The Issue Whether Petitioner's application for a foster care license should be granted.
Findings Of Fact Petitioner, Joan Henry (Ms. Henry), was licensed by Respondent, Department of Health and Rehabilitative Services (HRS), as a foster parent in 1992. She continued to be licensed until sometime in 1994. The foster home was officially closed September 19, 1994. She applied for relicensure as a foster parent, and her application was denied by HRS. During the time relevant to this proceeding, Ms. Henry cared for five foster children, B.W., S.W., S.A.W., T.W., and T.B. Ms. Henry's adult daughter, Jiliane, lived with Ms. Henry during this time. Jiliane took care of the children while Ms. Henry worked during the day. HRS was aware of this arrangement. On May 25, 1994, Ms. Henry signed an Agreement to Provide Substitute Care for Dependent Children for the five children in her care. Ms. Henry agreed to abide by the following provisions of the agreement. 2. We are fully and directly responsible to the department for the care of the child. * * * 6. We will not give the child into the care or physical custody of any other person(s), including the natural parent(s), without the consent of a representative of the department. * * * 11. We will notify the department immediately of any change in our address, employment, living arrangements, family composition, or law enforcement involvement. * * * 15. We will comply with all requirements for a licensed substitute care home as prescribed by the department. In late June, 1994 or early July, 1994, Ms. Henry received a call that her mother's best friend had died in London, England. Ms. Henry went to London. Ms. Henry could not get in touch with an HRS representative and asked Jiliane to notify HRS that she had been called out of the country unexpectedly. Jiliane failed to notify HRS. Ms. Henry was in London for several weeks. On July 5, 1994, HRS received a call that the Ms. Henry's children had been watching pornographic films in the Henry home and that the children were exhibiting inappropriate sexual behavior. A child abuse investigator visited the Henry household and found that Ms. Henry was away in London and that the children had been left in the care of Jiliane. Prior to leaving for London, Ms. Henry was unaware that Jiliane had pornographic films in the house. Ms. Henry did observe B.W. watching television in Jiliane's room. When Ms. Henry would go by the room, B.W. would quickly switch channels. This happened on numerous occasions. Ms. Henry was "very concerned" and "suspicious" about B.W. changing the channels each time Ms. Henry walked by, but she took no action to investigate the cause of B.W.'s behavior. After Ms. Henry returned from London, she learned that Jiliane did have some pornographic films which she kept in her room. B.W. had access to the films and did view them. Rosalyn Jackson is a licensed foster care parent. She was interested in adopting at least one of the children in Ms. Henry's care. She visited the children in Ms. Henry's home and would take the children to her home on weekends. While the children were in her home, she observed that the children used vulgar language. S.A.W. would try to kiss or touch Ms. Jackson's rear when Ms. Jackson would bend over to pick up something. B.W. would go into the bathroom and fondle herself. T.W. and S.A.W. would try to fondle each other. At that time B.W. was nine years old, S.A.W. was four, and T.W. was three. The children were removed from Ms. Henry's home. Two of the children were placed with Ms. Jackson's sister and one of the children was placed with Ms. Jackson. Ms. Jackson described the children as undernourished. T.W.'s hair was unkempt and dirty and looked as if it had not been cut or washed for a long time. When Ms. Jackson's sister had T.W.'s hair cut and washed, it was discovered that T.W.'s scalp was covered with a fungus. T.W.'s ears contained "black gook" which appeared to have been in his ears for quite a while. S.A.W. was wearing shoes that were two sizes too small.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Joan Henry's application for a foster parent license. DONE AND ENTERED this 14th day of September, 1995, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of September, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-3042 To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Respondent's Proposed Findings of Fact. Paragraphs 1-2: Accepted in substance. Paragraph 3: Rejected as not supported by the evidence. Ms. Henry testified that B.W. would switch channels not Jiliane. Paragraphs 4-5: Accepted in substance. Paragraph 6: Accepted in substance as it applies to the child, B.W. Rejected as to the other children because the only evidence presented was hearsay. Paragraphs 7-8: Accepted in substance. COPIES FURNISHED: Colleen Farnsworth, Esquire Department of Health and Rehabilitative Services 401 Northwest 2nd Avenue, Suite N-1014 Miami, Florida 33128 Ms. Joan Henry 18601 Northwest 22 Court Miami, Florida 33056 Robert L. Powell, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Kim Tucker General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue is whether the license of Rev. Harris to operate a foster home should be terminated by the Department for the reasons stated in the Department's letter of October 7, 1988.
Findings Of Fact The Reverend Melda Harris provided foster care to children in the custody of the Department of Health and Rehabilitative Services (the Department). She became the foster parent of four siblings, Clive Davidson (born 9/30/78), Iman Davidson (born 1/1/80), Joy Davidson (born 7/24/81), and Lucky Davidson (born 12/2/83). The older children had been placed with Rev. Harris in 1985, the younger two were placed with Rev. Harris in 1987. The Davidson children had been abused by their natural parents and had been removed from their care; the extent and nature of the abuse is not clear from the testimony. A letter from Howard Marcus and Dr. Harvey Parker to the Department dated June 21, 1988, indicates that the natural parents were physically violent, the parents were frequently separated, and that ultimately the natural parents disappeared. The oldest sibling, Clive, was approximately 9 years old. He was being seen by a therapist, Art Jones, M.S.W., who was of the opinion that Clive should be separated from his siblings because of aggressiveness (physical violence), but especially because he had attempted on at least two separate occasions to simulate intercourse with his seven year old sister, Joy, while clothed. Therapy at the Henderson Mental Health Center was terminated because the therapist was of the opinion that Clive's sexual problems and propensity to act out further with his sister could not be dealt with effectively while he remained in the same home as his sister. According to Dr. Parker and Mr. Marcus, Clive engaged another little girl in simulated intercourse with him. On that occasion, both were unclothed. Joy Davidson was in treatment at the Broward County Sexual Assault Treatment Center due to her experiences with Clive. Rev. Melda Harris is a deeply religious woman who brought all the children up in a religious atmosphere. The children were actively involved in Massonic organizations where they interacted with other children. Rev. Harris selected the movies the children would watch, and generally they would watch a religious television station in the Broward County area (Channel 45), although they were not exclusively limited to that form of television. The children were also seen regularly by Ann E. Vaughn, who was their guardian ad litem for a period of four years before they were placed with Rev. Harris. Ms. Vaughn continued in that role after their placement in the Harris foster home. Ms. Vaughn would visit the home without prior appointments, there is no reason to believe that what Ms. Vaughn saw was not typical of the interaction of Rev. Harris and the children at the foster home. Ms. Vaughn was of the opinion that all the children had love and affection for Rev. Harris and that she did not concentrate her affections only on the youngest child, Lucky. The children generally stayed in the fenced-in yard at the Harris home because drug activity in the neighborhood made it unsafe for them to play in the street and because of the heavy traffic in the street outside the home. Ms. Vaughn was also worried the children's natural father would occasionally slip into the area, and Rev. Harris was concerned about leaving the children outside out the fenced area of the residence due to fear that the father might try to kidnap them. The most serious problem which the Department had with Rev. Harris occurred on August 10, 1988, when she came to the HRS office with Clive, and asked to return him to HRS custody. The Department was adamant that if she was not willing to keep Clive, the Department would remove the other children from her home in order to keep the siblings together. The Department staff took offense at Rev. Harris' action. In view of the serious consequences which could arise from further incidents of sexual acting out by Clive against his younger sister, Joy, it was entirely appropriate for Rev. Harris to be concerned about his remaining in the home, especially when the social worker assigned as Clive's therapist had resigned from the case in May of 1988 out of a belief that "Clive's sexual problems and propensity for further acting out in that manner, could not be effectively dealt with so long as he remained in the same home as his sister." (Respondent's late-filed exhibit, page 4, letter of June 21, 1988, from Howard Marcus and Harvey C. Parker, Ph.D., to Deborah Owens.) It is also significant, however, that Rev. Harris' decision to return Clive to HRS is not listed as one of the grounds the agency cited in its October 7, 1988, letter stating the Department's decision to close Rev. Harris' foster home.
