The Issue Whether Respondents’ renewal foster home license application should be denied based upon allegations that Respondents violated a foster child’s safety plan, refused to sign a corrective action plan, and refused to work in partnership with Petitioner.
Findings Of Fact The Parties DCF is the state agency responsible for licensing foster care parents and foster homes pursuant to section 409.175, Florida Statutes. DCF administers foster care programs by contracting with third-party private entities. In Circuit 19, which is the geographic area encompassing Port St. Lucie, DCF has contracted with Devereux Community Based Care (“Devereux”) to be the “lead agency” to provide the majority of child services. Devereux, in turn, has subcontracted with Camelot Community Care (“Camelot”), which is licensed as a child placement agency. Respondents, who are husband and wife, are foster care parents in a foster care home licensed by DCF. At all times material hereto, Mr. and Mrs. Arias have fostered children at their home in Port St. Lucie. Respondent, Kathleen Arias (“Mrs. Arias”), does not work outside the foster home. She is a “stay-at-home” foster mom. Over the past 16 years, Mrs. Arias has fostered many children. Mrs. Arias is very loving to the foster children in her care, and she has provided a great benefit to the foster children in her care.2/ Kenneth Strout’s Prior History of Sexually Inappropriate Behaviors Kenneth Strout (“Kenneth”), who recently turned 18 years old, was placed into Respondents’ foster home in 2013. Prior to his placement in Respondents’ home, Kenneth engaged in inappropriate sexual behaviors. As a therapeutic foster child in Respondents’ home, Kenneth received therapeutic services, including therapy, psychiatric services, support, and therapeutic parenting by a trained therapeutic foster parent, Mrs. Arias. Despite receiving therapeutic services, Kenneth continued to engage in inappropriate sexual behaviors while living in Respondents’ home. During the time in which Kenneth lived in the home, he had a history of sexually touching others, exposing himself, and masturbating in close proximity to others. On one particular occasion on September 17, 2014, Kenneth was sitting on the couch watching television, and Mrs. Arias’ sister walked in the room. While she had her back to Kenneth, he dropped his pants, exposed himself to her, and pressed his penis against her buttocks. The Applicable Safety Plan Requirements As a result of this incident, an updated safety plan was developed.3/ The safety plan was signed by Mrs. Arias on October 8, 2014. Mrs. Arias reviewed the safety plan and is aware of the requirements of the safety plan. Specifically, the safety plan requires, in pertinent part: “Client needs to be within eyesight and earshot of a responsible adult, who is aware of and will enforce the safety plan at all times.” The May 28, 2015, Incident at LA Fitness and its Aftermath Against this backdrop, on May 28, 2015, at approximately 8:00 p.m., Mrs. Arias took Kenneth, who was 17 years old at the time, to LA Fitness, a gym facility in Port St. Lucie. Mrs. Arias had a membership at LA Fitness and frequented the facility on a regular basis. Despite Ms. Arias’ knowledge of Kenneth’s inappropriate sexual propensities, Kenneth often accompanied Mrs. Arias to the facility, where he would play basketball on an indoor basketball court, while Mrs. Arias exercised in another area at the facility. During the evening of May 28, 2015, Kenneth had been playing basketball on the indoor basketball court. He left the basketball court and approached Mrs. Arias and told her that he needed to use the bathroom. Mrs. Arias gave Kenneth permission to go to the bathroom. The men’s restroom is located inside the men’s locker room. At this point, Kenneth walked toward the men’s locker room, and entered the men’s locker room through the door leading from a hallway into the men’s locker room. Mrs. Arias did not go into the men’s locker room with Kenneth, nor was Kenneth accompanied by an adult when he entered the men’s locker room. Once Kenneth entered the men’s locker room, he walked to the other end of the locker room to another door, which led to the Jacuzzi area. Kenneth then opened the door from the men’s locker room leading to the Jacuzzi area. At this point, Kenneth observed a female, Concepcion Alvarado, sitting alone in the Jacuzzi. Ms. Alvarado was in her swimsuit. At this point, Ms. Alvarado was relaxing in the Jacuzzi with her eyes closed. After observing Ms. Alvarado for a moment, Kenneth stripped down to his boxer shorts, entered the Jacuzzi, and inappropriately touched Ms. Alvarado on her leg. Upon realizing that somebody touched her leg, Ms. Alvarado opened her eyes, saw Kenneth in front of her, and said to him: “What are you doing, little boy?” “Just get out of my way, or do your own stuff.” Kenneth then touched Ms. Alvarado on her shoulder. At this point, Ms. Alvarado became very angry and said to Kenneth: “Why are you touching me? You’re not supposed to do that.” “Just get out.” Kenneth smiled at Ms. Alvarado as Ms. Alvarado exited the Jacuzzi. Ms. Alvarado then entered the nearby pool. Kenneth followed Ms. Alvarado and jumped in the pool as well. Ms. Alvarado recognized Kenneth because he had engaged in similar inappropriate sexual behavior a week earlier. On the prior occasion, Kenneth and Ms. Alvarado were in the Jacuzzi when Kenneth tried to kiss her and touched her leg. Ms. Alvarado did not report the prior incident. However, Ms. Alvarado reported the May 28, 2015, incident to an LA Fitness employee. Shortly thereafter, law enforcement officers arrived at the facility and arrested Kenneth. Kenneth was taken to a juvenile detention facility where he spent the night. Kenneth was not within eyeshot or earshot of Mrs. Arias or another responsible adult once he entered the men’s locker room on May 28, 2015. Kenneth was not within eyeshot or earshot of Mrs. Arias or another responsible adult when the inappropriate physical contact perpetrated by Kenneth against Ms. Alvarado in the Jacuzzi on May 28, 2015, occurred. The persuasive and credible evidence adduced at hearing establishes that Respondents violated the October 2014 safety plan by failing to ensure that Kenneth was within earshot and eyeshot of a responsible adult at all times when he was at LA Fitness. Had Kenneth been within eyeshot and earshot of a responsible adult at all times on May 28, 2015, while he was at LA Fitness, the incident in the Jacuzzi with Ms. Alvarado would not have occurred.4/ Notably, given Kenneth’s history of sexually inappropriate behaviors, Mrs. Arias knew that she was taking a risk to the public in bringing Kenneth to LA fitness because it was an environment that could be problematic for him. At hearing, Ms. Linda Green, a licensed clinical social worker formerly employed by Camelot, persuasively and credibly explained the difficulties she and Mrs. Arias faced in their efforts to deal with Kenneth’s sexually inappropriate behaviors. According to Ms. Green, a true bond developed between Mrs. Arias and Kenneth. Kenneth referred to Mrs. Arias as “mom,” and he felt like she was his mother. In an attempt to keep the family unit intact, Ms. Green wanted significant “client-directed therapy” and “advocation because the client should have the right to control their life.” On the other hand, Ms. Green was concerned about keeping society safe from Kenneth. In hindsight, Ms. Green candidly admitted at hearing that Kenneth “probably needed institutionalization sooner.” Mrs. Arias recognized her inability to control Kenneth’s sexually inappropriate behaviors and the danger he posed to society prior to the May 28, 2015, incident. Prior to the May 28, 2015, incident, Mrs. Arias requested that Kenneth be placed on a “30-Day Notice.” Kenneth was on a “30-Day Notice” when the incident at the gym on May 28, 2015, occurred. Nevertheless, Kenneth remained in the Respondents’ home as of the May 28, 2015, incident at the gym because Devereux was having difficulty finding a new placement, and Mrs. Arias agreed to keep Kenneth in the home until after the end of the school year. The school year ended the first week of June. Kenneth never returned to Respondents’ home after the May 28, 2015, incident at LA Fitness. Instead, Kenneth was discharged from the foster care program, and placed in a group facility where he has resided ever since. It is anticipated that Kenneth will remain in the group facility until he is 23 years old. Following the incident at the LA Fitness gym on May 28, 2015, DCF undertook an investigation. As a result of its investigation, DCF concluded that the safety plan was violated because Kenneth was not within earshot or eyeshot of a responsible adult when the incident at the gym on May 28, 2015, occurred. DCF’s investigation resulted in a verified finding of abuse against Respondents based on inadequate supervision. Based on DCF’s verified finding of abuse based on inadequate supervision, a corrective action plan was required by administrative rule and prepared for Respondents to execute. A corrective action plan is a document which identifies issues of concern to DCF and how DCF, as an agency, can work together with the foster parent to improve the foster parent’s performance. A corrective action plan serves as a supportive intervention and is not punitive in nature. Respondents refused to execute the corrective action plan because they were concerned that, in doing so, they would admit DCF’s investigative finding of abuse based on inadequate supervision. The persuasive and credible evidence adduced at hearing establishes that Respondents refused to execute the corrective action plan. The persuasive and credible evidence adduced at hearing fails to establish that Respondents failed to work in partnership with DCF.5/ Respondents’ foster care license was due to expire on October 18, 2015. After the May 28, 2015, incident occurred, DCF placed another child under Respondents’ care. Regardless of the incident at LA Fitness on May 28, 2015, DCF intended to re-license Respondents. DCF intended to renew Respondents’ foster care license after the May 28, 2015, incident despite the verified finding of inadequate supervision. DCF was unable to re-license Respondents because they failed to execute the corrective action plan required by rule. Had Respondents executed the corrective action plan required by DCF, Respondents’ foster care license would have been renewed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued by the Department of Children and Families placing Respondents’ foster care license in provisional status for six months, during which time Respondents shall execute the corrective action plan. If Respondents decline to execute the corrective action plan within six months, the provisional license will not be replaced with a regular license or renewed.7/ DONE AND ENTERED this 3rd day of June, 2016, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of June, 2016.
