The Issue Whether the Petitioner's application for licensure as a Residential Foster Care Home should be granted.
Findings Of Fact Petitioner, Patricia Rovai, was first licensed by Respondent as a Developmental Services Residential Foster Care Home in 1989. Additionally, since 1975, Petitioner was and continues to be a Licensed Practical Nurse. Ms. Rovai specialized in providing foster care to children participating in the Medically Complex Children Foster Care Program. On January 18, 1996, a meeting was held between Donna Mims, head of foster care licensing for Developmental Services, and Petitioner and her husband. The meeting was held in regards to the conditional license which had been issued to Petitioner and was due to expire on January 31, 1996. During the meeting, Ms. Mims informed Petitioner that she was qualified to receive an ordinary foster care license and could receive such a license. However, Children’s Medical Services was not willing to designate, certify, or endorse Petitioner for participation in the medical foster care program. She therefore, would not be able to provide foster care to a medically complex child. At the conclusion of the meeting and in part due to the fact that Petitioner was exhausted after living through two successive hurricanes, Petitioner chose to allow her license to expire. Respondent admits that, other than the allegations set forth in its 1996 licensure denial letter, Petitioner is qualified to be licensed as a developmental services foster home. Around July 1996, Petitioner submitted an application for licensure as a developmental services foster home under Chapter 393, Florida Statutes, and Chapter 10F-6.009, Florida Administrative Code. On August 21, 1996, Respondent notified Petitioner by letter that her application had been denied. The letter denying a new license to Petitioner addresses several concerns of the Department based on Petitioner's past performance as a medical foster parent. The letter specifically referred to Petitioner's alleged problems with her foster child's school attendance, cooperation with Departmental staff or therapists assigned to her foster child, failure to utilize or inappropriate use of community resources and skilled nursing care, failure to encourage parental involvement or reunification, failure to encourage the child to achieve, and failure to share information regarding parental involvement with the Department. The letter cited Rule 10F-6.009, Florida Administrative Code, dealing with foster parent responsibility and training of the foster child. In general, foster care providers are subject to the promulgated rules applicable to foster care facilities and caregivers contained in Chapter 10F-6.009, Florida Administrative Code. These are the only rules applicable to foster care licenses for developmental services foster care or medically complex foster care. Whether a licensee provides medically complex foster care seems to depend on whether the licensee is designated, endorsed, or certified by Children's Medical Services. Children's Medical Services was part of Respondent, but is now part of a different agency. The evidence was unclear on the exact legal process for becoming a medical foster care parent. Even the various agencies involved seemed confused regarding the licensure status of a medical foster care parent. The licensure requirements set forth in Chapter 10F-6.009, Florida Administrative Code, are separate from the Statewide Operation Plan, which is not a rule. In fact, the Statewide Operation Plan specifically states at Chapter 7, page 4 that "failure to meet the requirements for Medical Foster Care does not necessarily affect their license as a 'traditional' foster parent." No administrative rules have been promulgated for the medical foster care designation. However, the effect of the medical designation upon a foster home license is to allow the foster home to become a Medicaid provider and be paid for their service from Florida's Medicaid program. The payment from Medicaid for the medical foster care designation is approximately $2,000.00 per month per child. The foster home also receives $440.00 per month per child from developmental services. The vast majority of children in the medically complex program live with their biological families. When a child needs to be placed in a medical foster home, the skills of the medical foster parent are matched to the child’s needs. The program looks at whether the medical foster parent is trained, licensed, and credentialed to meet the needs of a given child. If a medical foster care parent lacks a skill a potential placement might require, then the foster parent is given training to develop that skill. All the foster care parents assigned medically complex children have some background in the medical field. In February of 1989, at about two-years old, Adam Ingram was placed into Petitioner's care as a participant/patient in the Medical Complex Children Foster Care Program within the Developmental Services Program of Respondent. Dr. Rex Northup, the Medical Director for the Medical Foster Care Program, considered Adam Ingram to be one of the higher level of care children in the Medical Foster Care Program. Specifically, Adam Ingram was born with and continues to suffer from myotonic dystrophy. Myotonic dystrophy is a congenital disorder that affects neuromuscular formation and has an extensive impact on other bodily systems. Adam Ingram's mother, Karen Moncrief, permanently suffers from the related condition of muscular dystrophy. Adam Ingram's congenital disorder adversely affects his central nervous system functions, muscle functions, gastro- intestinal functions, cardiac functions, and respiratory functions. In short, Adam’s muscles, lungs, heart, stomach, legs, throat, bowels, and bladder, etc., do not work well. As a result of his medical condition, Adam Ingram has a respiratory insufficiency that required a tracheostomy. He is periodically ventilator-dependent when he is asleep or ill. When not ventilated, Adam’s respiratory system must be cleared of mucous through suctioning, coughing, or throat clearing. Because of his complex and often fragile medical condition, Adam Ingram receives treatment from a neurologist, ophthalmologist, otolaryngologist, pulmonologist, cardiologist, gastroenterologist, and orthopedist. He has been hospitalized on at least seven occasions between 1984 and 1995. Otherwise, Adam has frequently been below normal health. Adam Ingram has also needed and received surgical intervention relating to his trachea tube. Because of his tracheostomy, he is at a higher risk for contracting respiratory illnesses, such as colds. He has also had problems with controlling his bowels and with voiding his bladder, causing bladder distension. Adam is not potty trained and must wear diapers. Additionally, due to his medical problems, Adam Ingram has been delayed in development of speech, vocalization, and communication skills. However, he is of normal intelligence and emotion. He can to some degree operate a computer. In sum, Adam, as a medically complex patient, is one of the higher level of care children in that he requires a great deal of direct care to manage his medical problems. He is not as unstable as some of the other children in the program that require more technological assistance and medical care. These more unstable children tend to also lack mobility, activity, and awareness. Adam, on the other hand, is quite mobile, active, and aware. He requires and demands a great deal of attention, as any young child does. Adam is simply a handful to care for. As part of undertaking Adam’s care, Petitioner was specially trained to operate various ventilators required by Adam. Petitioner also served as a demonstrator for other foster parents who required training. Judith Benford was the medical foster care nurse who had substantial contact with Petitioner and who was primarily knowledgeable in the Department as to the conditions in Petitioner's home. She rated Petitioner as satisfactory in some areas and unsatisfactory in the areas noted in Respondent's letter of denial. However, Petitioner was recommended for re- licensing by Benford around October 6, 1995, after a complete evaluation of Petitioner's performance with Adam Ingram. In November of 1995, Petitioner's license was conditionally renewed. The only specific written conditions were that she recharge her fire extinguisher and renew her CPR certification. The capacity of the home was reduced to one bed. Although not listed specifically on the conditional license, other conditions on Petitioner's license, issued in November 1995, were to develop a list of people who were interested in licensure and would be willing to care for Adam, improve Adam’s school attendance, and other “concerns” expressed at Petitioner’s and Adam’s medically handicap assessment team (MHAT) staffings. It should be noted that these unspecified “conditions” or “concerns” probably were ineffective as limitations on Petitioner’s conditional license. What is relevant for this hearing is that these conditions had been ongoing issues throughout Petitioner’s time as a medical foster parent. One major concern was Petitioner's continual request for additional help or respite care from Respondent when the resources available are limited by budgetary concerns of the Department. Because funding for extra help is limited, medical foster parents are encouraged to try to provide cross-coverage for each other, in that one medical foster parent would take care of another's children to allow the other foster parent a break or respite for an evening, weekend, or whatever. This is a reciprocal arrangement between medical foster homes. However, in the absence of an available swap between foster parents for respite care, the Department has the ability and does occasionally provide extra help to the foster parent. The problem from the Department's point of view is whether Medicaid or other Departmental funds can be and are available to pay for the assignment of extra help to a foster parent. Medicaid pays for extra help only when the medical needs of the child require the extra service. Other Departmental funds, which are often not available, pay when the extra help is needed by the foster parents because they are exhausted or ill. Nursing care requested by Petitioner on some occasions was not provided. Additionally, the medical foster parent is the primary eyes and ears for the Department regarding the medical services required by any medical foster child. For that reason the communication and feedback between the licensee and the Department has to be good, trusted, and comfortable. In May 1993, Petitioner was urged to swap respite services with other medical foster parents. Petitioner was hesitant because not all medical foster parents were trained in ventilator usage and she had a low opinion of some of the care rendered by some of the medical foster parents. At the time, at least one other medical foster parent had ventilator training. However, the evidence did not show that the ventilator-trained foster parent was able to provide respite care to Petitioner when she needed it. The Department recognized the problem with the lack of ventilator training and on July 7, 1994, all medical foster parents were given training on ventilator usage. In the winter of 1994, the department was attempting to work out respite help for Petitioner. The Department provided some respite help for 12 hours per month at $7.50 per hour. For unknown reasons, the respite was not used. Petitioner was also encouraged to obtain services through developmental services. The evidence did not show what services were available, if any. In December, 