STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MR. & MRS. WILLIE JENKINS, )

)

Petitioners, )

)

vs. ) Case No. 03-0901

)

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case pursuant to Section 120.569, Florida Statutes, and Section 120.57(1), Florida Statutes, on May 8, 2003, in Fort Lauderdale, Florida, before Stuart M. Lerner, a duly-designated Administrative Law Judge of the Division of Administrative

Hearings (DOAH).

APPEARANCES

For Petitioners: James O. Walker, III, Esquire

1339 Northeast Fourth Avenue Fort Lauderdale, Florida 33304

For Respondent: Deborah Guller, Esquire

Department of Children and Family Services

201 West Broward Boulevard, Suite 502 Fort Lauderdale, Florida 33301

STATEMENT OF THE ISSUE

Whether Petitioners' application for family foster home relicensure should be denied for the reasons set forth in the February 6, 2003, letter that Petitioners received from the Department of Children and Family Services (DCFS).

PRELIMINARY STATEMENT

By letter dated February 6, 2003, DCFS advised Petitioners of its intention to deny their application for relicensure of their family foster home. The letter read, in pertinent part, as follows:

Please be advised that your application for relicensure of you[r] family foster home has been denied. The Department's authority to deny a family foster home application for relicensure is pursuant to section 409.175(8), Florida Statutes, and Rule 65C- 13, Florida Administrative Code.

The Department based its decision, in part, on intentional or negligent acts by you.

Your actions materially affected the health and safety of children in your home and constitute a violation of licensing rules.

A. F.A.C. 65C-13.010(1)(b)6.b.: "The

substitute care parents are expected to transport children for medical, dental or other appointments which may be needed.

They are to remain with the child if needed for support and reassurance."

The foster care counselor reported that Mrs. Jenkins has not made any efforts to take T. G. to his scheduled doctor appointments. He has missed approximately six appointments because she did not transport him.

The Lauderdale Manors Elementary School staff reported that on December 19, 2003 [sic], Ms. Jenkins was called at 12:30 p.m. to pick up T. G. from school because he was very sick. Given that Mrs. Jenkins had not picked [up] the child at 3:30 p.m., the school nurse called her again to ask her to pick up T. G. Mrs. Jenkins reportedly stated that the school should allow the child to walk to the after school program, notwithstanding his medical condition. The school denied the request and ten minutes later she picked him up.

B. F.A.C. 65C-13.010(1)(b)9.b., c., d.:

"The substitute care parents are expected to take part in the selection and arrangements for educational programs which are appropriate to the child's age and ability."

"The substitute care parents must participate in the child's school activities, including regular teacher conferences."

"The substitute care parents are expected to keep the counselor informed of the educational plan, activities, school problems and the educational progress of the child, and to keep records of the same."

The Lauderdale Manors Elementary staff reported the following: Mrs. Jenkins on several occasions would not give money to her foster children to attend field trips. One of the teachers purchased the school uniforms for the foster children, as she was not happy with the appearance of the children when they attended school. Every time the school has contacted Mrs. Jenkins regarding any of the foster children, she never has time to talk to them or come to school.

C. F.A.C. 65C-13.010(1)(b)5.a.: " . . .

substitute parents must discipline children

with kindness, consistency and understanding."

F.A.C. 65C-13.010(1)(b)5.f.: "The

substitute parents must not use corporal punishment of any kind."

T. G. reported to one of the licensing counselors that Mrs. Jenkins pinches him and makes him stand in the laundry room when he is bad.

D. F.A.C. 65C-13.010(2)(b): "The

substitute care parents must participate in planning visits for the child with his parents and family members."

The foster care counselor for W. B. reported Mrs. Jenkins was uncooperative and non- compliant with a court order to arrange for

W. B.'s sister to pick him up on Thanksgiving Day.

Foster care counselor also reported Mrs. Jenkins never returned her calls concerning W. B.

