10-004441 Department Of Children And Family Services vs. Hector Diaz And Rosa Vazquez Status: Closed Recommended Order on Tuesday, November 30, 2010.

Summary: Petitioner met its burden of proving by a preponderance of the evidence that Respondents violated foster home licensing rules and should have their foster home license revoked.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES , )

)

Petitioner , )

)

vs. ) Case No. 10 - 4441

)

HECTOR DIAZ AND ROSA VAZQUEZ , )

)

Respondents . )

)

RECO MMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on September 17, 2010, in Bartow, Florida, before Elizabeth W.

McArthur, a duly - designated Administrative Law Judge of the

Division of Administrative Hearings.

APPEARANCES

For Pet itioner: Stacy N. Robinson, Esquire

Department of Children and

Family Services

1055 Highway 17 , North

Bartow, Florida 33830

For Respondents: Jeff Holmes, Esquire

470 West Davidson Street

Post Office Box 34

Bartow, Florida 3383 1

STATEMENT OF THE ISSUE

The issue in this case is whether Respondents' foster home

license should be revoked pursuant to Section 409.175, Florida

Statutes (2009), 1 based on alleged violations of Florida

Administrative Code Chap ter 65C - 13.

PRELIMINARY STATEMENT

By certified letter dated May 24, 2010, the Department of

Children and Family Services (Department or Petitioner) advised

Hector Diaz and Rosa Vazquez (Respondents) of the Department's

intent to revoke Respondents' fost er home license, based on

several alleged violations of foster home licensing rules in

Florida Administrative Code Chapter 65C - 13.

Respondents timely requested an administrative hearing

involving disputed issues of material fact to contest the

proposed re vocation. The matter was forwarded to the Division

of Administrative Hearings for assignment of an Administrative

Law Judge to conduct the hearing requested by Respondents.

The final hearing was held in Bartow, Florida, on

September 17, 2010. Petitioner presented the testimony of Donna

Renna, Susan Ripley, Cynthia Lanning, Tamelia Thomas - Dickerson,

Luzeneida Vigo, Kim Daugherty, and Maria Nistri. Petitioner's

E xhibits A through J were received into evidence. Respondents

testified on their own behalf wi th the assistance of Spanish -

English I nterpreter Lissette Corsa, who also provided

translation assistance to Respondents throughout the hearing.

In addition, Respondents presented the testimony of Ro s e

Castillo. Respondents ' E xhibit 10 was received into evidence.

The Transcript of the final hearing was filed on October 4,

2010. At the conclusion of the final hearing, the parties

requested 15 days from the filing of the Transcript in which to

file their proposed recommended orders, which was allowed by t he

undersigned. On October 19, 2010, Petitioner requested an

extension of time until October 25, 2010, in which to file

proposed recommended orders. Respondents did not object to the

requested extension, which was granted. Petitioner timely filed

its Pr oposed Recommended Order (incorrectly denominated

Respondent's Proposed Recommended Order) and that submission has

been considered in the preparation of this Recommended Order.

Respondents did not file a proposed recommended order.

FINDINGS OF FACT

1. Respondents obtained a foster home license issued by

Petitioner in 2008. This license authorized Respondents to

receive and care for one or more foster children who would live

in their home.

2. Petitioner is the state agency responsible for

licensure of foster homes. Petitioner carries out its foster

home licensing responsibilities working through local third -

party providers called supervising agencies. In Respondents'

area, Heartland for Children (Heartland) was the supervising

agency that provided foster home licensing services, such as

training and inspecting for compliance with licensing

requirements.

3. Petitioner is also responsible for foster children

placed in its charge. Petitioner carries out its

responsibilities related to foster childre n care, supervision,

placement, and oversight working through third - party providers,

including supervising agencies that are licensed as child

placing agencies, like Heartland, and entities that contract

with Heartland to provide certain services. In Resp ondents'

area, Devereax is one of four providers contracting with

Heartland to provide foster child case management services.

4. From early 2008 through November 2009, Cynthia Lanning,

a r e - licensing s pecialist working for Heartland, counseled

Respondent s and worked with them regarding licensing

requirements for their foster home. During this time,

Ms. Lanning was able to effectively communicate in English with

Ms. Vazquez; Mr. Diaz did not speak English as well and was

mostly absent when Ms. Lanning was at Respondents' home to work

with Ms. Vazquez.

