The Issue Whether the Petitioner is entitled to an award of attorney's fees and costs pursuant to Section 57.111, Florida Statutes.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department is the state agency responsible for licensing and regulating foster homes. Mrs. Sampson operated a Childrens' Medical Services ("CMS") medical foster home for children with special medical, emotional and physical needs, and was licensed by the Department as either a CMS medical foster home or as a regular foster home from 1990 until November 1997. At some point in 1996 or 1997, Mrs. Sampson voluntarily ceased operating as a CMS medical foster home, but continued to operate as a regular foster home. There was conflicting evidence as to the precise date of this change, but the date is not relevant to this phase of the bifurcated proceeding. On March 2, 1998, the Department filed an Administrative Complaint that sought to revoke Mrs. Sampson's foster care license. On October 6, 1999, the Department filed an Amended Administrative Complaint. The Department also denied Mrs. Sampson's application to adopt one of the foster children in her care. Mrs. Sampson requested a formal administrative hearing on both the revocation of her foster care license and the denial of her adoption application. The cases were consolidated, and a formal administrative hearing was held over several dates in April, May, and June 2000. Mrs. Sampson prevailed on all issues in the consolidated cases. A Recommended Order in her favor was entered on August 11, 2000. A Final Order adopting the findings of fact and conclusions of law in the Recommended Order was entered on October 2, 2000. Mrs. Sampson contends that she is a "small business party" as defined in Subsection 57.111(3)(d)1.a, Florida Statutes, which provides that the term "small business party" includes: A sole proprietor of an unincorporated business, including a professional practice, whose principal office is in this state, who is domiciled in this state, and whose business or professional practice has, at the time that action is initiated by a state agency, not more than 25 full-time employees or a net worth of not more than $2 million, including both personal and business investments. . . . At all times relevant to this case, Mrs. Sampson was domiciled in the State of Florida. At all times relevant to this case, Mrs. Sampson was licensed as a Licensed Practical Nurse ("LPN"). The determinative issue is whether Mrs. Sampson's operation of a foster home establishes her as the sole proprietor of an unincorporated business or professional practice. Mrs. Sampson initially operated her medical foster home for the benefit of one child, who was admitted to Tampa General Hospital while Mrs. Sampson worked there as a contract nurse. The child was born prematurely and was not expected to live longer than six weeks. Mrs. Sampson became a licensed foster parent to take this child home and care for him. Under her care, the child thrived. Though he survived the initial crisis, the child continued to require full-time nursing care. Mrs. Sampson was not able to return to full-time employment as a contract nurse outside the home. Mrs. Sampson testified that she advised the Department's case workers that she would need to take in additional medical foster children to supplement her income while she worked at home caring for the children. Over a period of eight years, the Department placed at least 14 medically needy foster children in Mrs. Sampson's home. The Department establishes foster home care board rates, which are standard reimbursements to foster parents for the expenses incurred for the foster children, such as food, clothing, medical care, and transportation. The board rates are minimums that can be increased by the Department if the needs of the foster child cannot otherwise be met. Mrs. Sampson received an enhanced board rate for at least some of the children in her care. The Department conducts orientation meetings for and training of prospective foster parents. The Department emphasizes that the purpose of foster parenting is to provide temporary surrogate parenting for the foster children. The prospective parents are informed that they are considered volunteers and will not be paid for their services. The parents are told that the board payments are for the childrens' expenses. Foster parents sign an agreement acknowledging that the board payments are "on behalf of the child." Rule 65C-13.011(4), Florida Administrative Code, expressly provides that substitute care parents must have sufficient income to assure the stability and security of their own families without reliance on the board payments, and that the substitute family must have sufficient income to absorb four to six weeks of a foster child's care before receiving a board payment. If the Department removes a child from a foster home, the board payment to the foster payment ceases. If the child is placed with a new foster parent, then the board payment goes to the new foster parent. In addition to the regular and enhanced board payments, a CMS medical foster parent may receive payments from Medicaid as reimbursement for medically necessary services rendered to the foster children. Mrs. Sampson was a designated Medicaid provider from April 1992 through March 1997. Mrs. Sampson contended that these Medicaid payments were for the nursing services she provided to the children, just as physicians receive Medicaid payments for treatment of eligible patients. However, medical foster parents are not required to be licensed medical professionals. Mrs. Sampson offered no evidence that the Medicaid payments were for her services as an LPN, or that private, residential LPN services even qualify for Medicaid reimbursement absent prior authorization. CMS-administered medical foster care services are authorized for Medicaid reimbursement, and the best evidence is that Mrs. Sampson was reimbursed as a medical foster care provider, not as an LPN. The Department established that Mrs. Sampson did not hold herself out as running a business, nor did she report as income on her federal tax return the payments received in connection with providing foster care. Mrs. Sampson testified that she hired part-time employees to assist her in caring for the children, but she did not withhold federal income tax or Social Security taxes from their pay and did not file W-2 wage statements for them. Mrs. Sampson explained her failure to report her board payments as income by reference to 26 U.S.C. s. 131, which excludes foster care payments from reportable gross income. This citation justifies her failure to report, but also supports the Department's contention that foster care payments should not be considered business income. Mrs. Sampson implicitly conceded that her foster home did not possess any of the common indicia of a business. Her chief contention was that from 1970 to 1990, she worked as an LPN through nursing agencies, caring for sick children in hospitals or in their homes, and that from 1990 to 1997, she worked as an LPN caring for medical foster children in her own home. In other words, Mrs. Sampson contended that by operating the foster home, she was continuing to practice her profession in a different setting. She gave up the income from her practice as an LPN through nursing agencies in favor of the income she received as an LPN acting as a medical foster parent.
The Issue The issue to be resolved in this proceeding concerns whether the Petitioners have been guilty of violation of pertinent statutes and rules governing qualification and capability to hold a foster home license and to operate a foster home, in this case a "therapeutic foster home" and, if so, whether their application for renewal of licensure should be denied.
Findings Of Fact The above-named Petitioners were licensed as operators of a therapeutic foster home and as therapeutic foster parents. Due to an alleged abuse report, they became involved in a revocation proceeding with the Department concerning their previously-held license. Upon advice by personnel with Camelot, Inc. (Camelot), a private provider which provides services to the Department for therapeutic foster care, by contract, they voluntarily relinquished their previous license on February 6, 2006, in the belief that they would still be entitled to a formal proceeding to contest that the alleged abuse occurred, and their licensure entitlement. The Department declined to afford them a hearing on the issue, and they appealed to the District Court of Appeal for the First District. The Department was upheld. They then applied for a renewal of their therapeutic foster care license on August 10, 2006, for Lake County, Florida. An evaluation of the application was launched by the Department and ultimately the Department issued a denial of the license application. A timely request for an administrative proceeding to contest denial of that license was filed by the Giegers. The license denial was based initially upon the Department's determination that the Giegers had allegedly inappropriately punished children in their home and that they had some sort of business interest or income interest in being licensed foster parents, purportedly a violation of foster parenting rules. Sometime thereafter a supplemental basis for denial was served upon them by the Department wherein the Department alleged that the Petitioners had also violated Section 409.175(4) and (12)(a), Florida Statutes (2006), because they had a child placed in their home through a guardianship agreement that had not been approved by a court and were therefore acting as an unlicensed foster home. A response to that supplemental denial notice was made by the Petitioners. Therapeutic foster parents are trained to provide for children with difficult behavioral problems. The Giegers received this training and remained in compliance with the training updates and continued education necessary in order to continue their licensure in good standing. In addition to this, Mrs. Geiger is a trained mental health specialist, with a master's degree, who works for Lifestreams, a mental health provider, providing services to disturbed children. The Giegers were previously affiliated, as therapeutic foster parents, with the private provider, Camelot, which provides services to the Department for therapeutic foster care. They were licensed as therapeutic foster parents at that time, and accepted a number of severely disturbed children into their home over the years while they were affiliated with Camelot. When a foster parent has a child placed in their home, Camelot has a therapeutic system whereby a therapist is assigned to that child and is available for consultation at any time of day. If the primary therapist is unavailable, the supervisor of that therapist is available for consultation. Camelot's therapeutic personnel and various mental health professionals have been frequently in the Giegers' home to consult, monitor, and assist with the care and therapy of foster children placed there. A number of those therapeutic personnel testified. They established that the Giegers are excellent parents who have provided exemplary care to the foster children placed in their home. These people have training in mental health and related fields. Some hold master's degrees and have been trained to recognize abuse or evidence of it. Some are psychologists, specifically assigned as the mental health professional working with particular children placed in the Giegers' home. In 2005, a child, J.D., was placed in the Giegers' home by the Department. In addition to J.D., there were other children in the home, including Tyler, a non-foster care child placed privately by Camelot with the Giegers, as well as the Giegers' own adopted son. All of the children in the home had been abused prior to their placement with the Giegers. J.D.'s previous situation before coming to the Giegers' home was particularly egregious. He had been starved, locked in a closet, had his fingernails removed by his parents and otherwise was the victim of severe parental abuse before coming into foster care. His was a case of high public notoriety and appears to have been thus treated with a heightened level of attention by the Department, as compared to the case of other children. When J.D. arrived at the Giegers' home after his initial rescue from his earlier situation, he purportedly weighed 58 pounds and was only 4 feet 8 inches tall, at the age of 17 years. During the time he resided with the Giegers, he grew several inches and gained almost 80 pounds due to the care given him by the Giegers. He was placed on special vitamins and formula, in addition to his regular meals, in order to restore him to appropriate physical condition. Because of his physical condition, extra efforts were made by the Petitioners to assure his safety. They even placed him in a private school because they felt he would be at risk attending a large public high school, which he would otherwise have been required to attend. J.D. did well at the Giegers' home initially and it was planned for him to remain in their home after he reached 18 years of age, if he continued to adjust favorably to being a member of their family. He began "acting out" more severely, however, with problematic behaviors. Ultimately it was determined by both the Giegers and Camelot that he should not remain in their home after he turned 18 because of the adverse impact he was having on other children residing in the home. Before the determination was made that J.D. would not remain in the Giegers' home after he reached 18 years of age, the Department had praised the Petitioners' care of J.D. After that decision was made, an attorney for the Department suggested to Mrs. Gieger that she be hired by the Department to provide special services to J.D. Apparently there was a funding problem with regard to continuing J.D. in private school, and this was suggested as a means of funding the private school. Mrs. Gieger, however, did not feel this funding was appropriate because she was already being paid by Camelot for these services, and expressed this to the attorney, she therefore declined that offer. In December 2005 the Department decided to have J.D. re-evaluated by his original evaluator, a psychologist, Dr. Dykel. During his meeting with Dr. Dykel, J.D. apparently told Dr. Dykel that the Giegers had cursed in his presence and in the presence of other children, used racially derogatory language concerning Black children in the foster childrens' presence and that Mrs. Gieger had sat on him as a means of restraint or punishment. He also stated that he was being deprived of food. This meeting occurred on a Friday afternoon. After the meeting J.D. returned to the Giegers' home and made statements about what he had said to Dr. Dykel. Initially the Petitioners thought nothing about the statements, but on the following Tuesday an abuse report was called in indicating that the Giegers had inappropriately punished J.D. in the manner he had related to Dr. Dykel. The child Tyler, who had been placed in the Giegers' home was a child who suffered from severe mental health issues. He had been placed privately with Camelot by his father. He had set his father's and step-mother's bed on fire the previous Christmas because he did not receive a toy, a "PS2," that he asked to be given him for Christmas. There was testimony that he was told by J.D. that if he would make a statement against the Giegers to the Department that he would get the PS2 toy that he wanted. He was taken by Erica Summerfield, an investigator assigned by the Department to the case concerning the abuse report, to the "Child Advocacy Center," for a statement. He apparently made such a statement, of the above import, but then recanted it. Nonetheless, based only on the statement made by J.D. and by Tyler, Erica Summerfield made a determination that the abuse report should be determined to be "founded." As a result of her report (and apparently a past history of abuse reports concerning the Giegers' foster care facility, none of which had been proven to be "founded"), Camelot apparently suggested to the Giegers that they voluntarily relinquish their license, purportedly telling them that they would still have the ability to challenge the abuse report through a Chapter 120 hearing. They sought to obtain a Chapter 120 hearing and the Department denied their request. An appeal ensued and the denial by the Department was affirmed by the District Court of Appeal. During the pendency of that appeal, the Giegers filed an application