15-004169 vs. Status: Closed Recommended Order on Wednesday, February 17, 2016.

Summary: Petitioner proved that Respondent engaged in an act that materially affected the health or safety of a foster child in violation of section 409.175, but mitigating circumstances justify not revoking foster home license.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND

FAMILIES,

Petitioner ,

vs. Case No. 15 - 4169

JOSEPH ITURRIAGA AND CHERIE

ITURRIAGA,

Respondents.

_______________________________/

RECOMMENDED ORDER

A hearing was conducted in this case pursuant to

sections 120.569 and 120.57(1), Florida Statutes (2015), before

Cathy M. Sellers, an Administrative Law Judge ( " ALJ " ) of the

Division of Administrative Hearings ("DO AH"), on November 10,

2015, by video tele confer ence at sites in Miami and Tallahassee,

Florida.

APPEARANCES

For Petitioner: Carlos Alberto Garcia, Esquire

Department of Children and Families

401 Northwest Second Avenue, Suite N - 1014

Miami, Florida 33128

For Respondent s : Joseph Iturriaga, pro se

19711 Northeast Miami Court

North Miami Beach, Florida 33179

STATEMENT OF THE ISSUE

The issue in this case is whether Petitioner should revoke

Respondents' foster home license b ased on violations of

section 409.175(9), Florida Statutes (2014), and provisions of

Florida Administrative Code Chapter 65C - 13 alleged in the Notice

of Intent to Revoke Foster Home License dated April 16, 2015.

PRELIMINARY STATEMENT

On April 16, 2015, Petitioner , Department of Children and

Families, issued a Notice of Intent to Revoke Foster Home

License ( " Notice of Intent " ) , proposing to revoke the foster

home license issued to Respondents, Joseph and Cherie Iturriaga,

based on Petitioner's determinati on that Respondents had

vio lated specified statutes , rules, and foster home agreements.

Respondents timely requested an administrative hearing on

Petitioner's proposed action, and the matter was referred to

DOAH to conduct a hearing pursuant to sections 120.569 and

120.57(1).

The final hearing originally was scheduled for

September 28 , 2015. However, on September 24 , 2015, Petitioner

requested a continuance due to a medical emergency involving one

of its witnesses . The hearing was continued and the parties

were directed to provide suggested dates for the hearing.

P ursuant to the parties' response, the final hearing was

held on November 10 , 2015. Petitioner presented the testimony

of Respondent Cherie Iturriaga , Dulce Pulpo, Marietta Enriquez,

and Sonia De Escobar, and Petitioner's Exhibits 1 through 4 and

6 through 8 were admitted into evidence without objection.

Respon dent Joseph Iturriaga testified on behalf of Respondents

and also presented the test imony of Eric Sami. Respondent s '

Exhibits 3 and 11 were admitted into evidence without objection.

A CD containing three calls made to 911 on the afternoon of

September 4, 2014, regarding the incident at issue in this

proceeding, was admitted into evidence as Joint Exhibit A . 1/

The two - volume Transcript was filed on December 2 , 2015 .

T he Notice of Filing Transcript issued on December 3, 2015,

notified the parties that they had until December 14 , 2015, to

submit their proposed recommended orders . Petitioner did not

submit a proposed recommended order. Respondents ' P roposed

Recommended Order was submitted on November 23, 2015, and was

duly considered in preparing this Recommended Order.

FINDINGS OF FACT

1. Petitioner is the state agency respons ible for

licensing foster care parents and foster homes pursuant to

section 409.175. 2/

2. Respondents are foster care parents in a foster care

home licensed as Provider FSFN ID #100032652 , the therapeutic

foster home at issue in this proceeding . 3/

3. A.A. , a n eight - year - old child , was placed into

Respondent's foster home in April 2014. 4/

4. On the afternoon of September 4, 2014, Respondent

Cherie Iturriaga took A.A. and her two grandchildren to a

shopping center. When they were ready to leave, A.A. refused to

get into the family van .

