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 Respondents' child- placing agency license should be revoked.
Findings Of Fact The Department is the state agency responsible for licensing and monitoring child-placing agencies. The Center, whose address is 1602 East Third Avenue, Tampa, Florida, received its initial child-placing agency license from DCF in 2004. The license was renewed October 12, 2006. Susan Morgan has been the director of the Center since its inception. DCF contracts with HKI to provide community-based child welfare services in Hillsborough County. HKI contracts with Camelot Community Care for the performance of adoption related services. DCF received complaints about Respondent and issued an Administrative Complaint with the following categories of violations: A foster parent home study was finalized after only one home visit lasting half an hour. The home study document indicates four home consultations for that client. Files relating to clients were left in an unsecured environment at the Center with unauthorized persons having access to them. An adoptive home study was completed without a visit being made to the prospective adoptive parents' home. Respondent lost or misplaced paperwork from clients which contained confidential information. Respondent failed to timely provide foster parents with a copy of their foster parent licenses once the licenses were issued. Regarding the first violation, two home studies are required to finalize a foster parent home study. The subject family was provided a template for filling in information about their home. This is a reasonable means of gathering information about a family. The family was directed to fill in the template using the third person format (so that anyone reading the document might infer that someone other than the family had written the information). Morgan did not visit the home at issue, but did send her associate (Wendy Martinez) who conducted a brief 30 to 40-minute visit. The home study was signed by Morgan and dated March 13, 2007, some four or five weeks prior to Martinez's visit. The home study included the following table concerning visits and consultations: Contact Information Inquiry Date 01/05/06 Inquiry Home Visit 02/10/06 Initial Home Consultation 03/15/06 MAPP Graduation 02/26/06 2nd Home Consultation 04/02/06 Final Home Consultation 03/08/07 Date Application Signed 03/08/07 The table seems to indicate a single home visit on February 10, 2006, and three home "consultations" on later dates. Morgan says the date of the home visit is a typographical error; it should say April 18, 2006, i.e., the date of Martinez's visit. Morgan admits only one home visit was made, but says the home study was not final. Her testimony on that topic is not credible. The home study appears complete, has references to several home visits and/or consultations, and is signed by Morgan subsequent to the dates appearing in the aforementioned table. DCF considers the references to home consultations to be tantamount to home visits. Inasmuch as at least two home visits are required for a foster parent home study, this interpretation makes sense.1 A discussion of the differences, if any, between home visits and home studies follows. There was much testimony at the final hearing as to whether a home visit and a home study are the same thing. Each of the experienced social workers and managers who testified (other than Morgan) seemed to believe the two were synonymous. Even the two witnesses called by Respondent to address the issue opined that home visit and home consultation mean essentially the same thing. Respondent introduced definitions from The Social Worker's Dictionary, but there is nothing in those definitions to suggest they apply to foster care or adoption situations. None of the social workers who testified indicated they would rely on that source to define home visits versus consultations. The home study at issue appears to suggest that four home visits/consultations were conducted, when in fact only one (of the required two) was done. The second category of rule violation concerns unsecured client records. Files belonging to clients of child- placing agencies are extremely confidential in nature. Respondent moved into a new office in the Ybor City section of Tampa during September 2006. The office was shared with a company that specializes in estimating construction project costs. The estimating company had two employees, a receptionist and the owner of the company. The office was set up so that the receptionist was in the same room as Respondent's employee, Martinez. Morgan had a separate office for herself, and the owner of the estimating company had an office upstairs. The Ybor City office had been inspected by DCF in October 2006 and was found to be sufficient for its intended purposes. A client, Angela Ferguson, visited the Center in early April 2007. Morgan was not present when Ferguson arrived, but Martinez was there, as were employees from the other business. Martinez called Morgan on the client's behalf so that Morgan could come to the office. While waiting for Morgan, the client noticed 50 to 60 file folders lying around the office. Some of the files belonged to other clients whose names were visible to Ferguson. Some of the files were probably forms and other non- confidential documents. The client files were not locked in a cabinet or otherwise protected from persons using Respondent's office. On or about May 2, 2007, another client, Jennifer Moody, also visited the Center to get her file (so that she could transfer to another adoption agency). She walked into the office and found the estimating company's receptionist, but no one from the Center was there. The receptionist called Morgan because Moody wanted to wait for her to arrive. While waiting, Moody observed files lying around the office in plain view. When Ferguson expressed her concerns to DCF about the way files were being handled, a licensing specialist was sent out to investigate. DCF employee Melissa Leggett made an unannounced visit to the Center on May 16, 2007, at 10:00 in the morning. Martinez was in the office when Leggett arrived; Martinez called Morgan for Leggett, and Morgan arrived shortly thereafter. Leggett noticed confidential files lying around the office, including files for some clients who she personally knew. Leggett advised Morgan that the files would have to be protected by placing them in a locked file cabinet or locked room. Morgan agreed to remedy the situation and seems to have done so by the date of the final hearing. Files are now being protected from public scrutiny. Each employee of the estimating company has signed a Confidentiality Office Policy agreeing to keep all records of the Center confidential. The third category of violation concerned an adoptive home study for Moody (the same client who had visited the Center). The home study for this family was also sent in blank template form with instructions to fill it out using the third person. Moody filled out the form and sent it back to Morgan. In April 2006, Moody and her husband were scheduled to attend a meeting with prospective adoptee children at Splitsville, a Tampa bowling alley. In order to attend such meetings, prospective adoptive parents must have a home study completed in advance. This serves the purpose of making sure that such parents actually qualify as adoptive parents before they are exposed to the children. The home study for Moody and her husband was finished by Morgan in time for the Moodys to attend the Splitsville function. Although several home visits were scheduled, each of them was cancelled due to various circumstances. No home visit was ever made. However, the home study was completed and signed by Morgan with a recommendation that the family be approved to adopt. The recommendation section of the home study included as its basis: "Based on MAPP training, personal interviews, home consultations . . .". The home study contains a thorough description of the home, including the pool and yard, presumably based on details provided by the Moodys. Moody decided to terminate her relationship with Morgan and the Center after not hearing from Morgan during the period of July through November. As stated earlier herein, Moody picked up her file, which included the signed home study, from the Center. Morgan maintains the home study was still a "work in progress" at that time. However, it had already been signed and was dated April 18, 2006. (Moody was scheduled to attend the Splitsville event on April 22, 2007, and would have needed a completed home study in order to attend.) By Morgan's own admission, she was never in the home of Moody and did not "effectively or efficiently manage" that client's case. It was, as Morgan admitted, wrong to sign the home study without having visited the home. It appears the home study was finished so that the family could attend the MAPP event. The next category of violation had to do with lost or misplaced paperwork. A child placing agency must protect all information provided to it by clients so that confidentiality is maintained. LaClair and her husband submitted a large packet of information to Morgan as part of their attempt to adopt a child through the Center. The information was lost or misplaced by the Center on at least two (but possibly three) occasions. The submitted information contained extremely confidential information, including: marriage licenses, divorce decrees, birth certificates, social security numbers, military identification numbers, and insurance information. The last category of violation concerned failure by Respondent to timely provide licenses to approved foster parents. One of Respondent's clients, Barry Plesch, indicated a long interval between verbal approval and receipt of his paper license. However, he could not quantify the number of times nor specifically remember what dates he may have called Respondent to ask about the license. Another client, Brad Farber, made numerous requests for his license. When he expressed an urgent need for it, the license was produced forthwith. On May 17, 2007, Morgan met with representatives of HKI to discuss the Moody home study and the situation relating to confidential records. At that time, Morgan admitted to falsifying the Moody home study. Morgan acknowledged the gravity and severity of that mistake. She did explain that her office was undergoing reorganization at the time of Leggett's visit, which was the reason so many files were lying around the office.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Children and Family Services upholding the revocation of Respondent's child-placing agency license. DONE AND ENTERED this 29th day of November, 2007, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 29th day of November, 2007.
