11-006420 Department Of Children And Families vs. Charles And Glenda Williams Status: Closed Recommended Order on Thursday, July 19, 2012.

Summary: Denial of application to re-license foster home is warranted based on failure to cooperate with supervising agency.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND )

FAMILIES , )

)

Petitioner , )

)

vs. ) Case No. 11 - 6420

)

CHARLES AND GLENDA WILLIAMS , )

)

Respondents . )

)

RECOMMENDED ORDE R

On February 17 and May 22, 2012 , an administrative heari ng

in this case was held by video tele conference in Fort Myers and

Tallahassee, Florida, before William F. Quattlebaum,

Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

Fo r Petitioner: Eugenie G. Rehak, Esquire

Department of Children and Families

Post Office Box 60085

Fort Myers, Florida 33906

For Respondent s : John S. Sommer, Esquire

Law Office of JSS

Post Office Box 62279

Fort Myers, Florida 33906

STATEMENT OF THE ISSUE

The issue in this case is whether the Respondents '

application for re - licensure of the ir therapeutic foster home

should be ap proved.

PRELIMINARY STATEMENT

Through an Administrative Complain t dated November 4, 201 1,

the Department of Children and Families ( Department ) notified

Charles and Glenda Williams (Respondent s ) that their application

for re - licensure of their therapeutic foster home had been

denied . The Respondent s challenged the denial and requested an

administrative hearing. On December 15, 2011 , the Department

forwarded the request to the Division of Administrative Hearings,

which scheduled and conducted t he proceeding.

The hearing was originally scheduled to occur on

February 17 , 2012 , and the Respondents represented themselves

during the portion of the hearing that took place on that date.

The hearing was not conclude d on February 17, 2012 , and was

adjou rned to be completed later . The remainder of the hearing

was scheduled and then continued at the request o f the

Respondents. On April 27, 2012, a Notice of Appearance was filed

by counsel for the Resp ondents , who represented the Respondents

through the c ompletion of the hearing on May 22, 2012 , and

thereafter.

During the hearing, the Department presented the testimony

of five witness es and had Exhibits 1 through 19 admitted into

evidence. The Respondent s presented the testimony of nine

witnesses and had Exhibits 1 and 3 through 6 admitted into

evidence.

No t ranscript of the hearing was filed . Pursuant to the

deadline established at the conclusion of the hearing, both

parties filed p roposed r ecommended o rder s that ha ve been

considered in the preparation o f this Recommended Order.

FINDING S OF FACT

1. The Respondents have operated a licensed foster home

since 1994 and have operated a therapeutic foster home since

2011 .

2. The Respondents ' foster home was originally licensed

under the supervision of Lee Cou nty Mental Health Center, which

was the local agency responsible for placing children in the

home.

3. In 2009, responsibility for supervision of the home was

transferred to "Florida MENTOR" (MENTOR) , which also assumed the

responsibility for plac ement of children in the home.

4. The children placed in the Respondents ' foster home have

been between eight and 11 years of age. Children placed in

therapeutic foster home s have significant special needs and can

be emotionally unstable. A safe and supp ortive t herapeutic

environment is requi red for their protection.

5. The Respondents ' license was valid through September 30,

2011. On August 3, 2011, the Respondents appli ed for renewal of

the license.

6. Florida Administrative Code Rule 65C - 13.027 requires

tha t changes in a licensee ' s household composition or employment

be reported within 48 hours of the event.

7. When the application was filed, the Respondents

disclosed that their adult daughter and her three children had

been residing with them for approxima tely three weeks. Prior to

the application, the Respondents had not advised MENTOR that

there had been any change in household composition.

8. Mr. Williams became unemployed in December 2010, but the

Respondents failed to report the change in the emplo yment pr ior

to filing the application.

9. MENTOR was concerned about the financial stability of

the household due to additional residents in the home and the

reduction in income related to the loss of Mr. Williams '

employment.

10. An applicant for re - lic ensure of a foster home is

required to submit financial information sufficient to establish

that the applicant has the resources required to provide a stable

hous ehold and meet basic expenses.

11. The financial information initially submitted by the

Respo ndents with the application for re - licensure was incomplete

and did not appear to be an accurate reflection of household

expenses. Attempts by MENTOR to obtain additional information

were resisted by Ms. Williams.

12. MENTOR eventually determined that , a lthough the

household had sufficient income to support thei r own expenses,

placement of a foster child into the Respondents ' home would

cause a fina ncial hardship for the family.

13. Foster parents are permitted, with approval of the

supervising agency, t o add payments received to board a foster

child to their income calculation, but the Respondents have not

obtained such approval .