By letter dated February 17, 2003, Petitioners requested an administrative hearing on DCFS's proposed denial of their application for relicensure. DCFS, on March 14, 2003, referred the matter to DOAH for the assignment of a DOAH Administrative Law Judge to conduct the hearing Petitioners had requested.

As noted above, the hearing was held on May 8, 2003. Twelve witnesses testified at the hearing: Ann Livermore, Monica Marshall, Doris Bennett, Khalilah Dawes, Jayme Dias, Sonia Martinez, Myrielle Smith, Mrs. Willie Jenkins, Isioma Anderson, Pastor James Ray, Heather La Suza, and Michael Watt.

In addition, a total of five exhibits (Petitioners' Exhibits 1 through 3, and Respondent's Exhibit's 1 and 4), were received into evidence.1

At the close of the evidentiary portion of the hearing on May 8, 2003, the undersigned, on the record, advised that proposed recommended orders had to be filed with the Division within 35 days.

DCFS and Petitioners filed their Proposed Recommended Orders on June 12, 2003. These post-hearing submittals have been carefully considered by the undersigned.2

FINDINGS OF FACT

Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made:

Background Information

1. Petitioners are husband and wife.

   
   

2. They operated a licensed family foster home at their residence in Fort Lauderdale, Florida, for seven years until their most recent license expired.

3. Among the foster children who were in Petitioners' home during the last of these seven years were T. G. and W. B.

4. T. G. was placed in Petitioners' home on October 14, 2002, and was removed from the home on January 21, 2003.

5. W. B. was placed in Petitioners' home on October 21, 2002, and was removed from the home on December 18, 2002.

6. On November 24, 2002, Petitioners and DCFS executed a Bilateral Service Agreement (Agreement) as part of the family foster home licensing process. By signing the Agreement, which provided, in pertinent part, as follows, the Parents "agree[d] to abide by [its] terms":

   Purpose:

   
   

   The purpose of this Agreement is to identify the expectations for both foster parents and the Department of Children and Families on behalf of the children and families that are served in the foster care program. Note: for this agreement Department means Family Safety staff, Lead Agency Staff, Contract Case Management staff or Contract Licensing staff. This agreement reflects standards of care that are current requirements in Florida Administrative Code, which are based on statutory authority found in section 409.175, Florida Statutes. The premise of this agreement is that the department and foster parents must work as partners to assure safety, to provide for the physical and mental well being and to obtain permanency for each child.

   
   

   * * *

   
   

   Foster Parent Responsibilities to the child include:

   
   

   * * *

   
   

   e. To assist in setting up visits with the child's parent(s) or relatives.

   
   

   * * *

   
   

   1. To transport and accompany the child to medical, dental, mental health appointments and visits with parents and relatives.

   2. To provide the child his/her monthly spending allowance which is included in the board payment.

      
      

   3. To buy the child clothing . . . with the monthly board rate and clothing

   allowance . . . .

   
   

   * * *

   
   

   m. To adhere to the department's safety and discipline policies, see Attachment A. Failure to comply with the department's safety and discipline policies may result in the removal of children from the home.

   
   

   * * *

   
   

   1. To promote the following conditions for the child in the home:

      
      

      1. Opportunities and encouragement to communicate and have contact with family members, friends and other people important to the child. . . .

         
         

      2. Respect for the child's body, person, . . . .

   
   

   * * *

   
   

   7. Provide the child with suitable clothing, [that] is appropriate for the weather, and appropriate for the age of the child. . . .

   
   

   Foster Parent Responsibilities to the department include:

   
   

   * * *

   
   

   j. To use the clothing allowance to

   buy the child clothes and shoes.

   
   

   * * *

   n. To allow the child to be removed from the foster home only by a department staff member, Guardian ad Litem, or another party granted permission by the department of the court. To verify the identi[t]y and authority of staff and other parties when not known to the foster parent.

