Findings Of Fact In August, 1980, the home of Jacob and Donna Vermeulen was licensed by Petitioner as a pre-school foster home. Under that licensure, the Vermeulens were able to care for children from birth to four years of age. The subject of this proceeding, hereinafter referred to as S.L., was born on May 26, 1976. When S.L. was four years old he and his younger sister were removed from the custody of his natural mother (after he witnessed the homicide by bludgeoning of his father by his mother) because S.L. and his sister had been physically abused by both natural parents. Petitioner placed S.L. and his sister into the Vermeu1en foster home. After S.L. and his sister had been living with the Vermeulens for approximately six months, Petitioner removed them from the Vermeulen home and returned them to the custody of their natural mother. After approximately six months, the two children were again removed from their natural mother since she again physically abused them. Petitioner requested the Vermeulens to again take custody of S.L. and his sister. The Vermeulens were reluctant to do so since both S.L, and his sister were now older than was allowed under the Vermeulens' license, and because S.L. had problems relating with the other foster children living in that home during his first stay there. However, Petitioner's social workers begged the Vermeulens to take the children back since Petitioner was unable to find any other placement for S.L. The Vermeulens agreed to make their home available to S.L. and his sister, and the two children thereafter lived in the Vermeulen home for approximately two and one-half years prior to April 16, 1984. S.L. is a difficult child to care for; he is very emotional, developmentally immature, fearful, and fidgety. He has difficulty sleeping or listening, has a very low self-esteem, and is unable to complete tasks since he becomes emotionally frustrated. Not only is S.L. a clumsy child (most probably due to medication), he also throws himself onto the floor and onto his toys, both as part of his aggressive play behavior and also in conjunction with throwing temper tantrums. S.L. initiates fights in school, on the school bus and at home with the other children in the Vermeulen home to such an extent that fighting somewhere would have been almost a daily occurrence. His excessive demands for attention were often accompanied by negative behavior, such as hitting other children and throwing temper tantrums. On December 21, 1983, S.L. was evaluated by psychiatrist Josephine Perez. Perez diagnosed S.L. as suffering from Attention Deficit Disorder with Hyperactivity. Perez determined that the high dosages of anti-psychoic medication that S.L. had been taking were inappropriate, and she prescribed different medication for him. Perez recalls that during S.L.'s initial evaluation in December she noticed that his legs and arms were filled with bruises. S.L. began treating weekly with Perez from January 16, 1984, until April 16, 1984. On each visit at least one of the Vermeulens was present, and each visit contained a seasion between Perez and the foster parent discussing the child's progress and training the foster parent in the use of behavioral modification techniques. During those several months S.L. appeared at Perez's office on one occasion with a black eye and on another occasion with a bruising above his eye. One injury resulted from a fall in the bath tub, and another resulted from a fall out of bed; both falls were probably attributable to changes Perez made in S.L.'s medication. The Vermeulens discussed both incidents with Perez since they were concerned that S.L,'s medication was still not in the proper dosage. The Vermeulens testified that sometimes when S.L.'s medication was changed, he was unable to control even his arms and was unable to sit still long enough to eat. In January, 1984, when S.L. began treating with Dr. Perez there were six children living in the Vermeulen home: four foster children, one adopted child, and one natural child. The Vermeulens and Dr. Perez discussed the number of children living in the Vermeulen home, which prohibited giving S.L. the excessive amount of time required by him to satisfy his need for attention. Perez told the Vermeulens that in her professional opinion S.L. should be in a home with no more than one other child. In turn, the Vermeulens told Perez that they had been requesting Petitioner to remove S.L. from their home out of their concern (1) for S.L. since he needed so much more attention than was available to him and (2) for the other children not only because S.L. would kick and hit them but also because the Vermeulens had discovered S.L. in his sister's bedroom standing over her with a knife in his hand on two occasions. Although Perez agreed that S.L. should be placed a different foster setting, she did nothing to assist in obtaining a different placement and did not discuss with any employee of the Petitioner ("HRS") her recommendation and the Vermeulens' desire that S.L. be placed in a setting, preferably, where he was the only child. The Vermeulens, however, continued to request of HRS employees, including the visiting social workers and medical personnel, that S.L. be removed from their home, with visitation rights being given to the Vermeulens if possible. During this time period the Vermeulens determined that they wished to adopt Michelle, a foster child in their care. On Friday, April 13, 1984, an HRS employee went to the Vermeulen home to discuss that petition for adoption and to advise the Vermeulens that HRS would not allow them to adopt Michelle. Mr. and Mrs. Vermeulen S.L., and the rest of the children living in the home were present during that discussion. The Vermeulens were advised that they would not be permitted to adopt Michelle so long as S.L. was living in their home since he is a "therapeutic foster child" and Petitioner's rules would prohibit the adoption while a "therapeutic child" was in the home. Mrs. Vermeulen was unable to understand Petitioner's position: its refusal to remove S.L. from her home after repeated requests and its refusal to allow her to adopt Michelle for the reason that S.L. was in her home. Mrs. Vermeulen became upset, and S.L. told her and Petitioner's employee to put him in a foster home indicating he would rather be sent away than prevent Michelle from being adopted by the Vermeulens. Since the HRS employee was having a difficult time discussing HRS's position, she left the Vermeulen home. On Friday, April 13, 1984, or on Monday, April 16, 1984, S.L. became involved in a fight on the school bus on the way home from school. The bus driver told Mrs. Vermeulen about the fight. On Monday April 16, 1984, Mrs. Vermeulen took S.L. to his weekly therapy session with Dr. Perez. During that session, S.L. indicated to Perez that he had been bad and had been "paddled" on the legs. He would give her no details, but Perez believed it was Donna Vermeulen who paddled S.L. Rather than discuss it with Mrs. Vermeulen, Perez acted as though nothing had been said. Further, although a medical doctor, she did not examine S.L. Instead, Perez discussed with Mrs. Vermeulen behavioral modification techniques to be utilized with S.L. and sent them home. She then telephoned HRS, and a child abuse report was completed. On April 18, 1984, an HRS employee went to S.L.'s school, removed the child from his class, and took the child to be examined by the Child Protection Team. S.L. was first examined by the nurse. When S.L. was unable to explain to the nurse from where each mark on his body originated (or refused to), she interrogated him with questions such as "Did your mommy hit you?" The nurse made notations on a chart indicating numerous marks or bruises on S.L.'s body. However, an HRS employee saw S.L. disrobed when he was being examined by the doctor on the team and saw only two marks on his lower back. Other HRS employees went to the Vermeulen home and removed all the children. No one discussed the incident or accusation with either Mr. or Mrs. Vermeulen until the following day. Until he was removed from her class on April 18, 1984, S.L. was taught by Debbie Froug an Exceptional Education teacher for emotionally disturbed children. Although Froug describes S.L. as a basically honest child, she testified that he sometimes gets very confused. A careful review of the videotaped testimony of S.L. and of the conflicting testimony of the witnesses in this case indicates that Froug's latter description is probably an understatement. No witness in this case heard the same explanation (or accusation) as any other witness. S.L's videotaped testimony illustrates why: there is no statement made by S.L. that is not contradicted by him a few seconds later. For example the videotaped deposition contains on page 27 the following: O. Did you ever have a black eye? A. No. O. Didn't you talk to Dr. Perez about having a black eye once? A. Yes, but I didn't. How did you get the black eye? One of the kids on the bus. Things stated in the affirmative by S.L. in his deposition are also stated in the negative in that same deposition. Further, it is sometimes impossible to ascertain if S.L. is describing being hit by his real father, by his real mother, or by his foster mother. Although no accusation appears to ever have been made, including in the Administrative Complaint, that Jacob Vermeulen ever struck S.L., by the time of S.L.'s deposition eight months after the alleged incident when S.L. was asked if Jacob ever hit him, that question was answered in the affirmative. In short, the evidence is clear that S.L. had some bruises or marks on his body on April 18, 1984; that those bruises or marks were both received accidentally and intentionally inflicted, and that the bruises or marks on S.L.'s body were received as a result of S.L. falling from being uncoordinated or overmedicated, from S.L. flinging himself onto the floor or onto or against objects, and from being hit or kicked by other children with whom S.L. engaged in almost-daily physical combat. Donna and Jacob Vermeulen used only approved behavior modification techniques with S.L. and did not hit S.L. with or without any object, spank S.L., or otherwise inflict physical abuse upon him. Although the Vermeulens' license as a foster home was in effect at all times material hereto, it has lapsed. A foster home license is not automatically renewed but rather requires an annual licensing study. Other than "the incident" charged herein the Vermeulens have received no prior complaints from HRS.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is REC0MENDED that a Final Order be entered dismissing with prejudice the Administrative Complaint filed herein and directing that any licensure study performed regarding the renewal or extension of Respondents' license be made omitting therefrom consideration of any of the matters set forth herein. DONE and RECOMMENDED this 19th day of July, 1985 at Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of July,1985. COPIES FURNISHED: Leonard Helfand, Esquire Department of Health and Rehabilitative Services 401 N.W. 2nd Avenue, Suite 1070 Miami, Florida 33128 Thomas J. Walsh, Esquire 590 English Avenue Homestead, Florida 33030 David Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
