The Issue The issue presented in this case is whether Respondents' foster home license should be revoked.
Findings Of Fact Respondents were first licensed as a family foster home in April 1994. As a result of Respondents' obtaining a foster home license, the Department put in their care: M.A1.A and M.Au.A, brother and sister; and, J.H. and L.H., brother and sister. M.Au.A was nine years old and her brother M.A1.A was eight years old. J.H. was eight years old and his sister, L.H., was five years old. J.H. and L.H. were later adopted by their foster parents, Robert and Irene Holmes. J.H. was born September 2, 1991. He was, and is, a very troubled young man. Schizophrenia runs in his biological family and his mother abused chemicals during her pregnancy. He is diagnosed with Attention Deficit-Hyperactivity Disorder (ADHD) and has episodes of violence, aggression, unpredictability, poor impulse control, and agitation. He is likely to be pre-schizophrenic and, given his behavior, could develop full schizophrenia in the future. Even though only diagnosed with ADHD and in addition to stimulant medication prescribed for his ADHD, J.H. takes several psychotropic medications generally prescribed for manic and depressive behavior and other mood disorders. However, these drugs do not seem to fully control his behavior. Because of his aggression and severe behavior problems, J.H. has been involuntarily committed multiple times and has been repeatedly recommended for a residential, therapeutic foster home placement. Unfortunately, for various reasons, the Department has not provided J.H. a residential, therapeutic foster home placement. On October 7, 1999, the Department received an allegation of abuse against Respondents. The allegation involved J.H. The allegations involved alleged favoritism of L.H. over J.H., abandoning J.H. with teachers, emotional abuse, and not wanting him in their home. The Department's investigation, on very tenuous evidence, verified abuse for neglect - abandonment; neglect - failure to protect; abuse - other mental injury; neglect - inadequate supervision; and abuse - confinement/bizarre punishment. The report further found some indication of medical neglect and other physical injury-threatened harm. Because of the abuse report, the Department took L.H. and J.H. into shelter care on October 8, 1999, and filed a dependency action regarding J.H., Case No. 99-628-CJ. Additionally, based on the verified findings of the abuse report, the Department revoked Respondents' foster home license. By Order of the Circuit Court dated July 12, 2000, the dependency action was dismissed for lack of evidence and an utter lack of co-operation by Department's personnel and witnesses during the dependency action. J.H. was returned to Respondents' home and has remained with them to date. L.H. was returned to Respondents' home sometime before her brother's dependency action was concluded. Put simply, at the hearing, none of the allegations of the abuse report or facts supporting the verified findings were supported by the evidence since only uncorroborated hearsay was introduced at the hearing. Moreover, even though the evidence was hearsay, many of the allegations appeared from all the testimony to have been taken out of context and given meanings which were not warranted when their context was known. Significantly, the Department did not call J.H. to testify about any of these allegations. To the contrary, the testimony of various witnesses indicated that Respondents did, in fact, keep a very neat, tidy, and orderly foster household and that J.H. was not abused or neglected. The evidence presented by Respondents and the testimony of their witnesses indicate that J.H. was provided a safe environment. The teachers provided temporary care during the period of time alleged to be when Respondents were neglecting J.H. by being out of town. The witnesses, including the teachers, stated that the plan was that they would care for J.H. until the return of Respondents. Furthermore, there was never any indication that the child was mistreated or neglected or left without care by Mrs. Holmes after returning from a wedding out-of-state. Finally, there was no evidence of noncompliance with any treatment plan, that the multiple involuntary commitments were in any way mentally abusive of J.H., or that the quiet times J.H. needed to calm himself were intended to be time-out punishment or were inappropriate or bizarre punishments of J.H. Because the allegations of abuse were not established, there is no basis on which to revoke Respondents' foster home license. Therefore, Respondents are entitled to their foster home license.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Children and Family Services enter a final order not revoking Robert and Irene Holmes' family foster home license. DONE AND ENTERED this 24th day of December, 2001, 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 24th day of December, 2001. COPIES FURNISHED: Keith J. Ganobsik, Esquire Department of Children and Family Services 11351 Ulmerton Road, Suite 100 Largo, Florida 33778-1630 Charles P. Vaughn, Esquire 120 North Seminole Avenue Inverness, Florida 34450-4125 Peggy Sanford, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
The Issue 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 denial of Respondent's re-licensure application as a Foster Care Home for the reasons stated in the Department's denial letter of October 30, 2000, was appropriate.
Findings Of Fact Based upon observation of the witnesses and their demeanor while testifying, the documentary materials received in evidence and the entire record complied herein, the following relevant facts are found: Under Section 409.175, Florida Statutes (2001), the Department of Children and Family Services is the State Agency responsible for evaluating, qualifying, licensing, and regulating family foster care homes. Petitioner, a single male, previously employed with an abused children agency in Broward County, Florida, was granted a foster care parent license by the DCF's Foster Care Licensing unit effective August 10, 1999, through November 10, 1999. A second child specific foster home license for G.K. was issued to Petitioner, effective from March 3, 2000, through August 10, 2000. DCF takes the position that Petitioner is not eligible for re-licensure as a family foster home primarily because he exhibited "poor judgment" relative to a single medical treatment, taking the temperature of an eleven-year-old male foster child through his rectum during the month of August 2000. DCF further alleges that Petitioner has willfully violated specific statutes and rules relating to the conduct and maintenance of the foster home. Those alleged violations are specified in the licensure denial letter dated October 30, 2000, from the DCF to Petitioner. Nicara Daniels is a foster care licensing unit worker with the DCF since November 1999. Ms. Daniels had on-the-job- training and some Professional Development Center Training for new employees. In the licensing unit, Ms. Daniels had training in physical abuse, sexual abuse, drug abuse, and emotional abuse toward children. The DCF used Ms. Daniels to provide testimony regarding each violation as they appeared in the letter of denial. Herein below the allegations are chronologically addressed. Medication and cooking wines in Petitioner's bathroom. On or about July 31, 2000, a period when Petitioner was licensed, Ms. Daniels, Child Protection Investigator assigned Petitioner, made an unannounced visit to Petitioner's home during a period when Petitioner was medicating himself. During her walk through Petitioner's bedroom she entered his bathroom and saw Petitioner's medication for his diabetes on the bathroom shelf along with several bottles of cooking wines. Ms. Daniels acknowledged that she observed the cooking wines in the bathroom. Along with bottles of medication she also observed the lock box in which Petitioner kept his medications and cooking wines when not in use. The door to Petitioner's bedroom and bathroom each had operative locks on them. Ms. Daniels knew that Petitioner took medication for his diabetic condition prior to this inspection and she acknowledged having no experience with the use of cooking wines. Rule 65C-13.011(14)(a) and (b), Florida Administrative Code, requires all medication, poisonous chemicals, and cleaning materials to be in a locked place and inaccessible to children, and that alcoholic beverages should be stored out of the reach of small children; with the recommendation that these beverages be kept in a locked place. Ms. Daniels admitted that for the children, all of whom were 11 years or older, to have access to the medication or cooking wines, they must enter the bedroom, go into the bathroom and open the lock box. There is no evidence presented of any foster care child having access to Petitioner's bedroom, bathroom or the locked medicine box at any time. In making the foregoing finding, I have considered Ms. Daniel's testimony that she knew Petitioner was on medication. Ms. Daniels, however, never questioned the children whether they entered or attempted to enter Petitioner's bedroom at any time when he was not present. I find the mere presence of medications and cooking wines in Petitioner's bathroom, absent other evidence, is not a violation of the cited rule. John Snider in Petitioner's Foster Care home. Ms. Daniels testified that during an early morning visit on an unspecified date in July of 2000, she observed a young man, John Snider, in Petitioner's home. After she advised Mr. Snider had to be screened, Petitioner followed the DCF's process and a screening application for Mr. Snider was submitted to the Department. The Department screened