19-002954 Department Of Children And Families vs. Kapil And Katrina Puri Status: Closed Recommended Order on Thursday, February 20, 2020.

Summary: Petitioner did not establish that Respondents' foster home license should not be renewed.

P RELIMINARY S TATEMENT

By letter da ted April 17, 2019 ( “ N otice Letter ” ), the Depa rtment of

Children and Families (“Petitioner” or “DCF”) notified Respondents of DCF’s

intent to revoke or deny renewal of their foster home license.

The Notice L etter states, in part, the following reason s for revocation of

Respondents’ foster home lice nse:

In September of 2018 it was reported to the

Department that you were restraining a child in

your care using a "full nelson" restraint because of

the child’s actions. You were told that you could not restrain "the foster child and the extreme dange rs

involved in doing so. After being advised not to

restrain the child by a child protective investigator

and the FFN unit manager, you continued to say that you were going to use the restraint and restrained the child again. You failed to seek the assista nce of the child's case manager or therapist

to appropriately handle behavior issues and failed to follow instructions given to you by the FFN unit manager as required .

You instructed a caregiver to withhold food as

discipline, if a child misbehaved. Ther e was also an

incident in which the child in your care refused to

get in the bathtub and you were heard cursing and threatening the child to get into the bathtub.

When a child transitioned from your home to another caregiver's home, you left the child's c onfidential records in a public location, instead of

making certain the new caregiver directly took

possession of them. You also provided a bag of dirty

clothes, and clothing too small for the child to the new caregiver by showing up at the child's doctor' s

appointment.

You gave Benadryl, and its generic equivalent, to a child under the age of six to calm the child. The medication given was not to be given to a child under the age of six without a doctor's guidance

and is not a medication that should be us ed for the

purpose of calming a child. You also failed to

document the medication and the dosage in the

medication log as required.

On May 8, 2019, Respondents timely requested a formal hearing to

dispute the facts underlying the Department’s intended dec ision. DCF referred this ma tter to the Division for assignment of an administrative law

judge. This case was initially assigned to Administrative Law Judge (“ALJ”)

Lisa Shearer Nelson.

ALJ Nelson scheduled this matter for August 27 and 28, 2019. On

Augu st 7, 2019, the parties filed a Joint Motion to Continue Trial, which was

granted. The hearing was then rescheduled for October 2 and 3, 2019. The

parties sou ght a second continuance and this matter was reschedul ed for

December 10 and 11, 2019.

O n Decemb er 5, 2019 , t his matter was transferred to the undersigned .

The parties filed a Pre - hearing S tipulation including stipulated findings of

fact, which have been incorporated in the Findings of Fact below to the extent

they are relevant.

On December 10, 201 9, the hearing commenced as scheduled. At the

hearing, the parties’ Joint Exhibit 1 was accepted. D CF presented the

testimony of 10 witnesses as follows: Elizabeth Britt (DCF c hild p rotection

i nvestigator (“CPI”) ); Angela Colon (DCF CPI s upervisor); Crysta l Daniel s

( c urrent c aregiver) ; Jemina Lenox ( Families First Network of Lakeview

(“FFN”) child welfare case manager); Laura Leonard (FFN l ice nsing

c ounselor) ; Petra Pistorius Maddens (FFN licensing unit m anager); Regina

Pleas ( DCF N orth W est Region family a nd community services p rogram

m anager); Deidre Sanders (FFN p ermanency s pecialist); Jacy Smith (FFN

adoptions team m anager); and Connie Werner (FFN foster home

development team m anager). Petitioner’s Exhibits 1 through 3 , 5, 8, and 10

through 1 3 were admit ted. Respondents testified on their own behalf and

presented the testimony of Dr. Sharon Streeter, ( Respondent s’ family fri end ).

Respondents’ Exhibit 1 was admitted.

The four - volume Transcript of the hearing was filed on January 13, 2020.

Both parties tim ely filed Proposed Recommended Orders, which have been

considered in prepar ation of this Recommended Order .

All references to the Florida Statutes and Florida Administrative Code

will be to the 2018 codification, which was the law in effect at the time of the

alleged violations. See McCloskey v. Dep’t of Fin. Servs. , 115 So. 3d 441 (Fla.

5th DCA 2013).

