99-002202 Gwendolyn And William Parker vs. Department Of Children And Family Services Status: Closed Recommended Order on Friday, October 1, 1999.

Summary: Petitioners failed to qualify for a foster home license due to battery convictions of the wife.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GWENDOLYN and WILLIAM PARKER, )

)

Petitioners, )

)

vs. ) Case No. 99-2202

)

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

before Larry J. Sartin, a duly-designated Administrative Law

Judge of the Division of Administrative Hearings, on August 11,

1999, in Monticello, Florida.

APPEARANCES

For Petitioners: Bria n T. Hayes, Esquire

Brian T. Hayes, P.A.

245 East Washington Street

Monticello, Florida 32344

For Respondent: John R. Perry

Assistant District Legal Counsel

Department of Children and

Family Services

District 2 Legal Office

26 39 North Monroe Street, Suite 252A

Tallahassee, Florida 32399-2949

STATEMENT OF THE ISSUE

The issue in this case is whether Petitioners, Gwendolyn and

William Parker, should be granted a license to operate a family

foster home pursuant to the provisions of Section 409.175,

Florida Statutes (1997).

PRELIMINARY STATEMENT

On or about January 19, 1999, Petitioners, Gwendolyn and

William Parker, filed an application with Respondent, the

Department of Children and Family Services, for a license as a

family foster home pursuant to Section 409.175, Florida Statutes

(1997). By letter dated April 12, 1999, Respondent notified

Petitioners that their application was denied "based upon the

confirmed abuse report on Mrs. Parker for excessive corporal

punishment and bruises and welts and the history of arrest for

battery against Mrs. Parker, the last arrest being as recent as

March 23, 1996."

By letter dated April 29, 1999, Petitioners requested a

formal hearing to contest Respondent's denial of their

application. On May 14, 1999, the request for hearing was filed

by Notice with the Division of Administrative Hearings. The

request was designated Case No. 99-2202 and assigned to the

undersigned.

At the formal hearing of this case Petitioners testified on

their own behalf and presented the testimony of Pasca Anderson

and Tracey Cotton. Petitioners offered 2 exhibits. Both were

accepted into evidence. Petitioners also requested that official

recognition of the definition of "battery" found in Section

784.03, Florida Statutes (1997), be taken. The request was

granted.

Respondent presented the testimony of Monica Miller, Vickie

McCrary, and Matthew Duffy, Jr. Mr. Duffy's testimony was taken

by telephone. Respondent offered 2 exhibits. Both were accepted

into evidence.

No transcript of the hearing was ordered. Both parties were

informed of their right to file proposed orders on or before

August 23, 1999. Respondent filed a Proposed Recommended Order

on August 23, 1999. Petitioners filed a Proposed Recommended

Order on August 30, 1999. Although Petitioners' Proposed

Recommended Order was filed late, it does not appear that

Respondent will be prejudiced by consideration of the late-filed

Proposed Recommended Order. The proposed orders have been fully

considered in entering this Recommended Order.

FINDINGS OF FACT

1. Petitioners, Gwendolyn and William Parker, are husband

and wife. The Parkers have been married since October 9, 1989.

The Parkers have three children. Mr. Parker is the father of one

of the children. The Parkers reside in Jefferson County,

Florida, in a three bedroom, two bath home they own.

2. Mr. Parker is employed as a case officer at Greenwood

Hills Academy, Greenville, Florida. Mr. Parker supervises

youthful offenders under the Juvenile Justice Act.

3. Respondent, the Department of Children and Family

Services (hereinafter referred to as the "Department"), is an

agency of the State of Florida. The Department is charged with,

among other things, the authority and duty to grant licenses for

family foster homes pursuant to Section 409.175, Florida Statutes

(1997).

4. On or about January 19, 1999, Mr. and Ms. Parker

submitted an application to the Department for licensure as a

family foster home pursuant to Section 409.175, Florida Statutes

(1997).

5. Mr. and Ms. Parker successfully completed a course for

foster parents.

6. By letter dated April 12, 1999, the Department notified

Mr. and Ms. Parker that their application was denied "based upon

the confirmed abuse report on Mrs. Parker for excessive corporal

punishment and bruises and welts and the history of arrest for

battery against Mrs. Parker, the last arrest being as recent as

March 23, 1996."

7. By letter dated April 29, 1999, Mr. and Ms. Parker

requested a formal hearing to contest the Department's denial of

their application.

8. Ms. Parker was adjudicated guilty of battery on

October 2, 1987. She was sentenced to six months' unsupervised

probation. Ms. Parker was 22 years of age when this incident

took place. The battery charge arose out of a fight between Ms.

