99-000011 Department Of Children And Family Services vs. Wanda T. Barker And H. Ronald Barker Status: Closed Recommended Order on Monday, July 19, 1999.

Summary: Where Respondent slapped four-year-old foster child in the face, foster home license should be revoked.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND )

AND FAMILY SERVICES, )

)

Petitioner, )

)

vs. ) Case No. 99-0011

)

WANDA T. BARKER and )

HOWARD R. BARKER, )

)

Respondents. )

__________________________________)

RECOMMENDED ORDER

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

on May 5, 1999, in Largo, Florida, before Carolyn S. Holifield,

an Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Frank H. Nagatani, Esquire

Department of Children and Family Services

11351 Ulmerton Road, Suite 100

Largo, Florida 33778-1630

For Respondent: R. Michael Robinson, Esquire

701 49th Street, North

Saint Petersburg, Florida 33710

STATEMENT OF THE ISSUES

The issue presented in this case is whether the Respondents’

family foster home license should be revoked for the reasons set

forth in the Department of Children and Family Services'

(Department) revocation letter.

PRELIMINARY STATEMENT

By letter dated November 13, 1998, the Department, notified

the Respondents that after careful review of Abuse Report

No. 1998-088200, it intended to revoke their license to provide

foster care. Respondents requested a formal hearing and the

matter was forwarded to the Division of Administrative Hearings

for assignment of an administrative law judge.

At the hearing, Petitioner presented the testimony of the

following witnesses: Peggy Goodale, a family service counselor

with the Department; Scott Crawford, a child protective

investigator with the Department; Scott Galley, an officer with

the Pinellas Park Police Department; Tammy Douglas, a family

service counselor with the Department; and Judith Adams, an

advanced registered nurse practitioner and a member of the

Suncoast Child Protection Team. The Department's Exhibits

numbered 1-5 were offered and received into evidence.

Respondents testified on their own behalf and presented the

testimony of the following witnesses: Kristina Barker,

Respondents' daughter; David Stewart; Catherine Stewart; Sandra

Dooty; Mary Beach; and Faith Bennett. Except for Respondent's

daughter, all witnesses called by Respondent were either current

or former medical foster parents with Suncoast Child Protective

Team. Respondents offered no exhibits into evidence.

The proceeding was recorded but not transcribed. Both

parties submitted Proposed Findings of Fact and Conclusions of

Law which have been carefully considered in preparation of this

Recommended Order.

FINDINGS OF FACT

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.

2. At all times relevant hereto, the home of Respondents,

Wanda and Howard Barker (Respondents), was licensed by the

Department as a family foster home, having been initially

licensed in July 1997.

3. Prior to receiving the family foster home license,

Respondents were required to and did attend the Department's

Model Approach to Partnership in Parenting ( MAPP) training. Upon

completion of the training course Respondents were required to

sign a discipline policy agreement in which they acknowledged

that they had been informed of the Department's policy against

"hitting a child with any object . . ., spanking a child and any

other form of physical discipline." Respondents signed a copy of

this agreement.

4. In August 1997, the Department placed D. G. and his

brother, J. G., in Respondents' home. D. G. was born on October

21, 1993, and J. G.'s was born on January 7, 1995. At all times

relevant to the proceeding, D. G. was four years old and J. G.

was three years old.

5. Respondent Wanda Barker, is a registered nurse at

Suncoast Child Protection Team, Inc. ( Suncoast). A majority of

the clients served by Suncoast are children with behavioral

problems. As a nurse at Suncoast, Respondent Wanda Barker comes

in contact with such children on a regular basis.

6. On August 10, 1998, Respondent Wanda Barker called the

Department and reported to D. G.'s assigned children service

counselor that she had slapped D. G. the previous day.

Respondent Wanda Barker further advised the counselor that as a

result of the slap, a mark had appeared on D. G.’s face.

7. Immediately after receiving the call, the counselor

notified the appropriate Department personnel and made a report

of abuse to the proper authorities. On that same day, August 10,

1998, the Department assigned a child protective investigator to

conduct an investigation of the reported incident.

