00-001732 Felicia Dozier vs. Department Of Children And Family Services Status: Closed Recommended Order on Thursday, November 30, 2000.

Summary: The Department failed to present sufficient evidence to support revocation of Petitioner`s foster home license.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FELICIA DOZIER, )

)

Petitioner, )

)

vs. ) Case No. 00-1732

)

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Respondent. )

____________________________________)

RECOMMENDED ORDER

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

Judge for the Division of Administrative Hearings, held a formal

hearing on November 7, 2000, in Sebring, Florida.

APPEARANCES

For Petitioner: James W. Aaron, Qualified Representative

Aaron's Paralegal Center

819 North Highlands Avenue

Sebring, Florida 33871

For Respondent: Jack Emory Farley, Esquire

Department of Children and

Family Services

4720 Old Highway 37

Lakeland, Florida 33813d-2030

STATEMENT OF THE ISSUE

Should Petitioner's license as a foster parent be revoked,

suspended, or otherwise disciplined?

PRELIMINARY STATEMENT

By letter dated March 6, 2000, the Department of Children

and Family Services (Department) advised Petitioner that by the

authority granted the Department under Section 409.175(8),

Florida Statutes, it was revoking her license (Number 1298-06) as

a foster parent. As grounds therefor the Department alleged that

Respondent: (a) violated Rule 65C-13.010(1)(b)1.a., 3.a., and

5.e., Florida Administrative Code, in that Petitioner allowed a

foster child to live and attend school in soiled dirty clothing

(child had strong urine odor) without providing the school a

change of clothing for the child after several requests; and (b)

violated Rule 65C-13.010(1)(b)5.a.,e., and f., Florida

Administrative Code, in that Petitioner subjected a foster child

in her home to corporal punishment and allowed another adult to

use corporal punishment on the child. By letter dated

March 17, 2000, Petitioner requested a formal hearing under

Chapter 120, Florida Statutes. By letter dated April 6, 2000,

Petitioner denied the allegations contained in the Department's

revocation letter dated March 6, 2000. By Notice dated April 21,

2000, 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

Felicia Dozier, Norberta Tijerina, and Gloria Matthews. The

Department's Exhibit numbered 1 was admitted in evidence.

Petitioner testified in her own behalf and presented the

testimony of Willie Wilson, Jr. and Elizabeth Glenn. Petitioner

did not present any documentary evidence. Rule 65C-13.010,

Florida Administrative Code, was officially recognized.

There was no transcript of this proceeding filed with the

Division. On Petitioner's unopposed ore tenus motion for

extension of time to file proposed recommended orders, the time

for filing proposed recommended orders was extended until

5:00 p.m., November 22, 2000. The parties timely filed their

proposed recommended orders under the extended time frame.

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 issuing and disciplining

foster parent licenses.

2. At all times pertinent to this proceeding, Petitioner

was licensed as a foster parent, having been issued license

Number 1298-06 by the Department.

3. On September 25, 1999, the Department received a report

on the abuse hotline (Abuse Report numbered 1999-122259)

alleging, among other things, that: (a) Petitioner was not

providing sanitary living condition for the foster children under

her care; (b) the house smelled of urine; (c) there were dirty

dishes in the sink, and in the living room, den, and bedrooms;

(d) the house was infested with termites and roaches; (e) the

bathroom had dirty clothes all over the floor and on top of the

shower; (f) the bedrooms were cluttered with clothing, toys and

other articles; (g) the kitchen floor was black with dirt; (h)

M.B.McC., who was approximately 7 years of age, had a terrible

odor, was unclean, and his clothes were dirty; and (i) Petitioner

made M.B.McC. wear wet clothes to teach him not to wet his

clothes. Abuse Report numbered 1999-122259 is not a confirmed

report.

4. There are 6 children, ranging in age from 8 months to 14

years, 8 months, living with Petitioner in her home. There is no

father living in the home.

5. On September 26, 1999, Noberta Tijerina, Child

Protective Investigator (CPI), visited Petitioner's home and

found the home to be relatively clean, although she detected a

faint odor of urine. The CPI also observed some clothes

scattered on the floor of the bedroom but Petitioner explained

that she was in the process of cleaning and preparing to buy a

bedroom suite which she did. The CPI only observed 2 of the

foster children that day and both were clean.

6. The CPI spoke with Petitioner again on

November 18, 1999, to get information as to where the children

were attending school or daycare. Subsequently, the CPI

interviewed M.B.McC. at the daycare. The child stated that he

took a bath at night, sometimes wet his pants at school but did

not have change of clothes, and sometimes got a "whooping" by

Petitioner or her father with a belt but never had bruises. Both

Petitioner and Petitioner's father denied ever whipping the

child. The child also told the CPI that he went to bed at the

same time as the other children, took medication, and got sleepy

at school. Neither M.B.McC nor any of the other children

testified at the hearing. In observing the child, the CPI did

not detect any body odor and did not find the child to be dirty.

In visiting with the staff at both the daycare and school, the

CPI was informed that the child wet his clothes at school but did

not have clean changing of clothes even though the staff had

requested Petitioner to send a clean changing of clothes with the

child. None of the daycare or school staff were identified and

did not testify at the hearing.

