Findings Of Fact In August, 1980, the home of Jacob and Donna Vermeulen was licensed by Petitioner as a pre-school foster home. Under that licensure, the Vermeulens were able to care for children from birth to four years of age. The subject of this proceeding, hereinafter referred to as S.L., was born on May 26, 1976. When S.L. was four years old he and his younger sister were removed from the custody of his natural mother (after he witnessed the homicide by bludgeoning of his father by his mother) because S.L. and his sister had been physically abused by both natural parents. Petitioner placed S.L. and his sister into the Vermeu1en foster home. After S.L. and his sister had been living with the Vermeulens for approximately six months, Petitioner removed them from the Vermeulen home and returned them to the custody of their natural mother. After approximately six months, the two children were again removed from their natural mother since she again physically abused them. Petitioner requested the Vermeulens to again take custody of S.L. and his sister. The Vermeulens were reluctant to do so since both S.L, and his sister were now older than was allowed under the Vermeulens' license, and because S.L. had problems relating with the other foster children living in that home during his first stay there. However, Petitioner's social workers begged the Vermeulens to take the children back since Petitioner was unable to find any other placement for S.L. The Vermeulens agreed to make their home available to S.L. and his sister, and the two children thereafter lived in the Vermeulen home for approximately two and one-half years prior to April 16, 1984. S.L. is a difficult child to care for; he is very emotional, developmentally immature, fearful, and fidgety. He has difficulty sleeping or listening, has a very low self-esteem, and is unable to complete tasks since he becomes emotionally frustrated. Not only is S.L. a clumsy child (most probably due to medication), he also throws himself onto the floor and onto his toys, both as part of his aggressive play behavior and also in conjunction with throwing temper tantrums. S.L. initiates fights in school, on the school bus and at home with the other children in the Vermeulen home to such an extent that fighting somewhere would have been almost a daily occurrence. His excessive demands for attention were often accompanied by negative behavior, such as hitting other children and throwing temper tantrums. On December 21, 1983, S.L. was evaluated by psychiatrist Josephine Perez. Perez diagnosed S.L. as suffering from Attention Deficit Disorder with Hyperactivity. Perez determined that the high dosages of anti-psychoic medication that S.L. had been taking were inappropriate, and she prescribed different medication for him. Perez recalls that during S.L.'s initial evaluation in December she noticed that his legs and arms were filled with bruises. S.L. began treating weekly with Perez from January 16, 1984, until April 16, 1984. On each visit at least one of the Vermeulens was present, and each visit contained a seasion between Perez and the foster parent discussing the child's progress and training the foster parent in the use of behavioral modification techniques. During those several months S.L. appeared at Perez's office on one occasion with a black eye and on another occasion with a bruising above his eye. One injury resulted from a fall in the bath tub, and another resulted from a fall out of bed; both falls were probably attributable to changes Perez made in S.L.'s medication. The Vermeulens discussed both incidents with Perez since they were concerned that S.L,'s medication was still not in the proper dosage. The Vermeulens testified that sometimes when S.L.'s medication was changed, he was unable to control even his arms and was unable to sit still long enough to eat. In January, 1984, when S.L. began treating with Dr. Perez there were six children living in the Vermeulen home: four foster children, one adopted child, and one natural child. The Vermeulens and Dr. Perez discussed the number of children living in the Vermeulen home, which prohibited giving S.L. the excessive amount of time required by him to satisfy his need for attention. Perez told the Vermeulens that in her professional opinion S.L. should be in a home with no more than one other child. In turn, the Vermeulens told Perez that they had been requesting Petitioner to remove S.L. from their home out of their concern (1) for S.L. since he needed so much more attention than was available to him and (2) for the other children not only because S.L. would kick and hit them but also because the Vermeulens had discovered S.L. in his sister's bedroom standing over her with a knife in his hand on two occasions. Although Perez agreed that S.L. should be placed a different foster setting, she did nothing to assist in obtaining a different placement and did not discuss with any employee of the Petitioner ("HRS") her recommendation and the Vermeulens' desire that S.L. be placed in a setting, preferably, where he was the only child. The Vermeulens, however, continued to request of HRS employees, including the visiting social workers and medical personnel, that S.L. be removed from their home, with visitation rights being given to the Vermeulens if possible. During this time period the Vermeulens determined that they wished to adopt Michelle, a foster child in their care. On Friday, April 13, 1984, an HRS employee went to the Vermeulen home to discuss that petition for adoption and to advise the Vermeulens that HRS would not allow them to adopt Michelle. Mr. and Mrs. Vermeulen S.L., and the rest of the children living in the home were present during that discussion. The Vermeulens were advised that they would not be permitted to adopt Michelle so long as S.L. was living in their home since he is a "therapeutic foster child" and Petitioner's rules would prohibit the adoption while a "therapeutic child" was in the home. Mrs. Vermeulen was unable to understand Petitioner's position: its refusal to remove S.L. from her home after repeated requests and its refusal to allow her to adopt Michelle for the reason that S.L. was in her home. Mrs. Vermeulen became upset, and S.L. told her and Petitioner's employee to put him in a foster home indicating he would rather be sent away than prevent Michelle from being adopted by the Vermeulens. Since the HRS employee was having a difficult time discussing HRS's position, she left the Vermeulen home. On Friday, April 13, 1984, or on Monday, April 16, 1984, S.L. became involved in a fight on the school bus on the way home from school. The bus driver told Mrs. Vermeulen about the fight. On Monday April 16, 1984, Mrs. Vermeulen took S.L. to his weekly therapy session with Dr. Perez. During that session, S.L. indicated to Perez that he had been bad and had been "paddled" on the legs. He would give her no details, but Perez believed it was Donna Vermeulen who paddled S.L. Rather than discuss it with Mrs. Vermeulen, Perez acted as though nothing had been said. Further, although a medical doctor, she did not examine S.L. Instead, Perez discussed with Mrs. Vermeulen behavioral modification techniques to be utilized with S.L. and sent them home. She then telephoned HRS, and a child abuse report was completed. On April 18, 1984, an HRS employee went to S.L.'s school, removed the child from his class, and took the child to be examined by the Child Protection Team. S.L. was first examined by the nurse. When S.L. was unable to explain to the nurse from where each mark on his body originated (or refused to), she interrogated him with questions such as "Did your mommy hit you?" The nurse made notations on a chart indicating numerous marks or bruises on S.L.'s body. However, an HRS employee saw S.L. disrobed when he was being examined by the doctor on the team and saw only two marks on his lower back. Other HRS employees went to the Vermeulen home and removed all the children. No one discussed the incident or accusation with either Mr. or Mrs. Vermeulen until the following day. Until he was removed from her class on April 18, 1984, S.L. was taught by Debbie Froug an Exceptional Education teacher for emotionally disturbed children. Although Froug describes S.L. as a basically honest child, she testified that he sometimes gets very confused. A careful review of the videotaped testimony of S.L. and of the conflicting testimony of the witnesses in this case indicates that Froug's latter description is probably an understatement. No witness in this case heard the same explanation (or accusation) as any other witness. S.L's videotaped testimony illustrates why: there is no statement made by S.L. that is not contradicted by him a few seconds later. For example the videotaped deposition contains on page 27 the following: O. Did you ever have a black eye? A. No. O. Didn't you talk to Dr. Perez about having a black eye once? A. Yes, but I didn't. How did you get the black eye? One of the kids on the bus. Things stated in the affirmative by S.L. in his deposition are also stated in the negative in that same deposition. Further, it is sometimes impossible to ascertain if S.L. is describing being hit by his real father, by his real mother, or by his foster mother. Although no accusation appears to ever have been made, including in the Administrative Complaint, that Jacob Vermeulen ever struck S.L., by the time of S.L.'s deposition eight months after the alleged incident when S.L. was asked if Jacob ever hit him, that question was answered in the affirmative. In short, the evidence is clear that S.L. had some bruises or marks on his body on April 18, 1984; that those bruises or marks were both received accidentally and intentionally inflicted, and that the bruises or marks on S.L.'s body were received as a result of S.L. falling from being uncoordinated or overmedicated, from S.L. flinging himself onto the floor or onto or against objects, and from being hit or kicked by other children with whom S.L. engaged in almost-daily physical combat. Donna and Jacob Vermeulen used only approved behavior modification techniques with S.L. and did not hit S.L. with or without any object, spank S.L., or otherwise inflict physical abuse upon him. Although the Vermeulens' license as a foster home was in effect at all times material hereto, it has lapsed. A foster home license is not automatically renewed but rather requires an annual licensing study. Other than "the incident" charged herein the Vermeulens have received no prior complaints from HRS.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is REC0MENDED that a Final Order be entered dismissing with prejudice the Administrative Complaint filed herein and directing that any licensure study performed regarding the renewal or extension of Respondents' license be made omitting therefrom consideration of any of the matters set forth herein. DONE and RECOMMENDED this 19th day of July, 1985 at Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of July,1985. COPIES FURNISHED: Leonard Helfand, Esquire Department of Health and Rehabilitative Services 401 N.W. 2nd Avenue, Suite 1070 Miami, Florida 33128 Thomas J. Walsh, Esquire 590 English Avenue Homestead, Florida 33030 David Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
The Issue The issue in this case is whether Petitioners should be issued a family foster home license.
