The Issue Whether the Petitioner is entitled to an award of attorney's fees and costs pursuant to Section 57.111, Florida Statutes.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department is the state agency responsible for licensing and regulating foster homes. Mrs. Sampson operated a Childrens' Medical Services ("CMS") medical foster home for children with special medical, emotional and physical needs, and was licensed by the Department as either a CMS medical foster home or as a regular foster home from 1990 until November 1997. At some point in 1996 or 1997, Mrs. Sampson voluntarily ceased operating as a CMS medical foster home, but continued to operate as a regular foster home. There was conflicting evidence as to the precise date of this change, but the date is not relevant to this phase of the bifurcated proceeding. On March 2, 1998, the Department filed an Administrative Complaint that sought to revoke Mrs. Sampson's foster care license. On October 6, 1999, the Department filed an Amended Administrative Complaint. The Department also denied Mrs. Sampson's application to adopt one of the foster children in her care. Mrs. Sampson requested a formal administrative hearing on both the revocation of her foster care license and the denial of her adoption application. The cases were consolidated, and a formal administrative hearing was held over several dates in April, May, and June 2000. Mrs. Sampson prevailed on all issues in the consolidated cases. A Recommended Order in her favor was entered on August 11, 2000. A Final Order adopting the findings of fact and conclusions of law in the Recommended Order was entered on October 2, 2000. Mrs. Sampson contends that she is a "small business party" as defined in Subsection 57.111(3)(d)1.a, Florida Statutes, which provides that the term "small business party" includes: A sole proprietor of an unincorporated business, including a professional practice, whose principal office is in this state, who is domiciled in this state, and whose business or professional practice has, at the time that action is initiated by a state agency, not more than 25 full-time employees or a net worth of not more than $2 million, including both personal and business investments. . . . At all times relevant to this case, Mrs. Sampson was domiciled in the State of Florida. At all times relevant to this case, Mrs. Sampson was licensed as a Licensed Practical Nurse ("LPN"). The determinative issue is whether Mrs. Sampson's operation of a foster home establishes her as the sole proprietor of an unincorporated business or professional practice. Mrs. Sampson initially operated her medical foster home for the benefit of one child, who was admitted to Tampa General Hospital while Mrs. Sampson worked there as a contract nurse. The child was born prematurely and was not expected to live longer than six weeks. Mrs. Sampson became a licensed foster parent to take this child home and care for him. Under her care, the child thrived. Though he survived the initial crisis, the child continued to require full-time nursing care. Mrs. Sampson was not able to return to full-time employment as a contract nurse outside the home. Mrs. Sampson testified that she advised the Department's case workers that she would need to take in additional medical foster children to supplement her income while she worked at home caring for the children. Over a period of eight years, the Department placed at least 14 medically needy foster children in Mrs. Sampson's home. The Department establishes foster home care board rates, which are standard reimbursements to foster parents for the expenses incurred for the foster children, such as food, clothing, medical care, and transportation. The board rates are minimums that can be increased by the Department if the needs of the foster child cannot otherwise be met. Mrs. Sampson received an enhanced board rate for at least some of the children in her care. The Department conducts orientation meetings for and training of prospective foster parents. The Department emphasizes that the purpose of foster parenting is to provide temporary surrogate parenting for the foster children. The prospective parents are informed that they are considered volunteers and will not be paid for their services. The parents are told that the board payments are for the childrens' expenses. Foster parents sign an agreement acknowledging that the board payments are "on behalf of the child." Rule 65C-13.011(4), Florida Administrative Code, expressly provides that substitute care parents must have sufficient income to assure the stability and security of their own families without reliance on the board payments, and that the substitute family must have sufficient income to absorb four to six weeks of a foster child's care before receiving a board payment. If the Department removes a child from a foster home, the board payment to the foster payment ceases. If the child is placed with a new foster parent, then the board payment goes to the new foster parent. In addition to the regular and enhanced board payments, a CMS medical foster parent may receive payments from Medicaid as reimbursement for medically necessary services rendered to the foster children. Mrs. Sampson was a designated Medicaid provider from April 1992 through March 1997. Mrs. Sampson contended that these Medicaid payments were for the nursing services she provided to the children, just as physicians receive Medicaid payments for treatment of eligible patients. However, medical foster parents are not required to be licensed medical professionals. Mrs. Sampson offered no evidence that the Medicaid payments were for her services as an LPN, or that private, residential LPN services even qualify for Medicaid reimbursement absent prior authorization. CMS-administered medical foster care services are authorized for Medicaid reimbursement, and the best evidence is that Mrs. Sampson was reimbursed as a medical foster care provider, not as an LPN. The Department established that Mrs. Sampson did not hold herself out as running a business, nor did she report as income on her federal tax return the payments received in connection with providing foster care. Mrs. Sampson testified that she hired part-time employees to assist her in caring for the children, but she did not withhold federal income tax or Social Security taxes from their pay and did not file W-2 wage statements for them. Mrs. Sampson explained her failure to report her board payments as income by reference to 26 U.S.C. s. 131, which excludes foster care payments from reportable gross income. This citation justifies her failure to report, but also supports the Department's contention that foster care payments should not be considered business income. Mrs. Sampson implicitly conceded that her foster home did not possess any of the common indicia of a business. Her chief contention was that from 1970 to 1990, she worked as an LPN through nursing agencies, caring for sick children in hospitals or in their homes, and that from 1990 to 1997, she worked as an LPN caring for medical foster children in her own home. In other words, Mrs. Sampson contended that by operating the foster home, she was continuing to practice her profession in a different setting. She gave up the income from her practice as an LPN through nursing agencies in favor of the income she received as an LPN acting as a medical foster parent.
