The Issue The issue in the case is whether Michael and Pamela Gary's licensure to provide foster care should be revoked.
Findings Of Fact At all times relevant to this case, the Petitioners operated a foster home in Dade City, Florida. On or about June 17, 2002, an abuse report was received that led to an investigation of the Petitioners' foster home. An allegation that the children were left unattended in a van was not supported by any evidence. During the investigation, the investigator heard of an incident during which one of the foster children housed in the Petitioners' home "pulled a knife" on one of the Petitioners' biological daughters. The evidence establishes that one of the foster children in the house was standing outside and was throwing rocks at a glass window. One of the Petitioners' biological daughters told the foster child to stop throwing the rocks. From within his clothing, the foster child pulled out a dirty knife he had apparently taken from the kitchen. Pamela Gary was present at the house but was outside at the time of the incident and apparently responded to the commotion. The child was told to drop the knife and he complied. Ms. Gary called law enforcement officers who responded to the scene. The foster child was removed from the home and committed for observation under the Baker Act. After the brief commitment, during which time the child's behavior became controlled by medication, he returned to the Petitioners' home where his behavior has improved. There is no evidence that anyone was injured during the "knife incident." During the investigation, the investigator was told that at some point, one child fell while jumping on the bed and fractured an arm. The evidence establishes that a child jumping on a toddler bed approximately 18 inches high fell from the bed and broke an arm. Neither of the Petitioners was present at the time of the accident. A caretaker who allegedly does not speak English was watching the children. The broken arm that resulted from the fall was clearly an accident. The evidence fails to establish that the child's injury was related to any abuse or neglect on the part of the Petitioners or any appropriate caretaker acting on their behalf. According to Ms. Gary, the caretaker (who allegedly speaks Spanish) communicated with children who were unable to speak English. The evidence fails to establish how the Petitioners communicate with the caretaker if, as the Respondent suggests, the caretaker speaks only Spanish and the Petitioners speak only English. There is no evidence that the Petitioners are unable to communicate with the caretaker. The Respondent asserts that the number of children housed in the Petitioners' foster home (13) exceeds the number permitted under their license. The evidence fails to support the assertion. The abuse report lists 18 children as being present in the home during the investigation. Pamela Gary testified that five of the children identified as being residents of the home were visiting on a particular day to swim in the Gary pool when the investigator came to the house. The five visiting children were not residents of the home. Ms. Gary's testimony was not contradicted and is accepted as credible. Of the remaining 13 children, six were the biological or adopted children of the Petitioners, leaving seven foster children. The number of children in a foster home can exceed the permitted number through a system of waivers from licensed capacity that considers familial relationships between children and previous foster care placements. Neither of the Respondent's witnesses credibly testified that the number of actual residents in the Petitioners' foster home exceeded their licensed capacity including waiver placements. The investigator cited the upstairs portion of the Petitioners' home as being unclean and with the odor of urine. Pamela Gary testified that the only part of the house located on the second floor were bedrooms occupied by two teenaged girls and that the girls may not have picked up their clothing. Ms. Gary testified that the odor of urine was likely related to a cat litter box that had not been cleaned that morning. Ms. Gary's testimony was not contradicted and is accepted as credible. The investigator cited the Petitioners' pool as unclean. Pamela Gary testified that the pool liner was black, and that the pool was not unclean. Ms. Gary's testimony was not contradicted and is accepted as credible.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent enter a Final Order dismissing the proposed revocation of the Petitioners' licensure to provide foster care. DONE AND ENTERED this 13th day of May, 2003, 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 13th day of May, 2003. COPIES FURNISHED: Michael Gary Pamela Gary 33025 Ranch Road Dade City, Florida 33523 Frank H. Nagatani, Esquire Department of Children and Family Services 11351 Ulmerton Road, Suite 314 Largo, Florida 33778-1630 Paul Flounlacker, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700 Jerry Regier, Secretary Department of Children and Family Services 1317 Winewood Boulevard Building 1, Room 202 Tallahassee, Florida 32399-0700
The Issue Did Respondent violate Section 409.175(8)(b)1, Florida Statutes, or Rule 65C-13.011(d) and (f)1, Florida Administrative Code, and, if so, should Respondent's license as a foster home be revoked?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At times pertinent to this proceeding, Respondent was licensed as a foster home, having been issued such license on October 23, 1997. The Department is the agency of the state charged with the responsibility and duty to carry out and enforce the provisions of Chapter 409, Florida Statutes. Respondent received the Department's Model Approach to Partnership Parenting (MAPP) training to become a foster parent between September 1995 and December 1995. The Department provides MAPP training to teach persons how to become foster parents. The MAPP training that Respondent received included instructions concerning appropriate sleeping arrangements, namely that an adult should not sleep in the same bed with a foster child. Respondent agreed that the MAPP training was very useful and that he gained insight from that training on how to be a foster parent. Respondent received his foster care license on October 23, 1997, and the Department placed its first foster child with Respondent in January 1998. Foster child D.D., born October 23, 1985, was placed with Respondent by the Department January 20, 1998, and stayed with Respondent until March 12, 1998, when he was removed by the Department. Foster child E.T., born December 12, 1984, was placed with Respondent on January 12, 1998, and stayed with Respondent until January 21, 1998, when he was removed by the Department. E.T. was again placed by the Department with Respondent on January 23, 1998, and stayed with Respondent until March 12, 1998, when he was removed by the Department. Foster child R.M., born October 10, 1984, was placed with Respondent by the Department on March 2, 1998, and stayed with Respondent until March 9, 1998, when he was removed by the Department due to an alleged incident between R.M. and E.T. which occurred on March 9, 1998. The incident resulted in the Department's conducting an investigation concerning an alleged abuse on the foster child, E.T. by the foster child, R.M.. It appears from the record that the allegations were unfounded. In any event, R.M. was removed from Respondent's foster home on March 9, 1998, because his record indicated that in an earlier incident R.M. had sexually victimized another child (not E.T.). Also, because E.T. had been sexually victimized by another child (not R.M.) previous to being placed in Respondent's care the Department decided to remove E.T. from Respondent's home. It should be noted that the Department was aware of these prior incidents concerning R.M. and E.T. and the sleeping arrangements at Respondent's foster home at the time these foster children were placed with Respondent by the Department. Foster children, B.B. and C.L., dates of birth not in evidence, were placed with the Respondent by the Department on February 24, 1998, and stayed with Respondent until February 25, 1998, when they were removed by the Department. During the investigation concerning the alleged abuse incident involving R.M. and E.T. and at the hearing, Respondent admitted to sleeping in the same bed as E.T. and D.D. Respondent testified that on at least five occasions E.T. had slept in the same bed as Respondent. The facts surrounding this sleeping arrangement was that E.T. was suffering from an upper respiratory problem and would go to sleep on Respondent's bed before Respondent, who stayed up late reading, was ready for bed. As a result Respondent would sleep with E.T. to keep from waking him. There was no allegation, and certainly no evidence, that Respondent sexually or otherwise molested E.T. at any time. Respondent also admitted to sleeping in the same bed as D.D. on one occasion. Again, there was no allegation, and certainly no evidence, that Respondent sexually or otherwise molested D.D. At the time the Respondent applied for and was granted a foster home license and during the intervening time, the Department's personnel who worked with Respondent were well aware of the lack of sleeping spaces in Respondent's home. In fact, one of the Department's employees upon being advised of Respondent's sleeping arrangements commented that "it was better than sleeping on the floor at HRS." Upon being advised of the restriction on adults sleeping with foster children, the Respondent did not at first fully understand the risk of harm to the children. However, after being reminded of his MAPP training and the risk of harm to children in such a sleeping arrangement, Respondent realized his mistake in allowing such sleeping arrangements. Under Respondent's tutelage, E.T. and D.D. thrived academically and have continued to thrive since they left Respondent's home. The Department had some concern that Respondent's son was living in the home and that it had not been made aware of that circumstance. However, the Department knew, when Respondent's license was issued, that his son was living in the home.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law and the mitigating circumstances, it is recommended that the Department enter a final order suspending Respondent's foster home license for a period of one year, staying the suspension and imposing such reasonable conditions as the Department deems necessary to further educate Respondent as to his responsibilities as a foster parent. DONE AND ENTERED this 26th of July, 1999, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of July, 1999. COPIES FURNISHED: Jack E. Farley, Esquire Department of Children and Family Services 4720 Old Highway 37 Lakeland, Florida 33813-2030 Thomas D. Wilson, Esquire Law Office of Gregory Ruster 1525 South Florida Avenue Suite 3 Lakeland, Florida 33803 Gregory D. Venz. Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John S. Slye, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether Petitioners should be licensed as a family foster home.
