The Issue Whether Petitioner is entitled to a Foster Home License.
Findings Of Fact Petitioner, Marion Hanes, had for a number of years been granted custody of two very troubled female foster children by a Pennsylvania court. Ms. Hanes grew to care a great deal for these two foster children and while they were in her custody helped the two children feel loved and cared for. When Ms. Hanes and her husband moved to Florida, she asked the court to grant her permission to take the girls to Florida to live with her and her husband. Because of Ms. Hanes' good care of these children and the desires of Ms. Hanes, the children, the Pennsylvania social service agency and the Pennsylvania court, in order to maintain a consistent environment for these children, the court granted Ms. Hanes permission for the girls to live with her in Florida. After arriving in Florida, Petitioner discovered that the girls' Pennsylvania Medicaid cards would not be accepted by Florida Medicaid providers. Therefore, in order to obtain school and medical services for her foster children in Florida, Ms. Hanes had to obtain Florida Medicaid cards for her charges. In pursuit of the Medicaid cards, Ms. Hanes was informed that she would have to have a foster home license for the home in which the girls would be living. Ms. Hanes made application to the Department of Health and Rehabilitative Services for a Foster Home License for her residential home located at 1015 Edison Drive, Pensacola, Florida. The home is located in a middle-income residential area and is an ordinary brick house resembling the other homes in the neighborhood. The front bedroom windows in the house measure 15 inches in height and 34 inches in width. The bottom of the windows are approximately 46 inches off the ground. The children in Ms. Hanes' care would occupy one of the bedrooms with the 15 by 34 inch windows. On June 24, 1991, Robert Herron, Fire Prevention Specialist and licensed Fire Inspector inspected the Petitioner's home located at 1015 Edison Drive. The purpose of the inspection was to determine whether the residential home met fire safety requirements applicable to houses which will serve as foster homes. The Fire Inspector testified that the Department's long-standing, statewide policy was to require that foster homes meet Chapter 22 of the NFPA 101 Life Safety Code. The NFPA 101 Life Safety Code, Chapter 22-2.21(b), requires that windows in a residential home have a clear opening of not less than twenty-four (24) inches in height and twenty (20) inches in width, with the bottom of the opening not less than forty-four (44) inches above the floor. Mr. Herron further testified that exceptions for good cause had been granted to the window size requirement, but only when a window's dimension varied by one or two inches. The Hanes' windows were denied an exception. The Life Safety requirement has not been adopted by HRS as a rule. Nor has the Life Safety requirement been adopted as a rule applicable to residential or foster homes by the State Fire Marshals office. Additionally, the evidence did not show that the Life Safety requirement has been adopted by any local building authority which would have code authority over the Hanes' home. The agency did not put on any evidence which would demonstrate the reasoning behind this unadopted rule requirement. Mr. Herron's inspection of the Hanes's home revealed that the bedroom windows in the Hanes' home did not meet the NFPA 101 Life Safety Code standards. Specifically, the fifteen (15) inch height of the windows was short by nine inches from the NFPA Life Safety Code's standard. Importantly, the evidence did not show that the Hanes' home was unsafe. In fact, the better evidence in this case demonstrates that the Hanes' home presents a safe and secure environment for the Hanes and the foster children and the windows in their present condition appear to be big enough to allow passage in an emergency. As of the date of the hearing, the Hanes had not increased the size of the bedroom windows to twenty-four (24) inches. Mr. Hanes stated the reason these windows had not been enlarged following Mr. Herron's inspection was because other neighborhood houses were similar in style to the Hanes' house and the esthetic changes were undesirable to the Hanes. More importantly, the evidence demonstrated that removing these foster children from Ms. Hanes' care would not be in their best interest and could cause more harm than good. Put simply, the needs of these children for a consistent and loving environment outweigh the need for strict compliance with an unadopted safety standard given the fact that the home is safe. Therefore, Ms. Hanes is entitled to a foster home license for her home located at 1015 Edison Drive, Pensacola, Florida.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is accordingly, RECOMMENDED: that the Petitioner's application for licensure as foster parents be granted. ENTERED this 9th day of August, 1993, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of August, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-5134 The facts contained in paragraphs 1, 5 and 6 of Respondent's Proposed Findings of Fact are adopted in substance insofar as material. The facts contained in paragraphs 2, 3, 4 and 7 of Respondent's Proposed Findings of Fact are subordinate. 4. The facts contained in Petitioner's letter dated April 4, 1993, are adopted in substance, insofar as material. The characterization of Respondent's Proposed Recommended Order and testimony at the hearing are not ruled upon since no factual matters are involved. COPIES FURNISHED: Marion Hanes 1015 Edison Drive Pensacola, FL 32505 Christopher R. Hunt Assistant District Legal Counsel Department of Health and Rehabilitative Services Post Office Box 8420 Pensacola, FL 32505 Robert L. Powell, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, FL 32399-0700 John Slye General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700
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 presented in this case is whether Respondents' foster home license should be revoked.
Findings Of Fact Respondents were first licensed as a family foster home in April 1994. As a result of Respondents' obtaining a foster home license, the Department put in their care: M.A1.A and M.Au.A, brother and sister; and, J.H. and L.H., brother and sister. M.Au.A was nine years old and her brother M.A1.A was eight years old. J.H. was eight years old and his sister, L.H., was five years old. J.H. and L.H. were later adopted by their foster parents, Robert and Irene Holmes. J.H. was born September 2, 1991. He was, and is, a very troubled young man. Schizophrenia runs in his biological family and his mother abused chemicals during her pregnancy. He is diagnosed with Attention Deficit-Hyperactivity Disorder (ADHD) and has episodes of violence, aggression, unpredictability, poor impulse control, and agitation. He is likely to be pre-schizophrenic and, given his behavior, could develop full schizophrenia in the future. Even though only diagnosed with ADHD and in addition to stimulant medication prescribed for his ADHD, J.H. takes several psychotropic medications generally prescribed for manic and depressive behavior and other mood disorders. However, these drugs do not seem to fully control his behavior. Because of his aggression and severe behavior problems, J.H. has been involuntarily committed multiple times and has been repeatedly recommended for a residential, therapeutic foster home placement. Unfortunately, for various reasons, the Department has not provided J.H. a residential, therapeutic foster home placement. On October 7, 1999, the Department received an allegation of abuse against Respondents. The allegation involved J.H. The allegations involved alleged favoritism of L.H. over J.H., abandoning J.H. with teachers, emotional abuse, and not wanting him in their home. The Department's investigation, on very tenuous evidence, verified abuse for neglect - abandonment; neglect - failure to protect; abuse - other mental injury; neglect - inadequate supervision; and abuse - confinement/bizarre punishment. The report further found some indication of medical neglect and other physical injury-threatened harm. Because of the abuse report, the Department took L.H. and J.H. into shelter care on October 8, 1999, and filed a dependency action regarding J.H., Case No. 99-628-CJ. Additionally, based on the verified findings of the abuse report, the Department revoked Respondents' foster home license. By Order of the Circuit Court dated July 12, 2000, the dependency action was dismissed for lack of evidence and an utter lack of co-operation by Department's personnel and witnesses during the dependency action. J.H. was returned to Respondents' home and has remained with them to date. L.H. was returned to Respondents' home sometime before her brother's dependency action was concluded. Put simply, at the hearing, none of the allegations of the abuse report or facts supporting the verified findings were supported by the evidence since only uncorroborated hearsay was introduced at the hearing. Moreover, even though the evidence was hearsay, many of the allegations appeared from all the testimony to have been taken out of context and given meanings which were not warranted when their context was known. Significantly, the Department did not call J.H. to testify about any of these allegations. To the contrary, the testimony of various witnesses indicated that Respondents did, in fact, keep a very neat, tidy, and orderly foster household and that J.H. was not abused or neglected. The evidence presented by Respondents and the testimony of their witnesses indicate that J.H. was provided a safe environment. The teachers provided temporary care during the period of time alleged to be when Respondents were neglecting J.H. by being out of town. The witnesses, including the teachers, stated that the plan was that they would care for J.H. until the return of Respondents. Furthermore, there was never any indication that the child was mistreated or neglected or left without care by Mrs. Holmes after returning from a wedding out-of-state. Finally, there was no evidence of noncompliance with any treatment plan, that the multiple involuntary commitments were in any way mentally abusive of J.H., or that the quiet times J.H. needed to calm himself were intended to be time-out punishment or were inappropriate or bizarre punishments of J.H. Because the allegations of abuse were not established, there is no basis on which to revoke Respondents' foster home license. Therefore, Respondents are entitled to their foster home license.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Children and Family Services enter a final order not revoking Robert and Irene Holmes' family foster home license. DONE AND ENTERED this 24th day of December, 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 24th day of December, 2001. COPIES FURNISHED: Keith J. Ganobsik, Esquire Department of Children and Family Services 11351 Ulmerton Road, Suite 100 Largo, Florida 33778-1630 Charles P. Vaughn, Esquire 120 North Seminole Avenue Inverness, Florida 34450-4125 Peggy Sanford, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
