The Issue Whether Petitioners, Kim and Coby Lantz, should be granted a license as a family foster home.
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. Petitioners are applicants for a family foster home license. In February 2004, Petitioners initially sought to adopt a child, but, subsequently, changed the application to provide foster care for children. As part of the process, Petitioners attended an orientation conducted by Respondent's family services counselor and completed a screening questionnaire. As part of the application process, applicants are required to complete the Model Approach for Parenting (MAP) training, which includes classes to better prepare prospective foster and adoptive parents for the placement of children in their homes. The purpose is to ensure, prior to placement, that prospective parents work effectively as a team with each other and with Respondent. It is also important that they know and understand their rights and obligations that a stable environment be created for the children. As part of the MAP training and evaluation, prospective foster parents are required to complete a thorough background and history form. They are asked to give a complete life history, including prior relationships, marriages, customs, and culture. Both Petitioners completed the form. Petitioner Coby Lantz has been very supportive of his wife's desire to obtain a family foster home license and to provide care for foster children. He provided sufficient information in order for Respondent to complete his portion of the family assessment. Petitioner Coby Lantz completed the MAP training during this period. Petitioner Kim Lantz was given credit for completing the MAP training while married to her second husband, Darrell Palmer. Petitioner Kim Lantz completed the Adult's Personal Profile (for prospective mothers), consisting of 17 pages, plus a five-page, hand-written "Life Story." On page five of the profile, she was specifically asked to complete information on previous intimate relationships and former marriages. Petitioner Kim Lantz listed only one former marriage. She indicated she was married to Darrell Palmer from November 18, 2000, until his death on September 12, 2001. However, Petitioner Kim Lantz was, in fact, married to Robert D. Haynes in June 1991, separated two years later, and the final decree of divorce was entered on October 10, 1995. Petitioner Kim Lantz's explanation of this omission, while testifying at the hearing, was that she and her first husband married shortly after college. She stated, "[i]t was a high school sweetheart thing . . . he was not abusive to me. He did drink. We just grew apart. We divorced. That was it. It was like a guy I dated. He's not really anything to comment about. I moved on " These responses, along with other parts of her testimony, indicate that Petitioner Kim Lantz tends to suppress unpleasant memories from her past and to not deal with them effectively. Also, Petitioner Kim Lantz has not given a credible explanation of her complete omission of any reference to Haynes in her profile or "Life Story." In addition, it was only with excessive prodding that Petitioner produced a Certificate of Divorce from Haynes. These omissions and vague explanations have prevented Respondent from completing a thorough family assessment as required by Florida law. Petitioner Kim Lantz's second marriage to Darrell Palmer ended tragically on November 12, 2001. She was present with her husband in their apartment when local law enforcement came to their door. The law enforcement officers were seeking to determine the origin of bomb threats made to a local Dillard's department store. Apparently, they wanted to interview her, who was employed there at the time, and Palmer, a former employee. When Palmer, who was preparing a meal in the kitchen, opened the door with a kitchen knife in his hands, he was shot and killed by law enforcement. Petitioner was emotionally devastated by this event. At her parents urging, she returned to their home in upstate New York, where she received love and support from her family and her church. Petitioner Kim Lantz testified that she was diagnosed with post-traumatic stress disorder and received mental health counseling for two years and, also, received medication for this condition. However, Petitioners have provided only sketchy information concerning her current mental health status. While still in New York, Petitioners met at a church function, dated, and married and eventually moved to Cocoa, Florida. During the course of Respondent's family assessment, it was determined, in late March 2005, that Petitioner Kim Lantz was terminated at her place of employment, a daycare facility, on February 28, 2005. She failed to report this event and attempted to withhold this fact from Respondent. Her explanation to Respondent's investigator and her testimony at the hearing is not credible and amounts to a willful or intentional misstatement.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that Petitioners, Kim and Coby Lantz's application for a family foster home license be denied. DONE AND ENTERED this 28th day of October, 2005, 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 28th day of October, 2005. COPIES FURNISHED: Richard Cato, Esquire Department of Children and Family Services 400 West Robinson Street, Suite S-1106 Orlando, Florida 32801-1782 Kim Lantz Coby Lantz 6983 Dahlia Drive Cocoa, Florida 32927 Gregory Venz, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
Findings Of Fact The Petitioners R.G. and M.G. were licensed as foster parents and their home as a Children Youth and Families foster home for dependent children at all times pertinent hereto. The Respondent is an agency of the state of Florida charged with licensure of foster parents and foster homes and with regulating and enforcing the standards of care of children placed in such foster homes as dependent children. This dispute apparently arose on or about April 18, 1990 when M.G., the foster mother, brought the M. children to the Department of Health and Rehabilitative Services office on that date to talk with a foster care counselor about problems experienced with the M. children in her home. Apparently the visit to the Department's office arose because M.G. had discovered that one of the children had allegedly stolen one or more articles from a local store in the community, or believed that she had, and was seeking the advise and council of Department's representative concerning the manner in which to address that perceived problem. During the course of that encounter with the Department's representative the M. children or some of them related incidents occurring in the home in the past while they were placed in the custody of the Petitioners which they felt involved or constituted mistreatment by M.G. Upon learning of these reports Department personnel removed the children from the G. home on April 18, 1990. No other children have been placed by the Respondent in the G. foster home since that time. Michelle M. testified that Petitioner M.G. called Marie M. a bitch, a whore and a slut on one occasion and gave Marie M. "the bird" (an obscene gesture). Michelle M. testified that M.G. called Marie M. a slut and stated that "she's just going to grow up to be a whore." Apparently Marie M. and Michelle M. had reported that M.G. called Marie M. a whore when Marie M. told M.G. about borrowing fifty cents from a boy at school. At the hearing, however, Marie M. testified that she borrowed fifty cents from a boy at school and that when M.G. learned of it she said "it would make her look like a whore." Mandy M. testified that M.G. thought that Mandy had called her "a faggot" and that, instead, she told her that she had called her sister that name but that M.G. did not believe her and sent her to her room and shoved her into the room whereupon she fell and hit herself against the bed or bedpost by accident. Michelle M. testified that on a church hayride a boy threw hay and hit M.G. in the face whereupon, thinking Michelle M. had done it, that M.G. hit Michelle on the leg with a flashlight. Mandy M. testified that