Findings Of Fact Respondent was initially licensed to operate a foster home in 1992. In April 1995, her license was renewed. As part of the licensing process, the Respondent signed documents entitled "Agreement to Provide Substitute Care for Dependent Children" and "Discipline Policy", thereby agreeing to comply with the terms of each document. Both of these documents clearly provide that corporal punishment of a foster child is prohibited. On October 30, 1995, Petitioner notified Respondent by letter of its intent to revoke her foster home license and stated, in pertinent part, as follows: This letter is to advise you that your Foster Home license is being revoked, effective November 1, 1995. This decision has been made based on our past concerns about inappropriate child-parent visits, the recent complaint about use of physical discipline, and the altercation on 09/18/95 between you and Foster Parent Veronica King. 1/ At the times pertinent to this proceeding, Respondent provided foster care for three teenage girls under the age of 18 years. On September 29, 1995, Petitioner's abuse registry received a report that Respondent had been physically and verbally abusive to the children in her foster care. The report included allegations that Respondent had hit and knocked down one of the girls in her foster care and that she attempted to return the girl to her natural mother, who had abused her daughter in the past. In response to that report, Petitioner removed the three girls from Respondent's foster care and began an investigation of the allegations. As part of that investigation, Respondent and each of the three girls were interviewed by employees of the Petitioner with appropriate training. The three girls who had been in Respondent's foster care made statements to these employees pertaining to their treatment by Respondent. These statements are hearsay that cannot be used as the sole basis for a finding of fact in this proceeding. 2/ In her interview, Respondent denied that she physically abused her foster children, but she admitted that she intentionally pushed one of the girls to the ground. Respondent violated Petitioner's discipline policy by pushing this girl to the ground. Respondent denied that she threatened to return one of the girls to the girl's abusive mother. Instead, she testified that she arranged for this girl to visit with the abusive mother. There was no competent evidence to dispute Respondent's testimony. Respondent conceded that she talked firmly to the three girls, but she denied that she verbally abused them. There was no competent evidence to dispute Respondent's testimony.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order that revokes Respondent's foster home license. DONE AND ENTERED this 2nd day of October, 1996, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of October, 1996.
The Issue Whether Petitioner Antoinette Scanziani's license as a family foster home should be renewed.
Findings Of Fact Based on the testimony and evidence received at the hearing, the following findings are made: Respondent is the state agency responsible for licensing and regulating family foster homes. Children's Home Society (CHS) is the contract agency in the Central Licensing Zone that directly supervises licenses in that area. Petitioner filed an application to renew her family foster home license on May 26, 2006, which was originally issued for one year in August 2005. Prior to the issuance of her family foster care license on August 19, 2005, Petitioner had completed, inter allia, 30 hours of Models Approach Partnership and Parenting (MAPP) training and signed a Foster Parent Agreement, prepared by CHS, which spells out the duties and obligations of a foster parent. Paragraph 12 of the Agreement specifically states that a foster parent will notify CHS immediately of any change of address. Under Respondent's rules, a family foster care license is not transferable, and a new sanitation inspection and recommendation must be completed before Respondent can issue a new license for the new address. The family foster care license was issued to Petitioner for 5831 Bent Pine Drive, Apartment 300, Orlando, Florida 32822. The first foster child was placed in Petitioner's care on September 1, 2005. In August 2005, Petitioner began a dispute with the rental management company who managed the apartment complex where she lived. This resulted in Petitioner giving the company 60 days' notice that she would not renew her lease after October 31, 2005. The rental company, mean while, would not accept her tender of rental payments for August and September 2005, and initiated eviction proceedings in County Court. Prior to the final hearing, a stipulation was signed by the parties and approved by the County Court. Petitioner moved out of her apartment on October 31, 2005. On November 1, 2005, Petitioner, along with one foster child, moved into a house located at 7741 Fort Sumter Drive, Orlando, Florida 32822. CHS was not notified of this change of address until November 11, 2005. The CHS Dependency Specialist worked diligently with Petitioner to obtain a license for her new residence. DCF issued a new family foster care license for 7741 Fort Sumter Drive, Orlando, Florida 32822 on December 20, 2005. Petitioner maintained an unlicensed foster home from the period of November 1, 2005, through December 20, 2005. Although the foster child residing with Petitioner was not removed from the home, Petitioner was reminded of the need to notify CHS prior to any moves in the future. On April 6, 2006, Petitioner notified CHS that she had moved from her Fort Sumter Drive, Orlando, residence to a residence in Poinciana, Florida (Osceola County) at the end of March 2006. It was subsequently determined that a Writ of Possession for the Orlando residence was issued by the Orange County Court on March 2, 2006. Petitioner testified at the hearing that she moved at the end of March 2006, because of poor maintenance and discriminatory and retaliatory conduct by the landlord. The foster child was not removed from the home and the CHS Dependency Specialist again worked diligently and patiently with Petitioner to obtain a license for her family foster care residence at 127 Conch Drive, Kissimmee, Florida 34759 (Poinciana). Due primarily to Petitioner's lack of cooperation, a completed health inspection of the home was not completed until August 4, 2006. During this time, Petitioner submitted her application for relicensure on May 26, 2006. On July 13, 2006, the CHS Dependency Specialist hand delivered a letter, dated July 11, 2006, to Petitioner reminding her that a face-to-face visit and a walk through of the home was required before recommendation could be given. Petitioner was given a check-list of 16 items which were due to be completed prior to July 16, 2006, or CHS could not recommend renewal of her foster care license. On July 18, 2006, CHS sent Petitioner a follow-up letter. Although another home inspection had taken place on July 17, 2006, it was not a satisfactory home health inspection. In addition, proof of completion of 12 hours of training had not been demonstrated and six other items on the check-list were, also, not completed. The deadline for compliance was extended to August 3, 2006, with a reminder that the existing license expired on August 19, 2006. CHS followed with reminder telephone calls on July 19 and 20, followed by another letter on July 25, 2006, that all remaining items must be completed by August 3, 2006. Petitioner demonstrated compliance with four of the items, but did not provide Radon Test results or proof that her 2A10BC fire extinguisher was tagged and inspected. On August 18, 2006, the foster child, living in Petitioner's home, was removed. On August 19, 2006, Petitioner's family foster care license expired by operation of law, without Petitioner having submitted a completed application package to CHS. On August 28, 2006, Respondent sent Petitioner a notice of intent to deny her application for relicensure. The reasons for the denial were outlined on the four-page letter. Petitioner objected to the notice and requested a formal hearing, and this proceeding followed. From the evidence, it is apparent that CHS worked diligently in helping Petitioner transfer her existing license two times, when Petitioner moved without notifying CHS before the move; and encouraged and worked with Petitioner to complete the application for renewal a month before the expiration of her license. However, due to Petitioner's procrastination and/or resistance, the completed documentation was not sent in to Respondent prior to the expiration of her prior license.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that: Petitioner, Antoinette Scanziani's, application for a renewal of her family foster home license be denied. DONE AND ENTERED this 11th day of May, 2007, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE 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 11th day of May, 2007.
