The Issue The issue in this case is whether Petitioners should be issued a family foster home license.
Findings Of Fact Based upon the testimony, exhibits, and stipulated facts in the Joint Stipulation, the following Findings of Fact are made: Parties and Process Petitioners, who are husband and wife, submitted an application for licensure as a family foster home. Although this was an application for initial licensure, Petitioners were previously licensed as a foster home from August 2013 to October 2019.1 The Department is the state agency responsible for licensing foster care parents and foster homes, pursuant to section 409.175, Florida Statutes, and Florida Administrative Code Chapter 65C-45. Petitioners voluntarily relinquished their foster home license on or about October 28, 2019, around the time two female foster children, S.W. and H.C.S., were removed from their care. It is unclear whether the children were removed because of an abuse investigation related to H.C.S., or whether they were removed because Petitioners closed their home to foster children. Regardless, Mrs. Gilio testified that they let their license lapse because they needed a break after fostering H.C.S. The Department administers foster care licensing by contracting with third-party private entities. In Circuit 13, where Petitioners are located, the Department contracted with Eckerd Community Alternatives, doing business as Eckerd Connects (Eckerd), to be the agency responsible for facilitating foster care licensing. Eckerd has subcontracted with Children's Home Network (CHN) to facilitate foster care licensing. 1 Petitioners had previously been denied a foster care license in 2009. At the time relevant to Petitioners, the Department used the "attestation" model of foster home licensing. In this model, a private licensing agency with whom the Department has contracted will conduct a home study on the foster home applicants and attest to the applicants' fitness to be licensed. The Department does not have the discretion to deny the license once the licensing agency has attested to the appropriateness of the applicants, except if they have been named as caregivers in three or more abuse reports within five years. If there are such abuse reports, the Department is required to review those reports and make a final decision regarding the application. There is no requirement that the reports result in a finding of actual abuse for them to be reviewed by the Department.2 Although it is unclear when Petitioners submitted their application for the foster care license in this case, sometime in late 2019, CHN conducted and compiled a Unified Home Study (home study), which included Petitioners' background screening; previous reports of abuse, abandonment, or neglect involving the applicants, and references from all adult children. The home study was reviewed at a meeting on December 19, 2019, by Eckerd, through the Committee. The Committee considered the application, home study, and licensing packet and heard from various agency staff. Petitioners were also allowed to voice comments and concerns at this meeting. Had the Committee approved the application, it would have been sent to the Department along with an attestation that stated the foster home meets all requirements for licensure and a foster home license is issued by the Department. However, the Committee unanimously voted not to recommend approval of a foster home license to Petitioners. 2 The categories of findings for an abuse report are "no indicator," "not substantiated," and "verified." "No indicator" means there was no credible evidence to support a determination of abuse. "Not substantiated" means there is evidence, but it does not meet the standard of being a preponderance to support that a specific harm is the result of abuse. "Verified" means that there is a preponderance of credible evidence which results in a determination that a specific harm was a result of abuse. Frank Prado, Suncoast Regional Managing Director for the Department, ultimately decided to deny Petitioners' application for a family foster home license due to their prior parenting experiences, the multiple abuse reports regarding their home, and the recommendation of the Committee. Mr. Prado expressed concern about the nature of the abuse reports and Petitioners' admission that they used corporal punishment on a child they adopted from the foster care system in the presence of other foster children. Petitioners' Parenting History Petitioners have seven children: one is the biological son of Mr. Gilio; another is the biological son of Mrs. Gilio; and five were adopted through the foster care system in Florida. Of these seven children, six are now adults. Three of the adopted children, Jay, Sean, and Jameson, are biological brothers who Petitioners adopted in 2001. Shawna, who was adopted around 2003, is the only adopted daughter. The Petitioners' one minor child, H.G., is a nine-year-old boy and the only child who resides in their home. H.G. suffers from oppositional defiance disorder. Petitioners admitted they adopted Shawna after there had been allegations of inappropriate behavior made against Jay, by a young girl who lived next door to Petitioners. Later, while they were living with Petitioners, Jay, Sean, and Jameson were arrested for sexually abusing Shawna at different times. As a result, one or more of the sons were court-ordered to not be around Shawna, and the other brothers were required to undergo treatment and never returned to Petitioners' home. During the hearing, both Petitioners seem to blame Shawna, who was nine years old when the sexual abuse by Jay in their home allegedly began, for disrupting their home. They accused her of being "not remorseful" and "highly sexualized." Regarding the abuse by Sean and Jameson, which occurred when Shawna was approximately 12 years old, Mr. Gilio stated Shawna thought it was okay to have sex with boys, and it was "hard to watch every minute of the day if they're, you know, having sex." When Shawna was about 19 years old, she filed a "Petition for Injunction for Protection Against Domestic Violence" against Mr. Gilio in circuit court. The Petition outlined allegations of past sexual comments and inappropriate disciplinary behavior from 2007 to 2012, while she lived with Petitioners. Mr. Gilio denied at the hearing having any knowledge about the Petition against him, but admitted he made comments about Shawna's breasts. As part of the application and home study process, the CHN collected references from Petitioners' former foster children and adult children. Shawna (Petitioners' only adopted daughter) gave them a negative reference and specifically stated she would not want female foster children to live with Petitioners. Reports of Abuse Petitioners were involved in 24 abuse reports during their time of licensure between 2013 and 2019. During the past five years, Petitioners were named as either alleged perpetrators or caregivers responsible in eight reports that were made to the Florida Child Abuse Hotline (Hotline). Of those eight reports, five of them named Mr. Gilio as the alleged perpetrator causing a physical injury, one report named Mr. Gilio as the caregiver responsible for a burn on a foster child, and one report named Mr. Gilio as an alleged perpetrator of sexual abuse against a foster child. Mrs. Gilio was named as an alleged perpetrator of asphyxiation as to a foster child. Seven of the reports in the last five years against Petitioners were closed with no indicators of abuse. One of the abuse reports was closed with a "not substantiated" finding of physical injury. In this report, Mr. Gilio was the alleged perpetrator and the victim was H.G., Petitioners' minor adopted son. Additionally, after Petitioners let their foster license lapse in October 2019, a subsequent report was made against Mr. Gilio for improper contact with a former foster daughter. This incident was discussed at the Committee meeting, but