The Issue The issue to be resolved in this proceeding concerns whether the Petitioners have been guilty of violation of pertinent statutes and rules governing qualification and capability to hold a foster home license and to operate a foster home, in this case a "therapeutic foster home" and, if so, whether their application for renewal of licensure should be denied.
Findings Of Fact The above-named Petitioners were licensed as operators of a therapeutic foster home and as therapeutic foster parents. Due to an alleged abuse report, they became involved in a revocation proceeding with the Department concerning their previously-held license. Upon advice by personnel with Camelot, Inc. (Camelot), a private provider which provides services to the Department for therapeutic foster care, by contract, they voluntarily relinquished their previous license on February 6, 2006, in the belief that they would still be entitled to a formal proceeding to contest that the alleged abuse occurred, and their licensure entitlement. The Department declined to afford them a hearing on the issue, and they appealed to the District Court of Appeal for the First District. The Department was upheld. They then applied for a renewal of their therapeutic foster care license on August 10, 2006, for Lake County, Florida. An evaluation of the application was launched by the Department and ultimately the Department issued a denial of the license application. A timely request for an administrative proceeding to contest denial of that license was filed by the Giegers. The license denial was based initially upon the Department's determination that the Giegers had allegedly inappropriately punished children in their home and that they had some sort of business interest or income interest in being licensed foster parents, purportedly a violation of foster parenting rules. Sometime thereafter a supplemental basis for denial was served upon them by the Department wherein the Department alleged that the Petitioners had also violated Section 409.175(4) and (12)(a), Florida Statutes (2006), because they had a child placed in their home through a guardianship agreement that had not been approved by a court and were therefore acting as an unlicensed foster home. A response to that supplemental denial notice was made by the Petitioners. Therapeutic foster parents are trained to provide for children with difficult behavioral problems. The Giegers received this training and remained in compliance with the training updates and continued education necessary in order to continue their licensure in good standing. In addition to this, Mrs. Geiger is a trained mental health specialist, with a master's degree, who works for Lifestreams, a mental health provider, providing services to disturbed children. The Giegers were previously affiliated, as therapeutic foster parents, with the private provider, Camelot, which provides services to the Department for therapeutic foster care. They were licensed as therapeutic foster parents at that time, and accepted a number of severely disturbed children into their home over the years while they were affiliated with Camelot. When a foster parent has a child placed in their home, Camelot has a therapeutic system whereby a therapist is assigned to that child and is available for consultation at any time of day. If the primary therapist is unavailable, the supervisor of that therapist is available for consultation. Camelot's therapeutic personnel and various mental health professionals have been frequently in the Giegers' home to consult, monitor, and assist with the care and therapy of foster children placed there. A number of those therapeutic personnel testified. They established that the Giegers are excellent parents who have provided exemplary care to the foster children placed in their home. These people have training in mental health and related fields. Some hold master's degrees and have been trained to recognize abuse or evidence of it. Some are psychologists, specifically assigned as the mental health professional working with particular children placed in the Giegers' home. In 2005, a child, J.D., was placed in the Giegers' home by the Department. In addition to J.D., there were other children in the home, including Tyler, a non-foster care child placed privately by Camelot with the Giegers, as well as the Giegers' own adopted son. All of the children in the home had been abused prior to their placement with the Giegers. J.D.'s previous situation before coming to the Giegers' home was particularly egregious. He had been starved, locked in a closet, had his fingernails removed by his parents and otherwise was the victim of severe parental abuse before coming into foster care. His was a case of high public notoriety and appears to have been thus treated with a heightened level of attention by the Department, as compared to the case of other children. When J.D. arrived at the Giegers' home after his initial rescue from his earlier situation, he purportedly weighed 58 pounds and was only 4 feet 8 inches tall, at the age of 17 years. During the time he resided with the Giegers, he grew several inches and gained almost 80 pounds due to the care given him by the Giegers. He was placed on special vitamins and formula, in addition to his regular meals, in order to restore him to appropriate physical condition. Because of his physical condition, extra efforts were made by the Petitioners to assure his safety. They even placed him in a private school because they felt he would be at risk attending a large public high school, which he would otherwise have been required to attend. J.D. did well at the Giegers' home initially and it was planned for him to remain in their home after he reached 18 years of age, if he continued to adjust favorably to being a member of their family. He began "acting out" more severely, however, with problematic behaviors. Ultimately it was determined by both the Giegers and Camelot that he should not remain in their home after he turned 18 because of the adverse impact he was having on other children residing in the home. Before the determination was made that J.D. would not remain in the Giegers' home after he reached 18 years of age, the Department had praised the Petitioners' care of J.D. After that decision was made, an attorney for the Department suggested to Mrs. Gieger that she be hired by the Department to provide special services to J.D. Apparently there was a funding problem with regard to continuing J.D. in private school, and this was suggested as a means of funding the private school. Mrs. Gieger, however, did not feel this funding was appropriate because she was already being paid by Camelot for these services, and expressed this to the attorney, she therefore declined that offer. In December 2005 the Department decided to have J.D. re-evaluated by his original evaluator, a psychologist, Dr. Dykel. During his meeting with Dr. Dykel, J.D. apparently told Dr. Dykel that the Giegers had cursed in his presence and in the presence of other children, used racially derogatory language concerning Black children in the foster childrens' presence and that Mrs. Gieger had sat on him as a means of restraint or punishment. He also stated that he was being deprived of food. This meeting occurred on a Friday afternoon. After the meeting J.D. returned to the Giegers' home and made statements about what he had said to Dr. Dykel. Initially the Petitioners thought nothing about the statements, but on the following Tuesday an abuse report was called in indicating that the Giegers had inappropriately punished J.D. in the manner he had related to Dr. Dykel. The child Tyler, who had been placed in the Giegers' home was a child who suffered from severe mental health issues. He had been placed privately with Camelot by his father. He had set his father's and step-mother's bed on fire the previous Christmas because he did not receive a toy, a "PS2," that he asked to be given him for Christmas. There was testimony that he was told by J.D. that if he would make a statement against the Giegers to the Department that he would get the PS2 toy that he wanted. He was taken by Erica Summerfield, an investigator assigned by the Department to the case concerning the abuse report, to the "Child Advocacy Center," for a statement. He apparently made such a statement, of the above import, but then recanted it. Nonetheless, based only on the statement made by J.D. and by Tyler, Erica Summerfield made a determination that the abuse report should be determined to be "founded." As a result of her report (and apparently a past history of abuse reports concerning the Giegers' foster care facility, none of which had been proven to be "founded"), Camelot apparently suggested to the Giegers that they voluntarily relinquish their license, purportedly telling them that they would still have the ability to challenge the abuse report through a Chapter 120 hearing. They sought to obtain a Chapter 120 hearing and the Department denied their request. An appeal ensued and the denial by the Department was affirmed by the District Court of Appeal. During the pendency of that appeal, the Giegers filed an application to renew their license, which was denied. This proceeding ensued after that denial, when the Giegers requested a formal proceeding. The Department offered the testimony of Erica Summerfield who was a child protective investigator assigned to the investigation. She was the supervisor of the person who interviewed J.D. and Tyler, apparently the only sources of investigative information leading to her finding that abuse had occurred. Ms. Summerfield testified that her concerns about the Giegers led her to make a report finding that abuse had occurred because alarms had been placed on the bedroom doors of childrens' bedrooms in the Giegers home; that the Giegers had used excessive restraint against J.D. (allegedly held him on the floor and lay on him or sat on him); and that J.D. had been mentally injured by the Giegers and not provided with sufficient food. She also opined that Mrs. Gieger had made inappropriate statements to J.D. None of these purported findings are supported by credible evidence. Initially it is found that J.D.'s and Tyler statements to the interviewer, who then apparently related them to Ms. Summerfield, constitute, at best, "second-hand" hearsay. Neither the interviewer nor J.D., nor Tyler testified at the hearing, and Tyler later recanted his statements made to the interviewer. The Respondent's exhibits two, three, and four, the interview reports, were offered into evidence and were only admitted regarding a basis for the Department's course of conduct in the matter, but not for the truth of any facts depicted on the face of those exhibits. Concerning the alleged complaint, related to the interviewer, regarding lack of food, the credible persuasive evidence shows that J.D. actually grew several inches after being placed with the Giegers, even though doctors had opined that he would not grow much, if at all, because of the starvation that had occurred early in his life. He also gained substantial weight while being cared for by the Giegers, so that he essentially looked like a normal child by the time he left their care. He had been emaciated when he came to the Giegers' care and had been described as looking like a "concentration camp victim." He was described as being far smaller than a child of his age when he came to the Giegers' care, but seven months later appeared to be essentially a normal child in physical appearance. The evidence, in fact, clearly supports the determination that the Giegers did provide J.D. with appropriate nutrition during their care of him. The basis for the alleged abuse regarding his not being properly fed is simply not credible. The Giegers had also been accused by J.D. or Tyler, or both, with using inappropriate language, racial slurs and cursing in J.D.'s presence, purportedly causing him mental harm. However, mental health experts present in the Giegers' home on a weekly and almost daily basis had never heard any inappropriate language, including any inappropriate racial language or inappropriate cursing in the childrens' presence during their visits to the Giegers' home. Many of these visits were unannounced. Two of the counselors or mental health professionals often present in the home were African-American. They found no evidence of racial tension or racially derogatory language being used by the Giegers or in the Giegers' home. It was their belief that the Giegers did not exhibit any behavior which suggested racism. Further, there were no Black children placed in the Giegers' home during the time that J.D. was there. There is simply no credible evidence to support any finding that inappropriate language was used by Mr. or Mrs. Gieger in J.D.'s or other childrens' presence, of a racially