7. Subsequent to the her visit with the daycare and school

staff, the CPI made another home visit to Petitioner's home. The

CPI found the home to be clean and the remodeling completed. The

CPI was advised that the child's medication had been reduced in

an attempt to prevent him from falling asleep in school.

8. Although M.B.McC. wet his clothes occasionally, there is

insufficient evidence to show that the child had a "wetting"

problem which required Petitioner to send a clean change of

clothes daily with the child to the daycare or to the school.

Likewise, there is insufficient evidence to show that either the

daycare staff or school staff had made a "standing request" of

Petitioner to send a clean change of clothes for the child daily.

Petitioner testified that when requested of the staff to send a

clean change of clothes for the child she did so without

hesitation. I find Petitioner's testimony to be credible,

notwithstanding the hearsay testimony of the CPI which is

unsupported by any other evidence. Likewise, there is

insufficient evidence to show that Petitioner required the child

to remain in wet clothing to teach him not to wet his clothes,

notwithstanding the hearsay testimony of the CPI to the contrary

which I find is unsupported by the evidence.

9. There is insufficient evidence to show that either

Petitioner or Petitioner's father ever subjected M.B.McC., or any

of the children residing in Petitioner's home, to corporal

punishment, notwithstanding the hearsay testimony by the CPI

concerning M.B.McC's statement to the contrary which I find is

also unsupported by the evidence.

CONCLUSIONS OF LAW

10. 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.

11. The burden of proof is on the party asserting the

affirmative of an issue before an administrative tribunal,

Florida Department of Transportation v. J.W.C. Company, Inc ., 396

So. 2d 778 (Fla. 1st DCA 1981). This proceeding involves the

revocation of Petitioner's foster home license. Normally,

license revocation proceedings are considered penal in nature and

implicate significant property rights. Therefore, the extension

of the clear and convincing evidence standard is warranted.

Department of Banking and Finance, Division of Securities and

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

Section 120.57(1)(h), Florida Statutes. However, a foster home

license is not considered a professional license and does not

create any significant property rights in the recipient.

Therefore, the clear and convincing evidence standard is not

warranted in a revocation proceeding involving a foster home

license. Osborne Stern , supra , 934, 935, and Section

409.175(2)(f), Florida Statutes. Therefore, to meet its burden,

the Department must establish facts upon which its allegations

are based by a preponderance of the evidence. Osborne Stern ,

supra , 934, 935, and Section 120.57(1)(h), Florida Statutes. The

Department argues that the "holders of foster home licenses are

entitled to an administrative review of the Department's adverse

licensing action and the Department's decision must not be

arbitrary or capricious and that the Department must submit 'some

evidence' to the administrative tribunal to support the

revocation of a foster home license." The Department fails to

recognize that this is a de novo proceeding and not an appellant

review. See Wise v. Department of Children and Families , 19 FALR

3341 (Final Order entered January 31, 1997, adopting

Administrative Law Judge J. Lawrence Johnston's discussion of

this issue.)

12. Rules 65C-13.010,(1)(b)1.a., 3.a. ,and 5.a.e.and f.,

Florida Administrative Code, provide as follows:

(1) Responsibilities of the Substitute

parent to the Child.

* * *

(b) Family Care Activities.

1. Daily living tasks

a. The substitute care parent are expected

to provide structure and daily activities

designed to promote the individual physical,

social, intellectual, spiritual, and

emotional development of the children in

their home.

* * *

3. Clothing and Personal Belongings.

a. All children should be provided with

their own clean, well-fitting, attractive

clothing appropriate to their age, sex and

individual needs, in keeping with community

standards and appropriate to the season.

* * *

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.

* * *

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.

13. The Department has alleged that Petitioner's violation

of the above rule is a violation of Section 409.175(8)(b)1.,

Florida Statutes. Sections 409.175(8)(a),and (b)(1)and(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 grounds 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.

14. Other than testimony of the CPI of what she observed at

the first and second home visits with Petitioner, which is

insufficient to prove the Department's allegations, the CPI's

testimony is hearsay and is unsupported by any other credible

evidence. The Department has failed to meet its burden to show

by a preponderance of the evidence or any lesser evidence

standard that Petitioner violated the rules and statutes as set

out in the letter of revocation and thereby not suitable for

licensure as a foster parent.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is recommended that the Department enter a final order

dismissing the allegations against Petitioner set out in the

Department's letter of revocation dated March 6, 2000, and

reinstate Petitioner's foster home license.

DONE AND ENTERED this 30th of November, 2000, 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 30th day of November, 2000.

COPIES FURNISHED:

James Aaron

Aaron's Paralegal Center

819 North Highlands Avenue

Post Office Box 3351

Sebring, Florida 33871

Jack Emory Farley, Esquire

Department of Children and

Family Services

4720 Old Highway 37

Lakeland, Florida 33813-2030

Virginia A. Daire, Agency Clerk

Department of Children and

Family Services

1317 Winewood Boulevard

Building 2, Room 204B

Tallahassee, Florida 32399-0700

Josie Tomayo, 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 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.