97-004949
Priscilla Ghans vs.
Department Of Children And Family Services
Status: Closed
Recommended Order on Thursday, May 21, 1998.
Recommended Order on Thursday, May 21, 1998.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8PRISCILLA GHANS, )
11)
12Petitioner, )
14)
15vs. ) Case No. 97-4949
20)
21DEPARTMENT OF CHILDREN )
25AND FAMILY SERVICES, )
29)
30Respondent. )
32____________________________________)
33RECOMMENDED ORDER
35Upon due notice, William R. Cave, an Administrative Law
44Judge for the Division of Administrative Hearings, held a formal
54hearing in this matter on January 14, 1998, in Labelle, Florida.
65APPEARANCES
66For Petitioner: Priscilla Ghans, pro se
72Post Office Box 2252
76Clewiston, Florida 33440
79For Respondent: Eugenie G. Rehak, Esquire
85Department of Children
88and Family Services
91Post Office Box 60085
95Fort Myers, Florida 33906
99STATEMENT OF THE ISSUE
103Should Petitioner's application for foster home licensure be
111granted?
112PRELIMINARY MATTERS
114By letter dated September 4, 1997, the Department of
123Children and Family Services (Department) advised Petitioner that
131her application for licensure as a foster home had been denied.
142The basis of the denial was: (a) Petitioner's failure to meet
153minimum standards concerning sufficient income for foster home;
161(b) that a current member of Petitioner's household had been
171convicted of criminal offenses which were disqualifying offenses
179under Chapter 435, Florida Statutes; and (c) Petitioner's
187inappropriate actions concerning E. O., a foster child previously
196under Petitioner's care. Additionally, the Department advised
203Petitioner of her right to a formal hearing.
211By letter dated September 29, 1997, Petitioner requested a
220hearing pursuant to Chapter 120, Florida Statutes.
227By a Notice dated October 20, 1997, the Department referred
237this matter to the Division of Administrative Hearings (Division)
246for the assignment of an Administrative Law Judge and for the
257conduct of a hearing.
261At the hearing, Petitioner testified in her own behalf and
271presented the testimony of Hyacinth Ewin and Samuel Simmons.
280Petitioner's Composite Exhibit One and Exhibit Two were received
289as evidence. Petitioner's Exhibit Three was rejected. The
297Department presented the testimony of Michele Altman, Leola
305Horton, Valerie Walter, Linda Tillman, and Patricia Richardson.
313The Department's Exhibits A-3 through A-9 were received as
322evidence. Rules 65-13.010 and 65-13.011, Florida Administrative
329Code, were officially recognized.
333There was no transcript of this proceeding filed with the
343Division. At the conclusion of the hearing, the Court Reporter
353was instructed to retain all of the exhibits so that she could
365copy the exhibits and furnish the parties copies, where
374necessary. By letter dated February 16, 1998, the Court Reporter
384returned two exhibits to the undersigned and advised the
393undersigned that, where necessary, copies of the exhibits had
402been furnished to the parties. By order dated February 18, 1998,
413the parties were advised that they had until 5:00 p.m. on
424March 4, 1998, to file their respective proposed recommended
433orders. The Department timely filed its proposed recommended
441order under the extended time frame. Petitioner elected not to
451file a proposed recommended order.
456FINDINGS OF FACT
459Upon consideration of the oral and documentary evidence
467adduced at the hearing, the following relevant findings of fact
477are made:
4791. Petitioner operated a family foster home at 1028
488Mississippi Avenue, Clewiston, Florida, which had been licensed
496by the Department or its predecessor, Department of Health and
506Rehabilitative Services, from April 18, 1991, through April 1,
5151997.
5162. In December 1996, the Petitioner was advised that the
526Department's licensing staff would be recommending that
533Petitioner's family foster home not be granted licensure at the
543end of Petitioner's current licensure period of April 1, 1997.
5533. By letter dated March 17, 1997, the Department advised
563Petitioner that the Department would not be furnishing her a
573packet for relicensure except upon request by Petitioner.
581Subsequently, Petitioner requested a relicensure packet and made
589application for relicensure of her family foster home located at
5991028 Mississippi Avenue, Clewiston, Florida.
6044. After reviewing Petitioner's application for renewal of
612her family foster home license, the Department, by letter dated
622September 4, 1997, advised Petitioner that her application for
631renewal of her family foster home located at 1028 Mississippi
641Avenue, Clewiston, Florida, had been denied. The denial letter
650provides in pertinent part as follows:
656The Department of Children and Families
662hereby denies Priscilla Ghans a license for
669purposes of providing substitute care for
675children in the custody of the State of
683Florida and in support thereof, would show
690the following:
6921. Ms. Ghans' current income and expenses
699are insufficient to meet the requirements of
706Rule 65C-13.025(5), Florida Administrative
710Code. (Formerly known as Rule 10M-6 F.A.C.)
