02-001960 Travis Davis vs. Department Of Children And Family Services Status: Closed Recommended Order on Monday, September 9, 2002.

Summary: Evidence insufficient to warrant foster care license revocation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TRAVIS DAVIS, )

)

Petitioner, )

vs. ) Case No. 02 - 1960

)

DEPARTMENT OF CHI LDREN AND )

FAMILY SERVICES, )

)

Respondent. )

_______________________________)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted in this

case on July 12, 2002, via vid eo teleconference at sites in

Miami and Tallahassee, Florida, before Administrative Law Judge

Florence Snyder Rivas, of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Travis Davis, pro se

2922 Northwest 92 nd Street

Miami, Florida 33147

For Respondent: Rosemarie Rinaldi, Esquire

Department of Children and

Family Services

401 Northwest Second Avenue

Suite N - 1014

Miami, Florida 33128

STATEMENT OF THE ISSUE

At issue is whether Petitioner’s foster home license should

be revoked.

PRELIMINARY STATEMENT

By letter dated April 1, 2002 , the Department of Children

and Family Se rvices (the Department or DCF) notified Petitioner,

Travis Davis (Petitioner or Davis), of its intent to revoke his

foster home license pursuant to Florida Administrative Code,

Rule 65C - 13, for violation of minimum standards.

Petitioner timely requested an administrative hearing,

which was held on July 12, 2002. Petitioner testified on his

own behalf and also presented the testimony of Marquita Parker

and Leila Hill.

The Department presented the testimony of Lucius Daniel and

Lisa Ellis, and introduced two exhibits into evidence.

The transcript of the final hearing was filed on August 12,

2002. A timely agreed motion for additional time to submit

proposed recommended orders was made, and an enlargement of time

was granted through August 26, 2002. DCF timely filed a

Proposed Recommended Order which has been carefully considered;

Petitioner advised DOAH that he did not desire to make a written

submission.

FINDINGS OF FACT

1. Petitioner holds a bachelor's degree in social work

from Florida Internationa l University. Since his graduation in

December 1995 he has been steadily employed in a variety

of positions which involve dealing with foster children and

special education students.

2. Davis' employment included work for the Department as a

foster ca re counselor and a protective investigator. In

addition, he has a long history of involvement in his church,

including teaching Sunday school and volunteer work with youth

in the community.

3. Relatives, including a mother and sister, live in the

area an d are supportive of his desire to continue as a foster

parent.

4. For all these reasons, the Department held high hopes

for Davis as a foster parent when he sought and received a

foster home license in the fall of 2001.

5. Notwithstanding his extensiv e experience with

exceptionally needy children Davis was required to and did

attend the 30 - hour training course required of all new foster

parents.

6. Davis, like all foster parents, entered into a detailed

contractual agreement with DCF which sets forth the obligations

of foster parents and states that non - compliance will lead to

revocation of the license.

7. The contract is lengthy, but for purposes of this case

it suffices to say that it obligates foster parents to provide

adequate, age - appropriate s upervision at all times. In order to

assist the foster parents in fulfilling this and other

obligations, DCF is contractually obligated to support foster

parents in a number of ways. The foster parent must be informed

in as much detail as is available to DCF of a child's special

needs or limitations. If the child is taking prescribed

medication, DCF is obliged to provide the medication when the

child is brought to the foster home, along with instructions for

administering the drug. DCF is also required to exercise

professional judgment when placing a child in a foster home to

assure, to the extent possible, that the foster parent is

capable of managing the child.

8. Shortly after Davis was licensed, DCF assigned to him a

particularly difficult child, K .N. At the time K.N. was brought

to Davis on December 4, 2001, the child, a boy, was 12 years

old. Davis was informed that K.N. was on medication, but DCF

did not provide the medication. Davis made several efforts to

secure the medication for K.N., but he was not successful.

9. At the time K.N. was placed in Davis' home, Davis

already had one foster child, D.L. Davis had previously

committed to D.L. and to other neighborhood teenagers to take

them in his van to the Soul Bowl high school football game in

Tallahassee on December 9, 2001.

10. The trip was uneventful until the return drive.

During the trip back from Tallahassee, K.N.’s difficult behavior

irritated the other children. In the ensuing horseplay, K.N.

ended up with his pants down for appr oximately the final hour of

the return trip.

11. Details of the incident are impossible to state with

certainty. The Department presented no testimony of any

individual with personal knowledge of the incident. Davis and a

teenage girl who was on the t rip testified to their

recollections. The undersigned, having carefully viewed their

demeanor under oath, credits their testimony as candid; they

were clear and precise with regard to elements of the day that

they did recall, and honest in stating where t heir recollections

were imprecise.

