Findings Of Fact Respondent, Margaret Speer (Speer), received her initial foster care license from Petitioner, Department of Health and Rehabilitative Services (HRS), on March 18, 1991. Speer resided at 1501 Windorah Way, West Palm Beach, Florida 33411, on that date. On March 18, 1992, HRS renewed Speer's foster care license. At that time Speer was living at 992 Whipporwill Way, West Palm Beach, Florida. On April 14, 1992, after moving to 12212-3 Sagharbor Court, Wellington, Florida, Speer received a foster home license for the new address. In October 1992, Speer received a foster home license for her residence at 129 Gregory Road, West Palm Beach, Florida. In June or July of 1992, Speer moved to 5380 Gene Circle, West Palm Beach, Florida. HRS never issued a foster home license to Speer at this address and the residence was not inspected by the local health department. In September 1993, Speer moved to 738 Carissa Drive, Royal Palm Beach, Florida 33411. On October 18, 1993, the Health Department inspected Speer's home at 783 Carissa Drive, Royal Palm Beach, Florida 33411, and found it to be unsatisfactory for use as a foster home for children. Speer moved to 4852-C Orleans Circle, West Palm Beach, Florida. She received a foster home license for that residence on October 31, 1993. At the date of the final hearing, Speer was living at 515 North 10th Street, Lake Worth, Florida. It is important that foster children have stability in their lives, including the location of their residence. Speer's frequent changes of residence could have a detrimental effect on the foster children in her care as noted by an HRS children and families counselor who visited Speer's homes over 17 times from June 1992 to October 1993.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Margaret Speer's application for renewal of her foster care license. DONE AND ENTERED this 9th day of August, 1995, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of August, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-1769 To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Paragraphs 1-9: Accepted in substance. Paragraph 10: Rejected as not necessary. Paragraph 11: Accepted in substance. Paragraph 12: Rejected as subordinate to the facts found. Respondent's Proposed Findings of Fact. Respondent's letter did not delineate findings of fact and conclusions of law. Paragraphs 1-2: Rejected as subordinate to the facts found. Paragraph 3: Rejected as constituting argument. COPIES FURNISHED: Catherine M. Linton Assistant District Legal Counsel Department of Health and Rehabilitative Services 111 South Sapodilla West Palm Beach, Florida 33401 Margaret Speer 515 North 10th Street Lake Worth, Florida 33460 Robert L. Powell, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Kim Tucker General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether 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)
The Issue Whether the Agency for Persons with Disabilities (APD) properly denied the application for licensure renewal sought for the group home facility license held by Tracy Court Group Home, owned and operated by V-Agape, LLC.
Findings Of Fact Petitioner is the state agency charged with regulating the licensing and operation of foster care facilities, group home facilities, and residential habitation centers pursuant to section 20.197 and chapter 393, Florida Statutes. At all times material to this complaint, Respondent held foster or group home facility licenses issued by APD. The current group home license issued for V-Agape, LLC, located at 19103 Tracy Court, Lutz, Florida 33548, is owned by Tonya Nelson, the sole managing member. Respondent has contracted with APD to provide the residents with Medicaid waiver developmental disability residential habitation services. HCSO conducts investigations of reports of abuse, neglect, abandonment, and threats of harm to children on behalf of DCF. Investigations of abuse, neglect, abandonment, and threats of harm are initiated by reported incidents through the Florida Abuse Hotline. Karen Gonzalez is the supervisor of the Specialized Investigating Unit. She supervises the CPIs who perform the abuse hotline investigations. Ms. Gonzalez supervised Robert Hoon and Jennifer Campbell, both CPIs. A report was made to the Florida Abuse Hotline on January 24, 2014, that a minor female resident of Respondent’s Tracy Court Group Home sustained bruising and a red mark on the back of her hand from being struck on her hands by Tonya Nelson. The resident is non-verbal and intellectually disabled. The subsequent investigation by CPI Hoon, on behalf of DCF, was ultimately closed with verified indicators for physical injury upon the minor resident living in the Tracy Court Group Home, but did not identify the caregiver responsible. CPI Hoon reviewed and discussed the investigation with Supervisor Gonzalez before he prepared the Investigative Summary (IS). When conducting investigations, the CPI reviews the prior history of incidents reported on a group home and its owner/operator. In subsection “D. Prior Reports and Service Records Implications for Child Safety,” CPI Hoon reported that: There are prior reports on the facility that include concerns for physical discipline in the foster home and to her o[w]n children. There is a verified report in 2012 for physical injury and the aps [adult perpetrators] where [sic] Tonya Nelson and the aunt as it is unknown who caused the injuries. Ms. Gonzalez testified that prior reports are reviewed in conducting their investigations to determine whether a pattern of concern for the health and safety of the children placed in that home and for the caretakers caring for the children in the home exists. The CPIs utilize DCF Operating Procedure (CFOP) 175-28, Child Maltreatment Index, as a guideline in conducting their investigations. A “verified finding” is made when a preponderance of the credible evidence results in a determination that the specific harm or threat of harm was the result of abuse, abandonment, or neglect. CPI Campbell explained the application of CFOP during an investigation: [I]t . . . breaks down the different maltreatments that are investigated under the umbrella of abuse, neglect, and abandonment, and it provides a guideline for the definitions of what the different maltreatments are, and the different types of supporting evidence and documents that may be needed when supporting a maltreatment when the investigator comes up with the findings. It’s basically a guideline for investigations, because when a report comes in it may not be just one maltreatment, there may be a number of different maltreatments; or an investigator may identify a maltreatment during the course of an investigation, and so this provides a guideline for the investigator. On May 20, 2014, a report was made to the Florida Abuse Hotline about a minor resident of Respondent’s Tracy Court Group Home. An investigation was commenced concerning unexplained bruises observed on the resident, a vulnerable minor. CPI Campbell completed the investigation and prepared the IS. She discussed the verified findings with Supervisor Gonzalez. CPI Campbell is an experienced investigator, having had 11 years of service with HCSO following five years’ experience as a CPI in Michigan. The report of May 20, 2014, was a “Supplemental” report since, according to Supervisor Gonzalez, it came in right after the initial risk sequence. Rather than creating an entire new report, this one became supplemental to the prior one. The IS stated that the resident had a large bruise on her left thigh and bruises on her left arm and the back of her leg. Ms. Nelson was not able to explain how the minor resident sustained the bruises on her leg and arm. CPI Campbell became involved with Ms. Nelson and the investigation of the group home when Supervisor Gonzalez gave her the task of completing the investigation initiated by CPI Krisita Edwards. At the time CPI Campbell took over the investigation, CPI Edwards had been assigned to other duties. CPI Campbell explained that it was not unusual for a second investigator to complete work begun by another since all their notes are kept on a central database known as the Florida Safe Families Network (FSFN), where all contacts are noted, as well as the investigative summary. CPIs Edwards and Campbell collaborated on the investigation in this case. CPI Edwards entered her initial findings in the FSFN, which was picked up and continued by CPI Campbell when she took over the case. The two CPIs have collaborated on other cases in a similar fashion. The initial documentation by CPI Edwards was performed within 48 hours of the call coming into the abuse hotline as required. CPI Campbell’s completion of the report and investigation occurred after she had spoken with CPI Edwards and discussed the matter with Supervisor Gonzalez. The result of the investigation concerning the bruises on the minor resident was that the bruises were “indeterminate for physical abuse” and “indeterminate for supervisory neglect” due to the fact that a specific cause of the injuries could not be determined. Further, since the minor resident had been removed to another group home, the report concluded that there existed no continuing threat to the resident’s well-being. Even though the resident had been removed from the Tracy Court Group Home and, therefore, was not in any danger of being further harmed, CPI Campbell continued to have serious concerns about the care of residents in the group home. She believed that several allegations of the same type of harm were being made in the group home and that they could not ask the resident how she received her injuries since she was non-verbal. Myra Leitold, an APD residential licensing supervisor, had monitored the Tracy Court Group Home for the previous nine and one-half years. On December 28, 2012, she observed that a door lock to the office and bedroom was keyed so that it could be readily opened from the inside which, she believed, created a safety hazard. Between December 2012 and August 2014, the group home was cited for ten violations of Medication Administration Procedures. On one of her visits, in December 2012, Ms. Leitold noted that no current prescription was present for one of the residents, and that the label on the prescription bottle did not match the prescription drugs inside the bottle. Additionally, she found that the accounting for one of the resident’s finances was not current and that the temperature inside the group home was a chilly 65 degrees Fahrenheit. Mitchell Turner, human services program specialist for APD, recorded numerous medication administration violations at the group home. He noted on May 30, 2013, that the medication prescriptions and instructions for the Medical Administration Record (MAR) did not match. On June 18, 2013, he discovered that the wrong dosage of prescription was being given to a resident, and Ms. Nelson admitted this mistake. Mr. Turner grew so concerned about the prescription irregularities that he requested Pamela Lassiter, a medical case management registered nurse, to review the group home. Nurse Lassiter was sent to the home where she discovered and cited the home for three additional prescription violations. Even following Nurse Lassiter’s visit, on another trip to the group home on April 9, 2014, Mr. Turner cited an additional MAR violation. He believed these violations posed a health and safety risk to the residents affected and exhibited a pattern of neglect by Respondent to the health and safety of vulnerable children. During the period when prescription and other violations were noted, on January 11, 2013, Ms. Nelson exceeded the maximum licensed capacity of three in the group home when she accepted a fourth resident. She did not have prior written approval from APD to exceed her licensed capacity of residents. On September 25, 2013, Mr. Turner issued a Notice of Non-Compliance (NNC) because Ms. Nelson again exceeded the licensed capacity for the number of residents in the group home without prior written approval from APD. Mr. Turner expressed his concerns over the repeated violations by Respondent. Ms. Nelson testified that she had received verbal approval for the placements in excess of the home’s licensed capacity from Meisha Stewart, residential placement coordinator for APD, and that on a prior occasion in 2012, she had accepted a resident after receiving verbal approval. This testimony was rebutted by both Geraldine Williams, the former regional operations manager for APD’s Suncoast Region, and Ms. Leitold, who testified she had never known APD to give verbal approval for a placement of a resident in a group home. With the high volume of referrals APD makes to group homes, they cannot operate in a system where verbal placements occur. All placements must be made in writing. When a provider receives a NNC, the provider is required to submit and successfully complete a Corrective Action Plan (CAP). Mr. Turner testified that Ms. Nelson did not submit or successfully complete a CAP for the MAR violations. On January 17, 2013, Ms. Leitold visited the group home and observed the following violations: volatile materials were not stored in approved metal containers and three prescriptions for a resident’s medications were not present. The gasoline, charcoal, and lighter fluid found by Ms. Leitold were required to be stored in approved metal containers. Keeping these materials in the open posed a safety hazard for the minor residents by giving them access to volatile materials. On November 4, 2014, Ms. Nelson sent an email to Meisha Stewart advising her she intended to accept a non-APD client for placement in the Tracy Court Group Home without APD’s prior approval. Ms. Nelson testified that since that same resident had been placed in the Tracy Court Group Home for a six-month period in 2013, she believed she did not need a new approval in 2014.