The Issue Whether Petitioner, the holder of a family day care home registration, has violated Respondent's minimum standards for child care providers by failing to directly supervise an infant in her care on March 22, 2006, and whether her registration should be revoked, pursuant to Section 402.310(1), Florida Statutes.1
Findings Of Fact Petitioner, Jacqueline Bizzell, has been operating a child care facility in her home, at the same location, since 1992. She has been a registered family day care home with Respondent since January 30, 2001. As a part of her application to be a registered family day care home provider, Petitioner sent Respondent verification that she completed the required training for child care providers, which includes knowledge of Respondent's rules and regulations in the area governing child care. On January 26, 2006, Petitioner was informed that her family day care home was again registered for one year, effective January 30, 2006. In the letter, Petitioner was informed that she must maintain her registration in accordance with Section 402.313, Florida Statutes (2005). On March 24, 2006, Respondent received an allegation of neglect or abuse that took place at Petitioner's family day care home on March 22, 2006. Rivers Lewis (Lewis) was a child protective investigator for Respondent on the date of the allegation. He conducted an investigation of the allegation and completed a report. As a part of the investigation, Lewis spoke directly with Petitioner who stated that on March 22, 2006, the child was the only child in her care the day of the incident, and that she left him sleeping on her bed and went into the hallway in front of another room to do laundry or to do something else. Petitioner told Lewis that as soon as she heard the child cry, she stepped back into the room to find that he had fallen from the bed. Petitioner said, first, that the child had fallen off the bed, but later stated that the child had been on the side of the bed and was hanging onto the covers. Lewis submitted his investigative report on April 27, 2006, concluding that the case could be closed with verified indicators of "inadequate supervision" by Petitioner. Shortly after Lewis submitted his report, Ivette Garcia, Child Care Licensing Administrator, received a copy and reviewed it with another worker. She sent Petitioner a letter, dated May 10, 2006, stating that: "The purpose of this letter is to advise you that effective immediately, your family day care home is closed and that your registration is no longer valid." The closure was based upon the incident that occurred on March 22, 2006, wherein the investigative report, submitted by Lewis, confirmed indicators of inadequate supervision. No further investigation or other action was conducted by the child care licensing section in DCF's District 7 before the letter was sent. Although Garcia testified at the hearing that inadequate supervision of a child is a Class I violation, the highest violation, Petitioner was not specifically advised of such classification in the May 10, 2006, letter, nor was a finding made of an immediate serious danger to the health, safety, or welfare of the children who are enrolled in Petitioner's home. Respondent's District 7 Child Care Licensing office did not go to Petitioner's home to inspect or verify the report. It had no further communication with Petitioner after said date. Petitioner was not charged with causing injury to a child under her supervision. Garcia testified that due to the limitations of the registration statute (§ 402.313, Fla. Stat.), Respondent had only one option to deal with a Class I violation: immediately close the home and invalidate the registration. Petitioner's family day care home operated under the name: Hi Granny Day Care. She had only one child in her home on March 22, 2006, the eight-month-old boy, Markel. The child had been fussy and throwing up all day. At about 4:00 p.m., she put the child in the middle of her bed when he finally went to sleep. The bed was by the door. She stepped across the hall to do some chores and while standing at the door, in front of the playroom for about 14 or 15 minutes. When she heard a noise, she immediately stepped back into the room. She admits that she said to the investigator that he fell out of the bed, but that he really did not fall to the floor, but slid off of the bed and was dangling from the bed when she came back into the room; and a blanket broke his fall. She provided a handwritten diagram of her home as it appeared on the date of the incident. Petitioner had been taking care of Sherina Clemons' eight-month-old son, Markel, for over two months when the incident occurred. On March 22, 2006, Petitioner called her between 4:45 p.m. and 5:00 p.m. asking Clemons to not be mad at her. Petitioner told her that the child had been asleep when she placed him on her bed, but that when she walked out of the room, he must have awakened and fallen off of the bed landing on a pallet of covers. According to Latoya Marion, Children's Home Society, the Petitioner's reputation in the community was very good as a child care provider. Latisha Rashawn Bell has known Petitioner for about three years and Petitioner cared for her daughter in 2006. She came to Petitioner's home on March 22, 2006, later in the evening, and knocked on the door. Petitioner came to the door, holding the child, who was whining or crying. Petitioner told her that the child had fallen out of the bed, but had not landed on the floor. Chakera Angelette Faniel is a child care provider, who is not employed by Petitioner. Petitioner cared for Ms. Faniel's daughter for the first three years of her daughter's life, but no longer does. She has known Petitioner for about five years and knows her to be a caring and loving person. Petitioner has a very good reputation in the community as a child care provider. The clear and convincing evidence demonstrates that late in the afternoon of March 22, 2006, Petitioner placed a sleeping eight-month-old boy in the middle of her king-size bed, which was located in her bedroom near the door. Petitioner stepped across the hall and did some chores, while standing in front of the playroom for about 14 or 15 minutes. Although she was only three or four feet from the child, Petitioner could not see the child from where she was standing. When she heard the child cry, she immediately stepped back into the room and found the child lying on some covers on the floor. She picked the child up, who did not appear to be injured. Shortly thereafter, Petitioner contacted the child's parents and reported the incident to them. The child's mother arrived later and took the child home. The evidence is clear and convincing that Petitioner failed to provide direct supervision of the child while he was napping, in the late afternoon, on March 22, 2006. The evidence is clear and convincing that Petitioner is a long-term child care provider, who obviously gives compassionate care to the children in her care. There have been no prior reported incidents of neglect or abuse filed against Petitioner, nor were prior deficiencies listed. Petitioner enjoys a good reputation as a child care provider in her community. Except for the incident on March 22, 2006, no evidence was presented that Petitioner presented an immediate serious danger to the public health, safety, or welfare to the children who are enrolled in her family day care home.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: The Secretary of the Department of Children and Family Services issue a final order as follows: Finding Petitioner guilty of a single violation of the provisions of Florida Administration Code Rule 65C-22.001(5)(a) and (b) on March 22, 2006; Imposing an administrative fine of $100; and Immediately reinstating Petitioner's family day care home registration for a period of 264 days and permitting Petitioner the opportunity to submit an application for renewal of her family day care home registration at the appropriate time. DONE AND ENTERED this 13th day of April, 2007, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of April, 2007.
Findings Of Fact Florida Baptist Children's Homes (hereinafter "FBCH") is a multi- service agency providing residential care, foster care, maternity care, and adoptions. FBCH is licensed by the Department as both a child-caring agency and as a child-placing agency. Children are referred to that agency both as voluntary placements and as non-voluntary placements. With voluntary placements, arrangements are made directly between FBCH and the child's family or guardian. With non-voluntary placements, the placement is made either by the Department or by a court. The general mix of FBCH clients in its foster homes is 50 percent voluntary placements and 50 percent Departmental placements. None of those foster children are pregnant. If a pregnant child comes to FBCH for voluntary placement in a foster home due to that client's pregnancy, that client is not considered eligible for foster care in one of FBCH's licensed foster homes; rather, that pregnant child is placed in what FBCH calls its maternity foster care program. FBCH considers its foster care program and its maternity foster care program to be two different program areas. Both the foster care program and the maternity foster care program of FBCH are operated under the same traditional foster care concept. In both foster care and maternity foster care, FBCH's clients are placed in a private home with a family wanting to assist children in need of homes. FBCH does operate a maternity group home in Lakeland, Florida. Since this is the only maternity group home operated by FBCH, it provides maternity care elsewhere in the state of Florida through the vehicle of foster homes which offer "maternity foster care" to pregnant children. Foster homes are licensed by the Department in accordance with its licensure Rule 10M-6, Florida Administrative Code. Maternity homes are institutions, rather than private single family dwellings. Maternity homes serve a larger number of residents and offer more intense services. They are more expensive to operate than traditional foster homes. Maternity homes are licensed by the Department pursuant to licensure Rule 10M-9, Florida Administrative Code, which applies to residential group care. When pregnant children are brought to FBCH for voluntary placement in FBCH's maternity foster care program, the decision has already been made that the child will not have an abortion. The pregnant child comes to FBCH to be cared for through the time of delivery of her child. During her stay, she will receive counseling concerning whether she should keep her baby or place the baby for adoption. Services required to be provided to children in foster homes and child- caring agencies licensed by the Department are set forth in Departmental rules governing the operation of such homes and institutions. The specific services to be provided once such a home or agency has been licensed are set forth in different rules than the rules regulating the licensure process. Although the Department issues the license to family foster homes used solely by child-placing agencies such as FBCH and investigates complaints about such homes, responsibility for recruitment, assessment, training of staff, and supervision of these homes lies with the child-placing agency, and almost all placements are voluntary. In other words, the Department maintains no control or influence as to what the privately-placed pregnant children are taught about planned parenthood, if anything. The Department is considering the private single-family dwelling at 10061 Southwest 158 Terrace, Miami, Dade County, Florida, for licensure as an FBCH maternity foster home. The persons to be placed in that residence as the foster parents would care for five pregnant children between the ages of 11 and 17, with the provision that for a period of time after giving birth, their babies could also reside in that home. The average length of stay of clients in FBCH maternity foster homes is 3 1/2 - 4 months. Petitioner lives directly across the street from the residence the Department intends to license as a maternity foster home. Petitioner fears that the constant turnover of five pregnant teenagers will interfere with his right to quiet repose, will cause his neighborhood to be besieged by crime, and would, therefore, impair his and his neighbors' ability to detect and control criminal activity in the neighborhood.