Recommendation It is recommended that a final order be entered by the Secretary of the Department of Health and Rehabilitative Services dismissing the allegations contained in the letter of October 7, 1988, which forms the basis for the Department's notice of intention to close Rev. Harris' foster home (and implicitly to revoke her license to operate a foster home), and that her license be fully reinstated. RECOMMENDED in Tallahassee, Leon County, Florida, this 23rd day of July 1992. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of July 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-1338 Rulings on findings proposed by the Department: The description of the children is adopted in Finding of Fact 1. The description of Ms. Andrews is rejected as unnecessary. Generally rejected because the question whether the children were allowed to eat is not at issue based on the charging document the Department mailed to Rev. Harris. Based upon the testimony of the Department's witnesses, I do not, believe that the children were not allowed to eat for an entire day, although the children may have said that. Whether the children were allowed to play outside the home and were restricted to viewing a religious television station are discussed in Findings of Fact 3 and 4. and 4. Rejected as unnecessary and irrelevant to the charges filed. The "additional concerns" are not appropriate because they are not the basis for the charge filed. Moreover, locking the children in their bedrooms was a misguided but understandable precaution given the concern about sexual acting out by Clive. The children were permitted to play outside, in their yard, and they did visit with other children especially at religious functions they attended, and at school. The children were not limited to watching a religious television channel. See, Finding of Fact 3. The allegation that Rev. Harris showed favoritism to Lucky is rejected. See, Finding of Fact 4. Precisely what it means to "speak poorly to the natural parents in front of the children" is not clear (Department proposed finding 5E). It is unreasonable to believe that the family unit could have been strengthened. The relationship with the children's natural parents has been severed by their adoption, and the removal from the custody of the natural parents appears to have been entirely appropriate. Similarly, the allegation that statements made by Rev. Harris "created concern" is difficult to understand, since there is no indication that there is any legal standard to be applied which forbids conduct by foster parents which "creates concern" among Department staff. Obviously Clive had serious problems, over and above his sexual problems, as indicated by the records placed in evidence. Surely Rev. Harris was not required to ignore instances of lying or stealing. It is by no means appropriate to conclude that Rev. Harris breached "a confidentially standard" (whatever that might be) because Ms. Johnson-Gilcort wrote that Clive "rape his sister and was no good." Ms. Johnson-Gilcort did not testify, and is not clear that Ms. Johnson-Gilcort's characterization of Clive in the letter had its source in Rev. Harris. Adopted in Finding of Fact 5. Rejected as inconsistent with the charging document, the October 7, 1988, letter. The issues for hearing were not framed in the letter dated September 12, 1988. Rejected as irrelevant to the issues framed for hearing. 9 and 10. Adopted in the Preliminary Statement. Generally adopted in the Preliminary Statement. Adopted in the Preliminary Statement, although this is not an "appeal." The testimony of Rev. Harris is addressed and generally adopted in Finding of Fact 5. Rejected as argument and irrelevant. The question is not whether Ms. Harris received a letter of August 11, 1988, but whether the Department could prove the allegations made in its letter of October 7, 1988, which it drafted, and which framed the issues for hearing. Generally adopted in Finding of Fact 4. 16 - 18.Rejected as unnecessary. COPIES FURNISHED: Jacqueline S. Banke, Esquire Department of Health and Rehabilitative Services 201 West Broward Boulevard Room 513 Fort Lauderdale, Florida 33301-1885 Rev. Melda Harris 681 N.W. 37th Avenue Lauderhill, Florida 23311 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Slye, Esquire General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue is whether Petitioner may revoke Respondent's foster home license for her use of corporal punishment in violation of Rule 65C-13.010(1)(b)5.f, Florida Administrative Code.
Findings Of Fact Respondent has been a mother for 45 years. Five years ago, she became a foster parent because her children were grown and other children needed homes. As a foster parent, Respondent has cared for more than a dozen foster children. Due to an unrelated incident in the summer of 2001, Petitioner's representative counseled Respondent about the prohibition against the use of corporal punishment against foster children. At that time, Respondent signed a Therapeutic Foster Care Agreement, statement of Discipline Policy, and Agreement to Provide Substitute Care for Dependent Children. Each of these documents restates the prohibition against the use of corporal punishment. In March 2002, Respondent took her 10-year-old foster child in her care to a McDonalds restaurant to meet his mother, who had been forced to place him in foster care due to his aggressive behavior. The mother and her three daughters were at a table with Respondent, the foster child, and another child. The foster child began to misbehave and Respondent warned him that she was the law and, if he failed to behave, she would drop him off at the detention center. Respondent is a uniformed crossing guard and is employed by the St. Lucie County Sheriff's Office. In response to Respondent's warning to behave, the child replied, "You're not the law. You're just a crossing guard." Respondent slapped the foster child in the mouth. The force of the slap to the mouth did not cause the child to cry, but did leave a red mark. The mother reported the incident to Petitioner. In dealing with cases of corporal punishment administered to foster children, Petitioner does not invariably revoke the foster parent's license. Instead, Petitioner attempts first to determine the likelihood that the foster parent can be rehabilitated so as not to use corporal punishment. Among the factors justifying revocation are that Petitioner had recently reinforced the corporal punishment prohibition with Respondent, Respondent displayed a blatant disregard or ignorance of the policy by striking the child in front of his mother, and Respondent falsely denied the incident during the course of the investigation and at the hearing. In some respects, the last factor is the most serious because Respondent's lack of candor and remorse for the incident undermine the trust that Petitioner necessarily places in foster parents whom it licenses.
