The Issue Whether the Division of Administrative Hearings has jurisdiction over this matter. Whether Petitioners applied to adopt the two young granddaughters of Petitioner Linda Richards and, if so, whether Respondent failed to appropriately consider that application. Whether Respondent's counselors had the duty to advise Petitioners as to their legal rights pertaining to the adoption of the two children and whether they failed to perform that duty.
Findings Of Fact Petitioners are married. Petitioner Linda Richards is the paternal grandmother of B. T., a female born May 2, 1997, and of M. E. W., a female born August 13, 1998. Although B. T. and M. E. W. have different last names, they are sisters. On August 25, 2000, the parents of the two children executed in open court affidavits of surrender and consent for termination of their respective parental rights to the minor children under Section 39.806(1)(a), Florida Statutes. By Order signed and dated October 3, 2000, the Honorable Moses J. Baker, Circuit Judge in and for Palm Beach County, Florida, terminated the parental rights of the parents and placed the children in the permanent care and custody of Respondent for subsequent adoption. Judge Baker ordered Respondent to provide a plan for permanency for the children and ordered that a hearing be scheduled within 30 days. Petitioners had taken care of the children for much of their lives, and the children were in their custody when the rights of the parents were terminated. The children resided in the legal and physical custody of Petitioners from January 13, 1999, to February 17, 2001. When the children's case was transferred to Respondent's adoption unit, Petitioners were suitable candidates for their adoption, and their application for adoption would have received priority over other applications.1 Respondent evaluated the home and found it suitable when the children were initially placed there. On November 29, 2000, Nancy Bent (Wilkins), a family services counselor, requested certain information from Petitioners. Petitioner Linda Richards wrote Ms. Bent the following letter in response: We are the grandparents to [sic] [the two children]. I filled out the papers you sent to me. We are not willing to adopt the children to a family we have not first met and agreed to. The children are very important to us and we are seeking an open adoption2 with a family in California. I was told by Nadine Sindelar that you have been advised of that. The children are doing very well. They are well adjusted. They are very happy. They live in an affluent neighborhood and have all the amenities and social pleasures that go along with a family that earns over $130,000 a year. We want to keep their life style similar to that which they now have. We want to remain in some contact with the children after they are adopted. If this is not a possibility or if this cannot be guaranteed then we would like to proceed with the adoption ourselves. Petitioners thereafter worked with Respondent in trying to have the children adopted by a couple in California. After they learned that the California couple had recently adopted another child, Petitioners and Respondent’s counselors agreed that other arrangements should be made for the permanent placement of the children. Petitioners maintained as their goal the adoption of the children to younger individuals within the parameters set forth in Ms. Richards’ letter to Ms. Bent. After the California couple was eliminated, Petitioners expressed concern that the adoptive process was moving too slowly and pressured Respondent to find alternative placement for the children. Thereafter, Respondent found a local couple who wanted to adopt the children and who met the Respondent's criteria for adoptive parents. The match staffing for Respondent’s selection of an adoptive family was held on December 21, 2000. Petitioners were kept advised of this process and that the local couple had been selected to become the adoptive parents. The local couple selected by Respondent to be the adoptive parents expressed a willingness to have an open adoption. Initially, Petitioners expressed pleasure with Respondent’s selection of adoptive parents for the children, they made repeat visits to the prospective adoptive home, and made multiple deliveries of the children’s clothes and other belongings to the prospective adoptive home. In the beginning of February 2001, discussions began between Respondent’s counselors and Petitioners about the transfer timing to the adoptive home. It was at this juncture that Petitioners began to second-guess the prospective adoption, primarily because they were concerned that the adoption was proceeding too rapidly for a smooth transition and because they were concerned about the prospective adoptive parents willingness to permit Petitioners to be involved in the children’s post-adoptive lives. Petitioners expressed an interest in challenging the proposed adoption of the children with their own petition to adopt. On February 13, 2001, Petitioners filed a Petition for Adoption and Injunctive Relief in Circuit Court in Palm Beach County. By their Petition, Petitioners sought to adopt the two children and to enjoin the proposed adoption by the couple selected by Respondent. Petitioners delivered the children to the proposed adoptive family on February 17, 2001. Respondent did not forcibly remove the children from Petitioners. At no time prior to their filing a petition in Circuit Court for the adoption of the children did Petitioners unequivocally express to Respondent their desire to adopt the children. At no time did Respondent’s counselors tell Petitioners that an open adoption could be guaranteed. Once the selection of the proposed adoptive parents was made, Respondent ceased to consider any additional proposals for the permanent placement of the children. Because the children were committed to the custody of Respondent for adoption, Respondent's consent to any adoption is required. Respondent has not consented to the adoption of these children by Petitioners. Respondent has not evaluated Petitioners as prospective adoptive parents for the two children because they never applied to adopt the children prior to filing their petition in Circuit Court. On July 18, 2001, Judge Baker entered an order dismissing the petition filed by Petitioners. At the time of the final hearing in this proceeding, that final judgment of dismissal was on appeal to the Fourth District Court of Appeal. Petitioners failed to establish that Respondent's counselors misled them in any way or failed to provide them accurate information in response to any inquiry. Petitioners also failed to establish that Respondent's counselors were required to explain Petitioners' legal rights to them.
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that Respondent enter a final order dismissing this proceeding. DONE AND ENTERED this 14th day of February, 2002, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 14th day of February, 2002.
The Issue The issue in this case is whether Respondent's foster care license should be revoked for violating Florida Administrative Code Rules 65C-13.009 and 65C-13.010.1
Findings Of Fact The Department is the state agency responsible for licensing and monitoring foster care parents. One of its duties is to monitor foster homes and supervise the background screenings of household members when necessary. Respondent has operated a family foster home for several years. Her most recent family foster home license was issued on or about September 18, 2007. M.G., born on June 13, 2003, was a foster child in Respondent's home for at least six months prior to an Order Changing Placement, dated January 30, 2008, issued by Circuit Court Judge John Griesbaum of the Eighteenth Judicial Circuit in and for Brevard County, that removed the child from Respondent's home and placed her in the temporary custody of the Department pending placement in a new foster home. Judge Griesbaum's eight-page order concluded that Respondent had intentionally withheld information from the Department and the Children's Home Society regarding Jose Diego Fernandez, who lived at Respondent's home from April 2007 through October 2007. On September 13, 2004, Mr. Fernandez entered a plea of guilty to the possession and sale of heroin, in violation of Sections 893.03 and 893.13, Florida Statutes (2004).2 Possession of a controlled substance is a third degree felony. The sale of heroin is a second degree felony. The court withheld adjudication and placed Mr. Fernandez on probation for a period of five years. In 2006, Mr. Fernandez was arrested for possession of heroin with intent to sell and the possession of drug paraphernalia, in violation of his probation terms. Mr. Fernandez entered a plea of guilty to the charges on January 3, 2008.3 Robert Ellis is a probation officer who took charge of Mr. Fernandez' probation in August 2007. Mr. Ellis was familiar with the records regarding Mr. Fernandez' probation dating from 2004. Mr. Ellis testified that on or about April 23, 2007, Mr. Fernandez provided a change of address to the probation office. The new address given by Mr. Fernandez was 1495 Malibu Circle NE, Unit 111, Palm Bay, Florida. This is the address from which Respondent operates her licensed family foster home. Mr. Ellis testified that he had visited Mr. Fernandez at Respondent's house on several occasions, though never inside the house. Mr. Fernandez would meet Mr. Ellis in a screened patio area in front of the house. Mr. Ellis saw the inside of the house only once, when he knocked to inquire whether Mr. Fernandez was at home. Respondent answered the door and told Mr. Ellis that Mr. Fernandez would be back later in the day. Respondent affirmed to Mr. Ellis that Mr. Fernandez was still living there. Mr. Ellis testified that Mr. Fernandez moved out of Respondent's house and into a motel in October 2007. Arlene Clark is a case manager for the Children's Home Society who monitored Respondent's home from late 2005 until November 2007. Respondent had introduced Mr. Fernandez to Ms. Clark as a friend of the family, and Ms. Clark saw him around the house on several occasions. On November 7, 2007, Respondent admitted to Ms. Clark that she had lied when she said that Mr. Fernandez was not living in Respondent's home. Respondent told Ms. Clark that she was just trying to help a friend, and that there was nothing wrong with her actions because the children were not placed in any danger. The Children's Home Society is a "child-placing agency" as that term is defined in Subsection 409.175(2)(d), Florida Statutes. On July 11, 2007, Respondent entered into a "Bilateral Service Agreement" with the Children's Home Society, for the following stated purpose: The purpose of this Agreement is to identify the expectations for both foster parents and the Children's Home Society on behalf of the children and families that are served in the foster care program. This agreement reflects standards of care that are current requirements in Florida Administrative Code, which are based on statutory authority found in section 409.175, Florida Statutes. The premise of this agreement is that the Children's Home Society and foster parents must work as partners to assure safety, to provide for the physical and mental well being and to obtain permanency for each child. Under the heading "Foster Parent Responsibilities to Children's Home Society," the Bilateral Service Agreement provides, inter alia, that the foster parent is required: To notify Children's Home Society immediately of a potential change in address, living arrangements, marital status, family composition (who is in the home), employment, significant health changes or any other condition that may affect the child's well-being. To notify Children's Home Society promptly of all contacts the family or any member of the home has with police or any law enforcement agencies. Respondent did not notify the Children's Home Society that Mr. Fernandez had moved into her home. In fact, Ms. Clark's testimony established that Respondent affirmatively concealed the fact that Mr. Fernandez was living in the foster home.4
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Children and Family Services revoking Respondent's foster care license. DONE AND ENTERED this 4th day of April, 2008, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of April, 2008.
The Issue Whether the Department of Children and Family Services (Department) lawfully denied Petitioner's application to become an adoptive parent.
Findings Of Fact The Department, in accordance with Chapters 39 and 63, Florida Statutes, is the agency which is tasked with determining the eligibility of persons who apply to become adoptive parents in the state. Petitioner is a 69 year old woman who has given birth to nine children. She is the great-grandmother of the children at issue here. In late 2000 she attempted to become the foster parent of the children but the Department disapproved her application. Subsequently, she embarked on an effort to adopt the children. The children came into the custody of the Department sometime prior to July 25, 2000, because of allegations that the mother, Elizabeth Watson, abused the children, or permitted the abuse of the children. Subsequently, the children were placed with the children's grandmother. The Department eventually removed them from the care of their grandmother because of allegations of abuse. At the time of the hearing the children were in the custody of foster parents who were unrelated to Petitioner. The Children's Home Society (CHS), pursuant to a contract with the Department, investigates applicants who wish to be adoptive parents. CHS, at the request of the Department, investigated Petitioner. Gary Tomblin, Ph.D., is the program supervisor for CHS and he conducted a thorough investigation into the facts and circumstances surrounding the application of Petitioner. Petitioner told Dr. Tomblin on two occasions that she didn't think that the Department should have taken the children from her granddaughter, and subsequently from her daughter. She also told this on one occasion to Waysharda Mosley, an employee of the Department who is charged with the responsibility for children in foster homes, and A. W. I, A. W. II, and A. W. III, in particular. Petitioner's belief that the treatment of the children by her granddaughter and daughter was permissible, in the face of substantial evidence to the contrary, indicates that she is not as concerned as she should be for the physical well-being of her great-granddaughters. Dr. Tomblin made visits to Petitioner on July 20, 25, and 26, 2001, and August 3, 13, and 21, 2001. The purpose of these visits was to determine if Petitioner would be able to meet the physical, emotional, social, and financial needs of the children. Initially, Petitioner cooperated with Dr. Tomblin but by August 21, 2001, she became uncooperative. Petitioner objected to providing Dr. Tomblin with some of the background information he requested. She refused to provide him with required medical information and refused to provide a release so that her medical records could be obtained. She refused to provide information with regard to her former husbands. She did not identify a back-up caregiver who could take care of the children in the event Petitioner became ill or died. Efforts by Dr. Tomblin to identify a back-up caregiver failed. Although Petitioner provided the names of two potential caregivers, a daughter and granddaughter, who are not the grandmother or mother of the children, the evidence provided with regard to their enthusiasm for these duties was unpersuasive. Petitioner has a daughter, Carrie, who is currently living with her. Carrie was born in 1959 and is profoundly mentally retarded. Carrie has a history of emotional outbursts and has on occasion been physically violent. Carrie is a large woman who could be dangerous to herself and others should she have a tantrum. That this is true was evidenced during the hearing when a recess had to be called because of an explosive outburst by Carrie, who was observing the proceedings. So long as Carrie is living with Petitioner she would present a danger to the children. Attempts by the Department to move Carrie to a home where she could receive professional care may eventually remove this disqualifying fact. Petitioner lives in a three-bedroom, one bath, 1008 square-foot apartment in a large apartment complex. This facility is too small for two grown women and three young children. The furnishings are inadequate. The neighborhood was observed to have a population of unsupervised children who could be a danger to A. W. I, A. W. II, and A. W. III.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is
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 What final action should be taken on Petitioner's application to renew its full-year regular license to operate as a Florida child-placing agency.
