01-003087 Ray Hill And Gloria Hill vs. Department Of Children And Family Services Status: Closed Recommended Order on Thursday, February 14, 2002.

Summary: Corporal punishment plus pattern of inability to cope with foster children resulted in loss of foster care license.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RAY HILL AND GLORIA HILL, )

)

Petitioner, )

)

vs. ) Case No. 01 - 3087

)

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, a disputed - fact hearing was held in this

case before Ella Jane P. Davis, a duly - assigned Administrative

Law Judge of the Division of Administrative Hearings, on

September 14, 2001, and November 27, 2001, in Quincy, Florida.

APPEARA NCES

For Petitioner: Ray and Gloria Hill, pro se

812 West Laura Street

Quincy, Florida 32351

For Respondent: John R. Perry, Esquire

Department of Children and Family Services

2639 Nort h Monroe Street, Room 252 - A

Tallahassee, Florida 32399 - 2949

STATEMENT OF THE ISSUE

May the Department of Children and Family Services revoke

Petitioners' foster home license for cause?

PRELIMINARY STATEMENT

The Department of Children and Fa mily Services (DCF)

referred this case to the Division of Administrative Hearings on

or about August 6, 2001. Despite the style of this cause, DCF

had the duty to go forward and the burden of proof herein.

The disputed - fact hearing began on September 14 , 2001. At

that time, DCF presented its case - in - chief in the testimony of

J.B. and A.W. Mr. and Mrs. Hill testified on their own behalf at

that time and had one exhibit (R - 1) admitted in evidence.

However, due to the sudden and unexpected refusal of on e of

Mr. and Mrs. Hill's witnesses to appear without a subpoena, the

parties agreed to suspend the hearing until that witness's

testimony could be compelled. After considerable difficulty in

compelling the attendance of the recalcitrant witness,

Sydney Smith, her testimony was presented on November 27, 2001.

No rebuttal was offered by DCF.

A Transcript was provided by DCF on December 19, 2001.

Mr. and Mrs. Hill filed a Proposed Recommended Order on

January 15, 2002. DCF filed its Proposed Recommend ed Order on

January 17, 2002. Both proposals have been considered in the

preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioners Ray and Gloria Hill have operated a licensed

foster care home in Gadsden County, Florida, for approximate ly

two years. Their home is licensed by DCF through Boys and Girls

Town of Tallahassee, a private, not - for - profit organization which

provides foster home placements for DCF.

2. During all or part of these two years, Petitioners had

two teenage gir ls placed in their foster care by Boys and Girls

Town. These girls were J.B. (twelve years old) and A.W.

(fourteen years old).

3. Two altercations allegedly occurred between J.B. and

Gloria Hill, who were the only witnesses to either event.

4. J.B. resided with the Hills for the better part of the

two years. Two days before Christmas 2000, Mrs. Hill had an

argument with J.B. as a result of J.B. having opened every

holiday - wrapped Christmas present under the tree. When Mrs. Hill

asked her if she had done this, J.B. would not respond. There is

no dispute that J.B. had Chinese food, prepared by Mrs. Hill, in

her hands at that point. J.B. denied throwing the food at

Mrs. Hill and asserted that Mrs. Hill slapped the food out of

J.B.'s hands, and that, after several misses, Mrs. Hill slapped

J.B.'s face with an open hand, at which point, J.B. began hitting

Mrs. Hill. Mrs. Hill denied "initiating" the violence, but it is

uncontested and both witnesses testified to hitting each other

several ti mes at that point. Mrs. Hill requested that night that

J.B. immediately be removed from her care. A mark was found on

J.B.'s face when she was removed from the Hills' home by

authorities that night. There is no clear evidence as to what

caused the mark.

5. According to J.B.'s initial testimony at the final

hearing, Gloria Hill, in a rage, pushed J.B.'s face into the

dashboard airbag area of a car driven by Mrs. Hill while J.B. was

riding in the front passenger seat, causing J.B.'s lip to bleed.

