The Issue The issue is whether Petitioner, Basedeo Ramassar, is eligible for exemption from disqualification from working in a registered or licensed family day care center under Subsection 402.302(3), Florida Statutes.
Findings Of Fact Under Sections 402.301-319, Florida Statutes, the Department of Children and Family Services is the agency responsible for establishing licensing standards for child care facilities and child care personnel. Petitioner, Basedeo Ramassar, is married to Cathy Ramassar; they both reside at 2707 West Airport Boulevard, Sanford, Florida. Cathy Ramassar applied to Respondent to renew her license as a family day care facility at her home at 2707 West Airport Boulevard, Sanford, Florida. As a result of her application, Respondent conducted a Level 2 background screening. As a result of the screening, it was determined that, on March 20, 2000, Basedeo Ramassar had pled nolo contendere to the charge of assignation to commit prostitution, a violation of Section 796.07, Florida Statutes. When Cathy Ramassar was advised that her license would not be renewed because of her husband's violation of Section 796.07, Florida Statutes, she requested an administrative hearing and, shortly thereafter, Mr. Ramassar requested an exemption pursuant to Section 435.07, Florida Statutes. Michael Ingram, District 7 Screening Coordinator, convened a three-person Exemption Review Committee which considered the circumstances surrounding the disqualifying criminal incident, nature of harm to victim, amount of time since the last criminal incident, and the applicant's general history. The Exemption Review Committee relies on the applicant to provide information on rehabilitation. The Exemption Review Committee denied Mr. Ramassar's exemption request based, in part, on the fact that not enough time had elapsed since the 1999 offense and the March 20, 2000, nolo contendere plea and a 1990 domestic battery arrest which occurred prior to his current marriage. This denial was a proper exercise of the authority vested in the Exemption Review Committee. Mr. Ramassar testified that during the afternoon hours of November 26, 1999, he approached an undercover female police officer and "offered her $20 for straight sex." This resulted in his arrest and ultimately, his nolo contendere plea to assignation to commit prostitution. With the help of a supportive wife and members of their church, which he regularly attends, Mr. Ramassar has made a good start on a rehabilitation program. Apparently, he has a good marriage which has withstood the humiliation of public knowledge of his infidelity and criminal involvement; each witness testified to awareness of his criminal involvement. As a part of the exemption process, Subsection 435.07(3), Florida Statutes, requires an assessment of "the nature of the harm caused to the victim"; the only "victim" in this case is Mr. Ramassar's wife, who has not only suffered the public humiliation of her husband's infidelity, but has been denied a license renewal for her day care facility. Mr. Ramassar is regularly employed as a mason and, as a result, except on rare occasions, is away from the day care facility during its normal working hours. Witnesses who had children enrolled in Mr. Ramassar's wife's day care facility expressed little concern with the knowledge that Mr. Ramassar had pled nolo contendere to assignation to commit prostitution.
Recommendation Based upon the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services enter a final order granting Petitioner, Basedeo Ramassar, an exemption from disqualification from employment as a caretaker for children and granting Cathy Ramassar a renewal of her license. DONE AND ENTERED this 12th day of September, 2001, in Tallahassee, Leon County, Florida. JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of September, 2001. COPIES FURNISHED: Craig A. McCarthy, Esquire Department of Children and Family Services 400 West Robinson Street Suite S-1106 Orlando, Florida 32801-1782 George B. Wallace, Esquire George B. Wallace, Esq., PA 700 West First Street Sanford, Florida 32771 Virginia A. Daire, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether petitioner should take disciplinary action against respondent for the reasons (other than the alleged existence of a substantiated indicated abuse report) alleged in the amended administrative complaint?
Findings Of Fact Anderson's Child Care Center at 507 Texas Avenue in Crestview was one of the day care centers Mr. Brown of the Okaloosa County Health Department routinely inspected. Respondent testified without contradiction that she has operated a child care center at her Texas Avenue home since September of 1973, with the exception of the time petitioner closed her down. See Anderson v. Department of Health and Rehabilitative Services, 482 So. 2d 491 as clarified on reh. 485 So. 2d 849 (Fla. 1st DCA 1986). From this evidence it is inferred that she holds a license for a child care center. No evidence suggested otherwise. In the summer and fall of 1985, Lucy's husband Charles lived with her and worked at the child care center. J. S. On July 18, 1985, J.S., who was born January 5, 1982, spent his first day at the Anderson Child Care Center. J.S. was "right about the age [for] learning but c[ould]n't void on command." (T.48). He lacked "the voluntary control" (T.48) to "void on command," but he had learned to restrain himself before attending the Anderson Child Care Center. Although he was toilet trained before he began attending Anderson Child Care Center, he "started having lots of accidents and messing in his pants" (T. 73) after July 18, 1985. When left at the center, J.S. "got where he would throw a fit. He would not want to stay. And when . . . [Mrs. S.] would go pick him up, he would still be crying." (T. 77 ) September 11, 1985, was his thirteenth and final day at the Anderson Child Care Center. On September 12, 1985, A.S.'s mother took her to Eglin Regional Hospital in order to be examined, on account of the redness of her 23-month-old vaginal area. (T.74) J.S. accompanied his mother and sister. Leslie Price Kurtz, an Air Force Officer and pediatrician who saw A.S., diagnosed a rash on her nates as impetigo. In the course of inquiring about A.S., Dr. Kurtz was told by Mrs. S (who relayed information she had received from M.S., 8-year-old brother of J.S. and A.S.) that J.S. did not like to go to the bathroom at Anderson's Child Care Center, which all three S. children attended, because of immodest conditions there. The story Dr. Kurtz got was that the children were directed to use the bathroom at specific times and had no privacy when they did. (T.50) Based on this information, and on Mrs. S's report that J.S. had once been potty trained but had recently regressed, Dr. Kurtz suggested to Mrs. S. that she remove her children from Anderson's Child Care Center. Dr. Kurtz contacted the Department of Health and Rehabilitative Services which, as far as she knew, took no action at that time. In Dr. Kurtz's opinion, "a disturbance . . . had occurred with [J.S.] . . . secondary to the child's behavior as described . . . by the mother." (T.50) J. N. On September 25, 1985, Dr. Kurtz saw J.N. who was brought to her with complaints of an ear infection. There was no mention of any problem with his hands but Dr. Kurtz noticed that J.N., who was 20 