Findings Of Fact On or about December 5, 1977, the Respondents, Mr. and Mrs. Vincent A. Morris, filed an application for licensure to operate a foster home in District V of the Department of Health and Rehabilitative Services. Carol Parks, a Social Worker employed by the Petitioner and who is in charge of licensing in the Foster Care Section of District V, testified as to the procedures utilized in considering applications for foster home licensure. Ms. Parks testified that once an applicant files, she visits the applicant and goes through the orientation session, familiarizing the applicant with the forms, procedures and in a general manner outlining the standards necessary to obtain a foster home license. Ms. Parks ascertained that the Morrises were married and she additionally checked with the Sheriff's Department and other local law enforcement agencies to determine whether or not the Respondents had been convicted of a felony as an adult. 1/ Based on this search with the various local law enforcement agencies, Ms. Parks found no evidence of a conviction of the Respondents. As stated, the Respondents filed the application on or about December 5, 1977, and a license was granted them during April, 1978. On cross-examination, Ms. Parks failed to recall whether or not she asked the Respondents whether or not there were any outstanding felony convictions against them. She testified that she was satisfied with the manner in which the Respondents operated their facility and confirmed the fact that the Respondents were permitted to adopt a sixth foster child during January of 1979. Esther Morris testified that during the orientation session, Ms. Parks never inquired of her if she had been convicted of a crime. Mrs. Morris inquired of Ms. Parks and other agency personnel of the Department of Health and Rehabilitative Services whether or not she could begin to remodel her home when she initially filed her application. She was advised by Ms. Parks and others that she should defer any remodeling until they advised her to proceed. The Morrises later obtained approval from that Department to commence the remodeling of her home, which she did, and expended funds totaling approximately $22,000.00 for preparation of this facility as a foster home facility. Presently, she has six foster children, the last of which was adopted during January, 1979. She testified that Ms. Parks asked her whether or not she or her husband had been to jail and she replied that she had not. Petitioner's Exhibit No. 1 is a certified copy of a judgment and sentence indicating that on or about August 11, 1975, Respondent, Esther V. Morris, was convicted of welfare fraud, for which she was fined $500.00. Chapter 10C-10.29(7), Florida Administrative Cede, provides in pertinent part that: "No applicant can be considered who, as an adult, has been convicted of a crime." It is based on this rule that the Petitioner is here seeking to revoke the foster hose license of the Respondents. Inasmuch as the above-mentioned rule makes no mention of or provides any procedure for revocation of a license which has been granted, the undersigned is of the considered opinion that such rule provides no basis upon which the Petitioner can revoke the Respondents' license. Particular note was made of the fact that the Respondents credibly testified that they, at no time, misrepresented to the Department of Health and Rehabilitative Services that they were convicted of a crime as an adult. While it is true that the cited rule indicates that no person can be considered who, as an adult, has been convicted of a crime, a different issue is here posed inasmuch as the Respondents are now possessed with a license, a right to which certain due process procedures must be complied with prior to revocation. With these facts in mind, the undersigned is not prepared to read into the above- quoted rule authority which is not contained in said rule. Accordingly, I shall recommend that the Administrative Complaint filed herein be dismissed.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby recommended that the complaint filed herein be DISMISSED. ENTERED this 15th day of March, 1979, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 101 Collins Building MAILING ADDRESS: 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675
The Issue The basic issue in this case is whether the Respondent, Donna Vermeulen, is eligible to be relicensed as a family foster home.
Findings Of Fact The Respondent was licensed as a family foster home in Dade County, Florida, for approximately 19 years. The Respondent had received all of the training that was required for such a license. In 1997, Rosemary Bridges was a foster care counselor employed by the DCFS. In June of that year, Ms. Bridges was assigned to be the foster care counselor for three of the four foster children who were living with the Respondent at that time. Shortly after her assignment as foster care counselor for those children, Ms. Bridges made her first visit to the Respondent's home to check on the status of the children. On her fist visit to the Respondent's home, Ms. Bridges found the home to be untidy and unclean. There were clothes everywhere, dishes piled up, and no linen on the children's beds. The children all looked unkempt. The hair was not combed on any of the children. Ms. Bridges thought the general condition of the Respondent's home was potentially hazardous to the health of the foster children and she considered the possibility of removing the foster children from the home. On the day of Ms. Bridges' first visit, a therapist was also present. Ms. Bridges and the therapist discussed the situation with the Respondent. On that day the Respondent's arm was in a cast, and the Respondent explained that, because she had a broken arm, she was not able to take care of the house and the foster children as well as she usually did. The foster children had been with the Respondent for a long time, and the Respondent wanted them to continue to stay with her. Following the discussion with the Respondent, Ms. Bridges decided not to remove the foster children from the Respondent's home. Instead, Ms. Bridges made arrangements with the Children's Home Society for the Respondent to receive services for herself and for the foster children. Ms. Bridges returned to the Respondent's home a month later. The condition of the home was the same as it was during the June visit. The foster children were again unkempt and unclean. At the time of the visit, Ms. Bridges was also concerned about reports of inappropriate activities involving the foster children and one of the Respondent's two sons.2 Ms. Bridges and the children's therapist continued to work with the Respondent in an effort to improve the situation in the Respondent's home. Sara Leidtke is a mental health counselor who works primarily with children in foster homes, doing intensive on-site therapy. In February of 1997, Ms. Leidtke began providing therapy to three of the foster children in the Respondent's home. Ms. Leidtke continued to provide therapy twice a week to those children while they were living with the Respondent.3 All three of the foster children were supposed to be taking medication prescribed by a physician at the clinic where Ms. Leidtke worked. The medication was to treat hyperactivity and depression. One of the foster children was having nightly episodes of bed-wetting. On numerous occasions Ms. Leidtke recommended that the Respondent take that child to the enuresis clinic for treatment. The same recommendation was made by the physician who was treating the child's psychological problems. The Respondent never took that foster child to the enuresis clinic. From February of 1997 through August of 1997, Ms. Leidtke was concerned about the personal hygiene of the three foster children to whom she was providing therapy services. Ms. Leidtke described her concerns in the following words:4 All three of the children exhibited poor hygiene while in the Vermeulen home. Their clothes were often soiled, their hair dirty, and they were often unbathed with a strong body order. This therapist worked with them on this and gave Mrs. Vermeulen a hygiene checklist to utilize with them. The children spent a great deal of time working on this during therapy, but this therapist had difficulty getting Mrs. Vermeulen to follow through with checklists on days that therapy did not take place. On a number of occasions, the children stated that they were not able to attend to their hygiene because they did not have toothbrushes or other personal items. [J.] stated numerous times that she did not ever wash her hair, and that she did not use deodorant/antiperspirant because the family shared one roll-on deodorant and she did not want to use it or could not find it. When asked about these difficulties, Mrs. Vermeulen stated that the children were lying and that she was waiting on a check to buy the items that they needed. On two separate occasions, this therapist arranged for a PsychSolutions Activities Coordinator to come to the home to do the children's hair, but Mrs. Vermeulen canceled both appointments. In August of 1997, Ms. Bridges made another visit to the Respondent's home. Again, the condition of the home was the same as it had been on the two prior visits. Again, the foster children were unkempt and unclean. Ms. Bridges decided, primarily because of the lack of improvement in the condition of the home and the lack of improvement in the care of the foster children, that the foster children should be relocated to another foster home. In the course of making arrangements for the relocation, Ms. Bridges discovered a several month supply of prescription medicines for the three foster children. The amount of the prescription medicines in the home confirmed that the foster children had not been taking the medicines with the frequency prescribed by the physician. On August 29, 1998, when Ms. Leidtke arrived at the Respondent's home, she found that the Respondent's other son, M. V., was sitting at the Respondent's home visiting with the Respondent. M. V. is the Respondent's adopted son. In August of 1997, M. V. was 18 or 19 years old. On that day, M. V. had apparently escaped from a residential treatment program, where he had been confined for approximately four years. M. V. was being treated because, approximately four years earlier, he had sexually assaulted one of the Respondent's foster children, as well as the Respondent's adopted daughter. The foster child who had been sexually assaulted by M. V. was still living in the Respondent's home. M. V.'s presence in the home was very upsetting to that child. Later the same day, the police were called and the police returned M. V. to the treatment facility from which he had escaped. On August 29, 1997, the DCFS removed the foster children from the Respondent's home and placed them in another foster home.
Recommendation Based on all of the foregoing, it is RECOMMENDED that a final order be issued in this case denying the Respondent's application for renewal of her family foster home license. DONE AND ENTERED this 15th day of March, 1999, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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, 1999.
The Issue The issues in these cases are: whether the Davis Family Day Care Home violated provisions of chapter 402, Florida Statutes,1/ and Florida Administrative Code Chapter 65C-20,2/ and, if so, what penalty should be imposed; whether the Davis Family Day Care Home's renewal application for a license to operate a regular family day care center should be approved or denied; and whether the Davis Family Day Care Home's initial application for a license to operate as a large family child care home should be approved or denied.
