01-000111 Department Of Children And Family Services vs. Nedra Street Status: Closed Recommended Order on Monday, October 4, 2004.

Summary: "Preponderance of evidence" test for revoking foster care license was met as to use of corporal punishment; not met as to insufficient income; and not met as to demeaning or intimidating with regard to natural parents.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Petitioner, )

)

vs. ) Case No. 01-0111

)

NEDRA STREET, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, a disputed-fact hearing was held before

the Division of Administrative Hearings by its duly-assigned

Administrative Law Judge, Ella Jane P. Davis, on May 31 -

June 1, 2001, in Gainesville, Florida.

APPEARANCES

For Petitioner : Lucy Goddard, Esquire

Department of Children and Family Services

Post Office Box 390, Mail Sort 3

Gainesville, Florida 32602-0390

For Respondent : William E. Davis, Esquire

1110 Northwest 6th Street

Gainesville, Florida 32601

STATEMENT OF THE ISSUE

Whether the Department of Children and Family Services

(DCF) may revoke Respondent's family foster home license for

inflicting physical, oral, and emotional abuse on three foster

children in her care, as more particularly stated in FAHIS

Report No. 2000-172767; intimidating the children to ask that

visits with their parents be stopped; and having sufficient

income, pursuant to Chapter 65C-13, Florida Statutes.

PRELIMINARY STATEMENT

At the commencement of the disputed-fact hearing, argument

was heard on Respondent Nedra Street's oral motion to introduce

the results of her polygraph examination, or alternatively, to

present the testimony and conclusions of the polygraph examiner.

The motion was denied.

This case involves several out-of-court statements of the

minor children, Taleca (age 10), Michael (age six), and Yana

(age four). Some of the children have different last names.

One child goes by a nickname. Different spellings of all the

children's names appear in the various depositions and

documents. For clarity and confidentiality, only one

first/nickname or initial has been used consistently herein for

each child.

The parties were advised in advance that any out-of-court

statements by the children had to be individually assessed by

the undersigned, pursuant to Section 90.803(23), Florida

Statutes, before being admitted in evidence.

Taleca testified at hearing. The parties stipulated that

Michael and Yana were unavailable to testify because

participation in the hearing would result in a substantial

likelihood of severe emotional or mental harm. 1

However, because of the agreed out-of-order presentation of

several witnesses' testimony due to time constraints; because of

the parties' stipulation that some transcribed depositions

concerning early interviews of the children would be admitted

without publication and only read and assessed in respect to

Section 90.803(23), Florida Statutes, during preparation of this

Recommended Order; and because it was stipulated to leave the

record open for an after-filed deposition of the first child-

interviewer, due to her emergency surgery and the parties'

stipulation that any child victim hearsay statements in that

after-filed deposition would be assessed in respect to Section

90.803 (23), Florida Statutes, in the course of this Recommended

Order, the parties ultimately requested that all rulings with

regard to Section 90.803(23), Florida Statutes, be reserved to

be made within this Recommended Order. (TR-476-480),

At hearing, Petitioner presented the testimony of Taleca

(live and by deposition transcript); Michael (by deposition

transcript and VHS tape); Susan M. Pendrak (by deposition

transcript), Linda Cox Ebbeling (by deposition transcript), Joe

Barrera, Deanna Sheppard, Mary Anna Hovey, Ph.D., Barbara

Brannen, and Benita Cooper (by after-filed deposition

transcript).

Respondent testified on her own behalf and presented the

oral testimony of Bertha Williams, Marinee Bowen, Eva Bradshaw,

Deborah Alessi, Lynn Holston, M.S.W., Lizzy Jenkins, and Ethel

Riley.

Respondent had two exhibits admitted in evidence.

By agreement, the record was left open for the deposition

of Benita Cooper, which transcribed deposition was filed on

July 13, 2001.

Petitioner had 12 exhibits, including depositions, plus the

after-filed deposition, admitted in evidence.

The Transcript had been filed on June 26, 2001.

Both timely-filed Proposed Recommended Orders have been

considered.

FINDINGS OF FACT

Insufficient Income

1. Respondent Nedra Street has held a Family Foster Home

License since July 6, 1998. At the time she was licensed, DCF

did not disqualify her application because she was between jobs.

DCF was aware she was living on unemployment compensation and

child support for her natural son, D.

2. DCF has no rule establishing strict economic parameters

for foster home licensees. Its rule only requires that foster

parents have sufficient income to absorb four to six weeks of a

foster child's care until a board payment is received. This

requirement is to ensure that foster parents will not divert

board payments for foster care children to their own needs and

so that they will spend the board payments on the foster

children entrusted to their care. So far as the testifying DCF

supervisor knew, no foster care license ever has been revoked

for insufficient income.

3. When Respondent was licensed, she was not required to

submit a budget. No rule requires that an applicant or licensee

submit a budget. However, DCF personnel currently requires that

applicants submit a budget, and DCF reviews the applicant's

stated income and expenditures. What formula, if any, DCF uses

for this review was not disclosed. Because DCF has never asked

Respondent for a budget, it has never analyzed her income and

expenditures in any detail.

