02-001753 Thomas Stone And Shana Stone vs. Department Of Children And Family Services Status: Closed Recommended Order on Friday, August 16, 2002.

Summary: Preponderance of the evidence shows foster child received a bruise on his buttock and thigh while in the custody and control of Respondents. Further, Respondents did not report the bruise to the Department as required. Recommend revocation of license.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN )

AND FAMILY SERVICES, )

)

Petitioner, )

) Case No. 02 - 1753

vs. )

)

THOMAS STONE AND SHANA STONE, )

)

Respondents. )

)

RECOMMENDED ORDER

A hearing was held pursuant to notice, on July 17, 2002,

by Barbara J. Staros, assigned Administrative Law Judge of the

Division of Administrative Hearings, in Brooksville, Florida.

APPEARANCES

For Petitioner: Ralph J. McMurphy, Esquire

Department of Children

and Family Services

1601 West Gulf Atlantic Highway

Wildwood, Florida 34785

For Respondents: R. Eric Rubio, Esquire

2407 East Bloomingdale Avenue

Valrico, Florida 33594 - 6404

STATEMENT OF THE ISSUE

The issue in this proceeding is whether the Department of

Children and Family Services should revoke the foster care

license of Thomas and Shana Stone.

PRELIMINARY STATEMENT

By letter dated March 29, 2002, the Department of

Children and Family Service s (Department) advised Respondents,

Thomas and Shana Stone, that their home would not be

relicensed as a foster home. The letter based this decision

on a Florida Abuse Hotline Information System report received

by the Department on November 16, 2001, alle ging physical

abuse by the foster mother. The letter cited Section

409.175(8), Florida Statutes, and Rules 65C - 13.009(1)(e)10.,

and 65C - 13.010(1)(b)5. and (4)(j), Florida Administrative

Code, as authority for the decision.

Petitioners disputed the allegat ions of the March 29,

2002, letter and requested an administrative hearing. The

Department forwarded the request for a hearing to the Division

of Administrative Hearings on or about May 3, 2002. A formal

hearing was scheduled for July 17, 2002.

At the co mmencement of the hearing, counsel for the

Department clarified the status of the Stones' licensure.

That is, because the Stones' foster care license was not

scheduled to expire until August 8, 2002, the action sought by

the Department was revocation of t he license rather than

nonrenewal as stated in the March 29, 2002, letter.

Accordingly, the hearing proceeded as a license revocation

hearing and the parties have been realigned to reflect the

Department as Petitioner and the Stones as Respondents.

At hea ring, Petitioner presented the testimony of two

witnesses, JoAnn Lycett and Susan Sentman. Petitioner's

Exhibits numbered 1 and 2 were admitted into evidence.

Respondent Shana Stone testified on her own behalf.

Respondents did not offer any exhibits int o evidence.

The hearing was not transcribed. The parties timely

filed Proposed Recommended Orders which have been considered

in the preparation of this Recommended Order.

FINDINGS OF FACT

1. At all times material to this proceeding, the home of

Thomas and Shana Stone was licensed by the Department as a

foster home.

2. Jeffrey G. was placed in the Stones' home on or about

November 9, 2001, when he was approximately 10 months old.

Two other children, who were eleven and four - year - old

siblings, were als o placed in the Stones' home around the same

date that Jeffrey was placed in their home. The three

children slept in the same bedroom which contained a bunk bed

and a crib. According to Mrs. Stone, the siblings were unruly

and she requested that the Depa rtment remove them from their

home. The other children were removed from the home on

November 12, 2001.

3. On November 16, 2001, the Department received a

report alleging that Jeffrey had a bruise three inches in

length on his thigh.

4. Jeffrey was brought to the Department's office by a

foster care worker on November 16, 2001, for a scheduled visit

with his mother. There is nothing in the record to indicate

that Jeffrey was brought to the Department on November 16,

2001, as a result of the abuse al legation.

5. Joann Lycett is a licensed protective investigator

supervisor for the Department. Prior to becoming a

supervisor, she was a protective investigator. During the

time she has been an investigator and a supervisor, she took

part in between 400 to 500 reports of child abuse or neglect.

In addition to her experience as an investigator and a

supervisor, Ms. Lycett received specialized training in child

abuse investigations and earned certification in the child

protection field. Her training incl udes determining the

nature and cause of injuries to children.

6. Ms. Lycett was present at the Department when Jeffrey

was brought in for the visit. She observed an oval shaped

bruise approximately three inches by two inches extending out

from under the child's diaper onto his upper thigh. When the

diaper was removed, Ms. Lycett could see bruising on the

child's buttock as well.

7. Ms. Lycett observed the bruise to be dark which was

an indication to her that the bruise was recent as opposed to

a bruise yellow or green in color. From her experience and

training, the bruise did not appear to be accidental.

8. Jeffrey was examined on November 16, 2001, by Richard

Cump, a Child Protection Team medical doctor of the

University of Florida. 1 Drump's report reads in part:

. . . on the buttocks there are some

fairly fresh vertical and linear 1mm wide

bruises which are external to the buttock

crease. There is a 7x3cm bruise on the

left buttock below the aforementioned

linear bruises, which ends in a circular

bruise at the lower left buttock. The thin

linear bruises come together perfectly when

the buttocks are compressed flat. All of

the bruises are fairly superficial and are

red and blue in color; no yellow or green

is present. There are no bruis es medial to

the linear bruises in the crease of the

buttocks.

