The Issue The issue is whether Petitioners should be licensed to operate a foster home in Marianna, Jackson County, Florida.
Findings Of Fact Respondent licensed Petitioners to operate a foster home in Respondent's District No. 9, West Palm Beach, Florida, beginning in 1995 through April 1, 2000. The Department of Health, under its Children's Medical Services Program, licensed Petitioners as medical foster parents for almost two years of that time. At all times material to this proceeding, Petitioners had five children living with them in West Palm Beach, Florida. Two boys, aged six and three, were Petitioners' adopted sons. A two-year-old boy, A.B., and his one-year-old sister, T.B. were medical foster children. C.S. was a two-year-old female foster child. In August 1999, Petitioners bought a home in Respondent's District No. 2, which includes Marianna, Jackson County, Florida. Mr. Mayes is a carpenter and intended to make repairs to the home before moving his family to North Florida. Petitioners knew their foster home license in District No. 9 was not transferable to District No. 2. Therefore, they applied for a foster home license in District No. 2. Petitioners wanted their three foster children to move with them to Mariana, Florida. Petitioners hoped to adopt C.S. and to keep A.B. and T.B. in the same placement until another family adopted them. All of the foster children had been in Petitioners' home since they were a few days old. A.B. was a very active two-year-old child. He regularly climbed out of his crib. On one occasion he climbed up on the stove and turned on the burners. He seemed to "have no fear." In the fall of 1999, Mrs. Mayes requested Respondent to provide her with behavior management assistance for A.B. Because Petitioners were planning to move out of District No. 9, Respondent decided to wait until A.B. was settled after Petitioners' move to perform the behavior management evaluation. In the meantime, Petitioners could not keep A.B. in his highchair during mealtime. They had difficulty keeping him in his crib. They bought a safety harness and attempted to use it to keep A.B. in his crib on one occasion and in his highchair on another occasion. A.B. was able to wiggle out of the harness on both occasions. Petitioners subsequently discarded the harness. They resorted to tightening the highchair's feeding tray in order to keep A.B. still long enough to feed him. Petitioners never used and never intended to use the harness to punish A.B. Petitioners usually disciplined the children by placing them in timeout for one minute per year of age. Timeout for Petitioners' foster children usually meant being held in Mrs. Mayes' lap. Mrs. Mayes admitted using the safety harness on A.B. during a telephone conversation with Respondent's medical foster care counselor in January 2000. The counselor informed Ms. Mayes that foster parents are not allowed to use a harness to restrain foster children. Prospective foster parents must participate in and complete training classes designed by Respondent. Persuasive evidence indicates that Respondent teaches prospective foster parents during this training that children should never be restrained by a harness. Petitioners have taken these training classes. If A.B. and the other children were free to go into a bedroom, they would pull everything out of the chest of drawers. They would flush objects down the toilet in the bathroom. Mr. Mayes put a hook-type latch on the door to the Petitioners' bedroom, A.B.'s bedroom, and the bathroom in the hall. The primary purpose of the door latches was to keep the children out of unsupervised areas of the home. Petitioners never used the door latches as a means of discipline. On two occasions Mrs. Mayes latched the door to A.B.'s room while he was in the room asleep. The first time she latched the door while she went to the mail box in front of her home. The other time, she latched the door while she bathed another child who had a doctor's appointment later that afternoon. On both occasions, A.B. was locked in his room for only a few minutes. Petitioners knew that they needed permission from Respondent in order to take A.B., T.B., and C.S. out of the state on vacations. On several occasions, Respondent's staff gave Petitioners permission to take the foster children to North Florida for short visits during the time that Mr. Mayes was remodeling the home. Respondent's staff approved these short visits as if they were vacations. Petitioners knew that they needed to be licensed in Respondent's District No. 2 before Respondent's staff in District No. 9 could approve the permanent transfer of the foster children. At the same time, the Respondent's staff in District No. 2 could not license Petitioners until they actually made the move with all of their furniture. Petitioners discussed their dilemma with several members of Respondent's staff in District No. 9. During these conversations, Petitioners asked Respondent if they could take the children with them and treat the time that they would be temporarily unlicensed as if it were a vacation. At least one member of Respondent's staff responded that treating the move initially as if it were a vacation was "an option that could be explored." Respondent's staff subsequently advised Petitioners that under no circumstances could the foster children move to Jackson County, temporarily or permanently, until Petitioners were properly licensed. Petitioner's never attempted to deceive Respondent; to the contrary, they were openly looking for an acceptable way to take the foster children with then when they moved. They never intended to circumvent the proper licensing process. Based on Petitioners' former experience with Respondent, they believed that treating the move as a vacation would be an appropriate way to solve what was otherwise a "catch twenty-two" situation. By letter dated March 14, 2000, Respondent's staff in District No. 2 advised Petitioners that they would receive a provisional foster home license as soon as information furnished by Petitioners and copies of Petitioners' file from the licensing unit in District No. 9 could be sent to Respondent's office in Panama City, Florida. Respondent removed the three foster children from Petitioners' home just before Petitioners moved to Jackson County on April 1, 2000. In a memorandum dated April 19, 2000, Respondent listed Petitioners' home as one of two medical foster homes in Jackson County, Florida. Despite the representation in this memorandum, Respondent issued the letter of denial on June 5, 2000.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent enter a final order denying Petitioners a foster home license. DONE AND ENTERED this 20th day of October, 2000, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of October, 2000. COPIES FURNISHED: James Mayes Gail Mayes 4561 Magnolia Road Marianna, Florida 32448 John R. Perry, Esquire Department of Children and Family Services 2639 North Monroe, Suite 252-A Tallahassee, Florida 32399-2949 Virginia A. Daire, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue in this proceeding is whether the Department of Children and Family Services should revoke the foster care license of Joey and Donna Tolbert.
