The Issue The issue for determination is whether Petitioner's foster parent application for adoption of the minor child, S. J., should be granted.
Findings Of Fact S.J. was abandoned at birth. Moses and Juanita Pitchford served as foster parents of the child from the age of two days until March 30, 1998, when the child was over two years old. S.J. was observed by several of Respondent's employees as not behaving like other children her age. She had a flat effect, not laughing, playing or verbalizing as other children who visited Respondent's offices did. Subsequent evaluations of the child established that S.J. was developmentally delayed in speech, physical, and cognitive skills. S.J. was then referred to Easter Seals for services to assist her in the speech, physical, and cognitive skills areas. The Pitchfords' care had never been criticized in any of the Respondent's home evaluation forms completed by Gwen Tennant, the home care counselor employed by Respondent. Only when Juanita Pitchford applied to adopt S.J. did Tennant assert that Juanita Pitchford was not providing adequate care for the child. Tennant's concern was based on the fact that S.J. was not receiving the maximum exposure to an Easter Seals program for which she had qualified. The Pitchfords were never formally informed of this or any other deficiency. The evidence establishes that the Pitchfords presented S.J. at the program four days per week out of the total five days for which she was eligible. Following Respondent's denial by letter dated April 13, 1998, of Petitioner's foster parent application for adoption, Respondent has continued to place foster children, including infants, in the Pitchford home. The rights of the child's biological parents were terminated by court order dated June 17, 1997, due to their abandonment of the child. The court noted in its order that: Testimony adduced revealed that the child can and has formed a significant relationship with the parental substitute as has been established in her current foster care placement. The foster parents are the only parents she has ever known. The court's order also stated: [T]he child is currently being given excellent care by foster parents who love and care for [S.J.], and consider [S.J.] to be their child. On March 30, 1998, S.J. was removed to the home of Betty Allen, another foster parent. Allen is not married, cares for six other foster children under the age of six years, and works at a full-time job outside the home. Consequently, S.J. is delivered to day care on a regular basis for five days each week. During four of those days, she is later taken to the Easter Seals program by day care personnel for four and one-half hours. Allen cares for the foster children in her home from approximately 5:30 p.m. until 8:30 p.m. in the evening. She drops the children at day care before 8:00 a.m. each day. In contrast, Petitioner is not employed outside the home, remains there throughout the day, and is able to provide intense daily interaction with S.J.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered approving the application of Petitioner. DONE AND ENTERED this 22nd day of September, 1998, 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 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of September, 1998. COPIES FURNISHED: Roger L. D. Williams, Esquire Department of Children and Family Services Post Office Box 2417 Jacksonville, Florida 32231-0083 James C. Cumbie, Esquire One Independent Drive, Suite 3204 Jacksonville, Florida 32202 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 is whether Respondent is guilty of acts and omissions to justify the revocation of his license to operate a family foster home, pursuant to Section 409.175(8), Florida Statutes.
Findings Of Fact Petitioner licensed Respondent to operate a family foster home from June 22, 2000, until May 15, 2001, at which time Petitioner revoked Respondent's license. The only foster children placed with Petitioner were Ju. K. (Ju.) and J. K. (J.), who are brothers. During the majority of the period in question, Ju. was 16 years old and J. was 17 years old. The boys were adopted at infancy. However, their adoptive mother died when they were young. The adoptive father remarried, but died a few years later, in January 1999. The stepmother never adopted the children, and, shortly after the death of their adoptive father, she turned over the two children to foster care. Respondent had been a friend of the stepmother since the mid-1980s and, through her, had met the adoptive father. Respondent became close with the couple and their children, whom he often visited on holidays. Learning that at least one of the boys had had problems in foster care, Respondent decided to qualify to become their foster father. At the time, Respondent was 40 years old and single and had not raised any other children. However, Respondent took the training courses required for licensing as a foster parent. After Respondent obtained his foster parent license, Project Teamwork for Kids, which is the private entity in Brevard County that recruits, trains, and licenses foster parents and places foster children with these parents, placed Ju. and J. with Respondent. J. began to live with Respondent in January 2000, and Ju. joined him in June 2000. During the summer of 2000, relations among Respondent, J., and Ju. were good. They took vacations and settled into their new lives during a period relatively free of stressful demands. Respondent asked Project Teamwork 4 Kids representatives not to start any family therapy during the summer and, once school started, asked that they again defer the initiation of such services. Respondent was aware that Ju. had been diagnosed with dissociative personality disorder, but believed that a normal home life would ameliorate this condition. During the summer, Respondent was concerned with the high school to which Ju. had been assigned for ninth grade. Respondent convinced school officials to reassign Ju. to a different high school, but school officials warned Respondent that, due to the reassignment, they would not tolerate disruptive behavior from Ju. Respondent was satisfied with J.'s assignment for tenth grade because it was the same school from which he had earlier dropped out. At the start of the school year, Respondent required weekly progress reports from J.'s teachers. However, as J.'s grades improved, Respondent dropped this requirement. During the period covered by this case, Respondent's relationship with J. was better than Respondent's relationship with Ju. Respondent and J. had a major disagreement arise at the end of October when J. returned home drunk from a homecoming celebration. A day or two later, after giving the matter considerable thought, Respondent discussed the matter with J. and imposed the punishment that Respondent would not provide his written consent for J. to obtain his driving learner's permit for six months, although Respondent would reconsider at three months. When J. learned of his punishment, he became irate and telephoned his case manager with Project Teamwork 4 Kids, Karen McCalla. He demanded that she remove him from Respondent's home. Ms. McCalla visited the home and spoke with J. alone for several hours, then Respondent, and then J. again alone. This home visit provides an early, but typical, example of the difference in perspectives of Respondent and Petitioner's witnesses. According to Respondent, Ms. McCalla arrived at the home, spoke with J. alone for several hours, spoke with Respondent, and then spoke with J. alone again. She then announced that Respondent should sign for J.'s learner's permit, but not allow him to drive for three months. Although he disagreed with the recommendation and felt that Ms. McCalla's recommendation had undercut his authority, Respondent complied with the request. Ms. McCalla's version is considerably different. Agreeing that J. was demanding that she remove him from Respondent's home, Ms. McCalla noted that J. complained generally that Respondent was "overbearing, overpowering and does not give [J.] any privacy." Focusing on the larger issues than merely the proper punishment for J.'s recent misbehavior, Ms. McCalla recommended that the family undergo family therapy. Ms. McCalla's version is credited. By Respondent's own