02-004276 Thomas Beute And Libby Beute vs. Department Of Children And Family Services Status: Closed Recommended Order on Tuesday, May 27, 2003.

Summary: Department demonstrated that Petitioner negligently left foster child alone in van on two separate occasions, warranting revocation of foster home license.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THOMAS BEUTE AND LIBBY BEUTE, )

)

Petitioners, )

)

vs. ) Case No. 02 - 4276

)

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Respondent. )

)

RECOM MENDED ORDER

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

on April 1, 2003, in Daytona Beach, Florida, before the Division

of Administrative Hearings by its Administrative Law Judge,

Diane Cleavinger.

APPEARANCES

For Petitioners: Thomas Beute, pro se

Libby Beute, pro se

817 Bayridge Lane

Port Orange, Florida 32127

For Respondent: George P. Beckwith, Jr., Esquire

Department of Children and

Family Services

210 North Palmetto Avenue, Suite 412

Daytona Beach, Flor ida 32114 - 3269

STATEMENT OF THE ISSUE

Whether Petitioner's license as a family foster home should

be disciplined.

P RELIMINARY STATEMENT

By letter Petitioners were informed by Respondent,

Department of Children and Family Services, that their license

as a family foster home would be revoked. Specifically the

letter advised Petitioners that the revocation was based on two

incidents that occurred on May 23, 2001, and December 2001,

where Petitioner Libby Beute allegedly left an infant child

unattended in her vehicle. Petitioners disagreed with

Respondent's decision and requested a formal administrative

hearing.

At the hearing, Petitioner Libby Beute testified in her own

behalf and called three additional witnesses. Petitioners

offered into evidence t wo exhibits, of which one was a composite

exhibit. Respondent called three witnesses to testify and

offered two exhibits into evidence.

After the hearing, Respondent filed a Proposed Recommended

Order on April 14, 2003. Petitioners filed a Proposed

Reco mmended Order on April 16, 2003.

FINDINGS OF FACT

1. In 2002, Petitioners were licensed by the Department of

Children and Family Services (DCFS) as a family foster home

holding License No. 01 - 0203 - 03. Petitioners provided foster

services through Neighb or to Families, Inc.

2. On May 23, 2001, Petitioner Libby Beute (Ms. Beute)

parked her van in a loading zone at the Sunshine Mall. At the

time, she had an infant foster child riding with her in his car

seat. She was there to deliver a package. She exi ted her

vehicle, walked to the back and opened the back hatch door. She

left the keys in the ignition and the van running. The air

conditioning was on when Ms. Beute took out the baby stoller and

the package. She placed the package in the stroller and e ntered

the mall to deliver the package.

3. Mr. Dyksema was the security guard on duty at the

Sunshine Mall on May 23, 2001. Mr. Dyksema saw Ms. Beute's blue

van parked in a loading zone with the back hatch door opened.

Even though the van was running a nd not knowing the infant was

inside, he closed the van's back hatch door because he

considered it a safety risk for patrons walking in and out of a

restaurant within the mall. When the security guard closed the

door, it locked all the van's doors. At le ast six minutes

elapsed between the time he closed the van door and the time

Ms. Beute came out of the mall. When Ms. Beute came out of the

mall, she was very distraught, screaming, and asking why

Mr. Dyksema closed the van door since the van was now lock ed and

an infant was inside the van.

4. Eventually, the van was opened and the child, who had

slept through the whole incident, was retrieved from the car.

5. Around June 5, 2001, as a result of a complaint that

Ms. Beute left a child unattended at the Sunshine Mall,

Gail Biro met with Ms. Beute. Ms. Beute was very remorseful

about the incident and quite distraught during the meeting.

Ms. Biro and Ms. Beute entered into a written "corrective action

plan," whereby Ms. Beute agreed that children in her care would

not be left unattended in her car even if the car were in full

sight. Ms. Biro testified that she read the corrective action

plan to Ms. Beute and that Ms. Beute, although very upset,

seemed to understand the corrective action plan. Ms. Beute

signed the corrective action plan.

