The Issue The issue for determination is whether Petitioner's foster parent application for adoption of the minor child, S. J., should be granted.
Findings Of Fact S.J. was abandoned at birth. Moses and Juanita Pitchford served as foster parents of the child from the age of two days until March 30, 1998, when the child was over two years old. S.J. was observed by several of Respondent's employees as not behaving like other children her age. She had a flat effect, not laughing, playing or verbalizing as other children who visited Respondent's offices did. Subsequent evaluations of the child established that S.J. was developmentally delayed in speech, physical, and cognitive skills. S.J. was then referred to Easter Seals for services to assist her in the speech, physical, and cognitive skills areas. The Pitchfords' care had never been criticized in any of the Respondent's home evaluation forms completed by Gwen Tennant, the home care counselor employed by Respondent. Only when Juanita Pitchford applied to adopt S.J. did Tennant assert that Juanita Pitchford was not providing adequate care for the child. Tennant's concern was based on the fact that S.J. was not receiving the maximum exposure to an Easter Seals program for which she had qualified. The Pitchfords were never formally informed of this or any other deficiency. The evidence establishes that the Pitchfords presented S.J. at the program four days per week out of the total five days for which she was eligible. Following Respondent's denial by letter dated April 13, 1998, of Petitioner's foster parent application for adoption, Respondent has continued to place foster children, including infants, in the Pitchford home. The rights of the child's biological parents were terminated by court order dated June 17, 1997, due to their abandonment of the child. The court noted in its order that: Testimony adduced revealed that the child can and has formed a significant relationship with the parental substitute as has been established in her current foster care placement. The foster parents are the only parents she has ever known. The court's order also stated: [T]he child is currently being given excellent care by foster parents who love and care for [S.J.], and consider [S.J.] to be their child. On March 30, 1998, S.J. was removed to the home of Betty Allen, another foster parent. Allen is not married, cares for six other foster children under the age of six years, and works at a full-time job outside the home. Consequently, S.J. is delivered to day care on a regular basis for five days each week. During four of those days, she is later taken to the Easter Seals program by day care personnel for four and one-half hours. Allen cares for the foster children in her home from approximately 5:30 p.m. until 8:30 p.m. in the evening. She drops the children at day care before 8:00 a.m. each day. In contrast, Petitioner is not employed outside the home, remains there throughout the day, and is able to provide intense daily interaction with S.J.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered approving the application of Petitioner. DONE AND ENTERED this 22nd day of September, 1998, in Tallahassee, Leon County, Florida. DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of September, 1998. COPIES FURNISHED: Roger L. D. Williams, Esquire Department of Children and Family Services Post Office Box 2417 Jacksonville, Florida 32231-0083 James C. Cumbie, Esquire One Independent Drive, Suite 3204 Jacksonville, Florida 32202 Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John S. Slye, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue in this case is whether Respondent should deny Petitioners' application for a license to provide foster home care for dependent children pursuant to Section 409.175, Florida Statutes (1999). (All statutory references are to Florida Statutes (1999) unless otherwise stated.)
Findings Of Fact Respondent is the state agency responsible for licensing and regulating foster care in the state. Petitioners were foster care parents until October 5, 2000, when Petitioners voluntarily surrendered their foster care license for medical reasons. Prior to October 5, 2000, Mrs. Williams suffered from high blood pressure and dizziness. She was physically unable to care for foster children and asked that Respondent remove all foster children from her home. Before her medical problems began, Mrs. Williams complained to Respondent that she could not provide foster care for children with behavior problems. Mrs. Williams asked Respondent to remove certain children from her home because they presented behavioral problems with which she could not cope. In March of 2001, Petitioners applied for a new license to provide foster care. Petitioners did not provide any medical evidence, during the hearing or the application process, that Mrs. Williams has recovered from her medical problems. Her medical problems have a long medical history and come and go each year. Mrs. Williams is 62 years old. On the family profile sheet filed with Respondent, Mrs. Williams lists her occupation as "disabled."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order denying Petitioners' application for a license to provide foster care to dependent children. DONE AND ENTERED this 31st day of October, 2001, in Tallahassee, Leon County, Florida. DANIEL MANRY 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 31st day of October, 2001. COPIES FURNISHED: 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 Wilbert and Estella Williams 412 Pine Avenue Sanford, Florida 32771 Craig A. McCarthy, Esquire Department of Children and Family Services, District 7 400 West Robinson Street Orlando, Florida 32801
The Issue The issue to be resolved in this proceeding concerns whether the Respondent Marie Smith has committed an intentional or negligent act materially affecting the health or safety of children for whom she operated as a "medical foster care" parent or provider.
Findings Of Fact The Respondent, Marie Smith, was first licensed in 1992, as a foster care parent by the Department of Health and Rehabilitative Services, since re-named the Department of Children and Family Services. In 1996 she became a qualified medical foster parent, authorized to keep children with special medical problems. The Respondent received special training to become a medical foster parent from Children's Medical Services, a unit of the Department of Health, which oversees the progress of children placed in medical foster care. Some of the training the Respondent received concerned a child, T.B. It involved the use of the medication Flovent, which is used to treat asthma and other bronchial conditions. Flovent is dispensed in a small aerosol container and is administered by use of an inhaler. The training which the Respondent received includes the manner in which the person administering Flovent can ascertain when the container is empty and no longer usable. In connection with the Respondent's training as a medical foster parent, Ms. Smith was also instructed in the importance of giving all medications as prescribed and in how to document administration of medications. Through training and practice she learned to execute forms provided by Children's Medical Services (CMS) called treatment records and medication records, in which were logged each dose of medication given. Although not connected with her training as a foster parent, she also received ninety hours in classroom instruction which resulted in her being certified as a pharmacy technician by the State of Florida. On July 29, 1996, the child D.P. was born. D.P. and his twin brother were placed in Ms. Smith's foster home in October 1996. D.P. lived with Ms. Smith continuously until he was removed from the home in March 1999. In July 1998, D.P. was diagnosed as having bronchiolitis, a chronic inflammation of the bronchial passages of the lungs, later identified as asthma. In order to treat this condition he was prescribed Flovent. The purpose of the medication was to reduce the frequency of exacerbations or "asthma attacks." The medication was not designed to alleviate attacks already in progress, but to prevent future attacks. The medication is only effective if given as prescribed over an extended period of time. If Flovent is not administered as prescribed over a period of time the patient may suffer an increased incidence of asthma. The failure to take preventive steps can result in long-term damage to the lungs according to Dr. Bailey. Ms. Smith filled the first prescription for Flovent at Smith's Pharmacy on July 9, 1998. Only one container of Flovent was dispensed on that occasion. A container of Flovent contains an advertised one hundred and twenty (120) metered actuations or "puffs." The literature inserted into every package contains a warning to the user to use the number of actuations, one hundred and twenty, indicated on the box because the correct amount of medicine in each puff cannot be guaranteed after that point. D.P.'s prescription required him to receive two puffs per day, once in the morning and once in the evening. Since the label on the container itself stated that there were only one hundred and twenty puffs per canister, the first container was due to be replaced after sixty days of use at two puffs per day. Notwithstanding this fact, the prescription was not refilled until October 16, 1998, or ninety-eight days after the first container was obtained. Thus, for a period of thirty- eight days, D.P. either received no dose at all, or potentially received an inadequate dose of medicine. An actual test of a full canister of Flovent was conducted at the hearing. That revealed that one could get approximately one hundred and fifty- seven puffs from a canister before it is empty. However, the literature which comes with the medication makes it clear that a user cannot depend on the adequacy of the dosage after one hundred and twenty puffs. Thus, even if Ms. Smith could have dispensed one hundred and sixty puffs from a canister, and if she maintained that she was administering two puffs per day, she would have run out of the medication after no more than eighty days. Ninety-eight days elapsed however, between the filling of the prescription and the first refill which was obtained in October 1998. Even under Ms. Smith's description of the dosing and administering of the medication, D.P. either had to have gone without his medication for some days or was receiving a less-than-standard amount in order for the medication to last as long as she maintained it did (i.e., possibly one puff per day). Ms. Smith maintained that she actually obtained two packages of Flovent from the pharmacy rather than one on October 16, 1998. The pharmacy records, however, show only one container being dispensed both in July and in October. Those records were made contemporaneously with the receipt and filling of the prescription. The pharmacist and pharmacy technician each double-check the work of the other. Thus if Ms. Smith had obtained double the amount of medication, both the pharmacist and the pharmacy technician would have had to make the same error at the same time, which is improbable. Moreover, there is no label on the extra box taped to the box dispensed on October 16, 1998. It is not the practice of the Smith Pharmacy to tape such boxes together or to label only one box. In any event, on October 16, 1998, Ms. Smith got the prescription refilled. On that day she picked up one container of Flovent. The prescription had not changed at that point so D.P. was still supposed to receive two puffs per day, so the container should have been replaced after sixty days. In view of the fact that Ms. Smith was keeping T.B., another child at the same time she provided foster care for D.P., and since T.B. also had a prescription for Flovent, it has not been established that Ms. Smith could have only gotten an extra Flovent box from the pharmacy, with the boxes containing the two canisters taped together and dispensed together on October 16, 1998. She could have simply used T.B.'s prescription box. The prescription obtained on October 16, 1998, was not re-filled again until March 10, 1999. A period of one hundred and forty-five days had thus passed before a new container was obtained. The test performed at hearing showed that as much as one hundred and fifty-six to one hundred and sixty puffs are contained in such a canister and therefore the medication might have lasted the one hundred and forty-five days. However, if the manufacturer's warning or instruction on the literature supplied with the canister is to be believed, after one hundred and twenty puffs had been dispensed (a sixty-day supply) then less medication might be dispensed with each puff thereafter. Since one hundred and forty-five days elapsed before a new prescription and container of medicine was obtained, D.P. may have failed to received one hundred and seventy doses of medicine over a period of five months. This could clearly have resulted in a worsening of D.P.'s condition. Moreover, Ms. Smith incorrectly documented the administration of the Flovent as though she were in fact giving the medication twice per day as prescribed. See Petitioner's Exhibit No. 2 in evidence. The testimony of the witnesses employed with the CMS who oversee the care for children in medical foster care uniformly found that the Respondent provided good care and they never saw any evidence that medical care for the child D.P. was neglected. In fact, Dr. Samir Ebbeid, a pediatric cardiologist who treated the child from October 1996 through April of 1999, found that the Respondent uniformly complied with his instructions about care for the child and thought that the care of the child by the Respondent between the visits to his office was appropriate. In fact he found that the child improved while under the Respondent's care and that there was no reason to believe that the child's medical care under the care of Ms. Smith, the Respondent, was ever neglected. The child's asthmatic condition actually improved during the time he was under the Respondent's medical foster care.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That a final order be entered by the Department of Children and Family Services suspending the foster care license of Marie Smith for a period of ninety days, during which time she should undertake an approved course of instruction concerning the proper administration and record-keeping of administration of prescription drugs for children in her care. DONE AND ENTERED this 15th day of March, 2000, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 March, 2000. COPIES FURNISHED: John R. Perry, Esquire Department of Children and Family Services Room 252-A 2639 North Monroe Street Tallahassee, Florida 32399-2949 Richard D. Ogburn, Esquire Post Office Box 923 Panama City, Florida 32402 Samuel C. Chavers, Acting Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John S. Slye, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact Petitioners are licensed by Respondent to provide foster care to children in Petitioners' home. Substantially prior to the incidents in question, Petitioners received written materials from Respondent confirming that the foster children at all times remain under the supervision and control of Respondent and that Respondent's discipline policy "[p]rohibits any form of corporal punishment ...." On at least two occasions during the latter half of 1992, a representative of Respondent reminded Petitioners of the policy against corporal punishment. Despite numerous reminders of Respondent's policy against corporal punishment in a foster care setting, on January 29, 1993, Vivian Griffin spanked a 2 and 1/2 year old boy who was in their foster care. He had soiled his diapers during a visit by Mr. and Mrs. Griffin to a commercial lender. As Mrs. Griffin removed him from the office, she threatened, "I'm going to take you outside and I'm going to take your pants down." She took the toddler to her van where she struck the boy at least five to ten times with her bare hand in the area of his buttocks. The incident drew the attention of two office workers, one of whom went out to the van and intervened. When asked by the office worker if she could help, Mrs. Griffin responded, "He shit in his pants." Petitioners' parenting skills are deficient. Mrs. Griffin in particular has a high frustration level with the young children who have been placed in their home. During one home visit by a representative of Respondent, Mrs. Griffin followed around a two year old who was exhibiting normally inquisitive behavior in her home. Rather than remove objects that the toddler should not have touched, Mrs. Griffin hovered over the child, inappropriately threatening at one point a two-minute timeout if the behavior persisted. Both Petitioners have displayed a strong lack of affection, considerable nervousness, and much agitation with the foster children who have been placed with Petitioners. At the same time, Mrs. Griffin constantly resisted help offered by Respondent's representatives and instead complained about these and other persons available to help her. Respondent has offered Petitioners free day care, parenting classes, and individual counselling. But Mrs. Griffin refused to go to the parenting classes or take the children to day care. She reluctantly attended one or two sessions of individual counseling, but soon quit going.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Health and Rehabilitative Services enter a final order denying the renewal of a foster care license to Petitioners. ENTERED on April 20, 1994, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings on April 20, 1994. APPENDIX Rulings on Petitioner's Proposed Findings rejected as not finding of fact. rejected as recitation of evidence and unsupported by the appropriate weight of the evidence. 3-5. rejected as recitation of evidence. Rulings on Respondent's Proposed Findings 1-6. adopted or adopted in substance. COPIES FURNISHED: Robert L. Powell Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Attorney Kelly A. Lee P.O. Box 7946 Naples, FL 33941-7946 Elmer and Vivian Griffin P.O. Box 2544 Immokalee, FL 33934 Attorney Anthony N. DeLuccia, Jr. District 8 Legal Office Department of Health and Rehabilitative Services P.O. Box 06085 Ft. Myers, FL 33906
The Issue The issue is whether Respondent should revoke Petitioner's license to operate a foster care home.
