The Issue The issue is whether Respondent should grant Petitioner’s application to adopt a child.
Findings Of Fact On September 12, 1996, Petitioner filed an Adoptive Home Application. Among other things, the application discloses that Petitioner is divorced, has had two children who are now 39 and 37 years old, is retired from IBM Corporation, and has never been arrested for or convicted of a felony. The application asks: “What children would you like us to consider for your family (age, sex, siblings, handicapped, etc.)?” In response, Petitioner stated: Approximately 8-10 yrs., male, capable of learning, race not important to me. Candidates would probably be abandoned and/or neglected and/or abused. In short, a child looking for a childhood and support. The application asks: “What children would you not like us to consider for your family (age, sex, siblings, handicapped, etc.)?” In responses, Petitioner stated: I would not consider a child who has ties to undesirable relatives in or near DeSoto County. I will define undesirable for you. Petitioner also submitted a Family Profile dated March 12, 1996, as part of the application process. In the profile, Petitioner stated that he was 61 years old. He supplied four persons as references. In discussing his family relationships in the profile, Petitioner denied ever feeling disappointed, frustrated, or stressed. The question asked with whom he would share various feelings. As for happiness and sadness, Petitioner stated that he would share such feelings only with himself and that he is happy most of the time because it is sunny and hot and sad only when the weather is bad. Describing his present situation, Petitioner stated in the profile that he lives on five secluded acres in a house surrounded by woods. Asked what rules of the house can sometimes be broken, Petitioner responded that all rules are made to be broken. Asked what he would do if the child became afraid of or allergic to a pet, Petitioner, displaying a sense of humor, stated: “Bang Bang (the pet of course).” Petitioner also mentioned that his mode of transportation was a motorcycle with a sidecar. Petitioner stated that he knew only one of his neighbors, whom he visited regularly. However, Petitioner’s mother lives only a mile away, and he sees her daily. When asked whether he intended to discuss his plans to adopt with his family, Petitioner declared: “I don’t intend to discuss my plans with relatives period.” When asked how important grades and school performance would be for the child, Petitioner answered: “The child should try to do the best that is possible for him. That is all that can be expected.” Responding to a question as to the characteristics of the child to be placed in his home, Petitioner stated that he would be male, 10-16 years old, capable of learning, and the remaining characteristics would not matter. In a note dated August 29, 1996, stapled to the profile, Petitioner stated: I am looking for a child who can benefit from all my knowledge and ability so that I can look back in 10 years and know that I made possible a lifetime of happiness and success that would never have otherwise been possible for him. It is I who must be adopted by the child and once adopted I promise unconditional love. By letter dated March 9, 1996, Petitioner added more material to the profile. The letter explains in detail Petitioner’s motivation in adoption. Except for an irrelevant introduction, the letter states in its entirety: Several years ago I met a little boy at his parents [sic] place of business. His parents never spoke to him in a civilized voice and when they didn’t speak to him he was ignored. But all he was being was a little boy and all he wanted was the chance and the encouragement to experience the world about him. I never once saw him do anything malicious or destructive during any of my visits. For my own part, I spent time whenever I went to that business talking to that little boy about whatever things I could think of that might interest him. He always enjoyed helping me to carry out my purchases. And then one day when he was about 9 years old he asked m[e] if I would take him for a ride on my motorcycle. At first I passed of[f] the request with “You’ve got to have your parents’ permission and you’ve got to have a helmet.” He kept after me for several months and though I didn’t have a helmet to fit him he did have his parents’ permission. About the time of his 10th birthday I acquired the needed helmet and we began taking fun trips, sportscar races, seaquarium, fishing, etc. He was very open and conversive; I learned about his problems as well as his joys. Some of the time we spent at my home playing football, getting our fishing gear ready, and working on his reading skills with the “Hooked on Phonics” program I had acquired. I was also teaching him how to use a rifle and to use it safely. He liked being at my home and told me so; his words were, “I wished I lived here.” Secretly, I wished so too, but sadly I had to deliver him to his “home” at the end of the day. His “home was a dilapidated 10x35 trailer with windows missing. I once bought him shoes to fit, 3 full sizes larger than the ones he was wearing and I pleaded with his parents to no avail to let me take him to a dentist as he was having frequent toothaches. The last time he was at my home I had to force him to leave. The very next day I went to pick him up after school to work on “Hooked on Phonics” and he wouldn’t speak to me. His mother said that he had felt uncomfortable with me the last couple of times he was with me. I didn’t sleep well for several weeks after this experience and contemplated what to do that would be best for the boy. Unfortunately, what is best and what can be done legally do not coincide. About a year has transpired [sic] since I went through this frustrating experience and then in discussing this with a friend only recently came the realization that the ingredient that caused the frustration would be eliminated in the care of foster children and parents, my prior experience providing the incentive and enthusiasm. I feel that to become a foster parent will be a major satisfaction and accomplishment in my life. My intention is to ultimately adopt a child so that the only requirement that I have is that the child placed with me must be legally free to be adopted. I would place the choice to be or not be adopted by me entirely upon the child. Emotionally I could accept his choice either pro or con but would be unwilling to see the child removed against his will. When my own natural children were growing, I had scant time to spend with them as I worked long hours. Such is no longer the case. I now have essentially unlimited time and some fair background in caring for children. I am capable of supplementing a child’s education or if necessary supplying all of it. My teaching background bears witness to this. The most difficult thing that I foresee comes from my experience with children who have lived for any period of time with “bad” parents. In some cases learned prejudice, hate, fear, or falsehoods must be erased and replaced with positive values; in others the child’s trust has been betrayed so greatly or so often that a long period of stability and solid support will be necessary to establish a loving bond. Simultaneously, the easy part will be to establish a physical environment wherein the child can begin to develope normally. My interest and abilities are split fairly evenly between the intellectual and artisan arenas. I enjoy great literature and great music and read at least two foreign languages. I also enjoy building things, a home, furniture, or a model; presently I am restoring a motorcycle. I also enjoy travelling and camping during the summer months. About a year ago I discovered what a joy it is to befriend a child, especially one who is desperately in need of help. I also discovered that I am in extremely good physical condition and though I can’t outrun a 10 year old, I won’t quit and won’[t] drop dead trying. I feel I am ready to continue what I tried to do a year [ago], this time without outside interference. On June 3, 1996, Petitioner completed the 30-hour class on Model Approach to Partnerships in Parenting. On August 29, 1996, Respondent’s adoption counselor, Ted Hanleck, met Petitioner at his home as part of a home study. Mr. Hanleck completed the home study and prepared an Adoptive Home Study report dated January 22, 1997. The report notes the home visit on August 29 and four office visits in August, October, November, and December, 1996. The Adoptive Home Study states, among other things, that Petitioner wants no contact between the birth parents and the child, but would consider contact between the child and his siblings or grandparents. Also, Petitioner would consider a child with a mild-to-moderate physical handicap and a manageable behavior problem. The report accurately states that Petitioner would take a boy of any race from 8 to 10 years old. The Adoptive Home Study notes that Petitioner’s mother is 91 years old. The report describes Petitioner’s house as solar powered and without air conditioning and a telephone, although Petitioner said he would purchase a mobile phone. The Adoptive Home Study reviews Petitioner’s childhood: his education, which includes a Bachelor of Mechanical Engineering degree that Petitioner earned at Syracuse University; his 22-year career with IBM; his employment as an instructor at Cornell University, Marist College, IBM, and G. Pierce Wood Memorial Hospital; and the dissolution of his 35-year marriage in 1992 following a seven- year separation. The Adoptive Home Study discloses that Petitioner receives annual retirement income of about $15,000 from IBM and has no debts. Petitioner promises to place any payments attributable to his adopting a child into a trust fund for the child’s college education. Petitioner lacks life and health insurance coverage. The Adoptive Home Study mentions that Petitioner’s adult daughter writes her father every month, but that he has not responded to any of her letters for several years. Petitioner’s adult son described his relationship with his father as distant. Both children stated that they would not leave their children, if they had any, with Petitioner. Petitioner explained that the children had sided with their mother following the divorce. The Adoptive Home Study reviews the references by noting that local and state law enforcement revealed no reports or charges against Petitioner. Two of the three persons listed as references, who were not relatives, were noncommittal regarding the placement of a member of their family in Petitioner’s home for care. All persons giving recommendations said that Petitioner was “conscientious, a perfectionist, strong-willed, has a sense of humor, was confident and likable.” However, it was evident that the persons providing the recommendations did not know Petitioner well. The Adoptive Home Study concludes by noting several concerns. First, Petitioner lives by himself and is self- sufficient except for one neighbor who has offered to provide transportation when needed. Second, Petitioner appears emotionally self- sufficient with a history of disassociating himself from individuals who do not accept his opinions and lifestyle, including his own children. This raises concerns as to how [Petitioner] would react to a child who, two or three years after adoption[,] developed different interests and opinions from [Petitioner’s] own. Third, Petitioner may not be willing to “help a child discover or maintain awareness of his personal history.” The report notes: “[Petitioner] has strong opinions concerning birth parents and contact with extended relatives.” The report adds: Petitioner has clearly stated that he wants to adopt a child that can learn and that has the potential to go to college. It is uncertain how [Petitioner] would respond to an adopted child that, several years after adoption, decided to drop out of school or that did not put forth effort towards academic achievement. Fourth, Petitioner would not be willing to adopt a child with certain special needs. The report states that Petitioner would take a child over eight years of age or of a minority race, but would not adopt a child with a mental, emotional, or physical learning disability or serious physical handicap. Also, Petitioner would not consider a child who had an interest in religion that needed to be continued. The Adoptive Home Study finds that these concerns and the potential for a failed adoption “seem to outweigh the strengths [Petitioner] has as an adoptive applicant. Therefore, we do not recommend that [Petitioner] be approved as an adoptive candidate.” Due to the recommendation of the Adoptive Home Study, the Adoptive Applicants Review Committee met on February 24, 1997, to review Petitioner’s application. The committee report notes that the Adoptive Home Study had found positives in Petitioner’s financial security, good health, time to devote to a child, and clear screenings as to an abuse or criminal record. The committee report acknowledges that the concerns identified by the Adoptive Home Study were Petitioner’s lack of an adequate support system; tendency to dissociate himself from those, such as his children, who do not accept his opinion; attitude toward birth families; expectations of the child and likelihood of rejecting the child if he does not live up to Petitioner’s