The Issue The issue in this case is whether the Respondents' application for re-licensure of their therapeutic foster home should be approved.
Findings Of Fact The Respondents have operated a licensed foster home since 1994 and have operated a therapeutic foster home since 2011. The Respondents' foster home was originally licensed under the supervision of Lee County Mental Health Center, which was the local agency responsible for placing children in the home. In 2009, responsibility for supervision of the home was transferred to "Florida MENTOR" (MENTOR), which also assumed the responsibility for placement of children in the home. The children placed in the Respondents' foster home have been between eight and 11 years of age. Children placed in therapeutic foster homes have significant special needs and can be emotionally unstable. A safe and supportive therapeutic environment is required for their protection. The Respondents' license was valid through September 30, 2011. On August 3, 2011, the Respondents applied for renewal of the license. Florida Administrative Code Rule 65C-13.027 requires that changes in a licensee's household composition or employment be reported within 48 hours of the event. When the application was filed, the Respondents disclosed that their adult daughter and her three children had been residing with them for approximately three weeks. Prior to the application, the Respondents had not advised MENTOR that there had been any change in household composition. Mr. Williams became unemployed in December 2010, but the Respondents failed to report the change in the employment prior to filing the application. MENTOR was concerned about the financial stability of the household due to additional residents in the home and the reduction in income related to the loss of Mr. Williams' employment. An applicant for re-licensure of a foster home is required to submit financial information sufficient to establish that the applicant has the resources required to provide a stable household and meet basic expenses. The financial information initially submitted by the Respondents with the application for re-licensure was incomplete and did not appear to be an accurate reflection of household expenses. Attempts by MENTOR to obtain additional information were resisted by Ms. Williams. MENTOR eventually determined that, although the household had sufficient income to support their own expenses, placement of a foster child into the Respondents' home would cause a financial hardship for the family. Foster parents are permitted, with approval of the supervising agency, to add payments received to board a foster child to their income calculation, but the Respondents have not obtained such approval. By the time of the hearing, the Williams' adult daughter and her children no longer resided in the home, but Mr. Williams remained unemployed and was selling scrap metal to obtain income. At the hearing, he testified that his scrap metal income had been declining as more unemployed people began to collect and resell scrap. In September 2011, MENTOR completed the re-licensing study, a 24-page document that outlines the history of the foster home, including abuse reports and licensing deficiencies, and the efforts of the licensee to correct such issues. Rule 65C-13.028(3)(i)2. requires that the re-licensing study include documentation related to the level of cooperation by the licensee with the case plans developed for the child placed in the foster home. The re-licensing study documented MENTOR's concerns about the physical safety of children residing in the home and the Respondents' willingness and ability to provide appropriate support to therapeutic foster children placed in the home. During a significant period in 2011, the Respondents maintained a collection of junk metal and other debris in the yard of the foster home. The junk was apparently being collected by Mr. Williams for sale to scrap dealers. Jodi Koch, a MENTOR therapist who was assigned to work with the children in the Respondents' home, testified at the hearing about her observations of conditions in the home and about her interactions with the Respondents. In November 2010, Ms. Koch observed a child begin to play with a rusty machete that the child discovered in the Respondents' yard, and she so advised Ms. Williams, who expressed her displeasure that Ms. Koch had exceeded her authority as a therapist. Ms. Koch reported her observation to MENTOR personnel. MENTOR officials, including the program director and re-licensing coordinator, discussed the unsafe conditions of the property with the Respondents. Suggestions that the Respondents relocate the debris or otherwise prevent access by children to the debris were initially ignored by the Respondents. On May 2, 2011, MENTOR issued a Written Notice of Violation (Notice) to the Respondents, documenting the hazardous conditions of the property. The Notice was hand-delivered on May 5, 2011, at which time the Respondents refused to read or sign the paper. On May 6, 2011, the Lee County Code Enforcement Authority issued a nuisance citation against the Respondents for the accumulation of junk and debris on their property. The violation was cured on May 13, 2011, but, on June 1, 2011, the Lee County Code Enforcement Authority issued a second nuisance citation for the same violation. That violation was not resolved until November 2011, after the Lee County Code Enforcement Authority had prosecuted the violation through a hearing, and more than a year after Ms. Koch observed the child with the machete. At the hearing, Ms. Williams asserted that Ms. Koch was a therapist and that she had exceeded her authority by reporting the observations of the property to the MENTOR officials, essentially the same position Ms. Williams asserted in 2011 when Ms. Koch reported the situation to MENTOR. The MENTOR re-licensing study also documented the failure of the Respondents to cooperate in therapeutic plans developed for the children placed in the home and to supervise the children properly. Ms. Williams often refused to cooperate with the therapeutic plans and goals Ms. Koch developed for the children in the Respondents' foster home. Ms. Williams apparently concluded that she was better able to address the needs of a therapeutic foster child than was Ms. Koch, but the evidence failed to support such a conclusion. Ms. Williams refused to implement standard behavioral therapies suggested by Ms. Koch and opined that they were a "waste of her time." Ms. Williams refused to allow one foster child to have toys purchased for the child by Ms. Koch. Ms. Williams claimed that the child would have destroyed the toys, but Ms. Koch testified they had been purchased to allow the child to have her own possessions for the first time in the child's life and to develop a sense of responsibility. The Respondents routinely put children to bed at an early hour as a means of discipline and refused to comply with Ms. Koch's direction to develop other disciplinary practices. In one discussion with Ms. Koch at the home, Ms. Williams discussed the circumstances of one foster child in the presence of another foster child, violating the confidentiality of the children. The Respondents failed to contact MENTOR staff to address behavioral issues exhibited by children placed in the home and instead called upon law enforcement authorities to respond when a child refused to comply with their directions. The Respondents failed to supervise one child placed in their home sufficiently to prevent the child from accessing pay- per-view pornography on cable television, resulting in a charge in excess of $700 on one bill. It was clear, based on Ms. Williams' testimony and demeanor at the hearing, that Ms. Williams disliked Ms. Koch. Much of Ms. Williams' presentation of evidence during the February 17 portion of the hearing was directed towards discrediting MENTOR and Ms. Koch. After completing the re-licensing study, MENTOR forwarded the application and study to the Department, which received the materials on October 5, 2011. Notwithstanding the continuing problems between MENTOR and the Respondents, MENTOR recommended in the study that the Respondents' home be conditionally re-licensed. The conditions, essentially intended to increase the possibility that the Department would approve the application for re-licensure, were as follows: Reduction in the licensed capacity from two therapeutic individuals to one therapeutic individual. Unannounced visits to monitor the home in terms of food content, refrigerator temperature, client supervision and safety concerns. Continuing monitoring of the foster parents ability to work in conjunction with service providers regarding the best interests of the child. Monitoring to ensure that the living situation of the additional four residents was resolved within six months. Ms. Williams was dissatisfied with the results of the study, disagreed with the proposed conditions, and refused to accept them. While MENTOR (as the supervising agency) was responsible for the evaluation of the application, the Department has the responsibility for the making the final determination regarding licensure or re-licensure of a foster home. The Department considered the MENTOR recommendation when making the licensing decision. The primary focus of the Department's decision was whether the Respondents could provide an appropriate and safe environment for a therapeutic foster placement. The Department has no financial interest in the decision and had no direct contact with the Respondents. As the regional licensing manager for the Department, Kristine Emden was tasked with the responsibility of reviewing the application and materials. Based on her review, Ms. Emden determined that the application should be denied. Ms. Emden based her decision on the Respondents' lack of cooperation with therapeutic programs developed for the children in their care, their failure to supervise children adequately or to maintain confidentiality regarding the children, and their lack of cooperation with the MENTOR personnel who attempted to resolve the identified deficiencies. Additionally, Ms. Emden considered the Respondents' response to issues related to the hazardous conditions of the premises, the lack of financial resources to support a therapeutic foster placement in the home, and the rejection of conditions proposed by MENTOR in the study. Ms. Emden was unable to identify any remedial measures that would alter the denial of the application for re-licensure. The Respondents failed to offer credible evidence to establish that the Department's denial of the application was incorrect or that the application should otherwise be approved.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Families enter a final order denying the license application filed by the Respondents at issue in this proceeding. DONE AND ENTERED this 19th day of July, 2012, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 19th day of July, 2012.
