The Issue The issue is this case is whether revocation of Respondent's Foster Care license privilege for his past and present conduct, determined by the Department of Children and Family Services (hereinafter Agency) to be inappropriate, was proper under Section 409.175, Florida Statutes.
Findings Of Fact Under Section 409.175, Florida Statutes, the Department of Children and Family Services is the State Agency responsible for evaluating, qualifying, licensing, and regulating family foster care homes. On or about November 5, 1999, the Agency, after Mr. Thibodeau's successful completion of the Agency's evaluation and qualifying procedures, determined Mr. Thibodeau to be of good moral character. At all times material to the application process, Mr. Thibodeau answered completely and truthfully each question contained on each standard application form and other documents presented to him by the Agency during the foster care home application process. Based upon its determination, the Agency granted Provisional Certificate of License, No. 1999-110-002, for Substitute Family Home care privilege to Mr. Thibodeau. Thereafter, the Agency placed three minor children in Mr. Thibodeau's home: two teenaged brothers, David M. and Daniel M., and seven-year-old Steve. After an unspecified period of time together, bonding began to develop between the brothers, Daniel and David, and Mr. Thibodeau. As a result of a mutual agreement, Mr. Thibodeau submitted an adoption application to the Agency to become the adoptive parent of the brothers David M. and Daniel M. At all times pertinent hereto, Mr. Thibodeau answered completely and truthfully each question contained in the standard application forms and other documents presented to him by the Agency during the adoption application process. Ms. Georgia Alezras, trainer for the Model Approach to Partnership in Parenting (MAPP) classes and Mr. Kelvin Birdsell, family therapist and continuity specialist, made a home-study visit to the Thibodeau residence at some time between early July and August 15, 2000. Mr. Birdsell testified that he confined his conversations to the brothers, David M. and Daniel M. during the visit. Mr. Birdsell further testified that his conversations with the brothers were separate and away from the presence and hearing of Ms. Alezras and Mr. Thibodeau, who conversed privately. On July 26, 2000, after Mr. Thibodeau submitted his adoption application, and after the home study visit by Ms. Alezras, the Agency received a confidential telephonic abuse report, Petitioner's exhibit number one.1 The abuse report contains an interpolation of the private conversation between Ms. Alezras and Mr. Thibodeau during the earlier home-study visit. Ms. Carolyn Olsen, Family Counselor Supervisor, testified that Ms. Georgia Alezras reported her private conversation with Mr. Thibodeau to her Agency supervisors. The Agency's interpolation of the Alezras-Thibodeau conversation formed the factual allegations contained in the Agency's August 18, 2000, revocation letter. Sergeant Hagerty, Pasco County Sheriff's Office, testified that she and Sergeant O'Conner investigated the abuse allegations, consisting solely of the Agency's interpolation of Ms. Alezras' earlier and prior conversation with Mr. Thibodeau, by checking with authorities in Washington and checking with the National Criminal Information Center (NCIC) with negative results. The removal of the children from Mr. Thibodeau's home was based upon a joint decision to be safe and take a preventative approach in this matter. Petitioner's exhibit number two, a composite of eight letters, contained a "Closing of Foster Home For Children" report form, with a "foster home closing date" of August 18, 2000, and the caseworker and supervisor's signature on the date of August 22, 2000. The report, under "reason for closing" heading, contains the following comments: [H]is license was revoked because he recently divulged information about his past, that, had we known these facts prior to licensing, would have disqualified him to act as a foster parent---namely, he stated that some years ago he left the state of Washington with an unrelated male child without parental or state permission and lived with him for years under false identification. Ms. Georgia Alezras did not testify. Mr. Thibodeau's testimony is the only evidence of the private conversation with Ms. Alezras. Mr. Thibodeau's recollection of his responses to Ms. Alezras' questions was: [I]n 1975 he moved to the State of Washington; in 1976-77 he met Daniel L.; in 1976-77 he left the State of Washington and moved with Daniel to Pennsylvania where Daniel enrolled in school using his Washington school records; Daniel's mother visited them in Pennsylvania and maintained contact by telephone; Daniel, at age nineteen returned to Washington. He used a friend's birth certificate to secure his Pennsylvania driver's license. His video business2 considerations were subsequently dismissed and he advised the Agency of his decision by letter to his caseworker. Ms. Carolyn Olsen, Agency Representative, testified that one member of every MAPP team always asks a general, catchall question of every [foster care parent] applicant: "Is there anything else we need to know [about you], please tell us, [because] we will probably find out?" Ms. Olsen's candor and purpose comes into question on this point. She was not present during the Alezras-Thibodeau private conversation. Ms. Olsen does not know the identity of the team member who would have asked her catchall question nor does she know of a rule, guideline, or checklist requiring that specific question to be asked of every foster care license applicant, and there was no corroboration of her testimony. The Agency presented no evidence in support of its allegation that during the application process, its failure to inquire and Mr. Thibodeau's failure to disclose activities 20 years earlier in his life resulted from negligence or from the malicious intent of Mr. Thibodeau, and materially affect the health and safety of the minor children in his foster care. The Agency has failed to establish that Mr. Thibodeau left Washington with an unrelated minor child without parental consent and obtained false identification for the child. While it is true that Mr. Thibodeau "left Washington with an unrelated minor child," the Agency produced no evidence that his leaving was "without [minor child's] parental consent." Agency's investigators were unable to make contact with either the child or his mother. No investigation was made of the State of Washington's Motor Vehicle Department. No contact was made with the Pennsylvania authorities. Assuming argunendo, the Agency intended upon establishing this element by "an admission by Mr. Thibodeau"; they presented no evidence Mr. Thibodeau, in fact, uttered words to the effect of or acknowledged the comment "without parental consent." The undisputed evidence is Mr. Thibodeau's testimony that the minor child's mother not only approved of the child leaving Washington with him, but she also visited them in Pennsylvania and had telephone conversations with her child during his stay there. On this issue the Agency failed to carry its burden by clear and convincing evidence. Mr. Thibodeau admitted his use of another's birth certificate to secure a Pennsylvania driver's license more than 20 years ago. Since that time, Mr. Thibodeau's conduct, foster care parenting skills, helping problem young boys, and good moral conduct has been, as testified by the several witnesses, exemplary.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services enter a final order reinstating to Stanley Thibodeau his foster care home license privilege. DONE AND ENTERED 21st day of March, 2001, in Tallahassee, Leon County, Florida. FRED L. BUCKINE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of March, 2001.
