07-000085 Melvin And Tammy Gieger vs. Department Of Children And Family Services Status: Closed Recommended Order on Thursday, August 9, 2007.

Summary: Petitioners met the qualifications to be relicensed as a Therapeutic Foster Home. There was no evidence of abuse, no financial disqualification, and no evidence of unlicensed operations.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MELVIN AND TAMMY GIEGER , )

)

Petitioner s , )

)

vs. ) Case No. 0 7 - 0085

)

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED OR DER

This cause came on for formal proceeding and hearing before

P. Michael Ruff, a duly - designated Administrative Law Judge of

the Division of Administrative Hearings. The formal hearing was

conducted in Tavares , Florida, on May 2, 2007 . The appearances

were as follows:

APPEARANCES

For Petitioner s : Jerri A. Blair, Esquire

Lockett & Blair

Post Office Box 130

Tavares, Florida 32778

For Respondent: Ralph J. McMurphy , Esquire

Departme nt of Children and

Family Services

1601 West Gulf Atlantic Highway

Wildwood , Florida 34785

STATEMENT OF THE ISSUE

The issue to be resolved in this proceeding concerns

whether th e Petitioners have been guilty of violation of

pertinent statutes and rules governing qualification and

capability to hold a foster home license and to operate a foster

home, in this case a "therapeutic foster home" and, if so,

whether their application fo r renewal of licensure should be

denied.

PRELIMINARY STATEMENT

The cause arose when the Petitioners , the Giegers , sought

renewal of their therapeutic foster care license on August 10,

2006. They had previously been licensed as therapeutic foster

parents but voluntarily relinquished that license on February 6,

2006 . They did so because the Department of Children and Family

Services (Department) had conducted an investigation of an

allegation of abuse concerning their foster home and concluded

that that ab use report should be determined "founded." The

Giegers apparently believed that they would be entitled to an

immediate administrative hearing to contest whether the abuse

had occurred and therefore whether they should retain their

license. When they soug ht the administrative hearing the

Department refused to grant them a hearing. They then appealed

the matter to the First District Court of Appeal, which upheld

the Order of the Department.

When the Department received the August 10, 2006, license

renewal application , it conducted a n evaluation and issued a

denial of th e application. The Giegers thereupon timely filed a

Petition for Administrative proceeding concerning the denial of

th e license application. The denial was predicated upon the

Department's position that the Giegers had inappropriately

punished children in their home in the past and that they had

some sort of business interest or income dependency on their

being foster licensed parents and that such was a violation of

rules concerning foster parenting.

Later, after this proceeding was being prosecuted before

the Administrative Law Judge , the Department apparently took the

position , by a supplemental denial letter, that the Giegers were

also in violation of relevant law because they had a c hild

placed in their home through a voluntary guardianship agreement

that had not been approved by a court and that therefore they

were acting as an unlicensed foster home. This supplemental

denial document was not filed with the Administrative Law Judge

until the day of the hearing. Apparently the Petitioners were

aware of it before the hearing at some point , because they

responded to it .

The cause came on for hearing as noticed. At the hearing

the Petitioners presented 14 witnesses and had four exhi bits

admitted into evidence . The Respondent presented two witnesses

and had Exhibits 1 and (1a) admitted into evidence and 2, 3, and

4 admitted , but not for the truth of factual matters depicted

therein . Upon concluding the proceeding the parties chose t o

submit Proposed Recommended Orders which were timely filed and

have been considered in the rendition of this Recommended Order.

FINDINGS OF FACT

1. The above - named Petitioners were licensed as operators

of a therapeutic foster home and as therapeutic f oster parents.

D ue to an alleged abuse report , they became involved in a

revocation proceeding with the Department concerning their

previously - held license. Upon advice by personnel with Camelot,

Inc. (Camelot) , a private provider which provides services to

the Department for therapeutic foster care , by contract, they

voluntarily relinquished their previous license on February 6,

2006, in the belief that they w ould still be entitled to a

formal proceeding to contest that the alleged abuse occurred ,

and th eir licensure entitlement . The Department declined to

afford them a hearing on the issue , and they appealed to the

District Court of Appeal for the First District . The Department

was upheld.

2. They then applied for a renewal of their therapeutic

foste r care license on August 10, 2006, for Lake County,

Florida. An evaluation of the application was launched by the

Department and ultimately the Department issued a denial of the

license application. A timely request for an administrative

proceeding to co nte s t denial of that license was filed by the

Giegers .

