Findings Of Fact In August, 1980, the home of Jacob and Donna Vermeulen was licensed by Petitioner as a pre-school foster home. Under that licensure, the Vermeulens were able to care for children from birth to four years of age. The subject of this proceeding, hereinafter referred to as S.L., was born on May 26, 1976. When S.L. was four years old he and his younger sister were removed from the custody of his natural mother (after he witnessed the homicide by bludgeoning of his father by his mother) because S.L. and his sister had been physically abused by both natural parents. Petitioner placed S.L. and his sister into the Vermeu1en foster home. After S.L. and his sister had been living with the Vermeulens for approximately six months, Petitioner removed them from the Vermeulen home and returned them to the custody of their natural mother. After approximately six months, the two children were again removed from their natural mother since she again physically abused them. Petitioner requested the Vermeulens to again take custody of S.L. and his sister. The Vermeulens were reluctant to do so since both S.L, and his sister were now older than was allowed under the Vermeulens' license, and because S.L. had problems relating with the other foster children living in that home during his first stay there. However, Petitioner's social workers begged the Vermeulens to take the children back since Petitioner was unable to find any other placement for S.L. The Vermeulens agreed to make their home available to S.L. and his sister, and the two children thereafter lived in the Vermeulen home for approximately two and one-half years prior to April 16, 1984. S.L. is a difficult child to care for; he is very emotional, developmentally immature, fearful, and fidgety. He has difficulty sleeping or listening, has a very low self-esteem, and is unable to complete tasks since he becomes emotionally frustrated. Not only is S.L. a clumsy child (most probably due to medication), he also throws himself onto the floor and onto his toys, both as part of his aggressive play behavior and also in conjunction with throwing temper tantrums. S.L. initiates fights in school, on the school bus and at home with the other children in the Vermeulen home to such an extent that fighting somewhere would have been almost a daily occurrence. His excessive demands for attention were often accompanied by negative behavior, such as hitting other children and throwing temper tantrums. On December 21, 1983, S.L. was evaluated by psychiatrist Josephine Perez. Perez diagnosed S.L. as suffering from Attention Deficit Disorder with Hyperactivity. Perez determined that the high dosages of anti-psychoic medication that S.L. had been taking were inappropriate, and she prescribed different medication for him. Perez recalls that during S.L.'s initial evaluation in December she noticed that his legs and arms were filled with bruises. S.L. began treating weekly with Perez from January 16, 1984, until April 16, 1984. On each visit at least one of the Vermeulens was present, and each visit contained a seasion between Perez and the foster parent discussing the child's progress and training the foster parent in the use of behavioral modification techniques. During those several months S.L. appeared at Perez's office on one occasion with a black eye and on another occasion with a bruising above his eye. One injury resulted from a fall in the bath tub, and another resulted from a fall out of bed; both falls were probably attributable to changes Perez made in S.L.'s medication. The Vermeulens discussed both incidents with Perez since they were concerned that S.L,'s medication was still not in the proper dosage. The Vermeulens testified that sometimes when S.L.'s medication was changed, he was unable to control even his arms and was unable to sit still long enough to eat. In January, 1984, when S.L. began treating with Dr. Perez there were six children living in the Vermeulen home: four foster children, one adopted child, and one natural child. The Vermeulens and Dr. Perez discussed the number of children living in the Vermeulen home, which prohibited giving S.L. the excessive amount of time required by him to satisfy his need for attention. Perez told the Vermeulens that in her professional opinion S.L. should be in a home with no more than one other child. In turn, the Vermeulens told Perez that they had been requesting Petitioner to remove S.L. from their home out of their concern (1) for S.L. since he needed so much more attention than was available to him and (2) for the other children not only because S.L. would kick and hit them but also because the Vermeulens had discovered S.L. in his sister's bedroom standing over her with a knife in his hand on two occasions. Although Perez agreed that S.L. should be placed a different foster setting, she did nothing to assist in obtaining a different placement and did not discuss with any employee of the Petitioner ("HRS") her recommendation and the Vermeulens' desire that S.L. be placed in a setting, preferably, where he was the only child. The Vermeulens, however, continued to request of HRS employees, including the visiting social workers and medical personnel, that S.L. be removed from their home, with visitation rights being given to the Vermeulens if possible. During this time period the Vermeulens determined that they wished to adopt Michelle, a foster child in their care. On Friday, April 13, 1984, an HRS employee went to the Vermeulen home to discuss that petition for adoption and to advise the Vermeulens that HRS would not allow them to adopt Michelle. Mr. and Mrs. Vermeulen S.L., and the rest of the children living in the home were present during that discussion. The Vermeulens were advised that they would not be permitted to adopt Michelle so long as S.L. was living in their home since he is a "therapeutic foster child" and Petitioner's rules would prohibit the adoption while a "therapeutic child" was in the home. Mrs. Vermeulen was unable to understand Petitioner's position: its refusal to remove S.L. from her home after repeated requests and its refusal to allow her to adopt Michelle for the reason that S.L. was in her home. Mrs. Vermeulen became upset, and S.L. told her and Petitioner's employee to put him in a foster home indicating he would rather be sent away than prevent Michelle from being adopted by the Vermeulens. Since the HRS employee was having a difficult time discussing HRS's position, she left the Vermeulen home. On Friday, April 13, 1984, or on Monday, April 16, 1984, S.L. became involved in a fight on the school bus on the way home from school. The bus driver told Mrs. Vermeulen about the fight. On Monday April 16, 1984, Mrs. Vermeulen took S.L. to his weekly therapy session with Dr. Perez. During that session, S.L. indicated to Perez that he had been bad and had been "paddled" on the legs. He would give her no details, but Perez believed it was Donna Vermeulen who paddled S.L. Rather than discuss it with Mrs. Vermeulen, Perez acted as though nothing had been said. Further, although a medical doctor, she did not examine S.L. Instead, Perez discussed with Mrs. Vermeulen behavioral modification techniques to be utilized with S.L. and sent them home. She then telephoned HRS, and a child abuse report was completed. On April 18, 1984, an HRS employee went to S.L.'s school, removed the child from his class, and took the child to be examined by the Child Protection Team. S.L. was first examined by the nurse. When S.L. was unable to explain to the nurse from where each mark on his body originated (or refused to), she interrogated him with questions such as "Did your mommy hit you?" The nurse made notations on a chart indicating numerous marks or bruises on S.L.'s body. However, an HRS employee saw S.L. disrobed when he was being examined by the doctor on the team and saw only two marks on his lower back. Other HRS employees went to the Vermeulen home and removed all the children. No one discussed the incident or accusation with either Mr. or Mrs. Vermeulen until the following day. Until he was removed from her class on April 18, 1984, S.L. was taught by Debbie Froug an Exceptional Education teacher for emotionally disturbed children. Although Froug describes S.L. as a basically honest child, she testified that he sometimes gets very confused. A careful review of the videotaped testimony of S.L. and of the conflicting testimony of the witnesses in this case indicates that Froug's latter description is probably an understatement. No witness in this case heard the same explanation (or accusation) as any other witness. S.L's videotaped testimony illustrates why: there is no statement made by S.L. that is not contradicted by him a few seconds later. For example the videotaped deposition contains on page 27 the following: O. Did you ever have a black eye? A. No. O. Didn't you talk to Dr. Perez about having a black eye once? A. Yes, but I didn't. How did you get the black eye? One of the kids on the bus. Things stated in the affirmative by S.L. in his deposition are also stated in the negative in that same deposition. Further, it is sometimes impossible to ascertain if S.L. is describing being hit by his real father, by his real mother, or by his foster mother. Although no accusation appears to ever have been made, including in the Administrative Complaint, that Jacob Vermeulen ever struck S.L., by the time of S.L.'s deposition eight months after the alleged incident when S.L. was asked if Jacob ever hit him, that question was answered in the affirmative. In short, the evidence is clear that S.L. had some bruises or marks on his body on April 18, 1984; that those bruises or marks were both received accidentally and intentionally inflicted, and that the bruises or marks on S.L.'s body were received as a result of S.L. falling from being uncoordinated or overmedicated, from S.L. flinging himself onto the floor or onto or against objects, and from being hit or kicked by other children with whom S.L. engaged in almost-daily physical combat. Donna and Jacob Vermeulen used only approved behavior modification techniques with S.L. and did not hit S.L. with or without any object, spank S.L., or otherwise inflict physical abuse upon him. Although the Vermeulens' license as a foster home was in effect at all times material hereto, it has lapsed. A foster home license is not automatically renewed but rather requires an annual licensing study. Other than "the incident" charged herein the Vermeulens have received no prior complaints from HRS.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is REC0MENDED that a Final Order be entered dismissing with prejudice the Administrative Complaint filed herein and directing that any licensure study performed regarding the renewal or extension of Respondents' license be made omitting therefrom consideration of any of the matters set forth herein. DONE and RECOMMENDED this 19th day of July, 1985 at Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of July,1985. COPIES FURNISHED: Leonard Helfand, Esquire Department of Health and Rehabilitative Services 401 N.W. 2nd Avenue, Suite 1070 Miami, Florida 33128 Thomas J. Walsh, Esquire 590 English Avenue Homestead, Florida 33030 David Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
The Issue Whether Respondents should be granted a family foster home license.