1994, the Department offered to temporarily place Adam in another medical foster home so Petitioner could get some rest. Petitioner declined because of her opinion of the poor care rendered by that foster home and the fact that the preparation for moving Adam was just as taxing as his staying. On January 10, 1995, a private duty nurse was provided by the Department. Petitioner directed the nurse to take Adam outside to swing. The evidence did not show whether any medical care was rendered during this visit. In February 1995 a private duty nurse assigned to Adam found Adam in the living room watching TV with Petitioner. At the time, no medical symptoms of significance were noted by the nurse. On March 20, 1995, Petitioner reported that Adam was coughing incessantly and needed frequent suctioning every 15 minutes. Petitioner requested additional nursing help. That same day the Department’s supervising nurse visited the home for one and one-half hours. During that time, Adam’s condition was stable; he did not cough and did not need suctioning. The Department did not provide additional nursing help. Also, sometime in March 1995, a private duty nurse was utilized to cleanup Adam’s room, linens, and bed. She also emptied the suction machine and installed a new catheter. The evidence did not show whether private duty nursing care was needed. Around May, 1995, the department lost confidence in Petitioner’s ability to determine when Adam was sick. The loss in confidence was due in part to the high number of school absences, in part to the Petitioner’s frequent requests for respite help, and in part due to the department’s suspicion that Petitioner was overstating Adam’s illnesses in order to obtain more help. In May of 1995, the Respondent instituted close supervision, monitoring, and support in an effort to prevent disruption in the placement of Adam in the Petitioner's home. During this time, the Petitioner's daughter, Dana, was providing some of the extra nursing care to Adam. School attendance was basically non-existent. Petitioner increased her request for nursing services in July 1995 after becoming aware that another child who was medically more complex than Adam was receiving additional nursing services. Petitioner, correctly, felt it was her duty to seek the best care for Adam. Between July and the end of October 1995, Petitioner was averaging around 16 hours per week of private duty nursing. During that time period, Adam was experiencing chronic bronchitis and other illnesses, in part due to the fact that his trachea tube needed to be re-seated. Sixteen hours of private duty nursing care per week for a child such as Adam is unusual but not unreasonable. In August 1995, an extra private-duty nurse was provided to Petitioner. During that time, Adam put himself in his wheelchair and went outside to swing for 30 minutes. Adam then watched TV and played pretend games in the front room. The evidence did not show whether any medical care was rendered during the nurse's visit. To resolve some of the Petitioner’s problems with inadequate help, the Department in 1995 requested that Petitioner develop a “corrective action program” to maintain the placement of the child in her home. Petitioner continuously attempted to develop a respite system by involving and or recruiting other potential foster care providers into the program. However, Adam Ingram's complex medical condition and activity level limited the availability of such respite providers. Either the recruits lost interest in pursuing licensure or qualified caretakers would observe Adam and decide he was to much to deal with. As the foster care parent to Adam Ingram, Petitioner was considered to be the primary person to evaluate Adam's health to decide whether Adam was healthy enough to attend school. However, Adam's mother, Karen Moncrief, was expected to provide six to eight hours of care per week as well as provide some respite care. At some point during Adam’s placement at Petitioner’s home, Ms. Moncrief met Petitioner’s nephew. Ms. Moncrief and Petitioner’s nephew were eventually married. Karen Moncrief has always been involved in Adam’s care. However, her involvement was often sporadic due to complications from her medical condition and complications of her pregnancy. She often would not follow through on promises of caring for Adam or promises of helping Petitioner with Adam’s care. Her involvement was inconsistent. Therefore, the reports of Karen’s involvement with Adam reflected that inconsistency. The Department concluded that the problem of inconsistent reporting or refusal to share such parental information was because Petitioner was being inconsistent in her reports on parental involvement or not including such information in her reports. The Department’s conclusion was wrong and not based on the facts regarding Ms. Moncrief’s behavior. On September 29, 1995, Adam was scheduled to go on a weekend visit to the biological parent’s home. However, Petitioner refused to permit the visit because the home was in poor condition and not suitable or safe for Adam to visit. The evidence showed other parental visits were encouraged. Also, on September 29, 1995, after Adam’s mother had once again failed to keep her promise that she would help Ms. Rovai with Adam’s care, Ms. Rovai became very upset and called Respondent to come and get Adam. She was leaving. After some conversation, Petitioner calmed down and Adam was not picked up by the Department. On October 20, 1995, Petitioner submitted a letter of resignation as the foster parent of Adam. The resignation was to be effective in 30 days. Towards the end of Petitioner's licensure, on November 15, 1995, at 9:30 p.m., Petitioner called the Department’s supervising nurse and reported that Adam had labored respiration and retraction and was generally sicker than usual. The nurse advised Petitioner to take Adam to the emergency room. Petitioner reported she was too ill and exhausted to take Adam to the emergency room. Adam’s mother was called and she took Adam to the emergency room. The emergency room exam did not reveal anything unusual in Adam’s condition and Adam was well, for Adam. On November 16, 1995, Petitioner requested that the supervising nurse come to Petitioner's home to see Adam. Petitioner also indicated she was still ill and exhausted. The supervising nurse obtained Medicaid approval for 8 hours per day of extra private duty nursing care for four days based on Petitioner's exhaustion and for support of the continued placement of Adam in Petitioner’s home until he was moved to Hattie Grant’s home. Throughout 1995, the supervising nurse visited Adam on at least 8 occasions to double check his condition against any illness Petitioner had reported. Except for one visit when Adam was febrile, Adam appeared healthy enough to attend school. However, these visits were often several hours after Petitioner’s report and usually in the afternoon, enough time for fever, nausea, or congestion to reduce with medication. The Medical Director of the Medical Foster Care Program testified that Petitioner's request for nurses and or respite care were not unreasonable given that Adam was a high-level of care and medically needy person. Petitioner was simply expected by the Department to live with the lack of assistance, keep quiet about it, and not make requests for help, except when she needed help. The double-bind demands the Department was placing on Petitioner were simply unreasonable and cannot serve as a basis for denying her application for licensure. Around the end of November 1995, Hattie Grant, a medical foster care parent, agreed to take Adam Ingram into her home. The change in foster care parents was agreed to by Adam’s mother, Karen Moncrief. Ms. Moncrief agreed for reasons she described as manipulation of her by Petitioner. However, Adam along with his mother and Petitioner’s nephew continued to see Petitioner at church and visit her at her home. The medical condition of Adam improved once in Ms. Grant’s home. He did not need as much acute care. Additionally, his school attendance increased dramatically. His manners at office visits with the doctor improved. However, this improvement could not be attributed to the change in placement or to anything Petitioner did or did not do in caring for Adam. It is very likely that the improvement was due primarily to his physical maturation. It is also very likely that re-seating his tracheal tube caused Adam’s propensity to become ill to dissipate. Ms. Grant did not require the amount of additional skilled nursing help that Petitioner had. The lessening of the need for skilled nursing help may have been due, in part, to Adam’s improved health and better attendance at school, giving Ms. Grant a break from caring for Adam. Additionally, Ms. Grant expressed serious concerns about harassment and constant scrutiny by the parents of Adam. One such complaint arose when Adam’s mother, accompanied by Ms. Rovai, took Adam to the emergency room from school. The emergency room physician could not find anything wrong with Adam. Another complaint was that Adam was losing weight. Weight loss was not borne out by any medical examination. Ms. Grant felt that she could not do anything right in the opinion of Adam’s parents. Eventually, an abuse complaint was filed against Ms. Grant. The complaint was determined to be unfounded. She was concerned about her reputation, the constant scrutiny and second guessing of her care. The parents of Adam did not testify at the hearing. The testimony from Ms. Rovai and Ms. Grant was in conflict as to the legitimacy of various complaints regarding Ms. Grant’s care of Adam and who was behind those complaints. The evidence did show that some of the complaints came from Ms. Rovai. However, the evidence did not bear out the Department’s conclusion that Ms. Rovai was illegitimately interfering with Adam’s placement at Ms. Grant’s home. At the end of the school year, around June 1996, Adam was removed from Ms. Grant’s home at her request. He was taken back to Ms. Rovai’s house. The evidence that Adam’s health or behavior deteriorated during this second stay at Ms. Rovai’s home consists of doctor’s notes from one medical examination on July 15, 1996. The doctor did not testify at the hearing. Unexplained doctor’s notes related to one visit simply do not form a basis to conclude that Ms. Rovai’s care of Adam was inadequate. Adam was not a participant in the medical foster care program while at Ms. Rovai’s house. After a short period of time Adam was reunited with his mother and remains in her care to date. Since being in his mother’s care Adam has become a stronger individual. He has shown increased joint flexibility, more ability for independent movement with braces and crutches. He continues to have less need for acute care. Additionally, his school attendance has remained fairly good. Adam continues to demonstrate good manners. Again, the improvements in Adam’s condition are likely due to his continued maturation. The evidence clearly showed that Petitioner actively assisted and cooperated with Adam's physical therapist assistant and physical therapist. Apparently the Department failed to acquaint itself with the facts of Adam's case and based its allegation of failure to cooperate on very limited and uninformative notes contained in Adam's records. In July 1995 a behavior assessment by Lakeview Hospital Special Population was arranged for Adam. The first meeting with the assessor was postponed due to Adam’s ill health. Shortly after the postponement, the assessor met with Adam and viewed him at Petitioner's home. After one visit, the assessor determined that Adam did not need the help of a behavioral specialist. The assessor