The Issue The issue in the case is whether the Petitioner's application for licensure of a family day care home should be granted.
Findings Of Fact In June 2003, the Petitioner applied to the Respondent for a license to operate a family day care home. Tim Graddy, an employee of the Respondent, inspected the Petitioner's home located at 1031 Herschell Street, Lakeland, Florida 33815 on June 19, 2003. The purpose of the inspection was to determine whether the Petitioner's home met applicable requirements for licensure as a family day care home. The Petitioner was present at all times during the inspection. Upon completion of the inspection, the Petitioner received a copy of the inspection report and was instructed to contact Mr. Graddy to arrange for a re-inspection after the deficiencies identified in the report were corrected. The inspection report indicates that the Petitioner's background screening information had not been provided to the Respondent by the date of the inspection. According to the inspection report, the Petitioner was to provide such information to the Respondent by no later than August 18, 2003. The inspection revealed that the Petitioner's First Aid and CPR training certifications had expired. According to the inspection report, the Petitioner was to provide renewed certifications to the Respondent by July 19, 2003. Mr. Graddy noted that there were unsecured wooden logs stacked in a play area outside of the house. Additionally, the play area abutted a trafficked road, and the chain-link fence was sagging and did not properly surround the play area. According to the inspection report, the logs were to be moved and the fence repaired by July 19, 2003. Inside the house, Mr. Graddy observed that two floor mats used for napping had tears in the impermeable surface covering and that a high chair seat was torn. Also, the First Aid kit did not contain rolled gauze and required emergency telephone numbers (the abuse hotline and the poison control center) were not posted by the telephone. According to the inspection report, the cited deficiencies were to be remedied by July 19, 2003. Mr. Graddy had no further contact with the Petitioner until sometime in October of 2003, when he received a telephone message indicating that the Petitioner had called. Mr. Graddy returned the call, but was unable to contact the Petitioner. He left a telephone message, but did not hear back from the Petitioner. On or about November 18, 2003, the Respondent issued a Notice of Denial of the Petitioner's license application. The Notice of Denial sets forth the reasons cited by the Respondent for denial of the application as follows: Your background screening results reveal a criminal history that causes the Department to believe you cannot provide a safe and nurturing environment for children because of the nature of the charges, and the frequency of the disqualifying offenses. On June 19, 2003 an inspection of your proposed family day care home revealed the following violations of the Florida Administrative Code (F.A.C.). Your CPR and First Aid certification had expired; Rule 65C-20.009(2)(a), F.A.C. The outdoor play area had wooden logs that posed a safety hazard; Rule 65C- 20.010(1)(e), F.A.C. A section of the chain link fence was broken; Rule 65C-20.010(1)(f), F.A.C. Napping mats with tears in them; Rule 65C-20.010(1)(h), F.A.C. High chair with broken seat cover; Rule 65C-20.010(1)(o), F.A.C. Your first Aid Kit was incomplete; Rule 65C-20.010(3)(a), F.A.C. Emergency telephone numbers not posted, Rule 65C-20.010(3)(b)(1), F.A.C. At the hearing, counsel for the Respondent stated that Respondent was solely relying on the June 19, 2003, inspection report as grounds for denial of the Petitioner's application and withdrew the paragraph related to the Petitioner's alleged criminal history. The Petitioner testified at the hearing. During the testimony, the Petitioner stated that all the deficiencies cited in the inspection report had been addressed by the time of the hearing. The evidence establishes that some, but not all, of the deficiencies were corrected prior to issuance of the Notice of Denial. The background screening information was apparently provided prior to issuance of the Notice of Denial. The First Aid and CPR training certification was not renewed until February 21, 2004. Although the Petitioner testified that the logs were moved and the fence repaired, the evidence fails to establish whether the work was completed prior to the issuance of the Notice of Denial. The floor mats were discarded on the day of the inspection. The Petitioner testified that the high chair was discarded, that the rolled gauze has been replaced in the First Aid kit, and that the required telephone numbers have been posted. Because the Petitioner did not notify the Respondent until the date of the hearing that the deficiencies set forth in the inspection report have been remedied, there has been no inspection of the property to confirm that the repairs were appropriately made. There has been no inspection of the home since June 19, 2003.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent enter a Final Order denying the Petitioner's application for operation of a family day care home. DONE AND ENTERED this 25th day of March, 2004, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of March, 2004. COPIES FURNISHED: Gwendolyn Brison 1031 Herschell Street Lakeland, Florida 33815 Jack Emory Farley, Esquire Department of Children and Family Services 4720 Old Highway 37 Lakeland, Florida 33813-2030 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 deny Petitioner's application to operate a registered family day care home on the grounds that two incidents of child neglect demonstrate Petitioner's inability to ensure the safety of children under Petitioner's care.
Findings Of Fact Respondent is the state agency responsible for registering family day care homes in Florida. Respondent operated a registered family day care in her home from sometime before July 30, 2001, until the registration expired on July 29, 2002. In November 2002, Petitioner applied to operate a registered family day care home, Respondent proposes to deny that application. Respondent's licensing division conducted a background screening investigation of the applicant in accordance with applicable statutes and rules. The investigation revealed two reports in the Florida Abuse Hotline Information System (FAHIS) in which children under Petitioner's care suffered injuries. By letter dated January 27, 2002, Respondent notified Petitioner that Respondent proposed to deny Petitioner's application to operate a registered family day care home (Notice of Denial). The Notice of Denial provides that the two incidents of injuries to children under Petitioner's care demonstrate an inability to "ensure the safety of children to the level necessary to be registered as a family day care." On August 9, 2000, Respondent received a report alleging that a child in Petitioner's care received bite marks. Respondent investigated the report and closed the report in an untimely manner sometime in 2002 as verified for maltreatment. The final report named Petitioner as the perpetrator of maltreatment. On July 30, 2001, Respondent approved Petitioner's application to operate a registered day care home. Respondent approved the application after Respondent received the report of maltreatment on August 9, 2000, but before Respondent closed the report in 2002. The registration approved by Respondent on July 30, 2001, expired on July 29, 2002. On November 1, 2001, Respondent received a second report alleging that a child under Petitioner's care was injured. Respondent investigated the report and timely closed the report verified for inadequate supervision. The report found that a child in Petitioner's care received bite marks, bruising, scratches, and a swollen upper lip while in an unsupervised room with two other children. The report found that the cause of the injuries was unknown. Petitioner did not request a hearing to challenge either the report of maltreatment or the report of inadequate supervision. The time for contesting the content of the reports has expired. Petitioner's registration to operate a family day care home expired on July 29, 2002. Respondent should not grant Petitioner's application to operate a registered family day care home. The evidence is clear and convincing that Petitioner is unable to ensure the safety of children to the level necessary to operate a registered family day care home.
Recommendation Based upon the foregoing Findings of Fact and Conclusion of Law, it is RECOMMENDED that Respondent enter a Final Order denying Petitioner's application to operate a registered family day care home. DONE AND ENTERED this 11th day of July, 2003, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of July, 2003. COPIES FURNISHED: Richard Cato, Esquire Department of Children and Family Services 400 West Robinson Street Suite S-1106 Orlando, Florida 32801-1782 Sheila D. Engum, Esquire Post Office Box 620837 Oviedo, Florida 32762-0837 Paul Flounlacker, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700 Jerry Regier, Secretary Department of Children and Family Services 1317 Winewood Boulevard Building 1, Room 202 Tallahassee, Florida 32399-0700
The Issue The issue in this case is whether the Petitioner, the Department of Health and Rehabilitative Services (HRS), should revoke or suspend the foster care license of Larry and Kathleen Abbott.
Findings Of Fact Larry and Kathleen Abbott have been licensed foster parents for a number of years. They were licensed in 1983 in HRS District 6 (Hillsborough County and Manatee County) and in 1986 in HRS District 5 (Pinellas County). Despite some criticism by HRS staff, their license was renewed annually since 1986. Their last license expired and was required to be renewed on October 25, 1991, after the commencement of this proceeding. By their Agreement to Provide Foster Care for Dependent Children, the Abbotts agreed to "hold confidential all information about the child and his family" and to "discuss such information only with representatives of the Department or with appropriate specialists at the request of the Department." On or about January 28, 1990, HRS initiated proceedings to place a female baby named Andrea, who was born on June 28, 1989, in shelter care due to her failure to thrive and her mother's lack of parenting skills. On or about February 23, 1990, the child was placed in foster care in accordance with a Performance Agreement. The goal under the Performance Agreement was to return the child to the care of her mother by August 31, 1990. (This goal was later extended to February 23, 1991.) However, meanwhile, due to the mother's lack of parenting skills and multiple allegations of abuse, the foster parents agreed not only to provide the child with adequate food, clothing, shelter, supervision and affection, but also to report to HRS any concerns regarding visitation with the mother. Since the Abbotts were not Andrea's initial foster parents, they did not sign the Performance Agreement. However, although they never signed the agreement, when they became Andrea's foster parents on or about April 30, 1990, they also agreed to the terms of the Performance Agreement. When the Abbotts got Andrea, she had a medical problem called "G.U. Reflux." HRS wanted the Abbotts to have this condition appropriately followed by a physician and wanted it documented by a physician that the problem had cleared. An appointment scheduled for this purpose had to be cancelled for some reason and, while discussing rescheduling the appointment with the physician's medical staff, Mrs. Abbott reported her observation that the problem already had cleared. Based on the report from Mrs. Abbott, the appointment was not rescheduled, and the physician closed the case based on Mrs. Abbott's report. HRS apparently feels that the Abbotts were less than impartial in their evaluation of Andrea's medical condition. HRS witnesses asserted that the Abbotts decided early on that the child's symptoms that resulted in the G.U. Reflux diagnosis actually were caused by the natural mother's physical abuse and neglect of the child. The HRS witnesses contended that the Abbotts' beliefs warped their judgment and impelled them, inappropriately, to cancel the doctor appointment based on their beliefs, and in order to prove their beliefs to be correct. But the evidence in this case did not prove HRS' contentions. From the outset of the Abbotts' foster care for Andrea, the Abbotts were very interested in knowing all of the background about Andrea, including the allegations against her natural mother. The natural mother was allowed to keep her two other children. The Abbotts were interested to know how the mother was caring for the other two children, in part as it might be relevant to the ultimate disposition of Andrea's case but also in part for the sake of the other children as well. Mrs. Abbott seemed to question whether the HRS investigations on the other children, which were closed as "unfounded," were properly conducted. But there is no evidence that the Abbotts did or said anything in these earlier time periods in their foster care for Andrea that HRS viewed to be improper. At some point relatively early in the Abbotts' foster care of Andrea, Mrs. Abbott pointed out to her HRS foster care counselor that Andrea's name was similar to that of another child living in the home, and Mrs. Abbott wanted to know if it would be permissible to call Andrea by a nickname. The HRS counselor said that would be fine. Later, near the holidays in late 1990, Andrea's natural mother expressed concern to the HRS counselor that the Abbotts had been calling Andrea by the name Nicole and that she was not responding to Andrea any more. The HRS counselor spoke to the Abbotts and asked them to stop calling the child Nicole. She explained that, when she authorized the Abbotts to call Andrea by a nickname, she did not mean they could call her by a different proper name. The Abbotts, who now see the error of judgment that they made, immediately stopped calling the child Nicole. As the goal of reunification by February 23, 1991, approached, Mrs. Abbott began to question the propriety of going ahead according to schedule. HRS protective services had raised questions regarding the natural mother's readiness to take care of Andrea. The HRS counselor also had made statements to Mrs. Abbott which made her suspicious that the counselor's supervisor would not make the decision to reunify the family on the basis of the best interests of the child. (It was intimated that the supervisor might be more concerned with her unit's statistics.) At bottom, the Abbotts thought reunification should be postponed; HRS, especially through the counselor's supervisor, took the position that reunification should go forward as scheduled. The Abbotts also disapproved of the natural mother's male friend, who was cohabiting with her in her apartment. The HRS counselor told Mrs. Abbott that it was not permitted for the natural mother to have a male friend living with her in her apartment while she was receiving certain welfare benefits. She told Mrs. Abbott that the natural mother would be in trouble if the landlord knew. HRS asserted that Mrs. Abbott took it upon herself to tell the landlord, but there was no evidence upon which such a finding could be made.2/ One day, on or about January 11, 1991, the natural mother did not make a scheduled appointment for purposes of visitation with Andrea. Mrs. Abbott understood that the natural mother sometimes worked at the day care facility located at the apartment complex where the natural mother lived. This was the day care facility utilized by the natural mother for her other children. It was also proposed for Andrea after reunification. Mrs. Abbott identified herself to the day care director in terms of Andrea, the natural mother and the children at the day care. The natural mother was not there. No finding can be made as to the subject matter of the remainder of the conversation.3/ The day care director reported some of the conversation with Mrs. Abbott to the HRS protective services staff responsible for the children, who brought the matter of Mrs. Abbott's alleged "meddling" and "breach of confidentiality" to the attention of the HRS counselor and her supervisor. They reprimanded Mrs. Abbott, who became even more suspicious of HRS and its protective services staff. On or about April 5, 1991, Andrea was returned to the Abbotts after a scheduled weekend visitation with the natural mother.4/ Mrs. Abbott observed marked and unusual redness and swelling in the child's genital area and became concerned that the natural mother's male friend might be sexually abusing the child. Although she thought it was diaper rash, the HRS foster care counselor authorized Mrs. Abbott to have the child examined by a physician at the Bayfront Medical Center. The doctor's nurse agreed with Mrs. Abbott that the redness was too concentrated to be diaper rash, reinforcing Mrs. Abbott's beliefs. The doctor prescribed Desitin and sitzbaths, and had Mrs. Abbott call back for test results. The eventual diagnosis was that the child had a bacterial staph infection.5/ Despite the diagnosis, Mrs. Abbott continued to maintain strong feelings that the child was being physically abused. These suspicions were instigated in part by comments from the doctor that the symptoms could come from being touched by dirty hands, from Mrs. Abbott's understanding that the natural mother's male friend worked as manager of an auto service station, and from her having seen him with dirty hands as a result of his work.6/ Mrs. Abbott had several discussions with the HRS foster care counselor about her suspicions. The HRS counselor was unable to convince Mrs. Abbott to drop her suspicions in light of the absence of solid evidence of sexual abuse. Mrs. Abbott felt there were indications that Andrea was "severely traumatized" by visits with her natural mother. But HRS personnel perceived no evidence of this. At this point, HRS and the Abbotts essentially disagreed as to how Andrea's case should proceed. HRS thought that there was no basis on which to change the goal of reunification. Mrs. Abbott felt that reunification should be postponed and also suggested that it was HRS' responsibility to secure a guardian ad litem. HRS decided that a meeting should be held among all concerned to resolve the disagreement. The meeting was held on or about April 9, 1991.7/ From opening remarks made by the counselor's supervisor, Mrs. Abbott felt that the purpose of the meeting was not to discuss the issues to reach a solution but to present a united HRS front to press forward for reunification. Mrs. Abbott felt that, in that atmosphere, there was no point in her speaking against reunification, but she continued to maintain her negative feelings about it and resolved in her mind to continue to oppose reunification on other fronts. She asked the HRS counselor if it was permissible to contact the chairperson of the reunification committee directly and was told that there was nothing to prevent her from doing so. On or about April 11, 1991, the HRS counselor authorized Mrs. Abbott to have the child seen by a child protective team (CPT) physician. The CPT physician affirmed the previous diagnosis and prescribed an antibiotic. The Abbotts did not immediately fill the prescription. They told the HRS counselor that they did not have Medicaid authorization to have the prescription filled through Medicaid. The counselor thought the authorizations had been sent to the Abbots but promised to send or deliver to them another one. On