The Issue Whether Respondent's foster home license should be revoked.
Findings Of Fact There is no dispute that, at all times material hereto, Ms. Azulphar had a foster home license issued by the Department. Ms. Azulphar became a foster parent in January 1999. As with all new foster parents, Ms. Azulphar was required to complete 30 hours of Model Approach to Partnership Parenting (MAPP) training. Among other things, the MAPP training involves discussions regarding duties and responsibilities of a foster parent, the sexual problems of foster care children, and what to do if a foster care child runs away. Ms. Azulphar and the Department entered into a Bilateral Service Agreement regarding foster care. Both of them agreed to abide by the terms of the Bilateral Service Agreement. The Bilateral Service Agreement provided, among other things, the following: The Department's responsibilities to the foster parents include: * * * j. Support will be shown by responding within 24 hours to telephone messages, written correspondence or any other requests the foster parents may have. * * * Commitment to the Child The decision to accept a child into the home is a major one. . . Most foster children have experienced severe emotional, sexual and/or physical abuse as well as trauma. It is not unusual for children who have been sexually abused to act out in sexual inappropriate ways. Foster parents must be aware that these children need extra monitoring, teaching and showing of appropriate affection in order to grow into healthy children. . . By accepting a child into the home, the foster parent(s) agree to the following responsibilities: * * * d. To ensure that the child has supervision appropriate to his/her age and developmental level. * * * Foster parents have responsibilities and duties to both the department [sic] and the child. Responsibilities to the department [sic] include: * * * k. To notify the Department immediately if a child runs away, is missing or does not return home, even if the foster parent knows where the child is. * * * s. To know where and with whom the child is staying and the type of supervision the child is receiving when foster parents approve an outing or overnight activity. . . Non-compliance with any of the above provisions can result in termination of this service agreement by either the foster parents or the Department. Non-compliance with any of the above [sic] provisions may also result in the department [sic] revoking the home's license to provide foster care pursuant to Chapter 120, Florida Statutes. . . . Any person living with a foster parent is subject to a background check by the Department because such person would have contact with any foster child placed with the foster parent. Such person must not have a disqualifying criminal record1 in order for the person to remain in the foster home during the licensure of the foster home. Ms. Azulphar had a tenant, Louis Bryant, who lived in an attached room to her home, which was converted from a garage. He had his own private entrance to his room. In January 2002, the Department informed Ms. Azulphar that Mr. Bryant, not only had a criminal record, but also had a disqualifying criminal drug record and that, therefore, if she wanted to keep her license, he would have to move. Ms. Azulphar informed Mr. Bryant that he had to move. Mr. Bryant moved, and Ms. Azulphar provided documentation to the Department indicating that he had moved. Ms. Azulphar described Mr. Bryant as a long-time friend and someone that she had relied upon when she first came to the United States. Mr. Bryant was also Ms. Azulphar's former supervisor. Further, even though he was a drug addict, who was skinny and dirty, smelled bad, and needed reminding to bathe, Ms. Azulphar described Mr. Bryant as the only person upon whom she could call when she had an emergency. She also indicated that Mr. Bryant was a handy man who performed repairs for her. Ms. Azulphar admitted that, as to Mr. Bryant, she was a "co-partner." She further admitted that Mr. Bryant was someone she "needs to continue what she was doing." In spite of her reliance upon Mr. Bryant as indicated, Ms. Azulphar showed a willingness to comply with the Department's requirements by requiring Mr. Bryant to move. On or about May 8, 2002, a foster child, F.D.,2 was placed with Ms. Azulphar. F.D. was 12 years of age at the time. F.D. was a special needs foster child because she had a history of being sexually abused at an early age and because F.D.'s father was deceased and her mother had voluntarily surrendered her parental rights. F.D. was the subject of disciplinary action at school. She was suspended for ten days from school for pulling a knife on another student. During the suspension, Ms. Azulphar took F.D. to work with her. F.D. left Ms. Azulphar's workplace without Ms. Azulphar's permission and knowledge. F.D. called her friends who came to Ms. Azulphar's workplace and F.D. left with them. Ms. Azulphar discovered that F.D. was dating a young man who was much older than F.D. Ms. Azulphar believed that the young man was approximately 26 years of age because he "looked" 26 years of age and F.D.'s friends were dating young men who also looked 26 years of age. Ms. Azulphar believed that the young man was among the friends that F.D. contacted to leave Ms. Azulphar's workplace. Also, during F.D.'s suspension, on the afternoon of May 16, 2002, her Guardian Ad-Litem came to Ms. Azulphar's home to visit F.D. The Guardian Ad-Litem knocked but no one answered. F.D. emerged from a neighbor's house. Ms. Azulphar had left F.D. alone at home. Ms. Azulphar had instructed F.D. to wait for the Guardian Ad-Litem at home and to not go outside of the home. Ms. Azulphar talked with the Guardian Ad-Litem on the telephone that same day. She expressed to the Guardian Ad-Litem that she wanted F.D. out of her home. That evening on May 16, 2002, F.D. became so distraught and volatile that she took a knife and threatened to harm herself. Ms. Azulphar called the Department's emergency telephone number and was told to call the Crisis Center for Mobile Children (CCMC). Ms. Azulphar telephoned CCMC, which told her how to talk to F.D. Ms. Azulphar did as she was instructed and F.D. did not harm herself. The next day, May 17, 2002, sometime in the evening after bedtime, which was around 9 p.m., F.D. slipped out of Ms. Azulphar's home. Ms. Azulphar had taken a sleeping pill and was not aware that F.D. was gone. Around 4 a.m. on May 18, 2002, Ms. Azulphar received a telephone call from F.D., who wanted Ms. Azulphar to come and get her. Ms. Azulphar did not want to drive at that time because she had taken the sleeping pill, so Ms. Azulphar asked F.D. to have an adult come to the telephone. Ms. Azulphar believed that F.D. was at a party because of the background noise that she heard, which sounded like a party. Ms. Azulphar recognized that the person who came to the telephone was not an adult, but Ms. Azulphar requested that F.D. be permitted to stay at the person's home until 6 a.m. when she (Ms. Azulphar) would pick-up F.D. F.D. did not wait for Ms. Azulphar. She returned to Ms. Azulphar's home before Ms. Azulphar could get her. Ms. Azulphar did not call the police when she discovered that F.D. was leaving her (Ms. Azulphar's) workplace with the young man who was 26 years of age and when she received the telephone call from F.D. The reason that Ms. Azulplhar did not call the police is that she believed that the police would do more harm than good to F.D., that F.D. had had enough trouble, and that F.D. was a Haitian as she was. After F.D. returned to Ms. Azulphar's home on May 18, 2002, Ms. Azulphar contacted the Guardian Ad-Litem and requested the removal of F.D. from her home. The Guardian Ad-Litem reported the incident to the court and the court ordered an investigation and the removal of F.D. from Ms. Azulphar's home. The Guardian Ad-Litem did not know the results of the court's investigation. During the time that F.D. was in Ms. Azulphar's home, Ms. Azulphar also had, in addition to her own child, T.A., two other foster children, A.A. and her sister, V.A.3 All of the other children agree that F.D. could not be trusted, was a thief, and did not tell the truth. After F.D. was removed from her home, Ms. Azulphar had another foster child placed in her home, who ran away. However, this time, Ms. Azulphar contacted the police and the Department when she discovered that the child had run away. Sometime during the first two weeks that F.D. was placed with Ms. Azulphar,4 the Department's social worker for F.D., Luis Muriel, was making arrangements with Ms. Azulphar to pick-up F.D. Ms. Azulphar requested Mr. Muriel to come to her workplace since F.D. would be there with her; however, he wanted Ms. Azulphar to leave F.D. at home alone. Ms. Azulphar reminded him that she was not to leave F.D. at home alone. However, Mr. Muriel instructed Ms. Azulphar to leave F.D. at home alone and informed Ms. Azulphar that he would be arriving at her home in 30 minutes. Ms. Azulphar contacted a male friend, who was approximately 50 years of age, for assistance and requested that he wait at her home for Mr. Muriel, who would be arriving in 30 minutes. However, she instructed her friend to wait outside in his car, not in her home, and he agreed to do so. When Mr. Muriel arrived at Ms. Azulphar's home and knocked on the door, Ms. Azulphar's friend opened the door. Ms. Azulphar's friend had not complied with her instructions and had gone into her home while F.D. was in the home. The Department had not performed a background check on Ms. Azulphar's friend. There was no reason for the Department to perform a background check on Ms. Azulphar's friend since it was never intended by Ms. Azulphar that he would have contact with the foster children placed with her. As to the incident, Ms. Azulphar had made it clear to her friend that he was not to go inside the home. On May 29, 2002, around 8 p.m., the licensing counselor for Ms. Azulphar's case, Reynaldo Gonzalez, made an unannounced visit to her home after being contacted by F.D.'s Guardian Ad-Litem regarding F.D.'s situation. By that time, F.D. had been removed from Ms. Azulphar's home. Mr. Gonzalez noticed a car parked outside of the house. He knocked on the door. The foster child A.A., who was approximately 15 years