suggested some behavior modification techniques which Petitioner was already utilizing. Clearly, the evidence showed that Petitioner cooperated with the behavioral specialist assigned to review Adam Ingram's behavior. The evidence also showed that the Department again did not acquaint itself with the facts of Adam's case and based its conclusions about Adam's behavior on the Department's limited contacts with Adam and very limited and uninformative notes in Adam's record. Adam’s attendance at school while in the care of Petitioner was less than 50 percent. In the semester of school beginning January 1994, Adam was seen only 10 times by the occupational therapist at school. The other major complaint regarding Adam’s care by Petitioner centered on Adam’s poor school attendance. According to competent substantial evidence provided by Adam Ingram's teacher, Vernell R. Martin, Petitioner actively sought to encourage Adam in educational activities at the Oriole Beach Elementary School. There were no staff nurses working at Oriole Beach Elementary School. The school Adam attended while living at Ms. Grant's home provided more for children with special needs. It had staff nurses and could render better medical care to Adam. He therefore could attend more often when he was not feeling well. While at school, Adam would need some suctioning through the day. He also receives gastronomy feedings and various medicines through the day. Since Adam is not potty trained he requires his diapers to be changed when needed. He would receive general physical stimulation to develop his muscles and help with wearing ankle foot orthopedic supports. Physical therapy, occupational therapy and speech therapy were provided at school. However, the evidence also demonstrated that these various therapies were also provided at Petitioner’s home either by Petitioner or through other professionals. Home physical therapy would not continue once Adam reached a plateau or refused to participate. On the other hand, therapies received at school would continue daily or weekly as established in Adam’s Independent Educational Plan. Adam was seldom sent home for medical problems at school. However, given his poor attendance, it is speculation how much he would have been sent home had he been at school. On many occasions, Adam's complex medical condition prevented him from safely attending school. At the beginning of the 1994 school year, Petitioner, at the Department’s suggestion, was going to arrange for Adam to ride the school bus to school and be picked up from school by Petitioner. Petitioner scrapped the school bus ride when she discovered that no air-conditioned bus was available to transport Adam. Adam had apparently become overheated and ill when he rode the first time on a non-air conditioned bus. On the other hand, while at Ms. Grant’s home, Adam was able to ride in a non-air conditioned bus over about a six month period, some of which was in hot weather. Still, Petitioner was capable of transporting Adam to school in her air-conditioned car. The evidence did not demonstrate that Adam was harmed by his poor school attendance. From year to year, while in Petitioner's care, Adam achieved the educational, therapeutic, occupational, and social goals established in his Individual Educational Plan. On whole, Adam is a well-adjusted child. Ms. Rovai had legitimate reasons for his absences. Given this evidence, Adam's school attendance cannot form a basis for denying Petitioner's license application. Finally, another issue raised for the first time at the hearing was whether Petitioner was suctioning too deep or too often. One bronchoscope indicated that the catheter used for suctioning had touched the trachea by being inserted too far into the tracheostomy. The evidence did not show that Respondent had given corrective instructions to Petitioner on either of these two points. Moreover, suctioning too deep is a common problem and does not reflect poor care or a failure to follow Departmental instructions. Finally, the type of catheter used by Petitioner to suction Adam had a stop on it to prevent too deep insertion of the catheter into the trachea. In short, neither of these late raised issues were established by the evidence and neither of these issues can form a basis for disqualifying Petitioner from receiving a foster home license.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the application of Petitioner be GRANTED. DONE AND ENTERED this 5th day of December, 1997, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 5th day of December, 1997. COPIES FURNISHED: Matthew D. Bordelon, Esquire Bordelon and Bordelon, P.A. 2717 Gulf Breeze Parkway Gulf Breeze, Florida 32561 Rodney M. Johnson, Esquire Department of Health 1295 West Fairfield Drive Pensacola, Florida 32501 Katie George, Esquire Department of Children and Family Services Suite 601 160 Governmental Services Pensacola, Florida 32501 Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard A. Doran, Esquire Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue at the final hearing was whether the Petitioners met the statutory criteria for licensure as a children's foster home.
Findings Of Fact Based on my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I hereby make the following findings of fact: The Petitioners, Paul and Patricia Burnette, were married in 1969 and have lived together continuously since that time. The Petitioners were previously licensed as foster home parents in the State of Florida and have had children placed in their home. During the summer of 1984, the Petitioners' became interested in adopting six (6) children, aged sixteen (16), fifteen (15), eleven (11), six (6), five (5), and four (4) years old. Because the parental rights of the natural mother had not been finally terminated, the Petitioners were advised by their case worker that they should apply for foster home care licensure. The case worker advised the Petitioners that if they were licensed for foster home care, they would be able to obtain custody of the children pending final termination of the parental rights of the natural mother. Thus, the Petitioners sought licensure to provide foster home care as a step toward ultimately adopting the six (6) children. By application dated November 1, 1984, the Petitioners, Paul and Patricia Burnette, applied for a license to provide foster-family care for children in accordance with the provisions of Section 409.175, Florida Statutes (1983). The application provided for Ms. Burnette to indicate whether or not she had been convicted for anything other than a minor traffic violation. Ms. Burnette did not indicate "yes" or "no" on that portion of the form. On October 4, 1983 Patricia Burnette was convicted in the County Court of the Ninth Judicial Circuit of Orange County, Florida of the offense of petit theft. Ms. Burnette was tried by jury and was represented by counsel. She was adjudicated guilty and placed on six (6) months unsupervised probation. Ms. Burnette was further ordered to pay a fine of $150, $15 victims compensation, $7.50 surcharge and $14 court costs within 30 days. She was sentenced to serve ten (10) days in the Orange County jail, suspended on the condition that she complete ten (10) days of alternative community service beginning October 15, 1983. Ms. Burnette was further ordered not to go onto the premises of Albertson's located at 2801 South Orange Avenue, Orlando, Florida. Ms. Burnette was represented at trial by Leo A. Jackson, an attorney licensed to practice law in the State of Florida. At the conclusion of the trial, Mr. Jackson informed Patricia Burnette that the judge had withheld adjudication. Mr. Jackson explained to Ms. Burnette that because the judge had withheld adjudication, she was not convicted of the crime. Based on the legal advice received from Mr. Jackson, Ms. Burnette believed that she had not been convicted of the offense of petit larceny. A medical history form was also included as a part of the application for licensure as a children's foster home. On the medical history form, Ms. Burnette responded "no" to the question of whether or not she had or had ever had any back pain. Prior to licensure as a children's foster home, the applicant's are required to be examined by a physician. The physician is required to complete a form entitled "Physicians Report on Adoption Applicants." As a part of completing the form, the physician requests information from the applicant concerning the applicants medical history or previous illnesses. Ms. Burnette was examined by Dr. Din On-Sun, D.O. on October 5, 1984. During the examination, Ms. Burnette did not indicate any prior back pain or any other problems related to her back. On November 10, 1978, Patricia Burnette was involved in an industrial accident and injured her back. Ms. Burnette was paid temporary total disability benefits for a period of 1,200 days and sustained a 3% permanent impairment as a result of the accident. As a result of her injury, Ms. Burnette was on crutches for two (2) years and was told that she would never walk again. Ms. Burnette occasionally still suffers from back pain and must take pain medication. Because of her back injury, Ms. Burnette did not·perform the community service which was ordered as a result of her conviction for petit theft in October 1983. From October 1983 through September 1984, Ms. Burnette continued to advise Ms. Sue Rash (the Alternative Service Coordinator responsible for arranging her community service) that she was unable to perform any community service because she was having considerable trouble with her back and needed back surgery but could not afford it. In September of 1984, MS. Rash arranged a special assignment for MS. Burnette to work approximately 2 hours per day at the Sand Lake Treatment Plant Laboratory washing glassware and doing "light cleaning up." Ms. Burnette told MS. Rash that she wanted to talk to her doctor before she agreed to do any community service. On September 18, 1984, Ms. Burnette's physician advised Ms. Rash that he didn't think that Ms. Burnette could stand long enough to wash glassware and do clean-up work at the Sand Lake Treatment Plant Laboratory. On October 13, 1984, Ms. Rash sent a letter to the judge who had originally ordered Ms. Burnette to perform the community service. Ms. Rash explained to the judge that Ms. Burnette was still unable to perform her community service and recommended that a different sentence be considered for Ms. Burnette in lieu of community service. At that point, Ms. Rash closed Ms. Burnette's file.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is, RECOMMENDED THAT: Petitioners' present application for licensure as a children's foster home be VOIDED; and, Petitioners be allowed to submit a new application so that their eligibility for licensure as a children's foster home may be evaluated by the Department of Health and Rehabilitative Services based on full and truthful responses to the inquiries contained therein. DONE and ORDERED this 16th day of April, 1986 in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day April, 1986. COPIES FURNISHED: Douglas L. Whitney, Esquire Department of Health and Rehabilitative Services 400 W. Robinson Street Suite 911 Orlando, Florida 32801 N. Diane Holmes, Esquire 209 East Ridgewood Street Orlando, Florida 32803 William "Pete" Page, Jr. Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 Steve Huss, Esquire General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
The Issue The issue for determination in these proceedings is whether Petitioner’s application for licensure of an additional group home facility should be approved by Respondent, the Agency for Persons with Disabilities (“APD”).