expectations; and limited array of acceptable special needs-- namely, any race and an age of 8-12 years. The committee undertook considerable effort to develop all relevant information underlying Petitioner’s application. Each committee member decided to deny the application. The chair of the committee explained: I believe that the purpose of the Department’s adoption program is to meet the needs of the children committed to the Department and needing permanent nurturing homes. It is to be hoped that these placements will also meet the needs of families wishing to adopt. However[,] the focus of the program must always be on the needs of the child with the families as resources. Regardless of [Petitioner’s] desire to parent a child, I do not believe that he can meet the wide range of needs for the children who are waiting to be adopted. During the course of these proceedings [Petitioner] has interacted with at least nine Department employees, most of whom have many years of experience working with foster and adoptive children. Not one of them recommended him as an adoptive parent. Those people who might be presumed to have had the closest relationships with him, his own children and former wife[,] are unanimous in their feelings that he should not adopt. For these reasons[,] as well as those cited by the committee members, I concur with their recommendation. On March 31, 1997, Respondent informed Petitioner that his application to adopt was denied for several reasons. First, Petitioner’s expectations of a child were unrealistic, and Petitioner was not sufficiently flexible to meet the child’s needs if he failed to live up to Petitioner’s expectations. Second, Petitioner would undermine the placement by refusing to accept the child’s birth connections if they are unacceptable to Petitioner. Third, Petitioner’s support system lacks a viable plan for the care of the child if Petitioner could not raise the child to adulthood and lacks any significant female influence. Fourth, Petitioner displays insufficient commitment in his unwillingness to maintain relationships with persons, such as his children, whose interests and choices differ from Petitioner’s. Fifth, Petitioner is unwilling to work cooperatively with others, such as Respondent’s counselors and school personnel, to deal with the special needs of the most of the children placed by Respondent. Petitioner’s daughter, who is a divorced schoolteacher, testified that she was around 30 years old when her parents divorced, so it is unlikely that the children sided with the mother, as Petitioner asserts. Petitioner’s daughter testified that Petitioner was a good provider when she was a child and never abused the children, but never seemed interested in children when she and her brother were young. Although always stressing the importance of an education, Petitioner never paid for either child’s college expenses. Petitioner’s daughter writes her father, but he has not responded in several years. According to both of them, she would write about personal things and he would write about ideas, and he decided that he did not want to continue the correspondence because it did not interest him. Petitioner testified that he had no interest in children just five years ago, and then he met the boy described at length in his letter. In this brief relationship, Petitioner discovered a wealth of emotion, and this experience sparked Petitioner’s interest in adoption. He then initiated the adoption process that resulted in this case. Petitioner is highly individualistic and self- reliant. He rightly protested the periodic appearance, in the adoption review process, of numerous irrelevant items, such as references to his mode of transportation--motorcycles--and his professed atheism, the latter of which is relevant only to the placement of an older child who has already developed religious interests. The question is what kind of parent Petitioner would make. Petitioner could meet a child’s physical and financial needs, although the absence of medical insurance is a problem. The real questions in this case are whether Petitioner could meet the emotional and social needs of a child. The adoption application asks the applicant to explore his emotions. Petitioner did not give these questions much thought, as judged his cursory, even flippant, answers. His happiness or sadness is driven by the weather, and he denies having a wide range of other normal feelings and, thus, the need to deal with such feelings. Petitioner does not appear to be extended much emotionally or socially, except with his aged mother. He clearly has been unable to accept his daughter on her own terms. Likely, this has been a problem with his relationship with his son. Petitioner’s intense emotional bond with the neighborhood boy was accompanied by the enrichment of the boy’s life culturally, intellectually, and practically. It appears likely that Petitioner would follow the same pattern with an adoptee. In these relationships, the potential for frustration is high. Petitioner has little experience in feeling and dealing with his feelings, and his emotional naiveté ill-prepares him for handling the emotional ups and downs of the typical or, even more so, troubled adolescent boy. The likely price of Petitioner’s frustration is alienation and estrangement, which are serious injuries for the older adoptee, who has already experienced more than his share of these pains in his young life. Petitioner’s narrow self-focus would hamper his ability to help a child develop socially too. Petitioner is intolerant of the inadequacies of the bureaucracies with which he was forced to work in his relationship with the boy and his attempt to adopt a child. He is intolerant of the inadequacies of existing family members. Doubtlessly, all organizations and family members exhibit inadequacies, and learning to deal constructively with such organizations and persons may no longer be required of Petitioner, but will be required of any child he would adopt.
Recommendation It is RECOMMENDED that the Department of Children and Family Services enter a final order denying Petitioner’s application to adopt a child. DONE AND ENTERED this 26th day of September, 1997, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 26th day of September, 1997. COPIES FURNISHED: B. M. G. Post Office Box 3298 Arcadia, Florida 34265-3298 Eugenie G. Rehak District Legal Counsel Post Office Box 60085 Fort Myers, Florida 33906-0085 Gregory D. Venz, Agency Clerk Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard A. Doran, General Counsel Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The determinative issue in this cause is whether Petitioners "abused" and "neglected" foster children in their care, as those terms are defined in Sections 39.01(2) and 39.01(45), Florida Statutes (2000). As a result of the alleged abusive neglect, two subsequent issues are raised: (1) whether Petitioners' foster home license should be revoked for the reasons as stated in the Administrative Complaint dated July 20, 2001; and (2) whether Respondent's denial of Petitioners' requests to adopt the "M" sibling and to adopt the "T/S" sibling foster children, based primarily upon the allegations in the Administrative Compliant dated July 20, 2001, as explained in a denial letter dated January 18, 2002, was appropriate.
Findings Of Fact Based upon observation of the witnesses and their demeanor while testifying in person and by taped interviews, the documentary materials received in evidence, stipulations by the parties, evidentiary rulings during the final hearing, and the entire record compiled herein, the following relevant and material facts are found. At all times pertinent to the issues herein, Respondent, the Department of Children and Family Services, was the state agency responsible for receiving and approving applications for foster care licenses and for monitoring, regulating, and if necessary, suspending or revoking foster parent licenses pursuant to Section 409.175, Florida Statutes. At all times pertinent to the issues herein, Respondent, the Department of Children and Family Services, was the state agency responsible for receiving, evaluating, approving or denying applications for adoption of foster children pursuant to Section 63.062, Florida Statutes, and Chapter 65C-16, Florida Administrative Code. Petitioners' Foster Care Licensure History Petitioners are married and are the parents of two biological children. Mrs. Sawyer was reared with foster children and has always desired to become a foster parent. Petitioners were initially licensed by the Agency as foster parents in October of 1986, and six months later on April 20, 1987, Petitioners voluntarily closed their foster home due to Mrs. Sawyer's complications with the pregnancy of their second child. During the above six-month licensed period, Petitioners successfully fostered ten children, the last child was removed by the Agency from the foster home in March 1987. In December 1986, two months after initial licensing, Petitioners were the subject of an abuse report alleging spanking a child. The Agency's investigation concluded that the abuse report was "unfounded,"4 and closure was recommended by the Agency's investigator. On September 7, 1987, the Agency again licensed Petitioners as foster parents. Eight months thereafter, on May 23, 1988, the Agency again closed Petitioners' foster home. On August 10, 1988, three months later, the Agency, for the third time, licensed Petitioners as foster parents. Mrs. Sawyer acknowledged using corporal discipline on a foster child during the 1988 licensure period. As a result of the corporal punishment incident in 1988, the Agency required Petitioners to attended its Model Approach to Partnership in Parenting (MAPP) classes, which Petitioners attended and completed. The 1988 licensure of Petitioners as foster parents was specifically granted for the "T/S" sibling group who, with voluntary permission of their biological parents, had been living with Petitioners for approximately two months before their official placement with Petitioners by the Agency. Since 1988, the Agency has annually renewed Petitioners' foster care license.5 Responding to the requests of the Agency, Petitioners on occasions fostered as many as 16 to 20 foster children. Petitioners' foster home was frequently used by the Agency for unannounced "overnight" foster care, many of which extended into protracted foster care periods. During periods when the Agency's need for foster home beds was pressing, the Agency's rule-of-five was waived by the Agency's District Administrator so that Petitioners could and did house more children.6 The record reflects no evidence of complaints of abuse or any other complaints during the periods the Agency needed and made use of Petitioners' home to foster children. The evidence of record, viewed chronologically, reflects a protracted period of intense investigation of allegations which, if true, were apparently ongoing over a period of months prior to the filing of Abuse Report 2000-198255, the basis of the Agency's intended revocation of Petitioners' foster care license. Petitioners' latest license was issued on August 24, 2000, and was effective until August 24, 2001. This August 24, 2000, foster home license is the subject of the Agency's revocation notice, which states: The revocation is based on the following reasons: Between December 21, 2000 and March 1, 2001, the Department of Children and Families investigated eleven reports of abuse and neglect involving your home. In Florida Abuse Hotline Report 2000-198255[7] it was concluded that there were verified findings of excessive corporal punishment and confinement, bizarre punishment and excessive restraint committed by Cynthia Sawyer towards several foster children in her care. The report also noted several instances of inappropriate physical punishment, which is a violation of the foster parent disciplinary policy. These incidents are considered "an intentional or negligent act materially affecting the health and safety of children in the home or agency" and a violation of the licensing rules promulgated pursuant to section 409.175, Florida Statutes. Section 409.175(8)(b) 1 and 2 Florida Statutes; 65C- 13.010(1)(b)5 Florida Administrative Code. (emphasis added) The Agency's allegations of neglect and abuse revolved around four specific types of disciplinary activities that are alleged to have occurred on or after August 24, 2000, the date the current foster care license was issued, and to have terminated on or before March 1, 2001, the date the Agency removed children from Petitioners' home. The four specific types of disciplinary activities are: (1) excessive corporal punishment and confinement, (2) inappropriate physical punishment, (3) bizarre punishment, and (4) excessive restraints.8 In support of those allegations, the Agency presented the testimonies of several foster children, video- taped interviews of three foster children made in March 2001, approximately one month after removal from Petitioners' home; the testimony of another foster care parent; the testimony of a Guardian Ad Litem; and the testimonies of several of the Agency's employees. Mike Katz, agency employee, prepared the Administrative Complaint but had no personal knowledge of the abuse allegations contained in Abuse Report 2000-198255, which formed the basis for the Administrative Complaint he prepared. Mr. Katz acknowledged that his