04-000694 Kenneth Wood And Lee Ann Wood | K. W. And L. A. W. vs. Department Of Children And Family Services Status: Closed Recommended Order on Wednesday, January 12, 2005.

Summary: Petitioners appealed the denial of a foster care license. The conditions in their residence constituted a danger to children. Recommend denial of foster care license application.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

K. W. AND L. A. W., )

)

Petitioners, )

)

vs. ) Case No. 04 - 0694

)

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORD ER

Pursuant to notice, the Division of Administrative

Hearings, by its duly - designated Administrative Law Judge,

Jeff B. Clark, held a final administrative hearing in this case

on June 2, 2004, in Viera, Florida.

APPEARANCES

For Petitioner: Thomas J. Th ompson, Esquire

Thomas Thompson, P.A.

100 South Washington Avenue

Titusville, Florida 32780

For Respondent: Richard Cato, Esquire

Department of children and

Family Services

400 West Robinson Street, Suite S - 1106

Orlando, Florida 32801 - 1782

STATEMENT OF THE ISSUE

Whether Petitioners, K.W. and L.A.W., should be granted a

license to be foster parents.

PRELIMINARY STATEMENT

On January 27, 2004, Respondent, Department of Children and

Family Services, notified Petitioners that their application to

be foster parents would not be approved based on a series of

incidents of domestic violence and a negative ch aracter

reference. On February 16, 2004, Petitioners requested an

administrative hearing. On February 26, 2004, the case was

referred to the Division of Administrative Hearings.

On March 2, 2004, an Initial Order was sent to the parties.

On March 22, 20 04, the case was scheduled for final hearing in

Viera, Florida, on April 22, 2004. On Petitioners' motion, the

case was continued and rescheduled for final hearing on June 2,

2004.

The case was presented as rescheduled. Petitioners

presented the testimon y of Nancy Sley, William Carignan, John

Wright, and Petitioners. Respondent presented the testimony of

Anita Houchin and offered eight exhibits which were marked

Respondent's Exhibits 1 through 8 and received into evidence.

The parties requested and were given 30 days after the

filing of the Transcript of Hearing to file proposed recommended

orders. The Transcript of Hearing was initially misfiled with

the Clerk of the Brevard County, Florida, Civil Court;

ultimately, it was filed with the Clerk of the Di vision of

Administrative Hearings on August 30, 2004. On November 22,

2004, Respondent requested an extension of time to file its

proposed recommended order. The request was granted, allowing

Respondent until December 10, 2004, to file.

Petitioners' Prop osed Recommended Order was filed on

November 22, 2004. Respondent's Proposed Recommended Order was

filed on December 10, 2004. Both parties' proposals have been

given careful consideration in preparation of this Recommended

Order.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the

final hearing, the following findings of facts are made:

1. Petitioners are a married couple who applied to

Respondent for a foster home license. Petitioners have three

children.

2. The background in vestigation conducted by Respondent

revealed reports of incidents of domestic violence and battery

involving Petitioners and their children.

3. On October 4, 1999, police officers responded to

Petitioners' home after receiving a report of domestic violenc e.

The officer's investigation revealed that one of the

Petitioners, L.A.W., had been battered by her son. The child

had been involved in pastoral counseling for his aggressive

behavior. Petitioner, K.W., advised the police officer that the

child, W.A.W ., would be moving from the residence because of his

continuing inappropriate behavior.

4. On April 7, 2002, another incident of domestic violence

was reported and investigated. On this occasion, the two

younger children of Petitioners were involved in a n altercation

that resulted in Petitioner, K.W., being rendered unconscious by

a blow to the head with an object delivered by one of the

children, C.W. C.W. was arrested for aggravated battery.

5. In February 2003, Petitioners desired to keep a six -

mon th - old, unrelated child in their home. The child was placed

in the home contingent on C.W.'s moving from the home and not

residing in the home. Petitioners agreed to this contingency of

placement, and the child was placed in Petitioners' home.

6. On Nov ember 5, 2003, Petitioners applied to be licensed

as foster parents. Ten days after Petitioners applied to be

licensed, another incident of domestic violence occurred. On

November 15, 2003, two of Petitioners' adult children got into a

fistfight which re sulted in one having a broken nose. As a

result, W.A.W. was arrested. At the time of the altercation,

W.A.W., 21 years old and the oldest child who had moved out at

an earlier time as a result of his behavior, was residing at

Petitioners' residence. Alt hough the police report indicates

that the incident occurred at Petitioners' residence, the

testimony indicated that it occurred "down the street."

7. All three of Petitioners' children continue to reside

locally and frequent their parents' home.

8. Peti tioners are highly recommended by a representative

of The Children's Home Society, a Guardian ad Litem, and their

pastor.

9. Respondent has the responsibility of placing foster

children in a safe setting. But for the behavior of their

children, Petitio ners would qualify for licensure. As long as

Petitioners' children frequent Petitioners' residence, any child

placed in that residence is at risk. As a result, Petitioners

are not qualified to be licensed as foster parents.

CONCLUSIONS OF LAW

10. The Di vision of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

proceeding. § 120.57, Fla. Stat. (2004).

11. Respondent is the agency charged with the

responsibility of licensing foster homes. § 409.175, Fla. Stat.

(200 4).

12. Petitioners are applicants for a foster home license.

Accordingly, as the party asserting the affirmative of an issue

before this administrative tribunal, Petitioners have the burden

of proof. Florida Department of Transportation v. J.W.C.

Compa ny, Inc. , 396 So. 2d 778 (Fla. 1st DCA 1981). Petitioners

must establish facts which support their position by a

preponderance of the evidence. Department of Banking and

Finance v. Osborne Stern Company , 670 So. 2d 932 (Fla. 1996).

13. Subsection 409. 175(1)(a), Florida Statutes (2004),

authorizes Respondent to establish rules regarding

qualifications of parties seeking to be licensed as foster

parents.

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

reads as follows:

(11) Physical Environme nt.

* * *

(b) The home and premises must be free

from objects, materials, and conditions

which constitute a danger to children.

15. Respondent relies on Subsection 409.175(2)(f), Florida

Statutes (2004), which reads, in pertinent part:

A license 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 public trust and a privilege, and is not

an entitlement. The privilege must guide

the finder of fact or trier of law at any

administrative proceeding or court action

initiated by the department. (Emphasis

supplied)

16. But for the conduct of their chi ldren, Petitioners

meet the licensure standards. However, the preponderance of the

evidence reveals that Petitioners' children frequent their

residence, and the unruly behavior of these children constitutes

a danger to a foster child as contemplated by Fl orida

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

17. Given the Legislative directive contained in

Subsection 409.175(2)(f), Florida Statutes (2004), Respondent's

decision to deny Petitioners' application for licensure is

appropriate.

RECOMMENDATION

Based on the foregoing Findings of Facts and Conclusions of

Law, it is

RECOMMENDED that the Department of Children and Family

Services enter a final order denying the foster care license

application of Petitioners.

DONE AND ENTERED this 12th day of January, 200 5, in

Tallahassee, Leon County, Florida.

S

JEFF B. CLARK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 27 8 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 12th day of January, 2005.

COPIES FURNISHED :

Thomas J. Thompson, Esquire

Thomas Thompson, P.A.

100 South Washington Avenue

Titusvil le, Florida 32780

Richard Cato, Esquire

Department of children and

Family Services

400 West Robinson Street, Suite S - 1106

Orlando, Florida 32801 - 1782

Paul Flounlacker, 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 par ties 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.