The Issue The issue in this case is whether Petitioner should deny the application for renewal of Respondent's foster home license because “skinny dipping” with a foster child at the foster home violates Section 409.175, Florida Statutes (2001), and Florida Administrative Code Rule 65C-13. (All section references are to Florida Statutes (2001). All references to rules are to rules promulgated in the Florida Administrative Code in effect on the date of this Recommended Order.)
Findings Of Fact Petitioner is the state agency responsible for licensing and regulating foster homes in Florida. A foster home license is valid for a period of one year and must be renewed annually. Various privatized entities supervise licensed foster homes, review applications for foster home licenses, and make recommendations to Petitioner regarding the applications. However, the recommendations are not binding on Petitioner. Petitioner, rather than the private entity, is the licensing agency. For example, Petitioner rejected the recommendation from the private entity with responsibility for reviewing the application at issue in this proceeding. Petitioner first issued a foster home license to Respondent on January 28, 2000. Petitioner licensed Respondent to operate a therapeutic foster home. A therapeutic license authorized Respondent to operate a foster home for children with psychological or emotional disorders and for children without such disorders. Therapeutic foster homes operate under the auspices of a private entity known as Personal Enrichment through Mental Health, Inc. (PEMHS). PEMHS recommended that Petitioner issue the original foster home license on January 28, 2000, and a renewal license that Petitioner issued on January 28, 2001, for the second year. The second therapeutic foster home license expired on January 27, 2002. Petitioner never took action to discipline or revoke Respondent’s therapeutic foster home license. In July 2001, Respondent applied for a non- therapeutic foster home license. The non-therapeutic license that Respondent seeks authorizes a licensee to operate a foster home only for children without psychological or emotional disorders. Non-therapeutic foster homes operate under the auspices of a private entity known as Family Continuity Programs (Family Continuity). Family Continuity recommended that Petitioner approve the application for a non-therapeutic foster home license. However, Petitioner did not follow the recommendation of Family Continuity and denied the application. Petitioner's denial of Respondent's application for a non-therapeutic foster home license is the proposed agency action that is at issue in this proceeding. Respondent's application for a non-therapeutic foster home license is not an application for a new license. Rather, it is an application for renewal of an existing license. Both the therapeutic license that Respondent held at the time of the application and the non-therapeutic license that Respondent seeks authorize the licensee to operate a foster home for children without psychological or emotional disorders. By applying for a non-therapeutic foster home license before the expiration of his therapeutic foster home license, Respondent sought to renew his license to operate a foster home for children without psychological and emotional disorders. The non-therapeutic license that Respondent seeks does not impose any requirements in addition to those that Respondent had already satisfied when Petitioner granted the therapeutic license to Respondent. The requirements for the therapeutic license are more stringent than those that must be met to qualify for a non-therapeutic license. The requirements for a therapeutic license are more comprehensive, and Petitioner requires an applicant for a therapeutic license to have more training than an applicant for a non-therapeutic license. A non-therapeutic license does not impose requirements in addition to those imposed for a therapeutic license. Petitioner proposes to deny the application for renewal of Respondent's foster home license on the sole ground that Respondent went "skinny dipping" with two minor males. One of those males was a foster child assigned to Respondent. The foster child is a victim of past sexual abuse and has psychological and emotional disorders. The child suffers from oppositional defiance disorder and mood disorder. The symptoms of the disorders include self-injury, such as head banging, aggression, anger, and low self-esteem. However, many of the behavioral problems diminished during the 15 months that the foster child was in Respondent's care. The "skinny-dipping" events occurred between six and nine times during the 15 months that the foster child was in Respondent's care. During that time, the foster child was between 12 and 14 years old. The foster child swam nude in the swimming pool at Respondent's residence and bathed nude in the hot tub adjacent to the pool. On some of those occasions, Respondent was nude in the hot tub and swimming pool with the foster child and at other times the two were in the swimming pool and hot tub independently of each other while both were nude. The local sheriff's office investigated the foster home and found no indicators of abuse. Once PEMHS learned of the "skinny dipping" events, neither PEMHS nor Petitioner sought to revoke Respondent's therapeutic foster home license or to provide Respondent with remedial training. Rather, PEMHS removed the foster child from the foster home and refused to assign any more foster children to Respondent's foster home. At the administrative hearing, Petitioner sought the post-hearing deposition testimony of Dr. Cotter for several purposes. One of those purposes was to show the impact on the foster child from the "skinny dipping" events. Another purpose was to show that the "skinny dipping" was "grooming behavior" for future pedophilia. The ALJ sustained Respondent's objection to the admissibility of the expert deposition testimony for the purpose of showing the impact on the foster child and for the purpose of showing that the "skinny dipping" was "grooming behavior" for future pedophilia. Dr. Cotter could not render an opinion concerning the actual impact on the foster child from the "skinny dipping" events or whether those events were actually intended by Respondent as "grooming behavior" for future pedophilia. Dr. Cotter did not intend to evaluate either the foster child or Respondent before rendering his opinions and, in fact, never evaluated either individual. Any expert opinion by Dr. Cotter concerning "grooming behavior" for pedophilia was not relevant to the grounds stated in the Notice of Denial. That expert opinion was relevant only to grounds not stated in the Notice of Denial. Nudity in a swimming pool and hot tub are not synonymous with "grooming behavior" for pedophilia. Nudity and "grooming behavior" for pedophilia are separate grounds for denying the application for renewal of Respondent's license to operate a foster home. Petitioner failed to provide adequate notice prior to the administrative hearing that Petitioner sought to deny the renewal of Respondent's license on the separate ground that Respondent engaged in "grooming behavior" for pedophilia. Fundamental principles of due process prohibit a state agency from notifying a regulated party of the allegations against the party and then, at the hearing, proving-up other allegations. One of the primary functions of an ALJ is to assure that an administrative hearing is a fair hearing. Respondent was not prepared at the administrative hearing to submit evidence, including expert testimony, to refute any allegation not stated in the Notice of Denial. The admission of evidence relevant to allegations not stated in the Notice of Denial would have required a continuance of the administrative hearing to provide Respondent with an opportunity to refute the allegation. A continuance would have denied Respondent a remedy during the period of continuance, increased the economic burden on Respondent, and frustrated judicial economy. Nothing prevents Petitioner from bringing a separate proceeding against the licensee based on the allegation that Respondent engaged in "grooming behavior" for pedophilia. The ALJ limited the testimony of Dr. Cotter to those grounds for denial that Petitioner stated in the Notice of Denial. In relevant part, the Notice of Denial states: After careful review and consideration, your application has been denied. Our decision is based on the following: Your admission that you and two minor boys, one of which was a foster child under your supervision, participated in several "skinny dipping" incidents during your recent licensure as a foster parent for Pinellas Enrichment Through Mental Health Services (PEMHS). As you are aware, the nature of a boy's early experiences may affect the development of his sexual attitudes and subsequent behavior. Therefore, foster parents are expected to provide opportunities for recreational activities appropriate to the child's age. "Skinny dipping" in a hot tub with two minor boys violates the intent of this rule. These incidents reflect poor judgment for a person who is a licensed foster parent. Respondent's Exhibit 1. The Notice of Denial essentially states four grounds for denying the application for renewal of Respondent's license. One ground is the impact on the development of the foster child's sexual attitudes and subsequent behavior. Another ground is nudity between a foster parent and a foster child. A third ground is that Respondent exercised poor judgment. The remaining ground is that Respondent provided recreational activities that were not appropriate to the foster child's age. No evidence shows that the "skinny dipping" events had any adverse impact on the development of the foster child's sexual attitudes and subsequent behavior. Dr. Cotter did not evaluate the foster child to determine the actual impact of the events on the foster child. Contrary to the statements in the Notice of Denial, Petitioner's representative testified at the hearing that Petitioner did not consider the impact on the child that resulted from skinny dipping with Respondent. The preponderance of evidence shows that the actual impact of the foster care provided by Respondent during the 15 months in which the "skinny dipping" events occurred was positive. Many of the foster child's behavioral problems greatly diminished. The foster child made remarkable progress in his behavior both at home and at school. The foster child bonded with Respondent, and Respondent was an exemplary foster parent. The placement of the child with Respondent was so successful that Family Continuity published an article in their magazine about the successful match between the foster child and Respondent. Family Continuity considers Respondent to be an exemplary foster parent and wishes to have Respondent in its foster care program. If Petitioner grants the application for renewal, Family Continuity intends to return the foster child to Respondent for adoption. The second ground stated in the Notice of Denial is nudity between the foster parent and foster child. Without considering the impact on the foster child, Petitioner determined that being naked in the presence of a foster child, without more, was sufficient to close a foster home, remove a child, and revoke a foster home license. Petitioner cited no written statute or rule that prohibits nudity between a foster parent and foster child; or that establishes intelligible standards for regulating such nudity. Petitioner failed to submit competent and substantial evidence to explicate an unwritten policy that prohibits or regulates nudity. Rather, some evidence shows that nudity between foster parents and foster children is generally unavoidable and common. The third ground stated in the Notice of Denial is that Respondent exercised poor judgment. Several witnesses at the hearing and Dr. Cotter opined that Respondent exercised poor judgment. It is unnecessary to determine whether Petitioner exercised poor judgment because Petitioner cited no written rule or policy that defines or prohibits "poor judgment." For reasons stated in the Conclusions of Law, Petitioner must base a denial of a license application on a finding that the applicant violated a specific statute or rule. Petitioner cannot use the Notice of Denial to invent requirements that are not authorized by statute or rule. Petitioner cited no statute or rule that defines "poor judgment" or that establishes intelligible standards to guide the discretionary determination of whether an applicant has exercised poor judgment. In the absence of intelligible standards, the determination of whether an applicant has exercised poor judgment is necessarily an exercise of unbridled agency discretion. The use of unbridled agency discretion to make findings of fact violates fundamental principles of due process. Unbridled agency discretion creates the potential that agency decision-makers may define poor judgment by relying on their personal predilections rather than on those standards authorized by the legislature. Even if it were determined that poor judgment is a standard authorized by the legislature and that Respondent violated that standard, the determination is not dispositive of whether Petitioner should renew Respondent's license to operate a foster home. For example, representatives for Family Continuity and PEMHS agreed in their testimony that Respondent exercised poor judgment. However, Family Continuity recommends that Petitioner issue the non- therapeutic foster home license while PEMHS recommends against renewal of the license. The remaining allegation in the Notice of Denial is that "skinny dipping" is not an age-appropriate recreational activity. Rule 65C-13.010(1)(b)8a. states: 8. Recreation and community. a. The substitute parents are expected to provide opportunities for recreational activities for children. The activities must be appropriate to the child's age and abilities. Swimming in a swimming pool and bathing in a hot tub are recreational activities within the meaning of Rule 65C- 13.010(1)(a)8a. Swimming nude and bathing nude in a hot tub with a nude adult are not appropriate for a child who is between 12 and 14 years old and whose psychological and emotional abilities are diminished by past sexual abuse.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Petitioner enter a final order finding that Respondent violated Rule 65C-13.010(1)(b)8 and granting Respondent’s application for a therapeutic foster home license. DONE AND ENTERED this 8th day of May, 2002, in Tallahassee, Leon County, Florida. ___________________________________ DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of May, 2002. COPIES FURNISHED: Frank Nagatani, Esquire Department of Children and Family Services 11351 Ulmerton Road, Suite 314 Largo, Florida 33778-1630 Gary A. Urso, Esquire 7702 Massachusetts Avenue New Port Richey, Florida 34653 Paul Flounlacker, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
The Issue Whether Respondent's license to operate a foster home for dependent children should be suspended or revoked for lack of cooperation, and violation of the Petitioner's discipline policy, and licensing standards as outlined in the Administrative Complaint.
