The Issue The issue for disposition in this proceeding is whether Petitioner is entitled to licensure as a family day care home.
Findings Of Fact Petitioner, Marie Carline St. Fort, resides in Orlando, Orange County, Florida; in November 1999, she applied for a license to operate a family day care home at her residence. In the course of discharging its statutory responsibility of investigating applicants seeking licensure for family day care homes, DCFS discovered three incidents of child abuse/neglect, involving Petitioner's children or children in Petitioner's care, as reported to the Florida Abuse Hotline Information System. Petitioner acknowledged each incident indicating that the alleged abuse/neglect was the result of the actions of either her husband or her mother. One incident involved her husband's imposition of excessive corporal punishment to her daughter/his step-daughter which Petitioner witnessed but in which she failed to intervene. A second incident involved alleged sexual fondling of a male child by the maternal grandmother, which apparently occurred; however, upon investigation by a child protection investigator, this activity was excused and was attributed to "cultural differences" in the Haitian culture. Petitioner is of Haitian heritage. Petitioner testified that after the incident referred to in paragraph 5, supra, an Orange County Juvenile Court Judge allowed her children to return to Petitioner's home after nine days in protective custody conditioned on the grandmother not residing in the home. The grandmother presently resides in the home. In response to each of the alleged incidents of abuse/neglect, Petitioner indicated that the alleged perpetrator was someone other than herself and that she, therefore, should not be disqualified. Based on the three acknowledged incidents of abuse/neglect, DCFS determined that Petitioner's home did not meet the minimum standards required for licensure as a family day care home. DCFS advised Petitioner of her licensure denial by certified mail on January 21, 2000. In this letter Petitioner was advised: "Any party whose substantial interests are affected by this determination has a right to request an administrative proceeding pursuant to Section 120.57, Florida Statutes, and rules promulgated pursuant thereto, [within] 30 days of receipt of this notice. The request must be in writing, . . .". By an undated letter received by DCFS on December 19, 2001, in which Petitioner acknowledged receipt of DCFS's letter, Petitioner asked the "department to reconsider my request and approve my requested license to operate a Family Day Care Home." DCFS interpreted this as a request for an administrative hearing. In the same letter Petitioner indicated, "I had written you a letter before within 30 days as stated in your letter dated January 21, 2000. I have never received any response from your office concerning this matter." Petitioner testified, contradicting her letter received by DCFS on December 19, 2001, that her first letter, which apparently had never been received by DCFS, had not been mailed until approximately 60-90 days after the expiration of the 30- day deadline stated in DCFS's January 21, 2000, letter denying licensure. No relevant excuse was offered for her tardiness.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services enter its final order granting the motion to dismiss Petitioner's request for administrative hearing or, in the alternative, enter its final order denying Petitioner's licensure application for a family day care home license for her failure to present any meritorious evidence of entitlement. DONE AND ENTERED this 2nd day of May, 2002, in Tallahassee, Leon County, Florida. JEFF B. CLARK 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 2nd day of May, 2002. COPIES FURNISHED: Richard Cato, Esquire Department of Children and Family Services 400 West Robinson Street Suite S-1106 Orlando, Florida 32801-1782 Marie Carline St. Fort 2800 Rose Boulevard Orlando, Florida 32839 Peggy Sanford, 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 Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact At all times pertinent to the issues herein, the Department of Health and Rehabilitative Services was the state agency in Florida responsible for the licensing of family child day care centers in this state. Respondent, Elizabeth Horton, has, since before January 31, 1992, operated the Little Darling Horton-Cotton Family Day Care at 3710 11th Street East in Bradenton, Florida. The location is Mrs. Horton's home, and she resides there with Alfrader L. Cotton, her companion, Craig E. Horton and Sheldon G. Horton, her sons, and Tangela D. Horton, her daughter. In January, 1992, Mrs. Horton submitted an application for a license to operate a family day care center at the stated location and listed the others noted above as residents. Thereafter, on July 9, 1992, June 28, 1993, July 11, 1994, July 18, 1994 and December 21, 1995, Mrs. Horton submitted application forms for renewal of her license. On each of the renewal application forms, those same individuals were listed as residents of the home. Mrs. Horton's brother, L. H., was not listed as a resident or in any capacity on any of the application forms. On or about December 3, 1993, a report of abuse of a minor female, A. M., born on February 12, 1984, was received in the Department. The substance of the allegation was that A. M., along with her little brother, born on March 6, 1985, were placed by their mother at the Respondent's home from about 5:00 PM until early the next morning each week night, while their mother was at work. The report further alleged that Mrs. Horton's brother, L. H., had molested A. M. while she was staying in the Horton home. He was alleged to have awakened her in the middle of the night while she was asleep in the Horton daughter's bedroom on the pretext of taking her to the bathroom, but fondled her breasts and vaginal area. This report was investigated by personnel of the Department and was classified as verified. A report of neglect was entered against Mrs. Horton arising out of her failure to supervise the children and a Hearing Officer from the Division of Administrative Hearings, after a formal hearing pursuant to Section 120.57(1), Florida Statutes, entered a Recommended Order recommending that the Department enter a Final Order amending the proposed confirmed report to a classification of unfounded and expunging Mrs. Horton's name from the case record and all Department records. The Hearing Officer found, however, that L. H. had committed the abuse, and this determination was subsequently affirmed by the Secretary of the Department in the Final Order entered in this case. In 1989, L. H. was found guilty in the Circuit Court in Manatee County of lewd and lascivious acts in the presence of a child eleven years of age or younger, in violation of Section 800.04, Florida Statutes, a felony, and was sentenced, among other things, to community control for two years followed by seven years probation. After his arrest for the assault on A. M., on June 28, 1995, his prior sentence was increased to seven years in prison. He was also tried in Circuit Court for Manatee County for sexual battery, and was, on that same date, sentenced for the second offense to life imprisonment, with the provision he serve no less than twenty-five years. Whenever an individual is issued a license to operate a family day care center, that person is provided with a copy of a handbook containing the rules of the Department of Health and Rehabilitative Services relating to the licensing and operation of those facilities. Included within that pamphlet is a copy of Department rule 10M-10.002, dealing with personnel, which requires that all persons who are members of the operator's family or who reside in the day care home must be screened as must be persons providing substitute care in the absence of the operator. The evidence regarding the status of L. H. is contradictory. A. M. indicates that L. H. would be at the center from about 10:00 PM at night, after Mrs. Horton picked him up at work; would be there when she, A. M., went to bed at some time after 9:00 PM and before 11:00 PM; and, most of the time, would also be there then next morning, having spent the night in the bedroom of Mrs. Horton's son, Craig. A. M. cannot recall if L. H. ate