vs. ) Case No. 02-3885
Respondent. )
Pursuant to notice, a formal hearing was held in this case on January 8, 2003, in Tallahassee, Florida, before Errol H. Powell, a designated Administrative Law Judge of the Division of Administrative Hearings.
Whether Respondent's foster home license should be revoked.
By letter dated August 21, 2002, the Department of Children and Family Services (Department) notified Marie Claire Azulphar that it intended to revoke her foster home license for failure to meet minimum standards provided in Rule 65C-13, Florida Administrative Code. Specifically, the Department alleged the following to show that Ms. Azulphar failed to meet the minimum standards set forth in the said Rule:
On September 24, 2001, an abuse report was received alleging that a child in your foster home, M. A., complained that she was not comfortable with Louis Bryant, who resides on your property. A criminal background check revealed that Mr. Bryant had two charges of cocaine possession, including a conviction on June 15, 2001.
On January 8, 2002, you met with the licensing staff and agreed that in order to keep your license, you would have your tenant move out. It was clearly explained to you by DCF [Department] licensing personnel that according to Florida law, Mr. Bryant could not reside in the foster home since he has a disqualifying criminal record and is not able to be around the children. Additionally, you were told of the importance of revealing all members of your household so that their criminal background can be checked.
At the end of May 2002, the Department received a complaint from the juvenile court that a 12-year old foster child, F. D., was not treated well while in your care. The Guardian Ad Litem for the child verified that during the two-week period from May 8th
to May 20th of 2002, F. D. was suspended from school and allowed to remain home alone all day.
The Guardian also revealed that during the time that F. D. was in your home, she stayed out all night and you were unconcerned.
When the child called at around 4:00 in the morning and asked to return home, you refused to pick her up and F. D. had to call the Guardian Ad Litem for help.
Additionally, the Licensing counselor made an unannounced visit to your home at 8:00
P.M. on May 29, 2002. He found a 16-year old foster child home alone. He also observed the car belonging to Mr. Bryant parked in front of the house. When the counselor returned at 6:20 the next morning, Mr. Bryant's car was parked in a different position in front of the house. The Licensing counselor knocked on the door and an unidentified man answered and said that you were not home. Furthermore, the Department counselor for F. D. reported seeing a strange man in the home when he went out on May 22, 2002, to pick up the child.
By letter dated September 10, 2002, Ms. Azulphar requested a hearing on the Department's notice of intent to revoke her license. On October 4, 2002, the matter was referred to the Division of Administrative Hearings. A hearing was scheduled but was continued and rescheduled at the request of the Department.
At the hearing, the Department presented the testimony of four witnesses, one of whom was Ms. Azulphar, and entered two exhibits (Petitioner's Exhibits numbered 1 and 2) into evidence.
Ms. Azulphar testified in her own behalf, presented the testimony of four witnesses, two of whom were her former foster children, and entered ten exhibits (Respondent's Exhibits numbered 1-10) into evidence.
A transcript of the hearing was ordered. At the parties' request, the time for filing post-hearing submissions was set for more than ten days following the filing of the transcript. The Transcript, consisting of one volume, was filed on
February 3, 2003. The Department timely filed its post-hearing submission. Ms. Azulphar's post-hearing submission was not timely filed, however, the Department did not object to its untimely filing. Ms. Azulphar's post-hearing submission is hereby accepted. The parties' post-hearing submissions were considered in the preparation of this Recommended Order.
There is no dispute that, at all times material hereto, Ms. Azulphar had a foster home license issued by the Department.
Ms. Azulphar became a foster parent in January 1999.
As with all new foster parents, Ms. Azulphar was required to complete 30 hours of Model Approach to Partnership Parenting (MAPP) training. Among other things, the MAPP training involves discussions regarding duties and responsibilities of a foster parent, the sexual problems of
foster care children, and what to do if a foster care child runs away.
Ms. Azulphar and the Department entered into a Bilateral Service Agreement regarding foster care. Both of them agreed to abide by the terms of the Bilateral Service Agreement.
The Bilateral Service Agreement provided, among other things, the following:
The Department's responsibilities to the foster parents include:
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j. Support will be shown by responding within 24 hours to telephone messages, written correspondence or any other requests the foster parents may have.
* * * Commitment to the Child
The decision to accept a child into the home
is a major one. . . Most foster children have experienced severe emotional, sexual and/or physical abuse as well as trauma. It is not unusual for children who have been sexually abused to act out in sexual inappropriate ways. Foster parents must be aware that these children need extra monitoring, teaching and showing of appropriate affection in order to grow into healthy children. . . By accepting a child into the home, the foster parent(s) agree to the following responsibilities:
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d. To ensure that the child has supervision appropriate to his/her age and developmental level.
