The Issue The issue in this case is whether the petitioner's request to be an adoptive or foster parent should be granted or denied.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and the entire record of this proceeding, the following findings of fact are made: The Department is the state agency responsible for licensing family foster homes pursuant to section 409.175, Florida Statutes, and for establishing minimum standards which must be met by prospective adoptive parents, pursuant to section 63.022, Florida Statutes. In September 1995, Ms. McNeal telephoned the Adoption Information Center at its advertised toll-free number, 1-800-96Adopt, to obtain information about adopting a child. She was sent a packet of materials, which included a section entitled "Adoption and the African-American Child." The Adoption Information Center also suggested she contact One Church, One Child of Florida for further information. Ms. McNeal was encouraged about her chances to adopt an African- American child when she read in the materials provided to her by the Adoption Information Center that some agencies will accept applicants for adoption who are single and who receive public assistance. Ms. McNeal is the single mother of a twelve-year-old daughter and has been on public assistance for the past two years. Ms. McNeal called One Church, One Child and told the representative that she wanted to become a foster or adoptive parent. This request was passed from One Church, One Child to Priscilla Knight, a Family Support Worker with the Department, who acts as liaison between the Department and One Church, One Child. Ms. Knight is a member of a unit within the Department responsible for recruiting and training prospective foster and adoptive parents. When she is contacted by a person who is interested in becoming a foster or adoptive parent, she invites them to an orientation meeting where more detailed information is provided. If the person is still interested, an initial visit will be made to the home of the prospective foster or adoptive parents, and, if the results of the initial visit are satisfactory, the prospective foster or adoptive parents are referred to the required Model Approach to Partnerships in Parenting ("MAPP") training. This procedure was followed in evaluating Ms. McNeal's request. The family income is one of the factors the Department looks at to evaluate the suitability of persons to become foster or adoptive parents. Ms. McNeal is not employed, and her income consists of $50.00 per month in child support for her twelve-year-old daughter and $241.00 per month in Aid to Families with Dependent Children payments. She also receives $201.00 per month in food stamps. Her monthly expenses consist of $19.00 per month for rent in government subsidized housing, $40.00 per month for electrical service, $30.00 per month for telephone service, and $300.00 per month for food, for a total of $389.00. This leaves $103.00 per month for all other expenses she and her daughter incur. Ms. McNeal's income is barely sufficient to provide for her and her daughter's stability and security, and it would not be sufficient to meet the needs of the family should she receive a foster or adoptive child.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health and Rehabilitative Services enter a final order denying the request of Tara McNeal to be accepted as a foster or adoptive parent. DONE AND ENTERED this 30th day of May 1996 in Tallahassee, Leon County, Florida. PATRICIA HART MALONO, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of May 1996.
The Issue The issue in this case is whether Petitioner should revoke Respondent's license to operate a foster home for dependent children.
Findings Of Fact Petitioner is the state agency responsible for issuing licenses to operate foster homes for dependent children. Petitioner also prosecutes license discipline proceedings. Respondent is the maternal aunt of three female children, Deanna, Angelique, and Antoinette. Respondent is a retired teacher. She worked for the state of New York before she moved to Florida. She also receives Social Security payments. Prior to 1990, Respondent's three nieces lived with their biological parents in the state of New York. New York adjudicated the children dependent and assigned the children to the foster care of Respondent. The three nieces were approximately 5, 7, an 8 years old. New York paid Respondent $2,100 a month to provide foster care for the three children. New York pays a monthly board rate of $700 per child. Petitioner agreed to supervise Respondent's foster care on behalf of New York. On March 12, 1992, Petitioner and Respondent entered into an Agreement To Provide Foster Care For Dependent Children ("Foster Care Agreement"). Each Foster Care Agreement provided, in relevant part: We will not give the child into the care or physical custody of any other person(s) . . . without the consent of a representative of the Department. * * * We will notify the Department immediately of any change in our address, . . . living arrangements, family composition, or law enforcement involvement. * * * We will comply with all requirements for a licensed foster care home as prescribed by the Department. * * * This child is placed in our home on a temporary basis and is at all times under the supervision and control 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. * * * The Department may remove the child from our home at any time but will, whenever possible, give us at least two weeks notice. Until May 2, 1995, Respondent provided foster care for her three nieces without incident. Respondent was a loving and caring foster parent while the children were young. The children regarded Respondent as their mother. On April 25, 1995, Petitioner increased Respondent's licensed capacity for the period May 2, 1995, through May 1, 1996, to five children. Petitioner assigned two Florida foster children to Respondent. Petitioner paid Respondent $592 a month to provide foster care for the two Florida children. Florida pays a monthly board rate of $296 for each child. Problems developed in the foster home due to overcrowding. Tiffany, one of the two Florida foster children, had an infant child. Tiffany did not maintain good hygiene for herself or her child. Tiffany neglected her child. The additional parenting responsibilities fell on Respondent. Petitioner reduced the overcrowding by removing the two Florida foster children. Petitioner removed Tiffany and her child on December 8, 1995, and removed the second foster care child as soon as the school year ended. Other problems persisted in the foster home separate and apart from the problem of overcrowding. The three nieces were growing up and were beginning to manifest problems from unresolved childhood issues. Each niece had unresolved issues that presented very difficult parenting problems. As