Findings Of Fact At all times material to this proceeding, Petitioner was licensed as a therapeutic foster parent. Respondent issued this license to Petitioner through the Devereux Foundation, which operates and maintains a network of foster homes to serve dependent children in Respondent's custody. Respondent places children in therapeutic foster when they have been exposed to a severe degree of physical, emotional, and/or sexual abuse, as well as extreme neglect and/or abandonment. Such children require special care and cannot be disciplined like children in a stable nuclear family. Therapeutic foster parents should never spank or use other physical methods of punishment or behavior management on these children. Many therapeutic foster children have acute and unresolved issues with control and authority. In such cases, attempts by authority figures to assert rigid control over the children will likely provoke emotionally charged oppositional reactions by the children. This is especially true when the children have not developed a relationship with the authority figures. The likelihood that such oppositional reactions will occur is much greater when authority figures attempt to impose their will on the children with the use of physical force. Children in foster care experience great difficulty in learning to trust others. The inability to trust others is reinforced when a near-stranger makes demands on therapeutic foster children, then uses physical force to compel submission. Children from dysfunctional families often experience violence in the homes of their natural parents. The children learn at an early age to respond with violence to stressful situations. The use of physical force on foster children thus generates a real and severe risk of physical injury to the foster children, the foster parents, and innocent bystanders. One purpose of therapeutic foster care is to help children learn that violent behavior is not acceptable. When foster parents use physical force to compel obedience, they reinforce the lessons learned in the homes of their natural parents at the expense of the lessons the foster care program attempts to teach. Therapeutic foster parents undergo special training before they become licensed. The Model Approach to Parenting and Partnership (MAPP) training that all foster parents receive places special emphasis on the emotional fragility of children in foster care and the consequent need to avoid confrontation with foster children. In other words, MAPP training teaches foster parents not to engage in power struggles with their charges. MAPP training emphasizes the use of positive discipline for the inevitable situations in which foster children test the boundaries set by the foster parents. These methods include reinforcing acceptable behavior, verbal disapproval, loss of privileges, and redirection. Any form of verbal abuse or physical force is strictly prohibited. Petitioner received all of the training described above. In March 2001, a sibling group of two sisters (S.M.1 and S.M.2) and a brother (D.M.) were living in a therapeutic foster home operated by Brad and Sharon Carraway through the Devereux Foundation. Mr. and Mrs. Carraway were licensed therapeutic foster parents. Respondent and the Devereux Foundation have a policy that allows for substitute foster care when therapeutic foster parents need some time away from their foster children. In that case, Devereux arranges for another licensed therapeutic foster home in its network to care for the foster children for a period of time, usually a weekend. This arrangement is known as respite foster care. During March 2001, the Carraways needed a weekend away from their foster children to take care of some family business. At that time, Loretta Kelly was the foster care program manager for Devereux in the North Florida area. Ms. Kelly made arrangements for Petitioner and his wife to take the children during the weekend of March 23-25, 2001. The children arrived in Petitioner's home late in the afternoon of Friday, March 23, 2001. As S.M.1 and S.M.2 settled into their room, Petitioner advised them that supper would be served in five minutes. S.M.1 then announced that she was not hungry and would not be going to supper. Petitioner replied that S.M.1 could either go to the table for supper or he would be back in five minutes and make her go to the table. Five minutes later, Petitioner returned to the bedroom. He told S.M.1, who was sitting on the bed, to come in to supper. When S.M.1 refused again, Petitioner grabbed S.M.1 by the wrists and tried to drag her into the dining room. A struggle ensued with S.M.1 yelling for Petitioner to let go. During the struggle, S.M.1's wrist watch broke, leaving scratches on her arm. S.M.2 was in the hall. Hearing her sister call for help, S.M.2 ran in to help S.M.1. S.M.2 pushed Petitioner away from her sister. Petitioner then grabbed S.M.2 by the wrists and struggled with her for over a minute. During the struggle, S.M.2 slid down to a sitting position with her back against the wall. S.M.2 then used her feet in an attempt to break free from Petitioner. The struggle left S.M.2 with a scar from a scratch she received on her arm. Petitioner finally gave up and called the girls' therapist, Lori Farkas, to complain about the situation. S.M.2 heard Petitioner state that he wanted the girls out of his home. The incident was reported to Respondent. Subsequently, Respondent commenced a child protective investigation into the allegations; the investigation was still open on April 20, 2001. Petitioner became angry when he learned what the children told Respondent's investigators. He telephoned Ms. Kelly on the afternoon of April 20, 2001. He accused the children of lying and asserted that they should be punished. He threatened to file battery charges against the children and have them arrested if they did not change their story and "tell the truth." Next, Petitioner telephoned Ms. Carraway. He told Ms. Carraway that she ought to be teaching the girls morals and honesty. He accused the girls of lying. Petitioner informed Ms. Carraway that he was going to consult an attorney and have the girls arrested at school for assault and battery. Petitioner told Ms. Carraway that he would be more believable in light of the children's background. S.M.1 was with Ms. Carraway during Petitioner's telephone call. Ms. Carraway and S.M.1 wrote notes to each other regarding Petitioner's comments during the telephone call. Both girls were apprehensive for some time after this telephone call about the possibility of being arrested. Ms. Carraway called Ms. Kelly immediately after talking to Petitioner. Ms. Kelly then called Petitioner to instruct him not to make any further calls to the Carraway home.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent enter a final order revoking Petitioner's therapeutic foster license. DONE AND ENTERED this 22nd day of April, 2002, 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 22nd day of April, 2002. COPIES FURNISHED: David L. Motes 2023 Duneagle Lane Tallahassee, Florida 32311 John R. Perry, Esquire Department of Children and Family Services 2639 North Monroe Street, Suite 252A Tallahassee, Florida 32399-2949 Peggy Sanford, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
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
Findings Of Fact The Petitioners R.G. and M.G. were licensed as foster parents and their home as a Children Youth and Families foster home for dependent children at all times pertinent hereto. The Respondent is an agency of the state of Florida charged with licensure of foster parents and foster homes and with regulating and enforcing the standards of care of children placed in such foster homes as dependent children. This dispute apparently arose on or about April 18, 1990 when M.G., the foster mother, brought the M. children to the Department of Health and Rehabilitative Services office on that date to talk with a foster care counselor about problems experienced with the M. children in her home. Apparently the visit to the Department's office arose because M.G. had discovered that one of the children had allegedly stolen one or more articles from a local store in the community, or believed that she had, and was seeking the advise and council of Department's representative concerning the manner in which to address that perceived problem. During the course of that encounter with the Department's representative the M. children or some of them related incidents occurring in the home in the past while they were placed in the custody of the Petitioners which they felt involved or constituted mistreatment by M.G. Upon learning of these reports Department personnel removed the children from the G. home on April 18, 1990. No other children have been placed by the Respondent in the G. foster home since that time. Michelle M. testified that Petitioner M.G. called Marie M. a bitch, a whore and a slut on one occasion and gave Marie M. "the bird" (an obscene gesture). Michelle M. testified that M.G. called Marie M. a slut and stated that "she's just going to grow up to be a whore." Apparently Marie M. and Michelle M. had reported that M.G. called Marie M. a whore when Marie M. told M.G. about borrowing fifty cents from a boy at school. At the hearing, however, Marie M. testified that she borrowed fifty cents from a boy at school and that when M.G. learned of it she said "it would make her look like a whore." Mandy M. testified that M.G. thought that Mandy had called her "a faggot" and that, instead, she told her that she had called her sister that name but that M.G. did not believe her and sent her to her room and shoved her into the room whereupon she fell and hit herself against the bed or bedpost by accident. Michelle M. testified that on a church hayride a boy threw hay and hit M.G. in the face whereupon, thinking Michelle M. had done it, that M.G. hit Michelle on the leg with a flashlight. Mandy M. testified that M.G. hit Michelle on the leg with a flashlight, but her testimony revealed she knew nothing of that incident and her description of it was related to her by one of her sisters. Additionally, Marie M. testified that she saw M.G. pick up an infant by one arm from a crib and scold it for crying as she was picking the infant up to hold the infant in her arms. Michelle and Marie M. testified that M.G. held Marie M.'s mouth open and shoved red hot sauce into her mouth with a spoon as punishment for some perceived infraction. Marie M. testified that M.G. threw hot tea or hot water on the face of Marie M. while the child was asleep on a couch. M.G. categorically denies all the allegations made by the girls, the foster children in question referenced above. She denies ever making obscene gestures, ("the bird"), at any of the girls and denies calling them names such as bitch, slut or whore. She concedes that she may have admonished them or one of them about not "acting like a slut or a whore," etc. She also denies ever having administered hot sauce to any of the children. She said that on one occasion she gave Mandy some mustard on a teaspoon when the child inquired what it tasted like because she had never tasted mustard. She gave her a small amount of it just to show her how it tasted. She denies ever throwing hot tea or hot water on the face of any of the children and denies causing any of the children injury, specifically concerning the bedroom incident when the child apparently bruised her back falling against the bed. M.G. did use confinement for brief periods in a child's room as a form of discipline for inappropriate conduct in the home. She also denies hitting Michelle M. on the leg with a flashlight during the church hayride. In fact due to her position in the haywagon at the other end of the wagon from the child in question, it would have been impossible for her to reach over and hit her with a flashlight and that incident did not occur. M.G.'s testimony concerning the children's conduct and family life in the home with the children is to the effect that the older two girls, particularly the oldest, Michelle M., had a tendency to lie in order to "get their way"; that the girls were unruly and that they, particularly Michelle, used their relationship with HRS to try to intimidate the foster parents, particularly M.G. They had threatened to report M.G. for improper behavior towards the children in the home. The children resented the foster parents authority. Her testimony describes in detail, as do the exhibits submitted by the Petitioners, consisting of the monthly reports M.G. made to HRS, the progress of the girls and conditions generally in the foster home. This testimony and evidence shows that the Petitioners generally provided the children a good, wholesome home environment, with extensive involvement in school and church activities and with ample wholesome recreation activities at the home site on a lake. During the tenure of the girls in the Petitioners' home their scholastic progress improved markedly such that they were all earning "A and B" grades in school and otherwise were progressing well in school. M.G.'s testimony established that the Petitioners were providing a wholesome home environment for the children and were generally conscientious about caring for the children's needs, including medical needs, and with maintaining contact with and reporting to HRS concerning the children's living conditions and their progress in the home and in the school and church environment. The testimony of M.G. to the general effect that the older girls, particularly the oldest child, had a tendency to threaten reporting the parents or M.G. to HRS concerning their conduct as foster parents and their willingness to lie in an attempt to get their way or to intimidate the foster parents is corroborated by the letter in evidence as corroborative hearsay authored by Linda Kennedy. She is an acquaintance of the Petitioners associated with the Petitioners through the foster parent program. That letter indicates that when the girls were being taken to HRS to make statements concerning the incidents in question that they were reported to have said that they wanted to "get back at her" meaning M.G., the Petitioner and that Marie was heard to instruct Mandy not to talk to a lawyer because she "now liked M.G." and that Michelle had commented to the effect that she "wanted to really get her," meaning M.G. This information is taken from a hearsay letter in evidence pursuant to the above cited provision of Section 120.58, Florida Statutes but it corroborates the testimony to the same general effect of M.G. and corroborates testimony of Mandy who, after describing in her testimony some of the alleged parental abuse by M.G., testified that her sisters had asked her to say things to hurt M.G. Because of these revelations contained in the testimony of Mandy M. and the testimony of M.G., as corroborated by the letter in evidence authored by Linda Kennedy, it is deemed that the testimony of the three children can be accorded scant credibility and resultant weight. Accordingly the testimony of M.G. and Petitioner R.G. is accepted over that of the testimony of the three children testifying for the Respondent and it is found that the incidents described by the three children did not occur or did not occur in the way described by the three children such that they can not be deemed to have constituted abusive, disciplinary parenting practices and prohibited disciplinary practices. The testimony of Donna M. establishes that she has overseen the operation and management of foster homes in her capacity with the Department for many years. After the M. children were removed from M.G. and her husband and their foster home she had a number of telephone conversations with M.G. M.G. appeared to her, based upon her observance and her experience, to seem "fairly incoherent" during those telephone conversations on occasion. Consequently she recommended to M.G. that, in the course of the controversy concerning whether or not the foster home should be relicensed, that M.G. obtain a psychological evaluation. M.G. apparently scheduled that evaluation, appeared at the psychologist's office but, as shown by Petitioner's exhibit 5, the psychologist's report, apparently did not genuinely feel that she needed to get an evaluation. She rather merely consulted the psychologist concerning his advice to her about her dealings with HRS. He declined to render such advice and no psychological evaluation was ever made. In view of Ms. Mimms testimony, which is accepted, and in view of the comments made in the letter of Ms. Kennedy, and from the hearing officer's observance of the demeanor of M.G. and consideration of her testimony, it is deemed appropriate that a psychological evaluation of M.G. be obtained as a condition upon relicensure.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record and the candor and demeanor of the witnesses, it is therefore recommended that a Final Order be entered by the Department of Health and Rehabilitative Services granting the application for relicensure of the Petitioners as a Children Youth and Families foster home for dependent children, conditioned on the obtaining of a satisfactory psychological evaluation of M.G. RECOMMENDED this 3rd day of August, 1992, in Tallahassee, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of August, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-5842 Respondent's Proposed Findings of Fact (The Petitioners submitted no proposed findings of fact which can be independently and specifically ruled upon). - I. Rejected as not supported by the greater weight and credibility of the evidence. COPIES FURNISHED: Rodney M. Johnson, Esquire HRS District 1 Legal Office P.O. Box 8420 Pensacola, FL 32505-0420 Ronald and Marjorie Grover 4713 Radio Road Milton, FL 32583 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 John Slye, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700
