STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WENDELL AND ALTA FRENCH, )

)

Petitioners, )

)

vs. ) CASE NO. 91-5399

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings by its duly designated Hearing Officer, James E. Bradwell, held a formal hearing in this case on September 29, 1993 in Tampa, Florida.

APPEARANCES

For Petitioners: Wendell and Alta French, pro se

6133 Shirley Avenue

Gibsonton, Florida 33534

For Respondent: Raymond R. Deckert, Esquire

Department of Health and Rehabilitative Services

4000 West Dr. Martin Luther King Jr. Blvd. Tampa, Florida 33614

STATEMENT OF THE ISSUE

Whether or not Petitioner's application for an emergency shelter care home license should be approved.

PRELIMINARY STATEMENT

Petitioners, Wendall and Alta French, are applicants for an emergency shelter care home license. By letter dated April 5, 1991, Respondent, Department of Health and Rehabilitative Services, advised Petitioners that their application was denied because "you lack ability to provide for the psychological development of children as required in Rule 10M-6.005(3)(i), Florida Administrative Code, due to the emotional instability in your home."

Petitioners were advised of their right to contest that determination by requesting a formal hearing which was done. Thereafter, the matter was referred to the Division of Administrative Hearings and on October 3, 1991, the matter was initially noticed for hearing for November 12, 1991. At that hearing, the Petitioners attempted to amicably resolve the matter without completing the hearing. It remained in abeyance through December 1991, but was rescheduled during January 1992 based on the parties inability to reach an agreement. The

parties tried again unsuccessfully to resolve the matter amicably and on June 15, 1993, it was renoticed for hearing for September 29, 1993 and was heard at that time. At hearing, Respondent presented the testimony of Mary Carol Hill, a human services program specialist for the Children and Family Services Program office, foster/emergency shelter care licensing. Respondent also offered the deposition of Dr. Horatio Arias, M.D., a psychiatrist who treated Petitioners' son; and a copy of Petitioners' licensing packet, which documents were received in evidence as Respondent's Exhibits 1 and 2.

Petitioners testified on their own behalf and presented the testimony of Melvin Floyd McNeil, Sr., a former foster care parent and president of the Hillsborough County Foster Care Association.

Respondent presented a proposed recommended order which is substantially incorporated in this recommended order. Petitioners did not file a proposed recommended order and a transcript of the hearing was not provided.

FINDINGS OF FACT

1. Petitioners received a respite care license from Respondent on February 23, 1990 which allowed Petitioners to babysit foster children for short periods of time. This license expired by its terms on February 23, 1991.

   
   

2. On January 20, 1991, Petitioners applied for a license to provide emergency shelter family home care for dependent children.

   
   

3. Petitioners have a son, approximately 23 years of age, who lives with them and who has certain psychiatric problems. Respondent denied Petitioners' application on April 5, 1991 on the basis that Petitioners lacked the ability to provide for the psychological development of foster children due to the emotional instability in their home. Respondent reached that conclusion based on the medical opinion of Dr. Horatio Arias, M.D., a psychiatrist who was employed by Respondent and who provided psychological treatment to Petitioners' son.

   
   

4. Petitioners' son, while under Dr. Arias' medical attention, was administered psychotropic medication for a mental disorder. Dr. Arias opined that Petitioners should not be given the responsibility of caring for foster children as such children are often from abused, neglected, or abandoned families and they are, at times, aggressive. Dr. Arias related instances wherein Petitioner, Mr. French, shouted and hollered at his son and there were often shouting and screaming matches between Mr. French and his son. The son felt threatened by Mr. French "because the patient (the son) didn't agree with him on certain things. (Deposition of Arias pp. 32-33). Based on the relationship between Mr. French and his son, Respondent ran away from home and went to a crisis center supervised by Respondent. He stayed in the center for a short while and was thereafter admitted to a state psychiatric hospital. He was released from the hospital and now lives with Petitioners.

   
   

5. Mr. French admits that he has, at times, had shouting matches with his son and that he talks louder than normal because he is hard of hearing. He also acknowledged that he should be wearing two hearing aids based on his hearing impairment.

   
   

6. The placement of foster children in Petitioners' home could cause stress which would negatively impact on their son who lives with them. This could result in behavior regression (by the son). Such placement could also

   cause psychological regression for the foster children which would negatively impact their psychological development.

   
   

7. Dr. Arias opined that if Petitioners were allowed to care for foster children in their home, that such be done on a temporary basis in a trial manner.

