STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
CHRISTOPHER MURPHY, )
)
Petitioner, )
)
vs. ) CASE NO. 95-4150
)
DEPARTMENT OF HEALTH AND )
REHABILITATIVE SERVICES, )
)
Respondent. )
)
RECOMMENDED ORDER
A formal administrative hearing was held in this case on March 8, and on April 25, 1996, before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings. The March 8 session of the hearing took place in Orlando, Florida; the April 25 session was conducted by televideo conferencing, with the Hearing Officer located in Tallahassee and the other participants located in Orlando.
APPEARANCES
For Petitioner: Ann E. Colby, Esquire
305 Elkhorn Court
Winter Park, Florida 32792
For Respondent: Laurie A. Lashomb, Esquire
Department of Health and Rehabilitative Services
400 West Robinson Street, Suite S-827 Orlando, Florida 32801
STATEMENT OF THE ISSUE
The issue in this case is whether HRS should grant the Petitioner's application a license to operate a foster care home for dependent children.
PRELIMINARY STATEMENT
The Petitioner applied for licensure on or about May 3, 1995. By letter dated July 11, 1995, HRS gave notice of intent to deny licensure. The Petitioner timely requested formal administrative proceedings, and the matter was referred to the Division of Administrative Hearings (DOAH) on August 23, 1995.
Initially, the case was set for final hearing on January 9, 1996, but the Petitioner's Motion for Continuance was granted, and it was later rescheduled for March 8, 1996.
At final hearing on March 8, the Petitioner had Exhibits 1 and 2 through 11 admitted in evidence and called two witnesses, but the hearing could not be completed in the time allotted, and it was continued to a later date. On March 25, 1996, an Order Continuing Final Hearing (by video teleconference) to April 25, 1996, was issued. At the continuation of the final hearing, the Petitioner called four more witnesses, and HRS called its licensing administrator.
After presentation of the evidence, HRS ordered the preparation of a transcript of the final hearing, and the parties were given ten days from the filing of the transcript in which to file proposed recommended orders. The transcript was filed on May 13, 1996. The Petitioner's Proposed Recommended Order was filed on May 22, 1996; HRS's Proposed Recommended Order was filed on June 3, 1996. Explicit rulings on the proposed findings of fact contained in the parties' proposed recommended orders may be found in the Appendix to Recommended Order, Case No. 95-4150.
FINDINGS OF FACT
The Petitioner, Christopher Murphy, is a single male, born July 27, 1966. He wants to be a foster care parent for up to two teenagers, same sex, including those with a history of having been abused.
In approximately September, 1994, the Petitioner approached the Children's Home Society (CHS), located in Orlando, Florida, to inquire about applying for licensure to operate a foster care home for dependent children.
CHS is and was under contract with the Department of Health and Rehabilitative Services (HRS) to screen prospective licensees. The screening process included, among other things: interviews with the Petitioner; a home study; review of written personal references on behalf of the Petitioner; evaluation of the Petitioner's participation in the HRS-approved Model Approach to Partnerships in Parenting (MAPP) program.
After conducting its training and screening of the Petitioner, CHS recommended the Petitioner for licensure "for two children, same gender, ages 12 to 18 years," and the Petitioner filed his application for licensure on or about May 3, 1995.
The Petitioner and the "relief persons" he designated in his application underwent background screening, and no disqualifying information was found. However, by letter dated July 11, 1995, HRS gave notice of intent to deny the Petitioner's application for the following reasons:
According to Florida Administrative Code Chapter 10M-6, it is the opinion of the Department that based on your own experience with depression, your single lifestyle and your sexual orientation that your desire to be a foster parent is not in the best inte- rest of the children in the custody of Health and Rehabilitative Services.
You have indicated that you have doubts about your ability to work with HRS in seeking rehabilitation of the families with children in foster care, that you have limited patience with bureaucracy, and that you would not like to see the foster children in your care return
to their parents. Professional counseling to relieve distress over your sexual orientation did not resolve that issue. These consider- ations lead HRS to believe that it would not be in the best interest of children in state custody to be placed with you in foster care.
