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.
The Issue Whether Petitioners, K.W. and L.A.W., should be granted a license to be foster parents.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of facts are made: Petitioners are a married couple who applied to Respondent for a foster home license. Petitioners have three children. The background investigation conducted by Respondent revealed reports of incidents of domestic violence and battery involving Petitioners and their children. On October 4, 1999, police officers responded to Petitioners' home after receiving a report of domestic violence. The officer's investigation revealed that one of the Petitioners, L.A.W., had been battered by her son. The child had been involved in pastoral counseling for his aggressive behavior. Petitioner, K.W., advised the police officer that the child, W.A.W., would be moving from the residence because of his continuing inappropriate behavior. On April 7, 2002, another incident of domestic violence was reported and investigated. On this occasion, the two younger children of Petitioners were involved in an altercation that resulted in Petitioner, K.W., being rendered unconscious by a blow to the head with an object delivered by one of the children, C.W. C.W. was arrested for aggravated battery. In February 2003, Petitioners desired to keep a six- month-old, unrelated child in their home. The child was placed in the home contingent on C.W.'s moving from the home and not residing in the home. Petitioners agreed to this contingency of placement, and the child was placed in Petitioners' home. On November 5, 2003, Petitioners applied to be licensed as foster parents. Ten days after Petitioners applied to be licensed, another incident of domestic violence occurred. On November 15, 2003, two of Petitioners' adult children got into a fistfight which resulted in one having a broken nose. As a result, W.A.W. was arrested. At the time of the altercation, W.A.W., 21 years old and the oldest child who had moved out at an earlier time as a result of his behavior, was residing at Petitioners' residence. Although the police report indicates that the incident occurred at Petitioners' residence, the testimony indicated that it occurred "down the street." All three of Petitioners' children continue to reside locally and frequent their parents' home. Petitioners are highly recommended by a representative of The Children's Home Society, a Guardian ad Litem, and their pastor. Respondent has the responsibility of placing foster children in a safe setting. But for the behavior of their children, Petitioners would qualify for licensure. As long as Petitioners' children frequent Petitioners' residence, any child placed in that residence is at risk. As a result, Petitioners are not qualified to be licensed as foster parents.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services enter a final order denying the foster care license application of Petitioners. DONE AND ENTERED this 12th day of January, 2005, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of January, 2005. COPIES FURNISHED: Thomas J. Thompson, Esquire Thomas Thompson, P.A. 100 South Washington Avenue Titusville, Florida 32780 Richard Cato, Esquire Department of children and Family Services 400 West Robinson Street, Suite S-1106 Orlando, Florida 32801-1782 Paul Flounlacker, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
The Issue Should Respondents have their family foster home license renewed?
Findings Of Fact Petitioner issued Family Foster Home License No. 059527 to Respondents for the period of May 25, 1995 until April 25, 1996. That license allowed Respondents to care for the foster children, D.W., D.G. and T.G. Respondents wish to renew the license. Petitioner has denied the renewal based upon an allegation that Respondents tested positive for marijuana use. Respondents had been reported through the "abuse hotline" for alleged drug usage. This led Petitioner to request Respondents to submit to urinalysis to detect possible drug usage. Respondents voluntarily submitted to the test, which results led to the allegation. Petitioner, in accordance with law, insists that foster children shall be provided for in a safe environment where drugs are not abused, thus, the decision to deny the license renewal. D.W. is five and one-half years old. He has severe physical and developmental problems. He suffers from AIDS. For that reason, he has had frequent hospitalization. D.W. has cerebral palsy and cannot walk. He has neuropathy of the brain, failing kidneys, problems with infection, and nose bleeds. As described, D.W.'s care involves complex medical needs. He must be closely observed. He receives numerous medications. His care involves tube feeding. Respondents have cared for D.W. since he was six months old. D.G. is four years old. T.G. is two years old. Respondents have cared for those children for approximately two years. D.G. and T.G. are also developmentally-delayed children. T.G. has difficulty eating. It takes approximately one hour for her to eat. T.G. does not talk. She receives therapy in the home. D.G. attends a special school. Health care professionals Scott Dryer, Julie MacNamara and Kathleen McGlone have assisted Respondents in carrying for the foster children in the home. During their visits to the home those individuals have been positively impressed with Respondents' demeanor and cooperation in meeting the needs of the children. Likewise Dr. Kathleen Ann Ryan-Poirer who treated D.W. in the hospital was positively impressed with Mr. Jolly's attention to D.W. while the child was hospitalized. R.D.J. is Respondents' adult son. He is HIV positive, having been diagnosed seven to eight years ago. He does not take medication for his condition. Instead, he smokes as many as 12 marijuana cigarettes per day to help stimulate his appetite in confronting his HIV condition. He is a frequent visitor to his parents' foster care home. He visits approximately every weekend. On the visits, he smokes marijuana in the presence of his parents, but not in the presence of the foster children. On February 15, 1996, Respondents went to visit R.D.J. at his work at a local nightclub. R.D.J. and two friends went into the parking lot and entered a van. With Respondents in attendance, for a period of 30-45 minutes in the closed vehicle, R.D.J. and his friends smoked two to four marijuana cigarettes for recreational purposes. The conduct by Respondents in being in a van where marijuana was being used for recreational purposes was inappropriate, notwithstanding their efforts to visit their son. On February 16, 1996, Guy Bardell, a protective investigator for the Petitioner, visited Respondents in their home concerning the allegation that Respondents had used marijuana. At that time, Respondents were requested to take a drug test to address the allegation. On February 17, 1996, Respondent, Paul Jolly, and his son, R.D.J., went on an automobile trip that lasted for approximately two hours. During the trip, R.D.J. smoked three marijuana cigarettes in the closed vehicle. On February 19, 1996, Respondents submitted to a urinalysis to determine whether they were using marijuana. In appropriately-administered tests to confirm the presence or absence of marijuana through gas chromatography mass spectrometry (GS/MS), a scientifically-dependable test method used as evidence in court proceedings, marijuana metabolite was detected in samples provided by both Respondents. This GS/MS test method was designed to detect the metabolite for confirmation at 15 nanograms per mill (ng/mL). The results in the Paul Jolly test were 32 ng/mL. The results for Merida Jolly were 23 ng/mL. Both amounts exceeded the expected levels for individuals passively exposed to the sidestream smoke of persons actively smoking marijuana. Therefore, the assertion by Respondents that they had only been passively involved with marijuana use on the occasions described fails to explain the levels of marijuana metabolite in their systems. This creates the inference that Respondents had exposure to marijuana other than by passive means. This finding is arrived at in reliance upon the deposition testimony by Dr. Samuel E. Mathews, who holds a Ph.D. in analytical chemistry. No other explanations were made which would explain the levels of metabolite found in the samples produced by the Respondents which would lead one to conclude that those amounts were solely the product of passive inhalation of marijuana smoke. Based upon the results of the drug tests, Respondents were orally informed, on February 27, 1996, that their family foster care license would not be renewed. Further notification was provided on March 25, 1996 by correspondence.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered which denies renewal of Respondents' family foster home license. DONE AND ENTERED this 9th day of September, 1996, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of September, 1996. APPENDIX TO RECOMMENDED ORDER CASE NO. 96-2049 Petitioner's Findings: 1-7. Subordinate to facts found. 8-9. Not necessary to the resolution of the dispute. 10-19. Subordinate to facts found. The first two sentences are not necessary to the resolution of the dispute. The remaining sentences are subordinate to facts found. 21-24. Subordinate to facts found. COPIES FURNISHED: Lucy Goddard, Esquire Department of Health and Rehabilitative Services 1000 Northeast 16th Avenue, Box 3 Gainesville, Florida 32601 Anita Belle, Esquire The Justice Clinic Post Office Box 873 Gainesville, Florida 32602 Gregory D. Venz, Agency Clerk Department of Health and Rehabilitative Services 1317 Winewood Blvd., Ste. 204-X Tallahassee, Florida 32399-0700 Richard Doran, General Counsel Department of Health and Rehabilitative Services 1317 Winewood Blvd., Ste. 204 Tallahassee, Florida 32399-0700
The Issue Whether Petitioner’s application for a foster home license should be approved or denied by Respondent, the Agency for Persons with Disabilities (“APD”).