14. By the time of the hearing, the Williams ' adult

daughter and her children no longer reside d in the home, but

Mr. Williams remained unemployed and was selling scrap metal to

obtain income. At the hearing, he testified that his scrap metal

income had been declining as more unemployed people bega n to

collect and resell scrap.

15. In September 2011, MENTOR completed the re - lic ensing

study, a 24 - page document that outlines the history of the foster

home, including abuse reports and licensing deficiencies, and the

efforts of the li censee to correct such issues.

16. Rule 65C - 13.028(3)(i)2 . requires that the re - licensing

study inc lude documentation related to the level of cooperation

by the licensee with the case plans developed for the child

placed in the foster home .

17. The re - licensing study documented MENTOR ' s concern s

about the physical safety of children residing in the hom e and

the Respondent s ' willingness and ability to provide appropriate

support to therapeutic foster children placed in the home .

18. During a significant period in 2011 , the Respondents

maintained a collection of junk metal and other debris in the

yard of the foster home. The junk was apparently being collected

by Mr. Will iams for sale to scrap dealers.

19. Jodi Koch, a MENTOR therapist who was assigned to work

with the children in the Respondents ' home, testified at the

hearing about her observations of conditions in the home and

about her interactions with the Respondents .

20. In November 2010, Ms. Koch observed a child begin to

play with a rusty machete that the child discovered in the

Respondents ' yard , and she so advised Ms. Williams, who expressed

her displeasure that Ms. Koch had exceeded her authority as a

therapist. Ms. Koch reported her observation to MENTOR

personnel.

21. MENTOR officials, including the p rogram d irector and

r e - licensing c oordinator, discussed the unsafe conditions of the

prop erty with the Respondents. Suggestions that the Respondents

relocate the debris or otherwise prevent access by children to

the debris were initially ignored by the Respondents .

22. On May 2, 2011, MENTOR issued a W r itten Notice of

Violation (Notice) to t he Respondents, documenting the hazardous

conditions of the property. Th e Notice was hand - delivered on

M ay 5, 2011, at which time the Respondents refused to read or

sign the paper .

23. On May 6, 2011, the Lee County Code Enforcement

Authority issued a nu isance citation against t he Respondents for

the accumulation of junk and debris on their property. T he

violation was cured on May 13, 2011, but , on June 1, 2011, the

Lee County Code Enforcement Authority issued a second nuisance

citation for the same viol ation . Th at violation was not resolved

until November 2011 , after the Lee County Code Enforcement

Authority had prosecuted the violation through a hearing, and

more than a year after Ms. Koch observed the child with the

machete .

24. At the hearing, Ms. W illiams asserted that Ms. Koch was

a therapist and that she had exceeded her authority by reporting

the observations of the property to the MENTOR officials,

essentially the same position Ms. Williams asserted in 2011 when

Ms. Koch reported the situation t o MENTOR .

25. The MENTOR re - licensing study also documented the

failure of the Respondents to cooperate in therapeutic plans

developed for the children placed in the home an d to supervise

the children properly .

26. Ms. Williams often refused to cooperate with the

therapeutic plans and goals Ms. Koch developed for the children

in the Respondents ' foster home . Ms. Williams apparently

concluded that she was better able to address the needs of a

therapeutic foster child than was Ms. Koch , but the evidence

fa iled to support such a conclusion.

27. Ms. Williams refused to implement standard behavioral

therapies suggested by Ms. Koch and opined that they were a

" waste of her time ."

28. Ms. Williams refused to allow one foster child to have

toys purchased for th e child by Ms. Koch. Ms. Williams claimed

that the child would have destroyed the toys, but Ms. Koch

testified they had been purchased to allow the child to have her

own possessions for the first time in the child ' s life and to

develop a sense of responsi bi lity.

29. The Respondents routinely put children to bed at an

early hour as a means of discipline and refused to comply with

Ms. Koch ' s direction to develop other disciplinary practices.

30. In one discussion with Ms. Koch at the home,

Ms. Williams dis cussed the circumstances of one foster child in

the presence of another foster child, violating the

co nfidentiality of the children.

31. The Respondents failed to contact MENTOR staff to

address behavioral issues exhibited by children place d in the

home a nd instead called upon law enforcement authorities to

respond when a child refused to comply with their directions.

32. The Respondents failed to supervise one child placed in

their home sufficiently to prevent the child from accessing pay -

per - view porn ography on cable television, resulting in a charge

in excess of $700 on one bill.

33. It was clear, based on Ms. Williams ' testimony and

demeanor at the hearing, that Ms. Williams disliked Ms. Koch.

Much of Ms. Williams ' presentation of evidence during t he

February 17 portion of the hearing was directed towards

discrediting MENTOR and Ms. Koch.

