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 is whether Petitioners' application for relicensing as a foster home should be approved.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In this licensing dispute, Petitioners, Leo and Connie Smith (the Smiths), seek to have their foster care license renewed. In a preliminary decision rendered on October 8, 1999, Respondent, Department of Children and Family Services (Department), denied the request on the ground that Petitioners improperly used corporal punishment on a child under their care, and that the Department "cannot [be] assured that [Petitioners] will not lose control again and use excessive corporal punishment." The underlying facts are relatively brief. Petitioners were first issued a therapeutic foster care license in September 1998. Thereafter, and until their application for renewal was denied, they used the license to care for two therapeutic foster children, a type of foster child that has far more severe emotional problems than a regular foster child. On July 25, 1998, or before the license was issued, Connie Smith (Connie) was babysitting a two-year-old child in her home. When the child "messed in its pants" a second time after being previously warned not to do it again, Connie struck the child with a ruler which left bruises on the child's buttocks. The incident was investigated by the Department and culminated in the issuance of an abuse report on October 9, 1998, which is identified as abuse report number 98-084291. Apparently, that report was not contested, for it remains a confirmed report in the abuse registry. Because the Department's background screening on the Smiths was completed in May 1998, or before the abuse incident occurred, the Department was unaware of the matter when it issued the license in September 1998. The abuse report contains an admission by Connie to the mother of the child that "she had lost her temper with the baby" and struck him. At hearing, however, she denied that she "lost control" and maintained instead that the spanking was simply a form of discipline for the child. Even if Connie's version of events is accepted, the fact remains that the child was struck so hard that he suffered bruises on his buttocks. Through accepted testimony presented at hearing, the Department expressed the concern that if Connie lost control supervising a normal two-year-old child, she would have far more difficulty with older children having severe emotional problems, such as therapeutic foster children. This is a legitimate concern, and Petitioners failed to demonstrate that this concern was not well-founded.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services enter a final order denying Petitioners' request for renewal of their foster care license. DONE AND ENTERED this 21st day of November, 2000, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of November, 2000. COPIES FURNISHED: Virginia A. Daire, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Leo and Connie Smith 12134 County Road 684 Webster, Florida 33597 Ralph J. McMurphy, Esquire Department of Children and Family Services 1601 West Gulf Atlantic Highway Wildwood, Florida 34785-8158
Findings Of Fact Respondents have cared for foster children for some twenty years. In November or December of 1975, they began with Christian Youth Care, Inc. (CYC), a foster home in Zephyrhills founded under the auspices of the First Baptist Church of Zephyrhills. Since then small groups of adolescent girls have lived with respondents and their teenage daughter, Dawn. In all, some 80 children have lived at CYC since respondents have had charge of the home. In July of 1977, petitioner placed June Holmes, who is deaf and dumb, with respondents. After June had been with the Houghs for two weeks or so, Lillian Parsons, a social worker in petitioner's employ, told Mrs. Hough that June should be wearing a hearing aid. June did not want to wear a hearing aid. She was also disappointed that Mrs. Hough would not take her to Daytona Beach; she became very upset, wielded a straightened safety pen and started knocking things off bureaus. When Mr. Hough served as a medical technician in the armed forces, unruly patients were sometimes wrapped in blankets. Perhaps remembering this experience, he enlisted Mrs. Hough in wrestling June to the floor, wrapping her in a blanket and securing the blanket with three belts. In the process, Mr. Hough said to June, "See how mad you can get." These events caused concern among the other children living in the home, who gathered to watch and, at respondents' suggestion, to say prayers. Mrs. Hough told June that she loved her. After June had lain bound in this fashion for 45 minutes, respondents released her. The following day Mrs. Hough called Mrs. Parsons to report the incident and to ask that June be placed in another home. Mrs. Parsons expressed no disapproval of respondents' method of restraining June nor did she tell them not to do it again. June remained with respondents until she left for boarding school in St. Augustine. When June returned to the Houghs from school on Easter vacation 1978, she wanted a new pair of shoes that cost $24.95. Respondents bought her a different pair instead. Easter morning June wanted to wear her old shoes, not her new shoes. This caused an argument. Mrs. Hough stayed home with June while Mr. Hough took the others to church. When Mrs. Hough began packing June's clothes into a suitcase, June was "worried that [respondents] would move [her] out." Deposition of June Holmes, p. 5. She walked outside and sat under a tree near the road. Mrs. Hough telephoned her husband and summoned him home from church. With the help of a deputy sheriff brandishing handcuffs, respondents coaxed June into their van and drove her up the driveway to their home. At first she refused to leave the van, so respondents went inside without her. When June eventually went inside, there was another confrontation. Mr. Hough wrestled June to the floor and sent Mrs. Hough for a blanket. After respondents wrapped June in the blanket and secured it with belts, Mr. Hough set off to retrieve the children he had left at church. After Mr. Hough returned with the other children, respondents unwrapped June and there was an Easter egg hunt. The next day Mrs. Hough called petitioner's offices in New Port Richey, then drove June to New Port Richey and left her there, because she wanted no more to do with her. When Mrs. Parsons learned that respondents had wrapped June in a blanket a second time, she asked to be relieved of responsibility for June. Eventually David J. Schultz, at the time a child welfare social worker in petitioner's employ, assumed responsibility for June; and June was again placed with respondents. Mr. and Mrs. Hough frequently communicated with guidance counselors and teachers at the schools children in their care attended. They made six visits to talk about Evelyn Ciacelli's progress with Ricky Rowell, guidance counselor at Woodland Elementary School in Zephryhills, and spoke to him on the telephone about Evelyn on several other occasions. Disappointed in Evelyn's progress with her homework one night, Mr. Hough picked her up and shook her. On another occasion, Evelyn and her roommate were wrestling in their room after they had been sent to bed. Mr. Hough heard them from the kitchen, walked into their bedroom with a spatula in his hand, and gave Evelyn, who was wearing a bathrobe over her nightgown, a swat on the rear with the spatula. On November 20, 1978, David J. Schultz left Petitioner's employ. He subsequently went to work for a corporation controlled by respondents and began living in their home. He lived there on December 13, 1978. On December 13, 1978, Bonnie Blair McKenzie, then employed by petitioner as a community youth leader, picked up Cindy Spickelmier at a shelter home in Dade City and drove her to respondents' home. Cindy, a 14 year old, was at the shelter home after having run away from another foster home, the Newmans'. She had lived with respondents previously and David Schultz also knew her. Shortly after Cindy's arrival, David Schultz was talking to her in the Houghs' living room, where she was sitting on a couch, crying. Also present were Mr. Hough, Ms. McKenzie, Nancy Newman, the foster mother who had previously