The Issue The issue presented in this case is whether Respondents' foster home license should be revoked.
Findings Of Fact Respondents were first licensed as a family foster home in April 1994. As a result of Respondents' obtaining a foster home license, the Department put in their care: M.A1.A and M.Au.A, brother and sister; and, J.H. and L.H., brother and sister. M.Au.A was nine years old and her brother M.A1.A was eight years old. J.H. was eight years old and his sister, L.H., was five years old. J.H. and L.H. were later adopted by their foster parents, Robert and Irene Holmes. J.H. was born September 2, 1991. He was, and is, a very troubled young man. Schizophrenia runs in his biological family and his mother abused chemicals during her pregnancy. He is diagnosed with Attention Deficit-Hyperactivity Disorder (ADHD) and has episodes of violence, aggression, unpredictability, poor impulse control, and agitation. He is likely to be pre-schizophrenic and, given his behavior, could develop full schizophrenia in the future. Even though only diagnosed with ADHD and in addition to stimulant medication prescribed for his ADHD, J.H. takes several psychotropic medications generally prescribed for manic and depressive behavior and other mood disorders. However, these drugs do not seem to fully control his behavior. Because of his aggression and severe behavior problems, J.H. has been involuntarily committed multiple times and has been repeatedly recommended for a residential, therapeutic foster home placement. Unfortunately, for various reasons, the Department has not provided J.H. a residential, therapeutic foster home placement. On October 7, 1999, the Department received an allegation of abuse against Respondents. The allegation involved J.H. The allegations involved alleged favoritism of L.H. over J.H., abandoning J.H. with teachers, emotional abuse, and not wanting him in their home. The Department's investigation, on very tenuous evidence, verified abuse for neglect - abandonment; neglect - failure to protect; abuse - other mental injury; neglect - inadequate supervision; and abuse - confinement/bizarre punishment. The report further found some indication of medical neglect and other physical injury-threatened harm. Because of the abuse report, the Department took L.H. and J.H. into shelter care on October 8, 1999, and filed a dependency action regarding J.H., Case No. 99-628-CJ. Additionally, based on the verified findings of the abuse report, the Department revoked Respondents' foster home license. By Order of the Circuit Court dated July 12, 2000, the dependency action was dismissed for lack of evidence and an utter lack of co-operation by Department's personnel and witnesses during the dependency action. J.H. was returned to Respondents' home and has remained with them to date. L.H. was returned to Respondents' home sometime before her brother's dependency action was concluded. Put simply, at the hearing, none of the allegations of the abuse report or facts supporting the verified findings were supported by the evidence since only uncorroborated hearsay was introduced at the hearing. Moreover, even though the evidence was hearsay, many of the allegations appeared from all the testimony to have been taken out of context and given meanings which were not warranted when their context was known. Significantly, the Department did not call J.H. to testify about any of these allegations. To the contrary, the testimony of various witnesses indicated that Respondents did, in fact, keep a very neat, tidy, and orderly foster household and that J.H. was not abused or neglected. The evidence presented by Respondents and the testimony of their witnesses indicate that J.H. was provided a safe environment. The teachers provided temporary care during the period of time alleged to be when Respondents were neglecting J.H. by being out of town. The witnesses, including the teachers, stated that the plan was that they would care for J.H. until the return of Respondents. Furthermore, there was never any indication that the child was mistreated or neglected or left without care by Mrs. Holmes after returning from a wedding out-of-state. Finally, there was no evidence of noncompliance with any treatment plan, that the multiple involuntary commitments were in any way mentally abusive of J.H., or that the quiet times J.H. needed to calm himself were intended to be time-out punishment or were inappropriate or bizarre punishments of J.H. Because the allegations of abuse were not established, there is no basis on which to revoke Respondents' foster home license. Therefore, Respondents are entitled to their foster home license.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Children and Family Services enter a final order not revoking Robert and Irene Holmes' family foster home license. DONE AND ENTERED this 24th day of December, 2001, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 December, 2001. COPIES FURNISHED: Keith J. Ganobsik, Esquire Department of Children and Family Services 11351 Ulmerton Road, Suite 100 Largo, Florida 33778-1630 Charles P. Vaughn, Esquire 120 North Seminole Avenue Inverness, Florida 34450-4125 Peggy Sanford, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
The Issue The issue in this case is whether Petitioners should be issued a family foster home license.