5. In approximately April or May 2008, Ms. Tamelia

Thomas - Dickerson, a foster child case manager working for

Devereax, began working with Respondents with regard to the

placement of a foster child, J.G., in their custody.

Ms. Thomas - Dickerson was in regular contact with Respondents

from the time of J.G.'s placement, when he was just a few months

old, through June 2010 , when J.G. was removed from Respondent s '

home by a circuit court order. Throughout this t ime,

Ms. Thomas - Dickerson was able to effectively communicate with

Ms. Vazquez in English; Mr. Diaz was mostly not present.

6. In June 2008, Respondents signed a bilateral service

agreement required by the Department to identify the

expectations for both foster parents and the Department (and its

third - party providers) on behalf of the children in the foster

care program. This bilateral service agreement is a Department

form adopted as a rule, and it is in English. Respondents

confirmed that they bo th read, understood, and signed this

agreement, as is required by Department rule.

7. Foster home licenses are issued for one year at a time

and must be renewed on an annual basis. Respondents'

application for renewal of their license in 2009 was initia lly

denied by the Department and lapsed on September 27, 2009.

Respondents requested an administrative hearing to contest the

denial of their renewal application, and by settlement agreement

dated March 17, 2010, the Department agreed to issue a foster

ho me license to Respondents, retroactively effective back to

September 2009 and expiring on September 27, 2010. A condition

imposed in the settlement agreement for renewal of Respondents'

license was that within 60 days of the agreement, Mr. Diaz was

requir ed to complete eight hours of training.

8. Before agreeing to renew Respondents' license pursuant

to the settlement agreement, Maria Nistri, the Department's

program administrator for the C entral Florida region, visited

Respondents' home to address co ncerns she had regarding

confusion about the facts in the license application and

apparent inconsistent responses given by Respondents to

Heartland. Based on that meeting, Ms. Nistri decided to give

Respondents another opportunity to renew their license.

9. One area of confusion was with respect to the household

composition, including whether Mr. Diaz was living in the home

or not, who was actually living in the home, what their

employment status was, and other areas that were not clear.

Ms. Nistri emph asized to Respondents at their March 2010 meeting

that it was important to have an accurate understanding of the

household composition and be able to address background

screening issues.

10. The issue of household composition is important ,

because it dict ates the potential scope of background screening

requirements. Licensed caregivers like Respondents are required

to notify the supervising agency (Heartland) of changes in the

household composition, including not only new household members

living there, b ut also "any individual expected to have

unsupervised contact with the foster child[.]" Fla. Admin.

Code R. 65C - 13.027(3)(c). That is because the supervising

agency or the Department can require background screening for

any individual reasonably believed to be a household member ; any

individual whose presence in the foster home may adversely

affect the health, safety and welfare of children in the house ;

or any individual who has or may have unsupervised contact with

the foster child. Fla. Admin. Code R. 65C - 13.023(1).

11. Notwithstanding Ms. Nistri's willingness in March 2010

to give Respondents another chance by renewing their license,

several issues came to the Department's attention over the next

few months that led to the Department's issuance on Ma y 24,

2010, of a N otice of I ntent to revoke Respondents' foster home

license. The Department's N otice of I ntent to revoke

Respondents' foster home license was based on a determination

that Respondents violated licensing rules in three specific

ways. Firs t, the Department alleged that Respondents violated

Florida Administrative Code Rule 65C - 13.025(5)(d)2., because

Ms. Vazquez altered the dates on the home's fire extinguisher

inspection certificate , and upon verification with the fire

extinguisher inspecti on company , it was determined that

Respondents failed to renew the fire extinguisher inspection

certificate. Second, the Department alleged that during a home

visit on April 30, 2010, it was discovered that one of

Ms. Vazquez' s adult children was either r esiding in Respondents'

home or may have had unsupervised contact with children in the

h ome without undergoing the required background screening, in

violation of Florida Administrative Code Rule 65C - 13.023(1)(c)

and (2). Third, the Department alleged that Mr. Diaz did not

satisfy the required annual training hours for re - licensure and

imposed as an obligation of the recent settlement agreement with

the Department to renew Respondents' license, in violation of

Florida Administrative Code Rule 65C - 13.028(4)( f).

