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
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: The Department is a state government licensing and regulatory agency. At all times material to the instant case, Petitioner and her husband, Keith Sterling, were licensed to operate a family foster home at their residence in Palm Beach County, Florida. On September 1, 1994, as part of the licensing process, the Sterlings signed an "Agreement to Provide Substitute Care for Dependent Children" (hereinafter referred to as the "Agreement"). In so doing, they agreed that they would, as licensed foster parents, among other things, "comply with all requirements for a licensed substitute care home as prescribed by the [D]epartment" and, "whenever possible, give the [D]epartment at least two weeks notice," if they wanted the Department to "remove a child from [their] home." In the spring of 1995, the Sterlings, on a fairly regular basis, "returned" foster children to the Department only a day or two after the children had been placed in their home without giving the Department the "two weeks notice" required by the Agreement. The Sterlings' actions created a further disruption in the lives of these foster children and ran counter to the Department's goal of providing foster children with a relatively "stable setting" until they are adopted or reunited with their birth family. Jo Ann Weisiger, a foster care licensing counselor working in the Department's District 9 foster care licensing and adoption office, visited the Sterlings' home in April of 1995 and expressed the Department's concerns about the Sterlings' practice of "returning" recently placed foster children to the Department. After Weisiger's visit, the practice continued. Weisiger therefore paid another visit to the Sterlings' home on May 15, 1995, to discuss the matter with the Sterlings. During Weisiger's May 15, 1995, visit, Petitioner requested that the Department not place any foster children in her home for three months. She explained that she needed "a break due to her health." The Department complied with Petitioner's request. On September 11, 1995, Weisiger telephoned the Sterlings' residence to find out from Petitioner whether she and her husband wanted to renew their foster family home license (which was due to expire on October 31, 1995). Petitioner was not at home. Weisiger therefore left a message to have Petitioner return the telephone call. The following morning (September 12, 1995), Weisiger received a telephone call from Petitioner. Petitioner told Weisiger that she and her husband wanted to renew their foster family home license, but she expressed an unwillingness to comply with Weisiger's request that she authorize the release of information and records concerning her medical condition. Weisiger advised Petitioner that the Department needed to have such medical information and records in order to determine whether to renew Petitioner's and her husband's license. Weisiger followed up her September 12, 1995, telephone conversation with Petitioner by sending to Petitioner, on September 13, 1995, a letter, which read as follows: Pursuant to your request in June [sic] 1995, to remove the foster children due to your health concerns and personal reasons, we are requesting that you sign a medical release. We will need to contact your physician to obtain a professional opinion on your capacity to parent and meet the needs of our children. We are unable to contact a physician without your permission and without this information, we will not be able to evaluate your home for relicensing. We are enclosing a medical release for your signature. Please return this at your earliest convenience in the enclosed envelope, as your license expires on 10/31/95. The "medical release" that Weisiger sent along with the letter "for [Petitioner's] signature" was the following "Authorization for Release of Health and Medical Information for Prospective Foster and Adoptive Parents" form (hereinafter referred to as the "Medical Release Form") that Weisiger's office uses in its efforts to obtain the necessary information to ascertain whether applicants seeking to become or remain foster or adoptive parents are able to care for children: I hereby request and Authorize (Name of Person) Health [and] Rehabilitative Services 1784 N. Congress Ave., Suite 102 West Palm Beach, FL 33409 To obtain from: (Name of Person or Agency Holding the Information) Address: PHYSICIANS: Please provide complete information The following: All Medical Information, Reports, and Records, including diagnoses, subsequent courses of treatment, and prognoses pertaining to current and future physical and mental health status. All Medical Information, Reports and Records pertaining to health history during the past two years. From the medical record of : (Print or type name of client [and] birth date) For the purpose of assessing the health of the prospective caretaker as it relates to the applicant's ability to provide long-term