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 denying V-Agape, LLC, d/b/a Tracy Court Group Home’s application for license renewal. DONE AND ENTERED this 6th day of November, 2015, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 6th day of November, 2015. COPIES FURNISHED: Brian F. McGrail, Esquire Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) Lindsey Ann West, Esquire The Plante Law Group, PLC 806 North Armenia Avenue Tampa, Florida 33609 (eServed) Gerald D. Siebens, Esquire Agency for Persons with Disabilities 1313 North Tampa Street, Suite 515 Tampa, Florida 33602-3328 (eServed) Barbara Palmer, Executive Director Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) Richard D. Tritschler, General Counsel Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) David De La Paz, Agency Clerk Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed)
The Issue As originally framed, the issue was whether respondents' foster home license should be revoked for alleged failure to cooperate with HRS policy and personnel.
Findings Of Fact As part of the settlement agreement, HRS abandoned any effort to prove the factual allegations which gave rise to these proceedings.
Recommendation It is, accordingly, RECOMMENDED: That HRS enter a final order rescinding its letter of July 10, 1991, to Mr. and Mrs. William Scarff, with the understandings and conditions recited above. DONE and ENTERED this 23 day of January, 1992, in Tallahassee, Florida. COPIES FURNISHED: Ralph J. McMurphy, Esquire 1000 NE 16th Avenue Gainesville, FL 32609 William and Mary Scarff 8281 Weeping Willow Street Brooksville, FL 34613 ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23 day of January, 1992. John Slye, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, FL 32399-0700 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, FL 32399-0700
The Issue Whether denial of Respondent's re-licensure application as a Foster Care Home for the reasons stated in the Department's denial letter of October 30, 2000, was appropriate.
Findings Of Fact Based upon observation of the witnesses and their demeanor while testifying, the documentary materials received in evidence and the entire record complied herein, the following relevant facts are found: Under Section 409.175, Florida Statutes (2001), the Department of Children and Family Services is the State Agency responsible for evaluating, qualifying, licensing, and regulating family foster care homes. Petitioner, a single male, previously employed with an abused children agency in Broward County, Florida, was granted a foster care parent license by the DCF's Foster Care Licensing unit effective August 10, 1999, through November 10, 1999. A second child specific foster home license for G.K. was issued to Petitioner, effective from March 3, 2000, through August 10, 2000. DCF takes the position that Petitioner is not eligible for re-licensure as a family foster home primarily because he exhibited "poor judgment" relative to a single medical treatment, taking the temperature of an eleven-year-old male foster child through his rectum during the month of August 2000. DCF further alleges that Petitioner has willfully violated specific statutes and rules relating to the conduct and maintenance of the foster home. Those alleged violations are specified in the licensure denial letter dated October 30, 2000, from the DCF to Petitioner. Nicara Daniels is a foster care licensing unit worker with the DCF since November 1999. Ms. Daniels had on-the-job- training and some Professional Development Center Training for new employees. In the licensing unit, Ms. Daniels had training in physical abuse, sexual abuse, drug abuse, and emotional abuse toward children. The DCF used Ms. Daniels to provide testimony regarding each violation as they appeared in the letter of denial. Herein below the allegations are chronologically addressed. Medication and cooking wines in Petitioner's bathroom. On or about July 31, 2000, a period when Petitioner was licensed, Ms. Daniels, Child Protection Investigator assigned Petitioner, made an unannounced visit to Petitioner's home during a period when Petitioner was medicating himself. During her walk through Petitioner's bedroom she entered his bathroom and saw Petitioner's medication for his diabetes on the bathroom shelf along with several bottles of cooking wines. Ms. Daniels acknowledged that she observed the cooking wines in the bathroom. Along with bottles of medication she also observed the lock box in which Petitioner kept his medications and cooking wines when not in use. The door to Petitioner's bedroom and bathroom each had operative locks on them. Ms. Daniels knew that Petitioner took medication for his diabetic condition prior to this inspection and she acknowledged having no experience with the use of cooking wines. Rule 65C-13.011(14)(a) and (b), Florida Administrative Code, requires all medication, poisonous chemicals, and cleaning materials to be in a locked place and inaccessible to children, and that alcoholic beverages should be stored out of the reach of small children; with the recommendation that these beverages be kept in a locked place. Ms. Daniels admitted that for the children, all of whom were 11 years or older, to have access to the medication or cooking wines, they must enter the bedroom, go into the bathroom and open the lock box. There is no evidence presented of any foster care child having access to Petitioner's bedroom, bathroom or the locked medicine box at any time. In making the foregoing finding, I have considered Ms. Daniel's testimony that she knew Petitioner was on medication. Ms. Daniels, however, never questioned the children whether they entered or attempted to enter Petitioner's bedroom at any time when he was not present. I find the mere presence of medications and cooking wines in Petitioner's bathroom, absent other evidence, is not a violation of the cited rule. John Snider in Petitioner's Foster Care home. Ms. Daniels testified that during an early morning visit on an unspecified date in July of 2000, she observed a young man, John Snider, in Petitioner's home. After she advised Mr. Snider had to be screened, Petitioner followed the DCF's process and a screening application for Mr. Snider was submitted to the Department. The Department screened and cleared Mr. Snider and advised Petitioner and Mr. Snider by letter on August 21, 2000. Rule 65C-13.010(4)(g), Florida Administrative Code, requires that the foster care parent notify the department of the presence of such person. Rule 65C-13.007(1), Florida Administrative Code, requires screening for "all persons that provide respite care in the . . . home on an overnight basis must be screened." Rule 65C-13.009(6)(a)5., Florida Administrative Code, requires a criminal records check for "all persons 18 years and older residing in the . . . home." Petitioner, during a telephone conversation with Ms. Daniels on July 31, 2000, informed her that Broward Juvenile Justice placed Mr. Snider in his home on July 27, 2000. It is Ms. Daniels' opinion that a four-day period between entry and notifying DCF is not reasonable notification. This "unreasonable" delay formed the basis for violation of the cited rule, notwithstanding the particular circumstances. Rule 65C-13.007(1), Florida Administrative Code, which requires "all persons that provide respite care . . . must be screened.” I find Ms. Daniels' opinion that four days is not "reasonable" notification not based upon any protocol, policy or rule of the DCF. In making the foregoing finding, I have considered the following. Petitioner informed Ms. Daniels by telephone that there were matters to discuss; however, the discussion took place four days later when Ms. Daniels was available. The Department of Juvenile Justice for Broward County placed Mr. Snider in Petitioner's home. After submitting an application, Mr. Snider was screened and cleared by the DCF. Considering the evidence as a whole, I find Mr. Snider's presence in Petitioner's home, under authority of the Broward County Juvenile Justice unit, and with telephonic notice to the DCF's licensing unit worker four days after entry into the home is not unreasonable, under the circumstances. Home Department's placing of T.J. in Petitioner's Foster Sometime during the first week of August 2000, Robert Mistretta, Department's child protection investigator and T.J.'s initial case worker, removed T.J. from his family and sought overnight foster care for him. Mr. Mistretta, aware of T.J.'s family situation, his medical, physical, emotional, and sexually abusive history sought a foster care home with those factors in mind. The Department's placement unit instructed him to take T.J. to Petitioner's home for an overnight stay. Mr. Mistretta took T.J. to Petitioner's home with the intention of an overnight stay and reassessment of the situation the following morning. After discussion with Petitioner of T.J.'s need for an overnight stay, Petitioner agreed. Mr. Mistretta chose not to provide Petitioner with information regarding T.J.'s medical, social, physical, emotional, or abusive family history. However, Mistretta gave Petitioner the DCF's emergency pager phone number [570-3081] for use during non-working hours and for emergencies should the need arise. Rectal Temperature Taking What had begun as an overnight stay resulted in a permanent placement and on or about August 6 or 7, 2000, T.J. became ill. His illness began during the day and continuing into the night. According to Petitioner, T.J. exhibited symptoms of a cold or flu, including fever, chills and headache. During the night, he was restless, tossing and turning in his sleep. Petitioner, having no medical history on T.J., became concerned about T.J.'s condition. He made several calls to the Department's emergency pager number [570-3081] provided him by Bob Mistretta, without success. Petitioner then attempted to contact Dr. Stuart Grant, a pediatrician, to no avail. Petitioner thereafter attempted to use his MAPP training first aid guide provided by the Department, but found those instructions unclear. Petitioner then sought information concerning fever and temperature taking from the internet. During the night while T.J. was asleep, Petitioner used a rectal thermometer to take T.J.'s temperature, causing him to awaken suddenly, somewhat startled. Petitioner talked with T.J., explained his concerns with his condition and the reason for taking T.J.'s temperature in that fashion. T.J. responded in a positive manner and went back to sleep. The following morning, Petitioner contacted Mistretta and explained what had happened with T.J. the night before. Mistretta took T.J. aside and privately inquired if he understood "good" touching from and "bad" touching. T.J. stated he understood the difference. When asked about Petitioner's manner of touching him while taking his temperature during the night, T.J. affirmed that Petitioner's touching was a "good" touch and not a "bad" touch. Mistretta, based upon his experience working with children who had suffered abuse, accepted T.J.'s response as true. Satisfied that no "bad" touching occurred during the rectal temperature taking process, Mistretta reported the incident to his supervisor, including his conclusion that nothing sexually or abusive had occurred and concluded his report in part as follows: "This case is closed with no indicators. There is no maltreatment that addressed a bad choice of judgment by a caretaker. There are licensing [unit] concerns regarding Mr. Marlowe's choice to use a rectal thermometer on an 11 year old child." (Emphasis Added) Mr. Mistretta testified that his understanding of the sequence of events the night T.J. was ill were: T.J. was running a high fever and had trouble falling asleep. Petitioner tried cold cloths to reduce the fever that, according to Petitioner's monitoring, was getting too high. Since T.J. was having trouble sleeping and once he did sleep, Petitioner thought a rectal thermometer would be best to try not to awaken him, Petitioner chose to use that form of temperature taking. T.J. reacted with a little bit of pain. Based on Petitioner's history of dealing with sexually abused kids, that reaction is not normal. When Petitioner talked with him about what happened, T.J. disclosed his history to Petitioner. In the process of making the decision as to the appropriate treatment, Petitioner consulted with a Johnson and Johnson book and several medical web sites. The documents from the medical web sites were subsequently provided by Petitioner. I find Mr. Mistretta's testimony credible regarding his conversation with Petitioner immediately after the T.J.'s incident. Following the above, Ms. Mistretta, in addition to his duty as T.J.'s caseworker, was also assigned by his supervisor to investigate a hotline abuse report. Mr. Mistretta investigated the alleged abuse narrative report and found no indication of maltreatment. He recommended the hotline abuse report be closed. Upon being presented with the hotline