Findings Of Fact Respondents have cared for foster children for some twenty years. In November or December of 1975, they began with Christian Youth Care, Inc. (CYC), a foster home in Zephyrhills founded under the auspices of the First Baptist Church of Zephyrhills. Since then small groups of adolescent girls have lived with respondents and their teenage daughter, Dawn. In all, some 80 children have lived at CYC since respondents have had charge of the home. In July of 1977, petitioner placed June Holmes, who is deaf and dumb, with respondents. After June had been with the Houghs for two weeks or so, Lillian Parsons, a social worker in petitioner's employ, told Mrs. Hough that June should be wearing a hearing aid. June did not want to wear a hearing aid. She was also disappointed that Mrs. Hough would not take her to Daytona Beach; she became very upset, wielded a straightened safety pen and started knocking things off bureaus. When Mr. Hough served as a medical technician in the armed forces, unruly patients were sometimes wrapped in blankets. Perhaps remembering this experience, he enlisted Mrs. Hough in wrestling June to the floor, wrapping her in a blanket and securing the blanket with three belts. In the process, Mr. Hough said to June, "See how mad you can get." These events caused concern among the other children living in the home, who gathered to watch and, at respondents' suggestion, to say prayers. Mrs. Hough told June that she loved her. After June had lain bound in this fashion for 45 minutes, respondents released her. The following day Mrs. Hough called Mrs. Parsons to report the incident and to ask that June be placed in another home. Mrs. Parsons expressed no disapproval of respondents' method of restraining June nor did she tell them not to do it again. June remained with respondents until she left for boarding school in St. Augustine. When June returned to the Houghs from school on Easter vacation 1978, she wanted a new pair of shoes that cost $24.95. Respondents bought her a different pair instead. Easter morning June wanted to wear her old shoes, not her new shoes. This caused an argument. Mrs. Hough stayed home with June while Mr. Hough took the others to church. When Mrs. Hough began packing June's clothes into a suitcase, June was "worried that [respondents] would move [her] out." Deposition of June Holmes, p. 5. She walked outside and sat under a tree near the road. Mrs. Hough telephoned her husband and summoned him home from church. With the help of a deputy sheriff brandishing handcuffs, respondents coaxed June into their van and drove her up the driveway to their home. At first she refused to leave the van, so respondents went inside without her. When June eventually went inside, there was another confrontation. Mr. Hough wrestled June to the floor and sent Mrs. Hough for a blanket. After respondents wrapped June in the blanket and secured it with belts, Mr. Hough set off to retrieve the children he had left at church. After Mr. Hough returned with the other children, respondents unwrapped June and there was an Easter egg hunt. The next day Mrs. Hough called petitioner's offices in New Port Richey, then drove June to New Port Richey and left her there, because she wanted no more to do with her. When Mrs. Parsons learned that respondents had wrapped June in a blanket a second time, she asked to be relieved of responsibility for June. Eventually David J. Schultz, at the time a child welfare social worker in petitioner's employ, assumed responsibility for June; and June was again placed with respondents. Mr. and Mrs. Hough frequently communicated with guidance counselors and teachers at the schools children in their care attended. They made six visits to talk about Evelyn Ciacelli's progress with Ricky Rowell, guidance counselor at Woodland Elementary School in Zephryhills, and spoke to him on the telephone about Evelyn on several other occasions. Disappointed in Evelyn's progress with her homework one night, Mr. Hough picked her up and shook her. On another occasion, Evelyn and her roommate were wrestling in their room after they had been sent to bed. Mr. Hough heard them from the kitchen, walked into their bedroom with a spatula in his hand, and gave Evelyn, who was wearing a bathrobe over her nightgown, a swat on the rear with the spatula. On November 20, 1978, David J. Schultz left Petitioner's employ. He subsequently went to work for a corporation controlled by respondents and began living in their home. He lived there on December 13, 1978. On December 13, 1978, Bonnie Blair McKenzie, then employed by petitioner as a community youth leader, picked up Cindy Spickelmier at a shelter home in Dade City and drove her to respondents' home. Cindy, a 14 year old, was at the shelter home after having run away from another foster home, the Newmans'. She had lived with respondents previously and David Schultz also knew her. Shortly after Cindy's arrival, David Schultz was talking to her in the Houghs' living room, where she was sitting on a couch, crying. Also present were Mr. Hough, Ms. McKenzie, Nancy Newman, the foster mother who had previously had custody of Cindy, and Ed Springer, then the social worker in petitioner's employ responsible for Cindy's placement. Angry because Cindy was ignoring him, David Schultz grabbed the hair of her head, jerked her up into a standing position, had her bend over and lean against a desk for support, and struck her buttocks with a wooden paddle an inch thick. He administered the first blow with such force that Ms. Newman was frightened and Ms. McKenzie was "horrified and devastated." (T.52). Cindy fell to her knees, hysterical. Less forcefully, David Schultz struck her buttocks a second time. At the hearing Mr. Hough testified that: after Dave gave her the swats she sat back down and she was a new child. We were able to communicate with her and we thought we were really making good progress and being able to work with the child. That was the purpose of the new program and of course we were trying to set up parameters that would be beneficial to the child. (T.233). Notwithstanding this perceived improvement in Cindy's deportment, Ed Springer gave Cindy another spanking 30 or 45 minutes after David Schultz had finished. In the presence of Mr. and Mrs. Hough, and Mr. Schultz, Ed Springer struck Cindy five times on the buttocks with the same wooden paddle David Schultz had used, as punishment for running away from the Newmans' house. Later, on the evening of December 13, 1978, Cindy ran away from the Houghs'. She ended up at her mother's house where she spent the night. The next day her mother took her to the Pasco County Sheriff's Department. There Fay Wilbur an investigator for the Sheriff's Department, took photographs of Cindy's badly bruised buttocks. Petitioner's exhibits 3, 4 and 5. On the following day, December 15, 1978, Dr. Lena Ayala, a pediatrician, examined Cindy. She found large "[v]ery tender, painful" (T.55) hematomas covering the whole area of Cindy's buttocks. If she had seen a child in the custody of its natural parents in that condition, Dr. Ayala testified, she would have reported the matter to the child abuse registry. Petitioner discharged Ed Springer because of the beating he had administered to Cindy Spickelmier. Petitioner publishes a manual with a chapter entitled "Foster Family Group Homes for Dependent youth," Petitioner's exhibit No. 8. In part, the manual provides: 8.4.4 Unacceptable disciplinary approaches include: a. Corporal punishment--slapping, kicking, hitting, etc. * * * Humiliation, ridicule, sarcasm, shaming in front of the group or alone. Deprivation of essential needs such as food, sleep, or parental visits. Petitioner's exhibit No. 8, p.9. Although petitioner sometimes furnished foster group home licensees copies of its manuals, petitioner's files do not indicate that either Mr. or Mrs. Hough ever received a copy. Respondents wore unaware of the manual's contents on December 13, 1978; and David Schultz was also unaware of any policy against