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


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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.

1precipitated by [A.C.]'s 2 extreme, ongoing misbehavior

8before he was removed from the home .

16The Department contends that revocation of Respondents' foster license will not affect

28D.C.'s placement in Respondent's home because the child is in the home pursuant to a

43court order. The Department cites to statements made by the ALJ that the placement

57of the child was pursuant to a court order and would not be affected by revocation of

74Respondent's license and testimony that Respondents had declined to apply for

85nonrelative caregiver funds.

88In reply, Respondents do not directly address this exception but state that the

101ALJ's findings, based on the evidence and testimony provided, were correct.

112Respondents assert that it is not justified to conclude that the ALJ did not provide an

128accurate and very beneficial recommended order for all parties involved. Respondents

139argue that the Department failed to meet its burden of proof in this case, the

154recommended order should stand and Respondent's foster care license should

164continue. Respondents also assert that revocation of their foster license would directly

176affect D.C.'s placement, as it would cause displacement of D.C. due to the continued

190financial burden on Respondents. Respondents also note that they have attempted to

202receive non-relative care as their only option but were denied . Finally, Respondents

215inClude a quotation of section 120.57(1 )(I), Florida Statutes, but make no argument

228based thereon.

230Section 120.57( 1 )(I), Florida Statutes, places limitations on the Department's

241ability to reject or modify findings of facts in a Recommended Order. It is the

256Administrative Law Judge's function to consider all evidence, resolve conflicts, judge

2672 The initials " A.C . , " are substituted in this Order for the sake of privacy .

283the credibility of witnesses, draw permissible inferences from the evidence, and reach

295ultimate findings of fact. 3 An agency may not reweigh the evidence. 4 Similarly, an

310agency may not reject or modify Findings of Fact in a Recommended Order if they are

326supported by competent substantial evidence. 5 However, it may do so if such findings

340ar9 not supported by competent substantial evidence .

348The ALJ ' s statements are not testimony that can be considered as evidence in

363this case, although they reflect the ALJ's view of the evidence during the hearing.

377Implicit in paragraph 18 is a finding that revocation of Respondents' foster license

390would result in removal of D.C. from their care or some other negative impact on his

406care. A review of the record reveals no competent evidence to support such a finding.

421The ALJ found, in Findings of Fact paragraph 20, that D.C.'s placement in the

435Respondents' home had been changed to non-relative placement in order for D.C. to

448remain in the home. This finding is supported both by the testimony of Eric Sami, who

464testified that the Guardian ad Litem had offered nonrelative caregiver placement as an

477alternative to maintain D . C. in the home (TR177, L23- TR178, L 1; TR184, L6-10), and

494the testimony of Dulce Pulpo, who testified that nomelative placement of D . C. with

5093 See Belleau v . Dep't of Environmental Regulation. 695 So. 2d 1305 , 1307 (Fla. 1st DCA 1997} .

528The weighing of evidence and judging of the credibility of witnesses by the Administrative Law

543Judge are solely the prerogative of the Administrative Law Judge as finder of fact. See

558Strickland v . Fla . A & M Univ. , 799 So.2d 276 (Fla. 1st DCA 2001 }; Dunham v. Highlands

578County School Board, 652 So.2d 894 (Fla. 2d. DCA 1995).

5884 When determining whether to reject or modify findings of fact in a recommended order, the

604agency is not permitted to weigh the evidence, judge the credibility of the witnesses, or interpret

620the evidence to fit its ultimate conclusions . See N . W. v . Dep't of Children & Family Servs., 981

641So . 2d 599 (Fla. 3d DCA 2008}; Rogers v . Dep't of Health, 920 So . 2d 27, 30 (Fla . 1st DCA

6652005); Aldrete v . Dep't of Health , Board of Medicine, 879 So.2d 1244, 1246, (Fla. 1st DCA

6822004) . Gross v. Dep't of Health , 819 So . 2d 997, 1001 (Fla . 5th DCA 2002).

7005 See Rogers v. Dep't of Health, 920 So . 2d 27, 30 (Fla. 1st DCA 2005) ; Fugate v . Fla . Elections

723Ccmm'n , 924 So.2d 74, 77 (Fla . 1st DCA 2006) .

734Respondents would allow him to remain in the Respondents' home (TR67, L-17-24;

746TR79, L3-12). The Custody Release Order was placed in evidence (Resp. Exh. 11 ) .

761Further, Marietta Enriquez testified that revocation of a foster license would not affect

774placement of a child placed in non relative care. (TR 126 L20 - TR 127, L 1 ) . Sonia De

795Escobar testified that nonrelative placement is not considered a foster placement for

807licensing purposes (TR155 , L21-25) and that such placement is a dependency court

819issue and not a licensing issue (TR153, L23- TR154, L 4). Thus, there is no evidence

835that revocation would cause removal of D . C . from the home for legal or regulatory

852reasons.

853The only other potential factor causing D.C.'s removal would be financial, which

865subsequent Findings of Fact imply would cause Respondents to seek removal of D.C.

