STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
ADOPTION ADVISORY ASSOCIATES, INC., )
)
Petitioner, )
)
vs. ) Case No. 99-3438
)
DEPARTMENT OF CHILDREN AND )
FAMILY SERVICES, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a hearing was held in this case in accordance with Section 120.57(1), Florida Statutes, on February
21 through 24, 2000, in West Palm Beach, Florida, before Stuart
M. Lerner, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Cheryl R. Eisen, Esquire
Executive Director
Adoption Advisory Associates, Inc. Suite 205
299 Camino Gardens Boulevard Boca Raton, Florida 33432
A. Thomas Connick, Esquire
411 East Hillsboro Boulevard Post Office Box 1186
Deerfield Beach, Florida 33441
For Respondent: Colleen Farnsworth, Esquire
Department of Children and Family Services
111 South Sapodilla Avenue, Suite 201 West Palm Beach, Florida 33401
STATEMENT OF THE ISSUE
What final action should be taken on Petitioner's application to renew its full-year regular license to operate as a Florida child-placing agency.
PRELIMINARY STATEMENT
By letter dated July 15, 1999, the Department of Children and Family Services (Department) notified Petitioner that it would not renew Petitioner's license to operate as a Florida child-placing agency. According to the letter (Notice of Intent), the "decision [was] based on the Department's determination that Adoption Advisory Associates, Inc. (AAA) failed to meet minimum standards for a licensed child-placing agency as per Florida Statutes 409.175, Florida Administrative Code (F.A.C.) 65C-15, and the Code of Federal Regulations (8 CFR Section 204.2)." The letter cited the following "specific violations":
Violation of F.A.C. 65C-15.002(7) which states: Agencies shall keep, at all times, a sufficient number of licensed foster homes, other than the prospective adoptive homes, which shall be used when the agency has received custody of a child and the child has not been placed in an adoptive placement.
AAA's only foster home's license expired on April 30, 1999, and has not been renewed, as of this date. AAA has a history of non- compliance with this requirement (see licensing report dated April 25, 1997).
Violation of F.A.C. 65C-15.010(3) which states: Audit: The agency shall have its financial records audited annually. A report
of this audit shall be available to the Department at the licensed location during normal business hours.
AAA was first licensed by the Department in April 1996. Only two audits have been submitted, both untimely. The second and last audit received by the Department was due in June 1998, and submitted March 23, 1999.
This audit was submitted after repeated requests from the Department, and a warning that a corrective action plan would be implemented if not received by March 23, 1999.
The first audit the Department received contained a list of several recommendations for changes to the internal auditing system of AAA. The licensing report dated June 12, 1997 stated: The Department agrees with the proposal submitted by the auditor, that accounting functions, including bank reconciliations and financial statement preparation be handled by the accountant's office on a monthly basis. The auditors' report indicated several possible material weaknesses in the internal control structure of the agency, under the present system. A new system was never implemented by AAA. Cheryl Eisen, Executive Director, continued to act as the agency's accountant, and presently is President and Treasurer of the Board.
Note: In another matter concerning finances, the information we received from AAA's auditor indicates that AAA has been operating as a 501(c)3 business, however, AAA informed the Department that the agency has not yet received this status.
3) Violation of F.A.C. 65C-15.010(4)(b) which states: Fees and Costs: Adoption fees shall be established based on the reasonable costs of the following services for the total adoption program:
Medical Services for the child and the birth mother;
Legal Services;
Counseling services;
Homestudy services;
Living expenses for the birth mother;
Foster care services;
Pre and post placement social services;
Contracted services, if applicable, and
Other necessary services;
Agency facilities and administrative costs.
Despite numerous requests, verbal and written, AAA has failed to provide adequate documentation regarding the fees assessed to prospective adoptive parents in relation to actual services provided. This information was necessary in order for the Department to investigate complaints regarding AAA's fees and practices. The Department received complaints by the following prospective and/or adoptive parents in the last several months, in regard to "reasonable fees" and business practices of AAA: Rasamee & Michael Wolf (represented by Michael Salnick, attorney); Ted and Susan Keller; Gilda Marin; Frank and Suzanne La Barbera; David & Paula Bergeron; Mitchell and Tamra Brandt; and Lori and Jesse James. (See pages 5-8 for a summary of these complaints.)
4) Violation of F.A.C. 65C-15.016(2)(b) which states: Staff Functions and Qualifications: (2) The agency shall have a personnel file for each employee, available for review by the Department, which shall include, but is not limited to the following:
(b) Verification that the screening requirements of s. 409.175 F.S. and F.A.C. 10-20 have been completed and met.
A review of personnel files has revealed a discrepancy in background screening documents. AAA records indicate that screening documents were to be transferred from "Adoption Connection," the agency where Cheryl Eisen, Sally Oken, and Irene Petow previously worked, to AAA in March 1995, before the existence of AAA. Request for Transfer Records forms indicated that AAA was in existence in 1995 and hired Cheryl Eisen and Sally Oken in March, 1995, and Irene
Petow on August 15, 1995. However, AAA was only initially licensed in April 1996.
Screening records on employees can only be transferred from one screened agency to another if there has been no period of unemployment in a position of special trust for more than 90 days (there had been a lapse of over one year from the termination of employment at Adoption Connection to the hiring at AAA). The failure to properly rescreen (not transfer) these employees was a violation of screening laws.
Violation of F.A.C. 65C-15.018(2) which states: The agency shall ensure that the supervisory and social work staff receive at least 15 hours of in-service training during each full year of employment. Personnel files reveal a lack of compliance with this requirement for all AAA employees during the last year.
Violation of F.A.C. 65C-15.025 which states: Monitoring and Annual Licensing Study. A staff member of the agency shall conduct an annual relicensing evaluation of the agency's licensed foster homes in order to make a timely recommendation to the Department in regard to renewal of the family's license. AAA failed to conduct such an evaluation in the required time frame.
Violation of F.A.C. 65C-15.027(1) which states: The Agency's Responsibilities to Foster Parents. The agency shall ensure that each newly licensed foster parent receive[s] not less than 12 hours of training per year during the first five two years of licensure.
8) Violation of F.A.C. 65C-15.028(1), (2)
and (3)(q) which state[]: Adoptive Home Study.
The agency shall make an evaluation of the adoptive home before placement of a child, which shall include at least one home visit.
The evaluation study shall be summarized in a written report . . . and shall include the following:
(3)(q) Evidence of screening of the applicants by the Florida Protective Services System Abuse Registry and law enforcement clearance.
In the adoption case of Lori and Jesse James, the placement of a child occurred prior to the completion of the evaluation study.
Evidence of screening clearance was not obtained prior to such placement. This violation could have materially affected the health or safety of an infant.
9) Violation of F.A.C. 65C-15.029(2) and (3) which state: Services to Adoptive Parents. The agency social worker shall visit with the adoptive family at least monthly, after the placement of a child, until the adoption is finalized. (a) Observations made during the visits shall be documented in a case file and shall form a basis for case planning with the family and the child. (3) The agency shall provide service to the adoptive family and child until the adoptive placement is finalized or terminated.
The agency failed to make the required monthly visits from the time the infant was placed with the adoptive parents to finalization in at least two cases that the Department is aware of. Hence, the required observations of the family and infant did not occur. Little documentation of services to adoptive families up until finalization is reflected in AAA's files.
10) Violation of F.A.C. 65C-[15].032(1)
which states: Family Case Records. The agency shall have on file a record of the family of every child whom the agency places into care.
The Department's review of birth mother documents by Amy West, Senior Human Services
Program Specialist, from the Tallahassee office, revealed incomplete and inadequate information in AAA's files.
11) Violation of F.A.C. 65C-[15].034(5)(8)
which states: Adoptive Home Records. (5) A summary of family contacts following approval for adoption until the child is placed; (8) Summary containing the placement decision, pre-placement and post-placement contacts with the family and the adoptive child, including services provided to stabilize the placement and decisions regarding finalization of the adoption.
The Department's review of adoptive home records revealed a lack of adequate documentation of adoptive family contacts.
12) Violation of F.A.C. 65C-15.036(3) which states: Intercountry Adoption Services: The agency which engages in intercountry adoptions shall comply with the requirements of the United States Immigration and Nationality Act as specified in section 1431 through 1434, 8 USC.
The Department recently received a call from Cynthia Reilly, a 29-year old woman, who stated that she became aware that her father and his wife were trying to adopt a Romanian child through AAA. Ms. Reilly was very upset about this possible adoption as she stated to the Department that she suffered "horrifying abuse" by her father during her childhood (physical and mental) and she feared for the safety of a child placed with him. Ms.
Reilly had notified INS and AAA and offered to send sworn statement to both verifying her account of this abuse. Stephanie Black, INS, DAO/Orphan Unit and the Department have received statements from Cynthia Reilly, her mother and her husband.
Ms. Reilly stated that she called AAA on three occasions in early May 1999 and talked with Marla Gross, an attorney employed at AAA, about the history of abuse. She was told that the social worker would call her back, and that "she needed to work things out
with her father." By July 1999, Ms. Reilly had not been contacted by AAA. She questioned why AAA did not want any further information or written documents. Due to concerns that a child might be placed at risk, she contacted INS again and then the Department. According to a letter sent to the Department, Ms. Reilly stated that she felt "blown off and ignored" and felt as if AAA had "total disregard of something I felt was so important."
According to INS regulations, 8 CFR Section 204.2: Information concerning history of abuse and/or violence. If the petitioner and/or spouse, if married, disclose(s) any history of abuse and/or violence as set forth in paragraph (e)(2)(iii)(A) of this section, or if, in the absence of such disclosure, the home study preparer becomes aware of any of the foregoing, the home study report must contain an evaluation of the suitability of the home for adoptive placement of an orphan in light of this history.
The Department was also notified in June 1999 that AAA has released inaccurate and/or misleading information at their recent public information seminar regarding the rules and regulations pertaining to Romanian adoptions. The inaccuracies were submitted to the Department by licensing staff in Broward County, who had written materials sent o them by a licensed child-placing agency in Broward County.
The Notice of Intent further alleged that, "in addition to the code violations noted above, the Department ha[d] received complaints regarding the business practices of AAA" from Ted and Susan Keller, Rasamee and Michael Wolf, Gilda Marin, Frank and Suzanne La Barbera, David and Paula Bergeron, Mitchell and Tamra Brandt, and Lori and Jesse James. These complaints were summarized on pages 5 through 8 of the Notice of Intent.
By letter dated July 26, 1999, and received by the Department on July 30, 1999, Petitioner requested an administrative hearing on the Department's proposed non-renewal of Petitioner's license. On August 11, 1999, the Department referred the matter to the Division of Administrative Hearings for the assignment of an Administrative Law Judge to conduct the hearing Petitioner had requested.
The final hearing was initially scheduled to commence on December 14, 1999, but was continued at Petitioner's request and rescheduled to begin on February 21, 2000.
By letter dated January 14, 2000, the Department notified Petitioner of the following:
This letter is to notify you that the Department has received an additional complaint concerning the business practices of Adoption Advisory Associates, Inc. (AAA)
Vincent and Patricia Durante informed the Department of the following:
When the Durantes first met with AAA, they were "led to believe the international adoption process would go quickly," and that they would travel to Romania in July 1999 to finalize their adoption. Travel dates were continually pushed back and eventually the Durantes were told that the adoption would most likely take place in April 2000. The Durantes began to have serious concerns about the money they had paid AAA, and whether the adoption would take place within the two-year confines of the contract.
According to the Durantes, they were asked to sign a contract with AAA on June 30, 1999, and paid approximately $7,000 to AAA at that time. The home study was signed by AAA in June 1999. However, according to Mrs.
Durante, the home study was not completed until August 1999 as required medical information on the Durantes was still outstanding. When Mrs. Durante asked AAA to correct the date on the home study to August, when all documents were in, AAA refused. The Durantes believe that AAA backdated the home study to be consistent with the contract date, which was prior to the July 31, 1999, expiration date of AAA's provisional license.
In summary, the Durantes felt misled by staff at AAA and by the contract itself. When they asked questions, they were told to "trust us." The Durantes were fearful of losing more money if they continued their involvement with AAA, and chose to withdraw their application. They were told that they were not entitled to any refund. The Durantes have contacted a lawyer to discuss possible legal action against AAA.
Pursuant to Florida Administrative Code 65C- 15.004, the Department will investigate and determine whether the complaint is substantiated. You will be notified in writing as to the Department's decision.
On February 8, 2000, the Department sent Petitioner the following Amended Notice of Nonrenewal of License:
The department has completed its investigation into the complaint of Vincent and Patricia Durante and determined that the allegations, as referenced in our January 14, 2000 correspondence, are substantiated.
This will serve as notice that the department is considering this verified complaint as a factor in its decision not to renew Adoption Advisory Associates' child-placing license.
By letter dated February 9, 2000, the Department notified Petitioner of the following:
This letter is to notify you that the Department has received an additional
complaint concerning the business practices of Adoption Advisory Associates, Inc. (AAA).
[L. K.] called the Department on February 8, 2000, and stated she was submitting a complaint against AAA. Ms. [K.] informed the Department that she is a birth mother who surrendered her baby for adoption in February, 1998, through AAA. She stated she has had numerous problems dealing with AAA during the last two years. Most recently, she has been unable to receive pictures of her child through the agency, and has found AAA to be uncooperative in recent dealings.
Ms. [K.] feels she has been misled by AAA, and that the adoption process was not what was initially described to her, i.e. semi- open, pictures, etc. The Department has received a detailed account of Ms. [K.'s] concerns.
Pursuant to Florida Administrative Code 65C- 15.004, the Department will investigate and determine whether the complaint is substantiated. You will be notified in writing as to the Department's decision.
On February 17, 2000, the Department sent Petitioner the following Second Amended Notice of Nonrenewal of License:
The department has reviewed all documentation pertinent to the case of [L. K.]. No information from Adoption Advisory Associates has been received regarding this compliant.
The department has completed its investigation and determined that the allegations, as referenced in our February 9, 2000 correspondence, are substantiated.
This will serve as notice that the department is considering this verified complaint and Adoption Advisory Associates' actions in the prior case of Cindy and Joe Simonet as a factor in its decision not to renew Adoption Advisory Associates' child-placing agency license.
On February 18, 2000, the Department filed with the Division the Amended Notice of Nonrenewal of License and the Second Amended Notice of Nonrenewal of License it had previously sent to Petitioner.
As noted above, the hearing in this case was ultimately held on February 21 through 24, 2000.
At the hearing, the undersigned indicated that he was treating the filing of the Department's Amended Notice of Nonrenewal of License and its Second Amended Notice of Nonrenewal of License as a request for leave to amend the Notice of Intent by incorporating therein the Durantes', the Simonets', and L. K.'s complaints. After hearing argument on the matter, he granted the request with respect to the Durantes' and L. K.'s complaints, but refused to allow the Administrative Complaint to be amended to incorporate the Simonets' Complaint (which was first filed with the Department in the latter part of 1997) because to do so would necessarily result in delay that would be prejudicial to Petitioner. See Optiplan, Inc. v. School Board of Broward County, 710 So. 2d 569 (Fla. 4th DCA 1998); Key Biscayne Council v. Department of Natural Resources, 579 So. 2d 293 (Fla. 3d DCA 1991).
The undersigned, at the hearing, also addressed the Motion in Limine that Petitioner had filed a week before the commencement of the hearing. In its Motion in Limine, Petitioner had argued that "certain indisputable facts and clear points of
law support the conclusion that, by operation of law [specifically the "deemer" provision of Section 120.60(1), Florida Statutes], AAA was entitled to issuance of an unconditional license to operate a child-placing agency at the time its application for license was purportedly denied by DCF" and that therefore "any evidence which DCF might seek to introduce at hearing in support of its reasons for the purported denial of AAA's application for license renewal would be irrelevant to a determination of any issue properly before this court." At the outset of the hearing on February 21, 2000, the undersigned reiterated what he had said during a prehearing telephone conference call on the motion:
There are certain factual assertions made in the motion. [Accordingly,] I will allow the parties to present evidence with respect to the issues raised by the motion as well as all other issues in dispute in this case. [In addition, I will] allow the parties in their proposed recommended orders to present
whatever legal arguments they wish concerning the issues raised in the Motion in Limine and other legal issues in dispute in this case. [I]n my recommended order, I will address all of these issues.
The following witnesses testified at hearing: Karen Willson, Amy West, Suzanne La Barbera, Frank La Barbera, Ted Keller, Gilda Marin, Mitchell Brandt, Lori Kellogg, Stephanie Black, L. K., Vincent Durante, Aubrey Bourgeois, David Bergeron, Rebecca Walker, Cheryl Eisen, Sarah Franco, and Michele Hoffman. In addition to the testimony of these witnesses, numerous exhibits were offered and received into evidence.
