The Issue Whether Petitioner is entitled to a Foster Home License.
Findings Of Fact Petitioner, Marion Hanes, had for a number of years been granted custody of two very troubled female foster children by a Pennsylvania court. Ms. Hanes grew to care a great deal for these two foster children and while they were in her custody helped the two children feel loved and cared for. When Ms. Hanes and her husband moved to Florida, she asked the court to grant her permission to take the girls to Florida to live with her and her husband. Because of Ms. Hanes' good care of these children and the desires of Ms. Hanes, the children, the Pennsylvania social service agency and the Pennsylvania court, in order to maintain a consistent environment for these children, the court granted Ms. Hanes permission for the girls to live with her in Florida. After arriving in Florida, Petitioner discovered that the girls' Pennsylvania Medicaid cards would not be accepted by Florida Medicaid providers. Therefore, in order to obtain school and medical services for her foster children in Florida, Ms. Hanes had to obtain Florida Medicaid cards for her charges. In pursuit of the Medicaid cards, Ms. Hanes was informed that she would have to have a foster home license for the home in which the girls would be living. Ms. Hanes made application to the Department of Health and Rehabilitative Services for a Foster Home License for her residential home located at 1015 Edison Drive, Pensacola, Florida. The home is located in a middle-income residential area and is an ordinary brick house resembling the other homes in the neighborhood. The front bedroom windows in the house measure 15 inches in height and 34 inches in width. The bottom of the windows are approximately 46 inches off the ground. The children in Ms. Hanes' care would occupy one of the bedrooms with the 15 by 34 inch windows. On June 24, 1991, Robert Herron, Fire Prevention Specialist and licensed Fire Inspector inspected the Petitioner's home located at 1015 Edison Drive. The purpose of the inspection was to determine whether the residential home met fire safety requirements applicable to houses which will serve as foster homes. The Fire Inspector testified that the Department's long-standing, statewide policy was to require that foster homes meet Chapter 22 of the NFPA 101 Life Safety Code. The NFPA 101 Life Safety Code, Chapter 22-2.21(b), requires that windows in a residential home have a clear opening of not less than twenty-four (24) inches in height and twenty (20) inches in width, with the bottom of the opening not less than forty-four (44) inches above the floor. Mr. Herron further testified that exceptions for good cause had been granted to the window size requirement, but only when a window's dimension varied by one or two inches. The Hanes' windows were denied an exception. The Life Safety requirement has not been adopted by HRS as a rule. Nor has the Life Safety requirement been adopted as a rule applicable to residential or foster homes by the State Fire Marshals office. Additionally, the evidence did not show that the Life Safety requirement has been adopted by any local building authority which would have code authority over the Hanes' home. The agency did not put on any evidence which would demonstrate the reasoning behind this unadopted rule requirement. Mr. Herron's inspection of the Hanes's home revealed that the bedroom windows in the Hanes' home did not meet the NFPA 101 Life Safety Code standards. Specifically, the fifteen (15) inch height of the windows was short by nine inches from the NFPA Life Safety Code's standard. Importantly, the evidence did not show that the Hanes' home was unsafe. In fact, the better evidence in this case demonstrates that the Hanes' home presents a safe and secure environment for the Hanes and the foster children and the windows in their present condition appear to be big enough to allow passage in an emergency. As of the date of the hearing, the Hanes had not increased the size of the bedroom windows to twenty-four (24) inches. Mr. Hanes stated the reason these windows had not been enlarged following Mr. Herron's inspection was because other neighborhood houses were similar in style to the Hanes' house and the esthetic changes were undesirable to the Hanes. More importantly, the evidence demonstrated that removing these foster children from Ms. Hanes' care would not be in their best interest and could cause more harm than good. Put simply, the needs of these children for a consistent and loving environment outweigh the need for strict compliance with an unadopted safety standard given the fact that the home is safe. Therefore, Ms. Hanes is entitled to a foster home license for her home located at 1015 Edison Drive, Pensacola, Florida.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is accordingly, RECOMMENDED: that the Petitioner's application for licensure as foster parents be granted. ENTERED this 9th day of August, 1993, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of August, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-5134 The facts contained in paragraphs 1, 5 and 6 of Respondent's Proposed Findings of Fact are adopted in substance insofar as material. The facts contained in paragraphs 2, 3, 4 and 7 of Respondent's Proposed Findings of Fact are subordinate. 4. The facts contained in Petitioner's letter dated April 4, 1993, are adopted in substance, insofar as material. The characterization of Respondent's Proposed Recommended Order and testimony at the hearing are not ruled upon since no factual matters are involved. COPIES FURNISHED: Marion Hanes 1015 Edison Drive Pensacola, FL 32505 Christopher R. Hunt Assistant District Legal Counsel Department of Health and Rehabilitative Services Post Office Box 8420 Pensacola, FL 32505 Robert L. Powell, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, FL 32399-0700 John Slye General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700
Findings Of Fact Respondents have cared for foster children for some twenty years. In November or December of 1975, they began with Christian Youth Care, Inc. (CYC), a foster home in Zephyrhills founded under the auspices of the First Baptist Church of Zephyrhills. Since then small groups of adolescent girls have lived with respondents and their teenage daughter, Dawn. In all, some 80 children have lived at CYC since respondents have had charge of the home. In July of 1977, petitioner placed June Holmes, who is deaf and dumb, with respondents. After June had been with the Houghs for two weeks or so, Lillian Parsons, a social worker in petitioner's employ, told Mrs. Hough that June should be wearing a hearing aid. June did not want to wear a hearing aid. She was also disappointed that Mrs. Hough would not take her to Daytona Beach; she became very upset, wielded a straightened safety pen and started knocking things off bureaus. When Mr. Hough served as a medical technician in the armed forces, unruly patients were sometimes wrapped in blankets. Perhaps remembering this experience, he enlisted Mrs. Hough in wrestling June to the floor, wrapping her in a blanket and securing the blanket with three belts. In the process, Mr. Hough said to June, "See how mad you can get." These events caused concern among the other children living in the home, who gathered to watch and, at respondents' suggestion, to say prayers. Mrs. Hough told June that she loved her. After June had lain bound in this fashion for 45 minutes, respondents released her. The following day Mrs. Hough called Mrs. Parsons to report the incident and to ask that June be placed in another home. Mrs. Parsons expressed no disapproval of respondents' method of restraining June nor did she tell them not to do it again. June remained with respondents until she left for boarding school in St. Augustine. When June returned to the Houghs from school on Easter vacation 1978, she wanted a new pair of shoes that cost $24.95. Respondents bought her a different pair instead. Easter morning June wanted to wear her old shoes, not her new shoes. This caused an argument. Mrs. Hough stayed home with June while Mr. Hough took the others to church. When Mrs. Hough began packing June's clothes into a suitcase, June was "worried that [respondents] would move [her] out." Deposition of June Holmes, p. 5. She walked outside and sat under a tree near the