878frcm their care. As discussed below, there is no competent evidence in the record that

893wculd support a finding that nonpayment or reduced payment to Respondents would

905cause them to take such action. Similarly, there is no competent evidence in the record

920that would support a finding that nonpayment or reduced payments would impact D.C.'s

933care in Respondent's home. As discussed further, below, the record shows that

945Respondents declined to apply for nonrelative caregiver funds. No competent evidence

956of record would support a finding that Respondents have applied for and been denied

970nonrelative caregiver funds, as asserted by Respondents i n their Reply to the

983Department's Exceptions . No witness testified that revocation of Petitioners' license

994would result in D.C. being removed from their home for any reason.

1006As to Respondents ' argument that the Department failed to meet its burden of

1020proof in this case, the Department proposed to revoke Respondent's foster care license

1033because, among other things Respondents violated rule 65C-13.029(1 )(b), Florida

1043Administrative Code. The ALJ found (in Finding of Fact paragraph 28) that Ms. lturr i aga

1059intentionally left A. C. with a complete stranger for some period of time and, in doing so, she

1077endangered his health and safety. The ALJ concluded (in Conclusion of Law paragraph 38)

1091that the Department proved, by a preponderance of the evidence, that Respondent

1103violated rule 65C-13.029(1 )(b). Therefore, the Department did meet its burden to prove

1116its case.

1118The ALJ concluded, however, that Respondent's license should not be revoked

1129or suspended. However, this latter conclusion rests in part on findings that are not

1143supported by competent substantial evidence and, further , is a recommended penalty

1154that the Department may modify under appropriate circumstances (discussed below).

1164Based on the forgoing, the Department's exception is granted to the extent that

1177paragraph 18 implies that D.C.'s care would be negatively impacted by the revocation

1190of Respondents' foster license.

11942. Findings of Fact. Paragraph 21 .

1201The Department takes exception to Find i ngs of Fact, paragraph 21, w h ich (along

1217with endnote 6) provides:

1221However, this placement change is not without negative

1229consequences. [D.C.} remains in Respondents' home but

1236they do not receive any monetary allowance for his care,6/

1247so they are placed in the position of supporting him without

1258receiving any financial assistance through the foster care

1266system.

1267* * *

1270[endnote] 6/ See Fla. Admin . Code R. 65C-

127930.001 (87).

1281The Department contends that, while the D.C. has been placed with Respondents

1293through an order of the Dependency court and therefore does not receive the foster

1307care board rate, the record shows that Respondents were offered an opportunity to

1320apply for nonrelative caregiver funding and declined to do so.

1330I n reply, Respondents, again, do not directly address this exception and their

1343response, as discussed above, is equally applicable to this exception.

1353The record contains no competent evidence of record to support a finding that

1366the placement change to nonrelative caregiver has had or will have a negative impact

1380on D.C.'s care . Similarly , there is no competent evidence of record that Respondents

1394have been placed in a position of supporting D.C . without receiving any financial

1408assistance. The record contains no evidence that Respondents sought and were

1419denied all payments for caring for D . C. Instead , the record shows that Respondents

1434stopped receiving the foster care board rate for D.C. (TR85, L20 - 24) but were offered

1450and then declined to seek nonrelative caregiver payments. (TR233-234). There is no

1462competent evidence of record that such payments would be insufficient for them to

1475provide care for D.C. or that they would pursue a court order to have D.C. moved if they

1493received less than the foster care room and board rate. 6 Respondents presented no

1507testimony regarding the cost of D . C's care or the financial impact on their home of

1524receiving nonrelative caregiver payments instead of foster care board rates .

15356 Nonrelative caregiver payments are prescribed by Rule 65C - 28.008(3), Florida Administrative

1548C o de, while the foster care board rate is prescribed by sect i on 409 . 145(4)(a), Florida Statutes .

1569The ALJ may have been laboring under a misunderstanding of the availability of

1582financial assistance to Respondents as nonrelative caregivers. Rule 65C-28.008(3),

1591Florida Adm i nistrative Code, was amended, effective April 27, 2015, to provide for

"1605nonrelative caregiver financial assistance." This latter rule amendment reflects the

1615Department's implementation of a program of financial assistance to nonrelative

1625caregivers per the 2014 amendment of section 39.5085, Florida Statutes. In endnote 6,

1638the citation to the Florida Administrative Code is to a prior definition of " non relative

1653caregiver." That definition stated that a nonrelative caregiver is not being paid as a

1667licensed foster or shelter parent. While this definition does not preclude payment under

1680other provisions, it may have led the ALJ to mistakenly believe that no payments are

1695available to nonrelative caregivers . 7

1701It is readily apparent from the record that Respondents seek payment for D.C.'s

1714care at the board rates applicable to their foster care license and that any current lack

1730of any payment is the result of a disagreement by Respondents with the Department ' s

1746view that they should be compensated as nonrelative caregivers rather than licensed

1758foster parents. In their Reply to the Department's Exceptions , Respondents ask that

1770that the final order in this case require Citrus and the Department to pay moneys due to

1787Respondents under the Therapeutic foster care giver guidelines . However, this issue is

1800beyond the scope of this proceeding and will not be addressed in this order . This

1816proceeding only involves the Department's notice of intent to revoke Respondents'

1827foster license . it does not include any other issue .