Findings Of Fact Respondent, Margaret Speer (Speer), received her initial foster care license from Petitioner, Department of Health and Rehabilitative Services (HRS), on March 18, 1991. Speer resided at 1501 Windorah Way, West Palm Beach, Florida 33411, on that date. On March 18, 1992, HRS renewed Speer's foster care license. At that time Speer was living at 992 Whipporwill Way, West Palm Beach, Florida. On April 14, 1992, after moving to 12212-3 Sagharbor Court, Wellington, Florida, Speer received a foster home license for the new address. In October 1992, Speer received a foster home license for her residence at 129 Gregory Road, West Palm Beach, Florida. In June or July of 1992, Speer moved to 5380 Gene Circle, West Palm Beach, Florida. HRS never issued a foster home license to Speer at this address and the residence was not inspected by the local health department. In September 1993, Speer moved to 738 Carissa Drive, Royal Palm Beach, Florida 33411. On October 18, 1993, the Health Department inspected Speer's home at 783 Carissa Drive, Royal Palm Beach, Florida 33411, and found it to be unsatisfactory for use as a foster home for children. Speer moved to 4852-C Orleans Circle, West Palm Beach, Florida. She received a foster home license for that residence on October 31, 1993. At the date of the final hearing, Speer was living at 515 North 10th Street, Lake Worth, Florida. It is important that foster children have stability in their lives, including the location of their residence. Speer's frequent changes of residence could have a detrimental effect on the foster children in her care as noted by an HRS children and families counselor who visited Speer's homes over 17 times from June 1992 to October 1993.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Margaret Speer's application for renewal of her foster care license. DONE AND ENTERED this 9th day of August, 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 9th day of August, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-1769 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: Petitioner's Proposed Findings of Fact. Paragraphs 1-9: Accepted in substance. Paragraph 10: Rejected as not necessary. Paragraph 11: Accepted in substance. Paragraph 12: Rejected as subordinate to the facts found. Respondent's Proposed Findings of Fact. Respondent's letter did not delineate findings of fact and conclusions of law. Paragraphs 1-2: Rejected as subordinate to the facts found. Paragraph 3: Rejected as constituting argument. COPIES FURNISHED: Catherine M. Linton Assistant District Legal Counsel Department of Health and Rehabilitative Services 111 South Sapodilla West Palm Beach, Florida 33401 Margaret Speer 515 North 10th Street Lake Worth, Florida 33460 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 Whether Petitioners, K.W. and L.A.W., should be granted a license to be foster parents.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of facts are made: Petitioners are a married couple who applied to Respondent for a foster home license. Petitioners have three children. The background investigation conducted by Respondent revealed reports of incidents of domestic violence and battery involving Petitioners and their children. On October 4, 1999, police officers responded to Petitioners' home after receiving a report of domestic violence. The officer's investigation revealed that one of the Petitioners, L.A.W., had been battered by her son. The child had been involved in pastoral counseling for his aggressive behavior. Petitioner, K.W., advised the police officer that the child, W.A.W., would be moving from the residence because of his continuing inappropriate behavior. On April 7, 2002, another incident of domestic violence was reported and investigated. On this occasion, the two younger children of Petitioners were involved in an altercation that resulted in Petitioner, K.W., being rendered unconscious by a blow to the head with an object delivered by one of the children, C.W. C.W. was arrested for aggravated battery. In February 2003, Petitioners desired to keep a six- month-old, unrelated child in their home. The child was placed in the home contingent on C.W.'s moving from the home and not residing in the home. Petitioners agreed to this contingency of placement, and the child was placed in Petitioners' home. On November 5, 2003, Petitioners applied to be licensed as foster parents. Ten days after Petitioners applied to be licensed, another incident of domestic violence occurred. On November 15, 2003, two of Petitioners' adult children got into a fistfight which resulted in one having a broken nose. As a result, W.A.W. was arrested. At the time of the altercation, W.A.W., 21 years old and the oldest child who had moved out at an earlier time as a result of his behavior, was residing at Petitioners' residence. Although the police report indicates that the incident occurred at Petitioners' residence, the testimony indicated that it occurred "down the street." All three of Petitioners' children continue to reside locally and frequent their parents' home. Petitioners are highly recommended by a representative of The Children's Home Society, a Guardian ad Litem, and their pastor. Respondent has the responsibility of placing foster children in a safe setting. But for the behavior of their children, Petitioners would qualify for licensure. As long as Petitioners' children frequent Petitioners' residence, any child placed in that residence is at risk. As a result, Petitioners are not qualified to be licensed as foster parents.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services enter a final order denying the foster care license application of Petitioners. DONE AND ENTERED this 12th day of January, 2005, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of January, 2005. COPIES FURNISHED: Thomas J. Thompson, Esquire Thomas Thompson, P.A. 100 South Washington Avenue Titusville, Florida 32780 Richard Cato, Esquire Department of children and Family Services 400 West Robinson Street, Suite S-1106 Orlando, Florida 32801-1782 Paul Flounlacker, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
The Issue Whether Petitioner’s application for licensure as a family foster home should be granted.
Findings Of Fact Sometime around 2004, Petitioner held a license as a foster home in Florida. During the licensure period, Petitioner fostered X. B. and T. T. in her home where she resided with her three biological children. X. B. stayed in Petitioner's home for approximately three weeks to a month. Throughout X. B.'s stay, Petitioner failed to provide breakfast to X. B. prior to school. Petitioner's failure necessitated the case manager providing such breakfast to X. B. when she drove X. B. to school. Additionally, on several occasions the case manager saw evidence of roach infestation in the home. In particular, upon X. B.'s return to Petitioner's home from visiting X. B.'s siblings, the case manager found him in a roach-infested environment, with no running water in the home since the service had been turned off by the service provider for non-payment of the bill. The toilet bowl was filled with feces and urine and had feces on the lid. It was unsanitary and unusable. X. B. asked the case manager to take him to the local gas station so that X. B. could use the bathroom. Soon after, X. B. was removed from Petitioner's care due to unsanitary conditions and/or unsafe conditions in Petitioner's home. T. T. was a one-year-old child who was also placed in Petitioner's foster home during her earlier licensure period. Again, the case manager saw evidence of roach infestation in Petitioner's home. At first, the case manager only saw a couple of roaches in the home. However, the roach problem progressively grew to the point that during one of the case manager's visits the wall behind the baby's crib looked like it was moving because there were so many roaches on it. Soon after, the case manager removed T. T. to another foster home. When they arrived at the new home, a roach crawled out of T. T.'s diaper bag. Upon inspection of the bag, the case manager discovered many dead roaches in the bag. More importantly, half of a dead roach was discovered in the baby bottle of milk that T. T. was drinking while being moved to T. T.'s new foster home. Clearly, the condition of Petitioner's foster home was neither sanitary nor safe. Petitioner's care of both these children resulted in verified abuse reports in Florida's abuse registry for conditions hazardous to the health of children. Petitioner's initial foster home license either lapsed or was not renewed. Since 2004, Petitioner has not been financially stable. In fact, she often asked her neighbors for money to pay her utility bills or buy gas for her car. Additionally, Petitioner lost different homes to foreclosure in 2006 and 2007. Since 2009, she and her children have moved to a different home an average of once a year. To her credit, Petitioner attended college and obtained her doctorate in Theology and Philosophy. However, her history has not demonstrated either household stability or financial ability in her life. In 2011, Petitioner applied for licensure as a family foster home. She successfully completed the Model Approach to Partnership in Parenting (MAPP) training program on September 20, 2011. In June 2012, Trauma Therapist for Children’s Homes Society, Katie Klutz, began the required home study of Petitioner. During the home study, Petitioner and her three biological children were living in a three bedroom home. Petitioner moved her bedroom furniture into the living room in order to make room for potential foster children. The bedroom space was separated from the living room by "curtains" that afforded no significant privacy for those living in the home. Clearly, Petitioner's home did not provide sufficient space to foster an additional child in the home. Petitioner has since moved to a larger home that was not the subject of the home study for this license. However, given Petitioner's past household instability, the very limited evidence regarding this new home does not support a finding that Petitioner's current home offers sufficient space to provide for the privacy and well-being of a foster child. More importantly, Petitioner has not worked since having an accident on the job in May 2010. A neighbor also provided a written reference in which she praised Petitioner’s spirit but stated that it is “a real struggle” for Petitioner to maintain her home and that “she will definitely need additional support in this area.” Notably, it was unclear how Petitioner was currently supporting her household. She has no employment. Petitioner claimed that she received money from a church or charitable organization that she founded. However, there was no evidence that such limited income, if any, was sufficient to support her family and/or provide financially stable conditions to Petitioner and her family. Moreover, Petitioner's bank records reflect that in June 2012, she made deposits of $167.53 and debited the account $266.07. Her ending balance in June was $18.81. At hearing, other than child support and food stamps, Petitioner offered no evidence of additional finances or income that is attributable to her. Given these facts, Petitioner has failed to demonstrate home safety, household stability or financial ability sufficient to entitle her to be licensed as a foster home. Therefore, Petitioner's application for such licensure should be denied.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner's application for licensure as a foster home should be denied. DONE AND ENTERED this 28th day of March, 2013, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of March, 2013. COPIES FURNISHED: Paul A. Rowell, Esquire Department of Children and Families 2383 Phillips Road Tallahassee, Florida 32308 Shakinah Glory 4768 Woodville Highway Apartment 428 Tallahassee, Florida 32305 M. Burnette Coats, Esquire Department of Children and Families 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399 Gregory Venz, Agency Clerk Department of Children and Families Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Marion Drew Parker, General Counsel Department of Children and Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 David Wilkins, Secretary Department of Children and Families Building 1, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue in the case is whether Respondent should be subject to administrative penalties, including an administrative fine not to exceed $1,000.00, for failure to comply with the residential facility requirements of chapter 393, Florida Statutes, as alleged in the Administrative Complaint dated November 12, 2009.