abuse report narrative with suggestions and allegations of sexual abuse, Mr. Mistretta testified: "The information generated in this narrative in the reporter page that has reporter information states that the CPI, Robert Mistretta, told reporter about allegations. So the source of this report is me. The reporters made their own clarifications, answered their own questions regarding some things instead of calling me back to clarity, talked amongst themselves, found out that they didn't like what happened, and some of the narrative is not true. It is blown out of the water, if you would. The narrative was started by a report. When Mr. Marlowe talked to me, I talked to somebody who talked to somebody, who talked to somebody. The next thing you know we have sexual abuse. The narrative is not true. I did not agree with the removal of T.J. (Emphasis Added) I find Mr. Mistretta's testimony on this issue to be consistent and credible. In making the foregoing finding, I have considered the testimony of the DCF's other witnesses, none of whom had personal knowledge of the abuse report contents. However, Mr. Mistretta is the only witness with personal knowledge of events acquired in his positions as T.J.'s initial caseworker, his placement agent, the interviewer of T.J. and Petitioner, and the originator of the initial report. I have considered the fact that this incident occurred during the week of August 6-12, 2000. Petitioner's license expired on August 10, 2000. However, the DCF did not remove T.J. from Petitioner's home until September 6, 2000, almost a month later. I have also considered Ms. Daniels' testimony that during Petitioner's unlicensed period, DCF's placement unit continued to place children in Petitioner's home. I have also considered the deposition of Dr. Patricia Buck, M.D., pediatrician and Child Protection Team member for District 14 [Polk, Highland and Hardee counties], who was qualified as an expert in pediatrics and child abuse. After her review of documents provided by DCF and given the circumstances by DCF's counsel and Petitioner, Dr. Buck opined that use of a rectal thermometer would not have been her recommendation, had she been the care provider. According to Dr. Buck, anal temperature taking as a medical procedure is not abuse. Adding that the more medical history one has on a patient, the less likely a mistake in patient treatment. The evidence as a whole, including Mistretta's testimony and Dr. Buck's opinion, is persuasive as it relates to the issue of the circumstances and the "appropriateness" of the rectal temperature taking procedure. Accordingly, the testimony of Ms. Daniels, the licensing unit informs placement and other Department units of those parents who were licensed, parents who were not licensed or parents whose licenses had expired. She recalled attending the staffing meeting regarding the T.J. temperature incident and recalled informing staff that Petitioner was not a licensed foster care home after August 10, 2000. According to Ms. Daniels, placing children in a non-licensed home is not permissible. However, its her testimony that in this case, DCF's placement unit placed children in Petitioner's home during a period of time he was not licensed, and during the time T.J. was in Petitioner's home because of [DCF] "it being in a crisis situation with the number of homes we had." In making this finding, I have considered both the DCF's need for foster care beds and its concern for the safety of foster care children. I have also considered the DCF's use of Petitioner's home when they were "in a crisis situation with the number of homes we had." Screening of Ms. Scott Regarding the screening of Ms. Scott, Ms. Daniels testified Petitioner informed her that the screening application papers for Ms. Scott were submitted to the Department and had apparently come up missing. Ms. Daniels acknowledged that she had no evidence to support her conclusion that Ms. Scott was a respite sitter for Petitioner's foster care children; that she had never checked with the DCF to ascertain whether or not Ms. Scott had been screened. Not inquiring whether Ms. Scott had been screened renders Ms. Daniels' testimony questionable. I find Ms. Daniel's testimony regarding Petitioner's failure to provide the Department with Ms. Scott's application for screening not credible. Unwillingness to Provide Information on Mary Poe At some unspecified date, Ms. Daniels recalled she had a conversation with Petitioner regarding his next door neighbor, Ms. Poe, someone who would "check" on the foster children from time to time when Petitioner was late returning from work. Ms. Daniels did not recall if Ms. Poe entered Petitioner's home or gave the key to the children to enter in the home on days he was late returning from work. Ms. Daniels recalled only that, Petitioner's attitude regarding screening Ms. Poe was "uncooperative" and "defiant." During cross-examination Ms. Daniels could not recall the conversation with Petitioner when she was informed that Petitioner's condominium covenants required the manager to have a key to his apartment in case of emergencies. She did recall that Petitioner told her Ms. Poe was the mother of the condominium manager. Ms. Daniels recalled when she voiced concern with the situation Petitioner retrieved his key from Ms. Poe and returned it to the condominium manager for pick up by the children when they returned from school. I find Ms. Daniel's testimony regarding Petitioner's unwillingness to provide information concerning Mary Poe evasive, inconsistent and not credible. In making the foregone finding, I have considered Ms. Daniel's inability to recall facts, dates, times, places, regarding the matter to which she testified. I have considered the fact that Petitioner, when Ms. Daniels voiced concern, corrected the situation by removing the key from Ms. Poe's possession, thereby removing the need for screening by the Department. I have also considered Ms. Daniels' inability to recall facts regarding an incident the DCF considered an intentional refusal by Petitioner to "cooperate" and "communicate" with Department's staff. Confidentiality in Keeping a Life Book on Foster Care Children Ms. Daniels testified that Petitioner informed her the foster care children had a computer life book (photo album) website. After being directed to the website by Petitioner and after viewing the website, Ms. Daniels concluded Petitioner had "released" the names and photos of the foster children on the websites. Without providing a rational basis, she testified that keeping required foster child life books in an electronic format is, in and of itself, inappropriate. She further testified that placing the names and photos on the web site violated DCF's rule of confidentiality. Rule 65C.010(1)(c)4., Florida Administrative Code, requires the foster care parent to maintain the children's records which ensures confidentiality for the child and the biological parents. Petitioner maintained that each child made an individual and personal decision to use the computers he made available in his home. To his knowledge each child placed his personal information, name, foster care status, photos, etc., on the web sites during chats and exchange of information with others users in various chat-room conversations. Ms. Daniels never inquired of the foster children whose names and status were found on the book of life web sites to ascertain whether they or Petitioner placed personal information on the web site. I find her testimony on this issue to be questionable, but reliable. In making the foregoing findings, I have considered Ms. Daniels' testimony and the absence of evidence in support thereof. I find Petitioner's testimony that he never divulged any confidential information on the web sites regarding foster children in his care credible, but not persuasive. As the custodial parent, Petitioner has the ultimate responsibility to maintain and protect the confidentiality of the children in his care and under his supervision. Permitting children of divulge personal/confidential and potentially endangering information on the web site is a breach of Petitioner's parental responsibility. Removal of G.K. from medication prescribed by a Doctor DCF alleged that Petitioner removed G.K. from prescribed medication in violation of Rule 65C-13.010(1)(b)7.a, Florida Administrative Code, which imposes on the foster parent the responsibility for dispensing the medication as prescribed by the physician and recording the exact amount prescribed. In support of this allegation, the Department offered the testimony of Ms. Daniels. Ms. Daniels, by her admission, had no personal knowledge regarding G.K. and Petitioner's actions with G.K.'s medication. Her testimony was based upon what she had previously read in the file prepared by Stephanie Gardner, DCF's Representative and Petitioner's caseworker before the case reassignment to Ms. Daniels. When Ms. Daniels initially inquired of Petitioner about G.K.'s medication, he informed her that before he discontinued G.K.'s medication, he consulted with a nurse who in turn consulted with the prescribing doctor about the matter. Based on the response received from this consultation he discontinued G.K.'s psychotropic medication. Ms. Daniels based her conclusion of unauthorized discontinuance of medication on her conversations with Ray Mallette, a Department mental health counselor. In his letter to Petitioner, Mr. Mallette stated, in pertinent part: "To my knowledge, G.K. was not taking any psychotropic medication while under my care. Treatment was terminated in June of 1999, by mutual agreement, as no further care needed." Ms. Daniels testified that during her conversations with Mr. Mallette she recalled his stating that he did not authorize discontinuation of G.K.'s medication. Ms. Daniels could not state with any certainty if Mr. Mallette's use of the term "medication" included psychotropic medications or other medications. Petitioner provided Ms. Daniels the name of the Broward County physician with whom Petitioner had conferred through his nurse and who authorized taking G.K. off medication. There is no evidence that Ms. Daniels attempted to verify whether the medical persons provided by Petitioner had given instructions to take G.K. off psychotropic medications. I find Ms. Daniels' testimony on the issue of G.K.'s medication to be incomplete, confused and, not creditable. In making the foregoing finding, I have considered Mr. Mallette's letter reflecting that he is not a medical doctor or dentist; therefore, he cannot prescribe nor discontinue a prescribed medication to a patient. I. Use of profanity and general unwillingness to work cooperatively with the Department Rule 65C-13.010(1)(c)1., Florida Administrative Code, requires foster care parents to "work" cooperatively with the counselor as a member of a treatment team in seeking counseling, participating in consultation, and preparing and implementing the performance agreement or permanent placement plan for each child. In support of the above allegations, the DCF offered only the testimony of Ms. Daniels who stated: ". . . [A]lso during a conversation Mr. Marlowe used profanity. As far as [sic] concerned as just being uncooperative and maybe someone being uncooperative meaning there's something else behind it as far as, you know, not one to follow the rules that are set by the Department." I find the above testimony of Ms. Daniels to be vague and questionable. In making the foregoing finding, I have taken into consideration the fact that Ms. Daniels could not recall the date, time, place, words, or the circumstances of her conversation with Petitioner in which the alleged profanity was uttered. I have also taken into consideration the testimony of Ms. Stephanie Gardner, regarding Petitioner's uncooperativeness. Ms. Gardner, acknowledging that she did not know, did not remember nor did she recall; then went on to state: " . . . that at some unknown time and date, Petitioner stated, mentioned or indicated some information about a child or foster child that he had parented before. I don't know if it was Gary or one of the children that were actually at the Broward County at the Outreach Broward facility where he worked, but it was some information, and it was kind of alarming." I find the testimony of Ms. Daniels and the testimony of Ms. Gardner regarding the alleged profanity and regarding alleged uncooperativeness of Petitioner with the DCF questionable. Excluding the foregone evidence, other testimony regarding Petitioner and his conduct addressing matters that are related to those specific issues raised in DCF's denial letter of October 30, 2000, is neither material nor relevant to issues under consideration in this cause and disregarded.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is
The Issue Whether Respondent's licenses to operate two group homes should be renewed, or whether renewal should be denied for the reasons charged in the administrative complaints issued by Petitioner.