M.G. hit Michelle on the leg with a flashlight, but her testimony revealed she knew nothing of that incident and her description of it was related to her by one of her sisters. Additionally, Marie M. testified that she saw M.G. pick up an infant by one arm from a crib and scold it for crying as she was picking the infant up to hold the infant in her arms. Michelle and Marie M. testified that M.G. held Marie M.'s mouth open and shoved red hot sauce into her mouth with a spoon as punishment for some perceived infraction. Marie M. testified that M.G. threw hot tea or hot water on the face of Marie M. while the child was asleep on a couch. M.G. categorically denies all the allegations made by the girls, the foster children in question referenced above. She denies ever making obscene gestures, ("the bird"), at any of the girls and denies calling them names such as bitch, slut or whore. She concedes that she may have admonished them or one of them about not "acting like a slut or a whore," etc. She also denies ever having administered hot sauce to any of the children. She said that on one occasion she gave Mandy some mustard on a teaspoon when the child inquired what it tasted like because she had never tasted mustard. She gave her a small amount of it just to show her how it tasted. She denies ever throwing hot tea or hot water on the face of any of the children and denies causing any of the children injury, specifically concerning the bedroom incident when the child apparently bruised her back falling against the bed. M.G. did use confinement for brief periods in a child's room as a form of discipline for inappropriate conduct in the home. She also denies hitting Michelle M. on the leg with a flashlight during the church hayride. In fact due to her position in the haywagon at the other end of the wagon from the child in question, it would have been impossible for her to reach over and hit her with a flashlight and that incident did not occur. M.G.'s testimony concerning the children's conduct and family life in the home with the children is to the effect that the older two girls, particularly the oldest, Michelle M., had a tendency to lie in order to "get their way"; that the girls were unruly and that they, particularly Michelle, used their relationship with HRS to try to intimidate the foster parents, particularly M.G. They had threatened to report M.G. for improper behavior towards the children in the home. The children resented the foster parents authority. Her testimony describes in detail, as do the exhibits submitted by the Petitioners, consisting of the monthly reports M.G. made to HRS, the progress of the girls and conditions generally in the foster home. This testimony and evidence shows that the Petitioners generally provided the children a good, wholesome home environment, with extensive involvement in school and church activities and with ample wholesome recreation activities at the home site on a lake. During the tenure of the girls in the Petitioners' home their scholastic progress improved markedly such that they were all earning "A and B" grades in school and otherwise were progressing well in school. M.G.'s testimony established that the Petitioners were providing a wholesome home environment for the children and were generally conscientious about caring for the children's needs, including medical needs, and with maintaining contact with and reporting to HRS concerning the children's living conditions and their progress in the home and in the school and church environment. The testimony of M.G. to the general effect that the older girls, particularly the oldest child, had a tendency to threaten reporting the parents or M.G. to HRS concerning their conduct as foster parents and their willingness to lie in an attempt to get their way or to intimidate the foster parents is corroborated by the letter in evidence as corroborative hearsay authored by Linda Kennedy. She is an acquaintance of the Petitioners associated with the Petitioners through the foster parent program. That letter indicates that when the girls were being taken to HRS to make statements concerning the incidents in question that they were reported to have said that they wanted to "get back at her" meaning M.G., the Petitioner and that Marie was heard to instruct Mandy not to talk to a lawyer because she "now liked M.G." and that Michelle had commented to the effect that she "wanted to really get her," meaning M.G. This information is taken from a hearsay letter in evidence pursuant to the above cited provision of Section 120.58, Florida Statutes but it corroborates the testimony to the same general effect of M.G. and corroborates testimony of Mandy who, after describing in her testimony some of the alleged parental abuse by M.G., testified that her sisters had asked her to say things to hurt M.G. Because of these revelations contained in the testimony of Mandy M. and the testimony of M.G., as corroborated by the letter in evidence authored by Linda Kennedy, it is deemed that the testimony of the three children can be accorded scant credibility and resultant weight. Accordingly the testimony of M.G. and Petitioner R.G. is accepted over that of the testimony of the three children testifying for the Respondent and it is found that the incidents described by the three children did not occur or did not occur in the way described by the three children such that they can not be deemed to have constituted abusive, disciplinary parenting practices and prohibited disciplinary practices. The testimony of Donna M. establishes that she has overseen the operation and management of foster homes in her capacity with the Department for many years. After the M. children were removed from M.G. and her husband and their foster home she had a number of telephone conversations with M.G. M.G. appeared to her, based upon her observance and her experience, to seem "fairly incoherent" during those telephone conversations on occasion. Consequently she recommended to M.G. that, in the course of the controversy concerning whether or not the foster home should be relicensed, that M.G. obtain a psychological evaluation. M.G. apparently scheduled that evaluation, appeared at the psychologist's office but, as shown by Petitioner's exhibit 5, the psychologist's report, apparently did not genuinely feel that she needed to get an evaluation. She rather merely consulted the psychologist concerning his advice to her about her dealings with HRS. He declined to render such advice and no psychological evaluation was ever made. In view of Ms. Mimms testimony, which is accepted, and in view of the comments made in the letter of Ms. Kennedy, and from the hearing officer's observance of the demeanor of M.G. and consideration of her testimony, it is deemed appropriate that a psychological evaluation of M.G. be obtained as a condition upon relicensure.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record and the candor and demeanor of the witnesses, it is therefore recommended that a Final Order be entered by the Department of Health and Rehabilitative Services granting the application for relicensure of the Petitioners as a Children Youth and Families foster home for dependent children, conditioned on the obtaining of a satisfactory psychological evaluation of M.G. RECOMMENDED this 3rd day of August, 1992, in Tallahassee, Florida. P. MICHAEL RUFF, 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 3rd day of August, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-5842 Respondent's Proposed Findings of Fact (The Petitioners submitted no proposed findings of fact which can be independently and specifically ruled upon). - I. Rejected as not supported by the greater weight and credibility of the evidence. COPIES FURNISHED: Rodney M. Johnson, Esquire HRS District 1 Legal Office P.O. Box 8420 Pensacola, FL 32505-0420 Ronald and Marjorie Grover 4713 Radio Road Milton, FL 32583 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 John Slye, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700
The Issue The issue in the case is whether Michael and Pamela Gary's licensure to provide foster care should be revoked.
