STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN )

AND FAMILY SERVICES, )

)

Petitioner, )

)

vs. ) Case No. 02-2495

) YVONNE LINDSAY and LYTTLETON ) LINDSAY, )

)

Respondents. )

_________________________________)

RECOMMENDED ORDER

Administrative Law Judge (ALJ) Daniel Manry conducted the administrative hearing of this case on September 11, 2002, in Orlando, Florida, on behalf of the Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Richard Cato, Esquire

Department of Children and Family Services

400 West Robinson Street Suite S-1106

Orlando, Florida 32801-1782

For Respondent: J. William Masters, Esquire

2901 Curry Ford Road, Suite 207

Orlando, Florida 32806

STATEMENT OF THE ISSUE

The issue in this case is whether Petitioner should revoke Respondents' foster home license for use of corporal punishment of a foster child in violation of Section 409.175(8), Florida Statutes (2001), and Florida Administrative Code Rule 65C-13.010. (Citations to statutes are to Florida Statutes (2001), and citations to rules are to

rules promulgated in the Florida Administrative Code in effect on the date of this Recommended Order.)

PRELIMINARY STATEMENT

By letter dated April 3, 2002, Petitioner notified Respondents that Petitioner intended to revoke Respondents' foster care license (Notice of Revocation). Respondents timely requested an administrative hearing.

The original style of this case denoted the state agency as Respondent. That style, however, misrepresented the burden of proof in the case. The state agency has the burden of proving that it should revoke the foster home license. The Department of Children and Family Services (Department) should appear as Petitioner in the style of the case. The ALJ amends the style of the case nunc pro tunc to show the Department as Petitioner and Yvonne and Lyttleton Lindsay as Respondents.

At the administrative hearing, Petitioner presented the testimony of five witnesses and submitted three exhibits for admission into evidence. Respondent, Yvonne Lindsay, testified in her own behalf and submitted no exhibits for admission into evidence. The identity of the witnesses and exhibits, and the rulings regarding each, are set forth in the Transcript of the hearing filed with DOAH on January 27, 2003.

The parties originally requested 20 days after the filing of the Transcript in which to file their respective proposed recommended orders (PROs). The court reporter did not file the Transcript with DOAH but provided a copy to Petitioner prior to January 27, 2003. Counsel for Petitioner advised the

undersigned of the problem on January 21, 2002, and filed the Transcript with DOAH on January 27, 2003. Neither party filed a PRO.

FINDINGS OF FACT

1. Petitioner is the state agency responsible for licensing and regulating foster homes in Florida. Respondents are licensed foster parents.

2. On November 1, 2001, Petitioner's Child Protection Team received an abuse report alleging that Respondent, Yvonne Lindsay, had administered corporal punishment to a foster child under Mrs. Lindsay's care and identified in the record as D.J. D.J. was born on May 6, 1997.

3. D.J. urinated in the van owned by Respondents. D.J. urinated in the van regularly. Mrs. Lindsay became angry and grabbed D.J. forcefully by the arm.

4. Mrs. Lindsay testified that she did not spank D.J. Mrs. Lindsay's denial concerning corporal punishment is neither credible nor persuasive.

5. On November 2, 2001, members of the Child Protection Team examined D.J. at one of their offices. One team member who observed D.J. is an Advanced Registered Nurse Practitioner (ARNP). The ARNP has specialized in family practice since 1980 and was the supervising nurse practitioner in the examining room when other members of the Child Protection Team examined D.J.

6. The ARNP observed fresh red contusions on D.J.'s back as well as numerous healed lesions on D.J.'s buttocks from old

   injuries. The ARNP observed D.J. herself and supervised the examination.

   CONCLUSIONS OF LAW

7. DOAH has jurisdiction over the parties and subject matter of this cause. Sections 120.569 and 120.57(1). The parties received adequate notice of the administrative hearing.

8. Petitioner has the burden of proof in this proceeding. Petitioner must show by clear and convincing evidence that Respondent violated a specific statute or rule.

   Department of Banking and Finance v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996).

9. It is not sufficient for Petitioner to show that Respondent committed the acts alleged in the Notice of Revocation. There must be a specific evidentiary finding that Respondent violated a statute or rule. Mayes v. Florida Department of Children and Family Services, 801 So. 2d 980 (Fla. 1st DCA 2001). Only those grounds in the Notice of Revocation that violate a statute or rule can support the proposed denial of the application to renew Respondent's foster home license.

10. The Notice of Revocation alleges that Mrs. Lindsay used corporal punishment on D.J. The evidence is clear and convincing that Mrs. Lindsay committed the acts alleged in the Notice of Revocation. The use of corporal punishment by a foster parent in the discipline of a foster child violates the

prohibition in Rule 65C-13.010 against corporal punishment as well as the provisions of Section 409.175(8).

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusion of Law, it is

RECOMMENDED that the Petitioner enter a Final Order finding that Mrs. Lindsay used corporal punishment against one of her foster children in violation of Section 409.175 and Rule 65C-13.010 and revoking Respondents' foster care license.

DONE AND ENTERED this 6th day of March, 2003, in Tallahassee, Leon County, Florida.

___________________________________ DANIEL MANRY

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 6th day of March, 2003.

COPIES FURNISHED:

Richard Cato, Esquire Department of Children

and Family Services

400 West Robinson Street Suite S-1106

Orlando, Florida 32801-1782

J. William Masters, Esquire 2901 Curry Ford Road, Suite 207 Orlando, Florida 32806

Paul Flounlacker, Agency Clerk Department of Children

and Family Services 1317 Winewood Boulevard Building 2, Room 204B

Tallahassee, Florida 32399-0700

Josie Tomayo, General Counsel Department of Children

and Family Services 1317 Winewood Boulevard

Building 2, Room 204

Tallahassee, Florida 32399-0700

Jerry Regier, Secretary Department of Children

and Family Services 1317 Winewood Boulevard

Building 1, Room 202

Tallahassee, Florida 32399-0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 02-002495

Orders for Case No: 02-002495