it was unclear if this allegation was ever investigated. Corporal Punishment According to the Department's rules, discussed below, foster parents are forbidden to engage in corporal punishments of any kind. In 2019, there were two reports alleging Mr. Gilio of causing physical injury by corporal punishment on H.G. At the time, there were other foster children in the household. Technically, Mr. Gilio was allowed to use corporal punishment on H.G. because he was no longer a foster child and had been adopted from foster care. If a parent uses corporal punishment on a child, there can be no findings of abuse unless the child suffered temporary or permanent disfigurement. However, foster care providers are not permitted to use corporal punishment. More than one witness at the hearing had concerns about the use of corporal punishment against H.G. because of his operational defiance disorder and because other foster children (who may have been victims of physical abuse) were in the household. Brendale Perkins, who is a foster parent herself and serves on the Hillsborough County Family Partnership Alliance, an organization that supports licensed foster parents, testified she witnessed Mr. Gilio treating a foster child in his care roughly. At the time, she was concerned because this was not the way children in foster care (who may have previously been victims of abuse) should be treated. She did not, however, report it to any authorities. The Department established through testimony that the policy against using corporal punishment is taught to all potential foster families. Mr. Gilio, however, denied ever being instructed not to use corporal punishment against foster children or while foster children were in the home. He also claimed that H.G.'s therapist had never recommended any specific punishment techniques. The undersigned finds Mr. Gilio's testimony not credible. Cooperation with Fostering Partners The Department established that decisions regarding foster children are made within a "system of care" which includes input from case managers, guardian ad litem (GAL), and support service providers. The relationship between Petitioners and others working as part of this system during the time of fostering was not ideal; it was described by witnesses as "tense" and "disgruntled." One witness, a supervisor at CHN, testified Mr. Gilio was not receptive or flexible when partnering with other agencies, and was not always open to providing information when questioned. As an example, Petitioners fired a therapist without consulting with the CHN staff or the GAL for the child. At the final hearing, Mr. Gilio continued to claim he did nothing wrong by not consulting with others in the system regarding this decision. Kristin Edwardson, a child protection investigator for the Hillsborough County Sheriff's Office, was tasked with investigating the reports of abuse and neglect against Petitioners that had been reported to the Hotline. She testified she was concerned with the level of cooperation they provided her and other investigators. Although they ultimately would cooperate, Petitioners made it difficult for the investigators and would often "push back" and make the situation more stressful. She described Mr. Gilio as being disrespectful, belittling, and dismissive of her. Licensing Review Committee On December 19, 2020, the Committee, made up of eight individuals, was convened to review Petitioners' application for a foster home license. When determining whether a family should receive a foster home license, the Committee is to evaluate the applicants' background, parenting experience, references from community partners, and the family's openness and willingness to partner. Sheila DelCastillo, a regional trainer with the GAL program, was a Committee member. She had prior knowledge of Petitioners from a report that a foster child's room in Petitioners' home smelled strongly of urine during a home visit and that GAL staff had found a prescription bottle beside the child’s bed that belonged to Mr. Gilio. With regards to Petitioners' application, she read the licensing review packet and home study that contained numerous abuse reports. Ms. DelCastillo was concerned about the 24 abuse reports Petitioners’ received during their time of licensure, the negative reference from Shawna, their use of corporal punishment on H.G., and Petitioners' downplaying of the events that led to multiple abuse reports. Michelle Costley, a licensing director with CHN in charge of level 2 traditional foster homes, also served on the Committee. Ms. Costley has 14 years of experience, with seven of those years spent in foster care licensing. As director of licensing, Ms. Costley was concerned about the number of abuse reports received regarding Petitioners; Mr. Gilio's inability to be open and flexible when working in partnership with other agencies; and the needs of Petitioners' child, H.G. She was also concerned about Petitioners' decision to fire a therapist of a foster child without consulting the GAL or the other individuals involved with that child. Regarding the alleged abuse, Ms. Costley was concerned that most of the reports regarding Petitioners involved allegations of physical abuse, inappropriate touch of a sexual nature, or sexual abuse, with most alleged victims being younger than eight years old. She explained that even though these reports could not be "verified," these types of allegations are harder to establish because testimony by children of that age often is unreliable and there usually must be evidence of physical injury, which no longer is present by the time the alleged abuse is investigated. Ms. Perkins also served on the Committee. Ms. Perkins served as a foster parent mentor, working with foster parents to help them build co- parenting strategies and navigate the system of care. She has been a licensed foster parent for 13 years and has adopted 11 children from foster care. As stated earlier, she was familiar with Petitioners from the Hillsborough County Family Partnership Alliance meetings. Ms. Perkins was concerned with the number of abuse reports with similar allegations, but different victims. She also discussed Petitioners' use of corporal punishment, noting that they could have been using verbal de-escalation methods instead of corporal punishment due to the traumatic histories of many foster care children. Ms. Edwardson also served on the Committee. In addition to her personal interactions with Petitioners, Ms. Edwardson was concerned about the totality of the information presented to the Committee regarding the abuse reports and Mr. Gilio's lack of cooperation. She noted that although they were not substantiated, the number and nature of the reports related to young children were of concern. Based on the Committee notes and transcript of the meeting, Petitioners were allowed to respond to the Committee's questions at the December 2019 meeting. They argued that none of the abuse reports were proven true and any injuries were not their fault. They seemed more concerned about who made the abuse reports and why the abuse reports were called in than whether the foster children were protected in their care. For example, although Mr. Gilio admitted to hitting H.G. with a stick twice as big as a pencil, he denied any bruising was caused by the stick. A report of a burn on another child was explained by Mr. Gilio as an accident that occurred while he was teaching her how to iron; he could not understand why this was reported as possible abuse. Ms. Gilio explained that H.C.S. was a very active child which resulted in her needing stitches and requiring restraint. After hearing from Petitioners, the Committee members discussed their concerns that Petitioners were not forthcoming about the various abuse incidents, and would not take responsibility for any of the injuries or issues raised by the abuse reports. All eight members voted to not move Petitioners' application forward.
