00-004347 Department Of Children And Family Services vs. Stanley Thibodeau Status: Closed Recommended Order on Wednesday, March 21, 2001.

Summary: Foster care license revoked. Agency alleged that information voluntarily given by foster care parent of his life story 20 years ago during adoption application home visit was reason for revocation. Recommend license reinstatement.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Petitioner, )

vs. ) Case No. 00-4347

)

STANLEY THIBODEAU, )

)

Respondent. )

______________________________)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative

Hearings, by Administrative Law Judge, Fred L. Buckine, held a

formal hearing in the above-styled case on February 14, 2001, in

Pinellas County, Largo, Florida.

APPEARANCES

For Petiti oner : Keith J. Ganobsik, Esquire

Department of Children and

Family Services

11351 Ulmerton Road, Suite 100

Largo, Florida 33778-1630

For Respondent : Thomas E. Todd, Esquire

Thomas E. Todd, P.A.

7617 Little Road

New Port Richey, Florida 34654-5525

STATEMENT OF THE ISSUE

T he issue is this case is whether revocation of

Respondent's Foster Care license privilege for his past and

present conduct, determined by the Department of Children and

Family Services (hereinafter Agency) to be inappropriate, was

proper under Section 409.175, Florida Statutes.

PRELIMINARY STATEMENT

B y letter dated August 18, 2000, Petitioner informed

Respondent, Stanley Thibodeau (hereinafter "Thibodeau"), that

his foster care home license privilege had been revoked. The

revocation letter, in pertinent part, stated:

This letter is to inform you that your

foster home license is hereby revoked.

This action is taken as a result of

information divulged by you to the

Department, which had not been shared

with licensing counselors during your

training classes and subsequent home

study. The revelation established that

you left the State of Washington with

an unrelated minor child without

parental consent and obtained false

identification for him and yourself.

[Y ]ou supplied written documentation of

business enterprises involving fantasy

videos that you considered and

discussed with in-home therapists.

The decision to revoke involves the

inappropriateness of your past and

current behaviors as it related to the

responsibilities of a foster parent.

(Emphasis added)

Thibodeau challenged the specific content and innuendoes

contained in the revocation letter and on September 7, 2000,

filed for a Formal Hearing. On October 24, 2000, the Agency

referred the matter to the Division of Administrative Hearings

for assignment of an Administrative Law Judge to conduct a

Formal Hearing. The hearing was scheduled to be held on

January 25, 2001, but was continued until February 14, 2001,

upon granting of Petitioner's Motion for Continuance.

At the final hearing, the Agency presented the testimony of

six witnesses and submitted two exhibits, which were received

into evidence. Mr. Thibodeau testified on his own behalf,

presented testimony of seven additional witnesses, and submitted

four exhibits, which were received into evidence.

Mr. Thibodeau's composite exhibit number four, three videotapes,

was received into evidence over objection of the Agency.

The Agency did not order a transcript of the proceeding.

The Proposed Recommended Orders submitted by both Petitioner and

Respondent were taken into consideration.

FINDINGS OF FACT

1. Under Section 409.175, Florida Statutes, the Department

of Children and Family Services is the State Agency responsible

for evaluating, qualifying, licensing, and regulating family

foster care homes.

2. On or about November 5, 1999, the Agency, after

Mr. Thibodeau's successful completion of the Agency's evaluation

and qualifying procedures, determined Mr. Thibodeau to be of

good moral character. At all times material to the application

process, Mr. Thibodeau answered completely and truthfully each

question contained on each standard application form and other

documents presented to him by the Agency during the foster care

home application process. Based upon its determination, the

Agency granted Provisional Certificate of License,

No. 1999-110-002, for Substitute Family Home care privilege to

Mr. Thibodeau. Thereafter, the Agency placed three minor

children in Mr. Thibodeau's home: two teenaged brothers, David

M. and Daniel M., and seven-year-old Steve.

3. After an unspecified period of time together, bonding

began to develop between the brothers, Daniel and David, and

Mr. Thibodeau. As a result of a mutual agreement, Mr. Thibodeau

submitted an adoption application to the Agency to become the

adoptive parent of the brothers David M. and Daniel M. At all

times pertinent hereto, Mr. Thibodeau answered completely and

truthfully each question contained in the standard application

forms and other documents presented to him by the Agency during

the adoption application process.

