The Issue The issue in the case is whether the Department of Children and Family Services' (hereinafter "DCFS") denial of Petitioners’! Adoption Application was in accord with Section 39.012, Florida Statues (2000), and Rule 65C-16.005, Florida Administrative Code. Specifically, the issue is whether the denial of Petitioners' adoption application, after a favorable initial home study report, approved and signed by the counselor and counselor's supervisor, and a subsequent favorable updated home study report signed by the counselor and counselor's supervisor, but not approved nor signed by the Review Panel, is in best interest of the minor child as required by Section 39.012, Florida Statutes, and Rule 65C-16.005, Florida Administrative Code.
Findings Of Fact 1. S.P., a minor, is a female child born January 7, 1994. The Juvenile Court, Hillsborough County, Florida, adjudicated S.P. dependent, and in May of 1994, DCFS placed S.P. in care, custody, and control of her maternal grandmother. 2. On March 4, 1996, following the death of S.P.'s maternal grandmother, DCFS placed S.P. in the care, custody, and control of Petitioners, Daniel and Patricia Phillips, $.P.'s maternal second cousins. S$.P. remained with the Phillips’ family for almost four years. In March 2000, the DCFS removed S.P. from Petitioners' control and placed her in a foster home in Tampa, Florida. No evidence was presented as to why DCFS decided to remove S.P. after more than three years of bonding with Petitioners' family. 3. At some unspecified time during the extended period §.P. was a member of Phillips' family, the Phillips expressed to DCFS their desire to adopt S.P. into their family. Donna M. Richey, family counselor for DCFS, visited with Phillips' family in their home, discussed with them specific areas of concern and those areas in need of attention as contained in the initial home study report, dated August 4, 1997. The initial home study report was discussed, reviewed, and signed by the Phillips, Donna Richey, Counselor, and her supervisor, Carolyn Olson.?* 4. Ms. Richey, in her investigation and research for the required home study report, received information regarding Mr. Phillips' 1994 arrest on possession of marijuana charge. After discussions with Mr. Phillips, Ms. Richey concluded "the charge is not a disqualifier with regard to his eligibility to adopt through this Department, nor does it appear to be a factor in his ability to protect the child." 5. Ms. Richey's home study report summary and recommendation states: "This family had [sic] many strengths in terms of their abilities to care for this particular child, the most significant of which appear to be that the child has been in their home since December of 1995. Hope Massop, agency counselor in charge of protective services of this family over the last 16 months, has expressed no concerns with regard to the child's placement or the quality of care that is being given. {S]ltrengths for this family include . . . they appear to be functioning successfully as a blended family unit adoption by this couple would afford the child permanency with the only parents that she can recall. It also allows the child to maintain important birth family connections while ensuring her physical safety and emotional well-being." 6. Donna Richey's August 4, 1997, report concludes; ". (I)n light of the fact that couple is being considered for the adoption of a child who has been in their care for more than 16 months, it would appear to be in the best interest of the child to allow the family to proceed with the adoption as the strengths of the family seem to outweigh their apparent needs." 7. In September 1997, DCFS investigated an abuse report regarding Petitioners' family. The abuse report alleged that Patricia Phillips had beaten her 11-year-old son, Clayton, with a leather belt. Mrs. Phillips admitted beating Clayton on his buttocks. Trista Jenkins, Clayton's 14-year-old sister, contradicted every allegation of mistreatment made by Clayton. She and another brother, 9-year-old Keith, agree that Clayton is "just bad." Investigation revealed that Clayton had problems in school, and on the school bus, and served several Saturday detention sessions. Clayton later moved to Oklahoma to live with his father. No action was taken by DCFS. 8. In October 1997, DCFS investigated an abuse report regarding Lacey Jenkins, 14-year-old daughter of Mrs. Phillips. Lacey, without permission or knowledge of her parents, slipped out the house and spent the weekend with an adult male. Upon returning home, her mother beat her with a leather belt. Lacey has run away and slipped out of the house on several occasions in the past without the knowledge of her parents. Lacey was referred to medical services for drug and alcohol evaluation. No further action was taken by DCFS. 9. In January 1998, DCFS investigated an abuse report alleging mental injury, inadequate supervision, and hazardous conditions at Petitioners' residence. The investigation revealed that, according to the 14-year-old daughter, Lacey, her brothers, Keith and Clayton, had observed a part of a video tape of their parents (Daniel and Patricia Phillips) having sex. The parents admitted having made the videotape of themselves, but insisted that it was kept under lock in their bedroom, and the children were not allowed in the bedroom without their expressed permission. Lacey, at 14 years of age, is sexually active with older men and stays out overnight without permission of her parents. Lacey wanted to quit school and get a job when she turned 16 years of age. This matter was closed with no action having been taken by DCFS. The family agreed to continue working with Youth and Family Alternatives, a local counseling agency. 10. In October 1998, DCFS investigated an abuse report that the Phillips were physically abusive to their 11-year-old stepson; that there was drinking by the mother, Patricia, and smoking of marijuana by the step-father, Daniel Phillips. The 11-year-old son went to live with his biological father. All other children were examined and shown to be clean and free of bruises. The case was closed with no action by DCFS. 11. In October 1998, the Hillsborough County Circuit Court, Juvenile Division, terminated S.P.'s paternal rights and she continued to live with Petitioners' family until February 2000, at which time she was removed by DCFS and placed with a foster family in Tampa, Florida. Neither the initial or updated home study reports of the Phillips nor testimony presented at the hearing address the purpose, basis, or reasoning for DCFS' removal decision. 12. In November 1999, DCFS investigated an alleged abuse report that the children did not have adequate food to eat, no groceries in the house, and a recount of all prior abuse allegations dating back to September 1997. Investigation by DCFS revealed plenty of food in the refrigerator and food was on the stove cooking at the time of the visit. This case closed with no action by DCFS. 13. Tom Fisher's November 1999? undated adoptive home study report reflects that Mr. Phillips' 1999 arrest for possession of Marijuana resulted in probation, to include attending a substance abuse evaluation and any recommended treatment. Alpha Counseling Services, Inc., gave Mr. Phillips the substance abuse evaluation and recommended mandatory attendance at 12 group sessions at one per week, along with mandatory verifiable attendance at one community-based sober support group/week session, while in treatment. Mr. Phillips attended the 12 required group sessions, but failed to attend the additional one community-based sober group session. For this omission, and in answer to Mr. Fisher's inquiry, the November 30, 1999, Alpha Counseling Services, Inc., report states: "[T]he client has failed to meet program requirements and is being discharged from this agency as non-compliant." Mr. Phillips maintained, however, that he contacted Alpha Counseling Services to inquire about the additional mandatory attendance community-based program requirement, asking when and where it was to be held, and got no response. In subsequent discussion with Mr. Fisher, Mr. Phillips advised Mr. Fisher that he would attend the omitted session if given an opportunity to do so within his work schedule. DCFS offered no evidence regarding the lack of timely communication from Alpha Counseling to Mr. Phillips informing him of additional requirement to complete the assigned program nor their response to Mr. Phillips' request. 14. Tom Fisher's Summary and Recommendations in the Updated Home Study (Respondent Exhibit #2) are, "I must say that I feel similar to the way the writer of the previous home study felt. If this family were considering adopting a child that was not in their home I would have some reservations. However, because S.P. has been in the family home since 1995 and is a blood relative it may be in her best interest to be adopted by the Phillips family. Possible the strengths of the family could outweigh their needs." The staff judgment of Mr. Fisher was not recorded by documentation as having been considered by the Adoption Review Committee. The unsupported testimony of Peggy Niermann was the only evidence contrary to the judgments and opinions of both Mr. Fisher and Ms. Donna Richey, Petitioners’ home study counselors. 15. The DCFS' Adoption Supervisor, Peggy Niermann, agreed that relatives of the child to be adopted are the review committee's first adoption option and the Phillips' denial was difficult. However, Ms. Niermann concluded that Mr. Phillips’ (1) drug usage, (2) lack of seriousness with which his drug counseling was approached, and (3) his criminal history, formed the basis for the Adoption Review Committee's denial of the Phillips' adoption application. 16. But for the testimony of Ms. Niermann reading from the complaint, no credible, substantial evidence was presented. The record is devoid of any evidence regarding: (a) the persons who comprised the Adoption Review Committee, and (b) the reason the committee disagreed with the two approved home study reports by the Phillips' family counselors and their respective supervisors, all of whom found those factors "not a disqualifiers for adoption of S.P." 17. DCFS removed S.P. from the Phillips' household in February 2000. At the time of the hearing the foster parent adoption has been approved and is in progress waiting to be finalized by court order. 18. The Phillips maintain that every attempt they have made, individually and together, to visit S.P. since her 10 placement with her foster parents has been denied by the foster parents. 19. Sissy Keppel, Pasco County school teacher, testified that S.P. was doing well in speech therapy and in her other educational endeavors. 20. Lesa Sims, Adoption Supervisor, testified that S.P. is the only child in the foster home; upon placement S.P. suffered with adjustment problems manifested by temper tantrums and screaming and kicking episodes, and counseling is recommended. Ms. Sims concluded that DCFS has no further interest in the Phillips as adoptive parents. 21. Bruce Cavall, Mr. Phillips' employer, testified that Mr. Phillips was a good employee; that he was not aware of drug usage by his employee; that the drugs found in his company's truck could have been and probably were probably left there by another driver because the truck was driven by different workers during the time in question, and that he made several attempts to tell the police about the daily use of his company's trucks by several drivers but the police would not grant him an audience. 22. Vernon Tucker, uncle of S.P., felt that S.P. was ina good environment with her foster parents; that he had been given visitation right with S.P., but he felt it was better if s.P. was adopted by blood and family with whom she had lived all her 11 young life. Mr. Tucker opined that Daniel and Patricia were a good couple, working hard to provide for their family and S.P. had and would continue to thrive in their family unit. 23. Lacey Jenkins, the now 18-year-old daughter of Mrs. Phillips, admitted her mother spanked her for staying out all night with a 24-year-old male; she does not recall her mother slapping her; Mr. Phillips never called her bad names; she denied making allegations and other negative statements which are summarized in the abuse reports, and it was her decision to quit school and seek a job when she became 16 years old. 24. Joseph Jenkins, 24-year-old son of Mrs. Phillips' prior marriage, testified he has never observed Mr. Phillips taking drugs nor drinking; he quit school upon reaching his 16th birthday; he moved away from home to be on his own and is currently living with his girlfriend's parents. In his opinion, S.P. would be better off living with the Phillips because she is their blood relative and the Phillips have more room, space, time, and more finances to devote to S.P. since he and his sister Lacey no longer live at home. 25. Mrs. Phillips testified that she and Mr. Phillips had accomplished those items recommended by their family counselor before and during the adoption application process. Mrs. Phillips changed her employment from nights to days to be 12 trampoline was purchased as an additional play item. Mr. and Mra Dhallanc atktanAoA 3517 Fame der pepe me le ee Uk leet kL 28. The burden of proof, apart from statute, is upon the party asserting the affirmative of an issue before an administrative tribunal, Balino v. Department of Health, 348 So. 2d 349 (Fla. Ist DCA 1977); Espinoza v. Department of Business and Professional Regulations, 739 So. 2d 1250 (Fla. 3rd DCA 1999). In this case, the Phillips have the burden of demonstrating by a preponderance of the evidence their entitlement to the relief sought. 29. The burden of going forward is upon DCFS to show that actions taken in this case were in substantial compliance with its rules promulgated for the implementation of its statutory duties and responsibilities, per Section 39.012, Florida Statutes (2000) and Rule 65C-16.005, Florida Administrative Code. 30. Accordingly, the threshold issue is whether DCFS complied with Rule 65C-16.005, Florida Administrative Code, adopted for implementation of Section 39.012, Florida Statutes (2000), in its process and procedure of denying Petitioners’ Adoption Application. 31. The language of Section 39.012, Florida Statutes (2000), and Rule 65C-16.005, Florida Administrative Code, is clear and unambiguous. DCFS is authorized to promulgate rules for the effective and efficient administration of this Chapter 14 34. This criteria establishes policy to assist staff and cannot substitute for the judgment of staff; however, it must be used in conjunction with a thorough assessment of the adoptive environment and the extent to which it can best meet the individual needs of a child. 35. In this case, there existed "a choice . .. between prospective adoptive families." The Phillips and the foster family both had pending adoption applications before DCFS' Adoption Application Review Committee. Those factors, prioritized by DCFS Adoption Application Review Committee, "must be expressly stated in the documented record." In this case, factors used to make the placement decision, were not "documented in the record." Assuming arguendo there existed a document, it was not introduced into evidence. In this regard, DCFS failed to follow its own rules. 36. There was no evidence presented which recorded "the prioritization of different factors" used to make the decision to deny Petitioners' adoption application. In support of the denial, DCFS cited two excerpts from Alpha Services, Inc. report, and two marijuana charges; the latter of which initial and updated family evaluation reports concluded as "non disqualifier." The foster parents' application filed within the last seven months has been approved by DCFS. 16 37. The policy criteria contained in the rule cited herein are to assist staff in rendering a judgment. Staff's final "judgment" must consist of two elements: [1] it must be "employed in conjunction with policy" and [2] "stated in the documented record." DCFS failed to "state in the documented record" the method and/or basis for the judgment of staff as required by the rule. 38. Assuming arguendo that Peggy Neirmann's testimony of the report of the Adoption Review Committee's denial decision was based upon review of the home study reports, and the Adoption Application Review Committee disagreed with staff recommendations, the reasons upon which the Committee's based their decision is required to be "documented in the record" per Rule 65C-16.005(11), Florida Administrative Code. No such documented-recorded evidence was introduced into evidence by DCFS. 39. The testimony of Peggy Neirmann, reciting the allegations of the complaint, without additional evidence explaining actions taken by the adoption committee, fails to meet the document of record requirement of Rule 65C-16.005(11), Florida Administrative Code. 40. The initial home study report and the updated home study report both recommend approval of the Phillips' adoption application. The denial letter from DCFS' attorney, advising 17 Petitioners of the Adoption Application Review Committee's ; action, contains "allegations" and "conclusions," and as such does not "document the record" with the basis for the Committee's actions as required by Rule 65C-16.005(11). 