The Issue Whether the Agency for Persons with Disabilities (APD) properly denied the application for licensure renewal sought for the group home facility license held by Tracy Court Group Home, owned and operated by V-Agape, LLC.
Findings Of Fact Petitioner is the state agency charged with regulating the licensing and operation of foster care facilities, group home facilities, and residential habitation centers pursuant to section 20.197 and chapter 393, Florida Statutes. At all times material to this complaint, Respondent held foster or group home facility licenses issued by APD. The current group home license issued for V-Agape, LLC, located at 19103 Tracy Court, Lutz, Florida 33548, is owned by Tonya Nelson, the sole managing member. Respondent has contracted with APD to provide the residents with Medicaid waiver developmental disability residential habitation services. HCSO conducts investigations of reports of abuse, neglect, abandonment, and threats of harm to children on behalf of DCF. Investigations of abuse, neglect, abandonment, and threats of harm are initiated by reported incidents through the Florida Abuse Hotline. Karen Gonzalez is the supervisor of the Specialized Investigating Unit. She supervises the CPIs who perform the abuse hotline investigations. Ms. Gonzalez supervised Robert Hoon and Jennifer Campbell, both CPIs. A report was made to the Florida Abuse Hotline on January 24, 2014, that a minor female resident of Respondent’s Tracy Court Group Home sustained bruising and a red mark on the back of her hand from being struck on her hands by Tonya Nelson. The resident is non-verbal and intellectually disabled. The subsequent investigation by CPI Hoon, on behalf of DCF, was ultimately closed with verified indicators for physical injury upon the minor resident living in the Tracy Court Group Home, but did not identify the caregiver responsible. CPI Hoon reviewed and discussed the investigation with Supervisor Gonzalez before he prepared the Investigative Summary (IS). When conducting investigations, the CPI reviews the prior history of incidents reported on a group home and its owner/operator. In subsection “D. Prior Reports and Service Records Implications for Child Safety,” CPI Hoon reported that: There are prior reports on the facility that include concerns for physical discipline in the foster home and to her o[w]n children. There is a verified report in 2012 for physical injury and the aps [adult perpetrators] where [sic] Tonya Nelson and the aunt as it is unknown who caused the injuries. Ms. Gonzalez testified that prior reports are reviewed in conducting their investigations to determine whether a pattern of concern for the health and safety of the children placed in that home and for the caretakers caring for the children in the home exists. The CPIs utilize DCF Operating Procedure (CFOP) 175-28, Child Maltreatment Index, as a guideline in conducting their investigations. A “verified finding” is made when a preponderance of the credible evidence results in a determination that the specific harm or threat of harm was the result of abuse, abandonment, or neglect. CPI Campbell explained the application of CFOP during an investigation: [I]t . . . breaks down the different maltreatments that are investigated under the umbrella of abuse, neglect, and abandonment, and it provides a guideline for the definitions of what the different maltreatments are, and the different types of supporting evidence and documents that may be needed when supporting a maltreatment when the investigator comes up with the findings. It’s basically a guideline for investigations, because when a report comes in it may not be just one maltreatment, there may be a number of different maltreatments; or an investigator may identify a maltreatment during the course of an investigation, and so this provides a guideline for the investigator. On May 20, 2014, a report was made to the Florida Abuse Hotline about a minor resident of Respondent’s Tracy Court Group Home. An investigation was commenced concerning unexplained bruises observed on the resident, a vulnerable minor. CPI Campbell completed the investigation and prepared the IS. She discussed the verified findings with Supervisor Gonzalez. CPI Campbell is an experienced investigator, having had 11 years of service with HCSO following five years’ experience as a CPI in Michigan. The report of May 20, 2014, was a “Supplemental” report since, according to Supervisor Gonzalez, it came in right after the initial risk sequence. Rather than creating an entire new report, this one became supplemental to the prior one. The IS stated that the resident had a large bruise on her left thigh and bruises on her left arm and the back of her leg. Ms. Nelson was not able to explain how the minor resident sustained the bruises on her leg and arm. CPI Campbell became involved with Ms. Nelson and the investigation of the group home when Supervisor Gonzalez gave her the task of completing the