Findings Of Fact Based on my observation of the witnesses, their demeanor while testifying and the entire record complied herein, the following relevant facts are found. Respondents, Robert and Melody Chinnici, completed their foster care parent training program during September 16, 1991 (MAPP), and were thereafter licensed as foster care parents in October 1991. The MAPP training included Petitioner's discipline policy which is in the form of a written statement that was given to and acknowledged by Respondents. During times material, Respondents were entrusted to care for foster children Tonya Wilson, a 13-year-old, who resided with Respondents from approximately October 1991 through May 1992, and Jonathan, who was approximately 10 years of age. During this time frame, Respondents' natural son, Christopher Chinnici, also resided with them. During times material, Respondents used a form of "time out" to discipline the foster children when they were disruptive in church. The time out procedure utilized was one whereby the disruptive child would stand and face the wall for periods of five to fifteen minutes. When "time out" was imposed, the church services were over and most of the parishoners had left the parish. On at least one occasion, Respondent, Melody Chinnici, discussed with a foster parent a means of circumventing Petitioner's disciplinary policy respecting the pulling of foster children's hair. There was no evidence that Respondents in fact circumvented HRS' policy. Respondents attempted to serve meals to their foster children in an orderly fashion. During the course of serving meals, there was no evidence that Respondents withheld or otherwise utilized food as a means to discipline foster children in their care. Likewise, Respondent Melody Chinnici did not administer corporal punishment to foster children in her bedroom out of the view of other children.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: Petitioner enter a final order rescinding its proposed revocation of Respondents' foster care license and issue said licence forthwith assuming Respondents comply with other relevant criteria for the reissuance of their foster care license. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 26th day of July 1993. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of July, 1993. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 92-6751 Ruling on Petitioner's proposed recommended order. Paragraph 3, adopted as modified, paragraph 4, recommended order. Paragraph 4, rejected, contrary to the greater weight of evidence, paragraph 5, recommended order. Paragraph 5, adopted as modified, paragraph 4, recommended order. Paragraphs 6 and 7 rejected, contrary to the greater weight of evidence, paragraphs 6 & 7, recommended order. COPIES FURNISHED: Raymond R. Deckert, Esquire Department of Health and Rehabilitative Services District Six Legal Office W. T. Edwards Facility 4000 West Dr. Martin Luther King Jr., Blvd. Tampa, Florida 33614 Robert and Melody Chinnici, pro se 5244 De Milley Road Polk City, Florida 33868 Robert Powell, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Slye, Esquire General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue May the Department of Children and Family Services (DCF) revoke Respondent's foster home license for violating Section 409.175 (8)(b) 1., Florida Statutes, in that Respondent intentionally or negligently committed acts that materially affected the health and safety of children, to-wit: inadequate supervision of a minor child entrusted to her care?
Findings Of Fact R.G. is the biological mother of the infant female, A.G., born out of wedlock. R.G. gave birth to a male child before A.G. That son was taken away from R.G. by DCF. Both A.G. and R.G., while R.G. was yet a minor under the age of 18 years, were adjudicated dependent children, subject to placement by DCF, pending DNA testing of A.G. and two putative fathers. R.G. had been placed with a licensed foster home other than Respondent's licensed foster home. That home requested R.G.'s removal because R.G. would not follow its rules. R.G. with A.G., was then placed in the licensed foster care home of Respondent. Although the placement of A.G. with Respondent raised Respondent's home population to one more live foster child than Respondent's licensed capacity, a situation to which Respondent objected, DCF personnel informed Respondent that the infant A.G. would be counted as part of R.G.'s placement. Therefore, despite A.G. and R.G. being two separate persons, DCF would not consider Respondent to have exceeded her license's capacity. It was not explained on the record how DCF intended to pay board to Respondent for care of A.G., if A.G. were not considered a whole person, but it is clear that DCF personnel resented Respondent's asking how she would be compensated for A.G.'s care. At all times material, R.G. and A.G. were subject to a Circuit Court Order which permitted only "unsupervised day visitation" by R.G. with A.G. (Emphasis in the original). By implication of the Circuit Court Order, and by her own understanding from instructions by DCF personnel, Respondent knew that R.G., the minor mother, was not permitted to have unsupervised night visitation with the dependent infant, A.G. DCF's and Respondent's understanding of the Circuit Court Order was that Respondent, R.G., and A.G. were required to be in Respondent's home after dark, but Respondent was not required to "eyeball" R.G. and A.G. all night, every night, while they were present in Respondent's foster home. Gracie Rager, DCF foster care worker, authorized Respondent to allow R.G. to take A.G. out of Respondent's foster home during the day for unsupervised visitation. Ms. Rager also authorized Respondent to allow R.G. to take A.G. to R.G.'s older natural sister's home to spend some nights, including weekends. R.G.'s older natural sister was married and licensed for foster care. Accordingly, DCF personnel, including Ms. Rager, presumed that the older sister was sufficiently responsible and qualified to provide supervision of R.G. and A.G. at night. DCF reasonably concluded that R.G.'s presence with A.G. in her sister's home at night would constitute supervised night visitation and comply with the Court's Order. Ms. Rager never authorized Respondent to allow R.G. to take A.G. out at night by herself, but Ms. Rager reasonably saw no impediment, including the Circuit Court Order, to R.G. taking A.G. with her anywhere she wanted to take the baby during the day. R.G. openly resented being placed with Respondent because Respondent is Black. R.G. wanted to return, with A.G., to a white foster home placement. As a result, R.G. was never cooperative with Respondent. When R.G. turned 18 years of age, she became openly defiant of Respondent. R.G. insisted that she alone, would do everything for A.G., who was still under two years old. R.G. refused all assistance from Respondent concerning A.G. Respondent asked DCF to remove R.G. and A.G. or at least A.G., from her foster home. DCF had no other placement for them and asked Respondent to keep them until another placement was found. R.G. had a part-time day job. To get there, she would "catch a ride" with others. She would not accept a ride from Respondent. Sometimes, R.G. would take A.G. with her to work and go directly from work, with A.G., to her older, licensed sister's home. On these occasions, R.G. and A.G. might be gone for a night or a weekend. When R.G. did not return to Respondent's foster home, Respondent sometimes called R.G.'s older, licensed sister's home to be sure that R.G. and A.G. had arrived there safely. Sometimes, Respondent asked this sister to call her when R.G. and A.G. arrived. However, Respondent