18387 Rule 65C-30.001, Florida Administrative Code . was amended, effective February 25 , 2016, to

1852renumber the definition of "nonrelative caregiver " to subsection (75) of the rule and no longer

1867mention nonpayment fo r foster or shelter parent care .

1877Department's exception is granted. Paragraph 21 is rejected in its entirety.

18883. Findings of Fact. Paragraph 22.

1894The Department takes exception to Findings of Fact, paragraph 22, which

1905provides :

1907Thus, the consequence of revoking Respondents' license is

1915that if [D.C.] remained in the foster care system, he would

1926have to be moved to a licensed foster home. If he were to

1939stay in Respondents' home in a non-relative placement,

1947Respondents would not receive any monetary assistance

1954through the foster care system to help with his support .

1965The Department contends that D.C. would not have to be moved to a licensed foster

1980care home, because the record shows that he was placed with Respondents through a

1994court order.

1996In reply , Respondents, again, do not directly address this exception and their

2008response, as discussed above, is equally applicable to this exception .

2019The record contains no competent evidence to support a finding that D.C . would

2033have to be moved from Respondents' home if their foster license is revoked. As

2047reflected in Finding of Fact 20 and the testimony of Mr. Sami and Ms. Pulpo, the

2063placement of D.C. in Respondent's home was changed to a non relative caregiver

2076placement so that D.C. could remain in the home after revocation of their foster license

2091(TR177, L23- TR178 , L 1; TR184 , L6-10; TR67 , L-17-24; TR79, L3-12). There is also

2105nc competent evidence of record to support a finding that Respondents would be

2118unable to obtain payment from the Department for D.C. ' s care. Instead, the record

2133shows that nonrelative caregiver payments are available to Respondents, if they apply

2145for such. Mr. lterriaga testified that he received an application packet for such purposes

2159but declined to submit the application (TR232, L24- TR234 , L7). Rule 65C-28.008(3) ,

2171Florida Administrative Code, provides or such payments. No evidence was presented

2182thc;t Respondents would not qualify for payment under that rule provision .

2195The Department ' s exception is granted. Paragraph 22 is rejected i n its entirety .

22114 . Findings of Fact, Paragraph 29.

2218The Department takes exception to Findings of Fact, paragraph 29, which (along

2230with endnote 8) provides:

2234However, the undersigned finds that mitigating

2240circumstances in this case militate against revoking

2247Respondents' foster home license. Specifically,

2252Respondents enjoyed a spotless record as foster parents

2260before the incident involving [A. C.] Further-and very

2268importantly-they have fostered a very successful, nurtur i ng,

2277long-term parental relationship with [D . C.] that will be

2287jeopardized if their foster home license is revoked. Finally, it

2297is undisputed that [A.C.]'s behavior was extremely

2304aggressive, disrespectful, and disruptive throughout the time

2311he was placed in Respondents' home . On September 4,

23212014, his behavior finally caused Mrs . lturriaga to "snap."8/

2332Although her actions unquestionably were inappropriate and

2339affected [A.C.]'s health and safety , the evidence indisputably

2347shows that this was a one-time incident that occurred while

2357Mrs. lturriaga was under significant duress, and that, under

2366any circumstances, [A.C.] was not injured.

2372* * *

2375[endnote] 8/ Mrs . lturriaga's obvious frustration with

2383[A.C.] was not an excuse for leaving him in the

2393park i ng lot that day, but it does explain her actio n in

2407doing so.

2409The Department contends that r evocat i on of Respondents' foster care license will not

2424jeopardize the Respondents' relationship with D.C. because D.C. has been placed with

2436Respondents pursuant to a court order.

2442In reply, Respondents, again, do not directly address this exception and their

2454response, as discussed above, i s equally appl ica ble to this exception.

2467As earlier discussed, the record contains no competent evidence that D.C. would

2479have to be moved from Respondents' home if their foster license is revoked.

2492The Department's exception is granted and the final phrase in the third sentence

2505in the paragraph is rejected as unsupported by competent substantial evidence.

25165. Findings of Fact, Paragraph 32.

2522The Department takes exception to Findings of Fact, paragraph 32, which

2533provides:

2534For these reasons, the undersigned finds that allowing

2542Respondents to keep their foster home license would enable

2551them to continue their close, nurturing relationship with

2559[D.C.), and, further, likely would not result in any danger or

2570other adverse effect on the health and safety of foster

2580children who may be placed in their home in the future.9/

2591* * *

2594[endnote] 9/ It is further noted that Mr. lturriaga

2603testified that Respondents' only wish is to finish their

2612care of [D.C.]. under the foster care system, and do

2622not intend to foster other children in the future.

2631The Department contends that a foster care license is not required to continue a close,

2646nurturing relationship between Respondents and D.C., because revoking the license

2656would have no effect on the child's placement. The Department cites the AU's

2669statements to this effect.

2673In reply, Respondents , again, do not directly address this exception and their

2685response as discussed above is equally applicable to this exception .