care of a child/children, including economic support. I understand that my signature authorizes full disclosure of my medical and health condition and thereby, includes HIV test results. All information I hereby authorize to be obtained from this agency will be held strictly confidential and cannot be released by the recipient without my written consent, except for the purpose of judicial review in adoption proceedings. I understand that I may withdraw my consent at any time, but to do so will stop further consideration of myself as an adoptive or foster parent. Date Signature of Applicant USE THIS SPACE ONLY IF APPLICANT WITHDRAWS CONSENT Date consent Signature of Applicant revoked by applicant On September 15, 1995, Petitioner telephoned Weisiger and informed Weisiger that she was not going to sign the Medical Release Form Weisiger had sent her inasmuch as, in her opinion, her "health was none of [the Department's] business." As of the date of the final hearing in this case, Petitioner had not signed the Medical Release Form. She did produce at the final hearing, a letter from her gynecologist, Stephen H. Livingston, M.D., dated October 13, 1995, which read as follows:: Peggy Sterling has been under my care since April 24, 1995. On April 27, 1995, she had a vaginal hysterectomy. She has been cleared to return to work. While Dr. Livingston's letter provides some information regarding Petitioner's health, the information is insufficient to enable the Department to determine whether Petitioner has any health-related problems that would impair her ability to care for, or would otherwise be injurious to, foster children placed in her and her husband's home. On October 31, 1995, the Department "closed" the Sterlings' family foster home "due to [the Department's] inability to determine capability of [the] foster mother [Petitioner] to parent, due to her recent physical problems." By letter dated November 2, 1995, the Department notified the Sterlings that "[s]ince [it had] failed to receive the Authorization for Medical Release [it had] requested from [Petitioner] several weeks [prior thereto], [the Sterlings'] Foster Home license expired on 10/31/95."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department enter a final order denying Petitioner's and her husband's application for the renewal of their family foster home license, without prejudice to Petitioner and her husband applying for a new license if, in conjunction therewith, they take the necessary measures to "share [Petitioner's] health history" with the Department, as required by Rule 10M- 6.025(8), Florida Administrative Code. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 29th day of March, 1996. STUART M. LERNER, 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 29th day of March, 1996. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 95-5974 The following are the Hearing Officer's specific rulings on the findings of facts proposed by the Department in its proposed recommended order: 1. Rejected because it lacks sufficient evidentiary/record support. 2-3. Accepted as true and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order. First sentence: Accepted as true and incorporated in substance; Second sentence: Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer. First sentence: Rejected as a finding of fact because it is more in the nature of a statement of the law than a finding of fact; Second and third sentences: Accepted as true and incorporated in substance. Accepted as true and incorporated in substance. Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer. First sentence: Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer; Second sentence: To the extent that this proposed finding states that Petitioner told Weisiger "that she was not going to sign the authorization to release any of her medical records to Dept. HRS," it has been accepted as true and incorporated in substance. Otherwise, it has not been incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer; Third sentence: Accepted as true and incorporated in substance. To the extent that this proposed finding states that, during their September 15, 1995, telephone conversation, "Petitioner again refused to sign the authorization to release her medical records to the Dept. HRS," it has been accepted as true and incorporated in substance. Otherwise, it has not been incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer. Accepted as true and incorporated in substance. Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer. COPIES FURNISHED: Peggy Sterling 1626 West 17th Street Riviera Beach, Florida 33404 Karen M. Miller, Esquire District Legal Counsel Department of Health and Rehabilitative Services 111 South Sapodilla Avenue West Palm Beach, Florida 33401 Richard Doran, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Sandy Coulter, Acting Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue in this case is whether HRS should select the Petitioners as the adoptive parents of M. C.
