The Issue The determinative issue in this cause is whether Petitioners "abused" and "neglected" foster children in their care, as those terms are defined in Sections 39.01(2) and 39.01(45), Florida Statutes (2000). As a result of the alleged abusive neglect, two subsequent issues are raised: (1) whether Petitioners' foster home license should be revoked for the reasons as stated in the Administrative Complaint dated July 20, 2001; and (2) whether Respondent's denial of Petitioners' requests to adopt the "M" sibling and to adopt the "T/S" sibling foster children, based primarily upon the allegations in the Administrative Compliant dated July 20, 2001, as explained in a denial letter dated January 18, 2002, was appropriate.
Findings Of Fact Based upon observation of the witnesses and their demeanor while testifying in person and by taped interviews, the documentary materials received in evidence, stipulations by the parties, evidentiary rulings during the final hearing, and the entire record compiled herein, the following relevant and material facts are found. At all times pertinent to the issues herein, Respondent, the Department of Children and Family Services, was the state agency responsible for receiving and approving applications for foster care licenses and for monitoring, regulating, and if necessary, suspending or revoking foster parent licenses pursuant to Section 409.175, Florida Statutes. At all times pertinent to the issues herein, Respondent, the Department of Children and Family Services, was the state agency responsible for receiving, evaluating, approving or denying applications for adoption of foster children pursuant to Section 63.062, Florida Statutes, and Chapter 65C-16, Florida Administrative Code. Petitioners' Foster Care Licensure History Petitioners are married and are the parents of two biological children. Mrs. Sawyer was reared with foster children and has always desired to become a foster parent. Petitioners were initially licensed by the Agency as foster parents in October of 1986, and six months later on April 20, 1987, Petitioners voluntarily closed their foster home due to Mrs. Sawyer's complications with the pregnancy of their second child. During the above six-month licensed period, Petitioners successfully fostered ten children, the last child was removed by the Agency from the foster home in March 1987. In December 1986, two months after initial licensing, Petitioners were the subject of an abuse report alleging spanking a child. The Agency's investigation concluded that the abuse report was "unfounded,"4 and closure was recommended by the Agency's investigator. On September 7, 1987, the Agency again licensed Petitioners as foster parents. Eight months thereafter, on May 23, 1988, the Agency again closed Petitioners' foster home. On August 10, 1988, three months later, the Agency, for the third time, licensed Petitioners as foster parents. Mrs. Sawyer acknowledged using corporal discipline on a foster child during the 1988 licensure period. As a result of the corporal punishment incident in 1988, the Agency required Petitioners to attended its Model Approach to Partnership in Parenting (MAPP) classes, which Petitioners attended and completed. The 1988 licensure of Petitioners as foster parents was specifically granted for the "T/S" sibling group who, with voluntary permission of their biological parents, had been living with Petitioners for approximately two months before their official placement with Petitioners by the Agency. Since 1988, the Agency has annually renewed Petitioners' foster care license.5 Responding to the requests of the Agency, Petitioners on occasions fostered as many as 16 to 20 foster children. Petitioners' foster home was frequently used by the Agency for unannounced "overnight" foster care, many of which extended into protracted foster care periods. During periods when the Agency's need for foster home beds was pressing, the Agency's rule-of-five was waived by the Agency's District Administrator so that Petitioners could and did house more children.6 The record reflects no evidence of complaints of abuse or any other complaints during the periods the Agency needed and made use of Petitioners' home to foster children. The evidence of record, viewed chronologically, reflects a protracted period of intense investigation of allegations which, if true, were apparently ongoing over a period of months prior to the filing of Abuse Report 2000-198255, the basis of the Agency's intended revocation of Petitioners' foster care license. Petitioners' latest license was issued on August 24, 2000, and was effective until August 24, 2001. This August 24, 2000, foster home license is the subject of the Agency's revocation notice, which states: The revocation is based on the following reasons: Between December 21, 2000 and March 1, 2001, the Department of Children and Families investigated eleven reports of abuse and neglect involving your home. In Florida Abuse Hotline Report 2000-198255[7] it was concluded that there were verified findings of excessive corporal punishment and confinement, bizarre punishment and excessive restraint committed by Cynthia Sawyer towards several foster children in her care. The report also noted several instances of inappropriate physical punishment, which is a violation of the foster parent disciplinary policy. These incidents are considered "an intentional or negligent act materially affecting the health and safety of children in the home or agency" and a violation of the licensing rules promulgated pursuant to section 409.175, Florida Statutes. Section 409.175(8)(b) 1 and 2 Florida Statutes; 65C- 13.010(1)(b)5 Florida Administrative Code. (emphasis added) The Agency's allegations of neglect and abuse revolved around four specific types of disciplinary activities that are alleged to have occurred on or after August 24, 2000, the date the current foster care license was issued, and to have terminated on or before March 1, 2001, the date the Agency removed children from Petitioners' home. The four specific types of disciplinary activities are: (1) excessive corporal punishment and confinement, (2) inappropriate physical punishment, (3) bizarre punishment, and (4) excessive restraints.8 In support of those allegations, the Agency presented the testimonies of several foster children, video- taped interviews of three foster children made in March 2001, approximately one month after removal from Petitioners' home; the testimony of another foster care parent; the testimony of a Guardian Ad Litem; and the testimonies of several of the Agency's employees. Mike Katz, agency employee, prepared the Administrative Complaint but had no personal knowledge of the abuse allegations contained in Abuse Report 2000-198255, which formed the basis for the Administrative Complaint he prepared. Mr. Katz acknowledged that his understanding of the Agency's practice and policy was that "one incident of corporal punishment" did not equate to foster care license revocation. According to Mr. Katz, evaluating corporal punishment allegations requires all factors be taken into consideration and the totality of circumstances be reviewed; the intended result is a fact specific determination for each case of alleged corporal punishment. Kate Kimball's, the Sawyers' family service counselor, testimony was primarily concerned with agency reports dating from December 3, 1996, through the year 2000. Her testimony regarding and relating to matters that occurred prior to December 21, 2000, are not relevant nor material to issues of foster home license denial as stated in the Administrative Complaint that is challenged by Petitioners. However, Ms. Kimball's testimony regarding the Sawyers' life-style during the period she was their case worker is relevant and material to the issue of denial of the Sawyers' application to adopt the "M" children. The record reflects that in 1999, while fostering the "T/S" and the "M" siblings under the Agency's District Administrator's waiver of the rule-of-five policy, Petitioners were given an "Above Satisfactory" evaluation by the assigned foster care case worker, Kim Bryant. Ms. Bryant reported that the Sawyers are "very involved, supportative of the children's extra curricular activities and educational needs; show children much needed attention and affection; children and foster parents seem very fond of each other and there is much improvement with the children educationally and emotionally and they appear to have adjusted well in the home." Ms. Bryant's report is undisputed and credible. One year later, Hotline Report 2000-078274 was filed containing an allegation of medical negligence against Mrs. Sawyer as a result of her attempt to refill a prescribed medication for a foster child in her care after the child had taken all the medication. In this particular instance, the Agency had failed to provided Mrs. Sawyer with the child's medical record when the child was placed in her foster home. This medical negligence allegation was resolved when the case worker assigned to the Sawyers secured from the child's file the physician's prescription refill order. The Hotline Report was closed by the Agency with "No indicators of alleged maltreatment-or abuse/neglect." On June 26, 2000, and after the Sawyers added separate bedrooms and bathrooms for the girls and separate bedrooms and bathrooms for the boys to their home to accommodate 16 children, their case worker, Ms. Kimball, wrote, "It appeared that the Department has continued to utilize their home, as we have had no alternatives." The home study case worker's comments are revealing and reliable. It is reasonable to infer that the Agency was satisfied with the Sawyers' methods of disciplining foster children in their home, when they met the Agency's need for foster beds. However, when the Agency's need for foster beds were apparently met by other resources their prior position of satisfaction with the Sawyers, for reasons not entirely clear from the record, took a sudden 180-degree turn-about from satisfaction to dissatisfaction, within a six-month time period from June 26, 2000, to December 21, 2000. The case worker assigned to the "M" children, Anjanet Stilwell, reported that the Sawyers' foster home was "a wonderful foster home--they were very cooperative and caring." Case worker, Karen Braden, who was in the home twice weekly regarding kids assigned to her, wrote, "Cindy is great! I have no concerns regarding placement of my kids. I truly don't know how she does it!" I find Ms. Stilwell's and Ms. Braden's opinions acceptable and reflective of the Agency's approved satisfactory view of the Sawyers as foster parents for many children who were housed solely by the Agency's waiver of its rule-of-five policy and for its benefit. One foster care referral report regarding the "T/S" children written by case worker Heather Blair was considered at the Adoption Applicant Review Committee (AARC) staffing. In her report, Ms. Blair summarized Psychologist Lisa Gaise's conclusions that: "3 T/S children reported being paddle [sic] and 'the context in which these clear disclosures were made was so natural as to dispel any questions of the veracity of their statements.'" Apparently the AARC staffing considered Ms. Gaise's comments credible in their decision to deny the adoption application. The fact of the matter is that Ms. Blair's statement regarding the "truth" and acceptance of Lisa Gaise's opinion that the child's statement were true, is not accepted for the truth asserted and, therefore, is not credible.9 Bobby Cooper, another agency witness, commenced his investigation of Abuse Report 2000-198255, on December 21, 2000, at 4:00 p.m. Mr. Cooper's investigation consisted entirely of reviewing reports of other agency investigators. Mr. Cooper had no personal knowledge nor had he personally sought independent collaboration of statements contained in the reports he reviewed. His testimony is not credible. Kate Kimball, the case worker assigned to Petitioners' foster home, often made announced and unannounced visits to Petitioners' foster home, as required by Agency policy. Ms. Kimball was in close and constant contact with the foster children and the foster parents during her visits to the home. Ms. Kimball was required to (1) observe the foster children, speak in confidence with each child individually, immediately report any "signs" of abuse or "suspected abuse," and to (4) cause "removal" of a child or children from abusive foster home situations. Ms. Kimball never requested nor caused removal of a child from Petitioners' foster home during the period of December 21, 2000, through March 2001, the period the abuse reports were allegedly "verified." Detective Christi Esquinaldo was assigned to investigate this case by Hillsborough County Sheriff's Department. Her investigation consisted of interviewing foster child L.S., reviewing the abuse reports, and creating a matrix from those reports. The matrix consisted of Detective Esquinaldo's listing the names of children who were alleged to have been subjected to a specific abusive discipline crossed referenced by the names of the children who made the allegations. According to Detective Esquinaldo, L.S. told her that the Sawyers "made children stand in a corner for three to four hours" as punishment, and Lil David was restrained to a chair for "three to four hours." However, during her testimony at the hearing, L.S. denied having made those statements to Detective Esquinaldo. L.S.'s testimony at the final hearing is credible. In closing her investigation, Detective Esquinaldo recommended to the State Attorney's Office the direct filing of a felony charge of Aggravated Child Abuse against the Sawyers. The Hillsborough County State Attorney's Office, citing "numerous inconsistencies in the statements of the children," declined to file any charges against the Sawyers and closed their files on the matter. After reviewing the children's testimonies of record, I am compelled to agree with the Hillsborough County State Attorney Office that the "inconsistencies of the statements of the children" render their collective testimonies unreliable and insufficient to provide a preponderance of evidence necessary to establish a fact. None of the adult witnesses, presented by the Agency, possessed knowledge acquired through collaboration of the children's stories from independent sources and/or their investigations regarding the abuse allegations alleged in the Complaint. The Agency's employees' initial and total acceptance of the children's recollection of time, i.e. as "all day" and "all night," should have, but did not raise reasonable concern regarding each child's ability to differentiate between fantasy and reality and the child's accuracy of recall as well. The children's story-line, that Petitioners forced each of them to walk, to stand in time-outs, to dig holes, to sleep in their beds or do any other activities "all day" or "all night," was testified to as a form of punishment and not discipline for acting up. Accepting as true, accurate, and realistic, their identical versions of four specific experiences from the several children without more does not equate to credible nor collaborative evidence. The testimonies presented by several foster children at this hearing were, at best, confusing, conflicting and contradictory. When asked specific questions about the several forms and methods of discipline, the unanimity of their responses were: stand in the corner "all night," dig holes "all day," walk in circles "all day," and sleep in the bed "all day." The fact that the children's testimonies clustered in a certain position (sibling groups wanting to stay