of age at the time, looked through the window and informed Mr. Gonzalez that Ms. Azulphar was not at home. Mr. Gonzalez returned around 8:30 p.m. and A.A. was still at home alone. Ms. Azulphar had left A.A. at home alone. However, Mr. Gonzalez's primary concern was not A.A.'s being at home alone. On the following day, around 6:20,5 Mr. Gonzalez returned to Ms. Azulphar's home because the Department had received anonymous information that no food was in the home. The same car was parked outside Ms. Azulphar's home, but the front of the car was parked in a different direction. Ms. Azulphar was not at home, but a relative, who was there, permitted Mr. Gonzalez to enter. Mr. Gonzalez found that there was adequate food in the home. None of the foster children were at home; they were with Ms. Azulphar. Mr. Gonzalez's testimony failed to indicate whether the car was parked along the street or in the driveway. An inference is drawn that the car was parked along the street. Ms. Azulphar voluntarily admitted to Mr. Gonzalez that Mr. Bryant was the owner of the car. She wanted Mr. Bryant to park his car outside her home to make it look as if someone were at home because her home had been burglarized when no one was at home. Further, on one of the days referred to, Mr. Bryant's car was either in disrepair or out of gas.6 According to the Department, Mr. Bryant should not have parked his car in front of Ms. Azulphar's home on the street. However, the evidence fails to demonstrate that such conduct by Mr. Bryant involved contact with the foster children. Ms. Azulphar admits that, at times, Mr. Bryant accompanied her shopping even when the foster children were with her. Ms. Azulphar also admits that Mr. Bryant has cut her grass, but only when she was at home. Ms. Azulphar testified that she obtained the approval of the Department for cutting the grass even though no Department witness recalled approving the action. Ms. Azulphar's testimony is found to be credible. Ms. Azulphar used poor judgment as it relates to Mr. Bryant. At first, Ms. Azulphar believed that, even though Mr. Bryant could not continue to be a tenant, she could continue to have Mr. Bryant to assist her with some things. She now knows that, as long as she has foster children, the Department does not want him to be around the children at any time. Ms. Azulphar believed that nothing was wrong with Mr. Bryant parking or leaving his car at her house. Now, she knows that the Department does not want him to be near her home when she has foster children. A.A. and V.A. were removed from Ms. Azulphar's home when the Department decided to revoke her foster home license. Both A.A. and V.A. want to return to Ms. Azulphar's home. Ms. Azulphar's daughter is in complete agreement with her mother being a foster parent and wants A.A. and V.A. to return.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services enter a final order dismissing the revocation action of the foster home license of Marie Claire Azulphar. DONE AND ENTERED this 30th day of April, 2003, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 30th day of April, 2003.
The Issue The issue is whether Petitioners should be licensed to operate a foster home in Marianna, Jackson County, Florida.
Findings Of Fact Respondent licensed Petitioners to operate a foster home in Respondent's District No. 9, West Palm Beach, Florida, beginning in 1995 through April 1, 2000. The Department of Health, under its Children's Medical Services Program, licensed Petitioners as medical foster parents for almost two years of that time. At all times material to this proceeding, Petitioners had five children living with them in West Palm Beach, Florida. Two boys, aged six and three, were Petitioners' adopted sons. A two-year-old boy, A.B., and his one-year-old sister, T.B. were medical foster children. C.S. was a two-year-old female foster child. In August 1999, Petitioners bought a home in Respondent's District No. 2, which includes Marianna, Jackson County, Florida. Mr. Mayes is a carpenter and intended to make repairs to the home before moving his family to North Florida. Petitioners knew their foster home license in District No. 9 was not transferable to District No. 2. Therefore, they applied for a foster home license in District No. 2. Petitioners wanted their three foster children to move with them to Mariana, Florida. Petitioners hoped to adopt C.S. and to keep A.B. and T.B. in the same placement until another family adopted them. All of the foster children had been in Petitioners' home since they were a few days old. A.B. was a very active two-year-old child. He regularly climbed out of his crib. On one occasion he climbed up on the stove and turned on the burners. He seemed to "have no fear." In the fall of 1999, Mrs. Mayes requested Respondent to provide her with behavior management assistance for A.B. Because Petitioners were planning to move out of District No. 9, Respondent decided to wait until A.B. was settled after Petitioners' move to perform the behavior management evaluation. In the meantime, Petitioners could not keep A.B. in his highchair during mealtime. They had difficulty keeping him in his crib. They bought a safety harness and attempted to use it to keep A.B. in his crib on one occasion and in his highchair on another occasion. A.B. was able to wiggle out of the harness on both occasions. Petitioners subsequently discarded the harness. They resorted to tightening the highchair's feeding tray in order to keep A.B. still long enough to feed him. Petitioners never used and never intended to use the harness to punish A.B. Petitioners usually disciplined the children by placing them in timeout for one minute per year of age. Timeout for Petitioners' foster children usually meant being held in Mrs. Mayes' lap. Mrs. Mayes admitted using the safety harness on A.B. during a telephone conversation with Respondent's medical foster care counselor in January 2000. The counselor informed Ms. Mayes that foster parents are not allowed to use a harness to restrain foster children. Prospective foster parents must participate in and complete training classes designed by Respondent. Persuasive evidence indicates that Respondent teaches prospective foster parents during this training that children should never be restrained by a harness. Petitioners have taken these training classes. If A.B. and the other children were free to go into a bedroom, they would pull everything out of the chest of drawers. They would flush objects down the toilet in the bathroom. Mr. Mayes put a hook-type latch on the door to the Petitioners' bedroom, A.B.'s bedroom, and the bathroom in the hall. The primary purpose of the door latches was to keep the children out of unsupervised areas of the home. Petitioners never used the door latches as a means of discipline. On two occasions Mrs. Mayes latched the door to A.B.'s room while he was in the room asleep. The first time she latched the door while she went to the mail box in front of her home. The other time, she latched the door while she bathed another child who had a doctor's appointment later that afternoon. On both occasions, A.B. was locked in his room for only a few minutes. Petitioners knew that they needed permission from Respondent in order to take A.B., T.B., and C.S. out of the state on vacations. On several occasions, Respondent's staff gave Petitioners permission to take the foster children to North Florida for short visits during the time that Mr. Mayes was remodeling the home. Respondent's staff approved these short visits as if they were vacations. Petitioners knew that they needed to be licensed in Respondent's District No. 2 before Respondent's staff in District No. 9 could approve the permanent transfer of the foster children. At the same time, the Respondent's staff in District No. 2 could not license Petitioners until they actually made the move with all of their furniture. Petitioners discussed their dilemma with several members of Respondent's staff in District No. 9. During these conversations, Petitioners asked Respondent if they could take the children with them and treat the time that they would be temporarily unlicensed as if it were a vacation. At least one member of Respondent's staff responded that treating the move initially as if it were a vacation was "an option that could be explored." Respondent's staff subsequently advised Petitioners that under no circumstances could the foster children move to Jackson County, temporarily or permanently, until Petitioners were properly licensed. Petitioner's never attempted to deceive Respondent; to the contrary, they were openly looking for an acceptable way to take the foster children with then when they moved. They never intended to circumvent the proper licensing process. Based on Petitioners' former experience with Respondent, they believed that treating the move as a vacation would be an appropriate way to solve what was otherwise a "catch twenty-two" situation. By letter dated March 14, 2000, Respondent's staff in District No. 2 advised Petitioners that they would receive a provisional foster home license as soon as information furnished by Petitioners and copies of Petitioners' file from the licensing unit in District No. 9 could be sent to Respondent's office in Panama City, Florida. Respondent removed the three foster children from Petitioners' home just before Petitioners moved to Jackson County on April 1, 2000. In a memorandum dated April 19, 2000, Respondent listed Petitioners' home as one of two medical foster homes in Jackson County, Florida. Despite the representation in this memorandum, Respondent issued the letter of denial on June 5, 2000.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent enter a final order denying Petitioners a foster home license. DONE AND ENTERED this 20th day of October, 2000, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 20th day of October, 2000. COPIES FURNISHED: James Mayes Gail Mayes 4561 Magnolia Road Marianna, Florida 32448 John R. Perry, Esquire Department of Children and Family Services 2639 North Monroe, Suite 252-A Tallahassee, Florida 32399-2949 Virginia A. Daire, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue to be decided in this case is whether the Petitioner's, Clemintine Lyons, foster home relicensure application should be approved.