understanding of the Agency's practice and policy was that "one incident of corporal punishment" did not equate to foster care license revocation. According to Mr. Katz, evaluating corporal punishment allegations requires all factors be taken into consideration and the totality of circumstances be reviewed; the intended result is a fact specific determination for each case of alleged corporal punishment. Kate Kimball's, the Sawyers' family service counselor, testimony was primarily concerned with agency reports dating from December 3, 1996, through the year 2000. Her testimony regarding and relating to matters that occurred prior to December 21, 2000, are not relevant nor material to issues of foster home license denial as stated in the Administrative Complaint that is challenged by Petitioners. However, Ms. Kimball's testimony regarding the Sawyers' life-style during the period she was their case worker is relevant and material to the issue of denial of the Sawyers' application to adopt the "M" children. The record reflects that in 1999, while fostering the "T/S" and the "M" siblings under the Agency's District Administrator's waiver of the rule-of-five policy, Petitioners were given an "Above Satisfactory" evaluation by the assigned foster care case worker, Kim Bryant. Ms. Bryant reported that the Sawyers are "very involved, supportative of the children's extra curricular activities and educational needs; show children much needed attention and affection; children and foster parents seem very fond of each other and there is much improvement with the children educationally and emotionally and they appear to have adjusted well in the home." Ms. Bryant's report is undisputed and credible. One year later, Hotline Report 2000-078274 was filed containing an allegation of medical negligence against Mrs. Sawyer as a result of her attempt to refill a prescribed medication for a foster child in her care after the child had taken all the medication. In this particular instance, the Agency had failed to provided Mrs. Sawyer with the child's medical record when the child was placed in her foster home. This medical negligence allegation was resolved when the case worker assigned to the Sawyers secured from the child's file the physician's prescription refill order. The Hotline Report was closed by the Agency with "No indicators of alleged maltreatment-or abuse/neglect." On June 26, 2000, and after the Sawyers added separate bedrooms and bathrooms for the girls and separate bedrooms and bathrooms for the boys to their home to accommodate 16 children, their case worker, Ms. Kimball, wrote, "It appeared that the Department has continued to utilize their home, as we have had no alternatives." The home study case worker's comments are revealing and reliable. It is reasonable to infer that the Agency was satisfied with the Sawyers' methods of disciplining foster children in their home, when they met the Agency's need for foster beds. However, when the Agency's need for foster beds were apparently met by other resources their prior position of satisfaction with the Sawyers, for reasons not entirely clear from the record, took a sudden 180-degree turn-about from satisfaction to dissatisfaction, within a six-month time period from June 26, 2000, to December 21, 2000. The case worker assigned to the "M" children, Anjanet Stilwell, reported that the Sawyers' foster home was "a wonderful foster home--they were very cooperative and caring." Case worker, Karen Braden, who was in the home twice weekly regarding kids assigned to her, wrote, "Cindy is great! I have no concerns regarding placement of my kids. I truly don't know how she does it!" I find Ms. Stilwell's and Ms. Braden's opinions acceptable and reflective of the Agency's approved satisfactory view of the Sawyers as foster parents for many children who were housed solely by the Agency's waiver of its rule-of-five policy and for its benefit. One foster care referral report regarding the "T/S" children written by case worker Heather Blair was considered at the Adoption Applicant Review Committee (AARC) staffing. In her report, Ms. Blair summarized Psychologist Lisa Gaise's conclusions that: "3 T/S children reported being paddle [sic] and 'the context in which these clear disclosures were made was so natural as to dispel any questions of the veracity of their statements.'" Apparently the AARC staffing considered Ms. Gaise's comments credible in their decision to deny the adoption application. The fact of the matter is that Ms. Blair's statement regarding the "truth" and acceptance of Lisa Gaise's opinion that the child's statement were true, is not accepted for the truth asserted and, therefore, is not credible.9 Bobby Cooper, another agency witness, commenced his investigation of Abuse Report 2000-198255, on December 21, 2000, at 4:00 p.m. Mr. Cooper's investigation consisted entirely of reviewing reports of other agency investigators. Mr. Cooper had no personal knowledge nor had he personally sought independent collaboration of statements contained in the reports he reviewed. His testimony is not credible. Kate Kimball, the case worker assigned to Petitioners' foster home, often made announced and unannounced visits to Petitioners' foster home, as required by Agency policy. Ms. Kimball was in close and constant contact with the foster children and the foster parents during her visits to the home. Ms. Kimball was required to (1) observe the foster children, speak in confidence with each child individually, immediately report any "signs" of abuse or "suspected abuse," and to (4) cause "removal" of a child or children from abusive foster home situations. Ms. Kimball never requested nor caused removal of a child from Petitioners' foster home during the period of December 21, 2000, through March 2001, the period the abuse reports were allegedly "verified." Detective Christi Esquinaldo was assigned to investigate this case by Hillsborough County Sheriff's Department. Her investigation consisted of interviewing foster child L.S., reviewing the abuse reports, and creating a matrix from those reports. The matrix consisted of Detective Esquinaldo's listing the names of children who were alleged to have been subjected to a specific abusive discipline crossed referenced by the names of the children who made the allegations. According to Detective Esquinaldo, L.S. told her that the Sawyers "made children stand in a corner for three to four hours" as punishment, and Lil David was restrained to a chair for "three to four hours." However, during her testimony at the hearing, L.S. denied having made those statements to Detective Esquinaldo. L.S.'s testimony at the final hearing is credible. In closing her investigation, Detective Esquinaldo recommended to the State Attorney's Office the direct filing of a felony charge of Aggravated Child Abuse against the Sawyers. The Hillsborough County State Attorney's Office, citing "numerous inconsistencies in the statements of the children," declined to file any charges against the Sawyers and closed their files on the matter. After reviewing the children's testimonies of record, I am compelled to agree with the Hillsborough County State Attorney Office that the "inconsistencies of the statements of the children" render their collective testimonies unreliable and insufficient to provide a preponderance of evidence necessary to establish a fact. None of the adult witnesses, presented by the Agency, possessed knowledge acquired through collaboration of the children's stories from independent sources and/or their investigations regarding the abuse allegations alleged in the Complaint. The Agency's employees' initial and total acceptance of the children's recollection of time, i.e. as "all day" and "all night," should have, but did not raise reasonable concern regarding each child's ability to differentiate between fantasy and reality and the child's accuracy of recall as well. The children's story-line, that Petitioners forced each of them to walk, to stand in time-outs, to dig holes, to sleep in their beds or do any other activities "all day" or "all night," was testified to as a form of punishment and not discipline for acting up. Accepting as true, accurate, and realistic, their identical versions of four specific experiences from the several children without more does not equate to credible nor collaborative evidence. The testimonies presented by several foster children at this hearing were, at best, confusing, conflicting and contradictory. When asked specific questions about the several forms and methods of discipline, the unanimity of their responses were: stand in the corner "all night," dig holes "all day," walk in circles "all day," and sleep in the bed "all day." The fact that the children's testimonies clustered in a certain position (sibling groups wanting to stay together as a group and those sibling groups wanting to be moved to another foster home as a group gave almost identical answers to questions relating to specific disciplines) does not mean nor imply that their testimonies were necessarily accurate, realistic, or true. In fact, the record reflects that several of the testimonies initially given by the children to the Agency were in conflict with their testimonies subsequently given to the Agency representatives and testimony given at the final hearing. Considering the children's testimonies in the context of the children's ages; the children's physical sizes; the physical improbability of a small child actually squatting, with knees bent, against a wall with both arms held out in front of the body or held out to the sides of their bodies all day; and their description of time as "all day" and "all-night," rendered their collective testimonies unrealistic, unreliable and, therefore, not credible. Steve Barber, Petitioners' pastor and the one who has interfaced with the foster children, based upon his experience as a former high school football coach, gave undisputed testimony that the physical size and stature of the young children made it physically impossible for any of them to "stand, squat, dig or walk in circles, all day." Based upon the testimony of Mr. Barber and the unrealistic testimonies of the several children, Respondent has failed to prove that Petitioners committed "excesses" in administering policy discipline, by imposing time-outs, separation from other children, grounding, loss of privileges, and by assigning other chores. I find that the cumulative testimonies of the foster children found in the Agency reports in evidence and of those children who testified at the final hearing unreliable, inconsistent, devoid of details, physically impossible in most instances and, therefore, insufficient to establish by a preponderance that the Sawyers subjected them to: (1) excessive corporal punishment and confinement, (2) inappropriate physical punishment, (3) bizarre punishment, and (4) use of excessive restraints as punishment as alleged in the Administrative Complaint filed in this cause. Of the three video-taped interviews reviewed by the undersigned, the interview of D.I. revealed a reliable and detailed account of the daily life and activities of the foster children in the Sawyers' home from an articulate child with personal knowledge and accurate recall of events. First, D.I. was in the Sawyers' foster care for a period of seven months. Second, D.I. appeared to be bright, intelligent, articulate, straight-forward, and he was definite and clear in his responses to questions asked by the Agency's spokesperson. Third, D.I.'s memory of details was complete, uncompromising, realistic, and reasonable. Fourth, D.I. acknowledged that his possibility of being reunited with his biological mother was nonexistent, and he would probably be in foster care until his majority, if not adopted, preferably by the Sawyers. Fifth, he is familiar with and aware of foster children, individually and as sibling groups "working the foster care system for their desired ends by telling stories." During his seven months' stay in foster care with the Sawyers, D.I. testified that he never saw nor was he made aware by other children of any child punished by the Sawyers in the form of being forced to stand in time-out "all day," forced to dig holes "all night," or forced to walk in circles "all day." D.I. knew that Lil L.S. pooped in her pants and smeared the poop over the walls of the foster care residence. He knows this because he was one of the older children who volunteered to clean the poop off the walls; he remembers these incidents because the walls had "white spots" where the cleaning solutions were used. He also remembered because Mrs. Sawyer would put white powder on the bedroom floor leading from Lil L.S.'s room to other parts of the house. In the morning when Lil L.S. was awaken and asked about poop on the walls, she would blame other children, but her foot prints would prove contradiction of the story of not having gotten out of bed during the night. According to D.I., Lil L.S. was never "hosed down outside" the house after pooping on herself. Each time Lil L.S. pooped on herself, Mrs. Cindy would require her to go into her bathroom10 and bathe herself. When asked about household chores and work around the house as a form of punishment, D.I. answered that older children would be offered the opportunity to "work outside" with Mr. Sawyer on "things around the house," only if that child wanted to work outside. If not, the