2696Again, the ALJ's statements on the record are not evidence, although they reflect

2709the AU ' s view of the evidence at the time The Department's exception is granted to

2726the extent that the ALJ's finding, that allowing Respondents to keep their foster home

2740license would enable them to continue their close, nurturing relationship with D.C. , rests

2753on the finding, unsupported by competent substantial evidence of record, that

2764revocation of Respondents' foster license would result in the removal of D . C . from

2780Respondents' home .

2783The Department's exception is granted.

2788Additionally , there is no competent substantial evidence to support the AU ' s

2801finding that continuation of Respondents ' license would likely not result in any danger or

2816other adverse effect on the health and safety of foster children who may be placed in

2832their home in the future . Instead, Sonia De Escobar, testified that the behavioral issues

2847of ch i ldren placed in foster care cannot be readily predicted . According to Ms. De

2864Escobar , children placed in foster care arrive with problems arising from within their

2877families and it's reasonable expect them to have behavioral problems at some points.

2890Ms. De Escobar remained concerned that Respondents lack the ability to deal with the

2904unpredictable behaviors of such children (TR138, L 13- TR139, L20; TR149, L 11 -

2918TR150 , L8).

29206. Endnote 10

2923Though not the subject of a specific exception, endnote 10 relies on the

2936unsupported contention that Respondents must maintain their foster license in order for

2948D . C . to remain in their home. Endnote 10 provides :

296110/ The undersigned also recommends against suspending

2968Respondents' license , since suspension also would requ i re

2977[D . C .] to be removed from Respondents' home.

2987As discussed above the record contains no competent substantial evidence to support

2999a finding that D . C. would have to be moved from Respondents ' home if their foster

3017license is revoked. Similarly, the record contains no competent substantial evidence to

3029support a finding that D.C . would have to be moved from Respondents ' home if their

3046foster license is suspended.

3050The factual predicate for Endnote 10 is not supported by competent substant i al

3064evidence.

30657 . Exercise of discretion

3070The Department takes exception to Conclusions of Law, paragraphs 51 through

308158, which (along with their endnotes) provide:

308851. As discussed above, the undersigned finds that i n

3098this case, mitigating circumstances exist that justify imposing

3106a penalty less than revocation 12/ of Respondents' license.

3115* * *

3118[endnote] 12/ The undersigned also recommends

3124against suspending Respondents' license , since

3129suspension also would require [D.C.] to be removed

3137from Respondents' home.

314052 . As discussed above, Respondents had an

3148exemplary foster care record, successfully fostering eight

3155chi l dren over a period of s i x years, until the extremely

3169unfortunate incident involving [A. C.] occurred. G i ven this

3179nearly uniform history of successful fostering, and

3186considering the extreme circumstances that fed to the

3194incident involving [A.C.], it is highly unlikely that allowing

3203Respondents to retain their license would result i n harm or

3214danger to foster children who may be placed in their home i n

3227the future-particularly i f Citrus adequately performs its

3235child - placing duties. 13/

3240* * *

3243[endnote] 13/ See rule 65C-15.022, describing the

3250placement services the child placing agency is

3257required by law to provide to the child and foster

3267home into which he or she is placed.

327553 . Here, revoking Respondents' foster license would

3283significantly adversely affect [D.C . ] --effectively making

3291him a victim of [A.C.]'s behavior yet aga i n . This would be

3305manifestly unfair to J.O . and unnecessarily punit i ve to both

3317Respondents and [D.C . ].

332254. There is precedent for Petitioner exercising its

3330discretion to consider mitigating circumstances in child care

3338licensure decisions, including those involving proposed

3344revocation or denial of renewal.

334955 . Department of Children and Family Services v.

3358Pearl Wright, Case No. 07-0436 (Fla. DOAH May 14,

33672007)(modified as to amount of monetary penalty imposed),

3375Case No. DCF-07-185 (Fla. DCF Aug. 10 , 2007), which

3384arose in the day care facility licensing context, entailed

3393circumstances similar to those in this proceeding. In that

3402case, the facility owner left five young children , i ncluding a

3413hearing-impaired child with substantial behavioral problems,

3419in the sole care of a 13-year-old child wh i l e she left the

3434facility to pick up her car from being repaired. Although the

3445children were not injured during the period of time the owner

3456was absent, DCF sought to revoke the day care facility

3466license because of the potential danger to the children while

3476they were left unattended. The ALJ recommended a

3484monetary fine, rather than revocation, based on the fact that

3494although the children could have been injured by being teft

3504unsupervised by a qualified person, none actually were

3512injured. Furthermore, the day care facility enjoyed an

3520excellent reputation and the incident was a one-time

3528occurrence. In its final order, DCF increased the monetary

3537penalty but otherwise materially agreed with the

3544administrative law judge's recommendation and did not

3551revoke the day care license . 14/

"3558' * ...

3561[endnote] 14/ See Scurry v. Dep't of Child. & Fam.

3571Servs . , Case No. 04-0713 (Fla. DOAH Sept. 14,

35802004; Fla. DCF Jan. 12, 2005Xfinal order imposed

3588only fine, rather than revocation, for leav i ng young

3598children in the unsupervised care of an unqualified

360615-year-old).