months old at the time, had red and macerated fingers. J.N., who was born January 4, 1984, began at the Anderson Child Care Center on July 15, 1985, and attended regularly through September 27, 1985, although he missed a total of nine days, for sickness and other reasons. His parents drove him to the Center on their way to work, dropping him off about seven in the morning, and returned to pick him up about quarter past four in the afternoon. The first day he was there, three or four fingers were swollen a little when his parents picked him up. But in general things seemed to go well, at first. There were no more swollen fingers for two to four weeks and his parents saw him try to sing along with songs and do exercises at home they assumed he had learned at Anderson Child Care Center. There came a point when J.N. began to cry and cling to his mother when he was dropped off at respondent's. From then on, he cried nine times out of ten when he was left at the Anderson Child Care Center and he also frequently chewed on his fingers. One day when his father came for him, J.N. was sitting on the ground looking as if he had been crying. He refused to get up even though his father called him twice. Only after Charles Anderson told J.N. to go to his father did the child go to him. His parents never noticed J.N. chew his fingers before he began at the Anderson Child Care Center and this behavior has all but disappeared since he began attending another child care center. Only during the time he attended Anderson's did his fingers become red, swollen and infected. "[I]t was almost like he had bit right through his fingernails he had been chewing on them so much." Deposition of J.N., p.ll. They have healed completely since he left Anderson's Child Care Center. J.N. was not toilet trained when he started at Anderson's Child Care Center. He was still in diapers. After he had been at the Center two weeks, Mrs. Anderson told his mother that he seemed to have "a bowel movement after naptime when he would be outside playing,"(T.115) and suggested that he "be put on the potty at that time of the day." (T.115) Mrs. N. did not object to this proposal. Thereafter J.N. was placed on the toilet "after naptime" and regularly defecated, without crying or complaining. Child care center personnel did not punish him for accidents. Only after J.N. began at Anderson's Child Care Center, however, did his parents notice J.N. at home "go behind the furniture to go potty. It seemed like he was afraid . . ." (Deposition of J.N., P. 11) J.N. also seems to fear toilets. Id., P. 2. After J.N.'s parents related his circumstances to Dr. Kurtz, Dr. Kurtz concluded that the changes in his behavior were "most likely . . . [attributable to] conditions at Anderson Day Care Center," (T. 52) and contacted HRS. She also advised J.N.'s parents to remove him from Anderson Child Care Center immediately. J.N.'s parents sent him to Anderson Child Care Center the next day nevertheless. [T]hen we talked some more; we decided we would take him out because in -- when you're in the air force, you have your family. But in matter of speaking, the air force can run that family for you -- because if we wouldn't have taken him out of there and the doctor would have found out about it, she could have forced us to take him out of there. Deposition of J.N., P. 19. Respondent learned of dissatisfaction with the care J.N. received at the Center only after the present proceedings began. Toileting Generally In response to petitioner's interrogatories, Mrs. Anderson described toileting procedures at the Anderson Child Care Center. Petitioner offered her description in evidence: Under two years of age, after the parents agree the time for pottie training is to start, The children are exposed to the pottie usually during diaper change time. After pottie training depending on liquid ingestion, weather, child, time of day, and other variables, the children are given an opportunity periodically to use the pottie. If the children are inside they are given the opportunity every hour. If the children are outside they are given an opportunity every 1-1/2 to 2 hours. If the children need to go in the interim they are allowed to do so. If the children are going on a field trip or leave the center they are encouraged to use the bathroom before leaving. The children are also encouraged to use the bathroom right after lunch. The same procedure is employed for the children 2 through 5 and older as is the case with the children under 2 years of age after those children under 2 are pottie trained as above outlined. Usually the children are selected randomly while listening to a story for the purpose of an opportunity to use the bathroom. Petitioner's Exhibit No. 2. Mrs. Anderson's testimony at hearing was consistent with this account, as regards events after July 1, 1985. Staffing On October 9, 1985, Lucy Anderson was at Anderson's Child Care Center all day. At eight that morning Debbie Underwood and Pat Todd arrived and began work. At noon Charles Anderson came home. Thirty minutes later Debbie Underwood left the premises for lunch and at one o'clock Pat Todd left for the day. At 1:30 p.m., Debbie Underwood returned from lunch and Ann Parker reported for work. At half past two, Mr. Anderson left, but Kelley Anderson came home ten minutes later. Both Mrs. Parker and Mrs. Todd left for the day at five, but Kelley helped her mother till six. Between two and three o'clock on the afternoon of October 9, 1985, Arthur Alvin Brown, an inspector with the Okaloosa County Health Department, called at Anderson's Child, Care Center. Mrs. Anderson and three other women supervised the children while Mr. Brown was there. He stayed "probably somewhere in the neighborhood of fifteen, twenty, thirty minutes." (T.89) He counted four children inside sleeping on mats, and approximately 65 outside playing. Because he "knew the licensed capacity was fifty-five [he counted] a number of times." (T.89) Children were coming and going while he was there and he tried to take that into account. No more than five children left during his stay, however. Of the children who respondent's own records reflect were at the Center from two or earlier till three or later on the afternoon of October 9, 1985, four were ten years old, three were nine years old, eight were eight years old, two were seven years old, five were six years old, five were five years old, six were four years old, three were three years old, four were two years old and Matthew Newell was the only one-year-old. Petitioner's Exhibit No. 2. According to respondent's records, 29 other children were at the Center for some part of the time between two and three o'clock that afternoon. The age of one of the children in this group is not clear from the record. Of the others, two were two years old, only Candace Cox was three years old, two were five years old, four were six years old, eight were seven years old, three were eight years old, four were nine years old, three were ten years old and Kevin Barrow was the only eleven- year old. Petitioner's Exhibit No. 2.
The Issue The issue in this proceeding is whether Petitioner Ryan Flint, the minor son of his personal representative and mother, Madeline Flint, should immediately receive developmental services or remain on a waiting list for such services until funding is available.