Findings Of Fact Based upon the testimony and documentary evidence presented at hearing, the demeanor and credibility of the witnesses, and the entire record of this proceeding, the following Findings of Fact are made: Petitioner is an applicant for licensure of a foster home residential facility. Ms. Allen is designated as the owner of the proposed new facility. The proposed name of the facility is Darleen Allen Foster Home, to be located 6 Upon review of Respondent’s Exhibit 1, Ms. Allen’s social security number was clearly legible on page 6, and the number was redacted from the exhibit. 7 Respondent’s counsel advised that Ms. Allen’s social security number was clearly legible in Respondent’s Exhibit 4, and that number was redacted from that exhibit. 8 Petitioner emailed her PRO (with a copy sent to APD’s counsel) directly to the undersigned, which is inappropriate. The undersigned directed her Judicial Assistant to have the document placed on the docket. at 208-A 42nd Avenue East, in Bradenton, Florida. In April 2020, Ms. Allen submitted her completed initial application to APD. On April 15, 2020, Larry Collins, an APD employee “who handles all new and initial applications for licensure” requested a background record search of Ms. Allen. On April 23, 2020, Mr. Collins signed a note and affixed it to Ms. Allen’s application indicating it was a “complete package 4/23/2020.” APD licenses both foster homes and group homes. The “main difference” between a foster home and a group home is the number of residents who may live in either home: a foster home is limited to three residents, and the owner usually lives in the home as the primary caregiver. The number of residents in a group home was not provided. APD did not notify Ms. Allen of any apparent errors or omissions in her completed application, and did not request any additional information from her until sometime in June 2020. On or about June 11, 2020, as part of her review of Ms. Allen’s application and based on Mr. Collins’ request, Ms. Leitold completed a background search of Ms. Allen utilizing DCF’s network data base. Ms. Leitold learned that Ms. Allen had a “verified report in Manatee County with respect to inadequate supervision.” Ms. Leitold testified that Ms. Allen “was not aware of the verified report.” Ms. Allen immediately contacted DCF, requested a copy9 of the DCF report, and filed corrections to her foster home license application10 in late June 2020. When Ms. Allen filed corrections to her foster home license application, she also provided a copy of a Sunrise Community, Inc., “Disciplinary Warning 9 Ms. Allen testified that her Exhibit F, the report she received from DCF, had various portions “blacked out.” Further, Ms. Allen testified that the victim in her Exhibit F was listed by two different names and her age was different than found in Ms. Allen’s Exhibit C and/or APD’s Exhibit 3. 10 APD’s denial of Ms. Allen’s application was not based on any allegations of fraud, and none is found. Notice & Action Taken” for an incident that occurred in December 2012. Ms. Allen was contacted about a male client who fell in the shower and hit his head on the soap dish. Ms. Allen did not direct the staff to take the client to the emergency room for an evaluation. Ms. Allen was told at that time the disciplinary warning was “only a written warning.” Further, according to her foster home license application, Ms. Allen remains employed by Sunrise Community, Inc., these eight years later. In its denial letter, APD provided in addition to section 393.0673(2), Florida Statues, as the basis for the denial, the following: 4. On or about March 19, 2012, the Department of Children and Families (“DCF”) opened an investigation into allegations of neglect by Darleen Allen against vulnerable adult B.G. The investigation was closed by DCF on or about May 2, 2012 with verified findings of neglect of a vulnerable adult by Darleen Allen. Both parties offered DCF’s (CIS) as an exhibit,11 and both were admitted. APD did not present the DCF investigator(s) or anyone to testify as to the basis for the “Verified Findings.” Upon review of the CIS, the undersigned finds multiple instances of inconsistencies, miscalculations, and errors. There are so many inconsistencies, miscalculations, and errors that the “Verified Findings” are suspect at best and completely unworthy of any credence at worst. The inconsistencies, miscalculations, and errors include: Page 1: The DCF investigation was opened against Manasota ARC, a group home, on March 19, 2012, based on “concerns that this group home does not have the ability to adequately care for Mr. [G].” Page 1 of 4, under case name, section I, and page 2 of 4, section III: the 11 Petitioner’s Exhibit D, DCF’s CIS, contained pages 1 through 4. Respondent’s Exhibit 3, DCF’s CIS, contained the same pages 1 through 4, plus an additional 21 pages of “Chronological Notes Report.” Respondent’s Exhibit 3, pages 50, 54, 55, and 59 are identical to Petitioner’s Exhibit M, pages 9, an 18, 19 through 20, respectively. victim’s name is “B.E.G.”12 or “Ms. G,” yet in sections V, VI, and VII the victim is identified as “B.S.”13 Page 2 of 4, section III: the victim’s date of birth is written as “07/09/1993,” yet her age is recorded as 26 years old in section V. The date of the alleged abuse is March 19, 2012. At the time of incident, the patient was 18 years old. Page 2 of 4, section IV: Ms. Allen’s date of birth is written as “09/21/1962,” yet her age is recorded as 57 years old. The date of the alleged abuse is March 19, 2012. At the time of the incident, Ms. Allen was 49 years old. Page 2 of 4, section III:, the victim’s disabilities are listed as: Autism Physical Limitations - Other Retardation Mental Limitations - Other Mental Retardation Physically Disabled Other Medically Diagnosed Conditions Requiring Special Care Learning Disability Yet on page 2 of 4, section V: “[B.S.] is a frail 18-year-old vulnerable adult who suffers from Autism, Cri Du Chat Syndrome, mental and physical limitations, and dysphasia ... is non-ambulatory and must be moved in a wheelchair ... has scoliosis, and cannot perform her activities of daily living ... is not deaf or hard of hearing.” Page 2 of 4, section V, and page 3 of 4, sections VI and VII: the following 12 The undersigned is only using the initials of the alleged patient in order to shield her identity. 13 The undersigned is only using the initials of the alleged patient in order to shield her identity. sentence is found in ten separate sentences: “Implications for victim safety are low.” This sentence can have multiple meanings, and is therefore meaningless. Page 2 of 4, section V, A., in the “05-02-2012 UPDATE,” the following sentence is found: “Victim [B.S.] had been placed inappropriately at Manasota ARC. Upon discharge from the hospital, [B] was transferred to ... where her needs are being appropriately cared for.” Page 2 of 4, section III: the Caregiver Responsible is named Darlene Allen, yet the CIS notes attached provide: “Need to attempt to ID the AP [“alleged perpetrator”] and this may be the charge person of the group home.” Page 3 of 4, section VII, is in conflict with section 1, page 1. Section 1, page 1 provides: “Over the past two weeks, [Ms. G] had lost 15lbs. When [Ms. G] was admitted to the facility she weighed 86lbs and went down to 71lbs. …. Her weight was up to over 80 pounds and since being placed in the group home, she is not down to 71 pounds.” The victim was taken to the emergency room on March 15, 2012. The conflict arises through section VII, page 3 which provides: “She weighed just 74.2 pounds upon admission to [hospital] from 86 pounds she reportedly weighed when she was placed at the group home a couple of weeks earlier. The group home does not keep weight records so the actual amount of weight loss cannot be verified.” The victim’s exact weight loss is unknown. Ms. Leitold’s dismissal of these multiple discrepancies as “just errors, minor errors in the report” that “doesn’t change the fact that there was a delay in treatment … from the provider regarding the young lady or the gentleman in the shower” is troublesome. More troublesome is DCF’s CIS which does not provide clear or concise documentation of the person or persons responsible. The CIS itself is an institutional report, directed to Manasota ARC. As such, it would be critical to have reliable information on which to base a finding that Ms. Allen or someone else was responsible for the incident addressed in the CIS. Ms. Allen credibly testified she was the director of the Manasota ARC group home and there were other staff members in the home, but she was the only person from the home who was interviewed. Ms. Allen was in contact with the victim’s parents, and was the person who took B.G. (or B.S.) to the emergency room. Without more precise information, the verified finding is of no value to APD to make the determination of licensure. Ms. Allen credibly testified she was not aware of the DCF’s CIS or the “Verified Findings” related to the March 2012 incident until eight years after the fact. Mr. Corbett has known Ms. Allen for over three years. Mr. Corbett testified that he is aware of the DCF verified report. When asked directly, Mr. Corbett did not hesitate to testify that Ms. Allen could take care of his loved ones.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Persons with Disabilities enter a final order granting Petitioner’s application for a foster home license. DONE AND ENTERED this 26th day of October, 2020, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 26th day of October, 2020. COPIES FURNISHED: Darleen Marie Allen 208-A 42nd Avenue East Bradenton, Florida 34208 (eServed) Trevor S. Suter, Esquire Agency for Persons With Disabilities 4030 Esplanade Way, Suite 315C Tallahassee, Florida 32399-0950 (eServed) Danielle Thompson, Senior Attorney/Agency Clerk Agency for Persons With Disabilities 4030 Esplanade Way, Suite 309 Tallahassee, Florida 32399-0950 (eServed) Barbara Palmer, Director Agency for Persons With Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) Francis Carbone, General Counsel Agency for Persons With Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed)
Findings Of Fact The Respondents, Mr. and Mrs. Sherman Clarke, previously held a foster home license issued by the Petitioner, Department of Health and Rehabilitative Services ("the Department"). By letter dated August 11, 1995, the Department advised the Respondents that the Department would not be re-licensing their foster home. The letter stated the reasons for the Department's decision not to re-license the Respondent's foster home. The letter also included the following information: You are further advised that within 30 days of receipt of this letter you may contest the decision of this agency by requesting an administrative hearing pursuant to the Administrative Procedure Act, Chapter 120, Florida Statutes. Your request for an administrative hearing should be made by sending a written request to: Karen M. Miller District Legal Counsel 111 South Sapodilla Avenue, Third Floor West Palm Beach, FL 33401 The Department's letter of August 11, 1995, was sent by certified mail, return receipt requested. The letter was received by the Respondents on August 16, 1995. The Respondents waited until January 18, 1996, to request an administrative hearing. On that date they wrote and mailed a certified letter addressed to Karen M. Miller in which they, for the first time, requested an administrative hearing. The letter of January 18, 1996, was received by the Department a few days after it was mailed. The record in this case does not contain any explanation as to why the Respondents waited until January 18, 1996, to request an administrative hearing.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the Department of Health and Rehabilitative Services enter a Final Order in this case concluding that the Respondents waived their right to contest the Department's decision not to re-license their foster home. DONE AND ENTERED this 31st day of October, 1996, in Tallahassee, Florida. MICHAEL M. 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 31st day of October, 1996. COPIES FURNISHED: Catherine Linton, Esquire District 9 Legal Office Department of Health and Rehabilitative Services 111 Sapodilla Avenue West Palm Beach, Florida 33401 Mr. and Mrs. Sherman Clarke 509 44th Street West Palm Beach, Florida 33407 Gregory D. Venz, Agency Clerk Department of Health and Rehabilitative Services Building 2, Room 204-X 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard Doran, General Counsel Department of Health and Rehabilitative Services 1317 Winewood Boulevard, Room 204 Tallahassee, Florida 32399-0700
The Issue Are the Respondents entitled to renew their license to operate a family foster home?
