The Issue The issue in this proceeding is whether the Department of Children and Family Services should revoke the foster care license of Joey and Donna Tolbert.
Findings Of Fact At all times material to this proceeding, the home of Joey and Donna Tolbert was licensed by the Department as a foster home. They were initially licensed provisionally in December of 1998 for one year. They received a regular license in 1999 and retained a regular license until December 1, 2000, when they were issued license number 1200-008-2, a child specific license with a capacity of two children. The Relicensure Process Prior to issuing the child specific license, two Department employees of the Department, Mary Martin, a relicensing counselor for foster homes, and Ann Brock, a family services counselor, conducted a relicensing visit to the Tolbert's home on October 12, 2000. Donna Tolbert was present but Joey Tolbert was out of town. During the home visit, a Bilateral Service Agreement (Agreement) was signed by Mrs. Tolbert and Ms. Martin. The Agreement was signed and dated by Mr. Tolbert and again by Ms. Martin on October 17, 2000. The relicensing visit resulted in a Foster Home Relicensing Summary written by Mary Martin. The Summary recommended that the Tolberts be issued a regular license effective December 1, 2000 through December 1, 2001, for the capacity of two children. The Summary was signed by Mary Martin on October 26, 2000, and read in pertinent part as follows: The Tolbert family is an invaluable asset to this Department. They have made themselves available on a regular basis for the placement of children when needed. Both Mr. and Mrs. Tolbert are experienced in childcare and they have three (3) children with special needs whom they adopted prior. They should not be asked to take numerous children with severe behavioral problems or teenagers. It appears Mr. and Mrs. Tolbert have satisfied the Florida Administrative Code, Chapter 65C-15, requirements. It is respectfully recommended that the Tolbert family be issued a REGULAR license, effective December 1, 2000, through December 1, 2001, for the a capacity of two (2) children, ages birth (0) through twelve (12) years of either gender. Children with severe behavioral problems and teenagers are not to be placed in the Tolbert home. However, Ms. Martin later wrote an addendum to the licensing summary. According to Ms. Martin, she was asked by her supervisor, Jill Green, to write the addendum. The addendum is undated but references the October 12, 2000, home relicensing visit that resulted in her original recommendation. There is also an entry dated October 16, 2000, which is a date prior in time to her signature to the original relicensure summary, and an entry dated November 17, 2000. The addendum relates to matters concerning the Tolberts and their adopted son, Mi.1/ Richard Messerly has worked for the Department for approximately 22 years and works in protective investigations in Pensacola. From June 1999 through September 2001, he was the program operations administrator for the central licensing unit of the Department. In that position, he had authority over foster care licensure. He supervised Mary Martin and her supervisor, Jill Green. Mr. Messerly signed Ms. Martin's relicensure summary on December 4, 2000, and initialed both pages of her addendum. He also created a written history of the Tolbert foster home which concluded with a recommendation that the Tolberts' foster home license be revoked: SUMMARY/RECOMMENDATIONS The Tolbert family has a positive licensing history of capably caring for many of our foster children. However, a serious change has occurred in the family's willingness to work with our staff, including rebuffing our attempts to offer them assistance with the disruption of an adoptive placement. The Tolberts have attempted to convince others that they had been requesting assistance for M for a very long period of time and that this is flatly not borne out in licensing records. The matter was never brought to our attention until the visit in October 2000, at which time the matter was promptly referred to the adoptions unit, who responded promptly. Since that time the family has not cooperated with any attempts to assist them in that matter, and they seem to be insensitive to M's plight, and are completely focused on regaining their prior licensed status, as if nothing had happened. Contacts with Pat Franklin, Kathi Guy, Sally Townsend and others reflect the absence of any prompt attempts to get help dealing with M's behaviors, yet many requests were made regarding foster children in their care with similar problems during the same time frame. It appears the family was more focused on attending the needs of foster children to the exclusion of sensitivity to their own (adopted) child's cries for help. Even when the needs were identified, the family was unwilling to become involved in attempts to remedy the problems and appeared to have given up on the child. I am very uncomfortable with the inappropriate position this family has taken in regard to our family safety staff, as well as licensing staff, and do not see how we can hope to interact positively with them given their recent radical behaviors and threats. I feel that they have violated the Bilateral Service Agreement and have failed to "Treat all members of the foster care team with respect and courtesy." I recommend that we revoke the license using the violation of the agreement in conjunction with their other oppositional behaviors, omissions, and misrepresentations reflected in family safety foster care and adoptions records. On December 1, 2000, Mr. Messerly signed a letter on behalf of Charles Bates addressed to the Tolberts which read: Dear Mr. And Mrs. Tolbert: Your home has been relicensed for the continuance placement of D and M.R. only. No other placements or overcapacity requests will be authorized at this time. A regular license is issued for twelve months pending the outcome of matters presently before the Circuit Court. If you have questions or wish to discuss this further, please contact Jill Greene, Foster Care Licensing Supervisor at (850)- 595-8451. On June 4, 2001, Mrs. Tolbert met with Charles Bates, District Administrator for District 1 of the Department. This meeting was at Mrs. Tolbert's request regarding her foster care licensure status. During that meeting, Mrs. Tolbert complained to Mr. Bates about certain adoption case workers. On August 24, 2001, Charles Bates sent a letter to the Tolberts notifying them of the revocation of their license. The letter reads in pertinent part as follows: RE: Revocation of Foster Home License. Dear Mr. and Mrs. Tolbert: This letter is to inform you that the Department of Children and Families has made a decision to revoke your foster home license. The basis for this decision is your failure to comply with Florida Administrative Code 65C-13 and the Bilateral Service Agreement (form CF-FSP 5226) which you executed. Florida Administrative Code 65C-13.009(1)(e)5. states: Work in a partnership. Develop partnerships with children and youth, birth families, the department, and the community to develop and carry out plans for permanency. Florida Administrative Code 65C-13.010(1)(c)1. states: Substitute care parents are expected to work cooperatively with the counselor as a member of a treatment team in seeking counseling, participating in consultation, and preparing and implementing the performance agreement or permanent placement plan for each child. Florida Administrative Code 65C-13.010(4)(i) states: The substitute care parents must be able to accept supervision by department staff and participate in and support case plans for children in their homes. Specifically, substitute care parents must be included in the development of performance agreements or permanent placement plans, and in the carrying out of these plans. As part of your foster care licensing, you executed a bilateral Service Agreement. The Bilateral Service Agreement that you signed enumerated the Administrative Code responsibilities and detailed responsibilities of foster parents. The paragraphs violated are listed below in pertinent part: h. To notify the department immediately of a potential change in a family composition, significant health changes or any other condition that may affect the child's well- being. Obtain authorization from the department prior to spending money for which repayment is expected. To accept the direction and supervision given by department to assist in caring for the foster child. To work cooperatively with the department to attend scheduled meetings to discuss the child and his family and to meet the needs of the child. To treat all members of the foster care team (i.e., the department, child's family, and GALS) with respect and courtesy. As stated in the service agreement, non-compliance with any of the above provisions can result in termination of the service agreement and may also result in the department revoking the home's license. You have failed to comply with the above code citations and service agreement provisions in that you have accused departmental staff of failing to disclose complete information to you and of misrepresenting statements that you have made. You have not worked cooperatively with the department employees who offered to assist you and your child; and have not worked in partnership with the department. Specifically, you have previously stated you were obtaining therapy for a child, didn't agree with the therapist's recommendation, and were obtaining a psychiatric evaluation and assessment for the child, when in fact you did not do any of those things. A review of the department records reflected concerns you mentioned to the department in October 2000, regarding your child's disruptive behavior. However you would accept no assistance even though the department offered extensive assistance. You surrendered your adopted child later that same month. Further, you have stated to a department employee that Ms. Peggy Custred and Ms. Sally Townsend should not work for the department, have accused them of wrongdoing, and have stated that you "will have their jobs." You have failed to treat members of the department with respect and courtesy. Given the above problems, I find that it would not be in the children's best interests to continue licensing your foster home and am permanently revoking your license. The Tolberts as foster parents The overwhelming evidence shows that the Tolberts were excellent foster parents. Jane Crittenden, licensing supervisor for the Department, who was a foster care supervisor at the times material to this proceeding, acknowledged that the Tolberts received the award of Foster Parents of the Year in May of 2000 for the year 1999. She also acknowledged that as far as she knew, the Tolberts excelled as far as their work as foster parents; the foster children in their care did quite well; the Tolberts always seemed to provide a loving, nurturing home to foster children placed there; the Tolberts were called on by the Department to take extra children beyond their cap, which they agreed to do; and the Tolberts cooperated with her and her case workers during the period of time she worked with them. Arlene Johnson, a former guardian ad litem for a foster child in the Tolberts' home from December 1998 until July 1999, visited the Tolbert home about twice a week during that time. She has been in a lot of foster homes and described the Tolberts' home as "the best one I've been in." Gerald Reese, a family service counselor for the Department, worked with the Tolberts over a period of 6 to 7 months in 1999 and 2000 while he was a case worker. During that time, Mr. Reese did not have problems dealing with the Tolberts, did not observe any instance in which the children were not adequately provided for, and observed that the foster children in the Tolberts' home were happy. Richard Messerly acknowledged that the Tolberts were exemplary foster parents as far as the care they provided