360756. In L.K. v. Department of Children and Family

3616Services, Case No. 08-2837 (Fla. DOAH Jan. 27 , 2009; Fla.

3626DCF May 4, 2009), in the foster home license renewal

3636context, a substitute foster care provider left a two - year-old

3647child, A.R., overnight in the care of two persons--one of

3657whom had not undergone background screening-who

3663were not authorized to care for foster chi l dren. As a result, at

3677some point the following day, A.R. was left completely

3686unattended and wandered into a road wearing only at-shirt

3695and underwear. On this basis, DCF proposed to deny the

3705renewal of L . K.'s substitute care provider license. The ALJ

3716found that DCF had shown, by a preponderance of the

3726evidence, that L.K. had committed a negligent act that

3735materially affected the health and safety of A. R., i n violation

3747of section 409.175(9). Nonetheless, the ALJ recommended

3754that DCF exercise its discretion and provisionally renew

3762L.K .' s license, on the basis that the evidence showed that

3774L.K. was a caring person who generally provided a warm

3784and loving environment for the children in her home, despite

3794having made a substantial error in judgment which resulted

3803in A.R. being placed in circumstances that posed a serious

3813danger to his health and safety. In its final order, DCF

3824accepted the ALJ's recommendation in toto and stated that if

3834L.K. reapplied for her license, it would not be denied on the

3846basis of her action that had endangered A.R.

385457. The circumstances in this case are comparable to

3863those in Wright and L.K. Here, the undisputed evidence

3872establishes that Respondents have been successful foster

3879parents for a period of years, and, most relevant now, have

3890provided a loving, nurturing, supportive home for [D.C . ], who

3901had serious social, psychological, and academic problems

3908before coming to live with them, and who has flourishe<:l>

3918over two and one-half years under their care . As discussed

3929above , revoking Respondents' foster home license would

3936have the primary effect of punishing [D.C.] for events in

3946which he had no part. Mrs. lturriaga's act i ons in leaving

3958[A . C.] in the parking lot constituted a very serious lapse of

3971judgment, but the undisputed evidence shows that it was an

3981isolated incident that occurred under extremely stressful

3988circumstances. 15/ For the reasons discussed above, it is

3997concluded that it is unlikely Respondents would again

4005engage in actions that would materially affect the health or

4015safety of the children in their home.

4022* * *

4025[endnote] 15/ Again, it is noted th at had Citrus timely

4036removed [A. C.] from Respondents' home--as the

4043circumstances certainly warranted--the September

40474, 2014, incident would not have occurred .

405558. Under the circumstances present in this case, it is

4065appropriate for Petitioner to take disciplinary action short of

4074revoking or suspending Respondents' license. To the extent

4082Petitioner believes that some penalty should be imposed on

4091Respondents, it is noted that rule 65C-13 . 035( 4 )(b) provides

4103for imposition of a corrective action plan to ensure that

4113violations are not repeated; that may be an appropriate

4122penalty in this case. 16/

4127* * *

4130[endnote' 16/ This rule states in pertinent part: "[i]f

4139licensing violations are found which do not impose an

4148immediate threat to the health, safety, or welfare of

4157the children, the agency shall prepare a corrective

4165action plan to correct the deficiencies. Although

4172leaving [A. C.] in the parking lot presented a threat to

4183his health and safety, [A.C.] has been removed from

4192Respondents' home, and [D.C.] clearly is not in any

4201danger. To the extent Petitioner believes it is

4209advisable to help ensure the safety of a foster child

4219who may be placed in Respondents' home in the

4228future, a corrective action plan containing appropriate

4235strategies and responses could be developed to

4242provide Respondents clear guidance on what actions

4249to take if circumstances similar to those on

4257September 4, 2014, were to arise again in the future.

4267The Department points out that revocation of Respondents' license is supported by the

4280ALJ's determination that the Department has established a basis for revoking their

4292license and that the Department did exercise its discretion when it decided to revoke

4306their license.

4308In reply, Respondents, again, do not directly address this exception and their

4320response as discussed above is equally applicable to this exception.

4330The above-quoted paragraphs are generally a discussion of the reasons to

4341reduce the penalty to be imposed on Respondents from revocation of the i r license to

4357imposition of a corrective action plan to ensure that violations are not repeated. Section

4371120.57(1 )(1 ), Florida Statutes, recognizes that an agency may increase a penalty from

4385that proposed in a recommended order, but must review of the complete record and

4399without state with particularity its reasons therefor in the order , by citing to the record in

4415justifying the action.

4418Also, among the above-quoted paragraphs are one endnote and two paragraphs

4429that rely on findings of fact that are not supported by competent substantial evidence .

4444Endnote 12 relies on the unsupported factual determination that suspension of

4455Respondents' foster license would require that D.C. be removed from their home.

4467Paragraph 53 and a portion of paragraph 57 rely on the unsupported factual

4480determination that revocation of Respondents' foster license would result in D . C . being

4495moved from their home. However, as discussed above, the record contains no

4507competent evidence to support a finding that D . C. would have to be moved from

4523Respondents' home if their foster license is revoked. Similarly, the record contains no

4536competent evidence to support a finding that D.C. would have to be moved from

4550Respondents' home if their foster license is suspended.

