98-004134 Department Of Children And Family Services vs. Kristie Huggins Status: Closed Recommended Order on Friday, April 2, 1999.

Summary: The Department failed to establish sufficient facts to show that Respondent`s foster care license should be revoked.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN )

AND FAMILY SERVICES, )

)

Respondent, )

)

vs. ) Case No. 98-4134

)

KRISTIE (HUGGINS) PFINGSTON, )

)

Respondent. )

____________________________________)

RECOMMENDED ORDER

Upon due notice, William R. Cave, an Administrative Law

Judge for the Division of Administrative Hearings, held a formal

hearing in this matter on February 2-3, 1999, in Lake Wales,

Florida.

APPEARANCES

For Respondent: Jack Emory Farley, Esquire

Department of Children

and Family Services

4720 Old Highway 37

Lakeland, Florida 33813-2030

For Respondent: Raymond A. Goodwill, Jr., Esquire

107 Avenue A, Northwest

Post Office Box 2334

Winter Haven, Florida 33883

STATEMENT OF THE ISSUE

Should Respondent's family foster home license be revoked,

suspended, or otherwise disciplined based on the facts alleged in

the Notice of Denial dated August 27, 1998, as amended?

PRELIMINARY STATEMENT

By a Notice of Denial dated August 27, 1998, as amended,

the Department of Children and Family Services (Department)

advised Respondent that her license as a foster home had been

revoked based on Section 409.175(8), Florida Statutes, and

Rule 65C-13.011, Florida Administrative Code. The grounds for

the revocation was Respondent's alleged violation of

Rules 65C-13.010(1)(b)1.c., 65C-13.009(1)(e)10.,

65C-13.010(4)(j), and 65C-13.010(4)(g), Florida Administrative

Code. The Department further alleged that pursuant to

Section 409.175(8)(b)1., Florida Statutes, Respondent's violation

of those rules created an unsafe environment for the foster

children. By letter dated September 1, 1998, Respondent denied

the allegations and requested an administrative hearing. By

Notice dated September 17, 1998, the Department referred the

matter to the Division of Administrative Hearings (Division) for

the assignment of an Administrative Law Judge and for the conduct

of a formal hearing.

At the hearing, the Department presented the testimony of

Desiree Ann Smith, Mary Jordan, Vicky Barron, Evelyn Lamison,

Dorothy Jean Purdy, and Patrice (Thigpen) Bryant. The

Department’s Exhibits numbered 1-3 were received as evidence.

Respondent testified on her own behalf and presented the

testimony of Mary Jordan, Inez Byrd, Sally Jo Harshman, Vicky

Richmond, and Carolyn Scurry. Respondent's Exhibits numbered 1-2

were received as evidence.

A Transcript of this proceeding was filed with the Division

on February 22, 1999. The Department timely filed its proposed

recommended order. Respondent elected not file a proposed

recommended

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence

adduced at the hearing, the following relevant findings of fact

are made:

1. The Department is the agency of the State of Florida

charged with the responsibility of licensing family foster homes

and administering the foster care program as it relates to family

foster homes, such as providing foster care supervision and

services.

2. On June 16, 1997, Kristie and Robert Huggins (Huggins)

of 1403 Chamberlain Loop, Lake Wales, Polk County, Florida, were

issued a Certificate of License by the Department to operate a

family foster home for children. Subsequently, the Department

placed foster care children in the Huggins' home.

3. At all times pertinent to this proceeding, the

Department had the children A.M., born December 29, 1996, L.M.,

born September 30, 1995, and A.C., born October 22, 1996, placed

in the Huggins' home.

4. The Notice of Denial dated August 27, 1998, provides in

pertinent part as follows: .

This letter provides notice that your license

as a foster home is revoked based on Section

409.175(8), Florida Statutes, and Rule 65C-

13.001, Florida Administrative Code (F.A.C.).

The reasons for the revocation are as

follows:

Vickie Barron, of Nurturing Families Project,

Evelyn Liamison [sic], Guardian Ad Litem, and

Family Service Counselors Patrice Thigpen and

Desiree Smith noted as to Mrs. Huggins'

"possessiveness" of the children toward the

birth parents. The children were known in

the Busy Bee Preschool as the "Huggins

Children." The children's belongings were

marked as "Huggins." These actions violate

Rule 65C-13.010(1)(b)(1)(c)(F.A.C.), which

states that substitute care parents are

expected to help children in their care to

maintain a sense of their past and record of

their present.

Bruises and other injuries noted by Vickie

Barron of Nurturing Families Project, Evelyn

Liamison [sic], Guardian Ad Litem, and the

birth parents. The Busy Bee Preschool also

noted bruises and various injuries to the

three children on 2/13/98, 2/26/98, 3/2/98.

3/16/98, and 3/23/98. While they resided in

the Huggins' home. Since the children have

moved from the home, these types of injuries

are not occurring. Rule 65C-13.009(e)(10)

(F.A.C.), require that foster parents must be

able to provide a healthy and safe

environment for children and youth and keep

them from harm. You have failed to comply

with this rule.