Findings Of Fact APD is the state agency charged with the licensing and regulation of foster care facilities, group home facilities, and residential habilitation pursuant to section 20.197 and chapter 393, Florida Statutes (2009). At all times relevant to this proceeding, Respondent held one group home facility license issued by APD for a residence at 12629 Southwest Archer Lane, Archer, Florida 32618. The group home is owned and operated by Miles Hines. C.H. is a child client of APD who has been diagnosed with moderate mental retardation and bipolar disorder. C.H. has a history of attention deficit hyperactivity disorder, post- traumatic stress disorder, and depression. At all times relevant to this proceeding, C.H. was a resident at the Jim Tin Group Home. M.K. is an adult client of APD who has been diagnosed with, among other conditions, mental retardation. At all times relevant to this proceeding, M.K. was a resident at the Jim Tin Group Home. APD alleged that M.K. sexually abused C.H. at the Jim Tin Group Home on or about January 14, 2009. APD produced no direct evidence in support of the allegation. APD relied solely on the written investigative report of a "Child Institutional Investigation" conducted by DCF protective investigator Natalie Rella between January 14 and March 11, 2009. Ms. Rella's report was reviewed and approved by her supervisor, Cheryl Hollingsworth. Ms. Rella did not testify at the hearing. None of the persons interviewed by Ms. Rella testified at the hearing. Ms. Hollingsworth testified that she did not personally participate in any of the interviews that formed the basis of Ms. Rella's report, nor did she independently investigate the abuse report that triggered the investigation. Ms. Hollingsworth relied entirely on Ms. Rella's report and Ms. Rella's conclusion that there were verified findings of inadequate supervision by Mr. Hines. Ms. Rella's report stated that its findings were based on an interview with M.K., an interview of C.H. conducted by the Child Advocacy Center, and her review of prior reports. No transcript or other account of the substance of the interviews was entered into evidence. The "narrative" portion of Ms. Rella's report stated as follows: [C.H.] is intellectual disabled [sic]. [C.H.] is high functioning but he has a lot of problems. On the night of 01/14/09, a resident tried to grab [C.H.'s] hand and put it between his legs. The resident told [C.H.] to suck his penis. [C.H.] did not but he told the supervisor who said, "I did not see it happen so there is nothing they can do." [C.H.] has spoken with the staff in the past about the resident's behavior. In the past, the other resident has tried to sexually aggress upon [C.H.]. The advances happened for a while but they stopped. The sexual advances have picked back up in the last couple of weeks. [C.H.] is frightened and scared of the resident. Ms. Rella's report contained a "prior reports" section describing previous investigations involving the same residents. One of these incidents involved a report by C.H. that he had been raped by two men and that another man had sucked C.H.'s penis while the child was at a DJJ facility. This claim was determined to be not substantiated. There were cameras in the room where the assaults were alleged to have occurred. The cameras proved that the assaults never took place. Americo Rodrigues is a certified behavior analyst with Choice Behavior Services, LLC in Gainesville. He has been C.H.'s behavior analyst since 2008 and visits C.H. weekly at the Jim Tin Group Home. Mr. Rodrigues testified that among C.H.'s behavioral problems is a propensity for making false allegations against other residents. C.H. is also very suggestible and easily led to agree with what someone tells him. Mr. Rodrigues stated that he is working with C.H. on these problems, but that they have proven relatively intractable. Mr. Rodrigues had no firsthand knowledge of the events alleged to have occurred at Jim Tin Group Home on January 14, 2009. Mr. Rodrigues testified that his impressions of the group home were that the accommodations and food seemed appropriate, and that facility staff appeared to be ensuring that the residents' activities of daily living were adequately maintained. During cross-examination, Ms. Hollingsworth conceded that C.H. changed his story during the course of the investigation. C.H. recanted his allegation and denied that he and M.K. ever engaged sexually. Ms. Hollingsworth testified that Ms. Rella had failed to conduct a site visit of the group home, that she never interviewed C.H.'s support coordinator or counselor, and that she never interviewed Mr. Hines. Ms. Rella spoke to no one who had dealt with C.H. over an extended period of time or who could provide perspective as to the child's historic patterns of behavior. Ms. Hollingsworth testified that, based on what she knew now, her recommendation would be to find that the allegations made by C.H. were "not substantiated." In fact, she had made a request to DCF headquarters in Tallahassee to change the conclusion in Ms. Rella's report. Jim Smith, APD's Area 3 administrator, testified that APD filed its complaint against Respondent in complete reliance on DCF's finding of a verified incident of inadequate supervision. APD does not conduct its own investigations and does not review DCF's reports for accuracy. Had DCF found that the allegations against Respondent were "not substantiated," APD would not have filed the Administrative Complaint that initiated this proceeding. The DCF investigative report is a hearsay document. It was admitted into evidence for the limited purpose of supplementing Ms. Hollingsworth's testimony that DCF had in fact "verified" the abuse complaint. APD argued that the report should be admitted for all purposes under the business records exception set forth in section 90.803(6), Florida Statutes. This argument is unavailing because C.H., the main source of information for the report, showed a lack of trustworthiness. APD has not demonstrated by clear and convincing evidence that Respondent failed to adequately supervise residents and sufficiently protect them from harm, neglect, and sexual abuse.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Persons with Disabilities enter a final order dismissing the Administrative Complaint. DONE AND ENTERED this 14th day of April, 2011, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of April, 2011. COPIES FURNISHED: Julie Waldman, Esquire Agency for Person with Disabilities 1621 Northeast Waldo Road Gainesville, Florida 32609 M. Todd Hingson, Esquire Avera & Smith, LLP 248 North Marion Avenue, Suite 102 Lake City, Florida 32055 Christina Nieto Seifert, Esquire Avera & Smith, LLP 248 North Marion Avenue Suite 102 Lake City, Florida 32055 Percy W. Mallison, Jr., Agency Clerk Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 Michael Palecki, General Counsel Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 Bryan Vaughan, Acting Executive Director Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950
Findings Of Fact In April, 1993, Respondent took over operation of a residential facility known as the Linton Group Home. From that date until May 31, 1995, Respondent and her staff cared for developmentally disabled children in that facility on a permanent basis. The facility was located in Marion County, Florida. The facility operated in accordance with Chapter 393, Florida Statutes and in Chapter 10F-6, Florida Administrative Code. Historically, Respondent had assisted her mother in running the group home in the years 1987 and 1988 on a part-time basis. Respondent's involvement with the group home became permanent in 1989. The group home was opened by Respondent's mother in 1985. Respondent began operating the group home when her mother died. Respondent and two or three employees routinely worked at the group home. Respondent's principle income in the time period at issue was derived from the operation of the group home facility. Following a facility inspection by Petitioner's employee conducted on May 8, 1995, to consider license renewal, the group home was granted a conditional license for the period June 1, 1995 through June 30, 1995. The license was not renewed beyond June 30 based upon the allegations previously described. The decision not to renew the facility license for the annual period was made on June 29, 1995 and notice was provided to Respondent. As of June 30, 1995, seven boys were in residence in the group home ages 13 to 18, with varying levels of disability concerning their level of function both physically and mentally. The clients residing in the facility required and had been given constant supervision. However, they were not a threat to run away from the home. At relevant times, in the event that a client was home from school someone was available to supervise the client. At relevant times Respondent's personal residence was one and a half miles from the group home. Respondent lived there with her children and husband, Willie Smith. The children were not those of Respondent and Mr. Smith. When Respondent took over ownership and operation of the group home she and other existing employees at the facility had been qualified to provide direct services to the clients through a background screening process. To successfully complete the background screening a prospective direct service provider must submit a fingerprint card, and affidavit on good moral character, undergo screening by local law enforcement, the Florida Department of Law Enforcement, and the FBI through use of the fingerprint card and prior to October 1, 1995 scrutiny by the Petitioner concerning the State child abuse registry. At relevant times Respondent understood that she was responsible for securing all the necessary information to do a background screening. She further understood that she had seven days from the time at which a person was employed at the group home to submit the background screening information for assessment. For a time she did not realize that the operator was responsible for paying a fee for processing the fingerprint card. When the May 8, 1995 inspection was made Respondent became aware that a fee was assessed for that process. At relevant times Respondent was aware that appropriate background screening was necessary to maintain the group home license to operate the facility in Florida. Respondent understood that if background screening information was not submitted that an existing license to operate the facility could be revoked or the license could be denied upon the annual request for renewal. In relevant times to the proceeding Hilda Spotts worked in the Petitioner's Developmental Services Program Office. That office serves developmentally disabled children ages 3 to adult and is involved with group homes in which those children reside. Ms. Spotts was involved with the licensure of group homes in District 13, to include Respondent's group home. In June, 1994, Respondent called Ms. Spotts to inform Ms. Spotts that Respondent had married Mr. Smith. In that conversation Ms. Spotts asked Respondent for information to perform a background assessment on the husband to include a fingerprint card and a completed HRS Form 1651 which is associated with the screening process. Ms. Spotts did not receive the information to perform the background screening in 1994. Instead, there was a second conversation in which Respondent told Ms. Spotts that the husband would not be involved in the daily activities of the group home as an employee of the home. On that occasion Ms. Spotts gave a packet to the Respondent that would be needed to perform the background assessment. However, Ms. Spotts told the Respondent that Ms. Spotts would check with another employee of Petitioner to see if the husband needed to complete those forms. The conversation was concluded on the basis that Ms. Spotts would inform the Respondent concerning the necessity for Mr. Smith to undergo background screening. Within the first six months of the marriage between Respondent and Mr. Smith, the husband did not work at the group home. His employment began before