The Issue The issue is whether Petitioner has proved that the challenged provisions in a Request for Proposal for an 88-slot conditional-release program in Circuit 11 are clearly erroneous, contrary to competition, arbitrary, or capricious.
Findings Of Fact Since 1995, Petitioner has operated a moderate-risk residential program in Miami for juveniles who have been adjudicated delinquent by a juvenile court. Modeled after a typical boarding school, Petitioner maintains 178 beds at three locations in South Florida and provides full educational and athletic programs for boys aged 13-18 years. The typical student remains in Petitioner's residential program for eight to ten months, at which time he is conditionally released into the community. If he completes the conditional-release period successfully, the releasee is no longer subject to supervision. In addition to, and as part of, the educational and athletic programs, Petitioner provides a behavioral modification program to teach the students how to live as productive members of society and avoid further problems with the juvenile- or criminal-justice system. Using principles of positive reinforcement, the behavior modification program helps each student earn self-esteem by providing a multi-step reward system within the school. By demonstrating good behavior and positive attitudes, each student works his way up to positions of increasing responsibility within the school, such as serving as a tutor or mentor to newer students or eventually serving in student government. Some students may earn the right to represent the school in the community, such as presenting dropout prevention talks to local high schools or civic groups. Petitioner also uses positive reinforcement by allowing students to earn the right to visit their homes on weekends, prior to their release from the residential program. Because of their adjudicated status, the students are not free to come and go as they please. However, consistent with Petitioner's reliance on inducing internal change, rather than coercing external change, the school lacks bars, locked doors, shackled students on off-campus trips, or solitary or punishment cells, which are common features of other schools, boot camps, or lockdown facilities that serve adjudicated juveniles of similar risk, but apply the correctional, rather than educational, philosophy. Very few of Petitioner's students choose to "escape" from their campus; students are generally deterred from leaving due to the pressure of more senior peers, who have learned to appreciate and value the responsibilities that Petitioner imposes upon them and have, thus, taken a first step toward modifying their behavior in a positive direction. Petitioner's program has generated considerable contributions from the local community. Petitioner receives $700,000 to $800,000 annually from private donations. Entering into partnerships with local businesses, Petitioner provides its students with three-month apprenticeships in local industries, such as hospitality and homebuilding. In 1998, Respondent requested Petitioner to provide an after-care or conditional-release program for students who had finished the residential program. Petitioner agreed to take all boys from Dade and Broward counties who had completed residential programs. Rejecting the traditional after-care program, which is based on classroom contact that requires the releasee to visit the provider's counselor, Petitioner essentially advanced the commencement of family intervention, family therapy, and parenting classes, so that these supportive programs began while the student was still in the residential placement and continued after release--with Petitioner's counselors visiting the releasee at his home, school or workplace. Petitioner assigns each student in the residential program a conditional-release counselor 60-90 days prior to the student's anticipated release date. The student's conditional- release counselor works in close cooperation with the student's onsite counselor, who works with the student at the school while the student is in the residential program. The student's onsite counselor, teachers, coaches, drug counselors, and mental health counselors give the conditional-release counselor all academic, behavioral, and academic data on the student. The conditional- release counselor also coordinates with the student's juvenile probation officer. Prior to the release of the student, the conditional- release counselor establishes and maintains contact with each student's family by visiting the home and counseling how they can help the student avoid a return to the behavior that caused him to be adjudicated. The conditional-release counselor takes a student home and counsels the family about such things as peer pressure and the proper selection of friends. During these visits, the counselor helps the family set up an acceptable performance plan with academic and behavioral requirements, such as minimum grades to be earned at school and a curfew. After the student is released from the residential program, the conditional-release counselor makes unannounced visits to the student's home, workplace, and school. For the first month following release, the conditional-release counselor meets four times weekly with the parent or guardian and once weekly with the student. For the next five months, the rate of contact is decreased, until it is once weekly with the parent or guardian and once weekly with the student, although the frequency of contact is increased if the student is performing less than satisfactorily. For this six-month period following release from the residential program, if the student is performing satisfactorily, the student's juvenile probation officer, who would normally be required to devote considerable time to the student's case, merely monitors the releasee's progress by reading the reports of the conditional-release counselor. The work of the conditional-release counselor integrates Petitioner's residential and conditional-release programs. Investing considerable time with each student, who typically has not had the benefit of consistency in his support system, the conditional-release counselor earns the trust of each student, usually over a period of three or four months. Because of its good record at retaining counselors, Petitioner ensures that the same counselor is personally involved with a student for a substantial period of time prior to his release, as well as after his release, and, by this means, Petitioner raises the likelihood of a successful release. Petitioner's program has been successful, largely due to the integration of the residential and conditional-release programs, but also due to Petitioner's resourcefulness. Receiving no state money for substance abuse treatment, even though 85-90 percent of the students enter residential placement with a drug problem, Petitioner provides the necessary resources to the students who need them. Relying on private contributions, Petitioner has also expanded its residential capacity from the 65 slots (roughly equivalent to beds) funded by Respondent under the present contract to 120 slots. In 2004, Petitioner addressed the problem of students who, although eligible for release from residential placement, had nowhere to go. Petitioner started a nonresidential independent living program at fourth campus, also in South Florida. This program is funded privately and is not under Respondent's jurisdiction. However, just prior to the re-location of the independent living program to a new building, one of Respondent's auditors, assigned to audit Petitioner's residential program, instead audited the independent living program and found deficiencies in the facility, for which Respondent may have had partial responsibility. Based on this audit, Respondent canceled Petitioner's conditional-release contract, but eventually reinstated it, and it remains in effect until the resolution of this dispute and the successful letting of a new contract. Petitioner's record in preparing its students for life after release, without future problems with the law, has been very good, as compared to the record of other providers of residential placements for adjudicated juveniles. The record is not exceptionally well developed on this point, however. Not long after the short-lived termination of Petitioner's conditional-release program, Respondent issued