to the foster children in their care. Mr. Messerly also acknowledged that the only staff the Tolberts had problems with were particular members of the adoption staff, not the Department's foster care staff. The wallpaper expense Carlita Bennett was employed by the Department from 1986 until March of 2002. When she was working for the Department in the capacity of a foster parent recruiter in May of 2001, she sent an e-mail message to Mary Martin regarding the Tolberts which contained the following: 11/04/99 A restitution claim form was submitted by Mrs. T for damage to wallpaper caused by 2 yr. Old. The bill total was $1,151.04 to replace wallpaper in living room, dining room, kitchen and hall. PS Counselors were not made aware of the damage until repairs were made. According to Ms. Bennett, it is regular procedure for someone from the department to go out to a foster home and look at damage before repairs are made. The Bilateral Services Agreement requires the foster parents to obtain authorization from the Department prior to spending money for which repayment is expected. According to Ms. Bennett, this policy was not followed in this instance. Ms. Bennett did not explain why she sent the e-mail message on May 30, 2001, to Mary Martin referencing an incident that took place two and one-half years earlier. According to Mrs. Tolbert, a former two-year-old foster child in her care ripped the wallpaper in the dining room and the living room. Her dining room, kitchen, and hallway are all one color. According to Mrs. Tolbert, she gave an estimate of the repair work to Shiela Campbell, an employee of the Department. Richard Messerly acknowledged that this matter of the expense for wallpaper would not in and of itself have resulted in the Department revoking the Tolberts' foster care license. At most, the Department would have only talked to the Tolberts had there not been other issues about which the Department was concerned. Notification to Department of change of condition The August 24, 2001, revocation letter from Mr. Bates alleged that the Tolberts failed to notify the Department of a potential change in conditions in the home that might affect the well-being of foster care children in the home. This allegation relates to behavior problems of the Tolberts' adopted son, Mi. The Tolberts adopted Mi. in September of 1998. They signed surrenders of Mi. in November of 2000. The Tolberts' surrender of Mi. was central to the Department's decision to revoke the Tolbert's foster care license.2/ Mi. began having serious behavior problems in 1999. Mrs. Tolbert recalls telling Gerald Reese, the foster care worker assigned to the Tolberts at that time, about problems with Mi. Mr. Reese acknowledged that Mrs. Tolbert mentioned to him problems she was having with Mi. to which he responded that she should bring it to the attention of the adoption case worker. The Tolberts' adoption case worker was Sally Townsend. Mrs. Townsend recalls that Mrs. Tolbert stopped by her office three times when Mrs. Tolbert was in the Ft. Walton Beach Service Center to see other department employees. Mrs. Townsend acknowledged that Mrs. Tolbert told her of behavior problems with Mi. the first time she stopped by Mrs. Townsend's office. The second time Mrs. Townsend recalls that Mrs. Tolbert told her Mi.'s behavior problems were better. The third time, however, Mrs. Tolbert informed Mrs. Townsend that Mi.'s behavior was much worse. Mrs. Tolbert remembers these encounters with Mrs. Townsend differently. According to Mrs. Tolbert, she met with Mrs. Townsend approximately 10 times during which she spoke to her about Mi.'s behavior problems. According to Mrs. Townsend's case notes, Mrs. Tolbert told her on October 24, 2000, that Mi. was urinating all over the house, had gotten a butcher knife out of a drawer in the kitchen, and shoved a puppy's head under a piece of furniture. Evidence was presented at hearing regarding whether or when the Tolberts received notice that Mi. had significant problems before he was adopted by the Tolberts. However, what is important for purposes of this proceeding is when was the Department notified of Mi.'s problems. The Department knew of Mi.'s previous problems prior in time to the Tolberts adopting Mi. and were told as early as 1999 that the Tolberts were experiencing behavior problems with Mi. Kathi Guy is an adoption program specialist for the department. She met with the Tolberts immediately after Mrs. Tolbert met with Mr. Bates on June 4, 2001. On June 21, 2001, she wrote a memorandum to Charles Bates concerning the issues relating to the Tolberts. Regarding the issue of the Tolberts' responsibility of notifying the Department of Mi.'s behavior in relation to the foster children in the home, Ms. Guy wrote, "It is unclear what responsibility the Tolberts had to inform Central Licensing of M's behaviors that may have had injurious effects on foster children in their care." Working in partnership The June 24, 2001, revocation letter alleges that the Tolberts failed to work in partnership with the Department and did not obtain certain services for Mi. although they were offered. It is important to remember that the provisions to which Mr. Bates' revocation letter references are part of the Bilateral Services Agreement that pertained to the Tolberts' role as foster parents. However, Mi. was their adopted son, he was not a foster child at that time. Further, there is ample evidence in the record that the Tolberts sought and received services for Mi. over time, although they were in disagreement with the Department regarding certain services during the time immediately preceding the surrender of Mi. Marianne Vance is a first grade teacher. Mi. was in her class for two years. According to Ms. Vance, Mi. received testing in school for learning disabilities and for "everything possible." When Mi.'s behavior problems became worse during his second year in Ms. Vance's class, Mrs. Tolbert sought assistance from the school. The school counselor worked with Mi. and Mrs. Tolbert. According to Ms. Vance, the Tolberts did everything possible in seeking help or assistance.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Children and Family Services enter a final order rescinding its revocation of the Tolberts' foster care license. DONE AND ENTERED this 31st day of July, 2002, in Tallahassee, Leon County, Florida. BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of July, 2002.
The Issue Whether Petitioner’s request for a foster home license should be denied due to her alleged failure to comply with foster care licensing requirements.
Findings Of Fact Since 2006, Petitioner has held a foster care license, issued by the Department through Citrus, which is a child placing agency ("CPA"). Since becoming a foster parent, there have never been any concerns raised as to the care Petitioner provided to the foster children. Every year, Petitioner entered into a Bilateral Service Agreement with Citrus. The Agreement identifies the responsibilities of both the foster parents and Citrus on behalf of the children served in the foster care program. Under the heading “Foster Parent Responsibilities to the CPA” the Bilateral Service Agreement provides that the foster parent is required: To notify the CPA immediately of a potential change in address, living arrangements, marital status, family composition (who is in the home), employment, significant health changes or any other condition that may affect the child’s well-being. To notify the CPA promptly of all contacts the family or any member of the home has with police or any law enforcement agencies. In the summer of 2010, Citrus sent a letter to all foster parents reminding them that all family members or visitors who frequent the home on a daily basis, or sleep overnight, or have constant contact with the foster children, must have background checks completed. In the fall of 2010, for the annual review for the upcoming year of 2011, Citrus conducted a home study, which included an announced visit and inspection of the home. The Citrus consultant who conducted the home study recorded that Warren Clark (Clark), Petitioner’s son, was living in the home. Petitioner’s daughter was listed as a family member that did not live in the home and was not a frequent visitor. She conducted a background screening on Clark, and discovered that Clark had been arrested twice for battery/aggravated assault charges in May, 2010. If Petitioner’s daughter had been listed as a household member or frequent visitor, the consultant would have conducted background screening on the daughter as well. During her announced visit, the consultant saw Clark’s room, and only noticed male belongings. She did not see any kind of female items, such as jewelry, makeup, or female clothing. Petitioner never reported Clark’s arrests to Citrus. At the hearing, she testified that she was unaware of her son’s arrests, and was only made aware of the arrests when the Citrus consultant told her about them. Her son testified that he had never told his mother about the arrests because he was embarrassed. The undersigned does not find this testimony credible, as it is self-serving in nature and is not plausible, given that Petitioner’s son lived with Petitioner and was arrested twice in one month. It was ultimately Petitioner’s duty to be informed of any involvement between a household member and law enforcement, and to promptly notify the Department. On January 27, 2011, a foster care licensing staffing was held. Petitioner agreed to have her son move out of her home, due to the nature of the arrests. To memorialize the agreement reached during the meeting, Petitioner signed a statement indicating that she would have her son move out of the foster home, and that she understood that if her daughter was going to be a frequent visitor, her daughter needed to be fingerprinted. The statement also indicated that any violation of this agreement might result in revocation of her foster home license. This statement was dated February 22, 2011. During the exit interviews of two of Petitioner’s foster care children, the children reported that Petitioner’s daughter lived at the foster home. Citrus and the Department conducted an unannounced home visit on March 10, 2011. Dulce Pupo, a Citrus Foster Care Licensing Supervisor, and Ada Gonzalez, a Department Licensing Specialist, conducted the visit. Present at the home were two foster children, Petitioner, Petitioner’s daughter, and a tutor for one of the foster children. One foster child, who was approximately 12 years old, told Ms. Gonzalez that Petitioner’s daughter lived in the home, and pointed out her bedroom. When Ms. Gonzalez approached the room that had been indicated, Petitioner asked her not to enter that room, because it was messy. Ms. Gonzalez entered the bedroom, and found items that belonged to a woman; she photographed women’s jewelry, skin products, perfumes, women’s clothing, women’s shoes, and a curling iron that she saw in the room. Petitioner told Ms. Gonzalez that the items were her daughter’s items, but that her daughter did not live at the foster home. On March 11, 2011, a staffing was held. Petitioner attended and admitted that her daughter was living at her home. At the hearing, Petitioner explained that during this staffing, she was very upset, and misspoke when she stated that her daughter lived in her foster home. She, did, however, admit that her daughter was a frequent visitor, and that she should have reported that fact to Citrus. On May 9, 2011, the renewal of Petitioner’s foster care license was denied by the Department.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Children and Families enter a final order finding that Petitioner violated section 409.175(9), Florida Statutes, and deny Petitioner’s request to renew her foster home license. DONE AND ENTERED this 27th day of October, 2011, in Tallahassee, Leon County, Florida. S JESSICA E. VARN 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 27th day of October, 2011.
