The Issue The issue in the case is whether the registration of Thorpe Lindsay's family day care home should be revoked.
Findings Of Fact The Department is responsible for the registration and supervision of family day care homes, pursuant to Section 402.313, Florida Statutes (2007). Respondent, Thorpe Lindsey, has been registered to operate a family day care home at 2306 Savoy Drive, Orlando, Florida, since December 18, 2006. 3. On June 27, 2007; July 13, 2007; and July 26, 2007, Respondent allowed an unscreened and unapproved substitute, Sheneka Henderson, to be alone with and supervise children in the family day care home. Respondent was not present in the home on at least two of these occasions. On all three occasions, Respondent appeared after the Department's protective investigator or child care licensing supervisor noted his absence and the presence of Ms. Henderson as the caregiver.2 On July 13, 2007, Respondent was cautioned in person about the repercussions of allowing unscreened personnel to supervise children. On September 14, 2007, the Department issued an Administrative Complaint against Respondent, seeking to impose a civil penalty in the amount of $500.00 for the three instances of using an unscreened and unapproved substitute caregiver. Respondent refused to accept service of the Department's certified letter. The copy of the Administrative Complaint sent by regular U.S. Mail was not returned to the Department, and Respondent never sought a hearing or otherwise contested the allegations of the Administrative Complaint. Aside from the problem of unscreened personnel, Respondent also had a recurring problem of caring for a number of children greatly in excess of the ratios allowed by statute in his family day care home. Under any circumstances, a family day care home may provide care for no more than ten children. See § 402.302(7), Florida Statutes (2007). On June 27, 2007, the Department sent a certified letter to Respondent noting that on the previous day, the Department had received a report that Respondent was caring for between 30 and 40 children. The letter cautioned Respondent that he must immediately reduce enrollment and submit a written plan to the Department by July 10, 2007, identifying the names and birth dates of the children for whom Respondent would continue to provide care, as well as the names and birth dates of the children whom Respondent eliminated from his roster. Respondent never provided the required documentation to the Department. The Early Learning Coalition of Orange County is a public/private partnership established to ensure that children enter school ready to learn. In coordination with the Department, the Early Learning Coalition provides health and safety inspections for anyone receiving school readiness funding. Because Respondent received such funding, Eric Allen, an inspector for the Early Learning Coalition, made regular visits to the family day care home. On July 6, 2007, Mr. Allen made a routine visit to Respondent's home and found several violations, including a ratio violation, the presence of unscreened volunteers caring for children, chemicals under kitchen and bathroom sinks without door locks on the cabinets, and uncapped electrical outlets. On July 9, 2007, the Early Learning Coalition sent a letter to Respondent outlining the violations and requiring their correction pending a re-inspection of the family day care home. On July 20, 2007, Mr. Allen conducted a routine visit to Respondent's home and again found the home to be out of ratio. On July 26, 2007, the Early Learning Coalition sent a letter, signed by Donna J. Williams, director of quality services, to Respondent that stated the following, in relevant part: This letter will clear up any confusion as to the number of children you are legally allowed to care for. As a family home provider, six (6) is the maximum number of children under the age of five you are allowed to have in care at one time. If an infant is present, the maximum number of children allowable at one time is five (5). I am enclosing the state ratio chart so you may be clear on the number and age of children you are legally allowed to have in your care at one time. Since this falls under our Non-compliance Policy, you are hereby on notice that if there is any other incident where you are found in non-compliance with any Level I violation, the parents of school readiness funded children will be contacted and given the opportunity to transfer as you will be ineligible to receive school readiness funds for a period of one year. On September 7, 2007, at approximately 3:45 p.m., Mr. Allen again visited Respondent's registered family day care home. Mr. Allen found a note on the front door stating, "We are on a field trip," with contact information for parents at the bottom. Mr. Allen noted that the contact numbers on the note did not match the contact information on file at the Early Learning Coalition. He also noted that all of the windows of the house were covered with blinds or cardboard. Mr. Allen testified that he had made several prior attempts to visit the home in recent days, but that on each occasion was met with a note claiming the children were out on a "field trip." He was about to walk away from the house when he heard a baby crying inside. He rang the doorbell and knocked on the door but received no response. He called out to whomever was inside the house, "This is Eric from the Early Learning Coalition. I can hear a baby crying. You need to open the door or you are violating your provider agreement and you are in danger of being de-funded." There was still no response from inside the house. Mr. Allen walked around to the back door. He knocked on the window of the rear childcare area and repeated his warning. After several minutes, a car pulled up to the home. A woman got out of the car and approached the front door. Mr. Allen asked if she was there to pick up a child, and she answered affirmatively. She rang the doorbell but no one answered. Mr. Allen offered to call the contact number, but the woman just turned and drove away. Mr. Allen called the Early Learning Coalition's office and asked the administrative assistant to verify and call the contact number for Respondent's home. When the assistant called the number, a woman who identified herself as Respondent's sister answered and stated that the children were out on a field trip. Mr. Allen then called the contact number and asked Respondent's sister where the children were. She stated they were on a field trip to Pizza Hut. Mr. Allen told her he could hear a baby crying inside and that if the door was not opened he would call the police. Respondent's sister hung up the phone. Just as Mr. Allen's phone conversation concluded, approximately 25 minutes after he first arrived at the house, the woman in the car returned. As the woman walked up to the front door, the door was opened by Toshiba Lindsey, another of Respondent's sisters, who was holding a baby she said was her son. Mr. Allen showed Ms. Lindsey his identification and asked her why he had been left outside trying to get someone to open the door for nearly a half hour. Ms. Lindsey claimed to have been sleeping and not to have heard the knocking. Mr. Allen entered the home and started down the hallway, but Ms. Lindsey forbade him from entering one of the rooms. Mr. Allen could hear a child crying inside the room. He demanded to know whose child was behind the door. Ms. Lindsey denied there was anyone in the room. For several minutes, Mr. Allen attempted to convince Ms. Lindsey to open the door, but she continued to say that she could not open it. Mr. Allen told her to call Respondent, who was not in the house. Mr. Allen spoke to Respondent and told him that he would call the police if Ms. Lindsey did not open the door. Respondent hung up on him. Mr. Allen called 911 and requested an officer to come to the house and open the door. A moment later, the door to the room opened and another woman, Sheneka Henderson, emerged with 13 children. Neither Ms. Lindsey nor Ms. Henderson had been background screened or trained to act as caregivers. Mr. Allen recorded the names and ages of the children, then left the home. Respondent never showed up at the house while Mr. Allen was there. On September 10, 2007, the Early Learning Coalition sent Respondent a letter notifying him that he would be ineligible to receive school readiness funds for a period of one year, based on Respondent's repeated violations of mandatory state ratio requirements.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services enter a final order revoking the registration of Thorpe Lindsey to operate a family day care home. DONE AND ENTERED this 10th day of April, 2008, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 10th day of April, 2008.
The Issue Whether Petitioner may be granted a family day care home registration/license.