did not always contact R.G.'s older, licensed sister or otherwise check-up on R.G.'s and A.G.'s whereabouts overnight or over a weekend. When R.G. and A.G. returned after a night or weekend away, Respondent did not always check up on where they had been. Respondent was under the impression that a different, adult sister of R.G.'s was also a suitable adult supervisor for after dark, even though that sister was not licensed for foster care. Indeed, there is nothing in the Circuit Court Order requiring that supervised night-time visitation of R.G. with A.G. could not be undertaken by any other adult, regardless of whether that person were licensed for foster care. Respondent never checked to see if R.G. and A.G. were with R.G.'s unlicensed sister. At no time did Respondent report to law enforcement or DCF that R.G. had gone off and failed to return or that R.G. was taking A.G. away on weekends. At some point, R.G.'s authorized and licensed older sister called Ms. Rager and said R.G. had taken A.G. out all night with R.G.'s boyfriend and had not returned. It is unclear from Ms. Rager's testimony whether R.G.'s and A.G.'s departure point for their night or weekend of unsupervised visitation was Respondent's home or R.G.'s licensed sister's home. On February 9, 2001, Ms. Page, a DCF protective investigator, responded to an abuse hotline call and met with Respondent in the lobby of a DCF facility. During her interview of Respondent, Ms. Page knew nothing of where either R.G. or A.G. had been picked up, or how long they had been unsupervised at night, but Ms. Page "understood" from Ms. Rager that R.G. and A.G. had been removed from Respondent's home and that Respondent had come to the DCF facility voluntarily. Ms. Page was particularly concerned because of a comment Respondent made in the course of this interview, to the effect that Respondent guessed she had "handled it all wrong" because she had only asked to have the baby, A.G., removed from her care instead of reporting R.G.'s rebelliousness. DCF Investigator Page testified that she "verified" in an abuse report that Respondent was guilty of neglect by failure to notify authorities of R.G.'s unsupervised night visitation with A.G. There is insufficient evidence to determine of Respondent ever had a chance to challenge the abuse report or if the report was ever "confirmed." There is no evidence R.G. or A.G. suffered harm as a result of this incident.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Department of Children and Family Services enter a final order dismissing charges against Respondent and restoring her foster care license. DONE AND ENTERED this 7th day of October, 2001, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of October, 2001. COPIES FURNISHED: David West, Esquire Department of Children and Family Services Post Office Box 390, Mail Stop 3 Gainesville, Florida 32602 Dr. James Brant, Qualified Representative 1140 Durkee Drive, North Jacksonville, Florida 32209 Cheryl Smith Post Office Box 1053 Lake City, Florida 32056 Virginia A. Daire, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
The Issue The 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 Are the Respondents entitled to renew their license to operate a family foster home?
Findings Of Fact Respondents held Family Foster Home License No. 059520, effective from May 18, 1995 through May 18, 1996. The license was not renewed based upon allegations in this case. At times relevant, Respondents provided foster care to F.J., who was thirteen when the hearing was conducted, to V.K. who was eight when the hearing was conducted, and to F.J. and V.K.'s two younger brothers. The children lived with the Respondents for approximately six and one-half years. Although F.J. is thirteen years old, she is a developmentally disabled child with an I.Q. in the range of 46 to 58. Her mental and developmental age is less than eleven years. On May 30, 1995 an investigation was begun concerning alleged sexual abuse of F.J. by James Comer. This led to the removal of the children from Respondents' home. On May 30, 1995 F.J. described James Comer's sexual misconduct to Brenda Mims, a human services counsellor for Petitioner. At that time F.J. told Mims that James Comer had touched her breast and felt on her. When F.J. described the contact which James Comer had with her, F.J. put her hands on her breast to demonstrate. She did not describe the point in time when this happened. On that date Mims interviewed Mary Comer concerning the allegations by F.J.. Mary Comer confirmed that F.J. had told Mary Comer that James Comer was "bothering her" and F.J. wanted it to stop. Mary Comer indicated that she thought that F.J. was referring to a "tickling incident". Mary Comer told Mims that she had confronted James Comer about the tickling and asked him to stop tickling F.J.. When Mary Comer spoke to Mims, she referred to F.J. coming to her and saying that "Dada" was bothering F.J.. The term "Dada" is the name the children used to refer to James Comer. The children referred to Mary Comer as "Granny". On June 7, 1995 Mims talked to F.J. again. At that time F.J. was concerned that James Comer not be able to find her in her new home. Assurances were given that James Comer could not find her. On this occasion F.J. told Mims that James Comer "would feel on her" and she didn't like it. In this conversation F.J. described fondling James Comer's penis. F.J. stated that James Comer would hit her with his fist sometimes if F.J. wouldn't cooperate with his advances. F.J. described a big roll of money that James Comer would give her if F.J. would cooperate with him. Otherwise James Comer would not give F.J. money. According to Mims, F.J. said that James Comer would give her money if F.J. would "be with him". In the June 7, 1995 discussion F.J. and V.K. told Mims that Mary Comer tried to prohibit James Comer from bothering F.J. and James Comer began to beat Mary Comer. Following such incident, the police were called, but James Comer was not removed from the home. In the June 7, 1995 conversation V.K. told Mims that on one occasion V.K. peeked out the door and saw F.J. lying on James Comer while he was seated in the reclining chair. Deborah Gipple is a licensed mental health counselor who has experience in counseling child victims of sexual abuse or other trauma. Gipple began counseling F.J. in November, 1995 and continued the counseling to the date of hearing. Gipple observed in F.J. conduct which is consistent with a child who has been sexually abused. This included F.J. exposing herself, rubbing against other children, problems in the classroom and at home concerning the need to follow directions, and a distrust evidenced by sneaking about doing things that were not necessary to avoid detection, such as sneaking about and removing food. F.J. told Gipple that James Comer touched between F.J.'s legs and touched her breast. F.J. further stated that James Comer had her lay on top of him. F.J. told Gipple that sometimes James Comer would come in the night and take F.J. from her bed. In these conversations Gipple observed that F.J. was aware that James Comer's actions were wrong. In these discussions F.J. stated a concern about her sister V.K. and the possibility that James Comer would harm V.K.. V.K. was competent to testify when she testified at hearing. On one occasion when V.K. was in the hallway with her brothers at night she looked in the T.V. room and saw F.J. on top of James Comer while he was seated in a reclining chair. V.K. described that F.J. was moving her body and doing "nasty stuff". On another occasion V.K. was outside the house and observed F.J. and James Comer in the T.V. room. As V.K. describes it, F.J. was playing with James