derogatory nature or otherwise. Part of the basis for the abuse finding (and the reason for license denial) was excess restraint or "sitting on" J.D. as punishment. This position was based on the statements of the two children, J.D. and Tyler. One of them, Tyler, tearfully recanted his story shortly after he made the statement. Erica Summerfield testifying for the Department, admitted in her testimony that she was aware of his recantation. She also admitted that Tyler's parents had asked her more than once to allow him to be placed back in the Giegers' home. They also had disclosed to her that he had a habit of making inappropriate statements and lying. There is evidence that J.D. had told him that he would receive a toy he wanted very much if he would make a statement to the Department that J.D. had been abused by the Giegers. Most importantly, J.D. had identified the point in time when Ms. Gieger was supposed to have sat on him as during an occasion when he broke a window at the house. Other mental health providers who were in the home around that time reported never seeing any bruise marks or other evidence of injury to J.D. or at any other time. They also reported that Mrs. Gieger was especially careful of his safety because of the seriously debilitated condition of his body. Most importantly, however, during the time that the window was broken by J.D. and he was severely acting out, Mrs. Gieger was on the phone with a professional from Camelot who was helping her to calm or "de-escalate" J.D. and who remained on the phone with Mrs. Gieger during the entire incident. That expert heard nothing which indicated that Mrs. Gieger had sat on the child or in anyway inappropriately restrained him. Mrs. Gieger denied using physical restraints on the foster children at the hearing. The Department maintains, however, that in two prior reports discussed in Camelot's letter, report 1999-127436 and 2002-007021, the Giegers had admitted restraining foster children. In the 1999 incident the child purportedly sustained rug burns on the face while being restrained on the floor by Mr. Gieger. These reports are at best second-hand hearsay. Moreover, they are not reasons of which the Petitioners were provided notice, as part of the basis for the denial of their licensure application which triggered this proceeding. Moreover, both of those incidents were immediately reported by the Giegers themselves to the Department and, ironically, the Department did not see fit to make any determination at the time, or since, that those incidents amounted to abuse. No finding was made that those alleged incidents were "founded" abuse episodes. Moreover, the Department relies upon an incident where Mrs. Gieger purportedly stated that she used force against J.D. when he tried to grab her neck. She purportedly told Ms. Summerfield in an interview that she gave J.D. a "therapeutic bear hug" by grabbing his arm and turning him around. He fell to the floor as a result. Parenthetically, not even the Department claims that she forced him to the floor. Mrs. Gieger's testimony at hearing concerning this event was to the effect that she grabbed J.D.'s wrist in order to prevent him from striking her or grabbing her neck and that he just collapsed to the floor. The Department then maintains that foster parents are not permitted to use such "force" on foster children, such as grabbing J.D.'s wrist, because it equates this to the use of corporal punishment and that grabbing a child's arm or wrist could "traumatize" an already vulnerable foster child. Mrs. Gieger's testimony, however, indicates that the use of "therapeutic bear hug," even if it occurred, is part of an approved method of training which she had, which is designed to safely manage children who are acting out in a potentially dangerous way, until they can calm down. She testified that Camelot, the Department's contracting agent, had approved this training for her. Moreover, when a foster parent is in danger of attack by a 17-year-old, even a somewhat debilitated child, who threatened striking or grabbing the foster parent by neck or throat, to grab his arm or wrist to prevent such conduct is reasonable and does not constitute unreasonable restraint. Assuming this event occurred, to characterize the grabbing of a child's wrist, to prevent injury or potential injury to a foster parent or another, as excessive force or "corporal punishment" is nonsensical. There is no credible, persuasive evidence that either Mr. or Mrs. Gieger engaged in any excessive force or restraint amounting to abuse. A concern was raised by Dr. Dykle, the psychologist, who was fearful of the fact that alarms had been placed on childrens' rooms in the foster home. Ms. Summerfield based her finding that abuse had occurred, in part, on the report that the alarms had been placed on the doors of some of the childrens' rooms. Ms. Summerfield, however, admitted in her testimony that alarms are often and routinely placed on childrens' rooms in therapeutic foster care homes. The mental health experts who testified clearly established that in every therapeutic foster home such alarms must be placed on bedroom doors because of a safety concern for other children. Children who are placed in this type of home are often serious safety risks for themselves or for other children. They have often been found themselves to be perpetrators of inappropriate or violent conduct. Many times they are children who have been sexually abused and have themselves become sexual perpetrators. In fact, there was a child in the Giegers' home at the time J.D. was there who had set his parents' bed on fire because he did not get a desired toy for Christmas. Dr. Dykle's apparent grave concern about alarms being placed on the childrens' bedroom doors is surprising since it appears to be completely contrary to generally accepted, safe practice for therapeutic foster homes, something that he should have been aware of if he is indeed an expert in child abuse issues. Ms. Summerfield admitted that she was aware that this was a virtually universal safety practice in therapeutic foster homes and yet, paradoxically, used it as a factor in support of her finding that abuse had occurred, as a basis of denial of re-licensure. Ms. Summerfield also admitted that she had spoken with Camelot professionals who assured her that the Giegers had been exemplary foster care parents. She acknowledged that J.D. had made untrue statements in the past about other foster placements. She admitted that the only evidence of improper restraint, or any kind of abuse or neglect in the home, was essentially predicated on the statements of the two children who did not testify in this proceeding. She conceded that one of them had recanted and she knew of this well before the hearing. Mental health experts from Camelot who testified, established that it is a very frequent event for foster children placed in therapeutic foster homes to act out and to make false statements and accusations concerning their care-givers. They also indicated that J.D. had made such false allegations in the past against other caregivers. This was all information that a thorough investigation would have made known to the Department, at the time it was making the determination that there was a basis for a finding of abuse. The only witness other than Ms. Summerfield, presented by the Department, was Amy Hammett, the licensing official who actually signed the letter denying the license application. She testified that she did not review all of the documents that made up the Giegers' license application. Some other department employee had been assigned to the case and it had been later transferred to Ms. Hammett before the final decision was made. She had reviewed five relevant forms, but nothing else. She had no evidence to support the Department's position that the Giegers had relied upon the foster care services they provided for income to support their own family, other than the fact that they had taken a legal position in the appeal from the previous attempt at a Chapter 120 proceeding, to the effect that they had something in the nature of a property interest in their foster care license. This may have been a necessary position to take in an attempt to establish jurisdiction or standing in that proceeding, but other than that, and one statement attributable to Mr. Gieger that there was an adverse financial effect on the Giegers related to that proceeding, it was not established that the Giegers were relying on the income from foster care services to support their family. Rather, in the context of that statement and the Giegers legal position during the course of their appeal, the reference was most likely made in the context that the hiring of an attorney, with related expense, in prosecuting the first case, including an appellate proceeding, caused an adverse financial effect, which is understandable. That does not constitute credible, persuasive evidence that the Giegers were relying upon foster care services as income to support their own family and themselves in violation of any Department rule. Mrs. Gieger, indeed, testified under oath that they did not rely upon foster care income to support their family. Her testimony and that of others showing that they have successfully operated a well- managed, licensed home for a substantial period of time, shows that the Petitioners are financially capable of operating safely and successfully under a new license. There is no persuasive evidence to the contrary. The greater weight of the credible evidence is persuasive in establishing that the Giegers provide quality therapeutic foster care and have not engaged in the abuse with which they are charged. Even J.D. expressed the desire to come back and live with the Giegers and, after he reached 18 years of age, he did so. This certainly does not support the existence of abuse. Moreover, Earnest Thomas, J.D.'s guardian ad litem established that the Giegers provided J.D. with excellent care. He was a frequent visitor in their home and paid close attention to J.D.'s well-being during times pertinent to this case. Further, the caseworker, Sheila Donato, was the person who took J.D. from the Giegers' home when he was removed by the Department. On this occasion she stated that he was tearful and crying when he left the Giegers' home and asked if he would be able to come back to their home for Christmas. There were no bruises or other evidence that he had been harmed in any way. She established that the fact that he returned to the Giegers home after he turned 18 years of age is evidence that he had never been abused while there. After the Giegers' foster care license had been relinquished voluntarily by them under the above-referenced circumstances, Tyler's parents executed "guardianship papers" placing Tyler in the custody or guardianship of the Giegers and they continue to allow Tyler to reside in their home. The Department maintains that this was an illegal placement because the Giegers were not a licensed foster care facility at that time and had not secured a court order allowing Tyler to be in their guardianship. The circumstances were, however, that Ms. Giegers' mother was the attorney who prepared the guardianship papers for the Giegers and for Tyler's parents to execute. She rendered an opinion to them that that was sufficient to justify allowing Tyler to remain in the Giegers' home. Ms. Gieger testified that she knew of other teachers and other individuals who had used similar documents to establish a basis to take custody of a child in their home. She believed that what she was doing was legal. There was no intent by her, or Mr. Gieger, to engage in any kind illegal custody, guardianship or circumvention of the foster care licensure requirements, or any other illegal act. There is no evidence that Tyler had been adjudicated dependent and subject to the custody of the Department.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Department of Children and Family Services granting a foster home license to the Petitioners, authorizing their operation as a therapeutic foster home. DONE AND ENTERED this 9th day of August, 2007, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 Clerk of the Division of Administrative Hearings this 9th day of August, 2007. COPIES FURNISHED: Jerri A. Blair, Esquire Lockett & Blair Post Office Box 130 Tavares, Florida 32778 Ralph J. McMurphy, Esquire Department of Children and Family Services 1601 West Gulf Atlantic Highway Wildwood, Florida 34785 Gregory Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John J. Copelan, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Robert A. Butterworth, Secretary Department of Children and Family Services Building 1, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether Petitioner’s application for licensure as a family foster home should be granted.