road. Mrs. Hough telephoned her husband and summoned him home from church. With the help of a deputy sheriff brandishing handcuffs, respondents coaxed June into their van and drove her up the driveway to their home. At first she refused to leave the van, so respondents went inside without her. When June eventually went inside, there was another confrontation. Mr. Hough wrestled June to the floor and sent Mrs. Hough for a blanket. After respondents wrapped June in the blanket and secured it with belts, Mr. Hough set off to retrieve the children he had left at church. After Mr. Hough returned with the other children, respondents unwrapped June and there was an Easter egg hunt. The next day Mrs. Hough called petitioner's offices in New Port Richey, then drove June to New Port Richey and left her there, because she wanted no more to do with her. When Mrs. Parsons learned that respondents had wrapped June in a blanket a second time, she asked to be relieved of responsibility for June. Eventually David J. Schultz, at the time a child welfare social worker in petitioner's employ, assumed responsibility for June; and June was again placed with respondents. Mr. and Mrs. Hough frequently communicated with guidance counselors and teachers at the schools children in their care attended. They made six visits to talk about Evelyn Ciacelli's progress with Ricky Rowell, guidance counselor at Woodland Elementary School in Zephryhills, and spoke to him on the telephone about Evelyn on several other occasions. Disappointed in Evelyn's progress with her homework one night, Mr. Hough picked her up and shook her. On another occasion, Evelyn and her roommate were wrestling in their room after they had been sent to bed. Mr. Hough heard them from the kitchen, walked into their bedroom with a spatula in his hand, and gave Evelyn, who was wearing a bathrobe over her nightgown, a swat on the rear with the spatula. On November 20, 1978, David J. Schultz left Petitioner's employ. He subsequently went to work for a corporation controlled by respondents and began living in their home. He lived there on December 13, 1978. On December 13, 1978, Bonnie Blair McKenzie, then employed by petitioner as a community youth leader, picked up Cindy Spickelmier at a shelter home in Dade City and drove her to respondents' home. Cindy, a 14 year old, was at the shelter home after having run away from another foster home, the Newmans'. She had lived with respondents previously and David Schultz also knew her. Shortly after Cindy's arrival, David Schultz was talking to her in the Houghs' living room, where she was sitting on a couch, crying. Also present were Mr. Hough, Ms. McKenzie, Nancy Newman, the foster mother who had previously had custody of Cindy, and Ed Springer, then the social worker in petitioner's employ responsible for Cindy's placement. Angry because Cindy was ignoring him, David Schultz grabbed the hair of her head, jerked her up into a standing position, had her bend over and lean against a desk for support, and struck her buttocks with a wooden paddle an inch thick. He administered the first blow with such force that Ms. Newman was frightened and Ms. McKenzie was "horrified and devastated." (T.52). Cindy fell to her knees, hysterical. Less forcefully, David Schultz struck her buttocks a second time. At the hearing Mr. Hough testified that: after Dave gave her the swats she sat back down and she was a new child. We were able to communicate with her and we thought we were really making good progress and being able to work with the child. That was the purpose of the new program and of course we were trying to set up parameters that would be beneficial to the child. (T.233). Notwithstanding this perceived improvement in Cindy's deportment, Ed Springer gave Cindy another spanking 30 or 45 minutes after David Schultz had finished. In the presence of Mr. and Mrs. Hough, and Mr. Schultz, Ed Springer struck Cindy five times on the buttocks with the same wooden paddle David Schultz had used, as punishment for running away from the Newmans' house. Later, on the evening of December 13, 1978, Cindy ran away from the Houghs'. She ended up at her mother's house where she spent the night. The next day her mother took her to the Pasco County Sheriff's Department. There Fay Wilbur an investigator for the Sheriff's Department, took photographs of Cindy's badly bruised buttocks. Petitioner's exhibits 3, 4 and 5. On the following day, December 15, 1978, Dr. Lena Ayala, a pediatrician, examined Cindy. She found large "[v]ery tender, painful" (T.55) hematomas covering the whole area of Cindy's buttocks. If she had seen a child in the custody of its natural parents in that condition, Dr. Ayala testified, she would have reported the matter to the child abuse registry. Petitioner discharged Ed Springer because of the beating he had administered to Cindy Spickelmier. Petitioner publishes a manual with a chapter entitled "Foster Family Group Homes for Dependent youth," Petitioner's exhibit No. 8. In part, the manual provides: 8.4.4 Unacceptable disciplinary approaches include: a. Corporal punishment--slapping, kicking, hitting, etc. * * * Humiliation, ridicule, sarcasm, shaming in front of the group or alone. Deprivation of essential needs such as food, sleep, or parental visits. Petitioner's exhibit No. 8, p.9. Although petitioner sometimes furnished foster group home licensees copies of its manuals, petitioner's files do not indicate that either Mr. or Mrs. Hough ever received a copy. Respondents wore unaware of the manual's contents on December 13, 1978; and David Schultz was also unaware of any policy against corporal punishment of foster group home children. Lorraine Cash, a foster mother in Pasco County, never spanked any foster child in her care over the age of eleven years. On the other hand, Henry Arnett, another foster parent in Pasco County, used corporal punishment in disciplining teen aged foster boys. He and his wife, Doris, were named foster parents of the year in 1978. On December 14, 1978, Joanne Wall telephoned respondents on behalf of petitioner and told Mr. Hough that David Schultz should be barred from their premises. When Mr. Hough protested that David Schultz lived on the premises, Ms. Wall asked Mr. Hough to keep David Schultz from working with the girls, which Mr. Hough agreed to do. On December 18, 1978, respondents submitted an application to petitioner for a child care center license, an application on which they had begun work considerably before December 13, 1978. Discouraged by the pace at which this application was being considered and by what respondents perceived as unfairness on the part of some of petitioner's personnel, Mr. Hough on February 15, 1979, told William Laing, a manager for petitioner, that he wanted all the foster children but two removed by five o'clock the following day, a Friday. Even though the agreement between petitioner and respondents called for two weeks' notice by the foster parents, petitioner's exhibit No. 6, Mr. Hough was unwilling to wait so long. Petitioner arranged to pick up all the foster children in respondents' care on the following day. Some of the children had not been told they would be leaving the Houghs' home. Respondents own improved real estate from which they derive rental income. In addition, CYC, funded by the First Baptist Church of Zephyrhills, paid respondents a salary. Occasionally, Mr. Hough worked outside the home. Pasco County contributed to the costs of caring for foster children. Respondents did not need moneys petitioner paid them on behalf of the children for their own personal purposes.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That, on the next anniversary of the date of respondents' original foster group home license, petitioner discontinue respondents' license for a period of one year. DONE and ENTERED this 19th day of June, 1979, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Barbara McPherson, Esquire Post Office Box 5046 Clearwater, Florida 33518 Robert L. Williams, Esquire Post Office Box 443 Dade City, Florida 33525
The Issue The issue is this case is whether revocation of Respondent's Foster Care license privilege for his past and present conduct, determined by the Department of Children and Family Services (hereinafter Agency) to be inappropriate, was proper under Section 409.175, Florida Statutes.