his meals at the Horton home or took his showers there, but she recalls that he did cook there several times. She never saw him change or wash his clothes there and she never saw any of his clothes in the closet. Though she contends she was never left alone with L. H. by Mrs. Horton, she claims she was touched on her private parts by him on several occasions in the early hours of the morning, while the others in the house were sleeping. A. M.'s mother does not know if L. H. lived at the Horton child care center or not. He was there sometimes at night when she dropped the children off, and he was always there when she picked them up the next morning. To the best of her knowledge, the children were never left alone with him. Mrs. Horton, on the other hand, while admitting she knew that her brother had been convicted of a felony regarding a sexual offense against a minor child, categorically denies that L. H. lived at her home. She admits that he visited there from time to time and admitted to Ms. Winfrey, the child care supervisor from the Department, that he spent the night there from time to time as well. According to Mrs. Horton, L. H. lived with their parents in a home in the next block east on 11th Street East. Respondent admitted at hearing to picking him up from work around 9:00 PM at times, but not regularly. She contended at hearing he would come to the house to watch TV and to play games with her son, but rarely did he stay and never did he spend the night. The probation officers who visited L. H. would sometimes come to her house to see him but would never come in. None of the probation officers ever said anything to her about L. H.'s being at her home with children being present. At no time until the report of abuse was filed did she have any idea that L. H. was behaving improperly with any children in her charge. When she found out what he had done, she told him not to come back to that house. Mrs. Horton's daughter, age 17, claims that L. H. did not live at the care center at any time. He did not wash his clothes there or do anything which indicated he lived there. Since she was older, she stayed up later than A. M., going to bed around 10:00 PM or so. As she recalls, L. H. would usually leave the house about 10 or 11:00 PM and she would see him leave often. She did not often go to bed while he was still there. Taken together, the evidence establishes that while L. H. may not have resided at the house on a permanent basis, he was there frequently enough to be considered a member of the family as defined in the Department rules.
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 denying Elizabeth Horton renewal of her license to operate a family day care center. DONE and ENTERED this 8th day of October, 1996, in Tallahassee, Florida. ARNOLD H. POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 8th day of October, 1996. COPIES FURNISHED: Raymond R. Deckert, Esquire Department of Health and Rehabilitative services, Room 500 400 West Dr. M. L. King, Jr. Boulevard Tampa, Florida 33614 Elizabeth Horton 3710 11th Street East Bradenton, Florida 34208 Alfrader Cotton Qualified Representative 3710 11th Street East Bradenton, Florida 34208 Gregory D. Venz Agency Clerk Department of Health and Rehabilitative Services Building Number Two, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard Doran General Counsel Department of Health and Rehabilitative Services Building Number Two, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether Petitioner's application for licensure as a family day care home should be granted.
Findings Of Fact Based on the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: Petitioner, Linda Richmond, formerly Linda Cook, applied for a license to operate a family day care at her residence. In connection with Petitioner's licensure application, dated December 17, 2001, the Department conducted a background screening of Petitioner, which included a review of the following: local and state criminal records; Florida Department of Law Enforcement reports; FBI records; records of the Florida Hot Line Information System; employment history; and affidavits of good moral character. Based on information obtained from the Florida Hot Line Information System, the Department denied Petitioner's application to operate a family day care home. According to the Notice of Denial dated June 12, 2002: [Y]our registration to operate a Family Day Care Home is being denied at this time due to the following: (1) Background screening revealed a prior incident of neglect of your children and inadequate supervision. The facts underlying the report demonstrates [sic] an inability to ensure the safety of children in your care to the level necessary to be registered as a Family Day Care Home. The Notice of Denial does not specify which background screening records the Department relied on in reaching its decision to deny Petitioner's application. However, in light of the evidence presented by the Department, the denial was apparently based on information included in a 1990 Abuse Report and/or a 1995 Abuse Report. The 1990 Abuse Report noted that Petitioner admitted using crack cocaine and having people come to her home for the purpose of using crack, but denied that she used drugs in her children's presence. Also, the 1990 Abuse Report indicated that one of Petitioner's minor children had been fondled by a man who was at the home for several days and that Petitioner "reported being in the home at the time of the alleged incident." Furthermore, according to the 1990 Abuse Report, the house in which Petitioner, her then husband, and her children lived was not clean and did not have electricity. The 1990 Abuse Report concluded that Petitioner had neglected her children. Based on the investigation, on or about October 25, 1990, the report was closed as "confirmed for conditions hazardous to health and all other maltreatments are indicated." The 1990 Abuse Report noted that "due to the condition of the home and the crack usage in the home by the parents," the children were placed in the home of their maternal grandmother. Finally, as to the disposition of the case and the services to be provided, the report stated that the risk and severity of harm to the children was low "in the grandparental home," that protective service supervision was needed, and that the case was referred to protective services for ongoing supervision. Petitioner admits that at the time of the 1990 Abuse Report and investigation related thereto, she was addicted to crack cocaine. However, Petitioner's credible testimony was that she never used crack or any illegal drug in her children's presence. Moreover, at the time one of her minor children was fondled by a man temporarily staying at the house in which the children lived with their father, Petitioner was estranged from her then husband, was not staying with him and the children, and was not aware of that incident until some time after the incident occurred. Notwithstanding the findings and conclusions in the 1990 Abuse Report, there is no evidence that Petitioner neglected or failed to supervise her children, as alleged by the Department. In late 1995 or early 1996, a second abuse report, the 1995 Abuse Report, was generated following an investigation into allegations that the maternal grandfather of Petitioner's children was physically abusing them. As a result of an investigation, the 1995 Abuse Report found that the maternal grandfather, with whom the Petitioner's children were living, had used excessive corporal punishment on them. The report was closed with a finding of verified maltreatment of the children by their maternal grandfather. During the time period covered by the 1995 Abuse Report and the maltreatment of Petitioner's children by their maternal grandfather, the children were not living with Petitioner. They were living with and in the custody of their maternal grandparents, having been placed with them by the State as a result of the findings and conclusions in the 1990 Abuse Report. As accurately noted in the 1995 Abuse Report, Petitioner's role at the time covered by the report was that of "parent not in home." Nothing in the 1995 Abuse Report indicates that Petitioner neglected or failed to supervise her children. Rather, it was Petitioner who called the Abuse Hot Line on December 19, 1995, after she observed