Request for Proposal #K5K03 (First RFP), which sought a provider for a stand-alone conditional-release program. Previously, Respondent had not solicited bids for the conditional-release services that Petitioner had been providing, probably because Petitioner had originally provided these services on a pilot basis and as an adjunct to its residential program. The First RFP required an offeror to identify a specific facility, to produce a minimum success rate of 85 percent of the releasees remaining crime-free for one year after release, and to participate in the "Going Home Grant Re-entry Project." Respondent proposed to award the contract to Eckerd Youth, even though it had failed to meet these three requirements--most baldly, as for the 85 percent success criterion, Eckerd Youth proposed only 79 percent. Eckerd Youth outscored Petitioner on the First RFP solely due to its higher Dun & Bradstreet score--a factor that is discussed in more detail below, in connection with the present Request for Proposal and Addendum. Petitioner protested the proposed award to Eckerd Youth. In discovery, Petitioner found an earlier draft of the First RFP, which had specified a success rate of 79 percent. The inference is inescapable that the early inclusion of a success rate of 79 percent was to allow Eckerd Youth to compete for the contract. However, the inference is not inescapable that Eckerd Youth representatives communicated their success rate to Respondent's employees while they were drafting the First RFP; it is equally likely that Eckerd Youth's success rate was already known to them. Respondent withdrew the proposed award to Eckerd Youth prior to hearing. On February 17, 2005, Respondent issued Request for Proposal #K7K01, which, as amended by various addenda, is the subject of this case (Second RFP). Although procuring the same conditional-release services sought in the First RFP, the Second RFP omits each of the three above-described requirements of the First RFP. At hearing, Respondent's witnesses persuasively explained that the previous requirements of a facility and participation in a specific grant program had unduly limited the number of potential offerors. This explanation makes sense, given that no offeror is required to use a specific physical location for any purpose besides storing records. Likewise, the Second RFP did not sacrifice anything by not requiring offerors to be participants in the Going Home Grant Re-entry Project at the time of submitting the proposal; the Second RFP allows an offeror to become a participant within 30 days of contract execution. However, Respondent's witnesses could not explain the omission of the 85 percent success criterion or the failure to identify another quantifiable success criterion in its place. The specific language stating the success criterion in the First RFP occurs in the form contract attached to the two requests for proposal. Exhibit 1, Section VIII.C, of the contract attached to the First RFP requires the provider to document evidence of compliance with outcome measures as stated below: A minimum of 100% of all youth shall be developed [sic; based on the language of the form contract attached to the Second RFP, this probably should read "shall have an Individualized Supervision Plan developed"] upon admission and reevaluated as the youth progresses through the program. A minimum of 95% of all youth shall participate in the appropriate educational/academic program, pre-employment and employment skills training, technical or vocational program, individual group and family counseling[,] behavior management systems, and recreational and leisure activities. A minimum of 85% of the youth admitted to the conditional release program shall successfully complete the program by direct discharge. A minimum of 85% of the youth placed in the conditional release program shall remain crime free during their supervision. A minimum of 85% of youth released from the conditional release program shall remain crime free for one year after release. Exhibit 1, Section VIII.B, of the contract attached to the Second RFP is identical (or identical after corrections) as to paragraphs 1, 2, and 3 of the contract attached to the First RFP. The contract attached to the Second RFP omits paragraphs 4 and 5 of the First RFP's contract and adds two new paragraphs, which due to re-numbering are as follows: 2. 100% of the youth shall have a face-to- face contact with his/her assigned Case Manager within 24 hours (excluding weekends and legal holidays) of the youth's return home from the commitment program. 5. 100% of the youth files shall document that the Case Manager reviews the supervision plans with the youth every 14 calendar days and with the youth and parent/guardian every 30 calendar days. Disclosing that the mission of Respondent is to reduce juvenile crime, one of Respondent's witnesses, Genanne Wilson, Operations and Management Consultant Manager, admitted the superiority of the measurement of outputs rather than inputs when applying performance measures. Another of Respondent's witnesses, Perry Anderson, who is Regional Director South of Juvenile Probation and Community Services, was left the task of harmonizing the role of performance measures in achieving Respondent's mission with the removal of any quantifiable success criterion from the Second RFP. Mr. Perry provided a working definition of recidivism as the ability of a releasee to remain free of any conviction or adjudication of any misdemeanor or felony committed during the first year after release. However, he tried to justify the omission of a quantifiable success criterion, such as 85 percent of the releasees remaining crime free for one year after release, by citing the difficulty of obtaining good data concerning a releasee's subsequent criminal record. Later in his testimony, Mr. Perry backed off this claim and conceded that Respondent has started to look at evidence-based outcomes. Toward the end of his testimony, Mr. Perry revealed why Petitioner has fallen into disfavor among certain of Respondent's employees. A conditional-release provider in Florida City is 35 percent below capacity because Petitioner, relying on private donations, serves more students than Respondent pays it to serve. Pressed to explain the importance of bringing the Florida City program up to capacity, Mr. Perry testified that the Florida City program is closer to the homes of some conditional releasees now served by Petitioner. However, Mr. Perry failed to credit the fact that Petitioner's location is irrelevant to these releasees because, unlike the situation in a conventional program, Petitioner's counselors travel to the releasees--the releasees do not travel to Petitioner's counselors. Confronted with the fact that the inclusion of remote releasees in Petitioner's conditional-release program might be a hardship to Petitioner's conditional-release counselors, but would not be a hardship to the releasees, Mr. Perry added a couple more reasons why it was important for Petitioner to share its slots with other conditional-release providers. First, he claimed that Respondent's needs are unmet by the integration of a conditional-release program with a residential program. This point does not address why it is necessary to spread around the conditional-release business. Second, Mr. Perry claimed that, by serving double the number of students for which it is paid, Petitioner may not be able to serve its students appropriately. This point, which, if true, would justify spreading around the conditional-release business, lacks support in the present record. In evaluating the Second RFP in terms of its imposition of any measurable success criterion, other provisions require consideration. Section VII.AB.1 and 2 of the contract attached to the Second RFP provides, in identical language to that found in the contract attached to the First RFP (at Section VII.AA.1 and 2), that: AB. Quality Assurance Standards The Department will evaluate the Provider's program, in accordance with section 985.412, Florida Statutes, to determine if the Provider is meeting minimum thresholds of performance pursuant to quality assurance standards. The [P]rovider shall achieve and maintain at least an overall performance rating in the "minimal" range for applicable quality assurance standards. Failure to achieve at least an overall performance rating in the "minimal" range shall