Findings Of Fact Petitioners, Alfonso and Lynda Zapata, applied to be licensed as a family foster home care with the Department through the Devereux Foundation. The Devereux Foundation maintains a network of foster homes to serve parents who need to temporarily place their children in foster care (private placements) and dependent children in the custody of the Department (public placements). Previously, Petitioners had been licensed as a family foster care home with the Department through Florida Baptist Children's Home (Florida Baptist). Like the Devereux Foundation, Florida Baptist maintains a network of foster homes to serve parents who need to temporarily place their children in foster care and dependent children in the custody of the Department. Petitioners had withdrawn form the relationship with Florida Baptist after a disagreement with Florida Baptist personnel over the removal of a child from their home and reunification of that child with her mother. In 2001, about half of the children placed in Florida Baptist's homes were placed by the Department in connection with cases of child abuse, or abandonment, while the other half were private placements by families whose circumstances necessitated that their children temporarily reside elsewhere. In July 2001, Petitioners had two foster children living in their home. One of these children, T.D., also known as J., had been placed in the Petitioner's home by the Department. The other, C.R., a three-month-old boy, had been privately placed in the home by Florida Baptist at the request of the child's mother, E.R., who was single. E.R. had placed her child in Florida Baptist care because she had enlisted in the United States Army and was undergoing basic training out of state. E.R. had enlisted in order to provide her family a better life. It was initially anticipated that E.R. would be gone six months, but due to injuries sustained during basic training, she was actually gone for eight or nine months. There was no evidence of abuse, neglect or abandonment on E.R.'s part. During C.R.'s stay, Petitioners developed a negative impression of E.R. They did not think that E.R. called or wrote frequently enough. Petitioners had commented to Florida Baptist staff that E.R. was an unfit mother, that Petitioners provided C.R. with a better home than E.R. could, that E.R. did not love C.R., and that Petitioners could love C.R. more than E.R. could. Petitioners' opinion was based on their belief that no really good mother would take a job which required her to be away from her child for extended periods and a belief that C.R.'s grandmother was physically abusive towards C.R. Unfortunately, Petitioners let their beliefs about appropriate parenting interfere in their duties as foster parents to aid in reunification of a child with that child's legal parents. Florida Baptist staff also believed that Petitioners had become too attached to C.R., which caused them to attempt to undermine the Department's later attempts to reunify mother and child at the planned time E.R. would return from basic training and be able to provide a home to C.R. In late July 2001, Florida Baptist staff also became concerned about other behavior exhibited by Petitioners involving confidentiality issues and concerned that the Department had removed T.D. (aka "J.") from Petitioners' home. The behavior concerning confidentiality arose because Mrs. Zapata had discussed the fitness of E.R. to be C.R.'s custodial parent with a Department employee. C.R. was not a Department placement. However, it should be noted that the discussion was with a Department employee involved in the fostering program. Such an employee could reasonably be viewed as a person to report any suspected abuse or neglect to. In this instance, the conversation did not involve a report of abuse or neglect, but concerned Petitioners' belief that E.R. was not a good mother. On the other hand, the evidence was unclear whether the same confidentiality requirements regarding public placements by the Department appertain to private placements by the parents. The incident does cast doubt on Petitioners' awareness and desire to comply with privacy considerations should they be licensed by the Department. During the month of July 2001, T.D., also known as "J.", lived in Petitioner's home. T.D. was a little less than a year old at the time and had been placed in Petitioner's home by the Department because of ongoing juvenile dependency proceedings. On July 31 or August 1, 2001, the Department counselor, Wendy Cheney, picked T.D. up at Petitioner's home to take him to a doctor's appointment. Ms. Cheney noticed that there were crumbs and dirt in the car seat in which Petitioners had placed T.D. Ms. Cheney also noticed that T.D.'s clothes and diaper bag had a strong odor of spoiled milk. A crust also appeared on the nipple of the baby bottle and the eye medicine bottle Mrs. Zapata gave her to take with T.D. to the physician's appointment. During the preceding month, Ms. Cheney had visited Petitioners' home on at least a weekly basis to monitor T.D.'s situation. On many of these occasions, Ms. Cheney also observed that T.D.'s clothes had the same sour milk smell she experienced during the doctor's appointment. She also noticed during these visits that the nipples of T.D.'s baby bottles were not properly covered. On one occasion, Ms. Cheney saw T.D. drop his pacifier and then observed Mrs. Zapata pick it up and replace it in T.D.'s mouth without washing it off. This is of particular concern, as Petitioners had a long-haired dog whose hair was apparent on the floor of Petitioners' home. The Department removed T.D. from Petitioners' home because of these observations. Again, these observations cast serious doubt on the quality of hygienic care provided by Petitioners to foster children. There was no evidence offered to contradict the apparent lack of good hygienic care provided to T.D. However, there was also no evidence that Petitioners' care of T.D. constituted neglect or abuse of T.D., since a finding of neglect or abuse requires demonstration of harm or significantly dangerous conditions. Because of these concerns, Florida Baptist staff agreed that C.R. should be removed from Petitioners' home at least until these issues sorted themselves out. On August 1, 2001, Florida Baptist social worker Sue Kiser telephoned Mr. Zapata and scheduled an appointment for 4:30 p.m., on August 2, 2001, to discuss the reunification of C.R. with E.R. Later that day, Florida Baptist staff decided that since E.R. had recently returned from basic training, the optimum way of accomplishing reunification was to have E.R. meet Ms. Kiser and C.R. at a previously scheduled medical appointment on August 2, 2001, following which C.R. and E.R. would stay together at another foster home. Florida Baptist social worker, Jackie Barksdale, communicated this plan by telephone to Mr. Zapata on August 1, 2001. Mr. Zapata became angry and stated that he refused to allow C.R. to leave his home and go to visit with E.R. He accused Ms. Barksdale of "screwing with" C.R.'s life and committing "child abuse." He promised that "heads would roll" and disparaged E.R.'s family. Ms. Zapata then got on the telephone. She also accused Ms. Barksdale of child abuse and threatened to call the abuse hotline on Florida Baptist. Since no abuse reports were made by Petitioners, these threats were made as a bluff in an attempt to coerce Florida Baptist to leave C.R. with Petitioners. Given this conduct, the staff of Florida Baptist felt they had little choice but to remove C.R. from Petitioner's home. C.R. was removed from Petitioners' home on August 2, 2001. C.R. stayed in the other foster home without incident for about five weeks. C.R. and E.R. were then reunited, and continue to live together as a family. No reports of any problems between C.R. and E.R. have been received since that time. These facts clearly demonstrate Petitioners' unwillingness to cooperate in reunification plans for a child and mother. Petitioners permitted their low opinion regarding C.R.'s mother to interfere with their duty as foster parents. There was no evidence that Petitioners' attitude regarding the parents of foster children would not cause future interference in reunification efforts should their application for licensure be granted. An abused child, V.V., was placed in shelter care with Petitioners. V.V. had sustained a broken arm from abuse she had suffered. She stayed less than three days with Petitioners because her crying kept them up at night and interfered with Mrs. Zapata's home schooling of her biological children. Petitioners acted appropriately in requesting the removal of the child when it became apparent that the placement could not work out and does not demonstrate a lack of qualification for licensure. Finally, a pregnant teenage girl who wished to place her child with Florida Baptist wanted to see the home her child was to live in. Florida Baptist arranged for the girl to look at Petitioners' home. After the visit, Petitioners asked Florida Baptist never to ask them to submit to such an inspection, as they felt they were under some heightened level of scrutiny. Florida Baptist staff explained that parents frequently made this request, and Petitioners repeated that they did not wish to undergo it again. Petitioners request is troubling since one of the duties of the foster parent is to work with the biological parent of a foster child. Again, Petitioners' negative attitudes toward the parents of foster children demonstrate that Petitioners' application for licensure should be denied.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services enter a final order denying the application for a foster care license submitted by Petitioners Alfonso and Lynda Zapata. DONE AND ENTERED this 15th day of April, 2003, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 March, 2003. COPIES FURNISHED: John R. Perry, Esquire Department of Children and Family Services 2639 North Monroe Street, Room 252-A Tallahassee, Florida 32399-2949 Alfonso Zapata Lynda Zapata 1947 Treeline Drive Tallahassee, Florida 32303 Paul F. Flounlacker, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
The Issue Whether Respondent's license to operate a foster home for dependent children should be suspended or revoked for lack of cooperation, and violation of the Petitioner's discipline policy, and licensing standards as outlined in the Administrative Complaint.