4. Ms. Georgia Alezras, trainer for the Model Approach to

Partnership in Parenting (MAPP) classes and Mr. Kelvin Birdsell,

family therapist and continuity specialist, made a home-study

visit to the Thibodeau residence at some time between early July

and August 15, 2000. Mr. Birdsell testified that he confined

his conversations to the brothers, David M. and

Daniel M. during the visit. Mr. Birdsell further testified that

his conversations with the brothers were separate and away from

the presence and hearing of Ms. A lezras and Mr. Thibodeau, who

conversed privately.

5. On July 26, 2000, after Mr. Thibodeau submitted his

adoption application, and after the home study visit by

Ms. Alezras, the Agency received a confidential telephonic abuse

report, Petitioner's exhibit number one. 1 The abuse report

contains an interpolation of the private conversation between

Ms. Alezras and Mr. Thibodeau during the earlier home-study

visit.

6. Ms. Carolyn Olsen, Family Counselor Supervisor,

testified that Ms. Georgia Alezras reported her private

conversation with Mr. Thibodeau to her Agency supervisors.

The Agency's interpolation of the Alezras-Thibodeau conversation

formed the factual allegations contained in the Agency's

August 18, 2000, revocation letter.

7. Sergeant Hagerty, Pasco County Sheriff's Office,

testified that she and Sergeant O'Conner investigated the abuse

allegations, consisting solely of the Agency's interpolation of

Ms. Alezras' earlier and prior conversation with Mr. Thibodeau,

by checking with authorities in Washington and checking with the

National Criminal Information Center (NCIC) with negative

results. The removal of the children from Mr. Thibodeau's home

was based upon a joint decision to be safe and take a

preventative approach in this matter.

8. Petitioner's exhibit number two, a composite of eight

letters, contained a "Closing of Foster Home For Children"

report form, with a "foster home closing date" of August 18,

2000, and the caseworker and supervisor's signature on the date

of August 22, 2000. The report, under "reason for closing"

heading, contains the following comments:

[H ]is license was revoked because he

recently divulged information about his

past, that, had we known these facts

prior to licensing, would have

disqualified him to act as a foster

parent---namely, he stated that some

years ago he left the state of

Washington with an unrelated male child

without parental or state permission

and lived with him for years under

false identification.

9. Ms. Georgia Alezras did not testify. Mr. Thibodeau's

testimony is the only evidence of the private conversation with

Ms. Alezras. Mr. Thibodeau's recollection of his responses to

Ms. Alezras' questions was:

[I ]n 1975 he moved to the State of

Washington; in 1976-77 he met Daniel

L.; in 1976-77 he left the State of

Washington and moved with Daniel to

Pennsylvania where Daniel enrolled in

school using his Washington school

records; Daniel's mother visited them

in Pennsylvania and maintained contact

by telephone; Daniel, at age nineteen

returned to Washington. He used a

friend's birth certificate to secure

his Pennsylvania driver's license. His

video business 2 considerations were

subsequently dismissed and he advised

the Agency of his decision by letter to

his caseworker.

10. Ms. Carolyn Olsen, Agency Representative, testified

that one member of every MAPP team always asks a general,

catchall question of every [foster care parent] applicant: "Is

there anything else we need to know [about you], please tell us,

[because] we will probably find out?" Ms. Olsen's candor and

purpose comes into question on this point. She was not present

during the Alezras-Thibodeau private conversation. Ms. Olsen

does not know the identity of the team member who would have

asked her catchall question nor does she know of a rule,

guideline, or checklist requiring that specific question to be

asked of every foster care license applicant, and there was no

corroboration of her testimony.