4558Based on a review of the entire record, it is concluded that the penalty proposed

4573in the Recommended Order is inappropriate and that the Respondents' foster license

4585should be revoked. Regardless of the triggering events, the incident with A. C. Is a

4600serious failure on the part of a licensed foster parent, which the ALJ found affected

4615[A.C.]'s health and safety. This incident also brings into question Respondents' ability

4627to respond appropriately when children other than D.C. are placed in their care. As

4641reflected in the testimony of Sonia De Escobar , the behavioral issues of children placed

4655in foster care cannot be readily predicted. Children placed in foster care arrive with

4669problems arising from within their families and it is reasonable to expect them to have

4684behavioral problems at some points. The Department remains concerned that

4694Re-spondents lack the ability to deal with the unpredictable behaviors of such children

4707(TR 138, L 13- TR139, L20; TR149, L 11 - TR150, L8).

4719It is further concluded that endnote 12 and paragraph 53 should be rejected i n

4734their entirety and a port i on of paragraph 57 rejected, all as relying on factual findings

4751that are not supported by competent substantial evidence, as discussed above.

4762Adoption of Findings of Fact

4767With the exception of paragraphs 21 and 22, which have been rejected in the i r

4783entirety, and paragraphs 18, 29 and 32 , which are modified as set forth below, the

4798Findings of Fact in the Recommended Order are approved and adopted herein:

481018. Sami observed that it is fundamentally unfair for [D.C.]

4820to suffer the consequences of Respondents' license

4827revocation due to an event that was precipitated by [A.C.]'s

4837extreme, ongoing misbehavior before he was removed from

4845the home. However, there is no competent evidence of

4854record that revocation of Respondents ' license will change

4863D . C.'s placement.

4867* * *

487029. However, the undersigned finds that mitigating

4877circumstances in this case militate against revoking

4884Respondents' foster home license . Specifically,

4890Respondents enjoyed a spotless record as foster parents

4898before the incident involving [A . C.] Further-and very

4907importantly - they have fostered a very successful, nurturing,

4916long-term parenta l relationship with [D.C.] . Finally, it is

4926undisputed that [A.C.]'s behavior was extremely aggressive,

4933disrespectful, and disrupt i ve throughout the time he was

4943placed in Respondents' home. On September 4, 2014 , his

4952behavior finally caused Mrs. lturriaga to "snap."8/ Although

4961her actions unquestionably were inappropriate and affected

4968[A.C . ]'s health and safety , the evidence indisputably shows

4978that this was a one-time incident that occurred while Mrs .

4989lturriaga was under sign i f i cant duress, and that, under any

5002circumstances, [A.C.] was not injured.

5007.. ... *

5010[endnote] 8/ Mrs. lturriaga's obvious frustration w i th

5019[A . C . ] was not an excuse for leaving him in the

5033parking lot that day , but it does explain her action in

5044doing so.

5046* * *

504932. Mr. lturriaga testified that Respondents' only wish is t o

5060finish their care of [D.C.]. under the foster care system, and

5071do not intend to foster other children in the future. [Endnote

50829 substituted for body of paragraph 32].

5089The foregoing modified versions of paragraphs 18, 29 and 32 are approved and

5102adopted herein.

5104Adoption of Conclusions of Law

5109With the exception of paragraph 53, which has been rejected in its ent i rety , a n d

5127paragraphs 51 through 58 and, which are modified as set forth below , the Conclusio n s

5143of Law in the Recommended Order are approved and adopted herein .

515551. The ALJ found that mitigating circumstances exist

5163that justified impos i ng a penalty less than revocation of

5174Respondents' license . The AU's reasoning, as well as the

5184reasons why revocation is the appropriate in this instance,

5193are discussed below. [endnote 12 is deleted]

520052. The ALJ noted that Respondents had an

5208exemplary foster care record, successfully fostering eight

5215children over a period of six years , until the extremely

5225unfortunate incident involving [A.C.] occurred . [endnote 13 is

5234deleted]

5235* * *

523853 . Deleted .

524254. There is some precedent for Petitioner exercising

5250its discretion to consider mitigating circumstances in ch il d

5260care licensure decisions, including those involv i ng proposed

5269revocation or denial of renewal.

527455. The ALJ cited Department of Children and Family

5283Services v. Pearl Wright, Case No. 07-0436 (Fla. DOAH

5292May 14, 2007)(modified as to amount of monetary penalty

5301imposed), Case No. DCF-07-185 (Fla. DCF Aug. 10, 2007),

5310and Scurry v. Dep't of Child . & Fam. Servs., Case No. 04-

53230713 (Fla. DOAH Sept. 14, 2004; Fla. DCF Jan. 12, 2005),

5334as precedent for m i tigation, but those were child care

5345licensing cases, not foster licensing cases. [endnote 14

5353deleted].