Findings Of Fact Based upon the testimony, exhibits, and stipulated facts in the Joint Stipulation, the following Findings of Fact are made: Parties and Process Petitioners, who are husband and wife, submitted an application for licensure as a family foster home. Although this was an application for initial licensure, Petitioners were previously licensed as a foster home from August 2013 to October 2019.1 The Department is the state agency responsible for licensing foster care parents and foster homes, pursuant to section 409.175, Florida Statutes, and Florida Administrative Code Chapter 65C-45. Petitioners voluntarily relinquished their foster home license on or about October 28, 2019, around the time two female foster children, S.W. and H.C.S., were removed from their care. It is unclear whether the children were removed because of an abuse investigation related to H.C.S., or whether they were removed because Petitioners closed their home to foster children. Regardless, Mrs. Gilio testified that they let their license lapse because they needed a break after fostering H.C.S. The Department administers foster care licensing by contracting with third-party private entities. In Circuit 13, where Petitioners are located, the Department contracted with Eckerd Community Alternatives, doing business as Eckerd Connects (Eckerd), to be the agency responsible for facilitating foster care licensing. Eckerd has subcontracted with Children's Home Network (CHN) to facilitate foster care licensing. 1 Petitioners had previously been denied a foster care license in 2009. At the time relevant to Petitioners, the Department used the "attestation" model of foster home licensing. In this model, a private licensing agency with whom the Department has contracted will conduct a home study on the foster home applicants and attest to the applicants' fitness to be licensed. The Department does not have the discretion to deny the license once the licensing agency has attested to the appropriateness of the applicants, except if they have been named as caregivers in three or more abuse reports within five years. If there are such abuse reports, the Department is required to review those reports and make a final decision regarding the application. There is no requirement that the reports result in a finding of actual abuse for them to be reviewed by the Department.2 Although it is unclear when Petitioners submitted their application for the foster care license in this case, sometime in late 2019, CHN conducted and compiled a Unified Home Study (home study), which included Petitioners' background screening; previous reports of abuse, abandonment, or neglect involving the applicants, and references from all adult children. The home study was reviewed at a meeting on December 19, 2019, by Eckerd, through the Committee. The Committee considered the application, home study, and licensing packet and heard from various agency staff. Petitioners were also allowed to voice comments and concerns at this meeting. Had the Committee approved the application, it would have been sent to the Department along with an attestation that stated the foster home meets all requirements for licensure and a foster home license is issued by the Department. However, the Committee unanimously voted not to recommend approval of a foster home license to Petitioners. 2 The categories of findings for an abuse report are "no indicator," "not substantiated," and "verified." "No indicator" means there was no credible evidence to support a determination of abuse. "Not substantiated" means there is evidence, but it does not meet the standard of being a preponderance to support that a specific harm is the result of abuse. "Verified" means that there is a preponderance of credible evidence which results in a determination that a specific harm was a result of abuse. Frank Prado, Suncoast Regional Managing Director for the Department, ultimately decided to deny Petitioners' application for a family foster home license due to their prior parenting experiences, the multiple abuse reports regarding their home, and the recommendation of the Committee. Mr. Prado expressed concern about the nature of the abuse reports and Petitioners' admission that they used corporal punishment on a child they adopted from the foster care system in the presence of other foster children. Petitioners' Parenting History Petitioners have seven children: one is the biological son of Mr. Gilio; another is the biological son of Mrs. Gilio; and five were adopted through the foster care system in Florida. Of these seven children, six are now adults. Three of the adopted children, Jay, Sean, and Jameson, are biological brothers who Petitioners adopted in 2001. Shawna, who was adopted around 2003, is the only adopted daughter. The Petitioners' one minor child, H.G., is a nine-year-old boy and the only child who resides in their home. H.G. suffers from oppositional defiance disorder. Petitioners admitted they adopted Shawna after there had been allegations of inappropriate behavior made against Jay, by a young girl who lived next door to Petitioners. Later, while they were living with Petitioners, Jay, Sean, and Jameson were arrested for sexually abusing Shawna at different times. As a result, one or more of the sons were court-ordered to not be around Shawna, and the other brothers were required to undergo treatment and never returned to Petitioners' home. During the hearing, both Petitioners seem to blame Shawna, who was nine years old when the sexual abuse by Jay in their home allegedly began, for disrupting their home. They accused her of being "not remorseful" and "highly sexualized." Regarding the abuse by Sean and Jameson, which occurred when Shawna was approximately 12 years old, Mr. Gilio stated Shawna thought it was okay to have sex with boys, and it was "hard to watch every minute of the day if they're, you know, having sex." When Shawna was about 19 years old, she filed a "Petition for Injunction for Protection Against Domestic Violence" against Mr. Gilio in circuit court. The Petition outlined allegations of past sexual comments and inappropriate disciplinary behavior from 2007 to 2012, while she lived with Petitioners. Mr. Gilio denied at the hearing having any knowledge about the Petition against him, but admitted he made comments about Shawna's breasts. As part of the application and home study process, the CHN collected references from Petitioners' former foster children and adult children. Shawna (Petitioners' only adopted daughter) gave them a negative reference and specifically stated she would not want female foster children to live with Petitioners. Reports of Abuse Petitioners were involved in 24 abuse reports during their time of licensure between 2013 and 2019. During the past five years, Petitioners were named as either alleged perpetrators or caregivers responsible in eight reports that were made to the Florida Child Abuse Hotline (Hotline). Of those eight reports, five of them named Mr. Gilio as the alleged perpetrator causing a physical injury, one report named Mr. Gilio as the caregiver responsible for a burn on a foster child, and one report named Mr. Gilio as an alleged perpetrator of sexual abuse against a foster child. Mrs. Gilio was named as an alleged perpetrator of asphyxiation as to a foster child. Seven of the reports in the last five years against Petitioners were closed with no indicators of abuse. One of the abuse reports was closed with a "not substantiated" finding of physical injury. In this report, Mr. Gilio was the alleged perpetrator and the victim was H.G., Petitioners' minor adopted son. Additionally, after Petitioners let their foster license lapse in October 2019, a subsequent report was made against Mr. Gilio for improper contact with a former foster daughter. This incident was discussed at the Committee meeting, but it was unclear if this allegation was ever investigated. Corporal Punishment According to the Department's rules, discussed below, foster parents are forbidden to engage in corporal punishments of any kind. In 2019, there were two reports alleging Mr. Gilio of causing physical injury by corporal punishment on H.G. At the time, there were other foster children in the household. Technically, Mr. Gilio was allowed to use corporal punishment on H.G. because he was no longer a foster child and had been adopted from foster care. If a parent uses corporal punishment on a child, there can be no findings of abuse unless the child suffered temporary or permanent disfigurement. However, foster care providers are not permitted to use corporal punishment. More than one witness at the hearing had concerns about the use of corporal punishment against H.G. because of his operational defiance disorder and because other foster children (who may have been victims of physical abuse) were in the household. Brendale Perkins, who is a foster parent herself and serves on the Hillsborough County Family Partnership Alliance, an organization that supports licensed foster parents, testified she witnessed Mr. Gilio treating a foster child in his care roughly. At the time, she was concerned because this was not the way children in foster care (who may have previously been victims of abuse) should be treated. She did not, however, report it to any authorities. The Department established through testimony that the policy against using corporal punishment is taught to all potential foster families. Mr. Gilio, however, denied ever being instructed not to use corporal punishment against