Findings Of Fact The Petitioners, Rosa and Edwin Wise, live in Bradenton, Florida. They have been married since 1986. They have a strong and sharing marriage relationship; each considers the other not only spouse but best friend. They have been HRS-licensed foster parents since approximately 1992. Both are in good health. The Wises have experience foster-parenting children with "special needs." For approximately 18 months to two years, they were the foster parents of two African-American siblings. The older boy was nine months old when the Wises became his foster parents; the younger girl was just three months old when the Wises became her foster parents. The girl was cocaine-dependent at birth and had developmental delays as a result. Happily, not only were the Wises very successful foster parents for the children but the family was able to be reunified successfully. Today, some two years after reunification, the Wises continue to have a wonderful relationship with the children and their mother, and children's mother continues to be grateful to the Wises for what they have done and continue to do for her and her children. Since the Wises had notified HRS that they would be happy to foster parent one or two "special needs" children again, HRS contacted them in early July, 1995, to ask if they would be foster parents for a high risk, cocaine-dependent African- American newborn girl, M. C. The Wises readily agreed. Rosa went to see the infant in the hospital the next day, and they continued to visit daily during the infant's week-long hospital stay. They began acting as the child's foster parents as soon as the baby was discharged from the hospital. A warm and loving relationship quickly blossomed between the Wises and the infant, and the Wises soon expressed a desire to adopt the child if parental rights were terminated-- unfortunately, a probable outcome in this case. (The infant's mother was addicted to cocaine, had abandoned the child at the hospital after birth, and gave no indication of having any desire or ability to mother the child.) M. C. had older siblings, but all but one of them were in the full-time care and custody of family members who were unable to care for any more full-time. One brother was in the care and custody of another foster parent, who had expressed a desire to adopt him. It was agreed between HRS and the two sets of foster parents that it was not especially desirable for the infant and her brother to be adopted as a sibling group. Due to alleged "confidential information pertaining to another child," HRS refused to disclose to the Petitioners the entire contents of the Referral for Permanency Staffing form signed by the Wises on August 9, 1995, and the Petitioners did not further pursue disclosure of the information. But the evidence is clear that the Wises consistently expressed to HRS their desire to adopt M. C. (and, if necessary, her brother) if parental rights were terminated. HRS staff urged them to be patient in awaiting termination of parental rights, a prerequisite to initiation of the adoption process. A staffing conference was held on August 8, 1995, in the matter of the children. Participating were the Wises, their foster care counselor, the adoption counselor, the adoption counselor's acting supervisor, the program specialist, and others. The evidence was that, as a result of the staffing conference, the staffing committee approved a plan to expedite termination of parental rights. The committee specified the need for a "complete developmental evaluation" by August 25, 1995. The evidence was not clear what a "complete developmental evaluation" entails, or whether one was completed. No HRS employee who would have knowledge of exactly how HRS initially went about exploring the suitability of the Wises to adopt M. C. was available to testify at final hearing, and the Petitioners were not able to prove those details. However, the evidence was clear that, by approximately September 9, 1995, the program specialist involved in the matter expressed to the Wises his "concerns" about the Wises. When they asked him what the concerns were, he answered vaguely that they were "cultural." When pressed, he declined to be more specific but instead referred the Wises to the adoption counselor. The Wises suspected that the "concern" was that the Wises are Americans of European ancestry. HRS did have available at final hearing its "One Church One Child Coordinator," 1/ who testified that in approximately late September or early October, 1995 (she also could not specify when, and the Petitioners could not prove exactly when), she received a telephone contact from within HRS asking her for the names and home studies of qualified African-American prospective adoptive parents who might be interested in adopting M. C. The HRS One Church One Child Coordinator reviewed the information available to her and provided several names and home studies to the adoption counselor working on the M. C. adoption and the adoption counselor's acting supervisor. From the names and home studies, the three HRS workers chose three prospective adoptive parents for consideration along with the Wises. On or about October 11, 1995, HRS's adoption and related services (ARS) Children and Family (C&F) senior counselor and supervisor wrote the program specialist an Inter-Office Memorandum recommending that the Petitioners "be approved for adoption for one or two children" and noting that they "indicated, they would like to have a sibling group of two of any race." 2/ In addition, by this time bonds had formed between M. C. and the Wises that were as strong as any a three to four month old could have. Despite the October 11, 1995, memo, an HRS meeting was held some time before the end of October, 1995 (the HRS witness again could not specify the date), among the One Church One Child Coordinator, the adoption counselor, the adoption counselor's acting supervisor, an operation program administrator, a district program manager, an HRS attorney and perhaps others for the purpose of selecting adoptive parents for M. C. from among four sets of prospective adoptive parents--the Wises and the three chosen from among the One Church One Child names and home studies. On or about October 31, 1995, Rosa Wise was notified by telephone that HRS had chosen one of the others, a single African-American female, to adopt M. C. The Wises