   
   

8. Children tend to tease and upset persons who suffer from psychiatric problems such as Petitioners' son. (Respondent's Exhibit 2, p. 8) It is not feasible for Petitioners to be licensed to provide emergency shelter care on a trial basis as it is impossible to determine how long the placement will last or how many children will need to be placed with the Petitioners at any given time.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this action pursuant to Chapter 120, Florida Statutes.

   
   

10. The parties were duly noticed pursuant to Chapter 120, Florida Statutes.

    
    

11. The authority of the Respondent is derived from Chapter 409, Florida Statutes.

    
    

12. Rule 10M-6.005(e)(i), Florida Administrative Code provides in pertinent part that foster parents will provide for the psychological development of the foster child.

    
    

13. Petitioners lack the ability to meet the psychological development criteria for foster children. Specifically, evidence adduced at hearing established that Petitioners are unable to provide for the psychological development based on the relationship between Petitioners and their son who is experiencing psychological problems. It is likely that the son will come under stress because of his verbal and physical fights with his father, Mr. French. To the extent that they are placed in Petitioners' home, the foster children would very likely suffer behavioral regression. This would be detrimental to the psychological development of foster children who usually come from abusive or neglected homes. Placement of such children with Petitioners would not contribute to their psychological well-being.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law it is RECOMMENDED that:

Respondent enter a final order denying Petitioners' application for a license to provide emergency shelter family home care at this time.

DONE AND ORDERED this 15th day of December, 1993, in Tallahassee, Florida.

JAMES E. BRADWELL

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 15th day of December, 1993.

COPIES FURNISHED:

Robert Powell, Agency Clerk Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Kim Tucker, General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Wendell and Alta French, pro se 6133 Shirley Avenue

Gibsonton, Florida 33534

Raymond R. Deckert, Esquire Department of Health and

Rehabilitative Services 4000 West Dr. Martin Luther

King Jr. Blvd. Tampa, Florida 33614

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.

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AGENCY FINAL ORDER

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STATE OF FLORIDA

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES

WENDELL & ALTA FRENCH,

Petitioner,

CASE NO.: 91-5399

vs. RENDITION NO.: HRS-94-125-FOF

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES,

Respondent.

/

FINAL ORDER

This cause came on before me for the purpose of issuing a final agency order. The Hearing Officer assigned by the Division of Administrative Hearings (DOAH) in the above-styled case submitted a Recommended Order to the Department of Health and Rehabilitative Services (HRS). The Recommended Order entered December 15, 1993 by Hearing Officer James E. Bradwell is incorporated by reference.

FINDINGS OF FACT

The department hereby adopts and incorporates by reference the findings of fact set forth in the Recommended Order.

CONCLUSIONS OF LAW

The department hereby adopts and incorporates by reference the conclusions of law set forth in the Recommended Order, except where inconsistent with the following: The department objects to any implication that the Frenches cannot provide for the psychological development of foster children because they raised a mentally ill son. There is no evidence that the parents are to blame for the illness of their son. To the contrary, there is evidence that they are trying to help the son by providing a safe home and encouraging treatment. Because of the relationship between the son and the father the French household is often noisy and stressed, not unusual in situations such as this. However, children placed in emergency shelter almost always come from disruptive, chaotic environments. The placement of already stressed and confused children into this household could exacerbate the situation even further, hindering the psychological development of the foster children and potentially having harmful effects on the son.

Based upon the foregoing, it is

ADJUDGED, that Petitioners Wendell and Alta French's application for a license to provide emergency shelter family home care be and the same is hereby DENIED.

DONE and ORDERED this 11th day of April, 1994, in Tallahassee, Florida.

H. James Towey, Secretary Department of Health and

Rehabilitative Services

by Linda Radigan, Assistant Secretary for Children and

Families

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO A JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF HRS, AND A SECOND COPY ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

COPIES FURNISHED:

James E. Bradwell Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

Wendell and Alta French 6133 Shirley Avenue

Gibsonton, Florida 33534

Raymond R. Deckert, Esquire District 6 Legal Office

4000 W. Martin Luther King, Jr. Blvd. Tampa, Florida 33614

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing was sent to the above named people by U.S. Mail this 13th day of April, 1994, in Tallahassee, Florida.

Andrea Becraft

for Robert L. Powell, Sr., Agency Clerk

Assistant General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Boulevard Building One, Room 201

Tallahassee, Florida 32399-0700 904/488-2381

Docket for Case No: 91-005399

Orders for Case No: 91-005399