foster children or while foster children were in the home. He also claimed that H.G.'s therapist had never recommended any specific punishment techniques. The undersigned finds Mr. Gilio's testimony not credible. Cooperation with Fostering Partners The Department established that decisions regarding foster children are made within a "system of care" which includes input from case managers, guardian ad litem (GAL), and support service providers. The relationship between Petitioners and others working as part of this system during the time of fostering was not ideal; it was described by witnesses as "tense" and "disgruntled." One witness, a supervisor at CHN, testified Mr. Gilio was not receptive or flexible when partnering with other agencies, and was not always open to providing information when questioned. As an example, Petitioners fired a therapist without consulting with the CHN staff or the GAL for the child. At the final hearing, Mr. Gilio continued to claim he did nothing wrong by not consulting with others in the system regarding this decision. Kristin Edwardson, a child protection investigator for the Hillsborough County Sheriff's Office, was tasked with investigating the reports of abuse and neglect against Petitioners that had been reported to the Hotline. She testified she was concerned with the level of cooperation they provided her and other investigators. Although they ultimately would cooperate, Petitioners made it difficult for the investigators and would often "push back" and make the situation more stressful. She described Mr. Gilio as being disrespectful, belittling, and dismissive of her. Licensing Review Committee On December 19, 2020, the Committee, made up of eight individuals, was convened to review Petitioners' application for a foster home license. When determining whether a family should receive a foster home license, the Committee is to evaluate the applicants' background, parenting experience, references from community partners, and the family's openness and willingness to partner. Sheila DelCastillo, a regional trainer with the GAL program, was a Committee member. She had prior knowledge of Petitioners from a report that a foster child's room in Petitioners' home smelled strongly of urine during a home visit and that GAL staff had found a prescription bottle beside the child’s bed that belonged to Mr. Gilio. With regards to Petitioners' application, she read the licensing review packet and home study that contained numerous abuse reports. Ms. DelCastillo was concerned about the 24 abuse reports Petitioners’ received during their time of licensure, the negative reference from Shawna, their use of corporal punishment on H.G., and Petitioners' downplaying of the events that led to multiple abuse reports. Michelle Costley, a licensing director with CHN in charge of level 2 traditional foster homes, also served on the Committee. Ms. Costley has 14 years of experience, with seven of those years spent in foster care licensing. As director of licensing, Ms. Costley was concerned about the number of abuse reports received regarding Petitioners; Mr. Gilio's inability to be open and flexible when working in partnership with other agencies; and the needs of Petitioners' child, H.G. She was also concerned about Petitioners' decision to fire a therapist of a foster child without consulting the GAL or the other individuals involved with that child. Regarding the alleged abuse, Ms. Costley was concerned that most of the reports regarding Petitioners involved allegations of physical abuse, inappropriate touch of a sexual nature, or sexual abuse, with most alleged victims being younger than eight years old. She explained that even though these reports could not be "verified," these types of allegations are harder to establish because testimony by children of that age often is unreliable and there usually must be evidence of physical injury, which no longer is present by the time the alleged abuse is investigated. Ms. Perkins also served on the Committee. Ms. Perkins served as a foster parent mentor, working with foster parents to help them build co- parenting strategies and navigate the system of care. She has been a licensed foster parent for 13 years and has adopted 11 children from foster care. As stated earlier, she was familiar with Petitioners from the Hillsborough County Family Partnership Alliance meetings. Ms. Perkins was concerned with the number of abuse reports with similar allegations, but different victims. She also discussed Petitioners' use of corporal punishment, noting that they could have been using verbal de-escalation methods instead of corporal punishment due to the traumatic histories of many foster care children. Ms. Edwardson also served on the Committee. In addition to her personal interactions with Petitioners, Ms. Edwardson was concerned about the totality of the information presented to the Committee regarding the abuse reports and Mr. Gilio's lack of cooperation. She noted that although they were not substantiated, the number and nature of the reports related to young children were of concern. Based on the Committee notes and transcript of the meeting, Petitioners were allowed to respond to the Committee's questions at the December 2019 meeting. They argued that none of the abuse reports were proven true and any injuries were not their fault. They seemed more concerned about who made the abuse reports and why the abuse reports were called in than whether the foster children were protected in their care. For example, although Mr. Gilio admitted to hitting H.G. with a stick twice as big as a pencil, he denied any bruising was caused by the stick. A report of a burn on another child was explained by Mr. Gilio as an accident that occurred while he was teaching her how to iron; he could not understand why this was reported as possible abuse. Ms. Gilio explained that H.C.S. was a very active child which resulted in her needing stitches and requiring restraint. After hearing from Petitioners, the Committee members discussed their concerns that Petitioners were not forthcoming about the various abuse incidents, and would not take responsibility for any of the injuries or issues raised by the abuse reports. All eight members voted to not move Petitioners' application forward.
Recommendation Based on the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Department of Children and Families denying a family foster home license to Petitioners, Mary and James Gilio. DONE AND ENTERED this 9th day of November, 2020, in Tallahassee, Leon County, Florida. S HETAL DESAI 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 9th day of November, 2020. COPIES FURNISHED: Anthony Duran, Esquire Tison Law Group 9312 North Armenia Avenue Tampa, Florida 33612 (eServed) Deanne Cherisse Fields, Esquire Department of Children and Families 9393 North Florida Avenue Tampa, Florida 33612 (eServed) Lacey Kantor, Esquire Department of Children and Families Building 2, Room 204Z 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed) Javier A. Enriquez, General Counsel Department of Children and Families Building 2, Room 204F 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed) Chad Poppell, Secretary Department of Children and Families Building 1, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed)
Findings Of Fact At all times material hereto, Berta Cabral and Cabral Adult Foster Home were certified by the Department of Health and Rehabilitative Services to operate as an adult foster home. On October 2, 1985, Freda Aliber was released as a patient from Coral Gables Hospital and was placed in Cabral Adult Foster Home. When she arrived at the Cabral Adult Foster Home she had with her personal papers including bank statements for accounts which she held at Coral Gables Federal and at City National Bank. On October 3, 1985, Berta Cabral's daughter Odalys Ibarra telephoned Coral Gables Federal to advise that she would be coming to the bank that day with Freda Aliber. Later that same day Odalys Ibarra, Julie Ibarra, and Freda Aliber came to Coral Gables Federal at which time Odalys Ibarra attempted to have her name added to Aliber's bank account. Further, Odalys Ibarra made her requests of the bank personnel in Spanish although Freda Aliber does not understand Spanish. Bank employees refused to add Odalys Ibarra's name to Freda Aliber's account. On or about October 3, 1985, Odalys Ibarra telephoned City National Bank, identified herself as Berta Cabral's daughter, and asked a number of personal questions regarding Freda Aliber's account at that bank. Odalys Ibarra's attempts to gain access to Freda Aliber's personal funds were done with the full knowledge and consent of Berta Cabral. Freda Aliber did not understand what Berta Cabral, Odalys Ibarra, and Julie Ibarra were attempting to do and did not understand why she was taken to the bank.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered revoking Berta Cabral's certification as Cabral Adult Foster Home. DONE and RECOMMENDED this 31st day of July, 1986, at Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of July, 1986. COPIES FURNISHED: William Page, Jr., Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 Leonard Helfand, Esquire Department of Health and Rehabilitative Services 401 N.W. 2nd Avenue Miami, Florida 33128 Berta Cabral Cabral Adult Foster Home 2331 N.W. 31 Street Miami, Florida 33142
The Issue The issue at the final hearing was whether the Petitioners met the statutory criteria for licensure as a children's foster home.
