STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FRANK JAMES KOSA, )

)

Petitioner, )

)

vs. ) CASE NO. 82-786

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Ft. Lauderdale, Florida, on June 17, 1982, before the Division of Administrative Hearings and its duly appointed Hearing Officer, R. T. Carpenter. The parties were represented by:

APPEARANCES

For Petitioner: William F. Zamer, Esquire

1421 East Oakland Park Boulevard, Suite 200 Oakland Park, Florida 33334

For Respondent: Harold Braynon, Esquire

District X Legal Counsel Department of Health and

Rehabilitative Services

201 West Broward Boulevard

Ft. Lauderdale, Florida 33301

This matter arose on Respondent's denial of Petitioner's application to become a foster parent to the dependent child, Richard Price. The parties submitted proposed findings of fact which have been incorporated herein to the extent they are relevant and consistent with the evidence.

FINDINGS OF FACT

1. The Petitioner is a single male, 39 years of age. He has been a resident of Broward County for the past six years and is self-employed in real- estate management and maintenance. He holds a master's degree from Ohio State University and is in apparent good health.

   
   

2. In addition to about twelve traffic violations, Petitioner has been arrested for wrongful influence of a minor in 1976, and soliciting a lewd and lascivious act in 1977. The 1977 charge was dropped, but the 1976 charge resulted in a $25 fine.

   
   

3. Petitioner's experience as a parent is limited. He did, however, provide a home to a son (born out of wedlock) for the child's final two years of high school.

4. Petitioner met the dependent child, Richard Price, on the beach in August, 1980. Richard was then 14 years and ten months of age. After determining that Richard was "living on the street," Petitioner offered to share his condominium apartment with him. Richard accepted and remained with Petitioner until February, 1982, when he was removed by Respondent.

   
   

5. Petitioner did not notify Respondent, who had custody of Richard, when he brought the child to his home in August, 1980. However, Respondent did not actively attempt to locate Richard and was not aware of his situation until over a year later, despite Richard's dependent child status.

   
   

6. During his first year with Petitioner, Richard's adjustment and behavior were satisfactory. He attended high school and travelled with Petitioner on a family visit to Ohio and a group education tour to England. He gained weight and received medical attention as needed during this period.

   
   

7. In the summer of 1981, Richard formed a relationship with another dependent child who had moved into Petitioner's condominium building. His behavior deteriorated thereafter, at least partly as a result of this relationship.

   
   

8. On September 28, 1981, the police were called to Petitioner's residence regarding an argument between Petitioner and Richard. As a result of the police report, Respondent became aware of Richard's unapproved status. However, Respondent issued Petitioner a provisional license as a foster parent and Richard was allowed to remain in petitioner's custody.

   
   

9. On November 6, 1981, Richard threatened Petitioner with a knife. The police were again summoned and Richard was temporarily placed in the South Florida State Hospital. On this occasion, Richard was returned to Petitioner's custody by court action.

   
   

10. On February 6, 1982, Petitioner and Richard had an argument which culminated in a physical fight. In the struggle, Petitioner bit Richard rather severely, in what he contends was self-defense. Petitioner concedes that he bit Richard during an

    earlier altercation, also in claimed self-defense.

    
    

11. As a result of the February 6 incident, Respondent removed Richard from Petitioner's custody and subsequently denied his application for licensure as a foster parent. Both Richard and Petitioner seek to resume the previous custody arrangement.

    
    

12. Although Petitioner did not achieve a father-son relationship with Richard, he did provide a home-type setting in which Richard, for the most part, prospered. Richard is known to Respondent as having a "hot temper" and is at least partly responsible for the above described incidents.

    
    

    CONCLUSIONS OF LAW

    
    

13. Rule 10C-10.29, Florida Administrative Code, sets forth standards for the licensing of foster parents. Respondent based its denial of Petitioner's application on Subsection 10C-10.29(3) 7, which requires that a foster parent

    Have a reputable character, values and ethical standards conducive to the well being of children. . .

    
    

    Rule 28-6.08(3), Florida Administrative Code, provides:

    
    

    Any hearing on the denial of a license shall

    be conducted in accordance with Section 120.57, and unless otherwise provided by law the applicant shall have the burden of

    establishing entitlement to the license.

    
    

14. The above provisions require Petitioner to demonstrate that he is qualified for licensing as a foster parent to the extent that his character, values and ethical standards are sufficiently high to insure the health, safety and welfare of the foster child.

    
    

15. Petitioner has not met his burden of proof in this proceeding. His failure to notify any authority of the child's whereabouts for over one year was a serious lapse of judgment. Biting the child during altercations indicates, at best, an inability to supervise and control this child. At worst, as Respondent suggests, these were acts of child abuse.

    
    

16. Petitioner's generosity toward the child is commendable, and in spite of deficiencies in Petitioner's supervision, the child may well be better off with him than in the custody of Respondent. However, no provision of law applicable here permits any evaluation of comparative welfare. Rather, the applicant must meet the established standards for licensing as a foster parent or have such application denied.

RECOMMENDATION

From the foregoing, it is RECOMMENDED:

That Respondent enter a final order denying the petition.

DONE and ENTERED this 28th day of July, 1982 in Tallahassee, Florida.

R. T. CARPENTER Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 28th day of July, 1982.

COPIES FURNISHED:

William F. Zamer, Esquire Suite 200

1421 East Oakland Park Boulevard Oakland Park, Florida 33334

Harold Braynon, Esquire District X Legal Counsel Department of HRS

201 West Broward Boulevard

Ft. Lauderdale, Florida 33301

David H. Pingree, Secretary Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32301

Docket for Case No: 82-000786

Orders for Case No: 82-000786