were required to allow the person chosen to have overnight visitation with the child. There is no evidence as to whether the HRS staff decision was reviewed by the HRS district administrator,3 but HRS staff notified the Wises on November 15, 1995, that HRS had chosen one of the others to adopt M. C. Staff also notified the Wises that the adoptive parent selected by HRS staff was supposed to have overnight visitation from November 17-20 and again from November 22-27, 1995, with placement to be made the next day. By letter from HRS's attorney dated November 17, 1995, the Wises and their attorney were given notice "of HRS' intention to exercise final adoptive placement in favor of another family." The child was not returned to the Wises on November 21, 1995, as planned.4 Then, instead of having the child returned to the Wises on November 28, 1995, the parties went before the circuit judge in the dependency case involving M. C., and the judge entered an order authorizing the child to remain in the care and custody of the prospective adoptive parent chosen by HRS pending the resolution of Section 120.57 administrative proceedings. The Wises did not believe that HRS would allow them visitation or other contact with M. C. during the pendency of these proceedings, and they did not pursue it. They have not seen the child since approximately November 16, 1995. The evidence indicated that, by the time of the final hearing, M. C. had grown at least as attached to her new foster mother as she was to the Wises. Based on the evidence, there is no reason not to believe that the Wises would have been, and still would be, warm and loving parents who would provide M. C. with a home in which the child would thrive. They clearly were "suitable" adoptive parents. HRS did not allow the adoption to proceed only because of "cultural concerns"--i.e., the Wises were not African- American. It was felt by HRS staff--in particular, the program specialist--that these "cultural concerns" could override any foster parent preference in favor of the Wises and that inquiry should be made as to whether there were African-American prospective adoptive parents who could adopt M. C. After the African-American prospective adoptive parents entered the picture, HRS staff decided what it considered to be the best interest of the child, taking into account the "cultural" considerations. Essentially, as between the Wises and the person ultimately chosen to be the adoptive parent, HRS staff decided that the latter would be better able to "maintain the child's culture and give the child emotional support," although the Wises clearly were committed to value, respect, appreciate, and educate the child regarding her racial and ethnic background and to permit the child the opportunity to know and appreciate her ethnic and racial heritage. On balance, the other factors cited by HRS actually were neutral at best; some seemed bogus.5 On the evidence presented at final hearing, it is difficult to say whether HRS's choice against the Wises was, on balance, against the best interest of the child. There were factors in favor of both the Wises and in favor of the person chosen by HRS. Perhaps, given HRS's rules, the choice HRS made at that time was wrong. However, the Wises clearly were unable to prove that, at this time, it is in the best interest of the child to require her to be adopted by the Wises instead of the foster mother she has had for the past seven to eight months.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that HRS enter a final order denying the Petitioners' request to be selected as the adoptive parents of M. C. DONE and ENTERED this 15th day of August, 1996, in Tallahassee, Florida. J. LAWRENCE JOHNSTON, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of August, 1996.
The Issue The issue in this case is whether the Respondent, the Department of Health and Rehabilitative Services (HRS), should grant the application of the Petitioners, Charles Wenz and Janet Gallagher, for a family foster home license. 1/
Findings Of Fact Through series of circumstances, the Petitioners in this case--Charles Wenz and Janet Gallagher, husband and wife--came to know the children of a woman named N. M. 4/ Their priest told them about Nancy and her predicament. A serious drug and alcohol addict, and already the single mother of two boys (J. D., born December 30, 1977, and B. F., born January 7, 1983), each of whom had a different biological father, she was about to have another child by yet another man. The Petitioners were asked to help the family, and they agreed. Shortly after the third child--a girl, N. F., born November 4, 1988-- was released from the hospital, the mother asked the Petitioners to let the family live with them temporarily. Not long afterward, the mother slipped back to her way of abusing drugs and alcohol and left, leaving the children with the Petitioners. For some time, the Petitioners cared for the children without being licensed as a family foster home and without any financial assistance from HRS. Later, in approximately March, 1991, they became licensed as a family foster home for the specific and limited purpose of caring for the children of M. 5/ When it came to the children in their care, the Petitioners generally were very attentive to their needs for food, clothing, shelter and medical care, and they provided very well for the children, following up on all doctor appointments and the like. They were very conscientious in this regard. Generally, they got along well with the children, and the children tended to view them as if they were their real parents. As a result of their involvement with the family, the Petitioners came to know the children's maternal grandparents. While initially the Petitioners got along fairly well with the maternal grandparents, they had the opportunity to form opinions of them based on personal experience and stories related by the children and, later, by the fathers of the two boys. Essentially, the Petitioners thought the maternal grandparents were good grandparents, and they encouraged and cooperated in the maintenance of a relationship between the children and the maternal grandparents. At the same time, they did not perceive the maternal grandparents as a good option for permanent placement of the children. Besides the maternal grandparents' age and limited physical and emotional capabilities, and