Findings Of Fact At all times relevant to this case, the Petitioners operated a foster home in Dade City, Florida. On or about June 17, 2002, an abuse report was received that led to an investigation of the Petitioners' foster home. An allegation that the children were left unattended in a van was not supported by any evidence. During the investigation, the investigator heard of an incident during which one of the foster children housed in the Petitioners' home "pulled a knife" on one of the Petitioners' biological daughters. The evidence establishes that one of the foster children in the house was standing outside and was throwing rocks at a glass window. One of the Petitioners' biological daughters told the foster child to stop throwing the rocks. From within his clothing, the foster child pulled out a dirty knife he had apparently taken from the kitchen. Pamela Gary was present at the house but was outside at the time of the incident and apparently responded to the commotion. The child was told to drop the knife and he complied. Ms. Gary called law enforcement officers who responded to the scene. The foster child was removed from the home and committed for observation under the Baker Act. After the brief commitment, during which time the child's behavior became controlled by medication, he returned to the Petitioners' home where his behavior has improved. There is no evidence that anyone was injured during the "knife incident." During the investigation, the investigator was told that at some point, one child fell while jumping on the bed and fractured an arm. The evidence establishes that a child jumping on a toddler bed approximately 18 inches high fell from the bed and broke an arm. Neither of the Petitioners was present at the time of the accident. A caretaker who allegedly does not speak English was watching the children. The broken arm that resulted from the fall was clearly an accident. The evidence fails to establish that the child's injury was related to any abuse or neglect on the part of the Petitioners or any appropriate caretaker acting on their behalf. According to Ms. Gary, the caretaker (who allegedly speaks Spanish) communicated with children who were unable to speak English. The evidence fails to establish how the Petitioners communicate with the caretaker if, as the Respondent suggests, the caretaker speaks only Spanish and the Petitioners speak only English. There is no evidence that the Petitioners are unable to communicate with the caretaker. The Respondent asserts that the number of children housed in the Petitioners' foster home (13) exceeds the number permitted under their license. The evidence fails to support the assertion. The abuse report lists 18 children as being present in the home during the investigation. Pamela Gary testified that five of the children identified as being residents of the home were visiting on a particular day to swim in the Gary pool when the investigator came to the house. The five visiting children were not residents of the home. Ms. Gary's testimony was not contradicted and is accepted as credible. Of the remaining 13 children, six were the biological or adopted children of the Petitioners, leaving seven foster children. The number of children in a foster home can exceed the permitted number through a system of waivers from licensed capacity that considers familial relationships between children and previous foster care placements. Neither of the Respondent's witnesses credibly testified that the number of actual residents in the Petitioners' foster home exceeded their licensed capacity including waiver placements. The investigator cited the upstairs portion of the Petitioners' home as being unclean and with the odor of urine. Pamela Gary testified that the only part of the house located on the second floor were bedrooms occupied by two teenaged girls and that the girls may not have picked up their clothing. Ms. Gary testified that the odor of urine was likely related to a cat litter box that had not been cleaned that morning. Ms. Gary's testimony was not contradicted and is accepted as credible. The investigator cited the Petitioners' pool as unclean. Pamela Gary testified that the pool liner was black, and that the pool was not unclean. Ms. Gary's testimony was not contradicted and is accepted as credible.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent enter a Final Order dismissing the proposed revocation of the Petitioners' licensure to provide foster care. DONE AND ENTERED this 13th day of May, 2003, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM 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 May, 2003. COPIES FURNISHED: Michael Gary Pamela Gary 33025 Ranch Road Dade City, Florida 33523 Frank H. Nagatani, Esquire Department of Children and Family Services 11351 Ulmerton Road, Suite 314 Largo, Florida 33778-1630 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
Findings Of Fact The Respondent, Jeanette Dilligard, is licensed to operate the Dilligard Foster Home for children located at 1751 N.W. 76th Street in Miami, Florida. In the summer of 1985, W. T., age 11, L. I., age 9 and P. F., age 8, were placed in Ms. Dilligard's care by DHRS. While the children were in Ms. Dilligard's care, they were frequently and consistently given physical punishments and beatings. Each child would receive some form of physical punishment at least once a week. Ms. Dilligard used an electrical extension cord and a white belt when administering the beatings. The beatings would last about 5 minutes, sometimes leaving cuts and bruises on the children. The punishments were usually administered for fairly insignificant transgressions by the children. On one occasion, Ms. Dilligard had taken the children with her to a laundromat and L. I. accepted a piece of chewing gum from another person that was there. When Ms. Dilligard and the children returned home, L. I. was given a beating for "accepting food from a stranger." On another occasion, P. F. was eating sunflower seeds and left some of the empty shells on the floor. Ms. Dilligard administered a beating to P. F. for that offense. On yet another occasion, P. F. received a beating when she brought home a bad school report card. On November 19, 1985, W. T. lost a key to the house which he was given by Ms. Dilligard. Ms. Dilligard had previously told W. T. that if he lost the key, he could be given a beating. That evening, W. T. and his two sisters planned that they would run away from Ms. Dilligard's home the next day. On the morning of November 20, 1985, the three children ran away and went to their aunt's house. After the children left Ms. Dilligard's home, they were interviewed by the child protection team in Dade County and taken to Jackson Memorial Hospital for a medical examination. The physician's report indicated that both P. F. and L. I. had multiple bruises, scratches and abrasions on their legs and back which were non- accidental type injuries consistent with their allegations of physical beatings. Prior to receiving her license to operate a foster home, Ms. Dilligard was specifically advised, during a Foster Parent Training Program, of DHRS' policy that any form of physical punishment in the foster home setting was prohibited.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is, RECOMMENDED: That Jeanette Dilligard's license to operate a family foster home be REVOKED. DONE AND ORDERED this 12th day of January, 1987, in Tallahassee, Florida. W. MATTHEW STEVENSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of January, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-1907 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in substance in finding of fact 3. Adopted in substance in finding of fact 4. Adopted in substance in finding of fact 4. Rejected as subordinate. Adopted in substance in finding of fact 4. Adopted in substance in finding of fact 5. Rejected as subordinate. Rejected as argument. Rejected as argument. Rejected as argument. Rejected as subordinate. Rejected as a recitation of testimony. Adopted in substance in finding of fact 5. Rulings of Proposed Findings of Fact Submitted by the Respondent (None Submitted) COPIES FURNISHED: Leonard T. Helfand, Esquire Department of Health and Rehabilitative Services 401 Northwest 2nd Avenue, Suite 790 Miami, Florida 33128 Jeanette Dilligard 1751 Northwest 76th Street Miami, Florida 33147 William Page, Jr., Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 Steven W. Huss, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 =================================================================
The Issue Whether Petitioner is disqualified from employment in positions requiring him to work with children or the developmentally disabled and, if so, whether he is entitled to an exemption from such disqualification.