Findings Of Fact Respondent, APD, is the state agency charged with regulating the licensing and operation of foster care facilities, group home facilities, and residential habitation centers pursuant to section 20.197 and chapter 393, Florida Statutes. APD is charged with reviewing all applications and ensuring compliance with the requirements for licensure. Petitioner is an applicant for licensure of a group home facility. Petitioner’s representative, Marilou Burden, submitted the completed application to APD on March 29, 2017. Petitioner’s application requested licensure of an additional group home facility. The proposed name of the facility was Iyachel Group Home, to be located at 1625 Woodridge Drive, in Clearwater, Florida. Angel Child Home Care Corporation, Inc., is a Florida registered corporation. Marilou Burden is Petitioner’s corporate officer. Respondent may deny an application for licensure if the applicant has “[f]ailed to comply with the applicable requirements of this chapter or rules applicable to the applicant.” § 393.0673(2)(a)3., Fla. Stat. Based upon its initial findings of such violations, Respondent denied Petitioner’s application for licensure for an additional group home. At all times material to these proceedings, L.L. was a resident of Petitioner’s facility. COUNT I Clearwater Police Officer Geoffrey Newton testified regarding the events of February 24, 2017. Officer Newton was dispatched to Petitioner’s facility. Officer Newton testified that upon arrival at the Angel Child Home Care facility, everyone was in the front yard. Officer Newton testified that Resident L.L. was in obvious distress and appeared to be having an emotional breakdown. Officer Newton was able to immediately calm L.L. down and speak to L.L. Officer Newton stated that after speaking to L.L., L.L. was very compliant and cooperative with each request made by Officer Newton. L.L. told Officer Newton that he wanted to harm himself. Officer Newton took L.L. into custody. L.L. was ultimately held pursuant to the Baker Act. Further testimony also noted that on February 24, 2017, Mr. Joseph Burden, an auto mechanic, was also able to easily calm L.L. However, Ms. Burden and the facility staff were not able to calm L.L. The sole staff member on duty merely told L.L. to listen to music. There is no evidence that facility staff employed any other techniques in an attempt to calm L.L. After easing L.L.’s behavior episode, Officer Newton spoke to Ms. Burden. Officer Newton described Ms. Burden as “absolutely uncooperative.” Ms. Burden insisted that L.L. be arrested. Officer Newton refused to arrest L.L. for a criminal act. Ms. Burden informed Officer Newton that Ms. Burden was going to call Congress because Officer Newton was not doing his job. Officer Newton stated that it appeared that Ms. Burden does not have enough staff at the facility to ensure it provides a safe working environment for Ms. Burden’s employees. Petitioner failed to properly report the Baker Act of L.L. to APD. COUNT II Police Detective Eliad Glenn testified that on February 11, 2017, he was dispatched to Petitioner’s facility because of a call about an emotionally disturbed person. Upon arrival at the facility, Detective Glenn found that L.L. had hit himself and had suffered a small laceration on his face. L.L. indicated that he wanted to hurt himself. Detective Glenn took L.L. to a facility for emotionally disturbed persons pursuant to the Baker Act. Again, Petitioner failed to report the Baker Act of L.L. to APD. At the hearing, Petitioner attempted to demonstrate that Petitioner submitted the required incident report to APD via e-mail. However, Petitioner failed to admit the incident reporting form from this incident into evidence. Instead, Petitioner merely submitted what appears to be a screen shot of the header of an e-mail. The header of the e-mail does not indicate that the e-mail contained an attachment. Petitioner’s attempt to prove that it submitted the incident report in this manner is not credited, since the document purported to have been submitted to APD was not produced. COUNT III Clearwater Police Officer Michael Jenson testified that on July 26, 2016, he was dispatched to Ms. Burden’s facility in response to a potential battery. Officer Jenson contacted L.L. Angel Child Home Care staff informed Officer Jenson that L.L. had gotten upset and thrown furniture inside the home. Angel Child Home Care staff informed Officer Jenson that no one was injured. Officer Jenson determined that a battery did not occur. L.L. informed Officer Jenson that he did not want to go back to the home. Officer Jenson asked Angel Child Home Care staff if there was a counselor or physician available to speak to L.L. Officer Jenson was informed that no counselor or physician was available to assist L.L. Officer Jenson took L.L. into custody pursuant to the Baker Act, so that L.L. could receive assistance from a counselor or physician. Again, Petitioner failed to report the Baker Act of L.L. to APD. Similar to the February 11, 2017, incident, Petitioner attempted to demonstrate that it submitted the required incident report to APD via e-mail. However, as before, Petitioner failed to admit the incident reporting form from this incident into evidence. Instead, Petitioner merely submitted what appears to be a screen shot of the header of an e-mail. The header of the e-mail does not indicate that the e-mail contained an attachment. Petitioner’s attempt to prove that it submitted the incident report in this manner is not credited, since the document purported to have been submitted to APD was not produced. COUNT IV Clearwater Police Officer Michael Jenson testified that on July 5, 2016, he was dispatched to Ms. Burden’s facility located at 1641 Sunset Point Road. St. Michael’s Guardian Home Care (“St. Michael’s”), a Department of Children and Families group home, which is owned by Ms. Burden, reported Resident B.B. as a runaway. St. Michael’s agents or employees reported that B.B. was not welcome at St. Michael’s. Officer Jenson confirmed that the child was locked out of St. Michael’s, and B.B. stayed at Petitioner’s facility on Sunset Point Road. COUNT V On May 2, 2016, police were called to Angel Child Home Care’s facility. As a result, L.L. was institutionalized pursuant to the Baker Act. Yet again, Petitioner failed to report the Baker Act of L.L. to APD. As before, Petitioner failed to admit the incident reporting form from this incident into evidence. Instead, Petitioner merely submitted what appears to be a screen shot of the header of an e-mail. The header of the e-mail does not indicate that the e-mail contained an attachment. Petitioner’s attempt to prove that it submitted the incident report in this manner is not credited, since the document purported to have been submitted to APD was not produced.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Persons with Disabilities enter a final order denying Petitioner’s application for licensure. DONE AND ENTERED this 9th day of March, 2018, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 9th day of March, 2018. COPIES FURNISHED: Kurt Eric Ahrendt, Esquire Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) Shaddrick Haston, Esquire Suite 103 1618 Mahan Center Boulevard Tallahassee, Florida 32308 (eServed) Trevor S. Suter, Esquire Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) Gypsy Bailey, Agency Clerk Agency for Persons with Disabilities 4030 Esplanade Way, Suite 335E Tallahassee, Florida 32399-0950 (eServed) Richard D. Tritschler, General Counsel Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) Barbara Palmer, Director Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed)
The Issue The issue is whether Respondent should revoke Petitioner's license to operate a foster care home.
Findings Of Fact At all times material to this proceeding, Petitioner was licensed as a therapeutic foster parent. Respondent issued this license to Petitioner through the Devereux Foundation, which operates and maintains a network of foster homes to serve dependent children in Respondent's custody. Respondent places children in therapeutic foster when they have been exposed to a severe degree of physical, emotional, and/or sexual abuse, as well as extreme neglect and/or abandonment. Such children require special care and cannot be disciplined like children in a stable nuclear family. Therapeutic foster parents should never spank or use other physical methods of punishment or behavior management on these children. Many therapeutic foster children have acute and unresolved issues with control and authority. In such cases, attempts by authority figures to assert rigid control over the children will likely provoke emotionally charged oppositional reactions by the children. This is especially true when the children have not developed a relationship with the authority figures. The likelihood that such oppositional reactions will occur is much greater when authority figures attempt to impose their will on the children with the use of physical force. Children in foster care experience great difficulty in learning to trust others. The inability to trust others is reinforced when a near-stranger makes demands on therapeutic foster children, then uses physical force to compel submission. Children from dysfunctional families often experience violence in the homes of their natural parents. The children learn at an early age to respond with violence to stressful situations. The use of physical force on foster children thus generates a real and severe risk of physical injury to the foster children, the foster parents, and innocent bystanders. One purpose of therapeutic foster care is to help children learn that violent behavior is not acceptable. When foster parents use physical force to compel obedience, they reinforce the lessons learned in the homes of their natural parents at the expense of the lessons the foster care program attempts to teach. Therapeutic foster parents undergo special training before they become licensed. The Model Approach to Parenting and Partnership (MAPP) training that all foster parents receive places special emphasis on the emotional fragility of children in foster care and the consequent need to avoid confrontation with foster children. In other words, MAPP training teaches foster parents not to engage in power struggles with their charges. MAPP training emphasizes the use of positive discipline for the inevitable situations in which foster children test the boundaries set by the foster parents. These methods include reinforcing acceptable behavior, verbal disapproval, loss of privileges, and redirection. Any form of verbal abuse or physical force is strictly prohibited. Petitioner received all of the training described above. In March 2001, a sibling group of two sisters (S.M.1 and S.M.2) and a brother (D.M.) were living in a therapeutic foster home operated by Brad and Sharon Carraway through the Devereux Foundation. Mr. and Mrs. Carraway were licensed therapeutic foster parents. Respondent and the Devereux Foundation have a policy that allows for substitute foster care when therapeutic foster parents need some time away from their foster children. In that case, Devereux arranges for another licensed therapeutic foster home in its network to care for the foster children for a period of time, usually a weekend. This arrangement is known as respite foster care. During March 2001, the Carraways needed a weekend away from their foster children to take care of some family business. At that time, Loretta Kelly was the foster care program manager for Devereux in the North Florida area. Ms. Kelly made arrangements for Petitioner and his wife to take the children during the weekend of March 23-25, 2001. The children arrived in Petitioner's home late in the afternoon of Friday, March 23, 2001. As S.M.1 and S.M.2 settled into their room, Petitioner advised them that supper would be served in five minutes. S.M.1 then announced that she was not hungry and would not be going to supper. Petitioner replied that S.M.1 could either go to the table for supper or he would be back in five minutes and make her go to the table. Five minutes later, Petitioner returned to the bedroom. He told S.M.1, who was sitting on the bed, to come in to supper. When S.M.1 refused again, Petitioner grabbed S.M.1 by the wrists and tried to drag her into the dining room. A struggle ensued with S.M.1 yelling for Petitioner to let go. During the struggle, S.M.1's wrist watch broke, leaving scratches on her arm. S.M.2 was in the hall. Hearing her sister call for help, S.M.2 ran in to help S.M.1. S.M.2 pushed Petitioner away from her sister. Petitioner then grabbed S.M.2 by the wrists and struggled with her for over a minute. During the struggle, S.M.2 slid down to a sitting position with her back against the wall. S.M.2 then used her feet in an attempt to break free from Petitioner. The struggle left S.M.2 with a scar from a scratch she received on her arm. Petitioner finally gave up and called the girls' therapist, Lori Farkas, to complain about the situation. S.M.2 heard Petitioner state that he wanted the girls out of his home. The incident was reported to Respondent. Subsequently, Respondent commenced a child protective investigation into the allegations; the investigation was still open on April 20, 2001. Petitioner became angry when he learned what the children told Respondent's investigators. He telephoned Ms. Kelly on the afternoon of April 20, 2001. He accused the children of lying and asserted that they should be punished. He threatened to file battery charges against the children and have them arrested if they did not change their story and "tell the truth." Next, Petitioner telephoned Ms. Carraway. He told Ms. Carraway that she ought to be teaching the girls morals and honesty. He accused the girls of lying. Petitioner informed Ms. Carraway that he was going to consult an attorney and have the girls arrested at school for assault and battery. Petitioner told Ms. Carraway that he would be more believable in light of the children's background. S.M.1 was with Ms. Carraway during Petitioner's telephone call. Ms. Carraway and S.M.1 wrote notes to each other regarding Petitioner's comments during the telephone call. Both girls were apprehensive for some time after this telephone call about the possibility of being arrested. Ms. Carraway called Ms. Kelly immediately after talking to Petitioner. Ms. Kelly then called Petitioner to instruct him not to make any further calls to the Carraway home.