41. Section (6) of the rule mandates the best interest of the child as the paramount concern in making an adoptive placement decision. This objective is achieved by DCFS' : adherence to the preceding sections, [a] prioritization, [b] recording the criteria employed, and [c] documented record of assessment be provided the prospective family. These sections taken together serve to enable an objective review of staff and committee "judgment decisions" and those factors that were, in fact, considered to be in the "best interest of the child." 42. Section 39.012, Specific Rulemaking Authority, provides in relevant part the following: Pursuant to s. 120.536, the department is specifically authorized to adopt, amend, and repeal administrative rules which implement or interpret law or policy, or describe the procedure and practice requirements necessary to implement this chapter, including, but not limited to, the following: (2) Reporting of child abuse, neglect, and abandonment; reporting of child-on-child sexual abuse; false reporting . . . taking a child into protective custody; and shelter procedures. 18 | 43. The evidence shows that the November 1999 abuse allegations of "the children suffering because of no food in the house" was, in fact, a false report. The report states: "While the investigator was there the family was preparing their Thanksgiving dinner. There was plenty of food for everyone." Had the review committee considered this abuse report, as false or otherwise, such action should have been "documented in the record." DCFS provided no such documented evidence. 44. It is well established that an administrative interpretation of the law being administered by an administrative agency is entitled to great deference, but such deference is not absolute. Legal Environmental Assistance Foundation v. Board of County Commissions, 642 So. 2d 1081 (Fla. 1994). Accordingly, an agency's construction cannot stand when it amounts to an unreasonable interpretation. Id. 1083-1084. 45. "The best interest of the child" is the sought-after objective of the adoption herein considered. However, the child's best interest goal must not violate the legal requirement that DCFS follow its rules in attempting to achieve that goal. The best interest of the child does not provide DCFS with an exception to the rule. The decision of DCFS is not absolute, nor can the process of reaching its decision avoid the required documentation. Agencies must honor their own substantive rules until they are amended or abrogated. Gadsden 19 State Bank v. Gerald A. Lewis, 348 So. 2d 343, (lst DCA 1977). At all times pertinent to this action, DCFS was obligated by its rule(s) to document to record those matters touching upon the adoption application of the Phillips. DCFS did not comply with its rule. 46. Having decided the threshold issue that DCFS did not comply with Rule 65C-16.005(11), Florida Administrative Code, promulgated for the implementation of its statutory duties and responsibilities, pursuant to Section 39.012, Florida Statutes, (2000), DCFS' denial of Daniel and Patricia Phillips' Application for Adoption of minor child $.P. must be set aside.
Conclusions For Petitioner: Daniel R. Phillips and Patricia A. Phillips, pro se 38902 Inez Avenue Zephyrhills, Florida 33540 For Respondent: Frank H. Nagatani, Esquire District Legal Counsel Department of Children and Family Services 11351 Ulmerton Road, Suite 100 Largo, Florida 33778-1630
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Children and Families Services enter a final order setting aside the Adoption Application Review Committee's denial of Petitioners' Adoption Application and enter an Order approving the Adoption Application filed by Daniel and Patricia Phillips for the adoption of the minor child S.P. 20 b DONE AND ENTERED this is _ day of December, 2000, in Tallahassee, Leon County, Florida. ED L. BUCNINE 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 \3. day of December, 2000.
The Issue The issue in this case is whether Petitioner's foster home license should be renewed.
Findings Of Fact From August 24, 2004, and throughout the period material to this proceeding, Petitioner Jannifer Thompson ("Thompson") and her husband, Dalkeith, held a license that authorized them to operate a family foster home under the supervision——and within the regulatory jurisdiction——of Respondent Department of Children and Family Services ("DCF"). Like all licensed foster parents, Thompson and her husband had entered into a written contract with DCF known as the "Bilateral Service Agreement" ("Agreement"), most recently as of April 30, 2006. This Agreement, by its terms, "reflect[ed] standards of care that are current requirements in Florida [law]." On September 14, 2006, a counselor named Elboney Ojobor, who was employed by a private agency to whom DCF had delegated various responsibilities pursuant to contract, made a routine quarterly visit to Thompson's home. Ms. Ojobor was covering for a colleague (Rondalyn Woulard) who was on maternity leave; she had not met Thompson previously. While interviewing Thompson, Ms. Ojobor learned that Thompson was the only adult living in the home at the time, and that Thompson was getting divorced from Dalkeith. Ms. Ojobor understood this to mean that Mr. Thompson had moved out of the home permanently. In fact, Mr. Thompson was away from the home then not because he had moved to another residence ahead of a divorce, but because his job with a shipping company had required him to be out of town for an extended period. Nevertheless, the couple was estranged; Mr. Thompson would leave the marital home for good in the middle of October 2006. Ms. Ojobor's visit was not the first occasion on which Thompson had notified DCF (through its private-sector agent) that her marriage to Dalkeith was in trouble. During an earlier home visit (probably around June 2006, during the quarter immediately preceding Ms. Ojobor's visit in September), Thompson had told her regular counselor, Ms. Woulard, that she might divorce Dalkeith. Ms. Ojobor was not aware of this previous communication, however, and thus she reported the apparent change in circumstances (Mr. Thompson's absence) to her supervisor. The upshot was that on September 15, 2006, Ms. Ojobor called Thompson to inform her that, if she were to continue operating the foster home as a single parent, she would need to obtain a new license. As it happened, whatever steps Thompson took thereafter to become re-licensed came quickly to naught because, in early October 2006, DCF received an allegation that children in Ms. Thompson's home were being physically abused. Having brought up the abuse report, the undersigned believes it necessary here to interrupt the narrative flow of the findings, to call attention to some important points. The most serious charge against Thompson in this case is that she used "excessive" corporal punishment on foster children in her care. The accusation is not that Thompson was found by some other agency or investigator to have abused a foster child or children. The distinction is critical. Because DCF has alleged that Thompson used corporal punishment excessively, it is not sufficient (or even necessary) for DCF to prove that someone else, after investigating allegations of abuse, concluded that Thompson had inflicted some sort of physical injury on a foster child. Rather, DCF must prove that Thompson, in fact, actually used corporal punishment, which is a different fact. Indeed, that someone else found Thompson guilty of physical abuse is not especially probative, in this de novo proceeding, of the salient factual dispute, namely whether Thompson used corporal punishment on foster children.2 Against this backdrop, the undersigned finds that, on October 9, 2006, DCF referred a report of abuse concerning Thompson to the local Child Protective Team ("CPT"). DCF requested that the CPT examine the allegedly abused foster child and make an assessment of the situation. One member of the CPT who took part in this particular assessment was Karl Dorelien. Though not a medical provider, Mr. Dorelien was present for the medical examination of the child in question, whose name is T. P. The examination was performed by an advanced registered nurse practitioner ("ARNP"). Mr. Dorelien testified at hearing. The ARNP did not. At the time of the examination, Mr. Dorelien saw some bruising on T. P.'s forearm. T. P. told Mr. Dorelien and the ARNP that she had been struck by a belt. The CPT did not independently investigate T. P.'s statement. Mr. Dorelien and the ARNP accepted at face value T. P.'s statement about the cause of her injury. The ARNP found that T. P.'s wound was "not accidental." (Mr. Dorelien specifically denied having the expertise to ascertain whether a bruise was caused accidentally or intentionally. There is, it should be added, no persuasive evidence that the ARNP possesses such expertise, either.) Based on the medical examination, the CPT concluded that Thompson had struck T. P. with a belt. (It is not clear how the CPT determined that Thompson——as opposed to someone else——caused T. P.'s injury.3) The evidence shows, in short, that the CPT found Thompson had caused bodily injury to T. P., a foster child then in her care, whom (the CPT determined) Thompson had hit with a belt. There is, however, no persuasive evidence upon which the undersigned independently can find that Thompson actually hit T. P. with a belt (or otherwise). How can this be? First, no one claiming to have personal knowledge of the matter testified at hearing that Thompson had struck T. P. with a belt. (T. P. was not called as a witness.) Thompson denied having perpetrated the alleged misdeed. Second, although there is competent and credible evidence (Mr. Dorelien's testimony) that T. P.'s forearm was bruised, the only evidence as to the cause of this injury was hearsay: (1) T. P.'s statements to the CPT revealing that she had been struck with a belt and (2) the ARNP's opinion (which Mr. Dorelien repeated at hearing) that the wound was not accidental. This uncorroborated hearsay is not a legally sufficient basis for any finding of fact, and even if it were, the undersigned, as the trier of fact, would give it too little weight to support a finding.4 Finally, even if there were sufficient evidence in the record to support a finding that T. P. had been struck with a belt (and there isn't), there yet would be nothing but Mr. Dorelien's ambiguous testimony concerning the substance of T. P.'s out-of-court statement, coupled with inference or speculation (based on uncorroborated hearsay), tending to establish that Thompson did the striking. Again, such "proof" is neither legally sufficient nor, in any event, logically persuasive enough to support a finding that Thompson was at fault for the child's injury. DCF alleges that, in addition to striking T. P. with a belt (which allegation was not proved, as just found), Thompson also spanked J. D. F. and his brother, O. F. Both of these boys, respectively aged 8 and 7 years at the time of hearing, testified against their former foster mother. Each claimed that Thompson had spanked him with a belt. As witnesses, however, the boys did not inspire confidence in the truth of their accounts. Each gave testimony that was confusing, sometimes inconsistent, and lacking in precision. Neither one seemed distinctly to remember the important events at issue, much less any of the details surrounding them, causing the undersigned to wonder, at times, whether the boys were independently recalling the underlying events or, rather, testifying from the memory of what someone might have told them was alleged to have occurred. Doubtless many of these boys' shortcomings as witnesses stemmed from their youth and immaturity. Even so, all witnesses, regardless of age and experience, must be measured according to the same standards of credibility; the bar can be neither lowered nor raised to conform to a particular witness's capacity for giving testimony, for doing so would put a thumb on the scales of justice. At bottom, the accounts of J. D. F. and O. F., though not inherently incredible, nevertheless lacked sufficient indicia of reliability to produce in the undersigned's mind a firm belief or conviction that Thompson had spanked them with a belt. The undersigned hesitates to say more than that such is a possibility. Against the shaky testimonies of the boys was offered the decidedly stronger testimony of their sister, Sancia Jeantil, who swore that while she was living in Thompson's home (which admittedly was not at all times her brothers were there), she never saw Thompson spank either J. D. F. or O. F. She further testified that neither of her siblings had ever complained to her about being beaten. The undersigned has accorded considerable weight to Ms. Jeantil's testimony, because it seems unlikely that she would prevaricate to protect Thompson at her brothers' expense. Although Ms. Jeantil was not always present in the home, her testimony, which the undersigned accepts, is persuasive proof of the pertinent negative proposition, i.e. that Thompson did not use corporal punishment on the boys. Thompson herself testified at hearing and denied having used corporal punishment on J. D. F., O. F., or any other foster child. Mr. Thompson, too, testified that corporal punishment had not been used on any of the foster children in their home. Thompson's own child, J. T., said the same. None of these witnesses conclusively proved the negative of DCF's allegation regarding corporal punishment, but then again it was not Thompson's burden to disprove the charge. What these witnesses did do, effectively, was establish a credible, if simple, theory of innocence: Thompson never beat the foster children in her care. The undersigned has determined, as a matter of ultimate fact, that the evidence as a whole fails to produce in the mind of the trier of fact a firm belief or conviction, without hesitancy, that Thompson used corporal punishment on any of the foster children under her care. Aside from the allegations regarding corporal punishment, DCF has charged Thompson with the lesser offense of failing immediately to notify DCF that her husband had moved out of the home. The evidence shows, however, that Thompson satisfied her duty to notify DCF concerning changes that might affect the life and circumstances of the foster children residing in her home. To recap, briefly, the material facts, Thompson informed DCF's agent, Ms. Woulard, of the possibility that she and Dalkeith might divorce; thus, DCF was on actual notice of a potential change in Thompson's marital status. Thompson likely gave DCF this advance warning in June 2006; in any case, she spoke up long before Dalkeith established a new residence and before the divorce proceeding commenced. There is no clear proof that the couple's situation had changed materially as of September 14, 2006, when Mr. Ojobor visited the home. Without question, Mr. Thompson was away at that time——but he worked for a shipping company and thus extended absences were part of his routine. Having all the evidence of record in view, the undersigned is not convinced that Mr. Thompson had "moved out" of the home as of mid-September 2006 in the sense of having permanently relocated from that residence, which is what DCF maintains. While there is some evidence that such was the case, there is also persuasive evidence that Mr. Thompson did not leave the home for good until October 2006——evidence sufficient to preclude the undersigned from finding, without hesitancy, that DCF's allegation is accurate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that DCF enter a final order approving the renewal of Thompson's foster home license. DONE AND ENTERED this 15th day of November, 2007, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of November, 2007.