Findings Of Fact At all times material to this proceeding, the home of Joey and Donna Tolbert was licensed by the Department as a foster home. They were initially licensed provisionally in December of 1998 for one year. They received a regular license in 1999 and retained a regular license until December 1, 2000, when they were issued license number 1200-008-2, a child specific license with a capacity of two children. The Relicensure Process Prior to issuing the child specific license, two Department employees of the Department, Mary Martin, a relicensing counselor for foster homes, and Ann Brock, a family services counselor, conducted a relicensing visit to the Tolbert's home on October 12, 2000. Donna Tolbert was present but Joey Tolbert was out of town. During the home visit, a Bilateral Service Agreement (Agreement) was signed by Mrs. Tolbert and Ms. Martin. The Agreement was signed and dated by Mr. Tolbert and again by Ms. Martin on October 17, 2000. The relicensing visit resulted in a Foster Home Relicensing Summary written by Mary Martin. The Summary recommended that the Tolberts be issued a regular license effective December 1, 2000 through December 1, 2001, for the capacity of two children. The Summary was signed by Mary Martin on October 26, 2000, and read in pertinent part as follows: The Tolbert family is an invaluable asset to this Department. They have made themselves available on a regular basis for the placement of children when needed. Both Mr. and Mrs. Tolbert are experienced in childcare and they have three (3) children with special needs whom they adopted prior. They should not be asked to take numerous children with severe behavioral problems or teenagers. It appears Mr. and Mrs. Tolbert have satisfied the Florida Administrative Code, Chapter 65C-15, requirements. It is respectfully recommended that the Tolbert family be issued a REGULAR license, effective December 1, 2000, through December 1, 2001, for the a capacity of two (2) children, ages birth (0) through twelve (12) years of either gender. Children with severe behavioral problems and teenagers are not to be placed in the Tolbert home. However, Ms. Martin later wrote an addendum to the licensing summary. According to Ms. Martin, she was asked by her supervisor, Jill Green, to write the addendum. The addendum is undated but references the October 12, 2000, home relicensing visit that resulted in her original recommendation. There is also an entry dated October 16, 2000, which is a date prior in time to her signature to the original relicensure summary, and an entry dated November 17, 2000. The addendum relates to matters concerning the Tolberts and their adopted son, Mi.1/ Richard Messerly has worked for the Department for approximately 22 years and works in protective investigations in Pensacola. From June 1999 through September 2001, he was the program operations administrator for the central licensing unit of the Department. In that position, he had authority over foster care licensure. He supervised Mary Martin and her supervisor, Jill Green. Mr. Messerly signed Ms. Martin's relicensure summary on December 4, 2000, and initialed both pages of her addendum. He also created a written history of the Tolbert foster home which concluded with a recommendation that the Tolberts' foster home license be revoked: SUMMARY/RECOMMENDATIONS The Tolbert family has a positive licensing history of capably caring for many of our foster children. However, a serious change has occurred in the family's willingness to work with our staff, including rebuffing our attempts to offer them assistance with the disruption of an adoptive placement. The Tolberts have attempted to convince others that they had been requesting assistance for M for a very long period of time and that this is flatly not borne out in licensing records. The matter was never brought to our attention until the visit in October 2000, at which time the matter was promptly referred to the adoptions unit, who responded promptly. Since that time the family has not cooperated with any attempts to assist them in that matter, and they seem to be insensitive to M's plight, and are completely focused on regaining their prior licensed status, as if nothing had happened. Contacts with Pat Franklin, Kathi Guy, Sally Townsend and others reflect the absence of any prompt attempts to get help dealing with M's behaviors, yet many requests were made regarding foster children in their care with similar problems during the same time frame. It appears the family was more focused on attending the needs of foster children to the exclusion of sensitivity to their own (adopted) child's cries for help. Even when the needs were identified, the family was unwilling to become involved in attempts to remedy the problems and appeared to have given up on the child. I am very uncomfortable with the inappropriate position this family has taken in regard to our family safety staff, as well as licensing staff, and do not see how we can hope to interact positively with them given their recent radical behaviors and threats. I feel that they have violated the Bilateral Service Agreement and have failed to "Treat all members of the foster care team with respect and courtesy." I recommend that we revoke the license using the violation of the agreement in conjunction with their other oppositional behaviors, omissions, and misrepresentations reflected in family safety foster care and adoptions records. On December 1, 2000, Mr. Messerly signed a letter on behalf of Charles Bates addressed to the Tolberts which read: Dear Mr. And Mrs. Tolbert: Your home has been relicensed for the continuance placement of D and M.R. only. No other placements or overcapacity requests will be authorized at this time. A regular license is issued for twelve months pending the outcome of matters presently before the Circuit Court. If you have questions or wish to discuss this further, please contact Jill Greene, Foster Care Licensing Supervisor at (850)- 595-8451. On June 4, 2001, Mrs. Tolbert met with Charles Bates, District Administrator for District 1 of the Department. This meeting was at Mrs. Tolbert's request regarding her foster care licensure status. During that meeting, Mrs. Tolbert complained to Mr. Bates about certain adoption case workers. On August 24, 2001, Charles Bates sent a letter to the Tolberts notifying them of the revocation of their license. The letter reads in pertinent part as follows: RE: Revocation of Foster Home License. Dear Mr. and Mrs. Tolbert: This letter is to inform you that the Department of Children and Families has made a decision to revoke your foster home license. The basis for this decision is your failure to comply with Florida Administrative Code 65C-13 and the Bilateral Service Agreement (form CF-FSP 5226) which you executed. Florida Administrative Code 65C-13.009(1)(e)5. states: Work in a partnership. Develop partnerships with children and youth, birth families, the department, and the community to develop and carry out plans for permanency. Florida Administrative Code 65C-13.010(1)(c)1. states: Substitute care parents are expected to work cooperatively with the counselor as a member of a treatment team in seeking counseling, participating in consultation, and preparing and implementing the performance agreement or permanent placement plan for each child. Florida Administrative Code 65C-13.010(4)(i) states: The substitute care parents must be able to accept supervision by department staff and participate in and support case plans for children in their homes. Specifically, substitute care parents must be included in the development of performance agreements or permanent placement plans, and in the carrying out of these plans. As part of your foster care licensing, you executed a bilateral Service Agreement. The Bilateral Service Agreement that you signed enumerated the Administrative Code responsibilities and detailed responsibilities of foster parents. The paragraphs violated are listed below in pertinent part: h. To notify the department immediately of a potential change in a family composition, significant health changes or any other condition that may affect the child's well- being. Obtain authorization from the department prior to spending money for which repayment is expected. To accept the direction and supervision given by department to assist in caring for the foster child. To work cooperatively with the department to attend scheduled meetings to discuss the child and his family and to meet the needs of the child. To treat all members of the foster care team (i.e., the department, child's family, and GALS) with respect and courtesy. As stated in the service agreement, non-compliance with any of the above provisions can result in termination of the service agreement and may also result in the department revoking the home's license. You have failed to comply with the above code citations and service agreement provisions in that you have accused departmental staff of failing to disclose complete information to you and of misrepresenting statements that you have made. You have not worked cooperatively with the department employees who offered to assist you and your child; and have not worked in partnership with the department. Specifically, you have previously stated you were obtaining therapy for a child, didn't agree with the therapist's recommendation, and were obtaining a psychiatric evaluation and assessment for the child, when in fact you did not do any of those things. A review of the department records reflected concerns you mentioned to the department in October 2000, regarding your child's disruptive behavior. However you would accept no assistance even though the department offered extensive assistance. You surrendered your adopted child later that same month. Further, you have stated to a department employee that Ms. Peggy Custred and Ms. Sally Townsend should not work for the department, have accused them of wrongdoing, and have stated that you "will have their jobs." You have failed to treat members of the department with respect and courtesy. Given the above problems, I find that it would not be in the children's best interests to continue licensing your foster home and am permanently revoking your license. The Tolberts as foster parents The overwhelming evidence shows that the Tolberts were excellent foster parents. Jane Crittenden, licensing supervisor for the Department, who was a foster care supervisor at the times material to this proceeding, acknowledged that the Tolberts received the award of Foster Parents of the Year in May of 2000 for the year 1999. She also acknowledged that as far