99-002204 Department Of Children And Family Services vs. Cleveland And Harolean Roberts Status: Closed Recommended Order on Tuesday, December 28, 1999.

Summary: Use of corporal punishment by foster mother in violation of Department`s rule on the matter warranted revocation of family foster care license.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Petitioner, )

)

vs. ) Case No. 99-2204

)

CLEVELAND AND HAROLEAN ROBERTS, )

)

Respondents. )

__________________________________)

RECOMMENDED ORDER

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

accordance with Section 120.57(1), Florida Statutes, on

September 21 and 28, 1999, by video teleconference at sites in

Miami and Tallahassee, Florida, before Stuart M. Lerner, a duly-

designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Rosemarie Rinaldi, Esquire

Department of Children and Family Services

401 Northwest Second Avenue, N-1014

Miami, Florida 33128

For Respondents: Cleveland and Harolean Roberts, pro se

1540 Northwest 203rd Street

Miami, Florida 33169

STATEMENT OF THE ISSUE

Whether Respondents' family foster home license should be

revoked for the reasons set forth in the March 24, 1999, letter

that Respondents received from the Department of Children and

Family Services (Department).

PRELIMINARY STATEMENT

By letter dated March 24, 1999, the Department advised

Respondents of its intention to revoke Respondents' family foster

care license. The letter read as follows:

This letter will serve to inform you that

your foster care license will be revoked

effective today for failure to meet minimum

standards for a foster home found in Florida

Administrative Code 65C-13.

Specifically, you have violated the

department's discipline policy. Your foster

children routinely were beaten [o]n the hands

with instruments. The four girls in the

home, when interviewed, consistently

confirmed the allegations.

These allegations were reported to the abuse

hotline and when the PI went out to

investigate, you demanded that he take the

children immediately. He pleaded with you to

keep the children until the next day, but you

insisted on an immediate removal.

The children had to be removed during the

night with only the clothes they were

wearing.

As your license is not being renewed, you

have the right to request an administrative

hearing to be conducted in accordance with

sections 120.569 and 120.57, Florida

Statutes. You have the right to be

represented by counsel or other qualified

representative, to present evidence and

argument, to call and cross-examine

witnesses, and to have subpoena[s] and

subpoena[s] duces tecum issued on your behalf

if a hearing is requested. A hearing request

must be submitted to the Legal Department at

401 N.W. 2nd Avenue, Suite N-1014, Miami,

Florida 33128, within thirty (30) days after

receipt of this letter and must conform to

the requirements of Section 28-107.004,

Florida Administrative Code. . . .

By letter dated April 22, 1999, Respondents requested an

administrative hearing pursuant to Sections 120.569 and 120.57,

Florida Statutes. The Department, on May 14, 1999, referred the

matter to the Division of Administrative Hearings (Division) for

the assignment of a Division Administrative Law Judge to conduct

the hearing Respondents had requested.

As noted above, the hearing was held on September 21 and 28,

1999. Victor Onweazuekwu, Rodly St- Villien, C. P., T. R., Jodi

Forbes, and Ray Gonzalez testified on behalf of the Department.

In addition to presenting the testimony of these witnesses, the

Department offered two exhibits (Petitioner's Exhibits 1 and 2),

both of which were received into evidence. Respondents testified

in their own defense. They also presented the testimony of

Dianatha Regina Dobard Roberts, William Brazil, Cleveland Earl

Roberts III, Dr. Arthur Woodard, Anna Burns, Lucy Toombs, Jean

Soloman Brown, and Bishop Joseph Watson. They presented no

further evidence.

At the close of the evidentiary portion of the hearing on

September 28, 1999, the undersigned, on the record, advised that

proposed recommended orders had to be filed with the Division no

later than 21 days from the date of the filing of the transcript

of the hearing. The hearing Transcript was filed on November 17,

1999.

The Department and Respondents filed their Proposed

Recommended Orders on December 8, 1999, and October 29, 1999,

respectively. These post-hearing submittals have been carefully

considered by the undersigned.

FINDINGS OF FACT

Based upon the evidence adduced at hearing and the record as

a whole, the following findings of fact are made:

1. Respondents are husband and wife. They live in a

comfortable home in a "very nice neighborhood" located in the

Country Club of Miami area in Miami-Dade County and are well

respected members of their community.

2. Mr. Roberts, who, like his wife, is college educated,

worked as a teacher, administrator, and coach in the Miami-Dade

County public school system. He retired in 1992 after 32 years

of exemplary service.

