Daniel C. O'Rourke of Matthews &Jones, LLP, Destin; Christa Diviney and Dana C. Matthews II of Matthews &Jones, LLP, Santa Rosa, for Appellants. Kathryn M. Brown, Assistant Regional Counsel, and Aoife Ritchie, Assistant Regional Counsel, Department of Children and Families, Pensacola; Camille Larson, Region Counsel, N.W. Region, Department of Children and Families, Tallahassee, for Appellee.
Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.
On appeal from the Department of Children and Families. Chad Poppell, Secretary.
Daniel C. O'Rourke of Matthews &Jones, LLP, Destin; Christa Diviney and Dana C. Matthews II of Matthews &Jones, LLP, Santa Rosa, for Appellants.
Kathryn M. Brown, Assistant Regional Counsel, and Aoife Ritchie, Assistant Regional Counsel, Department of Children and Families, Pensacola; Camille Larson, Region Counsel, N.W. Region, Department of Children and Families, Tallahassee, for Appellee.
B.L. THOMAS, J.
Kapil and Katrina Puri appeal an order from the Department of Children and Families revoking and declining to renew their foster home license. We set aside the Final Order. See § 120.68(6)(a)(1), (7)(e)(4), Fla. Stat. (2021).
Appellants argue that the Department abused its statutory authority when it ignored or mischaracterized findings of fact, incorrectly labeled findings of fact as conclusions of law, did not include specific reasons for deviation from the Recommended Order, and reweighed the evidence. Appellants held a Department-issued foster home license for about six years before expiration. After it expired, the Department issued a letter notifying Appellants that it intended to revoke and decline renewal of the license. The Department stated that Appellants violated Department rules by using a physical hold on a child, giving the child medication without a prescription, withholding food as a form of discipline, cursing at the child for not getting into the bathtub, and leaving the child's protected-health information in a public place.
Appellants sought administrative review of the Department's decision. After an administrative hearing, the Administrative Law Judge issued a Recommended Order with findings of fact, conclusions of law, and a recommendation that the Department enter into a corrective action plan with Appellants rather than revoking their license.
The findings of fact addressed the child's behavior history and Appellants' use of two physical holds on the child. Before being placed with Appellants, the child had a history of violent behavior that caused harm to herself and others. After being placed with Appellants, the child would have uncontrollable outbursts and tantrums at school, including slapping herself, turning over chairs, biting, and throwing things. The child behaved similarly at home, including kicking, fighting, and spitting at the Appellants. When the child experienced a severe trauma tantrum, Ms. Puri would hold the child so she could not harm herself or anyone around her.
The first hold was when "Ms. Puri would have the child sit on her lap, she would place her arms underneath the armpits of the child; the child's arms were raised and slightly behind her head; and then, Ms. Puri's hands were interwoven between the child's arms and placed behind the child's neck."
The second hold was when Ms. Puri had wrapped the child in a blanket to protect herself and the child from harm during a tantrum.
The Recommended Order's legal conclusions included the following:
79. However, the proscription against using a mechanical restraint is listed under the disciplinary statute, and thus, applies if the restraint was used to discipline the
child. Here, there was no testimony presented at hearing to demonstrate that Ms. Puri restrained the child as a form of discipline. Rather, the evidence establishes that Ms. Puri only restrained [the child] to protect the Puri family and the child from harm. The evidence does not establish that any restraint was used to discipline the child as contemplated by the rule 65C-13.030(2)(h).
80. Accordingly, [the Department] failed to prove by a preponderance of the evidence, that [Appellants] violated rule 65C-13.030(2)(h).
85. The evidence presented at hearing, established that Ms. Puri left [the child's] confidential records in a public place. Based on the violation proven, [the Department] did not prove that [Appellants'] license should be revoked/not renewed.
86. Based on the information available at the time, DCF concluded that [Appellants] would not be receptive to correcting alleged deficiencies. Based on the violation found, [Appellants'] actions did not pose an immediate threat to the health, safety, or welfare of the child, and thus, a corrective action plan would be appropriate. Further, the evidence offered at hearing established mitigating circumstances should DCF determine that a lesser penalty would be appropriate.
