STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

vs. ) CASE NO. 95-1556

) CAROL A. LEZDEY and ALEX LEZDEY, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its designated Hearing Officer, Joyous D. Parrish, held a formal hearing in the above-styled case on September 26, 1995, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Carole C. Wilhelm

Department of Health and Rehabilitative Services

201 West Broward Boulevard, Number 502 Fort Lauderdale, Florida 33301

For Respondent: Carol A. Lezdey and Alex Lezdey, pro se

9711 Northwest 20th Street Coral Springs, Florida 33701

STATEMENT OF THE ISSUES

The central issue in this case is whether the Respondents' foster care license should be renewed.

PRELIMINARY STATEMENT

This case began on February 1, 1995, when the Department of Health and Rehabilitative Services (Department) notified Respondents, Carol A. Lezdey and Alex Lezdey, that their foster home license was being placed on an inactive status and that it would not be recommended for annual renewal. Respondents timely challenged the agency action and requested an administrative hearing.

The case was forwarded to the Division of Administrative Hearings for formal proceedings on March 27, 1995.

At the hearing, the Department presented the testimony of Margaret Andrews, the supervisor of the foster care licensing unit; and Bernardine M. Suppa, M.S., the program manager for foster care treatment. The Department's exhibits numbered 1 through 10 were admitted into evidence.

The Respondents testified on their own behalf and offered the testimony of their daughter, Donna. The Respondents' exhibits numbered 1 through 35 have been admitted into evidence.

The parties were granted ten days from the hearing to file their proposed recommended orders. Specific rulings on the proposed findings of fact are included in the appendix at the conclusion of this order. A transcript of the proceeding has not been filed.

FINDINGS OF FACT

1. At all times material to this case, the Respondents operated a foster home in Broward County, Florida, pursuant to a license that was issued by the Department in January, 1994.

   
   

2. In March, 1994, the Department placed a foster child, M.A.G., in the Respondents' home.

   
   

3. This child, M.A.G., was an extremely troubled girl whose interfering biological family kept her in an emotional state of constant turmoil.

   
   

4. The "Visitation Reports" introduced into evidence by the Department reflect that the child's adjustment to placement with the Respondents went from "good" to "fair." As the contacts with her family continued, the child's progress with the Respondents deteriorated. The evaluation reflects that the placement went from meeting the child's needs to not meeting the child's needs as of a December 14, 1994 visit. In fact, Respondents asked the Department to remove M.A.G. from their home.

   
   

5. Ms. Suppa described the family relationship between M.A.G. and the Respondents as "tumultuous." The contacts between M.A.G. and her biological family caused severe unrest within the home as M.A.G. was torn between her biological family and her growing interest in the Respondents.

   
   

6. M.A.G.'s emotional problems were not unusual for children in the custody of the Department. In fact, many foster children in the custody of the Department have emotional problems.

   
   

7. Ms. Suppa was involved in family therapy with the Respondents and

   M.A.G. from October, 1994, to the time M.A.G. was removed from the Respondents' home on January 6, 1995. Ms. Suppa verified that the Respondents did not abuse

   M.A.G. Ms. Suppa acknowledged that Respondents did not provide the necessary emotional support that M.A.G. needed, and recommended to the Department that the placement be changed. Ms. Suppa could not state what the Respondents could have done, which they did not try, to avoid the incident complained of by the Department.

   
   

8. M.A.G. spoke of suicide on occasions but Respondents did everything asked of them to assist the girl.

   
   

9. On December 18, 1994, M.A.G. was voluntarily admitted to the Florida Medical Center for psychological testing following an incident that occurred in the Respondents' home. On this occasion, M.A.G. had a knife in her hands and threatened to kill herself. The Respondents called the police to assist them. On release, M.A.G.'s emotional state continued to deteriorate despite Respondents' best efforts.

10. Respondents took M.A.G. to counseling. They never missed a counseling session and willingly agreed to explore any options that were suggested.

    
    

11. When M.A.G. chose to spend the 1994 holidays with Respondents, she was cursed by her sister and ignored by her grandmother. This caused a serious depression.