one occasion, when the counselor was at the Abbott house, the counselor went to her car to get the necessary form, but discovered she did not have any with her. On another occasion, the counselor was to give Mrs. Abbott the authorization form at a meeting they were at, but they both forgot to take care of that item of business. Meanwhile, the Abbotts continued to use Desitin.8/ On or about April 19, 1991, after the redness and swelling seemed to the Abbotts to be going away, the natural mother had Andrea for another overnight visit. Still suspicious, Mrs. Abbott had asked the HRS counselor to check the child's genital area as soon as possible after the visit. When the Abbotts got the child back from the HRS counselor, Mrs. Abbott checked the child herself and was surprised and upset to see more redness and swelling. She immediately telephoned HRS and spoke with the counselor's supervisor. She was instructed to bring the child to the child protection center immediately. When the CPT physician learned that the Abbotts had not yet started the prescription from over a week earlier, she became upset and threatened to telephone the Florida abuse registry to report the Abbotts for medical neglect for failure to obtain and administer the prescription. The HRS supervisor intervened and dissuaded the physician from making the call by assuring her that the prescription would be obtained and administered immediately. The CPT physician's diagnosis was that, although sexual abuse could not be ruled out, the problem was more likely secondary to less than adequate diaper changing and persistence of the previous staph vaginitis. Mrs. Abbott did not accept the diagnosis but continued to suspect sexual abuse. She opposed further visitation with the natural mother so long as the male friend resided in the same apartment. Eventually, a reunification meeting was held. The Abbotts did not attend. It was decided to reunify the family. The Abbotts cooperated in making all necessary final arrangements to get Andrea ready. Reunification went forward on or about May 20, 1991. After reunification, Mrs. Abbott continued to show interest in Andrea. After taking a two-week vacation, Mrs. Abbott got permission from the HRS counselor to telephone once a week to see how Andrea was doing. Mrs. Abbott also asked to know the name and address of Andrea's private day care, but the counselor said she could not have that information. After five weeks, the counselor's supervisor had the counselor cut off any further contact with the Abbotts concerning Andrea. Mrs. Abbott said to let her know if HRS had to take Andrea back. She said that she and her husband had much invested in caring for Andrea and that they felt as if she were their own child. If HRS had to take Andrea back, the Abbotts wanted her back and would be interested in adoption. Later, the Abbotts asked for another assignment essentially to help take their minds off of Andrea. On two occasions, Mrs. Abbott criticized the care being provided by other foster parents and suggested that the foster children be transferred to the Abbotts. HRS viewed this as evidence that the Abbotts had become so attached to Andrea that they had lost their good judgment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Petitioner, the Department of Health and Rehabilitative Services (HRS), enter a final order suspending the foster care license of Larry and Kathleen Abbott for 90 days. 9/ RECOMMENDED this 5th day of March, 1992, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of March, 1992.
The Issue Whether the Department of Children and Family Services (the "Department") had just cause to revoke the license of Petitioner to operate a family day care home.
Findings Of Fact Based upon the testimony and evidence received at the hearing, the following findings are made: From April 15, 1987, through March 31, 2001, Marcia Edwards operated a registered family day care home at 15475 Chloe Circle, Fort Myers, Florida 33908. The Department regulates three types of day care facilities. In descending order of regulatory oversight, they are a licensed child care facility, a licensed family child care home, and a registered family child care home. Sections 402.305 and 402.313, Florida Statutes. While the first two categories of facilities require annual on-site Department inspections, background screening for all personnel, training, and more extensive paperwork, a registered family day care home involves no Department inspections and only requires that the operator complete a training course and provide to the Department certain paperwork and that the operator and other household members undergo background screening. The operator of a registered family day care home must comply with the limits on the number of children under care, as set forth in Subsection 402.302(7), Florida Statutes. Ms. Edwards had been reminded of the requirement for background screening of household members at least once, via letter dated February 12, 1993. Nonetheless, the Department received two complaints in December 1994, regarding the presence of an unidentified person in the home. One complaint noted that an "unidentified male houseguest was eating and drinking the children's food." The second complaint noted that Ms. Edwards was out of town and left the children in the care of her mother and "a guy named Wayne." On January 4, 1995, the Department sent Ms. Edwards a letter informing her of the complaints and reminding her that she could not leave children with persons who had not undergone background screening. The letter noted that neither Ms. Edwards' mother nor "Wayne" had undergone background screening. The adult male referenced in the complaints was Wayne Brueckman, who was residing in the Edwards home. On February 6, 1995, in compliance with the Department's letter, Ms. Edwards submitted the necessary information to initiate background screening on Mr. Brueckman, listed as a "Household Member" and "Sitter/Relief." Mr. Brueckman's background screening revealed no disqualifying information. Ms. Edwards was reminded of the statutory capacity limitations in person and in writing at least 11 times between September 1987 and June 1999. On at least five occasions, Ms. Edwards responded that she understood the capacity limitations. Nonetheless, Department employees personally observed violations of the capacity limitations on at least five separate occasions. By letter dated July 7, 1999, the Department gave Ms. Edwards an administrative warning that she would be subject to imposition of a fine if she continued to operate in violation of the statutory capacity limitations. On August 13, 1996, an abuse report was received by the Department that Wayne Brueckman sexually abused D.S., a three- year-old boy, in the Edwards home. The child had told his mother that Mr. Brueckman kissed his penis, put a "white thing" in his anus, and spanked him when he defecated in his pants. However, the child would not repeat his allegations to protective investigator Mae Cook, and an examining physician could find no physical evidence of sexual abuse. Mr. Brueckman denied the allegations. Ms. Edwards was interviewed by Ms. Cook concerning the August 13, 1996, complaint. Ms. Edwards denied any inappropriate activity and vouched for Mr. Brueckman as her friend of 20 years. Though she closed the file because she did not have sufficient evidence to confirm the allegations, Ms. Cook strongly suggested that children staying overnight not be allowed to sleep in Mr. Brueckman's room and that he not be left alone at any time with children, to avoid any repetition of such allegations. A repeated citation in the violation notices from this point forward was that Ms. Edwards would leave Mr. Brueckman alone with the children in her care for extended periods of time. Concerns regarding Mr. Brueckman were also raised during an investigation of another sexual abuse report received by the Department on November 18, 1996. This complaint involved Z.A., a three-year-old boy in care at the family day care home. The child told a story of some adult in the Edwards home rubbing his genitals, but his limited verbal skills made it unclear whether a man or woman did the touching. Wayne Brueckman and Marcia Edwards were both interviewed by the protective investigator and both denied any inappropriate activity. Again, there was no physical evidence to confirm the allegations. On February 5, 2001, the Department received an abuse report that W.W., a 19-month-old boy in care at the Edwards home, had bruises along his spine and arms, two large bumps on his head, and a patch of hair loss on the top of his head. Medical examinations by the Child Protection Team and the child's pediatrician determined the injuries were significant, inflicted and the result of physical abuse. The abuse report was called in by J.W., the divorced father of the child. W.W. lived with his father and his older sister in the home of J.W.'s mother. J.W.'s teenaged nephew also lived in the house. W.W. did not see his biological mother. J.W. worked as a chef, and left W.W. and his older sister at the Edwards home on evenings that he worked. The medical determination of the approximate time of injury indicated the injuries occurred either at the child's residence or the Edwards family day care home. When at his residence, W.W. was in his father's care. J.W. denied inflicting the injuries on his son, and discounted the possibility that anyone else living in his household might have done so. J.W. was certain that his son's injuries were inflicted at the Edwards home. W.W.'s older sister told investigators that "bad boys" at the Edwards home had inflicted the injuries on the boy. J.W. readily consented to the CAT Scan, eye examination, and clotting factor test recommended by the pediatrician. The father expressed concern about the supervision provided by the family day care home. He recalled several times in the past that when he came to pick up his children at night, he could look in the window of the Edwards home and see Mr. Brueckman sleeping. It required lengthy knocking and ringing of the doorbell to finally rouse Mr. Brueckman or anyone else in the home. Wayne Brueckman and Marcia Edwards were interviewed by the Protective Investigator. Both denied any inappropriate activity or failure to supervise. However, based upon the medical evidence, and multiple interviews including questioning of the children in attendance at the family day care home, the report was closed as verified. The Protective Investigator concluded that the child was injured by other children at the family day care home. The case determination found that Marcia Edwards and Wayne Brueckman inadequately supervised and neglected W.W. On February 22, 2001, while the W.W. case was being investigated, Ms. Edwards applied to renew her family day care home registration. Based upon the W.W. investigation, the Department issued a denial of registration on May 29, 2002. Ms. Edwards requested a formal administrative hearing to contest the denial of registration. The Department forwarded the matter to the Division of Administrative Hearings, where it was assigned DOAH Case No. 01-2840. A hearing was scheduled for September 19, 2001, in Fort Myers, Florida, before Judge Daniel S. Manry. Counsel for Ms. Edwards requested a continuance due to a scheduling conflict. Judge Manry granted the continuance and rescheduled the hearing for October 19, 2001. On October 12, 2001, the Department filed a motion to relinquish jurisdiction, accompanied by a settlement agreement between the parties. On October 15, 2001, Judge Manry entered an order closing the file in DOAH Case No. 01-2840. The settlement agreement required licensure of the family day care home, which would obligate the family day care home to comply with increased regulatory standards. One such standard prohibits the owner from working out of the home during the hours the family day care is operating. Rule 65C- 20.009(1)(a), Florida Administrative Code. In the settlement agreement, Ms. Edwards affirmatively recognized her on-going obligation to comply with all requirements of the Florida Statutes and Administrative Code applicable to family day care homes. The settlement agreement also provided that the Edwards home would receive a consultation by Child Care of Southwest Florida ("CCSWF"), a private, non-profit regional organization that, among many other services, provides training and technical assistance to home-based child care providers. This consultation would be at the Department's expense. CCSWF's consultant would assess the home's compliance with licensing standards and make suggestions as to implementation of best practices. The Department's experience has been that CCSWF's consultation, technical assistance, and training have proven successful in improving marginal child care providers. On December 17, 2001, Lisa Bledsoe, the infant/toddler coordinator for CCSWF, visited the Edwards home for the required consultation. Ms. Bledsoe rated the home based on the Family Day Care Rating Scale ("FDCRS"), an objective tool developed by the National Network for Child Care for the assessment of infant/toddler group care. The FDCRS consists of 32 items which assess the quality of center-based child care for children up to 30 months of age. This 32-item scale covers six categories: Space and Furnishings for Care and Learning, Basic Care, Language and Reasoning, Learning Activities, Social Development, and Adult Needs. Each item can be ranked from 1 to 7. A ranking of 1 describes care that does not even meet custodial care needs while a ranking of 7 describes excellent, high- quality personalized care. The Edwards family day care home received a cumulative score of 2.375 on the FDCRS. Deficits included a sterile and child-unfriendly interior, lack of interesting and colorful pictures and no pictures at child's eye level, insufficient opportunity for outdoor play, minimum hand washing requirements not met, diapers not checked regularly, failure to conduct regular fire drills, dim lighting, and insufficient activities to encourage language development. Ms. Bledsoe contacted Ms. Edwards to notify her the completed rating would be mailed to her. Ms. Bledsoe offered follow-up visits, technical assistance, and training classes for caregivers. Ms. Edwards rejected the offer of further assistance. While acknowledging that her recommendations were not mandatory, Ms. Bledsoe could recall no other day care provider rejecting additional help from CCSWF, which is provided free of charge. The need for Ms. Edwards to provide supervision at the family day care home and to be present was an important issue in the settlement of DOAH Case No. 01-2840. On October 10, 2001, prior to the signing of the settlement agreement, Ellen Blake, a licensing counselor for the Department, conducted a pre- licensing orientation and review at the Edwards home. Ms. Blake and Ms. Edwards had a lengthy discussion about supervision requirements. Ms. Edwards told Ms. Blake that she would be absent only when taking and picking her children up from school. She and Mr. Brueckman were sharing the care of the children. After obtaining licensure, Ms. Edwards appeared to be providing closer supervision of Mr. Brueckman. Ms. Edwards was present for six of the seven licensing inspections the Department performed between October 10, 2001, through June 18, 2002. However, testimony from Ms. Edwards' own witnesses established Ms. Edwards was readily available in the evenings to do extensive hours of volunteer work. Additionally, she transported her own minor children to after-school and weekend activities and was always available to transport other people's children to and from school and outside activities. Further, Ms. Edwards operated a photography business that often involved out-of-home shoots, including a large annual undertaking at St. Xavier School. Mr. Brueckman was left alone with children when Ms. Edwards was out of the home. Ms. Edwards' witnesses also established that she provides child care 24 hours a day, 7 days per week, which is a service not readily available in the community. The home is consistently well utilized, especially during the expanded hours. Mr. Brueckman was providing evening and night supervision, and slept in the same room as the children under his care. The Edwards have three minor children who often have multiple friends spend the night for sleep-overs. Neither the Edwards children nor their friends were restricted from access to the designated child care room. On June 13, 2002, the Department received an abuse report stating that Wayne Brueckman sexually abused D.S., a two- and a half-year-old boy in care at the Edwards family day care home. On June 20, 2002, during an interview with the Lee County Sheriff's Office, Mr. Brueckman admitted to inappropriately touching the child's penis and having the child touch his penis during diaper changes. Mr. Brueckman has been charged with two counts of felony lewd and lascivious molestation and is awaiting trial. Commission of sexual battery on a two-and-a-half-year- old child is a serious violation of the obligation of a child care provider to supervise a child entrusted to their care and for which they are receiving payment. Molestation of a child creates a great likelihood of actual or potential harm. Mr. Brueckman lived at the Edwards home and received only room and board for the continuous care he provided for the children of paying clients, as well as Ms. Edwards' three minor children and their numerous friends. Mr. Brueckman admitted to having had no dating or sexual relationships with an adult for over ten years. He had no private time and felt overwhelmed by his work situation. On June 20, 2002, the Department cited Ms. Edwards for a deficiency in supervision as she failed to meet the needs of children in her care due to Wayne Brueckman's molestation of D.S. The operator of a family day care home is ultimately responsible for the supervision of the children in care. Rule 65C-20.009(3)(a), Florida Administrative Code. Upon learning of Mr. Brueckman's actions, Ms. Edwards immediately evicted him from her house. To meet the requirement that she have a trained substitute caregiver in the home, Ms. Edwards designated her husband as her substitute in July 2002. As of the date of hearing, Mr. Edwards had not completed the required training. During the nine licensing inspections the Department performed between October 10, 2001 through July 1, 2002, various violations of minimum licensing standards were found, including: inadequate lighting in the playroom; failure to keep up-to-date immunization records; failure to keep on file the required enrollment information; ants on the kitchen table; home, furnishings, toys and equipment not kept clean and in good repair; incomplete first aid supplies; and hazardous materials (alcoholic beverages and protein shake mix) within a child's reach. Ms. Edwards corrected all these violations. The Department never sought to fine Ms. Edwards for any of the cited violations. By notice, dated August 14, 2002, the Department revoked Ms. Edwards' license based on the reasons delineated in the letter including past history, licensing inspections, the arrest of Mr. Brueckman for lewd and lascivious molestation of a child at the family day care home, and the ongoing failure to have a qualified substitute.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered revoking the license of Marcia Edwards to operate a family day care home. DONE AND ENTERED this 5th day of February, 2003, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON 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 5th day of February, 2003.