The Issue 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 As originally framed, the issue was whether respondents' foster home license should be revoked for alleged failure to cooperate with HRS policy and personnel.
Findings Of Fact As part of the settlement agreement, HRS abandoned any effort to prove the factual allegations which gave rise to these proceedings.
Recommendation It is, accordingly, RECOMMENDED: That HRS enter a final order rescinding its letter of July 10, 1991, to Mr. and Mrs. William Scarff, with the understandings and conditions recited above. DONE and ENTERED this 23 day of January, 1992, in Tallahassee, Florida. COPIES FURNISHED: Ralph J. McMurphy, Esquire 1000 NE 16th Avenue Gainesville, FL 32609 William and Mary Scarff 8281 Weeping Willow Street Brooksville, FL 34613 ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23 day of January, 1992. John Slye, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, FL 32399-0700 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, FL 32399-0700
The Issue The issue in this case is whether Respondent should deny Petitioners' application for a license to provide foster home care for dependent children pursuant to Section 409.175, Florida Statutes (1999). (All statutory references are to Florida Statutes (1999) unless otherwise stated.)
Findings Of Fact Respondent is the state agency responsible for licensing and regulating foster care in the state. Petitioners were foster care parents until October 5, 2000, when Petitioners voluntarily surrendered their foster care license for medical reasons. Prior to October 5, 2000, Mrs. Williams suffered from high blood pressure and dizziness. She was physically unable to care for foster children and asked that Respondent remove all foster children from her home. Before her medical problems began, Mrs. Williams complained to Respondent that she could not provide foster care for children with behavior problems. Mrs. Williams asked Respondent to remove certain children from her home because they presented behavioral problems with which she could not cope. In March of 2001, Petitioners applied for a new license to provide foster care. Petitioners did not provide any medical evidence, during the hearing or the application process, that Mrs. Williams has recovered from her medical problems. Her medical problems have a long medical history and come and go each year. Mrs. Williams is 62 years old. On the family profile sheet filed with Respondent, Mrs. Williams lists her occupation as "disabled."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order denying Petitioners' application for a license to provide foster care to dependent children. DONE AND ENTERED this 31st day of October, 2001, in Tallahassee, Leon County, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 2001. COPIES FURNISHED: Virginia A. Daire, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Wilbert and Estella Williams 412 Pine Avenue Sanford, Florida 32771 Craig A. McCarthy, Esquire Department of Children and Family Services, District 7 400 West Robinson Street Orlando, Florida 32801
The Issue Whether Petitioner’s application for licensure as a family foster home should be granted.
Findings Of Fact Sometime around 2004, Petitioner held a license as a foster home in Florida. During the licensure period, Petitioner fostered X. B. and T. T. in her home where she resided with her three biological children. X. B. stayed in Petitioner's home for approximately three weeks to a month. Throughout X. B.'s stay, Petitioner failed to provide breakfast to X. B. prior to school. Petitioner's failure necessitated the case manager providing such breakfast to X. B. when she drove X. B. to school. Additionally, on several occasions the case manager saw evidence of roach infestation in the home. In particular, upon X. B.'s return to Petitioner's home from visiting X. B.'s siblings, the case manager found him in a roach-infested environment, with no running water in the home since the service had been turned off by the service provider for non-payment of the bill. The toilet bowl was filled with feces and urine and had feces on the lid. It was unsanitary and unusable. X. B. asked the case manager to take him to the local gas station so that X. B. could use the bathroom. Soon after, X. B. was removed from Petitioner's care due to unsanitary conditions and/or unsafe conditions in Petitioner's home. T. T. was a one-year-old child who was also placed in Petitioner's foster home during her earlier licensure period. Again, the case manager saw evidence of roach infestation in Petitioner's home. At first, the case manager only saw a couple of roaches in the home. However, the roach problem progressively grew to the point that during one of the case manager's visits the wall behind the baby's crib looked like it was moving because there were so many roaches on it. Soon after, the case manager removed T. T. to another foster home. When they arrived at the new home, a roach crawled out of T. T.'s diaper bag. Upon inspection of the bag, the case manager discovered many dead roaches in the bag. More importantly, half of a dead roach was discovered in the baby bottle of milk that T. T. was drinking while being moved to T. T.'s new foster home. Clearly, the condition of Petitioner's foster home was neither sanitary nor safe. Petitioner's care of both these children resulted in verified abuse reports in Florida's abuse registry for conditions hazardous to the health of children. Petitioner's initial foster home license either lapsed or was not renewed. Since 2004, Petitioner has not been financially stable. In fact, she often asked her neighbors for money to pay her utility bills or buy gas for her car. Additionally, Petitioner lost different homes to foreclosure in 2006 and 2007. Since 2009, she and her children have moved to a different home an average of once a year. To her credit, Petitioner attended college and obtained her doctorate in Theology and Philosophy. However, her history has not demonstrated either household stability or financial ability in her life. In 2011, Petitioner applied for licensure as a family foster home. She successfully completed the Model Approach to Partnership in Parenting (MAPP) training program on September 20, 2011. In June 2012, Trauma Therapist for Children’s Homes Society, Katie Klutz, began the required home study of Petitioner. During the home study, Petitioner and her three biological children were living in a three bedroom home. Petitioner moved her bedroom furniture into the living room in order to make room for potential foster children. The bedroom space was separated from the living room by "curtains" that afforded no significant privacy for those living in the home. Clearly, Petitioner's home did not provide sufficient space to foster an additional child in the home. Petitioner has since moved to a larger home that was not the subject of the home study for this license. However, given Petitioner's past household instability, the