The Issue Whether the Petitioner's request to adopt her grandchildren should be approved.
Findings Of Fact The Petitioner is a resident of Palm Beach County, Florida, and is the biological grandmother of the children she sought to adopt. The Petitioner and the grandchildren are identified by their initials in this order to ensure confidentiality in the matter. The Respondent is the state agency charged with the responsibility of reviewing adoptions for children within their jurisdiction. It is not disputed that the Respondent, by law, was required to review the instant adoption application. In April 2002, the Respondent contracted with the Children's Home Society for services in connection with adoption proceedings. The subject matter of this case was one of the adoption applications transferred at that time. Accordingly, Mary Bosco and Darlene Levy worked together to review the Petitioner's application and to form an Adoption Review Committee to make a recommendation regarding the instant matter. The Adoption Review Committee met on more than one occasion to consider the facts regarding this Petitioner's ability to parent the four grandchildren. The case worker assigned to this matter raised several concerns that were fully investigated and reviewed. Among those concerns was the fact that the Petitioner's legal husband has a lengthy criminal record, including drug-related offenses. Further, Petitioner's husband was charged with cruelty toward a child and is prohibited from having unsupervised contact with his own children. Additionally, the Petitioner is not able to control the home environment as her extended family comes and goes from the residence. The Petitioner is also ill equipped to deal with the medical and educational needs of the children. The Petitioner's children did not perform well in school and the absenteeism and/or tardy rate for the grandchildren is unacceptable. The Petitioner has not demonstrated any improvement where education is concerned. The Petitioner has not followed up on tutoring or therapy for the grandchildren. Finally, neither the Petitioner nor her spouse has a strong employment history to demonstrate financial stability for the home. Despite several efforts to explain the home environment issues to the Petitioner, as well as a court- ordered participation in a program called "Family Builders," the Petitioner has not demonstrated significant improvement in any of the areas of concern identified by caseworkers and the guardian ad litem. The Petitioner has allowed transient houseguests to reside within the home and to assist with the children. On or about September 23, 2002, the Adoption Review Committee met for its final review of the instant application. At that time the committee determined it would not be in the children's best interests to allow the Petitioner to adopt them. The Petitioner has presented no credible evidence to refute the findings reached by the Adoption Review Committee. Such findings (set forth in Respondent's Exhibit 1 and supported by the testimony of Respondent's witnesses) are adopted by reference. It is undisputed that the Petitioner genuinely loves her grandchildren. Moreover, it is accepted that the Petitioner would do her best to provide a stable home for the children. Unfortunately, based upon the Petitioner's track record to date, it is unlikely the Petitioner will be able to provide the parenting and environment these children require. This finding is supported by the fact that all of the children are doing better academically since they were removed from Petitioner's home. Further, all of the children are in better health according to their guardian ad litem. Thus it must be concluded that the home environment offered by the Petitioner was inadequate to meet the needs of these children.
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 denying the Petitioner's application for adoption of the grandchildren. DONE AND ENTERED this 1st day of May, 2003, in Tallahassee, Leon County, Florida. ___________________________________ J. D. PARRISH 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 1st day of May, 2003. COPIES FURNISHED: 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 1, Room 202 Tallahassee, Florida 32399-0700 Laurence Scher, Esquire Acting Chief District Legal Counsel Department of Children and Family Services 111 South Sapodilla Avenue Suite 201 West Palm Beach, Florida 33401 U. J. (Address of Record)
The Issue The issue to be resolved in this proceeding concerns whether the Respondents should suffer revocation of a Foster Care License for the reasons stated in the Administrative Complaint, involving alleged use of corporal punishment to discipline two children placed in their care.
Findings Of Fact The Petitioner is an agency of the State of Florida charged in pertinent part with regulating the licensure and child care standards of foster care providers. The Respondents are licensed foster care providers, licensed by the Petitioner Department. Billie Harbison is the foster care supervisor with the Department engaged in training and licensure of foster care families. She is familiar with the Respondents as foster care providers, having been involved in their licensure in 1995. In the course of her involvement with the Respondents as foster care parents, she instructed them as to the discipline policy and training provided to them as foster parents. Sometime in late 1996 she became aware of the abuse report of September 1996 concerning Joseph I. and Jerome I., which is Petitioner's Exhibit That report indicated the foster parents, the Respondents, were alleged to have struck the two boys with a belt (extent of injuries, if any, unknown) and that one of the boys indicated that his foster mother taped his mouth shut when he talked too much. Because she felt that the report showed abuse, Ms. Harbison recommended revocation of the Respondents' license. Licensed therapists were working with the children during times pertinent hereto, including the time when the abuse report was rendered because the children are "ADHD" (Attention Deficit Hyperactive Disorder). Ms. Harbison never saw nor interviewed the two children nor had any professional become aware of or recorded indications of abuse. No therapist working with the children ever reported any indicia of abuse nor were they ever interviewed. Jim Hutchison, a therapist with the Children's Home Society, testified for the Department. He diagnosed both children as ADHD and Joseph to be "oppositionally defiant." He described both children as difficult to converse with and that Jerome was evasive about what happened in his relationship with his natural mother and that Joseph could not be relied upon to testify accurately and honestly. Rachel Sweat is a kindergarten teacher with the Baker County School Board. She only had contact with the children for four to five days. She recounted a hearsay statement, which was admitted into evidence as a "spontaneous utterance," from one of the children concerning "Momma" taping their mouths. This statement, coupled with other testimony reveals that the child was referring to his natural mother and not to his foster mother, Ms. Farmer. Brenda Van Landingham was a shelter parent for the children for two months. In testifying for the Respondents she described the children as very aggressive, fighting constantly with other children. They always sought to place the blame for any altercation on other children and showed a propensity to lie. She noted that they referred to their natural mother as "Trish" or "Momma" or "Momma Trish." Both children showed a propensity to become very angry when their natural mother failed to arrive for visitation. She also noted in her testimony that in conversations with Mrs. Farmer, Mrs. Farmer told her that her discipline method with the children was to use "time out" and not to use corporal punishment. She found that worked better for her. Fay Wood testified for the Respondents. She holds Bachelor of Science and Master of Science degrees in psychology. She is currently working on attainment of a Ph.D. with the Fielding Institute and practices as a children's psychological therapist with the North Florida Mental Health Center. She has seen both children on a weekly basis and the evidence shows that she saw them for at least twenty weekly visits. She noted that she had to counsel the children individually because when they were together in the same room they became very aggressive with each other. Although she saw the children every week, she obtained no reports or indications from either of them that they were being corporally punished or that their mouths had been taped. She saw no indications that the children had been abused by the Respondents. Although she questioned the children about how they were disciplined at home and got an answer to the effect that they were spanked or had "time out," the only reference to spanking indicated that a person called by the child or children "Daddy Willis" had ever spanked them. It may be deduced from the other record evidence that that person is someone involved with the household of the children's natural mother. In any event, however, there is no evidence that either of the Respondents had spanked the children as foster parents. Ms. Wood saw evidence of good results from the Farmer's care of the children. She also observed evidence in the children of a propensity to lie. Natalie Wilson is director of the "Love Center" a day care facility. She has cared for both children. She never heard of or saw any indications of any inappropriate conduct by the Respondents involving corporal punishment or abuse of the children. The children never described any spanking, slapping or other corporal punishment incidents to her. They never described any incidents involving taping of their mouths for excessive talking, et cetera. Cynthia Stewart is a licensed foster parent and has had contact with the Farmers. She knows the Farmers to have used "time out" as a disciplinary measure and they had advised her to do so in her practice as a foster parent, because such disciplinary measures had worked well for them. Likewise she never saw any signs in these children of spanking or corporal punishment by the Respondents. Tracey Forest is a counseling professional employed with the Meridian Behavioral Health Center in MacClenny. Without objection she described receipt of a letter from a therapist or counselor regarding the Respondents' good parenting practices. She herself neither observed nor found any record of abuse by the Farmers of the children. In fact Joseph I.'s medical record indicated that although his natural mother "Momma Trish" struck him, that his foster parents did not hit him. She is aware of no indication or record that the Farmers had struck the children. Lisalotte Farmer, a Respondent, testified on her own behalf and that of her husband, Cleveland Farmer. She described her love for children and the subject children and the fact that she and her husband wish to continue to be foster parents. They do not use corporal punishment and found that it is not necessary. Their disciplinary measures involve use of "time out" when discipline needs to be imposed and buying the children small gifts as rewards for good behavior. She also recounted that the children often showed a propensity to lie. In summary, the preponderant credible evidence has not established that the acts of abuse and corporal punishment occurred nor that the Respondents perpetrated such. The abuse reports in evidence as "corroborative hearsay" are not probative of any material facts in issue. The reports themselves are hearsay and the witnesses testifying for the Petitioner agency had no independent knowledge of facts tending to show that child abuse or corporal punishment had occurred nor any independent, competent knowledge as to the identify of the perpetrators, if such had occurred. Thus there is no competent, non-hearsay testimony or evidence supportive of the operative facts charged against the Respondents which the abuse reports could corroborate. Consequently they are not of material, evidential value. The instances of corporal punishment or child abuse have not been proven to have occurred. The Respondents did not perpetrate such.