had custody of Cindy, and Ed Springer, then the social worker in petitioner's employ responsible for Cindy's placement. Angry because Cindy was ignoring him, David Schultz grabbed the hair of her head, jerked her up into a standing position, had her bend over and lean against a desk for support, and struck her buttocks with a wooden paddle an inch thick. He administered the first blow with such force that Ms. Newman was frightened and Ms. McKenzie was "horrified and devastated." (T.52). Cindy fell to her knees, hysterical. Less forcefully, David Schultz struck her buttocks a second time. At the hearing Mr. Hough testified that: after Dave gave her the swats she sat back down and she was a new child. We were able to communicate with her and we thought we were really making good progress and being able to work with the child. That was the purpose of the new program and of course we were trying to set up parameters that would be beneficial to the child. (T.233). Notwithstanding this perceived improvement in Cindy's deportment, Ed Springer gave Cindy another spanking 30 or 45 minutes after David Schultz had finished. In the presence of Mr. and Mrs. Hough, and Mr. Schultz, Ed Springer struck Cindy five times on the buttocks with the same wooden paddle David Schultz had used, as punishment for running away from the Newmans' house. Later, on the evening of December 13, 1978, Cindy ran away from the Houghs'. She ended up at her mother's house where she spent the night. The next day her mother took her to the Pasco County Sheriff's Department. There Fay Wilbur an investigator for the Sheriff's Department, took photographs of Cindy's badly bruised buttocks. Petitioner's exhibits 3, 4 and 5. On the following day, December 15, 1978, Dr. Lena Ayala, a pediatrician, examined Cindy. She found large "[v]ery tender, painful" (T.55) hematomas covering the whole area of Cindy's buttocks. If she had seen a child in the custody of its natural parents in that condition, Dr. Ayala testified, she would have reported the matter to the child abuse registry. Petitioner discharged Ed Springer because of the beating he had administered to Cindy Spickelmier. Petitioner publishes a manual with a chapter entitled "Foster Family Group Homes for Dependent youth," Petitioner's exhibit No. 8. In part, the manual provides: 8.4.4 Unacceptable disciplinary approaches include: a. Corporal punishment--slapping, kicking, hitting, etc. * * * Humiliation, ridicule, sarcasm, shaming in front of the group or alone. Deprivation of essential needs such as food, sleep, or parental visits. Petitioner's exhibit No. 8, p.9. Although petitioner sometimes furnished foster group home licensees copies of its manuals, petitioner's files do not indicate that either Mr. or Mrs. Hough ever received a copy. Respondents wore unaware of the manual's contents on December 13, 1978; and David Schultz was also unaware of any policy against corporal punishment of foster group home children. Lorraine Cash, a foster mother in Pasco County, never spanked any foster child in her care over the age of eleven years. On the other hand, Henry Arnett, another foster parent in Pasco County, used corporal punishment in disciplining teen aged foster boys. He and his wife, Doris, were named foster parents of the year in 1978. On December 14, 1978, Joanne Wall telephoned respondents on behalf of petitioner and told Mr. Hough that David Schultz should be barred from their premises. When Mr. Hough protested that David Schultz lived on the premises, Ms. Wall asked Mr. Hough to keep David Schultz from working with the girls, which Mr. Hough agreed to do. On December 18, 1978, respondents submitted an application to petitioner for a child care center license, an application on which they had begun work considerably before December 13, 1978. Discouraged by the pace at which this application was being considered and by what respondents perceived as unfairness on the part of some of petitioner's personnel, Mr. Hough on February 15, 1979, told William Laing, a manager for petitioner, that he wanted all the foster children but two removed by five o'clock the following day, a Friday. Even though the agreement between petitioner and respondents called for two weeks' notice by the foster parents, petitioner's exhibit No. 6, Mr. Hough was unwilling to wait so long. Petitioner arranged to pick up all the foster children in respondents' care on the following day. Some of the children had not been told they would be leaving the Houghs' home. Respondents own improved real estate from which they derive rental income. In addition, CYC, funded by the First Baptist Church of Zephyrhills, paid respondents a salary. Occasionally, Mr. Hough worked outside the home. Pasco County contributed to the costs of caring for foster children. Respondents did not need moneys petitioner paid them on behalf of the children for their own personal purposes.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That, on the next anniversary of the date of respondents' original foster group home license, petitioner discontinue respondents' license for a period of one year. DONE and ENTERED this 19th day of June, 1979, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Barbara McPherson, Esquire Post Office Box 5046 Clearwater, Florida 33518 Robert L. Williams, Esquire Post Office Box 443 Dade City, Florida 33525
Findings Of Fact Respondent was initially licensed to operate a foster home in 1992. In April 1995, her license was renewed. As part of the licensing process, the Respondent signed documents entitled "Agreement to Provide Substitute Care for Dependent Children" and "Discipline Policy", thereby agreeing to comply with the terms of each document. Both of these documents clearly provide that corporal punishment of a foster child is prohibited. On October 30, 1995, Petitioner notified Respondent by letter of its intent to revoke her foster home license and stated, in pertinent part, as follows: This letter is to advise you that your Foster Home license is being revoked, effective November 1, 1995. This decision has been made based on our past concerns about inappropriate child-parent visits, the recent complaint about use of physical discipline, and the altercation on 09/18/95 between you and Foster Parent Veronica King. 1/ At the times pertinent to this proceeding, Respondent provided foster care for three teenage girls under the age of 18 years. On September 29, 1995, Petitioner's abuse registry received a report that Respondent had been physically and verbally abusive to the children in her foster care. The report included allegations that Respondent had hit and knocked down one of the girls in her foster care and that she attempted to return the girl to her natural mother, who had abused her daughter in the past. In response to that report, Petitioner removed the three girls from Respondent's foster care and began an investigation of the allegations. As part of that investigation, Respondent and each of the three girls were interviewed by employees of the Petitioner with appropriate training. The three girls who had been in Respondent's foster care made statements to these employees pertaining to their treatment by Respondent. These statements are hearsay that cannot be used as the sole basis for a finding of fact in this proceeding. 2/ In her interview, Respondent denied that she physically abused her foster children, but she admitted that she intentionally pushed one of the girls to the ground. Respondent violated Petitioner's discipline policy by pushing this girl to the ground. Respondent denied that she threatened to return one of the girls to the girl's abusive mother. Instead, she testified that she arranged for this girl to visit with the abusive mother. There was no competent evidence to dispute Respondent's testimony. Respondent conceded that she talked firmly to the three girls, but she denied that she verbally abused them. There was no competent evidence to dispute Respondent's testimony.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order that revokes Respondent's foster home license. DONE AND ENTERED this 2nd day of October, 1996, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of October, 1996.
The Issue The issue for determination is whether Petitioner's foster care license should be renewed.
