98-001609 Department Of Children And Family Services vs. Lois Kelly Status: Closed Recommended Order on Thursday, February 25, 1999.

Summary: Foster parent persisted in using corporal punishment on children, despite training, and maintained conditions in the home that are hazardous to young children. Revocation of license was recommended.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Petitioner, )

)

vs. ) Case No. 98-1609

)

LOIS KELLY, )

)

Respondent. )

___________________________________)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings

by its duly designated Administrative Law Judge, Mary Clark, held

a formal hearing in the above-styled case on August 19, 1998, in

Sanford, Florida.

APPEARANCES

For Petitioner: Carmen Muniz Sierra, Esquire

Department of Children and

Family Services

400 West Robinson Street

Orlando, Florida 32801

For Respondent: Timothy Straus, Esquire

Moyer and Straus

2627 West State Road 434

Longwood, Florida 32779

STATEMENT OF THE ISSUES

In a letter dated February 17, 1998, the Department of

Children and Family Services(DCFS) notified Lois Kelly that DCFS

intended to revoke her foster home license for five specified

reasons. Later, during the course of pre-hearing discovery, DCFS

narrowed the issues to three violations:

A substitute care parent must not

use corporal punishment of any kind.

65C-13.010(l)(b)5f, Florida

Administrative Code (FAC). You have used

corporal punishment to discipline the

children in your care. More

specifically, the children report that

you routinely slapped them and hit them

with a "switch."

. . .

The home and premises must be free

from objects, materials, and conditions

which constitute a danger to children.

65C-13.011(12)(b), FAC. The yard area

was full of trash, the boys' room smelled

of urine and there were roaches crawling

around at the time the licensing

representative visited the home.

. . .

A substitute care parent must not

punish children for bed-wetting for

errors during the toilet training

process. 65C-13.010(l)(b)5i, FAC.

Children in your care were punished by

corporal punishment for bed-wetting.

The issues in this proceeding are whether those violations

occurred and if so, whether they constitute bases for license

revocation.

PRELIMINARY STATEMENT

After Ms. Kelly's request for formal hearing and the

agency's referral to the Division of Administrative Hearings, the

hearing was scheduled by the assigned Administrative Law Judge,

Daniel Kilbride. At the request of counsel for Ms. Kelly, Judge

Kilbride continued the hearing once, but declined a second later

request for continuance. The hearing proceeding, as described

above, with the undersigned judge presiding.

At the hearing the agency presented these witnesses: K.W.

and L.D.(foster children), Juanita Warren White, and Karen

Norton. The agency had one exhibit marked for identification but

did not offer it into evidence. Ms. Kelly testified in her own

behalf and had two exhibits admitted into evidence.

At the close of the evidentiary hearing, the Administrative

Law Judge left open the record to permit the parties to provide

additional evidence. Respondent needed an opportunity to obtain

an order from circuit court requiring the agency to disclose the

whereabouts of a material witness whose identity was, according

to the agency, confidential pursuant to Chapter 39, Florida

Statutes.

Although the circuit court entered an agreed-upon order for

release of information on October 1, 1998, the parties later

informed the Administrative Law Judge that no further evidence

would be presented.

The Administrative Law Judge then established

January 11, 1999, as the deadline for proposed recommended

orders. This recommended order is based on consideration of

those proposals as well as the transcript and exhibits from the

August 19, 1998, hearing.

FINDINGS OF FACT

1. Respondent, Lois Kelly, was licensed as a foster home by

the Department of Health and Rehabilitation Services (HRS) on

September 29, 1995. She was a working, single woman who had

raised one child, now an adult son, who lives on his own.

2. HRS was the predecessor to the agency now known as the

Department of Children and Family Services, the Petitioner in

this proceeding.

3. Ms. Kelly's foster home license was for three children;

the maximum number of children under any foster home license was

five. However, at various times during the two years that she

was licensed, Ms. Kelly cared for four, six, and (for one

weekend) eight children placed with her by HRS foster care

workers.

4. Juanita Warren White was assigned to be Ms. Kelly's

foster home licensing representative in 1996. Ms. White visited

the Kelly home three times: July 11, 1996; August 1, 1996; and

September 24, 1996.

5. On her first visit Ms. White noted wet carpet and a

strong smell of urine. There was wet carpet hanging outside.

The toilet in the children's bathroom had overflowed after one of

the boys hid a toy in the commode. In addition, there was an

appearance of general disarray, including garbage in the garage

where the children played.

6. By the September visit, Ms. Kelly had corrected

the series of items noted as problems by Ms. White. Ms. Kelly

was relicensed for another year.

7. Karen Norton was assigned as Ms. Kelly's licensing

representative in 1997. After one unsuccessful attempt when

Ms. Kelly was not home, Ms. Norton's first home visit was

April 11, 1997.

8. On this date, there were four foster children residing

with Ms. Kelly: J. and B., pre-school toddlers; K., 8 years old;

and H.J., 9 years old. The bedroom shared by the two young boys

was cluttered with toys and clothes; a roach was crawling up the

wall. In the bedroom shared by the older boys, there was a

strong odor of urine. One of the boys was a bed-wetter.

9. Ms. Norton also observed a bleach bottle stored on the

kitchen floor within reach of the children. She found the garage

had a seating area with a sofa and TV set that was turned on.

The garage included tools and yard equipment. She observed trash

and an old grill/smoker in the backyard and a discarded

refrigerator turned to the wall with a make-shift basketball hoop

set up in the refrigerator coils.

10. After completing her inspection, Ms. Norton advised

Ms. Kelly that the trash would have to be picked up, the bleach

stored properly, the refrigerator and cooker disposed of, the

urine cleaned up, and a bug extermination scheduled.

