20-003219 Mary And James Gilio vs. Department Of Children And Families Status: Closed Recommended Order on Monday, November 9, 2020.

Summary: Petitioners should not be granted a foster home license.

S TATEMENT OF T HE I SSUE

The issue in this case is whether Petitione rs should be issued a family

foster home license.

P RELIMINARY S TATEMENT

By letter dated June 8, 2020 (Notice Letter), the Department of C hildren

and Families (Respondent or the Department) notified Mary and James Gilio

( Petitioners ) of its intent to deny their application for a foster home license.

The decision in the Notice Letter was based on the unanimous

recommendation of a licensing review committee (Committee) and a review of

several reports of abuse of children for whom Petitioners were the caregiv ers .

Additionally, the Department mentioned Petitioners ' lack of willingness to

provide positive methods of discip line, and Petitioners' experience with their

adopted daughter as grounds for the denial . The Department cited sections

39.302(7)(a), Florida S tatutes , and Florida Administrative Code R ules 65C -

45.001, 65C - 45.00 1 (2)(e)3.a., 65C - 45.003, and 65C - 45.010 (4) in its decision.

Petitioners filed a Petition for Formal Administrative Hearing on June 26,

2020, which was referred to DOAH , and assign ed to t he undersigned. A pre -

hearing conference was held by Zoom on September 17, 2020, and the parties filed a Joint Stipulation of the Parties containing stipulated findings of facts

which have been incorporated in the Findings of Fact below to the extent they are relevant.

On September 24, 2020, the hearing commenced as scheduled. At the

hearing, Petitioners testified on their behalf, and Petitioners' Exhibits P1 and

P3 were admitted into evidence. Respondent presented testimony from Frank

Prado, Sheila DelCa stillo, Michelle Costley, Brendale Perkins, Kristin

Edwardson, and Rebecca Dorsey. Respondent' s Exhibits R1, R2, and R5

through R7 were admitted into evidence.

The Transcript of the hearing was filed on October 10, 2020. Both parties

timely filed Proposed Recommended Orders, which have been considered in

prepar ation of this Recommended Order.

F INDINGS OF F ACT

Based upon the testimony, exhibits, and stipulated facts in the Joint

Stipulation, the following Findings of Fact are made:

Parties and Process

1. Petitioners, who are husband and wife, submitted an application for

licensure as a family foster home. Although this was an application for initial

licensure, Petitioners were previously licensed as a foster home from August

2013 to October 2019. 1

2. The D epartment is the state agency responsible for licensing foster care

parents and foster homes, pursuant to section 409.175, Florida Statutes , and

Florida Administrative Code C hapter 65C - 45.

3. Petitioners voluntarily relinquished their foster home license o n or

about October 28, 2019, around the time two female foster children, S.W. and

H.C.S., were removed from their care. It is unclear whether the children were

removed because of an abuse investigation related to H.C.S . , or whether they

were re moved becaus e Petitioners closed their home to foster children.

Regardless, Mrs. Gilio testified that they let their license lapse because they

needed a break after fostering H.C.S.

4. The Department administers foster care licensing by contracting with

third - party pr ivate entities. In Circuit 13, where Petitioners are located, the

Department contracted with Eckerd Community Alternatives, doing business

as Eckerd Connects (Eckerd), to be the agency responsible for facilitating

foster care licensing. Eckerd has subcontr acted with Children's Home

Network (CHN) to facilitate foster care licensing.