Comer while he was sitting down. F.J. was on James Comer's lap. V.K. did not give exact details concerning what F.J. and James Comer were doing. Concerning these two instances, V.K. recalls that Mary Comer was not home on the first occasion. V.K. has no recollection concerning Mary Comer's whereabouts on the second occasion. V.K. had been subjected to corporal punishment by James Comer when living in his home. She also observed James Comer administer corporal punishment to her two brothers. In the June 3, 1996 video that was made to record F.J.'s remarks concerning James Comer, together with statements she made to others, F.J. demonstrates sufficient appreciation of the meaning of the duty and responsibility to tell the truth to warrant a finding that she was competent for that purpose. In the video she describes that James Comer made her touch his "private parts". She did not describe the period of time over which the sexual contacts were made between James Comer and F.J. She did recount how these events had occurred on a number of occasions. On one occasion her clothes were off when James Comer touched her. In the video tape F.J. describes that James Comer had touched her breast and genital area by pointing to those areas on her body. F.J. identified that the occasions when she was inappropriately touched occurred when Mary Comer was not at home. In the video F.J. refers to the fact that she told Mary Comer about being touched by James Comer, but that Mary Comer did not believe her. By October 1995 F.J., V.K. and their brothers had been placed in the foster home of Roberta Graham where they presently reside. While living with Graham, F.J. told Graham that "Dada", referring to James Comer, was touching F.J. in wrong places, that he touched her on her breasts, and that he took her hand and massaged his "private part", referring to his penis. F.J. told Graham that this happened when Mary Comer went out to get drinks. F.J. told Graham that the other children were outside playing and the door was locked and James Comer and F.J. were inside when events occurred. F.J. mentioned to Graham that an incident happened at night when everyone was in bed and "Dada" called F.J. out alone and then the other children, her brothers and V.K. came out of the room. This is the night time incident V.K. testified about. This incident at night occurred when Mary Comer was not at home. F.J. told Graham that on one occasion James Comer removed F.J.'s clothes when she came out of the bathroom after blocking the door to prohibit F.J.'s exit. F.J. expressed concern to Graham that "Dada" was going to turn from doing things to F.J. to doing things to V.K.. F.J. told Graham that she had reported James Comer's actions to Mary Comer in saying that she told "Granny". F.J. stated to Graham that when F. J. told Mary Comer, she, (Mary Comer) said, "If you tell anyone, you will have to leave". F.J. made the remarks about James Comer's inappropriate conduct approximately thirty times to Graham and was consistent about the facts reported. The remarks by F.J. on the video tape and to Mims, Gipple and Graham which have been recited concerning James Comer are credited as true. Following the accusations about James Comer's sexual misconduct directed to F.J., Petitioner through its employees, Esther Tibbs and Judy Parks, met the Respondents on February 5, 1996 to advise Respondents that Petitioner intended to revoke the foster care license. The grounds for seeking revocation were related to the sexual misconduct by James Comer and the use of corporal punishment in disciplining the foster children. In the past, commencing 1988, Petitioner had received complaints concerning the use of corporal punishment by Respondents in disciplining their foster care children. Petitioner through its employees had counseled Respondents about the inappropriateness of corporal punishment. In one instance correspondence was sent to the Respondents on this subject reminding the Respondents that it was inappropriate to use corporal punishment even to the extent of an "occasional slap on the backside. . .under any circumstances". This reminder was sent through correspondence dated March 25, 1993. In 1988, unrelated to the foster children who have been referred to in these facts, Pamela Davis, Guardian Ad Litem for A.L. spoke to James Comer concerning his administration of corporal punishment to that child. James Comer told Davis that he had beaten the child "to beat the devil out of her" and it hadn't worked. He further stated that Davis could take the child from his home. Davis did remove the child from foster care provided by Respondents. On February 12, 1996 Respondents requested a formal administrative hearing to contest the grounds for revoking their foster home license.
Recommendation Based on the facts found and the conclusions of law reached, it is, RECOMMENDED: that a Final Order be entered which denies the renewal of the Family Foster Home License for Respondents. DONE and ENTERED this 5th day of July, 1996, in Tallahassee, Florida. CHARLES C. ADAMS, 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 5th day of July, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 96-0943 The following discussion is given concerning proposed facts by the Petitioner: Paragraphs 1-5 are subordinate to facts found. Paragraph 6 is not necessary to the resolution of the dispute. Paragraphs 7 & 8 are subordinate to facts found with the exception that the fourth sentence is not supported by competent evidence in the record, nor are paragraphs 9 and 10. Paragraph 11 is subordinate to facts found. Paragraph 12 in the first sentence is subordinate to facts found. The last sentence to paragraph 12 and paragraph 13 are not necessary to the resolution of the dispute. Paragraph 14 is discussed in the evidentiary ruling under Section 90.803(23), Florida Statutes. Paragraph 15 is subordinate to facts found with exception that the next to last sentence in the reference that on the second occasion "Granny" had gone somewhere is not supported by competent evidence in the record. Paragraphs 16-18 are subordinate to facts found. Paragraph 19 is not supported by competent evidence in the record. Paragraphs 20 and 21 are subordinate to facts found with the exception that the reference to "they" in paragraph 21 should be "she". The first and the third sentence to paragraph 22 are not supported by the record. The second sentence is subordinate to facts found. Paragraph 23 is not supported by the record. Paragraphs 24 and 25 with the exception of the last phrase to paragraph 25 are subordinate to facts found. The last phrase to paragraph 25 is not supported by the record. Paragraph 26 is subordinate to facts found with the exception of the reference to October 10, 1988, which is not supported by competent evidence in the record. Paragraphs 27-29 are not necessary to the resolution of the dispute. Paragraph 30 is subordinate to facts found with the exception of the reference to November 26, 1995 which is not supported by evidence in the record. Paragraph 31 is not necessary to the resolution of the dispute. The second paragraph 29 is subordinate to facts found. COPIES FURNISHED: Lucy Goddard, Esquire Department of Health and Rehabilitative Services 1000 Northeast 16th Avenue, Box 3 Gainesville, Florida 32601 James and Mary Comer, pro se Post Office Box 722 Micanopy, Florida 32667 Gregory D. Venz, Agency Clerk Department of Health and Rehabilitative Services Building 2, Suite 204X 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard Doran General Counsel Department of Health and Rehabilitative Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether the Petitioner is entitled to renewal of a foster care license.