Findings Of Fact APD is the state agency charged with licensing and regulating group home facilities. The statewide headquarters, or "central office," is in Tallahassee. Regional offices carry out the licensing and regulatory functions within their designated regions, or "areas," in coordination with the central office. APD Area 14 covers Polk, Hardee, and Highlands Counties. Beginning in 2007 and at all times material to this proceeding, HIOTW has been a provider of various residential and non-residential services to developmentally disabled persons in Lakeland, Polk County, Florida, within APD Area 14. In 2007, HIOTW was licensed by the Agency for Health Care Administration (AHCA) to provide non-residential homemaker and companion care services. In November 2008, HIOTW became licensed by the APD Area 14 office to operate Paces Trail Group Home to provide residential habilitation services to developmentally disabled adults. Shortly thereafter, HIOTW was licensed by the APD Area 14 office to operate its second group home, Hampton Group Home. HIOTW was licensed by the APD Area 14 office to operate Timbergreen in May 2009. In February 2010, the APD Area 14 office issued a license to HIOTW to operate its fourth group home in Lakeland--Lake Miriam. The group home license renewal of these two group homes, each with a capacity to serve six adult male residents with developmental disabilities, is at issue in this proceeding. After initial licensure of a group home, the license must be renewed annually. All of HIOTW's group homes successfully have gone through the license renewal process one or more times, except for Lake Miriam, which is seeking its first license renewal. On November 12, 2010, HIOTW submitted an application to the APD Area 14 office to renew its license to operate Lake Miriam. On March 3, 2011, HIOTW submitted an application to renew its license to operate Timbergreen. By letter dated March 25, 2011, Petitioner denied the Lake Miriam license renewal application (March 25 Denial Letter). Petitioner relies on the following charges alleged in the March 25 Denial Letter as the basis for Petitioner's decision: On or about April 14, 2010, an employee of the applicant left two vulnerable adult group home residents alone in a car for at least ten minutes while that employee conducted business inside a bank. One of the adult residents who was left unsupervised in the car had a history of sexually molesting children and other vulnerable adults. The other resident who was left unsupervised in the car was non-verbal. This instance threatened the health, safety, and well being of the applicant's residents in violation of page A-8 of the Developmental Disabilities Waiver Services Coverage and Limitations Handbook and Rule 65G-2.012(15)(b), F.A.C. On or about September 29, 2010, an employee of the applicant was transporting group home residents when one of the residents left the vehicle without the driver's knowledge. The vulnerable adult resident was later located at a neighborhood store. This instance threatened the health, safety, and well being of the applicant's residents in violation of page A-8 of the Developmental Disabilities Waiver Services Coverage and Limitations Handbook and Rule 65G- 2.012(15)(b), F.A.C. The March 25 Denial Letter also alleged that HIOTW failed to submit a current approved emergency management plan as a third reason to deny the license renewal application. However, Petitioner abandoned the third charge at the outset of the final hearing. Petitioner sought to support its proposed denial of the Lake Miriam license renewal application solely as a penal measure based on the two alleged incidents quoted above. As such, but for these two alleged incidents, Petitioner acknowledges that Lake Miriam's license renewal application is otherwise entitled to approval. By letter dated April 29, 2011, Petitioner denied the Timbergreen license renewal application (April 29 Denial Letter). The April 29 Denial Letter set forth the same two charges that were alleged in the March 25 Denial Letter as the basis for Petitioner's decision. In other words, the same two incidents were asserted as grounds for denying both the Lake Miriam license renewal application and the Timbergreen license renewal application. But for these two incidents, Timbergreen's license renewal application, like Lake Miriam's application, is otherwise entitled to approval. First Alleged Incident (on or about April 14, 2010) The credible evidence established the following facts relevant to the first charged incident. In early April 2010, an employee of HIOTW's licensed companion care service, Frank Davis, was providing companion care to R.O., a developmentally disabled adult. R.O. was not a resident of any HIOTW group home. Instead, R.O. received only non-residential companion services through HIOTW from its employee Frank Davis. As previously noted, companion care services are licensed and regulated by a different agency, AHCA. R.O. was classified as developmentally disabled due to mild mental retardation and behavioral problems. R.O. had a history of sexually abusing children and vulnerable adults. R.O. also had a known tendency of "telling big whoppers," i.e., he was known to be a habitual liar. R.O. apparently told someone two stories of alleged incidents involving his companion, HIOTW employee Frank Davis. On April 14, 2010, the person to whom R.O. told the stories reported the two alleged incidents to the hotline operated by the Department of Children and Families (DCF), which fields reports of possible abuse or neglect.2/ One story told by R.O., as reported to DCF, was that Mr. Davis had left R.O. alone with Mr. Davis's three-year-old daughter. The other story told by R.O., as reported to DCF, was that Mr. Davis had left R.O. alone in a car with a non-verbal vulnerable adult for a period of time while Mr. Davis went into a bank to conduct some business. If true, these allegations of R.O. allegedly being left alone with a child in one instance and with a non-verbal vulnerable adult in the other instance would be of great concern. Both the child and the non-verbal vulnerable adult with whom R.O. was allegedly left alone would have to be considered at great risk of abuse by R.O., given R.O.'s known history of sexually abusing both children and vulnerable adults. With regard to R.O.'s first story, involving Mr. Davis's three-year-old daughter, a DCF adult protective investigator (API) was able to quickly determine that the allegation was completely baseless. In screening this allegation to determine if a formal investigation was warranted, the API spoke with R.O. and then with Samuel Cooper, one of the owners of HIOTW, on April 15, 2010, the day after the hotline call. Mr. Cooper provided a detailed description of the physical appearance of Frank Davis's daughter. When Mr. Cooper's description of Mr. Davis's daughter was compared to R.O.'s description of the girl with whom he was supposedly left alone, the two descriptions were so vastly different that the API was able to, and did, immediately determine that R.O. had fabricated the story, and the matter was closed without a formal investigation. The same API conducted an investigation of R.O.'s second story that he was left in Mr. Davis's car with a non-verbal vulnerable adult while Mr. Davis went into a bank. However, the API did not mention this story when he spoke with Mr. Cooper, nor did the API inform anyone from HIOTW that he was conducting a formal investigation. In conducting his investigation, the API spoke with R.O., twice with Mr. Davis, and with O.J. Bennett, another owner of HIOTW. HIOTW initially learned of R.O.'s story about the bank trip by a phone call from R.O.'s waiver support coordinator. Mr. Bennett immediately investigated the matter, speaking with Mr. Davis and also with the bank manager who was present and had personally observed the events that day. Mr. Bennett's report from his investigation was that when Mr. Davis drove up to the bank with R.O., he left R.O. in the car only to walk about nine feet from the car to the bank's glass entrance area. Mr. Davis signaled to a bank employee who came to the door. Mr. Davis told the employee he wanted to set up an account to make direct deposits of his paycheck. When Mr. Davis was told he would have to come into the bank and it would take a few minutes, Mr. Davis went back to the car for R.O. and brought him into the bank to wait while Mr. Davis set up the account. R.O. remained in Mr. Davis's sight at all times. Based on Mr. Bennett's report, which he reviewed with Mr. Cooper, HIOTW determined an unusual incident report (UIR) was not required, because there was no reason to suspect neglect of R.O. Several weeks later, when HIOTW learned from an APD employee that DCF was conducting a formal investigation, HIOTW submitted a UIR that set forth the details of Mr. Bennett's investigation and concluded that R.O. had been in Mr. Davis's sight and adequately supervised at all times. The APD Area 14 administrator confirmed in her testimony that if the facts were as Mr. Bennett found them to be in his investigation, there would not have been inadequate supervision, and there would have been no reason to submit a UIR. Of greatest significance with regard to R.O.'s story about the bank incident, the API determined that R.O. had lied about being left with a non-verbal vulnerable adult. Instead, the API found that Mr. Davis drove to a bank with R.O., and no one else, in the car. The DCF investigator's report summarized the differing versions of events told to him by R.O. and by Mr. Davis. R.O.'s version was that Mr. Davis left him in the car for the whole time that he went into the bank. Of course, R.O. also said that he was left with another adult, and that was not true. Therefore, R.O.'s statement to the DCF investigator could not be considered credible or reliable. According to the DCF investigator, Mr. Davis told him that he left R.O. alone in the car to go into the bank, but came back out of the bank to get R.O., who he then brought into the bank to wait while he conducted his business. However, Mr. Davis testified that he only told the DCF investigator that he walked up to the bank while R.O. was in the car. Mr. Davis's version of what happened and what he told the DCF investigator is more credible than the DCF investigator's report of what Mr. Davis told him. Mr. Davis's version was corroborated by the hearsay account of the bank manager, who told Mr. Bennett that Mr. Davis brought R.O. in the bank with him, only having left R.O. alone to walk up to the bank entrance. The bank manager confirmed Mr. Davis's testimony that R.O. was in Mr. Davis's sight at all times. In crediting Mr. Davis's version of events, corroborated by the bank manager, the undersigned finds it significant that Mr. Bennett told the DCF investigator about the bank manager eyewitness, and Mr. Bennett was under the impression that the DCF investigator would follow up by calling the bank manager. But the DCF investigator did not attempt to interview anyone at the bank, despite the fact that persons at the bank would have been the only other eyewitnesses besides Mr. Davis, who had a self-interest in the incident, and R.O., the habitual liar whose other story about Mr. Davis had been proven false. Petitioner did not undertake its own investigation of the facts, either at the time of the incident or at the time it was considering whether to rely on the incident as grounds to, in effect, revoke two of HIOTW's group home licenses. Instead, according to the area administrator for APD Area 14, Petitioner simply relied on the DCF investigation report. Indeed, the area administrator did not even seem to understand the DCF report, because at the hearing, she was adamant in her belief that DCF confirmed the allegation that Mr. Davis left R.O. in a car with a vulnerable non-verbal adult group home resident. The area administrator conveyed her misimpression to the central office in discussions to consider whether to non-renew two HIOTW group home licenses based on this incident. Ultimately at hearing, the area administrator conceded that she was improperly interpreting the DCF report, thinking that the allegation portion of the report contained the actual DCF findings. Even so, she steadfastly (and erroneously) asserted that she did not give any false information to the central