Gloria Hill denied doing so. J.B. did not report this alleged

incident to anyone for many months. She only reported it the

night she was removed from the Hills' home after the Christmas

2000 incident.

6. After J.B.'s removal from the Hills' home, and after

interrogation by Boys and Girls Town social worker, Sydney Smith,

J.B. recanted her accusation that Mrs. Hill had deliberately

pushed her face into the dashboard airbag area of the car. At

that time, J.B. stated to Mrs. Smith that Mrs. Hill had , in fact,

extended her arm to keep J.B. from falling forward into the

dashboard and windshield when Mrs. Hill was forced to suddenly

apply the brakes to avoid a collision.

7. Accordingly, on the basis of the prior inconsistent

statement, J.B.'s te stimony about the dashboard incident is not

credited as a true account, and the veracity of her version of

the Christmas 2000 incident is thrown into doubt.

8. A.W. lived with Mr. and Mrs. Hill for only part of the

two years that J.B. was with them. In August 2000, contrary to

Mrs. Hill's prior instructions, A.W. showed J.B. an unflattering

internet jailhouse photograph of J.B.'s natural mother. The

printout of this photograph also revealed J.B.'s natural mother's

criminal record, which J.B. did no t yet know about at that time.

Although A.W. testified with less clarity than might be wished,

her most coherent and credible version of subsequent events is

that Mrs. Hill swung at her three times with the paper computer

printout and one of those swings made contact with A.W.'s face.

9. A.W. also asserted that Mrs. Hill slapped her once in

the face with her open hand before A.W. began striking and

kicking Mrs. Hill. A.W. testified that she did not know if

Mrs. Hill had been trying to grab her or hit her, but that

Mrs. Hill's hands were "in my face." J.B. was present during

this altercation, and she corroborated A.W.'s assertion that

Mrs. Hill slapped A.W. before A.W. struck Mrs. Hill.

10. Once again, Mrs. Hill denied "initiating" any viole nce,

but she offered no other explanation of her actions, and no

specific denial that she hit A.W. with the computer photograph

before the general fight broke out.

11. It is not disputed, however, that Mr. Hill, who was in

another room, heard the co mmotion between Mrs. Hill and A.W. over

the photograph, and came to Mrs. Hill's rescue by bodily removing

A.W. to another area of the house. Apparently, neither A.W. nor

J.B. thought Mr. Hill's actions were out of line, although he

allegedly touched A.W.' s stomach when he carried her out of the

room to cool - off. A.W.'s testimony that Mr. Hill hung her upside

down but placed her upright on her feet without hurting her is

incredible, but also immaterial, because even A.W. admits that

she was out of control, that she was unharmed by Mr. Hill, and

that Mr. Hill placed her upright on her feet once she was out of

striking distance of Mrs. Hill.

12. Mrs. Hill called Boys and Girls Town and demanded that

A.W. be removed the night of the incident of the pho tograph, due

to A.W.'s violent behavior. After counseling with both of them,

Boys and Girls Town authorities talked Mrs. Hill into keeping

A.W. until she could be placed elsewhere. A.W.'s stay with the

Hills extended to two weeks, with Boys and Girls Tow n's approval.

This indicates to the undersigned that Boys and Girls Town's

social worker had no real - world concern for A.W.'s health and

safety while in the Hills' care at that time.

13. After she was removed from the Hills' foster care, A.W.

wrot e a letter to Mrs. Hill thanking her for her care and

apologizing for hitting Mrs. Hill. At the final hearing, A.W.

insisted this missive was not inconsistent with her testimony

that Mrs. Hill hit her first and she merely retaliated.

14. The remov al of J.B. near Christmas 2000, resulted in

either a foster care license revocation investigation or child

abuse registry investigation or both types of investigation by

DCF. Moreover, it appears that Boys and Girls Town mounted an

investigation of its ow n.

15. The outcome of any abuse investigation was not

presented at the final hearing herein.