Findings Of Fact Under Section 409.175, Florida Statutes, the Department of Children and Family Services is the State Agency responsible for evaluating, qualifying, licensing, and regulating family foster care homes. On or about November 5, 1999, the Agency, after Mr. Thibodeau's successful completion of the Agency's evaluation and qualifying procedures, determined Mr. Thibodeau to be of good moral character. At all times material to the application process, Mr. Thibodeau answered completely and truthfully each question contained on each standard application form and other documents presented to him by the Agency during the foster care home application process. Based upon its determination, the Agency granted Provisional Certificate of License, No. 1999-110-002, for Substitute Family Home care privilege to Mr. Thibodeau. Thereafter, the Agency placed three minor children in Mr. Thibodeau's home: two teenaged brothers, David M. and Daniel M., and seven-year-old Steve. After an unspecified period of time together, bonding began to develop between the brothers, Daniel and David, and Mr. Thibodeau. As a result of a mutual agreement, Mr. Thibodeau submitted an adoption application to the Agency to become the adoptive parent of the brothers David M. and Daniel M. At all times pertinent hereto, Mr. Thibodeau answered completely and truthfully each question contained in the standard application forms and other documents presented to him by the Agency during the adoption application process. Ms. Georgia Alezras, trainer for the Model Approach to Partnership in Parenting (MAPP) classes and Mr. Kelvin Birdsell, family therapist and continuity specialist, made a home-study visit to the Thibodeau residence at some time between early July and August 15, 2000. Mr. Birdsell testified that he confined his conversations to the brothers, David M. and Daniel M. during the visit. Mr. Birdsell further testified that his conversations with the brothers were separate and away from the presence and hearing of Ms. Alezras and Mr. Thibodeau, who conversed privately. On July 26, 2000, after Mr. Thibodeau submitted his adoption application, and after the home study visit by Ms. Alezras, the Agency received a confidential telephonic abuse report, Petitioner's exhibit number one.1 The abuse report contains an interpolation of the private conversation between Ms. Alezras and Mr. Thibodeau during the earlier home-study visit. Ms. Carolyn Olsen, Family Counselor Supervisor, testified that Ms. Georgia Alezras reported her private conversation with Mr. Thibodeau to her Agency supervisors. The Agency's interpolation of the Alezras-Thibodeau conversation formed the factual allegations contained in the Agency's August 18, 2000, revocation letter. Sergeant Hagerty, Pasco County Sheriff's Office, testified that she and Sergeant O'Conner investigated the abuse allegations, consisting solely of the Agency's interpolation of Ms. Alezras' earlier and prior conversation with Mr. Thibodeau, by checking with authorities in Washington and checking with the National Criminal Information Center (NCIC) with negative results. The removal of the children from Mr. Thibodeau's home was based upon a joint decision to be safe and take a preventative approach in this matter. Petitioner's exhibit number two, a composite of eight letters, contained a "Closing of Foster Home For Children" report form, with a "foster home closing date" of August 18, 2000, and the caseworker and supervisor's signature on the date of August 22, 2000. The report, under "reason for closing" heading, contains the following comments: [H]is license was revoked because he recently divulged information about his past, that, had we known these facts prior to licensing, would have disqualified him to act as a foster parent---namely, he stated that some years ago he left the state of Washington with an unrelated male child without parental or state permission and lived with him for years under false identification. Ms. Georgia Alezras did not testify. Mr. Thibodeau's testimony is the only evidence of the private conversation with Ms. Alezras. Mr. Thibodeau's recollection of his responses to Ms. Alezras' questions was: [I]n 1975 he moved to the State of Washington; in 1976-77 he met Daniel L.; in 1976-77 he left the State of Washington and moved with Daniel to Pennsylvania where Daniel enrolled in school using his Washington school records; Daniel's mother visited them in Pennsylvania and maintained contact by telephone; Daniel, at age nineteen returned to Washington. He used a friend's birth certificate to secure his Pennsylvania driver's license. His video business2 considerations were subsequently dismissed and he advised the Agency of his decision by letter to his caseworker. Ms. Carolyn Olsen, Agency Representative, testified that one member of every MAPP team always asks a general, catchall question of every [foster care parent] applicant: "Is there anything else we need to know [about you], please tell us, [because] we will probably find out?" Ms. Olsen's candor and purpose comes into question on this point. She was not present during the Alezras-Thibodeau private conversation. Ms. Olsen does not know the identity of the team member who would have asked her catchall question nor does she know of a rule, guideline, or checklist requiring that specific question to be asked of every foster care license applicant, and there was no corroboration of her testimony. The Agency presented no evidence in support of its allegation that during the application process, its failure to inquire and Mr. Thibodeau's failure to disclose activities 20 years earlier in his life resulted from negligence or from the malicious intent of Mr. Thibodeau, and materially affect the health and safety of the minor children in his foster care. The Agency has failed to establish that Mr. Thibodeau left Washington with an unrelated minor child without parental consent and obtained false identification for the child. While it is true that Mr. Thibodeau "left Washington with an unrelated minor child," the Agency produced no evidence that his leaving was "without [minor child's] parental consent." Agency's investigators were unable to make contact with either the child or his mother. No investigation was made of the State of Washington's Motor Vehicle Department. No contact was made with the Pennsylvania authorities. Assuming argunendo, the Agency intended upon establishing this element by "an admission by Mr. Thibodeau"; they presented no evidence Mr. Thibodeau, in fact, uttered words to the effect of or acknowledged the comment "without parental consent." The undisputed evidence is Mr. Thibodeau's testimony that the minor child's mother not only approved of the child leaving Washington with him, but she also visited them in Pennsylvania and had telephone conversations with her child during his stay there. On this issue the Agency failed to carry its burden by clear and convincing evidence. Mr. Thibodeau admitted his use of another's birth certificate to secure a Pennsylvania driver's license more than 20 years ago. Since that time, Mr. Thibodeau's conduct, foster care parenting skills, helping problem young boys, and good moral conduct has been, as testified by the several witnesses, exemplary.
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 reinstating to Stanley Thibodeau his foster care home license privilege. DONE AND ENTERED 21st day of March, 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 21st day of March, 2001.
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 The issue presented herein is whether or not Petitioner is eligible to be assigned foster children.
