STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BOBETTE DELISSER AND CHARLES DELISSER,

Petitioners,

vs.

DEPARTMENT OF CHILDREN AND FAMILY SERVICES,

Respondent.

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) Case No. 03-0969

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RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted in this case on September 4 and 5, 2003, by means of a video teleconference at sites in Tallahassee and Fort Pierce, Florida. Administrative Law Judge Michael M. Parrish of the Division of Administrative Hearings, was at the Tallahassee location. All other participants were at the Fort Pierce location.

APPEARANCES

For Petitioners: Spencer Bryant Siegel, Esquire

Silver, Wright & Siegel, LLP

1600 South Dixie Highway, Suite 300 Boca Raton, Florida 33432

For Respondent: Laurel Hopper, Esquire

Department of Children and Family Services

337 North Fourth Street Fort Pierce, Florida 34950

STATEMENT OF THE ISSUE

The issue in this case is whether the Petitioners' foster home license should be revoked for one or more of the reasons set forth in the notice of intent to revoke issued by the Department of Children and Family Services (Department) on February 3, 2003.

PRELIMINARY STATEMENT

By means of a written notice dated February 3, 2003, the Department notified Bobette Delisser and Charles Delisser (Delissers or Petitioners) of the Department's intent to revoke the Delisser's foster home license. The notice included the following reasons for the Department's intent to revoke:

The Department's authority to suspend, deny or revoke family foster care licenses may be found in Florida Statute 409.175(8) and Chapter 65C-13, Florida Administrative Code.

The decision was based in part on violation of 65C-13010(1)(b)5.c.(V)f. FAC stating that the substitute care parents must not use corporal punishment of any kind.

A foster child in your home has disclosed that you spank the child on her buttocks with your hand as a form of discipline.

A foster child in your home was physically disciplined and suffered from a black eye as a result.

65C-13.011(2)(a) FAC stating that limitation in regard to the number and ages of children to be served in a substitute

care family are based on observations of the stamina, capacities, and skills of the substitute care parents, the physical accommodations, and the effect of the number and ages of the children upon the equilibrium and interrelationships of family members. However, there should be no more than two infants, under two years old, in a substitute care family, including the family's birth children.

Several professionals have observed your family dynamics and determined that you are overwhelmed with the tasks needed to care for foster children in addition to your own children, and thereby lack the emotional support needed to foster children.

A foster child in your home was observed with bite marks as well as bruising on her arm. You have been unable to provide the supervision necessary to protect this child.

You have been observed lifting a toddler by the arm after being told that this type of lifting is harmful to the child.

The Department's notice of intent to revoke also advised the Delissers of their right to request an administrative hearing. The Delissers timely requested an administrative hearing, and in due course this matter was docketed with the Division of Administrative Hearings and scheduled for hearing.

At the final hearing on September 4 and 5, 2003, the Department presented the testimony of eleven witnesses. The Department's Exhibits numbered 1, 2, 3, 5, 6, and 7 were received in evidence.1 The Delissers both testified and they also presented the testimony of four other witnesses. The

Delissers' Exhibits numbered 1 through 10 and 12 were received in evidence.2

At the conclusion of the hearing the parties decided not to order a transcript of the hearing. The parties were allowed two weeks from the conclusion of the hearing within which to file their respective proposed recommended orders. The Department filed a timely Proposed Recommended Order on September 19, 2003. The Delissers filed a late Proposed Recommended Order on

October 14, 2003. The Department filed a prompt motion to strike the late-filed Proposed Recommended Order. The Delissers did not file any response to the motion to strike. The Department's motion to strike is granted.

FINDINGS OF FACT

1. The Delissers have been licensed to operate a foster home for many years. The Delisser foster home was relicensed on June 15, 2002.

2. During 2001, Janet Goodman worked for the Department and made a number of visits to the Delisser foster home during the second half of 2001. During the course of those visits, Bobette Delisser admitted to Janet Goodman that she needed some respite care for child K.D., because K.D. and Bobette Delisser had engaged in a physical altercation. On one occasion, the child K.D. was in respite care for three months. The child K.D. was also placed in respite care on other occasions.3

3. During the first half of 2002, Paula Wilson (Wilson) was employed by the Department as a Protective Investigator. In March of 2002, Wilson was assigned to finish an investigation involving the child K.D. During the course of finishing the investigation, Wilson spoke to Bobette Delisser. During one of their conversations, Bobette Delisser admitted to Wilson that she (Bobette Delisser) had hit the child K.D. over the head with a white sneaker shoe. Bobette Delisser sought to justify or to minimize the seriousness of striking the child K.D. by stating, about K.D., "Well, she's retarded."

4. Wilson also investigated another backlogged case concerning a child named T.J. The child T.J. had a black eye and a couple of small bruises on the upper part of her buttocks. The black eye and the bruises on T.J. resulted from an accident when T.J. fell down. The circumstances of the fall did not involve any neglect or intentional act by the Delissers.4

5. During the course of her investigations at the Delisser foster home, on one visit to the Delisser home Wilson found the child J.W. in a port-a-crib, without adult supervision, face down in a bowl of noodles. During the same visit, when Bobette Delisser entered the room, she picked up the child J.W. by the child's arm, stating she did not think it would hurt the child.

