The Issue The issue in this case is whether Respondent should deny Petitioners' application for a license to provide foster home care for dependent children pursuant to Section 409.175, Florida Statutes (1999). (All statutory references are to Florida Statutes (1999) unless otherwise stated.)
Findings Of Fact Respondent is the state agency responsible for licensing and regulating foster care in the state. Petitioners were foster care parents until October 5, 2000, when Petitioners voluntarily surrendered their foster care license for medical reasons. Prior to October 5, 2000, Mrs. Williams suffered from high blood pressure and dizziness. She was physically unable to care for foster children and asked that Respondent remove all foster children from her home. Before her medical problems began, Mrs. Williams complained to Respondent that she could not provide foster care for children with behavior problems. Mrs. Williams asked Respondent to remove certain children from her home because they presented behavioral problems with which she could not cope. In March of 2001, Petitioners applied for a new license to provide foster care. Petitioners did not provide any medical evidence, during the hearing or the application process, that Mrs. Williams has recovered from her medical problems. Her medical problems have a long medical history and come and go each year. Mrs. Williams is 62 years old. On the family profile sheet filed with Respondent, Mrs. Williams lists her occupation as "disabled."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order denying Petitioners' application for a license to provide foster care to dependent children. DONE AND ENTERED this 31st day of October, 2001, in Tallahassee, Leon County, Florida. DANIEL MANRY 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 31st day of October, 2001. COPIES FURNISHED: Virginia A. Daire, 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 Wilbert and Estella Williams 412 Pine Avenue Sanford, Florida 32771 Craig A. McCarthy, Esquire Department of Children and Family Services, District 7 400 West Robinson Street Orlando, Florida 32801
The Issue The issue in this case is whether Petitioner should be exempt from disqualification for employment pursuant to Section 435.07(3), Florida Statutes (1997). (All chapter and section references are to Florida Statutes (1997) unless otherwise stated.)
Findings Of Fact Petitioner seeks an exemption for employment in a position for which an exemption is required pursuant to Sections 435.06 and 436.07(1). Petitioner seeks the exemption to operate a day care service out of her home. Petitioner is an employer and an employee within the meaning of Sections 435.02(1) and (2). Petitioner operates an unlicensed day care center from her home and employs at least one other person to assist her in providing day care for an undetermined number of children. Respondent is the licensing agency defined in Section 435.02(3). Petitioner has provided day care services for parents in the neighborhood on an intermittent basis from 1979 through the present. Petitioner has provided day care services to some parents gratuitously while other parents have paid for day care services. Parents who have paid for day care services have paid according to their means. No evidence established a fee schedule for day care services. Petitioner knows she is required to obtain a license in order to operate a day care business. In 1987, Petitioner obtained such a license but allowed that license to expire. On October 27, 1993, the Orange County Sheriff's Office charged Petitioner with aggravated child abuse in violation of Section 827.03, Florida Statutes (1993) ("Section 827.03"). Violation of Section 827.03 is a felony which disqualifies Petitioner from employment pursuant to Sections 435.03(2)(x) and 435.04(2)(x). The state attorney reduced the charges against Petitioner to a first degree misdemeanor charge of child abuse. Petitioner entered a plea of nolo contendere to the misdemeanor charge in Case Number MO 93-17467. The court withheld adjudication of guilt, placed Petitioner on supervised probation for six months, required Petitioner to pay fines and costs of $115, and required Petitioner to complete a parenting program. Petitioner satisfied the terms of her probation, although Petitioner did not do so in a timely manner. Petitioner missed at least one meeting with her probation officer and required additional time to pay the fine and court costs. Sometime in February 1999, Petitioner applied for a license from Respondent to operate her existing day care service. Respondent denied the application on the basis of the 1993 misdemeanor charge. On February 25, 1999, Petitioner requested an exemption from disqualification. Respondent denied the request for exemption, and Petitioner requested this hearing. Sufficient time has elapsed since the incident within the meaning of Section 435.07(3). Approximately six years have elapsed since the incident. The nature of the harm caused to the victim was significant. On October 17, 1993, Petitioner administered corporal punishment to her eight-year-old biological grandson using a telephone cord. The punishment left two open wounds above and below the left knee and a raised looped bruise on the leg. The wounds and bruises were visible to the arresting officer on October 27, 1993. The nature of the harm to the victim was not life threatening and did not require medical treatment. School officials observed the injuries to the victim and reported them to the Sheriff's