account, Ms. McCalla spent "several hours" speaking with J. initially. Although underage drinking is a serious matter that may necessitate serious discussions, it is unlikely that Ms. McCalla and J. could have spent "several hours" on this single transgression. It is more likely that J. broadened his complaints in the manner described by Ms. McCalla. Respondent's contrary version either undermines his credibility as a witness or, if sincere, his competence as a foster parent. During the fall, Respondent's relationship with Ju. deteriorated. In general, Respondent's nascent parental skills were insufficient to meet the needs of Ju. When a conventional menu of incentives and disincentives failed to produce the desired results, Respondent grew increasingly frustrated, but declined to take advantage of the support resources available to him through Project Teamwork 4 Kids and its contractors. Instead, Respondent, alone, proceeded with his own disciplinary scheme, intensifying his disciplinary measures each time that less intense measures failed. Eventually, conflict between Respondent and Ju. escalated, and the domestic situation became unbearable for both of them. For instance, at school, Respondent was legitimately concerned that Ju. not jeopardize his placement at the high school to which he had been assigned due to Respondent's efforts. Worried about Ju.'s associations at school, especially due to Ju.'s poor school associations in the past, Respondent required Ju. to sign into the library immediately after eating lunch, so he would not have the chance to socialize with his peers. If Ju. failed to sign in, a teacher was to telephone Respondent, who would go to school to find Ju. By Respondent's admission, he enforced this arrangement for four to six weeks. Respondent was adamant that Ju. not date until he was 16 years old. This was a legitimate concern due to sexual behaviors that Ju. had displayed prior to his arrival in Respondent's home. Early in the school year, while Ju. was still 15 years old, Respondent overheard him speaking on the telephone with a girl from school. Respondent interrupted the conversation and asked Ju. to ask the girl if her mother were home. Finding that she was, Respondent asked to speak to the mother. Explaining to the mother that Ju. was not allowed to go on one-on-one dates until he reached 16 years of age, Respondent, by his own testimony, managed to agitate and offend the mother. Respondent admitted that Ju. became upset because he had considered the girl his girlfriend. On another occasion, Respondent required that Ju. end a relationship with a girl at school. Without detailing any concerns about sexual activity, Respondent explained his intervention by noting that Ju. had taken another boy's girlfriend, who seems to have not been suitable for Ju.--in Respondent's opinion. At home, numerous times Respondent employed more intense strategies when conventional disciplinary interventions failed to produce the desired results. For instance, when Ju. persisted in viewing sexually unsuitable material on the television in his room, Respondent removed the bedroom door, thus depriving Ju. of all privacy. Also, when Ju. persisted in abusing and overusing the telephone, even after being placed on telephone restriction, Respondent removed the handsets when he left the home, leaving the boy without telephone service in the home, although he could walk outside the apartment to a neighbor or a pay phone. Gradually, frustration erupted into physical confrontations. Twice, Respondent ripped T-shirts off the back of the boy during angry exchanges. Once, Respondent lightly slapped the boy on the mouth when he swore at Respondent. Twice, Respondent intentionally damaged audio equipment used by Ju. For each of these actions, Respondent devised transparent stories to cover up his failure to handle Ju.'s transgressions in a positive, effective manner. As the above incidents suggest, Respondent sought to impose a level of control over Ju. that was unsuitable for Ju.'s age and the circumstances of the relationship that existed between Respondent and Ju. Lacking both experience and maturity, Respondent obstinately dug in deeper each time his discipline failed to produce the desired result. Never lacking in good motives, Respondent lacked the resources needed for the difficult parenting task that Ju. presented, and Respondent exacerbated the situation by refusing to accept the assistance of professionals who might have been able to help him with Ju. Over time, even Respondent's innocuous behavior- modification techniques became counterproductive. For instance, Respondent routinely insisted that he and a child not go to sleep without first resolving any conflicts that may have arisen. Although a salutary policy, if applied with discretion, Respondent's overbearing implementation of this policy intensified hostilities, rather than defused them. An example of the injudicious use of this policy took place in early February 2001 when Respondent and Ju. got into an argument over an uncompleted homework assignment. Respondent warned Ju. that Petitioner lacked sufficient beds to accommodate Ju. at the time and that, if Ju. did not compose himself, Respondent would call the police to have Ju. removed from Respondent's home. This was especially hurtful to a child who had already known the pain of abandonment and abuse. Trying to defuse the confrontation, Ju. demanded time to step outside and cool off, but Respondent, insistent on a resolution on his terms, ordered Ju. to remain inside until Respondent had finished talking to him. By March 2001, Project Teamwork 4 Kids representatives had tried to intervene on at least two occasions in recent weeks, but Respondent had become increasingly resistant to what he viewed as interference from caseworkers with Ju. and J. By this time, Ju. wanted out of the home, and Respondent wanted him out of the home. On March 28, 2001, Project Teamwork 4 Kids removed Ju. from Respondent's home. About six weeks later, Project Teamwork 4 Kids also removed J. from Respondent's home. Petitioner proved some of its specific allegations and failed to prove others, but, as the Administrative Law Judge noted at the final hearing, the basic issue in this case is whether Petitioner can prove that Respondent has committed an intentional or negligent act materially affected the health or safety of children in his home. Petitioner has met its burden with respect to Ju. Ju. would have been a considerable challenge to a person with considerable parenting experience and skills. Respondent lacked both, but, knowing Ju.'s special needs, nonetheless sought the responsibility of serving as Ju.'s foster father. As the situation worsened, Respondent lacked the insight to avail himself of the resources offered to him and Ju. Instead, Respondent resorted to ineffective disciplinary strategies that eventually deteriorated into angry outbursts, culminating in Respondent's angry and desperate threat to end the placement itself--a most injurious act, given Ju.'s circumstances and dissociative personality disorder. Although it is clear that Respondent assumed a very difficult undertaking, his incompetent discharge of these responsibilities, coupled with his obstinate refusal to accept readily available help from others with greater training and experience, justifies the revocation of his family foster home license.
Recommendation It is RECOMMENDED that the Department of Children and Family Services enter a final order revoking Respondent's family foster home license. DONE AND ENTERED this 22nd day of January, 2002, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of January, 2002. COPIES FURNISHED: Kathleen A. Kearney, Secretary Department of Children and Family Services 1317 Winewood Boulevard Building 1, Room 202 Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700 Peggy Sanford, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Deborah Guller Department of Children and Family Services 201 West Broward Boulevard, Suite 502 Fort Lauderdale, Florida 33301 Samuel D. Lopez Samuel D. Lopez, P.A. 629 Southeast Fifth Avenue Fort Lauderdale, Florida 33301 Alan Siegel 500 Northwest 34th Street, Apartment #105 Pompano Beach, Florida 33064
The Issue Whether Petitioner's license as a family foster home should be disciplined.