F INDINGS OF F ACT

Based upon the testimony, exhibits , and stipulated facts in the Pre -

Hearing Stipulation, the following Findings of Fact are made:

Parties and Background

1 . DCF is the state agency responsible for licensing foster care parents

and foster homes , pursuant to sec tion 409.175, Florida Statutes. D CF

administers foster care licensing by contracting with third - party private

entities. In Circuit 1, t he geographic area where Respondents were issued a

license, DCF has contracted with FFN to be the agency responsible for

facilitating foster care licensing. FFN is also referred to as the Community Based Care Provider (“CBC”).

2 . Respondents, who are husba nd and wife, are foster care parents in a

foster home licensed by DCF. Respondents had been foster parents for approximately six years before their license expired on February 20, 2019.

3 . During the period of their licensure , Respondent s have fostered m ore

than 20 children in their home in Niceville, Florida. 1

4 . Crystal Daniels, the child’s current caregiver, worked at the daycare

where the child attended. After learning A.R. may be ready for adoption,

Ms. Daniels shared her desire to adopt A.R. with Ms . Puri. Thereafter,

Ms. Daniels and her husband began the process t o qualify for adoption of

A.R. At all times material this matter, Ms. Puri was support ive of the child

being placed with Ms. Daniels.

Facts Related to A.R.’s 2 Background

5 . A.R. was place d with Respondents from April 8, 2018 , through

September 26, 2018. She was five years old at the time of her placement.

While A.R. received therapy services, there was no evidence offered to

indicate she was a therapeutic foster child.

6 . Prior to her pla cement in the Puri home, A.R. had an extensive history

of neglect and abuse. She also had a history of violent behavior that caused

harm to herself and others.

7. At school , A.R. would engage in outbursts , which would lead to her

being removed from the cl assroom and placed into a safe space until she

calmed down. On one occasion, A.R.’s teacher reported that “[A.R.] was

slapping herself on the head, which left a r ed handprint on her forehead.” On

or about September 20, 2018, she turned over chairs in a cla ssroom.

8 . A.R. also exhibited uncontrollable tantrums in the presence of

Ms. Daniels. On one occasion, on August 22, 2018, Ms. Daniels advised

Ms. Puri that “I had to restrain her, she bit me.” During another incident,

A.R. threw a container of scissors across the room while other students were

in the classroom. She also flipped a chair and a table and bit Ms. Daniels.

1 Among those children was A. R., who was the child identified in the Notice Letter.

2 The minor child involved in this matter will be referred by her initials A.R. or as “the

child” to protect her identity.

9 . Two weeks after she was placed with Ms. Daniels, A.R. was prohibited

from returning to her school due to her behavior.

10 . At the Puri home, A.R. kicked Ms. Puri in the face. On or about

September 19, 2018, A.R. spit on the Puris ’ and tried to fight them.

11 . Despite receiving therapy, A.R. continued to exhibit uncontrollable

behaviors while residing in the Puris ’ home.

DCF Investigatio n

12 . Several days af ter the incident on September 19 , 2018, DCF received a

call on September 24, 2018, on the abuse hotline alleging A.R. had “10

bruises on her arms that appeared to be finger tips .” After receiving the call

on the hotline, DCF initiat ed an investigation regarding the care provided

to A.R .

13. Elizabeth Britt was the CPI assigned to investigate the allegations. On

September 25, 2018, Ms. Britt first spoke with Ms. Daniels.

14 . Ms. Britt then went to the Puri ho me for a home visit. While at the

Puri home, Ms. Britt examined A.R. and did not observe any pattern of

bruises , which were described in the hotline allegation. Ms. Puri, Ms. Puri’s

minor child, and A.R. were present. 3 During the visit, Ms. Puri informed

Ms. Britt that A.R. would h ave severe trauma tantrums and Ms. Puri would

have to restrain A.R. so that she (A.R.) would not harm herself or Ms. Puri’s

f amily. Ms. Puri showed Ms. Britt one of the ways she would restrain the

child, which she described as the full nelson. Ms. Britt in formed Ms. Puri a

full nelson was not a proper way to restrain A.R., and that Ms. Puri could not

restrain the ch ild at all. Ms. Puri asked Ms. Britt how she should restrain

A.R. and Ms. Britt informed Ms. Puri she could not restrain A.R.