together as a group and those sibling groups wanting to be moved to another foster home as a group gave almost identical answers to questions relating to specific disciplines) does not mean nor imply that their testimonies were necessarily accurate, realistic, or true. In fact, the record reflects that several of the testimonies initially given by the children to the Agency were in conflict with their testimonies subsequently given to the Agency representatives and testimony given at the final hearing. Considering the children's testimonies in the context of the children's ages; the children's physical sizes; the physical improbability of a small child actually squatting, with knees bent, against a wall with both arms held out in front of the body or held out to the sides of their bodies all day; and their description of time as "all day" and "all-night," rendered their collective testimonies unrealistic, unreliable and, therefore, not credible. Steve Barber, Petitioners' pastor and the one who has interfaced with the foster children, based upon his experience as a former high school football coach, gave undisputed testimony that the physical size and stature of the young children made it physically impossible for any of them to "stand, squat, dig or walk in circles, all day." Based upon the testimony of Mr. Barber and the unrealistic testimonies of the several children, Respondent has failed to prove that Petitioners committed "excesses" in administering policy discipline, by imposing time-outs, separation from other children, grounding, loss of privileges, and by assigning other chores. I find that the cumulative testimonies of the foster children found in the Agency reports in evidence and of those children who testified at the final hearing unreliable, inconsistent, devoid of details, physically impossible in most instances and, therefore, insufficient to establish by a preponderance that the Sawyers subjected them to: (1) excessive corporal punishment and confinement, (2) inappropriate physical punishment, (3) bizarre punishment, and (4) use of excessive restraints as punishment as alleged in the Administrative Complaint filed in this cause. Of the three video-taped interviews reviewed by the undersigned, the interview of D.I. revealed a reliable and detailed account of the daily life and activities of the foster children in the Sawyers' home from an articulate child with personal knowledge and accurate recall of events. First, D.I. was in the Sawyers' foster care for a period of seven months. Second, D.I. appeared to be bright, intelligent, articulate, straight-forward, and he was definite and clear in his responses to questions asked by the Agency's spokesperson. Third, D.I.'s memory of details was complete, uncompromising, realistic, and reasonable. Fourth, D.I. acknowledged that his possibility of being reunited with his biological mother was nonexistent, and he would probably be in foster care until his majority, if not adopted, preferably by the Sawyers. Fifth, he is familiar with and aware of foster children, individually and as sibling groups "working the foster care system for their desired ends by telling stories." During his seven months' stay in foster care with the Sawyers, D.I. testified that he never saw nor was he made aware by other children of any child punished by the Sawyers in the form of being forced to stand in time-out "all day," forced to dig holes "all night," or forced to walk in circles "all day." D.I. knew that Lil L.S. pooped in her pants and smeared the poop over the walls of the foster care residence. He knows this because he was one of the older children who volunteered to clean the poop off the walls; he remembers these incidents because the walls had "white spots" where the cleaning solutions were used. He also remembered because Mrs. Sawyer would put white powder on the bedroom floor leading from Lil L.S.'s room to other parts of the house. In the morning when Lil L.S. was awaken and asked about poop on the walls, she would blame other children, but her foot prints would prove contradiction of the story of not having gotten out of bed during the night. According to D.I., Lil L.S. was never "hosed down outside" the house after pooping on herself. Each time Lil L.S. pooped on herself, Mrs. Cindy would require her to go into her bathroom10 and bathe herself. When asked about household chores and work around the house as a form of punishment, D.I. answered that older children would be offered the opportunity to "work outside" with Mr. Sawyer on "things around the house," only if that child wanted to work outside. If not, the child was given the option to stay outside and play or to go inside and watch T.V., play games, or do other things. D.I. was emphatic that the opportunity to do other things was made available to each child only after that child completed his or her homework. Homework was always first, and some children got in trouble because of not doing or completing their homework. According to D.I., the younger children who played outside would customarily play in the round-about driveway, the yard, and on the Jungle Jim play set. The older children would customarily do other things. D.I.'s examples of "doing things around the house" were: helping Mr. Sawyer work on his truck; putting together and/or repairing the Jungle Jim swing-slide play set; helping to dig a trench line to lay pipe for the new water heater connection; tending to and caring for the animals; planting trees and stuff; and painting and building additional bathrooms and bedrooms onto the house. According to D.I., all outside activities were made available to any children who wished to participate in them instead of playing among themselves. When asked, D.I. was empathic in his answer that no child, "as a form of punishment," was forced to assist Mr. Sawyer in "doing things around the house," if they wanted to help they could, if not, then other activities were available and that no child was handcuffed nor had he seen any (metal) handcuffs at the Sawyers' house, save his pair of red plastic toy handcuffs that came with a toy set the Sawyers gave him. D.I., from observation, knew Lil David to be self-mutilating.11 D.I. recalls that "Lil David would sometimes just pick himself to make himself bleed." During his seven-month stay and on more than one occasion, in passing, D.I. would see Lil David in bed at night with velcro restraints on his wrists and the bed to stop him from picking himself and making himself bleed. "Mrs. Cindy did this to keep Lil David from picking himself when he was asleep."12 Regarding meal times and meals at Mrs. Cindy's, D.I. stated that all the children ate the same meal at the same time "cause there was so many of us and Mrs. Cindy had no time for separate meals and we [older children] helped to feed the young children, we did help." When asked about peanut butter sandwiches as a form of punishment, D.I. responded, "Those children who had been bad or were in time-out at mealtime were separated from the other children and given peanut butter sandwiches to eat while in their time-outs. But Mrs. Cindy would say to them 'say you are sorry and you can join us.'" He never saw nor knew of a child in time-out (against the wall) for "hours." The longest time-out he could recall was about "20 minutes," and that was because the child was "acting up" in the time-out and had additional time added to the time-out. D.I. was familiar with the "T/S" and (other) siblings. He knew from personal experience in foster care that older siblings would instruct their younger siblings on all matters: what to say, when to say it, how to act, and how to act up. D.I. was personally familiar with "foster homes" and the means and methods of "getting out of one" and "staying together" as a sibling group and getting into another as a group. When asked about "corporal punishment" i.e. spanking with a wooden paddle and/or slapping with hands, D.I. testified that during his seven-month stay, he knew of no child to have gotten spanked with a wood paddle. "I never saw a wood paddle." Regarding "getting slapped by Mrs. Cindy" as punishment, D.I. answered that Ms. Cindy would "tap" you on the back of the head, butt, or shoulder "to get your attention, like if she was talking to you and you were watching T.V. and not answering her but she never slapped any of us for punishment." This method of getting one child's attention by touching is reasonable when considered in the context of the Agency's waiver of its rule-of- five policy so as to place as many as 16 to 20 children in the Sawyers' foster care home. 13 The video testimony of D.I. is accurate, detailed, reasonable, realistic, based upon his personal knowledge, undisputed and, therefore, credible. Based in part upon the video testimony of D.I., Respondent has failed to establish by a preponderance of evidence that the Sawyers subjected a foster child in their care to: (1) excessive corporal punishment and confinement, (2) inappropriate physical punishment, (3) bizarre punishment, and (4) use of excessive restraints for the time period alleged in the Administrative Complaint. The Sawyers' admitted use of velcro restraints on Lil David was neither excessive, punitive nor disciplinary, but rather was for Lil David's protection from harming himself. The Sawyers' used velcro restraints on Lil David during the day only when he was in time-out and sitting in a small rocking chair and during the night when he was put to bed. The evidence of record by testimonies of virtually every witnesses who knew Lil David knew him to be a self-mutilator. The use of restraints is an acceptable, preventative method for protection in this situation. The record contains no evidence that the Agency provided the Sawyers with an evaluation report of Lil David upon his placement nor during his stay within their foster home. Lil David's medical report would have advised the Sawyers of Lil David's self-mutilation problem. It is a reasonable assumption that had the Agency provided Lil David's medical records, the Sawyers would have been alerted to Lil David's self-mutilation problem and would have had the benefit of the Agency's instructions regarding care and protection for Lil David's problem of self-mutilation. The Sawyers' admitted use of velcro restraints reflects a caring and sincere effort of the foster parents to protect the child from hurting himself. In the absence of information from the Agency regarding Lil David's condition, the Sawyers' use of an acceptable, safe and preventative method of care for this particular problem reflects their efforts to comply with the "spirit" of the rules regarding foster parent responsibilities. The record contains no evidence that the Sawyers' use of velcro restraints to prevent Lil David's self- mutilation was "willfully harmful" or "neglect" or an "abusive" act of intentional punishment. Bobby Cooper's, child protection investigator, reported findings and conclusions were based entirely upon statements provided by individuals he interviewed. The record contains no evidence of collaboration to substantiate testimonies of the children. Therefore, Mr. Cooper's testimony is hearsay without support and therefore, not credible. Finally, consideration is given to what is not in evidence. First, the record in this case contains no evidence of a child alleged to have suffered ongoing neglect and abuse in the form of excessive, bizarre,14 and inappropriate punishment, or to have borne body marks or bruises resulting from the alleged treatment by the Sawyers. Second, the record in this case contains no evidence of a Sawyer-housed foster child to have suffered "physical, mental or emotional injury" as the result of the alleged negligent and abusive treatment. Third, the record contains no evidence from which it could be inferred that a foster child removed from Petitioners' home suffered a "discernible and substantial impairment in the ability to function within the normal range of performance and behavior" as a direct result of the alleged abusive discipline.15 The evidence of record supports a reasonable conclusion that Mrs. Sawyer was proactive in seeking the assistance of local politicians and state officials to accomplish her apparent goal of responsive and exceptional services from the Department for her foster children. It is undisputed that the Sawyers, with the advice and consent of the Department, had more foster children than was reasonable to expect only two adults to provide a minimal of custodial care. Permitting the Sawyers to house as many as 16 to 20 foster children, plus their two biological children, at any point in time, was permissive and self serving by the Department and was overreaching acceptance by the Sawyers. It is a reasonable inference that in this case both the Department and the Sawyers engaged in a mutual course of conduct to satisfy their respective needs and desires. When the mutually beneficial relationship came to a close, a reversal of opinions and recommendations from the Department regarding the Sawyers occurred. The Sawyers, who had been described by the Department as "unbelievable foster parents," became merely unbelievable when confronted with and evaluated by conflicting stories of 14 foster children removed from their home. Denial of Adoption Application for the M sibling group Turning to evidence in the record regarding the denial of Petitioners' application to adopt the four "M" siblings, the fact that some animosity existed between Ms. Gains16 and Mrs. Sawyer, became readily apparent during Ms. Gains' testimony. The existence of animosity was further confirmed by Ms. Gains' detailed chronology of alleged abusive acts and omissions by Mrs. Sawyer over a period in excess of one year. When answering questions asked by the Agency's representative regarding Ms. Gains' statements and opinion of Mrs. Sawyer, D.I. answered: "She [sic] said handcuffs and other things about Mrs. Cindy so as to get kids moved out of Mrs. Cindy's house to her house." Based upon D.I. testimony above, Ms. Gains' testimony given at the hearing and her written report in evidence is biased and unreliable. In the evaluation and review of Petitioners' adoption request, Respondent appropriately engaged in a holistic evaluation of all abuse reports filed, investigative reports, personal opinions, and comments from Department employees, community members and other foster parents, dating from as early as 1986 to the date of the adoption denial. Respondent, in reevaluation of Petitioners' adoption request for the "M" children, should hereinafter be guided by the Findings of Fact herein that allegations of excessive discipline as contained in the Administrative Compliant herein were not proven by the testimonies of the Agency's witnesses and documentary evidence. Therefore, allegations found in Abuse Report 2000-198255 reported or alleged to have occurred within the time period of December 21, 2000, through March 1, 2001, shall not be considered by the Agency in its reevaluation of the Sawyers' application to adopt the "M" siblings; being mindful that the "M" siblings' desire to be adopted by the Sawyers is in the "M" child(ren)'s best interest.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order granting renewal of Petitioners' Foster Care License. It is further RECOMMENDED, that in accord with the expressed desires of the "M" siblings to be adopted by Petitioners, that the Department enter a final order granting Petitioners' application to adopt the "M" siblings. DONE AND ENTERED this 13th day of November, 2002, in Tallahassee, Leon County, Florida. FRED L. BUCKINE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of November, 2002.