as she knew, the Tolberts excelled as far as their work as foster parents; the foster children in their care did quite well; the Tolberts always seemed to provide a loving, nurturing home to foster children placed there; the Tolberts were called on by the Department to take extra children beyond their cap, which they agreed to do; and the Tolberts cooperated with her and her case workers during the period of time she worked with them. Arlene Johnson, a former guardian ad litem for a foster child in the Tolberts' home from December 1998 until July 1999, visited the Tolbert home about twice a week during that time. She has been in a lot of foster homes and described the Tolberts' home as "the best one I've been in." Gerald Reese, a family service counselor for the Department, worked with the Tolberts over a period of 6 to 7 months in 1999 and 2000 while he was a case worker. During that time, Mr. Reese did not have problems dealing with the Tolberts, did not observe any instance in which the children were not adequately provided for, and observed that the foster children in the Tolberts' home were happy. Richard Messerly acknowledged that the Tolberts were exemplary foster parents as far as the care they provided to the foster children in their care. Mr. Messerly also acknowledged that the only staff the Tolberts had problems with were particular members of the adoption staff, not the Department's foster care staff. The wallpaper expense Carlita Bennett was employed by the Department from 1986 until March of 2002. When she was working for the Department in the capacity of a foster parent recruiter in May of 2001, she sent an e-mail message to Mary Martin regarding the Tolberts which contained the following: 11/04/99 A restitution claim form was submitted by Mrs. T for damage to wallpaper caused by 2 yr. Old. The bill total was $1,151.04 to replace wallpaper in living room, dining room, kitchen and hall. PS Counselors were not made aware of the damage until repairs were made. According to Ms. Bennett, it is regular procedure for someone from the department to go out to a foster home and look at damage before repairs are made. The Bilateral Services Agreement requires the foster parents to obtain authorization from the Department prior to spending money for which repayment is expected. According to Ms. Bennett, this policy was not followed in this instance. Ms. Bennett did not explain why she sent the e-mail message on May 30, 2001, to Mary Martin referencing an incident that took place two and one-half years earlier. According to Mrs. Tolbert, a former two-year-old foster child in her care ripped the wallpaper in the dining room and the living room. Her dining room, kitchen, and hallway are all one color. According to Mrs. Tolbert, she gave an estimate of the repair work to Shiela Campbell, an employee of the Department. Richard Messerly acknowledged that this matter of the expense for wallpaper would not in and of itself have resulted in the Department revoking the Tolberts' foster care license. At most, the Department would have only talked to the Tolberts had there not been other issues about which the Department was concerned. Notification to Department of change of condition The August 24, 2001, revocation letter from Mr. Bates alleged that the Tolberts failed to notify the Department of a potential change in conditions in the home that might affect the well-being of foster care children in the home. This allegation relates to behavior problems of the Tolberts' adopted son, Mi. The Tolberts adopted Mi. in September of 1998. They signed surrenders of Mi. in November of 2000. The Tolberts' surrender of Mi. was central to the Department's decision to revoke the Tolbert's foster care license.2/ Mi. began having serious behavior problems in 1999. Mrs. Tolbert recalls telling Gerald Reese, the foster care worker assigned to the Tolberts at that time, about problems with Mi. Mr. Reese acknowledged that Mrs. Tolbert mentioned to him problems she was having with Mi. to which he responded that she should bring it to the attention of the adoption case worker. The Tolberts' adoption case worker was Sally Townsend. Mrs. Townsend recalls that Mrs. Tolbert stopped by her office three times when Mrs. Tolbert was in the Ft. Walton Beach Service Center to see other department employees. Mrs. Townsend acknowledged that Mrs. Tolbert told her of behavior problems with Mi. the first time she stopped by Mrs. Townsend's office. The second time Mrs. Townsend recalls that Mrs. Tolbert told her Mi.'s behavior problems were better. The third time, however, Mrs. Tolbert informed Mrs. Townsend that Mi.'s behavior was much worse. Mrs. Tolbert remembers these encounters with Mrs. Townsend differently. According to Mrs. Tolbert, she met with Mrs. Townsend approximately 10 times during which she spoke to her about Mi.'s behavior problems. According to Mrs. Townsend's case notes, Mrs. Tolbert told her on October 24, 2000, that Mi. was urinating all over the house, had gotten a butcher knife out of a drawer in the kitchen, and shoved a puppy's head under a piece of furniture. Evidence was presented at hearing regarding whether or when the Tolberts received notice that Mi. had significant problems before he was adopted by the Tolberts. However, what is important for purposes of this proceeding is when was the Department notified of Mi.'s problems. The Department knew of Mi.'s previous problems prior in time to the Tolberts adopting Mi. and were told as early as 1999 that the Tolberts were experiencing behavior problems with Mi. Kathi Guy is an adoption program specialist for the department. She met with the Tolberts immediately after Mrs. Tolbert met with Mr. Bates on June 4, 2001. On June 21, 2001, she wrote a memorandum to Charles Bates concerning the issues relating to the Tolberts. Regarding the issue of the Tolberts' responsibility of notifying the Department of Mi.'s behavior in relation to the foster children in the home, Ms. Guy wrote, "It is unclear what responsibility the Tolberts had to inform Central Licensing of M's behaviors that may have had injurious effects on foster children in their care." Working in partnership The June 24, 2001, revocation letter alleges that the Tolberts failed to work in partnership with the Department and did not obtain certain services for Mi. although they were offered. It is important to remember that the provisions to which Mr. Bates' revocation letter references are part of the Bilateral Services Agreement that pertained to the Tolberts' role as foster parents. However, Mi. was their adopted son, he was not a foster child at that time. Further, there is ample evidence in the record that the Tolberts sought and received services for Mi. over time, although they were in disagreement with the Department regarding certain services during the time immediately preceding the surrender of Mi. Marianne Vance is a first grade teacher. Mi. was in her class for two years. According to Ms. Vance, Mi. received testing in school for learning disabilities and for "everything possible." When Mi.'s behavior problems became worse during his second year in Ms. Vance's class, Mrs. Tolbert sought assistance from the school. The school counselor worked with Mi. and Mrs. Tolbert. According to Ms. Vance, the Tolberts did everything possible in seeking help or assistance.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Children and Family Services enter a final order rescinding its revocation of the Tolberts' foster care license. DONE AND ENTERED this 31st day of July, 2002, in Tallahassee, Leon County, Florida. BARBARA J. STAROS 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 July, 2002.
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.
The Issue The issue in this case is whether Petitioner should revoke Respondents' foster home license for use of corporal punishment of a foster child in violation of Section 409.175(8), Florida Statutes (2001), and Florida Administrative Code Rule 65C-13.010. (Citations to statutes are to Florida Statutes (2001), and citations to rules are to rules promulgated in the Florida Administrative Code in effect on the date of this Recommended Order.)
Findings Of Fact Petitioner is the state agency responsible for licensing and regulating foster homes in Florida. Respondents are licensed foster parents. On November 1, 2001, Petitioner's Child Protection Team received an abuse report alleging that Respondent, Yvonne Lindsay, had administered corporal punishment to a foster child under Mrs. Lindsay's care and identified in the record as D.J. D.J. was born on May 6, 1997. D.J. urinated in the van owned by Respondents. D.J. urinated in the van regularly. Mrs. Lindsay became angry and grabbed D.J. forcefully by the arm. Mrs. Lindsay testified that she did not spank D.J. Mrs. Lindsay's denial concerning corporal punishment is neither credible nor persuasive. On November 2, 2001, members of the Child Protection Team examined D.J. at one of their offices. One team member who observed D.J. is an Advanced Registered Nurse Practitioner (ARNP). The ARNP has specialized in family practice since 1980 and was the supervising nurse practitioner in the examining room when other members of the Child Protection Team examined D.J. The ARNP observed fresh red contusions on D.J.'s back as well as numerous healed lesions on D.J.'s buttocks from old injuries. The ARNP observed D.J. herself and supervised the examination.
Recommendation Based upon the foregoing Findings of Fact and Conclusion of Law, it is RECOMMENDED that the Petitioner enter a Final Order finding that Mrs. Lindsay used corporal punishment against one of her foster children in violation of Section 409.175 and Rule 65C-13.010 and revoking Respondents' foster care license. DONE AND ENTERED this 6th day of March, 2003, 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 6th day of March, 2003. COPIES FURNISHED: Richard Cato, Esquire Department of Children and Family Services 400 West Robinson Street Suite S-1106 Orlando, Florida 32801-1782 J. William Masters, Esquire 2901 Curry Ford Road, Suite 207 Orlando, Florida 32806 Paul Flounlacker, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700 Jerry Regier, Secretary Department of Children and Family Services 1317 Winewood Boulevard Building 1, Room 202 Tallahassee, Florida 32399-0700
The Issue The issue in this case is whether Petitioner should revoke Respondents' foster home license based on violations of section 409.175(9), Florida Statutes (2014), and provisions of Florida Administrative Code Chapter 65C-13 alleged in the Notice of Intent to Revoke Foster Home License dated April 16, 2015.
