The Issue The issue presented is whether Petitioner's foster care license should be renewed.
Findings Of Fact At all times material hereto, Petitioner was licensed by the Department to provide foster care for one child in the age group of 6 to 10. During the months of November and December, 1999, however, the Department had three infants and one toddler in Petitioner's care at Petitioner's small home. The youngest child placed in Petitioner's home by the Department was Domenica. When she was placed there, the Department did not tell Petitioner that Domenica had immune deficiency disease. On October 16, 1999, Petitioner's landlord began renovating the house. Over time, the central air conditioning system was replaced. When the workmen were on the roof making repairs, one of the workers stepped through a spot where the wood underneath was rotten, creating a hole in the kitchen ceiling. Wood around doorjambs unexpectedly needed replacement. As a tenant, Petitioner had no control over the speed with which the renovations to the house were accomplished. While the work was underway, the new kitchen appliances were stored in Petitioner's living/dining area. Although the house had three bedrooms, it was a small house. The extra appliances made the living/dining area very cluttered. The replacement bathtub and toilets were placed in the yard until they could be installed. At some points construction debris also lay in the yard until it could be removed. The only other items in the yard were a barbecue made from trashcans and several trash bags full of beer cans and soda cans that Petitioner collected when she went walking and later sold for extra money to spend on the children. During the morning of November 7, 1999, Petitioner took Domenica to a clinic where the doctor directed Petitioner to take her to the hospital. The child was very sick and was admitted to the hospital. While she was at the hospital with the infant, Petitioner's mother passed away. The following day a Department employee made an unannounced visit to Petitioner's home. That employee noted that the yard was cluttered and the house was cluttered and dirty. She told Petitioner to clean her house, which Petitioner did. While attending her mother's funeral, Petitioner learned that one of her sons had terminal cancer. That son came to stay at Petitioner's home the Friday before Thanksgiving and was there through the end of December, except for several hospital admissions during that time period. On December 27, 1999, three Department employees went to Petitioner's house for an unannounced site visit. The two who testified at the final hearing thought it noteworthy that Petitioner made them wait while she searched for her keys before admitting them. They also testified that a dog in the front yard had fleas. The dog was not Petitioner's. When Petitioner admitted the three employees, she had just finished taking down the Christmas tree and was in the process of cleaning the living/dining area. She held a large trash bag in her hand and continued putting the wrappings and boxes from gifts into the trash bag. The Department employees looked at tar from the roof that had been tracked onto the carpet and determined that it was dog feces. They noted that the house was very small and cluttered and saw the hole in the ceiling in the kitchen. They determined that the house was not safe for children. They saw the bathroom fixtures and the beer cans and soda cans in the yard and determined that the yard was not safe for the children to play outside. No consideration was given to the fact that the house was undergoing renovations or the fact that it would be unusual for anyone to have infants playing in a yard. Although the employees concluded that Petitioner's home constituted an "unsanitary" condition, they did note that the bedroom and bathroom used for the children were clean, that the sheets in the cribs were clean, and that the children's clothes were clean and neatly folded. Petitioner had placed one of the infants in a child seat in the living area so she could watch him while she was cleaning the house. One of the Department employees unreasonably feared that Petitioner could not get to the child quickly enough if there were a problem, due to the clutter. The child in the dining/living area was the only one at home when the Department's employees were there. Petitioner's sister had taken the other children to her home so that Petitioner could clean the house after Christmas. Petitioner's sister was her Departmentally-approved back-up, i.e., someone approved to care for the children if Petitioner were unable. Petitioner did not know that since her sister had just recently closed her own foster home, which had been licensed by the Department, her sister was no longer permitted to have Petitioner's foster children in her home but could only look after them in Petitioner's home. The Department employees went to Petitioner's sister's home and determined that the children were safe. They summoned other Department employees to remove the children from the care of both Petitioner and Petitioner's sister. A Department caseworker visited Petitioner's home on August 11, 1999; October 20, 1999; and November 17, 1999. That employee filed with the Department reports verifying that the condition of the home was acceptable; that the environment was safe for the children; that the children were healthy and well fed; that there were no signs of neglect or abuse; and that the children were appropriately placed in Petitioner's home. The forms completed by that caseworker contain an acknowledgement that the forms were accurately and truthfully completed under penalty of termination of employment. Petitioner now lives in her mother's home, which is much larger than the house she was renting.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered granting Petitioner's request to renew her foster home license. DONE AND ENTERED this 8th day of January, 2001, in Tallahassee, Leon County, Florida. LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of January, 2001. COPIES FURNISHED: Mary Lyles 14501 Polk Street Miami, Florida 33176 Rosemarie Rinaldi, Esquire Department of Children and Family Services 401 Northwest Second Avenue, N-10-14 Miami, Florida 33128 Virginia A. Daire, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard, Room 204 Tallahassee, Florida 32399-0700
