The Issue The issue in this proceeding is whether the Department of Children and Family Services should revoke the foster care license of Joey and Donna Tolbert.
Findings Of Fact At all times material to this proceeding, the home of Joey and Donna Tolbert was licensed by the Department as a foster home. They were initially licensed provisionally in December of 1998 for one year. They received a regular license in 1999 and retained a regular license until December 1, 2000, when they were issued license number 1200-008-2, a child specific license with a capacity of two children. The Relicensure Process Prior to issuing the child specific license, two Department employees of the Department, Mary Martin, a relicensing counselor for foster homes, and Ann Brock, a family services counselor, conducted a relicensing visit to the Tolbert's home on October 12, 2000. Donna Tolbert was present but Joey Tolbert was out of town. During the home visit, a Bilateral Service Agreement (Agreement) was signed by Mrs. Tolbert and Ms. Martin. The Agreement was signed and dated by Mr. Tolbert and again by Ms. Martin on October 17, 2000. The relicensing visit resulted in a Foster Home Relicensing Summary written by Mary Martin. The Summary recommended that the Tolberts be issued a regular license effective December 1, 2000 through December 1, 2001, for the capacity of two children. The Summary was signed by Mary Martin on October 26, 2000, and read in pertinent part as follows: The Tolbert family is an invaluable asset to this Department. They have made themselves available on a regular basis for the placement of children when needed. Both Mr. and Mrs. Tolbert are experienced in childcare and they have three (3) children with special needs whom they adopted prior. They should not be asked to take numerous children with severe behavioral problems or teenagers. It appears Mr. and Mrs. Tolbert have satisfied the Florida Administrative Code, Chapter 65C-15, requirements. It is respectfully recommended that the Tolbert family be issued a REGULAR license, effective December 1, 2000, through December 1, 2001, for the a capacity of two (2) children, ages birth (0) through twelve (12) years of either gender. Children with severe behavioral problems and teenagers are not to be placed in the Tolbert home. However, Ms. Martin later wrote an addendum to the licensing summary. According to Ms. Martin, she was asked by her supervisor, Jill Green, to write the addendum. The addendum is undated but references the October 12, 2000, home relicensing visit that resulted in her original recommendation. There is also an entry dated October 16, 2000, which is a date prior in time to her signature to the original relicensure summary, and an entry dated November 17, 2000. The addendum relates to matters concerning the Tolberts and their adopted son, Mi.1/ Richard Messerly has worked for the Department for approximately 22 years and works in protective investigations in Pensacola. From June 1999 through September 2001, he was the program operations administrator for the central licensing unit of the Department. In that position, he had authority over foster care licensure. He supervised Mary Martin and her supervisor, Jill Green. Mr. Messerly signed Ms. Martin's relicensure summary on December 4, 2000, and initialed both pages of her addendum. He also created a written history of the Tolbert foster home which concluded with a recommendation that the Tolberts' foster home license be revoked: SUMMARY/RECOMMENDATIONS The Tolbert family has a positive licensing history of capably caring for many of our foster children. However, a serious change has occurred in the family's willingness to work with our staff, including rebuffing our attempts to offer them assistance with the disruption of an adoptive placement. The Tolberts have attempted to convince others that they had been requesting assistance for M for a very long period of time and that this is flatly not borne out in licensing records. The matter was never brought to our attention until the visit in October 2000, at which time the matter was promptly referred to the adoptions unit, who responded promptly. Since that time the family has not cooperated with any attempts to assist them in that matter, and they seem to be insensitive to M's plight, and are completely focused on regaining their prior licensed status, as if nothing had happened. Contacts with Pat Franklin, Kathi Guy, Sally Townsend and others reflect the absence of any prompt attempts to get help dealing with M's behaviors, yet many requests were made regarding foster children in their care with similar problems during the same time frame. It appears the family was more focused on attending the needs of foster children to the exclusion of sensitivity to their own (adopted) child's cries for help. Even when the needs were identified, the family was unwilling to become involved in attempts to remedy the problems and appeared to have given up on the child. I am very uncomfortable with the inappropriate position this family has taken in regard to our family safety staff, as well as licensing staff, and do not see how we can hope to interact positively with them given their recent radical behaviors and threats. I feel that they have violated the Bilateral Service Agreement and have failed to "Treat all members of the foster care team with respect and courtesy." I recommend that we revoke the license using the violation of the agreement in conjunction with their other oppositional behaviors, omissions, and misrepresentations reflected in family safety foster care and adoptions records. On December 1, 2000, Mr. Messerly signed a letter on behalf of Charles Bates addressed to the Tolberts which read: Dear Mr. And Mrs. Tolbert: Your home has been relicensed for the continuance placement of D and M.R. only. No other placements or overcapacity requests will be authorized at this time. A regular license is issued for twelve months pending the outcome of matters presently before the Circuit Court. If you have questions or wish to discuss this further, please contact Jill Greene, Foster Care Licensing Supervisor at (850)- 595-8451. On June 4, 2001, Mrs. Tolbert met with Charles Bates, District Administrator for District 1 of the Department. This meeting was at Mrs. Tolbert's request regarding her foster care licensure status. During that meeting, Mrs. Tolbert complained to Mr. Bates about certain adoption case workers. On August 24, 2001, Charles Bates sent a letter to the Tolberts notifying them of the revocation of their license. The letter reads in pertinent part as follows: RE: Revocation of Foster Home License. Dear Mr. and Mrs. Tolbert: This letter is to inform you that the Department of Children and Families has made a decision to revoke your foster home license. The basis for this decision is your failure to comply with Florida Administrative Code 65C-13 and the Bilateral Service Agreement (form CF-FSP 5226) which you executed. Florida Administrative Code 65C-13.009(1)(e)5. states: Work in a partnership. Develop partnerships with children and youth, birth families, the department, and the community to develop and carry out plans for permanency. Florida Administrative Code 65C-13.010(1)(c)1. states: Substitute care parents are expected to work cooperatively with the counselor as a member of a treatment team in seeking counseling, participating in consultation, and preparing and implementing the performance agreement or permanent placement plan for each child. Florida Administrative Code 65C-13.010(4)(i) states: The substitute care parents must be able to accept supervision by department staff and participate in and support case plans for children in their homes. Specifically, substitute care parents must be included in the development of performance agreements or permanent placement plans, and in the carrying out of these plans. As part of your foster care licensing, you executed a bilateral Service Agreement. The Bilateral Service Agreement that you signed enumerated the Administrative Code responsibilities and detailed responsibilities of foster parents. The paragraphs violated are listed below in pertinent part: h. To notify the department immediately of a potential change in a family composition, significant health changes or any other condition that may affect the child's well- being. Obtain authorization from the department prior to spending money for which repayment is expected. To accept the direction and supervision given by department to assist in caring for the foster child. To work cooperatively with the department to attend scheduled meetings to discuss the child and his family and to meet the needs of the child. To treat all members of the foster care team (i.e., the department, child's family, and GALS) with respect and courtesy. As stated in the service agreement, non-compliance with any of the above provisions can result in termination of the service agreement and may also result in the department revoking the home's license. You have failed to comply with the above code citations and service agreement provisions in that you have accused departmental staff of failing to disclose complete information to you and of misrepresenting statements that you have made. You have not worked cooperatively with the department employees who offered to assist you and your child; and have not worked in partnership with the department. Specifically, you have previously stated you were obtaining therapy for a child, didn't agree with the therapist's recommendation, and were obtaining a psychiatric evaluation and assessment for the child, when in fact you did not do any of those things. A review of the department records reflected concerns you mentioned to the department in October 2000, regarding your child's disruptive behavior. However you would accept no assistance even though the department offered extensive assistance. You surrendered your adopted child later that same month. Further, you have stated to a department employee that Ms. Peggy Custred and Ms. Sally Townsend should not work for the department, have accused them of wrongdoing, and have stated that you "will have their jobs." You have failed to treat members of the department with respect and courtesy. Given the above problems, I find that it would not be in the children's best interests to continue licensing your foster home and am permanently revoking your license. The Tolberts as foster parents The overwhelming evidence shows that the Tolberts were excellent foster parents. Jane Crittenden, licensing supervisor for the Department, who was a foster care supervisor at the times material to this proceeding, acknowledged that the Tolberts received the award of Foster Parents of the Year in May of 2000 for the year 1999. She also acknowledged that as far as she knew, the Tolberts excelled as far as their work as foster parents; the foster children in their care did quite well; the Tolberts always seemed to provide a loving, nurturing home to foster children placed there; the Tolberts were called on by the Department to take extra children beyond their cap, which they agreed to do; and the Tolberts cooperated with her and her case workers during the period of time she worked with them. Arlene Johnson, a former guardian ad litem for a foster child in the Tolberts' home from December 1998 until July 1999, visited the Tolbert home about twice a week during that time. She has been in a lot of foster homes and described the Tolberts' home as "the best one I've been in." Gerald Reese, a family service counselor for the Department, worked with the Tolberts over a period of 6 to 7 months in 1999 and 2000 while he was a case worker. During that time, Mr. Reese did not have problems dealing with the Tolberts, did not observe any instance in which the children were not adequately provided for, and observed that the foster children in the Tolberts' home were happy. Richard Messerly acknowledged that the