The Issue The issue for consideration in this case is whether Petitioner should receive an exemption from disqualification from caring for children, under the criteria set out in Chapter 435, Florida Statutes.
Findings Of Fact At all times pertinent to the issues herein, the Respondent, Department of Children and Family Services, had the responsibility for licensing and overseeing the operation of foster care of children in this state, and, under the provisions of Chapter 435, Florida Statutes, of evaluating and ruling on requests for exemption from disqualification to serve as foster parents submitted by individuals otherwise disqualified from performing that function. Petitioner, Aaron B. Hodges, is currently 29 years old. His wife, Sue, is 38. They have been married since he was 21. The couple has a child of their own, and Mrs. Hodges has an 18 year-old daughter by a previous marriage. On November 20, 1995, the family resided at 4000 North Combee Road in Lakeland, Florida. They operated a family business at that address, in which both participated; a public ranch at which they offered farm parties, trail rides, and wedding receptions; and provided facilities for other similar events. It was a high-stress operation, which occupied the greatest part of the time of both individuals seven days a week. As a result of the constant stress, and, as a contributing factor, the relative immaturity of Petitioner, the couple had undergone a period of domestic strife which culminated in several serious arguments. None of those had resulted in physical contact between the parties. However, on November 20, 1995, the couple was involved in another dispute, as a result of which Petitioner was leaving the family home. He was threatening to take with him some of the parties’ personal property. Because a wedding reception was scheduled for that weekend, Mrs. Hodges objected to his taking the stereo, and strong words were passed between the parties. Mrs. Hodges’ daughter inserted herself into the dispute. Petitioner lost his temper and attempted to force his way back into the house. When he did so, the door struck Mrs. Hodges and she received an abrasion to the ear. In addition, her daughter tried to interpose herself between Petitioner and her mother. In response, Petitioner pushed her backward which resulted in the daughter stepping off the porch, which was one step above the ground. She did not fall, nor was she injured as a result of the incident. Nonetheless, the sheriff’s office was called twice that evening. The first time a deputy responded, Petitioner was not there and the deputy spoke with the wife and daughter outside the residence. At that time, Deputy Barnett observed some redness to the wife’s ear, and he requested the two women write out their statements as to what happened. The statements written by the two women somewhat exaggerated the incident as a result of Mrs. Hodges’ desire to get Petitioner out of the house. At hearing, both women recanted the more serious aspects of their previous allegations, admitting that they had made their statements present a picture of Petitioner’s actions which was far worse than reality. Neither mother nor daughter had or would recount a firm recollection of the incident by the time of hearing, insisting they could not remember the details. Both were sure, however, that neither was hurt nor was either afraid for their physical safety as a result of the Petitioner’s actions. Both described Petitioner as a non-violent person who, at worst, suffered from an immature reaction to stress. After taking the statements of the two women, Deputy Barnett departed the residence but returned somewhat later when Petitioner was present. At that time, based on his prior interview with Mrs. Hodges and her daughter, the deputy arrested Petitioner for battery which consisted of striking Mrs. Hodges and grabbing her about the neck, and throwing a roll of tape at the daughter, in addition to pushing her off the porch. Barnett acted in a manner consistent with a sheriff’s department policy of arresting any perpetrator of an incident of domestic violence. At the time of the arrest, Petitioner was not hostile to the deputy and was cooperative. The story he told the deputy at the time was consistent with what Mrs. Hodges had told the deputy previously. Petitioner stated that his wife had pointed a rifle at him. In reality, though a rifle was used as a weapon by Mrs. Hodges, she did not point the muzzle at Petitioner. She grabbed it by the barrel and used it as a club. Taken together, it would appear that the altercation transpired as was initially reported to the deputy. No doubt Petitioner was aroused and threatened as well as committed a battery on his wife. It is also found that his actions toward her daughter resulted in the girl’s stepping backward off the porch. Petitioner was kept in jail overnight and subsequently released. At his arraignment in County Court on December 4, 1995, Petitioner, appearing without counsel, pleaded guilty to a misdemeanor charge of domestic violence (spousal battery). He was adjudicated guilty and placed on probation for a period of one year. A condition of his probation was that he attend a domestic violence counseling program, perform 30 hours of community service, and pay a fine of $156.50. Petitioner successfully completed all the terms of his probation. The counselor who conducted the court-ordered domestic violence course, James N. Barnett, in a letter dated October 30, 1997, described Petitioner as an excellent participant who was regular in his attendance and attentive in every way. Based on his personal interaction with Petitioner, Mr. Barnett found him to be concerned, sincerely motivated, and of excellent character. Petitioner and his wife have now applied to be foster parents for a young boy, V., for whom Mrs. Hodges has been a foster parent in the past. The child has stayed in touch with her since he was returned to his parents, but he is now back in foster care, and both the child and his mother want him placed in the Hodges’ home. Even after Petitioner’s arrest and conviction, and with the knowledge thereof of the Department, the child was placed with the Hodges in a non-relative placement for six months. The Department did not question the placement nor indicate, at that time, that Petitioner’s conviction was a problem. However, after the six months, Mrs. Hodges had a miscarriage and V. started acting up, and Mrs. Hodges tried to get him placed in the Baptist Children’s home, thinking that was a good place for him. However, V. was placed in a home for delinquent children instead, and when Mrs. Hodges tried to get him back, she was told she would have to apply to be a foster parent. When she and Petitioner did so, they were rejected because of Petitioner’s conviction. Mr. Richardson, a child protective investigator for the Department, met Petitioner and his wife approximately a year to a year and a half ago as a result of their care of a minor child client of his, V., for whom they provided care in the past. He found their home to be an excellent environment and a good place for the child, who was happy there. The child had bonded with both Petitioner and his wife, and Richardson is of the opinion that it would be appropriate for the child to be placed there again. On the other hand, Barbara Sykes, a family services counselor for the department and home finder for District 14, did a home study of the Hodges' home for a specific child, presumably V., at the request of the child’s foster care counselor. As a part of her investigation, she interviewed both Mr. and Mrs. Hodges. When she went to the home, Ms. Sykes was not aware of the charges of domestic violence. However, the Hodges were very forthcoming in talking about it when it came up. The Department is very careful regarding issues of domestic violence, and foster children are removed from a foster home when the issue comes up. Based on the information presented to her, Ms. Sykes concluded there were some unresolved questions as to what