11-003235 Connie Lewis vs. Department Of Children And Families Status: Closed Recommended Order on Thursday, October 27, 2011.

Summary: Department established that Petitioner violated section 409.175(9), Florida Statutes, by failing to report changes in her household composition. Petitioner's request for renewal of her foster home license should be denied.

S TATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

C. L., )

)

)

Petitioner, )

)

vs. ) Case No. 11 - 3235

)

DEPARTMENT OF CHILDREN )

AND FAMILIES , )

)

Respondent. )

_____________________ _____________)

RECOMMENDED ORDER

A hearing was conducted in this case pursuant to s ections

120.569 and 120.57(1), Florida Statutes 1 b efore Administrative

Law J udge Jessica Varn of the Division of Administrative

Hearings (DOAH). The hearing was held on September 29 , 2011 , by

video teleconference at sites in Miami and Tallahassee, Florida.

APPEARANCES

For Petitioner: Jean - Claude Dugue , Esquire

7872 Northwest 201 Terrace

Hialeah, Florida 33015

For Respondent: Leslie Hinds St - Surin, Esquire

Department of Children and Families

401 Northwest 2nd Avenue, Suite N - 1014

Miami, Florida 33128

STATEMENT OF THE ISSUE

Whether PetitionerÓs request for a foster home license

should be denied due to her alleged failure to comply with

foster care licensing requirements.

PRELIMINARY STATEMENT

By letter dated May 9, 2011 , th e Department of Children and

Families (Department) advised Petitioner of its intent to deny

her foster care home license. It stated:

During the review of your relicensing

file it came to the DepartmentÓs attention

that you failed to disclose that your

daughter, Cleopatris Milledge, was residing

in your home. This issue was brought to the

DepartmentÓs attention on February 18, 2011

after review of two (2) exit interviews by

two (2) different foster children that both

stated they resided in your home with your

daughter. From information and belief, it

appears that Ms. Milledge may have been

residing in the home for several years

without the DepartmentÓs knowledge because

in 2009 another foster child had also

disclosed in their interview that Ms.

Milledge was residing in the home although

when questioned by Citrus, you consistently

denied that Ms. Milledge was a h ousehold

member.

Based on the disclosures made by the

foster children in the exit interviews, on

March 10, 2011, the DepartmentÓs Family

Service Speciali st, Ada Gonzalez along with

Citr us Health NetworkÓs Licensing

Supervisor, Dulce Pupo, made an unscheduled

visit to your foster home and observed your

daughter, Cleopatris Milledge, in the home.

At this visit, Ms. Gonzalez and Ms. Pupo

interviewed the foster child in your home

who also s tated that your daughter resided

in the home and identified her room. Ms.

Gonzalez and Ms. Pupo entered the room

identified as your daughterÓs bedroom and

found womenÓs shoes, clothing and

accessories. Photographs were taken of the

bedroom and its conten ts. At this time, Ms.

Gonzalez and Ms. Pupo questioned you as to

whether your daughter was residing in the

home to which you answered that she was not

a resident in your home.

As part of the relicensing home study

you are required to identify and disclose

every licensing year all household members

and frequent visitors. Since your initial

licensing with Citrus in 2006, you have

never identified your daughter as either a

household member or frequent visitor.

On March 17, 2011, a staffing was

conducted to d iscuss the status of your

foster care license in light of the evidence

gathered by the Department and Citrus. You

were in attendance at the staffing and

stated to the panel that although you did

not feel your daughter had previously been a

household membe r you realized after the

unscheduled visit conducted by Ms. Gonzalez

and Ms. Pupo that she in fact was a

household member despite denying this at the

time of their visit on March 10, 2011.

Furthermore, prior to the March 17,

2011 staffing, there had been a nother

staffing on January 6, 2011 to address your

sonÓs arrest for battery/aggravated assault

that led to an abuse investigation conducted

by the Department and subsequently closed

with verified findings against your son.

Although you were aware that you r son had

been arrested and that there had been an

investigation, you failed to disclose the

arrest to Citrus and/or the Department in

direct violation of Florida Administrative

Code section 65C - 13.027 that requires you to

report any arrests of a household member.

The staffing held on January 6, 2011

mandated that your son move out of the

residence.

Based on your failure to disclose that

your daughter was either a household member

or frequent visitor along with your failure

to report that your son had been arrested

and investigated by the Department, the

Department has determined that you were in

clear violation of applicable statutes,

codes and the bilateral service agreement as

more specifically identified below.