Findings Of Fact At all times material hereto, Cathy Taylor (Petitioner) was issued a foster care license by the Department of Health and Rehabilitative Services (Respondent). On October 25, 1994, Petitioner signed an "Agreement to Provide Substitute Care for Dependent Children (Substitute Care Agreement) with Respondent, agreeing to abide by or with certain conditions which were considered essential for the welfare of foster children in her care. The Substitute Care Agreement provided in pertinent part: We are fully and directly responsible to the department for the care of the child. * * * 6. We will not give the child into the care or physical custody of any other person(s), including the natural parent(s), without the consent of a representative of the department. * * * 9. We will accept dependent children into our home for care only from the department and will make no plans for boarding other children or adults. * * * 11. We will notify the department immediately of any change in our address, employment, living arrangements, family composition, or law enforcement involvement. * * * We will comply with all requirements for a licensed substitute care home as prescribed by the department. * * * We will immediately report any injuries or illness of a child in our care to the department. * * * 19. We will abide by the department's discipline policy which we received during the MAPP training. On October 13, 1993, Petitioner received a certificate from Respondent for successful completion of the MAPP training. On October 25, 1994, Petitioner signed a "Discipline Policy Agreement" (Discipline Agreement). The Discipline Agreement provides in pertinent part: [T]he following disciplinary practices are FORBIDDEN on our children. FAILURE OF THE FOSTER PARENT(S) ... TO COMPLY MAY RESULT IN THE REMOVAL OF THE CHILD(REN) FOR AN INVESTI- GATION AND RESULT IN THE CLOSURE OF YOUR HOME. * * * Hitting a child with ANY object. Slapping, smacking, whipping, washing mouth out with soap, or ANY other form of physical discipline. * * * (6) Delegating authority for punishment to another child or person that is not the Foster Parent(s) ... NO OTHER CHILD, ADOLESCENT, OR ADULT IN THE HOUSEHOLD SHALL HAVE THE AUTHORITY TO DISCIPLINE. On October 11, 1995, Petitioner and Trevor Barnes signed a "Bilateral Service Agreement" (Bilateral Agreement) with Respondent, agreeing to abide by or with several conditions which were considered essential for the welfare of the children placed in the foster home. The Bilateral Agreement provides in pertinent part: 2. We are fully and directly responsible to the Department for the care of the child. * * * We will not give the child into the care or physical custody of any other person(s), including the natural parent(s), without the consent of a representative of the department.... * * * 8. We will accept dependent children into our home for care only from the Department and will make no plans for boarding other children or adults. We will notify the Department if any adult relative or family members returns to live in the home. * * * 10. We will notify the Department immediately of any change in our address, employment, living arrangements, arrest record, health status or family composition, as well as any special needs of the child (i.e. health, school problems, emotional problems). * * * We will comply with all requirements for a licensed foster home as prescribed by the Department. * * * We will provide a nurturing, supportive, family- like home environment. * * * We understand that any breach of the Agreement may result in the immediate removal of the child(ren) and revocation of the license. At that time, Trevor Barnes was Petitioner's fiance. They were married in January 1996 and have, therefore, been married for less than one year. On October 11, 1995, Petitioner and Trevor Barnes signed a Discipline Agreement. The pertinent language of the Discipline Agreement was no different from the one signed on October 25, 1994. In December 1994, minor foster child N.R. was placed in the care of Petitioner. In 1995, minor foster children V.M. and J.M., two sisters, were placed in the care of Petitioner. Petitioner was responsible for the supervision and care of the foster children. Petitioner allowed her sister, an adult, and her sister's son, who was not placed with her under foster care, to live in her home. At the time, her relatives had no other place to live. Petitioner did not inform Respondent that her relatives were living with her. Petitioner violated the Substitute Care Agreement and the Bilateral Agreement. At times, Petitioner left the children under the supervision and in the care of Mr. Barnes and her sister, thereby, violating the Substitute Care Agreement and the Bilateral Agreement. On November 23, 1995, Thanksgiving day, one of Respondent's representatives, who was transporting V.M. and J.M. to visit with their prospective adoptive family, became aware of marks on one of V.M.'s legs. Respondent's representative overheard V.M. tell J.M. to look at what "mommy" had done. Respondent's representative examined V.M.'s leg and discovered marks on V.M.'s leg. She questioned V.M., regarding the marks, and V.M. confirmed what Respondent's representative had overheard. Also, V.M. informed Respondent that Petitioner spanked both she and her sister, J.M. Respondent's representative determined that the marks were consistent with marks which would result from striking the child's leg with a metal hanger. However, she could not determine if the marks were fresh or recent or old scars because she was not trained to make such a determination. There was no other evidence as to any other observations made regarding the marks. Respondent's counselor, assigned to V.M. and J.M., reported the incident. An investigation was begun by Respondent for alleged abuse. Neither V.M. nor J.M. testified at the hearing. The investigator who conducted the investigation on the alleged abuse did not testify. Petitioner denies striking V.M. with a metal hanger or with any object. Moreover, she denies having ever inflicted corporal punishment on the children. Her method of punishing the children was taking away their privileges to do the things that they enjoyed. Further, Mr. Barnes questioned V.M., regarding the marks, who told Mr. Barnes that the natural mother inflicted the marks on V.M. Respondent was unable to provide evidence as to the last period of time that the children had visited with their natural parent(s). Petitioner did not report the marks on V.M.'s leg to Respondent. Petitioner violated the Substitute Care Agreement. Regarding spanking the children, prior to the discovery of the marks on V.M.'s leg, Respondent suspected that Petitioner was spanking the children. Respondent's counselor to V.M. and J.M. questioned Petitioner as to whether she was spanking the children. Petitioner denied any spanking and responded with her method of punishment as indicated above. But, also, Petitioner informed Respondent's counselor that perhaps Mr. Barnes or her sister had spanked the children. Petitioner presented no evidence that she had confronted both her sister and Mr. Barnes as to whether they were spanking the children and that she had instructed them not to do so, as such action was violative of the Discipline Agreement. Further, there is no evidence that Respondent questioned Petitioner's sister or Mr. Barnes. There is insufficient evidence to find that Petitioner used corporal punishment. However, the circumstances presented causes concern to the extent that Respondent was justified in questioning the suitability of Petitioner to be a foster care parent. At all times material hereto, Mr. Barnes did not live with Petitioner. He lived with Petitioner's