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 Petitioner Antoinette Scanziani's license as a family foster home should be renewed.
Findings Of Fact Based on the testimony and evidence received at the hearing, the following findings are made: Respondent is the state agency responsible for licensing and regulating family foster homes. Children's Home Society (CHS) is the contract agency in the Central Licensing Zone that directly supervises licenses in that area. Petitioner filed an application to renew her family foster home license on May 26, 2006, which was originally issued for one year in August 2005. Prior to the issuance of her family foster care license on August 19, 2005, Petitioner had completed, inter allia, 30 hours of Models Approach Partnership and Parenting (MAPP) training and signed a Foster Parent Agreement, prepared by CHS, which spells out the duties and obligations of a foster parent. Paragraph 12 of the Agreement specifically states that a foster parent will notify CHS immediately of any change of address. Under Respondent's rules, a family foster care license is not transferable, and a new sanitation inspection and recommendation must be completed before Respondent can issue a new license for the new address. The family foster care license was issued to Petitioner for 5831 Bent Pine Drive, Apartment 300, Orlando, Florida 32822. The first foster child was placed in Petitioner's care on September 1, 2005. In August 2005, Petitioner began a dispute with the rental management company who managed the apartment complex where she lived. This resulted in Petitioner giving the company 60 days' notice that she would not renew her lease after October 31, 2005. The rental company, mean while, would not accept her tender of rental payments for August and September 2005, and initiated eviction proceedings in County Court. Prior to the final hearing, a stipulation was signed by the parties and approved by the County Court. Petitioner moved out of her apartment on October 31, 2005. On November 1, 2005, Petitioner, along with one foster child, moved into a house located at 7741 Fort Sumter Drive, Orlando, Florida 32822. CHS was not notified of this change of address until November 11, 2005. The CHS Dependency Specialist worked diligently with Petitioner to obtain a license for her new residence. DCF issued a new family foster care license for 7741 Fort Sumter Drive, Orlando, Florida 32822 on December 20, 2005. Petitioner maintained an unlicensed foster home from the period of November 1, 2005, through December 20, 2005. Although the foster child residing with Petitioner was not removed from the home, Petitioner was reminded of the need to notify CHS prior to any moves in the future. On April 6, 2006, Petitioner notified CHS that she had moved from her Fort Sumter Drive, Orlando, residence to a residence in Poinciana, Florida (Osceola County) at the end of March 2006. It was subsequently determined that a Writ of Possession for the Orlando residence was issued by the Orange County Court on March 2, 2006. Petitioner testified at the hearing that she moved at the end of March 2006, because of poor maintenance and discriminatory and retaliatory conduct by the landlord. The foster child was not removed from the home and the CHS Dependency Specialist again worked diligently and patiently with Petitioner to obtain a license for her family foster care residence at 127 Conch Drive, Kissimmee, Florida 34759 (Poinciana). Due primarily to Petitioner's lack of cooperation, a completed health inspection of the home was not completed until August 4, 2006. During this time, Petitioner submitted her application for relicensure on May 26, 2006. On July 13, 2006, the CHS Dependency Specialist hand delivered a letter, dated July 11, 2006, to Petitioner reminding her that a face-to-face visit and a walk through of the home was required before recommendation could be given. Petitioner was given a check-list of 16 items which were due to be completed prior to July 16, 2006, or CHS could not recommend renewal of her foster care license. On July 18, 2006, CHS sent Petitioner a follow-up letter. Although another home inspection had taken place on July 17, 2006, it was not a satisfactory home health inspection. In addition, proof of completion of 12 hours of training had not been demonstrated and six other items on the check-list were, also, not completed. The deadline for compliance was extended to August 3, 2006, with a reminder that the existing license expired on August 19, 2006. CHS followed with reminder telephone calls on July 19 and 20, followed by another letter on July 25, 2006, that all remaining items must be completed by August 3, 2006. Petitioner demonstrated compliance with four of the items, but did not provide Radon Test results or proof that her 2A10BC fire extinguisher was tagged and inspected. On August 18, 2006, the foster child, living in Petitioner's home, was removed. On August 19, 2006, Petitioner's family foster care license expired by operation of law, without Petitioner having submitted a completed application package to CHS. On August 28, 2006, Respondent sent Petitioner a notice of intent to deny her application for relicensure. The reasons for the denial were outlined on the four-page letter. Petitioner objected to the notice and requested a formal hearing, and this proceeding followed. From the evidence, it is apparent that CHS worked diligently in helping Petitioner transfer her existing license two times, when Petitioner moved without notifying CHS before the move; and encouraged and worked with Petitioner to complete the application for renewal a month before the expiration of her license. However, due to Petitioner's procrastination and/or resistance, the completed documentation was not sent in to Respondent prior to the expiration of her prior license.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that: Petitioner, Antoinette Scanziani's, application for a renewal of her family foster home license be denied. DONE AND ENTERED this 11th day of May, 2007, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of May, 2007.
The Issue Are Respondents entitled to have Petitioner renew their license to provide foster home care?
Findings Of Fact Petitioner licenses and re-licenses persons who provide residential care to children. This process is in accordance with Chapter 409, Florida Statutes, and Chapter 65C-13, Florida Administrative Code. Respondents have held a foster home license pursuant to those laws. On March 16, 1998, Petitioner advised Respondents that Respondents would not be re-licensed for the upcoming year for reason that: "A recent investigation of neglect resulted in a confirmed report against you." As was revealed at the hearing, the more specific basis for the denial was in accordance with Section 409.175(8)(b)1, Florida Statutes, in which Petitioner accused Respondents, in the person of Sherrie Rund, of a negligent act which materially affected the health and safety of a child in her home. That child is J.V., date of birth July 15, 1995. Moreover, the basis for non-renewal of the foster home license was premised upon the further allegation that Sherrie Rund was found by Petitioner's counselor to be unable to secure the "Abuse Registry" prior to issuance of a new foster home license, as provided in Rule 65C- 13.006(3), Florida Administrative Code. On January 6, 1998, Respondents were caring for three foster children in their home in Inverness, Florida. In addition to J.V. there was M.V., who was 3½ years old, and J.S., who was 12 months old. J.V. and M.V. are brothers. The day before Petitioner had asked Respondent, Sherrie Rund, to take two additional children into her home to receive foster care. On the day before, Mrs. Rund had also suffered a miscarriage. Mrs. Rund left her home on the morning of January 6, 1998, to run some errands and to eventually drive to Brooksville, Florida, to pick up the newest foster children. At some point in time in her travels on January 6, 1998, with J.V. and J.S. in her car, Mrs. Rund noticed a loud knocking sound in her car and decided to have an automobile mechanic with whom she was familiar check the status of her car, in anticipation of her trip to Brooksville. Upon arriving at the mechanic's shop, the mechanic told Mrs. Rund that she was not going anywhere in the car, and that something was not right with the car. The mechanic got into the car with Mrs. Rund and they made a test drive. When they returned to the mechanic's shop, the mechanic pointed out a block that was part of the suspension system, referred to as a lift kit in the area of the rear axle. That block had shifted over and the mechanic told Mrs. Rund that all that would be necessary to correct the problem was to adjust two bolts. When Mrs. Rund, the mechanic, and her children had returned to the shop, the children were asleep. As a consequence, Mrs. Rund asked the mechanic if it would be acceptable to leave the children in the car while the mechanic made repairs to the automobile. Apparently, the mechanic was not opposed to that arrangement. The mechanic told Mrs. Rund that it would only take a couple of minutes to tighten the parts that were causing the problem. With that assurance, Mrs. Rund allowed the mechanic to lift the car off the concrete floor in the shop by the use of a hydraulic lift. Once the car had been lifted, the distance from the car to the shop floor was approximately 3 to 4 feet. The mechanic began his work and noticed that threads in the bolts that were being tightened had become stripped. At that time Mrs. Rund was sitting on a stool by the car door. The mechanic summoned her and asked to show her what was wrong. As Mrs. Rund walked around the car she heard a slight noise. It was J.V. J.V. had been strapped in his car seat attached to the back seat of the automobile, but he had awakened from his nap in the back seat of the car, gone between the seats in the front of the car, opened the door and stepped out onto the platform that supported the car on the lift. Before anyone could intervene, J.V. fell from the platform to the floor of the shop fracturing his skull. The skull fracture was of the temporal bone. In addition, J.V. also suffered an abrasion of one ear and split his lip in the fall. The automobile in question was a Jeep vehicle with tinted windows, that created a condition in which Mrs. Rund could not see into the automobile while it was on the lift. After the accident Mrs. Rund immediately picked the child up and noted that he appeared "a little incoherent." She could not drive her car. But she knew that her father was about two miles away. Mrs. Rund's father immediately responded to her request for assistance. They drove J.V. to the emergency room at the Citrus Memorial Hospital in Inverness, Florida, for treatment. Later that day, J.V. was taken to Shands Hospital at the University of Florida, in Gainesville, Florida, for additional treatment. Mrs. Rund and her father managed to transport J.V. to the emergency room at Citrus Memorial Hospital within 10 minutes of the accident. Upon arrival Mrs. Rund attempted to advise Petitioner about the accident by contacting the case worker responsible for her foster children. Four of the people who were on the list of possible