cause the Department to conduct a second quality assurance review, within six (6) months. Such failure shall cause the Department to cancel the [P]rovider's contract unless the [P]rovider achieves compliance with minimum thresholds within six (6) months or unless there are documented extenuating circumstances. In addition, the Department may not contract with the same [P]rovider for the canceled service for a period of twelve (12) months. An obvious shortcoming of the provisions cited in the preceding paragraph is that they promise a future undertaking by Respondent to establish performance standards for the conditional-release contract. However, these paragraphs imply-- correctly--that Respondent is choosing not to identify the performance standard prior to entering into the contract, risking instead a disruption in the delivery of services if the provider that wins this contract is unable to meet Respondent's performance standards. Section IV.B of the contract attached to the Second RFP, as well as Section IV.B of the contract attached to the First RFP, provides that Respondent may terminate the contract, "without cause [and] for its convenience" on 30 days' notice. Given the specificity of the contract language cited in Section VII.AB.1 and 2, its explicit focus on provider nonperformance, and its provision for a cure period, it is unlikely that Respondent may rely on Section IV.B to terminate a provider for a failure to meet performance standards. As Petitioner objects to these three items that the Second RFP omits or changes, when compared to the First RFP, so does Petitioner object to an item that the Second RFP carries forward from the First RFP--the Dun & Bradstreet (D&B) Supplier Qualification Report (SQR) score. Section XVIII.D.2 of Attachment B of the Second RFP instructs the offerors as follows: Supplier Qualification Report (SQR) . . . a. The Department will assign evaluation points on the prospective Provider's financial capability to perform the services outlined in this RFP. The Department requires submission of the prospective Provider's Supplier Qualifier Report (SQR) prepared by Dun & Bradstreet (D&B). The Supplier Qualifier Report is a standard report detailing financial and operational capability. . . . * * * As in the First RFP, Attachment D of the Second RFP states that the SQR score accounts for 100 of the 1000 points available for most offerors. Attachment D explains that an SQR score of 1, which is the lowest risk, earns 100 points. For each point of higher risk, the offeror loses 10 points, except that the offeror receives no points if its score is 9, which is the highest risk. The SQR score is a matter of considerable importance to Petitioner. It is the only measure of financial responsibility of an offeror and counts equally with an offeror's price. (As did the First RFP, the Second RFP presents a maximum contract price--for the Second RFP, this price is $934,370.80. The proposal offering the lowest price receives 100 points, and the remaining proposals receive points in indirect proportion to their variance from the lowest price.) In the award process for the First RFP, Petitioner lost to Eckerd Youth only due to the latter's superior score on the SQR, which was the only item for which Eckerd Youth received a higher score than Petitioner. A D&B sales manager, Michael Kohrt, testified about the SQR, but only in generalities because D&B protects the confidentiality of the proprietary formula that it uses to produce an SQR. Mr. Kohrt could testify only that the SQR measures how long an entity has been in business, its timeliness in paying its bills, as well as unspecified other factors, and applies them in a formula that he was not at liberty to describe. Mr. Kohrt testified that the SQR does not rely on the size of an entity, the amount of its revenue, or the financial resources of its parent corporation. However, on cross- examination, Mr. Kohrt had to admit that, if a better- capitalized entity chose to pay its payables out of capital, rather than from receivables that it had not yet collected, this entity would receive a higher SQR score than the entity that lacked the assets to do so, but instead had to wait until it had collected sufficient receivables to pay the payable. Ms. Wilson offered two reasons for using D&B's SQR for evaluating the financial responsibility of an offeror--one good and one not good. The legitimate reason is that Respondent may not have employees with the necessary competence to read and understand financial statements; this explanation justifies why Respondent has elected not to perform this task with its employees. However, Ms. Wilson testified that outside certified public accountants were not generally available due to conflicts; this explanation is unsupported by the record. Despite its good intentions, Respondent may not delegate ten percent of the points to be awarded in this procurement to an outside contractor that declines to identify the factors that generate a score. In such a case, potential offerors cannot inform themselves of how they can better arrange their financial affairs so as to earn more points, nor can they make informed decisions as to whether to expend the funds to prepare proposals. Hidden criteria, even though applied by a reputable entity like D&B, impedes the procurement process, whether the criteria apply to the financial section or the technical section of a request for proposal. On the other hand, little merit attaches to one basis of Petitioner's challenge to Respondent's use of the SQR or, by inference, any other measure of the timeliness with which an offeror pays its bills. Petitioner incorrectly contends that measuring the timeliness of payment is of no value for an entity, such as Petitioner, that pays its payables as it receives its receivables--essentially, all from the State of Florida. This argument ignores the possibility--not applicable to Petitioner, of course--that a State vendor might divert some of its receivables from their proper destination--the vendor's creditors. Petitioner objects to other provisions in the Second RFP. Three of these reserve the right to Respondent to waive any "minor irregularity" (Attachment A.15), to modify "non-material terms of the RFP" (Attachment B.IV.E), or to "seek clarifications or request any information deemed necessary for proper evaluation of submissions" (Attachment A.14). These objections are to provisions whose potential to influence the award process, in such a way as to confer a competitive advantage upon one offeror over another, is nil, pursuant to case law. More substantive objections of Petitioner are to the Second RFP's procurement of conditional-release services distinct from the procurement of residential services. The record amply demonstrates that the integration of these programs has been an important part of Petitioner's success, but nothing in the record precludes Respondent, in the exercise of its discretion in procuring these services, to separate these programs. The other "omissions" of which Petitioner complains, such as the failure to credit experience or community contributions, also fall within Respondent's discretion.
Recommendation It is RECOMMENDED that the Department of Juvenile Justice enter a final order sustaining the formal written protest to the Second RFP, but only as to its omission of any success criterion based on recidivism rates and its delegation of the scoring of the financial-responsibility section of the request for proposal to Dun & Bradstreet, based on an undisclosed formula using factors with undisclosed weights. DONE AND ENTERED this 4th day of October, 2005, in Tallahassee, Leon County, Florida. S 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 4th day of October, 2005. COPIES FURNISHED: Anthony Schembri, Secretary Department of Juvenile Justice Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-3100 Robert N. Sechen, General Counsel Department of Juvenile Justice Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-3100 Brian Berkowitz Department of Juvenile Justice Knight Building, Room 312V 2737 Centerview Drive Tallahassee, Florida 32399-3100 Joseph P. Klock, Jr. Gavriel E. Nieto, P.A. Rashida Ivy Juan Carlos Antorcha Steel, Hector & Davis, LLP 200 South Biscayne Boulevard, Suite 4000 Miami, Florida 33131-2398
The Issue Are the Respondents entitled to renew their license to operate a family foster home?