Findings Of Fact Clemintine Lyons was first licensed as a foster home in 1988. The licensing staff had several concerns at that time. These concerns included the fact that Ms. Lyons had no prior parenting experience and was taking medication for depression. However, those concerns were addressed and Ms. Lyons was licensed. During the initial licensing period, the Department had difficulty with Ms. Lyons regarding her willingness to work cooperatively with the Department regarding the children in her care and to contact the Department before she made major decisions regarding the children in her care, such as parental visitation. For example, against the wishes of HRS and as a form of punishment for Dorinda, Ms. Lyons kept Dorinda from attending an HRS picnic for prospective adoptees to meet adoptive parents. The HRS staff was concerned about this incident because they were trying to arrange an adoption for Dorinda and the picnic was an important step in that process. Ms. Lyons was also unhappy about HRS counselors trying to have private conversations with Dorinda. Further, on one occasion, Ms. Lyons left the HRS district where she and Dorinda lived to take Dorinda to Dorinda's mother's home in another district to retrieve some clothing given to Dorinda by Ms. Lyons which had been left at the mother's home. Ms. Lyons made the trip because Dorinda was short of clothing. Ms. Lyons took Dorinda to her mother's home without notifying any HRS counselors. When Ms. Lyons was ready to leave, Dorinda refused to get in the car, so Ms. Lyons called the police to assist her in taking Dorinda back to her house. The incident was of concern because Ms. Lyons unilateral action could have potentially placed Dorinda in a dangerous situation, given the fact that the abusive parent was still in the home. In short, both incidents involving Dorinda Small demonstrated very poor judgment on the part of Ms. Lyons regarding the care and protection of a child in her care. Department personnel also testified about another incident which occurred during initial licensure of Ms. Lyons regarding two brothers, a six- year old and an eight-year old, she had just received as foster children in her home. The same day that they were brought to the home, they called a taxi while Ms. Lyons was taking a nap and had themselves driven to their aunt and uncle's home. However, the evidence regarding the elopement of these two boys was very vague and cannot be used to infer a lack of ability to care for foster children on the part of Ms. Lyons, especially since foster children come to foster care with a lot of problems including disciplinary and emotional problems. Additionally, in 1989, Ms. Lyons applied to the Department to become an adoptive parent. While going through the training and background checks, the Department, for the first time, discovered an incident involving a foster child who had been placed in Ms. Lyons' home. Clara Mitchell, a neighbor and friend of Ms. Lyons, informed the Department that she had invited Ms. Lyons and Dorinda Small, a foster child living in Ms. Lyons' home, to her home for Thanksgiving. Before eating, Ms. Lyons fixed a plate of food for Dorinda. When Dorinda noticed that tomatoes had been placed on her plate, she told Ms. Lyons that she did not like them and would not eat them although she had eaten tomatoes before. Ms. Lyons became upset and hit Dorinda across the face and told her to go home. Dorinda left Ms. Mitchell's home, but had to wait outside for Ms. Lyons because Ms. Lyons' door was locked. Ms. Lyons stayed at Mrs. Mitchell's home for about 45 minutes to an hour before going back home and letting Dorinda come inside. Once the Department learned of this incident, the Department made it very clear to Ms. Lyons that the Department's policy prohibited the use of any corporal punishment on a foster child. Ms. Lyons admitted she was aware of this policy and that she understood she was not to use corporal punishment on a foster child again. However, despite the problems with Dorinda Small and the two boys, Ms. Lyons was relicensed on the recommendation of a licensed counselor who felt that because of the desperate need for foster parents, Ms. Lyons with more training and closer supervision, would learn to grow into the role of a foster parent. Towards that end, Ms. Lyons voluntarily agreed to go through additional training known as the Model Approach to Partnerships and Parenting. The model approach program was a thirty-hour training seminar. One of the topics specifically addressed was role identification, specifically the role of a foster parent in relation to HRS, the foster child and the biological family. This training was in addition to the training that Ms. Lyons went through before her initial licensure. In addition, Ms. Lyons was sent information on several different occasions which outlined Ms. Lyons' duties and roles in interacting with HRS, the foster child and the biological family. One of the primary duties of the foster parent is to provide a caring environment for the foster child as well as consult with either HRS or the biological parent before making any major decisions regarding the foster children. It quickly became apparent that the additional training had not improved Ms. Lyons' ability as a foster parent. From July 17 through August 28, 1991, three foster children were placed in Ms. Lyons' home. The children's mother, Robin Williams, had requested foster care assistance for her six children, while Ms. Williams went through voluntary drug rehabilitation. The three oldest, Rasheen, age ten, Shykimma, age eight, and Raheem, age seven, were placed with Ms. Lyons The voluntary aspects of Ms. Williams' decision meant that she was under no court restrictions as to visitation or telephone contact and could remove her children at any time from foster care. Problems with the foster arrangement arose almost immediately. The protective services worker for the Williams', Kathy Perkins Guy, began receiving complaints about Ms. Lyons from Ms. Williams, the Williams children and counselors working with Ms. Williams in her drug treatment. One complaint by the Williams family against Ms. Lyons was that she was not permitting visitation as often as the Williams and HRS felt should be permitted. However, after complaints by Ms. Williams, the Williams' were satisfied with the frequency of visitation. On the other hand, HRS tried to show continued lack of cooperation by Ms. Lyons when Kathy Perkins Guy, the Williams' case worker, tried to arrange visitation on one particular Saturday, but Ms. Lyons told her that she had too many errands to run and it was not convenient. The inconvenience was legitimate because Ms. Lyons sister had died and she was taking care of the funeral arrangements. However, Ms. Lyons never communicated these facts to the HRS caseworker. It is important to note that Ms. Guy did not require Ms. Lyons to facilitate visitation in this instance. Ms. Guy only asked if Ms. Lyons would. Such "asking" by HRS leaves the clear impression that the licensee may decline the request without adverse impact on that person's foster license or future licensure. The incident does demonstrate poor communication by both HRS and Ms. Lyons. Additionally, Ms. Lyons also did not make arrangements for the Williams children to call their mother on a daily basis, but restricted them to one phone call two times a week. Ms. Williams deposition testimony indicated that the frequency of telephone calls was sufficient. Again, Ms. Guy had requested more frequent telephone contact. Ms. Lyons declined because getting through to the mother at the addiction center was difficult to arrange because of the center's restrictions on the mother. Again, HRS only asked for more frequent telephone contact. HRS did not require it. The clear impression to the licensee was that she could decline the request. Ms. Williams also complained that Ms. Lyons had cut her daughter Shykimma's hair without first consulting her. Such consultation with the parent is normally required by the Department. The children complained that they were not permitted to wear underwear while they slept at night and were not being allowed to sleep on pillows or use blankets. When questioned, Ms. Lyons stated that the children were placed in her home with very few clothes, and that she did not want to have to wash clothes every day. However, a foster parent is instructed to have spare clothing on hand or to be prepared to supply spare clothing. The Williams' felt they had adequate clothing but that their clothes often smelled bad the second day. As to the lack of pillows and blankets, she said that the kids did not need blankets because it was summer and the children did have sheets. She also said she did not want the children messing up her pillow shams but that they had other pillows to sleep with. The Williams' depositions demonstrated they had other pillows which they could use. The evidence also demonstrated that the children were dressed appropriately for bed since they slept in pajamas. In addition, Ms. Lyons made the children recite Bible verses as a punishment even though they were Muslim. On one occasion, Ms. Lyons had Rasheen recite a verse to Ms. Guy, which he interpreted to Ms. Guy to mean that he had to obey Ms. Lyons. Again the evidence regarding these incidents was vague and seemed to be engendered more by the Williams children's dislike of Ms. Lyons and anything she did, as well as a biological mother who was frantic over her children. Additionally, the evidence regarding the Bible verses was equivocal as to the appropriateness of such an action given the historical nature of the Muslim and Christian religions' roots in the Old Testament. Ms. Lyons also brought the children to work with her. At that time she was employed cleaning offices after hours, and she put the children to work cleaning toilets, sinks and vacuuming the floor. However, there was no convincing evidence that these activities were inappropriate in any way. On the other hand, Ms. Lyons called Rasheen "stupid." One of these name-callings escalated into an argument with Rasheen, which Ms. Lyons ended by calling a policeman friend of hers to talk to him about showing respect. Ms. Lyons did not intend this name to be abusive, but it was readily apparent that the children took the names as derogatory. The use of such references demonstrates poor judgment in caring for foster children. Ms. Lyons also had punished Shykimma for bedwetting by making her stay in her room for the rest of the day, which violates the disciplinary code for foster parents. Such punishment is a clear violation of HRS's disciplinary code for foster parents. Finally, Ms. Lyons spanked Rasheen with a flip-flop shoe for spilling rice on the floor. Again Ms. Lyons knew such discipline violated the HRS disciplinary code for foster parents. Additionally, Ms. Lyons had been warned earlier about using corporal punishment on a foster child when HRS had learned about Ms. Lyons slapping Dorinda Small. The Williams children were removed from Ms. Lyons home in August 1991. At that time, Sue Brown, supervisor of the foster care licensing unit went to Ms. Lyons' home to discuss with her the problems with the Williams' placement. During the discussion, Ms. Lyons admitted to punishing Shykimma for wetting the bed by making her stay in her room for 35 minutes. Ms. Brown pointed out that children are not to be punished for bedwetting problems, but Ms. Lyons had no response. Ms. Brown spoke to the Williams children after meeting with Ms. Lyons, and they expressed near hatred for Ms. Lyons. They said she was very demanding and that they never wanted to go back there. In this case, it is fairly apparent that HRS is tired of trying to work with Ms. Lyons as a foster parent and that in its attempt not to relicense her the Department listed every perceived "affront" of Ms. Lyons towards HRS. Most of these complaints were spurious and could not form the basis for an adverse licensure decision. However, HRS did succeed in demonstrating that Ms. Lyons committed at least three willful violations of the rules governing foster care parents. Those violations were punishment for bedwetting, name calling and two incidents of administering corporal punishment. Moreover, because these violations were willful and in disregard of the disciplinary rules of HRS of which Ms. Lyons had knowledge, Ms. Lyons is not qualified for licensure.