The Issue The issue presented is whether the Respondent committed the offenses set forth in the Administrative Complaint filed in this case and, if so, what disciplinary action should be taken.
Findings Of Fact At all times material hereto, Respondent, Kathy Bergerson, held a family foster home license for her residence issued by the Children, Youth and Family Program Office of Petitioner, Department of Health and Rehabilitative Services. As it relates to the license at issue, Respondent was first licensed by Petitioner in April 1987. In her home, Respondent was responsible for several developmentally disabled children and a developmentally disabled adult. Respondent's mother lives in an apartment adjoining the home and has access to the residence. Respondent's mother is a registered nurse. During the period since the licensure, the several incidents described in the following paragraphs occurred. Because the incidents involved Respondent or her home and the incidents were unexplained, Petitioner became concerned for the safety of the children in Respondent's care. The incidents at issue are as follows: Sometime during 1987 while one of the children was hospitalized, the child was discovered in what appeared to be a drug-induced sleep during a visit by Respondent. No harm to the child was demonstrated from the incident, and Respondent relayed the incident to Petitioner during her relicensure interview in 1988. Also, sometime in 1987, a housekeeper, provided by Metro-Dade County, allegedly assaulted Respondent's mother while attempting to steal toys and bed sheets from the home. No harm to the children was shown from the incident, and Respondent reported the incident to Petitioner during her relicensure interview in 1988. Then, early in 1988, Respondent received a delivery of medication which did not contain full amounts of the prescribed contents. The medication was delivered by a representative sent by Petitioner. No harm to the children was proven from the incident, and Respondent reported the incident to Petitioner. In July 1988, a report of the sexual abuse of the developmentally disabled adult living with Respondent was filed with Petitioner. The final disposition of the incident was not shown; however, neither Respondent nor Respondent's mother were classified as perpetrators of the alleged abuse. In September 1988, a child under Respondent's care, and custody was hospitalized after she became, untypically, lethargic and unresponsive when Respondent gave the child a dose of Panadol for her fever. Fearing that the child was allergic to the medicine, Respondent brought the bottle from which she had administered the medicine with them to the hospital, and reported her fear to the medical personnel at the hospital and to Petitioner. Although Petitioner asserted that the bottle of medicine was tested for its contents, the proof failed to demonstrate that a test was performed or the results of any such test. Respondent kept the medication for the children in a locked cabinet in her kitchen. Included in the drugs in the cabinet were Panadol, Valium and Benedryl. In addition to Respondent, Respondent's mother and nurses provided by Petitioner, on occasion, had access to the cabinet. While Petitioner contended that the Panadol given to the child was adulterated with Valium and Benedryl, the proof failed to indicate that the Panadol was altered, or that the child suffered from the ingestion of the medication. Petitioner asserted that it was unusual for a foster parent, such as Respondent, to have as many unexplained events reported within an almost two- year period. Therefore, based on the above incidents and what Petitioner perceived to be a pattern of unexplained incidents involving Respondent and her home, and after ordering a psychological evaluation of Respondent and her mother, Petitioner issued its notice of intent to revoke Respondent's family foster home license on February 14, 1989. Petitioner alleged that Respondent was not capable of handling the stresses associated with maintaining a family foster home. At the hearing Respondent demonstrated a tendency to become overly excited; however, the proof failed to demonstrate that she is unable to handle the stresses of her life. Respondent is a caring person who has an obvious interest and concern for the children in her charge. She expressed deep concern over each of the incidents recited above and, in fact, reported the majority of the incidents to Petitioner. Although the incidents described above generate concern, was not shown that the safety of the clients was endangered by the incidents.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: Recommended that the Department of Health and Rehabilitative Services issue a Final Order withdrawing its intent to revoke Respondent's family foster home license. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 15th day of December 1989. JANE C. HAYMAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Park way Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of December 1989.
Findings Of Fact The Respondent, Jeanette Dilligard, is licensed to operate the Dilligard Foster Home for children located at 1751 N.W. 76th Street in Miami, Florida. In the summer of 1985, W. T., age 11, L. I., age 9 and P. F., age 8, were placed in Ms. Dilligard's care by DHRS. While the children were in Ms. Dilligard's care, they were frequently and consistently given physical punishments and beatings. Each child would receive some form of physical punishment at least once a week. Ms. Dilligard used an electrical extension cord and a white belt when administering the beatings. The beatings would last about 5 minutes, sometimes leaving cuts and bruises on the children. The punishments were usually administered for fairly insignificant transgressions by the children. On one occasion, Ms. Dilligard had taken the children with her to a laundromat and L. I. accepted a piece of chewing gum from another person that was there. When Ms. Dilligard and the children returned home, L. I. was given a beating for "accepting food from a stranger." On another occasion, P. F. was eating sunflower seeds and left some of the empty shells on the floor. Ms. Dilligard administered a beating to P. F. for that offense. On yet another occasion, P. F. received a beating when she brought home a bad school report card. On November 19, 1985, W. T. lost a key to the house which he was given by Ms. Dilligard. Ms. Dilligard had previously told W. T. that if he lost the key, he could be given a beating. That evening, W. T. and his two sisters planned that they would run away from Ms. Dilligard's home the next day. On the morning of November 20, 1985, the three children ran away and went to their aunt's house. After the children left Ms. Dilligard's home, they were interviewed by the child protection team in Dade County and taken to Jackson Memorial Hospital for a medical examination. The physician's report indicated that both P. F. and L. I. had multiple bruises, scratches and abrasions on their legs and back which were non- accidental type injuries consistent with their allegations of physical beatings. Prior to receiving her license to operate a foster home, Ms. Dilligard was specifically advised, during a Foster Parent Training Program, of DHRS' policy that any form of physical punishment in the foster home setting was prohibited.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is, RECOMMENDED: That Jeanette Dilligard's license to operate a family foster home be REVOKED. DONE AND ORDERED this 12th day of January, 1987, in Tallahassee, Florida. W. MATTHEW STEVENSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of January, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-1907 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in substance in finding of fact 3. Adopted in substance in finding of fact 4. Adopted in substance in finding of fact 4. Rejected as subordinate. Adopted in substance in finding of fact 4. Adopted in substance in finding of fact 5. Rejected as subordinate. Rejected as argument. Rejected as argument. Rejected as argument. Rejected as subordinate. Rejected as a recitation of testimony. Adopted in substance in finding of fact 5. Rulings of Proposed Findings of Fact Submitted by the Respondent (None Submitted) COPIES FURNISHED: Leonard T. Helfand, Esquire Department of Health and Rehabilitative Services 401 Northwest 2nd Avenue, Suite 790 Miami, Florida 33128 Jeanette Dilligard 1751 Northwest 76th Street Miami, Florida 33147 William Page, Jr., Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 Steven W. Huss, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 =================================================================
The Issue The issue to be resolved in this proceeding concerns whether the Respondent Marie Smith has committed an intentional or negligent act materially affecting the health or safety of children for whom she operated as a "medical foster care" parent or provider.