corporal punishment of foster group home children. Lorraine Cash, a foster mother in Pasco County, never spanked any foster child in her care over the age of eleven years. On the other hand, Henry Arnett, another foster parent in Pasco County, used corporal punishment in disciplining teen aged foster boys. He and his wife, Doris, were named foster parents of the year in 1978. On December 14, 1978, Joanne Wall telephoned respondents on behalf of petitioner and told Mr. Hough that David Schultz should be barred from their premises. When Mr. Hough protested that David Schultz lived on the premises, Ms. Wall asked Mr. Hough to keep David Schultz from working with the girls, which Mr. Hough agreed to do. On December 18, 1978, respondents submitted an application to petitioner for a child care center license, an application on which they had begun work considerably before December 13, 1978. Discouraged by the pace at which this application was being considered and by what respondents perceived as unfairness on the part of some of petitioner's personnel, Mr. Hough on February 15, 1979, told William Laing, a manager for petitioner, that he wanted all the foster children but two removed by five o'clock the following day, a Friday. Even though the agreement between petitioner and respondents called for two weeks' notice by the foster parents, petitioner's exhibit No. 6, Mr. Hough was unwilling to wait so long. Petitioner arranged to pick up all the foster children in respondents' care on the following day. Some of the children had not been told they would be leaving the Houghs' home. Respondents own improved real estate from which they derive rental income. In addition, CYC, funded by the First Baptist Church of Zephyrhills, paid respondents a salary. Occasionally, Mr. Hough worked outside the home. Pasco County contributed to the costs of caring for foster children. Respondents did not need moneys petitioner paid them on behalf of the children for their own personal purposes.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That, on the next anniversary of the date of respondents' original foster group home license, petitioner discontinue respondents' license for a period of one year. DONE and ENTERED this 19th day of June, 1979, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Barbara McPherson, Esquire Post Office Box 5046 Clearwater, Florida 33518 Robert L. Williams, Esquire Post Office Box 443 Dade City, Florida 33525
The Issue Whether Petitioner’s request for a foster home license should be denied due to her alleged failure to comply with foster care licensing requirements.
Findings Of Fact Since 2006, Petitioner has held a foster care license, issued by the Department through Citrus, which is a child placing agency ("CPA"). Since becoming a foster parent, there have never been any concerns raised as to the care Petitioner provided to the foster children. Every year, Petitioner entered into a Bilateral Service Agreement with Citrus. The Agreement identifies the responsibilities of both the foster parents and Citrus on behalf of the children served in the foster care program. Under the heading “Foster Parent Responsibilities to the CPA” the Bilateral Service Agreement provides that the foster parent is required: To notify the CPA immediately of a potential change in address, living arrangements, marital status, family composition (who is in the home), employment, significant health changes or any other condition that may affect the child’s well-being. To notify the CPA promptly of all contacts the family or any member of the home has with police or any law enforcement agencies. In the summer of 2010, Citrus sent a letter to all foster parents reminding them that all family members or visitors who frequent the home on a daily basis, or sleep overnight, or have constant contact with the foster children, must have background checks completed. In the fall of 2010, for the annual review for the upcoming year of 2011, Citrus conducted a home study, which included an announced visit and inspection of the home. The Citrus consultant who conducted the home study recorded that Warren Clark (Clark), Petitioner’s son, was living in the home. Petitioner’s daughter was listed as a family member that did not live in the home and was not a frequent visitor. She conducted a background screening on Clark, and discovered that Clark had been arrested twice for battery/aggravated assault charges in May, 2010. If Petitioner’s daughter had been listed as a household member or frequent visitor, the consultant would have conducted background screening on the daughter as well. During her announced visit, the consultant saw Clark’s room, and only noticed male belongings. She did not see any kind of female items, such as jewelry, makeup, or female clothing. Petitioner never reported Clark’s arrests to Citrus. At the hearing, she testified that she was unaware of her son’s arrests, and was only made aware of the arrests when the Citrus consultant told her about them. Her son testified that he had never told his mother about the arrests because he was embarrassed. The undersigned does not find this testimony credible, as it is self-serving in nature and is not plausible, given that Petitioner’s son lived with Petitioner and was arrested twice in one month. It was ultimately Petitioner’s duty to be informed of any involvement between a household member and law enforcement, and to promptly notify the Department. On January 27, 2011, a foster care licensing staffing was held. Petitioner agreed to have her son move out of her home, due to the nature of the arrests. To memorialize the agreement reached during the meeting, Petitioner signed a statement indicating that she would have her son move out of the foster home, and that she understood that if her daughter was going to be a frequent visitor, her daughter needed to be fingerprinted. The statement also indicated that any violation of this agreement might result in revocation of her foster home license. This statement was dated February 22, 2011. During the exit interviews of two of Petitioner’s foster care children, the children reported that Petitioner’s daughter lived at the foster home. Citrus and the Department conducted an unannounced home visit on March 10, 2011. Dulce Pupo, a Citrus Foster Care Licensing Supervisor, and Ada Gonzalez, a Department Licensing Specialist, conducted the visit. Present at the home were two foster children, Petitioner, Petitioner’s daughter, and a tutor for one of the foster children. One foster child, who was approximately 12 years old, told Ms. Gonzalez that Petitioner’s daughter lived in the home, and pointed out her bedroom. When Ms. Gonzalez approached the room that had been indicated, Petitioner asked her not to enter that room, because it was messy. Ms. Gonzalez entered the bedroom, and found items that belonged to a woman; she photographed women’s jewelry, skin products, perfumes, women’s clothing, women’s shoes, and a curling iron that she saw in the room. Petitioner told Ms. Gonzalez that the items were her daughter’s items, but that her daughter did not live at the foster home. On March 11, 2011, a staffing was held. Petitioner attended and admitted that her daughter was living at her home. At the hearing, Petitioner explained that during this staffing, she was very upset, and misspoke when she stated that her daughter lived in her foster home. She, did, however, admit that her daughter was a frequent visitor, and that she should have reported that fact to Citrus. On May 9, 2011, the renewal of Petitioner’s foster care license was denied by the Department.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Children and Families enter a final order finding that Petitioner violated section 409.175(9), Florida Statutes, and deny Petitioner’s request to renew her foster home license. DONE AND ENTERED this 27th day of October, 2011, in Tallahassee, Leon County, Florida. S JESSICA E. VARN 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 27th day of October, 2011.