the May 8, 1995 survey at which the Respondent stated that the husband was doing lawn work and maintenance at the group home. At that time Respondent held to the opinion that the situation with her husband was no different than other maintenance people who worked at the group home and who were not required to have background screening conducted. Later Ms. Spotts called the Respondent to tell her that the husband did not need screening but Ms. Spotts reminded the Respondent that the husband needed to be listed for purposes of the annual license review. The next annual review beyond that point in time was performed on May 8, 1995. Ms. Spotts had made the determination that the husband did not need screening at that time based upon her analysis and conversations with personnel at Petitioner's District 3 office in Gainesville, Florida. Ms. Spotts had further stated that if the husband began working in the home he would need to be screened. Respondent added Mr. Smith to the list of employee names on Form 1651 in the annual renewal application dated April 20, 1995 and signed by Respondent. This was consistent with the request by Ms. Spotts that Respondent report Mr. Smith's name on the annual renewal request. Beyond those persons who were working at the group home when Respondent became the owner/operator, Respondent submitted three additional names for background screening. Among the persons who were screened was Brenda Wilson whose screening information was submitted to Pat Joyner an employee of Petitioner at District 3 who is responsible for background screening compliance in that district and District 13. Ms. Wilson was qualified and there exists no dispute concerning her background. Ms. Joyner performs background screens based upon the availability of the person's name, date of birth, social security number and fingerprints. Another employee for whom Respondent submitted background screening information was Sam Graham. This information was sent to Ms. Spotts. Mr. Graham worked for only one week at the facility. No response was received concerning his background screening. Before information was submitted for background screening on Mr. Graham Respondent was told by Ms. Spotts that the Petitioner's Districts had been separated. That referred to Districts 3 and 13. In fact in approximately the spring of 1994 five counties were separated from District 3 and placed within District 13. Marion County was among those counties. After the District separation, Ms. Spotts told Respondent that in the future that the Linton Group Home would not have any dealings with District 3 and that Respondent should deal with District 13. At that time Ms. Spotts did not tell the Respondent where to send screening requests. Respondent assumed that the screening requests should be forwarded through Ms. Spotts in that Ms. Spotts, had provided Respondent with forms needed to perform the background screening. Another employee for whom information on background screening was submitted was Michael Ivey. The information for Michael Ivey was sent to District 13. Before that information was sent Respondent did not call Ms. Spotts to ask where to send the information. Respondent again operated on the assumption that the Linton Group Home was no longer under the regulatory auspices of District 3 in Gainesville as Ms. Spotts had indicated. Therefore Respondent thought that the information for Mr. Ivey should be sent to Ms. Spotts in Belleview, Florida, where Ms. Spotts had her office. Ms. Spotts has no record of receiving the background screening information on Mr. Ivey, nor does the Petitioner. Prior to the submission in the Ivey case requests for background screening had been sent to the District 3 office in Gainesville, Florida, responsible for background screening. Mr. Ivey worked at the Linton Group Home as a direct service provider from late December, 1994 until mid May, 1995. The record of submission of materials to perform the background screening on Mr. Ivey are as reflected in the files maintained by the group home and examined by Ms. Spotts in the May 8, 1995 inspection for license renewal. In that file there is a copy of a document referred to as a law enforcement check which establishes that Mr. Ivey's record was cleared by the Alachua County Sheriff's Office. Mr. Ivey had also executed an affidavit contained in his personnel file at the group home related to his good moral character. In the group home the files is a copy of the Form 1651 shows that Michael Ivey signed as a applicant for the background screening check and included his name, date of birth and social security number together with his present address. The second part of Form 1651 that is "to be completed by employer, HRS representative or facility requesting background check" and characterizes the nature of the employment was not executed nor signed. Moreover, the requestors name, telephone number, street address, county in which the requester is located and the date upon which the applicant had been employed was not executed. There are occasions in which Petitioner's employees and counselors submit requests for background screens as opposed to that information being requested by the employer. However, it was necessary for Respondent to execute the Ivey documents as the requesting employer in that no prior arrangement had been made to have Ms. Spotts or some other employee for the Petitioner execute the form as a requesting entity. Although it may have been appropriate to assume that the proper place to transmit the request for background screening for Mr. Ivey was through Ms. Spotts, it would be inappropriate to assume that Ms. Spotts would understand or be expected to complete Form 1651 to include information as the requestor for background screening. The practice of not executing Part II to Form 1651 which calls for the employer or an HRS representative or the facility to request the background screening check and sign that request was a practice that Respondent had learned from her mother who formerly operated the Linton Group Home. That practice was carried forward in the submission of the Ivey request for background screening. Respondent did not believe that she needed to indicate that she was requesting the background screening for Mr. Ivey by indicating that Respondent was the employer. Notwithstanding the fact that Part II to Form 1651 was not routinely executed, it was the custom by the Linton Group Home to send other information with the request for background screening to indicate that the screening request related to employment with the Linton Group Home. Related to the request for background screening Respondent acknowledges that the expectation was that information would be returned from Petitioner indicating whether the employee had cleared screening. Within the group home files inspected on May 8, 1995, was found a copy of Mr. Ivey's fingerprints. The law enforcement check made by Alachua County bore an address for Petitioner in Wildwood, Florida. The fingerprint card bore an address for Petitioner in Gainesville, Florida. Both addresses were affixed to forms provided by Petitioner. Although information for Mr. Ivey's background screening had Petitioner's address at Wildwood, Florida, and Gainesville, Florida, on the forms provided by the Petitioner, Respondent recognized that the information for background screening on Mr. Ivey was to be sent to one location. She chose to send it to Ms. Spotts. Respondent was aware that compliance information concerning the background screening request was customarily received from the background agencies notifying the Respondent whether an employee had a "cleared" background. Nonetheless, Respondent did not receive information concerning clearance for Mr. Ivey beyond the clearance by the Alachua County Sheriff's Office which was received on December 7, 1994, the same date that the law enforcement check form provided to that department was signed by Mr. Ivey. In the May 8, 1995 inspection the information that was found concerning background screening for Mr. Ivey did not indicate that he had been cleared by appropriate authorities by placing a stamp on all pertinent requests with the word "clear". The exception being the return from Alachua County Sheriff's Office. When Ms. Spotts conducted the May 1995 inspection at the group home, she asked Respondent about the person or persons who was responsible for conducting repair work at the home. Respondent answered that her husband performed those duties. Respondent indicated that her husband worked both inside and outside the group home, to which Ms. Spotts responded that the husband needed to be screened during this relicensure. Respondent told Ms. Spotts that the husband cut grass at the group home. Respondent told Ms. Spotts that Respondent's husband was repairing walls and halls inside the house. In discussion concerning the need to do a background check for the husband the Respondent told Ms. Spotts that the husband did work at the home when the children were not there. In response Ms. Spotts told the Respondent that children might come back from school while the husband was there. Following this conversation about the need to have the husband checked for his background Ms. Spotts was persuaded that the Respondent had agreed to those arrangements. Those remarks were followed by correspondence dated May 16, 1995, in which Ms. Spotts informed Respondent that the Respondent needed to have a complete background screening check performed on the husband. With this correspondence Ms. Spotts enclosed a local law enforcement check form and advised the Respondent to sign the background check form and have her husband sign and return the executed information within ten days with an appropriate fee of $32.00 for processing the fingerprint card. The correspondence reminded the Respondent that the issue of background screening for the husband was important and needed prompt attention. Respondent received the correspondence. Respondent did not send Ms. Spotts the background screening information as requested. Ms. Spotts had in mind promptly processing the information on the husband to facilitate granting the Respondent a 90-day license pending the processing of information about the husband's background. When Ms. Spotts conducted her inspection Mr. Ivey was present on that day. After Ms. Spotts had examined the information in the personnel file for Mr. Ivey that has been described she asked the Respondent about Mr. Ivey's employment status. Respondent indicated that Mr. Ivey had been employed since January, 1995. Ms. Spotts noted that there was no abuse registry clearance information or local information other than Alachua County Sheriff's Office information or FBI information concerning clearance of Mr. Ivey available in the records at the group home. The group home is expected to maintain clearance information. Petitioner does not maintain clearance information concerning group home employees. In response to Ms. Spotts' questions about Mr. Ivey's status Respondent told Ms. Spotts that Respondent had sent the clearance request forms to Ms. Spotts. The information sent by Respondent to Ms. Spotts when seeking background screening for Mr. Ivey included an application form provided by HRS, an affidavit of good moral character, a Sheriff's statement, a fingerprint card, HRS Form 1651 and information concerning rules of the Linton Group Home. On May 8, 1995, when Ms. Spotts informed Respondent that the information related to Michael Ivey's background screening was incomplete this was the first time that Respondent realized the deficiency. Ms. Spotts' view is that information concerning background screening and clearance for employees in a group home is sent to Ms. Joyner in District 3, whereas information concerning the owner/operator clearance goes to Ms. Spotts at District 13. It is not clear that Respondent understood this distinction. It is not clear whether the Ms. Spotts eventual instruction to Respondent to send background information to screen employees to Ms. Joyner occurred before or after information was sent to Ms. Spotts related to screening