very limited evidence regarding this new home does not support a finding that Petitioner's current home offers sufficient space to provide for the privacy and well-being of a foster child. More importantly, Petitioner has not worked since having an accident on the job in May 2010. A neighbor also provided a written reference in which she praised Petitioner’s spirit but stated that it is “a real struggle” for Petitioner to maintain her home and that “she will definitely need additional support in this area.” Notably, it was unclear how Petitioner was currently supporting her household. She has no employment. Petitioner claimed that she received money from a church or charitable organization that she founded. However, there was no evidence that such limited income, if any, was sufficient to support her family and/or provide financially stable conditions to Petitioner and her family. Moreover, Petitioner's bank records reflect that in June 2012, she made deposits of $167.53 and debited the account $266.07. Her ending balance in June was $18.81. At hearing, other than child support and food stamps, Petitioner offered no evidence of additional finances or income that is attributable to her. Given these facts, Petitioner has failed to demonstrate home safety, household stability or financial ability sufficient to entitle her to be licensed as a foster home. Therefore, Petitioner's application for such licensure should be denied.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner's application for licensure as a foster home should be denied. DONE AND ENTERED this 28th day of March, 2013, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of March, 2013. COPIES FURNISHED: Paul A. Rowell, Esquire Department of Children and Families 2383 Phillips Road Tallahassee, Florida 32308 Shakinah Glory 4768 Woodville Highway Apartment 428 Tallahassee, Florida 32305 M. Burnette Coats, Esquire Department of Children and Families 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399 Gregory Venz, Agency Clerk Department of Children and Families Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Marion Drew Parker, General Counsel Department of Children and Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 David Wilkins, Secretary Department of Children and Families Building 1, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether Petitioner's foster care license should be revoked because she allegedly lacks the ability to provide for the psychological development of foster children as required in Section 409.175(4)(a)2, Florida Statutes and Rule 10M-6.005(3)(i), Florida Administrative Code.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received, and the entire record compiled herein, the following relevant facts are found. Petitioner, State of Florida, Department of Health and Rehabilitative Services, is the licensing and regulatory agency in Florida for the issuance of foster home licensing. On January 16, 1991, Petitioner issued to Respondent, Pauline Cole, a provisional certificate of license for a foster home for her residence situated at 3501 River Grove Drive in Tampa, Florida indicating that she had complied with the minimum standards set by Petitioner for a foster home and approved her foster home application. By its terms, the license was effective for a period of one year from the above-referenced date unless renewed, extended, withdrawn, or revoked for cause. To demonstrate her eligibility for licensure, Respondent successfully completed several courses including "a clinical interventions for psychiatric nurses: frameworks for success" sponsored by the Florida Mental Health Institute in Tampa, Florida with six contact hours on June 15, 1990. On December 17, 1990, Respondent successfully completed 30 hours of training in "model approach to partnership and parenting (MAPP)". Additionally, Respondent took several other courses dealing with parenting and caring for foster children. On November 21, 1991, Petitioner filed an application to renew her license to provide for foster home care for dependent children. As a result of that application, Petitioner's agents visited Respondent's home to determine whether it still complied with standards set by Petitioner for licensure. During a foster parents meeting in June, 1992, Respondent inquired of one of Petitioner's agents whether or not Petitioner had a policy of surveilling foster parents by following them or otherwise monitoring their activities and particularly their vehicular travels. Petitioner's agent advised Respondent that that was not HRS's policy, i.e., to surveil foster care parents whereupon Respondent related that she felt that she had been followed by Petitioner's child protective investigators. Respondent related several steps that she undertook to determine whether or not she was in fact being followed. Specifically, Respondent would change directions or would make turns from main thoroughfares to see if the car that she considered to be following her would make a similar change in direction. Respondent did not take any evasive measures which in any manner endangered the lives of the foster children that were in her care. During the time of her foster care licensure, Respondent had two foster care children ages three and four. During the sessions wherein Respondent's application for licensure was discussed with Petitioner's agents, Respondent again expressed concern that she was being followed, however, during the last session during March 1992, Respondent advised Petitioner that while she still had her doubts that she was not being followed, she was no longer concerned that she was being followed to the point of taking evasive actions to try to verify her concerns. During the final meeting wherein Petitioner's agents inquired of Respondent if she still had the paranoid ideation that she was being followed, Respondent basically advised Petitioner's agents that "she was leaving the matter in the hands of the Lord." Petitioner's agents basically advised Respondent that if they (Petitioner's agents and Respondent) could put to rest their concern that Respondent no longer had the paranoia of being followed, Respondent could be relicensed. 