00-000730 Billie And Willie Mae Barnes vs. Department Of Children And Family Services Status: Closed Recommended Order on Wednesday, December 6, 2000.

Summary: Re-licensure of foster home would pose a relatively proscribed endangerment to children because of Petitioner foster parents` abandonment of their legally-adopted foster child. The child was left in the lobby of Respondent agency`s offices.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BILLIE AND WILLIE MAE BARNES, )

)

Petitioners, )

)

vs. ) Case No. 00-0730

)

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for final hearing

before P. Michael Ruff, Administrative Law Judge of the Division

of Administrative Hearings, in Ocala, Florida, on September 18,

2000.

APPEARANCES

For Petitioner: No appearance

For Respondent: Ralph J. McMurphy, Esquire

Department of Children and Family Services

1601 West Gulf Atlantic Highway

Wildwood, Florida 34785

STATEMENT OF THE ISSUE

The issue to be resolved in this proceeding concerns whether

the Petitioners' foster home license should be denied on the basis

that the abuse registry examined during the re-licensure process

disclosed a verified finding of abandonment of a child, recorded

against the Petitioners as perpetrators, under authority of

Section 409.175(8), Florida Statutes.

PRELIMINARY STATEMENT

This cause arose upon the denial of a re-licensure of the

Petitioners as operators of a foster home. The denial letter is

dated October 8, 1999. The license was denied on the basis that

there was an intentional or negligent act materially affecting the

health or safety of children in a foster home. Specifically, it

is alleged that on March 26, 1999, the Petitioners, or one of

them, left their adopted child, who had been in their care and

custody, at the office of the Department of Children and Family

Services in Ocala, Florida, abandoning the child with no

provisions for the child's welfare and support. The Petitioners

elected to formally challenge this denial and this proceeding

ensued.

The cause cam e on for hearing as noticed. The Petitioners

failed to appear at hearing and the counsel for the Department of

Children and Family Services (Department), after waiting

approximately one-half hour for the Petitioners to appear

proceeded to present its evidence in support of its burden of

proof. The Department presented the testimony of

Angela Juaristic, James Grant, and Mary Kirnes, Department

personnel charged with foster care supervision, licensing, and

investigation. The Respondent's Exhibits numbered one through

three were admitted into evidence. Upon conclusion of the

proceedings, the Department submitted a proposed recommended order

which has been considered in the rendering of this Recommended

Order.

FINDINGS OF FACT

1. Petitioners were licensed as a foster home and sometime

in the latter part of 1999, their licensure came due for renewal.

2. They were advised by a denial letter dated October 8,

1999, from the Department of Children and Family Services

(Department), that their home would not be re-licensed as a foster

home.

3. The initial agency decision to this effect was because

the Petitioners, or at least Mr. Barnes, had an entry on the

Department's abuse registry indicating a verified finding of

abandonment against the Petitioners.

4. The finding of abandonment involved the Petitioners'

adopted son, D.B., being left at the office of the Department's

foster care staff.

5. Apparently the Barnes had had a great deal of trouble

with D.B.'s behavior and had been unable to constructively

discipline him and improve his behavior. This apparently made

them very frustrated such that on March 26, 1999, Mr. Barnes

called the Department regarding D.B., to inform the Department

that they were simply unable to handle the child. Mr. Barnes

talked to James Grant, supervisor of the foster care unit in the

Department's Ocala office, and a witness for the Department in

this case.

6. Mr. Grant offered to provide assistance to the family to

help resolve the issues between the Petitioners and their child.

That offer of assistance was refused, however.

7. Later that day, Mr. Barnes took D.B. to the Ocala offices

of the Department's foster care unit and apparently left him

sitting in the lobby of the building which houses the foster care

staff.

8. Mr. Barnes did not speak to Mr. Grant or anyone else in a

responsible position before leaving the building and permanently

abandoning the child. He only informed the receptionist that he

was leaving the child.

9. Because of the Petitioners' actions in leaving the child

sitting in the lobby, a call was placed to the abuse hotline that

same day. Joanne Hunter was assigned as the investigator of the

abuse report. According to the final report of the investigation

that was admitted into evidence, the case was closed with a

verified indication of abandonment and neglect, the result of D.B.

being abandoned in the Department's lobby.

10. On March 27, 1999, a shelter hearing was held before a

circuit judge and D.B. was placed in the custody of the Department

due to the Petitioner's act of abandonment at the Department's

office. Subsequently, the child was adjudicated dependent and

placed in a long-term foster care placement.

