02-004311 Alfonso Zapata And Lynda Zapata vs. Department Of Children And Family Services Status: Closed Recommended Order on Tuesday, April 15, 2003.

Summary: The evidence demonstrated the application for foster home license should be denied.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ALFONSO ZAPATA AND LYNDA )

ZAPATA, )

)

Petitioners, )

)

vs. ) Case No. 02 - 4311

)

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was conducted in this case on February 10,

2003, in Tallahassee, Florida, before the Division of

Administrative Hearings by its Administrative Law Judge, Diane

Cleavinger.

APPEARANCES

For Petitioners: Alfonso and Lyn da Zapata, pro se

eeline Drive

Tallahassee, Florida 32303

For Respondent: John R. Perry, Esquire

Department of Children and

Family Services

2639 North Monroe Street, Room 252 - A

Tallahassee, Florida 32399 - 2949

STATEMENT OF THE ISSUES

Whether Respondents should be granted a family foster home

license.

PRELIMINARY STATEMENT

Petitioners, Alfonso and Lynda Zapata (Petitioners), filed

an application for licensure as a family foster care home. By

letter dated September 18, 2 003, Respondent, Department of

Children and Family Services (Department), denied Petitioners'

application. Petitioners requested a formal hearing on the

Department's denial.

At the hearing, Petitioners did not call any witnesses to

testify and did not in troduce any exhibits into evidence.

Respondent called three witnesses to testify but did not

introduce any exhibits into evidence.

After the hearing, Petitioner and Respondent filed Proposed

Recommended Orders on February 19, 2003.

FINDINGS OF FACT

1. Petitioners, Alfonso and Lynda Zapata, applied to be

licensed as a family foster home care with the Department

through the Devereux Foundation. The Devereux Foundation

maintains a network of foster homes to serve parents who need to

temporarily place the ir children in foster care (private

placements) and dependent children in the custody of the

Department (public placements). Previously, Petitioners had

been licensed as a family foster care home with the Department

through Florida Baptist Children's Home (Florida Baptist). Like

the Devereux Foundation, Florida Baptist maintains a network of

foster homes to serve parents who need to temporarily place

their children in foster care and dependent children in the

custody of the Department. Petitioners had wi thdrawn form the

relationship with Florida Baptist after a disagreement with

Florida Baptist personnel over the removal of a child from their

home and reunification of that child with her mother.

2. In 2001, about half of the children placed in Florida

Baptist's homes were placed by the Department in connection with

cases of child abuse, or abandonment, while the other half were

private placements by families whose circumstances necessitated

that their children temporarily reside elsewhere.

3. In July 2001, Petitioners had two foster children

living in their home. One of these children, T.D., also known

as J., had been placed in the Petitioner's home by the

Department. The other, C.R., a three - month - old boy, had been

privately placed in the home by F lorida Baptist at the request

of the child's mother, E.R., who was single.

4. E.R. had placed her child in Florida Baptist care

because she had enlisted in the United States Army and was

undergoing basic training out of state. E.R. had enlisted in

order to provide her family a better life. It was initially

anticipated that E.R. would be gone six months, but due to

injuries sustained during basic training, she was actually gone

for eight or nine months. There was no evidence of abuse,

neglect or abandon ment on E.R.'s part.

5. During C.R.'s stay, Petitioners developed a negative

impression of E.R. They did not think that E.R. called or wrote

frequently enough. Petitioners had commented to Florida Baptist

staff that E.R. was an unfit mother, that Petit ioners provided

C.R. with a better home than E.R. could, that E.R. did not love

C.R., and that Petitioners could love C.R. more than E.R. could.

Petitioners' opinion was based on their belief that no really

good mother would take a job which required her to be away from

her child for extended periods and a belief that C.R.'s

grandmother was physically abusive towards C.R. Unfortunately,

Petitioners let their beliefs about appropriate parenting

interfere in their duties as foster parents to aid in

reunific ation of a child with that child's legal parents.

6. Florida Baptist staff also believed that Petitioners

had become too attached to C.R., which caused them to attempt to

undermine the Department's later attempts to reunify mother and

child at the plann ed time E.R. would return from basic training

and be able to provide a home to C.R.

7. In late July 2001, Florida Baptist staff also became

concerned about other behavior exhibited by Petitioners

involving confidentiality issues and concerned that the

De partment had removed T.D. (aka "J.") from Petitioners' home.