Tolberts were exemplary foster parents as far as the care they provided to the foster children in their care. Mr. Messerly also acknowledged that the only staff the Tolberts had problems with were particular members of the adoption staff, not the Department's foster care staff. The wallpaper expense Carlita Bennett was employed by the Department from 1986 until March of 2002. When she was working for the Department in the capacity of a foster parent recruiter in May of 2001, she sent an e-mail message to Mary Martin regarding the Tolberts which contained the following: 11/04/99 A restitution claim form was submitted by Mrs. T for damage to wallpaper caused by 2 yr. Old. The bill total was $1,151.04 to replace wallpaper in living room, dining room, kitchen and hall. PS Counselors were not made aware of the damage until repairs were made. According to Ms. Bennett, it is regular procedure for someone from the department to go out to a foster home and look at damage before repairs are made. The Bilateral Services Agreement requires the foster parents to obtain authorization from the Department prior to spending money for which repayment is expected. According to Ms. Bennett, this policy was not followed in this instance. Ms. Bennett did not explain why she sent the e-mail message on May 30, 2001, to Mary Martin referencing an incident that took place two and one-half years earlier. According to Mrs. Tolbert, a former two-year-old foster child in her care ripped the wallpaper in the dining room and the living room. Her dining room, kitchen, and hallway are all one color. According to Mrs. Tolbert, she gave an estimate of the repair work to Shiela Campbell, an employee of the Department. Richard Messerly acknowledged that this matter of the expense for wallpaper would not in and of itself have resulted in the Department revoking the Tolberts' foster care license. At most, the Department would have only talked to the Tolberts had there not been other issues about which the Department was concerned. Notification to Department of change of condition The August 24, 2001, revocation letter from Mr. Bates alleged that the Tolberts failed to notify the Department of a potential change in conditions in the home that might affect the well-being of foster care children in the home. This allegation relates to behavior problems of the Tolberts' adopted son, Mi. The Tolberts adopted Mi. in September of 1998. They signed surrenders of Mi. in November of 2000. The Tolberts' surrender of Mi. was central to the Department's decision to revoke the Tolbert's foster care license.2/ Mi. began having serious behavior problems in 1999. Mrs. Tolbert recalls telling Gerald Reese, the foster care worker assigned to the Tolberts at that time, about problems with Mi. Mr. Reese acknowledged that Mrs. Tolbert mentioned to him problems she was having with Mi. to which he responded that she should bring it to the attention of the adoption case worker. The Tolberts' adoption case worker was Sally Townsend. Mrs. Townsend recalls that Mrs. Tolbert stopped by her office three times when Mrs. Tolbert was in the Ft. Walton Beach Service Center to see other department employees. Mrs. Townsend acknowledged that Mrs. Tolbert told her of behavior problems with Mi. the first time she stopped by Mrs. Townsend's office. The second time Mrs. Townsend recalls that Mrs. Tolbert told her Mi.'s behavior problems were better. The third time, however, Mrs. Tolbert informed Mrs. Townsend that Mi.'s behavior was much worse. Mrs. Tolbert remembers these encounters with Mrs. Townsend differently. According to Mrs. Tolbert, she met with Mrs. Townsend approximately 10 times during which she spoke to her about Mi.'s behavior problems. According to Mrs. Townsend's case notes, Mrs. Tolbert told her on October 24, 2000, that Mi. was urinating all over the house, had gotten a butcher knife out of a drawer in the kitchen, and shoved a puppy's head under a piece of furniture. Evidence was presented at hearing regarding whether or when the Tolberts received notice that Mi. had significant problems before he was adopted by the Tolberts. However, what is important for purposes of this proceeding is when was the Department notified of Mi.'s problems. The Department knew of Mi.'s previous problems prior in time to the Tolberts adopting Mi. and were told as early as 1999 that the Tolberts were experiencing behavior problems with Mi. Kathi Guy is an adoption program specialist for the department. She met with the Tolberts immediately after Mrs. Tolbert met with Mr. Bates on June 4, 2001. On June 21, 2001, she wrote a memorandum to Charles Bates concerning the issues relating to the Tolberts. Regarding the issue of the Tolberts' responsibility of notifying the Department of Mi.'s behavior in relation to the foster children in the home, Ms. Guy wrote, "It is unclear what responsibility the Tolberts had to inform Central Licensing of M's behaviors that may have had injurious effects on foster children in their care." Working in partnership The June 24, 2001, revocation letter alleges that the Tolberts failed to work in partnership with the Department and did not obtain certain services for Mi. although they were offered. It is important to remember that the provisions to which Mr. Bates' revocation letter references are part of the Bilateral Services Agreement that pertained to the Tolberts' role as foster parents. However, Mi. was their adopted son, he was not a foster child at that time. Further, there is ample evidence in the record that the Tolberts sought and received services for Mi. over time, although they were in disagreement with the Department regarding certain services during the time immediately preceding the surrender of Mi. Marianne Vance is a first grade teacher. Mi. was in her class for two years. According to Ms. Vance, Mi. received testing in school for learning disabilities and for "everything possible." When Mi.'s behavior problems became worse during his second year in Ms. Vance's class, Mrs. Tolbert sought assistance from the school. The school counselor worked with Mi. and Mrs. Tolbert. According to Ms. Vance, the Tolberts did everything possible in seeking help or assistance.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Children and Family Services enter a final order rescinding its revocation of the Tolberts' foster care license. DONE AND ENTERED this 31st day of July, 2002, in Tallahassee, Leon County, Florida. BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of July, 2002.
The Issue Whether the Department of Children and Family Services (DCF) may revoke Respondent's family foster care license due to her continued contact with her husband after he was convicted of sexual molestation of their teen-aged daughter.
Findings Of Fact Lila and Charles Dean were licensed foster parents from 1986 through 1991, when they adopted their daughter who was then six years old. The couple subsequently had two natural daughters. In January 2001, the 16-year-old adopted daughter reported that Charles Dean had been sexually abusing her for approximately two years. Lila Dean immediately had Charles Dean move out of the family home. She has been consistently supportive of their daughter and went with her through the whole abuse and rehabilitation system. Charles Dean was convicted in 2001 of sexually abusing his adopted daughter and is a registered sex offender. Lila Dean has been separated from Charles Dean since January 2001, but she has not filed for divorce. On March 13, 2002, Lila Dean was relicensed by DCF as a family foster parent. George Payne, DCF Family Counselor III, testified that during the family foster home re-licensing process prior to March 13, 2002, Lila Dean admitted to him that she was seeing her husband away from the home once every two or three months to discuss child support, insurance, etc., and that he had no contact with the children. She also admitted that with the permission of his probation officer, Charles Dean had come to the home, while the children were at school, to make needed repairs. At Mr. Payne's urging, she promised to get someone else to make any future repairs. The licensing process took eleven months because of DCF's concerns about Mrs. Dean's contacts with her husband, but DCF licensed her individually on March 13, 2002, because of her previous excellent record as a foster parent in another district supervised by Mr. Payne from 1985 to 1989. On May 13, 2002, upon receiving an abuse report that Mrs. Dean had been having regular contacts with her husband; that Mrs. Dean had made comments in the community that Mr. Dean's sexual abuse was not that serious because the girl was his adopted, not his biological child; and that Mrs. Dean had spoken on Mr. Dean's behalf requesting that he be spared a prison sentence, DCF removed the two non-verbal, toddler, foster children who were then in Mrs. Dean's foster care and instituted a further abuse investigation. After the abuse report had been received regarding Mrs. Dean's 2002 contacts with her husband, she told Mr. Payne that she was not looking for a relationship with any other men because they might want a sexual relationship with her, but that sex was not an issue with her husband, so she felt comfortable with him. The abuse report, which related the couple's more frequent contacts, suggests the family is "working toward reconciliation," something Mrs. Dean has denied to Mr. Payne. The abuse report verifies the old abuse information as to the adopted daughter. It does not verify the tipster's allegation that Mrs. Dean does not view Mr. Dean's molestation of their adopted daughter as less serious than it would have been with a natural daughter. There is no direct testimony or otherwise reliable evidence on this issue, on the issue of whether or not she has spoken publicly on his behalf, or on the issue of whether or not a reconciliation is anticipated. There is no evidence that Charles Dean has been in the home since Lila Dean was relicensed. DCF sent a license revocation letter to Mrs. Dean after becoming aware of the increasing frequency of her contacts with her husband. The basis for revocation was given as: . . . pursuant to Section 409.175(8)(b)3. [now Section 409.175(9)(b)3] Florida Statutes, because your continued and repeated contacts with Charles Dean are inconsistent and incompatible with your role as a foster parent. It is not in the best interests of vulnerable foster children to be placed with a foster parent who considers it appropriate to have a relationship with a registered sex offender. [Clarification of statutory citation agreed-to and supplied]. Mr. Payne was unaware of any DCF rules Mrs. Dean broke by having contact with her husband. Mr. Payne has no indication that any children, natural or foster, were at greater risk post-licensing than pre- licensing due to Mr. And Mrs. Dean's increased contact. DCF cannot constantly monitor a foster parent to ensure that the children in her care are not placed at risk by her personal associations.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services enter a final order reinstating the family foster home license of Lila Dean and specifically limiting any appearance on the foster home premises by Charles Dean. DONE AND ENTERED this 17th day of January, 2003, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of January, 2003. COPIES FURNISHED: Lucy Goddard, Esquire Department of Children and Family Services Post Office Box 390, Mail Stop 3 Gainesville, Florida 32602 Robert Vest, Esquire 613 St. Johns Avenue Suite 212 Post Office Box 2525 Palatka, Florida 32177 Paul F. Flounlacker, Jr., Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
The Issue The issue in this case is whether Respondent should deny Petitioners' application for a license to provide foster home care for dependent children pursuant to Section 409.175, Florida Statutes (1999). (All statutory references are to Florida Statutes (1999) unless otherwise stated.)