The Petitioner's Mental and Emotional Status
The evidence is that the Petitioner experienced some difficulties growing up as one of ten siblings. His mother was very religious but, at the same time, appears to have been a strict disciplinarian and, at times, almost "cruel" to the children. In addition, the Petitioner tended to be a loner during his early years. He was physically weak and was susceptible to being bullied by other children. In addition, he played differently from other boys his age, preferring to spend his time reading Jane Austen and the Bronte sisters rather than playing with friends.
As the Petitioner grew older, he increasingly recognized signs that he was homosexually oriented. These signs disturbed him because a homosexual orientation was contrary to his desires and to what he understood to be the morals of his family and religion.
When the Petitioner went to college in the mid-1980's, he still would have been considered a "social isolate," and the combination of stresses from leaving home, living on his own at college and dealing with his sexual orientation resulted in depression requiring individual psychotherapy and medication (at first Impramine and later, in 1992, Prozac). Dealing with his mother's death in 1988 caused the depression to recur, but the Petitioner was able to recover with the help of the psychotherapy and medication.
Since 1988, the Petitioner has suffered periodic bouts of mild depression. (Medication he takes for rapid heartbeat tends to cause some depression as a side effect.) However, the Petitioner's major depression is in remission, and he has been able to control the mild depression by the appropriate use of medication. The Petitioner's physicians advise him to continue on medication and seek therapy as necessary.
In recent years, the Petitioner has resolved his conflicted feelings about his mother, as well as many of the conflicts he had with members of his family.
The Petitioner also has made great strides to resolve his conflicted feelings about his sexual orientation. At the same time, he still rejects the values and lifestyle of the gay world and continues to accept most of the basic tenets of traditional values and lifestyle. As a result, there is no indication that the Petitioner is trying to use the foster parent program in order to make a political statement about gay rights. However, the difficulty the Petitioner will continue to face is that traditional society does not necessarily always accept him. This probably will make being a foster parent more difficult for the Petitioner.
The Petitioner also has made considerable progress making and maintaining viable personal relationships. He has been able to work responsibly and well in the positions he has held with Universal Studios in Orlando and has made and maintained several positive and valuable friendships through work and elsewhere. In the words of a licensed psychologist who evaluated him in August-
September, 1995, the Petitioner is "on the mend" in this regard; by this he meant that the Petitioner is making good progress in the right direction.
If major depression were to recur, the Petitioner obviously would have difficulty persevering, and probably would be unable to persevere, in seeing a foster child through to the end of his or her temporary placement. But in recent years the Petitioner has been able to control depression by appropriately using his antidepressant medication, monitoring himself for symptoms of depression, and seeking appropriate therapy as needed. As long as he continues to do so, it is not anticipated that major depression will recur. HRS has licensed others with mental and emotional status similar to the Petitioner to be foster parents.
It is true that there is a possibility that the stress of being a foster parent could cause the Petitioner's depression to recur. In many ways, teenage is the most difficult age bracket for foster care, and abused teenagers can present even greater difficulties. But HRS maintains control over the children to be placed with the Petitioner, and an effort could be made not to place the most difficult foster care challenges with the Petitioner, at least initially. In addition, HRS and the Petitioner could cooperate in monitoring the effects that the stress of being a foster parent have on the Petitioner. There is a good chance that the Petitioner's depression will not recur as a result of being a foster parent.
The Petitioner's Parenting Experience
The Petitioner has no children of his own and has no parenting experience. He grew up in a family of ten children but tended to spend much of his time apart from them. The Petitioner did some baby-sitting during his teens. But otherwise, through his college years, the Petitioner did not exhibit much inclination or desire to be around or work with children.