Findings Of Fact Based on the Hearing Officer's observation of the witnesses and their demeanor while testifying, documentary evidence received, and the entire record complied herein, I make the following relevant factual findings: Petitioner, Johnnie Mae Smith, was licensed as a foster parent on July 1, 1987, for one (1) female foster child (Certificate No. 787-48-1). Thereafter, Petitioner requested that foster children be placed in her home and she was denied. Specifically, by letter dated December 4, 1987, Gloria P. Simmons, District Operations Manager, Children Youth and Family (CYF) Services, advised Petitioner that "we are not placing any foster children in your home for the following reasons: Insufficient income to provide adequate cash flow to support additional expenses incurred. Lack of integrity in reporting income while receiving AFDC 1/ payments. "Your provocative, overbearing, abrasive, and implusive (sic) behavior." Petitioner was advised of her right to appeal Respondent's denial of placement of foster children in her home and she timely appealed that denial. Gene Majure, (Majure hereafter) Senior CYF Counselor, has been employed by Respondent in excess of 16 years. Majure is presently assigned to making license recommendations for foster home applicants in Dade County. Majure was assigned Petitioner's foster home applicants license application for review. During October 1986, Petitioner received pre-service training as a foster parent at which time she made application for licensure as a foster parent. Petitioner's initial foster home study was conducted by Gene Majure, who rejected it primarily on the basis of "insufficient income." Petitioner protested her initial foster home application rejection and instead of being processed through normal appeal channels, she was informed by Leonard Helfand, District Legal Counsel, that she would be reinvited to pre- service training and she could reapply. Petitioner reattended the second part of pre-service training on May 21, 1987, and she officially reapplied. Lois Rossman, (hereafter Rossman) Senior Youth and Family Counselor, and Peggy Ann Siegal, Children Youth and Family Supervisor, visited Petitioner in her home on June 12, 1987. Their interview of Petitioner revealed that Petitioner shared her three-bedroom home in Opa Locka with her two daughters, Chantrell (15) and Latrise (14). Petitioner is separated from her husband for approximately one year and his specific whereabouts is unknown. Majure again visited Petitioner during January 1987. At that time, Majure inquired as to Petitioner's financial income and Petitioner responded verbally, and in writing, on October 9, 1986, and again on June 12, 1987, that she has $400 per month earned income which income is derived from a laundry service which she has operated for the past 5 years. On the other hand, Petitioner signed a monthly income statement with AFDC indicating that she has no earned income. To the extent that Petitioner has earned income, she incorrectly reported her income to AFDC since October 1986, which may result in either an overpayment or fraudulent involvement in her income reporting. (Respondent's exhibit 3). Rossman was also assigned Petitioner's case to determine her eligibility to be assigned foster children. Rossman was present on the June 12, 1987, visit to Petitioner's residence at which time Petitioner again related that she had earned income of approximately $400 per month which income statement was contrasted with the available records that Respondent's employees had obtained from the AFDC office wherein Petitioner indicated that she had no earned income. To the extent that Petitioner does not have earned income, she has indicated a total income of $264 per month and stated expenses of approximately $400-$605 per month which creates cause for concern as to her ability to maintain a stable and secure family environment for foster children. Rossman also became involved in circumstances wherein Petitioner repeatedly called the CYF counselor's office demanding to speak with supervisory employees wherein she demanded that she be assigned foster children since she was licensed. When secretarial employees advised Petitioner that her message would be relayed and that as soon as a supervisor or other placement official became available, they would return her call, Petitioner would again call using an alias to attempt to get through. This problem persisted for several months following the time that Petitioner's foster home application was approved in July 1987. Respondent's secretarial employees who answer the phone and greet clients in person have been trained to deal with irate and abusive clients, however Petitioner's unrelentless calling became so problematic that employees felt harassed and one employee broke down and starting crying based on Petitioner's persistence about seeing or talking to certain supervisory employees at certain times. Prior to the time that Petitioner's foster home license application was approved, she was much more pleasant in her conversations with employees in the CYF office. (Testimony of Peggy Siegal and Ellie Roman). Petitioner also keeps three large dogs in her yard, one of which is a Pit Bull and two are large German Shepherds who made threatening postures at Respondent's employees when they visited Petitioner's home for inspections. Although Petitioner maintains that the two German Shepherds do not belong to her, they were at her home on each occasion when she was visited by licensing staff and Respondent's sanitation inspector. Petitioner keeps the dogs, which roam at will around the fenced area her home, at bay by swinging a rubber hose at them. The fact that Petitioner is receiving welfare benefits is not an automatic disqualification which prevents her from being assigned foster children. Petitioner encountered problems with her spouse which culminated in a separation and she was, therefore, left with insufficient income to maintain herself and she applied for and is receiving welfare benefits. Petitioner plans to begin employment at Jackson Memorial Hospital shortly.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: Respondent, Department of Health and Rehabilitative Services, enter a final order finding that Petitioner is not eligible to be assigned foster children. 2/ DONE AND ENTERED in Tallahassee, Leon County, Florida, this 13th day of October, 1988. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of October, 1988.