Findings Of Fact The Petitioners are an Hispanic couple in their late fifties. At the time of application, B.A. (13 years old), and his sister S.A. (15 years old), lived with the Marriagas. Both were being raised by the Petitioners. At the time of hearing B.A. was living with the Petitioners. On August 25, 1999, Petitioners submitted their application/packet for licensure as a family foster home. Other than those raised at this hearing, Petitioners meet all requirements for becoming a foster home. They have completed the MAPP qualifications. They also understand and are able to handle problems peculiar to caring for foster children. They understand the obligations and responsibilities of foster parents. Indeed, Ms. Marriaga is not employed and is able to devote her time and attention to any children in her home. By statute, the Department is required to interview at least two neighbors of an applicant for foster care. In conducting the required interviews for the Marriaga application, a Department licensing counselor was informed that there were concerns among some of the neighbors interviewed about how the Marriagas cared for and/or supervised their 13-year-old grandson, B.A. Neighbors reported to Mr. Lewis that B.A. appeared at times to be unsupervised and locked out of the Marriagas' home. Neighbors also indicated that B.A. complained of being hungry. Other neighbors reported that the Marriagas were good parents and would make good foster parents. None of the neighbors testified at the hearing. No reliable evidence was submitted on the basis of these neighbors' assertions. Ms. Marriaga admitted that there were a few occasions when she would be out shopping for a short period when B.A. got home from school. These short periods were for no more than 5 or 10 minutes and were not frequent. She also stated that there was one occasion where B.A. was left unsupervised after school because Ms. Marriaga had to take her adult daughter to the hospital for emergency treatment for gangrene. She said she returned from the hospital within 30 minutes after B.A. got home. None of these absences were unreasonable, given B.A.'s age and level of responsibility. Neither incident supports a finding that the Marriagas are not qualified. B.A. did not have a key to the home to gain access on the occasions when Ms. Marriaga was not home when he got back from school. He could access the garage area and the backyard, but not the living areas of the home. The garage area was stocked with food and drinks. The fact B.A. does not have a key is not an unusual or unreasonable child-rearing practice. The lack of key does not support a finding that the Marriagas are not qualified especially since the Marriagas understand that foster child access requirements of the Department. Because of the concerns raised by the neighbors' reports, Mr. Lewis interviewed B.A. and his sister, re-contacted the neighbors to whom he had talked previously and interviewed two more neighbors in late October 1999. Some neighbors still had concerns about B.A.'s supervision, others did not. None of the neighbors testified at the hearing nor were sufficient facts introduced to conclude that these neighbors had any substantive basis for their opinion. The Licensing Evaluation submitted by John Lewis to the Family Services Counselor Supervisor recommended that the Marriaga's home be licensed for two children: Male or female, infant zero through eight years. This recommendation was submitted after Mr. Lewis went to the Petitioners' home to finalize the family profile report. At that time, Mr. Lewis the advised Petitioners that two of the four neighbors interviewed expressed reservations about the level of supervision a foster child would receive in their home. The Petitioners assured Mr. Lewis that their grandson B.A. is strictly supervised and well cared for. At hearing, B.A. concurred with his grandparents. Mr. Lewis did not ask the Petitioners for the name of an emergency back-up person or to provide him with an emergency care plan. The Petitioners have a strong family support group. At the hearing Ms. Marriaga stated that her plan was to either be present or a relative would provide the needed back-up supervision. The Marriagas believed handling such a scenario would not be difficult because Ms. Marriaga was always available to be home. They stated at the hearing that in the event of an emergency the great-grandfather would care for B.A. or the foster children. The Petitioners do have an adequate emergency care plan for their grandson and the foster children. Mr. Lewis informed Mr. Marriage by telephone in early December 1999, that their home would not be licensed. However, on March 15, 2000, Petitioner wrote a letter to the Department requesting action on their application. Formal, written notification of denial was provided on March 29, 2000.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Petitioners' application be granted. DONE AND ENTERED this 12th day of December, 2000, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of December, 2000. COPIES FURNISHED: Carlos A. Marriaga Evangelista Marriaga 4514 Southeast 10th Place Ocala, Florida 34471 Ralph J. McMurphy, Esquire Department of Children and Family Services 1601 West Gulf Atlantic Highway Wildwood, Florida 34785 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Virginia A. Daire, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue At issue in this case is whether Petitioner's application to register as a family day care home should be granted.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record of this proceeding, the following findings of fact are made: This case involves Petitioner's application to operate a registered family child care home. Petitioner had been registered as a family child care home from April 1989 to June 1992 and again from February 1995 to August 1998. The Department received Petitioner's most recent application on September 6, 2000. The Department regulates three types of day care facilities. In descending order of regulatory oversight, they are a licensed child care facility, a licensed family child care home, and a registered family child care home. Sections 402.305 and 402.313, Florida Statutes. While the first two categories of facilities require annual on-site Department inspections, background screening for all personnel, training, and more extensive paperwork, a registered family day care center involves no Department inspections and only requires that the operator complete a training course and provide to the Department certain paperwork and that the operator and other household members undergo background screening. The operator of a registered family day care home may care for no more than five preschool children from more than one unrelated family. Subsection 402.302(7), Florida Statutes. The application requires disclosure of "other family/household members." Petitioner's application identified David Barcelona as a household member and stated that his family relationship was "friend (roommate)." During her previous periods of registration, Petitioner had been the subject of numerous complaints to the Department. In May 1989, the Department notified Petitioner that she had been found to be caring for more than five preschool children. Petitioner acknowledged that she was operating above capacity, but assured the Department that the situation would be rectified by June 1, 1989. Nonetheless, complaints regarding the number of children at Petitioner's home persisted through at least June 1991. The Department also received several complaints concerning drug use in Petitioner's home. In September 1995, a complaint alleged that Petitioner and several other adults were seen smoking marijuana in the home. A complaint filed by a parent in February 1996 stated that the parent could smell marijuana on his children when he picked them up from Petitioner's home. A complaint from November 1996 stated that Petitioner was seen smoking marijuana in the presence of the children in her care. In each instance, the Department wrote a letter to Petitioner. The Department's letter of February 26, 1996, is representative and is quoted in relevant part: As a registered family day care home, you are not statutorily required to meet all the child care standards established in [then] Rule 10M-12 or 10M-10 of the Florida Administrative Code. In addition, Chapter 402.302-313 of the Florida Statutes does not provide the department with any statutory authority to regulate complaints of this nature within registered family day care homes. However, in the interest of safety and proper child care, we wanted to bring the complaint to your attention so that you might correct the issues as appropriate. Providing care for any child is very important. It is our hope that you are not engaging in any illegal or inappropriate activities which [sic] operating your child care business. During the Department's investigations of these complaints, Petitioner consistently denied that she used any illegal drugs. On August 10, 1998, the Department received a complaint that an unsupervised child was seen outside in the rain at Petitioner's house. On the same date, the Department received another complaint regarding Petitioner's live-in boyfriend, David Barcellona, and whether his presence rendered her home an unsafe environment for children. The complaint stated that Mr. Barcellona had not undergone background screening and had admitted to hitting one of Petitioner's own children. The complaint also stated that children reported witnessing Petitioner's use of marijuana and crack cocaine in the home. These complaints were resolved when Petitioner ceased providing child care. She sold her house and voluntarily relinquished her registration. A child protective services investigation was also commenced on August 10, 1998, by investigator Daniel McLean. His investigation confirmed that Mr. Barcellona had hit Petitioner's ten-year-old son "upside the head with an open hand" because the boy had called him a "faggot." Petitioner had given Mr. Barcellona permission to physically discipline her children. The children expressed a fear of living in the home with Mr. Barcellona. No observable injuries were found on either Petitioner's son or her eight-year-old daughter. Mr. McLean testified that Petitioner told him at least twice that she had smoked marijuana for 15 years. Mr. McLean attempted several times to obtain a drug screen from Petitioner without success. At length, Mr. McLean informed Petitioner that the Department would begin legal proceedings if Petitioner did not voluntarily surrender custody of her children to their natural father. On August 13, 1998, Petitioner signed the papers giving custody of the children to their natural father. She testified that "I picked the drugs over my children at that time." The evidence admitted at hearing established that, despite her denials, Petitioner had been a long-time user of marijuana. By her own admission, Petitioner was addicted to crack cocaine for a period of at least three months in 1998. Petitioner's sister, Lisa Lucius, estimated Petitioner's crack usage lasted for six months. Mr. McLean testified that Petitioner told him she had been using crack for seven months. At some point in 1999, Petitioner shoplifted a pair of tennis shoes, was arrested, and placed on one year's probation for petit theft. Her probation was conditioned upon her entering a 28-day live-in drug rehabilitation and counseling program at the Ruth Cooper Center in Fort Myers. Petitioner successfully completed this program. Another condition of her probation was her attendance twice weekly at Alcoholics Anonymous meetings. She complied with this condition. Finally, Petitioner's probation was conditioned upon providing random urinalysis drug tests. She complied with this condition, and her tests were all drug free. Petitioner testified that she has been drug free since completing the program at the Ruth Cooper Center. Since the conclusion of her probation in 2000, she has discontinued attendance at Alcoholics Anonymous or Narcotics Anonymous meetings. She testified that she no longer has a drug problem. In the registration application at issue in this proceeding, Petitioner listed David Barcellona as a family/household member. Both Petitioner and Mr. Barcellona were required to undergo Level 2 background screening as set forth in Subsection 435.04(1), Florida Statutes. Petitioner successfully passed the background screening and was so notified by a letter from the Department dated October 24, 2000. The letter informed Petitioner that she had passed the screening, but expressly cautioned: "Receipt of this letter does not automatically qualify you for the employment, specific position or license you may be seeking. That determination will be made [by] either an employer or licensing department." The background screening disclosed potentially disqualifying offenses for David Barcellona. As of November 6, 2000, the Department had sent Mr. Barcellona a letter offering him the opportunity to provide documentation as to the disposition of those offenses, but Mr. Barcellona had not responded. On October 31, 2000, Petitioner phoned Sarah Jarabek of the Department to inquire as to the status of her application. Ms. Jarabek told Petitioner that the Department had concerns about her history of substance abuse and about the presence of Mr. Barcellona in the home. They made an appointment to meet in Ms. Jarabek's office on November 6, 2000. On November 6, 2000, Petitioner and Ms. Lucius met with Ms. Jarabek, Nancy Starr, and Patricia Richardson of the Department. Petitioner provided evidence of the drug abuse treatment she had received while on probation. She also produced documentation that she had completed the required 30- hour Family Child Care Training Course, documentation of her church attendance and completion of a single parenting program at her church, and documentation that she had taken a technical training course for legal secretaries. Ms. Jarabek testified that she accepted all of Petitioner's representations at the meeting regarding her treatment and other matters, but that concerns remained because of Petitioner's history of denying her drug use and because the lonely, pressure-filled business of family day care might prove a poor rehabilitative environment. Ms. Starr testified that she believed more time should pass for Petitioner to demonstrate that she was not subject to a relapse. Petitioner had only been off probation since March 2000, and had yet to demonstrate her stability when her activities were not being constantly monitored. Ms. Starr was also concerned because Petitioner was not currently involved in any organized program to maintain her recovery and because Petitioner had denied using drugs when the complaints were filed in 1996 through 1998. At the November 6 meeting, the Department's representatives also raised the question of Mr. Barcellona's continued presence in the house. Petitioner told them that she had broken up with Mr. Barcellona and ejected him from her house, because she thought he was smoking crack cocaine. She told them that Mr. Barcellona had continued to harass her. He would bang on her door late at night, screaming, "I love you." He would spray his cologne outside her house, to "leave his scent." Petitioner and her children were "terrified" of him, and Petitioner was in the process of obtaining a restraining order against him. Ms. Jarabek believed Petitioner's statement that Mr. Barcellona was no longer living in the house, but remained concerned for the safety of children who would be staying at Petitioner's home, given Mr. Barcellona's erratic behavior. By letter dated November 14, 2000, David Barcellona was notified that he was ineligible for a position subject to background screening. Mr. Barcellona had not responded to the prior agency letter offering him the opportunity to provide documentation regarding the disposition of the disqualifying offenses. As the applicant for registration, Petitioner received a copy of the letter to Mr. Barcellona. By letter dated December 1, 2000, the Department notified Petitioner that her application to operate a registered family child care home had been denied. The letter cited the following as grounds for the denial: the history of at least 13 complaints regarding the operation of the home during Petitioner's previous registration periods, including six complaints related to Petitioner's use of marijuana and/or cocaine in the presence of her own or other people's children; the unreported presence of Mr. Barcellona in the home during Petitioner's previous registration periods; and the lack of sufficient time and evidence to demonstrate that Petitioner was capable of providing a safe and healthy environment for children in her care. Petitioner contended that the Department waived its ability to hold her prior complaints against her now because it repeatedly allowed her to re-register during the relevant years despite those complaints. Ms. Jarabek testified that this apparent anomaly was due to a change in Department policy since Petitioner was last registered. The Department previously took the position that it was required to ignore drug usage in a registered family day care home, because Section 402.313, Florida Statutes, did not expressly provide authority to deny or revoke a registration on that ground. Ms. Jarabek testified that the Department's current interpretation of its statutory authority to supervise the provision of child care permits it to consider drug usage in the home. The December 1 letter took note of the "positive changes" in Petitioner's life, but also noted that these changes were too recent to overcome the concerns about Petitioner's past behavior and future stability.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is, therefore, RECOMMENDED that the Department of Children and Family Services deny Petitioner's application for registration of her family day care home. DONE AND ENTERED this 18th day of May, 2001, in Tallahassee, Leon County, Florida. ___________________________________ LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of May, 2001. COPIES FURNISHED: Richard D. Lakeman, Esquire Law Office of Richard D. Lakeman, P.A. Post Office Box 101580 Cape Coral, Florida 33910 Eugenie G. Rehak, Esquire Department of Children and Family Services Post Office Box 60085 Fort Myers, Florida 33906 Virginia A. Daire, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether the Petitioner's application for licensure as a Residential Foster Care Home should be granted.