Recommendation Based on the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Department of Children and Families denying a family foster home license to Petitioners, Mary and James Gilio. DONE AND ENTERED this 9th day of November, 2020, in Tallahassee, Leon County, Florida. S HETAL DESAI Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of November, 2020. COPIES FURNISHED: Anthony Duran, Esquire Tison Law Group 9312 North Armenia Avenue Tampa, Florida 33612 (eServed) Deanne Cherisse Fields, Esquire Department of Children and Families 9393 North Florida Avenue Tampa, Florida 33612 (eServed) Lacey Kantor, Esquire Department of Children and Families Building 2, Room 204Z 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed) Javier A. Enriquez, General Counsel Department of Children and Families Building 2, Room 204F 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed) Chad Poppell, Secretary Department of Children and Families Building 1, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed)
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 Petitioner Antoinette Scanziani's license as a family foster home should be renewed.
Findings Of Fact Based on the testimony and evidence received at the hearing, the following findings are made: Respondent is the state agency responsible for licensing and regulating family foster homes. Children's Home Society (CHS) is the contract agency in the Central Licensing Zone that directly supervises licenses in that area. Petitioner filed an application to renew her family foster home license on May 26, 2006, which was originally issued for one year in August 2005. Prior to the issuance of her family foster care license on August 19, 2005, Petitioner had completed, inter allia, 30 hours of Models Approach Partnership and Parenting (MAPP) training and signed a Foster Parent Agreement, prepared by CHS, which spells out the duties and obligations of a foster parent. Paragraph 12 of the Agreement specifically states that a foster parent will notify CHS immediately of any change of address. Under Respondent's rules, a family foster care license is not transferable, and a new sanitation inspection and recommendation must be completed before Respondent can issue a new license for the new address. The family foster care license was issued to Petitioner for 5831 Bent Pine Drive, Apartment 300, Orlando, Florida 32822. The first foster child was placed in Petitioner's care on September 1, 2005. In August 2005, Petitioner began a dispute with the rental management company who managed the apartment complex where she lived. This resulted in Petitioner giving the company 60 days' notice that she would not renew her lease after October 31, 2005. The rental company, mean while, would not accept her tender of rental payments for August and September 2005, and initiated eviction proceedings in County Court. Prior to the final hearing, a stipulation was signed by the parties and approved by the County Court. Petitioner moved out of her apartment on October 31, 2005. On November 1, 2005, Petitioner, along with one foster child, moved into a house located at 7741 Fort Sumter Drive, Orlando, Florida 32822. CHS was not notified of this change of address until November 11, 2005. The CHS Dependency Specialist worked diligently with Petitioner to obtain a license for her new residence. DCF issued a new family foster care license for 7741 Fort Sumter Drive, Orlando, Florida 32822 on December 20, 2005. Petitioner maintained an unlicensed foster home from the period of November 1, 2005, through December 20, 2005. Although the foster child residing with Petitioner was not removed from the home, Petitioner was reminded of the need to notify CHS prior to any moves in the future. On April 6, 2006, Petitioner notified CHS that she had moved from her Fort Sumter Drive, Orlando, residence to a residence in Poinciana, Florida (Osceola County) at the end of March 2006. It was subsequently determined that a Writ of Possession for the Orlando residence was issued by the Orange County Court on March 2, 2006. Petitioner testified at the hearing that she moved at the end of March 2006, because of poor maintenance and discriminatory and retaliatory conduct by the landlord. The foster child was not removed from the home and the CHS Dependency Specialist again worked diligently and patiently with Petitioner to obtain a license for her family foster care residence at 127 Conch Drive, Kissimmee, Florida 34759 (Poinciana). Due primarily to Petitioner's lack of cooperation, a completed health inspection of the home was not completed until August 4, 2006. During this time, Petitioner submitted her application for relicensure on May 26, 2006. On July 13, 2006, the CHS Dependency Specialist hand delivered a letter, dated July 11, 2006, to Petitioner reminding her that a face-to-face visit and a walk through of the home was required before recommendation could be given. Petitioner was given a check-list of 16 items which were due to be completed prior to July 16, 2006, or CHS could not recommend renewal of her foster care license. On July 18, 2006, CHS sent Petitioner a follow-up letter. Although another home inspection had taken place on July 17, 2006, it was not a satisfactory home health inspection. In addition, proof of completion of 12 hours of training had not been demonstrated and six other items on the check-list were, also, not completed. The deadline for compliance was extended to August 3, 2006, with a reminder that the existing license expired on August 19, 2006. CHS followed with reminder telephone calls on July 19 and 20, followed by another letter on July 25, 2006, that all remaining items must be completed by August 3, 2006. Petitioner demonstrated compliance with four of the items, but did not provide Radon Test results or proof that her 2A10BC fire extinguisher was tagged and inspected. On August 18, 2006, the foster child, living in Petitioner's home, was removed. On August 19, 2006, Petitioner's family foster care license expired by operation of law, without Petitioner having submitted a completed application package to CHS. On August 28, 2006, Respondent sent Petitioner a notice of intent to deny her application for relicensure. The reasons for the denial were outlined on the four-page letter. Petitioner objected to the notice and requested a formal hearing, and this proceeding followed. From the evidence, it is apparent that CHS worked diligently in helping Petitioner transfer her existing license two times, when Petitioner moved without notifying CHS before the move; and encouraged and worked with Petitioner to complete the application for renewal a month before the expiration of her license. However, due to Petitioner's procrastination and/or resistance, the completed documentation was not sent in to Respondent prior to the expiration of her prior license.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that: Petitioner, Antoinette Scanziani's, application for a renewal of her family foster home license be denied. DONE AND ENTERED this 11th day of May, 2007, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of May, 2007.