Findings Of Fact Respondents held Family Foster Home License No. 059520, effective from May 18, 1995 through May 18, 1996. The license was not renewed based upon allegations in this case. At times relevant, Respondents provided foster care to F.J., who was thirteen when the hearing was conducted, to V.K. who was eight when the hearing was conducted, and to F.J. and V.K.'s two younger brothers. The children lived with the Respondents for approximately six and one-half years. Although F.J. is thirteen years old, she is a developmentally disabled child with an I.Q. in the range of 46 to 58. Her mental and developmental age is less than eleven years. On May 30, 1995 an investigation was begun concerning alleged sexual abuse of F.J. by James Comer. This led to the removal of the children from Respondents' home. On May 30, 1995 F.J. described James Comer's sexual misconduct to Brenda Mims, a human services counsellor for Petitioner. At that time F.J. told Mims that James Comer had touched her breast and felt on her. When F.J. described the contact which James Comer had with her, F.J. put her hands on her breast to demonstrate. She did not describe the point in time when this happened. On that date Mims interviewed Mary Comer concerning the allegations by F.J.. Mary Comer confirmed that F.J. had told Mary Comer that James Comer was "bothering her" and F.J. wanted it to stop. Mary Comer indicated that she thought that F.J. was referring to a "tickling incident". Mary Comer told Mims that she had confronted James Comer about the tickling and asked him to stop tickling F.J.. When Mary Comer spoke to Mims, she referred to F.J. coming to her and saying that "Dada" was bothering F.J.. The term "Dada" is the name the children used to refer to James Comer. The children referred to Mary Comer as "Granny". On June 7, 1995 Mims talked to F.J. again. At that time F.J. was concerned that James Comer not be able to find her in her new home. Assurances were given that James Comer could not find her. On this occasion F.J. told Mims that James Comer "would feel on her" and she didn't like it. In this conversation F.J. described fondling James Comer's penis. F.J. stated that James Comer would hit her with his fist sometimes if F.J. wouldn't cooperate with his advances. F.J. described a big roll of money that James Comer would give her if F.J. would cooperate with him. Otherwise James Comer would not give F.J. money. According to Mims, F.J. said that James Comer would give her money if F.J. would "be with him". In the June 7, 1995 discussion F.J. and V.K. told Mims that Mary Comer tried to prohibit James Comer from bothering F.J. and James Comer began to beat Mary Comer. Following such incident, the police were called, but James Comer was not removed from the home. In the June 7, 1995 conversation V.K. told Mims that on one occasion V.K. peeked out the door and saw F.J. lying on James Comer while he was seated in the reclining chair. Deborah Gipple is a licensed mental health counselor who has experience in counseling child victims of sexual abuse or other trauma. Gipple began counseling F.J. in November, 1995 and continued the counseling to the date of hearing. Gipple observed in F.J. conduct which is consistent with a child who has been sexually abused. This included F.J. exposing herself, rubbing against other children, problems in the classroom and at home concerning the need to follow directions, and a distrust evidenced by sneaking about doing things that were not necessary to avoid detection, such as sneaking about and removing food. F.J. told Gipple that James Comer touched between F.J.'s legs and touched her breast. F.J. further stated that James Comer had her lay on top of him. F.J. told Gipple that sometimes James Comer would come in the night and take F.J. from her bed. In these conversations Gipple observed that F.J. was aware that James Comer's actions were wrong. In these discussions F.J. stated a concern about her sister V.K. and the possibility that James Comer would harm V.K.. V.K. was competent to testify when she testified at hearing. On one occasion when V.K. was in the hallway with her brothers at night she looked in the T.V. room and saw F.J. on top of James Comer while he was seated in a reclining chair. V.K. described that F.J. was moving her body and doing "nasty stuff". On another occasion V.K. was outside the house and observed F.J. and James Comer in the T.V. room. As V.K. describes it, F.J. was playing with James Comer while he was sitting down. F.J. was on James Comer's lap. V.K. did not give exact details concerning what F.J. and James Comer were doing. Concerning these two instances, V.K. recalls that Mary Comer was not home on the first occasion. V.K. has no recollection concerning Mary Comer's whereabouts on the second occasion. V.K. had been subjected to corporal punishment by James Comer when living in his home. She also observed James Comer administer corporal punishment to her two brothers. In the June 3, 1996 video that was made to record F.J.'s remarks concerning James Comer, together with statements she made to others, F.J. demonstrates sufficient appreciation of the meaning of the duty and responsibility to tell the truth to warrant a finding that she was competent for that purpose. In the video she describes that James Comer made her touch his "private parts". She did not describe the period of time over which the sexual contacts were made between James Comer and F.J. She did recount how these events had occurred on a number of occasions. On one occasion her clothes were off when James Comer touched her. In the video tape F.J. describes that James Comer had touched her breast and genital area by pointing to those areas on her body. F.J. identified that the occasions when she was inappropriately touched occurred when Mary Comer was not at home. In the video F.J. refers to the fact that she told Mary Comer about being touched by James Comer, but that Mary Comer did not believe her. By October 1995 F.J., V.K. and their brothers had been placed in the foster home of Roberta Graham where they presently reside. While living with Graham, F.J. told Graham that "Dada", referring to James Comer, was touching F.J. in wrong places, that he touched her on her breasts, and that he took her hand and massaged his "private part", referring to his penis. F.J. told Graham that this happened when Mary Comer went out to get drinks. F.J. told Graham that the other children were outside playing and the door was locked and James Comer and F.J. were inside when events occurred. F.J. mentioned to Graham that an incident happened at night when everyone was in bed and "Dada" called F.J. out alone and then the other children, her brothers and V.K. came out of the room. This is the night time incident V.K. testified about. This incident at night occurred when Mary Comer was not at home. F.J. told Graham that on one occasion James Comer removed F.J.'s clothes when she came out of the bathroom after blocking the door to prohibit F.J.'s exit. F.J. expressed concern to Graham that "Dada" was going to turn from doing things to F.J. to doing things to V.K.. F.J. told Graham that she had reported James Comer's actions to Mary Comer in saying that she told "Granny". F.J. stated to Graham that when F. J. told Mary Comer, she, (Mary Comer) said, "If you tell anyone, you will have to leave". F.J. made the remarks about James Comer's inappropriate conduct approximately thirty times to Graham and was consistent about the facts reported. The remarks by F.J. on the video tape and to Mims, Gipple and Graham which have been recited concerning James Comer are credited as true. Following the accusations about James Comer's sexual misconduct directed to F.J., Petitioner through its employees, Esther Tibbs and Judy Parks, met the Respondents on February 5, 1996 to advise Respondents that Petitioner intended to revoke the foster care license. The grounds for seeking revocation were related to the sexual misconduct by James Comer and the use of corporal punishment in disciplining the foster children. In the past, commencing 1988, Petitioner had received complaints concerning the use of corporal punishment by Respondents in disciplining their foster care children. Petitioner through its employees had counseled Respondents about the inappropriateness of corporal punishment. In one instance correspondence was sent to the Respondents on this subject reminding the Respondents that it was inappropriate to use corporal punishment even to the extent of an "occasional slap on the backside. . .under any circumstances". This reminder was sent through correspondence dated March 25, 1993. In 1988, unrelated to the foster children who have been referred to in these facts, Pamela Davis, Guardian Ad Litem for A.L. spoke to James Comer concerning his administration of corporal punishment to that child. James Comer told Davis that he had beaten the child "to beat the devil out of her" and it hadn't worked. He further stated that Davis could take the child from his home. Davis did remove the child from foster care provided by Respondents. On February 12, 1996 Respondents requested a formal administrative hearing to contest the grounds for revoking their foster home license.