Findings Of Fact Petitioner, Patricia Rovai, was first licensed by Respondent as a Developmental Services Residential Foster Care Home in 1989. Additionally, since 1975, Petitioner was and continues to be a Licensed Practical Nurse. Ms. Rovai specialized in providing foster care to children participating in the Medically Complex Children Foster Care Program. On January 18, 1996, a meeting was held between Donna Mims, head of foster care licensing for Developmental Services, and Petitioner and her husband. The meeting was held in regards to the conditional license which had been issued to Petitioner and was due to expire on January 31, 1996. During the meeting, Ms. Mims informed Petitioner that she was qualified to receive an ordinary foster care license and could receive such a license. However, Children’s Medical Services was not willing to designate, certify, or endorse Petitioner for participation in the medical foster care program. She therefore, would not be able to provide foster care to a medically complex child. At the conclusion of the meeting and in part due to the fact that Petitioner was exhausted after living through two successive hurricanes, Petitioner chose to allow her license to expire. Respondent admits that, other than the allegations set forth in its 1996 licensure denial letter, Petitioner is qualified to be licensed as a developmental services foster home. Around July 1996, Petitioner submitted an application for licensure as a developmental services foster home under Chapter 393, Florida Statutes, and Chapter 10F-6.009, Florida Administrative Code. On August 21, 1996, Respondent notified Petitioner by letter that her application had been denied. The letter denying a new license to Petitioner addresses several concerns of the Department based on Petitioner's past performance as a medical foster parent. The letter specifically referred to Petitioner's alleged problems with her foster child's school attendance, cooperation with Departmental staff or therapists assigned to her foster child, failure to utilize or inappropriate use of community resources and skilled nursing care, failure to encourage parental involvement or reunification, failure to encourage the child to achieve, and failure to share information regarding parental involvement with the Department. The letter cited Rule 10F-6.009, Florida Administrative Code, dealing with foster parent responsibility and training of the foster child. In general, foster care providers are subject to the promulgated rules applicable to foster care facilities and caregivers contained in Chapter 10F-6.009, Florida Administrative Code. These are the only rules applicable to foster care licenses for developmental services foster care or medically complex foster care. Whether a licensee provides medically complex foster care seems to depend on whether the licensee is designated, endorsed, or certified by Children's Medical Services. Children's Medical Services was part of Respondent, but is now part of a different agency. The evidence was unclear on the exact legal process for becoming a medical foster care parent. Even the various agencies involved seemed confused regarding the licensure status of a medical foster care parent. The licensure requirements set forth in Chapter 10F-6.009, Florida Administrative Code, are separate from the Statewide Operation Plan, which is not a rule. In fact, the Statewide Operation Plan specifically states at Chapter 7, page 4 that "failure to meet the requirements for Medical Foster Care does not necessarily affect their license as a 'traditional' foster parent." No administrative rules have been promulgated for the medical foster care designation. However, the effect of the medical designation upon a foster home license is to allow the foster home to become a Medicaid provider and be paid for their service from Florida's Medicaid program. The payment from Medicaid for the medical foster care designation is approximately $2,000.00 per month per child. The foster home also receives $440.00 per month per child from developmental services. The vast majority of children in the medically complex program live with their biological families. When a child needs to be placed in a medical foster home, the skills of the medical foster parent are matched to the child’s needs. The program looks at whether the medical foster parent is trained, licensed, and credentialed to meet the needs of a given child. If a medical foster care parent lacks a skill a potential placement might require, then the foster parent is given training to develop that skill. All the foster care parents assigned medically complex children have some background in the medical field. In February of 1989, at about two-years old, Adam Ingram was placed into Petitioner's care as a participant/patient in the Medical Complex Children Foster Care Program within the Developmental Services Program of Respondent. Dr. Rex Northup, the Medical Director for the Medical Foster Care Program, considered Adam Ingram to be one of the higher level of care children in the Medical Foster Care Program. Specifically, Adam Ingram was born with and continues to suffer from myotonic dystrophy. Myotonic dystrophy is a congenital disorder that affects neuromuscular formation and has an extensive impact on other bodily systems. Adam Ingram's mother, Karen Moncrief, permanently suffers from the related condition of muscular dystrophy. Adam Ingram's congenital disorder adversely affects his central nervous system functions, muscle functions, gastro- intestinal functions, cardiac functions, and respiratory functions. In short, Adam’s muscles, lungs, heart, stomach, legs, throat, bowels, and bladder, etc., do not work well. As a result of his medical condition, Adam Ingram has a respiratory insufficiency that required a tracheostomy. He is periodically ventilator-dependent when he is asleep or ill. When not ventilated, Adam’s respiratory system must be cleared of mucous through suctioning, coughing, or throat clearing. Because of his complex and often fragile medical condition, Adam Ingram receives treatment from a neurologist, ophthalmologist, otolaryngologist, pulmonologist, cardiologist, gastroenterologist, and orthopedist. He has been hospitalized on at least seven occasions between 1984 and 1995. Otherwise, Adam has frequently been below normal health. Adam Ingram has also needed and received surgical intervention relating to his trachea tube. Because of his tracheostomy, he is at a higher risk for contracting respiratory illnesses, such as colds. He has also had problems with controlling his bowels and with voiding his bladder, causing bladder distension. Adam is not potty trained and must wear diapers. Additionally, due to his medical problems, Adam Ingram has been delayed in development of speech, vocalization, and communication skills. However, he is of normal intelligence and emotion. He can to some degree operate a computer. In sum, Adam, as a medically complex patient, is one of the higher level of care children in that he requires a great deal of direct care to manage his medical problems. He is not as unstable as some of the other children in the program that require more technological assistance and medical care. These more unstable children tend to also lack mobility, activity, and awareness. Adam, on the other hand, is quite mobile, active, and aware. He requires and demands a great deal of attention, as any young child does. Adam is simply a handful to care for. As part of undertaking Adam’s care, Petitioner was specially trained to operate various ventilators required by Adam. Petitioner also served as a demonstrator for other foster parents who required training. Judith Benford was the medical foster care nurse who had substantial contact with Petitioner and who was primarily knowledgeable in the Department as to the conditions in Petitioner's home. She rated Petitioner as satisfactory in some areas and unsatisfactory in the areas noted in Respondent's letter of denial. However, Petitioner was recommended for re- licensing by Benford around October 6, 1995, after a complete evaluation of Petitioner's performance with Adam Ingram. In November of 1995, Petitioner's license was conditionally renewed. The only specific written conditions were that she recharge her fire extinguisher and renew her CPR certification. The capacity of the home was reduced to one bed. Although not listed specifically on the conditional license, other conditions on Petitioner's license, issued in November 1995, were to develop a list of people who were interested in licensure and would be willing to care for Adam, improve Adam’s school attendance, and other “concerns” expressed at Petitioner’s and Adam’s medically handicap assessment team (MHAT) staffings. It should be noted that these unspecified “conditions” or “concerns” probably were ineffective as limitations on Petitioner’s conditional license. What is relevant for this hearing is that these conditions had been ongoing issues throughout Petitioner’s time as a medical foster parent. One major concern was Petitioner's continual request for additional help or respite care from Respondent when the resources available are limited by budgetary concerns of the Department. Because funding for extra help is limited, medical foster parents are encouraged to try to provide cross-coverage for each other, in that one medical foster parent would take care of another's children to allow the other foster parent a break or respite for an evening, weekend, or whatever. This is a reciprocal arrangement between medical foster homes. However, in the absence of an available swap between foster parents for respite care, the Department has the ability and does occasionally provide extra help to the foster parent. The problem from the Department's point of view is whether Medicaid or other Departmental funds can be and are available to pay for the assignment of extra help to a foster parent. Medicaid pays for extra help only when the medical needs of the child require the extra service. Other Departmental funds, which are often not available, pay when the extra help is needed by the foster parents because they are exhausted or ill. Nursing care requested by Petitioner on some occasions was not provided. Additionally, the medical foster parent is the primary eyes and ears for the Department regarding the medical services required by any medical foster child. For that reason the communication and feedback between the licensee and the Department has to be good, trusted, and comfortable. In May 1993, Petitioner was urged to swap respite services with other medical foster parents. Petitioner was hesitant because not all medical foster parents were trained in ventilator usage and she had a low opinion of some of the care rendered by some of the medical foster parents. At the time, at least one other medical foster parent had ventilator training. However, the evidence did not show that the ventilator-trained foster parent was able to provide respite care to Petitioner when she needed it. The Department recognized the problem with the lack of ventilator training and on July 7, 1994, all medical foster parents were given training on ventilator usage. In the winter of 1994, the department was attempting to work out respite help for Petitioner. The Department provided some respite help for 12 hours per month at $7.50 per hour. For unknown reasons, the respite was not used. Petitioner was also encouraged to obtain services through developmental services. The evidence did not show what services were available, if any. In December, 1994, the Department offered to temporarily place Adam in another medical foster home so Petitioner could get some rest. Petitioner declined because of her opinion of the poor care rendered by that foster home and the fact that the preparation for moving Adam was just as taxing as his staying. On January 10, 1995, a private duty nurse was provided by the Department. Petitioner directed the nurse to take Adam outside to swing. The evidence did not show whether any medical care was rendered during this visit. In February 1995 a private duty nurse assigned to Adam found Adam in the living room watching TV with Petitioner. At the time, no medical symptoms of significance were noted by the nurse. On March 20, 1995, Petitioner reported that Adam