Findings Of Fact Respondents held Family Foster Home License No. 059520, effective from May 18, 1995 through May 18, 1996. The license was not renewed based upon allegations in this case. At times relevant, Respondents provided foster care to F.J., who was thirteen when the hearing was conducted, to V.K. who was eight when the hearing was conducted, and to F.J. and V.K.'s two younger brothers. The children lived with the Respondents for approximately six and one-half years. Although F.J. is thirteen years old, she is a developmentally disabled child with an I.Q. in the range of 46 to 58. Her mental and developmental age is less than eleven years. On May 30, 1995 an investigation was begun concerning alleged sexual abuse of F.J. by James Comer. This led to the removal of the children from Respondents' home. On May 30, 1995 F.J. described James Comer's sexual misconduct to Brenda Mims, a human services counsellor for Petitioner. At that time F.J. told Mims that James Comer had touched her breast and felt on her. When F.J. described the contact which James Comer had with her, F.J. put her hands on her breast to demonstrate. She did not describe the point in time when this happened. On that date Mims interviewed Mary Comer concerning the allegations by F.J.. Mary Comer confirmed that F.J. had told Mary Comer that James Comer was "bothering her" and F.J. wanted it to stop. Mary Comer indicated that she thought that F.J. was referring to a "tickling incident". Mary Comer told Mims that she had confronted James Comer about the tickling and asked him to stop tickling F.J.. When Mary Comer spoke to Mims, she referred to F.J. coming to her and saying that "Dada" was bothering F.J.. The term "Dada" is the name the children used to refer to James Comer. The children referred to Mary Comer as "Granny". On June 7, 1995 Mims talked to F.J. again. At that time F.J. was concerned that James Comer not be able to find her in her new home. Assurances were given that James Comer could not find her. On this occasion F.J. told Mims that James Comer "would feel on her" and she didn't like it. In this conversation F.J. described fondling James Comer's penis. F.J. stated that James Comer would hit her with his fist sometimes if F.J. wouldn't cooperate with his advances. F.J. described a big roll of money that James Comer would give her if F.J. would cooperate with him. Otherwise James Comer would not give F.J. money. According to Mims, F.J. said that James Comer would give her money if F.J. would "be with him". In the June 7, 1995 discussion F.J. and V.K. told Mims that Mary Comer tried to prohibit James Comer from bothering F.J. and James Comer began to beat Mary Comer. Following such incident, the police were called, but James Comer was not removed from the home. In the June 7, 1995 conversation V.K. told Mims that on one occasion V.K. peeked out the door and saw F.J. lying on James Comer while he was seated in the reclining chair. Deborah Gipple is a licensed mental health counselor who has experience in counseling child victims of sexual abuse or other trauma. Gipple began counseling F.J. in November, 1995 and continued the counseling to the date of hearing. Gipple observed in F.J. conduct which is consistent with a child who has been sexually abused. This included F.J. exposing herself, rubbing against other children, problems in the classroom and at home concerning the need to follow directions, and a distrust evidenced by sneaking about doing things that were not necessary to avoid detection, such as sneaking about and removing food. F.J. told Gipple that James Comer touched between F.J.'s legs and touched her breast. F.J. further stated that James Comer had her lay on top of him. F.J. told Gipple that sometimes James Comer would come in the night and take F.J. from her bed. In these conversations Gipple observed that F.J. was aware that James Comer's actions were wrong. In these discussions F.J. stated a concern about her sister V.K. and the possibility that James Comer would harm V.K.. V.K. was competent to testify when she testified at hearing. On one occasion when V.K. was in the hallway with her brothers at night she looked in the T.V. room and saw F.J. on top of James Comer while he was seated in a reclining chair. V.K. described that F.J. was moving her body and doing "nasty stuff". On another occasion V.K. was outside the house and observed F.J. and James Comer in the T.V. room. As V.K. describes it, F.J. was playing with James Comer while he was sitting down. F.J. was on James Comer's lap. V.K. did not give exact details concerning what F.J. and James Comer were doing. Concerning these two instances, V.K. recalls that Mary Comer was not home on the first occasion. V.K. has no recollection concerning Mary Comer's whereabouts on the second occasion. V.K. had been subjected to corporal punishment by James Comer when living in his home. She also observed James Comer administer corporal punishment to her two brothers. In the June 3, 1996 video that was made to record F.J.'s remarks concerning James Comer, together with statements she made to others, F.J. demonstrates sufficient appreciation of the meaning of the duty and responsibility to tell the truth to warrant a finding that she was competent for that purpose. In the video she describes that James Comer made her touch his "private parts". She did not describe the period of time over which the sexual contacts were made between James Comer and F.J. She did recount how these events had occurred on a number of occasions. On one occasion her clothes were off when James Comer touched her. In the video tape F.J. describes that James Comer had touched her breast and genital area by pointing to those areas on her body. F.J. identified that the occasions when she was inappropriately touched occurred when Mary Comer was not at home. In the video F.J. refers to the fact that she told Mary Comer about being touched by James Comer, but that Mary Comer did not believe her. By October 1995 F.J., V.K. and their brothers had been placed in the foster home of Roberta Graham where they presently reside. While living with Graham, F.J. told Graham that "Dada", referring to James Comer, was touching F.J. in wrong places, that he touched her on her breasts, and that he took her hand and massaged his "private part", referring to his penis. F.J. told Graham that this happened when Mary Comer went out to get drinks. F.J. told Graham that the other children were outside playing and the door was locked and James Comer and F.J. were inside when events occurred. F.J. mentioned to Graham that an incident happened at night when everyone was in bed and "Dada" called F.J. out alone and then the other children, her brothers and V.K. came out of the room. This is the night time incident V.K. testified about. This incident at night occurred when Mary Comer was not at home. F.J. told Graham that on one occasion James Comer removed F.J.'s clothes when she came out of the bathroom after blocking the door to prohibit F.J.'s exit. F.J. expressed concern to Graham that "Dada" was going to turn from doing things to F.J. to doing things to V.K.. F.J. told Graham that she had reported James Comer's actions to Mary Comer in saying that she told "Granny". F.J. stated to Graham that when F. J. told Mary Comer, she, (Mary Comer) said, "If you tell anyone, you will have to leave". F.J. made the remarks about James Comer's inappropriate conduct approximately thirty times to Graham and was consistent about the facts reported. The remarks by F.J. on the video tape and to Mims, Gipple and Graham which have been recited concerning James Comer are credited as true. Following the accusations about James Comer's sexual misconduct directed to F.J., Petitioner through its employees, Esther Tibbs and Judy Parks, met the Respondents on February 5, 1996 to advise Respondents that Petitioner intended to revoke the foster care license. The grounds for seeking revocation were related to the sexual misconduct by James Comer and the use of corporal punishment in disciplining the foster children. In the past, commencing 1988, Petitioner had received complaints concerning the use of corporal punishment by Respondents in disciplining their foster care children. Petitioner through its employees had counseled Respondents about the inappropriateness of corporal punishment. In one instance correspondence was sent to the Respondents on this subject reminding the Respondents that it was inappropriate to use corporal punishment even to the extent of an "occasional slap on the backside. . .under any circumstances". This reminder was sent through correspondence dated March 25, 1993. In 1988, unrelated to the foster children who have been referred to in these facts, Pamela Davis, Guardian Ad Litem for A.L. spoke to James Comer concerning his administration of corporal punishment to that child. James Comer told Davis that he had beaten the child "to beat the devil out of her" and it hadn't worked. He further stated that Davis could take the child from his home. Davis did remove the child from foster care provided by Respondents. On February 12, 1996 Respondents requested a formal administrative hearing to contest the grounds for revoking their foster home license.
