15-004169 vs. Status: Closed Recommended Order on Wednesday, February 17, 2016.

Summary: Petitioner proved that Respondent engaged in an act that materially affected the health or safety of a foster child in violation of section 409.175, but mitigating circumstances justify not revoking foster home license.

precipitated by [A.C.]'s 2 extreme, ongoing misbehavior

before he was removed from the home .

The Department contends that revocation of Respondents' foster license will not affect

D.C.'s placement in Respondent's home because the child is in the home pursuant to a

court order. The Department cites to statements made by the ALJ that the placement

of the child was pursuant to a court order and would not be affected by revocation of

Respondent's license and testimony that Respondents had declined to apply for

nonrelative caregiver funds.

In reply, Respondents do not directly address this exception but state that the

ALJ's findings, based on the evidence and testimony provided, were correct.

Respondents assert that it is not justified to conclude that the ALJ did not provide an

accurate and very beneficial recommended order for all parties involved. Respondents

argue that the Department failed to meet its burden of proof in this case, the

recommended order should stand and Respondent's foster care license should

continue. Respondents also assert that revocation of their foster license would directly

affect D.C.'s placement, as it would cause displacement of D.C. due to the continued

financial burden on Respondents. Respondents also note that they have attempted to

receive non-relative care as their only option but were denied . Finally, Respondents

inClude a quotation of section 120.57(1 )(I), Florida Statutes, but make no argument

based thereon.

Section 120.57( 1 )(I), Florida Statutes, places limitations on the Department's

ability to reject or modify findings of facts in a Recommended Order. It is the

Administrative Law Judge's function to consider all evidence, resolve conflicts, judge

2 The initials " A.C . , " are substituted in this Order for the sake of privacy .

the credibility of witnesses, draw permissible inferences from the evidence, and reach

ultimate findings of fact. 3 An agency may not reweigh the evidence. 4 Similarly, an

agency may not reject or modify Findings of Fact in a Recommended Order if they are

supported by competent substantial evidence. 5 However, it may do so if such findings

ar9 not supported by competent substantial evidence .

The ALJ ' s statements are not testimony that can be considered as evidence in

this case, although they reflect the ALJ's view of the evidence during the hearing.

Implicit in paragraph 18 is a finding that revocation of Respondents' foster license

would result in removal of D.C. from their care or some other negative impact on his

care. A review of the record reveals no competent evidence to support such a finding.

The ALJ found, in Findings of Fact paragraph 20, that D.C.'s placement in the

Respondents' home had been changed to non-relative placement in order for D.C. to

remain in the home. This finding is supported both by the testimony of Eric Sami, who

testified that the Guardian ad Litem had offered nonrelative caregiver placement as an

alternative to maintain D . C. in the home (TR177, L23- TR178, L 1; TR184, L6-10), and

the testimony of Dulce Pulpo, who testified that nomelative placement of D . C. with

3 See Belleau v . Dep't of Environmental Regulation. 695 So. 2d 1305 , 1307 (Fla. 1st DCA 1997} .

The weighing of evidence and judging of the credibility of witnesses by the Administrative Law

Judge are solely the prerogative of the Administrative Law Judge as finder of fact. See

Strickland v . Fla . A & M Univ. , 799 So.2d 276 (Fla. 1st DCA 2001 }; Dunham v. Highlands

County School Board, 652 So.2d 894 (Fla. 2d. DCA 1995).

4 When determining whether to reject or modify findings of fact in a recommended order, the

agency is not permitted to weigh the evidence, judge the credibility of the witnesses, or interpret

the evidence to fit its ultimate conclusions . See N . W. v . Dep't of Children & Family Servs., 981

So . 2d 599 (Fla. 3d DCA 2008}; Rogers v . Dep't of Health, 920 So . 2d 27, 30 (Fla . 1st DCA

2005); Aldrete v . Dep't of Health , Board of Medicine, 879 So.2d 1244, 1246, (Fla. 1st DCA

2004) . Gross v. Dep't of Health , 819 So . 2d 997, 1001 (Fla . 5th DCA 2002).