6. In October of 2002, Protective Investigator Amy Gregory (Gregory) investigated allegations of abuse to the child J.W.

   Gregory observed a cluster of oval shaped bruises on J.W.'s arm. The bruises appeared to be consistent with the child having been picked up by the arm. The child J.W. also had unexplained bruising on her head. During the course of her investigation, Gregory observed an adult granddaughter of the Delissers, who lived in the foster home at that time, pick up the child J.W. by an arm and swing the child to her hip. This conduct by the granddaughter, in conjunction with prior similar conduct by Bobette Delisser, and in conjunction with the cluster by bruises described above, indicates that the child was harmed by inadequate supervision and by neglect of the Delissers.

7. In November of 2002, Kristine Krtausch wrote a review of the Delisser's performance as foster parents based on her observations at their home and on conversations with the Delissers. During the observations by Krtausch, the Delissers appeared to be overwhelmed in their attempts to care for the children in their home. She also observed that the Delissers sometimes failed to use positive discipline; she observed them locking children outside and belittling the children. Krtausch also observed that the child T.J. was always treated differently from the other children. The Delissers tended to be short with T.J., as well as to frequently "put her down," rather than be supportive of T.J.

8. The Delisser's were aware of the Department's Discipline Policy and they agreed to abide by that policy. The Department's Discipline Policy prohibits corporal punishment and derogatory remarks.

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this proceeding. §§ 120.569 and 120.57, Fla. Stat.5

10. Section 409.175, Florida Statutes, reads as follows, in pertinent part:

    (2) As used in this section, the term:

    
    

    * * *

    
    

    (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.

    
    

    * * *

    
    

    (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.

    
    

11. Florida Administrative Code Rule 65C-13.010 reads as follows, in pertinent part:

    1. Responsibilities of the Substitute Parent to the Child.

       
       

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       5. Discipline.

       1. 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.

       2. The substitute care parents must help each child learn that he is responsible for his behavior by teaching him the natural and learned consequences of his behaviors.

       3. Substitute care parents should use positive methods of discipline, including the following:

          1. Reinforcing acceptable behavior.

          2. Verbal disappointment of the child's behavior.

          3. Loss of privileges.

          4. Grounding, restricting the child to the house or yard, or sending the child out of the room and away from the family activity; and

          5. Redirecting the child's activity, for example, if a child is playing with a

          sharp object take the object away, and replace it with a safe toy.

       4. The substitute care parents must not allow children in care to be subjected to verbal abuse, derogatory remarks about themselves and family members or threats of removal from the home.

       5. The substitute care parents must not subject children to cruel, severe, humiliating or unusual punishment, for example, to use soap to wash out the mouth, eating hot sauces or pepper, placing in hot water, kneeling on stones, etc.

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

       7. The substitute care parent must not delegate discipline or permit punishment of a child by another child or by an adult not known to the child.

       
       

12. When the facts established in this case are viewed in light of the statutory and rule provisions quoted above, it is clear that the Delisser foster home license is subject to revocation as a result of violations of several statutory and rule provisions. The statutory violations include intentional and negligent acts "materially affecting the health or safety of children in the home" (§ 409.175(9)(b)1., Fla. Stat.) and violation of "licensing rules promulgated pursuant to this section" (§ 409,175(9)(b)2, Fla. Stat.). The rule violations of most significance are those related to inappropriate discipline, including corporal punishment and derogatory remarks. Even though the Department failed to prove all of the reasons for revocation set forth in the notice of intent, what was proved is enough to conclude that the Delissers' foster home license

should be revoked. See Department of Children and Family Services vs. Reber Carswell, DOAH Case No. 02-2981 (Recommended Order issued December 12, 2002), and Department of Children and Family Services vs. Gladys Kelly, DOAH Case No. 02-0854 (Recommended Order issued May 31, 2002), recommending revocation of foster home licenses in cases presenting similar facts.6

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services issue a final order in this case revoking Petitioners' license to operate a foster home.

DONE AND ENTERED this 26th day of November, 2003, in Tallahassee, Leon County, Florida.

S

MICHAEL M. PARRISH

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 26th day of November, 2003.

ENDNOTES

1/ The Department's Exhibit number 4 was withdrawn.

2/ The Department objected to the Delissers' Exhibit number 11, and the objection was sustained.

3/ During the course of presenting evidence regarding respite care for the child K.D., the Department presented testimony about an incident in which Bobette Delisser allegedly left small foster children in her van without adult supervision. The Department has made proposed findings of fact regarding that incident. (See paragraphs 19 and 20 of the Department's Proposed Recommended Order.) The undersigned has not made any findings of fact regarding that incident because that incident is not mentioned in the notice of intent to revoke as one of the reasons for the intended revocation. Where an agency seeks to revoke a license, it is a departure from fundamental fairness to seek to revoke the license for reasons which are not mentioned in the notice to the licensee.

4/ The record contains conflicting evidence regarding how T.J. received a black eye and small bruises. The version put forth by the Delissers is more persuasive than the competing version.

5/ All citations to the Florida Statutes are to the current version of the statutes unless otherwise noted.

6/ Respondent also argues that the provisions of Florida Administrative Code Rule 65C-13.011, especially sections (2) (a) and (b) of the Rule, have a bearing on whether the license at issue here should be revoked. Rule 65C-13.011 appears to be more relevant to the issue of whether a specific foster home license should be granted, rather than to the issue of whether a specific foster home license should be revoked.

COPIES FURNISHED:

Laurel Hopper, Esquire Department of Children and

Family Services

337 North Fourth Street Fort Pierce, Florida 34950

Spencer Bryant Siegel, Esquire Silver, Wright & Siegel, LLP

1600 South Dixie Highway, Suite 300 Boca Raton, Florida 33432

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

Jerry Regier, Secretary Department of Children and

Family Services Building 1, Room 202

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: 03-000969

Orders for Case No: 03-000969