6. In early December 2001, Ms. Beute parked her van at an

elementary school so that she could drop off one of her foster

children at that school. An infant foster child was in his car

seat in the van. Ms. Beute left h er van with the side door open

while she walked the elementary student toward class. She never

lost sight of the van and was only out of the van a short time.

The first incident, while the most serious and neglectful, was

forgiven by her supervisor becau se she felt Ms. Beute would not

repeat the same mistake. The second incident did not amount to

neglect but is troubling because Ms. Beute, probably unthinking,

violated the corrective action plan. The ability to trust her

representations are now in quest ion. Therefore, revocation is

an appropriate remedy.

7. Later Ms. Biro received a complaint from school

officials reporting that Ms. Beute left an infant child in her

van unattended in early December 2001, while Ms. Beute walked

another foster child to class. Ms. Beute admitted to leaving

the child in the van unattended only for a short time and that

the van was in full sight at all times. The second incident

resulted in a recommendation that Petitioners' foster care

license be revoked.

8. Ms. Beute a dmitted that on May 23, 2001, and early

December 2001, children were left in her van unattended.

However, she never lost sight of the van or the children.

Ms. Beute admitted to signing the June 2001 corrective action

plan, but now claims that she did not read the plan carefully

and that she did not understand the plan.

9. Other than these two incidents and even though

Ms. Beute is somewhat disorganized, Ms. Beute was considered to

be an excellent foster parent in caring for the children placed

in her charge.

CONCLUSIONS OF LAW

10. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject mater of this

proceeding. Section 120.57, Florida Statutes.

11. Pursuant to Section 409.175(9)(a), Florida Statutes

(2002), DCFS has the authority to deny, suspend, or revoke a

foster care license. Pursuant to Section 409.175(9)(b), Florida

Statutes (2003), a negligent act, which materially affects the

health or safety of children in the foster home, is a ground for

taking such ac tion. In the instant case, Ms. Beute clearly

committed a negligent act on May 23, 2001, when she left an

infant child in her van with the back hatch door opened and the

keys in the ignition. On June 6, 2001, Ms. Beute entered into a

written corrective ac tion plan whereby she agreed that no

children would be left in her car unattended even if the car is

in full sight. Notwithstanding the corrective action plan, in

early December 2001, Ms. Beute once again left a child in her

van unattended. Such action w as in direct violation of the

corrective action plan.

12. In this case, DCFS has proven, by a preponderance of

the evidence, that Petitioners' license to provide foster care

should be revoked. Such revocation is justified as a result of

Ms. Beute's leavi ng children alone in a van unattended on at

least two occasions. Ms. Beute's actions on May 23, 2001, and

again in December 2001, were dangerous and could have caused the

health, safety, or welfare of the children in her care to be

significantly impaired. Ms. Beute had been warned of her

inappropriate actions and entered into a written corrective

action plan wherein she agreed that she would not leave children

in her car unattended even if the car was in full sight.

RECOMMENDATION

Based on the foregoing Findings of Facts and Conclusions of

Law, it is

RECOMMENDED:

That a final order be entered denying Petitioners' license

as a family foster home.

DONE AND ENTERED this 27th day of May, 2003, in

Tallahassee, Leon County, Florida.

________________________ ___________

DIANE CLEAVINGER

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 wit h the Clerk of the

Division of Administrative Hearings

this 27th day of May, 2003.

COPIES FURNISHED :

George P. Beckwith, Jr., Esquire

Department of Children and

Family Services

210 North Palmetto Avenue

Suite 412

Daytona Beach, Florida 32114 - 3269

Th omas Beute

Libby Beute

817 Bayridge Lane

Port Orange, Florida 32127

Paul F. Flounlacker, Agency Clerk

Department of Children and

Family Services

1317 Winewood Boulevard

Building 2, Room 204B

Tallahassee, Florida 32399 - 0700

Josie Tomayo, General Couns el

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 th is Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the final order in this case.