Findings Of Fact Based upon the testimony, exhibits, and stipulated facts in the Joint Stipulation, the following Findings of Fact are made: Parties and Process Petitioners, who are husband and wife, submitted an application for licensure as a family foster home. Although this was an application for initial licensure, Petitioners were previously licensed as a foster home from August 2013 to October 2019.1 The Department is the state agency responsible for licensing foster care parents and foster homes, pursuant to section 409.175, Florida Statutes, and Florida Administrative Code Chapter 65C-45. Petitioners voluntarily relinquished their foster home license on or about October 28, 2019, around the time two female foster children, S.W. and H.C.S., were removed from their care. It is unclear whether the children were removed because of an abuse investigation related to H.C.S., or whether they were removed because Petitioners closed their home to foster children. Regardless, Mrs. Gilio testified that they let their license lapse because they needed a break after fostering H.C.S. The Department administers foster care licensing by contracting with third-party private entities. In Circuit 13, where Petitioners are located, the Department contracted with Eckerd Community Alternatives, doing business as Eckerd Connects (Eckerd), to be the agency responsible for facilitating foster care licensing. Eckerd has subcontracted with Children's Home Network (CHN) to facilitate foster care licensing. 1 Petitioners had previously been denied a foster care license in 2009. At the time relevant to Petitioners, the Department used the "attestation" model of foster home licensing. In this model, a private licensing agency with whom the Department has contracted will conduct a home study on the foster home applicants and attest to the applicants' fitness to be licensed. The Department does not have the discretion to deny the license once the licensing agency has attested to the appropriateness of the applicants, except if they have been named as caregivers in three or more abuse reports within five years. If there are such abuse reports, the Department is required to review those reports and make a final decision regarding the application. There is no requirement that the reports result in a finding of actual abuse for them to be reviewed by the Department.2 Although it is unclear when Petitioners submitted their application for the foster care license in this case, sometime in late 2019, CHN conducted and compiled a Unified Home Study (home study), which included Petitioners' background screening; previous reports of abuse, abandonment, or neglect involving the applicants, and references from all adult children. The home study was reviewed at a meeting on December 19, 2019, by Eckerd, through the Committee. The Committee considered the application, home study, and licensing packet and heard from various agency staff. Petitioners were also allowed to voice comments and concerns at this meeting. Had the Committee approved the application, it would have been sent to the Department along with an attestation that stated the foster home meets all requirements for licensure and a foster home license is issued by the Department. However, the Committee unanimously voted not to recommend approval of a foster home license to Petitioners. 2 The categories of findings for an abuse report are "no indicator," "not substantiated," and "verified." "No indicator" means there was no credible evidence to support a determination of abuse. "Not substantiated" means there is evidence, but it does not meet the standard of being a preponderance to support that a specific harm is the result of abuse. "Verified" means that there is a preponderance of credible evidence which results in a determination that a specific harm was a result of abuse. Frank Prado, Suncoast Regional Managing Director for the Department, ultimately decided to deny Petitioners' application for a family foster home license due to their prior parenting experiences, the multiple abuse reports regarding their home, and the recommendation of the Committee. Mr. Prado expressed concern about the nature of the abuse reports and Petitioners' admission that they used corporal punishment on a child they adopted from the foster care system in the presence of other foster children. Petitioners' Parenting History Petitioners have seven children: one is the biological son of Mr. Gilio; another is the biological son of Mrs. Gilio; and five were adopted through the foster care system in Florida. Of these seven children, six are now adults. Three of the adopted children, Jay, Sean, and Jameson, are biological brothers who Petitioners adopted in 2001. Shawna, who was adopted around 2003, is the only adopted daughter. The Petitioners' one minor child, H.G., is a nine-year-old boy and the only child who resides in their home. H.G. suffers from oppositional defiance disorder. Petitioners admitted they adopted Shawna after there had been allegations of inappropriate behavior made against Jay, by a young girl who lived next door to Petitioners. Later, while they were living with Petitioners, Jay, Sean, and Jameson were arrested for sexually abusing Shawna at different times. As a result, one or more of the sons were court-ordered to not be around Shawna, and the other brothers were required to undergo treatment and never returned to Petitioners' home. During the hearing, both Petitioners seem to blame Shawna, who was nine years old when the sexual abuse by Jay in their home allegedly began, for disrupting their home. They accused her of being "not remorseful" and "highly sexualized." Regarding the abuse by Sean and Jameson, which occurred when Shawna was approximately 12 years old, Mr. Gilio stated Shawna thought it was okay to have sex with boys, and it was "hard to watch every minute of the day if they're, you know, having sex." When Shawna was about 19 years old, she filed a "Petition for Injunction for Protection Against Domestic Violence" against Mr. Gilio in circuit court. The Petition outlined allegations of past sexual comments and inappropriate disciplinary behavior from 2007 to 2012, while she lived with Petitioners. Mr. Gilio denied at the hearing having any knowledge about the Petition against him, but admitted he made comments about Shawna's breasts. As part of the application and home study process, the CHN collected references from Petitioners' former foster children and adult children. Shawna (Petitioners' only adopted daughter) gave them a negative reference and specifically stated she would not want female foster children to live with Petitioners. Reports of Abuse Petitioners were involved in 24 abuse reports during their time of licensure between 2013 and 2019. During the past five years, Petitioners were named as either alleged perpetrators or caregivers responsible in eight reports that were made to the Florida Child Abuse Hotline (Hotline). Of those eight reports, five of them named Mr. Gilio as the alleged perpetrator causing a physical injury, one report named Mr. Gilio as the caregiver responsible for a burn on a foster child, and one report named Mr. Gilio as an alleged perpetrator of sexual abuse against a foster child. Mrs. Gilio was named as an alleged perpetrator of asphyxiation as to a foster child. Seven of the reports in the last five years against Petitioners were closed with no indicators of abuse. One of the abuse reports was closed with a "not substantiated" finding of physical injury. In this report, Mr. Gilio was the alleged perpetrator and the victim was H.G., Petitioners' minor adopted son. Additionally, after Petitioners let their foster license lapse in October 2019, a subsequent report was made against Mr. Gilio for improper contact with a former foster daughter. This incident was discussed at the Committee meeting, but it was unclear if this allegation was ever investigated. Corporal Punishment According to the Department's rules, discussed below, foster parents are forbidden to engage in corporal punishments of any kind. In 2019, there were two reports alleging Mr. Gilio of causing physical injury by corporal punishment on H.G. At the time, there were other foster children in the household. Technically, Mr. Gilio was allowed to use corporal punishment on H.G. because he was no longer a foster child and had been adopted from foster care. If a parent uses corporal punishment on a child, there can be no findings of abuse unless the child suffered temporary or permanent disfigurement. However, foster care providers are not permitted to use corporal punishment. More than one witness at the hearing had concerns about the use of corporal punishment against H.G. because of his operational defiance disorder and because other foster children (who may have been victims of physical abuse) were in the household. Brendale Perkins, who is a foster parent herself and serves on the Hillsborough County Family Partnership Alliance, an organization that supports licensed foster parents, testified she witnessed Mr. Gilio treating a foster child in his care roughly. At the time, she was concerned because this was not the way children in foster care (who may have previously been victims of abuse) should be treated. She did not, however, report it to any authorities. The Department established through testimony that the policy against using corporal punishment is taught to all potential foster families. Mr. Gilio, however, denied ever being instructed not to use corporal punishment against foster children or while foster children were in the home. He also claimed that H.G.'s therapist had never recommended any specific punishment techniques. The undersigned finds Mr. Gilio's testimony not credible. Cooperation with Fostering Partners The Department established that decisions regarding foster children are made within a "system of care" which includes input from case managers, guardian ad litem (GAL), and support service providers. The relationship between Petitioners and others working as part of this system during the time of fostering was not ideal; it was described by witnesses as "tense" and "disgruntled." One witness, a supervisor at CHN, testified Mr. Gilio was not receptive or flexible when partnering with other agencies, and was not always open to providing information when questioned. As an example, Petitioners fired a therapist without consulting with the CHN staff or the GAL for the child. At the final hearing, Mr. Gilio continued to claim he did nothing wrong by not consulting with others in the system regarding this decision. Kristin Edwardson, a child protection investigator for the Hillsborough County Sheriff's Office, was tasked with investigating the reports of abuse and neglect against Petitioners that had been reported to the Hotline. She testified she was concerned with the level of cooperation they provided her and other investigators. Although they ultimately would cooperate, Petitioners made it difficult for the investigators and would often "push back" and make the situation more stressful. She described Mr. Gilio as being disrespectful, belittling, and dismissive of her. Licensing Review Committee On December 19, 2020, the Committee, made up of eight individuals, was convened to review Petitioners' application for a foster home license. When determining whether a family should receive a foster home license, the Committee is to evaluate the applicants' background, parenting experience, references from community partners, and the family's openness and willingness to partner. Sheila DelCastillo, a regional trainer with the GAL program, was a Committee member. She had prior knowledge of Petitioners from a report that a foster child's room in Petitioners' home smelled strongly of urine during a home visit and that GAL staff had found a prescription bottle