98-003865 Department Of Children And Family Services vs. Lucille Sims Status: Closed Recommended Order on Monday, March 1, 1999.

Summary: Department of Children and Family Services has burden of proof in case seeking revocation of foster home license. Evidence sufficient to prove basis for revocation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Petitioner, )

)

vs. ) Case No. 98-3865

)

LUCILLE SIMS, )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on

November 17, 1998, in West Palm Beach, Florida, before Michael M.

Parrish, an Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Colleen Farnsworth, Esquire

Department of Children and Family Services

111 South Sapodilla Avenue

West Palm Beach, Florida 33401

For Respondent: No appearance at hearing

STATEMENT OF THE ISSUE

The issue in this case is whether the Respondent's license

to provide foster care should be revoked for any of the reasons

set forth in the Department's revocation letter dated July 23,

1998.

PRELIMINARY STATEMENT

By letter dated July 23, 1998, the Department of Children

and Family Services (DCFS) notified the Respondent of its intent

to revoke the Respondent's license to provide foster care.

Grounds for the proposed revocation were specified in the notice.

The Respondent timely requested an evidentiary hearing, and the

matter was forwarded to the Division of Administrative Hearings

for assignment to an Administrative Law Judge. On September 22,

1998, a written Notice of Hearing was mailed to all parties

scheduling this case for final hearing in West Palm Beach on

November 17, 1998, beginning at 10:00 a.m. Events at hearing and

shortly thereafter are described as follows in a post-hearing

order issued on December 2, 1998:

The final hearing in this case was held on

November 17, 1998, in West Palm Beach,

Florida. All parties were provided with

advance written notice of the date, time, and

location of the hearing. The hearing was

scheduled to begin at 10:00 a.m.

Petitioner's counsel and witnesses were

present at the scheduled time and place. The

Respondent was not present. The commencement

of the hearing was postponed until 10:30 a.m.

due to the absence of the Respondent. At

10:30 a.m. the hearing commenced and the

undersigned received evidence offered by the

Petitioner. The hearing concluded at

approximately 11:45 a.m. The Respondent

never appeared at the hearing.

At approximately 3:45 p.m. on November 17,

1998, the Respondent called the undersigned's

secretary. The Respondent stated that she

had not been able to find the hearing

location because she left her copy of the

Notice of Hearing at home. The Respondent

also stated that she wanted to speak to the

undersigned about the matter.

A telephone conference was scheduled for

November 30, 1998. Both parties participated

in the conference. During the course of the

conference, the Respondent requested that the

hearing be reconvened. The Petitioner

objected to that request, primarily on the

grounds that the Respondent had not shown

good cause for her failure to appear at the

hearing and that reconvening the hearing

would burden the Petitioner unreasonably by

requiring it to spend additional time and

money to retry the case.

The Respondent has not shown good cause for

her failure to attend the hearing. The

Respondent has also failed to identify any

evidence she wishes to offer that could

reasonably be expected to make a material

difference in the outcome of the hearing.

Accordingly, her request to reconvene the

hearing will be denied.

In an effort to address some of the Respondent's concerns,

the order of December 2, 1998, that denied the request to

reconvene the hearing also required the Petitioner to furnish the

Respondent with a free copy of the transcript of the hearing.

The order also provided that all parties would be allowed twenty

days from the date the transcript was furnished to the Respondent

within which to file their respective proposed recommended

orders.

A copy of the hearing transcript was furnished to the

Respondent on January 4, 1999. On January 25, 1999, the

Petitioner filed a 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. At all times material, the Respondent was licensed by

the Petitioner to operate a foster home.

2. In conjunction with the placement of foster children in

her home, the Respondent signed an Agreement to Provide

substitute Care for Dependent Children. In that document, the

Respondent agreed to the following conditions, among others:

2 - We are fully and directly responsible to

the Department for the care of the child.

* * *

5 - We will not permit the removal of the

child from our home, except by an authorized

representative of the Department or by

instruction of such representative.