their lack of interest in being permanently responsible for the children on a full-time basis, the Petitioners also had a concern about what they understood to be the maternal grandfather's drinking habits. Instead, since reunification with the mother did not seem feasible to either the Petitioners or to HRS, the Petitioners felt the best option, at least for the boys, would be to investigate their reunification with their fathers. Along with HRS, the Petitioners were instrumental in locating the fathers of the boys and reestablishing contacts between them and their sons. Along with HRS, they actively encouraged and fostered the strengthening of the relationship between the boys and their fathers and worked with HRS to bring the men into a position to begin to care for their sons permanently on a full-time basis. When the Petitioners became licensed as a child-specific family foster home in approximately March, 1991, they agreed to work within the policies and procedures established by the Department and to accept supervision by a foster care counselor. There was no evidence that they were not supportive of the efforts outlined in the foster care agreement or plan. 6/ But problems between the Petitioners and the maternal grandparents developed between the time of the Petitioners' licensure and September, 1991. The problems got so bad that the HRS counselor assigned to the case had to conduct visitation in his office to ascertain who was causing the problems and how to best resolve them. The problems culminated in the maternal grandparents' ultimatum that they no longer could work with the Petitioners as foster parents and that they wanted the children placed with them, the grandparents. The problems worsened as HRS began to investigate the possibility of placing the children with the grandparents. 7/ The Petitioners were against this and attempted to use their positions as foster parents to thwart HRS efforts in that direction. A senior HRS counselor replaced the initial counselor in an effort to shepherd the grandparent placement, with its attendant visitations. But, although regular visitations by the grandparents was prearranged during the fall of 1991, 8/ the Petitioners consistently raised various obstacles to the grandparent visitations, requiring multiple interventions by the HRS senior counselor and others at HRS. Three times, despite HRS interventions, visitation had to be cancelled. The Petitioners' case was taking such an inordinate amount of time that the HRS senior counselor went to his supervisor for relief. The grandparents felt the need to go to court to have the court establish visitation over the Christmas holidays. A hearing had to be held on or about December 10, 1991, and the court granted the grandparents overnight visitation from December 25 through 30, 1991. On inquiring of the children on their return, the Petitioners believed the grandparents did not properly administer prescribed medications for two of the children and accused the grandparents of child abuse. HRS investigated and found that the grandparents had been in direct telephone communication with two of the children's doctors to resolve a discrepancy between two of their medication prescriptions and had followed the telephone instructions of the doctor in charge of the prescription. In connection with the problems with the grandparents, the Petitioners exhibited a clear tendency to try to manipulate the foster care system to their advantage, even unintentionally to the detriment of the interests of the children, and sometimes, out of overzealousness, through use of untruths and half truths. On one occasion, in an attempt to persuade the first HRS counselor not to pursue placement of the children with the grandparents, they told the counselor that an HRS protective services worker had told them that the maternal grandfather had a drinking problem. In fact, it was the Petitioners who had alleged to the protective services worker that the maternal grandfather had a drinking problem. On another occasion, to avoid allowing the grandparents to pick up the children for visitation, the Petitioners cited a supposed statute or rule making it illegal for the grandparents to provide transportation for the children. 9/ Once the boy, B. F., lost a hospital pass for use to visit his grandparents because of problems raised by the Petitioners concerning the legality of the grandparents providing transportation for him. In addition to the problems with the maternal grandparents, the Petitioners exhibited a certain tendency to take things into their own hands when closer contact and consultation with HRS would have been advisable. Once they made arrangements for one of the boys to be admitted to a psychiatric hospital without consulting with HRS and did not advise the counselor until shortly before admission. To attempt to justify their actions to the HRS counselor, the Petitioner told the counselor that the boy's family therapist strongly favored hospitalization for psychiatric treatment. In fact, the counselor later found that the family therapist only had said that it might become necessary at some point to hospitalize the boy. Once the Petitioner, Charles Wenz, used corporal punishment on one of the boys although he knew it was against HRS policy for operators of a family foster home to use corporal punishment. He explained that, due to the history of the Petitioners' relationship with these children, the Petitioners felt more like parents than foster parents and that he did not think it was appropriate in their case for the usual prohibition against corporal punishment to apply to them. Later, Mr. Wenz had another occasion to use a form of corporal punishment on the other boy. 10/ In January, 1992, the Petitioners applied to renew their "child- specific" license as a family foster home. On or about February 1, 1992, the court placed the children with the maternal grandparents, and the Petitioners converted their application to one for general licensure as a family foster home.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Petitioner, the Department of Health and Rehabilitative Services (HRS), enter a final order granting the application of Charles Wenz and Janet Gallagher for general licensure as a family foster home. RECOMMENDED this 13th day of July, 1992, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of July, 1992.
