The Issue The issue is whether the Respondent, Department of Juvenile Justice is entitled to repayment for a salary overpayment made to Petitioner.
Findings Of Fact The Department is charged with planning, coordinating, and managing the delivery of all programs and services within the juvenile justice continuum. Mr. Young was an employee of the Department during times pertinent. The Department pays its personnel every two weeks. During pay periods ending January 1, 2004; January 29, 2004, February 12, 2004; and February 26, 2004, Mr. Young, perhaps believing he could be absent using leave from the sick leave pool, did not work and did not qualify for the salary payments he received. Because state salary warrants are paid by exception, he received payments even though he did not submit a time sheet. Subsequently the Department prepared time sheets for Mr. Young. He did not sign these time sheets. By November 3, 2005, the Department determined that five warrants had been issued inappropriately and that he owed the State of Florida $3,875.34. Subsequently, the Department reviewed the records, and after taking into consideration Mr. Young's annual leave and the federal tax paid on his behalf, determined that he owed $2,214.12. The Department, through personnel records, demonstrated that this money was paid in error and should be returned by Mr. Young. Nothing in the evidence indicated otherwise.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered stating that Charles D. Young, II, owes the State of Florida $2,214.12, and requiring the repayment of said sum forthwith. DONE AND ENTERED this 26th day of July, 2006, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 26th day of July, 2006. COPIES FURNISHED: Mary Linville Atkins, Esquire Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100 Charles D. Young, II 5364 Young Lane Marianna, Florida 32448 Anthony Schembri, Secretary Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100 Jennifer Parker, General Counsel Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100
Findings Of Fact In March of 1987, the Petitioner, Mitchell M. Green, was employed with the Department of Health and Rehabilitative Services as a child support enforcement investigator. He had been employed by the Department since 1982. On March 17, 18 and 19, 1987, the Petitioner did not report for work, and did not call in to any of the persons who supervised him to explain his absence. Previously, the Petitioner had not requested leave for March 17-19, and leave had not been authorized. On March 20, 1987, the Department notified the Petitioner that his failure to report for work on March 17, 18 and 19 when he was scheduled to work, without contacting his supervisor, and without authorized leave, constituted abandonment and resignation from the position under Rule 22A-7.010(2), Florida Administrative Code, and that his employment was terminated. The Petitioner was aware of the abandonment provision in the Department's rules. He had acknowledged receipt of a copy of the Department handbook containing these rules on July 8, 1986. The testimony of the Petitioner, his father, and his mother established that the Department had given the Petitioner an "Exceeds Performance Standards" rating on his last evaluation, that the Petitioner had been diagnosed as having cancer in February of 1985, that the Petitioner had requested leave in January, 1987, but was refused because he had no more leave, and that the Petitioner was upset about conditions at work. These factors are irrelevant, however, because they do not excuse or justify a failure to report to work without obtaining authorized leave or notification that assigned work will not be performed because of absence.
Findings Of Fact Jimmie Ray Brown is, by occupation, normally a merchant seaman. However, pending a resolution of the situation forming the basis for this hearing, he is currently working ashore. Mr. Brown has custody and control, by court order, of two children, Linda Marie (Age 8) and James Henry (Age 5) Martin. Mr. Brown has filed for adoption of both children. A home study has been done and the natural mother of the children, who is presently in the penitentiary, has consented to the adoption. In Mr. Brown's opinion, only the home study report is holding up consummation of the adoption. No evidence to contradict this was submitted either by DHRS or the Guardian ad Litem (GAL), but so far, the petition has not been granted. Mr. Brown knows the Petitioner and requested her to live in his trailer home, located in Okaloosa County, to care for the two minor children while he is at sea. In order to do this properly, Petitioner, on January 14, 1985, applied for a license to run a foster care home. At that time, she was not living in Brown's home but, instead, was living with her sister- in-law in the house on the lot in front of Mr. Brown's trailer. When Petitioner filed her application for license as an foster parent, under the rules and regulations of DHRS, various investigative steps were taken including, among other things: a sexual abuse check, a foster home study, and a law enforcement registry records check. The abuse registry check, completed on January 31, 1985, indicated no record of abuse, neglect or exploitation was on file in the Florida Abuse Registry involving Ms. Robinson. The foster home inspection report from a sanitation standpoint was determined to be satisfactory on January 11, 1985; the physician's report on Petitioner, done on January 17, 1985, reflected that she was free from communicable diseases and in good physical condition her references were acceptable, and the home study report, entered by Mr. Thomas Goodwin on March 4, 1985, recommended that Petitioner be licensed as a foster parent by the State of Florida to care for James and Linda Martin in the trailer home furnished by Mr. Brown. All of this information was evaluated upon submission by Dorothy S. Turner, a program analyst in the program office of Respondent's Pensacola office. Her job includes the review of and recommendation on applications for licensing of foster Homes in that district. Based on the information submitted with Petitioner's application, Mrs. Turner concluded that Petitioner would be acting as a foster parent in Brown's home for two children, at least one of whom was not related to Mr. Brown. Based on this information, and because she did not have sufficient knowledge of Mr. Brown's status and living arrangements, applying the standards for foster home in DHRS Rule lOM-6.05, Mrs. Turner decided to grant a provisional license for a three-month period. Also, according to the information she had, there was no current proper petition for adoption pending at that time. Even though Mrs. Turner approved a three-month provisional license, her secretary prepared all the paperwork relative to the issuance of a standard one year license (non- provisional) and so notified the Petitioner. The