15 . The descripti on of a full nelson was in dispute. As a result, Ms. Britt

described the restraint Ms. Puri demonstrated for her. Ms. Puri would have

3 to the The Puris have a minor child that was not involved in the incidents related

allegations in this case.

the child sit on her lap, she would place her arms unde rneath the armpits of

the child; the child’s arms were rais ed and s lightly behind her head; and

then, Ms. Puri’s hands were interwoven between the child’s arms and placed

behind the child’s neck.

16 . Ms. Puri sent a photograph to Ms. Daniels , which depicted Ms. Puri

restraining A.R. as described by Ms. Britt . The photogr aph, taken in the Puri

home, also showed Ms. Puri with her legs wrapped over the legs of A.R. while

sitting on the floor. Ms. Puri testified that in the photograph the child’s head

is leaned forward because the child was attempting to spit and bite her. Sh e

further explained that she only used the maneuver to protect the child and

other s from harm.

17 . Ms. Puri repeatedly asked Ms. Britt for suggestions to manage the

behavior of A.R. if she had another tantrum and Ms. Britt responded that she

could not rest rain A.R. Ms. Britt did not provide add itional guidance on

methods Ms. Puri could use to manage A.R.’s tantrums.

18 . After Ms. Britt completed the home visit, Ms. Britt, Ms. Puri, and the

child left the home at the same time. When they walked outside, A. R. became

agitated and reluctant to get into the Puri vehicle.

19 . Ms. Puri began making comments directed toward the child’s behavior

as a “show.” Ms. Britt, on the other hand, spoke with the child and A.R.

ultimately calmed down. After the home visit, Ms . Britt had no concerns for

A.R.’s safety and allowed A.R. to remain in the Puri home.

2 0 . On September 25, 2018, the evenin g after the home visit with

Ms. Britt, A.R. experi enced another tantrum. Ms. Puri did not use the full

nelson maneuver to restrain A .R. Instead, Ms. Puri wrapped the child in a

blanket, which protected Ms. Puri and the child from harm.

2 1 . Ms. Puri attempted to contact both D CF and FFN personnel multiple

times because A.R. was having a severe trauma tantrum and was destroying

her room and Ms. Puri was concerned for A.R. and her family’s safety.

Ms. Puri asked both DCF and FFN personnel to assist her with methods to

manage A.R.’s behavior because she had been told earlier that day she could

not use the restraint she had used in the past. DCF and FFN personnel could

not advise Ms. Puri on how to manage A.R.’s behavior. Instead, FFN, without

question, told Ms. Puri the child could not to be restrained.

2 2 . Ms. Puri then called law enforcement for assistance on how to manage

A.R. By the time law enforcement arrived on scene, A.R. was no longer posing

a threat and no action was taken. Ms. Puri repeatedly demanded that DCF

and FFN staff prepare a letter telling Ms. Puri how she could restrain A.R to

keep A.R., Ms. Puri , and her family safe. Bot h DCF and FFN told Ms. Puri

they would not put anything in writing.

2 3 . Although Ms. Puri believed it was necessary, Respondents did not

perform the full nelson maneuver to restrain A.R. after they were instructed

to not use it as a restraint method.

2 4 . On September 25, 2018, after several calls and voicemails, between

DCF, FFN, and Ms. Puri, FFN staff members discussed whether to remove

the child from the Puri home. FFN staff members and Ms. Britt became

concerned that Ms . Puri would continue to restrain the child , and determined

that the child should be placed in a different home.

2 5 . FFN transitioned A.R. out of Respondents ’ home on September 26,

2018. While it is disputed whether DCF removed A.R. or Respondents

requested that she be placed in another h ome, A.R. never returned to

Respondents’ home after September 26, 2018. Rather, she was placed in

Ms. Daniels’ home as a non - relative placement, pending adoption.

2 6 . When asked about mechanical restraints, Regina Pleas, the Northwest

Region Family Safety Program Office Manager, testified that use of a blanket

to restrict the child’s movement could be considered a mechanical restraint. However, she acknowledged that DCF has no rule or definition defining the

term “ mech anical restraint . ”

27. Most important here, h owever, Ms. Pleas admitted that she was not

aware of anyone who indicated that Respondents restrained the child as

punishment. There is no dispute that Ms. Puri repeatedly sought assistance

with the child’ s behavior. Ms. Pleas acknowledged that Resp ondents

regularly sought assistance of case managers, therapists, and the guardian

ad litem to address A.R.’s behavioral problems.

