The Issue Whether Petitioner's application to become adoptive parents with the Department should be granted.
Findings Of Fact Beginning in November 1993, Petitioners were foster parents licensed by the Department. They stopped fostering in 1997. On March 25, 1997, Petitioners submitted an application to become adoptive parents through the Department. On August 22, 1997, an adoptive home study was completed by Ms. Townsend, supervisor of adoption and out-of-home care for the Department and adoption counselor for Petitioners. Among other things, the home study consisted of an interview with Petitioners and a review of Petitioners' history as foster parents. Ms. Townsend testified that when asked, Petitioners said they wanted to adopt a little girl under four. However, because of the age desired, such a child is not a special needs child. After completion of her review, Ms. Townsend identified the following needs in Petitioners: Appear to allow emotions to influence their judgment. Appear to be inflexible when presented an opinion different from their own where children are concerned. Seem to have unrealistic "love conquers all" attitude about special needs children. Appear to have trouble defining boundaries in their relationships with children. Need to develop more structure and objectivity when dealing with special needs children. It appears that they may, unintentionally, encourage the dependence of children on them in an effort to demonstrate their love. May need to examine more closely their motivation and apparent need to have a child. Need to develop a more positive working relationship with the Department. The needs referenced above were based on the interviews with Petitioners and their history as foster parents. Ms. Townsend also identified several strengths that Petitioners had as adoptive applicants. These strengths were: Family has knowledge and experience with special needs children. Committed and sincere desire to adopt. Willingness to take an active role in the lives of children. Demonstrated ability to accept children regardless of their problems. Provide assurance to children that they are loved and cared about. Open, verbal, and demonstrative people. Actively pursue what is in the best interest of children. Stable marriage of twenty-five years. Stable and well kept home with space available for expanding the family. Stable and more than adequate employment and income. Based upon her assessment of Petitioners, Ms. Townsend felt Petitioners' deficiencies outweighed their strengths. She recommended denial of Petitioners' application and that they pursue adoption of a non-special needs child. Per Department procedure, an adoptive applicant review committee was convened to consider Petitioners' application. The committee consisted of Ms. Winters, operations management specialist; chairperson, Mary Alegretti; Diane Rickman; Sheila Sinkfield; and Donna Veline. The committee report attached the foster parent adoptive home study, the foster parent re-licensing study, the original foster home study, a memorandum from Tom Waltz, foster child licensing counselor, dated January 8, 1997, a memorandum from Tom Waltz dated August 19, 1994, and a memorandum from Michele Shaner, foster care counselor, dated October 5, 1994, and the individual recommendations of all the committee members. The attachments to the committee's report identified difficulties Petitioners had concerning foster children previously in their care. Those documents related specific concerns based on incidents regarding foster children J.J., H.J., and D.C. The committee identified the following areas of concern for Petitioners: They really do not want to adopt a special needs child. When the adoption counselor pointed out to them on more than one occasion that the type of child they were describing was not special needs, they then said they would consider a sibling group, as long as one of the siblings was a little girl. It appears they have had problems in establishing appropriate parent-child relationships with appropriate boundaries. R.R. and P.R. did not respond appropriately when a foster child in their home was on runaway status; they withheld information from the Department concerning her possible whereabouts. Based on those concerns, the committee unanimously recommended denial of Petitioners' application to become adoptive parents. District legal counsel and the district administrator concurred with that recommendation. Petitioners were notified of the denial. The denial was based upon an evaluation of Petitioners' capacity for parenthood pursuant to the Department's service manual, HRS manual 175-16. The denial letter only cited Petitioners' demonstrated problem in establishing appropriate parent-child relationships with appropriate boundaries. Parenting a special needs child is more complicated and demanding than parenting a child without special needs. For the most part, special needs children come to the Department after they have been removed from or abandoned by the parents or other guardian. They often come from abusive or neglectful homes. Many special needs children have emotional and behavioral problems. The various problems a child may have differ with each child. Generally, special needs children, and probably all children, need clear and consistent boundaries with enforced structure in their daily lives. The required amount of boundaries and structure will differ from child to child. Each child's individual problems must be dealt with in a consistent manner. In fact, the Riches are very familiar with the varying problems and difficulties associated with special needs children and have dealt with each child they fostered in appropriate ways. Importantly, at no point in this review process was a specific child being considered for adoption. Because there is no specific child's needs under consideration, this case does not encompass whether a specific child would be a good adoptive match with Petitioners. Additionally because there is no specific child's needs under consideration, whether Petitioners could theoretically meet the theoretical needs of any and all special needs children is not the issue in this case. This case only encompasses whether Petitioners demonstrate the qualities expected of good parents. Ronnie Rich and his wife Pamela Rich have been married for 29 years. Mr. Rich has been employed with the Pensacola newspaper since 1982. He often works at night. Although Petitioners never ruled out the possibility that Pam Rich might become pregnant, they had discussed adoption from the very start of their relationship. They both felt there were too many kids in the world already who needed somebody. The Riches are very family oriented and participate in their church and church-sponsored activities. Ms. Rich is politically active in various social causes. They are somewhat "counter-culturish." Neither Ms. Rich's activism, nor the Riches' religious views have been pushed on any foster child in their care. Both Riches are very caring individuals. The Riches became interested in fostering because of an incident that occurred in 1983 with a young child who lived behind them. The child eventually ended up in protective placement. During the process, the Riches met with Janice Jeffcoat who performed the investigation concerning their neighbor. Later they decided to become foster parents with the intention of having the neighbor's child placed with them. For reasons not related here, the placement did not occur. Once the Riches began fostering children, they found that they had a knack with the kids they were fostering. At the time they decided to adopt a special needs child they had had a few years experience with special needs children. The Riches recognized that special needs children can be the hardest children to care for. Petitioners' first foster child was H.J, a 15-year-old female child. H.J. was known as a difficult child to place anywhere. She was particularly difficult for new and inexperienced foster parents. Petitioners describe H.J. as "a shocker." H.J. was known to say things to people just to see what kind of rise she could get from them. She would lie down in the hallway as if she were dead when someone opened the front door. She once told a dinner guest, Reverend Hawkins, that she was part of a group that sacrificed animals. H.J. had a history of violence with her step-mother and with her brother. The family had several knock-down-dragout fights, involving serious physical violence. H.J. had serious emotional and mental health problems. She often tantrumed, lost control of her behavior, injured herself, damaged property, and verbally abused others. This behavior was exhibited during her stay at the Riches. None-the-less, H.J. stayed with them for 5 months. During H.J.'s time at the Riches' home, she was seeing Chris Guy in therapy. The Riches supported and participated in that therapy. In fact, H.J. made progress in controlling herself while under the care of the Riches. Her behavior deteriorated when she learned that she was going to be placed with her uncle in Alabama. Finally she was removed from the Riches' home when one night she became uncontrollable, self-injurious, destructive, and threatening toward Ms. Rich. She ended up in the hospital, where the Riches stayed with her until three o'clock in the morning. After a short placement with another foster home, H.J. was placed with her uncle in Alabama. The Department's concerns as to H.J., were that Pam Rich had taken H.J. to hear a band at a restaurant where alcohol was served; used the term "jail bait"; allegedly encouraged H.J.'s interest in the occult; allegedly encouraged H.J. to explore her lesbian feelings; and stated a favorable opinion on the legalization of marijuana. H.J. did not testify at the hearing regarding the validity of the Department's concerns or her perception of the Riches' behavior or lifestyle. Moreover, all of these concerns were investigated by the Department with subsequent recommendations for relicensure as foster parents. During the course of her stay with the Riches, H.J. wanted to go see a band that was playing at a popular restaurant in town. Ms. Rich agreed that H.J. could go to the performance as long as Ms. Rich accompanied her. While there Ms. Rich drank one glass of wine in the presence of H.J. During a break, an older man with the band began to "hit" on H.J. in an attempt to pick her up. The man's English was not very good. In an effort to quickly terminate the man's pursuit, Ms. Rich told the man that he needed to leave because H.J. was "jail bait." She used the term to make the man understand his attention was not wanted and that he should go away. The man promptly left. Ms. Rich did not intend the term "jail bait" to be derogatory to H.J. She intended to use the term to communicate very quickly to the man in a language he could understand that serious consequences would ensue if he continued to pursue H.J. There was no evidence that H.J. found the remark offensive or derogatory. There was also no evidence that H.J. needed to be protected from an adult appropriately having a glass of wine. At some point during her stay with the Riches, H.J. elected to participate in the Riches' church and some of its church-sponsored functions. Ms. Rich and H.J. attended a chaperoned youth conference sponsored by the church in south Florida. Unknown to Ms. Rich, H.J. was "hit on" by another girl at the youth conference who allegedly was gay. Upon returning home, H.J. told Ms. Rich about the incident. Ms. Rich asked H.J. if the incident bothered her. H.J. said that it didn't. Ms. Rich told H.J. about a triangular pendant she wore that indicated that it is okay that another person is gay, but that the wearer of the pendant is not gay. The pendant is known as a PFLAG pendant. PFLAG stands for Parents and Friends of Lesbians and Gays. Afterward, H.J. on her own bought a PFLAG pendant at the Crystal Center where she took yoga classes. Additionally, at some point, H.J. asked Ms. Rich how she would react if she told her she was gay. Ms. Rich told H.J. that it would be okay. H.J. then informed Ms. Rich that she was not gay; Ms. Rich told H.J. that not being gay was okay too. Ms. Rich only had these discussions at H.J.'s prompting. Ms. Rich did not initiate H.J.'s discussions about homosexuality. She did not encourage H.J. to purchase a PFLAG pendant. On another occasion, after hearing a song by a popular group about legalizing marijuana, H.J. inquired about the Riches' position on the subject. The Riches explained that while it might be a sound policy to legalize marijuana and treat it more like alcohol, alcohol and marijuana were illegal substances for a teenager and were strictly prohibited in their family. H.J. then changed the subject and moved on to other things. There was no evidence that H.J.'s parental needs included a boundary excluding honest discussion of homosexuality or marijuana when H.J. raised such. Teenagers will raise controversial issues with the adults who are significant in the teenagers life. The Riches' responses were not inappropriate. Again these facts do not support the conclusion that either Rich demonstrated an inability to set appropriate boundaries for a special needs child. Finally, H.J. had some interest in the occult. The evidence did not show that this interest was serious, but was more of the behavior H.J. used to shock others. When H.J. came to the Riches' she brought a voodoo doll with her. She stapled it to the wall and never moved the doll from that spot. The Riches never saw her use the doll for voodoo purposes. At some point, H.J., like other teenagers, wanted a Ouija board. Mr. Rich purchased a Ouija board for H.J. He did not find it unusual to buy H.J. a Ouija board because he had had a Ouija board when he was growing up. He saw the board as a game and did not associate the board with the occult. The evidence did not show that the Riches used crystals and chanted. The evidence did not show that the Riches encouraged H.J. to use crystals and chant. The evidence did not demonstrate that any of this activity was a necessary boundary which H.J. required to be maintained. Again these facts do not establish that the Riches do not have the ability to set appropriate boundaries for children. After H.J., two sisters from Santa Rosa County were placed with Petitioners. Petitioners were told that nobody in Escambia or Santa Rosa County would take them in. The sisters had been in foster care prior to this placement and an older sister had been removed from the home permanently. The girls' father had a history of violence. The oldest of the two girls placed with Petitioners made accusations of inappropriate touching by the father. The girls had problems as to how they related to each other and discussed things. During the placement, Petitioners, who live in Escambia County, traveled with the girls to and from appointments in Milton, Okaloosa County, Florida; they also attended court hearings with them. The girls were in their care for a few months. No Department concerns were noted for this placement. The next placement to Petitioners' home was K. She came to Petitioners from Turning Point. Turning Point is a facility for young girls with serious behavioral problems. The facility's purpose is behavior modification. K. was a very difficult child. She would be happy and laughing one minute and the next, she would close down. During her stay with the Riches, K. was finishing the program