grandmother. Petitioner never indicated to Respondent that Mr. Barnes either lived in the foster home or did not live in the foster home. Although he spent considerable time at Petitioner's home, the evidence is insufficient to show that he lived with her. Even if Mr. Barnes was living with Petitioner, Respondent became aware of it in October 1995. Respondent's counselor, who was assigned to N.R., believed that Mr. Barnes was living with Petitioner and informed him that, if he was going to live with Petitioner, she had to perform a background check on him. Respondent's counselor obtained the necessary information from Mr. Barnes to perform the background check. At that time, Respondent was aware that Petitioner and Mr. Barnes were planning to be married. Petitioner received a monthly allowance from Respondent for the care of the minor foster children. Petitioner became unemployed. Petitioner did not report her unemployment to Respondent. However, Respondent's counselor, who was assigned to V.M. and J.M., was aware of Petitioner's unemployment but assumed that Mr. Barnes was Petitioner's husband and that he was supporting the family. However, Petitioner and Mr. Barnes were not married, he was not living in Petitioner's home, and he was not supporting the family. Regardless, Petitioner violated the Substitute Care Agreement and the Bilateral Agreement. Petitioner paid too little attention to V.M. and J.M.'s hygiene and personal appearance. The hygiene was inappropriate to the point that the children's school contacted Respondent. The children frequently appeared to be unkept, and Respondent did not observe the children with any new clothes. Because of her unemployment, Petitioner had insufficient income to adequately support the minor foster children. Because of the marks on V.M.'s leg, because of V.M.'s statement to Respondent that Petitioner inflicted the injury to her leg and had spanked both she and her sister, and because Respondent had determined that Petitioner had violated its rules and regulations, Respondent removed the minor foster children from Respondent's home. Furthermore, Respondent refused to renew Petitioner's foster care license. Petitioner no longer wishes to renew her license.3 CONCLUSIONS OF LAW The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes. Petitioner has the burden of proving by a preponderance of the evidence that her foster care license should be renewed. Department of Transportation v. J. W. C. Company, 396 So.2d 778 (Fla. 1st DCA 1981); Balino v. Department of Health and Rehabilitatives, 348 So.2d 349 (Fla. 1st DCA 1977). Section 409.175(1), Florida Statutes, provides in pertinent part: The purpose of this section is to protect the health, safety, and well-being of all children in the state who are cared for by family foster homes, residential child-caring agencies, and child-placing agencies, by providing for the establishment of licensing requirements for such homes and agencies and providing procedures to determine adherence to these requirements. Rule 10M-6, Florida Administrative Code, sets forth the minimum standards by which foster parents must be evaluated. Rule 10M-6.012 provides in pertitnent part: Section 409.175, F.S., mandates that the department establish minimum standards, or rules for the types of care defined in the statute. The standards, once promulgated, have the full force and effect of law. The licensing rules specify a level of care below which programs will not be able to operate. Rule 10M-6.024 provides in pertinent part: (4) Responsibilities of the Substitute Care Parents to the Department. * * * (b) The substitute care parents are required to participate with the department in relicensing studies and in ongoing monitoring of their home, and must provide sufficient information for the department to verify compliance with all rules and regulations. * * * (g) The substitute care parents must notify the department regarding changes which affect the life and circumstances of the shelter or foster family. Rule 10M-6.025 provides in pertinent part: Length of Marriage. If married, substitute care parents should have a stabilized, legal marriage of at least one year prior to being licensed. Income. Substitute care parents must have sufficient income to assure their stability and the security of their own family without relying on board payments. The substitute family must have sufficient income to absorb four to six weeks of a foster child's care until a board payment is received. Petitioner has failed to meet her burden of proof. Petitioner has failed to meet the minimum standards of Rule 10M-6. In addition, during the course of her licensure, Petitioner violated several provisions of the Substitute Care Agreement and the Bilateral Agreement. Regardless, Petitioner has indicated that she no longer wishes to renew her foster care license.4
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health and Rehabilitative Services enter a final order denying the renewal of Cathy Taylor's foster care license. DONE AND ENTERED this 26th day of November 1996 in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 26th day of November 1996.
Findings Of Fact The Respondents operated a "therapeutic foster home" in Lee County, North Fort Myers, Florida. A therapeutic foster care home such as this is licensed to accept and care for emotionally disturbed children such as the 9- year-old girl, T.P., involved in this case and, as such, has a mental health technician from the Department available for consultation should such assistance be needed. The Petitioner is an agency of the State of Florida charged, as pertinent hereto, with administration of the foster care program mandated by Chapter 409, Florida Statutes, and the above-cited chapter of the Florida Administrative Code. The child involved in this dispute, "T.P.", is a 9-year-old girl who has been diagnosed as emotionally disturbed. The Respondents were aware that she was an emotionally disturbed child when she was placed in their home with one other foster child and were also aware that theirs was a licensed therapeutic foster home with a mental health technician available for consultation. They failed to make use of the services of that technician in dealing with the child's problem involving enuresis and ecopresis. This child's medical problem, involving incontinence of bowel and bladder, is related to the child's emotional disturbance. Because of the nature of this problem and its psychological ramifications, it is even more critical than with ordinary children that slapping or hitting as a punishment for bed- wetting or soiling of clothes or bedding should be avoided. If the child is so punished for incontinence, then the child's guilt feelings or feelings of inadequacy for having "accidentally" soiled bedding or clothes is greatly aggravated. On February 10, 1982, the Respondent, Russell Ostrander, administered corporal punishment to the child T.P. on two occasions, leaving multiple black and blue marks or bruises on the buttocks and thighs of this child "because she was messing in her britches." The child, either later that day or one or two days thereafter, visited with her natural mother who observed the bruises and reported the matter to Mrs. Parker, the Petitioner's first witness, who is a "district intake counselor." Mrs. Parker, and/or the other HRS personnel testifying for the Petitioner, felt that an instance of child abuse had occurred and removed the child from the foster home. The despondent admitted spanking the child on several occasions, but did not believe he could have caused the bruises shown in Exhibits 1 and 2. The Respondents admitted however that the child was spanked as punishment for "messing in her britches."