The Issue The issue in this case is whether Petitioner's foster home license should be renewed.
Findings Of Fact From August 24, 2004, and throughout the period material to this proceeding, Petitioner Jannifer Thompson ("Thompson") and her husband, Dalkeith, held a license that authorized them to operate a family foster home under the supervision——and within the regulatory jurisdiction——of Respondent Department of Children and Family Services ("DCF"). Like all licensed foster parents, Thompson and her husband had entered into a written contract with DCF known as the "Bilateral Service Agreement" ("Agreement"), most recently as of April 30, 2006. This Agreement, by its terms, "reflect[ed] standards of care that are current requirements in Florida [law]." On September 14, 2006, a counselor named Elboney Ojobor, who was employed by a private agency to whom DCF had delegated various responsibilities pursuant to contract, made a routine quarterly visit to Thompson's home. Ms. Ojobor was covering for a colleague (Rondalyn Woulard) who was on maternity leave; she had not met Thompson previously. While interviewing Thompson, Ms. Ojobor learned that Thompson was the only adult living in the home at the time, and that Thompson was getting divorced from Dalkeith. Ms. Ojobor understood this to mean that Mr. Thompson had moved out of the home permanently. In fact, Mr. Thompson was away from the home then not because he had moved to another residence ahead of a divorce, but because his job with a shipping company had required him to be out of town for an extended period. Nevertheless, the couple was estranged; Mr. Thompson would leave the marital home for good in the middle of October 2006. Ms. Ojobor's visit was not the first occasion on which Thompson had notified DCF (through its private-sector agent) that her marriage to Dalkeith was in trouble. During an earlier home visit (probably around June 2006, during the quarter immediately preceding Ms. Ojobor's visit in September), Thompson had told her regular counselor, Ms. Woulard, that she might divorce Dalkeith. Ms. Ojobor was not aware of this previous communication, however, and thus she reported the apparent change in circumstances (Mr. Thompson's absence) to her supervisor. The upshot was that on September 15, 2006, Ms. Ojobor called Thompson to inform her that, if she were to continue operating the foster home as a single parent, she would need to obtain a new license. As it happened, whatever steps Thompson took thereafter to become re-licensed came quickly to naught because, in early October 2006, DCF received an allegation that children in Ms. Thompson's home were being physically abused. Having brought up the abuse report, the undersigned believes it necessary here to interrupt the narrative flow of the findings, to call attention to some important points. The most serious charge against Thompson in this case is that she used "excessive" corporal punishment on foster children in her care. The accusation is not that Thompson was found by some other agency or investigator to have abused a foster child or children. The distinction is critical. Because DCF has alleged that Thompson used corporal punishment excessively, it is not sufficient (or even necessary) for DCF to prove that someone else, after investigating allegations of abuse, concluded that Thompson had inflicted some sort of physical injury on a foster child. Rather, DCF must prove that Thompson, in fact, actually used corporal punishment, which is a different fact. Indeed, that someone else found Thompson guilty of physical abuse is not especially probative, in this de novo proceeding, of the salient factual dispute, namely whether Thompson used corporal punishment on foster children.2 Against this backdrop, the undersigned finds that, on October 9, 2006, DCF referred a report of abuse concerning Thompson to the local Child Protective Team ("CPT"). DCF requested that the CPT examine the allegedly abused foster child and make an assessment of the situation. One member of the CPT who took part in this particular assessment was Karl Dorelien. Though not a medical provider, Mr. Dorelien was present for the medical examination of the child in question, whose name is T. P. The examination was performed by an advanced registered nurse practitioner ("ARNP"). Mr. Dorelien testified at hearing. The ARNP did not. At the time of the examination, Mr. Dorelien saw some bruising on T. P.'s forearm. T. P. told Mr. Dorelien and the ARNP that she had been struck by a belt. The CPT did not independently investigate T. P.'s statement. Mr. Dorelien and the ARNP accepted at face value T. P.'s statement about the cause of her injury. The ARNP found that T. P.'s wound was "not accidental." (Mr. Dorelien specifically denied having the expertise to ascertain whether a bruise was caused accidentally or intentionally. There is, it should be added, no persuasive evidence that the ARNP possesses such expertise, either.) Based on the medical examination, the CPT concluded that Thompson had struck T. P. with a belt. (It is not clear how the CPT determined that Thompson——as opposed to someone else——caused T. P.'s injury.3) The evidence shows, in short, that the CPT found Thompson had caused bodily injury to T. P., a foster child then in her care, whom (the CPT determined) Thompson had hit with a belt. There is, however, no persuasive evidence upon which the undersigned independently can find that Thompson actually hit T. P. with a belt (or otherwise). How can this be? First, no one claiming to have personal knowledge of the matter testified at hearing that Thompson had struck T. P. with a belt. (T. P. was not called as a witness.) Thompson denied having perpetrated the alleged misdeed. Second, although there is competent and credible evidence (Mr. Dorelien's testimony) that T. P.'s forearm was bruised, the only evidence as to the cause of this injury was hearsay: (1) T. P.'s statements to the CPT revealing that she had been struck with a belt and (2) the ARNP's opinion (which Mr. Dorelien repeated at hearing) that the wound was not accidental. This uncorroborated hearsay is not a legally sufficient basis for any finding of fact, and even if it were, the undersigned, as the trier of fact, would give it too little weight to support a finding.4 Finally, even if there were sufficient evidence in the record to support a finding that T. P. had been struck with a belt (and there isn't), there yet would be nothing but Mr. Dorelien's ambiguous testimony concerning the substance of T. P.'s out-of-court statement, coupled with inference or speculation (based on uncorroborated hearsay), tending to establish that Thompson did the striking. Again, such "proof" is neither legally sufficient nor, in any event, logically persuasive enough to support a finding that Thompson was at fault for the child's injury. DCF alleges that, in addition to striking T. P. with a belt (which allegation was not proved, as just found), Thompson also spanked J. D. F. and his brother, O. F. Both of these boys, respectively aged 8 and 7 years at the time of hearing, testified against their former foster mother. Each claimed that Thompson had spanked him with a belt. As witnesses, however, the boys did not inspire confidence in the truth of their accounts. Each gave testimony that was confusing, sometimes inconsistent, and lacking in precision. Neither one seemed distinctly to remember the important events at issue, much less any of the details surrounding them, causing the undersigned to wonder, at times, whether the boys were independently recalling the underlying events or, rather, testifying from the memory of what someone might have told them was alleged to have occurred. Doubtless many of these