At the conclusion of the evidentiary portion of the final hearing on February 24, 2000, the undersigned established a deadline (20 days from the date of the filing of the complete transcript of the final hearing with the Division) for the filing of proposed recommended orders. The complete Transcript of the final hearing (consisting of eight volumes) was filed with the Division on April 13, 2000. On May 2, 2000, Petitioner filed an unopposed motion requesting an extension of the deadline for filing proposed recommended orders. The motion was granted and the filing deadline was extended to May 10, 2000. The Department filed its Proposed Recommended Order on May 3, 2000. On May 8, 2000, Petitioner requested, and was granted, an additional extension of time to May 17, 2000, to file its proposed recommended order. Petitioner subsequently requested, and was granted a further one-day extension of time to file its proposed recommended order. On May 18, 2000, Petitioner filed its Proposed Recommended Order. Both the Department's and Petitioner's Proposed Recommended Orders have been carefully considered by the undersigned.
Subsequent to the filing of these Proposed Recommended Orders, Petitioner filed two unopposed motions requesting that the evidentiary record in this case be supplemented with the documentary evidence appended to the motions. Both motions were granted by the undersigned.
FINDINGS OF FACT
Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made:
Petitioner
Petitioner is now, and has been at all times material to the instant case, a child-placing agency doing business in Palm Beach County, Florida.
Cheryl Eisen, Esquire, is now, and has been at all times material to the instant case, Petitioner's executive director. She and her secretary are currently Petitioner's only employees.
Ms. Eisen is now, and has been since 1974, a member in good standing of The Florida Bar. She specializes in adoption law. Her law firm provides Petitioner with legal services.
Ms. Eisen is not paid for any of the work she performs in her capacity as Petitioner's executive director. (Her law firm, however, is paid for the legal services it provides.)
Ms. Eisen was first employed by Petitioner in February of 1996.
Before she started working for Petitioner, Ms. Eisen served as outside legal counsel for another Florida-based child- placing agency, Adoption Connection. Her services were terminated by Adoption Connection in March of 1995, when she became embroiled in a dispute with the executive director and board of directors of the agency concerning whether to report to the Department's predecessor, the Department of Health and
Rehabilitative Services (HRS), that administrative action had been initiated against a "sister agency" of Adoption Connection's located in Massachusetts. Ms. Eisen advised that HRS be notified of the situation in Massachusetts, but Adoption Connection's executive director and board of directors refused to follow Ms.
Eisen's advice. When she insisted that such notification be given, she was terminated. Adoption Connection was closed a few months later.
Ms. Eisen, along with Sally Oken, a licensed clinical social worker who had also worked for, and been terminated by, Adoption Connection, subsequently formed Petitioner. Petitioner's Licensure History
Petitioner was first licensed as a child-placing agency on April 15, 1996. The license it received was a provisional license. This provisional license was converted to a regular license, expiring April 30, 1997. On April 30, 1997, Petitioner received a second provisional license, expiring June 13, 1997. This second provisional license, on June 13, 1997, was replaced by a regular license, expiring April 30, 1998.
Petitioner first received a full-year regular license in 1998. The license had an effective date of April 30, 1998. The Certificate of License that Petitioner received from the Department indicated that Petitioner "ha[d] complied with the minimum standards set by the Department for Child-Placing Agencies."
The Certificate of License was accompanied by the following cover letter from the Department, dated May 1, 1998:
Enclosed is a copy of the licensing report and the Certificate of License for Adoption Advisory Associates, Inc., effective
April 30, 1998, expiring April 30, 1999. The license is to be displayed in a prominent place at the agency.
Please pay particular attention to items indicated in bold in the report. The foster home license needs to be processed as soon as possible. I will work with the Department, although you need to follow up and notify me when the license has been issued. When your audit is complete, please notify me and send the packet to me (no later than June 30, 1998). . . .
The "licensing report" which was sent to Petitioner along with the Certificate of License provided, in pertinent part, as follows:
RESULTS: . . .
Program Policies and Procedures: A revised contract and fee schedule was formulated and submitted to the Department. AAA has complied with the recommendation by the Department to inform all clients of their right to report a complaint to the Department. The Agency has incorporated this necessary information in their packets to clients. Policies and procedures and necessary legal documentation appear to comply with Florida Code 65C-15.
Documentation of counseling services to birth parents and support services was also found in files.
Staff: . . . Screening documentation has been kept up to date. Cheryl Eisen will be due for 5-year re-screening in July 1998, which would include FDLE and local law checks. . . .
Audit and budget: The agency's fiscal year ends April 30, and the audit and budget will be prepared and submitted to the Department. The auditor's report will be reviewed by the Department, and past recommendations by the auditor are expected to have been put into place. The audit needs to be completed and submitted by June 30, 1998.
Complaints/concerns: During the past year, the Department received a few phone calls from prospective and waiting list adoptive couples, and a birth parent relative who expressed concerns or had questions on certain agency procedures. These concerns were discussed and resolved by the Department and/or agency staff. It is recommended that a system of monthly contacts with adoptive couples who are waiting for a placement be established, and that services and a system of communication with adoptive couples be expanded. . . .
RECOMMENDATION: Adoption Advisory Associates appears to comply with licensing standards outlined in Florida Administrative Code 65C-
15. Items indicated in bold in this report need to be addressed accordingly. It is the recommendation of the Department to issue a Child-Placing license to Adoption Advisory Associates, effective April 30, 1998, expiring April 30, 1999.
The Submittal of Petitioner's March 1999 Application for Licensure Renewal and the Department's Response
By letter dated March 2, 1999, the Department, through Karen Willson, a facilities licensing counselor with the Department, reminded Petitioner, through Ms. Eisen, that its current license would expire on April 30, 1999. The letter read as follows:
As you are aware, all child-placing agencies need to be relicensed on a yearly basis.
Your present license expires on April 30, 1999.
Enclosed are Application For License and Assurance of Compliance forms, which need to be signed and returned to me. I am also sending a copy of Florida Administrative Code, Chapter 65C-15, Licensing Standards, and a licensing checklist to use as a guide. I will be reviewing all areas of these licensing standards at the time of the monitoring.
Please compile a list of all adoptive couples, on the waiting list, and couples who have had adoptive placements during the last year, including addresses and phone numbers. As part of the licensing process, I may be contacting these individuals. Please send this list to me prior to the scheduled on- site visit. I would like to meet with you on March 23, 1999, at 10:00 a.m. Please call met at . . . to confirm this date and time.
In addition, please have the following available for review:
Monthly contact sheets (adoptive couples waiting)
Organizational chart with employees listed Updates of changes in policies and procedures Fee schedule for adoptive parents
Statistics (no. of birth mothers, adoptive parents waiting, placements, finalized and ongoing)
List of board members; board meeting minutes Annual Audit**
Budget
Staff training logs and evaluations Files: personnel (including screening information), birth mothers, adoptive parents, foster homes.
If you have any questions concerning the licensing process, please feel free to call me.
** AAA is presently out-of-compliance with Florida Administrative Code 65C-15, as the Department has not received an annual audit. The last audit received was dated June 3, 1997. This will require a corrective action
if a current audit is not received by March 23, 1999.
On March 23, 1999, Petitioner submitted to Ms. Willson its application seeking the renewal of its full-year regular child-placing agency license.
On April 14, 1999, Ms. Eisen, by facsimile transmission, provided Ms. Willson with the statistical information Ms. Willson had requested in her March 2, 1999, letter.
By letter dated April 28, 1999, which read as follows, Ms. Willson informed Ms. Eisen that the Department was granting Petitioner a "three-month provisional license:
Enclosed is a provisional Certificate of License for Adoption Advisory Associates, Inc., expiring July 31, 1999. As you are aware, the Department is currently investigating recent complaints reported to the Department regarding the agency. In order to complete the investigation, a three- month provisional license is granted at this time. 1/ You will be notified as to the results of the investigation, when completed, and the status of your license at that time.
The enclosed "provisional Certificate of License" stated as follows:
Know All Men by These Presents: That the Department of Children and Families being satisfied that the facility located at 2999 Camino Gardens Blvd., Suite 205 in the city of Boca Raton, County of Palm Beach, State of Florida, has complied with the minimum standards set by the Department for Child- Placing Agencies and the Department approves the application of said Adoption Advisory Associates, Inc. for a license to operate and
directs the issuance of this certificate on the 30 day of April, 1999.
The license shall continue in force for one year from the above date unless renewed, withdrawn, or revoked for cause. This is a provisional license which will expire
July 31, 1999.
The certificate was signed by the District Administrator.
By letter dated May 14, 1999, Petitioner informed the Department of Petitioner's "objections regarding being given only ninety days' provisional status."
As noted above, on July 15, 1999, the Department issued its Notice of Intent and, by letter dated July 26, 1999, Petitioner requested an administrative hearing on the matter.
By letter dated July 29, 1999, to the District Administrator, Ms. Eisen set forth Petitioner's position regarding the "legal situation" with respect to its licensure status:
We applied for renewal of our license on March 24, 1999.
On April 30, 1999, the Department apparently purported to neither approve nor to deny our license renewal application, but to give us a "provisional" license. In pertinent part, Florida Statutes section
409.175 (1998) provides the circumstances in which a provisional license may be issued:
"(6)(a) The department may issue a provisional license to an applicant who is unable to conform to the licensing requirements at the time of the
study . . . . The issuance of a provisional license shall be contingent upon the submission to the department of an acceptable written plan to overcome the deficiency by
the expiration date of the provisional license.
A provisional license may be issued when the applicant fails to meet licensing requirements . . . and the agency has submitted a corrective action plan which is approved by the department. [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 . . . may be suspended if periodic inspection by the department indicates that insufficient progress has been made toward compliance with the requirements."
All three subsections of section 409.175(6) anticipate that the Department has informed an agency of deficiencies that need to be corrected at the time the provisional license is granted. As this agency received no such notice, we were not in fact granted a provisional license on April 30, 1999, but an unconditional approval of our license application.
In the alternative, Florida Statutes section 120.60(1) 1998 requires that:
"Every application for a license shall be approved or denied within 90 days after receipt of a completed application. . . .
The agency must approve any application for a license . . . if the agency has not approved or denied the application within the time periods prescribed by this subsection."
Because the District did not approve or deny by June 22, 1999, the license we applied for on March 24, 1999, this so-called "deemer" provision in the Florida Administrative Procedures Act has entitled this agency, since June 22, 1999, to demand issuance of an unconditional license.
It is our hope that, in consideration of the foregoing, as well on the basis of the
material we have previously provided directly to you and Judge Kearny, you will forthwith issue the license which this agency presently enjoys by operation of law.
The District Administrator responded to Ms. Eisen by sending her a letter, dated July 30, 1999, which read as follows:
The Department of Children and Families has reviewed your correspondence of July 29, 1999 regarding the licensure of Adoption Advisory Associates, Inc. (AAA) A determination has been made that AAA will receive a restricted Certificate of License in order to continue working with existing clients. The license will be subject to immediate revocation in the event that a final order is issued affirming the Department's decision not to renew AAA's license. A list of existing clients must be provided to the Department within five days of receipt of this letter.
Failure to do so will result in the
revocation of the restricted license. The Restricted Certificate is attached.
The Department has forwarded your July 26, 1999 request for an administrative hearing to the agency clerk for processing.
Thank you for your prompt consideration.
The "attached" "Restricted Certificate" indicated that it would "continue in force for one year from [July 31, 1999] unless renewed, withdrawn, or revoked," and further indicated that it would be "subject to immediate revocation in the event that a final order is issued affirming the Department's decision to not renew Adoption Advisory Associates' license."
Petitioner still operates under this "Restricted Certificate," which provides that Petitioner shall accept no new clients.
"Agency Identified" Domestic Adoption Services Contract
At all times material to the instant case, Petitioner presented to prospective adoptive parents desiring to receive domestic adoption services from Petitioner a form contract (Domestic Contract) for their signature.
Section I of the Domestic Contract addressed the subject of the "agency's undertaking, services, and exclusions."
It provided as follows:
Agency's Undertaking. The Prospective Adoptive Parents request, and the Agency is willing to provide, domestic adoption services with the goal of providing to the Prospective Adoptive Parents an offer of placement of an adoptable newborn child in the Prospective Adoptive Parents home at the earliest possible moment. The Agency agrees to make a diligent effort to place such a child with the Prospective Adoptive Parents in accordance with the social service policies and procedures of the Agency, as established and from time to time amended by the Agency's Board of Directors, and in accordance with federal and Florida statutory and administrative law.
Agency Services. The Agency's domestic adoption services include, but are not limited to, birth parent outreach in the form of professional networking and widespread advertising; provision of prebirth medical and social services to birth parents, including counseling about adoption issues and alternatives; home studies and pre- and post-adoption counseling for prospective adoptive parents; presentation of educational and supportive forums and seminars for clients, professionals, and the public; birth parent housing; and legal services including termination of parental rights and finalization of Florida adoptions.
Non-resident Prospective Adoptive Parents. If the Prospective Adoptive Parents are not Florida residents, compliance with the law of their home state as regards payment of Agency's fees and costs, placement, post-placement and finalization of adoption is their sole responsibility and must be arranged for by obtaining advice and assistance of a licensed and experienced attorney in that state prior to the execution of this contract, providing the following information:
Attorney Telephone
Street City State Zip
The Prospective Adoptive Parents understand that disapproval by their home state of any aspect of a placement pursuant to this contract may disrupt the placement. The Prospective Adoptive Parents indemnify and hold the Agency harmless for such result, remaining responsible for the "At Placement" fees and costs due the Agency under this contract to the extent not otherwise recouped by the Agency by making an alternate placement of any child identified to this contract. Further, such mistake of law shall not be a basis for recission of this contract or refunding of "At Contract" fees and costs paid hereunder. (See paragraphs II, B and C, below for information regarding "At Contract" and "At Placement" fees.)
Section II of the Domestic Contract addressed the subject of the "fees and costs." It provided as follows:
Basis for Determining Fees and Costs. Pursuant to Florida Administrative Code section 10M-24.019(4)(b), 2/ the Agency's adoption fees have been established based on the reasonable costs of the following services for the total adoption program: (1) medical services for the child and the birth mother; (2) legal services; (3) counseling services; (4) home study services; (5) living
expenses for the birth mother; (6) foster care services; (7) pre- and post-placement social services; (8) contracted services, if applicable; (9) other necessary services; and
(10) agency facilities and administrative costs.
Summary of Estimated Fees & Expenses and Refund Policy. The Agency's Summary of Fees & Expenses ("Fee Summary") and its Refund Policy are attached and incorporated in this agreement by this reference. The Prospective Adoptive Parents acknowledge that those documents have been thoroughly reviewed by them with Agency staff and are completely understood and accepted.
Timing and Manner of Payment of Fees. A Home Study Service Fee will have been paid to the Agency prior to execution of this agreement. The "At Contract" Fees shown on the Fee Summary are due upon execution of this agreement, after the Agency's approval of the Prospective Adoptive Parents' home study. The "At Placement" Fees shown on the Fee Summary, including all contingent fees as estimated by the Agency, are due in the form of a cashier's check after birth immediately prior to physical placement of the child with the Prospective Adoptive Parents.
The "Fee Summary" referenced in subsection II.B. of the Domestic Contract provided as follows:
SUMMARY OF ESTIMATED FEES & EXPENSES
AGENCY ADMINISTRATIVE FEE (out-of-Florida birth or placement $500 additional*)
At Contract $5,750.00 At Placement $5,750.00
BIRTH PARENT COUNSELING FEE At Contract $1,250.00
At Placement $1,250.00
BIRTH MOTHER SUPPORT FEE/EXPENSES At Contract $2,000.00
At Placement [see note]**
BIRTH MOTHER MEDICAL FEE/EXPENSES At Contract $2,000.00
At Placement [see note]***
POST PLACEMENT SERVICES FEE (out-of- Florida placement $500 less)
At Placement $1,000.00
LEGAL FEE****
At Contract $500.00 At Placement $1,000.00
[Total Due] At Contract $11,500.00
* An out-of-Florida birth or placement may also involve additional costs for out-of- state attorneys, agencies, and/or social workers, which costs will not be within the agency's control; further, adoptive parents' travel expenses are additional and will include hotel costs while Interstate Compact processing is pending.
** A $2,000 minimum Birth Mothers' Support Fee is required regardless of whether and to what extent support of the Birth Mother is needed. This permits the agency to fund the provision of living expenses to birth mothers who ultimately choose not to place or whose babies are ultimately determined to be legally or medically unadoptable. A Birth Mother's actual support expenses only rarely exceed $3,500 additional to the $2,000 Support Fee paid "At Contract."
*** A $2,000 minimum Birth Mothers' Medical Fee is required regardless of whether and to what extent the birth may be covered by insurance or Medicaid. This permits the agency to fund the provision of medical services to birth mothers who ultimately choose not to place or whose babies are ultimately determined to be legally or medically unadoptable. In the event of a "non-covered" birth, the adoptive parents will be responsible only for the birth mother's actual medical expenses, which can
be expected to be between $3,000.00 and
$8,000.00, after credit for the $2,000 Medical Fee paid "At Contract," depending on the circumstances of pregnancy and birth (with no contribution to our medical service fund required). The child's medical expenses are additional, but under the law of many states, including Florida, these are reimbursable by the adoptive parents' health insurance carrier.