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the candor and demeanor of the witnesses, the evidence in the record, it is therefore RECOMMENDED: That the license of Janet and Russell Ostrander to operate a foster home be revoked. DONE and ENTERED this 12th day of May, 1983, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of May, 1983. COPIES FURNISHED: Anthony N. DeLuccia, Esquire District Legal Counsel Post Office Box 06085 Fort Myers, Florida 33906 Russell and Janet Ostrander Rt. 2, Box 382 Ruden Road North Fort Myers, Florida 33903 David H. Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32301
Findings Of Fact The Petitioners R.G. and M.G. were licensed as foster parents and their home as a Children Youth and Families foster home for dependent children at all times pertinent hereto. The Respondent is an agency of the state of Florida charged with licensure of foster parents and foster homes and with regulating and enforcing the standards of care of children placed in such foster homes as dependent children. This dispute apparently arose on or about April 18, 1990 when M.G., the foster mother, brought the M. children to the Department of Health and Rehabilitative Services office on that date to talk with a foster care counselor about problems experienced with the M. children in her home. Apparently the visit to the Department's office arose because M.G. had discovered that one of the children had allegedly stolen one or more articles from a local store in the community, or believed that she had, and was seeking the advise and council of Department's representative concerning the manner in which to address that perceived problem. During the course of that encounter with the Department's representative the M. children or some of them related incidents occurring in the home in the past while they were placed in the custody of the Petitioners which they felt involved or constituted mistreatment by M.G. Upon learning of these reports Department personnel removed the children from the G. home on April 18, 1990. No other children have been placed by the Respondent in the G. foster home since that time. Michelle M. testified that Petitioner M.G. called Marie M. a bitch, a whore and a slut on one occasion and gave Marie M. "the bird" (an obscene gesture). Michelle M. testified that M.G. called Marie M. a slut and stated that "she's just going to grow up to be a whore." Apparently Marie M. and Michelle M. had reported that M.G. called Marie M. a whore when Marie M. told M.G. about borrowing fifty cents from a boy at school. At the hearing, however, Marie M. testified that she borrowed fifty cents from a boy at school and that when M.G. learned of it she said "it would make her look like a whore." Mandy M. testified that M.G. thought that Mandy had called her "a faggot" and that, instead, she told her that she had called her sister that name but that M.G. did not believe her and sent her to her room and shoved her into the room whereupon she fell and hit herself against the bed or bedpost by accident. Michelle M. testified that on a church hayride a boy threw hay and hit M.G. in the face whereupon, thinking Michelle M. had done it, that M.G. hit Michelle on the leg with a flashlight. Mandy M. testified that M.G. hit Michelle on the leg with a flashlight, but her testimony revealed she knew nothing of that incident and her description of it was related to her by one of her sisters. Additionally, Marie M. testified that she saw M.G. pick up an infant by one arm from a crib and scold it for crying as she was picking the infant up to hold the infant in her arms. Michelle and Marie M. testified that M.G. held Marie M.'s mouth open and shoved red hot sauce into her mouth with a spoon as punishment for some perceived infraction. Marie M. testified that M.G. threw hot tea or hot water on the face of Marie M. while the child was asleep on a couch. M.G. categorically denies all the allegations made by the girls, the foster children in question referenced above. She denies ever making obscene gestures, ("the bird"), at any of the girls and denies calling them names such as bitch, slut or whore. She concedes that she may have admonished them or one of them about not "acting like a slut or a whore," etc. She also denies ever having administered hot sauce to any of the children. She said that on one occasion she gave Mandy some mustard on a teaspoon when the child inquired what it tasted like because she had never tasted mustard. She gave her a small amount of it just to show her how it tasted. She denies ever throwing hot tea or hot water on the face of any of the children and denies causing any of the children injury, specifically concerning the bedroom incident when the child apparently bruised her back falling against the bed. M.G. did use confinement for brief periods in a child's room as a form of discipline for inappropriate conduct in the home. She also denies hitting Michelle M. on the leg with a flashlight during the church hayride. In fact due to her position in the haywagon at the other end of the wagon from the child in question, it would have been impossible for her to reach over and hit her with a flashlight and that incident did not occur. M.G.'s testimony concerning the children's conduct and family life in the home with the children is to the effect that the older two girls, particularly the oldest, Michelle M., had a tendency to lie in order to "get their way"; that the girls were unruly and that they, particularly Michelle, used their relationship with HRS to try to intimidate the foster parents, particularly M.G. They had threatened to report M.G. for improper behavior towards the children in the home. The children resented the foster parents authority. Her testimony describes in detail, as do the exhibits submitted by the Petitioners, consisting of the monthly reports M.G. made to HRS, the progress of the girls and conditions generally in the foster home. This testimony and evidence shows that the Petitioners generally provided the children a good, wholesome home environment, with extensive involvement in school and church activities and with ample wholesome recreation activities at the home site on a lake. During the tenure of the girls in the Petitioners' home their scholastic progress improved markedly such that they were all earning "A and B" grades in school and otherwise were progressing well in school. M.G.'s testimony established that the Petitioners were providing a wholesome home environment for the children and were generally conscientious about caring for the children's needs, including medical needs, and with maintaining contact with and reporting to HRS concerning the children's living conditions and their progress in the home and in the school and church environment. The testimony of M.G. to the general effect that the older girls, particularly the oldest child, had a tendency to threaten reporting the parents or M.G. to HRS concerning their conduct as foster parents and their willingness to lie in an attempt to get their way or to intimidate the foster parents is corroborated by the letter in evidence as corroborative hearsay authored by Linda Kennedy. She is an acquaintance of the Petitioners associated with the Petitioners through the foster parent program. That letter indicates that when the girls were being taken to HRS to make statements concerning the incidents in question that they were reported to have said that they wanted to "get back at her" meaning M.G., the Petitioner and that Marie was heard to instruct Mandy not to talk to a lawyer because she "now liked M.G." and that Michelle had commented to the effect that she "wanted to really get her," meaning M.G. This information is taken from a hearsay letter in evidence pursuant to the above cited provision of Section 120.58, Florida Statutes but it corroborates the testimony to the same general effect of M.G. and corroborates testimony of Mandy who, after describing in her testimony some of the alleged parental abuse by M.G., testified that her sisters had asked her to say things to hurt M.G. Because of these revelations contained in the testimony of Mandy M. and the testimony of M.G., as corroborated by the letter in evidence authored by Linda Kennedy, it is deemed that the testimony of the three children can be accorded scant credibility and resultant weight. Accordingly the testimony of M.G. and Petitioner R.G. is accepted over that of the testimony of the three children testifying for the Respondent and it is found that the incidents described by the three children did not occur or did not occur in the way described by the three children such that they can not be deemed to have constituted abusive, disciplinary parenting practices and prohibited disciplinary practices. The testimony of Donna M. establishes that she has overseen the operation and management of foster homes in her capacity with the Department for many years. After the M. children were removed from M.G. and her husband and their foster home she had a number of telephone conversations with M.G. M.G. appeared to her, based upon her observance and her experience, to seem "fairly incoherent" during those telephone conversations on occasion. Consequently she recommended to M.G. that, in the course of the controversy concerning whether or not the foster home should be relicensed, that M.G. obtain a psychological evaluation. M.G. apparently scheduled that evaluation, appeared at the psychologist's office but, as shown by Petitioner's exhibit 5, the psychologist's report, apparently did not genuinely feel that she needed to get an evaluation. She rather merely consulted the psychologist concerning his advice to her about her dealings with HRS. He declined to render such advice and no psychological evaluation was ever made. In view of Ms. Mimms testimony, which is accepted, and in view of the comments made in the letter of Ms. Kennedy, and from the hearing officer's observance of the demeanor of M.G. and consideration of her testimony, it is deemed appropriate that a psychological evaluation of M.G. be obtained as a condition upon relicensure.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record and the candor and demeanor of the witnesses, it is therefore recommended that a Final Order be entered by the Department of Health and Rehabilitative Services granting the application for relicensure of the Petitioners as a Children Youth and Families foster home for dependent children, conditioned on the obtaining of a satisfactory psychological evaluation of M.G. RECOMMENDED this 3rd day of August, 1992, in Tallahassee, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of August, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-5842 Respondent's Proposed Findings of Fact (The Petitioners submitted no proposed findings of fact which can be independently and specifically ruled upon). - I. Rejected as not supported by the greater weight and credibility of the evidence. COPIES FURNISHED: Rodney M. Johnson, Esquire HRS District 1 Legal Office P.O. Box 8420 Pensacola, FL 32505-0420 Ronald and Marjorie Grover 4713 Radio Road Milton, FL 32583 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 John Slye, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700
The Issue Whether Petitioner's application for renewal of her family foster home license should be denied on the grounds set forth in the June 20, 1995, letter from the Department of Health and Rehabilitative Services (HRS), Respondent's predecessor, to Petitioner.
