06-001978 Michael And Ann Holt vs. Department Of Children And Family Services Status: Closed Recommended Order on Tuesday, December 26, 2006.

Summary: Non-renewal of a license cannot be used for revocation. Non-renewing agency must prove specific grounds by clear and convincing evidence. Preponderance of the evidence showed injury to foster child could be considered accidental.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MICHAEL AND ANN HOLT , )

)

Petitioner s , )

)

vs. ) Case No. 06 - 1978

)

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES , )

)

Respondent . )

)

RECOMMENDED O RDER

Administrative Law Judge (ALJ) Daniel Manry conducted the

formal hearing in this proceeding on October 2, 2006, in

Lakeland, Florida, on behalf of the Division of Administrative

Hearings (DOAH).

APPEARANCES

For Petitioners: Arthur C. Fulmer, E squire

1960 East Edgewood Drive

Lakeland, Florida 33803

For Respondent: Jerome F. Major, Esquire

Department of Children and

Family Services

4720 Old Highway 37

Lakeland, Florida 33813

STATEMENT OF THE ISSUE

The issue is whether Respondent should renew Petitioners'

license to operate a family foster home.

PRELIMINARY STATEMENT

By certified letter dated Ap ril 14, 2006, Respondent

notified Petitioners of Respondent's intent to deny their

application to renew their license as a family foster home.

Petitioners timely requested a formal hearing. Respondent

referred the case to DOAH to conduct the hearing.

A t the hearing, Petitioner presented the testimony of five

witnesses and submitted 13 exhibits for admission into evidence.

Respondent presented the testimony of six witnesses and

submitted six exhibits for admission into evidence.

The identity of the witn esses and exhibits, and the rulings

regarding each, are reported in the two - volume Transcript filed

with DOAH on October 24, 2006. Pursuant to agreement, the

parties timely filed their respective proposed recommended

orders (PROs) on November 27, 2006.

FI NDINGS OF FACT

1. Respondent is the state agency responsible for

licensing and regulating family foster homes. Respondent first

licensed Petitioners to operate a family foster home on

April 11, 2003.

2. Respondent renewed Petitioners' license in April 2004.

Petitioners began accepting foster children into their home

shortly after the renewal of their license in April 2004.

3. Respondent renewed Petitioners' license on April 14,

2005. Petitioners were required to renew their license be fore

April 14, 2006.

4. Petitioners timely applied for the renewal of their

license before April 14, 2006. Respondent denied the

application for renewal by letter dated April 14, 2006 (notice

of denial).

5. The notice of denial alleges that child abuse involving

a child identified in the record as C.S. violated safety

standards in Florida Administrative Code Rule 65C - 13.010. The

notice of denial states , in relevant part:

. . . The decision to deny your foster care

license is based on the f ollowing reason:

On or about 12/19/05 one of your foster

children, C.S., was brought to the emergency

room with a fractured left elbow. The night

before while sleeping, the [ sic ] Ann Holt

heard C.S. crying and went into her room to

pick her up so she wou ldn't wake up another

child. C.S. and the other child shared the

same bedroom. While Ms. Holt was removing

C.S. from the crib she heard a pop. During

the next morning C.S. complained of pain.

Foster care mother called child's

pediatrician and got an ap pointment at

3:30 PM where the doctor advised Ms. Holt to

take C.S. to the emergency room. The foster

mother brought C.S. to Lakeland Regional

Medical Center at 8:15PM on 12/20/05.

Child Protection Team Medical Director,

Dr. William Brooks, reviewed the emergency

room records and child's x - rays and

concluded the injury was child abuse.

Dr. Brooks sought a second opinion from

Dr. Guidi, a pediatric radiologist at Tampa

General Hospital. Dr. Guidi also concurred

with Dr. Brook's findings. Both doctors

ag reed that the injury required significant

pulling force and could not be considered

accidental.

It is the responsibility of the Central Zone

Licensing Office to make a determination

whether a foster home is in compliance with

the standards for licensure s et forth in the

Florida Administrative Codes [ sic ] and the

Florida Statutes. Your lack of compliance

with safety standards towards the foster

children that were in your home at the time

of the incident which are governed by

Florida Administrative Code 65C 13.010 [ sic ]

prohibits the Department from re - licensing

your home.