The Issue Whether Respondents' application for renewal of their family foster home license should be denied on the grounds set forth in the agency's August 16, 1995, letter to Respondents?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: The Department is a state government licensing and regulatory agency. At all times material to the instant case, Respondents Jose and Emma Perez were licensed to operate a family foster home at their residence in Hialeah, Florida (hereinafter after referred to as the "licensed home"). Before obtaining their license, Respondents were required by the Department to sign an "Agreement to Provide Substitute Care for Dependent Children" (hereinafter referred to as the "Agreement"). Respondents signed the Agreement on or about July 1, 1994. In so doing, they agreed that they would, as licensed foster parents, among other things, "comply with all requirements for a licensed substitute care home as prescribed by the [D]epartment." 1/ On or about January 13, 1995, Respondent Jose Perez was involved in a physical altercation with his brother-in-law. The altercation took place in the licensed home. 2/ The brother-in-law was living with Respondents in the licensed home (on a temporary basis) at the time of the incident. 3/ During the altercation, Jose threw a glass object in the direction of his brother-in-law. The object hit a wall and shattered upon impact. A piece of flying, shattered glass accidentally struck Respondents' daughter, Jessica, 4/ who was sleeping in her bedroom. Jessica sustained a cut on her forehead. Jose was subsequently arrested for aggravated battery by the Hialeah Police Department. 5/ Some time after the incident, the Department placed two foster children, A.A. and H.A., in Respondents' care. In the summer of 1995, Respondents filed with the Department an application to renew their family foster home license. The application was ultimately assigned (for review and investigation) to John Gallagher, a senior (foster) licensing counselor with the Department. On July 19, 1995, Gallagher went to the licensed home. Outside the home, on the northwest portion of Respondents' property, Gallagher observed a considerable number of, what appeared to be, discarded items. Inside the home, the floors were dirty and littered with a large amount of trash. On the floor in one of the rooms was dog feces, which Gallagher instructed Respondents to "pick . . . up immediately." During his visit to the licensed home on July 19, 1995, Gallagher had Respondents sign a "Bilateral Service Agreement," which was similar, but not identical, to the Agreement that Respondents had signed the year before. All of the necessary paperwork, however, was not completed during the visit. Upon leaving the home, Gallagher told Respondents that he would stop by again at the end of the day or on the following day to finish the paperwork. At 9:00 a.m. the next day, July 20, 1995, Gallagher returned to the licensed home. He was accompanied on this visit by Maria Siervo, another (foster care) licensing counselor with the Department. The conditions both outside and inside the home were not materially better than they had been the day before when Gallagher had paid his first visit to the home. In the clutter outside the home on the northwest portion of the property was a bucket (with no top or covering) that contained broken glass and a discarded baby diaper. On a table outside the home was a baby bottle containing congealed milk. Both the bucket and the bottle were readily accessible to A.A., the older of the two foster children in the licensed home. (A.A. was approximately two years of age.) Inside the home, the floors were still covered with a considerable amount of dirt and trash. They obviously had not been swept or mopped. A.A. was walking around on these floors without any shoes or socks on in her bare feet. There was a freestanding fan in the bedroom that A.A. and H.A. shared that did not have a protective covering. When Gallagher was in the bedroom, he saw the fan operating and A.A.'s fingers come within a few inches of the fan's exposed, moving blades. Gallagher instructed Respondents to either obtain a protective covering for the fan or remove it from the home. There were no screens on the windows of the home to keep insects out of the living area. 6/ In addition, two doors to the home were "wide open" throughout Gallagher's and Siervo's visit. H.A. was in a playpen that was old and dirty. In Gallagher's presence, a cat with sharp claws (which was not Respondents') started climbing up the side of the playpen. The cat was removed from the premises, however, before it was able to join H.A. in the playpen. The cat was not the only animal in the home on July 20, 1995. Gallagher also discovered newborn puppies underneath a bed in the home. Gallagher and Siervo spoke with Respondents during their July 20, 1995, visit about the unclean, unhealthy and hazardous conditions that existed in the licensed home. They asked both Respondents why the home was not clean. Jose responded by stating that he worked all day and that it was his wife's responsibility to clean the home. Emma stated that she was planning on cleaning the home, but that she was "lazy" and had not yet gotten around to it. Later that same day, after he and Siervo had left the licensed home, Gallagher reported what he had observed on his two visits to the home to the Department's abuse hotline. Two additional reports, both alleging that there was violence in the home, were subsequently made to the abuse hotline. All three reports were assigned to Darlise Baron, a protective investigator with the Department, for investigation. As part of her investigation, which began on March 20, 1995, Baron visited the licensed home. Conditions had improved since Gallagher's and Siervo's visit to the home on July 20, 1995. As Baron stated in her investigative report: Upon PI['s] arrival at address . . ., PI did not see any immediate danger for the children. The family had clean[ed] up the house. The floor was swept, kitchen was clean, no dirty dishes in the sink or around kitchen, the bathrooms were clean, the children's room was clean, the beds [were] made w/clean sheets. Mom['s] room had clean clothes on the bed being folded to be put away. There was dog feces seen on the floors. The large bags of garbage w[ere] placed on the curb, which was fil[l]ed w/clothes and grass. The fan w/out cover was placed in mom's room w/door close[d] to be thrown away. The dirty baby's bottle was not seen. . . . Nonetheless, in view of the information that she had concerning the conditions that had previously existed in the home and the incident that had occurred in the home involving Jose and his brother-in-law, 7/ Baron determined that the reports that were the subject of her investigation should be classified as proposed confirmed and she so indicated in her investigative report. 8/
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department enter a final order denying Respondents' application for the renewal of their family foster home license, without prejudice to Respondents applying for a new license after July 31, 1996. 12/ DONE AND ENTERED in Tallahassee, Leon County, Florida, this 18th day of March, 1996. STUART M. LERNER, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of March, 1996.