Findings Of Fact Respondent is an elderly woman who has operated a foster home since October 1989, at 7018 Ironwood Drive, Orlando, Orange County, Florida. Respondent applied for and was granted a foster home license in October, 1989. Foster home licenses are valid for one year and must be renewed annually. Respondent has annually renewed her license and presently holds license number 1093-11, issued October 18, 1993. In a licensing visit on April 6, 1990 Respondent admitted that she had been using some physical discipline with the children. She stated that she had been tapping the children's hands and had threatened one of the kids with a comb. Respondent was counselled by the Petitioner's licensing representative in regard to the agency's disciplinary guidelines. As a follow-up to the counseling session, a letter was sent to Respondent, dated April 6, 1990, by Licensing Representative Barbara Wavell, which advised Respondent that physically disciplining a foster child in her home was a violation of HRS policy. Respondent received the letter, and although she now believes that it contains misstatements of facts, she did not dispute its contents at the time. Respondent was made aware of the discipline policy of HRS on various occasions and during the required foster parent training, and agreed to abide by it. On April 10, 1992, Respondent expressed to Ms. Wavell that she believed "schools should be allowed to spank" and that "children need discipline and there is nothing wrong with appropriate spanking". In late 1993, Respondent hit at least one foster child who was placed in her home, because the child wet the bed. During 1993 and early 1994, Respondent allowed older foster children to discipline younger foster children with corporal punishment. On occasion, Respondent has restricted children from having access to their family members. Respondent has made derogatory remarks about some of the foster children's biological family members while in the presence of the foster children. Respondent had problems working with some of the children's caseworkers, most notably Jodi Peterson, on various occasions. Respondent expressed her concern that the caseworker visited her home too much, and she preferred that Ms. Peterson not have much contact with her foster children. Respondent felt that she should be included in the conversations between the children and their foster care counselors and would get upset that she was not included in these discussions. Respondent did not recognize the need for the children to have privacy and that it impinged on their right to have a proper relationship with their counselors. Respondent had on-going communications problems with the caseworkers. Respondent was specifically instructed concerning monetary allowances for the children, and the fact that the money given to Respondent was to be used for the children for clothing and incidentals. Respondent had difficulty accepting the fact that the children were entitled to monetary allowances to be used for clothing and incidentals. Respondent refused to allow the foster children placed in her home to participate in school activities, she refused to give them their allowance money to pay for school field trips. Respondent did not allow the foster children to have friends visit or to go places for fun. She encouraged them to stay home and watch television in their free time. Respondent on occasion made derogatory marks to some of the foster children placed in her home. Respondent did not show appropriate concern for the safety of a four- year-old foster child who was sharing a bedroom with two twelve-year-old foster children. Respondent was aware that they were hitting her, however, Respondent did not remove the child from that bedroom, although she had three empty bedrooms in the home. Although many visits have been made to the Respondent's home in an attempt to work with her to assist her in bringing the quality of care in her home up to an acceptable level, Respondent has failed to comply. On April 5, 1994, Petitioner's representative visited the Respondent to discuss the reasons that the Petitioner would be seeking a revocation of her license to operate a foster home.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby RECOMMENDED that a final order be entered revoking Respondent's license to operate a foster home. DONE and ENTERED this 18th day of May, 1995, in Tallahassee, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of May, 1995. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties. Proposed findings of fact submitted by Petitioner. Accepted in substance: paragraphs 1 (in part), 2, 4 (in part), 7 (in part), 8 (in part), 10 (in part), 11 (in part), 13 (in part), 14, 15, 16 (in part), 18, 20, 21, 22, 25, 26, 28 (in part), 29 (in part), 30 (in part), 31, 33, 34. Rejected as not supported by clear and convincing evidence: 1 (in part), 10 (in part), 19, 24. Rejected as subsumed, irrelevant or immaterial: paragraphs 3, 6 (in part), 7 (in part), 8 (in part), 9, 11 (in part), 12, 13 (in part), 16 (in part), 17, 23, 27, 28 (in part), 29 (in part), 30 (in part), 32. Rejected as a conclusion of law: paragraph 5 Proposed findings of fact submitted by Respondent. Respondent did not submit proposed findings of fact. COPIES FURNISHED: Laurie A. Lashomb, Esquire Department of Health and Rehabilitative Services District 7 Legal Office 400 W. Robinson Street, Suite S-827 Orlando, Florida 32801 Jane Carey, Esquire 905 W. Colonial Drive Orlando, Florida 32801 Robert L. Powell Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Bouelvard Tallahassee, Florida 32399-0700 Kim Tucker, Esquire Department of Health and Rehabilitative Services 1323 Winewood Bouelvard Tallahassee, Florida 32399-0700
The Issue The issue to be decided in this case is whether the Petitioner's, Clemintine Lyons, foster home relicensure application should be approved.
Findings Of Fact Clemintine Lyons was first licensed as a foster home in 1988. The licensing staff had several concerns at that time. These concerns included the fact that Ms. Lyons had no prior parenting experience and was taking medication for depression. However, those concerns were addressed and Ms. Lyons was licensed. During the initial licensing period, the Department had difficulty with Ms. Lyons regarding her willingness to work cooperatively with the Department regarding the children in her care and to contact the Department before she made major decisions regarding the children in her care, such as parental visitation. For example, against the wishes of HRS and as a form of punishment for Dorinda, Ms. Lyons kept Dorinda from attending an HRS picnic for prospective adoptees to meet adoptive parents. The HRS staff was concerned about this incident because they were trying to arrange an adoption for Dorinda and the picnic was an important step in that process. Ms. Lyons was also unhappy about HRS counselors trying to have private conversations with Dorinda. Further, on one occasion, Ms. Lyons left the HRS district where she and Dorinda lived to take Dorinda to Dorinda's mother's home in another district to retrieve some clothing given to Dorinda by Ms. Lyons which had been left at the mother's home. Ms. Lyons made the trip because Dorinda was short of clothing. Ms. Lyons took Dorinda to her mother's home without notifying any HRS counselors. When Ms. Lyons was ready to leave, Dorinda refused to get in the car, so Ms. Lyons called the police to assist her in taking Dorinda back to her house. The incident was of concern because Ms. Lyons unilateral action could have potentially placed Dorinda in a dangerous situation, given the fact that the abusive parent was still in the home. In short, both incidents involving Dorinda Small demonstrated very poor judgment on the part of Ms. Lyons regarding the care and protection of a child in her care. Department personnel also testified about another incident which occurred during initial licensure of Ms. Lyons regarding two brothers, a six- year old and an eight-year old, she had just received as foster children in her home. The same day that they were brought to the home, they called a taxi while Ms. Lyons was taking a nap and had themselves driven to their aunt and uncle's home. However, the evidence regarding the elopement of these two boys was very vague and cannot be used to infer a lack of ability to care for foster children on the part of Ms. Lyons, especially since foster children come to foster care with a lot of problems including disciplinary and emotional problems. Additionally, in 1989, Ms. Lyons applied to the Department to become an adoptive parent. While going through the training and background checks, the Department, for the first time, discovered an incident involving a foster child who had been placed in Ms. Lyons' home. Clara Mitchell, a neighbor and friend of Ms. Lyons, informed the Department that she had invited Ms. Lyons and Dorinda Small, a foster child living in Ms. Lyons' home, to her home for Thanksgiving. Before eating, Ms. Lyons fixed a plate of food for Dorinda. When Dorinda noticed that tomatoes had been placed on her plate, she told Ms. Lyons that she did not like them and would not eat them although she had eaten tomatoes before. Ms. Lyons became upset and hit Dorinda across the face and told her to go home. Dorinda left Ms. Mitchell's home, but had to wait outside for Ms. Lyons because Ms. Lyons' door was locked. Ms. Lyons stayed at Mrs. Mitchell's home for about 45 minutes to an hour before going back home and letting Dorinda come inside. Once the Department learned of this incident, the Department made it very clear to Ms. Lyons that the Department's policy prohibited the use of any corporal punishment on a foster child. Ms. Lyons admitted she was aware of this policy and that she understood she was not to use corporal punishment on a foster child again. However, despite the problems with Dorinda Small and the two boys, Ms. Lyons was relicensed on the recommendation of a licensed counselor who felt that because of the desperate need for foster parents, Ms. Lyons with more training and closer supervision, would learn to grow into the role of a foster parent. Towards that end, Ms. Lyons voluntarily agreed to go through additional training known as the Model Approach to Partnerships and Parenting. The model approach program was a thirty-hour training seminar. One of the topics specifically addressed was role identification, specifically the role of a foster parent in relation to HRS, the foster child and the biological family. This training was in addition to the training that Ms. Lyons went through before her initial licensure. In addition, Ms. Lyons was sent information on several different occasions which outlined Ms. Lyons' duties and roles in interacting with HRS, the foster child and the biological family. One of the primary duties of the foster parent is to provide a caring environment for the foster child as well as consult with either HRS or the biological parent before making any major decisions regarding the foster children. It quickly became apparent that the additional training had not improved Ms. Lyons' ability as a foster parent. From July 17 through August 28, 1991, three foster children were placed in Ms. Lyons' home. The children's mother, Robin Williams, had requested foster care assistance for her six children, while Ms. Williams went through voluntary drug rehabilitation. The three oldest, Rasheen, age ten, Shykimma, age eight, and Raheem, age seven, were placed with Ms. Lyons The voluntary aspects of Ms. Williams' decision meant that she was under no court restrictions as to visitation or telephone contact and could remove her children at any time from foster care. Problems with the foster arrangement arose almost immediately. The protective services worker for the Williams', Kathy Perkins Guy, began receiving complaints about Ms. Lyons from Ms. Williams, the Williams children and counselors working with Ms. Williams in her drug treatment. One complaint by the Williams family against Ms. Lyons was that she was not permitting visitation as often as the Williams and HRS felt should be permitted. However, after complaints by Ms. Williams, the Williams' were satisfied with the frequency of visitation. On the other hand, HRS tried to show continued lack of cooperation by Ms. Lyons when Kathy Perkins Guy, the Williams' case worker, tried to arrange visitation on one particular Saturday, but Ms. Lyons told her that she had too many errands to run and it was not convenient. The inconvenience was legitimate because Ms. Lyons sister had died and she was taking care of the funeral arrangements. However, Ms. Lyons never communicated these facts to the HRS caseworker. It is important to note that Ms. Guy did not require Ms. Lyons to facilitate visitation in this instance. Ms. Guy only asked if Ms. Lyons would. Such "asking" by HRS leaves the clear impression that the licensee may decline the request without adverse impact on that person's foster license or future licensure. The incident does demonstrate poor communication by both HRS and Ms. Lyons. Additionally, Ms. Lyons also did not make arrangements for the Williams children to call their mother on a daily basis, but restricted them to one phone call two times a week. Ms. Williams deposition testimony indicated that the frequency of telephone calls was sufficient. Again, Ms. Guy had requested more frequent telephone contact. Ms. Lyons declined because getting through to the mother at the addiction center was difficult to arrange because of the center's restrictions on the mother. Again, HRS only asked for more frequent telephone contact. HRS did not require it. The clear impression to the licensee was that she could decline the request. Ms. Williams also complained that Ms. Lyons had cut her daughter Shykimma's hair without first consulting her. Such consultation with the parent is normally required by the Department. The children complained that they were not permitted to wear underwear while they slept at night and were not being allowed to sleep on pillows or use blankets. When