Findings Of Fact Based on my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I hereby make the following findings of fact: The Petitioners, Paul and Patricia Burnette, were married in 1969 and have lived together continuously since that time. The Petitioners were previously licensed as foster home parents in the State of Florida and have had children placed in their home. During the summer of 1984, the Petitioners' became interested in adopting six (6) children, aged sixteen (16), fifteen (15), eleven (11), six (6), five (5), and four (4) years old. Because the parental rights of the natural mother had not been finally terminated, the Petitioners were advised by their case worker that they should apply for foster home care licensure. The case worker advised the Petitioners that if they were licensed for foster home care, they would be able to obtain custody of the children pending final termination of the parental rights of the natural mother. Thus, the Petitioners sought licensure to provide foster home care as a step toward ultimately adopting the six (6) children. By application dated November 1, 1984, the Petitioners, Paul and Patricia Burnette, applied for a license to provide foster-family care for children in accordance with the provisions of Section 409.175, Florida Statutes (1983). The application provided for Ms. Burnette to indicate whether or not she had been convicted for anything other than a minor traffic violation. Ms. Burnette did not indicate "yes" or "no" on that portion of the form. On October 4, 1983 Patricia Burnette was convicted in the County Court of the Ninth Judicial Circuit of Orange County, Florida of the offense of petit theft. Ms. Burnette was tried by jury and was represented by counsel. She was adjudicated guilty and placed on six (6) months unsupervised probation. Ms. Burnette was further ordered to pay a fine of $150, $15 victims compensation, $7.50 surcharge and $14 court costs within 30 days. She was sentenced to serve ten (10) days in the Orange County jail, suspended on the condition that she complete ten (10) days of alternative community service beginning October 15, 1983. Ms. Burnette was further ordered not to go onto the premises of Albertson's located at 2801 South Orange Avenue, Orlando, Florida. Ms. Burnette was represented at trial by Leo A. Jackson, an attorney licensed to practice law in the State of Florida. At the conclusion of the trial, Mr. Jackson informed Patricia Burnette that the judge had withheld adjudication. Mr. Jackson explained to Ms. Burnette that because the judge had withheld adjudication, she was not convicted of the crime. Based on the legal advice received from Mr. Jackson, Ms. Burnette believed that she had not been convicted of the offense of petit larceny. A medical history form was also included as a part of the application for licensure as a children's foster home. On the medical history form, Ms. Burnette responded "no" to the question of whether or not she had or had ever had any back pain. Prior to licensure as a children's foster home, the applicant's are required to be examined by a physician. The physician is required to complete a form entitled "Physicians Report on Adoption Applicants." As a part of completing the form, the physician requests information from the applicant concerning the applicants medical history or previous illnesses. Ms. Burnette was examined by Dr. Din On-Sun, D.O. on October 5, 1984. During the examination, Ms. Burnette did not indicate any prior back pain or any other problems related to her back. On November 10, 1978, Patricia Burnette was involved in an industrial accident and injured her back. Ms. Burnette was paid temporary total disability benefits for a period of 1,200 days and sustained a 3% permanent impairment as a result of the accident. As a result of her injury, Ms. Burnette was on crutches for two (2) years and was told that she would never walk again. Ms. Burnette occasionally still suffers from back pain and must take pain medication. Because of her back injury, Ms. Burnette did not·perform the community service which was ordered as a result of her conviction for petit theft in October 1983. From October 1983 through September 1984, Ms. Burnette continued to advise Ms. Sue Rash (the Alternative Service Coordinator responsible for arranging her community service) that she was unable to perform any community service because she was having considerable trouble with her back and needed back surgery but could not afford it. In September of 1984, MS. Rash arranged a special assignment for MS. Burnette to work approximately 2 hours per day at the Sand Lake Treatment Plant Laboratory washing glassware and doing "light cleaning up." Ms. Burnette told MS. Rash that she wanted to talk to her doctor before she agreed to do any community service. On September 18, 1984, Ms. Burnette's physician advised Ms. Rash that he didn't think that Ms. Burnette could stand long enough to wash glassware and do clean-up work at the Sand Lake Treatment Plant Laboratory. On October 13, 1984, Ms. Rash sent a letter to the judge who had originally ordered Ms. Burnette to perform the community service. Ms. Rash explained to the judge that Ms. Burnette was still unable to perform her community service and recommended that a different sentence be considered for Ms. Burnette in lieu of community service. At that point, Ms. Rash closed Ms. Burnette's file.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is, RECOMMENDED THAT: Petitioners' present application for licensure as a children's foster home be VOIDED; and, Petitioners be allowed to submit a new application so that their eligibility for licensure as a children's foster home may be evaluated by the Department of Health and Rehabilitative Services based on full and truthful responses to the inquiries contained therein. DONE and ORDERED this 16th day of April, 1986 in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day April, 1986. COPIES FURNISHED: Douglas L. Whitney, Esquire Department of Health and Rehabilitative Services 400 W. Robinson Street Suite 911 Orlando, Florida 32801 N. Diane Holmes, Esquire 209 East Ridgewood Street Orlando, Florida 32803 William "Pete" Page, Jr. Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 Steve Huss, Esquire General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner's license to operate a family daycare home should be suspended based upon the Petitioner's husband's plea of nolo contendere to a disqualifying second degree felony.
Findings Of Fact The Petitioner, Sislyn Gonsalves, has operated a family daycare home at times pertinent hereto, including in 2005 up through the time of the hearing, pursuant to license number F12V00010. The family daycare home is located at 2820 Lake Helen Osteen Road, Deltona, Volusia County, Florida. The Petitioner and her husband Clayton A. Gonsalves have had repeated disciplinary problems with their 13 year old son, K. G. K. G. had been repeatedly in trouble at school and may have been involved in an incident involving a theft, of which his parents became aware. On or about April 16, 2005, an incident occurred in the Petitioner's home. The Petitioner's husband Clayton Gonsalves and the Petitioner were trying to leave for church that morning and to persuade their son K. G. to attend church with them. An argument between the son and Mr. Gonsalves ensued. During the incident Mr. Gonsalves picked- up a short piece of light weight PVC pipe, approximately three feet by three quarter's of an inch, and struck his son several times on the left shoulder and the right hand. The persuasive evidence in this case is that the blows with the light weight PVC pipe did not leave marks. The son, K. G., being angry and upset at the time, abruptly left the family premises. The Petitioner and her husband and other child thereupon preceded to attend church. Later that day, after the incident had apparently been reported to the police, the police arrested Mr. Gonsalves and charged him as having committed child abuse. On or about May 11, 2005, Mr. Gonsalves entered a plea of nolo contendere on a charge of aggravated child abuse, which is a second degree felony. This resulted from the incident described above. As a result of that plea Mr. Gonsalves was sentenced to a term of three years of probation, and adjucation was withheld. As a condition of his probation he was ordered to have "no violent contact" with the victim, K. G., and to "comply with the Department of Children and Family's conditions and case plans." Mr. Gonsalves works in the State of New York as a plumber. He returns to his family residence, to be with his family, whenever possible, between jobs. He resides there with the Petitioner and their children at such times. He is often present in the family residence while the Petitioner is providing daycare for other children and often assists her in providing care for the children. The unrefuted, persuasive evidence adduced by the Petitioner through her testimony and that of her witnesses establishes that she and her husband are loving parents who do not maintain an abusive home. They treat their own children and the children they provide daycare for, as clients, in a loving, responsible and positive way. The Petitioner is in the process of earning her college degree in Early Childhood Education and desires to continue in the business of providing daycare. The lack of an abusive climate in the home is borne out by the fact that the Petitioner's and Mr. Gonsalves's children are in the gifted program in school, and by the fact that K. G.'s grades and scholastic standing at school have marketedly improved since the incident in question. The Petitioner's witnesses, particularly her mother, described Mr. Gonsalves as a loving husband and father who does not commit abuse, who does not drink, smoke or abuse his wife or children. Witness Ayallo, the agency's Licensing Inspector, established that the Petitioner's family daycare home is always in compliance with relevant regulatory rules and statutes, and he corroborated the Petitioner's testimony concerning the history of disciplinary problems caused by her son. Witness Surgine, the Agency's Licensing Specialist established that the Agency only wanted to suspend the licensure because of the fact that the husband, Mr. Gonsalves, would, on occasion, be present in the home when child clients are present. The Agency did not feel that the incident justified a revocation of license. This is an unfortunate, isolated incident. The persuasive evidence of record shows that Mr. Gonsalves is not an abuser of his children, the children of others or his wife, the Petitioner. The Petitioner is operating her facility as an exemplary family daycare home and desires to continue to do so. Even though she and her family are enduring rather straitened financial circumstances, she is successfully pursuing a college degree in Early Childhood Education. The testimony of Ms. Corchado, whose son has been cared for by the Petitioner in excess of three and one-half years, corroborates the exemplary record and caring atmosphere maintained by the Petitioner in operation of her family daycare home. Ms. Corchado has tried many daycare facilities and believes that the Petitioner's is the best one she found in terms of providing a loving, positive, environment for her son. Her son "adores the Petitioner and her family" and has become very close to them, even attending church with them on occasion. The Petitioner helps her son with his school work and Ms. Corchado has never observed or learned of any abuse occurring in the home. The incident which occurred with Mr. Gonsalves and his son is clearly an isolated unfortunate occurrence. It was deeply regretted by all concerned even before the Agency Respondent became aware of it. It is ironic that the Petitioner, who has conducted an exemplary child care facility operation, has been placed at risk for losing her licensure status while other child care facilities licensed by the Respondent with more violations of record which can impinge on the adequate care of children can remain licensed under corrective plans and procedures. The Agency, commendably, has recognized the unjust, automatic operation of the statute at issue herein, in terms of the Petitioner's particular circumstances and incident, by declining to seek revocation of licensure but merely suspension until the issue of Mr. Gonsalves's residence in the daycare facility is resolved. In any event, this was unfortunate effort at child discipline which became a little too heated and went awry. As the Petitioner pithily and eloquently put it, "If you don't discipline your children, they will grow up and the police will do it for you."