3. The Roberts have four natural children (all of whom are

adults and live outside of their home) and 12 grandchildren.

4. Approximately four years after Mr. Roberts' retirement,

he and his wife decided that they wanted to become family foster

parents. Their decision was motivated, not by monetary

considerations, but by a desire to help children who needed

foster care.

5. The Roberts subsequently applied for, and were granted,

a license to operate a family foster home at their residence.

6. Following the issuance of this license, foster children

C. P., her sister L. P., T. R., and her sister S. R. were placed

in the Roberts' home.

7. The Roberts were loving and caring family foster parents

who treated their foster children like they were their own

children or grandchildren, and provided them with a reasonably

safe and nurturing environment.

8. When the foster children in the Roberts' home

misbehaved, they were disciplined. On occasion, when she

believed circumstances warranted, Mrs. Roberts disciplined the

children (just as she would her own grandchildren under similar

circumstances) by hitting them on their hand with a wooden

switch. There was no intention on her part to physically harm or

injure the children, nor is there any persuasive evidence that

she inflicted any such harm or injury. Mrs. Roberts merely

wanted to get the children's attention and make them realize that

what they did was wrong and must not be repeated.

9. Notwithstanding her good intentions, Mrs. Roberts acted

in a manner that was contrary to the Department's written policy

(of which she was aware and with which she had agreed to comply)

prohibiting family foster parents from using corporal punishment

to discipline the foster children in their family foster home.

10. Being hit on the hand with a wooden switch by

Mrs. Roberts was the only corporal punishment to which C. P., L.

P., T. R., and S. R. were subjected while in the Roberts' care.

At no time did Mrs. Roberts "punch [C. P.] in [the] arm,

scratch[] her on [the] neck, [or] push[] her head into [the]

wall," as was reported on the Department's abuse hotline on

October 15, 1998.

11. Victor Onweazuekwu, a child protective investigator

with the Department, was assigned the task of investigating this

report of alleged abuse (which was reduced to writing by the

Department employee who received the report).

12. He began his investigation by visiting the Roberts'

home at approximately 9:00 p.m. on Sunday, October 18, 1999,

three days after the report was made. Jodi Forbes, C. P.'s and

L. P.'s adoption counselor, joined Mr. Onweazuekwu later that

evening during his visit to the home.

13. After introducing himself to the Roberts and explaining

the purpose of his visit, Mr. Onweazuekwu asked, and was

permitted, to speak with C. P. and her sister L. P.

14. Following his interview of the girls, Mr. Onweazuekwu

"read [to the Roberts] the allegations" that had been made

against Mrs. Roberts. He then asked Mrs. Roberts if these

allegations were true. Mrs. Roberts candidly admitted that she

had disciplined the foster children in her home by hitting them

on the palm of their hands with a "switch that f[ell] from [one

of] the trees in [the Roberts'] back yard," but she (truthfully)

denied punching or scratching C. P. or pushing C. P.'s head

against the wall.

15. The Roberts were upset that Mrs. Roberts had been

falsely accused of having engaged in such abusive conduct, and

they were understandably concerned that, if C. P. (who they

reasonably believed to be deceitful and manipulative) and her

sister L. P. (who they viewed as being easily influenced by

C. P.) remained in their home, they [the Roberts] might be

subjected to additional false accusations by the girls, perhaps

even more serious than those that had already been made against

Mrs. Roberts. Therefore, despite the pleas of Mr. Onweazuekwu

and Ms. Forbes that C. P. and L. P. be allowed to remain in the

Roberts' home overnight, the Roberts insisted that the two girls

be removed that evening.

16. When Ms. Forbes left the Roberts home that evening, she

took C. P. and L. P. with her and subsequently placed them in

another family foster home.

17. The girls departed the Roberts' home with only the

clothes that they were wearing that evening. The following day,

Ms. Forbes telephoned Mrs. Roberts and made arrangements to pick

up the remainder of the girls' belongings. Later that day,

Ms. Forbes paid a visit to the Roberts' home and asked Mrs.

Roberts for the girls' clothes. Mrs. Roberts initially declined,

stating that she thought that Ms. Forbes would be picking up the

clothes the following day. Ms. Forbes then asked Mrs. Roberts

for at least "one outfit so that [Ms. Forbes] could send the

girls to school the next day." Mrs. Roberts responded to this

request by giving Ms. Forbes "most of [the girls'] clothes."