Findings Of Fact The Respondent, Marie Smith, was first licensed in 1992, as a foster care parent by the Department of Health and Rehabilitative Services, since re-named the Department of Children and Family Services. In 1996 she became a qualified medical foster parent, authorized to keep children with special medical problems. The Respondent received special training to become a medical foster parent from Children's Medical Services, a unit of the Department of Health, which oversees the progress of children placed in medical foster care. Some of the training the Respondent received concerned a child, T.B. It involved the use of the medication Flovent, which is used to treat asthma and other bronchial conditions. Flovent is dispensed in a small aerosol container and is administered by use of an inhaler. The training which the Respondent received includes the manner in which the person administering Flovent can ascertain when the container is empty and no longer usable. In connection with the Respondent's training as a medical foster parent, Ms. Smith was also instructed in the importance of giving all medications as prescribed and in how to document administration of medications. Through training and practice she learned to execute forms provided by Children's Medical Services (CMS) called treatment records and medication records, in which were logged each dose of medication given. Although not connected with her training as a foster parent, she also received ninety hours in classroom instruction which resulted in her being certified as a pharmacy technician by the State of Florida. On July 29, 1996, the child D.P. was born. D.P. and his twin brother were placed in Ms. Smith's foster home in October 1996. D.P. lived with Ms. Smith continuously until he was removed from the home in March 1999. In July 1998, D.P. was diagnosed as having bronchiolitis, a chronic inflammation of the bronchial passages of the lungs, later identified as asthma. In order to treat this condition he was prescribed Flovent. The purpose of the medication was to reduce the frequency of exacerbations or "asthma attacks." The medication was not designed to alleviate attacks already in progress, but to prevent future attacks. The medication is only effective if given as prescribed over an extended period of time. If Flovent is not administered as prescribed over a period of time the patient may suffer an increased incidence of asthma. The failure to take preventive steps can result in long-term damage to the lungs according to Dr. Bailey. Ms. Smith filled the first prescription for Flovent at Smith's Pharmacy on July 9, 1998. Only one container of Flovent was dispensed on that occasion. A container of Flovent contains an advertised one hundred and twenty (120) metered actuations or "puffs." The literature inserted into every package contains a warning to the user to use the number of actuations, one hundred and twenty, indicated on the box because the correct amount of medicine in each puff cannot be guaranteed after that point. D.P.'s prescription required him to receive two puffs per day, once in the morning and once in the evening. Since the label on the container itself stated that there were only one hundred and twenty puffs per canister, the first container was due to be replaced after sixty days of use at two puffs per day. Notwithstanding this fact, the prescription was not refilled until October 16, 1998, or ninety-eight days after the first container was obtained. Thus, for a period of thirty- eight days, D.P. either received no dose at all, or potentially received an inadequate dose of medicine. An actual test of a full canister of Flovent was conducted at the hearing. That revealed that one could get approximately one hundred and fifty- seven puffs from a canister before it is empty. However, the literature which comes with the medication makes it clear that a user cannot depend on the adequacy of the dosage after one hundred and twenty puffs. Thus, even if Ms. Smith could have dispensed one hundred and sixty puffs from a canister, and if she maintained that she was administering two puffs per day, she would have run out of the medication after no more than eighty days. Ninety-eight days elapsed however, between the filling of the prescription and the first refill which was obtained in October 1998. Even under Ms. Smith's description of the dosing and administering of the medication, D.P. either had to have gone without his medication for some days or was receiving a less-than-standard amount in order for the medication to last as long as she maintained it did (i.e., possibly one puff per day). Ms. Smith maintained that she actually obtained two packages of Flovent from the pharmacy rather than one on October 16, 1998. The pharmacy records, however, show only one container being dispensed both in July and in October. Those records were made contemporaneously with the receipt and filling of the prescription. The pharmacist and pharmacy technician each double-check the work of the other. Thus if Ms. Smith had obtained double the amount of medication, both the pharmacist and the pharmacy technician would have had to make the same error at the same time, which is improbable. Moreover, there is no label on the extra box taped to the box dispensed on October 16, 1998. It is not the practice of the Smith Pharmacy to tape such boxes together or to label only one box. In any event, on October 16, 1998, Ms. Smith got the prescription refilled. On that day she picked up one container of Flovent. The prescription had not changed at that point so D.P. was still supposed to receive two puffs per day, so the container should have been replaced after sixty days. In view of the fact that Ms. Smith was keeping T.B., another child at the same time she provided foster care for D.P., and since T.B. also had a prescription for Flovent, it has not been established that Ms. Smith could have only gotten an extra Flovent box from the pharmacy, with the boxes containing the two canisters taped together and dispensed together on October 16, 1998. She could have simply used T.B.'s prescription box. The prescription obtained on October 16, 1998, was not re-filled again until March 10, 1999. A period of one hundred and forty-five days had thus passed before a new container was obtained. The test performed at hearing showed that as much as one hundred and fifty-six to one hundred and sixty puffs are contained in such a canister and therefore the medication might have lasted the one hundred and forty-five days. However, if the manufacturer's warning or instruction on the literature supplied with the canister is to be believed, after one hundred and twenty puffs had been dispensed (a sixty-day supply) then less medication might be dispensed with each puff thereafter. Since one hundred and forty-five days elapsed before a new prescription and container of medicine was obtained, D.P. may have failed to received one hundred and seventy doses of medicine over a period of five months. This could clearly have resulted in a worsening of D.P.'s condition. Moreover, Ms. Smith incorrectly documented the administration of the Flovent as though she were in fact giving the medication twice per day as prescribed. See Petitioner's Exhibit No. 2 in evidence. The testimony of the witnesses employed with the CMS who oversee the care for children in medical foster care uniformly found that the Respondent provided good care and they never saw any evidence that medical care for the child D.P. was neglected. In fact, Dr. Samir Ebbeid, a pediatric cardiologist who treated the child from October 1996 through April of 1999, found that the Respondent uniformly complied with his instructions about care for the child and thought that the care of the child by the Respondent between the visits to his office was appropriate. In fact he found that the child improved while under the Respondent's care and that there was no reason to believe that the child's medical care under the care of Ms. Smith, the Respondent, was ever neglected. The child's asthmatic condition actually improved during the time he was under the Respondent's medical foster care.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That a final order be entered by the Department of Children and Family Services suspending the foster care license of Marie Smith for a period of ninety days, during which time she should undertake an approved course of instruction concerning the proper administration and record-keeping of administration of prescription drugs for children in her care. DONE AND ENTERED this 15th day of March, 2000, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of March, 2000. COPIES FURNISHED: John R. Perry, Esquire Department of Children and Family Services Room 252-A 2639 North Monroe Street Tallahassee, Florida 32399-2949 Richard D. Ogburn, Esquire Post Office Box 923 Panama City, Florida 32402 Samuel C. Chavers, Acting Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John S. Slye, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue in this case is whether Petitioners should be issued a family foster home license.