the nieces grew older, Respondent did not have the parenting skills necessary to parent her three nieces. Deanna's unresolved issues are illustrative. Deanna weighed under four pounds at birth. The mother was a cocaine addict throughout the gestational period. There was some fetal distress related to withdrawal. Deanna was always irritable. She had a very low frustration tolerance. She had frequent tantrums in which she would throw, spit, and hit her siblings and Respondent. Deanna had been treated with various medications. They included Ritalin, Depakote, Dexedrine, and Clonidine. The other two nieces presented Respondent with similar parenting problems. They hit Respondent when they did not get their way, frequently lied, and stole items from home and school. The problems presented by the three nieces would have been difficult enough to deal with for the best of parents. However, Respondent practiced inappropriate parenting techniques. Respondent used excessive corporal punishment to discipline all of her foster children. She practiced humiliation tactics on her oldest niece. Respondent gave preferential treatment to the youngest niece. Respondent arbitrarily allowed the youngest niece to have privileges denied to the other nieces. Respondent routinely gave the youngest niece excessive amounts of money for nominal tasks. For example, Respondent paid the youngest niece $100 for two hours work around the house. Respondent manages her own money poorly. Her income is insufficient to cover her expenditures. She is evasive and vague about her finances. Respondent became depressed and withdrawn. She remained non-verbal with lengthy periods of silence. She stared at the wall. When counselors and case workers confronted Respondent regarding her depression, she became very angry and agitated. She retreated into denial and relied on adolescent responses to distance herself from those trying to help her and her nieces. Petitioner conducted a critical case review on June 28, 1996. Petitioner provided numerous intervention services for Respondent and her nieces from July through November, 1996. Petitioner provided counseling through The Harbor Mental Health Services ("Harbor"). Respondent and her three nieces attended group therapy at Harbor. In addition, each niece participated in individual counseling at Harbor. Petitioner provided an Intensive Crisis Counseling Program ("ICCP") for Respondent. ICCP is an intense in-home counseling program over six weeks. It is designed to prevent removal of foster children from the home. Petitioner extended the ICCP in Respondent's home for an additional six weeks. Petitioner provided psychological evaluations to determine if Respondent was suicidal or suffered from alcoholism. The evaluations found no evidence of either problem. Therapists attempted to assist the individual family members toward effective communication, establishing boundaries, reasonable consequences, and consistent discipline. The intervention services provided by Petitioner were unsuccessful. Respondent and her nieces persisted in their inappropriate behavior. Petitioner issued a provisional license to Respondent for the period August 2, 1996, through November 2, 1996. The license required weekly visits by a foster care counselor. Petitioner conducted a routine home visit on September 26, 1996. The situation had not improved. On October 4, 1996, Petitioner conducted another critical case review. At the critical case review, the foster care counselor learned from members of the ICCP team that Respondent planned to leave Florida to visit New York. On October 10, 1996, the foster care counselor telephoned Respondent. Respondent confirmed that she was leaving for New York on October 11, 1996. When the foster care counselor asked Respondent to provide the location of her three nieces and the identity of the respite caregiver during Respondent's absence, Respondent stated only that she was leaving the nieces with her mother. Respondent told the foster care counselor that if Petitioner wanted to see her nieces while Respondent was in New York, the foster care counselor should telephone Respondent's home and leave a message on Respondent's voice mail. Respondent's mother would check the messages each day and return the case worker's telephone call. Respondent's manner and tone were abrupt, cryptic, abrasive, and angry. The foster care counselor was unable to obtain any further information. Respondent terminated the telephone call. Respondent violated several requirements of each Foster Care Agreement. Respondent allowed the removal of each niece from her home by someone other than Petitioner's representatives. Respondent gave each foster child into the care or physical custody of another without the consent of Petitioner. Respondent failed to provide Petitioner with adequate notice of any change in the living arrangements or family composition of the foster children. Respondent's mother was not, and never has been, an authorized foster care parent or respite caregiver. Respondent did not consent to Respondent giving her nieces to the physical care and custody of Respondent's mother. Respondent did not give Petitioner the information needed for Petitioner to adequately supervise the foster children during Respondent's absence. Petitioner determined that it could no longer supervise Respondent's foster care on behalf of New York. Petitioner ascertained the location of the foster children. On October 17, 1996, Petitioner removed the nieces from the home of Respondent's mother. Petitioner returned the nieces to the appropriate authorities in New York. By letter dated, October 17, 1996, Petitioner notified Respondent of the action taken. The letter also notified Respondent that the foster care home was closed and that Respondent's license was being revoked.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty of violating material provisions of the Foster Care Agreement for each of her three nieces, failing to effectively supervise and safeguard her foster home, and revoking Respondent's license to operate a foster care home for dependent children. RECOMMENDED this 28th day of April, 1997, in Tallahassee, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 28th day of April, 1997. COPIES FURNISHED: Richard Doran General Counsel Department of Children and Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory D. Venz Agency Clerk Department of Children and Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Ralph McMurphy, Esquire District 13 Legal Office Department of Children and Families 1601 West Gulf Atlantic Highway Wildwood, Florida 34785 Patricia Genovese Qualified Representative 13140 Jessica Drive Spring Hill, Florida 34609 Yvonne B. Butler, Esquire 6341 Gainsboro Avenue Spring Hill, Florida 34609
The Issue The issue is whether Respondent should grant Petitioner’s application to adopt a child.