3 . The license denial was based initially upon the

Department's determination that the Giegers had allegedly

inappropriately punished children in their home and that they

had some sort of business in terest or income interest in being

licensed foster parents , purportedly a violation of foster

parenting rules. Sometime thereafter a supplemental basis for

denial was served upon them by the Department wherein the

Department alleged that the Petitioners h ad also violated

Section 409.175(4) and (12)(a), Florida Statutes (2006), because

they had a child placed in their home through a guardianship

agreement that had not been approved by a court and were

therefore acting as an unlicensed foster home. A respon se to

that supplemental denial notice was made by the Petitioners.

4 . Therapeutic foster parents are trained to provide for

children with difficult behavioral problems. The Giegers

received this training and remained in compliance with the

training upda tes and continued education necessary in order to

continue their licens ure in good standing. In addition to this,

Mrs. Geiger is a trained mental health specialist , with a

master ' s degree , who works for Lifestreams, a mental health

provider, providing ser vices to disturbed children.

5 . The Giegers were previously affiliated , as therapeutic

foster parents , with the private provider, Camelot, which

provide s services to the Department for therapeutic foster care.

T hey were licensed as therapeutic foster pa rents at that time,

and accepted a number of severely disturbed children into their

home over the years while they were affiliated with Camelot.

6 . When a foster parent has a child placed in their home ,

Camelot has a therapeutic system whereby a therap ist is assigned

to that child and is available for consultation at any time of

day. If the primary therapist is unavailable , the supervisor of

that therapist is available for consultation. Camelot's

therapeutic personnel and various mental health profess ionals

have been frequently in the Giegers ' home to consult, monitor,

and assist with the care and therapy of foster children placed

there . A number of those therapeutic personnel testified. They

established that the Giegers are excellent parents who hav e

provided exemplary care to the foster children placed in their

home. These people have training in mental health and related

fields. Some hold master ' s degrees and have been trained to

recognize abuse or evidence of it. Some are psychologist s,

specifi cally assigned as the mental health professional working

with particular children placed in the Giegers ' home.

7 . In 2005, a child, J.D., was placed in the Giegers ' home

by the Department. In addition to J.D., the re were other

children in the home , in cluding Tyler, a non - foster care child

placed privately by Camelot with the Giegers , as well as the

Giegers ' own adopted son. All of the children in the home had

been abused prior to their placement with the Giegers .

8 . J.D.'s previous situation befor e coming to the Giegers '

home was particularly egregious. He had been starved, locked in

a closet, had his fingernail s removed by his parents and

otherwise was the victim of severe parental abuse before coming

into foster care. His was a case of high pub lic notoriety and

appears to have been thus treated with a heightened level of

attention by the Department, as compared to the case of other

children.

9 . When J.D. arrived at the Giegers ' home after his

initial rescue from his earlier situation, he pur portedly

weighed 58 pounds and was only 4 f eet 8 inches tall , at the age

of 17 years. During the time he resided with the Giegers, he

grew several inches and gained almost 80 pounds due to the care

given him by the Giegers. He was placed on special vitam ins and

formula , in addition to his regular meals , in order to restore

him to appropriate physical condition. Because of his physical

condition, extra efforts were made by the Petitioners to assure

his safety. They even placed him in a private school bec ause

they felt he would be at risk attending a large public high

school , which he would otherwise have been required to attend.

10 . J.D. did well at the Giegers ' home initially and it

was planned for him to remain in their home after he reached 18

year s of age , if he continued to adjust favorably to being a

member of their family. He began " acting out " more severely,

however, with problematic behaviors . U ltimately it was

determined by both the Giegers and Camelot that he should not

remain in their hom e after he turned 18 because of the adverse

impact he was having on other children residing in the home.

11 . Before the determination was made that J.D. would not

remain in the Giegers ' home after he reached 18 years of age,

the Department had praised th e Petitioners ' care of J.D. After

that decision was made , an attorney for the Department suggested

to M r s. Gieger that she be hired by the Department to provide

special services to J.D. Apparently there was a funding problem

with regard to continuing J.D . in private school , and this was

suggested as a means of funding the private school.

Mrs. Gieger, however, did not feel this funding was appropriate

because she was al ready being paid by Camelot for these

services , and expressed this to the attorney , she therefore

declined that offer.