Findings Of Fact Petitioner operated a licensed family day care home from 1992 until June 2002, when she ceased to operate a home. In late 2002 or early 2003, Petitioner applied to DCF for a new license. Petitioner's new application was denied solely because of information found during the background screening, including information from her prior licensure file. Glenda McDonald was Petitioner's day care supervisor during Petitioner's prior licensure. In that capacity, Ms. McDonald conducted regular inspections of Petitioner's day care home. On August 25, 1992, Ms. McDonald's superior sent Petitioner a letter stating that Petitioner was operating a day care facility in excess of its licensed capacity and requiring Petitioner to come into compliance by August 28, 1992. Petitioner credibly denied that she received this letter. The letter was not sent to Petitioner's address of record and no proof of the allegations in the letter were presented. During Petitioner's prior licensure, DCF generated four abuse/neglect reports related to Petitioner's day care home. None of these reports were written by Ms. McDonald, who was never a child protection investigator (CPI). Copies of these reports were included in Petitioner's old licensure file.1/ Abuse/neglect Report 1998-050246 relates to a child who wandered away from Petitioner's day care home on May 1, 1998. The report was verified for "inadequate supervision: neglect" against Petitioner. As a result of the events giving rise to the May 1, 1998 abuse/neglect report, Ms. McDonald cited Petitioner's day care home on June 4, 1998, with one count of "Class II non- compliance: lack of direct supervision," pursuant to Florida Administrative Code Rules 10M-12.020(5)(a) and 65C-22.001(5)(a). Since this exhibit was a carbon copy in Ms. McDonald's possession, it is inferred that Petitioner actually received a copy of this informal citation. Ms. McDonald also issued a warning letter to Petitioner on June 4, 1998, citing only Rule 10M-12.0202(5)(a), and saying that Petitioner could appeal after she received a subsequent fine letter for either $50.00 or $100.00. In connection with the May 1, 1998 incident, Ms. McDonald had interviewed Petitioner, who had made various admissions. After her investigation, Ms. McDonald was satisfied that a child entrusted to Petitioner's care had walked out of Petitioner's enclosed yard and further had walked beside a busy road, without Petitioner's knowledge, and that the child had been picked up by the police after nearly two hours' absence, near a busy intersection. In the course of Ms. McDonald's investigation, Petitioner had admitted her caretaker responsibility for the child but had denied that he was a paying day care client. At the hearing in the instant case, Petitioner maintained essentially the same position. Abuse/neglect Report 1999-105502 relates to allegations, arising on August 19, 1999, that Petitioner had locked day care children in a time-out room or "cubby" and that day care children had been beaten. No indicators were found by the CPI against Petitioner for corporal punishment. The report was eventually closed with "some indicators" against Petitioner as the caretaker responsible for confinement and bizarre punishment, constituting neglect. However, DCF did not classify or close this report at all until January 25, 2002. As a result, the report refers to "prior reports," but lists reports for both previous and subsequent years: 98-505246, 99-105502, 99-118736, 00-128236, and 02-006119. Because the classification of abuse/neglect report 99-105502 depended upon reports after its date of commencement, some of which cannot be assessed as to status,2/ and because no competent, credible evidence concerning the underlying August 19, 1999, event alleged in the report was presented in the instant hearing, report 1999-105502 is discounted in its entirety as evidence of any wrong-doing, abuse, or neglect by Petitioner.3/ Abuse/neglect Report 1999-118736 relates to allegations of bite marks found on a nine-month-old child in Petitioner's day care home on September 17, 1999. Petitioner was listed therein as a "significant other." The report was "closed with no on-going care needed." Abuse/neglect report 2000-128236 relates to bite marks found on one two-year-old child inflicted by another two-year old child, both of whom were in Petitioner's day care home on August 16, 2000. This report was classified only as "investigation complete," and further stated that Petitioner was the caretaker responsible. The report further noted that the CPI wanted DCF to consider "removing" Petitioner's license due to the number of abuse/neglect reports with "verified" allegations and some indicators. Yet as of the closure of this report, there appears to have been only the 1998 verified report. (See Findings of Fact 7 and 8). Due to all of the inconsistencies within the 1999 and 2000 reports, due to there being only one report (No. 98-050246) ever actually classified as "verified," and due to the legally indefinite nature of the classifications assigned by CPIs in 1999 and 2000, it is apparent that the CPIs who completed the 1999 and 2000 abuse/neglect reports had no clear understanding of the terms required by law for classifying them. Because of the vague classifications assigned to the 1999 and 2000 reports, it may be inferred that Petitioner was never provided a timely opportunity to contest them. (See also Finding of Fact 17.) Therefore, these reports cannot be called either "verified," "confirmed," "upheld," or "uncontested." (See Conclusion of Law 27). On November 24, 1999, Ms. McDonald wrote Petitioner to express DCF's concern, pursuant to Florida Administrative Code Rule 65C-22.001(5)(a), after the CPI's investigation and her own independent inspection arising from "the repeated abuse reports". Ms. McDonald's use of the plural for "abuse reports" is noted. However, her letter stated no "concern" other than the incident of September 17, 1999, on which investigation had been closed, naming Petitioner only as a "significant other." The letter was sent certified mail to inform Petitioner that the violation was being classified as a Class II violation with a $25.00 fine for each day of violation and she could appeal when she got a subsequent fine letter. No return of certified mail receipt was offered in evidence. Ms. McDonald testified in the instant case that she was contemporaneously aware of the bites on the nine-month-old who was in Petitioner's day care on September 17, 1999, and that she also was contemporaneously aware of another child who had been bitten while in Petitioner's day care. It is inferred from her testimony that Ms. McDonald was familiar, from her regular inspections, with the events surrounding the August 16, 2000, abuse/neglect report of a two-year-old child suffering bite marks from another two-year-old child, because Ms. McDonald further testified that it was upon the second biting incident that DCF began to seriously consider revoking Petitioner's first license. (See Findings of Fact 10-11). On or about December 11, 2000, a DCF attorney drafted an administrative complaint against Petitioner. The administrative complaint sought only to impose administrative fines for violations as follows: one 65C-20.009(3)(a) violation, Class I, inadequate supervision, with a fine of $100.00; one 65C-20.009(3)(a), Class II violation, inadequate supervision, with a fine of $50.00; and one 65C-20.009(3)(a) violation, Class II, inadequate supervision, with a fine of $50.00. The administrative complaint contained no prayer to revoke Petitioner's license. The charges contained therein apparently were solely the result of the abuse/neglect reports arising from incidents on May 1, 1998 (the wandering child incident); September 17, 1999, (the bites on the nine-month-old child); and August 16, 2000, (the bites on the two-year-old child). An administrative complaint is merely an allegation. Of itself, it proves none of the charges contained therein. Moreover, there is no clear evidence that Petitioner ever received the foregoing administrative complaint so as to have an opportunity to contest the charges. However, the administrative complaint suggests, contrary to some testimony, that Petitioner had not previously been fined for these dates. It also clearly demonstrates that, as of December 11, 2000, DCF did not view the wandering child or the two incidents of biting children biting each other as Code violations worthy of revoking Petitioner's license. Ms. McDonald testified that in 2002, as a result of the foregoing administrative complaint, she told Petitioner that DCF would not renew Petitioner's license when it came up for renewal, and that consequently, Petitioner agreed to retire and never reapply for a day care license, rather than suffer administrative prosecution. Petitioner credibly denied that such a scenario had ever occurred. Petitioner testified that she had never signed anything, did not know there were charges pending against her, and only "retired" in 2002 because she had been hospitalized and unable to work for a period of time. Her husband credibly corroborated her desire to retire after hospitalization. Because the 2000 administrative complaint was apparently never served on Petitioner; because of the greater weight of Petitioner's and her husband's combined testimony; because DCF seems to have repeatedly intended to assess different degrees of noncompliance and different amounts of fines for the same alleged events; because DCF introduced warnings and citations but no fine letters containing the opportunity to appeal/contest; and because it is not credible that someone licensed for 10 years would retire and guarantee never to reapply, only to avoid what, at worst, would be a $200 fine, Petitioner and her husband are found to be the more credible witnesses on why Petitioner surrendered her first license, and it is accordingly found that Petitioner surrendered her first license without coercion by DCF and without giving DCF any promise not to reapply. Petitioner is also found credible that she did not know there were any continuing problems as a result of any of the oral or written warnings she had received. Her testimony in this respect is understood to mean that she never received a notice permitting her to contest any of the four abuse/neglect reports discussed, supra., or any formal notices to pay fines.