The Issue Whether Petitioner’s application for licensure as a family foster home should be granted.
Findings Of Fact Sometime around 2004, Petitioner held a license as a foster home in Florida. During the licensure period, Petitioner fostered X. B. and T. T. in her home where she resided with her three biological children. X. B. stayed in Petitioner's home for approximately three weeks to a month. Throughout X. B.'s stay, Petitioner failed to provide breakfast to X. B. prior to school. Petitioner's failure necessitated the case manager providing such breakfast to X. B. when she drove X. B. to school. Additionally, on several occasions the case manager saw evidence of roach infestation in the home. In particular, upon X. B.'s return to Petitioner's home from visiting X. B.'s siblings, the case manager found him in a roach-infested environment, with no running water in the home since the service had been turned off by the service provider for non-payment of the bill. The toilet bowl was filled with feces and urine and had feces on the lid. It was unsanitary and unusable. X. B. asked the case manager to take him to the local gas station so that X. B. could use the bathroom. Soon after, X. B. was removed from Petitioner's care due to unsanitary conditions and/or unsafe conditions in Petitioner's home. T. T. was a one-year-old child who was also placed in Petitioner's foster home during her earlier licensure period. Again, the case manager saw evidence of roach infestation in Petitioner's home. At first, the case manager only saw a couple of roaches in the home. However, the roach problem progressively grew to the point that during one of the case manager's visits the wall behind the baby's crib looked like it was moving because there were so many roaches on it. Soon after, the case manager removed T. T. to another foster home. When they arrived at the new home, a roach crawled out of T. T.'s diaper bag. Upon inspection of the bag, the case manager discovered many dead roaches in the bag. More importantly, half of a dead roach was discovered in the baby bottle of milk that T. T. was drinking while being moved to T. T.'s new foster home. Clearly, the condition of Petitioner's foster home was neither sanitary nor safe. Petitioner's care of both these children resulted in verified abuse reports in Florida's abuse registry for conditions hazardous to the health of children. Petitioner's initial foster home license either lapsed or was not renewed. Since 2004, Petitioner has not been financially stable. In fact, she often asked her neighbors for money to pay her utility bills or buy gas for her car. Additionally, Petitioner lost different homes to foreclosure in 2006 and 2007. Since 2009, she and her children have moved to a different home an average of once a year. To her credit, Petitioner attended college and obtained her doctorate in Theology and Philosophy. However, her history has not demonstrated either household stability or financial ability in her life. In 2011, Petitioner applied for licensure as a family foster home. She successfully completed the Model Approach to Partnership in Parenting (MAPP) training program on September 20, 2011. In June 2012, Trauma Therapist for Children’s Homes Society, Katie Klutz, began the required home study of Petitioner. During the home study, Petitioner and her three biological children were living in a three bedroom home. Petitioner moved her bedroom furniture into the living room in order to make room for potential foster children. The bedroom space was separated from the living room by "curtains" that afforded no significant privacy for those living in the home. Clearly, Petitioner's home did not provide sufficient space to foster an additional child in the home. Petitioner has since moved to a larger home that was not the subject of the home study for this license. However, given Petitioner's past household instability, the very limited evidence regarding this new home does not support a finding that Petitioner's current home offers sufficient space to provide for the privacy and well-being of a foster child. More importantly, Petitioner has not worked since having an accident on the job in May 2010. A neighbor also provided a written reference in which she praised Petitioner’s spirit but stated that it is “a real struggle” for Petitioner to maintain her home and that “she will definitely need additional support in this area.” Notably, it was unclear how Petitioner was currently supporting her household. She has no employment. Petitioner claimed that she received money from a church or charitable organization that she founded. However, there was no evidence that such limited income, if any, was sufficient to support her family and/or provide financially stable conditions to Petitioner and her family. Moreover, Petitioner's bank records reflect that in June 2012, she made deposits of $167.53 and debited the account $266.07. Her ending balance in June was $18.81. At hearing, other than child support and food stamps, Petitioner offered no evidence of additional finances or income that is attributable to her. Given these facts, Petitioner has failed to demonstrate home safety, household stability or financial ability sufficient to entitle her to be licensed as a foster home. Therefore, Petitioner's application for such licensure should be denied.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner's application for licensure as a foster home should be denied. DONE AND ENTERED this 28th day of March, 2013, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of March, 2013. COPIES FURNISHED: Paul A. Rowell, Esquire Department of Children and Families 2383 Phillips Road Tallahassee, Florida 32308 Shakinah Glory 4768 Woodville Highway Apartment 428 Tallahassee, Florida 32305 M. Burnette Coats, Esquire Department of Children and Families 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399 Gregory Venz, Agency Clerk Department of Children and Families Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Marion Drew Parker, General Counsel Department of Children and Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 David Wilkins, Secretary Department of Children and Families Building 1, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether Petitioner's application for re-licensure as a family foster home should be approved or denied.