The Issue Whether Rule 64B4-21.007, formerly numbered 59P-21.007, Florida Administrative Code, is an invalid exercise of delegated legislative authority. Case No. 97-5032RU Whether the determination, in the first instance, by the Respondent of whether a petitioner for a Chapter 120, Florida Statutes, formal hearing has raised a disputed issue of material fact, is a statement that constitutes a rule, pursuant to Section 120.52(15), Florida Statutes.
Findings Of Fact Based on the stipulation of the parties and the evidence educed at hearing, the following findings of fact are found: Petitioner filed an application for licensure as a marriage and family therapist pursuant to Section 491.005, Florida Statutes. After consideration of the documents submitted by Petitioner, Respondent issued its Order of Intent to Deny filed August 1, 1997. The grounds stated by the Respondent for denying Petitioner's application are that Petitioner did not demonstrate that he completed two years of clinical supervision under the supervision of a supervisor that meets the qualifications stated in Rule 64B4-21.007, Florida Administrative Code. Petitioner completed six semester hours of graduate coursework in marriage and family systemic theories and techniques at an accredited university. The courses were taught by Petitioner's clinical supervisor. Petitioner's supervisor for his clinical experience is a licensed psychologist who did not complete, as a student, six semester hours or eight quarter hours of graduate coursework in marriage and family systemic theories and techniques. The Board interprets Rule 64B4-21.007 to require the supervisor to take the coursework as a student. Teaching these subjects is not considered coursework. Petitioner filed a timely Petition for Formal Hearing which alleged that he had completed two years of clinical supervision under a qualified supervisor. Respondent denied Petitioner's Petition for Formal Hearing on the grounds that Petitioner had not raised a disputed issue of material fact. Petitioner filed a notice of appeal of Respondent's Order denying the Petition for Formal Hearing. Said appeal is pending before the Florida First District Court of Appeal. When Respondent receives petitions for hearing on licensure denials requesting a hearing pursuant to Section 120.57(1), Florida Statutes, the Board reviews the petition and the application file and determines if the applicant has raised a disputed issue of material fact. Rule 64B4-21.007, Florida Administrative Code, was originally adopted on July 6, 1988, as Rule 21CC-21.007. The rule, as originally promulgated, defined "qualified supervisor" as, inter alia, a licensed psychologist who also meets the educational requirements for licensure as a marriage and family therapist. The language requiring the licensed psychologist to meet the educational requirements for licensure as a marriage and family therapist was deleted by the Board in 1993. The deleted language would have required the supervisor to demonstrate not only six semester hours of graduate coursework in marriage and family systemic theories and techniques, but also to demonstrate all of the coursework required for licensure as a marriage and family therapist, a practicum in marriage and family therapy under a qualified supervisor as defined by the Board, and supervised experienced under a qualified supervisor as defined by the Board. In 1996, the Board amended the rule to define "qualified supervisor" as, inter alia, a licensed psychologist who "can document a minimum of six semester or eight quarter hours of graduate coursework in marriage and family systemic theories and techniques." The purpose of the amendment was to provide interns access to qualified people to supervise applicants for licensure in marriage and family therapy, while ensuring that the supervisor was in fact supervising for marriage and family therapy, i.e., training marriage and family interns. Significant differences exist between the profession of marriage and family therapy and the use of marriage and family systemic theories as a modality in the practice of psychology. The legislature recognizes those differences and requires specific education for each of the licenses issued under Chapter 491. The uniqueness of marriage and family therapy as a distinct profession is an acceptance and integration of a systemic paradigm of thought. The professional marriage and family therapist sees the whole as greater than the sum of its parts and seeks to understand the interrelationship of the parts. The education and training required for entry into the profession of marriage and family therapy provides socialization into the systemic framework of the profession, and the two years of supervised clinical experience is a part of that socialization process. The Respondent alleges that it would not be appropriate for the Board to accept only teaching experience in lieu of coursework for an individual to meet the requirements a qualified supervisor. The Board accepts various kinds of educational experiences as meeting the educational requirements of Rule 64B4-21.007(1)(d), including audited courses and externships from recognized clinics. In requiring "qualified supervisors" to demonstrate education, as opposed to teaching experience, the Board seeks to establish a standard and fair evaluation procedure. There is a standardization that has an element of fairness in a paper review in accepting a transcript from a regionally accredited institution as proof of the required education. The Respondent also alleges that accepting teaching experience as meeting the educational requirements of Rule 64B4-21.007 presents a daunting task and would amount to accreditation by the Board of courses taught by persons applicants seek to have approved as qualified supervisors.
The Issue The issue is whether Petitioner's application for licensure to operate a family day care home should be denied.
Findings Of Fact On June 6, 2008, Petitioner applied for a license to operate a family day care home in Bartow, Florida. As part of the licensure process, the Department is required to conduct an inspection of the home where Petitioner's proposed family day care would be operated. The inspections are conducted by the Department's family safety counselors. Patricia Step was the family safety counselor initially responsible for conducting the licensure inspection of Petitioner's home. On February 20, 2009, prior to conducting the actual inspection, Ms. Step completed a preliminary walk-through of Petitioner's home. The purpose of the walk-through was to advise Petitioner of areas of her home and property that were not in compliance with required standards and needed to be corrected or addressed prior to the licensure inspection. After completing the initial walk-through, Ms. Step listed the areas that needed to be corrected or addressed prior to the licensure inspection in preliminary review notes, which she gave to Petitioner. Those areas were as follows: (1) a fence at least four feet high was needed around the playground area in the backyard; (2) the alarm on one of the two doors in the master bedroom, specifically, the master bathroom door leading to the pool, needed to be repaired; (3) the screen door needed to be locked from the inside so that a child playing outside could not access the swimming pool5; and (4) locks needed to be placed on kitchen cabinets containing cleaning supplies and other harmful items, and knives needed to be placed in upper cabinets. On February 27, 2009, a week after the initial walk-through, Ms. Step conducted a licensure inspection of Petitioner's home. This date was mutually agreed upon by Petitioner and Ms. Step on February 20, 2009, after Petitioner indicated that she could have the four areas of non-compliance corrected or addressed in a week. During the licensure inspection, Ms. Step determined that Petitioner had addressed and/or corrected three of the four items listed in the preliminary review. The one item that had not been addressed was the "pool alarm on the [master bathroom] door" leading to the swimming pool. The alarm on the master bathroom door was part of Brinks' alarm system that included all the other doors in the house which led outside or to the pool area. Petitioner and her husband had this "high tech" alarm system installed after the April 23, 2006, incident discussed below. The alarm system could be programmed to allow each interior door to cause either the alarm to sound or a "chiming sound" when anyone opened the interior door to exit the house. At the time of the inspection, all the interior doors leading to the pool were programmed so that when the alarm system was turned on, the alarm would sound if anyone opened those doors.6 Except for the master bathroom door, the alarm on all the other doors leading to the pool were working properly. Ms. Step recorded the results of the February 27, 2009, inspection on the Department's Inspection Checklist form ("Inspection Checklist"). Of the 38 areas listed on the Inspection Checklist, Ms. Step indicated that Petitioner's application and/or home were non-compliant in two areas-- background screening and swimming pools. In the area of background screening, Ms. Step noted that there was no local criminal background check on file for Carlos Granados, Petitioner's cousin who was temporarily living in Petitioner's household. In the area of swimming pools, Ms. Step noted two areas of non-compliance: (1) the swimming pool at Petitioner's home was not properly maintained; and (2) the "pool alarm" was inoperable. Although the Inspection Checklist noted that the "pool alarm" was inoperable, Ms. Step never told Petitioner that a "pool alarm" needed to be in the swimming pool. Rather, Ms. Step spoke to Petitioner only about the need to repair the alarm on the master bathroom door that led to the pool.7 Based on Ms. Step's statements to Petitioner about the "alarm" and her preliminary review notes, both Ms. Step and Petitioner understood the reference to "pool alarm" on the Inspection Checklist to mean the alarm on the master bathroom door. The Inspection Checklist completed on February 27, 2009, specified that the "due date" to correct the non-compliant areas was April 3, 2009. After completing the licensure inspection on February 27, 2009, Ms. Step intended to return to Petitioner's home to determine if the non-compliant areas had been brought into compliance. However, Ms. Step never returned to Petitioner's home. Instead, Vicki Richmond, a family safety counselor, followed up on Petitioner's progress in addressing the non-compliant areas8 while she was at Petitioner's home conducting a complaint investigation.9 On March 13, 2009, nine months after Petitioner submitted her licensure application, Ms. Richmond conducted a Central Abuse Hotline search on Petitioner and her husband as part of the application review process. The Department is required to search the records of the Central Abuse Hotline for reports of abuse, neglect, or abandonment. This search provides information as to whether Petitioner's name appears in those records, and, if so, whether there were "verified" indicators of maltreatment of children. Both Petitioner and her husband consented to this search. The Central Abuse Hotline search revealed a verified report for inadequate supervision by Petitioner and her husband and some indicators of maltreatment, asphyxiation. The report involved an incident that occurred on April 23, 2006, in which Petitioner and her husband's then three-year-old daughter almost drowned. On or about March 13, 2009, Ms. Richmond notified Ms. Step of the report and advised her that the verified findings needed to be addressed prior to proceeding with the license. On March 20, 2009, while driving across Highway 60 in the Bartow area, Ms. Richmond saw a sign with the name of Petitioner's prospective family day care home and her address and telephone number. Concerned that the sign did not include a license number, Ms. Richmond contacted the licensing office to verify whether Petitioner's home was a licensed family day care home. She was advised that Petitioner's licensure application was "pending" and had not been approved. Ms. Richmond then called Ms. Step to check the status of Petitioner's licensure application. During that conversation, Ms. Step reminded Ms. Richmond that this was the applicant for whom she (Richmond) had recently done the Central Abuse Hotline search. On March 23, 2009, as part of the complaint investigation about Petitioner's sign, Ms. Richmond made an unannounced visit to Petitioner's home. Ms. Richmond advised Petitioner that it was illegal for her to post a sign advertising her home as a family day care home before it was licensed. In response, Petitioner informed Ms. Richmond that after the February 27, 2009, licensure inspection, she (Petitioner) had been told that she could put a sign up and start a waiting list of people interested in day care services. After hearing Petitioner's explanation, Ms. Richmond then told Petitioner that "if" she put up a sign prior to licensure, the sign had to "at least" include in bold letters, "License Pending." On March 23, 2009, immediately after addressing the "sign" issue, Ms. Richmond conducted an unannounced or inspection walk-through of Petitioner's home and discussed issues with Petitioner that Ms. Richmond believed were of concern to the Department. During the walk-through, Petitioner advised Ms. Richmond that the "door alarm" had not yet been repaired. Among the issues Ms. Richmond raised and discussed with Petitioner were: (1) the need to install either a pool alarm or portable pool barriers; (2) the pool was not clean and was only partially filled with water; (3) the spa in the backyard needed a cover; (4) the local criminal background check for Petitioner's cousin had not been received. Ms. Richmond described to Petitioner and her husband two options related to the swimming pool--the "portable pool barriers" and a "pool alarm." In describing the "pool alarm," Ms. Richmond indicated that it was a device that was placed in the pool. She further explained that with this type of "pool alarm," if a child fell in the swimming pool, the alarm would sound. Although the alarm on the master bathroom door was not working on March 23, 2009, Petitioner's husband was making efforts to get the door alarm repaired. However, that day, Ms. Richmond told Petitioner and her husband that even if the alarm on the master bathroom door was repaired, they still needed to have an alarm in the pool. In response to this directive, Petitioner agreed that they would install a "pool alarm" in the swimming pool. After completing the March 23, 2009, walk-through, Ms. Richmond informed Petitioner that the items she had discussed needed to be corrected prior to a license being granted. However, no written documentation was provided to Petitioner regarding the areas of non-compliance discussed during the walk-through or inspection. Ms. Richmond returned to Petitioner's home on March 27, 2009, for her second unannounced visit, which was described as a follow-up to her "complaint investigation." Once there, Ms. Richmond observed that the sign advertising the family day care home was still displayed. However, Petitioner's husband came home while Ms. Richmond was there and immediately took down the sign. During the March 27, 2009, unannounced complaint investigation visit, Petitioner told Ms. Richmond that the alarm on the master bathroom door was not working. About that time, Petitioner's husband arrived and told Ms. Richmond that he had purchased a pool alarm and even showed her the alarm. The "pool alarm" was purchased in response to Ms. Richmond's directive during the March 23, 2009, walk-through but had not been put in the pool, because the pool had not yet been cleaned.10 At the end of the March 27, 2009, unannounced visit, Ms. Richmond talked to Petitioner and her husband about the verified abuse/neglect report regarding the April 23, 2006, incident in which their daughter almost drowned. The findings in the report were "verified" for inadequate supervision by Petitioner and her husband. Given the implications of the abuse/neglect report, Ms. Richmond explained that although Petitioner needed to address the areas of non-compliance, the most pressing and immediate concern was the abuse/neglect report. Petitioner's husband testified credibly that during the conversation described in paragraph 23, Ms. Richmond told him and Petitioner that because of the abuse/neglect report, there was "no way" Petitioner would get a family day care home