The Issue Whether the Petitioner should be granted a foster home license.
Findings Of Fact Petitioner, Kate Shaw, applied for a license to operate a family foster home. By letter dated November 18, 1998, the Department notified Petitioner that based on findings in FPSS Abuse Report No. 92-069954, the Department was denying her application for a license to provide foster care. Furthermore, the letter advised Petitioner that she had the "right to request an [a]dministrative [h]earing to review the Department's decision and to request an exemption." FPSS Abuse Report No. 92-069954 named Petitioner as the perpetrator of abuse upon her 13-year-old daughter, Crystal Fishburne (Crysal)/Ms. Fishburne). That report was classified as confirmed in July or August 1992. The incident which was the subject of the abuse report occurred on the evening of July 3, 1992, and was reported to the abuse hotline on that same evening. The Department of Health and Rehabilitative Services, the agency previously responsible for investigating reports of child abuse, assigned a child protection investigator to investigate the subject report. On July 4, 1992, the investigator assigned to the case went to Petitioner's home and interviewed Petitioner and her daughter, Crystal. During the interviews, both Petitioner and her daughter told the investigator that Petitioner had hit Crystal with an extension cord the prior evening. Welts or marks were left on Crystal's legs, arms, and back as a result of Petitioner's hitting her. As a part of the investigation, these marks were photographed. However, no medical examination was ever conducted. On July 4, 1992, after the investigator interviewed Petitioner and Crystal, she tried to take Crystal to the Family Services Program for a cooling-off period, but Crystal refused to go. After the investigation, an abuse report was prepared finding that Petitioner had hit Crystal several times with an extension cord leaving linear and looped marks on the daughter's legs, arms, and back. Petitioner has never denied that she hit Crystal with an extension cord on the evening of July 3, 1992. However, during the investigation and at the hearing, Petitioner disputed two statements that Crystal made to the investigator on July 4, 1992. First, Crystal reported that Petitioner had hit her with an extension cord on one other occasion. Second, with regard to the July 3, 1992, incident, Crystal stated that her step-father had held her down while her mother hit her. At hearing, Ms. Fisburne (Crystal) provided credible testimony that the aforementioned statements were not true, but were made only because she was angry and wanted to get away from her mother. At the time of the July 1992 incident and during the two years prior thereto, Crystal was a difficult child who refused to follow Petitioner's directions, did whatever she wanted to do, and threatened to call the police if Petitioner "did anything" to her. Crystal exhibited numerous behavior problems. Crystal became violent with Petitioner; routinely skipped school; left home for days at a time; and stole Petitioner's car twice within a one-month period. The first time Crystal stole Petitioner's car, she kept it for one day; the second time Crystal stole the car, she kept it three days. When Crystal ran away from home, she would often return to Petitioner's house during the day when no one was at home and break in and steal food and money. Also, in one instance, Crystal broke into someone else's house. On the day of the incident, Petitioner was "pushed to the limit" and resorted to the use of corporal punishment as a means of redirecting her daughter's behavior. Petitioner expressed regret about hitting her daughter with an extension cord. However, she believed that corporal punishment was appropriate given the seriousness of Crystal's behavior, the length of time Crystal had been exhibiting this behavior, and the ineffectiveness of other disciplinary methods, such as placing Crystal on restrictions and giving her extra chores to perform. Prior to the July 3, 1992, incident, Petitioner had sought help in dealing with Crystal's behavioral problems from various community resources. At the suggestion of a school counselor, Petitioner arranged for counseling for Crystal. However, after several sessions, the counseling was discontinued because Crystal was uncooperative. In Crystal's words, referring to the counselor, "I didn't want to talk to the man." When Crystal ran away from home, Petitioner contacted the Sheriff's Office but was told that it could provide no assistance because there was no law against a child running away from home. However, Petitioner was told by the Sheriff's Office that since Crystal was a minor, whenever she came home, Petitioner would have to allow her to return. Finally, during one or more of Crystal's episodes, Petitioner attempted to take her to the detention center for a 72-hour cooling-off period. These efforts were likewise unsuccessful because the detention center refused to accept Crystal. Other than the incident referred to in the FPSS Abuse Report No. 92-069954, Petitioner has not been the subject of an abuse report. Since the July 1992, Petitioner has been employed in several jobs that involve working with children. She was employed as a house parent in a home for teenage mothers and their babies; a back-up parent for the Department of Juvenile Justice to children who were removed from their home; and a substitute teacher. Despite the discrepancies in statements made by Petitioner and her daughter and in FPSS Abuse Report No. 92-069954, there is no evidence that Petitioner requested a hearing to have the abuse report expunged or amended as required in Section 415.504(4)(d)1.b., Florida Statutes (1991). Because the report was never challenged, FPSS Abuse Report No. 92-069954 remains and is properly deemed a confirmed report of abuse. Furthermore, there is no indication that Petitioner ever applied for or was granted an exemption from disqualification as provided in the Florida Statutes. In light of the confirmed report of abuse naming Petitioner as the perpetrator of abuse against a child and in absence of the Department's granting an exemption from disqualification, the Department properly found that Petitioner failed the required screening and thus, properly denied her application for a foster home license.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a final order denying Petitioner's application for licensure as a family foster home. DONE AND ENTERED this 29th day of July, 1999, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD 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 29th day of July, 1999. COPIES FURNISHED: Gregory D. Venz, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700 John S. Slye, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700 Kate Shaw 619 38th Street South St. Petersburg, Florida 33711 Amy V. Archibald, Esquire Department of Children and Family Services 11351 Ulmerton Road, Suite 100 Largo, Florida 33778-1630
The Issue The issue to be resolved in this proceeding concerns whether the Respondents' foster home license should be revoked. The reasons for the intended agency action are set forth in the Notice of Revocation letter of October 12, 1998, wherein it is alleged that the Respondent, Mr. Baldwin, used corporal punishment to discipline two foster children placed in his care and that Mr. Baldwin consumed alcohol in a negligent manner, placing the health and safety of foster home children in his care at risk by allegedly drinking alcohol while transporting children in his vehicle.