actually happened on the night of November 20, 1995. Because of this, she did not complete the home study; she was of the opinion that the issue of an exemption had to be resolved before she could complete it. Nonetheless, based on what she saw and heard at that time, she concluded the home of Petitioner and his wife was not a suitable placement. However, in addition to his attendance in the court- ordered domestic violence program, Petitioner also sought counseling with James R. Johnson, his friend and a minister also licensed as a pastoral counselor, who worked with Petitioner in the area of anger management. As a result of their ongoing relationship, Reverend Johnson has come to the opinion that Petitioner has grown and bettered himself and has learned how to handle stress and anger without reacting to it with impulse. He noted that Petitioner is very good with children and he would have no hesitation trusting Petitioner with the care of his own children if he and his wife were to go out of town. This good opinion of Petitioner, and the conviction that he is very good with and no danger to children, is shared by Ms. Mulvahill, a former employee of the Hodges; Mrs. Hodges’ sister, Mrs. Smith; and Mrs. Murphy, the foster parent to V.’s sister. They all are of the opinion that Petitioner has grown and learned how to control stress and anger and were impressed with the rapport he develops with children and the respect they show him. Because Petitioner’s conviction of the misdemeanor domestic violence charge disqualifies him from being licensed as a foster parent, or of working with foster children, a screening committee meeting was held under the provisions of Section 435.07, Florida Statutes, to determine if Petitioner had demonstrated his rehabilitation to a degree sufficient to support granting him an exemption from disqualification. The committee was chaired by Malcolm Miller, a Department screening coordinator. At the meeting, Mr. Miller was troubled because he did not see what Petitioner wanted to present. Petitioner brought with him only isolated bits and pieces of the documentation sought. In addition, Petitioner appeared reticent and reluctant to discuss the matters at issue to the point some committee members questioned his honesty. Mrs. Hodges seemed to speak for him. At hearing, Petitioner admitted that his presentation at the committee meeting was not fully enlightening, but he claimed the entire process was a humiliating experience for him and intimidated him. This is understandable. He was far more articulate at the instant formal hearing, and presented a favorable impression. It is not difficult to see where the committee could have come to the conclusion that Mrs. Hodges spoke for her husband. Even at the more formal instant hearing, she was not at all reluctant to speak out. The committee asked many questions of Petitioner that Mr. Miller felt were not satisfactorily answered. On the issue of the previous arrests, Petitioner denied any, when in reality his record shows an arrest in 1991 for disorderly conduct. While there was no substantial evidence to show that the instant (1995) incident was alcohol-related, the committee seemed concerned that alcohol was also a problem for Petitioner. In substance, the committee was of the opinion there was a risk this type of conduct could occur again, and the length of time since the incident, only slightly over two years, was not sufficient to support the granting of an exemption. Generally, the Department requires a period of five years to demonstrate rehabilitation. Mr. King, also a member of the committee, concluded that Petitioner had not had enough counseling for domestic violence to indicate rehabilitation, even though Petitioner had completed the court requirements. Counseling, not elapsed time, was the overriding consideration for Mr. King.
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 Aaron B. Hodges an exemption from disqualification from serving as a foster parent. DONE AND ENTERED this 21st day of July, 1998, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK 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 Filed with the Clerk of the Division of Administrative Hearings this 21st day of July, 1998. COPIES FURNISHED: Suzanne Harris, Esquire 6700 South Florida Avenue Suite 31 Lakeland, Florida 33813 Jack Farley, Esquire Department of Children and Family Services 4720 Old Highway 37 Lakeland, Florida 33813-2030 John S. Slye General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700 Gregory D. Venz Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
Findings Of Fact At all times pertinent to the issues herein the Board of Medicine was the state agency in Florida responsible for the licensing of physicians and the regulation of the medical profession in Florida. Respondent was licensed as a physician in Florida under license No. ME 0040325, and at all times pertinent was assigned as Medical Director of Manatee Glens Corporation, (Manatee). Manatee is a corporation which operates a community mental health center and which provides out patient therapy sessions for residents of various Adult Congregate Living Facilities, (ACLF'S). One of the facilities where Manatee personnel provide therapy is Campbell House in Sarasota. A part of Respondent's responsibility as Medical Director of Manatee was to supervise the treatment of patients residing in the ACLF's, to review the appropriateness of treatment and to review the authorizations for treatment. Patient #1 and his wife, Imogene, were married for 52 years. He was a retired officer in the United States Army, and after his military service, worked for several years in the real estate and securities field in the Sarasota area. Some time after his retirement, Patient #1 was diagnosed as having Parkinson's Disease. In 1986, he began hallucinating. His condition deteriorated badly and reached the point where he could not make decisions. Because of that, Imogene obtained a durable Power of Attorney to allow her to conduct her husband's affairs. In March, 1993, when Imogene could no longer care for her husband at home, she placed him in Campbell House. At the time of the placement, Imogene provided the staff with the power of attorney and her home phone number. By this time Patient #1 had ceased communicating and, she believed, could neither talk nor read. Shortly after his placement, on March 30, 1993, the patient was interviewed by Anne Phillips, an outreach therapist for Manatee, to determine if he was a suitable participant in Manatee's outreach program. After she explained the program to him in detail and in what was described as simple terms, Ms. Phillips requested that the patient sign the consent for treatment form for enrollment in the Manatee program. As a result, Patient #1 signed a consent form authorizing Manatee Glens Corporation to provide him with therapy services at the ACLF. There is no evidence that the patient was coerced or threatened in order to make him sign the form. However, Petitioner claims, as does Imogene, that the signature is not valid because Patient #1 was not mentally competent to consent to, or otherwise authorize, such treatment for himself. There is evidence to the contrary, however. Ms. Phillips indicates the patient appeared able to concentrate on what he was being told and to understand what he was being asked to sign. On March 31, 1993, the day after Patient #1 signed the consent form, Manatee Glens began providing therapy services to him. Respondent authorized the treatment plan utilized for the patient. Imogene had never authorized any treatment for her husband, and when, in mid-October, 1993 she learned that he was receiving the therapy sessions, she asked that they be discontinued. By that time, the patient's mind had deteriorated to the point where he did not recognize his wife. There is a conflict in the evidence as to whether the patient was able to participate in or benefit from the therapy sessions which were conducted. Treatment records indicate that at times he seemed to