her father hit one of her children so hard that the child fell to the ground. This incident occurred December 19, 1995, while Petitioner was at her parents' house to visit her children and give them Christmas gifts. The reason Petitioner called the Abuse Hot Line to report the December 19, 1995, incident described in paragraph 12 was that she cared about her children and perceived her father's action to be physical abuse of one of her children. Although Petitioner reported the December 19, 1995, incident the day it occurred, no one came out to investigate the matter. The following day, Petitioner reported the incident to her counselor at the Center for Drug Free Living, who then telephoned the Abuse Hot Line. The Notice of Denial fails to state any facts from either the 1990 Abuse Report or the 1995 Abuse Report which establish that Petitioner neglected or failed to adequately supervise her children. Moreover, neither the 1990 Abuse Report nor the 1995 Abuse Report supports the Department's allegations that Petitioner neglected or failed to supervise her children. Finally, the Department presented no evidence to support its allegations or to demonstrate Petitioner's "inability to ensure the safety of children in [her] care to the level necessary to be registered as a Family Day Care Home." Petitioner successfully refuted the Department's allegations that she neglected and failed to adequately supervise her children, even though she admitted that in 1990, she was addicted to crack cocaine. However, this admission by Petitioner, standing alone, does not establish the Department's allegations. After the 1990 Abuse Report was issued and prior to issuance of the 1995 Abuse Report, Petitioner faced her addiction and took action to turn her life around so that she could regain custody of her children. As part of Petitioner's rehabilitative process, she successfully completed a drug treatment program as evidenced by the fact that she has been "drug free" since September 15, 1995, or for more than seven years. In addition to the drug treatment program, Petitioner also participated in and completed a parenting class. After completing the drug treatment program and the parenting class, Petitioner regained custody of and was reunited with her children. In March 1996, Petitioner was awarded "supervised" custody of her children. Six months later, Petitioner was awarded permanent custody of her children. There is no indication that Petitioner neglected, abused, mistreated, or failed to supervise her children either prior to or after March 1996, when she regained custody of the children. Since successfully completing the drug treatment program and parenting class and regaining custody of her children, Petitioner has had a stable work history, has remarried, and has become an active member of a church in her community. From 1996 through 1999, Petitioner was employed as a housekeeper by Disney World. After leaving Disney World, Petitioner was employed at Sophie's Kids Learning Center, as a child care provider or "teacher" of toddlers. Petitioner is currently employed at Sophie's Kids Learning Center and has been employed there since 1999, except for a six-month period when she took leave to care for her daughter and grandchild. In letters of support, Petitioner is described as a good employee, one of the center's best instructors who is doing "excellent work with children of all ages." Petitioner is an active member of Salem Gospel Baptist Church and has been for the past two years. Petitioner attends church services regularly, is a member of the church choir, and teaches a children's Sunday School Class. Letters of support from the pastor of the church and a church member indicate that Petitioner is a committed member of the church who works with the children in the church. These letters also state that Petitioner has gained and enjoys the respect of the parents in the church as well as those not in the church.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services enter a final order granting Petitioner's application for licensure to operate a family day care home. DONE AND ENTERED this 13th day of December, 2002, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD 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 December, 2002. COPIES FURNISHED: Richard B. Cato, Esquire Department of Children and Family Services 400 West Robinson Street Suite S-1106 Orlando, Florida 32801-1782 Linda Richmond 25 West 14th Street Apopka, Florida 32703 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
The Issue The issue is whether Petitioners' application for a foster home license should be denied because of their demonstrated inability or unwillingness to follow the requirements of an agency regulation, as alleged in Respondent's letter dated August 2, 1999.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In this proceeding, which bears some resemblance to a child custody dispute, Petitioners, Lawrence and Jocelyn Dustin, seek the issuance of a foster home license from Respondent, Department of Children and Family Services (DCFS). In a letter dated August 3, 1999, DCFS denied the application on the ground that due to Petitioners' "actions and attitudes," which led to the Circuit Court for Citrus County (the court) removing a child from their custody, DCFS had "significant concerns about [their] inability or unwillingness to be a team player" in contravention of Rule 65C-13.010, Florida Administrative Code. Petitioners denied the allegations and requested a formal hearing to contest the proposed action. Through circumstances unknown, Petitioners became acquainted with C. A., the natural mother of T. H., a female born on December 16, 1987. Because of various difficulties experienced by the natural mother in caring for her daughter, and as an alternative to foster care, the court entered an order on June 12, 1995, allowing Petitioners to temporarily serve as substitute care parents for T. H. Because a reunification plan involving the child and natural mother had not been implemented by late 1996, the matter was referred by the court to a mediator to establish a new case plan. A mediation conference was held on March 27, 1997, and a written mediation agreement was formalized in handwritten form by the natural mother's attorney at the conclusion of the conference. The agreement was approved by the court on May 16, 1997. Petitioners attended the conference and signed the handwritten agreement, but they claimed that they left the meeting before it was concluded and that certain matters agreed upon were not incorporated into the agreement. This was partially confirmed by T. H.'s guardian ad litem, who also attended the conference. The agreement approved by the court provided, among other things, that "visitation between the [natural] mother/stepfather and T. [H.] shall continue on a weekly basis with the modification being that Ralph Hunter, the case worker [from DCFS], be the supervising party." In other words, the weekly visitation by the mother with her child could take place at a variety of places, such as a McDonald's Restaurant (McDonald's), the DCFS office, or a park, so long as Ralph Hunter (Hunter) was present. Although Petitioners contended that the parties orally agreed at the mediation conference that such visits could only take place in the local DCFS office, this condition was not incorporated into the agreement which they signed. Further, there is no evidence that Petitioners complained to the court about this apparent omission in the agreement, or even if they did, that it was added to the agreement. On July 16, 1997, the natural mother sought permission from Hunter to meet T. H. at a local McDonald's for visitation purposes. Although this was an "extra" visit, apparently it was to replace one which would be missed because Petitioners were leaving on an out-of-state vacation within a couple of days. Hunter agreed to this request, and he instructed Jocelyn Dustin (Jocelyn) to bring T. H. to his office that day. After the child arrived, Hunter carried her to McDonald's where her mother and stepfather were waiting. Jocelyn explained that because it was a rainy day with thunder and lightning, and T. H. was extremely frightened under those conditions, out of concern for the child she followed Hunter and T. H. to McDonald's. At the same time, Jocelyn believed that the