00-002961 Mary Lyles vs. Department Of Children And Family Services Status: Closed Recommended Order on Monday, January 8, 2001.

Summary: Petitioner entitled to renewal of her foster care license where Department failed to present credible evidence that she failed to meet minimum standards.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARY LYLES, )

)

Petitioner, )

)

vs. ) Case No. 00-2961

)

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Respondent. )

___________________________________)

RECOMMENDED ORDER

Pursuant to notice, this cause was heard by Linda M. Rigot,

the assigned Administrative Law Judge of the Division of

Administrative Hearings, on November 14, 2000, in Miami,

Florida.

APPEARANCES

For Petitioner: Mary Lyles, pro se

14501 Polk Street

Miami, Florida 33176

For Respondent: Rosemarie Rinaldi, Esquire

Department of Children and Family Services

401 Northwest Second Avenue, N-10-14

Miami, Florida 33128

STATEMENT OF THE ISSUE

The issue presented is whether Petitioner's foster care

license should be renewed.

PRELIMINARY STATEMENT

By correspondence dated May 5, 2000, the Department issued

its Notice of Intent to Deny Foster Home License Renewal, and

Petitioner timely requested an evidentiary hearing regarding the

Department's intended action. This cause was thereafter

transferred to the Division of Administrative Hearings to

conduct the evidentiary proceeding.

Petitioner testified on her own behalf and presented the

testimony of Daryl A. Lyles, Ann Dericho, and Barbara Brown.

The Department presented the testimony of Mavis Whitton,

Nayive Bolivar, and Sonia A. Martinez. Additionally,

Petitioner's Exhibits numbered 1-8 and the Department's Exhibits

numbered 1-3 were admitted in evidence.

Both parties submitted proposed recommended orders after

the conclusion of the final hearing. Those documents have been

considered in the entry of this Recommended Order.

FINDINGS OF FACT

1. At all times material hereto, Petitioner was licensed

by the Department to provide foster care for one child in the

age group of 6 to 10. During the months of November and

December, 1999, however, the Department had three infants and

one toddler in Petitioner's care at Petitioner's small home.

2. The youngest child placed in Petitioner's home by the

Department was Domenica. When she was placed there, the

Department did not tell Petitioner that Domenica had immune

deficiency disease.

3. On October 16, 1999, Petitioner's landlord began

renovating the house. Over time, the central air conditioning

system was replaced. When the workmen were on the roof making

repairs, one of the workers stepped through a spot where the

wood underneath was rotten, creating a hole in the kitchen

ceiling. Wood around doorjambs unexpectedly needed replacement.

4. As a tenant, Petitioner had no control over the speed

with which the renovations to the house were accomplished.

While the work was underway, the new kitchen appliances were

stored in Petitioner's living/dining area. Although the house

had three bedrooms, it was a small house. The extra appliances

made the living/dining area very cluttered.

5. The replacement bathtub and toilets were placed in the

yard until they could be installed. At some points

construction debris also lay in the yard until it could be

removed. The only other items in the yard were a barbecue made

from trashcans and several trash bags full of beer cans and soda

cans that Petitioner collected when she went walking and later

sold for extra money to spend on the children.

6. During the morning of November 7, 1999, Petitioner took

Domenica to a clinic where the doctor directed Petitioner to

take her to the hospital. The child was very sick and was

admitted to the hospital. While she was at the hospital with

the infant, Petitioner's mother passed away.

7. The following day a Department employee made an

unannounced visit to Petitioner's home. That employee noted

that the yard was cluttered and the house was cluttered and

dirty. She told Petitioner to clean her house, which Petitioner

did.

8. While attending her mother's funeral, Petitioner

learned that one of her sons had terminal cancer. That son came

to stay at Petitioner's home the Friday before Thanksgiving and

was there through the end of December, except for several

hospital admissions during that time period.

9. On December 27, 1999, three Department employees went

to Petitioner's house for an unannounced site visit. The two

who testified at the final hearing thought it noteworthy that

Petitioner made them wait while she searched for her keys before

admitting them. They also testified that a dog in the front

yard had fleas. The dog was not Petitioner's.

10. When Petitioner admitted the three employees, she had

just finished taking down the Christmas tree and was in the

process of cleaning the living/dining area. She held a large

trash bag in her hand and continued putting the wrappings and

boxes from gifts into the trash bag.

11. The Department employees looked at tar from the roof

that had been tracked onto the carpet and determined that it was

dog feces. They noted that the house was very small and

cluttered and saw the hole in the ceiling in the kitchen. They

determined that the house was not safe for children. They saw

the bathroom fixtures and the beer cans and soda cans in the

yard and determined that the yard was not safe for the children

to play outside. No consideration was given to the fact that

the house was undergoing renovations or the fact that it would

be unusual for anyone to have infants playing in a yard.