**** The $1,500.00 legal fee is exclusive of required court and administrative fees (filing fee for petition of adoption, certified copies of court orders, obtaining original and amended birth certificates-- totaling approximately $250), and does not include the expense of newspaper publication of notice to the birth father, if such is legally necessary ($275 - $300), or any unanticipated fees or expenses.
NOTE: Charges for required home study services are payable at the time of service, prior to and apart from the "At Contract" and "At Placement" fees shown above. Charges are as follows: full home study-- $1,500; update of home study more than a year old-- $750; review and confirmation of current home study prepared outside our agency-- $350.
The "Refund Policy" referenced in subsection II.B. of the Domestic Contract provided as follows:
REFUND POLICY
In some few cases, prospective adoptive parents accepted into Adoption Advisory Associates' program decide to continue with, or seek out, other placement sources after working with us. We fully support whatever decisions you make in this regard, and work equally diligently for those working only for us and those working with other agencies and/or attorneys as well. We have developed the following refund schedule to be effective in the event you accept placement of a child
from another source (or receive confirmation or your own pregnancy):
If you notify us in writing of your acceptance of placement of a child from another source (or of your own pregnancy), we will refund your At Contract fees and expenses within thirty days of receipt of such notification as follows:
Notification within 0-30 days of date of acceptance into AAA's
program: $5,000.00
31-60 days $4,000.00
61-90 days $3,000.00
91-180 days $1,500.00
after 180 days No Refund For purposes of this Refund Policy,
"placement" is defined as actually receiving a child in your home for the purpose of adoption. "Date of your acceptance into AAA's program" is defined as the date we sign our Domestic Adoption Services Contract with you.
If, in the sole discretion of the Executive Directors, circumstances other than receiving placement of a child from another source, or confirmation of pregnancy, warrant any refund of At Contract fees and expenses, such a refund would be based on the foregoing schedule.
In no event shall any mistake of law by Prospective Adoptive Parents residing outside the state of Florida as to the enforceability or implementation of this contract under the law of their home state constitute grounds for any refund of fees or costs paid by them, it being their sole obligation to obtain counsel in their state before entering into our Domestic Adoption Services Contract.
Section III of the Domestic Contract addressed the subject of "conditions of matching and adoptive placement." It provided as follows:
Birth Parent Selection of Prospective Adoptive Parents: Contact Protocols. The Agency encourages birth parents to participate in the process of choosing prospective adoptive parents for their babies from those pre-approved and recommended by the Agency, and such choices are given paramount importance. Nevertheless, the Agency has sole and exclusive control of the sequence of parent(s) eligible to adopt and the matching process, and will make final decisions regarding matching, meeting and placement of children for adoption. From the time of matching to the time of placement for adoption, the Prospective Adoptive Parents will abide by any and all protocols the Agency in its sole discretion shall establish, either in general or ad hoc, as relates to contact with the Agency's birth parent clients and their babies, whether in the Agency, in the hospital, or elsewhere.
Placement Formalities. After the birth of the child to be placed with the Prospective Adoptive Parents, but before physical placement, the Prospective Adoptive Parents will, as conditions precedent to placement, (1) execute the Agency's placement papers and (2) pay to the Agency by cashier's check the balance of the total estimated fees and costs of the of the adoption as determined by the Agency at that time. Any additional costs (typically medical expenses) associated with the placement will be paid by the Prospective Adoptive Parents upon receipt of the Agency's bill, but in no event later than the execution of the Agency's consent to finalization of the adoption of the child.
Legal and Physical Custody until Finalization; Duty of Support. As provided by law, the Agency retains legal custody of the child until finalization of adoption occurs and thus has the authority to make any
and all decisions it deems to be in the child's best interests. Nevertheless, the Prospective Adoptive Parents, to be the physical custodians of the child, agree to provide for one hundred percent of the child's medical and other care nunc pro tunc (i.e. retroactively) from birth until finalization of adoption, and indemnify and hold the Agency harmless for any claims by third parties for providing goods or services to the child.
Removal of Child. The Agency may remove the child from the home of the Prospective Adoptive Parents, prior to finalization, if the Prospective Adoptive Parents accept another child for the purpose of adoption either through another Agency or through an attorney. The agency will remove a child from the home of the Prospective Adoptive Parents, prior to finalization, if in its professional judgment the placement proves not to be in the best interests of the child.
Section IV of the Domestic Contract addressed the subject of "placement, post-placement and finalization." It provided as follows:
Timing of Placement; Foster Care. The Agency may place a child with the Prospective Adoptive Parents, and the Prospective Adoptive Parents agree to be available for the placement of the child, as soon as 24 hours following the birth of the child if the Agency determines that placement is clinically appropriate. In the event the Prospective Adoptive Parents or the child are not ready or available for placement upon the child's discharge from the hospital so that foster care is required, the Agency will place the child in foster care until appropriate arrangements are completed for placement with the Prospective Adoptive Parents. In this event, the Prospective Adoptive Parents will be responsible upon placement for such foster care expenses at the rate of $75.00 per day.
Out of State Birth; ICPC. In the case of a birth in a state other than the Prospective Adoptive Parents' home state, the Prospective Adoptive Parents (or one of them) must travel to the foreign state, at their expense, to take physical custody of the child. They must remain in that state until all the legal requirements imposed by the Interstate Compact on the Placement of Children ("ICPC") have been complied with in both the "sending" and "receiving" state. The duration of the stay in the foreign state is subject to many factors beyond the control of Adoption Advisory Associates, but will be estimated at the time a particular match is offered. A typical ICPC waiting period is five (5) to ten (10) days.
Post-Placement Supervision. If a child is placed with Prospective Adoptive Parents residing in Florida, the Agency will conduct a scheduled series of post-placement contacts with the family. These contacts are for the purpose of providing support and collecting data for the Agency's final recommendation to the court regarding finalization of the adoption. If placement is outside Florida, a local social service provider will be arranged and paid for by the Prospective Adoptive Parents, subject to the approval of the Agency, to perform this post-placement supervision.
Progress Reports and Photographs. The Prospective Adoptive Parents agree to submit to the Agency monthly written reports regarding the child's progress, along with color photographs of the child, each month until finalization of the adoption, and thereafter each year around the time of the child's birthday. It is understood that these reports and pictures will be available to the birth parent(s) to the child.
Post-Placement Medical Care; Emergencies. In case of an emergency involving the adoptive child, the Prospective Adoptive Parents agree to administer to the child's needs first, seeking any medical care which may be needed, then to contact the Agency as
soon as possible to inform the Agency as to the nature of the emergency and the child's status. The expense of all post-placement medical care for the child is the responsibility of the Prospective Adoptive Parents, who are required to have comprehensive medical insurance coverage in place at the time of placement.
Travel Before Finalization. Until the finalization of adoption, the Prospective Adoptive Parents must inform and obtain the approval of the Agency of any travel plans which would take the child out of the state in which the child was placed by the Agency for more than 7 days.
Finalization of Adoption. The Prospective Adoptive Parents agree to legally finalize the adoption of the child in the state where the Prospective Adoptive Parents reside as soon as permitted under applicable state law. For Florida residents, legal fees paid to the Agency include the expense of finalization of adoption in Palm Beach County, Florida, by the Agency's legal counsel. Non-Florida residents are responsible for obtaining and compensating counsel in their home state to finalize the adoption. Non-residents' home states may require local social worker's reports, filing fees, and other expenses which are the sole responsibility of the Prospective Adoptive Parents.
Request by Prospective Adoptive Parents for Removal of Child. The Agency will act as expeditiously and promptly as possible to make alternate arrangements for placement in the event that the Prospective Adoptive Parents request that the child be removed prior to finalization of the adoption for any reason.
Non-Placement. In the event the Prospective Adoptive Parents are matched with a birth mother but no placement ultimately occurs, the Agency shall continue its best efforts, as set forth in paragraph I.A., above, to cause a placement to occur within
the two year term of this agreement, with no additional fee required. Any "At-Placement" fees, except for medical expenses actually incurred by the Agency, will be refunded.
Section V of the Domestic Contract addressed the subject of "assumption of risks and release of agency liability." It provided, in pertinent part, as follows:
In adoption placement situations there are risks which may or may not be known to the Prospective Adoptive Parents, the Agency, its staff, or others involved. Such risks usually involve legal or medical issues and may be either significant or of little concern. Notwithstanding the best efforts of the Agency and its staff and consultants, some risks may not be knowable or known.
Acknowledging this, the Prospective Adoptive Parents hold the Agency harmless and assume the risks of adoption as follows:
Change of Prospective Adoptive Parents' State of Resident. . . .
Social and Medical History of Child. The Agency will provide the Prospective Adoptive Parents prior to "matching" with all available social and medical history of the birth mother, birth father and child to the extent deemed relevant by Agency staff. Any changes in information will be reported to the Prospective Adoptive Parents as they become known. At the earliest possible moment, but in any event prior to finalization of the adoption, the Prospective Adoptive Parents will be provided with written reports of this information. To a large extent, the information is obtainable only from the birth parents and is thus subject to unreliability. The Prospective Adoptive Parent(s) agree to hold Adoption Advisory Associates free from all liabilities arising from the provision of incorrect information.
Gender and Other Characteristics of Child. The gender of a prospective adoptive
child cannot always be accurately predicted at the time of matching, nor can the Agency predict an adoptive child's future personality, medical problems, learning disabilities, appearances or inherited characteristics.
Non-availability of Identified ("Matched") Child for Adoption. While the Agency agrees to make every reasonable effort to see that a "matched" child is available for placement and adoption immediately after birth, the Agency is unable to guarantee such availability given the nature, extent, and variability of the legal and medical risks involved. The Prospective Adoptive Parents assume all risks, both known and unknown, that may at any time impair, delay, or preclude readiness or availability of a "matched" child for placement after birth. (It is specifically understood that Florida law precludes the possibility of the Agency entering into a placement contract with the birth parents prior to the birth of a child to assure placement.)
Rights of Birth Father. The birth father of a child, whoever and wherever he is, has a right to due process of law with regard to all legal events concerning the child and he has a right to petition the court and make a claim, if he so desires, for the custody of the child unless he has surrendered the child for adoption, has executed a denial of paternity, or his parental rights have been terminated by a court of competent jurisdiction. The Agency's attorney will address birth fathers' rights as required by law. These efforts are dependent upon the Agency's receiving reliable information from birth mothers as to the identity and whereabouts of birth fathers. (The Prospective Adoptive Parents will be advised prior to matching if a birth mother states that she does not know the identity and/or location of the birth father.) Accordingly, the Prospective Adoptive Parents will hold the Agency harmless for any errors caused by misinformation provided by the birth mother to the Agency.
Disruption of Placement. It is possible that a birth mother or birth father who has surrendered a child for adoption may make an attempt to revoke his or her surrender before finalization of the adoption. Should the Agency be unable, despite its best efforts, to resolve such a situation without resort to judicial proceedings, it may be the Agency's decision to return custody of the child to its birth mother and/or birth father unless, in its sole discretion, the Agency were to determine that some other plan, including remaining in the adoptive home, was in the best interests of the child. Should this be the case, the Prospective Adoptive Parents will have the option of undertaking the expense of any resulting judicial proceedings in an effort to maintain the placement, or may choose to relinquish the placement with no further rights or responsibilities. In any event, in the Agency's sole discretion, the child may be removed from the adoptive home and placed in Agency foster care until the child's final legal status is determined.
Non-acceptance or Relinquishment of Placement. The Prospective Adoptive parents may, at any time, decline to accept placement of a particular child for adoption, or, having accepted placement, decline to continue such placement. Nevertheless, if after birth the Agency, within its sole discretion, determines the said child to be adoptable, the Prospective Adoptive Parents will be responsible for all costs relative to foster placement of the child and for all services to the extent other payors are not legally responsible, unless and until (a) an adoption with other parents is completed or
(b) legal responsibility is accepted by other
persons or agencies. Provided, however, that the Prospective Adoptive Parents will not be responsible for such costs if the Agency, in its sole discretion determines that said child is not adoptable for medical, social, or legal reasons.
Agency Legal Error. . . .
Risk of Error of Other Professionals. . . .
Private Agreements With Birth Parent(s) Unenforceable. No promises or representations made to the Prospective Adoptive Parents by a birth parent are enforceable by the Agency or a court.
Section VI of the Domestic Contract contained the following "miscellaneous" provisions, among others:
Accurate Information from Prospective Adoptive Parents. The Prospective Adoptive Parents have completed Agency application materials and submitted a biographical photo album and certain required documentation, all of which are incorporated herein by this reference, and understand that any inaccurate information provided constitutes grounds for termination of this agreement by the Agency and forfeiture of any fees paid to the Agency. . . .
D. Prospective Adoptive Parents as Agents for One Another. The Prospective Adoptive Parents are the agents for one another for the purpose of the Agency's reliance upon any communication, decisions, or agreements between the Agency and the Prospective Adoptive Parents. . . .
Termination. This agreement shall terminate two (2) years from the date hereof or upon finalization of the adoption of a child placed by the Agency with the Prospective Adoptive Parents for that purpose, whichever occurs earlier. Provided, however, that the obligations of the Prospective Adoptive Parents to provide the Agency post-adoption pictures and written updates on the child's progress shall survive until the child is eighteen (18) years of age.
The Agency, in its discretion, reasonably applied, may terminate its relationship with the Prospective Adoptive Parents, if it is determined by the Agency, after consultation
with the Prospective Adoptive Parents, that the Agency's program and the Prospective Adoptive Parents' goals, expectations, and/or intentions regarding adoption are incompatible.
Limitation of Actions. No claim in contract or tort arising from the obligations or subject matter of this agreement shall be maintained unless brought within one (1) year of the termination of this agreement.
Entire Agreement/Severability. This agreement, including the Agency's current Summary of Estimate Fees & Expenses and Refund Policy, attached hereto, sets forth the entire, sole, and exclusive understanding of the parties. No promises or representations previously or contemporaneously made are enforceable. Any changes in this agreement must be in writing and signed by the party to be charged with any new or modified undertaking. If any portion or portions of this Agreement are found by a court of competent jurisdiction to be unenforceable, the remaining Agreement shall remain in full force and effect, except as provided elsewhere herein.
The Domestic Contract (including the fee schedule included therein) was reviewed by the Department before it issued Petitioner a full-year regular license in 1998. At that time, the Department did not find the contract to be objectionable. Licensed Foster Homes Available for Petitioner's Use (Alleged Violations of Rules 65C-15.002(7) and 65C-15.025, Florida Administrative Code)
In April of 1998, Petitioner submitted to the Department the materials necessary for Edward and Irene Petow to
obtain a license to operate a foster home for Petitioner's use. 3/
The Department issued the Petows such a foster home license on May 10, 1998.
The Petows' foster home license expired on April 30, 1999, and was not renewed.
During the period that their license was in effect, the Petows were available to provide foster care services for children needing such services who had been placed in Petitioner's care.
Jewish Adoption and Foster Care Options (JAFCO), which has been at all times material to the instant case a Florida- licensed foster care provider, 4/ is presently willing and available to provide foster care services to these children (pursuant to an agreement it has with Petitioner), as it has been since Petitioner's inception. 5/
Audit of Petitioner's Financial Records (Alleged Violation of Rule 65C-15.010(3), Florida Administrative Code)
Petitioner has only had its financial records audited twice during the time it has been licensed.
The first audit was completed in or around June of 1997, at which time a report of the audit was prepared and submitted to the Department. This audit was for the fiscal year ending April 30, 1997. (Petitioner's fiscal year runs from May 1 to April 30.) The accountant who conducted the audit, Aubrey
Bourgeois, CPA, made the following "proposal" to Petitioner based upon his findings:
Through the course of the audit process it was evident that the association administrator, Ms. Cheryl Eisen, had spent an enormous amount of time maintaining the financial records of the organization.
We would like to propose that the accounting functions, including the bank reconcilliations and financial statement preparation be handled by our office on a monthly basis, therefore freeing Ms. Eisen for the day-to-day business and administrative duties. This would also allow us to prepare the accounting information according to generally accepted accounting principles. This would lessen the time needed to verify information during the year end audit. The only accounting functions that Ms. Eisen would need to continue to perform would be the cash receipts and cash disbursements. . . .
In the licensing report, dated June 12, 1997, which was signed by the District Administrator and his staff and contained the recommendation that Petitioner "receive a regular child- placing license, effective June 14, 1997, expiring April 30, 1998," the following statement regarding Mr. Bourgeois' "proposal" was made:
After reviewing all documentation, the department continues to have concerns regarding internal controls and the organizational structure of the governing body. The following changes are strongly recommended by the department:
1. The department agrees with the proposal submitted by the auditor, that the accounting functions, including bank reconciliations and financial statement preparation be handled by the accountant's office on a monthly basis.
The auditor's report indicated several possible weakness in the internal control structure of the agency, under the present system. . . .
At no time, however, did the Department ever order Petitioner to make this "change" proposed by Mr. Bourgeois.