Pursuant to the section entitled

ÐFoster P arent Responsibilities to the CPA

includeÑ located on page 5, paragraph ÐdÑ of

your bilateral service agreement you are

required to make an immediate disclosure of

any change in your household composition for

which you failed to do so. This section

states as follows: ÐTo notify the CPA

immediately of a potential change in

address, living arrangements, marital

status, family composition (who is in the

home), employment, significant health

changes or any other condition that may

affect the childÓs well - bein g.Ñ This most

recent bilateral service agreement was

executed by you on December 10, 2010. The

Department has also determined that you are

in violation of 65C - 13.027 of the Florida

Administrative Code, section 1(a)&(b)

entitled ÐChanges During the Licens ed YearÑ

which states in relevant part as follows:

Ð(1) General Requirements.

(a) The licensed out - of - home caregiver

shall report law enforcement involvement

with any household member; law enforcement

involvement includes arrests, incidents of

domestic v iolence, driving infractions and

any local law enforcement response to the

home over the course of the licensed year; a

change in marital status; a change in

household composition; a change of the

physical address, changes in financial

situation such as ba nkruptcy, repossessions

and evictions, or a serious health issue

such as a debilitating injury, or

communicable disease regarding a household

member, to the superv ising agency within 48

hours. Failure to do so may be reason to

suspend, deny or revoke a lic ense if the

non - reported situation threatens the safety

of any child in care or results in the non -

conformity with licensing requirements

stated in this rule.

(b) The following occurrences shall be

reported by the licensed out - of - home

caregiver to the sup ervising agency upon

occurrence:

1. Change in marital status;

2. Change of home telephone number;

3. Change of mailing address;

4. Change of employment or significant

change in work schedule prior to the event

when possible;

5. Change in household composition.Ñ

Furthermore, pursuant to Fla. Stat. s.

409.175(2)(f), a foster home license is not

a property right and is, instead a public

trust. The Department of Children and

Families may deny, suspend or revoke a

license for noncompliance with the

req uirements for licensure in accordance

with Fla. Stat. s. 409.175. In light of the

above referenced matters and pursuant to

Fla. Stat. s. 409.175(9), it is the

DepartmentÓs position that your failure to

disclose the members of your household as

well as you r failure to disclose your sonÓs

arrest are serious violations that

jeopardize the health, safety and well - being

of children placed in your care and

therefore the Department firmly believes

that there are adequate grounds for denial

of your foster home lic ense.

Petitioner reque sted a hearing by filing an undated

Petition for Administrative Hearing, which was received by the

Department on June 3, 2011 . The matter was referred to DOAH on

June 24 , 2011 , for the assignment of an administrative law judge

to conduct a formal hearing and to submit a r ec ommended o rder to

the Department .

Pursuant to notice , the final hearing was scheduled for

August 26, 2011. A joint motion for continuance was granted,

and the final hearing in this case was conducted on

September 29 , 2011 . At the hearing, Petitioner offered no

exhibits; Petitioner testified on her own behalf and presented

the testimony of her son, Wayne Clark, and her daughter,

Cleopatris Milledge. The Department presented the testimony of

Dulce Pupo, C itrus Health Network , Inc. (Citrus), Foster Care

Licensing Supervisor ; Emma Mun oz , Citrus Foster Care Licensing

C aseworker ; Ada Gonzalez , Department of Child ren and Families

Licensing Specialist ; Alma Patino, Department of Children and

Families Program Spe cialist; and Lauren Fuentes , Department of

Children and Families Family Safety Program Director .

D epartment ' s Exhibits 1 - 3 and 7 - 9 were offered and admitted into

evidence.

No t ranscript of the pr oceedings wa s filed with DOAH . The

parties timely filed P ro posed F indings of F act and C onclusions

of L aw, which have been considered in the preparation of this

Recommended Order.

FINDINGS OF FACT

1. Since 2006, Petitioner has held a foster care license,

issued by the Department through Citrus, which is a child

placing agency ("CPA") . Since becoming a foster parent, t here

have never been any concerns raised as to the care Petitioner

provided to the foster children.

2 . Every year, Petitioner entered into a Bilateral Service

Agreement with Citrus . The Agreement identifies the

responsibilities of both the f oster parents and Citrus on behalf

of the children served in the foster care program.

3 . Under the heading ÐFoster Parent Responsibilities to

the CPAÑ the Bilateral Service Agreement provides that the

foster parent is required:

d. To notify the CPA immediately of a

potential change in address, living

arrangements, marital status, family

composition (who is in the home),

employment, significant health changes or

any other condition that may affect the

childÓs well - being.

e. To notify the CPA promptly of all

contacts the family or any member of the

home has with police or any law enforcement

agencies.

4 . In the summer of 2010, Citrus sent a letter to a ll

foster parents remind ing them that all family members or

visitors who frequent the home on a daily basis, or sleep

overnight, or have constant contact with the foster children ,

must have background checks completed.