The Issue The determinative issue in this cause is whether Petitioners "abused" and "neglected" foster children in their care, as those terms are defined in Sections 39.01(2) and 39.01(45), Florida Statutes (2000). As a result of the alleged abusive neglect, two subsequent issues are raised: (1) whether Petitioners' foster home license should be revoked for the reasons as stated in the Administrative Complaint dated July 20, 2001; and (2) whether Respondent's denial of Petitioners' requests to adopt the "M" sibling and to adopt the "T/S" sibling foster children, based primarily upon the allegations in the Administrative Compliant dated July 20, 2001, as explained in a denial letter dated January 18, 2002, was appropriate.
Findings Of Fact Based upon observation of the witnesses and their demeanor while testifying in person and by taped interviews, the documentary materials received in evidence, stipulations by the parties, evidentiary rulings during the final hearing, and the entire record compiled herein, the following relevant and material facts are found. At all times pertinent to the issues herein, Respondent, the Department of Children and Family Services, was the state agency responsible for receiving and approving applications for foster care licenses and for monitoring, regulating, and if necessary, suspending or revoking foster parent licenses pursuant to Section 409.175, Florida Statutes. At all times pertinent to the issues herein, Respondent, the Department of Children and Family Services, was the state agency responsible for receiving, evaluating, approving or denying applications for adoption of foster children pursuant to Section 63.062, Florida Statutes, and Chapter 65C-16, Florida Administrative Code. Petitioners' Foster Care Licensure History Petitioners are married and are the parents of two biological children. Mrs. Sawyer was reared with foster children and has always desired to become a foster parent. Petitioners were initially licensed by the Agency as foster parents in October of 1986, and six months later on April 20, 1987, Petitioners voluntarily closed their foster home due to Mrs. Sawyer's complications with the pregnancy of their second child. During the above six-month licensed period, Petitioners successfully fostered ten children, the last child was removed by the Agency from the foster home in March 1987. In December 1986, two months after initial licensing, Petitioners were the subject of an abuse report alleging spanking a child. The Agency's investigation concluded that the abuse report was "unfounded,"4 and closure was recommended by the Agency's investigator. On September 7, 1987, the Agency again licensed Petitioners as foster parents. Eight months thereafter, on May 23, 1988, the Agency again closed Petitioners' foster home. On August 10, 1988, three months later, the Agency, for the third time, licensed Petitioners as foster parents. Mrs. Sawyer acknowledged using corporal discipline on a foster child during the 1988 licensure period. As a result of the corporal punishment incident in 1988, the Agency required Petitioners to attended its Model Approach to Partnership in Parenting (MAPP) classes, which Petitioners attended and completed. The 1988 licensure of Petitioners as foster parents was specifically granted for the "T/S" sibling group who, with voluntary permission of their biological parents, had been living with Petitioners for approximately two months before their official placement with Petitioners by the Agency. Since 1988, the Agency has annually renewed Petitioners' foster care license.5 Responding to the requests of the Agency, Petitioners on occasions fostered as many as 16 to 20 foster children. Petitioners' foster home was frequently used by the Agency for unannounced "overnight" foster care, many of which extended into protracted foster care periods. During periods when the Agency's need for foster home beds was pressing, the Agency's rule-of-five was waived by the Agency's District Administrator so that Petitioners could and did house more children.6 The record reflects no evidence of complaints of abuse or any other complaints during the periods the Agency needed and made use of Petitioners' home to foster children. The evidence of record, viewed chronologically, reflects a protracted period of intense investigation of allegations which, if true, were apparently ongoing over a period of months prior to the filing of Abuse Report 2000-198255, the basis of the Agency's intended revocation of Petitioners' foster care license. Petitioners' latest license was issued on August 24, 2000, and was effective until August 24, 2001. This August 24, 2000, foster home license is the subject of the Agency's revocation notice, which states: The revocation is based on the following reasons: Between December 21, 2000 and March 1, 2001, the Department of Children and Families investigated eleven reports of abuse and neglect involving your home. In Florida Abuse Hotline Report 2000-198255[7] it was concluded that there were verified findings of excessive corporal punishment and confinement, bizarre punishment and excessive restraint committed by Cynthia Sawyer towards several foster children in her care. The report also noted several instances of inappropriate physical punishment, which is a violation of the foster parent disciplinary policy. These incidents are considered "an intentional or negligent act materially affecting the health and safety of children in the home or agency" and a violation of the licensing rules promulgated pursuant to section 409.175, Florida Statutes. Section 409.175(8)(b) 1 and 2 Florida Statutes; 65C- 13.010(1)(b)5 Florida Administrative Code. (emphasis added) The Agency's allegations of neglect and abuse revolved around four specific types of disciplinary activities that are alleged to have occurred on or after August 24, 2000, the date the current foster care license was issued, and to have terminated on or before March 1, 2001, the date the Agency removed children from Petitioners' home. The four specific types of disciplinary activities are: (1) excessive corporal punishment and confinement, (2) inappropriate physical punishment, (3) bizarre punishment, and (4) excessive restraints.8 In support of those allegations, the Agency presented the testimonies of several foster children, video- taped interviews of three foster children made in March 2001, approximately one month after removal from Petitioners' home; the testimony of another foster care parent; the testimony of a Guardian Ad Litem; and the testimonies of several of the Agency's employees. Mike Katz, agency employee, prepared the Administrative Complaint but had no personal knowledge of the abuse allegations contained in Abuse Report 2000-198255, which formed the basis for the Administrative Complaint he prepared. Mr. Katz acknowledged that his understanding of the Agency's practice and policy was that "one incident of corporal punishment" did not equate to foster care license revocation. According to Mr. Katz, evaluating corporal punishment allegations requires all factors be taken into consideration and the totality of circumstances be reviewed; the intended result is a fact specific determination for each case of alleged corporal punishment. Kate Kimball's, the Sawyers' family service counselor, testimony was primarily concerned with agency reports dating from December 3, 1996, through the year 2000. Her testimony regarding and relating to matters that occurred prior to December 21, 2000, are not relevant nor material to issues of foster home license denial as stated in the Administrative Complaint that is challenged by Petitioners. However, Ms. Kimball's testimony regarding the Sawyers' life-style during the period she was their case worker is relevant and material to the issue of denial of the Sawyers' application to adopt the "M" children. The record reflects that in 1999, while fostering the "T/S" and the "M" siblings under the Agency's District Administrator's waiver of the rule-of-five policy, Petitioners were given an "Above Satisfactory" evaluation by the assigned foster care case worker, Kim Bryant. Ms. Bryant reported that the Sawyers are "very involved, supportative of the children's extra curricular activities and educational needs; show children much needed attention and affection; children and foster parents seem very fond of each other and there is much improvement with the children educationally and emotionally and they appear to have adjusted well in the home." Ms. Bryant's report is undisputed and credible. One year later, Hotline Report 2000-078274 was filed containing an allegation of medical negligence against Mrs. Sawyer as a result of her attempt to refill a prescribed medication for a foster child in her care after the child had taken all the medication. In this particular instance, the Agency had failed to provided Mrs. Sawyer with the child's medical record when the child was placed in her foster home. This medical negligence allegation was resolved when the case worker assigned to the Sawyers secured from the child's file the physician's prescription refill order. The Hotline Report was closed by the Agency with "No indicators of alleged maltreatment-or abuse/neglect." On June 26, 2000, and after the Sawyers added separate bedrooms and bathrooms for the girls and separate bedrooms and bathrooms for the boys to their home to accommodate 16 children, their case worker, Ms. Kimball, wrote, "It appeared that the Department has continued to utilize their home, as we have had no alternatives." The home study case worker's comments are revealing and reliable. It is reasonable to infer that the Agency was satisfied with the Sawyers' methods of disciplining foster children in their home, when they met the Agency's need for foster beds. However, when the Agency's need for foster beds were apparently met by other resources their prior position of satisfaction with the Sawyers, for reasons not entirely clear from the record, took a sudden 180-degree turn-about from satisfaction to dissatisfaction, within a six-month time period from June 26, 2000, to December 21, 2000. The case worker assigned to the "M" children, Anjanet Stilwell, reported that the Sawyers' foster home was "a wonderful foster home--they were very cooperative and caring." Case worker, Karen Braden, who was in the home twice weekly regarding kids assigned to her, wrote, "Cindy is great! I have no concerns regarding placement of my kids. I truly don't know how she does it!" I find Ms. Stilwell's and Ms. Braden's