1/ Respondent earned a bachelor of science degree in nursing from Tuskeege Institute in 1958. She earned a master's degree from the University of South Florida in industrial and technical education during 1979. She is certified as a registered nurse and a community education instructor. Respondent was employed as a registered nurse and nursing instructor at the Veteran's Administration (VA) Hospital in Montgomery, Alabama, Gainesville and Tampa, Florida during the years 1962 through 1980. She retired from the VA in 1980. From 1989 to the present time, Respondent has been employed as a community education instructor at Hillsborough Community College in Tampa, Florida. Respondent holds memberships in several professional and civic organizations and has been very active in community service organizations in Hillsborough County. Among the awards and honors she received was a nominee in Who's Who in American Nursing during 1993-94, a nominee for the achievement award for advocacy/public service at the Tuskeege National Alumni Association during 1992; co-founder, Minority Nurses Association of the Tampa Bay Area and an award for dedicated service, Iota Phi Lambda Sorority, Southern Region, during the years 1983-1987, among others. Respondent has been able to provide a great deal of parenting and inspiration to her two foster children during the times that she cared for them until they were separated from her by Petitioner's agents during 1992. Based on her nursing background and the amount of time that she has been able to devote to her children, she has served as a model foster parent since the time that she was issued a provisional license during 1991.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: Petitioner enter a final order granting Respondent's application to be relicensed as a foster home provider assuming, of course, that she complies with other licensing requirements. DONE AND ENTERED this 12th day of July, 1993, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of July, 1993.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: The Department is a state government licensing and regulatory agency. At all times material to the instant case, Petitioner and her husband, Keith Sterling, were licensed to operate a family foster home at their residence in Palm Beach County, Florida. On September 1, 1994, as part of the licensing process, the Sterlings signed an "Agreement to Provide Substitute Care for Dependent Children" (hereinafter referred to as the "Agreement"). In so doing, they agreed that they would, as licensed foster parents, among other things, "comply with all requirements for a licensed substitute care home as prescribed by the [D]epartment" and, "whenever possible, give the [D]epartment at least two weeks notice," if they wanted the Department to "remove a child from [their] home." In the spring of 1995, the Sterlings, on a fairly regular basis, "returned" foster children to the Department only a day or two after the children had been placed in their home without giving the Department the "two weeks notice" required by the Agreement. The Sterlings' actions created a further disruption in the lives of these foster children and ran counter to the Department's goal of providing foster children with a relatively "stable setting" until they are adopted or reunited with their birth family. Jo Ann Weisiger, a foster care licensing counselor working in the Department's District 9 foster care licensing and adoption office, visited the Sterlings' home in April of 1995 and expressed the Department's concerns about the Sterlings' practice of "returning" recently placed foster children to the Department. After Weisiger's visit, the practice continued. Weisiger therefore paid another visit to the Sterlings' home on May 15, 1995, to discuss the matter with the Sterlings. During Weisiger's May 15, 1995, visit, Petitioner requested that the Department not place any foster children in her home for three months. She explained that she needed "a break due to her health." The Department complied with Petitioner's request. On September 11, 1995, Weisiger telephoned the Sterlings' residence to find out from Petitioner whether she and her husband wanted to renew their foster family home license (which was due to expire on October 31, 1995). Petitioner was not at home. Weisiger therefore left a message to have Petitioner return the telephone call. The following morning (September 12, 1995), Weisiger received a telephone call from Petitioner. Petitioner told Weisiger that she and her husband wanted to renew their foster family home license, but she expressed an unwillingness to comply with Weisiger's request that she authorize the release of information and records concerning her medical condition. Weisiger advised Petitioner that the Department needed to have such medical information and records in order to determine whether to renew Petitioner's and her husband's license. Weisiger followed up her September 12, 1995, telephone conversation with Petitioner by sending to Petitioner, on September 13, 1995, a letter, which read as follows: Pursuant to your request in June [sic] 1995, to remove the foster children due to your health concerns and personal reasons, we are requesting that you sign a medical release. We will need to contact your physician to obtain a professional opinion on your capacity to parent and meet the needs of our children. We are unable to contact a physician without your permission and without this information, we will not be able to evaluate your home for relicensing. We are enclosing a medical release for your signature. Please return this at your earliest convenience in the enclosed envelope, as your license expires on 10/31/95. The "medical release" that Weisiger sent along with the letter "for [Petitioner's] signature" was the following "Authorization for Release of Health and Medical Information for Prospective Foster and Adoptive Parents" form (hereinafter referred to as the "Medical Release Form") that Weisiger's office uses in its efforts to obtain the necessary information to ascertain whether applicants seeking to become or remain foster or adoptive parents are able to care for children: I hereby request and Authorize (Name of Person) Health [and] Rehabilitative Services 1784 N. Congress Ave., Suite 102 West Palm Beach, FL 33409 To obtain from: (Name of Person or Agency Holding the Information) Address: PHYSICIANS: Please provide complete information The following: All Medical Information, Reports, and Records, including diagnoses, subsequent courses of treatment, and prognoses pertaining to current and future physical and mental health status. All Medical Information, Reports and Records pertaining to health history during the past two years. From the medical record of : (Print or type name of client [and] birth date) For the purpose of assessing the health of the prospective caretaker as it relates to the applicant's ability to provide long-term care of a child/children, including economic support. I understand that my signature authorizes full disclosure of my medical and health condition and thereby, includes HIV test results. All information I hereby authorize to be obtained from this agency will be held strictly confidential and cannot be released by the recipient without my written consent, except for the purpose of judicial review in adoption proceedings. I understand that I may withdraw my consent at any time, but to do so will stop further consideration of myself as an adoptive or foster parent. Date Signature of Applicant USE THIS SPACE ONLY IF APPLICANT WITHDRAWS CONSENT Date consent Signature of Applicant revoked by applicant On September 15, 1995, Petitioner telephoned Weisiger and informed Weisiger that she was not going to sign the Medical Release Form Weisiger had sent her inasmuch