Recommendation Based on the facts found and the conclusions of law reached, it is, RECOMMENDED: that a Final Order be entered which denies the renewal of the Family Foster Home License for Respondents. DONE and ENTERED this 5th day of July, 1996, 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 5th day of July, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 96-0943 The following discussion is given concerning proposed facts by the Petitioner: Paragraphs 1-5 are subordinate to facts found. Paragraph 6 is not necessary to the resolution of the dispute. Paragraphs 7 & 8 are subordinate to facts found with the exception that the fourth sentence is not supported by competent evidence in the record, nor are paragraphs 9 and 10. Paragraph 11 is subordinate to facts found. Paragraph 12 in the first sentence is subordinate to facts found. The last sentence to paragraph 12 and paragraph 13 are not necessary to the resolution of the dispute. Paragraph 14 is discussed in the evidentiary ruling under Section 90.803(23), Florida Statutes. Paragraph 15 is subordinate to facts found with exception that the next to last sentence in the reference that on the second occasion "Granny" had gone somewhere is not supported by competent evidence in the record. Paragraphs 16-18 are subordinate to facts found. Paragraph 19 is not supported by competent evidence in the record. Paragraphs 20 and 21 are subordinate to facts found with the exception that the reference to "they" in paragraph 21 should be "she". The first and the third sentence to paragraph 22 are not supported by the record. The second sentence is subordinate to facts found. Paragraph 23 is not supported by the record. Paragraphs 24 and 25 with the exception of the last phrase to paragraph 25 are subordinate to facts found. The last phrase to paragraph 25 is not supported by the record. Paragraph 26 is subordinate to facts found with the exception of the reference to October 10, 1988, which is not supported by competent evidence in the record. Paragraphs 27-29 are not necessary to the resolution of the dispute. Paragraph 30 is subordinate to facts found with the exception of the reference to November 26, 1995 which is not supported by evidence in the record. Paragraph 31 is not necessary to the resolution of the dispute. The second paragraph 29 is subordinate to facts found. COPIES FURNISHED: Lucy Goddard, Esquire Department of Health and Rehabilitative Services 1000 Northeast 16th Avenue, Box 3 Gainesville, Florida 32601 James and Mary Comer, pro se Post Office Box 722 Micanopy, Florida 32667 Gregory D. Venz, Agency Clerk Department of Health and Rehabilitative Services Building 2, Suite 204X 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard Doran General Counsel Department of Health and Rehabilitative 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 As originally framed, the issue was whether respondents' foster home license should be revoked for alleged failure to cooperate with HRS policy and personnel.
Findings Of Fact As part of the settlement agreement, HRS abandoned any effort to prove the factual allegations which gave rise to these proceedings.
Recommendation It is, accordingly, RECOMMENDED: That HRS enter a final order rescinding its letter of July 10, 1991, to Mr. and Mrs. William Scarff, with the understandings and conditions recited above. DONE and ENTERED this 23 day of January, 1992, in Tallahassee, Florida. COPIES FURNISHED: Ralph J. McMurphy, Esquire 1000 NE 16th Avenue Gainesville, FL 32609 William and Mary Scarff 8281 Weeping Willow Street Brooksville, FL 34613 ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23 day of January, 1992. John Slye, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, FL 32399-0700 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, FL 32399-0700
The Issue Whether Petitioner's foster care license should be revoked because she allegedly lacks the ability to provide for the psychological development of foster children as required in Section 409.175(4)(a)2, Florida Statutes and Rule 10M-6.005(3)(i), Florida Administrative Code.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received, and the entire record compiled herein, the following relevant facts are found. Petitioner, State of Florida, Department of Health and Rehabilitative Services, is the licensing and regulatory agency in Florida for the issuance of foster home licensing. On January 16, 1991, Petitioner issued to Respondent, Pauline Cole, a provisional certificate of license for a foster home for her residence situated at 3501 River Grove Drive in Tampa, Florida indicating that she had complied with the minimum standards set by Petitioner for a foster home and approved her foster home application. By its terms, the license was effective for a period of one year from the above-referenced date unless renewed, extended, withdrawn, or revoked for cause. To demonstrate her eligibility for licensure, Respondent successfully completed several courses including "a clinical interventions for psychiatric nurses: frameworks for success" sponsored by the Florida Mental Health Institute in Tampa, Florida with six contact hours on June 15, 1990. On December 17, 1990, Respondent successfully completed 30 hours of training in "model approach to partnership and parenting (MAPP)". Additionally, Respondent took several other courses dealing with parenting and caring for foster children. On November 21, 1991, Petitioner filed an application to renew her license to provide for foster home care for dependent children. As a result of that application, Petitioner's agents visited Respondent's home to determine whether it still complied with standards set by Petitioner for licensure. During a foster parents meeting in June, 1992, Respondent inquired of one of Petitioner's agents whether or not Petitioner had a policy of surveilling foster parents by following them or otherwise monitoring their activities and particularly their vehicular travels. Petitioner's agent advised Respondent that that was not HRS's policy, i.e., to surveil foster care parents whereupon Respondent related that she felt that she had been followed by Petitioner's child protective investigators. Respondent related several steps that she undertook to determine whether or not she was in fact being followed. Specifically, Respondent would change directions or would make turns from main thoroughfares to see if the car that she considered to be following her would make a similar change in direction. Respondent did not take any evasive measures which in any manner endangered the lives of the foster children that were in her care. During the time of her foster care licensure, Respondent had two foster care children ages three and four. During the sessions wherein Respondent's application for licensure was discussed with Petitioner's agents, Respondent again expressed concern that she was being followed, however, during the last session during March 1992, Respondent advised Petitioner that while she still had her doubts that she was not being followed, she was no longer concerned that she was being followed to the point of taking evasive actions to try to verify her concerns. During the final meeting wherein Petitioner's agents inquired of Respondent if she still had the paranoid ideation that she was being followed, Respondent basically advised Petitioner's agents that "she was leaving the matter in the hands of the Lord." Petitioner's agents basically advised Respondent that if they (Petitioner's agents and Respondent) could put to rest their concern that Respondent no longer had the paranoia of being followed, Respondent could be relicensed. 1/ Respondent earned a bachelor of science degree in nursing from Tuskeege Institute in 1958. She earned a master's degree from the University of South Florida in industrial and technical education during 1979. She is certified as a registered nurse and a community education instructor. Respondent was employed as a registered nurse and nursing instructor at the Veteran's Administration (VA) Hospital in Montgomery, Alabama, Gainesville and Tampa, Florida during the years 1962 through 1980. She retired from the VA in 1980. From 1989 to the present time, Respondent has been employed as a community education instructor at Hillsborough Community College in Tampa, Florida. Respondent holds memberships in several professional and civic organizations and has been very active in community service organizations in Hillsborough County. Among the awards and honors she received was a nominee in Who's Who in American Nursing during 1993-94, a nominee for the achievement award for advocacy/public service at the Tuskeege National Alumni Association during 1992; co-founder, Minority Nurses Association of the Tampa Bay Area and an award for dedicated service, Iota Phi Lambda Sorority, Southern Region, during the years 1983-1987, among others. Respondent has been able to provide a great deal of parenting and inspiration to her two foster children during the times that she cared for them until they were separated from her by Petitioner's agents during 1992. Based on her nursing background and the amount of time that she has been able to devote to her children, she has served as a model foster parent since the time that she was issued a provisional license during 1991.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: Petitioner enter a final order granting Respondent's application to be relicensed as a foster home provider assuming, of course, that she complies with other licensing requirements. DONE AND ENTERED this 12th day of July, 1993, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL 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 12th day of July, 1993.