contacts were unavailable. Mrs. Rund also wanted to inquire about the status of the two new children who were going to be left in her care that day. Eventually, Mrs. Rund explained to a case worker the circumstances of J.V.'s accident. In answer to her question, the case worker told Mrs. Rund that the two additional children were going to be brought to Mrs. Rund's home in any event. The children were brought to Mrs. Rund's home on January 6, 1998, and were kept for the moment by Mrs. Rund's mother. The two additional children were siblings 2½ and 5 years old. Mrs. Rund spent about 6 to 7 hours at the Citrus Memorial Hospital attending J.V. and making certain of his care. Beyond that time, Mrs. Rund felt the need to return home and take a shower because of her miscarriage the day before and because she had blood on her shirt resulting from J.V.'s injuries. Mrs. Rund also had concern about the welfare of the two additional children that were being brought to her home. There had been some discussion between Mrs. Rund and a nurse at the Citrus Memorial Hospital, who insisted that Mrs. Rund should accompany J.V. to Shands Hospital. Mrs. Rund replied that she needed to check the situation at home and then she would go to Shands. Eventually, the nurse contacted someone from the Child Protective Service. Mrs. Rund spoke to that person and having decided that it would be acceptable for J.V. to ride to Shands unaccompanied by her, Mrs. Rund allowed J.V. to be transported to Shands Hospital without her. A short time later, Mrs. Rund's parents picked her up at the Citrus Memorial Hospital and took her home. By that time Christopher Rund, Mrs. Rund's husband, had arrived at their home and was available to take care of the other four children. After spending a little time with the children in her home and taking a shower, Mrs. Rund called Shands Hospital to check on the well-being of J.V. Mrs. Rund went to Shands Hospital the following day to see J.V. The two newest children were removed from Respondents' home. J.S., one of the original three children cared for by Respondents, was also removed from their home. The brothers J.V. and M.V. were returned to the Respondents on January 9, 1998, where they have remained. M.V. and J.V. were eventually adopted by the Respondents on May 22, 1998. As Mrs. Rund acknowledges, she momentarily neglected the needs of J.V. when he fell from her automobile to the floor of the mechanic's shop. Her response to his needs beyond that point was not neglectful given the circumstances that have been described. She immediately arranged for his care and treatment. The failure to accompany J.V. to Shands Hospital was not neglectful. Petitioner instituted an investigation identified as Abuse Report 98-001853, involving the incident on January 6, 1998, in which J.V. was injured when falling from the automobile to the floor of the repair shop. That report is referred to as institutional abuse-neglect, involving the conduct of Sherrie Rund and her foster home. Through the investigation, the report was verified for inadequate supervision or care pertaining to the accident, as well as the verification of other physical injuries associated with neglect. Richard V. Perrone, Adoptions and Related Services Counselor for Petitioner, worked with the Respondents from March of 1997 through May of 1998 as an adoption counselor. In correspondence for the record, he indicates that he has seen the family, and the children in their care on a monthly basis and that the home was always appropriate and the children well cared for. In particular, Mrs. Rund was observed by Mr. Perrone to be active with children's care and appropriate services. Mr. Perrone notes the adoption of the children that he visited.
Recommendation Upon consideration of the facts found and the conclusions of law reached, it is RECOMMENDED: That the foster home license held by Christopher Rund and Sherrie Rund be renewed. DONE AND ENTERED this 29th day of October, 1998, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 29th day of October, 1998. COPIES FURNISHED: Joseph Sowell, Esquire Department of Children and Family Services Post Office Box 220 Sumterville, Florida 33585 Christopher Rund Sherrie Rund 13059 East Shawnee Trail Inverness, Florida 34450 John S. Slye, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether Petitioner's application for renewal of her family foster home license should be denied on the grounds set forth in the June 20, 1995, letter from the Department of Health and Rehabilitative Services (HRS), Respondent's predecessor, to Petitioner.
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made: Respondent is (as was its predecessor, HRS) a state government licensing and regulatory agency. From September of 1989 to June 30, 1995, Petitioner was licensed by HRS (on a yearly basis) to operate a family foster home at her residence in Palm Beach County. In May of 1994, as part of the licensure renewal process, Petitioner signed an "Agreement to Provide Substitute Care for Dependent Children" (Agreement). In so doing, she agreed that she would, as a licensed foster parent, among other things, "comply with all requirements for a licensed substitute care home as prescribed by the department," "immediately report any injuries or illness of a child in [her] care," and "abide by the department's discipline policy." The previous day (May 23, 1994), Petitioner had received and signed a copy of HRS's "discipline policy," which provided as follows: FOSTER PARENT(S): You are aware that for some time, Health and Rehabilitative Services has discouraged the use of Physical punishment, including spanking, for children in foster care. Now, however, we have an Administrative Rule statewide which prohibits foster parents from using corporal punishment on foster children. This section of administrative Rule 10M- 6, which deals with discipline is reproduced in the following paragraph. "Licensing and relicensing procedure developed by the Department shall include the presentation of written foster care disciplinary policies to applicants and licensed foster parents to ensure that appropriate nonabusive disciplinary practices are used in dealing with foster children's behavior. Discipline is a training process through which the child develops the self- control, self-reliance and orderly conduct necessary for them to assume responsibilities, make daily living decisions and live according to accepted levels of social behaviors. The purpose of discipline is education and rational. It focuses on deterring unacceptable behavior by encouraging the child to develop internal controls. Foster parents are expected to define rules which establish limits and types of acceptable behavior. These rules must be clearly explained to each child and applied equally to all children. Prohibited disciplinary practices include group punishments for misbehavior of individuals; withholding of meals, mail or family visits; hitting a child with an object; spanking a child; physical, sexual, emotional and verbal abuse; humiliating or degrading punishment which subjects the child to ridicule; being placed in a locked room; and delegation of authority for punishment to other children or persons not known to the child. The use of isolation shall be used only for short periods of time as a therapeutic measure when a child's behavior is temporarily out of control. Such periods of isolation shall be observed and supervised by the foster parent to ensure the safety of the child." If you have problems with this new rule, please discuss this with your licensing counselors who will be able to help you work out alternative disciplinary techniques for each child, according to his/her needs. My signature acknowledges that I have read this statement, that I understand the content and agree to abide by it. A. G. is a 12 year-old foster child who currently resides in Boys Town in Tallahassee. Before entering the foster care system, he had been the victim of abuse. In 1994, A. G. lived in Petitioner's family foster home along with three other male foster children, J. W., M. M., and B. P., all of whom were teenagers with troubled pasts and juvenile records. On or about December 15, 1994, the day before A. G. was scheduled to leave Petitioner's home for another foster home, the other boys angrily reported to Petitioner that A. G. had misappropriated a gift certificate that belonged to M. M. and a watch that belonged to B. P. M. M. was particularly upset and angry about what A. G. had done. Upon receiving this report, Petitioner instructed the boys to "take care of" the matter. The boys then went to A. G.'s room and proceeded to hit A. G. with their hands and a belt. A. G. sustained a number of bruises on his buttocks and the back of his legs as a result of the attack. A. G. yelled and screamed as he was being hit. Petitioner was in her bedroom, which was adjacent to the room where the beating took place. At no time during the attack did she leave her bedroom to tell the boys to stop beating A. G., nor did she take any other action to stop the beating. Petitioner exercised extremely poor judgment in instructing the older boys to "take care of" the matter. She should have realized that the carte blanche she gave J. W., M. M., and B. P., who were upset and angry with A. G., placed A. G.'s physical safety at risk. She compounded her error by not carefully monitoring the older boys subsequent activities to make sure that they resolved the matter appropriately without harming A. G. The following morning, A. G. left Petitioner's home for another foster home, that of Janet Kerimoglu and her husband. A. G. arrived at the Kerimoglu home with very few belongings. Moreover, his physical appearance concerned Ms. Kerimoglu. A. G. appeared to be very thin. Furthermore, he had head lice and fresh bruises on his body. When asked about the bruises, A. G. explained that he had been beaten up by some teenagers the day before at Petitioner's home. A report that A. G. had been the victim of abuse while at Petitioner's home was made to HRS's abuse registry. The report was investigated by HRS's protective services investigative unit. On January 10, 1995, following the completion of the investigation, FPSS Report No. 94-117809 issued. The report classified as "proposed confirmed" the allegation that Respondent was guilty of neglect in connection with the beating that A. G. received at her home on or about December 15, 1994. According to the report, the beating occurred "because of [Petitioner's] lack of supervision and [her] failure to protect [A. G.]," a finding which is supported by the preponderance of the record evidence in the instant case. A request to expunge or amend the report was denied on June 6, 1995. By letter dated June 20, 1995, Petitioner was advised that her foster family home license would not renewed because of the finding of neglect made in FPSS Report No. 94-117809.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order denying Petitioner's application for renewal of her family foster home license. DONE AND ENTERED this 4th day of September, 1998, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 4th day of September, 1998.
The Issue Whether the Respondents are entitled to renewal of their foster home license.