34. After completing the re - licensing study, MENTOR

forwarded the application and study to the Department , which

received the materials on October 5, 2011.

35. N otwithstanding the continuing problems between MENTOR

and the Respondents, MENTOR recommended in the study that the

Respondents ' home be conditionally re - licensed. The conditions ,

essentially intended to increase the possibility that the

Department would approve the application for re - licensure , were

as follows:

1. Reduction in the licensed capacity from

two therapeutic individuals to one

therapeutic individual.

2. Unannounced visits to monitor the home in

terms of food content, refrigerator

temperature , client supervision and safety

concerns.

3. Continuing monitoring of the foster

parents ability to work in conjunction with

service providers regarding the best

interests of the child.

4. Monitoring to ensure that the living

situation of the additio nal four residents

was resolved within six months.

36. Ms. Williams was dissatisfied with the results of the

study, disagreed with the proposed conditions, and refused to

accept them.

37. While MENTOR (as the supervising agency) was

responsible for th e evaluation of the application, the Department

has the responsibility for the making the final determination

regarding licensure or re - licensure of a foster home. T he

Department consider ed the MENTOR recommendation whe n making the

licensing decision.

38. T he primary focus of the Department ' s decision was

whether the Respondents could provide an appropriate and safe

environment for a therapeutic foster placement. The Department

has no financial interest in the decision and ha d no direct

contact with the Respondents .

39. As the r egional l icensing m anager for the Department,

Kristine Emden was tasked with the responsibility of reviewing

the application and materials . Based on her review, Ms. Emden

determined that the application should be denied.

40. Ms. Emden based her decision on the Respondents ' lack

of cooperation with therapeutic programs developed for the

children in their care, their failure to supervise children

adequately or to maintain confidentiality regarding the children,

and their lack of co operation with the MENTOR personnel who

attempted to resolve the identified deficiencies.

41. Additionally , Ms. Emden considered the Respondents '

response to issues related to the hazardous conditions of the

premises, the lack of financial resources to su pport a

therapeutic foster placement in the home , and the rejection of

conditions proposed by MENTOR in the study.

42. Ms. Emden was unable to identify any remedial measures

that would alter the denial of the application for re - licensure .

43. The Respond ents failed to offer credi ble evidence to

establish that the Department ' s denial of the application was

incorrect or that the application should otherwise be approved.

CONCLUSIONS OF LAW

44. The Division of Administrative Hearings has

jurisdiction over th e parties to and subject matter of this

proceeding. §§ 120.569 and 120.57, Fla. Stat. (2011). 1/

45. The Department is the state agency charged with the

responsibility for licensing therapeutic foster homes in the

S tate of Florida. Rule 65C - 13.035(1) sta tes that the Department

is the licensing authority for all family foster homes and has

final authority for approval, denial , or suspension of any

license. The Department may deny, suspend, or revoke a foster

home license for a violation of s ection 409.175 , Fla. Stat., or a

violation of the foster home licensing rules adopted by the

Department. § 409.175(9), Fla. Stat.

46. T he Department i s proposing to deny the renewal of

Respondents ' foster home license. A foster home license is not

a professional lice nse and does not create a property right.

§ 409.175(2)(f) , Fla. Stat . Accordingly , the Department must

establish facts that support its position by a preponderance of

the evidence rather than by the clear and convincing standard

imposed in professional li cense cases. Dep ' t of Banking & Fin.

v. Osborne Stern & Co. , 670 So. 2d 932 (Fla. 1996); M.H. & A.H.

v. Dep ' t of Child. & Fams. , 977 So. 2d 755, 762 (Fla. 2d DCA

2008); Fla. Dep ' t of Transp. v. J.W.C. Co. , 396 So. 2d 778 (Fla.

1st DCA 1981). Once the Dep artment has met its burden, the

Respondents, as the applicants for re - licensure, bear the

ultimate burden of establishing entitlement to the license

sought. In this case, the Department met its burden. The

Respondents did not.

47. The evidence establish e d that the Respondents violated

r ule 65C - 13.027(1)(a) and (b), which requires that the

Respondents report any changes in the composition of the

household or in the employment status of the licensee to the

supervising agency within 48 hours of the change .

48. The evidence establishes that , by maintaining a

substantial collection of metal junk and debris on the premises,

the Respondents violated r ule 65C - 13.030 (5) (c), which states as

fol lows:

The exterior of the home and premises shall

be free from objects, materials, and

conditions which constitute a danger to

children. All garbage and trash shall be

covered and removed regularly. There shall

not be large, potentially dangerous items

stored in the safe outdoor play area such as

old refrigerators, stacks o f lumber and

unregistered vehicles or boats.