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Foster parents have responsibilities and duties to both the department [sic] and the child. Responsibilities to the department [sic] include:
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k. To notify the Department immediately if a child runs away, is missing or does not return home, even if the foster parent knows where the child is.
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s. To know where and with whom the child is staying and the type of supervision the child is receiving when foster parents approve an outing or overnight activity. . .
Non-compliance with any of the above provisions can result in termination of this service agreement by either the foster parents or the Department. Non-compliance with any of the above [sic] provisions may also result in the department [sic] revoking the home's license to provide foster care pursuant to Chapter 120, Florida
Statutes. . . .
Any person living with a foster parent is subject to a background check by the Department because such person would have contact with any foster child placed with the foster parent. Such person must not have a disqualifying criminal record1 in order for the person to remain in the foster home during the licensure of the foster home.
Ms. Azulphar had a tenant, Louis Bryant, who lived in an attached room to her home, which was converted from a garage. He had his own private entrance to his room.
In January 2002, the Department informed Ms. Azulphar that Mr. Bryant, not only had a criminal record, but also had a disqualifying criminal drug record and that, therefore, if she wanted to keep her license, he would have to move. Ms. Azulphar informed Mr. Bryant that he had to move. Mr. Bryant moved, and Ms. Azulphar provided documentation to the Department indicating that he had moved.
Ms. Azulphar described Mr. Bryant as a long-time friend and someone that she had relied upon when she first came to the United States. Mr. Bryant was also Ms. Azulphar's former supervisor. Further, even though he was a drug addict, who was skinny and dirty, smelled bad, and needed reminding to bathe, Ms. Azulphar described Mr. Bryant as the only person upon whom she could call when she had an emergency. She also indicated that Mr. Bryant was a handy man who performed repairs for her.
Ms. Azulphar admitted that, as to Mr. Bryant, she was a "co-partner." She further admitted that Mr. Bryant was someone she "needs to continue what she was doing."
In spite of her reliance upon Mr. Bryant as indicated, Ms. Azulphar showed a willingness to comply with the Department's requirements by requiring Mr. Bryant to move.
On or about May 8, 2002, a foster child, F.D.,2 was placed with Ms. Azulphar. F.D. was 12 years of age at the time.
F.D. was a special needs foster child because she had a history of being sexually abused at an early age and because F.D.'s father was deceased and her mother had voluntarily surrendered her parental rights.
F.D. was the subject of disciplinary action at school.
She was suspended for ten days from school for pulling a knife on another student.
During the suspension, Ms. Azulphar took F.D. to work with her. F.D. left Ms. Azulphar's workplace without
Ms. Azulphar's permission and knowledge. F.D. called her friends who came to Ms. Azulphar's workplace and F.D. left with them.
Ms. Azulphar discovered that F.D. was dating a young man who was much older than F.D. Ms. Azulphar believed that the young man was approximately 26 years of age because he "looked"
26 years of age and F.D.'s friends were dating young men who also looked 26 years of age. Ms. Azulphar believed that the young man was among the friends that F.D. contacted to leave Ms. Azulphar's workplace.
Also, during F.D.'s suspension, on the afternoon of May 16, 2002, her Guardian Ad-Litem came to Ms. Azulphar's home to visit F.D. The Guardian Ad-Litem knocked but no one
answered. F.D. emerged from a neighbor's house. Ms. Azulphar had left F.D. alone at home. Ms. Azulphar had instructed F.D. to wait for the Guardian Ad-Litem at home and to not go outside of the home.
Ms. Azulphar talked with the Guardian Ad-Litem on the telephone that same day. She expressed to the Guardian Ad-Litem that she wanted F.D. out of her home.
That evening on May 16, 2002, F.D. became so distraught and volatile that she took a knife and threatened to harm herself. Ms. Azulphar called the Department's emergency telephone number and was told to call the Crisis Center for Mobile Children (CCMC). Ms. Azulphar telephoned CCMC, which told her how to talk to F.D. Ms. Azulphar did as she was instructed and F.D. did not harm herself.
The next day, May 17, 2002, sometime in the evening after bedtime, which was around 9 p.m., F.D. slipped out of
Ms. Azulphar's home. Ms. Azulphar had taken a sleeping pill and was not aware that F.D. was gone.