Desiree Smith, Family Service Counselor,

noted that on 3/12/98, when Mrs. Huggins was

questioned about a bruise on a male foster

child, she told Desiree Smith that the bruise

occurred at the daycare. The daycare notes

reflected that Mrs. Huggins told the daycare

that the bruise was received at the doctor's

office. This violates Rule 65C-

13.010(4)(1)(F.A.C.), which states that the

substitute care parents must notify the

department immediately of illness or

accidents involving the child.

You did not notify the department when you

and Mr. Huggins separated. This violates

Rule 65C-13.010(4)(g), which states

substitute care parents must notify the

department regarding changes which affect the

life and circumstances of the foster family.

Your violation of the above mentioned

Administrative Rules created an unsafe

environment for foster children. Section

409.175(8)(b)1, Florida Statutes.

At the beginning of the hearing, the Department made an ore tenus

motion to amend certain rule citations in the Notice of Denial.

The motion was granted and the citations to

Rules 65C-13.010(1)(b)(1)(c)(F.A.C.); 65C-13.009(e)(10)(F.A.C.);

65C-13.010(4)(1)(F.A.C.); and 65C-13.0010(4)(g)(F.A.C.) were

amended to read as follows: Rules 65C-13.010(1)(b)1.c.;

65C-13.009(1)(e)10.; 65C-13.010(4)(j); and 65C-13.010(4)(g),

Florida Administrative Code, respectively.

5. Respondent was a very loving, caring and affectionate

foster parent and expressed her love, care, and affection with

L.M., A. M., and A.C. both in and out of the foster home.

6. From the very beginning, Respondent understood that the

ultimate goal for L.M. and A.M. was reunification with their

biological parents.

7. At some point in time after A.C. was placed in foster

care with Respondent, she expressed a desire to adopt A.C. At

this time, Respondent understood (mistakenly) that the goal was

to terminate the parental rights of A.C.'s biological parents.

However, the Department's goal was for reunification and not

termination of parental rights. In fact, it is not unusual for

foster parents to adopt a child placed in their care when and if

the Department terminates the parental rights of the biological

parents and offers the child for adoption. Upon learning of the

Department's goal of reunification for A.C., Respondent did not

pursue the issue of adoption of A.C.

8. Apparently, Vicky Barron and, to some degree, Evelyn

Lamison misunderstood Respondent's love, care, and affection for

these children as possessive and interfering with the goal of

reunification. Vicky Barron is employed by Regency Medical

Center, Winter Haven, Florida, supervising the Nurturing Families

Program. Evelyn Lamison is the guardian ad litem for L.M. and

A.M. Patricia Bryant, Family Service Counselor with the

Department, described Respondent as being over-protective but did

not see Respondent's love, care, and affection for the children

as being an attempt to undermine the goal of reunification.

9. Respondent enrolled L.M., A.M., and A.C., in the Busy

Bee Preschool. At the Busy Bee Preschool, the children were at

times referred to as the "Huggins" children. However, there was

no attempt by Respondent or her husband to conceal the fact that

the children were their foster children. They were enrolled

under their biological parents' name. Some of their belongings

were marked "Huggins" and some of the belongings were marked in

the child's given name. The marking of the children's belongings

was for the convenience of the Busy Bee Preschool and not

intended as a means to deprive the children of sense of their

past or present.

10. Although there may have been some hostility on the part

of both the Respondent and the biological parents of the

children, there was insufficient evidence to show that

Respondent, either intentionally or unintentionally, attempted to

interfere, sabotage, or prevent the ultimate goal of

reunification of the children with the biological parents,

notwithstanding the testimony of Vicky Barron and Evelyn Lamison

to the contrary, which I find lacks credibility.

11. Without question, there were bruises, scratches and bug

bites on L.M., A.M., and A.C. during their stay at Respondent's

foster home. Some of these scratches and bruises occurred in and

around Respondent's home, some of them occurred at the Busy Bee

Preschool.

12. On at least one occasion (March 12, 1998) A.C. fell

while in the doctor's office and bruised his face. This bruise

was noted in the Busy Bee Preschool notes, as were other

scratches and bruises to the children received at home or at the

Busy Bee Preschool. The incident of March 12, 1998, was

documented by the doctor's office. In fact, it became the basis

of an abuse report filed against Respondent which was determined

to be unfounded. This alleged abuse was not reported until

June 4, 1998. There is no evidence to support the allegation

that Respondent told Desiree Smith that the bruise to A.C.'s face

which occurred at the doctor's office occurred at the Busy Bee

Preschool.

13. Another abuse report was filed against Respondent

concerning L.M. and A.M. on March 24, 1998, which was closed as

unfounded.

14. Vicky Barron testified that she was the reporter in

both abuse reports. She also testified that she disagreed with

the Child Protective Investigator's finding that there was no

evidence of abuse. Her disagreement was such that she contacted

the Investigator's supervisor in an attempt to have the finding

reversed.