Findings Of Fact On September 12, 1996, Petitioner filed an Adoptive Home Application. Among other things, the application discloses that Petitioner is divorced, has had two children who are now 39 and 37 years old, is retired from IBM Corporation, and has never been arrested for or convicted of a felony. The application asks: “What children would you like us to consider for your family (age, sex, siblings, handicapped, etc.)?” In response, Petitioner stated: Approximately 8-10 yrs., male, capable of learning, race not important to me. Candidates would probably be abandoned and/or neglected and/or abused. In short, a child looking for a childhood and support. The application asks: “What children would you not like us to consider for your family (age, sex, siblings, handicapped, etc.)?” In responses, Petitioner stated: I would not consider a child who has ties to undesirable relatives in or near DeSoto County. I will define undesirable for you. Petitioner also submitted a Family Profile dated March 12, 1996, as part of the application process. In the profile, Petitioner stated that he was 61 years old. He supplied four persons as references. In discussing his family relationships in the profile, Petitioner denied ever feeling disappointed, frustrated, or stressed. The question asked with whom he would share various feelings. As for happiness and sadness, Petitioner stated that he would share such feelings only with himself and that he is happy most of the time because it is sunny and hot and sad only when the weather is bad. Describing his present situation, Petitioner stated in the profile that he lives on five secluded acres in a house surrounded by woods. Asked what rules of the house can sometimes be broken, Petitioner responded that all rules are made to be broken. Asked what he would do if the child became afraid of or allergic to a pet, Petitioner, displaying a sense of humor, stated: “Bang Bang (the pet of course).” Petitioner also mentioned that his mode of transportation was a motorcycle with a sidecar. Petitioner stated that he knew only one of his neighbors, whom he visited regularly. However, Petitioner’s mother lives only a mile away, and he sees her daily. When asked whether he intended to discuss his plans to adopt with his family, Petitioner declared: “I don’t intend to discuss my plans with relatives period.” When asked how important grades and school performance would be for the child, Petitioner answered: “The child should try to do the best that is possible for him. That is all that can be expected.” Responding to a question as to the characteristics of the child to be placed in his home, Petitioner stated that he would be male, 10-16 years old, capable of learning, and the remaining characteristics would not matter. In a note dated August 29, 1996, stapled to the profile, Petitioner stated: I am looking for a child who can benefit from all my knowledge and ability so that I can look back in 10 years and know that I made possible a lifetime of happiness and success that would never have otherwise been possible for him. It is I who must be adopted by the child and once adopted I promise unconditional love. By letter dated March 9, 1996, Petitioner added more material to the profile. The letter explains in detail Petitioner’s motivation in adoption. Except for an irrelevant introduction, the letter states in its entirety: Several years ago I met a little boy at his parents [sic] place of business. His parents never spoke to him in a civilized voice and when they didn’t speak to him he was ignored. But all he was being was a little boy and all he wanted was the chance and the encouragement to experience the world about him. I never once saw him do anything malicious or destructive during any of my visits. For my own part, I spent time whenever I went to that business talking to that little boy about whatever things I could think of that might interest him. He always enjoyed helping me to carry out my purchases. And then one day when he was about 9 years old he asked m[e] if I would take him for a ride on my motorcycle. At first I passed of[f] the request with “You’ve got to have your parents’ permission and you’ve got to have a helmet.” He kept after me for several months and though I didn’t have a helmet to fit him he did have his parents’ permission. About the time of his 10th birthday I acquired the needed helmet and we began taking fun trips, sportscar races, seaquarium, fishing, etc. He was very open and conversive; I learned about his problems as well as his joys. Some of the time we spent at my home playing football, getting our fishing gear ready, and working on his reading skills with the “Hooked on Phonics” program I had acquired. I was also teaching him how to use a rifle and to use it safely. He liked being at my home and told me so; his words were, “I wished I lived here.” Secretly, I wished so too, but sadly I had to deliver him to his “home” at the end of the day. His “home was a dilapidated 10x35 trailer with windows missing. I once bought him shoes to fit, 3 full sizes larger than the ones he was wearing and I pleaded with his parents to no avail to let me take him to a dentist as he was having frequent toothaches. The last time he was at my home I had to force him to leave. The very next day I went to pick him up after school to work on “Hooked on Phonics” and he wouldn’t speak to me. His mother said that he had felt uncomfortable with me the last couple of times he was with me. I didn’t sleep well for several weeks after this experience and contemplated what to do that would be best for the boy. Unfortunately, what is best and what can be done legally do not coincide. About a year has transpired [sic] since I went through this frustrating experience and then in discussing this with a friend only recently came the realization that the ingredient that caused the frustration would be eliminated in the care of foster children and parents, my prior experience providing the incentive and enthusiasm. I feel that to become a foster parent will be a major satisfaction and accomplishment in my life. My intention is to ultimately adopt a child so that the only requirement that I have is that the child placed with me must be legally free to be adopted. I would place the choice to be or not be adopted by me entirely upon the child. Emotionally I could accept his choice either pro or con but would be unwilling to see the child removed against his will. When my own natural children were growing, I had scant time to spend with them as I worked long hours. Such is no longer the case. I now have essentially unlimited time and some fair background in caring for children. I am capable of supplementing a child’s education or if necessary supplying all of it. My teaching background bears witness to this. The most difficult thing that I foresee comes from my experience with children who have lived for any period of time with “bad” parents. In some cases learned prejudice, hate, fear, or falsehoods must be erased and replaced with positive values; in others the child’s trust has been betrayed so greatly or so often that a long period of stability and solid support will be necessary to establish a loving bond. Simultaneously, the easy part will be to establish a physical environment wherein the child can begin to develope normally. My interest and abilities are split fairly evenly between the intellectual and artisan arenas. I enjoy great literature and great music and read at least two foreign languages. I also enjoy building things, a home, furniture, or a model; presently I am restoring a motorcycle. I also enjoy travelling and camping during the summer months. About a year ago I discovered what a joy it is to befriend a child, especially one who is desperately in need of help. I also discovered that I am in extremely good physical condition and though I can’t outrun a 10 year old, I won’t quit and won’[t] drop dead trying. I feel I am ready to continue what I tried to do a year [ago], this time without outside interference. On June 3, 1996, Petitioner completed the 30-hour class on Model Approach to Partnerships in Parenting. On August 29, 1996, Respondent’s adoption counselor, Ted Hanleck, met Petitioner at his home as part of a home study. Mr. Hanleck completed the home study and prepared an Adoptive Home Study report dated January 22, 1997. The report notes the home visit on August 29 and four office visits in August, October, November, and December, 1996. The Adoptive Home Study states, among other things, that Petitioner wants no contact between the birth parents and the child, but would consider contact between the child and his siblings or grandparents. Also, Petitioner would consider a child with a mild-to-moderate physical handicap and a manageable behavior problem. The report accurately states that Petitioner would take a boy of any race from 8 to 10 years old. The Adoptive Home Study notes that Petitioner’s mother is 91 years old. The report describes Petitioner’s house as solar powered and without air conditioning and a telephone, although Petitioner said he would purchase a mobile phone. The Adoptive Home Study reviews Petitioner’s childhood: his education, which includes a Bachelor of Mechanical Engineering degree that Petitioner earned at Syracuse University; his 22-year career with IBM; his employment as an instructor at Cornell University, Marist College, IBM, and G. Pierce Wood Memorial Hospital; and the dissolution of his 35-year marriage in 1992 following a seven- year separation. The Adoptive Home Study discloses that Petitioner receives annual retirement income of about $15,000 from IBM and has no debts. Petitioner promises