Recommendation Based on the facts found and the conclusions of law reached, it is, RECOMMENDED: that a Final Order be entered which denies the renewal of the Family Foster Home License for Respondents. DONE and ENTERED this 5th day of July, 1996, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of July, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 96-0943 The following discussion is given concerning proposed facts by the Petitioner: Paragraphs 1-5 are subordinate to facts found. Paragraph 6 is not necessary to the resolution of the dispute. Paragraphs 7 & 8 are subordinate to facts found with the exception that the fourth sentence is not supported by competent evidence in the record, nor are paragraphs 9 and 10. Paragraph 11 is subordinate to facts found. Paragraph 12 in the first sentence is subordinate to facts found. The last sentence to paragraph 12 and paragraph 13 are not necessary to the resolution of the dispute. Paragraph 14 is discussed in the evidentiary ruling under Section 90.803(23), Florida Statutes. Paragraph 15 is subordinate to facts found with exception that the next to last sentence in the reference that on the second occasion "Granny" had gone somewhere is not supported by competent evidence in the record. Paragraphs 16-18 are subordinate to facts found. Paragraph 19 is not supported by competent evidence in the record. Paragraphs 20 and 21 are subordinate to facts found with the exception that the reference to "they" in paragraph 21 should be "she". The first and the third sentence to paragraph 22 are not supported by the record. The second sentence is subordinate to facts found. Paragraph 23 is not supported by the record. Paragraphs 24 and 25 with the exception of the last phrase to paragraph 25 are subordinate to facts found. The last phrase to paragraph 25 is not supported by the record. Paragraph 26 is subordinate to facts found with the exception of the reference to October 10, 1988, which is not supported by competent evidence in the record. Paragraphs 27-29 are not necessary to the resolution of the dispute. Paragraph 30 is subordinate to facts found with the exception of the reference to November 26, 1995 which is not supported by evidence in the record. Paragraph 31 is not necessary to the resolution of the dispute. The second paragraph 29 is subordinate to facts found. COPIES FURNISHED: Lucy Goddard, Esquire Department of Health and Rehabilitative Services 1000 Northeast 16th Avenue, Box 3 Gainesville, Florida 32601 James and Mary Comer, pro se Post Office Box 722 Micanopy, Florida 32667 Gregory D. Venz, Agency Clerk Department of Health and Rehabilitative Services Building 2, Suite 204X 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard Doran General Counsel Department of Health and Rehabilitative Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether Petitioner’s application for licensure as a foster home should be granted.
Findings Of Fact The Department is the state agency responsible for licensure of foster homes. In carrying out its licensure duties, the Department contracts some license processing functions to FamiliesFirst Network. In turn, FamiliesFirst subcontracts with Children’s Home Society to perform a variety of license processing functions. In this case, Children’s Home Society was the organization that initially reviewed Petitioner’s 2007 licensure application. In 1984, prior to her employment with the Department, Petitioner married a man in the military. Petitioner testified that the marriage was one of convenience for both parties and, while legal, was not a true marriage since the marriage was never consummated. Petitioner’s explanation regarding the benefit each got from the marriage was vague. In essence, Petitioner characterized her marriage as a way for her to get out of financial difficulty. She testified that a soldier approached her and offered to pay her bills if she would marry him so that he could live off base. However, Petitioner legally divorced her husband in 1988 when she learned that he had contracted AIDS. Since at least 1997, Petitioner was employed by the Department. At some point, she was employed as an Economic Self-Sufficiency Specialist I (ESSI). As an ESSI, Petitioner generally handled applications for food stamps and interviewed clients to determine eligibility for food stamps, Medicaid and cash assistance benefits. In 1999, while employed with the Department, Petitioner applied for licensure as a foster home. On the initial licensing application in 1999, Petitioner wrote in the marital history section, “I am single and have never been married.” On the foster family self-study, Petitioner left her marital history blank. Furthermore, Petitioner marked “n/a” for ‘not applicable’ in the section regarding her divorce. That information was incorporated in the initial licensing study compiled by Children’s Home Society on April 28, 1999. Clearly, the statements made by Petitioner in her 1999 application and the information she provided to the Department during the application process were false since she had been married and divorced. Petitioner also completed a licensure self-study form in April 2001. In the sections regarding her marital history, Petitioner marked “n/a” for ‘not applicable,’ incorrectly indicating that she had never been married or, in some manner, the section on marriage did not apply to her. Again, the information was false. In another licensure self-study in September 2001, Petitioner left her marital history blank. Similarly, Petitioner left the marital history section blank on a personal profile form completed by her in 2001. That document was updated in 2003 and the marital history section was again left blank. In March 2003, Petitioner again marked “n/a” in the marital history section of a licensure self-study form. At about the same time, Petitioner also completed a questionnaire as part of the home-study process performed by FamiliesFirst Network. One of the questions called for a box to be checked as to how a previous marriage ended. Petitioner did not check any of the answers or indicate that she had been divorced. The lack of response is particularly troubling since Petitioner had indicated at least once that she had not been married, at least twice that the marital history sections on various forms did not apply to her based on her rationalization that the marriage had never been consummated, and at least once that the divorce history section did not apply to her. However, Petitioner knew that she had been legally married and legally divorced. Indeed, the fact of her divorce was not affected by the lack of consummation of the marriage; her ostensible rationale for not recognizing her marriage was from a religious point of view. These misrepresentations were material to the review of her fitness for licensure. Finally, in her 2005 application, Petitioner did indicate to the person who was processing her application that she was married. The provision of the correct information by Petitioner in 2005 occurred after the processor inquired and pursued questions about Petitioner’s marital history and does not mitigate Petitioner’s past multiple misrepresentations regarding her marital and divorce history. At hearing, Petitioner acknowledged that she provided inconsistent information about her prior marriage. She was concerned that her marriage was coming back to haunt her. She stated, “I didn’t know that it was going to come back and bite me.” However, such concern does not mitigate the fact that Petitioner failed, on multiple occasions, to disclose her divorce and marriage to the Department. As indicated above, Petitioner was also employed by the Department during the time she was seeking licensure as a foster home. Unfortunately, throughout the time that Petitioner was employed, she developed a very troubled relationship with the Department and, in particular, with Katie George, the Department’s General Counsel. Petitioner’s difficulty with the Department resulted in several legal cases against the Department in which Ms. George represented the Department. These cases extended over a five-year period. The cases involved two small claims cases requesting reimbursement for sodas and copying costs that arose out of five other litigations before the Public Employees Relations Commission. The two small-claims lawsuits seeking reimbursement for out-of-pocket expenses, including sodas and photocopies, were dismissed by the Court. The evidence demonstrated that Petitioner was terminated twice by the Department. Petitioner contested her first dismissal before the Public Employees Relations Commission. Petitioner’s first dismissal was overturned by the Public Employees Relations Commission on a legal technicality. The Commission specifically noted that they neither condoned nor agreed with malfeasance in office but had to grant a double- jeopardy type exception since the Department had originally suspended Petitioner for malfeasance in office and then attempted to increase the discipline it had imposed to dismissal of Petitioner. Petitioner was reinstated to her position by the Commission and back pay was ordered. As part of the back-pay case with the Public Employees Relations Commission, the Petitioner was denied reimbursement for private cash advances and private auto insurance expenses that she claimed the Department owed to her as part of her wages. Petitioner’s second termination was for conduct unbecoming a public employee and involved outrageous and bizarre behavior towards a client of the