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law it is therefore RECOMMENDED: that the Department deny Petitioner's application for relicensure as a foster home. DONE and ORDERED this 28th day of October, 1994, in Tallahassee, Florida. DIANNE CLEAVINGER 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 28th day of October, 1994. APPENDIX 93-5975 The facts contained in paragraphs 1, 4, 8 and 22, of Petitioner's Findings of Fact are adopted in substance, insofar as material. The facts contained in paragraphs 2, 3, 5, 6, 7, 10, 11, 12, 13, 15, 16, 17, 18, 19, 20 and 21 of Petitioner's Proposed Findings of Fact are subordinate. The facts contained in paragraphs 9 and 14 of Petitioner's Proposed Findings of Fact were not shown by the evidence. The facts contained in paragraphs 1, 2, 5, 6, 7, 9 and 10 of Respondent's Proposed Findings of Fact are adopted in substance, in so far as material. The facts contained in paragraphs 3, 4, 8 and 11 of Respondent's Proposed Findings of Fact are subordinate. COPIES FURNISHED: Ann Corya Curvin, Esquire Assistant District Legal Counsel Department of Health and Rehabilitative Services 160 Governmental Center Pensacola, Florida 32501 Fredrick Gant, Esquire Allbritton & Gant 322 West Cervantes Street Pensacola, Florida 32501 Robert L. Powell, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, Florida 32399-0700 Kim Tucker General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, Florida 32399-0700
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 HRS should grant the Petitioner's application a license to operate a foster care home for dependent children.
Findings Of Fact The Petitioner, Christopher Murphy, is a single male, born July 27, 1966. He wants to be a foster care parent for up to two teenagers, same sex, including those with a history of having been abused. In approximately September, 1994, the Petitioner approached the Children's Home Society (CHS), located in Orlando, Florida, to inquire about applying for licensure to operate a foster care home for dependent children. CHS is and was under contract with the Department of Health and Rehabilitative Services (HRS) to screen prospective licensees. The screening process included, among other things: interviews with the Petitioner; a home study; review of written personal references on behalf of the Petitioner; evaluation of the Petitioner's participation in the HRS-approved Model Approach to Partnerships in Parenting (MAPP) program. After conducting its training and screening of the Petitioner, CHS recommended the Petitioner for licensure "for two children, same gender, ages 12 to 18 years," and the Petitioner filed his application for licensure on or about May 3, 1995. The Petitioner and the "relief persons" he designated in his application underwent background screening, and no disqualifying information was found. However, by letter dated July 11, 1995, HRS gave notice of intent to deny the Petitioner's application for the following reasons: According to Florida Administrative Code Chapter 10M-6, it is the opinion of the Department that based on your own experience with depression, your single lifestyle and your sexual orientation that your desire to be a foster parent is not in the best inte- rest of the children in the custody of Health and Rehabilitative Services. You have indicated that you have doubts about your ability to work with HRS in seeking rehabilitation of the families with children in foster care, that you have limited patience with bureaucracy, and that you would not like to see the foster children in your care return to their parents. Professional counseling to relieve distress over your sexual orientation did not resolve that issue. These consider- ations lead HRS to believe that it would not be in the best interest of children in state custody to be placed with you in foster care. The Petitioner's Mental and Emotional Status The evidence is that the Petitioner experienced some difficulties growing up as one of ten siblings. His mother was very religious but, at the same time, appears to have been a strict disciplinarian and, at times, almost "cruel" to the children. In addition, the Petitioner tended to be a loner during his early years. He was physically weak and was susceptible to being bullied by other children. In addition, he played differently from other boys his age, preferring to spend his time reading Jane Austen and the Bronte sisters rather than playing with friends. As the Petitioner grew older, he increasingly recognized signs that he was homosexually oriented. These signs disturbed him because a homosexual orientation was contrary to his desires and to what he understood to be the morals of his family and religion. When the Petitioner went to college in the mid-1980's, he still would have been considered a "social isolate," and the combination of stresses from leaving home, living on his own at college and dealing with his sexual orientation resulted in depression requiring individual psychotherapy and medication (at first Impramine and later, in 1992, Prozac). Dealing with his mother's death in 1988 caused the depression to recur, but the Petitioner was able to recover with the help of the psychotherapy and medication. Since 1988, the Petitioner has suffered periodic bouts of mild depression. (Medication he takes for rapid heartbeat tends to cause some depression as a side effect.) However, the Petitioner's major depression is in remission, and he has been able to control the mild depression by the appropriate use of medication. The Petitioner's physicians advise him to continue on medication and seek therapy as necessary. In recent years, the Petitioner has resolved his conflicted feelings about his mother, as well as many of the conflicts he had with members of his family. The Petitioner also has made great strides to resolve his conflicted feelings about his sexual orientation. At the same time, he still rejects the values and lifestyle of the gay world and continues to accept most of the basic tenets of traditional values and lifestyle. As a result, there is no indication that the Petitioner is trying to use the foster parent program in order to make a political statement about gay rights. However, the difficulty the Petitioner will continue to face is that traditional society does not necessarily always accept him. This probably will make being a foster parent more difficult for the Petitioner. The Petitioner also has made considerable progress making and maintaining viable personal relationships. He has been able to work responsibly and well in the positions he has held with Universal Studios in Orlando and has made and maintained several positive and valuable friendships through work and elsewhere. In the words of a licensed psychologist who evaluated him in August- September, 1995, the Petitioner is "on the mend" in this regard; by this he meant that the Petitioner is making good progress in the right direction. If major depression were to recur, the Petitioner obviously would have difficulty persevering, and probably would be unable to persevere, in seeing a foster child through to the end of his or her temporary placement. But in recent years the Petitioner has been able to control depression by appropriately using his antidepressant medication, monitoring himself for symptoms of depression, and seeking appropriate therapy as needed. As long as he continues to do so, it is not anticipated that major depression will recur. HRS has licensed others with mental and emotional status similar to the Petitioner to be foster parents. It is true that there is a possibility that the stress of being a foster parent could cause the Petitioner's depression to recur. In many ways, teenage is the most difficult age bracket for foster care, and abused teenagers can present even greater difficulties. But HRS maintains control over the children to be placed with the Petitioner, and an effort could be made not to place the most difficult foster care challenges with the Petitioner, at least initially. In addition, HRS and the Petitioner could cooperate in monitoring the effects that the stress of being a foster parent have on the Petitioner. There is a good chance that the Petitioner's depression will not recur as a result of being a foster parent. The Petitioner's Parenting Experience The Petitioner has no children of his own and has no parenting experience. He grew up in a family of ten children but tended to spend much of his time apart from them. The Petitioner did some baby-sitting during his teens. But otherwise, through his college years, the Petitioner did not exhibit much inclination or desire to be around or work with children. The Petitioner changed as he reached adulthood. He now has a very strong desire to help teenage children by acting as their foster parent. In recent years, he has had the opportunity to work with families having their pictures made at the Universal Studios park in Orlando and has found that he had success interacting with the young members of those families. While he has not had much experience taking care of teenagers, he also has enjoyed spending considerable time in recent years interacting with the young children of friends and other family members. (Living in the a vacation center, many siblings and other members of his family have taken advantage of the opportunity to visit