Recommendation Accordingly, having considered the foregoing findings of fact and conclusions of law, the evidence of record and the candor and demeanor of the witnesses, it is RECOMMENDED that a Final Order be entered by the Department of Children and Family Services dismissing the Administrative Complaint in its entirety and restoring the Respondents' foster care licensure status to good standing. DONE AND ENTERED this 4th day of February 1998, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (805) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 4th day of February, 1998. COPIES FURNISHED: Terence M. Brown, Esquire Brown and Christopher 486 North Temple Avenue Starke, Florida 32091 Roger L. D. Williams, Esquire Department of Children and Family Services Post Office Box 2417 Jacksonville, Florida 32231-0083 Gregory D. Venz, Agency Clerk Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard A. Doran, Esquire Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399 0700
Findings Of Fact Because she was interested in becoming licensed as a foster parent, Respondent entered the Petitioner's "Group Preparation and Selection, Model Approach to Partnerships in Parenting" (GPS/MAPP) training program in February 1995. GPS/MAPP is a mutual selection process whereby a prospective foster parent becomes informed as to the duties and responsibilities of being a foster parent and the agency is afforded the opportunity to evaluate whether the prospect would make a suitable foster parent. Petitioner requires that each prospective foster parent provide it with verified financial information as to his or her income and expenses. The type information the prospect may submit to verify income includes W-2 forms, tax returns, canceled checks and bank statements. Petitioner considers it necessary that each prospective foster parent have income that exceeds expenses because the needs of the foster child may exceed the monies paid by Petitioner to foster parents and the provision for those needs should not solely depend on the payments the foster parent receives from Petitioner. If a participant in the GPS/MAPP program does not verify his or her income, the prospect's participation in the program is terminated by Petitioner. Petitioner considers a prospect to have been "selected out" when his or her participation in the program is terminated. Respondent was asked to provide the requisite financial information. The financial statement she provided reflected expenses that exceeded her verified income by $1,220.00 per month. Respondent was told as a member of the class that she would be required to verify all her income. After she provided the financial statement that did not verify all of her claimed income, Respondent was specifically advised by Elliott Maddox that such verification would be necessary for her to remain a member of the class. Mr. Maddox also advised Respondent of the type information that would be required. After her discussion with Mr. Maddox, Respondent provided Petitioner with a notarized statement from Eddie Grace, her ex-husband. Although the statement is notarized, the notary is only attesting to the signature of Mr. Grace. Consequently, the statement was not in affidavit form. This statement stated the following: I, Eddie Grace, give my ex-wife, Algeria Grace, 1,200 (sic) and will continue to do so every month as long as I live. I also own a busin- ess and she is part owner of Grace Family Lawn Services. The final judgment dissolving the marriage between Mr. and Mrs. Grace did not require Mr. Grace to pay any money to Mrs. Grace on a monthly basis. The statement from Mr. Grace was all the information provided by Respondent to verify her income of $1,200 per month. There was no financial information from Grace Family Lawn Services that verified she received $1,200 per month from that business. Petitioner advised Mrs. Grace that the information she had provided was insufficient to verify her income and told her that she would be selected out of the program if she did not promptly provide additional verification. Respondent failed to provide additional verification of her income. Because she did not verify her income, Respondent was selected out of the training program.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order that sustains the termination of Respondent's participation in its Group Preparation and Selection, Model Approach to Partnerships in Parenting training program. DONE AND ENTERED this 7th day of June, 1996, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON, 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 7th day of June, 1996. COPIES FURNISHED: Lisa Friedlieb, Esquire Department of Health and Rehabilitative Services 201 West Broward Boulevard, Suite 201 Fort Lauderdale, Florida 33301 Ms. Algeria Grace 3540 Northwest 8th Street Fort Lauderdale, Florida 33311 Gregory D. Venz, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard Doran, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Should Respondent's family foster home license be revoked, suspended, or otherwise disciplined based on the facts alleged in the Notice of Denial dated August 27, 1998, as amended?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Department is the agency of the State of Florida charged with the responsibility of licensing family foster homes and administering the foster care program as it relates to family foster homes, such as providing foster care supervision and services. On June 16, 1997, Kristie and Robert Huggins (Huggins) of 1403 Chamberlain Loop, Lake Wales, Polk County, Florida, were issued a Certificate of License by the Department to operate a family foster home for children. Subsequently, the Department placed foster care children in the Huggins' home. At all times pertinent to this proceeding, the Department had the children A.M., born December 29, 1996, L.M., born September 30, 1995, and A.C., born October 22, 1996, placed in the Huggins' home. The Notice of Denial dated August 27, 1998, provides in pertinent part as follows: . This letter provides notice that your license as a foster home is revoked based on Section 409.175(8), Florida Statutes, and Rule 65C- 13.001, Florida Administrative Code (F.A.C.). The reasons for the revocation are as follows: Vickie Barron, of Nurturing Families Project, Evelyn Liamison [sic], Guardian Ad Litem, and Family Service Counselors Patrice Thigpen and Desiree Smith noted as to Mrs. Huggins' "possessiveness" of the children toward the birth parents. The children were known in the Busy Bee Preschool as the "Huggins Children." The children's belongings were marked as "Huggins." These actions violate Rule 65C-13.010(1)(b)(1)(c)(F.A.C.), which states that substitute care parents are expected to help children in their care to maintain a sense of their past and record of their present. Bruises and other injuries noted by Vickie Barron of Nurturing Families Project, Evelyn Liamison [sic], Guardian Ad Litem, and the birth parents. The Busy Bee Preschool also noted bruises and various injuries to the three children on 2/13/98, 2/26/98, 3/2/98. 3/16/98, and 3/23/98. While they resided in the Huggins' home. Since the children have moved from the home, these types of injuries are not occurring. Rule 65C-13.009(e)(10) (F.A.C.), require that foster parents must be able to provide a healthy and safe environment for children and youth and keep them from harm. You have failed to comply with this rule. Desiree Smith, Family Service Counselor, noted that on 3/12/98, when Mrs. Huggins was questioned about a bruise on a male foster child, she told Desiree Smith that the bruise occurred at the daycare. The daycare notes reflected that Mrs. Huggins told the daycare that the bruise was received at the doctor's office. This violates Rule 65C- 13.010(4)(1)(F.A.C.), which states that the substitute care parents must notify the department immediately of illness or accidents involving the child. You did not notify the department when you and Mr. Huggins separated. This violates Rule 65C-13.010(4)(g), which states substitute care parents must notify the department regarding changes which affect the life and circumstances of the foster family. Your violation of the above mentioned Administrative Rules created an unsafe environment for foster children. Section 409.175(8)(b)1, Florida Statutes. At the beginning of the hearing, the Department made an ore tenus motion to amend certain rule citations in the Notice of Denial. The motion was granted and the citations to Rules 65C-13.010(1)(b)(1)(c)(F.A.C.); 65C-13.009(e)(10)(F.A.C.); 65C-13.010(4)(1)(F.A.C.); and 65C-13.0010(4)(g)(F.A.C.) were amended to read as follows: Rules 65C-13.010(1)(b)1.c.; 65C-13.009(1)(e)10.; 65C-13.010(4)(j); and 65C-13.010(4)(g), Florida Administrative Code, respectively. Respondent was a very loving, caring and affectionate foster parent and expressed her love, care, and affection with L.M., A. M., and A.C. both in and out of the foster home. From the very beginning, Respondent understood that the ultimate goal for L.M. and A.M. was reunification with their biological parents. At some point in time after A.C. was placed in foster care with Respondent, she expressed a desire to adopt A.C. At this time, Respondent understood (mistakenly) that the goal was to terminate the parental rights of A.C.'s biological parents. However, the Department's goal was for reunification and not termination of parental rights. In fact, it is not unusual for foster parents to adopt a child placed in their care when and if the Department terminates the parental rights of the biological parents and offers the child for adoption. Upon learning of the Department's goal of reunification for A.C., Respondent did not pursue the issue of adoption of A.C. Apparently, Vicky Barron and, to some degree, Evelyn Lamison misunderstood Respondent's love, care, and affection for these children as possessive and interfering with the goal of reunification. Vicky Barron is employed by Regency Medical Center, Winter Haven, Florida, supervising the Nurturing Families Program. Evelyn Lamison is the guardian ad litem for L.M. and A.M. Patricia Bryant, Family Service Counselor with the Department, described Respondent as being over-protective but did not see Respondent's love, care, and affection for the children as being an attempt to undermine the goal of reunification. Respondent enrolled L.M., A.M., and A.C., in the Busy Bee Preschool. At the Busy Bee Preschool, the children were at times referred to as the "Huggins" children. However, there was no attempt by Respondent or her husband to conceal the fact that the children were their foster children. They were enrolled under their biological parents' name. Some of their belongings were marked "Huggins" and some of the belongings were marked in the child's given name. The marking of the children's belongings was for the convenience of the Busy Bee Preschool and not intended as a means to deprive the children of sense of their past or present. Although there may have been some hostility on the part of both the Respondent and the biological parents of the children, there was insufficient evidence to show that Respondent, either intentionally or unintentionally, attempted to interfere, sabotage, or prevent the ultimate goal of reunification of the children with the biological parents, notwithstanding the testimony of Vicky Barron and Evelyn Lamison to the contrary, which I find lacks credibility. Without question, there were bruises, scratches and bug bites on L.M., A.M., and A.C. during their stay at Respondent's foster home. Some of these scratches and bruises occurred in and around Respondent's home, some of them occurred at the Busy Bee Preschool. On at least one occasion (March 12, 1998) A.C. fell while in the doctor's office and bruised his face. This bruise was noted in the Busy Bee Preschool notes, as were other scratches and bruises to the children received at home or at the Busy Bee Preschool. The incident of March 12, 1998, was documented by the doctor's office. In fact, it became the basis of an abuse report filed against Respondent which was determined to be unfounded. This alleged abuse was not reported until June 4, 1998. There is no evidence to support the allegation that Respondent told Desiree Smith that the bruise to A.C.'s face which occurred at the doctor's office occurred at the Busy Bee Preschool. Another abuse report was filed against Respondent concerning L.M. and A.M. on March 24, 1998, which was closed as unfounded. Vicky Barron testified that she was the reporter in both abuse reports. She also testified that she disagreed with the Child Protective Investigator's finding that there was no evidence of abuse. Her disagreement was such that she contacted the Investigator's supervisor in an attempt to have the finding reversed. Based on the testimony of the Department personnel and the Busy Bee Preschool personnel who testified at the hearing, it is clear that these bruises, scratches, and bug bites were no more or no less severe than bruises, scratches, and bug bites experienced by other active children the age of L.M., A.M., and A.C., notwithstanding the testimony of Vicky Barron and, to some degree, Evelyn Lamison to the contrary, which I find lacks credibility. Although there is no allegation concerning the Respondent's home, it is clear that Respondent kept her home neat, clean, and safe (although there was some clutter at times). However, when a matter concerning the children's safety was brought to Respondent's attention it was corrected. There is insufficient evidence to show that Respondent failed to provide a healthy and safe environment for L.M., A.M., and A.C. and to keep them from harm. While there may have been problems between Kristie Huggins and Eric Huggins, Kristie Huggins did not anticipate a separation until April 23, 1998, when Eric Huggins failed to return home after his trip out of town. Through Patty Fazzino, Respondent advised the Department's office in Tallahassee, Florida, of the separation. Subsequently, the Department's Tallahassee office advised the Lakeland office. Although Respondent did not directly notify the Department's local foster care licensing personnel, the Respondent did not intentionally or unintentionally fail to notify the Department of her separation from Eric Huggins. Likewise, Respondent did not fail to immediately notify the Department of any illness or accidents concerning L.M., A.M., and A.C. which required department notification. It appears from the testimony of Mary Jordan that Respondent has completed the necessary hours of training for relicensure but would need to complete some paper work.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Children and Family Services enter a final order granting Respondent Kristie (Huggins) Pfingston her family foster care license. DONE AND ENTERED this 2nd day of April, 1999, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of April, 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 Jack Emory Farley, Esquire Department of Children and Family Services 4720 Old Highway 37 Lakeland, Florida 33813-2030 Raymond A. Goodwill, Jr., Esquire 107 Avenue A, Northwest Post Office Box 2334 Winter Haven, Florida 33883
The Issue The determinative issue in this cause is whether Petitioners "abused" and "neglected" foster children in their care, as those terms are defined in Sections 39.01(2) and 39.01(45), Florida Statutes (2000). As a result of the alleged abusive neglect, two subsequent issues are raised: (1) whether Petitioners' foster home license should be revoked for the reasons as stated in the Administrative Complaint dated July 20, 2001; and (2) whether Respondent's denial of Petitioners' requests to adopt the "M" sibling and to adopt the "T/S" sibling foster children, based primarily upon the allegations in the Administrative Compliant dated July 20, 2001, as explained in a denial letter dated January 18, 2002, was appropriate.
