04-001829 J. B. And R. B. vs. Department Of Children And Family Services Status: Closed Recommended Order on Thursday, August 12, 2004.

Summary: Respondent did not prove that Petitioners caused the bruises on their foster child`s arms. Recommend that Petitioners` foster care license be revoked because they failed to report the bruises and made derogatory comments in the child`s presence.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

J. B. AND R. B., )

)

Petitioners, )

)

vs. ) Case No. 04 - 1829

)

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was conducted in this case on July 13,

2004, in Ocala, Florida, before Suzanne F. Hood, Administrative

Law Judge with the Division of Administrative Hearings.

APPEARANCES

For Petitioners: J. B. and R. B., pro se

(Address of Record)

For Respondent: Ralph J. McMurphy, Esquire

Department of Children and

Family Services

1601 West Gulf Atlantic Highway

Wildwood, Florida 34785

STATEMENT OF THE ISSUE

The issue is whether Petitioners' foster home license

should be revoked.

PRELIMINARY STATEMENT

In a letter dated February 13, 2004, Respondent Department

of Children and Family Services (Respondent) advised Petitioners

J. B. and R. B. (Petitioners) that their foster home license

would be revoked. On April 29, 2004, Petitioners requested a

formal hearing to contest the allegations that they were

responsible for bruises and welts on a foster child and that

they had provided inadequ ate supervision for the child.

Respondent referred the case to the Division of

Administrative Hearings on May 20, 2004. A Notice of Hearing

dated June 15, 2004, scheduled the hearing for July 13, 2004.

During the hearing, Respondent presented the test imony of

five witnesses and offered six exhibits that were accepted into

the record as evidence. Petitioners testified on their on

behalf, presented the testimony of two additional witnesses, and

offered one composite exhibit, which was accepted into the

record as evidence.

The parties did not file a copy of the transcript.

Respondent filed its Proposed Findings and Conclusions. As of

the date that this Recommended Order was issued, Petitioners had

not filed proposed findings of fact and conclusions of law.

All citations referenced hereinafter shall be to Florida

Statutes (2003).

FINDINGS OF FACT

1. At all times relevant to this proceeding, Petitioners

were licensed to operate a family foster home. Their most

current license was effective through Apr il 7, 2004.

2. Petitioners have served as foster parents for about

five years. There has been no report of child neglect or child

abuse in their foster home prior to the time period relevant

here.

3. A. H. is a 10 - year - old male. At all times releva nt

here, A. H. was in the fourth grade.

4. Sometime prior to October 3, 2003, Respondent removed

A. H. from his mother's custody and placed him in an initial

foster home. A. H.'s first foster home shall be referred to

hereinafter as the Gs' foster home .

5. Thomas Munkittrick worked for Respondent as a family

service counselor. A.H. was one of Mr. Munkittrick's clients.

6. A. H. had separate visitations with his mother and

father on October 6, 2003. Mr. Munkittrick supervised both

visits.

7. During a visit to the Gs' foster home on October 14,

2003, Mr. Munkittrick noticed a rash on A. H.'s stomach. The

rash appeared to be a ringworm. Mr. Munkittrick did not observe

any bruises on A. H.'s arms.

8. On or about October 15, 2003, Mr. Munki ttrick spoke to

Petitioners to determine whether they would accept A. H. in

their home as a foster child. For reasons that are not clear,

Respondent changed A. H.'s placement to Petitioners' foster home

that same day.

9. On October 16, 2003, Mr. Munkit trick took A. H. to see

a medical doctor at Express Care of Belleview. Mr. Munkittrick

and A. H.'s mother were present for the medical examination,

during which A. H. removed his shirt. Mr. Munkittrick did not

observe any bruises on A. H.'s arms.

10. A. H.'s medical record dated October 16, 2003,

indicates A. H. had a scratch/bruise on his nose, a ringworm on

his stomach, and a rash on his wrist. According to the doctor's

notes, A. H. reported that he accidentally injured his nose

while playing football with Petitioners' dogs. The doctor's

notes do not refer to any bruises on A. H.'s arms.