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made: Petitioner Petitioner is now, and has been at all times material to the instant case, a child-placing agency doing business in Palm Beach County, Florida. Cheryl Eisen, Esquire, is now, and has been at all times material to the instant case, Petitioner's executive director. She and her secretary are currently Petitioner's only employees. Ms. Eisen is now, and has been since 1974, a member in good standing of The Florida Bar. She specializes in adoption law. Her law firm provides Petitioner with legal services. Ms. Eisen is not paid for any of the work she performs in her capacity as Petitioner's executive director. (Her law firm, however, is paid for the legal services it provides.) Ms. Eisen was first employed by Petitioner in February of 1996. Before she started working for Petitioner, Ms. Eisen served as outside legal counsel for another Florida-based child- placing agency, Adoption Connection. Her services were terminated by Adoption Connection in March of 1995, when she became embroiled in a dispute with the executive director and board of directors of the agency concerning whether to report to the Department's predecessor, the Department of Health and Rehabilitative Services (HRS), that administrative action had been initiated against a "sister agency" of Adoption Connection's located in Massachusetts. Ms. Eisen advised that HRS be notified of the situation in Massachusetts, but Adoption Connection's executive director and board of directors refused to follow Ms. Eisen's advice. When she insisted that such notification be given, she was terminated. Adoption Connection was closed a few months later. Ms. Eisen, along with Sally Oken, a licensed clinical social worker who had also worked for, and been terminated by, Adoption Connection, subsequently formed Petitioner. Petitioner's Licensure History Petitioner was first licensed as a child-placing agency on April 15, 1996. The license it received was a provisional license. This provisional license was converted to a regular license, expiring April 30, 1997. On April 30, 1997, Petitioner received a second provisional license, expiring June 13, 1997. This second provisional license, on June 13, 1997, was replaced by a regular license, expiring April 30, 1998. Petitioner first received a full-year regular license in 1998. The license had an effective date of April 30, 1998. The Certificate of License that Petitioner received from the Department indicated that Petitioner "ha[d] complied with the minimum standards set by the Department for Child-Placing Agencies." The Certificate of License was accompanied by the following cover letter from the Department, dated May 1, 1998: Enclosed is a copy of the licensing report and the Certificate of License for Adoption Advisory Associates, Inc., effective April 30, 1998, expiring April 30, 1999. The license is to be displayed in a prominent place at the agency. Please pay particular attention to items indicated in bold in the report. The foster home license needs to be processed as soon as possible. I will work with the Department, although you need to follow up and notify me when the license has been issued. When your audit is complete, please notify me and send the packet to me (no later than June 30, 1998). . . . The "licensing report" which was sent to Petitioner along with the Certificate of License provided, in pertinent part, as follows: RESULTS: . . . Program Policies and Procedures: A revised contract and fee schedule was formulated and submitted to the Department. AAA has complied with the recommendation by the Department to inform all clients of their right to report a complaint to the Department. The Agency has incorporated this necessary information in their packets to clients. Policies and procedures and necessary legal documentation appear to comply with Florida Code 65C-15. Documentation of counseling services to birth parents and support services was also found in files. Staff: . . . Screening documentation has been kept up to date. Cheryl Eisen will be due for 5-year re-screening in July 1998, which would include FDLE and local law checks. . . . Audit and budget: The agency's fiscal year ends April 30, and the audit and budget will be prepared and submitted to the Department. The auditor's report will be reviewed by the Department, and past recommendations by the auditor are expected to have been put into place. The audit needs to be completed and submitted by June 30, 1998. Complaints/concerns: During the past year, the Department received a few phone calls from prospective and waiting list adoptive couples, and a birth parent relative who expressed concerns or had questions on certain agency procedures. These concerns were discussed and resolved by the Department and/or agency staff. It is recommended that a system of monthly contacts with adoptive couples who are waiting for a placement be established, and that services and a system of communication with adoptive couples be expanded. . . . RECOMMENDATION: Adoption Advisory Associates appears to comply with licensing standards outlined in Florida Administrative Code 65C- 15. Items indicated in bold in this report need to be addressed accordingly. It is the recommendation of the Department to issue a Child-Placing license to Adoption Advisory Associates, effective April 30, 1998, expiring April 30, 1999. The Submittal of Petitioner's March 1999 Application for Licensure Renewal and the Department's Response By letter dated March 2, 1999, the Department, through Karen Willson, a facilities licensing counselor with the Department, reminded Petitioner, through Ms. Eisen, that its current license would expire on April 30, 1999. The letter read as follows: As you are aware, all child-placing agencies need to be relicensed on a yearly basis. Your present license expires on April 30, 1999. Enclosed are Application For License and Assurance of Compliance forms, which need to be signed and returned to me. I am also sending a copy of Florida Administrative Code, Chapter 65C-15, Licensing Standards, and a licensing checklist to use as a guide. I will be reviewing all areas of these licensing standards at the time of the monitoring. Please compile a list of all adoptive couples, on the waiting list, and couples who have had adoptive placements during the last year, including addresses and phone numbers. As part of the licensing process, I may be contacting these individuals. Please send this list to me prior to the scheduled on- site visit. I would like to meet with you on March 23, 1999, at 10:00 a.m. Please call met at . . . to confirm this date and time. In addition, please have the following available for review: Monthly contact sheets (adoptive couples waiting) Organizational chart with employees listed Updates of changes in policies and procedures Fee schedule for adoptive parents Statistics (no. of birth mothers, adoptive parents waiting, placements, finalized and ongoing) List of board members; board meeting minutes Annual Audit** Budget Staff training logs and evaluations Files: personnel (including screening information), birth mothers, adoptive parents, foster homes. If you have any questions concerning the licensing process, please feel free to call me. ** AAA is presently out-of-compliance with Florida Administrative Code 65C-15, as the Department has not received an annual audit. The last audit received was dated June 3, 1997. This will require a corrective action if a current audit is not received by March 23, 1999. On March 23, 1999, Petitioner submitted to Ms. Willson its application seeking the renewal of its full-year regular child-placing agency license. On April 14, 1999, Ms. Eisen, by facsimile transmission, provided Ms. Willson with the statistical information Ms. Willson had requested in her March 2, 1999, letter. By letter dated April 28, 1999, which read as follows, Ms. Willson informed Ms. Eisen that the Department was granting Petitioner a "three-month provisional license: Enclosed is a provisional Certificate of License for Adoption Advisory Associates, Inc., expiring July 31, 1999. As you are aware, the Department is currently investigating recent complaints reported to the Department regarding the agency. In order to complete the investigation, a three- month provisional license is granted at this time. 1/ You will be notified as to the results of the investigation, when completed, and the status of your license at that time. The enclosed "provisional Certificate of License" stated as follows: Know All Men by These Presents: That the Department of Children and Families being satisfied that the facility located at 2999 Camino Gardens Blvd., Suite 205 in the city of Boca Raton, County of Palm Beach, State of Florida, has complied with the minimum standards set by the Department for Child- Placing Agencies and the Department approves the application of said Adoption Advisory Associates, Inc. for a license to operate and directs the issuance of this certificate on the 30 day of April, 1999. The license shall continue in force for one year from the above date unless renewed, withdrawn, or revoked for cause. This is a provisional license which will expire July 31, 1999. The certificate was signed by the District Administrator. By letter dated May 14, 1999, Petitioner informed the Department of Petitioner's "objections regarding being given only ninety days' provisional status." As noted above, on July 15, 1999, the Department issued its Notice of Intent and, by letter dated July 26, 1999, Petitioner requested an administrative hearing on the matter. By letter dated July 29, 1999, to the District Administrator, Ms. Eisen set forth Petitioner's position regarding the "legal situation" with respect to its licensure status: We applied for renewal of our license on March 24, 1999. On April 30, 1999, the Department apparently purported to neither approve nor to deny our license renewal application, but to give us a "provisional" license. In pertinent part, Florida Statutes section 409.175 (1998) provides the circumstances in which a provisional license may be issued: "(6)(a) The department may issue a provisional license to an applicant who is unable to conform to the licensing requirements at the time of the study . . . . The issuance of a provisional license shall be contingent upon the submission to the department of an acceptable written plan to overcome the deficiency by the expiration date of the provisional license. A provisional license may be issued when the applicant fails to meet licensing requirements . . . and the agency has submitted a corrective action plan which is approved by the department. [A] provisional license may not be issued unless the applicant is in compliance with the requirements in this section for screening of personnel. A provisional license . . . may be suspended if periodic inspection by the department indicates that insufficient progress has been made toward compliance with the requirements." All three subsections of section 409.175(6) anticipate that the Department has informed an agency of deficiencies that need to be corrected at the time the provisional license is granted. As this agency received no such notice, we were not in fact granted a provisional license on April 30, 1999, but an unconditional approval of our license application. In the alternative, Florida Statutes section 120.60(1) 1998 requires that: "Every application for a license shall be approved or denied within 90 days after receipt of a completed application. . . . The agency must approve any application for a license . . . if the agency has not approved or denied the application within the time periods prescribed by this subsection." Because the District did not approve or deny by June 22, 1999, the license we applied for on March 24, 1999, this so-called "deemer" provision in the Florida Administrative Procedures Act has entitled this agency, since June 22, 1999, to demand issuance of an unconditional license. It is our hope that, in consideration of the foregoing, as well on the basis of the material we have previously provided directly to you and Judge Kearny, you will forthwith issue the license which this agency presently enjoys by operation of law. The District Administrator responded to Ms. Eisen by sending her a letter, dated July 30, 1999, which read as follows: The Department of Children and Families has reviewed your correspondence of July 29, 1999 regarding the licensure of Adoption Advisory Associates, Inc. (AAA) A determination has been made that AAA will receive a restricted Certificate of License in order to continue working with existing clients. The license will be subject to immediate revocation in the event that a final order is issued affirming the Department's decision not to renew AAA's license. A list of existing clients must be provided to the Department within five days of receipt of this letter. Failure to do so will result in the revocation of the restricted license. The Restricted Certificate is attached. The Department has forwarded your July 26, 1999 request for an administrative hearing to the agency clerk for processing. Thank you for your prompt consideration. The "attached" "Restricted Certificate" indicated that it would "continue in force for one year from [July 31, 1999] unless renewed, withdrawn, or revoked," and further indicated that it would be "subject to immediate revocation in the event that a final order is issued affirming the Department's decision to not renew Adoption Advisory Associates' license." Petitioner still operates under this "Restricted Certificate," which provides that Petitioner shall accept no new clients. "Agency Identified" Domestic Adoption Services Contract At all times material to the instant case, Petitioner presented to prospective adoptive parents desiring to receive domestic adoption services from Petitioner a form contract (Domestic Contract) for their signature. Section I of the Domestic Contract addressed the subject of the "agency's undertaking, services, and exclusions." It provided as follows: Agency's Undertaking. The Prospective Adoptive Parents request, and the Agency is willing to provide, domestic adoption services with the goal of providing to the Prospective Adoptive Parents an offer of placement of an adoptable newborn child in the Prospective Adoptive Parents home at the earliest possible moment. The Agency agrees to make a diligent effort to place such a child with the Prospective Adoptive Parents in accordance with the social service policies and procedures of the Agency, as established and from time to time amended by the Agency's Board of Directors, and in accordance with federal and Florida statutory and administrative law. Agency Services. The Agency's domestic adoption services include, but are not limited to, birth parent outreach in the form of professional networking and widespread advertising; provision of prebirth medical and social services to birth parents, including counseling about adoption issues and alternatives; home studies and pre- and post-adoption counseling for prospective adoptive parents; presentation of educational and supportive forums and seminars for clients, professionals, and the public; birth parent housing; and legal services including termination of parental rights and finalization of Florida adoptions. Non-resident Prospective Adoptive Parents. If the Prospective Adoptive Parents are not Florida residents, compliance with the law of their home state as regards payment of Agency's fees and costs, placement, post-placement and finalization of adoption is their sole responsibility and must be arranged for by obtaining advice and assistance of a licensed and experienced attorney in that state prior to the execution of this contract, providing the following information: Attorney Telephone Street City State Zip The Prospective Adoptive Parents understand that disapproval by their home state of any aspect of a placement pursuant to this contract may disrupt the placement. The Prospective Adoptive Parents indemnify and hold the Agency harmless for such result, remaining responsible for the "At Placement" fees and costs due the Agency under this contract to the extent not otherwise recouped by the Agency by making an alternate placement of any child identified to this contract. Further, such mistake of law shall not be a basis for recission of this contract or refunding of "At Contract" fees and costs paid hereunder. (See paragraphs II, B and C, below for information regarding "At Contract" and "At Placement" fees.) Section II of the Domestic Contract addressed the subject of the "fees and costs." It provided as follows: Basis for Determining Fees and Costs. Pursuant to Florida Administrative Code section 10M-24.019(4)(b), 2/ the Agency's adoption fees have been established based on the reasonable costs of the following services for the total adoption program: (1) medical services for the child and the birth mother; (2) legal services; (3) counseling services; (4) home study services; (5) living expenses for the birth mother; (6) foster care services; (7) pre- and post-placement social services; (8) contracted services, if applicable; (9) other necessary services; and (10) agency facilities and administrative costs. Summary of Estimated Fees & Expenses and Refund Policy. The Agency's Summary of Fees & Expenses ("Fee Summary") and its Refund Policy are attached and incorporated in this agreement by this reference. The Prospective Adoptive Parents acknowledge that those documents have been thoroughly reviewed by them with Agency staff and are completely understood and accepted. Timing and Manner of Payment of Fees. A Home Study Service Fee will have been paid to the Agency prior to execution of this agreement. The "At Contract" Fees shown on the Fee Summary are due upon execution of this agreement, after the Agency's approval of the Prospective Adoptive Parents' home study. The "At Placement" Fees shown on the Fee Summary, including all contingent fees as estimated by the Agency, are due in the form of a cashier's check after birth immediately prior to physical placement of the child with the Prospective Adoptive Parents. The "Fee Summary" referenced in subsection II.B. of the Domestic Contract provided as follows: SUMMARY OF ESTIMATED FEES & EXPENSES AGENCY ADMINISTRATIVE FEE (out-of-Florida birth or placement $500 additional*) At Contract $5,750.00 At Placement $5,750.00 BIRTH PARENT COUNSELING FEE At Contract $1,250.00 At Placement $1,250.00 BIRTH MOTHER SUPPORT FEE/EXPENSES At Contract $2,000.00 At Placement [see note]** BIRTH MOTHER MEDICAL FEE/EXPENSES At Contract $2,000.00 At Placement [see note]*** POST PLACEMENT SERVICES FEE (out-of- Florida placement $500 less) At Placement $1,000.00 LEGAL FEE**** At Contract $500.00 At Placement $1,000.00 [Total Due] At Contract $11,500.00 * An out-of-Florida birth or placement may also involve additional costs for out-of- state attorneys, agencies, and/or social workers, which costs will not be within the agency's control; further, adoptive parents' travel expenses are