6 - We will not give the child into the care

or physical custody of any other person(s),

including the natural parent(s), without the

consent of a representative of the

Department.

* * *

9 - We will accept dependent children into

our home for care only from the Department

and will make no plans for boarding other

children or adults.

* * *

11 - We will notify the Department

immediately of any change in our address,

employment, living arrangements, family

composition, or law enforcement involvement.

* * *

15 - We will comply with all requirements

for a licensed substitute care home as

prescribed by the Department.

3. On May 1, 1997, a family services counselor visited the

Respondent's home on a routine visit to check on the status of

one of the foster children in the Respondent's home. During that

visit the counselor observed various hazardous and unsanitary

conditions in the home. Several upstairs windows were open. The

windows had no screens or other barriers to prevent a child from

falling out the window. There was a foul stench in the house.

Contributing to the stench were numerous plates of decaying food

randomly scattered throughout the home. There was a light

fixture with a bare bulb and no light shade.

4. On May 1, 1997, the child that the counselor was

visiting was seven years-old. The counselor was concerned, for

several reasons, about the quality of care the child was

receiving. The child was very dirty, and did not appear to have

been bathed recently. The child also had a large, obvious

ringworm. The counselor asked the Respondent if the child had

been taken to a doctor for treatment of the ringworm. The

Respondent admitted that she had not taken the child to the

doctor and then stated some illogical and frivolous reasons for

her failure to seek medical attention for the foster child.

5. During the May 1, 1997, visit, the seven year-old foster

child told the counselor that the children in the neighborhood

hated him. When asked for details, the foster child described an

incident during which, while he was outside, a group of

neighborhood children removed all of the foster child's clothing

and then urinated on him. When questioned about this incident,

the Respondent admitted that she had witnessed the incident. The

Respondent's only excuse for allowing the incident to occur was

that she had told the foster child not to go outside and he

disobeyed her and went outside without permission.

6. On various unspecified occasions during the latter part

of 1997 and the first three months of 1998, the Respondent's

minor grandson, who sometimes lived with the Respondent and

sometimes lived with his mother, engaged in sexual intercourse

with one of the female minor foster children in the Respondent's

home. The Respondent was aware that her grandson had engaged in

sexual intercourse with one of her foster children. The

Respondent made ineffectual efforts to prevent her grandson from

having sexual intercourse with the female foster child. At least

three months after discovering this conduct, the Respondent

advised personnel of the DCFS for the first time that her

grandson had been having sexual intercourse with one of the

foster children in the Respondent's home.

7. Around mid-afternoon on January 9, 1998, a police office

of the South Bay Police Department went to the Respondent's home

at the request of a family services counselor of the DCFS, who

was making a routine visit to check on the status of two of the

foster children living at that home. On that afternoon, the only

adults present were the counselor from DCFS and the police

officer. Two of the Respondent's foster children were home

without any adult supervision. Those two foster children were

thirteen and fifteen years of age, respectively.

8. On January 9, 1998, the Respondent was on a trip outside

the State of Florida. She had been gone for at least two days

and was not expected to return for several more days. She had

one of her foster children with her on the out-of-state trip.

The Respondent had not advised the DCFS that she was taking a

foster child out of the State of Florida, nor did she have

permission from anyone at DCFS to take the foster child out of

the State of Florida.

9. Similarly, the Respondent had not advised the DCFS that,

while on her out-of-state trip, she was leaving two of her foster

children in her home, supposedly under the car and supervision of

her adult brother, Leroy Ball. Mr. Ball had not been approved by

anyone at DCFS as a temporary substitute caregiver for any of the

foster children living with the Respondent.

10. On January 9, 1998, the Respondent's home presented a

variety of hazardous and unsanitary conditions. These conditions

are perhaps best described in the words of the police officer who

was present that day: 1

Upon arriving at the scene I found that the

children were left abandon[ed] completely.