to renew their license, which was denied. This proceeding ensued after that denial, when the Giegers requested a formal proceeding. The Department offered the testimony of Erica Summerfield who was a child protective investigator assigned to the investigation. She was the supervisor of the person who interviewed J.D. and Tyler, apparently the only sources of investigative information leading to her finding that abuse had occurred. Ms. Summerfield testified that her concerns about the Giegers led her to make a report finding that abuse had occurred because alarms had been placed on the bedroom doors of childrens' bedrooms in the Giegers home; that the Giegers had used excessive restraint against J.D. (allegedly held him on the floor and lay on him or sat on him); and that J.D. had been mentally injured by the Giegers and not provided with sufficient food. She also opined that Mrs. Gieger had made inappropriate statements to J.D. None of these purported findings are supported by credible evidence. Initially it is found that J.D.'s and Tyler statements to the interviewer, who then apparently related them to Ms. Summerfield, constitute, at best, "second-hand" hearsay. Neither the interviewer nor J.D., nor Tyler testified at the hearing, and Tyler later recanted his statements made to the interviewer. The Respondent's exhibits two, three, and four, the interview reports, were offered into evidence and were only admitted regarding a basis for the Department's course of conduct in the matter, but not for the truth of any facts depicted on the face of those exhibits. Concerning the alleged complaint, related to the interviewer, regarding lack of food, the credible persuasive evidence shows that J.D. actually grew several inches after being placed with the Giegers, even though doctors had opined that he would not grow much, if at all, because of the starvation that had occurred early in his life. He also gained substantial weight while being cared for by the Giegers, so that he essentially looked like a normal child by the time he left their care. He had been emaciated when he came to the Giegers' care and had been described as looking like a "concentration camp victim." He was described as being far smaller than a child of his age when he came to the Giegers' care, but seven months later appeared to be essentially a normal child in physical appearance. The evidence, in fact, clearly supports the determination that the Giegers did provide J.D. with appropriate nutrition during their care of him. The basis for the alleged abuse regarding his not being properly fed is simply not credible. The Giegers had also been accused by J.D. or Tyler, or both, with using inappropriate language, racial slurs and cursing in J.D.'s presence, purportedly causing him mental harm. However, mental health experts present in the Giegers' home on a weekly and almost daily basis had never heard any inappropriate language, including any inappropriate racial language or inappropriate cursing in the childrens' presence during their visits to the Giegers' home. Many of these visits were unannounced. Two of the counselors or mental health professionals often present in the home were African-American. They found no evidence of racial tension or racially derogatory language being used by the Giegers or in the Giegers' home. It was their belief that the Giegers did not exhibit any behavior which suggested racism. Further, there were no Black children placed in the Giegers' home during the time that J.D. was there. There is simply no credible evidence to support any finding that inappropriate language was used by Mr. or Mrs. Gieger in J.D.'s or other childrens' presence, of a racially derogatory nature or otherwise. Part of the basis for the abuse finding (and the reason for license denial) was excess restraint or "sitting on" J.D. as punishment. This position was based on the statements of the two children, J.D. and Tyler. One of them, Tyler, tearfully recanted his story shortly after he made the statement. Erica Summerfield testifying for the Department, admitted in her testimony that she was aware of his recantation. She also admitted that Tyler's parents had asked her more than once to allow him to be placed back in the Giegers' home. They also had disclosed to her that he had a habit of making inappropriate statements and lying. There is evidence that J.D. had told him that he would receive a toy he wanted very much if he would make a statement to the Department that J.D. had been abused by the Giegers. Most importantly, J.D. had identified the point in time when Ms. Gieger was supposed to have sat on him as during an occasion when he broke a window at the house. Other mental health providers who were in the home around that time reported never seeing any bruise marks or other evidence of injury to J.D. or at any other time. They also reported that Mrs. Gieger was especially careful of his safety because of the seriously debilitated condition of his body. Most importantly, however, during the time that the window was broken by J.D. and he was severely acting out, Mrs. Gieger was on the phone with a professional from Camelot who was helping her to calm or "de-escalate" J.D. and who remained on the phone with Mrs. Gieger during the entire incident. That expert heard nothing which indicated that Mrs. Gieger had sat on the child or in anyway inappropriately restrained him. Mrs. Gieger denied using physical restraints on the foster children at the hearing. The Department maintains, however, that in two prior reports discussed in Camelot's letter, report 1999-127436 and 2002-007021, the Giegers had admitted restraining foster children. In the 1999 incident the child purportedly sustained rug burns on the face while being restrained on the floor by Mr. Gieger. These reports are at best second-hand hearsay. Moreover, they are not reasons of which the Petitioners were provided notice, as part of the basis for the denial of their licensure application which triggered this proceeding. Moreover, both of those incidents were immediately reported by the Giegers themselves to the Department and, ironically, the Department did not see fit to make any determination at the time, or since, that those incidents amounted to abuse. No finding was made that those alleged incidents were "founded" abuse episodes. Moreover, the Department relies upon an incident where Mrs. Gieger purportedly stated that she used force against J.D. when he tried to grab her neck. She purportedly told Ms. Summerfield in an interview that she gave J.D. a "therapeutic bear hug" by grabbing his arm and turning him around. He fell to the floor as a result. Parenthetically, not even the Department claims that she forced him to the floor. Mrs. Gieger's testimony at hearing concerning this event was to the effect that she grabbed J.D.'s wrist in order to prevent him from striking her or grabbing her neck and that he just collapsed to the floor. The Department then maintains that foster parents are not permitted to use such "force" on foster children, such as grabbing J.D.'s wrist, because it equates this to the use of corporal punishment and that grabbing a child's arm or wrist could "traumatize" an already vulnerable foster child. Mrs. Gieger's testimony, however, indicates that the use of "therapeutic bear hug," even if it occurred, is part of an approved method of training which she had, which is designed to safely manage children who are acting out in a potentially dangerous way, until they can calm down. She testified that Camelot, the Department's contracting agent, had approved this training for her. Moreover, when a foster parent is in danger of attack by a 17-year-old, even a somewhat debilitated child, who threatened striking or grabbing the foster parent by neck or throat, to grab his arm or wrist to prevent such conduct is reasonable and does not constitute unreasonable restraint. Assuming this event occurred, to characterize the grabbing of a child's wrist, to prevent injury or potential injury to a foster parent or another, as excessive force or "corporal punishment" is nonsensical. There is no credible, persuasive evidence that either Mr. or Mrs. Gieger engaged in any excessive force or restraint amounting to abuse. A concern was raised by Dr. Dykle, the psychologist, who was fearful of the fact that alarms had been placed on childrens' rooms in the foster home. Ms. Summerfield based her finding that abuse had occurred, in part, on the report that the alarms had been placed on the doors of some of the childrens' rooms. Ms. Summerfield, however, admitted in her testimony that alarms are often and routinely placed on childrens' rooms in therapeutic foster care homes. The mental health experts who testified clearly established that in every therapeutic foster home such alarms must be placed on bedroom doors because of a safety concern for other children. Children who are placed in this type of home are often serious safety risks for themselves or for other children. They have often been found themselves to be perpetrators of inappropriate or violent conduct. Many times they are children who have been sexually abused and have themselves become sexual perpetrators. In fact, there was a child in the Giegers' home at the time J.D. was there who had set his parents' bed on fire because he did not get a desired toy for Christmas. Dr. Dykle's apparent grave concern about alarms being placed on the childrens' bedroom doors is surprising since it appears to be completely contrary to generally accepted, safe practice for therapeutic foster homes, something that he should have been aware of if he is indeed an expert in child abuse issues. Ms. Summerfield admitted that she was aware that this was a virtually universal safety practice in therapeutic foster homes and yet, paradoxically, used it as a factor in support of her finding that abuse had occurred, as a basis of denial of re-licensure. Ms. Summerfield also admitted that she had spoken with Camelot professionals who assured her that the Giegers had been exemplary foster care parents. She acknowledged that J.D. had made untrue statements in the past about other foster placements. She admitted that the only evidence of improper restraint, or any kind of abuse or neglect in the home, was essentially predicated on the statements of the two children who did not testify in this proceeding. She conceded that one of them had recanted and she knew of this well before the hearing. Mental health experts from Camelot who testified, established that it is a very frequent event for foster children placed in therapeutic foster homes to act out and to make false statements and accusations concerning their care-givers. They also indicated that J.D. had made such false allegations in the past against other caregivers. This was all information that a thorough investigation would have made known to the Department, at the time it was making the determination that there was a basis for a finding of abuse. The only witness other than Ms. Summerfield, presented by the Department, was Amy Hammett, the licensing official who actually signed the letter denying the license application. She testified that she did not review all of the documents that made up the Giegers' license application. Some other department employee had been assigned to the case and it had been later transferred to Ms. Hammett before the final decision was made. She had reviewed five relevant forms, but nothing else. She had no evidence to support the Department's position that the Giegers had relied upon the foster care services they provided for income to support their own family, other than the fact that they had taken a legal position in the appeal from the previous attempt at a Chapter 120 proceeding, to the effect that they had something in the nature of a property interest in their foster care license. This may have been a necessary position to take in an attempt to establish jurisdiction or standing in that proceeding, but other than that, and one statement attributable to Mr. Gieger that there was an adverse financial effect on the Giegers related to that proceeding, it was not established that the Giegers were relying on the income from foster care services to support their family. Rather, in the context of that statement and the Giegers legal position during the course of their appeal, the reference was most likely made in the context that the hiring of an attorney, with related expense, in prosecuting the first case, including an appellate proceeding, caused an adverse financial effect, which is understandable. That does not constitute credible, persuasive evidence that the Giegers were relying upon foster care services as income to support their own family and themselves in violation of any Department rule. Mrs. Gieger, indeed, testified under oath that they did not rely upon foster care income to support their family. Her testimony and that of others showing that they have successfully operated a well- managed, licensed home for a substantial period of time, shows that the Petitioners are financially capable of operating safely and successfully under a new license. There is no persuasive evidence to the contrary. The greater weight of the credible evidence is persuasive in establishing that the Giegers provide quality therapeutic foster care and have not engaged in the abuse with which they are charged. Even J.D. expressed the desire to come back and live with the Giegers and, after he reached 18 years of age, he did so. This certainly does not support the existence of abuse. Moreover, Earnest Thomas, J.D.'s guardian ad litem established that the Giegers provided J.D. with excellent care. He was a frequent visitor in their home and paid close attention to J.D.'s well-being during times pertinent to this case. Further, the caseworker, Sheila Donato, was the person who took J.D. from the Giegers' home when he was removed by the Department. On this occasion she stated that he was tearful and crying when he left the Giegers' home and asked if he would be able to come back to their home for Christmas. There were no bruises or other evidence that he had been harmed in any way. She established that the fact that he returned to the Giegers home after he turned 18 years of age is evidence that he had never been abused while there. After the Giegers' foster care license had been relinquished voluntarily by them under the above-referenced circumstances, Tyler's parents executed "guardianship papers" placing Tyler in the custody or guardianship of the Giegers and they continue to allow Tyler to reside in their home. The Department maintains that this was an illegal placement because the Giegers were not a licensed foster care facility at that time and had not secured a court order allowing Tyler to be in their guardianship. The circumstances were, however, that Ms. Giegers' mother was the attorney who prepared the guardianship papers for the Giegers and for Tyler's parents to execute. She rendered an opinion to them that that was sufficient to justify allowing Tyler to remain in the Giegers' home. Ms. Gieger testified that she knew of other teachers and other individuals who had used similar documents to establish a basis to take custody of a child in their home. She believed that what she was doing was legal. There was no intent by her, or Mr. Gieger, to engage in any kind illegal custody, guardianship or circumvention of the foster care licensure requirements, or any other illegal act. There is no evidence that Tyler had been adjudicated dependent and subject to the custody of the Department.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Department of Children and Family Services granting a foster home license to the Petitioners, authorizing their operation as a therapeutic foster home. DONE AND ENTERED this 9th day of August, 2007, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with Clerk of the Division of Administrative Hearings this 9th day of August, 2007. COPIES FURNISHED: Jerri A. Blair, Esquire Lockett & Blair Post Office Box 130 Tavares, Florida 32778 Ralph J. McMurphy, Esquire Department of Children and Family Services 1601 West Gulf Atlantic Highway Wildwood, Florida 34785 Gregory Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John J. Copelan, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Robert A. Butterworth, Secretary Department of Children and Family Services Building 1, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue in this case is whether Petitioner should revoke Respondent's license to operate a foster home for dependent children.