as, in her opinion, her "health was none of [the Department's] business." As of the date of the final hearing in this case, Petitioner had not signed the Medical Release Form. She did produce at the final hearing, a letter from her gynecologist, Stephen H. Livingston, M.D., dated October 13, 1995, which read as follows:: Peggy Sterling has been under my care since April 24, 1995. On April 27, 1995, she had a vaginal hysterectomy. She has been cleared to return to work. While Dr. Livingston's letter provides some information regarding Petitioner's health, the information is insufficient to enable the Department to determine whether Petitioner has any health-related problems that would impair her ability to care for, or would otherwise be injurious to, foster children placed in her and her husband's home. On October 31, 1995, the Department "closed" the Sterlings' family foster home "due to [the Department's] inability to determine capability of [the] foster mother [Petitioner] to parent, due to her recent physical problems." By letter dated November 2, 1995, the Department notified the Sterlings that "[s]ince [it had] failed to receive the Authorization for Medical Release [it had] requested from [Petitioner] several weeks [prior thereto], [the Sterlings'] Foster Home license expired on 10/31/95."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department enter a final order denying Petitioner's and her husband's application for the renewal of their family foster home license, without prejudice to Petitioner and her husband applying for a new license if, in conjunction therewith, they take the necessary measures to "share [Petitioner's] health history" with the Department, as required by Rule 10M- 6.025(8), Florida Administrative Code. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 29th day of March, 1996. STUART M. LERNER, 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 29th day of March, 1996. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 95-5974 The following are the Hearing Officer's specific rulings on the findings of facts proposed by the Department in its proposed recommended order: 1. Rejected because it lacks sufficient evidentiary/record support. 2-3. Accepted as true and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order. First sentence: Accepted as true and incorporated in substance; Second sentence: Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer. First sentence: Rejected as a finding of fact because it is more in the nature of a statement of the law than a finding of fact; Second and third sentences: Accepted as true and incorporated in substance. Accepted as true and incorporated in substance. Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer. First sentence: Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer; Second sentence: To the extent that this proposed finding states that Petitioner told Weisiger "that she was not going to sign the authorization to release any of her medical records to Dept. HRS," it has been accepted as true and incorporated in substance. Otherwise, it has not been incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer; Third sentence: Accepted as true and incorporated in substance. To the extent that this proposed finding states that, during their September 15, 1995, telephone conversation, "Petitioner again refused to sign the authorization to release her medical records to the Dept. HRS," it has been accepted as true and incorporated in substance. Otherwise, it has not been incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer. Accepted as true and incorporated in substance. Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer. COPIES FURNISHED: Peggy Sterling 1626 West 17th Street Riviera Beach, Florida 33404 Karen M. Miller, Esquire District Legal Counsel Department of Health and Rehabilitative Services 111 South Sapodilla Avenue West Palm Beach, Florida 33401 Richard Doran, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Sandy Coulter, Acting Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue in this case is whether Petitioner should revoke Respondents' foster home license for use of corporal punishment of a foster child in violation of Section 409.175(8), Florida Statutes (2001), and Florida Administrative Code Rule 65C-13.010. (Citations to statutes are to Florida Statutes (2001), and citations to rules are to rules promulgated in the Florida Administrative Code in effect on the date of this Recommended Order.)
Findings Of Fact Petitioner is the state agency responsible for licensing and regulating foster homes in Florida. Respondents are licensed foster parents. On November 1, 2001, Petitioner's Child Protection Team received an abuse report alleging that Respondent, Yvonne Lindsay, had administered corporal punishment to a foster child under Mrs. Lindsay's care and identified in the record as D.J. D.J. was born on May 6, 1997. D.J. urinated in the van owned by Respondents. D.J. urinated in the van regularly. Mrs. Lindsay became angry and grabbed D.J. forcefully by the arm. Mrs. Lindsay testified that she did not spank D.J. Mrs. Lindsay's denial concerning corporal punishment is neither credible nor persuasive. On November 2, 2001, members of the Child Protection Team examined D.J. at one of their offices. One team member who observed D.J. is an Advanced Registered Nurse Practitioner (ARNP). The ARNP has specialized in family practice since 1980 and was the supervising nurse practitioner in the examining room when other members of the Child Protection Team examined D.J. The ARNP observed fresh red contusions on D.J.'s back as well as numerous healed lesions on D.J.'s buttocks from old injuries. The ARNP observed D.J. herself and supervised the examination.
Recommendation Based upon the foregoing Findings of Fact and Conclusion of Law, it is RECOMMENDED that the Petitioner enter a Final Order finding that Mrs. Lindsay used corporal punishment against one of her foster children in violation of Section 409.175 and Rule 65C-13.010 and revoking Respondents' foster care license. DONE AND ENTERED this 6th day of March, 2003, in Tallahassee, Leon County, Florida. ___________________________________ DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of March, 2003. COPIES FURNISHED: Richard Cato, Esquire Department of Children and Family Services 400 West Robinson Street Suite S-1106 Orlando, Florida 32801-1782 J. William Masters, Esquire 2901 Curry Ford Road, Suite 207 Orlando, Florida 32806 Paul Flounlacker, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700 Jerry Regier, Secretary Department of Children and Family Services 1317 Winewood Boulevard Building 1, Room 202 Tallahassee, Florida 32399-0700
The Issue The issue in this case is whether Petitioner should revoke Respondents' foster home license based on violations of section 409.175(9), Florida Statutes (2014), and provisions of Florida Administrative Code Chapter 65C-13 alleged in the Notice of Intent to Revoke Foster Home License dated April 16, 2015.