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made: Respondent is (as was its predecessor, HRS) a state government licensing and regulatory agency. From September of 1989 to June 30, 1995, Petitioner was licensed by HRS (on a yearly basis) to operate a family foster home at her residence in Palm Beach County. In May of 1994, as part of the licensure renewal process, Petitioner signed an "Agreement to Provide Substitute Care for Dependent Children" (Agreement). In so doing, she agreed that she would, as a licensed foster parent, among other things, "comply with all requirements for a licensed substitute care home as prescribed by the department," "immediately report any injuries or illness of a child in [her] care," and "abide by the department's discipline policy." The previous day (May 23, 1994), Petitioner had received and signed a copy of HRS's "discipline policy," which provided as follows: FOSTER PARENT(S): You are aware that for some time, Health and Rehabilitative Services has discouraged the use of Physical punishment, including spanking, for children in foster care. Now, however, we have an Administrative Rule statewide which prohibits foster parents from using corporal punishment on foster children. This section of administrative Rule 10M- 6, which deals with discipline is reproduced in the following paragraph. "Licensing and relicensing procedure developed by the Department shall include the presentation of written foster care disciplinary policies to applicants and licensed foster parents to ensure that appropriate nonabusive disciplinary practices are used in dealing with foster children's behavior. Discipline is a training process through which the child develops the self- control, self-reliance and orderly conduct necessary for them to assume responsibilities, make daily living decisions and live according to accepted levels of social behaviors. The purpose of discipline is education and rational. It focuses on deterring unacceptable behavior by encouraging the child to develop internal controls. Foster parents are expected to define rules which establish limits and types of acceptable behavior. These rules must be clearly explained to each child and applied equally to all children. Prohibited disciplinary practices include group punishments for misbehavior of individuals; withholding of meals, mail or family visits; hitting a child with an object; spanking a child; physical, sexual, emotional and verbal abuse; humiliating or degrading punishment which subjects the child to ridicule; being placed in a locked room; and delegation of authority for punishment to other children or persons not known to the child. The use of isolation shall be used only for short periods of time as a therapeutic measure when a child's behavior is temporarily out of control. Such periods of isolation shall be observed and supervised by the foster parent to ensure the safety of the child." If you have problems with this new rule, please discuss this with your licensing counselors who will be able to help you work out alternative disciplinary techniques for each child, according to his/her needs. My signature acknowledges that I have read this statement, that I understand the content and agree to abide by it. A. G. is a 12 year-old foster child who currently resides in Boys Town in Tallahassee. Before entering the foster care system, he had been the victim of abuse. In 1994, A. G. lived in Petitioner's family foster home along with three other male foster children, J. W., M. M., and B. P., all of whom were teenagers with troubled pasts and juvenile records. On or about December 15, 1994, the day before A. G. was scheduled to leave Petitioner's home for another foster home, the other boys angrily reported to Petitioner that A. G. had misappropriated a gift certificate that belonged to M. M. and a watch that belonged to B. P. M. M. was particularly upset and angry about what A. G. had done. Upon receiving this report, Petitioner instructed the boys to "take care of" the matter. The boys then went to A. G.'s room and proceeded to hit A. G. with their hands and a belt. A. G. sustained a number of bruises on his buttocks and the back of his legs as a result of the attack. A. G. yelled and screamed as he was being hit. Petitioner was in her bedroom, which was adjacent to the room where the beating took place. At no time during the attack did she leave her bedroom to tell the boys to stop beating A. G., nor did she take any other action to stop the beating. Petitioner exercised extremely poor judgment in instructing the older boys to "take care of" the matter. She should have realized that the carte blanche she gave J. W., M. M., and B. P., who were upset and angry with A. G., placed A. G.'s physical safety at risk. She compounded her error by not carefully monitoring the older boys subsequent activities to make sure that they resolved the matter appropriately without harming A. G. The following morning, A. G. left Petitioner's home for another foster home, that of Janet Kerimoglu and her husband. A. G. arrived at the Kerimoglu home with very few belongings. Moreover, his physical appearance concerned Ms. Kerimoglu. A. G. appeared to be very thin. Furthermore, he had head lice and fresh bruises on his body. When asked about the bruises, A. G. explained that he had been beaten up by some teenagers the day before at Petitioner's home. A report that A. G. had been the victim of abuse while at Petitioner's home was made to HRS's abuse registry. The report was investigated by HRS's protective services investigative unit. On January 10, 1995, following the completion of the investigation, FPSS Report No. 94-117809 issued. The report classified as "proposed confirmed" the allegation that Respondent was guilty of neglect in connection with the beating that A. G. received at her home on or about December 15, 1994. According to the report, the beating occurred "because of [Petitioner's] lack of supervision and [her] failure to protect [A. G.]," a finding which is supported by the preponderance of the record evidence in the instant case. A request to expunge or amend the report was denied on June 6, 1995. By letter dated June 20, 1995, Petitioner was advised that her foster family home license would not renewed because of the finding of neglect made in FPSS Report No. 94-117809.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order denying Petitioner's application for renewal of her family foster home license. DONE AND ENTERED this 4th day of September, 1998, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 4th day of September, 1998.
The Issue Whether Petitioners, K.W. and L.A.W., should be granted a license to be foster parents.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of facts are made: Petitioners are a married couple who applied to Respondent for a foster home license. Petitioners have three children. The background investigation conducted by Respondent revealed reports of incidents of domestic violence and battery involving Petitioners and their children. On October 4, 1999, police officers responded to Petitioners' home after receiving a report of domestic violence. The officer's investigation revealed that one of the Petitioners, L.A.W., had been battered by her son. The child had been involved in pastoral counseling for his aggressive behavior. Petitioner, K.W., advised the police officer that the child, W.A.W., would be moving from the residence because of his continuing inappropriate behavior. On April 7, 2002, another incident of domestic violence was reported and investigated. On this occasion, the two younger children of Petitioners were involved in an altercation that resulted in Petitioner, K.W., being rendered unconscious by a blow to the head with an object delivered by one of the children, C.W. C.W. was arrested for aggravated battery. In February 2003, Petitioners desired to keep a six- month-old, unrelated child in their home. The child was placed in the home contingent on C.W.'s moving from the home and not residing in the home. Petitioners agreed to this contingency of placement, and the child was placed in Petitioners' home. On November 5, 2003, Petitioners applied to be licensed as foster parents. Ten days after Petitioners applied to be licensed, another incident of domestic violence occurred. On November 15, 2003, two of Petitioners' adult children got into a fistfight which resulted in one having a broken nose. As a result, W.A.W. was arrested. At the time of the altercation, W.A.W., 21 years old and the oldest child who had moved out at an earlier time as a result of his behavior, was residing at Petitioners' residence. Although the police report indicates that the incident occurred at Petitioners' residence, the testimony indicated that it occurred "down the street." All three of Petitioners' children continue to reside locally and frequent their parents' home. Petitioners are highly recommended by a representative of The Children's Home Society, a Guardian ad Litem, and their pastor. Respondent has the responsibility of placing foster children in a safe setting. But for the behavior of their children, Petitioners would qualify for licensure. As long as Petitioners' children frequent Petitioners' residence, any child placed in that residence is at risk. As a result, Petitioners are not qualified to be licensed as foster parents.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services enter a final order denying the foster care license application of Petitioners. DONE AND ENTERED this 12th day of January, 2005, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of January, 2005. COPIES FURNISHED: Thomas J. Thompson, Esquire Thomas Thompson, P.A. 100 South Washington Avenue Titusville, Florida 32780 Richard Cato, Esquire Department of children and Family Services 400 West Robinson Street, Suite S-1106 Orlando, Florida 32801-1782 Paul Flounlacker, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
The Issue The issue in this case is whether Petitioners should be issued a family foster home license.