at Turning Point. However, her mother was not prepared to take her back into her home. The Riches were a "gap period" placement between the time K. left Turning Point until her mother could make proper living arrangements with a place for K. During the placement, the Riches worked very closely with various therapists and case workers at Turning Point. Turning Point staff were sometimes in and out of Petitioners' home three or four times a week, visiting K. and holding therapy sessions. Staff would come once a week to see the Riches and to see if they had any problems. K. was reunited with her Mother. The Riches remain friends with K. and her mother and maintain contact with them. The Department did not have any concerns with this placement. After K., J.J. was placed with the Riches. Up to this time, Mr. Rich stated that they had had older female children. J.J. was 2 years, 10 months old upon her arrival at the Riches' home. She stayed with the Riches for 15 months and was 4 years old when she left. J.J.'s problems were not the same as those of the other foster children who had been placed with Petitioners. She had more serious behavioral and emotional problems. She soiled her pants, did not sleep through the night, and had nightmares. She came from a home with a tremendous amount of drugs, alcohol, and violence. Sexual abuse was not an issue with J.J. On one occasion, Mrs. Rich asked J.J. what she was looking for in the hallway. J.J. replied that she was looking for the blood. Later, the Riches learned that her mother had been beaten so severely by her father that there was blood in the hallway. J.J., at the age of three, was in therapy. J.J. improved at the Riches' home. While J.J. was in the Riches' home, it was normal for the Riches to rock J.J. to quiet her before bedtime. It was a period of time for her to stop from the rushing of the day and settle down before bedtime. Her bedtime was fairly early in the evening just after supper. The Department's concern as to J.J. was related to bathing. The child was not yet old enough to be left unsupervised in the bath tub. Therefore, someone had to watch her while she bathed. Most often, Ms. Rich was responsible for supervising J.J.'s bath. Occasionally, Ms. Rich would shower or bathe with J.J. Usually, she would keep an eye on J.J. while J.J. was in the bath tub. About once a month, Mr. Rich supervised the end of J.J.'s bathing. He would keep an eye on her from the hallway. The only time, Mr. Rich was called on to supervise J.J.'s bath was when Ms. Rich had to leave J.J. to begin cooking or take care of some other task which had to be done so that J.J. could get to bed on time. Nothing the Riches did regarding J.J.'s bath was unusual or abnormal. Clearly, given the age of J.J., the Riches acted responsibly in supervising J.J. in the bath. There was no evidence which demonstrated that such a bathing routine was harmful to J.J. or was an inappropriate boundary regarding her, especially since sexual abuse was not an issue with her. The Department came to the same conclusion when it relicensed the Riches as foster parents. Petitioners wanted to adopt J.J. after J.J.'s case worker expressed the possibility to them. However, the Riches were not kept informed of the Department's ongoing efforts to reunite J.J. with her parents. With these mixed signals about whether she would be staying with the Riches on a permanent basis or whether she would be reunified with her mother and father J.J. quickly reverted back to soiling her pants, not sleeping through the night, and having nightmares. J.J. was reunited with her parents. The Riches experienced considerable remorse over the loss of J.J. They felt department staff had misled them and cruelly raised their hopes about adoption of J.J. In October, 1996, after investigation of the above concerns, the Department found the Riches had a lot to offer its special needs children and recommended relicensure. The Riches were found to have used appropriate discipline; were committed to the children placed in their care; provided a warm, friendly, and caring environment to those foster children; and were extremely cooperative with the Department on fostering issues. Two foster care counselors thought they were above satisfactory in all areas of fostering. Before J.J. left the Riches' home, Delores Shelton, formerly known as D.C., was placed with the Riches. She was 16 years old. Beginning with her father, Delores had been passed around among various males in and out of her family. Once her father had left her with another man, he and her mother abandoned Delores and moved to California. At each move to another male who would take care of her, Delores was mentally, physically, and sexually abused. At age 15, she ended up with a man who was 26. They had a child together, but were not married. One day they had a fight. The Department was called to take Dolores and the infant child into custody. At that point, prior to placement with the Riches, Delores was moved from foster home to foster home. Delores was diagnosed with severe post-traumatic stress disorder. She also was diagnosed with a drug and alcohol problem. Drug and alcohol abuse is not uncommon for teenagers with post-traumatic stress disorder and Delores' behavior was out of control. Delores was a chronic runaway. The Riches knew Delores from a prior placement with another foster parent. They were aware of her problems. At the time of transfer to the Riches, Betsy Thomas, from the Department, told them that Delores may or may not stay the whole night. Significantly, Delores never ran away while in the care of the Riches. The Departments concerns as to Delores were that Mr. Rich had rocked Delores in a rocking chair with her in his lap, Petitioners placed her in a bed with them during an episode in which she threatened suicide, had attempted to interfere in her treatment, inappropriately kissed her in saying goodbye and failed to disclose Delores' whereabouts to the Department when she had run away. Delores and J.J. were very close. They referred to each other as sisters and shared a room. On one occasion, while Mrs. Rich was cooking dinner, and Mr. Rich was rocking J.J., Delores was sitting on the couch and started making comments such as "Well, I've never been rocked, my parents never rocked me. They never did that for me, but we do it every day for J.J., and sometimes rock J.J. more than once. But, you know, you all are all the time rocking her, but I've never been rocked." At that time, Petitioners didn't know quite how to respond to Delores' request to be rocked. Mr. Rich told Delores that they would talk about it at another time. The next day she mentioned it again. So in full view of Mrs. Rich, Mr. Rich rocked Delores for no more than five minutes. After that occurrence, Petitioners discussed the rocking of Delores and decided that an afghan and/or small quilt would be placed on Mr. Rich's lap between him and Delores. Petitioners discussed the rocking with Jean Lenhert, Delores' counselor. Ms. Lenhert agreed that it was the appropriate thing to do for Delores. Delores had regressed emotionally to a younger age, and she was seeking out affection from the people she viewed as her parents. The rocking of Delores occurred no more than a half a dozen times. The rocking helped Delores. It calmed her down and relaxed her. Mrs. Rich tried to rock Delores on one occasion but it was to painful for her since she suffers from arthritis and Delores weighed somewhere between 110 to 120 pounds. Under these circumstances, the Riches acted appropriately in handling a situation which had arisen. The Riches were aware that they did not want to encourage Delores to seek affection in inappropriate ways as she had done prior to becoming a foster child. Generally, maintenance of personal space and appropriate and limited demonstrations of affection are important for a child who has been sexually abused. These factors are the reason they sought guidance on the matter from Ms. Lehnert. Moreover, the Riches' judgment in this matter was correct since it did indeed help Delores through a regressive period. Given these circumstances, this incident does not demonstrate that Petitioners are unable to develop appropriate boundaries in a parent-child relationship. Ms. Lehnert testified that she noticed a change in Delores after she was placed with the Riches. Delores told Ms. Lenhert that she felt like she had a home with the Riches. Delores stayed at the Riches' home and quit running away. Although she continued to use drugs and alcohol, it was not as extreme a use as her use in the past. Delores was trying to get off the drugs and alcohol. The Riches participated in the therapy sessions when they were asked. They would ask to speak with Ms. Lehnert to let her know what Delores' behaviors had been that week. Such involvement was appropriate. In fact, Ms. Lehnert asked all parents, foster and biological to be so involved in a child's treatment. Ms. Lehnert testified that Petitioners did everything she asked of them. If they weren't sure of something, they would always call her. Ms. Lehnert testified that just being in Petitioners' house brought Delores a sense of security and a comfort level. When Delores was taken out of Petitioners' home, she ran away and reverted to her old behavior. Delores never felt threatened or that the Riches behaved inappropriately towards her. She reported that she felt safe in their home. Dolores testified that upon arriving at the Riches' home, they went over the rules with her. At first, she tried to break the rules to see what would happen. She stated that the Riches always talked to her about how they felt when she broke the rules. She said she later started following the rules because she felt comfortable at the Riches; she knew they wouldn't just kick her out because she broke a rule. Significantly, Dolores testified that until she arrived at the Riches' home, she never felt a sense of security in any home. She stated that the Riches showed that they cared. They cared about her going to counseling and getting help to get her life together. She testified that in other homes she was not cared about but just there for the money. Dolores testified that the Riches treated her like a member of their family. To this day she calls them mom and dad. She considers them her real parents because they treat her like their daughter. Delores was very withdrawn and very untrusting when she was first placed with Petitioners. After some time, she became more trusting. Soon the Riches could count on Delores to help around the house. During her placement there was one occasion when Delores was placed in the bed between Petitioners; it was Thanksgiving weekend. Petitioners, Delores, and another foster child visited Ms. Rich's parents outside Spanish Fort, Alabama. After some time there, Petitioners noticed Delores appeared to be stoned. Petitioners discovered that Delores had gotten into Ms. Rich's mother's medicine cabinet. She had found an old Valium prescription and had taken some of the pills. Delores was caught trying to break into Ms. Rich's traveling case where she kept her arthritis medication. She also had tried to get into Ms. Rich's father's medication used for his heart condition. Delores clearly needed some professional help. Petitioners did not want to take Delores to an Alabama hospital because they had learned from the MAPP class that you should always avoid getting another Department involved if necessary. Baptist Hospital in Pensacola was the closest hospital known to the Riches, so they took Delores there. Upon their arrival and assessment of Delores, the medical staff told the Riches Delores did not meet the criteria to be Baker-acted. She was sent home with the Riches. Petitioners drove home and called Les Chambers and Betsy Thomas two foster care counselors. Neither answered and the Riches left messages on their answering machines. Mr. Rich drove back to Spanish Fort to collect their things and retrieve the other foster child whom they left with Ms. Rich's sister, a special education teacher. The trip took approximately 4 1/2 hours. When he returned, the other child was put to bed. Delores was manic. She was walking in circles. Delores had told Ms. Rich that she knew how to commit suicide by slicing her wrists. She said she would show Ms. Rich how it was done, so Delores drew a streak with a pen from her wrist to her elbow. Ms. Rich stated that prior to that, Delores' suicide attempts had been scratches, laterally across her wrist. This was the first time she showed the "correct" way to slice her wrists in order to commit suicide. At some point, Delores walked into the kitchen. Ms. Rich realized that Delores was going to get a knife. Mrs. Rich ran to the kitchen and grabbed Delores' wrist as she was grabbing for a knife. Petitioners were very concerned and frightened that Delores would try to kill herself. It was 3 or 4 o'clock in the morning, and they were "dead on their feet." They had heard nothing from anybody, and were at a complete loss as to what they should do. The Riches feared they would fall asleep and Delores would kill herself. They were afraid that if they put her to bed in another room she would kill herself. These fears were legitimate. The decision was made that the safest place for Delores was in the bed between the Riches under the covers, with Petitioners on top of the covers. Everyone was fully dressed. Delores made it through the night. Betsy Thomas called the following afternoon and told them to tough it out. Mr. Chambers did not call until sometime the following Sunday. Eventually, Delores was admitted to the Baptist Adolescent Stress Unit at Baptist Hospital. Upon being released from the Baptist Adolescent Stress Unit, Petitioners picked Delores up. Mr. Rich picked up a birthday cake for Delores because the Riches thought she would be staying with them. Upon arriving home there was a message from Les Chambers to deliver Delores straight to FIRS. There was no reason given as to why Delores was being removed from Petitioners' home. Delores was next placed at Willow Edge's foster home. Even though Delores was no longer in the care of Petitioners, she continued to call them. She called Petitioners while at Ms. Edges' and told them she stayed up all night doing drugs with one of the other people in the home. While Delores was at Ms. Edges' home a local mall held a shopping spree for foster children on December 14, 1996. Ms. Eastlack observed Ms. Rich create a scene with Delores and her new foster mother. Ms. Rich was crying and attempting to hug and talk to Delores; Delores was ignoring Ms. Rich. Delores was angry about being placed in another foster home. Ms. Rich shook her fist in the other foster mother's face, raising her voice at the foster mother. Ms. Rich was chastising the foster mother for permitting Delores to use drugs and stay up all night at her house. Ms. Rich was upset by the reports Delores had given the Riches of her activities at her new foster home, and she was concerned for Delores. Ms. Rich eventually was encouraged to leave by someone with Ms. Rich who tugged on her arm to get her to leave. While this episode was an emotional response, one such outburst does not reflect unduly on Petitioners as potential adoptive parents. It does show how much Ms. Rich cares about the children in her life. After Ms. Edge's home, Delores was moved from several different foster placements. Eventually, she was taken to