Findings Of Fact Respondents have cared for foster children for some twenty years. In November or December of 1975, they began with Christian Youth Care, Inc. (CYC), a foster home in Zephyrhills founded under the auspices of the First Baptist Church of Zephyrhills. Since then small groups of adolescent girls have lived with respondents and their teenage daughter, Dawn. In all, some 80 children have lived at CYC since respondents have had charge of the home. In July of 1977, petitioner placed June Holmes, who is deaf and dumb, with respondents. After June had been with the Houghs for two weeks or so, Lillian Parsons, a social worker in petitioner's employ, told Mrs. Hough that June should be wearing a hearing aid. June did not want to wear a hearing aid. She was also disappointed that Mrs. Hough would not take her to Daytona Beach; she became very upset, wielded a straightened safety pen and started knocking things off bureaus. When Mr. Hough served as a medical technician in the armed forces, unruly patients were sometimes wrapped in blankets. Perhaps remembering this experience, he enlisted Mrs. Hough in wrestling June to the floor, wrapping her in a blanket and securing the blanket with three belts. In the process, Mr. Hough said to June, "See how mad you can get." These events caused concern among the other children living in the home, who gathered to watch and, at respondents' suggestion, to say prayers. Mrs. Hough told June that she loved her. After June had lain bound in this fashion for 45 minutes, respondents released her. The following day Mrs. Hough called Mrs. Parsons to report the incident and to ask that June be placed in another home. Mrs. Parsons expressed no disapproval of respondents' method of restraining June nor did she tell them not to do it again. June remained with respondents until she left for boarding school in St. Augustine. When June returned to the Houghs from school on Easter vacation 1978, she wanted a new pair of shoes that cost $24.95. Respondents bought her a different pair instead. Easter morning June wanted to wear her old shoes, not her new shoes. This caused an argument. Mrs. Hough stayed home with June while Mr. Hough took the others to church. When Mrs. Hough began packing June's clothes into a suitcase, June was "worried that [respondents] would move [her] out." Deposition of June Holmes, p. 5. She walked outside and sat under a tree near the road. Mrs. Hough telephoned her husband and summoned him home from church. With the help of a deputy sheriff brandishing handcuffs, respondents coaxed June into their van and drove her up the driveway to their home. At first she refused to leave the van, so respondents went inside without her. When June eventually went inside, there was another confrontation. Mr. Hough wrestled June to the floor and sent Mrs. Hough for a blanket. After respondents wrapped June in the blanket and secured it with belts, Mr. Hough set off to retrieve the children he had left at church. After Mr. Hough returned with the other children, respondents unwrapped June and there was an Easter egg hunt. The next day Mrs. Hough called petitioner's offices in New Port Richey, then drove June to New Port Richey and left her there, because she wanted no more to do with her. When Mrs. Parsons learned that respondents had wrapped June in a blanket a second time, she asked to be relieved of responsibility for June. Eventually David J. Schultz, at the time a child welfare social worker in petitioner's employ, assumed responsibility for June; and June was again placed with respondents. Mr. and Mrs. Hough frequently communicated with guidance counselors and teachers at the schools children in their care attended. They made six visits to talk about Evelyn Ciacelli's progress with Ricky Rowell, guidance counselor at Woodland Elementary School in Zephryhills, and spoke to him on the telephone about Evelyn on several other occasions. Disappointed in Evelyn's progress with her homework one night, Mr. Hough picked her up and shook her. On another occasion, Evelyn and her roommate were wrestling in their room after they had been sent to bed. Mr. Hough heard them from the kitchen, walked into their bedroom with a spatula in his hand, and gave Evelyn, who was wearing a bathrobe over her nightgown, a swat on the rear with the spatula. On November 20, 1978, David J. Schultz left Petitioner's employ. He subsequently went to work for a corporation controlled by respondents and began living in their home. He lived there on December 13, 1978. On December 13, 1978, Bonnie Blair McKenzie, then employed by petitioner as a community youth leader, picked up Cindy Spickelmier at a shelter home in Dade City and drove her to respondents' home. Cindy, a 14 year old, was at the shelter home after having run away from another foster home, the Newmans'. She had lived with respondents previously and David Schultz also knew her. Shortly after Cindy's arrival, David Schultz was talking to her in the Houghs' living room, where she was sitting on a couch, crying. Also present were Mr. Hough, Ms. McKenzie, Nancy Newman, the foster mother who had previously had custody of Cindy, and Ed Springer, then the social worker in petitioner's employ responsible for Cindy's placement. Angry because Cindy was ignoring him, David Schultz grabbed the hair of her head, jerked her up into a standing position, had her bend over and lean against a desk for support, and struck her buttocks with a wooden paddle an inch thick. He administered the first blow with such force that Ms. Newman was frightened and Ms. McKenzie was "horrified and devastated." (T.52). Cindy fell to her knees, hysterical. Less forcefully, David Schultz struck her buttocks a second time. At the hearing Mr. Hough testified that: after Dave gave her the swats she sat back down and she was a new child. We were able to communicate with her and we thought we were really making good progress and being able to work with the child. That was the purpose of the new program and of course we were trying to set up parameters that would be beneficial to the child. (T.233). Notwithstanding this perceived improvement in Cindy's deportment, Ed Springer gave Cindy another spanking 30 or 45 minutes after David Schultz had finished. In the presence of Mr. and Mrs. Hough, and Mr. Schultz, Ed Springer struck Cindy five times on the buttocks with the same wooden paddle David Schultz had used, as punishment for running away from the Newmans' house. Later, on the evening of December 13, 1978, Cindy ran away from the Houghs'. She ended up at her mother's house where she spent the night. The next day her mother took her to the Pasco County Sheriff's Department. There Fay Wilbur an investigator for the Sheriff's Department, took photographs of Cindy's badly bruised buttocks. Petitioner's exhibits 3, 4 and 5. On the following day, December 15, 1978, Dr. Lena Ayala, a pediatrician, examined Cindy. She found large "[v]ery tender, painful" (T.55) hematomas covering the whole area of Cindy's buttocks. If she had seen a child in the custody of its natural parents in that condition, Dr. Ayala testified, she would have reported the matter to the child abuse registry. Petitioner discharged Ed Springer because of the beating he had administered to Cindy Spickelmier. Petitioner publishes a manual with a chapter entitled "Foster Family Group Homes for Dependent youth," Petitioner's exhibit No. 8. In part, the manual provides: 8.4.4 Unacceptable disciplinary approaches include: a. Corporal punishment--slapping, kicking, hitting, etc. * * * Humiliation, ridicule, sarcasm, shaming in front of the group or alone. Deprivation of essential needs such as food, sleep, or parental visits. Petitioner's exhibit No. 8, p.9. Although petitioner sometimes furnished foster group home licensees copies of its manuals, petitioner's files do not indicate that either Mr. or Mrs. Hough ever received a copy. Respondents wore unaware of the manual's contents on December 13, 1978; and David Schultz was also unaware of any policy against corporal punishment of foster group home children. Lorraine Cash, a foster mother in Pasco County, never spanked any foster child in her care over the age of eleven years. On the other hand, Henry Arnett, another foster parent in Pasco County, used corporal punishment in disciplining teen aged foster boys. He and his wife, Doris, were named foster parents of the year in 1978. On December 14, 1978, Joanne Wall telephoned respondents on behalf of petitioner and told Mr. Hough that David Schultz should be barred from their premises. When Mr. Hough protested that David Schultz lived on the premises, Ms. Wall asked Mr. Hough to keep David Schultz from working with the girls, which Mr. Hough agreed to do. On December 18, 1978, respondents submitted an application to petitioner for a child care center license, an application on which they had begun work considerably before December 13, 1978. Discouraged by the pace at which this application was being considered and by what respondents perceived as unfairness on the part of some of petitioner's personnel, Mr. Hough on February 15, 1979, told William Laing, a manager for petitioner, that he wanted all the foster children but two removed by five o'clock the following day, a Friday. Even though the agreement between petitioner and respondents called for two weeks' notice by the foster parents, petitioner's exhibit No. 6, Mr. Hough was unwilling to wait so long. Petitioner arranged to pick up all the foster children in respondents' care on the following day. Some of the children had not been told they would be leaving the Houghs' home. Respondents own improved real estate from which they derive rental income. In addition, CYC, funded by the First Baptist Church of Zephyrhills, paid respondents a salary. Occasionally, Mr. Hough worked outside the home. Pasco County contributed to the costs of caring for foster children. Respondents did not need moneys petitioner paid them on behalf of the children for their own personal purposes.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That, on the next anniversary of the date of respondents' original foster group home license, petitioner discontinue respondents' license for a period of one year. DONE and ENTERED this 19th day of June, 1979, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Barbara McPherson, Esquire Post Office Box 5046 Clearwater, Florida 33518 Robert L. Williams, Esquire Post Office Box 443 Dade City, Florida 33525
The Issue The issue in this case is whether Petitioners should be issued a family foster home license.