11. The Agency presented no evidence in support of its

allegation that during the application process, its failure to

inquire and Mr. Thibodeau's failure to disclose activities 20

years earlier in his life resulted from negligence or from the

malicious intent of Mr. Thibodeau , and materially affect the

health and safety of the minor children in his foster care.

12. The Agency has failed to establish that Mr. Thibodeau

left Washington with an unrelated minor child without parental

consent and obtained false identification for the child. While

it is true that Mr. Thibodeau "left Washington with an unrelated

minor child," the Agency produced no evidence that his leaving

was "without [minor child's] parental consent." Agency's

investigators were unable to make contact with either the child

or his mother. No investigation was made of the State of

Washington's Motor Vehicle Department. No contact was made with

the Pennsylvania authorities. Assuming argunendo, the Agency

intended upon establishing this element by "an admission by

Mr. Thibodeau"; they presented no evidence Mr. Thibodeau, in

fact, uttered words to the effect of or acknowledged the comment

"without parental consent."

13. The undis puted evidence is Mr. Thibodeau's testimony

that the minor child's mother not only approved of the child

leaving Washington with him, but she also visited them in

Pennsylvania and had telephone conversations with her child

during his stay there. On this issue the Agency failed to carry

its burden by clear and convincing evidence.

14. Mr. Thibodeau admitted his use of another's birth

certificate to secure a Pennsylvania driver's license more than

20 years ago. Since that time, Mr. Thibodeau's conduct, foster

care parenting skills, helping problem young boys, and good

moral conduct has been, as testified by the several witnesses,

exemplary.

CONCLUSIONS OF LAW

15. The Division of Administrative Hearing has

jurisdiction over the parties and the subject matter of this

proceeding pursuant to Section 120.57, Florida Statutes.

16. Petitioner is the state agency responsible for

evaluating, qualifying, licensing and regulating Foster Care

Parents and Foster Care Homes, under Section 409.175, Florida

Statutes, which provides in pertinent part:

(1)(a ) The purpose of this

section is to protect the health,

safety, and well-being of all

children in the state who are

cared for by family foster homes,

residential child-caring agencies,

and child-placing agencies by

providing for the establishment of

licensing requirements for such

homes and agencies and providing

procedures to determine adherence

to these requirements.

* * *

(2)(e) "Family foster home" means

a private residence in which

children who are unattended by a

parent or legal guardian are

provided 24-hour care. Such homes

include emergency shelter family

homes, family foster group homes,

and specialized foster homes for

children with special needs. A

person who cares for a child of a

friend for a period not to exceed

90 days, a relative who cares for

a child and does not receive

reimbursement for such care from

the state or federal government,

or an adoptive home which has been

approved by the department or by a

licensed child-placing agency for

children placed for adoption is

not considered a family foster

home.

* * *

(f) "License" means "license" as

defined in Section 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 entitlement.

This privilege must guide the

finder of fact or trier of law at

any administrative proceeding or

court action initiated by the

department.

* * *

(k) "Screening" means the act of

assessing the background of

personnel and includes, but is not

limited to, employment history

checks as provided in chapter 435,

using the level 2 standards for

screening set forth in that

chapter.

* * *

(5)(b ) Upon application, the

department shall conduct a

licensing study based on its

licensing rules; shall inspect the

home or the agency and the

records, including financial

records, of the agency; and shall

interview the applicant. The

department may authorize a

licensed child-placing agency to

conduct the licensing study of a

family foster home to be used

exclusively by that agency and to

verify to the department that the

home meets the licensing

requirements established by the

department.

* * *

(7)(b ) The department shall

investigate complaints to

determine whether a home or agency

is meeting the licensure

requirements. The department

shall advise the home or agency of

the complaint and shall provide a

written report of the results of

the investigation to the licensee.

(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.

(3 ) Noncompliance with the

requirements for good moral

character as specified in

paragraph (4)(a).

17. This case involves the revocation of Mr. Thibodeau's

family foster care license privilege. The party asserting the

affirmative of an issue before an administrative tribunal has

the burden of proof. Florida Department of Transportation v.