Findings Of Fact Petitioner's employer, Youthland Academy Child Care Facility, is a day care facility that works with children. The employer submitted Petitioner's name to Respondent for a background screening pursuant to Section 402.305(2)(a), Florida Statutes. The background screening reflected that Petitioner had an extensive arrest record between June 1983 and January 1999. The screening also reflected that Petitioner was convicted of a battery in violation of Section 784.03, Florida Statutes, on April 25, 1994. The underlying offense was an act of domestic violence against the person of April Cox (the mother of a child by Petitioner) on November 17, 1994. The screening further reflected that Petitioner was convicted of a battery in violation of Section 784.03, Florida Statutes, on November 6, 1997. The underlying offense was an act of domestic violence against the person of Tanya Anne Austin (also the mother of a child by Petitioner) on June 15, 1997. A charge of violating an injunction against domestic violence was nolle prossed as part of a plea agreement. On April 21, 2000, Respondent attempted to notify Petitioner in writing that he may be ineligible for continued employment in a position of special trust working with children or the developmentally disabled because of the acts of domestic violence on November 17, 1994, and June 15, 1997. That certified mailing was not picked up by Petitioner. Thereafter, on June 5, 2000, Respondent re-mailed the notification letter to Petitioner at his place of employment. The notification letter advised Petitioner of his rights to an exemption hearing, but required that he request such hearing within 30 days from his receipt of the letter. The notification letter also advised Petitioner that he could request a formal or informal hearing to challenge the accuracy of his criminal record. As of August 10, 2000, Petitioner had not responded to Respondent's letter of June 5, 2000. On that date, Ms. Barton advised the director of Youthland Academy that Petitioner had been disqualified from working with children or the developmentally disabled. On August 16, 2000, Petitioner responded to Ms. Barton's letter stating that he had misunderstood the notification letter, that he wanted to explain the circumstances of the two incidents of domestic violence, and that he wanted a hearing. Petitioner did not dispute the accuracy of his criminal record at the final hearing. Although Petitioner presented testimony as to the circumstances involved in each conviction at issue in this proceeding, that evidence merely confirmed that each incident constituted domestic violence. Petitioner failed to establish that he should not be disqualified from working with children or the developmentally disabled, that he has been rehabilitated since his last criminal conviction, and that he would not present a danger if continued employment is allowed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order finding Petitioner is disqualified from working with children or the disabled. It is further RECOMMENDED that the final order find that Petitioner is not entitled to an exemption from that disqualification. DONE AND ENTERED this 12th day of February, 2001, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 12th day of February, 2001. COPIES FURNISHED: Kalvin T. Davis 2100 Northeast Third Court Boynton Beach, Florida 33435 Colleen Farnsworth, Esquire Department of Children and Family Services 111 South Sapodilla Avenue Suite 201 West Palm Beach, Florida 33401 Virgina A. Daire, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner's license to operate a family daycare home should be suspended based upon the Petitioner's husband's plea of nolo contendere to a disqualifying second degree felony.
Findings Of Fact The Petitioner, Sislyn Gonsalves, has operated a family daycare home at times pertinent hereto, including in 2005 up through the time of the hearing, pursuant to license number F12V00010. The family daycare home is located at 2820 Lake Helen Osteen Road, Deltona, Volusia County, Florida. The Petitioner and her husband Clayton A. Gonsalves have had repeated disciplinary problems with their 13 year old son, K. G. K. G. had been repeatedly in trouble at school and may have been involved in an incident involving a theft, of which his parents became aware. On or about April 16, 2005, an incident occurred in the Petitioner's home. The Petitioner's husband Clayton Gonsalves and the Petitioner were trying to leave for church that morning and to persuade their son K. G. to attend church with them. An argument between the son and Mr. Gonsalves ensued. During the incident Mr. Gonsalves picked- up a short piece of light weight PVC pipe, approximately three feet by three quarter's of an inch, and struck his son several times on the left shoulder and the right hand. The persuasive evidence in this case is that the blows with the light weight PVC pipe did not leave marks. The son, K. G., being angry and upset at the time, abruptly left the family premises. The Petitioner and her husband and other child thereupon preceded to attend church. Later that day, after the incident had apparently been reported to the police, the police arrested Mr. Gonsalves and charged him as having committed child abuse. On or about May 11, 2005, Mr. Gonsalves entered a plea of nolo contendere on a charge of aggravated child abuse, which is a second degree felony. This resulted from the incident described above. As a result of that plea Mr. Gonsalves was sentenced to a term of three years of probation, and adjucation was withheld. As a condition of his probation he was ordered to have "no violent contact" with the victim, K. G., and to "comply with the Department of Children and Family's conditions and case plans." Mr. Gonsalves works in the State of New York as a plumber. He returns to his family residence, to be with his family, whenever possible, between jobs. He resides there with the Petitioner and their children at such times. He is often present in the family residence while the Petitioner is providing daycare for other children and often assists her in providing care for the children. The unrefuted, persuasive evidence adduced by the Petitioner through her testimony and that of her witnesses establishes that she and her husband are loving parents who do not maintain an abusive home. They treat their own children and the children they provide daycare for, as clients, in a loving, responsible and positive way. The Petitioner is in the process of earning her college degree in Early Childhood Education and desires to continue in the business of providing daycare. The lack of an abusive climate in the home is borne out by the fact that the Petitioner's and Mr. Gonsalves's children are in the gifted program in school, and by the fact that K. G.'s grades and scholastic standing at school have marketedly improved since the incident in question. The Petitioner's witnesses, particularly her mother, described Mr. Gonsalves as a loving husband and father who does not commit abuse, who does not drink, smoke or abuse his wife or children. Witness Ayallo, the agency's Licensing Inspector, established that the Petitioner's family daycare home is always in compliance with relevant regulatory rules and statutes, and he corroborated the Petitioner's testimony concerning the history of disciplinary problems caused by her son. Witness Surgine, the Agency's Licensing Specialist established that the Agency only wanted to suspend the licensure because of the fact that the husband, Mr. Gonsalves, would, on occasion, be present in the home when child clients are present. The Agency did not feel that the incident justified a revocation of license. This is an unfortunate, isolated incident. The persuasive evidence of record shows that Mr. Gonsalves is not an abuser of his children, the children of others or his wife, the Petitioner. The Petitioner is operating her facility as an exemplary family daycare home and desires to continue to do so. Even though she and her family are enduring rather straitened financial circumstances, she is successfully pursuing a college degree in Early Childhood Education. The testimony of Ms. Corchado, whose son has been cared for by the Petitioner in excess of three and one-half years, corroborates the exemplary record and caring atmosphere maintained by the Petitioner in operation of her family daycare home. Ms. Corchado has tried many daycare facilities and believes that the Petitioner's is the best one she found in terms of providing a loving, positive, environment for her son. Her son "adores the Petitioner and her family" and has become very close to them, even attending church with them on occasion. The Petitioner helps her son with his school work and Ms. Corchado has never observed or learned of any abuse occurring in the home. The incident which occurred with Mr. Gonsalves and his son is clearly an isolated unfortunate occurrence. It was deeply regretted by all concerned even before the Agency Respondent became aware of it. It is ironic that the Petitioner, who has conducted an exemplary child care facility operation, has been placed at risk for losing her licensure status while other child care facilities licensed by the Respondent with more violations of record which can impinge on the adequate care of children can remain licensed under corrective plans and procedures. The Agency, commendably, has recognized the unjust, automatic operation of the statute at issue herein, in terms of the Petitioner's particular circumstances and incident, by declining to seek revocation of licensure but merely suspension until the issue of Mr. Gonsalves's residence in the daycare facility is resolved. In any event, this was unfortunate effort at child discipline which became a little too heated and went awry. As the Petitioner pithily and eloquently put it, "If you don't discipline your children, they will grow up and the police will do it for you."