Findings Of Fact In 2002, Petitioners were licensed by the Department of Children and Family Services (DCFS) as a family foster home holding License No. 01-0203-03. Petitioners provided foster services through Neighbor to Families, Inc. On May 23, 2001, Petitioner Libby Beute (Ms. Beute) parked her van in a loading zone at the Sunshine Mall. At the time, she had an infant foster child riding with her in his car seat. She was there to deliver a package. She exited her vehicle, walked to the back and opened the back hatch door. She left the keys in the ignition and the van running. The air conditioning was on when Ms. Beute took out the baby stoller and the package. She placed the package in the stroller and entered the mall to deliver the package. Mr. Dyksema was the security guard on duty at the Sunshine Mall on May 23, 2001. Mr. Dyksema saw Ms. Beute's blue van parked in a loading zone with the back hatch door opened. Even though the van was running and not knowing the infant was inside, he closed the van's back hatch door because he considered it a safety risk for patrons walking in and out of a restaurant within the mall. When the security guard closed the door, it locked all the van's doors. At least six minutes elapsed between the time he closed the van door and the time Ms. Beute came out of the mall. When Ms. Beute came out of the mall, she was very distraught, screaming, and asking why Mr. Dyksema closed the van door since the van was now locked and an infant was inside the van. Eventually, the van was opened and the child, who had slept through the whole incident, was retrieved from the car. Around June 5, 2001, as a result of a complaint that Ms. Beute left a child unattended at the Sunshine Mall, Gail Biro met with Ms. Beute. Ms. Beute was very remorseful about the incident and quite distraught during the meeting. Ms. Biro and Ms. Beute entered into a written "corrective action plan," whereby Ms. Beute agreed that children in her care would not be left unattended in her car even if the car were in full sight. Ms. Biro testified that she read the corrective action plan to Ms. Beute and that Ms. Beute, although very upset, seemed to understand the corrective action plan. Ms. Beute signed the corrective action plan. In early December 2001, Ms. Beute parked her van at an elementary school so that she could drop off one of her foster children at that school. An infant foster child was in his car seat in the van. Ms. Beute left her van with the side door open while she walked the elementary student toward class. She never lost sight of the van and was only out of the van a short time. The first incident, while the most serious and neglectful, was forgiven by her supervisor because she felt Ms. Beute would not repeat the same mistake. The second incident did not amount to neglect but is troubling because Ms. Beute, probably unthinking, violated the corrective action plan. The ability to trust her representations are now in question. Therefore, revocation is an appropriate remedy. Later Ms. Biro received a complaint from school officials reporting that Ms. Beute left an infant child in her van unattended in early December 2001, while Ms. Beute walked another foster child to class. Ms. Beute admitted to leaving the child in the van unattended only for a short time and that the van was in full sight at all times. The second incident resulted in a recommendation that Petitioners' foster care license be revoked. Ms. Beute admitted that on May 23, 2001, and early December 2001, children were left in her van unattended. However, she never lost sight of the van or the children. Ms. Beute admitted to signing the June 2001 corrective action plan, but now claims that she did not read the plan carefully and that she did not understand the plan. Other than these two incidents and even though Ms. Beute is somewhat disorganized, Ms. Beute was considered to be an excellent foster parent in caring for the children placed in her charge.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED: That a final order be entered denying Petitioners' license as a family foster home. DONE AND ENTERED this 27th day of May, 2003, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of May, 2003. COPIES FURNISHED: George P. Beckwith, Jr., Esquire Department of Children and Family Services 210 North Palmetto Avenue Suite 412 Daytona Beach, Florida 32114-3269 Thomas Beute Libby Beute 817 Bayridge Lane Port Orange, Florida 32127 Paul F. Flounlacker, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
The Issue The issue in this case is whether Petitioner’s application to adopt a minor child should be denied because it is in the best interest of the child.
Findings Of Fact Respondent, in accordance with chapters 39, 63, and 409 Florida Statutes (2013),3/ is the agency tasked with, among other things, the responsibility to deny or approve adoption applications. The minor child was born in May 2013 and placed in Petitioner’s home in that same month.4/ At all times relevant to this case, the minor child’s biological parents were unable or unwilling to take responsibility for their child. Termination of parental rights was completed in October 2013. Petitioner is the minor child’s step-grandmother. Petitioner filed an application to adopt the minor child on November 25, 2013, listing her address as 4203 East Hanna Avenue, Tampa, Florida. A home study, which is an assessment of the potential adoptive parent’s home environment, parental capacity to support the child and the relationships with individuals both inside and outside the home of the potential adoptive parent, must be conducted prior to an adoption. On November 26, 2013, the home study was conducted at the Hanna Avenue address. Several areas of concern were noted in the home study; the home was cluttered and dirty with soiled dishes in the sink and fast food bags and wrappers throughout the home. On February 11, 2014, the AARC met to review Petitioner’s application to adopt the minor child. Petitioner was present at the AARC meeting. The following concerns were expressed during the AARC meeting: Petitioner’s monthly expenses far exceed her income; Petitioner has a criminal history and is currently on probation for the last offense, and served 10 days in jail in January 2014 without telling Respondent where she was and who was attending the minor child; Petitioner has significant health issues including congestive heart failure, diabetes, high blood pressure and a bulging disc in her back; Petitioner is legally married but has been separated from her husband for over 20 years without any knowledge of whether her husband is alive or dead; and there have been multiple abuse reports, although some indicators of abuse were not substantiated. Additionally, Petitioner has moved from the residence where the home study was conducted in November. That move to a different address invalidated the home study and another home study would have to be conducted to evaluate Petitioner’s current living situation. Petitioner’s expenses, as she detailed, far exceed her income. Petitioner receives approximately $820 a month in income, yet her living expenses include $800 rent, $150 in utility services, and $50 for water. Currently, Petitioner’s two daughters and their children (each daughter has a child) live with her in a three-bedroom home. Petitioner has her own bedroom. Each daughter has her own bedroom which is shared with her child. One daughter, (B), currently works at a hotel. Daughter B supplements Petitioner’s income to run the household. However, Daughter B has indicated she wants to move out. She has not given a specific move date. The other daughter, (M), was arrested in May 2014 for allegedly stealing electricity from Tampa Electric. The charge was dropped when Daughter M paid the electrical bill and court costs. That daughter is applying for a job but is without an income to support herself and her child at this time. Respondent does not consider income from persons other than the applicant in its review of potential adoptive parent’s application. In November 2010 Petitioner entered a plea of guilty to allegations of fraudulent use of a credit card and grand theft. The circuit court in Hillsborough County withheld adjudication of guilt, but placed Petitioner on 24 months of probation with the requirement to re-pay the money and all mandatory court costs. Petitioner has been arrested three times on violation of probation (VOP) for her failure to timely pay the costs. Petitioner’s last arrest, in January 2014 resulted in a ten-day jail term for the VOP. Although Petitioner’s adult daughters were tending to the minor child, neither Petitioner nor her daughters notified Respondent that Petitioner was not available for the minor child’s needs. Petitioner anticipates paying the remainder of the costs within the next few weeks when one of her daughters receives her income tax refund. Petitioner has significant health concerns. While at work several years ago, Petitioner sustained a back injury, a bulging disc. She is not seeking rehabilitation for her back, and is not planning on returning to work. Petitioner confirmed she has a history of high blood pressure and congestive heart failure, although she is currently feeling well. Additionally, Petitioner verified that she takes insulin four times a day to control her diabetes. Petitioner married D.B. on June 28, 1993. Petitioner has obtained the form to file for a divorce, but to date no petition for divorce has been filed by either Petitioner or D.B. Petitioner has had several reports of child abuse since 1990; however, some of those reports have been unsubstantiated. Petitioner and the minor child have lived in no less than three different homes over the past year. Petitioner submitted her adoption application while residing at one home and Respondent conducted the requisite home study at that location. However, even before the AARC meeting could take place, Petitioner had moved to another home, thus voiding the home study. Petitioner’s frequent moves does not provide a stable living environment for the minor child. Ms. Spofford has worked as a guardian ad litem (GAL) for over three years. A GAL advocates for the best interest of the child and may, at times, express different advocacy positions than the biological parents, potential adoptive parents, caregivers or, as in this case, Petitioner. GAL Spofford was appointed as the minor child’s GAL approximately three weeks after his birth, and she has visited with the minor child at least once a month since that appointment. GAL Spofford makes both announced and unannounced visits to Petitioner’s home to visit with the minor child. As a small baby, the minor child was not mobile, and GAL Spofford was not as concerned about his home environment. However, the minor child is now mobile and GAL Spofford has a lot of concerns. On one particular unannounced visit, GAL Spofford was allowed into the home by a three- or four-year old child, when no adult was present.5/ GAL Spofford picked up the minor child and discovered he had a wad of paper in his mouth, which GAL Spofford removed. In this one instance alone, the supervision of the minor child and the other young children was inadequate. Based on the totality of the circumstances, GAL Spofford believes it is in the minor child’s best interest to be adopted by another family. There is no dispute that Petitioner loves the minor child. Petitioner has cared for the minor child since his discharge from the hospital. Petitioner’s witnesses were unified in their observations of how Petitioner loved the minor child and looks out for his interest. Although Petitioner wants to adopt and care for the minor child, current circumstances do not render that a viable option. Respondent has a formidable task in ascertaining the best interest of any child. It requires a look into the future and a prediction of what will happen. Petitioner’s past indiscretions do not lend themselves to a stable and secure environment for the minor child. It is in the minor child’s best interest to be adopted by someone other than Petitioner.
