98-002896 Department Of Children And Family Services vs. Donna Vermeulen Status: Closed Recommended Order on Monday, March 15, 1999.

Summary: Application to renew foster home license should be denied where applicant has failed to properly care for foster children.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Petitioner, )

)

vs. ) Case No. 98-2896

)

DONNA VERMEULEN, )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this

case on October 14, 1998, in Miami, Florida, before

Administrative Law Judge Michael M. Parrish, of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Rosemarie Rinaldi, Esquire

Department of Children and Family Services

401 Northwest Second Avenue, Suite N-1014

Miami, Florida 33128

For Respondent: Oscar Estevez, Esquire

1835 West Flagler Street, Suite 201

Miami, Florida 33135

STATEMENT OF THE ISSUES

The basic issue in this case is whether the Respondent,

Donna Vermeulen, is eligible to be relicensed as a family foster

home.

PRELIMINARY STATEMENT

By letter dated November 24, 1997, the Department of

Children and Family Services ( DCFS) advised the Respondent that

the DCFS was not going to renew the Respondent's family foster

home license. The letter specified several reasons for the

proposed denial of license renewal. Thereafter, the Respondent

requested an evidentiary hearing. On June 29, 1998, the DCFS

referred the matter to the Division of Administrative Hearings

for assignment to an administrative law judge. At the final

hearing on October 14, 1998, the DCFS presented the testimony of

eight witnesses and offered twelve exhibits, all of which were

received in evidence. 1 The Respondent testified on her own

behalf and presented the testimony of one additional witness.

The Respondent also offered one composite exhibit, which was

received in evidence.

At the conclusion of the hearing, the parties were allowed

30 days from the date of the hearing within which to file their

respective proposed recommended orders. Thereafter, on motion by

the DCFS, the deadline was extended to December 1, 1998, for all

parties. The DCFS filed a timely proposed recommended order

containing proposed findings of fact and conclusions of law. As

of the date of this Recommended Order, the Respondent has not

filed any post-hearing documents.

FINDINGS OF FACT

1. The Respondent was licensed as a family foster home in

Dade County, Florida, for approximately 19 years. The Respondent

had received all of the training that was required for such a

license.

2. In 1997, Rosemary Bridges was a foster care counselor

employed by the DCFS. In June of that year, Ms. Bridges was

assigned to be the foster care counselor for three of the four

foster children who were living with the Respondent at that time.

Shortly after her assignment as foster care counselor for those

children, Ms. Bridges made her first visit to the Respondent's

home to check on the status of the children.

3. On her fist visit to the Respondent's home, Ms. Bridges

found the home to be untidy and unclean. There were clothes

everywhere, dishes piled up, and no linen on the children's beds.

The children all looked unkempt. The hair was not combed on any

of the children. Ms. Bridges thought the general condition of

the Respondent's home was potentially hazardous to the health of

the foster children and she considered the possibility of

removing the foster children from the home.

4. On the day of Ms. Bridges' first visit, a therapist was

also present. Ms. Bridges and the therapist discussed the

situation with the Respondent. On that day the Respondent's arm

was in a cast, and the Respondent explained that, because she had

a broken arm, she was not able to take care of the house and the

foster children as well as she usually did. The foster children

had been with the Respondent for a long time, and the Respondent

wanted them to continue to stay with her. Following the

discussion with the Respondent, Ms. Bridges decided not to remove

the foster children from the Respondent's home. Instead, Ms.

Bridges made arrangements with the Children's Home Society for

the Respondent to receive services for herself and for the foster

children.

5. Ms. Bridges returned to the Respondent's home a month

later. The condition of the home was the same as it was during

the June visit. The foster children were again unkempt and

unclean. At the time of the visit, Ms. Bridges was also

concerned about reports of inappropriate activities involving the

foster children and one of the Respondent's two sons. 2

Ms. Bridges and the children's therapist continued to work with

the Respondent in an effort to improve the situation in the

Respondent's home.