Findings Of Fact Petitioner is the state agency responsible for licensing foster care parents and foster homes pursuant to section 409.175.2/ Respondents are foster care parents in a foster care home licensed as Provider FSFN ID #100032652, the therapeutic foster home at issue in this proceeding.3/ A.A., an eight-year-old child, was placed into Respondent's foster home in April 2014.4/ On the afternoon of September 4, 2014, Respondent Cherie Iturriaga took A.A. and her two grandchildren to a shopping center. When they were ready to leave, A.A. refused to get into the family van. Mrs. Iturriaga testified that she tried, for approximately ten to 15 minutes, to persuade A.A. to get into the vehicle, but he refused. She became very frustrated, yelled at A.A. to get into the van, and began to back the van out of the parking space while A.A. was standing next to the van's open door.5/ A passerby called 911 to report that Mrs. Iturriaga—— who the passerby characterized as A.A.'s "grandmother"——was attempting to make A.A. get into the vehicle against his will. The passerby told A.A. "you don't have to get in the van if you don't want to." Mrs. Iturriaga also called 911 to report that A.A. would not get into her vehicle. She told the 911 dispatcher that she was not staying for him, and that she was "going home." The dispatcher told her that because the child was supposed to be in her care, she had to stay with him, and that officers already were on the way to that location. Nonetheless, Mrs. Iturriaga drove away and left A.A. in the parking lot with the passerby, who Mrs. Iturriaga characterized, in testimony at the hearing, as a "random person." The evidence does not clearly establish whether Mrs. Iturriaga left A.A. in the parking lot for "five to ten minutes," as she claimed, or for as much as 20 to 30 minutes, as indicated by other evidence in the record. Regardless, it is undisputed that she drove away from the parking lot and left A.A. in the company of a stranger. At some point, Mrs. Iturriaga returned to the parking lot to pick up A.A., but he was not there. She called 911, and the dispatcher confirmed that A.A. had been taken to the Pembroke Pines Police Department. Mrs. Iturriaga went to the police department to pick up A.A. There, she was arrested and charged with child neglect without great bodily harm, a third-degree felony; this charge ultimately was dropped. A.A. was not physically harmed as a result of being left in the parking lot. The evidence establishes that approximately 45 days before the September 4, 2014, incident, Mrs. Iturriaga requested that Citrus remove A.A. from Respondents' foster home within 30 days; however, he was not timely removed. When the incident giving rise to this proceeding occurred, A.A. was immediately removed from Respondents' foster home. Another child, J.O., who was approximately 14 years old at the time of the incident, was placed in Respondents' foster home approximately two and one-half years before the incident. Since then, J.O. has formed very close bonds with both Respondents, particularly Mr. Iturriaga. At the time of the hearing, J.O. had not been removed from Respondents' home and continued to reside with them. J.O. does not wish to be removed from Respondents' home. Eric Sami serves as the guardian ad litem for J.O., and has done so for the past three and one-half years. Mr. Sami testified, persuasively, that when he was assigned to J.O.'s case, J.O. was a very withdrawn, depressed, socially unstable child who had been moved through several different foster homes, and who was academically struggling. Since being placed in Respondents' home, J.O. has flourished. He has made friends, his academic performance has dramatically improved, and he is no longer depressed and socially unstable. According to Mr. Sami, Respondents have treated J.O. as if he were their own child, including taking him on family vacations and involving him in all holiday celebrations. Mr. Iturriaga participates in parent- teacher conferences for J.O. and has taken an interest in J.O.'s school work and in helping him improve his academic performance. Sami also testified, credibly, that in the short amount of time in which A.A. lived in Respondents' home, he was an extremely disruptive force, bullying J.O. and Respondents' grandchildren and killing ducks in front of Respondents' granddaughter——an event that was extremely traumatic for her to witness. Sami observed, and the undersigned agrees, that it is fundamentally unfair for J.O. to suffer the consequences of Respondents' license revocation due to an event that was precipitated by A.A.'s extreme, ongoing misbehavior before he was removed from the home. Because Sami and J.O.'s therapist, Fred Leon, believed so strongly that removing J.O. from Respondents' home would have very substantial negative consequences for J.O., they advocated to Petitioner and Citrus to allow Respondents to keep their foster home license and to keep J.O. in their home. However, that did not dissuade Citrus from recommending that Petitioner revoke Respondents' license. In October 2014, J.O.'s placement was changed from foster care in Respondents' home to non-relative placement in Respondents' home. Because revocation of Respondents' license would require J.O. to be removed from Respondents' foster home, this placement change was necessary in order for J.O. to remain in the home. However, this placement change is not without negative consequences. J.O. remains in Respondents' home but they do not receive any monetary allowance for his care,6/ so they are placed in the position of supporting him without receiving any financial assistance through the foster care system. Thus, the consequence of revoking Respondents' license is that if J.O. remained in the foster care system, he would have to be moved to a licensed foster home. If he were to stay in Respondents' home in a non-relative placement, Respondents would not receive any monetary assistance through the foster care system to help with his support. Respondents' fervently wish to keep J.O. in their home, even without financial assistance through the foster care system, due to the strong emotional bond they have with him and because of the remarkable social and academic strides he has made while in their care. However, Mr. Iturriaga testified, persuasively, that this situation imposes a financial hardship on them, which, in turn, penalizes J.O. That Respondents wish to continue to provide a nurturing home for J.O., despite the financial hardship, is strong evidence that they have J.O.'s best interests at heart and that they would continue to provide the same stable, nurturing environment for him that they have provided for more than two and one-half years. As noted above, the criminal charges against Mrs. Iturriaga were dropped. Nonetheless, employees of Citrus testified that because there was an open child abuse investigation with verified findings, they could not recommend that Respondents' foster home continue to be licensed. Petitioner presented the testimony of Sonia De Escobar, licensing manager of Petitioner's Circuit II foster care program. Ms. De Escobar testified that Petitioner is seeking to revoke Respondents' license in part due to concern for the safety of children who may be placed in Respondents' foster home in the future. De Escobar noted that it is not uncommon for children in the dependency system to "misbehave,"7/ and Petitioner is concerned about Respondents' ability to deal with child misbehavior in the future. However, the evidence establishes that Respondents successfully cared for eight foster children over a six-year period and never had any problems dealing with child misbehavior until the incident involving A.A. As discussed above, the evidence establishes that A.A. was extremely aggressive and engaged in behavior that seriously disrupted Respondents' home environment. Because of A.A.'s extreme behavior, Respondents previously had given Citrus the required 30-day notice. However, Citrus did not timely remove A.A. from Respondents' home and the incident giving rise to this proceeding thereafter ensued. As noted above, there is no dispute that Mrs. Iturriaga intentionally left A.A. with a complete stranger for some period of time. In doing so, she endangered his health and safety, in violation of section 409.175(9)(a)1. However, the undersigned finds that mitigating circumstances in this case militate against revoking Respondents' foster home license. Specifically, Respondents enjoyed a spotless record as foster parents before the incident involving A.A. Further——and very importantly——they have fostered a very successful, nurturing, long-term parental relationship with J.O. that will be jeopardized if their foster home license is revoked. Finally, it is undisputed that A.A.'s behavior was extremely aggressive, disrespectful, and disruptive throughout the time he was placed in Respondents' home. On September 4, 2014, his behavior finally caused Mrs. Iturriaga to "snap."8/ Although her actions unquestionably were inappropriate and affected A.A.'s health and safety, the evidence indisputably shows that this was a one-time incident that occurred while Mrs. Iturriaga was under significant duress, and that, under any circumstances, A.A. was not injured. The undersigned further notes Citrus' role in this incident. As the child placing agency, Citrus is charged with placing foster children in foster homes, and with removing them when circumstances warrant. As discussed above, in July 2014, Respondents gave Citrus the required 30-day notice for transitioning A.A. out of their home. However, Citrus failed to timely meet its obligation to remove A.A. from Respondents' home and this incident subsequently occurred. Had Citrus met its obligation to timely remove A.A. from Respondents' home, this incident would not have occurred. Thus, Citrus is not without blame in this matter. The undersigned further notes that if Respondents were allowed to keep their license, Citrus, as the child placing agency, is obligated under the Bilateral Agreement to consult with Respondent before placing children in their home. This consultation process presumably would help ensure that children having extreme behavioral problems are not placed in Respondents' home in the future. For these reasons, the undersigned finds that allowing Respondents to keep their foster home license would enable them to continue their close, nurturing relationship with J.O., and, further, likely would not result in any danger or other adverse effect on the health and safety of foster children who may be placed in their home in the future.9/
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 dismissing the Notice of Intent to Revoke Foster Home License issued on April 16, 2015, and imposing a corrective action plan on Respondents' foster home license to the extent deemed appropriate. DONE AND ENTERED this 17th day of February, 2016, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS 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 17th day of February, 2016.
The Issue Are Respondents entitled to have Petitioner renew their license to provide foster home care?