child was given the option to stay outside and play or to go inside and watch T.V., play games, or do other things. D.I. was emphatic that the opportunity to do other things was made available to each child only after that child completed his or her homework. Homework was always first, and some children got in trouble because of not doing or completing their homework. According to D.I., the younger children who played outside would customarily play in the round-about driveway, the yard, and on the Jungle Jim play set. The older children would customarily do other things. D.I.'s examples of "doing things around the house" were: helping Mr. Sawyer work on his truck; putting together and/or repairing the Jungle Jim swing-slide play set; helping to dig a trench line to lay pipe for the new water heater connection; tending to and caring for the animals; planting trees and stuff; and painting and building additional bathrooms and bedrooms onto the house. According to D.I., all outside activities were made available to any children who wished to participate in them instead of playing among themselves. When asked, D.I. was empathic in his answer that no child, "as a form of punishment," was forced to assist Mr. Sawyer in "doing things around the house," if they wanted to help they could, if not, then other activities were available and that no child was handcuffed nor had he seen any (metal) handcuffs at the Sawyers' house, save his pair of red plastic toy handcuffs that came with a toy set the Sawyers gave him. D.I., from observation, knew Lil David to be self-mutilating.11 D.I. recalls that "Lil David would sometimes just pick himself to make himself bleed." During his seven-month stay and on more than one occasion, in passing, D.I. would see Lil David in bed at night with velcro restraints on his wrists and the bed to stop him from picking himself and making himself bleed. "Mrs. Cindy did this to keep Lil David from picking himself when he was asleep."12 Regarding meal times and meals at Mrs. Cindy's, D.I. stated that all the children ate the same meal at the same time "cause there was so many of us and Mrs. Cindy had no time for separate meals and we [older children] helped to feed the young children, we did help." When asked about peanut butter sandwiches as a form of punishment, D.I. responded, "Those children who had been bad or were in time-out at mealtime were separated from the other children and given peanut butter sandwiches to eat while in their time-outs. But Mrs. Cindy would say to them 'say you are sorry and you can join us.'" He never saw nor knew of a child in time-out (against the wall) for "hours." The longest time-out he could recall was about "20 minutes," and that was because the child was "acting up" in the time-out and had additional time added to the time-out. D.I. was familiar with the "T/S" and (other) siblings. He knew from personal experience in foster care that older siblings would instruct their younger siblings on all matters: what to say, when to say it, how to act, and how to act up. D.I. was personally familiar with "foster homes" and the means and methods of "getting out of one" and "staying together" as a sibling group and getting into another as a group. When asked about "corporal punishment" i.e. spanking with a wooden paddle and/or slapping with hands, D.I. testified that during his seven-month stay, he knew of no child to have gotten spanked with a wood paddle. "I never saw a wood paddle." Regarding "getting slapped by Mrs. Cindy" as punishment, D.I. answered that Ms. Cindy would "tap" you on the back of the head, butt, or shoulder "to get your attention, like if she was talking to you and you were watching T.V. and not answering her but she never slapped any of us for punishment." This method of getting one child's attention by touching is reasonable when considered in the context of the Agency's waiver of its rule-of- five policy so as to place as many as 16 to 20 children in the Sawyers' foster care home. 13 The video testimony of D.I. is accurate, detailed, reasonable, realistic, based upon his personal knowledge, undisputed and, therefore, credible. Based in part upon the video testimony of D.I., Respondent has failed to establish by a preponderance of evidence that the Sawyers subjected a foster child in their care to: (1) excessive corporal punishment and confinement, (2) inappropriate physical punishment, (3) bizarre punishment, and (4) use of excessive restraints for the time period alleged in the Administrative Complaint. The Sawyers' admitted use of velcro restraints on Lil David was neither excessive, punitive nor disciplinary, but rather was for Lil David's protection from harming himself. The Sawyers' used velcro restraints on Lil David during the day only when he was in time-out and sitting in a small rocking chair and during the night when he was put to bed. The evidence of record by testimonies of virtually every witnesses who knew Lil David knew him to be a self-mutilator. The use of restraints is an acceptable, preventative method for protection in this situation. The record contains no evidence that the Agency provided the Sawyers with an evaluation report of Lil David upon his placement nor during his stay within their foster home. Lil David's medical report would have advised the Sawyers of Lil David's self-mutilation problem. It is a reasonable assumption that had the Agency provided Lil David's medical records, the Sawyers would have been alerted to Lil David's self-mutilation problem and would have had the benefit of the Agency's instructions regarding care and protection for Lil David's problem of self-mutilation. The Sawyers' admitted use of velcro restraints reflects a caring and sincere effort of the foster parents to protect the child from hurting himself. In the absence of information from the Agency regarding Lil David's condition, the Sawyers' use of an acceptable, safe and preventative method of care for this particular problem reflects their efforts to comply with the "spirit" of the rules regarding foster parent responsibilities. The record contains no evidence that the Sawyers' use of velcro restraints to prevent Lil David's self- mutilation was "willfully harmful" or "neglect" or an "abusive" act of intentional punishment. Bobby Cooper's, child protection investigator, reported findings and conclusions were based entirely upon statements provided by individuals he interviewed. The record contains no evidence of collaboration to substantiate testimonies of the children. Therefore, Mr. Cooper's testimony is hearsay without support and therefore, not credible. Finally, consideration is given to what is not in evidence. First, the record in this case contains no evidence of a child alleged to have suffered ongoing neglect and abuse in the form of excessive, bizarre,14 and inappropriate punishment, or to have borne body marks or bruises resulting from the alleged treatment by the Sawyers. Second, the record in this case contains no evidence of a Sawyer-housed foster child to have suffered "physical, mental or emotional injury" as the result of the alleged negligent and abusive treatment. Third, the record contains no evidence from which it could be inferred that a foster child removed from Petitioners' home suffered a "discernible and substantial impairment in the ability to function within the normal range of performance and behavior" as a direct result of the alleged abusive discipline.15 The evidence of record supports a reasonable conclusion that Mrs. Sawyer was proactive in seeking the assistance of local politicians and state officials to accomplish her apparent goal of responsive and exceptional services from the Department for her foster children. It is undisputed that the Sawyers, with the advice and consent of the Department, had more foster children than was reasonable to expect only two adults to provide a minimal of custodial care. Permitting the Sawyers to house as many as 16 to 20 foster children, plus their two biological children, at any point in time, was permissive and self serving by the Department and was overreaching acceptance by the Sawyers. It is a reasonable inference that in this case both the Department and the Sawyers engaged in a mutual course of conduct to satisfy their respective needs and desires. When the mutually beneficial relationship came to a close, a reversal of opinions and recommendations from the Department regarding the Sawyers occurred. The Sawyers, who had been described by the Department as "unbelievable foster parents," became merely unbelievable when confronted with and evaluated by conflicting stories of 14 foster children removed from their home. Denial of Adoption Application for the M sibling group Turning to evidence in the record regarding the denial of Petitioners' application to adopt the four "M" siblings, the fact that some animosity existed between Ms. Gains16 and Mrs. Sawyer, became readily apparent during Ms. Gains' testimony. The existence of animosity was further confirmed by Ms. Gains' detailed chronology of alleged abusive acts and omissions by Mrs. Sawyer over a period in excess of one year. When answering questions asked by the Agency's representative regarding Ms. Gains' statements and opinion of Mrs. Sawyer, D.I. answered: "She [sic] said handcuffs and other things about Mrs. Cindy so as to get kids moved out of Mrs. Cindy's house to her house." Based upon D.I. testimony above, Ms. Gains' testimony given at the hearing and her written report in evidence is biased and unreliable. In the evaluation and review of Petitioners' adoption request, Respondent appropriately engaged in a holistic evaluation of all abuse reports filed, investigative reports, personal opinions, and comments from Department employees, community members and other foster parents, dating from as early as 1986 to the date of the adoption denial. Respondent, in reevaluation of Petitioners' adoption request for the "M" children, should hereinafter be guided by the Findings of Fact herein that allegations of excessive discipline as contained in the Administrative Compliant herein were not proven by the testimonies of the Agency's witnesses and documentary evidence. Therefore, allegations found in Abuse Report 2000-198255 reported or alleged to have occurred within the time period of December 21, 2000, through March 1, 2001, shall not be considered by the Agency in its reevaluation of the Sawyers' application to adopt the "M" siblings; being mindful that the "M" siblings' desire to be adopted by the Sawyers is in the "M" child(ren)'s best interest.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order granting renewal of Petitioners' Foster Care License. It is further RECOMMENDED, that in accord with the expressed desires of the "M" siblings to be adopted by Petitioners, that the Department enter a final order granting Petitioners' application to adopt the "M" siblings. DONE AND ENTERED this 13th day of November, 2002, in Tallahassee, Leon County, Florida. FRED L. BUCKINE 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 November, 2002.
Findings Of Fact The Petitioners filed an application for institutional adoption of the minor child, K.H., with the Department of Health and Rehabilitative Services at the invitation of the Department. The Petitioners and the Department of Health and Rehabilitative Services believed that the termination of the parental rights of the minor child, K.H., was imminent. The parental rights of the minor child, K.H., were not terminated as expected. As a result of the application for adoption, the Department of Health and Rehabilitative Services generated an adoption home study of the Petitioners. The report of the review committee dated January 1, 1995, based upon the adoption home study, was issued prior to the termination of the parental rights of the minor child, K.H. Petitioners were notified and timely challenged the report of the review committee, and the concurrence to the report of Dr. John M. Awad, Ph.D., District 2 Administrator. Petitioners challenged the jurisdiction of the Department to enter the report of the review committee and Dr. Awad's concurrence in the absence of the termination of the parental rights of the minor child, K.H. The parties agree to present to the Hearing Officer the issue: Whether the committee report and the concurrence of Dr. Awad should have been completed in the absence of the termination of the parental rights to the minor child, K.H.?
Recommendation Based upon the consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: That the committee's report and the concurrence of Dr. John M. Awad, Ph.D., be declared a nullity, that a letter be prepared denying Petitioner's adoption application because parental rights have not been terminated, and that the file be closed except upon order of the Circuit Court. DONE and ENTERED this 22nd day of September, 1995, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of September, 1995. COPIES FURNISHED: William C. Owen, Esquire Panza, Maurer, Maynard & Neel 215 South Monroe Street, Suite 320 Tallahassee, Florida 32301 Charles A. Finkel, Esquire Suite 252 2639 North Monroe Street Tallahassee, Florida 32399-2949 Robert L. Powell, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Kim Tucker, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700
The Issue The issue in this case is whether Petitioner should revoke Respondent's license to operate a foster home for dependent children.