Petitioner did not follow the suggestion made by Mr. Bourgeois (and endorsed by the Department) because, in its opinion, it would have been too expensive for it to have done so. (Many small businesses, like Petitioner, do not have an accountant perform "accounting functions" on a monthly basis because of cost considerations.) Petitioner's inaction did not prevent it from obtaining a full-year regular license in 1998.
As noted above, the 1998 "licensing report" prepared by Department staff, a copy of which Petitioner received along with its licensure certificate, indicated that the audit of Petitioner's financial records "need[ed] to be completed and submitted by June 30, 1998."
The June 30, 1998, deadline passed without the Department having received any audit report from Petitioner. By letter dated October 14, 1998, Ms. Willson "remind[ed]" Ms. Eisen that the report of Petitioner's May 1, 1997-April 30, 1998, fiscal year audit, which Petitioner had been directed to file by June 30, 1998, had not yet been received by the Department and that it was "imperative" that the Department receive the report "as soon as possible" inasmuch as "[a]n annual audit is a requirement of the licensing process."
By March 2, 1999, despite Ms. Willson's "remind[er]," the Department had still not received an audit report from Petitioner for the May 1, 1997-April 30, 1998, fiscal year. Accordingly, as indicated above, in her letter to Petitioner of that date advising Petitioner of relicensing requirements, Ms. Willson warned Petitioner that if it did not submit, on or before March 23, 1999, an audit report for the previous fiscal year, "corrective action" would be taken.
On March 23, 1999, Petitioner provided the Department with an audit report for the fiscal year ending April 30, 1998.
In April of 1999, Ms. Eisen was hospitalized with a broken arm and leg as a result of an accident. She was in the hospital and in in-patient rehabilitation for more than a month. During this period of time she was unable to gather the records Petitioner's accountant, Mr. Bourgeois, needed to complete the audit for the fiscal year ending April 30, 1999.
On or about June 30, 1999, Petitioner delivered to Mr. Bourgeois the records necessary for him to complete an audit for the fiscal year ending April 30, 1999.
By letter dated July 15, 1999, Petitioner informed the Department that the audit for the fiscal year ending April 30, 1999, would be completed on or about August 15, 1999.
When Ms. Eisen received the Department's July 15, 1999, Notice of Intent, she instructed Mr. Bourgeois to discontinue work on the audit for the fiscal year ending April 30, 1999,
because, as she later explained to the Department, she wanted "to avoid the expense of a report [Petitioner was] no longer obligated to provide to the Department."
Upon subsequently learning that the Department had granted Petitioner a one-year Restricted Certificate, effective July 31, 1999, Ms. Eisen requested Mr. Bourgeois to resume his work on the audit.
By letter dated August 10, 1999, Ms. Eisen advised Ms. Willson that the audit would "be delayed until September."
As of the time of the final hearing in the instant case, the audit of Petitioner's financial records for the fiscal year ending April 30, 1999, had not yet been completed.
Verification of Screening Requirements (Alleged Violation of Rule 65C-15.016(2)(b), Florida Administrative Code)
Before working as outside legal counsel for Adoption Connection, Ms. Eisen (who is the only remaining non-clerical employee of Petitioner's 6/ ) was screened by Adoption Connection and, on or about September 2, 1993, she received "clearance" from Adoption Connection (based upon Adoption Connection's determination that she met screening requirements). Ms. Oken and Ms. Petow also had been screened by, and received "clearance" from, Adoption Connection.
Ms. Oken was fired by Adoption Connection in March of 1995, at the same time Ms. Eisen's services were terminated by the agency. Ms. Petow continued working for Adoption Connection
until some time prior to February 2, 1996 (the date she was hired by Petitioner).
When Petitioner was seeking its initial license in 1996, Ms. Willson's predecessor advised Ms. Eisen that the "clearance" she, Ms. Oken, and Ms. Petow had received from Adoption Connection could be "transferred" and that she and her colleagues did not need to undergo re-screening to be employed by Petitioner. 7/
As noted above, the 1998 "licensing study" prepared by Department staff noted that "[s]creening documentation ha[d] been kept up-to-date," but that Ms. Eisen would "be due for 5-year re- screening in July 1998, which would include FDLE and local law checks."
Ms. Oken and Ms. Petow (both of whom continued to work for Petitioner through at least June 30, 1999) were never re- screened.
As of the time of the final hearing in the instant case, Ms. Eisen had not been re-screened either; however, subsequent to the close of the hearing (as reflected by Petitioner's post-hearing submissions supplementing the evidentiary record), she submitted to re-screening. The criminal records check revealed no disqualifying offenses. (The evidentiary record is silent as to whether the Florida Protective System Abuse Registry portion of the re-screening has been completed.)
Training of Petitioner's Staff (Alleged Violation of Rule 65C- 15.018(2), Florida Administrative Code)
On June 30, 1999, when Ms. Willson reviewed Petitioner's personnel files, Petitioner had four non-clerical employees: Ms. Eisen; Ms. Oken; Ms. Petow, who, in addition to providing foster care services, worked for Petitioner as a birth mother support coordinator; and Marla Gross, Esquire, who was a staff attorney.
Petitioner's personnel file for Ms. Eisen revealed that: her date of hire was February 2, 1996; during her last full year of employment (from February 2, 1998 to February 1, 1999), she had received "additional training" by attending the "Governor's Children Summit" (on February 12, 1998), The Florida Bar Family Law Section's "Legislation Seminar" (which lasted in excess of 15 hours over a three-day period, from March 26, 1998 to March 28, 1998), a "NACAC" 8/ conference (in August of 1998 9/ ), and an "Assoc. Fam. and Con. Courts" conference (in October of 1998 10/ ); and since February 2, 1999, she had obtained further "additional training" by participating in the activities of the "S.W. Fla. Adopt. Task Force" (in March of 1999).
Petitioner's personnel file for Ms. Oken revealed that: her date of hire was February 2, 1996; during her last full year of employment (from February 2, 1998 to February 1, 1999), she had received "additional training" by attending a three-hour presentation given on February 20, 1998, on "domestic violence
and clinical interventions" sponsored by Women in Distress of Broward County, Inc., a two-hour program held on March 9, 1998, on "domestic abuse" sponsored by the Jewish Federation of South Palm Beach, and a three-hour seminar conducted on January 19, 1999, on "psychological issues in [the] treatment of sexual violence" sponsored by the 45th Street Mental Health Center, Inc.; and since February 2, 1999, she had obtained further "additional training" by attending a two-hour seminar conducted on March 23, 1999, on "violent attachments" sponsored by the 45th Street Mental Health Center, Inc.
Petitioner's personnel file for Ms. Petow revealed that: her date of hire was February 2, 1996; during her last full year of employment (from February 2, 1998 to February 1, 1999), she had received "additional training" by attending the "Governor's Children Summit" on February 12, 1998, and by being a "part-time student pursuing [a] social work degree."
Petitioner's personnel file for Ms. Gross revealed that Ms. Gross' date of hire was January 12, 1999, and contained no indication that she had received any training in the five and a half months that she had been employed by Petitioner (from January 12, 1999 to June 30, 1999).
Foster Parent Training (Alleged Violation of Rule 65C-15.027(1), Florida Administrative Code)
Petitioner did not provide foster parent training to the Petows.
Ms. Eisen was under the impression that Petitioner, as a private agency, was not required to provide such training.
She discussed the matter with Jodi Peterson, a Department employee assigned to the Department's District 9 MAPP Unit, who, on June 17, 1999, by facsimile transmission, advised Ms. Eisen that, "[a]s [Ms. Eisen] had said, trng. hrs. aren't required for private relicensure." 11/
Pre-Placement Screening: The James Case (Alleged Violation of Rule 65C-15.028, Florida Administrative Code)
Lori and Jesse James were clients of Petitioner's.
Ms. James was a Florida-licensed attorney, who was not engaged in the active practice of law. (She worked for a social services agency in Tampa.)
The Jameses were matched with a birth mother residing in Illinois.
The birth mother gave birth in a hospital in Chicago.
The child tested positive for cocaine exposure at the time of birth. Accordingly, a plan for placement with someone other than the birth mother had to be devised before the child could be released from the hospital.
On August 12, 1998, after the child was born, a home study was conducted in the James home.
Subsequently, Ms. James left to go to Chicago to take custody of the child and bring the child back to her and her husband's home in Tampa. Mr. James did not accompany his wife on this trip.
The child's guardian consented to the child's adoption by the Jameses and took the necessary steps to have the child delivered to Ms. James, who, until her departure from Chicago, kept the child in her hotel room.
At the time of the placement of the child with Ms. James, a determination had not been made that both Ms. and Mr. James met screening requirements. It was not until August 20, 1998, that all background screening of the Jameses was completed and Petitioner was able to conclude that the Jameses "met the pre-adoption requirements of Fla. Statutes 63.092(2)(b)."
Ms. James returned from Chicago to her home in Tampa with the child sometime after August 20, 1998.
Services to Adoptive Parents (Alleged Violation of Rule 65C- 029(2) and (3), Florida Administrative Code
At all times material to the instant case, Petitioner's social worker has had post-placement contact with each adoptive family (who has adopted through Petitioner) on at least a monthly basis prior to the finalization of the adoption (which takes at least 90 days from the date of placement).
Sometimes (usually no earlier than the third month after placement) the contact has been made by telephone.
There have been instances where a month has passed without Petitioner's social worker having had face-to-face contact with an adoptive family; however, Petitioner, in good faith, believed that, for purposes of compliance with Rule 65C-
15.029(2), Florida Administrative Code (which mandates that the agency's social worker "visit" with adoptive parents "at least monthly, after the placement of a child, until the adoption is finalized"), "visiting" by telephone was acceptable.
Family Case Records (Alleged Violation of Rule 65C-15.032(1), Florida Administrative Code)
The record lacks persuasive competent substantial evidence establishing that, in any particular case, Petitioner has failed to include in its files available information (concerning the family of a placed child) that Rule 65C- 15.032(1), Florida Administrative Code, requires a child-placing agency to include in its records.
Adoptive Home Records (Alleged Violation of Rule 65C-15.034(5) and (8), Florida Administrative Code)
The record lacks persuasive competent substantial evidence establishing that, in any particular case, Petitioner has failed to include in the files it maintains the summaries of adoptive family contacts required by Rule 65C-15.034(5) and (8), Florida Administrative Code.
Compliance with INS Regulations (Alleged Violation of Rule 65C- 15.036(3), Florida Administrative Code)
In or about 1999, Petitioner received a telephone call from Cynthia Reilly, the estranged adult daughter of a client of Petitioner's, who alleged that her father had been abusive when she had been a child. Ms. Reilly's father and his wife (Ms. Reilly's step-mother) were seeking to adopt a Romanian child with Petitioner's assistance. Petitioner had already prepared a home
study and submitted it to the Immigration and Naturalization Service (INS) at the time it received Ms. Reilly's telephone call.
There was no "verifiable record" that the abuse about which Ms. Reilly complained had occurred.
Petitioner contacted Ms. Reilly's father, who denied the allegations made by his daughter, and requested him to undergo psychological testing. The father complied. Following the preparation of the psychological report, Petitioner submitted it, along with an addendum to the previously submitted home study, to the INS.
INS requested that further psychological testing be performed. Petitioner advised Ms. Reilly's father of this request, and he agreed to undergo such additional testing.
The psychologist who conducted the additional testing found no impediment to Ms. Reilly's father becoming an adoptive parent, and so indicated in the report he prepared. This report, like the first psychological report, was sent to INS, together with another addendum to the home study.
At the time it first heard from Ms. Reilly, Petitioner had asked her to reduce her allegations against her father to writing and to provide her written statement to Petitioner. After receiving the reports of the psychologists, Petitioner repeated its request Ms. Reilly, however, continued to refuse to provide Petitioner with any written allegations against her
father. She did, though, furnish the INS with such a document. At first, she refused to give INS permission to provide Petitioner with a copy of this document, but she finally acquiesced.
After reviewing Ms. Reilly's written allegations against her father, Petitioner determined that an independent evaluation of the case should be performed.
Sarah Franco of JAFCO performed this independent evaluation. She concluded that family counseling was necessary.
When Petitioner told Ms. Reilly's father that there would need to be family counseling, her father told Petitioner, "Well, I'm finished with you all."
Ms. Reilly's father and Petitioner thereupon terminated their contractual relationship.
Release of Information Regarding Romanian Adoption Law
The record lacks persuasive competent substantial evidence that Petitioner, at any time, knowingly disseminated inaccurate or misleading information about the law governing adoptions of Romanian children.
Client/Birth Mother Complaints Concerning Petitioner's Fees (Alleged Violation of Rule 65C-15.010(4)(b), Florida Administrative Code) and "Business Practices"
The Kellers (Ted and Susan) and Petitioner entered into a Domestic Contract, which had an effective date of December 29, 1996, and an expiration date of December 26, 1998.
During the first year of the contract, the "biographical photo album" (referred to in Section VI of the contract) that the Kellers had submitted to Petitioner was shown "a few times," but the Kellers were not selected by any of the birth mothers who had viewed the album.
During the second year of the contract, the Kellers were selected by a birth mother from Alabama. The birth mother came to South Florida to meet with, and be counseled by, members of Petitioner's staff. Petitioner paid for the birth mother's transportation expenses.
The birth mother spent three or four days in the South Florida area, during which time she stayed in an apartment rented and maintained by Petitioner for the purpose of housing out-of- town birth mothers.
The birth mother assured the Kellers that she would, following the birth of her child, consent to the Kellers adopting the child.
Petitioner made a good faith, but unsuccessful, effort, prior to the child's birth, to contact the child's birth father.
Based upon what it had heard from others, however, Petitioner was led to believe that the father would also give his consent to the adoption.
Petitioner, though, never guaranteed the Kellers that "there would not be a problem" with obtaining the birth father's consent.
The birth mother decided to give birth in Alabama, rather than in South Florida.
The child was born in or about May of 1998.
Petitioner contacted an Alabama attorney to help handle the adoption.
When Ms. Eisen learned that there might be a problem with the adoption, she traveled to Alabama at Petitioner's expense.
The adoption "fell-through" because the birth mother and father, after the birth of the child, refused to give their consent.
The Kellers subsequently expressed an interest in adopting a Romanian child.
On October 15, 1998, the Kellers and Petitioner entered into an International Adoption Services Contract (International Contract). With respect to the fees to be paid by the Kellers to Petitioner under the International Contract, the Kellers were given a credit for monies that they had paid Petitioner pursuant to the Domestic Contract.
Section I of the International Contract described the "agency's undertaking, services and exclusions" and provided, in part, as follows:
Agency's Undertaking. The Prospective Adoptive Parents request, and the Agency is willing to provide, international adoption services with the goal of providing to the Prospective Adoptive Parent(s) an offer of placement of an adoptable child from the
country of Romania ("the home country") in the Prospective Parent'(s') home at the earliest possible moment. The Agency agrees to make a diligent effort to place such a child with the Prospective Adoptive Parent(s) in accordance with the social service policies and procedures of the Agency, as established and from time to time amended by the Agency's Board of Directors, and in accordance with federal and Florida statutory and administrative law, and the laws of the home country.
Agency Services. The Agency's international adoption services include, but are not limited to, every aspect of assisting the Prospective Adoptive Parent(s) through departure for the home country and upon return, including interface with the United States Immigration and Naturalization Service (INS), and coordination with the agency in the home country ("the foreign
agency"). . . .
Section II of the International Contract addressed the subject of "fees." It provided as follows:
Basis for Determining Fees. Pursuant to Florida Administrative Code section 65C- 15.019(4)(b), the Agency's adoption fees have been established based on the reasonable costs of the following services for the total international adoption program, including but not limited to: (1) home study services;
(2) counseling services; (3) legal services;
(4) foster care services; (5) pre- and post- placement social services; (6) contracted services with foreign agencies; (7) other necessary services, including "dossier" preparation; and (8) agency facilities and administrative costs.
Estimated Fees. The Agency's estimated fees statement ("Fee Statement") is attached and incorporated in this agreement by this reference. The Prospective Adoptive Parent(s) Acknowledge(s) the Fee Statement has been thoroughly reviewed by him/her/them
with Agency staff and it is completely understood and accepted.
Timing and Manner of Payment of Fees. A Home Study Services Fee will have been paid to the Agency prior to execution of this agreement. The "At Contract" fees shown on the Fee Summary are due upon the execution of this agreement, after the Agency's approval of the Prospective Parent's(s') home study. The "Upon Match" fees shown on the Fee Statement, payable to "AAA Escrow Account" ("Escrow") are due in the form of a cashier's check at the time the Prospective Adoptive Parent(s) accept(s) the match, as described in paragraph III, below.
Section III of the International Contract addressed the subject of "matching, placement, and finalization of adoption." It provided as follows:
Matching. Identification of a child for adoption by the Prospective Adoptive Parent(s) ("matching") will occur by means of his/her/their receiving through the Agency pictures and background information on children fitting their specific requests as to age, gender, medical and social background, within the limitations generally known to attend adoptions from the home country, as more particularly described to the Prospective Adoptive Parents by the Agency.
Placement. Placement of the child with the adoptive parents occurs in the country, to which at least one of them (if a married couple) must travel to take placement.
