The Issue The issue is whether revocation of the foster home care license of Petitioner was properly based upon his abuse of a child in his care.
Findings Of Fact Under Sections 409.175(3)(a) and 409.175(4)(a), Florida Statutes, the Department of Children and Family Services is the state agency responsible for licensing and monitoring foster care homes. Under Section 409.175(8), Florida Statutes, the Department has authority to deny, suspend, or revoke a foster home license. At all times material to this case, Petitioner, Steven A. Schick, was a licensed foster care parent in Pasco County, Florida. C. B., a 13-year-old male, was a foster child in Petitioner's care from late November 1999 until his removal from Petitioner's foster care home on or about January 6, 2000, by the Department of Children and Family Services. At the final hearing, and after questioning, C. B. was found competent to testify. On more than one occasion, usually late at night, Petitioner entered C. B.'s room and fondled his genitals. On at least one of these late night visits, C. B. felt what he believed to be Petitioner's mouth touching his genitals. C. B. explained that initially he was afraid to report these incidents to adults for fear that they would not believe him. He did not report these incidents to the Department because he feared a return to the Personal Enrichment through the Mental Health Services (PEMHS) program facility. C. B. is presently taking Aderol, a depression medicine, and he was taking his medication during the late night visits to his room by Petitioner. C. B. told his friend, A. B., and A. B.'s mother about Petitioner's late night visits on or about January 6, 2000. An abuse report was called into the Department, who called the police. The police arrived at Petitioner's residence approximately 11:00 p.m. on January 6, 2000, interviewed C. B., A. B., A. B.'s mother, and the Petitioner. C. B.'s testimony did not vary significantly from the testimony of Deputy Bradford Seltman, the first police officer on the scene, or from the allegations contained in the Abuse Report #2000-3014. Petitioner denied the allegations made by C. B. during C. B.'s seven-week stay in Petitioner's home as a foster child. Petitioner offered uncorroborated speculation on C. B.'s motive in making the abuse allegations, to wit: C. B. became resentful after he became aware that Petitioner was going to adopt another boy; C. B. had a fight at school resulting in an in-school suspension; C. B. and A. B. having been caught viewing an internet sex site and ordered by Petitioner to stop and go to bed; C. B. wanted to spend the night at A. B.'s house and when ordered by Petitioner to come home he became angry, and C. B., having many opportunities, did not mention those allegations to any adults prior to January 6, 2000. C. B., in his testimony, admitted the truth of the several incidents testified to by Petitioner. C. B. refuted, however, Petitioner's assertion that those incidents were the reason he told A. B. and A. B.'s mother of the sexual encounters that had occurred over the seven-week period of time he was in Petitioner's care.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Children and Family Services, enter a Final Order revoking the foster care license of Petitioner, Steven A. Schick. DONE AND ENTERED this 20th day of April, 2001, in Tallahassee, Leon County, Florida. FRED L. BUCKINE 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 20th day of April, 2001. COPIES FURNISHED: Keith J. Ganobsik, Esquire Department of Children and Family Services 11351 Ulmerton Road, Suite 100 Largo, Florida 33778-1630 Nicholas L. Ottaviano, Esquire Sharp, Ottaviano, & Barnes 24710 U.S. Highway 19 North, Suite 104 Clearwater, Florida 33763 Virginia A. Daire, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700
Findings Of Fact The findings of fact contained in the recommended order are adopted and incorporated by reference as though fully set forth herein.
The Issue The issue in this case is whether Petitioner's request for exemption for disqualification should be approved.