Findings Of Fact Petitioner is the state agency responsible for licensing foster care parents and foster homes pursuant to section 409.175.2/ Respondents are foster care parents in a foster care home licensed as Provider FSFN ID #100032652, the therapeutic foster home at issue in this proceeding.3/ A.A., an eight-year-old child, was placed into Respondent's foster home in April 2014.4/ On the afternoon of September 4, 2014, Respondent Cherie Iturriaga took A.A. and her two grandchildren to a shopping center. When they were ready to leave, A.A. refused to get into the family van. Mrs. Iturriaga testified that she tried, for approximately ten to 15 minutes, to persuade A.A. to get into the vehicle, but he refused. She became very frustrated, yelled at A.A. to get into the van, and began to back the van out of the parking space while A.A. was standing next to the van's open door.5/ A passerby called 911 to report that Mrs. Iturriaga—— who the passerby characterized as A.A.'s "grandmother"——was attempting to make A.A. get into the vehicle against his will. The passerby told A.A. "you don't have to get in the van if you don't want to." Mrs. Iturriaga also called 911 to report that A.A. would not get into her vehicle. She told the 911 dispatcher that she was not staying for him, and that she was "going home." The dispatcher told her that because the child was supposed to be in her care, she had to stay with him, and that officers already were on the way to that location. Nonetheless, Mrs. Iturriaga drove away and left A.A. in the parking lot with the passerby, who Mrs. Iturriaga characterized, in testimony at the hearing, as a "random person." The evidence does not clearly establish whether Mrs. Iturriaga left A.A. in the parking lot for "five to ten minutes," as she claimed, or for as much as 20 to 30 minutes, as indicated by other evidence in the record. Regardless, it is undisputed that she drove away from the parking lot and left A.A. in the company of a stranger. At some point, Mrs. Iturriaga returned to the parking lot to pick up A.A., but he was not there. She called 911, and the dispatcher confirmed that A.A. had been taken to the Pembroke Pines Police Department. Mrs. Iturriaga went to the police department to pick up A.A. There, she was arrested and charged with child neglect without great bodily harm, a third-degree felony; this charge ultimately was dropped. A.A. was not physically harmed as a result of being left in the parking lot. The evidence establishes that approximately 45 days before the September 4, 2014, incident, Mrs. Iturriaga requested that Citrus remove A.A. from Respondents' foster home within 30 days; however, he was not timely removed. When the incident giving rise to this proceeding occurred, A.A. was immediately removed from Respondents' foster home. Another child, J.O., who was approximately 14 years old at the time of the incident, was placed in Respondents' foster home approximately two and one-half years before the incident. Since then, J.O. has formed very close bonds with both Respondents, particularly Mr. Iturriaga. At the time of the hearing, J.O. had not been removed from Respondents' home and continued to reside with them. J.O. does not wish to be removed from Respondents' home. Eric Sami serves as the guardian ad litem for J.O., and has done so for the past three and one-half years. Mr. Sami testified, persuasively, that when he was assigned to J.O.'s case, J.O. was a very withdrawn, depressed, socially unstable child who had been moved through several different foster homes, and who was academically struggling. Since being placed in Respondents' home, J.O. has flourished. He has made friends, his academic performance has dramatically improved, and he is no longer depressed and socially unstable. According to Mr. Sami, Respondents have treated J.O. as if he were their own child, including taking him on family vacations and involving him in all holiday celebrations. Mr. Iturriaga participates in parent- teacher conferences for J.O. and has taken an interest in J.O.'s school work and in helping him improve his academic performance. Sami also testified, credibly, that in the short amount of time in which A.A. lived in Respondents' home, he was an extremely disruptive force, bullying J.O. and Respondents' grandchildren and killing ducks in front of Respondents' granddaughter——an event that was extremely traumatic for her to witness. Sami observed, and the undersigned agrees, that it is fundamentally unfair for J.O. to suffer the consequences of Respondents' license revocation due to an event that was precipitated by A.A.'s extreme, ongoing misbehavior before he was removed from the home. Because Sami and J.O.'s therapist, Fred Leon, believed so strongly that removing J.O. from Respondents' home would have very substantial negative consequences for J.O., they advocated to Petitioner and Citrus to allow Respondents to keep their foster home license and to keep J.O. in their home. However, that did not dissuade Citrus from recommending that Petitioner revoke Respondents' license. In October 2014, J.O.'s placement was changed from foster care in Respondents' home to non-relative placement in Respondents' home. Because revocation of Respondents' license would require J.O. to be removed from Respondents' foster home, this placement change was necessary in order for J.O. to remain in the home. However, this placement change is not without negative consequences. J.O. remains in Respondents' home but they do not receive any monetary allowance for his care,6/ so they are placed in the position of supporting him without receiving any financial assistance through the foster care system. Thus, the consequence of revoking Respondents' license is that if J.O. remained in the foster care system, he would have to be moved to a licensed foster home. If he were to stay in Respondents' home in a non-relative placement, Respondents would not receive any monetary assistance through the foster care system to help with his support. Respondents' fervently wish to keep J.O. in their home, even without financial assistance through the foster care system, due to the strong emotional bond they have with him and because of the remarkable social and academic strides he has made while in their care. However, Mr. Iturriaga testified, persuasively, that this situation imposes a financial hardship on them, which, in turn, penalizes J.O. That Respondents wish to continue to provide a nurturing home for J.O., despite the financial hardship, is strong evidence that they have J.O.'s best interests at heart and that they would continue to provide the same stable, nurturing environment for him that they have provided for more than two and one-half years. As noted above, the criminal charges against Mrs. Iturriaga were dropped. Nonetheless, employees of Citrus testified that because there was an open child abuse investigation with verified findings, they could not recommend that Respondents' foster home continue to be licensed. Petitioner presented the testimony of Sonia De Escobar, licensing manager of Petitioner's Circuit II foster care program. Ms. De Escobar testified that Petitioner is seeking to revoke Respondents' license in part due to concern for the safety of children who may be placed in Respondents' foster home in the future. De Escobar noted that it is not uncommon for children in the dependency system to "misbehave,"7/ and Petitioner is concerned about Respondents' ability to deal with child misbehavior in the future. However, the evidence establishes that Respondents successfully cared for eight foster children over a six-year period and