was coughing incessantly and needed frequent suctioning every 15 minutes. Petitioner requested additional nursing help. That same day the Department’s supervising nurse visited the home for one and one-half hours. During that time, Adam’s condition was stable; he did not cough and did not need suctioning. The Department did not provide additional nursing help. Also, sometime in March 1995, a private duty nurse was utilized to cleanup Adam’s room, linens, and bed. She also emptied the suction machine and installed a new catheter. The evidence did not show whether private duty nursing care was needed. Around May, 1995, the department lost confidence in Petitioner’s ability to determine when Adam was sick. The loss in confidence was due in part to the high number of school absences, in part to the Petitioner’s frequent requests for respite help, and in part due to the department’s suspicion that Petitioner was overstating Adam’s illnesses in order to obtain more help. In May of 1995, the Respondent instituted close supervision, monitoring, and support in an effort to prevent disruption in the placement of Adam in the Petitioner's home. During this time, the Petitioner's daughter, Dana, was providing some of the extra nursing care to Adam. School attendance was basically non-existent. Petitioner increased her request for nursing services in July 1995 after becoming aware that another child who was medically more complex than Adam was receiving additional nursing services. Petitioner, correctly, felt it was her duty to seek the best care for Adam. Between July and the end of October 1995, Petitioner was averaging around 16 hours per week of private duty nursing. During that time period, Adam was experiencing chronic bronchitis and other illnesses, in part due to the fact that his trachea tube needed to be re-seated. Sixteen hours of private duty nursing care per week for a child such as Adam is unusual but not unreasonable. In August 1995, an extra private-duty nurse was provided to Petitioner. During that time, Adam put himself in his wheelchair and went outside to swing for 30 minutes. Adam then watched TV and played pretend games in the front room. The evidence did not show whether any medical care was rendered during the nurse's visit. To resolve some of the Petitioner’s problems with inadequate help, the Department in 1995 requested that Petitioner develop a “corrective action program” to maintain the placement of the child in her home. Petitioner continuously attempted to develop a respite system by involving and or recruiting other potential foster care providers into the program. However, Adam Ingram's complex medical condition and activity level limited the availability of such respite providers. Either the recruits lost interest in pursuing licensure or qualified caretakers would observe Adam and decide he was to much to deal with. As the foster care parent to Adam Ingram, Petitioner was considered to be the primary person to evaluate Adam's health to decide whether Adam was healthy enough to attend school. However, Adam's mother, Karen Moncrief, was expected to provide six to eight hours of care per week as well as provide some respite care. At some point during Adam’s placement at Petitioner’s home, Ms. Moncrief met Petitioner’s nephew. Ms. Moncrief and Petitioner’s nephew were eventually married. Karen Moncrief has always been involved in Adam’s care. However, her involvement was often sporadic due to complications from her medical condition and complications of her pregnancy. She often would not follow through on promises of caring for Adam or promises of helping Petitioner with Adam’s care. Her involvement was inconsistent. Therefore, the reports of Karen’s involvement with Adam reflected that inconsistency. The Department concluded that the problem of inconsistent reporting or refusal to share such parental information was because Petitioner was being inconsistent in her reports on parental involvement or not including such information in her reports. The Department’s conclusion was wrong and not based on the facts regarding Ms. Moncrief’s behavior. On September 29, 1995, Adam was scheduled to go on a weekend visit to the biological parent’s home. However, Petitioner refused to permit the visit because the home was in poor condition and not suitable or safe for Adam to visit. The evidence showed other parental visits were encouraged. Also, on September 29, 1995, after Adam’s mother had once again failed to keep her promise that she would help Ms. Rovai with Adam’s care, Ms. Rovai became very upset and called Respondent to come and get Adam. She was leaving. After some conversation, Petitioner calmed down and Adam was not picked up by the Department. On October 20, 1995, Petitioner submitted a letter of resignation as the foster parent of Adam. The resignation was to be effective in 30 days. Towards the end of Petitioner's licensure, on November 15, 1995, at 9:30 p.m., Petitioner called the Department’s supervising nurse and reported that Adam had labored respiration and retraction and was generally sicker than usual. The nurse advised Petitioner to take Adam to the emergency room. Petitioner reported she was too ill and exhausted to take Adam to the emergency room. Adam’s mother was called and she took Adam to the emergency room. The emergency room exam did not reveal anything unusual in Adam’s condition and Adam was well, for Adam. On November 16, 1995, Petitioner requested that the supervising nurse come to Petitioner's home to see Adam. Petitioner also indicated she was still ill and exhausted. The supervising nurse obtained Medicaid approval for 8 hours per day of extra private duty nursing care for four days based on Petitioner's exhaustion and for support of the continued placement of Adam in Petitioner’s home until he was moved to Hattie Grant’s home. Throughout 1995, the supervising nurse visited Adam on at least 8 occasions to double check his condition against any illness Petitioner had reported. Except for one visit when Adam was febrile, Adam appeared healthy enough to attend school. However, these visits were often several hours after Petitioner’s report and usually in the afternoon, enough time for fever, nausea, or congestion to reduce with medication. The Medical Director of the Medical Foster Care Program testified that Petitioner's request for nurses and or respite care were not unreasonable given that Adam was a high-level of care and medically needy person. Petitioner was simply expected by the Department to live with the lack of assistance, keep quiet about it, and not make requests for help, except when she needed help. The double-bind demands the Department was placing on Petitioner were simply unreasonable and cannot serve as a basis for denying her application for licensure. Around the end of November 1995, Hattie Grant, a medical foster care parent, agreed to take Adam Ingram into her home. The change in foster care parents was agreed to by Adam’s mother, Karen Moncrief. Ms. Moncrief agreed for reasons she described as manipulation of her by Petitioner. However, Adam along with his mother and Petitioner’s nephew continued to see Petitioner at church and visit her at her home. The medical condition of Adam improved once in Ms. Grant’s home. He did not need as much acute care. Additionally, his school attendance increased dramatically. His manners at office visits with the doctor improved. However, this improvement could not be attributed to the change in placement or to anything Petitioner did or did not do in caring for Adam. It is very likely that the improvement was due primarily to his physical maturation. It is also very likely that re-seating his tracheal tube caused Adam’s propensity to become ill to dissipate. Ms. Grant did not require the amount of additional skilled nursing help that Petitioner had. The lessening of the need for skilled nursing help may have been due, in part, to Adam’s improved health and better attendance at school, giving Ms. Grant a break from caring for Adam. Additionally, Ms. Grant expressed serious concerns about harassment and constant scrutiny by the parents of Adam. One such complaint arose when Adam’s mother, accompanied by Ms. Rovai, took Adam to the emergency room from school. The emergency room physician could not find anything wrong with Adam. Another complaint was that Adam was losing weight. Weight loss was not borne out by any medical examination. Ms. Grant felt that she could not do anything right in the opinion of Adam’s parents. Eventually, an abuse complaint was filed against Ms. Grant. The complaint was determined to be unfounded. She was concerned about her reputation, the constant scrutiny and second guessing of her care. The parents of Adam did not testify at the hearing. The testimony from Ms. Rovai and Ms. Grant was in conflict as to the legitimacy of various complaints regarding Ms. Grant’s care of Adam and who was behind those complaints. The evidence did show that some of the complaints came from Ms. Rovai. However, the evidence did not bear out the Department’s conclusion that Ms. Rovai was illegitimately interfering with Adam’s placement at Ms. Grant’s home. At the end of the school year, around June 1996, Adam was removed from Ms. Grant’s home at her request. He was taken back to Ms. Rovai’s house. The evidence that Adam’s health or behavior deteriorated during this second stay at Ms. Rovai’s home consists of doctor’s notes from one medical examination on July 15, 1996. The doctor did not testify at the hearing. Unexplained doctor’s notes related to one visit simply do not form a basis to conclude that Ms. Rovai’s care of Adam was inadequate. Adam was not a participant in the medical foster care program while at Ms. Rovai’s house. After a short period of time Adam was reunited with his mother and remains in her care to date. Since being in his mother’s care Adam has become a stronger individual. He has shown increased joint flexibility, more ability for independent movement with braces and crutches. He continues to have less need for acute care. Additionally, his school attendance has remained fairly good. Adam continues to demonstrate good manners. Again, the improvements in Adam’s condition are likely due to his continued maturation. The evidence clearly showed that Petitioner actively assisted and cooperated with Adam's physical therapist assistant and physical therapist. Apparently the Department failed to acquaint itself with the facts of Adam's case and based its allegation of failure to cooperate on very limited and uninformative notes contained in Adam's records. In July 1995 a behavior assessment by Lakeview Hospital Special Population was arranged for Adam. The first meeting with the assessor was postponed due to Adam’s ill health. Shortly after the postponement, the assessor met with Adam and viewed him at Petitioner's home. After one visit, the assessor determined that Adam did not need the help of a behavioral specialist. The assessor suggested some behavior modification techniques which Petitioner was already utilizing. Clearly, the evidence showed that Petitioner cooperated with the behavioral specialist assigned to review Adam Ingram's behavior. The evidence also showed that the Department again did not acquaint itself with the facts of Adam's case and based its conclusions about Adam's behavior on the Department's limited contacts with Adam and very limited and uninformative notes in Adam's record. Adam’s attendance at school while in the care of Petitioner was less than 50 percent. In the semester of school beginning January 1994, Adam was seen only 10 times by the occupational therapist at school. The other major complaint regarding Adam’s care by Petitioner centered on Adam’s poor school attendance. According to competent substantial evidence provided by Adam Ingram's teacher, Vernell R. Martin, Petitioner actively sought to encourage Adam in educational activities at the Oriole Beach Elementary School. There were no staff nurses working at Oriole Beach Elementary School. The school Adam attended while living at Ms. Grant's home provided more for children with special needs. It had staff nurses and could render better medical care to Adam. He therefore could attend more often when he was not feeling well. While at school, Adam would need some suctioning through the day. He also