Findings Of Fact At the time of the hearing, Ryan Flint was three years old and has been identified as being on the "autism spectrum." Autism spectrum puts Ryan at risk of having a developmental disability, but is not itself a developmental disability. Testing at a later date will ascertain whether he actually has a developmental disability. Until such testing can be accomplished, however, pursuant to federal law and long-standing policy, the Department regards Ryan Flint as a client because of his risk status. The parties stipulated that Ryan is eligible for services of the Developmental Services Program. Ryan became a client of Developmental Services on June 20, 2000. Despite the rejection language of the notice of denial letter, Ryan was placed on a waiting list and may ultimately be provided the requested services from Respondent. Currently, there are approximately eight thousand persons who became clients of the Developmental Services Program after July 1, 1999. Ryan was receiving services through Children's Home Society. However, because he turned three years old he no longer qualifies for services under that program. Children's Home Society referred him to Developmental Services for evaluation. Mrs. Flint recalls that the "intake" for services was done May 11, 2000. It was Mrs. Flint's impression from the intake interview that Ryan would receive the requested services. This continued to be her impression when Ryan's service plan was written in June of 2000. Ryan currently receives some occupational therapy services through the local school board. However, these occupational services are limited to those which are only educationally necessary such as writing skills and do not extend to other non-educational skills such as running. A long and complex chain of events and circumstances led to the situation faced by Ryan Flint. Prior to the 1999 legislative session, the Department identified 23,361 Developmental Services clients who were either not getting services from the developmental services program or who were not receiving adequate services. The Department's Legislative Budget Request for fiscal year 1999-2000, included a plan to address the underserved clients over a two-year period. Under this plan, 15,984 of the identified 23,361 clients would be served during fiscal year 1999-2000, with the remaining 7377 clients to be added to the group in fiscal year 2000-2001. The Legislature elected to route the new moneys into the Medicaid Waiver program. That program provided for a 45/55 State/Federal match, under which fifty-five cents of federal moneys would be provided for every forty-five cents contributed by the Florida Legislature. Since most of these clients resided in the community and not in institutions, the program utilized under this plan was not the Institutional Medicaid program, but the Home Community Based Waiver program. The Home Community Based Waiver program, also called the Medicaid Waiver program, differs from the Institutional Medicaid program. The Institutional Medicaid program is an entitlement program. The Medicaid Waiver program is not. Consequently, the moneys which fund the Medicaid Waiver program are limited and claims on such programs must be prioritized. The Legislature directed the Department to prioritize these limited funds in proviso language of the 1999-2000 Appropriations Act: . . . Priorities for this funding, in order, are as follows: 1) Transitions for those requesting transfers from Intermediate Care Facilities for the Developmentally Disabled (ICF/DD) institutional placements into Home and Community Based Waiver residential placements, and 2) Meeting the needs of identified under-served participants in the Home and Community Based Waiver Services after accurately assessing the actual costs of each person's support plan. The 2000 Appropriations Act contained proviso language identical to that found in the 1999 Appropriations Act referenced in paragraph 9. The Department implemented this legislative mandate by implementing policy that, except for crisis situations, only persons who were clients on July 1, 1999, would receive services. All others would be put on a waiting list. Ryan Flint is not eligible for the Medicaid Waiver Program. The funds Mrs. Flint seeks come from another source, the Individual and Family Support appropriation. However, as a matter of policy, the Department has applied the prioritization described in paragraph 11, not only to the appropriations made through the Medicaid Waiver program, but also to those relating to the Individual and Family Support appropriation. This policy was communicated to the Department's District Administrators and Developmental Services Program Administrators in a memorandum dated May 22, 2000. Utilizing this policy, the result in this case is the same as if Ryan had been on the Medicaid waiver. Jo Ann Braun, a Human Services Counselor with the Department, was not aware of the new policy until August of 2000. Thus, she could not have been aware of the new policy at the time she wrote Ryan's service plan which was in June 2000. According to Ms. Braun, as this policy was in the process of being disseminated through the Department, there may have been some clients who did not meet the crisis criteria and who entered the system after July 1, 1999, who received services. However, once the Department staff received and began implementing the policy, new clients were put on the waiting list and did not begin to receive services. In the past two years, the Legislature has not appropriated any new funds under the Individual and Family Support Program. Thus, since the existing client base in Developmental Services remained static, the new client base has increased by approximately 8,000 clients since July 1, 1999. Since the client base increased by 8,000 but the funding did not increase, the Department was faced with a decision as to how to fairly and consistently use the funding that was available. The Department determined that the only way it could provide funds to new clients would be by withholding services from existing clients who already received these services. However, it is not the policy of the Department to take money from someone who already is receiving services and give it to someone new. Faced with two choices, neither of which was desirable, the Department implemented a policy which requires that the allocation of Developmental Services moneys be made on a consistent basis. That is, the Department elected to apply these moneys in a manner consistent with the Medicaid Waiver appropriation. Moreover, many of the clients who receive Medicaid Waiver funds also receive Individual and Family Support funds. Additionally, the Department's prioritization puts at the top of the list those clients who are in crisis. Under these circumstances, the Department's decision to allocate the Individual and Family Support moneys in the same manner as the Medicaid Waiver moneys is not unreasonable or arbitrary. Applying the Department's policy, Ryan can only receive services if he is in crisis because he became a client after July 1, 1999. The Department has identified six conditions which, if present, constitute a crisis which would permit it to provide services to persons who became clients after July 1, 1999. These are: A court order from a criminal proceeding requires the Department to provide services. The client is highly dangerous to himself or others, and danger will continue if services are not provided immediately. The client is living in a high risk situation in which abuse and/or neglect is occurring or likely to occur. The client is homeless, living either in a homeless shelter or on the street. The caregiver is unable to provide care for the client, no alternative arrangements are possible, and without the provision of services, the client cannot safely remain with the caregiver. Other circumstances exist which will present a danger to the client's safety and/or security if services are not provided. The parties stipulated that Ryan Flint met none of the foregoing criteria. Consequently, the Department did not provide him the services his mother sought on his behalf.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Department of Children and Family Services enter a Final Order leaving Ryan Flint on the waiting list of clients to be served by the Department's Developmental Services Program, and providing those services to him as soon as funds become available to do so. DONE AND ENTERED this 12th day of January, 2001, in Tallahassee, Leon County, Florida. BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of January, 2001. COPIES FURNISHED: Madeline Flint 1327 Conservancy Drive Tallahassee, Florida 32312 John R. Perry, Esquire Department of Children and Family Services 2639 North Monroe Street, Suite 100A Tallahassee, Florida 32399-2949 Virginia A. Daire, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
The Issue Whether Petitioner's application to adopt L. H. should be granted.