Findings Of Fact Upon completion of high school, J.D. was employed at Walt Disney World in the theme park. It was during her employment at Disney World that J.D. was arrested on April 13, 1990 and charged with possession of a baggie containing 1.5 grams of crack cocaine with intent to sell. J.D. pled nolo contendere to the charges and was placed on two-years probation during which she had to attend a drug treatment program. Having already completed high school, J.D. started going to school while on probation and while she was employed with Red Lobster as a cook and coordinator at night. J.D. held the job with Red Lobster from 1990 to 1993, when she relocated to Jacksonville, Florida. J.D. attended classes at the Orlando Vocational-Technical Center and was awarded a certificate for 56 hours of home health aide in March 1991 and an AIDS four-hour seminar. On March 13, 1992, J.D. was awarded a certificate for completion of care of the Alzheimers client; and on March 17, 1992, J.D. was awarded a certificate of completion of care for the stroke patient. J.D. also successfully completed the basic rescue course in CPR from the American Heart Association issued on March 21, 1992 and March 24, 1992; First Aid, Level 1 from the National Safety Council Orlando Vocational Tech on March 12, 1992; and satisfactorily completed on March 27, 1991 a 72-hour course for the home health aide with competency performance testing. By letter of February 1, 1992, J.D. was informed that she had successfully completed her substance abuse counseling with a discharge diagnosis of cocaine abuse in remission, prognosis fair, provided she follows recommendations; and the recommendations were (1) abstain from all mood-altering substances and (2) attend AA/NA meetings. On May 16, 1994, J.D. was arrested by the Orlando Police Department for possession of cannabis. On June 6, 1994, J.D. appeared before the court, waived her right to counsel, pled nolo contendere to the charge of possession, and was adjudged guilty. As stated above, J.D. relocated to Jacksonville, and a year later was hired on June 1, 1995, as a home health care aide by Living Centers Devcon Point West Cluster, a developmental services facility. J.D. worked with clients who were in need of assistance in their daily living activities, ranging in age from minors to adults. J.D.'s cared for eight clients who were physically disabled and unable to care for themselves. J.D. worked a shift from 2 p.m. to 10 p.m.; and her specific job duties included bathing, feeding, lifting clients from their beds and chairs, and assisting with toiletries, such as combing hair. J.D. received letters of support from her supervisors and co-workers. Mercedes Joyner, Program Supervisor, found J.D. to be a superb worker who demonstrated herself to be a loving, caring, sincere, and motivated individual, who has carried out all of her duties as a responsible person and conducted herself in a professional and respectful manner toward her co-workers and superiors. Sue Fleischmann, Facility Coordinator, found J.D. to be punctual, responsible, considerate and caring with the Developmentally Disabled Clients, and who worked well with her co-workers. Patricia Welch, a co-worker, found J.D. to be a reliable and compassionate person with whom it was outstanding to work. On October 17, 1995, the Petitioner completed a substance abuse course sponsored by Northeast Florida Safety Council, Inc.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is, RECOMMENDED: That the Petitioner be granted the exemption. DONE and ENTERED this 29th day of February, 1996, in Tallahassee, Florida. STEPHEN F. DEAN, 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 29th day of February, 1996. COPIES FURNISHED: J.D. (address of record) Roger L. D. Williams, Esquire Department of Health and Rehabilitative Services Post Office Box 2417 Jacksonville, Florida 32231-0083 Sandy Coulter, Acting 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 are entitled to renewal of their license to operate a foster care home.
Findings Of Fact Petitioners had been licensed to operate a foster care home for several years prior to April 30, 1997. Each license was for a one-year period and required annual renewal. The last license issued by Respondent to Petitioners was for the period May 1, 1996, through April 30, 1997. On March 31, 1997, Respondent advised Petitioners that it would not renew their foster care license because an abuse investigation found evidence that inappropriate methods of discipline had been used by Maxine Miles on V. B., a foster child who had been placed in their care. Respondent provided Petitioners with information and training before they were initially licensed as foster care parents. As part of the initial training, Petitioners attended a thirty-hour course entitled Model Approach to Partnerships in Parenting (MAPP), which taught that corporal punishment on a foster child by a foster parent was prohibited. Petitioners knew, or should have known, that their use of corporal punishment on a foster child in their care could result in the revocation of their license or the denial of their application to renew their license. On February 14, 1996, Petitioners executed a form styled "Discipline Policy Agreement" which expressly prohibits "hitting a foster child with any object" and also prohibits "slapping, smacking, whipping, washing mouth out with soap, and any other for [sic] of physical discipline." This agreement contained a caveat that failure to comply with the discipline provisions could lead to the closure of a foster home. V. B. is a female born December 7, 1990. In 1992, V. B. was placed as a foster child in the care of the Petitioners. On or about February 14, 1997, Nicole Marshal, a foster care counselor employed by Respondent, and Brenda Boston, her supervisor, visited with V. B. and observed marks that they believed were the results of corporal punishment. These marks included a cut on V. B.'s forehead (which had been stitched) and bruises, in the form of loops, on her arms, back, and legs. They questioned V. B. as to the causes of the cut and bruises. Based on statements made by the child, they immediately thereafter contacted the Florida Abuse Hotline Information System and reported a case of possible child abuse. As a result of that contact, a child abuse investigation was instigated by the Respondent's Child Protective Investigations Unit. This child abuse investigation was conducted by Lulus McQueen, an experienced investigator. Mr. McQueen also observed the cut and the bruises on V. B. and thereafter questioned the child. Based on the physical observations and the statements made by the child, V. B. was removed from the foster care of the Petitioners on February 14, 1997. On February 25, 1997, V. B. was examined by Dr. Walter Lambert, a medical doctor employed as the Medical Director of the Child Protection Team, and by Rita Duval, a registered nurse employed by the Child Protection Team. The cut on V. B.'s forehead and the bruises observed on February 14, 1997, were still visible. Dr. Lambert and Nurse Duval were of the opinion that the bruises were consistent with V. B. having been disciplined with a belt.2 Maxine Miles physically disciplined V. B. by spanking her using an open hand.3 Maxine Miles knew, or should have known, that this form of discipline was prohibited by Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order that adopts the findings of fact and conclusions of law contained herein. It is further recommended that the application filed by Larry and Maxine Miles for the renewal of their licenses to operate a foster home be denied. DONE AND ORDERED this 9th day of January, 1998, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 9th day of January, 1998.
