STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANNIE LOIS WILSON, )

)

Petitioner, )

)

vs. ) CASE NO. 91-0601

) DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written notice a formal hearing was held in this case before Larry J. Sartin, a duly designated Hearing Officer of the Division of Administrative Hearings, on March 18, 1991, in Madison, Florida.

APPEARANCES

For Petitioner: Annie Lois Wilson, pro se

Route 1, Box 248

Pinetta, Florida 32350

For Respondent: Harold D. Lewis

District Legal Counsel Department of Health and

Rehabilitative Services District 2

2639 North Monroe Street Suite 200-A

Tallahassee, Florida 32399-2949 STATEMENT OF THE ISSUES

Whether the Petitioner's request to be licensed in Florida as a foster home parent should be approved?

PRELIMINARY STATEMENT

The Petitioner, Annie Lois Wilson, filed a Foster Home Licensing Application with the Respondent, the Department of Health and Rehabilitative Services (hereinafter referred to as the "Department"), requesting licensure as a foster home parent. By letter dated December 3, 1990, the Department informed Ms. Wilson that her application was denied. In a letter filed with the Department on December 31, 1990, Ms. Wilson challenged the requested a formal administrative hearing. Ms. Wilson's request for formal hearing was referred by the Department to the Division of Administrative Hearings.

At the formal hearing Ms. Wilson testified on her own behalf. She offered no exhibits. The Department presented the testimony of Larry Pintacuda and

offered four exhibits. The Department's exhibits were accepted into evidence without objection.

The Department filed a proposed recommended order and Ms. Wilson filed a letter containing proposed findings of fact. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order or the proposed finding of fact has been accepted or rejected in the Appendix which is attached hereto.

FINDINGS OF FACT

1. Ms. Wilson is a 22 year old, female.

   
   

2. Ms. Wilson is a single parent. She provides care for one child, her eighteen month old son.

   
   

3. Ms. Wilson has not been married.

   
   

4. Ms. Wilson's annual income is approximately $6,000.00. Ms. Wilson's income consists of Social Security benefits, Aid to Families with Dependent Children and food stamps.

   
   

5. Ms. Wilson pays approximately $129.00 per month for rent, $60.00 to

   $70.00 for utilities and $50.00 for furniture. Her food is paid for with the food stamps she receives. Ms. Wilson has an automobile which is paid for. Ms. Wilson is able to live on the income which she receives.

   
   

6. Ms. Wilson had open heart surgery when she was three years of age.

   
   

7. Ms. Wilson is under no medical restrictions as a result of her heart surgery. Ms. Wilson's physician has told her to have a physical every three years, however.

   
   

8. Ms. Wilson is not employed. She quit her last job when she became pregnant with her son. Ms. Wilson's last job was at the Madison Stock Yard where she worked for four years.

   
   

9. Ms. Wilson is physically able to work.

   
   

10. Ms. Wilson does not plan to work. She intends to devote full time to being a foster parent.

    
    

11. Ms. Wilson made inquiry with the Respondent concerning her participation in the foster parent program. Ms. Wilson told Department personnel that she had not been married.

    
    

12. Ms. Wilson participated successfully in training sessions known as Model Approach to Partnership and Parenting training.

    
    

13. On September 4, 1990, Ms. Wilson filed an Application for License to Provide Foster Home Care for Dependent Children with the Department. Respondent's Exhibit 2. The space for "Husband's Signature" on the Application was left blank.

    
    

14. Pursuant to a contract between Florida State University and the Department, a home study was conducted and a report dated August 7, 1990, was prepared for consideration by the Department. In the home study, the following

    "Initial Placement Recommendations" were made: "One or two children, male or female, age 3-10."

    
    

15. Staff of the Department's District 2 reviewed Ms. Wilson's application for licensure and determined that Ms. Wilson met all statutory requirements to become a foster parent. Staff recommended that Ms. Wilson be approved to foster parent one child, new born to five years of age, male or female.