investigation initiated by CPI Krisita Edwards. At the time CPI Campbell took over the investigation, CPI Edwards had been assigned to other duties. CPI Campbell explained that it was not unusual for a second investigator to complete work begun by another since all their notes are kept on a central database known as the Florida Safe Families Network (FSFN), where all contacts are noted, as well as the investigative summary. CPIs Edwards and Campbell collaborated on the investigation in this case. CPI Edwards entered her initial findings in the FSFN, which was picked up and continued by CPI Campbell when she took over the case. The two CPIs have collaborated on other cases in a similar fashion. The initial documentation by CPI Edwards was performed within 48 hours of the call coming into the abuse hotline as required. CPI Campbell’s completion of the report and investigation occurred after she had spoken with CPI Edwards and discussed the matter with Supervisor Gonzalez. The result of the investigation concerning the bruises on the minor resident was that the bruises were “indeterminate for physical abuse” and “indeterminate for supervisory neglect” due to the fact that a specific cause of the injuries could not be determined. Further, since the minor resident had been removed to another group home, the report concluded that there existed no continuing threat to the resident’s well-being. Even though the resident had been removed from the Tracy Court Group Home and, therefore, was not in any danger of being further harmed, CPI Campbell continued to have serious concerns about the care of residents in the group home. She believed that several allegations of the same type of harm were being made in the group home and that they could not ask the resident how she received her injuries since she was non-verbal. Myra Leitold, an APD residential licensing supervisor, had monitored the Tracy Court Group Home for the previous nine and one-half years. On December 28, 2012, she observed that a door lock to the office and bedroom was keyed so that it could be readily opened from the inside which, she believed, created a safety hazard. Between December 2012 and August 2014, the group home was cited for ten violations of Medication Administration Procedures. On one of her visits, in December 2012, Ms. Leitold noted that no current prescription was present for one of the residents, and that the label on the prescription bottle did not match the prescription drugs inside the bottle. Additionally, she found that the accounting for one of the resident’s finances was not current and that the temperature inside the group home was a chilly 65 degrees Fahrenheit. Mitchell Turner, human services program specialist for APD, recorded numerous medication administration violations at the group home. He noted on May 30, 2013, that the medication prescriptions and instructions for the Medical Administration Record (MAR) did not match. On June 18, 2013, he discovered that the wrong dosage of prescription was being given to a resident, and Ms. Nelson admitted this mistake. Mr. Turner grew so concerned about the prescription irregularities that he requested Pamela Lassiter, a medical case management registered nurse, to review the group home. Nurse Lassiter was sent to the home where she discovered and cited the home for three additional prescription violations. Even following Nurse Lassiter’s visit, on another trip to the group home on April 9, 2014, Mr. Turner cited an additional MAR violation. He believed these violations posed a health and safety risk to the residents affected and exhibited a pattern of neglect by Respondent to the health and safety of vulnerable children. During the period when prescription and other violations were noted, on January 11, 2013, Ms. Nelson exceeded the maximum licensed capacity of three in the group home when she accepted a fourth resident. She did not have prior written approval from APD to exceed her licensed capacity of residents. On September 25, 2013, Mr. Turner issued a Notice of Non-Compliance (NNC) because Ms. Nelson again exceeded the licensed capacity for the number of residents in the group home without prior written approval from APD. Mr. Turner expressed his concerns over the repeated violations by Respondent. Ms. Nelson testified that she had received verbal approval for the placements in excess of the home’s licensed capacity from Meisha Stewart, residential placement coordinator for APD, and that on a prior occasion in 2012, she had accepted a resident after receiving verbal approval. This testimony was rebutted by both Geraldine Williams, the former regional operations manager for APD’s Suncoast Region, and Ms. Leitold, who testified she had never known APD to give verbal approval for a placement of a resident in a group home. With the high volume of referrals APD makes to group homes, they cannot operate in a system where verbal placements occur. All placements must be made in writing. When a