Recommendation 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 granting Petitioner registration for licensing as a day care home, subject to her fulfilling all the other requirements for a new license applicant. DONE AND ENTERED this 7th day of June, 2004, in Tallahassee, Leon County, Florida. S ELLA JANE P. 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 7th day of June, 2004.
The Issue Whether Petitioner's June 1, 2007, application for registration as a family day care home, pursuant to Section 402.313, Florida Statutes, may be granted.
Findings Of Fact DCF's August 8, 2007, letter denied Petitioner’s June 1, 2007, application to register to operate a family day care home due to a verified abuse report of exploitation by Petitioner of her elderly mother; Petitioner's personal history of mental health issues; and a circuit court’s failure to approve Petitioner as an alternative long-term caretaker of her grandchildren in connection with an abuse or neglect investigation and dependency case brought against the children's mother. Unlike licensed family day care homes and facilities, registered homes are not subject to pre-licensure inspection, periodic or surprise inspection after licensure, or DCF monitoring after children are placed in the home. Therefore, in consideration of applications for registration as a family day care home, DCF is particularly careful to make sure that there is nothing in an applicant’s background that would indicate a potential risk for children left in the applicant’s care.1/ Accordingly, DCF conducts a background check that includes its central hotline computer system as well as criminal background checks, pursuant to Chapter 435, Florida Statutes. Marsha Carpenter conducted the screening of Petitioner's application. Her search turned up two prior cases in which Petitioner had been named as a responsible party in the final decisions. FPSS 2004-012525-01, received by DCF on May 7, 2004, was closed with verified findings of exploitation by Petitioner of an elderly, vulnerable adult, who was Petitioner’s mother. This is the only FPSS report referred-to in the Agency’s denial letter. At hearing, evidence was also received concerning FPSS 2004-405767-01, received by DCF on August 27, 2004. No explanation was offered as to why this report, which returned a verified finding of “inadequate supervision” of her three-year- old granddaughter against Petitioner, was not mentioned in DCF’s denial letter. Even with the testimony of the investigator in FPSS 2004-012525-01 (elderly exploitation), much of that report does not even rise to the level of hearsay consideration permitted by Section 120.57(1)(c), Florida Statutes. Therefore, it cannot be relied upon in its entirety here. The credible evidence presented herein, including numerous admissions by Petitioner, support a finding that Petitioner was successively hospitalized in two separate mental health facilities for two separate short periods between May 4, 2004, and June 10, 2004, and that these two short hospitalizations were a result of the great stress Petitioner had endured in caring for her mother, who had just suffered a stroke, and in caring for her brother, who had suffered from a debilitating illness which ultimately caused his death on May 24, 2004. Petitioner thought she may have been hospitalized three times, instead of two times, and testified without refutation that the hospitalizations occurred because she was unable to care for herself in her great grief. Upon the totality of the competent credible evidence, it is further found that during the period addressed by FPSS 2004-012525-01, Petitioner was operating under a legitimate power of attorney from her mother and was also either a legitimate co-signor on her mother's checking account or legitimate co-payee on her mother's government checks. During this period, Petitioner used a check to access her mother's money so as to pay all, or some, of her own utility bill. In mitigation of this diversion of her mother's funds, Petitioner intended that another check of Petitioner's own would be used to pay all, or some, of her mother's nursing home expenses, thereby making-up the deduction of her mother's money she had used for her own utility payment. However, neither her mother's money nor Petitioner's own check reached Petitioner's mother's nursing home, and Petitioner's mother’s nursing home expenses were not, in fact, paid by Petitioner. While Petitioner attributed her failure to pay the nursing home to loss of money from her own checking account, due to her own check, and/or due to her mother's endorsed government check having been cashed by a third party without Petitioner's authorization, there still remains no evidence that Petitioner ever made good on paying her mother’s expenses at her mother’s nursing home. FPSS No. 2004-405767-01, relates to a later date in 2004, when Petitioner's grandchildren, a boy and a girl, were staying with her. Petitioner admitted that she left the children alone and unsupervised in her yard while she went to answer her phone. Petitioner maintained that she was only away from the yard for five minutes and stated that she, herself, rather than a neighbor, as stated in the FPSS report, had summoned the police. However, Petitioner also admitted that the period of time she left her grandchildren unattended had been sufficient for an older neighborhood boy to solicit oral sex from her three-year-old granddaughter. Based on the evidence as a whole, it is not credible that the grandchildren were left alone for only five minutes, but even so, Petitioner conceded that molestation, or even kidnapping, could have occurred in the period of time the children were left unsupervised, even if that period had been only five minutes. On a subsequent occasion, M.P.'s grandchildren were taken into custody in connection with a DCF abuse/neglect investigation of their mother, Petitioner's daughter. Due to Petitioner’s mental health history, the two prior FPSS reports, and the criminal history of an uncle living with Petitioner at the time, DCF did not recommend to the circuit court that Petitioner be considered for long-term placement of the grandchildren. The circuit court placed the grandchildren with a neighbor and friend of Petitioner instead of with Petitioner. During the extended period of time that Petitioner's grandchildren were fostered by Petitioner’s neighbor and friend, Petitioner paid their room and board and regularly visited them in the foster mother's home. The foster mother is an old friend of Petitioner and a member of her church. She testified to Petitioner's honesty, kindness, and love of her grandchildren. Since 2004, Petitioner has been taking psychotropic medication for her mental health, but she presented no medical evidence about the effects of this medication or whether she is safe to be around children while she is taking it. Petitioner presented credible testimony and supporting evidence that since 2004, she has regularly worked as a Certified Nursing Assistant (CNA) without any reported incidents of neglect, abuse, or exploitation of patients. The credible evidence demonstrated she has been a licensed CNA for 23 years, not the 30 years she testified to.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Children and Family Services denying registration at this time, while clearly setting out that Petitioner is free to reapply at any time. DONE AND ENTERED this 8th day of February, 2008, in Tallahassee, Leon County, Florida. S ELLA JANE P. 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 8th day of February, 2008.