Findings Of Fact Based upon the testimony, exhibits, and stipulated facts in the Joint Stipulation, the following Findings of Fact are made: Parties and Process Petitioners, who are husband and wife, submitted an application for licensure as a family foster home. Although this was an application for initial licensure, Petitioners were previously licensed as a foster home from August 2013 to October 2019.1 The Department is the state agency responsible for licensing foster care parents and foster homes, pursuant to section 409.175, Florida Statutes, and Florida Administrative Code Chapter 65C-45. Petitioners voluntarily relinquished their foster home license on or about October 28, 2019, around the time two female foster children, S.W. and H.C.S., were removed from their care. It is unclear whether the children were removed because of an abuse investigation related to H.C.S., or whether they were removed because Petitioners closed their home to foster children. Regardless, Mrs. Gilio testified that they let their license lapse because they needed a break after fostering H.C.S. The Department administers foster care licensing by contracting with third-party private entities. In Circuit 13, where Petitioners are located, the Department contracted with Eckerd Community Alternatives, doing business as Eckerd Connects (Eckerd), to be the agency responsible for facilitating foster care licensing. Eckerd has subcontracted with Children's Home Network (CHN) to facilitate foster care licensing. 1 Petitioners had previously been denied a foster care license in 2009. At the time relevant to Petitioners, the Department used the "attestation" model of foster home licensing. In this model, a private licensing agency with whom the Department has contracted will conduct a home study on the foster home applicants and attest to the applicants' fitness to be licensed. The Department does not have the discretion to deny the license once the licensing agency has attested to the appropriateness of the applicants, except if they have been named as caregivers in three or more abuse reports within five years. If there are such abuse reports, the Department is required to review those reports and make a final decision regarding the application. There is no requirement that the reports result in a finding of actual abuse for them to be reviewed by the Department.2 Although it is unclear when Petitioners submitted their application for the foster care license in this case, sometime in late 2019, CHN conducted and compiled a Unified Home Study (home study), which included Petitioners' background screening; previous reports of abuse, abandonment, or neglect involving the applicants, and references from all adult children. The home study was reviewed at a meeting on December 19, 2019, by Eckerd, through the Committee. The Committee considered the application, home study, and licensing packet and heard from various agency staff. Petitioners were also allowed to voice comments and concerns at this meeting. Had the Committee approved the application, it would have been sent to the Department along with an attestation that stated the foster home meets all requirements for licensure and a foster home license is issued by the Department. However, the Committee unanimously voted not to recommend approval of a foster home license to Petitioners. 2 The categories of findings for an abuse report are "no indicator," "not substantiated," and "verified." "No indicator" means there was no credible evidence to support a determination of abuse. "Not substantiated" means there is evidence, but it does not meet the standard of being a preponderance to support that a specific harm is the result of abuse. "Verified" means that there is a preponderance of credible evidence which results in a determination that a specific harm was a result of abuse. Frank Prado, Suncoast Regional Managing Director for the Department, ultimately decided to deny Petitioners' application for a family foster home license due to their prior parenting experiences, the multiple abuse reports regarding their home, and the recommendation of the Committee. Mr. Prado expressed concern about the nature of the abuse reports and Petitioners' admission that they used corporal punishment on a child they adopted from the foster care system in the presence of other foster children. Petitioners' Parenting History Petitioners have seven children: one is the biological son of Mr. Gilio; another is the biological son of Mrs. Gilio; and five were adopted through the foster care system in Florida. Of these seven children, six are now adults. Three of the adopted children, Jay, Sean, and Jameson, are biological brothers who Petitioners adopted in 2001. Shawna, who was adopted around 2003, is the only adopted daughter. The Petitioners' one minor child, H.G., is a nine-year-old boy and the only child who resides in their home. H.G. suffers from oppositional defiance disorder. Petitioners admitted they adopted Shawna after there had been allegations of inappropriate behavior made against Jay, by a young girl who lived next door to Petitioners. Later, while they were living with Petitioners, Jay, Sean, and Jameson were arrested for sexually abusing Shawna at different times. As a result, one or more of the sons were court-ordered to not be around Shawna, and the other brothers were required to undergo treatment and never returned to Petitioners' home. During the hearing, both Petitioners seem to blame Shawna, who was nine years old when the sexual abuse by Jay in their home allegedly began, for disrupting their home. They accused her of being "not remorseful" and "highly sexualized." Regarding the abuse by Sean and Jameson, which occurred when Shawna was approximately 12 years old, Mr. Gilio stated Shawna thought it was okay to have sex with boys, and it was "hard to watch every minute of the day if they're, you know, having sex." When Shawna was about 19 years old, she filed a "Petition for Injunction for Protection Against Domestic Violence" against Mr. Gilio in circuit court. The Petition outlined allegations of past sexual comments and inappropriate disciplinary behavior from 2007 to 2012, while she lived with Petitioners. Mr. Gilio denied at the hearing having any knowledge about the Petition against him, but admitted he made comments about Shawna's breasts. As part of the application and home study process, the CHN collected references from Petitioners' former foster children and adult children. Shawna (Petitioners' only adopted daughter) gave them a negative reference and specifically stated she would not want female foster children to live with Petitioners. Reports of Abuse Petitioners were involved in 24 abuse reports during their time of licensure between 2013 and 2019. During the past five years, Petitioners were named as either alleged perpetrators or caregivers responsible in eight reports that were made to the Florida Child Abuse Hotline (Hotline). Of those eight reports, five of them named Mr. Gilio as the alleged perpetrator causing a physical injury, one report named Mr. Gilio as the caregiver responsible for a burn on a foster child, and one report named Mr. Gilio as an alleged perpetrator of sexual abuse against a foster child. Mrs. Gilio was named as an alleged perpetrator of asphyxiation as to a foster child. Seven of the reports in the last five years against Petitioners were closed with no indicators of abuse. One of the abuse reports was closed with a "not substantiated" finding of physical injury. In this report, Mr. Gilio was the alleged perpetrator and the victim was H.G., Petitioners' minor adopted son. Additionally, after Petitioners let their foster license lapse in October 2019, a subsequent report was made against Mr. Gilio for improper contact with a former foster daughter. This incident was discussed at the Committee meeting, but it was unclear if this allegation was ever