visit violated the court's order regarding visitation rights since she incorrectly interpreted it to mean that visitations could only take place at the DCFS office. For the above reasons, Jocelyn drove up beside Hunter's car at McDonald's, opened the passenger door, and asked him if they could all meet at the DCFS office to discuss why the agreement was being violated. Jocelyn then pulled T. H. out of Hunter's car, told him that she was returning to the DCFS office, and left the premises. Thereafter, Jocelyn drove to her mother's house in nearby Hernando, Florida, where she telephoned a DCFS representative. After speaking with the representative, Jocelyn brought the child to the DCFS office. A DCFS witness established that despite the well- meaning intentions of Jocelyn, her conduct that day called into question her ability to work with DCFS and the natural parent in achieving the court's goal of eventually reunifying the child and mother. Five days later, or on July 21, 1997, the natural mother, through her attorney, filed with the court an Emergency Motion to Remove Child from Foster [sic] Home. Among others, the motion contained allegations that Petitioners "had continuously interfered with the visitations between the child and her mother," had "physically wrestled the child from Mr. Hunter's hands and sped off in a motor vehicle with the child," and had "become increasingly difficult to deal with." The motion asked that the court enter an order "restraining and enjoining the foster [sic] parents from removing the child from the jurisdiction" and removing "the child from [Petitioners'] custody and control pending further Order of this Court." At the hearing in the instant case, a DCFS witness conceded that the foregoing allegations were not wholly accurate, and that Jocelyn had not "continuously interfered with the visitations," had not "physically wrestled the child from Mr. Hunter's hands," and had not "become increasingly difficult to deal with." This is apparently due to the fact that the natural mother's attorney, and not DCFS, drafted the motion. After an ex parte hearing in which neither Jocelyn nor the child's guardian ad litem were allowed to "give input," on July 28, 1997, the court entered an Order Modifying Placement to Foster [sic] Care in which it found a modification in the child's placement to be in its best interest. T. H. was placed in the temporary custody of DCFS, but Petitioners and the natural mother were granted "supervised visitation" rights. Although the child was later returned to the natural mother's custody, she has been in foster status since June 1999, and a termination of parental rights is now being sought by DCFS. On an undisclosed date in 1999, Petitioners filed an application for licensure as foster parents. They did so because of their love of children and their desire to serve as foster parents for older children whose parental rights had been terminated. Although the assertion has been made in this case that Petitioners would not be suitable foster parents because of the incident in 1997, for several years, Jocelyn has satisfactorily served in the court system as a guardian ad litem for a number of foster children. This demonstrates her ability to work with both the court and DCFS in matters concerning foster children. In addition, there is no evidence that she or her husband would pose a threat to the safety or welfare of foster children. Except for the one isolated incident which occurred some 30 months ago when Jocelyn sincerely thought that she was acting in T. H.'s best interests, there is no evidence that Petitioners are unwilling or unable to be a "team player" with the DCFS in providing care to foster children, or otherwise fulfill their foster care responsibilities.
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 granting the application of Petitioners for a foster home license. DONE AND ENTERED this 10th day of January, 2000, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 10th day of January, 2000. COPIES FURNISHED: 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 James F. Cummins, Esquire 103 West Dampier Street Inverness, Florida 34450-4209 Ralph J. McMurphy, Esquire Department of Children and Family Services 1601 West Gulf Atlantic Highway Wildwood, Florida 34785-8158
The Issue The issue to be resolved in this proceeding is whether Petitioner, a family day care center owner/operator, committed violations of the Florida Statutes and the Florida Administrative Code, as alleged by Respondent, sufficient to justify Respondent's imposition of civil penalties upon Petitioner's license.
Findings Of Fact On October 26, 2000, Petitioner was notified by Respondent's representative that she was in violation of Section 402.302(7)(d), Florida Statutes, by "being over ratio" by having more than ten children in her care. Petitioner signed an acknowledgement of the notification. On October 30, 2000, Petitioner was formally notified by mail that she was over ratio. In the letter, Petitioner was notified that another violation would result in the imposition of an administrative fine. On July 16, 2002, Clark Henning, a day care licensing counselor for Respondent, made a routine inspection of Petitioner’s facility and determined that 13 children were present. On July 22, 2002, Respondent sent a certified letter to Petitioner advising her that she continued to be over ratio and that any future violations would result in the imposition of an administrative fine. Petitioner signed the certified mail receipt. On August 22, 2002, Henning made an unannounced inspection of Petitioner’s facility and observed that 14 children were in the facility. In accordance with requirements of Section 402.302(7), Petitioner is licensed to provide care to children solely in her home. During the course of his July 16, 2002 inspection, Henning observed that Petitioner was providing day care services in an out-building unattached to her home. At that time, Petitioner signed an acknowledgement of notification that Petitioner was prohibited from rendering care in an out- building. On July 18, 2002, Henning made an unannounced inspection of Petitioner's facility and noted that day care services continued to be provided in the out-building. On July 22, 2002, Respondent sent a certified letter to Petitioner advising her that if she continued to render day care services in the out-building, future violations would result in the imposition of an administrative fine. Petitioner signed the certified mail receipt. On August 22, 2002, Henning made an unannounced inspection of Petitioner’s facility and saw that the out-building was continuing to be used for day care. Section 402.302(3), Florida Statutes, requires that any person providing child care must first be properly background screened. On July 16, 2002, during his routine inspection of Petitioner’s facility, Henning observed an adult female, Molly Hilbert, providing care for the children. On July 16, 2002, Petitioner signed an acknowledgement of notification that Molly Hilbert had not been background screened. On July 22, 2002, Respondent sent a certified letter to Petitioner advising her that having Molly Hilbert in her employ without a background screening would, in the event of any future violations, result in the imposition of an administrative fine. Petitioner signed the certified mail receipt. In the course of his August 22, 2002 unannounced inspection of Petitioner’s facility, Henning observed Hilbert working with three children.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, it is RECOMMENDED that a final order be entered imposing an administrative penalty of $100 upon Petitioner's license for each of the three violations alleged in the Administrative Complaint for a total of $300. DONE AND ENTERED this 21st day of January, 2003, in Tallahassee, Leon County, Florida. DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of January, 2003. COPIES FURNISHED: Edward T. Cox, Jr., Esquire Department of Children and Family Services 1601 West Gulf Atlantic Highway Wildwood, Florida 34785-8158 Lillie Shells Shell's Family Day Care Home 9340 County Road 231 Wildwood, Florida 34785 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 the Petitioner, the Department of Health and Rehabilitative Services (HRS), should revoke or suspend the foster care license of Larry and Kathleen Abbott.