boys' shortcomings as witnesses stemmed from their youth and immaturity. Even so, all witnesses, regardless of age and experience, must be measured according to the same standards of credibility; the bar can be neither lowered nor raised to conform to a particular witness's capacity for giving testimony, for doing so would put a thumb on the scales of justice. At bottom, the accounts of J. D. F. and O. F., though not inherently incredible, nevertheless lacked sufficient indicia of reliability to produce in the undersigned's mind a firm belief or conviction that Thompson had spanked them with a belt. The undersigned hesitates to say more than that such is a possibility. Against the shaky testimonies of the boys was offered the decidedly stronger testimony of their sister, Sancia Jeantil, who swore that while she was living in Thompson's home (which admittedly was not at all times her brothers were there), she never saw Thompson spank either J. D. F. or O. F. She further testified that neither of her siblings had ever complained to her about being beaten. The undersigned has accorded considerable weight to Ms. Jeantil's testimony, because it seems unlikely that she would prevaricate to protect Thompson at her brothers' expense. Although Ms. Jeantil was not always present in the home, her testimony, which the undersigned accepts, is persuasive proof of the pertinent negative proposition, i.e. that Thompson did not use corporal punishment on the boys. Thompson herself testified at hearing and denied having used corporal punishment on J. D. F., O. F., or any other foster child. Mr. Thompson, too, testified that corporal punishment had not been used on any of the foster children in their home. Thompson's own child, J. T., said the same. None of these witnesses conclusively proved the negative of DCF's allegation regarding corporal punishment, but then again it was not Thompson's burden to disprove the charge. What these witnesses did do, effectively, was establish a credible, if simple, theory of innocence: Thompson never beat the foster children in her care. The undersigned has determined, as a matter of ultimate fact, that the evidence as a whole fails to produce in the mind of the trier of fact a firm belief or conviction, without hesitancy, that Thompson used corporal punishment on any of the foster children under her care. Aside from the allegations regarding corporal punishment, DCF has charged Thompson with the lesser offense of failing immediately to notify DCF that her husband had moved out of the home. The evidence shows, however, that Thompson satisfied her duty to notify DCF concerning changes that might affect the life and circumstances of the foster children residing in her home. To recap, briefly, the material facts, Thompson informed DCF's agent, Ms. Woulard, of the possibility that she and Dalkeith might divorce; thus, DCF was on actual notice of a potential change in Thompson's marital status. Thompson likely gave DCF this advance warning in June 2006; in any case, she spoke up long before Dalkeith established a new residence and before the divorce proceeding commenced. There is no clear proof that the couple's situation had changed materially as of September 14, 2006, when Mr. Ojobor visited the home. Without question, Mr. Thompson was away at that time——but he worked for a shipping company and thus extended absences were part of his routine. Having all the evidence of record in view, the undersigned is not convinced that Mr. Thompson had "moved out" of the home as of mid-September 2006 in the sense of having permanently relocated from that residence, which is what DCF maintains. While there is some evidence that such was the case, there is also persuasive evidence that Mr. Thompson did not leave the home for good until October 2006——evidence sufficient to preclude the undersigned from finding, without hesitancy, that DCF's allegation is accurate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that DCF enter a final order approving the renewal of Thompson's foster home license. DONE AND ENTERED this 15th day of November, 2007, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of November, 2007.
The Issue The issue in this case is whether the petitioner's request to be an adoptive or foster parent should be granted or denied.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and the entire record of this proceeding, the following findings of fact are made: The Department is the state agency responsible for licensing family foster homes pursuant to section 409.175, Florida Statutes, and for establishing minimum standards which must be met by prospective adoptive parents, pursuant to section 63.022, Florida Statutes. In September 1995, Ms. McNeal telephoned the Adoption Information Center at its advertised toll-free number, 1-800-96Adopt, to obtain information about adopting a child. She was sent a packet of materials, which included a section entitled "Adoption and the African-American Child." The Adoption Information Center also suggested she contact One Church, One Child of Florida for further information. Ms. McNeal was encouraged about her chances to adopt an African- American child when she read in the materials provided to her by the Adoption Information Center that some agencies will accept applicants for adoption who are single and who receive public assistance. Ms. McNeal is the single mother of a twelve-year-old daughter and has been on public assistance for the past two years. Ms. McNeal called One Church, One Child and told the representative that she wanted to become a foster or adoptive parent. This request was passed from One Church, One Child to Priscilla Knight, a Family Support Worker with the Department, who acts as liaison between the Department and One Church, One Child. Ms. Knight is a member of a unit within the Department responsible for recruiting and training prospective foster and adoptive parents. When she is contacted by a person who is interested in becoming a foster or adoptive parent, she invites them to an orientation meeting where more detailed information is provided. If the person is still interested, an initial visit will be made to the home of the prospective foster or adoptive parents, and, if the results of the initial visit are satisfactory, the prospective foster or adoptive parents are referred to the required Model Approach to Partnerships in Parenting ("MAPP") training. This procedure was followed in evaluating Ms. McNeal's request. The family income is one of the factors the Department looks at to evaluate the suitability of persons to become foster or adoptive parents. Ms. McNeal is not employed, and her income consists of $50.00 per month in child support for her twelve-year-old daughter and $241.00 per month in Aid to Families with Dependent Children payments. She also receives $201.00 per month in food stamps. Her monthly expenses consist of $19.00 per month for rent in government subsidized housing, $40.00 per month for electrical service, $30.00 per month for telephone service, and $300.00 per month for food, for a total of $389.00. This leaves $103.00 per month for all other expenses she and her daughter incur. Ms. McNeal's income is barely sufficient to provide for her and her daughter's stability and security, and it would not be sufficient to meet the needs of the family should she receive a foster or adoptive child.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health and Rehabilitative Services enter a final order denying the request of Tara McNeal to be accepted as a foster or adoptive parent. DONE AND ENTERED this 30th day of May 1996 in Tallahassee, Leon County, Florida. PATRICIA HART MALONO, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of May 1996.