Findings Of Fact The Petitioner is an agency of the State of Florida charged in pertinent part, with regulating the licensure and child care standards of foster care homes pursuant to Section 409.175, Florida Statutes (1998). The Petitioner licenses foster care providers situated as are the Respondents in this proceeding. On or about July 13, 1998, Ms. Kim Garrett (now Mrs. Kim Rayburn) was a supervisor with the "Homeward Bound Program." She was contacted by Nancy Clark, a department foster care caseworker. Ms. Clark advised Ms. Rayburn that she had smelled an odor of alcohol on Mr. Baldwin during the home visit she conducted. As a result of this observance, Randy Martin, a Homeward Bound case manager, interviewed one of the foster children to determine if alcohol was being consumed in front of the children. The child denied that he had seen Mr. Baldwin drinking alcohol although he knew that beer was kept in the family's refrigerator. Thereafter, Mr. Baldwin called Ms. Rayburn, after the interview with the child took place, demanding that she meet with him at his home. He was upset about the child being interviewed. When she explained Homeward Bound's concerns, Mr. Baldwin stated that he only drinks in his bedroom and not in front of the children. On or about August 23, 1998, Jesse Wilson, a nurse with the Health Department, encountered the Respondents at a daycare center. She was familiar with Mr. and Mrs. Baldwin because she was a caseworker for J.G., a foster child in the Baldwin's care and custody. During this interview or encounter, Ms. Wilson noticed an odor of alcohol emanating from Mr. Baldwin. She was concerned that Mr. Baldwin was transporting foster children on that occasion when she smelled alcohol on his breath. She also testified that she saw him transport the children away from the daycare center in the open back of his pick-up truck. Both Mr. and Mrs. Baldwin deny that that has ever occurred. They have an "extended cab" pick-up truck and contend that they always transport the children in the seat inside the back of the extended cab. During this encounter, Ms. Wilson testified that Mr. Baldwin had admitted to her that he used corporal punishment on one occasion in the Respondents' home and demonstrated (by slapping Ms. Wilson on the leg) how he administered the corporal punishment. Mr. and Mrs. Baldwin directly disputed Ms. Wilson's testimony concerning Mr. Baldwin drinking or smelling of alcohol on that occasion. Mr. Baldwin denied that he used corporal punishment on any foster child and denies admitting to Ms. Wilson that he used corporal punishment on "J.G.," a child who was approximately fifteen months of age at the time of the admission testified to by Ms. Wilson. Ms. Wilson could not recall the make, model or color of the Baldwins' pick-up truck and did not immediately report her concern to Mrs. Baldwin, who was inside the daycare center at the time that Ms. Wilson purportedly observed the children being placed in the back bed of the pick-up truck for transport. She did not make an immediate report to anyone at the Children's Home Society or the Department about her concerns about smelling alcohol on Mr. Baldwin or the manner in which she believed him to be transporting the children. She made no effort to prevent his driving away with the children. On balance, it is found that the Baldwins did not transport children in the truck bed. Ms. Niloufer Billimoria is a receptionist at the Homeward Bound office. She testified that on one occasion, when Mr. Baldwin transported children to the Homeward Bound office for visitation, she smelled alcohol on his person. Another foster parent, Sue Little, was present at the time and testified that she noted the odor of alcohol with regard to Mr. Baldwin. Ms. Billimoria reported her concerns to Randy Martin who reported the matter to his supervisor Kim Garrett. Mr. Martin also spoke directly with Mr. Baldwin about his concern. Mr. Martin testified that he noted smelling alcohol on the breath of Mr. Baldwin at the time of their conversation. He concluded, however, that Mr. Baldwin did not appear to be intoxicated. The children were allowed to leave with Mr. Baldwin after that visitation period ended. Immediately following this visitation period Kim Rayburn and Jocelyn Gilbert, another Homeward Bound staff member, made a home visit at Mr. Baldwin's home on August 21, 1998. They advised Mr. Baldwin of their concerns about his transporting foster children after having consumed alcohol. He denied doing so, but as a result of the concerns of Ms. Rayburn and Ms. Gilbert, he agreed to have an alcohol assessment done at "Pathways" an affiliate of the Lakeview Center, a drug abuse treatment facility. Mr. Baldwin's appointment at the Lakeview Center was scheduled for August 26, 1998. He appeared on that date at the scheduled time but did not undergo an evaluation because a cash payment was required and the Lakeview Center would not accept a credit card or a check. His appointment was thus rescheduled for September 2, 1998. Mr. Logan, an assessment specialist at Pathways who evaluated Mr. Baldwin, testified that he smelled of alcohol on August 26, 1998. This conflicts with the testimony of Mr. Baldwin, however, who testified that because of the payment method mix-up that he did not even see Mr. Logan on August 26, 1998. He never got past the reception desk since he could not pay for his evaluation on that date. He did see Mr. Logan on September 2, 1998. Mr. Baldwin testified that he consumed no alcohol on the day of his September 2, 1998 assessment at Lakeview. He provided a urine sample for alcohol testing on that day, however. His urinalysis test showed that he had a blood alcohol content of .125 grams of alcohol per deciliter of blood. This is inconsistent with Mr. Baldwin's claim that he had his last drink of alcohol on the day before, September 1, 1998. He had no breathalyzer test or blood test for alcohol on that date. Mr. Logan found that Mr. Baldwin might benefit from a substance abuse, out-patient treatment regimen through Lakeview Center's drug and alcohol counseling center and found that, given the nature of child care that he is directly or indirectly engaged in, random alcohol testing should be conducted. After receiving Mr. Baldwin's substance abuse assessment the Department elected to remove the two foster children from the Baldwin home. On September 14, 1998, an exit interview was conducted with J.R., one of the minor foster children who claimed that Mr. Baldwin had grabbed him tightly by the front of his shirt when he made an "F" on his report card, and also had "hit him on the leg with his hand." One other foster child claimed that Mr. Baldwin had hit her on her "rear end" when she got in trouble. These two statements are hearsay but are admitted for the limited reason of corroboration of the admission Mr. Baldwin made to Ms. Wilson at the daycare center concerning how he had employed corporal punishment, i.e., by slapping a child on the leg. Thus the Department elected to revoke the foster home license after these exit interviews, based upon improper use of corporal punishment and negligent use of alcohol in a manner that significantly endangered the safety of the children. The testimony of the above-referenced Petitioner's witnesses who detected the smell of alcohol on Mr. Baldwin establishes that he was transporting foster children at a time when he had consumed alcohol. It has not been established that he was so impaired as to endanger the children substantially, but on the other hand he should not have consumed any alcohol if he was going to be transporting children. It is noteworthy that at the time that they detected the odor of alcohol, these witnesses did not take any action to prevent Mr. Baldwin from transporting the children on those occasions. Their lack of intervention at those times indicates that the health or safety of the children may not have been at "substantial risk" on those occasions. In summary, it appears that Mr. Baldwin did engage in the conduct complained of by the agency, but the evidence also shows that he transported the children at a time when he did not have advance notice that he was going to be required to transport the children in place of Mrs. Baldwin, the other Respondent. Therefore, the evidence does not show that he transported the children after having consumed alcohol with advance knowledge that he would have to be transporting children when he made the decision to drink alcohol on or shortly before the occasions in question. The evidence also shows that the instances of corporal punishment were rare and certainly not of a severe nature. The totality of the evidence, while it shows that the conduct occurred, demonstrates that it was not of a sufficiently severe and recurring nature as to establish in a clear and convincing way that revocation of the license should be effected. In this regard, the other licensed respondent, Mrs. Baldwin was shown to be innocent of any negligent or otherwise wrongful conduct of the type alleged. Unrefuted testimony, particularly that of Lily Crosby, shows that the foster children received good and beneficial care in the Baldwin's home. Ms. Crosby, when she was a "homemaker," employee of the Department, visited the home two to three times a week for a period of fifteen months. She never observed Mr. Baldwin consuming alcohol during that time nor doing anything else that would place the foster children at risk. This circumstance is supported by the testimony of Ms. Baldwin to the effect that her husband never drank alcohol in the presence of the children, nor had she observed him transporting them after having consumed alcohol.
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 entered finding that the Respondent, Michael Baldwin, committed the violations charged and that the licensure be continued but placed in a probationary status, conditioned on Mr. Baldwin never again transporting children on a day when he has consumed alcohol, that he obtain the alcohol abuse counseling recommended by Mr. Logan and that he agree to submit to random drug/alcohol testing. This probationary status should continue for a period of one year, during which time, if alcohol is detected to have been consumed in the manner and circumstances proscribed or corporal punishment, employed, that immediate revocation ensue. DONE AND ENTERED this 3rd day of December, 1999, in Tallahassee, Leon County, Florida 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 the Clerk of the Division of Administrative Hearings this 3rd day of December, 1999. COPIES FURNISHED: Paul Flounlacker, Esquire Department of Children and Family Services 160 Governmental Center Pensacola, Florida 32501 R. John Westberry, Esquire 1108-A North 12th Avenue Pensacola, Florida 32501 Samuel C. Chavers, Acting Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399 0700 John S. Slye, Esquire Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner's license to operate a family daycare home should be suspended based upon the Petitioner's husband's plea of nolo contendere to a disqualifying second degree felony.
