00-000096 Department Of Children And Family Services vs. Bonnie And Steven Price, Sr. Status: Closed Recommended Order on Monday, June 19, 2000.

Summary: Foster parents who allowed their four and nine year-old foster children to swim in the family swimming pool unattended by an adult were guilty of neglect, warranting the revocation of their license after the near drowning of the four year-old child.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Petitioner, )

)

vs. ) Case No. 00-0096

)

BONNIE and STEVEN PRICE, JR., )

)

Respondents. )

______________________________)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division of

Administrative Hearings, conducted the final hearing in Tampa,

Florida, on April 6 and May 12, 2000.

APPEARANCES

For Petitioner: Raymond R. Deckert

District Legal Counsel

Department of Children

and Family Services

4000 West Martin Luther

King, Jr., Boulevard

Room 500

Tampa, Florida 33614

For Respondent: Bonnie and Steven Price, pro se

Post Office Box 1015

Mango, Florida 33550

STATEMENT OF THE ISSUE

The issue is whether Petitioner should revoke Respondents'

foster parent license.

PRELIMINARY STATEMENT

By undated Administrative Complaint, Petitioner alleged that

Respondents failed to supervise a four-year-old child placed in

their care while she was swimming in Respondents' pool and the

child nearly drowned. The Administrative Complaint alleges that

this incident constitutes a "negligent act materially affected

the health and safety of children in the home," in violation of

Section 409.175(8)(b)1 and 2, Florida Statutes, and Rule

65C -13.011(12)(e)2, Florida Administrative Code.

The Administrative Complaint also alleges that Respondents

failed to inform Petitioner that their adult son was living in

their home and serving as a sitter for foster children at the

home while the son was under house arrest for burglary and other

felonies, in violation of Section 409.175(8)(b)3, Florida

Statutes, and Rules 65C-13.011(9) and 65C-13.009(6)(b), Florida

Administrative Code.

At the hearing, Petitioner c alled seven witnesses and

offered into evidence five exhibits. Respondent called four

witnesses and offered into evidence three exhibits. All exhibits

were admitted except Petitioner Exhibit 2 and Respondent Exhibits

2 and 3.

The parties did not order a transcript.

FINDINGS OF FACT

1. Petitioner first licensed Respondents as foster parents

on December 22, 1993. Initially, they were licensed to care for

their two nephews and a niece. On May 22, 1996, Petitioner

relicensed Respondents so that they could provide foster care to

children unrelated to them. The license provided that they could

provide foster care to no more than four children.

2. During their tenure as foster parents, Respondents

demonstrated average competence. At the same time, Petitioner's

need for foster parents has become more urgent. In this

district, the number of foster children placed by Petitioner has

increased from 250 children to 1200 children in the past 18

years.

3. The combination of Respondents' competence and

Petitioner's urgent need for foster parents resulted in ten

foster children living in Respondents' six-bedroom home at the

time of the incident. All of these foster children had been

placed in Respondents' home by Petitioner.

4. Respondents' home had a swimming pool in a screened

enclosure attached to the house. A door from the kitchen led to

the swimming pool.

5. On September 3, 1999, five of the foster children were

in the swimming pool for several hours during the afternoon.

Three of the children were nine years old, and two were four

years old. One of the four-year olds was Cheyenne. Cheyenne

could not swim and typically wore inflated floaters over each arm

to help her remain afloat in the water.

6. Neither Respondent was in the swimming pool area with

the children, nor was their 19-year-old son, who sometimes helped

supervise the children. No adult was present in or at the pool

with the children during this three-hour period. In fact, during

the entire period, an adult came out to the pool only one time.

7. At one point during the afternoon, one of the nine-year-

old foster children removed the floaters from Cheyenne's arms.

At some later point, Cheyenne entered the pool and sank to the

bottom of the deep end. Cheyenne's sister noticed Cheyenne at

the bottom of the pool and screamed for help. One of the nine-

year-olds dived into the pool and dragged Cheyenne out of the

water. As she lay on the pool deck, Cheyenne was not breathing.

8. Hearing the scream, Respondents ran out to the pool

area. Respondent Steven Price and his 19-year-old son had been

in one of the bedrooms where a nonworking television and dresser

had fallen over.

9. On reaching the pool, Respondent Steven Price

administered CPR and revived Cheyenne. EMS personnel transported

Cheyenne to the hospital, but fortunately she suffered no injury.

10. Petitioner removed the other children and later began

this proceeding to revoke the licenses of Respondents to care for

foster children.

11. The children testified that Respondents had left them,

unsupervised, swimming in the pool on other occasions.

12. The acts and omissions of Respondents on the afternoon

13. of the near-drowning constitute negligent acts

materially affected the health and safety of the foster children

entrusted to them.

CONCLUSIONS OF LAW

14. The Division of Administrative Hearings has

jurisdiction over the subject matter. Section 120.57(1), Florida

Statutes. (All references to Sections are to Florida Statutes.)

15. Section 409.175(8)(b)1 authorizes Petitioner to revoke

a license for an "intentional or negligent act materially

affecting the health or safety of children."

16. Petitioner must prove the material allegations by clear

and convincing evidence. Department of Banking and Finance v.

Osborne Stern and Company, Inc. , 670 So. 2d 932 (Fla. 1996) and

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

17. Petitioner has proved the material allegations of

neglect by clear and convincing evidence. Under the

circumstances it is unnecessary to address the remaining

allegations of the Administrative Complaint.

RECOMMENDATION

It is

RECOMMENDED t hat the Department of Children and Family

Services enter a final order revoking the licenses of Respondents

to serve as foster care parents.

DONE AND ENTERED this 19th day of June, 2000, in

Tallahassee, Leon County, Florida.

___________________________________

ROBERT E. MEALE

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 19th day of June, 2000.

COPIES FURNISHED:

Virginia Daire, Agency Clerk

Department of Children and

Family Services

Building 2, Room 204B

1317 Winewood Boulevard

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

Raymond R. Deckert

District Legal Counsel

Department of Children

and Family Services

4000 West Martin Luther

King, Jr., Boulevard

Room 500

Tampa, Florida 33614

Bonnie and Steven Price

Post Office Box 1015

Mango, Florida 33550

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 must be filed with the agency that will

issue the final order in this case.