The Issue The issue is whether to deny Petitioner's application to renew her registration to operate a family day care home for the reasons stated in the Notice of Denial dated April 7, 2017.
Findings Of Fact The Department is the agency charged with the responsibility of licensing and registering family day care homes. See § 402.313, Fla. Stat. A family day care home is an "occupied residence in which child care is regularly provided for children from at least two unrelated families and which receives a payment, fee, or grant for any of the children receiving care." § 402.302(8), Fla. Stat. In order to operate a family day care home, the home must be licensed or registered by the Department. § 402.312(1), Fla. Stat. Unlike a licensed home, which is subject to more regulatory oversight, a registered home is not subject to periodic inspections, and the home is only required to undergo an annual evaluation during the registration process. § 402.313(1), Fla. Stat. Petitioner has operated a registered family day care home under the name of Little Bright Stars of Orlando at 4419 Fairlawn Drive, Orlando, for several years. Her most recent registration expired on March 9, 2017. This proceeding concerns Ms. Rosado's application for renewal of her registration. Unless a complete renewal application is filed, the application will be denied. § 402.313(1), Fla. Stat. This is because the Department has no authority to approve an incomplete application conditioned on an applicant filing the missing items at a later time. On March 9, 2017, Petitioner filed her renewal application with the Department. The application did not have the following required items: the application fee; a list of children in her care; a copy of the current immunization record for each child in her care; a copy of a training certificate, an in-service training record form 5268, or a continuing education unit certificate documenting ten clock hours of annual in- service training; a copy of the completed Registered Family Care Home Health and Safety Checklist; a copy of the tear-off section signed by the parent or legal guardian for each child in her care; a copy of the completed Child Abuse & Neglect Reporting Requirements form, signed and dated by the substitute(s); and a Level 2 Background Screening (livescan) for the operator, adult household members, and substitute(s). Petitioner was sent an email the following day informing her that she must file the incomplete and missing items. When the application was filed, Petitioner had several health-related issues, which required her to temporarily stop caring for children in her home. At that time, she was forced to make a choice between paying her medical expenses or the costs associated with renewing her application. She chose the former and submitted an incomplete application without a filing fee. Once the Notice of Denial was issued, Petitioner decided there was no reason to incur the costs associated with the missing items until she knew whether her application would be approved. As of the date of the hearing, the application was still incomplete. Pursuant to section 39.201(6), Florida Statutes, information in the Department's central abuse hotline and automated abuse information system may be used in its evaluation of a registration application. In May 2016, the Department received a complaint that Petitioner's home was "operating illegally," and she had forced a three-year-old child to clean up his urine when he had an accident. Petitioner characterizes the complaint as "false" and asserts it is based on erroneous information provided by a disgruntled parent who just removed her two children from the home. The Department's subsequent investigation belies this contention. In response to the complaint, a Child Institutional Investigation was conducted by a Department Licensing Counselor and a Child Protective Investigator on May 23, 2016. While investigating the urine incident, the investigators observed an unscreened person, Petitioner's 17-year-old daughter-in-law, living in the home and assisting with the care of the children. They also observed children sleeping on the floor with no mats, a leaking ceiling in the area where the children play, and paint cans that were accessible to the children. These conditions violate Florida Administrative Code Rule 65C-20.010, which establishes health and safety-related requirements for family day care homes. The Department closed the investigation on July 4, 2016, with verified findings of inadequate supervision and environmental hazards. See Dep't Ex. B. The report concluded that based on the confirmed findings, the safety assessment was "low," meaning the deficiencies did not present a high risk of injury to the children. Petitioner was notified by letter dated August 16, 2016, that the investigation was closed and she could request a copy of the report. Petitioner did not request a copy, and she saw the report for the first time when the Department pre-filed its exhibits. At hearing, most of Petitioner's evidence addressed the confirmed findings in the abuse report. She questioned why she was never offered a hearing to contest those findings, but there is no statutory requirement that the Department conduct a hearing to allow a perpetrator to challenge a confirmed report. In any event, Petitioner was allowed to respond to the findings in the report and to provide evidence to mitigate or contradict the observations of the investigators. Petitioner also questioned why a second inspection was never conducted by the Department to determine if the violations observed during the May 23 investigation had been corrected. An abuse investigation, however, differs from a licensing inspection, and there is no requirement that the Department conduct a second inspection to verify that abuse violations have been corrected. At hearing, Petitioner explained that her 17-year-old daughter-in-law was a temporary occupant of the home while her husband (Petitioner's son) was on active duty in the military. She admitted, however, that the daughter-in-law was not screened, which is a requirement for all persons having contact with the children in a family day care home. She also acknowledged that her husband resides in the home but is not screened. At hearing, Petitioner denied that she had forced a child to clean up his urine. She explained that the child had actually spilled water on the bathroom floor while washing his hands and she made the child clean up the spilled water. During the investigation on May 23, 2016, however, Petitioner admitted to the investigators that the child had continued to urinate on himself and she required the child to clean up the urine in the hope that he would not do this in the future. This is a Class 1 violation of rule 65C-20.010(6)(a), which prohibits humiliating a child as a disciplinary measure. It also meets the definition of "abuse," as defined in section 39.01(2), and "harm," as defined in section 39.01(30). For these reasons, the abuse report confirmed the finding of inadequate supervision. Petitioner further explained that on May 23, 2016, her husband was in the process of making repairs to the leaking roof and the damaged ceiling in the home, and these repairs were completed shortly after the investigation. After being told that sleeping mats were required for the children, Petitioner purchased ten mats for the children. Even so, these deficiencies were observed on May 23, 2016, are confirmed by testimony and photographs received in evidence, and are grounds to verify the abuse allegations. Two parents who have used Petitioner's services attested to her good character and the quality of care that their children receive. They urged that the home be allowed to remain open. Even if the abuse report is not considered, the Department would still be required to deny the application because it is incomplete. According to a Department witness, if a complete application had been filed, denial would still be required based on the confirmed abuse report.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Families enter a final order denying Petitioner's application to renew her family day care home registration. DONE AND ENTERED this 13th day of July, 2017, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER 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 13th day of July, 2017. COPIES FURNISHED: Lisa M. Eilertsen, Agency Clerk Department of Children and Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed) Cynthia Rosado 4419 Fairlawn Drive Orlando, Florida 32809-4409 (eServed) Rebecca Falcon Kapusta, General Counsel Department of Children and Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed) Brian Christopher Meola, Esquire Department of Children and Families. Suite S-1129 400 West Robinson Street Orlando, Florida 32801-1707 (eServed) Mike Carroll, Secretary Department of Children and Families Building 1, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed)
The Issue The issue in this case is whether Petitioner's application for a license to operate a family day care center should be granted.