office regarding HIOTW.3/ In addition to the misimpression conveyed about the R.O. incident, the area administrator testified that she had an employee convey numerous reports of allegations or suspicions of HIOTW improprieties to the central office in a single packet for the purpose of a decision on whether to renew the two HIOTW group home licenses. The area administrator explained other information about allegations and suspicions were sent in the same package so that the central office could also consider whether to terminate HIOTW's Medicaid waiver provider agreement at the same time. However, she admitted that the whole packet of material was sent for the purpose of review and a decision on whether to non-renew HIOTW's two group home licenses. As such, it would be difficult to ignore the extraneous allegations when making decisions regarding the license renewal applications, "[o]f course, you have all of that in your mind[.]" The actual transmittal package to the central office was not produced, apparently because it was sent by electronic mail, and there were some APD email system problems that got in the way of producing the email transmittal package. Nonetheless, the area administrator's description of what she believes was sent in a single package to the central office was sufficient to paint the picture of a litany of negative missives regarding HIOTW, intended, in part, to support the area administrator's recommendation to deny license renewal.4/ Petitioner did not allege in the administrative complaints and did not prove at the hearing that HIOTW itself was blameworthy for the R.O. incident. The APD Area 14 administrator testified that in recommending non-renewal of the two HIOTW group home licenses, a significant factor that she took into account was that HIOTW failed to promptly submit a UIR to report the R.O. incident. The facts found with respect to the R.O. incident do not demonstrate that a UIR was required. Moreover, HIOTW was not charged, in either administrative complaint, with a violation of its UIR reporting obligations. The DCF incident report concluded with a verified finding of inadequate supervision. The DCF investigator testified that it was his finding that "[p]rimarily, Mr. Davis was responsible for the inadequate supervision" of R.O. When asked whether HIOTW was also responsible as Mr. Davis's employer, the investigator said, "being his employer, and trainer, yes." However, neither the DCF investigator, nor Petitioner, presented any evidence to suggest that HIOTW was negligent in its hiring, training, or supervision of its companion care employees, generally, or Mr. Davis, in particular. Nor was there any evidence that HIOTW failed to appropriately respond to the R.O. incident once it was made aware of the incident. The DCF incident report found that Mr. Davis was an appropriately screened employee with no adverse history. Petitioner presented no evidence to the contrary. Both the DCF investigator and the area administrator for APD Area 14 concluded that HIOTW took appropriate action regarding the R.O. incident, by removing Mr. Davis from serving as R.O.'s companion and by putting Mr. Davis through additional "zero-tolerance" training. Mr. Davis's employment was terminated shortly thereafter for reasons unrelated to the R.O. incident. Although the DCF incident report verified a finding of inadequate supervision, the report concluded that the overall risk associated with the finding was low because of appropriate corrective action taken by HIOTW.5/ The area administrator for APD Area 14 candidly admitted at the final hearing that HIOTW handled the R.O. incident appropriately and took corrective action that was deemed sufficient by APD and alleviated any health and safety concerns. Inexplicably, she continued to support the charges in the two denial letters, which alleged that the R.O. incident "threatened the health, safety, and well being of the applicant's residents," because R.O., with his history of being sexually abusive, had allegedly been left alone with a vulnerable, non-verbal adult group home resident. Since the R.O. incident did not involve any HIOTW group home residents, but rather, involved non-residential services provided under HIOTW's companion care license, one would expect that if licensure disciplinary action was warranted against HIOTW at all for this incident, it would have been initiated by AHCA as the licensing agency for companion care services. No evidence was presented that AHCA took any disciplinary action against HIOTW's companion care license. Instead, the evidence established that HIOTW's companion care license remained in good standing as of the final hearing, more than one and one-half years after the R.O. incident. Notwithstanding APD's knowledge in June 2010 of the DCF report and findings regarding the R.O. incident, APD proceeded to renew annual licenses for the period of October 1, 2010, through September 30, 2011, for two other HIOTW group homes--Pace's Trail Group Home and Hampton Group Home. The license certificates state that the facilities comply with the licensure rules of APD. No evidence was presented that APD issued administrative complaints seeking to revoke these group homes' licenses; however, the area administrator made clear that she did not intend to renew any licenses for any HIOTW group homes in the future. Second Alleged Incident (on or about September 29, 2010) The facts regarding the second alleged incident involving HIOTW employee Donyell Goodman, were not disputed. At the time of the incident, Ms. Goodman had been employed by HIOTW for three years, with a very good, unblemished employee record. On the day in question, she was serving as a van driver to transport several HIOTW companion care clients to various sites within the local community. E.K. was one of those clients receiving companion care services that day; E.K. also was a resident of HIOTW's Lake Miriam Group Home. E.K. is developmentally disabled due to his diagnosis of mental retardation. Ms. Goodman stopped to let off one client, and she watched the client walk to the appropriate destination and go inside. She then resumed driving. When she had driven for about five minutes, she glanced in her rear view mirror and realized that E.K. was not there. Ms. Goodman immediately called LaDonna Bennett, the third owner of HIOTW, to report that E.K. must have snuck out of the van at her last stop, and she was going back to find him. Ms. Bennett also headed over to where Ms. Goodman said she had stopped, to assist. When Ms. Goodman returned to the site of her last stop, she found E.K. there, inside the corner store. E.K. was fine and returned to the van without incident. E.K. apparently admitted to sneaking out of the van, saying he just wanted some fresh air. The entire incident spanned about ten minutes. Ms. Bennett and Ms. Goodman both immediately prepared and submitted UIRs to report the incident. Ms. Goodman received a written reprimand in her HIOTW personnel file and was suspended for several days. When she resumed work, she underwent additional training, was removed from the van driver position, and reassigned to the "third shift" with no direct interaction with residents. The UIR reports triggered a DCF investigation. The AIP who conducted the investigation confirmed the facts that were set forth in the two UIRs. The AIP's investigation included an assessment of E.K. at the Lake Miriam Group Home where E.K. was a resident. The DCF incident report concluded as follows: Victim Safety Factors Implications: No implications for the [victim's] safety. [Perpetrator] Factors Implications: Based on the informaiton [sic] rec'd, API has determined the [adult perpetrator] to pose no threat to the [victim]. No implication [sic] for the [victim's] safety. Facility Factors Implications: Based on the [victim] to the grouphome [sic], API has determined the [victim] to not be at any risk. The API found that the overall safety assessment was low; however, based on the UIRs and interviews with Ms. Goodman and Ms. Bennett, the incident report concluded with a verified finding of inadequate supervision. The API who conducted the investigation testified at hearing and confirmed that the inadequate supervision finding was directed to Ms. Goodman. When asked if HIOTW was also responsible because it was Ms. Goodman's employer, the API said he did not know and could not answer that question. Petitioner did not allege in the administrative complaints, and did not prove at the hearing, that HIOTW itself was blameworthy for the E.K. incident. Neither the DCF investigator, nor Petitioner, offered any evidence that HIOTW had negligently hired, trained, or supervised its employees, including Ms. Goodman in particular. Both the DCF investigator and the APD Area 14 area administrator agreed that HIOTW acted appropriately in response to the E.K. incident to alleviate any concerns about health and safety, by imposing appropriate discipline against Ms. Goodman for her lapse that caused the incident, and by taking steps to ensure no reoccurrence of the incident. In 2011, well after APD had knowledge of the DCF reports and findings on both the R.O. and E.K. incidents, APD issued a series of temporary or conditional licenses to both Lake Miriam and Timbergreen during the license renewal process to give HIOTW time to respond to certain identified omissions in the renewal applications, such as dental records, fire inspection reports, and the like. The temporary and conditional license certificates issued in February and March 2011 state on their face that the facilities comply with the licensure rules of APD. According to the APD Area 14 administrator, each of the DCF reports on the R.O. and E.K. incidents resulted in "a verified abuse finding." The area administrator testified that any DCF report resulting in a verified abuse finding is classified as a Class I offense, which is the most serious class of offenses and is sufficient, without more, to give APD legal authority to deny licensure or renewal of a license to a licensed applicant named in the report. Yet, despite the verified finding regarding the R.O. incident, Petitioner did not deny license renewal applications for other HIOTW group homes. Despite the verified findings in both the R.O. and E.K. incidents, Petitioner issued temporary and conditional licenses to Timbergreen and Lake Miriam during the license renewal process. Thus, Petitioner has not exercised its discretion consistently in dealing with HIOTW. Petitioner has not exercised its discretion consistently in contexts far more egregious than the two incidents charged here. For example, Petitioner acknowledged that a recent incident of abuse and neglect, resulting in the death of a group home resident, did not trigger action by Petitioner to take away all of the group home licenses held by the licensee. Instead, Petitioner only acted to suspend the license of the specific group home where the deceased resident had resided. Petitioner did not attribute this very serious incident to all facilities licensed by the same entity. It would be unreasonable for APD to automatically, without discretion, equate all verified findings--whether of abuse or neglect, whether deemed low risk or high risk, whether risk of death or imminent bodily injury was found or not found. A protracted period of abuse or neglect that actually causes death of a group home resident is on a different plane, in terms of seriousness, from a brief employee lapse in which an individual is not caught when he sneaks away, but is recovered without harm or incident ten minutes later. No explanation was offered by Petitioner as to why, in the more serious situation where a verified incident resulted in death, action was not taken to revoke all group home licenses held by the licensee, whereas here, two incidents verified as low risk situations by DCF (one of which was not proven at the hearing), would cause Petitioner to act more harshly.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Agency for Persons with Disabilities, approving Respondent's applications to renew its annual licenses to operate Lake Miriam Group Home and Timbergreen Group Home and issuing standard licenses for one-year terms to those facilities. DONE AND ENTERED this 3rd day of February, 2012, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of February, 2012.