investigated. Corporal Punishment According to the Department's rules, discussed below, foster parents are forbidden to engage in corporal punishments of any kind. In 2019, there were two reports alleging Mr. Gilio of causing physical injury by corporal punishment on H.G. At the time, there were other foster children in the household. Technically, Mr. Gilio was allowed to use corporal punishment on H.G. because he was no longer a foster child and had been adopted from foster care. If a parent uses corporal punishment on a child, there can be no findings of abuse unless the child suffered temporary or permanent disfigurement. However, foster care providers are not permitted to use corporal punishment. More than one witness at the hearing had concerns about the use of corporal punishment against H.G. because of his operational defiance disorder and because other foster children (who may have been victims of physical abuse) were in the household. Brendale Perkins, who is a foster parent herself and serves on the Hillsborough County Family Partnership Alliance, an organization that supports licensed foster parents, testified she witnessed Mr. Gilio treating a foster child in his care roughly. At the time, she was concerned because this was not the way children in foster care (who may have previously been victims of abuse) should be treated. She did not, however, report it to any authorities. The Department established through testimony that the policy against using corporal punishment is taught to all potential foster families. Mr. Gilio, however, denied ever being instructed not to use corporal punishment against foster children or while foster children were in the home. He also claimed that H.G.'s therapist had never recommended any specific punishment techniques. The undersigned finds Mr. Gilio's testimony not credible. Cooperation with Fostering Partners The Department established that decisions regarding foster children are made within a "system of care" which includes input from case managers, guardian ad litem (GAL), and support service providers. The relationship between Petitioners and others working as part of this system during the time of fostering was not ideal; it was described by witnesses as "tense" and "disgruntled." One witness, a supervisor at CHN, testified Mr. Gilio was not receptive or flexible when partnering with other agencies, and was not always open to providing information when questioned. As an example, Petitioners fired a therapist without consulting with the CHN staff or the GAL for the child. At the final hearing, Mr. Gilio continued to claim he did nothing wrong by not consulting with others in the system regarding this decision. Kristin Edwardson, a child protection investigator for the Hillsborough County Sheriff's Office, was tasked with investigating the reports of abuse and neglect against Petitioners that had been reported to the Hotline. She testified she was concerned with the level of cooperation they provided her and other investigators. Although they ultimately would cooperate, Petitioners made it difficult for the investigators and would often "push back" and make the situation more stressful. She described Mr. Gilio as being disrespectful, belittling, and dismissive of her. Licensing Review Committee On December 19, 2020, the Committee, made up of eight individuals, was convened to review Petitioners' application for a foster home license. When determining whether a family should receive a foster home license, the Committee is to evaluate the applicants' background, parenting experience, references from community partners, and the family's openness and willingness to partner. Sheila DelCastillo, a regional trainer with the GAL program, was a Committee member. She had prior knowledge of Petitioners from a report that a foster child's room in Petitioners' home smelled strongly of urine during a home visit and that GAL staff had found a prescription bottle beside the child’s bed that belonged to Mr. Gilio. With regards to Petitioners' application, she read the licensing review packet and home study that contained numerous abuse reports. Ms. DelCastillo was concerned about the 24 abuse reports Petitioners’ received during their time of licensure, the negative reference from Shawna, their use of corporal punishment on H.G., and Petitioners' downplaying of the events that led to multiple abuse reports. Michelle Costley, a licensing director with CHN in charge of level 2 traditional foster homes, also served on the Committee. Ms. Costley has 14 years of experience, with seven of those years spent in foster care licensing. As director of licensing, Ms. Costley was concerned about the number of abuse reports received regarding Petitioners; Mr. Gilio's inability to be open and flexible when working in partnership with other agencies; and the needs of Petitioners' child, H.G. She was also concerned about Petitioners' decision to fire a therapist of a foster child without consulting the GAL or the other individuals involved with that child. Regarding the alleged abuse, Ms. Costley was concerned that most of the reports regarding Petitioners involved allegations of physical abuse, inappropriate touch of a sexual nature, or sexual abuse, with most alleged victims being younger than eight years old. She explained that even though these reports could not be "verified," these types of allegations are harder to establish because testimony by children of that age often is unreliable and there usually must be evidence of physical injury, which no longer is present by the time the alleged abuse is investigated. Ms. Perkins also served on the Committee. Ms. Perkins served as a foster parent mentor, working with foster parents to help them build co- parenting strategies and navigate the system of care. She has been a licensed foster parent for 13 years and has adopted 11 children from foster care. As stated earlier, she was familiar with Petitioners from the Hillsborough County Family Partnership Alliance meetings. Ms. Perkins was concerned with the number of abuse reports with similar allegations, but different victims. She also discussed Petitioners' use of corporal punishment, noting that they could have been using verbal de-escalation methods instead of corporal punishment due to the traumatic histories of many foster care children. Ms. Edwardson also served on the Committee. In addition to her personal interactions with Petitioners, Ms. Edwardson was concerned about the totality of the information presented to the Committee regarding the abuse reports and Mr. Gilio's lack of cooperation. She noted that although they were not substantiated, the number and nature of the reports related to young children were of concern. Based on the Committee notes and transcript of the meeting, Petitioners were allowed to respond to the Committee's questions at the December 2019 meeting. They argued that none of the abuse reports were proven true and any injuries were not their fault. They seemed more concerned about who made the abuse reports and why the abuse reports were called in than whether the foster children were protected in their care. For example, although Mr. Gilio admitted to hitting H.G. with a stick twice as big as a pencil, he denied any bruising was caused by the stick. A report of a burn on another child was explained by Mr. Gilio as an accident that occurred while he was teaching her how to iron; he could not understand why this was reported as possible abuse. Ms. Gilio explained that H.C.S. was a very active child which resulted in her needing stitches and requiring restraint. After hearing from Petitioners, the Committee members discussed their concerns that Petitioners were not forthcoming about the various abuse incidents, and would not take responsibility for any of the injuries or issues raised by the abuse reports. All eight members voted to not move Petitioners' application forward.