additional and will include hotel costs while Interstate Compact processing is pending. ** A $2,000 minimum Birth Mothers' Support Fee is required regardless of whether and to what extent support of the Birth Mother is needed. This permits the agency to fund the provision of living expenses to birth mothers who ultimately choose not to place or whose babies are ultimately determined to be legally or medically unadoptable. A Birth Mother's actual support expenses only rarely exceed $3,500 additional to the $2,000 Support Fee paid "At Contract." *** A $2,000 minimum Birth Mothers' Medical Fee is required regardless of whether and to what extent the birth may be covered by insurance or Medicaid. This permits the agency to fund the provision of medical services to birth mothers who ultimately choose not to place or whose babies are ultimately determined to be legally or medically unadoptable. In the event of a "non-covered" birth, the adoptive parents will be responsible only for the birth mother's actual medical expenses, which can be expected to be between $3,000.00 and $8,000.00, after credit for the $2,000 Medical Fee paid "At Contract," depending on the circumstances of pregnancy and birth (with no contribution to our medical service fund required). The child's medical expenses are additional, but under the law of many states, including Florida, these are reimbursable by the adoptive parents' health insurance carrier. **** The $1,500.00 legal fee is exclusive of required court and administrative fees (filing fee for petition of adoption, certified copies of court orders, obtaining original and amended birth certificates-- totaling approximately $250), and does not include the expense of newspaper publication of notice to the birth father, if such is legally necessary ($275 - $300), or any unanticipated fees or expenses. NOTE: Charges for required home study services are payable at the time of service, prior to and apart from the "At Contract" and "At Placement" fees shown above. Charges are as follows: full home study-- $1,500; update of home study more than a year old-- $750; review and confirmation of current home study prepared outside our agency-- $350. The "Refund Policy" referenced in subsection II.B. of the Domestic Contract provided as follows: REFUND POLICY In some few cases, prospective adoptive parents accepted into Adoption Advisory Associates' program decide to continue with, or seek out, other placement sources after working with us. We fully support whatever decisions you make in this regard, and work equally diligently for those working only for us and those working with other agencies and/or attorneys as well. We have developed the following refund schedule to be effective in the event you accept placement of a child from another source (or receive confirmation or your own pregnancy): If you notify us in writing of your acceptance of placement of a child from another source (or of your own pregnancy), we will refund your At Contract fees and expenses within thirty days of receipt of such notification as follows: Notification within 0-30 days of date of acceptance into AAA's program: $5,000.00 31-60 days $4,000.00 61-90 days $3,000.00 91-180 days $1,500.00 after 180 days No Refund For purposes of this Refund Policy, "placement" is defined as actually receiving a child in your home for the purpose of adoption. "Date of your acceptance into AAA's program" is defined as the date we sign our Domestic Adoption Services Contract with you. If, in the sole discretion of the Executive Directors, circumstances other than receiving placement of a child from another source, or confirmation of pregnancy, warrant any refund of At Contract fees and expenses, such a refund would be based on the foregoing schedule. In no event shall any mistake of law by Prospective Adoptive Parents residing outside the state of Florida as to the enforceability or implementation of this contract under the law of their home state constitute grounds for any refund of fees or costs paid by them, it being their sole obligation to obtain counsel in their state before entering into our Domestic Adoption Services Contract. Section III of the Domestic Contract addressed the subject of "conditions of matching and adoptive placement." It provided as follows: Birth Parent Selection of Prospective Adoptive Parents: Contact Protocols. The Agency encourages birth parents to participate in the process of choosing prospective adoptive parents for their babies from those pre-approved and recommended by the Agency, and such choices are given paramount importance. Nevertheless, the Agency has sole and exclusive control of the sequence of parent(s) eligible to adopt and the matching process, and will make final decisions regarding matching, meeting and placement of children for adoption. From the time of matching to the time of placement for adoption, the Prospective Adoptive Parents will abide by any and all protocols the Agency in its sole discretion shall establish, either in general or ad hoc, as relates to contact with the Agency's birth parent clients and their babies, whether in the Agency, in the hospital, or elsewhere. Placement Formalities. After the birth of the child to be placed with the Prospective Adoptive Parents, but before physical placement, the Prospective Adoptive Parents will, as conditions precedent to placement, (1) execute the Agency's placement papers and (2) pay to the Agency by cashier's check the balance of the total estimated fees and costs of the of the adoption as determined by the Agency at that time. Any additional costs (typically medical expenses) associated with the placement will be paid by the Prospective Adoptive Parents upon receipt of the Agency's bill, but in no event later than the execution of the Agency's consent to finalization of the adoption of the child. Legal and Physical Custody until Finalization; Duty of Support. As provided by law, the Agency retains legal custody of the child until finalization of adoption occurs and thus has the authority to make any and all decisions it deems to be in the child's best interests. Nevertheless, the Prospective Adoptive Parents, to be the physical custodians of the child, agree to provide for one hundred percent of the child's medical and other care nunc pro tunc (i.e. retroactively) from birth until finalization of adoption, and indemnify and hold the Agency harmless for any claims by third parties for providing goods or services to the child. Removal of Child. The Agency may remove the child from the home of the Prospective Adoptive Parents, prior to finalization, if the Prospective Adoptive Parents accept another child for the purpose of adoption either through another Agency or through an attorney. The agency will remove a child from the home of the Prospective Adoptive Parents, prior to finalization, if in its professional judgment the placement proves not to be in the best interests of the child. Section IV of the Domestic Contract addressed the subject of "placement, post-placement and finalization." It provided as follows: Timing of Placement; Foster Care. The Agency may place a child with the Prospective Adoptive Parents, and the Prospective Adoptive Parents agree to be available for the placement of the child, as soon as 24 hours following the birth of the child if the Agency determines that placement is clinically appropriate. In the event the Prospective Adoptive Parents or the child are not ready or available for placement upon the child's discharge from the hospital so that foster care is required, the Agency will place the child in foster care until appropriate arrangements are completed for placement with the Prospective Adoptive Parents. In this event, the Prospective Adoptive Parents will be responsible upon placement for such foster care expenses at the rate of $75.00 per day. Out of State Birth; ICPC. In the case of a birth in a state other than the Prospective Adoptive Parents' home state, the Prospective Adoptive Parents (or one of them) must travel to the foreign state, at their expense, to take physical custody of the child. They must remain in that state until all the legal requirements imposed by the Interstate Compact on the Placement of Children ("ICPC") have been complied with in both the "sending" and "receiving" state. The duration of the stay in the foreign state is subject to many factors beyond the control of Adoption Advisory Associates, but will be estimated at the time a particular match is offered. A typical ICPC waiting period is five (5) to ten (10) days. Post-Placement Supervision. If a child is placed with Prospective Adoptive Parents residing in Florida, the Agency will conduct a scheduled series of post-placement contacts with the family. These contacts are for the purpose of providing support and collecting data for the Agency's final recommendation to the court regarding finalization of the adoption. If placement is outside Florida, a local social service provider will be arranged and paid for by the Prospective Adoptive Parents, subject to the approval of the Agency, to perform this post-placement supervision. Progress Reports and Photographs. The Prospective Adoptive Parents agree to submit to the Agency monthly written reports regarding the child's progress, along with color photographs of the child, each month until finalization of the adoption, and thereafter each year around the time of the child's birthday. It is understood that these reports and pictures will be available to the birth parent(s) to the child. Post-Placement Medical Care; Emergencies. In case of an emergency involving the adoptive child, the Prospective Adoptive Parents agree to administer to the child's needs first, seeking any medical care which may be needed, then to contact the Agency as soon as possible to inform the Agency as to the nature of the emergency and the child's status. The expense of all post-placement medical care for the child is the responsibility of the Prospective Adoptive Parents, who are required to have comprehensive medical insurance coverage in place at the time of placement. Travel Before Finalization. Until the finalization of adoption, the Prospective Adoptive Parents must inform and obtain the approval of the Agency of any travel plans which would take the child out of the state in which the child was placed by the Agency for more than 7 days. Finalization of Adoption. The Prospective Adoptive Parents agree to legally finalize the adoption of the child in the state where the Prospective Adoptive Parents reside as soon as permitted under applicable state law. For Florida residents, legal fees paid to the Agency include the expense of finalization of adoption in Palm Beach County, Florida, by the Agency's legal counsel. Non-Florida residents are responsible for obtaining and compensating counsel in their home state to finalize the adoption. Non-residents' home states may require local social worker's reports, filing fees, and other expenses which are the sole responsibility of the Prospective Adoptive Parents. Request by Prospective Adoptive Parents for Removal of Child. The Agency will act as expeditiously and promptly as possible to make alternate arrangements for placement in the event that the Prospective Adoptive Parents request that the child be removed prior to finalization of the adoption for any reason. Non-Placement. In the event the Prospective Adoptive Parents are matched with a birth mother but no placement ultimately occurs, the Agency shall continue its best efforts, as set forth in paragraph I.A., above, to cause a placement to occur within the two year term of this agreement, with no additional fee required. Any "At-Placement" fees, except for medical expenses actually incurred by the Agency, will be refunded. Section V of the Domestic Contract addressed the subject of "assumption of risks and release of agency liability." It provided, in pertinent part, as follows: In adoption placement situations there are risks which may or may not be known to the Prospective Adoptive Parents, the Agency, its staff, or others involved. Such risks usually involve legal or medical issues and may be either significant or of little concern. Notwithstanding the best efforts of the Agency and its staff and consultants, some risks may not be knowable or known. Acknowledging this, the Prospective Adoptive Parents hold the Agency harmless and assume the risks of adoption as follows: Change of Prospective Adoptive Parents' State of Resident. . . . Social and Medical History of Child. The Agency will provide the Prospective Adoptive Parents prior to "matching" with all available social and medical history of the birth mother, birth father and child to the extent deemed relevant by Agency staff. Any changes in information will be reported to the Prospective Adoptive Parents as they become known. At the earliest possible moment, but in any event prior to finalization of the adoption, the Prospective Adoptive Parents will be provided with written reports of this information. To a large extent, the information is obtainable only from the birth parents and is thus subject to unreliability. The Prospective Adoptive Parent(s) agree to hold Adoption Advisory Associates free from all liabilities arising from the provision of incorrect information. Gender and Other Characteristics of Child. The gender of a prospective adoptive child cannot always be accurately predicted at the time of matching, nor can the Agency predict an adoptive child's future personality, medical problems, learning disabilities, appearances or inherited characteristics. Non-availability of Identified ("Matched") Child for Adoption. While the Agency agrees to make every reasonable effort to see that a "matched" child is available for placement and adoption immediately after birth, the Agency is unable to guarantee such availability given the nature, extent, and variability of the legal and medical risks involved. The Prospective Adoptive Parents assume all risks, both known and unknown, that may at any time impair, delay, or preclude readiness or availability of a "matched" child for placement after birth. (It is specifically understood that Florida law precludes the possibility of the Agency entering into a placement contract with the birth parents prior to the birth of a child to assure placement.) Rights of Birth Father. The birth father of a child, whoever and wherever he is, has a right to due process of law with regard to all legal events concerning the child and he has a right to petition the court and make a claim, if he so desires, for the custody of the child unless he has surrendered the child for adoption, has executed a denial of paternity, or his parental rights have been terminated by a court of competent jurisdiction. The Agency's attorney will address birth fathers' rights as required by law. These efforts are dependent upon the Agency's receiving reliable information from birth mothers as to the identity and whereabouts of birth fathers. (The Prospective Adoptive Parents will be advised prior to matching if a birth mother states that she does not know the identity and/or location of the birth father.) Accordingly, the Prospective Adoptive Parents will hold the Agency harmless for any errors caused by misinformation provided by the birth mother to the Agency. Disruption of Placement. It is possible that a birth mother or birth father who has surrendered a child for adoption may make an attempt to revoke his or her surrender before finalization of the adoption. Should the Agency be unable, despite its best efforts, to resolve such a situation without resort to judicial proceedings, it may be the Agency's decision to return custody of the child to its birth mother and/or birth father unless, in its sole discretion, the Agency were to determine that some other plan, including remaining in the adoptive home, was in the best interests of the child. Should this be the case, the Prospective Adoptive Parents will have the option of undertaking the expense of any resulting judicial proceedings in an effort to maintain the placement, or may choose to relinquish the placement with no further rights or responsibilities. In any event, in the Agency's sole discretion, the child may be removed from the adoptive home and placed in Agency foster care until the child's final legal status is determined. Non-acceptance or Relinquishment of Placement. The Prospective Adoptive parents may, at any time, decline to accept placement of a particular child for adoption, or, having accepted placement, decline to continue such placement. Nevertheless, if after birth the Agency, within its sole discretion, determines the said child to be adoptable, the Prospective Adoptive Parents will be responsible for all costs relative to foster placement of the child and for all services to the extent other payors are not legally responsible, unless and until (a) an adoption with other parents is completed or (b) legal responsibility is accepted by other persons or agencies. Provided, however, that the Prospective Adoptive Parents will not be responsible for such costs if the Agency, in its sole discretion determines that said child is not adoptable for medical, social, or legal reasons. Agency Legal Error. . . . Risk of Error of Other Professionals. . . . Private Agreements With Birth Parent(s) Unenforceable. No promises or representations made to the Prospective Adoptive Parents by a birth parent are enforceable by the Agency or a court. Section VI of the Domestic Contract contained the following "miscellaneous" provisions, among others: Accurate Information from Prospective Adoptive Parents. The Prospective Adoptive Parents have completed Agency application materials and submitted a biographical photo album and certain required documentation, all of which are incorporated herein by this reference, and understand that any inaccurate information provided constitutes grounds for termination of this agreement by the Agency and forfeiture of any fees paid to the Agency. . . . D. Prospective Adoptive Parents as Agents for One Another. The Prospective Adoptive Parents are the agents for one another for the purpose of the Agency's reliance upon any communication, decisions, or agreements between the Agency and the Prospective Adoptive Parents. . . . Termination. This agreement shall terminate two (2) years from the date hereof or upon finalization of the adoption of a child placed by the Agency with the Prospective Adoptive Parents for that purpose, whichever occurs earlier. Provided, however, that the obligations of the Prospective Adoptive Parents to provide the Agency post-adoption pictures and written updates on the child's progress shall survive until the child is eighteen (18) years of age. The Agency, in its discretion, reasonably applied, may terminate its relationship with the Prospective Adoptive Parents, if it is determined by the Agency, after consultation with the Prospective Adoptive Parents, that the Agency's program and the Prospective Adoptive Parents' goals, expectations, and/or intentions regarding adoption are incompatible. Limitation of Actions. No claim in contract or tort arising from the obligations or subject matter of this agreement shall be maintained unless brought within one (1) year of the termination of this agreement. Entire Agreement/Severability. This agreement, including the Agency's current Summary of Estimate Fees & Expenses and Refund Policy, attached hereto, sets forth the entire, sole, and exclusive understanding of the parties. No promises or representations previously or contemporaneously made are enforceable. Any changes in this agreement must be in writing and signed by the party to be charged with any new or modified undertaking. If any portion or portions of this Agreement are found by a court of competent jurisdiction to be unenforceable, the remaining Agreement shall remain in full force and effect, except as provided elsewhere herein. The Domestic Contract (including the fee schedule included therein) was reviewed by the Department before it issued Petitioner a full-year regular license in 1998. At that time, the Department did not find the contract to be objectionable. Licensed Foster Homes Available for Petitioner's Use (Alleged Violations of Rules 65C-15.002(7) and 65C-15.025, Florida Administrative Code) In April of 1998, Petitioner submitted to the Department the materials necessary for Edward and Irene Petow to obtain a license to operate a foster home for Petitioner's use. 3/ The Department issued the Petows such a foster home license on May 10, 1998. The Petows' foster home license expired on April 30, 1999, and was not renewed. During the period that their license was in effect, the Petows were available to provide foster care services for children needing such services who had been placed in Petitioner's care. Jewish Adoption and Foster Care Options (JAFCO), which has been at all times material to the instant case a Florida- licensed foster care provider, 4/ is presently willing and available to provide foster care services to these children (pursuant to an agreement it has with Petitioner), as it has been since Petitioner's inception. 