be aware of his peers but he could not name them and could not discuss anything about them. There is some substantial doubt as to whether he even knew the name of the counselor who conducted the therapy sessions, Anne Phillips. He would, at times, sleep through all or a part of a session and often had trouble giving yes or no answers to simple questions. On the other hand, Mr. Djelic, the home operator who observed the patient on a daily basis, reports he regularly read the newspaper and occasionally read a magazine. He was capable of feeding himself, getting dressed and letting others know when he had to go to the bathroom and, in the opinion of Mr. Djelic, was relatively functional. His medications at the time included Senement which has the side effects of confusion, depression and memory impairment. He had both good and bad days depending upon the effects of his medication and his Parkinson's disease. When he was examined by Dr. Schwartzbaum on March 8, 1993, he was diagnosed as having Parkinson's disease, but there was no indication of any mental health limitation, and none of the records presented at the hearing indicated any diagnosis of Alzheimer's disease. The evidence of that diagnosis came solely from the patient's wife and is hearsay. Respondent did not examine the patient in question before authorizing the treatment complained of. He reviewed the patient's medical records, including the report by Dr. Schwartzbaum, and from them concluded that when the patient signed the consent form on March 30, 1993 he was knowledgeable, aware and cognizant about what he was signing, what the treatment entailed, and that he would be paying for the treatment. Respondent also determined that the patient participated in identifying some goals for treatment. Based on this information, Respondent concluded that the patient was competent to sign the consent form. There was no evidence that Patient #1 had ever been declared incompetent by a court or that a guardian had been appointed to manage his affairs.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Administrative Complaint in this matter charging Dr. Einisman with a violation of Section 458.331(1)(p), Florida Statutes, be dismissed. RECOMMENDED this 6th day of September, 1995, in Tallahassee, Florida. 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 6th day of September, 1995. APPENDIX TO RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: & 2. Accepted and incorporated herein. Accepted and incorporated herein except for the diagnosis of Alzheimer's disease which is not supported by any independent evidence or record. Accepted and incorporated herein. First sentence accepted and incorporated herein. Second sentence not proven by competence evidence of record. & 7. Accepted and incorporated herein. First and second sentences accepted and incorporate herein. Remainder not proven by competent evidence of record. - 11. Not proven by competent evidence of record. FOR THE RESPONDENT: - 3. Accepted and incorporated herein. First 5 sentences accepted and incorporated herein. Sixth sentence not a Finding of Fact but a restatement of testimony. Seventh sentence accepted and incor- porated herein. Eighth sentence accepted. & 6. Accepted and incorporated herein. 7. Accepted but considered in light of the fact that the witness is the Respondent. COPIES FURNISHED: Steven A. Rothenburg, Esquire Agency for Health Care Administration 9325 Bay Plaza Boulevard, Suite 210 Tampa, Florida 33619 Richard D. Saba, Esquire 2033 Main Street, Suite 303 Sarasota, Florida 34237 Jerome W. Hoffman General Counsel Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32309 Dr. Marm Harris Executive Director Board of Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue in this proceeding is whether the Department of Children and Family Services should revoke the foster care license of Gladys Kelly.
Findings Of Fact At all times material to this proceeding, Respondent's home was licensed as a foster home, having been issued license No. 0901-08-3 by the Department. Respondent was also employed at a child care facility named Tadpoles and Toads Daycare Center. Her primary duties at the daycare center were kitchen duties, although she spent a relatively small amount of time with some of the children. In 1998 and again in 2001, Respondent signed an Agreement to Provide Substitute Care for Dependent Children in conjunction with her licensure as a foster care provider. In said agreements, Respondent agreed to abide by the Department's discipline policy which she received during Model Approach to Partnerships and Parenting (MAPP) training. According to Janet McMahan, a foster care licensing supervisor for the Department, MAPP training is required of foster care providers and addresses the issue of corporal punishment. Specifically, the training informs the foster care providers that corporal punishment is prohibited in a foster home. Respondent also signed a document in 1993, 1999, and 2001 entitled, "Foster Care: Policy Statement on Discipline." The 1999 and 2001 versions of this document specifically cite Rule 65C-13.010(1)(b)5., Florida Administrative Code, and state in pertinent part: "Prohibited disciplinary practices include . . . hitting a child with an object; spanking a child " Brian Snow was employed by the Department as a family services counselor and protective investigator for approximately two years. He left employment with the Department in April 2002. On October 22, 2001, he received a report about possible medical neglect and other mental injuries regarding children at Tadpoles and Toads Daycare Center where Respondent was employed. He went to the daycare center and interviewed children and staff, including Respondent. The allegations regarding medical neglect did not involve Respondent. However, he investigated allegations regarding Respondent "popping" children on the hands. On October 24, 2001, Mr. Snow went to Respondent's home to investigate allegations that Respondent spanked a child with a belt and hit children on the hands with a plastic folding fan. According to Mr. Snow, two children at Ms. Kelly's home told him that Ms. Kelly hits or "pops" them on the hand when they did something wrong, and one child told him that Ms. Kelly spanked her with a belt. However, as none of the children testified at the hearing, these statements are hearsay. Mr. Snow then again went to Tadpoles and Toads Daycare and again interviewed Ms. Kelly. Shirley Tamul, a childcare licensure counselor for Petitioner, accompanied Mr. Snow to the daycare center for the interview. During that visit, Ms. Kelly admitted to "popping" the foster children on the hand with a plastic fan when the children act up in church or at a store. Mr. Snow and Ms. Tamul discussed the Department's policy prohibiting corporal punishment by foster care parents with Ms. Kelly during the October 24, 2001, visit to the daycare center. During her testimony at the hearing, Ms. Kelly again admitted to "popping" the children on the hand to "keep them in line" when they act up. She adamantly denied using a belt to spank any children in her care. There is insufficient evidence to prove that Ms. Kelly hit any child with a belt, notwithstanding the hearsay statement attributed to one of Ms. Kelly's foster children. However, Ms. Kelly admits to "popping" the children on their hands because of their behavior. The children's hearsay statements to Mr. Snow regarding Ms. Kelly's "popping" them on the hand supplement Ms. Kelly's admission to that conduct. Mr. Snow did not observe any physical injury on the children he interviewed at either the daycare center or Respondent's home.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Department of Children and Family Services enter a final order revoking the foster home license held by Respondent. DONE AND ENTERED this 31st day of May, 2002, in Tallahassee, Leon County, Florida. ______ BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of May, 2002.
The Issue Whether the Respondents' foster care license should be revoked.
