98-003865
Department Of Children And Family Services vs.
Lucille Sims
Status: Closed
Recommended Order on Monday, March 1, 1999.
Recommended Order on Monday, March 1, 1999.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8DEPARTMENT OF CHILDREN AND )
13FAMILY SERVICES, )
16)
17Petitioner, )
19)
20vs. ) Case No. 98-3865
25)
26LUCILLE SIMS, )
29)
30Respondent. )
32__________________________________)
33RECOMMENDED ORDER
35Pursuant to notice, a final hearing was held in this case on
47November 17, 1998, in West Palm Beach, Florida, before Michael M.
58Parrish, an Administrative Law Judge of the Division of
67Administrative Hearings.
69APPEARANCES
70For Petitioner: Colleen Farnsworth, Esquire
75Department of Children and Family Services
81111 South Sapodilla Avenue
85West Palm Beach, Florida 33401
90For Respondent: No appearance at hearing
96STATEMENT OF THE ISSUE
100The issue in this case is whether the Respondent's license
110to provide foster care should be revoked for any of the reasons
122set forth in the Department's revocation letter dated July 23,
1321998.
133PRELIMINARY STATEMENT
135By letter dated July 23, 1998, the Department of Children
145and Family Services (DCFS) notified the Respondent of its intent
155to revoke the Respondent's license to provide foster care.
164Grounds for the proposed revocation were specified in the notice.
174The Respondent timely requested an evidentiary hearing, and the
183matter was forwarded to the Division of Administrative Hearings
192for assignment to an Administrative Law Judge. On September 22,
2021998, a written Notice of Hearing was mailed to all parties
213scheduling this case for final hearing in West Palm Beach on
224November 17, 1998, beginning at 10:00 a.m. Events at hearing and
235shortly thereafter are described as follows in a post-hearing
244order issued on December 2, 1998:
250The final hearing in this case was held on
259November 17, 1998, in West Palm Beach,
266Florida. All parties were provided with
272advance written notice of the date, time, and
280location of the hearing. The hearing was
287scheduled to begin at 10:00 a.m.
293Petitioner's counsel and witnesses were
298present at the scheduled time and place. The
306Respondent was not present. The commencement
312of the hearing was postponed until 10:30 a.m.
320due to the absence of the Respondent. At
32810:30 a.m. the hearing commenced and the
335undersigned received evidence offered by the
341Petitioner. The hearing concluded at
346approximately 11:45 a.m. The Respondent
351never appeared at the hearing.
356At approximately 3:45 p.m. on November 17,
3631998, the Respondent called the undersigned's
369secretary. The Respondent stated that she
375had not been able to find the hearing
383location because she left her copy of the
391Notice of Hearing at home. The Respondent
398also stated that she wanted to speak to the
407undersigned about the matter.
411A telephone conference was scheduled for
417November 30, 1998. Both parties participated
423in the conference. During the course of the
431conference, the Respondent requested that the
437hearing be reconvened. The Petitioner
442objected to that request, primarily on the
449grounds that the Respondent had not shown
456good cause for her failure to appear at the
465hearing and that reconvening the hearing
471would burden the Petitioner unreasonably by
477requiring it to spend additional time and
484money to retry the case.
489The Respondent has not shown good cause for
497her failure to attend the hearing. The
504Respondent has also failed to identify any
511evidence she wishes to offer that could
518reasonably be expected to make a material
525difference in the outcome of the hearing.
532Accordingly, her request to reconvene the
538hearing will be denied.
542In an effort to address some of the Respondent's concerns,
552the order of December 2, 1998, that denied the request to
563reconvene the hearing also required the Petitioner to furnish the
573Respondent with a free copy of the transcript of the hearing.
584The order also provided that all parties would be allowed twenty
595days from the date the transcript was furnished to the Respondent
606within which to file their respective proposed recommended
614orders.
615A copy of the hearing transcript was furnished to the
625Respondent on January 4, 1999. On January 25, 1999, the
635Petitioner filed a proposed recommended order containing proposed
643findings of fact and conclusions of law. As of the date of this
656Recommended Order, the Respondent has not filed any post-hearing
665documents.