J.W.C. Company, Inc. , 396 So.2d 778 (Fla. 1st DCA 1981).

18. The Department is required to prove the allegations

contained in its complaint (August 18, 2000, revocation letter)

by clear and convincing evidence. See Ferris v. Turlington , 510

So. 2d 292 (Fla. 1987). In this case, revocation of foster care

license, the Agency has the burden of proving the allegations

upon which its actions were based. See Department of Banking

and Finance v. Osborne Stern and Co. , 670 So. 2d 932 (Fla.

1996); Section 120.57(1)(j), Florida Statutes. ("Finding of

fact shall be based upon a preponderance of the evidence, except

in penal or licensure disciplinary proceedings or except as

otherwise provided by statute, and shall be based exclusively on

the evidence of record and on matters officially recognized.")

In this case the agency failed to meet its burden by the clear

and convincing standard.

19. Based upon the record, it is found as fact that the

Agency's position in this matter is that its prior evaluation,

determination, and qualifying approval of Mr. Thibodeau's foster

care application would not have been granted had he told them

during the process, without being asked, of his initial

encounter of rendering help to a troubled youth more than 20

years earlier. By not doing so, the Agency assumed

Mr. Thibodeau violated their application process [past conduct],

thus rendering the present revocation appropriate to address the

past wrong. It is a basic tenet of common law pleading that

"the allegata and probata must correspond and agree." See Rose

v. State , 507 So. 2d 630 (Fla. 5th DCA 1987).

20. The Agency's presentation of Ms. Olsen's rebuttal

testimony that someone on the MAPP team "always" asks a general

catchall question reveals the internal weakness of its position

and falls short of the intended mark. The credible evidence

shows that at all times material hereto, Mr. Thibodeau complied

with every request and completed every application document

provided him, attended every application class session, and

answered truthfully and completely every question asked of him.

The Agency failed to prove by clear and convincing evidence that

Mr. Thibodeau's conduct was an "intentional" or "negligent" act

that materially affected the health or safety of children in his

foster home.

21. The evidence in the record does not support the

allegation of "leaving a state with an unrelated minor child

without parental consent." While it is true that Mr. Thibodeau

"left a state with an unrelated minor child," the Agency

produced no evidence that his leaving was "without [minor

child's] parental consent." No contact was made with either the

child or his mother. No investigation was made of the State of

Pennsylvania school system. No investigation was made of the

State of Washington's Motor Vehicle Department for the child's

location. The Agency offered not one scintilla of evidence in

support of the "without parental consent" element of its

allegation. Assuming arguendo, the Agency intended upon

establishing this allegation by "an admission by Mr. Thibodeau";

they presented no evidence Mr. Thibodeau, in fact, uttered or

acknowledged those exact words, "without parental consent."

22. The undisputed evidence is Mr. Thibodeau's testimony

that the minor child's mother not only approved of the child

leaving the State of Washington with him, but she also visited

them in Pennsylvania and had telephone conversations with the

child during his stay there. On this issue the Agency failed to

carry its burden of proof by the clear and convincing evidence

standard.

23. Turning to the next allegation that Mr. Thibodeau

"obtained false identification for [the minor child] him."

Again, the Agency presented not one scintilla of evidence in

support of this allegation. Reliance upon admissions made by

Mr. Thibodeau is here again misplaced. The person to whom such

admissions, if any, were made did not testify, and there was no

corroboration of the contents of Mr. Thibodeau's alleged

"revelations" made to Ms. Alezras. cf. Florida State Board of

Dental Examiners v. Graham , 187 So. 2d 104 (Fla. 3rd DCA 1966).

The only evidence is Mr. Thibodeau's testimony that the minor

child enrolled in school in Pennsylvania using his State of

Washington school records for identification. On this issue the

Agency has failed to carry its burden of proof by the clear and

convincing evidence standard.