1 Petitioners had previously been denied a foster care license in 2009.

5. At the time relevant to Petitioners, the Department used the

"attestation" model of foster home licensing. In this model, a private licensing

agency with who m the Departmen t has contracted will conduct a home study

on the foster home applica nts and attest to the applicant s ' fitness to be

licensed. The Department does not have the discretion to deny the license

once the licensing agency has attested to the appropriateness of the

applicants, except if they have been named as caregiver s in three or more

abuse reports within five years . If there are such abuse reports, the

Departme nt is required to review those reports and make a final decision

regarding the application. There is no requirement that the reports result in

a finding of actual abuse for them to be reviewed by the Department. 2

6 . Although it is unclear when Petitioners submitted their application for

the foster care license in this case, sometime in late 2019, CHN con ducted

and compiled a Unified Home Study (home study) , which included

Petitioners' background screening ; previous reports of abuse, abandonment,

or neglect involving the applicants, and references from all adult children.

7. The home study was reviewed at a meeting on December 19, 2019, by

Ecke rd, through the C ommittee . The Committee considered the application,

home study, and licensing packet and heard from various agency staff .

Petitioners were also allowed to voice comments and concerns at this

meeting.

8. Had the Committee approved the application, it would have been sent

to the Department along with an attestation that stated the foster home

meets all requirements for licensure and a foster home license is issued by

the Department. However, the Commit tee unanimously voted not to

rec ommend approval of a foster home license to Petitioners.

2 The categories of findings for an abuse report are "no indicator," "not substantiated," and

"verified." "No indicator" means there was no credible evidence to suppor t a determination of

abuse. "Not substantiated" means there is evidence, but it does not meet the standard of

being a preponderance to support that a specific harm is the result of abuse. "Verified"

means that there is a preponderance of credible evidence which results in a determination that a specific harm was a result of abuse.

9. Frank Prado, Suncoast Regional Managing Director for the

Department, ultimately decided to deny Petitioners ' application for a family

foster home license due to th eir prior parenting experiences, the multiple

abuse reports regarding their home, and the recommendation of the

Committee . Mr. Prado expressed concern about the nature of the abuse

reports and Petitioners ' admission that they used corporal punishment on a

child they adopted from the foster care system in the presence of other foster

children.

Petitioners' Parenting History

10 . Petitioners have seven children: o ne is the biological son of Mr. Gilio;

another is the biological son of Mrs. Gilio; and five were adopted through the

foster care system in Florida. Of these seven children, six are now adults.

Three of the adopted children, Jay, Sean, and Jam e son , are biological

brothers who Petitioners adopted in 2001. Shawna , who was adopted around

2003 , is the only adopted daughter.

11. The Petitioners' one minor child, H.G. , is a nine - year - old boy and the

only chi ld who resides in their home. H.G. suffers from oppositional defiance

disorder.

12 . Petitioners admitted they adopted Shawna after there had been

allegat ions of inappropriate behavior made against Jay, by a young girl who

lived next door to Petitioners. Later, while they were living with Petitioners,

Jay, Sean, and Jameson were arrested for sexually abusing Shawna at

different times. As a result, one or mo re of the sons were court - ordered to not

be around Shawna, and the other brothers were required to undergo

treatment a nd never returned to Petitioners' home.

13. During the hearing, both Petitioners seem to blame Shawna, who was

nine years old when the se xual abuse by Jay in their home allegedly began,

for disruptin g their home. They accused her of being "not remorse ful" and

"highly sexualized." Regarding the abuse by Sean and Jameson, which

occurred when Shawna was approximately 12 years old , Mr. Gilio st ated

Shawna thought it was okay to have sex with boys, and it was "hard to watch

every minute of the day if t hey're, you know, having sex."

14. When Shawna was about 19 years old, she filed a "Petition for

Injunction for Protection Against Domestic Violen ce " against Mr. Gilio in

circuit court. The Petition outlined allegations of past sexual comments and

inappropriate disciplinary behavior from 2007 to 2012, while she lived with

Petitioners. Mr. Gilio denied at the hearing having any knowledge about the Pe tition against him, but admitted he made comments about Shawna's

breasts.

15. As part of the application and home study process, the CHN collected

references from Petitioners ' former fost er children and adult children.

Shawna (Petitioners ' only adopted dau ghter) gave them a negative reference

and specifically stated she would not want female foster children to live with

Petitioners.