Findings Of Fact In August, 1980, the home of Jacob and Donna Vermeulen was licensed by Petitioner as a pre-school foster home. Under that licensure, the Vermeulens were able to care for children from birth to four years of age. The subject of this proceeding, hereinafter referred to as S.L., was born on May 26, 1976. When S.L. was four years old he and his younger sister were removed from the custody of his natural mother (after he witnessed the homicide by bludgeoning of his father by his mother) because S.L. and his sister had been physically abused by both natural parents. Petitioner placed S.L. and his sister into the Vermeu1en foster home. After S.L. and his sister had been living with the Vermeulens for approximately six months, Petitioner removed them from the Vermeulen home and returned them to the custody of their natural mother. After approximately six months, the two children were again removed from their natural mother since she again physically abused them. Petitioner requested the Vermeulens to again take custody of S.L. and his sister. The Vermeulens were reluctant to do so since both S.L, and his sister were now older than was allowed under the Vermeulens' license, and because S.L. had problems relating with the other foster children living in that home during his first stay there. However, Petitioner's social workers begged the Vermeulens to take the children back since Petitioner was unable to find any other placement for S.L. The Vermeulens agreed to make their home available to S.L. and his sister, and the two children thereafter lived in the Vermeulen home for approximately two and one-half years prior to April 16, 1984. S.L. is a difficult child to care for; he is very emotional, developmentally immature, fearful, and fidgety. He has difficulty sleeping or listening, has a very low self-esteem, and is unable to complete tasks since he becomes emotionally frustrated. Not only is S.L. a clumsy child (most probably due to medication), he also throws himself onto the floor and onto his toys, both as part of his aggressive play behavior and also in conjunction with throwing temper tantrums. S.L. initiates fights in school, on the school bus and at home with the other children in the Vermeulen home to such an extent that fighting somewhere would have been almost a daily occurrence. His excessive demands for attention were often accompanied by negative behavior, such as hitting other children and throwing temper tantrums. On December 21, 1983, S.L. was evaluated by psychiatrist Josephine Perez. Perez diagnosed S.L. as suffering from Attention Deficit Disorder with Hyperactivity. Perez determined that the high dosages of anti-psychoic medication that S.L. had been taking were inappropriate, and she prescribed different medication for him. Perez recalls that during S.L.'s initial evaluation in December she noticed that his legs and arms were filled with bruises. S.L. began treating weekly with Perez from January 16, 1984, until April 16, 1984. On each visit at least one of the Vermeulens was present, and each visit contained a seasion between Perez and the foster parent discussing the child's progress and training the foster parent in the use of behavioral modification techniques. During those several months S.L. appeared at Perez's office on one occasion with a black eye and on another occasion with a bruising above his eye. One injury resulted from a fall in the bath tub, and another resulted from a fall out of bed; both falls were probably attributable to changes Perez made in S.L.'s medication. The Vermeulens discussed both incidents with Perez since they were concerned that S.L,'s medication was still not in the proper dosage. The Vermeulens testified that sometimes when S.L.'s medication was changed, he was unable to control even his arms and was unable to sit still long enough to eat. In January, 1984, when S.L. began treating with Dr. Perez there were six children living in the Vermeulen home: four foster children, one adopted child, and one natural child. The Vermeulens and Dr. Perez discussed the number of children living in the Vermeulen home, which prohibited giving S.L. the excessive amount of time required by him to satisfy his need for attention. Perez told the Vermeulens that in her professional opinion S.L. should be in a home with no more than one other child. In turn, the Vermeulens told Perez that they had been requesting Petitioner to remove S.L. from their home out of their concern (1) for S.L. since he needed so much more attention than was available to him and (2) for the other children not only because S.L. would kick and hit them but also because the Vermeulens had discovered S.L. in his sister's bedroom standing over her with a knife in his hand on two occasions. Although Perez agreed that S.L. should be placed a different foster setting, she did nothing to assist in obtaining a different placement and did not discuss with any employee of the Petitioner ("HRS") her recommendation and the Vermeulens' desire that S.L. be placed in a setting, preferably, where he was the only child. The Vermeulens, however, continued to request of HRS employees, including the visiting social workers and medical personnel, that S.L. be removed from their home, with visitation rights being given to the Vermeulens if possible. During this time period the Vermeulens determined that they wished to adopt Michelle, a foster child in their care. On Friday, April 13, 1984, an HRS employee went to the Vermeulen home to discuss that petition for adoption and to advise the Vermeulens that HRS would not allow them to adopt Michelle. Mr. and Mrs. Vermeulen S.L., and the rest of the children living in the home were present during that discussion. The Vermeulens were advised that they would not be permitted to adopt Michelle so long as S.L. was living in their home since he is a "therapeutic foster child" and Petitioner's rules would prohibit the adoption while a "therapeutic child" was in the home. Mrs. Vermeulen was unable to understand Petitioner's position: its refusal to remove S.L. from her home after repeated requests and its refusal to allow her to adopt Michelle for the reason that S.L. was in her home. Mrs. Vermeulen became upset, and S.L. told her and Petitioner's employee to put him in a foster home indicating he would rather be sent away than prevent Michelle from being adopted by the Vermeulens. Since the HRS employee was having a difficult time discussing HRS's position, she left the Vermeulen home. On Friday, April 13, 1984, or on Monday, April 16, 1984, S.L. became involved in a fight on the school bus on the way home from school. The bus driver told Mrs. Vermeulen about the fight. On Monday April 16, 1984, Mrs. Vermeulen took S.L. to his weekly therapy session with Dr. Perez. During that session, S.L. indicated to Perez that he had been bad and had been "paddled" on the legs. He would give her no details, but Perez believed it was Donna Vermeulen who paddled S.L. Rather than discuss it with Mrs. Vermeulen, Perez acted as though nothing had been said. Further, although a medical doctor, she did not examine S.L. Instead, Perez discussed with Mrs. Vermeulen behavioral modification techniques to be utilized with S.L. and sent them home. She then telephoned HRS, and a child abuse report was completed. On April 18, 1984, an HRS employee went to S.L.'s school, removed the child from his class, and took the child to be examined by the Child Protection Team. S.L. was first examined by the nurse. When S.L. was unable to explain to the nurse from where each mark on his body originated (or refused to), she interrogated him with questions such as "Did your mommy hit you?" The nurse made notations on a chart indicating numerous marks or bruises on S.L.'s body. However, an HRS employee saw S.L. disrobed when he was being examined by the doctor on the team and saw only two marks on his lower back. Other HRS employees went to the Vermeulen home and removed all the children. No one discussed the incident or accusation with either Mr. or Mrs. Vermeulen until the following day. Until he was removed from her class on April 18, 1984, S.L. was taught by Debbie Froug an Exceptional Education teacher for emotionally disturbed children. Although Froug describes S.L. as a basically honest child, she testified that he sometimes gets very confused. A careful review of the videotaped testimony of S.L. and of the conflicting testimony of the witnesses in this case indicates that Froug's latter description is probably an understatement. No witness in this case heard the same explanation (or accusation) as any other witness. S.L's videotaped testimony illustrates why: there is no statement made by S.L. that is not contradicted by him a few seconds later. For example the videotaped deposition contains on page 27 the following: O. Did you ever have a black eye? A. No. O. Didn't you talk to Dr. Perez about having a black eye once? A. Yes, but I didn't. How did you get the black eye? One of the kids on the bus. Things stated in the affirmative by S.L. in his deposition are also stated in the negative in that same deposition. Further, it is sometimes impossible to ascertain if S.L. is describing being hit by his real father, by his real mother, or by his foster mother. Although no accusation appears to ever have been made, including in the Administrative Complaint, that Jacob Vermeulen ever struck S.L., by the time of S.L.'s deposition eight months after the alleged incident when S.L. was asked if Jacob ever hit him, that question was answered in the affirmative. In short, the evidence is clear that S.L. had some bruises or marks on his body on April 18, 1984; that those bruises or marks were both received accidentally and intentionally inflicted, and that the bruises or marks on S.L.'s body were received as a result of S.L. falling from being uncoordinated or overmedicated, from S.L. flinging himself onto the floor or onto or against objects, and from being hit or kicked by other children with whom S.L. engaged in almost-daily physical combat. Donna and Jacob Vermeulen used only approved behavior modification techniques with S.L. and did not hit S.L. with or without any object, spank S.L., or otherwise inflict physical abuse upon him. Although the Vermeulens' license as a foster home was in effect at all times material hereto, it has lapsed. A foster home license is not automatically renewed but rather requires an annual licensing study. Other than "the incident" charged herein the Vermeulens have received no prior complaints from HRS.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is REC0MENDED that a Final Order be entered dismissing with prejudice the Administrative Complaint filed herein and directing that any licensure study performed regarding the renewal or extension of Respondents' license be made omitting therefrom consideration of any of the matters set forth herein. DONE and RECOMMENDED this 19th day of July, 1985 at Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of July,1985. COPIES FURNISHED: Leonard Helfand, Esquire Department of Health and Rehabilitative Services 401 N.W. 2nd Avenue, Suite 1070 Miami, Florida 33128 Thomas J. Walsh, Esquire 590 English Avenue Homestead, Florida 33030 David Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
The Issue Should Respondent's family foster home license be revoked, suspended, or otherwise disciplined based on the facts alleged in the Notice of Denial dated August 27, 1998, as amended?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Department is the agency of the State of Florida charged with the responsibility of licensing family foster homes and administering the foster care program as it relates to family foster homes, such as providing foster care supervision and services. On June 16, 1997, Kristie and Robert Huggins (Huggins) of 1403 Chamberlain Loop, Lake Wales, Polk County, Florida, were issued a Certificate of License by the Department to operate a family foster home for children. Subsequently, the Department placed foster care children in the Huggins' home. At all times pertinent to this proceeding, the Department had the children A.M., born December 29, 1996, L.M., born September 30, 1995, and A.C., born October 22, 1996, placed in the Huggins' home. The Notice of Denial dated August 27, 1998, provides in pertinent part as follows: . This letter provides notice that your license as a foster home is revoked based on Section 409.175(8), Florida Statutes, and Rule 65C- 13.001, Florida Administrative Code (F.A.C.). The reasons for the revocation are as follows: Vickie Barron, of Nurturing Families Project, Evelyn Liamison [sic], Guardian Ad Litem, and Family Service Counselors Patrice Thigpen and Desiree Smith noted as to Mrs. Huggins' "possessiveness" of the children toward the birth parents. The children were known in the Busy Bee Preschool as the "Huggins Children." The children's belongings were marked as "Huggins." These actions violate Rule 65C-13.010(1)(b)(1)(c)(F.A.C.), which states that substitute care parents are expected to help children in their care to maintain a sense of their past and record of their present. Bruises and other injuries noted by Vickie Barron of Nurturing Families Project, Evelyn Liamison [sic], Guardian Ad Litem, and the birth parents. The Busy Bee Preschool also noted bruises and various injuries to the three children on 2/13/98, 2/26/98, 3/2/98. 3/16/98, and 3/23/98. While they resided in the Huggins' home. Since the children have moved from the home, these types of injuries are not occurring. Rule 65C-13.009(e)(10) (F.A.C.), require that foster parents must be able to provide a healthy and safe environment for children and youth and keep them from harm. You have failed to comply with this rule. Desiree Smith, Family Service Counselor, noted that on 3/12/98, when Mrs. Huggins was questioned about a bruise on a male foster child, she told Desiree Smith that the bruise occurred at the daycare. The daycare notes reflected that Mrs. Huggins told the daycare that the bruise was received at the doctor's office. This violates Rule 65C- 13.010(4)(1)(F.A.C.), which states that the substitute care parents must notify the department immediately of illness or accidents involving the child. You did not notify the department when you and Mr. Huggins separated. This violates Rule 65C-13.010(4)(g), which states substitute care parents must notify the department regarding changes which affect the life and circumstances of the foster family. Your violation of the above mentioned Administrative Rules created an unsafe environment for foster children. Section 409.175(8)(b)1, Florida Statutes. At the beginning of the hearing, the Department made an ore tenus motion to amend certain rule citations in the Notice of Denial. The motion was granted and the citations to Rules 65C-13.010(1)(b)(1)(c)(F.A.C.); 65C-13.009(e)(10)(F.A.C.); 65C-13.010(4)(1)(F.A.C.); and 65C-13.0010(4)(g)(F.A.C.) were amended to read as follows: Rules 65C-13.010(1)(b)1.c.; 65C-13.009(1)(e)10.; 65C-13.010(4)(j); and 65C-13.010(4)(g), Florida Administrative Code, respectively. Respondent was a very loving, caring and affectionate foster parent and expressed her love, care, and affection with L.M., A. M., and A.C. both in and out of the foster home. From the very beginning, Respondent understood that the ultimate goal for L.M. and A.M. was reunification with their biological parents. At some point in time after A.C. was placed in foster care with Respondent, she expressed a desire to adopt A.C. At this time, Respondent understood (mistakenly) that the goal was to terminate the parental rights of A.C.'s biological parents. However, the Department's goal was for reunification and not termination of parental rights. In fact, it is not unusual for foster parents to adopt a child placed in their care when and if the Department terminates the parental rights of the biological parents and offers the child for adoption. Upon learning of the Department's goal of reunification for A.C., Respondent did not pursue the issue of adoption of A.C. Apparently, Vicky Barron and, to some degree, Evelyn Lamison misunderstood Respondent's love, care, and affection for these children as possessive and interfering with the goal of reunification. Vicky Barron is employed by Regency Medical Center, Winter Haven, Florida, supervising the Nurturing Families Program. Evelyn Lamison is the guardian ad litem for L.M. and A.M. Patricia Bryant, Family Service Counselor with the Department, described Respondent as being over-protective but did not see Respondent's love, care, and affection for the children as being an attempt to undermine the goal of reunification. Respondent enrolled L.M., A.M., and A.C., in the Busy Bee Preschool. At the Busy Bee Preschool, the children were at times referred to as the "Huggins" children. However, there was no attempt by Respondent or her husband to conceal the fact that the children were their foster children. They were enrolled under their biological parents' name. Some of their belongings were marked "Huggins" and some of the belongings were marked in the child's given name. The marking of the children's belongings was for the convenience of the Busy Bee Preschool and not intended as a means to deprive the children of sense of their past or present. Although there may have been some hostility on the part of both the Respondent and the biological parents of the children, there was insufficient evidence to show that Respondent, either intentionally or unintentionally, attempted to interfere, sabotage, or prevent the ultimate goal of reunification of the children with the biological parents, notwithstanding the testimony of Vicky Barron and Evelyn Lamison to the contrary, which I find lacks credibility. Without question, there were bruises, scratches and bug bites on L.M., A.M., and A.C. during their stay at Respondent's foster home. Some of these scratches and bruises occurred in and around Respondent's home, some of them occurred at the Busy Bee Preschool. On at least one occasion (March 12, 1998) A.C. fell while in the doctor's office and bruised his face. This bruise was noted in the Busy Bee Preschool notes, as were other scratches and bruises to the children received at home or at the Busy Bee Preschool. The incident of March 12, 1998, was documented by the doctor's office. In fact, it became the basis of an abuse report filed against Respondent which was determined to be unfounded. This alleged abuse was not reported until June 4, 1998. There is no evidence to support the allegation that Respondent told Desiree Smith that the bruise to A.C.'s face which occurred at the doctor's office occurred at the Busy Bee Preschool. Another abuse report was filed against Respondent concerning L.M. and A.M. on March 24, 1998, which was closed as unfounded. Vicky Barron testified that she was the reporter in both abuse reports. She also testified that she disagreed with the Child Protective Investigator's finding that there was no evidence of abuse. Her disagreement was such that she contacted the Investigator's supervisor in an attempt to have the finding reversed. Based on the testimony of the Department personnel and the Busy Bee Preschool personnel who testified at the hearing, it is clear that these bruises, scratches, and bug bites were no more or no less severe than bruises, scratches, and bug bites experienced by other active children the age of L.M., A.M., and A.C., notwithstanding the testimony of Vicky Barron and, to some degree, Evelyn Lamison to the contrary, which I find lacks credibility. Although there is no allegation concerning the Respondent's home, it is clear that Respondent kept her home neat, clean, and safe (although there was some clutter at times). However, when a matter concerning the children's safety was brought to Respondent's attention it was corrected. There is insufficient evidence to show that Respondent failed to provide a healthy and safe environment for L.M., A.M., and A.C. and to keep them from harm. While there may have been problems between Kristie Huggins and Eric Huggins, Kristie Huggins did not anticipate a separation until April 23, 1998, when Eric Huggins failed to return home after his trip out of town. Through Patty Fazzino, Respondent advised the Department's office in Tallahassee, Florida, of the separation. Subsequently, the Department's Tallahassee office advised the Lakeland office. Although Respondent did not directly notify the Department's local foster care licensing personnel, the Respondent did not intentionally or unintentionally fail to notify the Department of her separation from Eric Huggins. Likewise, Respondent did not fail to immediately notify the Department of any illness or accidents concerning L.M., A.M., and A.C. which required department notification. It appears from the testimony of Mary Jordan that Respondent has completed the necessary hours of training for relicensure but would need to complete some paper work.
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 granting Respondent Kristie (Huggins) Pfingston her family foster care license. DONE AND ENTERED this 2nd day of April, 1999, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of April, 1999. COPIES FURNISHED: Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John S. Slye, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Jack Emory Farley, Esquire Department of Children and Family Services 4720 Old Highway 37 Lakeland, Florida 33813-2030 Raymond A. Goodwill, Jr., Esquire 107 Avenue A, Northwest Post Office Box 2334 Winter Haven, Florida 33883
The Issue What final action should be taken on Petitioner's application to renew its full-year regular license to operate as a Florida child-placing agency.