The Issue The issue in this case is whether the Respondent, the Department of Health and Rehabilitative Services (HRS), should grant the application of the Petitioners, Charles Wenz and Janet Gallagher, for a family foster home license. 1/
Findings Of Fact Through series of circumstances, the Petitioners in this case--Charles Wenz and Janet Gallagher, husband and wife--came to know the children of a woman named N. M. 4/ Their priest told them about Nancy and her predicament. A serious drug and alcohol addict, and already the single mother of two boys (J. D., born December 30, 1977, and B. F., born January 7, 1983), each of whom had a different biological father, she was about to have another child by yet another man. The Petitioners were asked to help the family, and they agreed. Shortly after the third child--a girl, N. F., born November 4, 1988-- was released from the hospital, the mother asked the Petitioners to let the family live with them temporarily. Not long afterward, the mother slipped back to her way of abusing drugs and alcohol and left, leaving the children with the Petitioners. For some time, the Petitioners cared for the children without being licensed as a family foster home and without any financial assistance from HRS. Later, in approximately March, 1991, they became licensed as a family foster home for the specific and limited purpose of caring for the children of M. 5/ When it came to the children in their care, the Petitioners generally were very attentive to their needs for food, clothing, shelter and medical care, and they provided very well for the children, following up on all doctor appointments and the like. They were very conscientious in this regard. Generally, they got along well with the children, and the children tended to view them as if they were their real parents. As a result of their involvement with the family, the Petitioners came to know the children's maternal grandparents. While initially the Petitioners got along fairly well with the maternal grandparents, they had the opportunity to form opinions of them based on personal experience and stories related by the children and, later, by the fathers of the two boys. Essentially, the Petitioners thought the maternal grandparents were good grandparents, and they encouraged and cooperated in the maintenance of a relationship between the children and the maternal grandparents. At the same time, they did not perceive the maternal grandparents as a good option for permanent placement of the children. Besides the maternal grandparents' age and limited physical and emotional capabilities, and their lack of interest in being permanently responsible for the children on a full-time basis, the Petitioners also had a concern about what they understood to be the maternal grandfather's drinking habits. Instead, since reunification with the mother did not seem feasible to either the Petitioners or to HRS, the Petitioners felt the best option, at least for the boys, would be to investigate their reunification with their fathers. Along with HRS, the Petitioners were instrumental in locating the fathers of the boys and reestablishing contacts between them and their sons. Along with HRS, they actively encouraged and fostered the strengthening of the relationship between the boys and their fathers and worked with HRS to bring the men into a position to begin to care for their sons permanently on a full-time basis. When the Petitioners became licensed as a child-specific family foster home in approximately March, 1991, they agreed to work within the policies and procedures established by the Department and to accept supervision by a foster care counselor. There was no evidence that they were not supportive of the efforts outlined in the foster care agreement or plan. 6/ But problems between the Petitioners and the maternal grandparents developed between the time of the Petitioners' licensure and September, 1991. The problems got so bad that the HRS counselor assigned to the case had to conduct visitation in his office to ascertain who was causing the problems and how to best resolve them. The problems culminated in the maternal grandparents' ultimatum that they no longer could work with the Petitioners as foster parents and that they wanted the children placed with them, the grandparents. The problems worsened as HRS began to investigate the possibility of placing the children with the grandparents. 7/ The Petitioners were against this and attempted to use their positions as foster parents to thwart HRS efforts in that direction. A senior HRS counselor replaced the initial counselor in an effort to shepherd the grandparent placement, with its attendant visitations. But, although regular visitations by the grandparents was prearranged during the fall of 1991, 8/ the Petitioners consistently raised various obstacles to the grandparent visitations, requiring multiple interventions by the HRS senior counselor and others at HRS. Three times, despite HRS interventions, visitation had to be cancelled. The Petitioners' case was taking such an inordinate amount of time that the HRS senior counselor went to his supervisor for relief. The grandparents felt the need to go to court to have the court establish visitation over the Christmas holidays. A hearing had to be held on or about December 10, 1991, and the court granted the grandparents overnight visitation from December 25 through 30, 1991. On inquiring of the children on their return, the Petitioners believed the grandparents did not properly administer prescribed medications for two of the children and accused the grandparents of child abuse. HRS investigated and found that the grandparents had been in direct telephone communication with two of the children's doctors to resolve a discrepancy between two of their medication prescriptions and had followed the telephone instructions of the doctor in charge of the prescription. In connection with the problems with the grandparents, the Petitioners exhibited a clear tendency to try to manipulate the foster care system to their advantage, even unintentionally to the detriment of the interests of the children, and sometimes, out of overzealousness, through use of untruths and half truths. On one occasion, in an attempt to persuade the first HRS counselor not to pursue placement of the children with the grandparents, they told the counselor that an HRS protective services worker had told them that the maternal grandfather had a drinking problem. In fact, it was the Petitioners who had alleged to the protective services worker that the maternal grandfather had a drinking problem. On another occasion, to avoid allowing the grandparents to pick up the children for visitation, the Petitioners cited a supposed statute or rule making it illegal for the grandparents to provide transportation for the children. 9/ Once the boy, B. F., lost a hospital pass for use to visit his grandparents because of problems raised by the Petitioners concerning the legality of the grandparents providing transportation for him. In addition to the problems with the maternal grandparents, the Petitioners exhibited a certain tendency to take things into their own hands when closer contact and consultation with HRS would have been advisable. Once they made arrangements for one of the boys to be admitted to a psychiatric hospital without consulting with HRS and did not advise the counselor until shortly before admission. To attempt to justify their actions to the HRS counselor, the Petitioner told the counselor that the boy's family therapist strongly favored hospitalization for psychiatric treatment. In fact, the counselor later found that the family therapist only had said that it might become necessary at some point to hospitalize the boy. Once the Petitioner, Charles Wenz, used corporal punishment on one of the boys although he knew it was against HRS policy for operators of a family foster home to use corporal punishment. He explained that, due to the history of the Petitioners' relationship with these children, the Petitioners felt more like parents than foster parents and that he did not think it was appropriate in their case for the usual prohibition against corporal punishment to apply to them. Later, Mr. Wenz had another occasion to use a form of corporal punishment on the other boy. 10/ In January, 1992, the Petitioners applied to renew their "child- specific" license as a family foster home. On or about February 1, 1992, the court placed the children with the maternal grandparents, and the Petitioners converted their application to one for general licensure as a family foster home.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Petitioner, the Department of Health and Rehabilitative Services (HRS), enter a final order granting the application of Charles Wenz and Janet Gallagher for general licensure as a family foster home. RECOMMENDED this 13th day of July, 1992, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of July, 1992.