Reports of Abuse

16. Petitioners were involved in 24 abuse reports during their time of

licensure between 20 13 and 2019. Dur ing the past five years, Petitioners

were named as either alleged perpetrators or caregivers responsible in eight

reports that were made to the Florida Child Abuse Hotline (Hotline). Of those

eight reports, five of them named Mr. Gilio as the alleged perpe trator causing

a physical injury, one report named Mr. Gilio as the car egiver responsible for

a burn on a foster child, and one report named Mr. Gilio as an alleged

perpetrator of sexual abuse against a fost er child. Mrs. Gilio was named as

an alleged perp etrator of asphyxiation as to a foster child.

17. Seven of the reports in the last five years against Petitioners were

closed with no indicators of abuse. One of the abuse reports was closed with a

"not substantiated" finding of physical injury. In this r eport , Mr. Gilio was

the alleged perpetrator and the victim was H.G. , Petitioners' minor adopted

son.

18. Additionally, after Petitioners let their foster license lapse in

October 2019, a subsequent report was made against Mr. Gilio for improper

contact wi th a former foster daughter. This incident was discussed at the

Committee meeting, but it was unclear if this allegation was ever

investigated.

Corporal Punishment

19 . According to the Department's rules, discussed below, foster parents

are forbidden to e ngage in corporal punishments of any kind. In 2019, there

were two reports alleging Mr. Gilio of causing physical injury b y corporal

punishment on H.G. At the time, there were other foster children in the

household.

20. Technically, Mr. Gilio was allowed to use corporal punishment on H.G.

because he was no longer a foster child and had been adopted from foster care. If a parent uses corporal punishment on a child, there can be no

findings of abuse unless the child suffered temporary or permanent

disfigure ment. However, foster care providers are not permitt ed to use

corporal punishment. More than one witness at the hearing had concerns

about the use of corporal punishment against H.G. because of his operational

defiance disorder and because other foster chi ldren (who may have been

victims of physical abuse) were in the household.

21. Brendale Perkins , who is a foster parent hers elf and serves on the

Hillsborough County Family Partnership Alliance, an organization that

suppor ts licensed foster parents, testi fied she witnessed Mr. Gilio treating a

foster child in his care roughly. At the time , she was concerned because this

was not the way children in foster care (who may have previously been

victims of abuse) should be treated. She did not, however, report it to any

authorities.

22. The Department established through testimony that the policy against

using corporal punishment is taught to all potential foster families. Mr. Gilio, however, denied ever being instructed not to use corporal punishment against

fos ter children or while foster children were in the home. He also claimed

that H.G.'s therapist had never recommended any specific punishment

techniques. The undersigned finds Mr. Gilio's testimony not credible.

Cooperation with Fostering Partners

23. The D epartment established that decisions regarding foster children

are made within a "system of care" which includes input from case managers,

guardian ad litem (GAL), and support service providers. The relationship between Petitioners and others working as pa rt of this system during the

time of fostering was not ideal ; it was described by witnesses as "tense " and

"disgruntled."

24. One witness, a supervisor at CHN, testified Mr. Gilio was not

receptive or flexible when partnering with other agencies, and was not

always open to providing information when questioned. As an example,

Petitioners fired a therapist without consulting with the CHN staff or the

GAL for the child. At the final hearing , Mr. Gilio continued to claim he did

nothing wrong by not consulting with others in the system regarding this

decision.

25 . Kristin Edwardson, a child protection investigator for the

Hillsborough County Sheriff's Office, was tasked with investigating the

reports of abuse and neglect against Petitioners that had been repor ted to the

Hotline. She testifi ed she was concerned with the level of cooperation they

provided her and other investigators. Although they ultimately would

cooperate, Petitioners made it difficult for the investigators and would often "push back" and make the situation more stressful. She described Mr. Gilio

as being disres pectful, belittling, and dismissive of her.