Findings Of Fact Respondent is an elderly woman who has operated a foster home since October 1989, at 7018 Ironwood Drive, Orlando, Orange County, Florida. Respondent applied for and was granted a foster home license in October, 1989. Foster home licenses are valid for one year and must be renewed annually. Respondent has annually renewed her license and presently holds license number 1093-11, issued October 18, 1993. In a licensing visit on April 6, 1990 Respondent admitted that she had been using some physical discipline with the children. She stated that she had been tapping the children's hands and had threatened one of the kids with a comb. Respondent was counselled by the Petitioner's licensing representative in regard to the agency's disciplinary guidelines. As a follow-up to the counseling session, a letter was sent to Respondent, dated April 6, 1990, by Licensing Representative Barbara Wavell, which advised Respondent that physically disciplining a foster child in her home was a violation of HRS policy. Respondent received the letter, and although she now believes that it contains misstatements of facts, she did not dispute its contents at the time. Respondent was made aware of the discipline policy of HRS on various occasions and during the required foster parent training, and agreed to abide by it. On April 10, 1992, Respondent expressed to Ms. Wavell that she believed "schools should be allowed to spank" and that "children need discipline and there is nothing wrong with appropriate spanking". In late 1993, Respondent hit at least one foster child who was placed in her home, because the child wet the bed. During 1993 and early 1994, Respondent allowed older foster children to discipline younger foster children with corporal punishment. On occasion, Respondent has restricted children from having access to their family members. Respondent has made derogatory remarks about some of the foster children's biological family members while in the presence of the foster children. Respondent had problems working with some of the children's caseworkers, most notably Jodi Peterson, on various occasions. Respondent expressed her concern that the caseworker visited her home too much, and she preferred that Ms. Peterson not have much contact with her foster children. Respondent felt that she should be included in the conversations between the children and their foster care counselors and would get upset that she was not included in these discussions. Respondent did not recognize the need for the children to have privacy and that it impinged on their right to have a proper relationship with their counselors. Respondent had on-going communications problems with the caseworkers. Respondent was specifically instructed concerning monetary allowances for the children, and the fact that the money given to Respondent was to be used for the children for clothing and incidentals. Respondent had difficulty accepting the fact that the children were entitled to monetary allowances to be used for clothing and incidentals. Respondent refused to allow the foster children placed in her home to participate in school activities, she refused to give them their allowance money to pay for school field trips. Respondent did not allow the foster children to have friends visit or to go places for fun. She encouraged them to stay home and watch television in their free time. Respondent on occasion made derogatory marks to some of the foster children placed in her home. Respondent did not show appropriate concern for the safety of a four- year-old foster child who was sharing a bedroom with two twelve-year-old foster children. Respondent was aware that they were hitting her, however, Respondent did not remove the child from that bedroom, although she had three empty bedrooms in the home. Although many visits have been made to the Respondent's home in an attempt to work with her to assist her in bringing the quality of care in her home up to an acceptable level, Respondent has failed to comply. On April 5, 1994, Petitioner's representative visited the Respondent to discuss the reasons that the Petitioner would be seeking a revocation of her license to operate a foster home.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby RECOMMENDED that a final order be entered revoking Respondent's license to operate a foster home. DONE and ENTERED this 18th day of May, 1995, in Tallahassee, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of May, 1995. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties. Proposed findings of fact submitted by Petitioner. Accepted in substance: paragraphs 1 (in part), 2, 4 (in part), 7 (in part), 8 (in part), 10 (in part), 11 (in part), 13 (in part), 14, 15, 16 (in part), 18, 20, 21, 22, 25, 26, 28 (in part), 29 (in part), 30 (in part), 31, 33, 34. Rejected as not supported by clear and convincing evidence: 1 (in part), 10 (in part), 19, 24. Rejected as subsumed, irrelevant or immaterial: paragraphs 3, 6 (in part), 7 (in part), 8 (in part), 9, 11 (in part), 12, 13 (in part), 16 (in part), 17, 23, 27, 28 (in part), 29 (in part), 30 (in part), 32. Rejected as a conclusion of law: paragraph 5 Proposed findings of fact submitted by Respondent. Respondent did not submit proposed findings of fact. COPIES FURNISHED: Laurie A. Lashomb, Esquire Department of Health and Rehabilitative Services District 7 Legal Office 400 W. Robinson Street, Suite S-827 Orlando, Florida 32801 Jane Carey, Esquire 905 W. Colonial Drive Orlando, Florida 32801 Robert L. Powell Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Bouelvard Tallahassee, Florida 32399-0700 Kim Tucker, Esquire Department of Health and Rehabilitative Services 1323 Winewood Bouelvard Tallahassee, Florida 32399-0700
The Issue Whether Respondent, Delores Wilson, committed the acts alleged in the Administrative Complaint, and, if so, whether her foster care license should be revoked.
Findings Of Fact Respondent was first licensed as a foster parent in Florida, in or about 2003, after she applied for and was granted a foster care license through Camelot Community Care, Inc. (Camelot), a foster parent licensing agency located in Tampa, Florida. Prior to receiving a foster care license through Camelot, Respondent signed a Letter of Agreement with Camelot. Pursuant to the terms of the Letter of Agreement, Respondent agreed to comply with Camelot's policies. Additionally, the letter advised Respondent that if she violated the policies, foster children would be removed from her home, and the Department would make decisions regarding the revocation of her license. After Respondent was licensed, two foster children, T. and D., were placed in her home. T., a girl, was placed in Respondent's home in November 2003, and D., a boy, was placed there in December 2003. In November 2004, Camelot staff met with Respondent to discuss the foster children who had been placed in her home. At the time of this meeting, D. was 15 or 16 years old and T., who was about 18 years old, was pregnant and due to deliver the baby in a few months. D. had a history of sexually acting out. Because of D.'s history, Camelot's policy was that D. not be placed in a home with younger children. In light of D.'s history and Camelot's policy related thereto, during the November 2004 meeting, Camelot staff told Respondent that when T.'s baby was born, the baby could not live in the same house with D. Therefore, Camelot staff advised Respondent that she would have to choose whether she wanted to continue to work with D. (have D. remain in her home) or assist T. with her baby. Respondent was also told to notify Camelot when the baby was born. In December 2004, Respondent was informed that it was likely that T.'s baby would be adopted or put in foster care upon birth due to T.'s extensive disabilities. Respondent had also been told that the baby would not be given to the mother while she was in the hospital. On January 29 or 30, 2005, T., who was then 19 years old, gave birth to her baby at a hospital. It is unknown what happened at the hospital to alter the proposed adoption or foster care plan for the baby. However, while T. was in the hospital, the baby was given to her. On or about February 1, 2005, T. and the baby left the hospital. Both T. and her baby then went to Respondent's home and lived with her. The reason Respondent allowed T. and the baby to stay with her was because she wanted to help T. Despite regular communications with Camelot staff during the time period after the baby was born, Respondent never told anyone associated with Camelot or the Department that T. had given birth to the baby. Camelot found out about the birth of the baby only after being notified "indirectly" by another waiver support coordinator. D's initial placement with Respondent remained unchanged until February 7, 2005, when Camelot first received reports that T.'s baby was living with Respondent. On that day, Camelot removed D. from Respondent's home. On February 16, 2005, Camelot staff, D.'s waiver support coordinator, a Hillsborough Kids, Inc., case manager, and Respondent met to discuss the situation which resulted in D.'s being removed from Respondent's home on February 7, 2005. At this meeting, the subjects of the November 2004 and December 2004 meetings described in paragraphs 4, 5, and 6 above, were also reviewed and discussed. A summary of the February 16, 2005, meeting was reported in a letter dated February 28, 2005, written by Camelot's clinical director, who attended that meeting. A copy of the letter was furnished to several persons who attended the meeting, including Respondent. The letter expressly stated that anyone who had further comments or concerns should contact the clinical director. Respondent never contacted the clinical director or anyone at Camelot regarding the contents of the February 28, 2005, letter. The discussion at the February 16, 2005, meeting focused on D. and the circumstances surrounding his removal from Respondent's home. Camelot staff specifically discussed Respondent's decision to allow T. and T.'s baby to live with Respondent, after being told that this should not happen and her failure to notify Camelot that the baby had been born and was in her home. During this meeting, Respondent never denied the foregoing facts. Rather, Respondent explained that she allowed T. and her baby to stay with her was so that she (Respondent) could help T. As a result of Respondent's failure to disclose to Camelot staff that T. had given birth to the baby and that both T. and the baby were living with Respondent, Camelot placed Respondent's foster home license on inactive status in or about late February 2005. Camelot advised Respondent of this decision at the February 16, 2005, meeting. In addition to placing Respondent's license on inactive status, Camelot also recommended that Respondent not be re-licensed as a foster parent. Respondent's foster care license was set to expire on July 31, 2005. After Respondent's foster care license issued by Camelot expired, she applied to Florida Mentor, another foster care licensing agency, for licensure as a foster parent. Florida Mentor reviewed Respondent's application for foster care licensure. As part of its review, Florida Mentor conducted a home study, the results of which were summarized in a report titled, "Annual Re-Licensing Home Study-2005" (Home Study Report or Report), which was completed on or about October 27, 2005. During the review process, Florida Mentor learned that Respondent had been previously licensed by Camelot and that the license had been placed on inactive status and allowed to expire. Based on information obtained from the Department's licensure file on Respondent and/or information provided by Respondent, Florida Mentor also learned about the circumstances discussed in paragraph 13, that caused Camelot to remove a foster child from Respondent's home and to place her foster care license on inactive status. Florida Mentor staff met with Respondent and discussed the situation involving D., T., and T.'s baby that occurred when she was licensed by Camelot. Respondent did not deny that she had violated Camelot's policy and had brought T. and T's baby to her home when D. was still there. Instead, Respondent acknowledged that she realized that her decision to bring T.'s baby home resulted in her clients being removed from her home and Camelot's decision to place her license on inactive status. Notwithstanding Respondent's admitting that she had failed to adhere to Camelot's policy regarding allowing T.'s baby in her home when D. was still there, she expressed to the Florida Mentor staff her desire to continue to work as a foster parent. Florida Mentor staff acknowledged Respondent's desire to serve as a foster parent. However, in light of her failure to comply with Camelot's policies