    
    

16. Following review of the application by the Department's District 2 staff, the application was reviewed by Larry Pintacuda, Program Administrator of the Children, Youth and Families office of the Department's District 2.

    
    

17. Mr. Pintacuda has been delegated authority to disapprove applications for licensure as a foster parent.

    
    

18. After reviewing Ms. Wilson's application and the information concerning her application, Mr. Pintacuda decided that Ms. Wilson's application should be denied. Mr. Pintacuda's decision was based upon the following:

    
    

    1. Ms. Wilson's age;

    2. Ms. Wilson is a single parent, with one child to care for already;

    3. Ms. Wilson does not receive child support payments;

    4. Ms. Wilson's annual income;

    5. The potential stress on Ms. Wilson of caring for a foster child. Mr. Pintacuda believed that Ms. Wilson is unable to work because of the stress on her heart.

       
       

19. The weight of the evidence failed to prove that Mr. Pintacuda's concerns would prevent Ms. Wilson from being an acceptable foster parent:

    
    

    1. The weight of the evidence presented failed to prove that a person 21 years of age is not capable of caring for a foster child;

    2. The weight of the evidence presented failed to prove that Ms. Wilson is not capable of caring for more than one child as a single parent. The fact that she is currently caring for an eighteen month old child indicates that she is capable of caring

       for children even though she is a single parent;

    3. & d. The weight of the evidence failed to prove that Ms. Wilson cannot financial herself and her child. The weight of the evi- dence proved just the opposite. Mr. Pintacuda

       was not even aware of what Ms. Wilson's expenses were;

       e. The weight of the evidence failed to prove that Ms. Wilson will not be able to handle the stress of being a foster parent. Ms. Pintacuda's concern was evidently based upon a statement

       in the home study conducted pursuant to the Department's agreement with Florida State Univer- sity that "Ms. Wilson had open heart surgery when she was three years old, thus she does not work

       to avoid stress on her heart." The truth of this statement was not proved by competent sub- stantial evidence at the formal hearing. Addi- tionally, the competent substantial evidence presented at the formal hearing proved that

       the statement that Ms. Wilson does not work "to avoid stress on her heart" is not correct. See findings of fact 7-9.

       
       

20. The Department first informed Ms. Wilson of the specific reasons for denying her application at the commencement of the formal hearing. The Department did not specifically state that Ms. Wilson's application had been denied because she had not been legally married for at least one year as required by Rule 10M-6.005(3)(a), Florida Administrative Code. Ms. Wilson was not, therefore, afforded a fair opportunity to prove that there is "good cause" to approve her application despite her failure to meet the requirements of Rule 10M-6.005(3)(a), Florida Administrative Code.

    
    

21. There is good cause to approve Ms. Wilson's application despite the fact that she has not been legally married: (1) Ms. Wilson already is caring for a child; (2) Ms. Wilson does not work, so she will be available to provide full time to caring for a foster child, she completed the training for foster parents provided by the Department; and (3) everyone other than Mr. Pintacuda that reviewed Ms. Wilson's case recommended approval of her application.

    
    

    CONCLUSIONS OF LAW

    
    

22. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1989).

    
    

23. Rule 10M-6.005(3), Florida Administrative Code, provides the following relevant requirements for licensure as a foster parent:

    
    

    1. Foster Parent Standards. Any exceptions to the following standards shall be for good cause and subject to the written approval of the district program office.

       1. Foster parent applicants shall have had a stabilized, legal marriage of at least one year duration, prior to being licensed.

    . . . .

    (c) Two parent families shall be selected in most cases; however, single parent families shall be selected when they can effectively fulfill the needs of a particular child.

    . . . .

    (e) Foster parent applicants shall have sufficient income to assure that stability and security of their own family without reliance on board payments.

    . . . .

    (h) The age of an adult shall be considered only as it may affect his ability to care for a specific child. By itself, an adult's age

    may not be considered as a barrier to licensure.

    . . . .