Findings Of Fact Based upon the testimony, exhibits, and stipulated facts in the Joint Stipulation, the following Findings of Fact are made: Parties and Process Petitioners, who are husband and wife, submitted an application for licensure as a family foster home. Although this was an application for initial licensure, Petitioners were previously licensed as a foster home from August 2013 to October 2019.1 The Department is the state agency responsible for licensing foster care parents and foster homes, pursuant to section 409.175, Florida Statutes, and Florida Administrative Code Chapter 65C-45. Petitioners voluntarily relinquished their foster home license on or about October 28, 2019, around the time two female foster children, S.W. and H.C.S., were removed from their care. It is unclear whether the children were removed because of an abuse investigation related to H.C.S., or whether they were removed because Petitioners closed their home to foster children. Regardless, Mrs. Gilio testified that they let their license lapse because they needed a break after fostering H.C.S. The Department administers foster care licensing by contracting with third-party private entities. In Circuit 13, where Petitioners are located, the Department contracted with Eckerd Community Alternatives, doing business as Eckerd Connects (Eckerd), to be the agency responsible for facilitating foster care licensing. Eckerd has subcontracted with Children's Home Network (CHN) to facilitate foster care licensing. 1 Petitioners had previously been denied a foster care license in 2009. At the time relevant to Petitioners, the Department used the "attestation" model of foster home licensing. In this model, a private licensing agency with whom the Department has contracted will conduct a home study on the foster home applicants and attest to the applicants' fitness to be licensed. The Department does not have the discretion to deny the license once the licensing agency has attested to the appropriateness of the applicants, except if they have been named as caregivers in three or more abuse reports within five years. If there are such abuse reports, the Department is required to review those reports and make a final decision regarding the application. There is no requirement that the reports result in a finding of actual abuse for them to be reviewed by the Department.2 Although it is unclear when Petitioners submitted their application for the foster care license in this case, sometime in late 2019, CHN conducted and compiled a Unified Home Study (home study), which included Petitioners' background screening; previous reports of abuse, abandonment, or neglect involving the applicants, and references from all adult children. The home study was reviewed at a meeting on December 19, 2019, by Eckerd, through the Committee. The Committee considered the application, home study, and licensing packet and heard from various agency staff. Petitioners were also allowed to voice comments and concerns at this meeting. Had the Committee approved the application, it would have been sent to the Department along with an attestation that stated the foster home meets all requirements for licensure and a foster home license is issued by the Department. However, the Committee unanimously voted not to recommend approval of a foster home license to Petitioners. 2 The categories of findings for an abuse report are "no indicator," "not substantiated," and "verified." "No indicator" means there was no credible evidence to support a determination of abuse. "Not substantiated" means there is evidence, but it does not meet the standard of being a preponderance to support that a specific harm is the result of abuse. "Verified" means that there is a preponderance of credible evidence which results in a determination that a specific harm was a result of abuse. Frank Prado, Suncoast Regional Managing Director for the Department, ultimately decided to deny Petitioners' application for a family foster home license due to their prior parenting experiences, the multiple abuse reports regarding their home, and the recommendation of the Committee. Mr. Prado expressed concern about the nature of the abuse reports and Petitioners' admission that they used corporal punishment on a child they adopted from the foster care system in the presence of other foster children. Petitioners' Parenting History Petitioners have seven children: one is the biological son of Mr. Gilio; another is the biological son of Mrs. Gilio; and five were adopted through the foster care system in Florida. Of these seven children, six are now adults. Three of the adopted children, Jay, Sean, and Jameson, are biological brothers who Petitioners adopted in 2001. Shawna, who was adopted around 2003, is the only adopted daughter. The Petitioners' one minor child, H.G., is a nine-year-old boy and the only child who resides in their home. H.G. suffers from oppositional defiance disorder. Petitioners admitted they adopted Shawna after there had been allegations of inappropriate behavior made against Jay, by a young girl who lived next door to Petitioners. Later, while they were living with Petitioners, Jay, Sean, and Jameson were arrested for sexually abusing Shawna at different times. As a result, one or more of the sons were court-ordered to not be around Shawna, and the other brothers were required to undergo treatment and never returned to Petitioners' home. During the hearing, both Petitioners seem to blame Shawna, who was nine years old when the sexual abuse by Jay in their home allegedly began, for disrupting their home. They accused her of being "not remorseful" and "highly sexualized." Regarding the abuse by Sean and Jameson, which occurred when Shawna was approximately 12 years old, Mr. Gilio stated Shawna thought it was okay to have sex with boys, and it was "hard to watch every minute of the day if they're, you know, having sex." When Shawna was about 19 years old, she filed a "Petition for Injunction for Protection Against Domestic Violence" against Mr. Gilio in circuit court. The Petition outlined allegations of past sexual comments and inappropriate disciplinary behavior from 2007 to 2012, while she lived with Petitioners. Mr. Gilio denied at the hearing having any knowledge about the Petition against him, but admitted he made comments about Shawna's breasts. As part of the application and home study process, the CHN collected references from Petitioners' former foster children and adult children. Shawna (Petitioners' only adopted daughter) gave them a negative reference and specifically stated she would not want female foster children to live with Petitioners. Reports of Abuse Petitioners were involved in 24 abuse reports during their time of licensure between 2013 and 2019. During the past five years, Petitioners were named as either alleged perpetrators or caregivers responsible in eight reports that were made to the Florida Child Abuse Hotline (Hotline). Of those eight reports, five of them named Mr. Gilio as the alleged perpetrator causing a physical injury, one report named Mr. Gilio as the caregiver responsible for a burn on a foster child, and one report named Mr. Gilio as an alleged perpetrator of sexual abuse against a foster child. Mrs. Gilio was named as an alleged perpetrator of asphyxiation as to a foster child. Seven of the reports in the last five years against Petitioners were closed with no indicators of abuse. One of the abuse reports was closed with a "not substantiated" finding of physical injury. In this report, Mr. Gilio was the alleged perpetrator and the victim was H.G., Petitioners' minor adopted son. Additionally, after Petitioners let their foster license lapse in October 2019, a subsequent report was made against Mr. Gilio for improper contact with a former foster daughter. This incident was discussed at the Committee meeting, but it was unclear if this allegation was ever investigated. Corporal Punishment According to the Department's rules, discussed below, foster parents are forbidden to engage in corporal punishments of any kind. In 2019, there were two reports alleging Mr. Gilio of causing physical injury by corporal punishment on H.G. At the time, there were other foster children in the household. Technically, Mr. Gilio was allowed to use corporal punishment on H.G. because he was no longer a foster child and had been adopted from foster care. If a parent