provider receives a NNC, the provider is required to submit and successfully complete a Corrective Action Plan (CAP). Mr. Turner testified that Ms. Nelson did not submit or successfully complete a CAP for the MAR violations. On January 17, 2013, Ms. Leitold visited the group home and observed the following violations: volatile materials were not stored in approved metal containers and three prescriptions for a resident’s medications were not present. The gasoline, charcoal, and lighter fluid found by Ms. Leitold were required to be stored in approved metal containers. Keeping these materials in the open posed a safety hazard for the minor residents by giving them access to volatile materials. On November 4, 2014, Ms. Nelson sent an email to Meisha Stewart advising her she intended to accept a non-APD client for placement in the Tracy Court Group Home without APD’s prior approval. Ms. Nelson testified that since that same resident had been placed in the Tracy Court Group Home for a six-month period in 2013, she believed she did not need a new approval in 2014.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Persons with Disabilities enter a final order denying V-Agape, LLC, d/b/a Tracy Court Group Home’s application for license renewal. DONE AND ENTERED this 6th day of November, 2015, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of November, 2015. COPIES FURNISHED: Brian F. McGrail, Esquire Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) Lindsey Ann West, Esquire The Plante Law Group, PLC 806 North Armenia Avenue Tampa, Florida 33609 (eServed) Gerald D. Siebens, Esquire Agency for Persons with Disabilities 1313 North Tampa Street, Suite 515 Tampa, Florida 33602-3328 (eServed) Barbara Palmer, Executive Director Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) Richard D. Tritschler, General Counsel Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) David De La Paz, Agency Clerk Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed)
The Issue The issue is whether Respondents' foster home license should be revoked because of inadequate supervision of foster children, as alleged in Petitioner's letter dated December 22, 1998.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In this proceeding, Petitioner, Department of Children and Family Services (DCFS), seeks to revoke the foster home license of Respondents, Wendy and David Palmer. In a letter dated December 22, 1998, DCFS alleged that Respondents allowed "foster children to be taken overnight over one hundred miles from [their] home with no supervision from [Respondents] as the licensed foster parents." The charging document went on to allege that their "neglect materially affected the safety and welfare of the children because they were given alcoholic beverages and were allowed to sleep with men." Respondents denied the allegations and requested a formal hearing to contest the proposed action. Their license has remained inoperative pending the outcome of this proceeding. Respondents have operated a foster home around six miles north of Altoona, Florida, since May 1994, caring mainly for teenage females who had "a lot of behavior problems" and had failed in prior placements. The home is licensed by DCFS under Section 409.175, Florida Statutes. Children were placed in their home by the Lake County Boys Ranch, a private organization which had a contract with DCFS to provide that service. On an undisclosed date, but prior to August 1998, three females, M. G., G. M., and D. W., were placed in Respondents' home. At that time, each of the girls was around fifteen years of age. G. M. had almost fifty prior placements, while D. W. had failed in "several" other placements. M. G. had also been in a number of "non-relative" placements, but the exact number is unknown. All three had a reputation of being difficult to handle and were considered "high-risk." None testified at the final hearing and thus any comments they may have made to a DCFS investigator are hearsay in nature. Respondents' daughter, Jamie, who was 21 years old when the events herein occurred, had been approved to serve as a respite provider at the foster home. This meant she could assist her parents by transporting the children to medical or visitation appointments and provide supervision in the home for a limited period of time. Examples of her duties included transporting the three girls to doctor's appointments, to lunch, or to the beach for recreational purposes. She considered her relationship with the girls to be "like sisters." On August 3, 1998, Jamie decided to travel to Hampton in Bradford County, Florida, in an extended cab pick-up truck to retrieve the remainder of her personal belongings from the residence of her former boyfriend, Scott, a 22-year-old male. Hampton is approximately 83 miles from Altoona, but the distance between the foster home and Scott's residence was no more than 75 miles or so. The one-way trip less took less than an hour and a half. Jamie spoke with