opinions acceptable and reflective of the Agency's approved satisfactory view of the Sawyers as foster parents for many children who were housed solely by the Agency's waiver of its rule-of-five policy and for its benefit. One foster care referral report regarding the "T/S" children written by case worker Heather Blair was considered at the Adoption Applicant Review Committee (AARC) staffing. In her report, Ms. Blair summarized Psychologist Lisa Gaise's conclusions that: "3 T/S children reported being paddle [sic] and 'the context in which these clear disclosures were made was so natural as to dispel any questions of the veracity of their statements.'" Apparently the AARC staffing considered Ms. Gaise's comments credible in their decision to deny the adoption application. The fact of the matter is that Ms. Blair's statement regarding the "truth" and acceptance of Lisa Gaise's opinion that the child's statement were true, is not accepted for the truth asserted and, therefore, is not credible.9 Bobby Cooper, another agency witness, commenced his investigation of Abuse Report 2000-198255, on December 21, 2000, at 4:00 p.m. Mr. Cooper's investigation consisted entirely of reviewing reports of other agency investigators. Mr. Cooper had no personal knowledge nor had he personally sought independent collaboration of statements contained in the reports he reviewed. His testimony is not credible. Kate Kimball, the case worker assigned to Petitioners' foster home, often made announced and unannounced visits to Petitioners' foster home, as required by Agency policy. Ms. Kimball was in close and constant contact with the foster children and the foster parents during her visits to the home. Ms. Kimball was required to (1) observe the foster children, speak in confidence with each child individually, immediately report any "signs" of abuse or "suspected abuse," and to (4) cause "removal" of a child or children from abusive foster home situations. Ms. Kimball never requested nor caused removal of a child from Petitioners' foster home during the period of December 21, 2000, through March 2001, the period the abuse reports were allegedly "verified." Detective Christi Esquinaldo was assigned to investigate this case by Hillsborough County Sheriff's Department. Her investigation consisted of interviewing foster child L.S., reviewing the abuse reports, and creating a matrix from those reports. The matrix consisted of Detective Esquinaldo's listing the names of children who were alleged to have been subjected to a specific abusive discipline crossed referenced by the names of the children who made the allegations. According to Detective Esquinaldo, L.S. told her that the Sawyers "made children stand in a corner for three to four hours" as punishment, and Lil David was restrained to a chair for "three to four hours." However, during her testimony at the hearing, L.S. denied having made those statements to Detective Esquinaldo. L.S.'s testimony at the final hearing is credible. In closing her investigation, Detective Esquinaldo recommended to the State Attorney's Office the direct filing of a felony charge of Aggravated Child Abuse against the Sawyers. The Hillsborough County State Attorney's Office, citing "numerous inconsistencies in the statements of the children," declined to file any charges against the Sawyers and closed their files on the matter. After reviewing the children's testimonies of record, I am compelled to agree with the Hillsborough County State Attorney Office that the "inconsistencies of the statements of the children" render their collective testimonies unreliable and insufficient to provide a preponderance of evidence necessary to establish a fact. None of the adult witnesses, presented by the Agency, possessed knowledge acquired through collaboration of the children's stories from independent sources and/or their investigations regarding the abuse allegations alleged in the Complaint. The Agency's employees' initial and total acceptance of the children's recollection of time, i.e. as "all day" and "all night," should have, but did not raise reasonable concern regarding each child's ability to differentiate between fantasy and reality and the child's accuracy of recall as well. The children's story-line, that Petitioners forced each of them to walk, to stand in time-outs, to dig holes, to sleep in their beds or do any other activities "all day" or "all night," was testified to as a form of punishment and not discipline for acting up. Accepting as true, accurate, and realistic, their identical versions of four specific experiences from the several children without more does not equate to credible nor collaborative evidence. The testimonies presented by several foster children at this hearing were, at best, confusing, conflicting and contradictory. When asked specific questions about the several forms and methods of discipline, the unanimity of their responses were: stand in the corner "all night," dig holes "all day," walk in circles "all day," and sleep in the bed "all day." The fact that the children's testimonies clustered in a certain position (sibling groups wanting to stay together as a group and those sibling groups wanting to be moved to another foster home as a group gave almost identical answers to questions relating to specific disciplines) does not mean nor imply that their testimonies were necessarily accurate, realistic, or true. In fact, the record reflects that several of the testimonies initially given by the children to the Agency were in conflict with their testimonies subsequently given to the Agency representatives and testimony given at the final hearing. Considering the children's testimonies in the context of the children's ages; the children's physical sizes; the physical improbability of a small child actually squatting, with knees bent, against a wall with both arms held out in front of the body or held out to the sides of their bodies all day; and their description of time as "all day" and "all-night," rendered their collective testimonies unrealistic, unreliable and, therefore, not credible. Steve Barber, Petitioners' pastor and the one who has interfaced with the foster children, based upon his experience as a former high school football coach, gave undisputed testimony that the physical size and stature of the young children made it physically impossible for any of them to "stand, squat, dig or walk in circles, all day." Based upon the testimony of Mr. Barber and the unrealistic testimonies of the several children, Respondent has failed to prove that Petitioners committed "excesses" in administering policy discipline, by imposing time-outs, separation from other children, grounding, loss of privileges, and by assigning other chores. I find that the cumulative testimonies of the foster children found in the Agency reports in evidence and of those children who testified at the final hearing unreliable, inconsistent, devoid of details, physically impossible in most instances and, therefore, insufficient to establish by a preponderance that the Sawyers subjected them to: (1) excessive corporal punishment and confinement, (2) inappropriate physical punishment, (3) bizarre punishment, and (4) use of excessive restraints as punishment as alleged in the Administrative Complaint filed in this cause. Of the three video-taped interviews reviewed by the undersigned, the interview of D.I. revealed a reliable and detailed account of the daily life and activities of the foster children in the Sawyers' home from an articulate child with personal knowledge and accurate recall of events. First, D.I. was in the Sawyers' foster care for a period of seven months. Second, D.I. appeared to be bright, intelligent, articulate, straight-forward, and he was definite and clear in his responses to questions asked by the Agency's spokesperson. Third, D.I.'s memory of details was complete, uncompromising, realistic, and reasonable. Fourth, D.I. acknowledged that his possibility of being reunited with his biological mother was nonexistent, and he would probably be in foster care until his majority, if not adopted, preferably by the Sawyers. Fifth, he is familiar with and aware of foster children, individually and as sibling groups "working the foster care system for their desired ends by telling stories." During his seven months' stay in foster care with the Sawyers, D.I. testified that he never saw nor was he made aware by other children of any child punished by the Sawyers in the form of being forced to stand in time-out "all day," forced to dig holes "all night," or forced to walk in circles "all day." D.I. knew that Lil L.S. pooped in her pants and smeared the poop over the walls of the foster care residence. He knows this because he was one of the older children who volunteered to clean the poop off the walls; he remembers these incidents because the walls had "white spots" where the cleaning solutions were used. He also remembered because Mrs. Sawyer would put white powder on the bedroom floor leading from Lil L.S.'s room to other parts of the house. In the morning when Lil L.S. was awaken and asked about poop on the walls, she would blame other children, but her foot prints would prove contradiction of the story of not having gotten out of bed during the night. According to D.I., Lil L.S. was never "hosed down outside" the house after pooping on herself. Each time Lil L.S. pooped on herself, Mrs. Cindy would require her to go into her bathroom10 and bathe herself. When asked about household chores and work around the house as a form of punishment, D.I. answered that older children would be offered the opportunity to "work outside" with Mr. Sawyer on "things around the house," only if that child wanted to work outside. If not, the child was given the option to stay outside and play or to go inside and watch T.V., play games, or do other things. D.I. was emphatic that the opportunity to do other things was made available to each child only after that child completed his or her homework. Homework was always first, and some children got in trouble because of not doing or completing their homework. According to D.I., the younger children who played outside would customarily play in the round-about driveway, the yard, and on the Jungle Jim play set. The older children would customarily do other things. D.I.'s examples of "doing things around the house" were: helping Mr. Sawyer work on his truck; putting together and/or repairing the Jungle Jim swing-slide play set; helping to dig a trench line to lay pipe for the new