Lakeview Center and then to Meridian. Meridian is a long-term residential psychiatric care facility for children and adolescents typically between the ages of 8 to 18, to work on their behavioral and emotional problems as well as substance abuse issues. It is a voluntary, residential facility for children. Stays are typically anywhere from three months to a year. Delores, stayed at Meridian for approximately 20 days, ran away, was returned, stayed another two weeks at maximum and ran away again. During the second time Delores ran away, the Riches received a call from Delores telling them she had run away because she couldn't stand Meridian anymore. She asked that they not be mad at her. She made several telephonic contacts with Petitioners. Petitioners were very concerned for Delores' safety on the streets; they feared she would revert to her old habits of trading sex for support. They encouraged her to return to Meridian and offered to pick her up and return her to Meridian. They stressed to her to stay clean and sober. At no time, did Delores reveal her location to Petitioners. She knew if she did Petitioners would tell the Department about her location and she would be picked up. At one point, Delores was desperate for money. Mr. Rich wrote Delores a letter enclosing some money and a phone card. He mailed it to an address she had stayed at. Delores did not tell Petitioners about this location until after she had left. At the time the letter was mailed, Mr. Rich did not know where Delores was and took a chance in the hope that she would get the letter. The evidence did not demonstrate that Petitioners withheld any information on the whereabouts of Delores after she ran away from Lakeview/Meridian. They did not know where she was. Delores remained on her own for several weeks, occassionally calling the Riches. She finally agreed to turn herself in. Petitioners picked Delores up, took her to lunch, bought her some clothes, since other than what she had on, she had none. They then took her to Meridian. The Riches met with Dr. Kimberly S. Haga. Dr. Haga, Ph.D., is a licensed psychologist. She was employed at Lakeview/Meridian from November 1, 1996 through January 28, 2000. Dr. Haga met with Petitioners during a two-hour meeting. Mr. Rich thought the meeting lasted only about 45 minutes. From the beginning, the meeting was hostile. Even though she did not know the Riches and the history outlined here, the meeting opened with Dr. Haga stating that the Riches had a very dysfunctional family. Although Delores was not placed with Petitioners at the time they returned her to Meridian, the Riches asked to be a part of her treatment. Petitioners knew they had formed a relationship with Delores, and believed it would be to her benefit if they participated. Moreover, Delores had requested their participation. Whether or not Delores returned to their home was unimportant; Petitioners wanted to see Delores get appropriate treatment. Dr. Haga thought Petitioners "insisted on being a part of the treatment process" and "insisted upon dictating the terms of treatment." Dr. Haga opined that such insistence by Petitioners was inappropriate. However, Delores at the time and date viewed Petitioners as her parents. Petitioners were the only foster parents who did not have problems with Delores' running away. Dr. Haga was also not privy to the numerous conversations the Riches had with Delores about staying in treatment. One statement out of context does not show the Riches acted in a manner inappropriate for a parent-child relationship or that inappropriate boundaries had been established for Delores. Additionally, the Riches did not encourage Delores to be overly dependant on them. At the end of the meeting, Dr. Haga observed Mr. Rich embrace and kiss Delores on the lips in saying goodbye. It was not a sexual kiss. Delores did not interpret the kiss as anything other than saying goodbye to her parent. Petitioners also told Delores that she was welcome at home at any time. The Riches wanted Delores to know that they cared, that she was not being abandoned, and that she was welcome in their home when her treatment was complete. In the doctor's opinion, Petitioners did not demonstrate appropriate parenting skills. These opinions are not credited given the surrounding facts of the incidences referenced. Because Delores had taken another younger child with her each time she had run away from Meridian, Delores was eventually denied admission to Meridian upon her return. After Meridian, Delores moved from foster home to foster home about every two to three weeks. Throughout she kept in touch with the Riches. Delores told Petitioners that she wanted to come home. They explained to her that they had no standing, and that she could not come back to their home until she was 18. At that time she was legally old enough to make her own decision. Petitioners received a phone call from Delores telling them that the Department was putting her on a plane to California to live with the parents who had abused and abandoned her. She was 17 years old. While in California, Delores stayed in contact with Petitioners; she quickly was back on the streets engaging in her old behaviors. When Delores turned 18, Petitioners, at Delores' request, sent her an Amtrack ticket to Crestview, Florida. Delores returned to the Riches' home. She has since married, become sober, and lives with her husband. The last child placed with the Riches was R. She was placed with the Riches before Delores left the Riches home. R. was age six when she was placed with the Riches. She was a part of a sibling group in Protective Service care. R. had been sexually abused. R's knowledge of anatomy and love was clearly inappropriate for her age. For that reason, Petitioners followed very strict rules for her that they had not really had to follow with J.J. They never bathed R. or supervised her in the tub. Petitioners worked closely with Donna Story and Chris Guy, R.'s therapists. Mr. Rich testified that R. was such a needy child that they had to have the professional guidance of Ms. Story and Ms. Guy because what R. had been through was so devastating. R. received therapy twice a week through Ms. Story, her therapist at Bridgeway. Ms. Story would come to the Riches' home once a week, and the Riches would take R. to a session once a week. The Department had no concerns regarding this placement. Petitioners gave each child entering their home their own flashlight immediately upon their arrival because they knew they were entering a strange home. They wanted the children to have a sense of security to be able to get up and find a bathroom or simply find their way around the house in the night. The first day of a child's placement, Petitioners let each child settle in, showing them their rooms and the home. As time went on, Petitioners went over the rules of the house. They sat each child down and explained what was and was not expected of them. A lot of the information for the rules came from the MAPP class Petitioners had attended; the other rules were their personal rules. Each child knew exactly what was expected of him or her, and knew what was appropriate and inappropriate behavior. The Riches maintained an open-door policy with the Department and made sure that every case worker knew that he or she was welcome at any time. Christine Guy holds a Master's degree in counseling and psychology. As indicated earlier, Ms. Guy worked with the Riches throughout the time they were foster parents. She testified in favor of adoption by Petitioners. In 1994, the first year Petitioners were foster parents, her initial opinion about Petitioners as foster parents was not favorable to Petitioners. She stated in a letter dated October 7, 1994, "I'm unable to recommend that any additional foster children be placed with the R.R.'s regardless of age, due to their need to completely assimilate and their reluctance to work toward reunification with the biological family." The letter was prepared as a comment for the relicensure of the Riches as foster parents. However, the issue of aiding in reunification is not related to whether Petitioners would make good adoptive parents. Over the years, Ms. Guy visited Petitioners' home and found it to be clean, well-maintained and appropriate. She also knew them to establish rules for their foster children. She knew some of the rules as they pertained to the children that she was seeing that lived in their home, and found them to be very appropriate. She witnessed them grow as foster parents. She feels the Riches have acquired the skills necessary to be good foster parents. As stated by Ms. Guy in her testimony, "Having somebody that cares a whole lot is really hard to look at as anything but positive." Indeed Ms. Guy feels Petitioners would make good parents and good adoptive parents of a special needs child. Jeannie Lehnert has a Master's degree in counseling and human development. She is a licensed and nationally certified counselor. She also testified in favor of adoption by Petitioners. Ms. Lehnert has been working with emotionally and mentally handicapped children since 1993. She maintains a private practice in Crestview and Fort Walton, and also teaches for the Okaloosa-Walton Community College. Ms. Lehnert has known Petitioners since late 1995. She has observed their interaction with many of their foster children. Ms. Lehnert thought the Riches were the best foster parents in the county because they took a child into their home and into their family. They took them with all their bad behaviors and all their good behaviors. Ms. Lehnert was familiar with the rules of Petitioners for their foster children. She believed them to be strict as far as a foster child following the rules. When working with the Riches, Petitioners did everything Ms. Lehnert asked of them; if she asked them to impose certain restrictions, they would. She found Petitioners to be very open-minded to treatment and care-taking suggestions. Ms. Lehnert witnessed Petitioners' affections toward their foster children. She saw them hug them, pat them on the back, tell them they did a great job, and tell them that they cared about them. She found their affections to be very appropriate. The Riches did not cause the foster children in their care to become overly dependant on them. They accepted each child unconditionally. Petitioners did not favor one child over another child. They treated the children according to their ages and gave them privileges according to their ages; exactly the behavior a good parent would do. In fact, the evidence demonstrated that the Riches' would make good adoptive parents. They have and had the skills necessary to establish appropriate boundaries in a parent-child relationship based on the needs of a particular child and had in the past established such boundaries. Whether a particular adoptive match can be found is left to the future. Petitioners' application to become adoptive parents should be granted.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That Petitioners' application to become adoptive parents be granted. DONE AND ENTERED this 1st day of August, 2001, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 1st day of August, 2001. COPIES FURNISHED: Christopher P. Saxer, Esquire Christopher P. Saxer, P.A. 126 Eglin Parkway, Northeast Fort Walton Beach, Florida 32548-4917 Eric D. Schurger, Esquire Department of Children and Family Services 160 Governmental Center, Suite 601 Pensacola, Florida 32501 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
The Issue The issue is whether Petitioner may revoke Respondent's foster home license for her use of corporal punishment in violation of Rule 65C-13.010(1)(b)5.f, Florida Administrative Code.
Findings Of Fact Respondent has been a mother for 45 years. Five years ago, she became a foster parent because her children were grown and other children needed homes. As a foster parent, Respondent has cared for more than a dozen foster children. Due to an unrelated incident in the summer of 2001, Petitioner's representative counseled Respondent about the prohibition against the use of corporal punishment against foster children. At that time, Respondent signed a Therapeutic Foster Care Agreement, statement of Discipline Policy, and Agreement to Provide Substitute Care for Dependent Children. Each of these documents restates the prohibition against the use of corporal punishment. In March 2002, Respondent took her 10-year-old foster child in her care to a McDonalds restaurant to meet his mother, who had been forced to place him in foster care due to his aggressive behavior. The mother and her three daughters were at a table with Respondent, the foster child, and another child. The foster child began to misbehave and Respondent warned him that she was the law and, if he failed to behave, she would drop him off at the detention center. Respondent is a uniformed crossing guard and is employed by the St. Lucie County Sheriff's Office. In response to Respondent's warning to behave, the child replied, "You're not the law. You're just a crossing guard." Respondent slapped the foster child in the mouth. The force of the slap to the mouth did not cause the child to cry, but did leave a red mark. The mother reported the incident to Petitioner. In dealing with cases of corporal punishment administered to foster children, Petitioner does not invariably revoke the foster parent's license. Instead, Petitioner attempts first to determine the likelihood that the foster parent can be rehabilitated so as not to use corporal punishment. Among the factors justifying revocation are that Petitioner had recently reinforced the corporal punishment prohibition with Respondent, Respondent displayed a blatant disregard or ignorance of the policy by striking the child in front of his mother, and Respondent falsely denied the incident during the course of the investigation and at the hearing. In some respects, the last factor is the most serious because Respondent's lack of candor and remorse for the incident undermine the trust that Petitioner necessarily places in foster parents whom it licenses.
Recommendation It is RECOMMENDED that the Department of Children and Family Services enter a final order revoking Respondent's foster home license. DONE AND ENTERED this 12th day of December, 2002, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 12th day of December, 2002. COPIES FURNISHED: Paul Flounlacker, Jr., 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 204B Tallahassee, Florida 32399-0700 Laurel Hopper District 15 Legal Counsel Department of Children and Family Services 337 North 4th Street Fort Pierce, Florida 34950 Lyn Carswell, Qualified Representative 2101 Avenue P Fort Pierce, Florida 34950
The Issue The determinative issue in this cause is whether Petitioners "abused" and "neglected" foster children in their care, as those terms are defined in Sections 39.01(2) and 39.01(45), Florida Statutes (2000). As a result of the alleged abusive neglect, two subsequent issues are raised: (1) whether Petitioners' foster home license should be revoked for the reasons as stated in the Administrative Complaint dated July 20, 2001; and (2) whether Respondent's denial of Petitioners' requests to adopt the "M" sibling and to adopt the "T/S" sibling foster children, based primarily upon the allegations in the Administrative Compliant dated July 20, 2001, as explained in a denial letter dated January 18, 2002, was appropriate.