5. M r s. Iturriaga testified that she tried, for

approximately ten to 15 minutes, to persuade A.A. to get into

the vehicle, but he refused. She became very frustrated, yelled

at A.A. to get into the van, an d began to back the van out of

the parking space while A.A. was standing next to the van's open

door. 5/

6. A passerby called 911 to report that M r s. Iturriaga ÏÏ

who the passerby characterized as A.A.'s " grandmother " ÏÏ was

attempting to make A.A. get into the vehicle against his will.

The passerby told A.A. "you don't have to get in the van if you

don't want to."

7. M r s. Iturriaga also called 911 to report that A.A.

would not get into her vehicle. She told the 91 1 dispatcher

that she was not staying for him , and that she was " going home."

The dispatcher told her that because the child was supposed to

be in her care, she had to stay with him , and that officers

already were on the way to that location.

8. Nonet heless, M r s. Iturriaga drove away and left A.A. in

the parking lot with the passerby, who M r s. Iturriaga

characterized , in testimony at the hearing , as a " random

person."

9. The evidence does not clear ly establish whether

M r s. Iturriaga left A.A. in the parking lot for " five to ten

minutes, " as she claimed, or for as much as 20 to 30 minutes, as

indicated by other evidence in the record. Regardless, it is

undisputed that she drove away from the parking lot and left

A.A. in t he company of a stranger.

1 0 . At some point, M rs . Iturriaga returned to the parking

lot to pick up A.A. , but he was not there. She called 911 , and

t he dispatcher confirmed that A.A. had been taken to the

Pembroke Pines Police Department.

1 1 . M r s. Iturriaga went to the police department to pick

up A.A. There, she was arrested and charged with child neglect

without great bodily harm, a third - degree felony ; t his charge

ultimately was dropped.

12. A.A. was not physically harmed as a result of bei ng

left in the parking lot.

1 3 . The evidence establishes that approximately 45 days

before the September 4 , 2014, incident, M r s. Iturriaga request ed

that Citrus remove A.A. from Respondents' foster home within

30 days ; however, he was not timely removed .

1 4 . When th e incident giving rise to this proceeding

occurred, A.A. was immediately removed from Respondents' foster

home.

1 5 . Another child, J.O., who was approximately 14 years

old at the time of the incident, was placed in Respondents'

foster home approximately two and one - half years before the

incident . Since then , J.O. has formed very close bonds with

both Respondents , particularly Mr. Iturriaga. At the time of

the hearing, J.O. ha d not been removed from Respondents' home

and continu e d to reside with them. J.O. does not wish to be

removed from Respondents' home .

1 6 . Eric Sami serves as the guardian ad litem for J.O. ,

and has done so for the past three and one - half years. Mr. Sami

testified, persuasively, that when he was assigned to J.O.'s

case, J.O. was a very withdrawn, depressed, socially unstable

child who had been moved through several different foster homes,

and who was academically struggling. Since being placed in

Respondents' home, J.O. has flourished. He has made friends,

his academic performance has dramatically improved, and he is no

longer depressed and socially unstable. According to Mr. Sami,

Respondents have treated J.O. as if he were their own child,

inc luding taking him on family vacations and involving him in

all holiday celebrations. Mr. Iturriaga participate s in parent -

teacher conferences for J.O. and has taken an interest in J.O.'s

school work and in helping him improve his academic performance.

1 7 . Sami also testified , credibly, that in the short

amount of time in which A.A. lived in Respondents' home, he was

an extremely disruptive force, bullying J.O. and Respondents'

grandchildren and killing ducks in front of Respondents'

granddaughter ÏÏ an eve nt that was extremely traumatic for her to

witness.

18. Sami observed , and the undersigned agrees , that it is

fundamentally unfair for J.O. to suffer the consequences of

Respondents' license revocation due to an event that was

precipitated by A.A.'s extreme, ongoing misbehavior before he

was removed from the home.