her mother around 10:30 or 11:00 a.m. that day and received permission for the three girls to accompany her on the trip. The trip was perceived by Wendy Palmer as a recreational trip, and one that would enable the girls to build trust in the family since it allowed them to take a short trip away from their home and to return later that same day. Contrary to the charging document, this was not an illegitimate purpose, and Respondents' authorization of the trip at that point in time could not reasonably be forseen as an act which would materially affect the girls' health or welfare. Jamie was told to go straight to Hampton, pack her belongings, and then return. Jamie eventually departed the foster home between 2:00 p.m. and 2:30 p.m. and arrived at Scott's residence shortly before 4:00 p.m. Although Scott was not at home when the group first arrived, he returned shortly thereafter with "two buddies," both adult males. A verbal argument between Scott and Jamie ensued, and Scott remained at the residence for several hours while the two discussed why their relationship had gone sour. Scott's two friends, however, remained outside the residence by his truck. Just before 6:00 p.m. Jamie telephoned her mother to advise that she had safely arrived in Hampton, that she was packing, that Scott was on the premises attempting to change her mind about leaving him, and that it looked like it was going to rain. Scott and his friends left a few minutes later, and even though Scott had a key to the residence, he and his friends did not return that evening. Before 9:00 p.m., Jamie again telephoned her mother to advise that it was storming, that she was upset after arguing with Scott, and that she was afraid to drive home in rainy weather at that hour with the girls. Accordingly, she asked permission to remain at Scott's residence that evening and drive home the first thing in the morning. Although Scott's residence was not a licensed, inspected, and approved foster home, Wendy Palmer agreed that under those extenuating circumstances, it was appropriate to remain in Hampton overnight. Wendy Palmer added that she would have driven to Hampton herself to retrieve the girls, but she did not wish to drive on two-lane roads in the rain at that late hour. Wendy Palmer's decision that evening technically violated her duty as a foster parent to provide round-the-clock supervision for the girls in a licensed foster home. Indeed, without the order of a court, foster children are not allowed to stay in an unlicensed home. After talking with her mother, Jamie drove to a local convenience store and purchased two Bud Lights in a can. She returned to the residence and consumed them herself. Contrary to the allegations in DCFS's letter dated December 22, 1998, the girls were not given alcoholic beverages. Also, Jamie did not allow adult males to enter the premises that evening. Further, they did not engage in sexual relations with other men. Indeed, except for the girls and Jamie, there was no one else present, and all four slept in the living room of the residence. Although Jamie allowed the three girls to smoke that evening, this conduct is not cited as a ground for revocation in the charging document. The next morning, Jamie telephoned her mother a third time and advised that they were getting ready to drive back to Altoona. The group returned a short time later. On October 9, 1998, or some two months later, the three girls ran away from the foster home and were eventually picked up by law enforcement authorities in Wildwood, Florida. At that time, D. W. made allegations for the first time that while in Hampton on the evening of August 3, 1998, the group had been given alcoholic beverages by Jamie, that they had engaged in sexual intercourse with friends of Scott, and that Jamie had become intoxicated. These allegations led to an investigation by DCFS and its decision to revoke Respondents' foster home license. They also resulted in a verified report of institutional neglect on November 2, 1998, which is found in abuse report 98-113392. DCFS takes the position that the trip had no legitimate purpose because the girls would receive no discernible benefit from the trip. This assertion has been rejected above. It further contends that the teenagers were placed at risk when Respondents allowed the girls to stay overnight with a respite worker in an unlicensed home. According to DCFS, the appropriate action would have been for the Palmers to advise Jamie to transport the girls to a "public shelter" in the area, or alternatively, for the Palmers to drive to Hampton that evening and pick them up. Because these latter steps were not followed, Respondents violated DCFS protocol, and they committed a negligent act within the meaning of the statute. During the four-year period in which Respondents served as foster parents, they provided outstanding care for foster children who were most at-risk, and all of whom had failed in prior placements. Other than this one incident, there are no blemishes on their record. Moreover, they have the continuing support and confidence of the private agency which makes local placements of foster children pursuant to a contract with DCFS. These considerations, as well as the extenuating circumstances which occurred on the evening of August 3, 1998, should be taken into account in determining whether Respondents' license should be disciplined.