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Department of Children and Family Services suspending the license of the Petitioner for the above found and concluded reasons but that the suspension be stayed while, under appropriate Department supervision, the Petitioner and Mr. Gonsalves resolve the issue of his residence within the family daycare home location possibility of the licensed daycare home being re-located to another premises or while Mr. Gonsalves acts to secure an exemption (if successful) from the above-referenced disqualifying offense. DONE AND ENTERED this 4th day of January, 2006, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with Clerk of the Division of Administrative Hearings this 4th day of January, 2006. COPIES FURNISHED: Gregory Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Sislyn Gonsalves 2820 Lake Helen Osteen Road Deltona, Florida 32738 George P. Beckwith, Jr., Esquire Department of Children and Family Services 210 North Palmetto Avenue, Suite 440 Daytona Beach, Florida 32114-3269
The Issue Whether Petitioner's June 1, 2007, application for registration as a family day care home, pursuant to Section 402.313, Florida Statutes, may be granted.
Findings Of Fact DCF's August 8, 2007, letter denied Petitioner’s June 1, 2007, application to register to operate a family day care home due to a verified abuse report of exploitation by Petitioner of her elderly mother; Petitioner's personal history of mental health issues; and a circuit court’s failure to approve Petitioner as an alternative long-term caretaker of her grandchildren in connection with an abuse or neglect investigation and dependency case brought against the children's mother. Unlike licensed family day care homes and facilities, registered homes are not subject to pre-licensure inspection, periodic or surprise inspection after licensure, or DCF monitoring after children are placed in the home. Therefore, in consideration of applications for registration as a family day care home, DCF is particularly careful to make sure that there is nothing in an applicant’s background that would indicate a potential risk for children left in the applicant’s care.1/ Accordingly, DCF conducts a background check that includes its central hotline computer system as well as criminal background checks, pursuant to Chapter 435, Florida Statutes. Marsha Carpenter conducted the screening of Petitioner's application. Her search turned up two prior cases in which Petitioner had been named as a responsible party in the final decisions. FPSS 2004-012525-01, received by DCF on May 7, 2004, was closed with verified findings of exploitation by Petitioner of an elderly, vulnerable adult, who was Petitioner’s mother. This is the only FPSS report referred-to in the Agency’s denial letter. At hearing, evidence was also received concerning FPSS 2004-405767-01, received by DCF on August 27, 2004. No explanation was offered as to why this report, which returned a verified finding of “inadequate supervision” of her three-year- old granddaughter against Petitioner, was not mentioned in DCF’s denial letter. Even with the testimony of the investigator in FPSS 2004-012525-01 (elderly exploitation), much of that report does not even rise to the level of hearsay consideration permitted by Section 120.57(1)(c), Florida Statutes. Therefore, it cannot be relied upon in its entirety here. The credible evidence presented herein, including numerous admissions by Petitioner, support a finding that Petitioner was successively hospitalized in two separate mental health facilities for two separate short periods between May 4, 2004, and June 10, 2004, and that these two short hospitalizations were a result of the great stress Petitioner had endured in caring for her mother, who had just suffered a stroke, and in caring for her brother, who had suffered from a debilitating illness which ultimately caused his death on May 24, 2004. Petitioner thought she may have been hospitalized three times, instead of two times, and testified without refutation that the hospitalizations occurred because she was unable to care for herself in her great grief. Upon the totality of the competent credible evidence, it is further found that during the period addressed by FPSS 2004-012525-01, Petitioner was operating under a legitimate power of attorney from her mother and was also either a legitimate co-signor on her mother's checking account or legitimate co-payee on her mother's government checks. During this period, Petitioner used a check to access her mother's money so as to pay all, or some, of her own utility bill. In mitigation of this diversion of her mother's funds, Petitioner intended that another check of Petitioner's own would be used to pay all, or some, of her mother's nursing home expenses, thereby making-up the deduction of her mother's money she had used for her own utility payment. However, neither her mother's money nor Petitioner's own check reached Petitioner's mother's nursing home, and Petitioner's mother’s nursing home expenses were not, in fact, paid by Petitioner. While Petitioner attributed her failure to pay the nursing home to loss of money from her own checking account, due to her own check, and/or due to her mother's endorsed government check having been cashed by a third party without Petitioner's authorization, there still remains no evidence that Petitioner ever made good on paying her mother’s expenses at her mother’s nursing home. FPSS No. 2004-405767-01, relates to a later date in 2004, when Petitioner's grandchildren, a boy and a girl, were staying with her. Petitioner admitted that she left the children alone and unsupervised in her yard while she went to answer her phone. Petitioner maintained that she was only away from the yard for five minutes and stated that she, herself, rather than a neighbor, as stated in the FPSS report, had summoned the police. However, Petitioner also admitted that the period of time she left her grandchildren unattended had been sufficient for an older neighborhood boy to solicit oral sex from her three-year-old granddaughter. Based on the evidence as a whole, it is not credible that the grandchildren were left alone for only five minutes, but even so, Petitioner conceded that molestation, or even kidnapping, could have occurred in the period of time the children were left unsupervised, even if that period had been only five minutes. On a subsequent occasion, M.P.'s grandchildren were taken into custody in connection with a DCF abuse/neglect investigation of their mother, Petitioner's daughter. Due to Petitioner’s mental health history, the two prior FPSS reports, and the criminal history of an uncle living with Petitioner at the time, DCF did not recommend to the circuit court that Petitioner be considered for long-term placement of the grandchildren. The circuit court placed the grandchildren with a neighbor and friend of Petitioner instead of with Petitioner. During the extended period of time that Petitioner's grandchildren were fostered by Petitioner’s neighbor and friend, Petitioner paid their room and board and regularly visited them in the foster mother's home. The foster mother is an old friend of Petitioner and a member of her church. She testified to Petitioner's honesty, kindness, and love of her grandchildren. Since 2004, Petitioner has been taking psychotropic medication for her mental health, but she presented no medical evidence about the effects of this medication or whether she is safe to be around children while she is taking it. Petitioner presented credible testimony and supporting evidence that since 2004, she has regularly worked as a Certified Nursing Assistant (CNA) without any reported incidents of neglect, abuse, or exploitation of patients. The credible evidence demonstrated she has been a licensed CNA for 23 years, not the 30 years she testified to.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Children and Family Services denying registration at this time, while clearly setting out that Petitioner is free to reapply at any time. DONE AND ENTERED this 8th day of February, 2008, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of February, 2008.