Findings Of Fact DCF is the state agency responsible for, inter alia, the approval and monitoring of family day care homes. Petitioner Karen G. Flanders ("Flanders") has been working in the child care field for several years. On or about April 21, 2006, Flanders submitted a Family Day Care Home Registration form, which is an application seeking approval to operate a small day care home. As part of the application process, Flanders agreed to allow DCF to conduct a Central Abuse Hotline Record search to determine the existence of any complaints or actions against her. The consent form Flanders signed allowing the search included a provision that the department would see any investigation resulting in "verified indicators." During its processing of the application, DCF determined the existence of an investigative report concerning Flanders. The incident in the report allegedly occurred on September 1, 2005. Flanders was alleged to have grabbed, slapped, and punched a child, C.S., while working as a day care worker for Kids Together day care facility. Flanders was immediately terminated from employment by her employer. The Central Abuse Hotline was contacted immediately. By her own admission, Flanders was the caller. Pursuant to its duty, DCF conducted an investigation the day after the alleged incident. The investigation found there were "some indicators" of excessive corporal punishment. The term "some indicators" advises DCF that some adverse incident has happened, but it could have been a one-time issue that may never happen again. In this case, the primary concern of DCF was that the alleged incident occurred in a child care facility. Flanders had an excessive history of prior reported incidents, which was taken into consideration by the investigators. Based on those findings, the safety of the child victim became a concern. DCF found, however, that Flanders' termination from employment was sufficient to alleviate further concern for the child. Flanders has been involved in child care for many years and considers it her occupation. Her pending application to operate a small child care facility is consistent with her work history. However, she has had an adverse incident resulting in some indicators of abusive behavior.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Children and Family Services denying the application by Karen Flanders to operate a day care facility. DONE AND ENTERED this 22nd day of September, 2006, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of September, 2006. COPIES FURNISHED: Karen Flanders 14924 Lady Victoria Boulevard Orlando, Florida 32826 Stacy N. Robinson Pierce, Esquire Department of Children and Family Services 400 West Robinson Street, Suite S-1114 Orlando, Florida 32801 Gregory Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John Copelan, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Luci D. Hadi, Secretary Department of Children and Family Services Building 1, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether Petitioner, the holder of a family day care home registration, has violated Respondent's minimum standards for child care providers by failing to directly supervise an infant in her care on March 22, 2006, and whether her registration should be revoked, pursuant to Section 402.310(1), Florida Statutes.1
Findings Of Fact Petitioner, Jacqueline Bizzell, has been operating a child care facility in her home, at the same location, since 1992. She has been a registered family day care home with Respondent since January 30, 2001. As a part of her application to be a registered family day care home provider, Petitioner sent Respondent verification that she completed the required training for child care providers, which includes knowledge of Respondent's rules and regulations in the area governing child care. On January 26, 2006, Petitioner was informed that her family day care home was again registered for one year, effective January 30, 2006. In the letter, Petitioner was informed that she must maintain her registration in accordance with Section 402.313, Florida Statutes (2005). On March 24, 2006, Respondent received an allegation of neglect or abuse that took place at Petitioner's family day care home on March 22, 2006. Rivers Lewis (Lewis) was a child protective investigator for Respondent on the date of the allegation. He conducted an investigation of the allegation and completed a report. As a part of the investigation, Lewis spoke directly with Petitioner who stated that on March 22, 2006, the child was the only child in her care the day of the incident, and that she left him sleeping on her bed and went into the hallway in front of another room to do laundry or to do something else. Petitioner told Lewis that as soon as she heard the child cry, she stepped back into the room to find that he had fallen from the bed. Petitioner said, first, that the child had fallen off the bed, but later stated that the child had been on the side of the bed and was hanging onto the covers. Lewis submitted his investigative report on April 27, 2006, concluding that the case could be closed with verified indicators of "inadequate supervision" by Petitioner. Shortly after Lewis submitted his report, Ivette Garcia, Child Care Licensing Administrator, received a copy and reviewed it with another worker. She sent Petitioner a letter, dated May 10, 2006, stating that: "The purpose of this letter is to advise you that effective immediately, your family day care home is closed and that your registration is no longer valid." The closure was based upon the incident that occurred on March 22, 2006, wherein the investigative report, submitted by Lewis, confirmed indicators of inadequate supervision. No further investigation or other action was conducted by the child care licensing section in DCF's District 7 before the letter was sent. Although Garcia testified at the hearing that inadequate supervision of a child is a Class I violation, the highest violation, Petitioner was not specifically advised of such classification in the May 10, 2006, letter, nor was a finding made of an immediate serious danger to the health, safety, or welfare of the children who are enrolled in Petitioner's home. Respondent's District 7 Child Care Licensing office did not go to Petitioner's home to inspect or verify the report. It had no further communication with Petitioner after said date. Petitioner was not charged with causing injury to a child under her supervision. Garcia testified that due to the limitations of the registration statute (§ 402.313, Fla. Stat.), Respondent had only one option to deal with a Class I violation: immediately close the home and invalidate the registration. Petitioner's family day care home operated under the name: Hi Granny Day Care. She had only one child in her home on March 22, 2006, the eight-month-old boy, Markel. The child had been fussy and throwing up all day. At about 4:00 p.m., she put the child in the middle of her bed when he finally went to sleep. The bed was by the door. She stepped across the hall to do some chores and while standing at the door, in front of the playroom for about 14 or 15 minutes. When she heard a noise, she immediately stepped back into the room. She admits that she said to the investigator that he fell out of the bed, but that he really did not fall to the floor, but slid off of the bed and was dangling from the bed when she came back into the room; and a blanket broke his fall. She provided a handwritten diagram of her home as it appeared on the date of the incident. Petitioner had been taking care of Sherina Clemons' eight-month-old son, Markel, for over two months when the incident occurred. On March 22, 2006, Petitioner called her between 4:45 p.m. and 5:00 p.m. asking Clemons to not be mad at her. Petitioner told her that the child had been asleep when she placed him on her bed, but that when she walked out of the room, he must have awakened and fallen off of the bed landing on a pallet of covers. According to Latoya Marion, Children's Home Society, the Petitioner's reputation in the community was very good as a child care provider. Latisha Rashawn Bell has known Petitioner for about three years and Petitioner cared for her daughter in 2006. She came to Petitioner's home on March 22, 2006, later in the evening, and knocked on the door. Petitioner came to the door, holding the child, who was whining or crying. Petitioner told her that the child had fallen out of the bed, but had not landed on the floor. Chakera Angelette Faniel is a child care provider, who is not employed by Petitioner. Petitioner cared for Ms. Faniel's daughter for the first three years of her daughter's life, but no longer does. She has known Petitioner for about five years and knows her to be a caring and loving person. Petitioner has a very good reputation in the community as a child care provider. The clear and convincing evidence demonstrates that late in the afternoon of March 22, 2006, Petitioner placed a sleeping eight-month-old boy in the middle of her king-size bed, which was located in her bedroom near the door. Petitioner stepped across the hall and did some chores, while standing in front of the playroom for about 14 or 15 minutes. Although she was only three or four feet from the child, Petitioner could not see the child from where she was standing. When she heard the child cry, she immediately stepped back into the room and found the child lying on some covers on the floor. She picked the child up, who did not appear to be injured. Shortly thereafter, Petitioner contacted the child's parents and reported the incident to them. The child's mother arrived later and took the child home. The evidence is clear and convincing that Petitioner failed to provide direct supervision of the child while he was napping, in the late afternoon, on March 22, 2006. The evidence is clear and convincing that Petitioner is a long-term child care provider, who obviously gives compassionate care to the children in her care. There have been no prior reported incidents of neglect or abuse filed against Petitioner, nor were prior deficiencies listed. Petitioner enjoys a good reputation as a child care provider in her community. Except for the incident on March 22, 2006, no evidence was presented that Petitioner presented an immediate serious danger to the public health, safety, or welfare to the children who are enrolled in her family day care home.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: The Secretary of the Department of Children and Family Services issue a final order as follows: Finding Petitioner guilty of a single violation of the provisions of Florida Administration Code Rule 65C-22.001(5)(a) and (b) on March 22, 2006; Imposing an administrative fine of $100; and Immediately reinstating Petitioner's family day care home registration for a period of 264 days and permitting Petitioner the opportunity to submit an application for renewal of her family day care home registration at the appropriate time. DONE AND ENTERED this 13th day of April, 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 13th day of April, 2007.