The Issue Whether Petitioners' application for renewal of their family foster home license should be denied on the grounds set forth in the October 17, 1997, letter that they received from the Department of Children and Family Services (Department). 1/
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made: Petitioners' Household Petitioners are husband and wife. They live in a four- bedroom home in Riviera Beach, Florida. Mrs. Wright and her husband have eleventh and twelfth grade educations, respectively. Mr. Wright has been semi-retired for four or five years, and he receives social security payments. To supplement this income, he works on a regular basis as a gardener. Mrs. Wright is a homemaker. Petitioners have six natural children, all of whom are adults and live outside of Petitioners' home. Petitioners also have two adopted children, both of whom live with Petitioners. Their adopted son, Bertain, is 17 years of age. Tracy Michelle, their adopted daughter, is approximately five years younger than Bertain. There are two other current members of Petitioners' household, Tmorris C. and Tavares T., the young sons of one of Petitioners' daughters. Tmorris and Tavares were taken from their mother and placed in Petitioners' custody by the Department in 1996, when Tmorris was approximately 11 months old and Tavares was almost two years of age. Petitioners' Record as Family Foster Home Licensees Petitioners are seeking the renewal of a family foster home license that they were first issued in 1977. In the 19 years that they operated a licensed family foster home, Petitioners cared for many foster children, including those with special needs. They treated their foster children in the same loving and caring manner that they treated their own children, and provided them with a reasonably safe and nurturing environment. At no time during the period that they operated their family foster home did the Department or its predecessor initiate any action to effect the revocation of Petitioners' license. Petitioners were last relicensed in 1996, pursuant to the recommendation of Jo Ann Weisiger, a Children and Families relicensing counselor who issued the following report after conducting a relicensing home study: AGENCY EXPERIENCE Mr. and Mrs. Wright were initially licensed on 09/26/77. COMPOSITION AND DESCRIPTION OF THE HOME The Wrights reside in Riviera Beach, just north of 8th Street, near schools, churches and other health and recreational facilities. Mr. Wright is painting the interior of the house. Current residents of the home are Sam Wright, age 73; Ruby Wright, age 62; adopted daughter, Tracy Michelle Wright, age 10; and son Berta[i]n, 14. There have been no major changes in the household during the past year. FOSTER CHILDREN IN THE HOME/QUALITY OF LIFE During the past year, the Wrights have cared for 16 foster children. There are currently 6 foster children in the home; Julius [H.], 5; Robert [D.], 7; Kenneth [J.], 7; Sheanna [W.], 7; Steven [W.], 6; and Amanda [W.], 4. There have been issues arising concerning allegations of physical discipline in the home, but none of these could be substantiated. The children have been appropriately clothed during licensing visits. Mrs. Wright responds to school concerns and transports to medical appointments. During a visit to the home on 3/20/96, the children all responded affectionately to the foster parents, and seemed happy and adequately cared for in this home. The children have been interviewed on two separate occasions and showed no fear of the foster parents, no signs of marks or bruises, and made no statements indicating that they have been spanked. The two older Willis children have severe developmental and emotional problems, and the Wrights have requested that they be replaced as soon as possible. They are difficult to handle, and inappropriately placed in this home. EMPLOYMENT/FINACES Mr. Wright is retired and the Wrights receive $1600.00 in Social Security and retirement income. They appear to manage their finances adequately. HEALTH AND SAFETY ISSUE Although Mr. Wright is in his seventies, he is active and involved with the children. Sanitation inspection on 2/21/96 was satisfactory. IN-SERVICE TRAINING Both foster parents completed Mini Mapp on 5/17/95. They will have 7 hours in this relicensing period, and attended the MAPP 11 training on 2/20/96 for an additional 3 hours. REFERENCES/SCREENING Local and PBSO law enforcement checks showed no records for the Wrights, and the Abuse Registry check was clear. Mr. Wright has been re-screened for fingerprints, as the original fingerprint records were lost from 1987. There are no new household members. No staff inquiries were returned, but there have been no major concerns expressed by any of the counselors who visit the home. The concerns about spanking the children have been addressed, and there is no indication that the Wrights are using inappropriate discipline. SUMMARY/RECOMMENDATIONS Relicense for 3 children, school age. Due to Mr. Wright's age, over capacity should be avoided whenever possible. In early 1996, as part of the license renewal process, Petitioners signed an "Agreement to Provide Substitute Care for Dependent Children." In so doing, they agreed to, among other things, the following: We are fully and directly responsible to the department for the care of the child. . . . We will accept the above board rate per month [$185.00] on behalf of the child in accordance with the department's established uniform rate structure for dependent children. . . . 15. We will comply with all requirements for a licensed substitute care home as prescribed by the department. . . . Petitioners last had foster children in their home in December of 1996. At that time only three of the six foster children mentioned in Ms. Weisiger's report remained in the home. Sheanna W., Steven W., and Amanda W. had been placed elsewhere at Petitioners' request. The Department's Allegations: What the Evidence Shows Specific Allegations in the October 17, 1997, Denial Letter Alleged Lack of Interest in Educational Needs Petitioners took an interest in the educational needs of their foster children. They asked their foster children, on a regular basis, if they had homework and, if the children responded in the affirmative, made sure that the children did their homework. Petitioners themselves did not assist the children in completing homework assignments, but, if the children needed such assistance, Petitioners made arrangements for other members of the family (who were better equipped to provide assistance) to help the children. Kenneth J. is the foster child referred to in the second and third sentences of the paragraph of the October 17, 1997, denial letter detailing Petitioners' alleged "[l]ack of interest in [their foster] children's educational needs" (Education Paragraph). If in fact Kenneth told a counselor that Petitioners ignored his request for help in completing the assignment referred to in the second and third sentences of this paragraph, 3/ Kenneth was not being truthful. If Kenneth did not receive any assistance at home on this project, it was only because he did not let Petitioners know that he needed help. He invariably told Petitioners, when asked by them about his homework, either that he had done his homework at school, or that he knew how to do it without anyone's help. The foster child involved in the "permission slip" incident discussed in the fourth sentence of the Education Paragraph was actually Robert D., not Kenneth J. (as the paragraph suggests). Although Robert's teacher may have sent home with him a form for Petitioners to sign to permit Robert to go on a class trip, Robert never presented the form to Petitioners. Instead, he told Mrs. Wright that he had lost the form. Mrs. Wright advised Robert to ask his teacher for another permission slip. The next morning, Robert's teacher telephoned Petitioners and spoke with Mrs. Wright about Robert's failure to hand in a signed permission slip. Mrs. Wright explained to the teacher that Robert had told her that he had lost the permission slip he had been given to take home. The teacher advised Mrs. Wright that she would send Petitioners another permission slip for them to sign. Upon receiving this second permission slip, Mrs. Wright signed it and returned it to the teacher, and Robert thus was able to go on the trip. Julius H. is the foster child who, according to the fifth sentence of the Education Paragraph, allegedly had accumulated in his book bag four weeks worth of papers that were "sent home" with him. Julius was in kindergarten at the time. Mrs. Wright actually saw these papers that Julius had brought home from school with him (in his book bag) during this four-week