9. Mrs. Stone first observed the bruise the morning of

November 16, 2001. Mrs. Stone did not report the bruise to

the Department.

10. Jeffrey generally attended daycare from seven or

ei ght o'clock in the morning until 5:30 or 6:00 in the

evening. Jeffrey attended day care on November 16, 2001.

Mrs. Stone conceded that the bruise could not have happened at

the daycare center because she observed the bruise the morning

of November 16, 20 01, before Jeffrey attended the center.

11. According to Mrs. Stone, Jeffrey wore a brace on his

leg which caught on the crib a couple of days before the

incident. This, however, would not explain a fresh bruise as

described by Ms. Lycett and supported b y Drump's report.

Likewise, the other foster children could not have caused the

bruise as they were removed from the home four days prior to

the incident in question.

12. While the evidence did not prove that Mrs. Stone

directly caused the injur y, the evidence did prove that the

child suffered harm while in the custody and control of

Respondents.

CONCLUSIONS OF LAW

13. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter in this case.

14. The Depar tment is the agency charged with the

responsibility of licensing foster homes. Section 409.175,

Florida Statutes.

15. The Department seeks revocation of the Stones'

foster care license. Accordingly, as the party asserting the

affirmative of an issue bef ore this administrative tribunal,

the Department has the burden of proof. Florida Department of

Transportation v. J.W.C. Company, Inc. , 396 So. 2d 778 (Fla.

1st DCA 1981). However, in accordance with the definition of

"license" contained in Section 409.1 75(2)(f), Florida

Statutes, the licensure status previously awarded to

Respondents is not a professional license and does not create

a property right. Therefore, the Department must establish

facts which support its position by a preponderance of the

evid ence rather than by the clear and convincing standard

normally imposed in professional license cases. Department of

Banking and Finance v. Osborne Stern Company , 670 So. 2d 932

(Fla. 1996).

16. In its letter of March 29, 2002, the Department

relies in part on Section 409.175(8), Florida Statutes, which

reads in pertinent part as follows:

(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, suspens ion, 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 .

17. The Department also relies on Rule 65C -

13.009(1)(e)10., Florida Administrative Code, which reads as

follows:

(e) The goal of the Group Preparation and

Selection Program is to prepare individuals

and families to make an informed decision

about beco ming foster or adoptive families.

The decision is made with the department

and is based on the capability and

willingness to take on the "role" and

develop the skills needed to foster or

adopt. Foster and adoptive families who

make good decisions and gro w in their new

roles work best with the department, birth

families and others. These partnerships

help children and youth have stability and

permanence with a family. As

successful foster and adoptive parents you

must be able to:

* * *

10. Assure health and safety. Provide a

healthy and safe environment for children

and youth and keep them free from harm.

18. Finally, the Department relies on Rule 65C -

13.010(1)(b)5. and (4)(j), Florida Administrative Code, which

read in pertinent part as follo ws:

(1) Responsibilities of the Substitute

Parent to the Child.

* * *

(b) Family Care Activities.

5. Discipline.

a. The substitute care parents must

discipline children with kindness,

consistency, and understanding, and with

t he purpose of helping the child develop

responsibilities with self - control.

* * *

f. The substitute care parents must not

use corporal punishment of any kind.

* * *

(4) Responsibilities of the Substitute

Care Parents to the Depar tment

(j) The substitute care parents must

notify the department immediately of

illness or accidents involving the child.

19. The evidence presented does not establish that

Respondents used corporal punishment on Jeffrey. However, the

preponderan ce of the evidence shows that Jeffrey received the

bruise while in the custody and control of Respondents,

thereby failing to keep the child free from harm in violation

of Rule 65C - 13.009(1)(e)5., Florida Administrative Code.

20. Further, Respondents did not report the bruise to

the Department, thereby violating Rule 65C - 13.010(4)(j),

Florida Administrative Code.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law set forth herein, it is

RECOMMENDED:

That the Department o f Children and Family Services enter

a final order revoking the foster care license of the Stones.

DONE AND ENTERED this 16th day of August, 2002, in

Tallahassee, Leon County, Florida.

BARBARA J. STAROS

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 (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 16th day of August, 2002.

ENDNOTE

1/ The doctor did not testify. The doctor's report was

received into evidence pursuant to Section 120.569(2)(g),

Florida Statutes. The portion of the r eport which describes

the bruise, while hearsay, supplements Ms. Lycett's testimony

describing the bruise and, therefore, supports findings of

fact as contemplated by 120.57(1)(c), Florida Statutes.

However, the portion of the report containing his opinio n as

to the cause of the bruise goes beyond Ms. Lycett's

description of the bruise, is hearsay, and is not competent to

support a finding of fact as contemplated by Section

120.57(1)(c), Florida Statutes.

COPIES FURNISHED :

Ralph J. McMurphy, Esquire

Department of Children

and Family Services

1601 West Gulf Atlantic Highway

Wildwood, Florida 34785

R. Eric Rubio, Esquire

2407 East Bloomingdale Avenue

Valrico, Florida 33594 - 6404

Paul F. Flounlacker, Jr., Ag ency 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

Building 2, Room 204B

1317 Winewood B oulevard

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.