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent enter a final order revoking Petitioner's therapeutic foster license. DONE AND ENTERED this 22nd day of April, 2002, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 22nd day of April, 2002. COPIES FURNISHED: David L. Motes 2023 Duneagle Lane Tallahassee, Florida 32311 John R. Perry, Esquire Department of Children and Family Services 2639 North Monroe Street, Suite 252A Tallahassee, Florida 32399-2949 Peggy Sanford, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
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 The issue in this case is whether HRS should grant the Petitioner's application a license to operate a foster care home for dependent children.
Findings Of Fact The Petitioner, Christopher Murphy, is a single male, born July 27, 1966. He wants to be a foster care parent for up to two teenagers, same sex, including those with a history of having been abused. In approximately September, 1994, the Petitioner approached the Children's Home Society (CHS), located in Orlando, Florida, to inquire about applying for licensure to operate a foster care home for dependent children. CHS is and was under contract with the Department of Health and Rehabilitative Services (HRS) to screen prospective licensees. The screening process included, among other things: interviews with the Petitioner; a home study; review of written personal references on behalf of the Petitioner; evaluation of the Petitioner's participation in the HRS-approved Model Approach to Partnerships in Parenting (MAPP) program. After conducting its training and screening of the Petitioner, CHS recommended the Petitioner for licensure "for two children, same gender, ages 12 to 18 years," and the Petitioner filed his application for licensure on or about May 3, 1995. The Petitioner and the "relief persons" he designated in his application underwent background screening, and no disqualifying information was found. However, by letter dated July 11, 1995, HRS gave notice of intent to deny the Petitioner's application for the following reasons: According to Florida Administrative Code Chapter 10M-6, it is the opinion of the Department that based on your own experience with depression, your single lifestyle and your sexual orientation that your desire to be a foster parent is not in the best inte- rest of the children in the custody of Health and Rehabilitative Services. You have indicated that you have doubts about your ability to work with HRS in seeking rehabilitation of the families with children in foster care, that you have limited patience with bureaucracy, and that you would not like to see the foster children in your care return to their parents. Professional counseling to relieve distress over your sexual orientation did not resolve that issue. These consider- ations lead HRS to believe that it would not be in the best interest of children in state custody to be placed with you in foster care. The Petitioner's Mental and Emotional Status The evidence is that the Petitioner experienced some difficulties growing up as one of ten siblings. His mother was very religious but, at the same time, appears to have been a strict disciplinarian and, at times, almost "cruel" to the children. In addition, the Petitioner tended to be a loner during his early years. He was physically weak and was susceptible to being bullied by other children. In addition, he played differently from other boys his age, preferring to spend his time reading Jane Austen and the Bronte sisters rather than playing with friends. As the Petitioner grew older, he increasingly recognized signs that he was homosexually oriented. These signs disturbed him because a homosexual orientation was contrary to his desires and to what he understood to be the morals of his family and religion. When the Petitioner went to college in the mid-1980's, he still would have been considered a "social isolate," and the combination of stresses from leaving home, living on his own at college and dealing with his sexual orientation resulted in depression requiring individual psychotherapy and medication (at first Impramine and later, in 1992, Prozac). Dealing with his mother's death in 1988 caused the depression to recur, but the Petitioner was able to recover with the help of the psychotherapy and medication. Since 1988, the Petitioner has suffered periodic bouts of mild depression. (Medication he takes for rapid heartbeat tends to cause some depression as a side effect.) However, the Petitioner's major depression is in remission, and he has been able to control the mild depression by the appropriate use of medication. The Petitioner's physicians advise him to continue on medication and seek therapy as necessary. In recent years, the Petitioner has resolved his conflicted feelings about his mother, as well as many of the conflicts he had with members of his family. The Petitioner also has made great strides to resolve his conflicted feelings about his sexual orientation. At the same time, he still rejects the values and lifestyle of the gay world and continues to accept most of the basic tenets of traditional values and lifestyle. As a result, there is no indication that the Petitioner is trying to use the foster parent program in order to make a political statement about gay rights. However, the difficulty the Petitioner will continue to face is that traditional society does not necessarily always accept him. This probably will make being a foster parent more difficult for the Petitioner. The Petitioner also has made considerable progress making and maintaining viable personal relationships. He has been able to work responsibly and well in the positions he has held with Universal Studios in Orlando and has made and maintained several positive and valuable friendships through work and elsewhere. In the words of a licensed psychologist who evaluated him in August- September, 1995, the Petitioner is "on the mend" in this regard; by this he meant that the Petitioner is making good progress in the right direction. If major depression were to recur, the Petitioner obviously would have difficulty persevering, and probably would be unable to persevere, in seeing a foster child through to the end of his or her temporary placement. But in recent years the Petitioner has been able to control depression by appropriately using his antidepressant medication, monitoring himself for symptoms of depression, and seeking appropriate therapy as needed. As long as he continues to do so, it is not anticipated that major depression will recur. HRS has licensed others with mental and emotional status similar to the Petitioner to be foster parents. It is true that there is a possibility that the stress of being a foster parent could cause the Petitioner's depression to recur. In many ways, teenage is the most difficult age bracket for foster care, and abused teenagers can present even greater difficulties. But HRS maintains control over the children to be placed with the Petitioner, and an effort could be made not to place the most difficult foster care challenges with the Petitioner, at least initially. In addition, HRS and the Petitioner could cooperate in monitoring the effects that the stress of being a foster parent have on the Petitioner. There is a good chance that the Petitioner's depression will not recur as a result of being a foster parent. The Petitioner's Parenting Experience The Petitioner has no children of his own and has no parenting experience. He grew up in a family of ten children but tended to spend much of his time apart from them. The Petitioner did some baby-sitting during his teens. But otherwise, through his college years, the Petitioner did not exhibit much inclination or desire to be around or work with children. The Petitioner changed as he reached adulthood. He now has a very strong desire to help teenage children by acting as their foster parent. In recent years, he has had the opportunity to work with families having their pictures made at the Universal Studios park in Orlando and has found that he had success interacting with the young members of those families. While he has not had much experience taking care of teenagers, he also has enjoyed spending considerable time in recent years interacting with the young children of friends and other family members. (Living in the a vacation center, many siblings and other members of his family have taken advantage of the opportunity to visit him since he moved to Orlando.) The Petitioner seems to interact well with the children in several arenas--facilitating play, sharing snacks and meals, helping with homework, going on picnics and other outings, suggesting and participating in other positive family activities. His friends' children like him, and his friends trust him with tending to their children. On the other hand, the Petitioner's experience taking care of children is limited. The Petitioner's experience as the sole caretaker responsible for children is relatively sparse and of relatively short duration. While the Petitioner has done some baby-sitting for family and friends, most of the time he has spent with children has been while their parents were around. The Petitioner has not had occasion to be responsible for children overnight or for extended periods of time (certainly not for 24 or more hours). He also has not had much other experience working with children in other settings. He has not, e.g., worked or volunteered as a counselor for church or civic youth groups or camps. Due to the nature of the Petitioner's experience with children, and his lack of experience with teenagers, it is not certain that the Petitioner will succeed as a foster parent of teenagers, or children of any age. It also is not certain that the Petitioner himself will thrive as and enjoy being a 24- hour a day foster parent. It would be desirable both for the Petitioner and for the children to be placed with him for the Petitioner to get more experience before beginning to act as a foster parent. But, on the other hand, the same probably could be said for most first-time parents. It is hard to truly know what it is like to be a parent until you become one. HRS has no non-rule policy establishing clear minimum experience standards for licensure as a foster parent. HRS has licensed others to be foster parents with as little or less parenting experience compared to the Petitioner. The licensing administrator who testified for HRS stated that HRS never has issued a provisional license to a first-time applicant and that HRS would not issue one for the purpose of evaluating the provisional licensee while the licensee gains additional parenting experience. The Petitioner's Ability to Be a "Team Player" On the "Strengths/Needs Work Sheet" for various sessions of the Petitioner's MAPP training, the Petitioner wrote: (Needs as a Result of Meeting 2) I am intolerant of those who hurt children and may have a difficult time holding back and/or editing my language