Findings Of Fact Respondent is the state agency responsible for licensing and regulating foster care in the state. Petitioners were foster care parents until October 5, 2000, when Petitioners voluntarily surrendered their foster care license for medical reasons. Prior to October 5, 2000, Mrs. Williams suffered from high blood pressure and dizziness. She was physically unable to care for foster children and asked that Respondent remove all foster children from her home. Before her medical problems began, Mrs. Williams complained to Respondent that she could not provide foster care for children with behavior problems. Mrs. Williams asked Respondent to remove certain children from her home because they presented behavioral problems with which she could not cope. In March of 2001, Petitioners applied for a new license to provide foster care. Petitioners did not provide any medical evidence, during the hearing or the application process, that Mrs. Williams has recovered from her medical problems. Her medical problems have a long medical history and come and go each year. Mrs. Williams is 62 years old. On the family profile sheet filed with Respondent, Mrs. Williams lists her occupation as "disabled."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order denying Petitioners' application for a license to provide foster care to dependent children. DONE AND ENTERED this 31st day of October, 2001, in Tallahassee, Leon County, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 2001. COPIES FURNISHED: Virginia A. Daire, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Wilbert and Estella Williams 412 Pine Avenue Sanford, Florida 32771 Craig A. McCarthy, Esquire Department of Children and Family Services, District 7 400 West Robinson Street Orlando, Florida 32801
The Issue May the Department of Children and Family Services (DCF) revoke Respondent's foster home license for violating Section 409.175 (8)(b) 1., Florida Statutes, in that Respondent intentionally or negligently committed acts that materially affected the health and safety of children, to-wit: inadequate supervision of a minor child entrusted to her care?
Findings Of Fact R.G. is the biological mother of the infant female, A.G., born out of wedlock. R.G. gave birth to a male child before A.G. That son was taken away from R.G. by DCF. Both A.G. and R.G., while R.G. was yet a minor under the age of 18 years, were adjudicated dependent children, subject to placement by DCF, pending DNA testing of A.G. and two putative fathers. R.G. had been placed with a licensed foster home other than Respondent's licensed foster home. That home requested R.G.'s removal because R.G. would not follow its rules. R.G. with A.G., was then placed in the licensed foster care home of Respondent. Although the placement of A.G. with Respondent raised Respondent's home population to one more live foster child than Respondent's licensed capacity, a situation to which Respondent objected, DCF personnel informed Respondent that the infant A.G. would be counted as part of R.G.'s placement. Therefore, despite A.G. and R.G. being two separate persons, DCF would not consider Respondent to have exceeded her license's capacity. It was not explained on the record how DCF intended to pay board to Respondent for care of A.G., if A.G. were not considered a whole person, but it is clear that DCF personnel resented Respondent's asking how she would be compensated for A.G.'s care. At all times material, R.G. and A.G. were subject to a Circuit Court Order which permitted only "unsupervised day visitation" by R.G. with A.G. (Emphasis in the original). By implication of the Circuit Court Order, and by her own understanding from instructions by DCF personnel, Respondent knew that R.G., the minor mother, was not permitted to have unsupervised night visitation with the dependent infant, A.G. DCF's and Respondent's understanding of the Circuit Court Order was that Respondent, R.G., and A.G. were required to be in Respondent's home after dark, but Respondent was not required to "eyeball" R.G. and A.G. all night, every night, while they were present in Respondent's foster home. Gracie Rager, DCF foster care worker, authorized Respondent to allow R.G. to take A.G. out of Respondent's foster home during the day for unsupervised visitation. Ms. Rager also authorized Respondent to allow R.G. to take A.G. to R.G.'s older natural sister's home to spend some nights, including weekends. R.G.'s older natural sister was married and licensed for foster care. Accordingly, DCF personnel, including Ms. Rager, presumed that the older sister was sufficiently responsible and qualified to provide supervision of R.G. and A.G. at night. DCF reasonably concluded that R.G.'s presence with A.G. in her sister's home at night would constitute supervised night visitation and comply with the Court's Order. Ms. Rager never authorized Respondent to allow R.G. to take A.G. out at night by herself, but Ms. Rager reasonably saw no impediment, including the Circuit Court Order, to R.G. taking A.G. with her anywhere she wanted to take the baby during the day. R.G. openly resented being placed with Respondent because Respondent is Black. R.G. wanted to return, with A.G., to a white foster home placement. As a result, R.G. was never cooperative with Respondent. When R.G. turned 18 years of age, she became openly defiant of Respondent. R.G. insisted that she alone, would do everything for A.G., who was still under two years old. R.G. refused all assistance from Respondent concerning A.G. Respondent asked DCF to remove R.G. and A.G. or at least A.G., from her foster home. DCF had no other placement for them and asked Respondent to keep them until another placement was found. R.G. had a part-time day job. To get there, she would "catch a ride" with others. She would not accept a ride from Respondent. Sometimes, R.G. would take A.G. with her to work and go directly from work, with A.G., to her older, licensed sister's home. On these occasions, R.G. and A.G. might be gone for a night or a weekend. When R.G. did not return to Respondent's foster home, Respondent sometimes called R.G.'s older, licensed sister's home to be sure that R.G. and A.G. had arrived there safely. Sometimes, Respondent asked this sister to call her when R.G. and A.G. arrived. However, Respondent did not always contact R.G.'s older, licensed sister or otherwise check-up on R.G.'s and A.G.'s whereabouts overnight or over a weekend. When R.G. and A.G. returned after a night or weekend away, Respondent did not always check up on where they had been. Respondent was under the impression that a different, adult sister of R.G.'s was also a suitable adult supervisor for after dark, even though that sister was not licensed for foster care. Indeed, there is nothing in the Circuit Court Order requiring that supervised night-time visitation of R.G. with A.G. could not be undertaken by any other adult, regardless of whether that person were licensed for foster care. Respondent never checked to see if R.G. and A.G. were with R.G.'s unlicensed sister. At no time did Respondent report to law enforcement or DCF that R.G. had gone off and failed to return or that R.G. was taking A.G. away on weekends. At some point, R.G.'s authorized and licensed older sister called Ms. Rager and said R.G. had taken A.G. out all night with R.G.'s boyfriend and had not returned. It is unclear from Ms. Rager's testimony whether R.G.'s and A.G.'s departure point for their night or weekend of unsupervised visitation was Respondent's home or R.G.'s licensed sister's home. On February 9, 2001, Ms. Page, a DCF protective investigator, responded to an abuse hotline call and met with Respondent in the lobby of a DCF facility. During her interview of Respondent, Ms. Page knew nothing of where either R.G. or A.G. had been picked up, or how long they had been unsupervised at night, but Ms. Page "understood" from Ms. Rager that R.G. and A.G. had been removed from Respondent's home and that Respondent had come to the DCF facility voluntarily. Ms. Page was particularly concerned because of a comment Respondent made in the course of this interview, to the effect that Respondent guessed she had "handled it all wrong" because she had only asked to have the baby, A.G., removed from her care instead of reporting R.G.'s rebelliousness. DCF Investigator Page testified that she "verified" in an abuse report that Respondent was guilty of neglect by failure to notify authorities of R.G.'s unsupervised night visitation with A.G. There is insufficient evidence to determine of Respondent ever had a chance to challenge the abuse report or if the report was ever "confirmed." There is no evidence R.G. or A.G. suffered harm as a result of this incident.