Recommendation It is RECOMMENDED that the Department of Children and Family Services enter a final order revoking Respondent's foster home license. DONE AND ENTERED this 12th day of December, 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 12th day of December, 2002. COPIES FURNISHED: Paul 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 204B Tallahassee, Florida 32399-0700 Laurel Hopper District 15 Legal Counsel Department of Children and Family Services 337 North 4th Street Fort Pierce, Florida 34950 Lyn Carswell, Qualified Representative 2101 Avenue P Fort Pierce, Florida 34950
Findings Of Fact At all times pertinent to the allegations herein, the Petitioner, Department of Health and Rehabilitative Services, (Department), was the state agency responsible for the maintenance of a register of reports of abuse and neglect of children, the elderly and the disabled in Florida. Respondents, Clifford and Nancy Stephan operated a foster care home for children in St. Petersburg, under license issued by the Department. On August 13, 1993, J.B., a 2 1/2 year old boy, was placed as a resident in Respondents' foster home. J.B. is described as a rambunctious child who demonstrated behavioral problems but who had no documented clinical problems. The placement was made by Teresa Harris, a child protective investigator for the Department who, when she delivered the child, spent a lot of time with the Respondents describing him and his problems. The care packet she left with the Stephans did not, however, have his Medicaid card included with it. Without that card, the Stephans could not get medical care for the child under Medicaid. At the time he was delivered to the Stephans, J.B. had been abandoned and abused. He had some scars, (cigarette burns), and old abrasions as well as the normal lumps and bruises which might be expected on an active child of his age. After the placement, follow-up visits were made by either Early Service Intervention personnel or by Ms. Harris who indicated that some time during the following week, the Medicaid card was to be delivered by ESI. It was several weeks after the placement, however, before the card was actually delivered and during that time, Ms. Stephan made repeated requests to Department personnel for it. At the time of delivery, it had only 10 days remaining validity. According to Ms. Harris, during the week of September 20, 1993, Mrs. Stephan called, upset, saying that J.B. was acting up and had hurt himself when he dove into the couch and hit his face on a bar running across the back, giving himself a black eye. According to Ms. Harris, Mrs. Stephan also stated that they had had to lock J.B. in the bathroom when he became excited and had bruised himself when he hit himself on the toilet paper holder or rolled around on the floor. Mrs. Stephan categorically denies having placed J.B. in the bathroom, much less locked him there, and claims he would go in there himself for solitude and remain so long, they had to call him out. She notes the bathroom door does not lock from the outside - only from the inside. Taken as a whole, it is found unlikely that the Stephans would lock or even confine in any way a child as young as J.B. in a bathroom, the one room in the home where there is little softness but an abundance of hard, potentially injurious surfaces on which he could hurt himself. As a result of Mrs. Stephan's call, Ms. Harris went to the Stephan home on September 22, 1993 where, she claims, she asked Mrs. Stephan if she wanted J.B. removed from the home. According to Mrs. Harris, Mrs. Stephan said she did, but, again, Mrs. Stephan denies she was asked or indicated she did want him out. Ms. Harris also states that when she arrived at the home, early in the morning, she found J.B.'s things already packed and waiting. At this point, Ms. Harris observed an altercation between Mrs. Stephan and her eldest son in which the boy spoke rudely and provocatively to his mother. Mrs. Stephan did not respond in kind. At this same time, Ms. Harris also noticed that J.B. had two black eyes and bruises on his back. She already knew of the black eyes as a result of Mrs. Stephan's report of his dive into the sofa, but he also had on his back oddly shaped round bruises which concerned her. She told Mrs. Stephan she would have to call in and report the bruises and that Mrs. Stephan should expect an inquiry into how the child got them. Ms. Harris took J.B. from the Stephan home that day, taking him to her office where she showed the bruises to her supervisor. During the ride from the home to the office, she asked J.B. how he got the bruises and, she relates, he stated "Cliff did it." Other witnesses who discussed the bruises with the child, including Dr. Morris with the child protective team, indicate that J.B. indicated that "Charlie" did it. In light of the inconsistency, it is found that J.B. did not accuse "Cliff", (Mr. Stephan), but, more likely, "Charlie", another, also very aggressive foster child living in the home. That same day, the child was examined by Dr. Morris who discovered some of the old bruises he had noted in a prior examination conducted on August 4, 1993, before the child was placed with the Respondents. The doctor also noted some new bruises, however, on the face and on the back. The bruise on the face was consistent with the story told regarding the dive into the couch and could well be accidental. The bruises on the child's back were, however, in the doctor's opinion, consistent with an inflicted injury, (child abuse). These bruises were linear, uniform in shape and dimension, and not likely to have resulted from an accident. They are not compatible with either tumbling exercises on a hard floor or bites. Their location on the body supports that conclusion. The most common cause of this type of injury is a beating by a belt or cord. While it is hard to tell the age of the person who may have inflicted these bruises, they are not characteristic of play between young children. No evidence was presented to indicate how the bruises were actually inflicted. Their cause is unknown. The child does not indicate in any way that either Respondent administered them. Immediately after the report concerning J.B.'s bruises was filed, an investigation was conducted into the incident by a representative of the Department. At the time, there were at least 5 foster children in the home, including J.B.. The others were R.M., age 11; his sister, Sunshine, age 9; C.J., age 2; N.K., age 1; and T.H., age 1 1/2. All these children were removed from the home pending investigation. The investigation, when completed, failed to indicate who inflicted the bruises to J.B.'s back or how they were inflicted. The report was, therefore, closed without classification. Nonetheless, by letter dated November 23, 1993, the Department notified the Respondents that while they might again use their home for the shelter of children, only children 10 years of age and older would be allowed. This was unsatisfactory to the Stephans who are most drawn to the younger children. The Department's restriction was based on the conclusion that the Stephans showed favoritism to some of the children placed with them and on the assertion that certain children, about whom the Stephans had noted aberrant behavioral actions, ceased that behavior when removed from the Stephan home. Mr. Bonollo, the child protective officer who picked J.B. up at the Respondents' home and took him to the Department office noted that Mr. Stephan was quite upset by the removal of the children from the home. When he asked why this action was being taken, Mr. Stephan was told that it was standard Department procedure when an allegation of abuse is made. Mr. Davis, the Gardian ad Litem volunteer who is responsible for J.B., felt from the very beginning of the placement that Respondents did not like the child. They consistently complained about him, noting he didn't have proper clothing or proper paperwork, and Davis felt they liked the other children in their care more. He specifically concluded that N.K. and C.J. were more to the Respondents' liking and received more attention and affection from them. He admits, however, that from his observation, the Respondents were no more harsh in their approach to J.B. than to the other children. Since J.B. was removed from the Respondents' home, he has been doing much better, but he is also six months older than he was at the time he lived there. This might have something to do with the change. According