period. After Mrs. Wright removed the papers from the book bag, Julius put them back in the bag, explaining to Mrs. Wright that he needed to keep the papers. Alleged General Lack of Interest in Needs of Foster Children Petitioners made a good faith effort to meet the individual needs of their foster children. Kenneth J. is the foster child referred to in the first and second sentences of the paragraph of the October 17, 1997, denial letter detailing Petitioners' alleged "general lack of interest in the individual needs of the foster children placed in [their] home" (Needs Paragraph). It is true that, at first, Petitioners did not have a Medicaid card for Kenneth, as alleged in this portion of the Needs Paragraph. There is, however, no truth to the assertion that, because they did not have his Medicaid card, Petitioners did not get the vitamins that had been prescribed for Kenneth. In fact, they purchased the vitamins with their own funds. Furthermore, Mrs. Wright told Kenneth's counselor, the next time she saw the counselor, that she did not have Kenneth's Medicaid card. Robert D. is the foster child referred to in the third sentence of the Needs Paragraph. Mrs. Wright did in fact learn that Robert had been playing with fire, as this sentence suggests. There, however, was only one such incident (not three) and it occurred, not in the home, but outside of the home in an area where Robert was playing with other children. One of the other children alerted Mrs. Wright, and she went outside to investigate. When she arrived at the scene, the fire was already out. Mrs. Wright spoke with Robert about the matter. He promised not to play with fire again, and he kept his promise. There were no subsequent incidents. Following the incident, Mrs. Wright telephoned Robert's counselor and told the counselor what Robert had done. The Restraining Order against Bertain In August of 1996, Bertain was involved in a dispute with Robert D.'s and Julius H.'s brother, Jessie S., who lived across the street from Petitioners' home. The dispute concerned a girl that Bertain and Jessie both liked. Before the dispute arose, Bertain and Jessie were good friends. The dispute caused a rift in their relationship and it escalated to the point where Jessie's aunt, with whom Jessie has living at the time, sought and obtained (on Jessie's behalf) a restraining order (dated August 26, 1996) against Bertain, which provided as follows: THIS CAUSE came to be heard on August 14, 1996 upon Petitioner's application for an Injunction for Protection Against Repeat Violence pursuant to Section 784.046, Florida Statutes, and it appearing that an immediate and present danger of Repeat Violence exists, and the court being fully advised in the premises, it is: ORDERED AND ADJUDGED that Respondent: RUBY WRIGHT O/B/O BERTAIN WRIGHT (MINOR CHILD) is hereby restrained and enjoined from committing any acts of violence, to wit: assault, battery, sexual battery or stalking on the Petitioner: ANNA WHITE & ANNA WHITE O/B/O JESSIE [S.](MINOR CHILD) or any member of Petitioner's immediate family. The Respondent is restrained from threatening the Petitioner or any member of the Petitioner's immediate family, either directly or indirectly, at any time or place whatsoever. Respondent shall not enter on Petitioner's residential premises . . ., or wherever Petitioner may reside in the State of Florida. Respondent shall not enter onto Petitioner's place of employment . . ., or wherever Petitioner may be employed in the State of Florida. Upon Petitioner's request an officer from an appropriate law enforcement agency shall accompany the Petitioner and assist in the execution of service of the Injunction. The following provisions are necessary to protect the Petitioner from Repeat Violence. THE PARTIES SHALL HAVE NO CONTACT IN PERSON, DIRECT OR INDIRET, BY PHONE, BY MAIL, BY THIRD PERSONS, EXCEPT BY COURT ORDER, AT COURT APPEARANCES OR THROUGH ATTORNEYS. Any relief granted by this Injunction shall be effective for a period not to exceed months form the date hereof. The Petitioner may petition the court for extension of provisions of this Injunction prior to the conclusion of the period specified herein. The Clerk of the Court shall forward a copy of this Injunction to the Sheriff with jurisdiction over the residence of the Petitioner within twenty-four (24) hours after its entry. THIS INJUNCTION IS VALID AND ENFORCEABLE IN ALL COUNTIES OF THE STATE OF FLORIDA. This was the first and last time that Bertain was involved in any legal proceeding concerning his conduct. Bertain's dispute with Jessie did not interfere with Bertain's relationship with Robert and Julius. Bertain continued to get along well with both Robert and Julius, notwithstanding the dispute. Mrs. Wright discussed the subject of the dispute and the resulting restraining order with Mary Bosco, a Department administrator involved in the licensure of family foster homes. During the conversation, Mrs. Wright told Ms. Bosco that she (Mrs. Wright) was doing her "best with Bertain," but she could not go everywhere that Bertain went, a comment that should not be construed to reflect negatively upon Mrs. Wright as a parent. It would be unreasonable to expect a parent to accompany a teenage son the age of Bertain (at the time of Mrs. Wright's conversation with Ms. Bosco) everywhere the son went. There has been no showing that Petitioners have acted irresponsibly in discharging their responsibilities as Bertain's parents. Other Specific Allegations In its Proposed Recommended Order, the Department asserts that "Petitioners exhibited poor judgment in allowing the children (T. C. [Tmorris] and T. T. [Tavares]) named in F.P.S.S. #96-125319 to spend time unsupervised with their mother." The evidence establishes, however, that when Petitioners (specifically, Mrs. Wright) brought Tmorris and Tavares to visit their mother (which visits the judge in the dependency proceeding encouraged), Mrs. Wright remained with the boys for the duration of the visit. The Department also states in its Proposed Recommended Order that "Department counselors had to 'beg' Petitioners to cooperate in providing services to the foster children." Although the Department does not identify the children to whom it is making reference, it appears that the Department is referring to Tmorris and Tavares, who technically are not Petitioners' foster children inasmuch as Petitioners are their grandparents and do not receive reimbursement for caring for them. 4/ In any event, the evidence does not support the Department's assertion concerning Petitioners' reluctance to ensure that their grandchildren (while in their care) received needed services. Rather, it appears that, when Petitioners became aware of the children's need for services, they acted in a reasonable and responsible manner. In its Proposed Recommended Order, the Department further alleges that "[a]t one time Petitioner[s] requested that their own grandchildren be removed from their home due to the fact that they were no longer receiving foster care payments for them." Mrs. Wright did initially become upset when she learned that she and her husband would not be receiving any payments from the State for caring for Tmorris and Tavares. She then "thought differently about the matter" and realized that she and her husband had made the right decision in agreeing to assume responsibility for caring for their grandchildren, notwithstanding that they would not be paid for doing so. The additional allegation is made in the Department's Proposed Recommended Order that "Petitioners failed to provide appropriate educational and recreational activities for the children [who lived in their home] and lack the capacity to do so." According to the Department, the children spent "the majority of their hours watching television." The evidence, however, reveals otherwise. Petitioners provided the children with bicycles to ride and games to play. They went fishing with them and took them to the park on a regular basis. Whenever Petitioners went to visit relatives, the children accompanied them. Living with Petitioners did not result in the children being deprived of appropriate educational or recreational activities.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order declining to deny Petitioners' application for renewal of their family foster home license on the grounds set forth in October 17, 1997, letter that they received from the Department. DONE AND ENTERED this 30th day of November, 1998, in Tallahassee, 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 Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 1998.
The Issue The issue in this case is whether HRS should select the Petitioners as the adoptive parents of M. C.