Recommendation 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 dismissing charges against Respondent and restoring her foster care license. DONE AND ENTERED this 7th day of October, 2001, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of October, 2001. COPIES FURNISHED: David West, Esquire Department of Children and Family Services Post Office Box 390, Mail Stop 3 Gainesville, Florida 32602 Dr. James Brant, Qualified Representative 1140 Durkee Drive, North Jacksonville, Florida 32209 Cheryl Smith Post Office Box 1053 Lake City, Florida 32056 Virginia A. Daire, 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 Respondent was initially licensed to operate a foster home in 1992. In April 1995, her license was renewed. As part of the licensing process, the Respondent signed documents entitled "Agreement to Provide Substitute Care for Dependent Children" and "Discipline Policy", thereby agreeing to comply with the terms of each document. Both of these documents clearly provide that corporal punishment of a foster child is prohibited. On October 30, 1995, Petitioner notified Respondent by letter of its intent to revoke her foster home license and stated, in pertinent part, as follows: This letter is to advise you that your Foster Home license is being revoked, effective November 1, 1995. This decision has been made based on our past concerns about inappropriate child-parent visits, the recent complaint about use of physical discipline, and the altercation on 09/18/95 between you and Foster Parent Veronica King. 1/ At the times pertinent to this proceeding, Respondent provided foster care for three teenage girls under the age of 18 years. On September 29, 1995, Petitioner's abuse registry received a report that Respondent had been physically and verbally abusive to the children in her foster care. The report included allegations that Respondent had hit and knocked down one of the girls in her foster care and that she attempted to return the girl to her natural mother, who had abused her daughter in the past. In response to that report, Petitioner removed the three girls from Respondent's foster care and began an investigation of the allegations. As part of that investigation, Respondent and each of the three girls were interviewed by employees of the Petitioner with appropriate training. The three girls who had been in Respondent's foster care made statements to these employees pertaining to their treatment by Respondent. These statements are hearsay that cannot be used as the sole basis for a finding of fact in this proceeding. 2/ In her interview, Respondent denied that she physically abused her foster children, but she admitted that she intentionally pushed one of the girls to the ground. Respondent violated Petitioner's discipline policy by pushing this girl to the ground. Respondent denied that she threatened to return one of the girls to the girl's abusive mother. Instead, she testified that she arranged for this girl to visit with the abusive mother. There was no competent evidence to dispute Respondent's testimony. Respondent conceded that she talked firmly to the three girls, but she denied that she verbally abused them. There was no competent evidence to dispute Respondent's testimony.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order that revokes Respondent's foster home license. DONE AND ENTERED this 2nd day of October, 1996, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of October, 1996.
The Issue The issue to be resolved in this proceeding concerns whether the Petitioners have been guilty of violation of pertinent statutes and rules governing qualification and capability to hold a foster home license and to operate a foster home, in this case a "therapeutic foster home" and, if so, whether their application for renewal of licensure should be denied.
Findings Of Fact The above-named Petitioners were licensed as operators of a therapeutic foster home and as therapeutic foster parents. Due to an alleged abuse report, they became involved in a revocation proceeding with the Department concerning their previously-held license. Upon advice by personnel with Camelot, Inc. (Camelot), a private provider which provides services to the Department for therapeutic foster care, by contract, they voluntarily relinquished their previous license on February 6, 2006, in the belief that they would still be entitled to a formal proceeding to contest that the alleged abuse occurred, and their licensure entitlement. The Department declined to afford them a hearing on the issue, and they appealed to the District Court of Appeal for the First District. The Department was upheld. They then applied for a renewal of their therapeutic foster care license on August 10, 2006, for Lake County, Florida. An evaluation of the application was launched by the Department and ultimately the Department issued a denial of the license application. A timely request for an administrative proceeding to contest denial of that license was filed by the Giegers. The license denial was based initially upon the Department's determination that the Giegers had allegedly inappropriately punished children in their home and that they had some sort of business interest or income interest in being licensed foster parents, purportedly a violation of foster parenting rules. Sometime thereafter a supplemental basis for denial was served upon them by the Department wherein the Department alleged that the Petitioners had also violated Section 409.175(4) and (12)(a), Florida Statutes (2006), because they had a child placed in their home through a guardianship agreement that had not been approved by a court and were therefore acting as an unlicensed foster home. A response to that supplemental denial notice was made by the Petitioners. Therapeutic foster parents are trained to provide for children with difficult behavioral problems. The Giegers received this training and remained in compliance with the training updates and continued education necessary in order to continue their licensure in good standing. In addition to this, Mrs. Geiger is a trained mental health specialist, with a master's degree, who works for Lifestreams, a mental health provider, providing services to disturbed children. The Giegers were previously affiliated, as therapeutic foster parents, with the private provider, Camelot, which provides services to the Department for therapeutic foster care. They were licensed as therapeutic foster parents at that time, and accepted a number of severely disturbed children into their home over the years while they were affiliated with Camelot. When a foster parent has a child placed in their home, Camelot has a therapeutic system whereby a therapist is assigned to that child and is available for consultation at any time of day. If the primary therapist is unavailable, the supervisor of that therapist is available for consultation. Camelot's therapeutic personnel and various mental health professionals have been frequently in the Giegers' home to consult, monitor, and assist with the care and therapy of foster children placed there. A number of those therapeutic personnel testified. They established that the Giegers are excellent parents who have provided exemplary care to the foster children placed in their home. These people have training in mental health and related fields. Some hold master's degrees and have been trained to recognize abuse or evidence of it. Some are psychologists, specifically assigned as the mental health professional working with particular children placed in the Giegers' home. In 2005, a child, J.D., was placed in the Giegers' home by the Department. In addition to J.D., there were other children in the home, including Tyler, a non-foster care child placed privately by Camelot with the Giegers, as well as the Giegers' own adopted son. All of the children in the home had been abused prior to their placement with the Giegers. J.D.'s previous situation before coming to the Giegers' home was particularly egregious. He had been starved, locked in a closet, had his fingernails removed by his parents and otherwise was the victim of severe parental abuse before coming into foster care. His was a case of high public notoriety and appears to have been thus treated with a heightened level of attention by the Department, as compared to the case of other children. When J.D. arrived at the Giegers' home after his initial rescue from his earlier situation, he purportedly weighed 58 pounds and was only 4 feet 8 inches tall, at the age of 17 years. During the time he resided with the Giegers, he grew several inches and gained almost 80 pounds due to the care given him by the Giegers. He was placed on special vitamins and formula, in addition to his regular meals, in order to restore him to appropriate physical condition. Because of his physical condition, extra efforts were made by the Petitioners to assure his safety. They even placed him in a private school because they felt he would be at risk attending a large public high school, which he would otherwise have been required to attend. J.D. did well at the Giegers' home initially and it was planned for him to remain in their home after he reached 18 years of age, if he continued to adjust favorably to being a member of their family. He began "acting out" more severely, however, with problematic behaviors. Ultimately it was determined by both the Giegers and Camelot that he should not remain in their home after he turned 18 because of the adverse impact he was having on other children residing in the home. Before the determination was made that J.D. would not remain in the Giegers' home after he reached 18 years of age, the Department had praised the Petitioners' care of J.D. After that decision was made, an attorney for the Department suggested to Mrs. Gieger that she be hired by the Department to provide special services to J.D. Apparently there was a funding problem with regard to continuing J.D. in private school, and this was suggested as a means of funding the private school. Mrs. Gieger, however, did not feel this funding was appropriate because she was already being paid by Camelot for these services, and expressed this to the attorney, she therefore declined that offer. In December 2005 the Department decided to have J.D. re-evaluated by his original evaluator, a psychologist, Dr. Dykel. During his meeting with Dr. Dykel, J.D. apparently told Dr. Dykel that the Giegers had cursed in his presence and in the presence of other children, used racially derogatory language concerning Black children in the foster childrens' presence and that Mrs. Gieger had sat on him as a means of restraint or punishment. He also stated that he was being deprived of food. This meeting occurred on a Friday afternoon. After the meeting J.D. returned to the Giegers' home and made statements about what he had said to Dr. Dykel. Initially the Petitioners thought nothing about the statements, but on the following Tuesday an abuse report was called in indicating