666FINDINGS OF FACT
6691. At all times material, the Respondent was licensed by
679the Petitioner to operate a foster home.
6862. In conjunction with the placement of foster children in
696her home, the Respondent signed an Agreement to Provide
705substitute Care for Dependent Children. In that document, the
714Respondent agreed to the following conditions, among others:
7222 - We are fully and directly responsible to
731the Department for the care of the child.
739* * *
7425 - We will not permit the removal of the
752child from our home, except by an authorized
760representative of the Department or by
766instruction of such representative.
7706 - We will not give the child into the care
781or physical custody of any other person(s),
788including the natural parent(s), without the
794consent of a representative of the
800Department.
801* * *
8049 - We will accept dependent children into
812our home for care only from the Department
820and will make no plans for boarding other
828children or adults.
831* * *
83411 - We will notify the Department
841immediately of any change in our address,
848employment, living arrangements, family
852composition, or law enforcement involvement.
857* * *
86015 - We will comply with all requirements
868for a licensed substitute care home as
875prescribed by the Department.
8793. On May 1, 1997, a family services counselor visited the
890Respondent's home on a routine visit to check on the status of
902one of the foster children in the Respondent's home. During that
913visit the counselor observed various hazardous and unsanitary
921conditions in the home. Several upstairs windows were open. The
931windows had no screens or other barriers to prevent a child from
943falling out the window. There was a foul stench in the house.
955Contributing to the stench were numerous plates of decaying food
965randomly scattered throughout the home. There was a light
974fixture with a bare bulb and no light shade.
9834. On May 1, 1997, the child that the counselor was
994visiting was seven years-old. The counselor was concerned, for
1003several reasons, about the quality of care the child was
1013receiving. The child was very dirty, and did not appear to have
1025been bathed recently. The child also had a large, obvious
1035ringworm. The counselor asked the Respondent if the child had
1045been taken to a doctor for treatment of the ringworm. The
1056Respondent admitted that she had not taken the child to the
1067doctor and then stated some illogical and frivolous reasons for
1077her failure to seek medical attention for the foster child.
10875. During the May 1, 1997, visit, the seven year-old foster
1098child told the counselor that the children in the neighborhood
1108hated him. When asked for details, the foster child described an
1119incident during which, while he was outside, a group of
1129neighborhood children removed all of the foster child's clothing
1138and then urinated on him. When questioned about this incident,
1148the Respondent admitted that she had witnessed the incident. The
1158Respondent's only excuse for allowing the incident to occur was
1168that she had told the foster child not to go outside and he
1181disobeyed her and went outside without permission.
11886. On various unspecified occasions during the latter part
1197of 1997 and the first three months of 1998, the Respondent's
1208minor grandson, who sometimes lived with the Respondent and
1217sometimes lived with his mother, engaged in sexual intercourse
1226with one of the female minor foster children in the Respondent's
1237home. The Respondent was aware that her grandson had engaged in
1248sexual intercourse with one of her foster children. The
1257Respondent made ineffectual efforts to prevent her grandson from
1266having sexual intercourse with the female foster child. At least
1276three months after discovering this conduct, the Respondent
1284advised personnel of the DCFS for the first time that her
1295grandson had been having sexual intercourse with one of the
1305foster children in the Respondent's home.
13117. Around mid-afternoon on January 9, 1998, a police office
1321of the South Bay Police Department went to the Respondent's home
1332at the request of a family services counselor of the DCFS, who
1344was making a routine visit to check on the status of two of the
1358foster children living at that home. On that afternoon, the only
1369adults present were the counselor from DCFS and the police
1379officer. Two of the Respondent's foster children were home
1388without any adult supervision. Those two foster children were
1397thirteen and fifteen years of age, respectively.
14048. On January 9, 1998, the Respondent was on a trip outside
1416the State of Florida. She had been gone for at least two days
1429and was not expected to return for several more days. She had
1441one of her foster children with her on the out-of-state trip.
1452The Respondent had not advised the DCFS that she was taking a
1464foster child out of the State of Florida, nor did she have
1476permission from anyone at DCFS to take the foster child out of
1488the State of Florida.