Findings Of Fact Based upon observation of the witnesses and their demeanor while testifying in person and by taped interviews, the documentary materials received in evidence, stipulations by the parties, evidentiary rulings during the final hearing, and the entire record compiled herein, the following relevant and material facts are found. At all times pertinent to the issues herein, Respondent, the Department of Children and Family Services, was the state agency responsible for receiving and approving applications for foster care licenses and for monitoring, regulating, and if necessary, suspending or revoking foster parent licenses pursuant to Section 409.175, Florida Statutes. At all times pertinent to the issues herein, Respondent, the Department of Children and Family Services, was the state agency responsible for receiving, evaluating, approving or denying applications for adoption of foster children pursuant to Section 63.062, Florida Statutes, and Chapter 65C-16, Florida Administrative Code. Petitioners' Foster Care Licensure History Petitioners are married and are the parents of two biological children. Mrs. Sawyer was reared with foster children and has always desired to become a foster parent. Petitioners were initially licensed by the Agency as foster parents in October of 1986, and six months later on April 20, 1987, Petitioners voluntarily closed their foster home due to Mrs. Sawyer's complications with the pregnancy of their second child. During the above six-month licensed period, Petitioners successfully fostered ten children, the last child was removed by the Agency from the foster home in March 1987. In December 1986, two months after initial licensing, Petitioners were the subject of an abuse report alleging spanking a child. The Agency's investigation concluded that the abuse report was "unfounded,"4 and closure was recommended by the Agency's investigator. On September 7, 1987, the Agency again licensed Petitioners as foster parents. Eight months thereafter, on May 23, 1988, the Agency again closed Petitioners' foster home. On August 10, 1988, three months later, the Agency, for the third time, licensed Petitioners as foster parents. Mrs. Sawyer acknowledged using corporal discipline on a foster child during the 1988 licensure period. As a result of the corporal punishment incident in 1988, the Agency required Petitioners to attended its Model Approach to Partnership in Parenting (MAPP) classes, which Petitioners attended and completed. The 1988 licensure of Petitioners as foster parents was specifically granted for the "T/S" sibling group who, with voluntary permission of their biological parents, had been living with Petitioners for approximately two months before their official placement with Petitioners by the Agency. Since 1988, the Agency has annually renewed Petitioners' foster care license.5 Responding to the requests of the Agency, Petitioners on occasions fostered as many as 16 to 20 foster children. Petitioners' foster home was frequently used by the Agency for unannounced "overnight" foster care, many of which extended into protracted foster care periods. During periods when the Agency's need for foster home beds was pressing, the Agency's rule-of-five was waived by the Agency's District Administrator so that Petitioners could and did house more children.6 The record reflects no evidence of complaints of abuse or any other complaints during the periods the Agency needed and made use of Petitioners' home to foster children. The evidence of record, viewed chronologically, reflects a protracted period of intense investigation of allegations which, if true, were apparently ongoing over a period of months prior to the filing of Abuse Report 2000-198255, the basis of the Agency's intended revocation of Petitioners' foster care license. Petitioners' latest license was issued on August 24, 2000, and was effective until August 24, 2001. This August 24, 2000, foster home license is the subject of the Agency's revocation notice, which states: The revocation is based on the following reasons: Between December 21, 2000 and March 1, 2001, the Department of Children and Families investigated eleven reports of abuse and neglect involving your home. In Florida Abuse Hotline Report 2000-198255[7] it was concluded that there were verified findings of excessive corporal punishment and confinement, bizarre punishment and excessive restraint committed by Cynthia Sawyer towards several foster children in her care. The report also noted several instances of inappropriate physical punishment, which is a violation of the foster parent disciplinary policy. These incidents are considered "an intentional or negligent act materially affecting the health and safety of children in the home or agency" and a violation of the licensing rules promulgated pursuant to section 409.175, Florida Statutes. Section 409.175(8)(b) 1 and 2 Florida Statutes; 65C- 13.010(1)(b)5 Florida Administrative Code. (emphasis added) The Agency's allegations of neglect and abuse revolved around four specific types of disciplinary activities that are alleged to have occurred on or after August 24, 2000, the date the current foster care license was issued, and to have terminated on or before March 1, 2001, the date the Agency removed children from Petitioners' home. The four specific types of disciplinary activities are: (1) excessive corporal punishment and confinement, (2) inappropriate physical punishment, (3) bizarre punishment, and (4) excessive restraints.8 In support of those allegations, the Agency presented the testimonies of several foster children, video- taped interviews of three foster children made in March 2001, approximately one month after removal from Petitioners' home; the testimony of another foster care parent; the testimony of a Guardian Ad Litem; and the testimonies of several of the Agency's employees. Mike Katz, agency employee, prepared the Administrative Complaint but had no personal knowledge of the abuse allegations contained in Abuse Report 2000-198255, which formed the basis for the Administrative Complaint he prepared. Mr. Katz acknowledged that his understanding of the Agency's practice and policy was that "one incident of corporal punishment" did not equate to foster care license revocation. According to Mr. Katz, evaluating corporal punishment allegations requires all factors be taken into consideration and the totality of circumstances be reviewed; the intended result is a fact specific determination for each case of alleged corporal punishment. Kate Kimball's, the Sawyers' family service counselor, testimony was primarily concerned with agency reports dating from December 3, 1996, through the year 2000. Her testimony regarding and relating to matters that occurred prior to December 21, 2000, are not relevant nor material to issues of foster home license denial as stated in the Administrative Complaint that is challenged by Petitioners. However, Ms. Kimball's testimony regarding the Sawyers' life-style during the period she was their case worker is relevant and material to the issue of denial of the Sawyers' application to adopt the "M" children. The record reflects that in 1999, while fostering the "T/S" and the "M" siblings under the Agency's District Administrator's waiver of the rule-of-five policy, Petitioners were given an "Above Satisfactory" evaluation by the assigned foster care case worker, Kim Bryant. Ms. Bryant reported that the Sawyers are "very involved, supportative of the children's extra curricular activities and educational needs; show children much needed attention and affection; children and foster parents seem very fond of each other and there is much improvement with the children educationally and emotionally and they appear to have adjusted well in the home." Ms. Bryant's report is undisputed and credible. One year later, Hotline Report 2000-078274 was filed containing an allegation of medical negligence against Mrs. Sawyer as a result of her attempt to refill a prescribed medication for a foster child in her care after the child had taken all the medication. In this particular instance, the Agency had failed to provided Mrs. Sawyer with the child's medical record when the child was placed in her foster home. This medical negligence allegation was resolved when the case worker assigned to the Sawyers secured from the child's file the physician's prescription refill order. The Hotline Report was closed by the Agency with "No indicators of alleged maltreatment-or abuse/neglect." On June 26, 2000, and after the Sawyers added separate bedrooms and bathrooms for the girls and separate bedrooms and bathrooms for the boys to their home to accommodate 16 children, their case worker, Ms. Kimball, wrote, "It appeared that the Department has continued to utilize their home, as we have had no alternatives." The home study case worker's comments are revealing and reliable. It is reasonable to infer that the Agency was satisfied with the Sawyers' methods of disciplining foster children in their home, when they met the Agency's need for foster beds. However, when the Agency's need for foster beds were apparently met by other resources their prior position of satisfaction with the Sawyers, for reasons not entirely clear from the record, took a sudden 180-degree turn-about from satisfaction to dissatisfaction, within a six-month time period from June 26, 2000, to December 21, 2000. The case worker assigned to the "M" children, Anjanet Stilwell, reported that the Sawyers' foster home was "a wonderful foster home--they were very cooperative and caring." Case worker, Karen Braden, who was in the home twice weekly regarding kids assigned to her, wrote, "Cindy is great! I have no concerns regarding placement of my kids. I truly don't know how she does it!" I find Ms. Stilwell's and Ms. Braden's opinions acceptable and reflective of the Agency's approved satisfactory view of the Sawyers as foster parents for many children who were housed solely by the Agency's waiver of its rule-of-five policy and for its benefit. One foster care referral report regarding the "T/S" children written by case worker Heather Blair was considered at the Adoption Applicant Review Committee (AARC) staffing. In her report, Ms. Blair summarized Psychologist Lisa Gaise's conclusions that: "3 T/S children reported being paddle [sic] and 'the context in which these clear disclosures were made was so natural as to dispel any questions of the veracity of their statements.'" Apparently the AARC staffing considered Ms. Gaise's comments credible in their decision to deny the adoption application. The fact of the matter is that Ms. Blair's statement regarding the "truth" and acceptance of Lisa Gaise's opinion that the child's statement were true, is not accepted for the truth asserted and, therefore, is not credible.9 Bobby Cooper, another agency witness, commenced his investigation of Abuse Report 2000-198255, on December 21, 2000, at 4:00 p.m. Mr. Cooper's investigation consisted entirely of reviewing reports of other agency investigators. Mr. Cooper had no personal knowledge nor had he personally sought independent collaboration of statements contained in the reports he reviewed. His testimony is not credible. Kate Kimball, the case worker assigned to Petitioners' foster home, often made announced and unannounced visits to Petitioners' foster home, as required by Agency policy. Ms. Kimball was in close and constant contact with the foster children and the foster parents during her visits to the home. Ms. Kimball was required to (1) observe the foster children, speak in confidence with each child individually, immediately report any "signs" of abuse or "suspected abuse," and to (4) cause "removal" of a child or children from abusive foster home situations. Ms. Kimball never requested nor caused removal of a child from Petitioners' foster home during the period of December 21, 2000, through March 2001, the period the abuse reports were allegedly "verified." Detective Christi Esquinaldo was assigned to investigate this case by Hillsborough County Sheriff's Department. Her investigation consisted of interviewing foster child L.S., reviewing the abuse reports, and creating a matrix from those reports. The matrix consisted of Detective Esquinaldo's listing the names of children who were alleged to have been subjected to a specific abusive discipline crossed referenced by the names of the children who made the allegations. According to Detective Esquinaldo, L.S. told her that the Sawyers "made children stand in a corner for three to four hours" as punishment, and Lil David was restrained to a chair for "three to four hours." However, during her testimony at the hearing, L.S. denied having made those statements to Detective Esquinaldo. L.S.'s testimony at the final hearing is credible. In closing her investigation, Detective Esquinaldo recommended to the State Attorney's Office the direct filing of a felony charge of Aggravated Child Abuse against the Sawyers. The Hillsborough County State Attorney's Office, citing "numerous inconsistencies in the statements of the children," declined to file any charges against the Sawyers and closed their files on the matter. After reviewing the children's testimonies of record, I am compelled to agree with the Hillsborough County State Attorney Office that the "inconsistencies of the statements of the children" render their collective testimonies unreliable and insufficient to provide a preponderance of evidence necessary to establish a fact. None of the adult witnesses, presented by the Agency, possessed knowledge acquired through collaboration of the children's stories from independent sources and/or their investigations regarding the abuse allegations alleged in the Complaint. The Agency's employees' initial and total acceptance of the children's recollection of time, i.e. as "all day" and "all night," should have, but did not raise reasonable concern regarding each child's ability to differentiate between fantasy and reality and the child's accuracy of recall as well. The children's story-line, that Petitioners forced each of them to walk, to stand in time-outs, to dig holes, to sleep in their beds or do any other activities "all day" or "all night," was testified to as a form of punishment and not discipline for acting up. Accepting as true, accurate, and realistic, their identical versions of four specific experiences from the several children without more does not equate to credible nor collaborative evidence. The testimonies presented by several foster children at this hearing were, at best, confusing, conflicting and contradictory. When asked specific questions about the several forms and methods of discipline, the unanimity of their responses were: stand in the corner "all night," dig holes "all day," walk in circles "all day," and sleep in the bed "all day." The fact that the children's testimonies clustered in a certain position (sibling groups wanting to stay together as a group and those sibling groups wanting to be moved to another foster home as a group gave almost identical answers to questions relating to specific disciplines) does not mean nor imply that their testimonies were necessarily accurate, realistic, or true. In fact, the record reflects that several of the testimonies initially given by the children to the Agency were in conflict with their testimonies subsequently given to the Agency representatives