The Issue The issues to be resolved in this proceeding concern whether the application submitted by the Petitioner for a new one-year license for Small Fries Day Care, Inc., should be granted, or denied based upon violations of specified statutes and rules referenced below as alleged by the Respondent. It must also be resolved whether the application to operate a new facility known as the Growing Tree Learning Center and Nursery should be denied because of the same alleged instances of non- compliance with the relevant statutes and rules.
Findings Of Fact The Petitioner operates a child care facility known as Small Fries Day Care, Inc. She also has applied for a license to open a new facility known as the Learning Tree. The Department notified the Petitioner, by letter of July 23, 2004, that the application submitted for a new one-year license for Small Fries was denied. The letter of denial was based on violations of statutes and rules enforceable by the Department, which were purportedly discovered during the inspections of the facility in April, May, and July of 2004. Thereafter by letter of August 3, 2004, the Petitioner was notified that her application for a license to operate a second child care facility known as the Growing Tree Learning Center and Nursery was also denied, based upon the history of alleged violations and non-compliance with statutes and rules during the operation of the Small Fries. The Petitioner requested a formal administrative proceeding to contest both decisions and the matter was referred to the Division of Administrative Hearings. The two cases were later consolidated into the instant proceeding. The Department received a complaint regarding transportation of children. It therefore dispatched an investigator, Judy Cooley, to conduct an inspection of the Petitioner's facility on April 6, 2004. The precise nature of the complaint was never substantiated. Ms. Cooley, however, upon conducting her inspection, discovered a violation of Florida Administrative Code Rule 65C-22.001(6)(f). This is a rule which mandates that children transported in a van must be counted and that both the driver of the van and one staff member must both count the children and sign a transportation log verifying that all children had exited the van. This is required to be done each time children leave or board the van. The failure to document an inspection of the van by both the driver and another staff member to ensure that all children are accounted for and out of the van is considered to be a major violation of the Department's rules and policy. The purpose of that requirement is to prevent children from being accidentally left in a van in the hot sun (or left at some location away from their home or the Petitioner's facility when the van departs a location.) If a child is left in a van in the hot sun a serious injury can result, rendering this infraction a serious one. Ms. Cooley also determined that a violation had occurred concerning the "background screening" requirements upon her inspection on April 6, 2004. That is, the Petitioner's records did not show that screening had been done for all personnel employed by the Petitioner's facility. On May 11, 2004, another investigation or inspection of the facility was conducted by the Department. This was because the Department had received an anonymous abuse report concerning the Petitioner's facility. Upon investigation it was determined that the report was unfounded. It had been alleged that a child had sustained an eye injury while in the custody and care of the Petitioner, but that was determined not to be the case; rather, the eye problem was determined to have been "Sty" infectious process and not a result of any injury sustained while a child was in the care of the Petitioner or her staff members. The Petitioner was also charged with a violation regarding this eye injury issue for failing to file an "incident report" concerning it and failing to give a copy of the report to the child's parent the same day of the incident. This violation has not been proven by the Department because, in fact, no injury occurred. The child had to have appeared on the premises of the Petitioner's facility that day already suffering from the eye condition. Therefore, there was no "incident" occurring on the premises of the Petitioner, or while the child was in the Petitioner's care. Therefore, there could be no incident requiring reporting to the Department and the parent under the Department's rules and policies. Apparently, the owner of the facility, Ms. Carter, later provided a copy of an incident report in the belief that the Department required it. In any event, this purported violation was not shown to have legally or factually amounted to an incident or a violation. As to that May 11, 2004, inspection or investigation, however, the Department's evidence derived from that May 11, 2004, inspection which was not refuted establishes that the Child Protective Investigator (CPI) who conducted the investigation observed other violations. The investigator noted that the staff was failing to adequately supervise children and that the staff had not had required training. The CPI found that after observing the day care facility on three different occasions in a two-week period, there were always children "running around," not in their classroom and without staff providing supervision of them. The CPI noted prior reports for inadequate supervision and noted that some of the staff had not been trained in all of the required hours for teachers required by the Department's rules. These findings by the CPI were supported by unrefuted evidence adduced by the Department at hearing, and accepted as credible. Ms. Cooley returned to the facility to conduct a follow-up inspection on July 23, 2004. This inspection was specifically related to the pending application filed by the Petitioner for a renewed one-year license for the facility. Ms. Cooley prepared a list of activities, conditions, or records as to the facility, its operations, the children, and the staff personnel, for purposes of indicating whether those checklist items, based upon Department rules, had been complied with or had not been complied with. There were a total of 63 specific requirements under the Department's statutes and rules for Ms. Cooley to employ in inspecting the facility. Ultimately, she found that the facility was in non-compliance on 11 out of the 63 items. Ms. Cooley thus determined on this visit that the required staff-to-child ratio was improper. The facility was out of compliance on this issue by having only one staff member supervising the "infant room" with one child less than a year old, and five children aged one year. The number of staff needed is controlled by the age of the youngest child in a group. Two staff members were required in this instance instead of one. Ms. Cooley also found, as a minor violation, that the facility had an open door with no screen, with only a curtain covering the opening and that children were sleeping on the floor on only towels instead of the required individual sleeping mats (minimum one inch thick.) The owner of the facility, Ms. Carter, however, testified that indeed the mats were in use but were covered with towels and therefore they were not readily visible. It is thus difficult to determine whether all the children slept on required sleeping mats or some of them, or none of them. The testimony in this regard at least roughly amounts to an equipoise, and it is determined that this violation has not been established. Another violation Ms. Cooley found to have occurred was that there were no records which would establish that the facility had conducted required fire drills for one and one-half months. Child care facilities such as this mandatorily must conduct at least once a month fire drills. They mandatorily