4. Respondent, with her elderly mother, own and live on a

60-acre farm. They support themselves by raising cattle, by

growing timber for sale, and by leasing their peanut allotment.

Their home, its contents, and real property are owned free and

clear.

5. Respondent holds a B.S. degree in elementary education

and is Florida-certified to teach elementary school. She also

is a Certified Nursing Assistant and a Certified Medical

Assistant. At all times material, she was working only part-

time "as needed" in a delicatessen, so that she could devote

more time to her natural son and her foster children. As of the

date of hearing, she was employed at Shands Medical Center.

6. Respondent successfully fostered six other children

before the three children who are the focus of this case. There

is no credible evidence that she short-changed DCF or any child

as to food, clothing, or shelter. In making the foregoing

finding, I have considered Taleca's deposition testimony that

Respondent gave no food to the three children over any weekend,

"No, never one of us," and find it not credible upon the

evidence as a whole. Indeed, all other witnesses testified that

at all times material Respondent fed the children adequately and

kept Taleca, Michael, and Yana, clean, well-groomed, and well-

dressed, either by purchasing their clothing new, or by

receiving good quality clothing from one or another public or

private source.

Oral and Emotional Abuse; Intimidating the Children to Ask that

Visits With Their Parents Be Stopped

7. Foster parents are required to be supportive of the

foster child's birth parents by not saying demeaning or

degrading things about them to the child and by being supportive

of the family of origin. At some times material, it was DCF's

policy to urge contact between Taleca, Michael, and Yana and

their natural parents and to work for ultimate reunion.

8. During the material period of time, Respondent and

teachers reported to counselors that Taleca's, Michael's, and

Yana's behavior changed for the worse and remained bad for as

long as four days after each supervised visitation with their

natural mother. At some point, Respondent urged DCF counselors

and the school counselor, Lynne Holston, to stop the

visitations.

9. While there was no proof that Respondent ever

encouraged reunion of Taleca, Michael, and Yana with their

natural mother or father, likewise, there was no credible or

reliable evidence she ever demeaned the parents to the children.

In making the foregoing finding, I have discounted as not

credible Taleca's vague testimony concerning either inquiries or

statements by Respondent about the natural parents' prior abuse

of the children or failure to feed them.

Inflicting Physical Abuse on Taleca, Michael, or Yana

10. By rule, DCF prohibits foster parents from

administering corporal punishment to foster children. Foster

parents annually sign the disciplinary policy on this

prohibition. Respondent received training prior to becoming a

foster parent, which included this prohibition. She was clearly

aware she was not permitted to use corporal punishment on foster

children.

11. Foster children Yana (four years old), Michael (six

years old) and Taleca (10 years old) are siblings who were

placed in Respondent's family foster home on July 28, 1999.

They remained in Respondent's care for more than a year until

November 3, 2000, when they were removed by DCF as a result of

allegations of physical abuse. When removed from Respondent's

care in 2000, Taleca and Michael bore many scars and bruises,

most of which would not normally have been seen under ordinary

clothes, but some of which might be visible if the children were

wearing shorts.

12. When placed with Respondent i n 1999, all three

children had been physically abused by one or both natural

parents.

13. According to Advanced Registered Nurse Practitioner

Linda Cox Ebbeling, Child Protection Team (CPT) records show

referrals of Michael to DCF in 1995, when he was 17 months old

and while he was still living with his natural mother, for his

being hit in the face and head and for bruises from a metal-

tipped belt, and later the same year for a broken arm.

14. All three children had one or more psychiatric issues

to resolve when they were placed with Respondent in July, 1999.

15. Michael, particularly, was hyperactive, aggressive,

and violent towards other children when placed with Respondent.

He was particularly violent toward his younger sister Yana, but

as one counselor testified, "Yana was gaining on him quickly."

16. A kindergarten teacher described Michael as being

unable to be touched without his jerking away when he first

entered her class in August 1999, a few days after being placed

with Respondent.

17. Lynne Holston, M.S.W., is a child therapist of 23

years' experience and a registered play therapist. Taleca

relied on Ms. Halston for comfort and moral support during her

testimony at hearing.

18. Ms. Holston worked regularly with Respondent and th e

three children at Joyce Bullock Elementary School from the end

of September 1999 until August 2000. She found Respondent

responsive to her suggestions and proactive in getting all the

necessary assessments (medical, psychological, and educational)

necessary so that Michael could qualify for an appropriate

Individual Education Plan (IEP) suitable for his special needs.

Respondent also sat in class with him to calm him down when he

had bad days.

19. Nothing in the children's interactions with each

other, herself, or Respondent suggested to Ms. Holston that

Respondent was abusing any of the three children. She inquired

approximately every six weeks if anyone had touched them

uncomfortably, and both Taleca and Michael answered in the

negative each time. During this time, she never saw fresh

wounds on Taleca and saw only one fresh wound on Michael. That

wound was traced to a child-on-child encounter when Michael was

hit on the head with a brick by another boy.

20. Michael was impulsive, unfocused, a gitated, over-

anxious, and had many school incident reports during the 1999-

2000 school year. Whether these reports always involved

violence is unclear, but many did.