Findings Of Fact Sometime around 2004, Petitioner held a license as a foster home in Florida. During the licensure period, Petitioner fostered X. B. and T. T. in her home where she resided with her three biological children. X. B. stayed in Petitioner's home for approximately three weeks to a month. Throughout X. B.'s stay, Petitioner failed to provide breakfast to X. B. prior to school. Petitioner's failure necessitated the case manager providing such breakfast to X. B. when she drove X. B. to school. Additionally, on several occasions the case manager saw evidence of roach infestation in the home. In particular, upon X. B.'s return to Petitioner's home from visiting X. B.'s siblings, the case manager found him in a roach-infested environment, with no running water in the home since the service had been turned off by the service provider for non-payment of the bill. The toilet bowl was filled with feces and urine and had feces on the lid. It was unsanitary and unusable. X. B. asked the case manager to take him to the local gas station so that X. B. could use the bathroom. Soon after, X. B. was removed from Petitioner's care due to unsanitary conditions and/or unsafe conditions in Petitioner's home. T. T. was a one-year-old child who was also placed in Petitioner's foster home during her earlier licensure period. Again, the case manager saw evidence of roach infestation in Petitioner's home. At first, the case manager only saw a couple of roaches in the home. However, the roach problem progressively grew to the point that during one of the case manager's visits the wall behind the baby's crib looked like it was moving because there were so many roaches on it. Soon after, the case manager removed T. T. to another foster home. When they arrived at the new home, a roach crawled out of T. T.'s diaper bag. Upon inspection of the bag, the case manager discovered many dead roaches in the bag. More importantly, half of a dead roach was discovered in the baby bottle of milk that T. T. was drinking while being moved to T. T.'s new foster home. Clearly, the condition of Petitioner's foster home was neither sanitary nor safe. Petitioner's care of both these children resulted in verified abuse reports in Florida's abuse registry for conditions hazardous to the health of children. Petitioner's initial foster home license either lapsed or was not renewed. Since 2004, Petitioner has not been financially stable. In fact, she often asked her neighbors for money to pay her utility bills or buy gas for her car. Additionally, Petitioner lost different homes to foreclosure in 2006 and 2007. Since 2009, she and her children have moved to a different home an average of once a year. To her credit, Petitioner attended college and obtained her doctorate in Theology and Philosophy. However, her history has not demonstrated either household stability or financial ability in her life. In 2011, Petitioner applied for licensure as a family foster home. She successfully completed the Model Approach to Partnership in Parenting (MAPP) training program on September 20, 2011. In June 2012, Trauma Therapist for Children’s Homes Society, Katie Klutz, began the required home study of Petitioner. During the home study, Petitioner and her three biological children were living in a three bedroom home. Petitioner moved her bedroom furniture into the living room in order to make room for potential foster children. The bedroom space was separated from the living room by "curtains" that afforded no significant privacy for those living in the home. Clearly, Petitioner's home did not provide sufficient space to foster an additional child in the home. Petitioner has since moved to a larger home that was not the subject of the home study for this license. However, given Petitioner's past household instability, the very limited evidence regarding this new home does not support a finding that Petitioner's current home offers sufficient space to provide for the privacy and well-being of a foster child. More importantly, Petitioner has not worked since having an accident on the job in May 2010. A neighbor also provided a written reference in which she praised Petitioner’s spirit but stated that it is “a real struggle” for Petitioner to maintain her home and that “she will definitely need additional support in this area.” Notably, it was unclear how Petitioner was currently supporting her household. She has no employment. Petitioner claimed that she received money from a church or charitable organization that she founded. However, there was no evidence that such limited income, if any, was sufficient to support her family and/or provide financially stable conditions to Petitioner and her family. Moreover, Petitioner's bank records reflect that in June 2012, she made deposits of $167.53 and debited the account $266.07. Her ending balance in June was $18.81. At hearing, other than child support and food stamps, Petitioner offered no evidence of additional finances or income that is attributable to her. Given these facts, Petitioner has failed to demonstrate home safety, household stability or financial ability sufficient to entitle her to be licensed as a foster home. Therefore, Petitioner's application for such licensure should be denied.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner's application for licensure as a foster home should be denied. DONE AND ENTERED this 28th day of March, 2013, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER 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 28th day of March, 2013. COPIES FURNISHED: Paul A. Rowell, Esquire Department of Children and Families 2383 Phillips Road Tallahassee, Florida 32308 Shakinah Glory 4768 Woodville Highway Apartment 428 Tallahassee, Florida 32305 M. Burnette Coats, Esquire Department of Children and Families 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399 Gregory Venz, Agency Clerk Department of Children and Families Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Marion Drew Parker, General Counsel Department of Children and Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 David Wilkins, Secretary Department of Children and Families Building 1, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Did Respondent violate Section 409.175(8)(b)1, Florida Statutes, or Rule 65C-13.011(d) and (f)1, Florida Administrative Code, and, if so, should Respondent's license as a foster home be revoked?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At times pertinent to this proceeding, Respondent was licensed as a foster home, having been issued such license on October 23, 1997. The Department is the agency of the state charged with the responsibility and duty to carry out and enforce the provisions of Chapter 409, Florida Statutes. Respondent received the Department's Model Approach to Partnership Parenting (MAPP) training to become a foster parent between September 1995 and December 1995. The Department provides MAPP training to teach persons how to become foster parents. The MAPP training that Respondent received included instructions concerning appropriate sleeping arrangements, namely that an adult should not sleep in the same bed with a foster child. Respondent agreed that the MAPP training was very useful and that he gained insight from that training on how to be a foster parent. Respondent received his foster care license on October 23, 1997, and the Department placed its first foster child with Respondent in January 1998. Foster child D.D., born October 23, 1985, was placed with Respondent by the Department January 20, 1998, and stayed with Respondent until March 12, 1998, when he was removed by the Department. Foster child E.T., born December 12, 1984, was placed with Respondent on January 12, 1998, and stayed with Respondent until January 21, 1998, when he was removed by the Department. E.T. was again placed by the Department with Respondent on January 23, 1998, and stayed with Respondent until March 12, 1998, when he was removed by the Department. Foster child R.M., born October 10, 1984, was placed with Respondent by the Department on March 2, 1998, and stayed with Respondent until March 9, 1998, when he was removed by the Department due to an alleged incident between R.M. and E.T. which occurred on March 9, 1998. The incident resulted in the Department's conducting an investigation concerning an alleged abuse on the foster child, E.T. by the foster child, R.M.. It appears from the record that the allegations were unfounded. In any event, R.M. was removed from Respondent's foster home on March 9, 1998, because his record indicated that in an earlier incident R.M. had sexually victimized another child (not E.T.). Also, because E.T. had been sexually victimized by another child (not R.M.) previous to being placed in Respondent's care the Department decided to remove E.T. from Respondent's home. It should be noted that the Department was aware of these prior incidents concerning R.M. and E.T. and the sleeping arrangements at Respondent's foster home at the time these foster children were placed with Respondent by the Department. Foster children, B.B. and C.L., dates of birth not in evidence, were placed with the Respondent by the Department on February 24, 1998, and stayed with Respondent until February 25, 1998, when they were removed by the Department. During the investigation concerning the alleged abuse incident involving R.M. and E.T. and at the hearing, Respondent admitted to sleeping in the same bed as E.T. and D.D. Respondent testified that on at least five occasions E.T. had slept in the same bed as Respondent. The facts surrounding this sleeping arrangement was that E.T. was suffering from an upper respiratory problem and would go to sleep on Respondent's bed before Respondent, who stayed up late reading, was ready for bed. As a result Respondent would sleep with E.T. to keep from waking him. There was no allegation, and certainly no evidence, that Respondent sexually or otherwise molested E.T. at any time. Respondent also admitted to sleeping in the same bed as D.D. on one occasion. Again, there was no allegation, and certainly no evidence, that Respondent sexually or otherwise molested D.D. At the time the Respondent applied for and was granted a foster home license and during the intervening time, the Department's personnel who worked with Respondent were well aware of the lack of sleeping spaces in Respondent's home. In fact, one of the Department's employees upon being advised of Respondent's sleeping arrangements commented that "it was better than sleeping on the floor at HRS." Upon being advised of the restriction on adults sleeping with foster children, the Respondent did not at first fully understand the risk of harm to the children. However, after being reminded of his MAPP training and the risk of harm to children in such a sleeping arrangement, Respondent realized his mistake in allowing such sleeping arrangements. Under Respondent's tutelage, E.T. and D.D. thrived academically and have continued to thrive since they left Respondent's home. The Department had some concern that Respondent's son was living in the home and that it had not been made aware of that circumstance. However, the Department knew, when Respondent's license was issued, that his son was living in the home.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law and the mitigating circumstances, it is recommended that the Department enter a final order suspending Respondent's foster home license for a period of one year, staying the suspension and imposing such reasonable conditions as the Department deems necessary to further educate Respondent as to his responsibilities as a foster parent. DONE AND ENTERED this 26th of July, 1999, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of July, 1999. COPIES FURNISHED: Jack E. Farley, Esquire Department of Children and Family Services 4720 Old Highway 37 Lakeland, Florida 33813-2030 Thomas D. Wilson, Esquire Law Office of Gregory Ruster 1525 South Florida Avenue Suite 3 Lakeland, Florida 33803 Gregory D. Venz. Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John S. Slye, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether Petitioner's application for renewal of her family foster home license should be denied on the grounds set forth in the June 20, 1995, letter from the Department of Health and Rehabilitative Services (HRS), Respondent's predecessor, to Petitioner.