5 See Rogers v. Dep't of Health, 920 So . 2d 27, 30 (Fla. 1st DCA 2005) ; Fugate v . Fla . Elections

Ccmm'n , 924 So.2d 74, 77 (Fla . 1st DCA 2006) .

Respondents would allow him to remain in the Respondents' home (TR67, L-17-24;

TR79, L3-12). The Custody Release Order was placed in evidence (Resp. Exh. 11 ) .

Further, Marietta Enriquez testified that revocation of a foster license would not affect

placement of a child placed in non relative care. (TR 126 L20 - TR 127, L 1 ) . Sonia De

Escobar testified that nonrelative placement is not considered a foster placement for

licensing purposes (TR155 , L21-25) and that such placement is a dependency court

issue and not a licensing issue (TR153, L23- TR154, L 4). Thus, there is no evidence

that revocation would cause removal of D . C . from the home for legal or regulatory

reasons.

The only other potential factor causing D.C.'s removal would be financial, which

subsequent Findings of Fact imply would cause Respondents to seek removal of D.C.

frcm their care. As discussed below, there is no competent evidence in the record that

wculd support a finding that nonpayment or reduced payment to Respondents would

cause them to take such action. Similarly, there is no competent evidence in the record

that would support a finding that nonpayment or reduced payments would impact D.C.'s

care in Respondent's home. As discussed further, below, the record shows that

Respondents declined to apply for nonrelative caregiver funds. No competent evidence

of record would support a finding that Respondents have applied for and been denied

nonrelative caregiver funds, as asserted by Respondents i n their Reply to the

Department's Exceptions . No witness testified that revocation of Petitioners' license

would result in D.C. being removed from their home for any reason.

As to Respondents ' argument that the Department failed to meet its burden of

proof in this case, the Department proposed to revoke Respondent's foster care license

because, among other things Respondents violated rule 65C-13.029(1 )(b), Florida

Administrative Code. The ALJ found (in Finding of Fact paragraph 28) that Ms. lturr i aga

intentionally left A. C. with a complete stranger for some period of time and, in doing so, she

endangered his health and safety. The ALJ concluded (in Conclusion of Law paragraph 38)

that the Department proved, by a preponderance of the evidence, that Respondent

violated rule 65C-13.029(1 )(b). Therefore, the Department did meet its burden to prove

its case.

The ALJ concluded, however, that Respondent's license should not be revoked

or suspended. However, this latter conclusion rests in part on findings that are not

supported by competent substantial evidence and, further , is a recommended penalty

that the Department may modify under appropriate circumstances (discussed below).

Based on the forgoing, the Department's exception is granted to the extent that

paragraph 18 implies that D.C.'s care would be negatively impacted by the revocation

of Respondents' foster license.

2. Findings of Fact. Paragraph 21 .

The Department takes exception to Find i ngs of Fact, paragraph 21, w h ich (along

with endnote 6) provides:

However, this placement change is not without negative

consequences. [D.C.} remains in Respondents' home but

they do not receive any monetary allowance for his care,6/

so they are placed in the position of supporting him without

receiving any financial assistance through the foster care

system.

* * *

[endnote] 6/ See Fla. Admin . Code R. 65C-

30.001 (87).

The Department contends that, while the D.C. has been placed with Respondents

through an order of the Dependency court and therefore does not receive the foster

care board rate, the record shows that Respondents were offered an opportunity to

apply for nonrelative caregiver funding and declined to do so.

I n reply, Respondents, again, do not directly address this exception and their

response, as discussed above, is equally applicable to this exception.

The record contains no competent evidence of record to support a finding that

the placement change to nonrelative caregiver has had or will have a negative impact

on D.C.'s care . Similarly , there is no competent evidence of record that Respondents

have been placed in a position of supporting D.C . without receiving any financial

assistance. The record contains no evidence that Respondents sought and were

denied all payments for caring for D . C. Instead , the record shows that Respondents

stopped receiving the foster care board rate for D.C. (TR85, L20 - 24) but were offered

and then declined to seek nonrelative caregiver payments. (TR233-234). There is no

competent evidence of record that such payments would be insufficient for them to

provide care for D.C. or that they would pursue a court order to have D.C. moved if they

received less than the foster care room and board rate. 6 Respondents presented no

testimony regarding the cost of D . C's care or the financial impact on their home of

receiving nonrelative caregiver payments instead of foster care board rates .