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Department of Children and Family Services suspending the license of the Petitioner for the above found and concluded reasons but that the suspension be stayed while, under appropriate Department supervision, the Petitioner and Mr. Gonsalves resolve the issue of his residence within the family daycare home location possibility of the licensed daycare home being re-located to another premises or while Mr. Gonsalves acts to secure an exemption (if successful) from the above-referenced disqualifying offense. DONE AND ENTERED this 4th day of January, 2006, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with Clerk of the Division of Administrative Hearings this 4th day of January, 2006. COPIES FURNISHED: Gregory Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Sislyn Gonsalves 2820 Lake Helen Osteen Road Deltona, Florida 32738 George P. Beckwith, Jr., Esquire Department of Children and Family Services 210 North Palmetto Avenue, Suite 440 Daytona Beach, Florida 32114-3269
The Issue The issue is whether the license of Rev. Harris to operate a foster home should be terminated by the Department for the reasons stated in the Department's letter of October 7, 1988.
Findings Of Fact The Reverend Melda Harris provided foster care to children in the custody of the Department of Health and Rehabilitative Services (the Department). She became the foster parent of four siblings, Clive Davidson (born 9/30/78), Iman Davidson (born 1/1/80), Joy Davidson (born 7/24/81), and Lucky Davidson (born 12/2/83). The older children had been placed with Rev. Harris in 1985, the younger two were placed with Rev. Harris in 1987. The Davidson children had been abused by their natural parents and had been removed from their care; the extent and nature of the abuse is not clear from the testimony. A letter from Howard Marcus and Dr. Harvey Parker to the Department dated June 21, 1988, indicates that the natural parents were physically violent, the parents were frequently separated, and that ultimately the natural parents disappeared. The oldest sibling, Clive, was approximately 9 years old. He was being seen by a therapist, Art Jones, M.S.W., who was of the opinion that Clive should be separated from his siblings because of aggressiveness (physical violence), but especially because he had attempted on at least two separate occasions to simulate intercourse with his seven year old sister, Joy, while clothed. Therapy at the Henderson Mental Health Center was terminated because the therapist was of the opinion that Clive's sexual problems and propensity to act out further with his sister could not be dealt with effectively while he remained in the same home as his sister. According to Dr. Parker and Mr. Marcus, Clive engaged another little girl in simulated intercourse with him. On that occasion, both were unclothed. Joy Davidson was in treatment at the Broward County Sexual Assault Treatment Center due to her experiences with Clive. Rev. Melda Harris is a deeply religious woman who brought all the children up in a religious atmosphere. The children were actively involved in Massonic organizations where they interacted with other children. Rev. Harris selected the movies the children would watch, and generally they would watch a religious television station in the Broward County area (Channel 45), although they were not exclusively limited to that form of television. The children were also seen regularly by Ann E. Vaughn, who was their guardian ad litem for a period of four years before they were placed with Rev. Harris. Ms. Vaughn continued in that role after their placement in the Harris foster home. Ms. Vaughn would visit the home without prior appointments, there is no reason to believe that what Ms. Vaughn saw was not typical of the interaction of Rev. Harris and the children at the foster home. Ms. Vaughn was of the opinion that all the children had love and affection for Rev. Harris and that she did not concentrate her affections only on the youngest child, Lucky. The children generally stayed in the fenced-in yard at the Harris home because drug activity in the neighborhood made it unsafe for them to play in the street and because of the heavy traffic in the street outside the home. Ms. Vaughn was also worried the children's natural father would occasionally slip into the area, and Rev. Harris was concerned about leaving the children outside out the fenced area of the residence due to fear that the father might try to kidnap them. The most serious problem which the Department had with Rev. Harris occurred on August 10, 1988, when she came to the HRS office with Clive, and asked to return him to HRS custody. The Department was adamant that if she was not willing to keep Clive, the Department would remove the other children from her home in order to keep the siblings together. The Department staff took offense at Rev. Harris' action. In view of the serious consequences which could arise from further incidents of sexual acting out by Clive against his younger sister, Joy, it was entirely appropriate for Rev. Harris to be concerned about his remaining in the home, especially when the social worker assigned as Clive's therapist had resigned from the case in May of 1988 out of a belief that "Clive's sexual problems and propensity for further acting out in that manner, could not be effectively dealt with so long as he remained in the same home as his sister." (Respondent's late-filed exhibit, page 4, letter of June 21, 1988, from Howard Marcus and Harvey C. Parker, Ph.D., to Deborah Owens.) It is also significant, however, that Rev. Harris' decision to return Clive to HRS is not listed as one of the grounds the agency cited in its October 7, 1988, letter stating the Department's decision to close Rev. Harris' foster home.
Recommendation It is recommended that a final order be entered by the Secretary of the Department of Health and Rehabilitative Services dismissing the allegations contained in the letter of October 7, 1988, which forms the basis for the Department's notice of intention to close Rev. Harris' foster home (and implicitly to revoke her license to operate a foster home), and that her license be fully reinstated. RECOMMENDED in Tallahassee, Leon County, Florida, this 23rd day of July 1992. WILLIAM R. DORSEY, JR. 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 23rd day of July 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-1338 Rulings on findings proposed by the Department: The description of the children is adopted in Finding of Fact 1. The description of Ms. Andrews is rejected as unnecessary. Generally rejected because the question whether the children were allowed to eat is not at issue based on the charging document the Department mailed to Rev. Harris. Based upon the testimony of the Department's witnesses, I do not, believe that the children were not allowed to eat for an entire day, although the children may have said that. Whether the children were allowed to play outside the home and were restricted to viewing a religious television station are discussed in Findings of Fact 3 and 4. and 4. Rejected as unnecessary and irrelevant to the charges filed. The "additional concerns" are not appropriate because they are not the basis for the charge filed. Moreover, locking the children in their bedrooms was a misguided but understandable precaution given the concern about sexual acting out by Clive. The children were permitted to play outside, in their yard, and they did visit with other children especially at religious functions they attended, and at school. The children were not limited to watching a religious television channel. See, Finding of Fact 3. The allegation that Rev. Harris showed favoritism to Lucky is rejected. See, Finding of Fact 4. Precisely what it means to "speak poorly to the natural parents in front of the children" is not clear (Department proposed finding 5E). It is unreasonable to believe that the family unit could have been strengthened. The relationship with the children's natural parents has been severed by their adoption, and the removal from the custody of the natural parents appears to have been entirely appropriate. Similarly, the allegation that statements made by Rev. Harris "created concern" is difficult to understand, since there is no indication that there is any legal standard to be applied which forbids conduct by foster parents which "creates concern" among Department staff. Obviously Clive had serious problems, over and above his sexual problems, as indicated by the records placed in evidence. Surely Rev. Harris was not required to ignore instances of lying or stealing. It is by no means appropriate to conclude that Rev. Harris breached "a confidentially standard" (whatever that might be) because Ms. Johnson-Gilcort wrote that Clive "rape his sister and was no good." Ms. Johnson-Gilcort did not testify, and is not clear that Ms. Johnson-Gilcort's characterization of Clive in the letter had its source in Rev. Harris. Adopted in Finding of Fact 5. Rejected as inconsistent with the charging document, the October 7, 1988, letter. The issues for hearing were not framed in the letter dated September 12, 1988. Rejected as irrelevant to the issues framed for hearing. 9 and 10. Adopted in the Preliminary Statement. Generally adopted in the Preliminary Statement. Adopted in the Preliminary Statement, although this is not an "appeal." The testimony of Rev. Harris is addressed and generally adopted in Finding of Fact 5. Rejected as argument and irrelevant. The question is not whether Ms. Harris received a letter of August 11, 1988, but whether the Department could prove the allegations made in its letter of October 7, 1988, which it drafted, and which framed the issues for hearing. Generally adopted in Finding of Fact 4. 16 - 18.Rejected as unnecessary. COPIES FURNISHED: Jacqueline S. Banke, Esquire Department of Health and Rehabilitative Services 201 West Broward Boulevard Room 513 Fort Lauderdale, Florida 33301-1885 Rev. Melda Harris 681 N.W. 37th Avenue Lauderhill, Florida 23311 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Slye, Esquire General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue for determination is whether Petitioner's foster parent application for adoption of the minor child, S. J., should be granted.