Findings Of Fact Petitioner, Lorraine Arnold, has operated a foster home since 1995 at her current place of residence. Petitioner applied for and was granted a family foster home license in January 1995. Petitioner was approved for placement of up to two children between the ages of 5 and 10 years. Foster home licenses are valid for one year and must be renewed annually. Petitioner's license was renewed annually thereafter. On December 15, 2000, Petitioner applied to renew her foster home license. Respondent denied Petitioner's application for renewal on March 9, 2001. During the relevant time-period in 2000, Petitioner was entrusted with responsibility for several children, including two teenage foster children, L. C. and J. B. In late August 2000, Respondent's case worker approached Petitioner with the request to accept into her home L. C., a 17-year-old female. Petitioner was told that L. C. was severely emotionally disturbed (SED), had violent behavior problems and was taking psychotropic medication. Because of L. C.'s history of behavioral problems, including incidents of violence, Respondent offered to contract with a private company to provide Certified Nursing Assistant (CNA) services to supplement the care given to L. C. Contract CNAs were to be present with L. C. around the clock, in order to provide Petitioner and her family some semblance of protection in the event of a violent outburst by L. C. This case worker assured her that under the watchful eye of the CNAs, L. C. would do fine. Petitioner was provided with additional monetary inducements by Respondent in order to persuade Petitioner to take in L. C. Upon placement, L. C.'s "Blue Book" was not provided to Petitioner. The "Blue Book" contained critical medical and social information about L. C. In addition, L. C. was not under the care of any local healthcare professional at the time of placement. Although Petitioner is a licensed pharmacist in Florida, she has received no special training in dealing with SED children. No specialized training of any kind was provided by Respondent during the two months that L. C. lived in Petitioner's home. Respondent was aware that L. C.'s needs required that she be placed in a living situation where she could receive proper therapy for her special needs, but none was provided. Respondent's conduct in the placement of L. C. in Petitioner's home violated its own guidelines and demonstrated very poor judgment on its part. The presence of contract CNAs was not intended to, nor did it in fact, relieve Petitioner of her responsibility to supervise foster children in her care. However, Petitioner was not instructed by Respondent that the teenage children in her care were not permitted to be alone or leave with the CNA, if the CNA offered to take them out for a supervised activity. In August of 2000, Petitioner gave L. C. and J. B., both minor girls, permission to go with the CNA, then on duty, to the home of L. C.'s aunt. While at the home of L. C.'s aunt, J. B., then fourteen years old, slipped out of the house and smoked marijuana. When J. B.'s case worker learned of the incident, she had J. B. tested for drug usage; J. B. tested positive for marijuana. Petitioner had L. C. tested and her test results were negative. Carla Washington, case worker for both L. C. and J. B., had previously informed Petitioner that L. C. was not to have contact with family members that was not supervised by Respondent. Petitioner misunderstood the instructions, and believed that L. C. was only restricted from having contact with her mother. Petitioner was not negligent in this incident, and J. B.'s misconduct could not have reasonably been foreseen. Less than a month before the incident in which J. B. smoked marijuana at L. C.'s aunt's house, there were two other incidents involving J. B. and L. C., with results detrimental to the foster children. On one occasion, Petitioner gave permission for the CNA on duty to take L. C. and another foster child out to the movies. Because of a family emergency, Petitioner left Orlando and drove to Tallahassee, leaving her adult daughter in charge of the household. The CNA took the two foster children to her residence, changed into "hoochie" clothes, went to a bar during which L. C. visited with her mother and witnessed a shooting. After the incident, the case worker spoke to Petitioner and reminded her that L. C. was not to have unsupervised contact with her mother. Petitioner complied with these instructions. No evidence was presented concerning the disposition of the CNA that perpetrated this outrageous conduct. Petitioner was not negligent in giving permission for the girls to go to the movies, and the CNA's conduct could not have been foreseen. On September 14, 2000, Petitioner was placed in a position of duress in regard to L. C. She had not received L. C.'s Blue Book, which contained all of her medical records and her Medicaid number, and L. C. was out of all of her psychotropic medications. Petitioner tried several times to find a psychiatrist who would treat L. C. She spent 2 days looking through the telephone book and calling every psychiatrist until she found one who would accept Medicaid. She also went to the Nemours Children's Clinic and spent most of the day waiting at the Sanford Health Department, where Petitioner finally discovered that L. C. could only be seen by a doctor in the Oviedo area. When the doctor in Oviedo was contacted an appointment was made for the following day at 2:00 p.m. Petitioner contacted the caseworker for assistance in getting L. C. to the doctor's appointment because Petitioner was unable to remain out of work for a third day. The case worker informed Petitioner that she was unable to assist, and if Petitioner did not see that the child got to the doctor any repercussions would be Petitioner's responsibility. Petitioner was given no choice but to rely on a family member to assist in making sure that L. C. received the required medical attention. Petitioner asked a family member to take L. C. and J. B. to the doctor's appointment. He left them in the reception area for 20 minutes to run an errand while L. C. waited to see the doctor. Before he returned, L. C. and J. B. misbehaved at the doctor's office. The adult family member did not have reason to believe that these two teenagers could not be left alone at a doctor's office for 20 minutes. He expected that the teenagers would behave themselves for such a short period of time. During the course of her testimony in this matter, J. B. testified that she had sexual relations in the house while living with Petitioner. This testimony is neither credible