The Petitioner changed as he reached adulthood. He now has a very strong desire to help teenage children by acting as their foster parent. In recent years, he has had the opportunity to work with families having their pictures made at the Universal Studios park in Orlando and has found that he had success interacting with the young members of those families. While he has not had much experience taking care of teenagers, he also has enjoyed spending considerable time in recent years interacting with the young children of friends and other family members. (Living in the a vacation center, many siblings and other members of his family have taken advantage of the opportunity to visit him since he moved to Orlando.) The Petitioner seems to interact well with the children in several arenas--facilitating play, sharing snacks and meals, helping with homework, going on picnics and other outings, suggesting and participating in other positive family activities. His friends' children like him, and his friends trust him with tending to their children.
On the other hand, the Petitioner's experience taking care of children is limited. The Petitioner's experience as the sole caretaker responsible for children is relatively sparse and of relatively short duration. While the Petitioner has done some baby-sitting for family and friends, most of the time he has spent with children has been while their parents were around. The Petitioner has not had occasion to be responsible for children overnight or for extended periods of time (certainly not for 24 or more hours). He also has not had much other experience working with children in other settings. He has not, e.g., worked or volunteered as a counselor for church or civic youth groups or camps.
Due to the nature of the Petitioner's experience with children, and his lack of experience with teenagers, it is not certain that the Petitioner will succeed as a foster parent of teenagers, or children of any age. It also is not certain that the Petitioner himself will thrive as and enjoy being a 24- hour a day foster parent. It would be desirable both for the Petitioner and for the children to be placed with him for the Petitioner to get more experience before beginning to act as a foster parent. But, on the other hand, the same probably could be said for most first-time parents. It is hard to truly know what it is like to be a parent until you become one.
HRS has no non-rule policy establishing clear minimum experience standards for licensure as a foster parent. HRS has licensed others to be foster parents with as little or less parenting experience compared to the Petitioner.
The licensing administrator who testified for HRS stated that HRS never has issued a provisional license to a first-time applicant and that HRS would not issue one for the purpose of evaluating the provisional licensee while the licensee gains additional parenting experience.
The Petitioner's Ability to Be a "Team Player"
On the "Strengths/Needs Work Sheet" for various sessions of the Petitioner's MAPP training, the Petitioner wrote:
(Needs as a Result of Meeting 2)
I am intolerant of those who hurt children and may have a difficult time holding back and/or editing my language in their company (during visits).
I have limited patience with bureaucracy. If something is not getting done, I will do it myself regardless of who gets offended.
(Needs as a Result of Meeting 5)
I probably will assume I am a better parent than the child's birth parents, and I don't think I'll want the child to return to his biological family.
As CHS conducts MAPP training, prospective foster parents are encouraged to use the "Strengths/Needs Work Sheet" to honestly express their deepest concerns about their ability to succeed as foster parents. Then, the trainers help the trainees deal with those concerns. CHS' MAPP trainers believed that, during the course of the training sessions, the Petitioner was able to work through his concerns and grow through the training process. He was open to the trainers' ideas and actively participated in the sessions. In their estimation, the Petitioner's comments, even when in the fifth session, should not be taken as an indication that the Petitioner would not be able to work in partnership with HRS and birth families as a team player.
The licensing administrator who testified for HRS was not familiar with how CHS conducted MAPP training and was not in a position to conclude, as she did, that the Petitioner's statements on the "Strengths/Needs Work Sheet," in and of themselves, show that the Petitioner will not be able to work in partnership with HRS and birth families as a team player.
The Petitioner has had no difficulty working within the bureaucracy at Universal Studios. He has had good relationships with his supervisors and has had no difficulty accepting their authority over him. Nothing about his employment experience would indicate that the Petitioner would have difficulty working in partnership with HRS and birth families as a team player.
The Petitioner's Single Life Style
On the "Strengths/Needs Work Sheet" for various sessions of the Petitioner's MAPP training, the Petitioner wrote:
(Needs as a Result of Meeting 2)
I am responsible, but do not lead a structured life. I eat when I'm hungry, sleep when I'm tired, have ice cream for breakfast . . .