Findings Of Fact Petitioner, Betty Stewart, was licensed by the Department to operate a foster care home on August 5, 1991. Thereafter, until the instant matter arose, Petitioner received a renewal of this license. On August 18, 1997, the Department notified Petitioner that her license would not be renewed. The decision was based upon Petitioner's alleged failure to meet the minimum standards for foster parenting. More specifically, the denial alleged concerns with Petitioner which included: Standard housekeeping standards. Counselors have reported that your home was not kept clean. They noted a stale odor, and observed clothes piled up and roach infestations. Lack of stability in housing. The licensing record indicates that you have had at least five different residences since you were licensed in 1991. Constant moving does not provide stability for the children placed with you. Inadequate medical care for a child in our home. The counselor for a child who had been in your home indicated that you failed to get timely dental care for a child in your home that resulted in the child needing to have a tooth extracted. Additionally it was reported that you did not follow-up with getting a dermatologist's prescription filled for this same child. Concerns that your son was dealing in illegal drugs. While your son did not live with you, he was in and out of your home and having contact with the foster children in your home, which in fact could have a potentially negative impact on them. You did admit to Laura Williams, the foster parent liaison, that you were aware that he was dealing drugs. During the time of Petitioner's licensure, she was licensed at five different locations. That is, she moved from one property to another and relicensed the new location, five times in six years. Additionally, during the time of licensure, Petitioner received a "provisional license" on four occasions. A provisional license is issued when the applicant must take additional measures to comply with all licensure requirements. On four occasions the Department worked with the Petitioner so that she would obtain licensure. For each license, Petitioner executed an agreement to provide substitute care for dependent children as prescribed by the Department. This agreement required Petitioner to comply with all rules implemented for foster care homes and specifically required Petitioner to report any illness of a child to the Department. In one instance, the Petitioner failed to seek immediate dental care for a child placed in her home. The dental problem was made known to the Department when the child was caught shoplifting Oragel, an over-the-counter product used to relieve toothache. Petitioner also did not compel a child to attend counseling sessions with a licensed therapist. Petitioner was responsible for assuring that the child be given transportation to and from such sessions. Although limited to two children by license restriction, Petitioner typically had more than two children placed in her home. Given the shortage for foster care homes, the Department routinely waived the limit and placed additional children with Petitioner even though she was ill-equipped to deal with the extra children. The Petitioner's son, who is now deceased, did not reside with Petitioner during the final licensure period. Although he resided in the community near her home, there is no evidence to support a finding that he was dealing drugs from the licensed premises.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a Final Order denying Petitioner's request for license renewal as a foster care home. DONE AND ENTERED this 13th day of March, 1998, in Tallahassee, Leon County, Florida. J. D. Parrish Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 13th day of March, 1998. COPIES FURNISHED: Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard A. Doran, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Colleen Farmsworth Assistant District Legal Counsel Department of Children and Family Services 111 South Sapodilla Avenue Suite 201 West Palm Beach, Florida 33401 Betty Stewart, pro se 812 Foresteria Drive Lake Park, Florida 33403
The Issue Whether Respondent's foster home license should be revoked.
Findings Of Fact There is no dispute that, at all times material hereto, Ms. Azulphar had a foster home license issued by the Department. Ms. Azulphar became a foster parent in January 1999. As with all new foster parents, Ms. Azulphar was required to complete 30 hours of Model Approach to Partnership Parenting (MAPP) training. Among other things, the MAPP training involves discussions regarding duties and responsibilities of a foster parent, the sexual problems of foster care children, and what to do if a foster care child runs away. Ms. Azulphar and the Department entered into a Bilateral Service Agreement regarding foster care. Both of them agreed to abide by the terms of the Bilateral Service Agreement. The Bilateral Service Agreement provided, among other things, the following: The Department's responsibilities to the foster parents include: * * * j. Support will be shown by responding within 24 hours to telephone messages, written correspondence or any other requests the foster parents may have. * * * Commitment to the Child The decision to accept a child into the home is a major one. . . Most foster children have experienced severe emotional, sexual and/or physical abuse as well as trauma. It is not unusual for children who have been sexually abused to act out in sexual inappropriate ways. Foster parents must be aware that these children need extra monitoring, teaching and showing of appropriate affection in order to grow into healthy children. . . By accepting a child into the home, the foster parent(s) agree to the following responsibilities: * * * d. To ensure that the child has supervision appropriate to his/her age and developmental level. * * * Foster parents have responsibilities and duties to both the department [sic] and the child. Responsibilities to the department [sic] include: * * * k. To notify the Department immediately if a child runs away, is missing or does not return home, even if the foster parent knows where the child is. * * * s. To know where and with whom the child is staying and the type of supervision the child is receiving when foster parents approve an outing or overnight activity. . . Non-compliance with any of the above provisions can result in termination of this service agreement by either the foster parents or the Department. Non-compliance with any of the above [sic] provisions may also result in the department [sic] revoking the home's license to provide foster care pursuant to Chapter 120, Florida Statutes. . . . Any person living with a foster parent is subject to a background check by the Department because such person would have contact with any foster child placed with the foster parent. Such person must not have a disqualifying criminal record1 in order for the person to remain in the foster home during the licensure of the foster home. Ms. Azulphar had a tenant, Louis Bryant, who lived in an attached room to her home, which was converted from a garage. He had his own private entrance to his room. In January 2002, the Department informed Ms. Azulphar that Mr. Bryant, not only had a criminal record, but also had a disqualifying criminal