   
   

   * * *

   
   

   p. 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. Children may not remain in an unlicensed setting for any time other than a planned, supervised outing or overnight activity without the explicit approval of the department.

   
   

   * * *

   
   

   Non-compliance with any of the above provisions may result in administrative action by the Department, which could include corrective action, suspension, revocation or denial of further licensure pursuant to Chapter 120, Florida Statutes.

   
   

7. Attachment A to the Agreement set forth the following "Discipline Policies," among others:

   The foster parents must discipline children with kindness, consistency, and understanding, and with the purpose of helping the child develop responsibility with self-control.

   
   

   * * *

   
   

   3. Foster parents must use positive methods of discipline, including the following:

   
   

   * * *

   (IV) Grounding, restricting the child to the house or yard, or sending the child out of the room and away from the family activity;

   
   

   * * *

   
   

   1. The foster parents must not subject children to cruel, severe, humiliating or unusual punishment . . . .

      
      

   2. The foster parents must not use corporal punishment of any kind.

   
   

   * * *

   
   

   11. The foster parents must not deny a child contact or visits with his family as punishment.

   
   

   * * *

   
   

   Alleged Violation of Rule 65C-13.010(1)(b)6.b., Florida Administrative Code

   
   

8. There were occasions when Petitioners refused, without adequate justification, to take T. G. to scheduled doctor's appointments. On these occasions, T. G.'s DCFS case worker, Khalilah Dawes, had to take T. G. to the doctor so he would not miss his appointments.

9. The morning of December 19, 2002, T. G. became ill at school (Lauderdale Manors Elementary School, where he was a kindergarten student). At around 10:00 a.m., he went to the school office, where he spoke to Monica Marshall, the school secretary. There was no school nurse at the school that day to care for T. G. Ms. Marshall, therefore, telephoned

   Mrs. Jenkins, told Mrs. Jenkins that T. G. was ill, and requested that Mrs. Jenkins come by school to pick T. G. up, which Mrs. Jenkins agreed to do. By 12:30 p.m., however, Mrs. Jenkins had not yet arrived at school. Ms. Marshall, therefore, telephoned Mrs. Jenkins again. During this second

   telephone conversation, Mrs. Jenkins told Ms. Marshall that, if she (Mrs. Jenkins) was not at school by the end of the school day, Ms. Marshall should just let T. G. walk across the street to the after-school program in which he was enrolled.

   Mrs. Jenkins did not pick T. G. up at any time during the regular school day.3

   Alleged Violation of Rule 65C-13.010(1)(b)9.b., c., and d., Florida Administrative Code

   
   

10. There were occasions when foster children in Petitioners' care, including T. G., did not go on school field trips because the children did not have money to pay for these trips. It is unclear from the evidentiary record, however, why, on these occasions, the children did not have the money they needed to go on the trips.4

11. Petitioners purchased school uniforms for the foster children in their care. The record evidence is insufficient to support a finding that "[o]ne of the teachers purchased the school uniforms for the foster children."

12. Mrs. Jenkins, on occasion, did come to Lauderdale Manors Elementary School to talk with school personnel about her foster children attending the school (although, in her dealings with the school's principal, Doris Bennett, Mrs. Jenkins was, at times, "loud and boisterous," displaying a "negative and nasty attitude"). Neither Mrs. Jenkins nor her husband, however, attended "report card night" at the school last year. This was a "well-attended" event, held after school (between 6:00 p.m. and 8:00 p.m.), where parents had an opportunity to receive their children's report cards from their children's teachers.

    It is unclear from the evidentiary record why Petitioners were not in attendance.

    Alleged Violation of Rules 65C-13.010(1)(b)5.a. and 65C- 13.010(1)(b)5.f., Florida Administrative Code

    
    

13. The record evidence is insufficient to support a finding that "Mrs. Jenkins pinche[d] T. G." or "ma[d]e[] him stand in the laundry room when he [was] bad."5

    Alleged Violation of Rule 65C-13.010(2)(b), Florida Administrative Code

    
    

14. Ann Livermore is employed as a case worker by Kids in Distress, Inc., a private entity that has contracted with DCFS to provide care case worker services to foster children supervised by DCFS.