him since he moved to Orlando.) The Petitioner seems to interact well with the children in several arenas--facilitating play, sharing snacks and meals, helping with homework, going on picnics and other outings, suggesting and participating in other positive family activities. His friends' children like him, and his friends trust him with tending to their children. On the other hand, the Petitioner's experience taking care of children is limited. The Petitioner's experience as the sole caretaker responsible for children is relatively sparse and of relatively short duration. While the Petitioner has done some baby-sitting for family and friends, most of the time he has spent with children has been while their parents were around. The Petitioner has not had occasion to be responsible for children overnight or for extended periods of time (certainly not for 24 or more hours). He also has not had much other experience working with children in other settings. He has not, e.g., worked or volunteered as a counselor for church or civic youth groups or camps. Due to the nature of the Petitioner's experience with children, and his lack of experience with teenagers, it is not certain that the Petitioner will succeed as a foster parent of teenagers, or children of any age. It also is not certain that the Petitioner himself will thrive as and enjoy being a 24- hour a day foster parent. It would be desirable both for the Petitioner and for the children to be placed with him for the Petitioner to get more experience before beginning to act as a foster parent. But, on the other hand, the same probably could be said for most first-time parents. It is hard to truly know what it is like to be a parent until you become one. HRS has no non-rule policy establishing clear minimum experience standards for licensure as a foster parent. HRS has licensed others to be foster parents with as little or less parenting experience compared to the Petitioner. The licensing administrator who testified for HRS stated that HRS never has issued a provisional license to a first-time applicant and that HRS would not issue one for the purpose of evaluating the provisional licensee while the licensee gains additional parenting experience. The Petitioner's Ability to Be a "Team Player" On the "Strengths/Needs Work Sheet" for various sessions of the Petitioner's MAPP training, the Petitioner wrote: (Needs as a Result of Meeting 2) I am intolerant of those who hurt children and may have a difficult time holding back and/or editing my language in their company (during visits). I have limited patience with bureaucracy. If something is not getting done, I will do it myself regardless of who gets offended. (Needs as a Result of Meeting 5) I probably will assume I am a better parent than the child's birth parents, and I don't think I'll want the child to return to his biological family. As CHS conducts MAPP training, prospective foster parents are encouraged to use the "Strengths/Needs Work Sheet" to honestly express their deepest concerns about their ability to succeed as foster parents. Then, the trainers help the trainees deal with those concerns. CHS' MAPP trainers believed that, during the course of the training sessions, the Petitioner was able to work through his concerns and grow through the training process. He was open to the trainers' ideas and actively participated in the sessions. In their estimation, the Petitioner's comments, even when in the fifth session, should not be taken as an indication that the Petitioner would not be able to work in partnership with HRS and birth families as a team player. The licensing administrator who testified for HRS was not familiar with how CHS conducted MAPP training and was not in a position to conclude, as she did, that the Petitioner's statements on the "Strengths/Needs Work Sheet," in and of themselves, show that the Petitioner will not be able to work in partnership with HRS and birth families as a team player. The Petitioner has had no difficulty working within the bureaucracy at Universal Studios. He has had good relationships with his supervisors and has had no difficulty accepting their authority over him. Nothing about his employment experience would indicate that the Petitioner would have difficulty working in partnership with HRS and birth families as a team player. The Petitioner's Single Life Style On the "Strengths/Needs Work Sheet" for various sessions of the Petitioner's MAPP training, the Petitioner wrote: (Needs as a Result of Meeting 2) I am responsible, but do not lead a structured life. I eat when I'm hungry, sleep when I'm tired, have ice cream for breakfast . . . (Needs as a Result of Meeting 3) I may not be able to go out all night and do things as spontaneously as I do. (Needs as a Result of Meeting 5) It's just me - one on one. If I had a spouse to back me up when making rules or administer- ing discipline, things would be easier. On the other hand, the Petitioner also counted among his strengths: (Needs as a Result of Meeting 3) It's just me. . . . A foster child has only one person to adjust to. (Needs as a Result of Meeting 4) I have no other people living in my home and can devote a majority of my free time to my foster child. (Needs as a Result of Meeting 5) As a single male with no children, I will be the only one affected. These comments indicate an awareness on the Petitioner's part that his life will change if one or two foster children are placed in his home. As he recognizes, being single will make it more difficult in some ways, but somewhat easier in other ways. What can make being a single foster parent most difficult is not having the emotional and intellectual support and help of another adult in the home. A single foster parent must attempt to compensate by having adult family and friends who are willing and able to serve some of those needs. Several of the Petitioner's friends are willing and able to serve in this role for the Petitioner. All have met HRS's screening requirements. One thing a single foster parent cannot replace is the inability to demonstrate (and teach through) a successful marriage. But this inability clearly is not disqualifying. The Petitioner's Sexual Orientation HRS's notice of intent to deny the Petitioner's application mentioned the Petitioner's sexual orientation. But at final hearing HRS took the position that sexual orientation itself was not a ground for denial of the Petitioner's application. While not disqualifying in itself, being a homosexual foster parent undeniably will present special problems. First, it already has been mentioned that it can be a challenge for a homosexual to function in traditional society, and trying to function as a foster parent in traditional society surely will present its own special challenges. Along those lines, it is foreseeable, e.g., that a foster parent's homosexuality could be unacceptable to the birth family. In addition, since unmarried cohabitation by two or more adults is disqualifying, the Petitioner would be restricted to living alone. Lastly, many foster parents later adopt children placed with them, but the Petitioner will not be able to because homosexuality is disqualifying for purposes of adoption.
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 issuing the Petitioner a license to operate a foster home for up to two children, same sex, ages 12 to 18 years of age. DONE and ENTERED this 27th day of June, 1996, in Tallahassee, Florida. J. LAWRENCE JOHNSTON, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings 27th day of June, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-4150 To comply with the requirements of Section 120.59(2), Florida Statutes (1995), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1. Rejected that he applied for a license then; he initiated the screening process and preservice training at that time. Otherwise, accepted and incorporated. 2.-4. Accepted and incorporated. 5.-8. Accepted and incorporated to the extent not subordinate or unnecessary. 9. The characterization "extensive" is rejected as not proven; otherwise, accepted and incorporated. 10.-12. Accepted and incorporated. 13. The date "July 11, 1996" is rejected as contrary to the evidence. (It was 1995.) Otherwise, accepted and incorporated. 14.-16. Accepted and incorporated to the extent not subordinate or unnecessary. 17. Accepted but subordinate and unnecessary. 18.-22. Conclusions of law. Accepted and incorporated. Conclusion of law. Respondent's Proposed Findings of Fact. 1.-3. Accepted and incorporated. 4.-6. Conclusions of law. 7.-9. Accepted but subordinate and unnecessary. Rejected as contrary to the greater weight of the evidence. (The first testimony referred to Noll's knowledge of whether the Petitioner was on medication at the time of the hearing. Noll was not "pressed" for the additional testimony; he was just asked a different question.) Rejected as contrary to the evidence that Noll "failed to follow through." Also, subordinate and unnecessary, as the question for determination is whether the evidence at final hearing supported licensure. Rejected as contrary to the greater weight of the evidence. (Again, the question for determination is whether the evidence at final hearing supported licensure.) Rejected as contrary to the greater weight of the evidence that he did not present any experience in his application; he presented more at final hearing after being informed that HRS included experience in the "single lifestyle" ground for the July 11, 1995, notice of intent to deny. Again, the question for determination is whether the evidence at final hearing supported licensure. Rejected as contrary to the greater weight of the evidence; he presented more at final hearing. See 13., above. 15.-16. Generally, accepted. The Petitioner's exact statements are incorporated. Rejected as contrary to the greater weight of the evidence that the Petitioner's purpose was to "avoid working with birth families." (The gist of Noll's discussion with the Petitioner appears to have been that foster parenting older children generally makes reunification less of a concern; either reunification would not be a viable option or, if considered, the older child would have more say in the matter. Otherwise, accepted but subordinate and unnecessary. Accepted but, as previously ruled, subordinate to the ultimate issue for determination, and unnecessary. COPIES FURNISHED: Ann E. Colby, Esquire 305 Elkhorn Court Winter Park, Florida 32792 Laurie A. Lashomb, Esquire Department of Health and Rehabilitative Services 400 West Robinson Street, Suite S-827 Orlando, Florida 32801 Gregory D. Venz Acting Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-1600 Richard Doran General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-1600
The Issue Whether the Petitioners' application for a license to provide foster home care for dependent children should be approved or denied.