The Issue Whether the Petitioner, Gwen McClain, meets the requirements of the Respondent, the Department of Health and Rehabilitative Services, for relicensure as an adult foster home sponsor.
Findings Of Fact Ms. McClain's home has been licensed as an adult foster home by the Department for approximately one year prior to April, 1992. Ms. McClain's husband, Jay McClain, resides with her. At the time of the final hearing of this matter, Ms. McClain provided a home for three adults who were mentally retarded or developmentally disabled. On or about October 31, 1991, Ms. McClain, her husband and a neighbor drove a man from Ms. McClain's home to Georgia. The man was not a family member or even a close friend of Ms. McClain. During the final hearing Ms. McClain described the man as someone her husband worked with. Ms. McClain's neighbor drove the vehicle in which the man was taken to Georgia. Ms. McClain and her husband were passengers. Ms. McClain was aware at the time that she rode to Georgia that the man had shot and wounded another man earlier that evening. Although the man that was shot ultimately died, Ms. McClain was not aware of his death at the time she accompanied the man to Georgia. Ms. McClain and her husband were eventually charged with criminal conduct as a result of the incident described in finding of fact 3. The evidence, however, failed to prove when she or her husband were charged or what she or her husband were charged with. The evidence failed to prove that the Department has adopted any rule which required that Ms. McClain disclose to the Department that she or her husband had been involved in the incident described in finding of fact 3 or that she or her husband had been charged with a crime as a result of the incident. At some time prior to April 1, 1992, probably in February, 1992, Ms. Gwen Howell, a Human Services' Counselor III for the Department, read an article in the Jasper News reporting the incident described in finding of fact 3. Ms. Howell had been at Ms. McClain's home at least once between October, 1991, and the date when Ms. Howell read about the incident in the newspaper. Ms. McClain had not mentioned the incident to Ms. Howell. Ms. Howell confronted Ms. McClain about the incident described in finding of fact 3 sometime shortly after reading the newspaper article. Ms. McClain, when asked about the incident, responded "how did you know?" The weight of the evidence failed to prove, however, what Ms. McClain may have meant by this statement. It is not, therefore, apparent whether Ms. McClain made the comment because she was merely curious where Ms. Howell had heard about the incident, because she had been hoping that Ms. Howell would not find out about the incident or for some other reason. When confronted by Ms. Howell, Ms. McClain admitted her involvement in the incident described in finding of fact 3. Ms. McClain also admitted her involvement in the incident to Carter Bass, Ms. Howell's immediate supervisor at some time before April, 1992. Ms. McClain was remorseful for her involvement, admitted she had exercised poor judgement and admitted that she had not thought of the consequences of what she had done. On or about March 31, 1992, Ms. McClain signed an Adult Foster Home Annual Renewal Application (hereinafter referred to as the "Renewal Application"). DHRS exhibit #1. The Renewal Application was received by the Department on or about April 1, 1992. The evidence failed to prove that Ms. McClain did not accurately provide all information requested on the Renewal Application. No where on the Renewal Application was Ms. McClain asked any question concerning whether she or her husband had been charged with any crime or whether she or her husband had been involved in any incident similar to the one described in finding of fact 3. Nor has the Department cited any rule which required that Ms. McClain make such a disclosure on the Renewal Application. At the time that Ms. McClain filed the Renewal Application she had admitted her involvement in the incident to Ms. Howell, the Department's employee responsible for investigating and making the initial recommendation concerning the Renewal Application, and Mr. Bass, the Department's employee responsible for recommending to the Department's district office whether the Renewal Application had been approved. The Department was, therefore, on notice of the incident when Ms. McClain filed the Renewal Application. Ms. McClain and her husband had not been adjudicated guilty of any crime at the time the Renewal Application was filed. On April 20, 1992, Ms. McClain plead, and was adjudicated, guilty of the crime of obstructing an officer without violence as a result of the incident described in finding of fact 3. Ms. McClain was sentenced to one year of supervised probation. The weight of the evidence failed to prove that the crime for which Ms. McClain was adjudicated guilty involved "harm to others." Also on April 20, 1992, Ms. McClain's husband plead, and was adjudicated, guilty of the crime of accessory after the fact to second degree murder as a result of the incident described in finding of fact 3. Ms. McClain's husband was also sentenced to one year of supervised probation. The weight of the evidence failed to prove that the crime for which Ms. McClain's husband was adjudicated guilty involved "harm to others." At some time prior to June 5, 1992, Mr. Bass recommended to James Godwin, a program administrator in the Department's district office, that the Renewal Application not be approved. Mr. Godwin exercised his authority to deny the Renewal Application and instructed Mr. Bass to so inform Ms. McClain. By letter dated June 5, 1992, the Department notified Ms. McClain that the Renewal Application was being denied for the following reason: Your application for relicensure as an Adult Foster Home Sponsor has not been recommended for approval at this time for the following reason: You do not meet the Adult Foster Home Sponsor Qualifications as per HRS Manual 140-11, Page 5-12, Paragraph 5-5d. A foster home sponsor should be free of confirmed reports of abuse, neglect or exploitation or any crime involving harm to others. At the final hearing the Department stipulated that Ms. McClain, except as set out in the Department's letter of June 5, 1992, meet the other requirements for relicensure. HRS Manual 140-11, Page 5-12, Paragraph 5-5d, provides the following requirement for licensure as an adult family home sponsor: d. a foster home sponsor should be free of confirmed reports of abuse, neglect, or exploitation or any crime involving harm to others. At the final hearing, the Department also suggested that the Renewal Application was properly denied because Ms. McClain had shown a lack of judgement. The Department, therefore, suggested that Ms. McClain did not meet the requirements of HRS Manual 140-11, Page 5-12, Paragraph 5-5c, which provides: c. A foster home sponsor should be of suitable physical and mental ability, to the extent that he is able to provide care and supervision appropriate for the clients he serves; be capable of handling an emergency situation promptly and intelligently; and be willing to cooperate with the department staff. Although the Department had not previously informed Ms. McClain that paragraph 5-5c also formed part of the reason for denying the Renewal Application, Ms. McClain raised no objection to the evidence concerning this issue presented by the Department. More importantly, it does not appear that Ms. McClain was prejudiced in any way by not being informed of the issue prior to the final hearing. Based upon the weight of the evidence, Ms. McClain's actions during the incident described in finding of fact 3 evidenced a lack of ability to react to a unusual and surprising situation in a calm and rational manner and to make an appropriate decision as to how to respond to the situation. Ms. McClain's actions, therefore, evidence a lack of ability to handle an emergency situation promptly and intelligently. Based upon the testimony of the mothers of two of the adults currently under Ms. McClain's care and four of the six Department employees who testified in this proceeding, Ms. McClain has provided good care to the adults residing in her home.