and testimony given at the final hearing. Considering the children's testimonies in the context of the children's ages; the children's physical sizes; the physical improbability of a small child actually squatting, with knees bent, against a wall with both arms held out in front of the body or held out to the sides of their bodies all day; and their description of time as "all day" and "all-night," rendered their collective testimonies unrealistic, unreliable and, therefore, not credible. Steve Barber, Petitioners' pastor and the one who has interfaced with the foster children, based upon his experience as a former high school football coach, gave undisputed testimony that the physical size and stature of the young children made it physically impossible for any of them to "stand, squat, dig or walk in circles, all day." Based upon the testimony of Mr. Barber and the unrealistic testimonies of the several children, Respondent has failed to prove that Petitioners committed "excesses" in administering policy discipline, by imposing time-outs, separation from other children, grounding, loss of privileges, and by assigning other chores. I find that the cumulative testimonies of the foster children found in the Agency reports in evidence and of those children who testified at the final hearing unreliable, inconsistent, devoid of details, physically impossible in most instances and, therefore, insufficient to establish by a preponderance that the Sawyers subjected them to: (1) excessive corporal punishment and confinement, (2) inappropriate physical punishment, (3) bizarre punishment, and (4) use of excessive restraints as punishment as alleged in the Administrative Complaint filed in this cause. Of the three video-taped interviews reviewed by the undersigned, the interview of D.I. revealed a reliable and detailed account of the daily life and activities of the foster children in the Sawyers' home from an articulate child with personal knowledge and accurate recall of events. First, D.I. was in the Sawyers' foster care for a period of seven months. Second, D.I. appeared to be bright, intelligent, articulate, straight-forward, and he was definite and clear in his responses to questions asked by the Agency's spokesperson. Third, D.I.'s memory of details was complete, uncompromising, realistic, and reasonable. Fourth, D.I. acknowledged that his possibility of being reunited with his biological mother was nonexistent, and he would probably be in foster care until his majority, if not adopted, preferably by the Sawyers. Fifth, he is familiar with and aware of foster children, individually and as sibling groups "working the foster care system for their desired ends by telling stories." During his seven months' stay in foster care with the Sawyers, D.I. testified that he never saw nor was he made aware by other children of any child punished by the Sawyers in the form of being forced to stand in time-out "all day," forced to dig holes "all night," or forced to walk in circles "all day." D.I. knew that Lil L.S. pooped in her pants and smeared the poop over the walls of the foster care residence. He knows this because he was one of the older children who volunteered to clean the poop off the walls; he remembers these incidents because the walls had "white spots" where the cleaning solutions were used. He also remembered because Mrs. Sawyer would put white powder on the bedroom floor leading from Lil L.S.'s room to other parts of the house. In the morning when Lil L.S. was awaken and asked about poop on the walls, she would blame other children, but her foot prints would prove contradiction of the story of not having gotten out of bed during the night. According to D.I., Lil L.S. was never "hosed down outside" the house after pooping on herself. Each time Lil L.S. pooped on herself, Mrs. Cindy would require her to go into her bathroom10 and bathe herself. When asked about household chores and work around the house as a form of punishment, D.I. answered that older children would be offered the opportunity to "work outside" with Mr. Sawyer on "things around the house," only if that child wanted to work outside. If not, the child was given the option to stay outside and play or to go inside and watch T.V., play games, or do other things. D.I. was emphatic that the opportunity to do other things was made available to each child only after that child completed his or her homework. Homework was always first, and some children got in trouble because of not doing or completing their homework. According to D.I., the younger children who played outside would customarily play in the round-about driveway, the yard, and on the Jungle Jim play set. The older children would customarily do other things. D.I.'s examples of "doing things around the house" were: helping Mr. Sawyer work on his truck; putting together and/or repairing the Jungle Jim swing-slide play set; helping to dig a trench line to lay pipe for the new water heater connection; tending to and caring for the animals; planting trees and stuff; and painting and building additional bathrooms and bedrooms onto the house. According to D.I., all outside activities were made available to any children who wished to participate in them instead of playing among themselves. When asked, D.I. was empathic in his answer that no child, "as a form of punishment," was forced to assist Mr. Sawyer in "doing things around the house," if they wanted to help they could, if not, then other activities were available and that no child was handcuffed nor had he seen any (metal) handcuffs at the Sawyers' house, save his pair of red plastic toy handcuffs that came with a toy set the Sawyers gave him. D.I., from observation, knew Lil David to be self-mutilating.11 D.I. recalls that "Lil David would sometimes just pick himself to make himself bleed." During his seven-month stay and on more than one occasion, in passing, D.I. would see Lil David in bed at night with velcro restraints on his wrists and the bed to stop him from picking himself and making himself bleed. "Mrs. Cindy did this to keep Lil David from picking himself when he was asleep."12 Regarding meal times and meals at Mrs. Cindy's, D.I. stated that all the children ate the same meal at the same time "cause there was so many of us and Mrs. Cindy had no time for separate meals and we [older children] helped to feed the young children, we did help." When asked about peanut butter sandwiches as a form of punishment, D.I. responded, "Those children who had been bad or were in time-out at mealtime were separated from the other children and given peanut butter sandwiches to eat while in their time-outs. But Mrs. Cindy would say to them 'say you are sorry and you can join us.'" He never saw nor knew of a child in time-out (against the wall) for "hours." The longest time-out he could recall was about "20 minutes," and that was because the child was "acting up" in the time-out and had additional time added to the time-out. D.I. was familiar with the "T/S" and (other) siblings. He knew from personal experience in foster care that older siblings would instruct their younger siblings on all matters: what to say, when to say it, how to act, and how to act up. D.I. was personally familiar with "foster homes" and the means and methods of "getting out of one" and "staying together" as a sibling group and getting into another as a group. When asked about "corporal punishment" i.e. spanking with a wooden paddle and/or slapping with hands, D.I. testified that during his seven-month stay, he knew of no child to have gotten spanked with a wood paddle. "I never saw a wood paddle." Regarding "getting slapped by Mrs. Cindy" as punishment, D.I. answered that Ms. Cindy would "tap" you on the back of the head, butt, or shoulder "to get your attention, like if she was talking to you and you were watching T.V. and not answering her but she never slapped any of us for punishment." This method of getting one child's attention by touching is reasonable when considered in the context of the Agency's waiver of its rule-of- five policy so as to place as many as 16 to 20 children in the Sawyers' foster care home. 13 The video testimony of D.I. is accurate, detailed, reasonable, realistic, based upon his personal knowledge, undisputed and, therefore, credible. Based in part upon the video testimony of D.I., Respondent has failed to establish by a preponderance of evidence that the Sawyers subjected a foster child in their care to: (1) excessive corporal punishment and confinement, (2) inappropriate physical punishment, (3) bizarre punishment, and (4) use of excessive restraints for the time period alleged in the Administrative Complaint. The Sawyers' admitted use of velcro restraints on Lil David was neither excessive, punitive nor disciplinary, but rather was for Lil David's protection from harming himself. The Sawyers' used velcro restraints on Lil David during the day only when he was in time-out and sitting in a small rocking chair and during the night when he was put to bed. The evidence of record by testimonies of virtually every witnesses who knew Lil David knew him to be a self-mutilator. The use of restraints is an acceptable, preventative method for protection in this situation. The record contains no evidence that the Agency provided the Sawyers with an evaluation report of Lil David upon his placement nor during his stay within their foster home. Lil David's medical report would have advised the Sawyers of Lil David's self-mutilation problem. It is a reasonable assumption that had the Agency provided Lil David's medical records, the Sawyers would have been alerted to Lil David's self-mutilation problem and would have had the benefit of the Agency's instructions regarding care and protection for Lil David's problem of self-mutilation. The Sawyers' admitted use of velcro restraints reflects a caring and sincere effort of the foster parents to protect the child from hurting himself. In the absence of information from the Agency regarding Lil David's condition, the Sawyers' use of an acceptable, safe and preventative method of care for this particular problem reflects their efforts to comply with the "spirit" of the rules regarding foster parent responsibilities. The record contains no evidence that the Sawyers' use of velcro restraints to prevent Lil David's self- mutilation was "willfully harmful" or "neglect" or an "abusive" act of intentional punishment. Bobby Cooper's, child protection investigator, reported findings and conclusions were based entirely upon statements provided by individuals he interviewed. The record contains no evidence of collaboration to substantiate testimonies of the children. Therefore, Mr. Cooper's testimony is hearsay without support and therefore, not credible. Finally, consideration is given to what is not in evidence. First, the record in this case contains no evidence of a child alleged to have suffered ongoing neglect and abuse in the form of excessive, bizarre,14 and inappropriate punishment, or to have borne body marks or bruises resulting from the alleged treatment by the Sawyers. Second, the record in this case contains no evidence of a Sawyer-housed foster child to have suffered "physical, mental or emotional injury" as the result of the alleged negligent and abusive treatment. Third, the record contains no evidence from which it could be inferred that a foster child removed from Petitioners' home suffered a "discernible and substantial impairment in the ability to function within the normal range of performance and behavior" as a direct result of the alleged abusive discipline.15 The evidence of record supports a reasonable conclusion that Mrs. Sawyer was proactive in seeking the assistance of local politicians and state officials to accomplish her apparent goal of responsive and exceptional services from the Department for her foster children. It is undisputed that the Sawyers, with the advice and consent of the Department, had more foster children than was reasonable to expect only two adults to provide a minimal of custodial care. Permitting the Sawyers to house as many as 16 to 20 foster children, plus their two biological children, at any point in time, was permissive and self serving by the Department and was overreaching acceptance by the Sawyers. It is a reasonable inference that in this case both the Department and the Sawyers engaged in a mutual course of conduct to satisfy their respective needs and desires. When the mutually beneficial relationship came to a close, a reversal of opinions and recommendations from the Department regarding the Sawyers occurred. The Sawyers, who had been described by the Department as "unbelievable foster parents," became merely unbelievable when confronted with and evaluated by conflicting stories of 14 foster children removed from their home. Denial of Adoption Application for the M sibling group Turning to evidence in the record regarding the denial of Petitioners' application to adopt the four "M" siblings, the fact that some animosity existed between Ms. Gains16 and Mrs. Sawyer, became readily apparent during Ms. Gains' testimony. The existence of animosity was further confirmed by Ms. Gains' detailed chronology of alleged abusive acts and omissions by Mrs. Sawyer over a period in excess of one year. When answering questions asked by the Agency's representative regarding Ms. Gains' statements and opinion of Mrs. Sawyer, D.I. answered: "She [sic] said handcuffs and other things about Mrs. Cindy so as to get kids moved out of Mrs. Cindy's house to her house." Based upon D.I. testimony above, Ms. Gains' testimony given at the hearing and her written report in evidence is biased and unreliable. In the evaluation and review of Petitioners' adoption request, Respondent appropriately engaged in a holistic evaluation of all abuse reports filed, investigative reports, personal opinions, and comments from Department employees, community members and other foster parents, dating from as early as 1986 to the date of the adoption denial. Respondent, in reevaluation of Petitioners' adoption request for the "M" children, should hereinafter be guided by the Findings of Fact herein that allegations of excessive discipline as contained in the Administrative Compliant herein were not proven by the testimonies of the Agency's witnesses and documentary evidence. Therefore, allegations found in Abuse Report 2000-198255 reported or alleged to have occurred within the time period of December 21, 2000, through March 1, 2001, shall not be considered by the Agency in its reevaluation of the Sawyers' application to adopt the "M" siblings; being mindful that the "M" siblings' desire to be adopted by the Sawyers is in the "M" child(ren)'s best interest.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order granting renewal of Petitioners' Foster Care License. It is further RECOMMENDED, that in accord with the expressed desires of the "M" siblings to be adopted by Petitioners, that the Department enter a final order granting Petitioners' application to adopt the "M" siblings. DONE AND ENTERED this 13th day of November, 2002, in Tallahassee, Leon County, Florida. FRED L. BUCKINE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of November, 2002.
The Issue The issue is whether Petitioner should revoke Respondent's license to operate a child care facility for failing to provide documentation of the director's credential or training.