Findings Of Fact Based upon observation of the witnesses and their demeanor while testifying in person and by taped interviews, the documentary materials received in evidence, stipulations by the parties, evidentiary rulings during the final hearing, and the entire record compiled herein, the following relevant and material facts are found. At all times pertinent to the issues herein, Respondent, the Department of Children and Family Services, was the state agency responsible for receiving and approving applications for foster care licenses and for monitoring, regulating, and if necessary, suspending or revoking foster parent licenses pursuant to Section 409.175, Florida Statutes. At all times pertinent to the issues herein, Respondent, the Department of Children and Family Services, was the state agency responsible for receiving, evaluating, approving or denying applications for adoption of foster children pursuant to Section 63.062, Florida Statutes, and Chapter 65C-16, Florida Administrative Code. Petitioners' Foster Care Licensure History Petitioners are married and are the parents of two biological children. Mrs. Sawyer was reared with foster children and has always desired to become a foster parent. Petitioners were initially licensed by the Agency as foster parents in October of 1986, and six months later on April 20, 1987, Petitioners voluntarily closed their foster home due to Mrs. Sawyer's complications with the pregnancy of their second child. During the above six-month licensed period, Petitioners successfully fostered ten children, the last child was removed by the Agency from the foster home in March 1987. In December 1986, two months after initial licensing, Petitioners were the subject of an abuse report alleging spanking a child. The Agency's investigation concluded that the abuse report was "unfounded,"4 and closure was recommended by the Agency's investigator. On September 7, 1987, the Agency again licensed Petitioners as foster parents. Eight months thereafter, on May 23, 1988, the Agency again closed Petitioners' foster home. On August 10, 1988, three months later, the Agency, for the third time, licensed Petitioners as foster parents. Mrs. Sawyer acknowledged using corporal discipline on a foster child during the 1988 licensure period. As a result of the corporal punishment incident in 1988, the Agency required Petitioners to attended its Model Approach to Partnership in Parenting (MAPP) classes, which Petitioners attended and completed. The 1988 licensure of Petitioners as foster parents was specifically granted for the "T/S" sibling group who, with voluntary permission of their biological parents, had been living with Petitioners for approximately two months before their official placement with Petitioners by the Agency. Since 1988, the Agency has annually renewed Petitioners' foster care license.5 Responding to the requests of the Agency, Petitioners on occasions fostered as many as 16 to 20 foster children. Petitioners' foster home was frequently used by the Agency for unannounced "overnight" foster care, many of which extended into protracted foster care periods. During periods when the Agency's need for foster home beds was pressing, the Agency's rule-of-five was waived by the Agency's District Administrator so that Petitioners could and did house more children.6 The record reflects no evidence of complaints of abuse or any other complaints during the periods the Agency needed and made use of Petitioners' home to foster children. The evidence of record, viewed chronologically, reflects a protracted period of intense investigation of allegations which, if true, were apparently ongoing over a period of months prior to the filing of Abuse Report 2000-198255, the basis of the Agency's intended revocation of Petitioners' foster care license. Petitioners' latest license was issued on August 24, 2000, and was effective until August 24, 2001. This August 24, 2000, foster home license is the subject of the Agency's revocation notice, which states: The revocation is based on the following reasons: Between December 21, 2000 and March 1, 2001, the Department of Children and Families investigated eleven reports of abuse and neglect involving your home. In Florida Abuse Hotline Report 2000-198255[7] it was concluded that there were verified findings of excessive corporal punishment and confinement, bizarre punishment and excessive restraint committed by Cynthia Sawyer towards several foster children in her care. The report also noted several instances of inappropriate physical punishment, which is a violation of the foster parent disciplinary policy. These incidents are considered "an intentional or negligent act materially affecting the health and safety of children in the home or agency" and a violation of the licensing rules promulgated pursuant to section 409.175, Florida Statutes. Section 409.175(8)(b) 1 and 2 Florida Statutes; 65C- 13.010(1)(b)5 Florida Administrative Code. (emphasis added) The Agency's allegations of neglect and abuse revolved around four specific types of disciplinary activities that are alleged to have occurred on or after August 24, 2000, the date the current foster care license was issued, and to have terminated on or before March 1, 2001, the date the Agency removed children from Petitioners' home. The four specific types of disciplinary activities are: (1) excessive corporal punishment and confinement, (2) inappropriate physical punishment, (3) bizarre punishment, and (4) excessive restraints.8 In support of those allegations, the Agency presented the testimonies of several foster children, video- taped interviews of three foster children made in March 2001, approximately one month after removal from Petitioners' home; the testimony of another foster care parent; the testimony of a Guardian Ad Litem; and the testimonies of several of the Agency's employees. Mike Katz, agency employee, prepared the Administrative Complaint but had no personal knowledge of the abuse allegations contained in Abuse Report 2000-198255, which formed the basis for the Administrative Complaint he prepared. Mr. Katz acknowledged that his understanding of the Agency's practice and policy was that "one incident of corporal punishment" did not equate to foster care license revocation. According to Mr. Katz, evaluating corporal punishment allegations requires all factors be taken into consideration and the totality of circumstances be reviewed; the intended result is a fact specific determination for each case of alleged corporal punishment. Kate Kimball's, the Sawyers' family service counselor, testimony was primarily concerned with agency reports dating from December 3, 1996, through the year 2000. Her testimony regarding and relating to matters that occurred prior to December 21, 2000, are not relevant nor material to issues of foster home license denial as stated in the Administrative Complaint that is challenged by Petitioners. However, Ms. Kimball's testimony regarding the Sawyers' life-style during the period she was their case worker is relevant and material to the issue of denial of the Sawyers' application to adopt the "M" children. The record reflects that in 1999, while fostering the "T/S" and the "M" siblings under the Agency's District Administrator's waiver of the rule-of-five policy, Petitioners were given an "Above Satisfactory" evaluation by the assigned foster care case worker, Kim Bryant. Ms. Bryant reported that the Sawyers are "very involved, supportative of the children's extra curricular activities and educational needs; show children much needed attention and affection; children and foster parents seem very fond of each other and there is much improvement with the children educationally and emotionally and they appear to have adjusted well in the home." Ms. Bryant's report is undisputed and credible. One year later, Hotline Report 2000-078274 was filed containing an allegation of medical negligence against Mrs. Sawyer as a result of her attempt to refill a prescribed medication for a foster child in her care after the child had taken all the medication. In this particular instance, the Agency had failed to provided Mrs. Sawyer with the child's medical record when the child was placed in her foster home. This medical negligence allegation was resolved when the case worker assigned to the Sawyers secured from the child's file the physician's prescription refill order. The Hotline Report was closed by the Agency with "No indicators of alleged maltreatment-or abuse/neglect." On June 26, 2000, and after the Sawyers added separate bedrooms and bathrooms for the girls and separate bedrooms and bathrooms for the boys to their home to accommodate 16 children, their case worker, Ms. Kimball, wrote, "It appeared that the Department has continued to utilize their home, as we have had no alternatives." The home study case worker's comments are revealing and reliable. It is reasonable to infer that the Agency was satisfied with the Sawyers' methods of disciplining foster children in their home, when they met the Agency's need for foster beds. However, when the Agency's need for foster beds were apparently met by other resources their prior position of satisfaction with the Sawyers, for reasons not entirely clear from the record, took a sudden 180-degree turn-about from satisfaction to dissatisfaction, within a six-month time period from June 26, 2000, to December 21, 2000. The case worker assigned to the "M" children, Anjanet Stilwell, reported that the Sawyers' foster home was "a wonderful foster home--they were very cooperative and caring." Case worker, Karen Braden, who was in the home twice weekly regarding kids assigned to her, wrote, "Cindy is great! I have no concerns regarding placement of my kids. I truly don't know how she does it!" I find Ms. Stilwell's and Ms. Braden's opinions acceptable and reflective of the Agency's approved satisfactory view of the Sawyers as foster parents for many children who were housed solely by the Agency's waiver of its rule-of-five policy and for its benefit. One foster care referral report regarding the "T/S" children written by case worker Heather Blair was considered at the Adoption Applicant Review Committee (AARC) staffing. In her report, Ms. Blair summarized Psychologist Lisa Gaise's conclusions that: "3 T/S children reported being paddle [sic] and 'the context in which these clear disclosures were made was so natural as to dispel any questions of the veracity of their statements.'" Apparently the AARC staffing considered Ms. Gaise's comments credible in their decision to deny the adoption application. The fact of the matter is that Ms. Blair's statement regarding the "truth" and acceptance of Lisa Gaise's opinion that the child's statement were true, is not accepted for the truth asserted and, therefore, is not credible.9 Bobby Cooper, another agency witness, commenced his investigation of Abuse Report 2000-198255, on December 21, 2000, at 4:00 p.m. Mr. Cooper's investigation consisted entirely of reviewing reports of other agency investigators. Mr. Cooper had no personal knowledge nor had he personally sought independent collaboration of statements contained in the reports he reviewed. His testimony is not credible. Kate Kimball, the case worker assigned to Petitioners' foster home, often made announced and unannounced visits to Petitioners' foster home, as required by Agency policy. Ms. Kimball was in close and constant contact with the foster children and the foster parents during her visits to the home. Ms. Kimball was required to (1) observe the foster children, speak in confidence with each child individually, immediately report any "signs" of abuse or "suspected abuse," and to (4) cause "removal" of a child or children from abusive foster home situations. Ms. Kimball never requested nor caused removal of a child from Petitioners' foster home during the period of December 21, 2000, through March 2001, the period the abuse reports were allegedly "verified." Detective Christi Esquinaldo was assigned to investigate this case by Hillsborough County Sheriff's Department. Her investigation consisted of interviewing foster child L.S., reviewing the abuse reports, and creating a matrix from those reports. The matrix consisted of Detective Esquinaldo's listing the names of children who were alleged to have been subjected to a specific abusive discipline crossed referenced by the names of the children who made the allegations. According to Detective Esquinaldo, L.S. told her that the Sawyers "made children stand in a corner for three to four hours" as punishment, and Lil David was restrained to a chair for "three to four hours." However, during her testimony at the hearing, L.S. denied having made those statements to Detective Esquinaldo. L.S.'s testimony at the final hearing is credible. In closing her investigation, Detective Esquinaldo recommended to the State Attorney's Office the direct filing of a felony charge of Aggravated Child Abuse against the Sawyers. The Hillsborough County State Attorney's Office, citing "numerous inconsistencies in the statements of the children," declined to file any charges against the Sawyers and closed their files on the matter. After reviewing the children's testimonies of record, I am compelled to agree with the Hillsborough County State Attorney Office that the "inconsistencies of the statements of the children" render their collective testimonies unreliable and insufficient to provide a preponderance of evidence necessary to establish a fact. None of the adult witnesses, presented by the Agency, possessed knowledge acquired through collaboration of the children's stories from independent sources and/or their investigations regarding the abuse allegations alleged in the Complaint. The Agency's employees' initial and total acceptance of the children's recollection of time, i.e. as "all day" and "all night," should have, but did not raise reasonable concern regarding each child's ability to differentiate between fantasy and reality and the child's accuracy of recall as well. The children's story-line, that Petitioners forced each of them to walk, to stand in time-outs, to dig holes, to sleep in their beds or do any other activities "all day" or "all night," was testified to as a form of punishment and not discipline for acting up. Accepting as true, accurate, and realistic, their identical versions of four specific experiences from the several children without more does not equate to credible nor collaborative evidence. The testimonies presented by several foster children at this hearing were, at best, confusing, conflicting and contradictory. When asked specific questions about the several forms and methods of discipline, the unanimity of their responses were: stand in the corner "all night," dig holes "all day," walk in circles "all day," and sleep in the bed "all day." The fact that the children's testimonies clustered in a certain position (sibling groups wanting to stay together as a group and those sibling groups wanting to be moved to another foster home as a group gave almost identical answers to questions relating to specific disciplines) does not mean nor imply that their testimonies were necessarily accurate, realistic, or true. In fact, the record reflects that several of the testimonies initially given by the children to the Agency were in conflict with their testimonies subsequently given to the Agency representatives and testimony given at the final