and procedures, Florida Mentor staff discussed with Respondent the importance of communication and honesty with the foster care agency and the adherence to the policies and decisions of the agency. Florida Mentor considered several factors in its review of Respondent's application for a foster care license. These factors included Respondent's prior foster care experience with Camelot, including her admission that her violation of Camelot's policy was the reason her license was placed on inactive status; Respondent's statement of her desire to be a foster parent; and her apparent understanding that it was important that she comply with the policies of the foster care agency. Based on its review of the application and the findings and conclusions in the home study report, Florida Mentor recommended that Respondent be re-licensed as a therapeutic foster parent. Based on Florida Mentor's recommendation, Respondent was granted a new foster parent license, which was effective on November 1, 2005. It is that license which is at issue in this proceeding. Prior to issuance of Respondent's November 1, 2005, foster care license, Respondent was required to sign a Bilateral Service Agreement (Bilateral Agreement). That Bilateral Agreement set forth the terms and conditions with which all affected parties, the Department, the foster care agency, and Respondent must comply. The Bilateral Agreement was executed by Respondent and by a Florida Mentor staff person, on behalf of the Department, on October 4, 2005. Pursuant to the Bilateral Agreement, Respondent agreed to "notify the Department immediately of a potential change in . . . living arrangements or family composition (who is in the home), employment, significant health changes or any other condition that may affect the child's well being." In November 2005, after Respondent received her new foster care license, foster children were placed in Respondent's home. One child, M.J., was placed with Respondent on November 15, 2005. Two other children, S.C. and M.C., who were brothers, were place with Respondent on December 19, 2005. On January 8, 2006, M.J., S.C., and M.C., the three foster children who had been placed with Respondent in November and December 2005, were still living in Respondent's home. On January 8, 2006, a child protective investigator with the Department conducted a home study of Respondent's home. The purpose of the home study was to determine whether Respondent's home was a safe placement for her two grandchildren, and, if so, should the grandchildren be placed with Respondent. A placement for the two children was necessary because they had been taken from their mother, Respondent's daughter, for alleged abuse, neglect, or abandonment. The child protective investigator completed the home study on January 8, 2006, and reported the information she obtained during the home study on a seven-page Department form titled, "Caregiver Home Study." The completed Caregiver Home Study document was signed by Respondent and her son-in-law, Richard Davis, on January 8, 2006. Two categories included on the Caregiver Home Study form required Respondent to provide information regarding members of her household. One of the categories on the form required Respondent to provide the names of adults living or frequently in the prospective caregiver's home. The other category required that Respondent also list or provide the names, sex, and ages of children living in her home. On the Caregiver Home Study form, Richard Davis, Respondent's son-in-law, was listed as an adult who lived in or was frequently in Respondent's home. Based on information Respondent provided to the child protective investigator on January 8, 2006, the child protective investigator recorded on the Caregiver Home Study form that there were two foster children living in Respondent's home, A.C. and his brother, M.C. On January 8, 2006, in addition to A.C. and M.C., there was a third foster child, M.J., also living with Respondent. However, although there were three foster children living with Respondent on January 8, 2006, she never told the child protective investigator that M.J. was living in her home. Therefore, M.J. was not listed on the Caregiver Home Study form as a child living in Respondent's home. The Caregiver Home Study form required that Mr. Davis, the other adult living or frequently in the prospective caregiver's home, and Respondent sign the completed form. Both Respondent and Mr. Davis signed the Caregiver Home Study form on January 8, 2006. By signing the form, both Respondent and Mr. Davis acknowledged that to the best of their knowledge, "I have given the Department truthful information on all questions asked of me." On March 14, 2006, the assigned caseworker for A.C. and his brother M.C., two of the three foster children in Respondent's home, made an unannounced home visit to Respondent's home to check on those two children. During this visit, the case worker observed A.C. and M.C., as well as two other children there. The other two children the caseworker observed were Respondent's grandchildren who had been placed in Respondent's home after the Caregiver Home Study was completed on January 8, 2006. Respondent's two grandchildren had been placed with her since January 2006 and were still living with her on March 14, 2006. However, during the case worker's unannounced visit on March 14, 2006, Respondent told the caseworker that the two grandchildren did not live with her, but that she was babysitting them until their mother got off from work. After the March 14, 2006, visit to Respondent's home, the caseworker searched HomeSafe Net to determine the status of Respondent's grandchildren. That search revealed that the grandchildren were actually sheltered and living with Respondent. The caseworker also contacted an employee of the Safe Children Coalition, an agency which has a contract with the Department, to obtain information regarding the status of Respondent's grandchildren. An employee with Safe Children Coalition confirmed that the Sheriff's Office had placed Respondent's grandchildren with Respondent on January 8, 2006, and that, as of March 14, 2006, Respondent's grandchildren were still living with her. At the time of the March 14, 2006, 30-day visit, and at no time prior thereto, Florida Mentor was unaware that Respondent's grandchildren were living with Respondent. Respondent never notified Florida Mentor or the Department that her grandchildren had been placed with her and were living in her home. By failing to notify the Department or Florida Mentor of the change in the family composition, the people living in the home, Respondent violated the terms of the Bilateral Agreement. In order to provide for the safety and health of all the children placed in Respondent's care, it is imperative that the agency placing the foster children be immediately advised of any potential or actual change in the family composition, those living in the home. Since being licensed as a foster parent in Florida, Respondent repeatedly disregarded her obligation to advise the foster care agency of important and required changes. In three instances, Respondent failed to inform the appropriate agency of the changes in the composition of persons living in her home. The second and third incidents occurred after and while Respondent was licensed by Florida Mentor, after she had been specifically advised of the importance and need to communicate and be honest with the foster care agency and to adhere to the agency's policies. First, Respondent failed to advise Camelot staff when T.'s baby was born, and Respondent allowed T. to bring her newborn baby to Respondent's home to live. Respondent ignored or disregarded the directive of Camelot staff, who had told her that T.'s baby could not live in Respondent's home because of the sexual history of D., a foster child placed in Respondent's home. Respondent testified that D. was not in her home on February 1, 2005, when T.'s newborn baby was brought home, because Camelot had placed D. in respite care. According to Respondent, D. returned for one day, before he was permanently removed from her home and placed in another foster home. Respondent's testimony, discussed in paragraph 45 above, is not credible and is contrary to the competent evidence which established that D. was removed from Respondent's home on February 7, 2005, and then placed in another home. Even if D. were not physically in Respondent's house when T.'s baby was there, because D. was still a foster child placed in Respondent's home, she was responsible for notifying the Department of the change in the composition of her household. However, Respondent failed to notify Camelot or the Department and, in doing so, violated a Department rule and a specific directive of the foster care agency. In the second incident, Respondent failed to disclose to the child protective investigator that she had three foster children. Respondent testified that she was not untruthful to the child protective investigator about the number of foster children who were living in her home. According to Respondent, she never said how many foster children lived in her home. Instead, Respondent testified that the child protective investigator made that presumption after she (the investigator) saw two "yellow jackets" (files about the foster children) on a table in Respondent's house. Respondent's testimony, discussed in paragraph 47, is not credible and ignores the fact that Respondent signed the Caregiver Home Study form indicating that she had only two foster children living in the home. Moreover, having served as a foster parent for about ten years and in two states, Respondent knew the importance and significance of providing accurate information regarding the composition of the family and how that information might impact additional placements (i.e., the placement of her grandchildren) in Respondent's home. In the third instance, while licensed by Florida Mentor, Respondent failed to notify that agency or the Department of a change in the family composition (i.e., who is in the home) that occurred on January 8, 2006, when Respondent's two grandchildren were placed in her home. The agency first learned that Respondent's grandchildren lived with her only after a case worker made an unannounced visit to Respondent's home on March 14, 2006, and saw Respondent's grandchildren there, and later verified that the grandchildren were living with Respondent. Respondent does not deny that she failed to notify the Department that her grandchildren were living with her. However, Respondent testified that she never told the case worker that her grandchildren did not live with her and that she was babysitting them while their mother worked. This testimony by Respondent is not credible and is contrary to the credible testimony of the case worker and the supporting documentary evidence. Respondent was aware of the policy that required her to immediately notify the Department or foster care agency of a potential change in family composition. In fact, Respondent signed a Bilateral Agreement in which she agreed to provide such notification to the Department or the Department's representative. Nonetheless, on two occasions, after being licensed by Florida Mentor and having foster children placed in her home, Respondent failed to notify the Department of actual changes in her family's composition. Respondent deliberately violated the terms of the Bilateral Agreement that required her to notify the Department or the foster care agency of any potential, and certainly any actual, changes in her family composition. This provision is designed to better ensure the health and safety of the foster children placed with foster parents, such as Respondent. There is no indication that the children placed in Respondent's home at the time relevant to this proceeding were harmed or injured. Nonetheless, the harm which the Department's policy is designed to prevent is not only possible, but more likely to occur when the composition of the foster parent changes and the Department is not notified of that change. Without such knowledge, the Department lacks the information it needs to make decisions regarding the placement and/or continued placement of foster children in a particular foster home. As a result of Respondent's failing to provide information relative to her family composition, she also failed to provide information necessary and required to verify her compliance with the Department's rules and regulations.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Department of Children and Family Services, enter a final order revoking Respondent, Delores Wilson's, foster care license. DONE AND ENTERED this 23rd day of February, 2007, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of February, 2007.