license. Based on that comment, Petitioner and her husband reasonably believed that Petitioner's application would be denied because of the abuse/neglect report. On March 27, 2009, after being told about the abuse/neglect report and the ramifications of that report, Petitioner and her husband "stopped moving forward" on the areas of non-compliance related to the swimming pool (i.e., cleaning the pool and installing the pool alarm).11 Believing the abuse/neglect report would result in denial of her licensure application, Petitioner and her husband began to focus on issues related to the report. They were also concerned and had questions about the Department's licensing process as it related to the abuse/neglect report. Ms. Richmond's third visit to Petitioner's home was on April 7, 2009. The sole purpose of that visit was to answer the "real" questions that Petitioner and her husband had about the abuse/neglect report and the licensing process. Ms. Richmond answered their questions as best she could, but recommended that they schedule an appointment with the licensing supervisor at the licensing office.12 That same day, Petitioner and her husband scheduled a meeting and met with Sheila Nobles, administrator and supervisor for child care licensing, to discuss, ask questions about, and review the abuse/neglect report. On April 8, 2009, Ms. Richmond finalized her "report" on the complaint investigation regarding the sign. Ms. Richmond's notes in the "comment" section of the pre-printed "Notice to Cease and Desist" form described the events of March 20, 23 and 27, 2009, as they related to the sign issue.13 Decision to Deny Application As the family safety counselor responsible for reviewing Petitioner's application and conducting the licensure inspections, Ms. Step recommended to Ms. Nobles that Petitioner's license be denied. Ms. Step's recommendation was based on the verbal reports provided to her by Ms. Richmond, which indicated that the areas of non-compliance on the Inspection Checklist had not been corrected. Prior to making a decision about Petitioner's application, Ms. Nobles reviewed the application file, the abuse/neglect report, the Inspection Checklist and the preliminary review notes. Ms. Nobles testified that she considered the "five different inspections"14 of Petitioner's home and property by the two licensing counselors, the areas of non-compliance that had not been corrected, and the abuse/neglect report with a "verified" finding of inadequate supervision. The Central Abuse Hotline Report Applicants seeking licensure to operate a family day care home are required to undergo a Level II screening. That screening included a check to determine if the applicant had a report in the Central Abuse Hotline. Due to concern for the safety of children, the Department is authorized to deny a family day care home license if the applicant has a verified abuse/neglect report. Because of its concern about the safety of children in Petitioner's care, the Department alleges that the abuse/neglect report revealed during a Central Abuse Hotline search is ground for denying Petitioner's license. As it relates to the abuse/neglect report, the denial letter states in relevant part: The Department has documented a verified abuse neglect report whereby your then 3-year-old daughter was not supervised correctly on June 21, 2006.[sic][15] These actions allowed your child to wonder [sic] outside the family swimming pool were [sic] she was found after an undetermined time under water and not breathing. During the investigation it was determined that the lock to get access [presumably to the pool] had been broken for a few days. The abuse/neglect report was initiated when a call was received by the Central Abuse Hotline on April 23, 2006. According to the intake-report, an incident occurred at Petitioner's and her husband's home in which their then three- year-old daughter ("child") almost drowned. Jermaine Turner, a child protective investigator ("CPI"), was assigned to investigate the incident. As the investigator, CPI Turner was responsible for making contact with the family of the child and other appropriate individuals. During the investigation, CPI Turner worked under the supervision and direction of Terry Lynn Reinhardt, a child protective supervisor. As CPI Turner's supervisor, Ms. Reinhardt had contact with CPI Turner and gave him directives related to follow-up activities on case-related matters. The abuse/neglect report includes a summary of notes which purport to summarize interviews CPI Turner conducted with Petitioner and her husband on May 18, 2006, about a month after the subject incident. Petitioner's husband recalled that this interview was conducted by telephone. Ms. Reinhardt testified that CPI Turner interviewed the child's parents and also made telephone contact with them to follow-up on an issue involving a "broken door." Ms. Reinhardt was not present at the interviews that CPI Turner conducted with Petitioner and her husband. Thus, she had no first-hand knowledge of what, if anything, they said to CPI Turner. Rather, Ms. Reinhardt relied on CPI Turner's verbal reports to her and the notes and summaries in the abuse/neglect report attributed to him. CPI Turner did not testify at this proceeding. Moreover, no competent evidence was presented regarding any entries (i.e., notes, comments, and/or interview summaries) in the abuse/neglect report attributed to CPI Turner. The case was closed on June 21, 2006, and the findings and conclusions in the matter were summarized in a two-page document titled, Investigative Summary. The Investigative Summary includes an "updated" note dated June 6, 2006, that provided: "The child . . . was left to watch cartoons; however, she was found face down in a swimming pool. The lock to get access from the pool to the house had been broke [sic] for approximately two day [sic]. They stated they planned to fix the lock but never got around to it." No evidence was presented as to who made the "updated" note or the source of the information in that note. After the investigation was complete, Ms. Reinhardt concluded that there were "some indicators" of maltreatment, asphyxiation, and verified findings of inadequate supervision as to both parents. In reaching that conclusion, Ms. Reinhardt relied on information provided by Mr. Turner and then applied the Department's CFOP 175-28 in reaching those conclusions. Florida Administrative Code Rule 65C-30.001(6) incorporates by reference the "Allegation Matrix" set forth in the Department's CFOP 175-28. Pursuant to that rule, the "Allegation Matrix" is a document that defines specific types of abuse, neglect or abandonment; guides staff in determining whether abuse, neglect or abandonment has occurred; and assists in ensuring that all factors are considered when assessing each type of maltreatment. The Department's CFOP 175-28 was not offered into evidence during this proceeding. Based on the conclusion reached by Ms. Reinhardt, the abuse/neglect report was closed on June 21, 2006, with the finding of some indicators of maltreatment, asphyxiation, and verified findings of inadequate supervision. Notwithstanding those findings, the Investigative Summary reflects that there was no prior history of abuse or neglect and no criminal history. Moreover, the Investigative Summary indicated that no intervention services were needed, no placement outside the home was required, and no judicial action was required. Finally, Petitioner and her husband were not given any safety plan to implement. The April 23, 2006, incident was also investigated by the Polk County Sheriff's Office ("Sheriff's Office"). That investigation included at least two or three detectives and/or officers taking and tape recording sworn statements from Petitioner, her husband, and her father-in-law. All of these sworn statements were "in-person" interviews taken within 24 hours of the incident. Petitioner's husband testified credibly that the written summaries of the sworn statements taken by the Sheriff's Office detectives, particularly that of Detective Wharton, accurately reflect not only the substance of the interviews, but also what actually occurred on April 23, 2006. Petitioner's husband testified credibly about the facts related to the April 23, 2006, incident and the accuracy of written summaries of the tape-recorded sworn statements taken by detectives as set forth below in paragraphs 51 through 60. On April 23, 2006, Petitioner was in the family pool with her then three-year-old daughter. While Petitioner and her daughter were in the pool, Petitioner's husband and his father arrived at the house. Petitioner then went into the house to prepare dinner and her husband stayed at the pool with the child. Shortly thereafter, Petitioner's husband removed the child from the pool, took off the floatation device the child was wearing while in the pool, took her into the house, and then closed and locked the bottom lock of the door. Once in the house, Mr. Best put on a movie for his daughter in her bedroom and then told his wife that the child was in the room watching a movie. The child left the bedroom and went to the kitchen where her mother was preparing dinner. For some time, the child went back and forth between the kitchen, playing near her mother and/or "helping" her mother, and the living room where she (the child) was sitting on the floor watching cartoons on television. The kitchen and living room were adjacent rooms with a large opening between them which allowed a person in one room to see into the other room. When Mr. Best and his daughter went into the house, his father (the child's grandfather) was taking a shower. A few minutes later, after taking his shower and getting dressed, the child's paternal grandfather got out his new video camera and went to the kitchen/living room area to videotape his granddaughter while she was playing. He videotaped her playing for several minutes and then went to the bedroom to put away the video camera. It took the child's grandfather about two or three minutes to put away his video camera and return to the kitchen area. When the grandfather returned to the kitchen/living room area, he asked Petitioner where the child was. Believing the child was in the living room, Petitioner told her father-in-law that the child was in the living room looking at television. Petitioner then went into the living room to look for the child and discovered she was not there. Petitioner then immediately went outside to the patio and saw the child laying face down in the pool. Petitioner screamed for help, jumped in the pool and lifted the child from the water. Petitioner's husband was close enough to the kitchen/living room area that he heard the exchange between his father and Petitioner about the child's whereabouts and Petitioner's subsequent scream. Within a few seconds, Petitioner's husband ran from the house, jumped in the pool, removed his daughter from the pool, and placed her on the pool deck. Once the child was on the pool deck, the child's father and her grandfather immediately began administering CPR while Petitioner called 911. They continued performing CPR on the child until the emergency medical services and the fire department arrived on the scene. Both parents reported to detectives investigating the incident that the child knew how to open and unlock doors. Based on the facts established at or near the time of the incident, it was concluded that the child slipped out of the house and went undetected for about two or three minutes. Petitioner and her husband described the child's "slipping out of the house" as unusual and something she had never done prior to April 23, 2006. Until that day, the child had never gone off on her own and had been fearful of and never gotten into the swimming pool at that house. (Petitioner and her family had moved to this house only two or three months before the incident.) Based on its investigation, which included sworn statements by Petitioner, her husband, and her father-in-law, the Sheriff's Office concluded that the April 23, 2006, incident was an accident. The Department does not disagree with the conclusion reached by the Sheriff's Office (i.e., the April 23, 2006, incident was an accident). Nevertheless, according to Ms. Reinhardt, irrespective of whether the incident was an accident or done on purpose, the Department still found "verified" indicators of inadequate supervision, because the child got out of the house and into the pool and almost drowned. The factual allegations in the report upon which the Department relied were not established by competent and substantial evidence. In absence of such evidence, the Department's verified finding of inadequate supervision has not been proven. The record in this case is devoid of any evidence to establish the Department's finding of any indicators of maltreatment. Therefore, the Department's findings that there were "some" indicators of maltreatment has not been proven. Alarm on the Master Bathroom Door The Department alleges that during the applicable time period, the swimming pool at Petitioner's home did not comply with the requirements in Florida Administrative Code Rule 65C-20.010(1)(i). That rule requires that swimming pools at least one-foot-deep have either a barrier at least four-feet- high around the pool, separating the pool from the house, or a pool alarm that is operable at all times when children are in their care. There was conflicting and inconsistent information provided to Petitioner as to whether a "pool alarm" that floats in the swimming pool was required instead of a door alarm, which is also apparently referred to as a pool alarm. Despite any confusion that may have been caused by the different representations made to Petitioner, it is undisputed that the preliminary review notes and the Inspection Checklist clearly indicate that Petitioner was required to repair the alarm on the master bathroom door which led to the pool. It appears that Florida Administrative Code Rule 65C-20.010(1)(i) refers to door alarms as pool alarms. Petitioner's husband testified credibly that he attempted to have the door repaired by service personnel of the alarm company that installed the alarm system, but has been unsuccessful in doing so. In light of these futile attempts, Petitioner's husband purchased a battery-operated door. However, it is unknown when the battery-operated door was purchased, whether it has been installed, and, if so, how it works. The alarm on the door of the master bathroom had not been repaired by the April 3, 2009, "due date" or any time thereafter, nor had any acceptable alternatives been installed. Maintenance of the Swimming Pool The Department alleges that the swimming pool at Petitioner's home was not clean and maintained as required by Florida Administrative Code Rule 65C-20.010(1)(j). That Rule requires that if a family day care home uses a swimming pool, it shall be maintained by using chlorine and other suitable chemicals. Petitioner acknowledges that, at all times relevant hereto, the swimming pool at her home was not clean and properly maintained. Some time after the denial letter was issued, Petitioner's swimming pool was emptied, a full-processed cleaning was completed, and the pool was filled with water. However, a leak in a light in the pool was discovered. In order to repair that leak, the pool had to be emptied. At the time of this proceeding, the leak was being repaired. Once the leak is fixed, the pool can be filled with water and the "pool alarm" that floats in the pool can be installed. Local Law Enforcement Background Check The application process requires that each person living in the home that will serve as the family day care home have a background screening. Such background screening includes a check by the Federal Bureau of Investigation ("FBI"), the Florida Department of Law Enforcement (FDLE"), and a local criminal history check. In February 2009, Petitioner's cousin, Carlos Granados, was living with Petitioner and her husband. Accordingly, Mr. Granados was required to have a local criminal history check, and a copy of that criminal history check was to be provided to the Department. Petitioner testified credibly that she submitted all the documents for completion of Mr. Granados' background checks and could not explain why the Department did not receive the local criminal history check for Mr. Granados.16 The evidence established that Mr. Granados no longer lives in Petitioner's home. Therefore, the Department does not need, and is not required to have, a local criminal history check for him.