The Issue The central issue in this case is whether the Petitioners are entitled to the renewal of their foster care license.
Findings Of Fact At all times material to this case, the Petitioners operated a shelter foster home in Dade County, Florida, pursuant to a license that was issued by the Department. Mr. Ezewike investigated allegations of neglect at the Petitioners' home. According to Mr. Ezewike, children residing at the home were left without adult supervision. Such children ranged in ages from a few months to teenager. Mr. Welch investigated allegations of verbal abuse against Petitioners. The report of these allegations was closed without classification. Thus the Petitioners were not identified as the perpetrators of verbal abuse. According to Mr. Blum, who also visited the home, children residing with the Petitioners were left without adult supervision. Mr. Blum observed that the interior of the house was dirty and messy. His report concluded that there were some indications of conditions hazardous to health as a result of the unkept home. Mr. Blum further observed that a refrigerator at the Grice home was encircled by a chain with a lock which prevented it from being opened. Mr. Blum also observed and overheard an interaction between Mr. Grice and some of the foster children. According to Mr. Blum, Mr. Grice used harsh and inappropriate language with the children. Jackie Hodge, supervisor of the licensing unit, received a report from another worker responsible for supervising the Grice foster home. Such report cited Mr. Grice for inappropriate and harsh language. According to Ms. Hodge, licensing standards, including the quality of care and supervision provided by foster parents, must be a part of the evaluation to determine the suitability of a home during a relicensing review. According to Ms. Hodge, the Department does not permit foster parents to be verbally abusive, including harsh or inappropriate language, with the children in their care. Ms. Hodge further explained that the condition of, and cleanliness of, the home are also part of a relicensing evaluation. Based upon the Department's practice, the failure to meet any of the licensing standards is grounds for denying a renewal of license. Ms. Hodge recommended that the Petitioners' home not be relicensed. Petitioners were timely notified of the Department's denial and timely requested an administrative review.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Department of Health and Rehabilitative Services enter a final order denying Petitioners' request for licensure renewal. DONE AND RECOMMENDED this 6th day of January, 1994, in Tallahassee, Leon County, Florida. Joyous D. Parrish 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 6th day of January, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-4951 Rulings on the proposed findings of fact submitted by the Petitioners: 1. None submitted. Rulings on the proposed findings of fact submitted by the Respondent: 1. Paragraphs 1 through 14 are accepted. COPIES FURNISHED: Hilda Fluriach District 11 Legal Office Department of Health and Rehabilitative Services 401 N.W. 2nd Avenue, N-1014 Miami, Florida 33128 Willie and Geraldine Grice 18830 N.W. 43rd Avenue Carol City, Florida 33055 Kim Tucker General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Robert L. Powell Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Bonita Jones-Peabody The Executive Building 3000 Biscayne Boulevard Suite 300 Miami, Florida 33137
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 Whether Petitioner’s application for licensure as a foster home should be granted.
Findings Of Fact The Department is the state agency responsible for licensure of foster homes. In carrying out its licensure duties, the Department contracts some license processing functions to FamiliesFirst Network. In turn, FamiliesFirst subcontracts with Children’s Home Society to perform a variety of license processing functions. In this case, Children’s Home Society was the organization that initially reviewed Petitioner’s 2007 licensure application. In 1984, prior to her employment with the Department, Petitioner married a man in the military. Petitioner testified that the marriage was one of convenience for both parties and, while legal, was not a true marriage since the marriage was never consummated. Petitioner’s explanation regarding the benefit each got from the marriage was vague. In essence, Petitioner characterized her marriage as a way for her to get out of financial difficulty. She testified that a soldier approached her and offered to pay her bills if she would marry him so that he could live off base. However, Petitioner legally divorced her husband in 1988 when she learned that he had contracted AIDS. Since at least 1997, Petitioner was employed by the Department. At some point, she was employed as an Economic Self-Sufficiency Specialist I (ESSI). As an ESSI, Petitioner generally handled applications for food stamps and interviewed clients to determine eligibility for food stamps, Medicaid and cash assistance benefits. In 1999, while employed with the Department, Petitioner applied for licensure as a foster home. On the initial licensing application in 1999, Petitioner wrote in the marital history section, “I am single and have never been married.” On the foster family self-study, Petitioner left her marital history blank. Furthermore, Petitioner marked “n/a” for ‘not applicable’ in the section regarding her divorce. That information was incorporated in the initial licensing study compiled by Children’s Home Society on April 28, 1999. Clearly, the statements made by Petitioner in her 1999 application and the information she provided to the Department during the application process were false since she had been married and divorced. Petitioner also completed a licensure self-study form in April 2001. In the sections regarding her marital history, Petitioner marked “n/a” for ‘not applicable,’ incorrectly indicating that she had never been married or, in some manner, the section on marriage did not apply to her. Again, the information was false. In another licensure self-study in September 2001, Petitioner left her marital history blank. Similarly, Petitioner left the marital history section blank on a personal profile form completed by her in 2001. That document was updated in 2003 and the marital history section was again left blank. In March 2003, Petitioner again marked “n/a” in the marital history section of a licensure