8. The behavior concerning confidentiality arose because

Mrs. Zapata had discussed the fitness of E.R. to be C.R.'s

custodial parent with a Department employee. C.R. was not a

Department plac ement. However, it should be noted that the

discussion was with a Department employee involved in the

fostering program. Such an employee could reasonably be viewed

as a person to report any suspected abuse or neglect to. In

this instance, the conversat ion did not involve a report of

abuse or neglect, but concerned Petitioners' belief that E.R.

was not a good mother. On the other hand, the evidence was

unclear whether the same confidentiality requirements regarding

public placements by the Department ap pertain to private

placements by the parents. The incident does cast doubt on

Petitioners' awareness and desire to comply with privacy

considerations should they be licensed by the Department.

9. During the month of July 2001, T.D., also known as

"J.", lived in Petitioner's home. T.D. was a little less than a

year old at the time and had been placed in Petitioner's home by

the Department because of ongoing juvenile dependency

proceedings.

10. On July 31 or August 1, 2001, the Department

counselor, Wend y Cheney, picked T.D. up at Petitioner's home to

take him to a doctor's appointment. Ms. Cheney noticed that

there were crumbs and dirt in the car seat in which Petitioners

had placed T.D. Ms. Cheney also noticed that T.D.'s clothes and

diaper bag had a strong odor of spoiled milk. A crust also

appeared on the nipple of the baby bottle and the eye medicine

bottle Mrs. Zapata gave her to take with T.D. to the physician's

appointment.

11. During the preceding month, Ms. Cheney had visited

Petitioners' hom e on at least a weekly basis to monitor T.D.'s

situation. On many of these occasions, Ms. Cheney also observed

that T.D.'s clothes had the same sour milk smell she experienced

during the doctor's appointment. She also noticed during these

visits that the nipples of T.D.'s baby bottles were not properly

covered. On one occasion, Ms. Cheney saw T.D. drop his pacifier

and then observed Mrs. Zapata pick it up and replace it in

T.D.'s mouth without washing it off. This is of particular

concern, as Petitioner s had a long - haired dog whose hair was

apparent on the floor of Petitioners' home. The Department

removed T.D. from Petitioners' home because of these

observations. Again, these observations cast serious doubt on

the quality of hygienic care provided by Petitioners to foster

children. There was no evidence offered to contradict the

apparent lack of good hygienic care provided to T.D. However,

there was also no evidence that Petitioners' care of T.D.

constituted neglect or abuse of T.D., since a finding of neglect

or abuse requires demonstration of harm or significantly

dangerous conditions.

12. Because of these concerns, Florida Baptist staff

agreed that C.R. should be removed from Petitioners' home at

least until these issues sorted themselves out. O n August 1,

2001, Florida Baptist social worker Sue Kiser telephoned

Mr. Zapata and scheduled an appointment for 4:30 p.m., on

August 2, 2001, to discuss the reunification of C.R. with E.R.

13. Later that day, Florida Baptist staff decided that

since E.R . had recently returned from basic training, the

optimum way of accomplishing reunification was to have E.R. meet

Ms. Kiser and C.R. at a previously scheduled medical appointment

on August 2, 2001, following which C.R. and E.R. would stay

together at anoth er foster home.

14. Florida Baptist social worker, Jackie Barksdale,

communicated this plan by telephone to Mr. Zapata on August 1,

2001. Mr. Zapata became angry and stated that he refused to

allow C.R. to leave his home and go to visit with E.R. He

acc used Ms. Barksdale of "screwing with" C.R.'s life and

committing "child abuse." He promised that "heads would roll"

and disparaged E.R.'s family. Ms. Zapata then got on the

telephone. She also accused Ms. Barksdale of child abuse and

threatened to call the abuse hotline on Florida Baptist. Since

no abuse reports were made by Petitioners, these threats were

made as a bluff in an attempt to coerce Florida Baptist to leave

C.R. with Petitioners.

15. Given this conduct, the staff of Florida Baptist felt

th ey had little choice but to remove C.R. from Petitioner's

home. C.R. was removed from Petitioners' home on August 2,

2001. C.R. stayed in the other foster home without incident for

about five weeks. C.R. and E.R. were then reunited, and

continue to live together as a family. No reports of any

problems between C.R. and E.R. have been received since that

time. These facts clearly demonstrate Petitioners'

unwillingness to cooperate in reunification plans for a child

and mother. Petitioners permitted thei r low opinion regarding

C.R.'s mother to interfere with their duty as foster parents.

There was no evidence that Petitioners' attitude regarding the

parents of foster children would not cause future interference

in reunification efforts should their appli cation for licensure

be granted.

16. An abused child, V.V., was placed in shelter care with

Petitioners. V.V. had sustained a broken arm from abuse she had

suffered. She stayed less than three days with Petitioners

because her crying kept them up at nig ht and interfered with

Mrs. Zapata's home schooling of her biological children.

