STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CARLOS A. MARRIAGA AND )

EVANGELISTA MARRIAGA, )

)

Petitioners, )

)

vs. ) Case No. 00-1861

)

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on October 12, 2000, in Ocala, Florida, before the Division of Administrative Hearings, by its designated Administrative Law Judge, Diane Cleavinger.

APPEARANCES

For Petitioner: Carlos A. Marriaga, pro se

Evangelista Marriaga, pro se 4514 Southeast 10th Place Ocala, Florida 34471

For Respondent: Ralph J. McMurphy, Esquire

Department of Children and Family Services

1601 West Gulf Atlantic Highway Wildwood, Florida 34785

STATEMENT OF THE ISSUE

Whether Petitioners should be licensed as a family foster home.

PRELIMINARY STATEMENT

On August 25, 1999, Petitioners Carlos A. Marriaga and Evangelista Marriaga, filed an application for licensure as a foster home. Respondent Department of Children and Family Services (DCF) denied Petitioners' application based on interviews with some of the neighbors of the Marriagas.

Petitioners disputed the Department's denial and timely filed a request for an administrative hearing. The matter was then referred to the Division of Administrative Hearings.

At the hearing, Petitioners testified in their own behalf and called one witness to testify. Petitioners also offered one Exhibit into evidence. Respondent presented the testimony of two witnesses and offered one Exhibit into evidence. Bother parties submitted one Joint Exhibit into evidence.

After the hearing Petitioners and Respondent submitted Proposed Recommended Orders on October 26, 2000.

FINDINGS OF FACT

1. The Petitioners are an Hispanic couple in their late fifties. At the time of application, B.A. (13 years old), and his sister S.A. (15 years old), lived with the Marriagas. Both were being raised by the Petitioners. At the time of hearing

   B.A. was living with the Petitioners.

   
   

2. On August 25, 1999, Petitioners submitted their application/packet for licensure as a family foster home.

3. Other than those raised at this hearing, Petitioners meet all requirements for becoming a foster home. They have completed the MAPP qualifications. They also understand and are able to handle problems peculiar to caring for foster children. They understand the obligations and responsibilities of foster parents. Indeed, Ms. Marriaga is not employed and is able to devote her time and attention to any children in her home.

4. By statute, the Department is required to interview at least two neighbors of an applicant for foster care. In conducting the required interviews for the Marriaga application, a Department licensing counselor was informed that there were concerns among some of the neighbors interviewed about how the Marriagas cared for and/or supervised their 13-year-old grandson, B.A.

5. Neighbors reported to Mr. Lewis that B.A. appeared at times to be unsupervised and locked out of the Marriagas' home. Neighbors also indicated that B.A. complained of being hungry. Other neighbors reported that the Marriagas were good parents and would make good foster parents. None of the neighbors testified at the hearing. No reliable evidence was submitted on the basis of these neighbors' assertions.

6. Ms. Marriaga admitted that there were a few occasions when she would be out shopping for a short period when B.A. got home from school. These short periods were for no more than 5

   or 10 minutes and were not frequent. She also stated that there was one occasion where B.A. was left unsupervised after school because Ms. Marriaga had to take her adult daughter to the hospital for emergency treatment for gangrene. She said she returned from the hospital within 30 minutes after B.A. got home. None of these absences were unreasonable, given B.A.'s age and level of responsibility. Neither incident supports a finding that the Marriagas are not qualified.

7. B.A. did not have a key to the home to gain access on the occasions when Ms. Marriaga was not home when he got back from school. He could access the garage area and the backyard, but not the living areas of the home. The garage area was stocked with food and drinks. The fact B.A. does not have a key is not an unusual or unreasonable child-rearing practice. The lack of key does not support a finding that the Marriagas are not qualified especially since the Marriagas understand that foster child access requirements of the Department.

8. Because of the concerns raised by the neighbors' reports, Mr. Lewis interviewed B.A. and his sister, re-contacted the neighbors to whom he had talked previously and interviewed two more neighbors in late October 1999. Some neighbors still had concerns about B.A.'s supervision, others did not. None of the neighbors testified at the hearing nor were sufficient facts

   introduced to conclude that these neighbors had any substantive basis for their opinion.

9. The Licensing Evaluation submitted by John Lewis to the Family Services Counselor Supervisor recommended that the Marriaga's home be licensed for two children: Male or female, infant zero through eight years. This recommendation was submitted after Mr. Lewis went to the Petitioners' home to finalize the family profile report. At that time, Mr. Lewis the advised Petitioners that two of the four neighbors interviewed expressed reservations about the level of supervision a foster child would receive in their home. The Petitioners assured

   Mr. Lewis that their grandson B.A. is strictly supervised and well cared for. At hearing, B.A. concurred with his grandparents. Mr. Lewis did not ask the Petitioners for the name of an emergency back-up person or to provide him with an emergency care plan. The Petitioners have a strong family support group. At the hearing Ms. Marriaga stated that her plan was to either be present or a relative would provide the needed back-up supervision. The Marriagas believed handling such a scenario would not be difficult because Ms. Marriaga was always available to be home. They stated at the hearing that in the event of an emergency the great-grandfather would care for B.A. or the foster children. The Petitioners do have an adequate emergency care plan for their grandson and the foster children.