Around 4 a.m. on May 18, 2002, Ms. Azulphar received a telephone call from F.D., who wanted Ms. Azulphar to come and get her. Ms. Azulphar did not want to drive at that time because she had taken the sleeping pill, so Ms. Azulphar asked
F.D. to have an adult come to the telephone. Ms. Azulphar believed that F.D. was at a party because of the background
noise that she heard, which sounded like a party. Ms. Azulphar recognized that the person who came to the telephone was not an adult, but Ms. Azulphar requested that F.D. be permitted to stay at the person's home until 6 a.m. when she (Ms. Azulphar) would pick-up F.D.
F.D. did not wait for Ms. Azulphar. She returned to Ms. Azulphar's home before Ms. Azulphar could get her.
Ms. Azulphar did not call the police when she discovered that F.D. was leaving her (Ms. Azulphar's) workplace with the young man who was 26 years of age and when she received the telephone call from F.D. The reason that Ms. Azulplhar did not call the police is that she believed that the police would do more harm than good to F.D., that F.D. had had enough trouble, and that F.D. was a Haitian as she was.
After F.D. returned to Ms. Azulphar's home on May 18, 2002, Ms. Azulphar contacted the Guardian Ad-Litem and requested the removal of F.D. from her home. The Guardian Ad-Litem reported the incident to the court and the court ordered an investigation and the removal of F.D. from Ms. Azulphar's home. The Guardian Ad-Litem did not know the results of the court's investigation.
During the time that F.D. was in Ms. Azulphar's home, Ms. Azulphar also had, in addition to her own child, T.A., two other foster children, A.A. and her sister, V.A.3 All of the
other children agree that F.D. could not be trusted, was a thief, and did not tell the truth.
After F.D. was removed from her home, Ms. Azulphar had another foster child placed in her home, who ran away. However, this time, Ms. Azulphar contacted the police and the Department when she discovered that the child had run away.
Sometime during the first two weeks that F.D. was placed with Ms. Azulphar,4 the Department's social worker for F.D., Luis Muriel, was making arrangements with Ms. Azulphar to pick-up F.D. Ms. Azulphar requested Mr. Muriel to come to her workplace since F.D. would be there with her; however, he wanted Ms. Azulphar to leave F.D. at home alone. Ms. Azulphar reminded him that she was not to leave F.D. at home alone. However,
Mr. Muriel instructed Ms. Azulphar to leave F.D. at home alone and informed Ms. Azulphar that he would be arriving at her home in 30 minutes.
Ms. Azulphar contacted a male friend, who was approximately 50 years of age, for assistance and requested that he wait at her home for Mr. Muriel, who would be arriving in 30 minutes. However, she instructed her friend to wait outside in his car, not in her home, and he agreed to do so. When
Mr. Muriel arrived at Ms. Azulphar's home and knocked on the door, Ms. Azulphar's friend opened the door. Ms. Azulphar's
friend had not complied with her instructions and had gone into her home while F.D. was in the home.
The Department had not performed a background check on Ms. Azulphar's friend. There was no reason for the Department to perform a background check on Ms. Azulphar's friend since it was never intended by Ms. Azulphar that he would have contact with the foster children placed with her. As to the incident, Ms. Azulphar had made it clear to her friend that he was not to go inside the home.
On May 29, 2002, around 8 p.m., the licensing counselor for Ms. Azulphar's case, Reynaldo Gonzalez, made an unannounced visit to her home after being contacted by F.D.'s Guardian Ad-Litem regarding F.D.'s situation. By that time,
F.D. had been removed from Ms. Azulphar's home. Mr. Gonzalez noticed a car parked outside of the house. He knocked on the door. The foster child A.A., who was approximately 15 years of age at the time, looked through the window and informed
Mr. Gonzalez that Ms. Azulphar was not at home. Mr. Gonzalez returned around 8:30 p.m. and A.A. was still at home alone.
Ms. Azulphar had left A.A. at home alone. However, Mr. Gonzalez's primary concern was not A.A.'s being at home alone.
On the following day, around 6:20,5 Mr. Gonzalez returned to Ms. Azulphar's home because the Department had received anonymous information that no food was in the home. The same car was parked outside Ms. Azulphar's home, but the front of the car was parked in a different direction.
Ms. Azulphar was not at home, but a relative, who was there, permitted Mr. Gonzalez to enter. Mr. Gonzalez found that there was adequate food in the home. None of the foster children were at home; they were with Ms. Azulphar.
Mr. Gonzalez's testimony failed to indicate whether the car was parked along the street or in the driveway. An inference is drawn that the car was parked along the street. Ms. Azulphar voluntarily admitted to Mr. Gonzalez that
Mr. Bryant was the owner of the car. She wanted Mr. Bryant to park his car outside her home to make it look as if someone were at home because her home had been burglarized when no one was at home. Further, on one of the days referred to, Mr. Bryant's car was either in disrepair or out of gas.6
According to the Department, Mr. Bryant should not have parked his car in front of Ms. Azulphar's home on the street. However, the evidence fails to demonstrate that such conduct by Mr. Bryant involved contact with the foster children.