The Issue Whether Petitioners, K.W. and L.A.W., should be granted a license to be foster parents.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of facts are made: Petitioners are a married couple who applied to Respondent for a foster home license. Petitioners have three children. The background investigation conducted by Respondent revealed reports of incidents of domestic violence and battery involving Petitioners and their children. On October 4, 1999, police officers responded to Petitioners' home after receiving a report of domestic violence. The officer's investigation revealed that one of the Petitioners, L.A.W., had been battered by her son. The child had been involved in pastoral counseling for his aggressive behavior. Petitioner, K.W., advised the police officer that the child, W.A.W., would be moving from the residence because of his continuing inappropriate behavior. On April 7, 2002, another incident of domestic violence was reported and investigated. On this occasion, the two younger children of Petitioners were involved in an altercation that resulted in Petitioner, K.W., being rendered unconscious by a blow to the head with an object delivered by one of the children, C.W. C.W. was arrested for aggravated battery. In February 2003, Petitioners desired to keep a six- month-old, unrelated child in their home. The child was placed in the home contingent on C.W.'s moving from the home and not residing in the home. Petitioners agreed to this contingency of placement, and the child was placed in Petitioners' home. On November 5, 2003, Petitioners applied to be licensed as foster parents. Ten days after Petitioners applied to be licensed, another incident of domestic violence occurred. On November 15, 2003, two of Petitioners' adult children got into a fistfight which resulted in one having a broken nose. As a result, W.A.W. was arrested. At the time of the altercation, W.A.W., 21 years old and the oldest child who had moved out at an earlier time as a result of his behavior, was residing at Petitioners' residence. Although the police report indicates that the incident occurred at Petitioners' residence, the testimony indicated that it occurred "down the street." All three of Petitioners' children continue to reside locally and frequent their parents' home. Petitioners are highly recommended by a representative of The Children's Home Society, a Guardian ad Litem, and their pastor. Respondent has the responsibility of placing foster children in a safe setting. But for the behavior of their children, Petitioners would qualify for licensure. As long as Petitioners' children frequent Petitioners' residence, any child placed in that residence is at risk. As a result, Petitioners are not qualified to be licensed as foster parents.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services enter a final order denying the foster care license application of Petitioners. DONE AND ENTERED this 12th day of January, 2005, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of January, 2005. COPIES FURNISHED: Thomas J. Thompson, Esquire Thomas Thompson, P.A. 100 South Washington Avenue Titusville, Florida 32780 Richard Cato, Esquire Department of children and Family Services 400 West Robinson Street, Suite S-1106 Orlando, Florida 32801-1782 Paul Flounlacker, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
The Issue Whether Petitioner’s request for a foster home license should be denied due to her alleged failure to comply with foster care licensing requirements.
Findings Of Fact Since 2006, Petitioner has held a foster care license, issued by the Department through Citrus, which is a child placing agency ("CPA"). Since becoming a foster parent, there have never been any concerns raised as to the care Petitioner provided to the foster children. Every year, Petitioner entered into a Bilateral Service Agreement with Citrus. The Agreement identifies the responsibilities of both the foster parents and Citrus on behalf of the children served in the foster care program. Under the heading “Foster Parent Responsibilities to the CPA” the Bilateral Service Agreement provides that the foster parent is required: To notify the CPA immediately of a potential change in address, living arrangements, marital status, family composition (who is in the home), employment, significant health changes or any other condition that may affect the child’s well-being. To notify the CPA promptly of all contacts the family or any member of the home has with police or any law enforcement agencies. In the summer of 2010, Citrus sent a letter to all foster parents reminding them that all family members or visitors who frequent the home on a daily basis, or sleep overnight, or have constant contact with the foster children, must have background checks completed. In the fall of 2010, for the annual review for the upcoming year of 2011, Citrus conducted a home study, which included an announced visit and inspection of the home. The Citrus consultant who conducted the home study recorded that Warren Clark (Clark), Petitioner’s son, was living in the home. Petitioner’s daughter was listed as a family member that did not live in the home and was not a frequent visitor. She conducted a background screening on Clark, and discovered that Clark had been arrested twice for battery/aggravated assault charges in May, 2010. If Petitioner’s daughter had been listed as a household member or frequent visitor, the consultant would have conducted background screening on the daughter as well. During her announced visit, the consultant saw Clark’s room, and only noticed male belongings. She did not see any kind of female items, such as jewelry, makeup, or female clothing. Petitioner never reported Clark’s arrests to Citrus. At the hearing, she testified that she was unaware of her son’s arrests, and was only made aware of the arrests when the Citrus consultant told her about them. Her son testified that he had never told his mother about the arrests because he was embarrassed. The undersigned does not find this testimony credible, as it is self-serving in nature and is not plausible, given that Petitioner’s son lived with Petitioner and was arrested twice in one month. It was ultimately Petitioner’s duty to be informed of any involvement between a household member and law enforcement, and to promptly notify the Department. On January 27, 2011, a foster care licensing staffing was held. Petitioner agreed to have her son move out of her home, due to the nature of the arrests. To memorialize the agreement reached during the meeting, Petitioner signed a statement indicating that she would have her son move out of the foster home, and that she understood that if her daughter was going to be a frequent visitor, her daughter needed to be fingerprinted. The statement also indicated that any violation of this agreement might result in revocation of her foster home license. This statement was dated February 22, 2011. During the exit interviews of two of Petitioner’s foster care children, the children reported that Petitioner’s daughter lived at the foster home. Citrus and the Department conducted an unannounced home visit on March 10, 2011. Dulce Pupo, a Citrus Foster Care Licensing Supervisor, and Ada Gonzalez, a Department Licensing Specialist, conducted the visit. Present at the home were two foster children, Petitioner, Petitioner’s daughter, and a tutor for one of the foster children. One foster child, who was approximately 12 years old, told Ms. Gonzalez that Petitioner’s daughter lived in the home, and pointed out her bedroom. When Ms. Gonzalez approached the room that had been indicated, Petitioner asked her not to enter that room, because it was messy. Ms. Gonzalez entered the bedroom, and found items that belonged to a woman; she photographed women’s jewelry, skin products, perfumes, women’s clothing, women’s shoes, and a curling iron that she saw in the room. Petitioner told Ms. Gonzalez that the items were her daughter’s items, but that her daughter did not live at the foster home. On March 11, 2011, a staffing was held. Petitioner attended and admitted that her daughter was living at her home. At the hearing, Petitioner explained that during this staffing, she was very upset, and misspoke when she stated that her daughter lived in her foster home. She, did, however, admit that her daughter was a frequent visitor, and that she should have reported that fact to Citrus. On May 9, 2011, the renewal of Petitioner’s foster care license was denied by the Department.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Children and Families enter a final order finding that Petitioner violated section 409.175(9), Florida Statutes, and deny Petitioner’s request to renew her foster home license. DONE AND ENTERED this 27th day of October, 2011, in Tallahassee, Leon County, Florida. S JESSICA E. VARN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of October, 2011.
The Issue The issue 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 Whether denial of Respondent's re-licensure application as a Foster Care Home for the reasons stated in the Department's denial letter of October 30, 2000, was appropriate.
Findings Of Fact Based upon observation of the witnesses and their demeanor while testifying, the documentary materials received in evidence and the entire record complied herein, the following relevant facts are found: Under Section 409.175, Florida Statutes (2001), the Department of Children and Family Services is the State Agency responsible for evaluating, qualifying, licensing, and regulating family foster care homes. Petitioner, a single male, previously employed with an abused children agency in Broward County, Florida, was granted a foster care parent license by the DCF's Foster Care Licensing unit effective August 10, 1999, through November 10, 1999. A second child specific foster home license for G.K. was issued to Petitioner, effective from March 3, 2000, through August 10, 2000. DCF takes the position that Petitioner is not eligible for re-licensure as a family foster home primarily because he exhibited "poor judgment" relative to a single medical treatment, taking the temperature of an eleven-year-old male foster child through his rectum during the month of August 2000. DCF further alleges that Petitioner has willfully violated specific statutes and rules relating to the conduct and maintenance of the foster home. Those alleged violations are specified in the licensure denial letter dated October 30, 2000, from the DCF to Petitioner. Nicara Daniels is a foster care licensing unit worker with the DCF since November 1999. Ms. Daniels had on-the-job- training and some Professional Development Center Training for new employees. In the licensing unit, Ms. Daniels had training in physical abuse, sexual abuse, drug abuse, and emotional abuse toward children. The DCF used Ms. Daniels to provide testimony regarding each violation as they appeared in the letter of denial. Herein below the allegations are chronologically addressed. Medication and cooking wines in Petitioner's bathroom. On or about July 31, 2000, a period when Petitioner was licensed, Ms. Daniels, Child Protection Investigator assigned Petitioner, made an unannounced visit to Petitioner's home during a period when Petitioner was medicating himself. During her walk through Petitioner's bedroom she entered his bathroom and saw Petitioner's medication for his diabetes on the bathroom shelf along with several bottles of cooking wines. Ms. Daniels acknowledged that she observed the cooking wines in the bathroom. Along with bottles of medication she also observed the lock box in which Petitioner kept his medications and cooking wines when not in use. The door to Petitioner's bedroom and bathroom each had operative locks on them. Ms. Daniels knew that Petitioner took medication for his diabetic condition prior to this inspection and she acknowledged having no experience with the use of cooking wines. Rule 65C-13.011(14)(a) and (b), Florida Administrative Code, requires all medication, poisonous chemicals, and cleaning materials to be in a locked place and inaccessible to children, and that alcoholic beverages should be stored out of the reach of small children; with the recommendation that these beverages be kept in a locked place. Ms. Daniels admitted that for the children, all of whom were 11 years or older, to have access to the medication or cooking wines, they must enter the bedroom, go into the bathroom and open the lock box. There is no evidence presented of any foster care child having access to Petitioner's bedroom, bathroom or the locked medicine box at any time. In making the foregoing finding, I have considered Ms. Daniel's testimony that she knew Petitioner was on medication. Ms. Daniels, however, never questioned the children whether they entered or attempted to enter Petitioner's bedroom at any time when he was not present. I find the mere presence of medications and cooking wines in Petitioner's bathroom, absent other evidence, is not a violation of the cited rule. John Snider in Petitioner's Foster Care home. Ms. Daniels testified that during an early morning visit on an unspecified date in July of 2000, she observed a young man, John Snider, in Petitioner's home. After she advised Mr. Snider had to be screened, Petitioner followed the DCF's process and a screening application for Mr. Snider was submitted to the Department. The Department screened and cleared Mr. Snider and advised Petitioner and Mr. Snider by letter on August 21, 2000. Rule 65C-13.010(4)(g), Florida Administrative Code, requires that the foster care parent notify the department of the presence of such person. Rule 65C-13.007(1), Florida Administrative Code, requires screening for "all persons that provide respite care in the . . . home on an overnight basis must be screened." Rule 65C-13.009(6)(a)5., Florida Administrative Code, requires a criminal records check for "all persons 18 years and older residing in the . . . home." Petitioner, during a telephone conversation with Ms. Daniels on July 31, 2000, informed her that Broward Juvenile Justice