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED the Department enter a final order denying Ms. McClain's Renewal Application and dismissing, with prejudice, Ms. McClain's petition in this case. DONE and ENTERED this 9th day of October, 1992, in Tallahassee, Florida. LARRY J. SARTIN 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 9th day of October, 1992. APPENDIX The Department has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Ms. McClain did not file a proposed recommended order. The Department's Proposed Findings of Fact Findings of fact 1 and 10. Finding of fact 12. The last sentence is not relevant. See findings of fact 11 and 13. Not relevant. See findings of fact 11 and 13. Findings of fact 14 and 15. See finding of fact 3. The evidence failed to prove that the man was taken to Texas. The only testimony concerning where the man was taken after he was taken to Georgia was hearsay. Findings of fact 6-9. The fact that Ms. McClain had not voluntarily disclosed the charges against her is irrelevant. The Department has failed to cite any authority which requires that she make such a disclosure. The only rule referred to by the Department during the hearing required disclosure after a conviction. The Department was fully aware of the charges and the incident prior to any adjudication of guilt in this case. See finding of fact 8. Finding of fact 9. Finding of fact 23. Hereby accepted. Findings of fact 9 and 16. Finding of fact 16. COPIES FURNISHED TO: Gwen McClain Post Office Box 314 Jennings, Florida 32053 Ralph McMurphy Assistant Legal Counsel District 3 Legal Office Department of Health and Rehabilitative Services 1000 N.E. 16th Avenue Gainesville, Florida 32609 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, Florida 32399-0700 John Slye Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, Florida 32399-0700
Findings Of Fact At all times pertinent hereto, the Respondents were operating a shelter home in Opa Locka, Florida, pursuant to License 290-12-5 that had been issued by Petitioner. Respondent W.G. is the husband of Respondent G.G. On December 27, 1990, Petitioner received a report in its central abuse center in Tallahassee of alleged child abuse by Respondents at their shelter home in that Respondents were verbally abusing a 17-year-old female that had been placed in their shelter home. Protective services investigator David K. Welch immediately began an investigation of this alleged abuse. He visited the shelter home. Respondent G.G. was present in the shelter home when Mr. Welch made his visit to the home, but she was not in the same room with the children who had been temporarily placed in the custody of the Respondents. At the time of Mr. Welch's visit, Respondent G.G. was present in the home and was providing adequate supervision. Mr. Welch spoke with the Respondents about the allegations of verbal abuse and concluded that the allegations were "indicated". Mr. Welch found insufficient evidence upon which to base a conclusion that the allegation of verbal abuse should be closed as "confirmed". During the course of his investigation, Mr. Welch learned of reports from three other protective services investigators of allegations that Respondents often left the children who had been placed in their temporary custody without adequate supervision. The three reports, upon which Mr. Welch relied, were from Fidelis Ezewike pertaining to an incident on September 24, 1990, from Iris Silien pertaining to an incident on December 28, 1990, and from Michael Blum pertaining to an incident on an unspecified date in late 1990. At no time did Mr. Welch advise Respondents as to allegations of abuse in the form of inadequate supervision or ask them to explain the arrangements they make for the supervision of the children when they are both away from the foster home. The abuse report listed two victims of the alleged neglect, M.L., a female born in February 1974, and L.G., a female born in August 1975. Neither of these alleged victims testified at the formal hearing. Mr. Welch had no first had knowledge of the three incidents upon which he relied to close the report as a proposed confirmed report of child abuse based on neglect from inadequate supervision. Mr. Ezewike did testify as to the incident of September 24, 1990. Although he found children in the foster home temporarily without adult supervision when he arrived there, he later that day discussed the matter with the Respondents. Respondents explained their temporary absence from the foster home to Mr. Ezewike. Mr. Ezewike was satisfied with the explanation given by the Respondents and was of the opinion that the absence of the Respondents did not merit the filing of an abuse report based on the failure to provide adequate supervision.2/ Ms. Silien did not testify at the formal hearing. There was no competent, substantial evidence to establish that Respondents failed to provide adequate supervision to the identified victims on the date Ms. Silien visited the foster home. Mr. Blum did not testify at the formal hearing. There was no competent, substantial evidence to establish that Respondents failed to provide adequate supervision to the identified victims on the date Mr. Blum visited the foster home. Respondents' son-in-law testified that he was present at the foster home on the date of Mr. Blum's visit and that he explained to Mr. Blum that he was supervising the children temporarily at the request of Respondents. The uncontradicted testimony was that when Respondents have to be away from the foster home on a temporary basis, they entrust the supervision of the children in their custody to their daughter and her husband, who live in close proximity to Respondents and who had agreed to be responsible for supervising the children. Petitioner failed to establish that the temporary arrangements Respondents made for the supervision of the children in their absence from the foster home was inadequate.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which amends FPSS Report No. 90- 1333485 to reflect the findings contained herein, which closes said report as unfounded, and which expunges the names of the Respondents as confirmed perpetrators from the central abuse registry. DONE AND ORDERED this 2 day of June, 1992, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 2 day of June, 1992.
The Issue Should Respondents' application for annual renewal of their foster care license be denied?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Department is the Agency of the State of Florida charged with the responsibility of licensing family foster homes. Respondents were first licensed as a foster home by the Department in February 1999. At the time of the initial licensure in February 1999, the Department was aware that Respondents owned a large Rottweiler dog. However, the issue of the dog was resolved, and the Department issued Respondents their initial license and renewed their license in February 2000. At the time of the initial licensure in February 1999, and the renewal in February 2000, Respondents had an in-ground swimming pool located in their backyard. Apparently, the lack of a proper barrier around the pool, as required by the Department rule, was not an issue since the Department issued the initial license in February 1999, and renewed that license in February 2000. On November 6, 2000, Respondents filed an application with the Department for renewal of their foster home license. On November 6, 2000, Cheryl Dishong, the Department's foster care licensing worker, visited Respondents' home and determined that Respondents were caring for nine children in their home which included: (a) four foster children placed in Respondents' home by the Department; (b) Respondents' two natural children; (c) Respondents' two adopted children; and (d) one child, no relation to Respondents, which they were caring for due to the child's mother having been incarcerated. However, this child is no longer in the home except for visiting. Respondents never attempted to a seek waiver to exceed the "rule of five" set out in Rule 65C-13.001(a), Florida Administrative Code, for good cause as provided for in Rule 65C-13.011(1)(b), Florida Administrative Code. On December 8, 2000, Mazen Omari, sanitation inspector with the Polk County Heath Department, inspected Respondents' home and found the following: (a) the carpet in the living room and the bedrooms needed cleaning and the kitchen needed cleaning (there were dirty dishes in kitchen sink); (b) the children's bedrooms needed cleaning and their clothes needed to be put in a proper place; and (c) the fire extinguisher needed an up-to-date inspection tag. Respondents did not advise the Polk County Heath Department that the violations noted by Omari on December 8, 2000, had been corrected. Therefore, the Polk County Health Department did not provide the