Recommendation Based on the foregoing Finding of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Department of Children and Family Services, enter a final order: (1) finding that Petitioner, Best Family Day Care Home, failed to meet the standards in Florida Administrative Code Rule 65C-20.010(1)(i) and (j); and (2) denying Petitioner's application for a family day care home on those grounds. DONE AND ENTERED this 9th day of February, 2010, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of February, 2010.
The Issue The issue for consideration in this matter is whether Petitioner should be granted an exemption from disqualification to serve as a foster parent because of the matters alleged in the Department's letter of denial dated June 7, 1996.
Findings Of Fact At all times relevant to the issues herein, the Department of Health and Rehabilitative Services was the state agency responsible for the licensing of, inter alia, foster homes and foster parents in Florida, and for the granting of expemptions from disqualification for licensing for persons who otherwise would net be eligible for licesning due to prior misconduct. Petitioner, Robert Mallan, was convicted in Circuit Court in Hillsborough County of kidnapping and grand theft - 3rd degree, on November 12, 1991. The kidnapping related to the ten year old son of the boyfriend of a female friend of the Petitioner, Ms. Lilly. While admitting his participation and liability for the incident, Petitioner contends that the boy was taken by the young lady in an effort to exact revenge against her lover, the boy's father, for abusing her and to scare him so he would not touch her aqain. Petitioner's part, he asserts, was to rent the motel room where the child was taken for the woman and her accomplice sister, and when the plot began to fall apart, the two women implicated him. Ms. Lilly's testimony in a deposition given in August, 1991, prior to the criminal trial, paint a far more sinister participation by the Petitioner. Regardless of the motive for the act, Petitioner was found guilty of the offenses alleged, including the grand theft charge, and because some members of the jury hearing his case recommended clemency, he was sentenced as a youthful offender and was incarcerated for approximately eighteen months as a result thereof. Petitioner's wife, Jennifer Mallan, met and developed a relationship with two children in February, 1992. These children, the two S. boys, were the natural children of Johnnie Marie Roye, whose parental rights have been terminated. Desiring to take care of the children, Ms. Mallan undertook training as a foster parent through the Family Enrichment Center in Hillsborough County which trains, educates and assesses potential operators of foster homes for licensure. Ms. Mallan's home was subsequently licensed as a foster home in October 1994, prior to her marriage to the Petitioner, and became the foster home to the two S. boys. Petitioner met the children in August 1992, well before he and Jennifer were married, and he developed a good relationship with them. Once Ms. Mallan married the Petitioner, it becamae necessary for him to receive the foster parent training as well in order for the two S. boys to remain in the Mallan home. Therefore, as a part of the paper work incidental to his licensure, which, according to Ms. Wiliams, the Executive Director of the FEC, consisted of approximately twenty separate documents, Mr. Mallan filled out the form to initiate a background check. This check when completed in December 1994, revealed no record of any conviction. For some reason, however, a second background check, to include fingerprints, was required in the latter part of 1995. Incidental to that check, Petitioner filled out an Affidavit of Good Moral Character in September 5, 1995 on which, under penalty of perjury, he attested that he had not been found guilty of any of the criminal violations listed thereon, including kidnapping under Section 784.01, Florida Statutes. This affidavit is generally prepared by the trainee, under the supervision of the trainer, Ms. Davis, in conjunction with a training session. In this case, because Mr. Mallan had indicated he would not be available to attend training sessions on Thursdays, (one half the course), Ms. Williams cannot be sure whether he receive the standard verbal instructions given to applicants that they shyould not try to hide anything in their backgrounds. However, both Ms. Williams and Ms. Davis gave all the trainees their home phone numbers and offered to help in the prepartion of the documents after hours. Neither lady was contacted by Respondent with questions about any of the documents. Petitioner signed the affidavit at the spot provided therefore on the back of the form where someone had placed an "X". The form is self-explanatory and easy to read. Alicia Miller, the licensing worker at the Family Enrichment Center,who helped Ms. Mallan obtain her foster care license, and who was also helping Petitioner to obtain his, claims she explained the contents of the affidavit to him during the one and a hours she spent at his place of employment going over the forms with him, and he did not request an explanation of the affidavit form. Others who took the FEC's foster parent training, including Steven Link and Noel Perez, filled out the same affidavit and neither had any trouble comprehending the language on the form. Mr. Link indicates they were given many forms to fill out, some of which were read by the teacher. Others were self-explanatory. Not all the forms were given out on the same night. The results of the second background investigation revealed Petitioner had a conviction for kidnapping. This information was discovered by James Thomas, the background screening unit coordinator for the Department, who in turn informed Alicia Miller of the fact and that that conviction disqualified Petitioner from obtaining clearance as a caretaker for children. Ms. Miller passed this information on to Mr. Mallan who requested an exemption. All foster parents must be screened for violations of the law, some of which may disqualify a person from serving as a caretaker of children or from obtaining a foster caer license. When a person is disqualified because of a particular violation, that individual must seek an exemption from the agency before he or she can be licensed. A hearing was held on this request on May 10, 1996, In addition to his oral presentation, Mr. Mallan also provided the agency with numerous reference letters from people in the community who have known his through his church involvement. The informal exepmtion hearing of May 10, 1996 was attended by Mr. Thomas, Don McNair, the operations management consultant who specializes in the licensing of shelter and foster homes, Mr. and Mrs. Mallan, Alicia Miller, Randy White and Mark katherin Moers. As a result of this hearing, on May 20, 1996 the agency advised Mr. Mallan by letter that his request for exemption had been denied. The reason given for the denial was that Mr. Mallan did not show adequate remorse for his actions in kidnapping the child taken nor was he sufficiently forthright in explaining his involvement in the crime. Before recommending denial of Petitioner's request for exemption, Mr. Thomas reviewed the court records relating to the kidn apping charge and concluded that Mr. Mallan's version of the crime at the exemption hearing was not consistent with what was shown in the records. Mr. Mallan's story tended to indicate his involvement in the actual kidnapping was minimal, but an investigator from the Hillsborough County Sheriff's Office, who participated in the investigation of the crime, indicated that was not so. After the committee which heard Petitioner's request for examption met and recommended denial of the exemption, Mr. Mallan requested a second exemption hearing at which he could present his reasons for granting the exemption. Though such a hearing is not normally granted, at the direction of the District Administrator, Mr. Taylor, Mr. Mallan was granted a second exemption hearing at which he could discuss the progress he has made since his imprisonment. At this second hearing, held on May 31, 1996, Petitioner was heard by Harriet Scott, a district program manager; Mr. Thomas; and Mr. McBride, an agency licensing supervisor. The District Administrator, Mr. Taylor, also sat in for a part of the hearing but did not ask any questions of Mr. Mallan. During this second hearing, Petitioner claimed he was "railroaded" at his criminal trial by the prosecution and his two co-defendants, Ms. Lilly and Ms. Parmenter. When asked why he had a gun in his possession at the time of the kidnapping, Mr. Mallan explained he was going to use the gun to committ suicide and denied he used it during the commission of the kidnapping. However, when he was arrested by a Leon County Deputy Sheriff in a Tallahassee motel, he made several inconsistent statements regarding the location of the weapon. At the time of his arrest, he was dressed in a tuxedo and waiting for his girlfriend, now his wife, to pick him up to atten a formal sorority function. The decision to deny Petitioner's request for edxemption from disqualification was a difficult one for the committee to make. The evidence indicates that the two S. boys have been doing well in the care of Mr. and Mrs. mallan and want to return to their home. However, the initial decision to deny the request was made by Mr. Taylor, the District Administrator. Both members of the first committee appointed to review the case recommended denial of the request, and Mr. Taylor agreed only after reading all materials furnished to him by the committee. Several days after the denial letter was sent out, Mrs. Mallan called Mr. Taylor and before he could respond, Mr. Mallan also called to express his concern over the denial, indicating he did not feel he had been given a chance to present his full story. Based on this, and on the fact that Mr. Taylor had some additional questions to ask of the Petitioner, the second hearing was granted. Mr. Taylor classifies this case as one of the 4 or 5 most difficult decisions and the most difficult exemption decision he has had to make during his tenure as District Administrator. His concerns, which ultimately culminated in his decision to deny exemption, were: He did not feel Petitioner was entirely truthful at his first hearing and was evasive and misleading in the information given to the FEC. Petitioner did not express any remorse for his actions. During the period Mr. Taylor sat in during the second exemption hearing, Petitioner appeared almost arrogant and defiant in his approach to the committee. Taylor did not feel Petitioner accepted responmsibility for his actions. Throughout the hearing, Petitioner denied, minimalized and trivialized what he had done and consistently tried to place the blame on others. Many of the concerns expressed by Mr. Taylor were also felt by other committe members such as Ms. Scott. She, too, had the feeling that Petitioner was dissembling and not telling the whole truth. She concluded that the five years which had passed since the conviction was not enough time for Petitioner to be rehabilitated. Once the second hearing was over, Mr. Taylor had no doubts as to those factors cited in the paragraph next above, but he had great concern for the two children involved. He had to weigh these concerns. Before making his final decision, Mr. Taylor read and accepted as sincere all the letters sent in by Petitioner's friends and supporters. Mr. Taylor has no doubt that Petitioner is recognized as having done considerable good in the community, but all this has a hollow core, and without sincere remorse, the rest does not ring true for him. To Mr. Taylor the issue was not whether the two children in issue had a good home or whether Petitioner has done good, but whether Petitioner has been sufficiently rehabilitated, and based on what he has observed, Mr. Taylor concluded Petitioner has not. None of the staff of the Family Enrichment Center, including Olga Williams, the Director, Delores Davis, a training coordinator and teacher of the the Model Approach to parenting and Pertnership (MAPP) classes, or Alicia Miller, all of whom knew the Mallans through contact at the FEC, were ever informed prior to the marriage that Jennifer was going to marry Petitioner, nor were they informed by either that Petitioner had been convicted of kidnapping. Mr. Mallan is currently employed by the South Tampa Christian Center, (STCC), where he and his wife are members. He has been involved in community volunteer work since his release from prison. He is an active participant in a church program called "Conquering Force" in which he speaks to inner city children to convince them that the decisions they make today will affect their future. Though in these talks he has admitted to a prior conviction and incarceration, he has never discussed in detail with any audience the nature of his offense and the circumstances surrounding it. In addition to his work at STCC, Mr. Mallan has volunteered and worked at other community organizations which serve children's needs. It appears from Mrs. Mallan's recounting of the relationship amongst herself, Petitioner and the two S. boys has been quite good. When she and Petitioner decided to marry, and she realized both she and he would have to be liecensed as foster parents, she claims she advised the Department of Petitioner's conviction and also advised her MAPP teacher, asking if it would be worthwhile to continue with the trainin in light thereof. She claims to also have told Ms. Miller who, she relates, also told her the conviction would not be a problem so long as Petitioner has been clean since his release from prison. Once they were married, she contends, they both advised the relevant agency authorities of his conviction. Ms. Mallan contends that Petitioner should receive an exemption b ecause since he got out of prison he has lived rehabilitation for himself and others. He works with children to help and assist in decision making. He has never shown anything contrary to rehabilitation ahd wants to have a positive influence on youth. To her knowledge, parents of the children with whom he comes into contact are grateful for the time and efforts he has expended in Florida, nationally and internationally. Mr. Mallan became a Christian two weeks after he went to prison. He immediately worked in the chapel and has never backslid, but has been consistent and committed since he gave his life to the Lord. Mrs. Mallan disagrees with the Department's conclusion that Petitioner is not remorseful over what he did. She has heard him publicly speak about it and he has contacted the victim's father to see that the boy is all right. Petitioner's good wirk is noted by Henry Blanton who served on a committe for a crime forum for the Boy Scouts which was made up of judges, police officials and others related to law enforcement and at which Petitioner was involved. Mr. Blanton had known Petitioner for several years and saw what he was doing for youth, and asked him to get involved. Mr. Blanton's son has been involved with the petitioner through church activities and feels he knows Petitioner quite well. Mr. Blanton is aware of Petitioner's record from Petitioner's public recounting of it as a part of his ministry, and is shocked by the Department's position that Petitioner has not been rehabilitated. Blanton is unequivocally convinced that Petitioner has been rehabilitated and has done much for young people in the community. In Blanton's words, Petitioner "should be commended for what he has done - not castigated and raked over the coals." Tough he his aware of Petitioner's conviction for kidnapping, Mr. Blanton is not aware of the details. As he recalls, Petitioner has referred to the kidnapping as a "prank." Mr. Blanton knows nothing bad about the Petitioner other than his conviction and is not aware of any drug or grand theft charges. He also was not aware that Petitioner was not honest on his affidavit of good moral character, and feels that lying is not evidence of good moral character. Several other responsible individuals were convinced of Petitioner's worth, having heard of his incarceration through their relationship with him. None was advised of the reason for his imprisonment, however. Nevertheless, all, including a marital counselor and a school community specialist, believe Petitioner is committed to a Christian lifestyle and to God. Mrs. Mallam's uncle, a Hillsborough County Circuit Judge, has known Petitioner for about five years, before the trial and incarceration. He cannot say whether Petitioner has changed because he did not know Petitioner well before his imprisonment. In the Judge's opinion, it is hard to