Findings Of Fact Petitioner licenses and re-licenses persons who provide residential care to children. This process is in accordance with Chapter 409, Florida Statutes, and Chapter 65C-13, Florida Administrative Code. Respondents have held a foster home license pursuant to those laws. On March 16, 1998, Petitioner advised Respondents that Respondents would not be re-licensed for the upcoming year for reason that: "A recent investigation of neglect resulted in a confirmed report against you." As was revealed at the hearing, the more specific basis for the denial was in accordance with Section 409.175(8)(b)1, Florida Statutes, in which Petitioner accused Respondents, in the person of Sherrie Rund, of a negligent act which materially affected the health and safety of a child in her home. That child is J.V., date of birth July 15, 1995. Moreover, the basis for non-renewal of the foster home license was premised upon the further allegation that Sherrie Rund was found by Petitioner's counselor to be unable to secure the "Abuse Registry" prior to issuance of a new foster home license, as provided in Rule 65C- 13.006(3), Florida Administrative Code. On January 6, 1998, Respondents were caring for three foster children in their home in Inverness, Florida. In addition to J.V. there was M.V., who was 3½ years old, and J.S., who was 12 months old. J.V. and M.V. are brothers. The day before Petitioner had asked Respondent, Sherrie Rund, to take two additional children into her home to receive foster care. On the day before, Mrs. Rund had also suffered a miscarriage. Mrs. Rund left her home on the morning of January 6, 1998, to run some errands and to eventually drive to Brooksville, Florida, to pick up the newest foster children. At some point in time in her travels on January 6, 1998, with J.V. and J.S. in her car, Mrs. Rund noticed a loud knocking sound in her car and decided to have an automobile mechanic with whom she was familiar check the status of her car, in anticipation of her trip to Brooksville. Upon arriving at the mechanic's shop, the mechanic told Mrs. Rund that she was not going anywhere in the car, and that something was not right with the car. The mechanic got into the car with Mrs. Rund and they made a test drive. When they returned to the mechanic's shop, the mechanic pointed out a block that was part of the suspension system, referred to as a lift kit in the area of the rear axle. That block had shifted over and the mechanic told Mrs. Rund that all that would be necessary to correct the problem was to adjust two bolts. When Mrs. Rund, the mechanic, and her children had returned to the shop, the children were asleep. As a consequence, Mrs. Rund asked the mechanic if it would be acceptable to leave the children in the car while the mechanic made repairs to the automobile. Apparently, the mechanic was not opposed to that arrangement. The mechanic told Mrs. Rund that it would only take a couple of minutes to tighten the parts that were causing the problem. With that assurance, Mrs. Rund allowed the mechanic to lift the car off the concrete floor in the shop by the use of a hydraulic lift. Once the car had been lifted, the distance from the car to the shop floor was approximately 3 to 4 feet. The mechanic began his work and noticed that threads in the bolts that were being tightened had become stripped. At that time Mrs. Rund was sitting on a stool by the car door. The mechanic summoned her and asked to show her what was wrong. As Mrs. Rund walked around the car she heard a slight noise. It was J.V. J.V. had been strapped in his car seat attached to the back seat of the automobile, but he had awakened from his nap in the back seat of the car, gone between the seats in the front of the car, opened the door and stepped out onto the platform that supported the car on the lift. Before anyone could intervene, J.V. fell from the platform to the floor of the shop fracturing his skull. The skull fracture was of the temporal bone. In addition, J.V. also suffered an abrasion of one ear and split his lip in the fall. The automobile in question was a Jeep vehicle with tinted windows, that created a condition in which Mrs. Rund could not see into the automobile while it was on the lift. After the accident Mrs. Rund immediately picked the child up and noted that he appeared "a little incoherent." She could not drive her car. But she knew that her father was about two miles away. Mrs. Rund's father immediately responded to her request for assistance. They drove J.V. to the emergency room at the Citrus Memorial Hospital in Inverness, Florida, for treatment. Later that day, J.V. was taken to Shands Hospital at the University of Florida, in Gainesville, Florida, for additional treatment. Mrs. Rund and her father managed to transport J.V. to the emergency room at Citrus Memorial Hospital within 10 minutes of the accident. Upon arrival Mrs. Rund attempted to advise Petitioner about the accident by contacting the case worker responsible for her foster children. Four of the people who were on the list of possible contacts were unavailable. Mrs. Rund also wanted to inquire about the status of the two new children who were going to be left in her care that day. Eventually, Mrs. Rund explained to a case worker the circumstances of J.V.'s accident. In answer to her question, the case worker told Mrs. Rund that the two additional children were going to be brought to Mrs. Rund's home in any event. The children were brought to Mrs. Rund's home on January 6, 1998, and were kept for the moment by Mrs. Rund's mother. The two additional children were siblings 2½ and 5 years old. Mrs. Rund spent about 6 to 7 hours at the Citrus Memorial Hospital attending J.V. and making certain of his care. Beyond that time, Mrs. Rund felt the need to return home and take a shower because of her miscarriage the day before and because she had blood on her shirt resulting from J.V.'s injuries. Mrs. Rund also had concern about the welfare of the two additional children that were being brought to her home. There had been some discussion between Mrs. Rund and a nurse at the Citrus Memorial Hospital, who insisted that Mrs. Rund should accompany J.V. to Shands Hospital. Mrs. Rund replied that she needed to check the situation at home and then she would go to Shands. Eventually, the nurse contacted someone from the Child Protective Service. Mrs. Rund spoke to that person and having decided that it would be acceptable for J.V. to ride to Shands unaccompanied by her, Mrs. Rund allowed J.V. to be transported to Shands Hospital without her. A short time later, Mrs. Rund's parents picked her up at the Citrus Memorial Hospital and took her home. By that time Christopher Rund, Mrs. Rund's husband, had arrived at their home and was available to take care of the other four children. After spending a little time with the children in her home and taking a shower, Mrs. Rund called Shands Hospital to check on the well-being of J.V. Mrs. Rund went to Shands Hospital the following day to see J.V. The two newest children were removed from Respondents' home. J.S., one of the original three children cared for by Respondents, was also removed from their home. The brothers J.V. and M.V. were returned to the Respondents on January 9, 1998, where they have remained. M.V. and J.V. were eventually adopted by the Respondents on May 22, 1998. As Mrs. Rund acknowledges, she momentarily neglected the needs of J.V. when he fell from her automobile to the floor of the mechanic's shop. Her response to his needs beyond that point was not neglectful given the circumstances that have been described. She immediately arranged for his care and treatment. The failure to accompany J.V. to Shands Hospital was not neglectful. Petitioner instituted an investigation identified as Abuse Report 98-001853, involving the incident on January 6, 1998, in which J.V. was injured when falling from the automobile to the floor of the repair shop. That report is referred to as institutional abuse-neglect, involving the conduct of Sherrie Rund and her foster home. Through the investigation, the report was verified for inadequate supervision or care pertaining to the accident, as well as the verification of other physical injuries associated with neglect. Richard V. Perrone, Adoptions and Related Services Counselor for Petitioner, worked with the Respondents from March of 1997 through May of 1998 as an adoption counselor. In correspondence for the record, he indicates that he has seen the family, and the children in their care on a monthly basis and that the home was always appropriate and the children well cared for. In particular, Mrs. Rund was observed by Mr. Perrone to be active with children's care and appropriate services. Mr. Perrone notes the adoption of the children that he visited.
Recommendation Upon consideration of the facts found and the conclusions of law reached, it is RECOMMENDED: That the foster home license held by Christopher Rund and Sherrie Rund be renewed. DONE AND ENTERED this 29th day of October, 1998, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 29th day of October, 1998. COPIES FURNISHED: Joseph Sowell, Esquire Department of Children and Family Services Post Office Box 220 Sumterville, Florida 33585 Christopher Rund Sherrie Rund 13059 East Shawnee Trail Inverness, Florida 34450 John S. Slye, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue is whether Petitioners' foster home license should be revoked.