Department with an approved Sanitation Report. On January 3, 2001, Cheryl Dishong visited Respondents' home. During this visit, Dishong determined that Respondents had not corrected the sanitary violations cited by Omari on December 8, 2000. Dishong found that Respondents' fire extinguisher had been used but had not been recharged. Dishong observed: (a) dirt, dirty handprints, and crayon markings on the walls throughout the house; (b) dirty carpet throughout the house; and (c) general clutter, with piles of clothes on the floor in the laundry room. Cheryl Dishong visited Respondents' home again on January 12, 2001, and observed that not all of the sanitary violations cited by Omari on December 8, 2000, had been corrected. Dishong also observed: (a) the house being in "general disarray;" (b) a bed frame in one of the rooms which needed to be stored where it would not constitute a danger to the children's safety; (c) zippy cups and clothing strewn about; and (d) debris, including chair cushions and "other things" scattered all over the yard, which could be considered as constituting a danger to the children's safety. Dishong visited Respondents' home again on January 22, 2001, and observed that not all of the sanitary violations cited by Omari on December 8, 2000, had been corrected. Dishong also observed some hazardous household cleaning chemicals that were not locked up to prevent access by the children. However, Respondents had purchased a lock, and it appeared that they were in the process of installing the lock on the cabinet door to prevent access to the chemicals by the children. In the front yard, Dishong observed: (a) a garden hose lying across the walkway in two places; (b) a metal rectangular bar lying across the walkway which two of the boys were throwing back and forth; (c) a toy lawnmower under the family van; and (d) garbage items such as open bean cans and pieces of cement scattered "all about.” In the backyard, Dishong observed: (a) a trampoline beside the swimming pool; (b) items scattered throughout the backyard, including chair cushions; (c) that there was no barrier around the swimming pool as required by Department rule; (d) and that the pool was covered by green algae. All of the things observed by Dishong at Respondents' home on January 22, 2001, could be considered as constituting a danger to the children's safety. Respondent Troy Allen testified that there was a fence installed on three sides of the swimming pool and that the house served as a barrier on the fourth side. However, there were no safety features, such as those listed in Rule 65C-13.01(12)(c), Florida Administrative Code, installed on the exits from the house to the swimming pool to prevent the children from having access to the swimming pool only when supervised. Therefore the swimming pool was readily accessible to the children from the house when unsupervised. Respondents own a Rottweiler dog, and had owned such a dog from the beginning of their licensure in February 1999. The dog was present at Respondents home on each occasion that Dishong visited Respondents' home. An earlier safety plan, agreed to by Respondents, required that the dog be kept outside, or restricted from the children, unless supervised while in the presence of the children. There was no evidence that this agreement had been violated by Respondents. This dog might be what Dishong considers to be a "large pet." However, other than Dishong's description of the dog as being a "large dog" and estimating its weight to be 125 pounds, there was no evidence that the dog met the definition of "large" as anticipated by the Department's rule. Likewise, there was no evidence to show that this particular dog was potentially dangerous. Shortly before the hearing, Respondents had new carpet installed through out the house where appropriate, the walls stripped and painted, tile installed in areas where carpet was not appropriate, and some new furniture installed, which included a replacement for the bed frame that was noted as a violation. By letter dated February 20, 2001, the Department notified Respondents that their application for renewal of their foster home licensure had been denied.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a final order denying Respondents application for the annual renewal of their foster care license. DONE AND ENTERED this 24th day of September, 2001, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of September, 2001. COPIES FURNISHED: Troy Allen Rebecca Allen 4514 Scottswood Drive Lakeland, Florida 33813 Jack Emory Farley, Esquire Department of Children and Family Services 4720 Old Highway 37 Lakeland, Florida 33813-2030 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
Findings Of Fact The Respondent, Jeanette Dilligard, is licensed to operate the Dilligard Foster Home for children located at 1751 N.W. 76th Street in Miami, Florida. In the summer of 1985, W. T., age 11, L. I., age 9 and P. F., age 8, were placed in Ms. Dilligard's care by DHRS. While the children were in Ms. Dilligard's care, they were frequently and consistently given physical punishments and beatings. Each child would receive some form of physical punishment at least once a week. Ms. Dilligard used an electrical extension cord and a white belt when administering the beatings. The beatings would last about 5 minutes, sometimes leaving cuts and bruises on the children. The punishments were usually administered for fairly insignificant transgressions by the children. On one occasion, Ms. Dilligard had taken the children with her to a laundromat and L. I. accepted a piece of chewing gum from another person that was there. When Ms. Dilligard and the children returned home, L. I. was given a beating for "accepting food from a stranger." On another occasion, P. F. was eating sunflower seeds and left some of the empty shells on the floor. Ms. Dilligard administered a beating to P. F. for that offense. On yet another occasion, P. F. received a beating when she brought home a bad school report card. On November 19, 1985, W. T. lost a key to the house which he was given by Ms. Dilligard. Ms. Dilligard had previously told W. T. that if he lost the key, he could be given a beating. That evening, W. T. and his two sisters planned that they would run away from Ms. Dilligard's home the next day. On the morning of November 20, 1985, the three children ran away and went to their aunt's house. After the children left Ms. Dilligard's home, they were interviewed by the child protection team in Dade County and taken to Jackson Memorial Hospital for a medical examination. The physician's report indicated that both P. F. and L. I. had multiple bruises, scratches and abrasions on their legs and back which were non- accidental type injuries consistent with their allegations of physical beatings. Prior to receiving her license to operate a foster home, Ms. Dilligard was specifically advised, during a Foster Parent Training Program, of DHRS' policy that any form of physical punishment in the foster home setting was prohibited.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is, RECOMMENDED: That Jeanette Dilligard's license to operate a family foster home be REVOKED. DONE AND ORDERED this 12th day of January, 1987, in Tallahassee, Florida. W. MATTHEW STEVENSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of January, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-1907 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in substance in finding of fact 3. Adopted in substance in finding of fact 4. Adopted in substance in finding of fact 4. Rejected as subordinate. Adopted in substance in finding of fact 4. Adopted in substance in finding of fact 5. Rejected as subordinate. Rejected as argument. Rejected as argument. Rejected as argument. Rejected as subordinate. Rejected as a recitation of testimony. Adopted in substance in finding of fact 5. Rulings of Proposed Findings of Fact Submitted by the Respondent (None Submitted) COPIES FURNISHED: Leonard T. Helfand, Esquire Department of Health and Rehabilitative Services 401 Northwest 2nd Avenue, Suite 790 Miami, Florida 33128 Jeanette Dilligard 1751 Northwest 76th Street Miami, Florida 33147 William Page, Jr., Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 Steven W. Huss, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 =================================================================
The Issue Whether Respondent proved the allegations contained in its January 30, 2004, notice of revocation of family day care home registration letter to Petitioner.