Findings Of Fact Petitioner, Debby Sclafani (Sclafani), is a former foster parent for Respondent, Department of Children and Family Services (Department). On March 4, 1998, L. H., a foster child born on December 18, 1993, was placed in Sclafani's home. L. H. had been sexually abused when she lived with her biological mother. When she came to live with Sclafani, L. H. acted out sexually, including masturbating. L. H. also engaged in self-mutilating behavior and had nightmares. L. H. was being seen by Marion Koch, a therapist at the Center for Children in Crisis. In midsummer of 1998, Sclafani also began seeing a therapist, Gloria Watt, at the Center for Children in Crisis. During the therapy sessions with Sclafani, Ms. Watt became concerned with Sclafani's preoccupation with L. H.'s sexual behavior. Ms. Watt told the therapist that she had asked L. H. which finger she used when masturbating and to demonstrate what she did. The child complied with Sclafani's request. If Sclafani caught L. H. masturbating, she would take the child's stuffed toys away as punishment. Ms. Koch and Ms. Watt attempted to educate Sclafani about parenting and child development, including ways to redirect L. H.'s sexual behavior. The therapists told Sclafani to stop focusing on L. H.'s masturbation, but Sclafani was unable to deal with the child's sexual behavior and could not follow the suggestions of the therapists. In September 1998, the Center for Children in Crisis shut down, and the therapy sessions with L. H. and Sclafani stopped. Sometime during the fall of 1998, the parental rights of L. H.'s mother were terminated. It was the Department's policy that once a parent's rights are terminated, the foster parent should not talk to the child again about the parent. However, after L. H.'s mother's rights were terminated, Sclafani continued to pray with L. H. for L. H.'s mother's sins. Sometime after L. H.'s mother's parental rights were terminated, L. H.'s father's parental rights were also terminated. L. H. became a candidate for adoption, and her case was transferred to the adoption section of the Department. Sclafani applied to the Department to adopt L. H. L. H. was given a pre-adoptive psychological evaluation by Dr. Shelia King. L. H. told Dr. King that Sclafani spanked her and slapped her face. L. H. had been told by Sclafani not to tell the doctor that she had been spanked. When L. H. was returned home after the evaluation with Dr. King, L. H. told Sclafani, "The doctor knows that you whoop me." When Sclafani became L. H.'s foster parent, she signed an "Agreement to Provide Substitute Care for Dependent Children" and agreed to abide by the following provisions of the agreement: This child is placed in our home on a temporary basis and is at all times under the supervision of the Department. We are fully and directly responsible to the Department for the care of the child. We will take no action to acquire legal custody or guardianship of the child. We will hold confidential all information about the child and his family and will discuss such information only with a representative of the Department or with appropriate specialists at the request of the Department. * * * 8. We will participate with the Department in planning for the child, which may include adoption placement, transfer to another foster home, or return to parent(s) or relative(s). * * * We will comply will all requirements for a licensed substitute care home as prescribed by the Department. We will immediately report any injuries or illnesses of a child in our care to the Department. * * * 19. We will abide by the Department's discipline policy which we received during MAPP training. Sclafani agreed to and executed the Department's discipline policy which states, "The substitute care parents must not use corporal punishment of any kind." Sclafani admitted to spanking L. H. on several occasions. The Department referred Sclafani to Dr. Shelia King for a psychological evaluation on January 5, 1999. In her evaluation report, Dr. King stated: . . . [Sclafani] would come to expect a child to fill her needs as opposed to her filling the child's. Should a conflict arise, Ms. Sclafani would put her own needs first. As an aside, she would not accept or believe this was occurring. Due to her inability to take care of herself emotionally, she will become depressed and withdrawn from time to time. * * * It must be noted that no small measure of concern results from the fact that Ms. Sclafani attempted to prep this child prior to her (the child's) evaluation by admonishing her not to advise this psychologist of the fact that Ms. Sclafani spanks her upon occasion. This indicates that while aware that this is not a behavior which would be acceptable to the Department of Children and Families, she nevertheless will engage in it as a method of discipline. More distressing is that she then not only will lie about it herself but also encourage the child to do something which is clearly wrong and tell a lie by omission in order to protect herself. A more appropriate response would be to merely admit that she believes spanking is an appropriate form of punishment and seek advice on how to handle misbehavior in a more acceptable fashion. * * * The area of concern most prominent in this evaluation is Ms. Sclafani's relationships. Testing indicates someone who is narcissistic and dependent upon others, including her child, for validation and self-esteem. Her history suggests a lack of boundaries between her own parent and herself. Some of Ms. Sclafani's comments suggest this same lack of awareness and boundaries with her foster child. While she does seem open to listening to interpretations and looking at her own behavior, testing also indicates that while she may appear to do so, anger and resentment build, eventually causing her to deny any problems or to reach out for help, and inhibit what appears to be genuine insight. Dr. King recommended that the adoption proceedings be delayed and that Sclafani enter individual psychotherapy. Sclafani had begun working at a child care center, and her medical benefits did not begin until April 1999. Due to the lack of insurance, Sclafani postponed seeing a therapist until April. She attended therapy sessions two times. In May 1999, Sclafani engaged in a verbal altercation with her supervisor at the day care center where she worked. She told her supervisor that she was giving her thirty-day notice and quitting her job. The supervisor informed her that was not necessary because she was fired. The bottom line was that Sclafani was without a job and medical benefits. She had inherited some money from her father's estate and decided to take a vacation. When the Department learned that Sclafani was without a job, a decision was made to remove L. H. from Sclafani's foster home. On May 21, 1999, L. H. was removed from her day care center and placed in another foster home with a couple who have applied to adopt her. Sclafani was asked to pack a suitcase for L. H. with her clothes and other belongings. Sclafani did pack the suitcase, but she also hid notes to the child among the clothes in the suitcase. A few days after L. H. was removed from Sclafani's care, Sclafani met with L. H., her guardian ad litem, and representatives from the Department to bring closure to the placement. Sclafani became very emotional during the meeting, which upset the child. On July 1, 1999, Sclafani went to the day care center where L. H. had been placed by her new foster parents to see L. H. Sclafani told the assistant director of the day care center that she was inquiring about the pre-kindergarten class for a neighbor's child. The assistant director took her to the classroom where L. H. was in class. Sclafani immediately walked over to L. H. and asked her if she were happy. Sclafani told L. H. that if L. H. was not happy that she would fight for her. L. H. began to cry hysterically. The assistant director realized who Sclafani was and asked her to leave the building. On the same day as the day care incident, L. H. and her foster father were eating ice cream outside an ice cream shop located in a shopping plaza. L. H. told her foster father that she saw Sclafani, who was in her car turning up a lane in the parking lot. A few minutes later, Sclafani drove by again in the opposite direction, waved at L. H., and left the shopping plaza. Prior to the incidents at the day care center and the shopping plaza, L. H. had been transitioning to her new home very well. Following the incident at the