self-study form. At about the same time, Petitioner also completed a questionnaire as part of the home-study process performed by FamiliesFirst Network. One of the questions called for a box to be checked as to how a previous marriage ended. Petitioner did not check any of the answers or indicate that she had been divorced. The lack of response is particularly troubling since Petitioner had indicated at least once that she had not been married, at least twice that the marital history sections on various forms did not apply to her based on her rationalization that the marriage had never been consummated, and at least once that the divorce history section did not apply to her. However, Petitioner knew that she had been legally married and legally divorced. Indeed, the fact of her divorce was not affected by the lack of consummation of the marriage; her ostensible rationale for not recognizing her marriage was from a religious point of view. These misrepresentations were material to the review of her fitness for licensure. Finally, in her 2005 application, Petitioner did indicate to the person who was processing her application that she was married. The provision of the correct information by Petitioner in 2005 occurred after the processor inquired and pursued questions about Petitioner’s marital history and does not mitigate Petitioner’s past multiple misrepresentations regarding her marital and divorce history. At hearing, Petitioner acknowledged that she provided inconsistent information about her prior marriage. She was concerned that her marriage was coming back to haunt her. She stated, “I didn’t know that it was going to come back and bite me.” However, such concern does not mitigate the fact that Petitioner failed, on multiple occasions, to disclose her divorce and marriage to the Department. As indicated above, Petitioner was also employed by the Department during the time she was seeking licensure as a foster home. Unfortunately, throughout the time that Petitioner was employed, she developed a very troubled relationship with the Department and, in particular, with Katie George, the Department’s General Counsel. Petitioner’s difficulty with the Department resulted in several legal cases against the Department in which Ms. George represented the Department. These cases extended over a five-year period. The cases involved two small claims cases requesting reimbursement for sodas and copying costs that arose out of five other litigations before the Public Employees Relations Commission. The two small-claims lawsuits seeking reimbursement for out-of-pocket expenses, including sodas and photocopies, were dismissed by the Court. The evidence demonstrated that Petitioner was terminated twice by the Department. Petitioner contested her first dismissal before the Public Employees Relations Commission. Petitioner’s first dismissal was overturned by the Public Employees Relations Commission on a legal technicality. The Commission specifically noted that they neither condoned nor agreed with malfeasance in office but had to grant a double- jeopardy type exception since the Department had originally suspended Petitioner for malfeasance in office and then attempted to increase the discipline it had imposed to dismissal of Petitioner. Petitioner was reinstated to her position by the Commission and back pay was ordered. As part of the back-pay case with the Public Employees Relations Commission, the Petitioner was denied reimbursement for private cash advances and private auto insurance expenses that she claimed the Department owed to her as part of her wages. Petitioner’s second termination was for conduct unbecoming a public employee and involved outrageous and bizarre behavior towards a client of the Department who had applied for Medicaid and food stamps. During the incident Petitioner berated, belittled and treated the client so poorly that he was reduced to tears and would not return for food stamps when it was time to renew the same. The client prayed with Petitioner inside her office. The client described Petitioner as chanting and acting so strangely that he abruptly ended the prayer by saying “amen.” Additionally, Petitioner told the client that she understood how he felt and that the Department was out to terminate her because some of her co-workers thought she was crazy. She also told the client the Department had tried, but failed, to terminate her before. The client eventually filed a complaint with the Department regarding Petitioner and her behavior during the interview with the client. Later, Petitioner called the client at his unlisted phone number that she could only have obtained through Departmental records and tried to intimidate the client into changing his complaint or not testifying. Based on this incident and some other incidents regarding Petitioner’s work, the Department dismissed Petitioner a second time. Petitioner, again, contested her dismissal before the Public Employees Relations Commission. The dismissal was upheld by all the Courts who heard the case and eventual appeals. The nature of the litigation and the eventual outcome are illustrated in the Public Employees Relations Commission Hearing Officer’s Recommended Order dated February 10, 2003; the Public Employees Relations Commission Final Order dated March 17, 2003; the per curiam affirmed opinion of the First District Court of Appeal dated February 18, 2004; the Order of the First District Court of Appeal denying rehearing dated April 5, 2004, and the Order of the Supreme Court of Florida dismissing review dated May 19, 2004. In addition, Petitioner filed a federal employment discrimination lawsuit against the Department. The suit was based, in part, on her earlier termination. During the course of the federal litigation, depositions were taken. During those depositions, Ms. George learned that Petitioner had falsified her application with the Department because she had previous jobs from which she had been fired that were not listed on the application. However, the Department was represented by outside risk counsel, who negotiated a $5,000.00 settlement payment to Petitioner. The settlement was accepted by the Department based on the nuisance value of continued litigation of the case. The Department did not admit any discriminatory action towards Petitioner in its termination of her. At some point after her second termination, Petitioner visited Ms. George’s legal office at the Department. Petitioner visited the office to either pick up or deliver