Finalization of Adoption. The final legal adoption of the child with the adoptive parents will occur in the home country prior to the child's departure to the United States with the Prospective Adoptive Parent(s).
Among the subjects addressed in Section V of the International Contract was "re-finalization of adoption." The following provision in Section V dealt with this subject:
D. Re-Finalization of Adoption. The Prospective Adoptive Parent(s) agree(s) to legally re-finalize the adoption of the child in the state where the Prospective Adoptive Parent(s) reside(s) as soon as permitted under applicable state law. For Florida residents, legal fees paid to the Agency include the expense of re-finalization of adoption in Palm Beach County, Florida, by the Agency's legal counsel. Non-Florida residents are responsible for obtaining and compensating counsel in their home state to re-finalize the adoption. Non-residents' home states may require local social worker's reports, filing fees, and other expenses which are the sole responsibility of the Prospective Adoptive Parent(s).
Nevertheless, it is understood that the
adoption is legally finalized in the home country before the child immigrates, such that all rights and responsibilities for the child pass to the Prospective Adoptive Parent(s) at that time.
Paragraph E of Section V of the International Contract addressed the subject of "non-placement" and provided as follows:
In the event the Prospective Adoptive Parent(s) are matched with a child but no placement ultimately occurs, the Agency shall continue its best efforts, as set forth in paragraph I.A., above to cause a placement to occur, unless the Prospective Adoptive Parent(s) elect to cancel the contract and receive a refund of all fees remaining in Escrow pursuant to this contract.
In Section VI of the International Contract, the subject of "assumption of risks and release of agency liability" was addressed. This section provided as follows:
In adoption placement situations there are risks which may or may not be known to the Prospective Adoptive Parent(s), the Agency, its staff, consultants or other third parties involved, hereinafter referred to collectively as "the Agency" in the context of limitations or release of liability. Such risks usually involve legal or medical issues and may be either significant or of little concern. Notwithstanding the best efforts of the Agency and its staff and consultants, some risks may not be knowable or known.
Acknowledging this, the Prospective Adoptive Parents hold the Agency harmless and assume the risks of adoption as follows:
Change of Prospective Adoptive Parent's(s)' State of Residence. . . .
Social and Medical History of Child. . . .
Gender and Other Characteristics of Child. Though the Prospective Adoptive Parent(s) may specify the gender of the child to be adopted prior to matching, the Agency cannot predict an adoptive child's future personality, medical problems, learning disabilities, appearance or inherited characteristics.
Age of Child at Time of Placement/Non- availability of Identified ("Matched") Child for Adoption. It is anticipated that your child will be no more than eight (8) months old at the time you travel to the home country to take placement of him/her for adoption. This is based upon the normal course of the process for freeing a child for adoption and approving a U.S. placement as that process is presently defined. Nevertheless, delays could occur such that the child would be older at the time of placement. Should a delay occur such that Child will be more than one year old at the time of immigration, the Prospective Adoptive Parent(s) may elect not to take placement of the child, but request a match with another child at the earliest possible moment, or
cancel this contract and receive a refund of all fees remaining in Escrow.
Additionally, while the Agency agrees to make every reasonable effort to see that a "matched" child remains available for placement and adoption from the home country, the Agency is unable to guarantee such availability given the nature, extent, and variability of the political, legal and medical risks involved. The Prospective Adoptive Parent(s) assume all risks, both known and unknown, that may at any time impair, delay, or preclude the readiness of availability of a "matched" child for placement for adoption.
Non-acceptance of Placement. An unadoptable child is a child suffering a medical condition that would cause the child to have other than a normal quality of life, as apparent at the time of placement, or that is not legally free for adoption. The Prospective Adoptive Parent(s) may, at any time, decline to accept placement of an unadoptable child, and request a match with another child at the earliest possible moment, or cancel this contract and receive a refund of all fees remaining in Escrow.
Risk of Error of Other Professionals. . . .
Private Agreements With Third Parties Unenforceable. No promises or representations made to the Prospective Adoptive Parents by any third party are enforceable by the Agency and are not the responsibility of the agency to enforce.
Section VII.G. of the International Contract covered the subject of "termination" and provided as follows:
The Agency, in its discretion, reasonably applied, may terminate its relationship with the Adoptive Parent(s), if it is determined by the Agency, after consultation with the Prospective Adoptive Parent(s), that the Agency's program and Prospective Adoptive
Parent's (s') goals, expectations, and/or intentions regarding adoption are incompatible.
Section VII.H. of the International Contract addressed the subject of "entire agreement/severability" and provided as follows:
This agreement, including the Agency's current Fee Statement, and the Agency's agreement with the foreign agency, both attached hereto, sets forth the entire, sole and exclusive understanding of the parties. No promises or representations previously or contemporaneously made are enforceable. Any changes in this agreement must be in writing and signed by the party to be charged with any new or modified undertaking. If any portion or portions of this Agreement are found by a court of competent jurisdiction to be enforceable, the remaining Agreement shall remain in full force and effect, except as provided elsewhere herein.
The "release of previous contracts" was addressed in Section VII.I of the International Contract, which provided as follows:
This agreement supercedes any previous contracts between the parties and releases the parties from all obligations thereunder.
An Addendum to the International Contract was executed by the Kellers on October 19, 1998, and by Petitioner on
October 20, 1998. It provided as follows:
The agreement for international adoption services ("the Agreement") of even date by and between Adoption advisory Associates ("the Agency") and Susan and Ted Keller ("Susan and Ted") is hereby amended as follows:
The home study update fee shall be $750
The fees due "at contract" shall be
$852.41
The fees due "upon match" shall be payable as follows:
$6,416.68 due upon match;
$6,416.66 due 90 days later.
$6,416.66 due 30 days before the anticipated date for departure to Romania.
Notwithstanding the effect of the foregoing timetable of payments, all fees shall be paid in full prior to departure for Romania.
Should Susan and Ted elect to cancel the Agreement as provided in paragraph V.E., VI.D., and VI.E. thereof, the refund amount due shall be $19,250, in full settlement of all Agency obligations hereunder. Provided, however, that the Agency shall not be liable for refund of the $2,500 paid to the foreign agency until sixty (60) days after receipt by the Agency of written notification by Susan and Ted of their cancellation of the contract.
On or about December 15, 1998, Petitioner advised the Kellers by facsimile transmission that two Romanian children had been referred to Petitioner.
After being provided with health histories of the children, the Kellers indicated, in a December 16, 1998, facsimile transmission, that they were "interested" in one of the children, a boy who had been surrendered by his natural parents and was, at the time, approximately one month old, and that they looked forward to "see[ing] a picture [of the boy] and get[ting] more information [about him] from Romania."
Not having received any additional materials concerning the boy, the Kellers, on January 3, 1999, informed Petitioner in writing that they had "decided to cancel [their] contract with [Petitioner], as there seemed [to them that there was] little or no reason to believe that anything [would] materialize." In their written correspondence, the Kellers demanded, among other things, "that $3750.00 be returned" to them.
Petitioner did not obtain photographs of the boy until January 11, 1999. Upon receiving the photographs, Petitioner sent them to the Kellers.
Later that day, Ms. Eisen spoke with Mr. Keller, who reiterated his and his wife's desire to cancel the International Contract they had entered into with Petitioner.
On January 13, 1999, Ms. Eisen sent the following letter to the Kellers:
Pursuant to your letter dated January 3, 1999, and as agreed in my telephone conversation with Ted on January 11, 1999, we are cancelling our contract with you dated October 15, 1998, and are sending you the following:
your original home study dated 12/29/96;
your home study update dated 9/30/97;
your DCF Protective Services clearance dated 5/28/98 (all other clearances are now more than one year old and thus outdated);
your photo album;
our check number 11186 in the amount of
$1,602.41.
With regard to the refund check, I was able to bring the matter before the agency's Board of Directors last evening at its quarterly meeting. The Board unanimously approved cancellation and a refund in the amount of the check tendered upon signing your international placement contract three months ago, notwithstanding that we have already referred to you a child, Ilie, born
November 16, 1998, which you indicated you wished to pursue.
Michael and Rasamee Wolf were residents of Maryland. They had previously adopted a child with the assistance of Adoption Connection. In or about June of 1996, the Wolfs submitted to Petitioner an Application for Adoption, a family photograph album, a copy of a home study that had previously been done, and a check made payable to Petitioner.
It took Ms. Eisen approximately ten days to contact Mr. Wolf (who traveled quite a bit) and advise him there were "additional requirements that had to be met before [Petitioner] could enter into a contract with [him and his wife]." Mr. Wolf instructed Ms. Eisen to "deposit the check" and told her that he and his wife would "work on getting the stuff in."
Ms. Eisen followed Mr. Wolf's instructions and deposited the Wolfs' check.
In December of that same year (1996), after some delay, the Wolfs provided Petitioner with the required materials.
Thereafter, on December 17, 1996, Petitioner and the Wolfs entered into a Domestic Contract.
Prior to the expiration of the contract, after having been offered a match by Petitioner, the Wolfs informed Petitioner that they wished to cancel the contract.
Thereafter, Ms. Eisen sent the Wolfs the following letter dated September 22, 1998:
This is to confirm my conversation with Mike last week, when we offered you placement of Melanie's child born in Texas on September 11, that you have decided to withdraw from our list of waiting parents.
We know this was not an easy decision, but recognize that only you know what is best for your family at this time.
Our two-year contract with you expires on December 17, 1998. It is my understanding that you wish to cancel that contract, and we concur. By the contract's terms, there is no refund due to you of fees previously paid.
Please sign and return the enclosed copy of this letter to indicate your cancellation of our contract. Your album is being returned under separate cover.
We wish you the best and hope to keep in touch.
By letter dated October 23, 1998, Michael Salnick, Esquire, an attorney retained by the Wolfs, advised Petitioner that the Wolfs disagreed that they were not entitled to a refund and he demanded that Petitioner "send a check in the amount of seven thousand five hundred dollars to [Mr. Salnick's] office payable to Michael Wolf."
Petitioner's Board of Directors, at its January 12, 1999, quarterly meeting, voted unanimously not to refund any
monies to the Wolfs. Ms. Eisen notified Mr. Salnick of the Board of Directors' action by letter dated January 13, 1999.
In August of 1996, Gilda Marin, a single woman in her forties, entered into a Domestic Contract with Petitioner.
Ms. Marin paid Petitioner approximately $7,500.00.
During the home study, Ms. Marin stated that she wanted "to adopt a newborn Cuban or Caucasian baby girl in good physical and mental health." In addition, in the "Special Situations Questionnaire" that she filled out, she indicated that she would accept an "interracial infant" if it was "Cuban/Caucasian."
During the two years that her contract with Petitioner was in effect, Ms. Marin was offered a biracial baby and no other placements.
Following the expiration of her contract, she filed a complaint with the Department after being told by Petitioner that she was not entitled to any refund.
Upon learning of Ms. Marin's complaint, Ms. Eisen sent the following letter, dated August 9, 1999, to Ms. Marin:
Enclosed you will find: (1) a summary by the Florida Department of Children & Families of your complaint against our agency and (2) our response to your complaint.
As you will see from our response, we discovered a very big and very regrettable mistake in our handling of your case as a result of the Department's investigation of your complaint. Specifically, we were looking to find for you a child, originally a
girl, of Cuban/Caucasian background, not of Cuban or Caucasian background.
We assume the Department has already informed you of our desire to offer you a Romanian placement with no "domestic agency fee" charge (a savings of $8,500), as set forth in our response. Though we have not heard back as to your reaction, we have included your name on a list of our current clients we recently submitted to the Department, just in case you might still be interested in considering Romanian adoption.
Gilda, I personally hope you will accept our sincere apology for our error in handling your case, and that you will let us make it up to you as proposed. I would like the opportunity of meeting with you at your earliest convenience to discuss the entire matter and, if you are interested, go over what you can expect in terms of time, etc., until match and placement. I would also like you to meet the attorney I hired in January to be exclusively responsible for overseeing the Romanian program. She is presently in Romania, but will return day after tomorrow, so we could see you as early as Thursday. I know that this a particularly busy time for you at the law school, so we would be happy to come to you, either at work or at home.
I hope I have managed to convey the depth of our remorse for the disappointment and upsetment we caused you. I know you hesitated to formalize your complaint against this agency, which causes me to believe there may be hope of salvaging our relationship.
Please let us hear from you.
Ms. Marin responded to Ms. Eisen's August 9, 1999, letter by writing Ms. Eisen and informing her that she did "not wish to continue working with Adoption Advisory Associates any further."
There has been no further communication between Ms. Marin and Petitioner.
Frank and Suzanne La Barbera entered into a Domestic Contract with Petitioner on January 30, 1997.
Inserted on the bottom of the first page of the contract was the following handwritten notation that was initialed by Ms. Eisen and the La Barberas: "No HIV, unsightly facial deformities, blindness, deafness or other life-altering or threatening conditions as known at the time of placement."
Before they signed the contract, the La Barberas stated to Petitioner that they had "concerns" that two years (the length of the contract) might not be enough time for Petitioner to find a match for them.
While Petitioner, in response to these "concerns" voiced by the La Barberas, may have (truthfully) indicated that, up until that point in time, it had never failed to offer a client a placement, at no time did it guarantee the La Barberas or any other prospective adoptive parent(s) that, prior to the expiration of the contract, they would be offered a placement.
Notwithstanding their concerns, the La Barberas entered into a contractual relationship with Petitioner. As Ms. La Barbera testified, they were "desperate."
The La Barberas paid Petitioner approximately
$6,600.00.
Shortly after they signed the Domestic Contract, the La Barberas were advised that they were matched with a birth mother.
The La Barberas met with the birth mother in the hospital after the child was born (in or about March of 1997).
Following the meeting, the birth mother decided she did not want her child to be placed with the La Barberas and, therefore, no such placement was made.
A few months later, the La Barberas were offered a match by an attorney, Stuart Horowitz, Esquire. After seeking and receiving (at no additional cost) Ms. Eisen's legal advice on the matter, the La Barberas declined Mr. Horowitz's offer.
In August of 1997, the La Barberas were considering taking a cruise/vacation for which they had to make a nonrefundable deposit. On or about August 17, 1997, they telephoned Petitioner to find out if there were "any prospects of a match for them" that might interfere with their vacation plans. At the time, Petitioner knew of no such immediate "prospects" and so informed the La Barberas.
On or about August 19, 1997, the La Barberas made reservations and paid $2,458.00 (by credit card) toward their cruise/vacation.
On or about August 23, 1997, Petitioner contacted the La Barberas and told them that it had a match for them.
Rather than go on the cruise/vacation they had paid for, the La Barberas chose to stay in South Florida to be at the hospital when the birth mother with whom they had been matched gave birth to her child.
The La Barberas lost "close to $2,000.00" of the
$2,458.00 they had paid toward their cruise/vacation.
When the child was born, it had a cleft lip.
Upon being shown the child and noticing the child's cleft lip, Ms. La Barbera ran from the room crying.
The La Barberas decided not to take the child.
The child was thereupon placed with another couple.
Approximately, four weeks after the child was born, the child's lip was repaired.
Following the La Barberas rejection of the child, Petitioner's social services director recommended to them that they undergo counseling, a recommendation that they refused to follow.
No other placements were offered to the La Barberas during the remainder of the term of their contract with Petitioner.
David and Paula Bergeron entered into a Domestic Contract with Petitioner on October 6, 1998.
They paid Petitioner approximately $11,500.00 in "contract fees" on that same date.
On the agency Application for Adoption and the Department's Adoption Home Application forms that they filled out and submitted, the Bergerons falsely stated that they had never been arrested.
Background screening revealed that, contrary to the assertions the Bergerons had made on the aforementioned forms, both of them had arrest records.
Ms. Eisen, after learning about the Bergerons' arrest records, asked them to meet with her to explain why they had not revealed these arrests on their applications.
At the meeting, Ms. Bergeron claimed that she had forgotten about her prior arrests (which were for shoplifting in 1974 and possession of "dangerous drugs" in 1975), an explanation that Petitioner did not deem to be credible.
When he was asked about his failure to disclose his prior arrests, Mr. Bergeron told Ms. Eisen, "I thought that it was your job to do your homework and . . . its too bad. Now that you have discovered it, it's your problem."
Following Ms. Eisen's meeting with the Bergerons, she brought the matter of the Bergerons' lack of candor regarding their arrest records to the attention of Petitioner's Board of Directors.
By letter dated November 11, 1998, which read as follows, Ms. Eisen informed the Bergerons of the action taken by the Board of Directors:
As you know, our Board of Directors considered last night the Executive Directors' recommendation to cancel the agency's domestic adoption services contract with you in light of certain matters of a criminal nature which you failed to disclose in your application to adopt.
The Board decided to accept the recommendation of the Executive Directors. Accordingly, you are hereby notified of cancellation of our contract pursuant to section VI, thereto, which provides as follows:
"A. Accurate Information from Prospect[ive] Adoptive Parents. The Prospective Adoptive Parents have completed Agency application materials . . . and understand that any inaccurate information provided constitutes grounds for termination of this agreement by the Agency and forfeiture of any fees paid to the Agency."