535456. The ALJ cited L.K. v. Department of Children and

5364Family Services, Case No. 08-2837 (Fla. DOAH Jan. 27,

53732009; Fla. DCF May 4, 2009). While the Department

5382accepted the recommendation that the renewal of the

5390substitute foster care provider's license would not be denied

5399because of committing a negligent act that materially

5407affected the health and safety of a child in that case , the

5419Department remains concerned that Respondents lack the

5426ability to deal with the unpredictable behaviors of children

5435that may be placed with Respondents in the future. .

544557. The ALJ opined that the circumstances in this

5454case are comparable to those in Wright and L.K., referring to

5465the fact that Respondents have been successful foster

5473parents for a period of years, and, most relevant now, have

5484provided a loving, nurturing, supportive home for [D.C . ]. The

5495ALJ concluded that Mrs. lturriaga's actions in leaving [A. C . ]

5507in the parking lot constituted a very serious lapse of

5517judgment, but the evidence shows that it was an isolated

5527incident that occurred under extremely stressful

5533circumstances. However, after reviewing the entire record, 1

5541conclude that revocation of Respondents ' license is the

5550appropriate action to take i n this instance . The Department

5561remains concerned that Respondents lack the ability to deal

5570with the unpredictable behaviors of children that may be

5579placed with Respondents in the future. The behavioral

5587issues of children placed in foster care cannot be readily

5597predicted. Children placed in foster care arrive with

5605problems arising from within their families and it is

5614reasonable expect them to have behavioral problems at

5622some points. (TR138, L 13 - TR139, L20 ; TR 1 49, L 11 -

5636TR150, L8) [Endnote 15 is deleted].

564258. I do not agree that, under the circumstances

5651present in this case, it is appropriate for the Department to

5662take d i sciplinary action short of revoking or suspending

5672Respondents' license . The ALJ proposed the imposition of

5681a corrective action plan rule 65C- 1 3.035(4)(b), to the extent

5692the Department believes that some penalty should be

5700imposed on Respondents. However, the rule provides for

5708corrective action plans to be imposed by supervising

5716agencies, such as Citrus, and not the Department, and only

5726when "violations are found which do not impose an

5735immediate threat to the health, safety, or welfare of the

5745ch il dren ." 16/ Even if available as an option for the

5758Department under the rule, a corrective action p l an is no

5770penalty at all.

5773* * *

5776[endnote] 16/ This rule states in pertinent part: "[i]f

5785licensing, the agency shall prepare a corrective action

5793plan to correct the deficiencies. Although leaving

5800[A.C.] in the parking lot presented a threat to his

5810health and safety , [A. C . ] has been removed from

5821Respondents' home, and [D . C.] clearly is not in any

5832danger . To the extent Petitioner believes it is

5841advisable to help ensure the safety of a foster child

5851who may be placed in Respondents' home in the

5860future, a corrective action plan containing appropriate

5867strategies and responses could be developed to

5874provide Respondents clear guidance on what actions

5881to take if circumstances similar to those on

5889September 4, 2014, were to arise again in the future.

5899The foregoing modified versions of paragraphs 51 through 58 , which I find are as or

5914more reasonable than those that were modified or rep l aced a r e approved and adopted

5931herein.

5932Accordingly, the Recommended Order is approved and adopted as modified and

5943Petitioners' foster care license is revoked.

5949DONE AND ORDERED at Tallahassee, Leon County, Florida, this!_ day of

5960__ . 2016 .

5964NOTICE OF RIGHT TO APPEAL

5969THIS ORDER CONSTITUTES FINAL AGENCY ACTION AND MAY BE APPEALED BY

5980A PARTY PURSUANT TO SECTION 120.68, FLORIDA STATUTES, Al\\lD RULES

59909.110 AND 9.190, FLORIDA RULES OF APPELLATE PROCEDURE. SUCH APPEAL

6000IS INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE

6013AGENCY CLERK OF THE DEPARTMENT OF CHILDREN AND FAMILIES, AT 1317

6024WfNEWOOD BOULEVARD, BUILDING 2, ROOM 204, TALLAHASSEE, FLORIDA

603232399-0700, AND A SECOND COPY ALONG WITH FILING FEE AS PRESCRIBED

6043BY LAW, IN THE DISTRICT COURT OF APPEAL WHERE THE PARTY RESIDES OR

6056IN THE FIRST DISTRICT COURT OF APPEAL. THE NOTICE OF APPEAL 8 MUST BE

6070FILED (RECEIVED) WITHIN 30 DAYS OF RENDITION OF THIS ORDER.

6080Copies furnished to the following via U.S. Mail on date of Rendition of this Order. 1