nor relevant to this proceeding. Petitioner has not committed an intentional or negligent act which materially affected the health or safety of L. C. or J. B. while in her care. Several years in the past, Petitioner used corporal punishment on a much younger, uncontrollable foster child on more than one occasion. Upon receiving counseling from her case worker, Petitioner agreed to corrective action to address her improper use of corporal punishment of foster children entrusted to her care. Over time, Petitioner has displayed extreme care and concern for the children placed in her care. She has taken the issues of supervision seriously. Petitioner has demonstrated that as a foster mother she has given the children placed in her care an abundance of love. She has taught them how to care for and love themselves. She has been there to listen to their needs and their desires, and she cares about them. She has taught them that self- control, self-discipline and hard work will lead to success in life.
Recommendation Therefore, it is RECOMMENDED that the Secretary grant Petitioner's application for renewal of her family foster home license. DONE AND ENTERED this 23rd day of October, 2001, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of October, 2001. COPIES FURNISHED: Lorraine Arnold 3997 Biscayne Drive Winter Springs, Florida 32708 Craig A. McCarthy, Esquire Department of Children and Family Services 400 West Robinson Street Suite S-1106 Orlando, Florida 32801 Virginia A. Daire, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue 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 The issue presented is whether the Respondent committed the offenses set forth in the Administrative Complaint filed in this case and, if so, what disciplinary action should be taken.
Findings Of Fact At all times material hereto, Respondent, Kathy Bergerson, held a family foster home license for her residence issued by the Children, Youth and Family Program Office of Petitioner, Department of Health and Rehabilitative Services. As it relates to the license at issue, Respondent was first licensed by Petitioner in April 1987. In her home, Respondent was responsible for several developmentally disabled children and a developmentally disabled adult. Respondent's mother lives in an apartment adjoining the home and has access to the residence. Respondent's mother is a registered nurse. During the period since the licensure, the several incidents described in the following paragraphs occurred. Because the incidents involved Respondent or her home and the incidents were unexplained, Petitioner became concerned for the safety of the children in Respondent's care. The incidents at issue are as follows: Sometime during 1987 while one of the children was hospitalized, the child was discovered in what appeared to be a drug-induced sleep during a visit by Respondent. No harm to the child was demonstrated from the incident, and Respondent relayed the incident to Petitioner during her relicensure interview in 1988. Also, sometime in 1987, a housekeeper, provided by Metro-Dade County, allegedly assaulted Respondent's mother while attempting to steal toys and bed sheets from the home. No harm to the children was shown from the incident, and Respondent reported the incident to Petitioner during her relicensure interview in 1988. Then, early in 1988, Respondent received a delivery of medication which did not contain full amounts of the prescribed contents. The medication was delivered by a representative sent by Petitioner. No harm to the children was proven from the incident, and Respondent reported the incident to Petitioner. In July 1988, a report of the sexual abuse of the developmentally disabled adult living with Respondent was filed with Petitioner. The final disposition of the incident was not shown; however, neither Respondent nor Respondent's mother were classified as perpetrators of the alleged abuse. In September 1988, a child under Respondent's care, and custody was hospitalized after she became, untypically, lethargic and unresponsive when Respondent gave the child a dose of Panadol for her fever. Fearing that the child was allergic to the medicine, Respondent brought the bottle from which she had administered the medicine with them to the hospital, and reported her fear to the medical personnel at the hospital and to Petitioner. Although Petitioner asserted that the bottle of medicine was tested for its contents, the proof failed to demonstrate that a test was performed or the results of any such test. Respondent kept the medication for the children in a locked cabinet in her kitchen. Included in the drugs in the cabinet were Panadol, Valium and Benedryl. In addition to Respondent, Respondent's mother and nurses provided by Petitioner, on occasion, had access to the cabinet. While Petitioner contended that the Panadol given to the child was adulterated with Valium and Benedryl, the proof failed to indicate that the Panadol was altered, or that the child suffered from the ingestion of the medication. Petitioner asserted that it was unusual for a foster parent, such as Respondent, to have as many unexplained events reported within an almost two- year period. Therefore, based on the above incidents and what Petitioner perceived to be a pattern of unexplained incidents involving Respondent and her home, and after ordering a psychological evaluation of Respondent and her mother, Petitioner issued its notice of intent to revoke Respondent's family foster home license on February 14, 1989. Petitioner alleged that Respondent was not capable of handling the stresses associated with maintaining a family foster home. At the hearing Respondent demonstrated a tendency to become overly excited; however, the proof failed to demonstrate that she is unable to handle the stresses of her life. Respondent is a caring person who has an obvious interest and concern for the children in her charge. She expressed deep concern over each of the incidents recited above and, in fact, reported the majority of the incidents to Petitioner. Although the incidents described above generate concern, was not shown that the safety of the clients was endangered by the incidents.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: Recommended that the Department of Health and Rehabilitative Services issue a Final Order withdrawing its intent to revoke Respondent's family foster home license. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 15th day of December 1989. JANE C. HAYMAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Park way Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of December 1989.