21. Through Respondent's persistence, Michael was

diagnosed with attention deficit/hyperactivity disorder (ADHD)

and medicated. His behavior improved.

22. At some point, Yana also became subject to

legitimately prescribed behavior-modifying medication.

23. Over time, all three of the children's aggressive and

traumatized play, which Ms. Holston related to the birth mother,

became more organized and resolved.

24. In November 1999, DCF investigated a complaint that

Respondent had slapped Michael in the face. Initially, Taleca

stated that the slapping incident had taken place. At that

time, various parts of Michael's body were photographed for a

CPT medical examination, but the photographs do not show all the

body parts that became an issue in the instant case arising in

November 2000. Some scarring on his buttocks and at least one

bruise was found on Michael's left lateral thigh in 1999, which

marks corresponded to two of twelve marks found in November

2000, see infra . The 1999 case was closed as unfounded and the

children were returned to Respondent's care. Apparently, one

reason for the "unfounded" classification was that Michael and

Taleca recanted.

25. According to Ms. Holston, in November 1999, supervised

visitation with the natural parents also was suspended because

the children were recovering memories of abuse by the natural

parents and did not want to see the birth mother. Ms. Holston

personally observed a cross-examination of Michael by his

natural mother at about this time concerning the DCF

investigation into whether or not Respondent had slapped

Michael. Ms. Holston felt the mother's examination was

upsetting and frightening to Michael.

26. Michael's deportment improved further after he was

assigned to a self-contained ESE classroom in approximately

August 2000.

27. Taleca and Michael were honor roll students by the

2000-2001 school year.

28. On March 27, 2000, a DCF counselor interviewed Taleca,

Michael, and Yana at school, outside Respondent's presence, and

reported no marks, bruises, physical indicators, or statements

of abuse. DCF Counselor Deanna Sheppard interviewed them in the

same manner on August 10, 2000, and October 31, 2000, three days

before DCF's removal of them from Respondent's home.

Ms. Sheppard also detected no marks, bruises, physical

indicators, or statements of abuse.

29. Many ordinary, prudent, and credible witnesses, who

had observed and known Respondent and the children

professionally and personally over varying periods of time,

uniformly expressed their belief that Respondent had been a good

foster parent and testified that they had observed no marks on

the children or abuse by the Respondent.

30. Michael had bonded with his kindergarten teacher who

had maintained weekly, but not private, contact with him into

the 2000-2001 school year. Michael never told her of any abuse

by anyone. She has reported abuse of other children in the

past, but she noticed no evidence that Michael was abused.

31. It is undisputed that sometime on October 31, 2000,

Yana sustained several first and second degree burns on her neck

and chin from one or both of Respondent's two curling irons.

What is disputed is how the burning occurred, whether Respondent

inflicted the burns, and whether Respondent was justified in her

failure to report the incident to DCF.

32. On November 3, 2000, Benita Coo per, Child Protective

Investigator (CPI), responded to an abuse hotline complaint

naming Yana as a victim, and went to the children's school. Her

interviews with all three children on that day are deemed

reliable hearsay. 2

33. At the school, Ms. Coop er interviewed Yana separately

and privately, using open-ended questions. In response to

Ms. Cooper's question of "What happened?" Yana told her that she

had been beaten with a spoon. Yana made no statement whatsoever

about her burns.

34. During this interview, Ms. Cooper also observed marks

on Yana's arm, elbow, back, under her chin, and on the back of

her neck. Ms. Cooper considered the neck wounds and some other

marks fresh. She considered still other marks to be old, but

she did not date the marks.

35. In Ms. Cooper's opinion, Yana's neck injuries were all

ones a foster parent is expected to report. In Ms. Brannen's,

the DCF District Supervisor of Foster Home Licensing's, opinion,

it is unclear whether a foster parent is required to report an

injury of this kind when they are capable of treating it

medically.

36. Ms. Cooper also questioned Taleca and Michael

separately and privately at their school. They were reluctant

to talk to her and denied they had been hit, denied being

disciplined at home, or knowing anything about Yana's injuries.

It is recognized that children often do not report on-going

abuse at the first opportunity.

37. Deanna Sheppard had become DCF Foster Care Counselor

for Taleca, Michael, and Yana as of June 2000, but she had not

seen them except as noted above and had developed no particular

rapport with them. Her recitation of hearsay statements of the

children on November 3 and 4, 2000, have been considered,

pursuant to Section 90.803(23), Florida Statutes, and found

reliable. 3 Accordingly, it is found that on November 3, prior to

her CPT physical examination, Yana stated, under reasonably

reliable circumstances, that "Mama was doing my hair and burned

me with the curling iron," and that "Mama whooped me with a

spoon." Ms. Sheppard understood her to be referring to

Respondent.

38. Advanced Registered Nurse Practitioner Susan Pendrak

examined Yana on November 3, 2000. Advanced Registered Nurse

Practitioner Linda Cox Ebbeling examined Taleca and Michael on

November 4, 2000. Both women are qualified by education,

training, and experience to render expert nursing opinions. The

fact that their opinions with regard to the wounds of the

children that they examined were couched in terms of "reasonable

medical certainty" is not disqualifying, as the undersigned has

accepted their opinions as being given only within their

expertise of nursing.