Office. Petitioner denies that the open wounds observed by the arresting officer were caused by the incident. Petitioner claims the open wounds were caused during an accident at play. However, resolution of that factual issue is not necessary in order to determine whether Petitioner is entitled to an exemption. A more important issue is whether the incident was a single isolated incident or a common practice by Petitioner. On that issue, there is conflicting evidence. The Charging Affidavit alleges that the victim claimed Petitioner routinely "whipped" the victim, his brother, and his sister with a telephone cord. Petitioner denies she disciplined any of her grandchildren with anything but her hand other than the one incident at issue in this proceeding. Petitioner claims that the incident arose from her frustration over recurring teacher complaints to Petitioner that the victim was disrupting classes and not performing in school and over Petitioner's inability to correct the victim's misbehavior after repeated attempts to address the situation without spanking the victim. The factual issue is resolved by the testimony of the mother of the victim and the testimony of other mothers who entrust the care of their children to Petitioner. The mother of the victim is the mother of the victim's brother and the victim's sister and also is Petitioner's biological daughter. The mother testified at the hearing that the incident in 1993 was the only time Petitioner had disciplined her children with anything but a minor hand slapping. The mother's testimony was credible and persuasive and consistent with the testimony of other mothers who have entrusted, and continue to entrust, the care of their children to Petitioner. There is no evidence that Petitioner has ever disciplined any child unrelated to Petitioner. Petitioner demonstrated sufficient evidence of rehabilitation since the incident in 1993. After Petitioner completed the parenting course required by the terms of her probation, Petitioner continued her education in child care. She completed three courses given by Respondent and earned 33 credit hours. Petitioner completed courses in "Fundamentals of Child Care," "Developmentally Appropriate Practices for Young Children," and "Introductory Child Care Training Courses." Petitioner demonstrated sincere remorse for the 1993 incident. Petitioner also demonstrated an awareness of the emotional harm caused, her importance to young children in her care, and an adequate awareness of appropriate parenting for children while they are in her care. Petitioner continued to care for the victim after 1993 without further incident. The mother of the victim and the mothers of other children continued to entrust the care of their children to Petitioner after the incident. The testimony of these mothers was consistent, credible, and persuasive. Petitioner has repaired her relationship with the victim. Both have learned to accept responsibility for their actions. The victim is now a well-adjusted young man who loves his grandmother and enjoys spending time with her. Counsel for Respondent exposed several inconsistencies in Petitioner's testimony with the intent to discredit Petitioner's testimony. Those instances are a matter of record and not addressed individually in this Recommended Order. After hearing the testimony of the mothers at the hearing, it is unlikely that Petitioner intended misrepresent the facts. It is more consistent with the testimony of the mothers at the hearing to find that the discrepancies in Petitioner's testimony resulted from Petitioner's lack of knowledge and business acumen rather than from her lack of good faith. Counsel for Respondent made much of the fact that Petitioner has operated, and continues to operate, an unlicensed day care center out of her home. Counsel noted in the record that the letter denying Petitioner's application for a license provides Petitioner with notice that the operation of an unlicensed day care business is a misdemeanor. Petitioner acknowledges this fact but claims that the day care center is her only means of financial support and the only affordable alternative for working parents who utilize her service. The issue of whether Petitioner currently operates an unlicensed day care center must be addressed in a separate proceeding if Respondent chooses to do so. Respondent must separately charge Petitioner with operating an unlicensed day care center, give Petitioner adequate notice of the charge, give Petitioner a point of entry, and provide Petitioner with a reasonable opportunity to defend the charge. Respondent cannot raise that charge for the first time in this proceeding as a ground for denying the exemption requested pursuant to Section 435.07(3) and effectively transfer the burden of proof to Petitioner.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order granting Petitioner's request for exemption. DONE AND ENTERED this 20th day of December, 1999, in Tallahassee, Leon County, Florida. DANIEL MANRY 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 20th day of December, 1999. COPIES FURNISHED: John S. Slye, General Counsel Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Samuel C. Chavers, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Carmen Sierra, Esquire Department of Children and Family Services 400 West Robinson Street Orlando, Florida 32801-1782 Annie Bell 2218 Nantes Court Orlando, Florida 32808
The Issue Whether or not Petitioner's application for an emergency shelter care home license should be approved.