some papers. However, testimony was not clear on the exact nature of the visit and what occurred during Petitioner’s visit. Testimony did establish that Petitioner became disruptive in the office towards Ms. George’s legal staff. Petitioner was asked to leave and initially refused. Eventually, Petitioner left the office after Ms. George instructed her staff to call law enforcement. Petitioner also filed a complaint with the Florida Bar regarding Ms. George’s representation of her client. The Bar complaint against Ms. George was dismissed by the Florida Bar. Finally, during this proceeding, Petitioner accused Ms. George of sending law enforcement to Petitioner’s house. Ms. George did not take such action against Petitioner. Given all of these incidents, Petitioner’s troubled employment history and litigation with the Department, the evidence demonstrated that, in the past, Petitioner has not worked cooperatively with the Department and seems to have developed a difficult and suspicious relationship with it. Based on this history, the evidence did not demonstrate that Petitioner could, presently or in the future, work cooperatively with the Department as a foster parent. The 2007 application was reviewed by Nicola Spear. Ms. Spear works in the licensing section of FamiliesFirst Network. She compiled the November 2007 foster parent licensing home-study on Petitioner. After reviewing the application and completing the home-study, Ms. Spear recommended that Petitioner’s license application be granted by the Department. Ms. Spear was unaware of the Petitioner’s history regarding the Department or her prior statements regarding her marriage and divorce. She subsequently learned the reasons why Petitioner was terminated from her employment with the Department, including inappropriate client interactions. Once the Department learned of Petitioner’s application and the initial recommendation of Ms. Spear, either Ms. George or administrative staff called a meeting with its contractors and Ms. Spear to review the recommendation and provide information regarding Petitioner’s history with the Department. After receiving the information, Ms. Spear changed her recommendation and recommended that Petitioner not be licensed as a foster parent. Ms. Spear testified that while Petitioner was very cooperative during the licensure process, she was concerned that Petitioner might not be able to work cooperatively with the Department or its contracted partners. Mary Martin, a licensing specialist with the Department, received Petitioner’s licensing packet from Ms. Spear. Ms. Martin was made aware that Petitioner had been dismissed from the Department, had a history of difficulties with the Department and of Petitioner’s lack of candor regarding her marriage and divorce. Ms. Martin also learned from Ms. Oakes, a contractor for the Department, that in 2002, Ms. Oakes had instructed her staff to call law enforcement to a visitation between foster children and their parent because Petitioner wanted to participate in the court-ordered closed visit and would not leave the visitation site at Children’s Home Society. However, the contractor who supplied this information did not witness the incident. The person who was present during the alleged incident did not testify at the hearing and all the testimony regarding the incident was based on hearsay. Additionally, Petitioner was not aware that law enforcement had been called since Petitioner voluntarily left the visitation before the police arrived. Given the hearsay nature of the facts surrounding the visitation incident, the incident cannot provide a basis for denial of Petitioner’s application. On the other hand, Ms. Martin found Ms. Peagler hostile to work with during the interview process with her. Ms. Martin did not feel that Petitioner could work cooperatively with the Department and could not be trusted to provide accurate information to the Department. She recommended denial of Petitioner’s 2007 application. Ultimately, Petitioner’s foster home application was denied on February 18, 2008. The basis for denial was her false statements, her history with the Department, and her intolerance and inflexibility with the Department. Currently, Petitioner is self-employed as a provider of services to persons with developmental disabilities. She is licensed through the Agency for Persons with Disabilities (APD). There was no evidence that Petitioner had difficulty working with APD. The evidence also did not show that Petitioner had a long and troubled relationship with APD or that APD was aware of Petitioner’s misrepresentations regarding her marriage and divorce. Robin Woods Reshard testified generally about her friendship with Petitioner. Although she works with school-age children, she never worked with or for the Department. Ms. Reshard primarily knows Petitioner through their Church. She speaks highly of Petitioner, although finds her to be stubborn, at times. She thinks Petitioner would make an excellent foster parent. However, given the facts of this case regarding Petitioner’s multiple litigations with the Department, her general suspiciousness regarding the Department and its personnel, her misrepresentations regarding her marriage and divorce, and her mistreatment of a client of the Department, her good work with APD and Ms. Reshard’s recommendation do not demonstrate that Petitioner can now work cooperatively with the Department or can be trusted by the Department to be honest with it in fostering children. Both of these qualities are necessary for successful licensure as a foster home. Therefore, Petitioner’s application for licensure as a foster home should be denied.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services enter a Final Order denying the application of Robin Peagler for foster home licensure. DONE AND ENTERED this 4th day of December, 2008, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of December, 2008. COPIES FURNISHED: Eric D. Schurger, Esquire Department of Children and Family Services 160 Governmental Center, Suite 601 Pensacola, Florida 32501-5734 Robin Peagler 1011 West Chase Street Pensacola, Florida 32501 Gregory Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 George Sheldon, Interim Secretary Department of Children and Family Services Building 1, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John J. Copelan, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Are the Respondents entitled to renew their license to operate a family foster home?