placed Mr. Snider in his home on July 27, 2000. It is Ms. Daniels' opinion that a four-day period between entry and notifying DCF is not reasonable notification. This "unreasonable" delay formed the basis for violation of the cited rule, notwithstanding the particular circumstances. Rule 65C-13.007(1), Florida Administrative Code, which requires "all persons that provide respite care . . . must be screened.” I find Ms. Daniels' opinion that four days is not "reasonable" notification not based upon any protocol, policy or rule of the DCF. In making the foregoing finding, I have considered the following. Petitioner informed Ms. Daniels by telephone that there were matters to discuss; however, the discussion took place four days later when Ms. Daniels was available. The Department of Juvenile Justice for Broward County placed Mr. Snider in Petitioner's home. After submitting an application, Mr. Snider was screened and cleared by the DCF. Considering the evidence as a whole, I find Mr. Snider's presence in Petitioner's home, under authority of the Broward County Juvenile Justice unit, and with telephonic notice to the DCF's licensing unit worker four days after entry into the home is not unreasonable, under the circumstances. Home Department's placing of T.J. in Petitioner's Foster Sometime during the first week of August 2000, Robert Mistretta, Department's child protection investigator and T.J.'s initial case worker, removed T.J. from his family and sought overnight foster care for him. Mr. Mistretta, aware of T.J.'s family situation, his medical, physical, emotional, and sexually abusive history sought a foster care home with those factors in mind. The Department's placement unit instructed him to take T.J. to Petitioner's home for an overnight stay. Mr. Mistretta took T.J. to Petitioner's home with the intention of an overnight stay and reassessment of the situation the following morning. After discussion with Petitioner of T.J.'s need for an overnight stay, Petitioner agreed. Mr. Mistretta chose not to provide Petitioner with information regarding T.J.'s medical, social, physical, emotional, or abusive family history. However, Mistretta gave Petitioner the DCF's emergency pager phone number [570-3081] for use during non-working hours and for emergencies should the need arise. Rectal Temperature Taking What had begun as an overnight stay resulted in a permanent placement and on or about August 6 or 7, 2000, T.J. became ill. His illness began during the day and continuing into the night. According to Petitioner, T.J. exhibited symptoms of a cold or flu, including fever, chills and headache. During the night, he was restless, tossing and turning in his sleep. Petitioner, having no medical history on T.J., became concerned about T.J.'s condition. He made several calls to the Department's emergency pager number [570-3081] provided him by Bob Mistretta, without success. Petitioner then attempted to contact Dr. Stuart Grant, a pediatrician, to no avail. Petitioner thereafter attempted to use his MAPP training first aid guide provided by the Department, but found those instructions unclear. Petitioner then sought information concerning fever and temperature taking from the internet. During the night while T.J. was asleep, Petitioner used a rectal thermometer to take T.J.'s temperature, causing him to awaken suddenly, somewhat startled. Petitioner talked with T.J., explained his concerns with his condition and the reason for taking T.J.'s temperature in that fashion. T.J. responded in a positive manner and went back to sleep. The following morning, Petitioner contacted Mistretta and explained what had happened with T.J. the night before. Mistretta took T.J. aside and privately inquired if he understood "good" touching from and "bad" touching. T.J. stated he understood the difference. When asked about Petitioner's manner of touching him while taking his temperature during the night, T.J. affirmed that Petitioner's touching was a "good" touch and not a "bad" touch. Mistretta, based upon his experience working with children who had suffered abuse, accepted T.J.'s response as true. Satisfied that no "bad" touching occurred during the rectal temperature taking process, Mistretta reported the incident to his supervisor, including his conclusion that nothing sexually or abusive had occurred and concluded his report in part as follows: "This case is closed with no indicators. There is no maltreatment that addressed a bad choice of judgment by a caretaker. There are licensing [unit] concerns regarding Mr. Marlowe's choice to use a rectal thermometer on an 11 year old child." (Emphasis Added) Mr. Mistretta testified that his understanding of the sequence of events the night T.J. was ill were: T.J. was running a high fever and had trouble falling asleep. Petitioner tried cold cloths to reduce the fever that, according to Petitioner's monitoring, was getting too high. Since T.J. was having trouble sleeping and once he did sleep, Petitioner thought a rectal thermometer would be best to try not to awaken him, Petitioner chose to use that form of temperature taking. T.J. reacted with a little bit of pain. Based on Petitioner's history of dealing with sexually abused kids, that reaction is not normal. When Petitioner talked with him about what happened, T.J. disclosed his history to Petitioner. In the process of making the decision as to the appropriate treatment, Petitioner consulted with a Johnson and Johnson book and several medical web sites. The documents from the medical web sites were subsequently provided by Petitioner. I find Mr. Mistretta's testimony credible regarding his conversation with Petitioner immediately after the T.J.'s incident. Following the above, Ms. Mistretta, in addition to his duty as T.J.'s caseworker, was also assigned by his supervisor to investigate a hotline abuse report. Mr. Mistretta investigated the alleged abuse narrative report and found no indication of maltreatment. He recommended the hotline abuse report be closed. Upon being presented with the hotline abuse report narrative with suggestions and allegations of sexual abuse, Mr. Mistretta testified: "The information generated in this narrative in the reporter page that has reporter information states that the CPI, Robert Mistretta, told reporter about allegations. So the source of this report is me. The reporters made their own clarifications, answered their own questions regarding some things instead of calling me back to clarity, talked amongst themselves, found out that they didn't like what happened, and some of the narrative is not true. It is blown out of the water, if you would. The narrative was started by a report. When Mr. Marlowe talked to me, I talked to somebody who talked to somebody, who talked to somebody. The next thing you know we have sexual abuse. The narrative is not true. I did not agree with the removal of T.J. (Emphasis Added) I find Mr. Mistretta's testimony on this issue to be consistent and credible. In making the foregoing finding, I have considered the testimony of the DCF's other witnesses, none of whom had personal knowledge of the abuse report contents. However, Mr. Mistretta is the only witness with personal knowledge of events acquired in his positions as T.J.'s initial caseworker, his placement agent, the interviewer of T.J. and Petitioner, and the originator of the initial report. I have considered the fact that this incident occurred during the week of August 6-12, 2000. Petitioner's license expired on August 10, 2000. However, the DCF did not remove T.J. from Petitioner's home until September 6, 2000, almost a month later. I have also considered Ms. Daniels' testimony that during Petitioner's unlicensed period, DCF's placement unit continued to place children in Petitioner's home. I have also considered the deposition of Dr. Patricia Buck, M.D., pediatrician and Child Protection Team member for District 14 [Polk, Highland and Hardee counties], who was qualified as an expert in pediatrics and child abuse. After her review of documents provided by DCF and given the circumstances by DCF's counsel and Petitioner, Dr. Buck opined that use of a rectal thermometer would not have been her recommendation, had she been the care provider. According to Dr. Buck, anal temperature taking as a medical procedure is not abuse. Adding that the more medical history one has on a patient, the less likely a mistake in patient treatment. The evidence as a whole, including Mistretta's testimony and Dr. Buck's opinion, is persuasive as it relates to the issue of the circumstances and the "appropriateness" of the rectal temperature taking procedure. Accordingly, the testimony of Ms. Daniels, the licensing unit informs placement and other Department units of those parents who were licensed, parents who were not licensed or parents whose licenses had expired. She recalled attending the staffing meeting regarding the T.J. temperature incident and recalled informing staff that Petitioner was not a licensed foster care home after August 10, 2000. According to Ms. Daniels, placing children in a non-licensed home is not permissible. However, its her testimony that in this case, DCF's placement unit placed children in Petitioner's home during a period of time he was not licensed, and during the time T.J. was in Petitioner's home because of [DCF] "it being in a crisis situation with the number of homes we had." In making this finding, I have considered both the DCF's need for foster care beds and its concern for the safety of foster care children. I have also considered the DCF's use of Petitioner's home when they were "in a crisis situation with the number of homes we had." Screening of Ms. Scott Regarding the screening of Ms. Scott, Ms. Daniels testified Petitioner informed her that the screening application papers for Ms. Scott were submitted to the Department and had apparently come up missing. Ms. Daniels acknowledged that she had no evidence to support her conclusion that Ms. Scott was a respite sitter for Petitioner's foster care children; that she had never checked with the DCF to ascertain whether or not Ms. Scott had been screened. Not inquiring whether Ms. Scott had been screened renders Ms. Daniels' testimony questionable. I find Ms. Daniel's testimony regarding Petitioner's failure to provide the Department with Ms. Scott's application for screening not credible. Unwillingness to Provide Information on Mary Poe At some unspecified date, Ms. Daniels recalled she had a conversation with Petitioner regarding his next door neighbor, Ms. Poe, someone who would "check" on the foster children from time to time when Petitioner was late returning from work. Ms. Daniels did not recall if Ms. Poe entered Petitioner's home or gave the key to the children to enter in the home on days he was late returning from work. Ms. Daniels recalled only that, Petitioner's attitude regarding screening Ms. Poe was "uncooperative" and "defiant." During cross-examination Ms. Daniels could not recall the conversation with Petitioner when she was informed that Petitioner's condominium covenants required the manager to have a key to his apartment in case of emergencies. She did recall that Petitioner told her Ms. Poe was the mother of the condominium manager. Ms. Daniels recalled when she voiced concern with the situation Petitioner retrieved his key from Ms. Poe and returned it to the condominium manager for pick up by the children when they returned from school. I find Ms. Daniel's testimony regarding Petitioner's unwillingness to provide information concerning Mary Poe evasive, inconsistent and not credible. In making the foregone finding, I have considered Ms. Daniel's inability to recall facts, dates, times, places, regarding the matter to which she testified. I have considered the fact that Petitioner, when Ms. Daniels voiced concern, corrected the situation by removing the key from Ms. Poe's possession, thereby removing the need for screening by the Department. I have also considered Ms. Daniels' inability to recall facts regarding an incident the DCF considered an intentional refusal by Petitioner to "cooperate" and "communicate" with Department's staff. Confidentiality in Keeping a Life Book on Foster Care Children Ms. Daniels testified that Petitioner informed her the foster care children had a computer life book (photo album) website. After being directed to the website by Petitioner and after viewing the website, Ms. Daniels concluded Petitioner had "released" the names and photos of the foster children on the websites. Without providing a rational basis, she testified that keeping required foster child life books in an electronic format is, in and of itself, inappropriate. She further testified that placing the names and photos on the web site violated DCF's rule of confidentiality. Rule 65C.010(1)(c)4., Florida Administrative Code, requires the foster care parent to maintain the children's records which ensures confidentiality for the child and the biological parents. Petitioner maintained that each child made an individual and personal decision to use the computers he made available in his home. To his knowledge each child placed his personal information, name, foster care status, photos, etc., on the web sites during chats and exchange of information with others users in various chat-room conversations. Ms. Daniels never inquired of the foster children whose names and status were found on the book of life web sites to ascertain whether they or Petitioner placed personal information on the web site. I find her testimony on this issue to be questionable, but reliable. In making the foregoing findings, I have considered Ms. Daniels' testimony and the absence of evidence in support thereof. I find Petitioner's testimony that he never divulged any confidential information on the web sites regarding foster children in his care credible, but not persuasive. As the custodial parent, Petitioner has the ultimate responsibility to maintain and protect the confidentiality of the children in his care and under his supervision. Permitting children of divulge personal/confidential and potentially