The Issue The issue in this case is whether Petitioner's foster home license should be renewed.
Findings Of Fact From August 24, 2004, and throughout the period material to this proceeding, Petitioner Jannifer Thompson ("Thompson") and her husband, Dalkeith, held a license that authorized them to operate a family foster home under the supervision——and within the regulatory jurisdiction——of Respondent Department of Children and Family Services ("DCF"). Like all licensed foster parents, Thompson and her husband had entered into a written contract with DCF known as the "Bilateral Service Agreement" ("Agreement"), most recently as of April 30, 2006. This Agreement, by its terms, "reflect[ed] standards of care that are current requirements in Florida [law]." On September 14, 2006, a counselor named Elboney Ojobor, who was employed by a private agency to whom DCF had delegated various responsibilities pursuant to contract, made a routine quarterly visit to Thompson's home. Ms. Ojobor was covering for a colleague (Rondalyn Woulard) who was on maternity leave; she had not met Thompson previously. While interviewing Thompson, Ms. Ojobor learned that Thompson was the only adult living in the home at the time, and that Thompson was getting divorced from Dalkeith. Ms. Ojobor understood this to mean that Mr. Thompson had moved out of the home permanently. In fact, Mr. Thompson was away from the home then not because he had moved to another residence ahead of a divorce, but because his job with a shipping company had required him to be out of town for an extended period. Nevertheless, the couple was estranged; Mr. Thompson would leave the marital home for good in the middle of October 2006. Ms. Ojobor's visit was not the first occasion on which Thompson had notified DCF (through its private-sector agent) that her marriage to Dalkeith was in trouble. During an earlier home visit (probably around June 2006, during the quarter immediately preceding Ms. Ojobor's visit in September), Thompson had told her regular counselor, Ms. Woulard, that she might divorce Dalkeith. Ms. Ojobor was not aware of this previous communication, however, and thus she reported the apparent change in circumstances (Mr. Thompson's absence) to her supervisor. The upshot was that on September 15, 2006, Ms. Ojobor called Thompson to inform her that, if she were to continue operating the foster home as a single parent, she would need to obtain a new license. As it happened, whatever steps Thompson took thereafter to become re-licensed came quickly to naught because, in early October 2006, DCF received an allegation that children in Ms. Thompson's home were being physically abused. Having brought up the abuse report, the undersigned believes it necessary here to interrupt the narrative flow of the findings, to call attention to some important points. The most serious charge against Thompson in this case is that she used "excessive" corporal punishment on foster children in her care. The accusation is not that Thompson was found by some other agency or investigator to have abused a foster child or children. The distinction is critical. Because DCF has alleged that Thompson used corporal punishment excessively, it is not sufficient (or even necessary) for DCF to prove that someone else, after investigating allegations of abuse, concluded that Thompson had inflicted some sort of physical injury on a foster child. Rather, DCF must prove that Thompson, in fact, actually used corporal punishment, which is a different fact. Indeed, that someone else found Thompson guilty of physical abuse is not especially probative, in this de novo proceeding, of the salient factual dispute, namely whether Thompson used corporal punishment on foster children.2 Against this backdrop, the undersigned finds that, on October 9, 2006, DCF referred a report of abuse concerning Thompson to the local Child Protective Team ("CPT"). DCF requested that the CPT examine the allegedly abused foster child and make an assessment of the situation. One member of the CPT who took part in this particular assessment was Karl Dorelien. Though not a medical provider, Mr. Dorelien was present for the medical examination of the child in question, whose name is T. P. The examination was performed by an advanced registered nurse practitioner ("ARNP"). Mr. Dorelien testified at hearing. The ARNP did not. At the time of the examination, Mr. Dorelien saw some bruising on T. P.'s forearm. T. P. told Mr. Dorelien and the ARNP that she had been struck by a belt. The CPT did not independently investigate T. P.'s statement. Mr. Dorelien and the ARNP accepted at face value T. P.'s statement about the cause of her injury. The ARNP found that T. P.'s wound was "not accidental." (Mr. Dorelien specifically denied having the expertise to ascertain whether a bruise was caused accidentally or intentionally. There is, it should be added, no persuasive evidence that the ARNP possesses such expertise, either.) Based on the medical examination, the CPT concluded that Thompson had struck T. P. with a belt. (It is not clear how the CPT determined that Thompson——as opposed to someone else——caused T. P.'s injury.3) The evidence shows, in short, that the CPT found Thompson had caused bodily injury to T. P., a foster child then in her care, whom (the CPT determined) Thompson had hit with a belt. There is, however, no persuasive evidence upon which the undersigned independently can find that Thompson actually hit T. P. with a belt (or otherwise). How can this be? First, no one claiming to have personal knowledge of the matter testified at hearing that Thompson had struck T. P. with a belt. (T. P. was not called as a witness.) Thompson denied having perpetrated the alleged misdeed. Second, although there is competent and credible evidence (Mr. Dorelien's testimony) that T. P.'s forearm was bruised, the only evidence as to the cause of this injury was hearsay: (1) T. P.'s statements to the CPT revealing that she had been struck with a belt and (2) the ARNP's opinion (which Mr. Dorelien repeated at hearing) that the wound was not accidental. This uncorroborated hearsay is not a legally sufficient basis for any finding of fact, and even if it were, the undersigned, as the trier of fact, would give it too little weight to support a finding.4 Finally, even if there were sufficient evidence in the record to support a finding that T. P. had been struck with a belt (and there isn't), there yet would be nothing but Mr. Dorelien's ambiguous testimony concerning the substance of T. P.'s out-of-court statement, coupled with inference or speculation (based on uncorroborated hearsay), tending to establish that Thompson did the striking. Again, such "proof" is neither legally sufficient nor, in any event, logically persuasive enough to support a finding that Thompson was at fault for the child's injury. DCF alleges that, in addition to striking T. P. with a belt (which allegation was not proved, as just found), Thompson also spanked J. D. F. and his brother, O. F. Both of these boys, respectively aged 8 and 7 years at the time of hearing, testified against their former foster mother. Each claimed that Thompson had spanked him with a belt. As witnesses, however, the boys did not inspire confidence in the truth of their accounts. Each gave testimony that was confusing, sometimes inconsistent, and lacking in precision. Neither one seemed distinctly to remember the important events at issue, much less any of the details surrounding them, causing the undersigned to wonder, at times, whether the boys were independently recalling the underlying events or, rather, testifying from the memory of what someone might have told them was alleged to have occurred. Doubtless many of these boys' shortcomings as witnesses stemmed from their youth and immaturity. Even so, all witnesses, regardless of age and experience, must be measured according to the same standards of credibility; the bar can be neither lowered nor raised to conform to a particular witness's capacity for giving testimony, for doing so would put a thumb on the scales of justice. At bottom, the accounts of J. D. F. and O. F., though not inherently incredible, nevertheless lacked sufficient indicia of reliability to produce in the undersigned's mind a firm belief or conviction that Thompson had spanked them with a belt. The undersigned hesitates to say more than that such is a possibility. Against the shaky testimonies of the boys was offered the decidedly stronger testimony of their sister, Sancia Jeantil, who swore that while she was living in Thompson's home (which admittedly was not at all