15. Based on the testimony of the Department personnel and

the Busy Bee Preschool personnel who testified at the hearing, it

is clear that these bruises, scratches, and bug bites were no

more or no less severe than bruises, scratches, and bug bites

experienced by other active children the age of L.M., A.M., and

A.C., notwithstanding the testimony of Vicky Barron and, to some

degree, Evelyn Lamison to the contrary, which I find lacks

credibility.

16. Although there is no allegation concerning the

Respondent's home, it is clear that Respondent kept her home

neat, clean, and safe (although there was some clutter at times).

However, when a matter concerning the children's safety was

brought to Respondent's attention it was corrected.

17. There is insufficient evidence to show that Respondent

failed to provide a healthy and safe environment for L.M., A.M.,

and A.C. and to keep them from harm.

18. While there may have been problems between Kristie

Huggins and Eric Huggins, Kristie Huggins did not anticipate a

separation until April 23, 1998, when Eric Huggins failed to

return home after his trip out of town. Through Patty Fazzino,

Respondent advised the Department's office in Tallahassee,

Florida, of the separation. Subsequently, the Department's

Tallahassee office advised the Lakeland office. Although

Respondent did not directly notify the Department's local foster

care licensing personnel, the Respondent did not intentionally or

unintentionally fail to notify the Department of her separation

from Eric Huggins.

19. Likewise, Respondent did not fail to immediately notify

the Department of any illness or accidents concerning L.M., A.M.,

and A.C. which required department notification.

20. It appears from the testimony of Mary Jordan that

Respondent has completed the necessary hours of training for

relicensure but would need to complete some paper work.

CONCLUSIONS OF LAW

21. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding pursuant to Section 120.57(1), Florida Statutes.

22. Sections 409.175(8)(a) and (b)1.2., Florida Statutes

provide as follows:

(8)(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

children in the home or agency.

2. A violation of the provisions of this

section or of licensing rules promulgated

pursuant to this section.

23. Rule 65-13.009(1)(e)10., Florida Administrative Code

provides as follows:

(e) The goal of the Group Preparation and

Selection Program is to prepare individuals

and families to make an informed decision

about becoming foster or adoptive families.

The decision is made with the department and

is based on the capability and willingness to

take on the 'role' and develop the skills

needed to foster or adopt. Foster and

adoptive families who make good decisions and

grow in their new roles work best with the

department, birth families and others. These

partnerships help children and youth have a

stability and permanence with a family. As

successful foster and adoptive parents you

must be able to:

* * *

(10) Assure health and safety. Provide a

healthy and safe environment for children and

youth and keep them free from harm.

24. Rules 65C-13.010(1)(b)1.c.,(4)(g)(j), Florida

Administrative Code provide as follows:

(1) Responsibilities of the Substitute

Parent to the Child.

* * *

(b) Family Care Activities.

* * *

c. The substitute care parents are expected

to help children in their care to maintain a

sense of their past and a record of their

present.

* * *

(4) Responsibilities of the Substitute Care

Parents to the Department.

* * *

(g) The substitute care parents must notify

the department regarding changes which affect

the life and circumstances of the shelter or

foster family.

* * *

(j) The substitute care parents must notify

the department immediately of illness or

accidents involving the child.

25. In a disciplinary proceeding, the burden is upon the

regulatory agency to establish facts upon which its allegations

of misconduct are based. Balino v. Department of Health and

Rehabilitative Services , 348 So. 2d 349d (Fla. 1st DCA 1977).

The Department must prove the material allegations of the Amended

Notice of Denial by clear and convincing evidence. Department of

Banking and Finance, Division of Securities and Investor

Protection v. Osborne Stern and Company , 670 So. 2d 932 (Fla.

1996); Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987); Section

120.57(1)(h), Florida Statutes. The evidence must not only be

clear but must also be convincing. The Department's evidence in

this case is neither clear nor convincing. However, assuming

arguendo that the level of proof was by a preponderance of the

evidence, the Department has also failed to meet that burden of

proof.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is recommended that the Department of Children and Family

Services enter a final order granting Respondent Kristie

(Huggins) Pfingston her family foster care license.

DONE AND ENTERED this 2nd day of April, 1999, in

Tallahassee, Leon County, Florida.

WILLIAM R. CAVE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 2nd day of April, 1999.

COPIES FURNISHED:

Gregory D. Venz, Agency Clerk

Department of Children and

Family Services

Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

John S. Slye, General Counsel

Department of Children and

Family Services

Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Jack Emory Farley, Esquire

Department of Children and

Family Services

4720 Old Highway 37

Lakeland, Florida 33813-2030

Raymond A. Goodwill, Jr., Esquire

107 Avenue A, Northwest

Post Office Box 2334

Winter Haven, Florida 33883

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

days from the date of this Recommended Order. Any exceptions to

this Recommended Order should be filed with the agency that will

issue the Final Order in this case.