Findings Of Fact At all times material to this matter, the Respondents were licensed as a foster home. During the course of such licensure, a minor child, M.A.G., was placed within Respondents' home. It was Respondent, Bertha Sosa's intention to adopt M.A.G. and her minor brother who was also placed with Respondents. Respondents were approved for licensure as foster parents through a private company. Such company was a third party screening agent used by the Department to process foster home applicants. For reasons unknown, such company did not obtain Respondents' signature to or agreement for certain provisions which are required for licensure. For example, all foster home licensees are required to execute service agreements. No such agreement has been located for Respondents. Pertinent to the service agreements are requirements regarding discipline which may be utilized by foster care licensees. In this instance, the discipline policy agreement prohibits: hitting a child with any object; slapping, smacking, whipping, washing mouth out with soap, or any other form of physical discipline; and humiliating or degrading punishment. While the Respondents do not acknowledge that they executed such agreements, it is undisputed that the failure to do so would result in the denial of initial licensure. The only reason Respondents sought initial licensure was to be able to adopt children. They were not then, and were not at the time of the hearing, interested in foster care. The foster care program was the vehicle they chose to be able to adopt. M.A.G. has a history of physical and sexual abuse. It is not uncommon for children with such history to exhibit inappropriate behaviors. Such behavior may include, as described by Mrs. Sosa, "humping." Also, M.A.G. had difficulty with telling lies. Mrs. Sosa admitted that when M.A.G. exhibited inappropriate sexual behavior, she would force the child into a cold shower. Mrs. Sosa admitted that when M.A.G. lied, she would wash her mouth with soap. On or about March 11, 1996, an investigation of abuse allegations began regarding M.A.G. and the Respondent, Juan Sosa. M.A.G. alleged that while Mrs. Sosa was out of the home, Mr. Sosa hit her several times with a broomstick. According to M.A.G., such conduct was the result of M.A.G.'s disobedience and disruptive behavior which culminated in discipline. Bruises consistent with a blunt instrument were observed on M.A.G.'s legs and arm. M.A.G. bragged that she could withstand, or feel no, pain. The bruises were photographed within two days of the alleged incident. Mr. Sosa denied inflicting the injuries sustained by M.A.G.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Department of Children and Families enter a final order affirming the revocation of Respondents' foster care license. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 28th day of February, 1997. JOYOUS D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 28th day of February, 1997. COPIES FURNISHED: Colleen Farnsworth Assistant District Legal Counsel Department of Children and Families 401 Northwest 2nd Avenue, Suite N-1014 Miami, Florida 33128 Lee Marks, Esquire 757 41st Street Miami Beach, Florida 33140 Gregory D. Venz Agency Clerk Department of Children and Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard A. Coran General Counsel Department of Children and Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue in this proceeding is whether the Department of Children and Family Services should revoke the foster care license of Thomas and Shana Stone.
Findings Of Fact At all times material to this proceeding, the home of Thomas and Shana Stone was licensed by the Department as a foster home. Jeffrey G. was placed in the Stones' home on or about November 9, 2001, when he was approximately 10 months old. Two other children, who were eleven and four-year-old siblings, were also placed in the Stones' home around the same date that Jeffrey was placed in their home. The three children slept in the same bedroom which contained a bunk bed and a crib. According to Mrs. Stone, the siblings were unruly and she requested that the Department remove them from their home. The other children were removed from the home on November 12, 2001. On November 16, 2001, the Department received a report alleging that Jeffrey had a bruise three inches in length on his thigh. Jeffrey was brought to the Department's office by a foster care worker on November 16, 2001, for a scheduled visit with his mother. There is nothing in the record to indicate that Jeffrey was brought to the Department on November 16, 2001, as a result of the abuse allegation. Joann Lycett is a licensed protective investigator supervisor for the Department. Prior to becoming a supervisor, she was a protective investigator. During the time she has been an investigator and a supervisor, she took part in between 400 to 500 reports of child abuse or neglect. In addition to her experience as an investigator and a supervisor, Ms. Lycett received specialized training in child abuse investigations and earned certification in the child protection field. Her training includes determining the nature and cause of injuries to children. Ms. Lycett was present at the Department when Jeffrey was brought in for the visit. She observed an oval shaped bruise approximately three inches by two inches extending out from under the child's diaper onto his upper thigh. When the diaper was removed, Ms. Lycett could see bruising on the child's buttock as well. Ms. Lycett observed the bruise to be dark which was an indication to her that the bruise was recent as opposed to a bruise yellow or green in color. From her experience and training, the bruise did not appear to be accidental. Jeffrey was examined on November 16, 2001, by Richard C. Trump, a Child Protection Team medical doctor of the University of Florida.1 Dr. Trump's report reads in part: . . . on the buttocks there are some fairly fresh vertical and linear 1mm wide bruises which are external to the buttock crease. There is a 7x3cm bruise on the left buttock below the aforementioned linear bruises, which ends in a circular bruise at the lower left buttock. The thin linear bruises come together perfectly when the buttocks are compressed flat. All of the bruises are fairly superficial and are red and blue in color; no yellow or green is present. There are no bruises medial to the linear bruises in the crease of the buttocks. Mrs. Stone first observed the bruise the morning of November 16, 2001. Mrs. Stone did not report the bruise to the Department. Jeffrey generally attended daycare from seven or eight o'clock in the morning until 5:30 or 6:00 in the evening. Jeffrey attended day care on November 16, 2001. Mrs. Stone conceded that the bruise could not have happened at the daycare center because she observed the bruise the morning of November 16, 2001, before Jeffrey attended the center. According to Mrs. Stone, Jeffrey wore a brace on his leg which caught on the crib a couple of days before the incident. This, however, would not explain a fresh bruise as described by Ms. Lycett and supported by Dr. Trump's report. Likewise, the other foster children could not have caused the bruise as they were removed from the home four days prior to the incident in question. While the evidence did not prove that Mrs. Stone directly caused the injury, the evidence did prove that the child suffered harm while in the custody and control of Respondents.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Department of Children and Family Services enter a final order revoking the foster care license of the Stones. DONE AND ENTERED this 16th day of August, 2002, in Tallahassee, Leon County, Florida. BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of August, 2002.