Fire Extinguisher Certificate

12. As part of the license renewal documentation process,

on January 27, 2010, Ms. Vazquez sent a fire extinguisher

certification report to the Department. This document was dated

" 02/05/010, " and upon close examination , the date appears to be

altered. The evidence established that Ms. Vazquez altered the

date on an old fire extinguisher certificate dated February 5,

2007, to make the certificate appear to be dated February 5,

2010. She provided this altered certificat e to the Department,

intending that the altered certificate be accepted to show

compliance with the renewal requirement. This was a

misrepresentation, and a falsification of a document.

13. Although Petitioner alleged in its May 24, 2010,

letter that the fire extinguisher certificate was not timely

renewed, the evidence showed that it was timely renewed, but the

updated certificate was lost. Thus, most significant in terms

of the safety of the foster child under Respondents' care at the

time, Respondents established the underlying facts intended to

be evidenced by the certificate -- that the fire extinguisher had

been timely checked and was operational at all times.

14. Ms. Vazquez admitted that she should not have altered

the date on the fire extinguisher certificate, but , instead,

should have explained honestly to the Department that she , in

fact , had the fire extinguisher checked , but was unable to

locate the certificate . She acknowledged that she should have

requested additional time to obtain a replac ement certificate

and/or obtain verification from the company that performed the

inspection and issued the updated certificate that it had , in

fact , done so.

15. Ms. Vazquez explained her bad judgment as a lapse

because of her panic when pressed for docum entation that she

could not find and/or because of her inability to communicate

well enough in English. Although Ms. Vazquez acknowledged

altering the date on the fire extinguisher certificate and

submitting the document to the Department for the purpose of

misrepresenting the document as the current certificate,

Ms. Vazquez refused to acknowledge that she had falsified the

document and would only say that she made a mistake.

16. Ms. Vazquez testified that she understood her

obligations under the bilatera l service agreement, including the

requirement that she must not falsify any document that is

submitted to the Department for the Department to rely on.

Violation of Background Screening Requirements

17. On April 30, 2010, Ms. Thomas - Dickerson, the case

manager, visited Respondents' home in the early morning, at

7:45 a.m., to conduct a home visit and check on J.G.

Ms. Vazquez was there , but Mr. Diaz was not, having left early

to go to work. Home visits are intended to assess a wide

variety of compliance issues and requirements, such as who is

present , the physical appearance of the foster child and whether

the child is dressed appropriately, the quantity and condition

of furnishings and play equipment inside and outside,

maintenance of areas inside and o utside of the home, the

presence of any safety hazards , such as exposed wires or

chemicals, the presence of age - appropriate toys, the sufficiency

of food, and whether alcohol is present or accessible in the

refrigerator, among other considerations. The ca se manager

prepares a "chronological notes report" during these home

visits, taking detailed notes of what is observed. For example,

Ms. Thomas - Dickerson's notes from the April 30, 2010, visit

include this observation: "The yard was properly maintained,

but the grass could be mowed . . . ." The notes are then

reviewed with the foster parents before leaving to ensure they

agree with what transpired. Those notes are entered into an

electronic database, usually later that same day.

18. Because it had be en awhile since Ms. Thomas - Dickerson

had inspected Respondents' garage, at the April 30 , 2010, home

visit, she asked Ms. Vazquez to let her inside. Ms. Vazquez was

reluctant at first, but opened the door and turned on the light.

Ms. Thomas - Dickerson firs t saw an older model car that she knew

occupied part of the garage because she had talked to

Ms. Vazquez about it before. Ms. Thomas - Dickerson commented

that she saw Ms. Vazquez still ha d her car, and Ms. Vazquez

said , "Y es " and turned the light out. Ms. Thomas - Dickerson told

Ms. Vazquez to turn the light back on because she ( Ms. Thomas -

Dickerson ) needed to look inside.

19. Ms. Thomas - Dickerson started walking into the garage

and heard a fan. She walked down and around to the other side

of the car and s aw the fan that she had heard . She also saw

food sitting on top of a deep freezer and a television next to a

full - size bed made up with maroon sheets and a multi - color

comforter. She was startled then , because the comforter moved.