receives gastronomy feedings and various medicines through the day. Since Adam is not potty trained he requires his diapers to be changed when needed. He would receive general physical stimulation to develop his muscles and help with wearing ankle foot orthopedic supports. Physical therapy, occupational therapy and speech therapy were provided at school. However, the evidence also demonstrated that these various therapies were also provided at Petitioner’s home either by Petitioner or through other professionals. Home physical therapy would not continue once Adam reached a plateau or refused to participate. On the other hand, therapies received at school would continue daily or weekly as established in Adam’s Independent Educational Plan. Adam was seldom sent home for medical problems at school. However, given his poor attendance, it is speculation how much he would have been sent home had he been at school. On many occasions, Adam's complex medical condition prevented him from safely attending school. At the beginning of the 1994 school year, Petitioner, at the Department’s suggestion, was going to arrange for Adam to ride the school bus to school and be picked up from school by Petitioner. Petitioner scrapped the school bus ride when she discovered that no air-conditioned bus was available to transport Adam. Adam had apparently become overheated and ill when he rode the first time on a non-air conditioned bus. On the other hand, while at Ms. Grant’s home, Adam was able to ride in a non-air conditioned bus over about a six month period, some of which was in hot weather. Still, Petitioner was capable of transporting Adam to school in her air-conditioned car. The evidence did not demonstrate that Adam was harmed by his poor school attendance. From year to year, while in Petitioner's care, Adam achieved the educational, therapeutic, occupational, and social goals established in his Individual Educational Plan. On whole, Adam is a well-adjusted child. Ms. Rovai had legitimate reasons for his absences. Given this evidence, Adam's school attendance cannot form a basis for denying Petitioner's license application. Finally, another issue raised for the first time at the hearing was whether Petitioner was suctioning too deep or too often. One bronchoscope indicated that the catheter used for suctioning had touched the trachea by being inserted too far into the tracheostomy. The evidence did not show that Respondent had given corrective instructions to Petitioner on either of these two points. Moreover, suctioning too deep is a common problem and does not reflect poor care or a failure to follow Departmental instructions. Finally, the type of catheter used by Petitioner to suction Adam had a stop on it to prevent too deep insertion of the catheter into the trachea. In short, neither of these late raised issues were established by the evidence and neither of these issues can form a basis for disqualifying Petitioner from receiving a foster home license.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the application of Petitioner be GRANTED. DONE AND ENTERED this 5th day of December, 1997, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 5th day of December, 1997. COPIES FURNISHED: Matthew D. Bordelon, Esquire Bordelon and Bordelon, P.A. 2717 Gulf Breeze Parkway Gulf Breeze, Florida 32561 Rodney M. Johnson, Esquire Department of Health 1295 West Fairfield Drive Pensacola, Florida 32501 Katie George, Esquire Department of Children and Family Services Suite 601 160 Governmental Services Pensacola, Florida 32501 Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard A. Doran, Esquire Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact Audrey Jones (Respondent) was granted a foster care license by the Department of Health and Rehabilitative Services (Petitioner) in August 1994. Respondent sought to renew her foster care license. By letter dated June 14, 1995, Petitioner notified Respondent that her foster care license would not be renewed because of a proposed confirmed abuse report. On July 6, 1994, Respondent signed an agreement, entitled "Discipline Policy Agreement", agreeing to comply with Petitioner's discipline policy. The Discipline Policy Agreement provides in pertinent part: The following disciplinary practices are FORBIDDEN in the caring for your foster child. Failure to comply may result in an investiga- tion and possible closure of your home. * * * Hitting a child with an object. Slapping or spanking a child, or ANY OTHER physical discipline. On August 23, 1994, as a condition of licensure, Respondent signed an agreement, entitled "Agreement To Provide Substitute Care For Dependent Children", with Petitioner. This agreement provides in pertinent part: As substitute care parent(s) for the Department of Health and Rehabilitative Services, we agree to the following conditions considered essential for the welfare of this dependent child placed in our home: * * * 2. We are fully and directly responsible to the department for the care of the child. * * * We will comply with all requirements for a licensed substitute care home as prescribed by the department. We will immediately report any injuries or illness of a child in our care to the department. * * * 19. We will abide by the department's discipline policy which we received during the MAPP training. In May, 1995, Respondent was the foster parent of B. W., a female child. At that time, B. W. was nine years old and had been in Respondent's care for less than one year. On May 22, 1995, B. W. was examined by a physician of Petitioner's Child Protective Team as a result of an abuse report made against Respondent that same day. The examination revealed multiple linear abrasions, scabbed linear lesions, and bruises on B. W.'s upper thighs and buttocks, with the injured areas being tender. The injuries had been inflicted with a brush-type instrument and had been inflicted within three days prior to the examination. The lesions and bruises could not have been, and were not, self- inflicted. Respondent inflicted the lesions and bruises upon B. W. with a brush. B. W. has been in several foster homes over the years. She admitted that she has told several truths and "stories" about former foster homes. However, in this situation, B. W. is found to have spoken the truth. On May 22, 1995, B. W. informed Petitioner's abuse investigator, the examining physician, and a supervisor at the Mental Health program that she attended that Respondent had punished her with a brush and that the lesions and bruises were a result of that punishment. All of these individuals observed the injuries on May 22, 1995. During the three-day period prior to the report and discovery of the lesions and bruises, B. W. was in the custody and control of Respondent. At no time did Respondent seek medical treatment for B. W.'s injuries. Nor did Respondent notify Petitioner of the injuries. Respondent violated both the Agreement to Provide Substitute Care for Dependent Children and the Discipline Policy Agreement that she had with Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health and Rehabilitative Services deny the renewal of Audrey Jones' foster care license. DONE AND ENTERED this 29th day of March, 1996, in Tallahassee, Leon County, Florida. ERROL H. POWELL, 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 29th day of March, 1996. APPENDIX The following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact 1. Partially accepted in finding of fact 1. 2. Partially accepted in finding of fact 4. 3. Partially accepted in finding of fact 3. 4. Partially accepted in finding of fact 2. 5. Partially accepted in finding of fact 2. 6. Partially accepted in finding of fact 5. 7. Partially accepted in finding of fact 5. 8. Partially accepted in finding of fact 7. 9. Rejected as being unnecessary. 10. Partially accepted in finding of fact 10. 11. Partially accepted in finding of fact 10. 12. Partially accepted in finding of fact 11. 13. Partially accepted in finding of fact 9. 14. Partially accepted in finding of fact 6. 15. Partially accepted in finding of fact 5. 16. Partially accepted in findings of fact 1 and 9. NOTE - Where a proposed finding has been partially accepted, the remainder has been rejected as being irrelevant, unnecessary, cumulative, not supported by the more credible evidence, argument, or a conclusion of law. COPIES FURNISHED: Colleen Farnsworth, Esquire Department of Health and Rehabilitative Services 401 Northeast Second Avenue Suite N-1014 Miami, Florida 33128 Harry G. Robbins, Esquire Presidential Circle Building 4000 Hollywood boulevard Suite 630 North Hollywood, Florida 33130 Richard Doran General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Sandy Coulter Acting Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue is whether Respondent should renew Petitioner's license to operate a large family child care home.
Findings Of Fact Petitioner has owned and operated Jeannie's Child Care in her home as a licensed 24-hour facility since 1988. Petitioner's license allows her to keep up to 12 children at a time. She also owns another offsite daycare center that is not at issue here. Petitioner's license to operate a large family child care home expired on December 2, 2001. Prior to the expiration of the license, Respondent designated Petitioner's facility as a Gold Seal Quality Care Program. There is no credible evidence that Petitioner is responsible for any child being spanked with a paddle or a belt. She normally puts children in the corner for time out when they misbehave. However, competent evidence indicates that Petitioner sometimes threatens to spank children that are difficult to control. On at least one occasion, Petitioner spanked third and fourth grade sisters with a rolled up newspaper, telling them that if they behaved like dogs, she would treat them like dogs. On other occasions, Petitioner spanked C.F. and F.D. by hand. Because C.F. was particularly hard to manage, his mother and her boyfriend gave Petitioner permission to spank C.F. The children in Petitioner's care sometimes bite other children. Usually these children are toddlers. To discourage biting, Petitioner told her staff to put a drop of hot sauce on a finger then put the finger in the child's mouth and on the gum. Petitioner used hot sauce in the manner described on F.D. and at least one other toddler. Petitioner's adult son drove the facility's vans. He also played with the children in the yard. At times, he would let the children exercise with him by doing push ups or sit ups and running laps. Occasionally, Petitioner's son or teachers at the facility would encourage C.F. or other school-aged children to exercise and run laps. The purpose of the exercise was to burn excess energy. To the extent that exercise was used to control the behavior of the children, there is no persuasive evidence that it was excessive. It is acceptable to discipline children by placing them in time-out. It is not acceptable to require the children to hold their hands up in the air or to hold books in their hands during a time-out period. There is no persuasive evidence that Petitioner was responsible for children having to hold their hands in the air or to hold books in their hands while they were in time-out. Petitioner's method of disciplining children varied depending on how difficult it was to control them. In some cases, the parents of the children approved Petitioner's unorthodox discipline. However, there is no evidence that any child in Petitioner's home facility were bruised or physically injured as a result of punishment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent enter a final order renewing Petitioner's license to operate a large family day care home subject to appropriate terms and conditions. DONE AND ENTERED this 18th day of July, 2002, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of July, 2002. COPIES FURNISHED: Ralph J. McMurphy, Esquire Department of Children and Family Services 1601 West Gulf Atlantic Highway Wildwood, Florida 34785 Edward L. Scott, Esquire Edward L. Scott, P.A. 409 Southeast Fort King Street Ocala, Florida 34471 Paul F. Flounlacker, Jr., Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
The Issue The issue in this case is whether HRS should grant the Petitioner's application a license to operate a foster care home for dependent children.