uses corporal punishment on a child, there can be no findings of abuse unless the child suffered temporary or permanent disfigurement. However, foster care providers are not permitted to use corporal punishment. More than one witness at the hearing had concerns about the use of corporal punishment against H.G. because of his operational defiance disorder and because other foster children (who may have been victims of physical abuse) were in the household. Brendale Perkins, who is a foster parent herself and serves on the Hillsborough County Family Partnership Alliance, an organization that supports licensed foster parents, testified she witnessed Mr. Gilio treating a foster child in his care roughly. At the time, she was concerned because this was not the way children in foster care (who may have previously been victims of abuse) should be treated. She did not, however, report it to any authorities. The Department established through testimony that the policy against using corporal punishment is taught to all potential foster families. Mr. Gilio, however, denied ever being instructed not to use corporal punishment against foster children or while foster children were in the home. He also claimed that H.G.'s therapist had never recommended any specific punishment techniques. The undersigned finds Mr. Gilio's testimony not credible. Cooperation with Fostering Partners The Department established that decisions regarding foster children are made within a "system of care" which includes input from case managers, guardian ad litem (GAL), and support service providers. The relationship between Petitioners and others working as part of this system during the time of fostering was not ideal; it was described by witnesses as "tense" and "disgruntled." One witness, a supervisor at CHN, testified Mr. Gilio was not receptive or flexible when partnering with other agencies, and was not always open to providing information when questioned. As an example, Petitioners fired a therapist without consulting with the CHN staff or the GAL for the child. At the final hearing, Mr. Gilio continued to claim he did nothing wrong by not consulting with others in the system regarding this decision. Kristin Edwardson, a child protection investigator for the Hillsborough County Sheriff's Office, was tasked with investigating the reports of abuse and neglect against Petitioners that had been reported to the Hotline. She testified she was concerned with the level of cooperation they provided her and other investigators. Although they ultimately would cooperate, Petitioners made it difficult for the investigators and would often "push back" and make the situation more stressful. She described Mr. Gilio as being disrespectful, belittling, and dismissive of her. Licensing Review Committee On December 19, 2020, the Committee, made up of eight individuals, was convened to review Petitioners' application for a foster home license. When determining whether a family should receive a foster home license, the Committee is to evaluate the applicants' background, parenting experience, references from community partners, and the family's openness and willingness to partner. Sheila DelCastillo, a regional trainer with the GAL program, was a Committee member. She had prior knowledge of Petitioners from a report that a foster child's room in Petitioners' home smelled strongly of urine during a home visit and that GAL staff had found a prescription bottle beside the child’s bed that belonged to Mr. Gilio. With regards to Petitioners' application, she read the licensing review packet and home study that contained numerous abuse reports. Ms. DelCastillo was concerned about the 24 abuse reports Petitioners’ received during their time of licensure, the negative reference from Shawna, their use of corporal punishment on H.G., and Petitioners' downplaying of the events that led to multiple abuse reports. Michelle Costley, a licensing director with CHN in charge of level 2 traditional foster homes, also served on the Committee. Ms. Costley has 14 years of experience, with seven of those years spent in foster care licensing. As director of licensing, Ms. Costley was concerned about the number of abuse reports received regarding Petitioners; Mr. Gilio's inability to be open and flexible when working in partnership with other agencies; and the needs of Petitioners' child, H.G. She was also concerned about Petitioners' decision to fire a therapist of a foster child without consulting the GAL or the other individuals involved with that child. Regarding the alleged abuse, Ms. Costley was concerned that most of the reports regarding Petitioners involved allegations of physical abuse, inappropriate touch of a sexual nature, or sexual abuse, with most alleged victims being younger than eight years old. She explained that even though these reports could not be "verified," these types of allegations are harder to establish because testimony by children of that age often is unreliable and there usually must be evidence of physical injury, which no longer is present by the time the alleged abuse is investigated. Ms. Perkins also served on the Committee. Ms. Perkins served as a foster parent mentor, working with foster parents to help them build co- parenting strategies and navigate the system of care. She has been a licensed foster parent for 13 years and has adopted 11 children from foster care. As stated earlier, she was familiar with Petitioners from the Hillsborough County Family Partnership Alliance meetings. Ms. Perkins was concerned with the number of abuse reports with similar allegations, but different victims. She also discussed Petitioners' use of corporal punishment, noting that they could have been using verbal de-escalation methods instead of corporal punishment due to the traumatic histories of many foster care children. Ms. Edwardson also served on the Committee. In addition to her personal interactions with Petitioners, Ms. Edwardson was concerned about the totality of the information presented to the Committee regarding the abuse reports and Mr. Gilio's lack of cooperation. She noted that although they were not substantiated, the number and nature of the reports related to young children were of concern. Based on the Committee notes and transcript of the meeting, Petitioners were allowed to respond to the Committee's questions at the December 2019 meeting. They argued that none of the abuse reports were proven true and any injuries were not their fault. They seemed more concerned about who made the abuse reports and why the abuse reports were called in than whether the foster children were protected in their care. For example, although Mr. Gilio admitted to hitting H.G. with a stick twice as big as a pencil, he denied any bruising was caused by the stick. A report of a burn on another child was explained by Mr. Gilio as an accident that occurred while he was teaching her how to iron; he could not understand why this was reported as possible abuse. Ms. Gilio explained that H.C.S. was a very active child which resulted in her needing stitches and requiring restraint. After hearing from Petitioners, the Committee members discussed their concerns that Petitioners were not forthcoming about the various abuse incidents, and would not take responsibility for any of the injuries or issues raised by the abuse reports. All eight members voted to not move Petitioners' application forward.
Recommendation Based on 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 Families denying a family foster home license to Petitioners, Mary and James Gilio. DONE AND ENTERED this 9th day of November, 2020, in Tallahassee, Leon County, Florida. S HETAL DESAI 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 November, 2020. COPIES FURNISHED: Anthony Duran, Esquire Tison Law Group 9312 North Armenia Avenue Tampa, Florida 33612 (eServed) Deanne Cherisse Fields, Esquire Department of Children and Families 9393 North Florida Avenue Tampa, Florida 33612 (eServed) Lacey Kantor, Esquire Department of Children and Families Building 2, Room 204Z 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed) Javier A. Enriquez, General Counsel Department of Children and Families Building 2, Room 204F 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed) Chad Poppell, Secretary Department of Children and Families Building 1, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed)