day care center, L. H.'s play in therapy became aggressive, and L. H. told her therapist that she was afraid Sclafani would take her and expressed anxiety about the likelihood of this happening. Because of Sclafani's actions, the Department sought a restraining order against Sclafani. On July 29, 1999, Judge Ronald V. Alvarez entered an Order Granting Emergency Petition for Injunction, ordering that Sclafani refrain from contacting L. H. wherever the child may be found while the court had jurisdiction over the child. In the order, the court stated: . . . Contact with Ms. Sclafani will hinder the child's future attachment with another family and create more, further damaging confusion in the child's life. The child's permanency is undermined by Ms. Sclafani's contact or attempted contact with her. The granting of a protective order is necessary to prevent such acts from happening. Permanency with her new family cannot be attained until [L. H.] is free to live without the fear of interruption by Ms. Sclafani. This order is necessary to protect the child's emotional and mental health from being at risk of grave and lasting harm and to support her permanency. Since L. H. has been removed from Sclafani's home, she has ceased masturbating and no longer self-mutilates. She is happy and well adjusted in her new home. According to her guardian ad litem, L. H. has blossomed and is now being a child in contrast to her actions when she was with Sclafani, where L. H. appeared to be "cowed" by Sclafani. L. H. has always wanted a daddy, and now she has a foster father in her new home. Sclafani had chosen a friend to be L. H.'s father figure. Unfortunately, her choice had an active, non-expiring domestic violence restraining order against him. L. H. loves her new foster parents and wants to be adopted by them. The new foster parents love L. H. and want to adopt her. Since L. H. has been with her new foster parents, she has not asked to see Sclafani. Sclafani had listed her pastor and his wife as a reference on her application for adoption. The pastor and his wife indicated on the reference that they did not know Sclafani well enough to make a recommendation that she was qualified to adopt a child. In order to process the adoption application, the Department looks at the applicant's medical history. Sclafani's medical records reflect a high frequency of doctor visits and current, on-going prescriptions for anti-anxiety medications. The evidence was unclear if Sclafani had found gainful employment since the termination of her employment in May 1999. The evidence did show that while she was a foster parent for L. H. that she worked for three different employers and was unemployed when L. H. was removed from her care.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered denying Debby Sclafani's application to adopt. DONE AND ENTERED this 9th day of November, 1999, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 9th day of November, 1999. COPIES FURNISHED: Mary Jane Fitzgerald, Esquire Harvey Building, Suite 1300 224 Datura Street West Palm Beach, Florida 33401 Colleen Farnsworth, Esquire Department of Children and Family Services 111 South Sapodilla Avenue, Suite 201 West Palm Beach, Florida 33401 Debby Sclafani 7581 West Lantana Road Lake Worth, Florida 33467 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
The Issue Whether the decision of the Department of Children and Family Services to reject the proposals submitted by the Children's Home Society in response to ITN No. 01-FSD2A/01 and ITN No. 01-FSD2B/01 as non-responsive was contrary to the Agency's governing statutes, the Agency's rules or policies, or the specifications of the ITNs?
Findings Of Fact On or about February 1, 2001, DCF issued ITN No. 01- FSD2A/01, and No. 01-FSD2B/01 for the delivery of foster care licensure, retention and recruitment contracts in both District 2A and District 2B of DCF. Each ITN included a form entitled "Appendix M Statement of Assurances" with the ITN number clearly printed at the top of the page as well as this identifying language, "FOSTER CARE LICENSURE, RETENTION AND RECRUITMENT SERVICES." Appendix M consists of 7 paragraphs of requirements and conditions. Section 6.4 of the ITNs reads as follows: 6.4 RESPONSE TO INVITATION TO NEGOTIATE MANDATORY REQUIREMENTS The mandatory requirements are described as FATAL CRITERIA on the Invitation to Negotiate Rating Sheet. Failure to comply with all mandatory requirements will render an application non-responsive and ineligible for further evaluation. Was application received by the time and date specified in the Invitation to Negotiate? Was one (1) original and seven (7) copies of application supplied? Did the application include the signed State of Florida Invitation to Negotiate Contractual Services Acknowledgement Form, PUR 7105? Did the application include a title page (section 6.2)? Did the application include the singed Statement of No Involvement? Did the application include the signed Acceptance of Contract Terms and Conditions form? Did the application include a signed Statement of Assurances? Did the application include a line budget with narrative justification of the included items? (emphasis in original) Section 6.13 of the ITNs is entitled, "HOW TO SUBMIT AN APPLICATION" and includes the following language: 6.13 HOW TO SUBMIT AN APPLICATION Faxed applications will not be accepted. All seven (7) copies of application packages must be delivered sealed and clearly marked on the outside of each of the packages: 'RESPONSE TO INVITATION TO NEGOTIATE' and contain the respondent's name and address. The applicant is free to use any means of delivery it wishes. The applicant is responsible for ensuring the Department receives all required material prior to the deadline, in the manner required, and at the place requested in this Invitation to Negotiate. Any untimely application will be rejected and returned unopened and unevaluated. * * * . . . A completed application consists of the following: Cover Page (signed and dated PUR 7105 form indicating the total number of pages in the application, included in this document as Appendix B.) Completed Title Page and Table. Responses to each of the requirements of Sections 6.3 to 6.8. Signed and dated Appendix M, Statement of Assurances. (emphasis supplied) CHS submitted proposals to both ITNs. The proposals submitted by CHS for both ITNs did not include the Statement of Assurances found in Appendix M of ITN Nos. 01-FSD2A/01 and 01-FSD2B/01. Instead, both proposals contained a different Statement of Assurances which CHS had previously used in a response to another ITN in a different district of DCF. The statement of assurances which CHS attached contained 11 paragraphs of requirements and conditions. By letters of March 6, 2001, the Department informed CHS that CHS's proposals to the two ITNs did not meet the mandatory requirements listed in the ITNs and that this failure to comply with all mandatory requirements renders their proposals non- responsive and ineligible for further evaluation. The Department made the determination that CHS's proposals were non-responsive in both districts under the same legal and factual analysis. Dr. John Awad, the District Administrator, made this decision on behalf of the Department after consulting staff and legal counsel. The decision of the Department to determine CHS's applications to be non-responsive and ineligible for further evaluation resulted in five eligible applicants in District 2A, and two applicants in District 2B. CHS's failure to include Appendix M, which was a mandatory requirement of the ITNs, and mistakenly including a Statement of Assurances from a different ITN, constitutes a major irregularity. The failure to sign and include this document, which was clearly and expressly required in Section 6.4 of the ITNs, is sufficient to support DCF's position to consider CHS's proposals to be non-responsive and ineligible for further evaluation. In further support of DCF's decision that CHS's proposals were non-responsive, there are significant differences between the Statement of Assurances contained in Appendix M and the Statement of Assurances which was submitted by CHS. The Statement of Assurances that was submitted by CHS expressly referenced services to be provided in Volusia and Flagler Counties which are not within the geographical boundaries of DCF's District Two. Additionally, the Statement of Assurances supplied by CHS guarantees the provision of a plan by December 1, 2000, regarding how it will