measure rehabilitation, but he seems to have seen a change in the Petitioner's life style which makes him moere committed to the improvement of youth. Petitioner never denied his crime to this Judge nor did he try to minimize them, but he also never brought the subject up and the Judge never questioned Petitioner about it. All of the responsible individuals such as teachers and school administrtors who have been in contact with the two S. boys attest that they have done well living with the Petitioner and his wife. Pastor Randy White of STCC first met the Petitioner right after Mr. Mallan was released from prison. At that time, Petitioner was dating Ms. Mallan and wanted to attend his church. For over a year therafter, Petitioner did community service for the church as a part of his probation. He told the pastor he had b een convicted of kidnapping and grand theft and appeared to be remourseful, neither denying nor minimalizing his offenses. After he completed his period of community service, Petitioner came on staff at the church as outreach director. He performed well and was offeded the position of youth pastor in which capacity he is still employed. In the words of Pastor White, Petitioner has done a "tremendous" job. Churches from all over the country have contacted him seeking to hire him. Both pastor White and the church sponsored Petitioner in a one year "Master pastor" intern program which gave him thirty college credits. Petitioner successfully completed the program. Pastor White has no reservations about Petitioner's rehabilitation or that he is a productive member of society. Petitioner has now beenb ordained as a minister and has all the qualities of a minister. In Pastor White's opinion, Petitioner has a stable marriage to a woman who is involved in his ministry and woulod not turn to crime. Recognizing that truth is a part of rehabilitation, Pastor White believed also that an intentional misrepresentation is evidence of bad character. He is aware of Petitioner's reference to his misdeed as a "prank", but also contends that Petitioner told him he had told the Department's representatives of his criminal record. Pastor White has no reason to doubt Petitioner on any level. In that regard, Petitioner counselled with Paul Hollis, the Director of Counseling for STCC in the Fall of 1992. Petitioner wanted to make sure thee was nothing in his background to cause a problem for the church. In the course of the counselling, petitioner gave a full account of his criminal conviction and the details involved. He was very open and did not try to conceal anything. As a rsult of their sessions, Mr. Hollis felt that Petitioner was remorseful and anxious to insure that what happened in his past would never happen again. At that time, Mr. Hollis felt Petitioner was already rehabilitated and nothing has occurred since to cause him to have a question as to Petitioner's rehabilitation. In fact, Petitioner is now helping to rehabilitate others. Arlene Freed-Vest, Petitioner's probation officer for the fourteen months he was on probation after his release from approximately nine months in prison, supervised him closely during the period of community service he performed upon his release. Petitioner had initially been placed on three and a half years of probation, but she recommended early termination of probation based on her satisfaction he was rehabilitated. This determination was based on a review of his entire file from confinement on and she was satisfied he had received all the benefits he could from prob ation and would not benefit from it further. She concluded that Petitioner took responsibility for his actions and has shown continuing remorse. The fact that he has tried to get on with his life does not mean he is not owning up to his offense.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Health and Rehabilitative Services enter a final order granting Robert Mallan an exemption from disqualification from residing in a licensed foster home. DONE and ENTERED this 13th day of February, 1996, in Tallahassee, Florida. ARNOLD H. POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 13th day of February, 1996. COPIES FURNISHED: Elizabeth M. Hapner, Esquire 101 South Franklin Street, Suite 100 Tampa, Florida 33602 Josefina M. Tomayo, Esquire Jennifer S. Lima, Esquire Department of Health and Rehabilitative Services District 6 Legal Office 4000 West Dr. M. L. King, Jr. Boulevard Tampa, Florida 33614 Gergory D. Venz, Agency Clerk Department of Health and Rehabilitative Services 1317 Winewood boulevard Building 2, Room 204-X Tallahassee, Florida 32399-07600 Richard Doran General Counsel Department of Health and Rehabilitative Services 1317 Winewood Boulevard, Room 204 Tallahassee, Florida 32399-0700
The Issue The issue for consideration in this hearing is whether Respondent's License as a Marriage and Family Therapist in Florida should be disciplined because of the matters alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Board of Clinical Social Work, Marriage and Family Therapy, and Mental Health Counseling (Board), was the state agency responsible for the licensing of Marriage and Family Therapists and the regulation of that profession in Florida. Respondent was licensed by the Board as a Marriage and Family Therapist in Florida holding license number MT0001128. P. S., a 56-year-old married, material control associate for Verizon, was introduced to the Respondent at the 34th Street Church of God, her church, by the Pastor, Reverend Scott, in the early 1990's. She began to see the Respondent professionally in individual sessions at least once a week at that time because her psychiatrist had recommended she see a marriage and family therapist after she had been hospitalized for mental health problems approximately five times. Before she began her sessions with the Respondent, P. S. had never been in individual counseling except with her psychiatrist for testing and medications. Her psychiatrist had diagnosed her with depression, as did the Respondent, and she is currently in therapy seeing a therapist every two months or so. This therapist has also diagnosed her as suffering from depression. He has also diagnosed sexual dysfunction. While she was in counseling with the Respondent, P. S. would also periodically see her psychiatrist who had prescribed Prosac, Tofonel, Zanax, and other medications for her. She remained in counseling with the Respondent for at least four years, and during that period, her medications were mixed. Old ones were discontinued and restarted, and new ones were started and discontinued. She remembers that she was on Prosac, Tofonel, and Elavil prior to commencing sessions with the Respondent. She is not currently on any medications. The issues P. S. discussed with Respondent primarily dealt with her depression and with family problems. She told Respondent of her prior hospitalizations and believes she gave him her medical records, but cannot be sure whether she told him of the diagnoses. She told him of her abuse as a child and he told her that was a part of her problem. Respondent suggested cognitive therapy to her, which he described as changing how she saw things. He incorporated relaxation therapy into her plan of treatment, showing her techniques to achieve this. When she was in Respondent's office she would sit either on the sofa or a bed lounger, and he would sit at his desk, rolling over to the bed lounger on which she was reclined on his wheeled chair from time to time. At no time would she ever lie down on the sofa. As P. S. recalls, all counseling sessions, except for a few which took place when she was hospitalized, were held in his office in Temple Terrace. P. S. contends Respondent's relaxation techniques included her relaxing her lips and massage during which he touched her face, her breasts, her feet, her legs, and her vaginal area. Sometimes she was clothed, she relates, and sometime she was not fully clothed. When she was not fully clothed, she says, it was mostly her top that was removed, but sometimes it was her bottom. She claims, as well, that on several occasions, no more than two or three, she was fully unclothed. P. S. also contends Respondent had told her she was ashamed of her body and encouraged her to take off her clothes to "integrate" -- get in touch with her feelings and her body. P. S. also admits that at times she hugged Respondent and touched his penis. She is unable to remember how this came about, but she thinks he asked her to do this. As she recalls, he said she should not be ashamed of her body. During the sessions she had with Respondent, P. S. discussed her relationship with her husband and with a friend she had had prior to marriage. She told him of comments men had made to her -- compliments which she did not know how to accept. She also spoke with him about being abused when she was a child and her relationships with siblings -- one sister in particular. Most of the sessions P. S. had with Respondent were one-on-one. At some however, she was accompanied by her sister, and on two occasions, her husband came to discuss with Respondent his therapy methods. On those occasions, Respondent denied any wrong doing. When Respondent would touch her, P. S. was usually lying on the bed lounger, though he also did so, she claims, at times when she was standing. If she was not comfortable with his touching of her breasts or other body parts, he would merely hug her. She claims, as well, that he would have her touch herself on her lips, her breast, and her vaginal area. She would do this both in his office and when at home alone. She contends this made her uncomfortable, but he explained to her it was a part of her therapy -- to help her get in touch with her body. P. S. admits, however, that she engaged in sessions of mutual masturbation with Respondent's sister-in- law at home on occasions. P. S. also went to support groups, one of which was an incest support group. In this regard, she would discuss her feelings about her husband with Respondent and brought up comments people would make about her. She discussed her counseling with Respondent with the support group and with other patients and therapists, asking about the method of therapy he was using and whether it was correct or not. When Respondent found out about this he dismissed her as a patient twice, taking her back each time. Though she did not go into gross detail with the others with whom she discussed Respondent's therapy, she concluded most felt his actions were inappropriate, and one therapist threatened to report Respondent if his name were disclosed. According to P. S., Respondent's touching of her began shortly after she started her sessions with him, and she was uncomfortable with them. Though his hugs initially were around the shoulder, she claims they became more intense with full body contact. The massages started about six months after she began the sessions after she called him to tell him she was uncomfortable. When she did this, he would stop for a while, but she asserts, the touching would start up again. P. S. indicates she had mixed feelings about Respondent. She liked him at times and spoke freely with him. Those positive feelings had a romantic tone to them, and when she told him about it, he told her it was "transference of feelings." Though, she claims, the touching made her uncomfortable and she would, at times, see other therapists, she felt guilty about leaving Respondent's care. She contends that when she discussed leaving he would express feelings of rejection and said he felt he had helped her. His sister-in- law also made her feel guilty when she discussed leaving Respondent's care. In addition to office visits, P. S. also saw Respondent at church, at his home, and at the homes of his family members with whom she was friendly, and whenever he would introduce her to other people, he did not refer to her as a patient. At one point in the relationship, she gave him photographs of herself, though she claims these were to show "before" and "after" depictions and not for romantic keepsakes. P. S. was active in her church activities all through this period and so was the Respondent. She was mostly involved in youth activities and in the women's ministry. Respondent was a minister at the church but not the main pastor. Though he preached periodically, he mostly counseled. During the period she was in counseling with Respondent, P. S. was hospitalized several times. One occasion was based on her taking an overdose of a drug; one was because of her strained relationship with her sister; and others when she could see she needed more intense help than Respondent could provide. The last time she was hospitalized the facility was out of state, and when she discussed this with the Respondent, he was supportive of her efforts. Because she believed that Respondent had been instrumental in her being relieved as head of her church organization in favor of his sister-in-law, P. S. stopped counseling with him in early 1995. At that time she sent him several letters, some of which were unsigned. One letter dealt with her belief Respondent had shared the details of his counseling of her with Pastor Scott; one dealt with her relationship with his sister-in-law; one accused him of recommending her dismissal from the women's ministry position she held; and at least one letter dealt with his therapy, though not in detail. In February 1995, P. S. wrote another letter to Respondent, claiming she was capable of doing her church-work tasks; discussing what another patient had told her of that individual's therapy; and relating her feelings regarding his therapy and what she considered his sexual abuse of her while in therapy. P. S. also discussed her counseling sessions with Respondent in detail with Pastor Scott. She also wrote him a letter explaining the therapy, and upon receipt of that letter, Pastor Scott called her and told her to do what she had to do about it. P. S. has not been hospitalized since 1994, and she is not currently on any medications. She is currently, and since 1995, has been under treatment with Dr. Logan, who is seeing her for monthly sessions. She started with Dr. Logan while still seeing Respondent and initially asked her about Respondent's therapy. Notwithstanding, she continued to see Respondent. At the time she was also seeing another therapist named Phillips with whom she discussed Respondent's therapy. Phillips indicated she had other patients with the same complaint, but no additional evidence on that matter was forthcoming. P. S. admits to having strong feelings, both good and bad, about her relationships with men. Sometimes she found them despicable, and as a result of these relationships she developed a strong distrust of men. In July 1993, while still under Respondent's care, P. S. wrote down thoughts indicating she often developed a strong dislike for most men which bordered on hate. During these periods she would try to convince others how horrible men are. She also developed a problem with her sister and distrusted her as well. The problem with her sister stemmed from childhood when she was abused by the sister's father who was not P. S.'s father. Her feelings about Respondent were ambivalent; sometimes she liked him and other times she did not. She visited his home several times for church functions during her treatment at which times his wife and daughter, as well as other family members, were there. Respondent's sister-in-law, Ardell, defended Respondent when P. S. told her of his actions, telling her he was just trying to help her. They were close at one time, even progressing to a physical relationship, but their relationship deteriorated when Ardell replaced her as head of the women's ministry at church. P. S. blamed Respondent for much of this and it played a part in her termination of treatment with him. During her hospitalization at University Hospital, P. S. did not report Respondent's actions even though she was visited there by Dr. Ruiz, her psychiatrist, Dr. Logan, her therapist, and a staff psychiatrist. She claims to have told the incest abuse group at Charter Hospital about it but can't recall when this was. She also discussed his misconduct with her support group at Ridgeview Hospital in Georgia toward the end of their relationship. Nevertheless, when asked upon release who she wanted to see for continuing therapy, she included Respondent. P. S. claims that at one point during their professional relationship she told Respondent she was developing amorous feelings for him. He did not, however, suggest the relationship be terminated nor did he suggest she see another therapist. On another occasion, at a point where she was having misgivings about his methods, she asked him for a list of potential other therapists, but did not do