Findings Of Fact Petitioners applied for licensure from Respondent as a Family Foster Home in 1995; the application was subsequently amended to a Therapeutic Foster Home. Respondent began the preparation of the Family Portfolio and Petitioners began Pre-Service Training. Petitioners attended and completed the required 21 hours of pre-service training for prospective foster family parents, called Group Preparation and Selection, GPS-MAPP. on June 12, 1995. Petitioner Carmen Delvalle also attended and completed a 40 hour pre- service training for prospective medical foster parents. During this time, in anticipation of being licensed, Petitioners made modifications to their home and purchased furniture that would accommodate the placement of foster children. Respondent, in preparing the Petitioners' Family Portfolio, determined that Petitioners had previously been licensed in Westchester County, New York, as foster parents from May 1987 through December 1988. The inquiry with the county Foster Home Resource Unit revealed that Petitioners' home was closed by mutual decision between Petitioners and the county Department of Social Services. The Department would not recommend that Petitioners be relicensed based on the appearance that Mrs. Delvalle was overwhelmed by the needs of foster children, which resulted in frequent relocation of children placed in her care, and appeared to be unable to understand and cope with the needs of typical foster children. Petitioner Carmen Delvalle testified that Petitioners' termination as foster parents in New York was not due to being overwhelmed by the needs of the children. Rather, it was due to the fact that Petitioners were housed in a walk-up apartment and their neighbors were constantly complaining about the noise the children would make. In addition, they received very little support and training from the Department of Social Services, and the Department was constantly placing 5 and 6 children in her home when they were only licensed to care for three children at a time. Petitioners now feel that they are better prepared to serve as foster parents because they both love children; their own children are now adults and they can give a lot of time and attention to any foster children placed in their home; they are better qualified and trained now, and can deal with the special demands of caring for foster children and medically challenged foster children. The Respondent's Senior Program Analyst prepared the Family Portfolio for the Petitioners, which included two in-home interviews. She was also Petitioners' MAPP trainer. Her evaluation of the Petitioners' application was that they did not meet the standards of Respondent, as set forth in Chapter 10M- 6, Florida Administrative Code, because of her concern that Petitioners could not cope with the stresses of being a foster parent seven days a week, twenty- four hours a day. Respondent's Licensing Administrator Marlene Richmond reviewed the completed Family Portfolio pertaining to the Petitioners and called for a staffing review of their file. She also interviewed Petitioner and determined that, although sincere, Petitioners did not exhibit an understanding of the training they received. They also could not articulate how they would respond to the pressures they would be under once a foster child was placed in their home. In her opinion, Petitioners did not meet the standards. Petitioners are caring, sincere people who wish to offer themselves and their home for the care of children in need of foster care. Petitioners' house meets the physical standards set out by Respondent, and the Petitioners have completed the required pre-service training. However, Petitioners have not articulated an understanding or exhibited the capability to take on the "role" to be successful foster parents. Petitioners do not meet the standards for licensure as foster home or a medical foster home.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Respondent enter a final order DENYING Petitioners' application for licensure as a foster home for dependent children. DONE and ENTERED this 31st day of May, 1996, in Tallahassee, Florida. DANIEL M. KILBRIDE, 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 31st day of May, 1996. COPIES FURNISHED: Antonio Delvalle pro se Carmen Delvalle pro se 7933 Toler Court Orlando, Florida 32822 Laurie A. Lashomb, Esquire Department of Health and Rehabilitative Services 400 West Robinson Street, Suite S-827 Orlando, Florida 32801 Gregory D. Venz, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard Doran, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue in this case is whether Petitioner's foster home license should be renewed.
Findings Of Fact From August 24, 2004, and throughout the period material to this proceeding, Petitioner Jannifer Thompson ("Thompson") and her husband, Dalkeith, held a license that authorized them to operate a family foster home under the supervision——and within the regulatory jurisdiction——of Respondent Department of Children and Family Services ("DCF"). Like all licensed foster parents, Thompson and her husband had entered into a written contract with DCF known as the "Bilateral Service Agreement" ("Agreement"), most recently as of April 30, 2006. This Agreement, by its terms, "reflect[ed] standards of care that are current requirements in Florida [law]." On September 14, 2006, a counselor named Elboney Ojobor, who was employed by a private agency to whom DCF had delegated various responsibilities pursuant to contract, made a routine quarterly visit to Thompson's home. Ms. Ojobor was covering for a colleague (Rondalyn Woulard) who was on maternity leave; she had not met Thompson previously. While interviewing Thompson, Ms. Ojobor learned that Thompson was the only adult living in the home at the time, and that Thompson was getting divorced from Dalkeith. Ms. Ojobor understood this to mean that Mr. Thompson had moved out of the home permanently. In fact, Mr. Thompson was away from the home then not because he had moved to another residence ahead of a divorce, but because his job with a shipping company had required him to be out of town for an extended period. Nevertheless, the couple was estranged; Mr. Thompson would leave the marital home for good in the middle of October 2006. Ms. Ojobor's visit was not the first occasion on which Thompson had notified DCF (through its private-sector agent) that her marriage to Dalkeith was in trouble. During an earlier home visit (probably around June 2006, during the quarter immediately preceding Ms. Ojobor's visit in September), Thompson had told her regular counselor, Ms. Woulard, that she might divorce Dalkeith. Ms. Ojobor was not aware of this previous communication, however, and thus she reported the apparent change in circumstances (Mr. Thompson's absence) to her supervisor. The upshot was that on September 15, 2006, Ms. Ojobor called Thompson to inform her that, if she were to continue operating the foster home as a single parent, she would need to obtain a new license. As it happened, whatever steps Thompson took thereafter to become re-licensed came quickly to naught because, in early October 2006, DCF received an allegation that children in Ms. Thompson's home were being physically abused. Having brought up the abuse report, the undersigned believes it necessary here to interrupt the narrative flow of the findings, to call attention to some important points. The most serious charge against Thompson in this case is that she used "excessive" corporal punishment on foster children in her care. The accusation is not that Thompson was found by some other agency or investigator to have abused a foster child or children. The distinction is critical. Because DCF has alleged that Thompson used corporal punishment excessively, it is not sufficient (or even necessary) for DCF to prove that someone else, after investigating allegations of abuse, concluded that Thompson had inflicted some sort of physical injury on a foster child. Rather, DCF must prove that Thompson, in fact, actually used corporal punishment, which is a different fact. Indeed, that someone else found Thompson guilty of physical abuse is not especially probative, in this de novo proceeding, of the salient factual dispute, namely whether Thompson used corporal punishment on foster children.2 Against this backdrop, the undersigned finds that, on October 9, 2006, DCF referred a report of abuse concerning Thompson to the local Child Protective Team ("CPT"). DCF requested that the CPT examine the allegedly abused foster child and make an assessment of the situation. One member of the CPT who took part in this particular assessment was Karl Dorelien. Though not a medical provider, Mr. Dorelien was present for the medical examination of the child in question, whose name is T. P. The examination was performed by an advanced registered nurse practitioner ("ARNP"). Mr. Dorelien testified at hearing. The ARNP did not. At the time of the examination, Mr. Dorelien saw some bruising on T. P.'s forearm. T. P. told Mr. Dorelien and the ARNP that she had been struck by a belt. The CPT did not independently investigate T. P.'s statement. Mr. Dorelien and the ARNP accepted at face value T. P.'s statement about the cause of her injury. The ARNP found that T. P.'s wound was "not accidental." (Mr. Dorelien specifically denied having the expertise to ascertain whether a bruise was caused accidentally or intentionally. There is, it should be added, no persuasive evidence that the ARNP possesses such expertise, either.) Based on the medical examination, the CPT concluded that Thompson had struck T. P. with a belt. (It is not clear how the CPT determined that Thompson——as opposed to someone else——caused T. P.'s injury.3) The evidence shows, in short, that the CPT found Thompson had caused bodily injury to T. P., a foster child then in her care, whom (the CPT determined) Thompson had hit with a belt. There is, however, no persuasive evidence upon which the undersigned independently can find that Thompson actually hit T. P. with a belt (or otherwise). How can this be? First, no one claiming to have personal knowledge of the matter testified at hearing that Thompson had struck T. P. with a belt. (T. P. was not called as a witness.) Thompson denied having perpetrated the alleged misdeed. Second, although there is competent and credible evidence (Mr. Dorelien's testimony) that T. P.'s forearm was bruised, the only evidence as to the cause of this injury was hearsay: (1) T. P.'s statements to the CPT revealing that she had been struck with a belt and (2) the ARNP's opinion (which Mr. Dorelien repeated at hearing) that the wound was not accidental. This uncorroborated hearsay is not a legally sufficient basis for any finding of fact, and even if it were, the undersigned, as the trier of fact, would give it too little weight to support a finding.4 Finally, even if there were sufficient evidence in the record to support a finding that T. P. had been struck with a belt (and there isn't), there yet would be nothing but Mr. Dorelien's ambiguous testimony concerning the substance of T. P.'s out-of-court statement, coupled