06-003815 Department Of Children And Family Services vs. Barbara Haines Status: Closed Recommended Order on Wednesday, February 21, 2007.

Summary: Recommend rescinding the revocation of Respondent`s foster care license.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES , )

)

Petitioner , )

)

vs. ) Case No. 06 - 3815

)

BARBARA HAINES , )

)

Respondent . )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted in this

case on December 18, 2006, in Palm Bay, Florida, before

Administrative Law Judge R. Bruce McKibben of the Division of

Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Richard Cato, Esqui re

Department of Children and

Family Services

400 West Robinson Street, Suite S - 1106

Orlando, Florida 32801 - 1782

For Respondent: Barbara A. Haines, pro se

882 Brittan Avenue

Palm Bay, Florida 32909

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent's foster care

license should be revoked for violating Florida Administrative

Code Rule 65C - 13.010.

PRELIMIN ARY STATEMENT

Respondent was notified by letter dated September 19, 2006 ,

that the Department of Children and Family Services (DCFS or

Petitioner ) was revoking her foster care license. On

September 22, 2006, Respondent notified DCFS that she wished to

co ntest the revocation and wanted a formal administrative

hearing. The matter was forwarded to the DOAH and assigned to

the undersigned.

The initial revocation letter to Respondent stated the

following grounds:

The Department of Children and Families

receiv ed an abuse report on March 31, 2006 ,

concerning you and one of your foster

children (9 year old child with Downs

Syndrome) residing in your home at that time.

The report alleged that you were hitting the

child several times about the arms and hands

resul ting in bruises or marks and that the

child had been tied with an elastic type cord

to restrain her in a car seat. As part of

this investigation, the child was referred to

the C hild Protection Team for evaluation.

The C hild Protection team concluded that the

injuries to the child were "consistent with

being struck with a linear, flexible object."

In addition, the child was observed with

older bruising, which per the Child

Protection Team "is concerning [sic] for

chronic physical abuse." This child had b een

placed in your home for approximately one

year.

At the final hearing held on December 18 , 2006, Petitioner

presented the testimony of Summer Bray, child protective

investigator; Maria Bonnett, nurse practitioner; and

Amy Hammett, family services spe cialist . Petitioner also

offered into evidence six exhibits identified as A, B, C, D, E

and F. Exhibits B and C contain photos of the alleged victim

and were accepted into evidence but will remain sealed in

accordance with Section 415.107, Florida Statut es (2006). 1

Respondent testified on her own behalf and presented the

testimony of Susan Aliberti, teacher; Judy Houser; Teresa Miles,

executive director of Children's Home Society; Arlene Clarke,

case manager; Margaret Meunier, Medicaid foster care superv isor

for Children's Medical Society; and Carol Jewel, guardian ad

litem for the victim. Respondent also offered five exhibits,

identified as A through E, all of which were admitted into

evidence.

At the close of the evidentiary portion of the final

hearin g, the parties requested, and were allowed, ten "working

days" from the filing of the hearing transcript within which to

file their respective proposed recommended orders. A two - volume

T ranscript of the hearing was filed on January 25, 2007, meaning

the p roposed recommended orders were due on or before

February 8, 2007 . When neither party had submitted a proposed

recommended order by that date, they were contacted by DOAH

administrative staff and asked to submit their orders on or

before February 14, 200 7, in order for them to be considered.

Petitioner filed a Proposed Recommended Order on February 12,

2007; Respondent filed her Proposed Recommended Order on

February 14, 2007. The submitted documents were carefully

considered during the preparation of t his Recommended Order.

FINDINGS OF FACT

1. DCFS is the state agency responsible for, inter alia ,

licensing and monitoring foster care parents. One of its duties

is to investigate all allegations of abuse or neglect concerning

children in foster care.

2. Respondent is a 70 - year - old female who was licensed on

December 15, 2005, to be a "medical foster parent" so that she

could care for children with special needs. The alleged victim

in this matter, "Joy," had been placed with Respondent on

June 22, 2005. At that time, Joy was nine years old, had Downs

Syndrome, and was not communicative. Joy needed corrective

lens, was not very coordinated, and was prone to clumsiness.

She demanded a considerable amount of care to meet her needs.

In September 2005, an other child, Beth, began living at the

house with Respondent and Joy. The relationship between Joy and

Beth was somewhat strained.

3. Respondent previously served as a guardian ad litem for

at risk children. She has been a foster parent for

approximatel y nine years. To become a medical foster parent,

Respondent underwent training and then applied for licensure by

DCFS. She was duly - licensed at the time of the incident in

question. From the date of her licensure until the alleged

incident, Respondent w as considered a very good provider of

care. There were no indications that she would be abusive to

children in her care.

4. When necessary, Respondent disciplined children in her

care by withholding toys, placing them in time - out, and denying

television/ radio privileges. She did not utilize corporal

punishment.

5. From March 27 through 31, 2006, Joy and Beth attended a

Spring Break Day Camp for Children with Disabilities. On

Friday, March 31, 2006, Respondent picked up Joy and Beth from

the day camp at Eau Gallie High School. On the way home,

Respondent had to stop the car several times and attempt to re -

secure Joy's car seat because Joy kept opening it. At one

point, Respondent stopped in the parking lot of a local Wal -

Mart , got out of the car , and w ent into the back seat. She

proceeded to bang on the seat several times to keep it closed,

but to no avail. She then used an elastic bungee cord to secure

the seat.

6. Two people in the Wal - Mart parking lot witnessed

Respondent's actions. They perceive d Respondent to be hitting

the child and then use the bungee cord to tie the child's hands.