With h olding Food

2 8 . During the investigation, Ms. Britt received a supplemental report

that Respondents instructed a caregi ver to wi thhold food as discipline if A.R.

misbehaved.

2 9 . There were no witnesses presented at hearing who observed any

withholding o f food as disciplinary action. However, Ms. Puri testified about a

message she received from A.R.’s teacher regarding an i ncident where A.R.’s

lunch was thrown out because the child was unable to finish eating due to

time constraints. 4

30 . Ms. Britt did not interview the teacher or any school personnel about

the alleged instruction to withhold food. Furthermore, none of t he school

personnel testified at the hearing.

3 1 . The evidence presented at hearing did not demonstrate that

Respondents instructed a caregiver to withhold food as discipline.

Bathtub I ncident

3 2 . There was also a supplemental report alleging that when the child

refused to get in the bathtub, Ms. Puri was over heard cursing and

threatening the child to get into the bathtub.

3 3 . Ms. Daniels testified that she spoke to Ms. Puri on the phone while

she was giving A.R. a bath. She heard Ms. Puri tell the child to “get in the

4 On or about September 20, 2018, the teacher at school sent a text message to Ms. Puri as

follows: “Just wanted to let you know that earlier [A.R.] refused to come from pirate ship and

ran around the room. The rest of the class went to lunch and I waited with her and told her

that if she did not come, she would be late for lunch and she would not have time to eat. She finally agreed to walk to lunch but when it was time to go, I said one more bite, and I thr ew

the rest of her lunch away. I made sure she had plenty to eat, but I was trying to follow up

with natural consequences. She started to get angry and I said I was so sorry to had to throw

it away but it was time to go . ”

f’ing tub.” Based on sounds she heard during the call a short time later,

Ms. Daniels believed the child fell in the bathtub. She testified that she then

heard Ms. Puri state, “it was an accident, she slipped and fell.”

3 4 . Ms. Britt did not interview Mr. Puri or the child regarding the bathtu b

incident to verify Ms. Daniel s ’ assertions. Ms. Britt also did not make any

verified findings in her final investigative report regarding the bathtub incident.

3 5 . Ms. Puri denies the incident happened.

3 6 . The evidence offered is not persuasive to demonstrate that Ms. Puri

threatened the child , cursed a t her , or allowed her to fall while she was in the

bath tub.

Misuse of Medication Allegation

3 7 . During the investigation, Ms. Britt also received a sup plemental

report that Respondents gave Benadryl, or its generic equivalent, to A.R. to

calm the child.

3 8 . Ms. Daniels testified that when the child transitioned to her care, she

did not have any medication. Ms. Daniels testified that she took the child t o

the pediatrician and she was told that he h ad prescribed Cetirizine in

May 2018.

3 9 . Ms. Daniels also testified that A.R. refuse d to take liquid medicine

because she said the medicine made her sleepy. Ms. Daniels described A.R. as

having difficulty spea king but she often used sign language to communicate.

40 . Ms. Britt interviewed the child about the sleepy medicine allegation.

Ms. Britt testified that the child said, “I take sleepy med, poppy hold (while

crossing her arms) Tia give.” A.R. referred to Ms . Puri as Tia. Ms. Britt later

testified that she could not recall whether the child actually said “no med, no

ick.” These are two distinct versions of the child’s alleged statement.

4 1 . Ms. Britt asked Ms. Puri about givin g the child Benadryl. Ms. Britt

t estified that Ms. Puri denied that she used Benadryl to make the child sleep.

Ms. Britt stated that Ms. Puri acknowledged that A.R.’s pediatrician had

prescribed a medication but she purchased a substitute over - the - counter

medication based on the pharmacis t’s recommendation.