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 adopt the minor child. DONE AND ENTERED this 26th day of June, 2014, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 26th day of June, 2014.
Findings Of Fact The Petitioner is a single male, 39 years of age. He has been a resident of Broward County for the past six years and is self-employed in real- estate management and maintenance. He holds a master's degree from Ohio State University and is in apparent good health. In addition to about twelve traffic violations, Petitioner has been arrested for wrongful influence of a minor in 1976, and soliciting a lewd and lascivious act in 1977. The 1977 charge was dropped, but the 1976 charge resulted in a $25 fine. Petitioner's experience as a parent is limited. He did, however, provide a home to a son (born out of wedlock) for the child's final two years of high school. Petitioner met the dependent child, Richard Price, on the beach in August, 1980. Richard was then 14 years and ten months of age. After determining that Richard was "living on the street," Petitioner offered to share his condominium apartment with him. Richard accepted and remained with Petitioner until February, 1982, when he was removed by Respondent. Petitioner did not notify Respondent, who had custody of Richard, when he brought the child to his home in August, 1980. However, Respondent did not actively attempt to locate Richard and was not aware of his situation until over a year later, despite Richard's dependent child status. During his first year with Petitioner, Richard's adjustment and behavior were satisfactory. He attended high school and travelled with Petitioner on a family visit to Ohio and a group education tour to England. He gained weight and received medical attention as needed during this period. In the summer of 1981, Richard formed a relationship with another dependent child who had moved into Petitioner's condominium building. His behavior deteriorated thereafter, at least partly as a result of this relationship. On September 28, 1981, the police were called to Petitioner's residence regarding an argument between Petitioner and Richard. As a result of the police report, Respondent became aware of Richard's unapproved status. However, Respondent issued Petitioner a provisional license as a foster parent and Richard was allowed to remain in petitioner's custody. On November 6, 1981, Richard threatened Petitioner with a knife. The police were again summoned and Richard was temporarily placed in the South Florida State Hospital. On this occasion, Richard was returned to Petitioner's custody by court action. On February 6, 1982, Petitioner and Richard had an argument which culminated in a physical fight. In the struggle, Petitioner bit Richard rather severely, in what he contends was self-defense. Petitioner concedes that he bit Richard during an earlier altercation, also in claimed self-defense. As a result of the February 6 incident, Respondent removed Richard from Petitioner's custody and subsequently denied his application for licensure as a foster parent. Both Richard and Petitioner seek to resume the previous custody arrangement. Although Petitioner did not achieve a father-son relationship with Richard, he did provide a home-type setting in which Richard, for the most part, prospered. Richard is known to Respondent as having a "hot temper" and is at least partly responsible for the above described incidents.
Recommendation From the foregoing, it is RECOMMENDED: That Respondent enter a final order denying the petition. DONE and ENTERED this 28th day of July, 1982 in Tallahassee, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of July, 1982. COPIES FURNISHED: William F. Zamer, Esquire Suite 200 1421 East Oakland Park Boulevard Oakland Park, Florida 33334 Harold Braynon, Esquire District X Legal Counsel Department of HRS 201 West Broward Boulevard Ft. Lauderdale, Florida 33301 David H. Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
The Issue The issue is whether EDU Express, LLC, d/b/a The Little Engine Academy (“EDU Express”), violated Florida Administrative Code Rule 65C-22.001(11)(b)1/ by failing to report a suspected incident of child abuse.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following Findings of Fact are made: At all times relevant to the instant case, EDU Express was a Florida-licensed childcare facility owned by Joy Vaeth with 100 to 120 children under its care. The Department is the state agency responsible for licensing and regulating childcare facilities in Florida. See §§ 402.305-.311, Fla. Stat. (2017).3/ In order to fulfill its regulatory duty, the Department inspects every childcare facility three times a year. The Department will conduct an additional inspection if it receives a complaint pertaining to a particular childcare facility. The Department administers rule 65C-22.001, and subsection (11) of the rule subjects childcare facilities to discipline for failing “to perform the duties of a mandatory reporter pursuant to Section 39.201.” Such failure “constitutes a violation of the standards in Section 402.301-.319, F.S.” Section 39.201(1)(a), Florida Statutes, mandates that “[a]ny person who knows, or has reasonable cause to suspect, that a child is abused . . . shall report such knowledge or suspicion to the [Department] in the manner prescribed in subsection (2).”4/ On February 24, 2017, an employee of EDU Express inadvertently injured a child’s elbow while ending a scuffle between that child and another child. Because EDU Express maintained cameras in its facility, the incident was captured on video. After watching a video of the incident, Ms. Vaeth concluded that she was not required to report the incident to the pertinent authorities: And I – it was an accident . . . The teacher had been changing a child and off in the distance was another child hitting a child with a drumstick. And, so, the teacher picked up the child she was changing to stop that, because they’re one and – or one and a half. And went over and holding one – the child she had been changing, just lifted that child up and away from the child she was hitting so that there was no injury. And in that process the child’s arm – the elbow got this injury called Nursemaid’s elbow.[5/] So I just – in my mind we’re all – you know, talking about the – you know, what happened, and I just didn’t think of it as abuse that I needed to report to the hotline. And, even as part of my Exhibit One, this is a flyer at one point, you know, that DCF put out about signs to look for. And, again, when I read this I still don’t read this and go, oh, yeah, I should have reported that to the hotline because it was abuse. I just – I didn’t believe it was abuse. My teacher did not purposely set out to injure that child. And in the process of trying to prohibit another child from being injured she pulled the child up by one arm and that arm was injured. So – and, so, anyway, that’s just – I just didn’t connect the dots. * * * And – but I called the parents and I talked to the dad. It’s not like I tried to hide it from him. I called him and I told him what had happened. I talked to the mom the next day. Of course, they were upset. Understandably they were upset. But, again, I wasn’t – I didn’t realize that the – that I had to call the abuse and neglect hotline on situations like this. I know now. And then, as far as the parent asking me to report it, I –- I do not believe she did. And if she did, I didn’t understand it that way. And I – as part of my Exhibit Two I –- we talked on the phone, but she also texted me. And those are the only texts I have. But never once in the text messaging –- I was going back and forth a little bit with her to check on G.H. to see how she was and she never suggested that – that I understood, to call the hotline as suspected abuse. While Ms. Vaeth initially concluded that she was not required to report the incident to the Department, the child’s mother concluded otherwise and was under the impression that Ms. Vaeth was going to report the incident. Ms. Vaeth was not under the impression that the mother asked her to report the incident. The child remained under EDU Express’s care for another six months. Upon learning that Ms. Vaeth never reported the incident, the child’s mother filed a complaint with the Department on August 15, 2017. The Department then conducted an inspection of EDU Express and evaluated whether the incident amounted to an instance of abuse. Patricia Medico was the family services counselor who had been responsible for conducting the Department’s inspections of EDU Express since it opened in 2013. Ms. Medico conducted the inspection resulting from the mother’s complaint. During the course of that inspection, Ms. Medico viewed a video of the incident and described what she saw as follows: She was by herself in the classroom at the time. She had a baby in one arm. Whether the baby was upset or she had just changed it -- she had a baby in her arm and, so, she saw a situation over there. Two children fighting over – I think it was a toy drum. And reached over to move the child so, you know, it may have appeared that she was pulling the child. But as we looked at the video over and over again, that’s not what it was. She was just – she was pulling the child to safety is what she was doing and, you know, wasn’t aware that anything had happened to the child. Ms. Vaeth did remove that person from her – her position.