STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND FAMILY SERVICES,

Petitioner,

vs.

LILA DEAN,

Respondent.

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) Case No. 02-3782

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RECOMMENDED ORDER

Upon due notice, this cause came on for a disputed- fact hearing on November 19, 2002, in Palatka, Florida, before Ella Jane P. Davis, a duly-assigned Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Lucy Goddard, Esquire

Department of Children and Family Services

Post Office Box 390, Mail Sort 3 Gainesville, Florida 32602-0390

For Respondent: Robert E. Vest, Esquire

Post Office Box 2525 Palatka, Florida 32177

STATEMENT OF THE ISSUE

Whether the Department of Children and Family Services (DCF) may revoke Respondent's family foster care license due to

her continued contact with her husband after he was convicted of sexual molestation of their teen-aged daughter.

PRELIMINARY STATEMENT

DCF revoked Lila Dean's family foster home license and Mrs. Dean timely requested a disputed-fact hearing. The cause was referred to the Division of Administrative Hearings on or about September 27, 2002.

The parties entered into an extensive Joint Prehearing Stipulation which has been utilized as appropriate in this Recommended Order.

At the disputed-fact hearing, DCF presented the oral testimony of George Payne and had two exhibits admitted in evidence. Mrs. Dean presented no oral testimony but had four exhibits admitted in evidence.

A Transcript was filed on December 18, 2002, and the parties' timely-filed Proposed Recommended Orders have been considered in preparation of this Recommended Order.

FINDINGS OF FACT

1. Lila and Charles Dean were licensed foster parents from 1986 through 1991, when they adopted their daughter who was then six years old. The couple subsequently had two natural daughters.

2. In January 2001, the 16-year-old adopted daughter reported that Charles Dean had been sexually abusing her for

   approximately two years. Lila Dean immediately had Charles Dean move out of the family home. She has been consistently supportive of their daughter and went with her through the whole abuse and rehabilitation system.

3. Charles Dean was convicted in 2001 of sexually abusing his adopted daughter and is a registered sex offender.

4. Lila Dean has been separated from Charles Dean since January 2001, but she has not filed for divorce.

5. On March 13, 2002, Lila Dean was relicensed by DCF as a family foster parent.

6. George Payne, DCF Family Counselor III, testified that during the family foster home re-licensing process prior to March 13, 2002, Lila Dean admitted to him that she was seeing her husband away from the home once every two or three months to discuss child support, insurance, etc., and that he had no contact with the children. She also admitted that with the permission of his probation officer, Charles Dean had come to the home, while the children were at school, to make needed repairs. At Mr. Payne's urging, she promised to get someone else to make any future repairs.

7. The licensing process took eleven months because of DCF's concerns about Mrs. Dean's contacts with her husband, but DCF licensed her individually on March 13, 2002, because of her

   previous excellent record as a foster parent in another district supervised by Mr. Payne from 1985 to 1989.

8. On May 13, 2002, upon receiving an abuse report that Mrs. Dean had been having regular contacts with her husband; that Mrs. Dean had made comments in the community that

   Mr. Dean's sexual abuse was not that serious because the girl was his adopted, not his biological child; and that Mrs. Dean had spoken on Mr. Dean's behalf requesting that he be spared a prison sentence, DCF removed the two non-verbal, toddler, foster children who were then in Mrs. Dean's foster care and instituted a further abuse investigation.

9. After the abuse report had been received regarding Mrs.

   
   

   Dean's 2002 contacts with her husband, she told Mr. Payne that she was not looking for a relationship with any other men because they might want a sexual relationship with her, but that sex was not an issue with her husband, so she felt comfortable with him.

10. The abuse report, which related the couple's more frequent contacts, suggests the family is "working toward reconciliation," something Mrs. Dean has denied to Mr. Payne. The abuse report verifies the old abuse information as to the adopted daughter. It does not verify the tipster's allegation that Mrs. Dean does not view Mr. Dean's molestation of their adopted daughter as less serious than it would have been with a

    natural daughter. There is no direct testimony or otherwise reliable evidence on this issue, on the issue of whether or not she has spoken publicly on his behalf, or on the issue of whether or not a reconciliation is anticipated.

11. There is no evidence that Charles Dean has been in the home since Lila Dean was relicensed.

12. DCF sent a license revocation letter to Mrs. Dean after becoming aware of the increasing frequency of her contacts with her husband. The basis for revocation was given as:

    . . . pursuant to Section 409.175(8)(b)3. [now Section 409.175(9)(b)3] Florida Statutes, because your continued and repeated contacts with Charles Dean are inconsistent and incompatible with your role as a foster parent. It is not in the best interests of vulnerable foster children to be placed with a foster parent who considers it appropriate to have a relationship with a registered sex offender. [Clarification of statutory citation agreed-to and supplied].

    
    

13. Mr. Payne was unaware of any DCF rules Mrs. Dean broke by having contact with her husband.

14. Mr. Payne has no indication that any children, natural or foster, were at greater risk post-licensing than pre- licensing due to Mr. And Mrs. Dean's increased contact.

15. DCF cannot constantly monitor a foster parent to ensure that the children in her care are not placed at risk by her personal associations.

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause, pursuant to Section 120.57(1), Florida Statutes.

17. The parties stipulated that DCF has the duty to go forward and the burden of proof by a preponderance of the evidence in this case.

18. DCF is the administrative agency of the State of Florida charged with the duty to enforce and administer the provisions of Chapters 39 and 409, Florida Statutes.