with inference or speculation (based on uncorroborated hearsay), tending to establish that Thompson did the striking. Again, such "proof" is neither legally sufficient nor, in any event, logically persuasive enough to support a finding that Thompson was at fault for the child's injury. DCF alleges that, in addition to striking T. P. with a belt (which allegation was not proved, as just found), Thompson also spanked J. D. F. and his brother, O. F. Both of these boys, respectively aged 8 and 7 years at the time of hearing, testified against their former foster mother. Each claimed that Thompson had spanked him with a belt. As witnesses, however, the boys did not inspire confidence in the truth of their accounts. Each gave testimony that was confusing, sometimes inconsistent, and lacking in precision. Neither one seemed distinctly to remember the important events at issue, much less any of the details surrounding them, causing the undersigned to wonder, at times, whether the boys were independently recalling the underlying events or, rather, testifying from the memory of what someone might have told them was alleged to have occurred. Doubtless many of these boys' shortcomings as witnesses stemmed from their youth and immaturity. Even so, all witnesses, regardless of age and experience, must be measured according to the same standards of credibility; the bar can be neither lowered nor raised to conform to a particular witness's capacity for giving testimony, for doing so would put a thumb on the scales of justice. At bottom, the accounts of J. D. F. and O. F., though not inherently incredible, nevertheless lacked sufficient indicia of reliability to produce in the undersigned's mind a firm belief or conviction that Thompson had spanked them with a belt. The undersigned hesitates to say more than that such is a possibility. Against the shaky testimonies of the boys was offered the decidedly stronger testimony of their sister, Sancia Jeantil, who swore that while she was living in Thompson's home (which admittedly was not at all times her brothers were there), she never saw Thompson spank either J. D. F. or O. F. She further testified that neither of her siblings had ever complained to her about being beaten. The undersigned has accorded considerable weight to Ms. Jeantil's testimony, because it seems unlikely that she would prevaricate to protect Thompson at her brothers' expense. Although Ms. Jeantil was not always present in the home, her testimony, which the undersigned accepts, is persuasive proof of the pertinent negative proposition, i.e. that Thompson did not use corporal punishment on the boys. Thompson herself testified at hearing and denied having used corporal punishment on J. D. F., O. F., or any other foster child. Mr. Thompson, too, testified that corporal punishment had not been used on any of the foster children in their home. Thompson's own child, J. T., said the same. None of these witnesses conclusively proved the negative of DCF's allegation regarding corporal punishment, but then again it was not Thompson's burden to disprove the charge. What these witnesses did do, effectively, was establish a credible, if simple, theory of innocence: Thompson never beat the foster children in her care. The undersigned has determined, as a matter of ultimate fact, that the evidence as a whole fails to produce in the mind of the trier of fact a firm belief or conviction, without hesitancy, that Thompson used corporal punishment on any of the foster children under her care. Aside from the allegations regarding corporal punishment, DCF has charged Thompson with the lesser offense of failing immediately to notify DCF that her husband had moved out of the home. The evidence shows, however, that Thompson satisfied her duty to notify DCF concerning changes that might affect the life and circumstances of the foster children residing in her home. To recap, briefly, the material facts, Thompson informed DCF's agent, Ms. Woulard, of the possibility that she and Dalkeith might divorce; thus, DCF was on actual notice of a potential change in Thompson's marital status. Thompson likely gave DCF this advance warning in June 2006; in any case, she spoke up long before Dalkeith established a new residence and before the divorce proceeding commenced. There is no clear proof that the couple's situation had changed materially as of September 14, 2006, when Mr. Ojobor visited the home. Without question, Mr. Thompson was away at that time——but he worked for a shipping company and thus extended absences were part of his routine. Having all the evidence of record in view, the undersigned is not convinced that Mr. Thompson had "moved out" of the home as of mid-September 2006 in the sense of having permanently relocated from that residence, which is what DCF maintains. While there is some evidence that such was the case, there is also persuasive evidence that Mr. Thompson did not leave the home for good until October 2006——evidence sufficient to preclude the undersigned from finding, without hesitancy, that DCF's allegation is accurate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that DCF enter a final order approving the renewal of Thompson's foster home license. DONE AND ENTERED this 15th day of November, 2007, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 15th day of November, 2007.
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 issues in these consolidated cases are whether Respondents' foster home license should be revoked as stated in an Amended Administrative Complaint dated October 6, 1999, and whether Mrs. Sampson's request to adopt a child, A.H., should be denied as explained in a letter dated October 6, 1999.
Findings Of Fact The Department of Children and Family Services is the state agency responsible for licensing and regulating foster homes. It also is responsible for receiving and approving applications for adoptions. John Henry and Annette Sampson live in Plant City, Florida. They have been married approximately 24 years. They have adult children and three adopted children, one of whom is their biological grandson. The other two children, both boys, were foster children whom they raised from infancy (R.S., age 10; and D.S., age 9). Mrs. Sampson, a licensed practical nurse (LPN), met R.S. when she cared for him in the hospital following his birth. He had many medical problems and his biological mother was unable to care for him. Mrs. Sampson bonded with the child and sought and received a special foster home license so she and her husband could take him home. R.S. thrived in the care of the Sampsons despite his poor prognosis. The Sampsons were thus licensed as a foster home in 1990, and over an 8-year period cared for 14 foster children, most of whom had complex medical problems. A.H. was placed with the Sampsons when he was approximately one-month old in 1993. He had been exposed to drugs during gestation and had complicated medical problems at birth. He also thrived in the Sampson's home despite poor prognosis for survival. He bonded with the family and considers the Sampsons his parents and the three other adopted children as his brothers. By November 1997, when the children were removed from the Sampson home, Mrs. Sampson had already requested permission to adopt A.H. and was working with the agency on the details of a subsidy for the child. Also living with the Sampsons in November 1997 were two female foster children: A., who was 7 years old and was profoundly mentally handicapped; and M., who was 6 years old, partially paralyzed, and mentally handicapped. The two girls were placed with the Sampsons in February and May 1997; both had been previously subjected to horrific abuse and both began to respond positively, physically and mentally, to the loving care of the Sampsons. The events which led to removal of children from the Sampson home commenced in September 1997. Because of her mental condition M. was considered a danger to herself. She had poor impulse control and ate or chewed clothing, bedding, feces, and anything she could get in her mouth. A Childrens Medical Services (CMS) physician had prescribed restraints for her and Mrs. Sampson used then sparingly. Generally she would restrain M. when she put her to bed at night and would remove the restraints when the child fell asleep. One evening in September 1997, Mrs. Sampson put M. to bed with her restraints. Shortly later Mrs. Sampson went to work on her part-time nursing shift and forgot to tell Mr. Sampson to remove the restraints. The next morning when she returned home Mrs. Sampson found the child still restrained by her wrist, with some swelling. When she took M. to school Mrs. Sampson pointed out the swelling to the school nurse and explained what happened. Because of their routine practice to notify a caseworker of any marks on a foster child, the nurse or M's teacher called the agency. Neither the nurse nor the teacher was concerned about abuse in this case. As a result of the report an abuse investigation commenced and Jim Cunningham, a Child Protection Investigator, took M. to the Child Protection Team (CPT) physician for an examination. Dr. Laleh Bahar-Posey was the CPT medical director. In her medical examination Dr. Posey noted circular marks on the child's left forearm and both ankles, consistent with ligature and consistent with her being tied to the bed. In her testimony at hearing Dr. Posey clarified that she had confirmed during the medical examination that the leg marks were caused by M.'s braces and that Mrs. Sampson had only restrained one wrist. Because the report remained unchanged, however, the agency persisted until the hearing in its assertion that M. had been bound by her arms and legs overnight. Dr. Posey also noted in her examination of M. that the child had a mark on her left forearm that appeared to be an iron burn. Because of the position of the point of the burn, facing the outside of the arm, and because of the child's partially immobile right hand and arm, Dr. Posey and the CPT social worker surmised that the burn was not accidental nor self-inflicted. Mrs. Sampson's explaination of the burn was that her daughter-in-law had been ironing in another room of the home and briefly left the iron unattended. Mrs. Sampson was summoned by a yell from M. Mrs. Sampson immediately saw the child's burn and treated it with salve and a bandage. The next day Ms. Sampson told the school nurse about the burn and asked whether she should take M. to the doctor. The nurse examined the burn and determined that it was minor, was not even blistered, and was barely visible. She did not recommend that Mrs. Sampson take M. to the doctor and the nurse understood that M. could have accidentally caused the burn herself. Although she cannot use her right hand and arm, M. swings the arm as she walks. She is very clumsy and her gait is unsteady. The burn mark according to the weight of credible testimony is wholly consistent with M.'s knocking the iron against her left forearm while flaying her right arm around the ironing board. The pink mark in the healing stage was much more evident on M.'s dark skin than it would have been on a