39. Nurse Pendrak's findings with regard to Yana's wounds

on November 3, 2000, were that the hyper-pigmented linear marks

on Yana's neck, arm, and hand were consistent with burns from a

curling iron. She believed those on the neck had been inflicted

by another person and were not accidental because of the

location, pattern, and number of burns. She did not believe

that any burns could have been inflicted accidentally due to the

location, pattern, and number of burns, and further stated that

if a sibling had done it, Yana could have gotten away. However,

there were no marks on Yana clearly showing she had been held by

an adult. Therefore, an accident cannot be ruled out.

40. In the context of Yana's November 3, 2000, examination

by Nurse Pendrak, which I find constituted reliable

circumstances under Section 90.803(23), Florida Statutes, Yana

repeatedly told Nurse Pendrak that "my momma whooped me" with a

"whooping spoon," which Yana described as black and wooden, and

with a "whooping" stick. Yana stated she did not want to go "to

my momma's house." She made no statements about the burns.

Nurse Pendrak concluded that Yana was referring to her foster

mom, Respondent. 4

41. After Yana's examination, Ms. Sheppard transported all

three children to the Trenton DCF Office where they were

interviewed by Bonnie Robinson, a Child Protection Investigator,

while Ms. Sheppard took notes. Ms. Sheppard's recitation of

hearsay statements of the children has been considered, pursuant

to Section 90.803(23), Florida Statutes, and found reliable. 5

42. At the Trenton Office, Bonnie Robinson interviewed

each of the children separately while Ms. Sheppard took notes.

Ms. Sheppard seems a little vague about whether or not Yana

said, at this interview, that she was burned by her Mama, but is

clear that she identified Respondent as the one who had "whooped

[her] with a spoon." She is also clear that Michael stated he

had been whipped on his feet, hands, and butt, with a black

spoon and a brown and gray stick and that Taleca said she had

been whipped with a black spoon with tape on the handle, a stick

or paddle, and an "x" belt, and that these items were kept in

Respondent's nightstand. Each of the children identified

Respondent's bedroom by colors.

43. Deputy Sheriff Joe Barrera accompanied Bonnie Robinson

and Ms. Sheppard to Respondent's home on the evening of

November 3, 2000. Taleca, Michael, and Yana were not present in

the home, but D., Respondent's natural son, was present.

Respondent denied ever seeing the scars on Taleca and Michael in

photographs she was shown because the scars were under their

clothes and she did not bathe them. 6 With regard to photographs

of Yana's burns, she stated that Yana burned herself with the

curling irons while Respondent was in the restroom. She denied

ever hitting any of the children.

44. Deputy Barrera seized a large, black, plastic serving

spoon, with the handle wrapped in gray duct tape and a hole in

the handle for hanging it, and a paint stirrer in natural wood

with red lettering on it from the bottom drawer of Respondent's

bedside night stand. 7

45. At hearing, Taleca testified that this was not the

spoon with which Respondent beat her, but she recognized the

stirrer which she called a "paddle." Respondent testified this

was a spoon reserved for feeding the dog, and the children had

hit each other with it. Respondent's testimony on the spoon as

the children's weapon is not credible, and she did not explain

the stirrer.

46. On Saturday, November 4, 2000, after the three

children had spent the night together in an emergency shelter,

Deanna Sheppard picked up Taleca and Michael for their CPT

medical examination by Nurse Linda Cox Ebbeling.

47. In the context of her examination of him, Nurse

Ebbeling asked Michael about twelve marks on his body. This

procedure constituted reliable conditions under Section

90.803(23), Florida Statutes. 8 Michael could give no history

about the cause of many of his scars, and this is reasonable in

light of his age and the number of times he must have been

scarred even by his own hyperactivity. Due to Michael's

inability to give a history for many of his injuries, Nurse

Ebbeling leaned toward an opinion that he "could have" been

abused, as opposed to clearly opining that he had been abused.

Nonetheless, she related that Michael attributed two of the

marks on his body to being hit by Respondent with a black spoon

and a switch, and in her professional opinion, these two marks

had been, in fact, inflicted. Michael stated that another one

of the marks was from his "old mom," as distinguished from

Respondent. Michael also stated that Respondent slammed him

against the wall and used a stick or switch to hit his hands,

butt, and the bottoms of his feet. He stated that he had seen

Respondent hit his two sisters, but he did not relate that

Respondent had jumped on him.

48. Nurse Ebbeling did not professionally confirm that

Michael had been slammed against a wall or jumped upon. She

eliminated the disparities on Michael's feet from being bruises

or inflicted wounds, as conjectured by other witnesses, and

attributed them to Michael simply having a different skin

texture in that area. Several other marks on Michael's body

looked inflicted to her, but she could not rule out accidental

injury. Overall, Michael evidenced multiple healed and healing

lesions, some of which were consistent with his telling her they

had been inflicted by Respondent. Michael's healed lesions

could not be placed as having occurred before he went to live

with Respondent or placed during the year and a-half he had

lived with her.