to Ms. Cremer, the protective services worker who oversaw the Respondents' operation, all the children there were given adequate care, food and attention. There seemed to be a good bonding and affection shown by Respondents to the younger children, however, to whom this witness also feels they showed favoritism, blaming J.B. for things the younger ones did. She was bothered by the fact that the Respondents discussed the older children's behavior in their presence, commenting about destruction of property, wasting of food, and cutting the bed with a knife, for example. While she never saw any physical abuse by either Respondent, Ms. Cremer felt their reporting of the older children's misconduct was abuse. Respondents deny showing any favoritism to any child though there is some indication they wanted to adopt C.J.. Departmental policy in cases of this nature, where abuse is alleged and the report is later closed without classification, is to submit a copy of the report for review by an administrator who can, and did here, make the decision to restrict the age and type of children who can be accommodated in a foster home. The decision to restrict children to those 10 and up was made in this case because there were issues in doubt regarding the care of the children even though there was no confirmed report of abuse. Authority for the Department to make that decision is found in Rule 10M-6.025, F.A.C.. The decision was made to place with Respondents only children who were more verbal and more visible and better able to report what happened to them. Here, since so many of the children in the home were unable to accurately verbalize and tell the story, and because the licensing investigator recommended no children under 10, the file was forwarded to L. Britt, a Senior Operations Program Administrator who made the ultimate decision on the restriction. That decision was made on the basis of the report of investigation, the meeting with staff members, the family dynamics, and the increased risk factor for children under 10. Both Departmental rules and pertinent statutes require foster parents to immediately report any injuries to children and this was not done here. Since the decision to restrict as to age was made, the initial restriction against all children has been removed and Respondents have been offered foster children who meet the criteria set in the remaining restriction. Respondents have refused, however. Child care experts from agencies other than the Department, who are familiar with Respondents and how they operate their foster home, indicate Respondents are caring and responsible parents. Their home is set up for children who are treated like family. Mr. Stephan, though big, is not intimidating. In discipline he was firm but not frightening. They impressed Debra Dahl, a representative of the Pinellas Association for Retarded Children, which placed four children with Respondents since 1991, as being caring, very nurturing and very aware of the children's needs. Any children she has placed with Respondents have thrived. Mrs. Stephan worked with children for 9 years while residing in New York, and after moving to Florida, became a substitute care provider for a day care center. She has been licensed as a foster parent, with her husband, for 4 years. They have taken the required training and attend continuing education courses in the field. It has been Mrs. Stephan's experience that most children act up a bit when they come to a new home. Usually, however, the aberrant behavior abates after a while. Prior to the arrival of J.B., the only report of bad behavior the Stephans made was concerning S.M. They also, at one time, had a foster child run away from the home and report abuse, but upon investigation by the Department, the report was classified as unfounded. In addition, a report of neglect was filed against them when, upon the advice of a specialist, they took a child off a particular medication, because of bad side effects, two days before he was to be seen by the physician who had prescribed it and who made the report. This report, too, was classified as unfounded. All foster children are supposed to be taken to a doctor within 3 days of placement. In this case, however, because the Department representatives had failed to provide the child's Medicaid paperwork in a timely manner, Respondents did not feel they could take him. A Department representative took the child to a doctor one time and returned him with a prescription for medication, but again, because Respondents did not have the Medicaid paperwork, they did not feel they could have it filled. When they advised the Department worker of this, they were, allegedly, told to forget it because it was for a mole. J.B. also got the same fever all the other children got, but they could get no treatment for him without the paperwork. This pertinent Medicaid paperwork was not provided until 10 days after J.B. came into the Respondents' care and, even then, it was good only for 10 days. Without that paperwork, Respondents could not get medical care for the child without paying for it themselves. The attitude that medical care will be withheld from a child if public funds are not provided immediately is disturbing. In this case, it is fortunate that no serious illness or injury was involved. There is no evidence, however, to indicate what the Respondents' response would have been in a more serious case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondents' protest against the restriction against placing children under the age of 10 in their foster home be denied. RECOMMENDED this 28th day of March, 1994, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of March, 1994. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 93-6588 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: Not a Finding of Fact but a stipulation between the parties confirming a previous determination made by the undersigned to change the designation of the parties. & 3. Accepted and incorporated herein. 4. & 5. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. - 12. Accepted and incorporated herein. Accepted. & 15. Accepted and incorporated herein. Accepted and incorporated herein. Not a Finding of Fact. More a recitation of and comment on the evidence. Not a Finding of Fact but a recounting of the testimony of a witness. FOR THE RESPONDENT: Not a Finding of Fact but a stipulation between the parties confirming a previous determination made by the undersigned to change the designation of the parties. - 4. Accepted and incorporated herein. Accepted. Accepted and incorporated herein. - 9. Accepted and incorporated herein. 10. & 11. Accepted and incorporated herein. Accepted and incorporated herein. - 17. Not Findings of Fact but recitations of testimony. 18. - 20. Accepted. Accepted. Not a Finding of Fact but a recitation of testimony. Rejected. A probability of abuse, (injury caused by someone), was indicated, but the identity of the perpetrator was not determined. COPIES FURNISHED: Frank H. Nagatani, Esquire David Jon Fischer, Esquire Department of Health and Rehabilitative Services District V 11351 Ulmerton Road Largo, Florida 34648-1630 James L. Berfield, Esquire Ameri-Life Towers First Floor East 2536 Countryside Boulevard Clearwater, Florida 34623 Robert L. Powell, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Kim Tucker General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact Because she was interested in becoming licensed as a foster parent, Respondent entered the Petitioner's "Group Preparation and Selection, Model Approach to Partnerships in Parenting" (GPS/MAPP) training program in February 1995. GPS/MAPP is a mutual selection process whereby a prospective foster parent becomes informed as to the duties and responsibilities of being a foster parent and the agency is afforded the opportunity to evaluate whether the prospect would make a suitable foster parent. Petitioner requires that each prospective foster parent provide it with verified financial information as to his or her income and expenses. The type information the prospect may submit to verify income includes W-2 forms, tax returns, canceled checks and bank statements. Petitioner considers it necessary that each prospective foster parent have income that exceeds expenses because the needs of the foster child may exceed the monies paid by Petitioner to foster parents and the provision for those needs should not solely depend on the payments the foster parent receives