Caucasian child. The final incident leading to removal of the children from the Sampson home was a report to the agency on or about November 17, 1997, that M. had broken her arm about 3 weeks earlier. The Child Protective Investigator obtained the medical records from South Florida Baptist Hospital in Plant City and concluded that because the break was identified as a spinal fracture, requiring a twisting motion, the injury was an "inflicted injury." The agency immediately made plans to remove all children from the Sampson home and took the records to Dr. Posey for review. Dr. Posey's notes after her review of the medical records conclude that the injury was not consistent with Mrs. Sampson's alleged history that the child fell while briefly unattended in the bathroom. Dr. Posey's notes state her "grave concerns" about the safety of this child and other children in the home. Agency staff, including the Child Protection Investigator, a supervisor, and foster care and adoption counsellors convened at the Sampson home on the evening of November 17, 1987. Mrs. Sampson was not home, and Mr. Sampson was home with the three adopted children and the three foster children (A.H., A., and M.). The staff removed the children from the home and placed them in other foster homes or shelter homes. Several things concerned the staff when they were in the process of removing the children. Lesa Simms, the adoption supervisor, saw A.'s braids tied to her bed and Mr. Sampson quickly loosened them. When asked where the girls' clothes and medicine were stored Mr. Sampson said that he took care of the boys and did not know much about the girls. Several staff noticed that prescription bottles and loose pills were left in the kitchen, some on the counter, others in a cabinet within reach of some of the children. One of the staff had to call the pharmacy to find out which medications went with each child. After the children were removed from the Sampson home Ms. Sampson's application to adopt A.H. was reviewed by the agency's Adoption Review Committee which recommended the application be denied. Although the committee members were aware of Mrs. Sampson's prior glowing record as an adoptive and foster parent, the series of three injuries to M. was too serious to ignore. The agency also initiated revocation of the Sampson's foster home license. The Amended Administrative Complaint in Case No. 98- 1928 states these bases for the intended revocation: A foster child in your care was bound by her arms and legs overnight resulting in ligature marks on the child. The foster mother, Ms. Sampson, stated she forgot to remove the restraints. Section 409.175(8)(b)(1), Florida Statutes. A foster child in your care received a spiral fracture on her arm when she was in the bathtub. Medical authority states the injury inflicted was inconsistent with the explanation given by you during the Child Protection Investigation. Section 409.175(8)(b)1, Florida Statutes. A foster child in your care received an iron burn on her arm. The child was seen by a physician who stated the injury was not consistent with the account given by you. Her conclusion was that the iron burn appeared to be consistent with an inflicted injury. Section 409.175(8)(b)1, Florida Statutes. During a visit to your home by department staff, medicine bottles with their safety lids removed were not stored in an appropriate place out of the reach of the children. The bottles were filled with various drugs, such as anti-psychotics, amphetamines, and other drugs that were within reach of most of the foster children in the home. There were loose pills in the cabinet above the counter, along with hot pepper flakes also within reach of most of the foster children in the home. You were out of town according to your husband, who stated he did not know anything about the girl's issues, Section 409.1275(8)(b)2, Florida Statutes, and 65C-13.010(1)(b)7.d, Florida Administrative Code. A staff individual observed Mr. Sampson untying a child's hair from the crib, Section 409.175(8)(b)(2), Florida Statutes and Rule 65C-010(1)(b)5.e, Florida Administrative Code. The October 6, 1999, letter informing Mrs. Sampson of the adoption request denial states: The Administrative Rule 65C-16 currently in effect provides that "if allegations of abuse/neglect or abandonment have been verified, the application must be rejected and referral to the Adoption Applicant Review Committee is not required." Despite this provision, the Adoptive Applicant Review Committee and the district administrator reviewed your application. It was decided that your application would be rejected based upon the facts involved in the Florida Protective Services System reports #97-103474 and #1997-126233, not just the disposition decision of these two reports. Abuse report 1997-103474 had a finding of "some indicators" of burns/scalds with regard to the burn on M.'s left arm. Abuse report 1997-126233 was "verified" for bone fracture/neglect and inadequate supervision and conditions hazardous to a child. The evidence in this protracted consolidated proceeding does not support the agency's intended actions. There is no evidence that Mrs. Sampson abused M. or any other child in her care. The ligature marks, the burn, and the broken arm were each explained by competent experts as accidents which would not be unusual in any normal family and which were entirely consistent with the history offered by Mrs. Sampson. The injuries were certainly consistent with M.'s complex mental and physical condition. In a child under twelve months of age and not walking, a spiral fracture would be an immediate cause for concern. But in an older child such as M., a spiral fracture would occur in a fall when the limb is immobilized on impact and the body twists around it. A deliberate twisting by Mrs. Sampson or someone else would have left such marks on the child's arm that the physicians who saw her in the emergency room immediately after the accident would have been alerted. Instead, no physician who treated M. ever suspected abuse. Dr. Posey did not see her, but instead only viewed the X-rays and the conclusion by Dr. Del Toro, the emergency room radiologist, that the fracture was a "spiral fracture." There is no evidence of false or "inconsistent" histories of the injury reported by Mrs. Sampson. She did not see the child fall; she was bathing M. and left the bathroom briefly; when she returned, the child was on the floor. This account is still consistent with her account to the psychologist, Dr. Whyte, that when she attempted to pick up the child they both fell. In hearing, and in her interview with Dr. Whyte, Dr. Posey receded from her former opinion that the fracture had to be non-accidental. Only one agency staff person observed Mr. Sampson's "untying" A.'s braids from her bed although approximately six individuals, including a law enforcement officer, were at the Sampsons' home gathering the children. The action as described by Ms. Simms was very quick. It might have been as benign as untangling the child's hair which was caught in the bed. Mr. Sampson unequivocaly denies that the child's hair was tied; other agency witnesses testified that they followed Ms. Simms and saw M. sitting or standing in her crib, not lying down with her hair tied. The medications were improperly stored but were inaccessible to most of the children. According to agency witnesses this violation would not have been a basis for denial of an adoption or license revocation. No one, including agency workers who had visited the home many times, announced or unannounced, had ever had a problem with storage of medications at the Sampson home. In fact, no one, not the psychologist, not adoption workers, teachers, co-workers, licensing staff nor physicians who had observed the Sampson children in the home, at school, or in the community, ever saw anything other than loving, caring, conscientious parenting by the Sampsons. Mrs. Sampson could be aggressive and demanding, but always as an advocate for the children. She made requests for special equipment, like a Geri-chair, that would help the children become more self-reliant. She minimized the use of physical restraints and she consulted with the physicians on reducing medications that she felt were keeping M. over-sedated. She bought lovely clothes and cooked special foods for the children and by all reported observations the children, adopted and foster children, thrived and were happy. The dependency proceeding was resolved with a directed verdict against the agency and the Sampsons' adopted children were returned to their home. A.H. now needs to be returned home as well and Mrs. Sampson's adoption request approved. The allegations which were the basis for the Adoption Application Review Committee's recommendation and the District Administrator's acceptance were not proven and there is a preponderance of affirmative proof that the adoption request should be granted in A.H.'s best interests. A.H. bonded with the Sampsons and their children and the passage of time since his removal from the home has not broken that bond. He still begs to go home to them. The psychologist, Dr. Whyte, who evaluated the Sampsons at the agency's referral, and the adoptions caseworker for A.H. both urge that it is in his best interests to be adopted by Mrs. Sampson. A.H.'s current foster mother, who is herself willing to adopt A.H., testified that A.H. should be adopted by the Sampsons as he loves them and considers them his parents. As established with testimony of the agency's own witnesses, evidence of the accidental, not deliberate, injuries to M., coupled with the one-time improper storage of medications, would not support a decision to revoke the foster home license. Instead, in these circumstances foster parents would be asked to sign a letter of compliance. The foster home license expired in 1998, after the children were removed from the home. In April 1998 Dr. Whyte recommended that the girls, with their complex medical problems and extraordinary care-taking demands, be placed in a therapeutic home where 24-hour care could be provided without the conflicting demands of other obligations. Circumstances in the Sampson household have changed since 1997 and 1998 when Mr. Sampson moved out, and the record does not clearly reflect whether he currently resides in the home. The adopted children have grown older and one child may be leaving to go to college. The Sampsons have also grown older. They should be permitted to reapply for a license based on the prior expiration of their license and not based on a revocation action which is not supported in this proceeding.
Recommendation Based on the foregoing it is RECOMMENDED that the agency enter its final order: returning A.H. immediately to Mrs. Sampson; approving her application to adopt A.H.; and granting the Sampsons leave to apply for foster home license without any prejudice of the allegations stated in the agency's October 6, 1999, revocation letter. DONE AND ENTERED this 11th day of August, 2000, in Tallahassee, Leon County, Florida. MARY 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 11th day of August, 2000.