Findings Of Fact The Petitioner, Christopher Murphy, is a single male, born July 27, 1966. He wants to be a foster care parent for up to two teenagers, same sex, including those with a history of having been abused. In approximately September, 1994, the Petitioner approached the Children's Home Society (CHS), located in Orlando, Florida, to inquire about applying for licensure to operate a foster care home for dependent children. CHS is and was under contract with the Department of Health and Rehabilitative Services (HRS) to screen prospective licensees. The screening process included, among other things: interviews with the Petitioner; a home study; review of written personal references on behalf of the Petitioner; evaluation of the Petitioner's participation in the HRS-approved Model Approach to Partnerships in Parenting (MAPP) program. After conducting its training and screening of the Petitioner, CHS recommended the Petitioner for licensure "for two children, same gender, ages 12 to 18 years," and the Petitioner filed his application for licensure on or about May 3, 1995. The Petitioner and the "relief persons" he designated in his application underwent background screening, and no disqualifying information was found. However, by letter dated July 11, 1995, HRS gave notice of intent to deny the Petitioner's application for the following reasons: According to Florida Administrative Code Chapter 10M-6, it is the opinion of the Department that based on your own experience with depression, your single lifestyle and your sexual orientation that your desire to be a foster parent is not in the best inte- rest of the children in the custody of Health and Rehabilitative Services. You have indicated that you have doubts about your ability to work with HRS in seeking rehabilitation of the families with children in foster care, that you have limited patience with bureaucracy, and that you would not like to see the foster children in your care return to their parents. Professional counseling to relieve distress over your sexual orientation did not resolve that issue. These consider- ations lead HRS to believe that it would not be in the best interest of children in state custody to be placed with you in foster care. The Petitioner's Mental and Emotional Status The evidence is that the Petitioner experienced some difficulties growing up as one of ten siblings. His mother was very religious but, at the same time, appears to have been a strict disciplinarian and, at times, almost "cruel" to the children. In addition, the Petitioner tended to be a loner during his early years. He was physically weak and was susceptible to being bullied by other children. In addition, he played differently from other boys his age, preferring to spend his time reading Jane Austen and the Bronte sisters rather than playing with friends. As the Petitioner grew older, he increasingly recognized signs that he was homosexually oriented. These signs disturbed him because a homosexual orientation was contrary to his desires and to what he understood to be the morals of his family and religion. When the Petitioner went to college in the mid-1980's, he still would have been considered a "social isolate," and the combination of stresses from leaving home, living on his own at college and dealing with his sexual orientation resulted in depression requiring individual psychotherapy and medication (at first Impramine and later, in 1992, Prozac). Dealing with his mother's death in 1988 caused the depression to recur, but the Petitioner was able to recover with the help of the psychotherapy and medication. Since 1988, the Petitioner has suffered periodic bouts of mild depression. (Medication he takes for rapid heartbeat tends to cause some depression as a side effect.) However, the Petitioner's major depression is in remission, and he has been able to control the mild depression by the appropriate use of medication. The Petitioner's physicians advise him to continue on medication and seek therapy as necessary. In recent years, the Petitioner has resolved his conflicted feelings about his mother, as well as many of the conflicts he had with members of his family. The Petitioner also has made great strides to resolve his conflicted feelings about his sexual orientation. At the same time, he still rejects the values and lifestyle of the gay world and continues to accept most of the basic tenets of traditional values and lifestyle. As a result, there is no indication that the Petitioner is trying to use the foster parent program in order to make a political statement about gay rights. However, the difficulty the Petitioner will continue to face is that traditional society does not necessarily always accept him. This probably will make being a foster parent more difficult for the Petitioner. The Petitioner also has made considerable progress making and maintaining viable personal relationships. He has been able to work responsibly and well in the positions he has held with Universal Studios in Orlando and has made and maintained several positive and valuable friendships through work and elsewhere. In the words of a licensed psychologist who evaluated him in August- September, 1995, the Petitioner is "on the mend" in this regard; by this he meant that the Petitioner is making good progress in the right direction. If major depression were to recur, the Petitioner obviously would have difficulty persevering, and probably would be unable to persevere, in seeing a foster child through to the end of his or her temporary placement. But in recent years the Petitioner has been able to control depression by appropriately using his antidepressant medication, monitoring himself for symptoms of depression, and seeking appropriate therapy as needed. As long as he continues to do so, it is not anticipated that major depression will recur. HRS has licensed others with mental and emotional status similar to the Petitioner to be foster parents. It is true that there is a possibility that the stress of being a foster parent could cause the Petitioner's depression to recur. In many ways, teenage is the most difficult age bracket for foster care, and abused teenagers can present even greater difficulties. But HRS maintains control over the children to be placed with the Petitioner, and an effort could be made not to place the most difficult foster care challenges with the Petitioner, at least initially. In addition, HRS and the Petitioner could cooperate in monitoring the effects that the stress of being a foster parent have on the Petitioner. There is a good chance that the Petitioner's depression will not recur as a result of being a foster parent. The Petitioner's Parenting Experience The Petitioner has no children of his own and has no parenting experience. He grew up in a family of ten children but tended to spend much of his time apart from them. The Petitioner did some baby-sitting during his teens. But otherwise, through his college years, the Petitioner did not exhibit much inclination or desire to be around or work with children. The Petitioner changed as he reached adulthood. He now has a very strong desire to help teenage children by acting as their foster parent. In recent years, he has had the opportunity to work with families having their pictures made at the Universal Studios park in Orlando and has found that he had success interacting with the young members of those families. While he has not had much experience taking care of teenagers, he also has enjoyed spending considerable time in recent years interacting with the young children of friends and other family members. (Living in the a vacation center, many siblings and other members of his family have taken advantage of the opportunity to visit him since he moved to Orlando.) The Petitioner seems to interact well with the children in several arenas--facilitating play, sharing snacks and meals, helping with homework, going on picnics and other outings, suggesting and participating in other positive family activities. His friends' children like him, and his friends trust him with tending to their children. On the other hand, the Petitioner's experience taking care of children is limited. The Petitioner's experience as the sole caretaker responsible for children is relatively sparse and of relatively short duration. While the Petitioner has done some baby-sitting for family and friends, most of the time he has spent with children has been while their parents were around. The Petitioner has not had occasion to be responsible for children overnight or for extended periods of time (certainly not for 24 or more hours). He also has not had much other experience working with children in other settings. He has not, e.g., worked or volunteered as a counselor for church or civic youth groups or camps. Due to the nature of the Petitioner's experience with children, and his lack of experience with teenagers, it is not certain that the Petitioner will succeed as a foster parent of teenagers, or children of any age. It also is not certain that the Petitioner himself will thrive as and enjoy being a 24- hour a day foster parent. It would be desirable both for the Petitioner and for the children to be placed with him for the Petitioner to get more experience before beginning to act as a foster parent. But, on the other hand, the same probably could be said for most first-time parents. It is hard to truly know what it is like to be a parent until you become one. HRS has no non-rule policy establishing clear minimum experience standards for licensure as a foster parent. HRS has licensed others to be foster parents with as little or less parenting experience compared to the Petitioner. The licensing administrator who testified for HRS stated that HRS never has issued a provisional license to a first-time applicant and that HRS would not issue one for the purpose of evaluating the provisional licensee while the licensee gains additional parenting experience. The Petitioner's Ability to Be a "Team Player" On the "Strengths/Needs Work Sheet" for various sessions of the Petitioner's MAPP training, the Petitioner wrote: (Needs as a Result of Meeting 2) I am intolerant of those who hurt children and may have a difficult time holding back and/or editing my language in their company (during visits). I have limited patience with bureaucracy. If something is not getting done, I will do it myself regardless of who gets offended. (Needs as a Result of Meeting 5) I probably will assume I am a better parent than the child's birth parents, and I don't think I'll want the child to return to his biological family. As CHS conducts MAPP training, prospective foster parents are encouraged to use the "Strengths/Needs Work Sheet" to honestly express their deepest concerns about their ability to succeed as foster parents. Then, the trainers help the trainees deal with those concerns. CHS' MAPP trainers believed that, during the course of the training sessions, the Petitioner was able to work through his concerns and grow through the training process. He was open to the trainers' ideas and actively participated in the sessions. In their estimation, the Petitioner's comments, even when in the fifth session, should not be taken as an indication that the Petitioner would not be able to work in partnership with HRS and birth families as a team player. The licensing administrator who testified for HRS was not familiar with how CHS conducted MAPP training and was not in a position to conclude, as she did, that the Petitioner's statements on the "Strengths/Needs Work Sheet," in and of themselves, show that the Petitioner will not be able to work in partnership with HRS and birth families as a team player. The Petitioner has had no difficulty working within the bureaucracy at Universal Studios. He has had good relationships with his supervisors and has had no difficulty accepting their authority over him. Nothing about his employment experience would indicate that the Petitioner would have difficulty working in partnership with HRS and birth families as a team player. The Petitioner's Single Life Style On the "Strengths/Needs Work Sheet" for various sessions of the Petitioner's MAPP training, the Petitioner wrote: (Needs as a Result of Meeting 2) I am responsible, but do not lead a structured life. I eat when I'm hungry, sleep when I'm tired, have ice cream for breakfast . . . (Needs as a Result of Meeting 3) I may not be able to go out all night and do things as spontaneously as I do. (Needs as a Result of Meeting 5) It's just me - one on one. If I had a spouse to back me up when making rules or administer- ing discipline, things would be easier. On the other hand, the Petitioner also counted among his strengths: (Needs as a Result of Meeting 3) It's just me. . . . A foster child has only one person to adjust to. (Needs as a Result of Meeting 4) I have no other people living in my home and can devote a majority of my free time to my foster child. (Needs as a Result of Meeting 5) As a single male with no children, I will be the only one affected. These comments indicate an awareness on the Petitioner's part that his life will change if one or two foster children are placed in his home. As he recognizes, being single will make it more difficult in some ways, but somewhat easier in other ways. What can make being a single foster parent most difficult is not having the emotional and intellectual support and help of another adult in the home. A single foster parent must attempt to compensate by having adult family and friends who are willing and able to serve some of those needs. Several of the Petitioner's friends are willing and able to serve in this role for the Petitioner. All have met HRS's screening requirements. One thing a single foster parent cannot replace is the inability to demonstrate (and teach through) a successful marriage. But this inability clearly is not disqualifying. The Petitioner's Sexual Orientation HRS's notice of intent to deny the Petitioner's application mentioned the Petitioner's sexual orientation. But at final hearing HRS took the position that sexual orientation itself was not a ground for denial of the Petitioner's application. While not disqualifying in itself, being a homosexual foster parent undeniably will present special problems. First, it already has been mentioned that it can be a challenge for a homosexual to function in traditional society, and trying to function as a foster parent in traditional society surely will present its own special challenges. Along those lines, it is foreseeable, e.g., that a foster parent's homosexuality could be unacceptable to the birth family. In addition, since unmarried cohabitation by two or more adults is disqualifying, the Petitioner would be restricted to living alone. Lastly, many foster parents later adopt children placed with them, but the Petitioner will not be able to because homosexuality is disqualifying for purposes of adoption.