Department who had applied for Medicaid and food stamps. During the incident Petitioner berated, belittled and treated the client so poorly that he was reduced to tears and would not return for food stamps when it was time to renew the same. The client prayed with Petitioner inside her office. The client described Petitioner as chanting and acting so strangely that he abruptly ended the prayer by saying “amen.” Additionally, Petitioner told the client that she understood how he felt and that the Department was out to terminate her because some of her co-workers thought she was crazy. She also told the client the Department had tried, but failed, to terminate her before. The client eventually filed a complaint with the Department regarding Petitioner and her behavior during the interview with the client. Later, Petitioner called the client at his unlisted phone number that she could only have obtained through Departmental records and tried to intimidate the client into changing his complaint or not testifying. Based on this incident and some other incidents regarding Petitioner’s work, the Department dismissed Petitioner a second time. Petitioner, again, contested her dismissal before the Public Employees Relations Commission. The dismissal was upheld by all the Courts who heard the case and eventual appeals. The nature of the litigation and the eventual outcome are illustrated in the Public Employees Relations Commission Hearing Officer’s Recommended Order dated February 10, 2003; the Public Employees Relations Commission Final Order dated March 17, 2003; the per curiam affirmed opinion of the First District Court of Appeal dated February 18, 2004; the Order of the First District Court of Appeal denying rehearing dated April 5, 2004, and the Order of the Supreme Court of Florida dismissing review dated May 19, 2004. In addition, Petitioner filed a federal employment discrimination lawsuit against the Department. The suit was based, in part, on her earlier termination. During the course of the federal litigation, depositions were taken. During those depositions, Ms. George learned that Petitioner had falsified her application with the Department because she had previous jobs from which she had been fired that were not listed on the application. However, the Department was represented by outside risk counsel, who negotiated a $5,000.00 settlement payment to Petitioner. The settlement was accepted by the Department based on the nuisance value of continued litigation of the case. The Department did not admit any discriminatory action towards Petitioner in its termination of her. At some point after her second termination, Petitioner visited Ms. George’s legal office at the Department. Petitioner visited the office to either pick up or deliver some papers. However, testimony was not clear on the exact nature of the visit and what occurred during Petitioner’s visit. Testimony did establish that Petitioner became disruptive in the office towards Ms. George’s legal staff. Petitioner was asked to leave and initially refused. Eventually, Petitioner left the office after Ms. George instructed her staff to call law enforcement. Petitioner also filed a complaint with the Florida Bar regarding Ms. George’s representation of her client. The Bar complaint against Ms. George was dismissed by the Florida Bar. Finally, during this proceeding, Petitioner accused Ms. George of sending law enforcement to Petitioner’s house. Ms. George did not take such action against Petitioner. Given all of these incidents, Petitioner’s troubled employment history and litigation with the Department, the evidence demonstrated that, in the past, Petitioner has not worked cooperatively with the Department and seems to have developed a difficult and suspicious relationship with it. Based on this history, the evidence did not demonstrate that Petitioner could, presently or in the future, work cooperatively with the Department as a foster parent. The 2007 application was reviewed by Nicola Spear. Ms. Spear works in the licensing section of FamiliesFirst Network. She compiled the November 2007 foster parent licensing home-study on Petitioner. After reviewing the application and completing the home-study, Ms. Spear recommended that Petitioner’s license application be granted by the Department. Ms. Spear was unaware of the Petitioner’s history regarding the Department or her prior statements regarding her marriage and divorce. She subsequently learned the reasons why Petitioner was terminated from her employment with the Department, including inappropriate client interactions. Once the Department learned of Petitioner’s application and the initial recommendation of Ms. Spear, either Ms. George or administrative staff called a meeting with its contractors and Ms. Spear to review the recommendation and provide information regarding Petitioner’s history with the Department. After receiving the information, Ms. Spear changed her recommendation and recommended that Petitioner not be licensed as a foster parent. Ms. Spear testified that while Petitioner was very cooperative during the licensure process, she was concerned that Petitioner might not be able to work cooperatively with the Department or its contracted partners. Mary Martin, a licensing specialist with the Department, received Petitioner’s licensing packet from Ms. Spear. Ms. Martin was made aware that Petitioner had been dismissed from the Department, had a history of difficulties with the Department and of Petitioner’s lack of candor regarding her marriage and divorce. Ms. Martin also learned from Ms. Oakes, a contractor for the Department, that in 2002, Ms. Oakes had instructed her staff to call law enforcement to a visitation between foster children and their parent because Petitioner wanted to participate in the court-ordered closed visit and would not leave the visitation site at Children’s Home Society. However, the contractor who supplied this information did not witness the incident. The person who was present during the alleged incident did not testify at the hearing and all the testimony regarding the incident was based on hearsay. Additionally, Petitioner was not aware that law enforcement had been called since Petitioner voluntarily left the visitation before the police arrived. Given the hearsay nature of the facts surrounding the visitation incident, the incident cannot provide a basis for denial of Petitioner’s application. On the other hand, Ms. Martin found Ms. Peagler hostile to work with during the interview process with her. Ms. Martin did not feel that Petitioner could work cooperatively with the Department and could not be trusted to provide accurate information to the Department. She recommended denial of Petitioner’s 2007 application. Ultimately, Petitioner’s foster home application was denied on February 18, 2008. The basis for denial was her false statements, her history with the Department, and her intolerance and inflexibility with the Department. Currently, Petitioner is self-employed as a provider of services to persons with developmental disabilities. She is licensed through the Agency for Persons with Disabilities (APD). There was no evidence that Petitioner had difficulty working with APD. The evidence also did not show that Petitioner had a long and troubled relationship with APD or that APD was aware of Petitioner’s misrepresentations regarding her marriage and divorce. Robin Woods Reshard testified generally about her friendship with Petitioner. Although she works with school-age children, she never worked with or for the Department. Ms. Reshard primarily knows Petitioner through their Church. She speaks highly of Petitioner, although finds her to be stubborn, at times. She thinks Petitioner would make an excellent foster parent. However, given the facts of this case regarding Petitioner’s multiple litigations with the Department, her general suspiciousness regarding the Department and its personnel, her misrepresentations regarding her marriage and divorce, and her mistreatment of a client of the Department, her good work with APD and Ms. Reshard’s recommendation do not demonstrate that Petitioner can now work cooperatively with the Department or can be trusted by the Department to be honest with it in fostering children. Both of these qualities are necessary for successful licensure as a foster home. Therefore, Petitioner’s application for licensure as a foster home should be denied.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services enter a Final Order denying the application of Robin Peagler for foster home licensure. DONE AND ENTERED this 4th day of December, 2008, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of December, 2008. COPIES FURNISHED: Eric D. Schurger, Esquire Department of Children and Family Services 160 Governmental Center, Suite 601 Pensacola, Florida 32501-5734 Robin Peagler 1011 West Chase Street Pensacola, Florida 32501 Gregory Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 George Sheldon, Interim Secretary Department of Children and Family Services Building 1, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John J. Copelan, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue to be resolved in this proceeding concerns whether the Petitioners have been guilty of violation of pertinent statutes and rules governing qualification and capability to hold a foster home license and to operate a foster home, in this case a "therapeutic foster home" and, if so, whether their application for renewal of licensure should be denied.