drug record and that, therefore, if she wanted to keep her license, he would have to move. Ms. Azulphar informed Mr. Bryant that he had to move. Mr. Bryant moved, and Ms. Azulphar provided documentation to the Department indicating that he had moved. Ms. Azulphar described Mr. Bryant as a long-time friend and someone that she had relied upon when she first came to the United States. Mr. Bryant was also Ms. Azulphar's former supervisor. Further, even though he was a drug addict, who was skinny and dirty, smelled bad, and needed reminding to bathe, Ms. Azulphar described Mr. Bryant as the only person upon whom she could call when she had an emergency. She also indicated that Mr. Bryant was a handy man who performed repairs for her. Ms. Azulphar admitted that, as to Mr. Bryant, she was a "co-partner." She further admitted that Mr. Bryant was someone she "needs to continue what she was doing." In spite of her reliance upon Mr. Bryant as indicated, Ms. Azulphar showed a willingness to comply with the Department's requirements by requiring Mr. Bryant to move. On or about May 8, 2002, a foster child, F.D.,2 was placed with Ms. Azulphar. F.D. was 12 years of age at the time. F.D. was a special needs foster child because she had a history of being sexually abused at an early age and because F.D.'s father was deceased and her mother had voluntarily surrendered her parental rights. F.D. was the subject of disciplinary action at school. She was suspended for ten days from school for pulling a knife on another student. During the suspension, Ms. Azulphar took F.D. to work with her. F.D. left Ms. Azulphar's workplace without Ms. Azulphar's permission and knowledge. F.D. called her friends who came to Ms. Azulphar's workplace and F.D. left with them. Ms. Azulphar discovered that F.D. was dating a young man who was much older than F.D. Ms. Azulphar believed that the young man was approximately 26 years of age because he "looked" 26 years of age and F.D.'s friends were dating young men who also looked 26 years of age. Ms. Azulphar believed that the young man was among the friends that F.D. contacted to leave Ms. Azulphar's workplace. Also, during F.D.'s suspension, on the afternoon of May 16, 2002, her Guardian Ad-Litem came to Ms. Azulphar's home to visit F.D. The Guardian Ad-Litem knocked but no one answered. F.D. emerged from a neighbor's house. Ms. Azulphar had left F.D. alone at home. Ms. Azulphar had instructed F.D. to wait for the Guardian Ad-Litem at home and to not go outside of the home. Ms. Azulphar talked with the Guardian Ad-Litem on the telephone that same day. She expressed to the Guardian Ad-Litem that she wanted F.D. out of her home. That evening on May 16, 2002, F.D. became so distraught and volatile that she took a knife and threatened to harm herself. Ms. Azulphar called the Department's emergency telephone number and was told to call the Crisis Center for Mobile Children (CCMC). Ms. Azulphar telephoned CCMC, which told her how to talk to F.D. Ms. Azulphar did as she was instructed and F.D. did not harm herself. The next day, May 17, 2002, sometime in the evening after bedtime, which was around 9 p.m., F.D. slipped out of Ms. Azulphar's home. Ms. Azulphar had taken a sleeping pill and was not aware that F.D. was gone. Around 4 a.m. on May 18, 2002, Ms. Azulphar received a telephone call from F.D., who wanted Ms. Azulphar to come and get her. Ms. Azulphar did not want to drive at that time because she had taken the sleeping pill, so Ms. Azulphar asked F.D. to have an adult come to the telephone. Ms. Azulphar believed that F.D. was at a party because of the background noise that she heard, which sounded like a party. Ms. Azulphar recognized that the person who came to the telephone was not an adult, but Ms. Azulphar requested that F.D. be permitted to stay at the person's home until 6 a.m. when she (Ms. Azulphar) would pick-up F.D. F.D. did not wait for Ms. Azulphar. She returned to Ms. Azulphar's home before Ms. Azulphar could get her. Ms. Azulphar did not call the police when she discovered that F.D. was leaving her (Ms. Azulphar's) workplace with the young man who was 26 years of age and when she received the telephone call from F.D. The reason that Ms. Azulplhar did not call the police is that she believed that the police would do more harm than good to F.D., that F.D. had had enough trouble, and that F.D. was a Haitian as she was. After F.D. returned to Ms. Azulphar's home on May 18, 2002, Ms. Azulphar contacted the Guardian Ad-Litem and requested the removal of F.D. from her home. The Guardian Ad-Litem reported the incident to the court and the court ordered an investigation and the removal of F.D. from Ms. Azulphar's home. The Guardian Ad-Litem did not know the results of the court's investigation. During the time that F.D. was in Ms. Azulphar's home, Ms. Azulphar also had, in addition to her own child, T.A., two other foster children, A.A. and her sister, V.A.3 All of the other children agree that F.D. could not be trusted, was a thief, and did not tell the truth. After F.D. was removed from her home, Ms. Azulphar had another foster child placed in her home, who ran away. However, this time, Ms. Azulphar contacted the police and the Department when she discovered that the child had run away. Sometime during the first two weeks that F.D. was placed with Ms. Azulphar,4 the Department's social worker for F.D., Luis Muriel, was making arrangements with Ms. Azulphar to pick-up F.D. Ms. Azulphar requested Mr. Muriel to come to her workplace since F.D. would be there with her; however, he wanted Ms. Azulphar to leave F.D. at home alone. Ms. Azulphar reminded him that she was not to leave F.D. at home alone. However, Mr. Muriel instructed Ms. Azulphar to leave F.D. at home alone and informed Ms. Azulphar that he would be arriving at her home in 30 minutes. Ms. Azulphar contacted a male friend, who was approximately 50 years of age, for assistance and requested that he wait at her home for Mr. Muriel, who would be arriving in 30 minutes. However, she instructed her friend to wait outside in his car, not in her home, and he agreed to do so. When Mr. Muriel arrived at Ms. Azulphar's home and knocked on the door, Ms. Azulphar's friend opened the door. Ms. Azulphar's friend had not complied with her instructions and had gone into her home while F.D. was in the home. The Department had not performed a background check on Ms. Azulphar's friend. There was no reason for the Department to perform a background check on Ms. Azulphar's friend since it was never intended by Ms. Azulphar that he would have contact with the foster children placed with her. As to the incident, Ms. Azulphar had made it clear to her friend that he was not to go inside the home. On May 29, 2002, around 8 p.m., the licensing counselor for Ms. Azulphar's case, Reynaldo Gonzalez, made an unannounced visit to her home after being contacted by F.D.'s Guardian Ad-Litem regarding F.D.'s situation. By that time, F.D. had been removed from Ms. Azulphar's home. Mr. Gonzalez noticed a car parked outside of the house. He knocked on the door. The foster child A.A., who was approximately 15 years of age at the time, looked through the window and informed Mr. Gonzalez that Ms. Azulphar was not at home. Mr. Gonzalez returned around 8:30 p.m. and A.A. was still at home alone. Ms. Azulphar