to place any payments attributable to his adopting a child into a trust fund for the child’s college education. Petitioner lacks life and health insurance coverage. The Adoptive Home Study mentions that Petitioner’s adult daughter writes her father every month, but that he has not responded to any of her letters for several years. Petitioner’s adult son described his relationship with his father as distant. Both children stated that they would not leave their children, if they had any, with Petitioner. Petitioner explained that the children had sided with their mother following the divorce. The Adoptive Home Study reviews the references by noting that local and state law enforcement revealed no reports or charges against Petitioner. Two of the three persons listed as references, who were not relatives, were noncommittal regarding the placement of a member of their family in Petitioner’s home for care. All persons giving recommendations said that Petitioner was “conscientious, a perfectionist, strong-willed, has a sense of humor, was confident and likable.” However, it was evident that the persons providing the recommendations did not know Petitioner well. The Adoptive Home Study concludes by noting several concerns. First, Petitioner lives by himself and is self- sufficient except for one neighbor who has offered to provide transportation when needed. Second, Petitioner appears emotionally self- sufficient with a history of disassociating himself from individuals who do not accept his opinions and lifestyle, including his own children. This raises concerns as to how [Petitioner] would react to a child who, two or three years after adoption[,] developed different interests and opinions from [Petitioner’s] own. Third, Petitioner may not be willing to “help a child discover or maintain awareness of his personal history.” The report notes: “[Petitioner] has strong opinions concerning birth parents and contact with extended relatives.” The report adds: Petitioner has clearly stated that he wants to adopt a child that can learn and that has the potential to go to college. It is uncertain how [Petitioner] would respond to an adopted child that, several years after adoption, decided to drop out of school or that did not put forth effort towards academic achievement. Fourth, Petitioner would not be willing to adopt a child with certain special needs. The report states that Petitioner would take a child over eight years of age or of a minority race, but would not adopt a child with a mental, emotional, or physical learning disability or serious physical handicap. Also, Petitioner would not consider a child who had an interest in religion that needed to be continued. The Adoptive Home Study finds that these concerns and the potential for a failed adoption “seem to outweigh the strengths [Petitioner] has as an adoptive applicant. Therefore, we do not recommend that [Petitioner] be approved as an adoptive candidate.” Due to the recommendation of the Adoptive Home Study, the Adoptive Applicants Review Committee met on February 24, 1997, to review Petitioner’s application. The committee report notes that the Adoptive Home Study had found positives in Petitioner’s financial security, good health, time to devote to a child, and clear screenings as to an abuse or criminal record. The committee report acknowledges that the concerns identified by the Adoptive Home Study were Petitioner’s lack of an adequate support system; tendency to dissociate himself from those, such as his children, who do not accept his opinion; attitude toward birth families; expectations of the child and likelihood of rejecting the child if he does not live up to Petitioner’s expectations; and limited array of acceptable special needs-- namely, any race and an age of 8-12 years. The committee undertook considerable effort to develop all relevant information underlying Petitioner’s application. Each committee member decided to deny the application. The chair of the committee explained: I believe that the purpose of the Department’s adoption program is to meet the needs of the children committed to the Department and needing permanent nurturing homes. It is to be hoped that these placements will also meet the needs of families wishing to adopt. However[,] the focus of the program must always be on the needs of the child with the families as resources. Regardless of [Petitioner’s] desire to parent a child, I do not believe that he can meet the wide range of needs for the children who are waiting to be adopted. During the course of these proceedings [Petitioner] has interacted with at least nine Department employees, most of whom have many years of experience working with foster and adoptive children. Not one of them recommended him as an adoptive parent. Those people who might be presumed to have had the closest relationships with him, his own children and former wife[,] are unanimous in their feelings that he should not adopt. For these reasons[,] as well as those cited by the committee members, I concur with their recommendation. On March 31, 1997, Respondent informed Petitioner that his application to adopt was denied for several reasons. First, Petitioner’s expectations of a child were unrealistic, and Petitioner was not sufficiently flexible to meet the child’s needs if he failed to live up to Petitioner’s expectations. Second, Petitioner would undermine the placement by refusing to accept the child’s birth connections if they are unacceptable to Petitioner. Third, Petitioner’s support system lacks a viable plan for the care of the child if Petitioner could not raise the child to adulthood and lacks any significant female influence. Fourth, Petitioner displays insufficient commitment in his unwillingness to maintain relationships with persons, such as his children, whose interests and choices differ from Petitioner’s. Fifth, Petitioner is unwilling to work cooperatively with others, such as Respondent’s counselors and school personnel, to deal with the special needs of the most of the children placed by Respondent. Petitioner’s daughter, who is a divorced schoolteacher, testified that she was around 30 years old when her parents divorced, so it is unlikely that the children sided with the mother, as Petitioner asserts. Petitioner’s daughter testified that Petitioner was a good provider when she was a child and never abused the children, but never seemed interested in children when she and her brother were young. Although always stressing the importance of an education, Petitioner never paid for either child’s college expenses. Petitioner’s daughter writes her father, but he has not responded in several years. According to both of them, she would write about personal things and he would write about ideas, and he decided that he did not want to continue the correspondence because it did not interest him. Petitioner testified that he had no interest in children just five years ago, and then he met the boy described at length in his letter. In this brief relationship, Petitioner discovered a wealth of emotion, and this experience sparked Petitioner’s interest in adoption. He then initiated the adoption process that resulted in this case. Petitioner is highly individualistic and self- reliant. He rightly protested the periodic appearance, in the adoption review process, of numerous irrelevant items, such as references to his mode of transportation--motorcycles--and his professed atheism, the latter of which is relevant only to the placement of an older child who has already developed religious interests. The question is what kind of parent Petitioner would make. Petitioner could meet a child’s physical and financial needs, although the absence of medical insurance is a problem. The real questions in this case are whether Petitioner could meet the emotional and social needs of a child. The adoption application asks the applicant to explore his emotions. Petitioner did not give these questions much thought, as judged his cursory, even flippant, answers. His happiness or sadness is driven by the weather, and he denies having a wide range of other normal feelings and, thus, the need to deal with such feelings. Petitioner does not appear to be extended much emotionally or socially, except with his aged mother. He clearly has been unable to accept his daughter on her own terms. Likely, this has been a problem with his relationship with his son. Petitioner’s intense emotional bond with the neighborhood boy was accompanied by the enrichment of the boy’s life culturally, intellectually, and practically. It appears likely that Petitioner would follow the same pattern with an adoptee. In these relationships, the potential for frustration is high. Petitioner has little experience in feeling and dealing with his feelings, and his emotional naiveté ill-prepares him for handling the emotional ups and downs of the typical or, even more so, troubled adolescent boy. The likely price of Petitioner’s frustration is alienation and estrangement, which are serious injuries for the older adoptee, who has already experienced more than his share of these pains in his young life. Petitioner’s narrow self-focus would hamper his ability to help a child develop socially too. Petitioner is intolerant of the inadequacies of the bureaucracies with which he was forced to work in his relationship with the boy and his attempt to adopt a child. He is intolerant of the inadequacies of existing family members. Doubtlessly, all organizations and family members exhibit inadequacies, and learning to deal constructively with such organizations and persons may no longer be required of Petitioner, but will be required of any child he would adopt.