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Children and Family Services enter a final order determining that Respondents violated Section 409.175(8)(a)1., Florida Statutes, and that their foster home license be suspended for one year effective December 22, 1998. DONE AND ENTERED this 10th day of June, 1999, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of June, 1999. COPIES FURNISHED: Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John S. Slye, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John N. Spivey, Esquire 14550 U. S. Highway 441 Tavares, Florida 32778 Ralph J. McMurphy, Esquire Department of Children and Family Services 1601 West Gulf Atlantic Highway Wildwood, Florida 34785-8158
The Issue Should Respondents' application for annual renewal of their foster care license be denied?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Department is the Agency of the State of Florida charged with the responsibility of licensing family foster homes. Respondents were first licensed as a foster home by the Department in February 1999. At the time of the initial licensure in February 1999, the Department was aware that Respondents owned a large Rottweiler dog. However, the issue of the dog was resolved, and the Department issued Respondents their initial license and renewed their license in February 2000. At the time of the initial licensure in February 1999, and the renewal in February 2000, Respondents had an in-ground swimming pool located in their backyard. Apparently, the lack of a proper barrier around the pool, as required by the Department rule, was not an issue since the Department issued the initial license in February 1999, and renewed that license in February 2000. On November 6, 2000, Respondents filed an application with the Department for renewal of their foster home license. On November 6, 2000, Cheryl Dishong, the Department's foster care licensing worker, visited Respondents' home and determined that Respondents were caring for nine children in their home which included: (a) four foster children placed in Respondents' home by the Department; (b) Respondents' two natural children; (c) Respondents' two adopted children; and (d) one child, no relation to Respondents, which they were caring for due to the child's mother having been incarcerated. However, this child is no longer in the home except for visiting. Respondents never attempted to a seek waiver to exceed the "rule of five" set out in Rule 65C-13.001(a), Florida Administrative Code, for good cause as provided for in Rule 65C-13.011(1)(b), Florida Administrative Code. On December 8, 2000, Mazen Omari, sanitation inspector with the Polk County Heath Department, inspected Respondents' home and found the following: (a) the carpet in the living room and the bedrooms needed cleaning and the kitchen needed cleaning (there were dirty dishes in kitchen sink); (b) the children's bedrooms needed cleaning and their clothes needed to be put in a proper place; and (c) the fire extinguisher needed an up-to-date inspection tag. Respondents did not advise the Polk County Heath Department that the violations noted by Omari on December 8, 2000, had been corrected. Therefore, the Polk County Health Department did not provide the Department with an approved Sanitation Report. On January 3, 2001, Cheryl Dishong visited Respondents' home. During this visit, Dishong determined that Respondents had not corrected the sanitary violations cited by Omari on December 8, 2000. Dishong found that Respondents' fire extinguisher had been used but had not been recharged. Dishong observed: (a) dirt, dirty handprints, and crayon markings on the walls throughout the house; (b) dirty carpet throughout the house; and (c) general clutter, with piles of clothes on the floor in the laundry room. Cheryl Dishong visited Respondents' home again on January 12, 2001, and observed that not all of the sanitary violations cited by Omari on December 8, 2000, had been corrected. Dishong also observed: (a) the house being in "general disarray;" (b) a bed frame in one of the rooms which needed to be stored where it would not constitute a danger to the children's safety; (c) zippy cups and clothing strewn about; and (d) debris, including chair cushions and "other things" scattered all over the yard, which could be considered as constituting a danger to the children's safety. Dishong visited Respondents' home again on January 22, 2001, and observed that not all of the sanitary violations cited by Omari on December 8, 2000, had been corrected. Dishong also