Findings Of Fact Petitioners received a respite care license from Respondent on February 23, 1990 which allowed Petitioners to babysit foster children for short periods of time. This license expired by its terms on February 23, 1991. On January 20, 1991, Petitioners applied for a license to provide emergency shelter family home care for dependent children. Petitioners have a son, approximately 23 years of age, who lives with them and who has certain psychiatric problems. Respondent denied Petitioners' application on April 5, 1991 on the basis that Petitioners lacked the ability to provide for the psychological development of foster children due to the emotional instability in their home. Respondent reached that conclusion based on the medical opinion of Dr. Horatio Arias, M.D., a psychiatrist who was employed by Respondent and who provided psychological treatment to Petitioners' son. Petitioners' son, while under Dr. Arias' medical attention, was administered psychotropic medication for a mental disorder. Dr. Arias opined that Petitioners should not be given the responsibility of caring for foster children as such children are often from abused, neglected, or abandoned families and they are, at times, aggressive. Dr. Arias related instances wherein Petitioner, Mr. French, shouted and hollered at his son and there were often shouting and screaming matches between Mr. French and his son. The son felt threatened by Mr. French "because the patient (the son) didn't agree with him on certain things. (Deposition of Arias pp. 32-33). Based on the relationship between Mr. French and his son, Respondent ran away from home and went to a crisis center supervised by Respondent. He stayed in the center for a short while and was thereafter admitted to a state psychiatric hospital. He was released from the hospital and now lives with Petitioners. Mr. French admits that he has, at times, had shouting matches with his son and that he talks louder than normal because he is hard of hearing. He also acknowledged that he should be wearing two hearing aids based on his hearing impairment. The placement of foster children in Petitioners' home could cause stress which would negatively impact on their son who lives with them. This could result in behavior regression (by the son). Such placement could also cause psychological regression for the foster children which would negatively impact their psychological development. Dr. Arias opined that if Petitioners were allowed to care for foster children in their home, that such be done on a temporary basis in a trial manner. Children tend to tease and upset persons who suffer from psychiatric problems such as Petitioners' son. (Respondent's Exhibit 2, p. 8) It is not feasible for Petitioners to be licensed to provide emergency shelter care on a trial basis as it is impossible to determine how long the placement will last or how many children will need to be placed with the Petitioners at any given time.
Recommendation Based on the foregoing findings of fact and conclusions of law it is RECOMMENDED that: Respondent enter a final order denying Petitioners' application for a license to provide emergency shelter family home care at this time. DONE AND ORDERED this 15th day of December, 1993, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of December, 1993. COPIES FURNISHED: Robert Powell, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Kim Tucker, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Wendell and Alta French, pro se 6133 Shirley Avenue Gibsonton, Florida 33534 Raymond R. Deckert, Esquire Department of Health and Rehabilitative Services 4000 West Dr. Martin Luther King Jr. Blvd. Tampa, Florida 33614
The Issue The issue is whether Ennis and Sharon Clements (Respondents) committed the violations set forth in correspondence of the Department of Children and Family Services (Petitioner); and, if so what penalty should be imposed with regard to Respondents' Foster Care License?