Findings Of Fact Petitioner is the state agency responsible for issuing licenses to operate foster homes for dependent children. Petitioner also prosecutes license discipline proceedings. Respondent is the maternal aunt of three female children, Deanna, Angelique, and Antoinette. Respondent is a retired teacher. She worked for the state of New York before she moved to Florida. She also receives Social Security payments. Prior to 1990, Respondent's three nieces lived with their biological parents in the state of New York. New York adjudicated the children dependent and assigned the children to the foster care of Respondent. The three nieces were approximately 5, 7, an 8 years old. New York paid Respondent $2,100 a month to provide foster care for the three children. New York pays a monthly board rate of $700 per child. Petitioner agreed to supervise Respondent's foster care on behalf of New York. On March 12, 1992, Petitioner and Respondent entered into an Agreement To Provide Foster Care For Dependent Children ("Foster Care Agreement"). Each Foster Care Agreement provided, in relevant part: We will not give the child into the care or physical custody of any other person(s) . . . without the consent of a representative of the Department. * * * We will notify the Department immediately of any change in our address, . . . living arrangements, family composition, or law enforcement involvement. * * * We will comply with all requirements for a licensed foster care home as prescribed by the Department. * * * This child is placed in our home on a temporary basis and is at all times under the supervision and control of the Department. We are fully and directly responsible to the Department for the care of the child. We will take no action to acquire legal custody or guardianship of the child. * * * The Department may remove the child from our home at any time but will, whenever possible, give us at least two weeks notice. Until May 2, 1995, Respondent provided foster care for her three nieces without incident. Respondent was a loving and caring foster parent while the children were young. The children regarded Respondent as their mother. On April 25, 1995, Petitioner increased Respondent's licensed capacity for the period May 2, 1995, through May 1, 1996, to five children. Petitioner assigned two Florida foster children to Respondent. Petitioner paid Respondent $592 a month to provide foster care for the two Florida children. Florida pays a monthly board rate of $296 for each child. Problems developed in the foster home due to overcrowding. Tiffany, one of the two Florida foster children, had an infant child. Tiffany did not maintain good hygiene for herself or her child. Tiffany neglected her child. The additional parenting responsibilities fell on Respondent. Petitioner reduced the overcrowding by removing the two Florida foster children. Petitioner removed Tiffany and her child on December 8, 1995, and removed the second foster care child as soon as the school year ended. Other problems persisted in the foster home separate and apart from the problem of overcrowding. The three nieces were growing up and were beginning to manifest problems from unresolved childhood issues. Each niece had unresolved issues that presented very difficult parenting problems. As the nieces grew older, Respondent did not have the parenting skills necessary to parent her three nieces. Deanna's unresolved issues are illustrative. Deanna weighed under four pounds at birth. The mother was a cocaine addict throughout the gestational period. There was some fetal distress related to withdrawal. Deanna was always irritable. She had a very low frustration tolerance. She had frequent tantrums in which she would throw, spit, and hit her siblings and Respondent. Deanna had been treated with various medications. They included Ritalin, Depakote, Dexedrine, and Clonidine. The other two nieces presented Respondent with similar parenting problems. They hit Respondent when they did not get their way, frequently lied, and stole items from home and school. The problems presented by the three nieces would have been difficult enough to deal with for the best of parents. However, Respondent practiced inappropriate parenting techniques. Respondent used excessive corporal punishment to discipline all of her foster children. She practiced humiliation tactics on her oldest niece. Respondent gave preferential treatment to the youngest niece. Respondent arbitrarily allowed the youngest niece to have privileges denied to the other nieces. Respondent routinely gave the youngest niece excessive amounts of money for nominal tasks. For example, Respondent paid the youngest niece $100 for two hours work around the house. Respondent manages her own money poorly. Her income is insufficient to cover her expenditures. She is evasive and vague about her finances. Respondent became depressed and withdrawn. She remained non-verbal with lengthy periods of silence. She stared at the wall. When counselors and case workers confronted Respondent regarding her depression, she became very angry and agitated. She retreated into denial and relied on adolescent responses to distance herself from those trying to help her and her nieces. Petitioner conducted a critical case review on June 28, 1996. Petitioner provided numerous intervention services for Respondent and her nieces from July through November, 1996. Petitioner provided counseling through The Harbor Mental Health Services ("Harbor"). Respondent and her three nieces attended group therapy at Harbor. In addition, each niece participated in individual counseling at Harbor. Petitioner provided an Intensive Crisis Counseling Program ("ICCP") for Respondent. ICCP is an intense in-home counseling program over six weeks. It is designed to prevent removal of foster children from the home. Petitioner extended the ICCP in Respondent's home for an additional six weeks. Petitioner provided psychological evaluations to determine if Respondent was suicidal or suffered from alcoholism. The evaluations found no evidence of either problem. Therapists attempted to assist the individual family members toward effective communication, establishing boundaries, reasonable consequences, and consistent discipline. The intervention services provided by Petitioner were unsuccessful. Respondent and her nieces persisted in their inappropriate behavior. Petitioner issued a provisional license to Respondent for the period August 2, 1996, through November 2, 1996. The license required weekly visits by a foster care counselor. Petitioner conducted a routine home visit on September 26, 1996. The situation had not improved. On October 4, 1996, Petitioner conducted another critical case review. At the critical case review, the foster care counselor learned from members of the ICCP team that Respondent planned to leave Florida to visit New York. On October 10, 1996, the foster care counselor telephoned Respondent. Respondent confirmed that she was leaving for New York on October 11, 1996. When the foster care counselor asked Respondent to provide the location of her three nieces and the identity of the respite caregiver during Respondent's absence, Respondent stated only that she was leaving the nieces with her mother. Respondent told the foster care counselor that if Petitioner wanted to see her nieces while Respondent was in New York, the foster care counselor should telephone Respondent's home and leave a message on Respondent's voice mail. Respondent's mother would check the messages each day and return the case worker's telephone call. Respondent's manner and tone were abrupt, cryptic, abrasive, and angry. The foster care counselor was unable to obtain any further information. Respondent terminated the telephone call. Respondent violated several requirements of each Foster Care Agreement. Respondent allowed the removal of each niece from her home by someone other than Petitioner's representatives. Respondent gave each foster child into the care or physical custody of another without the consent of Petitioner. Respondent failed to provide Petitioner with adequate notice of any change in the living arrangements or family composition of the foster children. Respondent's mother was not, and never has been, an authorized foster care parent or respite caregiver. Respondent did not consent to Respondent giving her nieces to the physical care and custody of Respondent's mother. Respondent did not give Petitioner the information needed for Petitioner to adequately supervise the foster children during Respondent's absence. Petitioner determined that it could no longer supervise Respondent's foster care on behalf of New York. Petitioner ascertained the location of the foster children. On October 17, 1996, Petitioner removed the nieces from the home of Respondent's mother. Petitioner returned the nieces to the appropriate authorities in New York. By letter dated, October 17, 1996, Petitioner notified Respondent of the action taken. The letter also notified Respondent that the foster care home was closed and that Respondent's license was being revoked.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty of violating material provisions of the Foster Care Agreement for each of her three nieces, failing to effectively supervise and safeguard her foster home, and revoking Respondent's license to operate a foster care home for dependent children. RECOMMENDED this 28th day of April, 1997, in Tallahassee, Florida. DANIEL MANRY 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 28th day of April, 1997. COPIES FURNISHED: Richard Doran General Counsel Department of Children and Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory D. Venz Agency Clerk Department of Children and Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Ralph McMurphy, Esquire District 13 Legal Office Department of Children and Families 1601 West Gulf Atlantic Highway Wildwood, Florida 34785 Patricia Genovese Qualified Representative 13140 Jessica Drive Spring Hill, Florida 34609 Yvonne B. Butler, Esquire 6341 Gainsboro Avenue Spring Hill, Florida 34609
The Issue The issue in this case is whether Petitioners should be issued a family foster home license.