5. In the f all of 2010, f or the annual review for the

upcoming year of 2011, Citrus conducted a home study, which

included an announced vi sit and inspection of the home . The

Citrus consultant who conducted the home study recorded that

Warren Clark (Clark), PetitionerÓs son, was living in the home.

PetitionerÓs daughter was listed as a family member that did not

live in the home and was not a frequent visitor. She conducted

a background screening on Clark, and discovered that Clark had

been arrested twice fo r battery/aggravated assault charges in

May, 2010. If PetitionerÓs daughter had been l isted as a

household member or frequent visitor, the consultant would have

conducted background screening on the daughter as well. During

her announced visit, the consultant saw ClarkÓs room, and only

noticed male belongings. She did not see any kind of female

items, such as jewelry, makeup, or female clothing.

6 . Petitioner never repor ted ClarkÓs arrests to Citrus.

At the hearing, s he testified that she was unaware of her sonÓs

arrests, and was only made aware of the arrests when the Citrus

consultan t told her about them. Her son testified that he had

never told his mother about the arrests because he was

embarrassed. The undersigned does not find this testimony

credible , as it is self - serving in nature and is not plausible ,

given that PetitionerÓs son lived with Petitioner and was

arrested twice in one month. It was ultimately PetitionerÓs

duty to be informed of any involvement between a household

member and law enforcement, and to promptly notify the

Department.

7 . On January 27, 2011, a foster c are licensing staffing

was held. Petitioner agreed to have her son move out of her

home, d ue to the nature of the arrests .

8 . To memorialize the agreement reached during the

meeting, Petit ioner signed a statement indicating that she would

have her son move out of the foster home, and that she

understood that if her daughter w as going to be a frequent

visitor, her daught er needed to be fingerprinted. The statement

also indicated that any violation of this agreement m ight result

in revocation of her fost er home license. This statement was

dated February 22, 2011.

9. During the exit interviews of two of PetitionerÓs

foster care children, the children reported that PetitionerÓs

daughter lived at the foster home.

10 . Citrus and the Department conducted an unannounced

home visit on March 10, 2011. Dulce Pupo, a Citrus Foster Care

Licensing Supervisor, and Ada Gonzalez, a Department Licensing

Specialist, conducted the visit. Present at the home were two

foster children, Petitioner, PetitionerÓs daughter, a nd a tutor

for one of the foster children.

11. One foster child, who was approximately 12 years old,

told Ms. Gonzalez that PetitionerÓs daughter lived in the home,

and pointed out her bedroom. When Ms. Gonzalez approached the

room that had been indicate d, Petitioner asked her not to enter

that room, because it was messy. Ms. Gonzalez entered the

bedroom, and found items that belonged to a woman; she

photographed womenÓs jewelry, skin products, perfumes, womenÓs

clothing, womenÓs shoes, and a curling iro n that she saw in the

room. Petitioner told Ms. Gonzalez that the items were her

daughterÓs items, but that her daughter did not live at the

foster home.

12 . On March 11, 2011, a staffing was held. Petitioner

attended and admitted that her daughter was living at her home.

At the hearing, Petitioner explained that during th is staffing,

she was very upset , and misspoke when she state d that her

daughter lived in her foster home. She, did, however, admit

that her daughter was a frequent visitor, and that s he should

have reported that fact to Citrus.

13 . On May 9, 2011, the renewal of PetitionerÓs foster

care license was denied by the Department.

CONCLUSIONS OF LAW

14 . DOAH has jurisdiction over the subject matter of this

proceeding and of the parties hereto pursuant to c hapter 120,

Florida Statutes.

15 . The Department is the agency charged with the

responsibility of licensing foster homes in the state of

Florida. § 409.175, Fla. Stat.

16 . The Department seeks to deny renewal of PetitionerÓs

foster h ome license. The foster home license is not a

professional license and does not create a property right.

§ 409.175(2)(f). Therefore, the Department , as the party

asserting the affirmative of an issue before an administrative

tribunal, must establish facts that support its position by a

preponderance of the evidence rather than by the clear and

convincing standard imposed in professional license cases.

DepÓt of Banking & Fin. v. Osborne Stern & Co. , 670 So. 2d 932

(Fla. 1996); M.H. and A.H. v. Dep't of Child. & Fams. , 977 So.

2d 755, 762 (Fla. 2d DCA 2008); Fla. DepÓt of Transp. v. J.W.C.

Co. , 396 So. 2d 778 (Fla. 1st DCA 1981).

17 . Section 409.175(9) grants the Department the authority

to deny, suspend, or revoke a foster care license. It provides ,

in pertinent part:

(a) The Department may deny, suspend,

or revoke a license.