and cleared Mr. Snider and advised Petitioner and Mr. Snider by letter on August 21, 2000. Rule 65C-13.010(4)(g), Florida Administrative Code, requires that the foster care parent notify the department of the presence of such person. Rule 65C-13.007(1), Florida Administrative Code, requires screening for "all persons that provide respite care in the . . . home on an overnight basis must be screened." Rule 65C-13.009(6)(a)5., Florida Administrative Code, requires a criminal records check for "all persons 18 years and older residing in the . . . home." Petitioner, during a telephone conversation with Ms. Daniels on July 31, 2000, informed her that Broward Juvenile Justice placed Mr. Snider in his home on July 27, 2000. It is Ms. Daniels' opinion that a four-day period between entry and notifying DCF is not reasonable notification. This "unreasonable" delay formed the basis for violation of the cited rule, notwithstanding the particular circumstances. Rule 65C-13.007(1), Florida Administrative Code, which requires "all persons that provide respite care . . . must be screened.” I find Ms. Daniels' opinion that four days is not "reasonable" notification not based upon any protocol, policy or rule of the DCF. In making the foregoing finding, I have considered the following. Petitioner informed Ms. Daniels by telephone that there were matters to discuss; however, the discussion took place four days later when Ms. Daniels was available. The Department of Juvenile Justice for Broward County placed Mr. Snider in Petitioner's home. After submitting an application, Mr. Snider was screened and cleared by the DCF. Considering the evidence as a whole, I find Mr. Snider's presence in Petitioner's home, under authority of the Broward County Juvenile Justice unit, and with telephonic notice to the DCF's licensing unit worker four days after entry into the home is not unreasonable, under the circumstances. Home Department's placing of T.J. in Petitioner's Foster Sometime during the first week of August 2000, Robert Mistretta, Department's child protection investigator and T.J.'s initial case worker, removed T.J. from his family and sought overnight foster care for him. Mr. Mistretta, aware of T.J.'s family situation, his medical, physical, emotional, and sexually abusive history sought a foster care home with those factors in mind. The Department's placement unit instructed him to take T.J. to Petitioner's home for an overnight stay. Mr. Mistretta took T.J. to Petitioner's home with the intention of an overnight stay and reassessment of the situation the following morning. After discussion with Petitioner of T.J.'s need for an overnight stay, Petitioner agreed. Mr. Mistretta chose not to provide Petitioner with information regarding T.J.'s medical, social, physical, emotional, or abusive family history. However, Mistretta gave Petitioner the DCF's emergency pager phone number [570-3081] for use during non-working hours and for emergencies should the need arise. Rectal Temperature Taking What had begun as an overnight stay resulted in a permanent placement and on or about August 6 or 7, 2000, T.J. became ill. His illness began during the day and continuing into the night. According to Petitioner, T.J. exhibited symptoms of a cold or flu, including fever, chills and headache. During the night, he was restless, tossing and turning in his sleep. Petitioner, having no medical history on T.J., became concerned about T.J.'s condition. He made several calls to the Department's emergency pager number [570-3081] provided him by Bob Mistretta, without success. Petitioner then attempted to contact Dr. Stuart Grant, a pediatrician, to no avail. Petitioner thereafter attempted to use his MAPP training first aid guide provided by the Department, but found those instructions unclear. Petitioner then sought information concerning fever and temperature taking from the internet. During the night while T.J. was asleep, Petitioner used a rectal thermometer to take T.J.'s temperature, causing him to awaken suddenly, somewhat startled. Petitioner talked with T.J., explained his concerns with his condition and the reason for taking T.J.'s temperature in that fashion. T.J. responded in a positive manner and went back to sleep. The following morning, Petitioner contacted Mistretta and explained what had happened with T.J. the night before. Mistretta took T.J. aside and privately inquired if he understood "good" touching from and "bad" touching. T.J. stated he understood the difference. When asked about Petitioner's manner of touching him while taking his temperature during the night, T.J. affirmed that Petitioner's touching was a "good" touch and not a "bad" touch. Mistretta, based upon his experience working with children who had suffered abuse, accepted T.J.'s response as true. Satisfied that no "bad" touching occurred during the rectal temperature taking process, Mistretta reported the incident to his supervisor, including his conclusion that nothing sexually or abusive had occurred and concluded his report in part as follows: "This case is closed with no indicators. There is no maltreatment that addressed a bad choice of judgment by a caretaker. There are licensing [unit] concerns regarding Mr. Marlowe's choice to use a rectal thermometer on an 11 year old child." (Emphasis Added) Mr. Mistretta testified that his understanding of the sequence of events the night T.J. was ill were: T.J. was running a high fever and had trouble falling asleep. Petitioner tried cold cloths to reduce the fever that, according to Petitioner's monitoring, was getting too high. Since T.J. was having trouble sleeping and once he did sleep, Petitioner thought a rectal thermometer would be best to try not to awaken him, Petitioner chose to use that form of temperature taking. T.J. reacted with a little bit of pain. Based on Petitioner's history of dealing with sexually abused kids, that reaction is not normal. When Petitioner talked with him about what happened, T.J. disclosed his history to Petitioner. In the process of making the decision as to the appropriate treatment, Petitioner consulted with a Johnson and Johnson book and several medical web sites. The documents from the medical web sites were subsequently provided by Petitioner. I find Mr. Mistretta's testimony credible regarding his conversation with Petitioner immediately after the T.J.'s incident. Following the above, Ms. Mistretta, in addition to his duty as T.J.'s caseworker, was also assigned by his supervisor to investigate a hotline abuse report. Mr. Mistretta investigated the alleged abuse narrative report and found no indication of maltreatment. He recommended the hotline abuse report be closed. Upon being presented with the hotline abuse report narrative with suggestions and allegations of sexual abuse, Mr. Mistretta testified: "The information generated in this narrative in the reporter page that has reporter information states that the CPI, Robert Mistretta, told reporter about allegations. So the source of this report is me. The reporters made their own clarifications, answered their own questions regarding some things instead of calling me back to clarity, talked amongst themselves, found out that they didn't like what happened, and some of the narrative is not true. It is blown out of the water, if you would. The narrative was started by a report. When Mr. Marlowe talked to me, I talked to somebody who talked to somebody, who talked to somebody. The next thing you know we have sexual abuse. The narrative is not true. I did not agree with the removal of T.J. (Emphasis Added) I find Mr. Mistretta's testimony on this issue to be consistent and credible. In making the foregoing finding, I have considered the testimony of the DCF's other witnesses, none of whom had personal knowledge of the abuse report contents. However, Mr. Mistretta is the only witness with personal knowledge of events acquired in his positions as T.J.'s initial caseworker, his placement agent, the interviewer of T.J. and Petitioner, and the originator of the initial report. I have considered the fact that this incident occurred during the week of August 6-12, 2000. Petitioner's license expired on August 10, 2000. However, the DCF did not remove T.J. from Petitioner's home until September 6, 2000, almost a month later. I have also considered Ms. Daniels' testimony that during Petitioner's unlicensed period, DCF's placement unit continued to place children in Petitioner's home. I have also considered the deposition of Dr. Patricia Buck, M.D., pediatrician and Child Protection Team member for District 14 [Polk, Highland and Hardee counties], who was qualified as an expert in pediatrics and child abuse. After her review of documents provided by DCF and given the circumstances by DCF's counsel and Petitioner, Dr. Buck opined that use of a rectal thermometer would not have been her recommendation, had she been the care provider. According to Dr. Buck, anal temperature taking as a medical procedure is not abuse. Adding that the more medical history one has on a patient, the less likely a mistake in patient treatment. The evidence as a whole, including Mistretta's testimony and Dr. Buck's opinion, is persuasive as it relates to the issue of the circumstances and the "appropriateness" of the rectal temperature taking procedure. Accordingly, the testimony of Ms. Daniels, the licensing unit informs placement and other Department units of those parents who were licensed, parents who were not licensed or parents whose licenses had expired. She recalled attending the staffing meeting regarding the T.J. temperature incident and recalled informing staff that Petitioner was not a licensed foster care home after August 10, 2000. According to Ms. Daniels, placing