6096Carlos Alberto Garcia Claudia Llado, Clerk

6102Assistant General Counsel Division of Administrative Hearings

6109Department of Children and Families Thee DeSoto Building

6117401 Northwest 2nd Ave., Ste. N-1014 1230 Apalachee Pkwy

6126Miami, Florida 33128 Tallahassee, FL 32399-3060

6132Joseph lturriaga and

6135Cherie lturriaga

6137Acdress of Record

6140date of the "rendition" of this Order is the date that is stamped on its first page.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 06/13/2016
Proceedings: Third DCA Order notifying appellant $300.00 filing fee is required filed.
PDF:
Date: 06/13/2016
Proceedings: Acknowledgment of New Case, Third DCA Case No. 3D16-1342 filed.
PDF:
Date: 06/08/2016
Proceedings: Notice of Appeal filed.
PDF:
Date: 05/11/2016
Proceedings: Agency Final Order filed.
PDF:
Date: 05/08/2016
Proceedings: Agency Final Order
PDF:
Date: 04/08/2016
Proceedings: Objections to the Exceptions of Attorney Carlos A. Garcia filed.
PDF:
Date: 04/04/2016
Proceedings: Order Extending Time for Response to Department Exceptions (issued by the Department of Children and Families) filed.
PDF:
Date: 04/04/2016
Proceedings: Exceptions to the Recommended Order filed.
PDF:
Date: 02/17/2016
Proceedings: Recommended Order
PDF:
Date: 02/17/2016
Proceedings: Recommended Order (hearing held November 10, 2015). CASE CLOSED.
PDF:
Date: 02/17/2016
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 12/03/2015
Proceedings: Notice of Filing Transcript.
Date: 12/02/2015
Proceedings: Transcript of Proceedings (not available for viewing) filed.
PDF:
Date: 11/23/2015
Proceedings: Respondent's Proposed Recommended Order filed.
Date: 11/19/2015
Proceedings: Respondent's Proposed Exhibits filed (exhibits and cd not available for viewing).
Date: 11/10/2015
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 11/10/2015
Proceedings: Notice of Filing (Proposed) Exhibits and Witness List for Hearing on September 28, 2015 filed (exhibits not available for viewing).
Date: 11/06/2015
Proceedings: CASE STATUS: Status Conference Held.
PDF:
Date: 11/05/2015
Proceedings: Amended Notice of Hearing by Video Teleconference (hearing set for November 10, 2015; 10:30 a.m.; Miami and Tallahassee, FL; amended as to hearing time, hearing locations, and video teleconference).
PDF:
Date: 11/04/2015
Proceedings: Amended Order Allowing Testimony by Telephone.
PDF:
Date: 11/02/2015
Proceedings: Order Allowing Testimony by Telephone.
Date: 11/02/2015
Proceedings: CASE STATUS: Status Conference Held.
PDF:
Date: 10/30/2015
Proceedings: Notice of Ex-parte Communication.
PDF:
Date: 10/29/2015
Proceedings: Letter to Judge Sellers from Joseph Iturriaga requesting that wife be able to appear telephonically filed.
PDF:
Date: 10/20/2015
Proceedings: Order Re-scheduling Hearing (hearing set for November 10, 2015; 12:30 p.m.; Miami, FL).
PDF:
Date: 10/09/2015
Proceedings: Notice of Dates of Availability filed.
PDF:
Date: 10/05/2015
Proceedings: Notice of Ex-parte Communication.
PDF:
Date: 10/05/2015
Proceedings: Letter to Judge Cathy Sellers filed.
PDF:
Date: 10/05/2015
Proceedings: Complaints for resolving child placement and license revocation hearing filed.
PDF:
Date: 09/25/2015
Proceedings: Order Granting Continuance (parties to advise status by October 9, 2015).
PDF:
Date: 09/24/2015
Proceedings: Emergency Motion for Continuance filed.
PDF:
Date: 09/24/2015
Proceedings: Emergency Motion for Continuance filed.
PDF:
Date: 09/22/2015
Proceedings: Respondents' Witness list filed.
PDF:
Date: 09/21/2015
Proceedings: Notice of Filing Exhibits and Witness List for Hearing on September 28, 2015, filed.
PDF:
Date: 09/18/2015
Proceedings: Letter and License filed.
PDF:
Date: 09/17/2015
Proceedings: E-mail Correspondence filed.
PDF:
Date: 09/17/2015
Proceedings: Screen Shots filed.
PDF:
Date: 09/17/2015
Proceedings: Call Log filed.
PDF:
Date: 09/17/2015
Proceedings: Screen Shots filed.
PDF:
Date: 09/17/2015
Proceedings: E-mail Correspondences from Carlos Garcia to Agency Clerk Enclosing Copy of Request for Hearing filed.
PDF:
Date: 09/16/2015
Proceedings: E-mail Correspondence Between Amelia Sampat and Lourdes Pons filed.
PDF:
Date: 07/31/2015
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 07/31/2015
Proceedings: Notice of Hearing by Video Teleconference (hearing set for September 28, 2015; 9:00 a.m.; Miami and Tallahassee, FL).
PDF:
Date: 07/23/2015
Proceedings: Initial Order.
PDF:
Date: 07/22/2015
Proceedings: Notice of Intent to Revoke Foster Home License filed.
PDF:
Date: 07/22/2015
Proceedings: Request for Administrative Hearing filed.
PDF:
Date: 07/22/2015
Proceedings: Notice (of Agency referral) filed.

Case Information

Date Filed:
07/22/2015
Date Assignment:
07/23/2015
Last Docket Entry:
06/13/2016
Location:
Micanopy, Florida
District:
Northern
Agency:
DOAH Order Rejected
 

Counsels

Related DOAH Cases(s) (3):

Related Florida Statute(s) (5):

Related Florida Rule(s) (3):