98-004169 Gary Burford vs. Department Of Children And Family Services Status: Closed Recommended Order on Monday, July 26, 1999.

Summary: There was sufficient evidence to show a violation of Rule 65C-13.011(13)(d)(f), Florida Administrative Code. However, the circumstances required mitigating the penalty.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Petitioner, )

)

vs. ) Case No. 98-4169

)

GARY BURFORD, )

)

Respondent. )

____________________________________)

RECOMMENDED ORDER

Upon due notice, William R. Cave, an Administrative Law

Judge for the Division of Administrative Hearings, held a formal

hearing in this matter on April 27, 1999, in Lakeland, Florida.

APPEARANCES

For Petitioner: Jack E. Farley, Esquire

Department of Children and

Family Services

4720 Old Highway 37

Lakeland, Florida 33813-2030

For Respondent: Thomas D. Wilson, Esquire

Law Office of Gregory Ruster

1525 South Florida Avenue

Suite 3

Lakeland, Florida 33803

STATEMENT OF THE ISSUES

Did Respondent violate Section 409.175(8)(b)1, Florida

Statutes, or Rule 65C-13.011(d) and (f)1, Florida Administrative

Code, and, if so, should Respondent's license as a foster home be

revoked?

PRELIMINARY STATEMENT

By letter dated August 17, 1998, the Department of Children

and Family Services (Department) notified Respondent that his

license as a foster home was being revoked. As grounds for

revocation, the Department alleged that Respondent, on three

separate occasions, allowed three separate male foster children,

ages 12 to 13 years old, to sleep with Respondent in Respondent's

bed, in violation of Section 409.175(8)(b)1, Florida Statutes,

and Rule 65C-13.011(14)(d) and (f)1, Florida Administrative Code.

(Rule 65C-13.011(14), Florida Administrative Code, was renumbered

as Rule 65C-13.0ll(13), Florida Administrative Code, on

November 30, 1997, without any change to the language and was in

effect at the time of the alleged violation). At the beginning

of the hearing, the Department agreed that even though its letter

of August 17, 1998, was titled "Notice of Denial" this proceeding

involved the Department's attempt to revoke Respondent's license

as a foster home. The Department further agreed that the

Department had the ultimate burden of going forward with the

proof by the clear and convincing standard. As a result, the

case style was been amended to show the Department as Petitioner

rather than Respondent.

By letter dated September 7, 1998, Respondent requested a

formal hearing in accordance with Sections 120.569 and 120.57,

Florida Statutes. By letter dated September 15, 1998, the

Department referred the matter to the Division of Administrative

Hearings (Division) for the assignment of an Administrative Law

Judge and for the conduct of a formal hearing.

At the hearing, the Department presented the testimony of

Mary Jordan and Gary Burford. Department's Exhibit numbered 1

was received into evidence. Respondent testified in his own

behalf and presented the testimonies of Thomas Tempone and

Michelle Tempone; Respondent did not offer any documentary

evidence. Joint Exhibit numbered 1, Prehearing Stipulations, was

received into evidence. Section 409.175(8)(b)1, Florida

Statutes, and Rule 65C-13.011(14)(d) and (f)1, Florida

Administrative Code, were officially recognized.

A Transcript of this proceeding was filed with the Division

on May 13, 1999. The Department's unopposed Motion for Extension

of Time to File Proposed Recommended Orders was granted with the

understanding that any time constraint imposed under

Rule 28-106.216(1), Florida Administrative Code, was waived in

accordance with Rule 28-106.216(2), Florida Administrative Code.

The parties filed their Proposed Recommended Orders within the

extended time frame.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence

adduced at the hearing, the following relevant findings of fact

are made:

1. At times pertinent to this proceeding, Respondent was

licensed as a foster home, having been issued such license on

October 23, 1997.

2. The Department is the agency of the state charged with

the responsibility and duty to carry out and enforce the

provisions of Chapter 409, Florida Statutes.

3. Respondent received the Department's Model Approach to

Partnership Parenting (MAPP) training to become a foster parent

between September 1995 and December 1995.

4. The Department provides MAPP training to teach persons

how to become foster parents.

5. The MAPP training that Respondent received included

instructions concerning appropriate sleeping arrangements, namely

that an adult should not sleep in the same bed with a foster

child.

6. Respondent agreed that the MAPP training was very useful

and that he gained insight from that training on how to be a

foster parent.

7. Respondent received his foster care license on

October 23, 1997, and the Department placed its first foster

child with Respondent in January 1998.

8. Foster child D.D., born October 23, 1985, was placed

with Respondent by the Department January 20, 1998, and stayed

with Respondent until March 12, 1998, when he was removed by the

Department.

9. Foster child E.T., born December 12, 1984, was placed

with Respondent on January 12, 1998, and stayed with Respondent

until January 21, 1998, when he was removed by the Department.

E.T. was again placed by the Department with Respondent on

January 23, 1998, and stayed with Respondent until March 12,

1998, when he was removed by the Department.