Findings Of Fact Based upon the testimony, exhibits, and stipulated facts in the Joint Stipulation, the following Findings of Fact are made: Parties and Process Petitioners, who are husband and wife, submitted an application for licensure as a family foster home. Although this was an application for initial licensure, Petitioners were previously licensed as a foster home from August 2013 to October 2019.1 The Department is the state agency responsible for licensing foster care parents and foster homes, pursuant to section 409.175, Florida Statutes, and Florida Administrative Code Chapter 65C-45. Petitioners voluntarily relinquished their foster home license on or about October 28, 2019, around the time two female foster children, S.W. and H.C.S., were removed from their care. It is unclear whether the children were removed because of an abuse investigation related to H.C.S., or whether they were removed because Petitioners closed their home to foster children. Regardless, Mrs. Gilio testified that they let their license lapse because they needed a break after fostering H.C.S. The Department administers foster care licensing by contracting with third-party private entities. In Circuit 13, where Petitioners are located, the Department contracted with Eckerd Community Alternatives, doing business as Eckerd Connects (Eckerd), to be the agency responsible for facilitating foster care licensing. Eckerd has subcontracted with Children's Home Network (CHN) to facilitate foster care licensing. 1 Petitioners had previously been denied a foster care license in 2009. At the time relevant to Petitioners, the Department used the "attestation" model of foster home licensing. In this model, a private licensing agency with whom the Department has contracted will conduct a home study on the foster home applicants and attest to the applicants' fitness to be licensed. The Department does not have the discretion to deny the license once the licensing agency has attested to the appropriateness of the applicants, except if they have been named as caregivers in three or more abuse reports within five years. If there are such abuse reports, the Department is required to review those reports and make a final decision regarding the application. There is no requirement that the reports result in a finding of actual abuse for them to be reviewed by the Department.2 Although it is unclear when Petitioners submitted their application for the foster care license in this case, sometime in late 2019, CHN conducted and compiled a Unified Home Study (home study), which included Petitioners' background screening; previous reports of abuse, abandonment, or neglect involving the applicants, and references from all adult children. The home study was reviewed at a meeting on December 19, 2019, by Eckerd, through the Committee. The Committee considered the application, home study, and licensing packet and heard from various agency staff. Petitioners were also allowed to voice comments and concerns at this meeting. Had the Committee approved the application, it would have been sent to the Department along with an attestation that stated the foster home meets all requirements for licensure and a foster home license is issued by the Department. However, the Committee unanimously voted not to recommend approval of a foster home license to Petitioners. 2 The categories of findings for an abuse report are "no indicator," "not substantiated," and "verified." "No indicator" means there was no credible evidence to support a determination of abuse. "Not substantiated" means there is evidence, but it does not meet the standard of being a preponderance to support that a specific harm is the result of abuse. "Verified" means that there is a preponderance of credible evidence which results in a determination that a specific harm was a result of abuse. Frank Prado, Suncoast Regional Managing Director for the Department, ultimately decided to deny Petitioners' application for a family foster home license due to their prior parenting experiences, the multiple abuse reports regarding their home, and the recommendation of the Committee. Mr. Prado expressed concern about the nature of the abuse reports and Petitioners' admission that they used corporal punishment on a child they adopted from the foster care system in the presence of other foster children. Petitioners' Parenting History Petitioners have seven children: one is the biological son of Mr. Gilio; another is the biological son of Mrs. Gilio; and five were adopted through the foster care system in Florida. Of these seven children, six are now adults. Three of the adopted children, Jay, Sean, and Jameson, are biological brothers who Petitioners adopted in 2001. Shawna, who was adopted around 2003, is the only adopted daughter. The Petitioners' one minor child, H.G., is a nine-year-old boy and the only child who resides in their home. H.G. suffers from oppositional defiance disorder. Petitioners admitted they adopted Shawna after there had been allegations of inappropriate behavior made against Jay, by a young girl who lived next door to Petitioners. Later, while they were living with Petitioners, Jay, Sean, and Jameson were arrested for sexually abusing Shawna at different times. As a result, one or more of the sons were court-ordered to not be around Shawna, and the other brothers were required to undergo treatment and never returned to Petitioners' home. During the hearing, both Petitioners seem to blame Shawna, who was nine years old when the sexual abuse by Jay in their home allegedly began, for disrupting their home. They accused her of being "not remorseful" and "highly sexualized." Regarding the abuse by Sean and Jameson, which occurred when Shawna was approximately 12 years old, Mr. Gilio stated Shawna thought it was okay to have sex with boys, and it was "hard to watch every minute of the day if they're, you know, having sex." When Shawna was about 19 years old, she filed a "Petition for Injunction for Protection Against Domestic Violence" against Mr. Gilio in circuit court. The Petition outlined allegations of past sexual comments and inappropriate disciplinary behavior from 2007 to 2012, while she lived with Petitioners. Mr. Gilio denied at the hearing having any knowledge about the Petition against him, but admitted he made comments about Shawna's breasts. As part of the application and home study process, the CHN collected references from Petitioners' former foster children and adult children. Shawna (Petitioners' only adopted daughter) gave them a negative reference and specifically stated she would not want female foster children to live with Petitioners. Reports of Abuse Petitioners were involved in 24 abuse reports during their time of licensure between 2013 and 2019. During the past five years, Petitioners were named as either alleged perpetrators or caregivers responsible in eight reports that were made to the Florida Child Abuse Hotline (Hotline). Of those eight reports, five of them named Mr. Gilio as the alleged perpetrator causing a physical injury, one report named Mr. Gilio as the caregiver responsible for a burn on a foster child, and one report named Mr. Gilio as an alleged perpetrator of sexual abuse against a foster child. Mrs. Gilio was named as an alleged perpetrator of asphyxiation as to a foster child. Seven of the reports in the last five years against Petitioners were closed with no indicators of abuse. One of the abuse reports was closed with a "not substantiated" finding of physical injury. In this report, Mr. Gilio was the alleged perpetrator and the victim was H.G., Petitioners' minor adopted son. Additionally, after Petitioners let their foster license lapse in October 2019, a subsequent report was made against Mr. Gilio for improper contact with a former foster daughter. This incident was discussed at the Committee meeting, but it was unclear if this allegation was ever investigated. Corporal Punishment According to the Department's rules, discussed below, foster parents are forbidden to engage in corporal punishments of any kind. In 2019, there were two reports alleging Mr. Gilio of causing physical injury by corporal punishment on H.G. At the time, there were other foster children in the household. Technically, Mr. Gilio was allowed to use corporal punishment on H.G. because he was no longer a foster child and had been adopted from foster care. If a parent uses corporal punishment on a child, there can be no findings of abuse unless the child suffered temporary or permanent disfigurement. However, foster care providers are not permitted to use corporal punishment. More than one witness at the hearing had concerns about the use of corporal punishment against H.G. because of his operational defiance disorder and because other foster children (who may have been victims of physical abuse) were in the household. Brendale Perkins, who is a foster parent herself and serves on the Hillsborough County Family Partnership Alliance, an organization that supports licensed foster parents, testified she witnessed Mr. Gilio treating a foster child in his care roughly. At the time, she was concerned because this was not the way children in foster care (who may have previously been victims of abuse) should be treated. She did not, however, report it to any authorities. The Department established through testimony that the policy against using corporal punishment is taught to all potential foster families. Mr. Gilio, however, denied ever being instructed not to use corporal punishment against foster children or while foster children were in the home. He also claimed that H.G.'s therapist had never recommended any specific punishment techniques. The undersigned finds Mr. Gilio's testimony not credible. Cooperation with Fostering Partners The Department established that decisions regarding foster children are made within a "system of care" which includes input from case managers, guardian ad litem (GAL), and support service providers. The relationship between Petitioners and others working as part of this system during the time of fostering was not ideal; it was described by witnesses as "tense" and "disgruntled." One witness, a supervisor at CHN, testified Mr. Gilio was not receptive or flexible when partnering with other agencies, and was not always open to providing information when questioned. As an example, Petitioners fired a therapist without consulting with the CHN staff or the GAL for the child. At the final hearing, Mr. Gilio continued to claim he did nothing wrong by not consulting with others in the system regarding this decision. Kristin Edwardson, a child protection investigator for the Hillsborough County Sheriff's Office, was tasked with investigating the reports of abuse and neglect against Petitioners that had been reported to the Hotline. She testified she was concerned with the level of cooperation they provided her and other investigators. Although they ultimately would cooperate, Petitioners made it difficult for the investigators and would often "push back" and make the situation more stressful. She described Mr. Gilio as being disrespectful, belittling, and dismissive of her. Licensing Review Committee On December 19, 2020, the Committee, made up of eight individuals, was convened to review Petitioners' application for a foster home license. When determining whether a family should receive a foster home license, the Committee is to evaluate the applicants' background, parenting experience, references from community partners, and the family's openness and willingness to partner. Sheila DelCastillo, a regional trainer with the GAL program, was a Committee member. She had prior knowledge of Petitioners from a report that a foster child's room in Petitioners' home smelled strongly of urine during a home visit and that GAL staff had found a prescription bottle beside the child’s bed that belonged to Mr. Gilio. With regards to Petitioners' application, she read the licensing review packet and home study that contained numerous abuse reports. Ms. DelCastillo was concerned about the 24 abuse reports Petitioners’ received during their time of licensure, the negative reference from Shawna, their use of corporal punishment on H.G., and Petitioners' downplaying of the events that led to multiple abuse reports. Michelle Costley, a licensing director with CHN in charge of level 2 traditional foster homes, also served on the Committee. Ms. Costley has 14 years of experience, with seven of those years spent in foster care licensing. As director of licensing, Ms. Costley was concerned about the number of abuse reports received regarding Petitioners; Mr. Gilio's inability to be open and flexible when working in partnership with other agencies; and the needs of Petitioners' child, H.G. She was also concerned about Petitioners' decision to fire a therapist of a foster child without consulting the GAL or the other individuals involved with that child. Regarding the alleged abuse, Ms. Costley was concerned that most of the reports regarding Petitioners involved allegations of physical abuse, inappropriate touch of a sexual nature, or sexual abuse, with most alleged victims being younger than eight years old. She explained that even though these reports could not be "verified," these types of allegations are harder to establish because testimony by children of that age often is unreliable and there usually must be evidence of physical injury, which no longer is present by the time the alleged abuse is investigated. Ms. Perkins also served on the Committee. Ms. Perkins served as a foster parent mentor, working with foster parents to help them build co- parenting strategies and navigate the system of care. She has been a licensed foster parent for 13 years and has adopted 11 children from foster care. As stated earlier, she was familiar with Petitioners from the Hillsborough County Family Partnership Alliance meetings. Ms. Perkins was concerned with the number of abuse reports with similar allegations, but different victims. She also discussed Petitioners' use of corporal punishment, noting that they could have been using verbal de-escalation methods instead of corporal punishment due to the traumatic histories of many foster care children. Ms. Edwardson also served on the Committee. In addition to her personal interactions with Petitioners, Ms. Edwardson was concerned about the totality of the information presented to the Committee regarding the abuse reports and Mr. Gilio's lack of cooperation. She noted that although they were not substantiated, the number and nature of the reports related to young children were of concern. Based on the Committee notes and transcript of the meeting, Petitioners were allowed to respond to the Committee's questions at the December 2019 meeting. They argued that none of the abuse reports were proven true and any injuries were not their fault. They seemed more concerned about who made the abuse reports and why the abuse reports were called in than whether the foster children were protected in their care. For example, although Mr. Gilio admitted to hitting H.G. with a stick twice as big as a pencil, he denied any bruising was caused by the stick. A report of a burn on another child was explained by Mr. Gilio as an accident that occurred while he was teaching her how to iron; he could not understand why this was reported as possible abuse. Ms. Gilio explained that H.C.S. was a very active child which resulted in her needing stitches and requiring restraint. After hearing from Petitioners, the Committee members discussed their concerns that Petitioners were not forthcoming about the various abuse incidents, and would not take responsibility for any of the injuries or issues raised by the abuse reports. All eight members voted to not move Petitioners' application forward.