The Issue Whether petitioner is entitled to attorney's fees and costs as a prevailing small business party in Department of Health and Rehabilitative Services v. S.G., No. 90-4967C (HRS; July 30, 1991)?
Findings Of Fact By final order entered in Case No. 90-4967C on July 30, 1991, HRS granted S.G.'s request for expunction, reversing its initial position after S.G. prevailed in the formal administrative hearing, as reflected in the favorable recommended order entered June 20, 1991, attached as an appendix and hereby incorporated by reference. HRS's initial failure to expunge S.G.'s name from the abuse registry lacked substantial justification. At or before the point at which HRS originally denied S.G.'s request for expunction, it is true, Finley Holmes told an HRS investigator that G.F. was not an appropriate candidate for an adult congregate living facility (ACLF). But HRS knew no harm befell G.F. and that S.G., who is a registered nurse, was fully capable of giving skilled care. No HRS investigator spoke to Dr. Campbell, even though S.G. made clear to HRS investigators the reasonable basis for her belief that Dr. Campbell had discharged G.F. to the Elite Guest House. Among other things, the doctor had written a contemporaneous note directing one of his employees to "call Home Health Care and get someone to come to Elite." At all pertinent times, HRS had this note, Melvin's Deposition, p. 52, as well as G.F.'s guardian's letter to Dr. Campbell expressing his intention to move G.F. back to the Elite Guest House. One HRS investigator, Penny Melvin, acknowledged that there might have been a misunderstanding between S.G. and Dr. Campbell. Indeed, nothing known to HRS at the time or discovered since supports any other view (unless Dr. Campbell told S.G. one thing and changed his mind later, which would not reflect unfavorably on S.G.) S.G. and her husband own all the stock of the Elite Guest House, Inc., by the entireties. Combined net assets held by the corporation, S.G. and her husband do not amount to $2,000,000. Neither S.G., her husband, the corporation nor all of them together employ 25 full-time employees. The parties agree that S.G. has incurred in excess of $15,000 in attorney's fees and costs because HRS originally refused to expunge her name from the abuse registry. As of September 26, 1991, fees aggregated $10,125.00 and costs amounted to $3,142.50, and work has been done since. HRS issued its notice of confirmed report, No. 90-020322, on March 26, 1990, and, thereafter (possibly on April 23, 1990) but before May 18, 1990, initially denied S.G.'s request for expunction. S.G. requested the formal hearing in No. 90-4967C on May 18, 1990, disputing allegations in report No. 90- 020322 that she had neglected an aged person, G. F. Also in May of 1990, HRS renewed the Elite Guest House, Inc.'s license as an adult congregate living facility but only on condition that S.G. prevail in the formal hearing she had requested in Case No. 90-4967C. After entry of the recommended order in Case No. 90-4967C, HRS announced its intention to renew the ACLF license unconditionally.
The Issue The issue in this proceeding is whether the Department of Children and Family Services should revoke the foster care license of Gladys Kelly.