must document each fire drill in a record for ready inspection. Ms. Cooley also found that there was no record proof of enrollment by staff members in the required 40-hour training course which all employees must undergo within 90 days after they are hired. The facility also had been cited for this violation on the April 6, 2004, visit. It remained uncorrected during the interim and on the day of Ms. Cooley's second visit. Another violation was found on this occasion in that, for the number of children present in the facility, there must be at least two staff members who have the necessary child development associate credentials. There was only one staff member who had those necessary credentials. There are also no records to establish that the required in-service training for staff members had been conducted. The additional three violations found by Ms. Cooley involve the failure to maintain required records concerning child immunizations, staff personnel records, and background screening records establishing that background screening had been properly done. If that required information is not appropriately filed and available at the facility, that in itself is a violation. If the file record was required to document compliance with some requirements, such as staff training, the absence of the documentation results in a presumption that there was no compliance. The lack of adequate staff in the infant room necessary to meet the statutorily required staff-to-child ratio, as noted on the July 23, 2004, inspection, is a major violation under Department rules and policies. Direct supervision is mandated for children of that age at all times. The maintenance of this staff-to-child ratio is considered to be so important by the Department that its staff are not allowed to leave a facility if an improper staff-to-child ratio (inadequate) is found to exist until the problem is corrected. The failure to keep records establishing timely compliance with background screening requirements for staff of the facility, provided for in Chapter 435, Florida Statutes, was found on the April 6, 2004, inspection and found to still exist at the time of the July 23, 2004, visit. The same factor was true with regard to the requirement that new staff be enrolled in the mandatory 40 hours training program within 90 days of being hired. The failure to correct these problems concerning background screening and training and the documenting of it, between April 6, and July 23, 2004, becomes even more critical when one considers that Ms. Carter, the owner of the Petitioner, had been provided with technical assistance by Ms. Cooley designed to help her bring her facility into compliance in all respects at the April 6, 2004, inspection visits. These violations concerning the background screening, training requirements and then documentation are considered to be serious infractions by the Department in its interpretation of its rules, and in the carrying out of its policies. In summary, although one or two of the violations were not proven and at least one, such as the failure to have a screen on a door, was not established to be a serious violation, the established violations do show an overall pattern of disregard of statutes and rules adopted for the safety, health, and welfare of children entrusted to the care of such a child care facility owner and operator. That this was so, even the Petitioner was informed of and counseled regarding the violations. Some of them remained in non-compliance or at least again in non-compliance, upon the second inspection visit. It is not enough that the operator or owner of the facility provided the required documentation later after its absence is discovered or that she corrected the training, background screening, and other violations after they were discovered. The statutes and rules which apply require that such operations be done correctly at all times, and that performance be timely documented at all times. The keeping of documentation in the facility's records concerning the violative items referenced above is not required for mere hollow bureaucratic convenience, but rather, because the Department has a very high standard of public trust in ensuring that children in such facilities are maintained in a safe fashion. It must have available, for ready inspection, at all reasonable times, the documents which support that the duties imposed by the various relevant statutes and rules are being properly carried out, so that it can know, before severe harm occurs to a child or children, that they might be at risk. These established violations contribute to the overall pattern, shown by the Department, of an habitual disregard of the statutes and rules adopted and enforced for purposes of the safety of the children entrusted to the care of the Petitioner (or at least timely compliance). Indeed, prior to the denial of a new one-year license for Small Fries and the denial of initial licensure for the proposed Growing Tree Facility, the licensing supervisor, Ms. McKenzie, conducted a review of the licensing file of the Petitioner. Ms. McKenzie thus established in the evidence in this record, that the file reflected repeated past violations involving failing to adequately supervise children and concerning the background screening and training and timely training of employees. Upon completion of each inspection involved in this proceeding Ms. Carter, the operator, was given a copy of the report or checklist prepared by Ms. Cooley. She was given an opportunity at that point to respond to it or to write any comments thereon. On neither occasion, April 6, 2004, nor July 23, 2004, were there any written comments made by Ms. Carter that disputed the fact of the violations found by Ms. Cooley. There were some notes by way of explanation or of justification concerning the hiring of a teacher "for my toddlers" etc., but the notes or explanations provided by Ms. Carter in writing and in her testimony at hearing, do not refute the fact of the occurrence of the violations delineated in the above Findings of Fact. In summary, Ms. Carter's explanations in her testimony to justify or explain the failures or the violations found above are not credible, in terms of showing that the violations did not occur.
Recommendation That having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Department of Children and Family Services granting a provisional license to Small Fries Day Care, Inc., conditioned on the holder of that license undergoing additional training at the direction of the Department, designed to educate the operator under the license regarding the proper, safe care, and protection of children in her custody, operation of a child care facility, including the proper screening and training of staff, record keeping, and the other items of concern shown by the violations found in this case. Such provisional licensure shall be in effect for a period of one year when such training shall be completed, and shall be conditioned on monthly inspections being performed by relevant Department personnel to ensure compliance with the relevant statutes and rules. It is, further, RECOMMENDED that the application for licensure by the Growing Tree Learning Center and Nursery, Inc., be denied. DONE AND ENTERED this 12th day of September, 2005, in Tallahassee, Leon County, Florida. S COPIES FURNISHED: P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with Clerk of the Division of Administrative Hearings this 12th day of September, 2005. Gregory Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Robyn A. Hudson, Esquire 3900 Lake Center Drive, Suite A-2 Mount Dora, Florida 32757 T. Shane DeBoard, Esquire Department of Children and Family Services 1601 West Gulf Atlantic Highway Wildwood, Florida 34785
The Issue At issue is whether Petitioner’s foster home license should be revoked.