questioned, Ms. Lyons stated that the children were placed in her home with very few clothes, and that she did not want to have to wash clothes every day. However, a foster parent is instructed to have spare clothing on hand or to be prepared to supply spare clothing. The Williams' felt they had adequate clothing but that their clothes often smelled bad the second day. As to the lack of pillows and blankets, she said that the kids did not need blankets because it was summer and the children did have sheets. She also said she did not want the children messing up her pillow shams but that they had other pillows to sleep with. The Williams' depositions demonstrated they had other pillows which they could use. The evidence also demonstrated that the children were dressed appropriately for bed since they slept in pajamas. In addition, Ms. Lyons made the children recite Bible verses as a punishment even though they were Muslim. On one occasion, Ms. Lyons had Rasheen recite a verse to Ms. Guy, which he interpreted to Ms. Guy to mean that he had to obey Ms. Lyons. Again the evidence regarding these incidents was vague and seemed to be engendered more by the Williams children's dislike of Ms. Lyons and anything she did, as well as a biological mother who was frantic over her children. Additionally, the evidence regarding the Bible verses was equivocal as to the appropriateness of such an action given the historical nature of the Muslim and Christian religions' roots in the Old Testament. Ms. Lyons also brought the children to work with her. At that time she was employed cleaning offices after hours, and she put the children to work cleaning toilets, sinks and vacuuming the floor. However, there was no convincing evidence that these activities were inappropriate in any way. On the other hand, Ms. Lyons called Rasheen "stupid." One of these name-callings escalated into an argument with Rasheen, which Ms. Lyons ended by calling a policeman friend of hers to talk to him about showing respect. Ms. Lyons did not intend this name to be abusive, but it was readily apparent that the children took the names as derogatory. The use of such references demonstrates poor judgment in caring for foster children. Ms. Lyons also had punished Shykimma for bedwetting by making her stay in her room for the rest of the day, which violates the disciplinary code for foster parents. Such punishment is a clear violation of HRS's disciplinary code for foster parents. Finally, Ms. Lyons spanked Rasheen with a flip-flop shoe for spilling rice on the floor. Again Ms. Lyons knew such discipline violated the HRS disciplinary code for foster parents. Additionally, Ms. Lyons had been warned earlier about using corporal punishment on a foster child when HRS had learned about Ms. Lyons slapping Dorinda Small. The Williams children were removed from Ms. Lyons home in August 1991. At that time, Sue Brown, supervisor of the foster care licensing unit went to Ms. Lyons' home to discuss with her the problems with the Williams' placement. During the discussion, Ms. Lyons admitted to punishing Shykimma for wetting the bed by making her stay in her room for 35 minutes. Ms. Brown pointed out that children are not to be punished for bedwetting problems, but Ms. Lyons had no response. Ms. Brown spoke to the Williams children after meeting with Ms. Lyons, and they expressed near hatred for Ms. Lyons. They said she was very demanding and that they never wanted to go back there. In this case, it is fairly apparent that HRS is tired of trying to work with Ms. Lyons as a foster parent and that in its attempt not to relicense her the Department listed every perceived "affront" of Ms. Lyons towards HRS. Most of these complaints were spurious and could not form the basis for an adverse licensure decision. However, HRS did succeed in demonstrating that Ms. Lyons committed at least three willful violations of the rules governing foster care parents. Those violations were punishment for bedwetting, name calling and two incidents of administering corporal punishment. Moreover, because these violations were willful and in disregard of the disciplinary rules of HRS of which Ms. Lyons had knowledge, Ms. Lyons is not qualified for licensure.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law it is therefore RECOMMENDED: that the Department deny Petitioner's application for relicensure as a foster home. DONE and ORDERED this 28th day of October, 1994, in Tallahassee, Florida. DIANNE CLEAVINGER 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 28th day of October, 1994. APPENDIX 93-5975 The facts contained in paragraphs 1, 4, 8 and 22, of Petitioner's Findings of Fact are adopted in substance, insofar as material. The facts contained in paragraphs 2, 3, 5, 6, 7, 10, 11, 12, 13, 15, 16, 17, 18, 19, 20 and 21 of Petitioner's Proposed Findings of Fact are subordinate. The facts contained in paragraphs 9 and 14 of Petitioner's Proposed Findings of Fact were not shown by the evidence. The facts contained in paragraphs 1, 2, 5, 6, 7, 9 and 10 of Respondent's Proposed Findings of Fact are adopted in substance, in so far as material. The facts contained in paragraphs 3, 4, 8 and 11 of Respondent's Proposed Findings of Fact are subordinate. COPIES FURNISHED: Ann Corya Curvin, Esquire Assistant District Legal Counsel Department of Health and Rehabilitative Services 160 Governmental Center Pensacola, Florida 32501 Fredrick Gant, Esquire Allbritton & Gant 322 West Cervantes Street Pensacola, Florida 32501 Robert L. Powell, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, Florida 32399-0700 Kim Tucker General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, Florida 32399-0700
The Issue The issue is whether Respondent is guilty of acts and omissions to justify the revocation of his license to operate a family foster home, pursuant to Section 409.175(8), Florida Statutes.
Findings Of Fact Petitioner licensed Respondent to operate a family foster home from June 22, 2000, until May 15, 2001, at which time Petitioner revoked Respondent's license. The only foster children placed with Petitioner were Ju. K. (Ju.) and J. K. (J.), who are brothers. During the majority of the period in question, Ju. was 16 years old and J. was 17 years old. The boys were adopted at infancy. However, their adoptive mother died when they were young. The adoptive father remarried, but died a few years later, in January 1999. The stepmother never adopted the children, and, shortly after the death of their adoptive father, she turned over the two children to foster care. Respondent had been a friend of the stepmother since the mid-1980s and, through her, had met the adoptive father. Respondent became close with the couple and their children, whom he often visited on holidays. Learning that at least one of the boys had had problems in foster care, Respondent decided to qualify to become their foster father. At the time, Respondent was 40 years old and single and had not raised any other children. However, Respondent took the training courses required for licensing as a foster parent. After Respondent obtained his foster parent license, Project Teamwork for Kids, which is the private entity in Brevard County that recruits, trains, and licenses foster parents and places foster children with these parents, placed Ju. and J. with Respondent. J. began to live with Respondent in January 2000, and Ju. joined him in June 2000. During the summer of 2000, relations among Respondent, J., and Ju. were good. They took vacations and settled into their new lives during a period relatively free of stressful demands. Respondent asked Project Teamwork 4 Kids representatives not to start any family therapy during the summer and, once school started, asked that they again defer the initiation of such services. Respondent was aware that Ju. had been diagnosed with dissociative personality disorder, but believed that a normal home life would ameliorate this condition. During the summer, Respondent was concerned with the high school to which Ju. had been assigned for ninth grade. Respondent convinced school officials to reassign Ju. to a different high school, but school officials warned Respondent that, due to the reassignment, they would not tolerate disruptive behavior from Ju. Respondent was satisfied with J.'s assignment for tenth grade because it was the same school from which he had earlier dropped out. At the start of the school year, Respondent required weekly progress reports from J.'s teachers. However, as J.'s grades improved, Respondent dropped this requirement. During the period covered by this case, Respondent's relationship with J. was better than Respondent's relationship with Ju. Respondent and J. had a major disagreement arise at the end of October when J. returned home drunk from a homecoming celebration. A day or two later, after giving the matter considerable thought, Respondent discussed the matter with J. and imposed the punishment that Respondent would not provide his written consent for J. to obtain his driving learner's permit for six months, although Respondent would reconsider at three months. When J. learned of his punishment, he became irate and telephoned his case manager with Project Teamwork 4 Kids, Karen McCalla. He demanded that she remove him from Respondent's home. Ms. McCalla visited the home and spoke with J. alone for several hours, then Respondent, and then J. again alone. This home visit provides an early, but typical, example of the difference in perspectives of Respondent and Petitioner's witnesses. According to Respondent, Ms. McCalla arrived at the home, spoke with J. alone for several hours, spoke with Respondent, and then spoke with J. alone again. She then announced that Respondent should sign for J.'s learner's permit, but not allow him to drive for three months. Although he disagreed with the recommendation and felt that Ms. McCalla's recommendation had undercut his authority, Respondent complied with the request. Ms. McCalla's version is considerably different. Agreeing that J. was demanding that she remove him from Respondent's home, Ms. McCalla noted that J. complained generally that Respondent was "overbearing, overpowering and does not give [J.] any privacy." Focusing on the larger issues than merely the proper punishment for J.'s recent misbehavior, Ms. McCalla recommended that the family undergo family therapy. Ms. McCalla's version is credited. By Respondent's own account, Ms. McCalla spent "several hours" speaking with J. initially. Although underage drinking is a serious matter that may necessitate serious discussions, it is unlikely that Ms. McCalla and J. could have spent "several hours" on this single transgression. It is more likely that J. broadened his complaints in the manner described by Ms. McCalla. Respondent's contrary version either undermines his credibility as a witness or, if sincere, his competence as a foster parent. During the fall, Respondent's relationship with Ju. deteriorated. In general, Respondent's nascent parental skills were insufficient to meet the needs of Ju. When a conventional menu of incentives and disincentives failed to produce the desired results, Respondent grew increasingly frustrated, but declined to take advantage of the support resources available to him through Project Teamwork 4 Kids and its contractors. Instead, Respondent, alone, proceeded with his own disciplinary scheme, intensifying his disciplinary measures each time that less intense measures failed. Eventually, conflict between Respondent and Ju. escalated, and the domestic situation became unbearable for both of them. For instance, at school, Respondent was legitimately concerned that Ju. not jeopardize his placement at the high school to which he had been assigned due to Respondent's efforts. Worried about Ju.'s associations at school, especially due to Ju.'s poor school associations in the past, Respondent required Ju. to sign into the library immediately after eating lunch, so he would not have the chance to socialize with his peers. If Ju. failed to sign in, a teacher was to telephone Respondent, who would go to school to find Ju. By Respondent's admission, he enforced this arrangement for four to six weeks. Respondent was adamant that Ju. not date until he was 16 years old. This was a legitimate concern due to sexual behaviors that Ju. had displayed prior to his arrival in Respondent's home. Early in the school year, while Ju. was still 15 years old, Respondent overheard him speaking on the telephone with a girl from school. Respondent interrupted the conversation and asked Ju. to ask the girl if her mother were home. Finding that she was, Respondent asked to speak to the mother. Explaining to the mother that Ju. was not allowed to go on one-on-one dates until he reached 16 years of age, Respondent, by his own testimony, managed to agitate and offend the mother. Respondent admitted that Ju. became upset because he had considered the girl his girlfriend. On another occasion, Respondent required that Ju. end a relationship with a girl at school. Without detailing any concerns about sexual activity, Respondent explained his intervention by noting that Ju. had taken another boy's girlfriend, who seems to have not been suitable for Ju.