24. At the formal hearing the Department indicated that Ms. Wilson's application had been denied based upon a decision of Mr. Pintacuda. Mr. Pintacuda testified about the specific reasons why he had denied Ms. Wilson's application. The reasons given by Mr. Pintacuda, however, were not for the most part supported by the weight of the evidence presented. Additionally, at least one of the reasons given by Mr. Pintacuda is not a sufficient reason under the Department's rules for denying Ms. Wilson's application: Ms. Wilson's age.

    
    

25. The only possible reason for denying Ms. Wilson's application proven by competent substantial evidence is the fact that Ms. Wilson has not been legally married for at least one year. This factor, however, is not necessarily fatal. Rule 10M-6.005(3), Florida Administrative Code, allows exceptions to the standards listed in the rule "for good cause." Based upon the weight of the evidence presented at the formal hearing, Ms. Wilson presented sufficient evidence that there is good cause for approving her application. Ms. Wilson already is caring for a child, she does not work, so she will be available to provide full time to caring for a foster child, she completed the training for foster parents provided by the Department and everyone other than Mr. Pintacuda that reviewed Ms. Wilson's case recommended approval of her application.

    
    

26. If the Department concludes that the evidence did not prove that there is good cause to approve Ms. Wilson even though she had not been married, Ms. Wilson should be given an opportunity to provide such proof. The first time that the Department informed Ms. Wilson of the specific reasons for denying her application was when Mr. Pintacuda explained why Ms. Wilson's application had been denied at the commencement of the formal hearing. When Mr. Pintacuda gave his reasons for denying Ms. Wilson's application during the formal hearing, Mr. Pintacuda did not make it clear that Ms. Wilson's application had been denied pursuant to Rule 10M-6.005(3)(a), Florida Administrative Code, because she had not been legally married for at least one year. Mr. Pintacuda only indicated that one of the reasons for denying Ms. Wilson's application was the fact that she is a single parent. It was not until the Department filed its proposed recommended order that the Department cited Rule 10M-6.005(3)(a), Florida Administrative Code. Therefore, Ms. Wilson was not given a fair opportunity to present evidence which might satisfy the Department that there is good cause to waive the Department's requirement that Ms. Wilson be married for at least one year. Although she provided sufficient evidence to convince the undersigned that she should be approved as a foster parent, if the Department disagrees with this conclusion, Ms. Wilson should be given an opportunity to provide the Department with further proof.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a Final Order approving Ms. Wilson's application to be a foster parent for one child, new born to 5 years of age, male or female. In the alternative, if the Department concludes that good cause for not applying Rule 10M-6.005(3)(a), Florida Administrative Code, has not been proved, Ms. Wilson should be given an opportunity to provide further proof.

RECOMMENDED this 26th day of April, 1991, in Tallahassee, Florida.

LARRY J. SARTIN

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 26th day of April, 1991.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-0601

The parties have submitted proposed findings of fact. Ms. Wilson's proposed findings of fact were contained in a letter. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted.

The Petitioner's Letter

Paragraph Number in Recommended Order Sentences in Letter of Acceptance or Reason for Rejection

1 7.

2 6.

3 Hereby accepted.

4-9 Not supported by the weight of the evidence.

10-11 8.

12 Not supported by the weight of the evidence.

13 10.

14-15 Not supported by the weight of the evidence.

1. Hereby accepted.

2. Hearsay.

3. See 11.

4. See 12.

20-22 Not supported by the weight of the evidence.

23 See 4.

24 5.

25-26 Not supported by the weight of the evidence.

The Respondent's Proposed Findings of Fact

Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection

Annie Lois Wilson, pro se Route 1, Box 248

Pinetta, Florida 32350

Harold D. Lewis District Legal Counsel

Department of Health and Rehabilitative Services

District 2

2639 North Monroe Street Suite 200-A

Tallahassee, Florida 32399-2949

Sam Power, Agency Clerk Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0500

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 91-000601

Orders for Case No: 91-000601