Recommendation It is RECOMMENDED that the Department of Children and Family Services enter a final order denying Petitioner’s application to adopt a child. DONE AND ENTERED this 26th day of September, 1997, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 26th day of September, 1997. COPIES FURNISHED: B. M. G. Post Office Box 3298 Arcadia, Florida 34265-3298 Eugenie G. Rehak District Legal Counsel Post Office Box 60085 Fort Myers, Florida 33906-0085 Gregory D. Venz, Agency Clerk Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard A. Doran, General Counsel Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
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 parties stipulated that a concise statement of the nature of the controversy is: "Petitioner revoked Respondent's license to operate as a child-placing agency under 409.175, Fla. Stat." The issues in the case are delineated with specificity in the Administrative Complaint dated February 20, 2006. Petitioner alleges that Respondent's license is revoked for the following reasons: Failure to properly close the agency as required by F.A.C. 65C-15.035. Repeated failure to provide the Department with the agency's 2004 financial audit as required by F.A.C. 65C-15.010 and failure to provide the Department with the agency's 2005 financial audit; Multiple code violations documented on February 10, 2005 in the Child Placing Agency Inspection Sheet attached hereto and incorporated herein by reference; Multiple code violations documented on September 14, 2005 in the Child Placing Agency Inspection sheet attached hereto and incorporated herein by reference; Multiple code violations documented on October 18, 2005 in the Child Placing Agency Inspection Sheet attached hereto and incorporated herein by reference; Multiple code violations documented on January 19, 2006 in the Child Placing Agency Inspection Sheet attached hereto and incorporated herein by reference; Multiple code violations documented on February 17, 2006 in the Child Placing Agency Inspection Sheet attached hereto and incorporated herein by reference; Entering into contracts with a prospective adoptive parent for the placement and adoption of a child, taking the prospective adoptive parent's money and not placing a child in their home for adoption, and, thereafter failing to return money paid for fees, costs and expenses advanced by the prospective adoptive parent which were refundable. In short, the agency charged the prospective adoptive parent for fees, costs and expenses, and, when the agency failed to deliver on the contract it did not return the advanced money required to be refunded. This is in violation of sections 63.097 and/or 409.175, Florida Statutes, and F.A.C. 65C-15.010; Entering into contracts with a prospective adoptive parent for the placement and adoption of a child, taking the prospective adoptive parent's money, placing a child in their home for adoption, and, thereafter failing to return money advanced to pay for fees, costs and expenses associated with the adoption which were not expended. In short, the agency charged the prospective adoptive parent for fees, costs and expenses, and, when the funds were not actually needed to cover the allowable fees, costs or expenses the agency failed return the advanced money. This is in violation of sections 63.097 and/or 409.175, Florida Statutes, and F.A.C. 65C-15.010. In its response to the Administrative Complaint, Respondent, Homecoming Adoptions, Inc., has denied each of the nine listed reasons for Petitioner's decision to revoke its license.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of fact are made: Respondent is a Florida non-profit corporation, doing business in Orlando, Florida. It is co-owned by Kurt Alexander and Kendall Rigdon; both are officers of the corporation and are attorneys licensed to practice law in the State of Florida. On March 2, 2005, Petitioner issued a Certificate of License to Respondent to operate a child-placing agency. The license was to continue in force for one year from the date of issue unless renewed, withdrawn or revoked for cause. On February 15, 2006, Kurt Alexander advised Petitioner on behalf of Respondent that "we are withdrawing our application for licensure renewal at this time." During relevant times, to wit, March 2, 2005, to February 15, 2006, Respondent entered into contracts (titled "adoptive agency agreement") with individuals seeking to adopt children wherein Respondent undertook to "assist the Adoptive Parent in commencing and completing the adoption." The contracts contemplate the Adoptive Parent traveling "to the foreign country to complete the adoption process and accept physical custody of the child." Evidence was offered that Respondent assisted with adoptions which took place in Russia, China, Guatemala, El Salvador, and other countries. In each instance, the formality of the adoption was effected by individuals or agencies located in the foreign country. Although a licensed child-placing agency, Respondent had never placed a child for adoption within or without the State of Florida. Respondent became a licensed child-placing agency in an abundance of caution in the event it had to undertake a Florida adoption. Respondent never had physical custody of any child on either a temporary or permanent basis. On February 17, 2006, Kurt Alexander again advised Petitioner that Respondent "does not wish to renew or retain its license as a child-placing agency in Florida." He further advised that [I]n an abundance of caution and in compliance with 65C-15.035, Homecoming will do the following Transfer all children to the Dept. or another licensed child placement agency. There are none. Transfer responsibility for all children in temporary placement, etc. There are none. Transfer services to all other clients. Will do. On or about February 17, 2006, all active and closed files of Respondent, the licensed child-placing agency, were transferred to the law firm of Rigdon, Alexander & Rigdon, LLP. Thereafter, Kurt Alexander, in his capacity as an attorney with that firm, requested that Petitioner refrain from examining the files that had previously been the property of Respondent, as they were now law firm property and "confidential." On September 14, 2005; October 18, 2005; January 19, 2006; and February 17, 2006, Petitioner conducted annual and complaint inspections of Respondent's files. Employee personnel files lacked applications, references, local/FDLE/FBI criminal background checks, degree verifications, and other required information. Some adoption files lacked completed home studies, character references, background studies, criminal background checks, and abuse registry checks. In addition, a required financial audit was not available. Respondent's executive director was terminated in August 2005; Petitioner was not notified of his termination. No evidence was offered by Petitioner regarding the allegations of paragraphs 8 and 9 of the Administrative Complaint.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order revoking the license of Respondent, Homecoming Adoptions, Inc., effective February 20, 2006. DONE AND ENTERED this 6th day of September, 2006, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of September, 2006. COPIES FURNISHED: James E. Taylor, Esquire 126 East Jefferson Street Orlando, Florida 32801 T. Shane DeBoard, Esquire Department of Children and Family Services 400 West Robinson Street, Suite S-1114 Orlando, Florida 32801 Gregory Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John Copeland, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Luci D. Hadi, Secretary Department of Children and Family Services Building 1, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue in this case is whether Respondents' child- placing agency license should be revoked.