The Issue The issue is whether Respondent should renew Petitioner's license to operate a large family child care home.
Findings Of Fact Petitioner has owned and operated Jeannie's Child Care in her home as a licensed 24-hour facility since 1988. Petitioner's license allows her to keep up to 12 children at a time. She also owns another offsite daycare center that is not at issue here. Petitioner's license to operate a large family child care home expired on December 2, 2001. Prior to the expiration of the license, Respondent designated Petitioner's facility as a Gold Seal Quality Care Program. There is no credible evidence that Petitioner is responsible for any child being spanked with a paddle or a belt. She normally puts children in the corner for time out when they misbehave. However, competent evidence indicates that Petitioner sometimes threatens to spank children that are difficult to control. On at least one occasion, Petitioner spanked third and fourth grade sisters with a rolled up newspaper, telling them that if they behaved like dogs, she would treat them like dogs. On other occasions, Petitioner spanked C.F. and F.D. by hand. Because C.F. was particularly hard to manage, his mother and her boyfriend gave Petitioner permission to spank C.F. The children in Petitioner's care sometimes bite other children. Usually these children are toddlers. To discourage biting, Petitioner told her staff to put a drop of hot sauce on a finger then put the finger in the child's mouth and on the gum. Petitioner used hot sauce in the manner described on F.D. and at least one other toddler. Petitioner's adult son drove the facility's vans. He also played with the children in the yard. At times, he would let the children exercise with him by doing push ups or sit ups and running laps. Occasionally, Petitioner's son or teachers at the facility would encourage C.F. or other school-aged children to exercise and run laps. The purpose of the exercise was to burn excess energy. To the extent that exercise was used to control the behavior of the children, there is no persuasive evidence that it was excessive. It is acceptable to discipline children by placing them in time-out. It is not acceptable to require the children to hold their hands up in the air or to hold books in their hands during a time-out period. There is no persuasive evidence that Petitioner was responsible for children having to hold their hands in the air or to hold books in their hands while they were in time-out. Petitioner's method of disciplining children varied depending on how difficult it was to control them. In some cases, the parents of the children approved Petitioner's unorthodox discipline. However, there is no evidence that any child in Petitioner's home facility were bruised or physically injured as a result of punishment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent enter a final order renewing Petitioner's license to operate a large family day care home subject to appropriate terms and conditions. DONE AND ENTERED this 18th day of July, 2002, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 18th day of July, 2002. COPIES FURNISHED: Ralph J. McMurphy, Esquire Department of Children and Family Services 1601 West Gulf Atlantic Highway Wildwood, Florida 34785 Edward L. Scott, Esquire Edward L. Scott, P.A. 409 Southeast Fort King Street Ocala, Florida 34471 Paul F. Flounlacker, Jr., 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 in this case is whether Petitioner, Sabra Portwood, is entitled to register her home as a family day care home under the provisions of Chapters 402 and 435, Florida Statutes.
Findings Of Fact On August 10, 2000, Petitioner was married to Randy Shoaff. She had two children, twins, by him and is currently pregnant with another of his children. Although estranged at present, they remain married. Petitioner is in the preliminary stages of dissolving the marriage and intends to complete the dissolution process. Petitioner and Mr. Shoaff have had a rocky relationship. On October 4, 2000, less than two months into their marriage, Mr. Shoaff struck Petitioner several times in the head from behind. She was pregnant at the time of the attack. The incident was reported to law enforcement. On March 12, 2001, Petitioner swore out a Petition for Injunction for Protection Against Domestic Violence, naming her husband as Respondent. The essential facts to which she swore and testified to at hearing were as follows: On February 23, 2001, at 705 W. Wilcox the Respondent Randolph Shoaff told me that the only reason I was still alive was because I was pregnant and that I have 3 other children. He said that he wanted to shoot me & then kill himself. Because of his actions before I have been afraid of him on 3 or 4 different occasions, and I would just be quiet & not say anything & wait for him to go to work. On Oct. 4th (there should be a police report) there was a dispute between us & he started hitting me in the head repeatedly when I was 3 months pregnant & had only been home for 3 hrs from the doctor because I was bleeding during pregnancy. I am afraid because I asked his coworker if his (Randy's) gun was under the counter & he said it wasn't there. As a direct result of Petitioner's request for a domestic violence injunction, the Third Circuit Court issued a Temporary Injunction. Subsequently, the injunction was conditionally dissolved. However, Mr. Shoaff was ordered to have no personal contact with Sabra Portwood at her home. A third Order was subsequently entered in order to facilitate visitation with his children, allowing non-hostile contact between the parties. Mr. Shoaff does not live with Petitioner. However, Petitioner and Mr. Shoaf are presently married. Therefore, Mr. Shoaf is currently a member of Petitioner's family and is required to undergo background screening for Petitioner's registration. Mr. Shoaff did not pass the background screening because of the injunction based on domestic violence entered against him. No exemption from disqualification was sought. Because of the failed background screening, Petitioner, who was the victim of domestic violence and took steps to protect herself from that violence, was denied registration based on the actions of her estranged husband.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Children and Family Services denying Petitioner's request to register her home as a family day care home. DONE AND ENTERED this 24th day of May, 2002, 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 May, 2002. COPIES FURNISHED: John R. Perry, Esquire Department of Children and Family Services 2639 North Monroe Street Building A, Suite 104 Tallahassee, Florida 32399-2949 Sabra Portwood 140 Regina Road Perry, Florida 32348 John 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 The issue in this case is whether HRS should grant the Petitioner's application a license to operate a foster care home for dependent children.