The Issue The issue in this case is whether Respondents' foster home license should be revoked for violating Florida Administrative Code Rule 65C-13.030(3).
Findings Of Fact The Department is the state agency responsible for foster care licensing, pursuant to section 409.175, Florida Statutes, and Florida Administrative Code Chapter 65C-13. Respondents are a mother, Mary Highsmith, and daughter, Dawndrell Martin, who reside together and obtained a joint license to provide foster care to children on November 16, 2017. On July 16, 2018, the Department’s Florida Abuse Hotline received an abuse report regarding B.H., a five-year-old female, who had been previously removed from her parents due to abuse, abandonment, or neglect and placed in the foster home of Respondents in November of 2017. The abuse report stated that B.H. had bruising on her back, face, and on top of her head. B.H. told the abuse reporter that “TT” had hit her with a brush or comb. “TT” was B.H.’s nickname for Ms. Martin. Daniel Henry, a child protective investigator with the Department, was assigned to investigate the abuse report. He interviewed B.H., who told him that Ms. Martin had punished her by hitting her with a comb, a switch, and a flip-flop and that Ms. Highsmith had repeatedly “thumped” her forehead with a flick of her finger. Mr. Henry interviewed the reporter of the abuse. He contacted local law enforcement to facilitate a joint investigation, contacted the Department’s licensing staff, and interviewed Respondents. Based on B.H.’s statements, Mr. Henry immediately referred the case to the CPT. The CPT is an independent entity created by statute and overseen by an interagency agreement between the Department of Children and Families and the Department of Health. Among other services, the CPT performs assessments that include medical evaluations, specialized clinical interviews, and forensic interviews. See § 39.303, Fla. Stat. In this case, B.H.’s physical injuries led the CPT to arrange a forensic interview and a medical evaluation of the child. Kimberly Dykes is an ARNP working for the CPT. She has undergone specialized training in child maltreatment, including the nature, origin, manifestations, and symptoms of abuse and injuries inflicted upon minor children. Her training included recognizing the difference between accidental and intentional injuries. Ms. Dykes performed a medical examination and interviewed B.H. about the cause of her injuries. Ms. Dykes concluded that B.H.’s wounds were consistent with inflicted injury, and were consistent with the causation described by the child as “having been repeatedly struck with a comb and a switch and having been repeatedly thumped in the forehead.” Ms. Dykes testified that she spoke with the investigator for the Jackson County Sheriff’s Office, Sergeant Cheree Edwards. Ms. Dykes stated that Sgt. Edwards provided her with the explanations that Respondents had offered for B.H.’s injuries. Ms. Dykes testified that she was able to medically rule out each of these explanations as lacking appropriate medical and testimonial support for their causation. Ms. Dykes further recommended that B.H. be removed from Respondents’ home and placed in alternate custody. Angela Griffin is a specialist with the CPT, who is certified to provide specialized clinical interviews and forensic interviews of minor children. Ms. Griffin conducted a forensic interview of B.H. Ms. Griffin testified as to the safeguards necessary to protect the integrity of the interview process with a child, such as building rapport, discussing the difference between telling the truth and telling a lie, and explaining the “rules of the room” to the child, including the fact that the interview will be recorded and that the child should make it known if she does not understand a question. Ms. Griffin stated that she employed all these safeguards during her interview with B.H. During her interview with Ms. Griffin, B.H. described how her injuries were inflicted. This description was consistent with the story B.H. told to the abuse reporter, to Mr. Henry, and to Ms. Dykes.1/ B.H. told Ms. Griffin that Ms. Martin had hit her on the head, in the face, and on the back with a comb, a switch, and a flip-flop, and that Ms. Highsmith had thumped her forehead. Upon concluding the forensic interview and medical evaluation, Ms. Griffin and Ms. Dykes provided recommendations for the care of B.H. They recommended that B.H. be removed immediately from the home of Respondents. They further recommended that any and all other children placed with Respondents be removed, and that no further children be placed with them. They recommended counseling for B.H. After concluding his investigation and consulting with the CPT, Mr. Henry verified the allegations of physical abuse by Ms. Martin. He recommended that Respondents’ foster home license be revoked and that no other children be allowed to reside with them. At the hearing, Sgt. Edwards testified as to the investigation she conducted for the Jackson County Sheriff’s Office. She stated that in cases of joint investigation by the Department and law enforcement, the CPT is critical in allowing a single point of contact with the minor victim. It is in the best interest of the child to avoid multiple and redundant interviews that could cause repeated trauma. Following the joint investigation protocol, Sgt. Edwards did not conduct her own interview of B.H., but observed the recording of Ms. Griffin’s interview with B.H. Sgt. Edwards also reviewed the notes made by Mr. Henry, the Department’s investigator. Sgt. Edwards interviewed Respondents and took repeated statements from them regarding possible origins of the injuries to B.H. She allowed Respondents to provide any and all evidence relevant to this matter. Sgt. Edwards testified that she contacted, or attempted to contact, every witness named by Respondents, including the day care teachers, and reviewed every piece of evidence presented by Respondents. During her investigation, Sgt. Edwards discovered a hair comb at Respondents’ residence. A photograph of the comb taken by law enforcement was presented as an exhibit in this proceeding. The photo shows a long-handled “rattail” comb. Sgt. Edwards determined this comb to match the item described by B.H. as the implement used by Ms. Martin to hit her on the head. Ms. Dykes testified that the comb showed in the photograph could easily have been the cause of the injuries to the top of B.H.’s head. Based on her independent investigation, Sgt. Edwards found probable cause to file criminal charges against Ms. Martin for inflicting injury on B.H. At the time of the hearing, the criminal case was still pending. At the hearing, the Department presented 13 photographs, taken by Ms. Griffin, of B.H.’s injuries. The photos detail multiple sources of trauma and bruising to B.H.’s face, head, back, eyes, neck, and scalp. None of the wounds appeared deep or serious, but did appear to be more severe than the usual bumps and bruises a parent expects from an active child. Ms. Dykes testified that the injuries in the photos were entirely consistent with B.H.’s statements that Ms. Martin caused them by hitting her with a comb, a switch, and a flip- flop. Respondents did not testify. Through cross- examination and argument, Respondents were able to put forward some of their explanations for the injuries to B.H. They contended both that B.H. is inclined to self-harm and that the injuries must have been inflicted at Caverns Learning Center, the day care facility that reported the injuries to the Florida Abuse Hotline. They contended that the child may have hit her head on a dresser while bouncing on her bed. They stated that B.H.’s skin had been rubbed raw by a seat belt. Her scalp injuries may have been caused by a harsh shampoo used to treat for lice, or by self-pulling of her hair, or by undiagnosed folliculitis. Ms. Highsmith theorized that the entire case was fabricated by authorities who did not like the fact that black foster parents were caring for white children. Respondents argued that Mr. Henry did not pursue other theories as to the cause of the injuries. For example, he took employees of Caverns Learning Center at their word when they told him B.H. was injured when she arrived at the day care on the morning of July 16, 2018. They also questioned why approximately two hours passed between B.H.’s arrival at the day care and the call to the Florida Abuse Hotline. Mr. Henry plausibly addressed both issues raised by Respondents. He testified that the Department bases its investigations on the identity of the alleged perpetrator. Because B.H. repeatedly and consistently identified Ms. Martin as the person who inflicted the injuries, Mr. Henry saw no reason to cast about for other suspects. Mr. Henry stated that he did not find it unusual for a busy day care to take a couple of hours to report to the abuse hotline. Respondents did not themselves testify on the advice of their criminal defense attorney. Respondents did present the testimony of their licensing specialist, Kristy Hancock, and a “courtesy” dependency case manager, Precious Ingram.2/ Ms. Hancock testified that she was the instructor for Respondents’ foster home licensing class. Respondents were “very engaged” during the seven weeks of coursework and seemed to understand the implications of being foster parents. Ms. Hancock stated that she had visited Respondents’ home and all seemed well.3/ Ms. Hancock also testified that she was aware of “issues” with Caverns Learning Center, but did not elaborate. Ms. Ingram testified that Respondents were cooperative with her when she made her monthly home visits. She observed nothing that would indicate abuse or neglect. She never saw marks on B.H. resembling those in the photographs introduced by the Department. Ms. Ingram stated that she saw nothing out of the ordinary in Respondents’ foster home and never had cause to raise concerns about the care of the children there. Jeanne Durden is employed by Big Bend Community Based Care (“BBCBC”) and is in charge of BBCBC’s licensing responsibilities. BBCBC is a contractor retained by the Department to provide foster care services in Circuits 2 and 14. BBCBC manages foster care licensing for the cited jurisdictions. Ms. Durden testified that it was her responsibility to provide quality assurance for all foster care licensing operations. BBCBC contracts with other entities to provide front line case management, and Ms. Durden provides oversight for those subcontractors. Ms. Durden testified that she removed all of the minor children from Respondents’ home immediately after reviewing the findings of the child protective investigator and the CPT. Ms. Durden also recommended immediate termination and revocation of Respondents’ foster home license. Ms. Durden explained that her recommendation was due to the nature and findings of the Department’s verified child protection abuse report as well as the criminal charges filed against Ms. Martin. She noted that Department rules do not permit corporal punishment of any kind for foster children, because of the traumas these children have already experienced. Ms. Durden did not believe that anything short of revocation was legally appropriate. She opined that mitigation was not possible based on the nature and cause of B.H.’s injuries. Regina Pleas is safety program manager for the Department’s Northwest Region. Among her duties is management of the Department’s licensing operations. BBCBC has the contractual responsibility to recruit, retain, and manage foster homes, but the Department is ultimately responsible for all decisions and maintains final approval for BBCBC’s licensing actions. Ms. Pleas reviewed Ms. Durden’s recommendation of revocation of Respondent’s foster home license. After considering the nature and cause of the injuries inflicted, the consistency of B.H.’s statements, and the analysis of the CPT, Ms. Pleas concurred that revocation was necessary. In considering the appropriateness of revocation, Ms. Pleas also took into account that Respondents were now subject to a verified abuse report, meaning that the Department could no longer place minor children in their care. Ms. Pleas drafted the letter notifying Respondents of the Department’s decision to revoke their foster home license. The letter, dated September 28, 2018, appropriately notified Respondents of the Department’s intended action and of their due process rights in challenging the Department’s preliminary decision.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Children and Families revoking the foster home license of Respondents Dawndrell Martin and Mary Highsmith. DONE AND ENTERED this 22nd day of March, 2019, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of March, 2019.