Findings Of Fact Prior to the re-licensing at issue in this proceeding, the Respondents were licensed foster care parents with whom the Department placed minor children for care. When their license came up for renewal in December 1998, the Department informed the Respondents that their license would not be renewed as they had not met the minimum standard for foster parenting. The Respondents have a history of minor incidents which, taken as a whole, have suggested to the Department that they are not able to provide the quality of care to foster children as contemplated by the statute and rules governing foster care providers. More specifically, the Respondents have left minor children ages four and nine in the care of developmentally delayed adolescents. Respondents were not authorized to leave the children with the adolescents nor did they provide meaningful supervision for the young minors. The incident resulted in a call to police who were summoned when the children called their mother. Respondent, Estoria Walker, has also used disparaging comments to and in front of a minor child who was placed in her care. In this instance, in front of the child's case worker, Respondent complained to the child of the volume of food consumed by the child. She sought additional funds to feed the child as she felt the child's board rate was inadequate to cover the costs of feeding her. Also, the Respondent complained about how the child kept herself. These disparaging remarks to and in front of the child did not contribute to a nurturing environment for the child. The child was ultimately moved from Respondents' home as she was miserable there, and the Respondents did not want her to remain. On another occasion the Respondents were caring for a teenager who became pregnant. Respondents delegated the task of informing the Department of the pregnancy to the teen. As foster parents they assumed no responsibility for notifying the caseworker of the situation. As a result, the caseworker for the teen was not promptly advised of the pregnancy. Respondents gave an adolescent in their care permission to leave their home for an extended visit to the child's relative. They did so without the caseworker's approval or knowledge of the visit. They did so without following Department guidelines for extended visits outside of the foster home. Most of the complaints to the Department resulted from the Respondents' failure to provide a loving, nurturing environment for the foster children placed in their home. Nevertheless, other incidents resulted from a claim of improper discipline, including spanking. As to all of these complaints the Department sought to work with the Respondents, to counsel them for performance improvement, and to allow them to retain children in their home despite serious reservations. From as early as 1995, the Department received complaints from the foster children in the Respondents' home that they had been inappropriately disciplined with spanking. As a result, Mrs. Walker was required to review and execute the disciplinary policy to assure the Department that the Respondents would not use physical discipline with the children. Despite this reminder, additional complaints of physical discipline were made against the Respondents. When the time came for the Department's committee to consider the renewal of Respondents' license, the entire licensing file documenting all of the above-identified issues was considered. Thereafter, the Department determined it would not renew the license.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services enter a final order denying Respondents' request for license renewal as foster care parents. DONE AND ENTERED this 19th day of August, 1999, 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 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of August, 1999. COPIES FURNISHED: Deborah Guller, Esquire Department of Children and Family Services 201 West Broward Boulevard Suite 502 Fort Lauderdale, Florida 33301 Albert and Estoria Walker 5311 Southwest 25th Street Hollywood, Florida 33023 Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John S. Slye, General Counsel Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue to be decided in this case is whether the Petitioner's, Clemintine Lyons, foster home relicensure application should be approved.
Findings Of Fact Clemintine Lyons was first licensed as a foster home in 1988. The licensing staff had several concerns at that time. These concerns included the fact that Ms. Lyons had no prior parenting experience and was taking medication for depression. However, those concerns were addressed and Ms. Lyons was licensed. During the initial licensing period, the Department had difficulty with Ms. Lyons regarding her willingness to work cooperatively with the Department regarding the children in her care and to contact the Department before she made major decisions regarding the children in her care, such as parental visitation. For example, against the wishes of HRS and as a form of punishment for Dorinda, Ms. Lyons kept Dorinda from attending an HRS picnic for prospective adoptees to meet adoptive parents. The HRS staff was concerned about this incident because they were trying to arrange an adoption for Dorinda and the picnic was an important step in that process. Ms. Lyons was also unhappy about HRS counselors trying to have private conversations with Dorinda. Further, on one occasion, Ms. Lyons left the HRS district where she and Dorinda lived to take Dorinda to Dorinda's mother's home in another district to retrieve some clothing given to Dorinda by Ms. Lyons which had been left at the mother's home. Ms. Lyons made the trip because Dorinda was short of clothing. Ms. Lyons took Dorinda to her mother's home without notifying any HRS counselors. When Ms. Lyons was ready to leave, Dorinda refused to get in the car, so Ms. Lyons called the police to assist her in taking Dorinda back to her house. The incident was of concern because Ms. Lyons unilateral action could have potentially placed Dorinda in a dangerous situation, given the fact that the abusive parent was still in the home. In short, both incidents involving Dorinda Small demonstrated very poor judgment on the part of Ms. Lyons regarding the care and protection of a child in her care. Department personnel also testified about another incident which occurred during initial licensure of Ms. Lyons regarding two brothers, a six- year old and an eight-year old, she had just received as foster children in her home. The same day that they were brought to the home, they called a taxi while Ms. Lyons was taking a nap and had themselves driven to their aunt and uncle's home. However, the evidence regarding the elopement of these two boys was very vague and cannot be used to infer a lack of ability to care for foster children on the part of Ms. Lyons, especially since foster children come to foster care with a lot of problems including disciplinary and emotional problems. Additionally, in 1989, Ms. Lyons applied to the Department to become an adoptive parent. While going through the training and background checks, the Department, for the first time, discovered an incident involving a foster child who had been placed in Ms. Lyons' home. Clara Mitchell, a neighbor and friend of Ms. Lyons, informed the Department that she had invited Ms. Lyons and Dorinda Small, a foster child living in Ms. Lyons' home, to her home for Thanksgiving. Before eating, Ms. Lyons fixed a plate of food for Dorinda. When Dorinda noticed that tomatoes had been placed on her plate, she told Ms. Lyons that she did not like them and would not eat them although she had eaten tomatoes before. Ms. Lyons became upset and hit Dorinda across the face and told her to go home. Dorinda left Ms. Mitchell's home, but had to wait outside for Ms. Lyons because Ms. Lyons' door was locked. Ms. Lyons stayed at Mrs. Mitchell's home for about 45 minutes to an hour before going back home and letting Dorinda come inside. Once the Department learned of this incident, the Department made it very clear to Ms. Lyons that the Department's policy prohibited the use of any corporal punishment on a foster child. Ms. Lyons admitted she was aware of this policy and that she understood she was not to use corporal punishment on a foster child again. However, despite the problems with Dorinda Small and the two boys, Ms. Lyons was relicensed on the recommendation of a licensed counselor who felt that because of the desperate need for foster parents, Ms. Lyons with more training and closer supervision, would learn to grow into the role of a foster parent. Towards that end, Ms. Lyons voluntarily agreed to go through additional training known as the Model Approach to Partnerships and Parenting. The model approach program was a thirty-hour training seminar. One of the topics specifically addressed was role identification, specifically the role of a foster parent in relation to HRS, the foster child and the biological family. This training was in addition to the training that Ms. Lyons went through before her initial licensure. In addition, Ms. Lyons was sent information on several different occasions which outlined Ms. Lyons' duties and roles in interacting with HRS, the foster child and the biological family. One of the primary duties of the foster parent is to provide a caring environment for the foster child as well as consult with either HRS or the biological parent before making any major decisions regarding the foster children. It quickly became apparent that the additional training had not improved Ms. Lyons' ability as a foster parent. From July 17 through August 28, 1991, three foster children were placed in Ms. Lyons' home. The children's mother, Robin Williams, had requested foster care assistance for her six children, while Ms. Williams went through voluntary drug rehabilitation. The three oldest, Rasheen, age ten, Shykimma, age eight, and Raheem, age seven, were placed with Ms. Lyons The voluntary aspects of Ms. Williams' decision meant that she was under no court restrictions as to visitation or telephone contact and could remove her children at any time from foster care. Problems with the foster arrangement arose almost immediately. The protective services worker for the Williams', Kathy Perkins Guy, began receiving complaints about Ms. Lyons from Ms. Williams, the Williams children and counselors working with Ms. Williams in her drug treatment. One complaint by the Williams family against Ms. Lyons was that she was not permitting visitation as often as the Williams and HRS felt should be permitted. However, after complaints by Ms. Williams, the Williams' were satisfied with the frequency of visitation. On the other hand, HRS tried to show continued lack of cooperation by Ms. Lyons when Kathy Perkins Guy, the Williams' case worker, tried to arrange visitation on one particular Saturday, but Ms. Lyons told her that she had too many errands to run and it was not convenient. The inconvenience was legitimate because Ms. Lyons sister had died and she was taking care of the funeral arrangements. However, Ms. Lyons never communicated these facts to the HRS caseworker. It is important to note that Ms. Guy did not require Ms. Lyons to facilitate visitation in this instance. Ms. Guy only asked if Ms. Lyons