10. Mr. Lewis informed Mr. Marriage by telephone in early December 1999, that their home would not be licensed. However, on March 15, 2000, Petitioner wrote a letter to the Department requesting action on their application. Formal, written notification of denial was provided on March 29, 2000.

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.

12. Chapter 409, Florida Statutes, governs the issuance of foster care licenses. Section 409.175, Florida Statutes states:

(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.

* * *

(f) "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.

* * *

(4)(a) The department shall adopt and amend licensing rules for family foster homes, residential child-caring agencies, and

child-placing agencies. The department may also adopt rules relating to the screening requirements for summer day camps and summer 24-hour camps. The requirements for licensure and operation of family foster homes, residential child-caring agencies, and child-placing agencies shall include:

1. 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.

2. 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.

3. 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.

4. 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.

5. The good moral character based upon screening, education, training, and experience requirements for personnel.

6. The department may grant exemptions from disqualification from working with children or the developmentally disabled as provided in s. 435.07.

7. The provision of preservice and inservice training for all foster parents and agency staff.

8. Satisfactory evidence of financial ability to provide care for the children in compliance with licensing requirements.

9. 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.

10. The provision for parental involvement to encourage preservation and strengthening of a child's relationship with the family.

11. The transportation safety of children served.

12. The provisions for safeguarding the cultural, religious, and ethnic values of a child.

13. Provisions to safeguard the legal rights of children served.

* * *

(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.

(b) 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.

* * *

(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.

1. An intentional or negligent act materially affecting the health or safety of children in the home or agency.

2. A violation of the provisions of this section or of licensing rules promulgated pursuant to this section.

3. Noncompliance with the requirements for good moral character as specified in paragraph (4)(a).

4. Failure to dismiss personnel found in noncompliance with requirements for good moral character.

* * *

(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.

(b) As a condition of licensure, foster parents and emergency shelter parents shall successfully complete a minimum of 21 hours of preservice training. The preservice training shall be uniform statewide and shall include, but not be limited to, such areas as:

1. Orientation regarding agency purpose, objectives, resources, policies, and services;

2. Role of the foster parent and the emergency shelter parent as a treatment team member;

3. Transition of a child into and out of foster care and emergency shelter care, including issues of separation, loss, and attachment;

4. Management of difficult child behavior that can be intensified by placement, by prior abuse or neglect, and by prior placement disruptions;

5. Prevention of placement disruptions;

6. Care of children at various developmental levels, including appropriate discipline; and

7. Effects of foster parenting on the family of the foster parent and the emergency shelter parent.

1. In this case, the evidence demonstrated that the Petitioners have met all the requirements for licensure as a foster home. Therefore the Petitioners' application should be granted.

2. Finally, Section 120.60(2), Florida Statutes, states that:

   Every application for license shall be approved or denied within 90 days after receipt of the original application or receipt of the timely requested additional information or correction of errors or omissions unless a shorter period of time for agency action is provided by law.

   
   

3. Section 120.60, Florida Statutes, further states that:

   
   

   Any application for license which is not approved or denied within the 90-day or within 45 days after the recommended order is submitted to the agency and the parties, whichever is latest, shall be deemed approved; and, subject to the satisfactory completion of an examination, if required as prerequisite to licensure, the licensee shall be issued.

   
   

   The Department took around 180 days to formally deny Petitioners' application for licensure.

4. The Department did not act on the Marriaga's application within the statutory time frame. Therefore, the Petitioners' application should be granted.

RECOMMENDATION

Based upon the findings of fact and conclusions of law, it

is

RECOMMENDED:

That the Petitioners' application be granted.

DONE AND ENTERED this 12th day of December, 2000, in Tallahassee, Leon County, Florida.

DIANE CLEAVINGER

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 12th day of December, 2000.

COPIES FURNISHED:

Carlos A. Marriaga Evangelista Marriaga

4514 Southeast 10th Place Ocala, Florida 34471

Ralph J. McMurphy, Esquire Department of Children and

Family Services

1601 West Gulf Atlantic Highway Wildwood, Florida 34785

Josie Tomayo, General Counsel Department of Children and

Family Services

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Virginia A. Daire, Agency Clerk Department of Children and

Family Services Building 2, Room 204B 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.

Docket for Case No: 00-001861

Orders for Case No: 00-001861