The Issue The issue in this case is whether Petitioner is entitled to issuance of a license to operate a family day care home, pursuant to chapter 402, Florida Statutes, and Florida Administrative Code Rule 65C-20.008.
Findings Of Fact The Parties Petitioner, Shaguandra Ruffin Bullock, is an applicant for a family day care home license for the Ruffin Bullock Family Day Care Home. Respondent is the state agency responsible for licensing family day care homes in Florida. § 402.312(1), Fla. Stat. Events Giving Rise to this Proceeding A "family day care home" is an occupied residence in which child care is regularly provided for children from at least two unrelated families and which receives a payment, fee, or grant for any of the children receiving care, whether or not operated for profit. § 402.302(8), Fla. Stat. On or about July 6, 2017, Petitioner filed an application to operate a family day care home. Respondent reviewed the application and determined that it was incomplete, pending completion of the background screening required by sections 402.313(3), 402.305, and 402.3055.2/ On or about December 8, 2017, Respondent sent Petitioner a Notice of Intent to Deny Family Day Care Home Licensure ("NOI"), informing her of Respondent's intent to deny her application for a family day care home. The NOI stated, in pertinent part: On October 10, 2017, the Department received background clearance letters from child care personnel at Respondent's Family Day Care Home. Pursuant to Section 402.313(3), Florida Stat., childcare personnel in family day care homes are subject to applicable screening provisions. Pursuant to Section 402.302(15), Florida Stat. and Section 39.201(6), Florida Stat., The Department assessed the background of child care personnel at Respondent's family day care home including, but not limited to information from the central abuse hotline. The Department's assessment revealed the Respondent did not meet minimum standards for child care personnel upon screening which requires personnel to have good moral character pursuant to Section 402.305(2)(a), Florida Stat. The foregoing violates Rule 65C- 22.008(3), Fla. Admin. Code,[3/] Section 402.305(2)(a), Fla. Stat. and Section 402.313(3), Florida Stat. Based on the foregoing, Ruffin Bullock Family Day Care Home's, [sic] pending licensure application will be denied. Evidence Adduced at the Hearing At the final hearing, Respondent acknowledged that the background screening for Petitioner and her husband, Marlon Bullock, did not reveal that either had ever engaged in any of the offenses identified in section 435.04, Florida Statutes, which establishes the level 2 screening standards applicable to determining good moral character in this proceeding, pursuant to section 402.305(2)(a).4/ Rather, Respondent proposes to deny Petitioner's license application solely based on two confidential investigative summaries ("CIS reports") addressing incidents—— one involving Petitioner that occurred over 11 years ago, and one ostensibly involving Marlon Bullock that allegedly occurred almost 11 years ago. The CIS report for Intake No. 2007-310775-01 addresses an incident that occurred on or about January 16, 2007. Petitioner acknowledges that the incident addressed in the CIS report for Intake No. 2007-310775-01 occurred. Petitioner testified, credibly and persuasively, that at the time of the incident, Petitioner and her then-husband, Bernard L. Johnson, were going through a very difficult, emotionally-charged divorce. Petitioner went to Johnson's home to retrieve their minor children. An argument between her and Johnson ensued, and she threw a car jack through the back window of Johnson's vehicle. As a result of this incident, Petitioner was arrested. However, she was not prosecuted, and the charges against her were dropped. Respondent's witnesses, Ann Gleeson and Suzette Frazier, both acknowledged that they did not have any independent personal knowledge regarding the occurrence, or any aspects, of the incident reported in the CIS report for Intake No. 2007-310775-01. The other CIS report, for Intake No. 2007-455485-01, addresses an incident that ostensibly took place on September 7, 2007, involving Marlon Bullock, who is now Petitioner's husband. Petitioner was not married to Bullock at the time of the incident reported in the CIS report for Intake No. 2007- 455485-01. She credibly testified that she was completely unaware of the incident, and had no knowledge of any aspect of it, until she saw the CIS report in connection with this proceeding. Gleeson and Frazier both acknowledged that they did not have any independent knowledge regarding the occurrence, or any aspects, of the incident addressed in the CIS report for Intake No. 2007-455485-01.5/ The CIS reports and their contents are hearsay that does not fall within any exception to the hearsay rule.6/ The CIS reports and the information contained therein consist of summaries of statements made by third parties to the investigators who prepared the reports. The investigators did not have any personal knowledge about the matters addressed in the reports. It is well-established that hearsay evidence, while admissible in administrative proceedings, cannot form the sole basis of a finding of fact in such proceedings. § 120.57(1)(c), Fla. Stat. Accordingly, the CIS reports do not constitute competent, substantial, or persuasive evidence in this proceeding regarding the matters addressed in those reports. Thus, Petitioner's testimony constitutes the only competent substantial evidence in the record regarding the matters addressed in the CIS report for Intake No. 2007-310775-01, and there is no competent substantial evidence in the record regarding the matters addressed in the CIS report for Intake No. 2007-455485-01. Respondent has not adopted a rule defining the term "good moral character." Therefore, it is required to determine an applicant's "good moral character" based on the definition of that term in statute. As noted above, section 402.305(2)(a) provides that "good moral character" is determined "using the level 2 standards for screening set forth in" chapter 435. Ann Gleeson reviewed Petitioner's application for a family day care home license. She testified that based on her review of the CIS reports for Intake No. 2007-310775-01 and Intake No. 2007-455485-01, she "didn't feel comfortable" recommending approval of Petitioner's application for a family day care home license, and she recommended that the license be denied. As noted above, Gleeson did not have any personal knowledge of any of the matters in the CIS reports. She relied on the reports and their contents in making her recommendation to deny Petitioner's application. Suzette Frazier, Gleeson's supervisor, made the ultimate decision to deny Petitioner's application for the license. At the final hearing, Frazier testified that she determined that Petitioner's license should be denied based on the matters addressed in the CIS reports. Frazier testified that Petitioner's application raised particular concerns because of the two CIS reports, even though the CIS report for Marlon Bullock contained a "Findings – No Indicator" notation.7/ Frazier testified that it is Respondent's "policy" to deny an application for a family day care home license in every case in which the background screening for the applicant reveals an incident addressed in a CIS report. According to Frazier, this policy applies even if the background screening shows that the applicant does not have a history involving any of the offenses listed in section 435.04. Further to this point, when Petitioner asked Frazier at the final hearing what she (Petitioner) could do to demonstrate that she has good moral character for purposes of obtaining her license, Frazier told her that although she could reapply, she would never qualify to get the license because of the CIS reports. Frazier testified that, in her view, the CIS reports contain information indicating that both Petitioner and Marlon Bullock have a "propensity" toward violent behavior. Webster's Collegiate Dictionary, 11th edition,8/ defines "propensity" as "a natural inclination or tendency." A "tendency" is "an inclination, bent, or predisposition to something." Id. An "inclination" is a "tendency toward a certain condition." Id. A "predisposition" is a "tendency to a condition or quality." Id. Frazier's view that Petitioner and Marlon Bullock have a "propensity" toward violent behavior is not supported by the competent, substantial, or persuasive evidence in the record. To the extent Frazier relies on the information contained in the CIS reports to conclude that Petitioner and Marlon Bullock have a "propensity" toward violent behavior, neither of these reports constitutes competent substantial evidence regarding the matters addressed therein. Furthermore, to the extent Petitioner acknowledges that she engaged in the conduct addressed in CIS report Intake No. 2007-310775-01, the competent, substantial, and persuasive evidence shows that this incident——which was an isolated event that occurred in the context of an extremely emotional and difficult personal event in Petitioner's life——simply does not establish that she has a "tendency" or "inclination" or "predisposition" toward violent behavior. To the contrary, the competent, persuasive evidence shows that this was a one-time event that happened over 11 years ago, that Petitioner did not have any instances of violent behavior before then, and that she has not had any instances of violent behavior since then. Far from showing a "propensity" toward violent behavior, the competent, persuasive evidence shows that Petitioner has exhibited an otherwise completely non-violent course of conduct throughout her life. Additionally, as previously noted, the evidence shows that neither Petitioner nor Marlon Bullock have any history involving any of the offenses listed in section 435.04. There is no competent substantial evidence in the record showing that Petitioner has engaged, during the past 11-plus years, in any criminal or other conduct that would present a danger to children, and there is no competent substantial evidence in the record establishing that Marlon Bullock has ever engaged in any criminal or other conduct that would present a danger to children. To the contrary, the competent substantial evidence establishes that Petitioner and Marlon Bullock are law-abiding citizens. Petitioner is employed as the manager of a department for a Wal-Mart store. Marlon Bullock is, and has worked for 23 years as, a chef. Petitioner credibly and persuasively testified that she is a Christian who attends, and actively participates in, activities with her church. Petitioner also credibly and persuasively testified that she has raised her four sons from her previous marriage to be law-abiding, upstanding citizens. None of them has ever been arrested or involved in any criminal behavior, and her three adult children are all gainfully employed. Petitioner posits, persuasively, that her children are testaments to the stability of her character and her ability to provide a safe, nurturing environment for the care of children. Frazier testified that Respondent's review of Petitioner's application showed that apart from the good moral character requirement, Petitioner's application met all other requirements to qualify for a family day care home