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made: Respondent is (as was its predecessor, HRS) a state government licensing and regulatory agency. From September of 1989 to June 30, 1995, Petitioner was licensed by HRS (on a yearly basis) to operate a family foster home at her residence in Palm Beach County. In May of 1994, as part of the licensure renewal process, Petitioner signed an "Agreement to Provide Substitute Care for Dependent Children" (Agreement). In so doing, she agreed that she would, as a licensed foster parent, among other things, "comply with all requirements for a licensed substitute care home as prescribed by the department," "immediately report any injuries or illness of a child in [her] care," and "abide by the department's discipline policy." The previous day (May 23, 1994), Petitioner had received and signed a copy of HRS's "discipline policy," which provided as follows: FOSTER PARENT(S): You are aware that for some time, Health and Rehabilitative Services has discouraged the use of Physical punishment, including spanking, for children in foster care. Now, however, we have an Administrative Rule statewide which prohibits foster parents from using corporal punishment on foster children. This section of administrative Rule 10M- 6, which deals with discipline is reproduced in the following paragraph. "Licensing and relicensing procedure developed by the Department shall include the presentation of written foster care disciplinary policies to applicants and licensed foster parents to ensure that appropriate nonabusive disciplinary practices are used in dealing with foster children's behavior. Discipline is a training process through which the child develops the self- control, self-reliance and orderly conduct necessary for them to assume responsibilities, make daily living decisions and live according to accepted levels of social behaviors. The purpose of discipline is education and rational. It focuses on deterring unacceptable behavior by encouraging the child to develop internal controls. Foster parents are expected to define rules which establish limits and types of acceptable behavior. These rules must be clearly explained to each child and applied equally to all children. Prohibited disciplinary practices include group punishments for misbehavior of individuals; withholding of meals, mail or family visits; hitting a child with an object; spanking a child; physical, sexual, emotional and verbal abuse; humiliating or degrading punishment which subjects the child to ridicule; being placed in a locked room; and delegation of authority for punishment to other children or persons not known to the child. The use of isolation shall be used only for short periods of time as a therapeutic measure when a child's behavior is temporarily out of control. Such periods of isolation shall be observed and supervised by the foster parent to ensure the safety of the child." If you have problems with this new rule, please discuss this with your licensing counselors who will be able to help you work out alternative disciplinary techniques for each child, according to his/her needs. My signature acknowledges that I have read this statement, that I understand the content and agree to abide by it. A. G. is a 12 year-old foster child who currently resides in Boys Town in Tallahassee. Before entering the foster care system, he had been the victim of abuse. In 1994, A. G. lived in Petitioner's family foster home along with three other male foster children, J. W., M. M., and B. P., all of whom were teenagers with troubled pasts and juvenile records. On or about December 15, 1994, the day before A. G. was scheduled to leave Petitioner's home for another foster home, the other boys angrily reported to Petitioner that A. G. had misappropriated a gift certificate that belonged to M. M. and a watch that belonged to B. P. M. M. was particularly upset and angry about what A. G. had done. Upon receiving this report, Petitioner instructed the boys to "take care of" the matter. The boys then went to A. G.'s room and proceeded to hit A. G. with their hands and a belt. A. G. sustained a number of bruises on his buttocks and the back of his legs as a result of the attack. A. G. yelled and screamed as he was being hit. Petitioner was in her bedroom, which was adjacent to the room where the beating took place. At no time during the attack did she leave her bedroom to tell the boys to stop beating A. G., nor did she take any other action to stop the beating. Petitioner exercised extremely poor judgment in instructing the older boys to "take care of" the matter. She should have realized that the carte blanche she gave J. W., M. M., and B. P., who were upset and angry with A. G., placed A. G.'s physical safety at risk. She compounded her error by not carefully monitoring the older boys subsequent activities to make sure that they resolved the matter appropriately without harming A. G. The following morning, A. G. left Petitioner's home for another foster home, that of Janet Kerimoglu and her husband. A. G. arrived at the Kerimoglu home with very few belongings. Moreover, his physical appearance concerned Ms. Kerimoglu. A. G. appeared to be very thin. Furthermore, he had head lice and fresh bruises on his body. When asked about the bruises, A. G. explained that he had been beaten up by some teenagers the day before at Petitioner's home. A report that A. G. had been the victim of abuse while at Petitioner's home was made to HRS's abuse registry. The report was investigated by HRS's protective services investigative unit. On January 10, 1995, following the completion of the investigation, FPSS Report No. 94-117809 issued. The report classified as "proposed confirmed" the allegation that Respondent was guilty of neglect in connection with the beating that A. G. received at her home on or about December 15, 1994. According to the report, the beating occurred "because of [Petitioner's] lack of supervision and [her] failure to protect [A. G.]," a finding which is supported by the preponderance of the record evidence in the instant case. A request to expunge or amend the report was denied on June 6, 1995. By letter dated June 20, 1995, Petitioner was advised that her foster family home license would not renewed because of the finding of neglect made in FPSS Report No. 94-117809.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order denying Petitioner's application for renewal of her family foster home license. DONE AND ENTERED this 4th day of September, 1998, 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 Filed with the Clerk of the Division of Administrative Hearings this 4th day of September, 1998.
The Issue Whether the Petitioner is entitled to an award of attorney's fees and costs pursuant to Section 57.111, Florida Statutes.
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 is the state agency responsible for licensing and regulating foster homes. Mrs. Sampson operated a Childrens' Medical Services ("CMS") medical foster home for children with special medical, emotional and physical needs, and was licensed by the Department as either a CMS medical foster home or as a regular foster home from 1990 until November 1997. At some point in 1996 or 1997, Mrs. Sampson voluntarily ceased operating as a CMS medical foster home, but continued to operate as a regular foster home. There was conflicting evidence as to the precise date of this change, but the date is not relevant to this phase of the bifurcated proceeding. On March 2, 1998, the Department filed an Administrative Complaint that sought to revoke Mrs. Sampson's foster care license. On October 6, 1999, the Department filed an Amended Administrative Complaint. The Department also denied Mrs. Sampson's application to adopt one of the foster children in her care. Mrs. Sampson requested a formal administrative hearing on both the revocation of her foster care license and the denial of her adoption application. The cases were consolidated, and a formal administrative hearing was held over several dates in April, May, and June 2000. Mrs. Sampson prevailed on all issues in the consolidated cases. A Recommended Order in her favor was entered on August 11, 2000. A Final Order adopting the findings of fact and conclusions of law in the Recommended Order was entered on October 2, 2000. Mrs. Sampson contends that she is a "small business party" as defined in Subsection 57.111(3)(d)1.a, Florida Statutes, which provides that the term "small business party" includes: A sole proprietor of an unincorporated business, including a professional practice, whose principal office is in this state, who is domiciled in this state, and whose business or professional practice has, at the time that action is initiated by a state agency, not more than 25 full-time employees or a net worth of not more than $2 million, including both personal and business investments. . . . At all times relevant to this case, Mrs. Sampson was domiciled in the State of Florida. At all times relevant to this case, Mrs. Sampson was licensed as a Licensed Practical Nurse ("LPN"). The determinative issue is whether Mrs. Sampson's operation of a foster home establishes her as the sole proprietor of an unincorporated business or professional practice. Mrs. Sampson initially operated her medical foster home for the benefit of one child, who was admitted to Tampa General Hospital while Mrs. Sampson worked there as a contract nurse. The child was born prematurely and was not expected to live longer than six weeks. Mrs. Sampson became a licensed foster parent to take this child home and care for him. Under her care, the child thrived. Though he survived the initial crisis, the child continued to require full-time nursing care. Mrs. Sampson was not able to return to full-time employment as a contract nurse outside the home. Mrs. Sampson testified that she advised the Department's case workers that she would need to take in additional medical foster children to supplement her income while she worked at home caring for the children. Over a period of eight years, the Department placed at least 14 medically needy foster children in Mrs. Sampson's home. The Department establishes foster home care board rates, which are standard reimbursements to foster parents for the expenses incurred for the foster children, such as food, clothing, medical care, and transportation. The board rates are minimums that can be increased by the Department if the needs of the foster child cannot otherwise be met. Mrs. Sampson received an enhanced board rate for at least some of the children in her care. The Department conducts orientation meetings for and training of prospective foster parents. The Department emphasizes that the purpose of foster parenting is to provide temporary surrogate parenting for the foster children. The prospective parents are informed that they are considered volunteers and will not be paid for their services. The parents are told that the board payments are for the childrens' expenses. Foster parents sign an agreement acknowledging that the board payments are "on behalf of the child." Rule 65C-13.011(4), Florida Administrative Code, expressly provides that substitute care parents must have sufficient income to assure the stability and security of their own families without reliance on the board payments, and that the substitute family must have sufficient income to absorb four to six weeks of a foster child's care before receiving a board payment. If the Department removes a child from a foster home, the board payment to the foster payment ceases. If the child is placed with a new foster parent, then the board payment goes to the new foster parent. In addition to the regular and enhanced board payments, a CMS medical foster parent may receive payments from Medicaid as reimbursement for medically necessary services rendered to the foster children. Mrs. Sampson was a designated Medicaid provider from April 1992 through March 1997. Mrs. Sampson contended that these Medicaid payments were for the nursing services she provided to the children, just as physicians receive Medicaid payments for treatment of eligible patients. However, medical foster parents are not required to be licensed medical professionals. Mrs. Sampson offered no evidence that the Medicaid payments were for her services as an LPN, or that private, residential LPN services even qualify for Medicaid reimbursement absent prior authorization. CMS-administered medical foster care services are authorized for Medicaid reimbursement, and the best evidence is that Mrs. Sampson was reimbursed as a medical foster care provider, not as an LPN. The Department established that Mrs. Sampson did not hold herself out as running a business, nor did she report as income on her federal tax return the payments received in connection with providing foster care. Mrs. Sampson testified that she hired part-time employees to assist her in caring for the children, but she did not withhold federal income tax or Social Security taxes from their pay and did not file W-2 wage statements for them. Mrs. Sampson explained her failure to report her board payments as income by reference to 26 U.S.C. s. 131, which excludes foster care payments from reportable gross income. This citation justifies her failure to report, but also supports the Department's contention that foster care payments should not be considered business income. Mrs. Sampson implicitly conceded that her foster home did not possess any of the common indicia of a business. Her chief contention was that from 1970 to 1990, she worked as an LPN through nursing agencies, caring for sick children in hospitals or in their homes, and that from 1990 to 1997, she worked as an LPN caring for medical foster children in her own home. In other words, Mrs. Sampson contended that by operating the foster home, she was continuing to practice her profession in a different setting. She gave up the income from her practice as an LPN through nursing agencies in favor of the income she received as an LPN acting as a medical foster parent.