She yelled out to Ms. Vazquez, "Someone's in here." Ms. Vazquez

said, "No." Ms. Thomas - Dickerson said again, "No, somebody's in

here." Ms. Vazquez said , "N o ," again. Then Ms. Thomas -

Dickerson went back to where Ms. Vazquez stood in the doorway,

grabbed her hand, walked her over to the bed and pointed,

"Somebody is under there." Ms. Vazquez then said that it may be

her son, who sometimes comes t here when he and his wife "get

into it."

20. Ms. Vazquez then started yelling at her son , who did

not respond until Ms. Vazquez p ulled the cover from over his

head ; he then said , "What, Ma?" Ms. Vazquez said to him,

"You're not supposed to be here, you know you're not supposed to

be here, you need to leave now."

21. Ms. Thomas - Dickerson and Ms. Vazquez went back into

the house w here Ms. Thomas - Dickerson told Ms. Vazquez that it

looked like a living arrangement set up in the garage and that

her son was living there. Ms. Vazquez responded, "No, no, no,

he don't live here, I don't want to get in trouble with the

homeowner's associa tion, he don't live here." Ms. Thomas -

Dickerson told her that he could live there as long as went

through background screening first and was approved.

22. Ms. Thomas - Dickerson followed the procedure of

documenting everything she observed during this home visit,

including the surprise garage encounter, and before leaving, she

read her contemporaneous notes to Ms. Vazquez, who agreed they

were accurate.

23. Ms. Thomas - Dickerson also followed procedure to notify

her supervisor and the program director of th e surprise garage

encounter. 2 The next day, Ms. Thomas - Dickerson's supervisor

showed her photos from which she was able to identify

Ms. Vazquez' s son who she saw in the garage.

24. Ms. Vazquez has two sons and a daughter. When the

Department program adm inistrator , Ms. Nistri , met with

Respondents in March 2010, one issue she sought to clarify was

the location of Ms. Vazquez' s children. Ms. Vazquez could only

say where her daughter was. She did not know where her son

Johnny was, and her other son Felix either was incarcerated for

a felony cannabis possession conviction or had just been

released.

25. From Ms. Thomas - Dickerson's photo identification of

the son she saw in Respondents' garage, Ms. Nistri thought that

the son in the garage was Felix. Ms. Va zquez admitted at the

final hearing that she may have told someone that Felix was the

son found in the garage, but that she was just nervous.

26. Ms. Thomas - Dickerson returned two more times to

Respondents' home. The first time was on May 7, 2010, to

con duct another home visit. She checked the garage again and

found that no one was there, and it had been cleaned out. In

particular, the items indicating a living arrangement were all

removed, including the bed, television, and fan.

Ms. Thomas - Dickerson d escribed this home visit as different;

previously, she thought she had always had a good rapport with

Ms. Vazquez , but this time, Ms. Vazquez was not receptive . When

Ms. Thomas - Dickerson asked Ms. Vazquez what was wrong,

Ms. Vazquez responded that her att orney told her that if the

Department is coming in looking for things, look at the social

worker, as if to suggest Ms. Thomas - Dickerson was causing

proble m s.

27. Ms. Thomas - Dickerson went to Respondents' home again

on May 20, 2010, on her day off, becaus e she had received a

notice about a hearing in circuit court scheduled for June 1,

2010, on the Department's motion to modify the custody order on

J.G. to remove him from Respondents' home. Ms. Thomas - Dickerson

had asked her supervisor about whether the R espondents knew of

the hearing and was told that their attorney was supposed to

notify them. But since she was not too far from Respondents'

home, she went there as a courtesy to make sure that Respondents

were aware of the hearing.

28. Ms. Thomas - Dicker son testified that Ms. Vazquez was

home and did not know about the hearing , because she got very

upset, asking what was the purpose of the hearing. Ms. Thomas -

Dickerson told her that she thought it was because Ms. Vazquez

had been inconsistent with her st ories, apparently telling

someone at Heartland that her son Johnny was the one in the

garage on April 30, 2010, because he was doing yard work.

Ms. Thomas - Dickerson reminded Ms. Vazquez that that is not what

Ms. Vazquez had told her that day; she had said nothing about

yard work, and , in fact, her yard had not even been cut that

morning.