The Department filed exceptions to the Recommended Order. The Secretary issued a Final Order granting the Department's exceptions to the Administrative Law Judge's legal conclusions in paragraph 79, 80, 85, and 86.
The Department granted the exceptions to paragraph 79 and 80. The Final Order rejected the Administrative Law Judge's interpretation of Florida Administrative Code Rule 65C- 13.030(3)(h) (2018)[*], which states "No child shall be mechanically restrained or locked in any enclosure, room, closet, bathroom, or area of the house of premises, for any reason." The Recommended Order interpreted the rule to apply to discipline, and not for safety reasons, because Rule 65C-13.030(3) is titled "Discipline." The Administrative Law Judge concluded that the physical holds did not violate the rule because the holds were used for safety, not discipline. The Department, in its exceptions, disagreed, stating that "discipline" is defined by Merriam-Websters Dictionary as "enforcing obedience or order," and therefore, the hold was a violation of the rule.
The Department then granted the exception to paragraph 86, because the Department did not agree that Appellants did not pose an immediate threat to the health, safety, or welfare of the child. The Department stated that Florida Administrative Code Rule 65C-13.035(4)(d) provides that corrective action plans are for licensed caregivers who can understand and correct infractions, but that Appellants did not have such ability and thus posed an immediate threat to the health, safety, or welfare of children. The Department cited to the record in this exception but did not assert that it had conducted a review of the full record or that no substantial competent evidence supported the Administrative Law Judge's findings.
The Department granted the exception to paragraph 85, because the Department disagreed with the Administrative Law Judge's conclusion that Appellants' violations did not require a revocation of their foster home license. The Department's Final Order cited Appellant's use of restraints on the child as a rule violation and concluded that the restraints and confidential record violations should result in revocation of Appellant's license. The Final Order thus rejected the recommended corrective action plan in favor of revocation and non-renewal of Appellants' license.
An agency may adopt the recommended order, or it may reject or modify the recommended order, if it correctly follows the procedure set forth in section 120.57(1)(l), Florida Statutes. Section 120.57(1)(l) provides:
The agency may accept the recommended penalty in a recommended order, but may not reduce or increase it without a review of the complete record and without stating with particularity its reasons therefor in the order, by citing to the record in justifying the action.(emphasis added). The Florida Constitution prohibits this Court from deferring to an agency's conclusions of law. Art. V, § 21, Fla. Const. ("In interpreting a state statute or rule, a state court or an officer hearing an administrative action pursuant to general law may not defer to an administrative agency's interpretation of such statute or rule, and must instead interpret such statute or rule de novo.").
In the Department's exception to paragraph 86, it challenged the Recommended Order's finding that Appellants could understand and correct infractions. The Department disagreed, stating that "it is apparent that [Appellant] does not have the ability to understand and correct the infraction of restraining the child." Although this exception was labeled as a "conclusion of law," the Department's finding that Appellants did not have the ability to understand and correct an infraction is a finding of fact. To propose such a finding, the Department improperly reweighed the evidence addressed in the administrative hearing. See J.D. v. Fla. Dep't. of Child. & Fams., 114 So.2d 1127, 1133 ("These determinations were labeled as conclusions of law, but they were actually findings of fact."). To modify a finding of fact the Department was required to review the complete record and state with particularity that the finding of fact was not based on competent substantial evidence. § 120.57(1)(l), Fla. Stat. The Department did not do so and thus failed to comply with section 120.57(1)(l).
This exception also modified the recommended penalty-a corrective action plan. The Department stated that a corrective action plan would be contrary to the intent of Chapters 39 and 409, Florida Statutes. But to reduce or increase the recommended penalty, the Department was required to review the complete record and state with particularity its reasons for the change with citations to the record. The Department did not do so and again failed to comply with section 120.57(1)(l).