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Health and Rehabilitative Services enter a final order issuing the Petitioner a license to operate a foster home for up to two children, same sex, ages 12 to 18 years of age. DONE and ENTERED this 27th day of June, 1996, in Tallahassee, Florida. J. LAWRENCE JOHNSTON, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings 27th day of June, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-4150 To comply with the requirements of Section 120.59(2), Florida Statutes (1995), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1. Rejected that he applied for a license then; he initiated the screening process and preservice training at that time. Otherwise, accepted and incorporated. 2.-4. Accepted and incorporated. 5.-8. Accepted and incorporated to the extent not subordinate or unnecessary. 9. The characterization "extensive" is rejected as not proven; otherwise, accepted and incorporated. 10.-12. Accepted and incorporated. 13. The date "July 11, 1996" is rejected as contrary to the evidence. (It was 1995.) Otherwise, accepted and incorporated. 14.-16. Accepted and incorporated to the extent not subordinate or unnecessary. 17. Accepted but subordinate and unnecessary. 18.-22. Conclusions of law. Accepted and incorporated. Conclusion of law. Respondent's Proposed Findings of Fact. 1.-3. Accepted and incorporated. 4.-6. Conclusions of law. 7.-9. Accepted but subordinate and unnecessary. Rejected as contrary to the greater weight of the evidence. (The first testimony referred to Noll's knowledge of whether the Petitioner was on medication at the time of the hearing. Noll was not "pressed" for the additional testimony; he was just asked a different question.) Rejected as contrary to the evidence that Noll "failed to follow through." Also, subordinate and unnecessary, as the question for determination is whether the evidence at final hearing supported licensure. Rejected as contrary to the greater weight of the evidence. (Again, the question for determination is whether the evidence at final hearing supported licensure.) Rejected as contrary to the greater weight of the evidence that he did not present any experience in his application; he presented more at final hearing after being informed that HRS included experience in the "single lifestyle" ground for the July 11, 1995, notice of intent to deny. Again, the question for determination is whether the evidence at final hearing supported licensure. Rejected as contrary to the greater weight of the evidence; he presented more at final hearing. See 13., above. 15.-16. Generally, accepted. The Petitioner's exact statements are incorporated. Rejected as contrary to the greater weight of the evidence that the Petitioner's purpose was to "avoid working with birth families." (The gist of Noll's discussion with the Petitioner appears to have been that foster parenting older children generally makes reunification less of a concern; either reunification would not be a viable option or, if considered, the older child would have more say in the matter. Otherwise, accepted but subordinate and unnecessary. Accepted but, as previously ruled, subordinate to the ultimate issue for determination, and unnecessary. COPIES FURNISHED: Ann E. Colby, Esquire 305 Elkhorn Court Winter Park, Florida 32792 Laurie A. Lashomb, Esquire Department of Health and Rehabilitative Services 400 West Robinson Street, Suite S-827 Orlando, Florida 32801 Gregory D. Venz Acting Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-1600 Richard Doran General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-1600
The Issue Whether Petitioners' application for renewal of their family foster home license should be denied on the grounds set forth in the October 17, 1997, letter that they received from the Department of Children and Family Services (Department). 1/
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made: Petitioners' Household Petitioners are husband and wife. They live in a four- bedroom home in Riviera Beach, Florida. Mrs. Wright and her husband have eleventh and twelfth grade educations, respectively. Mr. Wright has been semi-retired for four or five years, and he receives social security payments. To supplement this income, he works on a regular basis as a gardener. Mrs. Wright is a homemaker. Petitioners have six natural children, all of whom are adults and live outside of Petitioners' home. Petitioners also have two adopted children, both of whom live with Petitioners. Their adopted son, Bertain, is 17 years of age. Tracy Michelle, their adopted daughter, is approximately five years younger than Bertain. There are two other current members of Petitioners' household, Tmorris C. and Tavares T., the young sons of one of Petitioners' daughters. Tmorris and Tavares were taken from their mother and placed in Petitioners' custody by the Department in 1996, when Tmorris was approximately 11 months old and Tavares was almost two years of age. Petitioners' Record as Family Foster Home Licensees Petitioners are seeking the renewal of a family foster home license that they were first issued in 1977. In the 19 years that they operated a licensed family foster home, Petitioners cared for many foster children, including those with special needs. They treated their foster children in the same loving and caring manner that they treated their own children, and provided them with a reasonably safe and nurturing environment. At no time during the period that they operated their family foster home did the Department or its predecessor initiate any action to effect the revocation of Petitioners' license. Petitioners were last relicensed in 1996, pursuant to the recommendation of Jo Ann Weisiger, a Children and Families relicensing counselor who issued the following report after conducting a relicensing home study: AGENCY EXPERIENCE Mr. and Mrs. Wright were initially licensed on 09/26/77. COMPOSITION AND DESCRIPTION OF THE HOME The Wrights reside in Riviera Beach, just north of 8th Street, near schools, churches and other health and recreational facilities. Mr. Wright is painting the interior of the house. Current residents of the home are Sam Wright, age 73; Ruby Wright, age 62; adopted daughter, Tracy Michelle Wright, age 10; and son Berta[i]n, 14. There have been no major changes in the household during the past year. FOSTER CHILDREN IN THE HOME/QUALITY OF LIFE During the past year, the Wrights have cared for 16 foster children. There are currently 6 foster children in the home; Julius [H.], 5; Robert [D.], 7; Kenneth [J.], 7; Sheanna [W.], 7; Steven [W.], 6; and Amanda [W.], 4. There have been issues arising concerning allegations of physical discipline in the home, but none of these could be substantiated. The children have been appropriately clothed during licensing visits. Mrs. Wright responds to school concerns and transports to medical appointments. During a visit to the home on 3/20/96, the children all responded affectionately to the foster parents, and seemed happy and adequately cared for in this home. The children have been interviewed on two separate occasions and showed no fear of the foster parents, no signs of marks or bruises, and made no statements indicating that they have been spanked. The two older Willis children have severe developmental and emotional problems, and the Wrights have requested that they be replaced as soon as possible. They are difficult to handle, and inappropriately placed in this home. EMPLOYMENT/FINACES Mr. Wright is retired and the Wrights receive $1600.00 in Social Security and retirement income. They appear to manage their finances adequately. HEALTH AND SAFETY ISSUE Although Mr. Wright is in his seventies, he is active and involved with the children. Sanitation inspection on 2/21/96 was satisfactory. IN-SERVICE TRAINING Both foster parents completed Mini Mapp on 5/17/95. They will have 7 hours in this relicensing period, and attended the MAPP 11 training on 2/20/96 for an additional 3 hours. REFERENCES/SCREENING Local and PBSO law enforcement checks showed no records for the Wrights, and the Abuse Registry check was clear. Mr. Wright has been re-screened for fingerprints, as the original fingerprint records were lost from 1987. There are no new household members. No staff inquiries were returned, but there have been no major concerns expressed by any of the counselors who visit the home. The concerns about spanking the children have been addressed, and there is no indication that the Wrights are using inappropriate discipline. SUMMARY/RECOMMENDATIONS Relicense for 3 children, school age. Due to Mr. Wright's age, over capacity should be avoided whenever possible. In early 1996, as part of the license renewal process, Petitioners signed an "Agreement to Provide Substitute Care for Dependent Children." In so doing, they agreed to, among other things, the following: We are fully and directly responsible to the department for the care of the child. . . . We will accept the above board rate per month [$185.00] on behalf of the child in accordance with the department's established uniform rate structure for dependent children. . . . 15. We will comply with all requirements for a licensed substitute care home as prescribed by the department. . . . Petitioners last had foster children in their home in December of 1996. At that time only three of the six foster children mentioned in Ms. Weisiger's report remained in the home. Sheanna W., Steven W., and Amanda W. had been placed elsewhere at Petitioners' request. The Department's Allegations: What the Evidence Shows Specific Allegations in the October 17, 1997, Denial Letter Alleged Lack of Interest in Educational Needs Petitioners took an interest in the educational needs of their foster children. They asked their foster children, on a regular basis, if they had homework and, if the children responded in the affirmative, made sure that the children did their homework. Petitioners themselves did not assist the children in completing homework assignments, but, if the children needed such assistance, Petitioners made arrangements for other members of the family (who were better equipped to provide assistance) to help the children. Kenneth J. is the foster child referred to in the second and third sentences of the paragraph of the October 17, 1997, denial letter detailing Petitioners' alleged "[l]ack of interest in [their foster] children's educational needs" (Education Paragraph). If in fact Kenneth told a counselor that Petitioners ignored his request for help in completing the assignment referred to in the second and third sentences of this paragraph, 3/ Kenneth was not being truthful. If Kenneth did not receive any assistance at home on this project, it was only because he did not let Petitioners know that he needed help. He invariably told Petitioners, when asked by them about his homework, either that he had done his homework at school, or that he knew how to do it without anyone's help. The foster child involved in the "permission slip" incident discussed in the fourth sentence of the Education Paragraph was actually Robert D., not Kenneth J. (as the paragraph suggests). Although Robert's teacher may have sent home with him a form for Petitioners to sign to permit Robert to go on a class trip, Robert never presented the form to Petitioners. Instead, he told Mrs. Wright that he had lost the form. Mrs. Wright advised Robert to ask his teacher for another permission slip. The next morning, Robert's teacher telephoned Petitioners and spoke with Mrs. Wright about Robert's failure to hand in a signed permission slip. Mrs. Wright explained to the teacher that Robert had told her that he had lost the permission slip he had been given to take home. The teacher advised Mrs. Wright that she would send Petitioners another permission slip for them to sign. Upon receiving this second permission slip, Mrs. Wright signed it and returned it to the teacher, and Robert thus was able to go on the trip. Julius H. is the foster child who, according to the fifth sentence of the Education Paragraph, allegedly had accumulated in his book bag four weeks worth of papers that were "sent home" with him. Julius was in kindergarten at the time. Mrs. Wright actually saw these papers that Julius had brought home from school with him (in his book bag) during this four-week period. After Mrs. Wright removed the papers from the book bag, Julius put them back in the bag, explaining to Mrs. Wright that he needed to keep the papers. Alleged General Lack of Interest in Needs of Foster Children Petitioners made a good faith effort to meet the individual needs of their foster children. Kenneth J. is the foster child referred to in the first and second sentences of the paragraph of the October 17, 1997, denial letter detailing Petitioners' alleged "general lack of interest in the individual needs of the foster children placed in [their] home" (Needs Paragraph). It is true that, at first, Petitioners did not have a Medicaid card for Kenneth, as alleged in this portion of the Needs Paragraph. There is, however, no truth to the assertion that, because they did not have his Medicaid card, Petitioners did not get the vitamins that had been prescribed for Kenneth. In fact, they purchased the vitamins with their own funds. Furthermore, Mrs. Wright told Kenneth's counselor, the next time she saw the counselor, that she did not have Kenneth's Medicaid card. Robert D. is the foster child referred to in the third sentence of the Needs Paragraph. Mrs. Wright did in fact learn that Robert had been playing with fire, as this sentence suggests. There, however, was only one such incident (not three) and it occurred, not in the home, but outside of the home in an area where Robert was playing with other children. One of the other children alerted Mrs. Wright, and she went outside to investigate. When she arrived at the scene, the fire was already out. Mrs. Wright spoke with Robert about the matter. He promised not to play with fire again, and he kept his promise. There were no subsequent incidents. Following the incident, Mrs. Wright telephoned Robert's counselor and told the counselor what Robert had done. The Restraining Order against Bertain In August of 1996, Bertain was involved in a dispute with Robert D.'s and Julius H.'s brother, Jessie S., who lived across the street from Petitioners' home. The dispute concerned a girl that Bertain and Jessie both liked. Before the dispute arose, Bertain and Jessie were good friends. The dispute caused a rift in their relationship and it escalated to the point where Jessie's aunt, with whom Jessie has living at the time, sought and obtained (on Jessie's behalf) a restraining order (dated August 26, 1996) against Bertain, which provided as follows: THIS CAUSE came to be heard on August 14, 1996 upon Petitioner's application for an Injunction for Protection Against Repeat Violence pursuant to Section 784.046, Florida Statutes, and