Findings Of Fact Respondents are licensed by Petitioner as foster parents on an annual basis. They were last licensed by Petitioner on August 18, 1999. On or about December 23, 1999, Petitioner's representatives received a telephone call with regard to a minor child in Respondents' custody named D.H. Allegations were made that D.H. had been discovered to have bruises on both arms, his back and legs in the course of a visit to the family visitation center. The family visitation center is a facility operated by Petitioner where foster children are brought for visitation with their real parents. A family services counselor in Petitioner's employ investigated the matter and observed the bruises and stripes on D.H.'s body on December 23, 1999, and made an immediate referral of the matter to Petitioner's child protection team. Bruce McIntosh, M.D., is a member of the team. He examined D.H. and determined that the injuries to the child were consistent with being struck many times with a belt and constituted, in his expert opinion, child abuse. Photographs presented at the final hearing and taken in proximity to the examination corroborate Dr. McIntosh's findings. The testimony of the minor child, D.H., at the final hearing establishes that he had been struck several times by Respondent Ennis Clements and Shannon, the teenage son of Respondents, prior to D.H.'s travel to the family visitation center. Prior to licensure, Respondents were told that corporal punishment was not to be used with regard to foster children placed with them by Petitioner. Both Respondents signed forms at the time of their licensure as foster parents, indicating their understanding of this directive from Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that a final order be entered by Petitioner confirming the revocation of Respondents' licensure. DONE AND ENTERED this 13th day of November, 2000, in Tallahassee, Leon County, Florida. DON W. 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 13th day of November, 2000. COPIES FURNISHED: Roger L. D. Williams, Esquire Department of Children and Family Services Post Office Box 2417 Jacksonville, Florida 32231-0083 Ennis Clements Sharon Clements 1173 Lake Forest Boulevard Jacksonville, Florida 32208 Virginia A. Daire, 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 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether the Respondents' foster care license should be revoked.
Findings Of Fact At all times material to this matter, the Respondents were licensed as a foster home. During the course of such licensure, a minor child, M.A.G., was placed within Respondents' home. It was Respondent, Bertha Sosa's intention to adopt M.A.G. and her minor brother who was also placed with Respondents. Respondents were approved for licensure as foster parents through a private company. Such company was a third party screening agent used by the Department to process foster home applicants. For reasons unknown, such company did not obtain Respondents' signature to or agreement for certain provisions which are required for licensure. For example, all foster home licensees are required to execute service agreements. No such agreement has been located for Respondents. Pertinent to the service agreements are requirements regarding discipline which may be utilized by foster care licensees. In this instance, the discipline policy agreement prohibits: hitting a child with any object; slapping, smacking, whipping, washing mouth out with soap, or any other form of physical discipline; and humiliating or degrading punishment. While the Respondents do not acknowledge that they executed such agreements, it is undisputed that the failure to do so would result in the denial of initial licensure. The only reason Respondents sought initial licensure was to be able to adopt children. They were not then, and were not at the time of the hearing, interested in foster care. The foster care program was the vehicle they chose to be able to adopt. M.A.G. has a history of physical and sexual abuse. It is not uncommon for children with such history to exhibit inappropriate behaviors. Such behavior may include, as described by Mrs. Sosa, "humping." Also, M.A.G. had difficulty with telling lies. Mrs. Sosa admitted that when M.A.G. exhibited inappropriate sexual behavior, she would force the child into a cold shower. Mrs. Sosa admitted that when M.A.G. lied, she would wash her mouth with soap. On or about March 11, 1996, an investigation of abuse allegations began regarding M.A.G. and the Respondent, Juan Sosa. M.A.G. alleged that while Mrs. Sosa was out of the home, Mr. Sosa hit her several times with a broomstick. According to M.A.G., such conduct was the result of M.A.G.'s disobedience and disruptive behavior which culminated in discipline. Bruises consistent with a blunt instrument were observed on M.A.G.'s legs and arm. M.A.G. bragged that she could withstand, or feel no, pain. The bruises were photographed within two days of the alleged incident. Mr. Sosa denied inflicting the injuries sustained by M.A.G.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Department of Children and Families enter a final order affirming the revocation of Respondents' foster care license. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 28th day of February, 1997. JOYOUS D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 28th day of February, 1997. COPIES FURNISHED: Colleen Farnsworth Assistant District Legal Counsel Department of Children and Families 401 Northwest 2nd Avenue, Suite N-1014 Miami, Florida 33128 Lee Marks, Esquire 757 41st Street Miami Beach, Florida 33140 Gregory D. Venz Agency Clerk Department of Children and Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard A. Coran General Counsel Department of Children and Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact Petitioner was an employee of the Respondent at a boys' detention center in Hillsborough County when he was accused by a resident thereof of having physically abused him. The matter was reported to the Department of Health and Rehabilitative Services' Abuse Register and, thereafter, Petitioner requested a hearing under Section 120.57(1), Florida Statutes, on the Department's denial of his request to amend or expunge the report of abuse. A formal hearing was thereafter held on the matter before the undersigned who, on January 10, 1994, entered a Recommended Order to the effect that the abuse report be amended and closed without classification, since the evidence presented at the hearing did not establish that Petitioner has abused the resident. This Recommended was subsequently sustained by the Secretary who, in his Final Order dated July 7, 1994, so ordered. Thereafter, Respondent's counsel sought reimbursement for the attorney's fees and costs expended by Respondent under the provisions of Section 111.07, Florida Statutes. In response, the Hillsborough County Attorney concluded that Petitioner was not a permanent County employee but a relief employee, and, thereby, was not entitled to reimbursement. By Petition dated September 28, 1994, a copy of which was not forwarded to a representative of the Board of County Commissioners or any representative of Hillsborough County, Petitioner now seeks reimbursement in the amount of $1,500.00 for attorney's fees and such other relief as the "Court" may deem fit and proper. By Order to Show Cause dated November 28, 1994, the undersigned directed counsel for Petitioner to advise the undersigned in writing by December 10, 1994, of the jurisdictional basis for its claim against the Board of County Commissioners before the Division. No response has been forthcoming.
The Issue Whether the Respondent's foster home license should be revoked for the reasons stated in the Petitioner's letter dated September 19, 1997.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department of Children and Family Services is the state agency responsible for licensing and regulating family foster homes in Florida. Section 409.175, Florida Statutes (1997). Mary Mitchell's home was licensed as a family foster home from 1990 until her home was closed by the Department in September 1997. Neither Ms. Mitchell nor her home has been the subject of a complaint prior to that underlying the instant case. In August 1997, A. D. and his sisters, C. D. and L. B., were foster children residing in Ms. Mitchell's home. At the time, A. D. was five years old, C. D. was eight years old, and L. B. was ten years old. During a family therapy session at the Walden Community Center, the children reported to a counselor that they were beaten regularly by Ms. Mitchell. The counselor immediately called the Department's Abuse Hotline, and a Protective Investigator was dispatched to the home. The counselor at the Walden Community Center also notified the foster care counselor assigned by the Department to monitor the children that the children had reported that A. D. was beaten by Ms. Mitchell every time he wet his pants and that L. B. and C. D. said that they were also beaten by Ms. Mitchell. The Department's protective investigator took A. D., C. D., and L. B. for evaluation to the University of Miami Child Protection Team. Walter F. Lambert, M.D., a member of the Child Protection Team, was asked to perform a medical evaluation of the children to determine if they had suffered any physical punishment or injury. A case worker in Dr. Lambert's office interviewed the three children, and they all claimed that they were regularly beaten with belts and switches by Ms. Mitchell and her son. A physical examination of L. B. and C. D. revealed no marks on their bodies. A physical examination of A. D. revealed several red marks, bruises, and scabbed over abrasions on his buttocks, anterior upper thighs, and posterior thighs. These marks were consistent with having been inflicted within several days of the examination. As part of his physical examination of A. D., Dr. Lambert interviewed him about the origin of the marks. A. D. told Dr. Lambert that he was hit with a "twig from the holly tree," but he did not identify the person who hit him. The marks Dr. Lambert found on A. D.'s body were consistent with having been inflicted with a switch taken from a tree. The children were removed from Ms. Mitchell's home and placed in another foster home. The children soon complained that they were beaten in this new foster home, but no marks were found on their bodies to corroborate these allegations. The children are no longer in this foster home but have been placed in a new foster home for therapeutic reasons. Ms. Mitchell observed A. D.'s sisters whipping him with switches and a belt on more than one occasion. Each time she saw this behavior, she immediately stopped it. The Department has presented no credible evidence to establish that Ms. Mitchell punished A. D., or his sisters, by beating them with a belt, switch, or any other instrument or that she used any other form of corporal punishment to discipline these children. 3/ The Department's letter to Ms. Mitchell notified her that her foster care license renewal was denied. However, the counselor in the Department's Licensing Unit responsible for monitoring Ms. Mitchell's home testified that her license was revoked prior to its expiration and her foster home closed as a result of reports of child abuse. The counselor was present at the meeting in which the decision regarding Ms. Mitchell's license was made, and his testimony was uncontroverted.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services enter a final order dismissing the charges against Mary L. Mitchell and reinstating her family foster care license. DONE AND ENTERED this 5th day of June, 1998, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO 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 Filed with the Clerk of the Division of Administrative Hearings this 5th day of June, 1998.