file was forwarded to the District Supervisor without again being reviewed by Mrs. Turner, and the non-provisional license was issued along with all the collateral documentation. Once the non-provisional license had gone out, however, Mrs. Turner saw the completed work and was upset by the fact that the wrong license had been issued. At no time was it her intention to issue other than a three-month license. Approximately one week after the issuance of the original license, corrective action was taken and Petitioner was issued a three-month provisional license. Petitioner appealed this decision and the matter was referred to the Division of Administrative Hearings for resolution. However, prior to the DOAH hearing, a hearing was held in Circuit Court on April 30, 1985, at which, for reasons not put in evidence at this hearing, the Judge issued an order which, inter alia, directed that the children have no contact with the Petitioner and that she vacate Mr. Brown's home. Based on this order, Mrs. Turner did nothing further regarding Petitioner's license. She could have and she should have requested Petitioner return the provisional license on the basis of the court's order but did not do so. Petitioner has not made application for a new license subsequent to that time. The evidence indicates that at the time in question between January, 1985 and the time of the April 30 hearing, Petitioner was not living in Mr. Brown's trailer but, as was stated previously, in her sister-in-law's home in front of the trailer. The trailer was occupied by Mr. Brown and the two children. Petitioner would visit there and take care of the children when Mr. Brown was not present, and, during the Easter vacation in April, 1985, when the children were out of school, she did, in fact, for the one week period, live in the trailer with Mr. Brown and the children. Since a license can be issued only to a person living in the foster home, Mrs. Turner assumed that was where Petitioner was living, though this was not so. Based on the information available on the application form, and applying the standards set for evaluation of foster homes, Mrs. Turner could not have approved a one year license because Mr. Brown was living in the home with Linda Martin. Though he had filed a petition for her adoption the petition required amendment and was not, therefore, an "in process" petitioner. Because Mrs. Turner wanted additional clarification of Mr. Brown's status, she granted the three-month license. According to Mrs. Turner, her interpretation of the rule in question indicates that a non-resident can reside in the foster home only for 90 days. Since Mr. Brown was not a relative to Linda Martin, he therefore was required to vacate the property within 90 days or have a proper petition for adoption in process. In short, according to Mrs. Turner, all these questions regarding Mr. Brown's status appeared unanswered and Mr. Brown made no effort to explain or provide answers. It is clear that no one from DHRS asked him any questions either. Nonetheless, as a result of the lack of answers, Mrs. Turner was using the 90 days provisional license period to provide time for the unanswered questions to be resolved.. The decision was based entirely on the information contained in the application submitted by Ms. Robinson and by Mrs. Turner's or her subordinates' observations of the situation. Very little effort appears to have been made to clarify Mr. Brown's status or, for that matter, that of Ms. Robinson. No questions were asked of anyone whether Mr. Brown was going back to sea, and if so, when, and no attempt was made to verify whether or not Ms. Robinson was living in the house. Assumptions were made and decisions based on those assumptions which, unfortunately, were not verified or clarified. According to the GAL, Mrs. Phillips, the adoption of Linda Martin by Mr. Brown has not yet been granted. As GAL, Mrs. Phillips is required to advocate the best interests of the children for whom she works and does investigations, visits with the children and their caretakers, writes reports, and submits recommendations as to what she thinks is the best action to be taken on behalf of the children. In this case, Ms. Phillips, who is not employed by or affiliated with DHRS, talked with Mr. Brown and Petitioner on several occasions. One subject for discussion was the living arrangements of Brown and Petitioner. At the time of the first inquiry, Petitioner was living with her sister-in-law whose home as was stated previously, was located in front of Mr. Brown's trailer. In April of 1985, Petitioner told Mrs. Phillips she was living in Mr. Brown's trailer because it was convenient for taking care of the children. This is not inconsistent with Mr. Robinson's testimony that during the Spring vacation in April, 1985, for the one week period, she did live there but that at all other times, she did not live in Mr. Brown's trailer. Mrs. Phillips was familiar with Mr. Brown's seagoing activity. In their discussions, Mr. Brown indicated to her that he would be away four to six months out of the year. The remaining time, he said, he would live in the home with the children and when he was living there, Petitioner would move out. The four to six months of absence would not all be contiguous but might be split up over several trips. In the two reports submitted to the court as Guardian ad Litem on this case, Mrs. Phillips failed to address Petitioner's suitability as caretaker for these two children and no evidence was brought out at the hearing what her current opinion was. She did not indicate approval, but more significantly, neither did she indicate disapproval. As the advocate for the minor children, it seems only reasonable that if she did not approve of Petitioner, she would have said so since the best interests of the children were at stake. After Petitioner was ordered out of the Brown trailer in April, 1985, Mr. Brown made arrangements for another individual to care for the children. This individual has applied for a foster care license based on her status with the children.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent, Department of Health and Rehabilitative Services, deny Petitioner, Lydia Robinson, the one year foster care license. RECOMMENDED in Tallahassee, Florida, this 10th day of September, 1985. ARNOLD H. POLLOCK 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 10th day of September, 1985. COPIES FURNISHED: William D. Barrow, Esq. P. O. Box 486 Crestview, Florida 32536 Linda K. Harris, Esq. District Legal Counsel 160 Governmental Center Pensacola, Florida 32576 John O. Stapleton, Esq. 514 N. Baylen Street Pensacola, Florida 32501
The Issue The Petitioner has applied for exemption from disqualification for licensure as a foster parent. The Respondent has denied the application. The issue in the case is whether the Petitioner’s request for exemption from disqualification should be approved.