Findings Of Fact Petitioner is the state agency responsible for issuing licenses to operate foster homes for dependent children. Petitioner also prosecutes license discipline proceedings. Respondent is the maternal aunt of three female children, Deanna, Angelique, and Antoinette. Respondent is a retired teacher. She worked for the state of New York before she moved to Florida. She also receives Social Security payments. Prior to 1990, Respondent's three nieces lived with their biological parents in the state of New York. New York adjudicated the children dependent and assigned the children to the foster care of Respondent. The three nieces were approximately 5, 7, an 8 years old. New York paid Respondent $2,100 a month to provide foster care for the three children. New York pays a monthly board rate of $700 per child. Petitioner agreed to supervise Respondent's foster care on behalf of New York. On March 12, 1992, Petitioner and Respondent entered into an Agreement To Provide Foster Care For Dependent Children ("Foster Care Agreement"). Each Foster Care Agreement provided, in relevant part: We will not give the child into the care or physical custody of any other person(s) . . . without the consent of a representative of the Department. * * * We will notify the Department immediately of any change in our address, . . . living arrangements, family composition, or law enforcement involvement. * * * We will comply with all requirements for a licensed foster care home as prescribed by the Department. * * * This child is placed in our home on a temporary basis and is at all times under the supervision and control of the Department. We are fully and directly responsible to the Department for the care of the child. We will take no action to acquire legal custody or guardianship of the child. * * * The Department may remove the child from our home at any time but will, whenever possible, give us at least two weeks notice. Until May 2, 1995, Respondent provided foster care for her three nieces without incident. Respondent was a loving and caring foster parent while the children were young. The children regarded Respondent as their mother. On April 25, 1995, Petitioner increased Respondent's licensed capacity for the period May 2, 1995, through May 1, 1996, to five children. Petitioner assigned two Florida foster children to Respondent. Petitioner paid Respondent $592 a month to provide foster care for the two Florida children. Florida pays a monthly board rate of $296 for each child. Problems developed in the foster home due to overcrowding. Tiffany, one of the two Florida foster children, had an infant child. Tiffany did not maintain good hygiene for herself or her child. Tiffany neglected her child. The additional parenting responsibilities fell on Respondent. Petitioner reduced the overcrowding by removing the two Florida foster children. Petitioner removed Tiffany and her child on December 8, 1995, and removed the second foster care child as soon as the school year ended. Other problems persisted in the foster home separate and apart from the problem of overcrowding. The three nieces were growing up and were beginning to manifest problems from unresolved childhood issues. Each niece had unresolved issues that presented very difficult parenting problems. As the nieces grew older, Respondent did not have the parenting skills necessary to parent her three nieces. Deanna's unresolved issues are illustrative. Deanna weighed under four pounds at birth. The mother was a cocaine addict throughout the gestational period. There was some fetal distress related to withdrawal. Deanna was always irritable. She had a very low frustration tolerance. She had frequent tantrums in which she would throw, spit, and hit her siblings and Respondent. Deanna had been treated with various medications. They included Ritalin, Depakote, Dexedrine, and Clonidine. The other two nieces presented Respondent with similar parenting problems. They hit Respondent when they did not get their way, frequently lied, and stole items from home and school. The problems presented by the three nieces would have been difficult enough to deal with for the best of parents. However, Respondent practiced inappropriate parenting techniques. Respondent used excessive corporal punishment to discipline all of her foster children. She practiced humiliation tactics on her oldest niece. Respondent gave preferential treatment to the youngest niece. Respondent arbitrarily allowed the youngest niece to have privileges denied to the other nieces. Respondent routinely gave the youngest niece excessive amounts of money for nominal tasks. For example, Respondent paid the youngest niece $100 for two hours work around the house. Respondent manages her own money poorly. Her income is insufficient to cover her expenditures. She is evasive and vague about her finances. Respondent became depressed and withdrawn. She remained non-verbal with lengthy periods of silence. She stared at the wall. When counselors and case workers confronted Respondent regarding her depression, she became very angry and agitated. She retreated into denial and relied on adolescent responses to distance herself from those trying to help her and her nieces. Petitioner conducted a critical case review on June 28, 1996. Petitioner provided numerous intervention services for Respondent and her nieces from July through November, 1996. Petitioner provided counseling through The Harbor Mental Health Services ("Harbor"). Respondent and her three nieces attended group therapy at Harbor. In addition, each niece participated in individual counseling at Harbor. Petitioner provided an Intensive Crisis Counseling Program ("ICCP") for Respondent. ICCP is an intense in-home counseling program over six weeks. It is designed to prevent removal of foster children from the home. Petitioner extended the ICCP in Respondent's home for an additional six weeks. Petitioner provided psychological evaluations to determine if Respondent was suicidal or suffered from alcoholism. The evaluations found no evidence of either problem. Therapists attempted to assist the individual family members toward effective communication, establishing boundaries, reasonable consequences, and consistent discipline. The intervention services provided by Petitioner were unsuccessful. Respondent and her nieces persisted in their inappropriate behavior. Petitioner issued a provisional license to Respondent for the period August 2, 1996, through November 2, 1996. The license required weekly visits by a foster care counselor. Petitioner conducted a routine home visit on September 26, 1996. The situation had not improved. On October 4, 1996, Petitioner conducted another critical case review. At the critical case review, the foster care counselor learned from members of the ICCP team that Respondent planned to leave Florida to visit New York. On October 10, 1996, the foster care counselor telephoned Respondent. Respondent confirmed that she was leaving for New York on October 11, 1996. When the foster care counselor asked Respondent to provide the location of her three nieces and the identity of the respite caregiver during Respondent's absence, Respondent stated only that she was leaving the nieces with her mother. Respondent told the foster care counselor that if Petitioner wanted to see her nieces while Respondent was in New York, the foster care counselor should telephone Respondent's home and leave a message on Respondent's voice mail. Respondent's mother would check the messages each day and return the case worker's telephone call. Respondent's manner and tone were abrupt, cryptic, abrasive, and angry. The foster care counselor was unable to obtain any further information. Respondent terminated the telephone call. Respondent violated several requirements of each Foster Care Agreement. Respondent allowed the removal of each niece from her home by someone other than Petitioner's representatives. Respondent gave each foster child into the care or physical custody of another without the consent of Petitioner. Respondent failed to provide Petitioner with adequate notice of any change in the living arrangements or family composition of the foster children. Respondent's mother was not, and never has been, an authorized foster care parent or respite caregiver. Respondent did not consent to Respondent giving her nieces to the physical care and custody of Respondent's mother. Respondent did not give Petitioner the information needed for Petitioner to adequately supervise the foster children during Respondent's absence. Petitioner determined that it could no longer supervise Respondent's foster care on behalf of New York. Petitioner ascertained the location of the foster children. On October 17, 1996, Petitioner removed the nieces from the home of Respondent's mother. Petitioner returned the nieces to the appropriate authorities in New York. By letter dated, October 17, 1996, Petitioner notified Respondent of the action taken. The letter also notified Respondent that the foster care home was closed and that Respondent's license was being revoked.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty of violating material provisions of the Foster Care Agreement for each of her three nieces, failing to effectively supervise and safeguard her foster home, and revoking Respondent's license to operate a foster care home for dependent children. RECOMMENDED this 28th day of April, 1997, in Tallahassee, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 28th day of April, 1997. COPIES FURNISHED: Richard Doran General Counsel Department of Children and Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory D. Venz Agency Clerk Department of Children and Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Ralph McMurphy, Esquire District 13 Legal Office Department of Children and Families 1601 West Gulf Atlantic Highway Wildwood, Florida 34785 Patricia Genovese Qualified Representative 13140 Jessica Drive Spring Hill, Florida 34609 Yvonne B. Butler, Esquire 6341 Gainsboro Avenue Spring Hill, Florida 34609
The Issue The issue for determination is whether Petitioner's foster care license should be renewed.