Findings Of Fact At all times relevant to this proceeding, Petitioners were licensed to operate a family foster home. Their most current license was effective through April 7, 2004. Petitioners have served as foster parents for about five years. There has been no report of child neglect or child abuse in their foster home prior to the time period relevant here. A. H. is a 10-year-old male. At all times relevant here, A. H. was in the fourth grade. Sometime prior to October 3, 2003, Respondent removed A. H. from his mother's custody and placed him in an initial foster home. A. H.'s first foster home shall be referred to hereinafter as the Gs' foster home. Thomas Munkittrick worked for Respondent as a family service counselor. A.H. was one of Mr. Munkittrick's clients. A. H. had separate visitations with his mother and father on October 6, 2003. Mr. Munkittrick supervised both visits. During a visit to the Gs' foster home on October 14, 2003, Mr. Munkittrick noticed a rash on A. H.'s stomach. The rash appeared to be a ringworm. Mr. Munkittrick did not observe any bruises on A. H.'s arms. On or about October 15, 2003, Mr. Munkittrick spoke to Petitioners to determine whether they would accept A. H. in their home as a foster child. For reasons that are not clear, Respondent changed A. H.'s placement to Petitioners' foster home that same day. On October 16, 2003, Mr. Munkittrick took A. H. to see a medical doctor at Express Care of Belleview. Mr. Munkittrick and A. H.'s mother were present for the medical examination, during which A. H. removed his shirt. Mr. Munkittrick did not observe any bruises on A. H.'s arms. A. H.'s medical record dated October 16, 2003, indicates A. H. had a scratch/bruise on his nose, a ringworm on his stomach, and a rash on his wrist. According to the doctor's notes, A. H. reported that he accidentally injured his nose while playing football with Petitioners' dogs. The doctor's notes do not refer to any bruises on A. H.'s arms. On October 23, 2003, Mr. Munkittrick visited A. H. in Petitioners' home. Mr. Munkittrick saw no visible marks or bruises on A. H. Instead, Mr. Munkittrick observed what he believed was dirt on A. H.'s arms. Mr. Munkittrick also observed that A. H. was slightly flushed from playing outside with Petitioners' dogs, two large Doberman Pinchers. During a visit to Petitioners' home on October 30, 2003, Mr. Munkittrick observed multiple bruises on both of A. H.'s wrists and arms. The bruises were round and as large as quarters. There were no scratch or bite marks on A. H.'s arms. Prior to October 30, 2003, Petitioners had not advised Respondent about the bruises on A. H.'s arms. During the October 30, 2003, home visit, Petitioner R. B., the foster mother, indicated that she had never seen the bruises on A. H.'s arms before Mr. Munkittrick pointed them out. She relied on A. H. to explain how he was injured. During the hearing, Petitioner R. B. admitted that she saw blue/purple bruises on A. H.'s arms for the first time two or three days after his medical examination on October 16, 2003. Despite the inconsistency of Petitioner R. B.'s statements, the greater weight of the evidence indicates that Petitioner R. B. had no first-hand knowledge as to the cause of the bruises. Her testimony that she did not cause the bruises on A. H.'s arms is credible. On October 31, 2003, Mr. Munkittrick went to A. H.'s school to photograph the bruises on his arms. He then took A. H. for an examination by Respondent's child protection team. The examination included an evaluation of the bruises by an advanced registered nurse practitioner. The nurse was qualified by training and experience to assess pediatric injuries resulting from physical and sexual child abuse. The nurse was unable to reach a conclusion as to the exact source of the bruises. She could not rule out that they were self-inflicted. However, the nurse's testimony provides competent evidence that the bruises on A. H.'s arms were consistent with being grabbed by another person and that they were inconsistent with injuries resulting from roughhousing with dogs. Bruises heal in stages identified by colors beginning with red and ending with brown before they disappear. The colors of bruises in order of healing are red, blue, purple, green, yellow, and brown. In general, a bruise is: (a) red within one to two days of infliction; (b) blue within one to four days of infliction; and (c) yellow/green from the fifth or sixth day up to the tenth day after infliction. A. H.'s bruises ranged in color from red to yellow/green to yellow. The yellow and yellow/green bruises were located on both of A. H.'s upper extremities. He had two forearm bruises with a red component. It is highly unlikely that A. H. received the bruises prior to October 6, 2003. It is more likely that the injuries causing the bruises were inflicted approximately one to two weeks prior to October 31, 2003, i.e., between October 18, 2003, and October 31, 2003. A. H. was living in Petitioners' home and attending public school during this period. On the evening of October 31, 2003, Respondent's staff decided to move A. H. to a third foster home. Respondent's child protective investigator took A. H. back to Petitioners' home to pick up his clothes and belongings. Petitioner R. B. became excited and increasingly emotional when she learned that Respondent was changing A. H.'s placement to another foster home. Petitioner R. B. began yelling, in A. H.'s presence, that he was a liar and a "schizo" just like his "schizophrenic mother." The child protective investigator had to ask A. H. to leave the room when Petitioner R. B. began calling him and his mother names. Petitioner R. B.'s behavior on the evening of October 31, 2003, was inappropriate. However, the deputy sheriff, who was assisting with the change in placement, did not make any arrests. On the evening of October 31, 2003, and during the hearing, Petitioner J. B., the foster father, admitted that he had seen the bruises on A. H.'s arms sometime during the week before October 31, 2003. On both occasions, Petitioner J. B. stated that A. H. was crazy. Petitioner J. B. had no first-hand knowledge as to the cause of the bruises. During the hearing, Petitioner J. B. provided credible testimony that neither he nor his dogs caused the injuries. In order to operate a foster home, foster parents must undergo training on an annual basis. The training includes knowing when to advise Respondent about injuries to their foster children. The requirement to report injuries is a part of the annual service agreement signed by Respondent's staff and foster parents.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent enter a final order revoking Petitioners' foster care license. DONE AND ENTERED this 12th day of August, 2004, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of August, 2004. COPIES FURNISHED: J. B. (Address of Record) R. B. (Address of record) Ralph J. McMurphy, Esquire Department of Children and Family Services 1601 West Gulf Atlantic Highway Wildwood, Florida 34785 Paul Flounlacker, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue presented is whether Petitioner's foster care license should be renewed.