children in a non-licensed home is not permissible. However, its her testimony that in this case, DCF's placement unit placed children in Petitioner's home during a period of time he was not licensed, and during the time T.J. was in Petitioner's home because of [DCF] "it being in a crisis situation with the number of homes we had." In making this finding, I have considered both the DCF's need for foster care beds and its concern for the safety of foster care children. I have also considered the DCF's use of Petitioner's home when they were "in a crisis situation with the number of homes we had." Screening of Ms. Scott Regarding the screening of Ms. Scott, Ms. Daniels testified Petitioner informed her that the screening application papers for Ms. Scott were submitted to the Department and had apparently come up missing. Ms. Daniels acknowledged that she had no evidence to support her conclusion that Ms. Scott was a respite sitter for Petitioner's foster care children; that she had never checked with the DCF to ascertain whether or not Ms. Scott had been screened. Not inquiring whether Ms. Scott had been screened renders Ms. Daniels' testimony questionable. I find Ms. Daniel's testimony regarding Petitioner's failure to provide the Department with Ms. Scott's application for screening not credible. Unwillingness to Provide Information on Mary Poe At some unspecified date, Ms. Daniels recalled she had a conversation with Petitioner regarding his next door neighbor, Ms. Poe, someone who would "check" on the foster children from time to time when Petitioner was late returning from work. Ms. Daniels did not recall if Ms. Poe entered Petitioner's home or gave the key to the children to enter in the home on days he was late returning from work. Ms. Daniels recalled only that, Petitioner's attitude regarding screening Ms. Poe was "uncooperative" and "defiant." During cross-examination Ms. Daniels could not recall the conversation with Petitioner when she was informed that Petitioner's condominium covenants required the manager to have a key to his apartment in case of emergencies. She did recall that Petitioner told her Ms. Poe was the mother of the condominium manager. Ms. Daniels recalled when she voiced concern with the situation Petitioner retrieved his key from Ms. Poe and returned it to the condominium manager for pick up by the children when they returned from school. I find Ms. Daniel's testimony regarding Petitioner's unwillingness to provide information concerning Mary Poe evasive, inconsistent and not credible. In making the foregone finding, I have considered Ms. Daniel's inability to recall facts, dates, times, places, regarding the matter to which she testified. I have considered the fact that Petitioner, when Ms. Daniels voiced concern, corrected the situation by removing the key from Ms. Poe's possession, thereby removing the need for screening by the Department. I have also considered Ms. Daniels' inability to recall facts regarding an incident the DCF considered an intentional refusal by Petitioner to "cooperate" and "communicate" with Department's staff. Confidentiality in Keeping a Life Book on Foster Care Children Ms. Daniels testified that Petitioner informed her the foster care children had a computer life book (photo album) website. After being directed to the website by Petitioner and after viewing the website, Ms. Daniels concluded Petitioner had "released" the names and photos of the foster children on the websites. Without providing a rational basis, she testified that keeping required foster child life books in an electronic format is, in and of itself, inappropriate. She further testified that placing the names and photos on the web site violated DCF's rule of confidentiality. Rule 65C.010(1)(c)4., Florida Administrative Code, requires the foster care parent to maintain the children's records which ensures confidentiality for the child and the biological parents. Petitioner maintained that each child made an individual and personal decision to use the computers he made available in his home. To his knowledge each child placed his personal information, name, foster care status, photos, etc., on the web sites during chats and exchange of information with others users in various chat-room conversations. Ms. Daniels never inquired of the foster children whose names and status were found on the book of life web sites to ascertain whether they or Petitioner placed personal information on the web site. I find her testimony on this issue to be questionable, but reliable. In making the foregoing findings, I have considered Ms. Daniels' testimony and the absence of evidence in support thereof. I find Petitioner's testimony that he never divulged any confidential information on the web sites regarding foster children in his care credible, but not persuasive. As the custodial parent, Petitioner has the ultimate responsibility to maintain and protect the confidentiality of the children in his care and under his supervision. Permitting children of divulge personal/confidential and potentially endangering information on the web site is a breach of Petitioner's parental responsibility. Removal of G.K. from medication prescribed by a Doctor DCF alleged that Petitioner removed G.K. from prescribed medication in violation of Rule 65C-13.010(1)(b)7.a, Florida Administrative Code, which imposes on the foster parent the responsibility for dispensing the medication as prescribed by the physician and recording the exact amount prescribed. In support of this allegation, the Department offered the testimony of Ms. Daniels. Ms. Daniels, by her admission, had no personal knowledge regarding G.K. and Petitioner's actions with G.K.'s medication. Her testimony was based upon what she had previously read in the file prepared by Stephanie Gardner, DCF's Representative and Petitioner's caseworker before the case reassignment to Ms. Daniels. When Ms. Daniels initially inquired of Petitioner about G.K.'s medication, he informed her that before he discontinued G.K.'s medication, he consulted with a nurse who in turn consulted with the prescribing doctor about the matter. Based on the response received from this consultation he discontinued G.K.'s psychotropic medication. Ms. Daniels based her conclusion of unauthorized discontinuance of medication on her conversations with Ray Mallette, a Department mental health counselor. In his letter to Petitioner, Mr. Mallette stated, in pertinent part: "To my knowledge, G.K. was not taking any psychotropic medication while under my care. Treatment was terminated in June of 1999, by mutual agreement, as no further care needed." Ms. Daniels testified that during her conversations with Mr. Mallette she recalled his stating that he did not authorize discontinuation of G.K.'s medication. Ms. Daniels could not state with any certainty if Mr. Mallette's use of the term "medication" included psychotropic medications or other medications. Petitioner provided Ms. Daniels the name of the Broward County physician with whom Petitioner had conferred through his nurse and who authorized taking G.K. off medication. There is no evidence that Ms. Daniels attempted to verify whether the medical persons provided by Petitioner had given instructions to take G.K. off psychotropic medications. I find Ms. Daniels' testimony on the issue of G.K.'s medication to be incomplete, confused and, not creditable. In making the foregoing finding, I have considered Mr. Mallette's letter reflecting that he is not a medical doctor or dentist; therefore, he cannot prescribe nor discontinue a prescribed medication to a patient. I. Use of profanity and general unwillingness to work cooperatively with the Department Rule 65C-13.010(1)(c)1., Florida Administrative Code, requires foster care parents to "work" cooperatively with the counselor as a member of a treatment team in seeking counseling, participating in consultation, and preparing and implementing the performance agreement or permanent placement plan for each child. In support of the above allegations, the DCF offered only the testimony of Ms. Daniels who stated: ". . . [A]lso during a conversation Mr. Marlowe used profanity. As far as [sic] concerned as just being uncooperative and maybe someone being uncooperative meaning there's something else behind it as far as, you know, not one to follow the rules that are set by the Department." I find the above testimony of Ms. Daniels to be vague and questionable. In making the foregoing finding, I have taken into consideration the fact that Ms. Daniels could not recall the date, time, place, words, or the circumstances of her conversation with Petitioner in which the alleged profanity was uttered. I have also taken into consideration the testimony of Ms. Stephanie Gardner, regarding Petitioner's uncooperativeness. Ms. Gardner, acknowledging that she did not know, did not remember nor did she recall; then went on to state: " . . . that at some unknown time and date, Petitioner stated, mentioned or indicated some information about a child or foster child that he had parented before. I don't know if it was Gary or one of the children that were actually at the Broward County at the Outreach Broward facility where he worked, but it was some information, and it was kind of alarming." I find the testimony of Ms. Daniels and the testimony of Ms. Gardner regarding the alleged profanity and regarding alleged uncooperativeness of Petitioner with the DCF questionable. Excluding the foregone evidence, other testimony regarding Petitioner and his conduct addressing matters that are related to those specific issues raised in DCF's denial letter of October 30, 2000, is neither material nor relevant to issues under consideration in this cause and disregarded.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is