8. On August 10, 1998, both the Department's child

protective investigator and an officer with the Pinellas County

Police Department interviewed Respondent Wanda Barker at her

home. In each of these interviews, Mrs. Barker stated that on

the preceding day, August 9, 1998, she slapped D. G. in the face.

9. According to Respondent Wanda Barker, on the day of the

incident, D. G. was in a bad mood. At some point that afternoon

D. G. began yelling at Respondents' daughter. In an effort to

discipline D. G. for yelling, Respondent Wanda Barker told D. G.

to go to his room. When he refused, Respondent Wanda Barker took

D. G. by the arm and attempted to direct him to the room. While

Respondent was holding D. G.'s arm and escorting him to his room,

D. G. continued to yell and he also spit in Respondent Wanda

Barker's face. Immediately after D. G. spit on Respondent Wanda

Barker, she slapped D. G. in the face with an open hand hard

enough to leave a mark on his face. The slap was so forceful

that it caused a 2-3 inch long bruise that was visible the day

after the incident.

10. In the past, Respondent Wanda Barker had sought the

assistance of Department staff in addressing discipline problems

involving D. G. The Department staff had suggested that

Respondents implement various disciplinary methods, including the

use of time-out and positive reinforcement. However, at no time

did the Department personnel ever recommend that Respondents hit

any foster child within their care. On the contrary, the

Department's disciplinary guidelines expressly prohibit hitting a

child or using any form of corporal punishment. As noted in

paragraph 3, Respondents were aware of the Department's policy

regarding corporal punishment and had signed a statement

acknowledging that they would abide by the policy.

11. On August 10, 1998, after the child protective

investigator interviewed Respondent Wanda Barker, he took D. G.

to Suncoast for a physical examination. The examination revealed

the D. G. had several bruises and abrasions typical of an active

child. However, in addition to these bruises and abrasions,

D. G. also had a "red/purple" linear bruise about 2 inches long

and 1 3/8 inches wide on his face. The impression of the

advanced nurse practitioner who examined D. G. was that the

bruise on D. G.'s face was the result of a non-accidental injury.

Moreover, the bruise on D. G.’s face was consistent with one that

could be caused by a slap.

12. It is likely that striking a four-year-old child in the

face with an open hand will cause serious injury to the child,

particularly to the child's head. In fact, an injury to the head

of a child has the potential of causing more serious damage than

an injury to any other part of the body. Accordingly, Respondent

Wanda Barker's willful and intentional act of forcefully slapping

D. G.'s face was one that was likely to result in physical injury

to the child. This intentional act materially affected the

health or safety of D. G.

13. During the course of the investigation, the Department

removed D. G., his brother, and another foster child in

Respondents' care from their home.

14. At the conclusion of his investigation, the child

protective investigator entered a final report which concluded

that "verified bruises/welts abuse" were found and that some

indicators of "excess[ ive] corporal punishment/abuse" were also

found. This Florida Protective Services System Abuse Report was

forwarded to the Department's licensing unit. After a review and

consideration of the facts contained in the abuse report, the

Department revoked the Respondents' family foster home license.

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, 120.57, and

120.60, Florida Statutes.

16. This case involves the revocation of Respondents'

family foster home license. In a license disciplinary proceeding

such as this, the burden is on the regulatory agency to establish

facts upon which its allegations of misconduct are based. Balino

v. Department of Health and Rehabilitative Services , 348 So. 2d

349 (Fla. 1st DCA 1977). Moreover, the Department must prove the

material allegations by clear and convincing evidence.

Department of Banking and Finance, Division of Securities and

Investor Protection v. Osborne Stern and Company , 670 So. 2d 932

(Fla. 1996); Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987);

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

17. Section 409.175, Florida Statutes, provides in

pertinent part:

(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.

* * *

(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.

18. According to Section 409.175(8)(b)1., Florida Statutes,

quoted above, the Department has the discretion to revoke a

foster home license where an intentional act materially affects

the health or safety of a child. In this case, the Department's

decision to revoke Respondents' foster home license was "due to

the verified finding of [a] buse." If it is established that the

abuse occurred and was perpetrated by Respondent Wanda Barker as

alleged, the underlying act which constituted the abuse is

clearly one that affects the health or safety of a child.