Findings Of Fact The above-named Petitioners were licensed as operators of a therapeutic foster home and as therapeutic foster parents. Due to an alleged abuse report, they became involved in a revocation proceeding with the Department concerning their previously-held license. Upon advice by personnel with Camelot, Inc. (Camelot), a private provider which provides services to the Department for therapeutic foster care, by contract, they voluntarily relinquished their previous license on February 6, 2006, in the belief that they would still be entitled to a formal proceeding to contest that the alleged abuse occurred, and their licensure entitlement. The Department declined to afford them a hearing on the issue, and they appealed to the District Court of Appeal for the First District. The Department was upheld. They then applied for a renewal of their therapeutic foster care license on August 10, 2006, for Lake County, Florida. An evaluation of the application was launched by the Department and ultimately the Department issued a denial of the license application. A timely request for an administrative proceeding to contest denial of that license was filed by the Giegers. The license denial was based initially upon the Department's determination that the Giegers had allegedly inappropriately punished children in their home and that they had some sort of business interest or income interest in being licensed foster parents, purportedly a violation of foster parenting rules. Sometime thereafter a supplemental basis for denial was served upon them by the Department wherein the Department alleged that the Petitioners had also violated Section 409.175(4) and (12)(a), Florida Statutes (2006), because they had a child placed in their home through a guardianship agreement that had not been approved by a court and were therefore acting as an unlicensed foster home. A response to that supplemental denial notice was made by the Petitioners. Therapeutic foster parents are trained to provide for children with difficult behavioral problems. The Giegers received this training and remained in compliance with the training updates and continued education necessary in order to continue their licensure in good standing. In addition to this, Mrs. Geiger is a trained mental health specialist, with a master's degree, who works for Lifestreams, a mental health provider, providing services to disturbed children. The Giegers were previously affiliated, as therapeutic foster parents, with the private provider, Camelot, which provides services to the Department for therapeutic foster care. They were licensed as therapeutic foster parents at that time, and accepted a number of severely disturbed children into their home over the years while they were affiliated with Camelot. When a foster parent has a child placed in their home, Camelot has a therapeutic system whereby a therapist is assigned to that child and is available for consultation at any time of day. If the primary therapist is unavailable, the supervisor of that therapist is available for consultation. Camelot's therapeutic personnel and various mental health professionals have been frequently in the Giegers' home to consult, monitor, and assist with the care and therapy of foster children placed there. A number of those therapeutic personnel testified. They established that the Giegers are excellent parents who have provided exemplary care to the foster children placed in their home. These people have training in mental health and related fields. Some hold master's degrees and have been trained to recognize abuse or evidence of it. Some are psychologists, specifically assigned as the mental health professional working with particular children placed in the Giegers' home. In 2005, a child, J.D., was placed in the Giegers' home by the Department. In addition to J.D., there were other children in the home, including Tyler, a non-foster care child placed privately by Camelot with the Giegers, as well as the Giegers' own adopted son. All of the children in the home had been abused prior to their placement with the Giegers. J.D.'s previous situation before coming to the Giegers' home was particularly egregious. He had been starved, locked in a closet, had his fingernails removed by his parents and otherwise was the victim of severe parental abuse before coming into foster care. His was a case of high public notoriety and appears to have been thus treated with a heightened level of attention by the Department, as compared to the case of other children. When J.D. arrived at the Giegers' home after his initial rescue from his earlier situation, he purportedly weighed 58 pounds and was only 4 feet 8 inches tall, at the age of 17 years. During the time he resided with the Giegers, he grew several inches and gained almost 80 pounds due to the care given him by the Giegers. He was placed on special vitamins and formula, in addition to his regular meals, in order to restore him to appropriate physical condition. Because of his physical condition, extra efforts were made by the Petitioners to assure his safety. They even placed him in a private school because they felt he would be at risk attending a large public high school, which he would otherwise have been required to attend. J.D. did well at the Giegers' home initially and it was planned for him to remain in their home after he reached 18 years of age, if he continued to adjust favorably to being a member of their family. He began "acting out" more severely, however, with problematic behaviors. Ultimately it was determined by both the Giegers and Camelot that he should not remain in their home after he turned 18 because of the adverse impact he was having on other children residing in the home. Before the determination was made that J.D. would not remain in the Giegers' home after he reached 18 years of age, the Department had praised the Petitioners' care of J.D. After that decision was made, an attorney for the Department suggested to Mrs. Gieger that she be hired by the Department to provide special services to J.D. Apparently there was a funding problem with regard to continuing J.D. in private school, and this was suggested as a means of funding the private school. Mrs. Gieger, however, did not feel this funding was appropriate because she was already being paid by Camelot for these services, and expressed this to the attorney, she therefore declined that offer. In December 2005 the Department decided to have J.D. re-evaluated by his original evaluator, a psychologist, Dr. Dykel. During his meeting with Dr. Dykel, J.D. apparently told Dr. Dykel that the Giegers had cursed in his presence and in the presence of other children, used racially derogatory language concerning Black children in the foster childrens' presence and that Mrs. Gieger had sat on him as a means of restraint or punishment. He also stated that he was being deprived of food. This meeting occurred on a Friday afternoon. After the meeting J.D. returned to the Giegers' home and made statements about what he had said to Dr. Dykel. Initially the Petitioners thought nothing about the statements, but on the following Tuesday an abuse report was called in indicating that the Giegers had inappropriately punished J.D. in the manner he had related to Dr. Dykel. The child Tyler, who had been placed in the Giegers' home was a child who suffered from severe mental health issues. He had been placed privately with Camelot by his father. He had set his father's and step-mother's bed on fire the previous Christmas because he did not receive a toy, a "PS2," that he asked to be given him for Christmas. There was testimony that he was told by J.D. that if he would make a statement against the Giegers to the Department that he would get the PS2 toy that he wanted. He was taken by Erica Summerfield, an investigator assigned by the Department to the case concerning the abuse report, to the "Child Advocacy Center," for a statement. He apparently made such a statement, of the above import, but then recanted it. Nonetheless, based only on the statement made by J.D. and by Tyler, Erica Summerfield made a determination that the abuse report should be determined to be "founded." As a result of her report (and apparently a past history of abuse reports concerning the Giegers' foster care facility, none of which had been proven to be "founded"), Camelot apparently suggested to the Giegers that they voluntarily relinquish their license, purportedly telling them that they would still have the ability to challenge the abuse report through a Chapter 120 hearing. They sought to obtain a Chapter 120 hearing and the Department denied their request. An appeal ensued and the denial by the Department was affirmed by the District Court of Appeal. During the pendency of that appeal, the Giegers filed an application to renew their license, which was denied. This proceeding ensued after that denial, when the Giegers requested a formal proceeding. The Department offered the testimony of Erica Summerfield who was a child protective investigator assigned to the investigation. She was the supervisor of the person who interviewed J.D. and Tyler, apparently the only sources of investigative information leading to her finding that abuse had occurred. Ms. Summerfield testified that her concerns about the Giegers led her to make a report finding that abuse had occurred because alarms had been placed on the bedroom doors of childrens' bedrooms in the Giegers home; that the Giegers had used excessive restraint against J.D. (allegedly held him on the floor and lay on him or sat on him); and that J.D. had been mentally injured by the Giegers and not provided with sufficient food. She also opined that Mrs. Gieger had made inappropriate statements to J.D. None of these purported findings are supported by credible evidence. Initially it is found that J.D.'s and Tyler statements to the interviewer, who then apparently related them to Ms. Summerfield, constitute, at best, "second-hand" hearsay. Neither the interviewer nor J.D., nor Tyler testified at the hearing, and Tyler later recanted his statements made to the interviewer. The Respondent's exhibits two, three, and four, the interview reports, were offered into evidence and were only admitted regarding a basis for the Department's course of conduct in the matter, but not for the truth of any facts depicted on the face of those exhibits. Concerning the alleged complaint, related to the interviewer, regarding lack of food, the credible persuasive evidence shows that J.D. actually grew several inches after being placed with the Giegers, even though doctors had opined that he would not grow much, if at all, because of the starvation that had occurred early in his life. He also gained substantial weight while being cared for by the Giegers, so that he essentially looked like a normal child by the time he left their care. He had been emaciated when he came to the Giegers' care and had been described as looking like a "concentration camp victim." He was described as being far smaller than a child of his age when he came to the Giegers' care, but seven months later appeared to be essentially a normal child in physical appearance. The evidence, in fact, clearly supports the determination that the Giegers did provide J.D. with appropriate nutrition during their care of him. The basis for the alleged abuse regarding his not being properly fed is simply not credible. The Giegers had also been accused by J.D. or Tyler, or both, with using inappropriate language, racial slurs and cursing in J.D.'s presence, purportedly causing him mental harm. However, mental health experts present in the Giegers' home on a weekly and almost daily basis had never heard any inappropriate language, including any inappropriate racial language or inappropriate cursing in the childrens' presence during their visits to the Giegers' home. Many of these visits were unannounced. Two of the counselors or mental health professionals often present in the home were African-American. They found no evidence of racial tension or racially derogatory language being used by the Giegers or in the Giegers' home. It was their belief that the Giegers did not exhibit any behavior which suggested racism. Further, there were no Black children placed in the Giegers' home during the time that J.D. was there. There is simply no credible evidence to support any finding that inappropriate language was used by Mr. or Mrs. Gieger in J.D.'s or other childrens' presence, of a racially derogatory nature or otherwise. Part of the basis for the abuse finding (and the reason for license denial) was excess restraint or "sitting on" J.D. as punishment. This