Findings Of Fact Carlin and Susan Towels created Respondent in 1990. Their daughter, Angel R. Towels, began working part-time taking care of children at the facility in 1998. Ms. Towels was sixteen-years old at that time. In 1999, the minimum standards for child care personnel included a requirement for the director of a child care facility to be credentialed by January 1, 2000. See § 402.305(2)(f), Fla. Stat. (1999). Additionally, the statute mandated that the director's credential would become a required minimum standard for licensing of child care facilities by January 1, 2003. Id. Prior to November 2003, the Leon County Health Department was responsible for inspecting child care facilities and issuing licenses to them in Leon County, Florida. Respondent has been licensed by the Leon County Health Department as child care facility for many years. In 2000, Ms. Towels began working full-time as part of Respondent's staff. She became the licensed owner and operator/director in 2002. Ms. Towels has never been credentialed to act as Respondent's director because she has not completed a required course of study that would earn her a Child Development Associate (CDA) degree, certificate, or equivalent recognition. Ms. Towels' father was never credentialed to act as Respondent's director. He completed the CDA class but he never passed the examination for the required class entitled Behavior, Observation, and Screening (BOS). In February 2002, the Leon County Health Department sent Ms. Towels a document entitled "Reminder Notice of Director Credential Requirement." Ms. Towels signed the document indicating that she was aware of the need for Respondent's director to be properly credentialed by January 1, 2003, pursuant to Section 402.305(2)(f), Florida Statutes (2001). In 2002, the Legislature amended the statute requiring credentials for directors of child care facilities as a condition of licensing. Section 402.305(2)(f), Florida Statutes (2002), required directors to be properly credentialed by January 1, 2004, instead of January 1, 2003. The most recent license issued to Respondent by the Leon County Health Department was effective January 9, 2003, through January 9, 2004. The license authorized Respondent to care for a maximum of 23 children based on the square footage in the facility. At some point in time, the Leon County Health Department amended the license, authorizing Respondent to care for a maximum of 19 children. The Leon County Health Department amended the license at Respondent's request. Respondent made the request based on the mistaken belief that documentation establishing its director's credentials would not be required for a facility that cared for no more than 19 children. Around November 2003, Petitioner assumed the duties previously performed by the Leon County Heath Department relative to inspections and licensing of child care facilities in Leon County, Florida. In an on-site visit in November or December 2003, Petitioner's staff discussed the need for Respondent's director to be properly credentialed by January 1, 2004. In a letter dated December 31, 2003, Petitioner reminded Respondent of the minimum standard licensing requirement for credentials beginning January 1, 2004. The letter requested Respondent to provide Petitioner with a copy of its director's credential or the director's training transcript within 10 business days. The letter advised that Petitioner would issue Respondent a provisional license, not to exceed six months, if Respondent failed to provide the required documentation. According to the letter, if Respondent failed to comply with the credential requirement within the provisional- license period, Petitioner intended to initiate administrative action to revoke Respondent's license. In a letter dated January 28, 2004, Petitioner again advised Respondent that it was not in compliance with the statute. Petitioner's letter requested Respondent to provide monthly updates on the director's progress toward earning a credential or the facility's progress in hiring a director with the appropriate credential. The letter clearly stated that if Respondent's director was not credentialed at the end of the provisional-license period, Petitioner would take action to revoke Respondent's license. Petitioner enclosed Respondent's provisional license with the January 28, 2004, letter. The provisional license was effective January 2, 2004, through July 2, 2004. The provisional license authorized Respondent to care for 23 children based on the square footage of the facility as stated in Respondent's most recent application for renewal of license. In a letter dated June 1, 2004, Petitioner once again reminded Respondent the director's credential was a minimum licensing requirement. The letter asserted Petitioner's intent to revoke Respondent's license if Respondent did not comply with the requirement for a credentialed director by July 2, 2004. On or about July 12, 2004, Petitioner issued an Administrative Complaint. The complaint alleged that Respondent's director was not properly credentialed and that Petitioner intended to revoke Respondent's license. After Petitioner issued the Administrative Complaint, Petitioner continued to contact Respondent to see if Respondent was making progress in complying with the credential requirement. There were two telephone contacts in July 2004, on-site visits in August and November 2004, and a re-inspection most recently on January 6, 2005. In July 2004, Ms. Towels registered for a course equivalent to the CDA degree. However, she dropped out of the class before completing it. In January 2005, Ms. Towels enrolled in another CDA class, which she had not completed by the time that the hearing commenced. The class Ms. Towels is attending is approximately a one-semester course that students may complete within six months.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order revoking Respondent's license. DONE AND ENTERED this 1st day March, 2005, 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 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of March, 2005. COPIES FURNISHED: Mary Ellen McDonald, Esquire Department of Children and Family Services 2639 North Monroe Street Building A, Suite 100A Tallahassee, Florida 32399-0700 Angel Towels Luv-A-Lot Child Care Center 2501 Lake Bradford Road Tallahassee, Florida 32310 Joe Garwood, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1371 Winewood Boulevard Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact The Petitioners R.G. and M.G. were licensed as foster parents and their home as a Children Youth and Families foster home for dependent children at all times pertinent hereto. The Respondent is an agency of the state of Florida charged with licensure of foster parents and foster homes and with regulating and enforcing the standards of care of children placed in such foster homes as dependent children. This dispute apparently arose on or about April 18, 1990 when M.G., the foster mother, brought the M. children to the Department of Health and Rehabilitative Services office on that date to talk with a foster care counselor about problems experienced with the M. children in her home. Apparently the visit to the Department's office arose because M.G. had discovered that one of the children had allegedly stolen one or more articles from a local store in the community, or believed that she had, and was seeking the advise and council of Department's representative concerning the manner in which to address that perceived problem. During the course of that encounter with the Department's representative the M. children or some of them related incidents occurring in the home in the past while they were placed in the custody of the Petitioners which they felt involved or constituted mistreatment by M.G. Upon learning of these reports Department personnel removed the children from the G. home on April 18, 1990. No other children have been placed by the Respondent in the G. foster home since that time. Michelle M. testified that Petitioner M.G. called Marie M. a bitch, a whore and a slut on one occasion and gave Marie M. "the bird" (an obscene gesture). Michelle M. testified that M.G. called Marie M. a slut and stated that "she's just going to grow up to be a whore." Apparently Marie M. and Michelle M. had reported that M.G. called Marie M. a whore when Marie M. told M.G. about borrowing fifty cents from a boy at school. At the hearing, however, Marie M. testified that she borrowed fifty cents from a boy at school and that when M.G. learned of it she said "it would make her look like a whore." Mandy M. testified that M.G. thought that Mandy had called her "a faggot" and that, instead, she told her that she had called her sister that name but that M.G. did not believe her and sent her to her room and shoved her into the room whereupon she fell and hit herself against the bed or bedpost by accident. Michelle M. testified that on a church hayride a boy threw hay and hit M.G. in the face whereupon, thinking Michelle M. had done it, that M.G. hit Michelle on the leg with a flashlight. Mandy M. testified that M.G. hit Michelle on the leg with a flashlight, but her testimony revealed she knew nothing of that incident and her description of it was related to her by one of her sisters. Additionally, Marie M. testified that she saw M.G. pick up an infant by one arm from a crib and scold it for crying as she was picking the infant up to hold the infant in her arms. Michelle and Marie M. testified that M.G. held Marie M.'s mouth open and shoved red hot sauce into her mouth with a spoon as punishment for some perceived infraction. Marie M. testified that M.G. threw hot tea or hot water on the face of Marie M. while the child was asleep on a couch. M.G. categorically denies all the allegations made by the girls, the foster children in question referenced above. She denies ever making obscene gestures, ("the bird"), at any of the girls and denies calling them names such as bitch, slut or whore. She concedes that she may have admonished them or one of them about not "acting like a slut or a whore," etc. She also denies ever having administered hot sauce to any of the children. She said that on one occasion she gave Mandy some mustard on a teaspoon when the child inquired what it tasted like because she had never tasted mustard. She gave her a small amount of it just to show her how it tasted. She denies ever throwing hot tea or hot water on the face of any of the children and denies causing any of the children injury, specifically concerning the bedroom incident when the child apparently bruised her back falling against the bed. M.G. did use confinement for brief periods in a child's room as a form of discipline for inappropriate conduct in the home. She also denies hitting Michelle M. on the leg with a flashlight during the church hayride. In fact due to her position in the haywagon at the other end of the wagon from the child in question, it would have been impossible for her to reach over and hit her with a flashlight and that incident did not occur. M.G.'s testimony concerning the children's conduct and family life in the home with the children is to the effect that the older two girls, particularly the oldest, Michelle M., had a tendency to lie in order to "get their way"; that the girls were unruly and that they, particularly Michelle, used their relationship with HRS to try to intimidate the foster parents, particularly M.G. They had threatened to report M.G. for improper behavior towards the children in the home. The children resented the foster parents authority. Her testimony describes in detail, as do the exhibits submitted by the Petitioners, consisting of the monthly reports M.G. made to HRS, the progress of the girls and conditions generally in the foster home. This testimony and evidence shows that the Petitioners generally provided the children a good, wholesome home environment, with extensive involvement in school and church activities and with ample wholesome recreation activities at the home site on a lake. During the tenure of the girls in the Petitioners' home their scholastic progress improved markedly such that they were all earning "A and B" grades in school and otherwise were progressing well in school. M.G.'s testimony established that the Petitioners were providing a wholesome home environment for the children and were generally conscientious about caring for the children's needs, including medical needs, and with maintaining contact with and reporting to HRS concerning the children's living conditions and their progress in the home and in the school and church environment. The testimony of M.G. to the general effect that the older girls, particularly the oldest child, had a tendency to threaten reporting the parents or M.G. to HRS concerning their conduct as foster parents and their willingness to lie in an attempt to get their way or to intimidate the foster parents is corroborated by the letter in evidence as corroborative hearsay authored by Linda Kennedy. She is an acquaintance of the Petitioners associated with the Petitioners through the foster parent program. That letter indicates that when the girls were being taken to HRS to make statements concerning the incidents in question that they were reported to have said that they wanted to "get back at her" meaning M.G., the Petitioner and that Marie was heard to instruct Mandy not to talk to a lawyer because she "now liked M.G." and that Michelle had commented to the effect that she "wanted to really get her," meaning M.G. This information is taken from a hearsay letter in evidence pursuant to the above cited provision of Section 120.58, Florida Statutes but it corroborates the testimony to the same general effect of M.G. and corroborates testimony of Mandy who, after describing in her testimony some of the alleged parental abuse by M.G., testified that her sisters had asked her to say things to hurt M.G. Because of these revelations contained in the testimony of Mandy M. and the testimony of M.G., as corroborated by the letter in evidence authored by Linda Kennedy, it is deemed that the testimony of the three children can be accorded scant credibility and resultant weight. Accordingly the testimony of M.G. and Petitioner R.G. is accepted over that of the testimony of the three children testifying for the Respondent and it is found that the incidents described by the three children did not occur or did not occur in the way described by the three children such that they can not be deemed to have constituted abusive, disciplinary parenting practices and prohibited disciplinary practices. The testimony of Donna M. establishes that she has overseen the operation and management of foster homes in her capacity with the Department for many years. After the M. children were removed from M.G. and her husband and their foster home she had a number of telephone conversations with M.G. M.G. appeared to her, based upon her observance and her experience, to seem "fairly incoherent" during those telephone conversations on occasion. Consequently she recommended to M.G. that, in the course of the controversy concerning whether or not the foster home should be relicensed, that M.G. obtain a psychological evaluation. M.G. apparently scheduled that evaluation, appeared at the psychologist's office but, as shown by Petitioner's exhibit 5, the psychologist's report, apparently did not genuinely feel that she needed to get an evaluation. She rather merely consulted the psychologist concerning his advice to her about her dealings with HRS. He declined to render such advice and no psychological evaluation was ever made. In view of Ms. Mimms testimony, which is accepted, and in view of the comments made in the letter of Ms. Kennedy, and from the hearing officer's observance of the demeanor of M.G. and consideration of her testimony, it is deemed appropriate that a psychological evaluation of M.G. be obtained as a condition upon relicensure.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record and the candor and demeanor of the witnesses, it is therefore recommended that a Final Order be entered by the Department of Health and Rehabilitative Services granting the application for relicensure of the Petitioners as a Children Youth and Families foster home for dependent children, conditioned on the obtaining of a satisfactory psychological evaluation of M.G. RECOMMENDED this 3rd day of August, 1992, in Tallahassee, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of August, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-5842 Respondent's Proposed Findings of Fact (The Petitioners submitted no proposed findings of fact which can be independently and specifically ruled upon). - I. Rejected as not supported by the greater weight and credibility of the evidence. COPIES FURNISHED: Rodney M. Johnson, Esquire HRS District 1 Legal Office P.O. Box 8420 Pensacola, FL 32505-0420 Ronald and Marjorie Grover 4713 Radio Road Milton, FL 32583 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 John Slye, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700
The Issue Should Respondent have her application to renew her child care facility license denied by Petitioner for reasons set forth in the Administrative Complaint brought by Petitioner? §§ 402.308 and 402.310, Fla. Stat. (2005).
