STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TINA POOLE, )

)

Petitioner, )

)

vs. ) CASE NO. 95-0312

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on March 1, 1995, by video teleconference with all parties and witnesses in Miami, Florida, and the Hearing Officer, Michael M. Parrish, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Ms. Tina Poole, pro se

9950 Southwest 222 Terrace

Miami, Florida 33190

For Respondent: Colleen Farnsworth, Esquire

Department of Health and Rehabilitative Services

401 Northwest Second Avenue, Suite N-1014 Miami, Florida 33128

STATEMENT OF THE ISSUE

The issue in this case is whether Petitioner's application to adopt or become the foster parent of T. D. and T. D.'s child K. W. should be granted or denied.

PRELIMINARY STATEMENT

At the formal hearing on March 1, 1995, the Petitioner testified on her own behalf and also presented the testimony of two other witnesses. The Respondent presented the testimony of three witnesses. Neither party offered any exhibits. 1/

At the conclusion of the hearing neither party ordered a transcript of the hearing. The parties requested, and were granted, fifteen days from the date of the hearing within which to file their proposed recommended orders. On March 16, 1995, both parties filed timely proposed recommended orders containing proposed findings of fact and conclusions of law. All proposed findings of fact submitted by all parties are specifically addressed in the appendix to this Recommended Order.

FINDINGS OF FACT

1. The Petitioner, Tina Poole, wishes to adopt or become the foster parent of T. D. and T. D.'s infant child, K. W. The Petitioner is 27 years old. The Petitioner has six biological children of her own. The Petitioner's biological children range in age from approximately 9 years old to approximately 2 years old. Four of the Petitioner's biological children live with the Petitioner on a full time basis. One of the Petitioner's biological children lives with the Petitioner six months of each year and with the child's father the other six months of the year. One of the Petitioner's biological children lives on a full time basis with the child's paternal grandmother.

   
   

2. Each of the Petitioner's biological children has a different father. This is indicative of instability in the Petitioner's home environment. It also indicates that the Petitioner lacks emotional and psychological maturity. 2/

   
   

3. The Petitioner and T. D. met at a time when both of them were living in Lake City, Florida. T. D., is approximately 16 years old. T. D. has a biological child, K. W., who is approximately one year old. The Petitioner has known T. D. since September of 1992 and has developed a close personal relationship with T. D. The Petitioner was especially helpful to T. D. and supportive of T. D. during T. D.'s pregnancy and during the first few months after T. D.'s baby was born. When the Petitioner found out that T. D. was living in foster care, the Petitioner and T. D. spoke to someone at the Department's adoption unit to request that the Petitioner be allowed to adopt T.

   D. While that request was pending, the Petitioner moved to Miami. Once the Petitioner had settled into her home in Miami, she contacted someone in the Department's Miami office regarding the status of her request to adopt T. D.

   
   

4. After reviewing the matter, the Department staff advised the Petitioner that they could not recommend approval of the adoption request, but that it might be possible for the Petitioner to be approved as a foster parent for T. D. and K. W. Thereupon, the Petitioner applied for a special foster care license to become a foster parent for T. D. and K. W.

   
   

5. The Petitioner does not have a stable employment history. For large periods of time her only predictable income has been from AFDC. The Petitioner recently obtained part-time employment at a fast food restaurant, but there is no certainty as to how long the Petitioner will remain so employed. As of the time of the formal hearing, the Petitioner's regular monthly income sources were approximately as follows: 3/

   
   

   Part-time employment	$400.00
   AFDC	422.00
   Food stamps	400.00
   TOTAL MONTHLY INCOME	$1,222.00

   
   

6. As of the time of the hearing the Petitioner's monthly expenses for rent and electricity were approximately $450.00. The record in this case does not contain any information about the Petitioner's other expenses for caring for herself and her biological children.

   
   

7. Visits to the Petitioner's home in Miami established that the children being cared for by the Petitioner were receiving good care. The Petitioner's home was well furnished 4/ and was adequate for the needs of the Petitioner

   and her biological children who were living there. The evidence is insufficient as to whether the Petitioner's home would be adequate for two additional children.

   
   

8. The Petitioner is a single parent. The Petitioner was charged with welfare fraud on at least one occasion. As part of the disposition of the welfare fraud charge, the Petitioner is currently paying "recoupment" of $24.00 per month to repay welfare payments to which she was not entitled.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57, Florida Statutes.

   
   

10. In a case of this nature the applicant bears the burden of demonstrating entitlement to the relief sought. See Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977); Florida Department of Transportation v. J.W.C., Co., 396 So.2d 778, 788 (Fla. 2nd DCA 1981). If the evidence is insufficient, the relief sought must be denied.

    
    

11. With regard to the Petitioner's desire to adopt T. D. and K. W., Rule 10M-8.0054(1), Florida Administrative Code, provides in pertinent part: 5/

    
    

    1. Adoptive applicants must be helped to understand that the department reserves the right to reject the application of any applicant who does not meet its eligibility criteria as outlined in sections 10M-8.005 and 10M-8.0051, 10M-8.0052 and 10M-8.0053.