Findings Of Fact Larry and Kathleen Abbott have been licensed foster parents for a number of years. They were licensed in 1983 in HRS District 6 (Hillsborough County and Manatee County) and in 1986 in HRS District 5 (Pinellas County). Despite some criticism by HRS staff, their license was renewed annually since 1986. Their last license expired and was required to be renewed on October 25, 1991, after the commencement of this proceeding. By their Agreement to Provide Foster Care for Dependent Children, the Abbotts agreed to "hold confidential all information about the child and his family" and to "discuss such information only with representatives of the Department or with appropriate specialists at the request of the Department." On or about January 28, 1990, HRS initiated proceedings to place a female baby named Andrea, who was born on June 28, 1989, in shelter care due to her failure to thrive and her mother's lack of parenting skills. On or about February 23, 1990, the child was placed in foster care in accordance with a Performance Agreement. The goal under the Performance Agreement was to return the child to the care of her mother by August 31, 1990. (This goal was later extended to February 23, 1991.) However, meanwhile, due to the mother's lack of parenting skills and multiple allegations of abuse, the foster parents agreed not only to provide the child with adequate food, clothing, shelter, supervision and affection, but also to report to HRS any concerns regarding visitation with the mother. Since the Abbotts were not Andrea's initial foster parents, they did not sign the Performance Agreement. However, although they never signed the agreement, when they became Andrea's foster parents on or about April 30, 1990, they also agreed to the terms of the Performance Agreement. When the Abbotts got Andrea, she had a medical problem called "G.U. Reflux." HRS wanted the Abbotts to have this condition appropriately followed by a physician and wanted it documented by a physician that the problem had cleared. An appointment scheduled for this purpose had to be cancelled for some reason and, while discussing rescheduling the appointment with the physician's medical staff, Mrs. Abbott reported her observation that the problem already had cleared. Based on the report from Mrs. Abbott, the appointment was not rescheduled, and the physician closed the case based on Mrs. Abbott's report. HRS apparently feels that the Abbotts were less than impartial in their evaluation of Andrea's medical condition. HRS witnesses asserted that the Abbotts decided early on that the child's symptoms that resulted in the G.U. Reflux diagnosis actually were caused by the natural mother's physical abuse and neglect of the child. The HRS witnesses contended that the Abbotts' beliefs warped their judgment and impelled them, inappropriately, to cancel the doctor appointment based on their beliefs, and in order to prove their beliefs to be correct. But the evidence in this case did not prove HRS' contentions. From the outset of the Abbotts' foster care for Andrea, the Abbotts were very interested in knowing all of the background about Andrea, including the allegations against her natural mother. The natural mother was allowed to keep her two other children. The Abbotts were interested to know how the mother was caring for the other two children, in part as it might be relevant to the ultimate disposition of Andrea's case but also in part for the sake of the other children as well. Mrs. Abbott seemed to question whether the HRS investigations on the other children, which were closed as "unfounded," were properly conducted. But there is no evidence that the Abbotts did or said anything in these earlier time periods in their foster care for Andrea that HRS viewed to be improper. At some point relatively early in the Abbotts' foster care of Andrea, Mrs. Abbott pointed out to her HRS foster care counselor that Andrea's name was similar to that of another child living in the home, and Mrs. Abbott wanted to know if it would be permissible to call Andrea by a nickname. The HRS counselor said that would be fine. Later, near the holidays in late 1990, Andrea's natural mother expressed concern to the HRS counselor that the Abbotts had been calling Andrea by the name Nicole and that she was not responding to Andrea any more. The HRS counselor spoke to the Abbotts and asked them to stop calling the child Nicole. She explained that, when she authorized the Abbotts to call Andrea by a nickname, she did not mean they could call her by a different proper name. The Abbotts, who now see the error of judgment that they made, immediately stopped calling the child Nicole. As the goal of reunification by February 23, 1991, approached, Mrs. Abbott began to question the propriety of going ahead according to schedule. HRS protective services had raised questions regarding the natural mother's readiness to take care of Andrea. The HRS counselor also had made statements to Mrs. Abbott which made her suspicious that the counselor's supervisor would not make the decision to reunify the family on the basis of the best interests of the child. (It was intimated that the supervisor might be more concerned with her unit's statistics.) At bottom, the Abbotts thought reunification should be postponed; HRS, especially through the counselor's supervisor, took the position that reunification should go forward as scheduled. The Abbotts also disapproved of the natural mother's male friend, who was cohabiting with her in her apartment. The HRS counselor told Mrs. Abbott that it was not permitted for the natural mother to have a male friend living with her in her apartment while she was receiving certain welfare benefits. She told Mrs. Abbott that the natural mother would be in trouble if the landlord knew. HRS asserted that Mrs. Abbott took it upon herself to tell the landlord, but there was no evidence upon which such a finding could be made.2/ One day, on or about January 11, 1991, the natural mother did not make a scheduled appointment for purposes of visitation with Andrea. Mrs. Abbott understood that the natural mother sometimes worked at the day care facility located at the apartment complex where the natural mother lived. This was the day care facility utilized by the natural mother for her other children. It was also proposed for Andrea after reunification. Mrs. Abbott identified herself to the day care director in terms of Andrea, the natural mother and the children at the day care. The natural mother was not there. No finding can be made as to the subject matter of the remainder of the conversation.3/ The day care director reported some of the conversation with Mrs. Abbott to the HRS protective services staff responsible for the children, who brought the matter of Mrs. Abbott's alleged "meddling" and "breach of confidentiality" to the attention of the HRS counselor and her supervisor. They reprimanded Mrs. Abbott, who became even more suspicious of HRS and its