6 Nonrelative caregiver payments are prescribed by Rule 65C - 28.008(3), Florida Administrative

C o de, while the foster care board rate is prescribed by sect i on 409 . 145(4)(a), Florida Statutes .

The ALJ may have been laboring under a misunderstanding of the availability of

financial assistance to Respondents as nonrelative caregivers. Rule 65C-28.008(3),

Florida Adm i nistrative Code, was amended, effective April 27, 2015, to provide for

"nonrelative caregiver financial assistance." This latter rule amendment reflects the

Department's implementation of a program of financial assistance to nonrelative

caregivers per the 2014 amendment of section 39.5085, Florida Statutes. In endnote 6,

the citation to the Florida Administrative Code is to a prior definition of " non relative

caregiver." That definition stated that a nonrelative caregiver is not being paid as a

licensed foster or shelter parent. While this definition does not preclude payment under

other provisions, it may have led the ALJ to mistakenly believe that no payments are

available to nonrelative caregivers . 7

It is readily apparent from the record that Respondents seek payment for D.C.'s

care at the board rates applicable to their foster care license and that any current lack

of any payment is the result of a disagreement by Respondents with the Department ' s

view that they should be compensated as nonrelative caregivers rather than licensed

foster parents. In their Reply to the Department's Exceptions , Respondents ask that

that the final order in this case require Citrus and the Department to pay moneys due to

Respondents under the Therapeutic foster care giver guidelines . However, this issue is

beyond the scope of this proceeding and will not be addressed in this order . This

proceeding only involves the Department's notice of intent to revoke Respondents'

foster license . it does not include any other issue .

7 Rule 65C-30.001, Florida Administrative Code . was amended, effective February 25 , 2016, to

renumber the definition of "nonrelative caregiver " to subsection (75) of the rule and no longer

mention nonpayment fo r foster or shelter parent care .

Department's exception is granted. Paragraph 21 is rejected in its entirety.

3. Findings of Fact. Paragraph 22.

The Department takes exception to Findings of Fact, paragraph 22, which

provides :

Thus, the consequence of revoking Respondents' license is

that if [D.C.] remained in the foster care system, he would

have to be moved to a licensed foster home. If he were to

stay in Respondents' home in a non-relative placement,

Respondents would not receive any monetary assistance

through the foster care system to help with his support .

The Department contends that D.C. would not have to be moved to a licensed foster

care home, because the record shows that he was placed with Respondents through a

court order.

In reply , Respondents, again, do not directly address this exception and their

response, as discussed above, is equally applicable to this exception .

The record contains no competent evidence to support a finding that D.C . would

have to be moved from Respondents' home if their foster license is revoked. As

reflected in Finding of Fact 20 and the testimony of Mr. Sami and Ms. Pulpo, the

placement of D.C. in Respondent's home was changed to a non relative caregiver

placement so that D.C. could remain in the home after revocation of their foster license

(TR177, L23- TR178 , L 1; TR184 , L6-10; TR67 , L-17-24; TR79, L3-12). There is also

nc competent evidence of record to support a finding that Respondents would be

unable to obtain payment from the Department for D.C. ' s care. Instead, the record

shows that nonrelative caregiver payments are available to Respondents, if they apply

for such. Mr. lterriaga testified that he received an application packet for such purposes

but declined to submit the application (TR232, L24- TR234 , L7). Rule 65C-28.008(3) ,

Florida Administrative Code, provides or such payments. No evidence was presented

thc;t Respondents would not qualify for payment under that rule provision .

The Department ' s exception is granted. Paragraph 22 is rejected i n its entirety .

4 . Findings of Fact, Paragraph 29.