Recommendation Based on the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Department of Children and Families denying a family foster home license to Petitioners, Mary and James Gilio. DONE AND ENTERED this 9th day of November, 2020, in Tallahassee, Leon County, Florida. S HETAL DESAI Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of November, 2020. COPIES FURNISHED: Anthony Duran, Esquire Tison Law Group 9312 North Armenia Avenue Tampa, Florida 33612 (eServed) Deanne Cherisse Fields, Esquire Department of Children and Families 9393 North Florida Avenue Tampa, Florida 33612 (eServed) Lacey Kantor, Esquire Department of Children and Families Building 2, Room 204Z 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed) Javier A. Enriquez, General Counsel Department of Children and Families Building 2, Room 204F 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed) Chad Poppell, Secretary Department of Children and Families Building 1, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed)
Findings Of Fact The Petitioners R.G. and M.G. were licensed as foster parents and their home as a Children Youth and Families foster home for dependent children at all times pertinent hereto. The Respondent is an agency of the state of Florida charged with licensure of foster parents and foster homes and with regulating and enforcing the standards of care of children placed in such foster homes as dependent children. This dispute apparently arose on or about April 18, 1990 when M.G., the foster mother, brought the M. children to the Department of Health and Rehabilitative Services office on that date to talk with a foster care counselor about problems experienced with the M. children in her home. Apparently the visit to the Department's office arose because M.G. had discovered that one of the children had allegedly stolen one or more articles from a local store in the community, or believed that she had, and was seeking the advise and council of Department's representative concerning the manner in which to address that perceived problem. During the course of that encounter with the Department's representative the M. children or some of them related incidents occurring in the home in the past while they were placed in the custody of the Petitioners which they felt involved or constituted mistreatment by M.G. Upon learning of these reports Department personnel removed the children from the G. home on April 18, 1990. No other children have been placed by the Respondent in the G. foster home since that time. Michelle M. testified that Petitioner M.G. called Marie M. a bitch, a whore and a slut on one occasion and gave Marie M. "the bird" (an obscene gesture). Michelle M. testified that M.G. called Marie M. a slut and stated that "she's just going to grow up to be a whore." Apparently Marie M. and Michelle M. had reported that M.G. called Marie M. a whore when Marie M. told M.G. about borrowing fifty cents from a boy at school. At the hearing, however, Marie M. testified that she borrowed fifty cents from a boy at school and that when M.G. learned of it she said "it would make her look like a whore." Mandy M. testified that M.G. thought that Mandy had called her "a faggot" and that, instead, she told her that she had called her sister that name but that M.G. did not believe her and sent her to her room and shoved her into the room whereupon she fell and hit herself against the bed or bedpost by accident. Michelle M. testified that on a church hayride a boy threw hay and hit M.G. in the face whereupon, thinking Michelle M. had done it, that M.G. hit Michelle on the leg with a flashlight. Mandy M. testified that M.G. hit Michelle on the leg with a flashlight, but her testimony revealed she knew nothing of that incident and her description of it was related to her by one of her sisters. Additionally, Marie M. testified that she saw M.G. pick up an infant by one arm from a crib and scold it for crying as she was picking the infant up to hold the infant in her arms. Michelle and Marie M. testified that M.G. held Marie M.'s mouth open and shoved red hot sauce into her mouth with a spoon as punishment for some perceived infraction. Marie M. testified that M.G. threw hot tea or hot water on the face of Marie M. while the child was asleep on a couch. M.G. categorically denies all the allegations made by the girls, the foster children in question referenced above. She denies ever making obscene gestures, ("the bird"), at any of the girls and denies calling them names such as bitch, slut or whore. She concedes that she may have admonished them or one of them about not "acting like a slut or a whore," etc. She also denies ever having administered hot sauce to any of the children. She said that on one occasion she gave Mandy some mustard on a teaspoon when the child inquired what it tasted like because she had never tasted mustard. She gave her a small amount of it just to show her how it tasted. She denies ever throwing hot tea or hot water on the face of any of the children and denies causing any of the children injury, specifically concerning the bedroom incident when the child apparently bruised her back falling against the bed. M.G. did use confinement for brief periods in a child's room as a form of discipline for inappropriate conduct in the home. She also denies hitting Michelle M. on the leg with a flashlight during the church hayride. In fact due to her position in the haywagon at the other end of the wagon from the child in question, it would have been impossible for her to reach over and hit her with a flashlight and that incident did not occur. M.G.'s testimony concerning the children's conduct and family life in the home with the children is to the effect that the older two girls, particularly the oldest, Michelle M., had a tendency to lie in order to "get their way"; that the girls were unruly and that they, particularly Michelle, used their relationship with HRS to try to intimidate the foster parents, particularly M.G. They had threatened to report M.G. for improper behavior towards the children in the home. The children resented the foster parents authority. Her testimony describes in detail, as do the exhibits submitted by the Petitioners, consisting of the monthly reports M.G. made to HRS, the progress of the girls and conditions generally in the foster home. This testimony and evidence shows that the Petitioners generally provided the children a good, wholesome home environment, with extensive involvement in school and church activities and with ample wholesome recreation activities at the home site on a lake. During the tenure of the girls in the Petitioners' home their scholastic progress improved markedly such that they were all earning "A and B" grades in school and otherwise were progressing well in school. M.G.'s testimony established that the Petitioners were providing a wholesome home environment for the children and were generally conscientious about caring for the children's needs, including medical needs, and with maintaining contact with and reporting to HRS concerning the children's living conditions and their progress in the home and in the school and church environment. The testimony of M.G. to the general effect that the older girls, particularly the oldest child, had a tendency to threaten reporting the parents or M.G. to HRS concerning their conduct as foster parents and their willingness to lie in an attempt to get their way or to intimidate the foster parents is corroborated by the letter in evidence as corroborative hearsay authored by Linda Kennedy. She is an acquaintance of the Petitioners associated with the Petitioners through the foster parent program. That letter indicates that when the girls were being taken to HRS to make statements concerning the incidents in question that they were reported to have said that they wanted to "get back at her" meaning M.G., the Petitioner and that Marie was heard to instruct Mandy not to talk to a lawyer because she "now liked M.G." and that Michelle had commented to the effect that she "wanted to really get her," meaning M.G. This information is taken from a hearsay letter in evidence pursuant to the above cited provision of Section 120.58, Florida Statutes but it corroborates the testimony to the same general effect of M.G. and corroborates testimony of Mandy who, after describing in her testimony some of the alleged parental abuse by M.G., testified that her sisters had asked her to say things to hurt M.G. Because of these revelations contained in the testimony of Mandy M. and the testimony of M.G., as corroborated by the letter in evidence authored by Linda Kennedy, it is deemed that the testimony of the three children can be accorded scant credibility and resultant weight. Accordingly the testimony of M.G. and Petitioner R.G. is accepted over that of the testimony of the three children testifying for the Respondent and it is found that the incidents described by the three children did not occur or did not occur in the way described by the three children such that they can not be deemed to have constituted abusive, disciplinary parenting practices and prohibited disciplinary practices. The testimony of Donna M. establishes that she has overseen the operation and management of foster homes in her capacity with the Department for many years. After the M. children were removed from M.G. and her husband and their foster home she had a number of telephone conversations with M.G. M.G. appeared to her, based upon her observance and her experience, to seem "fairly incoherent" during those telephone conversations on occasion. Consequently she recommended to M.G. that, in the course of the controversy concerning whether or not the foster home should be relicensed, that M.G. obtain a psychological evaluation. M.G. apparently scheduled that evaluation, appeared at the psychologist's office but, as shown by Petitioner's exhibit 5, the psychologist's report, apparently did not genuinely feel that she needed to get an evaluation. She rather merely consulted the psychologist concerning his advice to her about her dealings with HRS. He declined to render such advice and no psychological evaluation was ever made. In view of Ms. Mimms testimony, which is accepted, and in view of the comments made in the letter of Ms. Kennedy, and from the hearing officer's observance of the demeanor of M.G. and consideration of her testimony, it is deemed appropriate that a psychological evaluation of M.G. be obtained as a condition upon relicensure.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record and the candor and demeanor of the witnesses, it is therefore recommended that a Final Order be entered by the Department of Health and Rehabilitative Services granting the application for relicensure of the Petitioners as a Children Youth and Families foster home for dependent children, conditioned on the obtaining of a satisfactory psychological evaluation of M.G. RECOMMENDED this 3rd day of August, 1992, in Tallahassee, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of August, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-5842 Respondent's Proposed Findings of Fact (The Petitioners submitted no proposed findings of fact which can be independently and specifically ruled upon). - I. Rejected as not supported by the greater weight and credibility of the evidence. COPIES FURNISHED: Rodney M. Johnson, Esquire HRS District 1 Legal Office P.O. Box 8420 Pensacola, FL 32505-0420 Ronald and Marjorie Grover 4713 Radio Road Milton, FL 32583 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 John Slye, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700
The Issue The issue is this case is whether revocation of Respondent's Foster Care license privilege for his past and present conduct, determined by the Department of Children and Family Services (hereinafter Agency) to be inappropriate, was proper under Section 409.175, Florida Statutes.