Findings Of Fact Based upon the testimony, exhibits, and stipulated facts in the Joint Stipulation, the following Findings of Fact are made: Parties and Process Petitioners, who are husband and wife, submitted an application for licensure as a family foster home. Although this was an application for initial licensure, Petitioners were previously licensed as a foster home from August 2013 to October 2019.1 The Department is the state agency responsible for licensing foster care parents and foster homes, pursuant to section 409.175, Florida Statutes, and Florida Administrative Code Chapter 65C-45. Petitioners voluntarily relinquished their foster home license on or about October 28, 2019, around the time two female foster children, S.W. and H.C.S., were removed from their care. It is unclear whether the children were removed because of an abuse investigation related to H.C.S., or whether they were removed because Petitioners closed their home to foster children. Regardless, Mrs. Gilio testified that they let their license lapse because they needed a break after fostering H.C.S. The Department administers foster care licensing by contracting with third-party private entities. In Circuit 13, where Petitioners are located, the Department contracted with Eckerd Community Alternatives, doing business as Eckerd Connects (Eckerd), to be the agency responsible for facilitating foster care licensing. Eckerd has subcontracted with Children's Home Network (CHN) to facilitate foster care licensing. 1 Petitioners had previously been denied a foster care license in 2009. At the time relevant to Petitioners, the Department used the "attestation" model of foster home licensing. In this model, a private licensing agency with whom the Department has contracted will conduct a home study on the foster home applicants and attest to the applicants' fitness to be licensed. The Department does not have the discretion to deny the license once the licensing agency has attested to the appropriateness of the applicants, except if they have been named as caregivers in three or more abuse reports within five years. If there are such abuse reports, the Department is required to review those reports and make a final decision regarding the application. There is no requirement that the reports result in a finding of actual abuse for them to be reviewed by the Department.2 Although it is unclear when Petitioners submitted their application for the foster care license in this case, sometime in late 2019, CHN conducted and compiled a Unified Home Study (home study), which included Petitioners' background screening; previous reports of abuse, abandonment, or neglect involving the applicants, and references from all adult children. The home study was reviewed at a meeting on December 19, 2019, by Eckerd, through the Committee. The Committee considered the application, home study, and licensing packet and heard from various agency staff. Petitioners were also allowed to voice comments and concerns at this meeting. Had the Committee approved the application, it would have been sent to the Department along with an attestation that stated the foster home meets all requirements for licensure and a foster home license is issued by the Department. However, the Committee unanimously voted not to recommend approval of a foster home license to Petitioners. 2 The categories of findings for an abuse report are "no indicator," "not substantiated," and "verified." "No indicator" means there was no credible evidence to support a determination of abuse. "Not substantiated" means there is evidence, but it does not meet the standard of being a preponderance to support that a specific harm is the result of abuse. "Verified" means that there is a preponderance of credible evidence which results in a determination that a specific harm was a result of abuse. Frank Prado, Suncoast Regional Managing Director for the Department, ultimately decided to deny Petitioners' application for a family foster home license due to their prior parenting experiences, the multiple abuse reports regarding their home, and the recommendation of the Committee. Mr. Prado expressed concern about the nature of the abuse reports and Petitioners' admission that they used corporal punishment on a child they adopted from the foster care system in the presence of other foster children. Petitioners' Parenting History Petitioners have seven children: one is the biological son of Mr. Gilio; another is the biological son of Mrs. Gilio; and five were adopted through the foster care system in Florida. Of these seven children, six are now adults. Three of the adopted children, Jay, Sean, and Jameson, are biological brothers who Petitioners adopted in 2001. Shawna, who was adopted around 2003, is the only adopted daughter. The Petitioners' one minor child, H.G., is a nine-year-old boy and the only child who resides in their home. H.G. suffers from oppositional defiance disorder. Petitioners admitted they adopted Shawna after there had been allegations of inappropriate behavior made against Jay, by a young girl who lived next door to Petitioners. Later, while they were living with Petitioners, Jay, Sean, and Jameson were arrested for sexually abusing Shawna at different times. As a result, one or more of the sons were court-ordered to not be around Shawna, and the other brothers were required to undergo treatment and never returned to Petitioners' home. During the hearing, both Petitioners seem to blame Shawna, who was nine years old when the sexual abuse by Jay in their home allegedly began, for disrupting their home. They accused her of being "not remorseful" and "highly sexualized." Regarding the abuse by Sean and Jameson, which occurred when Shawna was approximately 12 years old, Mr. Gilio stated Shawna thought it was okay to have sex with boys, and it was "hard to watch every minute of the day if they're, you know, having sex." When Shawna was about 19 years old, she filed a "Petition for Injunction for Protection Against Domestic Violence" against Mr. Gilio in circuit court. The Petition outlined allegations of past sexual comments and inappropriate disciplinary behavior from 2007 to 2012, while she lived with Petitioners. Mr. Gilio denied at the hearing having any knowledge about the Petition against him, but admitted he made comments about Shawna's breasts. As part of the application and home study process, the CHN collected references from Petitioners' former foster children and adult children. Shawna (Petitioners' only adopted daughter) gave them a negative reference and specifically stated she would not want female foster children to live with Petitioners. Reports of Abuse Petitioners were involved in 24 abuse reports during their time of licensure between 2013 and 2019. During the past five years, Petitioners were named as either alleged perpetrators or caregivers responsible in eight reports that were made to the Florida Child Abuse Hotline (Hotline). Of those eight reports, five of them named Mr. Gilio as the alleged perpetrator causing a physical injury, one report named Mr. Gilio as the caregiver responsible for a burn on a foster child, and one report named Mr. Gilio as an alleged perpetrator of sexual abuse against a foster child. Mrs. Gilio was named as an alleged perpetrator of asphyxiation as to a foster child. Seven of the reports in the last five years against Petitioners were closed with no indicators of abuse. One of the abuse reports was closed with a "not substantiated" finding of physical injury. In this report, Mr. Gilio was the alleged perpetrator and the victim was H.G., Petitioners' minor adopted son. Additionally, after Petitioners let their foster license lapse in October 2019, a subsequent report was made against Mr. Gilio for improper contact with a former foster daughter. This incident was discussed at the Committee meeting, but it was unclear if this allegation was ever investigated. Corporal Punishment According to the Department's rules, discussed below, foster parents are forbidden to engage in corporal punishments of any kind. In 2019, there were two reports alleging Mr. Gilio of causing physical injury by corporal punishment on H.G. At the time, there were other foster children in the household. Technically, Mr. Gilio was allowed to use corporal punishment on H.G. because he was no longer a foster child and had been adopted from foster care. If a parent uses corporal punishment on a child, there can be no findings of abuse unless the child suffered temporary or permanent disfigurement. However, foster care providers are not permitted to use corporal punishment. More than one witness at the hearing had concerns about the use of corporal punishment against H.G. because of his operational defiance disorder and because other foster children (who may have been victims of physical abuse) were in the household. Brendale Perkins, who is a foster parent herself and serves on the Hillsborough County Family Partnership Alliance, an organization that supports licensed foster parents, testified she witnessed Mr. Gilio treating a foster child in his care roughly. At the time, she was concerned because this was not the way children in foster care (who may have previously been victims of abuse) should be treated. She did not, however, report it to any authorities. The Department established through testimony that the policy against using corporal punishment is taught to all potential foster families. Mr. Gilio, however, denied ever being instructed not to use corporal punishment against foster children or while foster children were in the home. He also claimed that H.G.'s therapist had never recommended any specific punishment techniques. The undersigned finds Mr. Gilio's testimony not credible. Cooperation with Fostering Partners The Department established that decisions regarding foster children are made within a "system of care" which includes input from case managers, guardian ad litem (GAL), and support service providers. The relationship between Petitioners and others working as part of this system during the time of fostering was not ideal; it was described by witnesses as "tense" and "disgruntled." One witness, a supervisor at CHN, testified Mr. Gilio was not receptive or flexible when partnering with other agencies, and was not always open to providing information when questioned. As an example, Petitioners fired a therapist without consulting with the CHN staff or the GAL for the child. At the final hearing, Mr. Gilio continued to claim he did nothing wrong by not consulting with others in the system regarding this decision. Kristin Edwardson, a child protection investigator for the Hillsborough County Sheriff's Office, was tasked with investigating the reports of abuse and neglect against Petitioners that had been reported to the Hotline. She testified she was concerned with the level of cooperation they provided her and other investigators. Although they ultimately would cooperate, Petitioners made it difficult for the investigators and would often "push back" and make the situation more stressful. She described Mr. Gilio as being disrespectful, belittling, and dismissive of her. Licensing Review Committee On December 19, 2020, the Committee, made up of eight individuals, was convened to review Petitioners' application for a foster home license. When determining whether a family should receive a foster home license, the Committee is to evaluate the applicants' background, parenting experience, references from community partners, and the family's openness and willingness to partner. Sheila DelCastillo, a regional trainer with the GAL program, was a Committee member. She had prior knowledge of Petitioners from a report that a foster child's room in Petitioners' home smelled strongly of urine during a home visit and that GAL staff had found a prescription bottle beside the child’s bed that belonged to Mr. Gilio. With regards to Petitioners' application, she read the licensing review packet and home study that contained numerous abuse reports. Ms. DelCastillo was concerned about the 24 abuse reports Petitioners’ received during their time of licensure, the negative reference from Shawna, their use of corporal punishment on H.G., and Petitioners' downplaying of the events that led to multiple abuse reports. Michelle Costley, a licensing director with CHN in charge of level 2 traditional foster homes, also served on the Committee. Ms. Costley has 14 years of experience, with seven of those years spent in foster care licensing. As director of licensing, Ms. Costley was concerned about the number of abuse reports received regarding Petitioners; Mr. Gilio's inability to be open and flexible when working in partnership with other agencies; and the needs of Petitioners' child, H.G. She was also concerned about Petitioners' decision to fire a therapist of a foster child without consulting the GAL or the other individuals involved with that child. Regarding the alleged abuse, Ms. Costley was concerned that most of the reports regarding Petitioners involved allegations of physical abuse, inappropriate touch of a sexual nature, or sexual abuse, with most alleged victims being younger than eight years old. She explained that even though these reports could not be "verified," these types of allegations are harder to establish because testimony by children of that age often is unreliable and there usually must be evidence of physical injury, which no longer is present by the time the alleged abuse is investigated. Ms. Perkins also served on the Committee. Ms. Perkins served as a foster parent mentor, working with foster parents to help them build co- parenting strategies and navigate the system of care. She has been a licensed foster parent for 13 years and has adopted 11 children from foster care. As stated earlier, she was familiar with Petitioners from the Hillsborough County Family Partnership Alliance meetings. Ms. Perkins was concerned with the number of abuse reports with similar allegations, but different victims. She also discussed Petitioners' use of corporal punishment, noting that they could have been using verbal de-escalation methods instead of corporal punishment due to the traumatic histories of many foster care children. Ms. Edwardson also served on the Committee. In addition to her personal interactions with Petitioners, Ms. Edwardson was concerned about the totality of the information presented to the Committee regarding the abuse reports and Mr. Gilio's lack of cooperation. She noted that although they were not substantiated, the number and nature of the reports related to young children were of concern. Based on the Committee notes and transcript of the meeting, Petitioners were allowed to respond to the Committee's questions at the December 2019 meeting. They argued that none of the abuse reports were proven true and any injuries were not their fault. They seemed more concerned about who made the abuse reports and why the abuse reports were called in than whether the foster children were protected in their care. For example, although Mr. Gilio admitted to hitting H.G. with a stick twice as big as a pencil, he denied any bruising was caused by the stick. A report of a burn on another child was explained by Mr. Gilio as an accident that occurred while he was teaching her how to iron; he could not understand why this was reported as possible abuse. Ms. Gilio explained that H.C.S. was a very active child which resulted in her needing stitches and requiring restraint. After hearing from Petitioners, the Committee members discussed their concerns that Petitioners were not forthcoming about the various abuse incidents, and would not take responsibility for any of the injuries or issues raised by the abuse reports. All eight members voted to not move Petitioners' application forward.
Recommendation Based on the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Department of Children and Families denying a family foster home license to Petitioners, Mary and James Gilio. DONE AND ENTERED this 9th day of November, 2020, in Tallahassee, Leon County, Florida. S HETAL DESAI Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of November, 2020. COPIES FURNISHED: Anthony Duran, Esquire Tison Law Group 9312 North Armenia Avenue Tampa, Florida 33612 (eServed) Deanne Cherisse Fields, Esquire Department of Children and Families 9393 North Florida Avenue Tampa, Florida 33612 (eServed) Lacey Kantor, Esquire Department of Children and Families Building 2, Room 204Z 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed) Javier A. Enriquez, General Counsel Department of Children and Families Building 2, Room 204F 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed) Chad Poppell, Secretary Department of Children and Families Building 1, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed)
The Issue Whether Petitioner Antoinette Scanziani's license as a family foster home should be renewed.