4 2 . To supplement the testimony regarding the use of Benadryl, Petitioner

referenced a text message Ms. Puri sent to Ms. Daniels. During one of A.R.’s

overnight visits with Ms. Daniels, A.R.’s assigned guardian ad litem conducted a

home visit. During the visit, Ms. Puri and Ms. Danie l were exchanging text

messages. At some point after 8:00 p.m., Ms. Puri sent Ms. Daniel a text message

stating “[u] gonna have to give kid 3 cc’s of Benadryl to calm her butt down and pass

out!” followed by a laughing emoji.

4 3 . Ms. Puri contended that she was joking. She further explained that the only

medicine she gave the child was Allegra for c hildren for allergy symptoms.

4 4 . Based on the evidence presented at hearing, there is not sufficient

persuasiv e evidence that Ms. Puri gave or suggested that Ms. Daniels g ive

A.R. Benadryl to calm her. There was not sufficient evidence presented

regarding a prescription for allergy medication for A.R. Since Ms. Britt

testified that it would be permissible for Resp ondents to use an over - the -

counter age - appropriate medicine to treat A.R.’s allergies, there was not

sufficient evidence to demonstrate that medical intervention from a doctor

was necessary.

Protection of Confidential Records

4 5 . DCF alleged in the Notice L etter that Respondents le ft the child's

confidentia l records in a public location.

4 6 . After the child was removed from the home, Ms. Puri returned the

child’s confidential medical records to Ms. Daniels. The parties dispute how

those records were prov ided to Ms. Daniels.

4 7 . Ms. Daniels testified that Ms. Puri contacted her one day and told her

that she would bring the child’s record s to her then place of employment,

Discovery Learning Center . After work that day , Ms. Daniels found the

records unattend ed on the back of her pick - up truck.

4 8 . DCF presented the testimony of Lisa Leonard, the relicensing

counselor for FFN. Ms. Leonard met Ms. Puri at a local fitness center and

had a discussion about the book containin g A.R.’s confidential records.

Ms. Pur i told Ms. Leonard that she gave the book to her friend, Heather, who

placed the book in the truck of the current caregiver , Ms. Daniels.

4 9 . Ms. Puri denied giving the book to Heather. Ms. Puri stat e d that she

met Ms. Daniels at a Walgreen’s and directly gave her the book. To further

support her contention, Ms. Puri testified that she has received HIPPA

training and fully understands the requirements for protection of personal

health information.

50 . Based on the testimony of both Ms. Daniels and Ms. Leon ard offered

at hearing, the undersigned is persuaded that Ms. Puri allowed the child’s

confidential records to be left with a third party and , ultimately, in a public

location.

Outcome of Investigation

5 1 . Based upon her investigation, Ms. Britt made veri fied findings for

threatened harm based on Ms. Puri ’s continued request to restrain the child;

and for substance misuse due to text messages and the child’s statements.

5 2 . After the investigation, Connie Werner, who is responsible for FFN

licensing , revie wed the reports related to A.R. Ms. Werner testified that her

staff prepares the licensing recommendatio n and supporting documents.

Ms. Werner recommended revocation of the Respondents’ foster home license.

Mr. Werner explained that her recommendation was based on the nature of

the verified findings in the DCF child protection report.

5 3 . Regina Pleas, the safety program manager for DCF’s Northwest

Region, also reviewed the case. Ms. Pleas is ultimately responsible for all decisions and final approval for F FN licensing decisions.

5 4 . Ms. Pleas reviewed Ms. Werner’s recommendation of revocation of

Respondents’ foster home license. She considered the verified findings in Ms. Bri tt’s report; the alleged us e of Benadryl to calm the child; and

Ms. Puri’s interact ion with the child. She highlighted that there were

concerns for the child’s safety.

5 5 . Ms. Pleas agreed with Ms. Werner’s recommendation for revocation.

She testified that a corrective action plan was not possible, as the

Respon dents did not acknowledge any wrongdoing. Moreover, Respondents

now had a record of verified abuse, in which case , DCF could not place minor

children in their home.

5 6 . Ms. Pleas prepared the Notice Letter notifying Respondents of DCF’s

decision to revoke/not renew their foster hom e license.

Mitigating Factors

5 7 . The Puris attempted to help the child with her behavior and verbal

communication. To assist with the child’s frustration related to her limited

verbal communication ability, Ms. Puri began t o teach A.R. sign language

a nd scheduled A.R. for speech therapy , beginning in August 2018.