that the Giegers had inappropriately punished J.D. in the manner he had related to Dr. Dykel. The child Tyler, who had been placed in the Giegers' home was a child who suffered from severe mental health issues. He had been placed privately with Camelot by his father. He had set his father's and step-mother's bed on fire the previous Christmas because he did not receive a toy, a "PS2," that he asked to be given him for Christmas. There was testimony that he was told by J.D. that if he would make a statement against the Giegers to the Department that he would get the PS2 toy that he wanted. He was taken by Erica Summerfield, an investigator assigned by the Department to the case concerning the abuse report, to the "Child Advocacy Center," for a statement. He apparently made such a statement, of the above import, but then recanted it. Nonetheless, based only on the statement made by J.D. and by Tyler, Erica Summerfield made a determination that the abuse report should be determined to be "founded." As a result of her report (and apparently a past history of abuse reports concerning the Giegers' foster care facility, none of which had been proven to be "founded"), Camelot apparently suggested to the Giegers that they voluntarily relinquish their license, purportedly telling them that they would still have the ability to challenge the abuse report through a Chapter 120 hearing. They sought to obtain a Chapter 120 hearing and the Department denied their request. An appeal ensued and the denial by the Department was affirmed by the District Court of Appeal. During the pendency of that appeal, the Giegers filed an application to renew their license, which was denied. This proceeding ensued after that denial, when the Giegers requested a formal proceeding. The Department offered the testimony of Erica Summerfield who was a child protective investigator assigned to the investigation. She was the supervisor of the person who interviewed J.D. and Tyler, apparently the only sources of investigative information leading to her finding that abuse had occurred. Ms. Summerfield testified that her concerns about the Giegers led her to make a report finding that abuse had occurred because alarms had been placed on the bedroom doors of childrens' bedrooms in the Giegers home; that the Giegers had used excessive restraint against J.D. (allegedly held him on the floor and lay on him or sat on him); and that J.D. had been mentally injured by the Giegers and not provided with sufficient food. She also opined that Mrs. Gieger had made inappropriate statements to J.D. None of these purported findings are supported by credible evidence. Initially it is found that J.D.'s and Tyler statements to the interviewer, who then apparently related them to Ms. Summerfield, constitute, at best, "second-hand" hearsay. Neither the interviewer nor J.D., nor Tyler testified at the hearing, and Tyler later recanted his statements made to the interviewer. The Respondent's exhibits two, three, and four, the interview reports, were offered into evidence and were only admitted regarding a basis for the Department's course of conduct in the matter, but not for the truth of any facts depicted on the face of those exhibits. Concerning the alleged complaint, related to the interviewer, regarding lack of food, the credible persuasive evidence shows that J.D. actually grew several inches after being placed with the Giegers, even though doctors had opined that he would not grow much, if at all, because of the starvation that had occurred early in his life. He also gained substantial weight while being cared for by the Giegers, so that he essentially looked like a normal child by the time he left their care. He had been emaciated when he came to the Giegers' care and had been described as looking like a "concentration camp victim." He was described as being far smaller than a child of his age when he came to the Giegers' care, but seven months later appeared to be essentially a normal child in physical appearance. The evidence, in fact, clearly supports the determination that the Giegers did provide J.D. with appropriate nutrition during their care of him. The basis for the alleged abuse regarding his not being properly fed is simply not credible. The Giegers had also been accused by J.D. or Tyler, or both, with using inappropriate language, racial slurs and cursing in J.D.'s presence, purportedly causing him mental harm. However, mental health experts present in the Giegers' home on a weekly and almost daily basis had never heard any inappropriate language, including any inappropriate racial language or inappropriate cursing in the childrens' presence during their visits to the Giegers' home. Many of these visits were unannounced. Two of the counselors or mental health professionals often present in the home were African-American. They found no evidence of racial tension or racially derogatory language being used by the Giegers or in the Giegers' home. It was their belief that the Giegers did not exhibit any behavior which suggested racism. Further, there were no Black children placed in the Giegers' home during the time that J.D. was there. There is simply no credible evidence to support any finding that inappropriate language was used by Mr. or Mrs. Gieger in J.D.'s or other childrens' presence, of a racially derogatory nature or otherwise. Part of the basis for the abuse finding (and the reason for license denial) was excess restraint or "sitting on" J.D. as punishment. This position was based on the statements of the two children, J.D. and Tyler. One of them, Tyler, tearfully recanted his story shortly after he made the statement. Erica Summerfield testifying for the Department, admitted in her testimony that she was aware of his recantation. She also admitted that Tyler's parents had asked her more than once to allow him to be placed back in the Giegers' home. They also had disclosed to her that he had a habit of making inappropriate statements and lying. There is evidence that J.D. had told him that he would receive a toy he wanted very much if he would make a statement to the Department that J.D. had been abused by the Giegers. Most importantly, J.D. had identified the point in time when Ms. Gieger was supposed to have sat on him as during an occasion when he broke a window at the house. Other mental health providers who were in the home around that time reported never seeing any bruise marks or other evidence of injury to J.D. or at any other time. They also reported that Mrs. Gieger was especially careful of his safety because of the seriously debilitated condition of his body. Most importantly, however, during the time that the window was broken by J.D. and he was severely acting out, Mrs. Gieger was on the phone with a professional from Camelot who was helping her to calm or "de-escalate" J.D. and who remained on the phone with Mrs. Gieger during the entire incident. That expert heard nothing which indicated that Mrs. Gieger had sat on the child or in anyway inappropriately restrained him. Mrs. Gieger denied using physical restraints on the foster children at the hearing. The Department maintains, however, that in two prior reports discussed in Camelot's letter, report 1999-127436 and 2002-007021, the Giegers had admitted restraining foster children. In the 1999 incident the child purportedly sustained rug burns on the face while being restrained on the floor by Mr. Gieger. These reports are at best second-hand hearsay. Moreover, they are not reasons of which the Petitioners were provided notice, as part of the basis for the denial of their licensure application which triggered this proceeding. Moreover, both of those incidents were immediately reported by the Giegers themselves to the Department and, ironically, the Department did not see fit to make any determination at the time, or since, that those incidents amounted to abuse. No finding was made that those alleged incidents were "founded" abuse episodes. Moreover, the Department relies upon an incident where Mrs. Gieger purportedly stated that she used force against J.D. when he tried to grab her neck. She purportedly told Ms. Summerfield in an interview that she gave J.D. a "therapeutic bear hug" by grabbing his arm and turning him around. He fell to the floor as a result. Parenthetically, not even the Department claims that she forced him to the floor. Mrs. Gieger's testimony at hearing concerning this event was to the effect that she grabbed J.D.'s wrist in order to prevent him from striking her or grabbing her neck and that he just collapsed to the floor. The Department then maintains that foster parents are not permitted to use such "force" on foster children, such as grabbing J.D.'s wrist, because it equates this to the use of corporal punishment and that grabbing a child's arm or wrist could "traumatize" an already vulnerable foster child. Mrs. Gieger's testimony, however, indicates that the use of "therapeutic bear hug," even if it occurred, is part of an approved method of training which she had, which is designed to safely manage children who are acting out in a potentially dangerous way, until they can calm down. She testified that Camelot, the Department's contracting agent, had approved this training for her. Moreover, when a foster parent is in danger of attack by a 17-year-old, even a somewhat debilitated child, who threatened striking or grabbing the foster parent by neck or throat, to grab his arm or wrist to prevent such conduct is reasonable and does not constitute unreasonable restraint. Assuming this event occurred, to characterize the grabbing of a child's wrist, to prevent injury or potential injury to a foster parent or another, as excessive force or "corporal punishment" is nonsensical. There is no credible, persuasive evidence that either Mr. or Mrs. Gieger engaged in any excessive force or restraint amounting to abuse. A concern was raised by Dr. Dykle, the psychologist, who was fearful of the fact that alarms had been placed on childrens' rooms in the foster home. Ms. Summerfield based her finding that abuse had occurred, in part, on the report that the alarms had been placed on the doors of some of the childrens' rooms. Ms. Summerfield, however, admitted in her testimony that alarms are often and routinely placed on childrens' rooms in therapeutic foster care homes. The mental health experts who testified clearly established that in every therapeutic foster home such alarms must be placed on bedroom doors because of a safety concern for other children. Children who are placed in this type of home are often serious safety risks for themselves or for other children. They have often been found themselves to be perpetrators of inappropriate or violent conduct. Many times they are children who have been sexually abused and have themselves become sexual perpetrators. In fact, there was a child in the Giegers' home at the time J.D. was there who had set his parents' bed on fire because he did not get a desired toy for Christmas. Dr. Dykle's apparent