for Mr. Ivey. Notwithstanding the special disposition of the background screening for the husband which was requested in May, 1995, to be processed through Ms. Spotts to accommodate the issuance of a 90-day license to the Respondent, earlier in 1995 Ms. Spotts had told the Respondent that the background screening for employees at the group home should be processed through Ms. Joyner. Ms. Spotts was not sure what the Respondent's understanding of the appropriate place to send background screening information for employees prior to this 1995 conversation. Not finding sufficient information concerning Mr. Ivey, Ms. Spotts asked the Respondent to re-submit the request for clearance for that employee. As with the information pertaining to the husband, Respondent was instructed to send the information to Ms. Spotts to accommodate the issuance of a 90-day license pending the processing of information about Mr. Ivey's background. Respondent did not re-submit information for background screening for Mr. Ivey. Ms. Spotts provided Respondent with necessary forms to submit for background screening for employees. At the end of May, 1995, Ms. Spotts called Respondent to inquire concerning the submission of background screening information for the husband and Mr. Ivey. Respondent told Ms. Spotts that the husband had gone to Nevada around May 19, 1995, and that Mr. Ivey had quit on that date. During this conversation at the end of May, Respondent told Ms. Spotts that Respondent was not sure when the husband would return from Nevada. In fact, Respondent knew that her husband was in jail based upon the domestic violence complaint that Respondent had placed against her husband. In this conversation Respondent did not wish to talk with Ms. Spotts because Respondent had visitors in her home. She did not tell Ms. Spotts about the husband's incarceration in this conversation because she did not want the people who were visiting and standing in the room where she was on the phone to hear that her husband was in jail. In the conversation in late May, 1995, Ms. Spotts told Respondent that Respondent had 30 days to "rectify the problem" or loose the license for the group home. This is taken to mean obtaining background information for the husband and Mr. Ivey. In a subsequent conversation around June 7, 1995, the Respondent told Ms. Spotts that the husband had been in jail and was no longer living in the family home. Respondent also told Ms. Spotts that the Respondent was involved with paying for a motel in Ocala, Florida, for the husband's residence. In this conversation, Respondent informed Ms. Spotts that her husband had been in jail because of a domestic dispute. Respondent also told Ms. Spotts that she did not know when she could get the necessary information from the husband to process the background screening requested by Ms. Spotts. The problem which Respondent explained to Ms. Spotts concerning the background screening for the husband was the inability to get a copy of the husband's fingerprints. Respondent remarked in that conversation that the husband had been doing a little work around the house and working in the yard. Respondent also remarked that she did not think that it was necessary to have background screening but she would have it done when her husband was released from jail. Respondent made no mention concerning the possibility that her husband would return to work at the group home. The husband was released from incarceration on June 8, 1995 and returned to jail on June 13, 1995 and was released again on August 25, 1995. In the June 7, 1995 conversation, Respondent asked if Elsa Alvarez from the Petitioner agency had contacted Ms. Spotts about the pending investigation of Respondent and her children associated with the domestic violence case. In the conversation the Respondent told Ms. Spotts that the Respondent had a restraining order against her husband but that the restraining order did not pertain to the husband and his ability to access the group home. Ms. Spotts suggested that the restraining order be modified to place the additional prohibition on the husband. Respondent indicated that she would pursue this suggestion with her lawyer. The restraining order was never modified to prohibit the husband from having access to the group home. Once Ms. Spotts found out that the Respondent had acted to restrain or enjoin the husband from acts directed to the Respondent she asked that a copy of the injunction be posted at the group home. Respondent complied with that request. In addition to placing the May 31, 1995 restraining order on a bulletin board at the group home, Respondent told the staff members that her husband was not to "come around". Given the pendency of the background screening for the husband, a conditional license was issued to the group home effective June 1, 1995, with a 30-day license period. The basis for this decision was premised upon Ms. Spotts' belief that the husband would return from his trip to Nevada and be employed at the group home. On June 5, 1995, Ms. Spotts sent Respondent correspondence indicating that the license for the group had been renewed for the 30-day period pending completion of the background information on Respondent's husband. That correspondence indicated that a meeting would be held with the Respondent on June 13, 1995, to discuss the future licensing of the group home beyond the expiration of the conditional license. Respondent received this correspondence. The correspondence was sent before Ms. Spotts became aware that Respondent's husband had been placed in jail. Ms. Spotts continued to insist on a background check on Mr. Smith because she was persuaded by the June 7, 1995 conversation with the Respondent that the Respondent and the husband would reconcile their differences. Throughout the licensing process Ms. Spotts is without knowledge concerning the husband staying in the group home or serving or supervising the clients at that home. Ms. Spotts is not aware of any complaints about Mr. Ivey while he served as a provider at the group home. Respondent's husband never stayed at the group home or had any direct contact with the residents clients. In addition to the work previously described, the work that he did at the group home included changing air- conditioning vents, and light bulbs and one plumbing repair. The husband also moved a bed at the group home while the Respondent was in attendance. On June 13, 1995, Ms. Spotts was informed that the Respondent was getting a dissolution of the marriage to Mr. Smith. In that conversation Respondent told Ms. Spotts that the Respondent did not want the husband around her daughters in their family home. In that connection, the husband's background had been checked in association with the domestic violence situation in the Respondent's home, during which it was discovered that the husband was on the child abuse registry for sexual abuse. Before that time Respondent was unaware that her husband had been named in the abuse registry. That discovery contributed to the decision by the Respondent to seek dissolution of their marriage. Ms. Spotts in conjunction with Carole Perez, Program Administrator for Developmental Services at District 13, decided to not hold the June 13, 1995 meeting to discuss further licensure in view of problems perceived with the background screening related to Mr. Ivey and Respondent's husband, having in mind the high level of dependency by the clients that were served by the group home, some of whom were unable to communicate. In their opinion those circumstances demanded providers who met all necessary requirements to include background screening. In determining to deny license renewal Ms. Spotts and her supervisor Carol Perez were concerned about Respondent's honesty in cooperating with Petitioner in having a background screen performed on the husband, and whether the cooperation was not forthcoming as a means by Respondent to avoid the possibility that the husband would not be cleared and the possibility that Respondent's husband would have continuing contact with the group home. The Petitioner in the person of Ms. Spotts and Ms. Perez decided to cancel the June 13, 1995 meeting to consider license renewal after consultation with representatives of the children and families program who were conducting an investigation about the group home. Respondent was notified of the cancellation. The children were removed from the home and placed in other licensed facilities or returned to their respective homes on June 20, 1995. At hearing Respondent admitted that there was a possibility that the husband would have returned to her personal home following his incarceration. That possibility ended when the Respondent learned for the first time that her husband was a confirmed child abuser as recognized by the child abuse registry in Florida. This knowledge came about based upon an investigation into the domestic violence situation that has been described. Respondent's husband had been incarcerated based upon the alleged domestic violence against Respondent. That circumstances arose in May, 1995, before Respondent's husband was served with an injunction for protection. The service was made on May 22, 1995. On May 31, 1995, an injunction order for protection was entered in the Circuit Court, Fifth Judicial Circuit in and for Marion County, Florida. In operative terms the injunction enjoined and restrained the husband from threatening, assaulting, harassing or otherwise physically or mentally abusing the Petitioner. The order was not intended to enjoin the Respondent's husband from contact with her. The order describes that those parties (husband and wife) could have peaceful, non-threatening, nonviolent contact. The court had entered a preliminary injunction on May 20, 1995, as modified by the May 31, 1995 order. On June 19, 1995, Respondent petitioned for dissolution of marriage from Mr. Smith. On August 14, 1995, the final judgement of dissolution was entered. The final order dissolving the marriage kept in place the injunction entered on May 31, 1995, and awarded exclusive possession of the personal residence to Respondent and enjoined her former husband from coming to that premises. Respondent assumed that the necessity to obtain background information ended when the Respondent made the decision to seek dissolution of the marriage. At present Respondent does not have the Linton Group Home in her control.
Recommendation Upon consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: That a Final Order be entered which grants Respondent permission to renew the group home license upon the payment of a $750.00 fine. DONE and ENTERED this 14th day of February, 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 14th day of February, 1996. APPENDIX CASE NO. 95-3741 The following discussion is given concerning the proposed findings of fact by the parties: Petitioner's Facts: Paragraph 1 is acknowledged in the preliminary statement to the recommend order. Paragraph 2 is subordinate to facts found. Paragraph 3 is subordinate to facts found with the exception of the sentence pertaining to the affidavit of good moral character. The affidavit was available. Paragraphs 4 through the first two sentences in Paragraph 16 are subordinate to facts found. The last sentence in Paragraph 16 is not necessary to the resolution of the dispute. Paragraphs 17 through 23 are subordinate to facts found. Respondent's Facts: Paragraphs 1 through 9 are subordinate to facts found. Paragraph 10 is not necessary to the resolution of the dispute. Paragraphs 11 through 25 are subordinate to facts found. COPIES FURNISHED: Ralph J. McMurphy, Esquire HRS District 13 Legal Office 1601 West Gulf-Atlantic Highway Wildwood, FL 34785 Frederick E. Landt, III, Esquire 445 NE 8th Avenue Post Office Box 2045 Ocala, FL 34478 Sandy Coulter, Acting Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Kim Tucker, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700
The Issue The issue in this case is whether Respondents' foster home license should be revoked for violating Florida Administrative Code Rule 65C-13.030(3).