29. Ms. Vazquez started getting very emotional, holding

her chest and saying that Ms. Thomas - Dickerson was going to kill

her. Ms. Thomas - Dickerson asked if she needed he r to call an

ambulance, and she said , "N o. " But then for the first time

since Ms. Thomas - Dickerson had been the case manager ( since

2008 ) , Ms. Vazquez said that she needed an interpreter.

Ms. Thomas - Dickerson was surprised, but agreed and contacted a

co - worker, Luz, who had translated before in the office. Luz

got on the phone, and Ms. Vazquez also called Mr. Diaz on

another phone; they went over everything again about the hearing

with Luz translating to Ms. Vazquez and , then , Ms. Vazquez

translating it to Mr. Diaz. Ms. Vazquez told Ms. Thomas -

Dickerson that she could "fix it" if she just changed her story

to say that Ms. Vazquez did tell her on April 30 , 2010, that her

son was there for yard work.

30. After they all hung up, Ms. Vazquez apologized to

M s. Thomas - Dickerson, but then said she never told

Ms. Thomas - Dickerson that her son was in the garage because of

his wife -- that Ms. Vazquez's son told Ms. Thomas - Dickerson that .

But Ms. Thomas - Dickerson never talked to Ms. Vazquez' s son.

31. Both Ms. V azquez and her daughter testified at the

final hearing that , in fact , the son found in the garage on

April 30, 2010, was Johnny, and not Felix. According to their

testimony, Johnny is unmarried and lives with Ms. Vazquez' s

daughter. On April 30, 2010, Ms . Vazquez' s daughter brought

Ms. Vazquez's son Johnny to her house, along with two children

that Ms. Vazquez babysits. Johnny came over that day to mow the

lawn. Johnny had cleaned up the front part of the yard, then he

went into the garage. However, Ms . Vazquez testified that the

fact that Johnny went into the garage did not mean he was living

there because there was no place in the garage to sleep, just a

lot of items accumulated for yard sales.

32. Ms. Vazquez testified Johnny "always" comes to her

h ouse to mow the grass and help out with other chores. He has

access to the garage, and he has access to the rest of the house

as well. While Ms. Vazquez acknowledged that Johnny is a very

frequent visitor, she said that he does not spend the night

becaus e she did not have a bedroom for him. If she had a

bedroom for him, she would let him stay because he is her son.

33. When asked how her son got in and out of her home,

Ms. Vazquez responded that she opened the door for him in the

back. When asked how he got in the garage, Ms. Vazquez said

that she opened the door. When asked to explain why she said no

one was in the garage, Ms. Vazquez said that she did not know he

was in the garage, even though she had opened the door to let

him in the garage. When asked to explain why she yelled at her

son that he was not supposed to be there on April 30, 2010,

Ms. Vazquez explained that it was because Ms. Thomas - Dickerson

frightened her.

34. Ms. Vazquez did not testify about her son Felix' s

whereabouts. However, her daughter testified that Felix lives

up north in Worcester, Massachusetts, with his live - in

girlfriend and daughter. Before his incarceration in Polk

County, he lived with his girlfriend in an apartment nearby, but

went up north after his release.

35 . The testimony of Ms. Vazquez and her daughter on the

subject of the surprise garage encounter was not credible.

Ms. Thomas - Dickerson's account was credible and corroborated by

her contemporaneous notes that she said were read to Ms. Vazquez

who agreed a t the time that they were accurate. Ms. Vazquez

acted suspiciously and evasively when asked to inspect the

garage, as if she knew there was something to hide in there.

And the inconsistencies in her stories since that time confirm

that she is trying to h ide something.

36. Regardless of whether it was Ms. Vazquez's son Felix

in the garage on April 30, 2010, as Ms. Vazquez "may" have told

someone because she was nervous, or whether it was her son

Johnny, neither one of her sons have undergone background

s creening. T he greater weight of the more credible evidence is

that someone who ha s not undergone background screening was

permitted to sleep in the garage, in a bed that someone had made

up with sheets and a comforter, with most of the comforts of

home -- f an, television, and food -- right at hand.

37. The greater weight of the more credible evidence

provided the Department and its supervising agency with a

reasonable belief that someone may have become a member of the

ho usehold or that someone has or may have unsupervised contact

with the foster child, such that the Department or its

supervising agency could insist on background screening.