Findings Of Fact At all times material hereto, Berta Cabral and Cabral Adult Foster Home were certified by the Department of Health and Rehabilitative Services to operate as an adult foster home. On October 2, 1985, Freda Aliber was released as a patient from Coral Gables Hospital and was placed in Cabral Adult Foster Home. When she arrived at the Cabral Adult Foster Home she had with her personal papers including bank statements for accounts which she held at Coral Gables Federal and at City National Bank. On October 3, 1985, Berta Cabral's daughter Odalys Ibarra telephoned Coral Gables Federal to advise that she would be coming to the bank that day with Freda Aliber. Later that same day Odalys Ibarra, Julie Ibarra, and Freda Aliber came to Coral Gables Federal at which time Odalys Ibarra attempted to have her name added to Aliber's bank account. Further, Odalys Ibarra made her requests of the bank personnel in Spanish although Freda Aliber does not understand Spanish. Bank employees refused to add Odalys Ibarra's name to Freda Aliber's account. On or about October 3, 1985, Odalys Ibarra telephoned City National Bank, identified herself as Berta Cabral's daughter, and asked a number of personal questions regarding Freda Aliber's account at that bank. Odalys Ibarra's attempts to gain access to Freda Aliber's personal funds were done with the full knowledge and consent of Berta Cabral. Freda Aliber did not understand what Berta Cabral, Odalys Ibarra, and Julie Ibarra were attempting to do and did not understand why she was taken to the bank.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered revoking Berta Cabral's certification as Cabral Adult Foster Home. DONE and RECOMMENDED this 31st day of July, 1986, at Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of July, 1986. COPIES FURNISHED: William Page, Jr., Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 Leonard Helfand, Esquire Department of Health and Rehabilitative Services 401 N.W. 2nd Avenue Miami, Florida 33128 Berta Cabral Cabral Adult Foster Home 2331 N.W. 31 Street Miami, Florida 33142
The Issue Whether Respondents' application for renewal of their family foster home license should be denied on the grounds set forth in the agency's August 16, 1995, letter to Respondents?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: The Department is a state government licensing and regulatory agency. At all times material to the instant case, Respondents Jose and Emma Perez were licensed to operate a family foster home at their residence in Hialeah, Florida (hereinafter after referred to as the "licensed home"). Before obtaining their license, Respondents were required by the Department to sign an "Agreement to Provide Substitute Care for Dependent Children" (hereinafter referred to as the "Agreement"). Respondents signed the Agreement on or about July 1, 1994. In so doing, they agreed that they would, as licensed foster parents, among other things, "comply with all requirements for a licensed substitute care home as prescribed by the [D]epartment." 1/ On or about January 13, 1995, Respondent Jose Perez was involved in a physical altercation with his brother-in-law. The altercation took place in the licensed home. 2/ The brother-in-law was living with Respondents in the licensed home (on a temporary basis) at the time of the incident. 3/ During the altercation, Jose threw a glass object in the direction of his brother-in-law. The object hit a wall and shattered upon impact. A piece of flying, shattered glass accidentally struck Respondents' daughter, Jessica, 4/ who was sleeping in her bedroom. Jessica sustained a cut on her forehead. Jose was subsequently arrested for aggravated battery by the Hialeah Police Department. 5/ Some time after the incident, the Department placed two foster children, A.A. and H.A., in Respondents' care. In the summer of 1995, Respondents filed with the Department an application to renew their family foster home license. The application was ultimately assigned (for review and investigation) to John Gallagher, a senior (foster) licensing counselor with the Department. On July 19, 1995, Gallagher went to the licensed home. Outside the home, on the northwest portion of Respondents' property, Gallagher observed a considerable number of, what appeared to be, discarded items. Inside the home, the floors were dirty and littered with a large amount of trash. On the floor in one of the rooms was dog feces, which Gallagher instructed Respondents to "pick . . . up immediately." During his visit to the licensed home on July 19, 1995, Gallagher had Respondents sign a "Bilateral Service Agreement," which was similar, but not identical, to the Agreement that Respondents had signed the year before. All of the necessary paperwork, however, was not completed during the visit. Upon leaving the home, Gallagher told Respondents that he would stop by again at the end of the day or on the following day to finish the paperwork. At 9:00 a.m. the next day, July 20, 1995, Gallagher returned to the licensed home. He was accompanied on this visit by Maria Siervo, another (foster care) licensing counselor with the Department. The conditions both outside and inside the home were not materially better than they had been the day before when Gallagher had paid his first visit to the home. In the clutter outside the home on the northwest portion of the property was a bucket (with no top or covering) that contained broken glass and a discarded baby diaper. On a table outside the home was a baby bottle containing congealed milk. Both the bucket and the bottle were readily accessible to A.A., the older of the two foster children in the licensed home. (A.A. was approximately two years of age.) Inside the home, the floors were still covered with a considerable amount of dirt and trash. They obviously had not been swept or mopped. A.A. was walking around on these floors without any shoes or socks on in her bare feet. There was a freestanding fan in the bedroom that A.A. and H.A. shared that did not have a protective covering. When Gallagher was in the bedroom, he saw the fan operating and A.A.'s fingers come within a few inches of the fan's exposed, moving blades. Gallagher instructed Respondents to either obtain a protective covering for the fan or remove it from the home. There were no screens on the windows of the home to keep insects out of the living area. 6/ In addition, two doors to the home were "wide open" throughout Gallagher's and Siervo's visit. H.A. was in a playpen that was old and dirty. In Gallagher's presence, a cat with sharp claws (which was not Respondents') started climbing up the side of the playpen. The cat was removed from the premises, however, before it was able to join H.A. in the playpen. The cat was not the only animal in the home on July 20, 1995. Gallagher also discovered newborn puppies underneath a bed in the home. Gallagher and Siervo spoke with Respondents during their July 20, 1995, visit about the unclean, unhealthy and hazardous conditions that existed in the licensed home. They asked both Respondents why the home was not clean. Jose responded by stating that he worked all day and that it was his wife's responsibility to clean the home. Emma stated that she was planning on cleaning the home, but that she was "lazy" and had not yet gotten around to it. Later that same day, after he and Siervo had left the licensed home, Gallagher reported what he had observed on his two visits to the home to the Department's abuse hotline. Two additional reports, both alleging that there was violence in the home, were subsequently made to the abuse hotline. All three reports were assigned to Darlise Baron, a protective investigator with the Department, for investigation. As part of her investigation, which began on March 20, 1995, Baron visited the licensed home. Conditions had improved since Gallagher's and Siervo's visit to the home on July 20, 1995. As Baron stated in her investigative report: Upon PI['s] arrival at address . . ., PI did not see any immediate danger for the children. The family had clean[ed] up the house. The floor was swept, kitchen was clean, no dirty dishes in the sink or around kitchen, the bathrooms were clean, the children's room was clean, the beds [were] made w/clean sheets. Mom['s] room had clean clothes on the bed being folded to be put away. There was dog feces seen on the floors. The large bags of garbage w[ere] placed on the curb, which was fil[l]ed w/clothes and grass. The fan w/out cover was placed in mom's room w/door close[d] to be thrown away. The dirty baby's bottle was not seen. . . . Nonetheless, in view of the information that she had concerning the conditions that had previously existed in the home and the incident that had occurred in the home involving Jose and his brother-in-law, 7/ Baron determined that the reports that were the subject of her investigation should be classified as proposed confirmed and she so indicated in her investigative report. 8/
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department enter a final order denying Respondents' application for the renewal of their family foster home license, without prejudice to Respondents applying for a new license after July 31, 1996. 12/ DONE AND ENTERED in Tallahassee, Leon County, Florida, this 18th day of March, 1996. STUART M. LERNER, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of March, 1996.
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 The issue in this case is whether Petitioner should deny the application for renewal of Respondent's foster home license because “skinny dipping” with a foster child at the foster home violates Section 409.175, Florida Statutes (2001), and Florida Administrative Code Rule 65C-13. (All section references are to Florida Statutes (2001). All references to rules are to rules promulgated in the Florida Administrative Code in effect on the date of this Recommended Order.)