Findings Of Fact The Parties The Department is responsible for inspecting, licensing and monitoring child care facilities such as the one operated by the Davis Day Care. It is also the Department's responsibility to ensure that all such facilities are safe and secure for the protection of the children utilizing those facilities. The Department routinely conducts inspections of licensed family day care homes to determine whether the home is in compliance with the applicable statutes and rules. Following such inspections, a report is provided to the operator which provides a time frame to correct any outstanding deficiencies. The Department also conducts inspections or investigations of child care facilities in response to complaints it receives. LaShandra Davis (Ms. Davis) owns and operates the Davis Day Care, a family day care facility licensed by the Department. The Davis Day Care was initially licensed in April 2007 and was in continuous operation at all times material to these issues. No testimony was offered that the facility had prior disciplinary actions against it. Ms. Davis is a nurse, has an associate of science (A.S.) degree in nursing from Polk Community College, and is attending college to obtain an A.S. degree in early childhood education. Additionally, Ms. Davis has five sons and one daughter. Their names include (from youngest to oldest): Layla Davis, Steven Davis, Devondrae Davis, Deshawn Williams, Daniel Williams, and Rafael Davis. No testimony was received regarding Ms. Davis using any other name or names from August 3, 2010, through December 2, 2010.5/ On February 23, 2011, Ms. Davis submitted an application to obtain a license to operate a large family day care home at her current location. On March 15, 2011, Ms. Davis submitted her renewal application to retain her license to operate a family day care home at her current location. October 29, 2010, AC 1 (August 3, 2010, Inspection) On August 3, 2010, the Davis Day Care was subjected to an inspection based on a complaint that it was "over-ratio." This over-ratio issue involves the number of children in the care of a family day care operation to the number of adults providing that care. The Department received a complaint that the facility was seeking meal reimbursements for more children than were allowed for the type of child care license it held. Vicki Richmond (Ms. Richmond) testified that she conducted the inspection on August 3, 2010, and cited the facility for being over the licensed capacity ratio by more than two children. Because the facility was over ratio by more than two children, it was a Class I violation. At that August inspection, Ms. Davis explained to Ms. Richmond that she (Ms. Davis) had a license to provide child care for ten children, and she had ten children in her care. Ms. Richmond explained the ratio requirement to Ms. Davis. Based on the age of the children, Ms. Davis was authorized to have a maximum of ten children provided no more than five were preschool age, and, of those five, no more than two were under 12 months of age. At this August inspection, Ms. Davis was over-ratio by two children. Ms. Davis executed and received a copy of the complaint report prepared on August 3, 2010, that discussed the over-ratio limitations. Three other technical violations were brought to Ms. Davis's attention during that inspection, and two of those violations were corrected immediately. Ms. Davis was given a two-week extension to correct the third violation involving an expired fire extinguisher.6/ Additionally, Ms. Richmond testified that Ms. Davis's mother ("Ms. Jones")7/ was visiting the facility while Ms. Richmond was conducting this August inspection. According to Ms. Richmond, Ms. Jones had been previously screened, but did not meet the Department's standards to be in a child care facility. Ms. Jones should not have been present either for a visit or to be preparing lunches as the testimony revealed. Ms. Richmond recommended to Ms. Davis that it was important to check into getting an exemption for Ms. Jones to be at the facility. Ms. Davis later testified that Ms. Jones had cleared up the screening issue, and both had been told Ms. Jones was allowed to be present at the facility. At hearing, Ms. Davis admitted that she was over-ratio on August 3, 2010. Further, she stated that she "just flat out misunderstood" the adult-child ratio requirement issue until Ms. Richmond explained it to her in August 2010. Ms. Brooks and Mr. Giordano testified that they had each individually explained the ratio requirement to Ms. Davis during prior inspections or discussions at the facility. Although there is some discrepancy between Ms. Davis's recollection and the two witnesses on this point, Ms. Davis admitted this violation and was quite candid about her lack of knowledge with respect to it. Credible testimony from both Ms. Richmond and Shelia Nobles (Ms. Nobles) established that having two or more children over-ratio was a Class I violation, which would subject any child care facility to discipline by the Department. When Ms. Davis received the Department's three-page October 29, 2010, AC 1 advising her of the Class I violation (over-ratio by two or more children) and assessing a $500 fine, she was "shocked." Ms. Davis testified that, at the time of the inspection (August 3, 2010), Ms. Richmond had stated the fine might be $50 or maybe more, leading Ms. Davis to believe the fine would not be that high. AC 1 advised Ms. Davis that the over-ratio issue was a Class I violation of section 402.302(7). AC 1 provided one Department address for two reasons, to pay the $500 fine or to request an administrative hearing. There is no language within AC 1 that advised Ms. Davis of an optional payment plan. Ms. Davis testified she was unaware of a payment plan option, and her only option was to appeal the decision, which she did. Ms. Richmond confirmed that the Department would accept payments as long as the total fine amount was paid in full prior to the next renewal. However, that information was not shared with Ms. Davis until the hearing. Department's March 23, 2011, Proposed Denial Application to Operate a Family Day Care Home (AC 2) and Department's April 11, 2011, Proposed Denial Application to Operate a Large Family Day Care Home (AC 3). Both AC 2 and AC 3 set forth five allegations in support of the Department's denial of the renewal application and the large family child care home application. Two alleged abuse allegations from 2007 and 2008 were included in these administrative complaints; however, as previously stated, no testimony or evidence was offered, presented or substantiated at hearing. Thus, any attempt to reference either the 2007 or 2008 allegations as fact is disregarded as unfounded and not supported by credible testimony or evidence. AC 2 and AC 3 rest on three allegations: the alleged abuse of child E.B., the alleged lying during the investigation of the alleged child (E.B.) abuse, and the inspection conducted on August 3, 2010, regarding the facility being over ratio.8/ Natalie Barton (Ms. Barton), E.B.'s mother, testified that she saw marks on E.B.'s bottom at the end of November 2010 (November 30, 2010) that "could only have occurred at the day care." Ms. Barton testified she picked E.B. up from the facility prior to 5:30 p.m. and discovered the marks on E.B.'s bottom during bath time that evening. Both Ms. Barton and Ms. Davis testified that E.B.'s mother sent a picture of the injury to Ms. Davis via her cell phone the evening the injury was first seen. At that point, Ms. Davis told E.B.'s mother that she (Ms. Davis) didn't know what or how the injury occurred and recommended taking the child to E.B.'s doctor. Ms. Davis had no hesitation in making this recommendation to Ms. Barton. Ms. Barton took E.B. to her (E.B.'s) pediatrician the morning after she discovered the injury (December 1, 2010). However, E.B.'s physician indicated he wanted to see the child in two days, as he could not make a determination what, if anything, had caused the injury as there was no bruising. Ms. Barton also testified that she took E.B. back to the Davis Day Care after she was seen by her pediatrician so she could see how E.B. reacted. While at the facility, E.B. was "in her routine," that she (E.B.) walked in and sat on the couch like she did every day. Ms. Barton did not return E.B. to her own pediatrician for further evaluation. Ms. Barton testified E.B. was seen by the child protective team the day after she was seen by the pediatrician (December 2, 2010). On December 2, 2010, after receiving information about the possible physical abuse of a child (E.B.) (documented as being received at 11:08 p.m. on December 1, 2010), Deanna McCain (Investigator McCain) contacted Ms. Barton to obtain additional information. Investigator McCain also spoke with E.B., who said she had been hit by "Ms. Shawna." After observing E.B.'s injuries and obtaining a photograph of E.B.'s buttocks, an appointment was made for E.B. to be seen by a member of the child protection team, i.e., the nurse practitioner. During the afternoon of December 2, 2010, Nurse Practitioner Connie Fleming (Nurse Fleming) performed a medical evaluation of E.B., a then two-year, nine-month old child. During E.B.'s evaluation, Nurse Fleming noticed bruising on E.B.'s buttocks. When Nurse Fleming asked E.B. what happened, E.B. responded "Ms. Shawn spanked me." Nurse Fleming stated the bruising appeared to be consistent with an outline of a hand. Pictures taken during the medical evaluation reflect red areas