grave concern about alarms being placed on the childrens' bedroom doors is surprising since it appears to be completely contrary to generally accepted, safe practice for therapeutic foster homes, something that he should have been aware of if he is indeed an expert in child abuse issues. Ms. Summerfield admitted that she was aware that this was a virtually universal safety practice in therapeutic foster homes and yet, paradoxically, used it as a factor in support of her finding that abuse had occurred, as a basis of denial of re-licensure. Ms. Summerfield also admitted that she had spoken with Camelot professionals who assured her that the Giegers had been exemplary foster care parents. She acknowledged that J.D. had made untrue statements in the past about other foster placements. She admitted that the only evidence of improper restraint, or any kind of abuse or neglect in the home, was essentially predicated on the statements of the two children who did not testify in this proceeding. She conceded that one of them had recanted and she knew of this well before the hearing. Mental health experts from Camelot who testified, established that it is a very frequent event for foster children placed in therapeutic foster homes to act out and to make false statements and accusations concerning their care-givers. They also indicated that J.D. had made such false allegations in the past against other caregivers. This was all information that a thorough investigation would have made known to the Department, at the time it was making the determination that there was a basis for a finding of abuse. The only witness other than Ms. Summerfield, presented by the Department, was Amy Hammett, the licensing official who actually signed the letter denying the license application. She testified that she did not review all of the documents that made up the Giegers' license application. Some other department employee had been assigned to the case and it had been later transferred to Ms. Hammett before the final decision was made. She had reviewed five relevant forms, but nothing else. She had no evidence to support the Department's position that the Giegers had relied upon the foster care services they provided for income to support their own family, other than the fact that they had taken a legal position in the appeal from the previous attempt at a Chapter 120 proceeding, to the effect that they had something in the nature of a property interest in their foster care license. This may have been a necessary position to take in an attempt to establish jurisdiction or standing in that proceeding, but other than that, and one statement attributable to Mr. Gieger that there was an adverse financial effect on the Giegers related to that proceeding, it was not established that the Giegers were relying on the income from foster care services to support their family. Rather, in the context of that statement and the Giegers legal position during the course of their appeal, the reference was most likely made in the context that the hiring of an attorney, with related expense, in prosecuting the first case, including an appellate proceeding, caused an adverse financial effect, which is understandable. That does not constitute credible, persuasive evidence that the Giegers were relying upon foster care services as income to support their own family and themselves in violation of any Department rule. Mrs. Gieger, indeed, testified under oath that they did not rely upon foster care income to support their family. Her testimony and that of others showing that they have successfully operated a well- managed, licensed home for a substantial period of time, shows that the Petitioners are financially capable of operating safely and successfully under a new license. There is no persuasive evidence to the contrary. The greater weight of the credible evidence is persuasive in establishing that the Giegers provide quality therapeutic foster care and have not engaged in the abuse with which they are charged. Even J.D. expressed the desire to come back and live with the Giegers and, after he reached 18 years of age, he did so. This certainly does not support the existence of abuse. Moreover, Earnest Thomas, J.D.'s guardian ad litem established that the Giegers provided J.D. with excellent care. He was a frequent visitor in their home and paid close attention to J.D.'s well-being during times pertinent to this case. Further, the caseworker, Sheila Donato, was the person who took J.D. from the Giegers' home when he was removed by the Department. On this occasion she stated that he was tearful and crying when he left the Giegers' home and asked if he would be able to come back to their home for Christmas. There were no bruises or other evidence that he had been harmed in any way. She established that the fact that he returned to the Giegers home after he turned 18 years of age is evidence that he had never been abused while there. After the Giegers' foster care license had been relinquished voluntarily by them under the above-referenced circumstances, Tyler's parents executed "guardianship papers" placing Tyler in the custody or guardianship of the Giegers and they continue to allow Tyler to reside in their home. The Department maintains that this was an illegal placement because the Giegers were not a licensed foster care facility at that time and had not secured a court order allowing Tyler to be in their guardianship. The circumstances were, however, that Ms. Giegers' mother was the attorney who prepared the guardianship papers for the Giegers and for Tyler's parents to execute. She rendered an opinion to them that that was sufficient to justify allowing Tyler to remain in the Giegers' home. Ms. Gieger testified that she knew of other teachers and other individuals who had used similar documents to establish a basis to take custody of a child in their home. She believed that what she was doing was legal. There was no intent by her, or Mr. Gieger, to engage in any kind illegal custody, guardianship or circumvention of the foster care licensure requirements, or any other illegal act. There is no evidence that Tyler had been adjudicated dependent and subject to the custody of the Department.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Department of Children and Family Services granting a foster home license to the Petitioners, authorizing their operation as a therapeutic foster home. DONE AND ENTERED this 9th day of August, 2007, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with Clerk of the Division of Administrative Hearings this 9th day of August, 2007. COPIES FURNISHED: Jerri A. Blair, Esquire Lockett & Blair Post Office Box 130 Tavares, Florida 32778 Ralph J. McMurphy, Esquire Department of Children and Family Services 1601 West Gulf Atlantic Highway Wildwood, Florida 34785 Gregory Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John J. Copelan, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Robert A. Butterworth, Secretary Department of Children and Family Services Building 1, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue in this proceeding is whether the Department of Children and Family Services should revoke the foster care license of Joe and Fatima Landon.
Findings Of Fact At all times material to this proceeding, the home of Joe and Fatima Landon was licensed by the Department of Children and Family Services as a foster home, having been issued License No. 0900-17 by the Department. On January 31, 2001, the Department received a report alleging that a child in the Landons' care, K.N.F., had two scrapes on her left hand that might constitute abuse. As a result of these allegations, Harvey Clark and Kevin Daniels, Child Protective Investigators employed by the Department, went to the Landons' home on the day of the alleged incident to investigate. Deputy Steven Parker of the Clay County Sheriff's Office also went to the Landons' to investigate. At the time of the hearing, K.N.F. was seven years old. She recalled that on the day of the incident, Mrs. Landon was driving her and another foster child to school. K.N.F. was reading in the back seat of the van. K.N.F. was trying to sound out the words and was unable to sound them out properly. Mrs. Landon turned around and Mrs. Landon's hand hit K.N.F.'s hand. K.N.F. described the incident as follows, "She turned around. And I was holding my hand on the book. She was going to point to the word, but my hand was there." She perceived Mrs. Landon to be angry, but also thought that Mrs. Landon was pointing to the word and hit her hand by accident.2 K.N.F. was referred to the Child Protection Team for an examination of her injury. She was examined by Dr. Bruce J. McIntosh. Dr. McIntosh found two abrasions, or scrapes, on the back of her left hand near the thumb. It was Dr. McIntosh's opinion that the abrasions were inconsistent with the injury being an accident in that one would not be pointing at something with "such force and velocity" to produce two abrasions to the hand. Notwithstanding Dr. McIntosh's testimony, the abrasions are best described in the photographs taken the day of the incident which reveal two small reddish abrasions on K.N.F.'s left hand. The evidence is sufficient to support a finding that Mrs. Landon reaching around to K.N.F. caused the abrasions on K.N.F.'s hand. Dr. McIntosh determined that the abrasions did not require specific treatment. However, he recommended that K.N.F. and the other foster child in the car be removed from the Landons because it was his impression that the children were afraid of Mrs. Landon. This impression was based primarily on statements made to him by K.N.F. and the other foster child during his examination, which are hearsay. K.N.F. and the other foster children were then removed from the Landons' home by the Department. At the time of the incident, Tanya Lee was employed by the Jacksonville Youth Sanctuary, a private organization contracted by the Department to provide foster care services, as a foster care case worker. She was the case worker for the two other foster children in the Landons' home. She visited the home frequently and found a happy, stable environment. She found the Landons to be very supportive and nurturing of the foster children including what she witnessed with K.N.F. during her home visits. Ms. Lee conducted exit interviews of the children for whom she was the case worker when they were removed from the home after the incident. It was her impression that the children felt safe in the Landons' home and wanted to be placed back with the Landons. This impression was based on the statements made by the children during the exit interviews and are hearsay.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Department of Children and Family Services enter a final order rescinding its revocation of the Landons' foster care license. DONE AND ENTERED this 31st day of January, 2002, in Tallahassee, Leon County, Florida. BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of January, 2002.