--in Respondent's opinion. At home, numerous times Respondent employed more intense strategies when conventional disciplinary interventions failed to produce the desired results. For instance, when Ju. persisted in viewing sexually unsuitable material on the television in his room, Respondent removed the bedroom door, thus depriving Ju. of all privacy. Also, when Ju. persisted in abusing and overusing the telephone, even after being placed on telephone restriction, Respondent removed the handsets when he left the home, leaving the boy without telephone service in the home, although he could walk outside the apartment to a neighbor or a pay phone. Gradually, frustration erupted into physical confrontations. Twice, Respondent ripped T-shirts off the back of the boy during angry exchanges. Once, Respondent lightly slapped the boy on the mouth when he swore at Respondent. Twice, Respondent intentionally damaged audio equipment used by Ju. For each of these actions, Respondent devised transparent stories to cover up his failure to handle Ju.'s transgressions in a positive, effective manner. As the above incidents suggest, Respondent sought to impose a level of control over Ju. that was unsuitable for Ju.'s age and the circumstances of the relationship that existed between Respondent and Ju. Lacking both experience and maturity, Respondent obstinately dug in deeper each time his discipline failed to produce the desired result. Never lacking in good motives, Respondent lacked the resources needed for the difficult parenting task that Ju. presented, and Respondent exacerbated the situation by refusing to accept the assistance of professionals who might have been able to help him with Ju. Over time, even Respondent's innocuous behavior- modification techniques became counterproductive. For instance, Respondent routinely insisted that he and a child not go to sleep without first resolving any conflicts that may have arisen. Although a salutary policy, if applied with discretion, Respondent's overbearing implementation of this policy intensified hostilities, rather than defused them. An example of the injudicious use of this policy took place in early February 2001 when Respondent and Ju. got into an argument over an uncompleted homework assignment. Respondent warned Ju. that Petitioner lacked sufficient beds to accommodate Ju. at the time and that, if Ju. did not compose himself, Respondent would call the police to have Ju. removed from Respondent's home. This was especially hurtful to a child who had already known the pain of abandonment and abuse. Trying to defuse the confrontation, Ju. demanded time to step outside and cool off, but Respondent, insistent on a resolution on his terms, ordered Ju. to remain inside until Respondent had finished talking to him. By March 2001, Project Teamwork 4 Kids representatives had tried to intervene on at least two occasions in recent weeks, but Respondent had become increasingly resistant to what he viewed as interference from caseworkers with Ju. and J. By this time, Ju. wanted out of the home, and Respondent wanted him out of the home. On March 28, 2001, Project Teamwork 4 Kids removed Ju. from Respondent's home. About six weeks later, Project Teamwork 4 Kids also removed J. from Respondent's home. Petitioner proved some of its specific allegations and failed to prove others, but, as the Administrative Law Judge noted at the final hearing, the basic issue in this case is whether Petitioner can prove that Respondent has committed an intentional or negligent act materially affected the health or safety of children in his home. Petitioner has met its burden with respect to Ju. Ju. would have been a considerable challenge to a person with considerable parenting experience and skills. Respondent lacked both, but, knowing Ju.'s special needs, nonetheless sought the responsibility of serving as Ju.'s foster father. As the situation worsened, Respondent lacked the insight to avail himself of the resources offered to him and Ju. Instead, Respondent resorted to ineffective disciplinary strategies that eventually deteriorated into angry outbursts, culminating in Respondent's angry and desperate threat to end the placement itself--a most injurious act, given Ju.'s circumstances and dissociative personality disorder. Although it is clear that Respondent assumed a very difficult undertaking, his incompetent discharge of these responsibilities, coupled with his obstinate refusal to accept readily available help from others with greater training and experience, justifies the revocation of his family foster home license.
Recommendation It is RECOMMENDED that the Department of Children and Family Services enter a final order revoking Respondent's family foster home license. DONE AND ENTERED this 22nd day of January, 2002, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of January, 2002. COPIES FURNISHED: Kathleen A. Kearney, Secretary Department of Children and Family Services 1317 Winewood Boulevard Building 1, Room 202 Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700 Peggy Sanford, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Deborah Guller Department of Children and Family Services 201 West Broward Boulevard, Suite 502 Fort Lauderdale, Florida 33301 Samuel D. Lopez Samuel D. Lopez, P.A. 629 Southeast Fifth Avenue Fort Lauderdale, Florida 33301 Alan Siegel 500 Northwest 34th Street, Apartment #105 Pompano Beach, Florida 33064
Findings Of Fact On or about December 5, 1977, the Respondents, Mr. and Mrs. Vincent A. Morris, filed an application for licensure to operate a foster home in District V of the Department of Health and Rehabilitative Services. Carol Parks, a Social Worker employed by the Petitioner and who is in charge of licensing in the Foster Care Section of District V, testified as to the procedures utilized in considering applications for foster home licensure. Ms. Parks testified that once an applicant files, she visits the applicant and goes through the orientation session, familiarizing the applicant with the forms, procedures and in a general manner outlining the standards necessary to obtain a foster home license. Ms. Parks ascertained that the Morrises were married and she additionally checked with the Sheriff's Department and other local law enforcement agencies to determine whether or not the Respondents had been convicted of a felony as an adult. 1/ Based on this search with the various local law enforcement agencies, Ms. Parks found no evidence of a conviction of the Respondents. As stated, the Respondents filed the application on or about December 5, 1977, and a license was granted them during April, 1978. On cross-examination, Ms. Parks failed to recall whether or not she asked the Respondents whether or not there were any outstanding felony convictions against them. She testified that she was satisfied with the manner in which the Respondents operated their facility and confirmed the fact that the Respondents were permitted to adopt a sixth foster child during January of 1979. Esther Morris testified that during the orientation session, Ms. Parks never inquired of her if she had been convicted of a crime. Mrs. Morris inquired of Ms. Parks and other agency personnel of the Department of Health and Rehabilitative Services whether or not she could begin to remodel her home when she initially filed her application. She was advised by Ms. Parks and others that she should defer any remodeling until they advised her to proceed. The Morrises later obtained approval from that Department to commence the remodeling of her home, which she did, and expended funds totaling approximately $22,000.00 for preparation of this facility as a foster home facility. Presently, she has six foster children, the last of which was adopted during January, 1979. She testified that Ms. Parks asked her whether or not she or her husband had been to jail and she replied that she had not. Petitioner's Exhibit No. 1 is a certified copy of a judgment and sentence indicating that on or about August 11, 1975, Respondent, Esther V. Morris, was convicted of welfare fraud, for which she was fined $500.00. Chapter 10C-10.29(7), Florida Administrative Cede, provides in pertinent part that: "No applicant can be considered who, as an adult, has been convicted of a crime." It is based on this rule that the Petitioner is here seeking to revoke the foster hose license of the Respondents. Inasmuch as the above-mentioned rule makes no mention of or provides any procedure for revocation of a license which has been granted, the undersigned is of the considered opinion that such rule provides no basis upon which the Petitioner can revoke the Respondents' license. Particular note was made of the fact that the Respondents credibly testified that they, at no time, misrepresented to the Department of Health and Rehabilitative Services that they were convicted of a crime as an adult. While it is true that the cited rule indicates that no person can be considered who, as an adult, has been convicted of a crime, a different issue is here posed inasmuch as the Respondents are now possessed with a license, a right to which certain due process procedures must be complied with prior to revocation. With these facts in mind, the undersigned is not prepared to read into the above- quoted rule authority which is not contained in said rule. Accordingly, I shall recommend that the Administrative Complaint filed herein be dismissed.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby recommended that the complaint filed herein be DISMISSED. ENTERED this 15th day of March, 1979, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 101 Collins Building MAILING ADDRESS: 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675
The Issue The central issue in this case is whether the Respondents' foster care license should be renewed.
Findings Of Fact At all times material to this case, the Respondents operated a foster home in Broward County, Florida, pursuant to a license that was issued by the Department in January, 1994. In March, 1994, the Department placed a foster child, M.A.G., in the Respondents' home. This child, M.A.G., was an extremely troubled girl whose interfering biological family kept her in an emotional state of constant turmoil. The "Visitation Reports" introduced into evidence by the Department reflect that the child's adjustment to placement with the Respondents went from "good" to "fair." As the contacts with her family continued, the child's progress with the Respondents deteriorated. The evaluation reflects that the placement went from meeting the child's needs to not meeting the child's needs as of a December 14, 1994 visit. In fact, Respondents asked the Department to remove M.A.G. from their home. Ms. Suppa described the family relationship between M.A.G. and the Respondents as "tumultuous." The contacts between M.A.G. and her biological family caused severe unrest within the home as M.A.G. was torn between her biological family and her growing interest in the Respondents. M.A.G.'s emotional problems were not unusual for children in the custody of the Department. In fact, many foster children in the custody of the Department have emotional problems. Ms. Suppa was involved in family therapy with the Respondents and M.A.G. from October, 1994, to the time M.A.G. was removed from the Respondents' home on January 6, 1995. Ms. Suppa verified that the Respondents did not abuse M.A.G. Ms. Suppa acknowledged that Respondents did not provide the necessary emotional support that M.A.G. needed, and recommended to the Department that the placement be changed. Ms. Suppa could not state what the Respondents could have done, which they did not try, to avoid the incident complained of by the Department. M.A.G. spoke of suicide on occasions but Respondents did everything asked of them to assist the girl. On December 18, 1994, M.A.G. was voluntarily admitted to the Florida Medical Center for psychological testing following an incident that occurred in the Respondents' home. On this occasion, M.A.G. had a knife in her hands and threatened to kill herself. The Respondents called the police to assist them. On release, M.A.G.'s emotional state continued to deteriorate despite Respondents' best efforts. Respondents took M.A.G. to counseling. They never missed a counseling session and willingly agreed to explore any options that were suggested. When M.A.G. chose to spend the 1994 holidays with Respondents, she was cursed by her sister and ignored by her grandmother. This caused a serious depression. M.A.G.'s biological mother did not attend her appointed counseling sessions. M.A.G. was disappointed since she had hoped to see her mother. On December 28, 1994, M.A.G. missed one dose of her medication. No conclusion is reached that this omission led to, or caused, the incident of January 3, 1995. On January 3, 1995, M.A.G. had to be Baker Acted. She was again admitted to the Florida Medical Center for psychological testing and treatment following an incident that occurred in the Respondents' home. Once again M.A.G. had threatened to kill herself with a knife. Since being moved from Respondents' home M.A.G. has progressed and is no longer on medication. No conclusion is reached from this progress, however, since M.A.G.'s biological family's contact with her is unknown. M.A.G. had a strong loyalty to her biological family. Respondents have been foster parents for many years in New York. This was the first incident wherein a foster child could not adjust to the Respondents' home. The Respondents tried everything within their control to make the foster relationship with M.A.G. work out.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Department of Health and Rehabilitative Services enter a final order approving Respondents' request for licensure renewal. DONE AND RECOMMENDED this 2nd day of November, 1995, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH 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 2nd day of November, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-1556 Rulings on the proposed findings of fact submitted by the Petitioner: Paragraphs 1, 2, 3, 6, 7, 9, and 11 are accepted. Paragraphs 4, 5, 8, 10, 12, 13 and 14 are rejected as irrelevant or not supported by the weight of credible evidence. Rulings on the proposed findings of fact submitted by the Respondents: Paragraphs 1, 2, 3, 4, 5, 8, and 9 are accepted. Paragraphs 6, 7, 10, 11, and 12 are rejected as irrelevant or comment. COPIES FURNISHED: Robert L. Powell Agency Clerk Dept. of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Kim Tucker General Counsel Dept. of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Carole C. Wilhelm Department of Health and Rehabilitative Services 201 W. Broward Boulevard Fort Lauderdale, Florida 33301 Carole A. and Alex Lezdey 9711 N.W. 20th Street Coral Springs, Florida 33701
The Issue Whether Petitioner's application for re-licensure as a family foster home should be approved or denied.