1 9 . Because Sami and J.O.'s therapist, Fred Leon, believed

so strongly that removing J.O. from Respondents' home would have

very substantial negative consequences for J.O., they advocated

to Petitioner and Citrus to allow Respondents to keep their

foster ho me license and to keep J.O. in their home. However,

that did not dissuade Citrus from recommending that Petitioner

revoke Respondents' license.

20 . I n October 2014, J.O.'s placement was changed from

foster care in Respondents' home to non - relative placement in

Respondents ' home. Because revocation of Respondents' license

would require J.O. to be removed from Respondents' foster home ,

t h is placement change was necessary in order for J.O. to remain

in the home.

21 . However, t his placement change is not without negative

consequences . J.O. remains in Respondents' home but they do not

receive any monetary allowance for his care , 6/ so they are placed

in the position of support ing him without receiving any

financial assistance through the foster care system.

2 2 . Thus, t he c onsequence of revoking Respondents' license

is that if J.O. remain ed in the foster care system , he would

have to be moved to a licensed foster home . If he were to stay

in Respondents' home in a non - relative placement, Respondents

would not receive any monetary assistance through the foster

care system to help with his support.

2 3 . Respondents' fervently wish to keep J.O. in the ir

home , even without financial assistance through the foster care

system, due to the strong emotional bond they have with him and

because of the r emarkable social and academic strides he has

made while in their care. However, Mr. Iturriaga testified,

persuasively, that this situation impos es a financial hardship

on them, which, in turn, penalizes J.O.

2 4 . That Respondents wish to continue to provide a

nurturing home for J.O. , despite the financial hardship , is

strong evidence that they have J.O.'s best interests at heart

and that they wo uld continue to provide the same stable,

nurturing environment for him that they have provided for more

than two and one - half years.

2 5 . As noted above, the criminal charges against

Mrs. Iturriaga were dropped. Nonetheless, e mployees of Citrus

testified that because there was an open child abuse

investigation with verified findings, they could not recommend

that Respondents' foster home continue to be licensed.

2 6 . Petitioner pr esented the testimony of Sonia

D e Escobar, l icensing m anager of Petitioner's Circuit II foster

care program . Ms. D e Escobar testified that Petitioner is

seeking to revoke Respondents' license in part due to concern

for the safety of children who may be placed in Respondents'

foster home in the future . De Escobar noted that it is not

uncommon for children in the dependency system to " misbehave, " 7/

and Petitioner is concerned about Respond ents' ability to deal

with child mis behavior in the future.

2 7 . However, the evidence establishes that Responden ts

successfully cared for eight foster children over a six - year

period and never had any problems dealing with child misbehavior

until the incident involving A.A. A s discussed above, the

evidence establishes that A.A. was extremely aggressive and

engaged in behavior that seriously disrupted Respondents' home

environment . B ecause of A.A.'s extreme behavior, Respondents

previously had given Citrus the required 30 - day notice .

However, Citrus did not timely remove A.A. from Respondents'

home and the incident giving rise to this proceeding thereafter

ensued.

2 8 . As noted above, there is no dispute that

Mrs. Iturriaga intentionally left A.A. with a complete

stranger for some period of time. In doing so , she endangered

his health and safety , in violation of section 409.175(9)(a)1.

2 9 . However, the undersigned finds that mitigating

circumstances in this case militate against revoking

Respondents' foster home license. S pecifically, Res pondents

enjoyed a s potless record as foster parents befor e the inciden t

involving A.A. Further ÏÏ and very importantly ÏÏ they have

fostered a very successful, nurturing, long - term parental

relationship with J.O. that will be jeopardized if t heir foster

home license is revoked. Finally, it is undisputed that A.A. 's

behavior wa s extremely aggressive , disrespectful, and disruptive

throughout the time he was placed in Respondents' home . On

September 4, 2014, his behavior finally caused Mrs. Iturriaga to

" snap." 8 / Although her actions unquestionably were inappropriate

and affected A.A.'s health and safety, the evidence indisputably

shows that this was a one - time incident that occurred while

Mrs. Iturriaga was under significant duress , and that, under any

circumstance s , A.A. was not injured.