protective services staff. On or about April 5, 1991, Andrea was returned to the Abbotts after a scheduled weekend visitation with the natural mother.4/ Mrs. Abbott observed marked and unusual redness and swelling in the child's genital area and became concerned that the natural mother's male friend might be sexually abusing the child. Although she thought it was diaper rash, the HRS foster care counselor authorized Mrs. Abbott to have the child examined by a physician at the Bayfront Medical Center. The doctor's nurse agreed with Mrs. Abbott that the redness was too concentrated to be diaper rash, reinforcing Mrs. Abbott's beliefs. The doctor prescribed Desitin and sitzbaths, and had Mrs. Abbott call back for test results. The eventual diagnosis was that the child had a bacterial staph infection.5/ Despite the diagnosis, Mrs. Abbott continued to maintain strong feelings that the child was being physically abused. These suspicions were instigated in part by comments from the doctor that the symptoms could come from being touched by dirty hands, from Mrs. Abbott's understanding that the natural mother's male friend worked as manager of an auto service station, and from her having seen him with dirty hands as a result of his work.6/ Mrs. Abbott had several discussions with the HRS foster care counselor about her suspicions. The HRS counselor was unable to convince Mrs. Abbott to drop her suspicions in light of the absence of solid evidence of sexual abuse. Mrs. Abbott felt there were indications that Andrea was "severely traumatized" by visits with her natural mother. But HRS personnel perceived no evidence of this. At this point, HRS and the Abbotts essentially disagreed as to how Andrea's case should proceed. HRS thought that there was no basis on which to change the goal of reunification. Mrs. Abbott felt that reunification should be postponed and also suggested that it was HRS' responsibility to secure a guardian ad litem. HRS decided that a meeting should be held among all concerned to resolve the disagreement. The meeting was held on or about April 9, 1991.7/ From opening remarks made by the counselor's supervisor, Mrs. Abbott felt that the purpose of the meeting was not to discuss the issues to reach a solution but to present a united HRS front to press forward for reunification. Mrs. Abbott felt that, in that atmosphere, there was no point in her speaking against reunification, but she continued to maintain her negative feelings about it and resolved in her mind to continue to oppose reunification on other fronts. She asked the HRS counselor if it was permissible to contact the chairperson of the reunification committee directly and was told that there was nothing to prevent her from doing so. On or about April 11, 1991, the HRS counselor authorized Mrs. Abbott to have the child seen by a child protective team (CPT) physician. The CPT physician affirmed the previous diagnosis and prescribed an antibiotic. The Abbotts did not immediately fill the prescription. They told the HRS counselor that they did not have Medicaid authorization to have the prescription filled through Medicaid. The counselor thought the authorizations had been sent to the Abbots but promised to send or deliver to them another one. On one occasion, when the counselor was at the Abbott house, the counselor went to her car to get the necessary form, but discovered she did not have any with her. On another occasion, the counselor was to give Mrs. Abbott the authorization form at a meeting they were at, but they both forgot to take care of that item of business. Meanwhile, the Abbotts continued to use Desitin.8/ On or about April 19, 1991, after the redness and swelling seemed to the Abbotts to be going away, the natural mother had Andrea for another overnight visit. Still suspicious, Mrs. Abbott had asked the HRS counselor to check the child's genital area as soon as possible after the visit. When the Abbotts got the child back from the HRS counselor, Mrs. Abbott checked the child herself and was surprised and upset to see more redness and swelling. She immediately telephoned HRS and spoke with the counselor's supervisor. She was instructed to bring the child to the child protection center immediately. When the CPT physician learned that the Abbotts had not yet started the prescription from over a week earlier, she became upset and threatened to telephone the Florida abuse registry to report the Abbotts for medical neglect for failure to obtain and administer the prescription. The HRS supervisor intervened and dissuaded the physician from making the call by assuring her that the prescription would be obtained and administered immediately. The CPT physician's diagnosis was that, although sexual abuse could not be ruled out, the problem was more likely secondary to less than adequate diaper changing and persistence of the previous staph vaginitis. Mrs. Abbott did not accept the diagnosis but continued to suspect sexual abuse. She opposed further visitation with the natural mother so long as the male friend resided in the same apartment. Eventually, a reunification meeting was held. The Abbotts did not attend. It was decided to reunify the family. The Abbotts cooperated in making all necessary final arrangements to get Andrea ready. Reunification went forward on or about May 20, 1991. After reunification, Mrs. Abbott continued to show interest in Andrea. After taking a two-week vacation, Mrs. Abbott got permission from the HRS counselor to telephone once a week to see how Andrea was doing. Mrs. Abbott also asked to know the name and address of Andrea's private day care, but the counselor said she could not have that information. After five weeks, the counselor's supervisor had the counselor cut off any further contact with the Abbotts concerning Andrea. Mrs. Abbott said to let her know if HRS had to take Andrea back. She said that she and her husband had much invested in caring for Andrea and that they felt as if she were their own child. If HRS had to take Andrea back, the Abbotts wanted her back and would be interested in adoption. Later, the Abbotts asked for another assignment essentially to help take their minds off of Andrea. On two occasions, Mrs. Abbott criticized the care being provided by other foster parents and suggested that the foster children be transferred to the Abbotts. HRS viewed this as evidence that the Abbotts had become so attached to Andrea that they had lost their good judgment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Petitioner, the Department of Health and Rehabilitative Services (HRS), enter a final order suspending the foster care license of Larry and Kathleen Abbott for 90 days. 9/ RECOMMENDED this 5th day of March, 1992, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of March, 1992.
The Issue The issue for consideration in this case is whether Petitioner should receive an exemption from disqualification from caring for children, under the criteria set out in Chapter 435, Florida Statutes.