Findings Of Fact The Department is the state agency responsible for licensing and monitoring child-placing agencies. The Center, whose address is 1602 East Third Avenue, Tampa, Florida, received its initial child-placing agency license from DCF in 2004. The license was renewed October 12, 2006. Susan Morgan has been the director of the Center since its inception. DCF contracts with HKI to provide community-based child welfare services in Hillsborough County. HKI contracts with Camelot Community Care for the performance of adoption related services. DCF received complaints about Respondent and issued an Administrative Complaint with the following categories of violations: A foster parent home study was finalized after only one home visit lasting half an hour. The home study document indicates four home consultations for that client. Files relating to clients were left in an unsecured environment at the Center with unauthorized persons having access to them. An adoptive home study was completed without a visit being made to the prospective adoptive parents' home. Respondent lost or misplaced paperwork from clients which contained confidential information. Respondent failed to timely provide foster parents with a copy of their foster parent licenses once the licenses were issued. Regarding the first violation, two home studies are required to finalize a foster parent home study. The subject family was provided a template for filling in information about their home. This is a reasonable means of gathering information about a family. The family was directed to fill in the template using the third person format (so that anyone reading the document might infer that someone other than the family had written the information). Morgan did not visit the home at issue, but did send her associate (Wendy Martinez) who conducted a brief 30 to 40-minute visit. The home study was signed by Morgan and dated March 13, 2007, some four or five weeks prior to Martinez's visit. The home study included the following table concerning visits and consultations: Contact Information Inquiry Date 01/05/06 Inquiry Home Visit 02/10/06 Initial Home Consultation 03/15/06 MAPP Graduation 02/26/06 2nd Home Consultation 04/02/06 Final Home Consultation 03/08/07 Date Application Signed 03/08/07 The table seems to indicate a single home visit on February 10, 2006, and three home "consultations" on later dates. Morgan says the date of the home visit is a typographical error; it should say April 18, 2006, i.e., the date of Martinez's visit. Morgan admits only one home visit was made, but says the home study was not final. Her testimony on that topic is not credible. The home study appears complete, has references to several home visits and/or consultations, and is signed by Morgan subsequent to the dates appearing in the aforementioned table. DCF considers the references to home consultations to be tantamount to home visits. Inasmuch as at least two home visits are required for a foster parent home study, this interpretation makes sense.1 A discussion of the differences, if any, between home visits and home studies follows. There was much testimony at the final hearing as to whether a home visit and a home study are the same thing. Each of the experienced social workers and managers who testified (other than Morgan) seemed to believe the two were synonymous. Even the two witnesses called by Respondent to address the issue opined that home visit and home consultation mean essentially the same thing. Respondent introduced definitions from The Social Worker's Dictionary, but there is nothing in those definitions to suggest they apply to foster care or adoption situations. None of the social workers who testified indicated they would rely on that source to define home visits versus consultations. The home study at issue appears to suggest that four home visits/consultations were conducted, when in fact only one (of the required two) was done. The second category of rule violation concerns unsecured client records. Files belonging to clients of child- placing agencies are extremely confidential in nature. Respondent moved into a new office in the Ybor City section of Tampa during September 2006. The office was shared with a company that specializes in estimating construction project costs. The estimating company had two employees, a receptionist and the owner of the company. The office was set up so that the receptionist was in the same room as Respondent's employee, Martinez. Morgan had a separate office for herself, and the owner of the estimating company had an office upstairs. The Ybor City office had been inspected by DCF in October 2006 and was found to be sufficient for its intended purposes. A client, Angela Ferguson, visited the Center in early April 2007. Morgan was not present when Ferguson arrived, but Martinez was there, as were employees from the other business. Martinez called Morgan on the client's behalf so that Morgan could come to the office. While waiting for Morgan, the client noticed 50 to 60 file folders lying around the office. Some of the files belonged to other clients whose names were visible to Ferguson. Some of the files were probably forms and other non- confidential documents. The client files were not locked in a cabinet or otherwise protected from persons using Respondent's office. On or about May 2, 2007, another client, Jennifer Moody, also visited the Center to get her file (so that she could transfer to another adoption agency). She walked into the office and found the estimating company's receptionist, but no one from the Center was there. The receptionist called Morgan because Moody wanted to wait for her to arrive. While waiting, Moody observed files lying around the office in plain view. When Ferguson expressed her concerns to DCF about the way files were being handled, a licensing specialist was sent out to investigate. DCF employee Melissa Leggett made an unannounced visit to the Center on May 16, 2007, at 10:00 in the morning. Martinez was in the office when Leggett arrived; Martinez called Morgan for Leggett, and Morgan arrived shortly thereafter. Leggett noticed confidential files lying around the office, including files for some clients who she personally knew. Leggett advised Morgan that the files would have to be protected by placing them in a locked file cabinet or locked room. Morgan agreed to remedy the situation and seems to have done so by the date of the final hearing. Files are now being protected from public scrutiny. Each employee of the estimating company has signed a Confidentiality Office Policy agreeing to keep all records of the Center confidential. The third category of violation concerned an adoptive home study for Moody (the same client who had visited the Center). The home study for this family was also sent in blank template form with instructions to fill it out using the third person. Moody filled out the form and sent it back to Morgan. In April 2006, Moody and her husband were scheduled to attend a meeting with prospective adoptee children at Splitsville, a Tampa bowling alley. In order to attend such meetings, prospective adoptive parents must have a home study completed in advance. This serves the purpose of making sure that such parents actually qualify as adoptive parents before they are exposed to the children. The home study for Moody and her husband was finished by Morgan in time for the Moodys to attend