Findings Of Fact Based on the testimony and evidence received at the hearing, the following findings are made: Respondent is the state agency responsible for licensing and regulating family foster homes. Children's Home Society (CHS) is the contract agency in the Central Licensing Zone that directly supervises licenses in that area. Petitioner filed an application to renew her family foster home license on May 26, 2006, which was originally issued for one year in August 2005. Prior to the issuance of her family foster care license on August 19, 2005, Petitioner had completed, inter allia, 30 hours of Models Approach Partnership and Parenting (MAPP) training and signed a Foster Parent Agreement, prepared by CHS, which spells out the duties and obligations of a foster parent. Paragraph 12 of the Agreement specifically states that a foster parent will notify CHS immediately of any change of address. Under Respondent's rules, a family foster care license is not transferable, and a new sanitation inspection and recommendation must be completed before Respondent can issue a new license for the new address. The family foster care license was issued to Petitioner for 5831 Bent Pine Drive, Apartment 300, Orlando, Florida 32822. The first foster child was placed in Petitioner's care on September 1, 2005. In August 2005, Petitioner began a dispute with the rental management company who managed the apartment complex where she lived. This resulted in Petitioner giving the company 60 days' notice that she would not renew her lease after October 31, 2005. The rental company, mean while, would not accept her tender of rental payments for August and September 2005, and initiated eviction proceedings in County Court. Prior to the final hearing, a stipulation was signed by the parties and approved by the County Court. Petitioner moved out of her apartment on October 31, 2005. On November 1, 2005, Petitioner, along with one foster child, moved into a house located at 7741 Fort Sumter Drive, Orlando, Florida 32822. CHS was not notified of this change of address until November 11, 2005. The CHS Dependency Specialist worked diligently with Petitioner to obtain a license for her new residence. DCF issued a new family foster care license for 7741 Fort Sumter Drive, Orlando, Florida 32822 on December 20, 2005. Petitioner maintained an unlicensed foster home from the period of November 1, 2005, through December 20, 2005. Although the foster child residing with Petitioner was not removed from the home, Petitioner was reminded of the need to notify CHS prior to any moves in the future. On April 6, 2006, Petitioner notified CHS that she had moved from her Fort Sumter Drive, Orlando, residence to a residence in Poinciana, Florida (Osceola County) at the end of March 2006. It was subsequently determined that a Writ of Possession for the Orlando residence was issued by the Orange County Court on March 2, 2006. Petitioner testified at the hearing that she moved at the end of March 2006, because of poor maintenance and discriminatory and retaliatory conduct by the landlord. The foster child was not removed from the home and the CHS Dependency Specialist again worked diligently and patiently with Petitioner to obtain a license for her family foster care residence at 127 Conch Drive, Kissimmee, Florida 34759 (Poinciana). Due primarily to Petitioner's lack of cooperation, a completed health inspection of the home was not completed until August 4, 2006. During this time, Petitioner submitted her application for relicensure on May 26, 2006. On July 13, 2006, the CHS Dependency Specialist hand delivered a letter, dated July 11, 2006, to Petitioner reminding her that a face-to-face visit and a walk through of the home was required before recommendation could be given. Petitioner was given a check-list of 16 items which were due to be completed prior to July 16, 2006, or CHS could not recommend renewal of her foster care license. On July 18, 2006, CHS sent Petitioner a follow-up letter. Although another home inspection had taken place on July 17, 2006, it was not a satisfactory home health inspection. In addition, proof of completion of 12 hours of training had not been demonstrated and six other items on the check-list were, also, not completed. The deadline for compliance was extended to August 3, 2006, with a reminder that the existing license expired on August 19, 2006. CHS followed with reminder telephone calls on July 19 and 20, followed by another letter on July 25, 2006, that all remaining items must be completed by August 3, 2006. Petitioner demonstrated compliance with four of the items, but did not provide Radon Test results or proof that her 2A10BC fire extinguisher was tagged and inspected. On August 18, 2006, the foster child, living in Petitioner's home, was removed. On August 19, 2006, Petitioner's family foster care license expired by operation of law, without Petitioner having submitted a completed application package to CHS. On August 28, 2006, Respondent sent Petitioner a notice of intent to deny her application for relicensure. The reasons for the denial were outlined on the four-page letter. Petitioner objected to the notice and requested a formal hearing, and this proceeding followed. From the evidence, it is apparent that CHS worked diligently in helping Petitioner transfer her existing license two times, when Petitioner moved without notifying CHS before the move; and encouraged and worked with Petitioner to complete the application for renewal a month before the expiration of her license. However, due to Petitioner's procrastination and/or resistance, the completed documentation was not sent in to Respondent prior to the expiration of her prior license.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that: Petitioner, Antoinette Scanziani's, application for a renewal of her family foster home license be denied. DONE AND ENTERED this 11th day of May, 2007, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE 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 May, 2007.
The Issue Whether Respondent's foster home license should be revoked.
Findings Of Fact There is no dispute that, at all times material hereto, Ms. Azulphar had a foster home license issued by the Department. Ms. Azulphar became a foster parent in January 1999. As with all new foster parents, Ms. Azulphar was required to complete 30 hours of Model Approach to Partnership Parenting (MAPP) training. Among other things, the MAPP training involves discussions regarding duties and responsibilities of a foster parent, the sexual problems of foster care children, and what to do if a foster care child runs away. Ms. Azulphar and the Department entered into a Bilateral Service Agreement regarding foster care. Both of them agreed to abide by the terms of the Bilateral Service Agreement. The Bilateral Service Agreement provided, among other things, the following: The Department's responsibilities to the foster parents include: * * * j. Support will be shown by responding within 24 hours to telephone messages, written correspondence or any other requests the foster parents may have. * * * Commitment to the Child The decision to accept a child into the home is a major one. . . Most foster children have experienced severe emotional, sexual and/or physical abuse as well as trauma. It is not unusual for children who have been sexually abused to act out in sexual inappropriate ways. Foster parents must be aware that these children need extra monitoring, teaching and showing of appropriate affection in order to grow into healthy children. . . By accepting a child into the home, the foster parent(s) agree to the following responsibilities: * * * d. To ensure that the child has supervision appropriate to his/her age and developmental level. * * * Foster parents have responsibilities and duties to both the department [sic] and the child. Responsibilities to the department [sic] include: * * * k. To notify the Department immediately if a child runs away, is missing or does not return home, even if the foster parent knows where the child is. * * * s. To know where and with whom the child is staying and the type of supervision the child is receiving when foster parents approve an outing or overnight activity. . . Non-compliance with any of the above provisions can result in termination of this service agreement by either the foster parents or the Department. Non-compliance with any of the above [sic] provisions may also result in the department [sic] revoking the home's license to provide foster care pursuant to Chapter 120, Florida Statutes. . . . Any person living with a foster parent is subject to a background check by the Department because such person would have contact with any foster child placed with the foster parent. Such person must not have a disqualifying criminal record1 in order for the person to remain in the foster home during the licensure of the foster home. Ms. Azulphar had a tenant, Louis Bryant, who lived in an attached room to her home, which was converted from a garage. He had his own private entrance to his room. In January 2002, the Department informed Ms. Azulphar that Mr. Bryant, not only had a criminal record, but also had a disqualifying criminal drug record and that, therefore, if she wanted to keep her license, he would have to move. Ms. Azulphar informed Mr. Bryant that he had to move. Mr. Bryant moved, and Ms. Azulphar provided documentation to the Department indicating that he had moved. Ms. Azulphar described Mr. Bryant as a long-time friend and someone that she had relied upon when she first came to the United States. Mr. Bryant was also Ms. Azulphar's former supervisor. Further, even though he was a drug addict, who was skinny and dirty, smelled bad, and needed reminding to bathe, Ms. Azulphar described Mr. Bryant as the only person upon whom she could call when she had an emergency. She also indicated that Mr. Bryant was a handy man who performed repairs for her. Ms. Azulphar admitted that, as to Mr. Bryant, she was a "co-partner." She further admitted that Mr. Bryant was someone she "needs to continue what she was doing." In spite of her reliance upon Mr. Bryant as indicated, Ms. Azulphar showed a willingness to comply with the Department's requirements by requiring Mr. Bryant to move. On or about May 8, 2002, a foster child, F.D.,2 was placed with Ms. Azulphar. F.D. was 12 years of age at the time. F.D. was a special needs foster child because she had a history of being sexually abused at an early age and because F.D.'s father was deceased and her mother had voluntarily surrendered her parental rights. F.D. was the subject of disciplinary action at school. She was suspended for ten days from school for pulling a knife on another student. During the suspension, Ms. Azulphar took F.D. to work with her. F.D. left Ms. Azulphar's workplace without Ms. Azulphar's permission and knowledge. F.D. called her friends who came to Ms. Azulphar's workplace and F.D. left with them. Ms. Azulphar discovered that F.D. was dating a young man who was much older than F.D. Ms. Azulphar believed that the young man was approximately 26 years of age because he "looked" 26 years of age and F.D.'s friends were dating young men who also looked 26 years of age. Ms. Azulphar believed that the young man was among the friends that F.D. contacted to leave Ms. Azulphar's workplace. Also, during F.D.'s suspension, on the afternoon of May 16, 2002, her Guardian Ad-Litem came to Ms. Azulphar's home to visit F.D. The Guardian Ad-Litem knocked but no one answered. F.D. emerged from a neighbor's house. Ms. Azulphar had left F.D. alone at home. Ms. Azulphar had instructed F.D. to wait for the Guardian Ad-Litem at home and to not go outside of the home. Ms. Azulphar talked with the Guardian Ad-Litem on the telephone that same day. She expressed to the Guardian Ad-Litem that she wanted F.D. out of her home. That evening on May 16, 2002, F.D. became so distraught and volatile that she took a knife and threatened to harm herself. Ms. Azulphar called the Department's emergency telephone number and was told to call the Crisis Center for Mobile Children (CCMC). Ms. Azulphar telephoned CCMC, which told her how to talk to F.D. Ms. Azulphar did as she was instructed and F.D. did not harm herself. The next day, May 17, 2002, sometime in the evening after bedtime, which was around 9 p.m., F.D. slipped out of Ms. Azulphar's home. Ms. Azulphar had taken a sleeping pill and was not aware that F.D. was gone. Around 4 a.m. on May 18, 2002, Ms. Azulphar received a telephone call from F.D., who wanted Ms. Azulphar to come and get her. Ms. Azulphar did not want to drive at that time because she had taken the sleeping pill, so Ms. Azulphar asked F.D. to have an adult come to the telephone. Ms. Azulphar believed that F.D. was at a party because of the background noise that she heard, which sounded like a party. Ms. Azulphar recognized that the person who came to the telephone was not an adult, but Ms. Azulphar requested that F.D. be permitted to stay at the person's home until 6 a.m. when she (Ms. Azulphar) would pick-up F.D. F.D. did not wait for Ms. Azulphar. She returned to Ms. Azulphar's home before Ms. Azulphar could get her. Ms. Azulphar did not call the police when she discovered that F.D. was leaving her (Ms. Azulphar's) workplace with the young man who was 26 years of age and when she received the telephone call from F.D. The reason that Ms. Azulplhar did not call the police is that she believed that the police would do more harm than good to F.D., that F.D. had had enough trouble, and that F.D. was a Haitian as she was. After F.D. returned to Ms. Azulphar's