5 8 . Ms. Brown , the licensing team manager , works with staff to determine

whether a license should be revoked. Ms. Brown testified that if a child’s

behavior is out of control, a foster parent should ask for help or request that

the child be removed from the foster home.

5 9 . However, o n September 25, 2018, the tipping point in the tenure of

A.R. residing with the Puris, Ms. Puri attempted to seek assistance from the

case manager and law enforce ment to assist her with the child’s behavior.

Despite these efforts, Ms. Puri did not receive assistance with the child.

60 . Prior to the investigation , there were no complaints Respondents

abuse d or neglect ed A.R. Ms. Britt testified that she did no t obse rve any

harm to the child.

6 1 . Dr. Sharon Streeter testified that she had an opportunity to observe

the Puris’ interaction with A.R. on occasion. She observ ed A.R. hit her

caregivers and throw tantrums, and she noted that the child could not

verbally com municate her needs. Moreover, Dr. Streeter did not see any

interactions with A.R. , which would cause her to be concerned about the

child’s safety in the Puri home . Dr. Streeter also testified that b ased on her

intera ction with the family, the Puri s had bon ded with the child and

integrated the child into their family.

C ONCLUSIONS OF L AW

6 2 . The Division has jurisdiction over the p arties to and subject matter

of this proceeding pursuant to section 120.569 and 120.57(1), Florid a

Statutes (2019).

6 3 . Secti on 409.175 provides in relevant part:

(2) As used in this section, the term:

* * *

(f) “License” means “license” as defined in

s. 120.52 (10). A license under this section is issued

to a family foster home or other facility and is not a

professional license of any individual. Receipt of a

license under this section shall not create a

property right in the recipient. A license under this

act is a public trust and a privilege, and is not an

entitlement. This privilege must guide the finder of

fact or trier of law at any administrative proceeding

or court action initiated by the department.

* * *

(9)(a) The department may deny, suspend, or

revoke a license.

(b) Any of the following actions by a home or

agency or its personnel is a ground for denial,

suspension, or revocation of a license:

1. An intentional or negligent act materially

affecting the health or safety of c hildren in the

home or agency.

6 4 . Pursuant to the authority granted by section 409.175, DCF has

adopted chapter 65C - 13 and 65C - 28, which govern l icensed out - of - home

caregivers. The relevant alleged rules are set forth below.

6 5 . Florida Administrative Co de Rule 65C - 13.025 provides that the

partnership agreement shall be reviewed , discussed , and signed.

6 6 . Rule 65C - 13.030, titled “ Standards for Licensed Out - of - Home

Caregivers, ” provides in relevant part:

(2) Food and Nutrition.

(c) Licensed out - of - home caregivers shall not

withhold food as a means of discipline or

punishment.

* * *

3) Discipline.

(a) Licensed out - of - home caregivers shall discipline

children with kindness, consistency, and

understanding, and with the purpose of helping the

child develop responsibility and self - control.

(b) Licensed out - of - home caregivers shall use

positive methods of discipline. Acceptable methods

of discipline include: reinforcing acceptable

behavior, expressing verbal disappointment of the

child’s behavior, loss of priv ileges, grounding,

restricting the child to the house or yard, sending

the child out of the room and away from the family

activity, and redirecting the child’s activity.

(c) Licensed out - of - home caregivers shall not

subject children to cruel, severe, or un usual forms

of discipline.

* * *

(f) Licensed out - of - home caregivers shall not

withhold meals, clothing, allowance or shelter as a

form of discipline.

* * *

(h) No child shall be mechanically restrained or

locked in any enclosure, room, closet, bathroo m or

area of the house or premises, for any reason.

(i) Licensed out - of - home caregivers shall not

threaten a child with removal, or with a report to

authorities or prohibit visitation with family and

significant others as consequences for unacceptable

beha vior.

(j) Licensed out - of - home caregivers will seek the

assistance of the child’s case manager or therapist

for behavior problems.

6 7 . Rule 65C - 28.003, titled “Medical T reatment, ” provides in relevant

part:

(1) If a child in out - of - home care appears to be

suffering from illness or injury requiring medical intervention, the child welfare professional , upon

notification , or the out - of - home caregiver shall take

the child to the child’s health care provider for a health care screening or treatment. If there is a

medical emergency or an urgent need for medical attention, the child shall be taken to the nearest

available health care provider or hospital.