14929. Similarly, the Respondent had not advised the DCFS that,
1502while on her out-of-state trip, she was leaving two of her foster
1514children in her home, supposedly under the car and supervision of
1525her adult brother, Leroy Ball. Mr. Ball had not been approved by
1537anyone at DCFS as a temporary substitute caregiver for any of the
1549foster children living with the Respondent.
155510. On January 9, 1998, the Respondent's home presented a
1565variety of hazardous and unsanitary conditions. These conditions
1573are perhaps best described in the words of the police officer who
1585was present that day: 1
1590Upon arriving at the scene I found that the
1599children were left abandon[ed] completely.
1604There was no adult supervision whatsoever. I
1611found the interior of the house was in
1619disarray. There were numerous unsanitary
1624conditions within the household, human
1629defecation, rotting food, open garbage cans,
1635knives on the floor, tools, equipment,
1641alcoholic containers that were half empty,
1647strewn all over the house.
1652* * *
1655The baby training potty was right at the
1663entry to the kitchen in the living room and
1672it had urine, mold growing on top of the
1681water and looked like defecation inside the
1688bowl itself.
1690* * *
1693There was an overabundance of garbage and
1700clothes. It was just everywhere. It wasn't
1707just one place. It wasn't a bag here, a bag
1717there, piece here, piece there. It was
1724strewn everywhere on every piece of
1730furniture, on the floor. Within every two
1737feet there was garbage of some sort on the
1746floor as if someone had thrown bags of
1754garbage. It was just thrown all over the
1762house.
1763* * *
1766I did look in the kitchen and I took
1775photographs which I submitted and I found
1782food that was half-cooked and half raw
1789sitting there decaying, which was moldy and
1796just rotting in the kitchen.
1801* * *
1804[Referring to a photograph] That was the
1811upstairs bathroom. There was defecation in
1817the water in the toilet. I was unaware if
1826water was actually working in the residence
1833at that time. It didn't appear to me that it
1843was. I would've assumed that somebody
1849would've flushed the toilet if it hadn't
1856(sic) been. It seemed like it had been that
1865way for several days.
186911. The two foster children who were left in the
1879Respondent's home while she went on an out-of-state trip did not
1890have a key to the house. Accordingly, they were unable to lock
1902the house.
190412. On January 9, 1998, the police officer and the family
1915services counselor interviewed the two foster children.
1922Information provided by the children indicated that the
1930Respondent had been out-of-town for two days and that a man named
1942Leroy Ball was supposed to be taking care of them, but that they
1955had not had any adult supervision during the past two days.
1966Efforts to locate Leroy Ball were unsuccessful. Due to the lack
1977of adult supervision and due to the hazardous and unsanitary
1987condition of the home, the police officer and the family services
1998counselor removed the two foster children from the Respondent's
2007home. The police officer took one of the foster children (for
2018whom a warrant was outstanding) to the police station, where the
2029child was fed and then transported to a juvenile detention
2039facility. The family services counselor took the other foster
2048child and delivered the child to another foster home.
205713. Later in the afternoon of January 9, 1998, a child
2068protective investigator went to the Respondent's home. The only
2077person present at that time was Leroy Ball, an adult man, who is
2090the Respondent's brother. During an interview with the
2098investigator, Leroy Ball explained that his sister, the
2106Respondent, had to go out of town to a funeral and that during
2119her absence he was supposed to care for the two foster children
2131who had earlier that day been found in the home without any adult
2144supervision. Mr. Ball also explained that he worked each day
2154from approximately 5:00 a.m. until approximately 5:00 p.m. At
2163the time of the interview, Mr. Ball did not know the whereabouts
2175of the two foster children he was supposed to be caring for.
218714. Several days later, on January 13, 1998, the child
2197protective investigator interviewed the Respondent. During that
2204interview the Respondent admitted that she had made an out-of-
2214state trip with one of her foster children, and also admitted
2225that she had left two of the foster children at her home, with
2238the understanding that her brother, Mr. Ball, would be
2247supervising them. In subsequent interviews with Department
2254personnel, the Respondent blamed the unsanitary conditions in her
2263home on the two children she had left there and on her brother's
2276failure to do what he was supposed to do.