observed some hazardous household cleaning chemicals that were not locked up to prevent access by the children. However, Respondents had purchased a lock, and it appeared that they were in the process of installing the lock on the cabinet door to prevent access to the chemicals by the children. In the front yard, Dishong observed: (a) a garden hose lying across the walkway in two places; (b) a metal rectangular bar lying across the walkway which two of the boys were throwing back and forth; (c) a toy lawnmower under the family van; and (d) garbage items such as open bean cans and pieces of cement scattered "all about.” In the backyard, Dishong observed: (a) a trampoline beside the swimming pool; (b) items scattered throughout the backyard, including chair cushions; (c) that there was no barrier around the swimming pool as required by Department rule; (d) and that the pool was covered by green algae. All of the things observed by Dishong at Respondents' home on January 22, 2001, could be considered as constituting a danger to the children's safety. Respondent Troy Allen testified that there was a fence installed on three sides of the swimming pool and that the house served as a barrier on the fourth side. However, there were no safety features, such as those listed in Rule 65C-13.01(12)(c), Florida Administrative Code, installed on the exits from the house to the swimming pool to prevent the children from having access to the swimming pool only when supervised. Therefore the swimming pool was readily accessible to the children from the house when unsupervised. Respondents own a Rottweiler dog, and had owned such a dog from the beginning of their licensure in February 1999. The dog was present at Respondents home on each occasion that Dishong visited Respondents' home. An earlier safety plan, agreed to by Respondents, required that the dog be kept outside, or restricted from the children, unless supervised while in the presence of the children. There was no evidence that this agreement had been violated by Respondents. This dog might be what Dishong considers to be a "large pet." However, other than Dishong's description of the dog as being a "large dog" and estimating its weight to be 125 pounds, there was no evidence that the dog met the definition of "large" as anticipated by the Department's rule. Likewise, there was no evidence to show that this particular dog was potentially dangerous. Shortly before the hearing, Respondents had new carpet installed through out the house where appropriate, the walls stripped and painted, tile installed in areas where carpet was not appropriate, and some new furniture installed, which included a replacement for the bed frame that was noted as a violation. By letter dated February 20, 2001, the Department notified Respondents that their application for renewal of their foster home licensure had been denied.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a final order denying Respondents application for the annual renewal of their foster care license. DONE AND ENTERED this 24th day of September, 2001, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 24th day of September, 2001. COPIES FURNISHED: Troy Allen Rebecca Allen 4514 Scottswood Drive Lakeland, Florida 33813 Jack Emory Farley, Esquire Department of Children and Family Services 4720 Old Highway 37 Lakeland, Florida 33813-2030 Virginia A. Daire, 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
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
The Issue Whether the application of Hancel and Irma Felton for foster home licensure should be granted or denied.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department of Children and Family Services is the state agency responsible for granting or denying applications for foster home licensure. Section 409.175, Fla. Stat. Hancel and Irma Felton have been married 10 years, and both consider their marriage to be a happy one. Mr. and Mrs. Felton are raising Mrs. Felton's two children from a previous marriage; her daughter is a junior in high school and her son is in middle school. Mr. Felton treats these children as though they were his own; neither of these children has even had behavior problems. Mr. Felton is currently employed by the City of Coral Gables driving a garbage truck. Mrs. Felton works as a bus attendant for Dade County, although she worked in a child care center until 1989. Mr. and Mrs. Felton profess to have a Christian home, and they both testified that they are very active in the church. Although he has no formal theological training, Mr. Felton is an ordained minister of a church called Our Temple of God for All Ages. Mrs. and Mrs. Felton engage in missionary work, which involves working with young people in prison and with people who live on the street, including prostitutes and drug addicts. They often invite these people to stay in their home so they can counsel them and show them a better way to live. In the summer of 1996, Hancel and