Findings Of Fact The Department of Children and Family Services has jurisdiction over Respondent by virtue of the provisions set forth in Sections 402.301-402.319, Florida Statutes (2005). The Respondent, Sherlane Craig, is licensed to operate Sunniland Nursery and Preschool, as a child care facility in compliance with Chapter 402, Florida Statutes (2005), and Florida Administrative Code Chapter 65C-22. Petitioner is the administrative agency of the State of Florida, charged with the duty to enforce and administer the provisions of Chapter 402, Florida Statutes (2005). Petitioner issued a child care facility certificate of license to Respondent for the Sunniland Nursery and Preschool effective June 1, 2004, through June 1, 2005. Petitioner issued Respondent a child care facility certificate of license that was provisional for the period June 1, 2005, through August 1, 2005. The provisional license was sent to Respondent on June 7, 2005, and was received by Respondent later in June 2005. In addition to the license itself, the transmittal letter to Respondent stated: Enclosed is the provisional license from the Department of Children and Families to operate a childcare facility. A provisional license is being issued at this time based on the facility's continued non-compliance with the state's minimum standards. Specifically the facility was cited five times during the last licensing year for non-compliance regarding the maintenance of fall zone material on the playground. The Department has offered suggestions on creating a framing system to hold fall zone material in place. As of today the Department has been unable to verify compliance. This license is valid until August 1, 2005. An annual license will be issued when all of the above requirements have been met. The license is not transferable to another owner or any other location. If at some point in the future you discontinue operation of your facility, we would appreciate you notifying our childcare licensing office. * * * In advance of the decision to provide Respondent with a provisional license, Petitioner had performed inspections of the facility on May 2, 18, and 24, 2005. On June 8 and June 10, 2005, additional inspections were made at the facility. The May 18 and May 24, 2005 inspections revealed problems with the fall zone on the playground that was the subject of the letter informing Respondent that she had been issued a provisional license. The May 24, 2005, investigative report referred to as a reinspection checklist made mention of the citation for the fall zone during previous inspections. The June 8, 2005, inspection continued to note a problem with the playground area and the fact that Petitioner had issued Respondent a provisional license for continued non- compliance by the failure to maintain the proper cover or protective surface in the fall zone area on the playground. The June 10, 2005, report on the inspection did not mention the fall zone on the playground. More importantly, Respondent testified without being refuted that the fall zone area on the playground was corrected on a date beyond June 8, 2005, the more recent inspection date noting non-compliance for conditions on the playground. To that end, during a visit on June 29, 2005, Dinah Gallon and Kathy Schmitz Petitioner's employees found the conditions of the outdoor play area with the addition of the sand to be satisfactory. Dinah Gallon is a license counselor for Leon County, employed by Petitioner. Respondent also presented evidence in the form of an invoice from Esposito's Nursery concerning the purchase of "2/3 cu yd of coarse sand" and for its installation. That invoice was dated June 22, 2005. On July 8, 2005, Respondent wrote Joseph Alexander, Childcare Services Supervisor, District Two, Department of Children and Family Services, concerning the status of the playground called into question under the terms of the provisional license. That correspondence was received at District Two on July 11, 2005. It stated: Responding to previous instruction from your office to pad our playground with sand in an effort to add protection, in the way of ground cushioning, for our attendants; I have five loads of large gravel, beach sand delivered and spread through our outdoor play area. In the instruction I received it was suggested that barriers be placed around the areas where sand was necessary in an attempt to prevent its erosion. Upon purchasing the large gravel, beach sand from Esposito's, I was informed that barriers for this particular sand was not necessary due to the fact that the sand would absorb the water therefore would not wash away. * * * Although Respondent explained the difficulty experienced in providing resilient and proper cover for the fall areas near the playground equipment, she has not denied the lack of compliance over time with the requirement to maintain a safe fall zone by providing appropriate cover material in those areas. In response to the problem, the type of sand more recently placed has been less prone to erode. Aside from the lack of adequate maintenance of fall zone material on the playground, it is the failure to meet child ratio standards and the failure to provide adequate supervision as observed in the more recent inspections that has led Petitioner to bring the Administrative Complaint, which could lead to the denial of the annual license renewal. The Administrative Complaint is also drawn in recognition of the past history by the Respondent of violations of various kinds. In the category of what is described in the Administrative Complaint as "current violations," the May 2, 2005, inspection of the facility revealed non-compliance with Section 402.305(4), Florida Statutes, and Florida Administrative Code Rule 65C-22.001(4)(a) and (b). In particular, the one 1:4 ratio of staff to children for 0-to-12-month-old children required was not met, in that the ratio found was 1:6. The two- year-old category which called for a 1:11 ratio was not complied with, in that the ratio was 1:12 at the facility. Two of the three rooms in which the children were found were out of compliance with the ratio requirement. These problems were corrected on the date of inspection. On May 18, 2005, in a return visit to the facility, the inspection revealed continuing problems in relation to staff to children ratios under the statutory and rule provisions that have been previously described. In this visit, the 0-12 month category calling for a ratio of 1:4 was in actuality 1:5. The mixed group involving 1-to-5-year-olds was not in compliance in that it had a ratio 2:23. In a second observation involving the 0-to-12-months-age group, the ratio was then 1:6, instead of the called for 1:4. Every classroom was found out of compliance with the needed ratio upon this re-inspection. The problem was corrected when additional staff arrived to cover the classes. On May 24, 2005, when the facility was inspected there were continuing ratio problems contrary to the statute and rule. Among the observations, there was one in the initial contact calling for a 1:4 ratio for infants. The ratio found was 1:5. A mixed group of one to five-year-olds calling for a ratio of 1:6, in fact had a ratio of 2:21. All rooms observed were out of compliance with the ratio standards during the first observation. Upon the last observation of the rooms, corrections had been made and the rooms were in compliance. On that same visit, the facility was not compliant with Florida Administrative Code Rule 65C-22.001(5)(a), (b), and (d). It was noted that there was "A classroom of two-year-old children that had no direct supervision. There were three napping in a room and no adult was present." These conditions related to supervision were corrected at the time of the inspection. On June 8, 2005, when an inspection was made at the facility there was a problem found in relation to Florida Administrative Code Rule 65C-22.001(5)(a), (b), and (d). It was observed that the children had gone to Levy Park with one adult present, when an additional adult was needed to supervise the outing. On June 10, 2005, at the next inspection of the facility continuing problems with ratios were found contrary to the statute and rule. On this occasion, two of the three classrooms observed were out of compliance during the initial observation. During a second observation, the infant room remained out of compliance with the ratio standards. The initial observation for the 0-to-12-month-old infants showed a ratio of 1:5, when the ratio called for was 1:4. On the second observation for that age group, the ratio found was 1:4. There was also a problem related to non-compliance with Florida Administrative Code Rule 65C-22.001(5)(a), (b), and (d), in that "Direct supervision of children in the [2 year old] group was inadequate in that [while the provider of the two year old group assisted children in the bathroom, the remainder of her [sic] was left unattended]." By way of history, as far back as July 31, 2000, problems were observed at the facility in relation to non- compliance with standards pertaining to direct supervision. Over time, problems of compliance with ratio standards were also found. A similar pattern was found on August 4, 2000, December 8, 2000, August 7, 2001, April 2, 2002, August 6, 2002, January 30, 2004, and April 27, 2005. Other forms of violation were also found on those dates and additional dates as well. Significantly, in the past, formal discipline has been imposed against Respondent. On April 8, 2002, a $100.00 fine was imposed against Respondent by the Leon County Health Department, predecessor to Petitioner. The basis for that administrative fine was "Your center was found operating over capacity with 46 children (19 children at the center and 26 children at Levy Park). Your current capacity is 45." That was as of August 10, 2001. On April 2, 2002, a visit had also been made in which it was discovered that the number of children present was 48 as opposed to the capacity of 45. On June 3, 2002, the Leon County Health Department imposed a $50.00 fine associated with the May 28, 2002, inspection in which it was found that one of the rooms had children in which the ratio of staff to children was not in compliance. On October 31, 2002, the Leon County Health Department imposed a $100.00 fine premised upon non-compliance with ratio standards on September 30, 2002. On February 6, 2004, Petitioner brought an Administrative Complaint against Respondent. This was premised upon non-compliance with ratio standards on January 30, 2004, and February 6, 2004. A $1,000.00 fine was imposed, consistent with the proposed administrative fine suggested in the Administrative Complaint. In each instance recounted, the administrative fines were paid by the Respondent. Petitioner's Composite Exhibit numbered 1, which sets out the inspection reports during the period contemplated by the overall Administrative Complaint, demonstrates that Petitioner through its employees explained the nature of the problems to Respondent and provided her copies of the inspection reports. By these arrangements, Respondent was reminded of the need to comply with the requirements related to the license. Given the findings made during the inspections, those reminders were frequently stated, to the extent that Respondent could not reasonably contend that she was unaware of her obligation to comply with the law. Concerning the internal process within the Petitioner Agency as to the classification of violations, there is no formal rule. The response to the violations from the policy perspective is to perceive the staff ratio and supervision issues as being more serious than other forms of violations. Class 1 violations are those posing a more immediate threat to safety and harm to the children in a facility. Under Petitioner's internal policy staff ratio and supervision, violations fall within Class 1.
Recommendation Upon the consideration of the facts found and the conclusions of law reached, it is RECOMMENDED: That a Final Order be entered denying Respondent's child care facility license. DONE AND ENTERED this 27th day of February, 2006, in Tallahassee, Leon County, Florida. S CHARLES C. ADAMS 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 27th day of February, 2006. COPIES FURNISHED: Lee Dougherty, Esquire Department of Children and Family Services 2639 North Monroe Street, Suite 104 Tallahassee, Florida 32399 Deveron Brown, Esquire Brown and Associates, LLC 223 East Virginia Street Tallahassee, Florida 32301 Gregory Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John Slye, Acting General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue to be decided in this case is whether the Petitioner's, Clemintine Lyons, foster home relicensure application should be approved.