The Issue The issue in this proceeding is whether the Department of Children and Family Services should revoke the foster care license of Gladys Kelly.
Findings Of Fact At all times material to this proceeding, Respondent's home was licensed as a foster home, having been issued license No. 0901-08-3 by the Department. Respondent was also employed at a child care facility named Tadpoles and Toads Daycare Center. Her primary duties at the daycare center were kitchen duties, although she spent a relatively small amount of time with some of the children. In 1998 and again in 2001, Respondent signed an Agreement to Provide Substitute Care for Dependent Children in conjunction with her licensure as a foster care provider. In said agreements, Respondent agreed to abide by the Department's discipline policy which she received during Model Approach to Partnerships and Parenting (MAPP) training. According to Janet McMahan, a foster care licensing supervisor for the Department, MAPP training is required of foster care providers and addresses the issue of corporal punishment. Specifically, the training informs the foster care providers that corporal punishment is prohibited in a foster home. Respondent also signed a document in 1993, 1999, and 2001 entitled, "Foster Care: Policy Statement on Discipline." The 1999 and 2001 versions of this document specifically cite Rule 65C-13.010(1)(b)5., Florida Administrative Code, and state in pertinent part: "Prohibited disciplinary practices include . . . hitting a child with an object; spanking a child " Brian Snow was employed by the Department as a family services counselor and protective investigator for approximately two years. He left employment with the Department in April 2002. On October 22, 2001, he received a report about possible medical neglect and other mental injuries regarding children at Tadpoles and Toads Daycare Center where Respondent was employed. He went to the daycare center and interviewed children and staff, including Respondent. The allegations regarding medical neglect did not involve Respondent. However, he investigated allegations regarding Respondent "popping" children on the hands. On October 24, 2001, Mr. Snow went to Respondent's home to investigate allegations that Respondent spanked a child with a belt and hit children on the hands with a plastic folding fan. According to Mr. Snow, two children at Ms. Kelly's home told him that Ms. Kelly hits or "pops" them on the hand when they did something wrong, and one child told him that Ms. Kelly spanked her with a belt. However, as none of the children testified at the hearing, these statements are hearsay. Mr. Snow then again went to Tadpoles and Toads Daycare and again interviewed Ms. Kelly. Shirley Tamul, a childcare licensure counselor for Petitioner, accompanied Mr. Snow to the daycare center for the interview. During that visit, Ms. Kelly admitted to "popping" the foster children on the hand with a plastic fan when the children act up in church or at a store. Mr. Snow and Ms. Tamul discussed the Department's policy prohibiting corporal punishment by foster care parents with Ms. Kelly during the October 24, 2001, visit to the daycare center. During her testimony at the hearing, Ms. Kelly again admitted to "popping" the children on the hand to "keep them in line" when they act up. She adamantly denied using a belt to spank any children in her care. There is insufficient evidence to prove that Ms. Kelly hit any child with a belt, notwithstanding the hearsay statement attributed to one of Ms. Kelly's foster children. However, Ms. Kelly admits to "popping" the children on their hands because of their behavior. The children's hearsay statements to Mr. Snow regarding Ms. Kelly's "popping" them on the hand supplement Ms. Kelly's admission to that conduct. Mr. Snow did not observe any physical injury on the children he interviewed at either the daycare center or Respondent's home.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Department of Children and Family Services enter a final order revoking the foster home license held by Respondent. DONE AND ENTERED this 31st day of May, 2002, in Tallahassee, Leon County, Florida. ______ BARBARA J. STAROS 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 31st day of May, 2002.