The Issue Whether Petitioners, K.W. and L.A.W., should be granted a license to be foster parents.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of facts are made: Petitioners are a married couple who applied to Respondent for a foster home license. Petitioners have three children. The background investigation conducted by Respondent revealed reports of incidents of domestic violence and battery involving Petitioners and their children. On October 4, 1999, police officers responded to Petitioners' home after receiving a report of domestic violence. The officer's investigation revealed that one of the Petitioners, L.A.W., had been battered by her son. The child had been involved in pastoral counseling for his aggressive behavior. Petitioner, K.W., advised the police officer that the child, W.A.W., would be moving from the residence because of his continuing inappropriate behavior. On April 7, 2002, another incident of domestic violence was reported and investigated. On this occasion, the two younger children of Petitioners were involved in an altercation that resulted in Petitioner, K.W., being rendered unconscious by a blow to the head with an object delivered by one of the children, C.W. C.W. was arrested for aggravated battery. In February 2003, Petitioners desired to keep a six- month-old, unrelated child in their home. The child was placed in the home contingent on C.W.'s moving from the home and not residing in the home. Petitioners agreed to this contingency of placement, and the child was placed in Petitioners' home. On November 5, 2003, Petitioners applied to be licensed as foster parents. Ten days after Petitioners applied to be licensed, another incident of domestic violence occurred. On November 15, 2003, two of Petitioners' adult children got into a fistfight which resulted in one having a broken nose. As a result, W.A.W. was arrested. At the time of the altercation, W.A.W., 21 years old and the oldest child who had moved out at an earlier time as a result of his behavior, was residing at Petitioners' residence. Although the police report indicates that the incident occurred at Petitioners' residence, the testimony indicated that it occurred "down the street." All three of Petitioners' children continue to reside locally and frequent their parents' home. Petitioners are highly recommended by a representative of The Children's Home Society, a Guardian ad Litem, and their pastor. Respondent has the responsibility of placing foster children in a safe setting. But for the behavior of their children, Petitioners would qualify for licensure. As long as Petitioners' children frequent Petitioners' residence, any child placed in that residence is at risk. As a result, Petitioners are not qualified to be licensed as foster parents.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services enter a final order denying the foster care license application of Petitioners. DONE AND ENTERED this 12th day of January, 2005, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of January, 2005. COPIES FURNISHED: Thomas J. Thompson, Esquire Thomas Thompson, P.A. 100 South Washington Avenue Titusville, Florida 32780 Richard Cato, Esquire Department of children and Family Services 400 West Robinson Street, Suite S-1106 Orlando, Florida 32801-1782 Paul Flounlacker, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
The Issue In a letter dated February 17, 1998, the Department of Children and Family Services(DCFS) notified Lois Kelly that DCFS intended to revoke her foster home license for five specified reasons. Later, during the course of pre-hearing discovery, DCFS narrowed the issues to three violations: A substitute care parent must not use corporal punishment of any kind. 65C-13.010(l)(b)5f, Florida Administrative Code (FAC). You have used corporal punishment to discipline the children in your care. More specifically, the children report that you routinely slapped them and hit them with a "switch." . . . The home and premises must be free from objects, materials, and conditions which constitute a danger to children. 65C-13.011(12)(b), FAC. The yard area was full of trash, the boys' room smelled of urine and there were roaches crawling around at the time the licensing representative visited the home. . . . A substitute care parent must not punish children for bed-wetting for errors during the toilet training process. 65C-13.010(l)(b)5i, FAC. Children in your care were punished by corporal punishment for bed-wetting. The issues in this proceeding are whether those violations occurred and if so, whether they constitute bases for license revocation.