hearing. Considering the children's testimonies in the context of the children's ages; the children's physical sizes; the physical improbability of a small child actually squatting, with knees bent, against a wall with both arms held out in front of the body or held out to the sides of their bodies all day; and their description of time as "all day" and "all-night," rendered their collective testimonies unrealistic, unreliable and, therefore, not credible. Steve Barber, Petitioners' pastor and the one who has interfaced with the foster children, based upon his experience as a former high school football coach, gave undisputed testimony that the physical size and stature of the young children made it physically impossible for any of them to "stand, squat, dig or walk in circles, all day." Based upon the testimony of Mr. Barber and the unrealistic testimonies of the several children, Respondent has failed to prove that Petitioners committed "excesses" in administering policy discipline, by imposing time-outs, separation from other children, grounding, loss of privileges, and by assigning other chores. I find that the cumulative testimonies of the foster children found in the Agency reports in evidence and of those children who testified at the final hearing unreliable, inconsistent, devoid of details, physically impossible in most instances and, therefore, insufficient to establish by a preponderance that the Sawyers subjected them to: (1) excessive corporal punishment and confinement, (2) inappropriate physical punishment, (3) bizarre punishment, and (4) use of excessive restraints as punishment as alleged in the Administrative Complaint filed in this cause. Of the three video-taped interviews reviewed by the undersigned, the interview of D.I. revealed a reliable and detailed account of the daily life and activities of the foster children in the Sawyers' home from an articulate child with personal knowledge and accurate recall of events. First, D.I. was in the Sawyers' foster care for a period of seven months. Second, D.I. appeared to be bright, intelligent, articulate, straight-forward, and he was definite and clear in his responses to questions asked by the Agency's spokesperson. Third, D.I.'s memory of details was complete, uncompromising, realistic, and reasonable. Fourth, D.I. acknowledged that his possibility of being reunited with his biological mother was nonexistent, and he would probably be in foster care until his majority, if not adopted, preferably by the Sawyers. Fifth, he is familiar with and aware of foster children, individually and as sibling groups "working the foster care system for their desired ends by telling stories." During his seven months' stay in foster care with the Sawyers, D.I. testified that he never saw nor was he made aware by other children of any child punished by the Sawyers in the form of being forced to stand in time-out "all day," forced to dig holes "all night," or forced to walk in circles "all day." D.I. knew that Lil L.S. pooped in her pants and smeared the poop over the walls of the foster care residence. He knows this because he was one of the older children who volunteered to clean the poop off the walls; he remembers these incidents because the walls had "white spots" where the cleaning solutions were used. He also remembered because Mrs. Sawyer would put white powder on the bedroom floor leading from Lil L.S.'s room to other parts of the house. In the morning when Lil L.S. was awaken and asked about poop on the walls, she would blame other children, but her foot prints would prove contradiction of the story of not having gotten out of bed during the night. According to D.I., Lil L.S. was never "hosed down outside" the house after pooping on herself. Each time Lil L.S. pooped on herself, Mrs. Cindy would require her to go into her bathroom10 and bathe herself. When asked about household chores and work around the house as a form of punishment, D.I. answered that older children would be offered the opportunity to "work outside" with Mr. Sawyer on "things around the house," only if that child wanted to work outside. If not, the child was given the option to stay outside and play or to go inside and watch T.V., play games, or do other things. D.I. was emphatic that the opportunity to do other things was made available to each child only after that child completed his or her homework. Homework was always first, and some children got in trouble because of not doing or completing their homework. According to D.I., the younger children who played outside would customarily play in the round-about driveway, the yard, and on the Jungle Jim play set. The older children would customarily do other things. D.I.'s examples of "doing things around the house" were: helping Mr. Sawyer work on his truck; putting together and/or repairing the Jungle Jim swing-slide play set; helping to dig a trench line to lay pipe for the new water heater connection; tending to and caring for the animals; planting trees and stuff; and painting and building additional bathrooms and bedrooms onto the house. According to D.I., all outside activities were made available to any children who wished to participate in them instead of playing among themselves. When asked, D.I. was empathic in his answer that no child, "as a form of punishment," was forced to assist Mr. Sawyer in "doing things around the house," if they wanted to help they could, if not, then other activities were available and that no child was handcuffed nor had he seen any (metal) handcuffs at the Sawyers' house, save his pair of red plastic toy handcuffs that came with a toy set the Sawyers gave him. D.I., from observation, knew Lil David to be self-mutilating.11 D.I. recalls that "Lil David would sometimes just pick himself to make himself bleed." During his seven-month stay and on more than one occasion, in passing, D.I. would see Lil David in bed at night with velcro restraints on his wrists and the bed to stop him from picking himself and making himself bleed. "Mrs. Cindy did this to keep Lil David from picking himself when he was asleep."12 Regarding meal times and meals at Mrs. Cindy's, D.I. stated that all the children ate the same meal at the same time "cause there was so many of us and Mrs. Cindy had no time for separate meals and we [older children] helped to feed the young children, we did help." When asked about peanut butter sandwiches as a form of punishment, D.I. responded, "Those children who had been bad or were in time-out at mealtime were separated from the other children and given peanut butter sandwiches to eat while in their time-outs. But Mrs. Cindy would say to them 'say you are sorry and you can join us.'" He never saw nor knew of a child in time-out (against the wall) for "hours." The longest time-out he could recall was about "20 minutes," and that was because the child was "acting up" in the time-out and had additional time added to the time-out. D.I. was familiar with the "T/S" and (other) siblings. He knew from personal experience in foster care that older siblings would instruct their younger siblings on all matters: what to say, when to say it, how to act, and how to act up. D.I. was personally familiar with "foster homes" and the means and methods of "getting out of one" and "staying together" as a sibling group and getting into another as a group. When asked about "corporal punishment" i.e. spanking with a wooden paddle and/or slapping with hands, D.I. testified that during his seven-month stay, he knew of no child to have gotten spanked with a wood paddle. "I never saw a wood paddle." Regarding "getting slapped by Mrs. Cindy" as punishment, D.I. answered that Ms. Cindy would "tap" you on the back of the head, butt, or shoulder "to get your attention, like if she was talking to you and you were watching T.V. and not answering her but she never slapped any of us for punishment." This method of getting one child's attention by touching is reasonable when considered in the context of the Agency's waiver of its rule-of- five policy so as to place as many as 16 to 20 children in the Sawyers' foster care home. 13 The video testimony of D.I. is accurate, detailed, reasonable, realistic, based upon his personal knowledge, undisputed and, therefore, credible. Based in part upon the video testimony of D.I., Respondent has failed to establish by a preponderance of evidence that the Sawyers subjected a foster child in their care to: (1) excessive corporal punishment and confinement, (2) inappropriate physical punishment, (3) bizarre punishment, and (4) use of excessive restraints for the time period alleged in the Administrative Complaint. The Sawyers' admitted use of velcro restraints on Lil David was neither excessive, punitive nor disciplinary, but rather was for Lil David's protection from harming himself. The Sawyers' used velcro restraints on Lil David during the day only when he was in time-out and sitting in a small rocking chair and during the night when he was put to bed. The evidence of record by testimonies of virtually every witnesses who knew Lil David knew him to be a self-mutilator. The use of restraints is an acceptable, preventative method for protection in this situation. The record contains no evidence that the Agency provided the Sawyers with an evaluation report of Lil David upon his placement nor during his stay within their foster home. Lil David's medical report would have advised the Sawyers of Lil David's self-mutilation problem. It is a reasonable assumption that had the Agency provided Lil David's medical records, the Sawyers would have been alerted to Lil David's self-mutilation problem and would have had the benefit of the Agency's instructions regarding care and protection for Lil David's problem of self-mutilation. The Sawyers' admitted use of velcro restraints reflects a caring and sincere effort of the foster parents to protect the child from hurting himself. In the absence of information from the Agency regarding Lil David's condition, the Sawyers' use of an acceptable, safe and preventative method of care for this particular problem reflects their efforts to comply with the "spirit" of the rules regarding foster parent responsibilities. The record contains no evidence that the Sawyers' use of velcro restraints to prevent Lil David's self- mutilation was "willfully harmful" or "neglect" or an "abusive" act of intentional punishment. Bobby Cooper's, child protection investigator, reported findings and conclusions were based entirely upon statements provided by individuals he interviewed. The record contains no evidence of collaboration to substantiate testimonies of the children. Therefore, Mr. Cooper's testimony is hearsay without support and therefore, not credible. Finally, consideration is given to what is not in evidence. First, the record in this case contains no evidence of a child alleged to have suffered ongoing neglect and abuse in the form of excessive, bizarre,14 and inappropriate punishment, or to have borne body marks or bruises resulting from the alleged treatment by the Sawyers. Second, the record in this case contains no evidence of a Sawyer-housed foster child to have suffered "physical, mental or emotional injury" as the result of the alleged negligent and abusive treatment. Third, the record contains no evidence from which it could be inferred that a foster child removed from Petitioners' home suffered a "discernible and substantial impairment in the ability to function within the normal range of performance and behavior" as a direct result of the alleged abusive discipline.15 The evidence of record supports a reasonable conclusion that Mrs. Sawyer was proactive in seeking the assistance of local politicians and state officials to accomplish her apparent goal of responsive and exceptional services from the Department for her foster children. It is undisputed that the Sawyers, with the advice and consent of the Department, had more foster children than was reasonable to expect only two adults to provide a minimal of custodial care. Permitting the Sawyers to house as many as 16 to 20 foster children, plus their two biological children, at any point in time, was permissive and self serving by the Department and was overreaching acceptance by the Sawyers. It is a reasonable inference that in this case both the Department and the Sawyers engaged in a mutual course of conduct to satisfy their respective needs and desires. When the mutually beneficial relationship came to a close, a reversal of opinions and recommendations from the Department regarding the Sawyers occurred. The Sawyers, who had been described by the Department as "unbelievable foster parents," became merely unbelievable when confronted with and evaluated by conflicting stories of 14 foster children removed from their home. Denial of Adoption Application for the M sibling group Turning to evidence in the record regarding the denial of Petitioners' application to adopt the four "M" siblings, the fact that some animosity existed between Ms. Gains16 and Mrs. Sawyer, became readily apparent during Ms. Gains' testimony. The existence of animosity was further confirmed by Ms. Gains' detailed chronology of alleged abusive acts and omissions by Mrs. Sawyer over a period in excess of one year. When answering questions asked by the Agency's representative regarding Ms. Gains' statements and opinion of Mrs. Sawyer, D.I. answered: "She [sic] said handcuffs and other things about Mrs. Cindy so as to get kids moved out of Mrs. Cindy's house to her house." Based upon D.I. testimony above, Ms. Gains' testimony given at the hearing and her written report in evidence is biased and unreliable. In the evaluation and review of Petitioners' adoption request, Respondent appropriately engaged in a holistic evaluation of all abuse reports filed, investigative reports, personal opinions, and comments from Department employees, community members and other foster parents, dating from as early as 1986 to the date of the adoption denial. Respondent, in reevaluation of Petitioners' adoption request for the "M" children, should hereinafter be guided by the Findings of Fact herein that allegations of excessive discipline as contained in the Administrative Compliant herein were not proven by the testimonies of the Agency's witnesses and documentary evidence. Therefore, allegations found in Abuse Report 2000-198255 reported or alleged to have occurred within the time period of December 21, 2000, through March 1, 2001, shall not be considered by the Agency in its reevaluation of the Sawyers' application to adopt the "M" siblings; being mindful that the "M" siblings' desire to be adopted by the Sawyers is in the "M" child(ren)'s best interest.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order granting renewal of Petitioners' Foster Care License. It is further RECOMMENDED, that in accord with the expressed desires of the "M" siblings to be adopted by Petitioners, that the Department enter a final order granting Petitioners' application to adopt the "M" siblings. DONE AND ENTERED this 13th day of November, 2002, in Tallahassee, Leon County, Florida. FRED L. BUCKINE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of November, 2002.
The Issue The issue for consideration in this hearing is whether Petitioner meets the education and experience requirements for licensure as Executive Director or for appointment to the Board of Directors of an adoption agency in Florida as outlined in Rule 10M- 24, F.A.C..