11. The child remained in that foster care placement at the

time of the instant hearing. Certified copies of the judge's

shelter order and the order of adjudication and disposition have

been entered into evidence in this case.

12. Prior to their adoption by the Petitioners, D.B. and his

two siblings had been abused and neglected by their natural

parents. They had, therefore, been placed in foster care by the

Department. D.B.'s natural parents' parental rights had been

terminated because of the uncorrected and continuing abuse and

neglect of D.B. and his two siblings.

13. The Petitioners had adopted D.B. and his two siblings.

Children who have been abused and neglected or abandoned by their

parents are especially vulnerable and require the greatest degree

of stability in their home life that is possible.

CONCLUSIONS OF LAW

14. The Division of Administrative Hearings has jurisdiction

over the subject matter of and the parties to this proceeding.

Section 120.57(1), Florida Statutes, and Section 120.569, Florida

Statutes.

15. Section 409.175(8), Florida Statutes, provides the

Department with authority to deny a license for an intentional or

negligent act that materially affects the health or safety of

children in the home. The Department may also deny re-licensure

for the violation of the requirements of Section 409.175, Florida

Statutes, or the regulations adopted thereunder.

16. The Department has adopted Chapter 65C-13, Florida

Administrative Code, in accordance with Section 409.175, to

regulate the licensure and operation of family foster homes such

as that of the Petitioners.

17. Section 65C-13.010, Florida Administrative Code, sets

out the foster parents' responsibilities as team members with the

Department, the child, and the child's family. The

responsibilities to foster children are set out in Section 65C-

13.010(1), Florida Administrative Code. In Section 65C-

13.010(1)(b)5.m., Florida Administrative Code, it is provided:

The substitute [care parent] must not threaten

a child with removal or with a report to

authorities as punishment for behavior.

Threatening the child with removal plays into

the child's convictions that they are doomed

to a series of placements and rejections. The

counselor's first task is to identify the

child's specific behaviors which are causing

the substitute parent to request removal.

Once problems are identified the counselor

along with the substitute parents and child

assess ways to correct the problem. If

problems are not corrected and the substitute

family continues to request removal, a

conference should be held by the counselor

with the substitute family and the child to

discuss the possibility of removal and

replacement. Involving the child in the

planning may help him feel he has some control

of his life.

18. Pursuant to Section 409.175(2)(f), Florida Statutes, a

foster home license is a public trust, not an entitlement. When

the Petitioners adopted D.B., the adopted created a relationship

between them and D.B. just as if he were their natural child. See

Section 63.172(1)(c), Florida Statutes. By abandoning D.B. in the

Department's offices and consigning him to long-term foster care

away from his natural siblings and adoptive family, the

Petitioners demonstrated callous disregard for the mental and

emotional health of the child. In addition, it showed disregard

for the emotional welfare of D.B.'s two siblings whom Petitioners

had also made their own through adoption. It is not significant

that only Billie Barnes took the child to the offices and

abandoned him, it was obviously the adoptive child and foster

child of both Petitioners; and the abandonment could not have

occurred without the assent and condonation of both Petitioners.

19. The Department, thus, had cause to deny re-licensure of

the Petitioners as a licensed family foster home. The sanction of

denial of re-licensure, as opposed to a suspension or lesser

sanction is justified by the serious nature of the Petitioners'

conduct and breach of their legal duty and public trust. If

Petitioners show no more regard for the welfare of foster children

than they did in this instance, the Department cannot in good

faith place vulnerable foster children in their home to run the

risk of being rejected in the same way.

20. Further, since the Petitioners failed to appear at the

hearing or offer any justification for their failure to appear,

there was no evidence produced on their behalf which shows

mitigation or explanation concerning the cause for the violation

in question or the sanctions sought to be imposed by the

Department.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of

Law set forth herein, it is

RECOMMENDED that a final order be entered by the Department

of Children and Family Services denying the re-licensure of the

Petitioners as a licensed family foster home.

DONE AND ENTERED this 6th day of December, 2000, in

Tallahassee, Leon County, Florida.

P. MICHAEL RUFF

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 6th day of December, 2000.

COPIES FURNISHED:

Billie and Willie Mae Barnes

15606 Southwest 27th Avenue Road

Ocala, Florida 34473

Ralph J. McMurphy, Esquire

Department of Children and Family Services

1601 West Gulf Atlantic Highway

Wildwood, Florida 43785

Virginia A. Daire, 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

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.