Mr. Diaz 's Failure to Complete Required Training

38. A condition of the settlement agreement between

Petitioner and R espondents for the renewal of Respondents'

foster home license was as follows: "Within sixty (60) days

from the date the last party signs this agreement, Hector Diaz

shall complete eight (8) hours of training." The settlement

agreement was last signed on March 17, 2010, making May 16,

2010, the deadline for Mr. Diaz to complete the required

training.

39. A certificate of completion confirmed that Hector Diaz

and Rosa Va z quez received one hour of training in a Department -

sponsored course called "Foundatio ns of Practice: Introduction

to Case Management for Children Receiving Psychotropic

Medications Training " on June 8, 2010. However, that training

was completed after the deadline required by the settlement

agreement.

40. At the final hearing, Respondent s offered into

evidence a printed page from a foster care online training

program, appearing to indicate that someone signing on as Hector

Diaz took 11 different training segments and successfully

completed eight of them, for a total of 11 credit hours, on

March 21, 2010. The timing of this apparent training was within

the 60 days required by the settlement agreement.

41. However, Mr. Diaz testified at the final hearing that

he completed these training programs with someone else's help,

"because of the la nguage." Mr. Diaz did not specify whether he

rece ived "help" only in translation or whether he received

substantive aid.

42. The document offered into evidence was altered, with

the street number in the address shown for Mr. Diaz whited - out

and a diffe rent number handwritten over the white - out. Mr. Diaz

admitted that he altered the document to white - out and

hand - write in the street address because he put in the wrong

address when he signed up. However, he also testified that he

took this online test a t someone else's house, presumably the

person who helped him with the training programs.

43. These anomalies raise questions concerning whether

Mr. Diaz himself actually completed the indicated training

courses or whether someone else may have completed the training

courses or provided substantive aid to Mr. Diaz such that he

should not be credited with having completed the courses. Based

on these anomalies, the Department's representative reasonably

testified that additional verification was in order b efore

Mr. Diaz could be given credit for having personally completed

at least eight hours of training as required by the settlement

agreement.

CONCLUSIONS OF LAW

44. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

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

45. Pursuant to Subsection 409.175(2)(f), Florida

Statutes, a family foster home license is a "license" as defined

in the Administrative Procedure Act. But the statute goes on to

describe unique attributes of this particular kind of license:

A license under this section is issued to a

family foster home or other facility and is

not a professional license of any

individual. Receipt of a license under this

section shall not create a property right in

the recipient. A license under this act is

a public trust and a privilege, and is not

an entitlement. This privilege must guide

the finder of fact or trier of law at any

administrative proceeding or court action

initiated by the department.

§ 409.175(2)(f), Fla. Stat.

46. In this license revocation proceeding, the general

procedures in the Administrative Procedure Act pertaining to

revocation of licenses are applicable and were followed. A

letter, which serves as the administrative complai nt for

purposes of this proceeding, 3 was sent by certified mail to

Respondents advising of the Department's intent to revoke their

license. The letter set forth the statutes and rules alleged to

have been violated and the facts or conduct relied on to

est ablish the violation.

47. While in proceedings to revoke a professional license

that constitutes a property right, the licensing agency would be

held to a higher burden of proving the allegations by "clear and

convincing evidence" ; the unique attributes of a family foster

home license as a public trust and a privilege mean s that a

correspondingly lower burden of proof applies in this license

revocation proceeding. Haines v. Department of Children and

Families , 983 So. 2d 602, 603 (Fla. 5th DCA 2008). In

accordance with this authority, the Department has the burden of

proving the allegations set forth in its May 24, 2010, letter by

a preponderance of the evidence. Id.

48. The Department failed to meet its burden of proving

the charged violation with res pect to the fire extinguisher

certificate. The May 24, 2010, letter charged Respondents with

a violation of Florida Administrative Code Rule

65C - 13.025(5)(d)2., which requires for the initial licensing

home study that there be verification of operating fi re

extinguishers with current tags. The initial licensing home

study was not at issue, but at the final hearing, Respondents

submitted verification that the fire extinguisher was

operational at all times and the certificate was , in fact ,

current.