The Issue Are the Respondents entitled to renew their license to operate a family foster home?
Findings Of Fact Respondents held Family Foster Home License No. 059520, effective from May 18, 1995 through May 18, 1996. The license was not renewed based upon allegations in this case. At times relevant, Respondents provided foster care to F.J., who was thirteen when the hearing was conducted, to V.K. who was eight when the hearing was conducted, and to F.J. and V.K.'s two younger brothers. The children lived with the Respondents for approximately six and one-half years. Although F.J. is thirteen years old, she is a developmentally disabled child with an I.Q. in the range of 46 to 58. Her mental and developmental age is less than eleven years. On May 30, 1995 an investigation was begun concerning alleged sexual abuse of F.J. by James Comer. This led to the removal of the children from Respondents' home. On May 30, 1995 F.J. described James Comer's sexual misconduct to Brenda Mims, a human services counsellor for Petitioner. At that time F.J. told Mims that James Comer had touched her breast and felt on her. When F.J. described the contact which James Comer had with her, F.J. put her hands on her breast to demonstrate. She did not describe the point in time when this happened. On that date Mims interviewed Mary Comer concerning the allegations by F.J.. Mary Comer confirmed that F.J. had told Mary Comer that James Comer was "bothering her" and F.J. wanted it to stop. Mary Comer indicated that she thought that F.J. was referring to a "tickling incident". Mary Comer told Mims that she had confronted James Comer about the tickling and asked him to stop tickling F.J.. When Mary Comer spoke to Mims, she referred to F.J. coming to her and saying that "Dada" was bothering F.J.. The term "Dada" is the name the children used to refer to James Comer. The children referred to Mary Comer as "Granny". On June 7, 1995 Mims talked to F.J. again. At that time F.J. was concerned that James Comer not be able to find her in her new home. Assurances were given that James Comer could not find her. On this occasion F.J. told Mims that James Comer "would feel on her" and she didn't like it. In this conversation F.J. described fondling James Comer's penis. F.J. stated that James Comer would hit her with his fist sometimes if F.J. wouldn't cooperate with his advances. F.J. described a big roll of money that James Comer would give her if F.J. would cooperate with him. Otherwise James Comer would not give F.J. money. According to Mims, F.J. said that James Comer would give her money if F.J. would "be with him". In the June 7, 1995 discussion F.J. and V.K. told Mims that Mary Comer tried to prohibit James Comer from bothering F.J. and James Comer began to beat Mary Comer. Following such incident, the police were called, but James Comer was not removed from the home. In the June 7, 1995 conversation V.K. told Mims that on one occasion V.K. peeked out the door and saw F.J. lying on James Comer while he was seated in the reclining chair. Deborah Gipple is a licensed mental health counselor who has experience in counseling child victims of sexual abuse or other trauma. Gipple began counseling F.J. in November, 1995 and continued the counseling to the date of hearing. Gipple observed in F.J. conduct which is consistent with a child who has been sexually abused. This included F.J. exposing herself, rubbing against other children, problems in the classroom and at home concerning the need to follow directions, and a distrust evidenced by sneaking about doing things that were not necessary to avoid detection, such as sneaking about and removing food. F.J. told Gipple that James Comer touched between F.J.'s legs and touched her breast. F.J. further stated that James Comer had her lay on top of him. F.J. told Gipple that sometimes James Comer would come in the night and take F.J. from her bed. In these conversations Gipple observed that F.J. was aware that James Comer's actions were wrong. In these discussions F.J. stated a concern about her sister V.K. and the possibility that James Comer would harm V.K.. V.K. was competent to testify when she testified at hearing. On one occasion when V.K. was in the hallway with her brothers at night she looked in the T.V. room and saw F.J. on top of James Comer while he was seated in a reclining chair. V.K. described that F.J. was moving her body and doing "nasty stuff". On another occasion V.K. was outside the house and observed F.J. and James Comer in the T.V. room. As V.K. describes it, F.J. was playing with James Comer while he was sitting down. F.J. was on James Comer's lap. V.K. did not give exact details concerning what F.J. and James Comer were doing. Concerning these two instances, V.K. recalls that Mary Comer was not home on the first occasion. V.K. has no recollection concerning Mary Comer's whereabouts on the second occasion. V.K. had been subjected to corporal punishment by James Comer when living in his home. She also observed James Comer administer corporal punishment to her two brothers. In the June 3, 1996 video that was made to record F.J.'s remarks concerning James Comer, together with statements she made to others, F.J. demonstrates sufficient appreciation of the meaning of the duty and responsibility to tell the truth to warrant a finding that she was competent for that purpose. In the video she describes that James Comer made her touch his "private parts". She did not describe the period of time over which the sexual contacts were made between James Comer and F.J. She did recount how these events had occurred on a number of occasions. On one occasion her clothes were off when James Comer touched her. In the video tape F.J. describes that James Comer had touched her breast and genital area by pointing to those areas on her body. F.J. identified that the occasions when she was inappropriately touched occurred when Mary Comer was not at home. In the video F.J. refers to the fact that she told Mary Comer about being touched by James Comer, but that Mary Comer did not believe her. By October 1995 F.J., V.K. and their brothers had been placed in the foster home of Roberta Graham where they presently reside. While living with Graham, F.J. told Graham that "Dada", referring to James Comer, was touching F.J. in wrong places, that he touched her on her breasts, and that he took her hand and massaged his "private part", referring to his penis. F.J. told Graham that this happened when Mary Comer went out to get drinks. F.J. told Graham that the other children were outside playing and the door was locked and James Comer and F.J. were inside when events occurred. F.J. mentioned to Graham that an incident happened at night when everyone was in bed and "Dada" called F.J. out alone and then the other children, her brothers and V.K. came out of the room. This is the night time incident V.K. testified about. This incident at night occurred when Mary Comer was not at home. F.J. told Graham that on one occasion James Comer removed F.J.'s clothes when she came out of the bathroom after blocking the door to prohibit F.J.'s exit. F.J. expressed concern to Graham that "Dada" was going to turn from doing things to F.J. to doing things to V.K.. F.J. told Graham that she had reported James Comer's actions to Mary Comer in saying that she told "Granny". F.J. stated to Graham that when F. J. told Mary Comer, she, (Mary Comer) said, "If you tell anyone, you will have to leave". F.J. made the remarks about James Comer's inappropriate conduct approximately thirty times to Graham and was consistent about the facts reported. The remarks by F.J. on the video tape and to Mims, Gipple and Graham which have been recited concerning James Comer are credited as true. Following the accusations about James Comer's sexual misconduct directed to F.J., Petitioner through its employees, Esther Tibbs and Judy Parks, met the Respondents on February 5, 1996 to advise Respondents that Petitioner intended to revoke the foster care license. The grounds for seeking revocation were related to the sexual misconduct by James Comer and the use of corporal punishment in disciplining the foster children. In the past, commencing 1988, Petitioner had received complaints concerning the use of corporal punishment by Respondents in disciplining their foster care children. Petitioner through its employees had counseled Respondents about the inappropriateness of corporal punishment. In one instance correspondence was sent to the Respondents on this subject reminding the Respondents that it was inappropriate to use corporal punishment even to the extent of an "occasional slap on the backside. . .under any circumstances". This reminder was sent through correspondence dated March 25, 1993. In 1988, unrelated to the foster children who have been referred to in these facts, Pamela Davis, Guardian Ad Litem for A.L. spoke to James Comer concerning his administration of corporal punishment to that child. James Comer told Davis that he had beaten the child "to beat the devil out of her" and it hadn't worked. He further stated that Davis could take the child from his home. Davis did remove the child from foster care provided by Respondents. On February 12, 1996 Respondents requested a formal administrative hearing to contest the grounds for revoking their foster home license.
Recommendation Based on the facts found and the conclusions of law reached, it is, RECOMMENDED: that a Final Order be entered which denies the renewal of the Family Foster Home License for Respondents. DONE and ENTERED this 5th day of July, 1996, in Tallahassee, Florida. CHARLES C. ADAMS, 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 5th day of July, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 96-0943 The following discussion is given concerning proposed facts by the Petitioner: Paragraphs 1-5 are subordinate to facts found. Paragraph 6 is not necessary to the resolution of the dispute. Paragraphs 7 & 8 are subordinate to facts found with the exception that the fourth sentence is not supported by competent evidence in the record, nor are paragraphs 9 and 10. Paragraph 11 is subordinate to facts found. Paragraph 12 in the first sentence is subordinate to facts found. The last sentence to paragraph 12 and paragraph 13 are not necessary to the resolution of the dispute. Paragraph 14 is discussed in the evidentiary ruling under Section 90.803(23), Florida Statutes. Paragraph 15 is subordinate to facts found with exception that the next to last sentence in the reference that on the second occasion "Granny" had gone somewhere is not supported by competent evidence in the record. Paragraphs 16-18 are subordinate to facts found. Paragraph 19 is not supported by competent evidence in the record. Paragraphs 20 and 21 are subordinate to facts found with the exception that the reference to "they" in paragraph 21 should be "she". The first and the third sentence to paragraph 22 are not supported by the record. The second sentence is subordinate to facts found. Paragraph 23 is not supported by the record. Paragraphs 24 and 25 with the exception of the last phrase to paragraph 25 are subordinate to facts found. The last phrase to paragraph 25 is not supported by the record. Paragraph 26 is subordinate to facts found with the exception of the reference to October 10, 1988, which is not supported by competent evidence in the record. Paragraphs 27-29 are not necessary to the resolution of the dispute. Paragraph 30 is subordinate to facts found with the exception of the reference to November 26, 1995 which is not supported by evidence in the record. Paragraph 31 is not necessary to the resolution of the dispute. The second paragraph 29 is subordinate to facts found. COPIES FURNISHED: Lucy Goddard, Esquire Department of Health and Rehabilitative Services 1000 Northeast 16th Avenue, Box 3 Gainesville, Florida 32601 James and Mary Comer, pro se Post Office Box 722 Micanopy, Florida 32667 Gregory D. Venz, Agency Clerk Department of Health and Rehabilitative Services Building 2, Suite 204X 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard Doran General Counsel Department of Health and Rehabilitative Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether Petitioner Antoinette Scanziani's license as a family foster home should be renewed.