12. The Department repeatedly asserts that K.N. was

"naked" but the use of this word, as it is commonly understood,

is unsupported by any competent evidence. It cannot be

ascertained from the record, for example, wheth er K.N. was

wearing underwear as well as pants, and if so, were the

underwear pulled down as well? The only direct testimony

regarding whether or not K.N.'s genitals were exposed to the

other children was offered by Davis, who believes that K.N.'s

genital s were always covered. K.N. and D.L. denied any improper

touching to DCF's investigator, according to his written report.

13. After years of driving youth from his church and

community on field trips, Davis, like anyone who drives carloads

of children, had learned to filter out background noise in order

to focus on safe driving. Yet, like anyone responsible for a

vanload of kids, he also had to remain cognizant of behaviors in

the back seat(s). At some point, Davis became aware that there

was an issue concerning K.N.'s pants. Davis, as well as the

teenage passengers in the car, acting on Davis' instructions,

made efforts to convince K.N. to get his pants back up. K.N.

refused. It was raining for at least a portion of the time

while Davis was attempti ng to deal with the situation from the

driver's seat.

14. The testimony offered by Davis on his behalf

establishes that the situation among the children, particularly

K.N., could have been dealt with more aggressively and with

better results. The wiser c ourse would have been for Davis to

pull over, rearrange seating, verbally re - direct K.N. and the

other passengers, and, as a last resort, summon the police.

15. It is equally clear that Davis was the only adult in

the car and responsible to deliver the c hildren home safely on a

rainy day. He had tuned out the back seat noises to focus on

driving when it seemed reasonable to do so, and, once aware of

the situation with K.N.'s pants, decided to manage it as best he

could from the driver's seat and get eve ryone back home as

quickly as possible.

16. The situation was resolved when Davis drove his van to

the north Dade home of Davis’ sister, who had a good rapport

with K.N. K.N. complied promptly with her instruction that he

get himself properly dressed.

17. Soon after the trip, K.N. related a lurid and

untruthful version of events to a third party. A complaint

against Davis to the state's child abuse hotline resulted.

18. Davis felt mistreated by the DCF investigator who was

dispatched to look into the allegations. Davis perceived that

the investigator had prejudged the complaint and deemed Davis to

be guilty of participating in and/or allowing sexual abuse of

K.N.

19. Rather than complain to the supervisor of the

investigator who offended him, Dav is made another bad

decision --- he refused to honor the investigator's request that

he provide the names and whereabouts of the other passengers in

the van.

20. Davis' failure to provide this information immediately

was not deemed by DCF as a serious e nough offense to warrant

immediate removal of the foster children. Nor did it prejudice

DCF in these proceedings, for Davis did provide the names to DCF

well in advance of the final hearing.

21. Davis' refusal to provide the names when first asked

to do so was self - defeating in the extreme, for the passengers

were in a position to corroborate what the investigator was told

by both foster children: that Davis had not provoked the removal

of K.N.'s pants, and had made efforts to ameliorate the

situation as soon as he became aware of it, and was successful

to the extent that the other children cooperated with his

request to encourage K.N. to pull his pants up, which K.N. was

fully capable of doing.

22. The Department contends that "there is no amount of

addi tional training or any other remedial action (short of

license revocation) that would alleviate the Department's

concern about [Davis'] ability to provide proper care and

supervision to foster children."

23. This contention is rejected for two reasons: F irst,

although the substance of DCF's investigation was completed by

December 12, K.N. remained in Davis' home until December 17, at

which time Davis realized that he was not capable of handling

K.N.'s behaviors and returned him to the custody of his foste r

care counselor. Second, Davis requested and received DCF's

permission to keep his other foster child, D.L. "through the

holidays." That time frame was generously interpreted by DCF

staff; they did not take D.L. from Davis' care until February 8,

2001.

24. Davis is appropriately regretful that he was not

adequate to the task at hand on December 9. He also understands

the inappropriateness of failing to fully cooperate with DCF's

investigation in a timely fashion. Although the future is

impossible to p redict, it is reasonable to credit Davis' word

that he has learned from these mistakes.

25. Davis is willing to unconditionally accept additional

training, supervision, and assistance from DCF.

CONCLUSIONS OF LAW

26. The Division of Administrative Hear ings has

jurisdiction over the parties and the subject matter of this

proceeding. Section 120.57(1), Florida Statutes.

27. The law governing this proceeding is undisputed.

Section 409.175(1)(f), Florida Statutes, reminds that although

anyone may have a child of his own, the opportunity to foster a

child whose parents have proved unable or unwilling to care for

him is a privilege, not a legal right:

A license under this section is issued to

a family foster home or other facility and

is not a professio nal 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 fac t or trier of law at any

administrative proceeding or court action

initiated by the department.