Findings Of Fact The Petitioner, Sislyn Gonsalves, has operated a family daycare home at times pertinent hereto, including in 2005 up through the time of the hearing, pursuant to license number F12V00010. The family daycare home is located at 2820 Lake Helen Osteen Road, Deltona, Volusia County, Florida. The Petitioner and her husband Clayton A. Gonsalves have had repeated disciplinary problems with their 13 year old son, K. G. K. G. had been repeatedly in trouble at school and may have been involved in an incident involving a theft, of which his parents became aware. On or about April 16, 2005, an incident occurred in the Petitioner's home. The Petitioner's husband Clayton Gonsalves and the Petitioner were trying to leave for church that morning and to persuade their son K. G. to attend church with them. An argument between the son and Mr. Gonsalves ensued. During the incident Mr. Gonsalves picked- up a short piece of light weight PVC pipe, approximately three feet by three quarter's of an inch, and struck his son several times on the left shoulder and the right hand. The persuasive evidence in this case is that the blows with the light weight PVC pipe did not leave marks. The son, K. G., being angry and upset at the time, abruptly left the family premises. The Petitioner and her husband and other child thereupon preceded to attend church. Later that day, after the incident had apparently been reported to the police, the police arrested Mr. Gonsalves and charged him as having committed child abuse. On or about May 11, 2005, Mr. Gonsalves entered a plea of nolo contendere on a charge of aggravated child abuse, which is a second degree felony. This resulted from the incident described above. As a result of that plea Mr. Gonsalves was sentenced to a term of three years of probation, and adjucation was withheld. As a condition of his probation he was ordered to have "no violent contact" with the victim, K. G., and to "comply with the Department of Children and Family's conditions and case plans." Mr. Gonsalves works in the State of New York as a plumber. He returns to his family residence, to be with his family, whenever possible, between jobs. He resides there with the Petitioner and their children at such times. He is often present in the family residence while the Petitioner is providing daycare for other children and often assists her in providing care for the children. The unrefuted, persuasive evidence adduced by the Petitioner through her testimony and that of her witnesses establishes that she and her husband are loving parents who do not maintain an abusive home. They treat their own children and the children they provide daycare for, as clients, in a loving, responsible and positive way. The Petitioner is in the process of earning her college degree in Early Childhood Education and desires to continue in the business of providing daycare. The lack of an abusive climate in the home is borne out by the fact that the Petitioner's and Mr. Gonsalves's children are in the gifted program in school, and by the fact that K. G.'s grades and scholastic standing at school have marketedly improved since the incident in question. The Petitioner's witnesses, particularly her mother, described Mr. Gonsalves as a loving husband and father who does not commit abuse, who does not drink, smoke or abuse his wife or children. Witness Ayallo, the agency's Licensing Inspector, established that the Petitioner's family daycare home is always in compliance with relevant regulatory rules and statutes, and he corroborated the Petitioner's testimony concerning the history of disciplinary problems caused by her son. Witness Surgine, the Agency's Licensing Specialist established that the Agency only wanted to suspend the licensure because of the fact that the husband, Mr. Gonsalves, would, on occasion, be present in the home when child clients are present. The Agency did not feel that the incident justified a revocation of license. This is an unfortunate, isolated incident. The persuasive evidence of record shows that Mr. Gonsalves is not an abuser of his children, the children of others or his wife, the Petitioner. The Petitioner is operating her facility as an exemplary family daycare home and desires to continue to do so. Even though she and her family are enduring rather straitened financial circumstances, she is successfully pursuing a college degree in Early Childhood Education. The testimony of Ms. Corchado, whose son has been cared for by the Petitioner in excess of three and one-half years, corroborates the exemplary record and caring atmosphere maintained by the Petitioner in operation of her family daycare home. Ms. Corchado has tried many daycare facilities and believes that the Petitioner's is the best one she found in terms of providing a loving, positive, environment for her son. Her son "adores the Petitioner and her family" and has become very close to them, even attending church with them on occasion. The Petitioner helps her son with his school work and Ms. Corchado has never observed or learned of any abuse occurring in the home. The incident which occurred with Mr. Gonsalves and his son is clearly an isolated unfortunate occurrence. It was deeply regretted by all concerned even before the Agency Respondent became aware of it. It is ironic that the Petitioner, who has conducted an exemplary child care facility operation, has been placed at risk for losing her licensure status while other child care facilities licensed by the Respondent with more violations of record which can impinge on the adequate care of children can remain licensed under corrective plans and procedures. The Agency, commendably, has recognized the unjust, automatic operation of the statute at issue herein, in terms of the Petitioner's particular circumstances and incident, by declining to seek revocation of licensure but merely suspension until the issue of Mr. Gonsalves's residence in the daycare facility is resolved. In any event, this was unfortunate effort at child discipline which became a little too heated and went awry. As the Petitioner pithily and eloquently put it, "If you don't discipline your children, they will grow up and the police will do it for you."
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 suspending the license of the Petitioner for the above found and concluded reasons but that the suspension be stayed while, under appropriate Department supervision, the Petitioner and Mr. Gonsalves resolve the issue of his residence within the family daycare home location possibility of the licensed daycare home being re-located to another premises or while Mr. Gonsalves acts to secure an exemption (if successful) from the above-referenced disqualifying offense. DONE AND ENTERED this 4th day of January, 2006, 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 4th day of January, 2006. COPIES FURNISHED: Gregory Venz, 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 Sislyn Gonsalves 2820 Lake Helen Osteen Road Deltona, Florida 32738 George P. Beckwith, Jr., Esquire Department of Children and Family Services 210 North Palmetto Avenue, Suite 440 Daytona Beach, Florida 32114-3269
The Issue The issue in this case is whether Petitioner should revoke Respondent's license to operate a foster home for dependent children.
Findings Of Fact Petitioner is the state agency responsible for issuing licenses to operate foster homes for dependent children. Petitioner also prosecutes license discipline proceedings. Respondent is the maternal aunt of three female children, Deanna, Angelique, and Antoinette. Respondent is a retired teacher. She worked for the state of New York before she moved to Florida. She also receives Social Security payments. Prior to 1990, Respondent's three nieces lived with their biological parents in the state of New York. New York adjudicated the children dependent and assigned the children to the foster care of Respondent. The three nieces were approximately 5, 7, an 8 years old. New York paid Respondent $2,100 a month to provide foster care for the three children. New York pays a monthly board rate of $700 per child. Petitioner agreed to supervise Respondent's foster care on behalf of New York. On March 12, 1992, Petitioner and Respondent entered into an Agreement To Provide Foster Care For Dependent Children ("Foster Care Agreement"). Each Foster Care Agreement provided, in relevant part: We will not give the child into the care or physical custody of any other person(s) . . . without the consent of a representative of the Department. * * * We will notify the Department immediately of any change in our address, . . . living arrangements, family composition, or law enforcement involvement. * * * We will comply with all requirements for a licensed foster care home as prescribed by the Department. * * * This child is placed in our home on a temporary basis and is at all times under the supervision and control of the Department. We are fully and directly responsible to the Department for the care of the child. We will take no action to acquire legal custody or guardianship of the child. * * * The Department may remove the child from our home at any time but will, whenever possible, give us at least two weeks notice. Until May 2, 1995, Respondent provided foster care for her three nieces without incident. Respondent was a loving and caring foster parent while the children were young. The children regarded Respondent as their mother. On April 25, 1995, Petitioner increased Respondent's licensed capacity for the period May 2, 1995, through May 1, 1996, to five children. Petitioner assigned two Florida foster children to Respondent. Petitioner paid Respondent $592 a month to provide foster care for the two Florida children. Florida pays a monthly board rate of $296 for each child. Problems developed in the foster home due to overcrowding. Tiffany, one of the two Florida foster children, had an infant child. Tiffany did not maintain good hygiene for herself or her child. Tiffany neglected her child. The additional parenting responsibilities fell on Respondent. Petitioner reduced the overcrowding by removing the two Florida foster children. Petitioner removed Tiffany and her child on December 8, 1995, and removed the second foster care child as soon as the school year ended. Other problems persisted in the foster home separate and apart from the problem of overcrowding. The three nieces were growing up and were beginning to manifest problems from unresolved childhood issues. Each niece had unresolved issues that presented very difficult parenting problems. As the nieces grew older, Respondent did not have the parenting skills necessary to parent her three nieces. Deanna's unresolved issues are illustrative. Deanna weighed under four pounds at birth. The mother was a cocaine addict throughout the gestational period. There was some fetal distress related to withdrawal. Deanna was always irritable. She had a very low frustration tolerance. She had frequent tantrums in which she would throw, spit, and hit her siblings and Respondent. Deanna had been treated with various medications. They included Ritalin, Depakote, Dexedrine, and Clonidine. The other two nieces presented Respondent with similar parenting problems. They hit Respondent when they did not get their way, frequently lied, and stole items from home and school. The problems presented by the three nieces would have been difficult enough to deal with for the best of parents. However, Respondent practiced inappropriate parenting techniques. Respondent used excessive corporal punishment to discipline all of her foster children. She practiced humiliation tactics on her oldest niece. Respondent gave preferential treatment to the youngest niece. Respondent arbitrarily allowed the youngest niece to have privileges denied to the other nieces. Respondent routinely gave the youngest niece excessive amounts of money for nominal tasks. For example, Respondent paid the youngest niece $100 for two hours work around the house. Respondent manages her own money poorly. Her income is insufficient to cover her expenditures. She is evasive and vague about