Findings Of Fact At all times material hereto, Petitioner was licensed by the Department to provide foster care for one child in the age group of 6 to 10. During the months of November and December, 1999, however, the Department had three infants and one toddler in Petitioner's care at Petitioner's small home. The youngest child placed in Petitioner's home by the Department was Domenica. When she was placed there, the Department did not tell Petitioner that Domenica had immune deficiency disease. On October 16, 1999, Petitioner's landlord began renovating the house. Over time, the central air conditioning system was replaced. When the workmen were on the roof making repairs, one of the workers stepped through a spot where the wood underneath was rotten, creating a hole in the kitchen ceiling. Wood around doorjambs unexpectedly needed replacement. As a tenant, Petitioner had no control over the speed with which the renovations to the house were accomplished. While the work was underway, the new kitchen appliances were stored in Petitioner's living/dining area. Although the house had three bedrooms, it was a small house. The extra appliances made the living/dining area very cluttered. The replacement bathtub and toilets were placed in the yard until they could be installed. At some points construction debris also lay in the yard until it could be removed. The only other items in the yard were a barbecue made from trashcans and several trash bags full of beer cans and soda cans that Petitioner collected when she went walking and later sold for extra money to spend on the children. During the morning of November 7, 1999, Petitioner took Domenica to a clinic where the doctor directed Petitioner to take her to the hospital. The child was very sick and was admitted to the hospital. While she was at the hospital with the infant, Petitioner's mother passed away. The following day a Department employee made an unannounced visit to Petitioner's home. That employee noted that the yard was cluttered and the house was cluttered and dirty. She told Petitioner to clean her house, which Petitioner did. While attending her mother's funeral, Petitioner learned that one of her sons had terminal cancer. That son came to stay at Petitioner's home the Friday before Thanksgiving and was there through the end of December, except for several hospital admissions during that time period. On December 27, 1999, three Department employees went to Petitioner's house for an unannounced site visit. The two who testified at the final hearing thought it noteworthy that Petitioner made them wait while she searched for her keys before admitting them. They also testified that a dog in the front yard had fleas. The dog was not Petitioner's. When Petitioner admitted the three employees, she had just finished taking down the Christmas tree and was in the process of cleaning the living/dining area. She held a large trash bag in her hand and continued putting the wrappings and boxes from gifts into the trash bag. The Department employees looked at tar from the roof that had been tracked onto the carpet and determined that it was dog feces. They noted that the house was very small and cluttered and saw the hole in the ceiling in the kitchen. They determined that the house was not safe for children. They saw the bathroom fixtures and the beer cans and soda cans in the yard and determined that the yard was not safe for the children to play outside. No consideration was given to the fact that the house was undergoing renovations or the fact that it would be unusual for anyone to have infants playing in a yard. Although the employees concluded that Petitioner's home constituted an "unsanitary" condition, they did note that the bedroom and bathroom used for the children were clean, that the sheets in the cribs were clean, and that the children's clothes were clean and neatly folded. Petitioner had placed one of the infants in a child seat in the living area so she could watch him while she was cleaning the house. One of the Department employees unreasonably feared that Petitioner could not get to the child quickly enough if there were a problem, due to the clutter. The child in the dining/living area was the only one at home when the Department's employees were there. Petitioner's sister had taken the other children to her home so that Petitioner could clean the house after Christmas. Petitioner's sister was her Departmentally-approved back-up, i.e., someone approved to care for the children if Petitioner were unable. Petitioner did not know that since her sister had just recently closed her own foster home, which had been licensed by the Department, her sister was no longer permitted to have Petitioner's foster children in her home but could only look after them in Petitioner's home. The Department employees went to Petitioner's sister's home and determined that the children were safe. They summoned other Department employees to remove the children from the care of both Petitioner and Petitioner's sister. A Department caseworker visited Petitioner's home on August 11, 1999; October 20, 1999; and November 17, 1999. That employee filed with the Department reports verifying that the condition of the home was acceptable; that the environment was safe for the children; that the children were healthy and well fed; that there were no signs of neglect or abuse; and that the children were appropriately placed in Petitioner's home. The forms completed by that caseworker contain an acknowledgement that the forms were accurately and truthfully completed under penalty of termination of employment. Petitioner now lives in her mother's home, which is much larger than the house she was renting.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered granting Petitioner's request to renew her foster home license. DONE AND ENTERED this 8th day of January, 2001, in Tallahassee, Leon County, Florida. LINDA M. RIGOT 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 8th day of January, 2001. COPIES FURNISHED: Mary Lyles 14501 Polk Street Miami, Florida 33176 Rosemarie Rinaldi, Esquire Department of Children and Family Services 401 Northwest Second Avenue, N-10-14 Miami, Florida 33128 Virginia A. Daire, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard, Room 204 Tallahassee, Florida 32399-0700
The Issue The issue is whether Respondent should deny Petitioners' application to be licensed as foster parents.
Findings Of Fact Respondent is the state agency responsible for licensing and regulating foster parents in the state. Respondent first licensed Petitioners as foster parents on June 29, 2003, and renewed the license on June 29, 2004. The last license expired on June 28, 2005. Petitioners allowed their license to expire on June 28, 2005. They wanted to make improvements to a new home they had moved into before bringing foster children into the home. Petitioners submitted a completed application for a new license on March 20, 2006. By letter dated April 27, 2006, Respondent denied the application for licensure. Petitioners did not receive the notice of denial until May 3, 2006, because Respondent sent the notice to the address of record in the old license application files instead of the correct address in the application for a new license that is at issue in this proceeding. The letter denying the application for licensure incorrectly stated that Respondent intended to revoke Petitioners' license. The misstated literal terms of the letter nevertheless provided Petitioners with adequate notice of the actual proposed agency action to deny the license application. Contrary to the literal terms of the letter, Petitioners understood that the letter constituted notice of Respondent's proposed denial of their license application. Petitioners timely requested an administrative hearing by letter dated May 7, 2006. The request for hearing stated, in relevant part: [W]e received notice advising us that [Respondent] has initiated proceedings to revoke our foster home license. . . . Please note that we are not a licensed foster home at this time. Our license expired in June, 2005. So, we are somewhat confused about proceedings to revoke something that does not exist. Please be advised that we did [sic] however, complete an application for a 'new' foster care license. . . . We were also told that, [sic] our application would be denied and that we would have the right to request an administrative hearing to contest the 'denial'. If the letter that we received is in regard to our application for licensure, and if that application has been denied, then we are requesting an administrative hearing to contest that decision. Respondent's Exhibit 1C. Respondent gave the request for hearing to the agency clerk to forward to DOAH to conduct the hearing. However, the agency clerk was confused by the literal terms of the denial letter. When the agency clerk could not ascertain an existing foster home license to revoke, the agency clerk merely "sat" on the request for hearing and did not forward it to DOAH. By letter dated November 13, 2006, Respondent corrected the literal terms of the previous letter. The letter dated November 13, 2006, correctly notified Petitioners of Respondent's proposed denial of the license application. By letter dated November 23, 2006, Petitioners again requested an administrative hearing to contest the proposed denial of the license application. In addition, the request for hearing notified Respondent of Petitioners' intent to rely on the so-called default license provisions in Subsection 120.60(1), Florida Statutes (2006).1 Respondent gave the request for hearing to the agency clerk. This time, the agency clerk referred the matter to DOAH. However, the agency clerk did not refer the request for hearing to DOAH within the 15 days mandated in Subsection 120.569(2)(a). Rather, DOAH received the referral from the agency clerk on March 6, 2007; approximately 103 days after the date of the second request for hearing and approximately 303 days after the date of the first request for hearing. The delays in referring the requests for hearing to DOAH did not impair either the fairness of the proceeding or the correctness of the agency action. It is undisputed that when Petitioners were previously licensed as foster parents they repeatedly administered corporal punishment to a foster child who was approximately four years old at the time. It is also undisputed that Petitioners punished the child by requiring the child to stand for one hour to one hour and a-half almost daily. Both types of discipline violate applicable standards for foster care and evidence Petitioners disqualification to be foster parents. The parties spent most of the evidentiary hearing on the issue of whether the four-year-old female suffered from a condition identified in the record as reactive attachment disorder (RAD). However, the trier of fact finds evidence concerning RAD to be irrelevant and immaterial to the issue of whether Petitioners are qualified to be foster parents. The evidence that Petitioners administered unauthorized discipline to a four-year-old foster child in their care clearly evidences their lack of qualification. No medical evidence established a nexus between the alleged disorder and illicit discipline of a young child.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that Respondent issue a final order denying Petitioners' application to be licensed as foster parents. DONE AND ENTERED this 22nd day of May, 2007, in Tallahassee, Leon County, Florida. S 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 22nd day of May, 2007.