Findings Of Fact Respondent is the state agency responsible for licensing and regulating child care facilities, including family day care homes. Petitioner, by and through aid, assistance, and training of the federally funded Weed and Seed Support Group program of the Fort Myers area, began her family day care home provider training in 2001 and, upon completion of training, was registered as a family day care home from July 25, 2002, to June 30, 2003. On June 23, 2003, Respondent acted upon Petitioner's re-registration application to provide child care in her home for up to ten children, effective June 30, 2003, through June 30, 2004. Respondent acknowledged that at the time Petitioner's registration was acted upon, Leona Mark, Petitioner's identified substitute caregiver, had cleared her for background screening but she had not completed either the minimum or 30 hours of family day care home training prior to caring for children in a family day care home. Notwithstanding the situation with Ms. Marks, Respondent's recommendation was to "Issue registration to Deborah Scurry to provide child care in her home for up to 10 children." Ms. Mark did not testify, and the record contains no evidence that Ms. Mark completed her training at any time prior to Respondent's notice of revocation letter of January 30, 2004. Respondent, by letter dated January 30, 2004, informed Petitioner that her family day care home registration was revoked. The revocation letter gave the following basis for revocation: On December 22, 2003, the licensing unit received a complaint that a nine month old sustained a skull facture while in your care. The complaint also stated that you left your daycare children with your 15 year old daughter. During the investigation, you denied ever leaving the daycare children alone and that you always took them with you. The Department, upon conducting interviews, has determined that you did leave the children with your 15-year-old daughter, which is a supervision violation. The letter cited Subsections 402.302(1) and (7) and 402.313(1)(a)4., Florida Statutes (2003), as the provisions determined to have been violated and the authority for revocation of the registration. The Injured Child D.B. is Petitioner's nephew, and he was routinely placed in her family day care home when his mother was working. On Friday morning at approximately 6:30 a.m., on December 12, 2003, L.B., D.B.'s mother, left D.B., a nine-month-old child, in Petitioner's family day care home. At that time, neither L.B. nor Petitioner noticed a bump on D.B.'s head. According to Petitioner, D.B. became "fussy" during morning breakfast at approximately 7:00 a.m., at which time she noticed a small bump on his head. The bump was soft to her touch, and she thought no more about it. During lunch, Petitioner's daughter noticed that the bump had gotten larger and told her mother, who, by telephone, attempted to reach L.B., but was unsuccessful. When L.B. came to pick D.B. up at approximately 6:30 or 7:00 p.m., on December 12, 2003, Petitioner and L.B. discussed the bump on D.B.'s head. L.B. recalled that while playing D.B.'s sibling had hit him on the head with a plastic toy bat at some earlier time and that D.B. had fallen out of bed and hit his head on the floor. L.B. testified that she does not know where D.B. hit his head. It could have happened at home while playing with siblings, when he fell out of bed, or when he was with his father. She was firm in her conviction and belief that D.B. was not injured while in Petitioner's family day care home. There is no evidence of record to account for D.B.'s whereabouts on Saturday and Sunday, December 13 and 14, 2003. On Monday, December 15, 2003, L.B. dropped D.B. off at Petitioner's family day care home. On Tuesday, December 16, 2003, D.B. was again dropped off at Petitioner's family day care home. On Wednesday, December 17, 2003, Petitioner noticed that the bump had gotten larger and called L.B. L.B. came later in the day and carried D.B. to the Emergency Room at Cape Coral Hospital for a medical examination. Medical Examination of the Injured Child A Medical Examination report, dated December 19, 2003, was completed by Susan Sherman (Nurse Sherman), ARNP of the Child Protection Team. The Medical Examination report provides Dr. Michael Weiss' findings, which are as follows: X-RAY FINDINGS: A copy of the report for CT of the head without contrast and a complete skeletal survey are available. These x-rays were read by Dr. Michael Weiss on December 19, 2003. On the CAT scan of the head without contrast, the findings are as follows, "The ventricles are normal in size and midline in position. There is no intracranial hemorrhage. No intra or extra- axial fluid collection. There is a stellate fracture of the left parietal bone. There is also a high right parietal fracture identified. There is no evidence of depression on either side. There is an associated soft tissue hematoma." The impression of the CT scan is as follows: "Biparietal skull fractures, rule out child abuse." Findings and recommendations were reviewed with Dr. Burgett at the time of study. (Dr. Burgett is a pediatrician at the Physician's Primary Care.) . . . (emphasis added) Notwithstanding the findings of Dr. Weiss, Nurse Sherman reported her impression and plan as follows: IMPRESSION: Biparietal skull fractures. From the x-ray report, the skull fracture on the left side of his head is a stellate fracture. There is also a fracture of the parietal bone on the right side of the head. These injuries are consistent with physical abuse. PLAN: The child will be followed medically by his primary care provider. At this time, I do not recommend the child be sheltered. My only recommendation is the child not return to the day care setting. This mother needs to find alternative childcare for [D.B.]. It was reasonable for Nurse Sherman to take the protective approach and recommend that D.B. not return to the family day care home because she believed Petitioner had a history of utilizing substitute caregivers who had not completed required training, and, she also believed that on more than one occasion in the past, Petitioner's child-to-child caregiver ratio was exceeded. An acceptable ratio requires a specific number of caregivers per the number of children within a specific age range. Petitioner had more children than she had certified caregivers required for the separate age range(s) of children found in her family day care home. However, the Department did not charge "past violations of overcapacity" and/or "utilizing substitute caregivers who were not properly qualified" in the January 30, 2004, revocation letter. The evidence of record was inconclusive to demonstrate to any reasonable degree of certainty: first, the date D.B. sustained his injury/injuries; second, whether D.B. was injured while in the care of Petitioner; third, whether D.B. was injured while in the care of his mother; or forth, whether D.B. was injured while in the care of his father. On December 22, 2003, Respondent received a compliant report of a license violation, to wit: over-capacity and background screening. The complaint report was assigned to and investigated by Celeste Davis and a second unnamed person. Ms. Davis closed her report on December 23, 2003. Ms. Davis' investigation found eight children in care: one infant, three preschoolers, and four school-age children. Petitioner was within her ratio at the time of this inspection. Through interviews with the children at the day care, Ms. Davis determined that Petitioner, on occasion, left her day care children alone with L.S., her teenaged daughter, who was not a qualified caregiver. Regarding D.B.'s head injury, Petitioner informed Ms. Davis that the injury did not occur when D.B. was in her care and probably occurred the night before D.B. was brought to her home. Ms. Davis cited Petitioner for one license violation, leaving her day care children alone with her teenage daughter. Ted Leighton investigated an Abuse Hotline Report filed on December 19, 2003. Mr. Leighton did not testify but his written report was introduced into evidence without objection. Respondent argued in its post-hearing submittal that information Mr. Leighton received from his interviews with four minor children, his review of reports from medical personnel and health care providers, and his conclusion that "it was 'probably' on December 15 or 16, 2003, D.B. was injured at the family day care home accidentally by another child when the Petitioner was not present," as fact. Respondent's argument is not based on facts, but upon uncorroborated hearsay, assumptions and conjectures of Mr. Leighton. For those reasons Respondent's argument is rejected. In support of Mr. Leighton's conclusions, Respondent cited the testimony of Nurse Sherman. Nurse Sherman concluded that D.B.'s injuries were "very serious and 'could have' been life threatening, 'could have' happened accidentally 'if' another child jumped off a bed, landing on D.B., while D.B. was laying on the floor with a hard object under his head." The intended purpose of Nurse Sherman's testimony was twofold: to demonstrate the severity of D.B.'s injury and the location D.B.'s injury was sustained. The inference drawn by Respondent was that a lack of supervision was the primary cause of the injury. This argument is likewise not based upon facts found in the evidence of record. Nurse Sherman's conclusions are but an extension of Mr. Leighton's assumptions and conjectures. This argument is likewise rejected. D.B.'s mother recalled one occasion when D.B. had fallen out of her bed at home. She testified that her older daughter told her that while playing with D.B., he had fallen from his bed to the floor on more than one occasion at home. She speculated that D.B. could have been injured at home or by her three-year-old son, who when playing with D.B. had struck him on his head with a plastic toy bat. L.B. testified further that she and Petitioner are related and that her three children have been continuously in Petitioner's family day care home since Petitioner has been qualified as a provider. She was certain that Petitioner did not and would not injure her children. She testified that D.B. "could have" suffered the injury to his head when he was in the care and custody of his father over the weekend. Of the several possibilities of the date, time, place, and in whose custody D.B. may have been