Findings Of Fact On April 26, 1991, Joan Goldhammer (Petitioner) entered a plea of nolo contendere to the offense of grand theft in Case Number 91-1131, Circuit Court, Thirteenth Judicial Circuit, Hillsborough County, Florida. As a result of her plea, the Petitioner was placed on probation for 15 years, was ordered to complete 250 hours of community service, and was ordered to continue with counseling. The court withheld an adjudication of guilt. The Petitioner was also ordered to make restitution in the amount of $24,408 to the victim of the theft. The Petitioner continues to make restitution and has approximately five more years of scheduled payments before restitution will be completed. The Petitioner’s probationary period is continuing. She has performed the required community service requirement and has completed the counseling. There is no evidence that the Petitioner’s compliance with the terms of her probation has been other than appropriate. Early in 1999, the Petitioner began the process of becoming licensed by the State of Florida as a foster parent. The impetus for her application to become licensed as a foster parent was the suggestion by her pastor that she foster a child with whom the pastor was familiar. She completed the application process. Both she and her husband completed a state-mandated training course (MAPP-Model Approach to Partnership in Parenting). As part of the application process, the Petitioner was fingerprinted and a criminal background check was conducted. The Petitioner’s uncontradicted testimony was that she disclosed the 1991 incident to investigators at the time of the application process. The Respondent asserts that the information was revealed as a part of the criminal background check. There is no evidence that the Petitioner ever attempted to conceal the 1991 incident. Licensure as a foster parent is a "position of special trust" as defined by Florida statute. Based on the 1991 incident, the Respondent notified the Petitioner that she was disqualified from holding a "position of special trust" and therefore was ineligible for licensure as a foster parent. The Petitioner filed a request for exemption from the disqualification. By letter dated March 23, 1999, the Respondent denied the request for exemption from disqualification. The March 23 letter cites the statute that governs the granting of exemption from disqualification. As grounds for the denial of her request for exemption, the letter states as follows: It is the District’s policy that individuals currently serving a probation sentence, recently released for less than one year (misdemeanor offense), or for less than three years (felony offense), cannot demonstrate that they meet this standard. Consequently, your request for exemption from disqualification has been denied. There is no credible evidence supporting the policy stated in the March 23 letter. The Respondent’s sole witness acknowledged that the District Administrator established the District Five policy, and that each of the Department’s 15 District Administrators may have established different policies. The statute governing exemptions from disqualification provides that the applicant must provide "sufficient evidence of rehabilitation" and includes specific factors that should be considered. At the time of the 1991 offense, the Petitioner was a single mother, was newly divorced, was raising three children, and was financially needy. For various reasons, she was unable to take advantage of public assistance programs. Her employment provided access to the financial records and accounts of her employer. She took advantage of the situation and embezzled money from her employer, to whom she continues to make restitution. Other than the 1991 incident, the Petitioner has had no criminal involvement. Although the embezzlement was clearly illegal and inappropriate under any circumstances, the sole harm to the victim of her crime was financial loss. She has consistently met her obligation to make restitution of the money she embezzled. There is no evidence of any kind that the Petitioner currently poses, or has ever posed, a danger to any child.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Children and Family Services grant the request of Joan Goldhammer for exemption from disqualification. DONE AND ORDERED this 25th day of August, 1999, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of August, 1999. COPIES FURNISHED: David L. Partlow, Esquire David L. Partlow, P.A. Transworld Center, Suite 210 4100 West Kennedy Boulevard Tampa, Florida 33609-2244 Frank H. Nagatani, Esquire Department of Children and Family Services 11351 Ulmerton Road, Suite 100 Largo, Florida 33778-1630 Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John S. Slye, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether Petitioner's application for a family foster home license should be granted by the Department of Health and Rehabilitative Services (hereinafter referred to as the "Department")?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Petitioner previously served as a foster parent from late 1990 until November of the following year. The foster children entrusted to her care during this period of time were four preadolescent sisters, Z.C., A.C., F.C. and W.C., who are now five, seven, nine, and eleven years of age, respectively. Before assuming her responsibilities as a foster parent, Petitioner was provided with, among other things, two acknowledgment forms, which she subsequently signed and returned to the Department. One of the forms related to screening requirements and provided as follows: I, (We) , foster parent(s), understand that anyone who resides in my foster home and is over the age of 18, must be fully screened according to federal requirements. I, (We), understand that screening requirements also apply to anyone I, (We) might use as a baby-sitter. I understand that failure to have applicable persons screened may result in the revocation of my foster home license. I, (We) further understand that any changes in my (our) household composition must be reported to HRS. Screening Requirements Fingerprinting 3 personal references Employer reference Consent form Police clearance Abuse Registry clearance Affidavit of Good Moral Character Discipline Statement FOSTER MOTHER DATE FOSTER FATHER DATE The other form concerned disciplinary measures. It provided as follows: FOSTER PARENT(S): You are aware that for some time, Health and Rehabilitative Services has discouraged the use of physical punishment, including spanking, for children in foster care. Now, however, we have an Administrative Rule statewide which prohibits foster parents from using corporal punishment on foster children. The section of administrative Rule 10M-6; which deals with discipline, is reproduced in the following paragraph: "Licensing and relicensing procedure developed by the Department shall include the presentation of written foster care disciplinary policies to applicants and licensed foster parents to ensure that appropriate nonabusive disciplinary practices are used in dealing with foster children's behavior. Discipline is a training process through which the foster child develops self- control, self-reliance and orderly conduct necessary for them to assume responsibilities, make daily living decisions and live according to accepted levels of social behaviors. The purpose of discipline is education and rational. It focuses on deterring unacceptable behavior by encouraging the child to develop internal controls. Foster Parents are expected to define rules which establish limits and types of acceptable behavior. These rules must be clearly explained to each child and applied equally to all children. Prohibited disciplinary practices include group punishments for misbehavior of individuals; withholding of meals, mail or family visits; hitting a child with an object; spanking a child; physical, sexual, emotional and verbal abuse; humiliating or degrading punishment which subjects the child to ridicule; being placed in a locked room; and delegation of authority for punishment to other children or persons not known to the child. The use of isolation shall be used only for short periods of time as a therapeutic measure when a child's behavior is temporarily out of control. Such periods of isolation shall be observed and supervised by the foster parent to ensure the safety of the child." If you have problems with this new rule, please discuss this with your licensing counselor who will be able to help you work out alternative disciplinary techniques for each child, according to his/her needs. My signature acknowledges that I have read this