from Petitioner. If a participant in the GPS/MAPP program does not verify his or her income, the prospect's participation in the program is terminated by Petitioner. Petitioner considers a prospect to have been "selected out" when his or her participation in the program is terminated. Respondent was asked to provide the requisite financial information. The financial statement she provided reflected expenses that exceeded her verified income by $1,220.00 per month. Respondent was told as a member of the class that she would be required to verify all her income. After she provided the financial statement that did not verify all of her claimed income, Respondent was specifically advised by Elliott Maddox that such verification would be necessary for her to remain a member of the class. Mr. Maddox also advised Respondent of the type information that would be required. After her discussion with Mr. Maddox, Respondent provided Petitioner with a notarized statement from Eddie Grace, her ex-husband. Although the statement is notarized, the notary is only attesting to the signature of Mr. Grace. Consequently, the statement was not in affidavit form. This statement stated the following: I, Eddie Grace, give my ex-wife, Algeria Grace, 1,200 (sic) and will continue to do so every month as long as I live. I also own a busin- ess and she is part owner of Grace Family Lawn Services. The final judgment dissolving the marriage between Mr. and Mrs. Grace did not require Mr. Grace to pay any money to Mrs. Grace on a monthly basis. The statement from Mr. Grace was all the information provided by Respondent to verify her income of $1,200 per month. There was no financial information from Grace Family Lawn Services that verified she received $1,200 per month from that business. Petitioner advised Mrs. Grace that the information she had provided was insufficient to verify her income and told her that she would be selected out of the program if she did not promptly provide additional verification. Respondent failed to provide additional verification of her income. Because she did not verify her income, Respondent was selected out of the training program.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order that sustains the termination of Respondent's participation in its Group Preparation and Selection, Model Approach to Partnerships in Parenting training program. DONE AND ENTERED this 7th day of June, 1996, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of June, 1996. COPIES FURNISHED: Lisa Friedlieb, Esquire Department of Health and Rehabilitative Services 201 West Broward Boulevard, Suite 201 Fort Lauderdale, Florida 33301 Ms. Algeria Grace 3540 Northwest 8th Street Fort Lauderdale, Florida 33311 Gregory D. Venz, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard Doran, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact On February 2, 1996, Respondent preliminarily established that Petitioner was disqualified to be a foster parent within the definition of "family foster home" contained in Section 409.175(2), Florida Statutes. The denial was based upon Petitioner's failure to meet minimum screening requirements for "good moral character" specified by Section 435.04(2), Florida Statutes. Petitioner's testimony at the final hearing establishes that an incident occurred in a public bathroom where, as a result of a verbal interchange between Petitioner and a policeman, Petitioner was arrested for the offense of "offering for lewdness" in violation of Section 796.07, Florida Statutes (1989). The offense occurred on August 24, 1990. Petitioner subsequently absenced himself from the State of Florida, obstensibly to be at the bedside of his ill father in North Carolina. Following his later return to Florida, Petitioner appeared in court on September 14, 1993, where he was placed on probation, paid a fine and obtained a medical test to determine whether he was infected with the HIV virus. Petitioner and his wife presently care for his godchild, a minor female of eight months of age, and wish to be licensed by Respondent as foster parents. The licensure process required that Petitioner undergo background screening.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered denying Petitioner an exemption from disqualification to work with children in positions of special trust. DONE and ENTERED in Tallahassee, Florida, this 25th day of June, 1996. DON W. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of June, 1996. APPENDIX In accordance with provisions of Section 120.59, Florida Statutes, the following rulings are made on the proposed findings of fact submitted on behalf of the parties. No Proposed Findings Were Submitted. COPIES FURNISHED: Roger L.D. Williams, Esquire District 4 Legal Office Department of Health and Rehabilitative Services Post Office Box 2417 Jacksonville, Florida 32231-0083 Gerald Gregg 2527 Red Robin Drive East Jacksonville, Florida 32210 Gregory D. Venz, Agency Clerk Department of Health and Rehabilitative Services Building 7, Suite 728 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard Doran, Esquire Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
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.
The Issue The issue is whether Respondent should be assessed a $150.00 civil penalty for violating Rule 65C-22.001, Florida Administrative Code, in three respects.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In this case, Petitioner, Department of Children and Family Services (DCFS), has filed an Administrative Complaint against Respondent, Cool School, Inc., a licensed child care facility, seeking to impose a $150.00 civil penalty on Respondent for allegedly violating an agency rule in three respects. Respondent, which operates a facility at 57 College Drive, Orange Park, Florida, disputes the allegations and contends that the charges are either not true, or there are extenuating circumstances present which require dismissal of the charges or a reduction in the penalty. Rule 65C-22.001(5)(a), Florida Administrative Code, underpins this action and requires in relevant part that "[c]hild care personnel at the facility must be assigned to provide direct supervision to a specific group of children and be present with that group of children at all times." The Administrative Complaint alleges that in September 2000 Respondent violated this rule by (a) allowing a two-year-old child to exit the facility to the playground, without supervision, clad only in a shirt and shoes; (b) allowing two children under the age of thirteen to change the diaper of a seven-month-old infant in the bathroom, without supervision by the staff; and (c) allowing at least five school-aged children to leave the premises and get items from their book bags on the front porch, without supervision. The DCFS proposes to impose a $50.00 civil penalty for each violation, or a total of $150.00. DCFS has the responsibility of periodically inspecting licensed child care facilities to ensure that they are complying with agency rules and state law. To carry out this duty, DCFS typically assigns its licensing counselors a number of facilities to monitor. In this case, Susan Kipen, a licensing counselor stationed in Jacksonville, was assigned the task of monitoring more than 90 such facilities in the Jacksonville area, including Respondent. In response to a complaint filed by an unnamed parent on September 18, 2000, Kipen inspected Respondent's facility on the afternoon of September 20, 2000. The parent had reported that her two-year old child had wandered into the playground area without supervision, and that the diapers on her seven-month-old child had been changed by two school age children without appropriate supervision. During her visit, Kipen prepared a document entitled Complaint Investigation in which she recited the alleged violations for which Respondent was being charged. They included, among other things, the two complaints previously lodged by the parent, namely, that a "two year old did get outside by himself, he only had shirt and shoes," and that a "7 month [old] was changed by two schoolers." Although the licensing counselor did not actually observe the two incidents reported by the parent, she included them in her report because she says Respondent's owner, Antoinette Garrity, "confirmed" that they were true by reading and signing the report. However, Garrity understood that her signature merely confirmed that she had read the reported charges, not that she agreed with them. The only