The Issue Whether Petitioner's application for renewal of her family foster home license should be denied on the grounds set forth in the June 20, 1995, letter from the Department of Health and Rehabilitative Services (HRS), Respondent's predecessor, to Petitioner.
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made: Respondent is (as was its predecessor, HRS) a state government licensing and regulatory agency. From September of 1989 to June 30, 1995, Petitioner was licensed by HRS (on a yearly basis) to operate a family foster home at her residence in Palm Beach County. In May of 1994, as part of the licensure renewal process, Petitioner signed an "Agreement to Provide Substitute Care for Dependent Children" (Agreement). In so doing, she agreed that she would, as a licensed foster parent, among other things, "comply with all requirements for a licensed substitute care home as prescribed by the department," "immediately report any injuries or illness of a child in [her] care," and "abide by the department's discipline policy." The previous day (May 23, 1994), Petitioner had received and signed a copy of HRS's "discipline policy," which provided as follows: FOSTER PARENT(S): You are aware that for some time, Health and Rehabilitative Services has discouraged the use of Physical punishment, including spanking, for children in foster care. Now, however, we have an Administrative Rule statewide which prohibits foster parents from using corporal punishment on foster children. This section of administrative Rule 10M- 6, which deals with discipline is reproduced in the following paragraph. "Licensing and relicensing procedure developed by the Department shall include the presentation of written foster care disciplinary policies to applicants and licensed foster parents to ensure that appropriate nonabusive disciplinary practices are used in dealing with foster children's behavior. Discipline is a training process through which the child develops the self- control, self-reliance and orderly conduct necessary for them to assume responsibilities, make daily living decisions and live according to accepted levels of social behaviors. The purpose of discipline is education and rational. It focuses on deterring unacceptable behavior by encouraging the child to develop internal controls. Foster parents are expected to define rules which establish limits and types of acceptable behavior. These rules must be clearly explained to each child and applied equally to all children. Prohibited disciplinary practices include group punishments for misbehavior of individuals; withholding of meals, mail or family visits; hitting a child with an object; spanking a child; physical, sexual, emotional and verbal abuse; humiliating or degrading punishment which subjects the child to ridicule; being placed in a locked room; and delegation of authority for punishment to other children or persons not known to the child. The use of isolation shall be used only for short periods of time as a therapeutic measure when a child's behavior is temporarily out of control. Such periods of isolation shall be observed and supervised by the foster parent to ensure the safety of the child." If you have problems with this new rule, please discuss this with your licensing counselors who will be able to help you work out alternative disciplinary techniques for each child, according to his/her needs. My signature acknowledges that I have read this statement, that I understand the content and agree to abide by it. A. G. is a 12 year-old foster child who currently resides in Boys Town in Tallahassee. Before entering the foster care system, he had been the victim of abuse. In 1994, A. G. lived in Petitioner's family foster home along with three other male foster children, J. W., M. M., and B. P., all of whom were teenagers with troubled pasts and juvenile records. On or about December 15, 1994, the day before A. G. was scheduled to leave Petitioner's home for another foster home, the other boys angrily reported to Petitioner that A. G. had misappropriated a gift certificate that belonged to M. M. and a watch that belonged to B. P. M. M. was particularly upset and angry about what A. G. had done. Upon receiving this report, Petitioner instructed the boys to "take care of" the matter. The boys then went to A. G.'s room and proceeded to hit A. G. with their hands and a belt. A. G. sustained a number of bruises on his buttocks and the back of his legs as a result of the attack. A. G. yelled and screamed as he was being hit. Petitioner was in her bedroom, which was adjacent to the room where the beating took place. At no time during the attack did she leave her bedroom to tell the boys to stop beating A. G., nor did she take any other action to stop the beating. Petitioner exercised extremely poor judgment in instructing the older boys to "take care of" the matter. She should have realized that the carte blanche she gave J. W., M. M., and B. P., who were upset and angry with A. G., placed A. G.'s physical safety at risk. She compounded her error by not carefully monitoring the older boys subsequent activities to make sure that they resolved the matter appropriately without harming A. G. The following morning, A. G. left Petitioner's home for another foster home, that of Janet Kerimoglu and her husband. A. G. arrived at the Kerimoglu home with very few belongings. Moreover, his physical appearance concerned Ms. Kerimoglu. A. G. appeared to be very thin. Furthermore, he had head lice and fresh bruises on his body. When asked about the bruises, A. G. explained that he had been beaten up by some teenagers the day before at Petitioner's home. A report that A. G. had been the victim of abuse while at Petitioner's home was made to HRS's abuse registry. The report was investigated by HRS's protective services investigative unit. On January 10, 1995, following the completion of the investigation, FPSS Report No. 94-117809 issued. The report classified as "proposed confirmed" the allegation that Respondent was guilty of neglect in connection with the beating that A. G. received at her home on or about December 15, 1994. According to the report, the beating occurred "because of [Petitioner's] lack of supervision and [her] failure to protect [A. G.]," a finding which is supported by the preponderance of the record evidence in the instant case. A request to expunge or amend the report was denied on June 6, 1995. By letter dated June 20, 1995, Petitioner was advised that her foster family home license would not renewed because of the finding of neglect made in FPSS Report No. 94-117809.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order denying Petitioner's application for renewal of her family foster home license. DONE AND ENTERED this 4th day of September, 1998, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 4th day of September, 1998.
The Issue Whether Petitioner is entitled to a foster care license upon satisfactory evidence of financial ability to provide care for children placed in her home.