5/ Audit of Petitioner's Financial Records (Alleged Violation of Rule 65C-15.010(3), Florida Administrative Code) Petitioner has only had its financial records audited twice during the time it has been licensed. The first audit was completed in or around June of 1997, at which time a report of the audit was prepared and submitted to the Department. This audit was for the fiscal year ending April 30, 1997. (Petitioner's fiscal year runs from May 1 to April 30.) The accountant who conducted the audit, Aubrey Bourgeois, CPA, made the following "proposal" to Petitioner based upon his findings: Through the course of the audit process it was evident that the association administrator, Ms. Cheryl Eisen, had spent an enormous amount of time maintaining the financial records of the organization. We would like to propose that the accounting functions, including the bank reconcilliations and financial statement preparation be handled by our office on a monthly basis, therefore freeing Ms. Eisen for the day-to-day business and administrative duties. This would also allow us to prepare the accounting information according to generally accepted accounting principles. This would lessen the time needed to verify information during the year end audit. The only accounting functions that Ms. Eisen would need to continue to perform would be the cash receipts and cash disbursements. . . . In the licensing report, dated June 12, 1997, which was signed by the District Administrator and his staff and contained the recommendation that Petitioner "receive a regular child- placing license, effective June 14, 1997, expiring April 30, 1998," the following statement regarding Mr. Bourgeois' "proposal" was made: After reviewing all documentation, the department continues to have concerns regarding internal controls and the organizational structure of the governing body. The following changes are strongly recommended by the department: 1. The department agrees with the proposal submitted by the auditor, that the accounting functions, including bank reconciliations and financial statement preparation be handled by the accountant's office on a monthly basis. The auditor's report indicated several possible weakness in the internal control structure of the agency, under the present system. . . . At no time, however, did the Department ever order Petitioner to make this "change" proposed by Mr. Bourgeois. Petitioner did not follow the suggestion made by Mr. Bourgeois (and endorsed by the Department) because, in its opinion, it would have been too expensive for it to have done so. (Many small businesses, like Petitioner, do not have an accountant perform "accounting functions" on a monthly basis because of cost considerations.) Petitioner's inaction did not prevent it from obtaining a full-year regular license in 1998. As noted above, the 1998 "licensing report" prepared by Department staff, a copy of which Petitioner received along with its licensure certificate, indicated that the audit of Petitioner's financial records "need[ed] to be completed and submitted by June 30, 1998." The June 30, 1998, deadline passed without the Department having received any audit report from Petitioner. By letter dated October 14, 1998, Ms. Willson "remind[ed]" Ms. Eisen that the report of Petitioner's May 1, 1997-April 30, 1998, fiscal year audit, which Petitioner had been directed to file by June 30, 1998, had not yet been received by the Department and that it was "imperative" that the Department receive the report "as soon as possible" inasmuch as "[a]n annual audit is a requirement of the licensing process." By March 2, 1999, despite Ms. Willson's "remind[er]," the Department had still not received an audit report from Petitioner for the May 1, 1997-April 30, 1998, fiscal year. Accordingly, as indicated above, in her letter to Petitioner of that date advising Petitioner of relicensing requirements, Ms. Willson warned Petitioner that if it did not submit, on or before March 23, 1999, an audit report for the previous fiscal year, "corrective action" would be taken. On March 23, 1999, Petitioner provided the Department with an audit report for the fiscal year ending April 30, 1998. In April of 1999, Ms. Eisen was hospitalized with a broken arm and leg as a result of an accident. She was in the hospital and in in-patient rehabilitation for more than a month. During this period of time she was unable to gather the records Petitioner's accountant, Mr. Bourgeois, needed to complete the audit for the fiscal year ending April 30, 1999. On or about June 30, 1999, Petitioner delivered to Mr. Bourgeois the records necessary for him to complete an audit for the fiscal year ending April 30, 1999. By letter dated July 15, 1999, Petitioner informed the Department that the audit for the fiscal year ending April 30, 1999, would be completed on or about August 15, 1999. When Ms. Eisen received the Department's July 15, 1999, Notice of Intent, she instructed Mr. Bourgeois to discontinue work on the audit for the fiscal year ending April 30, 1999, because, as she later explained to the Department, she wanted "to avoid the expense of a report [Petitioner was] no longer obligated to provide to the Department." Upon subsequently learning that the Department had granted Petitioner a one-year Restricted Certificate, effective July 31, 1999, Ms. Eisen requested Mr. Bourgeois to resume his work on the audit. By letter dated August 10, 1999, Ms. Eisen advised Ms. Willson that the audit would "be delayed until September." As of the time of the final hearing in the instant case, the audit of Petitioner's financial records for the fiscal year ending April 30, 1999, had not yet been completed. Verification of Screening Requirements (Alleged Violation of Rule 65C-15.016(2)(b), Florida Administrative Code) Before working as outside legal counsel for Adoption Connection, Ms. Eisen (who is the only remaining non-clerical employee of Petitioner's 6/ ) was screened by Adoption Connection and, on or about September 2, 1993, she received "clearance" from Adoption Connection (based upon Adoption Connection's determination that she met screening requirements). Ms. Oken and Ms. Petow also had been screened by, and received "clearance" from, Adoption Connection. Ms. Oken was fired by Adoption Connection in March of 1995, at the same time Ms. Eisen's services were terminated by the agency. Ms. Petow continued working for Adoption Connection until some time prior to February 2, 1996 (the date she was hired by Petitioner). When Petitioner was seeking its initial license in 1996, Ms. Willson's predecessor advised Ms. Eisen that the "clearance" she, Ms. Oken, and Ms. Petow had received from Adoption Connection could be "transferred" and that she and her colleagues did not need to undergo re-screening to be employed by Petitioner. 7/ As noted above, the 1998 "licensing study" prepared by Department staff noted that "[s]creening documentation ha[d] been kept up-to-date," but that Ms. Eisen would "be due for 5-year re- screening in July 1998, which would include FDLE and local law checks." Ms. Oken and Ms. Petow (both of whom continued to work for Petitioner through at least June 30, 1999) were never re- screened. As of the time of the final hearing in the instant case, Ms. Eisen had not been re-screened either; however, subsequent to the close of the hearing (as reflected by Petitioner's post-hearing submissions supplementing the evidentiary record), she submitted to re-screening. The criminal records check revealed no disqualifying offenses. (The evidentiary record is silent as to whether the Florida Protective System Abuse Registry portion of the re-screening has been completed.) Training of Petitioner's Staff (Alleged Violation of Rule 65C- 15.018(2), Florida Administrative Code) On June 30, 1999, when Ms. Willson reviewed Petitioner's personnel files, Petitioner had four non-clerical employees: Ms. Eisen; Ms. Oken; Ms. Petow, who, in addition to providing foster care services, worked for Petitioner as a birth mother support coordinator; and Marla Gross, Esquire, who was a staff attorney. Petitioner's personnel file for Ms. Eisen revealed that: her date of hire was February 2, 1996; during her last full year of employment (from February 2, 1998 to February 1, 1999), she had received "additional training" by attending the "Governor's Children Summit" (on February 12, 1998), The Florida Bar Family Law Section's "Legislation Seminar" (which lasted in excess of 15 hours over a three-day period, from March 26, 1998 to March 28, 1998), a "NACAC" 8/ conference (in August of 1998 9/ ), and an "Assoc. Fam. and Con. Courts" conference (in October of 1998 10/ ); and since February 2, 1999, she had obtained further "additional training" by participating in the activities of the "S.W. Fla. Adopt. Task Force" (in March of 1999). Petitioner's personnel file for Ms. Oken revealed that: her date of hire was February 2, 1996; during her last full year of employment (from February 2, 1998 to February 1, 1999), she had received "additional training" by attending a three-hour presentation given on February 20, 1998, on "domestic violence and clinical interventions" sponsored by Women in Distress of Broward County, Inc., a two-hour program held on March 9, 1998, on "domestic abuse" sponsored by the Jewish Federation of South Palm Beach, and a three-hour seminar conducted on January 19, 1999, on "psychological issues in [the] treatment of sexual violence" sponsored by the 45th Street Mental Health Center, Inc.; and since February 2, 1999, she had obtained further "additional training" by attending a two-hour seminar conducted on March 23, 1999, on "violent attachments" sponsored by the 45th Street Mental Health Center, Inc. Petitioner's personnel file for Ms. Petow revealed that: her date of hire was February 2, 1996; during her last full year of employment (from February 2, 1998 to February 1, 1999), she had received "additional training" by attending the "Governor's Children Summit" on February 12, 1998, and by being a "part-time student pursuing [a] social work degree." Petitioner's personnel file for Ms. Gross revealed that Ms. Gross' date of hire was January 12, 1999, and contained no indication that she had received any training in the five and a half months that she had been employed by Petitioner (from January 12, 1999 to June 30, 1999). Foster Parent Training (Alleged Violation of Rule 65C-15.027(1), Florida Administrative Code) Petitioner did not provide foster parent training to the Petows. Ms. Eisen was under the impression that Petitioner, as a private agency, was not required to provide such training. She discussed the matter with Jodi Peterson, a Department employee assigned to the Department's District 9 MAPP Unit, who, on June 17, 1999, by facsimile transmission, advised Ms. Eisen that, "[a]s [Ms. Eisen] had said, trng. hrs. aren't required for private relicensure." 11/ Pre-Placement Screening: The James Case (Alleged Violation of Rule 65C-15.028, Florida Administrative Code) Lori and Jesse James were clients of Petitioner's. Ms. James was a Florida-licensed attorney, who was not engaged in the active practice of law. (She worked for a social services agency in Tampa.) The Jameses were matched with a birth mother residing in Illinois. The birth mother gave birth in a hospital in Chicago. The child tested positive for cocaine exposure at the time of birth. Accordingly, a plan for placement with someone other than the birth mother had to be devised before the child could be released from the hospital. On August 12, 1998, after the child was born, a home study was conducted in the James home. Subsequently, Ms. James left to go to Chicago to take custody of the child and bring the child back to her and her husband's home in Tampa. Mr. James did not accompany his wife on this trip. The child's guardian consented to the child's adoption by the Jameses and took the necessary steps to have the child delivered to Ms. James, who, until her departure from Chicago, kept the child in her hotel room. At the time of the placement of the child with Ms. James, a determination had not been made that both Ms. and Mr. James met screening requirements. It was not until August 20, 1998, that all background screening of the Jameses was completed and Petitioner was able to conclude that the Jameses "met the pre-adoption requirements of Fla. Statutes 63.092(2)(b)." Ms. James returned from Chicago to her home in Tampa with the child sometime after August 20, 1998. Services to Adoptive Parents (Alleged Violation of Rule 65C- 029(2) and (3), Florida Administrative Code At all times material to the instant case, Petitioner's social worker has had post-placement contact with each adoptive family (who has adopted through Petitioner) on at least a monthly basis prior to the finalization of the adoption (which takes at least 90 days from the date of placement). Sometimes (usually no earlier than the third month after placement) the contact has been made by telephone. There have been instances where a month has passed without Petitioner's social worker having had face-to-face contact with an adoptive family; however, Petitioner, in good faith, believed that, for purposes of compliance with Rule 65C- 15.029(2), Florida Administrative Code (which mandates that the agency's social worker "visit" with adoptive parents "at least monthly, after the placement of a child, until the adoption is finalized"), "visiting" by telephone was acceptable. Family Case Records (Alleged Violation of Rule 65C-15.032(1), Florida Administrative Code) The record lacks persuasive competent substantial evidence establishing that, in any particular case, Petitioner has failed to include in its files available information (concerning the family of a placed child) that Rule 65C- 15.032(1), Florida Administrative Code, requires a child-placing agency to include in its records. Adoptive Home Records (Alleged Violation of Rule 65C-15.034(5) and (8), Florida Administrative Code) The record lacks persuasive competent substantial evidence establishing that, in any particular case, Petitioner has failed to include in the files it maintains the summaries of adoptive family contacts required by Rule 65C-15.034(5) and (8), Florida Administrative Code. Compliance with INS Regulations (Alleged Violation of Rule 65C- 15.036(3), Florida Administrative Code) In or about 1999, Petitioner received a telephone call from Cynthia Reilly, the estranged adult daughter of a client of Petitioner's, who alleged that her father had been abusive when she had been a child. Ms. Reilly's father and his wife (Ms. Reilly's step-mother) were seeking to adopt a Romanian child with Petitioner's assistance. Petitioner had already prepared a home study and submitted it to the Immigration and Naturalization Service (INS) at the time it received Ms. Reilly's telephone call. There was no "verifiable record" that the abuse about which Ms. Reilly complained had occurred. Petitioner contacted Ms. Reilly's father, who denied the allegations made by his daughter, and requested him to undergo psychological testing. The father complied. Following the preparation of the psychological report, Petitioner submitted it, along with an addendum to the previously submitted home study, to the INS. INS requested that further psychological testing be performed. Petitioner advised Ms. Reilly's father of this request, and he agreed to undergo such additional testing. The psychologist who conducted the additional testing found no impediment to Ms. Reilly's father becoming an adoptive parent, and so indicated in the report he prepared. This report, like the first psychological report, was sent to INS, together with another addendum to the home study. At the time it first heard from Ms. Reilly, Petitioner had asked her to reduce her allegations against her father to writing and to provide her written statement to Petitioner. After receiving the reports of the psychologists, Petitioner repeated its request Ms. Reilly, however, continued to refuse to provide Petitioner with any written allegations against her father. She did, though, furnish the INS with such a document. At first, she refused to give INS permission to provide Petitioner with a copy of this document, but she finally acquiesced. After reviewing Ms. Reilly's written allegations against her father, Petitioner determined that an independent evaluation of the case should be performed. Sarah Franco of JAFCO performed this independent evaluation. She concluded that family counseling was necessary. When Petitioner told Ms. Reilly's father that there would need to be family counseling, her father told Petitioner, "Well, I'm finished with you all." Ms. Reilly's father and Petitioner thereupon terminated their contractual relationship. Release of Information Regarding Romanian Adoption Law The record lacks persuasive competent substantial evidence that Petitioner, at any time, knowingly disseminated inaccurate or misleading information about the law governing