12. Although the employees concluded that Petitioner's

home constituted an "unsanitary" condition, they did note that

the bedroom and bathroom used for the children were clean, that

the sheets in the cribs were clean, and that the children's

clothes were clean and neatly folded.

13. Petitioner had placed one of the infants in a child

seat in the living area so she could watch him while she was

cleaning the house. One of the Department employees

unreasonably feared that Petitioner could not get to the child

quickly enough if there were a problem, due to the clutter.

14. The child in the dining/living area was the only one

at home when the Department's employees were there.

Petitioner's sister had taken the other children to her home so

that Petitioner could clean the house after Christmas.

15. Petitioner's sister was her Departmentally-approved

back-up, i.e. , someone approved to care for the children if

Petitioner were unable. Petitioner did not know that since her

sister had just recently closed her own foster home, which had

been licensed by the Department, her sister was no longer

permitted to have Petitioner's foster children in her home but

could only look after them in Petitioner's home.

16. The Department employees went to Petitioner's sister's

home and determined that the children were safe. They summoned

other Department employees to remove the children from the care

of both Petitioner and Petitioner's sister.

17. A Department caseworker visited Petitioner's home on

August 11, 1999; October 20, 1999; and November 17, 1999. That

employee filed with the Department reports verifying that the

condition of the home was acceptable; that the environment was

safe for the children; that the children were healthy and well

fed; that there were no signs of neglect or abuse; and that the

children were appropriately placed in Petitioner's home. The

forms completed by that caseworker contain an acknowledgement

that the forms were accurately and truthfully completed under

penalty of termination of employment.

18. Petitioner now lives in her mother's home, which is

much larger than the house she was renting.

CONCLUSIONS OF LAW

19. The Division of Administrative Hearings has

jurisdiction over the parties hereto and the subject matter

hereof. Sections 120.569 and 120.57(1), Florida Statutes.

20. Section 409.175(4)(a), Florida Statutes, authorizes

the Department to adopt licensing rules for foster homes, and

the Department has adopted Rule 65C-13.010, Florida

Administrative Code. Sections (11), (12), and (13) of that Rule

require that foster homes be free from conditions which

constitute a danger to children, have a safe outdoor play area,

have sufficient space, and be clean and free of hazards to the

health and well-being of the family.

21. There is no evidence that any condition existed in

Petitioner's home that constituted a danger to children. There

is no evidence that temporary clutter due to Christmas

decorations or renovations or repair work per se constitute a

danger to children. There is no evidence that the babies and

the toddler the Department placed in Petitioner's care were in

danger at any time. Similarly, there is no evidence that the

bathroom fixtures or bags of cans to be re-cycled which were

located in Petitioner's back yard constituted an unsafe

condition for the babies in Petitioner's care or even that the

babies and the toddler had access to the back yard.

22. To the extent that Petitioner's home was crowded or

cluttered, there is no evidence that the temporary situation

created a hazard to the health and physical well-being of the

family, including the foster children placed there by the

Department. Rather, the record in this cause reflects that the

bedroom and bathroom used for the children were clean and their

clothing and bed sheets were folded and clean.

23. It is difficult to understand how the Department could

place three babies and a toddler in Petitioner's care when she

was licensed to care for only one child aged six through ten and

then complain that the house was crowded. It is easier to

understand how the caseworker who monitored conditions at

Petitioner's home once a month would have a better understanding

of circumstances than the Department's employees who appeared at

Petitioner's home one time, resulting in the allegations that

Petitioner failed to meet minimum standards.

24. Petitioner has presented a preponderance of evidence

showing that the children were safe and well cared for, and the

Department has failed to prove its allegations that Petitioner

failed to meet or maintain minimum standards.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered granting

Petitioner's request to renew her foster home license.

DONE AND ENTERED this 8th day of January, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

LINDA M. RIGOT

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 8th day of January, 2001.

COPIES FURNISHED:

Mary Lyles

14501 Polk Street

Miami, Florida 33176

Rosemarie Rinaldi, Esquire

Department of Children and Family Services

401 Northwest Second Avenue, N-10-14

Miami, Florida 33128

Virginia A. Daire, Agency Clerk

Department of Children and Family Services

1317 Winewood Boulevard, Room 204B

Tallahassee, Florida 32399-0700

Josie Tomayo, General Counsel

Department of Children and Family Services

1317 Winewood Boulevard, Room 204

Tallahassee, Florida 32399-0700

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.