her finances. Respondent became depressed and withdrawn. She remained non-verbal with lengthy periods of silence. She stared at the wall. When counselors and case workers confronted Respondent regarding her depression, she became very angry and agitated. She retreated into denial and relied on adolescent responses to distance herself from those trying to help her and her nieces. Petitioner conducted a critical case review on June 28, 1996. Petitioner provided numerous intervention services for Respondent and her nieces from July through November, 1996. Petitioner provided counseling through The Harbor Mental Health Services ("Harbor"). Respondent and her three nieces attended group therapy at Harbor. In addition, each niece participated in individual counseling at Harbor. Petitioner provided an Intensive Crisis Counseling Program ("ICCP") for Respondent. ICCP is an intense in-home counseling program over six weeks. It is designed to prevent removal of foster children from the home. Petitioner extended the ICCP in Respondent's home for an additional six weeks. Petitioner provided psychological evaluations to determine if Respondent was suicidal or suffered from alcoholism. The evaluations found no evidence of either problem. Therapists attempted to assist the individual family members toward effective communication, establishing boundaries, reasonable consequences, and consistent discipline. The intervention services provided by Petitioner were unsuccessful. Respondent and her nieces persisted in their inappropriate behavior. Petitioner issued a provisional license to Respondent for the period August 2, 1996, through November 2, 1996. The license required weekly visits by a foster care counselor. Petitioner conducted a routine home visit on September 26, 1996. The situation had not improved. On October 4, 1996, Petitioner conducted another critical case review. At the critical case review, the foster care counselor learned from members of the ICCP team that Respondent planned to leave Florida to visit New York. On October 10, 1996, the foster care counselor telephoned Respondent. Respondent confirmed that she was leaving for New York on October 11, 1996. When the foster care counselor asked Respondent to provide the location of her three nieces and the identity of the respite caregiver during Respondent's absence, Respondent stated only that she was leaving the nieces with her mother. Respondent told the foster care counselor that if Petitioner wanted to see her nieces while Respondent was in New York, the foster care counselor should telephone Respondent's home and leave a message on Respondent's voice mail. Respondent's mother would check the messages each day and return the case worker's telephone call. Respondent's manner and tone were abrupt, cryptic, abrasive, and angry. The foster care counselor was unable to obtain any further information. Respondent terminated the telephone call. Respondent violated several requirements of each Foster Care Agreement. Respondent allowed the removal of each niece from her home by someone other than Petitioner's representatives. Respondent gave each foster child into the care or physical custody of another without the consent of Petitioner. Respondent failed to provide Petitioner with adequate notice of any change in the living arrangements or family composition of the foster children. Respondent's mother was not, and never has been, an authorized foster care parent or respite caregiver. Respondent did not consent to Respondent giving her nieces to the physical care and custody of Respondent's mother. Respondent did not give Petitioner the information needed for Petitioner to adequately supervise the foster children during Respondent's absence. Petitioner determined that it could no longer supervise Respondent's foster care on behalf of New York. Petitioner ascertained the location of the foster children. On October 17, 1996, Petitioner removed the nieces from the home of Respondent's mother. Petitioner returned the nieces to the appropriate authorities in New York. By letter dated, October 17, 1996, Petitioner notified Respondent of the action taken. The letter also notified Respondent that the foster care home was closed and that Respondent's license was being revoked.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty of violating material provisions of the Foster Care Agreement for each of her three nieces, failing to effectively supervise and safeguard her foster home, and revoking Respondent's license to operate a foster care home for dependent children. RECOMMENDED this 28th day of April, 1997, in Tallahassee, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 28th day of April, 1997. COPIES FURNISHED: Richard Doran General Counsel Department of Children and Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory D. Venz Agency Clerk Department of Children and Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Ralph McMurphy, Esquire District 13 Legal Office Department of Children and Families 1601 West Gulf Atlantic Highway Wildwood, Florida 34785 Patricia Genovese Qualified Representative 13140 Jessica Drive Spring Hill, Florida 34609 Yvonne B. Butler, Esquire 6341 Gainsboro Avenue Spring Hill, Florida 34609
Findings Of Fact In May, 1979, Petitioner submitted to Respondent an application for a license to operate a retardation group home facility at 4134 San Seviera Lane, Orlando, Florida. By letter of July 27, 1979, Respondent's District VII Administrator, Lucy D. Hadi, advised Petitioner of the denial of her application due to her "inability to comply with the standards as set forth in 10F-6.10, Florida Administrative Code." The letter further advised Petitioner of her right to a hearing under Chapter 120, Florida Statutes and Petitioner thereafter appealed the decision and requested a hearing in the matter. (Petitioner's Exhibits 5-6) Prior to filing her application for licensure, Petitioner had operated a retardation facility at her residence for more than three years. The facility was originally operated under the supervision of an organization called the Children's Home Society, but in January 1977 the home came under the supervision of Respondent. For a five-year period prior to operation of the residential facility, Petitioner was employed at a Sunland Training Center in Orlando where she served as a supervising aide in charge of a ward for mentally retarded children. (Testimony of Petitioner, Petitioner's Exhibit 5) During the period 1977-1979, Petitioner had operated as an "approved" residential facility under contract with Respondent, and was subject to standards set forth in the agency's written policy concerning the community residential placement program. In 1977, Chapter 393, Florida Statutes, was amended to require licensure of such facilities, thus prompting Petitioner's application. New standards for licensure and operation of residential facilities were promulgated by the Respondent in 1978 in Chapter 10F-6, Florida Administrative Code. Although the new operating standards did not vary substantially from the existing policy guidelines, Respondent held several training sessions in February, 1979, to acquaint operators of currently approved facilities with the new provisions which would govern them when they became licensed under the new law. Petitioner attended these training sessions at which time the revised standards were explained, including a new requirement that agency approval had to be obtained prior to the acceptance of a private client by a residential facility. At that time, Respondent's policy standards related only to clients referred by tile agency and not to "private clients" who might reside in the facility under separate agreements with the parents. (Testimony of Petitioner, Hadi, Porta, Petitioner's Exhibit 4) On May 3, 1979, one of Respondent's supervisory employees conducted a pre-licensure inspection of Petitioner's home. Petitioner then had seven agency clients and two private clients residing in the facility. Respondent's inspector advised her that agency approval would be required to accept private clients after receiving a license. Petitioner acknowledged this requirement and told the inspector that she would not take such clients without the approval of the HRS program supervisor. The inspector found several minor deficiencies including insufficient square footage and baths for the number of individuals residing in the home. However, Petitioner was in the process of building an addition to the home at that time which would meet the program requirements as to physical facilities. The new agency rules also required that a prospective licensee have sufficient available financial capital or income to operate the facility for a sixty-day period without depending upon agency client fees or payments. Although Petitioner signed a form statement attached to her application stating that she had sufficient capital for the required sixty-day period, she did not complete the various items showing expenses and income as required in the form. She did, however, enclose a separate budget showing various expenses of operating the facility which were not later challenged by the agency. In addition, the reverse of the application form reflected that proof of financial ability to operate the facility could include such a budget showing that anticipated expenses did not exceed reimbursement, and also providing that sufficient capital could include any credit available to the applicant. Petitioner owns her home which presently has a market value of $52,000, with an outstanding mortgage of$16,000. (Testimony of Petitioner, Porta, Petitioner's Exhibit 5) On July 9, 1979, while her application was pending, petitioner accepted a private client, Curtis Duncan, for a brief period while his parents were on vacation. Curtis was a six year old hyperactive child with cerebral palsy. He was unable to walk and had limited control of head movement. Petitioner did not advise Respondent's personnel of his presence in her home because she viewed it as merely a temporary "baby sitting" job which did not involve an agency client. On Tuesday, July 10, she sent the child-to his regular school for the profoundly handicapped. That evening, while Petitioner was feeding him, he grabbed her arm and, as Petitioner pulled her arm free, his head struck the flat edge of the round table. The blow caused a knot to rise in the middle of his forehead and Petitioner applied an ice pack to reduce the swelling. The boy seemed to have no after effects from the injury. Petitioner sent the child to school the next day. Her mother, a staff member of the group facility, advised the school nurse about the incident and the nurse indicated that the child appeared at school frequently with bruises. Although it was discovered at school that he had a 102 temperature, school authorities were not alarmed because he had a history of frequently having high temperatures. Petitioner took the child's temperature again when he returned from school and found it to be normal. She kept him home from school on Thursday in order to observe him. In the afternoon while Curtis was in the home's multipurpose room in his chair, Petitioner heard him making noises and saw another child leaving the room. Petitioner observed that Curtis's eye had been lacerated and that a hair brush was on the floor. She concluded that the other client must have hit Curtis with the brush because he had done so before to other children. Curtis, however, seemed to have no after effects from the injury and had a good appetite that evening. On Friday, July 13, Petitioner planned to send the boy to school. While her daughter and mother were feeding Curtis that morning, the boy jerked his head back and appeared to have trouble breathing The daughter informed Petitioner who was talking to a visitor in another room in the house. When Petitioner entered the other room, she observed Curtis on his back on the foam rubber mattress on the floor where he slept. He had food in his mouth and she at first believed that he had choked on it. She immediately began administering standard resuscitation methods and