Findings Of Fact At all times pertinent to the issues herein, the Respondent, Department of Children and Family Services, had the responsibility for licensing and overseeing the operation of foster care of children in this state, and, under the provisions of Chapter 435, Florida Statutes, of evaluating and ruling on requests for exemption from disqualification to serve as foster parents submitted by individuals otherwise disqualified from performing that function. Petitioner, Aaron B. Hodges, is currently 29 years old. His wife, Sue, is 38. They have been married since he was 21. The couple has a child of their own, and Mrs. Hodges has an 18 year-old daughter by a previous marriage. On November 20, 1995, the family resided at 4000 North Combee Road in Lakeland, Florida. They operated a family business at that address, in which both participated; a public ranch at which they offered farm parties, trail rides, and wedding receptions; and provided facilities for other similar events. It was a high-stress operation, which occupied the greatest part of the time of both individuals seven days a week. As a result of the constant stress, and, as a contributing factor, the relative immaturity of Petitioner, the couple had undergone a period of domestic strife which culminated in several serious arguments. None of those had resulted in physical contact between the parties. However, on November 20, 1995, the couple was involved in another dispute, as a result of which Petitioner was leaving the family home. He was threatening to take with him some of the parties’ personal property. Because a wedding reception was scheduled for that weekend, Mrs. Hodges objected to his taking the stereo, and strong words were passed between the parties. Mrs. Hodges’ daughter inserted herself into the dispute. Petitioner lost his temper and attempted to force his way back into the house. When he did so, the door struck Mrs. Hodges and she received an abrasion to the ear. In addition, her daughter tried to interpose herself between Petitioner and her mother. In response, Petitioner pushed her backward which resulted in the daughter stepping off the porch, which was one step above the ground. She did not fall, nor was she injured as a result of the incident. Nonetheless, the sheriff’s office was called twice that evening. The first time a deputy responded, Petitioner was not there and the deputy spoke with the wife and daughter outside the residence. At that time, Deputy Barnett observed some redness to the wife’s ear, and he requested the two women write out their statements as to what happened. The statements written by the two women somewhat exaggerated the incident as a result of Mrs. Hodges’ desire to get Petitioner out of the house. At hearing, both women recanted the more serious aspects of their previous allegations, admitting that they had made their statements present a picture of Petitioner’s actions which was far worse than reality. Neither mother nor daughter had or would recount a firm recollection of the incident by the time of hearing, insisting they could not remember the details. Both were sure, however, that neither was hurt nor was either afraid for their physical safety as a result of the Petitioner’s actions. Both described Petitioner as a non-violent person who, at worst, suffered from an immature reaction to stress. After taking the statements of the two women, Deputy Barnett departed the residence but returned somewhat later when Petitioner was present. At that time, based on his prior interview with Mrs. Hodges and her daughter, the deputy arrested Petitioner for battery which consisted of striking Mrs. Hodges and grabbing her about the neck, and throwing a roll of tape at the daughter, in addition to pushing her off the porch. Barnett acted in a manner consistent with a sheriff’s department policy of arresting any perpetrator of an incident of domestic violence. At the time of the arrest, Petitioner was not hostile to the deputy and was cooperative. The story he told the deputy at the time was consistent with what Mrs. Hodges had told the deputy previously. Petitioner stated that his wife had pointed a rifle at him. In reality, though a rifle was used as a weapon by Mrs. Hodges, she did not point the muzzle at Petitioner. She grabbed it by the barrel and used it as a club. Taken together, it would appear that the altercation transpired as was initially reported to the deputy. No doubt Petitioner was aroused and threatened as well as committed a battery on his wife. It is also found that his actions toward her daughter resulted in the girl’s stepping backward off the porch. Petitioner was kept in jail overnight and subsequently released. At his arraignment in County Court on December 4, 1995, Petitioner, appearing without counsel, pleaded guilty to a misdemeanor charge of domestic violence (spousal battery). He was adjudicated guilty and placed on probation for a period of one year. A condition of his probation was that he attend a domestic violence counseling program, perform 30 hours of community service, and pay a fine of $156.50. Petitioner successfully completed all the terms of his probation. The counselor who conducted the court-ordered domestic violence course, James N. Barnett, in a letter dated October 30, 1997, described Petitioner as an excellent participant who was regular in his attendance and attentive in every way. Based on his personal interaction with Petitioner, Mr. Barnett found him to be concerned, sincerely motivated, and of excellent character. Petitioner and his wife have now applied to be foster parents for a young boy, V., for whom Mrs. Hodges has been a foster parent in the past. The child has stayed in touch with her since he was returned to his parents, but he is now back in foster care, and both the child and his mother want him placed in the Hodges’ home. Even after Petitioner’s arrest and conviction, and with the knowledge thereof of the Department, the child was placed with the Hodges in a non-relative placement for six months. The Department did not question the placement nor indicate, at that time, that Petitioner’s conviction was a problem. However, after the six months, Mrs. Hodges had a miscarriage and V. started acting up, and Mrs. Hodges tried to get him placed in the Baptist Children’s home, thinking that was a good place for him. However, V. was placed in a home for delinquent children instead, and when Mrs. Hodges tried to get him back, she was told she would have to apply to be a foster parent. When she and Petitioner did so, they were rejected because of Petitioner’s conviction. Mr. Richardson, a child protective investigator for the Department, met Petitioner and his wife approximately a year to a year and a half ago as a result of their care of a minor child client of his, V., for whom they provided care in the past. He found their home to be an excellent environment and a good place for the child, who was happy there. The child had bonded with both Petitioner and his wife, and Richardson is of the opinion that it would be appropriate for the child to be placed there again. On the other hand, Barbara Sykes, a family services counselor for the department and home finder for District 14, did a home study of the Hodges' home for a specific child, presumably V., at the request of the child’s foster care counselor. As a part of her investigation, she interviewed both Mr. and Mrs. Hodges. When she went to the home, Ms. Sykes was not aware of the charges of domestic violence. However, the Hodges were very forthcoming in talking about it when it came up. The Department is very careful regarding issues of domestic violence, and foster children are removed from a foster home when the issue comes up. Based on the information presented to her, Ms. Sykes concluded there were some unresolved questions as to what actually happened on the night of November 20, 1995. Because of this, she did not complete the home study; she was of the opinion that the issue of an exemption had to be resolved before she could complete it. Nonetheless, based on what she saw and heard at that time, she concluded the home of Petitioner and his wife was not a suitable placement. However, in addition to his attendance in the court- ordered domestic violence program, Petitioner also sought counseling with James R. Johnson, his friend and a minister also licensed as a pastoral counselor, who worked with Petitioner in the area of anger management. As a result of their ongoing relationship, Reverend Johnson has come to the opinion that Petitioner has grown and bettered himself and has learned how to handle stress and anger without reacting to it with impulse. He noted that Petitioner is very good with children and he would have no hesitation trusting Petitioner with the care of his own children if he and his wife were to go out of town. This good opinion of Petitioner, and the conviction that he is very good with and no danger to children, is shared by Ms. Mulvahill, a former employee of the Hodges; Mrs. Hodges’ sister, Mrs. Smith; and Mrs. Murphy, the foster parent to V.’s sister. They all are of the opinion that Petitioner has grown and learned how to control stress and anger and were impressed with the rapport he develops with children and the respect they show him. Because Petitioner’s conviction of the misdemeanor domestic violence charge disqualifies him from being licensed as a foster parent, or of working with foster children, a screening committee meeting was held under the provisions of Section 435.07, Florida Statutes, to determine if Petitioner had demonstrated his rehabilitation to a degree sufficient to support granting him an exemption from disqualification. The committee was chaired by Malcolm Miller, a Department screening coordinator. At the meeting, Mr. Miller was troubled because he did not see what Petitioner wanted to present. Petitioner brought with him only isolated bits and pieces of the documentation sought. In addition, Petitioner appeared reticent and reluctant to discuss the matters at issue to the point some committee members questioned his honesty. Mrs. Hodges seemed to speak for him. At hearing, Petitioner admitted that his presentation at the committee meeting was not fully enlightening, but he claimed the entire process was a humiliating experience for him and intimidated him. This is understandable. He was far more articulate at the instant formal hearing, and presented a favorable impression. It is not difficult to see where the committee could have come to the conclusion that Mrs. Hodges spoke for her husband. Even at the more formal instant hearing, she was not at all reluctant to speak out. The committee asked many questions of Petitioner that Mr. Miller felt were not satisfactorily answered. On the issue of the previous arrests, Petitioner denied any, when in reality his record shows an arrest in 1991 for disorderly conduct. While there was no substantial evidence to show that the instant (1995) incident was alcohol-related, the committee seemed concerned that alcohol was also a problem for Petitioner. In substance, the committee was of the opinion there was a risk this type of conduct could occur again, and the length of time since the incident, only slightly over two years, was not sufficient to support the granting of an exemption. Generally, the Department requires a period of five years to demonstrate rehabilitation. Mr. King, also a member of the committee, concluded that Petitioner had not had enough counseling for domestic violence to indicate rehabilitation, even though Petitioner had completed the court requirements. Counseling, not elapsed time, was the overriding consideration for Mr. King.
