STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHARLES WENZ and JANET GALLAGHER, )

)

Petitioners, )

)

vs. ) CASE NO. 92-2470

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

On June 18, 1992, a formal administrative hearing was held in this case in Bradenton, Florida, before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioners: Richard C. Reinhart, Esquire

Reinhart & Moreland

538 Old Main Street Bradenton, Florida 34205

For Respondents: Raymond R. Deckert, Esquire

Department of Health and Rehabilitative Services

District 6 Legal Office

W. T. Edwards Facility

4000 West Dr. M. L. King, Jr., Blvd. Tampa, Florida 33614

STATEMENT OF THE ISSUE

The issue in this case is whether the Respondent, the Department of Health and Rehabilitative Services (HRS), should grant the application of the Petitioners, Charles Wenz and Janet Gallagher, for a family foster home license. 1/

PRELIMINARY STATEMENT

In January, 1992, the Petitioners, Charles Wenz and Janet Gallagher, applied to renew a "child-specific" license as a family foster home. 2/ On or about February 1, 1992, the court placed the children in their family foster home with the children's maternal grandparents, and the Petitioners converted their application to one for general licensure as a family foster home. On or about March 3, 1992, HRS gave the Petitioners notice that HRS intended to deny their application. By letter from their lawyer dated March 31, 1992, the Petitioners timely requested formal administrative proceedings, and the matter

was referred to the Division of Administrative Hearings on April 22, 1992. Final hearing was scheduled for and held on June 18, 1992, in St. Petersburg, Florida.

At the final hearing, the burden of going forward initially with the presentation of evidence was placed HRS. 3/ HRS called eight witnesses and had HRS' Composite Exhibit 1 admitted in evidence. The Petitioners called four witnesses in their behalf.

Neither party ordered the preparation of a transcript of the final hearing, and the parties were given until June 29, 1992, in which to file proposed recommended orders. Explicit rulings on the proposed findings of fact contained in the parties' proposed recommended orders may be found in the attached Appendix to Recommended Order, Case No. 92-2470.

FINDINGS OF FACT

1. Through series of circumstances, the Petitioners in this case--Charles Wenz and Janet Gallagher, husband and wife--came to know the children of a woman named N. M. 4/ Their priest told them about Nancy and her predicament. A serious drug and alcohol addict, and already the single mother of two boys (J. D., born December 30, 1977, and B. F., born January 7, 1983), each of whom had a different biological father, she was about to have another child by yet another man. The Petitioners were asked to help the family, and they agreed.

   
   

2. Shortly after the third child--a girl, N. F., born November 4, 1988-- was released from the hospital, the mother asked the Petitioners to let the family live with them temporarily. Not long afterward, the mother slipped back to her way of abusing drugs and alcohol and left, leaving the children with the Petitioners. For some time, the Petitioners cared for the children without being licensed as a family foster home and without any financial assistance from HRS. Later, in approximately March, 1991, they became licensed as a family foster home for the specific and limited purpose of caring for the children of

   1. M. 5/

      
      

3. When it came to the children in their care, the Petitioners generally were very attentive to their needs for food, clothing, shelter and medical care, and they provided very well for the children, following up on all doctor appointments and the like. They were very conscientious in this regard. Generally, they got along well with the children, and the children tended to view them as if they were their real parents.

   
   

4. As a result of their involvement with the family, the Petitioners came to know the children's maternal grandparents. While initially the Petitioners got along fairly well with the maternal grandparents, they had the opportunity to form opinions of them based on personal experience and stories related by the children and, later, by the fathers of the two boys. Essentially, the Petitioners thought the maternal grandparents were good grandparents, and they encouraged and cooperated in the maintenance of a relationship between the children and the maternal grandparents. At the same time, they did not perceive the maternal grandparents as a good option for permanent placement of the children. Besides the maternal grandparents' age and limited physical and emotional capabilities, and their lack of interest in being permanently responsible for the children on a full-time basis, the Petitioners also had a concern about what they understood to be the maternal grandfather's drinking habits.

5. Instead, since reunification with the mother did not seem feasible to either the Petitioners or to HRS, the Petitioners felt the best option, at least for the boys, would be to investigate their reunification with their fathers. Along with HRS, the Petitioners were instrumental in locating the fathers of the boys and reestablishing contacts between them and their sons. Along with HRS, they actively encouraged and fostered the strengthening of the relationship between the boys and their fathers and worked with HRS to bring the men into a position to begin to care for their sons permanently on a full-time basis.

