02-001346 Cindy Springston vs. Department Of Children And Family Services Status: Closed Recommended Order on Friday, August 30, 2002.

Summary: Central abuse hotline report was insufficient absent any proof of facts to support denial of foster home license.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CINDY SPRINGSTON, )

)

Petitioner, )

)

vs. ) Case No. 02 - 1346

)

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on June 5, 2002, in Inverness, Florida, before the Division of

Administrative Hearings by its designated Administrative Law

Judge, Diane Cleavinger.

APPEARANCES

For Petitioner: Gregory Paules, Esquire

12421 North Florida Avenue

Tampa Law Center, Suite B - 122

Tampa, Florida 33612

For Respondent: Ralph J. McMurphy, Esquire

Department of Children and

Family Services

1601 West Gulf Atlantic Highway

Wi ldwood, Florida 34785 - 8158

STATEMENT OF THE ISSUE

Whether Petitioner's application for licensure as a family

foster home should be granted.

PRELIMINARY STATEMENT

By letter dated January 14, 2002, Respondent, Department of

Children and Family Service s (Department), advised Petitioner,

Cindy Springston, that her application for licensure as a family

foster home was denied. The denial was based on a Florida Abuse

Hotline Report received on May 14, 2000, which, after

investigation, the Department determ ined that there were some

indications of neglect. Petitioner disagreed with the denial

and disputed the allegations of the letter. By letter dated

February 7, 2002, Petitioner requested a formal administrative

hearing. The case was forwarded to the Divi sion of

Administrative Hearings.

At the hearing, Petitioner testified in her own behalf and

offered four exhibits into evidence. Respondent presented the

testimony of three witnesses but did not offer any exhibits into

evidence.

After the hearing, Petit ioner filed a Proposed Recommended

Order on June 26, 2002. Respondent did not file a proposed

recommended order.

FINDINGS OF FACT

1. Around September 4, 2001, Petitioner applied for

licensure as a family foster home.

2. Petitioner successfully comple ted all the requirements

for licensure mandated by the Department. In fact, the

Department’s family services counselor supervisor recommended

Petitioner for licensure. However, prior to finalization of her

recommendation, she was asked to review the appl ication again

based on information in the central abuse hotline.

3. From 1997 until June 2000, Petitioner operated a

registered day care. During the time the day care was operated,

Petitioner cared for approximately 25 children ranging in ages

from infa nt and up.

4. Prior to May 14, 2000, A.N. was enrolled at

Petitioner’s day care. His mother visited the facility at least

twice and was introduced to Petitioner's pet boxer, a medium

size dog who lived in the house with Petitioner. The mother

registere d no objections to the presence of the dog and knew the

dog would be around the children at the daycare. In fact, the

dog was very friendly and was very gentle with the children at

the daycare. Additionally, the children at the daycare liked to

play with the dog. The dog was not mean or vicious and had

never been so.

5. On May 11, 2000, A.N. was dropped off at the day care

by his mother. He stayed for approximately four hours. He was

picked up by his mother. During his stay at the day care, he

was f ed as instructed and was supervised appropriately by

Petitioner. He did have a difficult time being separated from

his mother. At no time was he left alone with Petitioner’s dog.

6. On May 12, 2000, A.N. was again dropped off by his

mother. He stayed approximately seven hours. He was fed

appropriately and adequately supervised during his stay. He was

crying due to separation from his mother. Petitioner saw A.N.’s

grandmother pull into the driveway and met her when she entered

the daycare. Petitione r’s dog licked A.N. in the face. The

dog’s tongue did not go into the child’s mouth. The dog never

snapped at the child and was never left alone with the child.

Petitioner gave the grandmother A.N.’s bottles and his teddy

bear. There was no dog feces o n any of A.N.’s things when he

left with his grandmother. A.N. did not return to the daycare.

7. On May 14, 2000, the Department received a report on

the central abuse hotline, Abuse Report No. 2000 - 076224. The

report alleged that Petitioner was inadeq uately supervising A.N.

because a large dog was alone with A.N., snapping at him and

licking the inside of his mouth, A.N.’s teddy bear had dog feces

on it, A.N.’s bottles were not refrigerated, A.N. was not fed

his food, and had physical injuries.

8. On May 15, 2000, the Department’s child protective

investigator along with a Sheriff’s deputy visited Petitioner’s

home unannounced. She found the home to be neat and clean. The

dog was friendly and did not show any signs of viciousness. In

fact, the visi t did not yield any information which would

support the allegations of the abuse report.

9. Later, the Department’s investigator interviewed A.N.’s

mother and grandmother. The bear had been washed. Based on

interviews with the mother and grandmother, t he Department

closed the report finding some indications of neglect in the

areas of inadequate supervision, inadequate food, and exposing a

child to dangerous conditions (the dog). However, neither the

grandmother nor the mother testified at the hearing a nd no

independent evidence was offered at the hearing to support the

allegations of the abuse report. Therefore, for purposes of

this licensure hearing there is no credible, non - hearsay

evidence to support the allegations made in the abuse report and

the report offers no basis to deny Petitioner’s application for

licensure as a family foster home. Moreover, the presence of a

dog in a home does not preclude licensure as a family foster

home. The Department’s own licensing standards checklist

reflects that a dog in a foster home must be currently

vaccinated and access to potentially dangerous animals must be

restricted. Petitioner met these criteria.

CONCLUSIONS OF LAW

10. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. Sections 120.57 and 120.60, Florida Statutes.