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made: Petitioner Petitioner is now, and has been at all times material to the instant case, a child-placing agency doing business in Palm Beach County, Florida. Cheryl Eisen, Esquire, is now, and has been at all times material to the instant case, Petitioner's executive director. She and her secretary are currently Petitioner's only employees. Ms. Eisen is now, and has been since 1974, a member in good standing of The Florida Bar. She specializes in adoption law. Her law firm provides Petitioner with legal services. Ms. Eisen is not paid for any of the work she performs in her capacity as Petitioner's executive director. (Her law firm, however, is paid for the legal services it provides.) Ms. Eisen was first employed by Petitioner in February of 1996. Before she started working for Petitioner, Ms. Eisen served as outside legal counsel for another Florida-based child- placing agency, Adoption Connection. Her services were terminated by Adoption Connection in March of 1995, when she became embroiled in a dispute with the executive director and board of directors of the agency concerning whether to report to the Department's predecessor, the Department of Health and Rehabilitative Services (HRS), that administrative action had been initiated against a "sister agency" of Adoption Connection's located in Massachusetts. Ms. Eisen advised that HRS be notified of the situation in Massachusetts, but Adoption Connection's executive director and board of directors refused to follow Ms. Eisen's advice. When she insisted that such notification be given, she was terminated. Adoption Connection was closed a few months later. Ms. Eisen, along with Sally Oken, a licensed clinical social worker who had also worked for, and been terminated by, Adoption Connection, subsequently formed Petitioner. Petitioner's Licensure History Petitioner was first licensed as a child-placing agency on April 15, 1996. The license it received was a provisional license. This provisional license was converted to a regular license, expiring April 30, 1997. On April 30, 1997, Petitioner received a second provisional license, expiring June 13, 1997. This second provisional license, on June 13, 1997, was replaced by a regular license, expiring April 30, 1998. Petitioner first received a full-year regular license in 1998. The license had an effective date of April 30, 1998. The Certificate of License that Petitioner received from the Department indicated that Petitioner "ha[d] complied with the minimum standards set by the Department for Child-Placing Agencies." The Certificate of License was accompanied by the following cover letter from the Department, dated May 1, 1998: Enclosed is a copy of the licensing report and the Certificate of License for Adoption Advisory Associates, Inc., effective April 30, 1998, expiring April 30, 1999. The license is to be displayed in a prominent place at the agency. Please pay particular attention to items indicated in bold in the report. The foster home license needs to be processed as soon as possible. I will work with the Department, although you need to follow up and notify me when the license has been issued. When your audit is complete, please notify me and send the packet to me (no later than June 30, 1998). . . . The "licensing report" which was sent to Petitioner along with the Certificate of License provided, in pertinent part, as follows: RESULTS: . . . Program Policies and Procedures: A revised contract and fee schedule was formulated and submitted to the Department. AAA has complied with the recommendation by the Department to inform all clients of their right to report a complaint to the Department. The Agency has incorporated this necessary information in their packets to clients. Policies and procedures and necessary legal documentation appear to comply with Florida Code 65C-15. Documentation of counseling services to birth parents and support services was also found in files. Staff: . . . Screening documentation has been kept up to date. Cheryl Eisen will be due for 5-year re-screening in July 1998, which would include FDLE and local law checks. . . . Audit and budget: The agency's fiscal year ends April 30, and the audit and budget will be prepared and submitted to the Department. The auditor's report will be reviewed by the Department, and past recommendations by the auditor are expected to have been put into place. The audit needs to be completed and submitted by June 30, 1998. Complaints/concerns: During the past year, the Department received a few phone calls from prospective and waiting list adoptive couples, and a birth parent relative who expressed concerns or had questions on certain agency procedures. These concerns were discussed and resolved by the Department and/or agency staff. It is recommended that a system of monthly contacts with adoptive couples who are waiting for a placement be established, and that services and a system of communication with adoptive couples be expanded. . . . RECOMMENDATION: Adoption Advisory Associates appears to comply with licensing standards outlined in Florida Administrative Code 65C- 15. Items indicated in bold in this report need to be addressed accordingly. It is the recommendation of the Department to issue a Child-Placing license to Adoption Advisory Associates, effective April 30, 1998, expiring April 30, 1999. The Submittal of Petitioner's March 1999 Application for Licensure Renewal and the Department's Response By letter dated March 2, 1999, the Department, through Karen Willson, a facilities licensing counselor with the Department, reminded Petitioner, through Ms. Eisen, that its current license would expire on April 30, 1999. The letter read as follows: As you are aware, all child-placing agencies need to be relicensed on a yearly basis. Your present license expires on April 30, 1999. Enclosed are Application For License and Assurance of Compliance forms, which need to be signed and returned to me. I am also sending a copy of Florida Administrative Code, Chapter 65C-15, Licensing Standards, and a licensing checklist to use as a guide. I will be reviewing all areas of these licensing standards at the time of the monitoring. Please compile a list of all adoptive couples, on the waiting list, and couples who have had adoptive placements during the last year, including addresses and phone numbers. As part of the licensing process, I may be contacting these individuals. Please send this list to me prior to the scheduled on- site visit. I would like to meet with you on March 23, 1999, at 10:00 a.m. Please call met at . . . to confirm this date and time. In addition, please have the following available for review: Monthly contact sheets (adoptive couples waiting) Organizational chart with employees listed Updates of changes in policies and procedures Fee schedule for adoptive parents Statistics (no. of birth mothers, adoptive parents waiting, placements, finalized and ongoing) List of board members; board meeting minutes Annual Audit** Budget Staff training logs and evaluations Files: personnel (including screening information), birth mothers, adoptive parents, foster homes. If you have any questions concerning the licensing process, please feel free to call me. ** AAA is presently out-of-compliance with Florida Administrative Code 65C-15, as the Department has not received an annual audit. The last audit received was dated June 3, 1997. This will require a corrective action if a current audit is not received by March 23, 1999. On March 23, 1999, Petitioner submitted to Ms. Willson its application seeking the renewal of its full-year regular child-placing agency license. On April 14, 1999, Ms. Eisen, by facsimile transmission, provided Ms. Willson with the statistical information Ms. Willson had requested in her March 2, 1999, letter. By letter dated April 28, 1999, which read as follows, Ms. Willson informed Ms. Eisen that the Department was granting Petitioner a "three-month provisional license: Enclosed is a provisional Certificate of License for Adoption Advisory Associates, Inc., expiring July 31, 1999. As you are aware, the Department is currently investigating recent complaints reported to the Department regarding the agency. In order to complete the investigation, a three- month provisional license is granted at this time. 1/ You will be notified as to the results of the investigation, when completed, and the status of your license at that time. The enclosed "provisional Certificate of License" stated as follows: Know All Men by These Presents: That the Department of Children and Families being satisfied that the facility located at 2999 Camino Gardens Blvd., Suite 205 in the city of Boca Raton, County of Palm Beach, State of Florida, has complied with the minimum standards set by the Department for Child- Placing Agencies and the Department approves the application of said Adoption Advisory Associates, Inc. for a license to operate and directs the issuance of this certificate on the 30 day of April, 1999. The license shall continue in force for one year from the above date unless renewed, withdrawn, or revoked for cause. This is a provisional license which will expire July 31, 1999. The certificate was signed by the District Administrator. By letter dated May 14, 1999, Petitioner informed the Department of Petitioner's "objections regarding being given only ninety days' provisional status." As noted above, on July 15, 1999, the Department issued its Notice of Intent and, by letter dated July 26, 1999, Petitioner requested an administrative hearing on the matter. By letter dated July 29, 1999, to the District Administrator, Ms. Eisen set forth Petitioner's position regarding the "legal situation" with respect to its licensure status: We applied for renewal of our license on March 24, 1999. On April 30, 1999, the Department apparently purported to neither approve nor to deny our license renewal application, but to give us a "provisional" license. In pertinent part, Florida Statutes section 409.175 (1998) provides the circumstances in which a provisional license may be issued: "(6)(a) The department may issue a provisional license to an applicant who is unable to conform to the licensing requirements at the time of the study . . . . The issuance of a provisional license shall be contingent upon the submission to the department of an acceptable written plan to overcome the deficiency by the expiration date of the provisional license. A provisional license may be issued when the applicant fails to meet licensing requirements . . . and the agency has submitted a corrective action plan which is approved by the department. [A] provisional license may not be issued unless the applicant is in compliance with the requirements in this section for screening of personnel. A provisional license . . . may be suspended if periodic inspection by the department indicates that insufficient progress has been made toward compliance with the requirements." All three subsections of section 409.175(6) anticipate that the Department has informed an agency of deficiencies that need to be corrected at the time the provisional license is granted. As this agency received no such notice, we were not in fact granted a provisional license on April 30, 1999, but an unconditional approval of our license application. In the alternative, Florida Statutes section 120.60(1) 1998 requires that: "Every application for a license shall be approved or denied within 90 days after receipt of a completed application. . . . The agency must approve any application for a license . . . if the agency has not approved or denied the application within the time periods prescribed by this subsection." Because the District did not approve or deny by June 22, 1999, the license we applied for on March 24, 1999, this so-called "deemer" provision in the Florida Administrative Procedures Act has entitled this agency, since June 22, 1999, to demand issuance of an unconditional license. It is our hope that, in consideration of the foregoing, as well on the basis of the material we have previously provided directly to you and Judge Kearny, you will forthwith issue the license which this agency presently enjoys by operation of law. The District Administrator responded to Ms. Eisen by sending her a letter, dated July 30, 1999, which read as follows: The Department of Children and Families has reviewed your correspondence of July 29, 1999 regarding the licensure of Adoption Advisory Associates, Inc. (AAA) A determination has been made that AAA will receive a restricted Certificate of License in order to continue working with existing clients. The license will be subject to immediate revocation in the event that a final order is issued affirming the Department's decision not to renew AAA's license. A list of existing clients must be provided to the Department within five days of receipt of this letter. Failure to do so will result in the revocation of the restricted license. The Restricted Certificate is attached. The Department has forwarded your July 26, 1999 request for an administrative hearing to the agency clerk for processing. Thank you for your prompt consideration. The "attached" "Restricted Certificate" indicated that it would "continue in force for one year from [July 31, 1999] unless renewed, withdrawn, or revoked," and further indicated that it would be "subject to immediate revocation in the event that a final order is issued affirming the Department's decision to not renew Adoption Advisory Associates' license." Petitioner still operates under this "Restricted Certificate," which provides that Petitioner shall accept no new clients. "Agency Identified" Domestic Adoption Services Contract At all times material to the instant case, Petitioner presented to prospective adoptive parents desiring to receive domestic adoption services from Petitioner a form contract (Domestic Contract) for their signature. Section I of the Domestic Contract addressed the subject of the "agency's undertaking, services, and exclusions." It provided as follows: Agency's Undertaking. The Prospective Adoptive Parents request, and the Agency is willing to provide, domestic adoption services with the goal of providing to the Prospective Adoptive Parents an offer of placement of an adoptable newborn child in the Prospective Adoptive Parents home at the earliest possible moment. The Agency agrees to make a diligent effort to place such a child with the Prospective Adoptive Parents in accordance with the social service policies and procedures of the Agency, as established and from time to time amended by the Agency's Board of Directors, and in accordance with federal and Florida statutory and administrative law. Agency Services. The Agency's domestic adoption services include, but are not limited to, birth parent outreach in the form of professional networking and widespread advertising; provision of prebirth medical and social services to birth parents, including counseling about adoption issues and alternatives; home studies and pre- and post-adoption counseling for prospective adoptive parents; presentation of educational and supportive forums and seminars for clients, professionals, and the public; birth parent housing; and legal services including termination of parental rights and finalization of Florida adoptions. Non-resident Prospective Adoptive Parents. If the Prospective Adoptive Parents are not Florida residents, compliance with the law of their home state as regards payment of Agency's fees and costs, placement, post-placement and finalization of adoption is their sole responsibility and must be arranged for by obtaining advice and assistance of a licensed and experienced attorney in that state prior to the execution of this contract, providing the following information: Attorney Telephone Street City State Zip The Prospective Adoptive Parents understand that disapproval by their home state of any aspect of a placement pursuant to this contract may disrupt the placement. The Prospective Adoptive Parents indemnify and hold the Agency harmless for such result, remaining responsible for the "At Placement" fees and costs due the Agency under this contract to the extent not otherwise recouped by the Agency by making an alternate placement of any child identified to this contract. Further, such mistake of law shall not be a basis for recission of this contract or refunding of "At Contract" fees and costs paid hereunder. (See paragraphs II, B and C, below for information regarding "At Contract" and "At Placement" fees.) Section II of the Domestic Contract addressed the subject of the "fees and costs." It provided as follows: Basis for Determining Fees and Costs. Pursuant to Florida Administrative Code section 10M-24.019(4)(b), 2/ the Agency's adoption fees have been established based on the reasonable costs of the following services for the total adoption program: (1) medical services for the child and the birth mother; (2) legal services; (3) counseling services; (4) home study services; (5) living expenses for the birth mother; (6) foster care services; (7) pre- and post-placement social services; (8) contracted services, if applicable; (9) other necessary services; and (10) agency facilities and administrative costs. Summary of Estimated Fees & Expenses and Refund Policy. The Agency's Summary of Fees & Expenses ("Fee Summary") and its Refund Policy are attached and incorporated in this agreement by this reference. The Prospective Adoptive Parents acknowledge that those documents have been thoroughly reviewed by them with Agency staff and are completely understood and accepted. Timing and Manner of Payment of Fees. A Home Study Service Fee will have been paid to the Agency prior to execution of this agreement. The "At Contract" Fees shown on the Fee Summary are due upon execution of this agreement, after the Agency's approval of the Prospective Adoptive Parents' home study. The "At Placement" Fees shown on the Fee Summary, including all contingent fees as estimated by the Agency, are due in the form of a cashier's check after birth immediately prior to physical placement of the child with the Prospective Adoptive Parents. The "Fee Summary" referenced in subsection II.B. of the Domestic Contract provided as follows: SUMMARY OF ESTIMATED FEES & EXPENSES AGENCY ADMINISTRATIVE FEE (out-of-Florida birth or placement $500 additional*) At Contract $5,750.00 At Placement $5,750.00 BIRTH PARENT COUNSELING FEE At Contract $1,250.00 At Placement $1,250.00 BIRTH MOTHER SUPPORT FEE/EXPENSES At Contract $2,000.00 At Placement [see note]** BIRTH MOTHER MEDICAL FEE/EXPENSES At Contract $2,000.00 At Placement [see note]*** POST PLACEMENT SERVICES FEE (out-of- Florida placement $500 less) At Placement $1,000.00 LEGAL FEE**** At Contract $500.00 At Placement $1,000.00 [Total Due] At Contract $11,500.00 * An out-of-Florida birth or placement may also involve additional costs for out-of- state attorneys, agencies, and/or social workers, which costs will not be within the agency's control; further, adoptive parents' travel expenses are