Ms. Azulphar admits that, at times, Mr. Bryant accompanied her shopping even when the foster children were with
her.
Ms. Azulphar also admits that Mr. Bryant has cut her
grass, but only when she was at home. Ms. Azulphar testified that she obtained the approval of the Department for cutting the grass even though no Department witness recalled approving the action. Ms. Azulphar's testimony is found to be credible.
Ms. Azulphar used poor judgment as it relates to Mr. Bryant. At first, Ms. Azulphar believed that, even though
Mr. Bryant could not continue to be a tenant, she could continue to have Mr. Bryant to assist her with some things. She now knows that, as long as she has foster children, the Department does not want him to be around the children at any time.
Ms. Azulphar believed that nothing was wrong with Mr. Bryant parking or leaving his car at her house. Now, she
knows that the Department does not want him to be near her home when she has foster children.
A.A. and V.A. were removed from Ms. Azulphar's home when the Department decided to revoke her foster home license. Both A.A. and V.A. want to return to Ms. Azulphar's home.
Ms. Azulphar's daughter is in complete agreement with her mother being a foster parent and wants A.A. and V.A. to return.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto pursuant to Section 120.569 and Subsection 120.57(1), Florida Statutes.
Section 409.175, Florida Statutes, provides in pertinent part:
(1)(a) The purpose of this section is to protect the health, safety, and well-being of all children in the state who are cared for by family foster homes, residential child-caring agencies, and child-placing agencies by providing for the establishment of licensing requirements for such homes and agencies and providing procedures to determine adherence to these requirements.
* * *
(2) As used in this section, the term:
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(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.
License revocation proceedings are penal in nature.
The burden of proof is on the Department to establish by clear
and convincing evidence that Ms. Azulphar failed to meet minimum standards for a foster home license as set forth in Rule 65C-13, Florida Administrative Code. Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Company, 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington,
510 So. 2d 292 (Fla. 1987). The Department misinterprets Osborne Stern, supra. Florida's Supreme Court made it clear that the clear and convincing standard would not be applicable to license application proceedings--"While we take this opportunity to reaffirm our decision in Ferris, we decline to extend the clear and convincing evidence standard to license application proceedings." Osborne Stern, 670 So. 2d at 934. The case at hand is not a license application proceeding. The Department has granted a license to Ms. Azulphar and now it seeks to take that license away from her. The clear and convincing standard is applicable to the case at hand.
Rule 65C-13.010, Florida Administrative Code, provides in pertinent part:
Responsibilities of the Substitute Parent to the Child.
General.
To give love, acceptance, and care to a child without expecting a demonstration of appreciation from the child.
To provide the child with opportunities for normal growth and development.
To make a commitment to keep the child for a planned period of time.
To assist in preparing the child for return to the parents or permanent placement.
Family Care Activities.
1. Daily living tasks.
a. The substitute care parents are expected to provide structure and daily activities designed to promote the individual physical, social, intellectual, spiritual, and emotional development of the children in their home.
6. Health Care.
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* * *
d. The substitute care parents must immediately report to the department any serious changes in the health or mental health of a child.
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Responsibilities of the Substitute Care Parents to the Department.
The substitute care parents are required to participate in 30 hours of GPS- MAPP training and at least eight hours of in-service training annually which is provided or approved by the department in order to develop and enhance their skills.
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(e) The substitute care parents must sign an agreement to provide foster care for dependent children for each child placed in their home.
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(k) The substitute care parents shall notify the department immediately, day or night, if the following situations occur:
A child requires hospitalization or emergency medical treatment;
A child dies;
A child has run away, is abducted, or is absent from the home beyond reasonable expectations; and
Any other life-threatening situation occurs.
Responsibilities of the Department to the Substitute Care Parents and Children.
The department or private agency will provide and coordinate training opportunities for substitute care parents.
* * *
If the child is being placed into foster care, the child resource record must be provided to the substitute family within five days and contain the following items:
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The names and phone numbers of staff to be contacted in emergencies;
A copy of the performance agreement or permanent placement plan if it is completed.
The department must involve the substitute care parents, as team members, in all major decisions for children in their care.
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(h) The department must involve the substitute care parents in the development of the performance agreement, or permanent placement plan, and the visitation contract and will provide the parents with a copy.
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(s) The counselor will review the child's performance agreement or permanent placement
plan with the substitute care parents at least quarterly, or more often as needed.