Findings Of Fact At all times material to this proceeding, Respondent's home was licensed as a foster home, having been issued license No. 0901-08-3 by the Department. Respondent was also employed at a child care facility named Tadpoles and Toads Daycare Center. Her primary duties at the daycare center were kitchen duties, although she spent a relatively small amount of time with some of the children. In 1998 and again in 2001, Respondent signed an Agreement to Provide Substitute Care for Dependent Children in conjunction with her licensure as a foster care provider. In said agreements, Respondent agreed to abide by the Department's discipline policy which she received during Model Approach to Partnerships and Parenting (MAPP) training. According to Janet McMahan, a foster care licensing supervisor for the Department, MAPP training is required of foster care providers and addresses the issue of corporal punishment. Specifically, the training informs the foster care providers that corporal punishment is prohibited in a foster home. Respondent also signed a document in 1993, 1999, and 2001 entitled, "Foster Care: Policy Statement on Discipline." The 1999 and 2001 versions of this document specifically cite Rule 65C-13.010(1)(b)5., Florida Administrative Code, and state in pertinent part: "Prohibited disciplinary practices include . . . hitting a child with an object; spanking a child " Brian Snow was employed by the Department as a family services counselor and protective investigator for approximately two years. He left employment with the Department in April 2002. On October 22, 2001, he received a report about possible medical neglect and other mental injuries regarding children at Tadpoles and Toads Daycare Center where Respondent was employed. He went to the daycare center and interviewed children and staff, including Respondent. The allegations regarding medical neglect did not involve Respondent. However, he investigated allegations regarding Respondent "popping" children on the hands. On October 24, 2001, Mr. Snow went to Respondent's home to investigate allegations that Respondent spanked a child with a belt and hit children on the hands with a plastic folding fan. According to Mr. Snow, two children at Ms. Kelly's home told him that Ms. Kelly hits or "pops" them on the hand when they did something wrong, and one child told him that Ms. Kelly spanked her with a belt. However, as none of the children testified at the hearing, these statements are hearsay. Mr. Snow then again went to Tadpoles and Toads Daycare and again interviewed Ms. Kelly. Shirley Tamul, a childcare licensure counselor for Petitioner, accompanied Mr. Snow to the daycare center for the interview. During that visit, Ms. Kelly admitted to "popping" the foster children on the hand with a plastic fan when the children act up in church or at a store. Mr. Snow and Ms. Tamul discussed the Department's policy prohibiting corporal punishment by foster care parents with Ms. Kelly during the October 24, 2001, visit to the daycare center. During her testimony at the hearing, Ms. Kelly again admitted to "popping" the children on the hand to "keep them in line" when they act up. She adamantly denied using a belt to spank any children in her care. There is insufficient evidence to prove that Ms. Kelly hit any child with a belt, notwithstanding the hearsay statement attributed to one of Ms. Kelly's foster children. However, Ms. Kelly admits to "popping" the children on their hands because of their behavior. The children's hearsay statements to Mr. Snow regarding Ms. Kelly's "popping" them on the hand supplement Ms. Kelly's admission to that conduct. Mr. Snow did not observe any physical injury on the children he interviewed at either the daycare center or Respondent's home.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Department of Children and Family Services enter a final order revoking the foster home license held by Respondent. DONE AND ENTERED this 31st day of May, 2002, in Tallahassee, Leon County, Florida. ______ BARBARA J. STAROS 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 31st day of May, 2002.
The Issue The issue in this case is whether imposition of a fine in the amount of $100 on Respondent, Kimberly Wright, d/b/a Little Feet Academy, by Petitioner, Department of Children and Families (the “Department” or “DCF”), was appropriate.