license.9/ Findings of Ultimate Fact Although Respondent has adopted a rule, detailed in its Handbook, which establishes the background screening process for purposes of determining good moral character, Respondent has not adopted a rule defining "good moral character" or establishing, apart from the standards set forth in section 402.305(2)(a), any other substantive standards for determining "good moral character." Accordingly, pursuant to the plain language of section 402.305(2)(a), the level 2 screening standards set forth in section 435.04 are the standards that pertain in this proceeding to determine good moral character. Pursuant to the foregoing findings of fact, and based on the competent, substantial, and persuasive evidence in the record, it is found, as a matter of ultimate fact, that Petitioner and Marlon Bullock are of good moral character. Conversely, the competent, substantial, and persuasive evidence in the record does not support a determination that Petitioner and Marlon Bullock do not have good moral character. As noted above, Respondent determined, in its review of Petitioner's application, that other than the good moral character requirement, Petitioner met all other statutory and rule requirements for a family day care home license. Because it is determined, in this de novo proceeding under section 120.57(1), that Petitioner and Marlon Bullock meet the good moral character requirement, Petitioner is entitled to issuance of a family day care home license pursuant to sections 402.305(2)(a), 402.312, and 402.313 and rule 65C-20.008. Finally, it is noted that Respondent has not adopted as a rule pursuant to section 120.54(1)(a), its "policy" of denying applications for family day care home licenses in every case in which the background screening for the applicant reveals an incident addressed in a CIS report. Accordingly, pursuant to section 120.57(1)(e)1., Respondent cannot rely on or apply this "policy" to deny Petitioner's application for a family day care home license.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order granting Petitioner's license for a family day care home. DONE AND ENTERED this 12th day of April, 2018, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS 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 12th day of April, 2018.
The Issue The issue is whether Respondents' foster home license should be revoked because of inadequate supervision of foster children, as alleged in Petitioner's letter dated December 22, 1998.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In this proceeding, Petitioner, Department of Children and Family Services (DCFS), seeks to revoke the foster home license of Respondents, Wendy and David Palmer. In a letter dated December 22, 1998, DCFS alleged that Respondents allowed "foster children to be taken overnight over one hundred miles from [their] home with no supervision from [Respondents] as the licensed foster parents." The charging document went on to allege that their "neglect materially affected the safety and welfare of the children because they were given alcoholic beverages and were allowed to sleep with men." Respondents denied the allegations and requested a formal hearing to contest the proposed action. Their license has remained inoperative pending the outcome of this proceeding. Respondents have operated a foster home around six miles north of Altoona, Florida, since May 1994, caring mainly for teenage females who had "a lot of behavior problems" and had failed in prior placements. The home is licensed by DCFS under Section 409.175, Florida Statutes. Children were placed in their home by the Lake County Boys Ranch, a private organization which had a contract with DCFS to provide that service. On an undisclosed date, but prior to August 1998, three females, M. G., G. M., and D. W., were placed in Respondents' home. At that time, each of the girls was around fifteen years of age. G. M. had almost fifty prior placements, while D. W. had failed in "several" other placements. M. G. had also been in a number of "non-relative" placements, but the exact number is unknown. All three had a reputation of being difficult to handle and were considered "high-risk." None testified at the final hearing and thus any comments they may have made to a DCFS investigator are hearsay in nature. Respondents' daughter, Jamie, who was 21 years old when the events herein occurred, had been approved to serve as a respite provider at the foster home. This meant she could assist her parents by transporting the children to medical or visitation appointments and provide supervision in the home for a limited period of time. Examples of her duties included transporting the three girls to doctor's appointments, to lunch, or to the beach for recreational purposes. She considered her relationship with the girls to be "like sisters." On August 3, 1998, Jamie decided to travel to Hampton in Bradford County, Florida, in an extended cab pick-up truck to retrieve the remainder of her personal belongings from the residence of her former boyfriend, Scott, a 22-year-old male. Hampton is approximately 83 miles from Altoona, but the distance between the foster home and Scott's residence was no more than 75 miles or so. The one-way trip less took less than an hour and a half. Jamie spoke with her mother around 10:30 or 11:00 a.m. that day and received permission for the three girls to accompany her on the trip. The trip was perceived by Wendy Palmer as a recreational trip, and one that would enable the girls to build trust in the family since it allowed them to take a short trip away from their home and to return later that same day. Contrary to the charging document, this was not an illegitimate purpose, and Respondents' authorization of the trip at that point in time could not reasonably be forseen as an act which would materially affect the girls' health or welfare. Jamie was told to go straight to Hampton, pack her belongings, and then return. Jamie eventually departed the foster home between 2:00 p.m. and 2:30 p.m. and arrived at Scott's residence shortly before 4:00 p.m. Although Scott was not at home when the group first arrived, he returned shortly thereafter with "two buddies," both adult males. A verbal argument between Scott and Jamie ensued, and Scott remained at the residence for several hours while the two discussed why their relationship had gone sour. Scott's two friends, however, remained outside the residence by his truck. Just before 6:00 p.m. Jamie telephoned her mother to advise that she had safely arrived in Hampton, that she was packing, that Scott was on the premises attempting to change her mind about leaving him, and that it looked like it was going to rain. Scott and his friends left a few minutes later, and even though Scott had a key to the residence, he and his friends did not return that evening. Before 9:00 p.m., Jamie again telephoned her mother to advise that it was storming, that she was upset after arguing with Scott, and that she was afraid to drive home in rainy weather at that hour with the girls. Accordingly, she asked permission to remain at Scott's residence that evening and drive home the first thing in the morning. Although Scott's residence was not a licensed, inspected, and approved foster home, Wendy Palmer agreed that under those extenuating circumstances, it was appropriate to remain in Hampton overnight. Wendy Palmer added that she would have driven to Hampton herself to retrieve the girls, but she did not wish to drive on two-lane roads in the rain at that late hour. Wendy Palmer's decision that evening technically violated her duty as a foster parent to provide round-the-clock supervision for the girls in a licensed foster home. Indeed, without the order of a court, foster children are not allowed to stay in an unlicensed home. After talking with her mother, Jamie drove to a local convenience store and purchased two Bud Lights in a can. She returned to the residence and consumed them herself. Contrary to the allegations in DCFS's letter dated December 22, 1998, the girls were not given alcoholic beverages. Also, Jamie did not allow adult males to enter the premises that evening. Further, they did not engage in sexual relations with other men. Indeed, except for the girls and Jamie, there was no one else present, and all four slept in the living room of the residence. Although Jamie allowed the three girls to smoke that evening, this conduct is not cited as a ground for revocation in the charging document. The next morning, Jamie telephoned her mother a third time and advised that they were getting ready to drive back to Altoona. The group returned a short time later. On October 9, 1998, or some two months later, the three girls ran away from the foster home and were eventually picked up by law enforcement authorities in Wildwood, Florida. At that time, D. W. made allegations for the first time that while in Hampton on the evening of August 3, 1998, the group had been given alcoholic beverages by Jamie, that they had engaged in sexual intercourse with friends of Scott, and that Jamie had become intoxicated. These allegations led to an investigation by DCFS and its decision to revoke Respondents' foster home license. They also resulted in a verified report of institutional neglect on November 2, 1998, which is found in abuse report 98-113392. DCFS takes the position that the trip had no legitimate purpose because the girls would receive no discernible benefit from the trip. This assertion has been rejected above. It further contends that the teenagers were placed at risk when Respondents allowed the girls to stay overnight with a respite worker in an unlicensed home. According to DCFS, the appropriate action would have been for the Palmers to advise Jamie to transport the girls to a "public shelter" in the area, or alternatively, for the Palmers to drive to Hampton that evening and pick them up. Because these latter steps were not followed, Respondents violated DCFS protocol, and they committed a negligent act within the meaning of the statute. During the four-year period in which Respondents served as foster parents, they provided outstanding care for foster children who were most at-risk, and all of whom had failed in prior placements. Other than this one incident, there are no blemishes on their record. Moreover, they have the continuing support and confidence of the private agency which makes local placements of foster children pursuant to a contract with DCFS. These considerations, as well as the extenuating circumstances which occurred on the evening of August 3, 1998, should be taken into account in determining whether Respondents' license should be disciplined.
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 determining that Respondents violated Section 409.175(8)(a)1., Florida Statutes, and that their foster home license be suspended for one year effective December 22, 1998. DONE AND ENTERED this 10th day of June, 1999, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 10th day of June, 1999. COPIES FURNISHED: Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John S. Slye, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John N. Spivey, Esquire 14550 U. S. Highway 441 Tavares, Florida 32778 Ralph J. McMurphy, Esquire Department of Children and Family Services 1601 West Gulf Atlantic Highway Wildwood, Florida 34785-8158