6. Sara Leidtke is a mental health counselor who works

primarily with children in foster homes, doing intensive on-site

therapy. In February of 1997, Ms. Leidtke began providing

therapy to three of the foster children in the Respondent's home.

Ms. Leidtke continued to provide therapy twice a week to those

children while they were living with the Respondent. 3 All three

of the foster children were supposed to be taking medication

prescribed by a physician at the clinic where Ms. Leidtke worked.

The medication was to treat hyperactivity and depression. One of

the foster children was having nightly episodes of bed-wetting.

On numerous occasions Ms. Leidtke recommended that the Respondent

take that child to the enuresis clinic for treatment. The same

recommendation was made by the physician who was treating the

child's psychological problems. The Respondent never took that

foster child to the enuresis clinic.

7. From February of 1997 through August of 1997,

Ms. Leidtke was concerned about the personal hygiene of the three

foster children to whom she was providing therapy services. Ms.

Leidtke described her concerns in the following words: 4

All three of the children exhibited poor

hygiene while in the Vermeulen home. Their

clothes were often soiled, their hair dirty,

and they were often unbathed with a strong

body order. This therapist worked with them

on this and gave Mrs. Vermeulen a hygiene

checklist to utilize with them. The children

spent a great deal of time working on this

during therapy, but this therapist had

difficulty getting Mrs. Vermeulen to follow

through with checklists on days that therapy

did not take place. On a number of

occasions, the children stated that they were

not able to attend to their hygiene because

they did not have toothbrushes or other

personal items. [J.] stated numerous times

that she did not ever wash her hair, and that

she did not use deodorant/antiperspirant

because the family shared one roll-on

deodorant and she did not want to use it or

could not find it. When asked about these

difficulties, Mrs. Vermeulen stated that the

children were lying and that she was waiting

on a check to buy the items that they needed.

On two separate occasions, this therapist

arranged for a PsychSolutions Activities

Coordinator to come to the home to do the

children's hair, but Mrs. Vermeulen canceled

both appointments.

8. In August of 1997, Ms. Bridges made another visit to the

Respondent's home. Again, the condition of the home was the same

as it had been on the two prior visits. Again, the foster

children were unkempt and unclean. Ms. Bridges decided,

primarily because of the lack of improvement in the condition of

the home and the lack of improvement in the care of the foster

children, that the foster children should be relocated to another

foster home. In the course of making arrangements for the

relocation, Ms. Bridges discovered a several month supply of

prescription medicines for the three foster children. The amount

of the prescription medicines in the home confirmed that the

foster children had not been taking the medicines with the

frequency prescribed by the physician.

9. On August 29, 1998, when Ms. Leidtke arrived at the

Respondent's home, she found that the Respondent's other son,

M. V., was sitting at the Respondent's home visiting with the

Respondent. M. V. is the Respondent's adopted son. In August of

1997, M. V. was 18 or 19 years old. On that day, M. V. had

apparently escaped from a residential treatment program, where he

had been confined for approximately four years. M. V. was being

treated because, approximately four years earlier, he had

sexually assaulted one of the Respondent's foster children, as

well as the Respondent's adopted daughter. The foster child who

had been sexually assaulted by M. V. was still living in the

Respondent's home. M. V.'s presence in the home was very

upsetting to that child. Later the same day, the police were

called and the police returned M. V. to the treatment facility

from which he had escaped.

10. On August 29, 1997, the DCFS removed the foster

children from the Respondent's home and placed them in another

foster home.

CONCLUSIONS OF LAW

11. The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

proceeding. Section 120.57(1), Florida Statutes.

12. As an applicant for license renewal, the Respondent in

this case, Donna Vermeulen, bears the burden of proving

entitlement to the license she seeks to have renewed. Florida

Department of Transportation v. J. W. C. Co., Inc. , 396 So. 2d

778, 788 (Fla. 1st DCA 1981). The applicant must show by a

preponderance of the evidence that she meets all of the relevant

statutory and rule criteria to satisfy this burden. 5

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

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

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

in s. 120.52(9). 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.