49. In the context of her examination of Taleca on

November 4, 2000, which I find constituted reliable

circumstances under Section 90.803(23), Florida Statutes , 9 Nurse

Ebbeling determined that the multiple curvilinear lesions and

hyper-pigmented lesions on Taleca's right hip and back shoulder

area were consistent with Taleca's statements that Respondent

had hit her on her hip and back with a black spoon, but that

Taleca did not have an explanation for several other marks on

her body. Taleca's other allegations at that time of Respondent

stomping on her and banging her head into things were not

verified by the nurse.

50. Taleca and Michael were deposed January 30, 2001.

These depositions are fully in evidence and have been considered

in their entirety, as if the testimony therein had been given at

hearing. 10

51. At the time o f Taleca's and Michael's January 30,

2001, depositions, the three children were residing with foster

care mother, Ethel Riley. Ms. Riley has successfully fostered

30-40 children since 1994.

52. After the children's depositions and about two weeks

before February 26, 2001, Ms. Riley overheard Michael state to

Taleca, during a squabble, "Ms. Street didn't burn Yana's neck.

Yana burned her own self." Ms. Riley attempted to report this

conversation to Ms. Sheppard and was rebuffed. This hearsay

statement also is considered reliable pursuant to Section

90.803(23), Florida Statutes. 11

53. On or about February 26, 2001, after Michael had

become uncontrollable at school, a complaint was called in to

the abuse hotline about Ms. Riley abusing the three children

involved in the present case. Taleca and Michael gave

statements that they had been paddled by Ms. Riley with a board.

No CPT investigation of this incident occurred and Ms. Sheppard

simply removed the children to another foster home, apparently

on the theory that there had been "inappropriate" corporal

punishment but not abuse. Another hotline complaint, alleging

Ms. Riley had locked Yana in her garage, was investigated the

next day. Apparently, this report was listed as unfounded,

because Ms. Riley is still licensed. Ms. Riley credibly denied

abusing any children and stated that her garage is, in fact, a

recreational room for the children. She noted that two weeks

before Taleca and Michael accused her of paddling them, she had

signed a form permitting school officials to paddle Michael

instead of suspending him.

54. Mary Anna Hovey holds a Ph.D. in clinical psychology

and sociology and is a Florida-licensed clinical psychologist

with at least 17 years of experience with children. Dr. Hovey

is qualified by education, training, and experience to give

expert testimony in the field of child psychology. She

interviewed Taleca, Michael, and Yana in March 2001 , four months

after the children were removed from Respondent's home. She

spent approximately three and a-half hours with each child

separately. Appropriately under the case law, Dr. Hovey did not

comment on the credibility of the child witnesses or their

hearsay statements, but her expertise has been considered in

assessing the reliability of the child-hearsay statements, the

children's deposition testimony, and Taleca's live testimony.

Specifically, it has been considered in relation to each child's

respective consistency or inconsistency with the psychological

"affect" of abused children versus children who have been

coached, who concoct stories, or who fantasize.

55. The corroborative evidence for each child's hearsay

statements under Section 90.803(23), Florida Statutes, are the

photographs of the children's respective wounds, the nursing

evidence of causality and dating of the wounds, and the fact

that a spoon and stirrer matching the children's general

descriptions were found in complete accord with the children's

statements.

56. Having fulfilled all statutory requirements for

determining that the hearsay statements are admissible and may

be considered, the evidence as a whole must be considered and

weighed.

57. Michael's videotape deposition, like Taleca's live

testimony, allowed assessment of each child's credibility based

on candor, demeanor, and consistency in a confrontational legal

setting. Taleca's testimony, live and by deposition, and

Michael's video deposition testimony are generally consistent

with their respective prior hearsay statements concerning being

hit with a black spoon or small stick or paddle by Respondent,

and the reasons therefore (bad grades, bad behavior, and failed

farm chores) but they differ significantly and implausibly on

other matters. Those other allegations are rejected. 12

58. Based on Taleca's and Michael's candor and demeanor

while testifying; the expert evidence that abused children may

exaggerate or add more severe details with the intent of

persuading adults that a smaller, but real, abuse actually

occurred; several prior inconsistent or incomplete statements of

the respective children closer in time to the actual events and

another statement made while at Ms. Riley's house, I find that

the only credible parts of these children's testimony is that

they were beaten by Respondent with a spoon and/or a small

paddle, like the paint stirrer, and I make this finding

primarily because the children were immediately able to direct

investigators to a spoon and a paint stirrer reasonably matching

their descriptions, and these items, according to competent

nursing opinion, matched some of the marks on each child.

Taleca's denial at hearing that the spoon located in

Respondent's nightstand was the same spoon used by Respondent to

beat her does not undermine her credibility in light of her

recognizing the paint stirrer as a "paddle."

59. The fact that Taleca and Michael have subsequently

accused Ms. Riley of paddling them suggests a developing pattern

of attacking foster parents, but does not undermine the fact

that in Respondent's case, both children could direct

investigators to the specific striking implements or the fact

that Michael was able to distinguish marks made on him by his

"old mom" from those made by Respondent.