Findings Of Fact Petitioner holds a bachelor's degree in social work from Florida International University. Since his graduation in December 1995 he has been steadily employed in a variety of positions which involve dealing with foster children and special education students. Davis' employment included work for the Department as a foster care counselor and a protective investigator. In addition, he has a long history of involvement in his church, including teaching Sunday school and volunteer work with youth in the community. Relatives, including a mother and sister, live in the area and are supportive of his desire to continue as a foster parent. For all these reasons, the Department held high hopes for Davis as a foster parent when he sought and received a foster home license in the fall of 2001. Notwithstanding his extensive experience with exceptionally needy children Davis was required to and did attend the 30-hour training course required of all new foster parents. Davis, like all foster parents, entered into a detailed contractual agreement with DCF which sets forth the obligations of foster parents and states that non-compliance will lead to revocation of the license. The contract is lengthy, but for purposes of this case it suffices to say that it obligates foster parents to provide adequate, age-appropriate supervision at all times. In order to assist the foster parents in fulfilling this and other obligations, DCF is contractually obligated to support foster parents in a number of ways. The foster parent must be informed in as much detail as is available to DCF of a child's special needs or limitations. If the child is taking prescribed medication, DCF is obliged to provide the medication when the child is brought to the foster home, along with instructions for administering the drug. DCF is also required to exercise professional judgment when placing a child in a foster home to assure, to the extent possible, that the foster parent is capable of managing the child. Shortly after Davis was licensed, DCF assigned to him a particularly difficult child, K.N. At the time K.N. was brought to Davis on December 4, 2001, the child, a boy, was 12 years old. Davis was informed that K.N. was on medication, but DCF did not provide the medication. Davis made several efforts to secure the medication for K.N., but he was not successful. At the time K.N. was placed in Davis' home, Davis already had one foster child, D.L. Davis had previously committed to D.L. and to other neighborhood teenagers to take them in his van to the Soul Bowl high school football game in Tallahassee on December 9, 2001. The trip was uneventful until the return drive. During the trip back from Tallahassee, K.N.’s difficult behavior irritated the other children. In the ensuing horseplay, K.N. ended up with his pants down for approximately the final hour of the return trip. Details of the incident are impossible to state with certainty. The Department presented no testimony of any individual with personal knowledge of the incident. Davis and a teenage girl who was on the trip testified to their recollections. The undersigned, having carefully viewed their demeanor under oath, credits their testimony as candid; they were clear and precise with regard to elements of the day that they did recall, and honest in stating where their recollections were imprecise. The Department repeatedly asserts that K.N. was "naked" but the use of this word, as it is commonly understood, is unsupported by any competent evidence. It cannot be ascertained from the record, for example, whether K.N. was wearing underwear as well as pants, and if so, were the underwear pulled down as well? The only direct testimony regarding whether or not K.N.'s genitals were exposed to the other children was offered by Davis, who believes that K.N.'s genitals were always covered. K.N. and D.L. denied any improper touching to DCF's investigator, according to his written report. After years of driving youth from his church and community on field trips, Davis, like anyone who drives carloads of children, had learned to filter out background noise in order to focus on safe driving. Yet, like anyone responsible for a vanload of kids, he also had to remain cognizant of behaviors in the back seat(s). At some point, Davis became aware that there was an issue concerning K.N.'s pants. Davis, as well as the teenage passengers in the car, acting on Davis' instructions, made efforts to convince K.N. to get his pants back up. K.N. refused. It was raining for at least a portion of the time while Davis was attempting to deal with the situation from the driver's seat. The testimony offered by Davis on his behalf establishes that the situation among the children, particularly K.N., could have been dealt with more aggressively and with better results. The wiser course would have been for Davis to pull over, rearrange seating, verbally re-direct K.N. and the other passengers, and, as a last resort, summon the police. It is equally clear that Davis was the only adult in the car and responsible to deliver the children home safely on a rainy day. He had tuned out the back seat noises to focus on driving when it seemed reasonable to do so, and, once aware of the situation with K.N.'s pants, decided to manage it as best he could from the driver's seat and get everyone back home as quickly as possible. The situation was resolved when Davis drove his van to the north Dade home of Davis’ sister, who had a good rapport with K.N. K.N. complied promptly with her instruction that he get himself properly dressed. Soon after the trip, K.N. related a lurid and untruthful version of events to a third party. A complaint against Davis to the state's child abuse hotline resulted. Davis felt mistreated by the DCF investigator who was dispatched to look into the allegations. Davis perceived that the investigator had prejudged the complaint and deemed Davis to be guilty of participating in and/or allowing sexual abuse of K.N. Rather than complain to the supervisor of the investigator who offended him, Davis made another bad decision---he refused to honor the investigator's request that he provide the names and whereabouts of the other passengers in the van. Davis' failure to provide this information immediately was not deemed by DCF as a serious enough offense to warrant immediate removal of the foster children. Nor did it prejudice DCF in these proceedings, for Davis did provide the names to DCF well in advance of the final hearing. Davis' refusal to provide the names when first asked to do so was self-defeating in the extreme, for the passengers were in a position to corroborate what the investigator was told by both foster children: that Davis had not provoked the removal of K.N.'s pants, and had made efforts to ameliorate the situation as soon as he became aware of it, and was successful to the extent that the other children cooperated with his request to encourage K.N. to pull his pants up, which K.N. was fully capable of doing. The Department contends that "there is no amount of additional training or any other remedial action (short of license revocation) that would alleviate the Department's concern about [Davis'] ability to provide proper care and supervision to foster children." This contention is rejected for two reasons: First, although the substance of DCF's investigation was completed by December 12, K.N. remained in Davis' home until December 17, at which time Davis realized that he was not capable of handling K.N.'s behaviors and returned him to the custody of his foster care counselor. Second, Davis requested and received DCF's permission to keep his other foster child, D.L. "through the holidays." That time frame was generously interpreted by DCF staff; they did not take D.L. from Davis' care until February 8, 2001. Davis is appropriately regretful that he was not adequate to the task at hand on December 9. He also understands the inappropriateness of failing to fully cooperate with DCF's investigation in a timely fashion. Although the future is impossible to predict, it is reasonable to credit Davis' word that he has learned from these mistakes. Davis is willing to unconditionally accept additional training, supervision, and assistance from DCF.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue a final order dismissing the April 1, 2002, charges against Davis. DONE AND ENTERED this 9th day of September, 2002, in Tallahassee, Leon County, Florida. FLORENCE SNYDER RIVAS 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 9th day of September, 2002. COPIES FURNISHED: Travis Davis 2922 Northwest 92nd Street Miami, Florida 33147 Rosemarie Rinaldi, Esquire Department of Children and Family Services 401 Northwest Second Avenue Suite N-1014 Miami, Florida 33128 Paul F. Flounlacker, Jr., Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josefina 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