water heater connection; tending to and caring for the animals; planting trees and stuff; and painting and building additional bathrooms and bedrooms onto the house. According to D.I., all outside activities were made available to any children who wished to participate in them instead of playing among themselves. When asked, D.I. was empathic in his answer that no child, "as a form of punishment," was forced to assist Mr. Sawyer in "doing things around the house," if they wanted to help they could, if not, then other activities were available and that no child was handcuffed nor had he seen any (metal) handcuffs at the Sawyers' house, save his pair of red plastic toy handcuffs that came with a toy set the Sawyers gave him. D.I., from observation, knew Lil David to be self-mutilating.11 D.I. recalls that "Lil David would sometimes just pick himself to make himself bleed." During his seven-month stay and on more than one occasion, in passing, D.I. would see Lil David in bed at night with velcro restraints on his wrists and the bed to stop him from picking himself and making himself bleed. "Mrs. Cindy did this to keep Lil David from picking himself when he was asleep."12 Regarding meal times and meals at Mrs. Cindy's, D.I. stated that all the children ate the same meal at the same time "cause there was so many of us and Mrs. Cindy had no time for separate meals and we [older children] helped to feed the young children, we did help." When asked about peanut butter sandwiches as a form of punishment, D.I. responded, "Those children who had been bad or were in time-out at mealtime were separated from the other children and given peanut butter sandwiches to eat while in their time-outs. But Mrs. Cindy would say to them 'say you are sorry and you can join us.'" He never saw nor knew of a child in time-out (against the wall) for "hours." The longest time-out he could recall was about "20 minutes," and that was because the child was "acting up" in the time-out and had additional time added to the time-out. D.I. was familiar with the "T/S" and (other) siblings. He knew from personal experience in foster care that older siblings would instruct their younger siblings on all matters: what to say, when to say it, how to act, and how to act up. D.I. was personally familiar with "foster homes" and the means and methods of "getting out of one" and "staying together" as a sibling group and getting into another as a group. When asked about "corporal punishment" i.e. spanking with a wooden paddle and/or slapping with hands, D.I. testified that during his seven-month stay, he knew of no child to have gotten spanked with a wood paddle. "I never saw a wood paddle." Regarding "getting slapped by Mrs. Cindy" as punishment, D.I. answered that Ms. Cindy would "tap" you on the back of the head, butt, or shoulder "to get your attention, like if she was talking to you and you were watching T.V. and not answering her but she never slapped any of us for punishment." This method of getting one child's attention by touching is reasonable when considered in the context of the Agency's waiver of its rule-of- five policy so as to place as many as 16 to 20 children in the Sawyers' foster care home. 13 The video testimony of D.I. is accurate, detailed, reasonable, realistic, based upon his personal knowledge, undisputed and, therefore, credible. Based in part upon the video testimony of D.I., Respondent has failed to establish by a preponderance of evidence that the Sawyers subjected a foster child in their care to: (1) excessive corporal punishment and confinement, (2) inappropriate physical punishment, (3) bizarre punishment, and (4) use of excessive restraints for the time period alleged in the Administrative Complaint. The Sawyers' admitted use of velcro restraints on Lil David was neither excessive, punitive nor disciplinary, but rather was for Lil David's protection from harming himself. The Sawyers' used velcro restraints on Lil David during the day only when he was in time-out and sitting in a small rocking chair and during the night when he was put to bed. The evidence of record by testimonies of virtually every witnesses who knew Lil David knew him to be a self-mutilator. The use of restraints is an acceptable, preventative method for protection in this situation. The record contains no evidence that the Agency provided the Sawyers with an evaluation report of Lil David upon his placement nor during his stay within their foster home. Lil David's medical report would have advised the Sawyers of Lil David's self-mutilation problem. It is a reasonable assumption that had the Agency provided Lil David's medical records, the Sawyers would have been alerted to Lil David's self-mutilation problem and would have had the benefit of the Agency's instructions regarding care and protection for Lil David's problem of self-mutilation. The Sawyers' admitted use of velcro restraints reflects a caring and sincere effort of the foster parents to protect the child from hurting himself. In the absence of information from the Agency regarding Lil David's condition, the Sawyers' use of an acceptable, safe and preventative method of care for this particular problem reflects their efforts to comply with the "spirit" of the rules regarding foster parent responsibilities. The record contains no evidence that the Sawyers' use of velcro restraints to prevent Lil David's self- mutilation was "willfully harmful" or "neglect" or an "abusive" act of intentional punishment. Bobby Cooper's, child protection investigator, reported findings and conclusions were based entirely upon statements provided by individuals he interviewed. The record contains no evidence of collaboration to substantiate testimonies of the children. Therefore, Mr. Cooper's testimony is hearsay without support and therefore, not credible. Finally, consideration is given to what is not in evidence. First, the record in this case contains no evidence of a child alleged to have suffered ongoing neglect and abuse in the form of excessive, bizarre,14 and inappropriate punishment, or to have borne body marks or bruises resulting from the alleged treatment by the Sawyers. Second, the record in this case contains no evidence of a Sawyer-housed foster child to have suffered "physical, mental or emotional injury" as the result of the alleged negligent and abusive treatment. Third, the record contains no evidence from which it could be inferred that a foster child removed from Petitioners' home suffered a "discernible and substantial impairment in the ability to function within the normal range of performance and behavior" as a direct result of the alleged abusive discipline.15 The evidence of record supports a reasonable conclusion that Mrs. Sawyer was proactive in seeking the assistance of local politicians and state officials to accomplish her apparent goal of responsive and exceptional services from the Department for her foster children. It is undisputed that the Sawyers, with the advice and consent of the Department, had more foster children than was reasonable to expect only two adults to provide a minimal of custodial care. Permitting the Sawyers to house as many as 16 to 20 foster children, plus their two biological children, at any point in time, was permissive and self serving by the Department and was overreaching acceptance by the Sawyers. It is a reasonable inference that in this case both the Department and the Sawyers engaged in a mutual course of conduct to satisfy their respective needs and desires. When the mutually beneficial relationship came to a close, a reversal of opinions and recommendations from the Department regarding the Sawyers occurred. The Sawyers, who had been described by the Department as "unbelievable foster parents," became merely unbelievable when confronted with and evaluated by conflicting stories of 14 foster children removed from their home. Denial of Adoption Application for the M sibling group Turning to evidence in the record regarding the denial of Petitioners' application to adopt the four "M" siblings, the fact that some animosity existed between Ms. Gains16 and Mrs. Sawyer, became readily apparent during Ms. Gains' testimony. The existence of animosity was further confirmed by Ms. Gains' detailed chronology of alleged abusive acts and omissions by Mrs. Sawyer over a period in excess of one year. When answering questions asked by the Agency's representative regarding Ms. Gains' statements and opinion of Mrs. Sawyer, D.I. answered: "She [sic] said handcuffs and other things about Mrs. Cindy so as to get kids moved out of Mrs. Cindy's house to her house." Based upon D.I. testimony above, Ms. Gains' testimony given at the hearing and her written report in evidence is biased and unreliable. In the evaluation and review of Petitioners' adoption request, Respondent appropriately engaged in a holistic evaluation of all abuse reports filed, investigative reports, personal opinions, and comments from Department employees, community members and other foster parents, dating from as early as 1986 to the date of the adoption denial. Respondent, in reevaluation of Petitioners' adoption request for the "M" children, should hereinafter be guided by the Findings of Fact herein that allegations of excessive discipline as contained in the Administrative Compliant herein were not proven by the testimonies of the Agency's witnesses and documentary evidence. Therefore, allegations found in Abuse Report 2000-198255 reported or alleged to have occurred within the time period of December 21, 2000, through March 1, 2001, shall not be considered by the Agency in its reevaluation of the Sawyers' application to adopt the "M" siblings; being mindful that the "M" siblings' desire to be adopted by the Sawyers is in the "M" child(ren)'s best interest.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order granting renewal of Petitioners' Foster Care License. It is further RECOMMENDED, that in accord with the expressed desires of the "M" siblings to be adopted by Petitioners, that the Department enter a final order granting Petitioners' application to adopt the "M" siblings. DONE AND ENTERED this 13th day of November, 2002, in Tallahassee, Leon County, Florida. FRED L. BUCKINE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of November, 2002.
The Issue Whether Respondent's license to operate a foster home for dependent children should be suspended or revoked for lack of cooperation, and violation of the Petitioner's discipline policy, and licensing standards as outlined in the Administrative Complaint.