12 . In December 2005 the Department decided to have J.D.

re - evaluated by his original evaluator, a psychologist,

Dr. Dykel. During his meeting with Dr. Dykel, J.D. apparently

told Dr. Dykel that the Giegers had cursed in his presence and

in the presence of other children, used racially derogatory

language concerning Black children in the foster children s '

presence and that Mrs. Gieger ha d s at on him as a means of

restraint or punishment. He also stated that he was being

d eprived of food. This meeting occurred on a Friday afternoon .

After the meeting J.D. returned to the Giegers ' home and made

statements about what he had said to Dr. Dykel. Initially the

Petitioners though t nothing about the statements , but on the

follow ing Tuesday an abuse report was called in indicating that

the Giegers had inappropriately punished J.D. in the manner he

had related to Dr. Dykel.

13 . The child Tyler, who had been placed in the Giegers '

home was a child who suffered from severe mental h ealth issues.

He had been placed privately with Camelot by his father. He had

set his father 's and step - mother's bed on fire the previous

Christmas because he did not receive a toy, a "PS2," that he

asked to be given him for Christmas. There was testimo ny that

he was told by J.D. that if he would make a statement against

the Giegers to the Department that he would get the PS2 toy that

he wanted. He was taken by Erica Summerfield, an investigator

assigned by the Department to the case concerning the abus e

report, to the "Child Advocacy Center," for a statement. He

apparently made such a statement , of the above import , but then

recanted it. Nonetheless, based only on the statement made by

J.D. and by Tyler, Erica Summerfield made a determination that

the abuse report should be determined to be "founded." As a

result of her report (and apparently a past history of abuse

reports concerning the Giegers ' foster care facility, none of

which had been proven to be "founded" ) , Camelot apparently

suggested to the Giegers that they voluntarily relinquish their

license, purportedly telling them that they w ould still have the

ability to challenge the abuse report through a Chapter 120

hearing. They sought to obtain a Chapter 120 hearing and the

Department denied the ir request. An appeal ensued and the

denial by the Department was affirmed by the District Court of

Appeal.

14 . During the pendency of that appeal , the Giegers filed

an application to renew their license , which was denied. This

proceeding ensued after that denial , when the Giegers requested

a formal proceeding.

15 . The Department offered the testimony of Erica

Summerfield who was a child protective investigator assigned to

the investigation. She was the supervisor of the person who

interviewed J.D. a nd Tyler, apparently the only sources of

investigative information leading to her finding that abuse had

occurred. Ms. Summerfield testified that her concerns about the

Giegers led her to make a report finding that abuse had occurred

because alarms had be en placed on the bedroom doors of

children s' bedrooms in the Giegers home; that the Giegers had

used excessive restraint against J.D. (allegedly held him on the

floor and lay on him or sat on him); and that J.D. had been

mentally injured by the Giegers and not provided with sufficient

food. She also opined that Mrs. Gieger had made inappropriate

statements to J.D.

16. None of these purported findings are supported by

credible evidence. Initially it is found that J.D.'s and Tyler

statements to the inter viewer , who then apparently related them

to Ms. Summerfield, constitute , at best , " second - hand " hearsay.

Neither the interviewer nor J.D., nor Tyler testified at the

hearing , and Tyler later recanted his statements made to the

interviewer. The Respondent 's exhibits two, three, and four,

the interview reports , were offered into evidence and were only

admitted regarding a basis for the Department's course of

conduct in the matter , but not for the truth of any facts

depicted on the face of those exhibits.

1 7 . Concerning the alleged complaint , related to the

interviewer , regarding lack of food, the credible persuasive

evidence shows that J.D. actually grew several inches after

being placed with the Giegers , even though doctors had opined

that he would not gr ow much , if at all , because of the

starvation that had occurred early in his life. He also gained

substantial weight while be ing cared for by the Giegers , so that

he essentially looked like a normal child by the time he left

the ir care. He had been emaci ated when he came to the Giegers '

care and had been described as looking like a "concentration

camp victim." He was described as being far smaller than a

child of his age when he came to the Giegers ' care , but seven

months later appeared to be essentially a normal child in

physical appearance. The evidence , in fact , clearly supports

the determination that the Giegers did provide J.D. with

appropriate nutrition during their care of him. The basis for

the alleged abuse regarding his not be ing properly fed is simply

not credible.