position was based on the statements of the two children, J.D. and Tyler. One of them, Tyler, tearfully recanted his story shortly after he made the statement. Erica Summerfield testifying for the Department, admitted in her testimony that she was aware of his recantation. She also admitted that Tyler's parents had asked her more than once to allow him to be placed back in the Giegers' home. They also had disclosed to her that he had a habit of making inappropriate statements and lying. There is evidence that J.D. had told him that he would receive a toy he wanted very much if he would make a statement to the Department that J.D. had been abused by the Giegers. Most importantly, J.D. had identified the point in time when Ms. Gieger was supposed to have sat on him as during an occasion when he broke a window at the house. Other mental health providers who were in the home around that time reported never seeing any bruise marks or other evidence of injury to J.D. or at any other time. They also reported that Mrs. Gieger was especially careful of his safety because of the seriously debilitated condition of his body. Most importantly, however, during the time that the window was broken by J.D. and he was severely acting out, Mrs. Gieger was on the phone with a professional from Camelot who was helping her to calm or "de-escalate" J.D. and who remained on the phone with Mrs. Gieger during the entire incident. That expert heard nothing which indicated that Mrs. Gieger had sat on the child or in anyway inappropriately restrained him. Mrs. Gieger denied using physical restraints on the foster children at the hearing. The Department maintains, however, that in two prior reports discussed in Camelot's letter, report 1999-127436 and 2002-007021, the Giegers had admitted restraining foster children. In the 1999 incident the child purportedly sustained rug burns on the face while being restrained on the floor by Mr. Gieger. These reports are at best second-hand hearsay. Moreover, they are not reasons of which the Petitioners were provided notice, as part of the basis for the denial of their licensure application which triggered this proceeding. Moreover, both of those incidents were immediately reported by the Giegers themselves to the Department and, ironically, the Department did not see fit to make any determination at the time, or since, that those incidents amounted to abuse. No finding was made that those alleged incidents were "founded" abuse episodes. Moreover, the Department relies upon an incident where Mrs. Gieger purportedly stated that she used force against J.D. when he tried to grab her neck. She purportedly told Ms. Summerfield in an interview that she gave J.D. a "therapeutic bear hug" by grabbing his arm and turning him around. He fell to the floor as a result. Parenthetically, not even the Department claims that she forced him to the floor. Mrs. Gieger's testimony at hearing concerning this event was to the effect that she grabbed J.D.'s wrist in order to prevent him from striking her or grabbing her neck and that he just collapsed to the floor. The Department then maintains that foster parents are not permitted to use such "force" on foster children, such as grabbing J.D.'s wrist, because it equates this to the use of corporal punishment and that grabbing a child's arm or wrist could "traumatize" an already vulnerable foster child. Mrs. Gieger's testimony, however, indicates that the use of "therapeutic bear hug," even if it occurred, is part of an approved method of training which she had, which is designed to safely manage children who are acting out in a potentially dangerous way, until they can calm down. She testified that Camelot, the Department's contracting agent, had approved this training for her. Moreover, when a foster parent is in danger of attack by a 17-year-old, even a somewhat debilitated child, who threatened striking or grabbing the foster parent by neck or throat, to grab his arm or wrist to prevent such conduct is reasonable and does not constitute unreasonable restraint. Assuming this event occurred, to characterize the grabbing of a child's wrist, to prevent injury or potential injury to a foster parent or another, as excessive force or "corporal punishment" is nonsensical. There is no credible, persuasive evidence that either Mr. or Mrs. Gieger engaged in any excessive force or restraint amounting to abuse. A concern was raised by Dr. Dykle, the psychologist, who was fearful of the fact that alarms had been placed on childrens' rooms in the foster home. Ms. Summerfield based her finding that abuse had occurred, in part, on the report that the alarms had been placed on the doors of some of the childrens' rooms. Ms. Summerfield, however, admitted in her testimony that alarms are often and routinely placed on childrens' rooms in therapeutic foster care homes. The mental health experts who testified clearly established that in every therapeutic foster home such alarms must be placed on bedroom doors because of a safety concern for other children. Children who are placed in this type of home are often serious safety risks for themselves or for other children. They have often been found themselves to be perpetrators of inappropriate or violent conduct. Many times they are children who have been sexually abused and have themselves become sexual perpetrators. In fact, there was a child in the Giegers' home at the time J.D. was there who had set his parents' bed on fire because he did not get a desired toy for Christmas. Dr. Dykle's apparent grave concern about alarms being placed on the childrens' bedroom doors is surprising since it appears to be completely contrary to generally accepted, safe practice for therapeutic foster homes, something that he should have been aware of if he is indeed an expert in child abuse issues. Ms. Summerfield admitted that she was aware that this was a virtually universal safety practice in therapeutic foster homes and yet, paradoxically, used it as a factor in support of her finding that abuse had occurred, as a basis of denial of re-licensure. Ms. Summerfield also admitted that she had spoken with Camelot professionals who assured her that the Giegers had been exemplary foster care parents. She acknowledged that J.D. had made untrue statements in the past about other foster placements. She admitted that the only evidence of improper restraint, or any kind of abuse or neglect in the home, was essentially predicated on the statements of the two children who did not testify in this proceeding. She conceded that one of them had recanted and she knew of this well before the hearing. Mental health experts from Camelot who testified, established that it is a very frequent event for foster children placed in therapeutic foster homes to act out and to make false statements and accusations concerning their care-givers. They also indicated that J.D. had made such false allegations in the past against other caregivers. This was all information that a thorough investigation would have made known to the Department, at the time it was making the determination that there was a basis for a finding of abuse. The only witness other than Ms. Summerfield, presented by the Department, was Amy Hammett, the licensing official who actually signed the letter denying the license application. She testified that she did not review all of the documents that made up the Giegers' license application. Some other department employee had been assigned to the case and it had been later transferred to Ms. Hammett before the final decision was made. She had reviewed five relevant forms, but nothing else. She had no evidence to support the Department's position that the Giegers had relied upon the foster care services they provided for income to support their own family, other than the fact that they had taken a legal position in the appeal from the previous attempt at a Chapter 120 proceeding, to the effect that they had something in the nature of a property interest in their foster care license. This may have been a necessary position to take in an attempt to establish jurisdiction or standing in that proceeding, but other than that, and one statement attributable to Mr. Gieger that there was an adverse financial effect on the Giegers related to that proceeding, it was not established that the Giegers were relying on the income from foster care services to support their family. Rather, in the context of that statement and the Giegers legal position during the course of their appeal, the reference was most likely made in the context that the hiring of an attorney, with related expense, in prosecuting the first case, including an appellate proceeding, caused an adverse financial effect, which is understandable. That does not constitute credible, persuasive evidence that the Giegers were relying upon foster care services as income to support their own family and themselves in violation of any Department rule. Mrs. Gieger, indeed, testified under oath that they did not rely upon foster care income to support their family. Her testimony and that of others showing that they have successfully operated a well- managed, licensed home for a substantial period of time, shows that the Petitioners are financially capable of operating safely and successfully under a new license. There is no persuasive evidence to the contrary. The greater weight of the credible evidence is persuasive in establishing that the Giegers provide quality therapeutic foster care and have not engaged in the abuse with which they are charged. Even J.D. expressed the desire to come back and live with the Giegers and, after he reached 18 years of age, he did so. This certainly does not support the existence of abuse. Moreover, Earnest Thomas, J.D.'s guardian ad litem established that the Giegers provided J.D. with excellent care. He was a frequent visitor in their home and paid close attention to J.D.'s well-being during times pertinent to this case. Further, the caseworker, Sheila Donato, was the person who took J.D. from the Giegers' home when he was removed by the Department. On this occasion she stated that he was tearful and crying when he left the Giegers' home and asked if he would be able to come back to their home for Christmas. There were no bruises or other evidence that he had been harmed in any way. She established that the fact that he returned to the Giegers home after he turned 18 years of age is evidence that he had never been abused while there. After the Giegers' foster care license had been relinquished voluntarily by them under the above-referenced circumstances, Tyler's parents executed "guardianship papers" placing Tyler in the custody or guardianship of the Giegers and they continue to allow Tyler to reside in their home. The Department maintains that this was an illegal placement because the Giegers were not a licensed foster care facility at that time and had not secured a court order allowing Tyler to be in their guardianship. The circumstances were, however, that Ms. Giegers' mother was the attorney who prepared the guardianship papers for the Giegers and for Tyler's parents to execute. She rendered an opinion to them that that was sufficient to justify allowing Tyler to remain in the Giegers' home. Ms. Gieger testified that she knew of other teachers and other individuals who had used similar documents to establish a basis to take custody of a child in their home. She believed that what she was doing was legal. There was no intent by her, or Mr. Gieger, to engage in any kind illegal custody, guardianship or circumvention of the foster care licensure requirements, or any other illegal act. There is no evidence that Tyler had been adjudicated dependent and subject to the custody of the Department.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Department of Children and Family Services granting a foster home license to the Petitioners, authorizing their operation as a therapeutic foster home. DONE AND ENTERED this 9th day of August, 2007, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 Clerk of the Division of Administrative Hearings this 9th day of August, 2007. COPIES FURNISHED: Jerri A. Blair, Esquire Lockett & Blair Post Office Box 130 Tavares, Florida 32778 Ralph J. McMurphy, Esquire Department of Children and Family Services 1601 West Gulf Atlantic Highway Wildwood, Florida 34785 Gregory Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John J. Copelan, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Robert A. Butterworth, Secretary Department of Children and Family Services Building 1, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
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.