* * *

(4) The child welfare professional and licensed

caregivers shall receive training in regard to and

com ply with the federal Health Insurance

Portability and Accountability Act which provides procedures regarding the management and

protection of personal health information . The child

welfare professional shall inform relative and non -

relative caregivers rega rding the requirements of

HIPAA.

6 8 . Rule 65C - 13.035(4) provides as follows:

(4) Administrative Action for Existing Family

Foster Homes.

(a) If licensing violations are found such that the child’s physical, mental, or emotional health is or has been ad versely impacted as a result of the

violation or is in danger of being adversely

impacted , the licensing counselor shall consult with his or her supervisor and the child’s case manager for an immediate review of the safety of any

children in the home and a call shall be made to the

Abuse Hotline.

(b) If licensing violations are found which do not

pose an immediate threat to the health, safety or

welfare of the children, the supervising agency

shall prepare a written corrective action plan to correct the d eficiencies. The plan shall be developed

by the supervising agency in conjunction with the

licensed out - of - home caregivers and shall be

approved by the Regional Licensing Authority.

69 . The parties disputed which burden of proof should apply in this

matte r.

70 . Respondents’ license expired after the investigation on February 20,

2019. However, the investigation began while Respondents’ foster home

license was active. Thus, DCF is seeking to revoke/or not renew Respondents ’

foster care license.

71 . As the party asserting the affirmative of an issue before this

administrative tribunal, DCF has the burden of proof. Dep’t of Transp. v.

J.W.C. Co. , 396 So. 2d 778 (Fla. 1st DCA 1981). In a typical professional

licensure case, DCF’s burden would be to show by cl ear and convincing

evidence that Respondents’ license should be revoked. Ferris v. Turlington ,

510 So. 2d 292 (Fla. 1987).

7 2 . However, in accordance with the definition of "license" contained in

section 409.175(2)(f), the licensure status previously grant ed to Respondents

is not a professional license , and does not create a property righ t. Therefore,

DCF must establish facts, which support its position by a preponderance of

the evidence , rather than by the clear and convincing standard normally

imposed in professional licensure cases. See Haines v. Dep’t of Child. &

Fams. , 983 So. 2d 602, 608 (Fla. 5th DCA 2008). See also Dep’t of Banking

and Fin. v. Osborne Stern and Co. , 670 So. 2d 932 (Fla. 1996).

7 3 . The allegations of fact set forth in the Notice Lett er are the grounds

upon which this proceeding is predicated. Trevisani v. Dep ’ t. of Health ,

908 So. 2d 1108, 1109 (Fla. 1st DCA 2005). Thus , the scope of this proceeding

is limited to those matters as framed by Petitioner in the Notice Letter . M.H.

v. Dep’ t of Child. & Fam. Servs , 977 So. 2d 755, 763 (Fla. 2d DCA 2008).

7 4 . Here, Petitioner seeks to revoke R espondents’ foster home license

based on the factual bases identi fied in the Notice Letter , which constitutes

the administrative charging document in this proceeding. Each of the factual

allegations are addressed below.

7 5 . To the extent factual allegations were not a lleged in the charging

document, including not cooperating with the child’s healthcare provider;

maintaining the child’ s stability in sch ool of origin; i n dependent living skil ls

for a child age 13 and older; using disparaging remark directed to a child

about the child’s family; and threats of removal as consequences of

unacceptable behavior will not be addressed herein.

7 6 . Petitioner alleg ed Respo ndents restrained A.R. using a full nelson

maneuver in violation of rule 65C - 13.030(2)(h) , which prohibits out - of - home

caregi vers from mechanically restraining the child .

7 7 . Of importance here, the term “ mechanically restrained ” is not defined

in statute or DCF’s rules. According to principles of statutory construction,

when terms are not defined in a statute, the pla in and ordinary meaning of

the terms applies. See Sw. Fla. Water Mgmt. Dist. v. Save the Manatee Club,

Inc. , 773 So. 2d 594, 599 (Fla . 1st DCA 2000). When necessary, the plain and

ordinary meaning of words (in a statute) can be ascertained by reference to a

dictionary. See Seagrave v. State , 802 So. 2d 281, 286 (Fla. 2001).