Irma Felton indicated to a representative of the Department that they were interested in becoming foster parents. According to Mrs. Felton, she and her husband want to become foster parents because she is an only child and wants more children but cannot have more of her own. Mr. and Mrs. Felton passed the initial "screening" and were enrolled in the MAPP/GPS class, which is a 10-week course which must be taken by all prospective foster and adoptive parents as part of the application process. Mr. and Mrs. Felton regularly attended the MAPP/GPS classes from July to September, 1996, and the Department issued certificates dated September 19, 1996, indicating that they had successfully completed the program. During the first meeting of the MAPP class, Personal Profile forms were distributed to the participants. Mr. Felton filled out this form, detailing his family history, and turned it in to the MAPP instructor. Question 14 in the profile requested: "Please list any children you have, from previous marriages or relationships, who do not currently live with you." Mr. Felton wrote "none" in the blank space provided for the response. Question 17 in the profile asked: "If you have remarried, or entered into a new relationship with someone other than your children's mother, how did your children adjust to the new person?" Mr. Felton responded by stating that the question was "not applicable," that there were "no other children." On July 11, 1996, Mr. and Mrs. Felton signed a Release of Information, in which they authorized the Department to obtain information from federal, state, and local law enforcement agencies to determine if they had any criminal history and to obtain information from the "central abuse registry and tracking system" maintained by the Department to determine if they were named in any confirmed reports of child abuse.1 The Department's check of records kept regarding reports and investigations of child abuse revealed that a report was made to the central abuse registry on February 21, 1989, in which it was alleged that Mr. and Mrs. Felton had abused a child named C. A., who was identified as Mr. Felton's daughter. C. A. is Mr. Felton's daughter by a woman with whom he had a relationship before he met Mrs. Felton. In February, 1989, C. A. was 8 years old. She had been raised by her mother in Detroit, Michigan, but the mother had died approximately a year earlier, and C. A. was placed in foster care in Detroit. In the summer of 1988, Mr. Felton requested that the Detroit authorities place C. A. with him, and she came to live with him and Mrs. Felton in December, 1988. C. A. had behavior problems during the few months she lived with Mr. and Mrs. Felton. Mrs. Felton was apparently unable to cope with her behavior, and Mr. Felton testified that things were getting very difficult with his wife as a result of C. A.'s living in their home.2 As a result of the problems Mrs. Felton had with C. A., Mr. Felton took C. A. out of the home he shared with Mrs. Felton and her children in February, 1989, and moved her into the home of his step-grandmother. In late February, a protective investigator with the Department went to C. A.'s school in response to a report that she had been abused. The investigator talked to C. A. in the presence of the school principal. During the interview, C. A. removed some of her clothing, and the investigator observed raised and discolored welts on the girl's back and legs. C. A. told the investigator that she had been beaten with a folded electrical extension cord. The investigator had observed welts with similar configurations on other children, and she determined, based on her experience, that the welts on C. A. had been inflicted with an extension cord. The protective investigator went to the Felton home and examined Mrs. Felton's two children for signs of abuse; she found no signs of abuse on these children. She interviewed Mr. and Mrs. Felton and noted in her report that they "admitted that they had beat C[]. A[]. with a belt and extension cord." Because they were not related by blood, the Department removed C. A. from the home of Mr. Felton's step-grandmother, even though she was a loving person and provided good care for C. A. C. A. was placed in a shelter and returned to Detroit shortly thereafter. Mr. Felton did not challenge the classification of the abuse report, and it became final as to him. Mrs. Felton hired an attorney, who negotiated a settlement with the Department whereby the abuse report became final as to her, but she was granted an exemption from the disqualification from working with children which resulted from the abuse report. At the hearing, both Mr. and Mrs. Felton denied ever "beating" C. A. They admitted, however, that they "spanked" her. During the time they participated in the MAPP classes and selection process, neither Mr. Felton nor Mrs. Felton disclosed to the Department that they had been named in an abuse report in 1989. Both testified that, since they