Findings Of Fact Respondents held Family Foster Home License No. 059520, effective from May 18, 1995 through May 18, 1996. The license was not renewed based upon allegations in this case. At times relevant, Respondents provided foster care to F.J., who was thirteen when the hearing was conducted, to V.K. who was eight when the hearing was conducted, and to F.J. and V.K.'s two younger brothers. The children lived with the Respondents for approximately six and one-half years. Although F.J. is thirteen years old, she is a developmentally disabled child with an I.Q. in the range of 46 to 58. Her mental and developmental age is less than eleven years. On May 30, 1995 an investigation was begun concerning alleged sexual abuse of F.J. by James Comer. This led to the removal of the children from Respondents' home. On May 30, 1995 F.J. described James Comer's sexual misconduct to Brenda Mims, a human services counsellor for Petitioner. At that time F.J. told Mims that James Comer had touched her breast and felt on her. When F.J. described the contact which James Comer had with her, F.J. put her hands on her breast to demonstrate. She did not describe the point in time when this happened. On that date Mims interviewed Mary Comer concerning the allegations by F.J.. Mary Comer confirmed that F.J. had told Mary Comer that James Comer was "bothering her" and F.J. wanted it to stop. Mary Comer indicated that she thought that F.J. was referring to a "tickling incident". Mary Comer told Mims that she had confronted James Comer about the tickling and asked him to stop tickling F.J.. When Mary Comer spoke to Mims, she referred to F.J. coming to her and saying that "Dada" was bothering F.J.. The term "Dada" is the name the children used to refer to James Comer. The children referred to Mary Comer as "Granny". On June 7, 1995 Mims talked to F.J. again. At that time F.J. was concerned that James Comer not be able to find her in her new home. Assurances were given that James Comer could not find her. On this occasion F.J. told Mims that James Comer "would feel on her" and she didn't like it. In this conversation F.J. described fondling James Comer's penis. F.J. stated that James Comer would hit her with his fist sometimes if F.J. wouldn't cooperate with his advances. F.J. described a big roll of money that James Comer would give her if F.J. would cooperate with him. Otherwise James Comer would not give F.J. money. According to Mims, F.J. said that James Comer would give her money if F.J. would "be with him". In the June 7, 1995 discussion F.J. and V.K. told Mims that Mary Comer tried to prohibit James Comer from bothering F.J. and James Comer began to beat Mary Comer. Following such incident, the police were called, but James Comer was not removed from the home. In the June 7, 1995 conversation V.K. told Mims that on one occasion V.K. peeked out the door and saw F.J. lying on James Comer while he was seated in the reclining chair. Deborah Gipple is a licensed mental health counselor who has experience in counseling child victims of sexual abuse or other trauma. Gipple began counseling F.J. in November, 1995 and continued the counseling to the date of hearing. Gipple observed in F.J. conduct which is consistent with a child who has been sexually abused. This included F.J. exposing herself, rubbing against other children, problems in the classroom and at home concerning the need to follow directions, and a distrust evidenced by sneaking about doing things that were not necessary to avoid detection, such as sneaking about and removing food. F.J. told Gipple that James Comer touched between F.J.'s legs and touched her breast. F.J. further stated that James Comer had her lay on top of him. F.J. told Gipple that sometimes James Comer would come in the night and take F.J. from her bed. In these conversations Gipple observed that F.J. was aware that James Comer's actions were wrong. In these discussions F.J. stated a concern about her sister V.K. and the possibility that James Comer would harm V.K.. V.K. was competent to testify when she testified at hearing. On one occasion when V.K. was in the hallway with her brothers at night she looked in the T.V. room and saw F.J. on top of James Comer while he was seated in a reclining chair. V.K. described that F.J. was moving her body and doing "nasty stuff". On another occasion V.K. was outside the house and observed F.J. and James Comer in the T.V. room. As V.K. describes it, F.J. was playing with James Comer while he was sitting down. F.J. was on James Comer's lap. V.K. did not give exact details concerning what F.J. and James Comer were doing. Concerning these two instances, V.K. recalls that Mary Comer was not home on the first occasion. V.K. has no recollection concerning Mary Comer's whereabouts on the second occasion. V.K. had been subjected to corporal punishment by James Comer when living in his home. She also observed James Comer administer corporal punishment to her two brothers. In the June 3, 1996 video that was made to record F.J.'s remarks concerning James Comer, together with statements she made to others, F.J. demonstrates sufficient appreciation of the meaning of the duty and responsibility to tell the truth to warrant a finding that she was competent for that purpose. In the video she describes that James Comer made her touch his "private parts". She did not describe the period of time over which the sexual contacts were made between James Comer and F.J. She did recount how these events had occurred on a number of occasions. On one occasion her clothes were off when James Comer touched her. In the video tape F.J. describes that James Comer had touched her breast and genital area by pointing to those areas on her body. F.J. identified that the occasions when she was inappropriately touched occurred when Mary Comer was not at home. In the video F.J. refers to the fact that she told Mary Comer about being touched by James Comer, but that Mary Comer did not believe her. By October 1995 F.J., V.K. and their brothers had been placed in the foster home of Roberta Graham where they presently reside. While living with Graham, F.J. told Graham that "Dada", referring to James Comer, was