The Issue Whether Petitioners should be approved as adoptive parents.
Findings Of Fact The Gibsons are husband and wife and are residents of Niceville, Florida. It is their desire to adopt a special needs child. Neither Gibson is a parent of natural children. The Department, in accordance with Chapters 39, 63, and 409, Florida Statutes, is the agency which is tasked with determining the eligibility of persons who apply to become adoptive parents in Florida. Constance Aldridge is an adoption worker and family services counselor for the Department. She has worked at that position for seven years. She has a degree in social work. Ms. Aldridge testified that special needs children test boundaries in an attempt to determine the permanency of their residence in the adoptive home. Special needs children are apt to cause extensive turmoil as they work through this process. Ms. Aldridge participated in the adoption review committee. She voted to deny the Gibsons' application because special needs children cause great stress on the adoptive household and she did not believe the Gibsons could cope with it. Sally Lee Townsend is a supervisor with the Department and has worked with the Department since 1992. She has been supervising adoptions since 2000. She works specifically with special needs adoptions. She testified that special needs children are those that are hard to place because they are older, or have medical, mental health, emotional problems, or are African-American or biracial. Ms. Townsend reviewed the Gibsons' application. She had concerns about the mental health history of the applicants as well as a history of sexual abuse in the case of Ms. Gibson. Special needs children typically have been through the foster care system and have experienced multiple moves and when they get to the point that they are going to be adopted they are anticipating that the placement will be permanent. If the children are placed, and then the placement is terminated, they may suffer attachment disorders and multiple mental health problems. Kathi Guy works for the Department in the family safety office. She is a family services program specialist. She has held this job for two and one-half years. She has worked for the Department for a total of 20 years. Ms. Guy reviewed the entire file with regard to the Gibsons' application. She felt the Gibsons had a multitude of issues which would disqualify them as adoptive parents of a special needs child. She chaired the adoption review committee. The adoption review committee recommended denial of the Gibsons' application because Ms. Gibson has a long mental health history including five inpatient treatments, has suffered from depression and a bi-polar disorder, and has a history of being on the receiving end of sexual abuse from more than one abuser. Moreover, the adoption review committee found that Mr. Gibson had a history of refusing to take medication for his mental problems. Shirley Guthrie has known Ms. Gibson since 1971. She helped raise Ms. Gibson. Although she doesn't know much about Mr. Gibson, a few years ago she did not believe Ms. Gibson would be a good parent but she believes Ms. Gibson would be a good parent now. Janice MacNichol has known Ms. Gibson for 31 years and has known Mr. Gibson for four years. She sees the Gibsons almost every day. She is aware that Ms. Gibson has been diagnosed with depression but doesn't think that would prevent her from being a good adoptive parent of special needs children. Ms. MacNichol has three children with medical problems and Ms. Gibson has helped raise them. Ms. MacNichol has worked as a teacher's assistant with learning impaired, emotionally impaired, and physically impaired children for ten to 15 years. She believes that Ms. Gibson would be a good parent to special needs children. Joe Skelly is a licensed psychotherapist in the State of Florida and is in private practice in Mary Esther, Florida, for nine years. He has worked as a clinical therapist for Brideway, which is a community mental health agency. He was accepted as an expert witness in the mental health field. Ms. Gibson was in psychotherapy with Mr. Skelly beginning in 1990 or 1991 and he continues to provide her therapy. He opined that Ms. Gibson had a personality disorder and depression but that currently she no longer meets the diagnostic criteria for a personality disorder. He opined that her depression was under control. Mr. Skelly noted that Ms. Gibson was very open to professional help. He observed that Ms. Gibson had been a victim of sexual abuse but thought that did not mean that she would be a sexual abuser herself. He observed that her attitude toward children is very nurturing. Mr. Skelly also knows Mr. Gibson and believes he is one of the kindest men he has ever met; she believes that the two compliment each other. He is aware that Mr. Gibson has attention deficit disorder but he does not believe that would interfere with his ability to take care of children. However, Mr. Skelly opined that stress could affect Ms. Gibson's mental health status. Mr. Skelly provided marital counseling to the Gibsons four or five years ago. Marital problems arose because Mr. Gibson had lived with his parents until he married, and Ms. Gibson had lived alone for a long time. They still have some unresolved marital issues. Mr. Skelly