24. The Agency's next allegation, "business enterprises

involving fantasy videos that you considered and discussed with

in-home therapist," is unsupported by evidence of what

constitutes "inappropriateness." While it is true that

Mr. Thibodeau did "consider and discuss fantasy videos business

with the therapists," it is likewise true that he subsequently

wrote a letter to his caseworker informing the Agency that he

had discarded that idea. First, the Agency offered no evidence

as to the content of the videos that were determined

"inappropriate." Second, Subsection 409.175(8)(b )1, Florida

Statutes, does not define "inappropriate" and no evidence was

offered by which the undersigned can assess the Agency's

interpretation of an undefined term. Assuming arguendo, the

content of the videotapes were "inappropriate" for some

purposes, the Agency offered no evidence to show Thibodeau's

consideration and discussion of a fantasy video business

enterprise materially affected the safety and health of the

children in the foster care home. On this issue the Agency

failed to carry its burden of proof by the clear and convincing

evidence standard.

25. The next allegation, "the inappropriateness of your

past and current behavior," is without foundation in fact. The

record contains no evidence offered by any Agency witness

regarding specific words uttered by or specific moral conduct

engaged in by Mr. Thibodeau the Agency determined "past" and

"inappropriate" or "current" and "inappropriate." The only

evidence of record on this issue is Mr. Thibodeau's testimony

that he offered Brenda Allen an opportunity to view the videos

he and the brothers, David M. and Daniel M., produced and

Ms. Allen refused to do so. Should one assume that the three

videos contained "inappropriate" subject matter and content, the

Agency offered no evidence to demonstrate how such

"inappropriateness" materially affected the safety and health of

the three children in his foster care home . On this issue the

Agency failed to carry its burden of proof by the clear and

convincing evidence standard.

26. Mr. Thibodeau admitted his use of another's birth

certificate to secure a Pennsylvania driver's license more than

20 years ago. The record is void of evidence to demonstrate how

the morality of that single incident materially affected the

safety and health of the three children in his foster care home.

27. While a foster care license is a privilege and the

revocation of that privilege is discretionary, exercise of that

discretion should not be without some basis in fact and in law.

Subsection 409.175(8)(b )1, Florida Statutes, grants the Agency

the discretion to select those matters within its considerable

expertise to be "inappropriate." After exercising its

discretion, the Subsection 8(b)(1) of the Statute imposes the

requirement that the Agency shall demonstrate that its

discretionary selection had a "material" effect on the health

and safety of the children in the foster care home. The Agency

presented no clear and convincing evidence that Mr. Thibodeau's

past and present conduct "materially" affected the safety and

health of the children in the foster care home, and failed to

carry its burden of proof.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that the Department of Children and Family

Services enter a final order reinstating to Stanley Thibodeau

his foster care home license privilege.

DONE AND ENTERED 21st day of March, 2001, in Tallahassee,

Leon County, Florida.

___________________________________

FRED L. BUCKINE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488- 9675 SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with t he Clerk of the

Division of Administrative Hearings

this 21st day of March, 2001.

ENDNOTES

1/ Petitioner's exhibit number 1. This report contains

hearsay's statements, assumptions, conclusions and unsupported

allegations from persons known and unknown. None of the

allegations contained therein were substantiated after

investigation by law enforcement. Accordingly it was given no

evidentiary consideration. As a basis for removal of the

children it served well. As a basis for revocation it did not.

2/ All parties viewed Respondent's exhibit number 4, the three

videotapes, at the hearing and were given an option to respond

in their respective Proposed Recommend Orders. Based upon the

undersigned's viewing, there was nothing that could remotely be

considered "inappropriate" about the content under the

reasonable standard. They were as Mr. Thibodeau described them.

COPIES FURNISHED :

Keith J. Ganobsik, Esquire

Department of Children and

Family Services

11351 Ulmerton Road, Suite 100

Largo, Florida 33778-1630

Thomas E. Todd, Esquire

Thomas E. Todd, P.A.

7617 Little Road

New Port Richey, Florida 34654-5525

Josie Tomayo, General Counsel

Department of Children and

Family Services

Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

V irginia Daire, Agency Clerk

Department of Children and

Family Services

Building 2, Room 204B

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.