18 . The Giegers had also been accused by J.D. or Tyler , or

both , with using inappropriate language , racial slurs and

cursing in J.D.'s presence, purportedly causing him mental harm.

However, mental health experts present in the Giegers ' home on a

weekly and almost daily basis had never heard any inappropriate

language , including any inappropriate racial language or

inappropriate cursing in the children s' presence during their

visits to the Giegers ' home. Many of these visits we re

unannounced.

1 9 . Two of the counselors or mental health professionals

often present in the home were African - American. They found no

evidence of racial tension or racially derogatory language being

used by the Giegers or in the Giegers ' home. It wa s their

belief that t he Giegers did not exhibit any behavior which

suggested racism. Further, there were no Black children placed

in the Giegers ' home during the time that J.D. was there. There

is simply no credible evidence to support any finding that

i nappropriate language was used by Mr. or Mrs. Gieger in J.D.'s

or other childrens' presence , of a racially derogatory nature or

otherwise.

20 . Part of the basis for the abuse finding (and the

reason for license denial) was excess restraint or "sitting on"

J.D. as punishment . This position was based on the statements

of the two children , J.D. and Tyler. One of them, Tyler,

tearfully recanted his story shortly after he made the

statement.

2 1 . Erica Summerfield testifying for the Department,

admitted in her testimony that she was aware of his recantation.

She also admitted that Tyler's parents had asked her more than

once to allow him to be placed back in the Giegers ' home . They

also had disclosed to her that he had a habit of making

inappropriate st atements and lying. There is evidence that J.D.

had told him that he would receive a toy he wanted very much if

he would make a statement to the Department that J.D. had been

abused by the Giegers. Most importantly, J.D. had identified

the point in time whe n Ms. Gieger was supposed to have s at on

him as during an occasion when he broke a window at the house.

2 2 . Other mental health providers who were in the home

around that time reported never seeing any bruise marks or other

evidence of injury to J.D. or at any other time. They also

reported that Mrs. Gieger was especially careful of his safety

because of the seriously debilitated condition of his body .

Most importantly, however, during the time that the window was

broken by J.D. and he was severely a cting out, Mrs. Gieger was

on the phone with a professional from Camelot who was helping

her to calm or "de - escalate" J.D. and who remained on the phone

with Mrs. Gieger during the entire incident. That expert heard

nothing which indicated that Mrs. Giege r had sat on the child or

in anyway inappropriately restrained him.

2 3 . Mrs. Gieger denied using physical restraint s on the

foster children at the hearing. The Department maintains,

however, that in two prior reports discussed in Camelot's

letter, rep ort 1999 - 127436 and 2002 - 007021, the Giegers had

admitted restraining foster children. In the 1999 incident the

child purportedly sustained rug burns on the face while being

restrained on the floor by Mr. Gieger. These reports are at

best second - hand hea rsay. Moreover, they are not reasons of

which the Petitioners were provided notice, as part of the basis

for the denial of their licensure application which triggered

this proceeding. Moreover, both of those incident s were

immediately reported by the Gie gers themselves to the Department

and , ironically, the Department did not see fit to make any

determination at the time , or since, that those incidents

amounted to abuse. No finding was made that those alleged

incidents were "founded" abuse episodes.

2 4 . Moreover, the Department relies upon an incident where

Mrs. Gieger purportedly stated that she used force against J.D.

when he tried to grab her neck. She purportedly told Ms.

Summerfield in an interview that she gave J.D. a "therapeutic

bear hug" by grabbing his arm and turning him around. He fell

to the floor as a result. Parenthetically , not even the

Department claims that she forced him to the floor.

Mrs. Gieger's testimony at hearing concerning this event was to

the effect that she grabbed J.D. 's wrist in order to prevent him

from striking her or grabbing her neck and that he just

collapsed to the floor. The Department then maintains that

foster parents are not permitted to use such "force" on foster

children , such as grabbing J.D.'s wrist , bec ause it equates this

to the use of corporal punishment and that grabbing a child's

arm or wrist could " traumatize " an already vulnerable foster

child.