Findings Of Fact At all times material hereto, Cathy Taylor (Petitioner) was issued a foster care license by the Department of Health and Rehabilitative Services (Respondent). On October 25, 1994, Petitioner signed an "Agreement to Provide Substitute Care for Dependent Children (Substitute Care Agreement) with Respondent, agreeing to abide by or with certain conditions which were considered essential for the welfare of foster children in her care. The Substitute Care Agreement provided in pertinent part: We are fully and directly responsible to the department for the care of the child. * * * 6. We will not give the child into the care or physical custody of any other person(s), including the natural parent(s), without the consent of a representative of the department. * * * 9. We will accept dependent children into our home for care only from the department and will make no plans for boarding other children or adults. * * * 11. We will notify the department immediately of any change in our address, employment, living arrangements, family composition, or law enforcement involvement. * * * We will comply with all requirements for a licensed substitute care home as prescribed by the department. * * * We will immediately report any injuries or illness of a child in our care to the department. * * * 19. We will abide by the department's discipline policy which we received during the MAPP training. On October 13, 1993, Petitioner received a certificate from Respondent for successful completion of the MAPP training. On October 25, 1994, Petitioner signed a "Discipline Policy Agreement" (Discipline Agreement). The Discipline Agreement provides in pertinent part: [T]he following disciplinary practices are FORBIDDEN on our children. FAILURE OF THE FOSTER PARENT(S) ... TO COMPLY MAY RESULT IN THE REMOVAL OF THE CHILD(REN) FOR AN INVESTI- GATION AND RESULT IN THE CLOSURE OF YOUR HOME. * * * Hitting a child with ANY object. Slapping, smacking, whipping, washing mouth out with soap, or ANY other form of physical discipline. * * * (6) Delegating authority for punishment to another child or person that is not the Foster Parent(s) ... NO OTHER CHILD, ADOLESCENT, OR ADULT IN THE HOUSEHOLD SHALL HAVE THE AUTHORITY TO DISCIPLINE. On October 11, 1995, Petitioner and Trevor Barnes signed a "Bilateral Service Agreement" (Bilateral Agreement) with Respondent, agreeing to abide by or with several conditions which were considered essential for the welfare of the children placed in the foster home. The Bilateral Agreement provides in pertinent part: 2. We are fully and directly responsible to the Department for the care of the child. * * * We will not give the child into the care or physical custody of any other person(s), including the natural parent(s), without the consent of a representative of the department.... * * * 8. We will accept dependent children into our home for care only from the Department and will make no plans for boarding other children or adults. We will notify the Department if any adult relative or family members returns to live in the home. * * * 10. We will notify the Department immediately of any change in our address, employment, living arrangements, arrest record, health status or family composition, as well as any special needs of the child (i.e. health, school problems, emotional problems). * * * We will comply with all requirements for a licensed foster home as prescribed by the Department. * * * We will provide a nurturing, supportive, family- like home environment. * * * We understand that any breach of the Agreement may result in the immediate removal of the child(ren) and revocation of the license. At that time, Trevor Barnes was Petitioner's fiance. They were married in January 1996 and have, therefore, been married for less than one year. On October 11, 1995, Petitioner and Trevor Barnes signed a Discipline Agreement. The pertinent language of the Discipline Agreement was no different from the one signed on October 25, 1994. In December 1994, minor foster child N.R. was placed in the care of Petitioner. In 1995, minor foster children V.M. and J.M., two sisters, were placed in the care of Petitioner. Petitioner was responsible for the supervision and care of the foster children. Petitioner allowed her sister, an adult, and her sister's son, who was not placed with her under foster care, to live in her home. At the time, her relatives had no other place to live. Petitioner did not inform Respondent that her relatives were living with her. Petitioner violated the Substitute Care Agreement and the Bilateral Agreement. At times, Petitioner left the children under the supervision and in the care of Mr. Barnes and her sister, thereby, violating the Substitute Care Agreement and the Bilateral Agreement. On November 23, 1995, Thanksgiving day, one of Respondent's representatives, who was transporting V.M. and J.M. to visit with their prospective adoptive family, became aware of marks on one of V.M.'s legs. Respondent's representative overheard V.M. tell J.M. to look at what "mommy" had done. Respondent's representative examined V.M.'s leg and discovered marks on V.M.'s leg. She questioned V.M., regarding the marks, and V.M. confirmed what Respondent's representative had overheard. Also, V.M. informed Respondent that Petitioner spanked both she and her sister, J.M. Respondent's representative determined that the marks were consistent with marks which would result from striking the child's leg with a metal hanger. However, she could not determine if the marks were fresh or recent or old scars because she was not trained to make such a determination. There was no other evidence as to any other observations made regarding the marks. Respondent's counselor, assigned to V.M. and J.M., reported the incident. An investigation was begun by Respondent for alleged abuse. Neither V.M. nor J.M. testified at the hearing. The investigator who conducted the investigation on the alleged abuse did not testify. Petitioner denies striking V.M. with a metal hanger or with any object. Moreover, she denies having ever inflicted corporal punishment on the children. Her method of punishing the children was taking away their privileges to do the things that they enjoyed. Further, Mr. Barnes questioned V.M., regarding the marks, who told Mr. Barnes that the natural mother inflicted the marks on V.M. Respondent was unable to provide evidence as to the last period of time that the children had visited with their natural parent(s). Petitioner did not report the marks on V.M.'s leg to Respondent. Petitioner violated the Substitute Care Agreement. Regarding spanking the children, prior to the discovery of the marks on V.M.'s leg, Respondent suspected that Petitioner was spanking the children. Respondent's counselor to V.M. and J.M. questioned Petitioner as to whether she was spanking the children. Petitioner denied any spanking and responded with her method of punishment as indicated above. But, also, Petitioner informed Respondent's counselor that perhaps Mr. Barnes or her sister had spanked the children. Petitioner presented no evidence that she had confronted both her sister and Mr. Barnes as to whether they were spanking the children and that she had instructed them not to do so, as such action was violative of the Discipline Agreement. Further, there is no evidence that Respondent questioned Petitioner's sister or Mr. Barnes. There is insufficient evidence to find that Petitioner used corporal punishment. However, the circumstances presented causes concern to the extent that Respondent was justified in questioning the suitability of Petitioner to be a foster care parent. At all times material hereto, Mr. Barnes did not live with Petitioner. He lived with Petitioner's grandmother. Petitioner never indicated to Respondent that Mr. Barnes either lived in the foster home or did not live in the foster home. Although he spent considerable time at Petitioner's home, the evidence is insufficient to show that he lived with her. Even if Mr. Barnes was living with Petitioner, Respondent became aware of it in October 1995. Respondent's counselor, who was assigned to N.R., believed that Mr. Barnes was living with Petitioner and informed him that, if he was going to live with Petitioner, she had to perform a background check on him. Respondent's counselor obtained the necessary information from Mr. Barnes to perform the background check. At that time, Respondent was aware that Petitioner and Mr. Barnes were planning to be married. Petitioner received a monthly allowance from Respondent for the care of the minor foster children. Petitioner became unemployed. Petitioner did not report her unemployment to Respondent. However, Respondent's counselor, who was assigned to V.M. and J.M., was aware of Petitioner's unemployment but assumed that Mr. Barnes was Petitioner's husband and that he was supporting the family. However, Petitioner and Mr. Barnes were not married, he was not living in Petitioner's home, and he was not supporting the family. Regardless, Petitioner violated the Substitute Care Agreement and the Bilateral Agreement. Petitioner paid too little attention to V.M. and J.M.'s hygiene and personal appearance. The hygiene was inappropriate to the point that the children's school contacted Respondent. The children frequently appeared to be unkept, and Respondent did not observe the children with any new clothes. Because of her unemployment, Petitioner had insufficient income to adequately support the minor foster children. Because of the marks on V.M.'s leg, because of V.M.'s statement to Respondent that Petitioner inflicted the injury to her leg and had spanked both she and her sister, and because Respondent had determined that Petitioner had violated its rules and regulations, Respondent removed the minor foster children from Respondent's home. Furthermore, Respondent refused to renew Petitioner's foster care license. Petitioner no longer wishes to renew her license.3 CONCLUSIONS OF LAW The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes. Petitioner has the burden of proving by a preponderance of the evidence that her foster care license should be renewed. Department of Transportation v. J. W. C. Company, 396 So.2d 778 (Fla. 1st DCA 1981); Balino v. Department of Health and Rehabilitatives, 348 So.2d 349 (Fla. 1st DCA 1977). Section 409.175(1), Florida Statutes, provides in pertinent part: 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. Rule 10M-6, Florida Administrative Code, sets forth the minimum standards by which foster parents must be evaluated. Rule 10M-6.012 provides in pertitnent part: Section 409.175, F.S., mandates that the department establish minimum standards, or rules for the types of care defined in the statute. The standards, once promulgated, have the full force and effect of law. The licensing rules specify a level of care below which programs will not be able to operate. Rule 10M-6.024 provides in pertinent part: (4) Responsibilities of the Substitute Care Parents to the Department. * * * (b) The substitute care parents are required to participate with the department in relicensing studies and in ongoing monitoring of their home, and must provide sufficient information for the department to verify compliance with all rules and regulations. * * * (g) The substitute care parents must notify the department regarding changes which affect the life and circumstances of the shelter or foster family. Rule 10M-6.025 provides in pertinent part: Length of Marriage. If married, substitute care parents should have a stabilized, legal marriage of at least one year prior to being licensed. Income. Substitute care parents must have sufficient income to assure their stability and the security of their own family without relying on board payments. The substitute family must have sufficient income to absorb four to six weeks of a foster child's care until a board payment is received. Petitioner has failed to meet her burden of proof. Petitioner has failed to meet the minimum standards of Rule 10M-6. In addition, during the course of her licensure, Petitioner violated several provisions of the Substitute Care Agreement and the Bilateral Agreement. Regardless, Petitioner has indicated that she no longer wishes to renew her foster care license.4
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health and Rehabilitative Services enter a final order denying the renewal of Cathy Taylor's foster care license. DONE AND ENTERED this 26th day of November 1996 in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 26th day of November 1996.
The Issue Whether the Petitioner is entitled to renewal of a foster care license.