endangering information on the web site is a breach of Petitioner's parental responsibility. Removal of G.K. from medication prescribed by a Doctor DCF alleged that Petitioner removed G.K. from prescribed medication in violation of Rule 65C-13.010(1)(b)7.a, Florida Administrative Code, which imposes on the foster parent the responsibility for dispensing the medication as prescribed by the physician and recording the exact amount prescribed. In support of this allegation, the Department offered the testimony of Ms. Daniels. Ms. Daniels, by her admission, had no personal knowledge regarding G.K. and Petitioner's actions with G.K.'s medication. Her testimony was based upon what she had previously read in the file prepared by Stephanie Gardner, DCF's Representative and Petitioner's caseworker before the case reassignment to Ms. Daniels. When Ms. Daniels initially inquired of Petitioner about G.K.'s medication, he informed her that before he discontinued G.K.'s medication, he consulted with a nurse who in turn consulted with the prescribing doctor about the matter. Based on the response received from this consultation he discontinued G.K.'s psychotropic medication. Ms. Daniels based her conclusion of unauthorized discontinuance of medication on her conversations with Ray Mallette, a Department mental health counselor. In his letter to Petitioner, Mr. Mallette stated, in pertinent part: "To my knowledge, G.K. was not taking any psychotropic medication while under my care. Treatment was terminated in June of 1999, by mutual agreement, as no further care needed." Ms. Daniels testified that during her conversations with Mr. Mallette she recalled his stating that he did not authorize discontinuation of G.K.'s medication. Ms. Daniels could not state with any certainty if Mr. Mallette's use of the term "medication" included psychotropic medications or other medications. Petitioner provided Ms. Daniels the name of the Broward County physician with whom Petitioner had conferred through his nurse and who authorized taking G.K. off medication. There is no evidence that Ms. Daniels attempted to verify whether the medical persons provided by Petitioner had given instructions to take G.K. off psychotropic medications. I find Ms. Daniels' testimony on the issue of G.K.'s medication to be incomplete, confused and, not creditable. In making the foregoing finding, I have considered Mr. Mallette's letter reflecting that he is not a medical doctor or dentist; therefore, he cannot prescribe nor discontinue a prescribed medication to a patient. I. Use of profanity and general unwillingness to work cooperatively with the Department Rule 65C-13.010(1)(c)1., Florida Administrative Code, requires foster care parents to "work" cooperatively with the counselor as a member of a treatment team in seeking counseling, participating in consultation, and preparing and implementing the performance agreement or permanent placement plan for each child. In support of the above allegations, the DCF offered only the testimony of Ms. Daniels who stated: ". . . [A]lso during a conversation Mr. Marlowe used profanity. As far as [sic] concerned as just being uncooperative and maybe someone being uncooperative meaning there's something else behind it as far as, you know, not one to follow the rules that are set by the Department." I find the above testimony of Ms. Daniels to be vague and questionable. In making the foregoing finding, I have taken into consideration the fact that Ms. Daniels could not recall the date, time, place, words, or the circumstances of her conversation with Petitioner in which the alleged profanity was uttered. I have also taken into consideration the testimony of Ms. Stephanie Gardner, regarding Petitioner's uncooperativeness. Ms. Gardner, acknowledging that she did not know, did not remember nor did she recall; then went on to state: " . . . that at some unknown time and date, Petitioner stated, mentioned or indicated some information about a child or foster child that he had parented before. I don't know if it was Gary or one of the children that were actually at the Broward County at the Outreach Broward facility where he worked, but it was some information, and it was kind of alarming." I find the testimony of Ms. Daniels and the testimony of Ms. Gardner regarding the alleged profanity and regarding alleged uncooperativeness of Petitioner with the DCF questionable. Excluding the foregone evidence, other testimony regarding Petitioner and his conduct addressing matters that are related to those specific issues raised in DCF's denial letter of October 30, 2000, is neither material nor relevant to issues under consideration in this cause and disregarded.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is
The Issue The issue is whether Respondents' foster home license should be revoked because of inadequate supervision of foster children, as alleged in Petitioner's letter dated December 22, 1998.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In this proceeding, Petitioner, Department of Children and Family Services (DCFS), seeks to revoke the foster home license of Respondents, Wendy and David Palmer. In a letter dated December 22, 1998, DCFS alleged that Respondents allowed "foster children to be taken overnight over one hundred miles from [their] home with no supervision from [Respondents] as the licensed foster parents." The charging document went on to allege that their "neglect materially affected the safety and welfare of the children because they were given alcoholic beverages and were allowed to sleep with men." Respondents denied the allegations and requested a formal hearing to contest the proposed action. Their license has remained inoperative pending the outcome of this proceeding. Respondents have operated a foster home around six miles north of Altoona, Florida, since May 1994, caring mainly for teenage females who had "a lot of behavior problems" and had failed in prior placements. The home is licensed by DCFS under Section 409.175, Florida Statutes. Children were placed in their home by the Lake County Boys Ranch, a private organization which had a contract with DCFS to provide that service. On an undisclosed date, but prior to August 1998, three females, M. G., G. M., and D. W., were placed in Respondents' home. At that time, each of the girls was around fifteen years of age. G. M. had almost fifty prior placements, while D. W. had failed in "several" other placements. M. G. had also been in a number of "non-relative" placements, but the exact number is unknown. All three had a reputation of being difficult to handle and were considered "high-risk." None testified at the final hearing and thus any comments they may have made to a DCFS investigator are hearsay in nature. Respondents' daughter, Jamie, who was 21 years old when the events herein occurred, had been approved to serve as a respite provider at the foster home. This meant she could assist her parents by transporting the children to medical or visitation appointments and provide supervision in the home for a limited period of time. Examples of her duties included transporting the three girls to doctor's appointments, to lunch, or to the beach for recreational purposes. She considered her relationship with the girls to be "like sisters." On August 3, 1998, Jamie decided to travel to Hampton in Bradford County, Florida, in an extended cab pick-up truck to retrieve the remainder of her personal belongings from the residence of her former boyfriend, Scott, a 22-year-old male. Hampton is approximately 83 miles from Altoona, but the distance between the foster home and Scott's residence was no more than 75 miles or so. The one-way trip less took less than an hour and a half. Jamie spoke with her mother around 10:30 or 11:00 a.m. that day and received permission for the three girls to accompany her on the trip. The trip was perceived by Wendy Palmer as a recreational trip, and one that would enable the girls to build trust in the family since it allowed them to take a short trip away from their home and to return later that same day. Contrary to the charging document, this was not an illegitimate purpose, and Respondents' authorization of the trip at that point in time could not reasonably be forseen as an act which would materially affect the girls' health or welfare. Jamie was told to go straight to Hampton, pack her belongings, and then return. Jamie eventually departed the foster home between 2:00 p.m. and 2:30 p.m. and arrived at Scott's residence shortly before 4:00 p.m. Although Scott was not at home when the group first arrived, he returned shortly thereafter with "two buddies," both adult males. A verbal argument between Scott and Jamie ensued, and Scott remained at the residence for several hours while the two discussed why their relationship had gone sour. Scott's two friends, however, remained outside the residence by his truck. Just before 6:00 p.m. Jamie telephoned her mother to advise that she had safely arrived in Hampton, that she was packing, that Scott was on the premises attempting to change her mind about leaving him, and that it looked like it was going to rain. Scott and his friends left a few minutes later, and even though Scott had a key to the residence, he and his friends did not return that evening. Before 9:00 p.m., Jamie again telephoned her mother to advise that it was storming, that she was upset after arguing with Scott, and that she was afraid to drive home in rainy weather at that hour with the girls. Accordingly, she asked permission to remain at Scott's residence that evening and drive home the first thing in the morning. Although Scott's residence was not a licensed, inspected, and approved foster home, Wendy Palmer agreed that under those extenuating circumstances, it was appropriate to remain in Hampton overnight. Wendy Palmer added that she would have driven to Hampton herself to retrieve the girls, but she did not wish to drive on two-lane roads in the rain at that late hour. Wendy Palmer's decision that evening technically violated her duty as a foster parent to provide round-the-clock supervision for the girls in a licensed foster home. Indeed, without the order of a court, foster children are not allowed to stay in an unlicensed home. After talking with her mother, Jamie drove to a local convenience store and purchased two Bud Lights in a can. She returned to the residence and consumed them herself. Contrary to the allegations in DCFS's letter dated December 22, 1998, the girls were not given alcoholic beverages. Also, Jamie did not allow adult males to enter the premises that evening. Further, they did not engage in sexual relations with other men. Indeed, except for the girls and Jamie, there was no one else present, and all four slept in the living room of the residence. Although Jamie allowed the three girls to smoke that evening, this conduct is not cited as a ground for revocation in the charging document. The next morning, Jamie telephoned her mother a third time and advised that they were getting ready to drive back to Altoona. The group returned a short time later. On October 9, 1998, or some two months later, the three girls ran away from the foster home and were eventually picked up by law enforcement authorities in Wildwood, Florida. At that time, D. W. made allegations for the first time that while in Hampton on the evening of August 3, 1998, the group had been given alcoholic beverages by Jamie, that they had engaged in sexual intercourse with friends of Scott, and that Jamie had become intoxicated. These allegations led to an investigation by DCFS and its decision to revoke Respondents' foster home license. They also resulted in a verified report of institutional neglect on November 2, 1998, which is found in abuse report 98-113392. DCFS takes the position that the trip had no legitimate purpose because the girls would receive no discernible benefit from the trip. This assertion has been rejected above. It further contends that the teenagers were placed at risk when Respondents allowed the girls to stay overnight with a respite worker in an unlicensed home. According to DCFS, the appropriate action would have been for the Palmers to advise Jamie to transport the girls to a "public shelter" in the area, or alternatively, for the Palmers to drive to Hampton that evening and pick them up. Because these latter steps were not followed, Respondents violated DCFS protocol, and they committed a negligent act within the meaning of the statute. During the four-year period in which Respondents served as foster parents, they provided outstanding care for foster children who were most at-risk, and all of whom had failed in prior placements. Other than this one incident, there are no blemishes on their record. Moreover, they have the continuing support and confidence of the private agency which makes local placements of foster children pursuant to a contract with DCFS. These considerations, as well as the extenuating circumstances which occurred on the evening of August 3, 1998, should be taken into account in determining whether Respondents' license should be disciplined.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Children and Family Services enter a final order determining that Respondents violated Section 409.175(8)(a)1., Florida Statutes, and that their foster home license be suspended for one year effective December 22, 1998. DONE AND ENTERED this 10th day of June, 1999, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of June, 1999. COPIES FURNISHED: Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John S. Slye, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John N. Spivey, Esquire 14550 U. S. Highway 441 Tavares, Florida 32778 Ralph J. McMurphy, Esquire Department of Children and Family Services 1601 West Gulf Atlantic Highway Wildwood, Florida 34785-8158
The Issue Whether Respondents’ renewal foster home license application should be denied based upon allegations that Respondents violated a foster child’s safety plan, refused to sign a corrective action plan, and refused to work in partnership with Petitioner.