49. A lthough the May 24, 2010, letter also alleges that

the fire extinguisher certificate was altered, t he Department

failed to charge Respondents with any statutory or rule

violation based on th at factual allegation. T he Department met

its burden of proving f actually that Respondents submitted an

altered fire extinguisher certificate, that Ms. Vazquez

falsified the document with the purpose and intent of having the

Department rely on the falsified document, and that this act

violated the bilateral agreement. But the Department did not

set forth in its charging document the corresponding statutory

or rule provisions that were violated by these facts.

50. The Department met its burden of proving by a

preponderance of the more credible evidence the charge that

R espondents violated Florida Administrative Code Rule

65C - 13.023(1)(c) and (2), setting forth background screening

requirements. The circumstances surrounding the surprise garage

encounter provided the Department with the reasonable belief

that the son awa kened in the garage on April 30, 2010, if not an

actual household member, at least may have unsupervised contact

with the foster child. As such, under the charged rule, the

Department could reasonably require background screening of that

person to show th at that person has "good moral character" as

defined in the background screening law and would not be

disqualified from being present in the home where unsupervised

contact with the foster child may occur.

51. As stated in the charged rule, "Failure to co mply with

any requirement for good moral character and background

screening as described in this rule may be grounds for denial,

suspension or revocation of an application or license." Thus,

this charged and proven violation is sufficient grounds to

revok e Respondents' foster home license.

52. While there is no clear, direct evidence that the

garage dweller was , in fact , Ms. Vazquez' s son Felix, who was a

convicted felon and who would not have been approved if he had

undergone background screening, the ci rcumstantial evidence is

extremely suspicious. It is particularly troubling that holders

of a license designated by law to be a "privilege" and a "public

trust" would breach that public trust by being less than

forthright and candid with the case managers and other

Department representatives trying to work as a partnership with

foster parents.

53. As to the third charged violation, the Department met

its burden of proving that Mr. Diaz failed to satisfy one of the

terms of Respondents' settlement agreemen t with the Department

that resulted in the renewal of their foster home license.

Mr. Diaz did not provide sufficient credible evidence that he,

personally, completed eight hours of training. However, the

May 24, 2010, letter relies on this factual predic ate to charge

a violation of Florida Administrative Code Rule

65C - 13.028(4)(f), which requires verification of eight hours of

training as a prerequisite to renewal of a license.

Respondents' license has already been renewed. While arguably

the settlement agreement's condition operated as an extension or

grace period afforded to Mr. Diaz to catch up his training hours

after - the fact, the settlement agreement fails to provide that

the Department may revoke the renewed license if that condition

is not fulfil led.

54. Respondents did not serve themselves well by not being

open and candid, by the inconsistent stories they offered, by

Ms. Vazquez invoking the language barrier only after the

inconsistencies in her stories became apparent, and by now

raising clear doubt in the Department regarding whether

Respondents should have ever been qualified as foster parents

without one of them being able to read and understand English

well enough to understand the forms they are required to read

and sign, such as the bilat eral service agreement. See Fla.

Admin. Code R. 65C - 13.025(3)(b) (requiring prospective foster

caregivers to have read, completed, and signed all documentation

required for licensing, including among many other documents,

the bilateral services agreement) .

55. It is apparent that at least for the time period

detailed in this proceeding, Respondents did not act as if the y

understood that the license they held was a privilege and a

public trust. For example, Ms. Vazquez attempted to excuse her

inappropriat e act of falsifying the fire extinguisher

certificate by explaining that she panicked because she was

being pressed for documentation. T his explanation gives no

comfort or assurance that she will not view future requests for

needed documentation as simila r threats and react the same way.

It is very troubling that Ms. Vazquez still does not realize how

w rong it was and how troubling it is that her reaction was to

alter the document and turn it in to the Department. This is

not the reaction of someone carr ying out the public trust and

working in partnership with the Department representatives. She

should not be panicking when pressed for documentation; she

should candidly explain why she cannot provide what is

requested. This is not just a mistake, it is an acknowledgment

that Ms. Vazquez does not accept her obligation to always be

candid with Department representatives.

56. Similarly, this same impression is left by the

circumstances surrounding the charged and proven violation.