(Needs as a Result of Meeting 3)
I may not be able to go out all night and do things as spontaneously as I do.
(Needs as a Result of Meeting 5)
It's just me - one on one. If I had a spouse to back me up when making rules or administer- ing discipline, things would be easier.
On the other hand, the Petitioner also counted among his strengths: (Needs as a Result of Meeting 3)
It's just me. . . . A foster child has only
one person to adjust to.
(Needs as a Result of Meeting 4)
I have no other people living in my home and can devote a majority of my free time to my foster child.
(Needs as a Result of Meeting 5)
As a single male with no children, I will be the only one affected.
These comments indicate an awareness on the Petitioner's part that his life will change if one or two foster children are placed in his home. As he recognizes, being single will make it more difficult in some ways, but somewhat easier in other ways. What can make being a single foster parent most difficult is not having the emotional and intellectual support and help of another adult in the home. A single foster parent must attempt to compensate by having adult family and friends who are willing and able to serve some of those needs. Several of the Petitioner's friends are willing and able to serve in this role for the Petitioner. All have met HRS's screening requirements.
One thing a single foster parent cannot replace is the inability to demonstrate (and teach through) a successful marriage. But this inability clearly is not disqualifying.
The Petitioner's Sexual Orientation
HRS's notice of intent to deny the Petitioner's application mentioned the Petitioner's sexual orientation. But at final hearing HRS took the position that sexual orientation itself was not a ground for denial of the Petitioner's application.
While not disqualifying in itself, being a homosexual foster parent undeniably will present special problems. First, it already has been mentioned that it can be a challenge for a homosexual to function in traditional society, and trying to function as a foster parent in traditional society surely will present its own special challenges. Along those lines, it is foreseeable, e.g., that a foster parent's homosexuality could be unacceptable to the birth family. In addition, since unmarried cohabitation by two or more adults is disqualifying, the Petitioner would be restricted to living alone. Lastly, many foster parents later adopt children placed with them, but the Petitioner will not be able to because homosexuality is disqualifying for purposes of adoption.
CONCLUSIONS OF LAW
Section 409.175(5), Fla. Stat. (1995), provides in pertinent part:
An application for a license shall be made on forms provided, and in the manner prescribed, by the department. The depart- ment shall make a determination as to the good moral character of the applicant based upon screening.
Upon application, the department shall conduct a licensing study based on its licens- ing rules; shall inspect the home or the agency and the records, including financial records, of the agency; and shall interview the applicant. The department may authorize a licensed child-placing agency to conduct the licensing study of a family foster home to be used exclusively by that agency and to verify to the department that the home meets the licensing requirements established by the department. Upon certification by a licensed child-placing agency that a family foster home meets the licensing requirements, the depart- ment shall issue the license.
In this case, it is clear that the Petitioner has been determined to be of "good moral character . . . based upon screening." The Petitioner argues that HRS is obliged to grant his application under the terms of Section 409.175(5)(b) because CHS certified that the Petitioner meets licensing requirements. HRS argues that the statutory requirement that HRS issue the license upon certification by a licensed child-placing agency only applies to "a family foster home to be used exclusively by that agency." (Emphasis added.) HRS's argument is persuasive. As a result of CHS's certification, the Petitioner may be entitled to a license to operate a foster home "to be used exclusively by" CHS, but is not necessarily entitled to a general license to operate a foster home for use by HRS and other entities.
Section 409.175(5), Fla. Stat. (1995), also provides in pertinent part:
(h) Upon determination that the applicant meets the state [minimum licensing require- ments], the department shall issue a license without charge to a specific person or agency at a specific location.
[Emphasis added.]