11. In 1997, Section 39.201(4)(a) and (e), Florida

Statutes, authorized the Department to establish a central abuse

hotline and established the uses of the information contained in

the central abuse hotline. Section 39.201(4)(a) and (e) states

in part:

(4)(a) The department shall establish a

central abuse hotline to receive all reports

made pursuant to this section, . . . which

any person may use to report known or

sus pected child abuse, abandonment, or

neglect.

* * *

(e) Information in the central abuse

hotline may not be used for employment

screening. Access to the information shall

only be granted as set forth in s. 415.51.

12. In 1998, Section 39.201(4)( e), Florida Statutes, was

renumbered as subsection (6) and amended to state:

(6) Information in the central abuse

hotline may not be used for employment

screening, except as provided in

s. 39.202(2)(a) and (h). Information in the

central abuse hotline and the department's

automated abuse information system may be

used by the department, its authorized

agents or contract providers, the Department

of Health, or county agencies as part of the

licensure or registration process pursuant

to ss. 402.30 1 - 402.319 and ss. 409.175 -

409.176.

13. Sections 409.175 and 409.176, Florida Statutes (2000),

deal with the licensure and registration of family foster homes.

Section 409.175(1)(f) states:

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

s. 120.52(9). A li cense 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 pu blic 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.

14. It is clear from the statutory language that the

Depar tment may use the information it finds in the central abuse

hotline in the licensure and re - licensure process for family

foster homes. The former, pre - 1997 central abuse registry

system was replaced by the central abuse hotline and the central

abuse regis try ceased to exist upon that replacement. What

happened to the central abuse registry records is unclear. What

is clear from the 1997 amendments is that verified abuse reports

no longer conferred a right to an administrative hearing since

no substantial interest of a person involved in the report was

impacted by the maintenance of such a report and the reports, by

themselves, did not constitute competent evidence in an

administrative hearing. Thus, the use by the Department of

information in the central abuse hotline is of limited value in

the licensure process when that information is challenged and a

formal administrative hearing is sought.

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

(2000), states in part:

(8)(a) The department may deny, su spend, 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).

16. Section 409.175(4)(a) , Florida Statutes (2000), states

in part:

(4)(a) The department shall adopt and amend

licensing rules for family foster

homes . . . The requirements for licensure

and operation of family foster homes . . .

shall include:

* * *

5. The good moral character based upon

screening, education, training, and

experience requirements for personnel.

17. Section 65C - 13.009(6)(b) and (e), Florida

Administrative Code, states in part:

(b) Screening. According to s. 409.175,

F.S., screening means the a ct of assessing

the background of personnel and includes,

but is not limited to, employment history

check, check of references, local criminal

records check through local law enforcement

agencies, fingerprinting, statewide criminal

records check through th e Department of Law

Enforcement, federal criminal records

through the Federal Bureau of Investigation

and abuse registry clearance .

* * *

(e) Abuse Registry Checks. Abuse Registry

checks are obtained annually for all family

foster homes. . . . (emphasis supplied)

18. Section 65C - 13.006(3), Florida Administrative Code,

states in part:

(3) Prior to the issuance of a new license,

the counselor must secure Abuse Registry and

law enforcement clearance for all adults who

reside in the home followi ng the procedures

outlined in this rule.

19. Both Rules 65C - 13.009 and 65C - 13.006, Florida

Administrative Code, cited above are pre - 1997 rules. Neither

rule references the current reporting system for child abuse.

Indeed the verified report involved in this case is not a report

listed in the abuse registry. It is one listed in the central

abuse hotline. Since the report is not an abuse registry

report, there is nothing for Petitioner to clear under the

Department's rules. Moreover, given the 1997 and 1998

amendments, the Department, in an administrative hearing, cannot

use the fact that a verified report exists to uphold a denial or

revocation of a license based solely on the information

contained in a verified report of child abuse. The reports, by

themselves, are not competent evidence. If the reports were

given such an effect, such reports would clearly involve a

substantive interest of a licensee or potential licensee and

would be subject to challenge under Chapter 120, Florida

Statutes. Therefo re, in an administrative hearing, the

Department must produce evidence of the underlying facts

contained in a verified report.

20. In this case, the Department has the burden of proof

to establish by a preponderance of the evidence that Petitioner

was guilty of neglect as reflected in the hotline abuse report.

The Department has not established that Ms. Springston was

guilty of any such neglect. On the other hand, Petitioner has

the burden to establish that she is entitled to be licensed as a

family f oster home. Petitioner has shown that she has met all

of the Department’s requirements for licensure. Since there was

no credible evidence substantiating the abuse report, it can

serve no basis for denying Petitioner’s license. Therefore,

Petitioner’s a pplication for licensure should be granted.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is hereby

RECOMMENDED that the Department of Children and Family

Services enter a final order granting Petitioner’s appli cation

for licensure as a family foster home.

DONE AND ENTERED this 30th day of August, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

DIANE CLEAVINGER

Administrative Law Judge

Division of Administrative Hearings

The De Soto 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 30th day of August, 2002.

COPIES F URNISHED :

Ralph J. McMurphy, Esquire

Department of Children and

Family Services

1601 West Gulf Atlantic Highway

Wildwood, Florida 34785 - 8158

Gregory Paules, Esquire

12421 North Florida Avenue

Tampa Law Center, Suite B - 122

Tampa, Florida 33612

Paul F . Flounlacker, Jr., Agency Clerk

Department of Children and

Family Services

1317 Winewood Boulevard

Building 2, Room 204B

Tallahassee, Florida 32399 - 0700

Josie Tomayo, General Counsel

Department of Children and

Family Services

1317 Winewood Boulevard

Building 2, Room 204

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 b e filed with the agency that

will issue the final order in this case.