had left A.A. at home alone. However, Mr. Gonzalez's primary concern was not A.A.'s being at home alone. On the following day, around 6:20,5 Mr. Gonzalez returned to Ms. Azulphar's home because the Department had received anonymous information that no food was in the home. The same car was parked outside Ms. Azulphar's home, but the front of the car was parked in a different direction. Ms. Azulphar was not at home, but a relative, who was there, permitted Mr. Gonzalez to enter. Mr. Gonzalez found that there was adequate food in the home. None of the foster children were at home; they were with Ms. Azulphar. Mr. Gonzalez's testimony failed to indicate whether the car was parked along the street or in the driveway. An inference is drawn that the car was parked along the street. Ms. Azulphar voluntarily admitted to Mr. Gonzalez that Mr. Bryant was the owner of the car. She wanted Mr. Bryant to park his car outside her home to make it look as if someone were at home because her home had been burglarized when no one was at home. Further, on one of the days referred to, Mr. Bryant's car was either in disrepair or out of gas.6 According to the Department, Mr. Bryant should not have parked his car in front of Ms. Azulphar's home on the street. However, the evidence fails to demonstrate that such conduct by Mr. Bryant involved contact with the foster children. Ms. Azulphar admits that, at times, Mr. Bryant accompanied her shopping even when the foster children were with her. Ms. Azulphar also admits that Mr. Bryant has cut her grass, but only when she was at home. Ms. Azulphar testified that she obtained the approval of the Department for cutting the grass even though no Department witness recalled approving the action. Ms. Azulphar's testimony is found to be credible. Ms. Azulphar used poor judgment as it relates to Mr. Bryant. At first, Ms. Azulphar believed that, even though Mr. Bryant could not continue to be a tenant, she could continue to have Mr. Bryant to assist her with some things. She now knows that, as long as she has foster children, the Department does not want him to be around the children at any time. Ms. Azulphar believed that nothing was wrong with Mr. Bryant parking or leaving his car at her house. Now, she knows that the Department does not want him to be near her home when she has foster children. A.A. and V.A. were removed from Ms. Azulphar's home when the Department decided to revoke her foster home license. Both A.A. and V.A. want to return to Ms. Azulphar's home. Ms. Azulphar's daughter is in complete agreement with her mother being a foster parent and wants A.A. and V.A. to return.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services enter a final order dismissing the revocation action of the foster home license of Marie Claire Azulphar. DONE AND ENTERED this 30th day of April, 2003, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 30th day of April, 2003.
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 Whether the Respondents are entitled to renewal of their foster home license.
Findings Of Fact Prior to the re-licensing at issue in this proceeding, the Respondents were licensed foster care parents with whom the Department placed minor children for care. When their license came up for renewal in December 1998, the Department informed the Respondents that their license would not be renewed as they had not met the minimum standard for foster parenting. The Respondents have a history of minor incidents which, taken as a whole, have suggested to the Department that they are not able to provide the quality of care to foster children as contemplated by the statute and rules governing foster care providers. More specifically, the Respondents have left minor children ages four and nine in the care of developmentally delayed adolescents. Respondents were not authorized to leave the children with the adolescents nor did they provide meaningful supervision for the young minors. The incident resulted in a call to police who were summoned when the children called their mother. Respondent, Estoria Walker, has also used disparaging comments to and in front of a minor child who was placed in her care. In this instance, in front of the child's case worker, Respondent complained to the child of the volume of food consumed by the child. She sought additional funds to feed the child as she felt the child's board rate was inadequate to cover the costs of feeding her. Also, the Respondent complained about how the child kept herself. These disparaging remarks to and in front of the child did not contribute to a nurturing environment for the child. The child was ultimately moved from Respondents' home as she was miserable there, and the Respondents did not want her to remain. On another occasion the Respondents were caring for a teenager who became pregnant. Respondents delegated the task of informing the Department of the pregnancy to the teen. As foster parents they assumed no responsibility for notifying the caseworker of the situation. As a result, the caseworker for the teen was not promptly advised of the pregnancy. Respondents gave an adolescent in their care permission to leave their home for an extended visit to the child's relative. They did so without the caseworker's approval or knowledge of the visit. They did so without following Department guidelines for extended visits outside of the foster home. Most of the complaints to the Department resulted from the Respondents' failure to provide a loving, nurturing environment for the foster children placed in their home. Nevertheless, other incidents resulted from a claim of improper discipline, including spanking. As to all of these complaints the Department sought to work with the Respondents, to counsel them for performance improvement, and to allow them to retain children in their home despite serious reservations. From as early as 1995, the Department received complaints from the foster children in the Respondents' home that they had been inappropriately disciplined with spanking. As a result, Mrs. Walker was required to review and execute the disciplinary policy to assure the Department that the Respondents would not use physical discipline with the children. Despite this reminder, additional complaints of physical discipline were made against the Respondents. When the time came for the Department's committee to consider the renewal of Respondents' license, the entire licensing file documenting all of the above-identified issues was considered. Thereafter, the Department determined it would not renew the license.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services enter a final order denying Respondents' request for license renewal as foster care parents. DONE AND ENTERED this 19th day of August, 1999, in Tallahassee, Leon County, Florida. J. D. PARRISH 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 19th day of August, 1999. COPIES FURNISHED: Deborah Guller, Esquire Department of Children and Family Services 201 West Broward Boulevard Suite 502 Fort Lauderdale, Florida 33301 Albert and Estoria Walker 5311 Southwest 25th Street Hollywood, Florida 33023 Gregory D. Venz, 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 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue is whether Petitioners' foster home license should be revoked.