on E.B.'s buttocks. Based on her nine-plus years of training and experience as a nurse practitioner, Nurse Fleming determined that E.B. had suffered physical abuse; however, she never stated who caused the injury. Nurse Fleming contended that the injuries were indicative of a rapid-force compression injury, typical of a slap with a hand. Later on December 2, 2010, Investigator McCain went to the facility to investigate the alleged abuse report. Upon her arrival at the location, Investigator McCain had to wait for a local law enforcement officer (LEO) before she could enter the facility. While Investigator McCain waited for the LEO to arrive (between 3:30 p.m. and 4:45 p.m.), she spoke with parents who were picking up their children from the facility. Each parent she spoke with had supportive comments about the facility ("great day care provider," their child had "no injuries," had never seen "inappropriate behavior," "no concerns"). Whether all these comments came from one parent or multiple parents is unclear. Investigator McCain did not observe any injuries to any of the children leaving the facility. Ms. Richmond also went to the facility at approximately the same time as Investigator McCain; however, Ms. Richmond could enter the home without a LEO, and she did so. Ms. Richmond made contact with Ms. Davis and explained there was a complaint. Ms. Richmond's task at the time was to obtain information about the number of children Ms. Davis had in the facility. According to the sign in sheet, there were seven children present, plus Ms. Davis's four-year-old son. Ms. Richmond testified that Ms. Davis initially stated there were four children present, but later a sleeping child was found in a crib, and her (then) four-year-old son ran through the home.9/ Although Ms. Richmond asked for the attendance sheets for the previous month (November 2010), Ms. Davis was only able to provide the attendance sheets for December 1 and 2, 2010.10/ According to Ms. Richmond, those two attendance sheets documented that Ms. Davis's facility was again over-ratio for those two days. When Investigator McCain entered the facility with the LEO, she explained the reason for her presence to Ms. Davis. Investigator McCain testified Ms. Davis was asked how many children were present and together they conducted a "walk- through" of the facility. Investigator McCain testified that, at the time of the walk-through, she was told there were four children present, three toddlers and a small child in Ms. Davis's arms. Investigator McCain also testified that, during the walk-through, they found an additional child sleeping in a crib. She further testified that, at some later point, another young child ran through the facility, and Ms. Davis identified him as her son. On December 2, 2010, Investigator McCain questioned Ms. Davis about the alleged physical abuse of E.B. During the investigation discussion, Ms. Davis reported to Investigator McCain that "she [Ms. Davis] had no idea how they [E.B.'s injuries] occurred." Ms. Davis further reported E.B. was "fully potty trained." Ms. Davis reported that the child had a toileting accident the day before and had cleaned herself. Still, later in the investigation discussion, Ms. Davis told Investigator McCain that she (Ms. Davis) had helped clean E.B. after the toileting accident, but only from the front, and she had not observed E.B.'s buttocks. Ms. Davis also shared with the investigator that when Ms. Davis questioned E.B. about the injury, E.B. said her mother (Ms. Barton) did it (the abuse). At hearing, Investigator McCain testified that Ms. Davis was "very far along in" a pregnancy and that Ms. Davis was upset, shocked, and surprised by the presence of the investigators. Investigator McCain also confirmed that DCF's presence tends to raise anxiety levels and that people feel like they are being attacked. Further, Ms. Davis confirmed that she was two weeks from her delivery due date when this investigation started. Thus, under the circumstances, forgetfulness may be perceived by some as lying, when in reality it is simply being overwhelmed by the situation. As part of the investigation, it was Investigator McCain's responsibility to also check for any hazards in the facility and to ensure adequate supervision of the children. Although Ms. Davis initially reported there were no other adults to supervise the children, she later reported that her mother, Ms. Jones, came each day around 10:15 a.m. to make lunch for the children. Ms. Barton confirmed that Ms. Jones was sometimes present in the mornings when Ms. Barton brought E.B. to the facility. Several technical violations were noted during the December 2010 investigation; however, they are not the subject of this hearing. Ms. Davis testified she did not spank E.B. Ms. Davis testified that she did not know how the injury occurred, and the child's hearsay statement that her mother had spanked her is not supported by other testimony. However, the time lapses between when the injury was alleged to have occurred (the "end of November," or November 30, 2010, according to the mother), when the injury was "discovered" (the night of November 30, 2010, according to the mother), when the alleged abuse was reported (December 1, 2010, at 11:08 p.m.), when the pediatrician's examination occurred on December 1, 2010, and when the child protective team became involved (December 2, 2010), create confusion and doubt as to when the injury actually occurred and by whom. Even taking the thought process to try to find that the events happened a day later does not relieve the doubt or confusion, nor is that supported by the Department's documentation. Investigator McCain testified that this investigation was closed with a verified finding of physical injury to E.B. However, simply finding a "verified finding of physical injury to E.B." does not establish who perpetrated that physical injury. No testimony was provided that any other possible explanation for the injury was explained. Further, other than indicating that E.B. had red marks on her bottom, no testimony was provided that indicated the degree of harm to the child. That being said, this not to say that logic has left the building with respect to some harm being caused to the child. There were marks on E.B.'s buttocks. Several current and former parents of children who attend or attended the Davis Day Care testified on Ms. Davis's behalf. Each testified that they did not have any concerns with their child attending Ms. Davis's facility. On March 11, 2011, after receipt of the facility's application for the large family day care home license,11/ the Department conducted an inspection of the facility and found it to be in compliance with all the licensing standard requirements (including those previously cited during the December 2010 inspection that were corrected). Upon completion of its investigation, the Department determined to deny Ms. Davis's renewal application and to deny her application for a large family day care license, based on "numerous complaints to our office alleging physical abuse of children in your care and Class I violations of licensing standards." There was one verified complaint of abuse, not "numerous complaints" as alleged. There was a Class I violation regarding the over-ratio issue; however, that could have been resolved with better communication skills. The misrepresentation could have been avoided. Neither notification includes any indication that the March 11, 2011, inspection was taken into consideration prior to making the denial decision. The Department presented testimony indicating that there had been past complaints regarding Ms. Davis and/or the facility. However, no documented prior complaints or final orders were submitted with respect to any prior actions.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: With respect to the October 29, 2010, administrative complaint, that a final order be entered by the Department of Children and Families finding that the facility was over-ratio on August 3, 2010, and imposing an administrative fine of $500 with no less than ten months to pay the fine. It is further RECOMMENDED that Ms. Davis be ordered to attend remedial classes on the financial operations and management of a child care facility; With respect to the March 23, 2011, administrative complaint, that a final order be entered by the Department of Children and Families renewing the family day care home license on probation status for six months with periodic inspections to ensure the continued safe operation of the facility; and With respect to the April 11, 2011, administrative complaint, that a final order be entered by the Department of Children and Families finding that the large family child care home application be issued a provisional license for a minimum of six months with periodic inspections to ensure the continued safe operation of the facility, with the ability for an additional six-month provisional period. In the event the large family child care home provisional license is not activated within two months of the issuance of the final order in this matter, a new application shall be required, subject to all the applicable statutory requirements. DONE AND ENTERED this 25th day of October, 2011, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of October, 2011.
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner's license to operate a family daycare home should be suspended based upon the Petitioner's husband's plea of nolo contendere to a disqualifying second degree felony.