Findings Of Fact Petitioner took the required courses through the Department and applied for a foster home license. She passed all home visits with flying colors and was recommended for licensure. Her application contained a family financial statement which reflected her monthly income as $660.00 and her estimated monthly liabilities (expenditures) as $625.62. The Department calculated Petitioner's residual income as $34.38 by deducting her usual expenses from her usual income. Because substitute care parents must have sufficient income to assure the stability and security of their own family without relying on foster care payments and must have sufficient income to cover four to six weeks of a foster child's care during anticipated lag time in receiving foster care payments, Petitioner's application was denied. The $660.00 Petitioner declared in her financial statement is made up of $460.00 monthly social security income plus $200.00 from unenumerated sources. Petitioner is not employed outside the home. Petitioner testified credibly that, as of the date of hearing on January 18, 2001, she had nearly $15,000.00 saved in her bank account, mostly as the proceeds of the "Black Farmers Settlement" of a class action lawsuit. In support of her testimony, Petitioner also had admitted in evidence an undated letter addressed to her, showing transmittal to her of a check for $50,000.00 "cash award," in the cases of Pigford et al. v. Glickman, and Brewington et al. v. Glickman. Petitioner also had admitted in evidence an AmSouth "Official Check," dated January 3, 2001, made out to her in the amount of $14,928.88. This appears to be a certified cashier's check she asked for in order to demonstrate her bank balance for the hearing. Petitioner further testified that she had made a deposit to her checking account. She had admitted in evidence an AmSouth customer receipt (deposit slip) showing an AmSouth account balance of $59.85 to which a $3,000.00 check had been deposited on November 1, 2000. The numbers on this item did not match those on her check cashing card or her voided check, which items were also admitted in evidence. However, there is no reason to believe the numbers would match, considering modern automatic banking safeguards. What, precisely, this receipt was intended to demonstrate is unclear. Much of Petitioner's $50,000.00 settlement monies went to pay for hip replacement surgery, and she is fully recovered. Prior to making her application and while she was still in training, that is, prior to November 29, 1999, the Department allowed Petitioner to take in some foster children on an emergency basis. The understanding at that time was that Petitioner would bear all the children's expenses with no reimbursement by any government program except for their medical aid. During this period, Petitioner frequently complained that she had no money to put gas in her car to bring a certain child or children to the Department office for their medical care or to see their case workers. As near as can be determined from this record, these events occurred in the fall of 1999 or early in the year 2000, but without information as to when Petitioner received her lump-sum class action settlement, it is impossible to assess whether these events occurred before or after Petitioner received her class action settlement. Petitioner's Lease for Voucher Tenancy, Section 8, Tenant-Based Assistance Rental Voucher Program, signed April 7, 2000, stated that she lives in the home with four other individuals: Irene Turner, Lionel Cook, Iman McCullough, and Christina Honeycutt. However, a June 26, 2000, Home Study Report concluded, based on visits in April and May 2000, that Petitioner lives alone. Iman McCullough, a foster child, lived in Petitioner's home for a short period in 1999, but by September 2000, she was living in another foster home. Christina Honeycutt, also a foster child, lived in Petitioner's home only briefly in 1999. Another individual listed on the April 7, 2000, lease as a resident of the home is Lionel Cook, one of Petitioner's sons. However, the June 26, 2000, Home Study Report stated that Petitioner did not know her sons' addresses or phone numbers and that she had stated she has no contact with them. The Petitioner's Section 8 rent is $30.00 per month, calculated on five residents in the home. It is conceivable that a change in the number of people in the home may alter the amount paid for rent. There was no evidence presented concerning how much per child Petitioner would receive if her application were granted. Petitioner testified that she hoped to have four children assigned to her. The June 26, 2000, Home Study Report recommended that she receive five children.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Department of Children and Family Services enter a Final Order denying Petitioner's application for a foster home license at this time and without prejudice to reapply. DONE AND ENTERED this 1st day of March, 2001, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of March, 2001.
The Issue Whether the application of Hancel and Irma Felton for foster home licensure should be granted or denied.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department of Children and Family Services is the state agency responsible for granting or denying applications for foster home licensure. Section 409.175, Fla. Stat. Hancel and Irma Felton have been married 10 years, and both consider their marriage to be a happy one. Mr. and Mrs. Felton are raising Mrs. Felton's two children from a previous marriage; her daughter is a junior in high school and her son is in middle school. Mr. Felton treats these children as though they were his own; neither of these children has even had behavior problems. Mr. Felton is currently employed by the City of Coral Gables driving a garbage truck. Mrs. Felton works as a bus attendant for Dade County, although she worked in a child care center until 1989. Mr. and Mrs. Felton profess to have a Christian home, and they both testified that they are very active in the church. Although he has no formal theological training, Mr. Felton is an ordained minister of a church called Our Temple of God for All Ages. Mrs. and Mrs. Felton engage in missionary work, which involves working with young people in prison and with people who live on the street, including prostitutes and drug addicts. They often invite these people to stay in their home so they can counsel them and show them a better way to live. In the summer of 1996, Hancel and Irma Felton indicated to a representative of the Department that they were interested in becoming foster parents. According to Mrs. Felton, she and her husband want to become foster parents because she is an only child and wants more children but cannot have more of her own. Mr. and Mrs. Felton passed the initial "screening" and were enrolled in the MAPP/GPS class, which is a 10-week course which must be taken by all prospective foster and adoptive parents as part of the application process. Mr. and Mrs. Felton regularly attended the MAPP/GPS classes from July to September, 1996, and the Department issued certificates dated September 19, 1996, indicating that they had successfully completed the program. During the first meeting of the MAPP class, Personal Profile forms were distributed to the participants. Mr. Felton filled out this form, detailing his family history, and turned it in to the MAPP instructor. Question 14 in the profile requested: "Please list any children you have, from previous marriages or relationships, who do not currently live with you." Mr. Felton wrote "none" in the blank space provided for the response. Question 17 in the profile asked: "If you have remarried, or entered into a new relationship with someone other than your children's mother, how did your children adjust to the new person?" Mr. Felton responded by stating that the question was "not applicable," that there were "no other children." On July 11, 1996, Mr. and Mrs. Felton signed a Release of Information, in which they authorized the Department to obtain information from federal, state, and local law enforcement agencies to determine if they had any criminal history and to obtain information from the "central abuse registry and tracking system" maintained by the Department to determine if they were named in any confirmed reports of child abuse.1 The Department's check of records kept regarding reports and investigations of child abuse revealed that a report was made to the central abuse registry on February 21, 1989, in which it was alleged that Mr. and Mrs. Felton had abused a child named