Findings Of Fact The Department is the state agency responsible for foster care licensing, pursuant to section 409.175, Florida Statutes, and Florida Administrative Code Chapter 65C-13. Respondents are a mother, Mary Highsmith, and daughter, Dawndrell Martin, who reside together and obtained a joint license to provide foster care to children on November 16, 2017. On July 16, 2018, the Department’s Florida Abuse Hotline received an abuse report regarding B.H., a five-year-old female, who had been previously removed from her parents due to abuse, abandonment, or neglect and placed in the foster home of Respondents in November of 2017. The abuse report stated that B.H. had bruising on her back, face, and on top of her head. B.H. told the abuse reporter that “TT” had hit her with a brush or comb. “TT” was B.H.’s nickname for Ms. Martin. Daniel Henry, a child protective investigator with the Department, was assigned to investigate the abuse report. He interviewed B.H., who told him that Ms. Martin had punished her by hitting her with a comb, a switch, and a flip-flop and that Ms. Highsmith had repeatedly “thumped” her forehead with a flick of her finger. Mr. Henry interviewed the reporter of the abuse. He contacted local law enforcement to facilitate a joint investigation, contacted the Department’s licensing staff, and interviewed Respondents. Based on B.H.’s statements, Mr. Henry immediately referred the case to the CPT. The CPT is an independent entity created by statute and overseen by an interagency agreement between the Department of Children and Families and the Department of Health. Among other services, the CPT performs assessments that include medical evaluations, specialized clinical interviews, and forensic interviews. See § 39.303, Fla. Stat. In this case, B.H.’s physical injuries led the CPT to arrange a forensic interview and a medical evaluation of the child. Kimberly Dykes is an ARNP working for the CPT. She has undergone specialized training in child maltreatment, including the nature, origin, manifestations, and symptoms of abuse and injuries inflicted upon minor children. Her training included recognizing the difference between accidental and intentional injuries. Ms. Dykes performed a medical examination and interviewed B.H. about the cause of her injuries. Ms. Dykes concluded that B.H.’s wounds were consistent with inflicted injury, and were consistent with the causation described by the child as “having been repeatedly struck with a comb and a switch and having been repeatedly thumped in the forehead.” Ms. Dykes testified that she spoke with the investigator for the Jackson County Sheriff’s Office, Sergeant Cheree Edwards. Ms. Dykes stated that Sgt. Edwards provided her with the explanations that Respondents had offered for B.H.’s injuries. Ms. Dykes testified that she was able to medically rule out each of these explanations as lacking appropriate medical and testimonial support for their causation. Ms. Dykes further recommended that B.H. be removed from Respondents’ home and placed in alternate custody. Angela Griffin is a specialist with the CPT, who is certified to provide specialized clinical interviews and forensic interviews of minor children. Ms. Griffin conducted a forensic interview of B.H. Ms. Griffin testified as to the safeguards necessary to protect the integrity of the interview process with a child, such as building rapport, discussing the difference between telling the truth and telling a lie, and explaining the “rules of the room” to the child, including the fact that the interview will be recorded and that the child should make it known if she does not understand a question. Ms. Griffin stated that she employed all these safeguards during her interview with B.H. During her interview with Ms. Griffin, B.H. described how her injuries were inflicted. This description was consistent with the story B.H. told to the abuse reporter, to Mr. Henry, and to Ms. Dykes.1/ B.H. told Ms. Griffin that Ms. Martin had hit her on the head, in the face, and on the back with a comb, a switch, and a flip-flop, and that Ms. Highsmith had thumped her forehead. Upon concluding the forensic interview and medical evaluation, Ms. Griffin and Ms. Dykes provided recommendations for the care of B.H. They recommended that B.H. be removed immediately from the home of Respondents. They further recommended that any and all other children placed with Respondents be removed, and that no further children be placed with them. They recommended counseling for B.H. After concluding his investigation and consulting with the CPT, Mr. Henry verified the allegations of physical abuse by Ms. Martin. He recommended that Respondents’ foster home license be revoked and that no other children be allowed to reside with them. At the hearing, Sgt. Edwards testified as to the investigation she conducted for the Jackson County Sheriff’s Office. She stated that in cases of joint investigation by the Department and law enforcement, the CPT is critical in allowing a single point of contact with the minor victim. It is in the best interest of the child to avoid multiple and redundant interviews that could cause repeated trauma. Following the joint investigation protocol, Sgt. Edwards did not conduct her own interview of B.H., but observed the recording of Ms. Griffin’s interview with B.H. Sgt. Edwards also reviewed the notes made by Mr. Henry, the Department’s investigator. Sgt. Edwards interviewed Respondents and took repeated statements from them regarding possible origins of the injuries to B.H. She allowed Respondents to provide any and all evidence relevant to this matter. Sgt. Edwards testified that she contacted, or attempted to contact, every witness named by Respondents, including the day care teachers, and reviewed every piece of evidence presented by Respondents. During her investigation, Sgt. Edwards discovered a hair comb at Respondents’ residence. A photograph of the comb taken by law enforcement was presented as an exhibit in this proceeding. The photo shows a long-handled “rattail” comb. Sgt. Edwards determined this comb to match the item described by B.H. as the implement used by Ms. Martin to hit her on the head. Ms. Dykes testified that the comb showed in the photograph could easily have been the cause of the injuries to the top of B.H.’s head. Based on her independent investigation, Sgt. Edwards found probable cause to file criminal charges against Ms. Martin for inflicting injury on B.H. At the time of the hearing, the criminal case was still pending. At the hearing, the Department presented 13 photographs, taken by Ms. Griffin, of B.H.’s injuries. The photos detail multiple sources of trauma and bruising to B.H.’s face, head, back, eyes, neck, and scalp. None of the wounds appeared deep or serious, but did appear to be more severe than the usual bumps and bruises a parent expects from an active child. Ms. Dykes testified that the injuries in the photos were entirely consistent with B.H.’s statements that Ms. Martin caused them by hitting her with a comb, a switch, and a flip- flop. Respondents did not testify. Through cross- examination and argument, Respondents were able to put forward some of their explanations for the injuries to B.H. They contended both that B.H. is inclined to self-harm and that the injuries must have been inflicted at Caverns Learning Center, the day care facility that reported the injuries to the Florida Abuse Hotline. They contended that the child may have hit her head on a dresser while bouncing on her bed. They stated that B.H.’s skin had been rubbed raw by a seat belt. Her scalp injuries may have been caused by a harsh shampoo used to treat for lice, or by self-pulling of her hair, or by undiagnosed folliculitis. Ms. Highsmith theorized that the entire case was fabricated by authorities who did not like the fact that black foster parents were caring for white children. Respondents argued that Mr. Henry did not pursue other theories as to the cause of the injuries. For example, he took employees of Caverns Learning Center at their word when they told him B.H. was injured when she arrived at the day care on the morning of July 16, 2018. They also questioned why approximately two hours passed between B.H.’s arrival at the day care and the call to the Florida Abuse Hotline. Mr. Henry plausibly addressed both issues raised by Respondents. He testified that the Department bases its investigations on the identity of the alleged perpetrator. Because B.H. repeatedly and consistently identified Ms. Martin as the person who inflicted the injuries, Mr. Henry saw no reason to cast about for other suspects. Mr. Henry stated that he did not find it unusual for a busy day care to take a couple of hours to report to the abuse hotline. Respondents did not themselves testify on the advice of their criminal defense attorney. Respondents did present the testimony of their licensing specialist, Kristy Hancock, and a “courtesy” dependency case manager, Precious Ingram.2/ Ms. Hancock testified that she was the instructor for Respondents’ foster home licensing class. Respondents were “very engaged” during the seven weeks of coursework and seemed to understand the implications of being foster parents. Ms. Hancock stated that she had visited Respondents’ home and all seemed well.3/ Ms. Hancock also testified that she was aware of “issues” with Caverns Learning Center, but did not elaborate. Ms. Ingram testified that Respondents were cooperative with her when she made her monthly home visits. She observed nothing that would indicate abuse or neglect. She never saw marks on B.H. resembling those in the photographs introduced by the Department. Ms. Ingram stated that she saw nothing out of the ordinary in Respondents’ foster home and never had cause to raise concerns about the care of the children there. Jeanne Durden is employed by Big Bend Community Based Care (“BBCBC”) and is in charge of BBCBC’s licensing responsibilities. BBCBC is a contractor retained by the Department to provide foster care services in Circuits 2 and 14. BBCBC manages foster care licensing for the cited jurisdictions. Ms. Durden testified that it was her responsibility to provide quality assurance for all foster care licensing operations. BBCBC contracts with other entities to provide front line case management, and Ms. Durden provides oversight for those subcontractors. Ms. Durden testified that she removed all of the minor children from Respondents’ home immediately after reviewing the findings of the child protective investigator and the CPT. Ms. Durden also recommended immediate termination and revocation of Respondents’ foster home license. Ms. Durden explained that her recommendation was due to the nature and findings of the Department’s verified child protection abuse report as well as the criminal charges filed against Ms. Martin. She noted that Department rules do not permit corporal punishment of any kind for foster children, because of the traumas these children have already experienced. Ms. Durden did not believe that anything short of revocation was legally appropriate. She opined that mitigation was not possible based on the nature and cause of B.H.’s injuries. Regina Pleas is safety program manager for the Department’s Northwest Region. Among her duties is management of the Department’s licensing operations. BBCBC has the contractual responsibility to recruit, retain, and manage foster homes, but the Department is ultimately responsible for all decisions and maintains final approval for BBCBC’s licensing actions. Ms. Pleas reviewed Ms. Durden’s recommendation of revocation of Respondent’s foster home license. After considering the nature and cause of the injuries inflicted, the consistency of B.H.’s statements, and the analysis of the CPT, Ms. Pleas concurred that revocation was necessary. In considering the appropriateness of revocation, Ms. Pleas also took into account that Respondents were now subject to a verified abuse report, meaning that the Department could no longer place minor children in their care. Ms. Pleas drafted the letter notifying Respondents of the Department’s decision to revoke their foster home license. The letter, dated September 28, 2018, appropriately notified Respondents of the Department’s intended action and of their due process rights in challenging the Department’s preliminary decision.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Children and Families revoking the foster home license of Respondents Dawndrell Martin and Mary Highsmith. DONE AND ENTERED this 22nd day of March, 2019, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of March, 2019.