Findings Of Fact Petitioner, Lorraine Arnold, has operated a foster home since 1995 at her current place of residence. Petitioner applied for and was granted a family foster home license in January 1995. Petitioner was approved for placement of up to two children between the ages of 5 and 10 years. Foster home licenses are valid for one year and must be renewed annually. Petitioner's license was renewed annually thereafter. On December 15, 2000, Petitioner applied to renew her foster home license. Respondent denied Petitioner's application for renewal on March 9, 2001. During the relevant time-period in 2000, Petitioner was entrusted with responsibility for several children, including two teenage foster children, L. C. and J. B. In late August 2000, Respondent's case worker approached Petitioner with the request to accept into her home L. C., a 17-year-old female. Petitioner was told that L. C. was severely emotionally disturbed (SED), had violent behavior problems and was taking psychotropic medication. Because of L. C.'s history of behavioral problems, including incidents of violence, Respondent offered to contract with a private company to provide Certified Nursing Assistant (CNA) services to supplement the care given to L. C. Contract CNAs were to be present with L. C. around the clock, in order to provide Petitioner and her family some semblance of protection in the event of a violent outburst by L. C. This case worker assured her that under the watchful eye of the CNAs, L. C. would do fine. Petitioner was provided with additional monetary inducements by Respondent in order to persuade Petitioner to take in L. C. Upon placement, L. C.'s "Blue Book" was not provided to Petitioner. The "Blue Book" contained critical medical and social information about L. C. In addition, L. C. was not under the care of any local healthcare professional at the time of placement. Although Petitioner is a licensed pharmacist in Florida, she has received no special training in dealing with SED children. No specialized training of any kind was provided by Respondent during the two months that L. C. lived in Petitioner's home. Respondent was aware that L. C.'s needs required that she be placed in a living situation where she could receive proper therapy for her special needs, but none was provided. Respondent's conduct in the placement of L. C. in Petitioner's home violated its own guidelines and demonstrated very poor judgment on its part. The presence of contract CNAs was not intended to, nor did it in fact, relieve Petitioner of her responsibility to supervise foster children in her care. However, Petitioner was not instructed by Respondent that the teenage children in her care were not permitted to be alone or leave with the CNA, if the CNA offered to take them out for a supervised activity. In August of 2000, Petitioner gave L. C. and J. B., both minor girls, permission to go with the CNA, then on duty, to the home of L. C.'s aunt. While at the home of L. C.'s aunt, J. B., then fourteen years old, slipped out of the house and smoked marijuana. When J. B.'s case worker learned of the incident, she had J. B. tested for drug usage; J. B. tested positive for marijuana. Petitioner had L. C. tested and her test results were negative. Carla Washington, case worker for both L. C. and J. B., had previously informed Petitioner that L. C. was not to have contact with family members that was not supervised by Respondent. Petitioner misunderstood the instructions, and believed that L. C. was only restricted from having contact with her mother. Petitioner was not negligent in this incident, and J. B.'s misconduct could not have reasonably been foreseen. Less than a month before the incident in which J. B. smoked marijuana at L. C.'s aunt's house, there were two other incidents involving J. B. and L. C., with results detrimental to the foster children. On one occasion, Petitioner gave permission for the CNA on duty to take L. C. and another foster child out to the movies. Because of a family emergency, Petitioner left Orlando and drove to Tallahassee, leaving her adult daughter in charge of the household. The CNA took the two foster children to her residence, changed into "hoochie" clothes, went to a bar during which L. C. visited with her mother and witnessed a shooting. After the incident, the case worker spoke to Petitioner and reminded her that L. C. was not to have unsupervised contact with her mother. Petitioner complied with these instructions. No evidence was presented concerning the disposition of the CNA that perpetrated this outrageous conduct. Petitioner was not negligent in giving permission for the girls to go to the movies, and the CNA's conduct could not have been foreseen. On September 14, 2000, Petitioner was placed in a position of duress in regard to L. C. She had not received L. C.'s Blue Book, which contained all of her medical records and her Medicaid number, and L. C. was out of all of her psychotropic medications. Petitioner tried several times to find a psychiatrist who would treat L. C. She spent 2 days looking through the telephone book and calling every psychiatrist until she found one who would accept Medicaid. She also went to the Nemours Children's Clinic and spent most of the day waiting at the Sanford Health Department, where Petitioner finally discovered that L. C. could only be seen by a doctor in the Oviedo area. When the doctor in Oviedo was contacted an appointment was made for the following day at 2:00 p.m. Petitioner contacted the caseworker for assistance in getting L. C. to the doctor's appointment because Petitioner was unable to remain out of work for a third day. The case worker informed Petitioner that she was unable to assist, and if Petitioner did not see that the child got to the doctor any repercussions would be Petitioner's responsibility. Petitioner was given no choice but to rely on a family member to assist in making sure that L. C. received the required medical attention. Petitioner asked a family member to take L. C. and J. B. to the doctor's appointment. He left them in the reception area for 20 minutes to run an errand while L. C. waited to see the doctor. Before he returned, L. C. and J. B. misbehaved at the doctor's office. The adult family member did not have reason to believe that these two teenagers could not be left alone at a doctor's office for 20 minutes. He expected that the teenagers would behave themselves for such a short period of time. During the course of her testimony in this matter, J. B. testified that she had sexual relations in the house while living with Petitioner. This testimony is neither credible nor relevant to this proceeding. Petitioner has not committed an intentional or negligent act which materially affected the health or safety of L. C. or J. B. while in her care. Several years in the past, Petitioner used corporal punishment on a much younger, uncontrollable foster child on more than one occasion. Upon receiving counseling from her case worker, Petitioner agreed to corrective action to address her improper use of corporal punishment of foster children entrusted to her care. Over time, Petitioner has displayed extreme care and concern for the children placed in her care. She has taken the issues of supervision seriously. Petitioner has demonstrated that as a foster mother she has given the children placed in her care an abundance of love. She has taught them how to care for and love themselves. She has been there to listen to their needs and their desires, and she cares about them. She has taught them that self- control, self-discipline and hard work will lead to success in life.
Recommendation Therefore, it is RECOMMENDED that the Secretary grant Petitioner's application for renewal of her family foster home license. DONE AND ENTERED this 23rd day of October, 2001, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of October, 2001. COPIES FURNISHED: Lorraine Arnold 3997 Biscayne Drive Winter Springs, Florida 32708 Craig A. McCarthy, Esquire Department of Children and Family Services 400 West Robinson Street Suite S-1106 Orlando, Florida 32801 Virginia A. Daire, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue to be resolved in this proceeding concerns whether the Petitioners have been guilty of violation of pertinent statutes and rules governing qualification and capability to hold a foster home license and to operate a foster home, in this case a "therapeutic foster home" and, if so, whether their application for renewal of licensure should be denied.