Findings Of Fact The Petitioners, Rosa and Edwin Wise, live in Bradenton, Florida. They have been married since 1986. They have a strong and sharing marriage relationship; each considers the other not only spouse but best friend. They have been HRS-licensed foster parents since approximately 1992. Both are in good health. The Wises have experience foster-parenting children with "special needs." For approximately 18 months to two years, they were the foster parents of two African-American siblings. The older boy was nine months old when the Wises became his foster parents; the younger girl was just three months old when the Wises became her foster parents. The girl was cocaine-dependent at birth and had developmental delays as a result. Happily, not only were the Wises very successful foster parents for the children but the family was able to be reunified successfully. Today, some two years after reunification, the Wises continue to have a wonderful relationship with the children and their mother, and children's mother continues to be grateful to the Wises for what they have done and continue to do for her and her children. Since the Wises had notified HRS that they would be happy to foster parent one or two "special needs" children again, HRS contacted them in early July, 1995, to ask if they would be foster parents for a high risk, cocaine-dependent African- American newborn girl, M. C. The Wises readily agreed. Rosa went to see the infant in the hospital the next day, and they continued to visit daily during the infant's week-long hospital stay. They began acting as the child's foster parents as soon as the baby was discharged from the hospital. A warm and loving relationship quickly blossomed between the Wises and the infant, and the Wises soon expressed a desire to adopt the child if parental rights were terminated-- unfortunately, a probable outcome in this case. (The infant's mother was addicted to cocaine, had abandoned the child at the hospital after birth, and gave no indication of having any desire or ability to mother the child.) M. C. had older siblings, but all but one of them were in the full-time care and custody of family members who were unable to care for any more full-time. One brother was in the care and custody of another foster parent, who had expressed a desire to adopt him. It was agreed between HRS and the two sets of foster parents that it was not especially desirable for the infant and her brother to be adopted as a sibling group. Due to alleged "confidential information pertaining to another child," HRS refused to disclose to the Petitioners the entire contents of the Referral for Permanency Staffing form signed by the Wises on August 9, 1995, and the Petitioners did not further pursue disclosure of the information. But the evidence is clear that the Wises consistently expressed to HRS their desire to adopt M. C. (and, if necessary, her brother) if parental rights were terminated. HRS staff urged them to be patient in awaiting termination of parental rights, a prerequisite to initiation of the adoption process. A staffing conference was held on August 8, 1995, in the matter of the children. Participating were the Wises, their foster care counselor, the adoption counselor, the adoption counselor's acting supervisor, the program specialist, and others. The evidence was that, as a result of the staffing conference, the staffing committee approved a plan to expedite termination of parental rights. The committee specified the need for a "complete developmental evaluation" by August 25, 1995. The evidence was not clear what a "complete developmental evaluation" entails, or whether one was completed. No HRS employee who would have knowledge of exactly how HRS initially went about exploring the suitability of the Wises to adopt M. C. was available to testify at final hearing, and the Petitioners were not able to prove those details. However, the evidence was clear that, by approximately September 9, 1995, the program specialist involved in the matter expressed to the Wises his "concerns" about the Wises. When they asked him what the concerns were, he answered vaguely that they were "cultural." When pressed, he declined to be more specific but instead referred the Wises to the adoption counselor. The Wises suspected that the "concern" was that the Wises are Americans of European ancestry. HRS did have available at final hearing its "One Church One Child Coordinator," 1/ who testified that in approximately late September or early October, 1995 (she also could not specify when, and the Petitioners could not prove exactly when), she received a telephone contact from within HRS asking her for the names and home studies of qualified African-American prospective adoptive parents who might be interested in adopting M. C. The HRS One Church One Child Coordinator reviewed the information available to her and provided several names and home studies to the adoption counselor working on the M. C. adoption and the adoption counselor's acting supervisor. From the names and home studies, the three HRS workers chose three prospective adoptive parents for consideration along with the Wises. On or about October 11, 1995, HRS's adoption and related services (ARS) Children and Family (C&F) senior counselor and supervisor wrote the program specialist an Inter-Office Memorandum recommending that the Petitioners "be approved for adoption for one or two children" and noting that they "indicated, they would like to have a sibling group of two of any race." 2/ In addition, by this time bonds had formed between M. C. and the Wises that were as strong as any a three to four month old could have. Despite the October 11, 1995, memo, an HRS meeting was held some time before the end of October, 1995 (the HRS witness again could not specify the date), among the One Church One Child Coordinator, the adoption counselor, the adoption counselor's acting supervisor, an operation program administrator, a district program manager, an HRS attorney and perhaps others for the purpose of selecting adoptive parents for M. C. from among four sets of prospective adoptive parents--the Wises and the three chosen from among the One Church One Child names and home studies. On or about October 31, 1995, Rosa Wise was notified by telephone that HRS had chosen one of the others, a single African-American female, to adopt M. C. The Wises were required to allow the person chosen to have overnight visitation with the child. There is no evidence as to whether the HRS staff decision was reviewed by the HRS district administrator,3 but HRS staff notified the Wises on November 15, 1995, that HRS had chosen one of the others to adopt M. C. Staff also notified the Wises that the adoptive parent selected by HRS staff was supposed to have overnight visitation from November 17-20 and again from November 22-27, 1995, with placement to be made the next day. By letter from HRS's attorney dated November 17, 1995, the Wises and their attorney were given notice "of HRS' intention to exercise final adoptive placement in favor of another family." The child was not returned to the Wises on November 21, 1995, as planned.4 Then, instead of having the child returned to the Wises on November 28, 1995, the parties went before the circuit judge in the dependency case involving M. C., and the judge entered an order authorizing the child to remain in the care and custody of the prospective adoptive parent chosen by HRS pending the resolution of Section 120.57 administrative proceedings. The Wises did not believe that HRS would allow them visitation or other contact with M. C. during the pendency of these proceedings, and they did not pursue it. They have not seen the child since approximately November 16, 1995. The evidence indicated that, by the time of the final hearing, M. C. had grown at least as attached to her new foster mother as she was to the Wises. Based on the evidence, there is no reason not to believe that the Wises would have been, and still would be, warm and loving parents who would provide M. C. with a home in which the child would thrive. They clearly were "suitable" adoptive parents. HRS did not allow the adoption to proceed only because of "cultural concerns"--i.e., the Wises were not African- American. It was felt by HRS staff--in particular, the program specialist--that these "cultural concerns" could override any foster parent preference in favor of the Wises and that inquiry should be made as to whether there were African-American prospective adoptive parents who could adopt M. C. After the African-American prospective adoptive parents entered the picture, HRS staff decided what it considered to be the best interest of the child, taking into account the "cultural" considerations. Essentially, as between the Wises and the person ultimately chosen to be the adoptive parent, HRS staff decided that the latter would be better able to "maintain the child's culture and give the child emotional support," although the Wises clearly were committed to value, respect, appreciate, and educate the child regarding her racial and ethnic background and to permit the child the opportunity to know and appreciate her ethnic and racial heritage. On balance, the other factors cited by HRS actually were neutral at best; some seemed bogus.5 On the evidence presented at final hearing, it is difficult to say whether HRS's choice against the Wises was, on balance, against the best interest of the child. There were factors in favor of both the Wises and in favor of the person chosen by HRS. Perhaps, given HRS's rules, the choice HRS made at that time was wrong. However, the Wises clearly were unable to prove that, at this time, it is in the best interest of the child to require her to be adopted by the Wises instead of the foster mother she has had for the past seven to eight months.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that HRS enter a final order denying the Petitioners' request to be selected as the adoptive parents of M. C. DONE and ENTERED this 15th day of August, 1996, in Tallahassee, Florida. J. LAWRENCE JOHNSTON, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of August, 1996.