Findings Of Fact Under Section 409.175, Florida Statutes, the Department of Children and Family Services is the State Agency responsible for evaluating, qualifying, licensing, and regulating family foster care homes. On or about November 5, 1999, the Agency, after Mr. Thibodeau's successful completion of the Agency's evaluation and qualifying procedures, determined Mr. Thibodeau to be of good moral character. At all times material to the application process, Mr. Thibodeau answered completely and truthfully each question contained on each standard application form and other documents presented to him by the Agency during the foster care home application process. Based upon its determination, the Agency granted Provisional Certificate of License, No. 1999-110-002, for Substitute Family Home care privilege to Mr. Thibodeau. Thereafter, the Agency placed three minor children in Mr. Thibodeau's home: two teenaged brothers, David M. and Daniel M., and seven-year-old Steve. After an unspecified period of time together, bonding began to develop between the brothers, Daniel and David, and Mr. Thibodeau. As a result of a mutual agreement, Mr. Thibodeau submitted an adoption application to the Agency to become the adoptive parent of the brothers David M. and Daniel M. At all times pertinent hereto, Mr. Thibodeau answered completely and truthfully each question contained in the standard application forms and other documents presented to him by the Agency during the adoption application process. Ms. Georgia Alezras, trainer for the Model Approach to Partnership in Parenting (MAPP) classes and Mr. Kelvin Birdsell, family therapist and continuity specialist, made a home-study visit to the Thibodeau residence at some time between early July and August 15, 2000. Mr. Birdsell testified that he confined his conversations to the brothers, David M. and Daniel M. during the visit. Mr. Birdsell further testified that his conversations with the brothers were separate and away from the presence and hearing of Ms. Alezras and Mr. Thibodeau, who conversed privately. On July 26, 2000, after Mr. Thibodeau submitted his adoption application, and after the home study visit by Ms. Alezras, the Agency received a confidential telephonic abuse report, Petitioner's exhibit number one.1 The abuse report contains an interpolation of the private conversation between Ms. Alezras and Mr. Thibodeau during the earlier home-study visit. Ms. Carolyn Olsen, Family Counselor Supervisor, testified that Ms. Georgia Alezras reported her private conversation with Mr. Thibodeau to her Agency supervisors. The Agency's interpolation of the Alezras-Thibodeau conversation formed the factual allegations contained in the Agency's August 18, 2000, revocation letter. Sergeant Hagerty, Pasco County Sheriff's Office, testified that she and Sergeant O'Conner investigated the abuse allegations, consisting solely of the Agency's interpolation of Ms. Alezras' earlier and prior conversation with Mr. Thibodeau, by checking with authorities in Washington and checking with the National Criminal Information Center (NCIC) with negative results. The removal of the children from Mr. Thibodeau's home was based upon a joint decision to be safe and take a preventative approach in this matter. Petitioner's exhibit number two, a composite of eight letters, contained a "Closing of Foster Home For Children" report form, with a "foster home closing date" of August 18, 2000, and the caseworker and supervisor's signature on the date of August 22, 2000. The report, under "reason for closing" heading, contains the following comments: [H]is license was revoked because he recently divulged information about his past, that, had we known these facts prior to licensing, would have disqualified him to act as a foster parent---namely, he stated that some years ago he left the state of Washington with an unrelated male child without parental or state permission and lived with him for years under false identification. Ms. Georgia Alezras did not testify. Mr. Thibodeau's testimony is the only evidence of the private conversation with Ms. Alezras. Mr. Thibodeau's recollection of his responses to Ms. Alezras' questions was: [I]n 1975 he moved to the State of Washington; in 1976-77 he met Daniel L.; in 1976-77 he left the State of Washington and moved with Daniel to Pennsylvania where Daniel enrolled in school using his Washington school records; Daniel's mother visited them in Pennsylvania and maintained contact by telephone; Daniel, at age nineteen returned to Washington. He used a friend's birth certificate to secure his Pennsylvania driver's license. His video business2 considerations were subsequently dismissed and he advised the Agency of his decision by letter to his caseworker. Ms. Carolyn Olsen, Agency Representative, testified that one member of every MAPP team always asks a general, catchall question of every [foster care parent] applicant: "Is there anything else we need to know [about you], please tell us, [because] we will probably find out?" Ms. Olsen's candor and purpose comes into question on this point. She was not present during the Alezras-Thibodeau private conversation. Ms. Olsen does not know the identity of the team member who would have asked her catchall question nor does she know of a rule, guideline, or checklist requiring that specific question to be asked of every foster care license applicant, and there was no corroboration of her testimony. The Agency presented no evidence in support of its allegation that during the application process, its failure to inquire and Mr. Thibodeau's failure to disclose activities 20 years earlier in his life resulted from negligence or from the malicious intent of Mr. Thibodeau, and materially affect the health and safety of the minor children in his foster care. The Agency has failed to establish that Mr. Thibodeau left Washington with an unrelated minor child without parental consent and obtained false identification for the child. While it is true that Mr. Thibodeau "left Washington with an unrelated minor child," the Agency produced no evidence that his leaving was "without [minor child's] parental consent." Agency's investigators were unable to make contact with either the child or his mother. No investigation was made of the State of Washington's Motor Vehicle Department. No contact was made with the Pennsylvania authorities. Assuming argunendo, the Agency intended upon establishing this element by "an admission by Mr. Thibodeau"; they presented no evidence Mr. Thibodeau, in fact, uttered words to the effect of or acknowledged the comment "without parental consent." The undisputed evidence is Mr. Thibodeau's testimony that the minor child's mother not only approved of the child leaving Washington with him, but she also visited them in Pennsylvania and had telephone conversations with her child during his stay there. On this issue the Agency failed to carry its burden by clear and convincing evidence. Mr. Thibodeau admitted his use of another's birth certificate to secure a Pennsylvania driver's license more than 20 years ago. Since that time, Mr. Thibodeau's conduct, foster care parenting skills, helping problem young boys, and good moral conduct has been, as testified by the several witnesses, exemplary.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services enter a final order reinstating to Stanley Thibodeau his foster care home license privilege. DONE AND ENTERED 21st day of March, 2001, in Tallahassee, Leon County, Florida. FRED L. BUCKINE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of March, 2001.
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 to be resolved in this proceeding concerns whether the Petitioners have been guilty of violation of pertinent statutes and rules governing qualification and capability to hold a foster home license and to operate a foster home, in this case a "therapeutic foster home" and, if so, whether their application for renewal of licensure should be denied.
Findings Of Fact The above-named Petitioners were licensed as operators of a therapeutic foster home and as therapeutic foster parents. Due to an alleged abuse report, they became involved in a revocation proceeding with the Department concerning their previously-held license. Upon advice by personnel with Camelot, Inc. (Camelot), a private provider which provides services to the Department for therapeutic foster care, by contract, they voluntarily relinquished their previous license on February 6, 2006, in the belief that they would still be entitled to a formal proceeding to contest that the alleged abuse occurred, and their licensure entitlement. The Department declined to afford them a hearing on the issue, and they appealed to the District Court of Appeal for the First District. The Department was upheld. They then applied for a renewal of their therapeutic foster care license on August 10, 2006, for Lake County, Florida. An evaluation of the application was launched by the Department and ultimately the Department issued a denial of the license application. A timely request for an administrative proceeding to contest denial of that license was filed by the Giegers. The license denial was based initially upon the Department's determination that the Giegers had allegedly inappropriately punished children in their home and that they had some sort of business interest or income interest in being licensed foster parents, purportedly a violation of foster parenting rules. Sometime thereafter a supplemental basis for denial was served upon them by the Department wherein the Department alleged that the Petitioners had also violated Section 409.175(4) and (12)(a), Florida Statutes (2006), because they had a child placed in their home through a guardianship agreement that had not been approved by a court and were therefore acting as an unlicensed foster home. A response to that supplemental denial notice was made by the Petitioners. Therapeutic foster parents are trained to provide for children with difficult behavioral problems. The Giegers received this training and remained in compliance with the training updates and continued education necessary in order to continue their licensure in good standing. In addition to this, Mrs. Geiger is a trained mental health specialist, with a master's degree, who works for Lifestreams, a mental health provider, providing services to disturbed children. The Giegers were previously affiliated, as therapeutic foster parents, with the private provider, Camelot, which provides services to the Department for therapeutic foster care. They were licensed as therapeutic foster parents at that time, and accepted a number of severely disturbed children into their home over the years while they were affiliated with Camelot. When a foster parent has a child placed in their home, Camelot has a therapeutic system whereby a therapist is assigned to that child and is available for consultation at any time of day. If the primary therapist is unavailable, the supervisor of that therapist is available for consultation. Camelot's therapeutic personnel and various mental health professionals have been frequently in the Giegers' home to consult, monitor, and assist with the care and therapy of foster children placed there. A number of those therapeutic personnel testified. They established that the Giegers are excellent parents who have provided exemplary care to the foster children placed in their home. These people have training in mental health and related fields. Some hold master's degrees and have been trained to recognize abuse or evidence of it. Some are psychologists, specifically assigned as the mental health professional working with particular children placed in the Giegers' home. In 2005, a child, J.D., was placed in the Giegers' home by the Department. In addition to J.D., there were other children in the home, including Tyler, a non-foster care child placed privately by Camelot with the Giegers, as well as the Giegers' own adopted son. All of the children in the home had been abused prior to their placement with the Giegers. J.D.'s previous situation before coming to the Giegers' home was particularly egregious. He had been starved, locked in a closet, had his fingernails removed by his parents and otherwise was the victim of severe parental abuse before coming into foster care. His was a case of high public notoriety and appears to have been thus treated with a heightened level of attention by the Department, as compared to the case of other children. When J.D. arrived at the Giegers' home after his initial rescue from his earlier situation, he purportedly weighed 58 pounds and was only 4 feet 8 inches tall, at the age of 17 years. During the time he resided with the Giegers, he grew several inches and gained almost 80 pounds due to the care given him by the Giegers. He was placed on special vitamins and formula, in addition to his regular meals, in order to restore him to appropriate physical condition. Because of his physical condition, extra efforts were made by the Petitioners to assure his safety. They even placed him in a private school because they felt he would be at risk attending a large public high school, which he would otherwise have been required to attend. J.D. did well at the Giegers' home initially and it was planned for him to remain in their home after he reached 18 years of age, if he continued to adjust favorably to being a member of their family. He began "acting out" more severely, however, with problematic behaviors. Ultimately it was determined by both the Giegers and Camelot that he should not remain in their home after he turned 18 because of the adverse impact he was having on other children residing in the home. Before the determination was made that J.D. would not remain in the Giegers' home after he reached 18 years of age, the Department had praised the Petitioners' care of J.D. After that decision was made, an attorney for the Department suggested to Mrs. Gieger that she be hired by the Department to provide special services to J.D. Apparently there was a funding problem with regard to continuing J.D. in private school, and this was suggested as a means of funding the private school. Mrs. Gieger, however, did not feel this funding was appropriate because she was already being paid by Camelot for these services, and expressed this to the attorney, she therefore declined that offer. In December 2005 the Department decided to have J.D. re-evaluated by his original evaluator, a psychologist, Dr. Dykel. During his meeting with Dr. Dykel, J.D. apparently told Dr. Dykel that the Giegers had cursed in his presence and in the presence of other children, used racially derogatory language concerning Black children in the foster childrens' presence and that Mrs. Gieger had sat on him as a means of restraint or punishment. He also stated that he was being deprived of food. This meeting occurred on a Friday afternoon. After the meeting J.D. returned to the Giegers' home and made statements about what he had said to Dr. Dykel. Initially the Petitioners thought nothing about the statements, but on the following Tuesday an abuse report was called in indicating that the Giegers had inappropriately punished J.D. in the manner he had related to Dr. Dykel. The child Tyler, who had been placed in the Giegers' home was a child who suffered from severe mental health issues. He had been placed privately with Camelot by his father. He had set his father's and step-mother's bed on fire the previous Christmas because he did not receive a toy, a "PS2," that he asked to be given him for Christmas. There was testimony that he was told by J.D. that if he would make a statement against the Giegers to the Department that he would get the PS2 toy that he wanted. He was taken by Erica Summerfield, an investigator assigned by the Department to the case concerning the abuse report, to the "Child Advocacy Center," for a statement. He apparently made such a statement, of the above import, but then recanted it. Nonetheless, based only on the statement made by J.D. and by Tyler, Erica Summerfield made a determination that the abuse report should be determined to be "founded." As a result of her report (and apparently a past history of abuse reports concerning the Giegers' foster care facility, none of which had been proven to be "founded"), Camelot apparently suggested to the Giegers that they voluntarily relinquish their license, purportedly telling them that they would still have the ability to challenge the abuse report through a Chapter 120 hearing. They sought to obtain a Chapter 120 hearing and the Department denied their request. An appeal ensued and the denial by the Department