[6/] While there is no evidence that the EDU employee intended to cause injury by grabbing the child’s arm and removing the child from the scuffle, that employee did intend to remove the child from the scuffle by grabbing the child’s arm. The child suffered some degree of harm due to the EDU employee grabbing his or her arm. There is no sufficiently detailed evidence as to whether the child’s physical, mental, or emotional health was significantly impaired by the harm suffered by the child. For example, there was no evidence regarding the severity of the child’s injury or whether she experienced any pain. Also, there is no detailed evidence about the amount of treatment that was necessary to treat the child’s condition.7/ The incident on February 24, 2017, did not result from any ambivalence on Ms. Vaeth’s part or any disregard for the welfare of the children under her care. With the exception of an earlier incident which led to the Department charging EDU Express with multiple violations, Ms. Medico was never under the impression that the children at EDU Express were in an unsafe environment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Families dismiss the Administrative Complaint at issue in this proceeding. DONE AND ENTERED this 11th day of April, 2018, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL 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 11th day of April, 2018.
The Issue The issue is whether Respondent should deny Petitioner's application for a foster parent license on the grounds that Petitioner allegedly lacks good moral character pursuant to Section 409.175, Florida Statutes (2002). (Citations to statutes are to Florida Statutes (2002).)
Findings Of Fact Respondent is the state agency responsible for licensing foster parents in Florida. By letter dated October 1, 2002, Respondent notified Petitioner that Respondent proposed to deny Petitioner's application to be licensed as a foster parent (Notice of Denial). The Notice of Denial provides that lack of good moral character is the sole ground for the proposed denial. The preponderance of evidence from Petitioner and her three witnesses shows that Petitioner possesses good moral character. Respondent bases the proposed denial exclusively on the testimony of one of Petitioner's neighbors (the neighbor). The neighbor testified during the hearing that Petitioner possesses good moral character. As far as her character, her character is outstanding, moral, cleanliness, honesty. * * * She's been my best friend for years, sister in Christ. Transcript (TR) at 56 and 59. Until a telephone conversation when Petitioner told the neighbor that Petitioner did not want to be the neighbor's friend anymore, the neighbor believed Petitioner to possess "total honesty." Since that call[,] I rescinded that . . . because I was hearing untruths[,] and I didn't want to hear it. TR at 59. Petitioner raised her two biological daughters and then raised the biological daughters of Petitioner's brother (the nieces). The neighbor testified that Petitioner had a "hard time" raising her biological children and a "real hard time" raising her nieces. A "hard time" raising children does not evince a lack of good moral character; nor does a "real hard time" raising the children of another. Rather, Petitioner's willingness to take on the financial and emotional responsibility of raising another's children after raising her own children demonstrates courage, commitment, and fortitude. Those attributes evince good moral character rather than a lack of good moral character. Respondent adduced evidence during the hearing intended to question Petitioner's parenting skills. For example, Petitioner required her biological children to read Bible scripture each morning before school and to summarize what they read. When the children became teenagers, they rebelled against Petitioner. Petitioner sent one of her daughters to live with Petitioner's ex-husband, the biological father of the daughter. Petitioner cut the hair of one of her nieces too short on one occasion. Petitioner used pushups to discipline her nieces. As the two grew older, the pushups became excessive on some occasions. The nieces would sometimes perform as many as 100 pushups without a break. Petitioner's brother used pushups to discipline his daughters before he sent them to live with Petitioner. Petitioner gave her nieces a choice between pushups and going to their room. Each niece chose pushups. The nieces were in gymnastics and were very active. Petitioner reserved excessive pushups for egregious offenses such as when a niece bit or kicked her teacher in school. Petitioner understands that a foster parent cannot cut the hair of a foster child too short, require them to read the Bible, or use pushups as a form of discipline. One of the nieces testified at the hearing on behalf of Petitioner. Her testimony was credible and persuasive. Respondent interviewed that witness during the screening of Petitioner's application. However, Respondent chose to ignore the statements of the niece and to rely solely on those of the neighbor. Respondent spent most of the administrative hearing adducing evidence of the "hard time" and "real hard time" that Petitioner experienced raising her children and her nieces. At worst, the evidence adduced by Respondent arguably may be evidence of bad parenting skills (parental incompetence). However, difficulty parenting children does not evince a lack of good moral character. The Notice of Denial states that a lack of good moral character is the sole ground for the proposed denial of Petitioner's application. The Notice of Denial does not state that parental incompetence is a ground for the proposed agency action. Respondent cannot provide Petitioner with notice before the administrative hearing that Petitioner must prove that she has good moral character and, at the hearing, require Petitioner to prove a different ground such as parental competence. To do so, would violate fundamental principles of due process.
Recommendation Based upon the foregoing Findings of Fact and Conclusion of Law, it is RECOMMENDED that Respondent enter a Final Order finding that Petitioner possesses good moral character and granting Petitioner's application to be licensed as a foster parent. DONE AND ENTERED this 2nd day of May, 2003, in Tallahassee, Leon County, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of May, 2003. COPIES FURNISHED: Richard Cato, Esquire Department of Children and Family Services 400 West Robinson Street Suite S-1106 Orlando, Florida 32801-1782 Diana Jones 1051 Jacaranda Circle Rockledge, Florida 32955 Paul Flounlacker, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700 Jerry Regier, Secretary Department of Children and Family Services 1317 Winewood Boulevard Building 1, Room 202 Tallahassee, Florida 32399-0700
The Issue The issue in this case is whether just cause exists, pursuant to section 1012.33(1)(a), Florida Statutes, for Petitioner to suspend Respondent without pay and terminate her employment as a teacher.