additional and will include hotel costs while Interstate Compact processing is pending. ** A $2,000 minimum Birth Mothers' Support Fee is required regardless of whether and to what extent support of the Birth Mother is needed. This permits the agency to fund the provision of living expenses to birth mothers who ultimately choose not to place or whose babies are ultimately determined to be legally or medically unadoptable. A Birth Mother's actual support expenses only rarely exceed $3,500 additional to the $2,000 Support Fee paid "At Contract." *** A $2,000 minimum Birth Mothers' Medical Fee is required regardless of whether and to what extent the birth may be covered by insurance or Medicaid. This permits the agency to fund the provision of medical services to birth mothers who ultimately choose not to place or whose babies are ultimately determined to be legally or medically unadoptable. In the event of a "non-covered" birth, the adoptive parents will be responsible only for the birth mother's actual medical expenses, which can be expected to be between $3,000.00 and $8,000.00, after credit for the $2,000 Medical Fee paid "At Contract," depending on the circumstances of pregnancy and birth (with no contribution to our medical service fund required). The child's medical expenses are additional, but under the law of many states, including Florida, these are reimbursable by the adoptive parents' health insurance carrier. **** The $1,500.00 legal fee is exclusive of required court and administrative fees (filing fee for petition of adoption, certified copies of court orders, obtaining original and amended birth certificates-- totaling approximately $250), and does not include the expense of newspaper publication of notice to the birth father, if such is legally necessary ($275 - $300), or any unanticipated fees or expenses. NOTE: Charges for required home study services are payable at the time of service, prior to and apart from the "At Contract" and "At Placement" fees shown above. Charges are as follows: full home study-- $1,500; update of home study more than a year old-- $750; review and confirmation of current home study prepared outside our agency-- $350. The "Refund Policy" referenced in subsection II.B. of the Domestic Contract provided as follows: REFUND POLICY In some few cases, prospective adoptive parents accepted into Adoption Advisory Associates' program decide to continue with, or seek out, other placement sources after working with us. We fully support whatever decisions you make in this regard, and work equally diligently for those working only for us and those working with other agencies and/or attorneys as well. We have developed the following refund schedule to be effective in the event you accept placement of a child from another source (or receive confirmation or your own pregnancy): If you notify us in writing of your acceptance of placement of a child from another source (or of your own pregnancy), we will refund your At Contract fees and expenses within thirty days of receipt of such notification as follows: Notification within 0-30 days of date of acceptance into AAA's program: $5,000.00 31-60 days $4,000.00 61-90 days $3,000.00 91-180 days $1,500.00 after 180 days No Refund For purposes of this Refund Policy, "placement" is defined as actually receiving a child in your home for the purpose of adoption. "Date of your acceptance into AAA's program" is defined as the date we sign our Domestic Adoption Services Contract with you. If, in the sole discretion of the Executive Directors, circumstances other than receiving placement of a child from another source, or confirmation of pregnancy, warrant any refund of At Contract fees and expenses, such a refund would be based on the foregoing schedule. In no event shall any mistake of law by Prospective Adoptive Parents residing outside the state of Florida as to the enforceability or implementation of this contract under the law of their home state constitute grounds for any refund of fees or costs paid by them, it being their sole obligation to obtain counsel in their state before entering into our Domestic Adoption Services Contract. Section III of the Domestic Contract addressed the subject of "conditions of matching and adoptive placement." It provided as follows: Birth Parent Selection of Prospective Adoptive Parents: Contact Protocols. The Agency encourages birth parents to participate in the process of choosing prospective adoptive parents for their babies from those pre-approved and recommended by the Agency, and such choices are given paramount importance. Nevertheless, the Agency has sole and exclusive control of the sequence of parent(s) eligible to adopt and the matching process, and will make final decisions regarding matching, meeting and placement of children for adoption. From the time of matching to the time of placement for adoption, the Prospective Adoptive Parents will abide by any and all protocols the Agency in its sole discretion shall establish, either in general or ad hoc, as relates to contact with the Agency's birth parent clients and their babies, whether in the Agency, in the hospital, or elsewhere. Placement Formalities. After the birth of the child to be placed with the Prospective Adoptive Parents, but before physical placement, the Prospective Adoptive Parents will, as conditions precedent to placement, (1) execute the Agency's placement papers and (2) pay to the Agency by cashier's check the balance of the total estimated fees and costs of the of the adoption as determined by the Agency at that time. Any additional costs (typically medical expenses) associated with the placement will be paid by the Prospective Adoptive Parents upon receipt of the Agency's bill, but in no event later than the execution of the Agency's consent to finalization of the adoption of the child. Legal and Physical Custody until Finalization; Duty of Support. As provided by law, the Agency retains legal custody of the child until finalization of adoption occurs and thus has the authority to make any and all decisions it deems to be in the child's best interests. Nevertheless, the Prospective Adoptive Parents, to be the physical custodians of the child, agree to provide for one hundred percent of the child's medical and other care nunc pro tunc (i.e. retroactively) from birth until finalization of adoption, and indemnify and hold the Agency harmless for any claims by third parties for providing goods or services to the child. Removal of Child. The Agency may remove the child from the home of the Prospective Adoptive Parents, prior to finalization, if the Prospective Adoptive Parents accept another child for the purpose of adoption either through another Agency or through an attorney. The agency will remove a child from the home of the Prospective Adoptive Parents, prior to finalization, if in its professional judgment the placement proves not to be in the best interests of the child. Section IV of the Domestic Contract addressed the subject of "placement, post-placement and finalization." It provided as follows: Timing of Placement; Foster Care. The Agency may place a child with the Prospective Adoptive Parents, and the Prospective Adoptive Parents agree to be available for the placement of the child, as soon as 24 hours following the birth of the child if the Agency determines that placement is clinically appropriate. In the event the Prospective Adoptive Parents or the child are not ready or available for placement upon the child's discharge from the hospital so that foster care is required, the Agency will place the child in foster care until appropriate arrangements are completed for placement with the Prospective Adoptive Parents. In this event, the Prospective Adoptive Parents will be responsible upon placement for such foster care expenses at the rate of $75.00 per day. Out of State Birth; ICPC. In the case of a birth in a state other than the Prospective Adoptive Parents' home state, the Prospective Adoptive Parents (or one of them) must travel to the foreign state, at their expense, to take physical custody of the child. They must remain in that state until all the legal requirements imposed by the Interstate Compact on the Placement of Children ("ICPC") have been complied with in both the "sending" and "receiving" state. The duration of the stay in the foreign state is subject to many factors beyond the control of Adoption Advisory Associates, but will be estimated at the time a particular match is offered. A typical ICPC waiting period is five (5) to ten (10) days. Post-Placement Supervision. If a child is placed with Prospective Adoptive Parents residing in Florida, the Agency will conduct a scheduled series of post-placement contacts with the family. These contacts are for the purpose of providing support and collecting data for the Agency's final recommendation to the court regarding finalization of the adoption. If placement is outside Florida, a local social service provider will be arranged and paid for by the Prospective Adoptive Parents, subject to the approval of the Agency, to perform this post-placement supervision. Progress Reports and Photographs. The Prospective Adoptive Parents agree to submit to the Agency monthly written reports regarding the child's progress, along with color photographs of the child, each month until finalization of the adoption, and thereafter each year around the time of the child's birthday. It is understood that these reports and pictures will be available to the birth parent(s) to the child. Post-Placement Medical Care; Emergencies. In case of an emergency involving the adoptive child, the Prospective Adoptive Parents agree to administer to the child's needs first, seeking any medical care which may be needed, then to contact the Agency as soon as possible to inform the Agency as to the nature of the emergency and the child's status. The expense of all post-placement medical care for the child is the responsibility of the Prospective Adoptive Parents, who are required to have comprehensive medical insurance coverage in place at the time of placement. Travel Before Finalization. Until the finalization of adoption, the Prospective Adoptive Parents must inform and obtain the approval of the Agency of any travel plans which would take the child out of the state in which the child was placed by the Agency for more than 7 days. Finalization of Adoption. The Prospective Adoptive Parents agree to legally finalize the adoption of the child in the state where the Prospective Adoptive Parents reside as soon as permitted under applicable state law. For Florida residents, legal fees paid to the Agency include the expense of finalization of adoption in Palm Beach County, Florida, by the Agency's legal counsel. Non-Florida residents are responsible for obtaining and compensating counsel in their home state to finalize the adoption. Non-residents' home states may require local social worker's reports, filing fees, and other expenses which are the sole responsibility of the Prospective Adoptive Parents. Request by Prospective Adoptive Parents for Removal of Child. The Agency will act as expeditiously and promptly as possible to make alternate arrangements for placement in the event that the Prospective Adoptive Parents request that the child be removed prior to finalization of the adoption for any reason. Non-Placement. In the event the Prospective Adoptive Parents are matched with a birth mother but no placement ultimately occurs, the Agency shall continue its best efforts, as set forth in paragraph I.A., above, to cause a placement to occur within the two year term of this agreement, with no additional fee required. Any "At-Placement" fees, except for medical expenses actually incurred by the Agency, will be refunded. Section V of the Domestic Contract addressed the subject of "assumption of risks and release of agency liability." It provided, in pertinent part, as follows: In adoption placement situations there are risks which may or may not be known to the Prospective Adoptive Parents, the Agency, its staff, or others involved. Such risks usually involve legal or medical issues and may be either significant or of little concern. Notwithstanding the best efforts of the Agency and its staff and consultants, some risks may not be knowable or known. Acknowledging this, the Prospective Adoptive Parents hold the Agency harmless and assume the risks of adoption as follows: Change of Prospective Adoptive Parents' State of Resident. . . . Social and Medical History of Child. The Agency will provide the Prospective Adoptive Parents prior to "matching" with all available social and medical history of the birth mother, birth father and child to the extent deemed relevant by Agency staff. Any changes in information will be reported to the Prospective Adoptive Parents as they become known. At the earliest possible moment, but in any event prior to finalization of the adoption, the Prospective Adoptive Parents will be provided with written reports of this information. To a large extent, the information is obtainable only from the birth parents and is thus subject to unreliability. The Prospective Adoptive Parent(s) agree to hold Adoption Advisory Associates free from all liabilities arising from the provision of incorrect information. Gender and Other Characteristics of Child. The gender of a prospective adoptive child cannot always be accurately predicted at the time of matching, nor can the Agency predict an adoptive child's future personality, medical problems, learning disabilities, appearances or inherited characteristics. Non-availability of Identified ("Matched") Child for Adoption. While the Agency agrees to make every reasonable effort to see that a "matched" child is available for placement and adoption immediately after birth, the Agency is unable to guarantee such availability given the nature, extent, and variability of the legal and medical risks involved. The Prospective Adoptive Parents assume all risks, both known and unknown, that may at any time impair, delay, or preclude readiness or availability of a "matched" child for placement after birth. (It is specifically understood that Florida law precludes the possibility of the Agency entering into a placement contract with the birth parents prior to the birth of a child to assure placement.) Rights of Birth Father. The birth father of a child, whoever and wherever he is, has a right to due process of law with regard to all legal events concerning the child and he has a right to petition the court and make a claim, if he so desires, for the custody of the child unless he has surrendered the child for adoption, has executed a denial of paternity, or his parental rights have been terminated by a court of competent jurisdiction. The Agency's attorney will address birth fathers' rights as required by law. These efforts are dependent upon the Agency's receiving reliable information from birth mothers as to the identity and whereabouts of birth fathers. (The Prospective Adoptive Parents will be advised prior to matching if a birth mother states that she does not know the identity and/or location of the birth father.) Accordingly, the Prospective Adoptive Parents will hold the Agency harmless for any errors caused by misinformation provided by the birth mother to the Agency. Disruption of Placement. It is possible that a birth mother or birth father who has surrendered a child for adoption may make an attempt to revoke his or her surrender before finalization of the adoption. Should the Agency be unable, despite its best efforts, to resolve such a situation without resort to judicial proceedings, it may be the Agency's decision to return custody of the child to its birth mother and/or birth father unless, in its sole discretion, the Agency were to determine that some other plan, including remaining in the adoptive home, was in the best interests of the child. Should this be the case, the Prospective Adoptive Parents will have the option of undertaking the expense of any resulting judicial proceedings in an effort to maintain the placement, or may choose to relinquish the placement with no further rights or responsibilities. In any event, in the Agency's sole discretion, the child may be removed from the adoptive home and placed in Agency foster care until the child's final legal status is determined. Non-acceptance or Relinquishment of Placement. The Prospective Adoptive parents may, at any time, decline to accept placement of a particular child for adoption, or, having accepted placement, decline to continue such placement. Nevertheless, if after birth the Agency, within its sole discretion, determines the said child to be adoptable, the Prospective Adoptive Parents will be responsible for all costs relative to foster placement of the child and for all services to the extent other payors are not legally responsible, unless and until (a) an adoption with other parents is completed or (b) legal responsibility is accepted by other persons or agencies. Provided, however, that the Prospective Adoptive Parents will not be responsible for such costs if the Agency, in its sole discretion determines that said child is not adoptable for medical, social, or legal reasons. Agency Legal Error. . . . Risk of Error of Other Professionals. . . . Private Agreements With Birth Parent(s) Unenforceable. No promises or representations made to the Prospective Adoptive Parents by a birth parent are enforceable by the Agency or a court. Section VI of the Domestic Contract contained the following "miscellaneous" provisions, among others: Accurate Information from Prospective Adoptive Parents. The Prospective Adoptive Parents have completed Agency application materials and submitted a biographical photo album and certain required documentation, all of which are incorporated herein by this reference, and understand that any inaccurate information provided constitutes grounds for termination of this agreement by the Agency and forfeiture of any fees paid to the Agency. . . . D. Prospective Adoptive Parents as Agents for One Another. The Prospective Adoptive Parents are the agents for one another for the purpose of the Agency's reliance upon any communication, decisions, or agreements between the Agency and the Prospective Adoptive Parents. . . . Termination. This agreement shall terminate two (2) years from the date hereof or upon finalization of the adoption of a child placed by the Agency with the Prospective Adoptive Parents for that purpose, whichever occurs earlier. Provided, however, that the obligations of the Prospective Adoptive Parents to provide the Agency post-adoption pictures and written updates on the child's progress shall survive until the child is eighteen (18) years of age. The Agency, in its discretion, reasonably applied, may terminate its relationship with the Prospective Adoptive Parents, if it is determined by the Agency, after consultation with the Prospective Adoptive Parents, that the Agency's program and the Prospective Adoptive Parents' goals, expectations, and/or intentions regarding adoption are incompatible. Limitation of Actions. No claim in contract or tort arising from the obligations or subject matter of this agreement shall be maintained unless brought within one (1) year of the termination of this agreement. Entire Agreement/Severability. This agreement, including the Agency's current Summary of Estimate Fees & Expenses and Refund Policy, attached hereto, sets forth the entire, sole, and exclusive understanding of the parties. No promises or representations previously or contemporaneously made are enforceable. Any changes in this agreement must be in writing and signed by the party to be charged with any new or modified undertaking. If any portion or portions of this Agreement are found by a court of competent jurisdiction to be unenforceable, the remaining Agreement shall remain in full force and effect, except as provided elsewhere herein. The Domestic Contract (including the fee schedule included therein) was reviewed by the Department before it issued Petitioner a full-year regular license in 1998. At that time, the Department did not find the contract to be objectionable. Licensed Foster Homes Available for Petitioner's Use (Alleged Violations of Rules 65C-15.002(7) and 65C-15.025, Florida Administrative Code) In April of 1998, Petitioner submitted to the Department the materials necessary for Edward and Irene Petow to obtain a license to operate a foster home for Petitioner's use. 3/ The Department issued the Petows such a foster home license on May 10, 1998. The Petows' foster home license expired on April 30, 1999, and was not renewed. During the period that their license was in effect, the Petows were available to provide foster care services for children needing such services who had been placed in Petitioner's care. Jewish Adoption and Foster Care Options (JAFCO), which has been at all times material to the instant case a Florida- licensed foster care provider, 4/ is presently willing and available to provide foster care services to these children (pursuant to an agreement it has with Petitioner), as it has been since Petitioner's inception. 