Findings Of Fact At all times relevant to this proceeding, Petitioners were licensed to operate a family foster home. Their most current license was effective through April 7, 2004. Petitioners have served as foster parents for about five years. There has been no report of child neglect or child abuse in their foster home prior to the time period relevant here. A. H. is a 10-year-old male. At all times relevant here, A. H. was in the fourth grade. Sometime prior to October 3, 2003, Respondent removed A. H. from his mother's custody and placed him in an initial foster home. A. H.'s first foster home shall be referred to hereinafter as the Gs' foster home. Thomas Munkittrick worked for Respondent as a family service counselor. A.H. was one of Mr. Munkittrick's clients. A. H. had separate visitations with his mother and father on October 6, 2003. Mr. Munkittrick supervised both visits. During a visit to the Gs' foster home on October 14, 2003, Mr. Munkittrick noticed a rash on A. H.'s stomach. The rash appeared to be a ringworm. Mr. Munkittrick did not observe any bruises on A. H.'s arms. On or about October 15, 2003, Mr. Munkittrick spoke to Petitioners to determine whether they would accept A. H. in their home as a foster child. For reasons that are not clear, Respondent changed A. H.'s placement to Petitioners' foster home that same day. On October 16, 2003, Mr. Munkittrick took A. H. to see a medical doctor at Express Care of Belleview. Mr. Munkittrick and A. H.'s mother were present for the medical examination, during which A. H. removed his shirt. Mr. Munkittrick did not observe any bruises on A. H.'s arms. A. H.'s medical record dated October 16, 2003, indicates A. H. had a scratch/bruise on his nose, a ringworm on his stomach, and a rash on his wrist. According to the doctor's notes, A. H. reported that he accidentally injured his nose while playing football with Petitioners' dogs. The doctor's notes do not refer to any bruises on A. H.'s arms. On October 23, 2003, Mr. Munkittrick visited A. H. in Petitioners' home. Mr. Munkittrick saw no visible marks or bruises on A. H. Instead, Mr. Munkittrick observed what he believed was dirt on A. H.'s arms. Mr. Munkittrick also observed that A. H. was slightly flushed from playing outside with Petitioners' dogs, two large Doberman Pinchers. During a visit to Petitioners' home on October 30, 2003, Mr. Munkittrick observed multiple bruises on both of A. H.'s wrists and arms. The bruises were round and as large as quarters. There were no scratch or bite marks on A. H.'s arms. Prior to October 30, 2003, Petitioners had not advised Respondent about the bruises on A. H.'s arms. During the October 30, 2003, home visit, Petitioner R. B., the foster mother, indicated that she had never seen the bruises on A. H.'s arms before Mr. Munkittrick pointed them out. She relied on A. H. to explain how he was injured. During the hearing, Petitioner R. B. admitted that she saw blue/purple bruises on A. H.'s arms for the first time two or three days after his medical examination on October 16, 2003. Despite the inconsistency of Petitioner R. B.'s statements, the greater weight of the evidence indicates that Petitioner R. B. had no first-hand knowledge as to the cause of the bruises. Her testimony that she did not cause the bruises on A. H.'s arms is credible. On October 31, 2003, Mr. Munkittrick went to A. H.'s school to photograph the bruises on his arms. He then took A. H. for an examination by Respondent's child protection team. The examination included an evaluation of the bruises by an advanced registered nurse practitioner. The nurse was qualified by training and experience to assess pediatric injuries resulting from physical and sexual child abuse. The nurse was unable to reach a conclusion as to the exact source of the bruises. She could not rule out that they were self-inflicted. However, the nurse's testimony provides competent evidence that the bruises on A. H.'s arms were consistent with being grabbed by another person and that they were inconsistent with injuries resulting from roughhousing with dogs. Bruises heal in stages identified by colors beginning with red and ending with brown before they disappear. The colors of bruises in order of healing are red, blue, purple, green, yellow, and brown. In general, a bruise is: (a) red within one to two days of infliction; (b) blue within one to four days of infliction; and (c) yellow/green from the fifth or sixth day up to the tenth day after infliction. A. H.'s bruises ranged in color from red to yellow/green to yellow. The yellow and yellow/green bruises were located on both of A. H.'s upper extremities. He had two forearm bruises with a red component. It is highly unlikely that A. H. received the bruises prior to October 6, 2003. It is more likely that the injuries causing the bruises were inflicted approximately one to two weeks prior to October 31, 2003, i.e., between October 18, 2003, and October 31, 2003. A. H. was living in Petitioners' home and attending public school during this period. On the evening of October 31, 2003, Respondent's staff decided to move A. H. to a third foster home. Respondent's child protective investigator took A. H. back to Petitioners' home to pick up his clothes and belongings. Petitioner R. B. became excited and increasingly emotional when she learned that Respondent was changing A. H.'s placement to another foster home. Petitioner R. B. began yelling, in A. H.'s presence, that he was a liar and a "schizo" just like his "schizophrenic mother." The child protective investigator had to ask A. H. to leave the room when Petitioner R. B. began calling him and his mother names. Petitioner R. B.'s behavior on the evening of October 31, 2003, was inappropriate. However, the deputy sheriff, who was assisting with the change in placement, did not make any arrests. On the evening of October 31, 2003, and during the hearing, Petitioner J. B., the foster father, admitted that he had seen the bruises on A. H.'s arms sometime during the week before October 31, 2003. On both occasions, Petitioner J. B. stated that A. H. was crazy. Petitioner J. B. had no first-hand knowledge as to the cause of the bruises. During the hearing, Petitioner J. B. provided credible testimony that neither he nor his dogs caused the injuries. In order to operate a foster home, foster parents must undergo training on an annual basis. The training includes knowing when to advise Respondent about injuries to their foster children. The requirement to report injuries is a part of the annual service agreement signed by Respondent's staff and foster parents.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent enter a final order revoking Petitioners' foster care license. DONE AND ENTERED this 12th day of August, 2004, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of August, 2004. COPIES FURNISHED: J. B. (Address of Record) R. B. (Address of record) Ralph J. McMurphy, Esquire Department of Children and Family Services 1601 West Gulf Atlantic Highway Wildwood, Florida 34785 Paul Flounlacker, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue is whether Respondent should revoke Petitioner's license to operate a foster care home.