was affirmed by the District Court of Appeal. During the pendency of that appeal, the Giegers filed an application to renew their license, which was denied. This proceeding ensued after that denial, when the Giegers requested a formal proceeding. The Department offered the testimony of Erica Summerfield who was a child protective investigator assigned to the investigation. She was the supervisor of the person who interviewed J.D. and Tyler, apparently the only sources of investigative information leading to her finding that abuse had occurred. Ms. Summerfield testified that her concerns about the Giegers led her to make a report finding that abuse had occurred because alarms had been placed on the bedroom doors of childrens' bedrooms in the Giegers home; that the Giegers had used excessive restraint against J.D. (allegedly held him on the floor and lay on him or sat on him); and that J.D. had been mentally injured by the Giegers and not provided with sufficient food. She also opined that Mrs. Gieger had made inappropriate statements to J.D. None of these purported findings are supported by credible evidence. Initially it is found that J.D.'s and Tyler statements to the interviewer, who then apparently related them to Ms. Summerfield, constitute, at best, "second-hand" hearsay. Neither the interviewer nor J.D., nor Tyler testified at the hearing, and Tyler later recanted his statements made to the interviewer. The Respondent's exhibits two, three, and four, the interview reports, were offered into evidence and were only admitted regarding a basis for the Department's course of conduct in the matter, but not for the truth of any facts depicted on the face of those exhibits. Concerning the alleged complaint, related to the interviewer, regarding lack of food, the credible persuasive evidence shows that J.D. actually grew several inches after being placed with the Giegers, even though doctors had opined that he would not grow much, if at all, because of the starvation that had occurred early in his life. He also gained substantial weight while being cared for by the Giegers, so that he essentially looked like a normal child by the time he left their care. He had been emaciated when he came to the Giegers' care and had been described as looking like a "concentration camp victim." He was described as being far smaller than a child of his age when he came to the Giegers' care, but seven months later appeared to be essentially a normal child in physical appearance. The evidence, in fact, clearly supports the determination that the Giegers did provide J.D. with appropriate nutrition during their care of him. The basis for the alleged abuse regarding his not being properly fed is simply not credible. The Giegers had also been accused by J.D. or Tyler, or both, with using inappropriate language, racial slurs and cursing in J.D.'s presence, purportedly causing him mental harm. However, mental health experts present in the Giegers' home on a weekly and almost daily basis had never heard any inappropriate language, including any inappropriate racial language or inappropriate cursing in the childrens' presence during their visits to the Giegers' home. Many of these visits were unannounced. Two of the counselors or mental health professionals often present in the home were African-American. They found no evidence of racial tension or racially derogatory language being used by the Giegers or in the Giegers' home. It was their belief that the Giegers did not exhibit any behavior which suggested racism. Further, there were no Black children placed in the Giegers' home during the time that J.D. was there. There is simply no credible evidence to support any finding that inappropriate language was used by Mr. or Mrs. Gieger in J.D.'s or other childrens' presence, of a racially derogatory nature or otherwise. Part of the basis for the abuse finding (and the reason for license denial) was excess restraint or "sitting on" J.D. as punishment. This position was based on the statements of the two children, J.D. and Tyler. One of them, Tyler, tearfully recanted his story shortly after he made the statement. Erica Summerfield testifying for the Department, admitted in her testimony that she was aware of his recantation. She also admitted that Tyler's parents had asked her more than once to allow him to be placed back in the Giegers' home. They also had disclosed to her that he had a habit of making inappropriate statements and lying. There is evidence that J.D. had told him that he would receive a toy he wanted very much if he would make a statement to the Department that J.D. had been abused by the Giegers. Most importantly, J.D. had identified the point in time when Ms. Gieger was supposed to have sat on him as during an occasion when he broke a window at the house. Other mental health providers who were in the home around that time reported never seeing any bruise marks or other evidence of injury to J.D. or at any other time. They also reported that Mrs. Gieger was especially careful of his safety because of the seriously debilitated condition of his body. Most importantly, however, during the time that the window was broken by J.D. and he was severely acting out, Mrs. Gieger was on the phone with a professional from Camelot who was helping her to calm or "de-escalate" J.D. and who remained on the phone with Mrs. Gieger during the entire incident. That expert heard nothing which indicated that Mrs. Gieger had sat on the child or in anyway inappropriately restrained him. Mrs. Gieger denied using physical restraints on the foster children at the hearing. The Department maintains, however, that in two prior reports discussed in Camelot's letter, report 1999-127436 and 2002-007021, the Giegers had admitted restraining foster children. In the 1999 incident the child purportedly sustained rug burns on the face while being restrained on the floor by Mr. Gieger. These reports are at best second-hand hearsay. Moreover, they are not reasons of which the Petitioners were provided notice, as part of the basis for the denial of their licensure application which triggered this proceeding. Moreover, both of those incidents were immediately reported by the Giegers themselves to the Department and, ironically, the Department did not see fit to make any determination at the time, or since, that those incidents amounted to abuse. No finding was made that those alleged incidents were "founded" abuse episodes. Moreover, the Department relies upon an incident where Mrs. Gieger purportedly stated that she used force against J.D. when he tried to grab her neck. She purportedly told Ms. Summerfield in an interview that she gave J.D. a "therapeutic bear hug" by grabbing his arm and turning him around. He fell to the floor as a result. Parenthetically, not even the Department claims that she forced him to the floor. Mrs. Gieger's testimony at hearing concerning this event was to the effect that she grabbed J.D.'s wrist in order to prevent him from striking her or grabbing her neck and that he just collapsed to the floor. The Department then maintains that foster parents are not permitted to use such "force" on foster children, such as grabbing J.D.'s wrist, because it equates this to the use of corporal punishment and that grabbing a child's arm or wrist could "traumatize" an already vulnerable foster child. Mrs. Gieger's testimony, however, indicates that the use of "therapeutic bear hug," even if it occurred, is part of an approved method of training which she had, which is designed to safely manage children who are acting out in a potentially dangerous way, until they can calm down. She testified that Camelot, the Department's contracting agent, had approved this training for her. Moreover, when a foster parent is in danger of attack by a 17-year-old, even a somewhat debilitated child, who threatened striking or grabbing the foster parent by neck or throat, to grab his arm or wrist to prevent such conduct is reasonable and does not constitute unreasonable restraint. Assuming this event occurred, to characterize the grabbing of a child's wrist, to prevent injury or potential injury to a foster parent or another, as excessive force or "corporal punishment" is nonsensical. There is no credible, persuasive evidence that either Mr. or Mrs. Gieger engaged in any excessive force or restraint amounting to abuse. A concern was raised by Dr. Dykle, the psychologist, who was fearful of the fact that alarms had been placed on childrens' rooms in the foster home. Ms. Summerfield based her finding that abuse had occurred, in part, on the report that the alarms had been placed on the doors of some of the childrens' rooms. Ms. Summerfield, however, admitted in her testimony that alarms are often and routinely placed on childrens' rooms in therapeutic foster care homes. The mental health experts who testified clearly established that in every therapeutic foster home such alarms must be placed on bedroom doors because of a safety concern for other children. Children who are placed in this type of home are often serious safety risks for themselves or for other children. They have often been found themselves to be perpetrators of inappropriate or violent conduct. Many times they are children who have been sexually abused and have themselves become sexual perpetrators. In fact, there was a child in the Giegers' home at the time J.D. was there who had set his parents' bed on fire because he did not get a desired toy for Christmas. Dr. Dykle's apparent grave concern about alarms being placed on the childrens' bedroom doors is surprising since it appears to be completely contrary to generally accepted, safe practice for therapeutic foster homes, something that he should have been aware of if he is indeed an expert in child abuse issues. Ms. Summerfield admitted that she was aware that this was a virtually universal safety practice in therapeutic foster homes and yet, paradoxically, used it as a factor in support of her finding that abuse had occurred, as a basis of denial of re-licensure. Ms. Summerfield also admitted that she had spoken with Camelot professionals who assured her that the Giegers had been exemplary foster care parents. She acknowledged that J.D. had made untrue statements in the past about other foster placements. She admitted that the only evidence of improper restraint, or any kind of abuse or neglect in the home, was essentially predicated on the statements of the two children who did not testify in this proceeding. She conceded that one of them had recanted and she knew of this well before the hearing. Mental health experts from Camelot who testified, established that it is a very frequent event for foster children placed in therapeutic foster homes to act out and to make false statements and accusations concerning their care-givers. They also indicated that J.D. had made such false allegations in the past against other caregivers. This was all information that a thorough investigation would have made known to the Department, at the time it was making the determination that there was a basis for a finding of abuse. The only witness other than Ms. Summerfield, presented by the Department, was Amy Hammett, the licensing official who actually signed the letter denying the license application. She testified that she did not review all of the documents that made up the Giegers' license application. Some other department employee had been assigned to the case and it had been later transferred to Ms. Hammett before the final decision was made. She had reviewed five relevant forms, but nothing else. She had no evidence to support the Department's position that the Giegers had relied upon the foster care services they provided for income to support their own family, other than the fact that they had taken a legal position in the appeal from the previous attempt at a Chapter 120 proceeding, to the effect that they had something in the nature of a property interest in their foster care license. This may have been a necessary position to take in an attempt to establish jurisdiction or standing in that proceeding, but other than that, and one statement attributable to Mr. Gieger that there was an adverse financial effect on the Giegers related to that proceeding, it was not established that the Giegers were relying on the income from foster care services to support their family. Rather, in the context of that statement and the Giegers legal position during the course of their appeal, the reference was most likely made in the context that the hiring of an attorney, with related expense, in prosecuting the first case, including an appellate proceeding, caused an adverse financial effect, which is understandable. That does not constitute credible, persuasive evidence that the Giegers were relying upon foster care services as income to support their own family and themselves in violation of any Department rule. Mrs. Gieger, indeed, testified under oath that they did not rely upon foster care income to support their family. Her testimony and that of others showing that they have successfully operated a well- managed, licensed home for a substantial period of time, shows that the Petitioners are financially capable of operating safely and successfully under a new license. There is no persuasive evidence to the contrary. The greater weight of the credible evidence is persuasive in establishing that the Giegers provide quality therapeutic foster care and have not engaged in the abuse with which they are charged. Even J.D. expressed the desire to come back and live with the Giegers and, after he reached 18 years of age, he did so. This certainly does not support the existence of abuse. Moreover, Earnest Thomas, J.D.'s guardian ad litem established that the Giegers provided J.D. with excellent care. He was a frequent visitor in their home and paid close attention to J.D.'s well-being during times pertinent to this case. Further, the caseworker, Sheila Donato, was the person who took J.D. from the Giegers' home when he was removed by the Department. On this occasion she stated that he was tearful and crying when he left the Giegers' home and asked if he would be able to come back to their home for Christmas. There were no bruises or other evidence that he had been harmed in any way. She established that the fact that he returned to the Giegers home after he turned 18 years of age is evidence that he had never been abused while there. After the Giegers' foster care license had been relinquished voluntarily by them under the above-referenced circumstances, Tyler's parents executed "guardianship papers" placing Tyler in the custody or guardianship of the Giegers and they continue to allow Tyler to reside in their home. The Department maintains that this was an illegal placement because the Giegers were not a licensed foster care facility at that time and had not secured a court order allowing Tyler to be in their guardianship. The circumstances were, however, that Ms. Giegers' mother was the attorney who prepared the guardianship papers for the Giegers and for Tyler's parents to execute. She rendered an opinion to them that that was sufficient to justify allowing Tyler to remain in the Giegers' home. Ms. Gieger testified that she knew of other teachers and other individuals who had used similar documents to establish a basis to take custody of a child in their home. She believed that what she was doing was legal. There was no intent by her, or Mr. Gieger, to engage in any kind illegal custody, guardianship or circumvention of the foster care licensure requirements, or any other illegal act. There is no evidence that Tyler had been adjudicated dependent and subject to the custody of the Department.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Department of Children and Family Services granting a foster home license to the Petitioners, authorizing their operation as a therapeutic foster home. DONE AND ENTERED this 9th day of August, 2007, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with Clerk of the Division of Administrative Hearings this 9th day of August, 2007. COPIES FURNISHED: Jerri A. Blair, Esquire Lockett & Blair Post Office Box 130 Tavares, Florida 32778 Ralph J. McMurphy, Esquire Department of Children and Family Services 1601 West Gulf Atlantic Highway Wildwood, Florida 34785 Gregory Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John J. Copelan, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Robert A. Butterworth, Secretary Department of Children and Family Services Building 1, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue is whether Respondent should revoke Petitioner's license to operate a foster care home.