Findings Of Fact The Parties Petitioner is a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within the School District of Broward County, Florida, pursuant to Florida Constitution Article IX, section 4(b), and section 1001.32. Respondent has been employed as a teacher in the Broward County Public School District, pursuant to a professional services contract, for approximately five years. Before that, she was a teacher in the Miami-Dade County School System for approximately six years. During the timeframe relevant to this proceeding, the 2010-2011 school year, Respondent was employed as a language arts teacher at Driftwood Middle School. The undisputed evidence established that Respondent is a very good teacher who enjoyed excellent rapport with students and parents, did not experience discipline problems in her classroom, and was very dependable and efficient. She routinely received "highly effective" teaching evaluations ratings. Respondent is married to Darren Jones, Sr., and is the mother of three children, D.B.J., D.S.J., and D.J.J.3/ At the time of the events giving rise to this proceeding, D.B.J. was 16 years old, D.S.J. was nine years old, and D.J.J. was six years old. Events Giving Rise to this Proceeding The December 26, 2010, Incident The primary event that precipitated this proceeding occurred on or about December 26, 2010. That day, Respondent, Darren Jones, D.B.J., D.S.J., and D.J.J. went to church. After they returned home, a dispute arose between D.B.J., Darren Jones, and Respondent regarding D.B.J.'s use of Facebook and other issues related to her behavior. Over a period of approximately two years leading up to the December 26, 2010 incident, numerous disputes had arisen between D.B.J., Darren Jones, and Respondent over D.B.J.'s behavior. As a result, D.B.J. often was disciplined through both corporal and non-corporal forms of punishment. The corporal punishment typically was administered by Darren Jones—— who stands six feet, five inches tall——using a belt, and consisted of beatings ranging from minor to severe.4/ When Darren Jones administered corporal punishment, Respondent typically was present and neither objected nor intervened to stop the punishment. At the time of the December 26, 2010 dispute, the family was in the kitchen and Darren Jones was preparing dinner. As the dispute escalated, Darren Jones ordered D.B.J. to go upstairs to her parents' master bedroom to receive a beating. D.B.J. went upstairs to prepare herself for the beating.5/ At the time, she was wearing a long-sleeved shirt and jeans. Darren Jones also summoned Respondent, D.S.J., and D.J.J. to the master bedroom to witness him beat D.B.J. D.S.J. and D.J.J. were forced to witness the beating so that they would understand what would happen to them if they misbehaved. Darren Jones ordered D.B.J. to lie down on the bed. Using an extension cord, he repeatedly struck her on her hands, arms, shoulders, back, thighs, ankles, and buttocks. At some point during the beating, D.B.J. rolled off the bed and onto the floor in an attempt to escape the blows, but Darren Jones continued to strike her with the cord. During this beating, Respondent was present and witnessed the entire episode but did not intervene to stop Darren Jones from beating D.B.J. Respondent also did not excuse D.S.J. or D.J.J. from witnessing the beating. During the course of the beating, D.B.J. urinated on herself. After the beating was over, she went to the bathroom to clean herself up and run cold water over her hands to help alleviate the pain and enable her to move her fingers. Following the beating, D.B.J. was summoned downstairs for the family dinner. She testified, credibly, that she was injured to the extent that she had difficulty getting down the stairs, but neither asked for nor received assistance from anyone. D.B.J. suffered severe pain during and after the beating. As noted above, she was so traumatized during the beating that she urinated on herself. She was severely bruised and suffered cuts on, and significant swelling of, various parts of her body.6/ Her hands were so swollen that they were clenched and she was unable to fully open them or move her fingers for days after the beating. She continued to suffer swelling and pain for at least a month after the beating. At no time on December 26, 2010, did Respondent check to see if D.B.J. was injured as a result of the beating. It was not until the following day that Respondent became aware that D.B.J. had been injured, when she went upstairs to wake D.B.J. and noticed that she had not changed her clothing from the previous day. At that point, D.B.J. told Respondent she was injured and Respondent observed that D.B.J.'s skin was broken as a result of the beating. Respondent's explanation as to why she did not know that D.B.J. was injured until the following day is that D.B.J. did not tell her she was injured. Upon discovering that D.B.J. was injured, Respondent gave D.B.J. ice to put on her hands and Neosporin cream for the cuts. Respondent also provided cream to D.B.J. to treat her bruises. Respondent did not contact a physician or otherwise seek medical attention for D.B.J.'s injuries. Other Alleged Conduct There is conflicting evidence regarding whether Darren Jones beat D.B.J. in January 2011. D.B.J. testified that in early January 2011, Darren Jones beat her with a belt and that Respondent was not in the room when the beating occurred. Respondent denied that Darren Jones beat D.B.J. in January 2011. D.S.J. testified that she did not recall Darren Jones beating D.B.J. in January 2011. On balance, the evidence does not persuasively establish that Darren Jones beat D.B.J. in January 2011. However, even if it were shown that such a beating did, in fact, take place, there is no credible evidence establishing that Respondent actually witnessed the beating so as to have been in a position to intervene, had it become severe. The credible evidence establishes that Darren Jones spanked D.J.J. with a belt on December 26, 2010, for sleeping in church and hitting D.S.J. Although the evidence establishes that D.S.J. and D.J.J. may, at times, have been subject to corporal punishment administered by Darren Jones or Respondent, the evidence does not establish that such punishment rose to the level of abuse or that either child was harmed as a result of the punishment. The persuasive evidence does not support a finding that a "pattern" of child abuse existed in the Jones' household or that Respondent participated in or allowed a pattern of abuse to occur. The Investigation On or about January 6, 2011, the Broward County Sheriff's Office ("BSO") received a complaint through the child abuse reporting system regarding the alleged abuse of D.B.J. by Darren Jones.7/ As a result, on or about January 11, 2011, a BSO Child Protective Services investigator and deputy were sent to the Jones' residence. The investigator interviewed D.B.J. and observed her injuries, and ordered Respondent and Darren Jones to bring the children to the clinic for physical examination. On the evening of January 14, 2011, Respondent and Darren Jones took D.B.J., D.S.J., and D.J.J. to the Nancy J. Cotterman Center ("NJCC"), where they were interviewed and physically examined by Detective Ann Suter and Dr. Jason Shulman. Dr. Shulman is a pediatric physician who, as part of his medical practice, works with Broward County's Child Protection Team. Dr. Shulman was working at the NJCC on the night of January 14, 2011, when D.B.J., D.S.J., and D.J.J. were brought in for examination. That night, Dr. Shulman examined D.B.J. and took 101 photographs of her body as part of the investigation to determine whether she had been subjected to abuse. The photographs showed that as a result of the December 26, 2010 beating, D.B.J. had numerous scabs, marks, bruises, and scars on her hands, arms, shoulders, back, legs, thighs, ankles, and buttocks. Even though nearly three weeks had passed since she was beaten, some of the places on D.B.J.'s body where she was struck with the cord still were open or scabbed. Many of these scabs, marks, bruises, and scars were curvilinear in shape, showing the cuts and impressions left on and in D.B.J.'s skin by the looped extension cord used to beat her. The photographs also showed swelling and extensive bruising and discoloration of D.B.J.'s body, particularly on her hands, ankles, back, thighs, and buttocks. At the time of the examination, D.B.J. still was experiencing pain from the beating. Although the testimony at hearing did not precisely establish how many blows Darren Jones landed on D.B.J.'s body,8/ the photographic evidence appears to show as many as 60 discrete marks on her body made by the beating. Under any circumstances, the evidence clearly shows that the beating was not "quick" and consisted of far more than a few blows. During his examination of D.B.J., Dr. Shulman interviewed her to determine how she had suffered the injuries. D.B.J. told Dr. Shulman that she had been beaten by her father with an extension cord. After his examination and interview of D.B.J., Dr. Shulman prepared a report of findings in which he found, based on his medical examination and interview of D.B.J., that she had been severely physically abused by Darren Jones. Dr. Shulman's report recommended that D.B.J., D.S.J., and D.J.J. be