Findings Of Fact The Petitioner, Christopher Murphy, is a single male, born July 27, 1966. He wants to be a foster care parent for up to two teenagers, same sex, including those with a history of having been abused. In approximately September, 1994, the Petitioner approached the Children's Home Society (CHS), located in Orlando, Florida, to inquire about applying for licensure to operate a foster care home for dependent children. CHS is and was under contract with the Department of Health and Rehabilitative Services (HRS) to screen prospective licensees. The screening process included, among other things: interviews with the Petitioner; a home study; review of written personal references on behalf of the Petitioner; evaluation of the Petitioner's participation in the HRS-approved Model Approach to Partnerships in Parenting (MAPP) program. After conducting its training and screening of the Petitioner, CHS recommended the Petitioner for licensure "for two children, same gender, ages 12 to 18 years," and the Petitioner filed his application for licensure on or about May 3, 1995. The Petitioner and the "relief persons" he designated in his application underwent background screening, and no disqualifying information was found. However, by letter dated July 11, 1995, HRS gave notice of intent to deny the Petitioner's application for the following reasons: According to Florida Administrative Code Chapter 10M-6, it is the opinion of the Department that based on your own experience with depression, your single lifestyle and your sexual orientation that your desire to be a foster parent is not in the best inte- rest of the children in the custody of Health and Rehabilitative Services. You have indicated that you have doubts about your ability to work with HRS in seeking rehabilitation of the families with children in foster care, that you have limited patience with bureaucracy, and that you would not like to see the foster children in your care return to their parents. Professional counseling to relieve distress over your sexual orientation did not resolve that issue. These consider- ations lead HRS to believe that it would not be in the best interest of children in state custody to be placed with you in foster care. The Petitioner's Mental and Emotional Status The evidence is that the Petitioner experienced some difficulties growing up as one of ten siblings. His mother was very religious but, at the same time, appears to have been a strict disciplinarian and, at times, almost "cruel" to the children. In addition, the Petitioner tended to be a loner during his early years. He was physically weak and was susceptible to being bullied by other children. In addition, he played differently from other boys his age, preferring to spend his time reading Jane Austen and the Bronte sisters rather than playing with friends. As the Petitioner grew older, he increasingly recognized signs that he was homosexually oriented. These signs disturbed him because a homosexual orientation was contrary to his desires and to what he understood to be the morals of his family and religion. When the Petitioner went to college in the mid-1980's, he still would have been considered a "social isolate," and the combination of stresses from leaving home, living on his own at college and dealing with his sexual orientation resulted in depression requiring individual psychotherapy and medication (at first Impramine and later, in 1992, Prozac). Dealing with his mother's death in 1988 caused the depression to recur, but the Petitioner was able to recover with the help of the psychotherapy and medication. Since 1988, the Petitioner has suffered periodic bouts of mild depression. (Medication he takes for rapid heartbeat tends to cause some depression as a side effect.) However, the Petitioner's major depression is in remission, and he has been able to control the mild depression by the appropriate use of medication. The Petitioner's physicians advise him to continue on medication and seek therapy as necessary. In recent years, the Petitioner has resolved his conflicted feelings about his mother, as well as many of the conflicts he had with members of his family. The Petitioner also has made great strides to resolve his conflicted feelings about his sexual orientation. At the same time, he still rejects the values and lifestyle of the gay world and continues to accept most of the basic tenets of traditional values and lifestyle. As a result, there is no indication that the Petitioner is trying to use the foster parent program in order to make a political statement about gay rights. However, the difficulty the Petitioner will continue to face is that traditional society does not necessarily always accept him. This probably will make being a foster parent more difficult for the Petitioner. The Petitioner also has made considerable progress making and maintaining viable personal relationships. He has been able to work responsibly and well in the positions he has held with Universal Studios in Orlando and has made and maintained several positive and valuable friendships through work and elsewhere. In the words of a licensed psychologist who evaluated him in August- September, 1995, the Petitioner is "on the mend" in this regard; by this he meant that the Petitioner is making good progress in the right direction. If major depression were to recur, the Petitioner obviously would have difficulty persevering, and probably would be unable to persevere, in seeing a foster child through to the end of his or her temporary placement. But in recent years the Petitioner has been able to control depression by appropriately using his antidepressant medication, monitoring himself for symptoms of depression, and seeking appropriate therapy as needed. As long as he continues to do so, it is not anticipated that major depression will recur. HRS has licensed others with mental and emotional status similar to the Petitioner to be foster parents. It is true that there is a possibility that the stress of being a foster parent could cause the Petitioner's depression to recur. In many ways, teenage is the most difficult age bracket for foster care, and abused teenagers can present even greater difficulties. But HRS maintains control over the children to be placed with the Petitioner, and an effort could be made not to place the most difficult foster care challenges with the Petitioner, at least initially. In addition, HRS and the Petitioner could cooperate in monitoring the effects that the stress of being a foster parent have on the Petitioner. There is a good chance that the Petitioner's depression will not recur as a result of being a foster parent. The Petitioner's Parenting Experience The Petitioner has no children of his own and has no parenting experience. He grew up in a family of ten children but tended to spend much of his time apart from them. The Petitioner did some baby-sitting during his teens. But otherwise, through his college years, the Petitioner did not exhibit much inclination or desire to be around or work with children. The Petitioner changed as he reached adulthood. He now has a very strong desire to help teenage children by acting as their foster parent. In recent years, he has had the opportunity to work with families having their pictures made at the Universal Studios park in Orlando and has found that he had success interacting with the young members of those families. While he has not had much experience taking care of teenagers, he also has enjoyed spending considerable time in recent years interacting with the young children of friends and other family members. (Living in the a vacation center, many siblings and other members of his family have taken advantage of the opportunity to visit him since he moved to Orlando.) The Petitioner seems to interact well with the children in several arenas--facilitating play, sharing snacks and meals, helping with homework, going on picnics and other outings, suggesting and participating in other positive family activities. His friends' children like him, and his friends trust him with tending to their children. On the other hand, the Petitioner's experience taking care of children is limited. The Petitioner's experience as the sole caretaker responsible for children is relatively sparse and of relatively short duration. While the Petitioner has done some baby-sitting for family and friends, most of the time he has spent with children has been while their parents were around. The Petitioner has not had occasion to be responsible for children overnight or for extended periods of time (certainly not for 24 or more hours). He also has not had much other experience working with children in other settings. He has not, e.g., worked or volunteered as a counselor for church or civic youth groups or camps. Due to the nature of the Petitioner's experience with children, and his lack of experience with teenagers, it is not certain that the Petitioner will succeed as a foster parent of teenagers, or children of any age. It also is not certain that the Petitioner himself will thrive as and enjoy being a 24- hour a day foster parent. It would be desirable both for the Petitioner and for the children to be placed with him for the Petitioner to get more experience before beginning to act