had her mother call the emergency rescue unit. It arrived a few minutes later and after paramedics had manipulated the boy by hitting him on the back and tossing him in order to dislodge a supposed object in his throat, and after further resuscitation efforts, he was taken to Orlando General Hospital and thereafter transferred to the Orlando Regional Medical Center. Petitioner had advised the child's grandmother the previous day concerning the bruise received on Tuesday because she did not know where the parents were located at the time. After Curtis was taken to the hospital, Petitioner picked up the grandmother and took her to the hospital. On July 14, 1979, the child died at the hospital. The death certificate showed the immediate cause of death as bilateral subdural hematoma due to or as a consequence of blunt head trauma, and the death was categorized on the death certificate by the Associate Medical Examiner of Orange County, as a probable homicide. On July 17, 1979, Respondent's personnel removed the other children from Petitioner's facility and transferred them to other residences pending investigation of the death by its personnel and by Orange County law enforcement authorities. (Testimony of Petitioner, Weir, Kessler, Respondent's Exhibits 1-4) The medical examiner who determined the cause of death had conducted an autopsy of the deceased child on July 15, 1979. Although he found a number of specific areas of trauma consisting of contusions, lacerations and abrasions on the body, he is of the opinion that death could have resulted only from either of two contusions on the forehead or one which encircled the right eye. He estimated that each of the three injuries had been inflicted within five days prior to date of death. At the hearing, the medical examiner testified that manifestations of the death inducing trauma from subdural hematoma were fever, headaches, sensitivity to light, irritability, nausea, lethargy, and inability to swallow. He was of the opinion that the contusions on the forehead probably were not Self-inflicted because they were in the frontal rather than the occipital area. He further questioned whether the wound on the right eye could have been caused by a hair brush and was also of the opinion that the contusions on the forehead would have required the head to have hit a flat table top twice, but were not consistent with blows on a table edge. He acknowledged that the head of pediatrics at Orange Memorial Hospital had-seen the child when brought to the hospital and had been of the opinion that there had been no child abuse. (Testimony of Kessler, Respondent's Exhibits 1-4) The Orange County Sheriff's Department and the Office of the State Attorney of Orange County investigated the circumstances surrounding the death of Curtis Duncan in view of the stated probable cause of death in the death certificate as homicide. No charges have been filed however, and the case is listed as "open" in the files of the state attorney. (Testimony of Jaeger) Subsequent to the death of the child, three of Respondent's District VII personnel were appointed to conduct an administrative inquiry. On July 24, 1979, they interviewed Petitioner and her mother at their home. Based on these interviews, and information derived from various files of the Respondent concerning members of Petitioner's family, the committee prepared a "social summary" or report concerning the background of Petitioner and various members of her family. Petitioner, who was born in 1930, together with her mother and sister, had been subject to abuse in her childhood by her father who had been a heavy drinker. Petitioner had been sexually abused by her father and, at an early age, she contracted a venereal disease from an intoxicated physician whom the father had brought home to treat the two girls when they were ill. After this incident, Petitioner and her sister lived in a children's home for three years. The mother then moved with the girls from Arkansas to Florida in 1944 or 1945. Petitioner was married twice and her second husband was physically abusive to her and her children. She divorced him in 1970 or 1971 at which time she commenced employment at Sunland. During one period of her first marriage, Petitioner's father had come to Florida to live with her, but was abusive toward her children, thereby causing her husband to insist that he leave. Petitioner told the interviewers that on one occasion when she was a child, she attacked her father with a poker after becoming angry about his mistreatment of her mother. A "district intake specialist" in Respondent's District VII Children's Youth Program Office was qualified as an expert at the hearing to testify concerning the sociological of concept known "abuse syndrome" which draws aspects a as upon a body of information developed through research projects concerning various aspects of child abuse. This term is defined as an evolutionary process by which adults who were denied "positive developmental experience" as children, are inclined to compulsively apply negative experiences in the form of mental, physical, or sexual abuse to their children or to children in their care. It proceeds under the theory that parents who were abused as children are not always able to control their emotions and sometimes react to frustrations incident to child rearing by violent acts directed to the child. These individuals are said to have a history of marital problems and generally seek a spouse who is violent. Such individuals do not know how to handle minor crises involving children and are apt to react excessively in minor incidents. This course of conduct can be of a continuing or latent nature. Many abused children are those with special needs such as the emotionally or physically handicapped who need special attention. There is a pattern of formerly abused individuals to seek foster children or employment in daycare centers in an effort to assist them and compensate for their own problems. Therapy administered by social or mental health workers in the form of counseling is generally required to alleviate the underlying problems of those subject to the syndrome. Respondent's expert is of the opinion that Petitioner's family and social background presents a typical abuse syndrome situation. Respondent's District VII Protective Services supervisor who deals on a constant basis with child abuse and neglect cases has found that some 90 to 95 percent of her cases show the existence of the abuse syndrome. However, no statistics were offered into evidence as to the number or percentage of persons who were abused as a child who later inflicted abuse themselves. (Testimony of Ivancevich, Haase, Brewer, Respondent's Exhibit 4) Respondent's denial of Petitioner's application for license on July 27, 1979, was based in part upon the recommendations of Respondent's Developmental Services supervisor who had served on the committee of inquiry. He recommended denial solely because of the Duncan incident. Specifically he found that the child had not received HRS permission to be in Petitioner's home, and that Petitioner had improperly handled the "emergency" situation by not obtaining medical treatment at the outset Of the child's injuries. The overriding factor in his recommendation, however, was that the circumstances of the child's death had not been fully ascertained and that therefore, in the interest of protecting child welfare, it would be unwise to approve Petitioner's application until such time as a final determination is made. He conceded that Petitioner's background had played a part in his recommendation. He also acknowledged that permission was routinely granted by the agency for a facility to take in private clients if it did not interfere with the adequacy of the facilities or the capabilities of the staff. Respondent's District VII administrator, who made the final decision of license denial, acknowledged that Petitioner had had a good record as a facility operator prior to the Duncan incident with no complaints or indications of abuse or neglect of her clients. She based her decision on the staff reports received concerning the Duncan incident and the manner in which it was handled by Petitioner. She was unaware however, that the school nurse had been notified of the child's initial injury on Tuesday, July 10 and conceded that although she believed Petitioner should have called a physician concerning the matter, admitted that the nurse should have done so also. She was also concerned that Petitioner had not resorted the boy's injuries or removal to the hospital to the agency. She was of the opinion that the fact of an unsolved homicide reflected unfavorably upon the character of Petitioner and thus the suitability of her home for client placement. Although certain questions were raised concerning Petitioner's financial ability to operate a home for the required sixty-day period, the district administrator acknowledged that she was unaware of the extent of Petitioner's financial resources. (Testimony of Brewer, Hadi, Petitioner's Exhibit 6) The principal of the school which Curtis Duncan had attended since 1976 observed that he exhibited self-destructive behavior and would frequently bite his shoulder, index finger, and thumb. He would grab at things and sling his head back and forth in all directions. On occasion, he would strike his head against an object. In one instance he had pulled his chair on top of him which struck his head. He also would lunge forward while being fed. His parents had reported to the principal that he had displayed this type of behavior at home also. He had exhibited bruises at school in the past. The chair in which he sat had a harness and, if it was not secure, he could throw himself out of the chair. On Wednesday, July 11, while at school, the principal observed that Curtis ate in a normal manner and apparently had no discomfort from the injury he had received on the prior evening. (Testimony of Weir) A pediatrician who had treated Petitioner's clients for various ailments for about three years never observed any indication of abuse or neglect of the children. Petitioner's supervisor at Sunland for a period of two years considered that Petitioner was extremely responsible and provided excellent care for the children at that facility. She found Petitioner to be quite capable in handling emergencies and never exposed any child to injury. The supervisor gave Petitioner outstanding performance evaluations during this period and attested at the hearing to her good character. Similarly, several operators of residential facilities in the Orlando area testified at the hearing as to their knowledge of Petitioner and as to her excellent qualifications and reputation in the community. The mothers of two handicapped children who have lived in Petitioner's facility both as HRS and private clients, and who are very difficult to handle, testified concerning their extreme satisfaction with Petitioner's care and ability to manage the children in a highly successful manner. Respondent's facility has been the subject of unannounced inspections by Respondent's personnel in the past and it was always found that the children were receiving excellent care and supervision. (Testimony of Cuevas, Brainerd, Oliver, Marini, Willett, Hopkins, Goins, Petitioner's Exhibit 3)
Recommendation That Petitioner's license application for a group home facility pursuant to Chapter 393, Florida Statutes, be approved. DONE and ENTERED this 5th day of February, 1980, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Department of Health and Rehabilitative Services Attn: George Waas, Esquire 1317 Winewood Boulevard Tallahassee, Florida 32301 Dennis L. Salvagio, Esquire 22 East Pine Street Orlando, Florida 32801 Douglas E. Whitney, Esquire Department of HRS District VII Counsel Room 912 - 400 West Robinson Street Orlando, Florida 32801
The Issue The issue to be resolved in this proceeding concerns whether Petitioners committed violations of Florida Statutes and Florida Administrative Code sufficient to justify revocation of Petitioners’ license to operate a foster care facility.