The only statutory "minimum licensing requirement" is in Section 409.175(13)(b), Fla. Stat. (1995), which provides in pertinent part:
As a condition of licensure, foster parents and emergency shelter parents shall success- fully complete a minimum of 21 hours of pre- service training. The preservice training shall be uniform statewide and shall include, but not be limited to, such areas as:
Orientation regarding agency purpose, objectives, resources, policies, and services;
Role of the foster parent and the emer- gency shelter parent as a treatment team member;
Transition of a child into and out of foster care and emergency shelter care, in- cluding issues of separation, loss, and attachment;
Management of difficult child behavior that can be intensified by placement, by prior abuse or neglect, and by prior placement disruptions;
Prevention of placement disruptions;
Care of children at various developmental levels, including appropriate discipline; and
Effects of foster parenting on the family of the foster parent and the emergency
shelter parent.
In this case, it is clear that the Petitioner completed preservice training and, in CHS's view, completed it successfully. HRS contends, based on the Petitioner's comments on the "Strengths/Needs Work Sheets," that the Petitioner did not "successfully" his preservice training. But, as found, the licensing administrator who testified for HRS was not familiar with how CHS conducted MAPP training and was not in a position to conclude, as she did, that the Petitioner's statements on the "Strengths/Needs Work Sheet," in and of themselves, show that the Petitioner will not be able to work in partnership with HRS and birth families as a team player. It has been found, and must be concluded, that the Petitioner successfully completed preservice training.
Section 409.175(4)(a), Fla. Stat. (1995), requires HRS to "adopt and amend licensing rules for family foster homes" and generally describes what the requirements for licensure and operation of family foster homes must include. But the only "state minimum licensing requirements" contained in HRS's rules are found in F.A.C. Rule 10M-6.025, which is entitled "Minimum Standards for Licensure of Family Foster Homes, Family Emergency shelter Homes and Family Group Homes," and provides in pertinent part:
(1) Family Composition.
It is most desirable for the subs- itute care family to include two parents in order to maximize opportunities for the care and nurturing of children. . . . A single person may only be licensed if they have a relief person who can assist with the children. The relief person must be approved by the department and meet the screening
requirements of Chapter 85-54, Laws of Florida.
* * *
(8) Health History. Applicants are required to share health history If
there is a question regarding the physical, mental or emotional health of any member of the household and possible injurious effects on a child, the applicant, upon the depart- ment's request, must supply clinical reports and evaluations.
In this case, the Petitioner met both "minimum standards." He has more than one "relief person" who has been approved and meets the screening requirements. He also has "shared" his health history, in particular concerning his experience with depression. In addition, the evidence proved that the Petitioner has kept his depression under control through appropriate use of medication and that he does not have any physical, mental or emotional condition that would be injurious to a child placed with him.
Another question raised by HRS as to the Petitioner's qualifications to be a foster parent go to his experience. Section 409.175(4)(a)5., Fla. Stat. (1995), provides that the HRS rules setting out the requirements for licensure and operation of family foster homes include:"The good moral character based upon screening, education, training, and experience requirements for personnel."
The Petitioner argues that Section 409.175(5)(d)2., Fla. Stat. (1995), precludes lack of experience from being a permissible ground for denial of his application in this case because it was not specified in HRS's denial letter. But Section 409.175(5)(d)2. provides: "When the department has reasonable cause to believe that grounds for denial or termination of employment exist, it shall notify, in writing, the applicant, licensee, or summer or recreation camp, and the personnel affected, stating the specific record which indicates noncompliance with the screening requirements." (Emphasis added.) The requirement to cite to "the specific record" does not apply to a licensee's experience.
While HRS is not precluded by Section 409.175(5)(d)2. from raising the issue of the Petitioner's experience, HRS has no minimum experience requirements. The closest HRS's rules come to addressing the experience requirements for prospective parents is F.A.C. Rule 10M-6.023, which is entitled "Parent Preparation and Mutual Selection," and provides in pertinent part:
(3) Qualities to Discuss with Prospective Substitute Care and Adoptive Families. The following characteristics and behaviors should be discussed with each prospective parent. These characteristics and behaviors
will be assessed through discussions and participation in the group meetings, through information provided as part of the family portfolio by prospective family members and through interviews with the family.