The Department takes exception to Findings of Fact, paragraph 29, which (along

with endnote 8) provides:

However, the undersigned finds that mitigating

circumstances in this case militate against revoking

Respondents' foster home license. Specifically,

Respondents enjoyed a spotless record as foster parents

before the incident involving [A. C.] Further-and very

importantly-they have fostered a very successful, nurtur i ng,

long-term parental relationship with [D . C.] that will be

jeopardized if their foster home license is revoked. Finally, it

is undisputed that [A.C.]'s behavior was extremely

aggressive, disrespectful, and disruptive throughout the time

he was placed in Respondents' home . On September 4,

2014, his behavior finally caused Mrs . lturriaga to "snap."8/

Although her actions unquestionably were inappropriate and

affected [A.C.]'s health and safety , the evidence indisputably

shows that this was a one-time incident that occurred while

Mrs. lturriaga was under significant duress, and that, under

any circumstances, [A.C.] was not injured.

* * *

[endnote] 8/ Mrs . lturriaga's obvious frustration with

[A.C.] was not an excuse for leaving him in the

park i ng lot that day, but it does explain her actio n in

doing so.

The Department contends that r evocat i on of Respondents' foster care license will not

jeopardize the Respondents' relationship with D.C. because D.C. has been placed with

Respondents pursuant to a court order.

In reply, Respondents, again, do not directly address this exception and their

response, as discussed above, i s equally appl ica ble to this exception.

As earlier discussed, the record contains no competent evidence that D.C. would

have to be moved from Respondents' home if their foster license is revoked.

The Department's exception is granted and the final phrase in the third sentence

in the paragraph is rejected as unsupported by competent substantial evidence.

5. Findings of Fact, Paragraph 32.

The Department takes exception to Findings of Fact, paragraph 32, which

provides:

For these reasons, the undersigned finds that allowing

Respondents to keep their foster home license would enable

them to continue their close, nurturing relationship with

[D.C.), and, further, likely would not result in any danger or

other adverse effect on the health and safety of foster

children who may be placed in their home in the future.9/

* * *

[endnote] 9/ It is further noted that Mr. lturriaga

testified that Respondents' only wish is to finish their

care of [D.C.]. under the foster care system, and do

not intend to foster other children in the future.

The Department contends that a foster care license is not required to continue a close,

nurturing relationship between Respondents and D.C., because revoking the license

would have no effect on the child's placement. The Department cites the AU's

statements to this effect.

In reply, Respondents , again, do not directly address this exception and their

response as discussed above is equally applicable to this exception .

Again, the ALJ's statements on the record are not evidence, although they reflect

the AU ' s view of the evidence at the time The Department's exception is granted to

the extent that the ALJ's finding, that allowing Respondents to keep their foster home

license would enable them to continue their close, nurturing relationship with D.C. , rests

on the finding, unsupported by competent substantial evidence of record, that

revocation of Respondents' foster license would result in the removal of D . C . from

Respondents' home .

The Department's exception is granted.

Additionally , there is no competent substantial evidence to support the AU ' s

finding that continuation of Respondents ' license would likely not result in any danger or

other adverse effect on the health and safety of foster children who may be placed in

their home in the future . Instead, Sonia De Escobar, testified that the behavioral issues

of ch i ldren placed in foster care cannot be readily predicted . According to Ms. De

Escobar , children placed in foster care arrive with problems arising from within their

families and it's reasonable expect them to have behavioral problems at some points.

Ms. De Escobar remained concerned that Respondents lack the ability to deal with the

unpredictable behaviors of such children (TR138, L 13- TR139, L20; TR149, L 11 -

TR150 , L8).

6. Endnote 10

Though not the subject of a specific exception, endnote 10 relies on the

unsupported contention that Respondents must maintain their foster license in order for

D . C . to remain in their home. Endnote 10 provides :

10/ The undersigned also recommends against suspending

Respondents' license , since suspension also would requ i re

[D . C .] to be removed from Respondents' home.

As discussed above the record contains no competent substantial evidence to support

a finding that D . C. would have to be moved from Respondents ' home if their foster

license is revoked. Similarly, the record contains no competent substantial evidence to

support a finding that D.C . would have to be moved from Respondents ' home if their

foster license is suspended.

The factual predicate for Endnote 10 is not supported by competent substant i al

evidence.

7 . Exercise of discretion

The Department takes exception to Conclusions of Law, paragraphs 51 through

58, which (along with their endnotes) provide:

51. As discussed above, the undersigned finds that i n

this case, mitigating circumstances exist that justify imposing

a penalty less than revocation 12/ of Respondents' license.