Licensing Review Committee

26 . On December 19, 2020, the Committee, made up of eight individuals,

was convened to review Petitioners' applicat i on for a foster home license .

When determining whether a family should receive a foster home license, the Committee is to evaluate the applicants' background, parenting experience,

references from community partners, and the family ' s openness and

willingne ss to partner.

27. Sheila DelCastillo, a regional trainer with the GAL program , was a

Committee member . She had prior knowledge of Petitioners from a report

that a foster child 's room in Petitioners ' ho me smelled strongly of urine

during a home visit and that GAL staff had found a prescription bottle beside

the child’s bed that belonged to Mr. Gilio.

28. With regards to Petitioners' application, she read the licensing review

packet and home study that contained numerous abuse reports.

Ms. DelCastillo was concerned about the 24 abuse reports Petitioners’

received during their time of licensure, the negative reference from Shawna,

their use of corporal punishment on H.G., and Petitioners' downplaying of the

events that led to multiple abuse reports.

29. Mich elle Costley, a licensing director with CHN in charge of level 2

traditional foster homes, also served on the Committee . Ms. Costley has 14

years of experience, with seven of those years spent in foster care licensing. As director of licensing, Ms. Costley was concerned about the number of

abuse reports received regarding Petitioners ; Mr. Gilio ' s in ability to be open

and flexible when working in partnership with other agencies ; and the needs

of Petitioner s ' child, H.G. She was also concerned about Petitione rs' decision

to fire a therapist of a foster child without consulting the GAL or the other

individuals involved with that child.

30. Regarding the alleged abuse, Ms. Costley was concerned that most of

the reports regarding Petitioners involved allegations of physical abuse,

inappropriate touch of a sexual nature, or sexual abuse , with most alleged

victims being younger than eight years old. She explained th at even though

these reports could not be "verified," these types of allegations are harde r to

establ ish because testimony by children of that age often is unreliable and

there usually must be evidence of physical injury, which no longer is present

by the time the alleged abuse is investigated.

31. Ms. P erkins also served on the Committee . Ms. Perkins se rved as a

foster parent mentor, working with foster parents to help them build co -

parenting strategies and navigate the system of care. She has been a licensed

foster parent for 13 years and has adopted 11 children from foster care. As

stated earlier, she was familiar with Petitioners from the Hillsborough

County Family Partnership Alliance meetings. Ms. Perkins was concerned

with the number of abuse reports with similar alle gations, but different

victims. She also discussed Petitioners' use of corporal pun ishment, noting

that they could have been using verbal de - escalation methods instead of

corporal punishment due to the traumatic histories of many foster care

children.

32. Ms. Edwardson also served on the C ommittee. In addition to her

personal interactio ns with Petitioners, Ms. Edwardson was concerned about

the totality of the information presented to the C ommittee regarding the

abuse reports and Mr. Gilio's lack of cooperation. She noted that although

they were not substantiated, the number and nature of the reports related to

young children were of concern.

33. Based on the Committee notes and transcript of the meeting ,

Petitioners were allowed to respond to the Committee 's questions at the

December 2019 meeting . They argued that none of the abuse repor ts were

proven true and any injuries were not their fault. They seemed more

concerned about who made the abuse reports and why the abuse reports were

called in than whether the foster children were protected in their care. For

example, although Mr. Gilio a dmitted to hitting H.G. with a stick twice as big

as a pencil, he denied any bruising was caused by the stick. A report of a

burn on another child was explained by Mr. Gilio as an accident that occurred while h e was teaching her how to iron; h e could not u nderstand why this was

reported as possible abuse. Ms. Gilio explained that H.C.S. was a very active

child which resulted in her needing sti t ches and requiring restraint.

34. After hearing from Petitioners, the Committee members discussed

their concerns th at Petitioners were not forthcoming about the various abuse

incidents, and would not take responsibility for any of the injuries or issues

raised by the abuse reports. All eight members voted to not move Petitioners'

application forward.