* * *
(d) Parenting skills:
[I]f they gave no children, have they enjoyed their experiences with children? How have they demonstrated their interest in children in the past?
Can they accept and understand the in- dividual needs of a child . . .?
Do they have the capacity to accept the child's relationship with his parents and with the department?
Can they accept working with the depart- ment to determine the most appropriate permanency planning goal for a child and agree to participate as a team member in working toward achieving the goal?
Do they have the perseverance to see a child through to the end of his temporary care placement in order to provide continuity to the child?
To the extent that these discussion topics can be construed as minimum licensing standards, the Petitioner meets them. He has enjoyed his experiences with children in recent years and has demonstrated this by initiating interaction with the children of his friends and members of his family. There is no reason to believe that he cannot accept or understand the individual needs of a child. The only basis on which to question his ability to persevere relates to his history of depression. That concern already has been addressed and should not preclude licensure. The other concerns relate to the Petitioner's ability to work with HRS and the birth families.
Ability to work with HRS and the birth families is the subject of a good number of HRS's rules on selection and training of prospective licensees.
F.A.C. Rule 10M-6.023, providing for "Parent Preparation and Mutual Selection," also states in pertinent part:
(1) Philosophy and Rationale. This
program was . . . predicated on the beliefs that shelter, foster and adoptive parents need to be prepared prior to the placement of children in their homes and that they need to be prepared to work as partners in permanency planning.
* * *
Because shelter and substitute care parents have round-the-clock close contact with the children in their homes, they have the most influence on the children's adjust- ments in care, their relationship with the birth parents, and their ability to move successfully into an adoptive placement or
other permanent placement. Therefore,
parents must work effectively as team members. Prospective parents need a complete under- standing of this rule and the rights and obligations that accompany that status.
Additionally, they need guidelines to function as partners in the delivery of services - fulfilling tasks as diverse as helping a child go home or becoming that child's adoptive parent.
* * *
(d) The department's parent preparation program is based on the following assump- tions or beliefs:
* * *
2. For most children, the birth family provides the best environment.
* * *
Qualities to Discuss with Prospective Substitute Care and Adoptive Families. The following characteristics and behaviors should be discussed with each prospective parent. These characteristics and behaviors
will be assessed through discussions and part- icipation in the group meetings, through infor- mation provided as part of the family portfolio by prospective family members and through interviews with the family.
Characteristics of substitute care and adoptive parents:
* * *
13. Ability to work with the department . . ..
F.A.C. Rule 10M-6.024, providing for "Substitute Care Parents' Role as a Team Member," states in pertinent part:
Responsibilities of the Substitute Parent to the Child.
* * *
(c) Substitute Parent Responsibilities.
1. Substitute care parents are expected to work cooperatively with the counselor as a member of a treatment team in seeking coun- seling, participating in consultation, and preparing and implementing the performance agreement or permanent placement plan for each child.
* * *
Responsibilities of the Substitute Parents to the Child's Family.
The substitute care parents must pre- sent a positive image of and demonstrate respect for the child's own family and must agree to maintain a working relationship with the child's family members as indicated in the performance agreement or permanent place- ment plan.
The substitute care parents must participate in planning visits for the child with his parents and family members.
The substitute care parents must allow children and their family members to communi- cate by mail and by telephone in accordance with the child's performance agreement, or permanent placement plan.
The substitute care parents are expected to share as many parenting experi- ences as possible with the child's own family, for example, participating in school conferences and activities, transporting the child to medical appointments, buying cloth- ing, and attending birthday parties.
The substitute care parents must never be openly critical of the child's biological family to the child or to others. Negative experiences and feelings should be shared with the counselor in a private setting.
The substitute care parents must will- ingly share information about the child, his development, school progress, behavior, and any significant happenings with the counselor and with the biological family.
* * *
(4) Responsibilities of the Substitute Parents to the Department.