30 . The undersigned further notes Citrus' role in this

incident. As the child placing agency, Citrus is charged with

placing foster children in foster homes , and with removing them

when circumstances warrant. As discussed above, in July 2014,

Respondents gave Citrus the required 30 - day notice for

transitioning A.A. out of their home. However, Citrus failed to

timely meet its obligation to remove A.A. from Respondents' home

and this incident subsequently occurred . Had Citrus met its

obligation to timely remove A.A. from Respondents ' home , this

incident would not have occurred. Thus, Citrus is not without

blame in this matter .

31 . The undersigned further notes that i f Respondents were

allowed to keep their license, Citrus, as the child placing

agency, is obligated under the Bila teral Agreement to consult

with Respondent before placing children in their home. T his

consultation process presumably would help ensure that children

having extreme behavior al problems are not placed in

Respondents' home in the future .

3 2 . For these reasons, the undersigned finds that allowing

Respondents to keep their foster home license would enable them

to continue their close, nurturing relationship with J.O., and ,

further, likely would not result in any danger or other adverse

effect on the health and safety of foster children who may be

placed in their home in the future . 9/

CONCLUSIONS OF LAW

3 3 . DOAH has jurisdiction over the parties to, and subject

matter of, this proceeding pursuant to sections 120.569 and

120.57(1), Florida St atutes.

3 4 . This is a penal disciplinary proceeding in which

Petition er seeks to sanction Respondent s ' foster home license.

Petitioner bears the ultimate burden of proof in this proceeding

by a preponderance of the evidence. § 409.175(2)(f), Fla. Stat.

(2014)( " [r]eceipt of this license shall not create a property

right in the recipient"). See Haines v. Dep't of Child. &

Fams . , 983 So. 2d 602, 608 (Fla. 5th DCA 2008) .

3 5 . Here, Petitioner seeks to revoke Respondents'

foster home license on the fol lowing bases, cited in the

Notice of Intent dated April 16, 2015 , which constitutes

the administrative charging document in this proceeding:

v iolation of r ule 65C - 13.029(1)(b); v iolation of r ule 65C -

13.023(2); viol ation of r ule 65C - 13.030(1) ; and violation of

section 409.175(9). Each of these grounds is addressed below.

Rule 65C - 13.029(1)(b)

3 6 . Rule 65C - 13.029(1)(b) provides in pertinent part:

"(1) Responsibilities of the Licensed Out - of - Home Caregiver to

the Child. . . . (b) All children in the home shall be

protected from abandonment, exploitation, neglect, and abuse.

Suspected child abuse or neglect including incidents of child -

on - child sexual abuse shall be reported immediately to the

Florida Abuse Hotline. "

3 7 . Here, the undispute d evidence establishes that

Mrs. Iturriaga engaged in conduct that could be considered to

constitute neglect of A.A. when she left him with a stranger in

the shopping center parking lot. To that end, she was charged

with child neglect without bodily harm . As discussed above,

those charges ultimately were dropped.

3 8 . Accordingly, Petitioner proved, by a preponderance of

the evidence, that Respondent violated rule 65C - 13.029(1)(b).

Rule 65C - 13.023(2)

3 9 . The Notice of Intent states in pertinent part:

" [a]dditionally, all reports in which the person seeking

licensure or re - licensure was named as the " caregiver

responsible " must be considered for licensing purposes.

65C - 13.023(2), Florida Administrative Code."

40 . Rule 65C - 13.023 is titled " Background Screening

Requirements.

41 . Rule 65C - 13.023(1) states:

( 1) The department shall conduct background

screenings for all persons considered by the

department for initial licensure or re -

licensure as an out - of - home caregiver and

all adult household members pursuant to

Section 409.175, F.S. The five year re -

screens for the relicensing process must

include fingerprints. The supervising

agency or the department has the discretion

to request backgrou nd screening for other

individuals if there is reasonable belief

that:

(a) The person is a household member; or

(b) His or her presence in the family

foster home adversely affects the health,

safety and welfare of the children in the

home; or

(c) The person has or potential exists for

unsupervised contact with the children .