Findings Of Fact Petitioner is the state agency responsible for licensing and regulating foster homes in Florida. A foster home license is valid for a period of one year and must be renewed annually. Various privatized entities supervise licensed foster homes, review applications for foster home licenses, and make recommendations to Petitioner regarding the applications. However, the recommendations are not binding on Petitioner. Petitioner, rather than the private entity, is the licensing agency. For example, Petitioner rejected the recommendation from the private entity with responsibility for reviewing the application at issue in this proceeding. Petitioner first issued a foster home license to Respondent on January 28, 2000. Petitioner licensed Respondent to operate a therapeutic foster home. A therapeutic license authorized Respondent to operate a foster home for children with psychological or emotional disorders and for children without such disorders. Therapeutic foster homes operate under the auspices of a private entity known as Personal Enrichment through Mental Health, Inc. (PEMHS). PEMHS recommended that Petitioner issue the original foster home license on January 28, 2000, and a renewal license that Petitioner issued on January 28, 2001, for the second year. The second therapeutic foster home license expired on January 27, 2002. Petitioner never took action to discipline or revoke Respondent’s therapeutic foster home license. In July 2001, Respondent applied for a non- therapeutic foster home license. The non-therapeutic license that Respondent seeks authorizes a licensee to operate a foster home only for children without psychological or emotional disorders. Non-therapeutic foster homes operate under the auspices of a private entity known as Family Continuity Programs (Family Continuity). Family Continuity recommended that Petitioner approve the application for a non-therapeutic foster home license. However, Petitioner did not follow the recommendation of Family Continuity and denied the application. Petitioner's denial of Respondent's application for a non-therapeutic foster home license is the proposed agency action that is at issue in this proceeding. Respondent's application for a non-therapeutic foster home license is not an application for a new license. Rather, it is an application for renewal of an existing license. Both the therapeutic license that Respondent held at the time of the application and the non-therapeutic license that Respondent seeks authorize the licensee to operate a foster home for children without psychological or emotional disorders. By applying for a non-therapeutic foster home license before the expiration of his therapeutic foster home license, Respondent sought to renew his license to operate a foster home for children without psychological and emotional disorders. The non-therapeutic license that Respondent seeks does not impose any requirements in addition to those that Respondent had already satisfied when Petitioner granted the therapeutic license to Respondent. The requirements for the therapeutic license are more stringent than those that must be met to qualify for a non-therapeutic license. The requirements for a therapeutic license are more comprehensive, and Petitioner requires an applicant for a therapeutic license to have more training than an applicant for a non-therapeutic license. A non-therapeutic license does not impose requirements in addition to those imposed for a therapeutic license. Petitioner proposes to deny the application for renewal of Respondent's foster home license on the sole ground that Respondent went "skinny dipping" with two minor males. One of those males was a foster child assigned to Respondent. The foster child is a victim of past sexual abuse and has psychological and emotional disorders. The child suffers from oppositional defiance disorder and mood disorder. The symptoms of the disorders include self-injury, such as head banging, aggression, anger, and low self-esteem. However, many of the behavioral problems diminished during the 15 months that the foster child was in Respondent's care. The "skinny-dipping" events occurred between six and nine times during the 15 months that the foster child was in Respondent's care. During that time, the foster child was between 12 and 14 years old. The foster child swam nude in the swimming pool at Respondent's residence and bathed nude in the hot tub adjacent to the pool. On some of those occasions, Respondent was nude in the hot tub and swimming pool with the foster child and at other times the two were in the swimming pool and hot tub independently of each other while both were nude. The local sheriff's office investigated the foster home and found no indicators of abuse. Once PEMHS learned of the "skinny dipping" events, neither PEMHS nor Petitioner sought to revoke Respondent's therapeutic foster home license or to provide Respondent with remedial training. Rather, PEMHS removed the foster child from the foster home and refused to assign any more foster children to Respondent's foster home. At the administrative hearing, Petitioner sought the post-hearing deposition testimony of Dr. Cotter for several purposes. One of those purposes was to show the impact on the foster child from the "skinny dipping" events. Another purpose was to show that the "skinny dipping" was "grooming behavior" for future pedophilia. The ALJ sustained Respondent's objection to the admissibility of the expert deposition testimony for the purpose of showing the impact on the foster child and for the purpose of showing that the "skinny dipping" was "grooming behavior" for future pedophilia. Dr. Cotter could not render an opinion concerning the actual impact on the foster child from the "skinny dipping" events or whether those events were actually intended by Respondent as "grooming behavior" for future pedophilia. Dr. Cotter did not intend to evaluate either the foster child or Respondent before rendering his opinions and, in fact, never evaluated either individual. Any expert opinion by Dr. Cotter concerning "grooming behavior" for pedophilia was not relevant to the grounds stated in the Notice of Denial. That expert opinion was relevant only to grounds not stated in the Notice of Denial. Nudity in a swimming pool and hot tub are not synonymous with "grooming behavior" for pedophilia. Nudity and "grooming behavior" for pedophilia are separate grounds for denying the application for renewal of Respondent's license to operate a foster home. Petitioner failed to provide adequate notice prior to the administrative hearing that Petitioner sought to deny the renewal of Respondent's license on the separate ground that Respondent engaged in "grooming behavior" for pedophilia. Fundamental principles of due process prohibit a state agency from notifying a regulated party of the allegations against the party and then, at the hearing, proving-up other allegations. One of the primary functions of an ALJ is to assure that an administrative hearing is a fair hearing. Respondent was not prepared at the administrative hearing to submit evidence, including expert testimony, to refute any allegation not stated in the Notice of Denial. The admission of evidence relevant to allegations not stated in the Notice of Denial would have required a continuance of the administrative hearing to provide Respondent with an opportunity to refute the allegation. A continuance would have denied Respondent a remedy during the period of continuance, increased the economic burden on Respondent, and frustrated judicial economy. Nothing prevents Petitioner from bringing a separate proceeding against the licensee based on the allegation that Respondent engaged in "grooming behavior" for pedophilia. The ALJ limited the testimony of Dr. Cotter to those grounds for denial that Petitioner stated in the Notice of Denial. In relevant part, the Notice of Denial states: After careful review and consideration, your application has been denied. Our decision is based on the following: Your admission that you and two minor boys, one of which was a foster child under your supervision, participated in several "skinny dipping" incidents during your recent licensure as a foster parent for Pinellas Enrichment Through Mental Health Services (PEMHS). As you are aware, the nature of a boy's early experiences may affect the development of his sexual attitudes