[List of responsibilities (a) through (n) omitted.]
As found, notwithstanding the Petitioner's comments on the "Strengths/Needs Work Sheets," the evidence proved that there is no valid reason to conclude that the Petitioner cannot or will not cooperate and work with HRS and the birth families of children placed in his foster home.
HRS contends that the Petitioner's license should be denied under the terms of Section 409.175(8)(b), Fla. Stat. (1995), which provides in pertinent part:
Any of the following actions by a home or agency or its personnel is a ground for
denial, suspension, or revocation of a license:
* * *
2. A violation of the provisions of this section or of licensing rules promulgated pursuant to this section.
But, as has been shown, the Petitioner has not "violated" any statutes or rules.
Section 409.175(6), Fla. Stat. (1995), provides:
The department may issue a provisional license to an applicant who is unable to con- form to the licensing requirements at the time of the study, but who is believed able to meet the licensing requirements within the time
allowed by the provisional license. The issuance of a provisional license shall be contingent upon the submission to the depart- ment of an acceptable written plan to over- come the deficiency by the expiration date of the provisional license.
A provisional license may be issued when the applicant fails to meet licensing requirements in matters that are not of immediate danger to the children and the agency has submitted a corrective action plan which is approved by the department. A provisional license may be issued if the screening material has been timely submitted; however, a provisional license may not be issued unless the applicant is in compliance with the requirements in this section for screening of personnel.
A provisional license shall not be issued for a period in excess of 1 year and shall not be subject to renewal; and it may be suspended if periodic inspection by the department indicates that insufficient pro- gress has been made toward compliance with the requirements.
According to the evidence, HRS never issues a provisional license to a first-time applicant, and HRS would not issue one for the purpose of evaluating the provisional licensee while the licensee gains additional parenting experience.
Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Health and Rehabilitative Services enter a final order issuing the Petitioner a license to operate a foster home for up to two children, same sex, ages 12 to 18 years of age.
DONE and ENTERED this 27th day of June, 1996, 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 27th day of June, 1996.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-4150
To comply with the requirements of Section 120.59(2), Florida Statutes (1995), the following rulings are made on the parties' proposed findings of fact:
Petitioner's Proposed Findings of Fact.
1. Rejected that he applied for a license then; he initiated the screening process and preservice training at that time. Otherwise, accepted and incorporated.
2.-4. Accepted and incorporated.
5.-8. Accepted and incorporated to the extent not subordinate or unnecessary.
9. The characterization "extensive" is rejected as not proven; otherwise, accepted and incorporated.
10.-12. Accepted and incorporated.
13. The date "July 11, 1996" is rejected as contrary to the evidence. (It was 1995.) Otherwise, accepted and incorporated.
14.-16. Accepted and incorporated to the extent not subordinate or unnecessary.
17. Accepted but subordinate and unnecessary. 18.-22. Conclusions of law.
Accepted and incorporated.
Conclusion of law.
Respondent's Proposed Findings of Fact.
1.-3. Accepted and incorporated. 4.-6. Conclusions of law.
7.-9. Accepted but subordinate and unnecessary.
Rejected as contrary to the greater weight of the evidence. (The first testimony referred to Noll's knowledge of whether the Petitioner was on medication at the time of the hearing. Noll was not "pressed" for the additional testimony; he was just asked a different question.)
Rejected as contrary to the evidence that Noll "failed to follow through." Also, subordinate and unnecessary, as the question for determination is whether the evidence at final hearing supported licensure.
Rejected as contrary to the greater weight of the evidence. (Again, the question for determination is whether the evidence at final hearing supported licensure.)
Rejected as contrary to the greater weight of the evidence that he did not present any experience in his application; he presented more at final hearing after being informed that HRS included experience in the "single lifestyle" ground for the July 11, 1995, notice of intent to deny. Again, the question for determination is whether the evidence at final hearing supported licensure.
Rejected as contrary to the greater weight of the evidence; he presented more at final hearing. See 13., above.