the Splitsville function. Although several home visits were scheduled, each of them was cancelled due to various circumstances. No home visit was ever made. However, the home study was completed and signed by Morgan with a recommendation that the family be approved to adopt. The recommendation section of the home study included as its basis: "Based on MAPP training, personal interviews, home consultations . . .". The home study contains a thorough description of the home, including the pool and yard, presumably based on details provided by the Moodys. Moody decided to terminate her relationship with Morgan and the Center after not hearing from Morgan during the period of July through November. As stated earlier herein, Moody picked up her file, which included the signed home study, from the Center. Morgan maintains the home study was still a "work in progress" at that time. However, it had already been signed and was dated April 18, 2006. (Moody was scheduled to attend the Splitsville event on April 22, 2007, and would have needed a completed home study in order to attend.) By Morgan's own admission, she was never in the home of Moody and did not "effectively or efficiently manage" that client's case. It was, as Morgan admitted, wrong to sign the home study without having visited the home. It appears the home study was finished so that the family could attend the MAPP event. The next category of violation had to do with lost or misplaced paperwork. A child placing agency must protect all information provided to it by clients so that confidentiality is maintained. LaClair and her husband submitted a large packet of information to Morgan as part of their attempt to adopt a child through the Center. The information was lost or misplaced by the Center on at least two (but possibly three) occasions. The submitted information contained extremely confidential information, including: marriage licenses, divorce decrees, birth certificates, social security numbers, military identification numbers, and insurance information. The last category of violation concerned failure by Respondent to timely provide licenses to approved foster parents. One of Respondent's clients, Barry Plesch, indicated a long interval between verbal approval and receipt of his paper license. However, he could not quantify the number of times nor specifically remember what dates he may have called Respondent to ask about the license. Another client, Brad Farber, made numerous requests for his license. When he expressed an urgent need for it, the license was produced forthwith. On May 17, 2007, Morgan met with representatives of HKI to discuss the Moody home study and the situation relating to confidential records. At that time, Morgan admitted to falsifying the Moody home study. Morgan acknowledged the gravity and severity of that mistake. She did explain that her office was undergoing reorganization at the time of Leggett's visit, which was the reason so many files were lying around the office.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Children and Family Services upholding the revocation of Respondent's child-placing agency license. DONE AND ENTERED this 29th day of November, 2007, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of November, 2007.
The Issue The issue for determination is whether Petitioner's foster parent application for adoption of the minor child, S. J., should be granted.
Findings Of Fact S.J. was abandoned at birth. Moses and Juanita Pitchford served as foster parents of the child from the age of two days until March 30, 1998, when the child was over two years old. S.J. was observed by several of Respondent's employees as not behaving like other children her age. She had a flat effect, not laughing, playing or verbalizing as other children who visited Respondent's offices did. Subsequent evaluations of the child established that S.J. was developmentally delayed in speech, physical, and cognitive skills. S.J. was then referred to Easter Seals for services to assist her in the speech, physical, and cognitive skills areas. The Pitchfords' care had never been criticized in any of the Respondent's home evaluation forms completed by Gwen Tennant, the home care counselor employed by Respondent. Only when Juanita Pitchford applied to adopt S.J. did Tennant assert that Juanita Pitchford was not providing adequate care for the child. Tennant's concern was based on the fact that S.J. was not receiving the maximum exposure to an Easter Seals program for which she had qualified. The Pitchfords were never formally informed of this or any other deficiency. The evidence establishes that the Pitchfords presented S.J. at the program four days per week out of the total five days for which she was eligible. Following Respondent's denial by letter dated April 13, 1998, of Petitioner's foster parent application for adoption, Respondent has continued to place foster children, including infants, in the Pitchford home. The rights of the child's biological parents were terminated by court order dated June 17, 1997, due to their abandonment of the child. The court noted in its order that: Testimony adduced revealed that the child can and has formed a significant relationship with the parental substitute as has been established in her current foster care placement. The foster parents are the only parents she has ever known. The court's order also stated: [T]he child is currently being given excellent care by foster parents who love and care for [S.J.], and consider [S.J.] to be their child. On March 30, 1998, S.J. was removed to the home of Betty Allen, another foster parent. Allen is not married, cares for six other foster children under the age of six years, and works at a full-time job outside the home. Consequently, S.J. is delivered to day care on a regular basis for five days each week. During four of those days, she is later taken to the Easter Seals program by day care personnel for four and one-half hours. Allen cares for the foster children in her home from approximately 5:30 p.m. until 8:30 p.m. in the evening. She drops the children at day care before 8:00 a.m. each day. In contrast, Petitioner is not employed outside the home, remains there throughout the day, and is able to provide intense daily interaction with S.J.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered approving the application of Petitioner. DONE AND ENTERED this 22nd day of September, 1998, in Tallahassee, Leon County, Florida. DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of September, 1998. COPIES FURNISHED: Roger L. D. Williams, Esquire Department of Children and Family Services Post Office Box 2417 Jacksonville, Florida 32231-0083 James C. Cumbie, Esquire One Independent Drive, Suite 3204 Jacksonville, Florida 32202 Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John S. Slye, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact The Respondents operated a "therapeutic foster home" in Lee County, North Fort Myers, Florida. A therapeutic foster care home such as this is licensed to accept and care for emotionally disturbed children such as the 9- year-old girl, T.P., involved in this case and, as such, has a mental health technician from the Department available for consultation should such assistance be needed. The Petitioner is an agency of the State of Florida charged, as pertinent hereto, with administration of the foster care program mandated by Chapter 