19. Striking the head of a child has a high probability of

causing serious injury to a young child. Here, Respondent Wanda

Barker slapped D. G., a four-year-old child entrusted to her

care, with enough force to leave a bruise on his face for at

least a day.

20. Section 39.01(2), Florida Statutes, defines abuse as

follows:

"Abuse" means any willful act or threatened

act that results in any physical, mental, or

sexual injury or harm that causes or is

likely to cause the child's physical, mental,

or emotional health to be significantly

impaired. For the purpose of protective

investigations, abuse of a child includes the

acts or omissions of the parent, legal

custodian, caregiver, or other person

responsible for the child's welfare.

Corporal discipline of a child by a parent,

legal custodian, or caregiver for

disciplinary purposes does not in itself

constitute abuse when it does not result in

harm to the child is defined in s. 415.503.

21. The term "harm" is defined in Section 415.503(9),

Florida Statutes. That section provides in relevant part the

following:

(9) "Harm" to a child's welfare can occur

when the parent or other person responsible

for the child's welfare:

(a) Inflicts or allows to be inflicted upon

the child physical, mental, or emotional

injury. In determining whether harm has

occurred, the following factors must be

considered in evaluating any physical,

mental, or emotional injury to a child: the

age of the child; any prior history of

injuries to the child; the location of the

injury on the body of the child; the

multiplicity of the injury; and the type of

trauma inflicted. Such injury includes, but

is not limited to:

* * *

(4) Inappropriate or excessively harsh

disciplinary action that is likely to result

in physical injury, mental injury as defined

in this section, or emotional injury. The

significance of any injury must be evaluated

in light of the following factors: the age of

the child; any prior history of injuries to

the child; the location of the injury on the

body of the child; the multiplicity of the

injury; and the type of trauma inflicted.

Corporal discipline may be considered

excessive or abusive when it results in any

of the following or other similar injuries:

a. Sprains, dislocations, or cartilage

damage

b. Bone or skull fractures

c. Brain or spinal cord damage

d. Intracranial hemorrhage or injury to

other internal organs

e. Asphyxi ation, suffocation, or drowning

f. Injury resulting from the use of a deadly

weapon

g. Burns or scalding

h. Cuts, lacerations, punctures, or bites

i. Permanent or temporary disfigurement

j. Permanent or temporary loss or impairment

of a body part or function

k. Significant bruises or welts

22. In the instant case, the evidence established and it is

undisputed that Respondent was a licensed family foster home

pursuant to Chapter 409, Florida Statutes, and was entrusted with

the care of three small children, including D. G.

23. Moreover, the undisputed evidence established that

Respondent intentionally slapped the face of D. G., a four-year-

old child. This conduct by Respondent constituted inappropriate

and excessively harsh disciplinary action that was likely to

result in physical injury. That such disciplinary action was

excessive is evidenced by the significant bruise on

D. G.'s face.

24. The willful and intentional act committed by Respondent

Wanda Barker as described in the findings of fact constitutes

abuse within the meaning of Sections 39.01(2), Florida Statutes.

Furthermore, the intentional act of Respondent Wanda Barker

materially affects the health or safety of children living in her

home and, thus, constitutes the basis for revoking Respondents'

family foster home license.

RECOMMENDATION

Based of all of the foregoing, it is recommended that the

final order be issued revoking the Respondents' foster home

license.

DONE AND ENTERED this 19th day of July, 1999, in

Tallahassee, Leon County, Florida.

___________________________________

CAROLYN S. HOLIFIELD

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 19th day of July, 1999.

COPIES FURNISHED:

Frank H. Nagatani, Esquire

Department of Children and Family Services

11351 Ulmerton Road, Suite 100

Largo, Florida 33778-1630

R. Michael Robinson, Esquire

701 49th Street, North

Saint Petersburg, Florida 33710

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.