16. However, after DCF's licensing authorities determined

that Petitioner's foster care license would not be renewed,

another DCF employee contacte d Mrs. Smith of Boys and Girls Town,

seeking to place a third child, L.T., with Petitioners. Due to

her sensitivity to confidentiality issues, Mrs. Smith gave very

vague information to the DCF placement employee concerning the

status of one or more of the investigations against Petitioners.

DCF then either directly placed L.T. with Petitioners or placed

L.T. with Petitioners through Boys and Girls Town. The placement

of L.T. with Petitioners after A.W. and J.B. had complained

against them does not repudi ate or mitigate the foregoing

Findings of Fact concerning Mrs. Hill's use of corporal

punishment. The placement of L.T. with the Hills was purely a

mistake which was corrected by the removal of L.T. from

Petitioners' care soon thereafter.

17. Both Mr. and Mrs. Hill testified that they had severe

behavioral problems with L.T. while he was with them. It is not

clear whether they asked for his removal from their home or not.

CONCLUSIONS OF LAW

18. The Division of Administrative Hearings has

juri sdiction over the parties and subject matter of this cause,

pursuant to Section 120.57(1) and Section 409.175, Florida

Statutes.

19. The duty to go forward is upon DCF. The burden of

proof in a license revocation case is by clear and convincing

evidenc e.

20. Section 409.175(8)(b) 1., Florida Statutes, provides

as follows:

(b) Any of the following actions by a

[foster] 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.

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

Florida Administ rative Code, provide guidelines for

discipline of foster children as follows:

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.

* * *

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, restri cting 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 saf e toy.

* * *

e. The substitute care parents must not

subject the 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. (Emphasis

supplied).

22. J.B.'s testimony concerning the dashboard incident is

entirely incredible and causes the undersigned not to believe her

version of the Christmas 20 00 incident as well. Since she and

Mrs. Hill were the only witnesses to those alleged incidents,

those allegations are not proven.

23. Likewise, J.B.'s lack of credibility for the two

incidents in which she was allegedly directly involved casts

doub t on the rest of her testimony concerning the photograph

incident. Without J.B.'s corroboration of the photograph

incident, accounts of that altercation amount to A.W. stating

that Mrs. Hill slapped her face with a photograph and slapped her

face with an open hand and Mrs. Hill denying at least the slap

with an open hand.

24. It is hard to conceive of how slapping A.W. with a

photograph could have any material affect on A.W.'s health or

safety. Mrs. Hill's slapping A.W. in the face with the

photograph d oes, however, amount to humiliating corporal

punishment which clearly escalated merely argumentative

circumstances into a violent situation. A.W.'s violent

retaliation to Mrs. Hill's slap with the photograph may have been

excessive, but the entire inciden t does not bespeak Mrs. Hill's

self - defense so much as it does her failure to manage a foster

child's behavior by positive methods outlined in the foster care

rules.

25. Moreover, the pattern observed here is that of three

children placed in Petitioner s' home, two (A.W. and J.B.) were

considered unmanageable by Petitioners, who asked to have them

removed, and even a third child, (L.T.), was considered by

Petitioners to have severe behavioral problems.

26. There is no legal right to a foster care l icense.

Section 409.175(2)(f), Florida Statutes, states:

(f) "License" means "license" as defined in

Section 120.52 [Florida Statutes]. 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. (Emphasis supplied)

RECOMMENDATION

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 revoking Petitioners' foster care license.

DONE AND ENTERED this 14th day of February, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

ELLA JANE P. DAVIS

Administrative Law Judge

Division of Administrativ e Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 14th day of Februar y, 2002.

COPIES FURNISHED :

Ray Hill and Gloria Hill

812 West Laura Street

Quincy, Florida 32351

John R. Perry, Esquire

Department of Children and Family Services

2639 North Monroe Street, Suite 252 - A

Tallahassee, Florida 32399 - 2949

Peggy Sanford, A gency 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

1317 Winewood Boulevard

Building 2, Room 204

Tal lahassee, 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.