18. Two days later, C. P. and her new family foster parent

came to the Roberts' home and picked up the rest of C. P.'s and

L. P.'s belongings.

19. Mr. Onweazuekwu, following his visit to the Roberts'

home on October 18, 1998, requested the University of Miami,

School of Medicine's Child Protection Team ( CPT) to conduct

psychological evaluations of C. P., L. P., T. R., and S. R. The

CPT conducted these psychological evaluations as requested and,

on or about January 14, 1999, submitted a report to

Mr. Onweazuekwu detailing the findings that were made. The

report contained the following recommendation:

CPT believes that DCF [the Department] should

revoke the Roberts' foster parents license

since they are clearly using not only

corporal punishment with instruments to

discipline children placed in their care, but

also fear and intimidation to control the

children. Alternative placements should be

immediately sought for [T. R.] and [S. R.].

20. Thereafter, the Department removed T. R. and S. R. from

the Roberts' home and, subsequently, initiated proceedings to

revoke the Roberts' family foster home license.

CONCLUSIONS OF LAW

21. With certain exceptions not applicable to the instant

case, "a person, family foster home, or residential child-caring

agency shall not receive a child for continuing full-time care or

custody unless such person, home, or agency has first procured a

license from the [D] epartment to provide such care." Section

409.175(3)(a), Florida Statutes.

22. The nature of such license is described in Section

409.175(2)(f), Florida Statutes, as follows:

"License" means "license" as defined in s.

120.52(9). 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.

23. A license to operate a family foster home, once issued,

may be suspended or revoked by the Department for, among other

reasons, "[a] violation of the provisions of [Section 409.175,

Florida Statutes] or of licensing rules promulgated pursuant to

this section." Section 409.175(8)(b)2, Florida Statutes.

24. The specific authority to promulgate these "licensing

rules" referenced in Section 409.175(8)(b)2, Florida Statutes, is

set forth in subsection (4) of Section 409.175, Florida Statutes,

which provides as follows:

The department shall adopt and amend

licensing rules for family foster homes,

residential child-caring agencies, and child-

placing agencies. The department may also

adopt rules relating to the screening

requirements for summer day camps and summer

24-hour camps. The requirements for

licensure and operation of family foster

homes, residential child-caring agencies, and

child placing agencies shall include:

1. The operation, conduct, and maintenance

of these homes and agencies and the

responsibility which they assume for children

served and the evidence of need for that

service.

2. The provision of food, clothing,

educational opportunities, services,

equipment, and individual supplies to assure

the healthy physical, emotional, and mental

development of the children served.

3. The appropriateness, safety, cleanliness,

and general adequacy of the premises,

including fire prevention and health

standards, to provide for the physical

comfort, care, and well-being of the children

served.

4. The ratio of staff to children required

to provide adequate care and supervision of

the children served and, in the case of

foster homes, the maximum number of children

in the home.

5. The good moral character based upon

screening, education, training, and

experience requirements for personnel.

6. The department may grant exemptions from

disqualification from working with children

or the developmentally disabled as provided

in s. 435.07.

7. The provision of preservice and inservice

training for all foster parents and agency

staff.

8. Satisfactory evidence of financial

ability to provide care for the children in

compliance with licensing requirements.

9. The maintenance by the agency of records

pertaining to admission, progress, health,

and discharge of children served, including

written case plans and reports to the

department.

10. The provision for parental involvement

to encourage preservation and strengthening

of a child's relationship with the family.

11. The transportation safety of children

served.

12. The provisions for safeguarding the

cultural, religious, and ethnic values of a

child.

13. Provisions to safeguard the legal rights

of children served.

(b) In promulgating licensing rules pursuant

to this section, the department may make

distinctions among types of care; numbers of

children served; and the physical, mental,

emotional, and educational needs of the

children to be served by a home or agency.

(c) The department shall not adopt rules

which interfere with the free exercise of

religion or which regulate religious

instruction or teachings in any child-caring

or child-placing home or agency; however,

nothing herein shall be construed to allow

religious instruction or teachings that are

inconsistent with the health, safety, or

well-being of any child; with public

morality; or with the religious freedom of

children, parents, or legal guardians who

place their children in such homes or

agencies.