would. Such "asking" by HRS leaves the clear impression that the licensee may decline the request without adverse impact on that person's foster license or future licensure. The incident does demonstrate poor communication by both HRS and Ms. Lyons. Additionally, Ms. Lyons also did not make arrangements for the Williams children to call their mother on a daily basis, but restricted them to one phone call two times a week. Ms. Williams deposition testimony indicated that the frequency of telephone calls was sufficient. Again, Ms. Guy had requested more frequent telephone contact. Ms. Lyons declined because getting through to the mother at the addiction center was difficult to arrange because of the center's restrictions on the mother. Again, HRS only asked for more frequent telephone contact. HRS did not require it. The clear impression to the licensee was that she could decline the request. Ms. Williams also complained that Ms. Lyons had cut her daughter Shykimma's hair without first consulting her. Such consultation with the parent is normally required by the Department. The children complained that they were not permitted to wear underwear while they slept at night and were not being allowed to sleep on pillows or use blankets. When questioned, Ms. Lyons stated that the children were placed in her home with very few clothes, and that she did not want to have to wash clothes every day. However, a foster parent is instructed to have spare clothing on hand or to be prepared to supply spare clothing. The Williams' felt they had adequate clothing but that their clothes often smelled bad the second day. As to the lack of pillows and blankets, she said that the kids did not need blankets because it was summer and the children did have sheets. She also said she did not want the children messing up her pillow shams but that they had other pillows to sleep with. The Williams' depositions demonstrated they had other pillows which they could use. The evidence also demonstrated that the children were dressed appropriately for bed since they slept in pajamas. In addition, Ms. Lyons made the children recite Bible verses as a punishment even though they were Muslim. On one occasion, Ms. Lyons had Rasheen recite a verse to Ms. Guy, which he interpreted to Ms. Guy to mean that he had to obey Ms. Lyons. Again the evidence regarding these incidents was vague and seemed to be engendered more by the Williams children's dislike of Ms. Lyons and anything she did, as well as a biological mother who was frantic over her children. Additionally, the evidence regarding the Bible verses was equivocal as to the appropriateness of such an action given the historical nature of the Muslim and Christian religions' roots in the Old Testament. Ms. Lyons also brought the children to work with her. At that time she was employed cleaning offices after hours, and she put the children to work cleaning toilets, sinks and vacuuming the floor. However, there was no convincing evidence that these activities were inappropriate in any way. On the other hand, Ms. Lyons called Rasheen "stupid." One of these name-callings escalated into an argument with Rasheen, which Ms. Lyons ended by calling a policeman friend of hers to talk to him about showing respect. Ms. Lyons did not intend this name to be abusive, but it was readily apparent that the children took the names as derogatory. The use of such references demonstrates poor judgment in caring for foster children. Ms. Lyons also had punished Shykimma for bedwetting by making her stay in her room for the rest of the day, which violates the disciplinary code for foster parents. Such punishment is a clear violation of HRS's disciplinary code for foster parents. Finally, Ms. Lyons spanked Rasheen with a flip-flop shoe for spilling rice on the floor. Again Ms. Lyons knew such discipline violated the HRS disciplinary code for foster parents. Additionally, Ms. Lyons had been warned earlier about using corporal punishment on a foster child when HRS had learned about Ms. Lyons slapping Dorinda Small. The Williams children were removed from Ms. Lyons home in August 1991. At that time, Sue Brown, supervisor of the foster care licensing unit went to Ms. Lyons' home to discuss with her the problems with the Williams' placement. During the discussion, Ms. Lyons admitted to punishing Shykimma for wetting the bed by making her stay in her room for 35 minutes. Ms. Brown pointed out that children are not to be punished for bedwetting problems, but Ms. Lyons had no response. Ms. Brown spoke to the Williams children after meeting with Ms. Lyons, and they expressed near hatred for Ms. Lyons. They said she was very demanding and that they never wanted to go back there. In this case, it is fairly apparent that HRS is tired of trying to work with Ms. Lyons as a foster parent and that in its attempt not to relicense her the Department listed every perceived "affront" of Ms. Lyons towards HRS. Most of these complaints were spurious and could not form the basis for an adverse licensure decision. However, HRS did succeed in demonstrating that Ms. Lyons committed at least three willful violations of the rules governing foster care parents. Those violations were punishment for bedwetting, name calling and two incidents of administering corporal punishment. Moreover, because these violations were willful and in disregard of the disciplinary rules of HRS of which Ms. Lyons had knowledge, Ms. Lyons is not qualified for licensure.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law it is therefore RECOMMENDED: that the Department deny Petitioner's application for relicensure as a foster home. DONE and ORDERED this 28th day of October, 1994, in Tallahassee, Florida. DIANNE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of October, 1994. APPENDIX 93-5975 The facts contained in paragraphs 1, 4, 8 and 22, of Petitioner's Findings of Fact are adopted in substance, insofar as material. The facts contained in paragraphs 2, 3, 5, 6, 7, 10, 11, 12, 13, 15, 16, 17, 18, 19, 20 and 21 of Petitioner's Proposed Findings of Fact are subordinate. The facts contained in paragraphs 9 and 14 of Petitioner's Proposed Findings of Fact were not shown by the evidence. The facts contained in paragraphs 1, 2, 5, 6, 7, 9 and 10 of Respondent's Proposed Findings of Fact are adopted in substance, in so far as material. The facts contained in paragraphs 3, 4, 8 and 11 of Respondent's Proposed Findings of Fact are subordinate. COPIES FURNISHED: Ann Corya Curvin, Esquire Assistant District Legal Counsel Department of Health and Rehabilitative Services 160 Governmental Center Pensacola, Florida 32501 Fredrick Gant, Esquire Allbritton & Gant 322 West Cervantes Street Pensacola, Florida 32501 Robert L. Powell, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, Florida 32399-0700 Kim Tucker General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, Florida 32399-0700
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 determinative issue in this cause is whether Petitioners "abused" and "neglected" foster children in their care, as those terms are defined in Sections 39.01(2) and 39.01(45), Florida Statutes (2000). As a result of the alleged abusive neglect, two subsequent issues are raised: (1) whether Petitioners' foster home license should be revoked for the reasons as stated in the Administrative Complaint dated July 20, 2001; and (2) whether Respondent's denial of Petitioners' requests to adopt the "M" sibling and to adopt the "T/S" sibling foster children, based primarily upon the allegations in the Administrative Compliant dated July 20, 2001, as explained in a denial letter dated January 18, 2002, was appropriate.
Findings Of Fact Based upon observation of the witnesses and their demeanor while testifying in person and by taped interviews, the documentary materials received in evidence, stipulations by the parties, evidentiary rulings during the final hearing, and the entire record compiled herein, the following relevant and material facts are found. At all times pertinent to the issues herein, Respondent, the Department of Children and Family Services, was the state agency responsible for receiving and approving applications for foster care licenses and for monitoring, regulating, and if necessary, suspending or revoking foster parent licenses pursuant to Section 409.175, Florida Statutes. At all times pertinent to the issues herein, Respondent, the Department of Children and Family Services, was the state agency responsible for receiving, evaluating, approving or denying applications for adoption of foster children pursuant to Section 63.062, Florida Statutes, and Chapter 65C-16, Florida Administrative Code. Petitioners' Foster Care Licensure History Petitioners are married and are the parents of two biological children. Mrs. Sawyer was reared with foster children and has always desired to become a foster parent. Petitioners were initially licensed by the Agency as foster parents in October of 1986, and six months later on April 20, 1987, Petitioners voluntarily closed their foster home due to Mrs. Sawyer's complications with the pregnancy of their second child. During the above six-month licensed period, Petitioners successfully fostered ten children, the last child was removed by the Agency from the foster home in March 1987. In December 1986, two months after initial licensing, Petitioners were the subject of an abuse report alleging spanking a child. The Agency's investigation concluded that the abuse report was "unfounded,"4 and closure was recommended by the Agency's investigator. On September 7, 1987, the Agency again licensed Petitioners as foster parents. Eight months thereafter, on May 23, 1988, the Agency again closed Petitioners' foster home. On August 10, 1988, three months later, the Agency, for the third time, licensed Petitioners as foster parents. Mrs. Sawyer acknowledged using corporal discipline on a foster child during the 1988 licensure period. As a result of the corporal punishment incident in 1988, the Agency required Petitioners to attended its Model Approach to Partnership in Parenting (MAPP) classes, which Petitioners attended and completed. The 1988 licensure of Petitioners as foster parents was specifically granted for the "T/S" sibling group who, with voluntary permission of their biological parents, had been living with Petitioners for approximately two months before their official placement with Petitioners by the Agency. Since 1988, the Agency has annually renewed Petitioners' foster care license.5 Responding to the requests of the Agency, Petitioners on occasions fostered as many as 16 to 20 foster children. Petitioners' foster home was frequently used by the Agency for unannounced "overnight" foster care, many of which extended into protracted foster care periods. During periods when the Agency's need for foster home beds was pressing, the Agency's rule-of-five was waived by the Agency's District Administrator so that Petitioners could and did house more children.6 The record reflects no evidence of complaints of abuse or any other complaints during the periods the Agency needed and made use of Petitioners' home to foster children. The evidence of record, viewed chronologically, reflects a protracted period of intense investigation of allegations which, if true, were