in their company (during visits). I have limited patience with bureaucracy. If something is not getting done, I will do it myself regardless of who gets offended. (Needs as a Result of Meeting 5) I probably will assume I am a better parent than the child's birth parents, and I don't think I'll want the child to return to his biological family. As CHS conducts MAPP training, prospective foster parents are encouraged to use the "Strengths/Needs Work Sheet" to honestly express their deepest concerns about their ability to succeed as foster parents. Then, the trainers help the trainees deal with those concerns. CHS' MAPP trainers believed that, during the course of the training sessions, the Petitioner was able to work through his concerns and grow through the training process. He was open to the trainers' ideas and actively participated in the sessions. In their estimation, the Petitioner's comments, even when in the fifth session, should not be taken as an indication that the Petitioner would not be able to work in partnership with HRS and birth families as a team player. The licensing administrator who testified for HRS was not familiar with how CHS conducted MAPP training and was not in a position to conclude, as she did, that the Petitioner's statements on the "Strengths/Needs Work Sheet," in and of themselves, show that the Petitioner will not be able to work in partnership with HRS and birth families as a team player. The Petitioner has had no difficulty working within the bureaucracy at Universal Studios. He has had good relationships with his supervisors and has had no difficulty accepting their authority over him. Nothing about his employment experience would indicate that the Petitioner would have difficulty working in partnership with HRS and birth families as a team player. The Petitioner's Single Life Style On the "Strengths/Needs Work Sheet" for various sessions of the Petitioner's MAPP training, the Petitioner wrote: (Needs as a Result of Meeting 2) I am responsible, but do not lead a structured life. I eat when I'm hungry, sleep when I'm tired, have ice cream for breakfast . . . (Needs as a Result of Meeting 3) I may not be able to go out all night and do things as spontaneously as I do. (Needs as a Result of Meeting 5) It's just me - one on one. If I had a spouse to back me up when making rules or administer- ing discipline, things would be easier. On the other hand, the Petitioner also counted among his strengths: (Needs as a Result of Meeting 3) It's just me. . . . A foster child has only one person to adjust to. (Needs as a Result of Meeting 4) I have no other people living in my home and can devote a majority of my free time to my foster child. (Needs as a Result of Meeting 5) As a single male with no children, I will be the only one affected. These comments indicate an awareness on the Petitioner's part that his life will change if one or two foster children are placed in his home. As he recognizes, being single will make it more difficult in some ways, but somewhat easier in other ways. What can make being a single foster parent most difficult is not having the emotional and intellectual support and help of another adult in the home. A single foster parent must attempt to compensate by having adult family and friends who are willing and able to serve some of those needs. Several of the Petitioner's friends are willing and able to serve in this role for the Petitioner. All have met HRS's screening requirements. One thing a single foster parent cannot replace is the inability to demonstrate (and teach through) a successful marriage. But this inability clearly is not disqualifying. The Petitioner's Sexual Orientation HRS's notice of intent to deny the Petitioner's application mentioned the Petitioner's sexual orientation. But at final hearing HRS took the position that sexual orientation itself was not a ground for denial of the Petitioner's application. While not disqualifying in itself, being a homosexual foster parent undeniably will present special problems. First, it already has been mentioned that it can be a challenge for a homosexual to function in traditional society, and trying to function as a foster parent in traditional society surely will present its own special challenges. Along those lines, it is foreseeable, e.g., that a foster parent's homosexuality could be unacceptable to the birth family. In addition, since unmarried cohabitation by two or more adults is disqualifying, the Petitioner would be restricted to living alone. Lastly, many foster parents later adopt children placed with them, but the Petitioner will not be able to because homosexuality is disqualifying for purposes of adoption.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Health and Rehabilitative Services enter a final order issuing the Petitioner a license to operate a foster home for up to two children, same sex, ages 12 to 18 years of age. DONE and ENTERED this 27th day of June, 1996, in Tallahassee, Florida. J. LAWRENCE JOHNSTON, 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 27th day of June, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-4150 To comply with the requirements of Section 120.59(2), Florida Statutes (1995), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1. Rejected that he applied for a license then; he initiated the screening process and preservice training at that time. Otherwise, accepted and incorporated. 2.-4. Accepted and incorporated. 5.-8. Accepted and incorporated to the extent not subordinate or unnecessary. 9. The characterization "extensive" is rejected as not proven; otherwise, accepted and incorporated. 10.-12. Accepted and incorporated. 13. The date "July 11, 1996" is rejected as contrary to the evidence. (It was 1995.) Otherwise, accepted and incorporated. 14.-16. Accepted and incorporated to the extent not subordinate or unnecessary. 17. Accepted but subordinate and unnecessary. 18.-22. Conclusions of law. Accepted and incorporated. Conclusion of law. Respondent's Proposed Findings of Fact. 1.-3. Accepted and incorporated. 4.-6. Conclusions of law. 7.-9. Accepted but subordinate and unnecessary. Rejected as contrary to the greater weight of the evidence. (The first testimony referred to Noll's knowledge of whether the Petitioner was on medication at the time of the hearing. Noll was not "pressed" for the additional testimony; he was just asked a different question.) Rejected as contrary to the evidence that Noll "failed to follow through." Also, subordinate and unnecessary, as the question for determination is whether the evidence at final hearing supported licensure. Rejected as contrary to the greater weight of the evidence. (Again, the question for determination is whether the evidence at final hearing supported licensure.) Rejected as contrary to the greater weight of the evidence that he did not present any experience in his application; he presented more at final hearing after being informed that HRS included experience in the "single lifestyle" ground for the July 11, 1995, notice of intent to deny. Again, the question for determination is whether the evidence at final hearing supported licensure. Rejected as contrary to the greater weight of the evidence; he presented more at final hearing. See 13., above. 15.-16. Generally, accepted. The Petitioner's exact statements are incorporated. Rejected as contrary to the greater weight of the evidence that the Petitioner's purpose was to "avoid working with birth families." (The gist of Noll's discussion with the Petitioner appears to have been that foster parenting older children generally makes reunification less of a concern; either reunification would not be a viable option or, if considered, the older child would have more say in the matter. Otherwise, accepted but subordinate and unnecessary. Accepted but, as previously ruled, subordinate to the ultimate issue for determination, and unnecessary. COPIES FURNISHED: Ann E. Colby, Esquire 305 Elkhorn Court Winter Park, Florida 32792 Laurie A. Lashomb, Esquire Department of Health and Rehabilitative Services 400 West Robinson Street, Suite S-827 Orlando, Florida 32801 Gregory D. Venz Acting Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-1600 Richard Doran General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-1600
Findings Of Fact At all times pertinent hereto, the Respondents were operating a shelter home in Opa Locka, Florida, pursuant to License 290-12-5 that had been issued by Petitioner. Respondent W.G. is the husband of Respondent G.G. On December 27, 1990, Petitioner received a report in its central abuse center in Tallahassee of alleged child abuse by Respondents at their shelter home in that Respondents were verbally abusing a 17-year-old female that had been placed in their shelter home. Protective services investigator David K. Welch immediately began an investigation of this alleged abuse. He visited the shelter home. Respondent G.G. was present in the shelter home when Mr. Welch made his visit to the home, but she was not in the same room with the children who had been temporarily placed in the custody of the Respondents. At the time of Mr. Welch's visit, Respondent G.G. was present in the home and was providing adequate supervision. Mr. Welch spoke with the Respondents about the allegations of verbal abuse and concluded that the allegations were "indicated". Mr. Welch found insufficient evidence upon which to base a conclusion that the allegation of verbal abuse should be closed as "confirmed". During the course of his investigation, Mr. Welch learned of reports from three other protective services investigators of allegations that Respondents often left the children who had been placed in their temporary custody without adequate supervision. The three reports, upon which Mr. Welch relied, were from Fidelis Ezewike pertaining to an incident on September 24, 1990, from Iris Silien pertaining to an incident on December 28, 1990, and from Michael Blum pertaining to an incident on an unspecified date in late 1990. At no time did Mr. Welch advise Respondents as to allegations of abuse in the form of inadequate supervision or ask them to explain the arrangements they make for the supervision of the children when they are both away from the foster home. The abuse report listed two victims of the alleged neglect, M.L., a female born in February 1974, and L.G., a female born in August 1975. Neither of these alleged victims testified at the formal hearing. Mr. Welch had no first had knowledge of the three incidents upon which he relied to close the report as a proposed confirmed report of child abuse based on neglect from inadequate supervision. Mr. Ezewike did testify as to the incident of September 24, 1990. Although he found children in the foster home temporarily without adult supervision when he arrived there, he later that day discussed the matter with the Respondents. Respondents explained their temporary absence from the foster home to Mr. Ezewike. Mr. Ezewike was satisfied with the explanation given by the Respondents and was of the opinion that the absence of the Respondents did not merit the filing of an abuse report based on the failure to provide adequate supervision.2/ Ms. Silien did not testify at the formal hearing. There was no competent, substantial evidence to establish that Respondents failed to provide adequate supervision to the identified victims on the date Ms. Silien visited the foster home. Mr. Blum did not testify at the formal hearing. There was no competent, substantial evidence to establish that Respondents failed to provide adequate supervision to the identified victims on the date Mr. Blum visited the foster home. Respondents' son-in-law testified that he was present at the foster home on the date of Mr. Blum's visit and that he explained to Mr. Blum that he was supervising the children temporarily at the request of Respondents. The uncontradicted testimony was that when Respondents have to be away from the foster home on a temporary basis, they entrust the supervision of the children in their custody to their daughter and her husband, who live in close proximity to Respondents and who had agreed to be responsible for supervising the children. Petitioner failed to establish that the temporary arrangements Respondents made for the supervision of the children in their absence from the foster home was inadequate.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which amends FPSS Report No. 90- 1333485 to reflect the findings contained herein, which closes said report as unfounded, and which expunges the names of the Respondents as confirmed perpetrators from the central abuse registry. DONE AND ORDERED this 2 day of June, 1992, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 2 day of June, 1992.