never had any problems dealing with child misbehavior until the incident involving A.A. As discussed above, the evidence establishes that A.A. was extremely aggressive and engaged in behavior that seriously disrupted Respondents' home environment. Because of A.A.'s extreme behavior, Respondents previously had given Citrus the required 30-day notice. However, Citrus did not timely remove A.A. from Respondents' home and the incident giving rise to this proceeding thereafter ensued. As noted above, there is no dispute that Mrs. Iturriaga intentionally left A.A. with a complete stranger for some period of time. In doing so, she endangered his health and safety, in violation of section 409.175(9)(a)1. However, the undersigned finds that mitigating circumstances in this case militate against revoking Respondents' foster home license. Specifically, Respondents enjoyed a spotless record as foster parents before the incident involving A.A. Further——and very importantly——they have fostered a very successful, nurturing, long-term parental relationship with J.O. that will be jeopardized if their foster home license is revoked. Finally, it is undisputed that A.A.'s behavior was extremely aggressive, disrespectful, and disruptive throughout the time he was placed in Respondents' home. On September 4, 2014, his behavior finally caused Mrs. Iturriaga to "snap."8/ Although her actions unquestionably were inappropriate and affected A.A.'s health and safety, the evidence indisputably shows that this was a one-time incident that occurred while Mrs. Iturriaga was under significant duress, and that, under any circumstances, A.A. was not injured. The undersigned further notes Citrus' role in this incident. As the child placing agency, Citrus is charged with placing foster children in foster homes, and with removing them when circumstances warrant. As discussed above, in July 2014, Respondents gave Citrus the required 30-day notice for transitioning A.A. out of their home. However, Citrus failed to timely meet its obligation to remove A.A. from Respondents' home and this incident subsequently occurred. Had Citrus met its obligation to timely remove A.A. from Respondents' home, this incident would not have occurred. Thus, Citrus is not without blame in this matter. The undersigned further notes that if Respondents were allowed to keep their license, Citrus, as the child placing agency, is obligated under the Bilateral Agreement to consult with Respondent before placing children in their home. This consultation process presumably would help ensure that children having extreme behavioral problems are not placed in Respondents' home in the future. For these reasons, the undersigned finds that allowing Respondents to keep their foster home license would enable them to continue their close, nurturing relationship with J.O., and, further, likely would not result in any danger or other adverse effect on the health and safety of foster children who may be placed in their home in the future.9/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Families enter a final order dismissing the Notice of Intent to Revoke Foster Home License issued on April 16, 2015, and imposing a corrective action plan on Respondents' foster home license to the extent deemed appropriate. DONE AND ENTERED this 17th day of February, 2016, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of February, 2016.
The Issue The issue in this case is whether Petitioner's foster home license should be renewed.
Findings Of Fact From August 24, 2004, and throughout the period material to this proceeding, Petitioner Jannifer Thompson ("Thompson") and her husband, Dalkeith, held a license that authorized them to operate a family foster home under the supervision——and within the regulatory jurisdiction——of Respondent Department of Children and Family Services ("DCF"). Like all licensed foster parents, Thompson and her husband had entered into a written contract with DCF known as the "Bilateral Service Agreement" ("Agreement"), most recently as of April 30, 2006. This Agreement, by its terms, "reflect[ed] standards of care that are current requirements in Florida [law]." On September 14, 2006, a counselor named Elboney Ojobor, who was employed by a private agency to whom DCF had delegated various responsibilities pursuant to contract, made a routine quarterly visit to Thompson's home. Ms. Ojobor was covering for a colleague (Rondalyn Woulard) who was on maternity leave; she had not met Thompson previously. While interviewing Thompson, Ms. Ojobor learned that Thompson was the only adult living in the home at the time, and that Thompson was getting divorced from Dalkeith. Ms. Ojobor understood this to mean that Mr. Thompson had moved out of the home permanently. In fact, Mr. Thompson was away from the home then not because he had moved to another residence ahead of a divorce, but because his job with a shipping company had required him to be out of town for an extended period. Nevertheless, the couple was estranged; Mr. Thompson would leave the marital home for good in the middle of October 2006. Ms. Ojobor's visit was not the first occasion on which Thompson had notified DCF (through its private-sector agent) that her marriage to Dalkeith was in trouble. During an earlier home visit (probably around June 2006, during the quarter immediately preceding Ms. Ojobor's visit in September), Thompson had told her regular counselor, Ms. Woulard, that she might divorce Dalkeith. Ms. Ojobor was not aware of this previous communication, however, and thus she reported the apparent change in circumstances (Mr. Thompson's absence) to her supervisor. The upshot was that on September 15, 2006, Ms. Ojobor called Thompson to inform her that, if she were to continue operating the foster home as a single parent, she would need to obtain a new license. As it happened, whatever steps Thompson took thereafter to become re-licensed came quickly to naught because, in early October 2006, DCF received an allegation that children in Ms. Thompson's home were being physically abused. Having brought up the abuse report, the undersigned believes it necessary here to interrupt the narrative flow of the findings, to call attention to some important points. The most serious charge against Thompson in this case is that she used "excessive" corporal punishment on foster children in her care. The accusation is not that Thompson was found by some other agency or investigator to have abused a foster child or children. The distinction is critical. Because DCF has alleged that Thompson used corporal punishment excessively, it is not sufficient (or even necessary) for DCF to prove that someone else, after investigating allegations of abuse, concluded that Thompson had inflicted some sort of physical injury on a foster child. Rather, DCF must prove that Thompson, in fact, actually used corporal punishment, which is a different fact. Indeed, that someone else found Thompson guilty of physical abuse is not especially probative, in this de novo proceeding, of the salient factual dispute, namely whether Thompson used corporal punishment on foster children.2 Against this backdrop, the undersigned finds that, on October 9, 2006, DCF referred a report of abuse concerning Thompson to the local Child Protective Team ("CPT"). DCF requested that the CPT examine the allegedly abused foster child and make an assessment of the situation. One member of the CPT who took part in this particular assessment was Karl Dorelien. Though not a medical provider, Mr. Dorelien was present for the medical examination of the child in question, whose name is T. P. The examination was performed