statement, that I understand the content, and agree to abide by it. FOSTER PARENT DATE FOSTER PARENT DATE During a ten-week training course that she attended prior to becoming a foster parent, Petitioner was further advised of the Department's prohibition against the use of corporal punishment as a means of disciplining foster children. Notwithstanding her awareness of this prohibition, on various occasions during the period of time that she was providing foster care, Petitioner hit her foster children with a belt-like instrument to punish them for their misconduct. On a regular basis, Petitioner had her cousin, Sharon Walker, baby-sit for the children. Walker was not licensed to provide foster care. Furthermore, Walker had not been screened by the Department to determine her fitness to serve as a caretaker for foster children, and Petitioner made no effort to initiate the screening process. Walker was not compensated for her baby-sitting services, although Petitioner did provide her with food and money for the children. Walker baby-sat for the children approximately 100 hours per month. There were times that she had them under her care and supervision for an entire weekend. One such weekend was the weekend of November 16 and 17, 1991. On Tuesday, November 19, 1991, the Department received a report from the nursery school that Z.C. attended that Z.C. had come to school with "a number of unexplained injuries this year," including the "bruises on her leg and on her buttocks" that were observed by the reporter that day. The reporter indicated that she suspected that Z.C. was "being abused." Upon receiving the report, the Department removed Z.C. and her three sisters from Petitioner's home and commenced an investigation of the matter. Beverly Johnson Stevens, a child protective services investigator with the Department, was assigned the investigation. As part of her investigation, Stevens made arrangements for Z.C. and her sisters to be given complete physical examinations at the Broward County Sexual Assault Center (hereinafter referred to as the "Center"). Z.C. and A.C. were examined at the Center on November 20, 1991. Their older sisters were examined at the Center six days later. Z.C.'s and A.C.'s examinations revealed that they had bruises and "fresh" linear marks (i.e., linear marks no more than five days old) on their bodies. F.C. and W.C., it was discovered, had linear marks on their bodies as well, but these marks were not "fresh." Based upon the results of the examinations, as well as the interviews she had conducted with the four children, Stevens determined that the case should be closed as "proposed confirmed." Z.C., A.C., F.C. and W.C. were named as the alleged victims in Stevens' "proposed confirmed" report of abuse. Petitioner and Walker were named as the alleged perpetrators in the report. Petitioner requested an administrative hearing on the proposed classification of the report. The case was thereafter referred to the Division of Administrative Hearings and docketed as DOAH Case No. 92-5694C. On January 21, 1993, before any administrative hearing had been held, the Department and Petitioner entered into a settlement agreement, which provided as follows: COMES NOW, the Petitioner, the Department of Health and Rehabilitative Services, by and through its undersigned counsel, WILLIE LAWSON, and the Respondent F.D.A., jointly stipulate to the following final settlement of the instant cause: Respondent's child abuse report shall be amended to read "Closed Without Classification." The Respondent's child abuse report of "proposed confirmed," shall be deleted and the Respondent, F.D.A., shall be removed from the child abuse registry. The Respondent, F.D.A., individually and on behalf of the minor children, hereby releases the Department of Health and Rehabilitative Services from any claims, demands, actions, judgments and executions which F.D.A. ever had or now has against the Department of Health and Rehabilitative Services arising out of the events which gave rise to this cause of action or any event prior to this date. In accordance with the settlement agreement, the Department filed the following Notice of Dismissal in DOAH Case No. 92-5694C: The Department of Health and Rehabilitative Services hereby gives notice of its decision to abandon the prosecution of this cause. The report of abuse and/or neglect is closed without classification. The basis for this dismissal is that a settlement has resolved all disputed issues. Following the Department's reclassification of the report, Petitioner made the request, which is the subject of the instant case, that she be allowed "to re-open [her] foster home."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Health and Rehabilitative Services enter a final order denying Petitioner's application for a license to operate a family foster home. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 15th day of February, 1994. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of February, 1994.
The Issue Whether level 2 screening pursuant to Section 435.07, Florida Statutes (2003), mandates denial of an application of a potential foster parent who has a prior DUI-manslaughter conviction.
Findings Of Fact Based upon observation of the witness and his demeanor while testifying in person and the documentary materials received in evidence, official recognition granted, evidentiary rulings during the final hearing, and the entire record complied herein, the following relevant and material facts are found: Petitioner, D.S., applied to become licensed as a foster parent with the Department on July 11, 2003. However, Petitioner is not seeking nor requesting that the Department assign foster children to his home, should his application be granted. Petitioner is seeking to become the foster parent of his nephew, C.N.L., a 16-year-old male. After the death of his mother, more than five years ago, C.N.L. was moved in with Petitioner who has continuously provided shelter, supervision, care, and support for his nephew. Petitioner is now seeking to become the foster parent of his nephew because C.N.L. is the age (16) where "authority of a parent or guardian" will be necessarily required in his future. Other than Petitioner, C.N.L. has no other known relatives and has not been adjudicated or declared a dependent child pursuant to Section 39.507, Florida Statutes (2003). There is no other pending action by the Department regarding this minor child except the issue under consideration in this cause. The Family Profile form submitted by Petitioner detailed his current family information. Therein, Petitioner listed himself, white male, divorced, as prospective parent 1, and Daniel Walrad, white male, single, as prospective parent 2. Petitioner included therein, and acknowledged at the hearing, that as the result of one automobile accident that occurred on December 17, 1989, of which Petitioner was the driver, the passenger in the vehicle died. As a result, Petitioner was found guilty and convicted of a felony. Law enforcement did not arrest Petitioner at the time of this accident but charged Petitioner with felony DUI-manslaughter. With private counsel, Petitioner entered a nolo contendere plea to the charge of "homicide"-negligent vehicle manslaughter, Section 316.193, Florida Statutes (1989). The Circuit Court, Ninth Judicial Circuit, Orange County, Florida, accepted the plea of Petitioner, entered an adjudication of guilt, and convicted Petitioner on the charge. The Court sentenced Petitioner to and he successfully completed five years of probation and two years of community control. Petitioner, as a demonstration of his remorse and rehabilitation, has not drunk alcohol since the accident 13 years ago. As evidence of his commitment to caring for his nephew, Petitioner is currently attending Model Approach to Partnership in Parenting (MAPP) classes that are required for potential foster parents. Petitioner, with the understanding that C.N.L. has not been declared a "depending child" and is, therefore, not registered in the Department's system as a dependent child, concluded that he is free to and would, should the Department deny his foster parent application, move his current family, including C.N.L., to the State of New Hampshire. The above Findings of Fact are undisputed by either party to this proceeding.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services issue a final order denying the application of Petitioner, D.S., to be licensed as a foster parent. DONE AND ENTERED this 17th day of December, 2003, in Tallahassee, Leon County, Florida. S FRED L. BUCKINE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of December, 2003.