The Issue The issue for consideration in this matter is whether Petitioner should be granted an exemption from disqualification to serve as a foster parent because of the matters alleged in the Department's letter of denial dated June 7, 1996.
Findings Of Fact At all times relevant to the issues herein, the Department of Health and Rehabilitative Services was the state agency responsible for the licensing of, inter alia, foster homes and foster parents in Florida, and for the granting of expemptions from disqualification for licensing for persons who otherwise would net be eligible for licesning due to prior misconduct. Petitioner, Robert Mallan, was convicted in Circuit Court in Hillsborough County of kidnapping and grand theft - 3rd degree, on November 12, 1991. The kidnapping related to the ten year old son of the boyfriend of a female friend of the Petitioner, Ms. Lilly. While admitting his participation and liability for the incident, Petitioner contends that the boy was taken by the young lady in an effort to exact revenge against her lover, the boy's father, for abusing her and to scare him so he would not touch her aqain. Petitioner's part, he asserts, was to rent the motel room where the child was taken for the woman and her accomplice sister, and when the plot began to fall apart, the two women implicated him. Ms. Lilly's testimony in a deposition given in August, 1991, prior to the criminal trial, paint a far more sinister participation by the Petitioner. Regardless of the motive for the act, Petitioner was found guilty of the offenses alleged, including the grand theft charge, and because some members of the jury hearing his case recommended clemency, he was sentenced as a youthful offender and was incarcerated for approximately eighteen months as a result thereof. Petitioner's wife, Jennifer Mallan, met and developed a relationship with two children in February, 1992. These children, the two S. boys, were the natural children of Johnnie Marie Roye, whose parental rights have been terminated. Desiring to take care of the children, Ms. Mallan undertook training as a foster parent through the Family Enrichment Center in Hillsborough County which trains, educates and assesses potential operators of foster homes for licensure. Ms. Mallan's home was subsequently licensed as a foster home in October 1994, prior to her marriage to the Petitioner, and became the foster home to the two S. boys. Petitioner met the children in August 1992, well before he and Jennifer were married, and he developed a good relationship with them. Once Ms. Mallan married the Petitioner, it becamae necessary for him to receive the foster parent training as well in order for the two S. boys to remain in the Mallan home. Therefore, as a part of the paper work incidental to his licensure, which, according to Ms. Wiliams, the Executive Director of the FEC, consisted of approximately twenty separate documents, Mr. Mallan filled out the form to initiate a background check. This check when completed in December 1994, revealed no record of any conviction. For some reason, however, a second background check, to include fingerprints, was required in the latter part of 1995. Incidental to that check, Petitioner filled out an Affidavit of Good Moral Character in September 5, 1995 on which, under penalty of perjury, he attested that he had not been found guilty of any of the criminal violations listed thereon, including kidnapping under Section 784.01, Florida Statutes. This affidavit is generally prepared by the trainee, under the supervision of the trainer, Ms. Davis, in conjunction with a training session. In this case, because Mr. Mallan had indicated he would not be available to attend training sessions on Thursdays, (one half the course), Ms. Williams cannot be sure whether he receive the standard verbal instructions given to applicants that they shyould not try to hide anything in their backgrounds. However, both Ms. Williams and Ms. Davis gave all the trainees their home phone numbers and offered to help in the prepartion of the documents after hours. Neither lady was contacted by Respondent with questions about any of the documents. Petitioner signed the affidavit at the spot provided therefore on the back of the form where someone had placed an "X". The form is self-explanatory and easy to read. Alicia Miller, the licensing worker at the Family Enrichment Center,who helped Ms. Mallan obtain her foster care license, and who was also helping Petitioner to obtain his, claims she explained the contents of the affidavit to him during the one and a hours she spent at his place of employment going over the forms with him, and he did not request an explanation of the affidavit form. Others who took the FEC's foster parent training, including Steven Link and Noel Perez, filled out the same affidavit and neither had any trouble comprehending the language on the form. Mr. Link indicates they were given many forms to fill out, some of which were read by the teacher. Others were self-explanatory. Not all the forms were given out on the same night. The results of the second background investigation revealed Petitioner had a conviction for kidnapping. This information was discovered by James Thomas, the background screening unit coordinator for the Department, who in turn informed Alicia Miller of the fact and that that conviction disqualified Petitioner from obtaining clearance as a caretaker for children. Ms. Miller passed this information on to Mr. Mallan who requested an exemption. All foster parents must be screened for violations of the law, some of which may disqualify a person from serving as a caretaker of children or from obtaining a foster caer license. When a person is disqualified because of a particular violation, that individual must seek an exemption from the agency before he or she can be licensed. A hearing was held on this request on May 10, 1996, In addition to his oral presentation, Mr. Mallan also provided the agency with numerous reference letters from people in the community who have known his through his church involvement. The informal exepmtion hearing of May 10, 1996 was attended by Mr. Thomas, Don McNair, the operations management consultant who specializes in the licensing of shelter and foster homes, Mr. and Mrs. Mallan, Alicia Miller, Randy White and Mark katherin Moers. As a result of this hearing, on May 20, 1996 the agency advised Mr. Mallan by letter that his request for exemption had been denied. The reason given for the denial was that Mr. Mallan did not show adequate remorse for his actions in kidnapping the child taken nor was he sufficiently forthright in explaining his involvement in the crime. Before recommending denial of Petitioner's request for exemption, Mr. Thomas reviewed the court records relating to the kidn apping charge and concluded that Mr. Mallan's version of the crime at the exemption hearing was not consistent with what was shown in the records. Mr. Mallan's story tended to indicate his involvement in the actual kidnapping was minimal, but an investigator from the Hillsborough County Sheriff's Office, who participated in the investigation of the crime, indicated that was not so. After the committee which heard Petitioner's request for examption met and recommended denial of the exemption, Mr. Mallan requested a second exemption hearing at which he could present his reasons for granting the exemption. Though such a hearing is not normally granted, at the direction of the District Administrator, Mr. Taylor, Mr. Mallan was granted a second exemption hearing at which he could discuss the progress he has made since his imprisonment. At this second hearing, held on May 31, 1996, Petitioner was heard by Harriet Scott, a district program manager; Mr. Thomas; and Mr. McBride, an agency licensing supervisor. The District Administrator, Mr. Taylor, also sat in for a part of the hearing but did not ask any questions of Mr. Mallan. During this second hearing, Petitioner claimed he was "railroaded" at his criminal trial by the prosecution and his two co-defendants, Ms. Lilly and Ms. Parmenter. When asked why he had a gun in his possession at the time of the kidnapping, Mr. Mallan explained he was going to use the gun to committ suicide and denied he used it during the commission of the kidnapping. However, when he was arrested by a Leon County Deputy Sheriff in a Tallahassee motel, he made several inconsistent statements regarding the location of the weapon. At the time of his arrest, he was dressed in a tuxedo and waiting for his girlfriend, now his wife, to pick him up to atten a formal sorority function. The decision to deny Petitioner's request for edxemption from disqualification was a difficult one for the committee to make. The evidence indicates that the two S. boys have been doing well in the care of Mr. and Mrs. mallan and want to return to their home. However, the initial decision to deny the request was made by Mr. Taylor, the District Administrator. Both members of the first committee appointed to review the case recommended denial of the request, and Mr. Taylor agreed only after reading all materials furnished to him by the committee. Several days after the denial letter was sent out, Mrs. Mallan called Mr. Taylor and before he could respond, Mr. Mallan also called to express his concern over the denial, indicating he did not feel he had been given a chance to present his full story. Based on this, and on the fact that Mr. Taylor had some additional questions to ask of the Petitioner, the second hearing was granted. Mr. Taylor classifies this case as one of the 4 or 5 most difficult decisions and the most difficult exemption decision he has had to make during his tenure as District Administrator. His concerns, which ultimately culminated in his decision to deny exemption, were: He did not feel Petitioner was entirely truthful at his first hearing and was evasive and misleading in the information given to the FEC. Petitioner did not express any remorse for his actions. During the period Mr. Taylor sat in during the second exemption hearing, Petitioner appeared almost arrogant and defiant in his approach to the committee. Taylor did not feel Petitioner accepted responmsibility for his actions. Throughout the hearing, Petitioner denied, minimalized and trivialized what he had done and consistently tried to place the blame on others. Many of the concerns expressed by Mr. Taylor were also felt by other committe members such as Ms. Scott. She, too, had the feeling that Petitioner