Findings Of Fact Audrey Jones (Respondent) was granted a foster care license by the Department of Health and Rehabilitative Services (Petitioner) in August 1994. Respondent sought to renew her foster care license. By letter dated June 14, 1995, Petitioner notified Respondent that her foster care license would not be renewed because of a proposed confirmed abuse report. On July 6, 1994, Respondent signed an agreement, entitled "Discipline Policy Agreement", agreeing to comply with Petitioner's discipline policy. The Discipline Policy Agreement provides in pertinent part: The following disciplinary practices are FORBIDDEN in the caring for your foster child. Failure to comply may result in an investiga- tion and possible closure of your home. * * * Hitting a child with an object. Slapping or spanking a child, or ANY OTHER physical discipline. On August 23, 1994, as a condition of licensure, Respondent signed an agreement, entitled "Agreement To Provide Substitute Care For Dependent Children", with Petitioner. This agreement provides in pertinent part: As substitute care parent(s) for the Department of Health and Rehabilitative Services, we agree to the following conditions considered essential for the welfare of this dependent child placed in our home: * * * 2. We are fully and directly responsible to the department for the care of the child. * * * We will comply with all requirements for a licensed substitute care home as prescribed by the department. We will immediately report any injuries or illness of a child in our care to the department. * * * 19. We will abide by the department's discipline policy which we received during the MAPP training. In May, 1995, Respondent was the foster parent of B. W., a female child. At that time, B. W. was nine years old and had been in Respondent's care for less than one year. On May 22, 1995, B. W. was examined by a physician of Petitioner's Child Protective Team as a result of an abuse report made against Respondent that same day. The examination revealed multiple linear abrasions, scabbed linear lesions, and bruises on B. W.'s upper thighs and buttocks, with the injured areas being tender. The injuries had been inflicted with a brush-type instrument and had been inflicted within three days prior to the examination. The lesions and bruises could not have been, and were not, self- inflicted. Respondent inflicted the lesions and bruises upon B. W. with a brush. B. W. has been in several foster homes over the years. She admitted that she has told several truths and "stories" about former foster homes. However, in this situation, B. W. is found to have spoken the truth. On May 22, 1995, B. W. informed Petitioner's abuse investigator, the examining physician, and a supervisor at the Mental Health program that she attended that Respondent had punished her with a brush and that the lesions and bruises were a result of that punishment. All of these individuals observed the injuries on May 22, 1995. During the three-day period prior to the report and discovery of the lesions and bruises, B. W. was in the custody and control of Respondent. At no time did Respondent seek medical treatment for B. W.'s injuries. Nor did Respondent notify Petitioner of the injuries. Respondent violated both the Agreement to Provide Substitute Care for Dependent Children and the Discipline Policy Agreement that she had with Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health and Rehabilitative Services deny the renewal of Audrey Jones' foster care license. DONE AND ENTERED this 29th day of March, 1996, in Tallahassee, Leon County, Florida. ERROL H. POWELL, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of March, 1996. APPENDIX The following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact 1. Partially accepted in finding of fact 1. 2. Partially accepted in finding of fact 4. 3. Partially accepted in finding of fact 3. 4. Partially accepted in finding of fact 2. 5. Partially accepted in finding of fact 2. 6. Partially accepted in finding of fact 5. 7. Partially accepted in finding of fact 5. 8. Partially accepted in finding of fact 7. 9. Rejected as being unnecessary. 10. Partially accepted in finding of fact 10. 11. Partially accepted in finding of fact 10. 12. Partially accepted in finding of fact 11. 13. Partially accepted in finding of fact 9. 14. Partially accepted in finding of fact 6. 15. Partially accepted in finding of fact 5. 16. Partially accepted in findings of fact 1 and 9. NOTE - Where a proposed finding has been partially accepted, the remainder has been rejected as being irrelevant, unnecessary, cumulative, not supported by the more credible evidence, argument, or a conclusion of law. COPIES FURNISHED: Colleen Farnsworth, Esquire Department of Health and Rehabilitative Services 401 Northeast Second Avenue Suite N-1014 Miami, Florida 33128 Harry G. Robbins, Esquire Presidential Circle Building 4000 Hollywood boulevard Suite 630 North Hollywood, Florida 33130 Richard Doran General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Sandy Coulter Acting Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue is whether Petitioners' application for relicensing as a foster home should be approved.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In this licensing dispute, Petitioners, Leo and Connie Smith (the Smiths), seek to have their foster care license renewed. In a preliminary decision rendered on October 8, 1999, Respondent, Department of Children and Family Services (Department), denied the request on the ground that Petitioners improperly used corporal punishment on a child under their care, and that the Department "cannot [be] assured that [Petitioners] will not lose control again and use excessive corporal punishment." The underlying facts are relatively brief. Petitioners were first issued a therapeutic foster care license in September 1998. Thereafter, and until their application for renewal was denied, they used the license to care for two therapeutic foster children, a type of foster child that has far more severe emotional problems than a regular foster child. On July 25, 1998, or before the license was issued, Connie Smith (Connie) was babysitting a two-year-old child in her home. When the child "messed in its pants" a second time after being previously warned not to do it again, Connie struck the child with a ruler which left bruises on the child's buttocks. The incident was investigated by the Department and culminated in the issuance of an abuse report on October 9, 1998, which is identified as abuse report number 98-084291. Apparently, that report was not contested, for it remains a confirmed report in the abuse registry. Because the Department's background screening on the Smiths was completed in May 1998, or before the abuse incident occurred, the Department was unaware of the matter when it issued the license in September 1998. The abuse report contains an admission by Connie to the mother of the child that "she had lost her temper with the baby" and struck him. At hearing, however, she denied that she "lost control" and maintained instead that the spanking was simply a form of discipline for the child. Even if Connie's version of events is accepted, the fact remains that the child was struck so hard that he suffered bruises on his buttocks. Through accepted testimony presented at hearing, the Department expressed the concern that if Connie lost control supervising a normal two-year-old child, she would have far more difficulty with older children having severe emotional problems, such as therapeutic foster children. This is a legitimate concern, and Petitioners failed to demonstrate that this concern was not well-founded.
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 Petitioners' request for renewal of their foster care license. DONE AND ENTERED this 21st day of November, 2000, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of November, 2000. COPIES FURNISHED: Virginia A. Daire, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Leo and Connie Smith 12134 County Road 684 Webster, Florida 33597 Ralph J. McMurphy, Esquire Department of Children and Family Services 1601 West Gulf Atlantic Highway Wildwood, Florida 34785-8158
Findings Of Fact The Respondent, Thomas J. McQueen, is licensed in Florida as marriage and family therapist. He has a Ph.D. in psychology but is not licensed as a psychologist. On or about January 30, 1986, while practicing under his license as a marriage and family therapist, the Respondent had his first interview with the complainant in this case, who will be referred to as the client or complainant in this Recommended Order. The client had been referred to him for counseling as a result of the unexpected and unexplained death of her 19 year-old son. Abuse of the Therapy Relationship The client was suffering from major depression, single episode, categorized under 296.20 in the DSM-III manual for the diagnosis of mental and emotional illnesses. She worked part-time at her church, a Roman Catholic church in mid-Pinellas County, and had received consolation, expression of concern and understanding from her priests, coworkers and fellow parishioners there, but she was inconsolable. Worse, she reacted adversely to well- intentioned suggestions that the client interpreted as suggestions that she look for things God had given her to replace her son, such as her new son-in-law or, later, her new grandson. Seeing the severity of the client's grief, her priest referred her to the Respondent for counseling. The Respondent is a former Catholic priest. When he came to Florida in 1979, he introduced himself to the pastor of his parish and to other priests and became active in the Catholic Church in Pinellas County, including volunteer service on the board of directors of Catholic