The Issue Whether the Department of Children and Family Services (DCF) may revoke Respondent's family foster home license for inflicting physical, oral, and emotional abuse on three foster children in her care, as more particularly stated in FAHIS Report No. 2000-172767; intimidating the children to ask that visits with their parents be stopped; and having sufficient income, pursuant to Chapter 65C-13, Florida Statutes.
Findings Of Fact Insufficient Income Respondent Nedra Street has held a Family Foster Home License since July 6, 1998. At the time she was licensed, DCF did not disqualify her application because she was between jobs. DCF was aware she was living on unemployment compensation and child support for her natural son, D. DCF has no rule establishing strict economic parameters for foster home licensees. Its rule only requires that foster parents have sufficient income to absorb four to six weeks of a foster child's care until a board payment is received. This requirement is to ensure that foster parents will not divert board payments for foster care children to their own needs and so that they will spend the board payments on the foster children entrusted to their care. So far as the testifying DCF supervisor knew, no foster care license ever has been revoked for insufficient income. When Respondent was licensed, she was not required to submit a budget. No rule requires that an applicant or licensee submit a budget. However, DCF personnel currently requires that applicants submit a budget, and DCF reviews the applicant's stated income and expenditures. What formula, if any, DCF uses for this review was not disclosed. Because DCF has never asked Respondent for a budget, it has never analyzed her income and expenditures in any detail. Respondent, with her elderly mother, own and live on a 60-acre farm. They support themselves by raising cattle, by growing timber for sale, and by leasing their peanut allotment. Their home, its contents, and real property are owned free and clear. Respondent holds a B.S. degree in elementary education and is Florida-certified to teach elementary school. She also is a Certified Nursing Assistant and a Certified Medical Assistant. At all times material, she was working only part- time "as needed" in a delicatessen, so that she could devote more time to her natural son and her foster children. As of the date of hearing, she was employed at Shands Medical Center. Respondent successfully fostered six other children before the three children who are the focus of this case. There is no credible evidence that she short-changed DCF or any child as to food, clothing, or shelter. In making the foregoing finding, I have considered Taleca's deposition testimony that Respondent gave no food to the three children over any weekend, "No, never one of us," and find it not credible upon the evidence as a whole. Indeed, all other witnesses testified that at all times material Respondent fed the children adequately and kept Taleca, Michael, and Yana, clean, well-groomed, and well- dressed, either by purchasing their clothing new, or by receiving good quality clothing from one or another public or private source. Oral and Emotional Abuse; Intimidating the Children to Ask that Visits With Their Parents Be Stopped Foster parents are required to be supportive of the foster child's birth parents by not saying demeaning or degrading things about them to the child and by being supportive of the family of origin. At some times material, it was DCF's policy to urge contact between Taleca, Michael, and Yana and their natural parents and to work for ultimate reunion. During the material period of time, Respondent and teachers reported to counselors that Taleca's, Michael's, and Yana's behavior changed for the worse and remained bad for as long as four days after each supervised visitation with their natural mother. At some point, Respondent urged DCF counselors and the school counselor, Lynne Holston, to stop the visitations. While there was no proof that Respondent ever encouraged reunion of Taleca, Michael, and Yana with their natural mother or father, likewise, there was no credible or reliable evidence she ever demeaned the parents to the children. In making the foregoing finding, I have discounted as not credible Taleca's vague testimony concerning either inquiries or statements by Respondent about the natural parents' prior abuse of the children or failure to feed them. Inflicting Physical Abuse on Taleca, Michael, or Yana By rule, DCF prohibits foster parents from administering corporal punishment to foster children. Foster parents annually sign the disciplinary policy on this prohibition. Respondent received training prior to becoming a foster parent, which included this prohibition. She was clearly aware she was not permitted to use corporal punishment on foster children. Foster children Yana (four years old), Michael (six years old) and Taleca (10 years old) are siblings who were placed in Respondent's family foster home on July 28, 1999. They remained in Respondent's care for more than a year until November 3, 2000, when they were removed by DCF as a result of allegations of physical abuse. When removed from Respondent's care in 2000, Taleca and Michael bore many scars and bruises, most of which would not normally have been seen under ordinary clothes, but some of which might be visible if the children were wearing shorts. When placed with Respondent in 1999, all three children had been physically abused by one or both natural parents. According to Advanced Registered Nurse Practitioner Linda Cox Ebbeling, Child Protection Team (CPT) records show referrals of Michael to DCF in 1995, when he was 17 months old and while he was still living with his natural mother, for his being hit in the face and head and for bruises from a metal- tipped belt, and later the same year for a broken arm. All three children had one or more psychiatric issues to resolve when they were placed with Respondent in July, 1999. Michael, particularly, was hyperactive, aggressive, and violent towards other children when placed with Respondent. He was particularly violent toward his younger sister Yana, but as one counselor testified, "Yana was gaining on him quickly." A kindergarten teacher described Michael as being unable to be touched without his jerking away when he first entered her class in August 1999, a few days after being placed with Respondent. Lynne Holston, M.S.W., is a child therapist of 23 years' experience and a registered play therapist. Taleca relied on Ms. Halston for comfort and moral support during her testimony at hearing. Ms. Holston worked regularly with Respondent and the three children at Joyce Bullock Elementary School from the end of September 1999 until August 2000. She found Respondent responsive to her suggestions and proactive in getting all the necessary assessments (medical, psychological, and educational) necessary so that Michael could qualify for an appropriate Individual Education Plan (IEP) suitable for his special needs. Respondent also sat in class with him to calm him down when he had bad days. Nothing in the children's interactions with each