C ONCLUSIONS OF L A W

35 . DOAH has jurisdiction over the parties to and subject matter of this

proceeding pursuant to section s 120.569 and 120.57(1), Florida Statutes

(2020) . 3

36. As the applicant, Petitioners bear the burden of proof regarding their

application for foster h ome licensure. See Florida Dep't of Trans p . v . J.W.C.

Co., Inc. , 369 So. 2d 778 (Fla. 1st DCA 1981).

37 . Regarding the regulation of family foster homes, s ection 409.175

provides in relevant part:

(2) As used in this section, the term:

* * *

(f) “Licens e” means “license” as defined in

s. 120.52(10). 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.

(emphasis ad ded).

3 Unless otherwis e provided , all references to statutes and administrative rules are to the

2020 codifications. See Lavernia v. Dep't of Prof'l Regulation, Bd. of Med ., 616 So. 2d 53 (Fla.

1st DCA 1993) (noting amendments to licensure requirements applied to pending

application ).

38. Petitioners do not dispute the number of reports of abuse made

regarding foster children in their care . Rather, they challenge the review by

the Committee and Department of these reports because they are not

"verified." Petitioners rely on secti on 39.301(21), which states:

39.301 Initiation of protective investigations.

* * *

(21) When an investigation is closed and a person

is not identified as a caregiver responsible for the

abuse, neglect, or abandonment alleged in the

report , the fact that the person is named in some

capacity in the report may not be used in any way to adversely affect the interests of that person. This

prohibition applies to any use of the information in

employment screening, licensing, child placement, adoption, or any ot her decisions by a private

adoption agency or a state agency or its contracted providers, except that a previous report may be

used to determine whether a child is safe and what

the known risk is to the child at any stage of a child protection proceeding. (emphasis added ).

39 . Although Petitioners' position is not addressed by the Department,

this statute does not apply for three reasons. First, this statute only applies

when a person is not identified as a responsible caregiver . As noted above in

the re ports for the past five years, either Mr. Gilio or Mrs. Gilio was

identified as the caregivers r eviewed by the C ommittee and Department .

40 . Second, as noted in section 409.175(2)(f), a foster care license is not

considered a professional license, but ra ther , a privilege . Petitioners'

interpretation of the statute is inconsistent with the guiding princip le that

approval of a foster home license is an act of public trust. The Department

cannot ignore the number and nature of abuse reports which name

Petiti oners as caregivers. Nor is it improper to consider the sexual abuse of

Shawna that occurred in their household. Separate from any reports, the

circumstances were fully addressed in the hearing testimony , with troubling

implications as to whether foster ch ildren placed in the Petitioners' home in

the future would be safe and protected if the license was approved.

41 . Third, section 39.302(7)(a) specifically allows such review of abuse

reports: where the person seeking the foster care license "is named in a ny

capacity in three or more reports within a 5 - year period, the department may

review those reports and determine whether the information contained in the

reports is relevant." Id.

42. Consistent with sectio n 39.302, rule 65C - 45.001(2)(e) addresses how

a buse records can be used by the reviewing community - based care agency

(CHN and Eckerd):

65C - 45.001. Background Screening

Requirements for all Levels of Licensure.

(1) The Department shall conduct background screenings for all persons considered by the Dep artment for initial licensure, re - licensure, or re -

screenings for 3 - year licensure for out - of - home

caregivers and all adult household members age 18 and older, pursuant to Sections 409.175 and

39.0138, F.S.

(2) These screenings shall include:

* * *

(e) Abuse and neglect records check through the

Department's Florida Safe Families Network

(FSFN) which shall be documented on the “Central Abuse Hotline Record Search” form, CF 1651, April 2020, incorporated by reference and available at

https://www.flrules.o rg/Gateway/reference.asp?No=

Ref - 11811 ;

* * *

3. The Department's Regional Family Safety Office

shall review the following reports to determine whether a license shall be issued:

a. When the applicant or any other household

member was named in any capaci ty in three (3) or

more reports within a five (5) year period,

regardless of classification . (emphasis added).