Notwithstanding that the terms of the contract do not entitle you to any refund of contract fees, the Board has authorized a refund of $5,000.00 pursuant to the spirit of the general refund policy shown on the back of the Fee and Expense summary attached as the last page of the contract. A check in that amount and your photo album will be sent to you within fifteen (15) days.
On or about November 27, 1998, Petitioner sent the Bergerons a refund check in the amount of $5,000.00, which the Bergerons subsequently cashed.
In December of 1997, Mitchell and Tamra Brandt met with Ms. Eisen and Ms. Oken to discuss the possibility of Petitioner providing the Brandts with domestic adoption services.
During the meeting, the Brandts were shown, but never asked to sign, a Domestic Contract.
Although they did not enter into a Domestic Contract with Petitioner, the Brandts did pay Petitioner $1,500.00 to conduct a home study.
Everything that needed to be done to complete the home study, including background screening, was done.
Background screening revealed that Mr. Brandt had been arrested for grand theft in 1989. On the Application for Adoption form that the Brandts filled out on or about January 28, 1998, and submitted as part of the home study, they failed to disclose this arrest.
Background screening further revealed that there had been a report received and investigated by the Boca Raton Police Department on July 13, 1997, that Mr. and Ms. Brandt were involved in a "domestic disturbance." The police report reflected that Ms. Brandt had told the investigating officer that Mr. Brandt had, earlier that evening, "pushed her out their vehicle."
Following the completion of the home study, Petitioner advised the Brandts that, if they did not undergo counseling, Petitioner would not be able to "approve" their home study and enter into a contract to provide them adoption services.
The Brandts chose not to undergo counseling. Instead, they asked Petitioner for a refund of the $1,500.00 they had paid for the home study. Petitioner refused to give the Brandts a refund.
Subsequently, the Brandts went to another child- placing agency, which, for $1,500.00 (the same amount that Petitioner had charged the Brandts), performed a home study and later assisted the Brandts in adopting a baby girl.
The record lacks persuasive competent substantial evidence establishing the amount of the fees and costs paid by the Jameses to Petitioner, and the amount of other expenses they incurred, in connection with their adoption of the child with whom they had been matched by Petitioner.
On June 30, 1999, Vincent and Patricia Durante entered into an International Adoption Services Contract with Petitioner (the Durantes' International Contract). The provisions of the Durantes' International Contract were substantially similar in all material respects, except as noted below, to the provisions of the (original) International Contract between the Kellers and Petitioner set forth above (the Kellers' International Contract). Unlike the first paragraph of Section VI.D. of the Kellers' International Contract, Section VI.D. of the Durantes' International Contract provided as follows:
Age of Child at Time of Placement/Non- availability of Identified ("Matched") Child for Adoption. It is anticipated that your child will be no more than TBD* months old at the time you travel to the home country to take placement of him/her for adoption. This is based upon the normal course of the process for freeing a child for adoption and approving a U.S. placement as that process is presently defined. Nevertheless, delays could occur such that the child would be older at the time of placement. Should a
delay of more than 4 months occur, the Prospective Adoptive Parents may elect not to take placement of the child, but request a match with another child at the earliest possible moment.
Unlike the Section VII.G. of the Kellers' International Contract, Section VII.G. of the Durantes' International Contract provided as follows:
Termination. This agreement shall terminate two years from the date hereof or upon finalization of the adoption of a child placed by the Agency with the Prospective Adoptive Parents for that purpose, whichever occurs earlier. Provided, however, that the obligations of the Prospective Parents to provide to the Agency post-adoption pictures and updates on the child's progress shall survive until the child is eighteen (18) years of age.
The Agency, in its discretion, reasonably applied, may terminate its relationship with the Prospective Adoptive Parents, if it is determined by the Agency, after consultation with the Prospective Adoptive Parents, that the Agency's program and the Prospective Adoptive Parents' goals, expectations, and/or intentions regarding adoption are incompatible.
The Durantes paid Petitioner approximately $7,000.00.
On or about July 6, 1999, the Durantes telephoned Petitioner and advised that they had heard of a possible adoption opportunity in California that they were interested in investigating.
On or about July 8, 1999, Petitioner sent the Durantes the following letter:
Based on your call to us on Tuesday, July 6th, we understand that you would like to
come in and discuss some issues related to a potential domestic adoption situation. As such, Cheryl and Sally will be meeting with you and Vince on Tuesday, July 13th. Please note that we have ceased work on your international adoption file until such time and that this will delay the current processing of your paperwork.
If you have any questions, please do not hesitate to call.
Ms. Eisen and Ms. Oken had a lengthy meeting with the Durantes on July 13, 1999, concerning the "potential domestic adoption situation" in California. The Durantes were not charged any additional monies for the time Ms. Eisen and Ms. Oken spent meeting with them.
In or about August of 1999, the Durantes advised Petitioner that the "potential domestic adoption situation" in California had fallen through and that they were once again interested in pursuing an international adoption.
Petitioner thereupon worked with the Durantes to gather the documentation that would be necessary to effectuate an international adoption.
The Durantes had indicated that they wanted to adopt a girl. In or about October of 1999, Petitioner informed the Durantes that there was a Romanian girl named Elena potentially available for adoption through Petitioner. On or about
October 12, 1999, the Durantes got back with Petitioner and advised that they did not want to be considered as potential adoptive parents for Elena.
By letter dated October 21, 1999, the Durantes' attorney, Holly Davidson Schuttler, Esquire, requested a refund of the monies the Durantes had paid Petitioner.
Petitioner responded to this request by letter dated October 25, 1999, from Ms. Eisen to Ms. Schuttler, in which
Ms. Eisen stated, in pertinent part, the following:
In conclusion, we have never "misrepresented" our status to the Durantes, nor have they been "deceived." They have lost no money, and any time lost has been attributable to their own delays. If the Durantes wish to cancel their contract, all monies, other than the cost deposit (less funds already expended) are non-refundable as per the contract. We are prepared to continue our services to the Durantes until a placement occurs, as long as we have their cooperation.
I believe it would be beneficial for us to discuss this matter in person or by phone to further clarify the situation and to satisfy you and the Durantes of the security of their position with this agency. The Durantes and their adoption are very important to the agency and me, personally, and we will do all that is necessary to see to it that their adoption plans are realized.
Not having heard back from Ms. Schlutter, Ms. Eisen, on or about November 3, 1999, sent Ms. Schlutter the following letter:
I had hoped to hear from you by now in response to my letter of October 25, 1999.
It is important for us to know immediately whether the Durantes are reconsidering their position as expressed in your letter dated October 21, 1999, in light of my response.
If the Durantes would like to go forward under the contract, we have work to do to prepare their dossier, which entails
expenditure of funds from their costs deposit. We also need to know when they would be in a position to accept a referral as we have children waiting. Finally, I am going to be traveling to Romania on the 6th, and will be in and out of town throughout the month of November.
Please let me hear from you by noon on Friday, November 5.
Ms. Eisen and Ms. Schlutter spoke on the telephone on November 5, 1999. Ms. Schlutter indicated that she would get back with Ms. Eisen in about a month and let her know about the Durantes' intentions.
Approximately a month and a half passed without Ms. Eisen's hearing from Ms. Schlutter. Accordingly, on or about December 22, 1999, Ms. Eisen sent Ms. Schlutter the following letter:
Further to our correspondence in October and our brief telephone conversation on
November 5, 1999, can you please let us know whether the Durantes are continuing with the program. We have children to refer and work to do on the Durantes' file if they still wish to adopt.
Ms. Eisen never received a response to this letter.
It has not been shown that Petitioner's adoption fees have, at any time, been based on other than the reasonable costs of necessary services for Petitioner's total adoption program.
L. K. gave birth to a baby girl on February 3, 1998. Pursuant to L. K.'s consent, her daughter was surrendered to Petitioner and adopted by one of Petitioner's clients, C. and F. F.
On September 20, 1997, Ms. Eisen presented and explained to L. K. the following Acknowledgement of Non- Enforceability of Agreements Between Birth and Adoptive Parents, which L. K. signed that same day:
I understand and acknowledge that neither Adoption Advisory Associates nor the courts can enforce any promises, either written or oral between the adoptive couple and myself regarding matters to occur after I surrender my child for adoption.
One such promise that C. and F. F. had made to L. K. was that, following the finalization of the adoption, they would send L. K. photographs of her daughter and written updates about the progress of the child every year "around" the child's birthday.
The adoption was finalized in October of 1998. As of the date of L. K.'s testimony during the final hearing in this case (February 22, 2000), L. K. had not received from
C. and F. F. the promised photographs and progress report for the year ending February 3, 2000.
CONCLUSIONS OF LAW
Petitioner is seeking, pursuant to Section 409.175, Florida Statutes, the renewal of its full-year regular child placing license (which had an effective date of April 30, 1998).
Section 409.175, Florida Statutes, provides, in pertinent part, as follows:
(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. . . .
(b) Nothing in this section gives any governmental agency jurisdiction or authority to regulate, control, or supervise the form, manner, or content of any religious curriculum or teachings of a family foster home or of a child-caring or child-placing agency, provided the health, safety, or well- being of the child is not adversely affected.
(2) As used in this section, the term:
(a) "Agency" means a residential child- caring agency or a child-placing
agency. . . .
"Child" means any unmarried person under the age of 18 years.
"Child-placing agency" means any person, corporation, or agency, public or private, other than the parent or legal guardian of the child or an intermediary acting pursuant to chapter 63, that receives a child for placement and places or arranges for the placement of a child in a family foster home, residential child-caring agency, or adoptive home.
"Family foster home" means a private residence in which children who are unattended by a parent or legal guardian are provided 24-hour care. Such homes include emergency shelter family homes, family foster group homes, and specialized foster homes for children with special needs. 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.
"License" means "license" as defined in
s. 120.52(9). A license under this section is issued to a family foster home or other facility and is not a professional license of any individual. Receipt of a license under this section shall not create a property right in the recipient. A license under this act is a public trust and a privilege, and is not an entitlement. This privilege must guide the finder of fact or trier of law at any administrative proceeding or court action initiated by the department.
"Operator" means any onsite person ultimately responsible for the overall operation of a child-placing agency, family foster home, or residential child-caring agency, whether or not she or he is the owner or administrator of such an agency or home.
"Owner" means the person who is licensed to operate the child-placing agency, family foster home, or residential child-caring agency.
"Personnel" means all owners, operators, employees, and volunteers working in a child- placing agency, family foster home, or residential child-caring agency who may be employed by or do volunteer work for a person, corporation, or agency which holds a license as a child-placing agency or a residential child-caring agency, but the term does not include those who do not work on the premises where child care is furnished and either have no direct contact with a child or have no contact with a child outside of the presence of the child's parent or guardian. .
. .
(k) "Screening" means the act of assessing the background of personnel and includes, but is not limited to, employment history checks as provided in chapter 435, using the level 2 standards for screening set forth in that chapter. . . .
(3)(a) A person, family foster home, or residential child-caring agency shall not receive a child for continuing full-time care or custody unless such person, home, or agency has first procured a license from the department to provide such care. This requirement does not apply to a person who is a relative of the child by blood, marriage, or adoption or to a legal guardian, a person who has received the child from the department, a licensed child-placing agency, or an intermediary for the purposes of adoption pursuant to chapter 63.
(b) A person or agency, other than a parent or legal guardian of the child or an intermediary as defined in s. 63.032, shall not place or arrange for the placement of a child in a family foster home, residential child-caring agency, or adoptive home unless such person or agency has first procured a license from the department to do so. . . .
(d) This license requirement does not apply to boarding schools, recreation and summer camps, nursing homes, hospitals, or to persons who care for children of friends or neighbors in their homes for periods not to exceed 90 days or to persons who have received a child for adoption from a licensed child-placing agency. . . .
(4)(a) The department shall adopt and amend licensing rules for family foster homes, residential child-caring agencies, and child- placing agencies. . . . The requirements for licensure and operation of family foster homes, residential child-caring agencies, and child-placing agencies shall include:
The operation, conduct, and maintenance of these homes and agencies and the responsibility which they assume for children served and the evidence of need for that service.
The provision of food, clothing, educational opportunities, services, equipment, and individual supplies to assure
the healthy physical, emotional, and mental development of the children served.
The appropriateness, safety, cleanliness, and general adequacy of the premises, including fire prevention and health standards, to provide for the physical comfort, care, and well-being of the children served.
The ratio of staff to children required to provide adequate care and supervision of the children served and, in the case of foster homes, the maximum number of children in the home.
The good moral character based upon screening, education, training, and experience requirements for personnel.
The department may grant exemptions from disqualification from working with children or the developmentally disabled as provided in s. 435.07.
The provision of preservice and inservice training for all foster parents and agency staff.
Satisfactory evidence of financial ability to provide care for the children in compliance with licensing requirements.
The maintenance by the agency of records pertaining to admission, progress, health, and discharge of children served, including written case plans and reports to the department.
The provision for parental involvement to encourage preservation and strengthening of a child's relationship with the family.
The transportation safety of children served.
The provisions for safeguarding the cultural, religious, and ethnic values of a child.
Provisions to safeguard the legal rights of children served.
(b) In promulgating licensing rules pursuant to this section, the department may make distinctions among types of care; numbers of children served; and the physical, mental, emotional, and educational needs of the children to be served by a home or agency
. . . .
(5)(a) An application for a license shall be made on forms provided, and in the manner prescribed, by the department. The department 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 licensing 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 department shall issue the license.
A licensed family foster home, child- placing agency, or residential child-caring agency which applies for renewal of its license shall submit to the department a list of personnel who have worked on a continuous basis at the applicant family foster home or agency since submitting fingerprints to the department, identifying those for whom a written assurance of compliance was provided by the department and identifying those personnel who have recently begun working at the family foster home or agency and are awaiting the results of the required fingerprint check, along with the date of the submission of those fingerprints for
processing. The department shall by rule determine the frequency of requests to the Department of Law Enforcement to run state criminal records checks for such personnel except for those personnel awaiting the results of initial fingerprint checks for employment at the applicant family foster home or agency.
1. The department may pursue other remedies provided in this section in addition to denial or revocation of a license for failure to comply with the screening requirements. The disciplinary actions determination to be made by the department and the procedure for hearing for applicants and licensees shall be in accordance with chapter 120.
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.
Procedures established for hearing under chapter 120 shall be available to the applicant, licensee, summer day camp, or summer 24-hour camp, and affected personnel, in order to present evidence relating either to the accuracy of the basis for exclusion or to the denial of an exemption from disqualification.
Refusal on the part of an applicant to dismiss personnel who have been found not to be in compliance with the requirements for good moral character of personnel shall result in automatic denial or revocation of license in addition to any other remedies provided in this section which may be pursued by the department. . . .
In the licensing process, the licensing staff of the department shall provide consultation on request.
Upon determination that the applicant meets the state minimum licensing requirements, the department shall issue a license without charge to a specific person or agency at a specific location. A license may be issued if all the screening materials have been timely submitted; however, a license may not be issued or renewed if any person at the home or agency has failed the required screening. The license is nontransferable. A copy of the license shall be displayed in a conspicuous place. The license is valid for 1 year from the date of issuance, unless the license is suspended or revoked by the department or is voluntarily surrendered by the licensee. The license is the property of the department.
A license issued for the operation of a family foster home or agency, unless sooner suspended, revoked, or voluntarily returned, will expire automatically 1 year from the date of issuance. Ninety days prior to the expiration date, an application for renewal shall be submitted to the department by a licensee who wishes to have the license renewed. A license shall be renewed upon the filing of an application on forms furnished by the department if the applicant has first met the requirements established under this section and the rules promulgated hereunder
. . . .
(6)(a) The department may issue a provisional license to an applicant who is unable to conform 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 department of an acceptable written plan to overcome 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 progress has been made toward compliance with the requirements.
(7)(a) Authorized licensing staff of the department who are qualified by training may make scheduled or unannounced inspections of a licensed home or agency at any reasonable time to investigate and evaluate the compliance of the home or agency with the licensing requirements. All licensed homes and agencies shall be inspected at least annually.
(b) The department shall investigate complaints to determine whether a home or agency is meeting the licensure requirements. The department shall advise the home or agency of the complaint and shall provide a written report of the results of the investigation to the licensee.
(8)(a) The department may deny, suspend, or revoke a license.
(b) Any of the following actions by a home or agency or its personnel is a ground for denial, suspension, or revocation of a license:
An intentional or negligent act materially affecting the health or safety of children in the home or agency.
A violation of the provisions of this section or of licensing rules promulgated pursuant to this section.
Noncompliance with the requirements for good moral character as specified in paragraph (4)(a).
Failure to dismiss personnel found in noncompliance with requirements for good moral character.
(9)(a) The department may institute injunctive proceedings in a court of competent jurisdiction to:
Enforce the provisions of this section or any license requirement, rule, or order issued or entered into pursuant thereto; or
Terminate the operation of an agency in which any of the following conditions exist:
The licensee has failed to take preventive or corrective measures in accordance with any order of the department to maintain conformity with licensing requirements.