   
   

6. When the Petitioners became licensed as a child-specific family foster home in approximately March, 1991, they agreed to work within the policies and procedures established by the Department and to accept supervision by a foster care counselor. There was no evidence that they were not supportive of the efforts outlined in the foster care agreement or plan. 6/ But problems between the Petitioners and the maternal grandparents developed between the time of the Petitioners' licensure and September, 1991. The problems got so bad that the HRS counselor assigned to the case had to conduct visitation in his office to ascertain who was causing the problems and how to best resolve them. The problems culminated in the maternal grandparents' ultimatum that they no longer could work with the Petitioners as foster parents and that they wanted the children placed with them, the grandparents.

   
   

7. The problems worsened as HRS began to investigate the possibility of placing the children with the grandparents. 7/ The Petitioners were against this and attempted to use their positions as foster parents to thwart HRS efforts in that direction. A senior HRS counselor replaced the initial counselor in an effort to shepherd the grandparent placement, with its attendant visitations. But, although regular visitations by the grandparents was prearranged during the fall of 1991, 8/ the Petitioners consistently raised various obstacles to the grandparent visitations, requiring multiple interventions by the HRS senior counselor and others at HRS. Three times, despite HRS interventions, visitation had to be cancelled. The Petitioners' case was taking such an inordinate amount of time that the HRS senior counselor went to his supervisor for relief.

   
   

8. The grandparents felt the need to go to court to have the court establish visitation over the Christmas holidays. A hearing had to be held on or about December 10, 1991, and the court granted the grandparents overnight visitation from December 25 through 30, 1991. On inquiring of the children on their return, the Petitioners believed the grandparents did not properly administer prescribed medications for two of the children and accused the grandparents of child abuse. HRS investigated and found that the grandparents had been in direct telephone communication with two of the children's doctors to resolve a discrepancy between two of their medication prescriptions and had followed the telephone instructions of the doctor in charge of the prescription.

   
   

9. In connection with the problems with the grandparents, the Petitioners exhibited a clear tendency to try to manipulate the foster care system to their advantage, even unintentionally to the detriment of the interests of the children, and sometimes, out of overzealousness, through use of untruths and half truths. On one occasion, in an attempt to persuade the first HRS counselor not to pursue placement of the children with the grandparents, they told the counselor that an HRS protective services worker had told them that the maternal grandfather had a drinking problem. In fact, it was the Petitioners who had alleged to the protective services worker that the maternal grandfather had a drinking problem. On another occasion, to avoid allowing the grandparents to pick up the children for visitation, the Petitioners cited a supposed statute or

   rule making it illegal for the grandparents to provide transportation for the children. 9/ Once the boy, B. F., lost a hospital pass for use to visit his grandparents because of problems raised by the Petitioners concerning the legality of the grandparents providing transportation for him.

   
   

10. In addition to the problems with the maternal grandparents, the Petitioners exhibited a certain tendency to take things into their own hands when closer contact and consultation with HRS would have been advisable. Once they made arrangements for one of the boys to be admitted to a psychiatric hospital without consulting with HRS and did not advise the counselor until shortly before admission. To attempt to justify their actions to the HRS counselor, the Petitioner told the counselor that the boy's family therapist strongly favored hospitalization for psychiatric treatment. In fact, the counselor later found that the family therapist only had said that it might become necessary at some point to hospitalize the boy.

    
    

11. Once the Petitioner, Charles Wenz, used corporal punishment on one of the boys although he knew it was against HRS policy for operators of a family foster home to use corporal punishment. He explained that, due to the history of the Petitioners' relationship with these children, the Petitioners felt more like parents than foster parents and that he did not think it was appropriate in their case for the usual prohibition against corporal punishment to apply to them. Later, Mr. Wenz had another occasion to use a form of corporal punishment on the other boy. 10/

    
    

12. In January, 1992, the Petitioners applied to renew their "child- specific" license as a family foster home. On or about February 1, 1992, the court placed the children with the maternal grandparents, and the Petitioners converted their application to one for general licensure as a family foster home.

    
    

    CONCLUSIONS OF LAW

    
    

13. Section 409.175(2)(e), Fla. Stat. (1991), defines the term "family foster home," as used in Section 409.175, to mean "a private residence in which children who are unattended by a parent or legal guardian are provided 24-hour care." However, the statute specifies that a "person who cares for a child of a friend for a period not to exceed 90 days, a relative who cares for a child and does not receive reimbursement for such care from the state or federal government, or an adoptive home which has been approved by the department or by a licensed child-placing agency for children placed for adoption is not considered a family foster home."