was dissembling and not telling the whole truth. She concluded that the five years which had passed since the conviction was not enough time for Petitioner to be rehabilitated. Once the second hearing was over, Mr. Taylor had no doubts as to those factors cited in the paragraph next above, but he had great concern for the two children involved. He had to weigh these concerns. Before making his final decision, Mr. Taylor read and accepted as sincere all the letters sent in by Petitioner's friends and supporters. Mr. Taylor has no doubt that Petitioner is recognized as having done considerable good in the community, but all this has a hollow core, and without sincere remorse, the rest does not ring true for him. To Mr. Taylor the issue was not whether the two children in issue had a good home or whether Petitioner has done good, but whether Petitioner has been sufficiently rehabilitated, and based on what he has observed, Mr. Taylor concluded Petitioner has not. None of the staff of the Family Enrichment Center, including Olga Williams, the Director, Delores Davis, a training coordinator and teacher of the the Model Approach to parenting and Pertnership (MAPP) classes, or Alicia Miller, all of whom knew the Mallans through contact at the FEC, were ever informed prior to the marriage that Jennifer was going to marry Petitioner, nor were they informed by either that Petitioner had been convicted of kidnapping. Mr. Mallan is currently employed by the South Tampa Christian Center, (STCC), where he and his wife are members. He has been involved in community volunteer work since his release from prison. He is an active participant in a church program called "Conquering Force" in which he speaks to inner city children to convince them that the decisions they make today will affect their future. Though in these talks he has admitted to a prior conviction and incarceration, he has never discussed in detail with any audience the nature of his offense and the circumstances surrounding it. In addition to his work at STCC, Mr. Mallan has volunteered and worked at other community organizations which serve children's needs. It appears from Mrs. Mallan's recounting of the relationship amongst herself, Petitioner and the two S. boys has been quite good. When she and Petitioner decided to marry, and she realized both she and he would have to be liecensed as foster parents, she claims she advised the Department of Petitioner's conviction and also advised her MAPP teacher, asking if it would be worthwhile to continue with the trainin in light thereof. She claims to also have told Ms. Miller who, she relates, also told her the conviction would not be a problem so long as Petitioner has been clean since his release from prison. Once they were married, she contends, they both advised the relevant agency authorities of his conviction. Ms. Mallan contends that Petitioner should receive an exemption b ecause since he got out of prison he has lived rehabilitation for himself and others. He works with children to help and assist in decision making. He has never shown anything contrary to rehabilitation ahd wants to have a positive influence on youth. To her knowledge, parents of the children with whom he comes into contact are grateful for the time and efforts he has expended in Florida, nationally and internationally. Mr. Mallan became a Christian two weeks after he went to prison. He immediately worked in the chapel and has never backslid, but has been consistent and committed since he gave his life to the Lord. Mrs. Mallan disagrees with the Department's conclusion that Petitioner is not remorseful over what he did. She has heard him publicly speak about it and he has contacted the victim's father to see that the boy is all right. Petitioner's good wirk is noted by Henry Blanton who served on a committe for a crime forum for the Boy Scouts which was made up of judges, police officials and others related to law enforcement and at which Petitioner was involved. Mr. Blanton had known Petitioner for several years and saw what he was doing for youth, and asked him to get involved. Mr. Blanton's son has been involved with the petitioner through church activities and feels he knows Petitioner quite well. Mr. Blanton is aware of Petitioner's record from Petitioner's public recounting of it as a part of his ministry, and is shocked by the Department's position that Petitioner has not been rehabilitated. Blanton is unequivocally convinced that Petitioner has been rehabilitated and has done much for young people in the community. In Blanton's words, Petitioner "should be commended for what he has done - not castigated and raked over the coals." Tough he his aware of Petitioner's conviction for kidnapping, Mr. Blanton is not aware of the details. As he recalls, Petitioner has referred to the kidnapping as a "prank." Mr. Blanton knows nothing bad about the Petitioner other than his conviction and is not aware of any drug or grand theft charges. He also was not aware that Petitioner was not honest on his affidavit of good moral character, and feels that lying is not evidence of good moral character. Several other responsible individuals were convinced of Petitioner's worth, having heard of his incarceration through their relationship with him. None was advised of the reason for his imprisonment, however. Nevertheless, all, including a marital counselor and a school community specialist, believe Petitioner is committed to a Christian lifestyle and to God. Mrs. Mallam's uncle, a Hillsborough County Circuit Judge, has known Petitioner for about five years, before the trial and incarceration. He cannot say whether Petitioner has changed because he did not know Petitioner well before his imprisonment. In the Judge's opinion, it is hard to measure rehabilitation, but he seems to have seen a change in the Petitioner's life style which makes him moere committed to the improvement of youth. Petitioner never denied his crime to this Judge nor did he try to minimize them, but he also never brought the subject up and the Judge never questioned Petitioner about it. All of the responsible individuals such as teachers and school administrtors who have been in contact with the two S. boys attest that they have done well living with the Petitioner and his wife. Pastor Randy White of STCC first met the Petitioner right after Mr. Mallan was released from prison. At that time, Petitioner was dating Ms. Mallan and wanted to attend his church. For over a year therafter, Petitioner did community service for the church as a part of his probation. He told the pastor he had b een convicted of kidnapping and grand theft and appeared to be remourseful, neither denying nor minimalizing his offenses. After he completed his period of community service, Petitioner came on staff at the church as outreach director. He performed well and was offeded the position of youth pastor in which capacity he is still employed. In the words of Pastor White, Petitioner has done a "tremendous" job. Churches from all over the country have contacted him seeking to hire him. Both pastor White and the church sponsored Petitioner in a one year "Master pastor" intern program which gave him thirty college credits. Petitioner successfully completed the program. Pastor White has no reservations about Petitioner's rehabilitation or that he is a productive member of society. Petitioner has now beenb ordained as a minister and has all the qualities of a minister. In Pastor White's opinion, Petitioner has a stable marriage to a woman who is involved in his ministry and woulod not turn to crime. Recognizing that truth is a part of rehabilitation, Pastor White believed also that an intentional misrepresentation is evidence of bad character. He is aware of Petitioner's reference to his misdeed as a "prank", but also contends that Petitioner told him he had told the Department's representatives of his criminal record. Pastor White has no reason to doubt Petitioner on any level. In that regard, Petitioner counselled with Paul Hollis, the Director of Counseling for STCC in the Fall of 1992. Petitioner wanted to make sure thee was nothing in his background to cause a problem for the church. In the course of the counselling, petitioner gave a full account of his criminal conviction and the details involved. He was very open and did not try to conceal anything. As a rsult of their sessions, Mr. Hollis felt that Petitioner was remorseful and anxious to insure that what happened in his past would never happen again. At that time, Mr. Hollis felt Petitioner was already rehabilitated and nothing has occurred since to cause him to have a question as to Petitioner's rehabilitation. In fact, Petitioner is now helping to rehabilitate others. Arlene Freed-Vest, Petitioner's probation officer for the fourteen months he was on probation after his release from approximately nine months in prison, supervised him closely during the period of community service he performed upon his release. Petitioner had initially been placed on three and a half years of probation, but she recommended early termination of probation based on her satisfaction he was rehabilitated. This determination was based on a review of his entire file from confinement on and she was satisfied he had received all the benefits he could from prob ation and would not benefit from it further. She concluded that Petitioner took responsibility for his actions and has shown continuing remorse. The fact that he has tried to get on with his life does not mean he is not owning up to his offense.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Health and Rehabilitative Services enter a final order granting Robert Mallan an exemption from disqualification from residing in a licensed foster home. DONE and ENTERED this 13th day of February, 1996, in Tallahassee, Florida. ARNOLD H. POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 13th day of February, 1996. COPIES FURNISHED: Elizabeth M. Hapner, Esquire 101 South Franklin Street, Suite 100 Tampa, Florida 33602 Josefina M. Tomayo, Esquire Jennifer S. Lima, Esquire Department of Health and Rehabilitative Services District 6 Legal Office 4000 West Dr. M. L. King, Jr. Boulevard Tampa, Florida 33614 Gergory D. Venz, Agency Clerk Department of Health and Rehabilitative Services 1317 Winewood boulevard Building 2, Room 204-X Tallahassee, Florida 32399-07600 Richard Doran General Counsel Department of Health and Rehabilitative Services 1317 Winewood Boulevard, Room 204 Tallahassee, Florida 32399-0700