25. Among the "licensing rules" that the Department has

adopted pursuant to this legislative grant of authority is Rule

65C-13.010, Florida Administrative Code, which provides as

follows with respect to the subject of "discipline":

(1)(a)5. Discipline.

a. The substitute care parents must

discipline children with kindness,

consistency, and understanding, and with the

purpose of helping the child develop

responsibility with self-control.

b. The substitute care parents must help

each child learn that he is responsible for

his behavior by teaching him the natural and

learned consequences of his behaviors.

c. Substitute care parents should use

positive methods of discipline, including the

following:

(I) Reinforcing acceptable behavior.

(II) Verbal disappointment of the child's

behavior.

(III) Loss of privileges.

(IV) Grounding, restricting the child to the

house or yard, or sending the child out of

the room and away from the family activity;

and

(V) Redirecting the child's activity, for

example, if a child is playing with a sharp

object take the object away, and replace it

with a safe toy.

d. The substitute care parents must not

allow children in care to be subjected to

verbal abuse, derogatory remarks about

themselves and family members or threats of

removal from the home.

e. The substitute care parents must not

subject children to cruel, severe,

humiliating or unusual punishment, for

example, to use soap to wash out the mouth,

eating hot sauces or pepper, placing in hot

water, kneeling on stones, etc.

f. The substitute care parents must not use

corporal punishment of any kind.

g. The substitute care parent must not

delegate discipline or permit punishment of a

child by another child or by an adult not

known to the child.

h. The substitute care parents must not

withhold meals, clothing, or shelter as a

form of punishment.

i. The substitute care parents must not

punish children for bed wetting or errors

which occur during the toilet training

process.

j. The substitute care parents must not

resist implementation of the performance

agreement or permanent placement plan as

punishment for misdeeds of a child.

k. The substitute care parents must not deny

a child contact or visits with his family as

punishment.

l. Substitute care parents may assign chores

as the consequence of misbehavior, although

these chores must not involve physical

exercise so excessive as to endanger the

child's health, or so extensive as to impinge

on time set aside for school work, sleeping,

or eating.

m. The substitute must not threaten a child

with removal or with a report to authorities

as punishment for behavior. Threatening the

child with removal plays into the child's

conviction that they are doomed to a series

of placements and rejections. The

counselor's first task is to identify the

child's specific behaviors which are causing

the substitute parent to request the child's

removal. Once problems are identified the

counselor along with the substitute parents

and child assess ways to correct the problem.

If problems are not corrected and the

substitute family continues to request

removal, a conference should be held by the

counselor with the substitute family and

child to discuss the possibility of removal

and replacement. Involving the child in the

planning may help him feel he has some

control of his life.

26. In the instant case, the Department has given

Respondents notice (by letter dated March 24, 1999) of its intent

to revoke Respondents' family foster care license on the ground

that Respondents "have violated the [D] epartment's discipline

policy" by hitting the foster children in their care on the hand

as a disciplinary measure.

27. It is undisputed that Mrs. Roberts disciplined C. P.,

L. P., T. R., and S. R. by hitting them on the palm of their

hands with a wooden switch. In so doing, Mrs. Roberts violated

Rule 65C-13.010(1)(a)5f, Florida Administrative Code, which

prohibits family foster parents from "us[ ing] "corporal

punishment of any kind."

28. While Mrs. Roberts did not intend to, nor cause, any

harm or injury to the children, she did act in blatant disregard

of the Department's policy, codified in Rule 65C-13.010(1)(a)5f,

Florida Administrative Code, prohibiting the use of corporal

punishment. Her conduct raises serious questions concerning her

willingness to comply with licensing requirements with which she

disagrees and therefore warrants the revocation (rather than the

mere suspension) of Respondents' family foster home license

pursuant to Section 409.175(8)(b)2, Florida Statutes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department enter a final order revoking

Respondents' family foster care license pursuant Section

409.175(8)(b)2, Florida Statutes, based on Mrs. Roberts' use of

corporal punishment in violation of Rule 65C-13.010(1)(a)5f,

Florida Administrative Code.

DONE AND ENTERED this 28th day of December, 1999, in

Tallahassee, Leon County, Florida.

___________________________________

STUART M. LERNER

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 28th day of December, 1999

COPIES FURNISHED:

Rosemarie Rinaldi, Esquire

Department of Children and Family Services

401 Northwest Second Avenue, N-1014

Miami, Florida 33128

Cleveland and Harolean Roberts

1540 Northwest 203rd Street

Miami, Florida 33169

Samuel C. Chavers, Acting Agency Clerk

Building 2, Room 204B

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

John S. Slye, General Counsel

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.