5/ Audit of Petitioner's Financial Records (Alleged Violation of Rule 65C-15.010(3), Florida Administrative Code) Petitioner has only had its financial records audited twice during the time it has been licensed. The first audit was completed in or around June of 1997, at which time a report of the audit was prepared and submitted to the Department. This audit was for the fiscal year ending April 30, 1997. (Petitioner's fiscal year runs from May 1 to April 30.) The accountant who conducted the audit, Aubrey Bourgeois, CPA, made the following "proposal" to Petitioner based upon his findings: Through the course of the audit process it was evident that the association administrator, Ms. Cheryl Eisen, had spent an enormous amount of time maintaining the financial records of the organization. We would like to propose that the accounting functions, including the bank reconcilliations and financial statement preparation be handled by our office on a monthly basis, therefore freeing Ms. Eisen for the day-to-day business and administrative duties. This would also allow us to prepare the accounting information according to generally accepted accounting principles. This would lessen the time needed to verify information during the year end audit. The only accounting functions that Ms. Eisen would need to continue to perform would be the cash receipts and cash disbursements. . . . In the licensing report, dated June 12, 1997, which was signed by the District Administrator and his staff and contained the recommendation that Petitioner "receive a regular child- placing license, effective June 14, 1997, expiring April 30, 1998," the following statement regarding Mr. Bourgeois' "proposal" was made: After reviewing all documentation, the department continues to have concerns regarding internal controls and the organizational structure of the governing body. The following changes are strongly recommended by the department: 1. The department agrees with the proposal submitted by the auditor, that the accounting functions, including bank reconciliations and financial statement preparation be handled by the accountant's office on a monthly basis. The auditor's report indicated several possible weakness in the internal control structure of the agency, under the present system. . . . At no time, however, did the Department ever order Petitioner to make this "change" proposed by Mr. Bourgeois. Petitioner did not follow the suggestion made by Mr. Bourgeois (and endorsed by the Department) because, in its opinion, it would have been too expensive for it to have done so. (Many small businesses, like Petitioner, do not have an accountant perform "accounting functions" on a monthly basis because of cost considerations.) Petitioner's inaction did not prevent it from obtaining a full-year regular license in 1998. As noted above, the 1998 "licensing report" prepared by Department staff, a copy of which Petitioner received along with its licensure certificate, indicated that the audit of Petitioner's financial records "need[ed] to be completed and submitted by June 30, 1998." The June 30, 1998, deadline passed without the Department having received any audit report from Petitioner. By letter dated October 14, 1998, Ms. Willson "remind[ed]" Ms. Eisen that the report of Petitioner's May 1, 1997-April 30, 1998, fiscal year audit, which Petitioner had been directed to file by June 30, 1998, had not yet been received by the Department and that it was "imperative" that the Department receive the report "as soon as possible" inasmuch as "[a]n annual audit is a requirement of the licensing process." By March 2, 1999, despite Ms. Willson's "remind[er]," the Department had still not received an audit report from Petitioner for the May 1, 1997-April 30, 1998, fiscal year. Accordingly, as indicated above, in her letter to Petitioner of that date advising Petitioner of relicensing requirements, Ms. Willson warned Petitioner that if it did not submit, on or before March 23, 1999, an audit report for the previous fiscal year, "corrective action" would be taken. On March 23, 1999, Petitioner provided the Department with an audit report for the fiscal year ending April 30, 1998. In April of 1999, Ms. Eisen was hospitalized with a broken arm and leg as a result of an accident. She was in the hospital and in in-patient rehabilitation for more than a month. During this period of time she was unable to gather the records Petitioner's accountant, Mr. Bourgeois, needed to complete the audit for the fiscal year ending April 30, 1999. On or about June 30, 1999, Petitioner delivered to Mr. Bourgeois the records necessary for him to complete an audit for the fiscal year ending April 30, 1999. By letter dated July 15, 1999, Petitioner informed the Department that the audit for the fiscal year ending April 30, 1999, would be completed on or about August 15, 1999. When Ms. Eisen received the Department's July 15, 1999, Notice of Intent, she instructed Mr. Bourgeois to discontinue work on the audit for the fiscal year ending April 30, 1999, because, as she later explained to the Department, she wanted "to avoid the expense of a report [Petitioner was] no longer obligated to provide to the Department." Upon subsequently learning that the Department had granted Petitioner a one-year Restricted Certificate, effective July 31, 1999, Ms. Eisen requested Mr. Bourgeois to resume his work on the audit. By letter dated August 10, 1999, Ms. Eisen advised Ms. Willson that the audit would "be delayed until September." As of the time of the final hearing in the instant case, the audit of Petitioner's financial records for the fiscal year ending April 30, 1999, had not yet been completed. Verification of Screening Requirements (Alleged Violation of Rule 65C-15.016(2)(b), Florida Administrative Code) Before working as outside legal counsel for Adoption Connection, Ms. Eisen (who is the only remaining non-clerical employee of Petitioner's 6/ ) was screened by Adoption Connection and, on or about September 2, 1993, she received "clearance" from Adoption Connection (based upon Adoption Connection's determination that she met screening requirements). Ms. Oken and Ms. Petow also had been screened by, and received "clearance" from, Adoption Connection. Ms. Oken was fired by Adoption Connection in March of 1995, at the same time Ms. Eisen's services were terminated by the agency. Ms. Petow continued working for Adoption Connection until some time prior to February 2, 1996 (the date she was hired by Petitioner). When Petitioner was seeking its initial license in 1996, Ms. Willson's predecessor advised Ms. Eisen that the "clearance" she, Ms. Oken, and Ms. Petow had received from Adoption Connection could be "transferred" and that she and her colleagues did not need to undergo re-screening to be employed by Petitioner. 7/ As noted above, the 1998 "licensing study" prepared by Department staff noted that "[s]creening documentation ha[d] been kept up-to-date," but that Ms. Eisen would "be due for 5-year re- screening in July 1998, which would include FDLE and local law checks." Ms. Oken and Ms. Petow (both of whom continued to work for Petitioner through at least June 30, 1999) were never re- screened. As of the time of the final hearing in the instant case, Ms. Eisen had not been re-screened either; however, subsequent to the close of the hearing (as reflected by Petitioner's post-hearing submissions supplementing the evidentiary record), she submitted to re-screening. The criminal records check revealed no disqualifying offenses. (The evidentiary record is silent as to whether the Florida Protective System Abuse Registry portion of the re-screening has been completed.) Training of Petitioner's Staff (Alleged Violation of Rule 65C- 15.018(2), Florida Administrative Code) On June 30, 1999, when Ms. Willson reviewed Petitioner's personnel files, Petitioner had four non-clerical employees: Ms. Eisen; Ms. Oken; Ms. Petow, who, in addition to providing foster care services, worked for Petitioner as a birth mother support coordinator; and Marla Gross, Esquire, who was a staff attorney. Petitioner's personnel file for Ms. Eisen revealed that: her date of hire was February 2, 1996; during her last full year of employment (from February 2, 1998 to February 1, 1999), she had received "additional training" by attending the "Governor's Children Summit" (on February 12, 1998), The Florida Bar Family Law Section's "Legislation Seminar" (which lasted in excess of 15 hours over a three-day period, from March 26, 1998 to March 28, 1998), a "NACAC" 8/ conference (in August of 1998 9/ ), and an "Assoc. Fam. and Con. Courts" conference (in October of 1998 10/ ); and since February 2, 1999, she had obtained further "additional training" by participating in the activities of the "S.W. Fla. Adopt. Task Force" (in March of 1999). Petitioner's personnel file for Ms. Oken revealed that: her date of hire was February 2, 1996; during her last full year of employment (from February 2, 1998 to February 1, 1999), she had received "additional training" by attending a three-hour presentation given on February 20, 1998, on "domestic violence and clinical interventions" sponsored by Women in Distress of Broward County, Inc., a two-hour program held on March 9, 1998, on "domestic abuse" sponsored by the Jewish Federation of South Palm Beach, and a three-hour seminar conducted on January 19, 1999, on "psychological issues in [the] treatment of sexual violence" sponsored by the 45th Street Mental Health Center, Inc.; and since February 2, 1999, she had obtained further "additional training" by attending a two-hour seminar conducted on March 23, 1999, on "violent attachments" sponsored by the 45th Street Mental Health Center, Inc. Petitioner's personnel file for Ms. Petow revealed that: her date of hire was February 2, 1996; during her last full year of employment (from February 2, 1998 to February 1, 1999), she had received "additional training" by attending the "Governor's Children Summit" on February 12, 1998, and by being a "part-time student pursuing [a] social work degree." Petitioner's personnel file for Ms. Gross revealed that Ms. Gross' date of hire was January 12, 1999, and contained no indication that she had received any training in the five and a half months that she had been employed by Petitioner (from January 12, 1999 to June 30, 1999). Foster Parent Training (Alleged Violation of Rule 65C-15.027(1), Florida Administrative Code) Petitioner did not provide foster parent training to the Petows. Ms. Eisen was under the impression that Petitioner, as a private agency, was not required to provide such training. She discussed the matter with Jodi Peterson, a Department employee assigned to the Department's District 9 MAPP Unit, who, on June 17, 1999, by facsimile transmission, advised Ms. Eisen that, "[a]s [Ms. Eisen] had said, trng. hrs. aren't required for private relicensure." 11/ Pre-Placement Screening: The James Case (Alleged Violation of Rule 65C-15.028, Florida Administrative Code) Lori and Jesse James were clients of Petitioner's. Ms. James was a Florida-licensed attorney, who was not engaged in the active practice of law. (She worked for a social services agency in Tampa.) The Jameses were matched with a birth mother residing in Illinois. The birth mother gave birth in a hospital in Chicago. The child tested positive for cocaine exposure at the time of birth. Accordingly, a plan for placement with someone other than the birth mother had to be devised before the child could be released from the hospital. On August 12, 1998, after the child was born, a home study was conducted in the James home. Subsequently, Ms. James left to go to Chicago to take custody of the child and bring the child back to her and her husband's home in Tampa. Mr. James did not accompany his wife on this trip. The child's guardian consented to the child's adoption by the Jameses and took the necessary steps to have the child delivered to Ms. James, who, until her departure from Chicago, kept the child in her hotel room. At the time of the placement of the child with Ms. James, a determination had not been made that both Ms. and Mr. James met screening requirements. It was not until August 20, 1998, that all background screening of the Jameses was completed and Petitioner was able to conclude that the Jameses "met the pre-adoption requirements of Fla. Statutes 63.092(2)(b)." Ms. James returned from Chicago to her home in Tampa with the child sometime after August 20, 1998. Services to Adoptive Parents (Alleged Violation of Rule 65C- 029(2) and (3), Florida Administrative Code At all times material to the instant case, Petitioner's social worker has had post-placement contact with each adoptive family (who has adopted through Petitioner) on at least a monthly basis prior to the finalization of the adoption (which takes at least 90 days from the date of placement). Sometimes (usually no earlier than the third month after placement) the contact has been made by telephone. There have been instances where a month has passed without Petitioner's social worker having had face-to-face contact with an adoptive family; however, Petitioner, in good faith, believed that, for purposes of compliance with Rule 65C- 15.029(2), Florida Administrative Code (which mandates that the agency's social worker "visit" with adoptive parents "at least monthly, after the placement of a child, until the adoption is finalized"), "visiting" by telephone was acceptable. Family Case Records (Alleged Violation of Rule 65C-15.032(1), Florida Administrative Code) The record lacks persuasive competent substantial evidence establishing that, in any particular case, Petitioner has failed to include in its files available information (concerning the family of a placed child) that Rule 65C- 15.032(1), Florida Administrative Code, requires a child-placing agency to include in its records. Adoptive Home Records (Alleged Violation of Rule 65C-15.034(5) and (8), Florida Administrative Code) The record lacks persuasive competent substantial evidence establishing that, in any particular case, Petitioner has failed to include in the files it maintains the summaries of adoptive family contacts required by Rule 65C-15.034(5) and (8), Florida Administrative Code. Compliance with INS Regulations (Alleged Violation of Rule 65C- 15.036(3), Florida Administrative Code) In or about 1999, Petitioner received a telephone call from Cynthia Reilly, the estranged adult daughter of a client of Petitioner's, who alleged that her father had been abusive when she had been a child. Ms. Reilly's father and his wife (Ms. Reilly's step-mother) were seeking to adopt a Romanian child with Petitioner's assistance. Petitioner had already prepared a home study and submitted it to the Immigration and Naturalization Service (INS) at the time it received Ms. Reilly's telephone call. There was no "verifiable record" that the abuse about which Ms. Reilly complained had occurred. Petitioner contacted Ms. Reilly's father, who denied the allegations made by his daughter, and requested him to undergo psychological testing. The father complied. Following the preparation of the psychological report, Petitioner submitted it, along with an addendum to the previously submitted home study, to the INS. INS requested that further psychological testing be performed. Petitioner advised Ms. Reilly's father of this request, and he agreed to undergo such additional testing. The psychologist who conducted the additional testing found no impediment to Ms. Reilly's father becoming an adoptive parent, and so indicated in the report he prepared. This report, like the first psychological report, was sent to INS, together with another addendum to the home study. At the time it first heard from Ms. Reilly, Petitioner had asked her to reduce her allegations against her father to writing and to provide her written statement to Petitioner. After receiving the reports of the psychologists, Petitioner repeated its request Ms. Reilly, however, continued to refuse to provide Petitioner with any written allegations against her father. She did, though, furnish the INS with such a document. At first, she refused to give INS permission to provide Petitioner with a copy of this document, but she finally acquiesced. After reviewing Ms. Reilly's written allegations against her father, Petitioner determined that an independent evaluation of the case should be performed. Sarah Franco of JAFCO performed this independent evaluation. She concluded that family counseling was necessary. When Petitioner told Ms. Reilly's father that there would need to be family counseling, her father told Petitioner, "Well, I'm finished with you all." Ms. Reilly's father and Petitioner thereupon terminated their contractual relationship. Release of Information Regarding Romanian Adoption Law The record lacks persuasive competent substantial evidence that Petitioner, at any time, knowingly disseminated inaccurate or misleading information about the law governing