touching F.J. in wrong places, that he touched her on her breasts, and that he took her hand and massaged his "private part", referring to his penis. F.J. told Graham that this happened when Mary Comer went out to get drinks. F.J. told Graham that the other children were outside playing and the door was locked and James Comer and F.J. were inside when events occurred. F.J. mentioned to Graham that an incident happened at night when everyone was in bed and "Dada" called F.J. out alone and then the other children, her brothers and V.K. came out of the room. This is the night time incident V.K. testified about. This incident at night occurred when Mary Comer was not at home. F.J. told Graham that on one occasion James Comer removed F.J.'s clothes when she came out of the bathroom after blocking the door to prohibit F.J.'s exit. F.J. expressed concern to Graham that "Dada" was going to turn from doing things to F.J. to doing things to V.K.. F.J. told Graham that she had reported James Comer's actions to Mary Comer in saying that she told "Granny". F.J. stated to Graham that when F. J. told Mary Comer, she, (Mary Comer) said, "If you tell anyone, you will have to leave". F.J. made the remarks about James Comer's inappropriate conduct approximately thirty times to Graham and was consistent about the facts reported. The remarks by F.J. on the video tape and to Mims, Gipple and Graham which have been recited concerning James Comer are credited as true. Following the accusations about James Comer's sexual misconduct directed to F.J., Petitioner through its employees, Esther Tibbs and Judy Parks, met the Respondents on February 5, 1996 to advise Respondents that Petitioner intended to revoke the foster care license. The grounds for seeking revocation were related to the sexual misconduct by James Comer and the use of corporal punishment in disciplining the foster children. In the past, commencing 1988, Petitioner had received complaints concerning the use of corporal punishment by Respondents in disciplining their foster care children. Petitioner through its employees had counseled Respondents about the inappropriateness of corporal punishment. In one instance correspondence was sent to the Respondents on this subject reminding the Respondents that it was inappropriate to use corporal punishment even to the extent of an "occasional slap on the backside. . .under any circumstances". This reminder was sent through correspondence dated March 25, 1993. In 1988, unrelated to the foster children who have been referred to in these facts, Pamela Davis, Guardian Ad Litem for A.L. spoke to James Comer concerning his administration of corporal punishment to that child. James Comer told Davis that he had beaten the child "to beat the devil out of her" and it hadn't worked. He further stated that Davis could take the child from his home. Davis did remove the child from foster care provided by Respondents. On February 12, 1996 Respondents requested a formal administrative hearing to contest the grounds for revoking their foster home license.
Recommendation Based on the facts found and the conclusions of law reached, it is, RECOMMENDED: that a Final Order be entered which denies the renewal of the Family Foster Home License for Respondents. DONE and ENTERED this 5th day of July, 1996, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of July, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 96-0943 The following discussion is given concerning proposed facts by the Petitioner: Paragraphs 1-5 are subordinate to facts found. Paragraph 6 is not necessary to the resolution of the dispute. Paragraphs 7 & 8 are subordinate to facts found with the exception that the fourth sentence is not supported by competent evidence in the record, nor are paragraphs 9 and 10. Paragraph 11 is subordinate to facts found. Paragraph 12 in the first sentence is subordinate to facts found. The last sentence to paragraph 12 and paragraph 13 are not necessary to the resolution of the dispute. Paragraph 14 is discussed in the evidentiary ruling under Section 90.803(23), Florida Statutes. Paragraph 15 is subordinate to facts found with exception that the next to last sentence in the reference that on the second occasion "Granny" had gone somewhere is not supported by competent evidence in the record. Paragraphs 16-18 are subordinate to facts found. Paragraph 19 is not supported by competent evidence in the record. Paragraphs 20 and 21 are subordinate to facts found with the exception that the reference to "they" in paragraph 21 should be "she". The first and the third sentence to paragraph 22 are not supported by the record. The second sentence is subordinate to facts found. Paragraph 23 is not supported by the record. Paragraphs 24 and 25 with the exception of the last phrase to paragraph 25 are subordinate to facts found. The last phrase to paragraph 25 is not supported by the record. Paragraph 26 is subordinate to facts found with the exception of the reference to October 10, 1988, which is not supported by competent evidence in the record. Paragraphs 27-29 are not necessary to the resolution of the dispute. Paragraph 30 is subordinate to facts found with the exception of the reference to November 26, 1995 which is not supported by evidence in the record. Paragraph 31 is not necessary to the resolution of the dispute. The second paragraph 29 is subordinate to facts found. COPIES FURNISHED: Lucy Goddard, Esquire Department of Health and Rehabilitative Services 1000 Northeast 16th Avenue, Box 3 Gainesville, Florida 32601 James and Mary Comer, pro se Post Office Box 722 Micanopy, Florida 32667 Gregory D. Venz, Agency Clerk Department of Health and Rehabilitative Services Building 2, Suite 204X 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard Doran General Counsel Department of Health and Rehabilitative Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue in the case is whether Respondent should be subject to administrative penalties, including an administrative fine not to exceed $1,000.00, for failure to comply with the residential facility requirements of chapter 393, Florida Statutes, as alleged in the Administrative Complaint dated November 12, 2009.