home on May 18, 2002, Ms. Azulphar contacted the Guardian Ad-Litem and requested the removal of F.D. from her home. The Guardian Ad-Litem reported the incident to the court and the court ordered an investigation and the removal of F.D. from Ms. Azulphar's home. The Guardian Ad-Litem did not know the results of the court's investigation. During the time that F.D. was in Ms. Azulphar's home, Ms. Azulphar also had, in addition to her own child, T.A., two other foster children, A.A. and her sister, V.A.3 All of the other children agree that F.D. could not be trusted, was a thief, and did not tell the truth. After F.D. was removed from her home, Ms. Azulphar had another foster child placed in her home, who ran away. However, this time, Ms. Azulphar contacted the police and the Department when she discovered that the child had run away. Sometime during the first two weeks that F.D. was placed with Ms. Azulphar,4 the Department's social worker for F.D., Luis Muriel, was making arrangements with Ms. Azulphar to pick-up F.D. Ms. Azulphar requested Mr. Muriel to come to her workplace since F.D. would be there with her; however, he wanted Ms. Azulphar to leave F.D. at home alone. Ms. Azulphar reminded him that she was not to leave F.D. at home alone. However, Mr. Muriel instructed Ms. Azulphar to leave F.D. at home alone and informed Ms. Azulphar that he would be arriving at her home in 30 minutes. Ms. Azulphar contacted a male friend, who was approximately 50 years of age, for assistance and requested that he wait at her home for Mr. Muriel, who would be arriving in 30 minutes. However, she instructed her friend to wait outside in his car, not in her home, and he agreed to do so. When Mr. Muriel arrived at Ms. Azulphar's home and knocked on the door, Ms. Azulphar's friend opened the door. Ms. Azulphar's friend had not complied with her instructions and had gone into her home while F.D. was in the home. The Department had not performed a background check on Ms. Azulphar's friend. There was no reason for the Department to perform a background check on Ms. Azulphar's friend since it was never intended by Ms. Azulphar that he would have contact with the foster children placed with her. As to the incident, Ms. Azulphar had made it clear to her friend that he was not to go inside the home. On May 29, 2002, around 8 p.m., the licensing counselor for Ms. Azulphar's case, Reynaldo Gonzalez, made an unannounced visit to her home after being contacted by F.D.'s Guardian Ad-Litem regarding F.D.'s situation. By that time, F.D. had been removed from Ms. Azulphar's home. Mr. Gonzalez noticed a car parked outside of the house. He knocked on the door. The foster child A.A., who was approximately 15 years of age at the time, looked through the window and informed Mr. Gonzalez that Ms. Azulphar was not at home. Mr. Gonzalez returned around 8:30 p.m. and A.A. was still at home alone. Ms. Azulphar had left A.A. at home alone. However, Mr. Gonzalez's primary concern was not A.A.'s being at home alone. On the following day, around 6:20,5 Mr. Gonzalez returned to Ms. Azulphar's home because the Department had received anonymous information that no food was in the home. The same car was parked outside Ms. Azulphar's home, but the front of the car was parked in a different direction. Ms. Azulphar was not at home, but a relative, who was there, permitted Mr. Gonzalez to enter. Mr. Gonzalez found that there was adequate food in the home. None of the foster children were at home; they were with Ms. Azulphar. Mr. Gonzalez's testimony failed to indicate whether the car was parked along the street or in the driveway. An inference is drawn that the car was parked along the street. Ms. Azulphar voluntarily admitted to Mr. Gonzalez that Mr. Bryant was the owner of the car. She wanted Mr. Bryant to park his car outside her home to make it look as if someone were at home because her home had been burglarized when no one was at home. Further, on one of the days referred to, Mr. Bryant's car was either in disrepair or out of gas.6 According to the Department, Mr. Bryant should not have parked his car in front of Ms. Azulphar's home on the street. However, the evidence fails to demonstrate that such conduct by Mr. Bryant involved contact with the foster children. Ms. Azulphar admits that, at times, Mr. Bryant accompanied her shopping even when the foster children were with her. Ms. Azulphar also admits that Mr. Bryant has cut her grass, but only when she was at home. Ms. Azulphar testified that she obtained the approval of the Department for cutting the grass even though no Department witness recalled approving the action. Ms. Azulphar's testimony is found to be credible. Ms. Azulphar used poor judgment as it relates to Mr. Bryant. At first, Ms. Azulphar believed that, even though Mr. Bryant could not continue to be a tenant, she could continue to have Mr. Bryant to assist her with some things. She now knows that, as long as she has foster children, the Department does not want him to be around the children at any time. Ms. Azulphar believed that nothing was wrong with Mr. Bryant parking or leaving his car at her house. Now, she knows that the Department does not want him to be near her home when she has foster children. A.A. and V.A. were removed from Ms. Azulphar's home when the Department decided to revoke her foster home license. Both A.A. and V.A. want to return to Ms. Azulphar's home. Ms. Azulphar's daughter is in complete agreement with her mother being a foster parent and wants A.A. and V.A. to return.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services enter a final order dismissing the revocation action of the foster home license of Marie Claire Azulphar. DONE AND ENTERED this 30th day of April, 2003, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of April, 2003.
The Issue Whether Petitioners, Kim and Coby Lantz, should be granted a license as a family foster home.
Findings Of Fact Based on the testimony and evidence received at the hearing, the following findings are made: Respondent is the state agency responsible for licensing and regulating family foster homes. Petitioners are applicants for a family foster home license. In February 2004, Petitioners initially sought to adopt a child, but, subsequently, changed the application to provide foster care for children. As part of the process, Petitioners attended an orientation conducted by Respondent's family services counselor and completed a screening questionnaire. As part of the application process, applicants are required to complete the Model Approach for Parenting (MAP) training, which includes classes to better prepare prospective foster and adoptive parents for the placement of children in their homes. The purpose is to ensure, prior to placement, that prospective parents work effectively as a team with each other and with Respondent. It is also important that they know and understand their rights and obligations that a stable environment be created for the children. As part of the MAP training and evaluation, prospective foster parents are required to complete a thorough background and history form. They are asked to give a complete life history, including prior relationships, marriages, customs, and culture. Both Petitioners completed the form. Petitioner Coby Lantz has been very supportive of his wife's desire to obtain a family foster home license and to provide care for foster children. He provided sufficient information in order for Respondent to complete his portion of the family assessment. Petitioner Coby Lantz completed the MAP training during this period. Petitioner Kim Lantz was given credit for completing the MAP training while married to her second husband, Darrell Palmer. Petitioner Kim Lantz completed the Adult's Personal Profile (for prospective mothers), consisting of 17 pages, plus a five-page, hand-written "Life Story." On page five of the profile, she was specifically asked to complete information on previous intimate relationships and former marriages. Petitioner Kim Lantz listed only one former marriage. She indicated she was married to Darrell Palmer from November 18, 2000, until his death on September 12, 2001. However, Petitioner Kim Lantz was, in fact, married to Robert D. Haynes in June 1991, separated two years later, and the final decree of divorce was entered on October 10, 1995. Petitioner Kim Lantz's explanation of this omission, while testifying at the hearing, was that she and her first husband married shortly after college. She stated, "[i]t was a high school sweetheart thing . . . he was not abusive to me. He did drink. We just grew apart. We divorced. That was it. It was like a guy I dated. He's not really anything to comment about. I moved on " These responses, along with other parts of her testimony, indicate that Petitioner Kim Lantz tends to suppress unpleasant memories from her past and to not deal with them effectively. Also, Petitioner Kim Lantz has not given a credible explanation of her complete omission of any reference to Haynes in her profile or "Life Story." In addition, it was only with excessive prodding that Petitioner produced a Certificate of Divorce from Haynes. These omissions and vague explanations have prevented Respondent from completing a thorough family assessment as required by Florida law. Petitioner Kim Lantz's second marriage to Darrell Palmer ended tragically on November 12, 2001. She was present with her husband in their apartment when local law enforcement came to their door. The law enforcement officers were seeking to determine the origin of bomb threats made to a local Dillard's department store. Apparently, they wanted to interview her, who was employed there at the time, and Palmer, a former employee. When Palmer, who was preparing a meal in the kitchen, opened the door with a kitchen knife in his hands, he was shot and killed by law enforcement. Petitioner was emotionally devastated by this event. At her parents urging, she returned to their home in upstate New York, where she received love and support from her family and her church. Petitioner Kim Lantz testified that she was diagnosed with post-traumatic stress disorder and received mental health counseling for two years and, also, received medication for this condition. However, Petitioners have provided only sketchy information concerning her current mental health status. While still in New York, Petitioners met at a church function, dated, and married and eventually moved to Cocoa, Florida. During the course of Respondent's family assessment, it was determined, in late March 2005, that Petitioner Kim Lantz was terminated at her place of employment, a daycare facility, on February 28, 2005. She failed to report this event and attempted to withhold this fact from Respondent. Her explanation to Respondent's investigator and her testimony at the hearing is not credible and amounts to a willful or intentional misstatement.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that Petitioners, Kim and Coby Lantz's application for a family foster home license be denied. DONE AND ENTERED this 28th day of October, 2005, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE 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 28th day of October, 2005. COPIES FURNISHED: Richard Cato, Esquire Department of Children and Family Services 400 West Robinson Street, Suite S-1106 Orlando, Florida 32801-1782 Kim Lantz Coby Lantz 6983 Dahlia Drive Cocoa, Florida 32927 Gregory Venz, 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
Findings Of Fact In August, 1980, the home of Jacob and Donna Vermeulen was licensed by Petitioner as a pre-school foster home. Under that licensure, the Vermeulens were able to care for children from birth to four years of age. The subject of this proceeding, hereinafter referred to as S.L., was born on May 26, 1976. When S.L. was four years old he and his younger sister were removed from the custody of his natural mother (after he witnessed the homicide by bludgeoning of his father by his mother) because S.L. and his sister had been physically abused by both natural parents. Petitioner placed S.L. and his sister into the Vermeu1en foster home. After S.L. and his sister had been living with the Vermeulens for approximately six months, Petitioner removed them from the Vermeulen home and returned them to the custody of their natural mother. After approximately six months, the two children were again removed from their natural mother since she again physically abused them. Petitioner requested the Vermeulens to again take custody of S.L. and his sister. The Vermeulens were reluctant to do so since both S.L, and his sister were now older than was allowed under the Vermeulens' license, and because S.L. had problems relating with the other foster children living in that home during his first stay there. However, Petitioner's social workers begged the Vermeulens to take the children back since Petitioner was unable to find any other placement for S.L. The Vermeulens agreed to make their home available to S.L. and his sister, and the two children thereafter lived in the Vermeulen home for approximately two and one-half years prior to April 16, 1984. S.L. is a difficult child to care for; he is very emotional, developmentally immature, fearful, and fidgety. He has difficulty sleeping or listening, has a very low self-esteem, and is unable to complete tasks since he becomes emotionally frustrated. Not only is S.L. a clumsy child (most probably due to medication), he also throws himself onto the floor and onto his toys, both as part of his aggressive play behavior and also in conjunction with throwing