There was no adult supervision whatsoever. I

found the interior of the house was in

disarray. There were numerous unsanitary

conditions within the household, human

defecation, rotting food, open garbage cans,

knives on the floor, tools, equipment,

alcoholic containers that were half empty,

strewn all over the house.

* * *

The baby training potty was right at the

entry to the kitchen in the living room and

it had urine, mold growing on top of the

water and looked like defecation inside the

bowl itself.

* * *

There was an overabundance of garbage and

clothes. It was just everywhere. It wasn't

just one place. It wasn't a bag here, a bag

there, piece here, piece there. It was

strewn everywhere on every piece of

furniture, on the floor. Within every two

feet there was garbage of some sort on the

floor as if someone had thrown bags of

garbage. It was just thrown all over the

house.

* * *

I did look in the kitchen and I took

photographs which I submitted and I found

food that was half-cooked and half raw

sitting there decaying, which was moldy and

just rotting in the kitchen.

* * *

[Referring to a photograph] That was the

upstairs bathroom. There was defecation in

the water in the toilet. I was unaware if

water was actually working in the residence

at that time. It didn't appear to me that it

was. I would've assumed that somebody

would've flushed the toilet if it hadn't

(sic) been. It seemed like it had been that

way for several days.

11. The two foster children who were left in the

Respondent's home while she went on an out-of-state trip did not

have a key to the house. Accordingly, they were unable to lock

the house.

12. On January 9, 1998, the police officer and the family

services counselor interviewed the two foster children.

Information provided by the children indicated that the

Respondent had been out-of-town for two days and that a man named

Leroy Ball was supposed to be taking care of them, but that they

had not had any adult supervision during the past two days.

Efforts to locate Leroy Ball were unsuccessful. Due to the lack

of adult supervision and due to the hazardous and unsanitary

condition of the home, the police officer and the family services

counselor removed the two foster children from the Respondent's

home. The police officer took one of the foster children (for

whom a warrant was outstanding) to the police station, where the

child was fed and then transported to a juvenile detention

facility. The family services counselor took the other foster

child and delivered the child to another foster home.

13. Later in the afternoon of January 9, 1998, a child

protective investigator went to the Respondent's home. The only

person present at that time was Leroy Ball, an adult man, who is

the Respondent's brother. During an interview with the

investigator, Leroy Ball explained that his sister, the

Respondent, had to go out of town to a funeral and that during

her absence he was supposed to care for the two foster children

who had earlier that day been found in the home without any adult

supervision. Mr. Ball also explained that he worked each day

from approximately 5:00 a.m. until approximately 5:00 p.m. At

the time of the interview, Mr. Ball did not know the whereabouts

of the two foster children he was supposed to be caring for.

14. Several days later, on January 13, 1998, the child

protective investigator interviewed the Respondent. During that

interview the Respondent admitted that she had made an out-of-

state trip with one of her foster children, and also admitted

that she had left two of the foster children at her home, with

the understanding that her brother, Mr. Ball, would be

supervising them. In subsequent interviews with Department

personnel, the Respondent blamed the unsanitary conditions in her

home on the two children she had left there and on her brother's

failure to do what he was supposed to do.

15. The DCFS never consented to Mr. Ball being placed in a

temporary role supervising any of the foster children who lived

with the Respondent.

16. While licensed to operate a foster home, the Respondent

was required to keep the DCFS informed as to who was living in

the Respondent's home. While so licensed, there were several

occasions on which the Respondent failed to report changes as to

who was living in her home. On at least one occasion the

Respondent provided the DCFS with false information about who was

living in her home.

CONCLUSIONS OF LAW

17. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and the

parties thereto, pursuant to Sections 120.569 and 120.57(1),

Florida Statutes.

18. This case involves the revocation of the Respondent'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). 2

19. 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.

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); Section 120.57(1)(h), Florida Statutes. 3

20. 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.

* * *

2. Food and Nutrition.

a. The substitute care parents must

provide nutritionally balanced meals and age

appropriate snacks.