15. Ms. Livermore was W. B.'s case worker during the 2002 Thanksgiving holiday period.

16. W. B.'s sister had obtained a court order allowing

    
    

    W. B. to go on an unsupervised visit to W. B.'s sister's home on Thanksgiving Day 2002.

17. W. B. had not had any previous unsupervised visits with his sister during his time with Petitioners.

18. At no time prior to Thanksgiving Day 2002 had Mrs. Jenkins had any contact with either Ms. Livermore or

    W. B.'s sister.

    
    

19. At 9:00 a.m. on Thanksgiving Day 2002, Ms. Livermore received a telephone call from W. B.'s sister, who complained to Ms. Livermore that Mrs. Jenkins would not let her take W. B. from Petitioners' home.

20. Ms. Livermore responded by telephoning Mrs. Jenkins and explaining to her that W. B. was "allowed to go with" his sister pursuant to a court order that had been obtained by the sister. Mrs. Jenkins responded that she was not aware of any court order and that, if Ms. Livermore intended to come to Petitioners' home to pick up W. B., she should bring with her appropriate identification, as well as be accompanied by the police. As Mrs. Jenkins credibly explained at the final hearing, she did not know what Ms. Livermore "looked like" and, with all the "phony stuff going on," wanted to make sure that

    W. B. would not fall into the wrong hands.

21. Later that same day, Ms. Livermore, accompanied by the police, went to Petitioners' home. She took with her, to show Mrs. Jenkins, a copy of the court order W. B.'s sister had obtained.

22. Mrs. Jenkins gave Ms. Livermore a difficult time, questioning the adequacy of Ms. Livermore's proof of identification and the authenticity of the copy of the court order that Ms. Livermore showed her. While Mrs. Jenkins may have been overly cautious in her dealings with Ms. Livermore, it does not appear that she was acting in bad faith.

23. Ultimately, W. B. was released to the custody of Ms. Livermore, who turned W. B. over to his sister.6

    CONCLUSIONS OF LAW

    
    

24. With certain exceptions not applicable to the instant case, "[a] person, family foster home, or residential child- caring agency shall not receive a child for continuing full-time care or custody unless such person, home, or agency has first procured a license from the [DCFS] to provide such care." Section 409.175(4)(a), Florida Statutes.

25. The nature of such license is described in Section 409.175(2)(f), Florida Statutes, as follows:

    "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.

    
    

26. With certain exceptions not applicable to the instant case, a license to operate a family foster home, "unless sooner suspended, revoked, or voluntarily returned, will expire automatically 1 year from the date of issuance. . . ." Section 409.175(6)(i), Florida Statutes.

27. "Ninety days prior to the expiration date, an application for renewal shall be submitted to [DCFS] by a licensee who wishes to have the license renewed. A license shall be renewed upon the filing of an application on forms furnished by the department if the applicant has first met the requirements established under this section and the rules promulgated hereunder." Section 409.175(6)(i), Florida Statutes.

28. Pursuant to Section 409.175(9), Florida Statutes, DCFS may deny an application for family foster home relicensure based on "[a]n intentional or negligent act materially affecting the health or safety of children in the [family foster] home" or "[a] violation of the provisions of this section or of licensing rules promulgated pursuant to this section."

29. Rule 65C-13.010, Florida Administrative Code, is among the rules promulgated by DCFS pursuant to the rulemaking authority granted it in Section 409.175, Florida Statutes. It provides, in pertinent part, as follows:

    65C-13.010 Substitute Care Parents' Role as a Team Member.

    
    

    1. Responsibilities of the Substitute Parent to the Child.

       
       

       * * *

       
       

       (b) Family Care Activities.