2 5 . Mrs. Gieger's testimony, however, indicates that the

use of "therapeutic bear hug , " even if it oc curred, is part of

an approved method of training which she had , which is designed

to safely manage children who are acting out in a potentially

dangerous way , until they can calm down. She testified that

Camelot, the Department's contracting agent, had approved this

training for her. Moreover, when a foster parent is in danger

of attack by a 17 - year - old , even a somewhat debilitated child ,

who threatened striking or grabbing the foster parent by neck or

throat, to grab his arm or wri s t to prevent such co nduct is

reasonable and does not constitute unreasonable restraint.

Assuming this event occurred , to characterize the grabbing of a

child's wri s t , to prevent injury or potential injury to a foster

parent or another, as excessive force or "corporal punishm ent"

is non sensical . There is no credible , persuasive evidence that

either Mr. or Mrs. Gieger engaged in any excessive force or

restraint amounting to abuse.

2 6 . A concern was raised by Dr. Dykle, the psychologist,

who was fearful of the fact that alarm s had been placed on

children s' rooms in the foster home. Ms. Summerfield based her

finding that abuse had occurred , in part , on the report that the

alarms had been placed on the doors of some of the children s'

rooms. Ms. Summerfield, however, admitted i n her testimony that

alarms are often and routinely placed on children s' rooms in

therapeutic foster care homes. The mental health experts who

testified clearly established that in every therapeutic foster

home such alarms must be placed on bedroom doors because of a

safety concern for other children. C hildren who are placed in

this type of home are often serious safety risks for themselves

or for other children. They have often been found themselves to

be perpetrators of inappropriate or violent conduct . Many times

they are children who have been sexually abused and have

themselves become sexual perpetrators. In fact, there was a

child in the Giegers ' home at the time J.D. was there who had

set his parents ' bed on fire because he did not get a desired

toy for Christmas. Dr. Dykle's apparent grave concern about

alarms being placed on the children s' bedroom doors is

surprising since it appears to be completely contrary to

generally accepted , safe practice for therapeutic foster homes,

something that he s hould have been aware of if he is indeed an

expert in child abuse issues. Ms. Summerfield admitted that she

was aware that this was a virtually universal safety practice in

therapeutic foster homes and yet , paradoxically , used it as a

factor in support of her finding that abuse had occurred , as a

basis of denial of re - licensure.

2 7 . Ms. Summerfield also admitted that she had spoken with

Camelot professionals who assured her that the Giegers had been

exemplary foster care parents . S he acknowledged that J .D. had

made untrue statements in the past about other foster

placements. She admitted that the only evidence of improper

restraint , or any kind of abuse or neglect in the home , was

essentially predicated on the statements of the two children who

did not testify in this proceeding. She conceded that one of

them had recanted and she knew of this well before the hearing.

2 8 . Mental health experts from Camelot who testified ,

established that it is a very frequent event for foster children

placed in therapeu tic foster homes to act out and to make false

statements and accusations concerning their care - givers. They

also indicated that J.D. had made such false allegations in the

past against other care givers . This was all information that a

thorough investigat ion would have made known to the Department ,

at the time it was making the determination that there was a

basis for a finding of abuse.

2 9 . The only witness other than Ms. Summerfield, presented

by the Department , was Amy Hammett, the licensing official who

actually signed the letter denying the license application. She

testified that she did not review all of the documents that made

up the Giegers ' license application. Some other department

employee had been assigned to the case and it had been later

transferred to Ms. Hammett before the final decision was made .

She had reviewed five relevant forms , but nothing else.

30. She had no evidence to support the Department's

position that the Giegers had relied upon the foster care

services they provided for income to support their own family ,

other than the fact that they had taken a legal position in the

appeal from the previous attempt at a Chapter 120 proceeding , to

the effect that they had something in the nature of a property

interest in their foster care license. This may ha ve been a

necessary position to take in an attempt to establish

jurisdiction or standing in that proceeding, but other than

that , and one statement attributable to Mr. Gieger that there

was an adverse financial e ffect on the Gieg ers related to that

proceeding , it was not establish ed that the Giegers were relying

on the income from foster care services to support their family.

Rather, in the context of that statement and the Giegers legal

position during the course of their appeal , the reference was

most likely made in the context that the hiring of an attorney ,

with related expense, in prosecuting the first case , including

an appellate proceeding , caused an adverse financial e ffect,

which is understandable. That does not constitu te credible ,

persuasive evidence that the Giegers were relying upon foster

care services as income to support their own family and

themselves in violation of any Department rule. Mrs. Gieger ,

indeed , testified under oath that they did not rely upon foster

care income to support their family. Her testimony and that of

others showing that they have successfully operate d a well -

managed , licensed home for a substantial period of time, shows

that the Petitioners are financially capable of operating safely

and successfully under a new license. There is no persuasive

evidence to the contrary.