The Issue The issue for determination is whether Petitioner's foster care license should be renewed.
Findings Of Fact At all times material hereto, Cathy Taylor (Petitioner) was issued a foster care license by the Department of Health and Rehabilitative Services (Respondent). On October 25, 1994, Petitioner signed an "Agreement to Provide Substitute Care for Dependent Children (Substitute Care Agreement) with Respondent, agreeing to abide by or with certain conditions which were considered essential for the welfare of foster children in her care. The Substitute Care Agreement provided in pertinent part: We are fully and directly responsible to the department for the care of the child. * * * 6. We will not give the child into the care or physical custody of any other person(s), including the natural parent(s), without the consent of a representative of the department. * * * 9. We will accept dependent children into our home for care only from the department and will make no plans for boarding other children or adults. * * * 11. We will notify the department immediately of any change in our address, employment, living arrangements, family composition, or law enforcement involvement. * * * We will comply with all requirements for a licensed substitute care home as prescribed by the department. * * * We will immediately report any injuries or illness of a child in our care to the department. * * * 19. We will abide by the department's discipline policy which we received during the MAPP training. On October 13, 1993, Petitioner received a certificate from Respondent for successful completion of the MAPP training. On October 25, 1994, Petitioner signed a "Discipline Policy Agreement" (Discipline Agreement). The Discipline Agreement provides in pertinent part: [T]he following disciplinary practices are FORBIDDEN on our children. FAILURE OF THE FOSTER PARENT(S) ... TO COMPLY MAY RESULT IN THE REMOVAL OF THE CHILD(REN) FOR AN INVESTI- GATION AND RESULT IN THE CLOSURE OF YOUR HOME. * * * Hitting a child with ANY object. Slapping, smacking, whipping, washing mouth out with soap, or ANY other form of physical discipline. * * * (6) Delegating authority for punishment to another child or person that is not the Foster Parent(s) ... NO OTHER CHILD, ADOLESCENT, OR ADULT IN THE HOUSEHOLD SHALL HAVE THE AUTHORITY TO DISCIPLINE. On October 11, 1995, Petitioner and Trevor Barnes signed a "Bilateral Service Agreement" (Bilateral Agreement) with Respondent, agreeing to abide by or with several conditions which were considered essential for the welfare of the children placed in the foster home. The Bilateral Agreement provides in pertinent part: 2. We are fully and directly responsible to the Department for the care of the child. * * * We will not give the child into the care or physical custody of any other person(s), including the natural parent(s), without the consent of a representative of the department.... * * * 8. We will accept dependent children into our home for care only from the Department and will make no plans for boarding other children or adults. We will notify the Department if any adult relative or family members returns to live in the home. * * * 10. We will notify the Department immediately of any change in our address, employment, living arrangements, arrest record, health status or family composition, as well as any special needs of the child (i.e. health, school problems, emotional problems). * * * We will comply with all requirements for a licensed foster home as prescribed by the Department. * * * We will provide a nurturing, supportive, family- like home environment. * * * We understand that any breach of the Agreement may result in the immediate removal of the child(ren) and revocation of the license. At that time, Trevor Barnes was Petitioner's fiance. They were married in January 1996 and have, therefore, been married for less than one year. On October 11, 1995, Petitioner and Trevor Barnes signed a Discipline Agreement. The pertinent language of the Discipline Agreement was no different from the one signed on October 25, 1994. In December 1994, minor foster child N.R. was placed in the care of Petitioner. In 1995, minor foster children V.M. and J.M., two sisters, were placed in the care of Petitioner. Petitioner was responsible for the supervision and care of the foster children. Petitioner allowed her sister, an adult, and her sister's son, who was not placed with her under foster care, to live in her home. At the time, her relatives had no other place to live. Petitioner did not inform Respondent that her relatives were living with her. Petitioner violated the Substitute Care Agreement and the Bilateral Agreement. At times, Petitioner left the children under the supervision and in the care of Mr. Barnes and her sister, thereby, violating the Substitute Care Agreement and the Bilateral Agreement. On November 23, 1995, Thanksgiving day, one of Respondent's representatives, who was transporting V.M. and J.M. to visit with their prospective adoptive family, became aware of marks on one of V.M.'s legs. Respondent's representative overheard V.M. tell J.M. to look at what "mommy" had done. Respondent's representative examined V.M.'s leg and discovered marks on V.M.'s leg. She questioned V.M., regarding the marks, and V.M. confirmed what Respondent's representative had overheard. Also, V.M. informed Respondent that Petitioner spanked both she and her sister, J.M. Respondent's representative determined that the marks were consistent with marks which would result from striking the child's leg with a metal hanger. However, she could not determine if the marks were fresh or recent or old scars because she was not trained to make such a determination. There was no other evidence as to any other observations made regarding the marks. Respondent's counselor, assigned to V.M. and J.M., reported the incident. An investigation was begun by Respondent for alleged abuse. Neither V.M. nor J.M. testified at the hearing. The investigator who conducted the investigation on the alleged abuse did not testify. Petitioner denies striking V.M. with a metal hanger or with any object. Moreover, she denies having ever inflicted corporal punishment on the children. Her method of punishing the children was taking away their privileges to do the things that they enjoyed. Further, Mr. Barnes questioned V.M., regarding the marks, who told Mr. Barnes that the natural mother inflicted the marks on V.M. Respondent was unable to provide evidence as to the last period of time that the children had visited with their natural parent(s). Petitioner did not report the marks on V.M.'s leg to Respondent. Petitioner violated the Substitute Care Agreement. Regarding spanking the children, prior to the discovery of the marks on V.M.'s leg, Respondent suspected that Petitioner was spanking the children. Respondent's counselor to V.M. and J.M. questioned Petitioner as to whether she was spanking the children. Petitioner denied any spanking and responded with her method of punishment as indicated above. But, also, Petitioner informed Respondent's counselor that perhaps Mr. Barnes or her sister had spanked the children. Petitioner presented no evidence that she had confronted both her sister and Mr. Barnes as to whether they were spanking the children and that she had instructed them not to do so, as such action was violative of the Discipline Agreement. Further, there is no evidence that Respondent questioned Petitioner's sister or Mr. Barnes. There is insufficient evidence to find that Petitioner used corporal punishment. However, the circumstances presented causes concern to the extent that Respondent was justified in questioning the suitability of Petitioner to be a foster care parent. At all times material hereto, Mr. Barnes did not live with Petitioner. He lived with Petitioner's grandmother. Petitioner never indicated to Respondent that Mr. Barnes either lived in the foster home or did not live in the foster home. Although he spent considerable time at Petitioner's home, the evidence is insufficient to show that he lived with her. Even if Mr. Barnes was living with Petitioner, Respondent became aware of it in October 1995. Respondent's counselor, who was assigned to N.R., believed that Mr. Barnes was living with Petitioner and informed him that, if he was going to live with Petitioner, she had to perform a background check on him. Respondent's counselor obtained the necessary information from Mr. Barnes to perform the background check. At that time, Respondent was aware that Petitioner and Mr. Barnes were planning to be married. Petitioner received a monthly allowance from Respondent for the care of the minor foster children. Petitioner became unemployed. Petitioner did not report her unemployment to Respondent. However, Respondent's counselor, who was assigned to V.M. and J.M., was aware of Petitioner's unemployment but assumed that Mr. Barnes was Petitioner's husband and that he was supporting the family. However, Petitioner and Mr. Barnes were not married, he was not living in Petitioner's home, and he was not supporting the family. Regardless, Petitioner violated the Substitute Care Agreement and the Bilateral Agreement. Petitioner paid too little attention to V.M. and J.M.'s hygiene and personal appearance. The hygiene was inappropriate to the point that the children's school contacted Respondent. The children frequently appeared to be unkept, and Respondent did not observe the children with any new clothes. Because of her unemployment, Petitioner had insufficient income to adequately support the minor foster children. Because of the marks on V.M.'s leg, because of V.M.'s statement to Respondent that Petitioner inflicted the injury to her leg and had spanked both she and her sister, and because Respondent had determined that Petitioner had violated its rules and regulations, Respondent removed the minor foster children from Respondent's home. Furthermore, Respondent refused to renew Petitioner's foster care license. Petitioner no longer wishes to renew her license.3 CONCLUSIONS OF LAW The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes. Petitioner has the burden of proving by a preponderance of the evidence that her foster care license should be renewed. Department of Transportation v. J. W. C. Company, 396 So.2d 778 (Fla. 1st DCA 1981); Balino v. Department of Health and Rehabilitatives, 348 So.2d 349 (Fla. 1st DCA 1977). Section 409.175(1), Florida Statutes, provides in pertinent part: The purpose of this section is to protect the health, safety, and well-being of all children in the state who are cared for by family foster homes, residential child-caring agencies, and child-placing agencies, by providing for the establishment of licensing requirements for such homes and agencies and providing procedures to determine adherence to these requirements. Rule 10M-6, Florida Administrative Code, sets forth the minimum standards by which foster parents must be evaluated. Rule 10M-6.012 provides in pertitnent part: Section 409.175, F.S., mandates that the department establish minimum standards, or rules for the types of care defined in the statute. The standards, once promulgated, have the full force and effect of law. The licensing rules specify a level of care below which programs will not be able to operate. Rule 10M-6.024 provides in pertinent part: (4) Responsibilities of the Substitute Care Parents to the Department. * * * (b) The substitute care parents are required to participate with the department in relicensing studies and in ongoing monitoring of their home, and must provide sufficient information for the department to verify compliance with all rules and regulations. * * * (g) The substitute care parents must notify the department regarding changes which affect the life and circumstances of the shelter or foster family. Rule 10M-6.025 provides in pertinent part: Length of Marriage. If married, substitute care parents should have a stabilized, legal marriage of at least one year prior to being licensed. Income. Substitute care parents must have sufficient income to assure their stability and the security of their own family without relying on board payments. The substitute family must have sufficient income to absorb four to six weeks of a foster child's care until a board payment is received. Petitioner has failed to meet her burden of proof. Petitioner has failed to meet the minimum standards of Rule 10M-6. In addition, during the course of her licensure, Petitioner violated several provisions of the Substitute Care Agreement and the Bilateral Agreement. Regardless, Petitioner has indicated that she no longer wishes to renew her foster care license.4
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health and Rehabilitative Services enter a final order denying the renewal of Cathy Taylor's foster care license. DONE AND ENTERED this 26th day of November 1996 in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 26th day of November 1996.