42 . Rule 65C - 13.023 (2) states:

These screenings shall, at a minimum,

include fingerprinting; statewide criminal

and juvenile records checks through the

Florida Department of La w Enforcement;

federal criminal records checks through the

Federal Bureau of Investigation; local

criminal record checks through local law

enforcement agencies, and may include

records of any responses to the home by law

enforcement that did not result in criminal

charges. Records checks through the

departmentÓs Statewide Automated Child

Welfare Information System (SACWIS)

regarding child abuse and neglect

investigations and civil court records

checks regarding domestic violence

complaints and orders of pr otection must

also be included. If the applicant or any

other adult household member has resided in

any other state during the past five years,

requests for abuse and neglect histories

must be made of those states, and the

results of such requests include d with the

application packet. Only abuse and neglect

reports in which the person being considered

for licensure was named as the Ðcaregiver

responsibleÑ for the abuse or neglect may be

used for initial licensing decisions . If

the person applying is or was a licensee of

the department and was named in any capacity

in three or more reports during a five year

period, regardless of classification, those

reports may be reviewed by the department

for their relevancy as it relates to the

licensing decis ion. All reports in which

the person seeking licensure or re - licensure

was named as the Ðcaregiver responsibleÑ

must be considered for licensing purposes.

For homes being considered for licensure for

longer than one year under Section

409.175(6)(j), F.S. , all abuse reports with

any findings shall be considered.

43 . It is clear from the language o f rule 65C - 13.023(2)

that it applies only to applications for initial licensure and

re - licensure . However, this proceeding does not involv e

initial licensure or re - licensure of Respondent s ' foster

home license ; it is a license revocation proceeding. Thus,

rule 65C - 13.023(2) ÏÏ which is cited as a basis for the proposed

revocation of Respondents' license ÏÏ does not apply to this

proceeding. 10 /

Rule 65C - 13.030(1)

44 . In the Notice of Intent, Petitioner states:

" [f]urthermore, this incident and verified report are a

violation of your signed Partnership Plan Agreement required by

65C - 13.030(1)(d), which states [sic] excellent parenting is a

reasona bl e expectation of caregivers."

45 . However, th e Partnership Plan Agreement ( " PPA " )

referenced in rule 65C - 13.030(1)(d) was not entered into

evidence in this proceeding. 1 1 /

46. Because there is no evidence regarding the terms of

the PPA, there is no basis on which to determine or conclude

that Respondents breached its terms. Thus, there is no

evidentiary basis on which to conclud e that Respondents violated

rule 65C - 13.030(1)(d ) .

Section 409.175(9)

4 7 . Section 409.175 (9) provides:

(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

materially 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.

§ 409.175(9), Fla. Stat. (emphasis added).

4 8 . As discussed above, it is undisputed t hat

Mrs. Iturriaga left A.A. in a parking lot with a stranger.

Although, fortunately, A.A. was not physically injured, her

a ction materially affected A.A.'s health and safety. Further,

a s discussed above, this action violate rule s 65C - 13.029(1)(b).

4 9 . Accordingly, Petitioner has shown, by the

preponderance of the evidence, that grounds exist, under

section 409.175 and rule 65C - 13.023, on which Petitioner may

revoke Respondents' foster home license.

50. However, section 409.175(9) grants Petitioner

discretion in taking disciplinary action against a license. To

that point, the statute does not mandate revocation of a license

when grounds set forth in subsubsection (b) are shown.

51. As discussed above, the undersigned finds that in this

case, mi tigating circumstances exist that justify imposing a

penalty less than revocation 12/ of Respondents' license.