temper tantrums. S.L. initiates fights in school, on the school bus and at home with the other children in the Vermeulen home to such an extent that fighting somewhere would have been almost a daily occurrence. His excessive demands for attention were often accompanied by negative behavior, such as hitting other children and throwing temper tantrums. On December 21, 1983, S.L. was evaluated by psychiatrist Josephine Perez. Perez diagnosed S.L. as suffering from Attention Deficit Disorder with Hyperactivity. Perez determined that the high dosages of anti-psychoic medication that S.L. had been taking were inappropriate, and she prescribed different medication for him. Perez recalls that during S.L.'s initial evaluation in December she noticed that his legs and arms were filled with bruises. S.L. began treating weekly with Perez from January 16, 1984, until April 16, 1984. On each visit at least one of the Vermeulens was present, and each visit contained a seasion between Perez and the foster parent discussing the child's progress and training the foster parent in the use of behavioral modification techniques. During those several months S.L. appeared at Perez's office on one occasion with a black eye and on another occasion with a bruising above his eye. One injury resulted from a fall in the bath tub, and another resulted from a fall out of bed; both falls were probably attributable to changes Perez made in S.L.'s medication. The Vermeulens discussed both incidents with Perez since they were concerned that S.L,'s medication was still not in the proper dosage. The Vermeulens testified that sometimes when S.L.'s medication was changed, he was unable to control even his arms and was unable to sit still long enough to eat. In January, 1984, when S.L. began treating with Dr. Perez there were six children living in the Vermeulen home: four foster children, one adopted child, and one natural child. The Vermeulens and Dr. Perez discussed the number of children living in the Vermeulen home, which prohibited giving S.L. the excessive amount of time required by him to satisfy his need for attention. Perez told the Vermeulens that in her professional opinion S.L. should be in a home with no more than one other child. In turn, the Vermeulens told Perez that they had been requesting Petitioner to remove S.L. from their home out of their concern (1) for S.L. since he needed so much more attention than was available to him and (2) for the other children not only because S.L. would kick and hit them but also because the Vermeulens had discovered S.L. in his sister's bedroom standing over her with a knife in his hand on two occasions. Although Perez agreed that S.L. should be placed a different foster setting, she did nothing to assist in obtaining a different placement and did not discuss with any employee of the Petitioner ("HRS") her recommendation and the Vermeulens' desire that S.L. be placed in a setting, preferably, where he was the only child. The Vermeulens, however, continued to request of HRS employees, including the visiting social workers and medical personnel, that S.L. be removed from their home, with visitation rights being given to the Vermeulens if possible. During this time period the Vermeulens determined that they wished to adopt Michelle, a foster child in their care. On Friday, April 13, 1984, an HRS employee went to the Vermeulen home to discuss that petition for adoption and to advise the Vermeulens that HRS would not allow them to adopt Michelle. Mr. and Mrs. Vermeulen S.L., and the rest of the children living in the home were present during that discussion. The Vermeulens were advised that they would not be permitted to adopt Michelle so long as S.L. was living in their home since he is a "therapeutic foster child" and Petitioner's rules would prohibit the adoption while a "therapeutic child" was in the home. Mrs. Vermeulen was unable to understand Petitioner's position: its refusal to remove S.L. from her home after repeated requests and its refusal to allow her to adopt Michelle for the reason that S.L. was in her home. Mrs. Vermeulen became upset, and S.L. told her and Petitioner's employee to put him in a foster home indicating he would rather be sent away than prevent Michelle from being adopted by the Vermeulens. Since the HRS employee was having a difficult time discussing HRS's position, she left the Vermeulen home. On Friday, April 13, 1984, or on Monday, April 16, 1984, S.L. became involved in a fight on the school bus on the way home from school. The bus driver told Mrs. Vermeulen about the fight. On Monday April 16, 1984, Mrs. Vermeulen took S.L. to his weekly therapy session with Dr. Perez. During that session, S.L. indicated to Perez that he had been bad and had been "paddled" on the legs. He would give her no details, but Perez believed it was Donna Vermeulen who paddled S.L. Rather than discuss it with Mrs. Vermeulen, Perez acted as though nothing had been said. Further, although a medical doctor, she did not examine S.L. Instead, Perez discussed with Mrs. Vermeulen behavioral modification techniques to be utilized with S.L. and sent them home. She then telephoned HRS, and a child abuse report was completed. On April 18, 1984, an HRS employee went to S.L.'s school, removed the child from his class, and took the child to be examined by the Child Protection Team. S.L. was first examined by the nurse. When S.L. was unable to explain to the nurse from where each mark on his body originated (or refused to), she interrogated him with questions such as "Did your mommy hit you?" The nurse made notations on a chart indicating numerous marks or bruises on S.L.'s body. However, an HRS employee saw S.L. disrobed when he was being examined by the doctor on the team and saw only two marks on his lower back. Other HRS employees went to the Vermeulen home and removed all the children. No one discussed the incident or accusation with either Mr. or Mrs. Vermeulen until the following day. Until he was removed from her class on April 18, 1984, S.L. was taught by Debbie Froug an Exceptional Education teacher for emotionally disturbed children. Although Froug describes S.L. as a basically honest child, she testified that he sometimes gets very confused. A careful review of the videotaped testimony of S.L. and of the conflicting testimony of the witnesses in this case indicates that Froug's latter description is probably an understatement. No witness in this case heard the same explanation (or accusation) as any other witness. S.L's videotaped testimony illustrates why: there is no statement made by S.L. that is not contradicted by him a few seconds later. For example the videotaped deposition contains on page 27 the following: O. Did you ever have a black eye? A. No. O. Didn't you talk to Dr. Perez about having a black eye once? A. Yes, but I didn't. How did you get the black eye? One of the kids on the bus. Things stated in the affirmative by S.L. in his deposition are also stated in the negative in that same deposition. Further, it is sometimes impossible to ascertain if S.L. is describing being hit by his real father, by his real mother, or by his foster mother. Although no accusation appears to ever have been made, including in the Administrative Complaint, that Jacob Vermeulen ever struck S.L., by the time of S.L.'s deposition eight months after the alleged incident when S.L. was asked if Jacob ever hit him, that question was answered in the affirmative. In short, the evidence is clear that S.L. had some bruises or marks on his body on April 18, 1984; that those bruises or marks were both received accidentally and intentionally inflicted, and that the bruises or marks on S.L.'s body were received as a result of S.L. falling from being uncoordinated or overmedicated, from S.L. flinging himself onto the floor or onto or against objects, and from being hit or kicked by other children with whom S.L. engaged in almost-daily physical combat. Donna and Jacob Vermeulen used only approved behavior modification techniques with S.L. and did not hit S.L. with or without any object, spank S.L., or otherwise inflict physical abuse upon him. Although the Vermeulens' license as a foster home was in effect at all times material hereto, it has lapsed. A foster home license is not automatically renewed but rather requires an annual licensing study. Other than "the incident" charged herein the Vermeulens have received no prior complaints from HRS.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is REC0MENDED that a Final Order be entered dismissing with prejudice the Administrative Complaint filed herein and directing that any licensure study performed regarding the renewal or extension of Respondents' license be made omitting therefrom consideration of any of the matters set forth herein. DONE and RECOMMENDED this 19th day of July, 1985 at Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of July,1985. COPIES FURNISHED: Leonard Helfand, Esquire Department of Health and Rehabilitative Services 401 N.W. 2nd Avenue, Suite 1070 Miami, Florida 33128 Thomas J. Walsh, Esquire 590 English Avenue Homestead, Florida 33030 David Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
Findings Of Fact Respondents have cared for foster children for some twenty years. In November or December of 1975, they began with Christian Youth Care, Inc. (CYC), a foster home in Zephyrhills founded under the auspices of the First Baptist Church of Zephyrhills. Since then small groups of adolescent girls have lived with respondents and their teenage daughter, Dawn. In all, some 80 children have lived at CYC since respondents have had charge of the home. In July of 1977, petitioner placed June Holmes, who is deaf and dumb, with respondents. After June had been with the Houghs for two weeks or so, Lillian Parsons, a social worker in petitioner's employ, told Mrs. Hough that June should be wearing a hearing aid. June did not want to wear a hearing aid. She was also disappointed that Mrs. Hough would not take her to Daytona Beach; she became very upset, wielded a straightened safety pen and started knocking things off bureaus. When Mr. Hough served as a medical technician in the armed forces, unruly patients were sometimes wrapped in blankets. Perhaps remembering this experience, he enlisted Mrs. Hough in wrestling June to the floor, wrapping her in a blanket and securing the blanket with three belts. In the process, Mr. Hough said to June, "See how mad you can get." These events caused concern among the other children living in the home, who gathered to watch and, at respondents' suggestion, to say prayers. Mrs. Hough told June that she loved her. After June had lain bound in this fashion for 45 minutes, respondents released her. The following day Mrs. Hough called Mrs. Parsons to report the incident and to ask that June be placed in another home. Mrs. Parsons expressed no disapproval of respondents' method of restraining June nor did she tell them not to do it again. June remained with respondents until she left for boarding school in St. Augustine. When June returned to the Houghs from school on Easter vacation 1978, she wanted a new pair of shoes that cost $24.95. Respondents bought her a different pair instead. Easter morning June wanted to wear her old shoes, not her new shoes. This caused an argument. Mrs. Hough stayed home with June while Mr. Hough took the others to church. When Mrs. Hough began packing June's clothes into a suitcase, June was "worried that [respondents] would move [her] out." Deposition of June Holmes, p. 5. She walked outside and sat under a tree near the road. Mrs. Hough telephoned her husband and summoned him home from church. With the help of a deputy sheriff brandishing handcuffs, respondents coaxed June into their van and drove her up the driveway to their home. At first she refused to leave the van, so respondents went inside without her. When June eventually went inside, there was another confrontation. Mr. Hough wrestled June to the floor and sent Mrs. Hough for a blanket. After respondents wrapped June in the blanket and secured it with belts, Mr. Hough set off to retrieve the children he had left at church. After Mr. Hough returned with the other children, respondents unwrapped June and there was an Easter egg hunt. The next day Mrs. Hough called petitioner's offices in New Port Richey, then drove June to New Port Richey and left her there, because she wanted no more to do with her. When Mrs. Parsons learned that respondents had wrapped June in a blanket a second time, she asked to be relieved of responsibility for June. Eventually David J. Schultz, at the time a child welfare social worker in petitioner's employ, assumed responsibility for June; and June was again placed with respondents. Mr. and Mrs. Hough frequently communicated with guidance counselors and teachers at the schools children in their care attended. They made six visits to talk about Evelyn Ciacelli's progress with Ricky Rowell, guidance counselor at Woodland Elementary School in Zephryhills, and spoke to him on the telephone about Evelyn on several other occasions. Disappointed in Evelyn's progress with her homework one night, Mr. Hough picked her up and shook her. On another occasion, Evelyn and her roommate were wrestling in their room after they had been sent to bed. Mr. Hough heard them from the kitchen, walked into their bedroom with a spatula in his hand, and gave Evelyn, who was wearing a bathrobe over her nightgown, a swat on the rear with the spatula. On November 20, 1978, David J. Schultz left Petitioner's employ. He subsequently went to work for a corporation controlled by respondents and began