15.-16. Generally, accepted. The Petitioner's exact statements are incorporated.
Rejected as contrary to the greater weight of the evidence that the Petitioner's purpose was to "avoid working with birth families." (The gist of Noll's discussion with the Petitioner appears to have been that foster parenting older children generally makes reunification less of a concern; either
reunification would not be a viable option or, if considered, the older child would have more say in the matter. Otherwise, accepted but subordinate and unnecessary.
Accepted but, as previously ruled, subordinate to the ultimate issue for determination, and unnecessary.
COPIES FURNISHED:
Ann E. Colby, Esquire
305 Elkhorn Court
Winter Park, Florida 32792
Laurie A. Lashomb, Esquire Department of Health and
Rehabilitative Services
400 West Robinson Street, Suite S-827 Orlando, Florida 32801
Gregory D. Venz Acting Agency Clerk
Department of Health and Rehabilitative Services
1323 Winewood Boulevard
Tallahassee, Florida 32399-1600
Richard Doran General Counsel
Department of Health and Rehabilitative Services
1323 Winewood Boulevard
Tallahassee, Florida 32399-1600
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 10 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.
| Issue Date | Proceedings |
|---|---|
| Feb. 12, 1997 | Final Order filed. |
| Jun. 27, 1996 | Recommended Order sent out. CASE CLOSED. Hearing held 03/08/96 & 04/25/96. |
| Jun. 03, 1996 | (Petitioner) Proposed Recommended Order (for Hearing Officer signature) filed. |
| May 22, 1996 | (Petitioner) Proposed Recommended Order; Notice of Change of Address filed. |
| May 13, 1996 | Transcript of Proceedings filed. |
| May 06, 1996 | (Petitioner) Notice of Filing Corrected Exhibit filed. |
| May 03, 1996 | Transcript of Proceedings filed. |
| Mar. 25, 1996 | Order Continuing Final Hearing (by video teleconference) sent out. (Video Hearing set for 4/25/96; 1:00pm; Orlando & Tallahassee) |
| Mar. 08, 1996 | CASE STATUS DOCKETED: Hearing Partially Held, continued to date not certain. |
| Feb. 05, 1996 | (Petitioner) Notice to Proceed filed. |
| Feb. 05, 1996 | Order Continuing and Rescheduling Formal Hearing sent out. (hearing rescheduled for 3/8/96; 9:30am; Orlando) |
| Jan. 29, 1996 | (Respondent) Response to the Hearing Officer filed. |
| Jan. 17, 1996 | Order of Abeyance sent out. (Parties to file status report by 3/4/96) |
| Jan. 09, 1996 | Agency Response to Request to Produce filed. |
| Jan. 08, 1996 | (Petitioner) Motion for Continuance filed. |
| Jan. 05, 1996 | (Petitioner) Motion for Sanctions filed. |
| Jan. 04, 1996 | (Petitioner) Motion for Sanctions filed. |
| Dec. 14, 1995 | Petitioner's Supplemental Witness List filed. |
| Dec. 11, 1995 | (Petitioner) Request to Produce filed. |
| Nov. 22, 1995 | Notice of Hearing sent out. (hearing set for 1/9/96; 9:30am; Orlando) |
| Sep. 29, 1995 | Respondent's Response to Initial Order filed. |
| Sep. 28, 1995 | Petitioner's Witness List And Request for Subpoenas filed. |
| Sep. 25, 1995 | (Petitioner) Petition for Hearing filed. |
| Aug. 30, 1995 | Initial Order issued. |
| Aug. 23, 1995 | Notice; Request for Administrative Hearing, letter form; Agency Action letter filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Feb. 11, 1997 | Agency Final Order | |
| Feb. 07, 1997 | Agency Final Order | |
| Jun. 27, 1996 | Recommended Order | Petitioner had limited experience but HRS has no minimums. Peetitioner had history of depression but controlled by medications. No ground for denial of license. |