when the injury occurred, the mother was not certain. The inconclusive and conflicting evidence regarding D.B.'s whereabouts and the identification of the person or persons who had custody of D.B. when his injury occurred is, as it must be, resolved in favor of Petitioner. Respondent failed to prove by clear and convincing evidence that D.B. was injured when in the care, custody, and control of Petitioner while in the family day care home as alleged in its notice of registration revocation dated January 30, 2004. Caregivers supervision and Over capacity Respondent demonstrated that as of June 13, 2002, neither Petitioner's 15-year-old daughter nor any other person present on the days of inspection who was serving as a caregiver was properly trained. By evidence of record, Respondent demonstrated that Petitioner was over capacity, based on the child-to-child caregiver ratio on or about June 2, 2001. With knowledge of the one occasion of over capacity by Petitioner, Respondent approved Petitioner's re-registration application on June 23, 2002, effective through June 30, 2003, and permitted Petitioner to provide care for up to ten children. The approved re-registration increased Petitioner's child care capacity. Respondent's January 30, 2004, letter did not allege an over capacity violation, and no other pleading filed by Respondent contained information from which Petitioner could have been so informed of the over capacity allegation. Respondent failed to prove that D.B. sustained his head injuries while in Petitioner's family day care home. Respondent has shown that Petitioner did on one occasion leave children in the care of a person or persons, including Petitioner's 15-year-old daughter, who were not trained, certified, or qualified as substitute caregiver(s). There is no evidence of record that Petitioner's violation of child-to-child caregiver ratio demonstrated either gross misconduct and/or willful violation of the minimum child care standards within the meaning of the statutes and rules charged. The evidence demonstrated that Petitioner did not fully understand the child-to-child caregiver ratio differentiations by age groups. Petitioner's lack of understanding does not absolve her of the obligation to know all rules and regulations. It does, however, provide a reasonable inference that the out-of-ratio situation was not an intentional act on behalf of Petitioner. Weed and Seed Support Group in the Fort Myers Area Petitioner presented the testimony of Susan B. Davis, a family child care specialist employed by the Weed and Seed Support Group of the Fort Myers area. The purpose and organizational goal of this federally funded agency is identification of economically disadvantaged persons who are interested in becoming day care providers in their homes in their respective communities. The methodology of the agency is to first assist those persons identified with acquiring required training and certification. Second, the agency assists the trained candidate(s) with the application process through Respondent. According to Ms. Davis, the federal grant overall objective is twofold: first, to seek, find, and train family day care home providers in the community and second, to provide a source of employment and income to the provider's family. As a direct result of this community service, other families within the economically disadvantaged community will have local and affordable family child care service within their respective communities. By accomplishing the identification and training of community child care providers, employed and unemployed parents in need of day care in the various Fort Myers communities will be the beneficiaries of the available family day care home, thereby enabling some parents to become employed and enhancing employment opportunities for employed parents. The Weed and Seed Support Group of the Fort Myers area offers free help and support to self-employed child care providers. In 2001, Ms. Davis identified and assisted Petitioner in becoming a qualified child care provider. Ms. Davis assisted Petitioner in acquiring her 30 hours of training to become a qualified child care provider. She introduced Petitioner and others to the rules and regulations of Respondent pertaining to child care providers. Thereafter, she would visit with Petitioner and others to whom she rendered assistance only as her time and scheduling permitted. Ms. Davis' last visit with Petitioner occurred sometime before Christmas of 2003. Though she had no knowledge of the injury suffered by D.B., she offered to render assistance and additional training, including assisting Petitioner in acquiring a functional understanding of Respondent's rules, regulations, proper maintenance of required records, and correct completion of required reports and forms, that would enable Petitioner to continue her self-employment status as a qualified child care provider offering daily child care services within her community.
Recommendation Based upon the foregoing Finding of Facts and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services enter a final order: Finding that Petitioner left children at her family day care home during her absence from the premises under the supervision, care, and control of unqualified substitute caregivers; and Imposing on Petitioner a fine in the amount of $250.00; and, upon payment thereof, Set aside and vacate revocation of Petitioner's family day care home license/registration; and Issue to Petitioner a six-month provisional license. DONE AND ENTERED this 20th day of September 2004, in Tallahassee, Leon County, Florida. S 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 20th day of September, 2004.
The Issue The issue to be resolved in this proceeding concerns whether the Respondent Marie Smith has committed an intentional or negligent act materially affecting the health or safety of children for whom she operated as a "medical foster care" parent or provider.
Findings Of Fact The Respondent, Marie Smith, was first licensed in 1992, as a foster care parent by the Department of Health and Rehabilitative Services, since re-named the Department of Children and Family Services. In 1996 she became a qualified medical foster parent, authorized to keep children with special medical problems. The Respondent received special training to become a medical foster parent from Children's Medical Services, a unit of the Department of Health, which oversees the progress of children placed in medical foster care. Some of the training the Respondent received concerned a child, T.B. It involved the use of the medication Flovent, which is used to treat asthma and other bronchial conditions. Flovent is dispensed in a small aerosol container and is administered by use of an inhaler. The training which the Respondent received includes the manner in which the person administering Flovent can ascertain when the container is empty and no longer usable. In connection with the Respondent's training as a medical foster parent, Ms. Smith was also instructed in the importance of giving all medications as prescribed and in how to document administration of medications. Through training and practice she learned to execute forms provided by Children's Medical Services (CMS) called treatment records and medication records, in which were logged each dose of medication given. Although not connected with her training as a foster parent, she also received ninety hours in classroom instruction which resulted in her being certified as a pharmacy technician by the State of Florida. On July 29, 1996, the child D.P. was born. D.P. and his twin brother were placed in Ms. Smith's foster home in October 1996. D.P. lived with Ms. Smith continuously until he was removed from the home in March 1999. In July 1998, D.P. was diagnosed as having bronchiolitis, a chronic inflammation of the bronchial passages of the lungs, later identified as asthma. In order to treat this condition he was prescribed Flovent. The purpose of the medication was to reduce the frequency of exacerbations or "asthma attacks." The medication was not designed to alleviate attacks already in progress, but to prevent future attacks. The medication is only effective if given as prescribed over an extended period of time. If Flovent is not administered as prescribed over a period of time the patient may suffer an increased incidence of asthma. The failure to take preventive steps can result in long-term damage to the lungs according to Dr. Bailey. Ms. Smith filled the first prescription for Flovent at Smith's Pharmacy on July 9, 1998. Only one container of Flovent was dispensed on that occasion. A container of Flovent contains an advertised one hundred and twenty (120) metered actuations or "puffs." The literature inserted into every package contains a warning to the user to use the number of actuations, one hundred and twenty, indicated on the box because the correct amount of medicine in each puff cannot be guaranteed after that point. D.P.'s prescription required him to receive two puffs per day, once in the morning and once in the evening. Since the label on the container itself stated that there were only one hundred and twenty puffs per canister, the first container was due to be replaced after sixty days of use at two puffs per day. Notwithstanding this fact, the prescription was not refilled until October 16, 1998, or ninety-eight days after the first container was obtained. Thus, for a period of thirty- eight days, D.P. either received no dose at all, or potentially received an inadequate dose of medicine. An actual test of a full canister of Flovent was conducted at the hearing. That revealed that one could get approximately one hundred and fifty- seven puffs from a canister before it is empty. However, the literature which comes with the medication makes it clear that a user cannot depend on the adequacy of the dosage after one hundred and twenty puffs. Thus, even if Ms. Smith could have dispensed one hundred and sixty puffs from a canister, and if she maintained that she was administering two puffs per day, she would have run out of the medication after no more than eighty days. Ninety-eight days elapsed however, between the filling of the prescription and the first refill which was obtained in October 1998. Even under Ms. Smith's description of the dosing and administering of the medication, D.P. either had to have gone without his medication