Findings Of Fact Petitioner, Betty Stewart, was licensed by the Department to operate a foster care home on August 5, 1991. Thereafter, until the instant matter arose, Petitioner received a renewal of this license. On August 18, 1997, the Department notified Petitioner that her license would not be renewed. The decision was based upon Petitioner's alleged failure to meet the minimum standards for foster parenting. More specifically, the denial alleged concerns with Petitioner which included: Standard housekeeping standards. Counselors have reported that your home was not kept clean. They noted a stale odor, and observed clothes piled up and roach infestations. Lack of stability in housing. The licensing record indicates that you have had at least five different residences since you were licensed in 1991. Constant moving does not provide stability for the children placed with you. Inadequate medical care for a child in our home. The counselor for a child who had been in your home indicated that you failed to get timely dental care for a child in your home that resulted in the child needing to have a tooth extracted. Additionally it was reported that you did not follow-up with getting a dermatologist's prescription filled for this same child. Concerns that your son was dealing in illegal drugs. While your son did not live with you, he was in and out of your home and having contact with the foster children in your home, which in fact could have a potentially negative impact on them. You did admit to Laura Williams, the foster parent liaison, that you were aware that he was dealing drugs. During the time of Petitioner's licensure, she was licensed at five different locations. That is, she moved from one property to another and relicensed the new location, five times in six years. Additionally, during the time of licensure, Petitioner received a "provisional license" on four occasions. A provisional license is issued when the applicant must take additional measures to comply with all licensure requirements. On four occasions the Department worked with the Petitioner so that she would obtain licensure. For each license, Petitioner executed an agreement to provide substitute care for dependent children as prescribed by the Department. This agreement required Petitioner to comply with all rules implemented for foster care homes and specifically required Petitioner to report any illness of a child to the Department. In one instance, the Petitioner failed to seek immediate dental care for a child placed in her home. The dental problem was made known to the Department when the child was caught shoplifting Oragel, an over-the-counter product used to relieve toothache. Petitioner also did not compel a child to attend counseling sessions with a licensed therapist. Petitioner was responsible for assuring that the child be given transportation to and from such sessions. Although limited to two children by license restriction, Petitioner typically had more than two children placed in her home. Given the shortage for foster care homes, the Department routinely waived the limit and placed additional children with Petitioner even though she was ill-equipped to deal with the extra children. The Petitioner's son, who is now deceased, did not reside with Petitioner during the final licensure period. Although he resided in the community near her home, there is no evidence to support a finding that he was dealing drugs from the licensed premises.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a Final Order denying Petitioner's request for license renewal as a foster care home. DONE AND ENTERED this 13th day of March, 1998, in Tallahassee, Leon County, Florida. J. D. Parrish 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 Filed with the Clerk of the Division of Administrative Hearings this 13th day of March, 1998. COPIES FURNISHED: Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard A. Doran, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Colleen Farmsworth Assistant District Legal Counsel Department of Children and Family Services 111 South Sapodilla Avenue Suite 201 West Palm Beach, Florida 33401 Betty Stewart, pro se 812 Foresteria Drive Lake Park, Florida 33403
The Issue The parties stipulated that a concise statement of the nature of the controversy is: "Petitioner revoked Respondent's license to operate as a child-placing agency under 409.175, Fla. Stat." The issues in the case are delineated with specificity in the Administrative Complaint dated February 20, 2006. Petitioner alleges that Respondent's license is revoked for the following reasons: Failure to properly close the agency as required by F.A.C. 65C-15.035. Repeated failure to provide the Department with the agency's 2004 financial audit as required by F.A.C. 65C-15.010 and failure to provide the Department with the agency's 2005 financial audit; Multiple code violations documented on February 10, 2005 in the Child Placing Agency Inspection Sheet attached hereto and incorporated herein by reference; Multiple code violations documented on September 14, 2005 in the Child Placing Agency Inspection sheet attached hereto and incorporated herein by reference; Multiple code violations documented on October 18, 2005 in the Child Placing Agency Inspection Sheet attached hereto and incorporated herein by reference; Multiple code violations documented on January 19, 2006 in the Child Placing Agency Inspection Sheet attached hereto and incorporated herein by reference; Multiple code violations documented on February 17, 2006 in the Child Placing Agency Inspection Sheet attached hereto and incorporated herein by reference; Entering into contracts with a prospective adoptive parent for the placement and adoption of a child, taking the prospective adoptive parent's money and not placing a child in their home for adoption, and, thereafter failing to return money paid for fees, costs and expenses advanced by the prospective adoptive parent which were refundable. In short, the agency charged the prospective adoptive parent for fees, costs and expenses, and, when the agency failed to deliver on the contract it did not return the advanced money required to be refunded. This is in violation of sections 63.097 and/or 409.175, Florida Statutes, and F.A.C. 65C-15.010; Entering into contracts with a prospective adoptive parent for the placement and adoption of a child, taking the prospective adoptive parent's money, placing a child in their home for adoption, and, thereafter failing to return money advanced to pay for fees, costs and expenses associated with the adoption which were not expended. In short, the agency charged the prospective adoptive parent for fees, costs and expenses, and, when the funds were not actually needed to cover the allowable fees, costs or expenses the agency failed return the advanced money. This is in violation of sections 63.097 and/or 409.175, Florida Statutes, and F.A.C. 65C-15.010. In its response to the Administrative Complaint, Respondent, Homecoming Adoptions, Inc., has denied each of the nine listed reasons for Petitioner's decision to revoke its license.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of fact are made: Respondent is a Florida non-profit corporation, doing business in Orlando, Florida. It is co-owned by Kurt Alexander and Kendall Rigdon; both are officers of the corporation and are attorneys licensed to practice law in the State of Florida. On March 2, 2005, Petitioner issued a Certificate of License to Respondent to operate a child-placing agency. The license was to continue in force for one year from the date of issue unless renewed, withdrawn or revoked for cause. On February 15, 2006, Kurt Alexander advised Petitioner on behalf of Respondent that "we are withdrawing our application for licensure renewal at this time." During relevant times, to wit, March 2, 2005, to February 15, 2006, Respondent entered into contracts (titled "adoptive agency agreement") with individuals seeking to adopt children wherein Respondent undertook to "assist the Adoptive Parent in commencing and completing the adoption." The contracts contemplate the Adoptive Parent traveling "to the foreign country to complete the adoption process and accept physical custody of the child." Evidence was offered that Respondent assisted with adoptions which took place in Russia, China, Guatemala, El Salvador, and other countries. In each instance, the formality of the adoption was effected by individuals or agencies located in the foreign country. Although a licensed child-placing agency, Respondent had never placed a child for adoption within or without the State of Florida. Respondent became a licensed child-placing agency in an abundance of caution in the event it had to undertake a Florida adoption. Respondent never had physical custody of any child on either a temporary or permanent basis. On February 17, 2006, Kurt Alexander again advised Petitioner that Respondent "does not wish to renew or retain its license as a child-placing agency in Florida." He further advised that [I]n an abundance of caution and in compliance with 65C-15.035, Homecoming will do the following Transfer all children to the Dept. or another licensed child placement agency. There are none. Transfer responsibility for all children in temporary placement, etc. There are none. Transfer services to all other clients. Will do. On or about February 17, 2006, all active and closed files of Respondent, the licensed child-placing agency, were transferred to the law firm of Rigdon, Alexander & Rigdon, LLP. Thereafter, Kurt Alexander, in his capacity as an attorney with that firm, requested that Petitioner refrain from examining the files that had previously been the property of Respondent, as they were now law firm property and "confidential." On September 14, 2005; October 18, 2005; January 19, 2006; and February 17, 2006, Petitioner conducted annual and complaint inspections of Respondent's files. Employee personnel files lacked applications, references, local/FDLE/FBI criminal background checks, degree verifications, and other required information. Some adoption files lacked completed home studies, character references, background studies, criminal background checks, and abuse registry checks. In addition, a required financial audit was not available. Respondent's executive director was terminated in August 2005; Petitioner was not notified of his termination. No evidence was offered by Petitioner regarding the allegations of paragraphs 8 and 9 of the Administrative Complaint.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order revoking the license of Respondent, Homecoming Adoptions, Inc., effective February 20, 2006. DONE AND ENTERED this 6th day of September, 2006, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 6th day of September, 2006. COPIES FURNISHED: James E. Taylor, Esquire 126 East Jefferson Street Orlando, Florida 32801 T. Shane DeBoard, Esquire Department of Children and Family Services 400 West Robinson Street, Suite S-1114 Orlando, Florida 32801 Gregory Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John Copeland, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Luci D. Hadi, Secretary Department of Children and Family Services Building 1, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue in this case is whether Respondent's foster care license should be revoked for violating Florida Administrative Code Rules 65C-13.009 and 65C-13.010.1
Findings Of Fact The Department is the state agency responsible for licensing and monitoring foster care parents. One of its duties is to monitor foster homes and supervise the background screenings of household members when necessary. Respondent has operated a family foster home for several years. Her most recent family foster home license was issued on or about September 18, 2007. M.G., born on June 13, 2003, was a foster child in Respondent's home for at least six months prior to an Order Changing Placement, dated January 30, 2008, issued by Circuit Court Judge John Griesbaum of the Eighteenth Judicial Circuit in and for Brevard County, that removed the child from Respondent's home and placed her in the temporary custody of the Department pending placement in a new foster home. Judge Griesbaum's eight-page order concluded that Respondent had intentionally withheld information from the Department and the Children's Home Society regarding Jose Diego Fernandez, who lived at Respondent's home from April 2007 through October 2007. On September 13, 2004, Mr. Fernandez entered a plea of guilty to the possession and sale of heroin, in violation of Sections 893.03 and 893.13, Florida Statutes (2004).2 Possession of a controlled substance is a third degree felony. The sale of heroin is a second degree felony. The court withheld adjudication and placed Mr. Fernandez on probation for a period of five years. In 2006, Mr. Fernandez was arrested for possession of heroin with intent to sell and the possession of drug paraphernalia, in violation of his probation terms. Mr. Fernandez entered a plea of guilty to the charges on January 3, 2008.3 Robert Ellis is a probation officer who took charge of Mr. Fernandez' probation in August 2007. Mr. Ellis was familiar with the records regarding Mr. Fernandez' probation dating from 2004. Mr. Ellis testified that on or about April 23, 2007, Mr. Fernandez provided a change of address to the probation office. The new address given by Mr. Fernandez was 1495 Malibu Circle NE, Unit 111, Palm Bay, Florida. This is the address from which Respondent operates her licensed family foster home. Mr. Ellis testified that he had visited Mr. Fernandez at Respondent's house on several occasions, though never inside the house. Mr. Fernandez would meet Mr. Ellis in a screened patio area in front of the house. Mr. Ellis saw the inside of the house only once, when he knocked to inquire whether Mr. Fernandez was at home. Respondent answered the door and told Mr. Ellis that Mr. Fernandez would be back later in the day. Respondent affirmed to Mr. Ellis that Mr. Fernandez was still living there. Mr. Ellis testified that Mr. Fernandez moved out of Respondent's house and into a motel in October 2007. Arlene Clark is a case manager for the Children's Home Society who monitored Respondent's home from late 2005 until November 2007. Respondent had introduced Mr. Fernandez to Ms. Clark as a friend of the family, and Ms. Clark saw him around the house on several occasions. On November 7, 2007, Respondent admitted to Ms. Clark that she had lied when she said that Mr. Fernandez was not living in Respondent's home. Respondent told Ms. Clark that she was just trying to help a friend, and that there was nothing wrong with her actions because the children were not placed in any danger. The Children's Home Society is a "child-placing agency" as that term is defined in Subsection 409.175(2)(d), Florida Statutes. On July 11, 2007, Respondent entered into a "Bilateral Service Agreement" with the Children's Home Society, for the following stated purpose: The purpose of this Agreement is to identify the expectations for both foster parents and the Children's Home Society on behalf of the children and families that are served in the foster care program. This agreement reflects standards of care that are current requirements in Florida Administrative Code, which are based on statutory authority found in section 409.175, Florida Statutes. The premise of this agreement is that the Children's Home Society and foster parents must work as partners to assure safety, to provide for the physical and mental well being and to obtain permanency for each child. Under the heading "Foster Parent Responsibilities to Children's Home Society," the Bilateral Service Agreement provides, inter alia, that the foster parent is required: To notify Children's Home Society immediately of a potential change in address, living arrangements, marital status, family composition (who is in the home), employment, significant health changes or any other condition that may affect the child's well-being. To notify Children's Home Society promptly of all contacts the family or any member of the home has with police or any law enforcement agencies. Respondent did not notify the Children's Home Society that Mr. Fernandez had moved into her home. In fact, Ms. Clark's testimony established that Respondent affirmatively concealed the fact that Mr. Fernandez was living in the foster home.4
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Children and Family Services revoking Respondent's foster care license. DONE AND ENTERED this 4th day of April, 2008, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 4th day of April, 2008.