Recommendation Based on the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Department of Children and Families denying a family foster home license to Petitioners, Mary and James Gilio. DONE AND ENTERED this 9th day of November, 2020, in Tallahassee, Leon County, Florida. S HETAL DESAI Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of November, 2020. COPIES FURNISHED: Anthony Duran, Esquire Tison Law Group 9312 North Armenia Avenue Tampa, Florida 33612 (eServed) Deanne Cherisse Fields, Esquire Department of Children and Families 9393 North Florida Avenue Tampa, Florida 33612 (eServed) Lacey Kantor, Esquire Department of Children and Families Building 2, Room 204Z 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed) Javier A. Enriquez, General Counsel Department of Children and Families Building 2, Room 204F 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed) Chad Poppell, Secretary Department of Children and Families Building 1, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed)
Findings Of Fact The Respondents operated a "therapeutic foster home" in Lee County, North Fort Myers, Florida. A therapeutic foster care home such as this is licensed to accept and care for emotionally disturbed children such as the 9- year-old girl, T.P., involved in this case and, as such, has a mental health technician from the Department available for consultation should such assistance be needed. The Petitioner is an agency of the State of Florida charged, as pertinent hereto, with administration of the foster care program mandated by Chapter 409, Florida Statutes, and the above-cited chapter of the Florida Administrative Code. The child involved in this dispute, "T.P.", is a 9-year-old girl who has been diagnosed as emotionally disturbed. The Respondents were aware that she was an emotionally disturbed child when she was placed in their home with one other foster child and were also aware that theirs was a licensed therapeutic foster home with a mental health technician available for consultation. They failed to make use of the services of that technician in dealing with the child's problem involving enuresis and ecopresis. This child's medical problem, involving incontinence of bowel and bladder, is related to the child's emotional disturbance. Because of the nature of this problem and its psychological ramifications, it is even more critical than with ordinary children that slapping or hitting as a punishment for bed- wetting or soiling of clothes or bedding should be avoided. If the child is so punished for incontinence, then the child's guilt feelings or feelings of inadequacy for having "accidentally" soiled bedding or clothes is greatly aggravated. On February 10, 1982, the Respondent, Russell Ostrander, administered corporal punishment to the child T.P. on two occasions, leaving multiple black and blue marks or bruises on the buttocks and thighs of this child "because she was messing in her britches." The child, either later that day or one or two days thereafter, visited with her natural mother who observed the bruises and reported the matter to Mrs. Parker, the Petitioner's first witness, who is a "district intake counselor." Mrs. Parker, and/or the other HRS personnel testifying for the Petitioner, felt that an instance of child abuse had occurred and removed the child from the foster home. The despondent admitted spanking the child on several occasions, but did not believe he could have caused the bruises shown in Exhibits 1 and 2. The Respondents admitted however that the child was spanked as punishment for "messing in her britches."
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the candor and demeanor of the witnesses, the evidence in the record, it is therefore RECOMMENDED: That the license of Janet and Russell Ostrander to operate a foster home be revoked. DONE and ENTERED this 12th day of May, 1983, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of May, 1983. COPIES FURNISHED: Anthony N. DeLuccia, Esquire District Legal Counsel Post Office Box 06085 Fort Myers, Florida 33906 Russell and Janet Ostrander Rt. 2, Box 382 Ruden Road North Fort Myers, Florida 33903 David H. Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32301
The Issue Whether Petitioners are entitled to renewal of their license to operate a foster care home.
Findings Of Fact Petitioners had been licensed to operate a foster care home for several years prior to April 30, 1997. Each license was for a one-year period and required annual renewal. The last license issued by Respondent to Petitioners was for the period May 1, 1996, through April 30, 1997. On March 31, 1997, Respondent advised Petitioners that it would not renew their foster care license because an abuse investigation found evidence that inappropriate methods of discipline had been used by Maxine Miles on V. B., a foster child who had been placed in their care. Respondent provided Petitioners with information and training before they were initially licensed as foster care parents. As part of the initial training, Petitioners attended a thirty-hour course entitled Model Approach to Partnerships in Parenting (MAPP), which taught that corporal punishment on a foster child by a foster parent was prohibited. Petitioners knew, or should have known, that their use of corporal punishment on a foster child in their care could result in the revocation of their license or the denial of their application to renew their license. On February 14, 1996, Petitioners executed a form styled "Discipline Policy Agreement" which expressly prohibits "hitting a foster child with any object" and also prohibits "slapping, smacking, whipping, washing mouth out with soap, and any other for [sic] of physical discipline." This agreement contained a caveat that failure to comply with the discipline provisions could lead to the closure of a foster home. V. B. is a female born December 7, 1990. In 1992, V. B. was placed as a foster child in the care of the Petitioners. On or about February 14, 1997, Nicole Marshal, a foster care counselor employed by Respondent, and Brenda Boston, her supervisor, visited with V. B. and observed marks that they believed were the results of corporal punishment. These marks included a cut on V. B.'s forehead (which had been stitched) and bruises, in the form of loops, on her arms, back, and legs. They questioned V. B. as to the causes of the cut and bruises. Based on statements made by the child, they immediately thereafter contacted the Florida Abuse Hotline Information System and reported a case of possible child abuse. As a result of that contact, a child abuse investigation was instigated by the Respondent's Child Protective Investigations Unit. This child abuse investigation was conducted by Lulus McQueen, an experienced investigator. Mr. McQueen also observed the cut and the bruises on V. B. and thereafter questioned the child. Based on the physical observations and the statements made by the child, V. B. was removed from the foster care of the Petitioners on February 14, 1997. On February 25, 1997, V. B. was examined by Dr. Walter Lambert, a medical doctor employed as the Medical Director of the Child Protection Team, and by Rita Duval, a registered nurse employed by the Child Protection Team. The cut on V. B.'s forehead and the bruises observed on February 14, 1997, were still visible. Dr. Lambert and Nurse Duval were of the opinion that the bruises were consistent with V. B. having been disciplined with a belt.2 Maxine Miles physically disciplined V. B. by spanking her using an open hand.3 Maxine Miles knew, or should have known, that this form of discipline was prohibited by Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order that adopts the findings of fact and conclusions of law contained herein. It is further recommended that the application filed by Larry and Maxine Miles for the renewal of their licenses to operate a foster home be denied. DONE AND ORDERED this 9th day of January, 1998, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 9th day of January, 1998.