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 granting Aaron B. Hodges an exemption from disqualification from serving as a foster parent. DONE AND ENTERED this 21st day of July, 1998, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 21st day of July, 1998. COPIES FURNISHED: Suzanne Harris, Esquire 6700 South Florida Avenue Suite 31 Lakeland, Florida 33813 Jack Farley, Esquire Department of Children and Family Services 4720 Old Highway 37 Lakeland, Florida 33813-2030 John S. Slye General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700 Gregory D. Venz Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
The Issue The issue is whether Respondent properly denied Petitioner's request for exemption from disqualification from employment as a family foster home parent.
Findings Of Fact In 1989, Petitioner intervened in a fight that was taking place on the premises of an condominium complex managed by Petitioner and his wife. In order to stop the fight, Petitioner picked up a broom handle and hit one of the participants. Several months later, Petitioner was charged with aggravated assault. In August of 1990, Petitioner pled nolo contendere to the offense of aggravated assault, a third degree felony. The circuit judge accepted Petitioner's plea, withheld adjudication of guilt and imposition of sentence, and placed Petitioner on probation for four years. In October of 1990, the circuit judge entered an order reducing Petitioner's probation from four years to two years. The circuit judge modified Petitioner's probation to delete the requirement that Petitioner make restitution in July of 1992. At the conclusion of the two year period, Petitioner successfully completed his probation. In February of 1995, Petitioner's daughter was injured in a domestic dispute in her home. When Petitioner arrived at his daughter's residence, the police directed him to wait outside. When Petitioner refused to cooperate, the police arrested him. The greater weight of the evidence indicates that Petitioner did not assault the police officers. The state attorney filed an information in April of 1995 charging that Petitioner resisted arrest without violence. In the mean time, Petitioner and his wife filed an application to become foster parents. Respondent's review of the application revealed that Petitioner previously served two years probation for aggravated assault. Respondent also became aware of Petitioner's pending charge for resisting arrest without violence. On or about July 12, 1995, Respondent notified Petitioner that he was disqualified from being licensed as a family foster home parent because of the 1989 felony offense for aggravated assault. Petitioner requested exemption from disqualification. On or about September 8, 1995, Respondent conducted an exemption hearing to consider Petitioner's request for exemption from disqualification. The exemption review committee was particularly concerned about Petitioner's pending case. By letter dated September 18, 1995, Respondent denied Petitioner's request for exemption. Petitioner requested a formal hearing by letter dated September 27, 1995. In October of 1995, Petitioner signed a deferred prosecution agreement in which he admitted that the facts alleged in the information charging resisting officer without violence to his person were true and correct. The state attorney dismissed the 1995 case charging that Petitioner resisted arrest without violence on January 30, 1996. On or about February 19, 1996, Respondent conducted a second hearing to consider Petitioner's request for exemption from disqualification. The exemption review committee confirmed their original decision to deny Petitioner an exemption. Petitioner is the parent of two living adult children and one deceased adult child. He has been interested in helping young people all of his adult life. Over the years, Petitioner has been a positive role model for the youth in his community as well as his own children. Petitioner and his wife have always provided a stable family environment for their family with an emphasis on the development of a strong work ethic. Together they valiantly faced the challenge of coping with a severely disabled child until his death. Both of them are committed to giving of themselves and sharing their home with children in need. Petitioner seeks to become a family foster home parent for children with special needs. Specifically, the children have a DSM-III diagnosis for a mental health disorder and been identified as presenting exceptionally challenging behaviors. Working with emotionally handicapped children requires a particularly high degree of patience. Children with behavior problems create confrontational situations; therefore, the foster parent of such children must maintain a calm demeanor regardless of the circumstances. Petitioner's reputation as a man of integrity and a productive member of society is commendable. However, his responses to two emotional situations in 1989 and 1995 create a question whether he would always react appropriately to the "acting out" behavior of children. Petitioner has not provided clear and convincing evidence that he is entitled to an exemption from disqualification from employment as a family foster home parent.
Recommendation Based upon the findings of fact and the conclusions of law, it is recommended that Respondent enter a Final Order denying Petitioner's request for exemption from disqualification from employment as a family foster home parent. DONE and ENTERED this 1st day of May, 1996, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD, 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 1st day of May, 1996. APPENDIX CASE NO.95-5618 The following are the Hearing Officer's specific rulings on the findings of facts proposed by Respondent in its proposed findings of fact. Petitioner's Proposed Findings of Fact Petitioner did not file Proposed Findings of Fact. Respondent's Proposed Findings of Fact 1. Accepted in Findings of Fact 5 of this Recommended Order. 2-3. Accepted in Findings of Fact 6 of this Recommended Order. 4-5. Accepted in Findings of Fact 7 of this Recommended Order. 6. Accepted in Findings of Fact 8 of this Recommended Order. 7. Accepted in Findings of Fact 9 of this Recommended Order. First sentence accepted as restated in the preliminary statement of this Recommended Order. 8A, 8B, and 8C accepted as restated in Findings of Fact 2, 4 and 8 respectively. 8D--accept that C.L. disputes his guilt; greater weight of evidence shows C.L. pled nolo contendere to aggravated assault and served term of probation; greater weight of evidence shows C.L. signed a deferred prosecution agreement admitting the facts involving the charge of resisting arrest without violence. 8E accepted in Findings of Fact 10 and 11 of this Recommended Order. 8F accepted in Findings of Fact 12 of this Recommended Order. Accepted in Findings of Fact 13 of this Recommended Order. COPIES FURNISHED: C. L. (Address of Record) Ellen D. Phillips, Esquire Department of Health and Rehabilitative Services 210 North Palmetto Avenue Suite 412 Daytona Beach, Florida 32114 Gregory D. Venz, Agency Clerk Department of Health and Rehabilitative Services Building 7, Suite 728 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard Doran, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