meet accreditation standards. Appendix M has no such provision. Finally, Appendix M requires the applicant to assure that the applicant has the ability to provide directly, or through contract, all services described in "this Invitation to Negotiate and resulting contract" which are specified as foster care licensure, retention, and recruitment services. The Statement of Assurances which was submitted by CHS assured that it would provide "foster care and related services." This assurance constitutes a different scope of services than contemplated in the ITNs at issue here. The ITNs define foster care recruitment as, "[t]he process of finding foster parent resources for waiting children, using either formal media-based campaigns, or informal procedures recognized as effective by the selected applicant agency." Foster care retention is defined in the ITNs as, "[t]he act of maintaining a base of licensed family foster homes." "Related services" as defined in Section 409.1671(1)(a), Florida Statutes (2000), means "family preservation, independent living, emergency shelter, residential group care, therapeutic foster care, intensive residential treatment, foster care supervision, case management, postplacement supervision, permanent foster care, and family reunification." Moreover, the phrase "foster care and related services" is not defined in the ITNs at issue here and it cannot be inferred that this general phrase encompasses the specific services in the ITNs to which a proposer or an applicant must assure that it will provide. CHS’s failure to sign and include Appendix M, the Statement of Assurances attached to the ITNs at issue, resulted in a failure to meet the mandatory requirement in Section 6.4 of the ITNs. CHS’s use of a form associated with a different invitation to negotiate which specified a different scope of services for a different geographic area than contemplated by the ITNs at issue does not satisfy the mandatory requirement in Section 6.4. Appendix N, which explains the scoring criteria and procedure of the ITNs further referenced the Statement of Assurances as one of the "FATAL CRITERIA" and emphasized in bold type that, if not met, the response could not be considered further. CHS’s failure to meet this mandatory requirement constitutes a material deviation from the ITNs. Needs Assessment Prior to the development of the ITNs at issue here, DCF asked CHS to provide a needs assessment and plan related to the need for services relating to foster care licensure, relicensure, recruitment, training and retention in District Two, Subdistrict 2B. Intervenor Devereux asserts that CHS should have been declared ineligible to submit proposals to the ITNs because of this needs assessment in which it participated. On May 26, 2000, DCF awarded a purchase order to CHS to conduct a needs assessment and develop a plan for recruitment and retention of foster parents. Initially, the purchase order was for $20,000.00. However, this purchase order was amended in August 2000 by reducing the scope of the agreement and reducing the amount to be paid to CHS to approximately $10,000.00. The amended purchase order still called for CHS to develop a needs assessment, but no longer called for the development of a plan. CHS did not develop a plan as contemplated by the original agreement nor was it paid for anything more than the needs assessment. The original purchase order between DCF and CHS did not reference procurement of a feasibility study. The weight of the evidence does not support Intervenor’s assertion that the plan contemplated by the original purchase order signed May 26, 2000, necessarily would have constituted a feasibility study. Moreover, the plan contemplated by the original purchase order was never created and CHS was never compensated for anything beyond the needs assessment. The needs assessment produced by CHS was attached to the ITN for District 2B. Thus, all prospective applicants were provided with the needs assessment. DCF held a prospective applicants conference on February 16, 2001. At this conference, Intervenor asked whether the provider who participated in the preparation of the needs assessment would be ineligible to submit a proposal in response to the ITNs. DCF replied that the provider who participated in the preparation of the needs assessment is not excluded from submitting a proposal and noted that the information that was gathered and the results were included in the ITNs. CHS completed, signed, and attached to its proposal to ITN#01-FSD2B/01 a Statement of No Involvement which assured that neither CHS nor any member of that firm had been awarded a contract by DCF on a noncompetitive basis to develop the ITN; perform a feasibility study concerning the scope of work contained in this ITN; or develop a program similar to what is contained in the ITN.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Department of Children and Families enter a final order dismissing the bid protest filed by Children’s Home Society. DONE AND ENTERED this 25th day of July, 2001, in Tallahassee, Leon County, Florida. BARBARA J. STAROS 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 25th day of July, 2001.
The Issue The issue in this case is whether the Petitioner's request that the Respondent pay for certain supplies may be denied based on Respondent's limited funding and on Respondent's spending priorities as set forth in a Spending Plan.
Findings Of Fact The Petitioner, Bernice Simon, as a result of having spina bifida, is incontinent of both bowel and bladder. She needs incontinence supplies, and will continue to need such supplies in the future. All parties agree that the Petitioner has a medical need for the incontinence supplies she seeks to have the Respondent continue to provide. On April 19, 2001, Bernice Simon signed a Notice of Eligibility for ICF/DD and Developmental Services Home and Community-Based Services Waiver. It stated "This is to inform you that Bernice Simon has been determined eligible for ICF/DD services or the Developmental Services Home and Community-Based Services Waiver." The form indicates "Client doesn't want the Medwaiver at this time. She can apply in future if she changes her mind." On October 18, 2001, Human Services Counselor Christina Tookes notified Ms. Simon: "I regret to inform you that unless you apply for the Waiver we are unable to provide services at this time. Be also advised that the Department, at this present time, are [sic] not providing any new service to any consumers until further notices by our Legislators from Tallahassee. This is unfortunate, but we are instructed to follow guidelines and procedures mandated by our Department Heads." On March 15, 2002, Ms. Simon was notified that incontinence supplies were terminated due to insufficient funds with which to continue funding the service. The Spending Plan Instructions states include the following: The 2001 Florida Legislature appropriated additional funds for the Developmental Disabilities Program to serve additional persons and annualize services begun during state fiscal year 2000-2001. In order to accomplish the goals established by the Governor and the Legislature, it is imperative that the approved spending plan be implemented and followed. Approved prioritization schedule and policy decisions must be implemented in order to be able to serve the number of individuals funded for state fiscal year 2001-2002. Compliance with the approved Spending Plan for FY 2001-2002 is required of all Department employees. . . . The use of non- Waiver funds (Individual and Family Supports (IFS) budget category) to fund services for additional persons who are awaiting enrollment on the Waiver is prohibited. Because of limited funding and the need to maximize the use of General Revenue funds by obtaining federally matching funds wherever possible, IFS funding is no longer available for persons who are eligible to receive Waiver-funded services, but who have refused services funded through the Waiver. For those who continue to refuse services funded through the Waiver, IFS expenditures will be discontinued due to lack of funding, with appropriate due process notice. The Petitioner was informed of the scope, intensity, and duration of services for which funding by the government was available. She was notified repeatedly that services might be discontinued. By reason of their assets and income, the Petitioner and her husband are not eligible for enrollment in the Home and Community-Based Medicaid Waiver Program.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order dismissing the petition in this case. DONE AND ENTERED this 6th day of September, 2002, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of September, 2002. COPIES FURNISHED: Colleen Farnsworth, Esquire Department of Children and Family Services 111 South Sapodilla Avenue Suite 201 West Palm Beach, Florida 33401 Bernice Simon 6768 10th Avenue, North, Number 101 Lake Worth, Florida 33467 Paul F. Flounlacker, Jr., Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard, Room 204 Tallahassee, Florida 32399-0700 Jerry Regier, Secretary Department of Children and Family Services 1317 Winewood Boulevard Building 1, Room 202 Tallahassee, Florida 32399-0700