Findings Of Fact (The following Findings of Fact were established through evidence presented at final hearing.) The Department is responsible for licensing and monitoring, among other entities and facilities, “large family child care homes.” Little Feet Academy (“Little Feet”) is such a facility. Little Feet is operated by Kimberly Wright and is located, pursuant to its license, at 2135 Rothbury Drive, Jacksonville, Florida (the “Rothbury Site”). On May 11, 2016, DCF received a complaint from the parent of a child under Ms. Wright’s care at Little Feet. The complaint alleged that the Rothbury Site was extremely hot, causing the child to suffer. DCF sent a family service counselor, Mary Gil, to investigate the complaint allegation. Ms. Gil arrived at the home with the intention of using a thermometer to measure the temperature inside the home. By rule, large family childcare homes must keep the temperature between 65 degrees and 82 degrees Fahrenheit. When she walked into the front door, she found water on the floor in the living room and bedroom. A pipe had apparently burst, causing the flooding. (The temperature, incidentally, was 81 degrees Fahrenheit, within the prescribed range.) Ms. Gil advised Ms. Wright that the water on the floor constituted a hazard which put the children at risk. She told Ms. Wright that the children would have to leave the home until the problem was rectified. Ms. Wright began calling the parents of the children, explaining that the children could not remain at the facility until it had been repaired. Initially, Ms. Wright told the parents they could take the children to 8321 Santman Court (the “Santman Court Site”), a private residence owned by Ms. Wright. Her intent was to have her staff watch the children at that site until the leak was repaired. Ms. Gil heard her conversing with some of the parents and advised Ms. Wright that moving the children to a different site would not be allowed under her license. Ms. Wright then attempted to contact all the parents to tell them that they could not take their children to the Santman Court Site after all. Ms. Wright told the four employees working for her that they could not return to work until the plumbing repairs had been completed. She told them that the plan to use the Santman Court Site would violate licensure rules, so that was not an option. All of the employees, including Ms. Wise (who was already working another job), left the Rothbury Site at that time. Parents of the children staying at Little Feet were not given an option for temporary childcare by Ms. Wright. She simply told them they could return when Little Feet re-opened. On the next day, May 12, 2016, a parent of one of the children called DCF with another complaint. The parent said that apparently Ms. Wright was using the Santman Court Site to care for the Little Feet children. Again DCF sent Ms. Gil to investigate. Upon arrival at the Santman Court Site, Ms. Gil knocked on the door, but no one answered. She could hear the sound of children inside, but no one would come to the door. She knocked for a while, then called her supervisor, Ms. Rice, for advice and assistance. Ms. Rice told her to continue trying to get into the home while she, Ms. Rice, drove to the site. At some point, Ms. Rice contacted the Jacksonville Police Department, asking for assistance at the Santman Court Site. She and Officer Bryant from the Jacksonville Sheriff’s Office arrived at the site around the same time. About the time Ms. Rice arrived at Santman Court, someone inside the home finally answered the door. The person who answered was Sylvia Wise, an employee of Little Feet. Ms. Wise allowed Ms. Gil, Ms. Rice and Officer Bryant into the home. Inside, they found what appeared to be an abandoned home, i.e., no furniture for normal living. There were some items used for childcare inside the home, such as small tables and chairs, pack-n-play cribs, and other similar items. Ms. Gil thought she recognized some of the items being from Little Feet. Ms. Wright would later acknowledge that the items were from Little Feet, but that was because she had planned to use that home as an alternative to the Rothbury Site (until she found out she could not do so). Ms. Wise was watching eight children from six different families at the Santman Court Site. When questioned, Ms. Wise denied working for Ms. Wright or Little Feet. She said she had agreed to babysit the children at the Santman Court Site. She said she had rented the home from Ms. Wright as a place for her aunt to live when she moved to Jacksonville. Ms. Wright confirmed that Ms. Wise had rented the home, but the agreement to rent was made well before the leak occurred at the Rothbury Site. One of the DCF family counselors contacted Ms. Wright and advised her to come to the Santman Court Site as quickly as possible. Ms. Wright said there were plumbers working on the leak, but she would get there as soon as she could. She arrived a short time later. DCF informed Ms. Wise that she was in violation of rules concerning childcare and would have to call the parents to pick up their children. According to Ms. Rice, it is illegal to care for children from two or more families on a regular basis and receive compensation. Ms. Wright was told the same thing when she arrived. It was upon her arrival at the Santman Court Site that Ms. Wright first found out that some of the Little Feet children were there. DCF waited at the Santman Court Site until there were only two children remaining. Inasmuch as the two were siblings, Ms. Wise was allowed to babysit them without violating the aforementioned rules. While at the Santman Court Site, Ms. Rice attempted to convince the police officer to write up a report on the violation. However, because it was a civil, administrative matter, he declined to do so. Ms. Wright believed Ms. Rice’s behavior showed that she was overly aggressive and “had it in for her.” Ultimately, no report was written by Officer Bryant. Ms. Gil said Ms. Wise was receiving compensation from the parents for the care provided to children at the Santman Court Site. There is no competent evidence to support that allegation as Ms. Wise did not appear as a witness at final hearing. Ms. Wright credibly testified that she, personally, did not receive any compensation for care provided on that day, May 12, 2016. Ms. Wright produced 13 sworn statements from parents of the Little Feet children. (Counsel for DCF acknowledged the statements were hearsay, but did not object to their introduction into evidence at the final hearing.) The gist of the statements was that Ms. Wright advised the parents of the temporary closure of Little Feet and that she could not watch their children until the leak issue was resolved. The facts in those statements are corroborated by Ms. Wright’s testimony. There is no persuasive evidence that Ms. Wright attempted to circumvent licensure rules by having children stay at the Santman Court Site while the Rothbury Site was being repaired. In fact, the uncontroverted testimony was that Ms. Wright attempted to tell the children’s parents that the Santman Court Site could not be used. The Department seeks to impose a fine of $100 against Little Feet, representing one day of illegal childcare at the Santman Court Site by Ms. Wise. The fine was assessed against Ms. Wright and Little Feet because Ms. Wright owns the Santman Court Site. However, Ms. Wise apparently had a leasehold interest in the property on the day in question. Why she, rather than Ms. Wright, was not sanctioned is not clear.1/ It is clear that the possibly illegal childcare lasted a single day, i.e., it was not done on a “regular” basis. However, it is reasonable that DCF believed the illegal childcare could have continued absent their intervention.