adoptions of Romanian children. Client/Birth Mother Complaints Concerning Petitioner's Fees (Alleged Violation of Rule 65C-15.010(4)(b), Florida Administrative Code) and "Business Practices" The Kellers (Ted and Susan) and Petitioner entered into a Domestic Contract, which had an effective date of December 29, 1996, and an expiration date of December 26, 1998. During the first year of the contract, the "biographical photo album" (referred to in Section VI of the contract) that the Kellers had submitted to Petitioner was shown "a few times," but the Kellers were not selected by any of the birth mothers who had viewed the album. During the second year of the contract, the Kellers were selected by a birth mother from Alabama. The birth mother came to South Florida to meet with, and be counseled by, members of Petitioner's staff. Petitioner paid for the birth mother's transportation expenses. The birth mother spent three or four days in the South Florida area, during which time she stayed in an apartment rented and maintained by Petitioner for the purpose of housing out-of- town birth mothers. The birth mother assured the Kellers that she would, following the birth of her child, consent to the Kellers adopting the child. Petitioner made a good faith, but unsuccessful, effort, prior to the child's birth, to contact the child's birth father. Based upon what it had heard from others, however, Petitioner was led to believe that the father would also give his consent to the adoption. Petitioner, though, never guaranteed the Kellers that "there would not be a problem" with obtaining the birth father's consent. The birth mother decided to give birth in Alabama, rather than in South Florida. The child was born in or about May of 1998. Petitioner contacted an Alabama attorney to help handle the adoption. When Ms. Eisen learned that there might be a problem with the adoption, she traveled to Alabama at Petitioner's expense. The adoption "fell-through" because the birth mother and father, after the birth of the child, refused to give their consent. The Kellers subsequently expressed an interest in adopting a Romanian child. On October 15, 1998, the Kellers and Petitioner entered into an International Adoption Services Contract (International Contract). With respect to the fees to be paid by the Kellers to Petitioner under the International Contract, the Kellers were given a credit for monies that they had paid Petitioner pursuant to the Domestic Contract. Section I of the International Contract described the "agency's undertaking, services and exclusions" and provided, in part, as follows: Agency's Undertaking. The Prospective Adoptive Parents request, and the Agency is willing to provide, international adoption services with the goal of providing to the Prospective Adoptive Parent(s) an offer of placement of an adoptable child from the country of Romania ("the home country") in the Prospective Parent'(s') home at the earliest possible moment. The Agency agrees to make a diligent effort to place such a child with the Prospective Adoptive Parent(s) in accordance with the social service policies and procedures of the Agency, as established and from time to time amended by the Agency's Board of Directors, and in accordance with federal and Florida statutory and administrative law, and the laws of the home country. Agency Services. The Agency's international adoption services include, but are not limited to, every aspect of assisting the Prospective Adoptive Parent(s) through departure for the home country and upon return, including interface with the United States Immigration and Naturalization Service (INS), and coordination with the agency in the home country ("the foreign agency"). . . . Section II of the International Contract addressed the subject of "fees." It provided as follows: Basis for Determining Fees. Pursuant to Florida Administrative Code section 65C- 15.019(4)(b), the Agency's adoption fees have been established based on the reasonable costs of the following services for the total international adoption program, including but not limited to: (1) home study services; (2) counseling services; (3) legal services; (4) foster care services; (5) pre- and post- placement social services; (6) contracted services with foreign agencies; (7) other necessary services, including "dossier" preparation; and (8) agency facilities and administrative costs. Estimated Fees. The Agency's estimated fees statement ("Fee Statement") is attached and incorporated in this agreement by this reference. The Prospective Adoptive Parent(s) Acknowledge(s) the Fee Statement has been thoroughly reviewed by him/her/them with Agency staff and it is completely understood and accepted. Timing and Manner of Payment of Fees. A Home Study Services Fee will have been paid to the Agency prior to execution of this agreement. The "At Contract" fees shown on the Fee Summary are due upon the execution of this agreement, after the Agency's approval of the Prospective Parent's(s') home study. The "Upon Match" fees shown on the Fee Statement, payable to "AAA Escrow Account" ("Escrow") are due in the form of a cashier's check at the time the Prospective Adoptive Parent(s) accept(s) the match, as described in paragraph III, below. Section III of the International Contract addressed the subject of "matching, placement, and finalization of adoption." It provided as follows: Matching. Identification of a child for adoption by the Prospective Adoptive Parent(s) ("matching") will occur by means of his/her/their receiving through the Agency pictures and background information on children fitting their specific requests as to age, gender, medical and social background, within the limitations generally known to attend adoptions from the home country, as more particularly described to the Prospective Adoptive Parents by the Agency. Placement. Placement of the child with the adoptive parents occurs in the country, to which at least one of them (if a married couple) must travel to take placement. Finalization of Adoption. The final legal adoption of the child with the adoptive parents will occur in the home country prior to the child's departure to the United States with the Prospective Adoptive Parent(s). Among the subjects addressed in Section V of the International Contract was "re-finalization of adoption." The following provision in Section V dealt with this subject: D. Re-Finalization of Adoption. The Prospective Adoptive Parent(s) agree(s) to legally re-finalize the adoption of the child in the state where the Prospective Adoptive Parent(s) reside(s) as soon as permitted under applicable state law. For Florida residents, legal fees paid to the Agency include the expense of re-finalization of adoption in Palm Beach County, Florida, by the Agency's legal counsel. Non-Florida residents are responsible for obtaining and compensating counsel in their home state to re-finalize the adoption. Non-residents' home states may require local social worker's reports, filing fees, and other expenses which are the sole responsibility of the Prospective Adoptive Parent(s). Nevertheless, it is understood that the adoption is legally finalized in the home country before the child immigrates, such that all rights and responsibilities for the child pass to the Prospective Adoptive Parent(s) at that time. Paragraph E of Section V of the International Contract addressed the subject of "non-placement" and provided as follows: In the event the Prospective Adoptive Parent(s) are matched with a child but no placement ultimately occurs, the Agency shall continue its best efforts, as set forth in paragraph I.A., above to cause a placement to occur, unless the Prospective Adoptive Parent(s) elect to cancel the contract and receive a refund of all fees remaining in Escrow pursuant to this contract. In Section VI of the International Contract, the subject of "assumption of risks and release of agency liability" was addressed. This section provided as follows: In adoption placement situations there are risks which may or may not be known to the Prospective Adoptive Parent(s), the Agency, its staff, consultants or other third parties involved, hereinafter referred to collectively as "the Agency" in the context of limitations or release of liability. Such risks usually involve legal or medical issues and may be either significant or of little concern. Notwithstanding the best efforts of the Agency and its staff and consultants, some risks may not be knowable or known. Acknowledging this, the Prospective Adoptive Parents hold the Agency harmless and assume the risks of adoption as follows: Change of Prospective Adoptive Parent's(s)' State of Residence. . . . Social and Medical History of Child. . . . Gender and Other Characteristics of Child. Though the Prospective Adoptive Parent(s) may specify the gender of the child to be adopted prior to matching, the Agency cannot predict an adoptive child's future personality, medical problems, learning disabilities, appearance or inherited characteristics. Age of Child at Time of Placement/Non- availability of Identified ("Matched") Child for Adoption. It is anticipated that your child will be no more than eight (8) months old at the time you travel to the home country to take placement of him/her for adoption. This is based upon the normal course of the process for freeing a child for adoption and approving a U.S. placement as that process is presently defined. Nevertheless, delays could occur such that the child would be older at the time of placement. Should a delay occur such that Child will be more than one year old at the time of immigration, the Prospective Adoptive Parent(s) may elect not to take placement of the child, but request a match with another child at the earliest possible moment, or cancel this contract and receive a refund of all fees remaining in Escrow. Additionally, while the Agency agrees to make every reasonable effort to see that a "matched" child remains available for placement and adoption from the home country, the Agency is unable to guarantee such availability given the nature, extent, and variability of the political, legal and medical risks involved. The Prospective Adoptive Parent(s) assume all risks, both known and unknown, that may at any time impair, delay, or preclude the readiness of availability of a "matched" child for placement for adoption. Non-acceptance of Placement. An unadoptable child is a child suffering a medical condition that would cause the child to have other than a normal quality of life, as apparent at the time of placement, or that is not legally free for adoption. The Prospective Adoptive Parent(s) may, at any time, decline to accept placement of an unadoptable child, and request a match with another child at the earliest possible moment, or cancel this contract and receive a refund of all fees remaining in Escrow. Risk of Error of Other Professionals. . . . Private Agreements With Third Parties Unenforceable. No promises or representations made to the Prospective Adoptive Parents by any third party are enforceable by the Agency and are not the responsibility of the agency to enforce. Section VII.G. of the International Contract covered the subject of "termination" and provided as follows: The Agency, in its discretion, reasonably applied, may terminate its relationship with the Adoptive Parent(s), if it is determined by the Agency, after consultation with the Prospective Adoptive Parent(s), that the Agency's program and Prospective Adoptive Parent's (s') goals, expectations, and/or intentions regarding adoption are incompatible. Section VII.H. of the International Contract addressed the subject of "entire agreement/severability" and provided as follows: This agreement, including the Agency's current Fee Statement, and the Agency's agreement with the foreign agency, both attached hereto, sets forth the entire, sole and exclusive understanding of the parties. No promises or representations previously or contemporaneously made are enforceable. Any changes in this agreement must be in writing and signed by the party to be charged with any new or modified undertaking. If any portion or portions of this Agreement are found by a court of competent jurisdiction to be enforceable, the remaining Agreement shall remain in full force and effect, except as provided elsewhere herein. The "release of previous contracts" was addressed in Section VII.I of the International Contract, which provided as follows: This agreement supercedes any previous contracts between the parties and releases the parties from all obligations thereunder. An Addendum to the International Contract was executed by the Kellers on October 19, 1998, and by Petitioner on October 20, 1998. It provided as follows: The agreement for international adoption services ("the Agreement") of even date by and between Adoption advisory Associates ("the Agency") and Susan and Ted Keller ("Susan and Ted") is hereby amended as follows: The home study update fee shall be $750 The fees due "at contract" shall be $852.41 The fees due "upon match" shall be payable as follows: $6,416.68 due upon match; $6,416.66 due 90 days later. $6,416.66 due 30 days before the anticipated date for departure to Romania. Notwithstanding the effect of the foregoing timetable of payments, all fees shall be paid in full prior to departure for Romania. Should Susan and Ted elect to cancel the Agreement as provided in paragraph V.E., VI.D., and VI.E. thereof, the refund amount due shall be $19,250, in full settlement of all Agency obligations hereunder. Provided, however, that the Agency shall not be liable for refund of the $2,500 paid to the foreign agency until sixty (60) days after receipt by the Agency of written notification by Susan and Ted of their cancellation of the contract. On or about December 15, 1998, Petitioner advised the Kellers by facsimile transmission that two Romanian children had been referred to Petitioner. After being provided with health histories of the children, the Kellers indicated, in a December 16, 1998, facsimile transmission, that they were "interested" in one of the children, a boy who had been surrendered by his natural parents and was, at the time, approximately one month old, and that they looked forward to "see[ing] a picture [of the boy] and get[ting] more information [about him] from Romania." Not having received any additional materials concerning the boy, the Kellers, on January 3, 1999, informed Petitioner in writing that they had "decided to cancel [their] contract with [Petitioner], as there seemed [to them that there was] little or no reason to believe that anything [would] materialize." In their written correspondence, the Kellers demanded, among other things, "that $3750.00 be returned" to them. Petitioner did not obtain photographs of the boy until January 11, 1999. Upon receiving the photographs, Petitioner sent them to the Kellers. Later that day, Ms. Eisen spoke with Mr. Keller, who reiterated his and his wife's desire to cancel the International Contract they had entered into with Petitioner. On January 13, 1999, Ms. Eisen sent the following letter to the Kellers: Pursuant to your letter dated January 3, 1999, and as agreed in my telephone conversation with Ted on January 11, 1999, we are cancelling our contract with you dated October 15, 1998, and are sending you the following: your original home study dated 12/29/96; your home study update dated 9/30/97; your DCF Protective Services clearance dated 5/28/98 (all other clearances are now more than one year old and thus outdated); your photo album; our check number 11186 in the amount of $1,602.41. With regard to the refund check, I was able to bring the matter before the agency's Board of Directors last evening at its quarterly meeting. The Board unanimously approved cancellation and a refund in the amount of the check tendered upon signing your international placement contract three months ago, notwithstanding that we have already referred to you a child, Ilie, born November 16, 1998, which you indicated you wished to pursue. Michael and Rasamee Wolf were residents of Maryland. They had previously adopted a child with the assistance of Adoption Connection. In or about June of 1996, the Wolfs submitted to Petitioner an Application for Adoption, a family photograph album, a copy of a home study that had previously been done, and a check made payable to Petitioner. It took Ms. Eisen approximately ten days to contact Mr. Wolf (who traveled quite a bit) and advise him there were "additional requirements that had to be met before [Petitioner] could enter into a contract with [him and his wife]." Mr. Wolf instructed Ms. Eisen to "deposit the check" and told her that he and his wife would "work on getting the stuff in." Ms. Eisen followed Mr. Wolf's instructions and deposited the Wolfs' check. In December of that same year (1996), after some delay, the Wolfs provided Petitioner with the required materials. Thereafter, on December 17, 1996, Petitioner and the Wolfs entered into a Domestic Contract. Prior to the expiration of the contract, after having been offered a match by Petitioner, the Wolfs informed Petitioner that they wished to cancel the contract. Thereafter, Ms. Eisen sent the Wolfs the following letter dated September 22, 1998: This is to confirm my conversation with Mike last week, when we offered you placement of Melanie's child born in Texas on September 11, that you have decided to withdraw from our list of waiting parents. We know this was not an easy decision, but recognize that only you know what is best for your family at this time. Our two-year contract with you expires on December 17, 1998. It is my understanding that you wish to cancel that contract, and we concur. By the contract's terms, there is no refund due to you of fees previously paid. Please sign and return the enclosed copy of this letter to indicate your cancellation of our contract. Your album is being returned under separate cover. We wish you the best and hope to keep in touch. By letter dated October 23, 1998, Michael Salnick, Esquire, an attorney retained by the Wolfs, advised Petitioner that the Wolfs disagreed that they were not entitled to a refund and he demanded that Petitioner "send a check in the amount of seven thousand five hundred dollars to [Mr. Salnick's] office payable to Michael Wolf." Petitioner's Board of Directors, at its January 12, 1999, quarterly meeting, voted unanimously not to refund any monies to the Wolfs. Ms. Eisen notified Mr. Salnick of the Board of Directors' action by letter dated January 13, 1999. In August of 1996, Gilda Marin, a single woman in her forties, entered into a Domestic Contract with Petitioner. Ms. Marin paid Petitioner approximately $7,500.00. During the home study, Ms. Marin stated that she wanted "to adopt a newborn Cuban or Caucasian baby girl in good physical and mental health." In addition, in the "Special Situations Questionnaire" that she filled out, she indicated that she would accept an "interracial infant" if it was "Cuban/Caucasian." During the two years that her contract with Petitioner