beside the child’s bed that belonged to Mr. Gilio. With regards to Petitioners' application, she read the licensing review packet and home study that contained numerous abuse reports. Ms. DelCastillo was concerned about the 24 abuse reports Petitioners’ received during their time of licensure, the negative reference from Shawna, their use of corporal punishment on H.G., and Petitioners' downplaying of the events that led to multiple abuse reports. Michelle Costley, a licensing director with CHN in charge of level 2 traditional foster homes, also served on the Committee. Ms. Costley has 14 years of experience, with seven of those years spent in foster care licensing. As director of licensing, Ms. Costley was concerned about the number of abuse reports received regarding Petitioners; Mr. Gilio's inability to be open and flexible when working in partnership with other agencies; and the needs of Petitioners' child, H.G. She was also concerned about Petitioners' decision to fire a therapist of a foster child without consulting the GAL or the other individuals involved with that child. Regarding the alleged abuse, Ms. Costley was concerned that most of the reports regarding Petitioners involved allegations of physical abuse, inappropriate touch of a sexual nature, or sexual abuse, with most alleged victims being younger than eight years old. She explained that even though these reports could not be "verified," these types of allegations are harder to establish because testimony by children of that age often is unreliable and there usually must be evidence of physical injury, which no longer is present by the time the alleged abuse is investigated. Ms. Perkins also served on the Committee. Ms. Perkins served as a foster parent mentor, working with foster parents to help them build co- parenting strategies and navigate the system of care. She has been a licensed foster parent for 13 years and has adopted 11 children from foster care. As stated earlier, she was familiar with Petitioners from the Hillsborough County Family Partnership Alliance meetings. Ms. Perkins was concerned with the number of abuse reports with similar allegations, but different victims. She also discussed Petitioners' use of corporal punishment, noting that they could have been using verbal de-escalation methods instead of corporal punishment due to the traumatic histories of many foster care children. Ms. Edwardson also served on the Committee. In addition to her personal interactions with Petitioners, Ms. Edwardson was concerned about the totality of the information presented to the Committee regarding the abuse reports and Mr. Gilio's lack of cooperation. She noted that although they were not substantiated, the number and nature of the reports related to young children were of concern. Based on the Committee notes and transcript of the meeting, Petitioners were allowed to respond to the Committee's questions at the December 2019 meeting. They argued that none of the abuse reports were proven true and any injuries were not their fault. They seemed more concerned about who made the abuse reports and why the abuse reports were called in than whether the foster children were protected in their care. For example, although Mr. Gilio admitted to hitting H.G. with a stick twice as big as a pencil, he denied any bruising was caused by the stick. A report of a burn on another child was explained by Mr. Gilio as an accident that occurred while he was teaching her how to iron; he could not understand why this was reported as possible abuse. Ms. Gilio explained that H.C.S. was a very active child which resulted in her needing stitches and requiring restraint. After hearing from Petitioners, the Committee members discussed their concerns that Petitioners were not forthcoming about the various abuse incidents, and would not take responsibility for any of the injuries or issues raised by the abuse reports. All eight members voted to not move Petitioners' application forward.
Recommendation Based on the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Department of Children and Families denying a family foster home license to Petitioners, Mary and James Gilio. DONE AND ENTERED this 9th day of November, 2020, in Tallahassee, Leon County, Florida. S HETAL DESAI Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of November, 2020. COPIES FURNISHED: Anthony Duran, Esquire Tison Law Group 9312 North Armenia Avenue Tampa, Florida 33612 (eServed) Deanne Cherisse Fields, Esquire Department of Children and Families 9393 North Florida Avenue Tampa, Florida 33612 (eServed) Lacey Kantor, Esquire Department of Children and Families Building 2, Room 204Z 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed) Javier A. Enriquez, General Counsel Department of Children and Families Building 2, Room 204F 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed) Chad Poppell, Secretary Department of Children and Families Building 1, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed)
The Issue Whether Petitioner's application for renewal of her family foster home license should be denied on the grounds set forth in the June 20, 1995, letter from the Department of Health and Rehabilitative Services (HRS), Respondent's predecessor, to Petitioner.
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made: Respondent is (as was its predecessor, HRS) a state government licensing and regulatory agency. From September of 1989 to June 30, 1995, Petitioner was licensed by HRS (on a yearly basis) to operate a family foster home at her residence in Palm Beach County. In May of 1994, as part of the licensure renewal process, Petitioner signed an "Agreement to Provide Substitute Care for Dependent Children" (Agreement). In so doing, she agreed that she would, as a licensed foster parent, among other things, "comply with all requirements for a licensed substitute care home as prescribed by the department," "immediately report any injuries or illness of a child in [her] care," and "abide by the department's discipline policy." The previous day (May 23, 1994), Petitioner had received and signed a copy of HRS's "discipline policy," which provided as follows: FOSTER PARENT(S): You are aware that for some time, Health and Rehabilitative Services has discouraged the use of Physical punishment, including spanking, for children in foster care. Now, however, we have an Administrative Rule statewide which prohibits foster parents from using corporal punishment on foster children. This section of administrative Rule 10M- 6, which deals with discipline is reproduced in the following paragraph. "Licensing and relicensing procedure developed by the Department shall include the presentation of written foster care disciplinary policies to applicants and licensed foster parents to ensure that appropriate nonabusive disciplinary practices are used in dealing with foster children's behavior. Discipline is a training process through which the child develops the self- control, self-reliance and orderly conduct necessary for them to assume responsibilities, make daily living decisions and live according to accepted levels of social behaviors. The purpose of discipline is education and rational. It focuses on deterring unacceptable behavior by encouraging the child to develop internal controls. Foster parents are expected to define rules which establish limits and types of acceptable behavior. These rules must be clearly explained to each child and applied equally to all children. Prohibited disciplinary practices include group punishments for misbehavior of individuals; withholding of meals, mail or family visits; hitting a child with an object; spanking a child; physical, sexual, emotional and verbal abuse; humiliating or degrading punishment which subjects the child to ridicule; being placed in a locked room; and delegation of authority for punishment to other children or persons not known to the child. The use of isolation shall be used only for short periods of time as a therapeutic measure when a child's behavior is temporarily out of control. Such periods of isolation shall be observed and supervised by the foster parent to ensure the safety of the child." If you have problems with this new rule, please discuss this with your licensing counselors who will be able to help you work out alternative disciplinary techniques for each child, according to his/her needs. My signature acknowledges that I have read this statement, that I understand the content and agree to abide by it. A. G. is a 12 year-old foster child who currently resides in Boys Town in Tallahassee. Before entering the foster care system, he had been the victim of abuse. In 1994, A. G. lived in Petitioner's family foster home along with three other male foster children, J. W., M. M., and B. P., all of whom were teenagers with troubled pasts and juvenile records. On or about December 15, 1994, the day before A. G. was scheduled to leave Petitioner's home for another foster home, the other boys angrily reported to Petitioner that A. G. had misappropriated a gift certificate that belonged to M. M. and a watch that belonged to B. P. M. M. was particularly upset and angry about what A. G. had done. Upon receiving this report, Petitioner instructed the boys to "take care of" the matter. The boys then went to A. G.'s room and proceeded to hit A. G. with their hands and a belt. A. G. sustained a number of bruises on his buttocks and the back of his legs as a result of the attack. A. G. yelled and screamed as he was being hit. Petitioner was in her bedroom, which was adjacent to the room where the beating took place. At no time during the attack did she leave her bedroom to tell the boys to stop beating A. G., nor did she take any other action to stop the beating. Petitioner exercised extremely poor judgment in instructing the older boys to "take care of" the matter. She should have realized that the carte blanche she gave J. W., M. M., and B. P., who were upset and angry with A. G., placed A. G.'s physical safety at risk. She compounded her error by not carefully monitoring the older boys subsequent activities to make sure that they resolved the matter appropriately without harming A. G. The following morning, A. G. left Petitioner's home for another foster home, that of Janet Kerimoglu and her husband. A. G. arrived at the Kerimoglu home with very few belongings. Moreover, his physical appearance concerned Ms. Kerimoglu. A. G. appeared to be very thin. Furthermore, he had head lice and fresh bruises on his body. When asked about the bruises, A. G. explained that he had been beaten up by some teenagers the day before at Petitioner's home. A report that A. G. had been the victim of abuse while at Petitioner's home was made to HRS's abuse registry. The report was investigated by HRS's protective services investigative unit. On January 10, 1995, following the completion of the investigation, FPSS Report No. 94-117809 issued. The report classified as "proposed confirmed" the allegation that Respondent was guilty of neglect in connection with the beating that A. G. received at her home on or about December 15, 1994. According to the report, the beating occurred "because of [Petitioner's] lack of supervision and [her] failure to protect [A. G.]," a finding which is supported by the preponderance of the record evidence in the instant case. A request to expunge or amend the report was denied on June 6, 1995. By letter dated June 20, 1995, Petitioner was advised that her foster family home license would not renewed because of the finding of neglect made in FPSS Report No. 94-117809.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order denying Petitioner's application for renewal of her family foster home license. DONE AND ENTERED this 4th day of September, 1998, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 4th day of September, 1998.