Please note that pursuant to Florida

Statutes 409.175, the Department may deny,

suspend, or revoke a license for

noncompliance with the requirements for

licensure. . . .

6. Petitio ners do not dispute most of the factual

allegations in the notice of denial. However, Petitioners

dispute that the injury suffered by C.S. was the result of child

abuse.

7. The trier of fact finds that a preponderance of the

evidence shows the injur y to C.S. did not require "significant

pulling force" and could be accidental. 1 The trier of fact

weighed expert medical testimony presented by each party

concerning the issue of child abuse.

8. Neither of the two medical experts who testified for

R espondent actually examined C.S., and neither is an

orthopedist. One physician is a "pediatric ER doctor" at Tampa

General Hospital in Tampa, Florida. The other physician is a

pediatric radiologist.

9. The pediatric radiologist who reviewed the X - rays could

not quantify the force required to cause such an injury , but

stated that the mere lifting of a child of 25 pounds could cause

such a fracture. He had no independent recollection of

reviewing the X - rays, had never seen the child, and based his

testimony on the report of the other non - treating physician that

testified for Respondent.

10. The expert who testified for Petitioners is an

orthopedist, was the treating physician for C.S., and was the

only expert witness that actually examined C.S . The treating

physician has over 30 years ' clinical experience diagnosing and

treating orthopedic injuries.

11. The treating physician is a Fellow of the Royal

Academy of Physicians and Surgeons in Ireland; a Fellow of the

Royal Academy of Surgeo ns in Scotland; and a Fellow of the

British Orthopaedic Association in England. The treating

physician has practiced in the United States since 1975, was

Chief of Orthopedics at the VA Medical Centers in Gainesville

and Bay Pines, Florida, and was an a ssi stant p rofessor in the

colleges of medicine at the University of Florida and the

University of South Florida.

12. The testimony of the treating physician was credible

and persuasive. The treating physician's clinical experience

with C.S., and h is extensive experience in diagnosing and

treating similar types of injuries in children assisted the

trier of fact in resolving the relevant factual dispute between

the parties. In addition, the trier of fact found the testimony

of Petitioner, Ann Holt, the foster mother and the only witness

present at the time of the alleged abuse, to be credible and

persuasive.

13. Mrs. Holt was in her bedroom at approximately

11:00 p.m. on December 19, 2005, when she heard a frantic cry

from C.S. Petitioner, M ichael Holt, the foster father, did not

hear the cry or witness the incident because he was in the

shower at the time.

14. Mrs. Holt hurried down the hallway to the bedroom that

C.S. shared with another baby girl. C.S. was approximately

19 months old, and the roommate was approximately 11 months old.

C.S. and her roommate each had separate cribs.

15. The roommate was ill, and Mrs. Holt feared C.S. would

awaken the roommate. Mrs. Holt reached into the crib where C.S.

was crying and picked up C.S. by her left arm, held her to her

shoulder with both hands, and took her out of the room.

16. The manner in which Mrs. Holt lifted C.S. from the

crib was somewhat awkward. While Mrs. Holt was lifting C.S.,

C.S. slipped slightly, but Mrs. Holt retained her grip on the

left arm of C.S.

17. The awkward lift caused an injury to C.S. that was

diagnosed by an emergency room physician on December 20, 2005,

as a metaphyseal chip fracture of the left distal humerus, with

elbow joint effusion (f ractured elbow). Pursuant to the

instructions of the emergency room physician, Mrs. Holt took

C.S. to the treating physician on December 22, 2005.

18. The treating physician confirmed the diagnosis and

placed C.S. in a cast for several weeks. C.S . recovered without

complication and returned to full range of motion.

19. The medical experts for Respondent testified that the

injury could only have been caused by excessive force consistent

with abuse. However, the treating physician determined the

fracture was not a significant injury, did not require

extraordinary force, and was not related to abuse.

20. The fracture suffered by C.S. was a small chip about a

millimeter thick that can occur with "relatively minimal force."

A fracture l ike that suffered by C.S. can be inflicted by the

child rolling over in bed without any outside cause.

21. If the fracture were higher up the humerous bone, it

may have been consistent with child abuse because of the

significant force necessary to ca use an injury at that location.