* * *

[endnote] 12/ The undersigned also recommends

against suspending Respondents' license , since

suspension also would require [D.C.] to be removed

from Respondents' home.

52 . As discussed above, Respondents had an

exemplary foster care record, successfully fostering eight

chi l dren over a period of s i x years, until the extremely

unfortunate incident involving [A. C.] occurred. G i ven this

nearly uniform history of successful fostering, and

considering the extreme circumstances that fed to the

incident involving [A.C.], it is highly unlikely that allowing

Respondents to retain their license would result i n harm or

danger to foster children who may be placed in their home i n

the future-particularly i f Citrus adequately performs its

child - placing duties. 13/

* * *

[endnote] 13/ See rule 65C-15.022, describing the

placement services the child placing agency is

required by law to provide to the child and foster

home into which he or she is placed.

53 . Here, revoking Respondents' foster license would

significantly adversely affect [D.C . ] --effectively making

him a victim of [A.C.]'s behavior yet aga i n . This would be

manifestly unfair to J.O . and unnecessarily punit i ve to both

Respondents and [D.C . ].

54. There is precedent for Petitioner exercising its

discretion to consider mitigating circumstances in child care

licensure decisions, including those involving proposed

revocation or denial of renewal.

55 . Department of Children and Family Services v.

Pearl Wright, Case No. 07-0436 (Fla. DOAH May 14,

2007)(modified as to amount of monetary penalty imposed),

Case No. DCF-07-185 (Fla. DCF Aug. 10 , 2007), which

arose in the day care facility licensing context, entailed

circumstances similar to those in this proceeding. In that

case, the facility owner left five young children , i ncluding a

hearing-impaired child with substantial behavioral problems,

in the sole care of a 13-year-old child wh i l e she left the

facility to pick up her car from being repaired. Although the

children were not injured during the period of time the owner

was absent, DCF sought to revoke the day care facility

license because of the potential danger to the children while

they were left unattended. The ALJ recommended a

monetary fine, rather than revocation, based on the fact that

although the children could have been injured by being teft

unsupervised by a qualified person, none actually were

injured. Furthermore, the day care facility enjoyed an

excellent reputation and the incident was a one-time

occurrence. In its final order, DCF increased the monetary

penalty but otherwise materially agreed with the

administrative law judge's recommendation and did not

revoke the day care license . 14/

"' * ...

[endnote] 14/ See Scurry v. Dep't of Child. & Fam.

Servs . , Case No. 04-0713 (Fla. DOAH Sept. 14,

2004; Fla. DCF Jan. 12, 2005Xfinal order imposed

only fine, rather than revocation, for leav i ng young

children in the unsupervised care of an unqualified

15-year-old).

56. In L.K. v. Department of Children and Family

Services, Case No. 08-2837 (Fla. DOAH Jan. 27 , 2009; Fla.

DCF May 4, 2009), in the foster home license renewal

context, a substitute foster care provider left a two - year-old

child, A.R., overnight in the care of two persons--one of

whom had not undergone background screening-who

were not authorized to care for foster chi l dren. As a result, at

some point the following day, A.R. was left completely

unattended and wandered into a road wearing only at-shirt

and underwear. On this basis, DCF proposed to deny the

renewal of L . K.'s substitute care provider license. The ALJ

found that DCF had shown, by a preponderance of the

evidence, that L.K. had committed a negligent act that

materially affected the health and safety of A. R., i n violation

of section 409.175(9). Nonetheless, the ALJ recommended

that DCF exercise its discretion and provisionally renew

L.K .' s license, on the basis that the evidence showed that

L.K. was a caring person who generally provided a warm

and loving environment for the children in her home, despite

having made a substantial error in judgment which resulted

in A.R. being placed in circumstances that posed a serious

danger to his health and safety. In its final order, DCF

accepted the ALJ's recommendation in toto and stated that if

L.K. reapplied for her license, it would not be denied on the

basis of her action that had endangered A.R.