       
       

       * * *

       
       

       1. Discipline.

          
          

          a. The substitute care parents must discipline children with kindness, consistency, and understanding, and with the purpose of helping the child develop responsibility with self-control.

          
          

          * * *

          
          

          f. The substitute care parents must not use corporal punishment of any kind.

          
          

          * * *

          
          

       2. Health Care.

       
       

       * * *

       
       

       b. The substitute care parents are expected to transport children for medical, dental or other appointments which may be needed. They are to remain with the child if needed for support and reassurance. Shelter parents will not be expected to transport for this care.

       * * *

       
       

       9. Education.

       
       

       * * *

       
       

       1. The substitute care parents are expected to take part in the selection and arrangements for educational programs which are appropriate to the child's age and abilities.

          
          

       2. The substitute care parents must participate in the child's school activities, including regular teacher conferences.

          
          

       3. The substitute care parents are expected to keep the counselor informed of educational plans, activities, school problems and the educational progress of the child, and to keep records of the same.

       
       

       * * *

       
       

    2. Responsibilities of the Substitute Care Parents to the Child's Family.

       
       

       * * *

       
       

       (b) The substitute care parents must participate in planning visits for the child with his parents and family members.

       
       

       * * *

       
       

30. In acting on an application to renew a license to operate a family foster home, DCFS must follow the requirements of Section 120.60, Florida Statutes, Subsection (3) of which provides as follows:

    Each applicant shall be given written notice either personally or by mail that the agency intends to grant or deny, or has granted or

    denied, the application for license. The notice must state with particularity the grounds or basis for the issuance or denial of the license, except when issuance is a ministerial act. Unless waived, a copy of the notice shall be delivered or mailed to each party's attorney of record and to each person who has requested notice of agency action. Each notice shall inform the recipient of the basis for the agency decision, shall inform the recipient of any administrative hearing pursuant to ss.

    120.569 and 120.57 or judicial review pursuant to s. 120.68 which may be available, shall indicate the procedure which must be followed, and shall state the applicable time limits. The issuing agency shall certify the date the notice was mailed or delivered, and the notice and the certification shall be filed with the agency clerk.

    
    

31. In the instant case, in accordance with the requirements of Section 120.60, Florida Statutes, DCFS provided Petitioners with "written notice" of its intention to deny Petitioners' application for family foster home relicensure on the grounds that Petitioners, while licensed, had engaged in misconduct that "materially affected the health and safety of children in [their] home and [that] constitute[d] a violation of licensing rules." The alleged misconduct and the "licensing rules" allegedly violated were detailed in the notice (in sections A. through D. thereof).

32. Petitioners requested an administrative hearing and DCFS referred the matter to DOAH for the assignment of an Administrative Law Judge to conduct the requested hearing.

33. Where, as in the instant case, an applicant for the renewal of family foster home licensure disputes DCFS's announced intention to deny relicensure on the ground that the applicant engaged in wrongdoing, at the administrative hearing requested by the applicant, DCFS (as the party asserting the affirmative on the issue) has the burden of presenting proof of the alleged wrongdoing. See Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Co., 670 So. 2d 932, 934 (Fla. 1996); Florida Department of Transportation v. J.W.C. Co., Inc., 396 So. 2d 778, 788 (Fla. 1st DCA 1981); Florida Department of Health and Rehabilitative Services, Division of Health v. Career Service Commission, 289 So. 2d 412, 415 (Fla. 4th DCA 1974); Marlowe v. Department of Children and Family Services, Case No. 01-3093, 2002 WL 569449 (Fla. DOAH 2002)(Recommended Order); Hankerson v. Department of Children and Family Services, Case No. 01-1761, 2001 WL 1147181 (Fla. DOAH 2001)(Recommended Order); and Hyers v. Department of Children and Family Services, Case No. 97-2162, 1998 WL 929904 (Fla. DOAH 1998)(Recommended Order). DCFS, however, "is not required to prove the charges of wrongdoing by clear and convincing evidence; instead, the factual predicate need only be established by the greater weight of the evidence." See Rolle

    v. Crist, Case No. 01-2644, 2001 WL 1638505 *10 n.8 (Fla. DOAH

    2001)(Recommended Order), citing, Department of Banking and Finance v. Osborne Stern and Co., 670 So. 2d at 934-35.