Findings Of Fact S.J. was abandoned at birth. Moses and Juanita Pitchford served as foster parents of the child from the age of two days until March 30, 1998, when the child was over two years old. S.J. was observed by several of Respondent's employees as not behaving like other children her age. She had a flat effect, not laughing, playing or verbalizing as other children who visited Respondent's offices did. Subsequent evaluations of the child established that S.J. was developmentally delayed in speech, physical, and cognitive skills. S.J. was then referred to Easter Seals for services to assist her in the speech, physical, and cognitive skills areas. The Pitchfords' care had never been criticized in any of the Respondent's home evaluation forms completed by Gwen Tennant, the home care counselor employed by Respondent. Only when Juanita Pitchford applied to adopt S.J. did Tennant assert that Juanita Pitchford was not providing adequate care for the child. Tennant's concern was based on the fact that S.J. was not receiving the maximum exposure to an Easter Seals program for which she had qualified. The Pitchfords were never formally informed of this or any other deficiency. The evidence establishes that the Pitchfords presented S.J. at the program four days per week out of the total five days for which she was eligible. Following Respondent's denial by letter dated April 13, 1998, of Petitioner's foster parent application for adoption, Respondent has continued to place foster children, including infants, in the Pitchford home. The rights of the child's biological parents were terminated by court order dated June 17, 1997, due to their abandonment of the child. The court noted in its order that: Testimony adduced revealed that the child can and has formed a significant relationship with the parental substitute as has been established in her current foster care placement. The foster parents are the only parents she has ever known. The court's order also stated: [T]he child is currently being given excellent care by foster parents who love and care for [S.J.], and consider [S.J.] to be their child. On March 30, 1998, S.J. was removed to the home of Betty Allen, another foster parent. Allen is not married, cares for six other foster children under the age of six years, and works at a full-time job outside the home. Consequently, S.J. is delivered to day care on a regular basis for five days each week. During four of those days, she is later taken to the Easter Seals program by day care personnel for four and one-half hours. Allen cares for the foster children in her home from approximately 5:30 p.m. until 8:30 p.m. in the evening. She drops the children at day care before 8:00 a.m. each day. In contrast, Petitioner is not employed outside the home, remains there throughout the day, and is able to provide intense daily interaction with S.J.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered approving the application of Petitioner. DONE AND ENTERED this 22nd day of September, 1998, in Tallahassee, Leon County, Florida. DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of September, 1998. COPIES FURNISHED: Roger L. D. Williams, Esquire Department of Children and Family Services Post Office Box 2417 Jacksonville, Florida 32231-0083 James C. Cumbie, Esquire One Independent Drive, Suite 3204 Jacksonville, Florida 32202 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
The Issue Whether the Petitioner is entitled to renewal of a foster care license.
Findings Of Fact Petitioner, Betty Stewart, was licensed by the Department to operate a foster care home on August 5, 1991. Thereafter, until the instant matter arose, Petitioner received a renewal of this license. On August 18, 1997, the Department notified Petitioner that her license would not be renewed. The decision was based upon Petitioner's alleged failure to meet the minimum standards for foster parenting. More specifically, the denial alleged concerns with Petitioner which included: Standard housekeeping standards. Counselors have reported that your home was not kept clean. They noted a stale odor, and observed clothes piled up and roach infestations. Lack of stability in housing. The licensing record indicates that you have had at least five different residences since you were licensed in 1991. Constant moving does not provide stability for the children placed with you. Inadequate medical care for a child in our home. The counselor for a child who had been in your home indicated that you failed to get timely dental care for a child in your home that resulted in the child needing to have a tooth extracted. Additionally it was reported that you did not follow-up with getting a dermatologist's prescription filled for this same child. Concerns that your son was dealing in illegal drugs. While your son did not live with you, he was in and out of your home and having contact with the foster children in your home, which in fact could have a potentially negative impact on them. You did admit to Laura Williams, the foster parent liaison, that you were aware that he was dealing drugs. During the time of Petitioner's licensure, she was licensed at five different locations. That is, she moved from one property to another and relicensed the new location, five times in six years. Additionally, during the time of licensure, Petitioner received a "provisional license" on four occasions. A provisional license is issued when the applicant must take additional measures to comply with all licensure requirements. On four occasions the Department worked with the Petitioner so that she would obtain licensure. For each license, Petitioner executed an agreement to provide substitute care for dependent children as prescribed by the Department. This agreement required Petitioner to comply with all rules implemented for foster care homes and specifically required Petitioner to report any illness of a child to the Department. In one instance, the Petitioner failed to seek immediate dental care for a child placed in her home. The dental problem was made known to the Department when the child was caught shoplifting Oragel, an over-the-counter product used to relieve toothache. Petitioner also did not compel a child to attend counseling sessions with a licensed therapist. Petitioner was responsible for assuring that the child be given transportation to and from such sessions. Although limited to two children by license restriction, Petitioner typically had more than two children placed in her home. Given the shortage for foster care homes, the Department routinely waived the limit and placed additional children with Petitioner even though she was ill-equipped to deal with the extra children. The Petitioner's son, who is now deceased, did not reside with Petitioner during the final licensure period. Although he resided in the community near her home, there is no evidence to support a finding that he was dealing drugs from the licensed premises.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a Final Order denying Petitioner's request for license renewal as a foster care home. DONE AND ENTERED this 13th day of March, 1998, in Tallahassee, Leon County, Florida. J. D. Parrish Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 13th day of March, 1998. COPIES FURNISHED: Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard A. Doran, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Colleen Farmsworth Assistant District Legal Counsel Department of Children and Family Services 111 South Sapodilla Avenue Suite 201 West Palm Beach, Florida 33401 Betty Stewart, pro se 812 Foresteria Drive Lake Park, Florida 33403
The Issue The issue in this case is whether the Respondent, the Department of Health and Rehabilitative Services (HRS), should grant the application of the Petitioners, Charles Wenz and Janet Gallagher, for a family foster home license. 1/
Findings Of Fact Through series of circumstances, the Petitioners in this case--Charles Wenz and Janet Gallagher, husband and wife--came to know the children of a woman named N. M. 4/ Their priest told them about Nancy and her predicament. A serious drug and alcohol addict, and already the single mother of two boys (J. D., born December 30, 1977, and B. F., born January 7, 1983), each of whom had a different biological father, she was about to have another child by yet another man. The Petitioners were asked to help the family, and they agreed. Shortly after the third child--a girl, N. F., born November 4, 1988-- was released from the hospital, the mother asked the Petitioners to let the family live with them temporarily. Not long afterward, the mother slipped back to her way of abusing drugs and alcohol and left, leaving the children with the Petitioners. For some time, the Petitioners cared for the children without being licensed as a family foster home and without any financial assistance from HRS. Later, in approximately March, 1991, they became licensed as a family foster home for the specific and limited purpose of caring for the children of M. 5/ When it came to the children in their care, the Petitioners generally were very attentive to their needs for food, clothing, shelter and medical care, and they provided very well for the children, following up on all doctor appointments and the like. They were very conscientious in this regard. Generally, they got along well with the children, and the children tended to view them as if they were their real parents. As a result of their involvement with the family, the Petitioners came to know the children's maternal grandparents. While initially the Petitioners got along fairly well with the maternal grandparents, they had the opportunity to form opinions of them based on personal experience and stories related by the children and, later, by the fathers of the two boys. Essentially, the Petitioners thought the maternal grandparents were good grandparents, and they encouraged and cooperated in the maintenance of a relationship between the children and the maternal