14. Subsection (4) of Section 409.175, Florida Statutes,

authorizes the DCFS to adopt rules for foster care homes. Such

rules have been promulgated and now appear in Chapter 65C-13,

Florida Administrative Code. Rule 65C-13.010, Florida

Administrative Code, titled Substitute Care Parents' Role as a

Team Member, includes the following relevant provisions:

(1) Responsibilities of the Substitute

Parent to the Child.

* * *

(b) Family Care Activities.

1. Daily living tasks.

a. The substitute care parents are

expected to provide structure and daily

activities designed to promote the individual

physical, social, intellectual, spiritual,

and emotional development of the children in

their home.

* * *

6. Health Care.

* * *

b. The substitute care parents are

expected to transport children for medical,

dental or other appointments which may be

needed.

* * *

d. The substitute care parents must

immediately report to the department any

serious changes in the health or mental

health of a child.

15. Rule 65C-13.011, Florida Administrative Code, titled

Minimum Standards for Licensure of Family Foster Homes, Family

Emergency Shelter Homes and Family Group Homes, contains the

following relevant provisions:

(11) Physical Environment.

* * *

(b) The home and premises must be free

from objects, materials, and conditions which

constitute a danger to children.

* * *

(13) Interior environment.

* * *

(g) The home must be clean and free of

hazards to the health and physical well-being

of the family.

* * *

(17) Medical Care. Substitute care

parents must be able to understand and

willing to carry out home medical care

prescribed by a licensed physician.

Medication should not be given without first

consulting the physician. . . .

16. Section 409.175(8), Florida Statutes, reads as follows:

(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.

3. Noncompliance with the requirements for

good moral character as specified in

paragraph (4)(a).

4. Failure to dismiss personnel found in

noncompliance with requirements for good

moral character.

17. The facts in this case establish that, on more than one

occasion, the Respondent engaged in intentional or negligent

conduct materially affecting the health and safety of foster

children in her home. The facts in this case also establish

that, on more than one occasion, the Respondent engaged in

conduct that violated one or more of the rule provisions, quoted

above, promulgated pursuant to Section 409.175, Florida Statutes.

In view of the nature of the conduct described in the findings of

fact, the Respondent is not an appropriate person to be trusted

with the care of foster children, and her application for renewal

of her family foster home license should be denied.

RECOMMENDATION

Based on all of the foregoing, it is RECOMMENDED that a

final order be issued in this case denying the Respondent's

application for renewal of her family foster home license.

DONE AND ENTERED this 15th day of March, 1999, in

Tallahassee, Leon County, Florida.

___________________________________

MICHAEL M. PARRISH

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 15th day of March, 1999.

ENDNOTES

1/ The Petitioner's twelve exhibits received in evidence are

numbered 1 through 7 and 9 through 13. There is no Petitioner's

Exhibit 8.

2/ The foster children's' therapist had reported to Ms. Bridges

that the foster children had told her about an incident at the

home of the Respondent's son, B. V. The children had told the

therapist that B. V. had forced the children to smoke cigarettes

and that B. V. and B. V.'s girlfriend had urinated and defecated

on the floor in the presence of the foster children. These

allegations were reported to the abuse hotline. The Respondent

denied that her son, B. V., had ever engaged in such conduct.

There is insufficient evidence in the record of this case to

determine where the incident described by the children actually

happened.

3/ Ms. Leidtke also continued to provide therapy to the children

after they were moved to a new foster home.

4/ See Petitioner's Exhibit 3, second page, second full

paragraph.

5/ In view of the nature and the posture of this case, Donna

Vermeulen should have been designated as the Petitioner in this

case, and the DCFS should have been designated as the Respondent.

Regardless of such designations, in a case of this nature, unlike

a case involving the revocation of a license, the burden of proof

rests with the applicant.

COPIES FURNISHED:

Rosemarie Rinaldi, Esquire

Department of Children and Family Services

401 Northwest Second Avenue

Suite N-1014

Miami, Florida 33128

Oscar Estevez, Esquire

1835 West Flagler Street

Suite 201

Miami, Florida 33135

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.