Findings Of Fact Petitioners’ foster home is a private agency foster home licensed by Respondent to provide substitute care for children in foster care. On or about August 24, 2000, a report was made to the Florida Abuse Registry indicating that a child, A.C., who suffers from Downs Syndrome and who resided in Petitioners’ care at the time, had suffered a burn mark that was three to four inches long. The burn reportedly appeared to be from an iron. Pursuant to this report, Respondent’s Child Protective Investigator commenced an investigation of the matter on August 24, 2000. During the course of the August 24, 2000, investigation, Respondent’s investigator observed the burn on A.C.’s arm. Testimony of the investigator establishes the presence of such a burn on A.C.’s arm at the time. That testimony is corroborated by photographs in Respondent’s Composite Exhibit No. 3 and fairly and accurately depicts A.C.’s burned arm as it appeared on August 24, 2001. Petitioner Carol Golden, when asked about the situation, stated that she was unaware of the burn on A.C.’s right arm until the matter was brought to her attention by the investigation which commenced on August 24, 2000, following the discovery of the child's injury by school personnel. Interviews with other children in the home revealed that another child was ironing clothes on the evening of August 23, 2000, and left the iron unattended momentarily, during which time A.C. burned his arm on the iron. Respondent’s investigator referred A.C. to the Child Protection Team for an examination of his injury. Subsequently, A.C. was removed from Petitioners’ foster home after the findings of the Child Protection Team revealed that the child’s injury was indicative of inadequate supervision. Respondent’s investigator concluded her investigation and closed the case, Abuse Report 2000-133049, with verified findings for lack of supervision and failure to seek medical attention for A.C. Subsequently, Petitioners’ foster care license was revoked because of the verified findings of neglect and inadequate supervision found in Abuse Report 2000-133049. Medical examination of A.C.’s injury, as it appeared on August 24, 2000, reveals that the injury was on the child’s right arm; was five by eight centimeters in size; and was a charred burn in the shape of an iron with the circles for the steam holes clearly visible. The burn was in such a place, and of such a size, that any caretaker responsible for the bathing and clothing of A.C. should have seen the injury. Attempts by Respondent’s employees to conduct an assessment of A.C. were not successful. He was friendly and interacted well; however, he only pointed to his injury and could not communicate how it happened.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record, and the testimony of the witnesses, it is, therefore, RECOMMENDED: That a Final Order be entered confirming the revocation of Petitioner’s foster license. DONE AND ENTERED this 9th day of January, 2002, in Tallahassee, Leon County, Florida. DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of January, 2002. COPIES FURNISHED: Charles Golden Carol Golden 7939 Denham Road Jacksonville, Florida 32208 Robin Whipple-Hunter, Esquire Department of Children and Family Services Post Office Box 2417 Jacksonville, Florida 32211 Peggy Sanford, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
The Issue The issue in this case is whether Petitioners should be issued a family foster home license.
Findings Of Fact Based upon the testimony, exhibits, and stipulated facts in the Joint Stipulation, the following Findings of Fact are made: Parties and Process Petitioners, who are husband and wife, submitted an application for licensure as a family foster home. Although this was an application for initial licensure, Petitioners were previously licensed as a foster home from August 2013 to October 2019.1 The Department is the state agency responsible for licensing foster care parents and foster homes, pursuant to section 409.175, Florida Statutes, and Florida Administrative Code Chapter 65C-45. Petitioners voluntarily relinquished their foster home license on or about October 28, 2019, around the time two female foster children, S.W. and H.C.S., were removed from their care. It is unclear whether the children were removed because of an abuse investigation related to H.C.S., or whether they were removed because Petitioners closed their home to foster children. Regardless, Mrs. Gilio testified that they let their license lapse because they needed a break after fostering H.C.S. The Department administers foster care licensing by contracting with third-party private entities. In Circuit 13, where Petitioners are located, the Department contracted with Eckerd Community Alternatives, doing business as Eckerd Connects (Eckerd), to be the agency responsible for facilitating foster care licensing. Eckerd has subcontracted with Children's Home Network (CHN) to facilitate foster care licensing. 1 Petitioners had previously been denied a foster care license in 2009. At the time relevant to Petitioners, the Department used the "attestation" model of foster home licensing. In this model, a private licensing agency with whom the Department has contracted will conduct a home study on the foster home applicants and attest to the applicants' fitness to be licensed. The Department does not have the discretion to deny the license once the licensing agency has attested to the appropriateness of the applicants, except if they have been named as caregivers in three or more abuse reports within five years. If there are such abuse reports, the Department is required to review those reports and make a final decision regarding the application. There is no requirement that the reports result in a finding of actual abuse for them to be reviewed by the Department.2 Although it is unclear when Petitioners submitted their application for the foster care license in this case, sometime in late 2019, CHN conducted and compiled a Unified Home Study (home study), which included Petitioners' background screening; previous reports of abuse, abandonment, or neglect involving the applicants, and references from all adult children. The home study was reviewed at a meeting on December 19, 2019, by Eckerd, through the Committee. The Committee considered the application, home study, and licensing packet and heard from various agency staff. Petitioners were also allowed to voice comments and concerns at this meeting. Had the Committee approved the application, it would have been sent to the Department along with an attestation that stated the foster home meets all requirements for licensure and a foster home license is issued by the Department. However, the Committee unanimously voted not to recommend approval of a foster home license to Petitioners. 2 The categories of findings for an abuse report are "no indicator," "not substantiated," and "verified." "No indicator" means there was no credible evidence to support a determination of abuse. "Not substantiated" means there is evidence, but it does not meet the standard of being a preponderance to support that a specific harm is the result of abuse. "Verified" means that there is a preponderance of credible evidence which results in a determination that a specific harm was a result of abuse. Frank Prado, Suncoast Regional Managing Director for the Department, ultimately decided to deny Petitioners' application for a family foster home license due to their prior parenting experiences, the multiple abuse reports regarding their home, and the recommendation of the Committee. Mr. Prado expressed concern about the nature of the abuse reports and Petitioners' admission that they used corporal punishment on a child they adopted from the foster care system in the presence of other foster children. Petitioners' Parenting History Petitioners have seven children: one is the biological son of Mr. Gilio; another is the biological son of Mrs. Gilio; and five were adopted through the foster care system in Florida. Of these seven children, six are now adults. Three of the adopted children, Jay, Sean, and Jameson, are biological brothers who Petitioners adopted in 2001. Shawna, who was adopted around 2003, is the only adopted daughter. The Petitioners' one minor child, H.G., is a nine-year-old boy and the only child who resides in their home. H.G. suffers from oppositional defiance disorder. Petitioners admitted they adopted Shawna after there had been allegations of inappropriate behavior made against Jay, by a young girl who lived next door to Petitioners. Later, while they were living with Petitioners, Jay, Sean, and Jameson were arrested for sexually abusing Shawna at different times. As a result, one or more of the sons were court-ordered to not be around Shawna, and the other brothers were required to undergo treatment and never returned to Petitioners' home. During the hearing, both Petitioners seem to blame Shawna, who was nine years old when the sexual abuse by Jay in their home allegedly began, for disrupting their home. They accused her of being "not remorseful" and "highly sexualized." Regarding the abuse by Sean and Jameson, which occurred when Shawna was approximately 12 years old, Mr. Gilio stated Shawna thought it was okay to have sex with boys, and it was "hard to watch every minute of the day if they're, you know, having sex." When Shawna was about 19 years old, she filed a "Petition for Injunction for Protection Against Domestic Violence" against Mr. Gilio in circuit court. The Petition outlined allegations of past sexual comments and inappropriate disciplinary behavior from 2007 to 2012, while she lived with Petitioners. Mr. Gilio denied at the hearing having any knowledge about the Petition against him, but admitted he made comments about Shawna's breasts. As part of the application and home study process, the CHN collected references from Petitioners' former foster children and adult children. Shawna (Petitioners' only adopted daughter) gave them a negative reference and specifically stated she would not want female foster children to live with Petitioners. Reports of Abuse Petitioners were involved in 24 abuse reports during their time