and subsequent behavior. Therefore, foster parents are expected to provide opportunities for recreational activities appropriate to the child's age. "Skinny dipping" in a hot tub with two minor boys violates the intent of this rule. These incidents reflect poor judgment for a person who is a licensed foster parent. Respondent's Exhibit 1. The Notice of Denial essentially states four grounds for denying the application for renewal of Respondent's license. One ground is the impact on the development of the foster child's sexual attitudes and subsequent behavior. Another ground is nudity between a foster parent and a foster child. A third ground is that Respondent exercised poor judgment. The remaining ground is that Respondent provided recreational activities that were not appropriate to the foster child's age. No evidence shows that the "skinny dipping" events had any adverse impact on the development of the foster child's sexual attitudes and subsequent behavior. Dr. Cotter did not evaluate the foster child to determine the actual impact of the events on the foster child. Contrary to the statements in the Notice of Denial, Petitioner's representative testified at the hearing that Petitioner did not consider the impact on the child that resulted from skinny dipping with Respondent. The preponderance of evidence shows that the actual impact of the foster care provided by Respondent during the 15 months in which the "skinny dipping" events occurred was positive. Many of the foster child's behavioral problems greatly diminished. The foster child made remarkable progress in his behavior both at home and at school. The foster child bonded with Respondent, and Respondent was an exemplary foster parent. The placement of the child with Respondent was so successful that Family Continuity published an article in their magazine about the successful match between the foster child and Respondent. Family Continuity considers Respondent to be an exemplary foster parent and wishes to have Respondent in its foster care program. If Petitioner grants the application for renewal, Family Continuity intends to return the foster child to Respondent for adoption. The second ground stated in the Notice of Denial is nudity between the foster parent and foster child. Without considering the impact on the foster child, Petitioner determined that being naked in the presence of a foster child, without more, was sufficient to close a foster home, remove a child, and revoke a foster home license. Petitioner cited no written statute or rule that prohibits nudity between a foster parent and foster child; or that establishes intelligible standards for regulating such nudity. Petitioner failed to submit competent and substantial evidence to explicate an unwritten policy that prohibits or regulates nudity. Rather, some evidence shows that nudity between foster parents and foster children is generally unavoidable and common. The third ground stated in the Notice of Denial is that Respondent exercised poor judgment. Several witnesses at the hearing and Dr. Cotter opined that Respondent exercised poor judgment. It is unnecessary to determine whether Petitioner exercised poor judgment because Petitioner cited no written rule or policy that defines or prohibits "poor judgment." For reasons stated in the Conclusions of Law, Petitioner must base a denial of a license application on a finding that the applicant violated a specific statute or rule. Petitioner cannot use the Notice of Denial to invent requirements that are not authorized by statute or rule. Petitioner cited no statute or rule that defines "poor judgment" or that establishes intelligible standards to guide the discretionary determination of whether an applicant has exercised poor judgment. In the absence of intelligible standards, the determination of whether an applicant has exercised poor judgment is necessarily an exercise of unbridled agency discretion. The use of unbridled agency discretion to make findings of fact violates fundamental principles of due process. Unbridled agency discretion creates the potential that agency decision-makers may define poor judgment by relying on their personal predilections rather than on those standards authorized by the legislature. Even if it were determined that poor judgment is a standard authorized by the legislature and that Respondent violated that standard, the determination is not dispositive of whether Petitioner should renew Respondent's license to operate a foster home. For example, representatives for Family Continuity and PEMHS agreed in their testimony that Respondent exercised poor judgment. However, Family Continuity recommends that Petitioner issue the non- therapeutic foster home license while PEMHS recommends against renewal of the license. The remaining allegation in the Notice of Denial is that "skinny dipping" is not an age-appropriate recreational activity. Rule 65C-13.010(1)(b)8a. states: 8. Recreation and community. a. The substitute parents are expected to provide opportunities for recreational activities for children. The activities must be appropriate to the child's age and abilities. Swimming in a swimming pool and bathing in a hot tub are recreational activities within the meaning of Rule 65C- 13.010(1)(a)8a. Swimming nude and bathing nude in a hot tub with a nude adult are not appropriate for a child who is between 12 and 14 years old and whose psychological and emotional abilities are diminished by past sexual abuse.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Petitioner enter a final order finding that Respondent violated Rule 65C-13.010(1)(b)8 and granting Respondent’s application for a therapeutic foster home license. DONE AND ENTERED this 8th day of May, 2002, in Tallahassee, Leon County, Florida. ___________________________________ DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of May, 2002. COPIES FURNISHED: Frank Nagatani, Esquire Department of Children and Family Services 11351 Ulmerton Road, Suite 314 Largo, Florida 33778-1630 Gary A. Urso, Esquire 7702 Massachusetts Avenue New Port Richey, Florida 34653 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 Respondents Alfred Homes and Felicia Homes Foster1 subjected Petitioner Nidia Cruz to discriminatory housing practices based on Ms. Cruz’s national origin, in violation of the Florida Fair Housing Act, chapter 760, part II, Florida Statutes (FHA).
Findings Of Fact Ms. Cruz, who is Hispanic in national origin, rented and occupied a mobile home at lot #9 in Pine Grove Trailer Park (Pine Grove), in an unincorporated area adjacent to Fernandina Beach, Florida. Respondent Alfred Homes owns Pine Grove. His daughter, Respondent Felicia Homes Foster, oversees the business operations of Pine Grove. Ms. Foster lives in a mobile home at Pine Grove, and owns two other mobile homes that are rental units. Ms. Cruz rented one of these mobile homes from Ms. Foster. The remaining mobile homes in Pine Grove are owner-occupied, with those owners renting their lots from Respondents. Neither party could produce a lease between Respondents and Petitioner concerning the mobile home. Based on the parties’ testimony and other evidence presented at the final hearing, the undersigned finds that Petitioner’s tenancy for the mobile home commenced on or about October 15, 2016, for an approximately one-year term ending November 30, 2017. Respondents charged a $500 security deposit, and $600 per month for rent, which included water and sanitary sewer that Pine Grove’s well and septic system provided. Ms. Cruz was responsible for electrical services to the mobile home. After the expiration of the lease on November 30, 2017, the parties did not renew the lease, and Ms. Cruz continued to occupy the mobile home under a month-to-month agreement, until she vacated the mobile home on or about September 29, 2018. Ms. Cruz sought out Respondents to rent a mobile home, as her previous landlord had terminated the lease for her previous residence because of her unauthorized possession of pets. Ms. Foster informed Ms. Cruz that she had an available mobile home to rent, but as the previous tenants had just moved out, she needed to make repairs to the mobile home before it could be occupied. Ms. Cruz requested to move in immediately while the Respondents repaired the mobile home, because she and her daughter were, at that point, homeless. Respondents employed Michael Hamilton to