other, herself, or Respondent suggested to Ms. Holston that Respondent was abusing any of the three children. She inquired approximately every six weeks if anyone had touched them uncomfortably, and both Taleca and Michael answered in the negative each time. During this time, she never saw fresh wounds on Taleca and saw only one fresh wound on Michael. That wound was traced to a child-on-child encounter when Michael was hit on the head with a brick by another boy. Michael was impulsive, unfocused, agitated, over- anxious, and had many school incident reports during the 1999- 2000 school year. Whether these reports always involved violence is unclear, but many did. Through Respondent's persistence, Michael was diagnosed with attention deficit/hyperactivity disorder (ADHD) and medicated. His behavior improved. At some point, Yana also became subject to legitimately prescribed behavior-modifying medication. Over time, all three of the children's aggressive and traumatized play, which Ms. Holston related to the birth mother, became more organized and resolved. In November 1999, DCF investigated a complaint that Respondent had slapped Michael in the face. Initially, Taleca stated that the slapping incident had taken place. At that time, various parts of Michael's body were photographed for a CPT medical examination, but the photographs do not show all the body parts that became an issue in the instant case arising in November 2000. Some scarring on his buttocks and at least one bruise was found on Michael's left lateral thigh in 1999, which marks corresponded to two of twelve marks found in November 2000, see infra. The 1999 case was closed as unfounded and the children were returned to Respondent's care. Apparently, one reason for the "unfounded" classification was that Michael and Taleca recanted. According to Ms. Holston, in November 1999, supervised visitation with the natural parents also was suspended because the children were recovering memories of abuse by the natural parents and did not want to see the birth mother. Ms. Holston personally observed a cross-examination of Michael by his natural mother at about this time concerning the DCF investigation into whether or not Respondent had slapped Michael. Ms. Holston felt the mother's examination was upsetting and frightening to Michael. Michael's deportment improved further after he was assigned to a self-contained ESE classroom in approximately August 2000. Taleca and Michael were honor roll students by the 2000-2001 school year. On March 27, 2000, a DCF counselor interviewed Taleca, Michael, and Yana at school, outside Respondent's presence, and reported no marks, bruises, physical indicators, or statements of abuse. DCF Counselor Deanna Sheppard interviewed them in the same manner on August 10, 2000, and October 31, 2000, three days before DCF's removal of them from Respondent's home. Ms. Sheppard also detected no marks, bruises, physical indicators, or statements of abuse. Many ordinary, prudent, and credible witnesses, who had observed and known Respondent and the children professionally and personally over varying periods of time, uniformly expressed their belief that Respondent had been a good foster parent and testified that they had observed no marks on the children or abuse by the Respondent. Michael had bonded with his kindergarten teacher who had maintained weekly, but not private, contact with him into the 2000-2001 school year. Michael never told her of any abuse by anyone. She has reported abuse of other children in the past, but she noticed no evidence that Michael was abused. It is undisputed that sometime on October 31, 2000, Yana sustained several first and second degree burns on her neck and chin from one or both of Respondent's two curling irons. What is disputed is how the burning occurred, whether Respondent inflicted the burns, and whether Respondent was justified in her failure to report the incident to DCF. On November 3, 2000, Benita Cooper, Child Protective Investigator (CPI), responded to an abuse hotline complaint naming Yana as a victim, and went to the children's school. Her interviews with all three children on that day are deemed reliable hearsay.2 At the school, Ms. Cooper interviewed Yana separately and privately, using open-ended questions. In response to Ms. Cooper's question of "What happened?" Yana told her that she had been beaten with a spoon. Yana made no statement whatsoever about her burns. During this interview, Ms. Cooper also observed marks on Yana's arm, elbow, back, under her chin, and on the back of her neck. Ms. Cooper considered the neck wounds and some other marks fresh. She considered still other marks to be old, but she did not date the marks. In Ms. Cooper's opinion, Yana's neck injuries were all ones a foster parent is expected to report. In Ms. Brannen's, the DCF District Supervisor of Foster Home Licensing's, opinion, it is unclear whether a foster parent is required to report an injury of this kind when they are capable of treating it medically. Ms. Cooper also questioned Taleca and Michael separately and privately at their school. They were reluctant to talk to her and denied they had been hit, denied being disciplined at home, or knowing anything about Yana's injuries. It is recognized that children often do not report on-going abuse at the first opportunity. Deanna Sheppard had become DCF Foster Care Counselor for Taleca, Michael, and Yana as of June 2000, but she had not seen them except as noted above and had developed no particular rapport with them. Her recitation of hearsay statements of the children on November 3 and 4, 2000, have been considered, pursuant to Section 90.803(23), Florida Statutes, and found reliable.3 Accordingly, it is found that on November 3, prior to her CPT physical examination, Yana stated, under reasonably reliable circumstances, that "Mama was doing my hair and burned me with the curling iron," and that "Mama whooped me with a spoon." Ms. Sheppard understood her to be referring to Respondent. Advanced Registered Nurse Practitioner Susan Pendrak examined Yana on November 3, 2000. Advanced Registered Nurse Practitioner Linda Cox Ebbeling examined Taleca and Michael on November 4, 2000. Both women are qualified by education, training, and experience to render expert nursing opinions. The fact that their opinions with regard to the wounds of the children that they examined were couched in terms of "reasonable medical certainty" is not disqualifying, as the undersigned has accepted their opinions as being given only within their expertise of nursing. Nurse Pendrak's findings with regard to Yana's wounds on November 3, 2000, were that the hyper-pigmented linear marks on Yana's neck, arm, and hand were consistent with burns from a curling iron. She believed those on the neck had been inflicted by another person and were not accidental because of the location, pattern, and number of burns. She did not believe that any burns could have been inflicted accidentally due to the location, pattern, and number of burns, and further stated that if a sibling had done it, Yana could have gotten away. However, there were no marks on Yana clearly showing she had been held by an adult. Therefore, an accident cannot be ruled out. In the context of Yana's November 3, 2000, examination by Nurse Pendrak, which I find constituted reliable circumstances under Section 90.803(23), Florida Statutes, Yana repeatedly told Nurse Pendrak that "my momma whooped me" with a "whooping spoon," which Yana described as black and wooden, and with a "whooping" stick. Yana stated she did not want to go "to my momma's house." She made no statements about the burns. Nurse Pendrak concluded that Yana was referring to her foster mom, Respondent. 