apparently ongoing over a period of months prior to the filing of Abuse Report 2000-198255, the basis of the Agency's intended revocation of Petitioners' foster care license. Petitioners' latest license was issued on August 24, 2000, and was effective until August 24, 2001. This August 24, 2000, foster home license is the subject of the Agency's revocation notice, which states: The revocation is based on the following reasons: Between December 21, 2000 and March 1, 2001, the Department of Children and Families investigated eleven reports of abuse and neglect involving your home. In Florida Abuse Hotline Report 2000-198255[7] it was concluded that there were verified findings of excessive corporal punishment and confinement, bizarre punishment and excessive restraint committed by Cynthia Sawyer towards several foster children in her care. The report also noted several instances of inappropriate physical punishment, which is a violation of the foster parent disciplinary policy. These incidents are considered "an intentional or negligent act materially affecting the health and safety of children in the home or agency" and a violation of the licensing rules promulgated pursuant to section 409.175, Florida Statutes. Section 409.175(8)(b) 1 and 2 Florida Statutes; 65C- 13.010(1)(b)5 Florida Administrative Code. (emphasis added) The Agency's allegations of neglect and abuse revolved around four specific types of disciplinary activities that are alleged to have occurred on or after August 24, 2000, the date the current foster care license was issued, and to have terminated on or before March 1, 2001, the date the Agency removed children from Petitioners' home. The four specific types of disciplinary activities are: (1) excessive corporal punishment and confinement, (2) inappropriate physical punishment, (3) bizarre punishment, and (4) excessive restraints.8 In support of those allegations, the Agency presented the testimonies of several foster children, video- taped interviews of three foster children made in March 2001, approximately one month after removal from Petitioners' home; the testimony of another foster care parent; the testimony of a Guardian Ad Litem; and the testimonies of several of the Agency's employees. Mike Katz, agency employee, prepared the Administrative Complaint but had no personal knowledge of the abuse allegations contained in Abuse Report 2000-198255, which formed the basis for the Administrative Complaint he prepared. Mr. Katz acknowledged that his understanding of the Agency's practice and policy was that "one incident of corporal punishment" did not equate to foster care license revocation. According to Mr. Katz, evaluating corporal punishment allegations requires all factors be taken into consideration and the totality of circumstances be reviewed; the intended result is a fact specific determination for each case of alleged corporal punishment. Kate Kimball's, the Sawyers' family service counselor, testimony was primarily concerned with agency reports dating from December 3, 1996, through the year 2000. Her testimony regarding and relating to matters that occurred prior to December 21, 2000, are not relevant nor material to issues of foster home license denial as stated in the Administrative Complaint that is challenged by Petitioners. However, Ms. Kimball's testimony regarding the Sawyers' life-style during the period she was their case worker is relevant and material to the issue of denial of the Sawyers' application to adopt the "M" children. The record reflects that in 1999, while fostering the "T/S" and the "M" siblings under the Agency's District Administrator's waiver of the rule-of-five policy, Petitioners were given an "Above Satisfactory" evaluation by the assigned foster care case worker, Kim Bryant. Ms. Bryant reported that the Sawyers are "very involved, supportative of the children's extra curricular activities and educational needs; show children much needed attention and affection; children and foster parents seem very fond of each other and there is much improvement with the children educationally and emotionally and they appear to have adjusted well in the home." Ms. Bryant's report is undisputed and credible. One year later, Hotline Report 2000-078274 was filed containing an allegation of medical negligence against Mrs. Sawyer as a result of her attempt to refill a prescribed medication for a foster child in her care after the child had taken all the medication. In this particular instance, the Agency had failed to provided Mrs. Sawyer with the child's medical record when the child was placed in her foster home. This medical negligence allegation was resolved when the case worker assigned to the Sawyers secured from the child's file the physician's prescription refill order. The Hotline Report was closed by the Agency with "No indicators of alleged maltreatment-or abuse/neglect." On June 26, 2000, and after the Sawyers added separate bedrooms and bathrooms for the girls and separate bedrooms and bathrooms for the boys to their home to accommodate 16 children, their case worker, Ms. Kimball, wrote, "It appeared that the Department has continued to utilize their home, as we have had no alternatives." The home study case worker's comments are revealing and reliable. It is reasonable to infer that the Agency was satisfied with the Sawyers' methods of disciplining foster children in their home, when they met the Agency's need for foster beds. However, when the Agency's need for foster beds were apparently met by other resources their prior position of satisfaction with the Sawyers, for reasons not entirely clear from the record, took a sudden 180-degree turn-about from satisfaction to dissatisfaction, within a six-month time period from June 26, 2000, to December 21, 2000. The case worker assigned to the "M" children, Anjanet Stilwell, reported that the Sawyers' foster home was "a wonderful foster home--they were very cooperative and caring." Case worker, Karen Braden, who was in the home twice weekly regarding kids assigned to her, wrote, "Cindy is great! I have no concerns regarding placement of my kids. I truly don't know how she does it!" I find Ms. Stilwell's and Ms. Braden's opinions acceptable and reflective of the Agency's approved satisfactory view of the Sawyers as foster parents for many children who were housed solely by the Agency's waiver of its rule-of-five policy and for its benefit. One foster care referral report regarding the "T/S" children written by case worker Heather Blair was considered at the Adoption Applicant Review Committee (AARC) staffing. In her report, Ms. Blair summarized Psychologist Lisa Gaise's conclusions that: "3 T/S children reported being paddle [sic] and 'the context in which these clear disclosures were made was so natural as to dispel any questions of the veracity of their statements.'" Apparently the AARC staffing considered Ms. Gaise's comments credible in their decision to deny the adoption application. The fact of the matter is that Ms. Blair's statement regarding the "truth" and acceptance of Lisa Gaise's opinion that the child's statement were true, is not accepted for the truth asserted and, therefore, is not credible.9 Bobby Cooper, another agency witness, commenced his investigation of Abuse Report 2000-198255, on December 21, 2000, at 4:00 p.m. Mr. Cooper's investigation consisted entirely of reviewing reports of other agency investigators. Mr. Cooper had no personal knowledge nor had he personally sought independent collaboration of statements contained in the reports he reviewed. His testimony is not credible. Kate Kimball, the case worker assigned to Petitioners' foster home, often made announced and unannounced visits to Petitioners' foster home, as required by Agency policy. Ms. Kimball was in close and constant contact with the foster children and the foster parents during her visits to the home. Ms. Kimball was required to (1) observe the foster children, speak in confidence with each child individually, immediately report any "signs" of abuse or "suspected abuse," and to (4) cause "removal" of a child or children from abusive foster home situations. Ms. Kimball never requested nor caused removal of a child from Petitioners' foster home during the period of December 21, 2000, through March 2001, the period the abuse reports were allegedly "verified." Detective Christi Esquinaldo was assigned to investigate this case by Hillsborough County Sheriff's Department. Her investigation consisted of interviewing foster child L.S., reviewing the abuse reports, and creating a matrix from those reports. The matrix consisted of Detective Esquinaldo's listing the names of children who were alleged to have been subjected to a specific abusive discipline crossed referenced by the names of the children who made the allegations. According to Detective Esquinaldo, L.S. told her that the Sawyers "made children stand in a corner for three to four hours" as punishment, and Lil David was restrained to a chair for "three to four hours." However, during her testimony at the hearing, L.S. denied having made those statements to Detective Esquinaldo. L.S.'s testimony at the final hearing is credible. In closing her investigation, Detective Esquinaldo recommended to the State Attorney's Office the direct filing of a felony charge of Aggravated Child Abuse against the Sawyers. The Hillsborough County State Attorney's Office, citing "numerous inconsistencies in the statements of the children," declined to file any charges against the Sawyers and closed their files on the matter. After reviewing the children's testimonies of record, I am compelled to agree with the Hillsborough County State Attorney Office that the "inconsistencies of the statements of the children" render their collective testimonies unreliable and insufficient to provide a preponderance of evidence necessary to establish a fact. None of the adult witnesses, presented by the Agency, possessed knowledge acquired through collaboration of the children's stories from independent sources and/or their investigations regarding the abuse allegations alleged in the Complaint. The Agency's employees' initial and total acceptance of the children's recollection of time, i.e. as "all day" and "all night," should have, but did not raise reasonable concern regarding each child's ability to differentiate between fantasy and reality and the child's accuracy of recall as well. The children's story-line, that Petitioners forced each of them to walk, to stand in time-outs, to dig holes, to sleep in their beds or do any other activities "all day" or "all night," was testified to as a form of punishment and not discipline for acting up. Accepting as true, accurate, and realistic, their identical versions of four specific experiences from the several children without more does not equate to credible nor collaborative evidence. The testimonies presented by several foster children at this hearing were, at best, confusing, conflicting and contradictory. When asked specific questions about the several forms and methods of discipline, the unanimity of their responses were: stand in the corner "all night," dig holes "all day," walk in circles "all day," and sleep in the bed "all day." The fact that the children's testimonies clustered in a certain position (sibling groups