Parker, who was single at the time, and another woman of

approximately the same age as Ms. Parker. It has been

approximately 12 years since this incident took place.

9. Ms. Parker pled guilty to, and was adjudicated guilty

of, battery a second time on January 20, 1989. Ms. Parker was

fined. Ms. Parker was 23 years of age when this incident took

place. It has been over ten years since this incident took

place.

10. Also during 1989, Ms. Parker was investigated by the

Department of Health and Rehabilitative Services for excessive

corporal punishment. Ms. Parker admitted hitting her then five-

year-old son with a belt. The punishment left bruises on her

son's arm. Although it was determined that the incident was an

isolated one, the report was classified as a confirmed report of

abuse. This incident took place over ten years ago. No criminal

charges arose out of this incident and Ms. Parker's son remained

in her custody.

11. On February 21, 1996, Ms. Parker took her son and

teenage daughter to school. After dropping them off, an

altercation between her daughter and several other girls took

place. Ms. Parker and several female students shouted at each

other, at times trading obscenities. During the incident, Ms.

Parker took hold of the arm of one of the students. No harm was

caused to the student.

12. Ms. Parker was charged with three counts of battery as

a result of the February 21, 1996, incident. Ms. Parker was

tried and found guilty of one count of battery related to

Ms. Parker's taking hold of the arm of one of the students.

Adjudication of guilt was withheld and Ms. Parker was placed on

six months' non-reporting probation. Ms. Parker was found not

guilty of the other two counts of battery.

13. Applicants for family foster home licenses must

demonstrate self control and the ability to handle stressful

situations with minimal anger and without violence. Children

placed in foster care normally are taken out of homes where they

have been subjected to physical, emotional, and/or sexual abuse

or neglect. They often display behavior that tries the patience

of their caregivers. Extreme care must be exercised in placing

these children to ensure that they are not further abused.

CONCLUSIONS OF LAW

14. The Division of Administrative Hearings has

jurisdiction of the parties to, and the subject matter of, this

proceeding. Section 120.57, Florida Statutes (1997).

15. Section 409.175(3)(a), Florida Statutes (1997),

provides that no child over whom the Department has authority may

be placed with any person or family foster home until that person

or family foster home has "first procured a license from the

department to provide such care."

16. The term "license" is defined in Section 409.175(2)(f),

Florida Statutes (1997), in relevant part, as follows:

. . . . A License under this act is as 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.

17. Section 409.175(4)(a), Florida Statutes, requires that

the Department adopt rules setting out the requirements for

licensure and operation of family foster homes. Pursuant to this

authority, the Department has adopted Rule 65B-6.009(5)(b),

Florida Administrative Code, requiring that foster care providers

"demonstrate ability to perform the duties required."

18. Of the highest and utmost importance is the duty of

foster home providers to provide for the protection and well-

being of children placed in family foster homes.

19. While the offenses which Ms. Parker has been found to

have committed in 1987 and 1989 did not involve any serious

injury and took place at least ten years ago, the incident in

1996 is a relatively recent incident and involved a teenage

student. While there was no injury involved, Ms. Parker acted

inappropriately when she touched the student and acted with

anger.

20. All of the incidents which Ms. Parker has been involved

in, including the abuse report from 1989, involve a lack of self-

control. The incidents are of sufficient consequence to raise

doubt about the appropriateness of placing children who have been

taken out of abusive and/or neglectful homes under Ms. Parker's

care.

21. A post-hearing exhibit was filed on behalf of the

Parkers. The exhibit, which has been marked as Petitioners'

Exhibit 3, purportedly shows the criminal history of homes which

received family foster home licenses. It has not been

represented whether the Department has any objection to the

exhibit. Regardless, the exhibit is hearsay. It is also

insufficient to prove that the Department has issued licenses to

individuals under circumstances similar to the circumstances of

this case.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered by the Department

of Children and Family Services denying the application for

licensure as a family foster home filed by Gwendolyn and William

Parker.

DONE AND ENTERED this 1st day of October, 1999, in

Tallahassee, Leon County, Florida.

___________________________________

LARRY J. SARTIN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 3239 9-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1st day of October, 1999.

COPIES FURNISHED:

Brian T. Hayes, Esquire

Brian T. Hayes, P.A.

245 East Washington Street

Monticello, Florida 32344

John R. Perry

Assistant District Legal Counsel

Department of Children and

Family Services

District 2 Legal Office

2639 North Monroe Street, Suite 252A

Tallahassee, Florida 32399-2949

Gregory D. Venz, Agency Clerk

Department of Children and

Family Services

Building 2, Room 204B

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

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.