In this case, however, the area of injury is near or in the area

of the child's growth plate that is more fragile and susceptible

to injury.

22. C.S. did not cry in response to the injury. Rather,

C.S. stopped crying when Mrs. Holt lifted C.S. from her crib and

held C.S. to Mrs. Holt's shoulder. That night, C.S. used both

hands to drink from her "sippy cup."

23. The next day, December 20, 2005, Mrs. Holt observed

that C.S. was not using her left hand to hold her "sippy cup."

Mrs. Holt also observed some favoring of the left arm and some

swelling.

24. Mrs. Holt reported the incident to the licensing

retention counselor and arranged an appointment with a

pediatrician. The pediatrician referred C.S. to th e emergency

room. Mrs. Holt took C.S. to the emergency room and remained

with C.S. for support and reassurance. Mrs. Holt and C.S.

returned home from the emergency room at approximately 5:00 a.m.

on December 21, 2005.

25. On December 29, 2005, Respondent removed the three

foster children residing with Petitioners. Respondent has not

placed any other foster children with Petitioners.

26. Petitioners did not fail the required screening

described in Subsection 409.175(6)(h), Florida Statut es (2005).

Respondent never conducted the required screening.

CONCLUSIONS OF LAW

27. DOAH has jurisdiction over the parties and the subject

matter in this proceeding. §§ 120.569 and 120.57(1), Fla. Stat.

(2006). DOAH provided the parties with adequate notice of the

formal hearing.

28. The burden of proof is on Respondent. 2 Coke v.

Department of Children and Family Services , 704 So. 2d 726 (Fla.

5th DCA 1998). Respondent must satisfy its burden of proof by a

preponderance of the evidenc e. § 409.175(1)(f), Fla. Stat.

(2005)(providing that the subject license is not a professional

license and does not create a property interest). Compare Coke ,

704 So. 2d at 726 (license to operate family day care license)

Dubin v. Department of Business Regulation , 262 So. 2d 273, 274

(Fla. 1st DCA 1972) (horse trainer license) ; a nd Bank of Credit

and Commerce International (Overseas) Limited v. Lewis , 570 So.

2d 383, 385 (Fla. 1st DCA 1990) (license to operate agency

office) , with Mayes v. Florida Departme nt of Children and Family

Services , 801 So. 2d 980, 981 (Fla. 1st DCA 2001) ( application

to transfer pre viously issued foster care license to residence

in a different county is an application for a new license and

applicant must prove entitlement by a prep onderance of the

evidence) .

29. Respondent did not satisfy its burden of proof.

Respondent failed to show by a preponderance of evidence that

the injury to C.S. "required significant pulling force and could

not be considered accidental." Rather, a preponderance of

evidence shows the injury did not require significant pulling

force and could be considered accidental.

30. The non - renewal of a license must be supported by

specific factual findings based on record evidence. The

findings must show how the alleged use of significant pulling

force violated statutes or rules or otherwise justified the non -

renewal of the license. See Mayes , 801 So. 2d at 982 (ALJ must

make specific findings indicating how licensee's use of lock

violated statutes or ru les or otherwise justified denial of

application).

31. Florida Administrative Code Rule 65C - 13.010 is the

specific rule allegedly violated by Petitioners. The notice of

denial alleges , in relevant part:

Your lack of compliance with safety

standar ds towards the foster children that

were in your home at the time of the

incident which are governed by Florida

Administrative Code 65C13.010 [ sic ]

prohibits the Department from re - licensing

your home.

32. Florida Administrative Code Rule 65C - 13.010 (1)(b)6.b.

and d. prescribe the only safety standards relevant to the facts

in this proceeding. The rule states , in relevant part:

b. The substitute care parents are expected

to transport children for medical, dental or

other appointments which may be n eeded.

They are to remain with the child if needed

for support and reassurance. . . .

* * *

d. The substitute care parents must

immediately report to the department any

serious changes in the health or mental

health of a child.

33. The not ice of denial does not allege that Petitioners

failed to comply with quoted provisions of the rule. Rather, a

preponderance of evidence shows that Petitioners transported

C.S. for needed medical appointments and remained with the child

for support and rea ssurance; and that Mrs. Holt immediately

reported the injury to C.S.