28. The privilege, however, may not be arbitrarily

withdrawn, and for purposes of this case the undersigned accepts

paragraph 15 of the Department's Proposed Recommended Order,

which states: "The Department has the burden of proof in this

proceeding. Because the Petitioner is not entitled to the

license, the Department must only provide a specific reason for

the revocation of Petitioner’s foster home license and present

competent evidence supporting the proffered reason. See

Department of Banking and Finance v. Osborne Stern and Co. , 670

So. 2d 932 (Fla. 1996)."

29. Section 409.175(4)(a), Florida Statutes, gives the

Department of Children and Families the authority to "adopt and

amend licensing rules for family foster homes.” Those rules are

set out in Rule 65C - 13, Florida Administrative Code. The bar is

properly set high.

30. Rule 65C - 13.009, Florida Administrative Code,

describes the philosophy which c urrently guides the state's

foster care program, and also sets forth specific qualities

which are necessary if the foster parents are to ". . . grow in

their new roles. . . ."

31. The Rule is suffused with references to the

partnership that must exist amo ng DCF staff, foster parents,

and, if applicable, other individuals involved either

professionally or personally with the child's life.

32. Davis' judgment as the Soul Bowl trip wound its way

back to Miami was imperfect, but not so imperfect as to

establi sh that K.N. was damaged in any way, or that Davis is

incapable of "grow[ing] in [his] new role."

33. DCF has failed to establish that Davis, in DCF's

words, "failed to properly supervise the foster children in his

care, and in particular, failed to prote ct K.N. from sexual

exploitation by the older children on the trip." DCF did not

present a shred of evidence that K.N. was sexually exploited.

Indeed, DCF presented no testimony from any individual with

first - hand knowledge of the trip.

34. All of the c ompetent evidence in this case was

presented by Davis, and not discredited in any way by DCF. It

establishes that Davis was in over his head with K.N. in

general, and on that trip in particular. DCF bears some

responsibility in this matter. Despite its contractual promises

of full support to foster parents, DCF gave Davis, a person new

to foster parenting, an unmanageable child, without necessary

medications, and expected him to be able to handle it because he

had a college education in social work and p rofessional

experience with disturbed children.

35. Yet, there is no authority for DCF's view that a well

educated foster parent may be held to a higher standard of

parental competence, or is entitled to less that full disclosure

and support from DCF rega rding the problems a child brings to

the home. The skills involved in being a parent are simply not

the same as the skills involved in working with troubled

children who are fed, clothed and sheltered by someone else.

36. Given the fact that DCF elected to leave K.N. with

Davis until Davis gave up on the relationship, and permitted

D.L., who wanted to remain with Davis, to stay in his home for

nearly two months after the alleged inexcusably inadequate

supervision, it is not logical to conclude that "no a mount of

additional training or other remedial action short of revocation

of the foster home license . . . would assure the Department

that any other foster children would be safe if entrusted to the

care of Davis."

37. It may be that Davis will never be competent to care

for a child with K.N.'s extreme difficulties. But it cannot be

concluded on this record that Davis is not competent to foster

any child. To the contrary, the record suggests that with

additional training and/or mentoring; and with a bet ter match of

Davis' abilities and relative inexperience as a foster parent

with the pool of children in need of foster care, Davis can be

successful, as he appears to have been, in DCF's view, with

D.L., and that some foster children would be able to make

progress in his home.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Department issue a final order

dismissing the April 1, 2002, charges against Davis.

DONE AND ENTERED this 9th day of Septemb er, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

FLORENCE SNYDER RIVAS

Administrative Law Judge

Divis ion of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9 675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 9th day of September, 2002.

COPIES FURNISHED:

Travis Davis

2922 Northwest 92nd Street

Miami, Florida 33147

Rosemarie Rinaldi, Esquire

Department of Children and

Family Services

401 Northwest Second Avenue

Suite N - 1014

Miami, Florida 33128

Paul F. Flounlacker, Jr., Agency Clerk

Department of Children and

Family Services

1317 Winewood Boulevard

Building 2, Room 204B

Tallahassee, Florida 32399 - 0700

Josefina Tomayo, General Counsel

Department of Children and

Family Services

1317 W inewood Boulevard

Building 2, Room 204

Tallahassee, Florida 32399 - 0700

Jerry Regier, Secretary

Department of Children and

Family Services

1317 Winewood Boulevard

Building 1, Room 202

Tallahassee, Florida 32399 - 0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIO NS

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.