Findings Of Fact APD is the state agency charged with the licensing and regulation of foster care facilities, group home facilities, and residential habilitation pursuant to section 20.197 and chapter 393, Florida Statutes (2009). At all times relevant to this proceeding, Respondent held one group home facility license issued by APD for a residence at 12629 Southwest Archer Lane, Archer, Florida 32618. The group home is owned and operated by Miles Hines. C.H. is a child client of APD who has been diagnosed with moderate mental retardation and bipolar disorder. C.H. has a history of attention deficit hyperactivity disorder, post- traumatic stress disorder, and depression. At all times relevant to this proceeding, C.H. was a resident at the Jim Tin Group Home. M.K. is an adult client of APD who has been diagnosed with, among other conditions, mental retardation. At all times relevant to this proceeding, M.K. was a resident at the Jim Tin Group Home. APD alleged that M.K. sexually abused C.H. at the Jim Tin Group Home on or about January 14, 2009. APD produced no direct evidence in support of the allegation. APD relied solely on the written investigative report of a "Child Institutional Investigation" conducted by DCF protective investigator Natalie Rella between January 14 and March 11, 2009. Ms. Rella's report was reviewed and approved by her supervisor, Cheryl Hollingsworth. Ms. Rella did not testify at the hearing. None of the persons interviewed by Ms. Rella testified at the hearing. Ms. Hollingsworth testified that she did not personally participate in any of the interviews that formed the basis of Ms. Rella's report, nor did she independently investigate the abuse report that triggered the investigation. Ms. Hollingsworth relied entirely on Ms. Rella's report and Ms. Rella's conclusion that there were verified findings of inadequate supervision by Mr. Hines. Ms. Rella's report stated that its findings were based on an interview with M.K., an interview of C.H. conducted by the Child Advocacy Center, and her review of prior reports. No transcript or other account of the substance of the interviews was entered into evidence. The "narrative" portion of Ms. Rella's report stated as follows: [C.H.] is intellectual disabled [sic]. [C.H.] is high functioning but he has a lot of problems. On the night of 01/14/09, a resident tried to grab [C.H.'s] hand and put it between his legs. The resident told [C.H.] to suck his penis. [C.H.] did not but he told the supervisor who said, "I did not see it happen so there is nothing they can do." [C.H.] has spoken with the staff in the past about the resident's behavior. In the past, the other resident has tried to sexually aggress upon [C.H.]. The advances happened for a while but they stopped. The sexual advances have picked back up in the last couple of weeks. [C.H.] is frightened and scared of the resident. Ms. Rella's report contained a "prior reports" section describing previous investigations involving the same residents. One of these incidents involved a report by C.H. that he had been raped by two men and that another man had sucked C.H.'s penis while the child was at a DJJ facility. This claim was determined to be not substantiated. There were cameras in the room where the assaults were alleged to have occurred. The cameras proved that the assaults never took place. Americo Rodrigues is a certified behavior analyst with Choice Behavior Services, LLC in Gainesville. He has been C.H.'s behavior analyst since 2008 and visits C.H. weekly at the Jim Tin Group Home. Mr. Rodrigues testified that among C.H.'s behavioral problems is a propensity for making false allegations against other residents. C.H. is also very suggestible and easily led to agree with what someone tells him. Mr. Rodrigues stated that he is working with C.H. on these problems, but that they have proven relatively intractable. Mr. Rodrigues had no firsthand knowledge of the events alleged to have occurred at Jim Tin Group Home on January 14, 2009. Mr. Rodrigues testified that his impressions of the group home were that the accommodations and food seemed appropriate, and that facility staff appeared to be ensuring that the residents' activities of daily living were adequately maintained. During cross-examination, Ms. Hollingsworth conceded that C.H. changed his story during the course of the investigation. C.H. recanted his allegation and denied that he and M.K. ever engaged sexually. Ms. Hollingsworth testified that Ms. Rella had failed to conduct a site visit of the group home, that she never interviewed C.H.'s support coordinator or counselor, and that she never interviewed Mr. Hines. Ms. Rella spoke to no one who had dealt with C.H. over an extended period of time or who could provide perspective as to the child's historic patterns of behavior. Ms. Hollingsworth testified that, based on what she knew now, her recommendation would be to find that the allegations made by C.H. were "not substantiated." In fact, she had made a request to DCF headquarters in Tallahassee to change the conclusion in Ms. Rella's report. Jim Smith, APD's Area 3 administrator, testified that APD filed its complaint against Respondent in complete reliance on DCF's finding of a verified incident of inadequate supervision. APD does not conduct its own investigations and does not review DCF's reports for accuracy. Had DCF found that the allegations against Respondent were "not substantiated," APD would not have filed the Administrative Complaint that initiated this proceeding. The DCF investigative report is a hearsay document. It was admitted into evidence for the limited purpose of supplementing Ms. Hollingsworth's testimony that DCF had in fact "verified" the abuse complaint. APD argued that the report should be admitted for all purposes under the business records exception set forth in section 90.803(6), Florida Statutes. This argument is unavailing because C.H., the main source of information for the report, showed a lack of trustworthiness. APD has not demonstrated by clear and convincing evidence that Respondent failed to adequately supervise residents and sufficiently protect them from harm, neglect, and sexual abuse.
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 dismissing the Administrative Complaint. DONE AND ENTERED this 14th day of April, 2011, 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 14th day of April, 2011. COPIES FURNISHED: Julie Waldman, Esquire Agency for Person with Disabilities 1621 Northeast Waldo Road Gainesville, Florida 32609 M. Todd Hingson, Esquire Avera & Smith, LLP 248 North Marion Avenue, Suite 102 Lake City, Florida 32055 Christina Nieto Seifert, Esquire Avera & Smith, LLP 248 North Marion Avenue Suite 102 Lake City, Florida 32055 Percy W. Mallison, Jr., Agency Clerk Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 Michael Palecki, General Counsel Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 Bryan Vaughan, Acting Executive Director Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950