The Issue Whether Respondents Adams Group Home, Inc., and Joyce Adams' ("Respondents") group home licensure renewal applications should be denied.
Findings Of Fact Parties and Background APD is the state agency charged with regulating the licensing and operation of foster care facilities, group home facilities, and residential centers, pursuant to sections 20.197 and 393.067, Florida Statutes. Under section 393.063(19), a group home facility means a residential facility "which provides a family living environment including supervision and care necessary to meet the physical, emotional, and social needs of its residents." The capacity of such a facility must be at least four but not more than 15 residents. Respondents are licensees of two group home facilities, known as Adams Group Home #1, located at 2400 Oleander Drive, Miramar, Florida 33023, and Adams Group Home #2, located at 7131 Southwest 16th Street, Pembroke Pines, Florida 33023. Respondents' group homes provide a family living environment within a residential, single-family structure with a combined total of not more than 12 adult residents with developmental disabilities. Joyce Adams is Adams Group Homes' corporate officer. Ms. Adams has been licensed through APD to provide group home services for 18 years. Group homes licensed by APD are required to apply for a renewal license every year. The renewal process involves a review of the applications to make sure they are accurate and complete and an observation by a licensing specialist at the facilities to ensure the facilities are in compliance with the applicable statutes and administrative rules. Every year prior to 2018, including 2014 through 2017, Respondents' group home licensure renewal applications for Adams Group Home #1 and Adams Group Home #2 were approved by APD. No evidence was presented at hearing demonstrating that Respondents have ever been the subject of any corrective action plan or proposed disciplinary agency action in the form of an administrative fine, suspension or revocation of a license, or moratorium on admissions, prior to APD's March 13, 2018, denial letter. The March 13, 2018, Denial Letter Against this backdrop, on December 20, 2017, Respondents submitted applications to APD for renewal of the licenses of Adams Group Home #1 and Adams Group Home #2, which were set to expire in March 2018. By letter dated March 13, 2018, APD notified Respondents of the denial of their group home licensure renewal applications. APD's grounds for the denial of the license applications are set forth in the denial letter in four counts. In Counts I and II, APD alleges the Department of Children and Families ("DCF") commenced investigations which resulted in DCF's verified findings of abuse, neglect or exploitation against Ms. Adams in February 2014 and December 2015, respectively. APD further alleges that based on section 393.0673(2), it "may" deny an application for licensure based solely on DCF's verified findings. In Count III, APD alleges Respondents used video cameras in the common areas in 2016 and 2017 without written consents for the common areas in violation of Florida Administrative Code Rule 65G-2.009(7), which constitutes a Class II violation. In "Count IIII," APD alleges that after Hurricane Irma struck south Florida on September 10, 2017, Respondents had "no power at the group home," Respondents utilized a "makeshift grill" less than ten feet from the structure, and failed to care for its residents. APD specifically alleges that on September 19, 2017, a resident of Adams Group Home #2 "was taken to the emergency room at Memorial Regional Hospital for confusion and fever." APD further alleges that Respondents' conduct described in "Count IIII" constitutes Class I violations, and that the conduct violates rule 65G-2.009(1)(d) with regard to the minimum standards of facilities to ensure the health and safety of the residents and address the provision of appropriate physical care and supervision; adhering to and protecting resident rights and freedoms in accordance with the Bill of Rights of Persons with Developmental Disabilities, as provided in section 393.13; and section 393.13(3)(a) and (g), relating to humane care, abuse, neglect, or exploitation. Count I The parties stipulated that on December 29, 2013, DCF commenced an investigation of Respondents' group homes, and that on February 25, 2014, DCF closed its investigation with verified findings of abuse, neglect, or exploitation on the part of Ms. Adams. APD was aware of DCF's verified findings upon completion of DCF's investigation. At hearing, APD provided no witnesses with first-hand knowledge of the specific facts involved in the violation. Instead, APD presented unsigned DCF investigative reports and a DCF supervisor's testimony regarding the general investigative process. At hearing, Ms. Adams explained the facts and circumstances surrounding the violation. Ms. Adams testified the incident involved M.K., a 41-year-old female resident of Respondents' group home since 2006, who is developmentally disabled. According to Ms. Adams, on Sunday, December 29, 2013, M.K. was taken by personal car to the emergency room at Memorial Hospital, Pembroke Pines, where she was admitted. Ms. Adams testified that M.K. had been coughing for a few days, and she had consulted with a nurse practitioner about M.K.'s condition on Thursday, December 26, 2013. However, M.K.'s condition had not improved by Sunday, she looked weak, and Ms. Adams did not want to wait until Monday for M.K. to be seen by a doctor. M.K. was transported to the hospital on Sunday, December 29, 2013, by a facility employee. Emergency (911) had been called for M.K. on approximately eight occasions prior to December 29, 2013. Ms. Adams persuasively and credibly testified she would not have hesitated to call 911 for M.K. if she felt it was necessary. On Monday, December 30, 2013, the next business day, Ms. Adams provided an incident report to APD. Ms. Adams also immediately notified M.K.'s waiver support coordinator. M.K. returned to Respondents' group home after her release from the hospital where she has continued to reside since then. Count II The parties stipulated that on November 4, 2015, DCF commenced an investigation of Respondents' group homes, and that on December 12, 2015, DCF closed its investigation with verified findings of abuse, neglect, or exploitation on the part of Ms. Adams. APD was aware of DCF's verified findings upon completion of DCF's investigation. At hearing, Ashley Cole, regional program supervisor for the southeast region of APD, testified about the facts and circumstances surrounding the violation. The violation involved the use of residents' funds to request a new support coordinator.1/ Specifically, in November 2015, Ms. Cole conducted a review of client files at one of Respondents' group homes, including a review of financial ledgers, and saw disbursements of money from three residents to an attorney, totaling $1,300.00. When asked about this by Ms. Cole, Ms. Adams explained that the funds were used to pay an attorney to write letters on behalf of the three residents requesting new support coordinators. The funds were used to benefit the three residents and the letters were written by Respondents' attorney on behalf of the three residents. At hearing, Ms. Cole testified that it is typical for an APD client or the client's guardian to request a new support coordinator, not the group home owner, and that it is not required that a request for a new support coordinator be in writing. Although it may not be typical for the group home owner to request a new support coordinator in writing on behalf of the residents, it is not prohibited by law. None of the three residents had guardians or family members to assist in the handling of their affairs. Ms. Adams testified that she had attempted to obtain assistance from the current support coordinator to act on the residents' behalf, but to no avail. Two of the residents still resided at Respondents' group home as of the beginning of 2018; the other resident died about a year after the incident for reasons unrelated to the written requests for a new support coordinator. Count III Delmarva Foundation, n/k/a Qlarant, has contracted with the State of Florida to evaluate the performance of group home providers such as those operated by Respondents. On May 31, 2016, Delmarva Foundation Quality Assurance Reviewer Martina Pocaterra performed an unannounced observation visit at one of Respondents' group homes. Ms. Pocaterra observed video cameras in the common areas of the group home. The next morning, Respondents provided consent forms from residents for use of cameras in the bedrooms, but not for use in the common areas of the group home. Because there were no consent forms signed by residents allowing the use of video cameras in the common areas, an alert notification form was submitted to APD. On October 3, 2017, Delmarva Foundation Quality Assurance Reviewer Michelle Ceville performed a provider discovery review at one of Respondents' group homes. On this occasion, Ms. Ceville observed video cameras in the common areas of the group home. Respondents again provided consent forms from residents for use of cameras in the bedrooms, but not for use in the common areas. Because there were no consent forms signed by residents allowing the use of video cameras in the common areas, an alert notification form was submitted to APD. The clear and convincing evidence adduced at hearing demonstrates that Respondents violated rule 65G-2.009(7)(a) and (b) by failing to obtain written consent of residents for the use of video monitoring equipment in the common areas. "Count IIII" On September 10, 2017, Hurricane Irma struck Florida. After the hurricane, APD contacted group homes to ensure that the homes had electricity, lights, and air conditioning, and that the homes were safe. On September 15, 2017, Adams Group Home, Inc., informed APD that Adams Group Home #2 had electricity and running water, and that Adams Group Home #2 residents had not been evacuated. On September 19, 2017, Kimberly Robinson, an APD human services program analyst, conducted a wellness check at one of Respondents' group homes. It is unclear from Ms. Robinson's testimony which group home she actually visited. However, Ms. Robinson observed that the home had air conditioning, and that "everything in the home was fine." On September 19, 2017, Pembroke Pines Assistant Fire Marshal Shawn Hallich visited Adams Group Home #2 and conducted an inspection. He testified that he "did a walk around real quick," and that on the enclosed outdoor patio on the back porch of the home, he noticed "a pot on two blocks with two pieces of wood and an open flame with charcoal, and something . . . being cooked on it." According to Mr. Hallich, the cooking device was located on the back patio "approximately, probably 10 feet from the sliding glass door, maybe a little bit less than that." Mr. Hallich did not use any device to measure the distance of the cooking device from the structure of the home. Mr. Hallich testified that the cooking device was