228515. The DCFS never consented to Mr. Ball being placed in a
2297temporary role supervising any of the foster children who lived
2307with the Respondent.
231016. While licensed to operate a foster home, the Respondent
2320was required to keep the DCFS informed as to who was living in
2333the Respondent's home. While so licensed, there were several
2342occasions on which the Respondent failed to report changes as to
2353who was living in her home. On at least one occasion the
2365Respondent provided the DCFS with false information about who was
2375living in her home.
2379CONCLUSIONS OF LAW
238217. The Division of Administrative Hearings has
2389jurisdiction over the subject matter of this proceeding and the
2399parties thereto, pursuant to Sections 120.569 and 120.57(1),
2407Florida Statutes.
240918. This case involves the revocation of the Respondent's
2418family foster home license. See Dubin v. Department of Business
2428Regulation , 262 So. 2d 273 (Fla. 1st DCA 1972) (holding that non-
2440renewal of annual license cannot serve as substitute for
2449revocation proceedings). Accordingly, the Department has the
2456burden of proving that she committed the offenses alleged. See
2466Florida Department of Transportation v. J. W. C. Co., Inc. , 396
2477So. 2d 778, 788 (Fla. 1st DCA 1981) ("'party asserting the
2489affirmative of an issue before an administrative tribunal'" has
2498the burden of proof). 2
250319. A "license" for purposes of Section 409.175, Florida
2512Statutes, is defined in Section 409.175(2), as follows:
2520(f) "License" means "license" as defined
2526in s. 120.52(9). A license under this
2533section is issued to a family foster home or
2542other facility and is not a professional
2549license of any individual. Receipt of a
2556license under this section shall not create a
2564property right in the recipient. A license
2571under this act is a public trust and a
2580privilege, and is not an entitlement. This
2587privilege must guide the finder of fact or
2595trier of law at any administrative proceeding
2602or court action initiated by the department.
2609By this definition, the Legislature has clearly indicated its
2618intent that the "clear and convincing" standard of proof made
2628applicable in Ferris v. Turlington , 510 So. 2d 292, 294 (Fla.
26391987), to the revocation of professional licenses is inapplicable
2648to the revocation of a family foster home license. Therefore,
2658the Department is required to prove the allegations in this case
2669by a preponderance of the evidence. See Florida Department of
2679Health and Rehabilitative Services v. Career Service Commission ,
2687289 So. 2d, 412, 415 (Fla. 4th DCA 1974) (generally, burden of
2699proof before an administrative agency is by a preponderance of
2709the evidence); Section 120.57(1)(h), Florida Statutes. 3
271620. Subsection (4) of Section 409.175, Florida Statutes,
2724authorizes the DCFS to adopt rules for foster care homes. Such
2735rules have been promulgated and now appear in Chapter 65C-13,
2745Florida Administrative Code. Rule 65C-13.010, Florida
2751Administrative Code, titled Substitute Care Parents' Role as a
2760Team Member, includes the following relevant provisions:
2767(1) Responsibilities of the Substitute
2772Parent to the Child.
2776* * *
2779(b) Family Care Activities.
27831. Daily living tasks.
2787a. The substitute care parents are
2793expected to provide structure and daily
2799activities designed to promote the individual
2805physical, social, intellectual, spiritual,
2809and emotional development of the children in
2816their home.
2818* * *
28212. Food and Nutrition.
2825a. The substitute care parents must
2831provide nutritionally balanced meals and age
2837appropriate snacks.
28396. Health Care.
2842* * *
2845b. The substitute care parents are
2851expected to transport children for medical,
2857dental or other appointments which may be
2864needed.
2865* * *
2868d. The substitute care parents must
2874immediately report to the department any
2880serious changes in the health or mental
2887health of a child.
2891* * *
2894(4) Responsibilities of the Substitute
2899Care Parents to the Department.
2904(g) The substitute care parents must
2910notify the department regarding changes which
2916affect the life and circumstances of the
2923shelter or foster family.
2927(h) The substitute care parents must
2933notify the department at least two weeks in
2941advance of vacations in which the child will
2949be participating.