Findings Of Fact The Parties DCF is the state agency responsible for licensing foster care parents and foster homes pursuant to section 409.175, Florida Statutes. DCF administers foster care programs by contracting with third-party private entities. In Circuit 19, which is the geographic area encompassing Port St. Lucie, DCF has contracted with Devereux Community Based Care (“Devereux”) to be the “lead agency” to provide the majority of child services. Devereux, in turn, has subcontracted with Camelot Community Care (“Camelot”), which is licensed as a child placement agency. Respondents, who are husband and wife, are foster care parents in a foster care home licensed by DCF. At all times material hereto, Mr. and Mrs. Arias have fostered children at their home in Port St. Lucie. Respondent, Kathleen Arias (“Mrs. Arias”), does not work outside the foster home. She is a “stay-at-home” foster mom. Over the past 16 years, Mrs. Arias has fostered many children. Mrs. Arias is very loving to the foster children in her care, and she has provided a great benefit to the foster children in her care.2/ Kenneth Strout’s Prior History of Sexually Inappropriate Behaviors Kenneth Strout (“Kenneth”), who recently turned 18 years old, was placed into Respondents’ foster home in 2013. Prior to his placement in Respondents’ home, Kenneth engaged in inappropriate sexual behaviors. As a therapeutic foster child in Respondents’ home, Kenneth received therapeutic services, including therapy, psychiatric services, support, and therapeutic parenting by a trained therapeutic foster parent, Mrs. Arias. Despite receiving therapeutic services, Kenneth continued to engage in inappropriate sexual behaviors while living in Respondents’ home. During the time in which Kenneth lived in the home, he had a history of sexually touching others, exposing himself, and masturbating in close proximity to others. On one particular occasion on September 17, 2014, Kenneth was sitting on the couch watching television, and Mrs. Arias’ sister walked in the room. While she had her back to Kenneth, he dropped his pants, exposed himself to her, and pressed his penis against her buttocks. The Applicable Safety Plan Requirements As a result of this incident, an updated safety plan was developed.3/ The safety plan was signed by Mrs. Arias on October 8, 2014. Mrs. Arias reviewed the safety plan and is aware of the requirements of the safety plan. Specifically, the safety plan requires, in pertinent part: “Client needs to be within eyesight and earshot of a responsible adult, who is aware of and will enforce the safety plan at all times.” The May 28, 2015, Incident at LA Fitness and its Aftermath Against this backdrop, on May 28, 2015, at approximately 8:00 p.m., Mrs. Arias took Kenneth, who was 17 years old at the time, to LA Fitness, a gym facility in Port St. Lucie. Mrs. Arias had a membership at LA Fitness and frequented the facility on a regular basis. Despite Ms. Arias’ knowledge of Kenneth’s inappropriate sexual propensities, Kenneth often accompanied Mrs. Arias to the facility, where he would play basketball on an indoor basketball court, while Mrs. Arias exercised in another area at the facility. During the evening of May 28, 2015, Kenneth had been playing basketball on the indoor basketball court. He left the basketball court and approached Mrs. Arias and told her that he needed to use the bathroom. Mrs. Arias gave Kenneth permission to go to the bathroom. The men’s restroom is located inside the men’s locker room. At this point, Kenneth walked toward the men’s locker room, and entered the men’s locker room through the door leading from a hallway into the men’s locker room. Mrs. Arias did not go into the men’s locker room with Kenneth, nor was Kenneth accompanied by an adult when he entered the men’s locker room. Once Kenneth entered the men’s locker room, he walked to the other end of the locker room to another door, which led to the Jacuzzi area. Kenneth then opened the door from the men’s locker room leading to the Jacuzzi area. At this point, Kenneth observed a female, Concepcion Alvarado, sitting alone in the Jacuzzi. Ms. Alvarado was in her swimsuit. At this point, Ms. Alvarado was relaxing in the Jacuzzi with her eyes closed. After observing Ms. Alvarado for a moment, Kenneth stripped down to his boxer shorts, entered the Jacuzzi, and inappropriately touched Ms. Alvarado on her leg. Upon realizing that somebody touched her leg, Ms. Alvarado opened her eyes, saw Kenneth in front of her, and said to him: “What are you doing, little boy?” “Just get out of my way, or do your own stuff.” Kenneth then touched Ms. Alvarado on her shoulder. At this point, Ms. Alvarado became very angry and said to Kenneth: “Why are you touching me? You’re not supposed to do that.” “Just get out.” Kenneth smiled at Ms. Alvarado as Ms. Alvarado exited the Jacuzzi. Ms. Alvarado then entered the nearby pool. Kenneth followed Ms. Alvarado and jumped in the pool as well. Ms. Alvarado recognized Kenneth because he had engaged in similar inappropriate sexual behavior a week earlier. On the prior occasion, Kenneth and Ms. Alvarado were in the Jacuzzi when Kenneth tried to kiss her and touched her leg. Ms. Alvarado did not report the prior incident. However, Ms. Alvarado reported the May 28, 2015, incident to an LA Fitness employee. Shortly thereafter, law enforcement officers arrived at the facility and arrested Kenneth. Kenneth was taken to a juvenile detention facility where he spent the night. Kenneth was not within eyeshot or earshot of Mrs. Arias or another responsible adult once he entered the men’s locker room on May 28, 2015. Kenneth was not within eyeshot or earshot of Mrs. Arias or another responsible adult when the inappropriate physical contact perpetrated by Kenneth against Ms. Alvarado in the Jacuzzi on May 28, 2015, occurred. The persuasive and credible evidence adduced at hearing establishes that Respondents violated the October 2014 safety plan by failing to ensure that Kenneth was within earshot and eyeshot of a responsible adult at all times when he was at LA Fitness. Had Kenneth been within eyeshot and earshot of a responsible adult at all times on May 28, 2015, while he was at LA Fitness, the incident in the Jacuzzi with Ms. Alvarado would not have occurred.4/ Notably, given Kenneth’s history of sexually inappropriate behaviors, Mrs. Arias knew that she was taking a risk to the public in bringing Kenneth to LA fitness because it was an environment that could be problematic for him. At hearing, Ms. Linda Green, a licensed clinical social worker formerly employed by Camelot, persuasively and credibly explained the difficulties she and Mrs. Arias faced in their efforts to deal with Kenneth’s sexually inappropriate behaviors. According to Ms. Green, a true bond developed between Mrs. Arias and Kenneth. Kenneth referred to Mrs. Arias as “mom,” and he felt like she was his mother. In an attempt to keep the family unit intact, Ms. Green wanted significant “client-directed therapy” and “advocation because the client should have the right to control their life.” On the other hand, Ms. Green was concerned about keeping society safe from Kenneth. In hindsight, Ms. Green candidly admitted at hearing that Kenneth “probably needed institutionalization sooner.” Mrs. Arias recognized her inability to control Kenneth’s sexually inappropriate behaviors and the danger he posed to society prior to the May 28, 2015, incident. Prior to the May 28, 2015, incident, Mrs. Arias requested that Kenneth be placed on a “30-Day Notice.” Kenneth was on a “30-Day Notice” when the incident at the gym on May 28, 2015, occurred. Nevertheless, Kenneth remained in the Respondents’ home as of the May 28, 2015, incident at the gym because Devereux was having difficulty finding a new placement, and Mrs. Arias agreed to keep Kenneth in the home until after the end of the school year. The school year ended the first week of June. Kenneth never returned to Respondents’ home after the May 28, 2015, incident at LA Fitness. Instead, Kenneth was discharged from the foster care program, and placed in a group facility where he has resided ever since. It is anticipated that Kenneth will remain in the group facility until he is 23 years old. Following the incident at the LA Fitness gym on May 28, 2015, DCF undertook an investigation. As a result of its investigation, DCF concluded that the safety plan was violated because Kenneth was not within earshot or eyeshot of a responsible adult when the incident at the gym on May 28, 2015, occurred. DCF’s investigation resulted in a verified finding of abuse against Respondents based on inadequate supervision. Based on DCF’s verified finding of abuse based on inadequate supervision, a corrective action plan was required by administrative rule and prepared for Respondents to execute. A corrective action plan is a document which identifies issues of concern to DCF and how DCF, as an agency, can work together with the foster parent to improve the foster parent’s performance. A corrective action plan serves as a supportive intervention and is not punitive in nature. Respondents refused to execute the corrective action plan because they were concerned that, in doing so, they would admit DCF’s investigative finding of abuse based on inadequate supervision. The persuasive and credible evidence adduced at hearing establishes that Respondents refused to execute the corrective action plan. The persuasive and credible evidence adduced at hearing fails to establish that Respondents failed to work in partnership with DCF.5/ Respondents’ foster care license was due to expire on October 18, 2015. After the May 28, 2015, incident occurred, DCF placed another child under Respondents’ care. Regardless of the incident at LA Fitness on May 28, 2015, DCF intended to re-license Respondents. DCF intended to renew Respondents’ foster care license after the May 28, 2015, incident despite the verified finding of inadequate supervision. DCF was unable to re-license Respondents because they failed to execute the corrective action plan required by rule. Had Respondents executed the corrective action plan required by DCF, Respondents’ foster care license would have been renewed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued by the Department of Children and Families placing Respondents’ foster care license in provisional status for six months, during which time Respondents shall execute the corrective action plan. If Respondents decline to execute the corrective action plan within six months, the provisional license will not be replaced with a regular license or renewed.7/ DONE AND ENTERED this 3rd day of June, 2016, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ 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 3rd day of June, 2016.