Findings Of Fact Based on the testimony and evidence received at the hearing, the following findings are made: Respondent is the state agency responsible for licensing and regulating family foster homes. Children's Home Society (CHS) is the contract agency in the Central Licensing Zone that directly supervises licenses in that area. Petitioner filed an application to renew her family foster home license on May 26, 2006, which was originally issued for one year in August 2005. Prior to the issuance of her family foster care license on August 19, 2005, Petitioner had completed, inter allia, 30 hours of Models Approach Partnership and Parenting (MAPP) training and signed a Foster Parent Agreement, prepared by CHS, which spells out the duties and obligations of a foster parent. Paragraph 12 of the Agreement specifically states that a foster parent will notify CHS immediately of any change of address. Under Respondent's rules, a family foster care license is not transferable, and a new sanitation inspection and recommendation must be completed before Respondent can issue a new license for the new address. The family foster care license was issued to Petitioner for 5831 Bent Pine Drive, Apartment 300, Orlando, Florida 32822. The first foster child was placed in Petitioner's care on September 1, 2005. In August 2005, Petitioner began a dispute with the rental management company who managed the apartment complex where she lived. This resulted in Petitioner giving the company 60 days' notice that she would not renew her lease after October 31, 2005. The rental company, mean while, would not accept her tender of rental payments for August and September 2005, and initiated eviction proceedings in County Court. Prior to the final hearing, a stipulation was signed by the parties and approved by the County Court. Petitioner moved out of her apartment on October 31, 2005. On November 1, 2005, Petitioner, along with one foster child, moved into a house located at 7741 Fort Sumter Drive, Orlando, Florida 32822. CHS was not notified of this change of address until November 11, 2005. The CHS Dependency Specialist worked diligently with Petitioner to obtain a license for her new residence. DCF issued a new family foster care license for 7741 Fort Sumter Drive, Orlando, Florida 32822 on December 20, 2005. Petitioner maintained an unlicensed foster home from the period of November 1, 2005, through December 20, 2005. Although the foster child residing with Petitioner was not removed from the home, Petitioner was reminded of the need to notify CHS prior to any moves in the future. On April 6, 2006, Petitioner notified CHS that she had moved from her Fort Sumter Drive, Orlando, residence to a residence in Poinciana, Florida (Osceola County) at the end of March 2006. It was subsequently determined that a Writ of Possession for the Orlando residence was issued by the Orange County Court on March 2, 2006. Petitioner testified at the hearing that she moved at the end of March 2006, because of poor maintenance and discriminatory and retaliatory conduct by the landlord. The foster child was not removed from the home and the CHS Dependency Specialist again worked diligently and patiently with Petitioner to obtain a license for her family foster care residence at 127 Conch Drive, Kissimmee, Florida 34759 (Poinciana). Due primarily to Petitioner's lack of cooperation, a completed health inspection of the home was not completed until August 4, 2006. During this time, Petitioner submitted her application for relicensure on May 26, 2006. On July 13, 2006, the CHS Dependency Specialist hand delivered a letter, dated July 11, 2006, to Petitioner reminding her that a face-to-face visit and a walk through of the home was required before recommendation could be given. Petitioner was given a check-list of 16 items which were due to be completed prior to July 16, 2006, or CHS could not recommend renewal of her foster care license. On July 18, 2006, CHS sent Petitioner a follow-up letter. Although another home inspection had taken place on July 17, 2006, it was not a satisfactory home health inspection. In addition, proof of completion of 12 hours of training had not been demonstrated and six other items on the check-list were, also, not completed. The deadline for compliance was extended to August 3, 2006, with a reminder that the existing license expired on August 19, 2006. CHS followed with reminder telephone calls on July 19 and 20, followed by another letter on July 25, 2006, that all remaining items must be completed by August 3, 2006. Petitioner demonstrated compliance with four of the items, but did not provide Radon Test results or proof that her 2A10BC fire extinguisher was tagged and inspected. On August 18, 2006, the foster child, living in Petitioner's home, was removed. On August 19, 2006, Petitioner's family foster care license expired by operation of law, without Petitioner having submitted a completed application package to CHS. On August 28, 2006, Respondent sent Petitioner a notice of intent to deny her application for relicensure. The reasons for the denial were outlined on the four-page letter. Petitioner objected to the notice and requested a formal hearing, and this proceeding followed. From the evidence, it is apparent that CHS worked diligently in helping Petitioner transfer her existing license two times, when Petitioner moved without notifying CHS before the move; and encouraged and worked with Petitioner to complete the application for renewal a month before the expiration of her license. However, due to Petitioner's procrastination and/or resistance, the completed documentation was not sent in to Respondent prior to the expiration of her prior license.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that: Petitioner, Antoinette Scanziani's, application for a renewal of her family foster home license be denied. DONE AND ENTERED this 11th day of May, 2007, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE 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 11th day of May, 2007.
The Issue The issue in this proceeding is whether the Department of Children and Family Services should revoke the foster care license of Joey and Donna Tolbert.
Findings Of Fact At all times material to this proceeding, the home of Joey and Donna Tolbert was licensed by the Department as a foster home. They were initially licensed provisionally in December of 1998 for one year. They received a regular license in 1999 and retained a regular license until December 1, 2000, when they were issued license number 1200-008-2, a child specific license with a capacity of two children. The Relicensure Process Prior to issuing the child specific license, two Department employees of the Department, Mary Martin, a relicensing counselor for foster homes, and Ann Brock, a family services counselor, conducted a relicensing visit to the Tolbert's home on October 12, 2000. Donna Tolbert was present but Joey Tolbert was out of town. During the home visit, a Bilateral Service Agreement (Agreement) was signed by Mrs. Tolbert and Ms. Martin. The Agreement was signed and dated by Mr. Tolbert and again by Ms. Martin on October 17, 2000. The relicensing visit resulted in a Foster Home Relicensing Summary written by Mary Martin. The Summary recommended that the Tolberts be issued a regular license effective December 1, 2000 through December 1, 2001, for the capacity of two children. The Summary was signed by Mary Martin on October 26, 2000, and read in pertinent part as follows: The Tolbert family is an invaluable asset to this Department. They have made themselves available on a regular basis for the placement of children when needed. Both Mr. and Mrs. Tolbert are experienced in childcare and they have three (3) children with special needs whom they adopted prior. They should not be asked to take numerous children with severe behavioral problems or teenagers. It appears Mr. and Mrs. Tolbert have satisfied the Florida Administrative Code, Chapter 65C-15, requirements. It is respectfully recommended that the Tolbert family be issued a REGULAR license, effective December 1, 2000, through December 1, 2001, for the a capacity of two (2) children, ages birth (0) through twelve (12) years of either gender. Children with severe behavioral problems and teenagers are not to be placed in the Tolbert home. However, Ms. Martin later wrote an addendum to the licensing summary. According to Ms. Martin, she was asked by her supervisor, Jill Green, to write the addendum. The addendum is undated but references the October 12, 2000, home relicensing visit that resulted in her original recommendation. There is also an entry dated October 16, 2000, which is a date prior in time to her signature to the original relicensure summary, and an entry dated November 17, 2000. The addendum relates to matters concerning the Tolberts and their adopted son, Mi.1/ Richard Messerly has worked for the Department for approximately 22 years and works in protective investigations in Pensacola. From June 1999 through September 2001, he was the program operations administrator for the central licensing unit of the Department. In that position, he had authority over foster care licensure. He supervised Mary Martin and her supervisor, Jill Green. Mr. Messerly signed Ms. Martin's relicensure summary on December 4, 2000, and initialed both pages of her addendum. He also created a written history of the Tolbert foster home which concluded with a recommendation that the Tolberts' foster home license be revoked: SUMMARY/RECOMMENDATIONS The Tolbert family has a positive licensing history of capably caring for many of our foster children. However, a serious change has occurred in the family's willingness to work with our staff, including rebuffing our attempts to offer them assistance with the disruption of an adoptive placement. The Tolberts have attempted to convince others that they had been requesting assistance for M for a very long period of time and that this is flatly not borne out in licensing records. The matter was never brought to our attention until the visit in October 2000, at which time the matter was promptly referred to the adoptions unit, who responded promptly. Since that time the family has not cooperated with any attempts to assist them in that matter, and they seem to be insensitive to M's plight, and are completely focused on regaining their prior licensed status, as if nothing had happened. Contacts with Pat Franklin, Kathi Guy, Sally Townsend and others reflect the absence of any prompt attempts to get help dealing with M's behaviors, yet many requests were made regarding foster children in their care with similar problems during the same time frame. It appears the family was more focused on attending the needs of foster children to the exclusion of sensitivity to their own (adopted) child's cries for help. Even when the needs were identified, the family was unwilling to become involved in attempts to remedy the problems and appeared to have given up on the child. I am very uncomfortable with the inappropriate position this family has taken in regard to our family safety staff, as well as licensing staff, and do not see how we can hope to interact positively with them given their recent radical behaviors and threats. I feel that they have violated the Bilateral Service Agreement and have failed to "Treat all members of the foster care team with respect and courtesy." I recommend that we revoke the license using the violation of the agreement in conjunction with their other oppositional behaviors, omissions, and misrepresentations reflected in family safety foster care and adoptions records. On December 1, 2000, Mr. Messerly signed a letter on behalf of Charles Bates addressed to the Tolberts which read: Dear Mr. And Mrs. Tolbert: Your home has been relicensed for the continuance placement of D and M.R. only. No other placements or overcapacity requests will be authorized at this time. A regular license is issued for twelve months pending the outcome of matters presently before the Circuit Court. If you have questions or wish to