wanting to stay together as a group and those sibling groups wanting to be moved to another foster home as a group gave almost identical answers to questions relating to specific disciplines) does not mean nor imply that their testimonies were necessarily accurate, realistic, or true. In fact, the record reflects that several of the testimonies initially given by the children to the Agency were in conflict with their testimonies subsequently given to the Agency representatives and testimony given at the final hearing. Considering the children's testimonies in the context of the children's ages; the children's physical sizes; the physical improbability of a small child actually squatting, with knees bent, against a wall with both arms held out in front of the body or held out to the sides of their bodies all day; and their description of time as "all day" and "all-night," rendered their collective testimonies unrealistic, unreliable and, therefore, not credible. Steve Barber, Petitioners' pastor and the one who has interfaced with the foster children, based upon his experience as a former high school football coach, gave undisputed testimony that the physical size and stature of the young children made it physically impossible for any of them to "stand, squat, dig or walk in circles, all day." Based upon the testimony of Mr. Barber and the unrealistic testimonies of the several children, Respondent has failed to prove that Petitioners committed "excesses" in administering policy discipline, by imposing time-outs, separation from other children, grounding, loss of privileges, and by assigning other chores. I find that the cumulative testimonies of the foster children found in the Agency reports in evidence and of those children who testified at the final hearing unreliable, inconsistent, devoid of details, physically impossible in most instances and, therefore, insufficient to establish by a preponderance that the Sawyers subjected them to: (1) excessive corporal punishment and confinement, (2) inappropriate physical punishment, (3) bizarre punishment, and (4) use of excessive restraints as punishment as alleged in the Administrative Complaint filed in this cause. Of the three video-taped interviews reviewed by the undersigned, the interview of D.I. revealed a reliable and detailed account of the daily life and activities of the foster children in the Sawyers' home from an articulate child with personal knowledge and accurate recall of events. First, D.I. was in the Sawyers' foster care for a period of seven months. Second, D.I. appeared to be bright, intelligent, articulate, straight-forward, and he was definite and clear in his responses to questions asked by the Agency's spokesperson. Third, D.I.'s memory of details was complete, uncompromising, realistic, and reasonable. Fourth, D.I. acknowledged that his possibility of being reunited with his biological mother was nonexistent, and he would probably be in foster care until his majority, if not adopted, preferably by the Sawyers. Fifth, he is familiar with and aware of foster children, individually and as sibling groups "working the foster care system for their desired ends by telling stories." During his seven months' stay in foster care with the Sawyers, D.I. testified that he never saw nor was he made aware by other children of any child punished by the Sawyers in the form of being forced to stand in time-out "all day," forced to dig holes "all night," or forced to walk in circles "all day." D.I. knew that Lil L.S. pooped in her pants and smeared the poop over the walls of the foster care residence. He knows this because he was one of the older children who volunteered to clean the poop off the walls; he remembers these incidents because the walls had "white spots" where the cleaning solutions were used. He also remembered because Mrs. Sawyer would put white powder on the bedroom floor leading from Lil L.S.'s room to other parts of the house. In the morning when Lil L.S. was awaken and asked about poop on the walls, she would blame other children, but her foot prints would prove contradiction of the story of not having gotten out of bed during the night. According to D.I., Lil L.S. was never "hosed down outside" the house after pooping on herself. Each time Lil L.S. pooped on herself, Mrs. Cindy would require her to go into her bathroom10 and bathe herself. When asked about household chores and work around the house as a form of punishment, D.I. answered that older children would be offered the opportunity to "work outside" with Mr. Sawyer on "things around the house," only if that child wanted to work outside. If not, the child was given the option to stay outside and play or to go inside and watch T.V., play games, or do other things. D.I. was emphatic that the opportunity to do other things was made available to each child only after that child completed his or her homework. Homework was always first, and some children got in trouble because of not doing or completing their homework. According to D.I., the younger children who played outside would customarily play in the round-about driveway, the yard, and on the Jungle Jim play set. The older children would customarily do other things. D.I.'s examples of "doing things around the house" were: helping Mr. Sawyer work on his truck; putting together and/or repairing the Jungle Jim swing-slide play set; helping to dig a trench line to lay pipe for the new water heater connection; tending to and caring for the animals; planting trees and stuff; and painting and building additional bathrooms and bedrooms onto the house. According to D.I., all outside activities were made available to any children who wished to participate in them instead of playing among themselves. When asked, D.I. was empathic in his answer that no child, "as a form of punishment," was forced to assist Mr. Sawyer in "doing things around the house," if they wanted to help they could, if not, then other activities were available and that no child was handcuffed nor had he seen any (metal) handcuffs at the Sawyers' house, save his pair of red plastic toy handcuffs that came with a toy set the Sawyers gave him. D.I., from observation, knew Lil David to be self-mutilating.11 D.I. recalls that "Lil David would sometimes just pick himself to make himself bleed." During his seven-month stay and on more than one occasion, in passing, D.I. would see Lil David in bed at night with velcro restraints on his wrists and the bed to stop him from picking himself and making himself bleed. "Mrs. Cindy did this to keep Lil David from picking himself when he was asleep."12 Regarding meal times and meals at Mrs. Cindy's, D.I. stated that all the children ate the same meal at the same time "cause there was so many of us and Mrs. Cindy had no time for separate meals and we [older children] helped to feed the young children, we did help." When asked about peanut butter sandwiches as a form of punishment, D.I. responded, "Those children who had been bad or were in time-out at mealtime were separated from the other children and given peanut butter sandwiches to eat while in their time-outs. But Mrs. Cindy would say to them 'say you are sorry and you can join us.'" He never saw nor knew of a child in time-out (against the wall) for "hours." The longest time-out he could recall was about "20 minutes," and that was because the child was "acting up" in the time-out and had additional time added to the time-out. D.I. was familiar with the "T/S" and (other) siblings. He knew from personal experience in foster care that older siblings would instruct their younger siblings on all matters: what to say, when to say it, how to act, and how to act up. D.I. was personally familiar with "foster homes" and the means and methods of "getting out of one" and "staying together" as a sibling group and getting into another as a group. When asked about "corporal punishment" i.e. spanking with a wooden paddle and/or slapping with hands, D.I. testified that during his seven-month stay, he knew of no child to have gotten spanked with a wood paddle. "I never saw a wood paddle." Regarding "getting slapped by Mrs. Cindy" as punishment, D.I. answered that Ms. Cindy would "tap" you on the back of the head, butt, or shoulder "to get your attention, like if she was talking to you and you were watching T.V. and not answering her but she never slapped any of us for punishment." This method of getting one child's attention by touching is reasonable when considered in the context of the Agency's waiver of its rule-of- five policy so as to place as many as 16 to 20 children in the Sawyers' foster care home. 13 The video testimony of D.I. is accurate, detailed, reasonable, realistic, based upon his personal knowledge, undisputed and, therefore, credible. Based in part upon the video testimony of D.I., Respondent has failed to establish by a preponderance of evidence that the Sawyers subjected a foster child in their care to: (1) excessive corporal punishment and confinement, (2) inappropriate physical punishment, (3) bizarre punishment, and (4) use of excessive restraints for the time period alleged in the Administrative Complaint. The Sawyers' admitted use of velcro restraints on Lil David was neither excessive, punitive nor disciplinary, but rather was for Lil David's protection from harming himself. The Sawyers' used velcro restraints on Lil David during the day only when he was in time-out and sitting in a small rocking chair and during the night when he was put to bed. The evidence of record by testimonies of virtually every witnesses who knew Lil David knew him to be a self-mutilator. The use of restraints is an acceptable, preventative method for protection in this situation. The record contains no evidence that the Agency provided the Sawyers with an evaluation report of Lil David upon his placement nor during his stay within their foster home. Lil David's medical report would have advised the Sawyers of Lil David's self-mutilation problem. It is a reasonable assumption that had the Agency provided Lil David's medical records, the Sawyers would have been alerted to Lil David's self-mutilation problem and would have had the benefit of the Agency's instructions regarding care and protection for Lil David's problem of self-mutilation. The Sawyers' admitted use of velcro restraints reflects a caring and sincere effort of the foster parents to protect the child from hurting himself. In the absence of information from the Agency regarding Lil David's condition, the Sawyers' use of an acceptable, safe and preventative method of care for this particular problem reflects their efforts to comply with the "spirit" of the rules regarding foster parent responsibilities. The record contains no evidence that the Sawyers' use of velcro restraints to prevent Lil David's self- mutilation was "willfully harmful" or "neglect" or an "abusive" act of intentional punishment. Bobby Cooper's, child protection investigator, reported findings and conclusions were based entirely upon statements provided by individuals he interviewed. The record contains no evidence of collaboration to substantiate testimonies of the children. Therefore, Mr. Cooper's testimony is hearsay without support and therefore, not credible. Finally, consideration is given to what is not in evidence. First, the