as a foster parent. But, on the other hand, the same probably could be said for most first-time parents. It is hard to truly know what it is like to be a parent until you become one. HRS has no non-rule policy establishing clear minimum experience standards for licensure as a foster parent. HRS has licensed others to be foster parents with as little or less parenting experience compared to the Petitioner. The licensing administrator who testified for HRS stated that HRS never has issued a provisional license to a first-time applicant and that HRS would not issue one for the purpose of evaluating the provisional licensee while the licensee gains additional parenting experience. The Petitioner's Ability to Be a "Team Player" On the "Strengths/Needs Work Sheet" for various sessions of the Petitioner's MAPP training, the Petitioner wrote: (Needs as a Result of Meeting 2) I am intolerant of those who hurt children and may have a difficult time holding back and/or editing my language in their company (during visits). I have limited patience with bureaucracy. If something is not getting done, I will do it myself regardless of who gets offended. (Needs as a Result of Meeting 5) I probably will assume I am a better parent than the child's birth parents, and I don't think I'll want the child to return to his biological family. As CHS conducts MAPP training, prospective foster parents are encouraged to use the "Strengths/Needs Work Sheet" to honestly express their deepest concerns about their ability to succeed as foster parents. Then, the trainers help the trainees deal with those concerns. CHS' MAPP trainers believed that, during the course of the training sessions, the Petitioner was able to work through his concerns and grow through the training process. He was open to the trainers' ideas and actively participated in the sessions. In their estimation, the Petitioner's comments, even when in the fifth session, should not be taken as an indication that the Petitioner would not be able to work in partnership with HRS and birth families as a team player. The licensing administrator who testified for HRS was not familiar with how CHS conducted MAPP training and was not in a position to conclude, as she did, that the Petitioner's statements on the "Strengths/Needs Work Sheet," in and of themselves, show that the Petitioner will not be able to work in partnership with HRS and birth families as a team player. The Petitioner has had no difficulty working within the bureaucracy at Universal Studios. He has had good relationships with his supervisors and has had no difficulty accepting their authority over him. Nothing about his employment experience would indicate that the Petitioner would have difficulty working in partnership with HRS and birth families as a team player. The Petitioner's Single Life Style On the "Strengths/Needs Work Sheet" for various sessions of the Petitioner's MAPP training, the Petitioner wrote: (Needs as a Result of Meeting 2) I am responsible, but do not lead a structured life. I eat when I'm hungry, sleep when I'm tired, have ice cream for breakfast . . . (Needs as a Result of Meeting 3) I may not be able to go out all night and do things as spontaneously as I do. (Needs as a Result of Meeting 5) It's just me - one on one. If I had a spouse to back me up when making rules or administer- ing discipline, things would be easier. On the other hand, the Petitioner also counted among his strengths: (Needs as a Result of Meeting 3) It's just me. . . . A foster child has only one person to adjust to. (Needs as a Result of Meeting 4) I have no other people living in my home and can devote a majority of my free time to my foster child. (Needs as a Result of Meeting 5) As a single male with no children, I will be the only one affected. These comments indicate an awareness on the Petitioner's part that his life will change if one or two foster children are placed in his home. As he recognizes, being single will make it more difficult in some ways, but somewhat easier in other ways. What can make being a single foster parent most difficult is not having the emotional and intellectual support and help of another adult in the home. A single foster parent must attempt to compensate by having adult family and friends who are willing and able to serve some of those needs. Several of the Petitioner's friends are willing and able to serve in this role for the Petitioner. All have met HRS's screening requirements. One thing a single foster parent cannot replace is the inability to demonstrate (and teach through) a successful marriage. But this inability clearly is not disqualifying. The Petitioner's Sexual Orientation HRS's notice of intent to deny the Petitioner's application mentioned the Petitioner's sexual orientation. But at final hearing HRS took the position that sexual orientation itself was not a ground for denial of the Petitioner's application. While not disqualifying in itself, being a homosexual foster parent undeniably will present special problems. First, it already has been mentioned that it can be a challenge for a homosexual to function in traditional society, and trying to function as a foster parent in traditional society surely will present its own special challenges. Along those lines, it is foreseeable, e.g., that a foster parent's homosexuality could be unacceptable to the birth family. In addition, since unmarried cohabitation by two or more adults is disqualifying, the Petitioner would be restricted to living alone. Lastly, many foster parents later adopt children placed with them, but the Petitioner will not be able to because homosexuality is disqualifying for purposes of adoption.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Health and Rehabilitative Services enter a final order issuing the Petitioner a license to operate a foster home for up to two children, same sex, ages 12 to 18 years of age. DONE and ENTERED this 27th day of June, 1996, in Tallahassee, Florida. J. LAWRENCE JOHNSTON, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings 27th day of June, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-4150 To comply with the requirements of Section 120.59(2), Florida Statutes (1995), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1. Rejected that he applied for a license then; he initiated the screening process and preservice training at that time. Otherwise, accepted and incorporated. 2.-4. Accepted and incorporated. 5.-8. Accepted and incorporated to the extent not subordinate or unnecessary. 9. The characterization "extensive" is rejected as not proven; otherwise, accepted and incorporated. 10.-12. Accepted and incorporated. 13. The date "July 11, 1996" is rejected as contrary to the evidence. (It was 1995.) Otherwise, accepted and incorporated. 14.-16. Accepted and incorporated to the extent not subordinate or unnecessary. 17. Accepted but subordinate and unnecessary. 18.-22. Conclusions of law. Accepted and incorporated. Conclusion of law. Respondent's Proposed Findings of Fact. 1.-3. Accepted and incorporated. 4.-6. Conclusions of law. 7.-9. Accepted but subordinate and unnecessary. Rejected as contrary to the greater weight of the evidence. (The first testimony referred to Noll's knowledge of whether the Petitioner was on medication at the time of the hearing. Noll was not "pressed" for the additional testimony; he was just asked a different question.) Rejected as contrary to the evidence that Noll "failed to follow through." Also, subordinate and unnecessary, as the question for determination is whether the evidence at final hearing supported licensure. Rejected as contrary to the greater weight of the evidence. (Again, the question for determination is whether the evidence at final hearing supported licensure.) Rejected as contrary to the greater weight of the evidence that he did not present any experience in his application; he presented more at final hearing after being informed that HRS included experience in the "single lifestyle" ground for the July 11, 1995, notice of intent to deny. Again, the question for determination is whether the evidence at final hearing supported licensure. Rejected as contrary to the greater weight of the evidence; he presented more at final hearing. See 13., above. 15.-16. Generally, accepted. The Petitioner's exact statements are incorporated. Rejected as contrary to the greater weight of the evidence that the Petitioner's purpose was to "avoid working with birth families." (The gist of Noll's discussion with the Petitioner appears to have been that foster parenting older children generally makes reunification less of a concern; either reunification would not be a viable option or, if considered, the older child would have more say in the matter. Otherwise, accepted but subordinate and unnecessary. Accepted but, as previously ruled, subordinate to the ultimate issue for determination, and unnecessary. COPIES FURNISHED: Ann E. Colby, Esquire 305 Elkhorn Court Winter Park, Florida 32792 Laurie A. Lashomb, Esquire Department of Health and Rehabilitative Services 400 West Robinson Street, Suite S-827 Orlando, Florida 32801 Gregory D. Venz Acting Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-1600 Richard Doran General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-1600