Findings Of Fact The Petitioner, Sislyn Gonsalves, has operated a family daycare home at times pertinent hereto, including in 2005 up through the time of the hearing, pursuant to license number F12V00010. The family daycare home is located at 2820 Lake Helen Osteen Road, Deltona, Volusia County, Florida. The Petitioner and her husband Clayton A. Gonsalves have had repeated disciplinary problems with their 13 year old son, K. G. K. G. had been repeatedly in trouble at school and may have been involved in an incident involving a theft, of which his parents became aware. On or about April 16, 2005, an incident occurred in the Petitioner's home. The Petitioner's husband Clayton Gonsalves and the Petitioner were trying to leave for church that morning and to persuade their son K. G. to attend church with them. An argument between the son and Mr. Gonsalves ensued. During the incident Mr. Gonsalves picked- up a short piece of light weight PVC pipe, approximately three feet by three quarter's of an inch, and struck his son several times on the left shoulder and the right hand. The persuasive evidence in this case is that the blows with the light weight PVC pipe did not leave marks. The son, K. G., being angry and upset at the time, abruptly left the family premises. The Petitioner and her husband and other child thereupon preceded to attend church. Later that day, after the incident had apparently been reported to the police, the police arrested Mr. Gonsalves and charged him as having committed child abuse. On or about May 11, 2005, Mr. Gonsalves entered a plea of nolo contendere on a charge of aggravated child abuse, which is a second degree felony. This resulted from the incident described above. As a result of that plea Mr. Gonsalves was sentenced to a term of three years of probation, and adjucation was withheld. As a condition of his probation he was ordered to have "no violent contact" with the victim, K. G., and to "comply with the Department of Children and Family's conditions and case plans." Mr. Gonsalves works in the State of New York as a plumber. He returns to his family residence, to be with his family, whenever possible, between jobs. He resides there with the Petitioner and their children at such times. He is often present in the family residence while the Petitioner is providing daycare for other children and often assists her in providing care for the children. The unrefuted, persuasive evidence adduced by the Petitioner through her testimony and that of her witnesses establishes that she and her husband are loving parents who do not maintain an abusive home. They treat their own children and the children they provide daycare for, as clients, in a loving, responsible and positive way. The Petitioner is in the process of earning her college degree in Early Childhood Education and desires to continue in the business of providing daycare. The lack of an abusive climate in the home is borne out by the fact that the Petitioner's and Mr. Gonsalves's children are in the gifted program in school, and by the fact that K. G.'s grades and scholastic standing at school have marketedly improved since the incident in question. The Petitioner's witnesses, particularly her mother, described Mr. Gonsalves as a loving husband and father who does not commit abuse, who does not drink, smoke or abuse his wife or children. Witness Ayallo, the agency's Licensing Inspector, established that the Petitioner's family daycare home is always in compliance with relevant regulatory rules and statutes, and he corroborated the Petitioner's testimony concerning the history of disciplinary problems caused by her son. Witness Surgine, the Agency's Licensing Specialist established that the Agency only wanted to suspend the licensure because of the fact that the husband, Mr. Gonsalves, would, on occasion, be present in the home when child clients are present. The Agency did not feel that the incident justified a revocation of license. This is an unfortunate, isolated incident. The persuasive evidence of record shows that Mr. Gonsalves is not an abuser of his children, the children of others or his wife, the Petitioner. The Petitioner is operating her facility as an exemplary family daycare home and desires to continue to do so. Even though she and her family are enduring rather straitened financial circumstances, she is successfully pursuing a college degree in Early Childhood Education. The testimony of Ms. Corchado, whose son has been cared for by the Petitioner in excess of three and one-half years, corroborates the exemplary record and caring atmosphere maintained by the Petitioner in operation of her family daycare home. Ms. Corchado has tried many daycare facilities and believes that the Petitioner's is the best one she found in terms of providing a loving, positive, environment for her son. Her son "adores the Petitioner and her family" and has become very close to them, even attending church with them on occasion. The Petitioner helps her son with his school work and Ms. Corchado has never observed or learned of any abuse occurring in the home. The incident which occurred with Mr. Gonsalves and his son is clearly an isolated unfortunate occurrence. It was deeply regretted by all concerned even before the Agency Respondent became aware of it. It is ironic that the Petitioner, who has conducted an exemplary child care facility operation, has been placed at risk for losing her licensure status while other child care facilities licensed by the Respondent with more violations of record which can impinge on the adequate care of children can remain licensed under corrective plans and procedures. The Agency, commendably, has recognized the unjust, automatic operation of the statute at issue herein, in terms of the Petitioner's particular circumstances and incident, by declining to seek revocation of licensure but merely suspension until the issue of Mr. Gonsalves's residence in the daycare facility is resolved. In any event, this was unfortunate effort at child discipline which became a little too heated and went awry. As the Petitioner pithily and eloquently put it, "If you don't discipline your children, they will grow up and the police will do it for you."
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Department of Children and Family Services suspending the license of the Petitioner for the above found and concluded reasons but that the suspension be stayed while, under appropriate Department supervision, the Petitioner and Mr. Gonsalves resolve the issue of his residence within the family daycare home location possibility of the licensed daycare home being re-located to another premises or while Mr. Gonsalves acts to secure an exemption (if successful) from the above-referenced disqualifying offense. DONE AND ENTERED this 4th day of January, 2006, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with Clerk of the Division of Administrative Hearings this 4th day of January, 2006. COPIES FURNISHED: Gregory Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Sislyn Gonsalves 2820 Lake Helen Osteen Road Deltona, Florida 32738 George P. Beckwith, Jr., Esquire Department of Children and Family Services 210 North Palmetto Avenue, Suite 440 Daytona Beach, Florida 32114-3269
The Issue The issue is this case is whether revocation of Respondent's Foster Care license privilege for his past and present conduct, determined by the Department of Children and Family Services (hereinafter Agency) to be inappropriate, was proper under Section 409.175, Florida Statutes.
Findings Of Fact Under Section 409.175, Florida Statutes, the Department of Children and Family Services is the State Agency responsible for evaluating, qualifying, licensing, and regulating family foster care homes. On or about November 5, 1999, the Agency, after Mr. Thibodeau's successful completion of the Agency's evaluation and qualifying procedures, determined Mr. Thibodeau to be of good moral character. At all times material to the application process, Mr. Thibodeau answered completely and truthfully each question contained on each standard application form and other documents presented to him by the Agency during the foster care home application process. Based upon its determination, the Agency granted Provisional Certificate of License, No. 1999-110-002, for Substitute Family Home care privilege to Mr. Thibodeau. Thereafter, the Agency placed three minor children in Mr. Thibodeau's home: two teenaged brothers, David M. and Daniel M., and seven-year-old Steve. After an unspecified period of time together, bonding began to develop between the brothers, Daniel and David, and Mr. Thibodeau. As a result of a mutual agreement, Mr. Thibodeau submitted an adoption application to the Agency to become the adoptive parent of the brothers David M. and Daniel M. At all times pertinent hereto, Mr. Thibodeau answered completely and truthfully each question contained in the standard application forms and other documents presented to him by the Agency during the adoption application process. Ms. Georgia Alezras, trainer for the Model Approach to Partnership in Parenting (MAPP) classes and Mr. Kelvin Birdsell, family therapist and continuity specialist, made a home-study visit to the Thibodeau residence at some time between early July and August 15, 2000. Mr. Birdsell testified that he confined his conversations to the brothers, David M. and Daniel M. during the visit. Mr. Birdsell further testified that his conversations with the brothers were separate and away from the presence and hearing of Ms. Alezras and Mr. Thibodeau, who conversed privately. On July 26, 2000, after Mr. Thibodeau submitted his adoption application, and after the home study visit by Ms. Alezras, the Agency received a confidential telephonic abuse report, Petitioner's exhibit number one.1 The abuse report contains an interpolation of the private conversation between Ms. Alezras and Mr. Thibodeau during the earlier home-study visit. Ms. Carolyn Olsen, Family Counselor Supervisor, testified that Ms. Georgia Alezras reported her private conversation with Mr. Thibodeau to her Agency supervisors. The Agency's interpolation of the Alezras-Thibodeau conversation formed the factual allegations contained in the Agency's August 18, 2000, revocation letter. Sergeant Hagerty, Pasco County Sheriff's Office, testified that she and Sergeant O'Conner investigated the abuse allegations, consisting solely of the Agency's interpolation of Ms. Alezras' earlier and prior conversation with Mr. Thibodeau, by checking with authorities in Washington and checking with the National Criminal Information Center (NCIC) with negative results. The removal of the children from Mr. Thibodeau's home was based upon a joint decision to be safe and take a preventative approach in this matter. Petitioner's exhibit number two, a composite of eight letters, contained a "Closing of Foster Home For Children" report form, with a "foster home closing date" of August 18, 2000, and the caseworker and supervisor's signature on the date of August 22, 2000. The report, under "reason for closing" heading, contains the following comments: [H]is license was revoked because he recently divulged information about his past, that, had we known these facts prior to licensing, would have disqualified him to act as a foster parent---namely, he stated that some years ago he left the state of Washington with an unrelated male child without parental or state permission and lived with him for years under false identification. Ms. Georgia Alezras did not testify. Mr. Thibodeau's testimony is the only evidence of the private conversation with Ms. Alezras. Mr. Thibodeau's recollection of his responses to Ms. Alezras' questions was: [I]n 1975 he moved to the State of Washington; in 1976-77 he met Daniel L.; in 1976-77 he left the State of Washington and moved with Daniel to Pennsylvania where Daniel enrolled in school using his Washington school records; Daniel's mother visited them in Pennsylvania and maintained contact by telephone; Daniel, at age nineteen returned to Washington. He used a friend's birth certificate to secure his Pennsylvania driver's license. His video business2 considerations were subsequently dismissed and he advised the Agency of his decision by letter to his caseworker. Ms. Carolyn Olsen, Agency Representative, testified that one member of every MAPP team always asks a general, catchall question of every [foster care parent] applicant: "Is there anything else we need to know [about you], please tell us, [because] we will probably find out?" Ms. Olsen's candor and purpose comes into question on this point. She was not present during the Alezras-Thibodeau private conversation. Ms. Olsen does not know the identity of the team member who would have asked her catchall question nor does she know of a rule, guideline, or checklist requiring that specific question to be asked of every foster care license applicant, and there was no corroboration of her testimony. The Agency presented no evidence in support of its allegation that during the application process, its failure to inquire and Mr. Thibodeau's failure to disclose activities 20 years earlier in his life resulted from negligence or from the malicious intent of Mr. Thibodeau, and materially affect the health and safety of the minor children in his foster care. The Agency has failed to establish that Mr. Thibodeau left Washington with an unrelated minor child without parental consent and obtained false identification for the child. While it is true that Mr. Thibodeau "left Washington with an unrelated minor child," the Agency produced no evidence that his leaving was "without [minor child's] parental consent." Agency's investigators were unable to make contact with either the child or his mother. No investigation was made of the State of Washington's Motor Vehicle Department. No contact was made with the Pennsylvania authorities. Assuming argunendo, the Agency intended upon establishing this element by "an admission by Mr. Thibodeau"; they presented no evidence Mr. Thibodeau, in fact, uttered words to the effect of or acknowledged the comment "without parental consent." The undisputed evidence is Mr. Thibodeau's testimony that the minor child's mother not only approved of the child leaving Washington with him, but she also visited them in Pennsylvania and had telephone conversations with her child during his stay there. On this issue the Agency failed to carry its burden by clear and convincing evidence. Mr. Thibodeau admitted his use of another's birth certificate to secure a Pennsylvania driver's license more than 20 years ago. Since that time, Mr. Thibodeau's conduct, foster care parenting skills, helping problem young boys, and good moral conduct has been, as testified by the several witnesses, exemplary.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services enter a final order reinstating to Stanley Thibodeau his foster care home license privilege. DONE AND ENTERED 21st day of March, 2001, 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 21st day of March, 2001.