of licensure between 2013 and 2019. During the past five years, Petitioners were named as either alleged perpetrators or caregivers responsible in eight reports that were made to the Florida Child Abuse Hotline (Hotline). Of those eight reports, five of them named Mr. Gilio as the alleged perpetrator causing a physical injury, one report named Mr. Gilio as the caregiver responsible for a burn on a foster child, and one report named Mr. Gilio as an alleged perpetrator of sexual abuse against a foster child. Mrs. Gilio was named as an alleged perpetrator of asphyxiation as to a foster child. Seven of the reports in the last five years against Petitioners were closed with no indicators of abuse. One of the abuse reports was closed with a "not substantiated" finding of physical injury. In this report, Mr. Gilio was the alleged perpetrator and the victim was H.G., Petitioners' minor adopted son. Additionally, after Petitioners let their foster license lapse in October 2019, a subsequent report was made against Mr. Gilio for improper contact with a former foster daughter. This incident was discussed at the Committee meeting, but it was unclear if this allegation was ever investigated. Corporal Punishment According to the Department's rules, discussed below, foster parents are forbidden to engage in corporal punishments of any kind. In 2019, there were two reports alleging Mr. Gilio of causing physical injury by corporal punishment on H.G. At the time, there were other foster children in the household. Technically, Mr. Gilio was allowed to use corporal punishment on H.G. because he was no longer a foster child and had been adopted from foster care. If a parent uses corporal punishment on a child, there can be no findings of abuse unless the child suffered temporary or permanent disfigurement. However, foster care providers are not permitted to use corporal punishment. More than one witness at the hearing had concerns about the use of corporal punishment against H.G. because of his operational defiance disorder and because other foster children (who may have been victims of physical abuse) were in the household. Brendale Perkins, who is a foster parent herself and serves on the Hillsborough County Family Partnership Alliance, an organization that supports licensed foster parents, testified she witnessed Mr. Gilio treating a foster child in his care roughly. At the time, she was concerned because this was not the way children in foster care (who may have previously been victims of abuse) should be treated. She did not, however, report it to any authorities. The Department established through testimony that the policy against using corporal punishment is taught to all potential foster families. Mr. Gilio, however, denied ever being instructed not to use corporal punishment against foster children or while foster children were in the home. He also claimed that H.G.'s therapist had never recommended any specific punishment techniques. The undersigned finds Mr. Gilio's testimony not credible. Cooperation with Fostering Partners The Department established that decisions regarding foster children are made within a "system of care" which includes input from case managers, guardian ad litem (GAL), and support service providers. The relationship between Petitioners and others working as part of this system during the time of fostering was not ideal; it was described by witnesses as "tense" and "disgruntled." One witness, a supervisor at CHN, testified Mr. Gilio was not receptive or flexible when partnering with other agencies, and was not always open to providing information when questioned. As an example, Petitioners fired a therapist without consulting with the CHN staff or the GAL for the child. At the final hearing, Mr. Gilio continued to claim he did nothing wrong by not consulting with others in the system regarding this decision. Kristin Edwardson, a child protection investigator for the Hillsborough County Sheriff's Office, was tasked with investigating the reports of abuse and neglect against Petitioners that had been reported to the Hotline. She testified she was concerned with the level of cooperation they provided her and other investigators. Although they ultimately would cooperate, Petitioners made it difficult for the investigators and would often "push back" and make the situation more stressful. She described Mr. Gilio as being disrespectful, belittling, and dismissive of her. Licensing Review Committee On December 19, 2020, the Committee, made up of eight individuals, was convened to review Petitioners' application for a foster home license. When determining whether a family should receive a foster home license, the Committee is to evaluate the applicants' background, parenting experience, references from community partners, and the family's openness and willingness to partner. Sheila DelCastillo, a regional trainer with the GAL program, was a Committee member. She had prior knowledge of Petitioners from a report that a foster child's room in Petitioners' home smelled strongly of urine during a home visit and that GAL staff had found a prescription bottle beside the child’s bed that belonged to Mr. Gilio. With regards to Petitioners' application, she read the licensing review packet and home study that contained numerous abuse reports. Ms. DelCastillo was concerned about the 24 abuse reports Petitioners’ received during their time of licensure, the negative reference from Shawna, their use of corporal punishment on H.G., and Petitioners' downplaying of the events that led to multiple abuse reports. Michelle Costley, a licensing director with CHN in charge of level 2 traditional foster homes, also served on the Committee. Ms. Costley has 14 years of experience, with seven of those years spent in foster care licensing. As director of licensing, Ms. Costley was concerned about the number of abuse reports received regarding Petitioners; Mr. Gilio's inability to be open and flexible when working in partnership with other agencies; and the needs of Petitioners' child, H.G. She was also concerned about Petitioners' decision to fire a therapist of a foster child without consulting the GAL or the other individuals involved with that child. Regarding the alleged abuse, Ms. Costley was concerned that most of the reports regarding Petitioners involved allegations of physical abuse, inappropriate touch of a sexual nature, or sexual abuse, with most alleged victims being younger than eight years old. She explained that even though these reports could not be "verified," these types of allegations are harder to establish because testimony by children of that age often is unreliable and there usually must be evidence of physical injury, which no longer is present by the time the alleged abuse is investigated. Ms. Perkins also served on the Committee. Ms. Perkins served as a foster parent mentor, working with foster parents to help them build co- parenting strategies and navigate the system of care. She has been a licensed foster parent for 13 years and has adopted 11 children from foster care. As stated earlier, she was familiar with Petitioners from the Hillsborough County Family Partnership Alliance meetings. Ms. Perkins was concerned with the number of abuse reports with similar allegations, but different victims. She also discussed Petitioners' use of corporal punishment, noting that they could have been using verbal de-escalation methods instead of corporal punishment due to the traumatic histories of many foster care children. Ms. Edwardson also served on the Committee. In addition to her personal interactions with Petitioners, Ms. Edwardson was concerned about the totality of the information presented to the Committee regarding the abuse reports and Mr. Gilio's lack of cooperation. She noted that although they were not substantiated, the number and nature of the reports related to young children were of concern. Based on the Committee notes and transcript of the meeting, Petitioners were allowed to respond to the Committee's questions at the December 2019 meeting. They argued that none of the abuse reports were proven true and any injuries were not their fault. They seemed more concerned about who made the abuse reports and why the abuse reports were called in than whether the foster children were protected in their care. For example, although Mr. Gilio admitted to hitting H.G. with a stick twice as big as a pencil, he denied any bruising was caused by the stick. A report of a burn on another child was explained by Mr. Gilio as an accident that occurred while he was teaching her how to iron; he could not understand why this was reported as possible abuse. Ms. Gilio explained that H.C.S. was a very active child which resulted in her needing stitches and requiring restraint. After hearing from Petitioners, the Committee members discussed their concerns that Petitioners were not forthcoming about the various abuse incidents, and would not take responsibility for any of the injuries or issues raised by the abuse reports. All eight members voted to not move Petitioners' application forward.
Recommendation Based on 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 Families denying a family foster home license to Petitioners, Mary and James Gilio. DONE AND ENTERED this 9th day of November, 2020, in Tallahassee, Leon County, Florida. S HETAL DESAI 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 9th day of November, 2020. COPIES FURNISHED: Anthony Duran, Esquire Tison Law Group 9312 North Armenia Avenue Tampa, Florida 33612 (eServed) Deanne Cherisse Fields, Esquire Department of Children and Families 9393 North Florida Avenue Tampa, Florida 33612 (eServed) Lacey Kantor, Esquire Department of Children and Families Building 2, Room 204Z 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed) Javier A. Enriquez, General Counsel Department of Children and Families Building 2, Room 204F 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed) Chad Poppell, Secretary Department of Children and Families Building 1, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed)
The Issue The central issue in this case is whether the Petitioners are entitled to the renewal of their foster care license.