Findings Of Fact At all times pertinent to the issues herein, the Department of Health and Rehabilitative Services was the state agency responsible for the licensing of adoption agencies in Florida and for the certification of the director and governing body members for such agencies. Petitioner was the founder and President of the A Bond Of Love Adoption Agency, Inc.. She was not on the Board of Directors. Petitioner has been a licensed attorney at law in Florida for approximately 10.5 years and has specialized in handling the adoption of children for approximately 8 years. For at least 5 of those years, she has served as an intermediary, an individual thoroughly familiar with the law of and problems related to the adoption process and who serves as, in essence, a facilitator for the parties. Petitioner founded A Bond Of Love Adoption Agency, Inc. as a nonprofit corporation in Florida to assist in the adoption process and as President and attorney for the corporation, has developed a pool of personnel at the agency to provide the resources for the adoption process in the best possible manner. In her activity as Intermediary, Petitioner first meets with the birth parents or the adoptive parents, whichever she represents initially, to determine her clients' needs. It is her practice not only to explain the legal issues involved, but also to determine the client's emotional and service needs and to line up the appropriate professional or lay sources that client might need. In the event her client is the birth parent, she works not only with that individual and the father, but also with the birth mother's extended family to alleviate the grieving process that all will feel at some point in the process. All potential issues are identified and she either counsels with the family herself or puts them in contact with the right other source to help. Petitioner's practice differs radically from the normal intermediary practice since she delves much more deeply into non- legal impacts and issues of the adoption process. She has implemented procedures of communication, where appropriate, to insure the feedback of information from both the birth and adoptive parents which alleviates the anxiety of both and facilitates the healing process in the birth parents who have given up their child. It also supports the process of acceptance by the family of the adoptive child and assists in planning for the answer of future questions by the child about the adoption process. In the course of her practice, she has also handled the adoption of handicapped, biracial, and other children who are difficult to adopt and has facilitated resolution of the additional emotional and financial (medical care costs) relevant to that category of child. Her experience in the human services field, as a result of her frequent work arrangements with the Department, enables her to facilitate the resolution of these problems so that the services are provided and the adoption can proceed. Petitioner is recognized as an expert in the field of adoption law and practice, having done over 400 adoptions. She serves on the advisory board for the Department's agency dealing with mixed racial adoptions; she is a volunteer worker with the guardian ad litem program, the alternative abortion program, and the schools of Sarasota County; she is active and has held leadership positions in the adoption subcommittees of both the Florida and American Bar Associations; is a speaker at numerous legal and other relevant organizations; and has widely published in the field. The current Executive Director of A Bond of Love Adoption Agency, Ms. Martin, has over 17 years experience as a social worker in various specialties, including adoptions. Prior to assuming her current position, she worked for 1.5 years with the Children's Home Society, an adoption agency, in St. Petersburg. While there she worked under an executive director whose job was to raise funds, supervise personnel and the expenditure of funds and resources. As Executive Director for A Bond Of Love, Ms. Martin supervises two adoption counselors and serves in that capacity herself. She also works with out of state adoptions and conducts educational seminars for adoptive couples. From time to time, when social workers were not available to do this work and the social assessment so requires, Ms. Stockham has been called upon to do those reports and they have been at the very least equal in quality and substance to those done by the full time social workers. She has done between 3 and 5 assessments during the current year. The service provided by the Petitioner agency is much broader in scope than that provided by Martin's previous agency, the Children's Home Society. The training she got for this extra work came from Ms. Stockham. She has attended seminars in adoption-related subjects in other areas of the country, and the training she has been given by Ms. Stockham is totally consistent with the information given in those sessions, proving to her that Stockham knows here business. The agency has presented a series of 4.5 hour seminars on adoptions considerations over the years. The majority of these, which are much more in depth than those given by the Children's Home Society, were given by Ms. Stockham who also provides the same service to private adoption clients. Ms. Martin feels that Stockham's experience in the adoptive process, not only as an attorney but also as a counselor, is definitely similar to the human services duties a human services worker provides. She is totally satisfied that Ms. Stockham could do a creditable job in the position of Executive Director of the agency. Ms. Johnson also works for the agency, having had 6 years' experience with the Department as an adoption counselor. In that capacity, over the years she worked repeatedly with the Ms. Stockham and is intimately familiar with her work. Stockham has given her numerous verbal assessments. In each of those cases, she dealt delicately and sensitively with both the birth and adoptive parents and the social and legal matters as well. Ms. Stockham is the best she has ever seen in the adoption process and is very innovative. Ms. Johnson has also observed Ms. Stockham working in seminars and support groups which Stockham helped get started. In these seminars, she provides training for both birth and adoptive parents and does extremely well in handling these sensitive situations. Ms. Stockham is the adoptive parent of two biracial parents and Ms. Johnson did the home assessment of Ms. Stockham's home for the second adoption. She found her to be very knowledgeable and sensitive to the needs of biracial adoptions. She has also had numerous opportunities to review assessments done by Ms. Stockham and has found them to be the equivalent of and more in depth than those done by Department social workers. Over the years, all of the the adoption community professionals have benefited from Petitioner Stockham's expertise in the area. There is no question that Ms. Stockham is a highly skilled and dedicated practitioner in the area of adoption law and her expertise and innovativeness have contributed greatly to the success of the adoption process in Sarasota County. Several practitioners and judges have so indicated in commendatory letters to the Department in support of her application, and it is so found. Ms. Stockham also urges that the Department has followed an inconsistent policy toward the approval of attorneys as Executive Directors of adoption agencies in other parts of the state. In support of this position, she has offered the director resumes and licenses for child placement agencies headed by lawyers. It is found that licensure as an attorney at law in this state is not a disqualification for service as an executive director of such an agency. However, licensure as an attorney is not, per se, proof of possession of the educational and experience requirements set down by the Department's rule. Here, the Department, in its letter of denial which prompted Ms. Stockham's request for hearing, accepted her degree in psychology as meeting the "related field" criterion, but denied the application on the basis of her lack of experience in "human service or child welfare programs." Ms. Stockham's testimony and that of Ms. Martin and Ms. Johnson as to the nature of her work with adoptive and birth parents, aliunde the technical and legal requirements of the adoptive process, uncontradicted by Respondent, shows Stockham's experience falls well within the prescribed arena. Even disregarding the first several years of her practice, when she was new to the field, it is clear that for the past four or five years, her experience qualifies as human service or child welfare experience.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Health and Rehabilitative Services enter a Final Order approving Petitioner Susan Stockham's application for licensure as Executive Director of the A Bond of Love Adoption Agency, Inc., but denying her application and that of any other paid employee to serve on the agency's Board of Directors. RECOMMENDED in Tallahassee, Florida this 27th day of January, 1993. ARNOLD H. POLLOCK 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 27th day of January, 1993. COPIES FURNISHED: Susan L. Stockhan, Esquire 2520 South Tamiami Trail Sarasota, Florida 34239 Anthony N. DeLuccia, Jr., Esquire DHRS, District 8 8695 College Parkway, Suite 217 Fort Myers, Florida 33919 John Slye General Counsel Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32399-0700 Robert L. Powell Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32399-0700
The Issue Whether Petitioners' application for renewal of their family foster home license should be denied on the grounds set forth in the October 17, 1997, letter that they received from the Department of Children and Family Services (Department). 1/
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made: Petitioners' Household Petitioners are husband and wife. They live in a four- bedroom home in Riviera Beach, Florida. Mrs. Wright and her husband have eleventh and twelfth grade educations, respectively. Mr. Wright has been semi-retired for four or five years, and he receives social security payments. To supplement this income, he works on a regular basis as a gardener. Mrs. Wright is a homemaker. Petitioners have six natural children, all of whom are adults and live outside of Petitioners' home. Petitioners also have two adopted children, both of whom live with Petitioners. Their adopted son, Bertain, is 17 years of age. Tracy Michelle, their adopted daughter, is approximately five years younger than Bertain. There are two other current members of Petitioners' household, Tmorris C. and Tavares T., the young sons of one of Petitioners' daughters. Tmorris and Tavares were taken from their mother and placed in Petitioners' custody by the Department in 1996, when Tmorris was approximately 11 months old and Tavares was almost two years of age. Petitioners' Record as Family Foster Home Licensees Petitioners are seeking the renewal of a family foster home license that they were first issued in 1977. In the 19 years that they operated a licensed family foster home, Petitioners cared for many foster children, including those with special needs. They treated their foster children in the same loving and caring manner that they treated their own children, and provided them with a reasonably safe and nurturing environment. At no time during the period that they operated their family foster home did the Department or its predecessor initiate any action to effect the revocation of Petitioners' license. Petitioners were last relicensed in 1996, pursuant to the recommendation of Jo Ann Weisiger, a Children and Families relicensing counselor who issued the following report after conducting a relicensing home study: AGENCY EXPERIENCE Mr. and Mrs. Wright were initially licensed on 09/26/77. COMPOSITION AND DESCRIPTION OF THE HOME The Wrights reside in Riviera Beach, just north of 8th Street, near schools, churches and other health and recreational facilities. Mr. Wright is painting the interior of the house. Current residents of the home are Sam Wright, age 73; Ruby Wright, age 62; adopted daughter, Tracy Michelle Wright, age 10; and son Berta[i]n, 14. There have been no major changes in the household during the past year. FOSTER CHILDREN IN THE HOME/QUALITY OF LIFE During the past year, the Wrights have cared for 16 foster children. There are currently 6 foster children in the home; Julius [H.], 5; Robert [D.], 7; Kenneth [J.], 7; Sheanna [W.], 7; Steven [W.], 6; and Amanda [W.], 4. There have been issues arising concerning allegations of physical discipline in the home, but none of these could be substantiated. The children have been appropriately clothed during licensing visits. Mrs. Wright responds to school concerns and transports to medical appointments. During a visit to the home on 3/20/96, the children all responded affectionately to the foster parents, and seemed happy and adequately cared for in this home. The children have been interviewed on two separate occasions and showed no fear of the foster parents, no signs of marks or bruises, and made no statements indicating that they have been spanked. The two older Willis children have severe developmental and emotional problems, and the Wrights have requested that they be replaced as soon as possible. They are difficult to handle, and inappropriately placed in this home. EMPLOYMENT/FINACES Mr. Wright is retired and the Wrights receive $1600.00 in Social Security and retirement income. They appear to manage their finances adequately. HEALTH AND SAFETY ISSUE Although Mr. Wright is in his seventies, he is active and involved with the children. Sanitation inspection on 2/21/96 was satisfactory. IN-SERVICE TRAINING Both foster parents completed Mini Mapp on 5/17/95. They will have 7 hours in this relicensing period, and attended the MAPP 11 training on 2/20/96 for an additional 3 hours. REFERENCES/SCREENING Local and PBSO law enforcement checks showed no records for the Wrights, and the Abuse Registry check was clear. Mr. Wright has been re-screened for fingerprints, as the original fingerprint records were lost from 1987. There are no new household members. No staff inquiries were returned, but there have been no major concerns expressed by any of the counselors who visit the home. The concerns about spanking the children have been addressed, and there is no indication that the Wrights are using inappropriate discipline. SUMMARY/RECOMMENDATIONS Relicense for 3 children, school age. Due to Mr. Wright's age, over capacity should be avoided whenever possible. In early 1996, as part of the license renewal process, Petitioners signed an "Agreement to Provide Substitute Care for Dependent Children." In so doing, they agreed to, among other things, the following: We are fully and directly responsible to the department for the care of the child. . . . We will accept the above board rate per month [$185.00] on behalf of the child in accordance with the department's established uniform rate structure for dependent children. . . . 