52 . As discussed above, Respondents had an exemplary

foster care record, successfully fostering eight children over a

period of six years, until the extremely unfortunate incident

involving A.A. occurred. Given this nearly uniform history of

successful fos tering, and considering the extreme circumstances

that led to the incident involving A.A., it is highly unlikely

that allowing Respondents to retain their license would result

in harm or danger to foster children who may be placed in their

home in the futu re ÏÏ particularly if Citrus adequately performs

its child - placing duties. 13/

53 . Here, revoking Respondents' foster license would

significantly adversely affect J.O. ÏÏ effectively making him a

victim of A.A.'s behavior yet again. This would be manifestly

unfair to J.O. and unnecess arily punitive to both Respondents

and J.O.

54 . There is precedent for Petitioner exercising its

discretion to consider mitigating circumstances in child care

licensure decisions, including those involving proposed

revocatio n or denial of renewal.

55. Department of Children and Family Services v. Pearl

Wright , Case No. 07 - 0436 (Fla. DOAH May 14, 2007)(modified as to

amount of monetary penalty imposed), Case No. DCF - 07 - 185 (Fla.

DCF Aug. 10, 2007), which arose in the day ca re facility

licensing context, entailed circumstances similar to those in

this proceeding. In that case, the facility owner left five

young children, including a hearing - impaired child with

substantial behavioral problems, in the sole care of a 13 - year -

ol d child while she left the facility to pick up her car from

being repaired. Although the children were not injured during

the period of time the owner was absent, DCF sought to revoke

the day care facility license because of the potential danger to

the children while they were left unattended. The ALJ

recommended a monetary fine , rather than revocation , based on

the fact that although the chil dren could have been injured by

being left unsupervised by a qualified person, none actually

were injured. Furthermore, t he day care facility enjoyed an

excellent reputation and the incident was a one - time occurrence.

In its final order, DCF increased the monetary penalty but

otherwise materially agreed with the administrative law judge's

recommendation and did not revoke the day care license. 14/

5 6 . In L.K. v. Department of Children and Family Services ,

Cas e No. 08 - 2837 (Fla. DOAH Jan. 27, 2009; Fla . D CF May 4,

2009), in the foster home license renewal context, a substitute

foster care provider left a two - year - old child , A.R., overnight

in the care of two persons ÏÏ one of whom had not undergone

background screening ÏÏ who were not authorized to care for foster

children. As a result, at some point the following day, A.R.

was left completely unattended and wandered into a road wearing

only a t - shirt and underwear. On this basis, DCF proposed to

deny the renewal of L.K.'s substitute care provider license.

The ALJ found that DCF had shown, by a preponderance of the

evidence, that L.K. had committed a negligent act that

materially affected the health and safety of A.R., in violation

of section 409.175(9) . Nonetheless, the ALJ recommended that

DCF exercise i ts discretion and provisionally renew L.K.'s

license , on the basis that the evidence showed that L.K. was a

caring person who generally provided a warm and loving

environment for the children in her home, despite having made a

substantial error in judgment which resulted in A.R . being

placed in circumstances that posed a serious danger to his

health and safety. In its final order, DCF accepted the ALJ's

recommendation in toto and stated that if L.K. reapplied for her

license, it would not be denied on the basis of her action that

had endangered A.R.

57. The circumstances in this case are comparable to those

in Wright and L.K. Here, the undisputed evidence establishes

that Respondents have been successful foster parents for a

period of years, and , most r elevant now , have provided a loving,

nurturing, supportive home for J.O., who had serious social,

psychological, and academic problems before coming to live with

them, and who has flourished for over two and one - half years

under their care. As discussed above, revoking Respondents'

foster home license would have the primary effect of punishing

J.O. for events in which he had no part. Mrs. Iturriaga's

actions in leaving A.A. in the parking lot constituted a very

serious lapse of judgment, bu t the undisputed evidence shows

that it was an isolated incident that occurred under extremely

stressful circumstances. 15 / For the reasons discussed above, it

is concluded that it is unlikely Respondents would a gain engage

in actions that would materially affect the health or safety of

the children in their home.