The Issue Should the renewal of Petitioners' family foster home license for the 1995- 96 license year be denied?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings are made: At all times pertinent to this proceeding, the Department was the agency in the State of Florida responsible for the initial licensing and relicensure of family foster homes and foster parents. Petitioners Carmen Torres and Angel Torres (Petitioners) were licensed by the Department as foster parents and issued a Certificate of License, Certificate Number 0894-13-3, to operate the C and F Foster Home located at 801 North Anoka Avenue, Avon Park, Highlands County, Florida. The license was issued for a period of one year beginning August 12, 1994, and ending on August 12, 1995, unless renewed, extended, withdrawn, or revoked for cause. Sometime prior to August 12, 1995, the procedure set forth in Rule 10M- 6.020, Florida Administrative Code, for relicensing Petitioners was initiated by the Department. During the relicensing process, allegations of bizarre punishment and improper confinement of foster children were made against Petitioners. Based on these allegations, the Department denied Petitioners the renewal of their family foster home license, but the Department failed to notify Petitioners of that decision. Therefore, Petitioners were not given a point of entry to contest the Department's decision. After Petitioners' family foster home license expired on August 12, 1995, Petitioners contacted the Department's Bartow, Florida office by telephone to inquire as to why their family foster home license had not been renewed. In response to the Petitioners' telephone inquiry, the Department, by letter dated April 30,1996, advised Petitioners that their family foster home license had lapsed on August 12, 1995. The letter also advised Petitioners that their family foster home license had been denied primarily on the basis of "substantiated allegations of bizarre punishment and improper confinement of foster children," and further advised Petitioners of their right to contest that decision. C. S., a 12-year old foster child that was placed with Petitioners for approximately a week sometime around April 1995, testified that he was treated "pretty good" by the Torres; that although he was required to watch television a "lot" on a screened-in porch, he did not consider himself being improperly confined because he was allowed to leave the porch to use the bathroom and to eat. The Torres kept the children on the porch so that the Torres could maintain contact with the children while they worked in the home. C. S. also testified that he was not particularly "crazy" about the food prepared by Petitioners because it contained peppers and onions. C. S.'s younger brother, B. S., and younger sister, A. S., both foster children, were also placed with Petitioners at the same time. C. S. did not remember any of them being mistreated or punished in any fashion. The Department failed to present evidence to show that Petitioners punished the foster children placed under their care in a bizarre manner or any other manner, or that they improperly confined foster children placed under their care, or mistreated foster children placed under their care, notwithstanding the testimony of Liz Peralta (Torres) to the contrary, which I find totally lacking in credibility. It was obvious that this witness, a former daughter-in-law, had an "axe to grind" with Petitioners. Selma T. Sanford-Huber, a Department employee responsible for licensing foster parents and family foster homes, testified that she was in Petitioners' home around April 23, 1995, for the purpose of relicensing. Huber further testified that due to the allegations, all foster children were removed from Petitioners' home on May 5, 1995, and that no other foster children were to be placed in Petitioners' home during the investigation. Although Huber testified that she was concerned about the foster children in Petitioners' home, she was unable to present evidence of anything specific that would justify her concern for the children and require the denial of the renewal of Petitioners' family foster home license for the 1995-96 license year. It is clear from the evidence, or from the lack of evidence, that the Department has failed to prove the allegations set forth in its Notice of Denial dated April 30, 1996. Likewise, it is clear from the record that but for the allegations of "bizarre punishment and improper confinement" the Petitioners' family foster home license would have been renewed for the 1995-96 license year. However, that license would have expired on August 12, 1996, and there is no evidence that the procedure for relicensing Petitioners for the year 1996-97 is in progress or has been accomplished.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law it is, accordingly, recommended that Petitioners' family foster home license be renewed for the 1995-96 license year which ended on August 12, 1996. It is further recommended that should Petitioners wish to renew their family foster home license for the 1996-97 license year, which began on August 12, 1996, then the Department shall, in full cooperation with Petitioners, proceed with all due haste to complete the relicensing procedures outlined in Rule 10M-6.020, Florida Administrative Code. Upon completion of those procedures, should the Department's decision be to deny Petitioners renewal of their family foster home license for the 1996-97 license year, then the Department should immediately notify Petitioners of its decision and advise them of their right to a hearing to contest the denial. RECOMMENDED this 29th day of October, 1996, at Tallahassee, Florida. WILLIAM R. CAVE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-66847 Filed with the Clerk of the Division of Administrative Hearings this 29th day of October, 1996. COPIES FURNISHED: Gregory D. Venz, Agency Clerk Department of Health and Rehabilitative Services Building 2, Room 204X 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard Doran General Counsel Department of Health and Rehabilitative Services 1317 Winewood Boulevard, Room 201 Tallahassee, Florida 32399-0700 Angel and Carmen Torres 801 North Anoka Avenue Avon Park, Florida 33825 Jack Emory Farley, Esquire Department of Health and Rehabilitative Services 270 Bartow Municipal Airport Bartow, Florida 33830
The Issue In a letter dated February 17, 1998, the Department of Children and Family Services(DCFS) notified Lois Kelly that DCFS intended to revoke her foster home license for five specified reasons. Later, during the course of pre-hearing discovery, DCFS narrowed the issues to three violations: A substitute care parent must not use corporal punishment of any kind. 65C-13.010(l)(b)5f, Florida Administrative Code (FAC). You have used corporal punishment to discipline the children in your care. More specifically, the children report that you routinely slapped them and hit them with a "switch." . . . The home and premises must be free from objects, materials, and conditions which constitute a danger to children. 65C-13.011(12)(b), FAC. The yard area was full of trash, the boys' room smelled of urine and there were roaches crawling around at the time the licensing representative visited the home. . . . A substitute care parent must not punish children for bed-wetting for errors during the toilet training process. 65C-13.010(l)(b)5i, FAC. Children in your care were punished by corporal punishment for bed-wetting. The issues in this proceeding are whether those violations occurred and if so, whether they constitute bases for license revocation.