7172. Paul Beadle, a current household member,
724has criminal offenses which are disqualifying
730within Chapter 435 of the Florida Statutes.
737In accordance with Section 409.175(5)(h),
742Florida Statutes, a license may not be issued
750if any member of the household failed to pass
759background screening.
7613. In addition, Priscilla Ghans was licensed
768as a foster parent in 1996. E.O. was a
777foster child placed in her home in 1996.
785During his placement, Ms. Ghans failed to
792provide adequate supervision which is a
798violation of Sections 409.175(4)(a)(1,2,4)
804and (8)(b)1, Florida Statutes and Rule 65C-
81113.024(1)(b)(1,a), Florida Administrative
815Code.
8164. When E. O. left her home, his personal
825belongings were placed in a garbage bag along
833with trash and debris. The majority of his
841clothes were unwearable in that they were to
849small or unsuitable. This is a violation of
857Rule 65C-13.024(1)(b)(1,c) and (3,a-d)
863Florida Administrative Code. . . .
8695. Petitioner's monthly expenses total $491.00.
875Petitioner's monthly income from Social Security and SSI total
884$504.00.
8856. A Financial Statement filed with the Department by
894Petitioner refers to Petitioner having a savings account but does
904not indicate the amount of the savings account or if this savings
916account is available for monthly expenses. Neither the
924Department nor Petitioner offered any other evidence concerning
932this savings account.
9357. Likewise, there was testimony that Petitioner's son,
943Paul Beadle, paid Petitioner room and board while with
952Petitioner. However, there was no evidence as to the amount
962Beadle paid Petitioner for room and board.
9698. On June 23, 1997, Beadle pled nolo contendere to: (a)
980possession of cocaine, a third degree felony, and a violation of
991893.13(6((a), Florida Statutes; (b) possession of marijuana
998(20 grams or less), a first degree misdemeanor, and a violation
1009of Section 893.13(6)(b), Florida Statutes; and (c) possession of
1018paraphernalia, a first degree misdemeanor, and a violation of
1027Section 893.147, Florida Statutes. Since the felony offense was
1036committed less than three years ago, Beadle cannot be granted an
1047exemption from disqualification under Section 435.07(1)(a),
1053Florida Statutes.
10559. Paul Beadle lived in the home with Petitioner up until
1066July 1997. Although Petitioner has never established the date
1075that Beadle moved from her home, she contends that Beadle has
1086moved out of her home. However, Petitioner testified that in the
1097past when Beadle wanted to return, she has always allowed him to
1109move back home.
111210. E.O., a foster child approximately 13 years of age, was
1123placed in Petitioner's family foster home in 1996. After his
1133placement, Petitioner allowed E.O. to attend a block party in the
1144neighborhood without being under her supervision or the
1152supervision of any properly screened adult. Around 11:00 p.m.,
1161E.O. had to bang on the door in order to get in since Petitioner
1175had gone to sleep.
117911. On another occasion, E.O. made plans to stay overnight
1189with a friend. However, the friend's parents had not been
1199screened to supervise foster children. On this occasion, the
1208father of the friend called Petitioner to advise her that E.O.
1219could not spend the night. Although E.O. did not return home
1230until the next morning, Petitioner did not contact law
1239enforcement or the Department.
124312. Petitioner also went shopping without advising E.O.
1251that she was leaving or when she would return. E.O., who had
1263never been given a key by Petitioner, attempted to break into
1274Petitioner's home.
127613. E.O. was removed from Petitioner's care in August 1996
1286on an emergency basis when E.O. threatened suicide.
1294Subsequently, E.O.'s clothing was retrieved from Petitioner in
1302two plastic bags and delivered to Valerie Welter, foster parent
1312who had taken E.O. Upon opening the bags of clothing, it was
1324clear that Petitioner had failed to properly maintain the clothes
1334and had failed to furnished E.O. with clothes of the proper size.
1346CONCLUSIONS OF LAW
134914. The Division of Administrative Hearings has
1356jurisdiction over the parties and the subject matter of this
1366proceeding pursuant to Sections 120.57(1), Florida Statutes.
137315. Sections 409.175(1)(a), (2)(c),(e),(i),and (k),
1381(4)(a)2., 5.,.and 8., (5)(h), and (8)(a),(b)1.,2.,3.,and 4.,
1393Florida Statutes, provide in pertinent part as follows:
1401(1)(a) The purpose of this section is to
1409protect the health, safety, and well-being of
1416all children in the state who are cared for
1425by family foster homes, residential child-
1431caring agencies, and child-placing agencies
1436by providing for the establishment of
1442licensing requirements for such homes and
1448agencies and providing procedures to
1453determine adherence to these requirements.