The Issue The issue in this case is whether the petitioner's request to be an adoptive or foster parent should be granted or denied.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and the entire record of this proceeding, the following findings of fact are made: The Department is the state agency responsible for licensing family foster homes pursuant to section 409.175, Florida Statutes, and for establishing minimum standards which must be met by prospective adoptive parents, pursuant to section 63.022, Florida Statutes. In September 1995, Ms. McNeal telephoned the Adoption Information Center at its advertised toll-free number, 1-800-96Adopt, to obtain information about adopting a child. She was sent a packet of materials, which included a section entitled "Adoption and the African-American Child." The Adoption Information Center also suggested she contact One Church, One Child of Florida for further information. Ms. McNeal was encouraged about her chances to adopt an African- American child when she read in the materials provided to her by the Adoption Information Center that some agencies will accept applicants for adoption who are single and who receive public assistance. Ms. McNeal is the single mother of a twelve-year-old daughter and has been on public assistance for the past two years. Ms. McNeal called One Church, One Child and told the representative that she wanted to become a foster or adoptive parent. This request was passed from One Church, One Child to Priscilla Knight, a Family Support Worker with the Department, who acts as liaison between the Department and One Church, One Child. Ms. Knight is a member of a unit within the Department responsible for recruiting and training prospective foster and adoptive parents. When she is contacted by a person who is interested in becoming a foster or adoptive parent, she invites them to an orientation meeting where more detailed information is provided. If the person is still interested, an initial visit will be made to the home of the prospective foster or adoptive parents, and, if the results of the initial visit are satisfactory, the prospective foster or adoptive parents are referred to the required Model Approach to Partnerships in Parenting ("MAPP") training. This procedure was followed in evaluating Ms. McNeal's request. The family income is one of the factors the Department looks at to evaluate the suitability of persons to become foster or adoptive parents. Ms. McNeal is not employed, and her income consists of $50.00 per month in child support for her twelve-year-old daughter and $241.00 per month in Aid to Families with Dependent Children payments. She also receives $201.00 per month in food stamps. Her monthly expenses consist of $19.00 per month for rent in government subsidized housing, $40.00 per month for electrical service, $30.00 per month for telephone service, and $300.00 per month for food, for a total of $389.00. This leaves $103.00 per month for all other expenses she and her daughter incur. Ms. McNeal's income is barely sufficient to provide for her and her daughter's stability and security, and it would not be sufficient to meet the needs of the family should she receive a foster or adoptive child.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health and Rehabilitative Services enter a final order denying the request of Tara McNeal to be accepted as a foster or adoptive parent. DONE AND ENTERED this 30th day of May 1996 in Tallahassee, Leon County, Florida. PATRICIA HART MALONO, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of May 1996.
Findings Of Fact Jimmie Ray Brown is, by occupation, normally a merchant seaman. However, pending a resolution of the situation forming the basis for this hearing, he is currently working ashore. Mr. Brown has custody and control, by court order, of two children, Linda Marie (Age 8) and James Henry (Age 5) Martin. Mr. Brown has filed for adoption of both children. A home study has been done and the natural mother of the children, who is presently in the penitentiary, has consented to the adoption. In Mr. Brown's opinion, only the home study report is holding up consummation of the adoption. No evidence to contradict this was submitted either by DHRS or the Guardian ad Litem (GAL), but so far, the petition has not been granted. Mr. Brown knows the Petitioner and requested her to live in his trailer home, located in Okaloosa County, to care for the two minor children while he is at sea. In order to do this properly, Petitioner, on January 14, 1985, applied for a license to run a foster care home. At that time, she was not living in Brown's home but, instead, was living with her sister- in-law in the house on the lot in front of Mr. Brown's trailer. When Petitioner filed her application for license as an foster parent, under the rules and regulations of DHRS, various investigative steps were taken including, among other things: a sexual abuse check, a foster home study, and a law enforcement registry records check. The abuse registry check, completed on January 31, 1985, indicated no record of abuse, neglect or exploitation was on file in the Florida Abuse Registry involving Ms. Robinson. The foster home inspection report from a sanitation standpoint was determined to be satisfactory on January 11, 1985; the physician's report on Petitioner, done on January 17, 1985, reflected that she was free from communicable diseases and in good physical condition her references were acceptable, and the home study report, entered by Mr. Thomas Goodwin on March 4, 1985, recommended that Petitioner be licensed as a foster parent by the State of Florida to care for James and Linda Martin in the trailer home furnished by Mr. Brown. All of this information was evaluated upon submission by Dorothy S. Turner, a program analyst in the program office of Respondent's Pensacola office. Her job includes the review of and recommendation on applications for licensing of foster Homes in that district. Based on the information submitted with Petitioner's application, Mrs. Turner concluded that Petitioner would be acting as a foster parent in Brown's home for two children, at least one of whom was not related to Mr. Brown. Based on this information, and because she did not have sufficient knowledge of Mr. Brown's status and living arrangements, applying the standards for foster home in DHRS Rule lOM-6.05, Mrs. Turner decided to grant a provisional license for a three-month period. Also, according to the information she had, there was no current proper petition for adoption pending at that time. Even though Mrs. Turner approved a three-month provisional license, her secretary prepared all the paperwork relative to the issuance of a standard one year license (non- provisional) and so notified the Petitioner. The file was forwarded to the District Supervisor without again being reviewed by Mrs. Turner, and the non-provisional license was issued along with all the collateral documentation. Once the non-provisional license had gone out, however, Mrs. Turner saw the completed work and was upset by the fact that the wrong license had been issued. At no time was it her intention to issue other than a three-month license. Approximately one week after the issuance of the original license, corrective action was taken and Petitioner was issued a three-month provisional license. Petitioner appealed this decision and the matter was referred to the Division of Administrative Hearings for resolution. However, prior to the DOAH hearing, a hearing was held in Circuit Court on April 30, 1985, at which, for reasons not put in evidence at this hearing, the Judge issued an order which, inter alia, directed that the children have no contact with the Petitioner and that she vacate Mr. Brown's home. Based on this order, Mrs. Turner did nothing further regarding Petitioner's license. She could have and she should have requested Petitioner return the provisional license on the basis of the court's order but did not do so. Petitioner has not made application for a new license subsequent to that time. The evidence indicates that at the time in question between January, 1985 and the time of the April 30 hearing, Petitioner was not living in Mr. Brown's trailer but, as was stated previously, in her sister-in-law's home in front of the trailer. The trailer was occupied by Mr. Brown and the two children. Petitioner would visit there and take care of the children when Mr. Brown was not present, and, during the Easter vacation in April, 1985, when the children were out of school, she did, in fact, for the one week period, live in the trailer with Mr. Brown and the children. Since a license can be issued only to a person living in the foster home, Mrs. Turner assumed that was where Petitioner was living, though this was not so. Based on the information available on the application form, and applying the standards set for evaluation of foster homes, Mrs. Turner could not have approved a one year license because Mr. Brown was living in the home with Linda Martin. Though he had filed a petition for her adoption the petition required amendment and was not, therefore, an "in process" petitioner. Because Mrs. Turner wanted additional clarification of Mr. Brown's status, she granted the three-month license. According to Mrs. Turner, her interpretation of the rule in question indicates that a non-resident can reside in the foster home only for 90 days. Since Mr. Brown was not a relative to Linda Martin, he therefore was required to vacate the property within 90 days or have a proper petition for adoption in process. In short, according to Mrs. Turner, all these questions regarding Mr. Brown's status appeared unanswered and Mr. Brown made no effort to explain or provide answers. It is clear that no one from DHRS asked him any questions either. Nonetheless, as a result of the lack of answers, Mrs. Turner was using the 90 days provisional license period to provide time for the unanswered questions to be resolved.. The decision was based entirely on the information contained in the application submitted by Ms. Robinson and by Mrs. Turner's or her subordinates' observations of the situation. Very little effort appears to have been made to clarify Mr. Brown's status or, for that matter, that of Ms. Robinson. No questions were asked of anyone whether Mr. Brown was going back to sea, and if so, when, and no attempt was made to verify whether or not Ms. Robinson was living in the house. Assumptions were made and decisions based on those assumptions which, unfortunately, were not verified or clarified. According to the GAL, Mrs. Phillips, the adoption of Linda Martin by Mr. Brown has not yet been granted. As GAL, Mrs. Phillips is required to advocate the best interests of the children for whom she works and does investigations, visits with the children and their caretakers, writes reports, and submits recommendations as to what she thinks is the best action to be taken on behalf of the children. In this case, Ms. Phillips, who is not employed by or affiliated with DHRS, talked with Mr. Brown and Petitioner on several occasions. One subject for discussion was the living arrangements of Brown and Petitioner. At the time of the first inquiry, Petitioner was living with her sister-in-law whose home as was stated previously, was located in front of Mr. Brown's trailer. In April of 1985, Petitioner told Mrs. Phillips she was living in Mr. Brown's trailer because it was convenient for taking care of the children. This is not inconsistent with Mr. Robinson's testimony that during the Spring vacation in April, 1985, for the one week period, she did live there but that at all other times, she did not live in Mr. Brown's trailer. Mrs. Phillips was familiar with Mr. Brown's seagoing activity. In their discussions, Mr. Brown indicated to her that he would be away four to six months out of the year. The remaining time, he said, he would live in the home with the children and when he was living there, Petitioner would move out. The four to six months of absence would not all be contiguous but might be split up over several trips. In the two reports submitted to the court as Guardian ad Litem on this case, Mrs. Phillips failed to address Petitioner's suitability as caretaker for these two children and no evidence was brought out at the hearing what her current opinion was. She did not indicate approval, but more significantly, neither did she indicate disapproval. As the advocate for the minor children, it seems only reasonable that if she did not approve of Petitioner, she would have said so since the best interests of the children were at stake. After Petitioner was ordered out of the Brown trailer in April, 1985, Mr. Brown made arrangements for another individual to care for the children. This individual has applied for a foster care license based on her status with the children.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent, Department of Health and Rehabilitative Services, deny Petitioner, Lydia Robinson, the one year foster care license. RECOMMENDED in Tallahassee, Florida, this 10th day of September, 1985. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of September, 1985. COPIES FURNISHED: William D. Barrow, Esq. P. O. Box 486 Crestview, Florida 32536 Linda K. Harris, Esq. District Legal Counsel 160 Governmental Center Pensacola, Florida 32576 John O. Stapleton, Esq. 514 N. Baylen Street Pensacola, Florida 32501