    
    

14. Although the record is not clear, it appears from the evidence that the Petitioners cared for the children of N. M. without a family foster home license for a time under one of the exceptions set out in Section 409.175(2)(e) before becoming licensed to act as a family foster home for them. When they became licensed, they were licensed as a "child-specific" family foster home. HRS' authority for issuing a "child-specific" license is not apparent. In any event, when their license came up for renewal, the Petitioners initially applied for relicensure as a "child-specific" family foster home. But when the children were placed elsewhere, they converted their application to one for general licensure as a family foster home (i.e., "non-child-specific").

    
    

15. Normally, and absent a statute specifying otherwise, on an application to renew a license such as one for a family foster home, the burden of proof would be on the regulatory agency to prove that the application for renewal

    should be denied. See Vocelle v. Riddell, 119 So. 2d 809 (Fla. 2d DCA 1960). The facts of this case are somewhat different. Although there is no apparent authority for so limiting family foster home licensure, HRS initially issued the Petitioners a "child-specific" license as a family foster home. The Petitioners initially applied to renew the "child-specific" license but changed their application to one for general licensure as a family foster home. But there is no cogent reason to alter the normal burden of proof in this case, especially since HRS concedes that, in all respects other than the grounds on which HRS gave notice of intent to deny the renewal application, the Petitioners are well qualified for licensure.

    
    

16. Section 409.175(4)(a), Fla. Stat. (1991), mandates that HRS "adopt and amend licensing rules for family foster homes . . .." The statute goes on to list, in paragraphs 1 through 15, mandatory requirements for licensure and operation of a family foster home. HRS contends that the Petitioners "failed to make provisions for preserving and strengthening the foster children's relationship with their family as required in Section 409.175(4)(a)12., Florida Statutes."

    
    

17. Section 409.175(4)(a)12., Fla. Stat. (1991), requires HRS to include among its licensure requirements "provision for parental involvement to encourage preservation and strengthening of a child's relationship with his family."

    
    

18. As for the alleged failure "to make provisions for preserving and strengthening the foster children's relationship with their family as required in Section 409.175(4)(a)12., Florida Statutes," the Petitioners were instrumental in locating two of the children's fathers and reuniting those children with their fathers. It was HRS' position that reunion of the youngest child with either of her parents was not appropriate, and HRS does not fault the Petitioners for failure to "make provisions for preserving and strengthening the foster children's relationship with" those parents. Rather, HRS faults the Petitioners for disrupting the children's visitation with their maternal grandparents and HRS plans to place the children with their maternal grandparents. But Section 409.175(4)(a)12., Fla. Stat. (1991), requires HRS to include among its licensure requirements "provision for parental involvement to encourage preservation and strengthening of a child's relationship with his family." (Emphasis added.) The Petitioners' conduct cannot be said to have violated that statute.

    
    

19. In addition, HRS contends that the Petitioners "lack the ability to work within the policies and procedures established by the Department for foster parents as found in Chapter 10M-6.05(3)(g), Florida Administrative Code." 11/

    
    

20. F.A.C. Rule 10M-6.005(3)(g) provides:

    
    

    (3) Foster Parent Standards. Any exceptions to the following policies and procedures shall be for good cause and subject to the written approval of the district program office.

    * * *

    (g) Foster parent applicants shall agree to work within the policies and procedures estab- lished by the Department, and accept supervision by a foster care counselor.

21. The evidence did not prove that the Petitioners did not "agree to work within the policies and procedures established by the Department" or that they did not "accept supervision by a foster care counselor." And, since the foster care agreement or plan was not in evidence, it could not be found that the Petitioners were not "being supportive of the efforts outlined in the Agreement or Plan," a violation of F.A.C. Rule 10M-6.005(1)(c). However, while agreeing to work within HRS policy and procedure, and accepting supervision by the assigned HRS counselor, the Petitioners did not in fact always work within HRS policy and procedure or always work smoothly under the supervision of the assigned HRS counselor. 12/

    
    

22. F.A.C. Rule 6M-6.145(1) provides:

    
    

    "Relative placement is considered the least restrictive placement of all out-of-home care and is the placement of choice whenever pos- sible. Relative placement must be explored thoroughly and aggressively before children are placed in foster care. Once a child is placed in foster care, exploration of relative placement should continue, and the outcome should be documented at each periodic review.