Findings Of Fact The above-named Petitioners were licensed as operators of a therapeutic foster home and as therapeutic foster parents. Due to an alleged abuse report, they became involved in a revocation proceeding with the Department concerning their previously-held license. Upon advice by personnel with Camelot, Inc. (Camelot), a private provider which provides services to the Department for therapeutic foster care, by contract, they voluntarily relinquished their previous license on February 6, 2006, in the belief that they would still be entitled to a formal proceeding to contest that the alleged abuse occurred, and their licensure entitlement. The Department declined to afford them a hearing on the issue, and they appealed to the District Court of Appeal for the First District. The Department was upheld. They then applied for a renewal of their therapeutic foster care license on August 10, 2006, for Lake County, Florida. An evaluation of the application was launched by the Department and ultimately the Department issued a denial of the license application. A timely request for an administrative proceeding to contest denial of that license was filed by the Giegers. The license denial was based initially upon the Department's determination that the Giegers had allegedly inappropriately punished children in their home and that they had some sort of business interest or income interest in being licensed foster parents, purportedly a violation of foster parenting rules. Sometime thereafter a supplemental basis for denial was served upon them by the Department wherein the Department alleged that the Petitioners had also violated Section 409.175(4) and (12)(a), Florida Statutes (2006), because they had a child placed in their home through a guardianship agreement that had not been approved by a court and were therefore acting as an unlicensed foster home. A response to that supplemental denial notice was made by the Petitioners. Therapeutic foster parents are trained to provide for children with difficult behavioral problems. The Giegers received this training and remained in compliance with the training updates and continued education necessary in order to continue their licensure in good standing. In addition to this, Mrs. Geiger is a trained mental health specialist, with a master's degree, who works for Lifestreams, a mental health provider, providing services to disturbed children. The Giegers were previously affiliated, as therapeutic foster parents, with the private provider, Camelot, which provides services to the Department for therapeutic foster care. They were licensed as therapeutic foster parents at that time, and accepted a number of severely disturbed children into their home over the years while they were affiliated with Camelot. When a foster parent has a child placed in their home, Camelot has a therapeutic system whereby a therapist is assigned to that child and is available for consultation at any time of day. If the primary therapist is unavailable, the supervisor of that therapist is available for consultation. Camelot's therapeutic personnel and various mental health professionals have been frequently in the Giegers' home to consult, monitor, and assist with the care and therapy of foster children placed there. A number of those therapeutic personnel testified. They established that the Giegers are excellent parents who have provided exemplary care to the foster children placed in their home. These people have training in mental health and related fields. Some hold master's degrees and have been trained to recognize abuse or evidence of it. Some are psychologists, specifically assigned as the mental health professional working with particular children placed in the Giegers' home. In 2005, a child, J.D., was placed in the Giegers' home by the Department. In addition to J.D., there were other children in the home, including Tyler, a non-foster care child placed privately by Camelot with the Giegers, as well as the Giegers' own adopted son. All of the children in the home had been abused prior to their placement with the Giegers. J.D.'s previous situation before coming to the Giegers' home was particularly egregious. He had been starved, locked in a closet, had his fingernails removed by his parents and otherwise was the victim of severe parental abuse before coming into foster care. His was a case of high public notoriety and appears to have been thus treated with a heightened level of attention by the Department, as compared to the case of other children. When J.D. arrived at the Giegers' home after his initial rescue from his earlier situation, he purportedly weighed 58 pounds and was only 4 feet 8 inches tall, at the age of 17 years. During the time he resided with the Giegers, he grew several inches and gained almost 80 pounds due to the care given him by the Giegers. He was placed on special vitamins and formula, in addition to his regular meals, in order to restore him to appropriate physical condition. Because of his physical condition, extra efforts were made by the Petitioners to assure his safety. They even placed him in a private school because they felt he would be at risk attending a large public high school, which he would otherwise have been required to attend. J.D. did well at the Giegers' home initially and it was planned for him to remain in their home after he reached 18 years of age, if he continued to adjust favorably to being a member of their family. He began "acting out" more severely, however, with problematic behaviors. Ultimately it was determined by both the Giegers and Camelot that he should not remain in their home after he turned 18 because of the adverse impact he was having on other children residing in the home. Before the determination was made that J.D. would not remain in the Giegers' home after he reached 18 years of age, the Department had praised the Petitioners' care of J.D. After that decision was made, an attorney for the Department suggested to Mrs. Gieger that she be hired by the Department to provide special services to J.D. Apparently there was a funding problem with regard to continuing J.D. in private school, and this was suggested as a means of funding the private school. Mrs. Gieger, however, did not feel this funding was appropriate because she was already being paid by Camelot for these services, and expressed this to the attorney, she therefore declined that offer. In December 2005 the Department decided to have J.D. re-evaluated by his original evaluator, a psychologist, Dr. Dykel. During his meeting with Dr. Dykel, J.D. apparently told Dr. Dykel that the Giegers had cursed in his presence and in the presence of other children, used racially derogatory language concerning Black children in the foster childrens' presence and that Mrs. Gieger had sat on him as a means of restraint or punishment. He also stated that he was being deprived of food. This meeting occurred on a Friday afternoon. After the meeting J.D. returned to the Giegers' home and made statements about what he had said to Dr. Dykel. Initially the Petitioners thought nothing about the statements, but on the following Tuesday an abuse report was called in indicating that the Giegers had inappropriately punished J.D. in the manner he had related to Dr. Dykel. The child Tyler, who had been placed in the Giegers' home was a child who suffered from severe mental health issues. He had been placed privately with Camelot by his father. He had set his father's and step-mother's bed on fire the previous Christmas because he did not receive a toy, a "PS2," that he asked to be given him for Christmas. There was testimony that he was told by J.D. that if he would make a statement against the Giegers to the Department that he would get the PS2 toy that he wanted. He was taken by Erica Summerfield, an investigator assigned by the Department to the case concerning the abuse report, to the "Child Advocacy Center," for a statement. He apparently made such a statement, of the above import, but then recanted it. Nonetheless, based only on the statement made by J.D. and by Tyler, Erica Summerfield made a determination that the abuse report should be determined to be "founded." As a result of her report (and apparently a past history of abuse reports concerning the Giegers' foster care facility, none of which had been proven to be "founded"), Camelot apparently suggested to the Giegers that they voluntarily relinquish their license, purportedly telling them that they would still have the ability to challenge the abuse report through a Chapter 120 hearing. They sought to obtain a Chapter 120 hearing and the Department denied their request. An appeal ensued and the denial by the Department was affirmed by the District Court of Appeal. During the pendency of that appeal, the Giegers filed an application to renew their license, which was denied. This proceeding ensued after that denial, when the Giegers requested a formal proceeding. The Department offered the testimony of Erica Summerfield who was a child protective investigator assigned to the investigation. She was the supervisor of the person who interviewed J.D. and Tyler, apparently the only sources of investigative information leading to her finding that abuse had occurred. Ms. Summerfield testified that her concerns about the Giegers led her to make a report finding that abuse had occurred because alarms had been placed on the bedroom doors of childrens' bedrooms in the Giegers home; that the Giegers had used excessive restraint against J.D. (allegedly held him on the floor and lay on him or sat on him); and that J.D. had been mentally injured by the Giegers and not provided with sufficient food. She also opined that Mrs. Gieger had made inappropriate statements to J.D. None of these purported findings are supported by credible evidence. Initially it is found that J.D.'s and Tyler statements to the interviewer, who then apparently related them to Ms. Summerfield, constitute, at best, "second-hand" hearsay. Neither the interviewer nor J.D., nor Tyler testified at the hearing, and Tyler later recanted his statements made to the interviewer. The Respondent's exhibits two, three, and four, the interview reports, were offered into evidence and were only admitted regarding a basis for the Department's course of conduct in the matter, but not for the truth of any facts depicted on the face of those exhibits. Concerning the alleged complaint, related to the interviewer, regarding lack of food, the credible persuasive evidence shows that J.D. actually grew several inches after being placed with the Giegers, even though doctors had opined that he would not grow much, if at all, because of the starvation that had occurred early in his life. He also gained substantial weight while being cared for by the Giegers, so that he essentially looked like a normal child by the time he left their care. He had been emaciated when he came to the Giegers' care and had been described as looking like a "concentration camp victim." He was described as being far smaller than a child of his age when he came to the Giegers' care, but seven months later appeared to be essentially a normal child in physical appearance. The evidence, in fact, clearly supports the determination that the Giegers did provide J.D. with appropriate nutrition during their care of him. The basis for the alleged abuse regarding his not being properly fed is simply not credible. The Giegers had also been accused by J.D. or Tyler, or both, with using inappropriate language, racial slurs and cursing in J.D.'s presence, purportedly causing him mental harm. However, mental health experts present in the Giegers' home on a weekly and almost daily basis had never heard any inappropriate language, including any inappropriate racial language or inappropriate cursing in the childrens' presence during their visits to the Giegers' home. Many of these visits were unannounced. Two of the counselors or mental health professionals often present in the home were African-American. They found no evidence of racial tension or racially derogatory language being used by the Giegers or in the Giegers' home. It was their belief that the Giegers did not exhibit any behavior which suggested racism. Further, there were no Black children placed in the Giegers' home during the time that J.D. was there. There is simply no credible evidence to support any finding that inappropriate language was used by Mr. or Mrs. Gieger in J.D.'s or other childrens' presence, of a racially derogatory nature or otherwise. Part of the basis for the abuse finding (and the reason for license denial) was excess restraint or "sitting on" J.D. as punishment. This position was based on the statements of the two children, J.D. and Tyler. One of them, Tyler, tearfully recanted his story shortly after he made the statement. Erica Summerfield testifying for the Department, admitted in her testimony that she was aware of his recantation. She also admitted that Tyler's parents had asked her more than once to allow him to be placed back in the Giegers' home. They also had disclosed to her that he had a habit of making inappropriate statements and lying. There is evidence that J.D. had told him that he would receive a toy he wanted very much if he would make a statement to the Department that J.D. had been abused by the Giegers. Most importantly, J.D. had identified the point in time when Ms. Gieger was supposed to have sat on him as during an occasion when he broke a window at the house. Other mental health providers who were in the home around that time reported never seeing any bruise marks or other evidence of injury to J.D. or at any other time. They also reported that Mrs. Gieger was especially careful of his safety because of the seriously debilitated condition of his body. Most importantly, however, during the time that the window was broken by J.D. and he was severely acting out, Mrs. Gieger was on the phone with a professional from Camelot who