Social Services. He encouraged the church to support marriage and family therapy and make it available through Catholic Social Services. At the time the client first came to see him, he was conducting a private counseling practice out of offices in two area Catholic churches made available for his use free of rent and any overhead charges. The client first saw the Respondent in his office at a local Catholic church in north Pinellas County. The Respondent counseled effectively with the client. Not atypical of what happens in an effective therapist/patient relationship, especially in the earlier stages of therapy, the client thought the world of her therapist, the Respondent. She confided in him and looked to him for help and guidance in what for her was a most distressing time of her life. Using the words of the client herself, a deeply religious person, the Respondent was "a God" to the client. She looked at him as her savior. As she put it in a March, 1987, letter describing what she endured after her son's death: "There had to be a turning point, and since I no longer had the emotional strength to shift gears, there had to be someone else in the driver's seat. My counselor throughout my journey, Dr. Tom McQueen, took over the wheel, although I have no doubt that God was whispering directions to him." During his therapy, the Respondent tried to encourage the client to take a "pro-active" approach to her grief and to her life, in general. And, using theological concepts with which both of them were familiar, he also tried to explain to her that she should reject and discard the idea of "replacing" her deceased son and replace it with the idea of her son's "resurrection." After an initial short period when she found it difficult to function well in her normal daily work and activities, the most severe symptoms of her grief depression subsided, and the client was able to function adequately while therapy continued. Throughout her therapy, the client insisted, contrary to the Respondent's advice, that she see the Respondent only on an "as needed" or "as desired" basis. Her visits to the Respondent for formal counseling averaged a little more than one a month (although they were not regular monthly visits.) She was, and generally continued to be, a strong personality, capable of planning, organizing and implementing plans. She also continued to lead a busy life, as always, and she used this activity as a way of coping with her grief. However, maintaining a busy routine was only a temporary way of coping with her grief. In the eyes of some, it masked her grief depression. But the depression persisted, and she continued to show signs of her depression that could be detected by a trained therapist. Early on in counseling at the Respondent's counseling office at the north Pinellas parish, the client asked whether the Respondent saw clients closer to her residence in mid-Pinellas County. The conversation led to the Respondent's informing her that he had been trying for some time to persuade the Catholic Diocese to open what he considered to be a much needed counseling center in north Pinellas County, but his efforts had been to no avail. Thereafter, the subject came up from time to time during counseling sessions. By late August, 1986, no cause of her son's death had yet been ascertained. Finally, an autopsy report was released, which conflicted with an earlier report, and the client reviewed it. This caused more severe symptoms of her grief depression to recur. She suffered acute pain and hurt again, and she became terribly confused again. She had difficulty sleeping. On or about September 6, 1986, the client and her husband came in to see the Respondent. He did some additional testing, which confirmed that the client was "very depressed." He referred her to a licensed psychiatrist. The client saw the psychiatrist on or about October 9, 1986. He diagnosed the client's condition as "major depressive disorder (unresolved grief response, pathological proportions). He prescribed Ludiomil, an antidepressant, and referred the client back to the Respondent for continued supportive psychotherapy. The client had three or four more formal counseling sessions with the Respondent after the appointment with the psychiatrist--one in October, one in November and one or two in December, 1986. At the last of these sessions, the Respondent let the client know that, on that day, he himself was somewhat upset. He reported that he had just received notice that representatives of the Catholic Diocese were cancelling another meeting he had arranged to again try to persuade them to start a counseling center in north Pinellas County. The client's response was to ask whether the Respondent thought it would help if he could approach the Diocese with a $25,000 donation for use in establishing the center. She explained that she and her husband already had discussed and had decided to establish a charitable foundation in the name of their son, and it was her thought that the foundation could contribute to the financial support of the counseling center the Respondent was trying to persuade the Catholic Diocese to establish. She asked whether any other member of the Board of Directors of Catholic Social Services would be eligible to be director, and the Respondent replied in the negative. She fully concurred with the Respondent's desire that he be the director of the new center. She was very excited about the idea, which the Respondent himself characterized as a "whirlwind idea." The Respondent's first response to the client's offer of financial support was, appropriately, to decline. But his judgment immediately became clouded by the personal benefits he saw that he could derive from it. He quickly came to view the idea as the perfect opportunity to achieve his personal goals. He reconsidered and accepted, on the conditions that he would retain enough independence from diocesan control and that the Diocese, not he, would be responsible for the administrative and financial operations of the center. He wanted to be responsible only for providing counseling at the center, similar to his current arrangements for private counseling. He became very supportive of the idea and even encouraged the client to view the project as a way to "resurrect" her son. Consistent with this idea, on or about January 7, 1987, the anniversary of her son's death, the Respondent sent the client a card bearing the printed words: "I am the Resurrection. If anyone believes in me even though he dies he will live." The Respondent wrote on the card: "My family's prayer for yours today and each day is that the presence of your son will be forever renewed and resurrected in your lives." By the time of the next scheduled therapy session, the Respondent decided to end the client/therapist relationship to enable him to embark on the new "business relationship" between them as cofounders of the planned counseling center. He cancelled the session and instead suggested a walk in the park. He further discussed the client's idea with her and suggested to her that he now thought of her as "something more than just a client." He told her that she no longer needed counseling and that in the future their meetings would focus on the establishment of the center, the "resurrection" of her son. Having been led to believe that she was healed, the client discontinued her medication on or about December 25, 1986. The Respondent enthusiatically embraced and was swept along by the client's "whirlwind idea." The client left the state for the holidays in December, 1986, but by January 14, 1987, the Respondent himself had met with the Chancellor of the Diocese and had prepared a written proposal for submission to the Catholic Diocese. The proposal is authored by the Respondent and refers to the client and her husband as "the prospective donors." It describes the history of the Respondent's efforts to bring to fruition his "dream of establishing a 'Catholic Social Services North', if you will, to provide counseling services as well as programs in spiritual growth and development." The Respondent proposed March 1, 1987, as the target date for opening the new center. He arranged for the client to contact the Diocese to further discuss the project. Meanwhile, both the Respondent and the client began looking for appropriate offices to lease for the project. The client located offices and notified the Diocese. The Diocese recommended that the lease be postponed until the Diocese had completed its review of the proposal and reached a decision. Disappointed at the response, the client and the Respondent agreed that the client would enter into a lease effective on or about February 1, 1987, and would personally pay the $750 deposit and $750 a month, plus tax, rent until the planned center could officially open. It also was agreed that, in the meantime, the Respondent could conduct his private counseling practice in the leased space free of charge. The client personally, instead of the foundation, incurred these expenses because the foundation was restricted to contributions to charitable not-for-profit corporations and could not by law pay the rent for the Respondent's private counseling practice. By February, 1987, the client also prepared a proposal for submission to the Catholic Diocese on behalf of her and the Respondent. The client's proposal made it clear that the Respondent would serve as the Director of counseling center and addressed the Respondent's concerns regarding his independence from the Diocese. The Respondent and the client were disappointed with the diocesan response. At first, it seemed too slow to them. Then, at the end of February or beginning of March, 1987, they began to get indications that the Diocese was not comfortable with the Respondent's