discuss this further, please contact Jill Greene, Foster Care Licensing Supervisor at (850)- 595-8451. On June 4, 2001, Mrs. Tolbert met with Charles Bates, District Administrator for District 1 of the Department. This meeting was at Mrs. Tolbert's request regarding her foster care licensure status. During that meeting, Mrs. Tolbert complained to Mr. Bates about certain adoption case workers. On August 24, 2001, Charles Bates sent a letter to the Tolberts notifying them of the revocation of their license. The letter reads in pertinent part as follows: RE: Revocation of Foster Home License. Dear Mr. and Mrs. Tolbert: This letter is to inform you that the Department of Children and Families has made a decision to revoke your foster home license. The basis for this decision is your failure to comply with Florida Administrative Code 65C-13 and the Bilateral Service Agreement (form CF-FSP 5226) which you executed. Florida Administrative Code 65C-13.009(1)(e)5. states: Work in a partnership. Develop partnerships with children and youth, birth families, the department, and the community to develop and carry out plans for permanency. Florida Administrative Code 65C-13.010(1)(c)1. states: Substitute care parents are expected to work cooperatively with the counselor as a member of a treatment team in seeking counseling, participating in consultation, and preparing and implementing the performance agreement or permanent placement plan for each child. Florida Administrative Code 65C-13.010(4)(i) states: The substitute care parents must be able to accept supervision by department staff and participate in and support case plans for children in their homes. Specifically, substitute care parents must be included in the development of performance agreements or permanent placement plans, and in the carrying out of these plans. As part of your foster care licensing, you executed a bilateral Service Agreement. The Bilateral Service Agreement that you signed enumerated the Administrative Code responsibilities and detailed responsibilities of foster parents. The paragraphs violated are listed below in pertinent part: h. To notify the department immediately of a potential change in a family composition, significant health changes or any other condition that may affect the child's well- being. Obtain authorization from the department prior to spending money for which repayment is expected. To accept the direction and supervision given by department to assist in caring for the foster child. To work cooperatively with the department to attend scheduled meetings to discuss the child and his family and to meet the needs of the child. To treat all members of the foster care team (i.e., the department, child's family, and GALS) with respect and courtesy. As stated in the service agreement, non-compliance with any of the above provisions can result in termination of the service agreement and may also result in the department revoking the home's license. You have failed to comply with the above code citations and service agreement provisions in that you have accused departmental staff of failing to disclose complete information to you and of misrepresenting statements that you have made. You have not worked cooperatively with the department employees who offered to assist you and your child; and have not worked in partnership with the department. Specifically, you have previously stated you were obtaining therapy for a child, didn't agree with the therapist's recommendation, and were obtaining a psychiatric evaluation and assessment for the child, when in fact you did not do any of those things. A review of the department records reflected concerns you mentioned to the department in October 2000, regarding your child's disruptive behavior. However you would accept no assistance even though the department offered extensive assistance. You surrendered your adopted child later that same month. Further, you have stated to a department employee that Ms. Peggy Custred and Ms. Sally Townsend should not work for the department, have accused them of wrongdoing, and have stated that you "will have their jobs." You have failed to treat members of the department with respect and courtesy. Given the above problems, I find that it would not be in the children's best interests to continue licensing your foster home and am permanently revoking your license. The Tolberts as foster parents The overwhelming evidence shows that the Tolberts were excellent foster parents. Jane Crittenden, licensing supervisor for the Department, who was a foster care supervisor at the times material to this proceeding, acknowledged that the Tolberts received the award of Foster Parents of the Year in May of 2000 for the year 1999. She also acknowledged that as far as she knew, the Tolberts excelled as far as their work as foster parents; the foster children in their care did quite well; the Tolberts always seemed to provide a loving, nurturing home to foster children placed there; the Tolberts were called on by the Department to take extra children beyond their cap, which they agreed to do; and the Tolberts cooperated with her and her case workers during the period of time she worked with them. Arlene Johnson, a former guardian ad litem for a foster child in the Tolberts' home from December 1998 until July 1999, visited the Tolbert home about twice a week during that time. She has been in a lot of foster homes and described the Tolberts' home as "the best one I've been in." Gerald Reese, a family service counselor for the Department, worked with the Tolberts over a period of 6 to 7 months in 1999 and 2000 while he was a case worker. During that time, Mr. Reese did not have problems dealing with the Tolberts, did not observe any instance in which the children were not adequately provided for, and observed that the foster children in the Tolberts' home were happy. Richard Messerly acknowledged that the Tolberts were exemplary foster parents as far as the care they provided to the foster children in their care. Mr. Messerly also acknowledged that the only staff the Tolberts had problems with were particular members of the adoption staff, not the Department's foster care staff. The wallpaper expense Carlita Bennett was employed by the Department from 1986 until March of 2002. When she was working for the Department in the capacity of a foster parent recruiter in May of 2001, she sent an e-mail message to Mary Martin regarding the Tolberts which contained the following: 11/04/99 A restitution claim form was submitted by Mrs. T for damage to wallpaper caused by 2 yr. Old. The bill total was $1,151.04 to replace wallpaper in living room, dining room, kitchen and hall. PS Counselors were not made aware of the damage until repairs were made. According to Ms. Bennett, it is regular procedure for someone from the department to go out to a foster home and look at damage before repairs are made. The Bilateral Services Agreement requires the foster parents to obtain authorization from the Department prior to spending money for which repayment is expected. According to Ms. Bennett, this policy was not followed in this instance. Ms. Bennett did not explain why she sent the e-mail message on May 30, 2001, to Mary Martin referencing an incident that took place two and one-half years earlier. According to Mrs. Tolbert, a former two-year-old foster child in her care ripped the wallpaper in the dining room and the living room. Her dining room, kitchen, and hallway are all one color. According to Mrs. Tolbert, she gave an estimate of the repair work to Shiela Campbell, an employee of the Department. Richard Messerly acknowledged that this matter of the expense for wallpaper would not in and of itself have resulted in the Department revoking the Tolberts' foster care license. At most, the Department would have only talked to the Tolberts had there not been other issues about which the Department was concerned. Notification to Department of change of condition The August 24, 2001, revocation letter from Mr. Bates alleged that the Tolberts failed to notify the Department of a potential change in conditions in the home that might affect the well-being of foster care children in the home. This allegation relates to behavior problems of the Tolberts' adopted son, Mi. The Tolberts adopted Mi. in September of 1998. They signed surrenders of Mi. in November of 2000. The Tolberts' surrender of Mi. was central to the Department's decision to revoke the Tolbert's foster care license.2/ Mi. began having serious behavior problems in 1999. Mrs. Tolbert recalls telling Gerald Reese, the foster care worker assigned to the Tolberts at that time, about problems with Mi. Mr. Reese acknowledged that Mrs. Tolbert mentioned to him problems she was having with Mi. to which he responded that she should bring it to the attention of the adoption case worker. The Tolberts' adoption case worker was Sally Townsend. Mrs. Townsend recalls that Mrs. Tolbert stopped by her office three times when Mrs. Tolbert was in the Ft. Walton Beach Service Center to see other department employees. Mrs. Townsend acknowledged that Mrs. Tolbert told her of behavior problems with Mi. the first time she stopped by Mrs. Townsend's office. The second time Mrs. Townsend recalls that Mrs. Tolbert told her Mi.'s behavior problems were better. The third time, however, Mrs. Tolbert informed Mrs. Townsend that Mi.'s behavior was much worse. Mrs. Tolbert remembers these encounters with Mrs. Townsend differently. According to Mrs. Tolbert, she met with Mrs. Townsend approximately 10 times during which she spoke to her about Mi.'s behavior problems. According to Mrs. Townsend's case notes, Mrs. Tolbert told her on October 24, 2000, that Mi. was urinating all over the house, had gotten a butcher knife out of a drawer in the kitchen, and shoved a puppy's head under a piece of furniture. Evidence was presented at hearing regarding whether or when the Tolberts received notice that Mi. had significant problems before he was adopted by the Tolberts. However, what is important for purposes of this proceeding is when was the Department notified of Mi.'s problems. The Department knew of Mi.'s previous problems prior in time to the Tolberts adopting Mi. and were told as early as 1999 that the Tolberts were experiencing behavior problems with Mi. Kathi Guy is an adoption program specialist for the department. She met with the Tolberts immediately after Mrs. Tolbert met with Mr. Bates on June 4, 2001. On June 21, 2001, she wrote a memorandum to Charles Bates concerning the issues relating to the Tolberts. Regarding the issue of the Tolberts' responsibility of notifying the Department of Mi.'s behavior in relation to the foster children in the home, Ms. Guy wrote, "It is unclear what responsibility the Tolberts had to inform Central Licensing of M's behaviors that may have had injurious effects on foster children in their care." Working in partnership The June 24, 2001, revocation letter alleges that the Tolberts failed to work in partnership with the Department and did not obtain certain services for Mi. although they were offered. It is important to remember that the provisions to which Mr. Bates' revocation letter references are part of the Bilateral Services Agreement that pertained to the Tolberts' role as foster parents. However, Mi. was their adopted son, he was not a foster child at that time. Further, there is ample evidence in the record that the Tolberts sought and received services for Mi. over time, although they were in disagreement with the Department regarding certain services during the time immediately preceding the surrender of Mi. Marianne Vance is a first grade teacher. Mi. was in her class for two years. According to Ms. Vance, Mi. received testing in school for learning disabilities and for "everything possible." When Mi.'s behavior problems became worse during his second year in Ms. Vance's class, Mrs. Tolbert sought assistance from the school. The school counselor worked with Mi. and Mrs. Tolbert. According to Ms. Vance, the Tolberts did everything possible in seeking help or assistance.