The exception to paragraph 85 also modified the recommended penalty. The Department reweighed the Appellants' use of restraints and their act of leaving confidential records in a public place, finding that the two violations satisfied the Department's burden to prove that Appellants' license should be revoked and not renewed. But, again, the Department did not meet the requirements of section 120.57(1)(l), because it did not review the complete record, state with particularity its reasons for modifying the recommended penalty, and support its decision to modify with citations to the record.
Because the Department failed to comply with section 120.57(1)(l), Florida Statutes, in granting the exceptions, we set aside the Department's Final Order. The Department is directed to enter a Final Order implementing the corrective action plan in the Recommended Order, or to enter a Final Order consistent with this opinion.
NORDBY, J., concurs; KELSEY, J., dissents with opinion.
KELSEY, J., dissenting with opinion.
We should affirm because the agency's decision is legally correct and procedurally proper on at least one dispositive legal basis: that the agency had the authority to reject the ALJ's legal conclusions in paragraphs 79 and 80 as to what conduct was prohibited, and properly did so while complying with the Administrative Procedure Act, in deciding not to renew the Puris' license. Whether or not the agency said the magic words on other exceptions makes no difference.
It comes down to whether Mrs. Puri's physical contact with the child-a five-year-old girl-was permissible. It is undisputed that Mrs. Puri was unable to handle the child and resorted to a wrestling maneuver-a Full Nelson hold-among other things, to gain control. This physical restraint violated the governing administrative rule and the contracts that the Puris signed.
A Full Nelson hold is "a wrestling hold gained from behind an opponent by thrusting the arms under the opponent's arms and clasping the hands behind the opponent's head." Full Nelson, Merriam-Webster.com Dictionary, https://www.merriam- webster.com/dictionary/full%20nelson (last visited Sept. 5, 2023). In this case, Mrs. Puri admitted that in addition to pinning the child's arms back and head down, she also simultaneously wrapped her legs around the child's legs. We have held that such a hold committed in a social setting can support a tort claim for personal injury, due to the inherent possibility of injury and the claimant's lack of consent to the possibility of such injury. See Donaldson v. Cenac, 675 So.2d 228, 232 (Fla. 1st DCA 1996) (calling the maneuver "amateur chiropraxis" when used in an attempt to alleviate the plaintiff's back pain); see also Paye v. Bd. of Educ. of City of Chi., 2015 IL App (1st) 140098-U, ¶¶27, 38, 4345, 2015 WL 3939622, at **6, 8-9 (unpublished opinion) (finding teacher properly discharged for using a wrestling move to subdue a student, regardless of whether it was a "chokehold, full Nelson or a hip check," where school policy known to the teacher prohibited such physical restraint); State v. Kossow, 261 P.3d 979, 2011 WL 5027110, at *6-7 (Kan.Ct.App. 2011) (unpublished opinion) (finding high school teacher subject to prosecution for felony aggravated battery for putting misbehaving student in Full Nelson hold); Carabba v. Anacortes Sch. Dist. No. 103, 435 P.2d 936, 939 (Wash. 1967) (en banc) (granting new trial for negligence of school district where referee failed to prevent high school wrestler from using Full Nelson hold, resulting in "the severance of a major portion of [the other student's] spinal cord resulting in permanent paralysis of all voluntary functions below the level of his neck").
Beyond being dangerous and demeaning, what Mrs. Puri did violated the requirements of Rule 65C-13.030(e)(VIII), Florida Administrative Code (2018), which provided as follows (emphasis added):
(I) Licensed out-of-home caregivers shall discipline children with kindness, consistency, and understanding, and with the purpose of helping the child develop responsibility and self-control.
(II) Licensed out-of-home caregivers shall use positive methods of discipline. Acceptable methods of discipline are reinforcing acceptable behavior, expressing verbal disappointment of the child's behavior, loss of privileges, grounding, restricting the child to the house or yard, or sending the child out of the room and away from the family activity; and redirecting the child's activity.