    
    

    Subparagraphs (a) and (b) of the rule set out factors to be considered in evaluating the merits of a "relative placement."

    
    

23. F.A.C. Rule 6M-6.146(3) provides: "The department shall arrange for visits of increasing lengths to the parents, relatives, custodians or potential custodians prior to actual removal from foster care as part of the reunification plan."

    
    

24. F.A.C. Rule 6M-6.137(2) provides:

    
    

    Successful efforts toward family reunification require frequent contact between parents and their children in foster care. This visitation serves to maintain and strengthen constructive family ties, to help develop improved

    parent-child interaction, to help foster mutual recognition and understanding of family problems, to provide opportunities for the

    parent to assume a degree of parental responsi- bility appropriate to the circumstances of each situation, and to assess parental potential and interest in the return of the child. Well-planned visits between foster children and their parents, siblings and other significant family members are crucial to the day-to-day well-being of children and to the movement toward appropriate resolution of case issues.

    
    

    (Emphasis added.)

    
    

25. The Petitioners essentially disagreed with HRS on placement of the children with the maternal grandparents and had numerous personal conflicts with both HRS and the maternal grandparents regarding the children's visitation with and placement with the maternal grandparents. Whether or not the visitation was

    court-ordered, the Petitioners disrupted the children's visitation with their maternal grandparents and HRS plans to place the children with their maternal grandparents. Despite extensive HRS interventions, three times scheduled visitation could not be accomplished. Ultimately, the Petitioners accepted the HRS determination, and the court order, to place the children with their maternal grandparents.

    
    

26. In assessing the appropriate disposition in this case, it should be noted that there can exist an inherent tension between the rule provisions which generally require a foster parent to go along with the HRS-sanctioned plan for the foster child, and other parts of F.A.C. Rule Chapter 10M-6.

    
    

27. F.A.C. Rule 10M-6.005 provides in pertinent part:

    
    

    1. General.

       * * *

       (c) Foster parents shall be involved and participate in case planning for children placed in their homes, which includes co- operating with the Department to implement visitation for children with their parents and being supportive of the efforts outlined in the Agreement or Plan as mandated in Section 409.618(3)(a)7., F.S.

       * * *

       (e) Foster parents shall consistently inform the foster care counselor of changes in . . . relationships which may affect the lives of foster children in their homes.

       
       

28. F.A.C. Rule 6M-6.136(4) provides: "Permanent placement plans shall be prepared by the department with the participation of the foster parent, the child, if appropriate, the guardian ad litem, if appointed, and others involved in planning and delivering services to these children."

    
    

29. In essence, in this case, HRS is engaged in drawing the line between appropriate involvement by the foster parent in the decisions affecting the welfare of the ward, as required by F.A.C. Rule 10M-6.005(1)(c), on the one hand, and inappropriate over-attachment to the child and over-involvement in those decisions, on the other hand. The line-drawing process can be subjective in nature. In some cases, one HRS administrator's effective foster parent may be another's "troublemaker," and care must be taken to avoid a misuse of the process as a crass means of eliminating administrative "headaches."

    
    

30. In this case, the Petitioners crossed the line. They not only questioned HRS' plans to place the children with their maternal grandparents, they ceased to be supportive of HRS and became obstacles in the way of the children's visitation with and placement with their maternal grandparents.

    
    

31. However, it also is evident from the Findings of Fact that, before the Petitioners ever became foster parents, they had acquired a special attachment for their wards, especially the youngest child, as well as a prior knowledge of and acquaintance with the maternal grandparents. It need not be assumed that their care of other children would follow the same pattern as their care of the specific children for whom they previously were licensed, and in all other respects HRS does not dispute that the Petitioners are well qualified to act as

foster parents. If the pattern of the past repeats itself when the Petitioners are assigned other children, proceedings could be initiated to revoke their license.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Petitioner, the Department of Health and Rehabilitative Services (HRS), enter a final order granting the application of Charles Wenz and Janet Gallagher for general licensure as a family foster home.

RECOMMENDED this 13th day of July, 1992, in Tallahassee, Florida.

J. LAWRENCE JOHNSTON 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 13th day of July, 1992.

ENDNOTES

1/ See Preliminary Statement, below.

2/ It is not apparent from the record or evidence in this case by what authority HRS limited the Petitioners original licensure to the care of specific children. See the Findings of Fact, below.