first-hand evidence on these two charges was that presented by Respondent. The complaining parent did not testify. In addition to the above two charges, the counselor also charged Respondent with allowing "at least five (5) school-aged children, one at a time, and unsupervised, [to leave] the center by the front door to get items from their book bags located on the front porch." This charge was based on a personal observation by the licensing counselor during her inspection. The first violation concerns a charge that a two- year-old left the facility unattended and was "discovered a few minutes later on the playground by the assistant director." On this issue, the evidence shows that the child was using the potty in the presence of a facility worker, Sharon Dunn, who was also changing a baby's diapers at the same time. The two-year-old suddenly jumped off the potty (without his pants), ran to the door, opened it, and went outside on the porch. Dunn, who had the child in her view at all times from the bathroom window, asked the facility's assistant director, Regina Harewood, who was nearby, "Can you get him?" Harewood acknowledged that she could and proceeded to grab the child and bring him back into into the classroom. The child was never in any danger since he was being observed at all times and was retrieved a few moments after he ran out the door. In addition, Harewood was close enough to be capable of responding to an emergency at all times. Under these circumstances, it is found that no violation of the rule occurred. The second charge concerns an allegation that "two (2) children under the age of 13 years changed the diaper of a 7-month-old infant in the bathroom and no staff was present to supervise [them]." The evidence shows that a new worker had a baby in the bathroom for the purpose of changing his diapers. Garrity acknowledged that when the worker left the room to go outside for a moment, the worker improperly allowed two schoolers who were in the same room to change the diapers. While the diapers were being changed, the baby's mother came into the room. She then complained to staff personnel and later filed a complaint with DCFS. Garrity admonished both the worker and children that this situation should never occur again. Although there was no evidence on how this set of events actually or potentially jeopardized the baby's safety or well-being, a technical violation of the rule has been established since there were no supervisory personnel in the bathroom for a few moments. Finally, during her inspection, the counselor observed at least five children, one at a time, walk outside the front door to retrieve items from their book bags, which were lying on the front porch of the facility, and then return inside. At that time, it was the practice of the children to leave their book bags on the front porch when they arrived at the facility each day. This evidence was not contradicted. Because the front porch was no more than 25 or 30 feet from the sidewalk, which was used by the general public, and there was an apartment complex nearby, the children had the opportunity to gain access to areas frequented by the public. This is true even though the assistant director says that while she was on duty, she was by the front door "the majority of the time." Therefore, the children were potentially at risk when they briefly left the premises to retrieve items from their book bags. Respondent's owner admitted that she "hadn't thought of this situation," and after the incident occurred, she instructed the children that all book bags must be brought into the dayroom. Notwithstanding this corrective action, a violation of the rule has been established. In mitigation, Respondent's owner suggested that the entire matter was caused by a vindictive parent who owed her facility money and filed the charges after a heated confrontation. She also worries that each time the facility receives a civil penalty, it "kills" her business. Finally, she described her facility as a "pretty good" day care facility, and insisted that she puts safety first for the children. Respondent has been the subject of one other disciplinary action in which she was found guilty of failing to submit background screening documents within ten days of employment of seven staff members. In that matter, which was concluded after the Administrative Complaint in this case was issued, she was given a $350.00 civil penalty. See Cool School, Inc. v. Dep't of Children and Family Services, DOAH Case No. 00-1421 (Final Order, Feb. 28, 2001).
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 finding that Respondent violated Rule 65C-22.001(5)(a), Florida Administrative Code, in two respects, and that it have a $100.00 civil penalty imposed. The remaining charge should be dismissed. DONE AND ENTERED this 23rd day of March, 2001, in Tallahassee, Leon County, Florida. ___________________________________ DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of March, 2001. COPIES FURNISHED: Virginia A. Daire, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Antoinette Garrity Cool School, Inc. 57 College Drive Orange Park, Florida 32065 Robin Whipple-Hunter, Esquire Department of Children and Family Services Post Office Box 2417 Jacksonville, Florida 32231-0083
The Issue In this case Petitioner seeks to revoke the Respondents' foster home license premised upon allegations set forth in a complaint letter dated September 27, 1991 and under authority found in Section 409.175, Florida Statutes.
Findings Of Fact Respondents hold a family foster home license issued pursuant to Section 409.175, Florida Statutes. That license expires in April, 1992. (The Respondents had been initially issued a license for the period April 1990 through April 1991.) The license was issued following rigorous training provided to the wife Jean Burgett and a more abbreviated explanation of the responsibilities of foster parents that was provided to the husband, Richard Burgett. The wife is principally responsible for providing foster care under the terms of the license in that the husband's employment requires him to be away from the home frequently. It is the conduct by the wife that has subjected the license issued for the foster home at 17 Teak Course, Ocala, Florida to be placed in jeopardy premised upon allegations set forth in the complaint letter dated September 27, 1991. In the initial training received by Jean Burgett and in the renewal of the license which took place in April 1991, Jean Burgett was made aware of Petitioner's disciplinary policy concerning children placed in foster care. That policy is especially important given the nature of the children who were placed with the Burgetts. The background of those children was that of young people who were abused, neglected or dependent. The initial training which Ms. Burgett was subjected to concerning matters of discipline was a setting in which the general emphasis was that of positive reinforcement of the children in an effort to promote self esteem and eventually gain control over any aberrant behavior and this general emphasis was tied into a more discrete block of training which was a three hour presentation on disciplinary matters. In furtherance of this instruction Jean Burgett was provided the Petitioner's policy manual which spoke to matters of discipline. In addition the Burgetts were made aware of the need to ensure confidentiality concerning the background of the children who were placed with them as it pertained to protections set out in Section 415.513(2), Florida Statutes. By this agreement the Respondents promised not to willfully or knowingly make public or disclose information that was contained in the child abuse registry or records of any child abuse case and to hold that information that came to the attention and knowledge of the Burgetts as privileged and confidential and not subject to disclosure to anyone other than authorized persons. In agreeing to the terms set forth in the family foster home license Mrs. Burgett was made aware that the children in her care as a foster parent were not to be subjected to corporal punishment. Emphasis was placed on the need to promote self-esteem and the importance of this attempt because of the nature of the background of the children and the trauma that the children had been subjected to. An explanation was made to Mrs. Burgett that she was to be gentle and that she was to build up the self-esteem in the children as opposed to tearing down their self esteem. A