times her brothers were there), she never saw Thompson spank either J. D. F. or O. F. She further testified that neither of her siblings had ever complained to her about being beaten. The undersigned has accorded considerable weight to Ms. Jeantil's testimony, because it seems unlikely that she would prevaricate to protect Thompson at her brothers' expense. Although Ms. Jeantil was not always present in the home, her testimony, which the undersigned accepts, is persuasive proof of the pertinent negative proposition, i.e. that Thompson did not use corporal punishment on the boys. Thompson herself testified at hearing and denied having used corporal punishment on J. D. F., O. F., or any other foster child. Mr. Thompson, too, testified that corporal punishment had not been used on any of the foster children in their home. Thompson's own child, J. T., said the same. None of these witnesses conclusively proved the negative of DCF's allegation regarding corporal punishment, but then again it was not Thompson's burden to disprove the charge. What these witnesses did do, effectively, was establish a credible, if simple, theory of innocence: Thompson never beat the foster children in her care. The undersigned has determined, as a matter of ultimate fact, that the evidence as a whole fails to produce in the mind of the trier of fact a firm belief or conviction, without hesitancy, that Thompson used corporal punishment on any of the foster children under her care. Aside from the allegations regarding corporal punishment, DCF has charged Thompson with the lesser offense of failing immediately to notify DCF that her husband had moved out of the home. The evidence shows, however, that Thompson satisfied her duty to notify DCF concerning changes that might affect the life and circumstances of the foster children residing in her home. To recap, briefly, the material facts, Thompson informed DCF's agent, Ms. Woulard, of the possibility that she and Dalkeith might divorce; thus, DCF was on actual notice of a potential change in Thompson's marital status. Thompson likely gave DCF this advance warning in June 2006; in any case, she spoke up long before Dalkeith established a new residence and before the divorce proceeding commenced. There is no clear proof that the couple's situation had changed materially as of September 14, 2006, when Mr. Ojobor visited the home. Without question, Mr. Thompson was away at that time——but he worked for a shipping company and thus extended absences were part of his routine. Having all the evidence of record in view, the undersigned is not convinced that Mr. Thompson had "moved out" of the home as of mid-September 2006 in the sense of having permanently relocated from that residence, which is what DCF maintains. While there is some evidence that such was the case, there is also persuasive evidence that Mr. Thompson did not leave the home for good until October 2006——evidence sufficient to preclude the undersigned from finding, without hesitancy, that DCF's allegation is accurate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that DCF enter a final order approving the renewal of Thompson's foster home license. DONE AND ENTERED this 15th day of November, 2007, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 November, 2007.
The Issue The issue for determination at final hearing is whether Respondent's foster care license should be revoked.
Findings Of Fact On July 1, 1995, Mildred Sands (Respondent) was issued a provisional foster home license by the Department of Health and Rehabilitative Services (Petitioner), with an effective period of July 1, 1995 - June 30, 1996. Her license number is 0795-06-3. A provisional license is issued when all requirements for a license are not met and the licensee is given a specific time period to comply with the remaining requirements. Due to a court action involving a minor child, J. F., who was born on May 7, 1983, the court placed J. F. with Respondent. In order for the minor child to live with Respondent, Petitioner issued Respondent a provisional license. Prior to the placement, Respondent knew J. F.'s mother for several years on a personal basis. The mother and her children were at one time living with Respondent. Respondent is J. F.'s godmother and has interacted with her since J. F.'s birth. Prior to licensing, on June 12, 1995, Respondent signed a "Bilateral Service Agreement" (Bilateral Agreement) with Petitioner, agreeing to abide by or with several conditions. The Bilateral Agreement provides in pertinent part: 2. We are fully and directly responsible to the Department for the care of the child. * * * 8. We will accept dependent children into our home for care only from the Department and will make no plans for boarding other children or adults. We will notify the Department if any adult relative or family members returns to live in the home. * * * 10. We will notify the Department immediately of any change in our address, employment, living arrangements, arrest record, health status or family composition, as well as any special needs for the child (i.e. health, school problems, emotional problems). * * * 16. We will comply with all requirements for a licensed foster home as prescribed by the Department. * * * 18. We understand that any breach of the Agreement may result in the immediate removal of the child(ren) and revocation of the license. Respondent signed a "Discipline Policy Agreement" (Discipline Agreement) on July 19, 1993, when she was initially licensed as a foster care provider and on June 12, 1995, during her re-licensure process. The Discipline Agreement signed on July 19, 1993, provides in pertinent part: The following disciplinary practices are FORBIDDEN in caring for your foster child. Failure to comply may result in an investigation and possible closure of your home. * * * Hitting a child with an object. Slapping or spanking a child, or ANY OTHER physical discipline. The Discipline Agreement signed on June 12, 1995, provides in pertinent part: [T]he following disciplinary practices are FORBIDDEN on our children. FAILURE OF THE FOSTER PARENT(S)... TO COMPLY MAY RESULT IN THE REMOVAL OF THE CHILD(REN) FOR AN INVESTIGATION AND RESULT IN THE CLOSURE OF YOUR HOME. * * * Hitting a child with ANY object. Slapping, smacking, whipping, washing mouth out with soap, or ANY other form of physical discipline. On February 14, 1995, Petitioner waived placement requirements in order for J. F.'s siblings to be placed with Respondent to keep the family unit together. J. F.'s siblings had been living with her grandmother who had become ill and was unable to care for the children. On September 1, 1995, Petitioner received a report of alleged child abuse allegedly committed by Respondent against J. F., who was 12 years old, at Respondent's foster home. Respondent was allegedly disciplining J. F. Within a short span of time that same day, Petitioner began an investigation. The minor child, J. F., had raised bruises, swelling, abrasions, and redness on the lower part of her legs. Also, J. F. had a small scratch on one of her legs and a scratch on her left arm. The injuries were purportedly inflicted by a ruler. No expert opinion was presented to confirm that the injuries were consistent with such an instrument, and no attempt was made to obtain the instrument used to commit the alleged abuse. Petitioner removed all the children from Respondent's home. Petitioner notified Respondent that it was revoking her foster home license due to the alleged excessive corporal punishment. The minor child, J. F., did not testify at the hearing. 1/ Respondent did not inflict the injuries to the minor child, J. F. 2/ Respondent did not use corporal punishment of any kind on the minor child, J. F. Respondent did not violate the Discipline Agreement. Respondent was responsible for the supervision and care of the minor child, J. F. Respondent was not aware of J. F.'s injuries and was, therefore, unable to notify Petitioner of the injuries or to obtain medical attention for J. F.'s injuries. Respondent had allowed the children's adult sibling, who was 19 years old, to live with her and the children. Respondent failed to notify Petitioner that the adult sister would be and was living in her home. In failing to notify Petitioner, Respondent violated the Bilateral Agreement, paragraph numbered 8.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the foster home license of Mildred Sands not be revoked. DONE AND ENTERED this 1st day of August 1996, in Tallahassee, Leon County, Florida. ERROL H. POWELL, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of August, 1996.