Findings Of Fact In August, 1980, the home of Jacob and Donna Vermeulen was licensed by Petitioner as a pre-school foster home. Under that licensure, the Vermeulens were able to care for children from birth to four years of age. The subject of this proceeding, hereinafter referred to as S.L., was born on May 26, 1976. When S.L. was four years old he and his younger sister were removed from the custody of his natural mother (after he witnessed the homicide by bludgeoning of his father by his mother) because S.L. and his sister had been physically abused by both natural parents. Petitioner placed S.L. and his sister into the Vermeu1en foster home. After S.L. and his sister had been living with the Vermeulens for approximately six months, Petitioner removed them from the Vermeulen home and returned them to the custody of their natural mother. After approximately six months, the two children were again removed from their natural mother since she again physically abused them. Petitioner requested the Vermeulens to again take custody of S.L. and his sister. The Vermeulens were reluctant to do so since both S.L, and his sister were now older than was allowed under the Vermeulens' license, and because S.L. had problems relating with the other foster children living in that home during his first stay there. However, Petitioner's social workers begged the Vermeulens to take the children back since Petitioner was unable to find any other placement for S.L. The Vermeulens agreed to make their home available to S.L. and his sister, and the two children thereafter lived in the Vermeulen home for approximately two and one-half years prior to April 16, 1984. S.L. is a difficult child to care for; he is very emotional, developmentally immature, fearful, and fidgety. He has difficulty sleeping or listening, has a very low self-esteem, and is unable to complete tasks since he becomes emotionally frustrated. Not only is S.L. a clumsy child (most probably due to medication), he also throws himself onto the floor and onto his toys, both as part of his aggressive play behavior and also in conjunction with throwing temper tantrums. S.L. initiates fights in school, on the school bus and at home with the other children in the Vermeulen home to such an extent that fighting somewhere would have been almost a daily occurrence. His excessive demands for attention were often accompanied by negative behavior, such as hitting other children and throwing temper tantrums. On December 21, 1983, S.L. was evaluated by psychiatrist Josephine Perez. Perez diagnosed S.L. as suffering from Attention Deficit Disorder with Hyperactivity. Perez determined that the high dosages of anti-psychoic medication that S.L. had been taking were inappropriate, and she prescribed different medication for him. Perez recalls that during S.L.'s initial evaluation in December she noticed that his legs and arms were filled with bruises. S.L. began treating weekly with Perez from January 16, 1984, until April 16, 1984. On each visit at least one of the Vermeulens was present, and each visit contained a seasion between Perez and the foster parent discussing the child's progress and training the foster parent in the use of behavioral modification techniques. During those several months S.L. appeared at Perez's office on one occasion with a black eye and on another occasion with a bruising above his eye. One injury resulted from a fall in the bath tub, and another resulted from a fall out of bed; both falls were probably attributable to changes Perez made in S.L.'s medication. The Vermeulens discussed both incidents with Perez since they were concerned that S.L,'s medication was still not in the proper dosage. The Vermeulens testified that sometimes when S.L.'s medication was changed, he was unable to control even his arms and was unable to sit still long enough to eat. In January, 1984, when S.L. began treating with Dr. Perez there were six children living in the Vermeulen home: four foster children, one adopted child, and one natural child. The Vermeulens and Dr. Perez discussed the number of children living in the Vermeulen home, which prohibited giving S.L. the excessive amount of time required by him to satisfy his need for attention. Perez told the Vermeulens that in her professional opinion S.L. should be in a home with no more than one other child. In turn, the Vermeulens told Perez that they had been requesting Petitioner to remove S.L. from their home out of their concern (1) for S.L. since he needed so much more attention than was available to him and (2) for the other children not only because S.L. would kick and hit them but also because the Vermeulens had discovered S.L. in his sister's bedroom standing over her with a knife in his hand on two occasions. Although Perez agreed that S.L. should be placed a different foster setting, she did nothing to assist in obtaining a different placement and did not discuss with any employee of the Petitioner ("HRS") her recommendation and the Vermeulens' desire that S.L. be placed in a setting, preferably, where he was the only child. The Vermeulens, however, continued to request of HRS employees, including the visiting social workers and medical personnel, that S.L. be removed from their home, with visitation rights being given to the Vermeulens if possible. During this time period the Vermeulens determined that they wished to adopt Michelle, a foster child in their care. On Friday, April 13, 1984, an HRS employee went to the Vermeulen home to discuss that petition for adoption and to advise the Vermeulens that HRS would not allow them to adopt Michelle. Mr. and Mrs. Vermeulen S.L., and the rest of the children living in the home were present