409, Florida Statutes, and the above-cited chapter of the Florida Administrative Code. The child involved in this dispute, "T.P.", is a 9-year-old girl who has been diagnosed as emotionally disturbed. The Respondents were aware that she was an emotionally disturbed child when she was placed in their home with one other foster child and were also aware that theirs was a licensed therapeutic foster home with a mental health technician available for consultation. They failed to make use of the services of that technician in dealing with the child's problem involving enuresis and ecopresis. This child's medical problem, involving incontinence of bowel and bladder, is related to the child's emotional disturbance. Because of the nature of this problem and its psychological ramifications, it is even more critical than with ordinary children that slapping or hitting as a punishment for bed- wetting or soiling of clothes or bedding should be avoided. If the child is so punished for incontinence, then the child's guilt feelings or feelings of inadequacy for having "accidentally" soiled bedding or clothes is greatly aggravated. On February 10, 1982, the Respondent, Russell Ostrander, administered corporal punishment to the child T.P. on two occasions, leaving multiple black and blue marks or bruises on the buttocks and thighs of this child "because she was messing in her britches." The child, either later that day or one or two days thereafter, visited with her natural mother who observed the bruises and reported the matter to Mrs. Parker, the Petitioner's first witness, who is a "district intake counselor." Mrs. Parker, and/or the other HRS personnel testifying for the Petitioner, felt that an instance of child abuse had occurred and removed the child from the foster home. The despondent admitted spanking the child on several occasions, but did not believe he could have caused the bruises shown in Exhibits 1 and 2. The Respondents admitted however that the child was spanked as punishment for "messing in her britches."
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the candor and demeanor of the witnesses, the evidence in the record, it is therefore RECOMMENDED: That the license of Janet and Russell Ostrander to operate a foster home be revoked. DONE and ENTERED this 12th day of May, 1983, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of May, 1983. COPIES FURNISHED: Anthony N. DeLuccia, Esquire District Legal Counsel Post Office Box 06085 Fort Myers, Florida 33906 Russell and Janet Ostrander Rt. 2, Box 382 Ruden Road North Fort Myers, Florida 33903 David H. Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32301
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 Whether the Petitioners' application for a license to provide foster home care for dependent children should be approved or denied.
Findings Of Fact Petitioners applied for licensure from Respondent as a Family Foster Home in 1995; the application was subsequently amended to a Therapeutic Foster Home. Respondent began the preparation of the Family Portfolio and Petitioners began Pre-Service Training. Petitioners attended and completed the required 21 hours of pre-service training for prospective foster family parents, called Group Preparation and Selection, GPS-MAPP. on June 12, 1995. Petitioner Carmen Delvalle also attended and completed a 40 hour pre- service training for prospective medical foster parents. During this time, in anticipation of being licensed, Petitioners made modifications to their home and purchased furniture that would accommodate the placement of foster children. Respondent, in preparing the Petitioners' Family Portfolio, determined that Petitioners had previously been licensed in Westchester County, New York, as foster parents from May 1987 through December 1988. The inquiry with the county Foster Home Resource Unit revealed that Petitioners' home was closed by mutual decision between Petitioners and the county Department of Social Services. The Department would not recommend that Petitioners be relicensed based on the appearance that Mrs. Delvalle was overwhelmed by the needs of foster children, which resulted in frequent relocation of children placed in her care, and appeared to be unable to understand and cope with the needs of typical foster children. Petitioner Carmen Delvalle testified that Petitioners' termination as foster parents in New York was not due to being overwhelmed by the needs of the children. Rather, it was due to the fact that Petitioners were housed in a walk-up apartment and their neighbors were constantly complaining about the noise the children would make. In addition, they received very little support and training from the Department of Social Services, and the Department was constantly placing 5 and 6 children in her home when they were only licensed to care for three children at a time. Petitioners now feel that they are better prepared to serve as foster parents because they both love children; their own children are now adults and they can give a lot of time and attention to any foster children placed in their home; they are better qualified and trained now, and can deal with the special demands of caring for foster children and medically challenged foster children. The Respondent's Senior Program Analyst prepared the Family Portfolio for the Petitioners, which included two in-home interviews. She was also Petitioners' MAPP trainer. Her evaluation of the Petitioners' application was that they did not meet the standards of Respondent, as set forth in Chapter 10M- 6, Florida Administrative Code, because of her concern that Petitioners could not cope with the stresses of being a foster parent seven days a week, twenty- four hours a day. Respondent's Licensing Administrator Marlene Richmond reviewed the completed Family Portfolio pertaining to the Petitioners and called for a staffing review of their file. She also interviewed Petitioner and determined that, although sincere, Petitioners did not exhibit an understanding of the training they received. They also could not articulate how they would respond to the pressures they would be under once a foster child was placed in their home. In her opinion, Petitioners did not meet the standards. Petitioners are caring, sincere people who wish to offer themselves and their home for the care of children in need of foster care. Petitioners' house meets the physical standards set out by Respondent, and the Petitioners have completed the required pre-service training. However, Petitioners have not articulated an understanding or exhibited the capability to take on the "role" to be successful foster parents. Petitioners do not meet the standards for licensure as foster home or a medical foster home.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Respondent enter a final order DENYING Petitioners' application for licensure as a foster home for dependent children. DONE and ENTERED this 31st day of May, 1996, in Tallahassee, Florida. DANIEL M. KILBRIDE, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of May, 1996. COPIES FURNISHED: Antonio Delvalle pro se Carmen Delvalle pro se 7933 Toler Court Orlando, Florida 32822 Laurie A. Lashomb, Esquire Department of Health and Rehabilitative Services 400 West Robinson Street, Suite S-827 Orlando, Florida 32801 Gregory D. Venz, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard Doran, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