The Issue Whether Respondent should continue to allow the Bambi Day Care I child care facility to remain open for business.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Bambi Day Care I (Facility) is a child care facility located in Miami-Dade County. At all times material to the instant case, Mercedes Arabi has been the director of the Facility. Ms. Arabi does not now have, nor has she ever possessed, a director credential issued by Respondent. Although she has attempted to obtain such a credential, she has not been able to meet the credentialing requirements. On or about August 13, 2003, Respondent sent to the Facility (by certified mail, return receipt requested) a form letter advising of the following: The deadline for the Director's Credential is January 1, 2004. This is mandated by Chapter 65C-22, Florida Administrative Code. Each child care facility must have a director that meets this requirement by January 1, 2004. Failure to comply will affect your licensure status seriously. If you have already completed the Director Credential requirement, please disregard this letter and mail or fax immediately a copy of your certificate for your licensing record. (Include the name of your facility.) The same letter was sent to all other licensed child care facilities having an uncredentialed director. The letter was delivered to the Facility on August 21, 2003. Not having received any indication that Ms. Arabi had obtained the required director credential, Respondent, on or about January 16, 2004, changed the Facility's licensure status by issuing a provisional license, effective from January 2, 2004, through July 2, 2004, authorizing the Facility's operation. As of July 2, 2004, Ms. Arabi still had not become credentialed. Accordingly, on that date, Respondent advised her that it "intended to revoke [her] license to operate [the Facility]." Ms. Arabi requested an administrative hearing on the matter. Notwithstanding that the expiration date on the Facility's provisional license was July 2, 2004, Respondent has affirmatively allowed the Facility to continue to operate pending the outcome of Ms. Arabi's challenge to the revocation action announced in Respondent's July 2, 2004, letter. In doing so, it has effectively extended the life of the Facility's provisional license (which, for all intents and purposes, remains in existence).
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Respondent issue a Final Order revoking its permission allowing the Facility to operate as a child care facility. DONE AND ENTERED this 27th day of December, 2005, in Tallahassee, Leon County, Florida. S 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 27th day of December, 2005.
The Issue The issue is whether Petitioners' application for a foster home license should be denied because of their demonstrated inability or unwillingness to follow the requirements of an agency regulation, as alleged in Respondent's letter dated August 2, 1999.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In this proceeding, which bears some resemblance to a child custody dispute, Petitioners, Lawrence and Jocelyn Dustin, seek the issuance of a foster home license from Respondent, Department of Children and Family Services (DCFS). In a letter dated August 3, 1999, DCFS denied the application on the ground that due to Petitioners' "actions and attitudes," which led to the Circuit Court for Citrus County (the court) removing a child from their custody, DCFS had "significant concerns about [their] inability or unwillingness to be a team player" in contravention of Rule 65C-13.010, Florida Administrative Code. Petitioners denied the allegations and requested a formal hearing to contest the proposed action. Through circumstances unknown, Petitioners became acquainted with C. A., the natural mother of T. H., a female born on December 16, 1987. Because of various difficulties experienced by the natural mother in caring for her daughter, and as an alternative to foster care, the court entered an order on June 12, 1995, allowing Petitioners to temporarily serve as substitute care parents for T. H. Because a reunification plan involving the child and natural mother had not been implemented by late 1996, the matter was referred by the court to a mediator to establish a new case plan. A mediation conference was held on March 27, 1997, and a written mediation agreement was formalized in handwritten form by the natural mother's attorney at the conclusion of the conference. The agreement was approved by the court on May 16, 1997. Petitioners attended the conference and signed the handwritten agreement, but they claimed that they left the meeting before it was concluded and that certain matters agreed upon were not incorporated into the agreement. This was partially confirmed by T. H.'s guardian ad litem, who also attended the conference. The agreement approved by the court provided, among other things, that "visitation between the [natural] mother/stepfather and T. [H.] shall continue on a weekly basis with the modification being that Ralph Hunter, the case worker [from DCFS], be the supervising party." In other words, the weekly visitation by the mother with her child could take place at a variety of places, such as a McDonald's Restaurant (McDonald's), the DCFS office, or a park, so long as Ralph Hunter (Hunter) was present. Although Petitioners contended that the parties orally agreed at the mediation conference that such visits could only take place in the local DCFS office, this condition was not incorporated into the agreement which they signed. Further, there is no evidence that Petitioners complained to the court about this apparent omission in the agreement, or even if they did, that it was added to the agreement. On July 16, 1997, the natural mother sought permission from Hunter to meet T. H. at a local McDonald's for visitation purposes. Although this was an "extra" visit, apparently it was to replace one which would be missed because Petitioners were leaving on an out-of-state vacation within a couple of days. Hunter agreed to this request, and he instructed Jocelyn Dustin (Jocelyn) to bring T. H. to his office that day. After the child arrived, Hunter carried her to McDonald's where her mother and stepfather were waiting. Jocelyn explained that because it was a rainy day with thunder and lightning, and T. H. was extremely frightened under those conditions, out of concern for the child she followed Hunter and T. H. to McDonald's. At the same time, Jocelyn believed that the visit violated the court's order regarding visitation rights since she incorrectly interpreted it to mean that visitations could only take place at the DCFS office. For the above reasons, Jocelyn drove up beside Hunter's car at McDonald's, opened the passenger door, and asked him if they could all meet at the DCFS office to discuss why the agreement was being violated. Jocelyn then pulled T. H. out of Hunter's car, told him that she was returning to the DCFS office, and left the premises. Thereafter, Jocelyn drove to her mother's house in nearby Hernando, Florida, where she telephoned a DCFS representative. After speaking with the representative, Jocelyn brought the child to the DCFS office. A DCFS witness established that despite the well- meaning intentions of Jocelyn, her conduct that day called into question her ability to work with DCFS and the natural parent in achieving the court's goal of eventually reunifying the child and mother. Five days later, or on July 21, 1997, the natural mother, through her attorney, filed with the court an Emergency Motion to Remove Child from Foster [sic] Home. Among others, the motion contained allegations that Petitioners "had continuously interfered with the visitations between the child and her mother," had "physically wrestled the child from Mr. Hunter's