a safety hazard because there was an open flame and there was nothing to prevent the cooking device from being tipped over or falling over on its own. During his inspection, Mr. Hallich also observed that there was no air conditioning inside the home. There was some electricity inside the home, but not enough voltage necessary for the air conditioning system to operate. However, there were fans located and operating in every room of the home, and the windows were open. Mr. Hallich testified it was hot, but he did not use any device to measure the temperature inside the home. Mr. Hallich also acknowledged that if the fans were on inside the home, the circulation would have made it feel cooler inside the home. On September 19, 2017, Mr. Hallich issued a Notice of Violation, stating the nature of the violation as: "No air conditioning and unsafe cooking practices being conducted." Mr. Hallich recommended the following action be taken: (1) "Must relocate all residence [sic] until all power has been restored[; (2)] All cooking must be conducted at least 10 feet away from the structure using a commercial cooking appliance." As to the violation found by Mr. Hallich with respect to the outside cooking device, Ms. Adams asked Mr. Hallich whether she could use it outside, and he told her that "it had to be 10 feet away from the structure for cooking." In issuing the Notice of Violation with respect to the cooking device, Mr. Hallich specifically relied on section 10.10.6.1 of the Florida Fire Prevention Code which provides as follows: For other than one- and two-family dwellings, no hibachi, grill, or other similar devices used for cooking, heating, or any other purpose shall be used or kindled on any Balcony, under any overhanging portion, or within 10 ft (3 m) of any structure. Mr. Hallich's reliance on section 10.10.6.1 of the Florida Fire Prevention Code is misplaced because Adams Group Home #2 is a single-family dwelling. As a single- family dwelling, Respondents' group home is exempt from section 10.10.6.1. In any event, APD failed to present clear and convincing evidence that the cooking device was located within ten feet of the single-family dwelling. In addition, APD failed to present clear and convincing evidence that any residents of the group home were taken to the hospital or were not properly cared for by Respondents because of the lack of air conditioning. In sum, APD failed to present clear and convincing evidence at hearing to demonstrate a violation of rule 65G- 2.009(1)(d) and section 393.13.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that that the Agency for Persons with Disability enter a final order granting Respondents' applications for licensure renewal.3/ DONE AND ENTERED this 22nd day of August, 2018, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of August, 2018.
The Issue Whether Petitioner's application for re-licensure as a family foster home should be approved or denied.
Findings Of Fact Petitioner, Lorraine Arnold, has operated a foster home since 1995 at her current place of residence. Petitioner applied for and was granted a family foster home license in January 1995. Petitioner was approved for placement of up to two children between the ages of 5 and 10 years. Foster home licenses are valid for one year and must be renewed annually. Petitioner's license was renewed annually thereafter. On December 15, 2000, Petitioner applied to renew her foster home license. Respondent denied Petitioner's application for renewal on March 9, 2001. During the relevant time-period in 2000, Petitioner was entrusted with responsibility for several children, including two teenage foster children, L. C. and J. B. In late August 2000, Respondent's case worker approached Petitioner with the request to accept into her home L. C., a 17-year-old female. Petitioner was told that L. C. was severely emotionally disturbed (SED), had violent behavior problems and was taking psychotropic medication. Because of L. C.'s history of behavioral problems, including incidents of violence, Respondent offered to contract with a private company to provide Certified Nursing Assistant (CNA) services to supplement the care given to L. C. Contract CNAs were to be present with L. C. around the clock, in order to provide Petitioner and her family some semblance of protection in the event of a violent outburst by L. C. This case worker assured her that under the watchful eye of the CNAs, L. C. would do fine. Petitioner was provided with additional monetary inducements by Respondent in order to persuade Petitioner to take in L. C. Upon placement, L. C.'s "Blue Book" was not provided to Petitioner. The "Blue Book" contained critical medical and social information about L. C. In addition, L. C. was not under the care of any local healthcare professional at the time of placement. Although Petitioner is a licensed pharmacist in Florida, she has received no special training in dealing with SED children. No specialized training of any kind was provided by Respondent during the two months that L. C. lived in Petitioner's home. Respondent was aware that L. C.'s needs required that she be placed in a living situation where she could receive proper therapy for her special needs, but none was provided. Respondent's conduct in the placement of L. C. in Petitioner's home violated its own guidelines and demonstrated very poor judgment on its part. The presence of contract CNAs was not intended to, nor did it in fact, relieve Petitioner of her responsibility to supervise foster children in her care. However, Petitioner was not instructed by Respondent that the teenage children in her care were not permitted to be alone or leave with the CNA, if the CNA offered to take them out for a supervised activity. In August of 2000, Petitioner gave L. C. and J. B., both minor girls, permission to go with the CNA, then on duty, to the home of L. C.'s aunt. While at the home of L. C.'s aunt, J. B., then fourteen years old, slipped out of the house and smoked marijuana. When J. B.'s case worker learned of the incident, she had J. B. tested for drug usage; J. B. tested positive for marijuana. Petitioner had L. C. tested and her test results were negative. Carla Washington, case worker for both L. C. and J. B., had previously informed Petitioner that L. C. was not to have contact with family members that was not supervised by Respondent. Petitioner misunderstood the instructions, and believed that L. C. was only restricted from having contact with her mother. Petitioner was not negligent in this incident, and J. B.'s misconduct could not have reasonably been foreseen. Less than a month before the incident in which J. B. smoked marijuana at L. C.'s aunt's house, there were two other incidents involving J. B. and L. C., with results detrimental to the foster children. On one occasion, Petitioner gave permission for the CNA on duty to take L. C. and another foster child out to the movies. Because of a family emergency, Petitioner left Orlando and drove to Tallahassee, leaving her adult daughter in charge of the household. The CNA took the two foster children to her residence, changed into "hoochie" clothes, went to a bar during which L. C. visited with her mother and witnessed a shooting. After the incident, the case worker spoke to Petitioner and reminded her that L. C. was not to have unsupervised contact with her mother. Petitioner complied with these instructions. No evidence was presented concerning the disposition of the CNA that perpetrated this outrageous conduct. Petitioner was not negligent in giving permission for the girls to go to the movies, and the CNA's conduct could not have been foreseen. On September 14, 2000, Petitioner was placed in a position of duress in regard to L. C. She had not received L. C.'s Blue Book, which contained all of her medical records and her Medicaid number, and L. C. was out of all of her psychotropic medications. Petitioner tried several times to find a psychiatrist who would treat L. C. She spent 2 days looking through the telephone book and calling every psychiatrist until she found one who would accept Medicaid. She also went to the Nemours Children's Clinic and spent most of the day waiting at the Sanford Health Department, where Petitioner finally discovered that L. C. could only be seen by a doctor in the Oviedo area. When the doctor in Oviedo was contacted an appointment was made for the following day at 2:00 p.m. Petitioner contacted the caseworker for assistance in getting L. C. to the doctor's appointment because Petitioner was unable to remain out of work for a third day. The case worker informed Petitioner that she was unable to assist, and if Petitioner did not see that the child got to the doctor any repercussions would be Petitioner's responsibility. Petitioner was given no choice but to rely on a family member to assist in making sure that L. C. received the required medical attention. Petitioner asked a family member to take L. C. and J. B. to the doctor's appointment. He left them in the reception area for 20 minutes to run an errand while L. C. waited to see the doctor. Before he returned, L. C. and J. B. misbehaved at the doctor's office. The adult family member did not have reason to believe that these two teenagers could not be left alone at a doctor's office for 20 minutes. He expected that the teenagers would behave themselves for such a short period of time. During the course of her testimony in this matter, J. B. testified that she had sexual relations in the house while living with Petitioner. This testimony is neither credible nor relevant to this proceeding. Petitioner has not committed an intentional or negligent act which materially affected the health or safety of L. C. or J. B. while in her care. Several years in the past, Petitioner used corporal punishment on a much younger, uncontrollable foster child on more than one occasion. Upon receiving counseling from her case worker, Petitioner agreed to corrective action to address her improper use of corporal punishment of foster children entrusted to her care. Over time, Petitioner has displayed extreme care and concern for the children placed in her care. She has taken the issues of supervision seriously. Petitioner has demonstrated that as a foster mother she has given the children placed in her care an abundance of love. She has taught them how to care for and love themselves. She has been there to listen to their needs and their desires, and she cares about them. She has taught them that self- control, self-discipline and hard work will lead to success in life.
Recommendation Therefore, it is RECOMMENDED that the Secretary grant Petitioner's application for renewal of her family foster home license. DONE AND ENTERED this 23rd day of October, 2001, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of October, 2001. COPIES FURNISHED: Lorraine Arnold 3997 Biscayne Drive Winter Springs, Florida 32708 Craig A. McCarthy, Esquire Department of Children and Family Services 400 West Robinson Street Suite S-1106 Orlando, Florida 32801 Virginia A. Daire, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