There is a violation of any of the provisions of this section, or of any licensing requirement promulgated pursuant to this section, which violation threatens harm to any child or which constitutes an emergency requiring immediate action. . . .
(10)(a) The department is authorized to seek compliance with the licensing requirements of this section to the fullest extent possible by reliance on administrative sanctions and civil actions.
(11)(a) It is unlawful for any person or agency to:
Provide continuing full-time care for or to receive or place a child apart from her or his parents in a residential group care facility, family foster home, or adoptive home without a valid license issued by the department if such license is required by subsection (4); . . .
(b) It is unlawful for any person, agency, summer day camp, or summer 24-hour camp providing care for children to:
1. Willfully or intentionally fail to comply with the requirements for the screening of personnel or the dismissal of personnel found not to be in compliance with the requirements for good moral character as specified in paragraph (4)(a). . . .
(12) If the department finds that any violation of this section or the rules promulgated pursuant to this section places the children served by the person or agency in immediate danger, the department may take the resident children into custody and place them in the care of another family foster home or residential child-caring agency.
(13)(a) In order to provide improved services to children, the department shall provide or cause to be provided preservice training for prospective foster parents and emergency shelter parents and inservice training for foster parents and emergency shelter parents who are licensed and supervised by the department.
As a condition of licensure, foster parents and emergency shelter parents shall successfully complete a minimum of 21 hours of preservice training. . . .
Prior to licensure renewal, each foster parent and emergency shelter parent shall successfully complete 8 hours of inservice training. . . .
It is apparent from a reading of Section 409.175, Florida Statutes, that it is a child protection, not a consumer protection, statute, and that it does not authorize the Department to hear and resolve contractual disputes between child-placing agencies and their clients or to suspend, revoke, or refuse to renew the licenses of child-placing agencies it
determines, based upon its interpretation of the agencies' contracts, have acted in derogation of their contractual obligations. 12/ See Grippe v. Department of Business and Professional Regulation, Division of Florida Land Sales, Condominiums, and Mobile Homes, 729 So. 2d 459 (Fla. 4th DCA 1999)("The Division correctly found it lacked authority to interpret ambiguous provisions of a condominium contract."); Lee v. Division of Land Sales and Condominiums, 474 So. 2d 282, 284 (Fla. 5th DCA 1985)("An agency has only such power as expressly or by necessary implication is granted by legislative enactment. An agency may not increase its own jurisdiction and, as a creature of statute, has no common law jurisdiction or inherent power such as might reside in, for example, a court of general jurisdiction. When acting outside the scope of its delegated authority, an agency acts illegally and is subject to the jurisdiction of the courts when necessary to prevent encroachment on the rights of individuals."); Point Management, Inc. v.
Department of Business Regulation, Division of Florida Land Sales and Condominiums, 449 So. 2d 306, 307 (Fla. 4th DCA 1984)("The rationale of the Peck case is that courts rather than administrative bodies construe contracts."); Fleishman v.
Department of Professional Regulation, 441 So. 1121, 1122 (Fla. 3d DCA 1983)("It is well-settled, on the one hand, that, absent clear legislative authorization to the contrary, violations of mere contractual rights are concerns only of the courts, and may
not be enforced by disciplinary action undertaken by a regulatory agency like the real estate commission."); Peck Plaza Condominium v. Division of Florida Land Sales and Condominiums, Department of Business Regulation, 371 So. 2d 152, 153-54 (Fla. 1st DCA 1979") ("We find no provision in the condominium law that would grant to the respondent Division the authority to interpret and then to enforce its interpretation of the provisions of a condominium contract that is admittedly ambiguous. Jurisdiction to interpret such contracts is, under our system, vested solely in the judiciary. It is to the judiciary that the citizenry turns when their rights under a document are unclear and they desire an interpretation thereof. . . . There being no statutory grant of power to the Division to interpret and enforce the conflicting and ambiguous provisions of a declaration relating to a condominium, it follows, as a matter of logic, that the Division may not supplement the absence of legislative authority by a case by case attempt at rule-making control in this area. Any such effort would clash with the Supreme Court's decision in Lewis v. Bank of Pasco County, 346 So. 2d 53 (Fla. 1976). There is no statute containing standards that would guide on the one hand and restrain on the other the agency in the creation and execution of any such rule or power. Such authority may not be brought into existence by agency ambition, insinuation or bureaucratic osmosis."); Department of Professional Regulation v. Boyd, 1991 WL 833017 (Fla. DOAH 1991)(Recommended Order)("[T]he evidence in
relation to scaling and curettage, delivery of dentures, behavioral management fees and multiple billing, clearly, boils down to the interpretation of a contract between Dr. Boyd and Medicaid . . . . None of these areas may be regulated by the Board absent specific statutory authority and none may subject a licensee to discipline for allegedly breaching a Medicaid contract. . . . Put simply, failure to perform according to a contract of service is not tantamount to fraud regardless of who the parties to the contract are . . . . Similarly, the Board cannot blindly adopt such standards of practice which have their sole legal basis in a private contractual arrangement since to permit such an action would be tantamount to permitting the Board to do indirectly what it cannot do directly . . . ."); State of Florida, Department of Regulation, Construction Industry Licensing Board v. Powell, 1983 WL 210107 (Fla. DOAH 1983)(Recommended Order)("The evidence in this case demonstrates that respondent breached his warranty to deliver unencumbered title to lot 5 to the D'Antonis and to defend their title against the subsequent foreclosure claim. Respondent may be civilly liable to the D'Antonis for his breach of warranty. But
the Construction Industry Licensing Board has no power to enforce contracts or provide remedies for their breach.").
While it is not empowered to interject itself in disagreements between child-placing agencies and their clients, the Department has been vested with the authority, pursuant to
Section 409.175, Florida Statutes, to adopt "licensing rules" in furtherance of the "purpose of this section." The "licensing rules" that the Department has adopted are found in Rule Chapter 65C-15, Florida Administrative Code, which provides, in pertinent part, as follows:
65C-15.002 Licensed Child-Placing Agencies. . . .
(7) Agencies shall keep, at all times, a sufficient number of licensed foster homes, other than the prospective adoptive homes, which shall be used when the agency has received custody of a child and the child has not been placed in an adoptive
placement. . . .
65C-15.004 On-Site Visits and Complaint Investigation. . . .
The department shall investigate complaints to determine if the agency is meeting the licensure requirements.
The department shall advise the owner and operator with authority over the licensed agency that there is a licensing complaint when initiating an investigation and shall advise the agency of the results of the investigation when concluded.
Whenever the department receives a report questioning the certification status or compliance of a child-placing agency with requirements of the state adoption law or alleging violations of this chapter by the agency, the department shall investigate the allegation within 20 working days to determine whether the complaint is substantiated.
The department shall notify the complainant and the agency in writing of the results of the complaint investigation within
15 working days after the report of the
department's investigation has been finalized. . . .
65C-15.010 Finances.
Funding: Agencies beginning operation shall have the capital necessary for a six- month period of operation.
Budget: The agency shall prepare a written budget annually.
Audit: The agency shall have its financial records audited annually. A report of this audit shall be available to the department at the licensed location during normal business hours.
Fees and Costs.
If fees for adoption and foster care services are charged, the agency shall have a fee schedule disclosing all fees for services in a written policy which describes the conditions under which fees are charged, waived, or refunds made, if applicable. A copy of the fee schedule shall be filed with the department. This schedule shall clearly list the specific services covered by this fee. This fee schedule shall be given to all persons making application for adoption services. A fee agreement and any modifications to it shall be executed with each applicant, which lists the fees charged and the services to be provided, including provisions for payment. Any reduction or increase in the agency's fee schedule shall be filed with the department 15 days after going into effect.
Adoption fees shall be established based on the reasonable costs of the following services for the total adoption program:
Medical services for the child and the birth mother;
Legal services;
Counseling services;
Homestudy services;
Living expense for the birth mother;
Foster care services;
Pre and post placement social services;
Contracted services, if applicable, and
Other necessary services;
Agency facilities and administrative costs. . . .
65C-15.016 Staff Functions and Qualifications. . . .
(2) The agency shall have a personnel file for each employee, available for review by the department which shall include, but is not limited to the following: . . .
(b) Verification that the screening requirements of s. 409.175, F.S., and F.A.C. 10-20 have been completed and met; . . .
(f) Training record and conferences attended. . . .
65C-15.018 Staff Development. . . .
(2) The agency shall ensure that the supervisory and social work staff receive at least 15 hours of in-service training during each full year of employment. Activities related to supervision of the staff member's routine tasks shall not be considered training activities for the purpose of this requirement. . . .
65C-15.025 Monitoring and Annual Licensing Study.
A staff member of the agency shall conduct an annual relicensing evaluation of the agency's licensed foster homes in order to make a timely recommendation to the department in regard to renewal of the family's license.
65C-15.027 The Agency's Responsibilities to Foster Parents.
(1) The agency shall provide or identify training opportunities for foster parents to increase their skills and ability to parent children who are not their own. The agency shall ensure that each newly licensed foster
parent receive not less than 12 hours of training per year during the first two years of licensure. Training opportunities should include training on agency policy, rules and laws, training which provides foster parents with an understanding of foster care, training which provides foster parents with an understanding of the needs of children and their families, training on the responsibilities of the foster parent to the agency and the child. . . .
65C-15.028 Adoptive Home Study.
The agency shall make an evaluation of the adoptive family before placement of a child, which shall include at least one home visit.
The evaluation study shall be summarized in a written report.
The report shall be maintained by the agency as a permanent record, and shall include the following: . . .
(q) Evidence of screening of the applicants by the Florida Protective Services System Abuse Registry and law enforcement clearance;
. . .
65C-15.029 Services to Adoptive Parents. . . .
The agency social worker shall visit with the adoptive family at least monthly, after the placement of a child, until the adoption is finalized.
Observations made during the visits shall be documented in a case file and shall form a basis for case planning with the family and the child. . . .
The agency shall provide service to the adoptive family and child until the adoptive placement is finalized or terminated. . . .
65C-15.032 Family Case Record.
(1) The agency shall have on file a record of the family of every child whom the agency places into care . . . .
65C-15.034 Adoptive Home Records.
The agency shall keep records for each adoptive family which shall
contain: . . .
(5) A summary of family contacts following approval for adoption until the child is placed; . . .
(8) Summary containing the placement decision, pre-placement and post-placement contacts with the family and the adoptive child, including services provided to stabilize the placement and decisions regarding finalization of the adoption. . . .
65C-15.036 Intercountry Adoption Services
. . . .
(3) The agency which engages in intercountry adoptions shall comply with the requirements of the United States Immigration and Nationality Act as specified in sections 1431 through 1434, 8 USC.
The Immigration and Nationality Act, as interpreted by the INS in its regulations, specifically 8 CFR Section 203.2(e)(2)(iii)(B), requires that a child-placing agency, in preparing a home study report, do the following if it becomes aware that an adult member of the household of prospective adoptive parents interested in adopting an orphan from another country has a history of abuse and/or violence:
If the petitioner and/or spouse, if married, disclose(s) any history of abuse and/or violence as set forth in paragraph (e)(2)(iii)(A) of this section, or if, in the absence of such disclosure, the home study preparer becomes aware of any of the
foregoing, the home study report must contain an evaluation of the suitability of the home for adoptive placement of an orphan in light of this history. This evaluation must include information concerning all arrests or convictions or history of substance abuse, sexual or child abuse, and/or domestic violence and the date of each occurrence. A certified copy of the documentation showing the final disposition of each incident, which resulted in arrest, indictment, conviction, and/or any other judicial or administrative action, must accompany the home study.
Additionally, the prospective adoptive parent
must submit a signed statement giving details including mitigating circumstances, if any, about each incident. The home study preparer must apply the requirements of this paragraph to each adult member of the prospective adoptive parents' household.
An applicant for licensure renewal that does not currently meet "state minimum licensing standards" (including those standards set forth above that are prescribed by the Department's "licensing rules") must either be denied licensure or, if certain conditions are met, granted a provisional license. The Department may not issue a full-year regular license to such an applicant.
An applicant for licensure renewal who has, sometime after being granted the license it is seeking to renew, 13/ violated the provisions of Section 409.175, Florida Statutes, or the Department's "licensing rules" may be denied licensure based upon such violation; however, under appropriate circumstances (where the violation was not serious and all "state minimum licensing standards," including the previously violated standard, are currently being met), such an applicant may be granted
another full-year regular license, notwithstanding the prior violation.
Where the Department, pursuant to Section 409.175(8), Florida Statutes, preliminarily determines to deny licensure based upon a prior statutory or rule violation, and, at the applicant's request, an evidentiary hearing is held in accordance with Section 120.57(1), Florida Statutes, the Department bears the burden of proving (at the requested hearing) by a preponderance of the evidence that the applicant committed the alleged violation. See Department of Banking and Finance v. Osborne Stern and Company, 670 So. 2d 932, 934 (Fla. 1996); Department of Health and Rehabilitative Services v. Career Service Commission, 289 So. 2d 412, 415 (Fla. 4th DCA 1974)("'As a general rule the comparative degree of proof by which a case must be established is the same before an administrative tribunal as in a judicial proceeding--that is, A preponderance of the evidence. It is not satisfied by proof creating an equipoise, but it does not require proof beyond a reasonable doubt.").
In the instant case, the Department preliminarily decided to deny Petitioner's application for licensure renewal for the reasons set forth in the Department's July 15, 1999, Notice of Intent. Petitioner has challenged the Department's decision on the merits. In addition, it contends that, regardless of the truth of the allegations contained in the Notice of Intent, it is entitled to a one-year regular child-
placing license "effective immediately" because the Department failed to approve or deny its application for such a license within the time frame prescribed by Section 120.60(1), Florida Statutes, which provides as follows:
Upon receipt of an application for a license, an agency shall examine the application and, within 30 days after such receipt, notify the applicant of any apparent errors or omissions and request any additional information the agency is permitted by law to require. An agency shall not deny a license for failure to correct an error or omission or to supply additional information unless the agency timely notified the applicant within this 30- day period. An application shall be considered complete upon receipt of all requested information and correction of any error or omission for which the applicant was timely notified or when the time for such notification has expired. Every application for a license shall be approved or denied within 90 days after receipt of a completed application unless a shorter period of time for agency action is provided by law. The
90-day time period shall be tolled by the
initiation of a proceeding under ss. 120.569 and 120.57. An application for a license must be approved or denied within the 90-day or shorter time period, within 15 days after the conclusion of a public hearing held on the application, or within 45 days after a recommended order is submitted to the agency and the parties, whichever is later. The agency must approve any application for a license or for an examination required for licensure if the agency has not approved or denied the application within the time periods prescribed by this subsection.
According to Petitioner, pursuant to Section 120.60(1), Florida Statutes, the Department was required to deny or approve its application for licensure within 90 days of the date of the submittal of its application, "that is, by June 22, 1999," and,
in light of the Department's failure to have done so, the "Department had, and continues to have, a obligation to perform the ministerial act of issuing [Petitioner] an unconditional license, valid for one year."
Petitioner has misread the provisions of Section 120.60(1), Florida Statutes. The 90-day period within which an application for licensure must be approved or denied begins to run, not when the application is initially received by the agency, but when it is deemed "complete." An application is considered "complete," under the statute, "upon receipt [by the agency] of all requested information and correction of any error or omission for which the applicant was timely notified or when the time for such notification [30 days from the date the application was initially received by the agency] has expired."
The Department did not "notify [Petitioner] of any apparent errors or omissions" or "request any additional information" from Petitioner within 30 days of March 23, 1999, the date it received Petitioner's application. Accordingly, Petitioner's application became "complete," within the meaning of Section 120.60(1), Florida Statutes, on April 22, 1999, when this 30-day notification period expired, and the Department had 90 days from this date (that is, by July 21, 1999) within which to approve or deny the application. 14/ The Department acted in a timely manner. It issued its Notice of Intent preliminarily denying Petitioner's application for renewal of its regular
child-placing license on July 15, 1999, less than 90 days from the date, April 22, 1999, the application became "complete."
Therefore, Petitioner's argument that it is entitled to a regular one-year license "effective immediately" pursuant to the "deemer" provision of Section 120.60(1), Florida Statues, must be rejected.
It is thus necessary to consider whether the record evidence supports the charges made in the Notice of Intent and the Department's decision to deny Petitioner's application to renew its license.