57. The circumstances in this case are comparable to

those in Wright and L.K. Here, the undisputed evidence

establishes that Respondents have been successful foster

parents for a period of years, and, most relevant now, have

provided a loving, nurturing, supportive home for [D.C . ], who

had serious social, psychological, and academic problems

before coming to live with them, and who has flourishe<:l>

over two and one-half years under their care . As discussed

above , revoking Respondents' foster home license would

have the primary effect of punishing [D.C.] for events in

which he had no part. Mrs. lturriaga's act i ons in leaving

[A . C.] in the parking lot constituted a very serious lapse of

judgment, but the undisputed evidence shows that it was an

isolated incident that occurred under extremely stressful

circumstances. 15/ For the reasons discussed above, it is

concluded that it is unlikely Respondents would again

engage in actions that would materially affect the health or

safety of the children in their home.

* * *

[endnote] 15/ Again, it is noted th at had Citrus timely

removed [A. C.] from Respondents' home--as the

circumstances certainly warranted--the September

4, 2014, incident would not have occurred .

58. Under the circumstances present in this case, it is

appropriate for Petitioner to take disciplinary action short of

revoking or suspending Respondents' license. To the extent

Petitioner believes that some penalty should be imposed on

Respondents, it is noted that rule 65C-13 . 035( 4 )(b) provides

for imposition of a corrective action plan to ensure that

violations are not repeated; that may be an appropriate

penalty in this case. 16/

* * *

[endnote' 16/ This rule states in pertinent part: "[i]f

licensing violations are found which do not impose an

immediate threat to the health, safety, or welfare of

the children, the agency shall prepare a corrective

action plan to correct the deficiencies. Although

leaving [A. C.] in the parking lot presented a threat to

his health and safety, [A.C.] has been removed from

Respondents' home, and [D.C.] clearly is not in any

danger. To the extent Petitioner believes it is

advisable to help ensure the safety of a foster child

who may be placed in Respondents' home in the

future, a corrective action plan containing appropriate

strategies and responses could be developed to

provide Respondents clear guidance on what actions

to take if circumstances similar to those on

September 4, 2014, were to arise again in the future.

The Department points out that revocation of Respondents' license is supported by the

ALJ's determination that the Department has established a basis for revoking their

license and that the Department did exercise its discretion when it decided to revoke

their license.

In reply, Respondents, again, do not directly address this exception and their

response as discussed above is equally applicable to this exception.

The above-quoted paragraphs are generally a discussion of the reasons to

reduce the penalty to be imposed on Respondents from revocation of the i r license to

imposition of a corrective action plan to ensure that violations are not repeated. Section

120.57(1 )(1 ), Florida Statutes, recognizes that an agency may increase a penalty from

that proposed in a recommended order, but must review of the complete record and

without state with particularity its reasons therefor in the order , by citing to the record in

justifying the action.

Also, among the above-quoted paragraphs are one endnote and two paragraphs

that rely on findings of fact that are not supported by competent substantial evidence .

Endnote 12 relies on the unsupported factual determination that suspension of

Respondents' foster license would require that D.C. be removed from their home.

Paragraph 53 and a portion of paragraph 57 rely on the unsupported factual

determination that revocation of Respondents' foster license would result in D . C . being

moved from their home. However, as discussed above, the record contains no

competent evidence to support a finding that D . C. would have to be moved from

Respondents' home if their foster license is revoked. Similarly, the record contains no

competent evidence to support a finding that D.C. would have to be moved from

Respondents' home if their foster license is suspended.

Based on a review of the entire record, it is concluded that the penalty proposed

in the Recommended Order is inappropriate and that the Respondents' foster license

should be revoked. Regardless of the triggering events, the incident with A. C. Is a

serious failure on the part of a licensed foster parent, which the ALJ found affected

[A.C.]'s health and safety. This incident also brings into question Respondents' ability

to respond appropriately when children other than D.C. are placed in their care. As

reflected in the testimony of Sonia De Escobar , the behavioral issues of children placed

in foster care cannot be readily predicted. Children placed in foster care arrive with

problems arising from within their families and it is reasonable to expect them to have

behavioral problems at some points. The Department remains concerned that

Re-spondents lack the ability to deal with the unpredictable behaviors of such children

(TR 138, L 13- TR139, L20; TR149, L 11 - TR150, L8).