4 After Yana's examination, Ms. Sheppard transported all three children to the Trenton DCF Office where they were interviewed by Bonnie Robinson, a Child Protection Investigator, while Ms. Sheppard took notes. Ms. Sheppard's recitation of hearsay statements of the children has been considered, pursuant to Section 90.803(23), Florida Statutes, and found reliable.5 At the Trenton Office, Bonnie Robinson interviewed each of the children separately while Ms. Sheppard took notes. Ms. Sheppard seems a little vague about whether or not Yana said, at this interview, that she was burned by her Mama, but is clear that she identified Respondent as the one who had "whooped [her] with a spoon." She is also clear that Michael stated he had been whipped on his feet, hands, and butt, with a black spoon and a brown and gray stick and that Taleca said she had been whipped with a black spoon with tape on the handle, a stick or paddle, and an "x" belt, and that these items were kept in Respondent's nightstand. Each of the children identified Respondent's bedroom by colors. Deputy Sheriff Joe Barrera accompanied Bonnie Robinson and Ms. Sheppard to Respondent's home on the evening of November 3, 2000. Taleca, Michael, and Yana were not present in the home, but D., Respondent's natural son, was present. Respondent denied ever seeing the scars on Taleca and Michael in photographs she was shown because the scars were under their clothes and she did not bathe them.6 With regard to photographs of Yana's burns, she stated that Yana burned herself with the curling irons while Respondent was in the restroom. She denied ever hitting any of the children. Deputy Barrera seized a large, black, plastic serving spoon, with the handle wrapped in gray duct tape and a hole in the handle for hanging it, and a paint stirrer in natural wood with red lettering on it from the bottom drawer of Respondent's bedside night stand.7 At hearing, Taleca testified that this was not the spoon with which Respondent beat her, but she recognized the stirrer which she called a "paddle." Respondent testified this was a spoon reserved for feeding the dog, and the children had hit each other with it. Respondent's testimony on the spoon as the children's weapon is not credible, and she did not explain the stirrer. On Saturday, November 4, 2000, after the three children had spent the night together in an emergency shelter, Deanna Sheppard picked up Taleca and Michael for their CPT medical examination by Nurse Linda Cox Ebbeling. In the context of her examination of him, Nurse Ebbeling asked Michael about twelve marks on his body. This procedure constituted reliable conditions under Section 90.803(23), Florida Statutes.8 Michael could give no history about the cause of many of his scars, and this is reasonable in light of his age and the number of times he must have been scarred even by his own hyperactivity. Due to Michael's inability to give a history for many of his injuries, Nurse Ebbeling leaned toward an opinion that he "could have" been abused, as opposed to clearly opining that he had been abused. Nonetheless, she related that Michael attributed two of the marks on his body to being hit by Respondent with a black spoon and a switch, and in her professional opinion, these two marks had been, in fact, inflicted. Michael stated that another one of the marks was from his "old mom," as distinguished from Respondent. Michael also stated that Respondent slammed him against the wall and used a stick or switch to hit his hands, butt, and the bottoms of his feet. He stated that he had seen Respondent hit his two sisters, but he did not relate that Respondent had jumped on him. Nurse Ebbeling did not professionally confirm that Michael had been slammed against a wall or jumped upon. She eliminated the disparities on Michael's feet from being bruises or inflicted wounds, as conjectured by other witnesses, and attributed them to Michael simply having a different skin texture in that area. Several other marks on Michael's body looked inflicted to her, but she could not rule out accidental injury. Overall, Michael evidenced multiple healed and healing lesions, some of which were consistent with his telling her they had been inflicted by Respondent. Michael's healed lesions could not be placed as having occurred before he went to live with Respondent or placed during the year and a-half he had lived with her. In the context of her examination of Taleca on November 4, 2000, which I find constituted reliable circumstances under Section 90.803(23), Florida Statutes,9 Nurse Ebbeling determined that the multiple curvilinear lesions and hyper-pigmented lesions on Taleca's right hip and back shoulder area were consistent with Taleca's statements that Respondent had hit her on her hip and back with a black spoon, but that Taleca did not have an explanation for several other marks on her body. Taleca's other allegations at that time of Respondent stomping on her and banging her head into things were not verified by the nurse. Taleca and Michael were deposed January 30, 2001. These depositions are fully in evidence and have been considered in their entirety, as if the testimony therein had been given at hearing.10 At the time of Taleca's and Michael's January 30, 2001, depositions, the three children were residing with foster care mother, Ethel Riley. Ms. Riley has successfully fostered 30-40 children since 1994. After the children's depositions and about two weeks before February 26, 2001, Ms. Riley overheard Michael state to Taleca, during a squabble, "Ms. Street didn't burn Yana's neck. Yana burned her own self." Ms. Riley attempted to report this conversation to Ms. Sheppard and was rebuffed. This hearsay statement also is considered reliable pursuant to Section 90.803(23), Florida Statutes.11 On or about February 26, 2001, after Michael had become uncontrollable at school, a complaint was called in to the abuse hotline about Ms. Riley abusing the three children involved in the present case. Taleca and Michael gave statements that they had been paddled by Ms. Riley with a board. No CPT investigation of this incident occurred and Ms. Sheppard simply removed the children to another foster home, apparently on the theory that there had been "inappropriate" corporal punishment but not abuse. Another hotline complaint, alleging Ms. Riley had locked Yana in her garage, was investigated the next day. Apparently, this report was listed as unfounded, because Ms. Riley is still licensed. Ms. Riley credibly denied abusing any children and stated that her garage is, in fact, a recreational room for the