60. As to Taleca's live and deposition testimony that

Respondent intentionally burned Yana with a curling iron, I

detect a desire to please whichever attorney was asking the

question and to embellish so as to fill in parts of events about

which she did not know. She admitted several times that she did

not see Respondent intentionally burn Yana with a curling iron

and the gist of her testimony is that she assumed that

Respondent intentionally burned Yana, because often when Yana

wiggled while the curling process was going on, Respondent said

something like, "If you don't hold still, I will burn you."

Taleca assumed the comment was a threat which was ultimately

carried-out, while Respondent's statement may just as clearly

have constituted a warning. Taleca's history of prior child

abuse probably precludes her inferring an innocent motive.

61. Respondent testified credibly that on October 31,

2000, she had intended to take Yana to a Halloween party at

school after driving to a neighboring town to see her mother,

who had been in and out of the hospital twice within the last

few days due to complications of a heart attack. However, Yana

had "the runs," so she had taken her home. The two curling

irons Respondent used for herself and the girls in the morning

had been plugged in all day because Respondent had forgotten to

unplug them, and after the older children came home, while

Respondent was in the shower, Yana was burned with the curling

irons. Respondent suspected that Michael might have done it or

Yana had done it herself. Respondent did not report the burns

to DCF because the children's counselor, Ms. Sheppard, did not

have a pager and had not given her an after-hours phone number,

and also because between October 31 and November 3, 2000,

Respondent's mother was in and out of the hospital twice more.

62. The two Advanced Regist ered Nurse Practitioners

testified that Respondent correctly treated Yana's neck burns

with Neosporin. Both Advanced Registered Nurse Practitioners

agreed that leaving the burns open to the air after applying

Neosporin would have been appropriate, or if there were a chance

dirt would get in the wounds when Yana went to school, it would

have been appropriate to cover them with clean, sterile gauze.

One nursing witness testified that a band-aid would be a

sufficient covering, provided the gauze fully covered the burned

area. Letting the sticky part of the band-aid touch the burned

area would not be appropriate.

63. Respondent used a regular-sized band-aid on the

largest of the burn wounds on November 3, 2000, when she sent

Yana to school. Later in the day, Mesdames Cooper, Sheppard,

and Pendrak found that the sticky part of the band-aid had come

in contact with the wound.

64. Yana's out-of-court statements, while found

individually reliable in terms of Section 90.803 (23), Florida

Statutes, are not fully credible. The evidence as a whole,

specifically Respondent's compelling and credible direct

refutation of Yana's version of events and Michael's out-of-

court statement overheard by Ms. Riley, are persuasive that Yana

did not consistently relate Respondent to her burns because the

burns were her own fault. Nurse Pendrak's testimony that the

pattern of the curling iron burns is only consistent with abuse

is not persuasive, since she cannot rule out Yana's involvement.

CONCLUSIONS OF LAW

65. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this cause,

pursuant to Section 120.57(1) and Chapter 400, Part III, Florida

Statutes.

66. DCF's duty to go forward and the burden of proof in

this cause of license revocation is only by a preponderance of

the evidence, which is an exceedingly slim margin.

67. Section 409.175(1)(e), Florida Statutes (2000),

states:

"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.

68. Rule 65C-13.011, Florida Administrative Code--Minimum

Standards for Licensure of Family Foster Homes, Family Emergency

Shelter Homes and Family Group Homes, states in part:

(4 ) Income. Substitute care parents must

have sufficient income to assure their

stability and the security of their own

family without relying on board payments.

The substitute family must have sufficient

income to absorb four to six weeks of a

foster child's care until a board payment is

received.

69. For the reasons set forth in Findings of Fact 1

through 9, DCF has failed to prove the children were intimidated

by Respondent to ask that visitation with the parents of origin

be ended and has failed to prove that Respondent has

insufficient income to qualify as a foster parent.

70. Section 409.175(8)(a) and (b), Florida Statutes

(2000 ), states, in part:

(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.

71. Rule 65C-13.010, Florida Administrative Code--

Substitute Care Parent's Role as a Team Member, states in part:

(1 ) Responsibilities of the Substitute

Parent to the Child.

(b ) Family Care Activities.

5. Discipline.

f. The substitute care

parents must not use corporal

punishment of any kind.

(4 ) Responsibilities of the Substitute Care

Parents to the Department.

(j ) The substitute care parents must

notify the department immediately of illness

or accidents involving the child.

72. On the issue of physical abuse, the children's hearsay

statements first must be assessed for reliability.

73. Section 90.803(23), Florida Statutes (2000), states:

(23 ) HEARSAY EXCEPTION; STATEMENT OF CHILD

VICTIM.