11. On October 23, 2003, Mr. Munkittrick visited A. H. in

Petitioners' home. Mr. Munkittrick saw no visible marks or

bruises on A. H. Instead, Mr. Munkittrick ob served what he

believed was dirt on A. H.'s arms. Mr. Munkittrick also

observed that A. H. was slightly flushed from playing outside

with Petitioners' dogs, two large Doberman Pinchers.

12. During a visit to Petitioners' home on October 30,

2003, Mr. M unkittrick observed multiple bruises on both of

A. H.'s wrists and arms. The bruises were round and as large as

quarters. There were no scratch or bite marks on A. H.'s arms.

13. Prior to October 30, 2003, Petitioners had not advised

Respondent abou t the bruises on A. H.'s arms. During the

October 30, 2003, home visit, Petitioner R. B., the foster

mother, indicated that she had never seen the bruises on A. H.'s

arms before Mr. Munkittrick pointed them out. She relied on

A. H. to explain how he w as injured. During the hearing,

Petitioner R. B. admitted that she saw blue/purple bruises on

A. H.'s arms for the first time two or three days after his

medical examination on October 16, 2003.

14. Despite the inconsistency of Petitioner R. B.'s

sta tements, the greater weight of the evidence indicates that

Petitioner R. B. had no first - hand knowledge as to the cause of

the bruises. Her testimony that she did not cause the bruises

on A. H.'s arms is credible.

15. On October 31, 2003, Mr. Munkittri ck went to A. H.'s

school to photograph the bruises on his arms. He then took

A. H. for an examination by Respondent's child protection team.

The examination included an evaluation of the bruises by an

advanced registered nurse practitioner. The nurs e was qualified

by training and experience to assess pediatric injuries

resulting from physical and sexual child abuse.

16. The nurse was unable to reach a conclusion as to the

exact source of the bruises. She could not rule out that they

were self - inf licted. However, the nurse's testimony provides

competent evidence that the bruises on A. H.'s arms were

consistent with being grabbed by another person and that they

were inconsistent with injuries resulting from roughhousing with

dogs.

17. Bruises he al in stages identified by colors beginning

with red and ending with brown before they disappear. The

colors of bruises in order of healing are red, blue, purple,

green, yellow, and brown.

18. In general, a bruise is: (a) red within one to two

days of infliction; (b) blue within one to four days of

infliction; and (c) yellow/green from the fifth or sixth day up

to the tenth day after infliction.

19. A. H.'s bruises ranged in color from red to

yellow/green to yellow. The yellow and yellow/green brui ses

were located on both of A. H.'s upper extremities. He had two

forearm bruises with a red component.

20. It is highly unlikely that A. H. received the bruises

prior to October 6, 2003. It is more likely that the injuries

causing the bruises were in flicted approximately one to two

weeks prior to October 31, 2003, i.e., between October 18, 2003,

and October 31, 2003. A. H. was living in Petitioners' home and

attending public school during this period.

21. On the evening of October 31, 2003, Respon dent's staff

decided to move A. H. to a third foster home. Respondent's

child protective investigator took A. H. back to Petitioners'

home to pick up his clothes and belongings.

22. Petitioner R. B. became excited and increasingly

emotional when she le arned that Respondent was changing A. H.'s

placement to another foster home. Petitioner R. B. began

yelling, in A. H.'s presence, that he was a liar and a "schizo"

just like his "schizophrenic mother." The child protective

investigator had to ask A. H. t o leave the room when Petitioner

R. B. began calling him and his mother names.

23. Petitioner R. B.'s behavior on the evening of

October 31, 2003, was inappropriate. However, the deputy

sheriff, who was assisting with the change in placement, did no t

make any arrests.

24. On the evening of October 31, 2003, and during the

hearing, Petitioner J. B., the foster father, admitted that he

had seen the bruises on A. H.'s arms sometime during the week

before October 31, 2003. On both occasions, Petition er J. B.

stated that A. H. was crazy. Petitioner J. B. had no first - hand

knowledge as to the cause of the bruises. During the hearing,

Petitioner J. B. provided credible testimony that neither he nor

his dogs caused the injuries.

25. In order to operat e a foster home, foster parents must

undergo training on an annual basis. The training includes

knowing when to advise Respondent about injuries to their foster

children. The requirement to report injuries is a part of the

annual service agreement signed by Respondent's staff and foster

parents.

CONCLUSIONS OF LAW

26. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

case pursuant to Sections 120.569 and 120.57(1), Florida

Statutes.