by an advanced registered nurse practitioner ("ARNP"). Mr. Dorelien testified at hearing. The ARNP did not. At the time of the examination, Mr. Dorelien saw some bruising on T. P.'s forearm. T. P. told Mr. Dorelien and the ARNP that she had been struck by a belt. The CPT did not independently investigate T. P.'s statement. Mr. Dorelien and the ARNP accepted at face value T. P.'s statement about the cause of her injury. The ARNP found that T. P.'s wound was "not accidental." (Mr. Dorelien specifically denied having the expertise to ascertain whether a bruise was caused accidentally or intentionally. There is, it should be added, no persuasive evidence that the ARNP possesses such expertise, either.) Based on the medical examination, the CPT concluded that Thompson had struck T. P. with a belt. (It is not clear how the CPT determined that Thompson——as opposed to someone else——caused T. P.'s injury.3) The evidence shows, in short, that the CPT found Thompson had caused bodily injury to T. P., a foster child then in her care, whom (the CPT determined) Thompson had hit with a belt. There is, however, no persuasive evidence upon which the undersigned independently can find that Thompson actually hit T. P. with a belt (or otherwise). How can this be? First, no one claiming to have personal knowledge of the matter testified at hearing that Thompson had struck T. P. with a belt. (T. P. was not called as a witness.) Thompson denied having perpetrated the alleged misdeed. Second, although there is competent and credible evidence (Mr. Dorelien's testimony) that T. P.'s forearm was bruised, the only evidence as to the cause of this injury was hearsay: (1) T. P.'s statements to the CPT revealing that she had been struck with a belt and (2) the ARNP's opinion (which Mr. Dorelien repeated at hearing) that the wound was not accidental. This uncorroborated hearsay is not a legally sufficient basis for any finding of fact, and even if it were, the undersigned, as the trier of fact, would give it too little weight to support a finding.4 Finally, even if there were sufficient evidence in the record to support a finding that T. P. had been struck with a belt (and there isn't), there yet would be nothing but Mr. Dorelien's ambiguous testimony concerning the substance of T. P.'s out-of-court statement, coupled with inference or speculation (based on uncorroborated hearsay), tending to establish that Thompson did the striking. Again, such "proof" is neither legally sufficient nor, in any event, logically persuasive enough to support a finding that Thompson was at fault for the child's injury. DCF alleges that, in addition to striking T. P. with a belt (which allegation was not proved, as just found), Thompson also spanked J. D. F. and his brother, O. F. Both of these boys, respectively aged 8 and 7 years at the time of hearing, testified against their former foster mother. Each claimed that Thompson had spanked him with a belt. As witnesses, however, the boys did not inspire confidence in the truth of their accounts. Each gave testimony that was confusing, sometimes inconsistent, and lacking in precision. Neither one seemed distinctly to remember the important events at issue, much less any of the details surrounding them, causing the undersigned to wonder, at times, whether the boys were independently recalling the underlying events or, rather, testifying from the memory of what someone might have told them was alleged to have occurred. Doubtless many of these boys' shortcomings as witnesses stemmed from their youth and immaturity. Even so, all witnesses, regardless of age and experience, must be measured according to the same standards of credibility; the bar can be neither lowered nor raised to conform to a particular witness's capacity for giving testimony, for doing so would put a thumb on the scales of justice. At bottom, the accounts of J. D. F. and O. F., though not inherently incredible, nevertheless lacked sufficient indicia of reliability to produce in the undersigned's mind a firm belief or conviction that Thompson had spanked them with a belt. The undersigned hesitates to say more than that such is a possibility. Against the shaky testimonies of the boys was offered the decidedly stronger testimony of their sister, Sancia Jeantil, who swore that while she was living in Thompson's home (which admittedly was not at all times her brothers were there), she never saw Thompson spank either J. D. F. or O. F. She further testified that neither of her siblings had ever complained to her about being beaten. The undersigned has accorded considerable weight to Ms. Jeantil's testimony, because it seems unlikely that she would prevaricate to protect Thompson at her brothers' expense. Although Ms. Jeantil was not always present in the home, her testimony, which the undersigned accepts, is persuasive proof of the pertinent negative proposition, i.e. that Thompson did not use corporal punishment on the boys. Thompson herself testified at hearing and denied having used corporal punishment on J. D. F., O. F., or any other foster child. Mr. Thompson, too, testified that corporal punishment had not been used on any of the foster children in their home. Thompson's own child, J. T., said the same. None of these witnesses conclusively proved the negative of DCF's allegation regarding corporal punishment, but then again it was not Thompson's burden to disprove the charge. What these witnesses did do, effectively, was establish a credible, if simple, theory of innocence: Thompson never beat the foster children in her care. The undersigned has determined, as a matter of ultimate fact, that the evidence as a whole fails to produce in the mind of the trier of fact a firm belief or conviction, without hesitancy, that Thompson used corporal punishment on any of the foster children under her care. Aside from the allegations regarding corporal punishment, DCF has charged Thompson with the lesser offense of failing immediately to notify DCF that her husband had moved out of the home. The evidence shows, however, that Thompson satisfied her duty to notify DCF concerning changes that might affect the life and circumstances of the foster children residing in her home. To recap, briefly, the material facts, Thompson informed DCF's agent, Ms. Woulard, of the possibility that she and Dalkeith might divorce; thus, DCF was on actual notice of a potential change in Thompson's marital status. Thompson likely gave DCF this advance warning in June 2006; in any case, she spoke up long before Dalkeith established a new residence and before the divorce proceeding commenced. There is no clear proof that the couple's situation had changed materially as of September 14, 2006, when Mr. Ojobor visited the home. Without question, Mr. Thompson was away at that time——but he worked for a shipping company and thus extended absences were part of his routine. Having all the evidence of record in view, the undersigned is not convinced that Mr. Thompson had "moved out" of the home as of mid-September 2006 in the sense of having permanently relocated from that residence, which is what DCF maintains. While there is some evidence that such was the case, there is also persuasive evidence that Mr. Thompson did not leave the home for good until October 2006——evidence sufficient to preclude the undersigned from finding, without hesitancy, that DCF's allegation is accurate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that DCF enter a final order approving the renewal of Thompson's foster home license. DONE AND ENTERED this 15th day of November, 2007, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of November, 2007.