The Issue Whether the Petitioner is entitled to renewal of a foster care license.
Findings Of Fact Petitioner, Betty Stewart, was licensed by the Department to operate a foster care home on August 5, 1991. Thereafter, until the instant matter arose, Petitioner received a renewal of this license. On August 18, 1997, the Department notified Petitioner that her license would not be renewed. The decision was based upon Petitioner's alleged failure to meet the minimum standards for foster parenting. More specifically, the denial alleged concerns with Petitioner which included: Standard housekeeping standards. Counselors have reported that your home was not kept clean. They noted a stale odor, and observed clothes piled up and roach infestations. Lack of stability in housing. The licensing record indicates that you have had at least five different residences since you were licensed in 1991. Constant moving does not provide stability for the children placed with you. Inadequate medical care for a child in our home. The counselor for a child who had been in your home indicated that you failed to get timely dental care for a child in your home that resulted in the child needing to have a tooth extracted. Additionally it was reported that you did not follow-up with getting a dermatologist's prescription filled for this same child. Concerns that your son was dealing in illegal drugs. While your son did not live with you, he was in and out of your home and having contact with the foster children in your home, which in fact could have a potentially negative impact on them. You did admit to Laura Williams, the foster parent liaison, that you were aware that he was dealing drugs. During the time of Petitioner's licensure, she was licensed at five different locations. That is, she moved from one property to another and relicensed the new location, five times in six years. Additionally, during the time of licensure, Petitioner received a "provisional license" on four occasions. A provisional license is issued when the applicant must take additional measures to comply with all licensure requirements. On four occasions the Department worked with the Petitioner so that she would obtain licensure. For each license, Petitioner executed an agreement to provide substitute care for dependent children as prescribed by the Department. This agreement required Petitioner to comply with all rules implemented for foster care homes and specifically required Petitioner to report any illness of a child to the Department. In one instance, the Petitioner failed to seek immediate dental care for a child placed in her home. The dental problem was made known to the Department when the child was caught shoplifting Oragel, an over-the-counter product used to relieve toothache. Petitioner also did not compel a child to attend counseling sessions with a licensed therapist. Petitioner was responsible for assuring that the child be given transportation to and from such sessions. Although limited to two children by license restriction, Petitioner typically had more than two children placed in her home. Given the shortage for foster care homes, the Department routinely waived the limit and placed additional children with Petitioner even though she was ill-equipped to deal with the extra children. The Petitioner's son, who is now deceased, did not reside with Petitioner during the final licensure period. Although he resided in the community near her home, there is no evidence to support a finding that he was dealing drugs from the licensed premises.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a Final Order denying Petitioner's request for license renewal as a foster care home. DONE AND ENTERED this 13th day of March, 1998, in Tallahassee, Leon County, Florida. J. D. 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 Filed with the Clerk of the Division of Administrative Hearings this 13th day of March, 1998. COPIES FURNISHED: Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard A. Doran, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Colleen Farmsworth Assistant District Legal Counsel Department of Children and Family Services 111 South Sapodilla Avenue Suite 201 West Palm Beach, Florida 33401 Betty Stewart, pro se 812 Foresteria Drive Lake Park, Florida 33403
The Issue The issue in this proceeding is whether the Department of Children and Family Services should revoke the foster care license of Gladys Kelly.
Findings Of Fact At all times material to this proceeding, Respondent's home was licensed as a foster home, having been issued license No. 0901-08-3 by the Department. Respondent was also employed at a child care facility named Tadpoles and Toads Daycare Center. Her primary duties at the daycare center were kitchen duties, although she spent a relatively small amount of time with some of the children. In 1998 and again in 2001, Respondent signed an Agreement to Provide Substitute Care for Dependent Children in conjunction with her licensure as a foster care provider. In said agreements, Respondent agreed to abide by the Department's discipline policy which she received during Model Approach to Partnerships and Parenting (MAPP) training. According to Janet McMahan, a foster care licensing supervisor for the Department, MAPP training is required of foster care providers and addresses the issue of corporal punishment. Specifically, the training informs the foster care providers that corporal punishment is prohibited in a foster home. Respondent also signed a document in 1993, 1999, and 2001 entitled, "Foster Care: Policy Statement on Discipline." The 1999 and 2001 versions of this document specifically cite Rule 65C-13.010(1)(b)5., Florida Administrative Code, and state in pertinent part: "Prohibited disciplinary practices include . . . hitting a child with an object; spanking a child " Brian Snow was employed by the Department as a family services counselor and protective investigator for approximately two years. He left employment with the Department in April 2002. On October 22, 2001, he received a report about possible medical neglect and other mental injuries regarding children at Tadpoles and Toads Daycare Center where Respondent was employed. He went to the daycare center and interviewed children and staff, including Respondent. The allegations regarding medical neglect did not involve Respondent. However, he investigated allegations regarding Respondent "popping" children on the hands. On October 24, 2001, Mr. Snow went to Respondent's home to investigate allegations that Respondent spanked a child with a belt and hit children on the hands with a plastic folding fan. According to Mr. Snow, two children at Ms. Kelly's home told him that Ms. Kelly hits or "pops" them on the hand when they did something wrong, and one child told him that Ms. Kelly spanked her with a belt. However, as none of the children testified at the hearing, these statements are hearsay. Mr. Snow then again went to Tadpoles and Toads Daycare and again interviewed Ms. Kelly. Shirley Tamul, a childcare licensure counselor for Petitioner, accompanied Mr. Snow to the daycare center for the interview. During that visit, Ms. Kelly admitted to "popping" the foster children on the hand with a plastic fan when the children act up in church or at a store. Mr. Snow and Ms. Tamul discussed the Department's policy prohibiting corporal punishment by foster care parents with Ms. Kelly during the October 24, 2001, visit to the daycare center. During her testimony at the hearing, Ms. Kelly again admitted to "popping" the children on the hand to "keep them in line" when they act up. She adamantly denied using a belt to spank any children in her care. There is insufficient evidence to prove that Ms. Kelly hit any child with a belt, notwithstanding the hearsay statement attributed to one of Ms. Kelly's foster children. However, Ms. Kelly admits to "popping" the children on their hands because of their behavior. The children's hearsay statements to Mr. Snow regarding Ms. Kelly's "popping" them on the hand supplement Ms. Kelly's admission to that conduct. Mr. Snow did not observe any physical injury on the children he interviewed at either the daycare center or Respondent's home.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Department of Children and Family Services enter a final order revoking the foster home license held by Respondent. DONE AND ENTERED this 31st day of May, 2002, in Tallahassee, Leon County, Florida. ______ BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of May, 2002.