1458* * *
1461(2) As used in this section, the term:
1469* * *
1472(c) "Child" means any unmarried person under
1479the age of 18 years.
1484* * *
1487(e) "Family foster home" means a private
1494residence in which children who are
1500unattended by a parent or legal guardian are
1508provided 24-hour care. . . .
1514* * *
1517(f) "License" means "license" as defined in
1524s. 120.52(9). A license under this section
1531is issued to a family foster home or other
1540facility and is not a professional license of
1548any individual. Receipt of a license under
1555this section shall not create a property
1562right in the recipient. A license under this
1570act is a public trust and a privilege, and is
1580not an entitlement. This privilege must
1586guide the finder if fact or trier of law at
1596any administrative proceeding or court action
1602initiated by the department.
1606* * *
1609(i) "Personnel" means all owners, operators,
1615employees, and volunteers working in
1620a. . .family foster home. . . .For purposes
1629of screening, the term shall include any
1636member, over the age of 12 years, of the
1645family of the owner or operator or any person
1654other than a client, over the age of 12
1663years, residing with the owner or operator if
1671the agency or family foster home is located
1679in or adjacent to the home of the owner or
1689operator or if the family member of, or
1697person residing with, the owner or operator
1704has any direct contact with the children.
1711* * *
1714(k) "Screening" means the act of assessing
1721the background of personnel and includes, but
1728is not limited to, employment history checks
1735as provided in Chapter 435, using level 2
1743standards for screening set forth in that
1750chapter.
1751* * *
1754(4)(a) The department shall adopt and amend
1761licensing rules for family foster homes,
1767residential child-caring agencies, and child-
1772placing agencies. . . . The requirements for
1780licensure and operation of family foster
1786homes, residential child-caring agencies, and
1791child-placing agencies shall include:
1795* * *
17982. The provision of food, clothing,
1804educational opportunities, services,
1807equipment, and individual supplies to assure
1813the healthy physical, emotional, and mental
1819development of the children served.
1824* * *
18275. The good moral character based upon
1834screening, education, training, and
1838experience requirements for personnel.
1842* * *
18458. Satisfactory evidence of financial
1850ability to provide care for the children in
1858compliance with licensing requirements.
1862* * *
1865(5)(h) Upon determination that the applicant
1871meets the state minimum licensing
1876requirements, the department shall issue a
1882license without charge to a specific person
1889or agency at a specific location. A license
1897may be issued if all screening materials have
1905been timely submitted; however, a license may
1912not be issued or renewed if any person at the
1922home or agency has failed the required
1929screening .
1931* * *
1934(8)(a) The department may deny, suspend, or
1941revoke a license.
1944(b) Any of the following actions by a home
1953or agency or its personnel is ground for
1961denial, suspension, or revocation of a
1967license:
19681. An intentional act or negligent act
1975materially affecting the health or safety of
1982children in the home or agency.
19882. A violation of the provisions of this
1996section or of licensing rules promulgated
2002pursuant to this section.
20063. Noncompliance with the requirements for
2012good moral character as specified in
2018paragraph (4)(a).
20204. Failure to dismiss personnel found in
2027noncompliance with the requirements for good
2033moral character. (Emphasis Furnished)
203716. Section 435.04(2)(cc), Florida Statutes, provides as
2044follows:
2045(2) The security background investigations
2050under this section must ensure that no
2057persons subject to the provisions of this
2064section have been found guilty of, regardless
2071of adjudication, of entered a plea of nolo
2079contendere or guilty to, any offense
2085prohibited under any of the following
2091provisions of the Florida Statutes or under
2098any similar statute of another jurisdiction.
2104* * *
2107(cc) Chapter 893, relating to drug abuse
2114prevention and control, only if the offense
2121was a felony or if any other person involved
2130in the offense was a minor.
213617 Rule 65C-13.010(1)(b)1.a., 3.a. c. and d., provides as
2145follows:
2146(1) Responsibilities of the Substitute
2151Parent to the Child.
2155* * *
2158(b) Family Care Activities.
21621. Daily living tasks.
2166a. The substitute parents are expected to
2173provide structure and daily activities
2178designed to promote the individual physical,
2184social, intellectual, spiritual, and
2188emotional development of the children in
2194their home.
2196* * *
21993. Clothing and Personal Belongings.
2204a. All children should be provided with
2211their own clean, well-fitting, attractive
2216clothing appropriate to their age, sex and
2223individual needs, in keeping with community
2229standards and appropriate to the season.