The Issue Whether Petitioner's application for re-licensure as a family foster home should be approved or denied.
Findings Of Fact Petitioner, Lorraine Arnold, has operated a foster home since 1995 at her current place of residence. Petitioner applied for and was granted a family foster home license in January 1995. Petitioner was approved for placement of up to two children between the ages of 5 and 10 years. Foster home licenses are valid for one year and must be renewed annually. Petitioner's license was renewed annually thereafter. On December 15, 2000, Petitioner applied to renew her foster home license. Respondent denied Petitioner's application for renewal on March 9, 2001. During the relevant time-period in 2000, Petitioner was entrusted with responsibility for several children, including two teenage foster children, L. C. and J. B. In late August 2000, Respondent's case worker approached Petitioner with the request to accept into her home L. C., a 17-year-old female. Petitioner was told that L. C. was severely emotionally disturbed (SED), had violent behavior problems and was taking psychotropic medication. Because of L. C.'s history of behavioral problems, including incidents of violence, Respondent offered to contract with a private company to provide Certified Nursing Assistant (CNA) services to supplement the care given to L. C. Contract CNAs were to be present with L. C. around the clock, in order to provide Petitioner and her family some semblance of protection in the event of a violent outburst by L. C. This case worker assured her that under the watchful eye of the CNAs, L. C. would do fine. Petitioner was provided with additional monetary inducements by Respondent in order to persuade Petitioner to take in L. C. Upon placement, L. C.'s "Blue Book" was not provided to Petitioner. The "Blue Book" contained critical medical and social information about L. C. In addition, L. C. was not under the care of any local healthcare professional at the time of placement. Although Petitioner is a licensed pharmacist in Florida, she has received no special training in dealing with SED children. No specialized training of any kind was provided by Respondent during the two months that L. C. lived in Petitioner's home. Respondent was aware that L. C.'s needs required that she be placed in a living situation where she could receive proper therapy for her special needs, but none was provided. Respondent's conduct in the placement of L. C. in Petitioner's home violated its own guidelines and demonstrated very poor judgment on its part. The presence of contract CNAs was not intended to, nor did it in fact, relieve Petitioner of her responsibility to supervise foster children in her care. However, Petitioner was not instructed by Respondent that the teenage children in her care were not permitted to be alone or leave with the CNA, if the CNA offered to take them out for a supervised activity. In August of 2000, Petitioner gave L. C. and J. B., both minor girls, permission to go with the CNA, then on duty, to the home of L. C.'s aunt. While at the home of L. C.'s aunt, J. B., then fourteen years old, slipped out of the house and smoked marijuana. When J. B.'s case worker learned of the incident, she had J. B. tested for drug usage; J. B. tested positive for marijuana. Petitioner had L. C. tested and her test results were negative. Carla Washington, case worker for both L. C. and J. B., had previously informed Petitioner that L. C. was not to have contact with family members that was not supervised by Respondent. Petitioner misunderstood the instructions, and believed that L. C. was only restricted from having contact with her mother. Petitioner was not negligent in this incident, and J. B.'s misconduct could not have reasonably been foreseen. Less than a month before the incident in which J. B. smoked marijuana at L. C.'s aunt's house, there were two other incidents involving J. B. and L. C., with results detrimental to the foster children. On one occasion, Petitioner gave permission for the CNA on duty to take L. C. and another foster child out to the movies. Because of a family emergency, Petitioner left Orlando and drove to Tallahassee, leaving her adult daughter in charge of the household. The CNA took the two foster children to her residence, changed into "hoochie" clothes, went to a bar during which L. C. visited with her mother and witnessed a shooting. After the incident, the case worker spoke to Petitioner and reminded her that L. C. was not to have unsupervised contact with her mother. Petitioner complied with these instructions. No evidence was presented concerning the disposition of the CNA that perpetrated this outrageous conduct. Petitioner was not negligent in giving permission for the girls to go to the movies, and the CNA's conduct could not have been foreseen. On September 14, 2000, Petitioner was placed in a position of duress in regard to L. C. She had not received L. C.'s Blue Book, which contained all of her medical records and her Medicaid number, and L. C. was out of all of her psychotropic medications. Petitioner tried several times to find a psychiatrist who would treat L. C. She spent 2 days looking through the telephone book and calling every psychiatrist until she found one who would accept Medicaid. She also went to the Nemours Children's Clinic and spent most of the day waiting at the Sanford Health Department, where Petitioner finally discovered that L. C. could only be seen by a doctor in the Oviedo area. When the doctor in Oviedo was contacted an appointment was made for the following day at 2:00 p.m. Petitioner contacted the caseworker for assistance in getting L. C. to the doctor's appointment because Petitioner was unable to remain out of work for a third day. The case worker informed Petitioner that she was unable to assist, and if Petitioner did not see that the child got to the doctor any repercussions would be Petitioner's responsibility. Petitioner was given no choice but to rely on a family member to assist in making sure that L. C. received the required medical attention. Petitioner asked a family member to take L. C. and J. B. to the doctor's appointment. He left them in the reception area for 20 minutes to run an errand while L. C. waited to see the doctor. Before he returned, L. C. and J. B. misbehaved at the doctor's office. The adult family member did not have reason to believe that these two teenagers could not be left alone at a doctor's office for 20 minutes. He expected that the teenagers would behave themselves for such a short period of time. During the course of her testimony in this matter, J. B. testified that she had sexual relations in the house while living with Petitioner. This testimony is neither credible nor relevant to this proceeding. Petitioner has not committed an intentional or negligent act which materially affected the health or safety of L. C. or J. B. while in her care. Several years in the past, Petitioner used corporal punishment on a much younger, uncontrollable foster child on more than one occasion. Upon receiving counseling from her case worker, Petitioner agreed to corrective action to address her improper use of corporal punishment of foster children entrusted to her care. Over time, Petitioner has displayed extreme care and concern for the children placed in her care. She has taken the issues of supervision seriously. Petitioner has demonstrated that as a foster mother she has given the children placed in her care an abundance of love. She has taught them how to care for and love themselves. She has been there to listen to their needs and their desires, and she cares about them. She has taught them that self- control, self-discipline and hard work will lead to success in life.
Recommendation Therefore, it is RECOMMENDED that the Secretary grant Petitioner's application for renewal of her family foster home license. DONE AND ENTERED this 23rd day of October, 2001, in Tallahassee, Leon County, Florida. 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 23rd day of October, 2001. COPIES FURNISHED: Lorraine Arnold 3997 Biscayne Drive Winter Springs, Florida 32708 Craig A. McCarthy, Esquire Department of Children and Family Services 400 West Robinson Street Suite S-1106 Orlando, Florida 32801 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 Whether denial of Respondent's re-licensure application as a Foster Care Home for the reasons stated in the Department's denial letter of October 30, 2000, was appropriate.