grandparents. At the same time, they did not perceive the maternal grandparents as a good option for permanent placement of the children. Besides the maternal grandparents' age and limited physical and emotional capabilities, and their lack of interest in being permanently responsible for the children on a full-time basis, the Petitioners also had a concern about what they understood to be the maternal grandfather's drinking habits. Instead, since reunification with the mother did not seem feasible to either the Petitioners or to HRS, the Petitioners felt the best option, at least for the boys, would be to investigate their reunification with their fathers. Along with HRS, the Petitioners were instrumental in locating the fathers of the boys and reestablishing contacts between them and their sons. Along with HRS, they actively encouraged and fostered the strengthening of the relationship between the boys and their fathers and worked with HRS to bring the men into a position to begin to care for their sons permanently on a full-time basis. When the Petitioners became licensed as a child-specific family foster home in approximately March, 1991, they agreed to work within the policies and procedures established by the Department and to accept supervision by a foster care counselor. There was no evidence that they were not supportive of the efforts outlined in the foster care agreement or plan. 6/ But problems between the Petitioners and the maternal grandparents developed between the time of the Petitioners' licensure and September, 1991. The problems got so bad that the HRS counselor assigned to the case had to conduct visitation in his office to ascertain who was causing the problems and how to best resolve them. The problems culminated in the maternal grandparents' ultimatum that they no longer could work with the Petitioners as foster parents and that they wanted the children placed with them, the grandparents. The problems worsened as HRS began to investigate the possibility of placing the children with the grandparents. 7/ The Petitioners were against this and attempted to use their positions as foster parents to thwart HRS efforts in that direction. A senior HRS counselor replaced the initial counselor in an effort to shepherd the grandparent placement, with its attendant visitations. But, although regular visitations by the grandparents was prearranged during the fall of 1991, 8/ the Petitioners consistently raised various obstacles to the grandparent visitations, requiring multiple interventions by the HRS senior counselor and others at HRS. Three times, despite HRS interventions, visitation had to be cancelled. The Petitioners' case was taking such an inordinate amount of time that the HRS senior counselor went to his supervisor for relief. The grandparents felt the need to go to court to have the court establish visitation over the Christmas holidays. A hearing had to be held on or about December 10, 1991, and the court granted the grandparents overnight visitation from December 25 through 30, 1991. On inquiring of the children on their return, the Petitioners believed the grandparents did not properly administer prescribed medications for two of the children and accused the grandparents of child abuse. HRS investigated and found that the grandparents had been in direct telephone communication with two of the children's doctors to resolve a discrepancy between two of their medication prescriptions and had followed the telephone instructions of the doctor in charge of the prescription. In connection with the problems with the grandparents, the Petitioners exhibited a clear tendency to try to manipulate the foster care system to their advantage, even unintentionally to the detriment of the interests of the children, and sometimes, out of overzealousness, through use of untruths and half truths. On one occasion, in an attempt to persuade the first HRS counselor not to pursue placement of the children with the grandparents, they told the counselor that an HRS protective services worker had told them that the maternal grandfather had a drinking problem. In fact, it was the Petitioners who had alleged to the protective services worker that the maternal grandfather had a drinking problem. On another occasion, to avoid allowing the grandparents to pick up the children for visitation, the Petitioners cited a supposed statute or rule making it illegal for the grandparents to provide transportation for the children. 9/ Once the boy, B. F., lost a hospital pass for use to visit his grandparents because of problems raised by the Petitioners concerning the legality of the grandparents providing transportation for him. In addition to the problems with the maternal grandparents, the Petitioners exhibited a certain tendency to take things into their own hands when closer contact and consultation with HRS would have been advisable. Once they made arrangements for one of the boys to be admitted to a psychiatric hospital without consulting with HRS and did not advise the counselor until shortly before admission. To attempt to justify their actions to the HRS counselor, the Petitioner told the counselor that the boy's family therapist strongly favored hospitalization for psychiatric treatment. In fact, the counselor later found that the family therapist only had said that it might become necessary at some point to hospitalize the boy. Once the Petitioner, Charles Wenz, used corporal punishment on one of the boys although he knew it was against HRS policy for operators of a family foster home to use corporal punishment. He explained that, due to the history of the Petitioners' relationship with these children, the Petitioners felt more like parents than foster parents and that he did not think it was appropriate in their case for the usual prohibition against corporal punishment to apply to them. Later, Mr. Wenz had another occasion to use a form of corporal punishment on the other boy. 10/ In January, 1992, the Petitioners applied to renew their "child- specific" license as a family foster home. On or about February 1, 1992, the court placed the children with the maternal grandparents, and the Petitioners converted their application to one for general licensure as a family foster home.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Petitioner, the Department of Health and Rehabilitative Services (HRS), enter a final order granting the application of Charles Wenz and Janet Gallagher for general licensure as a family foster home. RECOMMENDED this 13th day of July, 1992, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 13th day of July, 1992.
The Issue Whether Respondent's foster home license should be revoked.
Findings Of Fact There is no dispute that, at all times material hereto, Ms. Azulphar had a foster home license issued by the Department. Ms. Azulphar became a foster parent in January 1999. As with all new foster parents, Ms. Azulphar was required to complete 30 hours of Model Approach to Partnership Parenting (MAPP) training. Among other things, the MAPP training involves discussions regarding duties and responsibilities of a foster parent, the sexual problems of foster care children, and what to do if a foster care child runs away. Ms. Azulphar and the Department entered into a Bilateral Service Agreement regarding foster care. Both of them agreed to abide by the terms of the Bilateral Service Agreement. The Bilateral Service Agreement provided, among other things, the following: The Department's responsibilities to the foster parents include: * * * j. Support will be shown by responding within 24 hours to telephone messages, written correspondence or any other requests the foster parents may have. * * * Commitment to the Child The decision to accept a child into the home is a major one. . . Most foster children have experienced severe emotional, sexual and/or physical abuse as well as trauma. It is not unusual for children who have been sexually abused to act out in sexual inappropriate ways. Foster parents must be aware that these children need extra monitoring, teaching and showing of appropriate affection in order to grow into healthy children. . . By accepting a child into the home, the foster parent(s) agree to the following responsibilities: * * * d. To ensure that the child has supervision appropriate to his/her age and developmental level. * * * Foster parents have responsibilities and duties to both the department [sic] and the child. Responsibilities to the department [sic] include: * * * k. To notify the Department immediately if a child runs away, is missing or does not return home, even if the foster parent knows where the child is. * * * s. To know where and with whom the child is staying and the type of supervision the child is receiving when foster parents approve an outing or overnight activity. . . Non-compliance with any of the above provisions can result in termination of this service agreement by either the foster parents or the Department. Non-compliance with any of the above [sic] provisions may also result in the department [sic] revoking the home's license to provide foster care pursuant to Chapter 120, Florida Statutes. . . . Any person living with a foster parent is subject to a background check by the Department because such person would have contact with any foster child placed with the foster parent. Such person must not have a disqualifying criminal record1 in order for the person to remain in the foster home during the licensure of the foster home. Ms. Azulphar had a tenant, Louis Bryant, who lived in an attached room to her home, which was converted from a garage. He had his own private entrance to his room. In January 2002, the Department informed Ms. Azulphar that Mr. Bryant, not only had a criminal record, but also had a disqualifying criminal drug record and that, therefore, if she wanted to keep her license, he would have to move. Ms. Azulphar informed Mr. Bryant that he had to move. Mr. Bryant moved, and Ms. Azulphar provided documentation