    
    

12. M.A.G.'s biological mother did not attend her appointed counseling sessions. M.A.G. was disappointed since she had hoped to see her mother.

    
    

13. On December 28, 1994, M.A.G. missed one dose of her medication. No conclusion is reached that this omission led to, or caused, the incident of January 3, 1995.

    
    

14. On January 3, 1995, M.A.G. had to be Baker Acted. She was again admitted to the Florida Medical Center for psychological testing and treatment following an incident that occurred in the Respondents' home. Once again M.A.G. had threatened to kill herself with a knife.

    
    

15. Since being moved from Respondents' home M.A.G. has progressed and is no longer on medication. No conclusion is reached from this progress, however, since M.A.G.'s biological family's contact with her is unknown. M.A.G. had a strong loyalty to her biological family.

    
    

16. Respondents have been foster parents for many years in New York. This was the first incident wherein a foster child could not adjust to the Respondents' home.

    
    

17. The Respondents tried everything within their control to make the foster relationship with M.A.G. work out.

    
    

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

    
    

19. Section 409.175, Florida Statutes, provides in pertinent part:

    
    

    409.175 Licensure of family foster home, residential child-caring agencies, and child- placing agencies.

    (1)(a) The purpose of this section is to protect the health, safety, and well-being of all children in the state who are cared for by family foster homes, residential child-caring

    agencies, and child-placing agencies by providing for the establishment of licensing requirements for such homes and agencies and providing procedures to determine adherence to these requirements.

    * * *

    (4)(a) The department shall adopt and amend licensing rules for family foster homes...The requirements for licensure and operation of family foster homes...shall include:

    2. The provision of food, clothing,...and individual supplies to assure the healthy physical, emotional, and mental development of the children served.

    
    

20. Rule 10M-6.128(1)(c) provides that the foster child has the right to "have a healthy life-style and maintenance of optimal physical and emotional well-being."

    
    

21. Rule 10M-6.130(5)(c) provides that the foster parent has the responsibility to "understand a child's problems and help to find solutions." In this case, the Respondents attempted to find solutions to assist M.A.G. and cooperated fully with all suggestions made to them. They attended counseling, supported M.A.G., and when it become a concern that they would not meet all her needs, voluntarily sought a new placement for her. The Department did not

    remove the child until the problems escalated and the situation had deteriorated to a point of no resolve.

    
    

22. The Department's concern for the suitability of foster homes is mandated by the law. In this case, it cannot justify the nonrenewal of Respondents' license merely because this child proved too difficult a case. The Respondents sought assistance and attempted to meet this child's needs by performing as requested by the Department. Curiously, once the child's contact with her biological family became limited, the conduct improved.

RECOMMENDATION

Based on the foregoing, it is, hereby, RECOMMENDED:

That the Department of Health and Rehabilitative Services enter a final order approving Respondents' request for licensure renewal.

DONE AND RECOMMENDED this 2nd day of November, 1995, in Tallahassee, Leon County, Florida.

JOYOUS D. 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 2nd day of November, 1995.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-1556

Rulings on the proposed findings of fact submitted by the Petitioner:

1. Paragraphs 1, 2, 3, 6, 7, 9, and 11 are accepted.

2. Paragraphs 4, 5, 8, 10, 12, 13 and 14 are rejected as irrelevant or not supported by the weight of credible evidence.

Rulings on the proposed findings of fact submitted by the Respondents:

1. Paragraphs 1, 2, 3, 4, 5, 8, and 9 are accepted.

2. Paragraphs 6, 7, 10, 11, and 12 are rejected as irrelevant or comment.

COPIES FURNISHED:

Robert L. Powell Agency Clerk

Dept. of Health and Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Kim Tucker General Counsel

Dept. of Health and Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Carole C. Wilhelm Department of Health and Rehabilitative Services

201 W. Broward Boulevard

Fort Lauderdale, Florida 33301

Carole A. and Alex Lezdey 9711 N.W. 20th Street

Coral Springs, Florida 33701

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: 95-001556

Orders for Case No: 95-001556