The Issue Whether Petitioners, K.W. and L.A.W., should be granted a license to be foster parents.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of facts are made: Petitioners are a married couple who applied to Respondent for a foster home license. Petitioners have three children. The background investigation conducted by Respondent revealed reports of incidents of domestic violence and battery involving Petitioners and their children. On October 4, 1999, police officers responded to Petitioners' home after receiving a report of domestic violence. The officer's investigation revealed that one of the Petitioners, L.A.W., had been battered by her son. The child had been involved in pastoral counseling for his aggressive behavior. Petitioner, K.W., advised the police officer that the child, W.A.W., would be moving from the residence because of his continuing inappropriate behavior. On April 7, 2002, another incident of domestic violence was reported and investigated. On this occasion, the two younger children of Petitioners were involved in an altercation that resulted in Petitioner, K.W., being rendered unconscious by a blow to the head with an object delivered by one of the children, C.W. C.W. was arrested for aggravated battery. In February 2003, Petitioners desired to keep a six- month-old, unrelated child in their home. The child was placed in the home contingent on C.W.'s moving from the home and not residing in the home. Petitioners agreed to this contingency of placement, and the child was placed in Petitioners' home. On November 5, 2003, Petitioners applied to be licensed as foster parents. Ten days after Petitioners applied to be licensed, another incident of domestic violence occurred. On November 15, 2003, two of Petitioners' adult children got into a fistfight which resulted in one having a broken nose. As a result, W.A.W. was arrested. At the time of the altercation, W.A.W., 21 years old and the oldest child who had moved out at an earlier time as a result of his behavior, was residing at Petitioners' residence. Although the police report indicates that the incident occurred at Petitioners' residence, the testimony indicated that it occurred "down the street." All three of Petitioners' children continue to reside locally and frequent their parents' home. Petitioners are highly recommended by a representative of The Children's Home Society, a Guardian ad Litem, and their pastor. Respondent has the responsibility of placing foster children in a safe setting. But for the behavior of their children, Petitioners would qualify for licensure. As long as Petitioners' children frequent Petitioners' residence, any child placed in that residence is at risk. As a result, Petitioners are not qualified to be licensed as foster parents.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services enter a final order denying the foster care license application of Petitioners. DONE AND ENTERED this 12th day of January, 2005, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of January, 2005. COPIES FURNISHED: Thomas J. Thompson, Esquire Thomas Thompson, P.A. 100 South Washington Avenue Titusville, Florida 32780 Richard Cato, Esquire Department of children and Family Services 400 West Robinson Street, Suite S-1106 Orlando, Florida 32801-1782 Paul Flounlacker, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
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
Findings Of Fact Respondents have cared for foster children for some twenty years. In November or December of 1975, they began with Christian Youth Care, Inc. (CYC), a foster home in Zephyrhills founded under the auspices of the First Baptist Church of Zephyrhills. Since then small groups of adolescent girls have lived with respondents and their teenage daughter, Dawn. In all, some 80 children have lived at CYC since respondents have had charge of the home. In July of 1977, petitioner placed June Holmes, who is deaf and dumb, with respondents. After June had been with the Houghs for two weeks or so, Lillian Parsons, a social worker in petitioner's employ, told Mrs. Hough that June should be wearing a hearing aid. June did not want to wear a hearing aid. She was also disappointed that Mrs. Hough would not take her to Daytona Beach; she became very upset, wielded a straightened safety pen and started knocking things off bureaus. When Mr. Hough served as a medical technician in the armed forces, unruly patients were sometimes wrapped in blankets. Perhaps remembering this experience, he enlisted Mrs. Hough in wrestling June to the floor, wrapping her in a blanket and securing the blanket with three belts. In the process, Mr. Hough said to June, "See how mad you can get." These events caused concern among the other children living in the home, who gathered to watch and, at respondents' suggestion, to say prayers. Mrs. Hough told June that she loved her. After June had lain bound in this fashion for 45 minutes, respondents released her. The following day Mrs. Hough called Mrs. Parsons to report the incident and to ask that June be placed in another home. Mrs. Parsons expressed no disapproval of respondents' method of restraining June nor did she tell them not to do it again. June remained with respondents until she left for boarding school in St. Augustine. When June returned to the Houghs from school on Easter vacation 1978, she wanted a new pair of shoes that cost $24.95. Respondents bought her a different pair instead. Easter morning June wanted to wear her old shoes, not her new shoes. This caused an argument. Mrs. Hough stayed home with June while Mr. Hough took the others to church. When Mrs. Hough began packing June's clothes into a suitcase, June was "worried that [respondents] would move [her] out." Deposition of June Holmes, p. 5. She walked outside and sat under a tree near the road. Mrs. Hough telephoned her husband and summoned him home from church. With the help of a deputy sheriff brandishing handcuffs, respondents coaxed June into their van and drove her up the driveway to their home. At first she refused to leave the van, so respondents went inside without her. When June eventually went inside, there was another confrontation. Mr. Hough wrestled June to the floor and sent Mrs. Hough for a blanket. After respondents wrapped June in the blanket and secured it with belts, Mr. Hough set off to retrieve the children he had left at church. After Mr. Hough returned with the other children, respondents unwrapped June and there was an Easter egg hunt. The next day Mrs. Hough called petitioner's offices in New Port Richey, then drove June to New Port Richey and left her there, because she wanted no more to do with her. When Mrs. Parsons learned that respondents had wrapped June in a blanket a second time, she asked to be relieved of responsibility for June. Eventually David J. Schultz, at the time a child welfare social worker in petitioner's employ, assumed responsibility for June; and June was again placed with respondents. Mr. and Mrs. Hough frequently communicated with guidance counselors and teachers at the schools children in their care attended. They made six visits to talk about Evelyn Ciacelli's progress with Ricky Rowell, guidance counselor at Woodland Elementary School in Zephryhills, and spoke to him on the telephone about Evelyn on several other occasions. Disappointed in Evelyn's progress with her homework one night, Mr. Hough picked her up and shook her. On another occasion, Evelyn and her roommate were wrestling in their room after they had been sent to bed. Mr. Hough heard them from the kitchen, walked into their bedroom with a spatula in his hand, and gave Evelyn, who was wearing a bathrobe over her nightgown, a swat on the rear with the spatula. On November 20, 1978, David J. Schultz left Petitioner's employ. He subsequently went to work for a corporation controlled by respondents and began living in their home. He lived there on December 13, 1978. On December 13, 1978, Bonnie Blair McKenzie, then employed by petitioner as a community youth leader, picked up Cindy Spickelmier at a shelter home in Dade City and drove her to respondents' home. Cindy, a 14 year old, was at the shelter home after having run away from another foster home, the Newmans'. She had lived with respondents previously and David Schultz also knew her. Shortly after Cindy's arrival, David Schultz was talking to her in the Houghs' living room, where she was sitting on a couch, crying. Also present were Mr. Hough, Ms. McKenzie, Nancy Newman, the foster mother who had previously had custody of Cindy, and Ed Springer, then the social worker in petitioner's employ responsible for Cindy's placement. Angry because Cindy was ignoring him, David Schultz grabbed the hair of her head, jerked her up into a standing position, had her bend over and lean against a desk for support, and struck her buttocks with a wooden paddle an inch thick. He administered the first blow with such force that Ms. Newman was frightened and Ms. McKenzie was "horrified and devastated." (T.52). Cindy fell to her knees, hysterical. Less forcefully, David Schultz struck her buttocks a second time. At the hearing Mr. Hough testified that: after Dave gave her the swats she sat back down and she was a new child. We were able to communicate with her and we thought we were really making good progress and being able to work with the child. That was the purpose of the new program and of course we were trying to set up parameters that would be beneficial to the child. (T.233). Notwithstanding this perceived improvement in Cindy's deportment, Ed Springer gave Cindy another spanking 30 or 45 minutes after David Schultz had finished. In the presence of Mr. and Mrs. Hough, and