Neither of the witnesses testified at final hearing , and their

statements (included in the police report, Petitioner 's

Exhibit F) were not persuasive. It should be noted that despite

Petitioner's statement in its Proposed Recommended Order that

Respondent was allegedly striking the child with a bungee cord,

the initial police report indicates that Respondent was

allegedly using "hands, fist and feet" as the means of attack.

The issue of a bungee cord was only brought up by the police

after conducting its follow - up investigation some three or four

days later. Respondent herself was the person who advised the

investigation team about the existence of the bungee cor d.

7. Respondent vividly described the incident to have

occurred as follows: After picking up Joy from school,

Respondent became frustrated because Joy continued to open the

car seat latch. Respondent stopped, attempted to bang the seat

cover back down, and scolded Joy. This happened three times

during the trip from school to home. On the third occasion,

Respondent yelled at Joy and more forcefully banged on the seat

cover. When it would not stay latched, Respondent took a bungee

cord from the trunk a nd attempted to secure the seat. During

this incident, Joy was upset and crying loudly. (Joy is

extremely non - verbal and resorts to yelling and screaming when

she is upset.) Respondent was also yelling and was upset.

8. Certain individuals who were in the parking lot

contacted the local police, and an investigation was commenced.

A determination was made that the alleged perpetrator was a

foster parent, so DCF S 's child protection team was called. They

immediately sent a team out to Respondent's home t o examine the

child and interview Respondent. Upon viewing the bruising on

Joy's arms, the DCF S team decided to remove Joy and Beth from

Respondent's home pending conclusion of the investigation. Joy

was also taken to a local emergency room for medical e valuation,

where pictures were taken of her bruises.

9. The pictures, taken a day or two after the incident, do

show bruising on Joy's arms and upper body. The bruises appear

to be of different ages. Each of the bruises is fairly small,

and some are ide ntified by a nurse practitioner as "linear" in

nature. In actuality, some of the small bruises are aligned in

a row so that they could be called linear, but there are no

pictures of bruising in a straight, unbroken line (as would

appear if the ch ild had b een hit with a cord).

1 0. Respondent has no history of abusing children in her

care. She is held in high regard by the persons who monitor her

care of medically needy children. She is one of few medical

foster parents available in Brevard County to care for such

children.

1 1. Respondent kept a daily log of her activities with Joy

in accordance with DCF S requirements. Those logs show several

factors important to the present case: Bruises were noted on

Joy's body the day prior to the incident. Responde nt had dealt

with the car seat problem earlier ( e.g. , on December 29, 2005).

Joy would apparently bite and pinch herself and cause bruising.

Joy needed glasses, but either intentionally or accidentally

broke them very often, leaving her more likely to st umble and

fall. The child's aggressive behavior often resulted in

physical altercations with other children.

12. The only person to testify at hearing who was present

at the time of the alleged abuse was Respondent . Her

description of the event wa s the most credible testimony

presented .

CONCLUSIONS OF LAW

13. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding pursuant to Section 120.569 and Subsection 120.57(1),

Florida Statutes.

14. D CFS is the agency charged with the responsibility of

licensing foster parents in the state of Florida. Subsection

409.175, Florida Statutes, which reads in pertinent part:

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

or revoke a license.

(b) Any of the following action s by a

home or agency or its personnel is a ground

for denial, suspensi on, or revocation of a

license:

* * *

2. A violation of the provisions of this

section or of licensing rules promulgated

pursuant to this section.

15. F lorida Administrative Code Rule 65C - 13.010 reads in

pertinent part:

(1) Responsibilities of the Substitute

Parent to the child.

* * *

(b) Family Care Activities.

* * *

5. Discipline

a. The substitute care parents must

dis cipline children with kindness,

consistency, and understanding, and with the

purpose of helping the child develop

responsibility with self - control.

* * *

f. The substitute care parents must not

use c orporal punishment of any kind.

16. The Department seeks revocation of Respondent's foster

care license . As the party asserting the affirmative of an

issue before this administrative tribunal, the Department has

the burden of proof. Florida Department of Transportation v.

J.W.C. Company , 396 So. 2d 778 ( Fla. 1st DCA 1981). However, in

accordance with the definition of "license" contained in

S ubs ection 409.175(2)(f), Florida Statutes, the licensure status

previously awarded to Respondent is not a professional license

and does not create a prop erty right. Therefore, the Department

must establish facts which support its position by a

preponderance of the evidence rather than by a clear and

convincing standard normally imposed in professional licensure

cases. See Department of Banking and Financ e, Division of

Securities and Investor Protection v. Osborne Stern and Co . , 670

So. 2d 932 (Fla. 1996).

17 . The evidence presented does not establish that

Respondent was abusing or administering corporal punishment to

the child. Her actions involved a st rained and frustrated

effort to secure Joy in the car seat, nothing more. It is clear

that the allegations are contrary to Respondent 's known history

of care to Joy and other children. Petitioner has not satisfied

its burden in this matter.

RECOMMENDATIO N

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered by the Department

of Children and Family Services rescinding the revocation of

Re spondent's foster care license.

DONE AND ENTERED this 2 1st d ay of February , 2007 , in

Tallahassee, Leon County, Florida.

S

R. BRUCE MCKIBBEN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(85 0) 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 1st day of February , 2007 .

ENDNOTE

1/ All references to Florida Statutes are to Florida Statutes

(2006), unless otherwise indicated.

COPIES FURNISHED :

Richard Cato, Esquire

Department of Children and

Family Services

400 West Robinson Street, Suite S - 1106

Orlando, Florida 32801 - 1782

Barbara A. Haines

882 Brittan Avenue

Palm Bay, Florida 32909

Gregor y Venz, Agency Clerk

Department of Children and

Family Services

Building 2, Room 204B

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

John Copelan, General Counsel

Department of Children and

Family Services

Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

Robert Butterworth, Secretary

Department of Children and

Family Services

Building 1, Room 202

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have th e 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.