Findings Of Fact In August, 1980, the home of Jacob and Donna Vermeulen was licensed by Petitioner as a pre-school foster home. Under that licensure, the Vermeulens were able to care for children from birth to four years of age. The subject of this proceeding, hereinafter referred to as S.L., was born on May 26, 1976. When S.L. was four years old he and his younger sister were removed from the custody of his natural mother (after he witnessed the homicide by bludgeoning of his father by his mother) because S.L. and his sister had been physically abused by both natural parents. Petitioner placed S.L. and his sister into the Vermeu1en foster home. After S.L. and his sister had been living with the Vermeulens for approximately six months, Petitioner removed them from the Vermeulen home and returned them to the custody of their natural mother. After approximately six months, the two children were again removed from their natural mother since she again physically abused them. Petitioner requested the Vermeulens to again take custody of S.L. and his sister. The Vermeulens were reluctant to do so since both S.L, and his sister were now older than was allowed under the Vermeulens' license, and because S.L. had problems relating with the other foster children living in that home during his first stay there. However, Petitioner's social workers begged the Vermeulens to take the children back since Petitioner was unable to find any other placement for S.L. The Vermeulens agreed to make their home available to S.L. and his sister, and the two children thereafter lived in the Vermeulen home for approximately two and one-half years prior to April 16, 1984. S.L. is a difficult child to care for; he is very emotional, developmentally immature, fearful, and fidgety. He has difficulty sleeping or listening, has a very low self-esteem, and is unable to complete tasks since he becomes emotionally frustrated. Not only is S.L. a clumsy child (most probably due to medication), he also throws himself onto the floor and onto his toys, both as part of his aggressive play behavior and also in conjunction with throwing temper tantrums. S.L. initiates fights in school, on the school bus and at home with the other children in the Vermeulen home to such an extent that fighting somewhere would have been almost a daily occurrence. His excessive demands for attention were often accompanied by negative behavior, such as hitting other children and throwing temper tantrums. On December 21, 1983, S.L. was evaluated by psychiatrist Josephine Perez. Perez diagnosed S.L. as suffering from Attention Deficit Disorder with Hyperactivity. Perez determined that the high dosages of anti-psychoic medication that S.L. had been taking were inappropriate, and she prescribed different medication for him. Perez recalls that during S.L.'s initial evaluation in December she noticed that his legs and arms were filled with bruises. S.L. began treating weekly with Perez from January 16, 1984, until April 16, 1984. On each visit at least one of the Vermeulens was present, and each visit contained a seasion between Perez and the foster parent discussing the child's progress and training the foster parent in the use of behavioral modification techniques. During those several months S.L. appeared at Perez's office on one occasion with a black eye and on another occasion with a bruising above his eye. One injury resulted from a fall in the bath tub, and another resulted from a fall out of bed; both falls were probably attributable to changes Perez made in S.L.'s medication. The Vermeulens discussed both incidents with Perez since they were concerned that S.L,'s medication was still not in the proper dosage. The Vermeulens testified that sometimes when S.L.'s medication was changed, he was unable to control even his arms and was unable to sit still long enough to eat. In January, 1984, when S.L. began treating with Dr. Perez there were six children living in the Vermeulen home: four foster children, one adopted child, and one natural child. The Vermeulens and Dr. Perez discussed the number of children living in the Vermeulen home, which prohibited giving S.L. the excessive amount of time required by him to satisfy his need for attention. Perez told the Vermeulens that in her professional opinion S.L. should be in a home with no more than one other child. In turn, the Vermeulens told Perez that they had been requesting Petitioner to remove S.L. from their home out of their concern (1) for S.L. since he needed so much more attention than was available to him and (2) for the other children not only because S.L. would kick and hit them but also because the Vermeulens had discovered S.L. in his sister's bedroom standing over her with a knife in his hand on two occasions. Although Perez agreed that S.L. should be placed a different foster setting, she did nothing to assist in obtaining a different placement and did not discuss with any employee of the Petitioner ("HRS") her recommendation and the Vermeulens' desire that S.L. be placed in a setting, preferably, where he was the only child. The Vermeulens, however, continued to request of HRS employees, including the visiting social workers and medical personnel, that S.L. be removed from their home, with visitation rights being given to the Vermeulens if possible. During this time period the Vermeulens determined that they wished to adopt Michelle, a foster child in their care. On Friday, April 13, 1984, an HRS employee went to the Vermeulen home to discuss that petition for adoption and to advise the Vermeulens that HRS would not allow them to adopt Michelle. Mr. and Mrs. Vermeulen S.L., and the rest of the children living in the home were present during that discussion. The Vermeulens were advised that they would not be permitted to adopt Michelle so long as S.L. was living in their home since he is a "therapeutic foster child" and Petitioner's rules would prohibit the adoption while a "therapeutic child" was in the home. Mrs. Vermeulen was unable to understand Petitioner's position: its refusal to remove S.L. from her home after repeated requests and its refusal to allow her to adopt Michelle for the reason that S.L. was in her home. Mrs. Vermeulen became upset, and S.L. told her and Petitioner's employee to put him in a foster home indicating he would rather be sent away than prevent Michelle from being adopted by the Vermeulens. Since the HRS employee was having a difficult time discussing HRS's position, she left the Vermeulen home. On Friday, April 13, 1984, or on Monday, April 16, 1984, S.L. became involved in a fight on the school bus on the way home from school. The bus driver told Mrs. Vermeulen about the fight. On Monday April 16, 1984, Mrs. Vermeulen took S.L. to his weekly therapy session with Dr. Perez. During that session, S.L. indicated to Perez that he had been bad and had been "paddled" on the legs. He would give her no details, but Perez believed it was Donna Vermeulen who paddled S.L. Rather than discuss it with Mrs. Vermeulen, Perez acted as though nothing had been said. Further, although a medical doctor, she did not examine S.L. Instead, Perez discussed with Mrs. Vermeulen behavioral modification techniques to be utilized with S.L. and sent them home. She then telephoned HRS, and a child abuse report was completed. On April 18, 1984, an HRS employee went to S.L.'s school, removed the child from his class, and took the child to be examined by the Child Protection Team. S.L. was first examined by the nurse. When S.L. was unable to explain to the nurse from where each mark on his body originated (or refused to), she interrogated him with questions such as "Did your mommy hit you?" The nurse made notations on a chart indicating numerous marks or bruises on S.L.'s body. However, an HRS employee saw S.L. disrobed when he was being examined by the doctor on the team and saw only two marks on his lower back. Other HRS employees went to the Vermeulen home and removed all the children. No one discussed the incident or accusation with either Mr. or Mrs. Vermeulen until the following day. Until he was removed from her class on April 18, 1984, S.L. was taught by Debbie Froug an Exceptional Education teacher for emotionally disturbed children. Although Froug describes S.L. as a basically honest child, she testified that he sometimes gets very confused. A careful review of the videotaped testimony of S.L. and of the conflicting testimony of the witnesses in this case indicates that Froug's latter description is probably an understatement. No witness in this case heard the same explanation (or accusation) as any other witness. S.L's videotaped testimony illustrates why: there is no statement made by S.L. that is not contradicted by him a few seconds later. For example the videotaped deposition contains on page 27 the following: O. Did you ever have a black eye? A. No. O. Didn't you talk to Dr. Perez about having a black eye once? A. Yes, but I didn't. How did you get the black eye? One of the kids on the bus. Things stated in the affirmative by S.L. in his deposition are also stated in the negative in that same deposition. Further, it is sometimes impossible to ascertain if S.L. is describing being hit by his real father, by his real mother, or by his foster mother. Although no accusation appears to ever have been made, including in the Administrative Complaint, that Jacob Vermeulen ever struck S.L., by the time of S.L.'s deposition eight months after the alleged incident when S.L. was asked if Jacob ever hit him, that question was answered in the affirmative. In short, the evidence is clear that S.L. had some bruises or marks on his body on April 18, 1984; that those bruises or marks were both received accidentally and intentionally inflicted, and that the bruises or marks on S.L.'s body were received as a result of S.L. falling from being uncoordinated or overmedicated, from S.L. flinging himself onto the floor or onto or against objects, and from being hit or kicked by other children with whom S.L. engaged in almost-daily physical combat. Donna and Jacob Vermeulen used only approved behavior modification techniques with S.L. and did not hit S.L. with or without any object, spank S.L., or otherwise inflict physical abuse upon him. Although the Vermeulens' license as a foster home was in effect at all times material hereto, it has lapsed. A foster home license is not automatically renewed but rather requires an annual licensing study. Other than "the incident" charged herein the Vermeulens have received no prior complaints from HRS.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is REC0MENDED that a Final Order be entered dismissing with prejudice the Administrative Complaint filed herein and directing that any licensure study performed regarding the renewal or extension of Respondents' license be made omitting therefrom consideration of any of the matters set forth herein. DONE and RECOMMENDED this 19th day of July, 1985 at Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of July,1985. COPIES FURNISHED: Leonard Helfand, Esquire Department of Health and Rehabilitative Services 401 N.W. 2nd Avenue, Suite 1070 Miami, Florida 33128 Thomas J. Walsh, Esquire 590 English Avenue Homestead, Florida 33030 David Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