It is further concluded that endnote 12 and paragraph 53 should be rejected i n

their entirety and a port i on of paragraph 57 rejected, all as relying on factual findings

that are not supported by competent substantial evidence, as discussed above.

Adoption of Findings of Fact

With the exception of paragraphs 21 and 22, which have been rejected in the i r

entirety, and paragraphs 18, 29 and 32 , which are modified as set forth below, the

Findings of Fact in the Recommended Order are approved and adopted herein:

18. Sami observed that it is fundamentally unfair for [D.C.]

to suffer the consequences of Respondents' license

revocation due to an event that was precipitated by [A.C.]'s

extreme, ongoing misbehavior before he was removed from

the home. However, there is no competent evidence of

record that revocation of Respondents ' license will change

D . C.'s placement.

* * *

29. However, the undersigned finds that mitigating

circumstances in this case militate against revoking

Respondents' foster home license . Specifically,

Respondents enjoyed a spotless record as foster parents

before the incident involving [A . C.] Further-and very

importantly - they have fostered a very successful, nurturing,

long-term parenta l relationship with [D.C.] . Finally, it is

undisputed that [A.C.]'s behavior was extremely aggressive,

disrespectful, and disrupt i ve throughout the time he was

placed in Respondents' home. On September 4, 2014 , his

behavior finally caused Mrs. lturriaga to "snap."8/ Although

her actions unquestionably were inappropriate and affected

[A.C . ]'s health and safety , the evidence indisputably shows

that this was a one-time incident that occurred while Mrs .

lturriaga was under sign i f i cant duress, and that, under any

circumstances, [A.C.] was not injured.

.. ... *

[endnote] 8/ Mrs. lturriaga's obvious frustration w i th

[A . C . ] was not an excuse for leaving him in the

parking lot that day , but it does explain her action in

doing so.

* * *

32. Mr. lturriaga testified that Respondents' only wish is t o

finish their care of [D.C.]. under the foster care system, and

do not intend to foster other children in the future. [Endnote

9 substituted for body of paragraph 32].

The foregoing modified versions of paragraphs 18, 29 and 32 are approved and

adopted herein.

Adoption of Conclusions of Law

With the exception of paragraph 53, which has been rejected in its ent i rety , a n d

paragraphs 51 through 58 and, which are modified as set forth below , the Conclusio n s

of Law in the Recommended Order are approved and adopted herein .

51. The ALJ found that mitigating circumstances exist

that justified impos i ng a penalty less than revocation of

Respondents' license . The AU's reasoning, as well as the

reasons why revocation is the appropriate in this instance,

are discussed below. [endnote 12 is deleted]

52. The ALJ noted that Respondents had an

exemplary foster care record, successfully fostering eight

children over a period of six years , until the extremely

unfortunate incident involving [A.C.] occurred . [endnote 13 is

deleted]

* * *

53 . Deleted .

54. There is some precedent for Petitioner exercising

its discretion to consider mitigating circumstances in ch il d

care licensure decisions, including those involv i ng proposed

revocation or denial of renewal.

55. The ALJ cited Department of Children and Family

Services v. Pearl Wright, Case No. 07-0436 (Fla. DOAH

May 14, 2007)(modified as to amount of monetary penalty

imposed), Case No. DCF-07-185 (Fla. DCF Aug. 10, 2007),

and Scurry v. Dep't of Child . & Fam. Servs., Case No. 04-

0713 (Fla. DOAH Sept. 14, 2004; Fla. DCF Jan. 12, 2005),

as precedent for m i tigation, but those were child care

licensing cases, not foster licensing cases. [endnote 14

deleted].

56. The ALJ cited L.K. v. Department of Children and

Family Services, Case No. 08-2837 (Fla. DOAH Jan. 27,

2009; Fla. DCF May 4, 2009). While the Department

accepted the recommendation that the renewal of the

substitute foster care provider's license would not be denied

because of committing a negligent act that materially

affected the health and safety of a child in that case , the

Department remains concerned that Respondents lack the

ability to deal with the unpredictable behaviors of children

that may be placed with Respondents in the future. .