to the Department indicating that he had moved. Ms. Azulphar described Mr. Bryant as a long-time friend and someone that she had relied upon when she first came to the United States. Mr. Bryant was also Ms. Azulphar's former supervisor. Further, even though he was a drug addict, who was skinny and dirty, smelled bad, and needed reminding to bathe, Ms. Azulphar described Mr. Bryant as the only person upon whom she could call when she had an emergency. She also indicated that Mr. Bryant was a handy man who performed repairs for her. Ms. Azulphar admitted that, as to Mr. Bryant, she was a "co-partner." She further admitted that Mr. Bryant was someone she "needs to continue what she was doing." In spite of her reliance upon Mr. Bryant as indicated, Ms. Azulphar showed a willingness to comply with the Department's requirements by requiring Mr. Bryant to move. On or about May 8, 2002, a foster child, F.D.,2 was placed with Ms. Azulphar. F.D. was 12 years of age at the time. F.D. was a special needs foster child because she had a history of being sexually abused at an early age and because F.D.'s father was deceased and her mother had voluntarily surrendered her parental rights. F.D. was the subject of disciplinary action at school. She was suspended for ten days from school for pulling a knife on another student. During the suspension, Ms. Azulphar took F.D. to work with her. F.D. left Ms. Azulphar's workplace without Ms. Azulphar's permission and knowledge. F.D. called her friends who came to Ms. Azulphar's workplace and F.D. left with them. Ms. Azulphar discovered that F.D. was dating a young man who was much older than F.D. Ms. Azulphar believed that the young man was approximately 26 years of age because he "looked" 26 years of age and F.D.'s friends were dating young men who also looked 26 years of age. Ms. Azulphar believed that the young man was among the friends that F.D. contacted to leave Ms. Azulphar's workplace. Also, during F.D.'s suspension, on the afternoon of May 16, 2002, her Guardian Ad-Litem came to Ms. Azulphar's home to visit F.D. The Guardian Ad-Litem knocked but no one answered. F.D. emerged from a neighbor's house. Ms. Azulphar had left F.D. alone at home. Ms. Azulphar had instructed F.D. to wait for the Guardian Ad-Litem at home and to not go outside of the home. Ms. Azulphar talked with the Guardian Ad-Litem on the telephone that same day. She expressed to the Guardian Ad-Litem that she wanted F.D. out of her home. That evening on May 16, 2002, F.D. became so distraught and volatile that she took a knife and threatened to harm herself. Ms. Azulphar called the Department's emergency telephone number and was told to call the Crisis Center for Mobile Children (CCMC). Ms. Azulphar telephoned CCMC, which told her how to talk to F.D. Ms. Azulphar did as she was instructed and F.D. did not harm herself. The next day, May 17, 2002, sometime in the evening after bedtime, which was around 9 p.m., F.D. slipped out of Ms. Azulphar's home. Ms. Azulphar had taken a sleeping pill and was not aware that F.D. was gone. Around 4 a.m. on May 18, 2002, Ms. Azulphar received a telephone call from F.D., who wanted Ms. Azulphar to come and get her. Ms. Azulphar did not want to drive at that time because she had taken the sleeping pill, so Ms. Azulphar asked F.D. to have an adult come to the telephone. Ms. Azulphar believed that F.D. was at a party because of the background noise that she heard, which sounded like a party. Ms. Azulphar recognized that the person who came to the telephone was not an adult, but Ms. Azulphar requested that F.D. be permitted to stay at the person's home until 6 a.m. when she (Ms. Azulphar) would pick-up F.D. F.D. did not wait for Ms. Azulphar. She returned to Ms. Azulphar's home before Ms. Azulphar could get her. Ms. Azulphar did not call the police when she discovered that F.D. was leaving her (Ms. Azulphar's) workplace with the young man who was 26 years of age and when she received the telephone call from F.D. The reason that Ms. Azulplhar did not call the police is that she believed that the police would do more harm than good to F.D., that F.D. had had enough trouble, and that F.D. was a Haitian as she was. After F.D. returned to Ms. Azulphar's home on May 18, 2002, Ms. Azulphar contacted the Guardian Ad-Litem and requested the removal of F.D. from her home. The Guardian Ad-Litem reported the incident to the court and the court ordered an investigation and the removal of F.D. from Ms. Azulphar's home. The Guardian Ad-Litem did not know the results of the court's investigation. During the time that F.D. was in Ms. Azulphar's home, Ms. Azulphar also had, in addition to her own child, T.A., two other foster children, A.A. and her sister, V.A.3 All of the other children agree that F.D. could not be trusted, was a thief, and did not tell the truth. After F.D. was removed from her home, Ms. Azulphar had another foster child placed in her home, who ran away. However, this time, Ms. Azulphar contacted the police and the Department when she discovered that the child had run away. Sometime during the first two weeks that F.D. was placed with Ms. Azulphar,4 the Department's social worker for F.D., Luis Muriel, was making arrangements with Ms. Azulphar to pick-up F.D. Ms. Azulphar requested Mr. Muriel to come to her workplace since F.D. would be there with her; however, he wanted Ms. Azulphar to leave F.D. at home alone. Ms. Azulphar reminded him that she was not to leave F.D. at home alone. However, Mr. Muriel instructed Ms. Azulphar to leave F.D. at home alone and informed Ms. Azulphar that he would be arriving at her home in 30 minutes. Ms. Azulphar contacted a male friend, who was approximately 50 years of age, for assistance and requested that he wait at her home for Mr. Muriel, who would be arriving in 30 minutes. However, she instructed her friend to wait outside in his car, not in her home, and he agreed to do so. When Mr. Muriel arrived at Ms. Azulphar's home and knocked on the door, Ms. Azulphar's friend opened the door. Ms. Azulphar's friend had not complied with her instructions and had gone into her home while F.D. was in the home. The Department had not performed a background check on Ms. Azulphar's friend. There was no reason for the Department to perform a background check on Ms. Azulphar's friend since it was never intended by Ms. Azulphar that he would have contact with the foster children placed with her. As to the incident, Ms. Azulphar had made it clear to her friend that he was not to go inside the home. On May 29, 2002, around 8 p.m., the licensing counselor for Ms. Azulphar's case, Reynaldo Gonzalez, made an unannounced visit to her home after being contacted by F.D.'s Guardian Ad-Litem regarding F.D.'s situation. By that time, F.D. had been removed from Ms. Azulphar's home. Mr. Gonzalez noticed a car parked outside of the house. He knocked on the door. The foster child A.A., who was approximately 15 years of age at the time, looked through the window and informed Mr. Gonzalez that Ms. Azulphar was not at home. Mr. Gonzalez returned around 8:30 p.m. and A.A. was still at home alone. Ms. Azulphar had left A.A. at home alone. However, Mr. Gonzalez's primary concern was not A.A.'s being at home alone. On the following day, around 6:20,5 Mr. Gonzalez returned to Ms. Azulphar's home because the Department had received anonymous information that no food was in the home. The same car was parked outside Ms. Azulphar's home, but the front of the car was parked in a different direction. Ms. Azulphar was not at home, but a relative, who was there, permitted Mr. Gonzalez to enter. Mr. Gonzalez found that there was adequate food in the home. None of the foster children were at home; they were with Ms. Azulphar. Mr. Gonzalez's testimony failed to indicate whether the car was parked along the street or in the driveway. An inference is drawn that the car was parked along the street. Ms. Azulphar voluntarily admitted to Mr. Gonzalez that Mr. Bryant was the owner of the car. She wanted Mr. Bryant to park his car outside her home to make it look as if someone were at home because her home had been burglarized when no one was at home. Further, on one of the days referred to, Mr. Bryant's car was either in disrepair or out of gas.6 According to the Department, Mr. Bryant should not have parked his car in front of Ms. Azulphar's home on the street. However, the evidence fails to demonstrate that such conduct by Mr. Bryant involved contact with the foster children. Ms. Azulphar admits that, at times, Mr. Bryant accompanied her shopping even when the foster children were with her. Ms. Azulphar also admits that Mr. Bryant has cut her grass, but only when she was at home. Ms. Azulphar testified that she obtained the approval of the Department for cutting the grass even though no Department witness recalled approving the action. Ms. Azulphar's testimony is found to be credible. Ms. Azulphar used poor judgment as it relates to Mr. Bryant. At first, Ms. Azulphar believed that, even though Mr. Bryant could not continue to be a tenant, she could continue to have Mr. Bryant to assist her with some things. She now knows that, as long as she has foster children, the Department does not want him to be around the children at any time. Ms. Azulphar believed that nothing was wrong with Mr. Bryant parking or leaving his car at her house. Now, she knows that the Department does not want him to be near her home when she has foster children. A.A. and V.A. were removed from Ms. Azulphar's home when the Department decided to revoke her foster home license. Both A.A. and V.A. want to return to Ms. Azulphar's home. Ms. Azulphar's daughter is in complete agreement with her mother being a foster parent and wants A.A. and V.A. to return.
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 dismissing the revocation action of the foster home license of Marie Claire Azulphar. DONE AND ENTERED this 30th day of April, 2003, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of April, 2003.