C. A., who was identified as Mr. Felton's daughter. C. A. is Mr. Felton's daughter by a woman with whom he had a relationship before he met Mrs. Felton. In February, 1989, C. A. was 8 years old. She had been raised by her mother in Detroit, Michigan, but the mother had died approximately a year earlier, and C. A. was placed in foster care in Detroit. In the summer of 1988, Mr. Felton requested that the Detroit authorities place C. A. with him, and she came to live with him and Mrs. Felton in December, 1988. C. A. had behavior problems during the few months she lived with Mr. and Mrs. Felton. Mrs. Felton was apparently unable to cope with her behavior, and Mr. Felton testified that things were getting very difficult with his wife as a result of C. A.'s living in their home.2 As a result of the problems Mrs. Felton had with C. A., Mr. Felton took C. A. out of the home he shared with Mrs. Felton and her children in February, 1989, and moved her into the home of his step-grandmother. In late February, a protective investigator with the Department went to C. A.'s school in response to a report that she had been abused. The investigator talked to C. A. in the presence of the school principal. During the interview, C. A. removed some of her clothing, and the investigator observed raised and discolored welts on the girl's back and legs. C. A. told the investigator that she had been beaten with a folded electrical extension cord. The investigator had observed welts with similar configurations on other children, and she determined, based on her experience, that the welts on C. A. had been inflicted with an extension cord. The protective investigator went to the Felton home and examined Mrs. Felton's two children for signs of abuse; she found no signs of abuse on these children. She interviewed Mr. and Mrs. Felton and noted in her report that they "admitted that they had beat C[]. A[]. with a belt and extension cord." Because they were not related by blood, the Department removed C. A. from the home of Mr. Felton's step-grandmother, even though she was a loving person and provided good care for C. A. C. A. was placed in a shelter and returned to Detroit shortly thereafter. Mr. Felton did not challenge the classification of the abuse report, and it became final as to him. Mrs. Felton hired an attorney, who negotiated a settlement with the Department whereby the abuse report became final as to her, but she was granted an exemption from the disqualification from working with children which resulted from the abuse report. At the hearing, both Mr. and Mrs. Felton denied ever "beating" C. A. They admitted, however, that they "spanked" her. During the time they participated in the MAPP classes and selection process, neither Mr. Felton nor Mrs. Felton disclosed to the Department that they had been named in an abuse report in 1989. Both testified that, since they had signed the Release of Information form, they assumed the Department would find out about it. Mr. and Mrs. Felton both testified that they had benefited greatly from the MAPP program. They have learned that it is inappropriate to spank a child for misbehavior and that it is better to talk with the child and make the child feel loved and wanted. C. A., who is now 16 years old, calls her father occasionally, and Mr. Felton is in contact with his mother, who apparently lives in Detroit and can provide some information about C. A. Mr. Felton testified that his daughter lives mostly on the street and has essentially raised herself since her mother died. Mr. Felton related that C. A. had recently called him and asked if she could come stay with him for the summer. He refused her request because he "needed to get his name straight." He wants C. A. to come live with him eventually. Mr. Felton provides support for C. A. though the $101.50 the City of Coral Gables currently deducts from Mr. Felton's biweekly paycheck. The evidence presented by Mr. and Mrs. Felton is not sufficient to establish their fitness for licensure as foster parents. Rather, the greater weight of the evidence establishes that Mr. and Mrs. Felton currently do not possess the good moral character necessary for those entrusted with a foster home license, which is recognized as a public trust and a privilege. Mr. Felton made intentional misstatements on the Personal Profile form which he completed as part of the foster home licensure application process when he twice stated that he had no children from relationships or marriages other than that with Mrs. Felton. In addition, neither Mr. nor Mrs. Felton disclosed to the Department the existence of the 1989 abuse report involving C. A., apparently feeling no obligation to do so and assuming that the Department would find out about it when they did the screening required for foster home license applicants. Finally, Mr. and Mrs. Felton are currently unable or unwilling to provide shelter and care to Mr. Felton's own child, C. A., who, in Mr. Felton's words, has "raised herself" and is currently living "on the street" in Detroit, Michigan. These three factors, taken together with their treatment of C. A in 1989,3 establish that the Feltons do not have the good moral character required of foster parents.
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 denying the application of Irma and Hancel Felton for foster home licensure. DONE AND ENTERED this 15th day of May, 1997, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 15th day of May, 1997.
The Issue Whether the Petitioner should receive general revenue funds allocated to the Department of Children and Family Services.
Findings Of Fact The Petitioner is an 18 year-old female who is eligible for services as an individual with mental retardation. The Department (or its predecessor) first provided benefits to the Petitioner in 1985 based upon such eligibility (Downs Syndrome). Although an applicant for services in the Department’s District 15, the Petitioner currently attends a residential placement in Miami, Florida. From the undisputed evidence, Petitioner is performing well in her placement and is learning life skills. Petitioner exhibits child-like behaviors, however, and is dependent on adult supervision for her well being. The Petitioner is a client of the Department’s Developmental Disabilities Program and would have received the benefits requested in this cause but for the lack of funds. It is the Department’s position that the appropriations allocated to the Department by the Legislature did not provide sufficient funds to meet the Petitioner’s claim and that it would be unlawful for the Department to exceed its appropriated budget. Because the Department does not have funds for all of the eligible recipients (clients), the Department prioritizes the claims and places clients whose benefits are not provided on a waiting list. In fact, the Petitioner is on the Medicaid Waiver Program waiting list for the services sought. The Petitioner’s mother has provided for her daughter and incurred debt to do so. She must have financial assistance in order to keep the Petitioner at the school where she is doing well. The Department provides assistance for persons like Petitioner only when they are deemed to be “in crisis.” The Department maintains that the Petitioner does not currently meet its definition for “crisis” intervention. The Petitioner’s services from the Developmental Disabilities Program were canceled without notice to the Petitioner in 1988. The Petitioner timely sought benefits in 1998 or 1999 and would be receiving the benefits now sought had the Department properly processed the application through the correct program. The Department appropriates funds through its district offices. In this case, District 15 (where the Petitioner’s mother resides) does not have funds available to meet the Petitioner’s claim. Whether statewide funds are unavailable is unknown. Were the Petitioner’s mother to abandon the Petitioner, it is unlikely the Petitioner could provide for her own needs; she would be in “crisis.”
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 granting Petitioner’s request for services. DONE AND ENTERED this 23rd day of December, 2002, 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 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of December, 2002. COPIES FURNISHED: Paul F. Flounlacker, Jr., Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700 Laurel Hopper, Esquire Department of Children and Family Services 337 North Fourth Street Fort Pierce, Florida 34950 William N. Swift, Esquire William N. Swift, P.A. 901 Southwest Martin Downs Boulevard Suite 208 Palm City, Florida 34990