removed from the home and provided safe alternative placement. On January 14, 2011, D.B.J., D.S.J., and D.J.J. were removed from the Jones home and placed in the protective custody of ChildNet.9/ On or about January 15, 2011, Darren Jones was arrested and charged with aggravated child abuse, pursuant to section 827.03, Florida Statutes (2010), for the beating he inflicted on D.B.J. on December 26, 2010. The criminal case against Darren Jones was disposed of by nolle prosequi in March 2013. In March 2011, Respondent was arrested and charged with three counts of neglect of a child, pursuant to section 827.03(3)(a). The criminal case against Respondent was disposed of by nolle prosequi in March 2013. In September 2011, after Respondent and Darren Jones had received individual and family counseling, D.S.J. and D.J.J. were returned to reside in the Jones' home. The Circuit Court of the Seventeenth Judicial Circuit in and for Broward County, Florida, Juvenile Division, determined in Case No. 2011-471 CJ-DP(A) that, pursuant to section 39.01(2), Florida Statutes, Darren Jones physically, emotionally, and/or mentally abused D.B.J. by beating her with an extension cord.10/ The court ordered that D.B.J. be permanently removed from the Jones home and placed in foster care with the Department of Children and Families. D.B.J. remained in foster care until she no longer was a minor.11/ The Final Hearing At the final hearing, Respondent claimed that in hindsight, she would have stopped Darren Jones' beating of D.B.J. had she known that he was going to use a cord or that D.B.J. would suffer continual pain as a result of the beating. Respondent claimed that she did not intervene at the time because, based on her own childhood experiences of being beaten by her mother, she did not view the beating rendered by Darren Jones on D.B.J. as constituting child abuse. Even after seeing the photographs of D.B.J.'s injuries taken by Dr. Shulman almost three weeks after the beating, she did not characterize it as "severe." Respondent testified that had the beating gone on for what she considered an "excessive amount of time," she would have intervened. She characterized the beating as, rather, "a very quick discipline." Respondent and her husband act as a team in raising their children and support each other, rather than intervening and undercutting each other, in disciplining the children. Respondent testified, credibly, that she is not afraid of her husband and does not believe he would have hit her had she intervened to stop the beating of D.B.J. Respondent expressed regret at the turn of events resulting from the beating. She is sorry that D.B.J. was injured by the beating, and clearly is sorry about the consequences of the beating——the arrests of her and Darren Jones, her husband's job loss and resulting financial difficulties, loss of their home and car, and loss of custody of their children for a period of time. The sole evidence regarding the notoriety element of the immorality charge against Respondent consisted of a general statement by Driftwood Middle School principal Steven Williams that he was aware of the allegations regarding Respondent "based on the media" but was not familiar with the details of the case; no specific evidence was presented regarding the notoriety of Respondent's conduct. The record also is devoid of evidence showing that Respondent's conduct brought her or the education profession into public disgrace or disrespect and impaired her service in the community. Findings of Ultimate Fact In this proceeding, Petitioner seeks to suspend Respondent without pay and terminate her employment as a teacher on the basis of just cause,12/ pursuant to section 1012.33(1)(a), and Florida Administrative Code Rule 6A-5.056.13/ As more fully addressed below, Petitioner bears the burden of proof, by a preponderance of the evidence, to establish each element of each offense with which Respondent is charged. Also as more fully addressed below, the determination whether Respondent committed the charged offenses is a question of ultimate fact to be determined by the trier of fact in the context of each alleged offense. Immorality Based on the evidence presented, it is determined that Petitioner did not prove that Respondent's conduct amounted to immorality, as defined in rule 6A-5.056(2). There is no question that Respondent's conduct was inconsistent with the standards of public conscience and good morals. It is hard to envision that, absent duress or imminent threat, a person having a conscience and being of good moral fiber could witness his or her own child being severely beaten with an extension cord and not intervene to stop the beating—— regardless of the circumstances that precipitated the beating. This is particularly the case when that person is entrusted in his or her professional life with ensuring the safety of children. It is also hard to envision that a person having a conscience and being of good moral fiber would force nine- and six-year-old children to witness the beating. However, the evidence does not establish the existence of the other elements necessary for a finding of immorality under rule 6A-5.056(2). Although there is some evidence generally establishing that there was media coverage of Respondent's removal from her employment position, no specific evidence was presented regarding coverage of her underlying conduct. Thus, there is no evidence from which the undersigned can infer "notoriety." Further, Respondent's conduct took place in a completely private setting——her own home. Under these circumstances, impairment of service in the community cannot be inferred and must specifically be shown by the evidence.14/ Here, the record is devoid of such evidence, so the undersigned cannot infer that this element is met. Accordingly, it is determined that Respondent did not engage in conduct constituting immorality under rule 6A- 5.056(2). Moral Turpitude It also is determined that just cause does not exist under section 1012.33(1)(a) to suspend and terminate Respondent on the basis of moral turpitude. Unquestionably, Respondent's conduct in choosing not to intervene to stop Darren Jones' severe beating of D.B.J. with an extension cord, and in forcing her two younger children to watch their sister suffer the beating, involved acts of baseness, vileness or depravity in the private and social duties, which, according to the accepted standards of the time a man owes to his or her fellow man or to society in general. The undersigned rejects Respondent's claims that Darren Jones' beating of D.B.J. was a "quick discipline." The photographic evidence, supported by Dr. Shulman's testimony, establishes that D.B.J. was struck with the cord numerous times ——perhaps as many as 60, based on the photographic evidence——and in any event, more than 30 times. The sheer number of blows to D.B.J.'s body belies any credible claim that the beating was of short duration; this beating took place over a period of minutes. Respondent had more than ample time to intervene, but chose not to. Further, she subjected her two very young children to mental trauma by forcing them to witness their sister being beaten. The undersigned also finds incredible Respondent's claim that she did not perceive Darren Jones' beating of D.B.J. as severe when it occurred. Darren Jones is a large man, approximately six feet, five inches tall. Using an extension cord, he struck D.B.J. numerous times with such force that even through her jeans and long-sleeved shirt, D.B.J. was so severely lacerated and bruised that almost three weeks later, she still was experiencing pain and bruising and her wounds had not fully healed. Respondent's conduct in standing by and watching a sixteen-year-old girl receive such a severe beating without intervening, while forcing nine- and six-year-old children to watch, is indicative of baseness, vileness or depravity in the private duties, which, according to the accepted standards of the time, a man owes to his or her fellow man. However, as more fully discussed below, section 1012.33(1)(a) requires, for a finding of just cause on the basis of moral turpitude, that the person be "convicted of or found guilty of, or [enter] a plea of guilty to, regardless of adjudication of guilt, any crime involving moral turpitude." § 1012.33(1)(a), Fla. Stat. (2010). Here, the criminal charges against Respondent were disposed of by nolle prosequi. She was not convicted of or found guilty of, and did not enter a plea of guilty to, any crime involving moral turpitude. Accordingly, the undersigned is constrained to find that just cause, pursuant to section 1012.33(1)(a), does not exist to suspend Respondent without pay and terminate her employment on the basis of moral turpitude.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Broward County School Board, enter a final order finding that there is no just cause, pursuant to section 1012.33(1)(a), Florida Statutes, to suspend Respondent without pay and terminate her employment; reinstating her employment as a teacher with the Broward County School System; and awarding back pay commencing on the date of her suspension. DONE AND ENTERED this 15th day of July, 2014, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS 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 15th day of July, 2014.