Mr. Schultz, Ed Springer struck Cindy five times on the buttocks with the same wooden paddle David Schultz had used, as punishment for running away from the Newmans' house. Later, on the evening of December 13, 1978, Cindy ran away from the Houghs'. She ended up at her mother's house where she spent the night. The next day her mother took her to the Pasco County Sheriff's Department. There Fay Wilbur an investigator for the Sheriff's Department, took photographs of Cindy's badly bruised buttocks. Petitioner's exhibits 3, 4 and 5. On the following day, December 15, 1978, Dr. Lena Ayala, a pediatrician, examined Cindy. She found large "[v]ery tender, painful" (T.55) hematomas covering the whole area of Cindy's buttocks. If she had seen a child in the custody of its natural parents in that condition, Dr. Ayala testified, she would have reported the matter to the child abuse registry. Petitioner discharged Ed Springer because of the beating he had administered to Cindy Spickelmier. Petitioner publishes a manual with a chapter entitled "Foster Family Group Homes for Dependent youth," Petitioner's exhibit No. 8. In part, the manual provides: 8.4.4 Unacceptable disciplinary approaches include: a. Corporal punishment--slapping, kicking, hitting, etc. * * * Humiliation, ridicule, sarcasm, shaming in front of the group or alone. Deprivation of essential needs such as food, sleep, or parental visits. Petitioner's exhibit No. 8, p.9. Although petitioner sometimes furnished foster group home licensees copies of its manuals, petitioner's files do not indicate that either Mr. or Mrs. Hough ever received a copy. Respondents wore unaware of the manual's contents on December 13, 1978; and David Schultz was also unaware of any policy against corporal punishment of foster group home children. Lorraine Cash, a foster mother in Pasco County, never spanked any foster child in her care over the age of eleven years. On the other hand, Henry Arnett, another foster parent in Pasco County, used corporal punishment in disciplining teen aged foster boys. He and his wife, Doris, were named foster parents of the year in 1978. On December 14, 1978, Joanne Wall telephoned respondents on behalf of petitioner and told Mr. Hough that David Schultz should be barred from their premises. When Mr. Hough protested that David Schultz lived on the premises, Ms. Wall asked Mr. Hough to keep David Schultz from working with the girls, which Mr. Hough agreed to do. On December 18, 1978, respondents submitted an application to petitioner for a child care center license, an application on which they had begun work considerably before December 13, 1978. Discouraged by the pace at which this application was being considered and by what respondents perceived as unfairness on the part of some of petitioner's personnel, Mr. Hough on February 15, 1979, told William Laing, a manager for petitioner, that he wanted all the foster children but two removed by five o'clock the following day, a Friday. Even though the agreement between petitioner and respondents called for two weeks' notice by the foster parents, petitioner's exhibit No. 6, Mr. Hough was unwilling to wait so long. Petitioner arranged to pick up all the foster children in respondents' care on the following day. Some of the children had not been told they would be leaving the Houghs' home. Respondents own improved real estate from which they derive rental income. In addition, CYC, funded by the First Baptist Church of Zephyrhills, paid respondents a salary. Occasionally, Mr. Hough worked outside the home. Pasco County contributed to the costs of caring for foster children. Respondents did not need moneys petitioner paid them on behalf of the children for their own personal purposes.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That, on the next anniversary of the date of respondents' original foster group home license, petitioner discontinue respondents' license for a period of one year. DONE and ENTERED this 19th day of June, 1979, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Barbara McPherson, Esquire Post Office Box 5046 Clearwater, Florida 33518 Robert L. Williams, Esquire Post Office Box 443 Dade City, Florida 33525
The Issue The issue in this case is whether Petitioner should deny the application for renewal of Respondent's foster home license because “skinny dipping” with a foster child at the foster home violates Section 409.175, Florida Statutes (2001), and Florida Administrative Code Rule 65C-13. (All section references are to Florida Statutes (2001). All references to rules are to rules promulgated in the Florida Administrative Code in effect on the date of this Recommended Order.)
Findings Of Fact Petitioner is the state agency responsible for licensing and regulating foster homes in Florida. A foster home license is valid for a period of one year and must be renewed annually. Various privatized entities supervise licensed foster homes, review applications for foster home licenses, and make recommendations to Petitioner regarding the applications. However, the recommendations are not binding on Petitioner. Petitioner, rather than the private entity, is the licensing agency. For example, Petitioner rejected the recommendation from the private entity with responsibility for reviewing the application at issue in this proceeding. Petitioner first issued a foster home license to Respondent on January 28, 2000. Petitioner licensed Respondent to operate a therapeutic foster home. A therapeutic license authorized Respondent to operate a foster home for children with psychological or emotional disorders and for children without such disorders. Therapeutic foster homes operate under the auspices of a private entity known as Personal Enrichment through Mental Health, Inc. (PEMHS). PEMHS recommended that Petitioner issue the original foster home license on January 28, 2000, and a renewal license that Petitioner issued on January 28, 2001, for the second year. The second therapeutic foster home license expired on January 27, 2002. Petitioner never took action to discipline or revoke Respondent’s therapeutic foster home license. In July 2001, Respondent applied for a non- therapeutic foster home license. The non-therapeutic license that Respondent seeks authorizes a licensee to operate a foster home only for children without psychological or emotional disorders. Non-therapeutic foster homes operate under the auspices of a private entity known as Family Continuity Programs (Family Continuity). Family Continuity recommended that Petitioner approve the application for a non-therapeutic foster home license. However, Petitioner did not follow the recommendation of Family Continuity and denied the application. Petitioner's denial of Respondent's application for a non-therapeutic foster home license is the proposed agency action that is at issue in this proceeding. Respondent's application for a non-therapeutic foster home license is not an application for a new license. Rather, it is an application for renewal of an existing license. Both the therapeutic license that Respondent held at the time of the application and the non-therapeutic license that Respondent seeks authorize the licensee to operate a foster home for children without psychological or emotional disorders. By applying for a non-therapeutic foster home license before the expiration of his therapeutic foster home license, Respondent sought to renew his license to operate a foster home for children without psychological and emotional disorders. The non-therapeutic license that Respondent seeks does not impose any requirements in addition to those that Respondent had already satisfied when Petitioner granted the therapeutic license to Respondent. The requirements for the therapeutic license are more stringent than those that must be met to qualify for a non-therapeutic license. The requirements for a therapeutic license are more comprehensive, and Petitioner requires an applicant for a therapeutic license to have more training than an applicant for a non-therapeutic license. A non-therapeutic license does not impose requirements in addition to those imposed for a therapeutic license. Petitioner proposes to deny the application for renewal of Respondent's foster home license on the sole ground that Respondent went "skinny dipping" with two minor males. One of those males was a foster child assigned to Respondent. The foster child is a victim of past sexual abuse and has psychological and emotional disorders. The child suffers from oppositional defiance disorder and mood disorder. The symptoms of the disorders include self-injury, such as head banging, aggression, anger, and low self-esteem. However, many of the behavioral problems diminished during the 15 months that the foster child was in Respondent's care. The "skinny-dipping" events occurred between six and nine times during the 15 months that the foster child was in Respondent's care. During that time, the foster child was between 12 and 14 years old. The foster child swam nude in the swimming pool at Respondent's residence and bathed nude in the hot tub adjacent to the pool. On some of those occasions, Respondent was nude in the hot tub and swimming pool with the foster child and at other times the two were in the swimming pool and hot tub independently of each other while both were nude. The local sheriff's office investigated the foster home and found no indicators of abuse. Once PEMHS learned of the "skinny dipping" events, neither PEMHS nor Petitioner sought to revoke Respondent's therapeutic foster home license or to provide Respondent with remedial training. Rather, PEMHS removed the foster child from the foster home and refused to assign any more foster children to Respondent's foster home. At