great deal of time was spent in the training in that Mrs. Burgett had revealed that she was the subject of harsh discipline as a child and had noted her concerns about what was described as the "soft approach" to discipline contemplated by the Petitioner. Nonetheless, Mrs. Burgett agreed to undertake the methods contemplated by the Petitioner in dealing with disciplinary matters associated with foster children in her charge. The complaint letter speaks of a general lack of judgment on the part of Mrs. Burgett concerning care of the children that were placed with her under the foster care program and the fact that the Petitioner's staff had participated in discussions with Mrs. Burgett about this problem. These observations are accurate for reasons which will be described below related to particular inappropriate conduct Mrs. Burgett is held accountable for. One incident involved a four year old boy, Bucky, who had been placed with the Burgetts for foster care, in particular it was respite care from a shelter. That child had been undergoing toilet training and had been taken out of diapers and placed in what is referred to as "big boy pants" before he came to stay with Mrs. Burgett. Apparently for matters of her convenience she changed that regime and placed the child back in diapers. He resisted and went into a tantrum. Mrs. Burgett's response to that conduct was inappropriate and contrary to the training which she had received from Petitioner concerning responses to those episodes by a child. Mrs. Burgett threw the child on the bed striking his head and covered the child up with a pillow and placed herself on top of that pillow as a means of controlling the child. Mrs. Burgett was counseled by Patricia Gilman, an employee with Petitioner, concerning the inappropriate nature of this conduct. In December 1990 Tina 16, Tracy 9, Trevor 7 and an infant Jordan were in foster care with Mrs. Burgett. Mrs. Burgett and the children had been to "Toys R Us" and in the course of that trip Tracy and Trevor caused a scene in the toy store. Mrs. Burgett responded to this situation by returning the children to her vehicle and proceeding to a Burger King restaurant to get something to eat. While at the restaurant Trevor said something that made Tina angry and Tina responded by throwing a drink on Trevor. In the fracas Mrs. Burgett tried to restrain Trevor by putting a hand over his mouth and in struggling with her in an attempt to get away Trevor banged his head on the back of the booth. These circumstances caused the manager of the restaurant to come over to where Mrs. Burgett and the children were located and while the manager was there and other persons were watching Mrs. Burgett remarked to the manager, "these are foster children and they have been damaged." This was an inappropriate comment which would not further the underlying goal of promoting self-esteem in those children. In describing the incident Mary J. Rogers, an operations program administrator for Petitioner, said that no license disciplinary action was taken at that time because Mrs. Rogers regarded the children as difficult to deal with and thought that Mrs. Burgett had demonstrated a willingness to become an acceptable foster parent when interviewed about the December 1990 incident at Burger King by improving her approach with the children in her care. With the advent of other inappropriate conduct by the Petitioner that took place beyond the point in time the Burger King incident occurred, the Petitioner was confronted with conduct so serious as to call for revocation of the foster home license. Another incident about this time by Mrs. Burgett was attempting to counsel an 11 year old girl, Judy, who was in foster home placement with Mrs. Burgett. The subject of the counseling concerns sexual activity, and it included having the child draw male sex organs. Mrs. Rogers discussed this matter with Mrs. Burgett in December 1990 in the course of which conversation Mrs. Burgett said she was trying to help the child. Mrs. Burgett was advised that it was not appropriate for Mrs. Burgett to undertake counseling with the child because Mrs. Burgett was not qualified to do so. In the December 1990 conference concerning the performance of Mrs. Burgett as a foster parent, the Petitioner agreed with the Respondent that no teenage foster children would be placed in Mrs. Burgett's home because Mrs. Burgett acknowledged having difficulty dealing with those children. Nonetheless, such placement was made in September 1991 upon agreement by Mrs. Burgett to such placement. This involved one teenage child from another foster home in which three children had been placed. The eldest child was a 13 year old girl, Rhonda K. and the other two children were younger brothers to Rhonda K., whose ages were 8 and 4. At the time of the placement of the children from the other foster home Mrs. Burgett was caring for three other foster children, Jeremick 5, Amanda 3, and an infant. The arrangement for respite care did not work out, in part due to the manner in which the Mrs. Burgett responded to Rhonda. This led to a request by Rhonda to be removed from Mrs. Burgett's home sooner than anticipated. The reason for the placement of the three children from the other foster home concerned the need by that foster parent to tend to her dying father. Among the inappropriate actions by Mrs. Burgett concerning Rhonda was a remark to the effect that it was the child's fault that her "grandfather", meaning the father of the regular foster parent, was dying with cancer. As Rhonda described at the hearing, this remark by Mrs. Burgett "didn't make her feel good." While Rhonda was staying with Mrs. Burgett, Mrs. Burgett asked Rhonda to slash the tires of the neighbor's vehicle and spray paint that neighbor's house. This was a neighbor that Mrs. Burgett did not get along with. Whatever disagreement Mrs. Burgett had with the neighbor, it was inappropriate behavior to recruit Rhonda to pursue Mrs. Burgett's ideas of unacceptable relations with a neighbor. It taught Rhonda the wrong social skills and commended inappropriate behavior. In a couple of instances, Mrs. Burgett shown a flashlight into the bedroom window of the 4 year old twins of Theresa Kennedy, a neighbor of Mrs. Burgett. This was done in a harassing manner in the Spring or Summer of 1991. On another occasion in which Theresa Kennedy was at the house of Linda Smith, the neighbor whom Mrs. Burgett had advised Rhonda to slash the tires of the neighbor's vehicle, and paint the Smith house, Mrs. Burgett stood for several hours at the end of the driveway of the Smith home. This followed an argument at the Smith home between Mrs. Burgett and Mrs. Smith in the presence of the children, Jeremick and Amanda, which led to the sheriff's office being summoned by the Smiths. The children were then taken back to Mrs. Burgett's home and given that no other adult appeared to be in the home, and in particular Mr. Burgett, this meant that the children, Jeremick and Amanda and an infant, were left unattended for several hours. Mrs. Smith had observed Mrs. Burgett yelling at Jeremick on a number of occasions. At times Mrs. Burgett would tell Jeremick "You can't play with other children in the neighborhood because they are bad." Twice she saw Mrs. Burgett yank Jeremick by the arm. Although Mrs. Smith did not believe that this contact was sufficient to cause physical damage to the child, she was concerned about the manner in which it was done. Mrs. Rogers has observed a deterioration in Mrs. Burgett's attitude over time and an unwillingness to acknowledge that Mrs. Burgett has acted in an inappropriate way; an example being, that she denied the events that have been described relating to Rhonda or Mrs. Burgett's neighbors. In particular, Mrs. Burgett remarked that personnel with the Petitioner should believe Mrs. Burgett and not the children. Mrs. Burgett's attitude is one of hostility in the latter conference of September 13, 1991 between personnel of the Petitioner and Mrs. Burgett, in contrast to the interview of December 1990 in which a willingness had been expressed to work with the requirements incumbent upon Mrs. Burgett under Petitioner's policies on foster care. Mrs. Rogers expresses a reasonable belief that Mrs. Burgett might lose her temper and become physically abusive of the children in her care. Mrs. Burgett's attitude is one of deceit, and demonstrates an inclination to blame others for inappropriate conduct that is attributable to her.