(b) Any of the following actions by a

home or agency or its personnel is a ground

for denial, suspension, or revocation of a

license:

(1) An intentional or negligent act

mat erially affecting the health or safety of

children in the home or agency.

(2) A violation of the provisions of

this section or of licensing rules

promulgated pursuant to this section.

18 . The Department has adopted rules establishing the

standards for foster home license holders. Florida

Administrative Code Rule 65C - 13.023, titled ÐBackground

Screening Requirement s, Ñ provides in relevant part:

(1) The department shall conduct

background screenings for all persons

considered by the department for initi al

licensure or re - licensure as an out - of - home

caregiver and all adult household members

pursuant to Section 409.175, F.S. These

screenings shall be completed before an

applicant shall be licensed as an out - of -

home caregiver and before any children are

pl aced in the home . . . Failure to comply

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. The supervising

agency or the depar tment has the discretion

to request background screening for other

individuals if there is reasonable belief

that:

(a) The person may be a household

member; or

(b) His or her presence in the foster

home may adversely affect the health, safety

and welfare of the children in the home; or

(c) The person has or may have

unsupervised contact with the children.

* * *

(8) Persons who are currently licensed

as out - of - home caregivers and any adult

household members shall be re - screened at

least annually as a part of the application

for re - licensing.

19 . Florida Administrative Code Rule 65C - 13.027, titled

ÐChanges During the Licensed YearÑ provides as follows:

(1) General Requirements.

(a) The licensed out - of - home caregiver

shall report law enforce ment involvement

with any household member; law enforcement

involvement includes arrests, incidents of

domestic violence, driving infractions and

any local law enforcement response to the

home over the course of the licensed year; a

change in marital statu s; a change in

household composition; a change of the

physical address, changes in financial

situation such as bankruptcy, repossessions

and evictions, or a serious health issue

such as a debilitating injury, or

communicable disease regarding a household

m ember, to the supervising agency within 48

hours. Failure to do so may be reason to

suspend, deny or revoke a license if the

non - reported situation threatens the safety

of any child in care or results in the non -

conformity with licensing requirements

stat ed in this rule.

(b) The following occurrences shall be

reported by the licensed out - of - home

caregiver to the supervising agency upon

occurrence:

1. Change in marital status;

2. Change of home telephone number;

3. Change of mailing address;

4. Change of employment or significant

change in work schedule prior to the event

when possible;

5. C hange in household composition.

20 . Florida Administrative Code Rule 65C - 13.029, titled

ÐLicensed Out - of - Home Team Member Roles , Ñ provides:

( 5) Responsibilities of the Licensed

Out - of - Home Caregivers to the Department and

Supervising Agency.

* * *

(b) The licensed out - of - home caregivers are

required to participate in re - licensing

studies and in ongoing monitoring of their

home, and mus t provide sufficient

information for the department to verify

compliance with all rules and regulations.

21 . These rules, along with the Bilateral Agreemen t ,

required that all frequent visitors and household members

undergo background screening, and that Petitioner notify the

Department of changes in the household composition, and of any

involvement a household member has had with law enforcement.

22 . The documentary evidence establishes that Petitioner

knew of the requirement to report residents or freq uent visitors

to Ci trus . She admitted at the hearing that her daughter was a

freq uent visitor at the foster home, but she failed to report

this fact to Citrus. As to her son, who was properly listed as

a household member, Petitioner failed to notify Citr us of her

sonÓs arrest and involvement with law enforcement . Pursuant to

the rules, it was PetitionerÓs duty to monitor her home and

verify compliance with the rules. She failed to do so;

therefore, her request for renewal of her foster home license

shou ld be denied.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is hereby RECOMMENDED that the Department of Children

and Families enter a final order finding that Petitioner

violated s ection 409.175(9), Florida Statutes, and deny

PetitionerÓs request to renew her foster home license.

DONE AND ENTERED this 2 7 th day of October , 2011 , in

Tallahassee, Leon County, Florida.

S

___________________________________

JESSICA E. VARN

Administrative Law Judg e

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

t his 2 7 th day of Octobe r , 2011.

ENDNOTE

1 / Unless otherwise noted, all references in this Recommended

Order to Florida Statut es are to Florida Statutes (2011 ).

COPIES FURNISHED :

Jean - Claude Dugue, Esquire

7872 Northwest 201 Terrace

Hialeah, Florida 33015

Leslie Hinds St - Surin, Esquire

Department of Children and Families

401 Northwest 2nd Avenue, Suite N - 1014

Miami, Florida 33128

David Wilkins, Secretary

Department of Children and Families

Building 1, Room 202

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

Drew Parker, General Counsel

Department of Children and Families

Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

N OTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date o f this recommended order. Any exceptions

to this recommended order should be filed with the agency that

will issue the final order in this case.