11. Ms. Norton returned on May 6, 1997, for an unscheduled

visit.

12. The trash was gone, but the refrigerator remained and

Ms. Kelly said it would be removed within a week. There was no

urine odor in the boys' bedroom and Ms. Kelly told her that she

required the bed-wetting child to clean his bed with bleach

water. Ms. Norton explained that it was inappropriate and

dangerous to have a child use bleach for cleaning. Ms. Norton

was concerned about hazardous conditions in the Kelly home,

including the obvious use of the garage as a play-room.

13. Some time between May and September 1997, HRS learned

that Ms. Kelly was using corporal punishment on her foster

children. The children were removed from her home and after

being told that she would be charged with child abuse, Ms. Kelly

agreed to give up her license; no children have been placed in

her home since September 1997.

14. At hearing, Ms. Kelly confirmed that she would not have

relinquished her license without the threat and that she still

wants to be a foster home parent. The agency has proceeded with

a license revocation and provided notice and opportunity for a

hearing in its letter dated February 17, 1998.

15. Two children, former foster child residents in

Ms. Kelly's home, testified at hearing: L.D.-age 11; and C.W.-age

15. The testimony of both children was credible regarding

discipline used by Ms. Kelly.

16. Ms. Kelly disciplined two pre-school aged boys by

switching them on their legs or hands with a switch from the

yard. The 3 year-old cried; the 5-year old did not cry.

Punishment occurred when the boys broke something belonging to

Ms. Kelly.

17. On another occasion Ms. Kelly came home and found that

L.D. had been tussling with a 5-year old boy and had ripped the

boy's underwear, which L.D. claimed was his. Ms. Kelly took L.D.

into the hall outside the bedroom and swatted him on his arms,

legs and waist with her open hand. She continued hitting him

when he was on the floor. He was afraid and cried.

18. Ms. Kelly also spanked K.H. on at least two occasions

for wetting his bed. She used her hand to hit him. She also

continued to require him to clean up the urine with a rag and

bleach.

19. Ms. Kelly was trained and given hand-outs regarding

appropriate discipline prior to her licensure as a foster home.

She understood that she was never permitted to strike the

children or use any form of corporal punishment.

20. Corporal punishment is harmful to foster children even

when it is not excessive, as many foster children have come from

abusive environments.

CONCLUSIONS OF LAW

21. The Division of Administrative hearings has

jurisdiction in this proceeding pursuant to Sections 120.569 and

120.57(1), Florida Statutes.

22. Sections 409.175, Florida Statutes, provides, in

pertinent part:

409.175 Licensure of family foster homes,

residential child-caring agencies, and

child-placing agencies.--

(1)(a) The purpose of this section is to

protect the health, safety, and well-

being of all children in the state who

are cared for by family foster homes,

residential child-caring agencies, and

child-placing agencies by providing for

the establishment of licensing

requirements for such homes and agencies

and providing procedures to determine

adherence to these requirements

. . .

(4)(a) The department shall adopt and

amend licensing rules for family foster

homes, residential child-caring agencies,

and child-placing agencies. The

department may also adopt rules relating

to the screening requirements for summer

day camps and summer 24-hour camps. The

requirements for licensure and operation

of family foster homes, residential

child-caring agencies, and child-placing

agencies shall include:

1. The operation, conduct, and

maintenance of these homes and agencies

and the responsibility which they assume

for children served and the evidence of

need for that service.

. . .

(8)(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.

23. Rule 65C-13.010, Florida Administrative Code,

unequivocally prohibits the discipline employed by Ms. Kelly:

(1) Responsibilities of the Substitute Parent to the

child.

. . .

5. Discipline

a. the substitute care parent must

discipline children with kindness,

consistency, and understanding, and with

the purpose of helping the child develop

discipline with self-control.

. . .

f. The substitute care parent must not

use corporal punishment of any kind.

. . .

i. The substitute care parent must not

punish children for bed wetting or errors

which occur during the toilet training

process.

24. Rule 65C-13.011, Florida Administrative Code, requires

that the home and premises must be free from objects, materials,

and conditions which constitute a danger to children.

25. Whether the standard of proof is preponderance of the

evidence or the stricter standard of clear and convincing

evidence (see Section 120.57(1)(h), Florida Statutes) the agency

has met its burden of proving that Ms. Kelly's home does not meet

the requirements of Section 409.175, Florida Statutes, and

relevant regulations.

26. Standing alone, the physical conditions of the home may

not be sufficient basis to recommend revocation, but Ms. Kelly's

use of corporal punishment on several children and on several

occasions is evidence of her unwillingness or inability to

conform to essential requirements for licensure. Her counsel's

suggestion that the agency is somehow estopped from revoking her

license because it placed too many children in the home is

without any authority. Moreover, once the agency learned of the

corporal punishment, it removed all of the children.

RECOMMENDATION

Based on the foregoing, it is hereby,

RECOMMENDED: that the agency issue its final order revoking

the foster home license of Lois Kelly.

DONE AND ENTERED this 25th day of February, 1999, in

Tallahassee, Leon County, Florida.

___________________________________

MARY CLARK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 25th day of February, 1999.

COPIES FURNISHED:

Timothy Straus, Esquire

Moyer and Straus

2627 West State Road 434

Longwood, Florida 32779

Carmen Muniz Sierra, Esquire

Department of Children

and Family Services

400 West Robinson Street

Orlando, Florida 32801

Gregory D. Venz, Agency Clerk

Department of Children

and Family Services

Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

John S. Slye, General Counsel

Department of Children

and Family Services

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.