97-004958 Department Of Children And Family Services vs. Mary Mitchell Status: Closed Recommended Order on Friday, June 5, 1998.

Summary: Department did not prove that foster mother inappropriately disciplined child in her care. Recommended that license be renewed, not revoked.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Petitioner, )

)

vs. ) Case No. 97-4958

)

MARY MITCHELL, )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on February 16, 1998, via video teleconference, with the

Petitioner and the Respondent appearing at Miami, Florida, before

Patricia Hart Malono, a duly-designated Administrative Law Judge

of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: William F. Stacey, Esquire

District 11 Legal Office

Department of Children and Family Services

401 Northwest 2nd Avenue, Suite N-1014

Miami, Florida 33128

For Respondent: Mary Mitchell, pro se

14920 Northwest 11th Avenue

Miami, Florida 33168

STATEMENT OF THE ISSUE

Whether the Respondent's foster home license should be

revoked for the reasons stated in the Petitioner's letter dated

September 19, 1997.

PRELIMINARY STATEMENT

In a letter dated September 19, 1997, the Department of

Children and Family Services ("Department") notified Mary L.

Mitchell that her foster care license would not be renewed "based

on evidence of use of inappropriate discipline method in your

home." Ms. Mitchell requested a hearing, and the Department

transmitted the case to the Division of Administrative Hearings

for assignment of an administrative law judge. By notice, a

formal hearing was held on February 16, 1998.

At the hearing, the Department presented the testimony of

the following witnesses: Walter F. Lambert, M.D., a pediatrician

and member of the Dade County Child Protection Team; Marguerita

Velasquez, a family service counselor with the Department;

Reynaldo Gonzalez, a children and family counselor for the

Department's Licensing Unit; and L. B., A. D.'s sister. 1/ The

Department's Exhibits 2, 3, and 4 were offered and received into

evidence. Ms. Mitchell testified in her own behalf; she did not

offer any exhibits into evidence.

L. B. is the ten-year-old sister of A. D., the five-year-old

foster child who was allegedly disciplined inappropriately by

Ms. Mitchell. At the hearing, counsel for the Department made a

motion requesting that Ms. Mitchell be excluded during L. B.'s

testimony. He cited as support Section 92.55(4), Florida

Statutes (1977), which authorizes a court to enter any order

necessary to protect a witness who is a child under the age of

sixteen years. According to counsel for the Department, although

L. B. had previously told him she was willing to testify at the

hearing, on the morning of the hearing, L. B. told him that she

did not want to testify if Ms. Mitchell was in the room. Counsel

for the Department did not suggest any less extreme remedy than

excluding Ms. Mitchell.

Counsel for the Department offered to elicit testimony from

L. B.'s foster care counselor, who is an employee of the

Department, regarding the degree of emotional trauma L. B. would

suffer if she were required to testify in Ms. Mitchell's

presence. He did not offer to call any person qualified to

render such an opinion, nor did he offer to present evidence on

this matter from a person not aligned with the Department in this

action.

L. B. was questioned in camera by the undersigned regarding

the reason she did not want to testify in front of Ms. Mitchell.

She stated that she was "uncomfortable" sitting in the same room

with Ms. Mitchell and that she did not know why but she would be

unable to speak in Ms. Mitchell's presence. L. B. stated that

she and her brother and sister no longer live in Ms. Mitchell's

home as foster children and that she does not have any contact

with her. The motion to exclude Ms. Mitchell during L. B.'s

testimony was denied upon consideration of the child's age and

her demeanor during the in camera questioning; of the fact that

the L. B. is not an alleged victim in this case but is presented

by the Department as a witness to Ms. Mitchell's alleged

inappropriate discipline of her brother, A. D.; and of the fact

that L. B. currently has no relationship with Ms. Mitchell and

did not manifest or express any fear of retribution from

Ms. Mitchell as a result of her testimony. 2/

A transcript of the proceedings was filed with the Division

of Administrative Hearings on March 26, 1998. The Department

timely filed a proposed recommended order, and Ms. Mitchell

timely filed a letter in which she set out her proposals. Both

submissions have been duly considered.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the

final hearing and on the entire record of this proceeding, the

following findings of fact are made:

1. The Department of Children and Family Services is the

state agency responsible for licensing and regulating family

foster homes in Florida. Section 409.175, Florida Statutes

(1997).

2. Mary Mitchell's home was licensed as a family foster

home from 1990 until her home was closed by the Department in

September 1997. Neither Ms. Mitchell nor her home has been the

subject of a complaint prior to that underlying the instant case.

3. In August 1997, A. D. and his sisters, C. D. and L. B.,

were foster children residing in Ms. Mitchell's home. At the

time, A. D. was five years old, C. D. was eight years old, and

L. B. was ten years old.

4. During a family therapy session at the Walden Community

Center, the children reported to a counselor that they were

beaten regularly by Ms. Mitchell. The counselor immediately

called the Department's Abuse Hotline, and a Protective

Investigator was dispatched to the home.

5. The counselor at the Walden Community Center also

notified the foster care counselor assigned by the Department to

monitor the children that the children had reported that A. D.

was beaten by Ms. Mitchell every time he wet his pants and that

L. B. and C. D. said that they were also beaten by Ms. Mitchell.

6. The Department's protective investigator took A. D.,

C. D., and L. B. for evaluation to the University of Miami Child

Protection Team. Walter F. Lambert, M.D., a member of the Child

Protection Team, was asked to perform a medical evaluation of the

children to determine if they had suffered any physical

punishment or injury.

7. A case worker in Dr. Lambert's office interviewed the

three children, and they all claimed that they were regularly

beaten with belts and switches by Ms. Mitchell and her son.

8. A physical examination of L. B. and C. D. revealed no

marks on their bodies.