295121. Rule 65C-13.011, Florida Administrative Code, titled
2958Minimum Standards for Licensure of Family Foster Homes, Family
2967Emergency Shelter Homes and Family Group Homes, contains the
2976following relevant provisions:
2979(11) Physical Environment.
2982* * *
2985(b) The home and premises must be free
2993from objects, materials, and conditions which
2999constitute a danger to children.
3004* * *
3007(13) Interior environment.
3010* * *
3013(g) The home must be clean and free of
3022hazards to the health and physical well-being
3029of the family.
3032* * *
3035(17) Medical Care. Substitute care
3040parents must be able to understand and
3047willing to carry out home medical care
3054prescribed by a licensed physician.
3059Medication should not be given without first
3066consulting the physician. . . .
307222. Rule 65C-13.015, Florida Administrative Code, titled
3079Prevention and Management of Sexual Assault in Foster Care,
3088includes the following relevant provisions:
3093(2) The following safeguards are to be
3100used by the department on a routine basis:
3108* * *
3111(c) Within 10 working days of an incident
3119of sexual assault, seduction or exploitation,
3125the perpetrator and the victim must be
3132referred for assessment by a mental health
3139provider to determine the need for therapy.
3146* * *
3149(4) The following reporting procedures are
3155required when a child-on-child sexual
3160assault, seduction or exploitation incident
3165is alleged:
3167(a) Whoever first becomes aware of the
3174situation is required to report the
3180information to the FPSS Abuse Registry if it
3188is suspected that the alleged victim lacks
3195supervision or has been neglected or abused
3202by the caretaker.
3205(b) If no report is taken by the abuse
3214registry, all information pertinent to the
3220child-on-child sexual incident will be
3225transmitted to the OPA for protective
3231investigations in the appropriate county as a
3238request for services.
3241(c) The OPA for protective investigations
3247will share all information with their
3253counterpart OPA for foster care to ensure
3260that a service worker will visit the home or
3269facility, assess the situation and provide
3275the follow-up services needed.
327923. Section 409.175(8), Florida Statutes, reads as follows:
3287(8)(a) The department may deny, suspend,
3293or revoke a license.
3297(b) Any of the following actions by a home
3306or agency or its personnel is a ground for
3315denial, suspension, or revocation of a
3321license:
33221. An intentional or negligent act
3328materially affecting the health or safety of
3335children in the home or agency.
33412. A violation of the provisions of this
3349section or of licensing rules promulgated
3355pursuant to this section.
33593. Noncompliance with the requirements for
3365good moral character as specified in
3371paragraph (4)(a).
33734. Failure to dismiss personnel found in
3380noncompliance with requirements for good
3385moral character.
338724. The facts in this case establish that, on more than one
3399occasion, the Respondent engaged in intentional or negligent
3407conduct materially affecting the health and safety of foster
3416children in her home. The facts in this case also establish
3427that, on more than one occasion, the Respondent engaged in
3437conduct that violated one or more of the rule provisions, quoted
3448above, promulgated pursuant to Section 409.175, Florida Statutes.
3456In view of the nature of the violations described in the findings
3468of fact, the Respondent is not an appropriate person to be
3479trusted with the care of foster children, and her license should
3490be revoked.
3492RECOMMENDATION
3493Based on all of the foregoing, it is RECOMMENDED that a
3504final order be issued in this case revoking the Respondent's
3514foster home license.
3517DONE AND ENTERED this 1st day of March, 1999, in
3527Tallahassee, Leon County, Florida.
3531___________________________________
3532MICHAEL M. PARRISH
3535Administrative Law Judge
3538Division of Administrative Hearings
3542The DeSoto Building
35451230 Apalachee Parkway
3548Tallahassee, Florida 32399-3060
3551(850) 488-9675 SUNCOM 278-9675
3555Fax Filing (850) 921-6847
3559www.doah.state.fl.us
3560Filed with the Clerk of the
3566Division of Administrative Hearings
3570this 1st day of March, 1999.
3576ENDNOTES
35771/ The quoted testimony is from pages 7 through 12 of the
3589transcript of the final hearing. The police officer's testimony
3598was also graphically corroborated by photographs he took that day
3608in the Respondent's home.