3/ At this point, it appeared that the Petitioners' application was for renewal of their licensure, and it was anticipated that HRS would bear the burden of proof. See Conclusions of Law, below. But the evidence revealed that the Petitioners never had been licensed generally as a family foster home. Rather, they had been licensed as a "child-specific" family foster home. However, the evidence disclosed no authority for issuance of a "child-specific" family foster home, and there is no cogent reason in this case to shift the burden of proof to the Petitioners. See Conclusions of Law, below.

4/ Initials are being used to identify the natural parents and the children in lieu of full names in order to maintain confidentiality.

5/ It is not apparent from the evidence by what authority HRS limited the Petitioners original licensure to the care of these specific children.

6/ The foster care agreement or plan was not put in evidence, or described by testimony, and the evidence did not prove that the Petitioners were not supportive of any of its provisions.

7/ The official plans for the children were not put in evidence, and it is not clear from the evidence when the official plans were changed to reflect the new goal of placing the children with their maternal grandparents. However, it was clear to the Petitioners that HRS had decided to embark on such a plan and was commencing the process of implementing the plan.

8/ There was some testimony to the effect that the visitation schedule was established by the court, but there was countervailing testimony that it was established by agreement.

9/ No such statute or rule ever was identified during the course of the hearing.

10/ It was not clear from the evidence exactly what occurred in this second case. Hearsay statements described possible physical child abuse, but the only evidence on which a finding of fact could be based--the testimony of the boy himself--was to the effect that Mr. Wenz grabbed the boy by the shoulder while berating him verbally.

11/ Although not specifically cited by HRS in this case, Section 409.175(8)(b)2., Fla. Stat. (1991), authorizes HRS to deny, suspend, or revoke a license on the ground of a "violation of the provisions of this section or of licensing rules promulgated pursuant to this section."

12/ See footnote 11, above.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-2470

To comply with the requirements of Section 120.59(2), Fla. Stat. (1989), the following rulings are made on the parties' proposed findings of fact:

1. Petitioners' Proposed Findings of Fact.

   
   

   1. Generally accepted and incorporated to the extent not subordinate or unnecessary.

   2. Generally accepted and incorporated to the extent not subordinate or unnecessary. However, the evidence was not clear precisely when or how HRS became involved or precisely what the legal custody arrangements were at various points in time.

   3. Accepted and incorporated to the extent not subordinate or unnecessary.

   4. Generally accepted and incorporated to the extent not subordinate or unnecessary. However, the evidence was not clear whether the court separated the children in the order entered February 1, 1992, or whether the separation occurred at a later date.

   5. Accepted and subordinate to facts found.

   6. The characterization "consistently" is rejected as not proven; otherwise, accepted and incorporated.

   7. Second sentence, rejected as not proven (except as stated in the Findings of Fact). First sentence, accepted and incorporated to the extent not subordinate or unnecessary.

   8.-9. Accepted and incorporated.

   10.-15. Accepted and incorporated to the extent not subordinate or unnecessary.

   1. Generally accepted and incorporated to the extent not subordinate or unnecessary. However, the evidence was not clear whether the court separated the children in the order entered February 1, 1992, or whether the separation occurred at a later date.

   2. Third sentence, rejected as not proven. (Findings of fact on this incident can be based only on the child's testimony.) First two sentences, accepted and incorporated to the extent not subordinate or unnecessary.

   
   

2. Respondent's Proposed Findings of Fact.

1.-3. Accepted and incorporated.

1. Last two sentences (i.e., the remarriage and absence of blood relationship), rejected as not clear from the evidence. Otherwise, accepted and incorporated.

2. Second sentence (i.e., the dependency proceedings and declaration of dependence), rejected as not clear from the evidence. Otherwise, accepted and incorporated.

6.-8. Accepted and incorporated to the extent not subordinate or unnecessary.

1. First sentence, accepted but subordinate. Second sentence, accepted (i.e., no court order was put in evidence, and HRS did not prove that a court order was specifically violated.)

2. Accepted and incorporated. (The agreements were not placed in evidence, but it can be inferred from the HRS allegations, the defense and the totality of the evidence that reunification with the parents initially was the long-term goal.)

3. Accepted and incorporated.

4. See 10., above. (It was not clear from the evidence how or when the long- term goals in the agreements were changed.)

5. Second part of the second sentence, rejected as not supported by the evidence. (The "Caregiver's Manual," from which this proposed finding apparently was taken, was not placed in evidence, and no such finding can be made.) Otherwise, accepted and incorporated to the extent not subordinate or unnecessary.