The Issue The issue in this case is whether Respondent should deny Petitioners' application for a license to provide foster home care for dependent children pursuant to Section 409.175, Florida Statutes (1999). (All statutory references are to Florida Statutes (1999) unless otherwise stated.)
Findings Of Fact Respondent is the state agency responsible for licensing and regulating foster care in the state. Petitioners were foster care parents until October 5, 2000, when Petitioners voluntarily surrendered their foster care license for medical reasons. Prior to October 5, 2000, Mrs. Williams suffered from high blood pressure and dizziness. She was physically unable to care for foster children and asked that Respondent remove all foster children from her home. Before her medical problems began, Mrs. Williams complained to Respondent that she could not provide foster care for children with behavior problems. Mrs. Williams asked Respondent to remove certain children from her home because they presented behavioral problems with which she could not cope. In March of 2001, Petitioners applied for a new license to provide foster care. Petitioners did not provide any medical evidence, during the hearing or the application process, that Mrs. Williams has recovered from her medical problems. Her medical problems have a long medical history and come and go each year. Mrs. Williams is 62 years old. On the family profile sheet filed with Respondent, Mrs. Williams lists her occupation as "disabled."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order denying Petitioners' application for a license to provide foster care to dependent children. DONE AND ENTERED this 31st day of October, 2001, in Tallahassee, Leon County, Florida. DANIEL MANRY 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 31st day of October, 2001. COPIES FURNISHED: Virginia A. Daire, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Wilbert and Estella Williams 412 Pine Avenue Sanford, Florida 32771 Craig A. McCarthy, Esquire Department of Children and Family Services, District 7 400 West Robinson Street Orlando, Florida 32801
The Issue Whether Petitioner’s application for licensure as a family foster home should be granted.
Findings Of Fact Sometime around 2004, Petitioner held a license as a foster home in Florida. During the licensure period, Petitioner fostered X. B. and T. T. in her home where she resided with her three biological children. X. B. stayed in Petitioner's home for approximately three weeks to a month. Throughout X. B.'s stay, Petitioner failed to provide breakfast to X. B. prior to school. Petitioner's failure necessitated the case manager providing such breakfast to X. B. when she drove X. B. to school. Additionally, on several occasions the case manager saw evidence of roach infestation in the home. In particular, upon X. B.'s return to Petitioner's home from visiting X. B.'s siblings, the case manager found him in a roach-infested environment, with no running water in the home since the service had been turned off by the service provider for non-payment of the bill. The toilet bowl was filled with feces and urine and had feces on the lid. It was unsanitary and unusable. X. B. asked the case manager to take him to the local gas station so that X. B. could use the bathroom. Soon after, X. B. was removed from Petitioner's care due to unsanitary conditions and/or unsafe conditions in Petitioner's home. T. T. was a one-year-old child who was also placed in Petitioner's foster home during her earlier licensure period. Again, the case manager saw evidence of roach infestation in Petitioner's home. At first, the case manager only saw a couple of roaches in the home. However, the roach problem progressively grew to the point that during one of the case manager's visits the wall behind the baby's crib looked like it was moving because there were so many roaches on it. Soon after, the case manager removed T. T. to another foster home. When they arrived at the new home, a roach crawled out of T. T.'s diaper bag. Upon inspection of the bag, the case manager discovered many dead roaches in the bag. More importantly, half of a dead roach was discovered in the baby bottle of milk that T. T. was drinking while being moved to T. T.'s new foster home. Clearly, the condition of Petitioner's foster home was neither sanitary nor safe. Petitioner's care of both these children resulted in verified abuse reports in Florida's abuse registry for conditions hazardous to the health of children. Petitioner's initial foster home license either lapsed or was not renewed. Since 2004, Petitioner has not been financially stable. In fact, she often asked her neighbors for money to pay her utility bills or buy gas for her car. Additionally, Petitioner lost different homes to foreclosure in 2006 and 2007. Since 2009, she and her children have moved to a different home an average of once a year. To her credit, Petitioner attended college and obtained her doctorate in Theology and Philosophy. However, her history has not demonstrated either household stability or financial ability in her life. In 2011, Petitioner applied for licensure as a family foster home. She successfully completed the Model Approach to Partnership in Parenting (MAPP) training program on September 20, 2011. In June 2012, Trauma Therapist for Children’s Homes Society, Katie Klutz, began the required home study of Petitioner. During the home study, Petitioner and her three biological children were living in a three bedroom home. Petitioner moved her bedroom furniture into the living room in order to make room for potential foster children. The bedroom space was separated from the living room by "curtains" that afforded no significant privacy for those living in the home. Clearly, Petitioner's home did not provide sufficient space to foster an additional child in the home. Petitioner has since moved to a larger home that was not the subject of the home study for this license. However, given Petitioner's past household instability, the very limited evidence regarding this new home does not support a finding that Petitioner's current home offers sufficient space to provide for the privacy and well-being of a foster child. More importantly, Petitioner has not worked since having an accident on the job in May 2010. A neighbor also provided a written reference in which she praised Petitioner’s spirit but stated that it is “a real struggle” for Petitioner to maintain her home and that “she will definitely need additional support in this area.” Notably, it was unclear how Petitioner was currently supporting her household. She has no employment. Petitioner claimed that she received money from a church or charitable organization that she founded. However, there was no evidence that such limited income, if any, was sufficient to support her family and/or provide financially stable conditions to Petitioner and her family. Moreover, Petitioner's bank records reflect that in June 2012, she made deposits of $167.53 and debited the account $266.07. Her ending balance in June was $18.81. At hearing, other than child support and food stamps, Petitioner offered no evidence of additional finances or income that is attributable to her. Given these facts, Petitioner has failed to demonstrate home safety, household stability or financial ability sufficient to entitle her to be licensed as a foster home. Therefore, Petitioner's application for such licensure should be denied.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner's application for licensure as a foster home should be denied. DONE AND ENTERED this 28th day of March, 2013, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER 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 28th day of March, 2013. COPIES FURNISHED: Paul A. Rowell, Esquire Department of Children and Families 2383 Phillips Road Tallahassee, Florida 32308 Shakinah Glory 4768 Woodville Highway Apartment 428 Tallahassee, Florida 32305 M. Burnette Coats, Esquire Department of Children and Families 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399 Gregory Venz, Agency Clerk Department of Children and Families Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Marion Drew Parker, General Counsel Department of Children and Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 David Wilkins, Secretary Department of Children and Families Building 1, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Are the Respondents entitled to renew their license to operate a family foster home?