36122/ This proceeding was not initiated by the Respondent's request
3622for an evidentiary hearing. Instead, it was initiated by the
3632issuance of the notice that the DCFS intended to revoke the
3643Respondent's license. That notice is, as is must be, the
3653functional equivalent of the "administrative complaint" required
3660by Section 120.60(5), Florida Statutes, as a necessary first step
3670in the revocation "of any license." Such a charging document
3680typically asserts facts which the agency believes entitles the
3689agency to the relief it seeks; in this case, the revocation of the
3702Respondent's license. By filing such a charging document, an
3711agency asserts the affirmative of the facts set forth in the
3722document and, in the normal course of events, is the party that
3734bears the burden of proving those facts if they are disputed. In
3746some of its final orders in cases involving similar issues, the
3757DFCS has taken the view that it does not bear the burden of proof
3771in foster home license revocation cases. See Sylvia and Robert
3781Mitchell v. Department of Children and Family Services , DOAH Case
3791No. 97-5477, DCFS rendition No. DCF-98-280-FO (Final Order of
3800Sept. 2, 1998); Mary Mitchell v. Department of Children and Family
3811Services , DOAH Case No. 97-4958, DCFS rendition No. DCF-98-336-
3820Florida Statutes (Final Order Dec. 2, 1998). In the cited final
3831orders, the DCFS has attempted to transmogrify license revocation
3840cases into license denial cases, relying in part on Section
3850409.175(2)(f), Florida Statutes, and in part on a strained
3859interpretation of Osbourne Stern (670 So. 2d 932). Neither the
3869cited statutory provision nor the cited court decision provide a
3879logical basis for removing the burden of proof from the agency and
3891placing it on the licensee in a license revocation proceeding.
39013/ Section 120.57(1)(h), Florida Statutes, states: "Findings of
3909fact shall be based upon a preponderance of the evidence, except
3920in penal or licensure disciplinary proceedings or except as
3929otherwise provided by statute. . . ."
3936COPIES FURNISHED:
3938Colleen Farnsworth, Esquire
3941Department of Children and Family Services
3947111 South Sapodilla Avenue
3951West Palm Beach, Florida 33401
3956Ms. Lucille Sims
3959Post Office Box 752
3963South Bay, Florida 33493
3967Gregory D. Venz, Agency Clerk
3972Department of Children and Family Services
3978Building 2, Room 204
39821317 Winewood Boulevard
3985Tallahassee, Florida 32399-0700
3988John S. Slye, General Counsel
3993Department of Children and Family Services
3999Building 2, Room 204
40031317 Winewood Boulevard
4006Tallahassee, Florida 32399-0700
4009NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
4015All parties have the right to submit written exceptions within 15
4026days from the date of this Recommended Order. Any exceptions to
4037this Recommended Order should be filed with the agency that will
4048issue the Final Order in this case.
- Date
- Proceedings
- Date: 01/10/2000
- Proceedings: Final Order Revoking Licensure to Provide Foster Care filed.
- Date: 01/27/1999
- Proceedings: cc Transcript w/cover letter rec`d
- Date: 01/25/1999
- Proceedings: Petitioner`s Proposed Recommended Order (filed via facsimile).
- Date: 01/06/1999
- Proceedings: Letter to L. Sims from C. Farnsworth Re: Judge Order dated 12/2/98 filed.
- Date: 12/02/1998
- Proceedings: Order sent out. (respondent`s request to reconvene hearing is denied; petitioner to arrange for the preparation of the final hearing transcript)
- Date: 11/19/1998
- Proceedings: Notice of Telephone Conference sent out. (telephonic conference set for 11/30/98; 9:30am)
- Date: 11/17/1998
- Proceedings: CASE STATUS: Hearing Held.
- Date: 09/22/1998
- Proceedings: Notice of Hearing sent out. (hearing set for 11/17/98; 10:00am; WPB)
- Date: 09/14/1998
- Proceedings: (Petitioner) Agreed Response to Initial Order (filed via facsimile).
- Date: 09/08/1998
- Proceedings: Initial Order issued.
- Date: 08/28/1998
- Proceedings: Notice; Request for An Administrative Hearing, letter form; Agency Action Letter filed.