STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MICHAEL GARY and PAMELA GARY,

Petitioners,

vs.

DEPARTMENT OF CHILDREN AND FAMILY SERVICES,

Respondent.

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) Case No. 03-0069

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RECOMMENDED ORDER

On April 2, 2003, a formal administrative hearing in this case was held in New Port Richey, Florida, before William F. Quattlebaum, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioners: Michael and Pamela Gary, pro se

33025 Ranch Road

Dade City, Florida 33523

For Respondent: Frank H. Nagatani, Esquire

Department of Children and Family Services

11351 Ulmerton Road, Suite 314

Largo, Florida 33778-1630 STATEMENT OF THE ISSUE

The issue in the case is whether Michael and Pamela Gary's licensure to provide foster care should be revoked.

PRELIMINARY STATEMENT

By letter dated October 16, 2002, Michael and Pamela Gary (Petitioners) received notice that the Department of Children and Family Services (Respondent) was revoking the Petitioners' license to provide foster care. According to the letter, the grounds for revocation included "verified finding of Inadequate Supervision/Caregiver present," "verified finding of Inadequate Supervision/Caregiver absent," and "Some Indicators of Conditions Hazardous to Children."

The Petitioners challenged the revocation and requested a formal hearing. The Respondent forwarded the request for hearing to the Division of Administrative Hearings, which scheduled and conducted the proceeding.

At the hearing the Petitioners presented the testimony of four witnesses including Pamela Gary. The Respondent presented the testimony of two witnesses and had Exhibits numbered 1 and 2 admitted into evidence. No transcript of the hearing was filed. The Respondent filed a Proposed Recommended Order.

FINDINGS OF FACT

1. At all times relevant to this case, the Petitioners operated a foster home in Dade City, Florida.

2. On or about June 17, 2002, an abuse report was received that led to an investigation of the Petitioners' foster home.

3. An allegation that the children were left unattended in a van was not supported by any evidence.

4. During the investigation, the investigator heard of an incident during which one of the foster children housed in the Petitioners' home "pulled a knife" on one of the Petitioners' biological daughters.

5. The evidence establishes that one of the foster children in the house was standing outside and was throwing rocks at a glass window. One of the Petitioners' biological daughters told the foster child to stop throwing the rocks. From within his clothing, the foster child pulled out a dirty knife he had apparently taken from the kitchen.

6. Pamela Gary was present at the house but was outside at the time of the incident and apparently responded to the commotion. The child was told to drop the knife and he complied. Ms. Gary called law enforcement officers who responded to the scene. The foster child was removed from the home and committed for observation under the Baker Act. After the brief commitment, during which time the child's behavior became controlled by medication, he returned to the Petitioners' home where his behavior has improved.

7. There is no evidence that anyone was injured during the "knife incident."

8. During the investigation, the investigator was told that at some point, one child fell while jumping on the bed and fractured an arm.

9. The evidence establishes that a child jumping on a toddler bed approximately 18 inches high fell from the bed and broke an arm. Neither of the Petitioners was present at the time of the accident. A caretaker who allegedly does not speak English was watching the children.

10. The broken arm that resulted from the fall was clearly an accident. The evidence fails to establish that the child's injury was related to any abuse or neglect on the part of the Petitioners or any appropriate caretaker acting on their behalf.

11. According to Ms. Gary, the caretaker (who allegedly speaks Spanish) communicated with children who were unable to speak English. The evidence fails to establish how the Petitioners communicate with the caretaker if, as the Respondent suggests, the caretaker speaks only Spanish and the Petitioners speak only English. There is no evidence that the Petitioners are unable to communicate with the caretaker.

12. The Respondent asserts that the number of children housed in the Petitioners' foster home (13) exceeds the number permitted under their license. The evidence fails to support the assertion.

13. The abuse report lists 18 children as being present in the home during the investigation. Pamela Gary testified that five of the children identified as being residents of the home were visiting on a particular day to swim in the Gary pool when the investigator came to the house. The five visiting children were not residents of the home. Ms. Gary's testimony was not contradicted and is accepted as credible.

14. Of the remaining 13 children, six were the biological or adopted children of the Petitioners, leaving seven foster children. The number of children in a foster home can exceed the permitted number through a system of waivers from licensed capacity that considers familial relationships between children and previous foster care placements. Neither of the Respondent's witnesses credibly testified that the number of actual residents in the Petitioners' foster home exceeded their licensed capacity including waiver placements.

15. The investigator cited the upstairs portion of the Petitioners' home as being unclean and with the odor of urine. Pamela Gary testified that the only part of the house located on the second floor were bedrooms occupied by two teenaged girls and that the girls may not have picked up their clothing.

    Ms. Gary testified that the odor of urine was likely related to a cat litter box that had not been cleaned that morning.

    Ms. Gary's testimony was not contradicted and is accepted as credible.

16. The investigator cited the Petitioners' pool as unclean. Pamela Gary testified that the pool liner was black, and that the pool was not unclean. Ms. Gary's testimony was not contradicted and is accepted as credible.

    CONCLUSIONS OF LAW

    
    

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

18. In order to prevail, the Respondent must establish the allegations allegedly supporting the revocation of licensure by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d

    292 (Fla. 1987). In this case, the burden has not been met.

    
    

19. In defining the term "license" Section 409.175(1)(f), Florida Statutes (2002), provides as follows:

    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. If the cited Section is presumed to establish an applicable burden of proof which is less than "clear and

    convincing," it should be noted that in this case, the evidence presented fails to establish even by a preponderance, that the Petitioners' licensure should be revoked.

21. Section 409.175(9), Florida Statutes (2002), provides in relevant part as follows:

    (9)(a) The department may deny, suspend, or revoke a license.

    (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:

    1. An intentional or negligent act materially affecting the health or safety of children in the home or agency.

    2. A violation of the provisions of this section or of licensing rules promulgated pursuant to this section.

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

    4. Failure to dismiss personnel found in noncompliance with requirements for good moral character.

    
    

22. In this case, the evidence fails to establish that there has been any intentional or negligent act materially affecting the safety or welfare of children in the home.

23. The "knife incident" although potentially serious, resulted in no injury. There is no evidence that it was related to any intentional or negligent act of the Petitioners or any appropriate caretaker.

24. The broken arm resulted from an accident. There is no credible evidence that all accidents can be avoided. While

    jumping on a bed presents more of a hazard than standing still, children will jump on beds and accidents will happen. There is no evidence that it was related to any intentional or negligent act of the Petitioners or any appropriate caretaker.

25. As to the allegation that the Petitioners' foster home contained too many children, the evidence failed to establish that the number of actual residents in the Petitioners' foster home exceeded their licensed capacity including waiver placements.

26. Allegations related to cleanliness of the home or pool area were not supported by credible evidence.

RECOMMENDATION

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

RECOMMENDED that the Respondent enter a Final Order dismissing the proposed revocation of the Petitioners' licensure to provide foster care.

DONE AND ENTERED this 13th day of May, 2003, in Tallahassee, Leon County, Florida.

WILLIAM F. QUATTLEBAUM

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 13th day of May, 2003.

COPIES FURNISHED:

Michael Gary Pamela Gary 33025 Ranch Road

Dade City, Florida 33523

Frank H. Nagatani, Esquire

Department of Children and Family Services 11351 Ulmerton Road, Suite 314

Largo, Florida 33778-1630

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: 03-000069

Orders for Case No: 03-000069