(a ) Unless the source of information or the

method or circumstances by which the

statement is reported indicates a lack of

trustworthiness, an out-of-court statement

made by a child victim with a physical,

mental, emotional, or developmental age of

11 or less describing any act of child abuse

or neglect, any act of sexual abuse against

a child, the offense of child abuse, the

offense of aggravated child abuse, or any

offense involving an unlawful sexual act,

contact, intrusion, or penetration performed

in the presence of, with, by, or on the

declarant child, not otherwise admissible,

is admissible in evidence in any civil or

criminal proceeding if:

1. The court finds in a hearing

conducted outside the presence of the jury

that the time, content, and circumstances of

the statement provide sufficient safeguards

of reliability. In making its

determination, the court may consider the

mental and physical age and maturity of the

child, the nature and duration of the abuse

or offense, the relationship of the child to

the offender, the reliability of the

assertion, the reliability of the child

victim, and any other factor deemed

appropriate; and

2. The child either:

a. Testifies; or

b. Is unavailable as a witness,

provided that there is other corroborative

evidence of the abuse or offense.

Unavailability shall include a finding by

the court that the child's participation in

the trial or proceeding would result in a

substantial likelihood of severe emotional

or mental harm, in addition to findings

pursuant to s.90.804(1).

(b ) In a criminal action, the defendant

shall be notified no later than 10 days

before trial that a statement which

qualifies as a hearsay exception pursuant to

this subsection will be offered as evidence

at trial. The notice shall include a

written statement of the content of the

child's statement, the time at which the

statement was made the circumstances

surrounding the statement which indicate its

reliability, and such other particulars as

necessary to provide full disclosure of the

statement.

(c) The court shall make specific findings

of fact, on the record, as to the basis for

its ruling under this subsection.

74. It was stipulated that Michael, six, and Yana, four,

were "unavailable" to testify because their participation in the

disputed-fact hearing would result in a substantial likelihood

of severe emotional or mental harm. Taleca testified at the

disputed-fact hearing. Michael's deposition constituted his

testimony at hearing. The foregoing satisfies the first element

of the test required under Section 90.803 (23), Florida

Statutes, for the admission of child victim hearsay statements.

75. The statute requires s pecific findings of fact that

the content and circumstances of each child hearsay statement

provide sufficient safeguards of reliability. The Florida

Supreme Court in State v. Townsend , 635 So. 2d 949 (Fla. 1994),

has directed that two specific reliability requirements are

necessary: (1) the source of the information through which the

statement was reported must indicate trustworthiness, and (2)

the time, content, and circumstances of the statement must

reflect that the statement provides sufficient safeguards of

reliability. That case goes on to direct that each statement

must first be determined to be reliable without regard to

corroborating evidence, and if the statement is considered

reliable, only then may it be determined if there is

corroborative evidence. In determining reliability, the mental

and physical age and maturity of the child, the nature and

duration of the abuse or offense, the relationship of the child

to the offender, the reliability of the assertion, the

reliability of the child victim, and any other factor deemed

appropriate may be considered. Other factors may include, but

are not limited to the statement's spontaneity; whether the

statement was made at the first opportunity; whether the

statement was elicited in response to questions from adults; the

mental state of the child when the abuse was reported; whether

the statement consisted of a child-like description of the act;

whether the child used terminology unexpected of a child of

similar age; the motive or lack thereof to fabricate the

statement, the ability of the child to distinguish between

reality and fantasy; the vagueness of the accusations; the

possibility of any improper influence on the child by

participants involved in a domestic dispute; and contradictions

in the accusation. Naturally, every factor will not be

applicable to every statement.

76. The foregoing factors have been considered and

specific findings with regard to the reliability of each

statement have been made as footnotes within the Findings of

Fact.

77. Once reliability has been determined for purposes of

admissibility of child-hearsay statements, those statements

still must be analyzed and weighed as only part of the evidence

as a whole. That also has been done in the Findings of Fact.

78. It cannot be concluded that Respondent intentionally

or accidentally burned Yana with the curling iron. Her

treatment of the burns was reasonable. Her failure to report

the burns to DCF under the circumstances was excusable.

79. There is a preponderance of the evidence that

Respondent administered unauthorized corporal punishment.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law,

it is

RECOMMENDED

That the Department of Children and Family Services enter

its final order, revoking Respondent's family foster home

license.

DONE AND ENTERED this 4th day of October, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

ELLA JANE P. DAVIS

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 the Clerk of the

Division of Administrative Hearings

this 4th day of October, 2001.

ENDNOTES

1/ This stipulation satisfies the first "prong" of the test

outlined in Section 90.803(23), Florida Statutes, for admission

of child victim hearsay.

2/ Ms. Cooper has conducted over 400 such interviews and is a

reliable source or conduit. Her questions were open-ended.

Yana did not evidence any aspects of fabrication, elaboration,

volunteerism, or coaching. She was separated from any

influences by the natural mother, the other children, or

Respondent. She used age-appropriate terminologies. She had

not seen her natural mother for 12 months and it had been 12

months, since she had initially recovered memories of her

natural mother's abuse. She has no prior or subsequent history

of unreliable statements. It is recognized that children often

do not report on-going abuse at the first opportunity, but since

this was her first interview after an unusual event, it was

probably the most accurate of her statements.

3/ Ms. Sheppard was not certified in child protection at this

point, but her questions were sufficiently non-pejorative.

Yana's statements were made before she had a chance to "consult"

Taleca and Michael. Except that it was the second interview,

all other circumstances supporting reliability are the same as

in n.2.