it appearing that an immediate and present danger of Repeat Violence exists, and the court being fully advised in the premises, it is: ORDERED AND ADJUDGED that Respondent: RUBY WRIGHT O/B/O BERTAIN WRIGHT (MINOR CHILD) is hereby restrained and enjoined from committing any acts of violence, to wit: assault, battery, sexual battery or stalking on the Petitioner: ANNA WHITE & ANNA WHITE O/B/O JESSIE [S.](MINOR CHILD) or any member of Petitioner's immediate family. The Respondent is restrained from threatening the Petitioner or any member of the Petitioner's immediate family, either directly or indirectly, at any time or place whatsoever. Respondent shall not enter on Petitioner's residential premises . . ., or wherever Petitioner may reside in the State of Florida. Respondent shall not enter onto Petitioner's place of employment . . ., or wherever Petitioner may be employed in the State of Florida. Upon Petitioner's request an officer from an appropriate law enforcement agency shall accompany the Petitioner and assist in the execution of service of the Injunction. The following provisions are necessary to protect the Petitioner from Repeat Violence. THE PARTIES SHALL HAVE NO CONTACT IN PERSON, DIRECT OR INDIRET, BY PHONE, BY MAIL, BY THIRD PERSONS, EXCEPT BY COURT ORDER, AT COURT APPEARANCES OR THROUGH ATTORNEYS. Any relief granted by this Injunction shall be effective for a period not to exceed months form the date hereof. The Petitioner may petition the court for extension of provisions of this Injunction prior to the conclusion of the period specified herein. The Clerk of the Court shall forward a copy of this Injunction to the Sheriff with jurisdiction over the residence of the Petitioner within twenty-four (24) hours after its entry. THIS INJUNCTION IS VALID AND ENFORCEABLE IN ALL COUNTIES OF THE STATE OF FLORIDA. This was the first and last time that Bertain was involved in any legal proceeding concerning his conduct. Bertain's dispute with Jessie did not interfere with Bertain's relationship with Robert and Julius. Bertain continued to get along well with both Robert and Julius, notwithstanding the dispute. Mrs. Wright discussed the subject of the dispute and the resulting restraining order with Mary Bosco, a Department administrator involved in the licensure of family foster homes. During the conversation, Mrs. Wright told Ms. Bosco that she (Mrs. Wright) was doing her "best with Bertain," but she could not go everywhere that Bertain went, a comment that should not be construed to reflect negatively upon Mrs. Wright as a parent. It would be unreasonable to expect a parent to accompany a teenage son the age of Bertain (at the time of Mrs. Wright's conversation with Ms. Bosco) everywhere the son went. There has been no showing that Petitioners have acted irresponsibly in discharging their responsibilities as Bertain's parents. Other Specific Allegations In its Proposed Recommended Order, the Department asserts that "Petitioners exhibited poor judgment in allowing the children (T. C. [Tmorris] and T. T. [Tavares]) named in F.P.S.S. #96-125319 to spend time unsupervised with their mother." The evidence establishes, however, that when Petitioners (specifically, Mrs. Wright) brought Tmorris and Tavares to visit their mother (which visits the judge in the dependency proceeding encouraged), Mrs. Wright remained with the boys for the duration of the visit. The Department also states in its Proposed Recommended Order that "Department counselors had to 'beg' Petitioners to cooperate in providing services to the foster children." Although the Department does not identify the children to whom it is making reference, it appears that the Department is referring to Tmorris and Tavares, who technically are not Petitioners' foster children inasmuch as Petitioners are their grandparents and do not receive reimbursement for caring for them. 4/ In any event, the evidence does not support the Department's assertion concerning Petitioners' reluctance to ensure that their grandchildren (while in their care) received needed services. Rather, it appears that, when Petitioners became aware of the children's need for services, they acted in a reasonable and responsible manner. In its Proposed Recommended Order, the Department further alleges that "[a]t one time Petitioner[s] requested that their own grandchildren be removed from their home due to the fact that they were no longer receiving foster care payments for them." Mrs. Wright did initially become upset when she learned that she and her husband would not be receiving any payments from the State for caring for Tmorris and Tavares. She then "thought differently about the matter" and realized that she and her husband had made the right decision in agreeing to assume responsibility for caring for their grandchildren, notwithstanding that they would not be paid for doing so. The additional allegation is made in the Department's Proposed Recommended Order that "Petitioners failed to provide appropriate educational and recreational activities for the children [who lived in their home] and lack the capacity to do so." According to the Department, the children spent "the majority of their hours watching television." The evidence, however, reveals otherwise. Petitioners provided the children with bicycles to ride and games to play. They went fishing with them and took them to the park on a regular basis. Whenever Petitioners went to visit relatives, the children accompanied them. Living with Petitioners did not result in the children being deprived of appropriate educational or recreational activities.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order declining to deny Petitioners' application for renewal of their family foster home license on the grounds set forth in October 17, 1997, letter that they received from the Department. DONE AND ENTERED this 30th day of November, 1998, in Tallahassee, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 1998.
The Issue The issue in this case is whether the Respondent, the Department of Health and Rehabilitative Services (HRS), should grant the application of the Petitioners, Charles Wenz and Janet Gallagher, for a family foster home license. 1/
Findings Of Fact Through series of circumstances, the Petitioners in this case--Charles Wenz and Janet Gallagher, husband and wife--came to know the children of a woman named N. M. 4/ Their priest told them about Nancy and her predicament. A serious drug and alcohol addict, and already the single mother of two boys (J. D., born December 30, 1977, and B. F., born January 7, 1983), each of whom had a different biological father, she was about to have another child by yet another man. The Petitioners were asked to help the family, and they agreed. Shortly after the third child--a girl, N. F., born November 4, 1988-- was released from the hospital, the mother asked the Petitioners to let the family live with them temporarily. Not long afterward, the mother slipped back to her way of abusing drugs and alcohol and left, leaving the children with the Petitioners. For some time, the Petitioners cared for the children without being licensed as a family foster home and without any financial assistance from HRS. Later, in approximately March, 1991, they became licensed as a family foster home for the specific and limited purpose of caring for the children of M. 5/ When it came to the children in their care, the Petitioners generally were very attentive to their needs for food, clothing, shelter and medical care, and they provided very well for the children, following up on all doctor appointments and the like. They were very conscientious in this regard. Generally, they got along well with the children, and the children tended to view them as if they were their real parents. As a result of their involvement with the family, the Petitioners came to know the children's maternal grandparents. While initially the Petitioners got along fairly well with the maternal grandparents, they had the opportunity to form opinions of them based on personal experience and stories related by the children and, later, by the fathers of the two boys. Essentially, the Petitioners thought the maternal grandparents were good grandparents, and they encouraged and cooperated in the maintenance of a relationship between the children and the maternal grandparents. At the same time, they did not perceive the maternal grandparents as a good option for permanent placement of the children. Besides the maternal grandparents' age and limited physical and emotional capabilities, and their lack of interest in being permanently responsible for the children on a full-time basis, the Petitioners also had a concern about what they understood to be the maternal grandfather's drinking habits. Instead, since reunification with the mother did not seem feasible to either the Petitioners or to HRS, the Petitioners felt the best option, at least for the boys, would be to investigate their reunification with their fathers. Along with HRS, the Petitioners were instrumental in locating the fathers of the boys and reestablishing contacts between them and their sons. Along with HRS, they actively encouraged and fostered the strengthening of the relationship between the boys and their fathers and worked with HRS to bring the men into a position to begin to care for their sons permanently on a full-time basis. When the Petitioners became licensed as a child-specific family foster home in approximately March, 1991, they agreed to work within the policies and procedures established by the Department and to accept supervision by a foster care counselor. There was no evidence that they were not supportive of the efforts outlined in the foster care agreement or plan. 6/ But problems between the Petitioners and the maternal grandparents developed between the time of the Petitioners' licensure and September, 1991. The problems got so bad that the HRS counselor assigned to the case had to conduct visitation in his office to ascertain who was causing the problems and how to best resolve them. The problems culminated in the maternal grandparents' ultimatum that they no longer could work with the Petitioners as foster parents and that they wanted the children placed with them, the grandparents. The problems worsened as HRS began to investigate the possibility of placing the children with the grandparents. 7/ The Petitioners were against this and attempted to use their positions as foster parents to thwart HRS efforts in that direction. A senior HRS counselor replaced the initial counselor in an effort to shepherd the grandparent placement, with its attendant visitations. But, although regular visitations by the grandparents was prearranged during the fall of 1991, 8/ the Petitioners consistently raised various obstacles to the grandparent visitations, requiring multiple interventions by the HRS senior counselor and others at HRS. Three times, despite HRS interventions, visitation had to be cancelled. The Petitioners' case was taking such an inordinate amount of time that the HRS senior counselor went to his supervisor for relief. The grandparents felt the need to go to court to have the court establish visitation over the Christmas holidays. A hearing had to be held on or about December 10, 1991, and the court granted the grandparents overnight visitation from December 25 through 30, 1991. On inquiring of the children on their return, the Petitioners believed the grandparents did not properly administer prescribed medications for two of the children and accused the grandparents of child abuse. HRS investigated and found that the grandparents had been in direct telephone communication with two of the children's doctors to resolve a discrepancy between two of their medication prescriptions and had followed the telephone instructions of the doctor in charge of the prescription. In connection with the problems with the grandparents, the Petitioners exhibited a clear tendency to try to manipulate the foster care system to their advantage, even unintentionally to the detriment of the interests of the children, and sometimes, out of overzealousness, through use of untruths and half truths. On one occasion, in an attempt to persuade the first HRS counselor not to pursue placement of the children with the grandparents, they told the counselor that an HRS protective services worker had told them that the maternal grandfather had a drinking problem. In fact, it was the Petitioners who had alleged to the protective services worker that the maternal grandfather had a drinking problem. On another occasion, to avoid allowing the grandparents to pick up the children for visitation, the Petitioners cited a supposed statute or rule making it illegal for the grandparents to provide transportation for the children. 9/ Once the boy, B. F., lost a hospital pass for use to visit his grandparents because of problems raised by the Petitioners concerning the legality of the grandparents providing transportation for him. In addition to the problems with the maternal grandparents, the Petitioners exhibited a certain tendency to take things into their own hands when closer contact and consultation with HRS would have been advisable. Once they made arrangements for one of the boys to be admitted to a psychiatric hospital without consulting with HRS and did not advise the counselor until shortly before admission. To attempt to justify their actions to the HRS counselor, the Petitioner told the counselor that the boy's family therapist strongly favored hospitalization for psychiatric treatment. In fact, the counselor later found that the family therapist only had said that it might become necessary at some point to hospitalize the boy. Once the Petitioner, Charles Wenz, used corporal punishment on one of the boys although he knew it was against HRS policy for operators of a family foster home to use corporal punishment. He explained that, due to the history of the Petitioners' relationship with these children, the Petitioners felt more like parents than foster parents and that he did not think it was appropriate in their case for the usual prohibition against corporal punishment to apply to them. Later, Mr. Wenz had another occasion to use a form of corporal punishment on the other boy. 10/ In January, 1992, the Petitioners applied to renew their "child- specific" license as a family foster home. On or about February 1, 1992, the court placed the children with the maternal grandparents, and the Petitioners converted their application to one for general licensure as a family foster home.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Petitioner, the Department of Health and Rehabilitative Services (HRS), enter a final order granting the application of Charles Wenz and Janet Gallagher for general licensure as a family foster home. RECOMMENDED this 13th day of July, 1992, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of July, 1992.