58. Under the circumstances present in this case , it is

appropriate for Petitioner to take disciplinary action short of

revoking or suspending Respondents' license. To the extent

Petitioner believes that some penalty should be imposed on

Respondents, it is noted that r ule 65C - 13.035(4)(b) provides for

imposition of a corrective action plan to ensure t hat violations

are not repeate d; that may be an appropriate penalty in this

case. 16/

R E COMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Department of Children and

Families enter a final order dismissing the Notice of Intent to

Revoke Foster Home License issued on April 16, 2015 , and

imposing a corrective action plan on Respondents' foster home

license to the extent deemed appropriate .

DONE AND ENTERED this 17th day of February, 2016, in

Ta llahassee, Leon County, Florida.

S

CATHY M. SELLERS

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 17th day of February, 2016.

ENDNOTES

1/ Petitioner's Exhibit 6 consists of two audio recordings of

calls to 911 regarding the incident that gave rise to this

proceeding. Petitioner played the audio recordings of these

calls at the final hearing and proposed to submit the CD after

the final he aring as an exhibit. Respondent requested that the

third call to 911 also be admitted into the record and the

undersigned granted that request. After the hearing, Respondent

submitted the CD containing all three calls to 911. This CD,

which contains the three calls to 911 made on September 4, 2014,

has been admitted into evidence as Joint Exhibit A.

2/ Petitioner administers foster care programs by contracting

with third - party managing entities, child placing agencies, and

direct service providers. He re, Citrus Health Network is the

child placing agency, direct therapeutic service provider, and

is involved in administering Respondents' foster home license.

Citrus evaluates the home for compliance with applicable

standards and issues a recommendation t o Petitioner regarding

whether the home should be licensed and whether disciplinary

action should be taken against an existing license. Petitioner

takes agency action to license foster homes and impose

discipline on existing licenses. See § 409.175(6)(b) , Fla.

Stat.

3/ A therapeutic foster home is a foster home that provides

mental health services for children with emotional and

behavioral disturbances living in a family foster home. Each

home is managed by foster parents who provide specialized care

for children needing a therapeutic setting. Fla. Admin. Code R.

65C - 30.001(144).

4/ In 2010, A.A. was taken from the custody of his biological

parents, whose parental rights were terminated. A.A. was placed

in a foster home for some time, then was adm itted as an in -

patient at a mental health and behavioral treatment facility for

approximately one year. Thereafter, he was placed in

Respondents' foster home. The evidence shows that A.A. was

extremely aggressive and that he bullied the other child, J.O. ,

who lived in Respondents' home.

5/ There is no competent evidence in the record showing that

Mrs. Iturriaga nearly struck A.A. with the van. In the first

911 call, the caller stated that Mrs. Iturriaga began backing

out of the parking space while A.A. was standing next to the

open door. The only evidence in the record to the effect that

Mrs. Iturriaga nearly hit A.A. was a narrative in an Intake

Report prepared by a person who had no personal knowledge of the

matters addressed in the statement and who did not testify at

the final hearing. This statement is hearsay, does not fall

within any exception to the hearsay rule, and is the sole

evidence offered to prove Mrs. Iturriaga nearly struck A.A.

Accordingly, this statement is not given any weight. See

§ 120.57(1)(c), Fla. Stat.

6/ See Fla. Admin. Code R. 65C - 30.001(87).

7/ To characterize A.A.'s behavior over the course of his

placement with Respondents as mere "misbehavior" inaccurately

minimizes its seriousness. The competent, persuasive e vidence

establishes that A.A. had a history of engaging in extremely

aggressive behavior to the point that he was institutionalized

in an in - patient mental health facility for approximately one

year before being placed in Respondents' foster home, and that

he continued such behavior after being placed in their home ÏÏ

including bullying the other foster child placed in the home and

killing ducks in the presence of Respondents' granddaughter.

This behavior goes far beyond typical "misbehavior" by a child,

and clearly contributed to Mrs. Iturri a ga's extreme frustration

in dealing with A.A.

8/ Mrs. Iturriaga's obvious frustration with A.A. was not an

excuse for leaving him in the parking lot that day, but it does

explain her action in doing so.