The Issue Whether the Petitioner is entitled to renewal of a foster care license.
Findings Of Fact Petitioner, Betty Stewart, was licensed by the Department to operate a foster care home on August 5, 1991. Thereafter, until the instant matter arose, Petitioner received a renewal of this license. On August 18, 1997, the Department notified Petitioner that her license would not be renewed. The decision was based upon Petitioner's alleged failure to meet the minimum standards for foster parenting. More specifically, the denial alleged concerns with Petitioner which included: Standard housekeeping standards. Counselors have reported that your home was not kept clean. They noted a stale odor, and observed clothes piled up and roach infestations. Lack of stability in housing. The licensing record indicates that you have had at least five different residences since you were licensed in 1991. Constant moving does not provide stability for the children placed with you. Inadequate medical care for a child in our home. The counselor for a child who had been in your home indicated that you failed to get timely dental care for a child in your home that resulted in the child needing to have a tooth extracted. Additionally it was reported that you did not follow-up with getting a dermatologist's prescription filled for this same child. Concerns that your son was dealing in illegal drugs. While your son did not live with you, he was in and out of your home and having contact with the foster children in your home, which in fact could have a potentially negative impact on them. You did admit to Laura Williams, the foster parent liaison, that you were aware that he was dealing drugs. During the time of Petitioner's licensure, she was licensed at five different locations. That is, she moved from one property to another and relicensed the new location, five times in six years. Additionally, during the time of licensure, Petitioner received a "provisional license" on four occasions. A provisional license is issued when the applicant must take additional measures to comply with all licensure requirements. On four occasions the Department worked with the Petitioner so that she would obtain licensure. For each license, Petitioner executed an agreement to provide substitute care for dependent children as prescribed by the Department. This agreement required Petitioner to comply with all rules implemented for foster care homes and specifically required Petitioner to report any illness of a child to the Department. In one instance, the Petitioner failed to seek immediate dental care for a child placed in her home. The dental problem was made known to the Department when the child was caught shoplifting Oragel, an over-the-counter product used to relieve toothache. Petitioner also did not compel a child to attend counseling sessions with a licensed therapist. Petitioner was responsible for assuring that the child be given transportation to and from such sessions. Although limited to two children by license restriction, Petitioner typically had more than two children placed in her home. Given the shortage for foster care homes, the Department routinely waived the limit and placed additional children with Petitioner even though she was ill-equipped to deal with the extra children. The Petitioner's son, who is now deceased, did not reside with Petitioner during the final licensure period. Although he resided in the community near her home, there is no evidence to support a finding that he was dealing drugs from the licensed premises.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a Final Order denying Petitioner's request for license renewal as a foster care home. DONE AND ENTERED this 13th day of March, 1998, in Tallahassee, Leon County, Florida. J. D. Parrish Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 13th day of March, 1998. COPIES FURNISHED: Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard A. Doran, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Colleen Farmsworth Assistant District Legal Counsel Department of Children and Family Services 111 South Sapodilla Avenue Suite 201 West Palm Beach, Florida 33401 Betty Stewart, pro se 812 Foresteria Drive Lake Park, Florida 33403
The Issue Should Petitioner revoke the foster home license held by Respondent for the alleged use of excessive corporal punishment against a foster child cared for in Respondent's home?
Findings Of Fact In accordance with Section 409.175, Florida Statutes, Petitioner licenses family foster homes. At times relevant to the inquiry Respondent has held a family foster home license issued by Petitioner. As a condition of her licensure as a foster parent, Respondent received training in Model Approach to Partnerships and Parenting (MAPP). The MAPP training addressed the imposition of discipline directed to foster children in Respondent's care. The disciplinary policy included a prohibition against disciplinary practices involving corporal punishment. In particular the disciplinary policy prohibited slapping or spanking a child. (DCF Exhibit No. 9) By signing a copy of that disciplinary policy Respondent acknowledged her understanding and agreement to abide by those terms on May 28, 1999. Generally, by stipulation between counsel, Respondent concedes the existence of the policy prohibiting slapping or spanking a child in her care. Ms. Stacey Cleveland has responsibility in Petitioner's District 3 related to foster home licensing. Ms. Cleveland provided MAPP training to Respondent, including training on discipline and the prohibition against the use of corporal punishment. In 1997, Ms. Cleveland had a specific discussion with Respondent concerning the prohibition against the use of corporal punishment in caring for foster children. At that time Respondent stated her agreement with the prohibition against the use of corporal punishment directed to foster children. From April 23, 1999, through December 30, 1999, A.H. and B.H. lived in Respondent's home as foster children. On December 30, 1999, A.H. was three years old and B.H. was five years old. On December 30, 1999, A.H. and B.H. were involved in a supervised visit with their natural mother at the Petitioner's Live Oak, Florida office. During the visit the natural mother took A.H. to the bathroom and discovered bruises on his buttocks. The natural mother immediately reported the discovery to Petitioner's personnel. Julia Johnson and Steven Lampros, Petitioner's employees, both observed the bruises on A.H.'s buttocks. Mr. Lampros took photographs of the bruises. (DCF Exhibits Nos. 4 through 6) Respondent caused the bruising to A.H.'s buttocks by imposing corporal punishment on A.H. at a time prior to December 30, 1999. This act was contrary to the prohibition against the use of corporal punishment by spanking. Respondent knowingly violated those terms. Respondent's testimony that A.H. may have received the bruises by jumping off the sofa and falling on the wooden arm of that furniture; jumping off the sofa landing on his buttocks on the floor; being pushed by another foster child from a toy jeep or being pushed against the bathroom door by B.H., his brother, is not persuasive. The finding that A.H. was bruised on his buttocks when Respondent spanked him is corroborated by the deposition testimony of Dr. Howard Rogers, a Board-Certified physician in general pediatrics. Dr. Rogers routinely examines children who are the alleged victims of abuse. Dr. Rogers examined A.H. on December 30, 1999. He recalls the examination based upon his report rendered concerning the examination and the photos made by Mr. Lampros on December 30, 1999. Dr. Rogers does not believe that the bruises on A.H.'s buttocks were accidental in nature given the intensity of the bruising and the linear shape of some of the bruises. Within a reasonable degree of medical certainty Dr. Rogers did not find the bruises to be consistent with any form of trauma other than corporal punishment. According to Dr. Rogers corporal punishment was the more likely cause of the bruising. Dr. Rogers' opinion concerning the appearance of the bruises is credited.
Recommendation Upon consideration of the facts found and the conclusions of law reached, it is RECOMMENDED: That Petitioner enter a final order revoking the family foster home license held by Respondent. DONE AND ENTERED this 9th day of November, 2000, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of November, 2000.