Ms. Vazquez tried to exp lain why she yelled at her son that he

was not supposed to be sleeping in the garage, saying that

Ms. Thomas - Dickerson scared her. Ms. Vazquez told Ms. Thomas -

Dickerson that her son came to the garage to sleep sometimes

when he and his wife "got into it," and yet it seems from the

evidence that neither of her sons had a wife. Further,

Ms. Vazquez admitted that she may have told someone that the son

in the garage was Felix, the convicted felon, out of

nervousness. Even if Ms. Vazquez honestly felt scared and

nervous, that does not excuse her lying to the foster child case

manager and/or lying to others by telling them different

stories.

57. Respondents' actions make clear that they do not

understand or accept the depth of their responsibi lities as the

car egivers of a licensed foster home or the depth of the

Department's oversight responsibilities. As just one final

example of how Respondents did not act as if they were holders

of a license that is a privilege and a public trust, Ms. Vazquez

testified that she came to believe that her case manager,

Ms. Thomas - Dickerson, was causing problems and acting

inappropriate ly while conducting her home visits. A s an example

of what Ms. Vazquez believed was inappropriate conduct ,

Ms. Vazquez described how Ms. Thomas - Dickerson asked for

permission to look into Ms. Vazquez' s refrigerator every time

she did a home visit. Ms. Vazquez did not think that was

necessary or appropriate, even after it was suggested to her

that it was part of the case manager's responsibility t o ensure

that there was adequate and appropriate food for the foster

child and that there were no inappropriate items accessible to

the child (such as beer). In fact, this is precisely the sort

of finding summarized in Ms. Thomas - Dickerson's home visit

no tes. As foster parents, Respondents were allocated public

monies to be used to properly feed, clothe, and care for the

foster child while he was in their custody. It is inexplicable

that foster parents would consider a home visit to be intrusive

and impr oper simply because the case manager always checks for

signs that the foster parents are carrying out their

responsibilities and properly using the public funds allocated

to them.

58. While these circumstances are not an independent basis

for finding a ch arged violation, they are considered as bearing

on the appropriate penalty to recommend for the charged and

proven violation. Under these circumstances, the Department

should exercise its discretion to revoke Respondents' foster

home license for violating Florida Administrative Code Rule

65C - 13.023(1)(c) and (2).

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is:

RECOMMENDED that a final order be entered by Petitioner,

Department of Children and Family Services, find ing that

Respondents, Hector Diaz and Rosa Vazquez, violated Florida

Administrative Code Rule 65C - 13.023(1)(c) and (2); and revoking

Respondents' foster home license as the penalty for such

violation.

D ONE AND ENT ERED this 30th day of November, 2010 , in

Ta llahassee, Leon County, Florida.

S

ELIZABETH W. MCARTHUR

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing ( 850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 30th day of November , 2010 .

ENDNOTES

1/ Unless otherwise indicated, all references to the Florida

Statutes are to the 2009 version.

2/ See Fl orid a Admin istrative Code R ule 65C - 13.027(1)(d),

addressing changes during the licensed year, and providing as

follows: "All . . . case managers . . . who frequent the

household are responsible for immediately notifying the

supervising agency . . . of . . . a change in household

composition[.] The supervising agency shall notify the lead

agency and licensing authority [the Department] within 24 hours

of learning of . . . a change in household composition[.]"

3/ See Fla. Admin. Code R. 28 - 106.2015(1) ("Prior to the entry

of a final order to suspend, revoke, or withdraw a license, to

impose administrative fines, or to take other enforcement or

disciplinary action against a licensee . . ., the agency shall

serve upon the licensee an administrative complaint. Fo r

purposes of this rule, an agency pleading or communication that

seeks to exercise an agency's enforcement authority and to take

any kind of disciplinary action against a licensee or other

person shall be deemed an administrative complaint.") .

COPIES FU RNISHED :

George H. Sheldon, Secretary

Department of Children and

Family Services

Building 1, Room 202

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

Gerald B. Curington, General Counsel

Department of Children and

Family Services

Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

Gregory Venz, Agency Clerk

Department of Children and

Family Services

Building 2, Room 204B

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

Stacy N. Robinson, Esquire

Department of Children and

Family Services

1055 Highway 17, North

Bartow, Florida 33830

Jeff Holmes, Esquire

470 West Davidson Street

Post Office Box 34

Bartow, Florida 33831

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written e xceptions 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.