Findings Of Fact Respondent is an elderly woman who has operated a foster home since October 1989, at 7018 Ironwood Drive, Orlando, Orange County, Florida. Respondent applied for and was granted a foster home license in October, 1989. Foster home licenses are valid for one year and must be renewed annually. Respondent has annually renewed her license and presently holds license number 1093-11, issued October 18, 1993. In a licensing visit on April 6, 1990 Respondent admitted that she had been using some physical discipline with the children. She stated that she had been tapping the children's hands and had threatened one of the kids with a comb. Respondent was counselled by the Petitioner's licensing representative in regard to the agency's disciplinary guidelines. As a follow-up to the counseling session, a letter was sent to Respondent, dated April 6, 1990, by Licensing Representative Barbara Wavell, which advised Respondent that physically disciplining a foster child in her home was a violation of HRS policy. Respondent received the letter, and although she now believes that it contains misstatements of facts, she did not dispute its contents at the time. Respondent was made aware of the discipline policy of HRS on various occasions and during the required foster parent training, and agreed to abide by it. On April 10, 1992, Respondent expressed to Ms. Wavell that she believed "schools should be allowed to spank" and that "children need discipline and there is nothing wrong with appropriate spanking". In late 1993, Respondent hit at least one foster child who was placed in her home, because the child wet the bed. During 1993 and early 1994, Respondent allowed older foster children to discipline younger foster children with corporal punishment. On occasion, Respondent has restricted children from having access to their family members. Respondent has made derogatory remarks about some of the foster children's biological family members while in the presence of the foster children. Respondent had problems working with some of the children's caseworkers, most notably Jodi Peterson, on various occasions. Respondent expressed her concern that the caseworker visited her home too much, and she preferred that Ms. Peterson not have much contact with her foster children. Respondent felt that she should be included in the conversations between the children and their foster care counselors and would get upset that she was not included in these discussions. Respondent did not recognize the need for the children to have privacy and that it impinged on their right to have a proper relationship with their counselors. Respondent had on-going communications problems with the caseworkers. Respondent was specifically instructed concerning monetary allowances for the children, and the fact that the money given to Respondent was to be used for the children for clothing and incidentals. Respondent had difficulty accepting the fact that the children were entitled to monetary allowances to be used for clothing and incidentals. Respondent refused to allow the foster children placed in her home to participate in school activities, she refused to give them their allowance money to pay for school field trips. Respondent did not allow the foster children to have friends visit or to go places for fun. She encouraged them to stay home and watch television in their free time. Respondent on occasion made derogatory marks to some of the foster children placed in her home. Respondent did not show appropriate concern for the safety of a four- year-old foster child who was sharing a bedroom with two twelve-year-old foster children. Respondent was aware that they were hitting her, however, Respondent did not remove the child from that bedroom, although she had three empty bedrooms in the home. Although many visits have been made to the Respondent's home in an attempt to work with her to assist her in bringing the quality of care in her home up to an acceptable level, Respondent has failed to comply. On April 5, 1994, Petitioner's representative visited the Respondent to discuss the reasons that the Petitioner would be seeking a revocation of her license to operate a foster home.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby RECOMMENDED that a final order be entered revoking Respondent's license to operate a foster home. DONE and ENTERED this 18th day of May, 1995, in Tallahassee, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of May, 1995. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties. Proposed findings of fact submitted by Petitioner. Accepted in substance: paragraphs 1 (in part), 2, 4 (in part), 7 (in part), 8 (in part), 10 (in part), 11 (in part), 13 (in part), 14, 15, 16 (in part), 18, 20, 21, 22, 25, 26, 28 (in part), 29 (in part), 30 (in part), 31, 33, 34. Rejected as not supported by clear and convincing evidence: 1 (in part), 10 (in part), 19, 24. Rejected as subsumed, irrelevant or immaterial: paragraphs 3, 6 (in part), 7 (in part), 8 (in part), 9, 11 (in part), 12, 13 (in part), 16 (in part), 17, 23, 27, 28 (in part), 29 (in part), 30 (in part), 32. Rejected as a conclusion of law: paragraph 5 Proposed findings of fact submitted by Respondent. Respondent did not submit proposed findings of fact. COPIES FURNISHED: Laurie A. Lashomb, Esquire Department of Health and Rehabilitative Services District 7 Legal Office 400 W. Robinson Street, Suite S-827 Orlando, Florida 32801 Jane Carey, Esquire 905 W. Colonial Drive Orlando, Florida 32801 Robert L. Powell Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Bouelvard Tallahassee, Florida 32399-0700 Kim Tucker, Esquire Department of Health and Rehabilitative Services 1323 Winewood Bouelvard Tallahassee, Florida 32399-0700
The Issue Did Respondent violate Section 409.175(8)(b)1, Florida Statutes, or Rule 65C-13.011(d) and (f)1, Florida Administrative Code, and, if so, should Respondent's license as a foster home be revoked?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At times pertinent to this proceeding, Respondent was licensed as a foster home, having been issued such license on October 23, 1997. The Department is the agency of the state charged with the responsibility and duty to carry out and enforce the provisions of Chapter 409, Florida Statutes. Respondent received the Department's Model Approach to Partnership Parenting (MAPP) training to become a foster parent between September 1995 and December 1995. The Department provides MAPP training to teach persons how to become foster parents. The MAPP training that Respondent received included instructions concerning appropriate sleeping arrangements, namely that an adult should not sleep in the same bed with a foster child. Respondent agreed that the MAPP training was very useful and that he gained insight from that training on how to be a foster parent. Respondent received his foster care license on October 23, 1997, and the Department placed its first foster child with Respondent in January 1998. Foster child D.D., born October 23, 1985, was placed with Respondent by the Department January 20, 1998, and stayed with Respondent until March 12, 1998, when he was removed by the Department. Foster child E.T., born December 12, 1984, was placed with Respondent on January 12, 1998, and stayed with Respondent until January 21, 1998, when he was removed by the Department. E.T. was again placed by the Department with Respondent on January 23, 1998, and stayed with Respondent until March 12, 1998, when he was removed by the Department. Foster child R.M., born October 10, 1984, was placed with Respondent by the Department on March 2, 1998, and stayed with Respondent until March 9, 1998, when he was removed by the Department due to an alleged incident between R.M. and E.T. which occurred on March 9, 1998. The incident resulted in the Department's conducting an investigation concerning an alleged abuse on the foster child, E.T. by the foster child, R.M.. It appears from the record that the allegations were unfounded. In any event, R.M. was removed from Respondent's foster home on March 9, 1998, because his record indicated that in an earlier incident R.M. had sexually victimized another child (not E.T.). Also, because E.T. had been sexually victimized by another child (not R.M.) previous to being placed in Respondent's care the Department decided to remove E.T. from Respondent's home. It should be noted that the Department was aware of these prior incidents concerning R.M. and E.T. and the sleeping arrangements at Respondent's foster home at the time these foster children were placed with Respondent by the Department. Foster children, B.B. and C.L., dates of birth not in evidence, were placed with the Respondent by the Department on February 24, 1998, and stayed with Respondent until February 25, 1998, when they were removed by the Department. During the investigation concerning the alleged abuse incident involving R.M. and E.T. and at the hearing, Respondent admitted to sleeping in the same bed as E.T. and D.D. Respondent testified that on at least five occasions E.T. had slept in the same bed as Respondent. The facts surrounding this sleeping arrangement was that E.T. was suffering from an upper respiratory problem and would go to sleep on Respondent's bed before Respondent, who stayed up late reading, was ready for bed. As a result Respondent would sleep with E.T. to keep from waking him. There was no allegation, and certainly no evidence, that Respondent sexually or otherwise molested E.T. at any time. Respondent also admitted to sleeping in the same bed as D.D. on one occasion. Again, there was no allegation, and certainly no evidence, that Respondent sexually or otherwise molested D.D. At the time the Respondent applied for and was granted a foster home license and during the intervening time, the Department's personnel who worked with Respondent were well aware of the lack of sleeping spaces in Respondent's home. In fact, one of the Department's employees upon being advised of Respondent's sleeping arrangements commented that "it was better than sleeping on the floor at HRS." Upon being advised of the restriction on adults sleeping with foster children, the Respondent did not at first fully understand the risk of harm to the children. However, after being reminded of his MAPP training and the risk of harm to children in such a sleeping arrangement, Respondent realized his mistake in allowing such sleeping arrangements. Under Respondent's tutelage, E.T. and D.D. thrived academically and have continued to thrive since they left Respondent's home. The Department had some concern that Respondent's son was living in the home and that it had not been made aware of that circumstance. However, the Department knew, when Respondent's license was issued, that his son was living in the home.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law and the mitigating circumstances, it is recommended that the Department enter a final order suspending Respondent's foster home license for a period of one year, staying the suspension and imposing such reasonable conditions as the Department deems necessary to further educate Respondent as to his responsibilities as a foster parent. DONE AND ENTERED this 26th of July, 1999, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of July, 1999. COPIES FURNISHED: Jack E. Farley, Esquire Department of Children and Family Services 4720 Old Highway 37 Lakeland, Florida 33813-2030 Thomas D. Wilson, Esquire Law Office of Gregory Ruster 1525 South Florida Avenue Suite 3 Lakeland, Florida 33803 Gregory D. Venz. Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John S. Slye, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue to be resolved in this proceeding concerns whether the Respondent Marie Smith has committed an intentional or negligent act materially affecting the health or safety of children for whom she operated as a "medical foster care" parent or provider.