adoptions of Romanian children. Client/Birth Mother Complaints Concerning Petitioner's Fees (Alleged Violation of Rule 65C-15.010(4)(b), Florida Administrative Code) and "Business Practices" The Kellers (Ted and Susan) and Petitioner entered into a Domestic Contract, which had an effective date of December 29, 1996, and an expiration date of December 26, 1998. During the first year of the contract, the "biographical photo album" (referred to in Section VI of the contract) that the Kellers had submitted to Petitioner was shown "a few times," but the Kellers were not selected by any of the birth mothers who had viewed the album. During the second year of the contract, the Kellers were selected by a birth mother from Alabama. The birth mother came to South Florida to meet with, and be counseled by, members of Petitioner's staff. Petitioner paid for the birth mother's transportation expenses. The birth mother spent three or four days in the South Florida area, during which time she stayed in an apartment rented and maintained by Petitioner for the purpose of housing out-of- town birth mothers. The birth mother assured the Kellers that she would, following the birth of her child, consent to the Kellers adopting the child. Petitioner made a good faith, but unsuccessful, effort, prior to the child's birth, to contact the child's birth father. Based upon what it had heard from others, however, Petitioner was led to believe that the father would also give his consent to the adoption. Petitioner, though, never guaranteed the Kellers that "there would not be a problem" with obtaining the birth father's consent. The birth mother decided to give birth in Alabama, rather than in South Florida. The child was born in or about May of 1998. Petitioner contacted an Alabama attorney to help handle the adoption. When Ms. Eisen learned that there might be a problem with the adoption, she traveled to Alabama at Petitioner's expense. The adoption "fell-through" because the birth mother and father, after the birth of the child, refused to give their consent. The Kellers subsequently expressed an interest in adopting a Romanian child. On October 15, 1998, the Kellers and Petitioner entered into an International Adoption Services Contract (International Contract). With respect to the fees to be paid by the Kellers to Petitioner under the International Contract, the Kellers were given a credit for monies that they had paid Petitioner pursuant to the Domestic Contract. Section I of the International Contract described the "agency's undertaking, services and exclusions" and provided, in part, as follows: Agency's Undertaking. The Prospective Adoptive Parents request, and the Agency is willing to provide, international adoption services with the goal of providing to the Prospective Adoptive Parent(s) an offer of placement of an adoptable child from the country of Romania ("the home country") in the Prospective Parent'(s') home at the earliest possible moment. The Agency agrees to make a diligent effort to place such a child with the Prospective Adoptive Parent(s) in accordance with the social service policies and procedures of the Agency, as established and from time to time amended by the Agency's Board of Directors, and in accordance with federal and Florida statutory and administrative law, and the laws of the home country. Agency Services. The Agency's international adoption services include, but are not limited to, every aspect of assisting the Prospective Adoptive Parent(s) through departure for the home country and upon return, including interface with the United States Immigration and Naturalization Service (INS), and coordination with the agency in the home country ("the foreign agency"). . . . Section II of the International Contract addressed the subject of "fees." It provided as follows: Basis for Determining Fees. Pursuant to Florida Administrative Code section 65C- 15.019(4)(b), the Agency's adoption fees have been established based on the reasonable costs of the following services for the total international adoption program, including but not limited to: (1) home study services; (2) counseling services; (3) legal services; (4) foster care services; (5) pre- and post- placement social services; (6) contracted services with foreign agencies; (7) other necessary services, including "dossier" preparation; and (8) agency facilities and administrative costs. Estimated Fees. The Agency's estimated fees statement ("Fee Statement") is attached and incorporated in this agreement by this reference. The Prospective Adoptive Parent(s) Acknowledge(s) the Fee Statement has been thoroughly reviewed by him/her/them with Agency staff and it is completely understood and accepted. Timing and Manner of Payment of Fees. A Home Study Services Fee will have been paid to the Agency prior to execution of this agreement. The "At Contract" fees shown on the Fee Summary are due upon the execution of this agreement, after the Agency's approval of the Prospective Parent's(s') home study. The "Upon Match" fees shown on the Fee Statement, payable to "AAA Escrow Account" ("Escrow") are due in the form of a cashier's check at the time the Prospective Adoptive Parent(s) accept(s) the match, as described in paragraph III, below. Section III of the International Contract addressed the subject of "matching, placement, and finalization of adoption." It provided as follows: Matching. Identification of a child for adoption by the Prospective Adoptive Parent(s) ("matching") will occur by means of his/her/their receiving through the Agency pictures and background information on children fitting their specific requests as to age, gender, medical and social background, within the limitations generally known to attend adoptions from the home country, as more particularly described to the Prospective Adoptive Parents by the Agency. Placement. Placement of the child with the adoptive parents occurs in the country, to which at least one of them (if a married couple) must travel to take placement. Finalization of Adoption. The final legal adoption of the child with the adoptive parents will occur in the home country prior to the child's departure to the United States with the Prospective Adoptive Parent(s). Among the subjects addressed in Section V of the International Contract was "re-finalization of adoption." The following provision in Section V dealt with this subject: D. Re-Finalization of Adoption. The Prospective Adoptive Parent(s) agree(s) to legally re-finalize the adoption of the child in the state where the Prospective Adoptive Parent(s) reside(s) as soon as permitted under applicable state law. For Florida residents, legal fees paid to the Agency include the expense of re-finalization of adoption in Palm Beach County, Florida, by the Agency's legal counsel. Non-Florida residents are responsible for obtaining and compensating counsel in their home state to re-finalize the adoption. Non-residents' home states may require local social worker's reports, filing fees, and other expenses which are the sole responsibility of the Prospective Adoptive Parent(s). Nevertheless, it is understood that the adoption is legally finalized in the home country before the child immigrates, such that all rights and responsibilities for the child pass to the Prospective Adoptive Parent(s) at that time. Paragraph E of Section V of the International Contract addressed the subject of "non-placement" and provided as follows: In the event the Prospective Adoptive Parent(s) are matched with a child but no placement ultimately occurs, the Agency shall continue its best efforts, as set forth in paragraph I.A., above to cause a placement to occur, unless the Prospective Adoptive Parent(s) elect to cancel the contract and receive a refund of all fees remaining in Escrow pursuant to this contract. In Section VI of the International Contract, the subject of "assumption of risks and release of agency liability" was addressed. This section provided as follows: In adoption placement situations there are risks which may or may not be known to the Prospective Adoptive Parent(s), the Agency, its staff, consultants or other third parties involved, hereinafter referred to collectively as "the Agency" in the context of limitations or release of liability. Such risks usually involve legal or medical issues and may be either significant or of little concern. Notwithstanding the best efforts of the Agency and its staff and consultants, some risks may not be knowable or known. Acknowledging this, the Prospective Adoptive Parents hold the Agency harmless and assume the risks of adoption as follows: Change of Prospective Adoptive Parent's(s)' State of Residence. . . . Social and Medical History of Child. . . . Gender and Other Characteristics of Child. Though the Prospective Adoptive Parent(s) may specify the gender of the child to be adopted prior to matching, the Agency cannot predict an adoptive child's future personality, medical problems, learning disabilities, appearance or inherited characteristics. Age of Child at Time of Placement/Non- availability of Identified ("Matched") Child for Adoption. It is anticipated that your child will be no more than eight (8) months old at the time you travel to the home country to take placement of him/her for adoption. This is based upon the normal course of the process for freeing a child for adoption and approving a U.S. placement as that process is presently defined. Nevertheless, delays could occur such that the child would be older at the time of placement. Should a delay occur such that Child will be more than one year old at the time of immigration, the Prospective Adoptive Parent(s) may elect not to take placement of the child, but request a match with another child at the earliest possible moment, or cancel this contract and receive a refund of all fees remaining in Escrow. Additionally, while the Agency agrees to make every reasonable effort to see that a "matched" child remains available for placement and adoption from the home country, the Agency is unable to guarantee such availability given the nature, extent, and variability of the political, legal and medical risks involved. The Prospective Adoptive Parent(s) assume all risks, both known and unknown, that may at any time impair, delay, or preclude the readiness of availability of a "matched" child for placement for adoption. Non-acceptance of Placement. An unadoptable child is a child suffering a medical condition that would cause the child to have other than a normal quality of life, as apparent at the time of placement, or that is not legally free for adoption. The Prospective Adoptive Parent(s) may, at any time, decline to accept placement of an unadoptable child, and request a match with another child at the earliest possible moment, or cancel this contract and receive a refund of all fees remaining in Escrow. Risk of Error of Other Professionals. . . . Private Agreements With Third Parties Unenforceable. No promises or representations made to the Prospective Adoptive Parents by any third party are enforceable by the Agency and are not the responsibility of the agency to enforce. Section VII.G. of the International Contract covered the subject of "termination" and provided as follows: The Agency, in its discretion, reasonably applied, may terminate its relationship with the Adoptive Parent(s), if it is determined by the Agency, after consultation with the Prospective Adoptive Parent(s), that the Agency's program and Prospective Adoptive Parent's (s') goals, expectations, and/or intentions regarding adoption are incompatible. Section VII.H. of the International Contract addressed the subject of "entire agreement/severability" and provided as follows: This agreement, including the Agency's current Fee Statement, and the Agency's agreement with the foreign agency, both attached hereto, sets forth the entire, sole and exclusive understanding of the parties. No promises or representations previously or contemporaneously made are enforceable. Any changes in this agreement must be in writing and signed by the party to be charged with any new or modified undertaking. If any portion or portions of this Agreement are found by a court of competent jurisdiction to be enforceable, the remaining Agreement shall remain in full force and effect, except as provided elsewhere herein. The "release of previous contracts" was addressed in Section VII.I of the International Contract, which provided as follows: This agreement supercedes any previous contracts between the parties and releases the parties from all obligations thereunder. An Addendum to the International Contract was executed by the Kellers on October 19, 1998, and by Petitioner on October 20, 1998. It provided as follows: The agreement for international adoption services ("the Agreement") of even date by and between Adoption advisory Associates ("the Agency") and Susan and Ted Keller ("Susan and Ted") is hereby amended as follows: The home study update fee shall be $750 The fees due "at contract" shall be $852.41 The fees due "upon match" shall be payable as follows: $6,416.68 due upon match; $6,416.66 due 90 days later. $6,416.66 due 30 days before the anticipated date for departure to Romania. Notwithstanding the effect of the foregoing timetable of payments, all fees shall be paid in full prior to departure for Romania. Should Susan and Ted elect to cancel the Agreement as provided in paragraph V.E., VI.D., and VI.E. thereof, the refund amount due shall be $19,250, in full settlement of all Agency obligations hereunder. Provided, however, that the Agency shall not be liable for refund of the $2,500 paid to the foreign agency until sixty (60) days after receipt by the Agency of written notification by Susan and Ted of their cancellation of the contract. On or about December 15, 1998, Petitioner advised the Kellers by facsimile transmission that two Romanian children had been referred to Petitioner. After being provided with health histories of the children, the Kellers indicated, in a December 16, 1998, facsimile transmission, that they were "interested" in one of the children, a boy who had been surrendered by his natural parents and was, at the time, approximately one month old, and that they looked forward to "see[ing] a picture [of the boy] and get[ting] more information [about him] from Romania." Not having received any additional materials concerning the boy, the Kellers, on January 3, 1999, informed Petitioner in writing that they had "decided to cancel [their] contract with [Petitioner], as there seemed [to them that there was] little or no reason to believe that anything [would] materialize." In their written correspondence, the Kellers demanded, among other things, "that $3750.00 be returned" to them. Petitioner did not obtain photographs of the boy until January 11, 1999. Upon receiving the photographs, Petitioner sent them to the Kellers. Later that day, Ms. Eisen spoke with Mr. Keller, who reiterated his and his wife's desire to cancel the International Contract they had entered into with Petitioner. On January 13, 1999, Ms. Eisen sent the following letter to the Kellers: Pursuant to your letter dated January 3, 1999, and as agreed in my telephone conversation with Ted on January 11, 1999, we are cancelling our contract with you dated October 15, 1998, and are sending you the following: your original home study dated 12/29/96; your home study update dated 9/30/97; your DCF Protective Services clearance dated 5/28/98 (all other clearances are now more than one year old and thus outdated); your photo album; our check number 11186 in the amount of $1,602.41. With regard to the refund check, I was able to bring the matter before the agency's Board of Directors last evening at its quarterly meeting. The Board unanimously approved cancellation and a refund in the amount of the check tendered upon signing your international placement contract three months ago, notwithstanding that we have already referred to you a child, Ilie, born November 16, 1998, which you indicated you wished to pursue. Michael and Rasamee Wolf were residents of Maryland. They had previously adopted a child with the assistance of Adoption Connection. In or about June of 1996, the Wolfs submitted to Petitioner an Application for Adoption, a family photograph album, a copy of a home study that had previously been done, and a check made payable to Petitioner. It took Ms. Eisen approximately ten days to contact Mr. Wolf (who traveled quite a bit) and advise him there were "additional requirements that had to be met before [Petitioner] could enter into a contract with [him and his wife]." Mr. Wolf instructed Ms. Eisen to "deposit the check" and told her that he and his wife would "work on getting the stuff in." Ms. Eisen followed Mr. Wolf's instructions and deposited the Wolfs' check. In December of that same year (1996), after some delay, the Wolfs provided Petitioner with the required materials. Thereafter, on December 17, 1996, Petitioner and the Wolfs entered into a Domestic Contract. Prior to the expiration of the contract, after having been offered a match by Petitioner, the Wolfs informed Petitioner that they wished to cancel the contract. Thereafter, Ms. Eisen sent the Wolfs the following letter dated September 22, 1998: This is to confirm my conversation with Mike last week, when we offered you placement of Melanie's child born in Texas on September 11, that you have decided to withdraw from our list of waiting parents. We know this was not an easy decision, but recognize that only you know what is best for your family at this time. Our two-year contract with you expires on December 17, 1998. It is my understanding that you wish to cancel that contract, and we concur. By the contract's terms, there is no refund due to you of fees previously paid. Please sign and return the enclosed copy of this letter to indicate your cancellation of our contract. Your album is being returned under separate cover. We wish you the best and hope to keep in touch. By letter dated October 23, 1998, Michael Salnick, Esquire, an attorney retained by the Wolfs, advised Petitioner that the Wolfs disagreed that they were not entitled to a refund and he demanded that Petitioner "send a check in the amount of seven thousand five hundred dollars to [Mr. Salnick's] office payable to Michael Wolf." Petitioner's Board of Directors, at its January 12, 1999, quarterly meeting, voted unanimously not to refund any monies to the Wolfs. Ms. Eisen notified Mr. Salnick of the Board of Directors' action by letter dated January 13, 1999. In August of 1996, Gilda Marin, a single woman in her forties, entered into a Domestic Contract with Petitioner. Ms. Marin paid Petitioner approximately $7,500.00. During the home study, Ms. Marin stated that she wanted "to adopt a newborn Cuban or Caucasian baby girl in good physical and mental health." In addition, in the "Special Situations Questionnaire" that she filled out, she indicated that she would accept an "interracial infant" if it was "Cuban/Caucasian." During the two years that her contract with Petitioner