had signed the Release of Information form, they assumed the Department would find out about it. Mr. and Mrs. Felton both testified that they had benefited greatly from the MAPP program. They have learned that it is inappropriate to spank a child for misbehavior and that it is better to talk with the child and make the child feel loved and wanted. C. A., who is now 16 years old, calls her father occasionally, and Mr. Felton is in contact with his mother, who apparently lives in Detroit and can provide some information about C. A. Mr. Felton testified that his daughter lives mostly on the street and has essentially raised herself since her mother died. Mr. Felton related that C. A. had recently called him and asked if she could come stay with him for the summer. He refused her request because he "needed to get his name straight." He wants C. A. to come live with him eventually. Mr. Felton provides support for C. A. though the $101.50 the City of Coral Gables currently deducts from Mr. Felton's biweekly paycheck. The evidence presented by Mr. and Mrs. Felton is not sufficient to establish their fitness for licensure as foster parents. Rather, the greater weight of the evidence establishes that Mr. and Mrs. Felton currently do not possess the good moral character necessary for those entrusted with a foster home license, which is recognized as a public trust and a privilege. Mr. Felton made intentional misstatements on the Personal Profile form which he completed as part of the foster home licensure application process when he twice stated that he had no children from relationships or marriages other than that with Mrs. Felton. In addition, neither Mr. nor Mrs. Felton disclosed to the Department the existence of the 1989 abuse report involving C. A., apparently feeling no obligation to do so and assuming that the Department would find out about it when they did the screening required for foster home license applicants. Finally, Mr. and Mrs. Felton are currently unable or unwilling to provide shelter and care to Mr. Felton's own child, C. A., who, in Mr. Felton's words, has "raised herself" and is currently living "on the street" in Detroit, Michigan. These three factors, taken together with their treatment of C. A in 1989,3 establish that the Feltons do not have the good moral character required of foster parents.
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 Irma and Hancel Felton for foster home licensure. DONE AND ENTERED this 15th day of May, 1997, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 15th day of May, 1997.
Findings Of Fact Respondent Pat McComb is the operator of a group home in Broward County, Florida. The home operated under a license issued to Happy People, Inc. Through some unspecified channel, a report of possible abuse was received and Gloria Taylor, a Human Services Counselor II with DHRS, investigated on May 18, 1984. The investigation consisted of interviews with both former and current clients of the group home. A summary of these interviews is found in Petitioner's Exhibits 2, 3, 5, 8 and 9. The former clients and clients are all mentally retarded with secondary disabilities. The interviews were conducted in a group setting with Taylor addressing leading type questions to the group and the group responding in the negative or affirmative. Two clients were interviewed separately, with one being interviewed away from the group home. At least two of the clients changed their statements regarding whether any abuse had ever occurred. No client stated when or where or how often or how severe the alleged abuse was. Taylor saw no bruises or other physical signs of abuse at the time she interviewed the clients. There had never been any other reports or any medical treatment required for these clients. Taylor's testimony was based solely on what she was told by the clients and former clients. Based upon the written reports prepared by Taylor, Rhonda Miklic prepared and signed a letter revoking the licenses of Pat McComb and Happy People, Inc. The clients were moved from the home. The acts of Miklic in revoking the license are not discretionary. Instead, Miklic is required to revoke the license if a finding of abuse is made by the investigator. Pat McComb denied any knowledge that any client was ever hit with a belt at the facility. Instead, discipline consisted of such things as loss of privileges or having a client stand in the corner.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the charges against Respondent be DISMISSED and that the license of Respondent be reinstated. DONE and ENTERED this 11th day of January, 1985, in Tallahassee, Florida. DIANE K. KIESLING 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 11th day of January, 1985. COPIES FURNISHED: Harold Braynon, Attorney 201 West Broward Boulevard Ft. Lauderdale, Florida 33301 Mark Perlman, Attorney 1820 E. Hallandale Beach Boulevard Hallandale, Florida 33009 David Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