43. Moreover, rule 65C - 38.002 provides that the Department or the

attestation agency (in this case CHN and Eckerd) shall consider the

informati on from the Hotline on all persons in the potential foster care

household.

65C - 38.002. Child Abuse, Abandonment and

Neglect Record Check.

(1) The Department, community - based care lead

agency and its subcontracted providers shall check the electronic F SFN case record for information on

all persons being considered for placement of a child, including parents and all members of the household, 12 years of age and older, and other

visitors to the home 18 years or older who have

unsupervised contact with the child.

44. Relevant to this case, the Department or attestation agency was also

required to assess whether Petitioners could work with the professional team

supporting the foster child and consider their wil ling ness to share

i nformation. Fla. Admin. Code R. 65C - 45.003(3)(f)3. ( including as part of

home study: "How the caregiver(s) is (are) able to participate in a professional team supporting the child by sharing necessary information with other professionals on the team.").

45. Finally, foster parents ar e required to use positive methods of

discipline and are prohibited from using corporal punishment on a foster

chil d that is placed in their care. Fla. Admin. Code R. 65C - 45.010(4) (b) and

(d) ("Licensed out - of - home caregivers shall not use corporal punishm ents of

any kind."); s ee also Sanders v. Dep't of Child . & Fam. , 118 So. 3d 899 (Fla.

1st DCA 2013) (ruling statute providing for religious curriculum or teachings

in a family foster home did not deprive Department of legal authority to

prohibit corporal p unishment). Although technically Petitioners did not

violate this rule by using corporal punishment on their adoptive child, H.G.,

the Department and CHN could consider this fact when assessing whether

Petitioners demonstrated the commitment to using posit ive methods of

discipline instead of corporal punishment. Fla. Admin. Code R. 65C -

45.003(3)(f)4.a. (listing the following as a consideration in licensure : "How the

caregiver(s) is (are) willing and able to make a loving commitment to the child(ren)'s safet y and well - being by [ ] providing supervision and positive

methods of discipline.").

46. CHN, Eckerd, and the Department properly considered the abuse

reports made against Petitioners in the past five years, Petitioners' use of

corporal punishment in the foster home, Petitioners' lack of cooperation and

tense relationship with other professional partners in the past, and Petitioners' past pare nting experiences with Shawna. T hese are all required

consider ations pursuant to the statutes and administrative ru les governing

the licensure of foster care homes.

47 . Based on these factors and the findi ngs above, Petitioners have not

met their burden in proving they currently me et the standards for family

foster home licensure.

R ECOMMENDATION

Based on the forego ing Findings of Fact, Conclusions of Law, the evidence

of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order

be entered by the Department of Children and Famil i es denying a family

foster home license to Petitioners , Mary and Ja m es Gilio .

D ONE A ND E NTERED this 9th day of November , 2020 , in Tallahassee, Leon

County, Florida.

H ETAL D ESAI

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 9th day of November , 2020 .

C

OPIES F URNISHED :

Anthony D uran, Esquire

Tison Law Group

9312 North Armenia Avenue

Tampa, Florida 33612

(eServed)

Deanne Cherisse Fields, Esquire Department of Children and Families

9393 North Florida Avenue

Tampa, Florida 33612

(eServed)

Lacey Kantor, Esquire

Department of Chil dren and Families

Building 2, Room 204Z

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

(eServed)

Javier A. Enriquez, General Counsel

Department of Children and Families

Building 2, Room 204F

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0 700

(eServed)

Chad Poppell, Secretary

Department of Children and Families

Building 1, Room 202

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

(eServed)

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

All parties have the right to submit written exceptio ns 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.