was in effect, Ms. Marin was offered a biracial baby and no other placements. Following the expiration of her contract, she filed a complaint with the Department after being told by Petitioner that she was not entitled to any refund. Upon learning of Ms. Marin's complaint, Ms. Eisen sent the following letter, dated August 9, 1999, to Ms. Marin: Enclosed you will find: (1) a summary by the Florida Department of Children & Families of your complaint against our agency and (2) our response to your complaint. As you will see from our response, we discovered a very big and very regrettable mistake in our handling of your case as a result of the Department's investigation of your complaint. Specifically, we were looking to find for you a child, originally a girl, of Cuban/Caucasian background, not of Cuban or Caucasian background. We assume the Department has already informed you of our desire to offer you a Romanian placement with no "domestic agency fee" charge (a savings of $8,500), as set forth in our response. Though we have not heard back as to your reaction, we have included your name on a list of our current clients we recently submitted to the Department, just in case you might still be interested in considering Romanian adoption. Gilda, I personally hope you will accept our sincere apology for our error in handling your case, and that you will let us make it up to you as proposed. I would like the opportunity of meeting with you at your earliest convenience to discuss the entire matter and, if you are interested, go over what you can expect in terms of time, etc., until match and placement. I would also like you to meet the attorney I hired in January to be exclusively responsible for overseeing the Romanian program. She is presently in Romania, but will return day after tomorrow, so we could see you as early as Thursday. I know that this a particularly busy time for you at the law school, so we would be happy to come to you, either at work or at home. I hope I have managed to convey the depth of our remorse for the disappointment and upsetment we caused you. I know you hesitated to formalize your complaint against this agency, which causes me to believe there may be hope of salvaging our relationship. Please let us hear from you. Ms. Marin responded to Ms. Eisen's August 9, 1999, letter by writing Ms. Eisen and informing her that she did "not wish to continue working with Adoption Advisory Associates any further." There has been no further communication between Ms. Marin and Petitioner. Frank and Suzanne La Barbera entered into a Domestic Contract with Petitioner on January 30, 1997. Inserted on the bottom of the first page of the contract was the following handwritten notation that was initialed by Ms. Eisen and the La Barberas: "No HIV, unsightly facial deformities, blindness, deafness or other life-altering or threatening conditions as known at the time of placement." Before they signed the contract, the La Barberas stated to Petitioner that they had "concerns" that two years (the length of the contract) might not be enough time for Petitioner to find a match for them. While Petitioner, in response to these "concerns" voiced by the La Barberas, may have (truthfully) indicated that, up until that point in time, it had never failed to offer a client a placement, at no time did it guarantee the La Barberas or any other prospective adoptive parent(s) that, prior to the expiration of the contract, they would be offered a placement. Notwithstanding their concerns, the La Barberas entered into a contractual relationship with Petitioner. As Ms. La Barbera testified, they were "desperate." The La Barberas paid Petitioner approximately $6,600.00. Shortly after they signed the Domestic Contract, the La Barberas were advised that they were matched with a birth mother. The La Barberas met with the birth mother in the hospital after the child was born (in or about March of 1997). Following the meeting, the birth mother decided she did not want her child to be placed with the La Barberas and, therefore, no such placement was made. A few months later, the La Barberas were offered a match by an attorney, Stuart Horowitz, Esquire. After seeking and receiving (at no additional cost) Ms. Eisen's legal advice on the matter, the La Barberas declined Mr. Horowitz's offer. In August of 1997, the La Barberas were considering taking a cruise/vacation for which they had to make a nonrefundable deposit. On or about August 17, 1997, they telephoned Petitioner to find out if there were "any prospects of a match for them" that might interfere with their vacation plans. At the time, Petitioner knew of no such immediate "prospects" and so informed the La Barberas. On or about August 19, 1997, the La Barberas made reservations and paid $2,458.00 (by credit card) toward their cruise/vacation. On or about August 23, 1997, Petitioner contacted the La Barberas and told them that it had a match for them. Rather than go on the cruise/vacation they had paid for, the La Barberas chose to stay in South Florida to be at the hospital when the birth mother with whom they had been matched gave birth to her child. The La Barberas lost "close to $2,000.00" of the $2,458.00 they had paid toward their cruise/vacation. When the child was born, it had a cleft lip. Upon being shown the child and noticing the child's cleft lip, Ms. La Barbera ran from the room crying. The La Barberas decided not to take the child. The child was thereupon placed with another couple. Approximately, four weeks after the child was born, the child's lip was repaired. Following the La Barberas rejection of the child, Petitioner's social services director recommended to them that they undergo counseling, a recommendation that they refused to follow. No other placements were offered to the La Barberas during the remainder of the term of their contract with Petitioner. David and Paula Bergeron entered into a Domestic Contract with Petitioner on October 6, 1998. They paid Petitioner approximately $11,500.00 in "contract fees" on that same date. On the agency Application for Adoption and the Department's Adoption Home Application forms that they filled out and submitted, the Bergerons falsely stated that they had never been arrested. Background screening revealed that, contrary to the assertions the Bergerons had made on the aforementioned forms, both of them had arrest records. Ms. Eisen, after learning about the Bergerons' arrest records, asked them to meet with her to explain why they had not revealed these arrests on their applications. At the meeting, Ms. Bergeron claimed that she had forgotten about her prior arrests (which were for shoplifting in 1974 and possession of "dangerous drugs" in 1975), an explanation that Petitioner did not deem to be credible. When he was asked about his failure to disclose his prior arrests, Mr. Bergeron told Ms. Eisen, "I thought that it was your job to do your homework and . . . its too bad. Now that you have discovered it, it's your problem." Following Ms. Eisen's meeting with the Bergerons, she brought the matter of the Bergerons' lack of candor regarding their arrest records to the attention of Petitioner's Board of Directors. By letter dated November 11, 1998, which read as follows, Ms. Eisen informed the Bergerons of the action taken by the Board of Directors: As you know, our Board of Directors considered last night the Executive Directors' recommendation to cancel the agency's domestic adoption services contract with you in light of certain matters of a criminal nature which you failed to disclose in your application to adopt. The Board decided to accept the recommendation of the Executive Directors. Accordingly, you are hereby notified of cancellation of our contract pursuant to section VI, thereto, which provides as follows: "A. Accurate Information from Prospect[ive] Adoptive Parents. The Prospective Adoptive Parents have completed Agency application materials . . . and understand that any inaccurate information provided constitutes grounds for termination of this agreement by the Agency and forfeiture of any fees paid to the Agency." Notwithstanding that the terms of the contract do not entitle you to any refund of contract fees, the Board has authorized a refund of $5,000.00 pursuant to the spirit of the general refund policy shown on the back of the Fee and Expense summary attached as the last page of the contract. A check in that amount and your photo album will be sent to you within fifteen (15) days. On or about November 27, 1998, Petitioner sent the Bergerons a refund check in the amount of $5,000.00, which the Bergerons subsequently cashed. In December of 1997, Mitchell and Tamra Brandt met with Ms. Eisen and Ms. Oken to discuss the possibility of Petitioner providing the Brandts with domestic adoption services. During the meeting, the Brandts were shown, but never asked to sign, a Domestic Contract. Although they did not enter into a Domestic Contract with Petitioner, the Brandts did pay Petitioner $1,500.00 to conduct a home study. Everything that needed to be done to complete the home study, including background screening, was done. Background screening revealed that Mr. Brandt had been arrested for grand theft in 1989. On the Application for Adoption form that the Brandts filled out on or about January 28, 1998, and submitted as part of the home study, they failed to disclose this arrest. Background screening further revealed that there had been a report received and investigated by the Boca Raton Police Department on July 13, 1997, that Mr. and Ms. Brandt were involved in a "domestic disturbance." The police report reflected that Ms. Brandt had told the investigating officer that Mr. Brandt had, earlier that evening, "pushed her out their vehicle." Following the completion of the home study, Petitioner advised the Brandts that, if they did not undergo counseling, Petitioner would not be able to "approve" their home study and enter into a contract to provide them adoption services. The Brandts chose not to undergo counseling. Instead, they asked Petitioner for a refund of the $1,500.00 they had paid for the home study. Petitioner refused to give the Brandts a refund. Subsequently, the Brandts went to another child- placing agency, which, for $1,500.00 (the same amount that Petitioner had charged the Brandts), performed a home study and later assisted the Brandts in adopting a baby girl. The record lacks persuasive competent substantial evidence establishing the amount of the fees and costs paid by the Jameses to Petitioner, and the amount of other expenses they incurred, in connection with their adoption of the child with whom they had been matched by Petitioner. On June 30, 1999, Vincent and Patricia Durante entered into an International Adoption Services Contract with Petitioner (the Durantes' International Contract). The provisions of the Durantes' International Contract were substantially similar in all material respects, except as noted below, to the provisions of the (original) International Contract between the Kellers and Petitioner set forth above (the Kellers' International Contract). Unlike the first paragraph of Section VI.D. of the Kellers' International Contract, Section VI.D. of the Durantes' International Contract provided as follows: Age of Child at Time of Placement/Non- availability of Identified ("Matched") Child for Adoption. It is anticipated that your child will be no more than TBD* months old at the time you travel to the home country to take placement of him/her for adoption. This is based upon the normal course of the process for freeing a child for adoption and approving a U.S. placement as that process is presently defined. Nevertheless, delays could occur such that the child would be older at the time of placement. Should a delay of more than 4 months occur, the Prospective Adoptive Parents may elect not to take placement of the child, but request a match with another child at the earliest possible moment. Unlike the Section VII.G. of the Kellers' International Contract, Section VII.G. of the Durantes' International Contract provided as follows: Termination. This agreement shall terminate two years from the date hereof or upon finalization of the adoption of a child placed by the Agency with the Prospective Adoptive Parents for that purpose, whichever occurs earlier. Provided, however, that the obligations of the Prospective Parents to provide to the Agency post-adoption pictures and updates on the child's progress shall survive until the child is eighteen (18) years of age. The Agency, in its discretion, reasonably applied, may terminate its relationship with the Prospective Adoptive Parents, if it is determined by the Agency, after consultation with the Prospective Adoptive Parents, that the Agency's program and the Prospective Adoptive Parents' goals, expectations, and/or intentions regarding adoption are incompatible. The Durantes paid Petitioner approximately $7,000.00. On or about July 6, 1999, the Durantes telephoned Petitioner and advised that they had heard of a possible adoption opportunity in California that they were interested in investigating. On or about July 8, 1999, Petitioner sent the Durantes the following letter: Based on your call to us on Tuesday, July 6th, we understand that you would like to come in and discuss some issues related to a potential domestic adoption situation. As such, Cheryl and Sally will be meeting with you and Vince on Tuesday, July 13th. Please note that we have ceased work on your international adoption file until such time and that this will delay the current processing of your paperwork. If you have any questions, please do not hesitate to call. Ms. Eisen and Ms. Oken had a lengthy meeting with the Durantes on July 13, 1999, concerning the "potential domestic adoption situation" in California. The Durantes were not charged any additional monies for the time Ms. Eisen and Ms. Oken spent meeting with them. In or about August of 1999, the Durantes advised Petitioner that the "potential domestic adoption situation" in California had fallen through and that they were once again interested in pursuing an international adoption. Petitioner thereupon worked with the Durantes to gather the documentation that would be necessary to effectuate an international adoption. The Durantes had indicated that they wanted to adopt a girl. In or about October of 1999, Petitioner informed the Durantes that there was a Romanian girl named Elena potentially available for adoption through Petitioner. On or about October 12, 1999, the Durantes got back with Petitioner and advised that they did not want to be considered as potential adoptive parents for Elena. By letter dated October 21, 1999, the Durantes' attorney, Holly Davidson Schuttler, Esquire, requested a refund of the monies the Durantes had paid Petitioner. Petitioner responded to this request by letter dated October 25, 1999, from Ms. Eisen to Ms. Schuttler, in which Ms. Eisen stated, in pertinent part, the following: In conclusion, we have never "misrepresented" our status to the Durantes, nor have they been "deceived." They have lost no money, and any time lost has been attributable to their own delays. If the Durantes wish to cancel their contract, all monies, other than the cost deposit (less funds already expended) are non-refundable as per the contract. We are prepared to continue our services to the Durantes until a placement occurs, as long as we have their cooperation. I believe it would be beneficial for us to discuss this matter in person or by phone to further clarify the situation and to satisfy you and the Durantes of the security of their position with this agency. The Durantes and their adoption are very important to the agency and me, personally, and we will do all that is necessary to see to it that their adoption plans are realized. Not having heard back from Ms. Schlutter, Ms. Eisen, on or about November 3, 1999, sent Ms. Schlutter the following letter: I had hoped to hear from you by now in response to my letter of October 25, 1999. It is important for us to know immediately whether the Durantes are reconsidering their position as expressed in your letter dated October 21, 1999, in light of my response. If the Durantes would like to go forward under the contract, we have work to do to prepare their dossier, which entails expenditure of funds from their costs deposit. We also need to know when they would be in a position to accept a referral as we have children waiting. Finally, I am going to be traveling to Romania on the 6th, and will be in and out of town throughout the month of November. Please let me hear from you by noon on Friday, November 5. Ms. Eisen and Ms. Schlutter spoke on the telephone on November 5, 1999. Ms. Schlutter indicated that she would get back with Ms. Eisen in about a month and let her know about the Durantes' intentions. Approximately a month and a half passed without Ms. Eisen's hearing from Ms. Schlutter. Accordingly, on or about December 22, 1999, Ms. Eisen sent Ms. Schlutter the following letter: Further to our correspondence in October and our brief telephone conversation on November 5, 1999, can you please let us know whether the Durantes are continuing with the program. We have children to refer and work to do on the Durantes' file if they still wish to adopt. Ms. Eisen never received a response to this letter. It has not been shown that Petitioner's adoption fees have, at any time, been based on other than the reasonable costs of necessary services for Petitioner's total adoption program. L. K. gave birth to a baby girl on February 3, 1998. Pursuant to L. K.'s consent, her daughter was surrendered to Petitioner and adopted by one of Petitioner's clients, C. and F. F. On September 20, 1997, Ms. Eisen presented and explained to L. K. the following Acknowledgement of Non- Enforceability of Agreements Between Birth and Adoptive Parents, which L. K. signed that same day: I understand and acknowledge that neither Adoption Advisory Associates nor the courts can enforce any promises, either written or oral between the adoptive couple and myself regarding matters to occur after I surrender my child for adoption. One such promise that C. and F. F. had made to L. K. was that, following the finalization of the adoption, they would send L. K. photographs of her daughter and written updates about the progress of the child every year "around" the child's birthday. The adoption was finalized in October of 1998. As of the date of L. K.'s testimony during the final hearing in this case (February 22, 2000), L. K. had not received from C. and F. F. the promised photographs and progress report for the year ending February 3, 2000.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue a final order in which it denies Petitioner's request that Petitioner be granted another full-year regular license and instead grants Petitioner, pursuant Section 409.175(6), Florida Statutes, a provisional license as described above. DONE AND ENTERED this 13th day of June, 2000, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of June, 2000.