10. Foster child R.M., born October 10, 1984, was placed

with Respondent by the Department on March 2, 1998, and stayed

with Respondent until March 9, 1998, when he was removed by the

Department due to an alleged incident between R.M. and E.T. which

occurred on March 9, 1998. The incident resulted in the

Department's conducting an investigation concerning an alleged

abuse on the foster child, E.T. by the foster child, R.M.. It

appears from the record that the allegations were unfounded. In

any event, R.M. was removed from Respondent's foster home on

March 9, 1998, because his record indicated that in an earlier

incident R.M. had sexually victimized another child (not E.T.).

Also, because E.T. had been sexually victimized by another child

(not R.M.) previous to being placed in Respondent's care the

Department decided to remove E.T. from Respondent's home. It

should be noted that the Department was aware of these prior

incidents concerning R.M. and E.T. and the sleeping arrangements

at Respondent's foster home at the time these foster children

were placed with Respondent by the Department.

11. Foster children, B.B. and C.L., dates of birth not in

evidence, were placed with the Respondent by the Department on

February 24, 1998, and stayed with Respondent until February 25,

1998, when they were removed by the Department.

12. During the investigation concerning the alleged abuse

incident involving R.M. and E.T. and at the hearing, Respondent

admitted to sleeping in the same bed as E.T. and D.D. Respondent

testified that on at least five occasions E.T. had slept in the

same bed as Respondent. The facts surrounding this sleeping

arrangement was that E.T. was suffering from an upper respiratory

problem and would go to sleep on Respondent's bed before

Respondent, who stayed up late reading, was ready for bed. As a

result Respondent would sleep with E.T. to keep from waking him.

There was no allegation, and certainly no evidence, that

Respondent sexually or otherwise molested E.T. at any time.

Respondent also admitted to sleeping in the same bed as D.D. on

one occasion. Again, there was no allegation, and certainly no

evidence, that Respondent sexually or otherwise molested D.D.

12. At the time the Respondent applied for and was granted

a foster home license and during the intervening time, the

Department's personnel who worked with Respondent were well aware

of the lack of sleeping spaces in Respondent's home. In fact,

one of the Department's employees upon being advised of

Respondent's sleeping arrangements commented that "it was better

than sleeping on the floor at HRS."

13. Upon being advised of the restriction on adults

sleeping with foster children, the Respondent did not at first

fully understand the risk of harm to the children. However,

after being reminded of his MAPP training and the risk of harm to

children in such a sleeping arrangement, Respondent realized his

mistake in allowing such sleeping arrangements.

14. Under Respondent's tutelage, E.T. and D.D. thrived

academically and have continued to thrive since they left

Respondent's home.

15. The Department had some concern that Respondent's son

was living in the home and that it had not been made aware of

that circumstance. However, the Department knew, when

Respondent's license was issued, that his son was living in the

home.

CONCLUSIONS OF LAW

16. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding pursuant to Section 120.57(1), Florida Statutes.

17. The burden of proof is on the party asserting the

affirmative of an issue before an administrative tribunal.

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

396 So. 2d 778 (Fla. 2d DCA 1981). To meet this burden, the

Department must establish facts upon which its allegations are

based by clear and convincing evidence. Department of Banking

and Finance, Division of Securities and Investor Protection vs.

Osborne Stern and Company , 670 So. 2d 932 (Fla. 1996) and Section

120.57(1)(h), Florida Statutes.

18. Section 409.175(8)(a) and (b)1,2, Florida Statutes,

provides 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

19. Rule 65C-13.011(13)(d) and (f), Florida Administrative

Code, provides as follows:

(13) Interior Environment.

* * *

(d) Each child must have his own bed and

each infant his own crib. In order to ensure

desirable privacy, children in substitute

care must not share a bedroom with any adult,

except for infants 12 months or younger. Any

child over three years of age must not share

a bedroom with a child of the opposite sex.

Although this standard does not necessarily

apply to children reared in their own homes,

it is an essential safeguard for children

because the nature of their early experiences

may effect [sic] the development of their

sexual attitudes and subsequent behavior.

* * *

(f) The following sleeping arrangements are

not permitted:

1. Children sharing a bed with an adult.

20. The Department has proven by clear and convincing

evidence that Respondent did in fact sleep in the same bed as

E.T. and D.D. in violation of Rule 65C-13.011(13)(d) and (f)1,

Florida Administrative Code. The Department's rules do not

provide for mitigating circumstances; however, the circumstance

surrounding this case requires a reduced penalty.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law and the mitigating circumstances, it is recommended that the

Department enter a final order suspending Respondent's foster

home license for a period of one year, staying the suspension and

imposing such reasonable conditions as the Department deems

necessary to further educate Respondent as to his

responsibilities as a foster parent.

DONE AND ENTERED this 26th of July, 1999, in Tallahassee,

Leon County, Florida.

___________________________________

WILLIAM R. CAVE

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 26th day of July, 1999.

COPIES FURNISHED:

Jack E. Farley, Esquire

Department of Children and

Family Services

4720 Old Highway 37

Lakeland, Florida 33813-2030

Thomas D. Wilson, Esquire

Law Office of Gregory Ruster

1525 South Florida Avenue

Suite 3

Lakeland, Florida 33803

Gregory D. Venz. Agency Clerk

Department of Children and

Family Services

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 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.