The evidence is clear that Ms. Azulphar used poor judgment as it relates to Mr. Bryant. She continued to have Mr. Bryant to assist her with some things that involved contact with the foster children. She now knows that, as long as she has foster children, the Department does not want him to be around the children at any time.
Also, Ms. Azulphar believed that nothing was wrong with Mr. Bryant's parking or leaving his car in the front of her house on the street. The evidence fails to demonstrate that such conduct involved contact with the foster children. However, Ms. Azulphar now knows that the Department does not want him to be near her home as long as she has foster children placed with her.
The undersigned is not persuaded that the evidence is clear and convincing that Ms. Azulphar's judgment as to
Mr. Bryant reaches the level which would justify revocation of her license. The Department provides training for its foster parents, and the undersigned is persuaded that further training of Ms. Azulphar can remedy the problem of her understanding as to what type of contact is permitted or not permitted and the extent of the contact which is permitted, if any.
The evidence is not clear and convincing that
Ms. Azulphar used poor judgment in allowing her friend to wait outside her home for the Department's social worker while F.D. remained inside her home. No evidence was presented that
Ms. Azulphar had any prior indication that her friend would not do as she requested or that he had been in contact with the foster children prior to the incident. Further, the evidence fails to show that a background check of Ms. Azulphar's friend was required in that the evidence fails to show that he had or would have any contact with the foster children.
The evidence is not clear and convincing that Ms. Azulphar violated the Bilateral Agreement or Rule 65C-
13.010, Florida Administrative Code, when she left F.D. and A.A. at home alone. The Department's own employee, F.D.'s social worker, instructed Ms. Azulphar to leave F.D. alone at home.
The undersigned is not persuaded that leaving F.D. alone at home for 30 minutes is a violation. Taking into consideration the instructions of the Department's social worker, the undersigned is persuaded that, in the viewpoint of the social worker, leaving F.D. at home alone was appropriate supervision for her age and development in accordance with the Bilateral Agreement. Applying this same analogy to A.A., the undersigned reaches the same conclusion as to A.A.
The evidence is clear and convincing that Ms. Azulphar violated the Bilateral Service Agreement and Rule 65C-13.010, Florida Administrative Code, by failing to immediately notify the Department when she discovered that F.D. had left home after bedtime without her (Ms. Azulphar's) knowledge. It is understandable and reasonable that Ms. Azulphar would not want to drive after having taken a sleeping pill. However, with the knowledge that F.D. had recently attempted to harm herself,
Ms. Azulphar should have immediately contacted the Department, as she had done when F.D. attempted to harm herself.
To the contrary, in a subsequent situation involving a foster child in her care who had run away, Ms. Azulphar immediately notified the police and the Department. The undersigned is persuaded that Ms. Azulphar had come to realize that, when a foster child in her care runs away or is absent from her home without her knowledge or beyond a reasonable hour, she must contact the Department and the police, immediately. This subsequent incident should be considered a factor in a decision to revoke Ms. Azulphar's foster home license.
Consequently, even though Ms. Azulphar violated the Bilateral Agreement and Rule 65C-13.010, Florida Administrative Code, in one instance, Ms. Azulphar demonstrated that she has acquired more knowledge, regarding the care of foster children, and rectified her situation and conduct. Moreover, the
rectification occurred during the time period that she continued to have foster children in her care after the removal of F.D.
RECOMMENDED that the Department of Children and Family Services enter a final order dismissing the revocation action of the foster home license of Marie Claire Azulphar.
DONE AND ENTERED this 30th day of April, 2003, in Tallahassee, Leon County, Florida.
ERROL H. POWELL
Filed with the Clerk of the Division of Administrative Hearings this 30th day of April, 2003.
1/ The Department performs a criminal background check on anyone residing in a foster home. A disqualifying criminal record means in essence that the person has a criminal background which disqualifies him/her from having contact with the foster child(ren) placed in the foster home.
2/ F.D. did not testify at the hearing.
3/ At hearing, A.A. testified that she was 16 years of age and
V.A. testified that she was 14 years of age. No testimony was provided regarding their date of birth. The incident occurred approximately eight months prior to the hearing, which indicates that A.A. was approximately 15 years of age and V.A. was approximately 13 years of age at the time of the incident.
4/ The time period is not clear from the testimony, which is from Ms. Azulphar.
5/ In Mr. Gonzalez's testimony, he did not indicate whether it was a.m. or p.m. although the final agency action letter indicates a.m.
6/ Ms. Azulphar's testimony is not clear as to which day or the condition of the vehicle.
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.