the administrative hearing, Petitioner sought the post-hearing deposition testimony of Dr. Cotter for several purposes. One of those purposes was to show the impact on the foster child from the "skinny dipping" events. Another purpose was to show that the "skinny dipping" was "grooming behavior" for future pedophilia. The ALJ sustained Respondent's objection to the admissibility of the expert deposition testimony for the purpose of showing the impact on the foster child and for the purpose of showing that the "skinny dipping" was "grooming behavior" for future pedophilia. Dr. Cotter could not render an opinion concerning the actual impact on the foster child from the "skinny dipping" events or whether those events were actually intended by Respondent as "grooming behavior" for future pedophilia. Dr. Cotter did not intend to evaluate either the foster child or Respondent before rendering his opinions and, in fact, never evaluated either individual. Any expert opinion by Dr. Cotter concerning "grooming behavior" for pedophilia was not relevant to the grounds stated in the Notice of Denial. That expert opinion was relevant only to grounds not stated in the Notice of Denial. Nudity in a swimming pool and hot tub are not synonymous with "grooming behavior" for pedophilia. Nudity and "grooming behavior" for pedophilia are separate grounds for denying the application for renewal of Respondent's license to operate a foster home. Petitioner failed to provide adequate notice prior to the administrative hearing that Petitioner sought to deny the renewal of Respondent's license on the separate ground that Respondent engaged in "grooming behavior" for pedophilia. Fundamental principles of due process prohibit a state agency from notifying a regulated party of the allegations against the party and then, at the hearing, proving-up other allegations. One of the primary functions of an ALJ is to assure that an administrative hearing is a fair hearing. Respondent was not prepared at the administrative hearing to submit evidence, including expert testimony, to refute any allegation not stated in the Notice of Denial. The admission of evidence relevant to allegations not stated in the Notice of Denial would have required a continuance of the administrative hearing to provide Respondent with an opportunity to refute the allegation. A continuance would have denied Respondent a remedy during the period of continuance, increased the economic burden on Respondent, and frustrated judicial economy. Nothing prevents Petitioner from bringing a separate proceeding against the licensee based on the allegation that Respondent engaged in "grooming behavior" for pedophilia. The ALJ limited the testimony of Dr. Cotter to those grounds for denial that Petitioner stated in the Notice of Denial. In relevant part, the Notice of Denial states: After careful review and consideration, your application has been denied. Our decision is based on the following: Your admission that you and two minor boys, one of which was a foster child under your supervision, participated in several "skinny dipping" incidents during your recent licensure as a foster parent for Pinellas Enrichment Through Mental Health Services (PEMHS). As you are aware, the nature of a boy's early experiences may affect the development of his sexual attitudes and subsequent behavior. Therefore, foster parents are expected to provide opportunities for recreational activities appropriate to the child's age. "Skinny dipping" in a hot tub with two minor boys violates the intent of this rule. These incidents reflect poor judgment for a person who is a licensed foster parent. Respondent's Exhibit 1. The Notice of Denial essentially states four grounds for denying the application for renewal of Respondent's license. One ground is the impact on the development of the foster child's sexual attitudes and subsequent behavior. Another ground is nudity between a foster parent and a foster child. A third ground is that Respondent exercised poor judgment. The remaining ground is that Respondent provided recreational activities that were not appropriate to the foster child's age. No evidence shows that the "skinny dipping" events had any adverse impact on the development of the foster child's sexual attitudes and subsequent behavior. Dr. Cotter did not evaluate the foster child to determine the actual impact of the events on the foster child. Contrary to the statements in the Notice of Denial, Petitioner's representative testified at the hearing that Petitioner did not consider the impact on the child that resulted from skinny dipping with Respondent. The preponderance of evidence shows that the actual impact of the foster care provided by Respondent during the 15 months in which the "skinny dipping" events occurred was positive. Many of the foster child's behavioral problems greatly diminished. The foster child made remarkable progress in his behavior both at home and at school. The foster child bonded with Respondent, and Respondent was an exemplary foster parent. The placement of the child with Respondent was so successful that Family Continuity published an article in their magazine about the successful match between the foster child and Respondent. Family Continuity considers Respondent to be an exemplary foster parent and wishes to have Respondent in its foster care program. If Petitioner grants the application for renewal, Family Continuity intends to return the foster child to Respondent for adoption. The second ground stated in the Notice of Denial is nudity between the foster parent and foster child. Without considering the impact on the foster child, Petitioner determined that being naked in the presence of a foster child, without more, was sufficient to close a foster home, remove a child, and revoke a foster home license. Petitioner cited no written statute or rule that prohibits nudity between a foster parent and foster child; or that establishes intelligible standards for regulating such nudity. Petitioner failed to submit competent and substantial evidence to explicate an unwritten policy that prohibits or regulates nudity. Rather, some evidence shows that nudity between foster parents and foster children is generally unavoidable and common. The third ground stated in the Notice of Denial is that Respondent exercised poor judgment. Several witnesses at the hearing and Dr. Cotter opined that Respondent exercised poor judgment. It is unnecessary to determine whether Petitioner exercised poor judgment because Petitioner cited no written rule or policy that defines or prohibits "poor judgment." For reasons stated in the Conclusions of Law, Petitioner must base a denial of a license application on a finding that the applicant violated a specific statute or rule. Petitioner cannot use the Notice of Denial to invent requirements that are not authorized by statute or rule. Petitioner cited no statute or rule that defines "poor judgment" or that establishes intelligible standards to guide the discretionary determination of whether an applicant has exercised poor judgment. In the absence of intelligible standards, the determination of whether an applicant has exercised poor judgment is necessarily an exercise of unbridled agency discretion. The use of unbridled agency discretion to make findings of fact violates fundamental principles of due process. Unbridled agency discretion creates the potential that agency decision-makers may define poor judgment by relying on their personal predilections rather than on those standards authorized by the legislature. Even if it were determined that poor judgment is a standard authorized by the legislature and that Respondent violated that standard, the determination is not dispositive of whether Petitioner should renew Respondent's license to operate a foster home. For example, representatives for Family Continuity and PEMHS agreed in their testimony that Respondent exercised poor judgment. However, Family Continuity recommends that Petitioner issue the non- therapeutic foster home license while PEMHS recommends against renewal of the license. The remaining allegation in the Notice of Denial is that "skinny dipping" is not an age-appropriate recreational activity. Rule 65C-13.010(1)(b)8a. states: 8. Recreation and community. a. The substitute parents are expected to provide opportunities for recreational activities for children. The activities must be appropriate to the child's age and abilities. Swimming in a swimming pool and bathing in a hot tub are recreational activities within the meaning of Rule 65C- 13.010(1)(a)8a. Swimming nude and bathing nude in a hot tub with a nude adult are not appropriate for a child who is between 12 and 14 years old and whose psychological and emotional abilities are diminished by past sexual abuse.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Petitioner enter a final order finding that Respondent violated Rule 65C-13.010(1)(b)8 and granting Respondent’s application for a therapeutic foster home license. DONE AND ENTERED this 8th day of May, 2002, in Tallahassee, Leon County, Florida. ___________________________________ DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of May, 2002. COPIES FURNISHED: Frank Nagatani, Esquire Department of Children and Family Services 11351 Ulmerton Road, Suite 314 Largo, Florida 33778-1630 Gary A. Urso, Esquire 7702 Massachusetts Avenue New Port Richey, Florida 34653 Paul Flounlacker, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
The Issue Whether Petitioner's application for renewal of her family foster home license should be denied on the grounds set forth in the June 20, 1995, letter from the Department of Health and Rehabilitative Services (HRS), Respondent's predecessor, to Petitioner.