57. The ALJ opined that the circumstances in this

case are comparable to those in Wright and L.K., referring to

the fact that Respondents have been successful foster

parents for a period of years, and, most relevant now, have

provided a loving, nurturing, supportive home for [D.C . ]. The

ALJ concluded that Mrs. lturriaga's actions in leaving [A. C . ]

in the parking lot constituted a very serious lapse of

judgment, but the evidence shows that it was an isolated

incident that occurred under extremely stressful

circumstances. However, after reviewing the entire record, 1

conclude that revocation of Respondents ' license is the

appropriate action to take i n this instance . The Department

remains concerned that Respondents lack the ability to deal

with the unpredictable behaviors of children that may be

placed with Respondents in the future. The behavioral

issues of children placed in foster care cannot be readily

predicted. Children placed in foster care arrive with

problems arising from within their families and it is

reasonable expect them to have behavioral problems at

some points. (TR138, L 13 - TR139, L20 ; TR 1 49, L 11 -

TR150, L8) [Endnote 15 is deleted].

58. I do not agree that, under the circumstances

present in this case, it is appropriate for the Department to

take d i sciplinary action short of revoking or suspending

Respondents' license . The ALJ proposed the imposition of

a corrective action plan rule 65C- 1 3.035(4)(b), to the extent

the Department believes that some penalty should be

imposed on Respondents. However, the rule provides for

corrective action plans to be imposed by supervising

agencies, such as Citrus, and not the Department, and only

when "violations are found which do not impose an

immediate threat to the health, safety, or welfare of the

ch il dren ." 16/ Even if available as an option for the

Department under the rule, a corrective action p l an is no

penalty at all.

* * *

[endnote] 16/ This rule states in pertinent part: "[i]f

licensing, the agency shall prepare a corrective action

plan to correct the deficiencies. Although leaving

[A.C.] in the parking lot presented a threat to his

health and safety , [A. C . ] has been removed from

Respondents' home, and [D . C.] clearly is not in any

danger . To the extent Petitioner believes it is

advisable to help ensure the safety of a foster child

who may be placed in Respondents' home in the

future, a corrective action plan containing appropriate

strategies and responses could be developed to

provide Respondents clear guidance on what actions

to take if circumstances similar to those on

September 4, 2014, were to arise again in the future.

The foregoing modified versions of paragraphs 51 through 58 , which I find are as or

more reasonable than those that were modified or rep l aced a r e approved and adopted

herein.

Accordingly, the Recommended Order is approved and adopted as modified and

Petitioners' foster care license is revoked.

DONE AND ORDERED at Tallahassee, Leon County, Florida, this!_ day of

__ . 2016 .

NOTICE OF RIGHT TO APPEAL

THIS ORDER CONSTITUTES FINAL AGENCY ACTION AND MAY BE APPEALED BY

A PARTY PURSUANT TO SECTION 120.68, FLORIDA STATUTES, Al\\lD RULES

9.110 AND 9.190, FLORIDA RULES OF APPELLATE PROCEDURE. SUCH APPEAL

IS INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE

AGENCY CLERK OF THE DEPARTMENT OF CHILDREN AND FAMILIES, AT 1317

WfNEWOOD BOULEVARD, BUILDING 2, ROOM 204, TALLAHASSEE, FLORIDA

32399-0700, AND A SECOND COPY ALONG WITH FILING FEE AS PRESCRIBED

BY LAW, IN THE DISTRICT COURT OF APPEAL WHERE THE PARTY RESIDES OR

IN THE FIRST DISTRICT COURT OF APPEAL. THE NOTICE OF APPEAL 8 MUST BE

FILED (RECEIVED) WITHIN 30 DAYS OF RENDITION OF THIS ORDER.

Copies furnished to the following via U.S. Mail on date of Rendition of this Order. 1

Carlos Alberto Garcia Claudia Llado, Clerk

Assistant General Counsel Division of Administrative Hearings

Department of Children and Families Thee DeSoto Building

401 Northwest 2nd Ave., Ste. N-1014 1230 Apalachee Pkwy

Miami, Florida 33128 Tallahassee, FL 32399-3060

Joseph lturriaga and

Cherie lturriaga

Acdress of Record

date of the "rendition" of this Order is the date that is stamped on its first page.