The allegations of violations of the following "licensing rules" in Rule Chapter 65C-15, Florida Administrative Code, lack adequate record support: Rule 65C-15.002(7)(While it is true that the Petows' foster home license expired on April 30, 1999, at present, and at all times subsequent to April 30, 1999, Petitioner has had an agreement with JAFCO, a Florida-licensed foster home provider, obligating JAFCO to provide Petitioner with foster care services for any children who have been placed in Petitioner's custody and require such services. A child-placing agency that has such an agreement with a licensed foster home provider is in compliance with Rule 65C-15.002(7).); Rule 65C- 15.010(4)(b)(It has not been shown that Petitioner's adoption fees have, at any time, been based on other than the reasonable costs of necessary services for Petitioner's total adoption program. 15/ ); Rule 65C-15.025(A child-placing agency is not
required to conduct "an annual relicensing evaluation of the agency's licensed foster homes" if it intends to use the services of another licensed foster care provider in the upcoming year.); Rule 65C-15.027(1)(The Petows were licensed for less than two years. Accordingly, Petitioner's failure to have provided them with training did not amount to a violation of Rule 65C- 15.027(1).); Rule 65C-15.028(1)(An evaluation study, which included evidence that the Jameses met screening requirements, was completed before the child they adopted through Petitioner left Illinois and entered the James home in Florida. Although Ms. James took custody of the child prior to the completion of the evaluation study, she did so in Illinois, in accordance with the wishes of the child's guardian, and, in any event, Ms. James was a Florida-licensed attorney and therefore also an "intermediary," as defined in Section 63.032(8), Florida Statutes, who was authorized, by Section 63.052(3), Florida Statutes, to supervise minors who had been "surrendered . . . for subsequent adoption" from the time of surrender "until a suitable prospective adoptive home [was] available."); Rule 65C-15.032(1); Rule 65C-15.034(5) and (8); and 65C-15.036(3)(The record evidence fails to establish that Petitioner acted in derogation of federal immigration law, as alleged in the Notice of Intent.)
With respect to the "complaints regarding the business practices of [Petitioner]" summarized in the Notice of Intent, there has been no showing made that, in its dealings with any of
the complainants, Petitioner engaged in conduct (in violation of any provision of Section 409.175, Florida Statutes, or Rule Chapter 65C-15, Florida Administrative Code) for which its application for licensure renewal may be denied pursuant to Section 409.175, Florida Statutes. 16/
There is sufficient record evidence, however, to prove that Petitioner, subsequent to the April 30, 1998, effective date of its full-year regular license, violated the following "licensing rules," as alleged in the Notice of Intent:
Rule 65C-15.010(3)(The report of the last audit of Petitioner's financial records was made available to the Department on March 23, 1999. This audit covered Petitioner's May 1, 1997-April 30, 1998, fiscal year. An audit covering the May 1, 1998-April 30, 1999, fiscal year has yet to be conducted. 17/ );
Rule 65C-15.016(2)(b)(As a result of a misunderstanding (fostered by the Department) concerning the need for Ms. Eisen and Ms. Oken to be re-screened (in light of the "clearance" they had received during their association with Adoption Connection), both
Ms. Eisen and Ms. Oken were employed by Petitioner for substantial periods of time (including the entire year that Petitioner's full-year regular license was in effect) notwithstanding that they did not have the required "clearance" to do so. Ms. Oken, however, is no longer employed by Petitioner, and Ms. Eisen, who continues to serve as Petitioner's executive director, has recently been re-screened. Such re-
screening has revealed that she has no criminal record. 18/ ); Rule 65C-15.018(2)(As of June 30, 1999, the personnel files of Ms. Oken and Ms. Petow (neither of whom is still employed by Petitioner) lacked documentation reflecting that they had received 15 hours of training during their last full year of employment with Petitioner, as required by Rule 65C- 15.018(2)(read in pari materia with Rule 65C-15.016(2)(f); however, to the extent that the Notice of Intent alleges that Ms. Eisen's personnel file, as of that date, also lacked such documentation, the allegation is contrary to the greater weight of the evidence.); and Rule 65C-15.029(2) and (3)(Petitioner, in good faith, believed telephone contact with the adoptive parents could be counted as a "visit" for purposes of meeting the monthly "visit" requirement of Rule 65C-15.029, and it acted accordingly. The Department, however, interprets the rule differently. It (not unreasonably) construes the rule to mandate face-to-face monthly contact with the adoptive parents. See Citizens of the State of Florida v. Wilson, 588 So. 2d 1267, 1271 (Fla. 1990)("An agency's interpretation of its own rules is entitled to great deference."); Golfcrest Nursing Home v. Agency for Health Care Administration, 662 So. 2d 1330, 1333 (Fla. 1st DCA 1995)("An agency's interpretation of its own rules and regulations is entitled to great weight, and shall not be overturned unless the interpretation is clearly erroneous. . . . This is true even if that interpretation is not the sole possible interpretation, the
most logical interpretation, or even the most desirable interpretation.")).
The foregoing rule violations, considered collectively and in light of all surrounding circumstances, are not sufficiently serious to warrant the outright denial of Petitioner's application for licensure renewal.
While Petitioner, at the present time, is not qualified to receive another full-year regular license since it is not currently in full compliance with all "state minimum licensing requirements," Petitioner does appear to be qualified, pursuant to Section 409.175(6), Florida Statutes, to receive a provisional license effective for a period of time sufficient to give Petitioner a reasonable opportunity to comply with the requirements of Rule 65C-15.010(3), Florida Administrative Code (that is, to have its financial records for the fiscal years ending April 30, 1999, and April 30, 2000, audited and to make the reports of these audits available to the Department), and to submit proof to the Department that Ms. Eisen has met all screening requirements or that her employment with Petitioner has been terminated.
RECOMMENDATION
Based on the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED that the Department issue a final order in which it denies Petitioner's request that Petitioner be granted another
full-year regular license and instead grants Petitioner, pursuant Section 409.175(6), Florida Statutes, a provisional license as described above.
DONE AND ENTERED this 13th day of June, 2000, in Tallahassee, Leon County, Florida.
STUART M. LERNER
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675 SUNCOM 278-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 13th day of June, 2000.
ENDNOTES
1/ Pursuant to Rule 65C-15.004(4), Florida Administrative Code, the Department has 20 days, not three months, to investigate complaints against child-placing agencies. Moreover, in accordance with Section 409.175, Florida Statutes, a provisional license may be issued only after a "deficiency" has been found and identified by the Department. A mere allegation, not yet fully investigated by the Department, that a child-placing agency is guilty of violating "state minimum licensing requirements" is insufficient, under Section 409.175, Florida Statutes, to support the issuance of a provisional license.
2/ These provisions are now found in Section 65C-15.010(4)(b), Florida Administrative Code.
3/ The Department had lost an application that Petitioner had submitted the previous year seeking a foster home license for the Petows. When Petitioner discovered that the application had been lost and that, contrary to what it had believed to be the situation, the Petows were not licensed to provide foster care services, Petitioner took the necessary steps to rectify the matter.
4/ JAFCO is also a Florida-licensed child-placing agency.
5/ JAFCO and Petitioner at first had an oral agreement regarding the matter. Approximately two years ago this oral agreement was reduced to writing. This written agreement is still in effect.
6/ At hearing, the Department stipulated that clerical employees of child-placing agencies, like Petitioner, do not need to be screened.
7/ At hearing, Ms. Eisen stated that she was "willing to accept," in hindsight, that, in fact, such a transfer could not be lawfully effectuated.
8/ The "NACAC" is the North American Council on Adoptable Children.
9/ This was a four-day conference (according to Ms. Eisen's unrefuted testimony at hearing). The certificate that Petitioner received from the NACAC certifying that she attended the conference (which was the NACAC's 24th Annual Conference on Adoptable Children) reveals that Petitioner was credited with 19 "contact hours" for her attendance at the conference. (This certificate was not in Ms. Eisen's personnel file at the time Ms. Willson conducted her review.)
10/ This was a three-day conference (according to Ms. Eisen's unrefuted testimony at hearing).
11/ That portion of Section 409.175, Florida Statutes, which mandates that foster parents be provided with training (subsection (13)(a)) imposes the obligation to provide such training on the Department.
12/ That is not to say, of course, that clients of child-placing agencies that breach their contractual obligations are without recourse. They can, if they act in a timely manner, seek a judicial remedy. Furthermore, if a client has been the victim of "[u]nfair methods of competition, unconscionable acts or practices, [or] unfair or deceptive acts or practices" in their dealings with a child-placing agency (as opposed to a mere breach of contract by the child-placing agency), the client may initiate an action against the agency pursuant to Section 501.211, Florida Statutes.
13/ Cf. Taylor v. Department of Professional Regulation, Board of Medical Examiners, 534 So. 2d 782 (Fla. 1st DCA 1988)("We must conclude, in the absence of a clear legislative statement to the contrary, that the statutory purpose is deemed adequately served by those powers explicitly conferred upon the Board. We discern no clear statement of legislative intent to provide for discipline of a physician for prelicensure misconduct where he
has not falsified his application and is adjudged presently fit to practice. We therefore hold that the Board was without jurisdiction to discipline appellant.").
14/ An agency, pursuant to Section 120.60, Florida Statutes, must merely approve or deny an application for licensure within
90 days from the date the application is considered "complete," not reduce its decision to writing or provide the applicant written notification of its action. See Sumner v. Department of Professional Regulation, Board of Psychological Examiners, 555 So. 2d 919(Fla. 1st DCA 1990).
15/ Before issuing Petitioner its full-year regular license in 1998, the Department approved Petitioner's fee schedule for domestic adoption services. Accordingly, even if the record evidence established that these fees were not based on the reasonable costs of Petitioner's total adoption program, the Department would nonetheless be estopped (absent a showing that these costs had decreased since the Department's approval of the domestic adoption fee schedule) from denying Petitioner relicensure on the ground that Petitioner's subsequent use of this fee schedule constituted a violation of Rule 65C- 15.010(4)(b). See Council Brothers, Inc. v. City of Tallahassee, 634 So. 2d 264 (Fla. 1st DCA 1994); Dolphin Outdoor Advertising v. Department of Transportation, 582 So. 2d 709 (Fla. 1st DCA 1991); Kuge v. State, Department of Administration, 449 So. 2d 389 (Fla. 3d DCA 1984).
16/ Indeed, it does not appear from the record evidence that any of the complainants, with the possible exception of Ms. Marin, would be able to successfully prosecute a breach of contract action against Petitioner, nor does the record evidence establish that any of the complainants, including Ms. Marin, were the victims of fraud or "[u]nfair methods of competition, unconscionable acts or practices, [or] unfair or deceptive acts or practices" in their dealings with Petitioner. Cf. Capital Bank v. MVB, Inc., 644 So. 2d 515 (Fla. 3d DCA 1994)("Finally, Battaglia alleges that the bank reneged on promises to fund future operations and to assign a mortgage. Yet, failure to perform a promise does not constitute fraud, unless the bank intended not to perform the contract at the time it was entered.
. . . The record is devoid of evidence that Assalone had a
present intent at the time he made these promises not to keep them."); Stow v. National Merchandise, Inc., 610 So. 2d 1378 (Fla. 1st DCA 1992)("In any event, a mere failure to perform a promise will not predicate a claim of fraud."); Century Properties, Inc. v. Machtinger, 448 So. 2d 570 (Fla. 2d DCA 1984)("We agree with appellants' contentions that punitive damages cannot be recovered for a mere breach of contract; fraud cannot be predicated solely upon the failure to perform a
promise. . . . However, a promise may be a basis for fraud where there is evidence the promisor had a specific intent not to perform at the time the promise was made.").
17/ Petitioner, however, contrary to the allegation made in the Notice of Intent, did not violate Rule 65C-15.010(3) by failing to adopt the "proposals" that the auditor had made in his first audit report and that the Department's District Administrator and his staff had subsequently (in June of 1997) endorsed.
18/ The evidentiary record does not reveal whether the Florida Abuse Registry check Petitioner requested the Department to perform has been completed.
COPIES FURNISHED:
Cheryl R. Eisen, Esquire Executive Director
Adoption Advisory Associates, Inc. Suite 205
299 Camino Gardens Boulevard Boca Raton, Florida 33432
A. Thomas Connick, Esquire
411 East Hillsboro Boulevard Post Office Box 1186
Deerfield Beach, Florida 33441
Colleen Farnsworth, Esquire Department of Children and
Family Services
111 South Sapodilla Avenue Suite 201
West Palm Beach, Florida 33401
Virginia Daire, Agency Clerk Department of Children and
Family Services Building 2, Room 204B 1317 Winewood Boulevard
Tallahassee, Florida 32399-0700
Josie Tomayo, General Counsel Department of Children and
Family Services Building 2, Room 204
1317 Winewood Boulevard
Tallahassee, Florida 32399-0700
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions within 15 days from the date of this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.
| Issue Date | Proceedings |
|---|---|
| Oct. 06, 2000 | Final Order Granting Provisional Licensure filed. |
| Jun. 13, 2000 | Recommended Order sent out. CASE CLOSED. Hearing held February 21-24, 2000. |
| Jun. 07, 2000 | Order sent out. (petitioner`s motion to supplement the record is granted) |
| May 30, 2000 | Petitioner`s Second Motion to Supplement the Record (filed via facsimile). |
| May 26, 2000 | Order sent out. (agreed motion to supplement the record is granted) |
| May 24, 2000 | Agreed Motion to Supplement the Record w/Exhibits filed. |
| May 23, 2000 | Order sent out. (petitioner shall filed proposed recommended order by May 18, 2000) |
| May 19, 2000 | (Petitioner) Notice of Filing; Recommended Order (for SML signature) (filed via facsimile). |
| May 17, 2000 | (Petitioner) Adoption Advisory Associates` Motion for Extension of Time or, in the Alternative, to Accept Proposed Recommended Order as Timely Filed; (Proposed) Recommended Order (filed via facsimile). |
| May 10, 2000 | Order sent out. (petitioner`s unopposed second motion for extension of time to file proposed recommended orders is granted) |
| May 08, 2000 | (Petitioner) Second Motion for Extension of Time to File Proposed Recommended Orders (filed via facsimile). |
| May 05, 2000 | Order sent out. (petitioner`s unopposed motion for extension of time to file proposed recommended orders) |
| May 04, 2000 | (Petitioner) Exhibits filed. |
| May 03, 2000 | Respondent`s Proposed Recommended Order (For Judge Signature); Notice of Filing; Affidavit; Exhibits filed. |
| May 02, 2000 | (Petitioner) Motion for Extension of Time to File Proposed Recommended Orders (filed via facsimile). |
| Apr. 13, 2000 | (8 Volumes) Transcript filed. |
| Feb. 21, 2000 | CASE STATUS: Hearing Held. |
| Feb. 18, 2000 | (A. Thomas Connick) Notice of Appearance of Co-Counsel for Petitioner (filed via facsimile). |
| Feb. 18, 2000 | Respondent`s Pre-Hearing Statement (filed via facsimile). |
| Feb. 15, 2000 | Order sent out. (final hearing will commence at 9:00am instead of 1:00pm, on 2/21/00) |
| Feb. 15, 2000 | Adoption Advisory Associates` Witness List (filed via facsimile). |
| Feb. 15, 2000 | Corrected pages 7 and 9 replacement pages for Adoption Advisiory Associates First Motion in Limine; Exhibits (Motion in Limine) (filed via facsimile). |
| Feb. 14, 2000 | Adoption Advisory Associates` First Motion in Limine (filed via facsimile). |
| Feb. 09, 2000 | (C. Eisen) Notice of Intention to Seek Attorney Fees and Costs (filed via facsimile). |
| Feb. 08, 2000 | (Respondent) Motion for Telephonic Testimony (filed via facsimile). |
| Nov. 03, 1999 | Amended Order Granting Continuance and Re-scheduling Hearing (amended as to location of first day of hearing only) sent out. (hearing set for February 21 through 25, 2000; 9:00am; West Palm Beach) |
| Oct. 28, 1999 | Order Granting Continuance and Re-scheduling Hearing sent out. (hearing set for February 21 through 25, 2000; 1:00 p.m.; West Palm Beach, FL) |
| Oct. 25, 1999 | (Petitioner) Agreed Motion for Continuance filed. |
| Sep. 13, 1999 | Amended Notice of Hearing sent out. (hearing set for December 14 through 17, 1999; 9:15 a.m.; West Palm Beach, FL) |
| Sep. 09, 1999 | Notice of Hearing sent out. (hearing set for December 14 through 17, 1999; 9:15 a.m.; Fort Lauderdale, FL) |
| Sep. 09, 1999 | Order of Pre-hearing Instructions sent out. |
| Aug. 26, 1999 | Agreed Response to Initial Order (filed via facsimile). |
| Aug. 13, 1999 | Initial Order issued. |
| Aug. 11, 1999 | Notice; Request for Hearing (letter); Agency Action Letter filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Sep. 25, 2000 | Agency Final Order | |
| Jun. 13, 2000 | Recommended Order | Petitioner, a child-placing agency, is guilty of some, but not all, of alleged violations. The violations are not so serious as to warrant denial of licensure, and a provisional license should be granted.
 |
LARRY RICHARDS AND LINDA RICHARDS vs DEPARTMENT OF CHILDREN AND FAMILY SERVICES, 99-003438 (1999)
LUCILLE HILLS vs DEPARTMENT OF CHILDREN AND FAMILY SERVICES, 99-003438 (1999)
THOMAS AND TAMARA HARRINGTON vs DEPARTMENT OF CHILDREN AND FAMILY SERVICES, 99-003438 (1999)
ROSA WISE AND EDWIN WISE vs DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, 99-003438 (1999)