Findings Of Fact Based upon observation of the witnesses and their demeanor while testifying, the documentary materials received in evidence and the entire record complied herein, the following relevant facts are found: Under Section 409.175, Florida Statutes (2001), the Department of Children and Family Services is the State Agency responsible for evaluating, qualifying, licensing, and regulating family foster care homes. Petitioner, a single male, previously employed with an abused children agency in Broward County, Florida, was granted a foster care parent license by the DCF's Foster Care Licensing unit effective August 10, 1999, through November 10, 1999. A second child specific foster home license for G.K. was issued to Petitioner, effective from March 3, 2000, through August 10, 2000. DCF takes the position that Petitioner is not eligible for re-licensure as a family foster home primarily because he exhibited "poor judgment" relative to a single medical treatment, taking the temperature of an eleven-year-old male foster child through his rectum during the month of August 2000. DCF further alleges that Petitioner has willfully violated specific statutes and rules relating to the conduct and maintenance of the foster home. Those alleged violations are specified in the licensure denial letter dated October 30, 2000, from the DCF to Petitioner. Nicara Daniels is a foster care licensing unit worker with the DCF since November 1999. Ms. Daniels had on-the-job- training and some Professional Development Center Training for new employees. In the licensing unit, Ms. Daniels had training in physical abuse, sexual abuse, drug abuse, and emotional abuse toward children. The DCF used Ms. Daniels to provide testimony regarding each violation as they appeared in the letter of denial. Herein below the allegations are chronologically addressed. Medication and cooking wines in Petitioner's bathroom. On or about July 31, 2000, a period when Petitioner was licensed, Ms. Daniels, Child Protection Investigator assigned Petitioner, made an unannounced visit to Petitioner's home during a period when Petitioner was medicating himself. During her walk through Petitioner's bedroom she entered his bathroom and saw Petitioner's medication for his diabetes on the bathroom shelf along with several bottles of cooking wines. Ms. Daniels acknowledged that she observed the cooking wines in the bathroom. Along with bottles of medication she also observed the lock box in which Petitioner kept his medications and cooking wines when not in use. The door to Petitioner's bedroom and bathroom each had operative locks on them. Ms. Daniels knew that Petitioner took medication for his diabetic condition prior to this inspection and she acknowledged having no experience with the use of cooking wines. Rule 65C-13.011(14)(a) and (b), Florida Administrative Code, requires all medication, poisonous chemicals, and cleaning materials to be in a locked place and inaccessible to children, and that alcoholic beverages should be stored out of the reach of small children; with the recommendation that these beverages be kept in a locked place. Ms. Daniels admitted that for the children, all of whom were 11 years or older, to have access to the medication or cooking wines, they must enter the bedroom, go into the bathroom and open the lock box. There is no evidence presented of any foster care child having access to Petitioner's bedroom, bathroom or the locked medicine box at any time. In making the foregoing finding, I have considered Ms. Daniel's testimony that she knew Petitioner was on medication. Ms. Daniels, however, never questioned the children whether they entered or attempted to enter Petitioner's bedroom at any time when he was not present. I find the mere presence of medications and cooking wines in Petitioner's bathroom, absent other evidence, is not a violation of the cited rule. John Snider in Petitioner's Foster Care home. Ms. Daniels testified that during an early morning visit on an unspecified date in July of 2000, she observed a young man, John Snider, in Petitioner's home. After she advised Mr. Snider had to be screened, Petitioner followed the DCF's process and a screening application for Mr. Snider was submitted to the Department. The Department screened and cleared Mr. Snider and advised Petitioner and Mr. Snider by letter on August 21, 2000. Rule 65C-13.010(4)(g), Florida Administrative Code, requires that the foster care parent notify the department of the presence of such person. Rule 65C-13.007(1), Florida Administrative Code, requires screening for "all persons that provide respite care in the . . . home on an overnight basis must be screened." Rule 65C-13.009(6)(a)5., Florida Administrative Code, requires a criminal records check for "all persons 18 years and older residing in the . . . home." Petitioner, during a telephone conversation with Ms. Daniels on July 31, 2000, informed her that Broward Juvenile Justice placed Mr. Snider in his home on July 27, 2000. It is Ms. Daniels' opinion that a four-day period between entry and notifying DCF is not reasonable notification. This "unreasonable" delay formed the basis for violation of the cited rule, notwithstanding the particular circumstances. Rule 65C-13.007(1), Florida Administrative Code, which requires "all persons that provide respite care . . . must be screened.” I find Ms. Daniels' opinion that four days is not "reasonable" notification not based upon any protocol, policy or rule of the DCF. In making the foregoing finding, I have considered the following. Petitioner informed Ms. Daniels by telephone that there were matters to discuss; however, the discussion took place four days later when Ms. Daniels was available. The Department of Juvenile Justice for Broward County placed Mr. Snider in Petitioner's home. After submitting an application, Mr. Snider was screened and cleared by the DCF. Considering the evidence as a whole, I find Mr. Snider's presence in Petitioner's home, under authority of the Broward County Juvenile Justice unit, and with telephonic notice to the DCF's licensing unit worker four days after entry into the home is not unreasonable, under the circumstances. Home Department's placing of T.J. in Petitioner's Foster Sometime during the first week of August 2000, Robert Mistretta, Department's child protection investigator and T.J.'s initial case worker, removed T.J. from his family and sought overnight foster care for him. Mr. Mistretta, aware of T.J.'s family situation, his medical, physical, emotional, and sexually abusive history sought a foster care home with those factors in mind. The Department's placement unit instructed him to take T.J. to Petitioner's home for an overnight stay. Mr. Mistretta took T.J. to Petitioner's home with the intention of an overnight stay and reassessment of the situation the following morning. After discussion with Petitioner of T.J.'s need for an overnight stay, Petitioner agreed. Mr. Mistretta chose not to provide Petitioner with information regarding T.J.'s medical, social, physical, emotional, or abusive family history. However, Mistretta gave Petitioner the DCF's emergency pager phone number [570-3081] for use during non-working hours and for emergencies should the need arise. Rectal Temperature Taking What had begun as an overnight stay resulted in a permanent placement and on or about August 6 or 7, 2000, T.J. became ill. His illness began during the day and continuing into the night. According to Petitioner, T.J. exhibited symptoms of a cold or flu, including fever, chills and headache. During the night, he was restless, tossing and turning in his sleep. Petitioner, having no medical history on T.J., became concerned about T.J.'s condition. He made several calls to the Department's emergency pager number [570-3081] provided him by Bob Mistretta, without success. Petitioner then attempted to contact Dr. Stuart Grant, a pediatrician, to no avail. Petitioner thereafter attempted to use his MAPP training first aid guide provided by the Department, but found those instructions unclear. Petitioner then sought information concerning fever and temperature taking from the internet. During the night while T.J. was asleep, Petitioner used a rectal thermometer to take T.J.'s temperature, causing him to awaken suddenly, somewhat startled. Petitioner talked with T.J., explained his concerns with his condition and the reason for taking T.J.'s temperature in that fashion. T.J. responded in a positive manner and went back to sleep. The following morning, Petitioner contacted Mistretta and explained what had happened with T.J. the night before. Mistretta took T.J. aside and privately inquired if he understood "good" touching from and "bad" touching. T.J. stated he understood the difference. When asked about Petitioner's manner of touching him while taking his temperature during the night, T.J. affirmed that Petitioner's touching was a "good" touch and not a "bad" touch. Mistretta, based upon his experience working with children who had suffered abuse, accepted T.J.'s response as true. Satisfied that no "bad" touching occurred during the rectal temperature taking process, Mistretta reported the incident to his supervisor, including his conclusion that nothing sexually or abusive had occurred and concluded his report in part as follows: "This case is closed with no indicators. There is no maltreatment that addressed a bad choice of judgment by a caretaker. There are licensing [unit] concerns regarding Mr. Marlowe's choice to use a rectal thermometer on an 11 year old child." (Emphasis Added) Mr. Mistretta testified that his understanding of the sequence of events the night T.J. was ill were: T.J. was running a high fever and had trouble falling asleep. Petitioner tried cold cloths to reduce the fever that, according to Petitioner's monitoring, was getting too high. Since T.J. was having trouble sleeping and once he did sleep, Petitioner thought a rectal thermometer would be best to try not to awaken him, Petitioner chose to use that form of temperature taking. T.J. reacted with a little bit of pain. Based on Petitioner's history of dealing with sexually abused kids, that reaction is not normal. When Petitioner talked with him about what happened, T.J. disclosed his history to Petitioner. In the process of making the decision as to the appropriate treatment, Petitioner consulted with a Johnson and Johnson book and several medical web sites. The documents from the medical web sites were subsequently provided by Petitioner. I find Mr. Mistretta's testimony credible regarding his conversation with Petitioner immediately after the T.J.'s incident. Following the above, Ms. Mistretta, in addition to his duty as T.J.'s caseworker, was also assigned by his supervisor to investigate a hotline abuse report. Mr. Mistretta investigated the alleged abuse narrative report and found no indication of maltreatment. He recommended the hotline abuse report be closed. Upon being presented with the hotline abuse report narrative with suggestions and allegations of sexual abuse, Mr. Mistretta testified: "The information generated in this narrative in the reporter page that has reporter information states that the CPI, Robert Mistretta, told reporter about allegations. So the source of this report is me. The reporters made their own clarifications, answered their own questions regarding some things instead of calling me back to clarity, talked amongst themselves, found out that they didn't like what happened, and some of the narrative is not true. It is blown out of the water, if you would. The narrative was started by a report. When Mr. Marlowe talked to me, I talked to somebody who talked to somebody, who talked to somebody. The next thing you know we have sexual abuse. The narrative is not true. I did not agree with the removal of T.J. (Emphasis Added) I find Mr. Mistretta's testimony on this issue to be consistent