Findings Of Fact At all times material to this proceeding, Petitioner was licensed as a therapeutic foster parent. Respondent issued this license to Petitioner through the Devereux Foundation, which operates and maintains a network of foster homes to serve dependent children in Respondent's custody. Respondent places children in therapeutic foster when they have been exposed to a severe degree of physical, emotional, and/or sexual abuse, as well as extreme neglect and/or abandonment. Such children require special care and cannot be disciplined like children in a stable nuclear family. Therapeutic foster parents should never spank or use other physical methods of punishment or behavior management on these children. Many therapeutic foster children have acute and unresolved issues with control and authority. In such cases, attempts by authority figures to assert rigid control over the children will likely provoke emotionally charged oppositional reactions by the children. This is especially true when the children have not developed a relationship with the authority figures. The likelihood that such oppositional reactions will occur is much greater when authority figures attempt to impose their will on the children with the use of physical force. Children in foster care experience great difficulty in learning to trust others. The inability to trust others is reinforced when a near-stranger makes demands on therapeutic foster children, then uses physical force to compel submission. Children from dysfunctional families often experience violence in the homes of their natural parents. The children learn at an early age to respond with violence to stressful situations. The use of physical force on foster children thus generates a real and severe risk of physical injury to the foster children, the foster parents, and innocent bystanders. One purpose of therapeutic foster care is to help children learn that violent behavior is not acceptable. When foster parents use physical force to compel obedience, they reinforce the lessons learned in the homes of their natural parents at the expense of the lessons the foster care program attempts to teach. Therapeutic foster parents undergo special training before they become licensed. The Model Approach to Parenting and Partnership (MAPP) training that all foster parents receive places special emphasis on the emotional fragility of children in foster care and the consequent need to avoid confrontation with foster children. In other words, MAPP training teaches foster parents not to engage in power struggles with their charges. MAPP training emphasizes the use of positive discipline for the inevitable situations in which foster children test the boundaries set by the foster parents. These methods include reinforcing acceptable behavior, verbal disapproval, loss of privileges, and redirection. Any form of verbal abuse or physical force is strictly prohibited. Petitioner received all of the training described above. In March 2001, a sibling group of two sisters (S.M.1 and S.M.2) and a brother (D.M.) were living in a therapeutic foster home operated by Brad and Sharon Carraway through the Devereux Foundation. Mr. and Mrs. Carraway were licensed therapeutic foster parents. Respondent and the Devereux Foundation have a policy that allows for substitute foster care when therapeutic foster parents need some time away from their foster children. In that case, Devereux arranges for another licensed therapeutic foster home in its network to care for the foster children for a period of time, usually a weekend. This arrangement is known as respite foster care. During March 2001, the Carraways needed a weekend away from their foster children to take care of some family business. At that time, Loretta Kelly was the foster care program manager for Devereux in the North Florida area. Ms. Kelly made arrangements for Petitioner and his wife to take the children during the weekend of March 23-25, 2001. The children arrived in Petitioner's home late in the afternoon of Friday, March 23, 2001. As S.M.1 and S.M.2 settled into their room, Petitioner advised them that supper would be served in five minutes. S.M.1 then announced that she was not hungry and would not be going to supper. Petitioner replied that S.M.1 could either go to the table for supper or he would be back in five minutes and make her go to the table. Five minutes later, Petitioner returned to the bedroom. He told S.M.1, who was sitting on the bed, to come in to supper. When S.M.1 refused again, Petitioner grabbed S.M.1 by the wrists and tried to drag her into the dining room. A struggle ensued with S.M.1 yelling for Petitioner to let go. During the struggle, S.M.1's wrist watch broke, leaving scratches on her arm. S.M.2 was in the hall. Hearing her sister call for help, S.M.2 ran in to help S.M.1. S.M.2 pushed Petitioner away from her sister. Petitioner then grabbed S.M.2 by the wrists and struggled with her for over a minute. During the struggle, S.M.2 slid down to a sitting position with her back against the wall. S.M.2 then used her feet in an attempt to break free from Petitioner. The struggle left S.M.2 with a scar from a scratch she received on her arm. Petitioner finally gave up and called the girls' therapist, Lori Farkas, to complain about the situation. S.M.2 heard Petitioner state that he wanted the girls out of his home. The incident was reported to Respondent. Subsequently, Respondent commenced a child protective investigation into the allegations; the investigation was still open on April 20, 2001. Petitioner became angry when he learned what the children told Respondent's investigators. He telephoned Ms. Kelly on the afternoon of April 20, 2001. He accused the children of lying and asserted that they should be punished. He threatened to file battery charges against the children and have them arrested if they did not change their story and "tell the truth." Next, Petitioner telephoned Ms. Carraway. He told Ms. Carraway that she ought to be teaching the girls morals and honesty. He accused the girls of lying. Petitioner informed Ms. Carraway that he was going to consult an attorney and have the girls arrested at school for assault and battery. Petitioner told Ms. Carraway that he would be more believable in light of the children's background. S.M.1 was with Ms. Carraway during Petitioner's telephone call. Ms. Carraway and S.M.1 wrote notes to each other regarding Petitioner's comments during the telephone call. Both girls were apprehensive for some time after this telephone call about the possibility of being arrested. Ms. Carraway called Ms. Kelly immediately after talking to Petitioner. Ms. Kelly then called Petitioner to instruct him not to make any further calls to the Carraway home.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent enter a final order revoking Petitioner's therapeutic foster license. DONE AND ENTERED this 22nd day of April, 2002, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of April, 2002. COPIES FURNISHED: David L. Motes 2023 Duneagle Lane Tallahassee, Florida 32311 John R. Perry, Esquire Department of Children and Family Services 2639 North Monroe Street, Suite 252A Tallahassee, Florida 32399-2949 Peggy Sanford, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
The Issue The issue presented is whether the Respondent committed the offenses set forth in the Administrative Complaint filed in this case and, if so, what disciplinary action should be taken.
Findings Of Fact At all times material hereto, Respondent, Kathy Bergerson, held a family foster home license for her residence issued by the Children, Youth and Family Program Office of Petitioner, Department of Health and Rehabilitative Services. As it relates to the license at issue, Respondent was first licensed by Petitioner in April 1987. In her home, Respondent was responsible for several developmentally disabled children and a developmentally disabled adult. Respondent's mother lives in an apartment adjoining the home and has access to the residence. Respondent's mother is a registered nurse. During the period since the licensure, the several incidents described in the following paragraphs occurred. Because the incidents involved Respondent or her home and the incidents were unexplained, Petitioner became concerned for the safety of the children in Respondent's care. The incidents at issue are as follows: Sometime during 1987 while one of the children was hospitalized, the child was discovered in what appeared to be a drug-induced sleep during a visit by Respondent. No harm to the child was demonstrated from the incident, and Respondent relayed the incident to Petitioner during her relicensure interview in 1988. Also, sometime in 1987, a housekeeper, provided by Metro-Dade County, allegedly assaulted Respondent's mother while attempting to steal toys and bed sheets from the home. No harm to the children was shown from the incident, and Respondent reported the incident to Petitioner during her relicensure interview in 1988. Then, early in 1988, Respondent received a delivery of medication which did not contain full amounts of the prescribed contents. The medication was delivered by a representative sent by Petitioner. No harm to the children was proven from the incident, and Respondent reported the incident to Petitioner. In July 1988, a report of the sexual abuse of the developmentally disabled adult living with Respondent was filed with Petitioner. The final disposition of the incident was not shown; however, neither Respondent nor Respondent's mother were classified as perpetrators of the alleged abuse. In September 1988, a child under Respondent's care, and custody was hospitalized after she became, untypically, lethargic and unresponsive when Respondent gave the child a dose of Panadol for her fever. Fearing that the child was allergic to the medicine, Respondent brought the bottle from which she had administered the medicine with them to the hospital, and reported her fear to the medical personnel at the hospital and to Petitioner. Although Petitioner asserted that the bottle of medicine was tested for its contents, the proof failed to demonstrate that a test was performed or the results of any such test. Respondent kept the medication for the children in a locked cabinet in her kitchen. Included in the drugs in the cabinet were Panadol, Valium and Benedryl. In addition to Respondent, Respondent's mother and nurses provided by Petitioner, on occasion, had access to the cabinet. While Petitioner contended that the Panadol given to the child was adulterated with Valium and Benedryl, the proof failed to indicate that the Panadol was altered, or that the child suffered from the ingestion of the medication. Petitioner asserted that it was unusual for a foster parent, such as Respondent, to have as many unexplained events reported within an almost two- year period. Therefore, based on the above incidents and what Petitioner perceived to be a pattern of unexplained incidents involving Respondent and her home, and after ordering a psychological evaluation of Respondent and her mother, Petitioner issued its notice of intent to revoke Respondent's family foster home license on February 14, 1989. Petitioner alleged that Respondent was not capable of handling the stresses associated with maintaining a family foster home. At the hearing Respondent demonstrated a tendency to become overly excited; however, the proof failed to demonstrate that she is unable to handle the stresses of her life. Respondent is a caring person who has an obvious interest and concern for the children in her charge. She expressed deep concern over each of the incidents recited above and, in fact, reported the majority of the incidents to Petitioner. Although the incidents described above generate concern, was not shown that the safety of the clients was endangered by the incidents.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: Recommended that the Department of Health and Rehabilitative Services issue a Final Order withdrawing its intent to revoke Respondent's family foster home license. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 15th day of December 1989. JANE C. HAYMAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Park way Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of December 1989.
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