children. She noted that two weeks before Taleca and Michael accused her of paddling them, she had signed a form permitting school officials to paddle Michael instead of suspending him. Mary Anna Hovey holds a Ph.D. in clinical psychology and sociology and is a Florida-licensed clinical psychologist with at least 17 years of experience with children. Dr. Hovey is qualified by education, training, and experience to give expert testimony in the field of child psychology. She interviewed Taleca, Michael, and Yana in March 2001, four months after the children were removed from Respondent's home. She spent approximately three and a-half hours with each child separately. Appropriately under the case law, Dr. Hovey did not comment on the credibility of the child witnesses or their hearsay statements, but her expertise has been considered in assessing the reliability of the child-hearsay statements, the children's deposition testimony, and Taleca's live testimony. Specifically, it has been considered in relation to each child's respective consistency or inconsistency with the psychological "affect" of abused children versus children who have been coached, who concoct stories, or who fantasize. The corroborative evidence for each child's hearsay statements under Section 90.803(23), Florida Statutes, are the photographs of the children's respective wounds, the nursing evidence of causality and dating of the wounds, and the fact that a spoon and stirrer matching the children's general descriptions were found in complete accord with the children's statements. Having fulfilled all statutory requirements for determining that the hearsay statements are admissible and may be considered, the evidence as a whole must be considered and weighed. Michael's videotape deposition, like Taleca's live testimony, allowed assessment of each child's credibility based on candor, demeanor, and consistency in a confrontational legal setting. Taleca's testimony, live and by deposition, and Michael's video deposition testimony are generally consistent with their respective prior hearsay statements concerning being hit with a black spoon or small stick or paddle by Respondent, and the reasons therefore (bad grades, bad behavior, and failed farm chores) but they differ significantly and implausibly on other matters. Those other allegations are rejected.12 Based on Taleca's and Michael's candor and demeanor while testifying; the expert evidence that abused children may exaggerate or add more severe details with the intent of persuading adults that a smaller, but real, abuse actually occurred; several prior inconsistent or incomplete statements of the respective children closer in time to the actual events and another statement made while at Ms. Riley's house, I find that the only credible parts of these children's testimony is that they were beaten by Respondent with a spoon and/or a small paddle, like the paint stirrer, and I make this finding primarily because the children were immediately able to direct investigators to a spoon and a paint stirrer reasonably matching their descriptions, and these items, according to competent nursing opinion, matched some of the marks on each child. Taleca's denial at hearing that the spoon located in Respondent's nightstand was the same spoon used by Respondent to beat her does not undermine her credibility in light of her recognizing the paint stirrer as a "paddle." The fact that Taleca and Michael have subsequently accused Ms. Riley of paddling them suggests a developing pattern of attacking foster parents, but does not undermine the fact that in Respondent's case, both children could direct investigators to the specific striking implements or the fact that Michael was able to distinguish marks made on him by his "old mom" from those made by Respondent. As to Taleca's live and deposition testimony that Respondent intentionally burned Yana with a curling iron, I detect a desire to please whichever attorney was asking the question and to embellish so as to fill in parts of events about which she did not know. She admitted several times that she did not see Respondent intentionally burn Yana with a curling iron and the gist of her testimony is that she assumed that Respondent intentionally burned Yana, because often when Yana wiggled while the curling process was going on, Respondent said something like, "If you don't hold still, I will burn you." Taleca assumed the comment was a threat which was ultimately carried-out, while Respondent's statement may just as clearly have constituted a warning. Taleca's history of prior child abuse probably precludes her inferring an innocent motive. Respondent testified credibly that on October 31, 2000, she had intended to take Yana to a Halloween party at school after driving to a neighboring town to see her mother, who had been in and out of the hospital twice within the last few days due to complications of a heart attack. However, Yana had "the runs," so she had taken her home. The two curling irons Respondent used for herself and the girls in the morning had been plugged in all day because Respondent had forgotten to unplug them, and after the older children came home, while Respondent was in the shower, Yana was burned with the curling irons. Respondent suspected that Michael might have done it or Yana had done it herself. Respondent did not report the burns to DCF because the children's counselor, Ms. Sheppard, did not have a pager and had not given her an after-hours phone number, and also because between October 31 and November 3, 2000, Respondent's mother was in and out of the hospital twice more. The two Advanced Registered Nurse Practitioners testified that Respondent correctly treated Yana's neck burns with Neosporin. Both Advanced Registered Nurse Practitioners agreed that leaving the burns open to the air after applying Neosporin would have been appropriate, or if there were a chance dirt would get in the wounds when Yana went to school, it would have been appropriate to cover them with clean, sterile gauze. One nursing witness testified that a band-aid would be a sufficient covering, provided the gauze fully covered the burned area. Letting the sticky part of the band-aid touch the burned area would not be appropriate. Respondent used a regular-sized band-aid on the largest of the burn wounds on November 3, 2000, when she sent Yana to school. Later in the day, Mesdames Cooper, Sheppard, and Pendrak found that the sticky part of the band-aid had come in contact with the wound. Yana's out-of-court statements, while found individually reliable in terms of Section 90.803 (23), Florida Statutes, are not fully credible. The evidence as a whole, specifically Respondent's compelling and credible direct refutation of Yana's version of events and Michael's out-of- court statement overheard by Ms. Riley, are persuasive that Yana did not consistently relate Respondent to her burns because the burns were her own fault. Nurse Pendrak's testimony that the pattern of the curling iron burns is only consistent with abuse is not persuasive, since she cannot rule out Yana's involvement.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is