15. We will comply with all requirements for a licensed substitute care home as prescribed by the department. . . . Petitioners last had foster children in their home in December of 1996. At that time only three of the six foster children mentioned in Ms. Weisiger's report remained in the home. Sheanna W., Steven W., and Amanda W. had been placed elsewhere at Petitioners' request. The Department's Allegations: What the Evidence Shows Specific Allegations in the October 17, 1997, Denial Letter Alleged Lack of Interest in Educational Needs Petitioners took an interest in the educational needs of their foster children. They asked their foster children, on a regular basis, if they had homework and, if the children responded in the affirmative, made sure that the children did their homework. Petitioners themselves did not assist the children in completing homework assignments, but, if the children needed such assistance, Petitioners made arrangements for other members of the family (who were better equipped to provide assistance) to help the children. Kenneth J. is the foster child referred to in the second and third sentences of the paragraph of the October 17, 1997, denial letter detailing Petitioners' alleged "[l]ack of interest in [their foster] children's educational needs" (Education Paragraph). If in fact Kenneth told a counselor that Petitioners ignored his request for help in completing the assignment referred to in the second and third sentences of this paragraph, 3/ Kenneth was not being truthful. If Kenneth did not receive any assistance at home on this project, it was only because he did not let Petitioners know that he needed help. He invariably told Petitioners, when asked by them about his homework, either that he had done his homework at school, or that he knew how to do it without anyone's help. The foster child involved in the "permission slip" incident discussed in the fourth sentence of the Education Paragraph was actually Robert D., not Kenneth J. (as the paragraph suggests). Although Robert's teacher may have sent home with him a form for Petitioners to sign to permit Robert to go on a class trip, Robert never presented the form to Petitioners. Instead, he told Mrs. Wright that he had lost the form. Mrs. Wright advised Robert to ask his teacher for another permission slip. The next morning, Robert's teacher telephoned Petitioners and spoke with Mrs. Wright about Robert's failure to hand in a signed permission slip. Mrs. Wright explained to the teacher that Robert had told her that he had lost the permission slip he had been given to take home. The teacher advised Mrs. Wright that she would send Petitioners another permission slip for them to sign. Upon receiving this second permission slip, Mrs. Wright signed it and returned it to the teacher, and Robert thus was able to go on the trip. Julius H. is the foster child who, according to the fifth sentence of the Education Paragraph, allegedly had accumulated in his book bag four weeks worth of papers that were "sent home" with him. Julius was in kindergarten at the time. Mrs. Wright actually saw these papers that Julius had brought home from school with him (in his book bag) during this four-week period. After Mrs. Wright removed the papers from the book bag, Julius put them back in the bag, explaining to Mrs. Wright that he needed to keep the papers. Alleged General Lack of Interest in Needs of Foster Children Petitioners made a good faith effort to meet the individual needs of their foster children. Kenneth J. is the foster child referred to in the first and second sentences of the paragraph of the October 17, 1997, denial letter detailing Petitioners' alleged "general lack of interest in the individual needs of the foster children placed in [their] home" (Needs Paragraph). It is true that, at first, Petitioners did not have a Medicaid card for Kenneth, as alleged in this portion of the Needs Paragraph. There is, however, no truth to the assertion that, because they did not have his Medicaid card, Petitioners did not get the vitamins that had been prescribed for Kenneth. In fact, they purchased the vitamins with their own funds. Furthermore, Mrs. Wright told Kenneth's counselor, the next time she saw the counselor, that she did not have Kenneth's Medicaid card. Robert D. is the foster child referred to in the third sentence of the Needs Paragraph. Mrs. Wright did in fact learn that Robert had been playing with fire, as this sentence suggests. There, however, was only one such incident (not three) and it occurred, not in the home, but outside of the home in an area where Robert was playing with other children. One of the other children alerted Mrs. Wright, and she went outside to investigate. When she arrived at the scene, the fire was already out. Mrs. Wright spoke with Robert about the matter. He promised not to play with fire again, and he kept his promise. There were no subsequent incidents. Following the incident, Mrs. Wright telephoned Robert's counselor and told the counselor what Robert had done. The Restraining Order against Bertain In August of 1996, Bertain was involved in a dispute with Robert D.'s and Julius H.'s brother, Jessie S., who lived across the street from Petitioners' home. The dispute concerned a girl that Bertain and Jessie both liked. Before the dispute arose, Bertain and Jessie were good friends. The dispute caused a rift in their relationship and it escalated to the point where Jessie's aunt, with whom Jessie has living at the time, sought and obtained (on Jessie's behalf) a restraining order (dated August 26, 1996) against Bertain, which provided as follows: THIS CAUSE came to be heard on August 14, 1996 upon Petitioner's application for an Injunction for Protection Against Repeat Violence pursuant to Section 784.046, Florida Statutes, and it appearing that an immediate and present danger of Repeat Violence exists, and the court being fully advised in the premises, it is: ORDERED AND ADJUDGED that Respondent: RUBY WRIGHT O/B/O BERTAIN WRIGHT (MINOR CHILD) is hereby restrained and enjoined from committing any acts of violence, to wit: assault, battery, sexual battery or stalking on the Petitioner: ANNA WHITE & ANNA WHITE O/B/O JESSIE [S.](MINOR CHILD) or any member of Petitioner's immediate family. The Respondent is restrained from threatening the Petitioner or any member of the Petitioner's immediate family, either directly or indirectly, at any time or place whatsoever. Respondent shall not enter on Petitioner's residential premises . . ., or wherever Petitioner may reside in the State of Florida. Respondent shall not enter onto Petitioner's place of employment . . ., or wherever Petitioner may be employed in the State of Florida. Upon Petitioner's request an officer from an appropriate law enforcement agency shall accompany the Petitioner and assist in the execution of service of the Injunction. The following provisions are necessary to protect the Petitioner from Repeat Violence. THE PARTIES SHALL HAVE NO CONTACT IN PERSON, DIRECT OR INDIRET, BY PHONE, BY MAIL, BY THIRD PERSONS, EXCEPT BY COURT ORDER, AT COURT APPEARANCES OR THROUGH ATTORNEYS. Any relief granted by this Injunction shall be effective for a period not to exceed months form the date hereof. The Petitioner may petition the court for extension of provisions of this Injunction prior to the conclusion of the period specified herein. The Clerk of the Court shall forward a copy of this Injunction to the Sheriff with jurisdiction over the residence of the Petitioner within twenty-four (24) hours after its entry. THIS INJUNCTION IS VALID AND ENFORCEABLE IN ALL COUNTIES OF THE STATE OF FLORIDA. This was the first and last time that Bertain was involved in any legal proceeding concerning his conduct. Bertain's dispute with Jessie did not interfere with Bertain's relationship with Robert and Julius. Bertain continued to get along well with both Robert and Julius, notwithstanding the dispute. Mrs. Wright discussed the subject of the dispute and the resulting restraining order with Mary Bosco, a Department administrator involved in the licensure of family foster homes. During the conversation, Mrs. Wright told Ms. Bosco that she (Mrs. Wright) was doing her "best with Bertain," but she could not go everywhere that Bertain went, a comment that should not be construed to reflect negatively upon Mrs. Wright as a parent. It would be unreasonable to expect a parent to accompany a teenage son the age of Bertain (at the time of Mrs. Wright's conversation with Ms. Bosco) everywhere the son went. There has been no showing that Petitioners have acted irresponsibly in discharging their responsibilities as Bertain's parents. Other Specific Allegations In its Proposed Recommended Order, the Department asserts that "Petitioners exhibited poor judgment in allowing the children (T. C. [Tmorris] and T. T. [Tavares]) named in F.P.S.S. #96-125319 to spend time unsupervised with their mother." The evidence establishes, however, that when Petitioners (specifically, Mrs. Wright) brought Tmorris and Tavares to visit their mother (which visits the judge in the dependency proceeding encouraged), Mrs. Wright remained with the boys for the duration of the visit. The Department also states in its Proposed Recommended Order that "Department counselors had to 'beg' Petitioners to cooperate in providing services to the foster children." Although the Department does not identify the children to whom it is making reference, it appears that the Department is referring to Tmorris and Tavares, who technically are not Petitioners' foster children inasmuch as Petitioners are their grandparents and do not receive reimbursement for caring for them. 4/ In any event, the evidence does not support the Department's assertion concerning Petitioners' reluctance to ensure that their grandchildren (while in their care) received needed services. Rather, it appears that, when Petitioners became aware of the children's need for services, they acted in a reasonable and responsible manner. In its Proposed Recommended Order, the Department further alleges that "[a]t one time Petitioner[s] requested that their own grandchildren be removed from their home due to the fact that they were no longer receiving foster care payments for them." Mrs. Wright did initially become upset when she learned that she and her husband would not be receiving any payments from the State for caring for Tmorris and Tavares. She then "thought differently about the matter" and realized that she and her husband had made the right decision in agreeing to assume responsibility for caring for their grandchildren, notwithstanding that they would not be paid for doing so. The additional allegation is made in the Department's Proposed Recommended Order that "Petitioners failed to provide appropriate educational and recreational activities for the children [who lived in their home] and lack the capacity to do so." According to the Department, the children spent "the majority of their hours watching television." The evidence, however, reveals otherwise. Petitioners provided the children with bicycles to ride and games to play. They went fishing with them and took them to the park on a regular basis. Whenever Petitioners went to visit relatives, the children accompanied them. Living with Petitioners did not result in the children being deprived of appropriate educational or recreational activities.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order declining to deny Petitioners' application for renewal of their family foster home license on the grounds set forth in October 17, 1997, letter that they received from the Department. DONE AND ENTERED this 30th day of November, 1998, in Tallahassee, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 1998.
The Issue The issue is whether Respondents' foster home license should be revoked because Respondents allegedly committed negligent and intentional acts materially affecting the health and welfare of foster children entrusted to their care.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: When the events herein occurred, Respondents, Sylvia and Robert Mitchell, held a foster home license issued by Petitioner, Department of Children and Family Services (DCFS). The date of issuance, expiration date, and number of the license are not of record. Respondents operated a foster home with at least one foster child at their residence located at 1907 Helms Avenue, Leesburg, Florida. In late July or early August 1997, a DCFS child protective investigator, Cynthia Ausby, received a copy of an abuse report containing, among other things, allegations of illicit conduct by Respondents with F. P., a female foster child then living in Respondents' home. The abuse report was not made a part of this record, and thus the report's identification number and classification of allegations are not of record. Neither does the record indicate if the alleged perpetrators requested a hearing to contest the report, and if so, the outcome of that proceeding. Based upon an investigation by Ausby, which included interviews with F. P., Respondents, and certain "other people," DCFS issued a charging document in the form of a letter dated October 6, 1997, in which it advised Respondents that their foster home license "is being revoked as of the date you receive this letter" on the ground "a foster child in [their] care, was negligently or intentionally allowed to have contact with an adult relative of [Respondents], even after [they] knew or should have known that the child and [their] relative were engaging in inappropriate sexual behavior." The letter added a charge that "the foster child reports having engaged in inappropriate activities of a sexual nature with Mrs. Mitchell or in her presence." The issuance of the letter prompted Respondents to request a formal hearing contesting the proposed action. While the parties did not specifically say so, based upon the contents of the letter, the undersigned presumes that Respondents' license is inoperative pending the outcome of this proceeding. The foster child in question, who is now "around thirteen or fourteen years old," did not appear and testify at hearing. Therefore, any statements made by her to the investigator are hearsay in nature and cannot be used as the basis for a finding of fact. The same is true as to all statements made to her by "other people" during the course of the investigation. At hearing, both Respondents vigorously denied all allegations of inappropriate conduct with the child, or with having knowledge that the foster child was engaged in "inappropriate sexual behavior" with any other persons. In the absence of any competent, contradictory evidence, their testimony has been accepted. This is especially true since Ausby herself acknowledged that the complaining witness, F. P., was "unreliable" in terms of veracity, and that F. P. came up with the allegations only after she got "upset" with Mrs. Mitchell. It is true that Respondents made certain admissions to Ausby during the course of the DCFS investigation, some of which were inconsistent with each other's statements. While these statements are admissible as an exception to the hearsay rule, at no time did Respondents ever admit that the allegations in the charging document were true. Thus, Respondents' admissions do not substantiate the allegations in the letter.
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 dismissing all charges against Respondents and reinstating their foster home license. DONE AND ENTERED this 21st day of May, 1998, 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 Filed with the Clerk of the Division of Administrative Hearings this 21st day of May, 1998. COPIES FURNISHED: Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 William L. Grossenbacher, Esquire 1601 West Gulf Atlantic Highway Wildwood, Florida 34785 Sylvia and Robert Mitchell 216 Tanglewood Drive Leesburg, Florida 34748 Richard A. Doran, Esquire Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