for some days or was receiving a less-than-standard amount in order for the medication to last as long as she maintained it did (i.e., possibly one puff per day). Ms. Smith maintained that she actually obtained two packages of Flovent from the pharmacy rather than one on October 16, 1998. The pharmacy records, however, show only one container being dispensed both in July and in October. Those records were made contemporaneously with the receipt and filling of the prescription. The pharmacist and pharmacy technician each double-check the work of the other. Thus if Ms. Smith had obtained double the amount of medication, both the pharmacist and the pharmacy technician would have had to make the same error at the same time, which is improbable. Moreover, there is no label on the extra box taped to the box dispensed on October 16, 1998. It is not the practice of the Smith Pharmacy to tape such boxes together or to label only one box. In any event, on October 16, 1998, Ms. Smith got the prescription refilled. On that day she picked up one container of Flovent. The prescription had not changed at that point so D.P. was still supposed to receive two puffs per day, so the container should have been replaced after sixty days. In view of the fact that Ms. Smith was keeping T.B., another child at the same time she provided foster care for D.P., and since T.B. also had a prescription for Flovent, it has not been established that Ms. Smith could have only gotten an extra Flovent box from the pharmacy, with the boxes containing the two canisters taped together and dispensed together on October 16, 1998. She could have simply used T.B.'s prescription box. The prescription obtained on October 16, 1998, was not re-filled again until March 10, 1999. A period of one hundred and forty-five days had thus passed before a new container was obtained. The test performed at hearing showed that as much as one hundred and fifty-six to one hundred and sixty puffs are contained in such a canister and therefore the medication might have lasted the one hundred and forty-five days. However, if the manufacturer's warning or instruction on the literature supplied with the canister is to be believed, after one hundred and twenty puffs had been dispensed (a sixty-day supply) then less medication might be dispensed with each puff thereafter. Since one hundred and forty-five days elapsed before a new prescription and container of medicine was obtained, D.P. may have failed to received one hundred and seventy doses of medicine over a period of five months. This could clearly have resulted in a worsening of D.P.'s condition. Moreover, Ms. Smith incorrectly documented the administration of the Flovent as though she were in fact giving the medication twice per day as prescribed. See Petitioner's Exhibit No. 2 in evidence. The testimony of the witnesses employed with the CMS who oversee the care for children in medical foster care uniformly found that the Respondent provided good care and they never saw any evidence that medical care for the child D.P. was neglected. In fact, Dr. Samir Ebbeid, a pediatric cardiologist who treated the child from October 1996 through April of 1999, found that the Respondent uniformly complied with his instructions about care for the child and thought that the care of the child by the Respondent between the visits to his office was appropriate. In fact he found that the child improved while under the Respondent's care and that there was no reason to believe that the child's medical care under the care of Ms. Smith, the Respondent, was ever neglected. The child's asthmatic condition actually improved during the time he was under the Respondent's medical foster care.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That a final order be entered by the Department of Children and Family Services suspending the foster care license of Marie Smith for a period of ninety days, during which time she should undertake an approved course of instruction concerning the proper administration and record-keeping of administration of prescription drugs for children in her care. DONE AND ENTERED this 15th day of March, 2000, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of March, 2000. COPIES FURNISHED: John R. Perry, Esquire Department of Children and Family Services Room 252-A 2639 North Monroe Street Tallahassee, Florida 32399-2949 Richard D. Ogburn, Esquire Post Office Box 923 Panama City, Florida 32402 Samuel C. Chavers, Acting Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John S. Slye, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether Petitioner's foster care license should be revoked because she allegedly lacks the ability to provide for the psychological development of foster children as required in Section 409.175(4)(a)2, Florida Statutes and Rule 10M-6.005(3)(i), Florida Administrative Code.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received, and the entire record compiled herein, the following relevant facts are found. Petitioner, State of Florida, Department of Health and Rehabilitative Services, is the licensing and regulatory agency in Florida for the issuance of foster home licensing. On January 16, 1991, Petitioner issued to Respondent, Pauline Cole, a provisional certificate of license for a foster home for her residence situated at 3501 River Grove Drive in Tampa, Florida indicating that she had complied with the minimum standards set by Petitioner for a foster home and approved her foster home application. By its terms, the license was effective for a period of one year from the above-referenced date unless renewed, extended, withdrawn, or revoked for cause. To demonstrate her eligibility for licensure, Respondent successfully completed several courses including "a clinical interventions for psychiatric nurses: frameworks for success" sponsored by the Florida Mental Health Institute in Tampa, Florida with six contact hours on June 15, 1990. On December 17, 1990, Respondent successfully completed 30 hours of training in "model approach to partnership and parenting (MAPP)". Additionally, Respondent took several other courses dealing with parenting and caring for foster children. On November 21, 1991, Petitioner filed an application to renew her license to provide for foster home care for dependent children. As a result of that application, Petitioner's agents visited Respondent's home to determine whether it still complied with standards set by Petitioner for licensure. During a foster parents meeting in June, 1992, Respondent inquired of one of Petitioner's agents whether or not Petitioner had a policy of surveilling foster parents by following them or otherwise monitoring their activities and particularly their vehicular travels. Petitioner's agent advised Respondent that that was not HRS's policy, i.e., to surveil foster care parents whereupon Respondent related that she felt that she had been followed by Petitioner's child protective investigators. Respondent related several steps that she undertook to determine whether or not she was in fact being followed. Specifically, Respondent would change directions or would make turns from main thoroughfares to see if the car that she considered to be following her would make a similar change in direction. Respondent did not take any evasive measures which in any manner endangered the lives of the foster children that were in her care. During the time of her foster care licensure, Respondent had two foster care children ages three and four. During the sessions wherein Respondent's application for licensure was discussed with Petitioner's agents, Respondent again expressed concern that she was being followed, however, during the last session during March 1992, Respondent advised Petitioner that while she still had her doubts that she was not being followed, she was no longer concerned that she was being followed to the point of taking evasive actions to try to verify her concerns. During the final meeting wherein Petitioner's agents inquired of Respondent if she still had the paranoid ideation that she was being followed, Respondent basically advised Petitioner's agents that "she was leaving the matter in the hands of the Lord." Petitioner's agents basically advised Respondent that if they (Petitioner's agents and Respondent) could put to rest their concern that Respondent no longer had the paranoia of being followed, Respondent could be relicensed. 1/ Respondent earned a bachelor of science degree in nursing from Tuskeege Institute in 1958. She earned a master's degree from the University of South Florida in industrial and technical education during 1979. She is certified as a registered nurse and a community education instructor. Respondent was employed as a registered nurse and nursing instructor at the Veteran's Administration (VA) Hospital in Montgomery, Alabama, Gainesville and Tampa, Florida during the years 1962 through 1980. She retired from the VA in 1980. From 1989 to the present time, Respondent has been employed as a community education instructor at Hillsborough Community College in Tampa, Florida. Respondent holds memberships in several professional and civic organizations and has been very active in community service organizations in Hillsborough County. Among the awards and honors she received was a nominee in Who's Who in American Nursing during 1993-94, a nominee for the achievement award for advocacy/public service at the Tuskeege National Alumni Association during 1992; co-founder, Minority Nurses Association of the Tampa Bay Area and an award for dedicated service, Iota Phi Lambda Sorority, Southern Region, during the years 1983-1987, among others. Respondent has been able to provide a great deal of parenting and inspiration to her two foster children during the times that she cared for them until they were separated from her by Petitioner's agents during 1992. Based on her nursing background and the amount of time that she has been able to devote to her children, she has served as a model foster parent since the time that she was issued a provisional license during 1991.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: Petitioner enter a final order granting Respondent's application to be relicensed as a foster home provider assuming, of course, that she complies with other licensing requirements. DONE AND ENTERED this 12th day of July, 1993, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of July, 1993.