4/ This examination was by a specially-trained CPT nurse who is

a reliable conduit for the statement. The timing and clinical

circumstances of the examination, open-ended questions, and

separation of Yana from the other children were in aid of

reliability. All concerns as to recovered memory or contact

with the natural mother are as in n.2.

5/ These interviews were rushed, allowing only 5-10 minutes per

child, and after the children had been together with Ms.

Sheppard for some period of time. Ms. Sheppard did not do the

interview but only took notes. Her vagueness as to whether

Yana actually attributed her burns to Respondent is of concern

but does not necessarily taint the statements of the other two

children. Michael and Taleca's recantation of a prior

accusation of abuse by Respondent is not necessarily

disqualifying, and that event may explain their delay in talking

about corporal punishment. All the children were consistent on

basic points, age-appropriate in their language and detail, and

apparently not influenced by the natural mother as set out in

n.2.

6/ There is no clear, credible evidence as to which, if any, of

the numerous photographs admitted in evidence were shown to

Respondent on November 3, 2000.

7/ Hearsay statements and identifying or directive behavior of

D. may not be considered here due to their failure to meet the

requirements of Section 90.803(23), Florida Statutes.

8/ Although Michael could have concocted his story overnight,

in collusion with Taleca, that is unlikely, because it is

grossly consistent with his prior statements. Although he was

medicated, it was a type of medication which helped him focus.

His examination was by a specially-trained CPT nurse who is a

reliable conduit for the statement. The clinical circumstances

of the examination, without the DCF counselor present, using

open-ended questions, and the separation of Michael from the

other children were in aid of reliability. Michael's age, the

nature of the abuse and its duration, his relationship to

Respondent, age-appropriate terminology, and the lack of any

psychological "affect" of fabrication, volunteerism or coaching

further ensure reliability. Michael's prior recantation of an

earlier accusation against Respondent is not necessarily

disqualifying, but should be considered in the credibility

assessment stage. His not attributing every mark to Respondent

and his ability to distinguish marks made by Respondent from

those made by his natural mother also suggests reliability.

9/ Although Taleca could have concocted her story overnight in

collusion with Michael, that is unlikely due to its overall

consistency with her prior statement. This examination was by a

specially-trained CPT nurse who is a reliable conduit. The

clinical circumstances of the examination, without the DCF

counselor present, using open-ended questions, and the

separation of Taleca from the other children were in aid of

reliability. Taleca's reliability based on her prior

recantation of an earlier accusation of Respondent is not

necessarily disqualifying but should be considered in the

credibility assessment stage. Her psychological "affect" was

appropriate. Her elaboration upon her statement the previous

day raises some credibility issues, but based on the expert

testimony of how children gradually reveal and expand on abuse,

I find this statement essentially reliable.

10 / Taleca's deposition (DCF Exhibit 9) is admissible because

it was used for Respondent's impeachment purposes. Taleca's

deposition (DCF 9) and Michael's deposition (DCF Exhibits 10A

and 10B) are admissible, pursuant to Sections 90.803(22) and

90.804(2) ,Florida Statutes, as prior testimony in a similar

proceeding wherein Respondent and her prior lawyer had the

opportunity of confrontation. I find no offense in this

procedure to Sections 90.402 or 90.403, Florida Statutes.

11 / This statement was spontaneous, overheard, and unsolicited.

Ms. Riley is a reliable conduit in that she reported the

statement before any charges were brought against her by the

children.

12 / Although Michael testified that Respondent had picked him

up by his leg and thrown him down in the hallway; that she had

kicked and jumped on his stomach with her foot; that she had hit

him on the tops of his feet; that she put all of her weight on

his neck and stomach; that she did the same exact thing to all

three children; that she busted all their noses by throwing them

on the tip of their noses; and although Taleca testified to

Respondent banging her head against a doorknob three times;

banging her head into the deep freeze; choking her so that she

could hardly breathe and saying "the next time, girl, I'm going

to choke you to death"; slamming all three children against the

wall; stepping on their stomachs and backs and kicking them;

hitting her so hard with a spoon that she bled from her thigh;

and hitting her with a dog leash; this testimony was not

corroborated by the medical examinations. Moreover, most of

this testimony grew like a weed over the period of several

months and is logistically incredible. Whether I consider

Taleca's and Michael's verbal descriptions of Respondent jumping

on all the children's backs and stomachs or merely Taleca's

demonstration given in open court which showed Respondent

holding Taleca down with one foot and kicking her with the

other, I find these descriptions unreasonable and incredible in

light of Respondent weighing over 200 pounds and no injuries

consistent with that force being found on any child. For the

same reasons, I reject both Taleca's and Michael's testimony

that Respondent made them take off all their clothes and then

jumped on them in the hallway.

COPIES FURNISHED :

William E. Davis, Esquire

1110 Northwest 6th Street

Gainesville, Florida 32601

Lucy Goddard, Esquire

Department of Children and

Family Services

Post Office Box 390, Mail Stop 3

Gainesville, Florida 32602

Virginia A. 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

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.