Findings Of Fact Respondents held Family Foster Home License No. 059520, effective from May 18, 1995 through May 18, 1996. The license was not renewed based upon allegations in this case. At times relevant, Respondents provided foster care to F.J., who was thirteen when the hearing was conducted, to V.K. who was eight when the hearing was conducted, and to F.J. and V.K.'s two younger brothers. The children lived with the Respondents for approximately six and one-half years. Although F.J. is thirteen years old, she is a developmentally disabled child with an I.Q. in the range of 46 to 58. Her mental and developmental age is less than eleven years. On May 30, 1995 an investigation was begun concerning alleged sexual abuse of F.J. by James Comer. This led to the removal of the children from Respondents' home. On May 30, 1995 F.J. described James Comer's sexual misconduct to Brenda Mims, a human services counsellor for Petitioner. At that time F.J. told Mims that James Comer had touched her breast and felt on her. When F.J. described the contact which James Comer had with her, F.J. put her hands on her breast to demonstrate. She did not describe the point in time when this happened. On that date Mims interviewed Mary Comer concerning the allegations by F.J.. Mary Comer confirmed that F.J. had told Mary Comer that James Comer was "bothering her" and F.J. wanted it to stop. Mary Comer indicated that she thought that F.J. was referring to a "tickling incident". Mary Comer told Mims that she had confronted James Comer about the tickling and asked him to stop tickling F.J.. When Mary Comer spoke to Mims, she referred to F.J. coming to her and saying that "Dada" was bothering F.J.. The term "Dada" is the name the children used to refer to James Comer. The children referred to Mary Comer as "Granny". On June 7, 1995 Mims talked to F.J. again. At that time F.J. was concerned that James Comer not be able to find her in her new home. Assurances were given that James Comer could not find her. On this occasion F.J. told Mims that James Comer "would feel on her" and she didn't like it. In this conversation F.J. described fondling James Comer's penis. F.J. stated that James Comer would hit her with his fist sometimes if F.J. wouldn't cooperate with his advances. F.J. described a big roll of money that James Comer would give her if F.J. would cooperate with him. Otherwise James Comer would not give F.J. money. According to Mims, F.J. said that James Comer would give her money if F.J. would "be with him". In the June 7, 1995 discussion F.J. and V.K. told Mims that Mary Comer tried to prohibit James Comer from bothering F.J. and James Comer began to beat Mary Comer. Following such incident, the police were called, but James Comer was not removed from the home. In the June 7, 1995 conversation V.K. told Mims that on one occasion V.K. peeked out the door and saw F.J. lying on James Comer while he was seated in the reclining chair. Deborah Gipple is a licensed mental health counselor who has experience in counseling child victims of sexual abuse or other trauma. Gipple began counseling F.J. in November, 1995 and continued the counseling to the date of hearing. Gipple observed in F.J. conduct which is consistent with a child who has been sexually abused. This included F.J. exposing herself, rubbing against other children, problems in the classroom and at home concerning the need to follow directions, and a distrust evidenced by sneaking about doing things that were not necessary to avoid detection, such as sneaking about and removing food. F.J. told Gipple that James Comer touched between F.J.'s legs and touched her breast. F.J. further stated that James Comer had her lay on top of him. F.J. told Gipple that sometimes James Comer would come in the night and take F.J. from her bed. In these conversations Gipple observed that F.J. was aware that James Comer's actions were wrong. In these discussions F.J. stated a concern about her sister V.K. and the possibility that James Comer would harm V.K.. V.K. was competent to testify when she testified at hearing. On one occasion when V.K. was in the hallway with her brothers at night she looked in the T.V. room and saw F.J. on top of James Comer while he was seated in a reclining chair. V.K. described that F.J. was moving her body and doing "nasty stuff". On another occasion V.K. was outside the house and observed F.J. and James Comer in the T.V. room. As V.K. describes it, F.J. was playing with James Comer while he was sitting down. F.J. was on James Comer's lap. V.K. did not give exact details concerning what F.J. and James Comer were doing. Concerning these two instances, V.K. recalls that Mary Comer was not home on the first occasion. V.K. has no recollection concerning Mary Comer's whereabouts on the second occasion. V.K. had been subjected to corporal punishment by James Comer when living in his home. She also observed James Comer administer corporal punishment to her two brothers. In the June 3, 1996 video that was made to record F.J.'s remarks concerning James Comer, together with statements she made to others, F.J. demonstrates sufficient appreciation of the meaning of the duty and responsibility to tell the truth to warrant a finding that she was competent for that purpose. In the video she describes that James Comer made her touch his "private parts". She did not describe the period of time over which the sexual contacts were made between James Comer and F.J. She did recount how these events had occurred on a number of occasions. On one occasion her clothes were off when James Comer touched her. In the video tape F.J. describes that James Comer had touched her breast and genital area by pointing to those areas on her body. F.J. identified that the occasions when she was inappropriately touched occurred when Mary Comer was not at home. In the video F.J. refers to the fact that she told Mary Comer about being touched by James Comer, but that Mary Comer did not believe her. By October 1995 F.J., V.K. and their brothers had been placed in the foster home of Roberta Graham where they presently reside. While living with Graham, F.J. told Graham that "Dada", referring to James Comer, was touching F.J. in wrong places, that he touched her on her breasts, and that he took her hand and massaged his "private part", referring to his penis. F.J. told Graham that this happened when Mary Comer went out to get drinks. F.J. told Graham that the other children were outside playing and the door was locked and James Comer and F.J. were inside when events occurred. F.J. mentioned to Graham that an incident happened at night when everyone was in bed and "Dada" called F.J. out alone and then the other children, her brothers and V.K. came out of the room. This is the night time incident V.K. testified about. This incident at night occurred when Mary Comer was not at home. F.J. told Graham that on one occasion James Comer removed F.J.'s clothes when she came out of the bathroom after blocking the door to prohibit F.J.'s exit. F.J. expressed concern to Graham that "Dada" was going to turn from doing things to F.J. to doing things to V.K.. F.J. told Graham that she had reported James Comer's actions to Mary Comer in saying that she told "Granny". F.J. stated to Graham that when F. J. told Mary Comer, she, (Mary Comer) said, "If you tell anyone, you will have to leave". F.J. made the remarks about James Comer's inappropriate conduct approximately thirty times to Graham and was consistent about the facts reported. The remarks by F.J. on the video tape and to Mims, Gipple and Graham which have been recited concerning James Comer are credited as true. Following the accusations about James Comer's sexual misconduct directed to F.J., Petitioner through its employees, Esther Tibbs and Judy Parks, met the Respondents on February 5, 1996 to advise Respondents that Petitioner intended to revoke the foster care license. The grounds for seeking revocation were related to the sexual misconduct by James Comer and the use of corporal punishment in disciplining the foster children. In the past, commencing 1988, Petitioner had received complaints concerning the use of corporal punishment by Respondents in disciplining their foster care children. Petitioner through its employees had counseled Respondents about the inappropriateness of corporal punishment. In one instance correspondence was sent to the Respondents on this subject reminding the Respondents that it was inappropriate to use corporal punishment even to the extent of an "occasional slap on the backside. . .under any circumstances". This reminder was sent through correspondence dated March 25, 1993. In 1988, unrelated to the foster children who have been referred to in these facts, Pamela Davis, Guardian Ad Litem for A.L. spoke to James Comer concerning his administration of corporal punishment to that child. James Comer told Davis that he had beaten the child "to beat the devil out of her" and it hadn't worked. He further stated that Davis could take the child from his home. Davis did remove the child from foster care provided by Respondents. On February 12, 1996 Respondents requested a formal administrative hearing to contest the grounds for revoking their foster home license.