9/ It is further noted that Mr. Iturriaga testified that

Respondents' only wish is to finish their care of J.O. under the

foster care system, and do not intend to foster other children

in the future.

10/ Rule 65C - 13.023(7) deals with background screening in the

license revocation process. That rule states:

(7) All records obtained, as a part of the

background screening, shall be considered in

the process of determining whether to issue

a foster care license or if there is a

current license, whether the license should

be revoked . Such records shall include

findings of delinquency; any misdemeanor or

felony criminal arrests resulting in a plea

of nolo contendere or conviction ; any

criminal traffic offenses resulting in a

plea of nolo contendere or conviction, an d

any civil cases of domestic violence and

orders for protection. Crimes perpetrated

in other states that are misdemeanors in

that state but would be felonies listed

under Section 435.04, F.S., if committed in

Florida shall be considered as disqualifying

offenses by the department for licensing

decisions.

Petitioner has not alleged, and, therefore, cannot rely on, this

rule as a basis for its pr oposed revocation of Respondent s '

license. See Marcelin v. Dep't of Bus. & Prof 'l . Reg. , 753 So.

2d 745, 746 - 47 (Fla. 3d DCA 2000). Furthermore, under any

circumstances, this rule plainly provides that the only

circumstances under which background screening records of felony

or misdemeanor criminal arrests can serve as the basis for

revokin g a foster home license are those resulting in a plea of

nolo contendere or a conviction. Here, the cri minal charges

against Mrs. Iturriaga were dropped. For these reasons, rule

65C - 13.023(7) does not constitute a basis for revoking

Respondents' license.

11/ Petitioner entered the Bilateral Service Agreement between

Citrus and Respondents, dated July 17, 2012, into evidence.

This is a different document from the PPA, which is referred to

in rule 65C - 13.030(1)(d) as CF - FSP 5226, February 2013, and is

a vailable at

https://www.flrules.org/gateway/reference.asp?NO=Ref - 03565

12/ The undersigned also recommends against suspending

Respondents' license, since suspension also would req uire J.O.

to be removed from Respondents' home.

13/ S ee r ule 65C - 15.022, describing the placement services the

child placing agency is required by law to provide to the child

and foster home into which he or she is placed.

14/ See Scurry v. Dep't of Child. & Fam. Servs. , Case No. 04 -

0713 (Fla. DOAH Sept. 14, 2004; Fla. DCF Jan. 12, 2005)(final

order imposed only fine, rather than revocation, for leaving

young children in the unsupervised care of an unqualified

15 - year - old).

15/ Again, it is noted that had Citrus timely removed A.A. from

Respondents' home ÏÏ as the circumstances certainly warranted ÏÏ the

September 4, 2014, incident would not have occurred.

16/ This rule states in pertinent part: "[i]f licensing

violations are found which do not imp ose an immediate threat to

the health, safety, or welfare of the children, the agency shall

prepare a corrective action plan to correct the deficiencies.

Although leaving A.A. in the parking lot presented a threat to

his health and safety, A.A. has been r emoved from Respondents'

home, and J.O. clearly is not in any danger. To the extent

Petitioner believes it is advisable to help ensure the safety

of a foster child who may be placed in Respondents' home in

the future, a corrective action plan containing appropriate

strategies and responses could be developed to provide

Respondents clear guidance on what actions to take if

circumstances similar to those on September 4, 2014, were to

arise again in the future.

COPIES FURNISHED:

Carlos Alberto Garcia, Es quire

Depa rtment of Children and Families

401 Northwest Second Avenue , Suite N - 1014

Miami, Florida 33128

(eServed)

Joseph Iturriaga

19711 Northeast Miami Court

North Miami Beach, Florida 33179

(eServed)

Paul Sexton, Agency Clerk

Department of Children and Families

Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

(eServed)

Rebecca Kapusta, General Counsel

Department of Children and Families

Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

(eServe d)

Mike Carroll, Secretary

Department of Children and Families

Building 1, Room 202

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

( e Served )

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 filed with the agency that

will issue the Final Order in this case.