Findings Of Fact Respondent, Lois Kelly, was licensed as a foster home by the Department of Health and Rehabilitation Services (HRS) on September 29, 1995. She was a working, single woman who had raised one child, now an adult son, who lives on his own. HRS was the predecessor to the agency now known as the Department of Children and Family Services, the Petitioner in this proceeding. Ms. Kelly's foster home license was for three children; the maximum number of children under any foster home license was five. However, at various times during the two years that she was licensed, Ms. Kelly cared for four, six, and (for one weekend) eight children placed with her by HRS foster care workers. Juanita Warren White was assigned to be Ms. Kelly's foster home licensing representative in 1996. Ms. White visited the Kelly home three times: July 11, 1996; August 1, 1996; and September 24, 1996. On her first visit Ms. White noted wet carpet and a strong smell of urine. There was wet carpet hanging outside. The toilet in the children's bathroom had overflowed after one of the boys hid a toy in the commode. In addition, there was an appearance of general disarray, including garbage in the garage where the children played. By the September visit, Ms. Kelly had corrected the series of items noted as problems by Ms. White. Ms. Kelly was relicensed for another year. Karen Norton was assigned as Ms. Kelly's licensing representative in 1997. After one unsuccessful attempt when Ms. Kelly was not home, Ms. Norton's first home visit was April 11, 1997. On this date, there were four foster children residing with Ms. Kelly: J. and B., pre-school toddlers; K., 8 years old; and H.J., 9 years old. The bedroom shared by the two young boys was cluttered with toys and clothes; a roach was crawling up the wall. In the bedroom shared by the older boys, there was a strong odor of urine. One of the boys was a bed-wetter. Ms. Norton also observed a bleach bottle stored on the kitchen floor within reach of the children. She found the garage had a seating area with a sofa and TV set that was turned on. The garage included tools and yard equipment. She observed trash and an old grill/smoker in the backyard and a discarded refrigerator turned to the wall with a make-shift basketball hoop set up in the refrigerator coils. After completing her inspection, Ms. Norton advised Ms. Kelly that the trash would have to be picked up, the bleach stored properly, the refrigerator and cooker disposed of, the urine cleaned up, and a bug extermination scheduled. Ms. Norton returned on May 6, 1997, for an unscheduled visit. The trash was gone, but the refrigerator remained and Ms. Kelly said it would be removed within a week. There was no urine odor in the boys' bedroom and Ms. Kelly told her that she required the bed-wetting child to clean his bed with bleach water. Ms. Norton explained that it was inappropriate and dangerous to have a child use bleach for cleaning. Ms. Norton was concerned about hazardous conditions in the Kelly home, including the obvious use of the garage as a play-room. Some time between May and September 1997, HRS learned that Ms. Kelly was using corporal punishment on her foster children. The children were removed from her home and after being told that she would be charged with child abuse, Ms. Kelly agreed to give up her license; no children have been placed in her home since September 1997. At hearing, Ms. Kelly confirmed that she would not have relinquished her license without the threat and that she still wants to be a foster home parent. The agency has proceeded with a license revocation and provided notice and opportunity for a hearing in its letter dated February 17, 1998. Two children, former foster child residents in Ms. Kelly's home, testified at hearing: L.D.-age 11; and C.W.-age The testimony of both children was credible regarding discipline used by Ms. Kelly. Ms. Kelly disciplined two pre-school aged boys by switching them on their legs or hands with a switch from the yard. The 3 year-old cried; the 5-year old did not cry. Punishment occurred when the boys broke something belonging to Ms. Kelly. On another occasion Ms. Kelly came home and found that L.D. had been tussling with a 5-year old boy and had ripped the boy's underwear, which L.D. claimed was his. Ms. Kelly took L.D. into the hall outside the bedroom and swatted him on his arms, legs and waist with her open hand. She continued hitting him when he was on the floor. He was afraid and cried. Ms. Kelly also spanked K.H. on at least two occasions for wetting his bed. She used her hand to hit him. She also continued to require him to clean up the urine with a rag and bleach. Ms. Kelly was trained and given hand-outs regarding appropriate discipline prior to her licensure as a foster home. She understood that she was never permitted to strike the children or use any form of corporal punishment. Corporal punishment is harmful to foster children even when it is not excessive, as many foster children have come from abusive environments.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: that the agency issue its final order revoking the foster home license of Lois Kelly. DONE AND ENTERED this 25th day of February, 1999, in Tallahassee, Leon County, Florida. MARY CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of February, 1999. COPIES FURNISHED: Timothy Straus, Esquire Moyer and Straus 2627 West State Road 434 Longwood, Florida 32779 Carmen Muniz Sierra, Esquire Department of Children and Family Services 400 West Robinson Street Orlando, Florida 32801 Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John S. Slye, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue is whether Petitioners should be licensed to operate a foster home in Marianna, Jackson County, Florida.