role in the proposal and that the Diocese thought the Respondent's projected salary of $50,000 a year was too high. The client sprang to the Respondent's defense. She thought that the Diocese was foolish for not appreciating the Respondent's talents and abilities. She immediately set out to put together information to prove to the Diocese what she thought should have been obvious--that the Respondent's education, background, experience and abilities amply justified the salary he would be getting. The Respondent directed her to information about him, including a resume, articles written about him and by him, and letters of recommendation for her to attach to her March 3, 1987, letter to the Diocese. Soon thereafter, before getting a response from the Diocese, the client and the Respondent became impatient and decided to start the counseling center without church sponsorship. They did, however, decide to ask the church for referrals, and the Diocese agreed that it would make referrals to the new counseling center. That decision having been made, the client approached her attorney and asked him to incorporate the Counseling and Development Center, Inc. (CDC). The not-for-profit corporation was set up with a six-member board of directors. The attorney suggested that two board member be Catholic priests, and they were able to get the agreement of two priests to serve on the board. The Respondent and the client also served on the board, along with a pediatrician friend of the Respondent and a business associate of the client's husband. On or about May 1, 1987, the Respondent closed his private practice, and the CDC opened its doors for business, with the Respondent serving as Director. As Director, in addition to counseling his own patients, he was to implement a marketing plan that included presentations to various church and community groups and was to recruit and supervise counselors and staff. Generally, his former clients became clients of the CDC, and their fees were paid to the CDC. The Respondent received his $50,000 a year salary. The client also was actively involved in the operations of the CDC, serving as its bookkeeper, financial planner and general office manager. Throughout this period of time, the Respondent continued to encourage the client to look at her involvement in the CDC as participation in the "resurrection" of her son. Around Christmas of 1987, the Respondent had a plaque made for hanging in the CDC. It dedicated the CDC to the memory of her son and featured a scripture verse on the Resurrection. He also sent the client a Christmas card that said in part: When we speak of Christmas 'presents,' this plaque does not fall into that category. However, when we speak of Christmas 'presence' we have a new and more meaningful reality. While no remembrance is sufficient to capture the meaning of a person's life, I would like this plaque to hang in the front office of the Counseling and Development Center so that those who pass through our doors will share in the healing that is born of the Resurrection. From May 1, 1987, through April, 1988, the foundation donated $60,000 to the CDC. From May 1 through October, 1988, another $25,000 was contributed. In about April, 1988, the client began to get concerned about the amount of cash contributions the CDC was requiring of the foundation in order to operate. She confronted the Respondent about it, and he responded by letter in part: Our conversation helped me to understand that I haven't made a very successful transition from the sailor of a private canoe to the captain of a much larger vessel! I need your help! . . . In the meantime, I will attempt to keep a better handle on the 'day-to-day' operations of our ministry. . . . Nothing is more meaningful to me tha[n] the continued success of what we have undertaken. If my vision is sometimes blurred and I don't see the way, I'll need you to hand me a pair of glasses! In May, 1988, the client called a dinner meeting with the staff to discuss the CDC's financial problems. It was decided that the pay for the CDC's staff counsellors would have to be reduced to $20 an hour from $25 an hour. The Respondent offered to the complainant that his salary be reduced but she responded that would not be necessary. It was not until October, 1988, that the complainant could bring herself to lay the blame for the CDC's problems on the Respondent. She became convinced that his management style was causing morale problems among the staff. More serious, she became convinced that he was not working hard enough for his salary and for the success of the foundation--her son's "resurrection." She had noticed that he did not seem to be physically present at the CDC very much. Records she was able to analyze indicated to her that, even giving the Respondent credit for a full day of work whenever he saw even just one client, it appeared to the complainant that the Respondent worked only 316 days out of a possible 540 workdays between May, 1987, and October, 1988. She suspected that he was working for himself on the side. In October, 1988, the complainant advised the Board of Directors of the CDC of the problems she then perceived and what she perceived as the Respondent's blame for them. She advised the Board that the foundation would not continue to support the CDC unless certain changes were made, namely that the Respondent be removed as Director and demoted to the role of staff counselor and that she be installed as interim director until the position could be filled. She pushed the Board for almost immediate action. Stunned by the ultimatum and feeling pressured, the other members of the board interviewed the CDC's employees to try to ascertain the true facts and met several times in November, 1988, and proposed a compromise to the Respondent and the complainant. The complainant rejected the compromise out of hand. In early December, 1988, the complainant left the CDC and formed the Counseling Services Center, Inc.(CSC), to compete with the CDC, and on or about December 28, 1988, the CDC board formally voted her off the CDC board of directors. In fact, the Respondent knew, or should have known, that the client was not "healed" in December, 1986, when he agreed to accept the benefits of her proposal to use her son's foundation to establish a counseling center headed by the Respondent. Her grief remained unresolved and led to such emotional pain on her son's birthday, mother's day and Christmas, her son's favorite holiday, that she refused to celebrate those holidays. A de facto client/therapist relationship continued even after formal counseling ceased. As the client herself explained it in a November 18, 1986, card she sent to the Respondent: "I am on my way to the finish line now, but I know there are obstacles and hurdles still ahead of me. I pray that I'll have the strength to get over them, and that you'll be there to help me if I fall." Even if it were appropriate to terminate the client's formal therapy in December, 1986, it is clear that, despite her continuing considerable talents and abilities to make business decisions and implement them, the client was not at that time, or for many months to come, able to deal with the Respondent as an equal in a true arm's length business transaction. When it came to looking at the Respondent, the client saw through rose-tinted glasses. In her eyes, he could do no wrong. The Code of Ethical Principles for Marriage and Family Therapy of the American Association for Marriage and Family Therapy (AAMFT), of which the Respondent is a member, sets out certain ethical standards which constitute minimum standards of performance in professional activities when measured against generally prevailing peer performance. The Code includes the following principles: Marriage and family therapists are cognizant of their potentially influential position with respect to clients, and they avoid exploiting the trust and dependency of such persons. Marriage and family therapists therefore make every effort to avoid dual relationships with clients that could impair their professional judgement or increase the risk of exploitation. Marriage and family therapists do not use their professional relationship with clients to further their own interests. 1.6 Marriage and family therapists assist person in obtaining other therapeutic services if a marriage and family therapist is unable or unwilling, for appropriate reasons, to see a person who has requested professional help. The Respondent violated these ethical standards and, in so doing, did not measure up to minimum standards of performance in professional activities when measured against generally prevailing peer performance. (See Findings 3- 34, above.) He should have counseled his client against acting on a "whirlwind idea" but rather encouraged her to slow down and deliberately evaluate the idea and, if necessary, delay making any decision, to be sure she was not acting irrationally as a result of her grief-induced depression. If she insisted on going forward with the idea, he should have declined to accept the benefits of the directorship. The Respondent also failed to measure up to minimum standards of performance in professional activities when measured against generally prevailing peer performance by discussing his personal goals and frustrations during therapy. (See Findings 8 and 12, above.) Having decided to endorse the complainant's "whirlwind idea" and to accept the directorship, the Respondent also failed to measure up to minimum standards of performance in professional activities, when measured against generally prevailing peer performance, by not referring the client to another therapist for continuing therapy when he terminated formal therapy. Representations Concerning Respondent's Credentials The Respondent, while the holder of a Ph.D. degree in psychology, is not licensed as a psychologist. His only licensure is his Florida license as a marriage and family therapist. The AAMFT Code of Ethical Principles includes among its principles: 6.4 Marriage and family therapists are careful to represent facts truthfully to clients and third party payors regarding services rendered. 