27. Pursua nt to Section 409.175(1)(f), Florida Statutes, a

foster home license is not a professional license and the

receipt of a foster home license does not create a property

right in the licensee. Instead, foster home licenses are a

public trust. See § 409.175( 1)(f), Fla. Stat.

28. Respondent has the burden of proving by a

preponderance of the evidence that Petitioners' foster home

license should be revoked. See Department of Banking and

Finance v. Osborne Stern and Co. , 670 So. 2d 932 (Fla. 1996);

Ferris v . Turlington , 510 So. 2d 292 (Fla. 1987).

29. Section 409.175(9), Florida Statutes, states as

follows in relevant part:

(9)(a) The department may deny, suspend, or

revoke a license.

(b) Any of the following actions by a

home or agency or its perso nnel is a ground

for denial, suspension, 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.

30. Florida Administrative Code Rule 65C - 13.010 states as

follows in pertinent part:

(1) Responsibilities of the Substitute

Parent to the Child.

* * *

(b) Family Care Activities.

1. Daily living ta sks.

a. The substitute care parents are

expected to provide structure and daily

activities designed to promote the

individual physical, social, intellectual,

spiritual, and emotional development of the

children in their home.

* * *

5. Discipli ne.

a. The substitute care parents must

discipline children with kindness,

consistency, and understanding, and with the

purpose of helping the child develop

responsibility with self - control.

* * *

d. The substitute care parents must not

allow children in care to be subjected to

verbal abuse, derogatory remarks about

themselves and family members or threats of

removal from the home.

* * *

f. The substitute care parents must not

use corporal punishment of any kind.

* * *

(4) Responsibi lities of the Substitute Care

Parents to the Department.

* * *

(j) The substitute care parents must

notify the department immediately of illness

or accidents involving the child.

31. It is not necessary to report every minor bruise that

appear s on a child. However, Petitioners certainly should have

advised Respondent about the multiple bruises suffered by A. H.

in the week before October 30, 2003. Their negligent

supervision and/or failure to report the bruises clearly

violated Section 409.17 5(9)(b), Florida Statutes, and Florida

Administrative Code Rules 65C - 13.010(1)(b)1.a. and 65C -

13.010(4)(j).

32. Petitioners made derogatory comments about A. H. and

his mother in his presence on October 31, 2003. Their verbal

abuse was a clear violation of Florida Administrative Code Rule

65C - 13.010(1)(b)5.d.

33. The only remaining question is whether Petitioners or

someone in their household and under their control was

personally responsible for inflicting bruises on A. H.'s arms.

Regarding this issu e, it is significant that the following

people did not testify at the hearing. (a) A. H.; (b) A. H.'s

fourth - grade teacher; (c) another foster child who was in

Petitioners' foster home for at least part of the relevant time

period; (d) the deputy sheriff who assisted in moving A. H. to

the third foster home; and (e) the prior foster parents.

34. It is undisputed that A. H. received the bruises

sometime while he was living in Petitioners' home. However,

based on the record as it exists, Respondent did n ot present

persuasive evidence that Petitioners were responsible for the

bruises on A. H.'s arms.

35. Based on this record, Petitioners did not violate

Florida Administrative Code Rule 65C - 13.010(1)(b)5. by

inflicting bruises on A. H.'s arms. However, Respondent met its

burden of proving that Petitioners’ foster care license should

be revoked based on their negligent supervision and failure to

report injuries.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMME NDED:

That Respondent enter a final order revoking Petitioners'

foster care license.

DONE AND ENTERED this 12th day of August, 2004, in

Tallahassee, Leon County, Florida.

S

SUZANNE F. HOOD

Administrative Law Jud ge

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 Heari ngs

this 12th day of August, 2004.

COPIES FURNISHED :

J. B.

(Address of Record)

R. B.

(Address of record)

Ralph J. McMurphy, Esquire

Department of Children and

Family Services

1601 West Gulf Atlantic Highway

Wildwood, Florida 34785

Paul Flounlacker , Agency Clerk

Department of Children and

Family Services

Building 2, Room 204B

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

Josie Tomayo, General Counsel

Department of Children and

Family Services

Building 2, Room 204

1317 Winewood Boule vard

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.