19. Section 409.175(2)(f), Florida Statutes (2002), defines "license" as follows:

    (f) "License" means "license" as defined in

    s. 120.52(9). A license under this section is issued to a family foster home or other facility and is not a professional license of any individual. Receipt of a license under this section shall not create a property right in the recipient. A license under this act is a public trust and a privilege, and is not an entitlement. This privilege must guide the finder of fact or trier of law at any administrative proceeding or court action initiated by the department.

    
    

20. Section 409.175(9)(b)3., Florida Statutes (2002), states:

    (b) Any of the following actions by a home or agency or its personnel is a ground for denial, suspension, or revocation of a license:

    * * *

    
    

    3. Noncompliance with the requirements for good moral character as specified in paragraph (5)(a).

    
    

21. DCF relies upon Section 409.175(5)(a)5., Florida Statutes (2002), which states, in part:

    (5)(a) . . . The requirements for licensure and operation of family foster homes, residential child-caring agencies, and child-placing agencies shall include:

    
    

    * * *

    
    

    5. The good moral character based upon screening, education, training, and experience requirements for personnel.

    
    

22. Section 39.201(6), Florida Statutes (2002), states, in pertinent part:

    (6) . . . Information in the central abuse hotline and the department's automated abuse information system may be used by the department, its authorized agents or contract providers, the Department of Health, or county agencies as part of the licensure or registration process pursuant to ss. 402.301-402.319 and ss. 409.175- 409.176.

    
    

23. Mrs. Dean argues in her Proposed Findings of Fact that upon authority of Mayes v. Department of Children and Family Services, 801 So. 2d 980 (Fla. 1st DCA 2001), there must be specific record evidence before the trier of fact to indicate how the foster parent violated statutes or rules sufficient to justify revocation of a foster parent's license, and in the

    absence of a specific rule prohibiting off-premise contact with her husband or specifically establishing that these contacts constituted lack of good moral character, her license cannot be revoked.

24. DCF asserts that Section 409.175(9)(b)3., Florida Statutes, allows the agency to revoke Mrs. Dean's license when she has not complied with the requirement for good moral character as specified by DCF rules.

25. Although procedurally outdated, the substantive reasoning of Anderson v. Department of Health and Rehabilitative

    Services, 482 So. 2d 491 (Fla. 1st DCA 1986), remains viable. Therein, the First District Court of Appeal held that

    . . . we do not find that the circumstances recited in the order required the immediate closing of appellant's facility instead of some lesser and fairer alternative . . .

    Appellant offered to prevent access by her husband to children at the facility during the hours it was open, and nothing appears in the order that would indicate such could not have been done pending hearing and disposition of the formal complaint against appellant. Had HRS so ordered, and thereafter learned that appellant had failed to comply with its order because her husband was found at the facility with the children, HRS would then have statutory grounds for automatic revocation of appellant's license. Section 402.3055(5)(h), Florida Statutes (1983). The reason advanced by HRS in its brief, i.e. that it did not have sufficient personnel to monitor the whereabouts of appellant's husband on a daily basis, is not shown by the order to be sufficient to bypass this less drastic and fairer remedy.

    There is no showing of any facts to suggest that appellant or her husband would have disobeyed such an order once it was issued by HRS. Cf.-Saviak v. Gunter, 375 So. 2d 1080 (Fla. 1st DCA 1979).

    
    

    The case herein differs from Anderson, supra, which was further clarified in Anderson v. Department of Health and Rehabilitative Services, 485 So. 2d 849 (Fla. 1st DCA 1986), because herein Mr. Dean already has been adjudicated guilty of a crime and registered as a sexual offender. However, even where such adjudication has occurred, revocation of his wife's license is inappropriate until such time as DCF determines Mr. Dean has had access, either with Mrs. Dean's approval or her acquiescence, to children on her child care property. There simply is no evidence in this record that such access has ever occurred.

26. DCF has proven by a preponderance of the evidence that after she received her family foster care license, Lila Dean increased her off-premises contacts with her husband, a registered sex offender, to meeting on a weekly to bi-weekly basis, but DCF has demonstrated no inclination on Mrs. Dean's part to expose either her own children or any foster children in her care to Mr. Dean. Had the Agency established that molestation of their adopted daughter by Mr. Dean was "not serious," in Ms. Dean's opinion, merely due to a lack of blood descent and that a reconciliation with Mr. Dean was afoot, those elements, combined with Mrs. Dean's prior failure to recognize

the molestation of her adopted daughter or to sufficiently inspire that daughter's confidence in communicating her predicament to Mrs. Dean over the two years that Mr. Dean's molestation continued, there might be sufficient evidence to revert to the discretion, expertise, and experience of agency personnel to deny/revoke Mrs. Dean's license. However, all those necessary elements have not been established herein.

RECOMMENDATION

Based on the foregoing Findings of Facts and Conclusions of Law, it is

RECOMMENDED that the Department of Children and Family Services enter a final order reinstating the family foster home license of Lila Dean and specifically limiting any appearance on the foster home premises by Charles Dean.

DONE AND ENTERED this 17th day of January, 2003, in Tallahassee, Leon County, Florida.

ELLA JANE P. DAVIS

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 17th day of January, 2003.

COPIES FURNISHED:

Lucy Goddard, Esquire Department of Children and

Family Services

Post Office Box 390, Mail Stop 3 Gainesville, Florida 32602

Robert Vest, Esquire

613 St. Johns Avenue Suite 212 Post Office Box 2525

Palatka, Florida 32177

Paul F. Flounlacker, Jr., 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

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: 02-003782

Orders for Case No: 02-003782