was in effect, Ms. Marin was offered a biracial baby and no other placements. Following the expiration of her contract, she filed a complaint with the Department after being told by Petitioner that she was not entitled to any refund. Upon learning of Ms. Marin's complaint, Ms. Eisen sent the following letter, dated August 9, 1999, to Ms. Marin: Enclosed you will find: (1) a summary by the Florida Department of Children & Families of your complaint against our agency and (2) our response to your complaint. As you will see from our response, we discovered a very big and very regrettable mistake in our handling of your case as a result of the Department's investigation of your complaint. Specifically, we were looking to find for you a child, originally a girl, of Cuban/Caucasian background, not of Cuban or Caucasian background. We assume the Department has already informed you of our desire to offer you a Romanian placement with no "domestic agency fee" charge (a savings of $8,500), as set forth in our response. Though we have not heard back as to your reaction, we have included your name on a list of our current clients we recently submitted to the Department, just in case you might still be interested in considering Romanian adoption. Gilda, I personally hope you will accept our sincere apology for our error in handling your case, and that you will let us make it up to you as proposed. I would like the opportunity of meeting with you at your earliest convenience to discuss the entire matter and, if you are interested, go over what you can expect in terms of time, etc., until match and placement. I would also like you to meet the attorney I hired in January to be exclusively responsible for overseeing the Romanian program. She is presently in Romania, but will return day after tomorrow, so we could see you as early as Thursday. I know that this a particularly busy time for you at the law school, so we would be happy to come to you, either at work or at home. I hope I have managed to convey the depth of our remorse for the disappointment and upsetment we caused you. I know you hesitated to formalize your complaint against this agency, which causes me to believe there may be hope of salvaging our relationship. Please let us hear from you. Ms. Marin responded to Ms. Eisen's August 9, 1999, letter by writing Ms. Eisen and informing her that she did "not wish to continue working with Adoption Advisory Associates any further." There has been no further communication between Ms. Marin and Petitioner. Frank and Suzanne La Barbera entered into a Domestic Contract with Petitioner on January 30, 1997. Inserted on the bottom of the first page of the contract was the following handwritten notation that was initialed by Ms. Eisen and the La Barberas: "No HIV, unsightly facial deformities, blindness, deafness or other life-altering or threatening conditions as known at the time of placement." Before they signed the contract, the La Barberas stated to Petitioner that they had "concerns" that two years (the length of the contract) might not be enough time for Petitioner to find a match for them. While Petitioner, in response to these "concerns" voiced by the La Barberas, may have (truthfully) indicated that, up until that point in time, it had never failed to offer a client a placement, at no time did it guarantee the La Barberas or any other prospective adoptive parent(s) that, prior to the expiration of the contract, they would be offered a placement. Notwithstanding their concerns, the La Barberas entered into a contractual relationship with Petitioner. As Ms. La Barbera testified, they were "desperate." The La Barberas paid Petitioner approximately $6,600.00. Shortly after they signed the Domestic Contract, the La Barberas were advised that they were matched with a birth mother. The La Barberas met with the birth mother in the hospital after the child was born (in or about March of 1997). Following the meeting, the birth mother decided she did not want her child to be placed with the La Barberas and, therefore, no such placement was made. A few months later, the La Barberas were offered a match by an attorney, Stuart Horowitz, Esquire. After seeking and receiving (at no additional cost) Ms. Eisen's legal advice on the matter, the La Barberas declined Mr. Horowitz's offer. In August of 1997, the La Barberas were considering taking a cruise/vacation for which they had to make a nonrefundable deposit. On or about August 17, 1997, they telephoned Petitioner to find out if there were "any prospects of a match for them" that might interfere with their vacation plans. At the time, Petitioner knew of no such immediate "prospects" and so informed the La Barberas. On or about August 19, 1997, the La Barberas made reservations and paid $2,458.00 (by credit card) toward their cruise/vacation. On or about August 23, 1997, Petitioner contacted the La Barberas and told them that it had a match for them. Rather than go on the cruise/vacation they had paid for, the La Barberas chose to stay in South Florida to be at the hospital when the birth mother with whom they had been matched gave birth to her child. The La Barberas lost "close to $2,000.00" of the $2,458.00 they had paid toward their cruise/vacation. When the child was born, it had a cleft lip. Upon being shown the child and noticing the child's cleft lip, Ms. La Barbera ran from the room crying. The La Barberas decided not to take the child. The child was thereupon placed with another couple. Approximately, four weeks after the child was born, the child's lip was repaired. Following the La Barberas rejection of the child, Petitioner's social services director recommended to them that they undergo counseling, a recommendation that they refused to follow. No other placements were offered to the La Barberas during the remainder of the term of their contract with Petitioner. David and Paula Bergeron entered into a Domestic Contract with Petitioner on October 6, 1998. They paid Petitioner approximately $11,500.00 in "contract fees" on that same date. On the agency Application for Adoption and the Department's Adoption Home Application forms that they filled out and submitted, the Bergerons falsely stated that they had never been arrested. Background screening revealed that, contrary to the assertions the Bergerons had made on the aforementioned forms, both of them had arrest records. Ms. Eisen, after learning about the Bergerons' arrest records, asked them to meet with her to explain why they had not revealed these arrests on their applications. At the meeting, Ms. Bergeron claimed that she had forgotten about her prior arrests (which were for shoplifting in 1974 and possession of "dangerous drugs" in 1975), an explanation that Petitioner did not deem to be credible. When he was asked about his failure to disclose his prior arrests, Mr. Bergeron told Ms. Eisen, "I thought that it was your job to do your homework and . . . its too bad. Now that you have discovered it, it's your problem." Following Ms. Eisen's meeting with the Bergerons, she brought the matter of the Bergerons' lack of candor regarding their arrest records to the attention of Petitioner's Board of Directors. By letter dated November 11, 1998, which read as follows, Ms. Eisen informed the Bergerons of the action taken by the Board of Directors: As you know, our Board of Directors considered last night the Executive Directors' recommendation to cancel the agency's domestic adoption services contract with you in light of certain matters of a criminal nature which you failed to disclose in your application to adopt. The Board decided to accept the recommendation of the Executive Directors. Accordingly, you are hereby notified of cancellation of our contract pursuant to section VI, thereto, which provides as follows: "A. Accurate Information from Prospect[ive] Adoptive Parents. The Prospective Adoptive Parents have completed Agency application materials . . . and understand that any inaccurate information provided constitutes grounds for termination of this agreement by the Agency and forfeiture of any fees paid to the Agency." Notwithstanding that the terms of the contract do not entitle you to any refund of contract fees, the Board has authorized a refund of $5,000.00 pursuant to the spirit of the general refund policy shown on the back of the Fee and Expense summary attached as the last page of the contract. A check in that amount and your photo album will be sent to you within fifteen (15) days. On or about November 27, 1998, Petitioner sent the Bergerons a refund check in the amount of $5,000.00, which the Bergerons subsequently cashed. In December of 1997, Mitchell and Tamra Brandt met with Ms. Eisen and Ms. Oken to discuss the possibility of Petitioner providing the Brandts with domestic adoption services. During the meeting, the Brandts were shown, but never asked to sign, a Domestic Contract. Although they did not enter into a Domestic Contract with Petitioner, the Brandts did pay Petitioner $1,500.00 to conduct a home study. Everything that needed to be done to complete the home study, including background screening, was done. Background screening revealed that Mr. Brandt had been arrested for grand theft in 1989. On the Application for Adoption form that the Brandts filled out on or about January 28, 1998, and submitted as part of the home study, they failed to disclose this arrest. Background screening further revealed that there had been a report received and investigated by the Boca Raton Police Department on July 13, 1997, that Mr. and Ms. Brandt were involved in a "domestic disturbance." The police report reflected that Ms. Brandt had told the investigating officer that Mr. Brandt had, earlier that evening, "pushed her out their vehicle." Following the completion of the home study, Petitioner advised the Brandts that, if they did not undergo counseling, Petitioner would not be able to "approve" their home study and enter into a contract to provide them adoption services. The Brandts chose not to undergo counseling. Instead, they asked Petitioner for a refund of the $1,500.00 they had paid for the home study. Petitioner refused to give the Brandts a refund. Subsequently, the Brandts went to another child- placing agency, which, for $1,500.00 (the same amount that Petitioner had charged the Brandts), performed a home study and later assisted the Brandts in adopting a baby girl. The record lacks persuasive competent substantial evidence establishing the amount of the fees and costs paid by the Jameses to Petitioner, and the amount of other expenses they incurred, in connection with their adoption of the child with whom they had been matched by Petitioner. On June 30, 1999, Vincent and Patricia Durante entered into an International Adoption Services Contract with Petitioner (the Durantes' International Contract). The provisions of the Durantes' International Contract were substantially similar in all material respects, except as noted below, to the provisions of the (original) International Contract between the Kellers and Petitioner set forth above (the Kellers' International Contract). Unlike the first paragraph of Section VI.D. of the Kellers' International Contract, Section VI.D. of the Durantes' International Contract provided as follows: Age of Child at Time of Placement/Non- availability of Identified ("Matched") Child for Adoption. It is anticipated that your child will be no more than TBD* months old at the time you travel to the home country to take placement of him/her for adoption. This is based upon the normal course of the process for freeing a child for adoption and approving a U.S. placement as that process is presently defined. Nevertheless, delays could occur such that the child would be older at the time of placement. Should a delay of more than 4 months occur, the Prospective Adoptive Parents may elect not to take placement of the child, but request a match with another child at the earliest possible moment. Unlike the Section VII.G. of the Kellers' International Contract, Section VII.G. of the Durantes' International Contract provided as follows: Termination. This agreement shall terminate two years from the date hereof or upon finalization of the adoption of a child placed by the Agency with the Prospective Adoptive Parents for that purpose, whichever occurs earlier. Provided, however, that the obligations of the Prospective Parents to provide to the Agency post-adoption pictures and updates on the child's progress shall survive until the child is eighteen (18) years of age. The Agency, in its discretion, reasonably applied, may terminate its relationship with the Prospective Adoptive Parents, if it is determined by the Agency, after consultation with the Prospective Adoptive Parents, that the Agency's program and the Prospective Adoptive Parents' goals, expectations, and/or intentions regarding adoption are incompatible. The Durantes paid Petitioner approximately $7,000.00. On or about July 6, 1999, the Durantes telephoned Petitioner and advised that they had heard of a possible adoption opportunity in California that they were interested in investigating. On or about July 8, 1999, Petitioner sent the Durantes the following letter: Based on your call to us on Tuesday, July 6th, we understand that you would like to come in and discuss some issues related to a potential domestic adoption situation. As such, Cheryl and Sally will be meeting with you and Vince on Tuesday, July 13th. Please note that we have ceased work on your international adoption file until such time and that this will delay the current processing of your paperwork. If you have any questions, please do not hesitate to call. Ms. Eisen and Ms. Oken had a lengthy meeting with the Durantes on July 13, 1999, concerning the "potential domestic adoption situation" in California. The Durantes were not charged any additional monies for the time Ms. Eisen and Ms. Oken spent meeting with them. In or about August of 1999, the Durantes advised Petitioner that the "potential domestic adoption situation" in California had fallen through and that they were once again interested in pursuing an international adoption. Petitioner thereupon worked with the Durantes to gather the documentation that would be necessary to effectuate an international adoption. The Durantes had indicated that they wanted to adopt a girl. In or about October of 1999, Petitioner informed the Durantes that there was a Romanian girl named Elena potentially available for adoption through Petitioner. On or about October 12, 1999, the Durantes got back with Petitioner and advised that they did not want to be considered as potential adoptive parents for Elena. By letter dated October 21, 1999, the Durantes' attorney, Holly Davidson Schuttler, Esquire, requested a refund of the monies the Durantes had paid Petitioner. Petitioner responded to this request by letter dated October 25, 1999, from Ms. Eisen to Ms. Schuttler, in which Ms. Eisen stated, in pertinent part, the following: In conclusion, we have never "misrepresented" our status to the Durantes, nor have they been "deceived." They have lost no money, and any time lost has been attributable to their own delays. If the Durantes wish to cancel their contract, all monies, other than the cost deposit (less funds already expended) are non-refundable as per the contract. We are prepared to continue our services to the Durantes until a placement occurs, as long as we have their cooperation. I believe it would be beneficial for us to discuss this matter in person or by phone to further clarify the situation and to satisfy you and the Durantes of the security of their position with this agency. The Durantes and their adoption are very important to the agency and me, personally, and we will do all that is necessary to see to it that their adoption plans are realized. Not having heard back from Ms. Schlutter, Ms. Eisen, on or about November 3, 1999, sent Ms. Schlutter the following letter: I had hoped to hear from you by now in response to my letter of October 25, 1999. It is important for us to know immediately whether the Durantes are reconsidering their position as expressed in your letter dated October 21, 1999, in light of my response. If the Durantes would like to go forward under the contract, we have work to do to prepare their dossier, which entails expenditure of funds from their costs deposit. We also need to know when they would be in a position to accept a referral as we have children waiting. Finally, I am going to be traveling to Romania on the 6th, and will be in and out of town throughout the month of November. Please let me hear from you by noon on Friday, November 5. Ms. Eisen and Ms. Schlutter spoke on the telephone on November 5, 1999. Ms. Schlutter indicated that she would get back with Ms. Eisen in about a month and let her know about the Durantes' intentions. Approximately a month and a half passed without Ms. Eisen's hearing from Ms. Schlutter. Accordingly, on or about December 22, 1999, Ms. Eisen sent Ms. Schlutter the following letter: Further to our correspondence in October and our brief telephone conversation on November 5, 1999, can you please let us know whether the Durantes are continuing with the program. We have children to refer and work to do on the Durantes' file if they still wish to adopt. Ms. Eisen never received a response to this letter. It has not been shown that Petitioner's adoption fees have, at any time, been based on other than the reasonable costs of necessary services for Petitioner's total adoption program. L. K. gave birth to a baby girl on February 3, 1998. Pursuant to L. K.'s consent, her daughter was surrendered to Petitioner and adopted by one of Petitioner's clients, C. and F. F. On September 20, 1997, Ms. Eisen presented and explained to L. K. the following Acknowledgement of Non- Enforceability of Agreements Between Birth and Adoptive Parents, which L. K. signed that same day: I understand and acknowledge that neither Adoption Advisory Associates nor the courts can enforce any promises, either written or oral between the adoptive couple and myself regarding matters to occur after I surrender my child for adoption. One such promise that C. and F. F. had made to L. K. was that, following the finalization of the adoption, they would send L. K. photographs of her daughter and written updates about the progress of the child every year "around" the child's birthday. The adoption was finalized in October of 1998. As of the date of L. K.'s testimony during the final hearing in this case (February 22, 2000), L. K. had not received from C. and F. F. the promised photographs and progress report for the year ending February 3, 2000.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue a final order in which it denies Petitioner's request that Petitioner be granted another full-year regular license and instead grants Petitioner, pursuant Section 409.175(6), Florida Statutes, a provisional license as described above. DONE AND ENTERED this 13th day of June, 2000, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of June, 2000.