6. Accepted but subordinate.

COPIES FURNISHED:

Richard C. Reinhart, Esquire Reinhart & Moreland

538 Old Main Street Bradenton, Florida 34205

Raymond R. Deckert, Esquire Department of Health and

Rehabilitative Services District 6 Legal Office

W. T. Edwards Facility

4000 West Dr. M. L. King, Jr., Blvd. Tampa, Florida 33614

R. S. Power, Esquire Assistant General Counsel Agency Clerk

Department of Health and Rehabilitative Services

1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

John Slye, Esquire General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

ALL PARTIES HAVE THE RIGHT TO SUBMIT TO THE DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST TEN DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. SOME AGENCIES ALLOW A LARGER PERIOD WITHIN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONSULT WITH THE DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES CONCERNING ITS RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO THIS RECOMMENDED ORDER.

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES

CHARLES WENZ and JANET GALLAGHER,

Petitioners, CASE NO.: 92-2470 RENDITION NO.: HRS-92-374-FOF

vs.

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 July 13, 1992, by Hearing Officer J. Lawrence Johnston is incorporated by reference.

RULING ON EXCEPTIONS

Counsel for the department excepts to the Hearing Officer's conclusion that petitioner's disruption of the childrens' visitation with their grandparents was not a violation of Section 409.175(4)(a)12, Florida Statutes. The statute requires foster parents to "make provision for parental involvement to encourage

preservation and strengthening of a child's relationship with his family." (emphasis added). The plain language of the statute requires foster parents to provide for parental involvement, which was done by petitioner's. Thus, petitioner's did not violate this statute.

Counsel excepts to conclusion of law 9. Although labeled as a conclusion of law, the paragraph is a comment on the weight of the evidence. The Hearing Officer found that petitioners "... did not in fact always work within HRS policy and procedure or always work smoothly under the supervision of the assigned HRS counselor." The Hearing Officer's finding in this paragraph as well as findings of fact 6, 7, 9, 10, and 11 constitute violations of the rule requirement that foster parents work within policies of the department and accept supervision by HRS. Section 10M-6.005(3)(g), Florida Administrative Code. See also conclusion of law 9 wherein the Hearing Officer noted that petitioners "... ceased to be supportive of HRS and became obstacles in the way of the children's visitation and placement with their maternal grandparents."

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 this Final Order. In summary, the Hearing Officer concluded that petitioner's compromised their role as foster parents; they "... exhibited a clear tendency to try to manipulate the foster care system to their advantage, even unintentionally to the detriment of the interests of the children, and sometimes out of overzealousness, through use of untruths and half truths." See finding of fact 9. An inordinate amount of staff time was required to cope with the problems caused by petitioners. See finding of fact 7. Nevertheless, the Hearing Officer recommended that the petitioners be given another chance on the assumption that if they are assigned other children the problems of the past would not be repeated. See conclusion of law 19. I disagree. The decision should be based on petitioners' track record, not speculation.

The factual findings of the Hearing Officer support denial of the application. See Goss vs. District School Board of St. Johns County, opinion dated June 12, 1992, DCA Number 91-1785, 17 FLW D1461.

Based upon the foregoing, it is

ADJUDGED, that the application of Charles Wenz and Janet Gallagher for a license to provide foster home care for dependent children be DENIED.

DONE and ORDERED this 10th day of August, 1992, in Tallahassee, Florida.

Robert B. Williams Secretary

Department of Health and Rehabilitative Services

by Deputy Secretary for Human Services

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 to:

Richard C. Reinhart, Esquire REINHART & MORELAND

538 Old Main Street Bradenton, FL 34205

Raymond Deckert, Esquire Department of Health and

Rehabilitative Services

W. T. Edwards Facility District 6 Legal Office 4000 W. Dr. Martin Luther King, Jr., Boulevard Tampa, FL 33614

J. Lawrence Johnston Hearing Officer

DOAH, The DeSoto Building 1230 Apalachee Parkway

Tallahassee, FL 32399-1550

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing was sent to the above named people by U.S. Mail this 14th day of August, 1992.

R. S. Power, Agency Clerk Assistant General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, FL 32399-0700

(904)488-2381

Docket for Case No: 92-002470

Orders for Case No: 92-002470