record in this case contains no evidence of a child alleged to have suffered ongoing neglect and abuse in the form of excessive, bizarre,14 and inappropriate punishment, or to have borne body marks or bruises resulting from the alleged treatment by the Sawyers. Second, the record in this case contains no evidence of a Sawyer-housed foster child to have suffered "physical, mental or emotional injury" as the result of the alleged negligent and abusive treatment. Third, the record contains no evidence from which it could be inferred that a foster child removed from Petitioners' home suffered a "discernible and substantial impairment in the ability to function within the normal range of performance and behavior" as a direct result of the alleged abusive discipline.15 The evidence of record supports a reasonable conclusion that Mrs. Sawyer was proactive in seeking the assistance of local politicians and state officials to accomplish her apparent goal of responsive and exceptional services from the Department for her foster children. It is undisputed that the Sawyers, with the advice and consent of the Department, had more foster children than was reasonable to expect only two adults to provide a minimal of custodial care. Permitting the Sawyers to house as many as 16 to 20 foster children, plus their two biological children, at any point in time, was permissive and self serving by the Department and was overreaching acceptance by the Sawyers. It is a reasonable inference that in this case both the Department and the Sawyers engaged in a mutual course of conduct to satisfy their respective needs and desires. When the mutually beneficial relationship came to a close, a reversal of opinions and recommendations from the Department regarding the Sawyers occurred. The Sawyers, who had been described by the Department as "unbelievable foster parents," became merely unbelievable when confronted with and evaluated by conflicting stories of 14 foster children removed from their home. Denial of Adoption Application for the M sibling group Turning to evidence in the record regarding the denial of Petitioners' application to adopt the four "M" siblings, the fact that some animosity existed between Ms. Gains16 and Mrs. Sawyer, became readily apparent during Ms. Gains' testimony. The existence of animosity was further confirmed by Ms. Gains' detailed chronology of alleged abusive acts and omissions by Mrs. Sawyer over a period in excess of one year. When answering questions asked by the Agency's representative regarding Ms. Gains' statements and opinion of Mrs. Sawyer, D.I. answered: "She [sic] said handcuffs and other things about Mrs. Cindy so as to get kids moved out of Mrs. Cindy's house to her house." Based upon D.I. testimony above, Ms. Gains' testimony given at the hearing and her written report in evidence is biased and unreliable. In the evaluation and review of Petitioners' adoption request, Respondent appropriately engaged in a holistic evaluation of all abuse reports filed, investigative reports, personal opinions, and comments from Department employees, community members and other foster parents, dating from as early as 1986 to the date of the adoption denial. Respondent, in reevaluation of Petitioners' adoption request for the "M" children, should hereinafter be guided by the Findings of Fact herein that allegations of excessive discipline as contained in the Administrative Compliant herein were not proven by the testimonies of the Agency's witnesses and documentary evidence. Therefore, allegations found in Abuse Report 2000-198255 reported or alleged to have occurred within the time period of December 21, 2000, through March 1, 2001, shall not be considered by the Agency in its reevaluation of the Sawyers' application to adopt the "M" siblings; being mindful that the "M" siblings' desire to be adopted by the Sawyers is in the "M" child(ren)'s best interest.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order granting renewal of Petitioners' Foster Care License. It is further RECOMMENDED, that in accord with the expressed desires of the "M" siblings to be adopted by Petitioners, that the Department enter a final order granting Petitioners' application to adopt the "M" siblings. DONE AND ENTERED this 13th day of November, 2002, in Tallahassee, Leon County, Florida. FRED L. BUCKINE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of November, 2002.
The Issue Should Respondent's family foster home license be revoked, suspended, or otherwise disciplined based on the facts alleged in the Notice of Denial dated August 27, 1998, as amended?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Department is the agency of the State of Florida charged with the responsibility of licensing family foster homes and administering the foster care program as it relates to family foster homes, such as providing foster care supervision and services. On June 16, 1997, Kristie and Robert Huggins (Huggins) of 1403 Chamberlain Loop, Lake Wales, Polk County, Florida, were issued a Certificate of License by the Department to operate a family foster home for children. Subsequently, the Department placed foster care children in the Huggins' home. At all times pertinent to this proceeding, the Department had the children A.M., born December 29, 1996, L.M., born September 30, 1995, and A.C., born October 22, 1996, placed in the Huggins' home. The Notice of Denial dated August 27, 1998, provides in pertinent part as follows: . This letter provides notice that your license as a foster home is revoked based on Section 409.175(8), Florida Statutes, and Rule 65C- 13.001, Florida Administrative Code (F.A.C.). The reasons for the revocation are as follows: Vickie Barron, of Nurturing Families Project, Evelyn Liamison [sic], Guardian Ad Litem, and Family Service Counselors Patrice Thigpen and Desiree Smith noted as to Mrs. Huggins' "possessiveness" of the children toward the birth parents. The children were known in the Busy Bee Preschool as the "Huggins Children." The children's belongings were marked as "Huggins." These actions violate Rule 65C-13.010(1)(b)(1)(c)(F.A.C.), which states that substitute care parents are expected to help children in their care to maintain a sense of their past and record of their present. Bruises and other injuries noted by Vickie Barron of Nurturing Families Project, Evelyn Liamison [sic], Guardian Ad Litem, and the birth parents. The Busy Bee Preschool also noted bruises and various injuries to the three children on 2/13/98, 2/26/98, 3/2/98. 3/16/98, and 3/23/98. While they resided in the Huggins' home. Since the children have moved from the home, these types of injuries are not occurring. Rule 65C-13.009(e)(10) (F.A.C.), require that foster parents must be able to provide a healthy and safe environment for children and youth and keep them from harm. You have failed to comply with this rule. Desiree Smith, Family Service Counselor, noted that on 3/12/98, when Mrs. Huggins was questioned about a bruise on a male foster child, she told Desiree Smith that the bruise occurred at the daycare. The daycare notes reflected that Mrs. Huggins told the daycare that the bruise was received at the doctor's office. This violates Rule 65C- 13.010(4)(1)(F.A.C.), which states that the substitute care parents must notify the department immediately of illness or accidents involving the child. You did not notify the department when you and Mr. Huggins separated. This violates Rule 65C-13.010(4)(g), which states substitute care parents must notify the department regarding changes which affect the life and circumstances of the foster family. Your violation of the above mentioned Administrative Rules created an unsafe environment for foster children. Section 409.175(8)(b)1, Florida Statutes. At the beginning of the hearing, the Department made an ore tenus motion to amend certain rule citations in the Notice of Denial. The motion was granted and the citations to Rules 65C-13.010(1)(b)(1)(c)(F.A.C.); 65C-13.009(e)(10)(F.A.C.); 65C-13.010(4)(1)(F.A.C.); and 65C-13.0010(4)(g)(F.A.C.) were amended to read as follows: Rules 65C-13.010(1)(b)1.c.; 65C-13.009(1)(e)10.; 65C-13.010(4)(j); and 65C-13.010(4)(g), Florida Administrative Code, respectively. Respondent was a very loving, caring and affectionate foster parent and expressed her love, care, and affection with L.M., A. M., and A.C. both in and out of the foster home. From the very beginning, Respondent understood that the ultimate goal for L.M. and A.M. was reunification with their biological parents. At some point in time after A.C. was placed in foster care with Respondent, she expressed a desire to adopt A.C. At this time, Respondent understood (mistakenly) that the goal was to terminate the parental rights of A.C.'s biological parents. However, the Department's goal was for reunification and not termination of parental rights. In fact, it is not unusual for foster parents to adopt a child placed in their care when and if the Department terminates the parental rights of the biological parents and offers the child for adoption. Upon learning of the Department's goal of reunification for A.C., Respondent did not pursue the issue of adoption of A.C. Apparently, Vicky Barron and, to some degree, Evelyn Lamison misunderstood Respondent's love, care, and affection for these children as possessive and interfering with the goal of reunification. Vicky Barron is employed by Regency Medical Center, Winter Haven, Florida, supervising the Nurturing Families Program. Evelyn Lamison is the guardian ad litem for L.M. and A.M. Patricia Bryant, Family Service Counselor with the Department, described Respondent as being over-protective but did not see Respondent's love, care, and affection for the children as being an attempt to undermine the goal of reunification. Respondent enrolled L.M., A.M., and A.C., in the Busy Bee Preschool. At the Busy Bee Preschool, the children were at times referred to as the "Huggins" children. However, there was no attempt by Respondent or her husband to conceal the fact that the children were their foster children. They were enrolled under their biological parents' name. Some of their belongings were marked "Huggins" and some of the belongings were marked in the child's given name. The marking of the children's belongings was for the convenience of the Busy Bee Preschool and not intended as a means to deprive the children of sense of their past or present. Although there may have been some hostility on the part of both the Respondent and the biological parents of the children, there was insufficient evidence to show that Respondent, either intentionally or unintentionally, attempted to interfere, sabotage, or prevent the ultimate goal of reunification of the children with the biological parents, notwithstanding the testimony of Vicky Barron and Evelyn Lamison to the contrary, which I find lacks credibility. Without question, there were bruises, scratches and bug bites on L.M., A.M., and A.C. during their stay at Respondent's foster home. Some of these scratches and bruises occurred in and around Respondent's home, some of them occurred at the Busy Bee Preschool. On at least one occasion (March 12, 1998) A.C. fell while in the doctor's office and bruised his face. This bruise was noted in the Busy Bee Preschool notes, as were