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.

* * *

(4) Responsibilities of the Substitute

Care Parents to the Department.

(g) The substitute care parents must

notify the department regarding changes which

affect the life and circumstances of the

shelter or foster family.

(h) The substitute care parents must

notify the department at least two weeks in

advance of vacations in which the child will

be participating.

21. 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. . . .

22. Rule 65C-13.015, Florida Administrative Code, titled

Prevention and Management of Sexual Assault in Foster Care,

includes the following relevant provisions:

(2) The following safeguards are to be

used by the department on a routine basis:

* * *

(c) Within 10 working days of an incident

of sexual assault, seduction or exploitation,

the perpetrator and the victim must be

referred for assessment by a mental health

provider to determine the need for therapy.

* * *

(4) The following reporting procedures are

required when a child-on-child sexual

assault, seduction or exploitation incident

is alleged:

(a) Whoever first becomes aware of the

situation is required to report the

information to the FPSS Abuse Registry if it

is suspected that the alleged victim lacks

supervision or has been neglected or abused

by the caretaker.

(b) If no report is taken by the abuse

registry, all information pertinent to the

child-on-child sexual incident will be

transmitted to the OPA for protective

investigations in the appropriate county as a

request for services.

(c) The OPA for protective investigations

will share all information with their

counterpart OPA for foster care to ensure

that a service worker will visit the home or

facility, assess the situation and provide

the follow-up services needed.

23. 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.

24. 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 violations described in the findings

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

trusted with the care of foster children, and her license should

be revoked.

RECOMMENDATION

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

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

foster home license.

DONE AND ENTERED this 1st 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 1st day of March, 1999.

ENDNOTES

1/ The quoted testimony is from pages 7 through 12 of the

transcript of the final hearing. The police officer's testimony

was also graphically corroborated by photographs he took that day

in the Respondent's home.

2/ This proceeding was not initiated by the Respondent's request

for an evidentiary hearing. Instead, it was initiated by the

issuance of the notice that the DCFS intended to revoke the

Respondent's license. That notice is, as is must be, the

functional equivalent of the "administrative complaint" required

by Section 120.60(5), Florida Statutes, as a necessary first step

in the revocation "of any license." Such a charging document

typically asserts facts which the agency believes entitles the

agency to the relief it seeks; in this case, the revocation of the

Respondent's license. By filing such a charging document, an

agency asserts the affirmative of the facts set forth in the

document and, in the normal course of events, is the party that

bears the burden of proving those facts if they are disputed. In

some of its final orders in cases involving similar issues, the

DFCS has taken the view that it does not bear the burden of proof

in foster home license revocation cases. See Sylvia and Robert

Mitchell v. Department of Children and Family Services , DOAH Case

No. 97-5477, DCFS rendition No. DCF-98-280-FO (Final Order of

Sept. 2, 1998); Mary Mitchell v. Department of Children and Family

Services , DOAH Case No. 97-4958, DCFS rendition No. DCF-98-336-

Florida Statutes (Final Order Dec. 2, 1998). In the cited final

orders, the DCFS has attempted to transmogrify license revocation

cases into license denial cases, relying in part on Section

409.175(2)(f), Florida Statutes, and in part on a strained

interpretation of Osbourne Stern (670 So. 2d 932). Neither the

cited statutory provision nor the cited court decision provide a

logical basis for removing the burden of proof from the agency and

placing it on the licensee in a license revocation proceeding.

3/ Section 120.57(1)(h), Florida Statutes, states: "Findings of

fact shall be based upon a preponderance of the evidence, except

in penal or licensure disciplinary proceedings or except as

otherwise provided by statute. . . ."

COPIES FURNISHED:

Colleen Farnsworth, Esquire

Department of Children and Family Services

111 South Sapodilla Avenue

West Palm Beach, Florida 33401

Ms. Lucille Sims

Post Office Box 752

South Bay, Florida 33493

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.