       
       

12. The evidence in this case is insufficient to demonstrate the Petitioner's eligibility under the criteria set forth in Rules 10M-8.005, 10M- 8.0051, 10M-8.0052 and 10M-8.0053. Further, the evidence affirmatively establishes that the Petitioner does not meet certain of the criteria. Specifically, the Petitioner's age, the Petitioner's lack of emotional maturity, the Petitioner's marital status, the Petitioner's economic circumstances and employment status, and the number of children already in the Petitioner's care all contraindicate adoption pursuant to specific rule criteria. 6/

    
    

13. With regard to the Petitioner's application to obtain a foster care license in order to become a foster parent to T. D. and K. W., Rule 10M-6.025, Florida Administrative Code, sets forth the minimum standards by which applications must be evaluated. The evidence in this case is insufficient to demonstrate the Petitioner's eligibility under the criteria set forth in rule 10M-6.025, Florida Administrative Code. Further, the evidence affirmatively establishes that the Petitioner does not meet certain of the criteria. Specifically, the Petitioner's age, the Petitioner's lack of emotional maturity, the Petitioner's marital status, the Petitioner's economic circumstances and employment status, and the number of children already in the Petitioner's care all contraindicate licensure as a foster care parent pursuant to specific rule criteria. 7/

RECOMMENDATION

On the basis of all of the foregoing , it is RECOMMENDED that the Department of Health and Rehabilitative Services issue a Final Order in this case denying the Petitioner's applications to adopt or become a foster care parent for T. D. and K. W.

DONE AND ENTERED this 29th day of March 1995 in Tallahassee, Leon County, Florida.

MICHAEL M. PARRISH

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 29th day of March 1995.

ENDNOTES

1/ The Petitioner attached photocopies of three documents to her proposed recommended orders. These documents have not been treated as exhibits because they were not offered at the hearing.

2/ In the Petitioner's own words, she was "looking for love in all the wrong places."

3/ The Petitioner also testified that she received income of approximately

$150.00 per week by providing hair arrangement services in her home. The testimony indicated that the Petitioner provides these services free as often as she charges for them. The testimony also revealed that the Petitioner is not licensed to provide such services. Accordingly, the Petitioner's hair arranging activities do not appear to be a predictable or stable source of income. The Petitioner also receives occasional financial assistance from some friends and relatives, but these sources of assistance are not regular or predictable.

4/ The paternal grandmother of one of the Petitioner's children co-signed a note so the Petitioner could buy furniture on credit.

5/ Rule 10M-8.0054(1), Florida Administrative Code, also notes that adoptive applicants who are rejected are entitled to a hearing pursuant to Section 120.57, Florida Statutes.

6/ See, especially, the criteria in the following rule provisions: 10M- 8.005(6)(e) regarding energy and physical stamina, 10M-8.005(6)(f)1, regarding the importance of two-parent families, 10M-8.005(6)(h) regarding income and resources, 10M-8.005(6)(k) regarding working parents, and 10M-8.0051(2) regarding emotional maturity.

7/ See, especially, the criteria in the following rule provisions: 10M- 6.025(1)(a) regarding two-parent families and relief personnel in one-parent families, 10M-6.025(2)(a) and (b) regarding age and psychological maturity of substitute parents, 10M-6.025(5) regarding income, and 10M-6.025(6) regarding employment and care for children under school age.

APPENDIX

The following are the specific rulings on all proposed findings of fact submitted by all parties.

Findings submitted by Petitioner

The Petitioner submitted findings of fact comprised of several unnumbered paragraphs. The basic substance of all of those proposed findings has been included in the findings of fact in this Recommended Order, but a large number of details have been omitted as unnecessary or subordinate. (The findings of fact in this Recommended Order do not include the substance of all of the assertions that appear in the "Conclusions" portion of the Petitioner's proposed recommended order. Many of those assertions are argumentative rather than factual.)

Findings submitted by Respondent

Paragraph 1: Rejected as subordinate and unnecessary details. (This is a de novo proceeding; not a review of the Department's preliminary decision- making.)

Paragraph 2: Accepted in substance.

Paragraph 3: Rejected as subordinate and unnecessary details. Paragraphs 4 and 5: Accepted in substance.

Paragraph 6: Rejected as a summary of testimony rather than proposed findings of fact.

Paragraph 7: Rejected as subordinate and unnecessary details. (This is a de novo proceeding; not a review of the Department's preliminary decision- making.)

Paragraph 8: Rejected as procedural details not necessary to be included in findings of fact.

COPIES FURNISHED:

Ms. Tina Poole, pro se 9950 Southwest 222 Terrace

Miami, Florida 33190

Colleen Farnsworth, Esquire Department of Health and

Rehabilitative Services

401 Northwest 2nd Avenue, Suite N-1014 Miami, Florida 33128

Robert L. 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

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 ten 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: 95-000312

Orders for Case No: 95-000312