during that discussion. The Vermeulens were advised that they would not be permitted to adopt Michelle so long as S.L. was living in their home since he is a "therapeutic foster child" and Petitioner's rules would prohibit the adoption while a "therapeutic child" was in the home. Mrs. Vermeulen was unable to understand Petitioner's position: its refusal to remove S.L. from her home after repeated requests and its refusal to allow her to adopt Michelle for the reason that S.L. was in her home. Mrs. Vermeulen became upset, and S.L. told her and Petitioner's employee to put him in a foster home indicating he would rather be sent away than prevent Michelle from being adopted by the Vermeulens. Since the HRS employee was having a difficult time discussing HRS's position, she left the Vermeulen home. On Friday, April 13, 1984, or on Monday, April 16, 1984, S.L. became involved in a fight on the school bus on the way home from school. The bus driver told Mrs. Vermeulen about the fight. On Monday April 16, 1984, Mrs. Vermeulen took S.L. to his weekly therapy session with Dr. Perez. During that session, S.L. indicated to Perez that he had been bad and had been "paddled" on the legs. He would give her no details, but Perez believed it was Donna Vermeulen who paddled S.L. Rather than discuss it with Mrs. Vermeulen, Perez acted as though nothing had been said. Further, although a medical doctor, she did not examine S.L. Instead, Perez discussed with Mrs. Vermeulen behavioral modification techniques to be utilized with S.L. and sent them home. She then telephoned HRS, and a child abuse report was completed. On April 18, 1984, an HRS employee went to S.L.'s school, removed the child from his class, and took the child to be examined by the Child Protection Team. S.L. was first examined by the nurse. When S.L. was unable to explain to the nurse from where each mark on his body originated (or refused to), she interrogated him with questions such as "Did your mommy hit you?" The nurse made notations on a chart indicating numerous marks or bruises on S.L.'s body. However, an HRS employee saw S.L. disrobed when he was being examined by the doctor on the team and saw only two marks on his lower back. Other HRS employees went to the Vermeulen home and removed all the children. No one discussed the incident or accusation with either Mr. or Mrs. Vermeulen until the following day. Until he was removed from her class on April 18, 1984, S.L. was taught by Debbie Froug an Exceptional Education teacher for emotionally disturbed children. Although Froug describes S.L. as a basically honest child, she testified that he sometimes gets very confused. A careful review of the videotaped testimony of S.L. and of the conflicting testimony of the witnesses in this case indicates that Froug's latter description is probably an understatement. No witness in this case heard the same explanation (or accusation) as any other witness. S.L's videotaped testimony illustrates why: there is no statement made by S.L. that is not contradicted by him a few seconds later. For example the videotaped deposition contains on page 27 the following: O. Did you ever have a black eye? A. No. O. Didn't you talk to Dr. Perez about having a black eye once? A. Yes, but I didn't. How did you get the black eye? One of the kids on the bus. Things stated in the affirmative by S.L. in his deposition are also stated in the negative in that same deposition. Further, it is sometimes impossible to ascertain if S.L. is describing being hit by his real father, by his real mother, or by his foster mother. Although no accusation appears to ever have been made, including in the Administrative Complaint, that Jacob Vermeulen ever struck S.L., by the time of S.L.'s deposition eight months after the alleged incident when S.L. was asked if Jacob ever hit him, that question was answered in the affirmative. In short, the evidence is clear that S.L. had some bruises or marks on his body on April 18, 1984; that those bruises or marks were both received accidentally and intentionally inflicted, and that the bruises or marks on S.L.'s body were received as a result of S.L. falling from being uncoordinated or overmedicated, from S.L. flinging himself onto the floor or onto or against objects, and from being hit or kicked by other children with whom S.L. engaged in almost-daily physical combat. Donna and Jacob Vermeulen used only approved behavior modification techniques with S.L. and did not hit S.L. with or without any object, spank S.L., or otherwise inflict physical abuse upon him. Although the Vermeulens' license as a foster home was in effect at all times material hereto, it has lapsed. A foster home license is not automatically renewed but rather requires an annual licensing study. Other than "the incident" charged herein the Vermeulens have received no prior complaints from HRS.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is REC0MENDED that a Final Order be entered dismissing with prejudice the Administrative Complaint filed herein and directing that any licensure study performed regarding the renewal or extension of Respondents' license be made omitting therefrom consideration of any of the matters set forth herein. DONE and RECOMMENDED this 19th day of July, 1985 at Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of July,1985. COPIES FURNISHED: Leonard Helfand, Esquire Department of Health and Rehabilitative Services 401 N.W. 2nd Avenue, Suite 1070 Miami, Florida 33128 Thomas J. Walsh, Esquire 590 English Avenue Homestead, Florida 33030 David Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
The Issue The issue for determination is whether Petitioner's foster home license should be renewed.