Findings Of Fact Respondent, Lois Kelly, was licensed as a foster home by the Department of Health and Rehabilitation Services (HRS) on September 29, 1995. She was a working, single woman who had raised one child, now an adult son, who lives on his own. HRS was the predecessor to the agency now known as the Department of Children and Family Services, the Petitioner in this proceeding. Ms. Kelly's foster home license was for three children; the maximum number of children under any foster home license was five. However, at various times during the two years that she was licensed, Ms. Kelly cared for four, six, and (for one weekend) eight children placed with her by HRS foster care workers. Juanita Warren White was assigned to be Ms. Kelly's foster home licensing representative in 1996. Ms. White visited the Kelly home three times: July 11, 1996; August 1, 1996; and September 24, 1996. On her first visit Ms. White noted wet carpet and a strong smell of urine. There was wet carpet hanging outside. The toilet in the children's bathroom had overflowed after one of the boys hid a toy in the commode. In addition, there was an appearance of general disarray, including garbage in the garage where the children played. By the September visit, Ms. Kelly had corrected the series of items noted as problems by Ms. White. Ms. Kelly was relicensed for another year. Karen Norton was assigned as Ms. Kelly's licensing representative in 1997. After one unsuccessful attempt when Ms. Kelly was not home, Ms. Norton's first home visit was April 11, 1997. On this date, there were four foster children residing with Ms. Kelly: J. and B., pre-school toddlers; K., 8 years old; and H.J., 9 years old. The bedroom shared by the two young boys was cluttered with toys and clothes; a roach was crawling up the wall. In the bedroom shared by the older boys, there was a strong odor of urine. One of the boys was a bed-wetter. Ms. Norton also observed a bleach bottle stored on the kitchen floor within reach of the children. She found the garage had a seating area with a sofa and TV set that was turned on. The garage included tools and yard equipment. She observed trash and an old grill/smoker in the backyard and a discarded refrigerator turned to the wall with a make-shift basketball hoop set up in the refrigerator coils. After completing her inspection, Ms. Norton advised Ms. Kelly that the trash would have to be picked up, the bleach stored properly, the refrigerator and cooker disposed of, the urine cleaned up, and a bug extermination scheduled. Ms. Norton returned on May 6, 1997, for an unscheduled visit. The trash was gone, but the refrigerator remained and Ms. Kelly said it would be removed within a week. There was no urine odor in the boys' bedroom and Ms. Kelly told her that she required the bed-wetting child to clean his bed with bleach water. Ms. Norton explained that it was inappropriate and dangerous to have a child use bleach for cleaning. Ms. Norton was concerned about hazardous conditions in the Kelly home, including the obvious use of the garage as a play-room. Some time between May and September 1997, HRS learned that Ms. Kelly was using corporal punishment on her foster children. The children were removed from her home and after being told that she would be charged with child abuse, Ms. Kelly agreed to give up her license; no children have been placed in her home since September 1997. At hearing, Ms. Kelly confirmed that she would not have relinquished her license without the threat and that she still wants to be a foster home parent. The agency has proceeded with a license revocation and provided notice and opportunity for a hearing in its letter dated February 17, 1998. Two children, former foster child residents in Ms. Kelly's home, testified at hearing: L.D.-age 11; and C.W.-age The testimony of both children was credible regarding discipline used by Ms. Kelly. Ms. Kelly disciplined two pre-school aged boys by switching them on their legs or hands with a switch from the yard. The 3 year-old cried; the 5-year old did not cry. Punishment occurred when the boys broke something belonging to Ms. Kelly. On another occasion Ms. Kelly came home and found that L.D. had been tussling with a 5-year old boy and had ripped the boy's underwear, which L.D. claimed was his. Ms. Kelly took L.D. into the hall outside the bedroom and swatted him on his arms, legs and waist with her open hand. She continued hitting him when he was on the floor. He was afraid and cried. Ms. Kelly also spanked K.H. on at least two occasions for wetting his bed. She used her hand to hit him. She also continued to require him to clean up the urine with a rag and bleach. Ms. Kelly was trained and given hand-outs regarding appropriate discipline prior to her licensure as a foster home. She understood that she was never permitted to strike the children or use any form of corporal punishment. Corporal punishment is harmful to foster children even when it is not excessive, as many foster children have come from abusive environments.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: that the agency issue its final order revoking the foster home license of Lois Kelly. DONE AND ENTERED this 25th day of February, 1999, in Tallahassee, Leon County, Florida. MARY 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 25th day of February, 1999. COPIES FURNISHED: Timothy Straus, Esquire Moyer and Straus 2627 West State Road 434 Longwood, Florida 32779 Carmen Muniz Sierra, Esquire Department of Children and Family Services 400 West Robinson Street Orlando, Florida 32801 Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John S. Slye, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue to be resolved in this proceeding is whether Petitioner, a foster home operator, committed violations of the Florida Statutes and the Florida Administrative Code, as alleged by Respondent, sufficient to justify Respondent's refusal to renew Petitioner's license.
Findings Of Fact On December 20, 1999, Petitioner applied for renewal of her license to operate a foster care home. The license was due to expire on February 15, 2000. Respondent's investigation of the application was eventually concluded on June 15, 2000. By letter dated August 10, 2000, Petitioner was notified of Respondent's decision that, as a consequence of the Florida abuse report finding that Petitioner had failed to provide adequate food and medical care to children in her care, her home would not be re-licensed as a foster home. At final hearing, Petitioner's testimony established that she did not intend to again operate a foster home. Her desire in requesting a hearing was simply "to clear her good name" from the allegations contained in Florida abuse report number 1999-124723. She further admitted that her personal physician opposed renewal of her license due to Petitioner's heart condition. Petitioner offered copies of medical reports from a medical practitioner as proof that allegations of the abuse report were incorrect. Specifically, it is found that the medical records proffered at best show only that the children were taken to a doctor on specific occasions and does little to rebut the abuse report’s allegations of inadequate food and medical care. Further, testimony of Respondent’s employees at final hearing established that Petitioner’s son, a convicted felon without exemption status, had been residing in the home. Pursuant to applicable statutes, such a resident in the home also prevents re-licensure.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, it is recommended that a final order be entered confirming the denial of Petitioner’s license to operate a foster home. DONE AND ENTERED this 14th day of November, 2001, 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 14th day of November, 2001. COPIES FURNISHED: Ralph McMurphy, Esquire Department of Children and Family Services 1601 West Gulf Atlantic Highway Wildwood, Florida 34785-8158 Stephanie Reeves 1707 Birchwood Circle Apartment 1 Leesburg, Florida 34748 Virginia A. Daire, 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