Recommendation Based on the facts found and the conclusions of law reached, it is, RECOMMENDED: that a Final Order be entered which denies the renewal of the Family Foster Home License for Respondents. DONE and ENTERED this 5th day of July, 1996, in Tallahassee, Florida. CHARLES C. ADAMS, 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 July, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 96-0943 The following discussion is given concerning proposed facts by the Petitioner: Paragraphs 1-5 are subordinate to facts found. Paragraph 6 is not necessary to the resolution of the dispute. Paragraphs 7 & 8 are subordinate to facts found with the exception that the fourth sentence is not supported by competent evidence in the record, nor are paragraphs 9 and 10. Paragraph 11 is subordinate to facts found. Paragraph 12 in the first sentence is subordinate to facts found. The last sentence to paragraph 12 and paragraph 13 are not necessary to the resolution of the dispute. Paragraph 14 is discussed in the evidentiary ruling under Section 90.803(23), Florida Statutes. Paragraph 15 is subordinate to facts found with exception that the next to last sentence in the reference that on the second occasion "Granny" had gone somewhere is not supported by competent evidence in the record. Paragraphs 16-18 are subordinate to facts found. Paragraph 19 is not supported by competent evidence in the record. Paragraphs 20 and 21 are subordinate to facts found with the exception that the reference to "they" in paragraph 21 should be "she". The first and the third sentence to paragraph 22 are not supported by the record. The second sentence is subordinate to facts found. Paragraph 23 is not supported by the record. Paragraphs 24 and 25 with the exception of the last phrase to paragraph 25 are subordinate to facts found. The last phrase to paragraph 25 is not supported by the record. Paragraph 26 is subordinate to facts found with the exception of the reference to October 10, 1988, which is not supported by competent evidence in the record. Paragraphs 27-29 are not necessary to the resolution of the dispute. Paragraph 30 is subordinate to facts found with the exception of the reference to November 26, 1995 which is not supported by evidence in the record. Paragraph 31 is not necessary to the resolution of the dispute. The second paragraph 29 is subordinate to facts found. COPIES FURNISHED: Lucy Goddard, Esquire Department of Health and Rehabilitative Services 1000 Northeast 16th Avenue, Box 3 Gainesville, Florida 32601 James and Mary Comer, pro se Post Office Box 722 Micanopy, Florida 32667 Gregory D. Venz, Agency Clerk Department of Health and Rehabilitative Services Building 2, Suite 204X 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard Doran General Counsel Department of Health and Rehabilitative 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)
The Issue The central issue in this case is whether the Respondents' foster care license should be renewed.
Findings Of Fact At all times material to this case, the Respondents operated a foster home in Broward County, Florida, pursuant to a license that was issued by the Department in January, 1994. In March, 1994, the Department placed a foster child, M.A.G., in the Respondents' home. This child, M.A.G., was an extremely troubled girl whose interfering biological family kept her in an emotional state of constant turmoil. The "Visitation Reports" introduced into evidence by the Department reflect that the child's adjustment to placement with the Respondents went from "good" to "fair." As the contacts with her family continued, the child's progress with the Respondents deteriorated. The evaluation reflects that the placement went from meeting the child's needs to not meeting the child's needs as of a December 14, 1994 visit. In fact, Respondents asked the Department to remove M.A.G. from their home. Ms. Suppa described the family relationship between M.A.G. and the Respondents as "tumultuous." The contacts between M.A.G. and her biological family caused severe unrest within the home as M.A.G. was torn between her biological family and her growing interest in the Respondents. M.A.G.'s emotional problems were not unusual for children in the custody of the Department. In fact, many foster children in the custody of the Department have emotional problems. Ms. Suppa was involved in family therapy with the Respondents and M.A.G. from October, 1994, to the time M.A.G. was removed from the Respondents' home on January 6, 1995. Ms. Suppa verified that the Respondents did not abuse M.A.G. Ms. Suppa acknowledged that Respondents did not provide the necessary emotional support that M.A.G. needed, and recommended to the Department that the placement be changed. Ms. Suppa could not state what the Respondents could have done, which they did not try, to avoid the incident complained of by the Department. M.A.G. spoke of suicide on occasions but Respondents did everything asked of them to assist the girl. On December 18, 1994, M.A.G. was voluntarily admitted to the Florida Medical Center for psychological testing following an incident that occurred in the Respondents' home. On this occasion, M.A.G. had a knife in her hands and threatened to kill herself. The Respondents called the police to assist them. On release, M.A.G.'s emotional state continued to deteriorate despite Respondents' best efforts. Respondents took M.A.G. to counseling. They never missed a counseling session and willingly agreed to explore any options that were suggested. When M.A.G. chose to spend the 1994 holidays with Respondents, she was cursed by her sister and ignored by her grandmother. This caused a serious depression. M.A.G.'s biological mother did not attend her appointed counseling sessions. M.A.G. was disappointed since she had hoped to see her mother. On December 28, 1994, M.A.G. missed one dose of her medication. No conclusion is reached that this omission led to, or caused, the incident of January 3, 1995. On January 3, 1995, M.A.G. had to be Baker Acted. She was again admitted to the Florida Medical Center for psychological testing and treatment following an incident that occurred in the Respondents' home. Once again M.A.G. had threatened to kill herself with a knife. Since being moved from Respondents' home M.A.G. has progressed and is no longer on medication. No conclusion is reached from this progress, however, since M.A.G.'s biological family's contact with her is unknown. M.A.G. had a strong loyalty to her biological family. Respondents have been foster parents for many years in New York. This was the first incident wherein a foster child could not adjust to the Respondents' home. The Respondents tried everything within their control to make the foster relationship with M.A.G. work out.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Department of Health and Rehabilitative Services enter a final order approving Respondents' request for licensure renewal. DONE AND RECOMMENDED this 2nd day of November, 1995, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH 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 2nd day of November, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-1556 Rulings on the proposed findings of fact submitted by the Petitioner: Paragraphs 1, 2, 3, 6, 7, 9, and 11 are accepted. Paragraphs 4, 5, 8, 10, 12, 13 and 14 are rejected as irrelevant or not supported by the weight of credible evidence. Rulings on the proposed findings of fact submitted by the Respondents: Paragraphs 1, 2, 3, 4, 5, 8, and 9 are accepted. Paragraphs 6, 7, 10, 11, and 12 are rejected as irrelevant or comment. COPIES FURNISHED: Robert L. Powell Agency Clerk Dept. of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Kim Tucker General Counsel Dept. of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Carole C. Wilhelm Department of Health and Rehabilitative Services 201 W. Broward Boulevard Fort Lauderdale, Florida 33301 Carole A. and Alex Lezdey 9711 N.W. 20th Street Coral Springs, Florida 33701