hands and sped off in a motor vehicle with the child," and had "become increasingly difficult to deal with." The motion asked that the court enter an order "restraining and enjoining the foster [sic] parents from removing the child from the jurisdiction" and removing "the child from [Petitioners'] custody and control pending further Order of this Court." At the hearing in the instant case, a DCFS witness conceded that the foregoing allegations were not wholly accurate, and that Jocelyn had not "continuously interfered with the visitations," had not "physically wrestled the child from Mr. Hunter's hands," and had not "become increasingly difficult to deal with." This is apparently due to the fact that the natural mother's attorney, and not DCFS, drafted the motion. After an ex parte hearing in which neither Jocelyn nor the child's guardian ad litem were allowed to "give input," on July 28, 1997, the court entered an Order Modifying Placement to Foster [sic] Care in which it found a modification in the child's placement to be in its best interest. T. H. was placed in the temporary custody of DCFS, but Petitioners and the natural mother were granted "supervised visitation" rights. Although the child was later returned to the natural mother's custody, she has been in foster status since June 1999, and a termination of parental rights is now being sought by DCFS. On an undisclosed date in 1999, Petitioners filed an application for licensure as foster parents. They did so because of their love of children and their desire to serve as foster parents for older children whose parental rights had been terminated. Although the assertion has been made in this case that Petitioners would not be suitable foster parents because of the incident in 1997, for several years, Jocelyn has satisfactorily served in the court system as a guardian ad litem for a number of foster children. This demonstrates her ability to work with both the court and DCFS in matters concerning foster children. In addition, there is no evidence that she or her husband would pose a threat to the safety or welfare of foster children. Except for the one isolated incident which occurred some 30 months ago when Jocelyn sincerely thought that she was acting in T. H.'s best interests, there is no evidence that Petitioners are unwilling or unable to be a "team player" with the DCFS in providing care to foster children, or otherwise fulfill their foster care responsibilities.
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 the application of Petitioners for a foster home license. DONE AND ENTERED this 10th day of January, 2000, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 10th day of January, 2000. COPIES FURNISHED: 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 James F. Cummins, Esquire 103 West Dampier Street Inverness, Florida 34450-4209 Ralph J. McMurphy, Esquire Department of Children and Family Services 1601 West Gulf Atlantic Highway Wildwood, Florida 34785-8158
The Issue Should Petitioner's request for enrollment to provide services under the Developmental Services Home and Community- Based Services Waiver be denied?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made. Petitioner has three children, one of whom is developmentally disabled. This child is 21 years of age but mentally functions as a one-year old. This child is basically confined to a wheelchair. However, this child can sit on the floor and pull himself around by his arms. The other children, ages two and 12, function normally. Petitioner, with the help of her mother, aunt, and several other caregivers, has been seeing to the needs of this disabled child. The services provided to this child by Petitioner are similar to those services which Petitioner would provide to other individuals in need if the Application is granted. In addition to seeing to the needs of her disabled child, Petitioner has been, for approximately 10 years, working as a caregiver providing services, similar to those listed in the Application, to individuals in need outside her home. Presently, Petitioner is working a 12-hour shift seven days a week as a caregiver providing services similar to those services listed in the Application to a person 84 years of age. In order to provide the services applied for, Petitioner will: (a) provide those services to individuals in her home with or without the child being present, when appropriate; or (b) provide those services to individuals outside of her home when necessary and the child can be properly taken care of by another caregiver or is in school. The care of the child, when he is not in school or when Petitioner is not available to care for him, will be provided for by Petitioner's mother, aunt, or husband, or by another qualified caregiver. In the letter denying the Application, the Department states that "Concerns found in reviewing background screening" was the basis for denial. Ms. Linda Brophy, Human Services Program Specialist, the person who apparently made the decision for the Department to deny the Application, testified that she reviewed three different "Hotline reports" concerning Petitioner and relied solely on that review to deny the Application. Ms. Brophy further testified that she did not interview the person or persons making the reports, the persons or persons who investigated the reports, or Petitioner to determine if the allegations made in the report were in fact true. Hotline Report Number 1999-07785 alleges that the Petitioner's disabled child had been left alone. The facts surrounding this report were: (a) Petitioner had carried the child out to the porch to be picked up by the bus to carry him to school; (b) Petitioner's baby was just inside the door and began to cry; (c) Petitioner stepped back inside the house to care for her baby; and (d) while Petitioner was inside seeing to the needs of her baby, the school bus driver and assistant took the disabled child from the porch and carried him to school. Hotline Report Number 2000-089952 alleges that Petitioner left the disabled child with a caregiver that was not qualified to handle the child. The facts surrounding the report were: (a) Petitioner had left the disabled child with a qualified caregiver; (b) the caregiver had an emergency and left the child with another caregiver but failed to leave instructions as to how to get in touch with Petitioner in the event of an emergency; (c) the child had a seizure; and (d) due to the caregiver not having proper instruction, the child's seizure was not timely attended to. However, upon being made aware that the child had suffered a seizure, Petitioner attended to the child. The initial caregiver no longer cares for the child. Hotline Report Number 2001-030947 alleges that while the disabled child was being cared for by Petitioner's mother he suffered a seizure and was taken to the hospital by Petitioner's mother. Petitioner's mother had never witnessed the child having a seizure and was somewhat confused by the event. Apparently, the child very rarely suffers from a seizure, maybe once a year. In any event, Petitioner went to the hospital to see about the child upon being advised that the child had suffered a seizure. There is no evidence that the Department concluded that the allegations contained in any of the above Hotline Reports were founded. The Department did not deny Petitioner's Application based on the lack of qualifications. However, Petitioner has shown that she is qualified to provide those services applied for in the Application. Petitioner has also shown that she is capable of safely and adequately serving individuals to whom she provides those services applied for in the Application. Petitioner intends to operate as an independent vendor, in that she will bill for and be reimbursed only for services personally rendered by Petitioner.
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 approving Petitioner's application for enrollment as a qualified provider under the Developmental Services Home and Community-Based Waiver, Services for the services set forth in the Application. DONE AND ENTERED this 20th day of December, 2001, 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 20th day of December, 2001. COPIES FURNISHED: Jack Emory Farley, Esquire District 14, Legal Counsel Department of Children and Family Services 4720 Old Highway 37 Lakeland, Florida 33813-2030 Angenette Frasier 1914 Indian Trails Court Lakeland, Florida 33813-3725 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 Tallahassee, Florida 32399-0700