was helping her to calm or "de-escalate" J.D. and who remained on the phone with Mrs. Gieger during the entire incident. That expert heard nothing which indicated that Mrs. Gieger had sat on the child or in anyway inappropriately restrained him. Mrs. Gieger denied using physical restraints on the foster children at the hearing. The Department maintains, however, that in two prior reports discussed in Camelot's letter, report 1999-127436 and 2002-007021, the Giegers had admitted restraining foster children. In the 1999 incident the child purportedly sustained rug burns on the face while being restrained on the floor by Mr. Gieger. These reports are at best second-hand hearsay. Moreover, they are not reasons of which the Petitioners were provided notice, as part of the basis for the denial of their licensure application which triggered this proceeding. Moreover, both of those incidents were immediately reported by the Giegers themselves to the Department and, ironically, the Department did not see fit to make any determination at the time, or since, that those incidents amounted to abuse. No finding was made that those alleged incidents were "founded" abuse episodes. Moreover, the Department relies upon an incident where Mrs. Gieger purportedly stated that she used force against J.D. when he tried to grab her neck. She purportedly told Ms. Summerfield in an interview that she gave J.D. a "therapeutic bear hug" by grabbing his arm and turning him around. He fell to the floor as a result. Parenthetically, not even the Department claims that she forced him to the floor. Mrs. Gieger's testimony at hearing concerning this event was to the effect that she grabbed J.D.'s wrist in order to prevent him from striking her or grabbing her neck and that he just collapsed to the floor. The Department then maintains that foster parents are not permitted to use such "force" on foster children, such as grabbing J.D.'s wrist, because it equates this to the use of corporal punishment and that grabbing a child's arm or wrist could "traumatize" an already vulnerable foster child. Mrs. Gieger's testimony, however, indicates that the use of "therapeutic bear hug," even if it occurred, is part of an approved method of training which she had, which is designed to safely manage children who are acting out in a potentially dangerous way, until they can calm down. She testified that Camelot, the Department's contracting agent, had approved this training for her. Moreover, when a foster parent is in danger of attack by a 17-year-old, even a somewhat debilitated child, who threatened striking or grabbing the foster parent by neck or throat, to grab his arm or wrist to prevent such conduct is reasonable and does not constitute unreasonable restraint. Assuming this event occurred, to characterize the grabbing of a child's wrist, to prevent injury or potential injury to a foster parent or another, as excessive force or "corporal punishment" is nonsensical. There is no credible, persuasive evidence that either Mr. or Mrs. Gieger engaged in any excessive force or restraint amounting to abuse. A concern was raised by Dr. Dykle, the psychologist, who was fearful of the fact that alarms had been placed on childrens' rooms in the foster home. Ms. Summerfield based her finding that abuse had occurred, in part, on the report that the alarms had been placed on the doors of some of the childrens' rooms. Ms. Summerfield, however, admitted in her testimony that alarms are often and routinely placed on childrens' rooms in therapeutic foster care homes. The mental health experts who testified clearly established that in every therapeutic foster home such alarms must be placed on bedroom doors because of a safety concern for other children. Children who are placed in this type of home are often serious safety risks for themselves or for other children. They have often been found themselves to be perpetrators of inappropriate or violent conduct. Many times they are children who have been sexually abused and have themselves become sexual perpetrators. In fact, there was a child in the Giegers' home at the time J.D. was there who had set his parents' bed on fire because he did not get a desired toy for Christmas. Dr. Dykle's apparent grave concern about alarms being placed on the childrens' bedroom doors is surprising since it appears to be completely contrary to generally accepted, safe practice for therapeutic foster homes, something that he should have been aware of if he is indeed an expert in child abuse issues. Ms. Summerfield admitted that she was aware that this was a virtually universal safety practice in therapeutic foster homes and yet, paradoxically, used it as a factor in support of her finding that abuse had occurred, as a basis of denial of re-licensure. Ms. Summerfield also admitted that she had spoken with Camelot professionals who assured her that the Giegers had been exemplary foster care parents. She acknowledged that J.D. had made untrue statements in the past about other foster placements. She admitted that the only evidence of improper restraint, or any kind of abuse or neglect in the home, was essentially predicated on the statements of the two children who did not testify in this proceeding. She conceded that one of them had recanted and she knew of this well before the hearing. Mental health experts from Camelot who testified, established that it is a very frequent event for foster children placed in therapeutic foster homes to act out and to make false statements and accusations concerning their care-givers. They also indicated that J.D. had made such false allegations in the past against other caregivers. This was all information that a thorough investigation would have made known to the Department, at the time it was making the determination that there was a basis for a finding of abuse. The only witness other than Ms. Summerfield, presented by the Department, was Amy Hammett, the licensing official who actually signed the letter denying the license application. She testified that she did not review all of the documents that made up the Giegers' license application. Some other department employee had been assigned to the case and it had been later transferred to Ms. Hammett before the final decision was made. She had reviewed five relevant forms, but nothing else. She had no evidence to support the Department's position that the Giegers had relied upon the foster care services they provided for income to support their own family, other than the fact that they had taken a legal position in the appeal from the previous attempt at a Chapter 120 proceeding, to the effect that they had something in the nature of a property interest in their foster care license. This may have been a necessary position to take in an attempt to establish jurisdiction or standing in that proceeding, but other than that, and one statement attributable to Mr. Gieger that there was an adverse financial effect on the Giegers related to that proceeding, it was not established that the Giegers were relying on the income from foster care services to support their family. Rather, in the context of that statement and the Giegers legal position during the course of their appeal, the reference was most likely made in the context that the hiring of an attorney, with related expense, in prosecuting the first case, including an appellate proceeding, caused an adverse financial effect, which is understandable. That does not constitute credible, persuasive evidence that the Giegers were relying upon foster care services as income to support their own family and themselves in violation of any Department rule. Mrs. Gieger, indeed, testified under oath that they did not rely upon foster care income to support their family. Her testimony and that of others showing that they have successfully operated a well- managed, licensed home for a substantial period of time, shows that the Petitioners are financially capable of operating safely and successfully under a new license. There is no persuasive evidence to the contrary. The greater weight of the credible evidence is persuasive in establishing that the Giegers provide quality therapeutic foster care and have not engaged in the abuse with which they are charged. Even J.D. expressed the desire to come back and live with the Giegers and, after he reached 18 years of age, he did so. This certainly does not support the existence of abuse. Moreover, Earnest Thomas, J.D.'s guardian ad litem established that the Giegers provided J.D. with excellent care. He was a frequent visitor in their home and paid close attention to J.D.'s well-being during times pertinent to this case. Further, the caseworker, Sheila Donato, was the person who took J.D. from the Giegers' home when he was removed by the Department. On this occasion she stated that he was tearful and crying when he left the Giegers' home and asked if he would be able to come back to their home for Christmas. There were no bruises or other evidence that he had been harmed in any way. She established that the fact that he returned to the Giegers home after he turned 18 years of age is evidence that he had never been abused while there. After the Giegers' foster care license had been relinquished voluntarily by them under the above-referenced circumstances, Tyler's parents executed "guardianship papers" placing Tyler in the custody or guardianship of the Giegers and they continue to allow Tyler to reside in their home. The Department maintains that this was an illegal placement because the Giegers were not a licensed foster care facility at that time and had not secured a court order allowing Tyler to be in their guardianship. The circumstances were, however, that Ms. Giegers' mother was the attorney who prepared the guardianship papers for the Giegers and for Tyler's parents to execute. She rendered an opinion to them that that was sufficient to justify allowing Tyler to remain in the Giegers' home. Ms. Gieger testified that she knew of other teachers and other individuals who had used similar documents to establish a basis to take custody of a child in their home. She believed that what she was doing was legal. There was no intent by her, or Mr. Gieger, to engage in any kind illegal custody, guardianship or circumvention of the foster care licensure requirements, or any other illegal act. There is no evidence that Tyler had been adjudicated dependent and subject to the custody of the Department.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Department of Children and Family Services granting a foster home license to the Petitioners, authorizing their operation as a therapeutic foster home. DONE AND ENTERED this 9th day of August, 2007, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with Clerk of the Division of Administrative Hearings this 9th day of August, 2007. COPIES FURNISHED: Jerri A. Blair, Esquire Lockett & Blair Post Office Box 130 Tavares, Florida 32778 Ralph J. McMurphy, Esquire Department of Children and Family Services 1601 West Gulf Atlantic Highway Wildwood, Florida 34785 Gregory Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John J. Copelan, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Robert A. Butterworth, Secretary Department of Children and Family Services Building 1, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue in this case is whether Petitioner should revoke Respondents' foster home license for use of corporal punishment of a foster child in violation of Section 409.175(8), Florida Statutes (2001), and Florida Administrative Code Rule 65C-13.010. (Citations to statutes are to Florida Statutes (2001), and citations to rules are to rules promulgated in the Florida Administrative Code in effect on the date of this Recommended Order.)
Findings Of Fact Petitioner is the state agency responsible for licensing and regulating foster homes in Florida. Respondents are licensed foster parents. On November 1, 2001, Petitioner's Child Protection Team received an abuse report alleging that Respondent, Yvonne Lindsay, had administered corporal punishment to a foster child under Mrs. Lindsay's care and identified in the record as D.J. D.J. was born on May 6, 1997. D.J. urinated in the van owned by Respondents. D.J. urinated in the van regularly. Mrs. Lindsay became angry and grabbed D.J. forcefully by the arm. Mrs. Lindsay testified that she did not spank D.J. Mrs. Lindsay's denial concerning corporal punishment is neither credible nor persuasive. On November 2, 2001, members of the Child Protection Team examined D.J. at one of their offices. One team member who observed D.J. is an Advanced Registered Nurse Practitioner (ARNP). The ARNP has specialized in family practice since 1980 and was the supervising nurse practitioner in the examining room when other members of the Child Protection Team examined D.J. The ARNP observed fresh red contusions on D.J.'s back as well as numerous healed lesions on D.J.'s buttocks from old injuries. The ARNP observed D.J. herself and supervised the examination.
Recommendation Based upon the foregoing Findings of Fact and Conclusion of Law, it is RECOMMENDED that the Petitioner enter a Final Order finding that Mrs. Lindsay used corporal punishment against one of her foster children in violation of Section 409.175 and Rule 65C-13.010 and revoking Respondents' foster care license. DONE AND ENTERED this 6th day of March, 2003, in Tallahassee, Leon County, Florida. ___________________________________ DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of March, 2003. COPIES FURNISHED: Richard Cato, Esquire Department of Children and Family Services 400 West Robinson Street Suite S-1106 Orlando, Florida 32801-1782 J. William Masters, Esquire 2901 Curry Ford Road, Suite 207 Orlando, Florida 32806 Paul Flounlacker, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700 Jerry Regier, Secretary Department of Children and Family Services 1317 Winewood Boulevard Building 1, Room 202 Tallahassee, Florida 32399-0700