Petitioners acted appropriately in requesting the removal of the

child when it became apparent that the placement could not work

out and does not demonstrate a lack of qualifi cation for

licensure.

17. Finally, a pregnant teenage girl who wished to place

her child with Florida Baptist wanted to see the home her child

was to live in. Florida Baptist arranged for the girl to look

at Petitioners' home. After the visit, Petitione rs asked

Florida Baptist never to ask them to submit to such an

inspection, as they felt they were under some heightened level

of scrutiny. Florida Baptist staff explained that parents

frequently made this request, and Petitioners repeated that they

did n ot wish to undergo it again. Petitioners request is

troubling since one of the duties of the foster parent is to

work with the biological parent of a foster child. Again,

Petitioners' negative attitudes toward the parents of foster

children demonstrate t hat Petitioners' application for licensure

should be denied.

CONCLUSIONS OF LAW

18. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties to this

proceeding in accordance with Section 120.57(1), Florida

Statutes .

19. Section 409.175(2)(f), Florida Statutes, which governs

licensure of foster homes such as the one you now operate,

defines the term "license" as follows:

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

s. 120.52(9). A license under this section

is issu ed 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. (Emphasis supplied)

20. As a consequence, a foster care license is a public

trust and not a privilege. However, the Department cannot act

unreasonably, arbitrarily or capriciously in denying requests

for foster home licensure.

21. Petitioners did not testify. They did not call any

witnesses to testify on their behalf. They introduced no

exhibits into evidence. They did cross - examine the Department's

witnesses. However, the witness' testimony was largely

unrebutted.

22. Rule 65C - 13.010(1)(c)1., Florida Administrative Code,

requires that foster parents work cooperatively with their

couns elor as a member of a treatment team. Rule

65C - 13.010(2)(a), Florida Administrative Code, requires that

foster parents present a positive image of and demonstrate

respect for the foster child's biological family and that they

agree to maintain a working relationship with the child's family

members. Moreover, Rule 65C - 13.010(2)(b), Florida

Administrative Code, requires that foster parents participate in

planning visits for the child with his family.

23. Petitioners' behavior regarding C.R. and the request

by Petitioners that the parents of potential placements not view

their home prior to placement demonstrate that they disregarded

and willfully violated these standards. They routinely

disparaged C.R.'s mother and her family. They attempted t o

prevent C.R. from visiting his mother at another foster home.

They attempted to obstruct the efforts of Florida Baptist to

reunify C.R. and his mother, even though there was no objective

evidence to suggest that C.R. was in any way an unfit mother.

Fin ally, Petitioners did not wish to have their home viewed by

the parent of a foster child so that the mother would have some

confidence in the safety and care of her child. These facts

alone warrant denial of Petitioners' application for licensure.

24. Fi nally, Section 409.175(9)(b)1., Florida Statutes,

provides as follows:

(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 af fecting 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.

25. Rule 65C - 13.011(11)(b), Florida Administrative Code,

requires that foster homes be free from objects, materials, and

conditions which constitute a threat to children. Petitioners

routinely allowed T.D. to wear clothing that smelled of sour

milk. The nipples on T.D.'s baby bottle frequently were not

properly covered. A crust w as observed on his baby bottle when

he went to the doctor. More importantly, Ms. Zapata replaced

T.D.'s pacifier after it had fallen onto the floor without

cleaning it first. While not shown to be neglect, Petitioners'

inattention to hygiene, without con trary evidence, is sufficient

reason to deny Petitioner's application.

26. Petitioners' persistent refusal to work cooperatively

with Florida Baptist or with the parents whose children were

placed in their home demonstrates an attitude of entitlement,

whi ch is completely inconsistent with the necessary requirements

of foster care. Therefore, their application for licensure

should be denied.

RECOMMENDATION

Based on the foregoing Findings of Facts and Conclusions of

Law, it is

RECOMMENDED that the Depart ment of Children and Family

Services enter a final order denying the application for a

foster care license submitted by Petitioners Alfonso and Lynda

Zapata.

D ONE AND ENTERED this 15th day of April, 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 with the Clerk of the

Division of Administrative Hearings

this 15th day of March, 2003.

COPIES FURNISHED :

John R. Perry, Esquire

Department of Children and

Family Services

2639 North Monroe Street, Room 252 - A

Tallahassee, Florida 32399 - 294 9

Alfonso Zapata

Lynda Zapata

eeline Drive

Tallahassee, Florida 32303

Paul F. Flounlacker, Agency Clerk

Department of Children and

Family Services

1317 Winewood Boulevard

Building 2, Room 204B

Tallahassee, Florida 32399 - 0700

Josie Tomayo, Gen eral 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 be filed with the agency that

will issue the final order in this case.