31 . The greater weight of the credible evidence is

persuasive in establishing that the Giegers provide quality

therapeutic foster care and have not engaged in the abuse w ith

which they are charged. Even J.D. expressed the desire to come

back and live with the Giegers and, after he reached 18 years of

age , he did so. This certainly does not support the existence

of abuse. Moreover, Earnest Thomas, J.D.'s guardian ad lite m

established that the Giegers provided J.D. with excellent care.

He was a frequent visitor in their home and paid close attention

to J.D.'s well - being during times pertinent to this case.

3 2 . Further, the caseworker , Sheila Donato, was the person

who t ook J.D. from the Giegers ' home when he was removed by the

Department. On this occasion she stated that he was tearful and

crying when he left the Giegers ' home and asked if he would be

able to come back to their home for Christmas. There were no

bruises or other evidence that he had been harmed in any way.

She established that the fact that he returned to the Giegers

home after he turned 18 years of age is evidence that he had

never been abused while there.

3 3 . After the Giegers ' foster care license h ad been

relinquished voluntarily by them under the above - referenced

circumstances, Tyler's parents executed "guardianship papers"

placing Tyler in the custody or guardianship of the Giegers and

they continue to allow Tyler to reside in their home. The

Dep artment maintains that this was an illegal placement because

the Giegers were not a licensed foster care facility at that

time and had not secured a court order allowing Tyler to be in

their guardianship. The circumstances were, however, that

Ms. Giegers ' mother was the attorney who prepared the

guardianship papers for the Giegers and for Tyler's parents to

execute . She rendered an opinion to them that that was

sufficient to justify allowing Tyler to remain in the Giegers '

home. Ms. Gieger testified that she knew of other teachers and

other individuals who had used similar documents to establish a

basis to take custody of a child in their home. She believed

that what she was doing was legal. There was no intent by her ,

or Mr. Gieger , to engage in any ki nd illegal custody ,

guardianship or circumvention of the foster care licensure

requirements , or any other illegal act. There is no evidence

that Tyler had been adjudicated dependent and subject to the

custody of the Department.

CONCLUSIONS OF LAW

3 4 . The Division of Administrative Hearings has

jurisdiction of the subject matter of and the parties to this

proceeding. § § 120.569 and 120.57(1), Fla. Stat. (200 6 ).

3 5 . Section 409.175(6)(h), Florida Statutes (2006),

provides in part:

Upon determination that the applicant meets

the state minimum licensing requirements,

the Department shall issue a license without

charge to a specific person or agency at a

specific location.

3 6 . In essence the Department initially denied the

application for licensure bas ed upon its view : (1) that the

Petitioners failed to use appropriate discipline , as outlined in

Florida Administrative Code rule 65C - 13.010(1)(b)(5); (2) that

the Petitioners were operating a foster home for profit which

was a violation of Florida Adminis trative Code Rule 65C - 13.010

by placing their "own profit above the best interest of any

children placed in" their home; and (3) that they breached the

public trust by violating rules adopted for the safety and

welfare of children in their care , in violati on of Section

409.175(2)(f), Florida Statutes (2006). There is no credible ,

persuasive evidence that any of these bas es relied upon for

licensure denial are in fact true of the Petitioners.

3 7 . The evidence presented does not support that the

Petitioners improperly disciplined children in violation of

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

The rule provides that foster parents should "discipline

children with kindness, consistency, and understanding, and with

the purpose of help ing the child develop responsibility and self

control." The evidence shows that the children placed in the

Petitioners ' therapeutic foster home were treated with

understanding and consistency. The Giegers had been

specifically trained to deal with childr en with disciplinary or

behavioral problems. The evidence shows that they attempted to

help J.D. and all the other children in their home develop

responsibility and self control. The rule provides that foster

care parents must help each child "learn that he is responsible

for his behavior by teaching him the natural and learned

consequences of his behavior."

3 8 . The evidence is clear that the Petitioners provided

guidance directed at teaching children responsible behavior

through learned consequences. T here was persuasive, substantial

evidence that a reward system was used in the home to provide

rewards to be earned for good behavior . In accordance with the

rules the Giegers employed "positive methods of discipline."