7 8 . A restraint is commonly defined as any device that restric t s freedom of

movement . See “Restraint,” Me rriam - Webster .co m , http://www.merriam -

webster.com (last visited February 12, 2020).

7 9 . However, the proscription against using a mechanical restraint is

listed under the disciplinary statute and , thus, applies i f the restraint was

used to discipline the child. He re, there was no testimony presented at

hearing to demonstrate that Ms. Puri restrained the child as a form of

discipline. Rather, the evidence establishes that Ms. Puri only restrain ed

A.R. to protect th e Puri family and the child from harm. T he evidence does

not establish that any restraint was used to discipline the child as

contemplated by the rule 65C - 13.030(2)(h).

80 . Accordingly, Petitioner failed to prove by a preponderance of the

evidence, that Respondents violated rule 65C - 13.030(2)(h).

8 1 . Petitioner alleged that Respondents instructed a caregiver to withhold

food as discipline if the child misbehaved, in violation of rule 65C - 13.030(2).

Here, because there was not sufficient evidence to show R espondents

withheld or instructed anyone to withhold food from the child, there is no

evidentiary basis to conclude that Respondents violated rule 65C - 13.030(2).

8 2 . Petitioner also alleged Respondents violated rule 65C - 28.003(1) by

giving A.R. Ben adryl to calm her . Ms. Puri acknowledged that she gave the

child Allegra for children. However, as set forth in the Findings of F act above,

there is not sufficient evidence to demonstrate that Ms. Puri gave A.R.

Benadryl. Thus, Petitioner did not meet its burden t o prove by a

preponderance of the evidence that Respondents violated rule 65C - 28.003(1).

8 3 . Petitioner alleged Respondents cursed at the child and threat ened her

while in the bathtub. The evidence offered at hearing did not demonstrate

that Respondents th reatened the child and cursed at her while she was in the

bathtub, in violation of chapter 65C - 13 or 65C - 28.

8 4 . In the N otice Letter , Petitioner alleged that Respondents violated 65C -

28.003(4), by leaving the child's confidential records in a pub lic locat ion . As

discussed above, the evidence demonstrates that Ms. Puri gave the binder

with A.R.’s confidential records to a third party (her friend Heather) , who left

the records on Ms. Daniel s ’ truck in a public location. In short, Petitioner

proved by a prepo nderance of evidence that Respondents failed to protect the

personal health information of A.R. and , thus, violated rule 65C - 28.003(4).

8 5 . The evidence presented at hearing, established that Ms. Puri left

A.R.’s confidential records in a public place . B as ed on the violation proven,

Petitioner did not prove that Respondents’ license should be revoked/not

renewed.

8 6 . Based on the information available at the time, DCF concluded

that Respondents would not be receptive to correcting alleged deficiencies .

Bas ed on the violation found, Respondents’ actions did not pose an immediate

threat to the health, safety , or welfare of the child, and thus, a corrective

action plan would be appropriate. Further, the evidence offered a t hearing

establishe d mitigating circum stances should DCF determine that a lesser

penalty would be appropriate.

R ECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

R ECOMMENDED that a final order be entered by Department of Children and

Families finding the fost er home license of Respondents Kapil and Katrina

Puri should not be revoked/not renewed.

D ONE A ND E NTERED this 20 th day of February , 2020 , in Tallahassee, Leon

County, Florida.

Y OLONDA Y. G REEN

Administrative Law Judge

Division of Administrative Hea rings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 20 th day o f February , 2020 .

C OPIES F URNI SHED :

Lacey Kantor, Agency Clerk

Department of Children and Families

Building 2, Room 204Z

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

(eServed)

Kathryn Marie Brown, Esquire

Department of Children and Families

160 Governmental Center

Pensaco la, Florida 32502 - 5734

(eServed)

Dana C. Matthews, II, Esquire

Matthews & Jones, LLP

2930 West County Highway 30A

Santa Rosa Beach, Florida 32459

(eServed)

Javier Enriquez, General Counsel

Department of Children and Families

Building 2, Room 204F

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

(eServed)

Chad Poppell, Secretary

Department of Children and Families

Building 1, Room 202

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

(eServed)

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

All parties have the right to submit written exceptions within 1 5 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.