Recommendation Upon consideration of the evidence and oral testimony presented at final hearing, and based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Department of Children and Families, finding that there is no basis for imposing a monetary sanction of $100 against Respondent, Kimberly Wright, d/b/a Little Feet Academy. DONE AND ENTERED this 10th day of October, 2016 in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of October, 2016.
The Issue Whether the Respondents' foster care license should be revoked.
Findings Of Fact At all times material to this matter, the Respondents were licensed as a foster home. During the course of such licensure, a minor child, M.A.G., was placed within Respondents' home. It was Respondent, Bertha Sosa's intention to adopt M.A.G. and her minor brother who was also placed with Respondents. Respondents were approved for licensure as foster parents through a private company. Such company was a third party screening agent used by the Department to process foster home applicants. For reasons unknown, such company did not obtain Respondents' signature to or agreement for certain provisions which are required for licensure. For example, all foster home licensees are required to execute service agreements. No such agreement has been located for Respondents. Pertinent to the service agreements are requirements regarding discipline which may be utilized by foster care licensees. In this instance, the discipline policy agreement prohibits: hitting a child with any object; slapping, smacking, whipping, washing mouth out with soap, or any other form of physical discipline; and humiliating or degrading punishment. While the Respondents do not acknowledge that they executed such agreements, it is undisputed that the failure to do so would result in the denial of initial licensure. The only reason Respondents sought initial licensure was to be able to adopt children. They were not then, and were not at the time of the hearing, interested in foster care. The foster care program was the vehicle they chose to be able to adopt. M.A.G. has a history of physical and sexual abuse. It is not uncommon for children with such history to exhibit inappropriate behaviors. Such behavior may include, as described by Mrs. Sosa, "humping." Also, M.A.G. had difficulty with telling lies. Mrs. Sosa admitted that when M.A.G. exhibited inappropriate sexual behavior, she would force the child into a cold shower. Mrs. Sosa admitted that when M.A.G. lied, she would wash her mouth with soap. On or about March 11, 1996, an investigation of abuse allegations began regarding M.A.G. and the Respondent, Juan Sosa. M.A.G. alleged that while Mrs. Sosa was out of the home, Mr. Sosa hit her several times with a broomstick. According to M.A.G., such conduct was the result of M.A.G.'s disobedience and disruptive behavior which culminated in discipline. Bruises consistent with a blunt instrument were observed on M.A.G.'s legs and arm. M.A.G. bragged that she could withstand, or feel no, pain. The bruises were photographed within two days of the alleged incident. Mr. Sosa denied inflicting the injuries sustained by M.A.G.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Department of Children and Families enter a final order affirming the revocation of Respondents' foster care license. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 28th day of February, 1997. JOYOUS D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 28th day of February, 1997. COPIES FURNISHED: Colleen Farnsworth Assistant District Legal Counsel Department of Children and Families 401 Northwest 2nd Avenue, Suite N-1014 Miami, Florida 33128 Lee Marks, Esquire 757 41st Street Miami Beach, Florida 33140 Gregory D. Venz Agency Clerk Department of Children and Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard A. Coran General Counsel Department of Children and Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue is whether Respondent should have granted Petitioner a license to operate a family day care home.