Findings Of Fact The Respondent, Marie Smith, was first licensed in 1992, as a foster care parent by the Department of Health and Rehabilitative Services, since re-named the Department of Children and Family Services. In 1996 she became a qualified medical foster parent, authorized to keep children with special medical problems. The Respondent received special training to become a medical foster parent from Children's Medical Services, a unit of the Department of Health, which oversees the progress of children placed in medical foster care. Some of the training the Respondent received concerned a child, T.B. It involved the use of the medication Flovent, which is used to treat asthma and other bronchial conditions. Flovent is dispensed in a small aerosol container and is administered by use of an inhaler. The training which the Respondent received includes the manner in which the person administering Flovent can ascertain when the container is empty and no longer usable. In connection with the Respondent's training as a medical foster parent, Ms. Smith was also instructed in the importance of giving all medications as prescribed and in how to document administration of medications. Through training and practice she learned to execute forms provided by Children's Medical Services (CMS) called treatment records and medication records, in which were logged each dose of medication given. Although not connected with her training as a foster parent, she also received ninety hours in classroom instruction which resulted in her being certified as a pharmacy technician by the State of Florida. On July 29, 1996, the child D.P. was born. D.P. and his twin brother were placed in Ms. Smith's foster home in October 1996. D.P. lived with Ms. Smith continuously until he was removed from the home in March 1999. In July 1998, D.P. was diagnosed as having bronchiolitis, a chronic inflammation of the bronchial passages of the lungs, later identified as asthma. In order to treat this condition he was prescribed Flovent. The purpose of the medication was to reduce the frequency of exacerbations or "asthma attacks." The medication was not designed to alleviate attacks already in progress, but to prevent future attacks. The medication is only effective if given as prescribed over an extended period of time. If Flovent is not administered as prescribed over a period of time the patient may suffer an increased incidence of asthma. The failure to take preventive steps can result in long-term damage to the lungs according to Dr. Bailey. Ms. Smith filled the first prescription for Flovent at Smith's Pharmacy on July 9, 1998. Only one container of Flovent was dispensed on that occasion. A container of Flovent contains an advertised one hundred and twenty (120) metered actuations or "puffs." The literature inserted into every package contains a warning to the user to use the number of actuations, one hundred and twenty, indicated on the box because the correct amount of medicine in each puff cannot be guaranteed after that point. D.P.'s prescription required him to receive two puffs per day, once in the morning and once in the evening. Since the label on the container itself stated that there were only one hundred and twenty puffs per canister, the first container was due to be replaced after sixty days of use at two puffs per day. Notwithstanding this fact, the prescription was not refilled until October 16, 1998, or ninety-eight days after the first container was obtained. Thus, for a period of thirty- eight days, D.P. either received no dose at all, or potentially received an inadequate dose of medicine. An actual test of a full canister of Flovent was conducted at the hearing. That revealed that one could get approximately one hundred and fifty- seven puffs from a canister before it is empty. However, the literature which comes with the medication makes it clear that a user cannot depend on the adequacy of the dosage after one hundred and twenty puffs. Thus, even if Ms. Smith could have dispensed one hundred and sixty puffs from a canister, and if she maintained that she was administering two puffs per day, she would have run out of the medication after no more than eighty days. Ninety-eight days elapsed however, between the filling of the prescription and the first refill which was obtained in October 1998. Even under Ms. Smith's description of the dosing and administering of the medication, D.P. either had to have gone without his medication for some days or was receiving a less-than-standard amount in order for the medication to last as long as she maintained it did (i.e., possibly one puff per day). Ms. Smith maintained that she actually obtained two packages of Flovent from the pharmacy rather than one on October 16, 1998. The pharmacy records, however, show only one container being dispensed both in July and in October. Those records were made contemporaneously with the receipt and filling of the prescription. The pharmacist and pharmacy technician each double-check the work of the other. Thus if Ms. Smith had obtained double the amount of medication, both the pharmacist and the pharmacy technician would have had to make the same error at the same time, which is improbable. Moreover, there is no label on the extra box taped to the box dispensed on October 16, 1998. It is not the practice of the Smith Pharmacy to tape such boxes together or to label only one box. In any event, on October 16, 1998, Ms. Smith got the prescription refilled. On that day she picked up one container of Flovent. The prescription had not changed at that point so D.P. was still supposed to receive two puffs per day, so the container should have been replaced after sixty days. In view of the fact that Ms. Smith was keeping T.B., another child at the same time she provided foster care for D.P., and since T.B. also had a prescription for Flovent, it has not been established that Ms. Smith could have only gotten an extra Flovent box from the pharmacy, with the boxes containing the two canisters taped together and dispensed together on October 16, 1998. She could have simply used T.B.'s prescription box. The prescription obtained on October 16, 1998, was not re-filled again until March 10, 1999. A period of one hundred and forty-five days had thus passed before a new container was obtained. The test performed at hearing showed that as much as one hundred and fifty-six to one hundred and sixty puffs are contained in such a canister and therefore the medication might have lasted the one hundred and forty-five days. However, if the manufacturer's warning or instruction on the literature supplied with the canister is to be believed, after one hundred and twenty puffs had been dispensed (a sixty-day supply) then less medication might be dispensed with each puff thereafter. Since one hundred and forty-five days elapsed before a new prescription and container of medicine was obtained, D.P. may have failed to received one hundred and seventy doses of medicine over a period of five months. This could clearly have resulted in a worsening of D.P.'s condition. Moreover, Ms. Smith incorrectly documented the administration of the Flovent as though she were in fact giving the medication twice per day as prescribed. See Petitioner's Exhibit No. 2 in evidence. The testimony of the witnesses employed with the CMS who oversee the care for children in medical foster care uniformly found that the Respondent provided good care and they never saw any evidence that medical care for the child D.P. was neglected. In fact, Dr. Samir Ebbeid, a pediatric cardiologist who treated the child from October 1996 through April of 1999, found that the Respondent uniformly complied with his instructions about care for the child and thought that the care of the child by the Respondent between the visits to his office was appropriate. In fact he found that the child improved while under the Respondent's care and that there was no reason to believe that the child's medical care under the care of Ms. Smith, the Respondent, was ever neglected. The child's asthmatic condition actually improved during the time he was under the Respondent's medical foster care.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That a final order be entered by the Department of Children and Family Services suspending the foster care license of Marie Smith for a period of ninety days, during which time she should undertake an approved course of instruction concerning the proper administration and record-keeping of administration of prescription drugs for children in her care. DONE AND ENTERED this 15th day of March, 2000, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of March, 2000. COPIES FURNISHED: John R. Perry, Esquire Department of Children and Family Services Room 252-A 2639 North Monroe Street Tallahassee, Florida 32399-2949 Richard D. Ogburn, Esquire Post Office Box 923 Panama City, Florida 32402 Samuel C. Chavers, Acting Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John S. Slye, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
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 is whether Respondent should deny Petitioners' application to be licensed as foster parents.
Findings Of Fact Respondent is the state agency responsible for licensing and regulating foster parents in the state. Respondent first licensed Petitioners as foster parents on June 29, 2003, and renewed the license on June 29, 2004. The last license expired on June 28, 2005. Petitioners allowed their license to expire on June 28, 2005. They wanted to make improvements to a new home they had moved into before bringing foster children into the home. Petitioners submitted a completed application for a new license on March 20, 2006. By letter dated April 27, 2006, Respondent denied the application for licensure. Petitioners did not receive the notice of denial until May 3, 2006, because Respondent sent the notice to the address of record in the old license application files instead of the correct address in the application for a new license that is at issue in this proceeding. The letter denying the application for licensure incorrectly stated that Respondent intended to revoke Petitioners' license. The misstated literal terms of the letter nevertheless provided Petitioners with adequate notice of the actual proposed agency action to deny the license application. Contrary to the literal terms of the letter, Petitioners understood that the letter constituted notice of Respondent's proposed denial of their license application. Petitioners timely requested an administrative hearing by letter dated May 7, 2006. The request for hearing stated, in relevant part: [W]e received notice advising us that [Respondent] has initiated proceedings to revoke our foster home license. . . . Please note that we are not a licensed foster home at this time. Our license expired in June, 2005. So, we are somewhat confused about proceedings to revoke something that does not exist. Please be advised that we did [sic] however, complete an application for a 'new' foster care license. . . . We were also told that, [sic] our application would be denied and that we would have the right to request an administrative hearing to contest the 'denial'. If the letter that we received is in regard to our application for licensure, and if that application has been denied, then we are requesting an administrative hearing to contest that decision. Respondent's Exhibit 1C. Respondent gave the request for hearing to the agency clerk to forward to DOAH to conduct the hearing. However, the agency clerk was confused by the literal terms of the denial letter. When the agency clerk could not ascertain an existing foster home license to revoke, the agency clerk merely "sat" on the request for hearing and did not forward it to DOAH. By letter dated November 13, 2006, Respondent corrected the literal terms of the previous letter. The letter dated November 13, 2006, correctly notified Petitioners of Respondent's proposed denial of the license application. By letter dated November 23, 2006, Petitioners again requested an administrative hearing to contest the proposed denial of the license application. In addition, the request for hearing notified Respondent of Petitioners' intent to rely on the so-called default license provisions in Subsection 120.60(1), Florida Statutes (2006).1 Respondent gave the request for hearing to the agency clerk. This time, the agency clerk referred the matter to DOAH. However, the agency clerk did not refer the request for hearing to DOAH within the 15 days mandated in Subsection 120.569(2)(a). Rather, DOAH received the referral from the agency clerk on March 6, 2007; approximately 103 days after the date of the second request for hearing and approximately 303 days after the date of the first request for hearing. The delays in referring the requests for hearing to DOAH did not impair either the fairness of the proceeding or the correctness of the agency action. It is undisputed that when Petitioners were previously licensed as foster parents they repeatedly administered corporal punishment to a foster child who was approximately four years old at the time. It is also undisputed that Petitioners punished the child by requiring the child to stand for one hour to one hour and a-half almost daily. Both types of discipline violate applicable standards for foster care and evidence Petitioners disqualification to be foster parents. The parties spent most of the evidentiary hearing on the issue of whether the four-year-old female suffered from a condition identified in the record as reactive attachment disorder (RAD). However, the trier of fact finds evidence concerning RAD to be irrelevant and immaterial to the issue of whether Petitioners are qualified to be foster parents. The evidence that Petitioners administered unauthorized discipline to a four-year-old foster child in their care clearly evidences their lack of qualification. No medical evidence established a nexus between the alleged disorder and illicit discipline of a young child.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that Respondent issue a final order denying Petitioners' application to be licensed as foster parents. DONE AND ENTERED this 22nd day of May, 2007, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of May, 2007.
The Issue The issue is whether Respondent is guilty of acts and omissions to justify the revocation of his license to operate a family foster home, pursuant to Section 409.175(8), Florida Statutes.