Findings Of Fact Ms. Wilson is a 22 year old, female. Ms. Wilson is a single parent. She provides care for one child, her eighteen month old son. Ms. Wilson has not been married. Ms. Wilson's annual income is approximately $6,000.00. Ms. Wilson's income consists of Social Security benefits, Aid to Families with Dependent Children and food stamps. Ms. Wilson pays approximately $129.00 per month for rent, $60.00 to $70.00 for utilities and $50.00 for furniture. Her food is paid for with the food stamps she receives. Ms. Wilson has an automobile which is paid for. Ms. Wilson is able to live on the income which she receives. Ms. Wilson had open heart surgery when she was three years of age. Ms. Wilson is under no medical restrictions as a result of her heart surgery. Ms. Wilson's physician has told her to have a physical every three years, however. Ms. Wilson is not employed. She quit her last job when she became pregnant with her son. Ms. Wilson's last job was at the Madison Stock Yard where she worked for four years. Ms. Wilson is physically able to work. Ms. Wilson does not plan to work. She intends to devote full time to being a foster parent. Ms. Wilson made inquiry with the Respondent concerning her participation in the foster parent program. Ms. Wilson told Department personnel that she had not been married. Ms. Wilson participated successfully in training sessions known as Model Approach to Partnership and Parenting training. On September 4, 1990, Ms. Wilson filed an Application for License to Provide Foster Home Care for Dependent Children with the Department. Respondent's Exhibit 2. The space for "Husband's Signature" on the Application was left blank. Pursuant to a contract between Florida State University and the Department, a home study was conducted and a report dated August 7, 1990, was prepared for consideration by the Department. In the home study, the following "Initial Placement Recommendations" were made: "One or two children, male or female, age 3-10." Staff of the Department's District 2 reviewed Ms. Wilson's application for licensure and determined that Ms. Wilson met all statutory requirements to become a foster parent. Staff recommended that Ms. Wilson be approved to foster parent one child, new born to five years of age, male or female. Following review of the application by the Department's District 2 staff, the application was reviewed by Larry Pintacuda, Program Administrator of the Children, Youth and Families office of the Department's District 2. Mr. Pintacuda has been delegated authority to disapprove applications for licensure as a foster parent. After reviewing Ms. Wilson's application and the information concerning her application, Mr. Pintacuda decided that Ms. Wilson's application should be denied. Mr. Pintacuda's decision was based upon the following: Ms. Wilson's age; Ms. Wilson is a single parent, with one child to care for already; Ms. Wilson does not receive child support payments; Ms. Wilson's annual income; The potential stress on Ms. Wilson of caring for a foster child. Mr. Pintacuda believed that Ms. Wilson is unable to work because of the stress on her heart. The weight of the evidence failed to prove that Mr. Pintacuda's concerns would prevent Ms. Wilson from being an acceptable foster parent: The weight of the evidence presented failed to prove that a person 21 years of age is not capable of caring for a foster child; The weight of the evidence presented failed to prove that Ms. Wilson is not capable of caring for more than one child as a single parent. The fact that she is currently caring for an eighteen month old child indicates that she is capable of caring for children even though she is a single parent; & d. The weight of the evidence failed to prove that Ms. Wilson cannot financial herself and her child. The weight of the evi- dence proved just the opposite. Mr. Pintacuda was not even aware of what Ms. Wilson's expenses were; e. The weight of the evidence failed to prove that Ms. Wilson will not be able to handle the stress of being a foster parent. Ms. Pintacuda's concern was evidently based upon a statement in the home study conducted pursuant to the Department's agreement with Florida State Univer- sity that "Ms. Wilson had open heart surgery when she was three years old, thus she does not work to avoid stress on her heart." The truth of this statement was not proved by competent sub- stantial evidence at the formal hearing. Addi- tionally, the competent substantial evidence presented at the formal hearing proved that the statement that Ms. Wilson does not work "to avoid stress on her heart" is not correct. See findings of fact 7-9. The Department first informed Ms. Wilson of the specific reasons for denying her application at the commencement of the formal hearing. The Department did not specifically state that Ms. Wilson's application had been denied because she had not been legally married for at least one year as required by Rule 10M-6.005(3)(a), Florida Administrative Code. Ms. Wilson was not, therefore, afforded a fair opportunity to prove that there is "good cause" to approve her application despite her failure to meet the requirements of Rule 10M-6.005(3)(a), Florida Administrative Code. There is good cause to approve Ms. Wilson's application despite the fact that she has not been legally married: (1) Ms. Wilson already is caring for a child; (2) Ms. Wilson does not work, so she will be available to provide full time to caring for a foster child, she completed the training for foster parents provided by the Department; and (3) everyone other than Mr. Pintacuda that reviewed Ms. Wilson's case recommended approval of her application.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a Final Order approving Ms. Wilson's application to be a foster parent for one child, new born to 5 years of age, male or female. In the alternative, if the Department concludes that good cause for not applying Rule 10M-6.005(3)(a), Florida Administrative Code, has not been proved, Ms. Wilson should be given an opportunity to provide further proof. RECOMMENDED this 26th day of April, 1991, in Tallahassee, Florida. LARRY J. SARTIN 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 26th day of April, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-0601 The parties have submitted proposed findings of fact. Ms. Wilson's proposed findings of fact were contained in a letter. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Petitioner's Letter Paragraph Number in Recommended Order Sentences in Letter of Acceptance or Reason for Rejection 1 7. 2 6. 3 Hereby accepted. 4-9 Not supported by the weight of the evidence. 10-11 8. 12 Not supported by the weight of the evidence. 13 10. 14-15 Not supported by the weight of the evidence. Hereby accepted. Hearsay. See 11. See 12. 20-22 Not supported by the weight of the evidence. 23 See 4. 24 5. 25-26 Not supported by the weight of the evidence. The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1 and 3-4. 2 6. 3 13. 4 14. 5 15. 6 16. 7 17. 8 COPIES FURNISHED: See 18 and 19 Annie Lois Wilson, pro se Route 1, Box 248 Pinetta, Florida 32350 Harold D. Lewis District Legal Counsel Department of Health and Rehabilitative Services District 2 2639 North Monroe Street Suite 200-A Tallahassee, Florida 32399-2949 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0500