anything about it. In fact, she has referred other patients to Respondent while she was in therapy with him; probably, she believes, even after his alleged misconduct with her started. In the letter she subsequently wrote to the Board regarding Respondent's actions with her, she alleged his misconduct started within six months or less of her initial visit to his office. In April, 1993, P. S. started seeing Dr. Sandra Logan, a psychologist, initially for job stress. She told the doctor she had been seeing another therapist but she cannot be sure if she mentioned Respondent by name. At that time, P. S. wanted to transfer into another job with the company and discussed her job- related problems, but she also discussed other problems with her as well. Dr. Logan first met with P. S. on April 13, 1993, at the GTE family health clinic where she worked. P. S. reported she had been in treatment for depression since 1988 and was under the care of a psychiatrist, Dr. Ruiz. Dr. Logan put P. S. in a group for therapy. The group sessions were over after six weeks, and Dr. Logan did not see P. S. again until February 1994. At that time, P. S. said she had been seeing Respondent and wanted to change, but because Logan was white, P. S. could not be sure she could trust her. As a result, Dr. Logan recommended an African-American therapist. P. S. again came to Dr. Logan for work-related stress on January 24, 1995. At that time, Dr. Logan put her on medical leave, and she was then hospitalized at Ridgeview. Dr. Logan again saw P. S. in February and April 1995. On the former visit, P. S. started talking about her relationship with Respondent, but nothing significant was reported. P. S. came into the clinic sporadically until 1998 when she started to come in again on a regular basis with issues regarding her family. When P. S. finally reported her allegations regarding Respondent to Dr. Logan, the latter recommended she send in a complaint. At that point, Dr. Logan felt the allegations were credible and not the result of delusions. P. S. had had only one incident of a delusion, and that was work related. P. S.'s husband, also hospitalized several times for depression, relates that P. S. entered her first period of hospitalization after their marriage. He contends, however, that even when suffering from bouts of depression, her memory was not affected. She often spoke with him of her therapy with Respondent, indicating she was not comfortable with some of the things Respondent was doing, such as inappropriate touching of her sexual parts which, she contended, happened several times. However, since she indicated it was a part of the therapy and since he wanted her to improve, he accepted that. Finally, after several years of this therapy, Mr. S. and P. S. met with Respondent about what was allegedly happening in the therapy sessions. When the meeting was set up, Mr. S. thought only the three of them would be involved, but when they got to Respondent's office, a fourth party was present. During this meeting, they discussed Respondent's method of therapy. Respondent did not go into details of what he did during the sessions, but he categorically denied P. S.'s allegations and would not discuss the issue. P. S. stayed in treatment with the Respondent for a short while after this meeting but remained uncomfortable with the process. She continued, however, when Respondent assured her he was providing therapy. Dr. Deborah Frank, a certified sex therapist possessing a doctorate in marriage and family therapy, is familiar with the state rules and regulations governing the practice of family therapy and with the effects of the various medications used therein. She reviewed the investigative file in this matter and was present during the testimony of P. S. According to Dr. Frank, cognitive therapy is used frequently in the treatment of depression. It helps the patient see that not all is bad -- that there are ways for the patient to see themselves so as to find good within himself, herself, or the situation. This is done through verbal discussion and through the patient's keeping a journal of negative versus positive thoughts. There are also other counseling technologies such as task setting and exercises which suggest ways for patients to take charge of their life. The degree of depression impacts on which methodology is chosen. Extreme depression may leave the patients so tired they can do no more than follow advice. Cognitive therapy is sometimes used in the treatment of depression resulting from abuse of the victim. Sex therapy allows the patient to feel comfortable with his or her own sexuality. This can be done by talking with the patient and their partner and is used to treat issues arising out of childhood sexual abuse. A woman who was abused as a child tends to sexualize later relationships as indicating acceptance and affection. There is also hate and anger as a result of the abuse which can be carried over to adulthood and relationships with men. In Dr. Frank's opinion, P. S.'s attitude is typical of that. Outcomes of sexual abuse as a child include depression and a lack of self worth; a feeling in the abused that she is dirty and sex is dirty; and a lack of trust manifesting itself in sexual dysfunction. Relaxation techniques can help a patient suffering from sexual dysfunction. Different techniques include imaging, deep breathing exercises, confrontation, and massage, but the latter is inappropriate for a victim of sexual abuse. If massage is used with someone other than a depressed individual or a victim of abuse, it may set up a relationship that the patient misinterprets and result in development of feelings for the therapist (transference). In such a case, the therapist must set boundaries and convince the patient that he is not a valid love object. If and when it becomes apparent that transference has taken place, it is wrong to continue to have physical contact with the patient. Some physical contact, such as a hug, is acceptable if it is a therapeutic hug. Even this, however, can be dangerous in some cases, and it is up to the therapist to know this and when any physical contact is contraindicated. According to Dr. Frank, all of the areas that Respondent touched on P. S. were wrong in this case -- even the face -- because of her proclivity to misinterpret. This is even more so when the client is not comfortable with it. Individuals with experiences like P. S. have trouble setting boundaries, but it is up to the therapist to do this, not the client. In this case, in Dr. Frank's opinion, if the allegations by P. S. are true, Respondent did not meet standards. His education and training should have made him careful to set boundaries with the patient. He should have recognized and protected her vulnerability. It was inappropriate for Respondent to suggest guilt to P. S. when she said she was uncomfortable with his approach, and it was also inappropriate for him to suggest he would feel rejected by her attitude. Under the circumstances, however, Dr. Frank does not find it surprising that P. S. stayed in therapy with Respondent even though uncomfortable with his approach. She did not have a sophisticated understanding of the therapeutic process and was obviously too trusting. Dr. Frank recognizes that individuals with psychosexual dysfunction may have a tendency to fantasize more than others and misinterpret the actions of the therapist. According to Dr. Frank, it doesn't matter in the evaluation of these allegations that P. S. does not recall whether Respondent asked her to touch his penis or not. Quite often parties to a sexual relationship do not remember who made the initial overture; what is significant in the relationship is that it happened at all. By the same token, Dr. Frank believes it is not at all inconsistent for P. S. not to mention Respondent's actions to other professionals because she did not feel empowered to do so. She might consider it a betrayal of Respondent to do so and suffer feelings of guilt thereafter. Under the circumstances, having reviewed P. S.'s records and being aware of her background, Respondent had the responsibility not to do anything which could be misinterpreted by her. To be fair to Respondent, Dr. Frank admits that from her review of P. S.'s record of treatment by Respondent, not all of her issues were sexual in nature, and in these other issues the Respondent provided help. He addressed family issues, general relationships, rejection, conflict, and trust. He used reality testing and cognitive behavior techniques, allowing her to express her feelings. Dr. Frank believes, however, that it would have been helpful to bring in her husband more often and Respondent could have delved more into the homosexual issues presented. P. S. took several medications during the period of her treatment by Respondent, as indicated here. Zoloft is a very safe antidepressant whose side effects are minimal. Elavil may cause an exaggeration of symptoms of paranoia. Wellbutrin has the side effect of causing confusion in some patients. Desyrel, used to treat P. S., may cause hallucinations and delusions when given in high doses and though low doses are unlikely to produce such side effects, it is possible. Ambien's possible side effects include a variety of abnormal thinking and behavior patterns, including agitation, hallucinations and depersonalization. While medications may affect a patient's memory of dates, they will ordinarily not remove the patient's memory of the incident or occurrence, nor will they likely, in the doses prescribed here, cause hallucinations. The medical literature offered in evidence by Respondent show doses considered by the mainstream practice to be reasonable for treating depressed patients. P. S.'s records do not show any psychological reaction to her medications. The doses she was receiving were small. P. S. was also subjected to psychological tests, including the Millon Clinical Multiaxial Inventory-II (MCMI), the results of which must be interpreted by a clinician to have validity. Here, in Dr. Frank's opinion, P. S.'s responses and the information developed regarding P. S. is not so far out of the medical mainstream as to merit being disregarded. This test was administered in 1989, at which time P. S. was an inpatient in a mental hospital, and the results reflect her feelings at the time the test was administered. If she was hospitalized for depression, the test would reflect her depressed state. In this case, the interpretation given to the test administered to P. S. reflects the severe psychotic episode which resulted in her admission. The results suggest the use of cognitive techniques and building trust in the patient, and this is important. Respondent's practice deals primarily with sex therapy and depressive states. He first saw P. S. as a referral from Pastor Scott in 1989. Before he could hold his first session with her, she was hospitalized. In the intake evaluation, P. S. referred to depression, the ease with which she could be hurt, spiritual issues, her relationship with her husband, and sexual issues brought on by touching. The visits with P.S. were not easy. She would switch issues. Sometimes one problem would surface and on another occasion, other issues would surface, including grief, insomnia, and hypo- vigilance involving her spouse and daughter due to her own abuse when she was a child. Respondent's approaches then to the patient's depression were cognitive and supportive. Sometimes he would bring the family into the session. In dealing with her anxiety, he would use cognitive therapy, deep breathing, relaxation therapy, and restructuring (getting her to convince herself of the reality of things); P. S. and Respondent also dealt with her anger, which was destroying the family. A major area of discussion was P. S.'s sexual abuse as a child. When she first came to Respondent, he was very careful not to touch her or close himself off with her, leaving the office door open. He used a method of therapy through which the client first talked about her experience. They then moved to her reaction to it, and then on to her mastery of the problem. One of the main concepts to develop was her inability to trust anyone. They also worked on her relationship with her family, the church, and her stress as a result of these relationships. He found her to be hyper- sensitive and reactive to the most innocuous of comments. Respondent used the LoPicolo method to work on P. S.'s sexual anxiety. He had found she had a low sexual desire, in fact, an aversion to sex, and she had some orgasmic difficulties. To treat this he attempted to use awareness therapy and cognitive therapy. To make this work, however, the patient must accept her own body. To bring this about, he would have her touch her face and other body parts and tell him what she felt. Concerning the area of her marital issues, they spoke of mental causes and dysfunction. P. S. and her husband had not had sex for a number of years. Her husband had two children by a previous marriage, and P. S. had a difficult time relating to the children. There was a lack of communication, and the couple separated several times. There was also an issue with P. S.'s sister. P. S. gave her sister money for college and felt betrayed when the sister took the money but did not use it for school. This required therapy on forgiveness. P. S. also experienced occupational stress, and he brought her to the point where P. S. would decide when she was well enough to go back to work, but the overall need for stress management was continuous. P. S. also suffered from panic attacks and had an issue with Ardell James, Respondent's sister-in-law. Ardell and P. S. were close friends, but P. S.'s emotional problems put so great a stress on the relationship that Ardell, over the objections of Respondent, began to back away from P. S. P. S. could not handle this and became even more depressed, resulting in the hospitalization at Ridgeview. According to Respondent, when P. S. came back from Ridgeview, she hoped to reestablish the relationship with Ardell, but Ardell refused. This further depressed P. S. When she had first come back from Ridgeview, P. S. indicated she wanted to start therapy again with Respondent. Thereafter, Respondent saw her eight times in the short month after her return until on one occasion he received a hysterical call from her saying she had been replaced with Ardell in the women's ministry. P. S. alleged that Respondent had told Pastor Scott to replace her, and as a result, she would never forgive him and would see that he paid. Notwithstanding this accusation and threat, she asked him to set up another meeting with Ardell, and at that meeting, she told him she could not continue therapy with him. Dr. James then began to hear that P. S. was spreading rumors about his inappropriate therapy. He tried to set up a meeting with P. S. and Ms. Williams, another patient also alleged to be spreading rumors about him. Mr. S. also came to the meeting. At the meeting, P. S. made her allegations. When he asked Mr. S. if he had ever heard these allegations before that time, he allegedly said no. With that, Respondent claims, P. S. stormed out of the meeting and continued her attack on him with the Department and with the church. P. S. alleged that the Respondent instructed her to touch all her body area, but Respondent denies this. He admits to telling her to touch her face and her breasts, but not her vaginal area in his presence, and he also contends she never disrobed in his presence. Self-touching is discussed in several authoritative publications entered into evidence which suggest desensitization as a valid therapy. "Sensate forces" is described as self-touching, and Respondent admits to letting P. S. do this. However, the therapist must monitor the client's level of discomfort, and he unequivocally states he let her touch her face and breasts only and at no time suggested she engage in masturbation. Respondent also categorically denies ever having touched P. S.'s breast or her vaginal area, or let her touch his penis during a session, and he denies ever making any sexual comments which involved him. In fact, he claims, he rarely touched her at all. On one occasion when she was very tense and could not talk, he gently massaged her neck and shoulders and thereafter gave her a prescription for massage therapy. The Respondent claims he will not touch portions of clients which are off limits. He contends that at no point did P. S. ever share with him, verbally or otherwise, any discomfort she felt when he massaged her neck. Respondent admits that P. S. brought him pictures of herself at one point in their relationship, but contends there were only two through which she wanted to show him the "before" and "after" stages of his therapy. When