Findings Of Fact Petitioner has a foster home license issued by Respondent. Petitioner was recruited to be a foster parent by Florida Baptist Children's Home (FBCH). FBCH is a recruiter of foster parents for Respondent and holds a contract with Respondent to that effect. FBCH performs extensive background checks on and interviews persons who have been identified as potential foster parents. Subsequently, all paperwork on homes recommended by FBCH for licensure as foster homes is submitted to Respondent. Respondent makes the determination as to whether to issue a license. Respondent has licensed all foster homes recommended by FBCH. FBCH recommended to Respondent that Petitioner be licensed. Respondent and FBCH have an agreement, referred to as a placement performance agreement, regarding the foster parents who have been recruited by FBCH and licensed by Respondent. The agreement requires, among other things, the presence of FBCH at any time Respondent wishes to do anything in connection with the home of a foster parent recommended by FBCH. One of the requirements of a foster parent is to receive 30 hours of training on, among other things, how to be a foster parent, how to take care of foster children, and the duties and responsibilities of a foster parent. As part of the training, discussions on the abuse of foster care children and the sexual problems of foster care children are held. Petitioner received and successfully completed this training. Additionally, prior to the training, foster parents attend orientation during which the sexual abuse of foster care children is also discussed. On March 26, 2001, Respondent placed C.Q., a foster child, in Petitioner's home. Prior to C.Q.'s placement in Petitioner's home, Respondent had placed six foster care children in her home since Petitioner's licensure. Prior to C.Q.'s placement, Respondent's social worker, who was C.Q.'s counselor, visited Petitioner's home. At the time, Petitioner was being visited by her minor granddaughter (two years of age) for several days, and Petitioner made Respondent aware of such visitation. Respondent's social worker examined the sleeping arrangements in Petitioner's home. Petitioner had a bedroom for herself, in which she and her granddaughter slept, and a separate bedroom with two beds. C.Q. would be sleeping in the separate bedroom. The separate bedroom was close to and visible from the living room. At the time of C.Q.'s placement, neither Petitioner nor FBCH had received C.Q.'s "green book." A green book contains a foster child's background and would reveal a foster child's history regarding sexual abuse.1 Consequently, C.Q.'s green book would reveal whether she was abused and whether she was an abuser.2 Whether a foster child was sexually abused may not be known by Respondent at the time of placement with a foster parent. At the time of placement, Respondent was not aware that C.Q. was a sexual abuse victim and a sexual abuser. If Respondent discovers that a foster child has been sexually abused, it requires the foster parent to sign a Family Safety Contract. The main purpose of a Family Safety Contract is to make sure that foster parents ensure the well-being of children in their home and to remind foster parents of the condition of sexually abused children. The Family Safety Contract contains, among other things, three sections: "Prevention Rules," "Intervention Strategies," and "Signatures." The Prevention Rules section contains 16 paragraphs, which have standard language, and three of the paragraphs have blank lines for information to be filled-in by Respondent's social worker. The three paragraphs state the following: The following people are approved to supervise contact between the children: must have his/her own room. may never be placed in a bedroom with a younger child. The Intervention Strategies section states in pertinent part the following: 1. In the event that prevention measures break down and child-on-child sexual abuse occurs or appears to be imminent, caretaker will immediately. Separate the children. Report the incident to the child(ren)'s caseworker(s) and to the Abuse Hotline. Cooperate with authorities conducting an investigation. The Signatures section contains spaces for, among other things, the signatures of the caregiver, family service counselor, and family service counselor supervisor, together with a space next to each signature for the date each signed. On April 11, 2001, Respondent's social worker reviewed a Family Safety Contract, regarding C.Q., with Petitioner. Petitioner signed the Family Safety Contract the same day. FBCH was not present during the review of the Family Safety Contract with Petitioner, which was contrary to the agreement that FBCH had with Respondent. FBCH was not notified by Respondent of the review of the Family Safety Contract with Petitioner. The agreement between Respondent and FBCH requires, among other things, the presence of FBCH whenever Respondent reviews a Family Safety Contract with one of FBCH's foster parents. Before a Family Safety Contract is presented to a foster parent, paragraphs 3, 4, and 5 of the Prevention Rules should be completed by Respondent. Petitioner contends that paragraphs 4 and 5 of the Prevention Rules were not completed at the time the Family Safety Contract was reviewed with her. Petitioner testified that she would not have permitted the placement of a child, who had been sexually abused, with her and that the social worker/counselor for C.Q. stated to her (Petitioner) that all foster parents signed the Family Safety Contract. Petitioner briefly reviewed the Family Safety Contract and signed it. Respondent contends that the said paragraphs were completed. The social worker/counselor for C.Q. who reviewed the Family Safety Contract with Petitioner did not testify at hearing nor was her testimony preserved by deposition. The social worker/counselor for C.Q. was out of the country on leave and her leave was approved in February 2002. However, the supervisor of the social worker/counselor for C.Q. testified that the social worker/counselor executed an affidavit and testified as to what the affidavit stated regarding the completion of paragraphs 4 and 5. The affidavit was not offered or entered into evidence. Further, the supervisor testified that she, as a supervisor, would not have signed the Family Safety Contract with blank paragraphs. An executed Family Safety Contract was entered into evidence. Paragraphs 3, 4, and 5 of the Prevention Rules state as follows: The following people are approved to supervise contact between the children: Carmen Infante Rep. of Dept. of Children and Families Rep. of Florida Baptist C should must have his/her own room. C may never be placed in a bedroom with a younger child. (C.Q.'s name was blackened out on the copy entered into evidence, leaving only an initial, in order to comply with the requirement that confidentiality be maintained.) Paragraph 4 was modified by Respondent striking the word "must" and inserting "should" which indicated that it was not mandatory that C.Q. have her own room. The change made in paragraph 4 reflected Petitioner's bedroom arrangements for foster children. The signature lines contained the signatures of Petitioner, the social worker/counselor for C.Q., and the supervisor of the social worker/counselor for C.Q. The date that each person signed the Family Safety Contract was April 11, 2001. Considering the testimony, evidence and proof required, the contention of Petitioner is found to be more credible and a finding of fact is made that paragraphs 4 and 5 of the Family Safety Contract were not completed at the time that the Family Safety Contract was reviewed with Petitioner. Subsequent to the placement of C.Q. with Petitioner on March 26, 2001, and to the signing of the Family Safety Contract on April 11, 2001, but prior to on or about May 28, 2001, Respondent placed another foster child, J.F., with Petitioner. The record fails to indicate the date on which J.F. was placed with Petitioner. J.F. was younger than C.Q. J.F. was sexually abused. Respondent did not inform Petitioner that J.F. was sexually abused. Before placing J.F. with Petitioner, Respondent was aware of the number and location of Petitioner's bedrooms and the sleeping arrangements Petitioner had for foster children. Consequently, Respondent was aware or should have been aware that C.Q. and J.F. would be sharing the same bedroom, but not the same bed. In spite of this awareness by Respondent, it placed J.F. with Petitioner. Petitioner placed C.Q. and J.F. together in the separate bedroom. Each child had their own bed in the separate bedroom. Respondent, in paragraph 4 of the Family Safety Contract, indicated that C.Q. "should" have her own room. Petitioner's bedroom arrangements would not accommodate separate bedrooms for the foster children, and Respondent was aware of such arrangements. Petitioner complied with the Family Safety Contract. Petitioner was able to view the bedroom, where the foster children were located, from the living room. The door to the bedroom was not closed. On or about May 28, 2001, Petitioner went to the foster children's bedroom to check on them. Upon entering the bedroom, she discovered the children engaging in inappropriate sexual behavior. Petitioner immediately stopped the inappropriate behavior. Petitioner notified both FBCH and Respondent of what she had observed. The foster children were removed from Petitioner's home. Respondent has not placed any more foster children with Petitioner since the incident.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services enter a final order renewing the foster home license of Carmen Infante. DONE AND ENTERED this 25th day of July, 2002, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of July, 2002.
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 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