Findings Of Fact Petitioner licensed Respondent to operate a family foster home from June 22, 2000, until May 15, 2001, at which time Petitioner revoked Respondent's license. The only foster children placed with Petitioner were Ju. K. (Ju.) and J. K. (J.), who are brothers. During the majority of the period in question, Ju. was 16 years old and J. was 17 years old. The boys were adopted at infancy. However, their adoptive mother died when they were young. The adoptive father remarried, but died a few years later, in January 1999. The stepmother never adopted the children, and, shortly after the death of their adoptive father, she turned over the two children to foster care. Respondent had been a friend of the stepmother since the mid-1980s and, through her, had met the adoptive father. Respondent became close with the couple and their children, whom he often visited on holidays. Learning that at least one of the boys had had problems in foster care, Respondent decided to qualify to become their foster father. At the time, Respondent was 40 years old and single and had not raised any other children. However, Respondent took the training courses required for licensing as a foster parent. After Respondent obtained his foster parent license, Project Teamwork for Kids, which is the private entity in Brevard County that recruits, trains, and licenses foster parents and places foster children with these parents, placed Ju. and J. with Respondent. J. began to live with Respondent in January 2000, and Ju. joined him in June 2000. During the summer of 2000, relations among Respondent, J., and Ju. were good. They took vacations and settled into their new lives during a period relatively free of stressful demands. Respondent asked Project Teamwork 4 Kids representatives not to start any family therapy during the summer and, once school started, asked that they again defer the initiation of such services. Respondent was aware that Ju. had been diagnosed with dissociative personality disorder, but believed that a normal home life would ameliorate this condition. During the summer, Respondent was concerned with the high school to which Ju. had been assigned for ninth grade. Respondent convinced school officials to reassign Ju. to a different high school, but school officials warned Respondent that, due to the reassignment, they would not tolerate disruptive behavior from Ju. Respondent was satisfied with J.'s assignment for tenth grade because it was the same school from which he had earlier dropped out. At the start of the school year, Respondent required weekly progress reports from J.'s teachers. However, as J.'s grades improved, Respondent dropped this requirement. During the period covered by this case, Respondent's relationship with J. was better than Respondent's relationship with Ju. Respondent and J. had a major disagreement arise at the end of October when J. returned home drunk from a homecoming celebration. A day or two later, after giving the matter considerable thought, Respondent discussed the matter with J. and imposed the punishment that Respondent would not provide his written consent for J. to obtain his driving learner's permit for six months, although Respondent would reconsider at three months. When J. learned of his punishment, he became irate and telephoned his case manager with Project Teamwork 4 Kids, Karen McCalla. He demanded that she remove him from Respondent's home. Ms. McCalla visited the home and spoke with J. alone for several hours, then Respondent, and then J. again alone. This home visit provides an early, but typical, example of the difference in perspectives of Respondent and Petitioner's witnesses. According to Respondent, Ms. McCalla arrived at the home, spoke with J. alone for several hours, spoke with Respondent, and then spoke with J. alone again. She then announced that Respondent should sign for J.'s learner's permit, but not allow him to drive for three months. Although he disagreed with the recommendation and felt that Ms. McCalla's recommendation had undercut his authority, Respondent complied with the request. Ms. McCalla's version is considerably different. Agreeing that J. was demanding that she remove him from Respondent's home, Ms. McCalla noted that J. complained generally that Respondent was "overbearing, overpowering and does not give [J.] any privacy." Focusing on the larger issues than merely the proper punishment for J.'s recent misbehavior, Ms. McCalla recommended that the family undergo family therapy. Ms. McCalla's version is credited. By Respondent's own account, Ms. McCalla spent "several hours" speaking with J. initially. Although underage drinking is a serious matter that may necessitate serious discussions, it is unlikely that Ms. McCalla and J. could have spent "several hours" on this single transgression. It is more likely that J. broadened his complaints in the manner described by Ms. McCalla. Respondent's contrary version either undermines his credibility as a witness or, if sincere, his competence as a foster parent. During the fall, Respondent's relationship with Ju. deteriorated. In general, Respondent's nascent parental skills were insufficient to meet the needs of Ju. When a conventional menu of incentives and disincentives failed to produce the desired results, Respondent grew increasingly frustrated, but declined to take advantage of the support resources available to him through Project Teamwork 4 Kids and its contractors. Instead, Respondent, alone, proceeded with his own disciplinary scheme, intensifying his disciplinary measures each time that less intense measures failed. Eventually, conflict between Respondent and Ju. escalated, and the domestic situation became unbearable for both of them. For instance, at school, Respondent was legitimately concerned that Ju. not jeopardize his placement at the high school to which he had been assigned due to Respondent's efforts. Worried about Ju.'s associations at school, especially due to Ju.'s poor school associations in the past, Respondent required Ju. to sign into the library immediately after eating lunch, so he would not have the chance to socialize with his peers. If Ju. failed to sign in, a teacher was to telephone Respondent, who would go to school to find Ju. By Respondent's admission, he enforced this arrangement for four to six weeks. Respondent was adamant that Ju. not date until he was 16 years old. This was a legitimate concern due to sexual behaviors that Ju. had displayed prior to his arrival in Respondent's home. Early in the school year, while Ju. was still 15 years old, Respondent overheard him speaking on the telephone with a girl from school. Respondent interrupted the conversation and asked Ju. to ask the girl if her mother were home. Finding that she was, Respondent asked to speak to the mother. Explaining to the mother that Ju. was not allowed to go on one-on-one dates until he reached 16 years of age, Respondent, by his own testimony, managed to agitate and offend the mother. Respondent admitted that Ju. became upset because he had considered the girl his girlfriend. On another occasion, Respondent required that Ju. end a relationship with a girl at school. Without detailing any concerns about sexual activity, Respondent explained his intervention by noting that Ju. had taken another boy's girlfriend, who seems to have not been suitable for Ju.--in Respondent's opinion. At home, numerous times Respondent employed more intense strategies when conventional disciplinary interventions failed to produce the desired results. For instance, when Ju. persisted in viewing sexually unsuitable material on the television in his room, Respondent removed the bedroom door, thus depriving Ju. of all privacy. Also, when Ju. persisted in abusing and overusing the telephone, even after being placed on telephone restriction, Respondent removed the handsets when he left the home, leaving the boy without telephone service in the home, although he could walk outside the apartment to a neighbor or a pay phone. Gradually, frustration erupted into physical confrontations. Twice, Respondent ripped T-shirts off the back of the boy during angry exchanges. Once, Respondent lightly slapped the boy on the mouth when he swore at Respondent. Twice, Respondent intentionally damaged audio equipment used by Ju. For each of these actions, Respondent devised transparent stories to cover up his failure to handle Ju.'s transgressions in a positive, effective manner. As the above incidents suggest, Respondent sought to impose a level of control over Ju. that was unsuitable for Ju.'s age and the circumstances of the relationship that existed between Respondent and Ju. Lacking both experience and maturity, Respondent obstinately dug in deeper each time his discipline failed to produce the desired result. Never lacking in good motives, Respondent lacked the resources needed for the difficult parenting task that Ju. presented, and Respondent exacerbated the situation by refusing to accept the assistance of professionals who might have been able to help him with Ju. Over time, even Respondent's innocuous behavior- modification techniques became counterproductive. For instance, Respondent routinely insisted that he and a child not go to sleep without first resolving any conflicts that may have arisen. Although a salutary policy, if applied with discretion, Respondent's overbearing implementation of this policy intensified hostilities, rather than defused them. An example of the injudicious use of this policy took place in early February 2001 when Respondent and Ju. got into an argument over an uncompleted homework assignment. Respondent warned Ju. that Petitioner lacked sufficient beds to accommodate Ju. at the time and that, if Ju. did not compose himself, Respondent would call the police to have Ju. removed from Respondent's home. This was especially hurtful to a child who had already known the pain of abandonment and abuse. Trying to defuse the confrontation, Ju. demanded time to step outside and cool off, but Respondent, insistent on a resolution on his terms, ordered Ju. to remain inside until Respondent had finished talking to him. By March 2001, Project Teamwork 4 Kids representatives had tried to intervene on at least two occasions in recent weeks, but Respondent had become increasingly resistant to what he viewed as interference from caseworkers with Ju. and J. By this time, Ju. wanted out of the home, and Respondent wanted him out of the home. On March 28, 2001, Project Teamwork 4 Kids removed Ju. from Respondent's home. About six weeks later, Project Teamwork 4 Kids also removed J. from Respondent's home. Petitioner proved some of its specific allegations and failed to prove others, but, as the Administrative Law Judge noted at the final hearing, the basic issue in this case is whether Petitioner can prove that Respondent has committed an intentional or negligent act materially affected the health or safety of children in his home. Petitioner has met its burden with respect to Ju. Ju. would have been a considerable challenge to a person with considerable parenting experience and skills. Respondent lacked both, but, knowing Ju.'s special needs, nonetheless sought the responsibility of serving as Ju.'s foster father. As the situation worsened, Respondent lacked the insight to avail himself of the resources offered to him and Ju. Instead, Respondent resorted to ineffective disciplinary strategies that eventually deteriorated into angry outbursts, culminating in Respondent's angry and desperate threat to end the placement itself--a most injurious act, given Ju.'s circumstances and dissociative personality disorder. Although it is clear that Respondent assumed a very difficult undertaking, his incompetent discharge of these responsibilities, coupled with his obstinate refusal to accept readily available help from others with greater training and experience, justifies the revocation of his family foster home license.
Recommendation It is RECOMMENDED that the Department of Children and Family Services enter a final order revoking Respondent's family foster home license. DONE AND ENTERED this 22nd day of January, 2002, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of January, 2002. COPIES FURNISHED: Kathleen A. Kearney, Secretary Department of Children and Family Services 1317 Winewood Boulevard Building 1, Room 202 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 Peggy Sanford, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Deborah Guller Department of Children and Family Services 201 West Broward Boulevard, Suite 502 Fort Lauderdale, Florida 33301 Samuel D. Lopez Samuel D. Lopez, P.A. 629 Southeast Fifth Avenue Fort Lauderdale, Florida 33301 Alan Siegel 500 Northwest 34th Street, Apartment #105 Pompano Beach, Florida 33064