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made: Respondent is (as was its predecessor, HRS) a state government licensing and regulatory agency. From September of 1989 to June 30, 1995, Petitioner was licensed by HRS (on a yearly basis) to operate a family foster home at her residence in Palm Beach County. In May of 1994, as part of the licensure renewal process, Petitioner signed an "Agreement to Provide Substitute Care for Dependent Children" (Agreement). In so doing, she agreed that she would, as a licensed foster parent, among other things, "comply with all requirements for a licensed substitute care home as prescribed by the department," "immediately report any injuries or illness of a child in [her] care," and "abide by the department's discipline policy." The previous day (May 23, 1994), Petitioner had received and signed a copy of HRS's "discipline policy," which provided as follows: FOSTER PARENT(S): You are aware that for some time, Health and Rehabilitative Services has discouraged the use of Physical punishment, including spanking, for children in foster care. Now, however, we have an Administrative Rule statewide which prohibits foster parents from using corporal punishment on foster children. This section of administrative Rule 10M- 6, which deals with discipline is reproduced in the following paragraph. "Licensing and relicensing procedure developed by the Department shall include the presentation of written foster care disciplinary policies to applicants and licensed foster parents to ensure that appropriate nonabusive disciplinary practices are used in dealing with foster children's behavior. Discipline is a training process through which the child develops the self- control, self-reliance and orderly conduct necessary for them to assume responsibilities, make daily living decisions and live according to accepted levels of social behaviors. The purpose of discipline is education and rational. It focuses on deterring unacceptable behavior by encouraging the child to develop internal controls. Foster parents are expected to define rules which establish limits and types of acceptable behavior. These rules must be clearly explained to each child and applied equally to all children. Prohibited disciplinary practices include group punishments for misbehavior of individuals; withholding of meals, mail or family visits; hitting a child with an object; spanking a child; physical, sexual, emotional and verbal abuse; humiliating or degrading punishment which subjects the child to ridicule; being placed in a locked room; and delegation of authority for punishment to other children or persons not known to the child. The use of isolation shall be used only for short periods of time as a therapeutic measure when a child's behavior is temporarily out of control. Such periods of isolation shall be observed and supervised by the foster parent to ensure the safety of the child." If you have problems with this new rule, please discuss this with your licensing counselors who will be able to help you work out alternative disciplinary techniques for each child, according to his/her needs. My signature acknowledges that I have read this statement, that I understand the content and agree to abide by it. A. G. is a 12 year-old foster child who currently resides in Boys Town in Tallahassee. Before entering the foster care system, he had been the victim of abuse. In 1994, A. G. lived in Petitioner's family foster home along with three other male foster children, J. W., M. M., and B. P., all of whom were teenagers with troubled pasts and juvenile records. On or about December 15, 1994, the day before A. G. was scheduled to leave Petitioner's home for another foster home, the other boys angrily reported to Petitioner that A. G. had misappropriated a gift certificate that belonged to M. M. and a watch that belonged to B. P. M. M. was particularly upset and angry about what A. G. had done. Upon receiving this report, Petitioner instructed the boys to "take care of" the matter. The boys then went to A. G.'s room and proceeded to hit A. G. with their hands and a belt. A. G. sustained a number of bruises on his buttocks and the back of his legs as a result of the attack. A. G. yelled and screamed as he was being hit. Petitioner was in her bedroom, which was adjacent to the room where the beating took place. At no time during the attack did she leave her bedroom to tell the boys to stop beating A. G., nor did she take any other action to stop the beating. Petitioner exercised extremely poor judgment in instructing the older boys to "take care of" the matter. She should have realized that the carte blanche she gave J. W., M. M., and B. P., who were upset and angry with A. G., placed A. G.'s physical safety at risk. She compounded her error by not carefully monitoring the older boys subsequent activities to make sure that they resolved the matter appropriately without harming A. G. The following morning, A. G. left Petitioner's home for another foster home, that of Janet Kerimoglu and her husband. A. G. arrived at the Kerimoglu home with very few belongings. Moreover, his physical appearance concerned Ms. Kerimoglu. A. G. appeared to be very thin. Furthermore, he had head lice and fresh bruises on his body. When asked about the bruises, A. G. explained that he had been beaten up by some teenagers the day before at Petitioner's home. A report that A. G. had been the victim of abuse while at Petitioner's home was made to HRS's abuse registry. The report was investigated by HRS's protective services investigative unit. On January 10, 1995, following the completion of the investigation, FPSS Report No. 94-117809 issued. The report classified as "proposed confirmed" the allegation that Respondent was guilty of neglect in connection with the beating that A. G. received at her home on or about December 15, 1994. According to the report, the beating occurred "because of [Petitioner's] lack of supervision and [her] failure to protect [A. G.]," a finding which is supported by the preponderance of the record evidence in the instant case. A request to expunge or amend the report was denied on June 6, 1995. By letter dated June 20, 1995, Petitioner was advised that her foster family home license would not renewed because of the finding of neglect made in FPSS Report No. 94-117809.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order denying Petitioner's application for renewal of her family foster home license. DONE AND ENTERED this 4th day of September, 1998, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 4th day of September, 1998.
The Issue The issue is this case is whether revocation of Respondent's Foster Care license privilege for his past and present conduct, determined by the Department of Children and Family Services (hereinafter Agency) to be inappropriate, was proper under Section 409.175, Florida Statutes.