Recommendation Based upon a consideration of the facts found and conclusions of law reached, it is recommended that a Final Order be entered which revokes the family foster home license of Respondents to operate and provide foster care at 17 Teak Course, Ocala, Florida. DONE and ENTERED this 22 day of January, 1992, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22 day of January, 1992. APPENDIX CASE NO. 91-7202 The following discussion is given concerning the proposed facts by Petitioner: Paragraph 1 is addressed in the preliminary statement. Paragraphs 2-10 are subordinate to facts found except the last sentence which is rejected. Paragraph 11 is not pled in the complaint letter and is therefore irrelevant. Paragraph 13 is rejected. Paragraph 14 See discussion of Paragraph 11. Paragraph 15 is subordinate to facts found. Paragraph 16 is not necessary to the resolution of the dispute. Paragraphs 17-28 are subordinate to facts found except in the suggestion about inappropriate household duties which is rejected and not allowing Rhonda to talk to her regular foster mother or attend school which latter facts are not in the complaint letter. Paragraph 29 is addressed in the preliminary statement. COPIES FURNISHED: Ralph J. McMurphy, Esquire HRS-District 3 Legal Office 1000 N.E. 16th Avenue Gainesville, FL 32609 Richard and Jean Burgett 17 Teak Course Ocala, FL 32672 Sam Power, Department Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700
The Issue Whether Respondent's license to operate a foster home for dependent children should be suspended or revoked for lack of cooperation, and violation of the Petitioner's discipline policy, and licensing standards as outlined in the Administrative Complaint.
Findings Of Fact Respondent is an elderly woman who has operated a foster home since October 1989, at 7018 Ironwood Drive, Orlando, Orange County, Florida. Respondent applied for and was granted a foster home license in October, 1989. Foster home licenses are valid for one year and must be renewed annually. Respondent has annually renewed her license and presently holds license number 1093-11, issued October 18, 1993. In a licensing visit on April 6, 1990 Respondent admitted that she had been using some physical discipline with the children. She stated that she had been tapping the children's hands and had threatened one of the kids with a comb. Respondent was counselled by the Petitioner's licensing representative in regard to the agency's disciplinary guidelines. As a follow-up to the counseling session, a letter was sent to Respondent, dated April 6, 1990, by Licensing Representative Barbara Wavell, which advised Respondent that physically disciplining a foster child in her home was a violation of HRS policy. Respondent received the letter, and although she now believes that it contains misstatements of facts, she did not dispute its contents at the time. Respondent was made aware of the discipline policy of HRS on various occasions and during the required foster parent training, and agreed to abide by it. On April 10, 1992, Respondent expressed to Ms. Wavell that she believed "schools should be allowed to spank" and that "children need discipline and there is nothing wrong with appropriate spanking". In late 1993, Respondent hit at least one foster child who was placed in her home, because the child wet the bed. During 1993 and early 1994, Respondent allowed older foster children to discipline younger foster children with corporal punishment. On occasion, Respondent has restricted children from having access to their family members. Respondent has made derogatory remarks about some of the foster children's biological family members while in the presence of the foster children. Respondent had problems working with some of the children's caseworkers, most notably Jodi Peterson, on various occasions. Respondent expressed her concern that the caseworker visited her home too much, and she preferred that Ms. Peterson not have much contact with her foster children. Respondent felt that she should be included in the conversations between the children and their foster care counselors and would get upset that she was not included in these discussions. Respondent did not recognize the need for the children to have privacy and that it impinged on their right to have a proper relationship with their counselors. Respondent had on-going communications problems with the caseworkers. Respondent was specifically instructed concerning monetary allowances for the children, and the fact that the money given to Respondent was to be used for the children for clothing and incidentals. Respondent had difficulty accepting the fact that the children were entitled to monetary allowances to be used for clothing and incidentals. Respondent refused to allow the foster children placed in her home to participate in school activities, she refused to give them their allowance money to pay for school field trips. Respondent did not allow the foster children to have friends visit or to go places for fun. She encouraged them to stay home and watch television in their free time. Respondent on occasion made derogatory marks to some of the foster children placed in her home. Respondent did not show appropriate concern for the safety of a four- year-old foster child who was sharing a bedroom with two twelve-year-old foster children. Respondent was aware that they were hitting her, however, Respondent did not remove the child from that bedroom, although she had three empty bedrooms in the home. Although many visits have been made to the Respondent's home in an attempt to work with her to assist her in bringing the quality of care in her home up to an acceptable level, Respondent has failed to comply. On April 5, 1994, Petitioner's representative visited the Respondent to discuss the reasons that the Petitioner would be seeking a revocation of her license to operate a foster home.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby RECOMMENDED that a final order be entered revoking Respondent's license to operate a foster home. DONE and ENTERED this 18th day of May, 1995, in Tallahassee, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of May, 1995. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties. Proposed findings of fact submitted by Petitioner. Accepted in substance: paragraphs 1 (in part), 2, 4 (in part), 7 (in part), 8 (in part), 10 (in part), 11 (in part), 13 (in part), 14, 15, 16 (in part), 18, 20, 21, 22, 25, 26, 28 (in part), 29 (in part), 30 (in part), 31, 33, 34. Rejected as not supported by clear and convincing evidence: 1 (in part), 10 (in part), 19, 24. Rejected as subsumed, irrelevant or immaterial: paragraphs 3, 6 (in part), 7 (in part), 8 (in part), 9, 11 (in part), 12, 13 (in part), 16 (in part), 17, 23, 27, 28 (in part), 29 (in part), 30 (in part), 32. Rejected as a conclusion of law: paragraph 5 Proposed findings of fact submitted by Respondent. Respondent did not submit proposed findings of fact. COPIES FURNISHED: Laurie A. Lashomb, Esquire Department of Health and Rehabilitative Services District 7 Legal Office 400 W. Robinson Street, Suite S-827 Orlando, Florida 32801 Jane Carey, Esquire 905 W. Colonial Drive Orlando, Florida 32801 Robert L. Powell Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Bouelvard Tallahassee, Florida 32399-0700 Kim Tucker, Esquire Department of Health and Rehabilitative Services 1323 Winewood Bouelvard Tallahassee, Florida 32399-0700