Findings Of Fact At all times material to this proceeding, Petitioner was licensed as a therapeutic foster parent. Respondent issued this license to Petitioner through the Devereux Foundation, which operates and maintains a network of foster homes to serve dependent children in Respondent's custody. Respondent places children in therapeutic foster when they have been exposed to a severe degree of physical, emotional, and/or sexual abuse, as well as extreme neglect and/or abandonment. Such children require special care and cannot be disciplined like children in a stable nuclear family. Therapeutic foster parents should never spank or use other physical methods of punishment or behavior management on these children. Many therapeutic foster children have acute and unresolved issues with control and authority. In such cases, attempts by authority figures to assert rigid control over the children will likely provoke emotionally charged oppositional reactions by the children. This is especially true when the children have not developed a relationship with the authority figures. The likelihood that such oppositional reactions will occur is much greater when authority figures attempt to impose their will on the children with the use of physical force. Children in foster care experience great difficulty in learning to trust others. The inability to trust others is reinforced when a near-stranger makes demands on therapeutic foster children, then uses physical force to compel submission. Children from dysfunctional families often experience violence in the homes of their natural parents. The children learn at an early age to respond with violence to stressful situations. The use of physical force on foster children thus generates a real and severe risk of physical injury to the foster children, the foster parents, and innocent bystanders. One purpose of therapeutic foster care is to help children learn that violent behavior is not acceptable. When foster parents use physical force to compel obedience, they reinforce the lessons learned in the homes of their natural parents at the expense of the lessons the foster care program attempts to teach. Therapeutic foster parents undergo special training before they become licensed. The Model Approach to Parenting and Partnership (MAPP) training that all foster parents receive places special emphasis on the emotional fragility of children in foster care and the consequent need to avoid confrontation with foster children. In other words, MAPP training teaches foster parents not to engage in power struggles with their charges. MAPP training emphasizes the use of positive discipline for the inevitable situations in which foster children test the boundaries set by the foster parents. These methods include reinforcing acceptable behavior, verbal disapproval, loss of privileges, and redirection. Any form of verbal abuse or physical force is strictly prohibited. Petitioner received all of the training described above. In March 2001, a sibling group of two sisters (S.M.1 and S.M.2) and a brother (D.M.) were living in a therapeutic foster home operated by Brad and Sharon Carraway through the Devereux Foundation. Mr. and Mrs. Carraway were licensed therapeutic foster parents. Respondent and the Devereux Foundation have a policy that allows for substitute foster care when therapeutic foster parents need some time away from their foster children. In that case, Devereux arranges for another licensed therapeutic foster home in its network to care for the foster children for a period of time, usually a weekend. This arrangement is known as respite foster care. During March 2001, the Carraways needed a weekend away from their foster children to take care of some family business. At that time, Loretta Kelly was the foster care program manager for Devereux in the North Florida area. Ms. Kelly made arrangements for Petitioner and his wife to take the children during the weekend of March 23-25, 2001. The children arrived in Petitioner's home late in the afternoon of Friday, March 23, 2001. As S.M.1 and S.M.2 settled into their room, Petitioner advised them that supper would be served in five minutes. S.M.1 then announced that she was not hungry and would not be going to supper. Petitioner replied that S.M.1 could either go to the table for supper or he would be back in five minutes and make her go to the table. Five minutes later, Petitioner returned to the bedroom. He told S.M.1, who was sitting on the bed, to come in to supper. When S.M.1 refused again, Petitioner grabbed S.M.1 by the wrists and tried to drag her into the dining room. A struggle ensued with S.M.1 yelling for Petitioner to let go. During the struggle, S.M.1's wrist watch broke, leaving scratches on her arm. S.M.2 was in the hall. Hearing her sister call for help, S.M.2 ran in to help S.M.1. S.M.2 pushed Petitioner away from her sister. Petitioner then grabbed S.M.2 by the wrists and struggled with her for over a minute. During the struggle, S.M.2 slid down to a sitting position with her back against the wall. S.M.2 then used her feet in an attempt to break free from Petitioner. The struggle left S.M.2 with a scar from a scratch she received on her arm. Petitioner finally gave up and called the girls' therapist, Lori Farkas, to complain about the situation. S.M.2 heard Petitioner state that he wanted the girls out of his home. The incident was reported to Respondent. Subsequently, Respondent commenced a child protective investigation into the allegations; the investigation was still open on April 20, 2001. Petitioner became angry when he learned what the children told Respondent's investigators. He telephoned Ms. Kelly on the afternoon of April 20, 2001. He accused the children of lying and asserted that they should be punished. He threatened to file battery charges against the children and have them arrested if they did not change their story and "tell the truth." Next, Petitioner telephoned Ms. Carraway. He told Ms. Carraway that she ought to be teaching the girls morals and honesty. He accused the girls of lying. Petitioner informed Ms. Carraway that he was going to consult an attorney and have the girls arrested at school for assault and battery. Petitioner told Ms. Carraway that he would be more believable in light of the children's background. S.M.1 was with Ms. Carraway during Petitioner's telephone call. Ms. Carraway and S.M.1 wrote notes to each other regarding Petitioner's comments during the telephone call. Both girls were apprehensive for some time after this telephone call about the possibility of being arrested. Ms. Carraway called Ms. Kelly immediately after talking to Petitioner. Ms. Kelly then called Petitioner to instruct him not to make any further calls to the Carraway home.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent enter a final order revoking Petitioner's therapeutic foster license. DONE AND ENTERED this 22nd day of April, 2002, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of April, 2002. COPIES FURNISHED: David L. Motes 2023 Duneagle Lane Tallahassee, Florida 32311 John R. Perry, Esquire Department of Children and Family Services 2639 North Monroe Street, Suite 252A Tallahassee, Florida 32399-2949 Peggy Sanford, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