repair and provide maintenance work to the mobile homes in Pine Grove. Mr. Hamilton worked for Respondents on weekends, as he had a full-time job during the week. Within approximately one month of Ms. Cruz moving into her mobile home, Mr. Hamilton made the needed repairs to its interior, including replacing the refrigerator, carpet, commode, and door locks. After moving into the mobile home, Ms. Cruz was involved in an incident at a nearby McDonald’s restaurant with an employee. That employee, Theresa McKenzie, was a tenant of Pine Grove and resided in lot #10, which was adjacent to Ms. Cruz’s mobile home. Ms. Cruz and her daughter, Ms. Burgos, complained to Ms. Foster that Ms. McKenzie and her co-tenant Earnest Roberts made loud, harassing, and defamatory statements about Ms. Cruz and her national origin. Respondents, individually, warned Ms. McKenzie and Mr. Roberts to refrain from calling Ms. Cruz and Ms. Burgos names. The feud between Ms. Cruz and Ms. McKenzie was interrupted when Ms. Cruz was arrested on November 18, 2016. Ms. Cruz was charged with, among other offenses, aggravated stalking arising from a violation of an order of protection and filing a false police report. The victim of these offenses was a previous landlord from whom Ms. Cruz had rented a room. While in pretrial detention, a psychologist evaluated Ms. Cruz, and determined her to be incompetent to proceed in the criminal proceeding. The trial court subsequently committed Ms. Cruz to a mental health facility, and she pled guilty to filing a false police report. The trial court sentenced Ms. Cruz to a split sentence of two years with special conditions, which included enrollment into the mental health court program. After acceptance into the mental health court program, Ms. Cruz was released from the Nassau County Jail. On February 13, 2017, Ms. Foster hand delivered a letter to Ms. McKenzie and Mr. Roberts, which warned them that if they did not refrain from verbal attacks against Ms. Cruz, Respondents would evict them from Pine Grove and obtain a no trespassing order. Chris Cummings, who was a Pine Grove resident at lot #4, testified he was aware of the incident at McDonald’s involving Ms. Cruz and Ms. McKenzie, as his wife also worked at that McDonald’s. Mr. Cummings observed, but could not hear, Ms. Cruz and Ms. McKenzie “squaring off” against each other. Mr. Cummings recounted that he observed Ms. Cruz lift her skirt and bend over, in a manner that he interpreted to mean that Ms. McKenize could kiss her rear end. In August 2017, Hurricane Irma caused a large branch from a pine tree to fall on top of Ms. Cruz’s mobile home, puncturing the exterior metal skin of the mobile home’s roof, which allowed water to intrude into the interior of the mobile home. The water intrusion caused significant damage to the ceilings, walls, and floor coverings of the mobile home. It is undisputed that Hurricane Irma inflicted serious damage to the mobile home, and that Ms. Cruz resorted to using buckets to catch water leaking from the roof. Shortly after Hurricane Irma passed, Mr. Hamilton placed a tarp over the top of the mobile home to stop the water intrusion. He then began repairs to Ms. Cruz’s mobile home over the course of several weekends, which included removing and replacing damaged sheet rock, patching the metal roof, and installing new carpet and linoleum flooring. Mr. Hamilton testified that Ms. Cruz, on several occasions, frustrated his ability to complete these repairs by denying him entry into the mobile home. Ms. Cruz presented evidence that her mobile home required extensive repairs upon moving in, and that it sustained severe damage from Hurricane Irma. However, she presented no credible evidence to rebut the testimony that Mr. Hamilton, on behalf of Respondents, completed all necessary repairs. Additionally, Ms. Cruz presented no credible evidence that Respondents treated her differently than other Pine Grove tenants in responding to and completing any necessary repairs to other tenant’s mobile homes. Neither the passage of time, incarceration, nor the trauma of Hurricane Irma, ended the feud between Ms. Cruz and Ms. McKenzie. The Nassau County Sheriff’s Office had regular call-outs to Pine Grove regarding Ms. Cruz and Ms. McKenzie. The feud escalated when, on January 4, 2018, Ms. McKenzie filed a petition for an injunction for protection against Ms. Cruz, and the circuit court entered a temporary injunction that same day. The next day, January 5, 2018, Ms. Cruz and Ms. Burgos each filed petitions for an injunction for protection against Ms. McKenzie. Then, on January 16, 2018, Ms. Cruz sought a petition for an injunction for protection against Mr. Roberts, which the circuit court granted, as a temporary injunction, that same day. On January 17, 2018, the circuit court held a hearing on the petition against Ms. Cruz and Ms. Burgos’s petition against Ms. McKenzie, and on January 18, 2018, granted a final injunction in each case. On January 18, 2018, Ms. Burgos filed a petition for an injunction for protection against Mr. Roberts, which the circuit court denied. On January 24, 2018, the circuit court heard Ms. Cruz’s petitions against Ms. McKenzie and Mr. Roberts; the circuit court denied the injunction against Ms. McKenzie, but granted a final injunction against Mr. Roberts. On January 29 and February 9, 2018, the circuit court entered orders to show cause in Ms. Burgos’s injunction against Ms. McKenzie, and after hearing argument, dismissed them on February 15, 2018. Despite these multiple injunction proceedings, Ms. Cruz and Ms. McKenzie continued their feud. On January 22, 2018, Ms. Cruz was arrested for violation of the protection order in favor of Ms. McKenzie. Ms. Cruz’s arrest triggered a violation of her felony probation. While in pretrial detention, she was again evaluated by a psychologist, who determined her to be incompetent to proceed. The circuit court committed Ms. Cruz to a mental health facility. She subsequently returned to court and pled guilty to a violation of probation. The circuit court sentenced Ms. Cruz to a split sentence of time served, reinstated probation, and extended probation with an added special condition for 12 months. Ms. Cruz was released from the Nassau County Jail on July 27, 2018. On July 31, 2018, Ms. Foster hand delivered a notice to terminate the lease, stating that the lease will end on August 31, 2018, and that Ms. Cruz should vacate the mobile home no later than September 1, 2018. Ms. Cruz and Ms. Burgos continued to hold over in the mobile home until they moved out on September 29, 2018. Ms. Cruz failed to provide any credible evidence that Respondents, or Mr. Hamilton, made any disparaging statements to Ms. Cruz regarding her national origin. Ms. Cruz failed to provide any credible evidence that Respondents treated her less favorably than other tenants with regard to her feud with Ms. McKenzie. Put differently, Ms. Cruz failed to provide any credible evidence that Respondents treated any other tenant disputes differently than the way they treated the dispute between Ms. Cruz and Ms. McKenzie. Ms. Foster attempted to intervene on behalf of Ms. Cruz to end the feud, when she hand-delivered the letter to Ms. McKenzie on February 13, 2017, that threatened eviction. The credible evidence presented demonstrated that Ms. Cruz often created or exacerbated this feud, which ultimately led to her incarceration. Ms. Cruz failed to provide any credible evidence that Respondents’ decision to end the month-to-month holdover of the lease of the mobile home was based on her national origin, or that Respondents treated Ms. Cruz differently than any other tenants who resided at Pine Grove in ending the month-to-month holdover of a lease.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned hereby RECOMMENDS that the Florida Commission on Human Relations issue a final order dismissing Nidia Cruz’s Petition for Relief. DONE AND ENTERED this 1st day of July, 2020, in Tallahassee, Leon County, Florida. S ROBERT J. TELFER III 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 1st day of July, 2020. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 (eServed) Nidia Cruz Post Office Box 1923 Callahan, Florida 32011 (eServed) James Pratt O'Conner, Esquire James Pratt O'Conner, P.A. Post Office Box 471 Fernandina Beach, Florida 32035 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 (eServed)