9. A physical examination of A. D. revealed several red

marks, bruises, and scabbed over abrasions on his buttocks,

anterior upper thighs, and posterior thighs. These marks were

consistent with having been inflicted within several days of the

examination.

10. As part of his physical examination of A. D.,

Dr. Lambert interviewed him about the origin of the marks. A. D.

told Dr. Lambert that he was hit with a "twig from the holly

tree," but he did not identify the person who hit him. The marks

Dr. Lambert found on A. D.'s body were consistent with having

been inflicted with a switch taken from a tree.

11. The children were removed from Ms. Mitchell's home and

placed in another foster home. The children soon complained that

they were beaten in this new foster home, but no marks were found

on their bodies to corroborate these allegations. The children

are no longer in this foster home but have been placed in a new

foster home for therapeutic reasons.

12. Ms. Mitchell observed A. D.'s sisters whipping him with

switches and a belt on more than one occasion. Each time she saw

this behavior, she immediately stopped it.

13. The Department has presented no credible evidence to

establish that Ms. Mitchell punished A. D., or his sisters, by

beating them with a belt, switch, or any other instrument or that

she used any other form of corporal punishment to discipline

these children. 3/

14. The Department's letter to Ms. Mitchell notified her

that her foster care license renewal was denied. However, the

counselor in the Department's Licensing Unit responsible for

monitoring Ms. Mitchell's home testified that her license was

revoked prior to its expiration and her foster home closed as a

result of reports of child abuse. The counselor was present at

the meeting in which the decision regarding Ms. Mitchell's

license was made, and his testimony was uncontroverted.

CONCLUSIONS OF LAW

15. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and of

the parties thereto pursuant to Sections 120.569 and .57(1),

Florida Statutes (1997).

16. This case involves the revocation of Ms. Mitchell's

family foster home license. See Dubin v. Department of Business

Regulation , 262 So. 2d 273 (Fla. 1st DCA 1972)(holding that non-

renewal of annual license cannot serve as substitute for

revocation proceedings). Accordingly, the Department has the

burden of proving that she committed the offenses alleged. See

Florida Department of Transportation v. J. W. C. Co., Inc. ,

396 So. 2d 778, 788 (Fla. 1st DCA 1981)("'party asserting the

affirmative of an issue before an administrative tribunal'" has

the burden of proof).

17. A "license" for purposes of Section 409.175, Florida

Statutes (1997), is defined in Section 409.175(2) as follows:

(f) "License" means "license" as defined

in s. 120.52(9).[4/] 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.

By this definition, the legislature has clearly indicated its

intent that the "clear and convincing" standard of proof made

applicable in Ferris v. Turlington , 510 So. 2d 292, 294

(Fla. 1987), to the revocation of professional licenses is

inapplicable to the revocation of a family foster home license.

Therefore, the Department is required to prove the allegations in

this case by a preponderance of the evidence. See Florida

Department of Health and Rehabilitative Services v. Career

Service Commission , 289 So. 2d. 412, 415 (Fla. 4th DCA 1974)

(generally, burden of proof before an administrative agency is by

a preponderance of the evidence).

18. Rule 65C-13.010, Florida Administrative Code, defines

the "Substitute Care Parents' Role as a Team Member." Rule

65C-13.010 (1) sets forth the "Responsibilities of the Substitute

Parent to the Child," and provides in subsection (b)5.f. that

"[t]he substitute care parents must not use corporal punishment

of any kind."

19. The Department requires all substitute parents to sign

a Discipline Policy Agreement in which they acknowledge that they

have been informed of the Department's policy against "[h] itting

a child with ANY object. . . . [s]lapping, smacking, whipping,

washing mouth out with soap, or ANY other form of physical

discipline," and that they are aware that their family foster

home could be closed if they fail to comply with the policy.

Ms. Mitchell signed a copy of this agreement.

20. Based on the findings of fact herein, the Department

has failed to prove by any quantum of evidence that Ms. Mitchell

used an "inappropriate discipline method in her home."

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Department of Children and Family

Services enter a final order dismissing the charges against Mary

L. Mitchell and reinstating her family foster care license.

DONE AND ENTERED this 5th day of June, 1998, in Tallahassee,

Leon County, Florida.

___________________________________

PATRICIA HART MALONO

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 5th day of June, 1998.

ENDNOTES

1 / Prior to receiving L. B.'s testimony, inquiry was made

regarding her ability to observe, recollect and communicate facts

and regarding her sense of a moral duty to tell the truth. She

was found competent to testify.

2 / C. D., L. B.'s younger sister, was present at the hearing and

was identified as a witness for the Department, which represented

that C. D. had no problem testifying with Ms. Mitchell in the

room. However, the Department closed its case without calling

C. D. as a witness.

3 / L. B. was the only witness who offered direct testimony that

A. D. was beaten every time he wet his pants and that Ms.

Mitchell was the person who beat him. However, after having

carefully observed the demeanor of this witness and considered

her testimony in light of all of the evidence presented, this

testimony is rejected as not credible.

4 / Section 120.52(9), Florida Statutes (1997), provides:

"'License' means a franchise, permit, certification,

registration, charter, or similar form of authorization required

by law, but it does not include a license required primarily for

revenue purposes when issuance of the license is merely a

ministerial act."

COPIES FURNISHED:

William E. Stacey, Esquire

District 11 Legal Office

Department of Children and Family Services

401 Northwest 2nd Avenue, Suite N-1014

Miami, Florida 33128

Mary Mitchell, pro se

14920 Northwest 11th Avenue

Miami, Florida 33168

John S. Slye

General Counsel

Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Gregory D. Venz, Agency Clerk

Building 2, Room 204

1317 Winewood 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 filed with the agency that will

issue the final order in this case.