Findings Of Fact Respondent licensed Petitioners to operate a foster home in Respondent's District No. 9, West Palm Beach, Florida, beginning in 1995 through April 1, 2000. The Department of Health, under its Children's Medical Services Program, licensed Petitioners as medical foster parents for almost two years of that time. At all times material to this proceeding, Petitioners had five children living with them in West Palm Beach, Florida. Two boys, aged six and three, were Petitioners' adopted sons. A two-year-old boy, A.B., and his one-year-old sister, T.B. were medical foster children. C.S. was a two-year-old female foster child. In August 1999, Petitioners bought a home in Respondent's District No. 2, which includes Marianna, Jackson County, Florida. Mr. Mayes is a carpenter and intended to make repairs to the home before moving his family to North Florida. Petitioners knew their foster home license in District No. 9 was not transferable to District No. 2. Therefore, they applied for a foster home license in District No. 2. Petitioners wanted their three foster children to move with them to Mariana, Florida. Petitioners hoped to adopt C.S. and to keep A.B. and T.B. in the same placement until another family adopted them. All of the foster children had been in Petitioners' home since they were a few days old. A.B. was a very active two-year-old child. He regularly climbed out of his crib. On one occasion he climbed up on the stove and turned on the burners. He seemed to "have no fear." In the fall of 1999, Mrs. Mayes requested Respondent to provide her with behavior management assistance for A.B. Because Petitioners were planning to move out of District No. 9, Respondent decided to wait until A.B. was settled after Petitioners' move to perform the behavior management evaluation. In the meantime, Petitioners could not keep A.B. in his highchair during mealtime. They had difficulty keeping him in his crib. They bought a safety harness and attempted to use it to keep A.B. in his crib on one occasion and in his highchair on another occasion. A.B. was able to wiggle out of the harness on both occasions. Petitioners subsequently discarded the harness. They resorted to tightening the highchair's feeding tray in order to keep A.B. still long enough to feed him. Petitioners never used and never intended to use the harness to punish A.B. Petitioners usually disciplined the children by placing them in timeout for one minute per year of age. Timeout for Petitioners' foster children usually meant being held in Mrs. Mayes' lap. Mrs. Mayes admitted using the safety harness on A.B. during a telephone conversation with Respondent's medical foster care counselor in January 2000. The counselor informed Ms. Mayes that foster parents are not allowed to use a harness to restrain foster children. Prospective foster parents must participate in and complete training classes designed by Respondent. Persuasive evidence indicates that Respondent teaches prospective foster parents during this training that children should never be restrained by a harness. Petitioners have taken these training classes. If A.B. and the other children were free to go into a bedroom, they would pull everything out of the chest of drawers. They would flush objects down the toilet in the bathroom. Mr. Mayes put a hook-type latch on the door to the Petitioners' bedroom, A.B.'s bedroom, and the bathroom in the hall. The primary purpose of the door latches was to keep the children out of unsupervised areas of the home. Petitioners never used the door latches as a means of discipline. On two occasions Mrs. Mayes latched the door to A.B.'s room while he was in the room asleep. The first time she latched the door while she went to the mail box in front of her home. The other time, she latched the door while she bathed another child who had a doctor's appointment later that afternoon. On both occasions, A.B. was locked in his room for only a few minutes. Petitioners knew that they needed permission from Respondent in order to take A.B., T.B., and C.S. out of the state on vacations. On several occasions, Respondent's staff gave Petitioners permission to take the foster children to North Florida for short visits during the time that Mr. Mayes was remodeling the home. Respondent's staff approved these short visits as if they were vacations. Petitioners knew that they needed to be licensed in Respondent's District No. 2 before Respondent's staff in District No. 9 could approve the permanent transfer of the foster children. At the same time, the Respondent's staff in District No. 2 could not license Petitioners until they actually made the move with all of their furniture. Petitioners discussed their dilemma with several members of Respondent's staff in District No. 9. During these conversations, Petitioners asked Respondent if they could take the children with them and treat the time that they would be temporarily unlicensed as if it were a vacation. At least one member of Respondent's staff responded that treating the move initially as if it were a vacation was "an option that could be explored." Respondent's staff subsequently advised Petitioners that under no circumstances could the foster children move to Jackson County, temporarily or permanently, until Petitioners were properly licensed. Petitioner's never attempted to deceive Respondent; to the contrary, they were openly looking for an acceptable way to take the foster children with then when they moved. They never intended to circumvent the proper licensing process. Based on Petitioners' former experience with Respondent, they believed that treating the move as a vacation would be an appropriate way to solve what was otherwise a "catch twenty-two" situation. By letter dated March 14, 2000, Respondent's staff in District No. 2 advised Petitioners that they would receive a provisional foster home license as soon as information furnished by Petitioners and copies of Petitioners' file from the licensing unit in District No. 9 could be sent to Respondent's office in Panama City, Florida. Respondent removed the three foster children from Petitioners' home just before Petitioners moved to Jackson County on April 1, 2000. In a memorandum dated April 19, 2000, Respondent listed Petitioners' home as one of two medical foster homes in Jackson County, Florida. Despite the representation in this memorandum, Respondent issued the letter of denial on June 5, 2000.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent enter a final order denying Petitioners a foster home license. DONE AND ENTERED this 20th day of October, 2000, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 20th day of October, 2000. COPIES FURNISHED: James Mayes Gail Mayes 4561 Magnolia Road Marianna, Florida 32448 John R. Perry, Esquire Department of Children and Family Services 2639 North Monroe, Suite 252-A Tallahassee, Florida 32399-2949 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 presented is whether the Respondent committed the offenses set forth in the Administrative Complaint filed in this case and, if so, what disciplinary action should be taken.
Findings Of Fact At all times material hereto, Respondent, Kathy Bergerson, held a family foster home license for her residence issued by the Children, Youth and Family Program Office of Petitioner, Department of Health and Rehabilitative Services. As it relates to the license at issue, Respondent was first licensed by Petitioner in April 1987. In her home, Respondent was responsible for several developmentally disabled children and a developmentally disabled adult. Respondent's mother lives in an apartment adjoining the home and has access to the residence. Respondent's mother is a registered nurse. During the period since the licensure, the several incidents described in the following paragraphs occurred. Because the incidents involved Respondent or her home and the incidents were unexplained, Petitioner became concerned for the safety of the children in Respondent's care. The incidents at issue are as follows: Sometime during 1987 while one of the children was hospitalized, the child was discovered in what appeared to be a drug-induced sleep during a visit by Respondent. No harm to the child was demonstrated from the incident, and Respondent relayed the incident to Petitioner during her relicensure interview in 1988. Also, sometime in 1987, a housekeeper, provided by Metro-Dade County, allegedly assaulted Respondent's mother while attempting to steal toys and bed sheets from the home. No harm to the children was shown from the incident, and Respondent reported the incident to Petitioner during her relicensure interview in 1988. Then, early in 1988, Respondent received a delivery of medication which did not contain full amounts of the prescribed contents. The medication was delivered by a representative sent by Petitioner. No harm to the children was proven from the incident, and Respondent reported the incident to Petitioner. In July 1988, a report of the sexual abuse of the developmentally disabled adult living with Respondent was filed with Petitioner. The final disposition of the incident was not shown; however, neither Respondent nor Respondent's mother were classified as perpetrators of the alleged abuse. In September 1988, a child under Respondent's care, and custody was hospitalized after she became, untypically, lethargic and unresponsive when Respondent gave the child a dose of Panadol for her fever. Fearing that the child was allergic to the medicine, Respondent brought the bottle from which she had administered the medicine with them to the hospital, and reported her fear to the medical personnel at the hospital and to Petitioner. Although Petitioner asserted that the bottle of medicine was tested for its contents, the proof failed to demonstrate that a test was performed or the results of any such test. Respondent kept the medication for the children in a locked cabinet in her kitchen. Included in the drugs in the cabinet were Panadol, Valium and Benedryl. In addition to Respondent, Respondent's mother and nurses provided by Petitioner, on occasion, had access to the cabinet. While Petitioner contended that the Panadol given to the child was adulterated with Valium and Benedryl, the proof failed to indicate that the Panadol was altered, or that the child suffered from the ingestion of the medication. Petitioner asserted that it was unusual for a foster parent, such as Respondent, to have as many unexplained events reported within an almost two- year period. Therefore, based on the above incidents and what Petitioner perceived to be a pattern of unexplained incidents involving Respondent and her home, and after ordering a psychological evaluation of Respondent and her mother, Petitioner issued its notice of intent to revoke Respondent's family foster home license on February 14, 1989. Petitioner alleged that Respondent was not capable of handling the stresses associated with maintaining a family foster home. At the hearing Respondent demonstrated a tendency to become overly excited; however, the proof failed to demonstrate that she is unable to handle the stresses of her life. Respondent is a caring person who has an obvious interest and concern for the children in her charge. She expressed deep concern over each of the incidents recited above and, in fact, reported the majority of the incidents to Petitioner. Although the incidents described above generate concern, was not shown that the safety of the clients was endangered by the incidents.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: Recommended that the Department of Health and Rehabilitative Services issue a Final Order withdrawing its intent to revoke Respondent's family foster home license. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 15th day of December 1989. JANE C. HAYMAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Park way Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of December 1989.