The Issue Whether the Board of Clinical Social Work, Marriage and Family Therapy, and Mental Health Counseling (Board) erred in issuing an order that denied reinstatement of Irene Acosta's (Ms. Acosta or Petitioner) mental health intern license.
Findings Of Fact The Board is the state agency that licenses mental health interns in the State of Florida. The Board initially licensed Ms. Acosta as a mental health intern on March 19, 1999, when it issued to her license number IMH 1515. This license was issued after Ms. Acosta completed and submitted to the Board an application for the license. Ms. Acosta received her higher education from Newport University in California. It is the Board's position that in 2002, Newport University, located in California, was not a regionally accredited university as defined by the Council on Higher Education and, consequently, degrees from that institution did not meet the Board's credentialing requirements for licensure as a mental health intern. Newport University, located in Virginia, was appropriately accredited, and degrees from that institution met the Board's credentialing requirements. Newport University in California is not affiliated with Newport University in Virginia. Ms. Acosta provided to the Board as part of her application package transcripts and correspondence from Newport University which clearly indicate that the university is in California, not Virginia. Ms. Acosta did not bribe, coerce, use undue influence, make fraudulent misrepresentations, commit any intentional wrongdoing, or unlawfully conceal any information in order to obtain her intern license. Intern licenses are issued for two-year periods. Ms. Acosta's license was last renewed on February 5, 2001. In 2002, the Board realized that Ms. Acosta had obtained her master's degree from Newport University in California. The Board, notwithstanding a diligent search and investigation, is unable to determine how Ms. Acosta's credentialing issue was brought to its attention. That determination could not be made because of the passage of time and the possible destruction of documents. In 2002, Ms. Foster was Executive Director for the Board. Ms. Foster concluded that Ms. Acosta's license had been issued in error because Ms. Acosta lacked required educational credentialing. By letter dated March 18, 2002, Ms. Foster advised Ms. Acosta as follows: As the Executive Director for the Board of Clinical Social Work, Marriage & Family Therapy, and Mental Health Counseling, I am writing concerning your intern registration license which was issued by the Board on March 19, 1999. At the time your application was approved, Newport University was not a regionally accredited university as defined by the Council on Higher Education. As such, the intern registration was issued in error. Section 491.009(1)(a), F.S. provides that: The following acts constitute grounds for denial of a license or disciplinary action as specified in s. 456.072(2): Attempting to obtain, obtaining, or renewing a license, registration, or certificate under this chapter by bribery or fraudulent misrepresentation or through an error of the board or the department. After consulting with Board counsel, I have been instructed to request that you voluntarily relinquish your intern registration licensed [sic] within 15 days of the receipt of this letter. Failure to do so will result in a complaint being filed with the Agency for Health Care Administration. Should you have any questions, please feel free to contact us at our office at . . . . Petitioner contacted Ms. Foster by telephone to discuss the March 18 letter. Petitioner told Ms. Foster that she was going to contact an attorney to advise her. John Schwartz, Petitioner's attorney, contacted Ms. Foster by letter dated April 1, 2002. Among other questions, Mr. Schwartz asked for documentation that Newport University was not regionally accredited. Edward A. Tellechea was, in 2002, an Assistant Attorney General who served as legal counsel for the Board. Mr. Tellechea responded to Mr. Schwartz's letter by letter dated April 16, 2002. Mr. Tellechea's letter identified his status as counsel for the Board and included the following: Chapter 491.005(4)(b)2., Florida Statutes, requires that the education programs for mental health counseling applicants be obtained from institutions that are properly accredited. The relevant statutory language reads as follows: 2. Education and training in mental health counseling must have been received in an institution of higher education which at the time the applicant graduated was fully accredited by a regional accrediting body recognized by the Commission on Recognition of Postsecondary Accreditation. . . . Based upon the publication