7.1 Marriage and family therapists accurately represent their competence, education, training, and experience relevant to their practice of marriage and family therapy. Marriage and family therapists assure that advertisements and publication, whether in directories, announcement cards, newspapers, or on radio or television, are formulated to convey information that is necessary for the public to make an appropriate selection. Marriage and family therapists do not use a name which could mislead the public concerning the identity, responsibility, source, and status of those practicing under that name and do not hold themselves out as being partners or associates of a firm if they are not. 7.6 Marriage and family therapists correct, wherever possible, false, misleading, or inaccurate information and representations made by others concerning the marriage and family therapist's qualifications, services, or products. When the complainant was referred to the Respondent for counseling, the priest who recommended the Respondent gave the complainant the impression that the Respondent was a psychologist. But it was not proven that the Respondent knew what the priest had told the complainant. Nor was it proven that the Respondent himself ever told the complainant that he was a psychologist. The evidence was only that the Respondent informed the complainant in the course of conversation and via written materials that he had obtained a Ph.D. degree in psychology. Also, on one occasion, as part of the start-up of the CDC, the complainant informed the Respondent that she had arranged to have the CDC listed in the telephone book under "Psychologists." Without explicitly explaining why, the Respondent had the complainant change the listing to the heading, "Marriage and Family Therapy." The Respondent's Florida license as a marriage and family therapist hung on the wall of the office in which he counseled the complainant. Also on display in the office was the Respondent's Pinellas County occupational license, which identified him as a marriage and family therapist. Nothing on display in the office referred to the Respondent as a psychologist although his Ph.D. diploma would have indicated that his degree was in psychology. When the complainant came into the CDC offices in March 3, 1987, looking for information to buttress her argument to the Catholic Diocese that the Respondent was well worth his projected $50,000 a year salary, the Respondent directed her to written materials in a binder on a bookshelf in the hall just outside his office. Cf. Finding 20, above. The written materials which the complainant found in the binder and attached to her March 3, 1987, letter to the Diocese included the Respondent's resume, which set forth the Respondent's licensure only as a marriage and family therapist and otherwise accurately reflected the Respondent's education, training and experience. They also included two newspaper articles written about the Respondent in which the Respondent was referred to as a psychologist or was referred to by the title of the position he held with Pinellas County in the early 1980s--psychological consultant. They also included one article written by the Respondent in the same time period in which he referred to himself as a psychologist. There also were letters of reference concerning the Respondent which referred to him as a psychologist. There was no evidence that the Respondent knew what material the complainant had seen in or had selected from the binder on the bookshelf. There also was no evidence whether the Respondent had corrected the information contained in the letters of reference or whether he ever used the letters of reference. The evidence did not prove that the Respondent had reason to know that the complainant thought he was a licensed psychologist. (The evidence indicates that the complainant was more familiar with the term "psychologist" and focused on that designation, not appreciating the significance of the distinction between a licensed psychologist and a licensed marriage and family therapist. Part of the problem seems to arise from the apparently permissible use of the prefix "Dr." by Ph.D.'s in psychology whether or not they are licensed in Florida as psychologists. 1/ ) The evidence did not prove that the Respondent violated the principles of the AAMFT Code of Ethical Principles cited in Finding 40, above. The evidence did not prove that the Respondent failed to measure up to minimum standards of performance in professional activities when measured against generally prevailing peer performance by misrepresenting his credentials to the complainant or by failing to clarify or correct what he knew or should have known to be a misapprehension of his credentials by the complainant. Maintenance of Complainant's Patient Records Principle 2.3 of the AAMFT Code of Ethical Principles provides: Marriage and family therapists store or dispose of client records in ways that maintain confidentiality. When the CDC opened for business on May 1, 1987, the Respondent kept his active and inactive files from his private practice, including the complainant's file, in the CDC offices. He made an effort to keep the complainant's files separate from the active files of the CDC but there were two occasions when his secretary saw the complainant's file on the Respondent's desk. One time, when the secretary was about to put the complainant's file among the CDC files, the Respondent happened to return to his office and told his secretary that the complainant's file would not be kept at the CDC. On or about January 17, 1989, the complainant requested a copy of her records from her private counseling sessions with the Respondent. The Respondent replied by letter dated January 19, 1989: (1) stating that the staff counselors, who resigned effective December 15, 1988, and were hired by the complainant's CSC, removed active and inactive CDC files to the CSC; and (2) suggesting that the complainant's file may have been among them. However, each CDC staff counselor kept his or her client files in a locked filing cabinet to which only the counselor had access. They did not take the complainant's file. Through a February 6, 1989, letter from the Respondent's attorney, the Respondent responded that he had not been able to find the complainant's file. The letter indicated that the complainant's file was stored together with CDC inactive files, to which the complainant and the CDC staff counselors had access. The letter suggests that the complainant's file could have been removed either when the complainant and her representatives removed all her belongings on December 3, 1988, in the Respondent's absence, or when the three staff counselors who left the CDC and were hired by the CSC removed their files approximately two weeks later, also in the Respondent's absence. Yet, at final hearing, the Respondent conceded that it would be inappropriate for him to store the complainant's file in a place where it would be accessible to the CDC staff counselors. In addition, the February 6, 1989, letter states that the Respondent was actively treating private patients, whose records were being maintained in the Respondent's private office at the CDC, which he denied at final hearing. On July 7, 1989, the complainant again demanded the return of her file. By letter dated July 27, 1989, Respondent's attorney replied, again denying that he had the file and suggesting that the complainant herself may have taken it. At hearing, the Respondent testified that he understood the complainant had the keys to all locks at the CDC and therefore had access to her file, which he thought was in a locked drawer in his office. But the testimony of the three CDC staff counselors who left to join the CSC was that the complainant did not have a key to the locked file cabinets where they kept their active client files. It was not clear from the evidence what happened to the complainant's file. It is clear, however, that the Respondent has not been able to locate the complainant's file, was unable to return it or a copy of it on demand, and did not adequately safeguard the file and the confidentiality of its contents. This was a violation of AAMFT Ethical Principle 2.3 and constituted a failure by the Respondent to measure up to minimum standards of performance in professional activities when measured against generally prevailing peer performance. The evidence did not prove that the Respondent failed to measure up to minimum standards of performance in professional activities, when measured against generally prevailing peer performance, by undertaking activities for which he was not qualified by training or experience. First, the evidence shows that the Respondent never undertook to perform financial or general management duties for the CDC. Second, it was not proven by a preponderance of the evidence that he did not or could not perform the duties which he did undertake.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Marriage and Family Therapy enter a final order fining the Respondent $1,000 and suspending his license for one year, to be reinstated at that time subject to the completion of continuing education specified by the Board in the area of professional ethics, if available, and subject to one year of probation. RECOMMENDED this 5th day of November, 1990, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of November, 1990.