Findings Of Fact In January 1992, Petitioner operated a foster home for dependent children. The foster home was licensed by Respondent's predecessor, the Department of Health and Rehabilitative Services (hereinafter referred to as Respondent). In January 1992, Respondent received a report that Petitioner and her husband, Jim Shell, had meted out bizarre and excessive punishments to the children in their foster home. The report also alleged that Petitioner tied the younger foster children into their cribs at night. This report resulted in an investigation by Respondent. In the year prior to the initiation of the investigation, the following children stayed in Petitioner's foster home: H.S. (d.o.b. 4-6-89); S.S. (d.o.b. 10-1-86); T.H. (d.o.b. 5-3-89); S.A.C. (d.o.b. 9-18-88); B.Y. (d.o.b. 11-2-80) and G.Y. (d.o.b. 12-2-82. H.S. and S.S. were sisters. S.A.C., B.Y. and G.Y. were siblings. T.H. was mentally retarded. Petitioner gave B.Y. more household duties in the home than would be expected as chores for a child of her age. These responsibilities included housecleaning, laundry and child care. Additionally, Petitioner often kept B.Y. home from school to do housework. To excuse B.Y.'s absence, Petitioner would write notes to the school, falsely stating that B.Y. had a doctor's note and stayed home sick. B.Y. and G.Y. were forced to do push-ups as punishment for minor infractions. Petitioner's testimony that the children were required to do these push-ups as a joke or game is not persuasive. Mr. Shell spanked G.Y. for mis-reciting spelling words. This occurred once a week. On one occasion, B.Y. observed Mr. Shell hit G.Y. on the buttocks with a two by four. On another occasion, Mr. Shell jerked S.A.C. off a trampoline in the backyard, spanked her and threw her onto the ground. As a result of this rough treatment, S.A.C.'s head struck a tree. Petitioner regularly tied H.S.; S.S.; T.H.; and S.A.C. into their cribs at night because they would get up after being put down for the night. When B.Y. untied the children, Petitioner told her that when the children are tied up, they are supposed to remain that way. There was great strife in the Shell household. Petitioner and her husband often argued. For example, on B.Y's first night in the home, Petitioner hit Mr. Shell on the head with a frying pan. It is contrary to Department policy to physically restrain or punish children in foster care. Foster parents learn this in the training they receive before receiving their foster care licenses. Notwithstanding Petitioner's claim that she is separated from her husband, they continue to live under one roof. The house they live in is on the same property where Petitioner intends to operate a family day care home. The foregoing facts, among others, were set forth in the Respondent's final investigative report, Florida Protective Services System Abuse Report Number 92-007405. On April 22, 1992, the Respondent sent a certified letter to Petitioner informing her that the investigative report had been classified as proposed confirmed, that she had the right to request that Respondent amend or expunge the report, and that any such request would be considered only if received by Respondent within sixty days of her receipt of the April 22, 1992 letter. The letter contained the following language: If you do nothing, your right to appeal the classification of the report will be completely barred. By not choosing [to ask for amendment or expungement], this report will automatically be classified as CONFIRMED. This means that you do not contest the department's right to maintain the report findings as stated, including your identification as a perpetrator. A perpetrator in a confirmed report of abuse, neglect or exploitation may be disqualified from working in certain positions of trust, including working with children, disabled adults or aged persons. (Emphasis supplied). Petitioner signed the acknowledgment of receipt for the April 22, 1992, letter on April 27, 1992. She never requested amendment or expungement of the investigative report. Because neither amendment nor expungement of the report was sought, the confirmed classification became final agency action sixty days after Petitioner's receipt of the letter on April 27, 1992. In other words, the agency action became final on June 26, 1992. No appeal was taken from this action.1 In 1994, the Agency for Health Care Administration granted Petitioner an exemption from disqualification from employment in positions covered by Section 400.512, Florida Statutes. That section discusses the requirement for employment screening, using level 1 standards, for home health agency personnel, persons referred for employment by nurse registries, and persons employed by sitter, companion, or homemaker services registered under Section 400.509, Florida Statutes. The record does not indicate whether the Agency for Health Care Administration conducted an evidentiary hearing before making its decision to grant Petitioner the exemption.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Department of Children and Family Services enter a Final Order denying the application of Petitioner Patricia Shell to operate a registered family day care home. DONE AND ENTERED this 2nd day of November, 1998, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of November, 1998.