Respondent realized that transference was taking place, he tried to explain what it was to P. S. and that it was all right to talk openly with him. However, he asserts, he told her that because of the transference, he felt she should take therapy with another therapist and recommended Dr. Sanderson. Respondent administered the MCMI-II to P. S. as an outpatient in his office. The responses she gave in answer to the questions asked are about what might be expected from a paranoid, delusional, and hallucinatory individual. This is how Respondent described P. S. at the time the test was administered. This description is not consistent with that used by Dr. Frank, who also opined he should not have interpreted the results himself. Dr. James also claims that P. S. spoke with him of sexual improprieties by a prior therapist. When he asked for the therapist's name, she refused to provide it, nor would she give him any other information about the alleged incident. He did not enter this allegation into P. S.'s records, nor did he place on the record all the late night phone calls she made to him. Pastor Scott cannot recall any instance over the years he was P. S.'s minister when she said anything negative to him about Respondent's treatment of her, even though Pastor Scott was the person who brought them together. She always seemed happy and was displeased only when Pastor Scott removed her from her position of responsibility at the church. Notwithstanding her belief that the Respondent was behind that removal, he was not, and Pastor Scott tried to make that perfectly clear to her. Dr. Marian Sue Street, an expert in the field of marriage and family therapy and mental health counseling, has known Respondent for approximately ten years as a co-member of the faculty at the University of South Florida where he teaches a course in legal and ethical considerations and human sexuality for counselors. In her professional opinion, his teaching is well within accepted boundaries, and the school is particularly pleased with the quality of his teaching. He has high standards and demands high performance from his students. Dr. Street has not had the opportunity to observe him with clients, but she believes his treatment of them is also good. He maintains high moral standards among students and faculty members, and his reputation is good. His standards and work ethic have him rated highly in the community. According to Dr. Street, "transference" in counseling implies that the client will transfer feelings they have for another person of whom the therapist reminds them onto the therapist. This would make it possible for the client, having transferred erroneous feelings to the therapist, to fantasize the therapist has the traits of the other person. The client then believes that fantasy to be the truth. In that regard, Dr. Street contends there is a great deal of evidence that memories can be constructed. Dr. Jon E. Mundorff, a certified sex therapist and an expert in marital counseling, sex therapy, and mental health, talked at length with Respondent about his background and philosophy before agreeing to testify in his behalf. He is aware of the allegations made, has reviewed Respondent's records, and heard the testimony of all witnesses. Based on his review of the records, his conversations with Respondent, and his own experience and training, he does not believe the allegations against Dr. James are true. Based on his understanding of P. S.'s background and testimony, he can see no rational basis for her allegations. She alleges inappropriate behavior by Respondent over a period of time, sexual in nature, in which Respondent allegedly acted out sexually and requested she do the same. Yet Dr. Mundorff saw nothing in the evidence to support the allegations. He found her to be profoundly disturbed and capable of making up the allegations. Dr. Mundorff considers Respondent's evaluation of P. S. to be within a reasonable standard of care. Recognizing the potential that Respondent's actions in the sessions could have been misinterpreted, he believes P. S. is capable of considerable misinterpretation. In his opinion, Respondent was aware of P. S.'s distress and compensated for it in his treatment, and Respondent's interest in and care of P. S., as manifested by his late-night time and demonstrated concern, indicate she received far more care than she paid for. Dr. Mundorff sees as a major issue for P. S. her replacement as head of the woman's forum by Pastor Scott, and he believes she blames Respondent for it though she probably would not know that herself. He is impressed by her threat to never forgive Respondent and her determination to make him pay for her removal. Dr. Mundorff also does not believe P. S. understood the concept of transference. Transference is not always a conscious thing, and the recipient may have nothing to do with it. Nonetheless, the transference becomes a reality to the client who has mental health problems, and the matters affixed to the therapist become reality to the client. According to Dr. Mundorff, "manufactured memory" is a real scenario. He considers P. S.'s repeated hospitalizations to be indicative of her lack of reliability as a witness because, "they don't put people in a hospital for no reason." He also opined that P. S.'s almost inaudible soft-spoken testimony is indicative of a desire not to be heard or to hide. Neither of these arguments is considered persuasive, however. In Dr. Mundorff's opinion, the state of P. S.'s mental health was such that, under the stress she was facing, it was likely that a fair amount of her recollections are delusional. That being the case, he further opines that the medications she was on, even at a low dose, could have increased her delusions. Significant as a factor in his evaluation is his opinion that most clients would not go back to a therapist who did what Respondent is accused of. P. S. repeatedly returned and consistently failed to report Respondent's alleged misconduct even though she had several opportunities to do so. He places little credibility in her testimony.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Clinical Social Work, Marriage and Family Therapy, and Mental Health Counseling enter a Final Order finding Respondent, Melvin William James, not guilty of the misconduct alleged and dismissing the Administrative complaint filed herein. DONE AND ENTERED this 19th day of April, 2001, in Tallahassee, Leon County, Florida. ___________________________________ ARNOLD H. POLLOCK 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 19th day of April, 2001. COPIES FURNISHED: Deborah B. Loucks, Esquire Agency for Health Care Administration Post Office Box 14229 Mail Stop 39 Tallahassee, Florida 32317-4299 A. S. Weekly, Jr., M.D., Esquire Holland and Knight, LLP 400 North Ashley Drive Suite 2300 Post Office Box 1288 Tampa, Florida 33601-1288 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way Bin C07 Tallahassee, Florida 32399-3257 Susan Foster, Executive Director Board of Clinical Social Work, Marriage and Family Therapy, and Mental Health Counseling 4052 Bald Cypress Way Tallahassee, Florida 32399-1701 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way Bin C07 Tallahassee, Florida 32399-3257
The Issue The issue in this proceeding is whether the Department of Children and Family Services should revoke the foster care license of Thomas and Shana Stone.
Findings Of Fact At all times material to this proceeding, the home of Thomas and Shana Stone was licensed by the Department as a foster home. Jeffrey G. was placed in the Stones' home on or about November 9, 2001, when he was approximately 10 months old. Two other children, who were eleven and four-year-old siblings, were also placed in the Stones' home around the same date that Jeffrey was placed in their home. The three children slept in the same bedroom which contained a bunk bed and a crib. According to Mrs. Stone, the siblings were unruly and she requested that the Department remove them from their home. The other children were removed from the home on November 12, 2001. On November 16, 2001, the Department received a report alleging that Jeffrey had a bruise three inches in length on his thigh. Jeffrey was brought to the Department's office by a foster care worker on November 16, 2001, for a scheduled visit with his mother. There is nothing in the record to indicate that Jeffrey was brought to the Department on November 16, 2001, as a result of the abuse allegation. Joann Lycett is a licensed protective investigator supervisor for the Department. Prior to becoming a supervisor, she was a protective investigator. During the time she has been an investigator and a supervisor, she took part in between 400 to 500 reports of child abuse or neglect. In addition to her experience as an investigator and a supervisor, Ms. Lycett received specialized training in child abuse investigations and earned certification in the child protection field. Her training includes determining the nature and cause of injuries to children. Ms. Lycett was present at the Department when Jeffrey was brought in for the visit. She observed an oval shaped bruise approximately three inches by two inches extending out from under the child's diaper onto his upper thigh. When the diaper was removed, Ms. Lycett could see bruising on the child's buttock as well. Ms. Lycett observed the bruise to be dark which was an indication to her that the bruise was recent as opposed to a bruise yellow or green in color. From her experience and training, the bruise did not appear to be accidental. Jeffrey was examined on November 16, 2001, by Richard C. Trump, a Child Protection Team medical doctor of the University of Florida.1 Dr. Trump's report reads in part: . . . on the buttocks there are some fairly fresh vertical and linear 1mm wide bruises which are external to the buttock crease. There is a 7x3cm bruise on the left buttock below the aforementioned linear bruises, which ends in a circular bruise at the lower left buttock. The thin linear bruises come together perfectly when the buttocks are compressed flat. All of the bruises are fairly superficial and are red and blue in color; no yellow or green is present. There are no bruises medial to the linear bruises in the crease of the buttocks. Mrs. Stone first observed the bruise the morning of November 16, 2001. Mrs. Stone did not report the bruise to the Department. Jeffrey generally attended daycare from seven or eight o'clock in the morning until 5:30 or 6:00 in the evening. Jeffrey attended day care on November 16, 2001. Mrs. Stone conceded that the bruise could not have happened at the daycare center because she observed the bruise the morning of November 16, 2001, before Jeffrey attended the center. According to Mrs. Stone, Jeffrey wore a brace on his leg which caught on the crib a couple of days before the incident. This, however, would not explain a fresh bruise as described by Ms. Lycett and supported by Dr. Trump's report. Likewise, the other foster children could not have caused the bruise as they were removed from the home four days prior to the incident in question. While the evidence did not prove that Mrs. Stone directly caused the injury, the evidence did prove that the child suffered harm while in the custody and control of Respondents.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Department of Children and Family Services enter a final order revoking the foster care license of the Stones. DONE AND ENTERED this 16th day of August, 2002, in Tallahassee, Leon County, Florida. BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of August, 2002.
The Issue Whether the Department of Children and Family Services (DCF) may revoke Respondent's family foster care license due to her continued contact with her husband after he was convicted of sexual molestation of their teen-aged daughter.
Findings Of Fact Lila and Charles Dean were licensed foster parents from 1986 through 1991, when they adopted their daughter who was then six years old. The couple subsequently had two natural daughters. In January 2001, the 16-year-old adopted daughter reported that Charles Dean had been sexually abusing her for approximately two years. Lila Dean immediately had Charles Dean move out of the family home. She has been consistently supportive of their daughter and went with her through the whole abuse and rehabilitation system. Charles Dean was convicted in 2001 of sexually abusing his adopted daughter and is a registered sex offender. Lila Dean has been separated from Charles Dean since January 2001, but she has not filed for divorce. On March 13, 2002, Lila Dean was relicensed by DCF as a family foster parent. George Payne, DCF Family Counselor III, testified that during the family foster home re-licensing process prior to March 13, 2002, Lila Dean admitted to him that she was seeing her husband away from the home once every two or three months to discuss child support, insurance, etc., and that he had no contact with the children. She also admitted that with the permission of his probation officer, Charles Dean had come to the home, while the children were at school, to make needed repairs. At Mr. Payne's urging, she promised to get someone else to make any future repairs. The licensing process took eleven months because of DCF's concerns about Mrs. Dean's contacts with her husband, but DCF licensed her individually on March 13, 2002, because of her previous excellent record as a foster parent in another district supervised by Mr. Payne from 1985 to 1989. On May 13, 2002, upon receiving an abuse report that Mrs. Dean had been having regular contacts with her husband; that Mrs. Dean had made comments in the community that Mr. Dean's sexual abuse was not that serious because the girl was his adopted, not his biological child; and that Mrs. Dean had spoken on Mr. Dean's behalf requesting that he be spared a prison sentence, DCF removed the two non-verbal, toddler, foster children who were then in Mrs. Dean's foster care and instituted a further abuse investigation. After the abuse report had been received regarding Mrs. Dean's 2002 contacts with her husband, she told Mr. Payne that she was not looking for a relationship with any other men because they might want a sexual relationship with her, but that sex was not an issue with her husband, so she felt comfortable with him. The abuse report, which related the couple's more frequent contacts, suggests the family is "working toward reconciliation," something Mrs. Dean has denied to Mr. Payne. The abuse report verifies the old abuse information as to the adopted daughter. It does not verify the tipster's allegation that Mrs. Dean does not view Mr. Dean's molestation of their adopted daughter as less serious than it would have been with a natural daughter. There is no direct testimony or otherwise reliable evidence on this issue, on the issue of whether or not she has spoken publicly on his behalf, or on the issue of whether or not a reconciliation is anticipated. There is no evidence that Charles Dean has been in the home since Lila Dean was relicensed. DCF sent a license revocation letter to Mrs. Dean after becoming aware of the increasing frequency of her contacts with her husband. The basis for revocation was given as: . . . pursuant to Section 409.175(8)(b)3. [now Section 409.175(9)(b)3] Florida Statutes, because your continued and repeated contacts with Charles Dean are inconsistent and incompatible with your role as a foster parent. It is not in the best interests of vulnerable foster children to be placed with a foster parent who considers it appropriate to have a relationship with a registered sex offender. [Clarification of statutory citation agreed-to and supplied]. Mr. Payne was unaware of any DCF rules Mrs. Dean broke by having contact with her husband. Mr. Payne has no indication that any children, natural or foster, were at greater risk post-licensing than pre- licensing due to Mr. And Mrs. Dean's increased contact. DCF cannot constantly monitor a foster parent to ensure that the children in her care are not placed at risk by her personal associations.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services enter a final order reinstating the family foster home license of Lila Dean and specifically limiting any appearance on the foster home premises by Charles Dean. DONE AND ENTERED this 17th day of January, 2003, 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 17th day of January, 2003. COPIES FURNISHED: Lucy Goddard, Esquire Department of Children and Family Services Post Office Box 390, Mail Stop 3 Gainesville, Florida 32602 Robert Vest, Esquire 613 St. Johns Avenue Suite 212 Post Office Box 2525 Palatka, Florida 32177 Paul F. Flounlacker, Jr., 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