49. Rule 65C - 13.029(5) provides , in relevant part , as

follows:

(5) Responsibilities of the Licensed Out - of -

Home Caregivers to the Department and

Supervising Agency.

* * *

(b) The licensed out - of - ho me caregivers are

required to participate in re - licensing

studies and in ongoing monitoring of their

home, and must provide sufficient information

for the department to verify compliance with

all rules and regulations.

* * *

(t) Licensed out - of - home caregivers shall

keep confidential all information about the

child and the child ' s family. Discussing

this information shall be limited to a

departmental or agency staff member, Guardian

Ad Litem, or other authorized professional

working with the chi ld.

* * *

(v) Licensed out - of - home caregivers are

responsible for complying with all applicable

laws, rules, regulations or ordinances of

each governmental unit in which the home is

located, including but not limited to those

relating to Medicai d eligibility, fire

safety, sanitation, health, safety, zoning,

civil rights, employment and board rate

eligibility.

50. The evidence establishes that the Respondents violated

r ule 65C - 13.029(5)(b) by their lack of cooperation with MENTOR ' s

efforts to mo nitor the home and by their failure to provide

adequate information sufficient to permit an accurate

determination of household financial stability.

51. The evidence establishes that the Respondents violated

r ule 65C - 13.029(5) (c ) by discussing personal in formation about a

foster child residing in the home in the presence of ano ther

foster child in the home.

52. The evidence establishes that the Respondents violated

r ule 65C - 13.029(5) (v ) by maintaining a nuisance on the premises

in vi olation of county regu lations.

53. The evidence establishes that the Respondents violated

r ule 65C - 13.030(4)(e), which states as follows:

A licensed out - of - home caregiver shall have a

stable income sufficient to make timely

payment for current shelter, food, utility

costs, and other debts without relying on

board payments unless the licensed out - of -

home caregiver enters into an agreement with

a lead agency to provide specialized care.

Applicants shall have a source of income

independent of child support or alimony.

54. Rule 6 5C - 13.028 (3)(i)2 . requires that the re - licensing

study include documentation related to the level of cooperation

by the licensee with the case plans developed for the child

placed in the foster home . In this case, the study contained the

information requi red by the rule and reflected the failure of the

Respondents to cooperate with the rapeutic plans developed by

Ms. Koch for children placed in the Respondents ' home .

55. The Respondents have failed to establish that the

Department ' s decision to deny the ap plication was incorrect or

that, despite the facts established at the hearing, their

a pplication should be approved.

56. The Respondents have suggested that the Department

failed to compl y with requirements set forth at r ule 65C -

13.035 (3) . According to t he cited rule , the supervising agency

and the licensee must cooperatively prepare a corrective action

plan, and the licensee must be permitted an opportunity to

implement the plan and correct violations "which do not pose an

immediate threat to the health, safety or welfare of the

children," prior to initiation of disciplinary action against a

licensee for violations . However, under the facts of this case,

s uch a process is not required.

57. Rule 65C - 13.035(3)(e) states that such corrective

action plans a re not required when a licensee "has developed a

pattern of deficiencies that has not been rectified by prior

attempts at corrective action." The evidence in this case

clearly establishes that the Respondents, particularly

Ms. Williams, resisted the effor ts of Ms. Koch and MENTOR

personnel to remedy deficiencies, to bring the Respondents into

compliance with the requirements identified herein, and to

prepare the Respondents ' application for re - licensure . The

Respondents presented no credible evidence that Ms. Williams was

amenable to preparing a corrective action plan with MENTOR or to

meeting the requirem ents set forth in such a plan.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Department of Ch ildren and

Families enter a f inal o rder denying the license application

filed by the Respondents at issue in this proceeding.

DONE AND ENTERED this 1 9 th day of July , 2012 , in

Tallahassee, Leon County, Florida.

S

WILLIAM F . QUATTLEBAUM

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 Ad ministrative Hearings

this 1 9 th day of July , 2012 .

ENDNOTE

1/ References to Florida Statutes are to the 2011 version, unless

otherwise indicated.

COPIES FURNISHED:

Eugenie G. Rehak, Esquire

Department of Children and

Families

Post Office Box 60085

Fort Myers, Florida 33906

John S. Sommer, Esquire

Law Office of JSS

Post Office Box 62279

Fort Myers, Florida 33906

Gregory Venz, Agency Clerk

Department of Children and

Families

Building 2, Room 204B

1317 Winewood Boulevard

Tallahassee, Florida 32 399 - 0700

Marion Drew Parker, General Counsel

Department of Children and

Families

Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

David Wilkins, Secretary

Department of Children and

Families

Building 1, Room 202

1317 Wine wood Boulevard

Tallahassee, Florida 32399 - 0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be fil ed with the agency that

will issue the Final Order in this case.