titled: The Accredited Institutions of Postseconday Education, which is published in consultation with the Council for Higher Education Accreditation, Newport University in Newport Beach, California, is not an institution that is accredited by a regional accrediting body recognized by the Commission on Recognition of Postsecondary Accreditation. It does contain the name of a Newport University, with is located in the Commonwealth of Virginia, but Board staff has verified that the two institutions are not affiliated with each other. If you have any documentation that indicates that Newport University [in California] is accredited by a regional accrediting body recognized by the Commission on the Recognition of Postsecondary Accreditation, please forward it to the Board office by May 2, 2002. Otherwise, this matter will be referred to the Agency for Health Care Administration for appropriate legal action. Mr. Schwartz provided Ms. Acosta with a copy of Mr. Tellechea's letter. On May 7, 2002, Robin McKenzie, a program administrator for the Florida Department of Health, sent a memo to the Bureau of Consumer Protection within the Agency for Health Care Administration (Consumer Protection) that contained the following: Please initiate a complaint against Irene Acosta. An intern registration license was issued to her in error. A letter dated March 18, 2002, was sent to Ms. Acosta requesting that she voluntarily relinquish this license. As of this date, Ms. Acosta has not returned her license to the board office. Petitioner relinquished her license by handwritten letter addressed to Ms. Foster. The letter, dated May 1, 2002, bears Ms. Acosta's signature. The letter, received by Ms. Foster's office on May 7, 2002, provided as follows: As requested by your office, I hereby relinquish my intern registration license. Thank you for all your help. Please note I have destroyed the license. On May 21, 2002, Ms. McKenzie sent a memo to Consumer Protection that enclosed a copy of Ms. Acosta's letter dated May 1, 2002, and asked that the complaint against her be closed. Between the time she was issued the subject license and the time she relinquished the license, Ms. Acosta earned her livelihood working as a mental health counselor. Petitioner never engaged in any unlawful concealment or otherwise intentional wrongdoing in her application process. When she submitted her application, Ms. Acosta was unaware that Newport University (in California) was not accredited for purposes of her licensure application. Petitioner testified that when she relinquished her license, she was unaware that she could have had the Board's intended action reviewed by a probable cause committee or challenge the intended action in an administrative hearing. She further testified that had she known of these rights, she would have challenged the intended action. She further testified that she relinquished her license because she believed that she would be charged with a crime if she did not do so. That testimony has been considered in making the finding as to voluntariness that follows. Also considered is the fact that Ms. Acosta consulted an attorney before deciding to relinquish her license. While it is evident that Petitioner did not want to relinquish her license, and did so only after concluding she had no other choice than to proceed to an administrative hearing, the Board did not coerce her into that action. Ms. Foster's letter and Mr. Tellechea's letter identified the problem with Ms. Acosta's credentials and simply laid out her options - - either relinquish the license or the Board will file an administrative complaint to revoke the license.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Health, Board of Clinical Social Work, Marriage and Family Therapy, and Mental Health Counseling enter a Final Order adopting the findings of fact and conclusions of law set forth in this Recommended Order. It is further Recommended that the Final Order deny Irene Acosta's "Amended Emergency Motion to Reinstate Licensed Mental Health Counselor Intern License or for Alternative Relief." DONE AND ENTERED this 16th day of November, 2012, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of November, 2012. COPIES FURNISHED: Howard J. Hochman, Esquire Law Offices of Howard J. Hochman Suite 210 7695 Southwest 104th Street Miami, Florida 33156 Deborah B. Loucks, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399 Susan Foster, Executive Director Department of Health Board of (Certified Master Social Worker) Clinical Social Work, Marriage and Family Therapy, and Mental Health Counseling 4052 Bald Cypress Way, Bin C08 Tallahassee, Florida 32399-3258 Jennifer A. Tschetter, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