34. While DCFS's proof at the administrative hearing held in the instant case was insufficient to establish that Petitioners committed the rule violations alleged in sections B. through D. of the notice of intent to deny, DCFS did establish, by a preponderance of the evidence, that Petitioners committed the violation of Rule 65C-13.010(1)(b)6.b., Florida Administrative Code, alleged in section A. of the notice. This proven rule violation is a serious one that raises concerns about Petitioners commitment to "protect the health, safety, and well-being" of foster children, which is the stated purpose of Section 409.175, Florida Statutes. See Section 409.175(1)(a), Florida Statutes ("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 . . . ."). Under such circumstances, DCFS should exercise its discretion, pursuant to Section 409.175(9), Florida Statutes, to deny Petitioners the privilege of being able to operate a family foster home in this state.

RECOMMENDATION

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

RECOMMENDED that, pursuant Section 409.175(9), Florida Statutes, DCFS enter a final order denying Petitioners' application for family foster home relicensure, based on the rule violation alleged in section A. of the notice of intent to deny.

DONE AND ENTERED this 30th day of June, 2003, in Tallahassee, Leon County, Florida.

STUART M. LERNER

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 30th day of June, 2003.

ENDNOTES

1/ Respondent's Exhibit 2 was offered into evidence, but was rejected.

2/ No transcript of the final hearing in this case has been filed with the Division.

3/ At no time did Mrs. Jenkins tell Ms. Marshall that she (Mrs. Jenkins) would be unable to pick T. G. up because she had a doctor's appointment (the reason Mrs. Jenkins gave at the final hearing for not picking up T. G. during the regular school day).

4/ Petitioners gave each of the foster children in their care a weekly allowance.

5/ The only record evidence supporting such a finding is hearsay evidence that would be inadmissible, over objection, in a civil proceeding in Florida. As such, it cannot, standing alone, support a finding of fact. See Scott v. Department of Professional Regulation, 603 So. 2d 519, 520 (Fla. 1st DCA 1992)("The only evidence which the appellee presented at the hearing was a hearsay report which would not have been admissible over objection in a civil action. [T]his

evidence was not sufficient in itself to support the Board's findings."); Doran v. Department of Health and Rehabilitative Services, 558 So. 2d 87, 88 (Fla. 1st DCA 1990)("The documents presented before the hearing officer were hearsay and did not come within any recognized exception which would have made them admissible in a civil action. . . . Because the only evidence presented by the department to show that Doran held assets in excess of the eligibility requirements for receiving ICP benefits consisted of uncorroborated hearsay evidence, we must reverse the hearing officer's final order."); and Section 120.57(1)(c), Florida Statutes ("Hearsay evidence may be used for the purpose of supplementing or explaining other evidence, but it shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions.").

6/ The sister was waiting for Ms. Livermore and W. B. in a predetermined location near Petitioners' home.

COPIES FURNISHED:

James O. Walker, III, Esquire 1339 Northeast Fourth Avenue Fort Lauderdale, Florida 33304

Deborah Guller, Esquire Department of Children and

Family Services

201 West Broward Boulevard, Suite 502 Fort Lauderdale, Florida 33301

Paul Flounlacker, Agency Clerk Department of Children and

Family Services Building 2, Room 204B 1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Josie Tomayo, General Counsel Department of Children and

Family Services Building 2, Room 204

1317 Winewood Boulevard

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: 03-000901

Orders for Case No: 03-000901