Findings Of Fact Clemintine Lyons was first licensed as a foster home in 1988. The licensing staff had several concerns at that time. These concerns included the fact that Ms. Lyons had no prior parenting experience and was taking medication for depression. However, those concerns were addressed and Ms. Lyons was licensed. During the initial licensing period, the Department had difficulty with Ms. Lyons regarding her willingness to work cooperatively with the Department regarding the children in her care and to contact the Department before she made major decisions regarding the children in her care, such as parental visitation. For example, against the wishes of HRS and as a form of punishment for Dorinda, Ms. Lyons kept Dorinda from attending an HRS picnic for prospective adoptees to meet adoptive parents. The HRS staff was concerned about this incident because they were trying to arrange an adoption for Dorinda and the picnic was an important step in that process. Ms. Lyons was also unhappy about HRS counselors trying to have private conversations with Dorinda. Further, on one occasion, Ms. Lyons left the HRS district where she and Dorinda lived to take Dorinda to Dorinda's mother's home in another district to retrieve some clothing given to Dorinda by Ms. Lyons which had been left at the mother's home. Ms. Lyons made the trip because Dorinda was short of clothing. Ms. Lyons took Dorinda to her mother's home without notifying any HRS counselors. When Ms. Lyons was ready to leave, Dorinda refused to get in the car, so Ms. Lyons called the police to assist her in taking Dorinda back to her house. The incident was of concern because Ms. Lyons unilateral action could have potentially placed Dorinda in a dangerous situation, given the fact that the abusive parent was still in the home. In short, both incidents involving Dorinda Small demonstrated very poor judgment on the part of Ms. Lyons regarding the care and protection of a child in her care. Department personnel also testified about another incident which occurred during initial licensure of Ms. Lyons regarding two brothers, a six- year old and an eight-year old, she had just received as foster children in her home. The same day that they were brought to the home, they called a taxi while Ms. Lyons was taking a nap and had themselves driven to their aunt and uncle's home. However, the evidence regarding the elopement of these two boys was very vague and cannot be used to infer a lack of ability to care for foster children on the part of Ms. Lyons, especially since foster children come to foster care with a lot of problems including disciplinary and emotional problems. Additionally, in 1989, Ms. Lyons applied to the Department to become an adoptive parent. While going through the training and background checks, the Department, for the first time, discovered an incident involving a foster child who had been placed in Ms. Lyons' home. Clara Mitchell, a neighbor and friend of Ms. Lyons, informed the Department that she had invited Ms. Lyons and Dorinda Small, a foster child living in Ms. Lyons' home, to her home for Thanksgiving. Before eating, Ms. Lyons fixed a plate of food for Dorinda. When Dorinda noticed that tomatoes had been placed on her plate, she told Ms. Lyons that she did not like them and would not eat them although she had eaten tomatoes before. Ms. Lyons became upset and hit Dorinda across the face and told her to go home. Dorinda left Ms. Mitchell's home, but had to wait outside for Ms. Lyons because Ms. Lyons' door was locked. Ms. Lyons stayed at Mrs. Mitchell's home for about 45 minutes to an hour before going back home and letting Dorinda come inside. Once the Department learned of this incident, the Department made it very clear to Ms. Lyons that the Department's policy prohibited the use of any corporal punishment on a foster child. Ms. Lyons admitted she was aware of this policy and that she understood she was not to use corporal punishment on a foster child again. However, despite the problems with Dorinda Small and the two boys, Ms. Lyons was relicensed on the recommendation of a licensed counselor who felt that because of the desperate need for foster parents, Ms. Lyons with more training and closer supervision, would learn to grow into the role of a foster parent. Towards that end, Ms. Lyons voluntarily agreed to go through additional training known as the Model Approach to Partnerships and Parenting. The model approach program was a thirty-hour training seminar. One of the topics specifically addressed was role identification, specifically the role of a foster parent in relation to HRS, the foster child and the biological family. This training was in addition to the training that Ms. Lyons went through before her initial licensure. In addition, Ms. Lyons was sent information on several different occasions which outlined Ms. Lyons' duties and roles in interacting with HRS, the foster child and the biological family. One of the primary duties of the foster parent is to provide a caring environment for the foster child as well as consult with either HRS or the biological parent before making any major decisions regarding the foster children. It quickly became apparent that the additional training had not improved Ms. Lyons' ability as a foster parent. From July 17 through August 28, 1991, three foster children were placed in Ms. Lyons' home. The children's mother, Robin Williams, had requested foster care assistance for her six children, while Ms. Williams went through voluntary drug rehabilitation. The three oldest, Rasheen, age ten, Shykimma, age eight, and Raheem, age seven, were placed with Ms. Lyons The voluntary aspects of Ms. Williams' decision meant that she was under no court restrictions as to visitation or telephone contact and could remove her children at any time from foster care. Problems with the foster arrangement arose almost immediately. The protective services worker for the Williams', Kathy Perkins Guy, began receiving complaints about Ms. Lyons from Ms. Williams, the Williams children and counselors working with Ms. Williams in her drug treatment. One complaint by the Williams family against Ms. Lyons was that she was not permitting visitation as often as the Williams and HRS felt should be permitted. However, after complaints by Ms. Williams, the Williams' were satisfied with the frequency of visitation. On the other hand, HRS tried to show continued lack of cooperation by Ms. Lyons when Kathy Perkins Guy, the Williams' case worker, tried to arrange visitation on one particular Saturday, but Ms. Lyons told her that she had too many errands to run and it was not convenient. The inconvenience was legitimate because Ms. Lyons sister had died and she was taking care of the funeral arrangements. However, Ms. Lyons never communicated these facts to the HRS caseworker. It is important to note that Ms. Guy did not require Ms. Lyons to facilitate visitation in this instance. Ms. Guy only asked if Ms. Lyons would. Such "asking" by HRS leaves the clear impression that the licensee may decline the request without adverse impact on that person's foster license or future licensure. The incident does demonstrate poor communication by both HRS and Ms. Lyons. Additionally, Ms. Lyons also did not make arrangements for the Williams children to call their mother on a daily basis, but restricted them to one phone call two times a week. Ms. Williams deposition testimony indicated that the frequency of telephone calls was sufficient. Again, Ms. Guy had requested more frequent telephone contact. Ms. Lyons declined because getting through to the mother at the addiction center was difficult to arrange because of the center's restrictions on the mother. Again, HRS only asked for more frequent telephone contact. HRS did not require it. The clear impression to the licensee was that she could decline the request. Ms. Williams also complained that Ms. Lyons had cut her daughter Shykimma's hair without first consulting her. Such consultation with the parent is normally required by the Department. The children complained that they were not permitted to wear underwear while they slept at night and were not being allowed to sleep on pillows or use blankets. When questioned, Ms. Lyons stated that the children were placed in her home with very few clothes, and that she did not want to have to wash clothes every day. However, a foster parent is instructed to have spare clothing on hand or to be prepared to supply spare clothing. The Williams' felt they had adequate clothing but that their clothes often smelled bad the second day. As to the lack of pillows and blankets, she said that the kids did not need blankets because it was summer and the children did have sheets. She also said she did not want the children messing up her pillow shams but that they had other pillows to sleep with. The Williams' depositions demonstrated they had other pillows which they could use. The evidence also demonstrated that the children were dressed appropriately for bed since they slept in pajamas. In addition, Ms. Lyons made the children recite Bible verses as a punishment even though they were Muslim. On one occasion, Ms. Lyons had Rasheen recite a verse to Ms. Guy, which he interpreted to Ms. Guy to mean that he had to obey Ms. Lyons. Again the evidence regarding these incidents was vague and seemed to be engendered more by the Williams children's dislike of Ms. Lyons and anything she did, as well as a biological mother who was frantic over her children. Additionally, the evidence regarding the Bible verses was equivocal as to the appropriateness of such an action given the historical nature of the Muslim and Christian religions' roots in the Old Testament. Ms. Lyons also brought the children to work with her. At that time she was employed cleaning offices after hours, and she put the children to work cleaning toilets, sinks and vacuuming the floor. However, there was no convincing evidence that these activities were inappropriate in any way. On the other hand, Ms. Lyons called Rasheen "stupid." One of these name-callings escalated into an argument with Rasheen, which Ms. Lyons ended by calling a policeman friend of hers to talk to him about showing respect. Ms. Lyons did not intend this name to be abusive, but it was readily apparent that the children took the names as derogatory. The use of such references demonstrates poor judgment in caring for foster children. Ms. Lyons also had punished Shykimma for bedwetting by making her stay in her room for the rest of the day, which violates the disciplinary code for foster parents. Such punishment is a clear violation of HRS's disciplinary code for foster parents. Finally, Ms. Lyons spanked Rasheen with a flip-flop shoe for spilling rice on the floor. Again Ms. Lyons knew such discipline violated the HRS disciplinary code for foster parents. Additionally, Ms. Lyons had been warned earlier about using corporal punishment on a foster child when HRS had learned about Ms. Lyons slapping Dorinda Small. The Williams children were removed from Ms. Lyons home in August 1991. At that time, Sue Brown, supervisor of the foster care licensing unit went to Ms. Lyons' home to discuss with her the problems with the Williams' placement. During the discussion, Ms. Lyons admitted to punishing Shykimma for wetting the bed by making her stay in her room for 35 minutes. Ms. Brown pointed out that children are not to be punished for bedwetting problems, but Ms. Lyons had no response. Ms. Brown spoke to the Williams children after meeting with Ms. Lyons, and they expressed near hatred for Ms. Lyons. They said she was very demanding and that they never wanted to go back there. In this case, it is fairly apparent that HRS is tired of trying to work with Ms. Lyons as a foster parent and that in its attempt not to relicense her the Department listed every perceived "affront" of Ms. Lyons towards HRS. Most of these complaints were spurious and could not form the basis for an adverse licensure decision. However, HRS did succeed in demonstrating that Ms. Lyons committed at least three willful violations of the rules governing foster care parents. Those violations were punishment for bedwetting, name calling and two incidents of administering corporal punishment. Moreover, because these violations were willful and in disregard of the disciplinary rules of HRS of which Ms. Lyons had knowledge, Ms. Lyons is not qualified for licensure.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law it is therefore RECOMMENDED: that the Department deny Petitioner's application for relicensure as a foster home. DONE and ORDERED this 28th day of October, 1994, in Tallahassee, Florida. DIANNE CLEAVINGER 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 28th day of October, 1994. APPENDIX 93-5975 The facts contained in paragraphs 1, 4, 8 and 22, of Petitioner's Findings of Fact are adopted in substance, insofar as material. The facts contained in paragraphs 2, 3, 5, 6, 7, 10, 11, 12, 13, 15, 16, 17, 18, 19, 20 and 21 of Petitioner's Proposed Findings of Fact are subordinate. The facts contained in paragraphs 9 and 14 of Petitioner's Proposed Findings of Fact were not shown by the evidence. The facts contained in paragraphs 1, 2, 5, 6, 7, 9 and 10 of Respondent's Proposed Findings of Fact are adopted in substance, in so far as material. The facts contained in paragraphs 3, 4, 8 and 11 of Respondent's Proposed Findings of Fact are subordinate. COPIES FURNISHED: Ann Corya Curvin, Esquire Assistant District Legal Counsel Department of Health and Rehabilitative Services 160 Governmental Center Pensacola, Florida 32501 Fredrick Gant, Esquire Allbritton & Gant 322 West Cervantes Street Pensacola, Florida 32501 Robert L. Powell, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, Florida 32399-0700 Kim Tucker General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, Florida 32399-0700
Findings Of Fact On February 2, 1996, Respondent preliminarily established that Petitioner was disqualified to be a foster parent within the definition of "family foster home" contained in Section 409.175(2), Florida Statutes. The denial was based upon Petitioner's failure to meet minimum screening requirements for "good moral character" specified by Section 435.04(2), Florida Statutes. Petitioner's testimony at the final hearing establishes that an incident occurred in a public bathroom where, as a result of a verbal interchange between Petitioner and a policeman, Petitioner was arrested for the offense of "offering for lewdness" in violation of Section 796.07, Florida Statutes (1989). The offense occurred on August 24, 1990. Petitioner subsequently absenced himself from the State of Florida, obstensibly to be at the bedside of his ill father in North Carolina. Following his later return to Florida, Petitioner appeared in court on September 14, 1993, where he was placed on probation, paid a fine and obtained a medical test to determine whether he was infected with the HIV virus. Petitioner and his wife presently care for his godchild, a minor female of eight months of age, and wish to be licensed by Respondent as foster parents. The licensure process required that Petitioner undergo background screening.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered denying Petitioner an exemption from disqualification to work with children in positions of special trust. DONE and ENTERED in Tallahassee, Florida, this 25th day of June, 1996. DON W. DAVIS, 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 25th day of June, 1996. APPENDIX In accordance with provisions of Section 120.59, Florida Statutes, the following rulings are made on the proposed findings of fact submitted on behalf of the parties. No Proposed Findings Were Submitted. COPIES FURNISHED: Roger L.D. Williams, Esquire District 4 Legal Office Department of Health and Rehabilitative Services Post Office Box 2417 Jacksonville, Florida 32231-0083 Gerald Gregg 2527 Red Robin Drive East Jacksonville, Florida 32210 Gregory D. Venz, Agency Clerk Department of Health and Rehabilitative Services Building 7, Suite 728 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard Doran, Esquire Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
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