34. Subsection s 409.175(6)(h) and (i), Florida Statutes

(2005), relates to re - licensure of family foster homes and

provides, in pertinent part:

(h) . . . a license may not be is sued or

renewed if any person at the home or agency

has failed the required screening. . . .

The undisputed evidence shows that Respondent never conducted

the required screening.

35. Subsection 409.175(9)(b)1., Florida Statutes (2005),

provides in relevant part:

(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 affecting the health or safety of

children in the home or agency.

36. Lifting C.S. from her crib by one arm arguably may be

a negligent act that materially affected the health of C.S.

without "significant pulling force." However, the notice of

denial does not include such an allegation as a ground for non -

renewal. Nor does the evidence submitted by Respondent address

the issue of whether lifting C.S. from her crib by one arm was a

negligent act in the absence of "significant pulling force."

37. The scope of this proceeding is limited to the fac tual

grounds and violations alleged in the notice of denial.

Petitioner cannot find Respondent guilty of a charged violation

based on evidence of grounds not specifically alleged in the

notice of denial. Cf. Thomas Pevisani, M.D. v. Department

of Hea lth , Case No. 1D04 - 2488 (Fla. 1st DCA July 20, 2005);

Ghani v. Department of Health , 714 So. 2d 1113 (Fla. 1st DCA

1998); and Cotrill v. Department of Insurance , 685 So. 2d 1371

(Fla. 1st DCA 1996) (each involving an administrative complaint

in a license d iscipline proceeding ).

38. In Cotrill , the court reversed a finding that the

licensee violated statutes referred to in the administrative

complaint based on factual grounds not alleged in the complaint.

Judge Benton explained:

Predicating disciplina ry action against a

licensee on conduct never alleged in an

administrative complaint . . . violates the

Administrative Procedure Act. To

countenance such a procedure would render

nugatory the right to a formal

administrative proceeding to contest the

[fac tual] allegations. . . .

Cotrill , 685 So. 2d at 1372.

RECOMMENDATION

Based on the foregoing Findings of Facts and Conclusions of

Law, it is

RECOMMENDED that Petitioners' application to be re - licensed

as a family foster home be GRANTED.

DONE AND ENTER ED this 2 6th day of December , 2006 , in

Tallahassee, Leon County, Florida.

S

DANIEL MANRY

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 2 6th day of December , 2006 .

ENDNOTES

1/ The stated grounds for denial make the amount of f orce

applied to lift C.S. from her crib the fulcrum of decision in

this proceeding. The notice of denial alleges that the injury

required "significant pulling force" and "could not be

considered accidental." The notice of denial does not allege

that lift ing C.S. from her crib by one arm is abuse irrespective

of whether the pulling force was significant. Nor does the

evidence submitted by Respondent address that issue. Lifting

C.S. from her crib by one arm, rather than by placing two hands

under her arms , arguably may be an act of abuse. However, the

trier of fact cannot substitute his opinion for that of the

experts, cannot base findings on evidence not submitted by

Respondent, and cannot recommend non - renewal for grounds not

alleged in the notice of de nial.

2/ Respondent admits in its PRO in paragraph 43 of the

c onclusions of l aw that Respondent has the burde n of proof.

Petitioner argues that the standard of proof shoul d be a clear

and convincing. However, the license at issue is not a

profession al license , the license does not represent a property

interest that would require Respondent to prove the grounds for

non - renewal by clear and convincing evidence. In any event the

issue is moot in this proce eding because the trier of fact finds

that a pr eponderance of evidence shows the injury to C.S. did

not require "significant pulling force" and could be considered

accidental.

COPIES FURNISHED :

Arthur C. Fulmer, Esquire

1960 East Edgewood Drive

Lakeland, Florida 33803

Jerome F. Major , Esquire

Depa rtment of Children and

Family Services

4720 Old Highway 37

Lakeland, Florida 33813 - 2030

Gregory Venz, Agency Clerk

Department of Children and

Family Services

Building 2, Room 204B

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

John Copela n, General Counsel

Department of Children and

Family Services

Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

Luci D. Hadi, Secretary

Department of Children and

Family Services

Building 1, Room 202

1317 Winewood Boulevar d

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 ag ency that

will issue the Final Order in this case.