Findings Of Fact At all times material to this case, the Petitioners operated a shelter foster home in Dade County, Florida, pursuant to a license that was issued by the Department. Mr. Ezewike investigated allegations of neglect at the Petitioners' home. According to Mr. Ezewike, children residing at the home were left without adult supervision. Such children ranged in ages from a few months to teenager. Mr. Welch investigated allegations of verbal abuse against Petitioners. The report of these allegations was closed without classification. Thus the Petitioners were not identified as the perpetrators of verbal abuse. According to Mr. Blum, who also visited the home, children residing with the Petitioners were left without adult supervision. Mr. Blum observed that the interior of the house was dirty and messy. His report concluded that there were some indications of conditions hazardous to health as a result of the unkept home. Mr. Blum further observed that a refrigerator at the Grice home was encircled by a chain with a lock which prevented it from being opened. Mr. Blum also observed and overheard an interaction between Mr. Grice and some of the foster children. According to Mr. Blum, Mr. Grice used harsh and inappropriate language with the children. Jackie Hodge, supervisor of the licensing unit, received a report from another worker responsible for supervising the Grice foster home. Such report cited Mr. Grice for inappropriate and harsh language. According to Ms. Hodge, licensing standards, including the quality of care and supervision provided by foster parents, must be a part of the evaluation to determine the suitability of a home during a relicensing review. According to Ms. Hodge, the Department does not permit foster parents to be verbally abusive, including harsh or inappropriate language, with the children in their care. Ms. Hodge further explained that the condition of, and cleanliness of, the home are also part of a relicensing evaluation. Based upon the Department's practice, the failure to meet any of the licensing standards is grounds for denying a renewal of license. Ms. Hodge recommended that the Petitioners' home not be relicensed. Petitioners were timely notified of the Department's denial and timely requested an administrative review.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Department of Health and Rehabilitative Services enter a final order denying Petitioners' request for licensure renewal. DONE AND RECOMMENDED this 6th day of January, 1994, in Tallahassee, Leon County, Florida. Joyous D. Parrish 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 6th day of January, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-4951 Rulings on the proposed findings of fact submitted by the Petitioners: 1. None submitted. Rulings on the proposed findings of fact submitted by the Respondent: 1. Paragraphs 1 through 14 are accepted. COPIES FURNISHED: Hilda Fluriach District 11 Legal Office Department of Health and Rehabilitative Services 401 N.W. 2nd Avenue, N-1014 Miami, Florida 33128 Willie and Geraldine Grice 18830 N.W. 43rd Avenue Carol City, Florida 33055 Kim Tucker General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Robert L. Powell Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Bonita Jones-Peabody The Executive Building 3000 Biscayne Boulevard Suite 300 Miami, Florida 33137
The Issue The issue is whether Respondent should be subject to administrative penalties, up to and including revocation of its group home license, for non-compliance with the residential facility requirements of Chapter 393, Florida Statutes (2007).
Findings Of Fact Petitioner is the state agency charged with regulating the licensing and operation of foster care facilities, group home facilities, and residential habilitation centers. Respondent holds a group home facility license. The group home is located in Lake City, Florida. Ms. Amanda Houston is the operator of the group home. Ms. Houston is responsible in that capacity for compliance with statutes and rules relating to residential facilities. At all times material here, A.D. was a vulnerable 17-year-old female who resided at the group home. A.D. is mentally retarded and has significant behavior issues. Ms. Nigeria Taiwan Wills was a trusted employee of the group home for four or five years. On October 8, 2008, Ms. Wills was responsible for the supervision and care of the group home's disabled residents. On October 8, 2008, Ms. Wills began her shift at 2:00 p.m. and worked until 8:00 p.m. During at least part of that time, Ms. Wills was the only staff member present in the home. On October 8, 2007, while under the supervision of Ms. Wills, A.D. suffered significant injury to her buttock area. The next morning, Ms. Houston arrived at the group home around 6:30 a.m. Ms. Houston woke A.D. who dressed herself. Ms. Houston gave A.D. her medications. Ms. Houston did not notice any difference in A.D.'s demeanor. A.D. seemed normal in every way. The group home had four residents. Three of the clients, including A.D., rode a bus to school. On October 9, 2009, the bus arrived to pick up the clients at 8:10 a.m. It left the facility at 8:20 a.m. Ms. Houston was not aware of A.D.'s injury before the bus picked her up. On October 9, 2008, Ms. Wills visited the group home around 11:00 a.m. to pick up a piece of paper that she had left there the night before. While at the group home, Ms. Wills casually mentioned to Ms. Houston that she had an incident with A.D. the night before, that it was no big deal, and that she would tell Ms. Houston about it when she returned to work her shift that evening. Ms. Wills then left the group home. Ms. Wills did not have a home phone. All supervisory employees of the group home are trained to keep notes during every shift to record chronologically all events occurring at the group home. If an injury of any kind occurs, an employee is supposed to immediately fill out an incident report and call Ms. Houston. Ms. Houston knew that Ms. Wills had not filled out an incident report the night before. Ms. Houston read Ms. Wills' notes from the night before and, finding no reference to an incident with A.D., mistakenly assumed that whatever had happened truly was no big deal. This was not an unreasonable conclusion given Ms. Wills' long-term employment with no complaints and A.D.'s history of stealing and other behavior problems. In the mean time, Ms. Lanitra Sapp, a child protective investigator for the Department of Children and Family Services, received a call from A.D.'s school. Ms. Sapp subsequently visited the school, interviewed A.D., and observed bruising to her buttocks and upper thigh. Ms. Sapp concluded that the bruising was consistent with physical abuse. Ms. Sapp then took A.D. to her office. When A.D. did not get off the bus after school, Ms. Houston called the school, A.D.'s mother, and A.D.'s waiver support coordinator. Ms. Houston was unable to locate A.D. until she received a call from Ms. Sapp, asking Ms. Houston to go to Ms. Sapp's office. At Ms. Sapp's office, Ms. Houston and her husband, Adam Houston, first learned about A.D.'s injury. Mr. and Mrs. Houston were shocked at the degree of A.D.'s injury as reflected in photographs. After a short meeting, A.D. voluntarily rode with the Houstons to the group home. Ms. Sapp followed in her car. When the Houstons and Ms. Sapp arrived at the group home, the police were already there. Ms. Wills was also there. Ms. Houston left A.D. in the car with Mr. Houston before going into the group home. Ms. Wills talked to the police and Ms. Sapp in separate interviews. At some point, Ms. Wills told the police that she had spoken to Ms. Houston about the incident that morning. Ms. Houston admitted to the police and Ms. Sapp that Ms. Wills had made a reference to an incident that morning. Ms. Wills never admitted that she spanked A.D. with a belt. Ms. Houston placed Ms. Wills on administrative leave just before the police handcuffed her and took her to jail. Immediately thereafter, Ms. Houston prepared and sent an official incident report to Petitioner and A.D.'s waiver support coordinator. A.D. wanted to remain at the group home. Her mother and waiver support coordinator agreed. A.D. remained in that environment until March 2008, when Respondent lost its status as a Medicaid waiver provider. Ms. Houston never let Ms. Wills return to the group home. Instead, Ms. Houston paid Ms. Wills for one week of earned wages and one week of vacation time. This was the final pay check for Ms. Wills. Within days, Ms. Houston took A.D. to see her pediatrician for a medical evaluation. A week or so later, Ms. Sapp took A.D. for an evaluation by the Department of Children and Family Services child protection team. The Department of Children and Family Services subsequently issued a report containing verified findings of failure to protect against Mr. and Ms. Houston and maltreatment/physical injury against Ms. Wills.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order finding that Respondent's license is not subject to discipline for failure to protect. DONE AND ENTERED this 29th day of October, 2008, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 29th day of October, 2008. COPIES FURNISHED: Julie Waldman, Esquire Agency for Persons with Disabilities 1621 Northeast Waldo Road Gainesville, Florida 32609 Lloyd E. Peterson, Jr., Esquire 905 Southwest Baya Drive Lake City, Florida 32025 John Newton, General Counsel Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 James DeBeaugrine, Executive Director Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950