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 rescinding its revocation of the Tolberts' foster care license. DONE AND ENTERED this 31st day of July, 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 July, 2002.
Findings Of Fact In August, 1980, the home of Jacob and Donna Vermeulen was licensed by Petitioner as a pre-school foster home. Under that licensure, the Vermeulens were able to care for children from birth to four years of age. The subject of this proceeding, hereinafter referred to as S.L., was born on May 26, 1976. When S.L. was four years old he and his younger sister were removed from the custody of his natural mother (after he witnessed the homicide by bludgeoning of his father by his mother) because S.L. and his sister had been physically abused by both natural parents. Petitioner placed S.L. and his sister into the Vermeu1en foster home. After S.L. and his sister had been living with the Vermeulens for approximately six months, Petitioner removed them from the Vermeulen home and returned them to the custody of their natural mother. After approximately six months, the two children were again removed from their natural mother since she again physically abused them. Petitioner requested the Vermeulens to again take custody of S.L. and his sister. The Vermeulens were reluctant to do so since both S.L, and his sister were now older than was allowed under the Vermeulens' license, and because S.L. had problems relating with the other foster children living in that home during his first stay there. However, Petitioner's social workers begged the Vermeulens to take the children back since Petitioner was unable to find any other placement for S.L. The Vermeulens agreed to make their home available to S.L. and his sister, and the two children thereafter lived in the Vermeulen home for approximately two and one-half years prior to April 16, 1984. S.L. is a difficult child to care for; he is very emotional, developmentally immature, fearful, and fidgety. He has difficulty sleeping or listening, has a very low self-esteem, and is unable to complete tasks since he becomes emotionally frustrated. Not only is S.L. a clumsy child (most probably due to medication), he also throws himself onto the floor and onto his toys, both as part of his aggressive play behavior and also in conjunction with throwing temper tantrums. S.L. initiates fights in school, on the school bus and at home with the other children in the Vermeulen home to such an extent that fighting somewhere would have been almost a daily occurrence. His excessive demands for attention were often accompanied by negative behavior, such as hitting other children and throwing temper tantrums. On December 21, 1983, S.L. was evaluated by psychiatrist Josephine Perez. Perez diagnosed S.L. as suffering from Attention Deficit Disorder with Hyperactivity. Perez determined that the high dosages of anti-psychoic medication that S.L. had been taking were inappropriate, and she prescribed different medication for him. Perez recalls that during S.L.'s initial evaluation in December she noticed that his legs and arms were filled with bruises. S.L. began treating weekly with Perez from January 16, 1984, until April 16, 1984. On each visit at least one of the Vermeulens was present, and each visit contained a seasion between Perez and the foster parent discussing the child's progress and training the foster parent in the use of behavioral modification techniques. During those several months S.L. appeared at Perez's office on one occasion with a black eye and on another occasion with a bruising above his eye. One injury resulted from a fall in the bath tub, and another resulted from a fall out of bed; both falls were probably attributable to changes Perez made in S.L.'s medication. The Vermeulens discussed both incidents with Perez since they were concerned that S.L,'s medication was still not in the proper dosage. The Vermeulens testified that sometimes when S.L.'s medication was changed, he was unable to control even his arms and was unable to sit still long enough to eat. In January, 1984, when S.L. began treating with Dr. Perez there were six children living in the Vermeulen home: four foster children, one adopted child, and one natural child. The Vermeulens and Dr. Perez discussed the number of children living in the Vermeulen home, which prohibited giving S.L. the excessive amount of time required by him to satisfy his need for attention. Perez told the Vermeulens that in her professional opinion S.L. should be in a home with no more than one other child. In turn, the Vermeulens told Perez that they had been requesting Petitioner to remove S.L. from their home out of their concern (1) for S.L. since he needed so much more attention than was available to him and (2) for the other children not only because S.L. would kick and hit them but also because the Vermeulens had discovered S.L. in his sister's bedroom standing over her with a knife in his hand on two occasions. Although Perez agreed that S.L. should be placed a different foster setting, she did nothing to assist in obtaining a different placement and did not discuss with any employee of the Petitioner ("HRS") her recommendation and the Vermeulens' desire that S.L. be placed in a setting, preferably, where he was the only child. The Vermeulens, however, continued to request of HRS employees, including the visiting social workers and medical personnel, that S.L. be removed from their home, with visitation rights being given to the Vermeulens if possible. During this time period the Vermeulens determined that they wished to adopt Michelle, a foster child in their care. On Friday, April 13, 1984, an HRS employee went to the Vermeulen home to discuss that petition for adoption and to advise the Vermeulens that HRS would not allow them to adopt Michelle. Mr. and Mrs. Vermeulen S.L., and the rest of the children living in the home were present during that discussion. The Vermeulens were advised that they would not be permitted to adopt Michelle so long as S.L. was living in their home since he is a "therapeutic foster child" and Petitioner's rules would prohibit the adoption while a "therapeutic child" was in the home. Mrs. Vermeulen was unable to understand Petitioner's position: its refusal to remove S.L. from her home after repeated requests and its refusal to allow her to adopt Michelle for the reason that S.L. was in her home. Mrs. Vermeulen became upset, and S.L. told her and Petitioner's employee to put him in a foster home indicating he would rather be sent away than prevent Michelle from being adopted by the Vermeulens. Since the HRS employee was having a difficult time discussing HRS's position, she left the Vermeulen home. On Friday, April 13, 1984, or on Monday, April 16, 1984, S.L. became involved in a fight on the school bus on the way home from school. The bus driver told Mrs. Vermeulen about the fight. On Monday April 16, 1984, Mrs. Vermeulen took S.L. to his weekly therapy session with Dr. Perez. During that session, S.L. indicated to Perez that he had been bad and had been "paddled" on the legs. He would give her no details, but Perez believed it was Donna Vermeulen who paddled S.L. Rather than discuss it with Mrs. Vermeulen, Perez acted as though nothing had been said. Further, although a medical doctor, she did not examine S.L. Instead, Perez discussed with Mrs. Vermeulen behavioral modification techniques to be utilized with S.L. and sent them home. She then telephoned HRS, and a child abuse report was completed. On April 18, 1984, an HRS employee went to S.L.'s school, removed the child from his class, and took the child to be examined by the Child Protection Team. S.L. was first examined by the nurse. When S.L. was unable to explain to the nurse from where each mark on his body originated (or refused to), she interrogated him with questions such as "Did your mommy hit you?" The nurse made notations on a chart indicating numerous marks or bruises on S.L.'s body. However, an HRS employee saw S.L. disrobed when he was being examined by the doctor on the team and saw only two marks on his lower back. Other HRS employees went to the Vermeulen home and removed all the children. No one discussed the incident or accusation with either Mr. or Mrs. Vermeulen until the following day. Until he was removed from her class on April 18, 1984, S.L. was taught by Debbie Froug an Exceptional Education teacher for emotionally disturbed children. Although Froug describes S.L. as a basically honest child, she testified that he sometimes gets very confused. A careful review of the videotaped testimony of S.L. and of the conflicting testimony of the witnesses in this case indicates that Froug's latter description is probably an understatement. No witness in this case heard the same explanation (or accusation) as any other witness. S.L's videotaped testimony illustrates why: there is no statement made by S.L. that is not contradicted by him a few seconds later. For example the videotaped deposition contains on page 27 the following: O. Did you ever have a black eye? A. No. O. Didn't you talk to Dr. Perez about having a black eye once? A. Yes, but I didn't. How did you get the black eye? One of the kids on the bus. Things stated in the affirmative by S.L. in his deposition are also stated in the negative in that same deposition. Further, it is sometimes impossible to ascertain if S.L. is describing being hit by his real father, by his real mother, or by his foster mother. Although no accusation appears to ever have been made, including in the Administrative Complaint, that Jacob Vermeulen ever struck S.L., by the time of S.L.'s deposition eight months after the alleged incident when S.L. was asked if Jacob ever hit him, that question was answered in the affirmative. In short, the evidence is clear that S.L. had some bruises or marks on his body on April 18, 1984; that those bruises or marks were both received accidentally and intentionally inflicted, and that the bruises or marks on S.L.'s body were received as a result of S.L. falling from being uncoordinated or overmedicated, from S.L. flinging himself onto the floor or onto or against objects, and from being hit or kicked by other children with whom S.L. engaged in almost-daily physical combat. Donna and Jacob Vermeulen used only approved behavior modification techniques with S.L. and did not hit S.L. with or without any object, spank S.L., or otherwise inflict physical abuse upon him. Although the Vermeulens' license as a foster home was in effect at all times material hereto, it has lapsed. A foster home license is not automatically renewed but rather requires an annual licensing study. Other than "the incident" charged herein the Vermeulens have received no prior complaints from HRS.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is REC0MENDED that a Final Order be entered dismissing with prejudice the Administrative Complaint filed herein and directing that any licensure study performed regarding the renewal or extension of Respondents' license be made omitting therefrom consideration of any of the matters set forth herein. DONE and RECOMMENDED this 19th day of July, 1985 at Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of July,1985. COPIES FURNISHED: Leonard Helfand, Esquire Department of Health and Rehabilitative Services 401 N.W. 2nd Avenue, Suite 1070 Miami, Florida 33128 Thomas J. Walsh, Esquire 590 English Avenue Homestead, Florida 33030 David Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
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