and credible. In making the foregoing finding, I have considered the testimony of the DCF's other witnesses, none of whom had personal knowledge of the abuse report contents. However, Mr. Mistretta is the only witness with personal knowledge of events acquired in his positions as T.J.'s initial caseworker, his placement agent, the interviewer of T.J. and Petitioner, and the originator of the initial report. I have considered the fact that this incident occurred during the week of August 6-12, 2000. Petitioner's license expired on August 10, 2000. However, the DCF did not remove T.J. from Petitioner's home until September 6, 2000, almost a month later. I have also considered Ms. Daniels' testimony that during Petitioner's unlicensed period, DCF's placement unit continued to place children in Petitioner's home. I have also considered the deposition of Dr. Patricia Buck, M.D., pediatrician and Child Protection Team member for District 14 [Polk, Highland and Hardee counties], who was qualified as an expert in pediatrics and child abuse. After her review of documents provided by DCF and given the circumstances by DCF's counsel and Petitioner, Dr. Buck opined that use of a rectal thermometer would not have been her recommendation, had she been the care provider. According to Dr. Buck, anal temperature taking as a medical procedure is not abuse. Adding that the more medical history one has on a patient, the less likely a mistake in patient treatment. The evidence as a whole, including Mistretta's testimony and Dr. Buck's opinion, is persuasive as it relates to the issue of the circumstances and the "appropriateness" of the rectal temperature taking procedure. Accordingly, the testimony of Ms. Daniels, the licensing unit informs placement and other Department units of those parents who were licensed, parents who were not licensed or parents whose licenses had expired. She recalled attending the staffing meeting regarding the T.J. temperature incident and recalled informing staff that Petitioner was not a licensed foster care home after August 10, 2000. According to Ms. Daniels, placing children in a non-licensed home is not permissible. However, its her testimony that in this case, DCF's placement unit placed children in Petitioner's home during a period of time he was not licensed, and during the time T.J. was in Petitioner's home because of [DCF] "it being in a crisis situation with the number of homes we had." In making this finding, I have considered both the DCF's need for foster care beds and its concern for the safety of foster care children. I have also considered the DCF's use of Petitioner's home when they were "in a crisis situation with the number of homes we had." Screening of Ms. Scott Regarding the screening of Ms. Scott, Ms. Daniels testified Petitioner informed her that the screening application papers for Ms. Scott were submitted to the Department and had apparently come up missing. Ms. Daniels acknowledged that she had no evidence to support her conclusion that Ms. Scott was a respite sitter for Petitioner's foster care children; that she had never checked with the DCF to ascertain whether or not Ms. Scott had been screened. Not inquiring whether Ms. Scott had been screened renders Ms. Daniels' testimony questionable. I find Ms. Daniel's testimony regarding Petitioner's failure to provide the Department with Ms. Scott's application for screening not credible. Unwillingness to Provide Information on Mary Poe At some unspecified date, Ms. Daniels recalled she had a conversation with Petitioner regarding his next door neighbor, Ms. Poe, someone who would "check" on the foster children from time to time when Petitioner was late returning from work. Ms. Daniels did not recall if Ms. Poe entered Petitioner's home or gave the key to the children to enter in the home on days he was late returning from work. Ms. Daniels recalled only that, Petitioner's attitude regarding screening Ms. Poe was "uncooperative" and "defiant." During cross-examination Ms. Daniels could not recall the conversation with Petitioner when she was informed that Petitioner's condominium covenants required the manager to have a key to his apartment in case of emergencies. She did recall that Petitioner told her Ms. Poe was the mother of the condominium manager. Ms. Daniels recalled when she voiced concern with the situation Petitioner retrieved his key from Ms. Poe and returned it to the condominium manager for pick up by the children when they returned from school. I find Ms. Daniel's testimony regarding Petitioner's unwillingness to provide information concerning Mary Poe evasive, inconsistent and not credible. In making the foregone finding, I have considered Ms. Daniel's inability to recall facts, dates, times, places, regarding the matter to which she testified. I have considered the fact that Petitioner, when Ms. Daniels voiced concern, corrected the situation by removing the key from Ms. Poe's possession, thereby removing the need for screening by the Department. I have also considered Ms. Daniels' inability to recall facts regarding an incident the DCF considered an intentional refusal by Petitioner to "cooperate" and "communicate" with Department's staff. Confidentiality in Keeping a Life Book on Foster Care Children Ms. Daniels testified that Petitioner informed her the foster care children had a computer life book (photo album) website. After being directed to the website by Petitioner and after viewing the website, Ms. Daniels concluded Petitioner had "released" the names and photos of the foster children on the websites. Without providing a rational basis, she testified that keeping required foster child life books in an electronic format is, in and of itself, inappropriate. She further testified that placing the names and photos on the web site violated DCF's rule of confidentiality. Rule 65C.010(1)(c)4., Florida Administrative Code, requires the foster care parent to maintain the children's records which ensures confidentiality for the child and the biological parents. Petitioner maintained that each child made an individual and personal decision to use the computers he made available in his home. To his knowledge each child placed his personal information, name, foster care status, photos, etc., on the web sites during chats and exchange of information with others users in various chat-room conversations. Ms. Daniels never inquired of the foster children whose names and status were found on the book of life web sites to ascertain whether they or Petitioner placed personal information on the web site. I find her testimony on this issue to be questionable, but reliable. In making the foregoing findings, I have considered Ms. Daniels' testimony and the absence of evidence in support thereof. I find Petitioner's testimony that he never divulged any confidential information on the web sites regarding foster children in his care credible, but not persuasive. As the custodial parent, Petitioner has the ultimate responsibility to maintain and protect the confidentiality of the children in his care and under his supervision. Permitting children of divulge personal/confidential and potentially endangering information on the web site is a breach of Petitioner's parental responsibility. Removal of G.K. from medication prescribed by a Doctor DCF alleged that Petitioner removed G.K. from prescribed medication in violation of Rule 65C-13.010(1)(b)7.a, Florida Administrative Code, which imposes on the foster parent the responsibility for dispensing the medication as prescribed by the physician and recording the exact amount prescribed. In support of this allegation, the Department offered the testimony of Ms. Daniels. Ms. Daniels, by her admission, had no personal knowledge regarding G.K. and Petitioner's actions with G.K.'s medication. Her testimony was based upon what she had previously read in the file prepared by Stephanie Gardner, DCF's Representative and Petitioner's caseworker before the case reassignment to Ms. Daniels. When Ms. Daniels initially inquired of Petitioner about G.K.'s medication, he informed her that before he discontinued G.K.'s medication, he consulted with a nurse who in turn consulted with the prescribing doctor about the matter. Based on the response received from this consultation he discontinued G.K.'s psychotropic medication. Ms. Daniels based her conclusion of unauthorized discontinuance of medication on her conversations with Ray Mallette, a Department mental health counselor. In his letter to Petitioner, Mr. Mallette stated, in pertinent part: "To my knowledge, G.K. was not taking any psychotropic medication while under my care. Treatment was terminated in June of 1999, by mutual agreement, as no further care needed." Ms. Daniels testified that during her conversations with Mr. Mallette she recalled his stating that he did not authorize discontinuation of G.K.'s medication. Ms. Daniels could not state with any certainty if Mr. Mallette's use of the term "medication" included psychotropic medications or other medications. Petitioner provided Ms. Daniels the name of the Broward County physician with whom Petitioner had conferred through his nurse and who authorized taking G.K. off medication. There is no evidence that Ms. Daniels attempted to verify whether the medical persons provided by Petitioner had given instructions to take G.K. off psychotropic medications. I find Ms. Daniels' testimony on the issue of G.K.'s medication to be incomplete, confused and, not creditable. In making the foregoing finding, I have considered Mr. Mallette's letter reflecting that he is not a medical doctor or dentist; therefore, he cannot prescribe nor discontinue a prescribed medication to a patient. I. Use of profanity and general unwillingness to work cooperatively with the Department Rule 65C-13.010(1)(c)1., Florida Administrative Code, requires foster care parents to "work" cooperatively with the counselor as a member of a treatment team in seeking counseling, participating in consultation, and preparing and implementing the performance agreement or permanent placement plan for each child. In support of the above allegations, the DCF offered only the testimony of Ms. Daniels who stated: ". . . [A]lso during a conversation Mr. Marlowe used profanity. As far as [sic] concerned as just being uncooperative and maybe someone being uncooperative meaning there's something else behind it as far as, you know, not one to follow the rules that are set by the Department." I find the above testimony of Ms. Daniels to be vague and questionable. In making the foregoing finding, I have taken into consideration the fact that Ms. Daniels could not recall the date, time, place, words, or the circumstances of her conversation with Petitioner in which the alleged profanity was uttered. I have also taken into consideration the testimony of Ms. Stephanie Gardner, regarding Petitioner's uncooperativeness. Ms. Gardner, acknowledging that she did not know, did not remember nor did she recall; then went on to state: " . . . that at some unknown time and date, Petitioner stated, mentioned or indicated some information about a child or foster child that he had parented before. I don't know if it was Gary or one of the children that were actually at the Broward County at the Outreach Broward facility where he worked, but it was some information, and it was kind of alarming." I find the testimony of Ms. Daniels and the testimony of Ms. Gardner regarding the alleged profanity and regarding alleged uncooperativeness of Petitioner with the DCF questionable. Excluding the foregone evidence, other testimony regarding Petitioner and his conduct addressing matters that are related to those specific issues raised in DCF's denial letter of October 30, 2000, is neither material nor relevant to issues under consideration in this cause and disregarded.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is