The Issue Whether Petitioners' application for family foster home relicensure should be denied for the reasons set forth in the February 6, 2003, letter that Petitioners received from the Department of Children and Family Services (DCFS).
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Background Information Petitioners are husband and wife. They operated a licensed family foster home at their residence in Fort Lauderdale, Florida, for seven years until their most recent license expired. Among the foster children who were in Petitioners' home during the last of these seven years were T. G. and W. B. T. G. was placed in Petitioners' home on October 14, 2002, and was removed from the home on January 21, 2003. W. B. was placed in Petitioners' home on October 21, 2002, and was removed from the home on December 18, 2002. On November 24, 2002, Petitioners and DCFS executed a Bilateral Service Agreement (Agreement) as part of the family foster home licensing process. By signing the Agreement, which provided, in pertinent part, as follows, the Parents "agree[d] to abide by [its] terms": Purpose: The purpose of this Agreement is to identify the expectations for both foster parents and the Department of Children and Families on behalf of the children and families that are served in the foster care program. Note: for this agreement Department means Family Safety staff, Lead Agency Staff, Contract Case Management staff or Contract Licensing staff. This agreement reflects standards of care that are current requirements in Florida Administrative Code, which are based on statutory authority found in section 409.175, Florida Statutes. The premise of this agreement is that the department and foster parents must work as partners to assure safety, to provide for the physical and mental well being and to obtain permanency for each child. * * * Foster Parent Responsibilities to the child include: * * * e. To assist in setting up visits with the child's parent(s) or relatives. * * * To transport and accompany the child to medical, dental, mental health appointments and visits with parents and relatives. To provide the child his/her monthly spending allowance which is included in the board payment. To buy the child clothing . . . with the monthly board rate and clothing allowance . . . . * * * m. To adhere to the department's safety and discipline policies, see Attachment A. Failure to comply with the department's safety and discipline policies may result in the removal of children from the home. * * * To promote the following conditions for the child in the home: Opportunities and encouragement to communicate and have contact with family members, friends and other people important to the child. . . . Respect for the child's body, person, . . . . * * * 7. Provide the child with suitable clothing, [that] is appropriate for the weather, and appropriate for the age of the child. . . . Foster Parent Responsibilities to the department include: * * * j. To use the clothing allowance to buy the child clothes and shoes. * * * n. To allow the child to be removed from the foster home only by a department staff member, Guardian ad Litem, or another party granted permission by the department of the court. To verify the identi[t]y and authority of staff and other parties when not known to the foster parent. * * * p. To know where and with whom the child is staying and the type of supervision the child is receiving when foster parents approve an outing or overnight activity. Children may not remain in an unlicensed setting for any time other than a planned, supervised outing or overnight activity without the explicit approval of the department. * * * Non-compliance with any of the above provisions may result in administrative action by the Department, which could include corrective action, suspension, revocation or denial of further licensure pursuant to Chapter 120, Florida Statutes. Attachment A to the Agreement set forth the following "Discipline Policies," among others: The foster parents must discipline children with kindness, consistency, and understanding, and with the purpose of helping the child develop responsibility with self-control. * * * 3. Foster parents must use positive methods of discipline, including the following: * * * (IV) Grounding, restricting the child to the house or yard, or sending the child out of the room and away from the family activity; * * * The foster parents must not subject children to cruel, severe, humiliating or unusual punishment . . . . The foster parents must not use corporal punishment of any kind. * * * 11. The foster parents must not deny a child contact or visits with his family as punishment. * * * Alleged Violation of Rule 65C-13.010(1)(b)6.b., Florida Administrative Code There were occasions when Petitioners refused, without adequate justification, to take T. G. to scheduled doctor's appointments. On these occasions, T. G.'s DCFS case worker, Khalilah Dawes, had to take T. G. to the doctor so he would not miss his appointments. The morning of December 19, 2002, T. G. became ill at school (Lauderdale Manors Elementary School, where he was a kindergarten student). At around 10:00 a.m., he went to the school office, where he spoke to Monica Marshall, the school secretary. There was no school nurse at the school that day to care for T. G. Ms. Marshall, therefore, telephoned Mrs. Jenkins, told Mrs. Jenkins that T. G. was ill, and requested that Mrs. Jenkins come by school to pick T. G. up, which Mrs. Jenkins agreed to do. By 12:30 p.m., however, Mrs. Jenkins had not yet arrived at school. Ms. Marshall, therefore, telephoned Mrs. Jenkins again. During this second telephone conversation, Mrs. Jenkins told Ms. Marshall that, if she (Mrs. Jenkins) was not at school by the end of the school day, Ms. Marshall should just let T. G. walk across the street to the after-school program in which he was enrolled. Mrs. Jenkins did not pick T. G. up at any time during the regular school day.3 Alleged Violation of Rule 65C-13.010(1)(b)9.b., c., and d., Florida Administrative Code There were occasions when foster children in Petitioners' care, including T. G., did not go on school field trips because the children did not have money to pay for these trips. It is unclear from the evidentiary record, however, why, on these occasions, the children did not have the money they needed to go on the trips.4 Petitioners purchased school uniforms for the foster children in their care. The record evidence is insufficient to support a finding that "[o]ne of the teachers purchased the school uniforms for the foster children." Mrs. Jenkins, on occasion, did come to Lauderdale Manors Elementary School to talk with school personnel about her foster children attending the school (although, in her dealings with the school's principal, Doris Bennett, Mrs. Jenkins was, at times, "loud and boisterous," displaying a "negative and nasty attitude"). Neither Mrs. Jenkins nor her husband, however, attended "report card night" at the school last year. This was a "well-attended" event, held after school (between 6:00 p.m. and 8:00 p.m.), where parents had an opportunity to receive their children's report cards from their children's teachers. It is unclear from the evidentiary record why Petitioners were not in attendance. Alleged Violation of Rules 65C-13.010(1)(b)5.a. and 65C- 13.010(1)(b)5.f., Florida Administrative Code The record evidence is insufficient to support a finding that "Mrs. Jenkins pinche[d] T. G." or "ma[d]e[] him stand in the laundry room when he [was] bad."5 Alleged Violation of Rule 65C-13.010(2)(b), Florida Administrative Code Ann Livermore is employed as a case worker by Kids in Distress, Inc., a private entity that has contracted with DCFS to provide care case worker services to foster children supervised by DCFS. Ms. Livermore was W. B.'s case worker during the 2002 Thanksgiving holiday period. W. B.'s sister had obtained a court order allowing W. B. to go on an unsupervised visit to W. B.'s sister's home on Thanksgiving Day 2002. W. B. had not had any previous unsupervised visits with his sister during his time with Petitioners. At no time prior to Thanksgiving Day 2002 had Mrs. Jenkins had any contact with either Ms. Livermore or W. B.'s sister. At 9:00 a.m. on Thanksgiving Day 2002, Ms. Livermore received a telephone call from W. B.'s sister, who complained to Ms. Livermore that Mrs. Jenkins would not let her take W. B. from Petitioners' home. Ms. Livermore responded by telephoning Mrs. Jenkins and explaining to her that W. B. was "allowed to go with" his sister pursuant to a court order that had been obtained by the sister. Mrs. Jenkins responded that she was not aware of any court order and that, if Ms. Livermore intended to come to Petitioners' home to pick up W. B., she should bring with her appropriate identification, as well as be accompanied by the police. As Mrs. Jenkins credibly explained at the final hearing, she did not know what Ms. Livermore "looked like" and, with all the "phony stuff going on," wanted to make sure that W. B. would not fall into the wrong hands. Later that same day, Ms. Livermore, accompanied by the police, went to Petitioners' home. She took with her, to show Mrs. Jenkins, a copy of the court order W. B.'s sister had obtained. Mrs. Jenkins gave Ms. Livermore a difficult time, questioning the adequacy of Ms. Livermore's proof of identification and the authenticity of the copy of the court order that Ms. Livermore showed her. While Mrs. Jenkins may have been overly cautious in her dealings with Ms. Livermore, it does not appear that she was acting in bad faith. Ultimately, W. B. was released to the custody of Ms. Livermore, who turned W. B. over to his sister.6
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that, pursuant Section 409.175(9), Florida Statutes, DCFS enter a final order denying Petitioners' application for family foster home relicensure, based on the rule violation alleged in section A. of the notice of intent to deny. DONE AND ENTERED this 30th day of June, 2003, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of June, 2003.