The Issue Should Respondent's family foster home license be revoked, suspended, or otherwise disciplined based on the facts alleged in the Notice of Denial dated August 27, 1998, as amended?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Department is the agency of the State of Florida charged with the responsibility of licensing family foster homes and administering the foster care program as it relates to family foster homes, such as providing foster care supervision and services. On June 16, 1997, Kristie and Robert Huggins (Huggins) of 1403 Chamberlain Loop, Lake Wales, Polk County, Florida, were issued a Certificate of License by the Department to operate a family foster home for children. Subsequently, the Department placed foster care children in the Huggins' home. At all times pertinent to this proceeding, the Department had the children A.M., born December 29, 1996, L.M., born September 30, 1995, and A.C., born October 22, 1996, placed in the Huggins' home. The Notice of Denial dated August 27, 1998, provides in pertinent part as follows: . This letter provides notice that your license as a foster home is revoked based on Section 409.175(8), Florida Statutes, and Rule 65C- 13.001, Florida Administrative Code (F.A.C.). The reasons for the revocation are as follows: Vickie Barron, of Nurturing Families Project, Evelyn Liamison [sic], Guardian Ad Litem, and Family Service Counselors Patrice Thigpen and Desiree Smith noted as to Mrs. Huggins' "possessiveness" of the children toward the birth parents. The children were known in the Busy Bee Preschool as the "Huggins Children." The children's belongings were marked as "Huggins." These actions violate Rule 65C-13.010(1)(b)(1)(c)(F.A.C.), which states that substitute care parents are expected to help children in their care to maintain a sense of their past and record of their present. Bruises and other injuries noted by Vickie Barron of Nurturing Families Project, Evelyn Liamison [sic], Guardian Ad Litem, and the birth parents. The Busy Bee Preschool also noted bruises and various injuries to the three children on 2/13/98, 2/26/98, 3/2/98. 3/16/98, and 3/23/98. While they resided in the Huggins' home. Since the children have moved from the home, these types of injuries are not occurring. Rule 65C-13.009(e)(10) (F.A.C.), require that foster parents must be able to provide a healthy and safe environment for children and youth and keep them from harm. You have failed to comply with this rule. Desiree Smith, Family Service Counselor, noted that on 3/12/98, when Mrs. Huggins was questioned about a bruise on a male foster child, she told Desiree Smith that the bruise occurred at the daycare. The daycare notes reflected that Mrs. Huggins told the daycare that the bruise was received at the doctor's office. This violates Rule 65C- 13.010(4)(1)(F.A.C.), which states that the substitute care parents must notify the department immediately of illness or accidents involving the child. You did not notify the department when you and Mr. Huggins separated. This violates Rule 65C-13.010(4)(g), which states substitute care parents must notify the department regarding changes which affect the life and circumstances of the foster family. Your violation of the above mentioned Administrative Rules created an unsafe environment for foster children. Section 409.175(8)(b)1, Florida Statutes. At the beginning of the hearing, the Department made an ore tenus motion to amend certain rule citations in the Notice of Denial. The motion was granted and the citations to Rules 65C-13.010(1)(b)(1)(c)(F.A.C.); 65C-13.009(e)(10)(F.A.C.); 65C-13.010(4)(1)(F.A.C.); and 65C-13.0010(4)(g)(F.A.C.) were amended to read as follows: Rules 65C-13.010(1)(b)1.c.; 65C-13.009(1)(e)10.; 65C-13.010(4)(j); and 65C-13.010(4)(g), Florida Administrative Code, respectively. Respondent was a very loving, caring and affectionate foster parent and expressed her love, care, and affection with L.M., A. M., and A.C. both in and out of the foster home. From the very beginning, Respondent understood that the ultimate goal for L.M. and A.M. was reunification with their biological parents. At some point in time after A.C. was placed in foster care with Respondent, she expressed a desire to adopt A.C. At this time, Respondent understood (mistakenly) that the goal was to terminate the parental rights of A.C.'s biological parents. However, the Department's goal was for reunification and not termination of parental rights. In fact, it is not unusual for foster parents to adopt a child placed in their care when and if the Department terminates the parental rights of the biological parents and offers the child for adoption. Upon learning of the Department's goal of reunification for A.C., Respondent did not pursue the issue of adoption of A.C. Apparently, Vicky Barron and, to some degree, Evelyn Lamison misunderstood Respondent's love, care, and affection for these children as possessive and interfering with the goal of reunification. Vicky Barron is employed by Regency Medical Center, Winter Haven, Florida, supervising the Nurturing Families Program. Evelyn Lamison is the guardian ad litem for L.M. and A.M. Patricia Bryant, Family Service Counselor with the Department, described Respondent as being over-protective but did not see Respondent's love, care, and affection for the children as being an attempt to undermine the goal of reunification. Respondent enrolled L.M., A.M., and A.C., in the Busy Bee Preschool. At the Busy Bee Preschool, the children were at times referred to as the "Huggins" children. However, there was no attempt by Respondent or her husband to conceal the fact that the children were their foster children. They were enrolled under their biological parents' name. Some of their belongings were marked "Huggins" and some of the belongings were marked in the child's given name. The marking of the children's belongings was for the convenience of the Busy Bee Preschool and not intended as a means to deprive the children of sense of their past or present. Although there may have been some hostility on the part of both the Respondent and the biological parents of the children, there was insufficient evidence to show that Respondent, either intentionally or unintentionally, attempted to interfere, sabotage, or prevent the ultimate goal of reunification of the children with the biological parents, notwithstanding the testimony of Vicky Barron and Evelyn Lamison to the contrary, which I find lacks credibility. Without question, there were bruises, scratches and bug bites on L.M., A.M., and A.C. during their stay at Respondent's foster home. Some of these scratches and bruises occurred in and around Respondent's home, some of them occurred at the Busy Bee Preschool. On at least one occasion (March 12, 1998) A.C. fell while in the doctor's office and bruised his face. This bruise was noted in the Busy Bee Preschool notes, as were other scratches and bruises to the children received at home or at the Busy Bee Preschool. The incident of March 12, 1998, was documented by the doctor's office. In fact, it became the basis of an abuse report filed against Respondent which was determined to be unfounded. This alleged abuse was not reported until June 4, 1998. There is no evidence to support the allegation that Respondent told Desiree Smith that the bruise to A.C.'s face which occurred at the doctor's office occurred at the Busy Bee Preschool. Another abuse report was filed against Respondent concerning L.M. and A.M. on March 24, 1998, which was closed as unfounded. Vicky Barron testified that she was the reporter in both abuse reports. She also testified that she disagreed with the Child Protective Investigator's finding that there was no evidence of abuse. Her disagreement was such that she contacted the Investigator's supervisor in an attempt to have the finding reversed. Based on the testimony of the Department personnel and the Busy Bee Preschool personnel who testified at the hearing, it is clear that these bruises, scratches, and bug bites were no more or no less severe than bruises, scratches, and bug bites experienced by other active children the age of L.M., A.M., and A.C., notwithstanding the testimony of Vicky Barron and, to some degree, Evelyn Lamison to the contrary, which I find lacks credibility. Although there is no allegation concerning the Respondent's home, it is clear that Respondent kept her home neat, clean, and safe (although there was some clutter at times). However, when a matter concerning the children's safety was brought to Respondent's attention it was corrected. There is insufficient evidence to show that Respondent failed to provide a healthy and safe environment for L.M., A.M., and A.C. and to keep them from harm. While there may have been problems between Kristie Huggins and Eric Huggins, Kristie Huggins did not anticipate a separation until April 23, 1998, when Eric Huggins failed to return home after his trip out of town. Through Patty Fazzino, Respondent advised the Department's office in Tallahassee, Florida, of the separation. Subsequently, the Department's Tallahassee office advised the Lakeland office. Although Respondent did not directly notify the Department's local foster care licensing personnel, the Respondent did not intentionally or unintentionally fail to notify the Department of her separation from Eric Huggins. Likewise, Respondent did not fail to immediately notify the Department of any illness or accidents concerning L.M., A.M., and A.C. which required department notification. It appears from the testimony of Mary Jordan that Respondent has completed the necessary hours of training for relicensure but would need to complete some paper work.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Children and Family Services enter a final order granting Respondent Kristie (Huggins) Pfingston her family foster care license. DONE AND ENTERED this 2nd day of April, 1999, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of April, 1999. COPIES FURNISHED: Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John S. Slye, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Jack Emory Farley, Esquire Department of Children and Family Services 4720 Old Highway 37 Lakeland, Florida 33813-2030 Raymond A. Goodwill, Jr., Esquire 107 Avenue A, Northwest Post Office Box 2334 Winter Haven, Florida 33883
The Issue The issue in this case is whether Petitioners' application to become adoptive parents should be granted.
Findings Of Fact In the early part of the year 2000, Petitioners filed an application to become adoptive parents. On March 20, 2000, Respondent denied Petitioners' application. The decision to deny Petitioners' application was based entirely on an abuse investigation from 1989. The subject of the abuse report was Michael Jones who is the ex-husband of Tamara Harrington. The incident occurred while Mr. Jones' mother, a responsible person, was watching Ms. Harrington's son and daughter while Ms. Harrington was at work. The alleged abuse consisted of fondling by Mr. Jones of Ms. Harrington's daughter who was then 12 years old. The abuse allegation was confirmed against Michael Jones. The report was not confirmed against Tamara Harrington. She had not been the subject of the abuse report. She had not been present when the alleged abuse occurred and was not responsible for its occurrence. She had no prior knowledge that Mr. Jones might behave in such a manner. In fact, the only reason her name was in the report was that she was the mother of the victim of the report. She never saw the report and did not know what was in it. Because Ms. Harrington was not the subject of the abuse report she never had an opportunity to refute the statements. After the 1989 incident, neither Ms. Harrington or her children saw Mr. Jones again. The Department made its decision based upon the 12 year old hearsay statements reported by the daughter to have been allegedly made by Tamara Harrington after the abuse incident occurred. Specifically, what allegedly occurred when she was made aware of the incident by her daughter was that she said, "It's okay, he just wanted to see how big you were getting." These statements were unknown to Ms. Harrington. Ms. Harrington denies making any statement like the one contained in the report. Indeed the report is incorrect that these alleged statements were made to the daughter. According to the daughter, who is now in her twenties, the statements were reported to her by her step-mother as being said to her father at a time when Ms. Harrington had come to check on her daughter. The daughter did not believe that her mother would ever say anything like what she reported. She testified that, at the time of the abuse, she had told her mother the touching was an accident and only involved her thigh. The report indicates Mr. Jones fondled the daughter's bust and buttocks. The daughter also reported, in 1989, that her mother was uncaring. The daughter made these statements because she was very angry with her mother for divorcing her father. None of the statements were true. In fact, the daughter testified that her mother was a very loving and caring individual, who was an excellent parent to both her and her brother. She also testified that Ms. Harrington would make an excellent parent for an adoptive child. In all other respects, the Petitioners appear to be ideal candidates for adoptive parents. The home study approved both the Petitioners as potential adoptive parents. Ms. Harrington has already been approved for a license to provide home day care. In fact, the evidence did not demonstrate any credible basis for denying their application for adoption. Therefore, Petitioners' application to become adoptive parents should be approved.