The Issue Are the Respondents entitled to renew their license to operate a family foster home?
Findings Of Fact Respondents held Family Foster Home License No. 059520, effective from May 18, 1995 through May 18, 1996. The license was not renewed based upon allegations in this case. At times relevant, Respondents provided foster care to F.J., who was thirteen when the hearing was conducted, to V.K. who was eight when the hearing was conducted, and to F.J. and V.K.'s two younger brothers. The children lived with the Respondents for approximately six and one-half years. Although F.J. is thirteen years old, she is a developmentally disabled child with an I.Q. in the range of 46 to 58. Her mental and developmental age is less than eleven years. On May 30, 1995 an investigation was begun concerning alleged sexual abuse of F.J. by James Comer. This led to the removal of the children from Respondents' home. On May 30, 1995 F.J. described James Comer's sexual misconduct to Brenda Mims, a human services counsellor for Petitioner. At that time F.J. told Mims that James Comer had touched her breast and felt on her. When F.J. described the contact which James Comer had with her, F.J. put her hands on her breast to demonstrate. She did not describe the point in time when this happened. On that date Mims interviewed Mary Comer concerning the allegations by F.J.. Mary Comer confirmed that F.J. had told Mary Comer that James Comer was "bothering her" and F.J. wanted it to stop. Mary Comer indicated that she thought that F.J. was referring to a "tickling incident". Mary Comer told Mims that she had confronted James Comer about the tickling and asked him to stop tickling F.J.. When Mary Comer spoke to Mims, she referred to F.J. coming to her and saying that "Dada" was bothering F.J.. The term "Dada" is the name the children used to refer to James Comer. The children referred to Mary Comer as "Granny". On June 7, 1995 Mims talked to F.J. again. At that time F.J. was concerned that James Comer not be able to find her in her new home. Assurances were given that James Comer could not find her. On this occasion F.J. told Mims that James Comer "would feel on her" and she didn't like it. In this conversation F.J. described fondling James Comer's penis. F.J. stated that James Comer would hit her with his fist sometimes if F.J. wouldn't cooperate with his advances. F.J. described a big roll of money that James Comer would give her if F.J. would cooperate with him. Otherwise James Comer would not give F.J. money. According to Mims, F.J. said that James Comer would give her money if F.J. would "be with him". In the June 7, 1995 discussion F.J. and V.K. told Mims that Mary Comer tried to prohibit James Comer from bothering F.J. and James Comer began to beat Mary Comer. Following such incident, the police were called, but James Comer was not removed from the home. In the June 7, 1995 conversation V.K. told Mims that on one occasion V.K. peeked out the door and saw F.J. lying on James Comer while he was seated in the reclining chair. Deborah Gipple is a licensed mental health counselor who has experience in counseling child victims of sexual abuse or other trauma. Gipple began counseling F.J. in November, 1995 and continued the counseling to the date of hearing. Gipple observed in F.J. conduct which is consistent with a child who has been sexually abused. This included F.J. exposing herself, rubbing against other children, problems in the classroom and at home concerning the need to follow directions, and a distrust evidenced by sneaking about doing things that were not necessary to avoid detection, such as sneaking about and removing food. F.J. told Gipple that James Comer touched between F.J.'s legs and touched her breast. F.J. further stated that James Comer had her lay on top of him. F.J. told Gipple that sometimes James Comer would come in the night and take F.J. from her bed. In these conversations Gipple observed that F.J. was aware that James Comer's actions were wrong. In these discussions F.J. stated a concern about her sister V.K. and the possibility that James Comer would harm V.K.. V.K. was competent to testify when she testified at hearing. On one occasion when V.K. was in the hallway with her brothers at night she looked in the T.V. room and saw F.J. on top of James Comer while he was seated in a reclining chair. V.K. described that F.J. was moving her body and doing "nasty stuff". On another occasion V.K. was outside the house and observed F.J. and James Comer in the T.V. room. As V.K. describes it, F.J. was playing with James Comer while he was sitting down. F.J. was on James Comer's lap. V.K. did not give exact details concerning what F.J. and James Comer were doing. Concerning these two instances, V.K. recalls that Mary Comer was not home on the first occasion. V.K. has no recollection concerning Mary Comer's whereabouts on the second occasion. V.K. had been subjected to corporal punishment by James Comer when living in his home. She also observed James Comer administer corporal punishment to her two brothers. In the June 3, 1996 video that was made to record F.J.'s remarks concerning James Comer, together with statements she made to others, F.J. demonstrates sufficient appreciation of the meaning of the duty and responsibility to tell the truth to warrant a finding that she was competent for that purpose. In the video she describes that James Comer made her touch his "private parts". She did not describe the period of time over which the sexual contacts were made between James Comer and F.J. She did recount how these events had occurred on a number of occasions. On one occasion her clothes were off when James Comer touched her. In the video tape F.J. describes that James Comer had touched her breast and genital area by pointing to those areas on her body. F.J. identified that the occasions when she was inappropriately touched occurred when Mary Comer was not at home. In the video F.J. refers to the fact that she told Mary Comer about being touched by James Comer, but that Mary Comer did not believe her. By October 1995 F.J., V.K. and their brothers had been placed in the foster home of Roberta Graham where they presently reside. While living with Graham, F.J. told Graham that "Dada", referring to James Comer, was touching F.J. in wrong places, that he touched her on her breasts, and that he took her hand and massaged his "private part", referring to his penis. F.J. told Graham that this happened when Mary Comer went out to get drinks. F.J. told Graham that the other children were outside playing and the door was locked and James Comer and F.J. were inside when events occurred. F.J. mentioned to Graham that an incident happened at night when everyone was in bed and "Dada" called F.J. out alone and then the other children, her brothers and V.K. came out of the room. This is the night time incident V.K. testified about. This incident at night occurred when Mary Comer was not at home. F.J. told Graham that on one occasion James Comer removed F.J.'s clothes when she came out of the bathroom after blocking the door to prohibit F.J.'s exit. F.J. expressed concern to Graham that "Dada" was going to turn from doing things to F.J. to doing things to V.K.. F.J. told Graham that she had reported James Comer's actions to Mary Comer in saying that she told "Granny". F.J. stated to Graham that when F. J. told Mary Comer, she, (Mary Comer) said, "If you tell anyone, you will have to leave". F.J. made the remarks about James Comer's inappropriate conduct approximately thirty times to Graham and was consistent about the facts reported. The remarks by F.J. on the video tape and to Mims, Gipple and Graham which have been recited concerning James Comer are credited as true. Following the accusations about James Comer's sexual misconduct directed to F.J., Petitioner through its employees, Esther Tibbs and Judy Parks, met the Respondents on February 5, 1996 to advise Respondents that Petitioner intended to revoke the foster care license. The grounds for seeking revocation were related to the sexual misconduct by James Comer and the use of corporal punishment in disciplining the foster children. In the past, commencing 1988, Petitioner had received complaints concerning the use of corporal punishment by Respondents in disciplining their foster care children. Petitioner through its employees had counseled Respondents about the inappropriateness of corporal punishment. In one instance correspondence was sent to the Respondents on this subject reminding the Respondents that it was inappropriate to use corporal punishment even to the extent of an "occasional slap on the backside. . .under any circumstances". This reminder was sent through correspondence dated March 25, 1993. In 1988, unrelated to the foster children who have been referred to in these facts, Pamela Davis, Guardian Ad Litem for A.L. spoke to James Comer concerning his administration of corporal punishment to that child. James Comer told Davis that he had beaten the child "to beat the devil out of her" and it hadn't worked. He further stated that Davis could take the child from his home. Davis did remove the child from foster care provided by Respondents. On February 12, 1996 Respondents requested a formal administrative hearing to contest the grounds for revoking their foster home license.
Recommendation Based on the facts found and the conclusions of law reached, it is, RECOMMENDED: that a Final Order be entered which denies the renewal of the Family Foster Home License for Respondents. DONE and ENTERED this 5th day of July, 1996, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of July, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 96-0943 The following discussion is given concerning proposed facts by the Petitioner: Paragraphs 1-5 are subordinate to facts found. Paragraph 6 is not necessary to the resolution of the dispute. Paragraphs 7 & 8 are subordinate to facts found with the exception that the fourth sentence is not supported by competent evidence in the record, nor are paragraphs 9 and 10. Paragraph 11 is subordinate to facts found. Paragraph 12 in the first sentence is subordinate to facts found. The last sentence to paragraph 12 and paragraph 13 are not necessary to the resolution of the dispute. Paragraph 14 is discussed in the evidentiary ruling under Section 90.803(23), Florida Statutes. Paragraph 15 is subordinate to facts found with exception that the next to last sentence in the reference that on the second occasion "Granny" had gone somewhere is not supported by competent evidence in the record. Paragraphs 16-18 are subordinate to facts found. Paragraph 19 is not supported by competent evidence in the record. Paragraphs 20 and 21 are subordinate to facts found with the exception that the reference to "they" in paragraph 21 should be "she". The first and the third sentence to paragraph 22 are not supported by the record. The second sentence is subordinate to facts found. Paragraph 23 is not supported by the record. Paragraphs 24 and 25 with the exception of the last phrase to paragraph 25 are subordinate to facts found. The last phrase to paragraph 25 is not supported by the record. Paragraph 26 is subordinate to facts found with the exception of the reference to October 10, 1988, which is not supported by competent evidence in the record. Paragraphs 27-29 are not necessary to the resolution of the dispute. Paragraph 30 is subordinate to facts found with the exception of the reference to November 26, 1995 which is not supported by evidence in the record. Paragraph 31 is not necessary to the resolution of the dispute. The second paragraph 29 is subordinate to facts found. COPIES FURNISHED: Lucy Goddard, Esquire Department of Health and Rehabilitative Services 1000 Northeast 16th Avenue, Box 3 Gainesville, Florida 32601 James and Mary Comer, pro se Post Office Box 722 Micanopy, Florida 32667 Gregory D. Venz, Agency Clerk Department of Health and Rehabilitative Services Building 2, Suite 204X 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard Doran General Counsel Department of Health and Rehabilitative Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