Their disciplinary methods included loss of privileges ,

reinforcing acceptable behavior, expressing verbal

disappointment with a child's behavior, restricting a child's

activities and re - directing the child's activity. These are all

behavioral adaptations specifically listed in the above - c ited

rule. The preponderant , persuasive evidence shows that these

types of procedures were followed by the Giegers in their foster

home.

3 9 . Testimony of professional people actually appointed or

assigned to the children 's cases clearly shows that the Giegers

were following the scope of these rules. The statement of Tyler

at the Child Advocacy Center and the statement of J.D. to

Dr. Dykle is the only attempted indication that the Giegers

engaged in any type of conduct or action outside the scope of

the se rules. These statements were shown to be untrue. Tyler

recanted after returning home to his biological parents. His

biological father made it clear that Tyler had frequently made

false allegations in the past. Indeed , he showed his continuing

respec t for the Giegers ' abilities at parenting and caring for

children by placing Tyler back in their home under a custody or

guardianship agreement with the Giegers. Experts in child care

and mental health , with training and experience with children

with disc iplinary problems , established that the Giegers used

appropriate methods.

40 . These witnesses were frequently present in the home in

the course of their duties , in overseeing the care of these

children. Several of the m testified that untrue allegations are

frequently made by children in the foster care system,

especially children who have in the past been serious ly abused.

There was testimony from J.D.'s therapist that he had made false

allegations against foster parents in the past. J.D.'s

allegation concerning improper punishment of him by the Giegers

was described in his statement as being on the occasion when he

broke a window in their home. This occurred when the Camelot

mental health therapist assigned to his case was present on the

phone, at Mr s. Giegers' behest , listening as he was de - escalated

during his misbehavior episode. Th e therapist heard nothing to

indicate any improper discipline occurring.

41 . Moreover, there was no evidence that J.D. had not been

properly fed in the Giegers ' home. The evidence was

overwhelming that he had been properly fed since he experienced

significant growth and weight gain , so that he was at an

appropriate weight for his age at the time he was removed from

the home.

4 2 . There was no evidence to indicate th at the Giegers had

made any kind of racially inappropriate statements or engaged in

cursing in the children 's presence. W itnesses who were mental

health specialist s assigned to the cases of the children placed

in the Giegers ' home, and present in that hom e unannounced on

frequent occasions, observed multiple times that appropriate

discipline of the children was used and that appropriate

language was used in the children 's presence. There is no

credible evidence to support any finding that inappropriate

pu nishment or language was engaged in by the Petitioners in the

home.

4 3 . Secondly, the allegation that the Petitioners had

placed their own profit interest over the best interest s of the

children placed in their home , and were engaged in foster care

in t heir home for profit , was not supported by the evidence.

The person who wrote the letter denying the application

testified that she had not even reviewed any financial

information contained in the Giegers ' application. The sole

basis for the Department's position in this regard was the

Giegers ' position that they had taken in their first attempt to

obtain a Chapter 120 hearing concerning the abuse report , and

the original denial of their foster license , to the effect that

they had an interest tantamount t o a property interest in their

license. Even though Section 409.175(2)(f), Florida Statutes

(2006), states in effect , that there is no property interest in

such a license , but that rather it is a privilege , does not mean

the Giegers ' attempt to exercise t heir Chapter 120 rights and

contend that they have such a property interest should be a

basis for denial of their licensure application. The

preponderant evidence does not establish any improper motive of

generating income as the paramount interest in see king

licensure. The ir position in this regard was not an admission

that they are basing their family's financial well - being or

income on the operation of their foster care home or facility.

Mr. Gieger's statement concerning adverse financial impact

invo lved in pursuing the licensure - related proceeding appears to

have been more related to the legal expense involved , rather

than decrying the potential loss of a substantial portion of the

family's income.

4 4 . The abuse - related bas es for licensure denial, as found

and referenced - above, clearly have not been established by

credible , persuasive evidence. There is no preponderant

evidence to show that the Giegers engaged in any sort of abusive

conduct or behavior. There is no showing that they breached the

public trust by violating rules adopted for the safety and

welfare of children in their care.

4 5 . There was a subsequent basis for denial alleged after

this proceeding had commenced, to the effect that the

Petitioners illegally allowed Tyler to be place d in their home.