2235* * *
2238c. All children must be allowed to bring,
2246retain and acquire personal belongings while
2252in care. Substitute parents must help each
2259child protect and preserve possessions which
2265are important to the child.
2270d. When the child leaves the family home the
2279substitute care parents must send along with
2286him all serviceable clothing and personal
2292belongings bought for, earned or given to the
2300child. This includes any toys, bicycles,
2306radios, or other things that are the child's
2314personal belongings.
231618. The reference to Rules 65C-13.024 and 65C-13.025,
2324Florida Administrative Code, in the Denial of Foster Home License
2334is clearly a scrivener's error since these rules have never been
2345promulgated by the Department. However, during the hearing
2353Petitioner was made aware that the Department was relying on
2363Rules 65C-13.010 and 65C-13.011, Florida Administrative Code,
2370rather than the rules cited in the denial letter. In fact, the
2382Department requested and was granted official recognition of
2390Rules 65C-13.010 and 65C-13.011, Florida Administrative Code,
2397without objection from Petitioner. Likewise, Petitioner was on
2405notice of the statutory violations that the Department was
2414relying upon.
241619. The burden is upon the Petitioner to establish facts to
2427show her entitlement to licensure as a family foster home.
2437Although Petitioner's son, Paul Beadle is no longer living in
2447Petitioner's home and would not prevent Petitioner from being
2456licensed, Petitioner has committed other serious statutory and
2464rule violations which prevent her licensure as a family foster
2474home. Petitioner has failed to meet her burden to show
2484entitlement to licensure as a family foster home.
2492RECOMMENDATION
2493Based on the foregoing Findings of Fact and Conclusions of
2503Law, it is recommended that the Department enter a final order
2514denying Petitioner's application for licensure as a family foster
2523home.
2524DONE AND ENTERED this 21st day of May, 1998, in Tallahassee,
2535Leon County, Florida.
2538WILLIAM R. CAVE
2541Administrative Law Judge
2544Division of Administrative Hearings
2548The DeSoto Building
25511230 Apalachee Parkway
2554Tallahassee, Florida 32399-3060
2557(850) 488-9675 SUNCOM 278-9675
2561Fax Filing (850) 921-6947
2565Filed with the Clerk of the
2571Division of Administrative Hearings
2575this 21st day of May, 1998.
2581COPIES FURNISHED:
2583Priscilla Ghans
2585Post Office Box 2252
2589Clewiston, Florida 33440
2592Eugenie G. Rehak, Esquire
2596Department of Children
2599and Family Services
2602Post Office Box 60085
2606Fort Myers, Florida 33906
2610Gregory D. Venz, Agency Clerk
2615Department of Children
2618and Family Services
2621Building 2, Room 204
26251317 Winewood Boulevard
2628Tallahassee, Florida 32399-0700
2631Richard A. Doran
2634General Counsel
2636Department of Children
2639and Family Services
2642Building 2, Room 204
26461317 Winewood Boulevard
2649Tallahassee, Florida 32399-0700
2652NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
2658All parties have the right to submit written exceptions within 15
2669days from the date of this Recommended Order. Any exceptions to
2680this Recommended Order should be filed with the agency that will
2691issue the Final Order in this case.
- Date
- Proceedings
- Date: 08/14/1998
- Proceedings: Final Order filed.
- Date: 02/18/1998
- Proceedings: Order Setting Time for Filing Proposed Recommended Orders sent out. (PRO`s due by 3/4/98)
- Date: 02/17/1998
- Proceedings: Agency`s Exhibit List filed.
- Date: 02/02/1998
- Proceedings: Exhibits filed.
- Date: 01/28/1998
- Proceedings: Proposed Finds of Fact and Conclusions of Law (Respondent) (filed via facsimile).
- Date: 01/14/1998
- Proceedings: CASE STATUS: Hearing Held.
- Date: 01/12/1998
- Proceedings: (Respondent) Notice of Filing Exhibits; Cover Letter (filed via facisimile) filed.
- Date: 01/07/1998
- Proceedings: (Respondent) Request for Official Recognition filed.
- Date: 11/26/1997
- Proceedings: Amended Notice of Hearing (as to location only) sent out. (hearing set for 1/14/98; 9:00am; Labelle)
- Date: 11/20/1997
- Proceedings: Notice of Hearing sent out. (hearing set for 1/14/98; 9:00am; Sarasota)
- Date: 10/27/1997
- Proceedings: Initial Order issued.
- Date: 10/22/1997
- Proceedings: Notice; Request for A 120 Hearing, letter form; Agency Action Letter filed.