Findings Of Fact Under Section 409.175, Florida Statutes, the Department of Children and Family Services is the State Agency responsible for evaluating, qualifying, licensing, and regulating family foster care homes. On or about November 5, 1999, the Agency, after Mr. Thibodeau's successful completion of the Agency's evaluation and qualifying procedures, determined Mr. Thibodeau to be of good moral character. At all times material to the application process, Mr. Thibodeau answered completely and truthfully each question contained on each standard application form and other documents presented to him by the Agency during the foster care home application process. Based upon its determination, the Agency granted Provisional Certificate of License, No. 1999-110-002, for Substitute Family Home care privilege to Mr. Thibodeau. Thereafter, the Agency placed three minor children in Mr. Thibodeau's home: two teenaged brothers, David M. and Daniel M., and seven-year-old Steve. After an unspecified period of time together, bonding began to develop between the brothers, Daniel and David, and Mr. Thibodeau. As a result of a mutual agreement, Mr. Thibodeau submitted an adoption application to the Agency to become the adoptive parent of the brothers David M. and Daniel M. At all times pertinent hereto, Mr. Thibodeau answered completely and truthfully each question contained in the standard application forms and other documents presented to him by the Agency during the adoption application process. Ms. Georgia Alezras, trainer for the Model Approach to Partnership in Parenting (MAPP) classes and Mr. Kelvin Birdsell, family therapist and continuity specialist, made a home-study visit to the Thibodeau residence at some time between early July and August 15, 2000. Mr. Birdsell testified that he confined his conversations to the brothers, David M. and Daniel M. during the visit. Mr. Birdsell further testified that his conversations with the brothers were separate and away from the presence and hearing of Ms. Alezras and Mr. Thibodeau, who conversed privately. On July 26, 2000, after Mr. Thibodeau submitted his adoption application, and after the home study visit by Ms. Alezras, the Agency received a confidential telephonic abuse report, Petitioner's exhibit number one.1 The abuse report contains an interpolation of the private conversation between Ms. Alezras and Mr. Thibodeau during the earlier home-study visit. Ms. Carolyn Olsen, Family Counselor Supervisor, testified that Ms. Georgia Alezras reported her private conversation with Mr. Thibodeau to her Agency supervisors. The Agency's interpolation of the Alezras-Thibodeau conversation formed the factual allegations contained in the Agency's August 18, 2000, revocation letter. Sergeant Hagerty, Pasco County Sheriff's Office, testified that she and Sergeant O'Conner investigated the abuse allegations, consisting solely of the Agency's interpolation of Ms. Alezras' earlier and prior conversation with Mr. Thibodeau, by checking with authorities in Washington and checking with the National Criminal Information Center (NCIC) with negative results. The removal of the children from Mr. Thibodeau's home was based upon a joint decision to be safe and take a preventative approach in this matter. Petitioner's exhibit number two, a composite of eight letters, contained a "Closing of Foster Home For Children" report form, with a "foster home closing date" of August 18, 2000, and the caseworker and supervisor's signature on the date of August 22, 2000. The report, under "reason for closing" heading, contains the following comments: [H]is license was revoked because he recently divulged information about his past, that, had we known these facts prior to licensing, would have disqualified him to act as a foster parent---namely, he stated that some years ago he left the state of Washington with an unrelated male child without parental or state permission and lived with him for years under false identification. Ms. Georgia Alezras did not testify. Mr. Thibodeau's testimony is the only evidence of the private conversation with Ms. Alezras. Mr. Thibodeau's recollection of his responses to Ms. Alezras' questions was: [I]n 1975 he moved to the State of Washington; in 1976-77 he met Daniel L.; in 1976-77 he left the State of Washington and moved with Daniel to Pennsylvania where Daniel enrolled in school using his Washington school records; Daniel's mother visited them in Pennsylvania and maintained contact by telephone; Daniel, at age nineteen returned to Washington. He used a friend's birth certificate to secure his Pennsylvania driver's license. His video business2 considerations were subsequently dismissed and he advised the Agency of his decision by letter to his caseworker. Ms. Carolyn Olsen, Agency Representative, testified that one member of every MAPP team always asks a general, catchall question of every [foster care parent] applicant: "Is there anything else we need to know [about you], please tell us, [because] we will probably find out?" Ms. Olsen's candor and purpose comes into question on this point. She was not present during the Alezras-Thibodeau private conversation. Ms. Olsen does not know the identity of the team member who would have asked her catchall question nor does she know of a rule, guideline, or checklist requiring that specific question to be asked of every foster care license applicant, and there was no corroboration of her testimony. The Agency presented no evidence in support of its allegation that during the application process, its failure to inquire and Mr. Thibodeau's failure to disclose activities 20 years earlier in his life resulted from negligence or from the malicious intent of Mr. Thibodeau, and materially affect the health and safety of the minor children in his foster care. The Agency has failed to establish that Mr. Thibodeau left Washington with an unrelated minor child without parental consent and obtained false identification for the child. While it is true that Mr. Thibodeau "left Washington with an unrelated minor child," the Agency produced no evidence that his leaving was "without [minor child's] parental consent." Agency's investigators were unable to make contact with either the child or his mother. No investigation was made of the State of Washington's Motor Vehicle Department. No contact was made with the Pennsylvania authorities. Assuming argunendo, the Agency intended upon establishing this element by "an admission by Mr. Thibodeau"; they presented no evidence Mr. Thibodeau, in fact, uttered words to the effect of or acknowledged the comment "without parental consent." The undisputed evidence is Mr. Thibodeau's testimony that the minor child's mother not only approved of the child leaving Washington with him, but she also visited them in Pennsylvania and had telephone conversations with her child during his stay there. On this issue the Agency failed to carry its burden by clear and convincing evidence. Mr. Thibodeau admitted his use of another's birth certificate to secure a Pennsylvania driver's license more than 20 years ago. Since that time, Mr. Thibodeau's conduct, foster care parenting skills, helping problem young boys, and good moral conduct has been, as testified by the several witnesses, exemplary.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services enter a final order reinstating to Stanley Thibodeau his foster care home license privilege. DONE AND ENTERED 21st day of March, 2001, in Tallahassee, Leon County, Florida. FRED L. BUCKINE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of March, 2001.
The Issue The issue to be resolved in this proceeding concerns whether Petitioners committed violations of Florida Statutes and Florida Administrative Code sufficient to justify revocation of Petitioners’ license to operate a foster care facility.
Findings Of Fact Petitioners’ foster home is a private agency foster home licensed by Respondent to provide substitute care for children in foster care. On or about August 24, 2000, a report was made to the Florida Abuse Registry indicating that a child, A.C., who suffers from Downs Syndrome and who resided in Petitioners’ care at the time, had suffered a burn mark that was three to four inches long. The burn reportedly appeared to be from an iron. Pursuant to this report, Respondent’s Child Protective Investigator commenced an investigation of the matter on August 24, 2000. During the course of the August 24, 2000, investigation, Respondent’s investigator observed the burn on A.C.’s arm. Testimony of the investigator establishes the presence of such a burn on A.C.’s arm at the time. That testimony is corroborated by photographs in Respondent’s Composite Exhibit No. 3 and fairly and accurately depicts A.C.’s burned arm as it appeared on August 24, 2001. Petitioner Carol Golden, when asked about the situation, stated that she was unaware of the burn on A.C.’s right arm until the matter was brought to her attention by the investigation which commenced on August 24, 2000, following the discovery of the child's injury by school personnel. Interviews with other children in the home revealed that another child was ironing clothes on the evening of August 23, 2000, and left the iron unattended momentarily, during which time A.C. burned his arm on the iron. Respondent’s investigator referred A.C. to the Child Protection Team for an examination of his injury. Subsequently, A.C. was removed from Petitioners’ foster home after the findings of the Child Protection Team revealed that the child’s injury was indicative of inadequate supervision. Respondent’s investigator concluded her investigation and closed the case, Abuse Report 2000-133049, with verified findings for lack of supervision and failure to seek medical attention for A.C. Subsequently, Petitioners’ foster care license was revoked because of the verified findings of neglect and inadequate supervision found in Abuse Report 2000-133049. Medical examination of A.C.’s injury, as it appeared on August 24, 2000, reveals that the injury was on the child’s right arm; was five by eight centimeters in size; and was a charred burn in the shape of an iron with the circles for the steam holes clearly visible. The burn was in such a place, and of such a size, that any caretaker responsible for the bathing and clothing of A.C. should have seen the injury. Attempts by Respondent’s employees to conduct an assessment of A.C. were not successful. He was friendly and interacted well; however, he only pointed to his injury and could not communicate how it happened.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record, and the testimony of the witnesses, it is, therefore, RECOMMENDED: That a Final Order be entered confirming the revocation of Petitioner’s foster license. DONE AND ENTERED this 9th day of January, 2002, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 9th day of January, 2002. COPIES FURNISHED: Charles Golden Carol Golden 7939 Denham Road Jacksonville, Florida 32208 Robin Whipple-Hunter, Esquire Department of Children and Family Services Post Office Box 2417 Jacksonville, Florida 32211 Peggy Sanford, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