other scratches and bruises to the children received at home or at the Busy Bee Preschool. The incident of March 12, 1998, was documented by the doctor's office. In fact, it became the basis of an abuse report filed against Respondent which was determined to be unfounded. This alleged abuse was not reported until June 4, 1998. There is no evidence to support the allegation that Respondent told Desiree Smith that the bruise to A.C.'s face which occurred at the doctor's office occurred at the Busy Bee Preschool. Another abuse report was filed against Respondent concerning L.M. and A.M. on March 24, 1998, which was closed as unfounded. Vicky Barron testified that she was the reporter in both abuse reports. She also testified that she disagreed with the Child Protective Investigator's finding that there was no evidence of abuse. Her disagreement was such that she contacted the Investigator's supervisor in an attempt to have the finding reversed. Based on the testimony of the Department personnel and the Busy Bee Preschool personnel who testified at the hearing, it is clear that these bruises, scratches, and bug bites were no more or no less severe than bruises, scratches, and bug bites experienced by other active children the age of L.M., A.M., and A.C., notwithstanding the testimony of Vicky Barron and, to some degree, Evelyn Lamison to the contrary, which I find lacks credibility. Although there is no allegation concerning the Respondent's home, it is clear that Respondent kept her home neat, clean, and safe (although there was some clutter at times). However, when a matter concerning the children's safety was brought to Respondent's attention it was corrected. There is insufficient evidence to show that Respondent failed to provide a healthy and safe environment for L.M., A.M., and A.C. and to keep them from harm. While there may have been problems between Kristie Huggins and Eric Huggins, Kristie Huggins did not anticipate a separation until April 23, 1998, when Eric Huggins failed to return home after his trip out of town. Through Patty Fazzino, Respondent advised the Department's office in Tallahassee, Florida, of the separation. Subsequently, the Department's Tallahassee office advised the Lakeland office. Although Respondent did not directly notify the Department's local foster care licensing personnel, the Respondent did not intentionally or unintentionally fail to notify the Department of her separation from Eric Huggins. Likewise, Respondent did not fail to immediately notify the Department of any illness or accidents concerning L.M., A.M., and A.C. which required department notification. It appears from the testimony of Mary Jordan that Respondent has completed the necessary hours of training for relicensure but would need to complete some paper work.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Children and Family Services enter a final order granting Respondent Kristie (Huggins) Pfingston her family foster care license. DONE AND ENTERED this 2nd day of April, 1999, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of April, 1999. COPIES FURNISHED: Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John S. Slye, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Jack Emory Farley, Esquire Department of Children and Family Services 4720 Old Highway 37 Lakeland, Florida 33813-2030 Raymond A. Goodwill, Jr., Esquire 107 Avenue A, Northwest Post Office Box 2334 Winter Haven, Florida 33883
The Issue The issue is this case is whether revocation of Respondent's Foster Care license privilege for his past and present conduct, determined by the Department of Children and Family Services (hereinafter Agency) to be inappropriate, was proper under Section 409.175, Florida Statutes.
Findings Of Fact Under Section 409.175, Florida Statutes, the Department of Children and Family Services is the State Agency responsible for evaluating, qualifying, licensing, and regulating family foster care homes. On or about November 5, 1999, the Agency, after Mr. Thibodeau's successful completion of the Agency's evaluation and qualifying procedures, determined Mr. Thibodeau to be of good moral character. At all times material to the application process, Mr. Thibodeau answered completely and truthfully each question contained on each standard application form and other documents presented to him by the Agency during the foster care home application process. Based upon its determination, the Agency granted Provisional Certificate of License, No. 1999-110-002, for Substitute Family Home care privilege to Mr. Thibodeau. Thereafter, the Agency placed three minor children in Mr. Thibodeau's home: two teenaged brothers, David M. and Daniel M., and seven-year-old Steve. After an unspecified period of time together, bonding began to develop between the brothers, Daniel and David, and Mr. Thibodeau. As a result of a mutual agreement, Mr. Thibodeau submitted an adoption application to the Agency to become the adoptive parent of the brothers David M. and Daniel M. At all times pertinent hereto, Mr. Thibodeau answered completely and truthfully each question contained in the standard application forms and other documents presented to him by the Agency during the adoption application process. Ms. Georgia Alezras, trainer for the Model Approach to Partnership in Parenting (MAPP) classes and Mr. Kelvin Birdsell, family therapist and continuity specialist, made a home-study visit to the Thibodeau residence at some time between early July and August 15, 2000. Mr. Birdsell testified that he confined his conversations to the brothers, David M. and Daniel M. during the visit. Mr. Birdsell further testified that his conversations with the brothers were separate and away from the presence and hearing of Ms. Alezras and Mr. Thibodeau, who conversed privately. On July 26, 2000, after Mr. Thibodeau submitted his adoption application, and after the home study visit by Ms. Alezras, the Agency received a confidential telephonic abuse report, Petitioner's exhibit number one.1 The abuse report contains an interpolation of the private conversation between Ms. Alezras and Mr. Thibodeau during the earlier home-study visit. Ms. Carolyn Olsen, Family Counselor Supervisor, testified that Ms. Georgia Alezras reported her private conversation with Mr. Thibodeau to her Agency supervisors. The Agency's interpolation of the Alezras-Thibodeau conversation formed the factual allegations contained in the Agency's August 18, 2000, revocation letter. Sergeant Hagerty, Pasco County Sheriff's Office, testified that she and Sergeant O'Conner investigated the abuse allegations, consisting solely of the Agency's interpolation of Ms. Alezras' earlier and prior conversation with Mr. Thibodeau, by checking with authorities in Washington and checking with the National Criminal Information Center (NCIC) with negative results. The removal of the children from Mr. Thibodeau's home was based upon a joint decision to be safe and take a preventative approach in this matter. Petitioner's exhibit number two, a composite of eight letters, contained a "Closing of Foster Home For Children" report form, with a "foster home closing date" of August 18, 2000, and the caseworker and supervisor's signature on the date of August 22, 2000. The report, under "reason for closing" heading, contains the following comments: [H]is license was revoked because he recently divulged information about his past, that, had we known these facts prior to licensing, would have disqualified him to act as a foster parent---namely, he stated that some years ago he left the state of Washington with an unrelated male child without parental or state permission and lived with him for years under false identification. Ms. Georgia Alezras did not testify. Mr. Thibodeau's testimony is the only evidence of the private conversation with Ms. Alezras. Mr. Thibodeau's recollection of his responses to Ms. Alezras' questions was: [I]n 1975 he moved to the State of Washington; in 1976-77 he met Daniel L.; in 1976-77 he left the State of Washington and moved with Daniel to Pennsylvania where Daniel enrolled in school using his Washington school records; Daniel's mother visited them in Pennsylvania and maintained contact by telephone; Daniel, at age nineteen returned to Washington. He used a friend's birth certificate to secure his Pennsylvania driver's license. His video business2 considerations were subsequently dismissed and he advised the Agency of his decision by letter to his caseworker. Ms. Carolyn Olsen, Agency Representative, testified that one member of every MAPP team always asks a general, catchall question of every [foster care parent] applicant: "Is there anything else we need to know [about you], please tell us, [because] we will probably find out?" Ms. Olsen's candor and purpose comes into question on this point. She was not present during the Alezras-Thibodeau private conversation. Ms. Olsen does not know the identity of the team member who would have asked her catchall question nor does she know of a rule, guideline, or checklist requiring that specific question to be asked of every foster care license applicant, and there was no corroboration of her testimony. The Agency presented no evidence in support of its allegation that during the application process, its failure to inquire and Mr. Thibodeau's failure to disclose activities 20 years earlier in his life resulted from negligence or from the malicious intent of Mr. Thibodeau, and materially affect the health and safety of the minor children in his foster care. The Agency has failed to establish that Mr. Thibodeau left Washington with an unrelated minor child without parental consent and obtained false identification for the child. While it is true that Mr. Thibodeau "left Washington with an unrelated minor child," the Agency produced no evidence that his leaving was "without [minor child's] parental consent." Agency's investigators were unable to make contact with either the child or his mother. No investigation was made of the State of Washington's Motor Vehicle Department. No contact was made with the Pennsylvania authorities. Assuming argunendo, the Agency intended upon establishing this element by "an admission by Mr. Thibodeau"; they presented no evidence Mr. Thibodeau, in fact, uttered words to the effect of or acknowledged the comment "without parental consent." The undisputed evidence is Mr. Thibodeau's testimony that the minor child's mother not only approved of the child leaving Washington with him, but she also visited them in Pennsylvania and had telephone conversations with her child during his stay there. On this issue the Agency failed to carry its burden by clear and convincing evidence. Mr. Thibodeau admitted his use of another's birth certificate to secure a Pennsylvania driver's license more than 20 years ago. Since that time, Mr. Thibodeau's conduct, foster care parenting skills, helping problem young boys, and good moral conduct has been, as testified by the several witnesses, exemplary.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services enter a final order reinstating to Stanley Thibodeau his foster care home license privilege. DONE AND ENTERED 21st day of March, 2001, in Tallahassee, Leon County, Florida. FRED L. BUCKINE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of March, 2001.