Tyler's father signed " guardianship " or " custody " documents

making the Giegers custodians or guardians of Tyler . The

Department takes the position that there should have either been

a court order making them the legal guardians or they s hould

have a foster care license. This is because they , in the

Department's view, allowed an " unrelated child " to be placed in

their home for greater than 90 days without a foster care

license. See § 409.175(4)(a)(b) and (d), Fla . Stat . (2006).

46. Pa renthetically , there is a substantial likelihood

that a court would enter an order approving the arrangement

since all parties , including the proposed "guardian" and the

biological parent , agreed that the child should be placed with

the Giegers. Moreover, and more pointedly, the preponderant ,

credible evidence indicated that the Giegers had no intention of

violating the law with this arrangement. They were aware that

the ir foster care licensure was not in effect and, not wanting

to engage in an illegal ac t, they believed that entering into

the guardianship or custodial agreement received from the

child's parent w as sufficient to establish a legal basis for

their allowing the child Tyler to reside in their home. They

obtained an opinion from an attorney th at such a placement was

appropriate under those circumstances. Indeed , the private

guardianship or custodial arrangement may be entirely legal.

There is no evidence or legal authority offered to prove that it

is not. If either Petitioner is thus a guard ian, the above

statute is not violated. Moreover, if sub - paragraphs (a) and

(b) are considered, in pari materia , it would appear that such a

placement by a legal parent should be lawful. There was no

proof that the child had been adjudicated dependent , s o a

private guardianship may be lawful. In any event, they had no

intention of engaging in conduct in illegal circumvention of the

relevant foster care licensure requirements.

4 7 . Section 409.175(9), Florida Statutes (2006) , grants

the Department discr etion to deny a licensure for an intentional

act that materially affects the safety of any child in the home

or for a violation of the provisions of Section 409.175 or the

regulation s promulgated pursuant to that section , as contained

in Florida Administra tive Code Chapter 65C - 13. The use of the

word "may" in that section indicates that the Department is

given discretion in denying or granting licensure based upon any

evidence of a violation. See Heburn v. Department of Children

and Families , 772 So. 2d 5 61, 563 (Fla. 1st DCA 2000). Even if

the placement of Tyler in the Petitioners ' home is a violation

because they were not then currently licensed , that placement

would only be thus illegal if the attempted guardianship or

custody arrangement did not compl y with law . That circumstance

has not been established in the record in this proceeding.

4 8 . In any event, if Tyler's placement in the home at the

request of Tyler's father is a violation , because licensure was

not current at the time, this is not a su bstantial or

intentional failure to comply with licensure requirements. It

was done under the belief that the arrangement was legal (as

indeed it may be) . T he Giegers were attempting to continue to

provide the quality of care for Tyler that they and Tyle r's

father desired in their facility in a legal manner ; o therwise ,

they would not have engaged in attempting to establish a

guardianship or legal custodial arrangement as they did. Thus ,

even if the arrangement concerning Tyler were a technical

violation , which was not proven, the discretion of the

Department should be exercised in favor of granting licensure

under these circumstances.

4 9 . In summary, there has been no preponderant persuasive

evidence to show that any abuse or other basis for denial of

licensure was engaged in or committed in by the Petitioner s .

RECOMMENDATION

H aving considered the foregoing Findings of Fact,

Conclusions of Law, the evidence of record, the candor and

demeanor of the witnesses, and the pleadings and arguments of

the parti es, it is, therefore,

RECOMMENDED that a final order be entered by the Department

of Children and Family Services granting a foster home license

to the Petitioners, authorizing their operation as a th erapeutic

f oster h ome.

DONE AND ENTERED this 9 th day of August , 200 7 , in

Tallahassee, Leon County, Florida.

S

___________________________________

P. MICHAEL RUFF

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Fl orida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with Clerk of the

Division of Administrative Hearings

this 9 th day of August , 200 7 .

C OPIES FURNISHED :

Jerri A. Blai r, Esquire

Lockett & Blair

Post Office Box 130

Tavares, Florida 32778

Ralph J. McMurphy, Esquire

Department of Children and

Family Services

1601 West Gulf Atlantic Highway

Wildwood, Florida 34785

Gregory Venz, Agency Clerk

Department of Children and

Family Services

Building 2, Room 204B

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

John J. Copelan, General Counsel

Department of Children and

Family Services

Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

Robert A. 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 the right to submit written exceptions with in

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.