(III) Licensed out-of-home caregivers shall not subject children to cruel, severe, or unusual forms of discipline.
(IV) Licensed out-of-home caregivers shall not use corporal punishments of any kind.
(V) Licensed out-of-home caregivers shall not delegate discipline or permit punishment of a child by another child or by an adult not in a caregiver role.
(VI) Licensed out-of-home caregivers shall not withhold meals, clothing, allowance or shelter as a form of discipline.
(VII) Licensed out-of-home caregivers shall not ridicule or punish a child for bed-wetting or other lapses in toileting.
(VIII) No child shall be mechanically restrained or locked in any enclosure, room, closet, bathroom or area of the house or premises, for any reason.
(IX) Licensed out-of-home caregivers shall not threaten a child with removal from the home or with a report to authorities as consequences for unacceptable behavior and shall not prohibit visitation with family and significant others as punishment.
(X) Licensed out-of-home caregivers will seek the assistance of the child's primary services worker or therapist for behavior problems.
Under section 120.57(1)(l) of the Florida Statutes, the agency was entitled to reject the ALJ's conclusions of law about what conduct was prohibited. The agency also was empowered to then resolve the legal question of whether the prohibitions in Rule 65C-13.030 against "cruel, severe, or unusual forms of discipline" and against "corporal punishment of any kind" (or any other provision of law) encompass an adult's use of a Full-Nelson-hold-plus-legwrap to immobilize a five-year-old girl. The agency reached a valid and eminently reasonable conclusion that Mrs. Puri's conduct was prohibited.
The agency's conclusion of law is also supported by the written agreements about discipline, punishment, and physical contact that the Puris signed and that were entered into evidence without objection. One was entitled "Agreement to Abide by Discipline Policy." In it, the Puris confirmed that the licensing unit representative had explained the State's policy regarding discipline of foster and shelter children, that they had received a copy of the policy, and that they understood that violating the policy could result in termination of their license. They expressly agreed "to abide by the State policy regarding discipline of foster and shelter children, which includes no corporal punishment being used." (Emphasis original.)
The "Discipline Policy and Guidelines" documents in evidence to which the Puris agreed set forth clear governing concepts as well as specifics on acceptable and unacceptable methods of discipline. They listed twelve "Prohibited Disciplinary Practices," among which is a prohibition against using "cruel, severe, humiliating, unusual or degrading punishment which subjects the child to ridicule." This is followed by a prohibition against using "corporal punishment (which includes: spanking, slapping, pinching, shaking, pulling hair, twisting ears or any other physical punishment which inflicts pain upon the child)." Note that this is expressly made a non-exclusive definition of prohibited corporal punishment, again placing its interpretation and application within the agency's legal authority.
Even after a state child protective investigator and a unit manager of FamiliesFirst Network, an agency contracted to facilitate foster care licensing for the state, informed Mrs. Puri that she could not restrain the child in any way-"could not put her hands on the child or restrain her"-Mrs. Puri indicated she would continue to do it. And she did in at least one later instance, by wrapping the child up in a blanket to control her behavior, before the child was finally removed from the home.
The legal effect of Mrs. Puri's undisputed use of a Full Nelson hold and her insistence on being entitled to use physical restraint in the face of contrary governing rules, contracts, and state agency guidance is a question of law that the agency was entitled to resolve de novo. It was for the agency to determine if the acts committed-which were undisputed-fell within the scope of prohibited discipline or punishment, including corporal punishment. The agency's exception to the ALJ's legal conclusion was thus proper. The exception's specificity complied with section 120.57(1)(l), expressly finding the agency's conclusion of law "to be as or more reasonable than the rejected paragraphs [of the ALJ's recommended order]." That is a sufficient basis on which to affirm.
[*] Florida Administrative Code Rule, 65C-13.030 (2018) was repealed in 2020; however, the language from former Rule 65C-13.030(3)(h) was transferred to Rule 65C-45.010(4)(i) (2022).