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 granting and approving Petitioners' application to become adoptive parents. DONE AND ENTERED this 2nd day of April, 2001, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 2nd day of April, 2001. COPIES FURNISHED: Keith G. Andrews, Esquire 337 East Bay Street Jacksonville, Florida 32202 Robin Whipple-Hunter, Esquire Department of Children and Family Service Post Office Box 2417 Jacksonville, Florida 32231 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
Findings Of Fact Petitioners, Earl D. Rodgers and Patricia A. Rodgers are husband and wife. Earl D. Rodgers is a career noncommissioned officer with the United States Air Force currently stationed at the Avon Park Bombing and Gunnery Range. In October 1986, Petitioners attended a training class for pre-adoptive parents given by Linda P. Simmons, a children, youth and family counselor with the Department's adoption unit in Sebring. The training consists of five to six classes during which there is interaction between the prospective parents and information given on what special needs children are, their special needs, the type of parents needed to minister to them, and other related matters. Petitioners took all classes and filled out the proper forms along with their biographies. Once this preliminary paperwork is submitted, Ms. Simmons then conducts preliminary home checks. Because of certain aspects of Mrs. Rodgers' responses to questions during the classes, Ms. Simmons also requested a psychiatric evaluation of the Petitioners at some time during August or September 1987 and, in both a letter and telephone conversations with Mrs. Rodgers, advised them that the psychiatric evaluation must be conducted by a licensed psychologist whose report should be based on a clinical interview and appropriate tests. In response to this request, Ms. Simmons received a two-page statement from a clinical social worker at the MacDill AFB Hospital who did not meet the criteria established for a licensed psychologist. When she received this evaluation, Ms. Simmons again advised the Rodgers it was insufficient and again requested a full psychological study. It has not yet been furnished. During the course of her background investigation, Ms. Simmons also received from Petitioners the names of four references. However, before the requests for reference could be sent out, two of the four were married to each other, thereby reducing the qualified reference sources to three. To make up the fourth, Ms. Simmons sent a form to Petitioner's First Sergeant. Of the four requests sent out, Ms. Simmons received only one response. According to Ms. Simmons, this reference was acceptable. However, it was substantially below the average reference received in an adoption situation. Specifically, with regard to question three on the form, when the respondent indicated the applicants displayed an attitude of willingness to work with others in approaching a problem, "most of the time," Ms. Simmons was somewhat less than comfortable with this answer. This reference, along with the clinical social worker's evaluation, was all Ms. Simmons had at the time she conducted her home study and because of the lack of other references and the lack of a "psychological" study, she recommended denial of the Rodgers' application. Her recommendation, however, was returned to her by her supervisor with a request for more information. Ms. Simmons then advised the Rodgers she needed additional references and a proper psychological evaluation. In response, they gave her the names of three more prospective references and she sent forms to each of them as well as those of the former individuals who had not responded. Out of these six requests, only one resulted in a response, which, itself, was totally noncommittal. Since it contained no information usable by the department to evaluate the Rodgers as prospective adoptive parents, Ms. Simmons considered this latter response a negative reference in comparison to the usual reference given in cases of this nature. Normally, in cases of this nature, all requests for references are responded to in a positive way. Because here the two references received were noncommittal, Ms. Simmons felt there was an even greater need for the proper psychological evaluation which was not forthcoming regardless of the repeated explanations and requests. After the second reference response, Petitioners asked for ten reference forms to hand deliver. Though this is an unusual procedure, Ms. Simmons nonetheless granted this request in an effort to get further evaluations. Even in this case, however, only five of the ten requests given out were returned and in Ms. Simmons' opinion, these five were neutral. Upon receipt of these forms, however, Ms. Simmons sent an amended home study report in and based on the lack of responsive references, recommended an in-depth study of Petitioners' situation. On the basis of the information she submitted, however, the application was denied at the District Office. Considering all available information, Ms. Simmons concurs in the denial, concluding independently that the Rodgers are not appropriate adoptive parents. Kathryn Main participated in one of the five training sessions for pre- adoptive parents attended by the Petitioners and at that time, based on her observation of Mrs. Rodgers at the session, was of the initial impression that she was an angry person. She was not responsive to the training information and did not interact with the trainer. She observed Mrs. Rodgers over a period of about two hours and, based on the conversations she has had with many other couples in training, concluded that Petitioners' reactions at the training session were aberrant. She would, nonetheless, not have made a determination to deny adoptive status based on that only. She was, however, in contact with Ms. Simmons who evidenced a growing concern about the Rodgers. Ms. Simmons told, for example, that on one occasion, Mrs. Rodgers called in tears and stated that if she could not get a child, life wasn't worth living. On another occasion, Sergeant Rodgers called to express concern that the home study and application was not progressing speedily. She is quite certain that she then told him they were waiting for the references and a proper psychological report. Based on the above, Ms. Main is of the opinion that Petitioners are not qualified to adopt special needs children who require special handling and care by people with special insight into problem children. This is not to say, however, that they might not be fit parents for adoption of children who did not have special needs. Mary Jane Rogers, a program administrator with the Department, about a year ago, received a phone call from Mrs. Rodgers complaining about the lack of progress on the application. At this point, Ms. Rogers requested Ms. Main look into the matter and respond directly to the Petitioners. Earlier in 1988, Ms. Rogers received a phone call at home from Mrs. Rodgers who wanted to know why the materials they had submitted had not been forwarded for action. When told that not all the references had been received, Mrs. Rodgers became upset and insisted that the package be sent in without references. Upon Ms. Rogers' refusal to do this, Mrs. Rodgers asked for her supervisor's name. Ms. Rogers contends that during this conversation, Mrs. Rodgers' speech was slurred, she was loud, and for a client to call a worker at home using this approach was highly unusual. This characterization is not necessarily valid, however, but it is clear that Mrs. Rodgers was under some stress and anxious concerning her application. Mr. Talone, the individual with District sign-off authority on adoption home studies at the time, first became aware of the Rodgers' situation on a staff visit to Sebring in October or November 1987. At that time, Petitioners were requesting their home study be submitted without the three required references and Mr. Talone approved its submittal. In late December 1987 or early January 1988, he received the study, but upon reviewing it, felt he could not act on it because there was only one reference. In addition, Ms. Simmons had indicated her concern about the emotional stability in the home and had requested a psychological study. Because this was unusual, he requested more information and in July 1988, received an update which referred to references which were still not received even though Petitioners had hand- delivered their requests. Generally, there is no problem getting good references in adoption situations, and the lack of response in this case sent Mr. Talone a caution signal. Ms. Simmons' elaboration on her concerns regarding Mrs. Rodgers' psychological condition convinced him to agree that an evaluation by a licensed psychologist was necessary. The reference responses which had been received dictated caution and Mr. Talone did not feel he had enough positive information to approve Petitioners for a special needs child. Consequently, he recommended that their application be denied. Petitioners do not deny the lukewarm nature of the reference responses they received, nor do they deny that many of their requests for references went unanswered. They contend that people in the military find it difficult to establish relationships with others that would support positive recommendations. This is not necessarily true. Petitioners also deny that Mrs. Rodgers made the unusual phone call to Ms. Rogers at home and offer their phone bills for the period in question as proof that no such call was made. This is not necessarily controlling, however, since there is no showing the call could not have been made from some other phone and Ms. Rogers would have no reason to fabricate a story about receipt of the call. As to the characterization of Mrs. Rodgers' speech as slurred on one occasion, they contend that Mrs. Rodgers has a speech impediment and when she is in air conditioning, she has trouble breathing and talking. This makes her talk louder and seem upset. Accepting for these purposes, however, the truth of Petitioners' assertions, there still remains substantial reason to question their suitability as adoptive parents for special needs children aliunde the characterization of her voice or speech. Petitioners claim that the case has been drawn out unnecessarily for nearly two years. They claim they misunderstood the reasons for the need for the psychological evaluation and felt it made them look bad. They are now ready to do it if required. Sergeant Rodgers claims that on a visit to the Department's Sebring office, he asked for a copy of their file and was denied it because he did not have an attorney. He was, however, allowed to thoroughly examine it in private and make copies of whatever it contained that he wanted. The Rodgers have been married for eleven years and had a child who died in infancy. Over the years they have tried to adopt through various agencies and doctors but have been unsuccessful. They have a strong emotional need for a child and the long delay is aggravating to them. If they have offended by jumping channels, it was done only to get a resolution of the problem.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the application of Earl D. and Patricia A. Rodgers to adopt special needs children be denied at this time without prejudice to the submittal of a new application with appropriate supporting documentation. RECOMMENDED this 12th day of January, 1989 at Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of January, 1989. COPIES FURNISHED: Earl D. Rodgers Patricia A. Rodgers 606 Fairview Terrace Avon Park, Florida 33825 Colleen Grace, Esquire District 6 Legal Office W. T. Edwards Facility 4000 West Buffalo Avenue 5th Floor, Room 500 Tampa, Florida 33614 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32399-0700 R. S. Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32399-0700
The Issue The issue in this case is whether Petitioner’s application to adopt a minor child should be denied because it is in the best interest of the child.
Findings Of Fact Respondent, in accordance with chapters 39, 63, and 409 Florida Statutes (2013),3/ is the agency tasked with, among other things, the responsibility to deny or approve adoption applications. The minor child was born in May 2013 and placed in Petitioner’s home in that same month.4/ At all times relevant to this case, the minor child’s biological parents were unable or unwilling to take responsibility for their child. Termination of parental rights was completed in October 2013. Petitioner is the minor child’s step-grandmother. Petitioner filed an application to adopt the minor child on November 25, 2013, listing her address as 4203 East Hanna Avenue, Tampa, Florida. A home study, which is an assessment of the potential adoptive parent’s home environment, parental capacity to support the child and the relationships with individuals both inside and outside the home of the potential adoptive parent, must be conducted prior to an adoption. On November 26, 2013, the home study was conducted at the Hanna Avenue address. Several areas of concern were noted in the home study; the home was cluttered and dirty with soiled dishes in the sink and fast food bags and wrappers throughout the home. On February 11, 2014, the AARC met to review Petitioner’s application to adopt the minor child. Petitioner was present at the AARC meeting. The following concerns were expressed during the AARC meeting: Petitioner’s monthly expenses far exceed her income; Petitioner has a criminal history and is currently on probation for the last offense, and served 10 days in jail in January 2014 without telling Respondent where she was and who was attending the minor child; Petitioner has significant health issues including congestive heart failure, diabetes, high blood pressure and a bulging disc in her back; Petitioner is legally married but has been separated from her husband for over 20 years without any knowledge of whether her husband is alive or dead; and there have been multiple abuse reports, although some indicators of abuse were not substantiated. Additionally, Petitioner has moved from the residence where the home study was conducted in November. That move to a different address invalidated the home study and another home study would have to be conducted to evaluate Petitioner’s current living situation. Petitioner’s expenses, as she detailed, far exceed her income. Petitioner receives approximately $820 a month in income, yet her living expenses include $800 rent, $150 in utility services, and $50 for water. Currently, Petitioner’s two daughters and their children (each daughter has a child) live with her in a three-bedroom home. Petitioner has her own bedroom. Each daughter has her own bedroom which is shared with her child. One daughter, (B), currently works at a hotel. Daughter B supplements Petitioner’s income to run the household. However, Daughter B has indicated she wants to move out. She has not given a specific move date. The other daughter, (M), was arrested in May 2014 for allegedly stealing electricity from Tampa Electric. The charge was dropped when Daughter M paid the electrical bill and court costs. That daughter is applying for a job but is without an income to support herself and her child at this time. Respondent does not consider income from persons other than the applicant in its review of potential adoptive parent’s application. In November 2010 Petitioner entered a plea of guilty to allegations of fraudulent use of a credit card and grand theft. The circuit court in Hillsborough County withheld adjudication of guilt, but placed Petitioner on 24 months of probation with the requirement to re-pay the money and all mandatory court costs. Petitioner has been arrested three times on violation of probation (VOP) for her failure to timely pay the costs. Petitioner’s last arrest, in January 2014 resulted in a ten-day jail term for the VOP. Although Petitioner’s adult daughters were tending to the minor child, neither Petitioner nor her daughters notified Respondent that Petitioner was not available for the minor child’s needs. Petitioner anticipates paying the remainder of the costs within the next few weeks when one of her daughters receives her income tax refund. Petitioner has significant health concerns. While at work several years ago, Petitioner sustained a back injury, a bulging disc. She is not seeking rehabilitation for her back, and is not planning on returning to work. Petitioner confirmed she has a history of high blood pressure and congestive heart failure, although she is currently feeling well. Additionally, Petitioner verified that she takes insulin four times a day to control her diabetes. Petitioner married D.B. on June 28, 1993. Petitioner has obtained the form to file for a divorce, but to date no petition for divorce has been filed by either Petitioner or D.B. Petitioner has had several reports of child abuse since 1990; however, some of those reports have been unsubstantiated. Petitioner and the minor child have lived in no less than three different homes over the past year. Petitioner submitted her adoption application while residing at one home and Respondent conducted the requisite home study at that location. However, even before the AARC meeting could take place, Petitioner had moved to another home, thus voiding the home study. Petitioner’s frequent moves does not provide a stable living environment for the minor child. Ms. Spofford has worked as a guardian ad litem (GAL) for over three years. A GAL advocates for the best interest of the child and may, at times, express different advocacy positions than the biological parents, potential adoptive parents, caregivers or, as in this case, Petitioner. GAL Spofford was appointed as the minor child’s GAL approximately three weeks after his birth, and she has visited with the minor child at least once a month since that appointment. GAL Spofford makes both announced and unannounced visits to Petitioner’s home to visit with the minor child. As a small baby, the minor child was not mobile, and GAL Spofford was not as concerned about his home environment. However, the minor child is now mobile and GAL Spofford has a lot of concerns. On one particular unannounced visit, GAL Spofford was allowed into the home by a three- or four-year old child, when no adult was present.5/ GAL Spofford picked up the minor child and discovered he had a wad of paper in his mouth, which GAL Spofford removed. In this one instance alone, the supervision of the minor child and the other young children was inadequate. Based on the totality of the circumstances, GAL Spofford believes it is in the minor child’s best interest to be adopted by another family. There is no dispute that Petitioner loves the minor child. Petitioner has cared for the minor child since his discharge from the hospital. Petitioner’s witnesses were unified in their observations of how Petitioner loved the minor child and looks out for his interest. Although Petitioner wants to adopt and care for the minor child, current circumstances do not render that a viable option. Respondent has a formidable task in ascertaining the best interest of any child. It requires a look into the future and a prediction of what will happen. Petitioner’s past indiscretions do not lend themselves to a stable and secure environment for the minor child. It is in the minor child’s best interest to be adopted by someone other than Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Families enter a final order denying Petitioner’s application to adopt the minor child. DONE AND ENTERED this 26th day of June, 2014, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of June, 2014.