living in their home. He lived there on December 13, 1978. On December 13, 1978, Bonnie Blair McKenzie, then employed by petitioner as a community youth leader, picked up Cindy Spickelmier at a shelter home in Dade City and drove her to respondents' home. Cindy, a 14 year old, was at the shelter home after having run away from another foster home, the Newmans'. She had lived with respondents previously and David Schultz also knew her. Shortly after Cindy's arrival, David Schultz was talking to her in the Houghs' living room, where she was sitting on a couch, crying. Also present were Mr. Hough, Ms. McKenzie, Nancy Newman, the foster mother who had previously had custody of Cindy, and Ed Springer, then the social worker in petitioner's employ responsible for Cindy's placement. Angry because Cindy was ignoring him, David Schultz grabbed the hair of her head, jerked her up into a standing position, had her bend over and lean against a desk for support, and struck her buttocks with a wooden paddle an inch thick. He administered the first blow with such force that Ms. Newman was frightened and Ms. McKenzie was "horrified and devastated." (T.52). Cindy fell to her knees, hysterical. Less forcefully, David Schultz struck her buttocks a second time. At the hearing Mr. Hough testified that: after Dave gave her the swats she sat back down and she was a new child. We were able to communicate with her and we thought we were really making good progress and being able to work with the child. That was the purpose of the new program and of course we were trying to set up parameters that would be beneficial to the child. (T.233). Notwithstanding this perceived improvement in Cindy's deportment, Ed Springer gave Cindy another spanking 30 or 45 minutes after David Schultz had finished. In the presence of Mr. and Mrs. Hough, and Mr. Schultz, Ed Springer struck Cindy five times on the buttocks with the same wooden paddle David Schultz had used, as punishment for running away from the Newmans' house. Later, on the evening of December 13, 1978, Cindy ran away from the Houghs'. She ended up at her mother's house where she spent the night. The next day her mother took her to the Pasco County Sheriff's Department. There Fay Wilbur an investigator for the Sheriff's Department, took photographs of Cindy's badly bruised buttocks. Petitioner's exhibits 3, 4 and 5. On the following day, December 15, 1978, Dr. Lena Ayala, a pediatrician, examined Cindy. She found large "[v]ery tender, painful" (T.55) hematomas covering the whole area of Cindy's buttocks. If she had seen a child in the custody of its natural parents in that condition, Dr. Ayala testified, she would have reported the matter to the child abuse registry. Petitioner discharged Ed Springer because of the beating he had administered to Cindy Spickelmier. Petitioner publishes a manual with a chapter entitled "Foster Family Group Homes for Dependent youth," Petitioner's exhibit No. 8. In part, the manual provides: 8.4.4 Unacceptable disciplinary approaches include: a. Corporal punishment--slapping, kicking, hitting, etc. * * * Humiliation, ridicule, sarcasm, shaming in front of the group or alone. Deprivation of essential needs such as food, sleep, or parental visits. Petitioner's exhibit No. 8, p.9. Although petitioner sometimes furnished foster group home licensees copies of its manuals, petitioner's files do not indicate that either Mr. or Mrs. Hough ever received a copy. Respondents wore unaware of the manual's contents on December 13, 1978; and David Schultz was also unaware of any policy against corporal punishment of foster group home children. Lorraine Cash, a foster mother in Pasco County, never spanked any foster child in her care over the age of eleven years. On the other hand, Henry Arnett, another foster parent in Pasco County, used corporal punishment in disciplining teen aged foster boys. He and his wife, Doris, were named foster parents of the year in 1978. On December 14, 1978, Joanne Wall telephoned respondents on behalf of petitioner and told Mr. Hough that David Schultz should be barred from their premises. When Mr. Hough protested that David Schultz lived on the premises, Ms. Wall asked Mr. Hough to keep David Schultz from working with the girls, which Mr. Hough agreed to do. On December 18, 1978, respondents submitted an application to petitioner for a child care center license, an application on which they had begun work considerably before December 13, 1978. Discouraged by the pace at which this application was being considered and by what respondents perceived as unfairness on the part of some of petitioner's personnel, Mr. Hough on February 15, 1979, told William Laing, a manager for petitioner, that he wanted all the foster children but two removed by five o'clock the following day, a Friday. Even though the agreement between petitioner and respondents called for two weeks' notice by the foster parents, petitioner's exhibit No. 6, Mr. Hough was unwilling to wait so long. Petitioner arranged to pick up all the foster children in respondents' care on the following day. Some of the children had not been told they would be leaving the Houghs' home. Respondents own improved real estate from which they derive rental income. In addition, CYC, funded by the First Baptist Church of Zephyrhills, paid respondents a salary. Occasionally, Mr. Hough worked outside the home. Pasco County contributed to the costs of caring for foster children. Respondents did not need moneys petitioner paid them on behalf of the children for their own personal purposes.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That, on the next anniversary of the date of respondents' original foster group home license, petitioner discontinue respondents' license for a period of one year. DONE and ENTERED this 19th day of June, 1979, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Barbara McPherson, Esquire Post Office Box 5046 Clearwater, Florida 33518 Robert L. Williams, Esquire Post Office Box 443 Dade City, Florida 33525
The Issue May the Department of Children and Family Services (DCF) revoke Respondent's foster home license for violating Section 409.175 (8)(b) 1., Florida Statutes, in that Respondent intentionally or negligently committed acts that materially affected the health and safety of children, to-wit: inadequate supervision of a minor child entrusted to her care?
Findings Of Fact R.G. is the biological mother of the infant female, A.G., born out of wedlock. R.G. gave birth to a male child before A.G. That son was taken away from R.G. by DCF. Both A.G. and R.G., while R.G. was yet a minor under the age of 18 years, were adjudicated dependent children, subject to placement by DCF, pending DNA testing of A.G. and two putative fathers. R.G. had been placed with a licensed foster home other than Respondent's licensed foster home. That home requested R.G.'s removal because R.G. would not follow its rules. R.G. with A.G., was then placed in the licensed foster care home of Respondent. Although the placement of A.G. with Respondent raised Respondent's home population to one more live foster child than Respondent's licensed capacity, a situation to which Respondent objected, DCF personnel informed Respondent that the infant A.G. would be counted as part of R.G.'s placement. Therefore, despite A.G. and R.G. being two separate persons, DCF would not consider Respondent to have exceeded her license's capacity. It was not explained on the record how DCF intended to pay board to Respondent for care of A.G., if A.G. were not considered a whole person, but it is clear that DCF personnel resented Respondent's asking how she would be compensated for A.G.'s care. At all times material, R.G. and A.G. were subject to a Circuit Court Order which permitted only "unsupervised day visitation" by R.G. with A.G. (Emphasis in the original). By implication of the Circuit Court Order, and by her own understanding from instructions by DCF personnel, Respondent knew that R.G., the minor mother, was not permitted to have unsupervised night visitation with the dependent infant, A.G. DCF's and Respondent's understanding of the Circuit Court Order was that Respondent, R.G., and A.G. were required to be in Respondent's home after dark, but Respondent was not required to "eyeball" R.G. and A.G. all night, every night, while they were present in Respondent's foster home. Gracie Rager, DCF foster care worker, authorized Respondent to allow R.G. to take A.G. out of Respondent's foster home during the day for unsupervised visitation. Ms. Rager also authorized Respondent to allow R.G. to take A.G. to R.G.'s older natural sister's home to spend some nights, including weekends. R.G.'s older natural sister was married and licensed for foster care. Accordingly, DCF personnel, including Ms. Rager, presumed that the older sister was sufficiently responsible and qualified to provide supervision of R.G. and A.G. at night. DCF reasonably concluded that R.G.'s presence with A.G. in her sister's home at night would constitute supervised night visitation and comply with the Court's Order. Ms. Rager never authorized Respondent to allow R.G. to take A.G. out at night by herself, but Ms. Rager reasonably saw no impediment, including the Circuit Court Order, to R.G. taking A.G. with her anywhere she wanted to take the baby during the day. R.G. openly resented being placed with Respondent because Respondent is Black. R.G. wanted to return, with A.G., to a white foster home placement. As a result, R.G. was never cooperative with Respondent. When R.G. turned 18 years of age, she became openly defiant of Respondent. R.G. insisted that she alone, would do everything for A.G., who was still under two years old. R.G. refused all assistance from Respondent concerning A.G. Respondent asked DCF to remove R.G. and A.G. or at least A.G., from her foster home. DCF had no other placement for them and asked Respondent to keep them until another placement was found. R.G. had a part-time day job. To get there, she would "catch a ride" with others. She would not accept a ride from Respondent. Sometimes, R.G. would take A.G. with her to work and go directly from work, with A.G., to her older, licensed sister's home. On these occasions, R.G. and A.G. might be gone for a night or a weekend. When R.G. did not return to Respondent's foster home, Respondent sometimes called R.G.'s older, licensed sister's home to be sure that R.G. and A.G. had arrived there safely. Sometimes, Respondent asked this sister to call her when R.G. and A.G. arrived. However, Respondent did not always contact R.G.'s older, licensed sister or otherwise check-up on R.G.'s and A.G.'s whereabouts overnight or over a weekend. When R.G. and A.G. returned after a night or weekend away, Respondent did not always check up on where they had been. Respondent was under the impression that a different, adult sister of R.G.'s was also a suitable adult supervisor for after dark, even though that sister was not licensed for foster care. Indeed, there is nothing in the Circuit Court Order requiring that supervised night-time visitation of R.G. with A.G. could not be undertaken by any other adult, regardless of whether that person were licensed for foster care. Respondent never checked to see if R.G. and A.G. were with R.G.'s unlicensed sister. At no time did Respondent report to law enforcement or DCF that R.G. had gone off and failed to return or that R.G. was taking A.G. away on weekends. At some point, R.G.'s authorized and licensed older sister called Ms. Rager and said R.G. had taken A.G. out all night with R.G.'s boyfriend and had not returned. It is unclear from Ms. Rager's testimony whether R.G.'s and A.G.'s departure point for their night or weekend of unsupervised visitation was Respondent's home or R.G.'s licensed sister's home. On February 9, 2001, Ms. Page, a DCF protective investigator, responded to an abuse hotline call and met with Respondent in the lobby of a DCF facility. During her interview of Respondent, Ms. Page knew nothing of where either R.G. or A.G. had been picked up, or how long they had been unsupervised at night, but Ms. Page "understood" from Ms. Rager that R.G. and A.G. had been removed from Respondent's home and that Respondent had come to the DCF facility voluntarily. Ms. Page was particularly concerned because of a comment Respondent made in the course of this interview, to the effect that Respondent guessed she had "handled it all wrong" because she had only asked to have the baby, A.G., removed from her care instead of reporting R.G.'s rebelliousness. DCF Investigator Page testified that she "verified" in an abuse report that Respondent was guilty of neglect by failure to notify authorities of R.G.'s unsupervised night visitation with A.G. There is insufficient evidence to determine of Respondent ever had a chance to challenge the abuse report or if the report was ever "confirmed." There is no evidence R.G. or A.G. suffered harm as a result of this incident.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Department of Children and Family Services enter a final order dismissing charges against Respondent and restoring her foster care license. DONE AND ENTERED this 7th day of October, 2001, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of October, 2001. COPIES FURNISHED: David West, Esquire Department of Children and Family Services Post Office Box 390, Mail Stop 3 Gainesville, Florida 32602 Dr. James Brant, Qualified Representative 1140 Durkee Drive, North Jacksonville, Florida 32209 Cheryl Smith Post Office Box 1053 Lake City, Florida 32056 Virginia A. Daire, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