noted that Ms. Gibson had been hospitalized for depression on several occasions. Generally, when she felt that her depression was getting to the point that she might execute a suicidal threat she would contact Mr. Skelly and he would have her hospitalized. Mr. Skelly has observed Ms. Gibson with children and he believes she would never become physically aggressive with a child. All of the testimony of Mr. Skelly is taken as accurate. Jamie Washburn has four children and her husband has six children of which she is the stepmother. The Gibsons have cared for the children on a number of occasions. Ms. Washburn noted that the Gibsons are very calm with the children and are very loving. She said that the Gibsons have a solid marriage. She is aware that Ms. Gibson has been diagnosed with depression, but she feels that does not affect the care she gives to the children. Judy Welch has been friends with the Gibsons for about six years. She was a registered nurse for ten years. She met Ms. Gibson when they were both in a treatment program. She has seen the Gibsons interact with children and described them as being loving and caring. She believes the Gibsons would be excellent adoptive parents for special needs children. Ms. Gibson testified that she has had many children in her care. She stated that she has suffered several stressful situations in her life but that she now has control of her life. She testified she could take care of a child with minor disabilities but could not handle a child with severe disabilities. She would not attempt to take a child with a severe handicap. Ms. Gibson had been sexually abused by several people over a long period of time. This abuse continued even when she was an adult. Her brother was one of the perpetrators of the abuse, although she still maintains a relationship with her brother. Ms. Gibson testified that she has been diagnosed with a personality disorder and depression. On two occasions subsequent to her marriage she has committed herself to a hospital for the treatment of mental illness. Ms. Gibson stated that she could not really control her depression. She stated that when she experiences stress she finds it necessary to commit herself to a hospital. Ms. Gibson stated that she would like to adopt a child under the age of five years. Mr. Gibson testified that he and his wife could not have children. He said he and Ms. Gibson decided that they had reached the point where, "We can handle a child." He noted that the first two years of their marriage were rough but that through the use of therapy they have learned a lot. He admits to being co-dependent for a while but he has learned to adjust and become more independent. Mr. Gibson testified that he had a "pre-diagnosis" of attention deficit hyperactivity disorder (ADHD). He was given medicine to control it but he said it was too strong for him. It caused intense hyperactivity and he couldn't sleep.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered which finds Petitioners unqualified to be adoptive parents. DONE AND ENTERED this 6th day of August, 2002, in Tallahassee, Leon County, Florida. HARRY L. HOOPER 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 August, 2002. COPIES FURNISHED: Ronald Joseph Gibson Rebecca Anne Gibson 195 Homestead Street Niceville, Florida 32578 Rick Cserep, Esquire Department of Children and Family Services 160 Governmental Center, Suite 601 Pensacola, Florida 32501 Katherine A. Kearney, Secretary Department of Children and Family Services 1317 Winewood Boulevard Building 1, Room 202 Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 1, Room 204 Tallahassee, Florida 32399-0700 Paul F. Flounlacker, Jr., Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 1, Room 204B Tallahassee, Florida 32399-0700
Findings Of Fact Ms. Wilson is a 22 year old, female. Ms. Wilson is a single parent. She provides care for one child, her eighteen month old son. Ms. Wilson has not been married. Ms. Wilson's annual income is approximately $6,000.00. Ms. Wilson's income consists of Social Security benefits, Aid to Families with Dependent Children and food stamps. Ms. Wilson pays approximately $129.00 per month for rent, $60.00 to $70.00 for utilities and $50.00 for furniture. Her food is paid for with the food stamps she receives. Ms. Wilson has an automobile which is paid for. Ms. Wilson is able to live on the income which she receives. Ms. Wilson had open heart surgery when she was three years of age. Ms. Wilson is under no medical restrictions as a result of her heart surgery. Ms. Wilson's physician has told her to have a physical every three years, however. Ms. Wilson is not employed. She quit her last job when she became pregnant with her son. Ms. Wilson's last job was at the Madison Stock Yard where she worked for four years. Ms. Wilson is physically able to work. Ms. Wilson does not plan to work. She intends to devote full time to being a foster parent. Ms. Wilson made inquiry with the Respondent concerning her participation in the foster parent program. Ms. Wilson told Department personnel that she had not been married. Ms. Wilson participated successfully in training sessions known as Model Approach to Partnership and Parenting training. On September 4, 1990, Ms. Wilson filed an Application for License to Provide Foster Home Care for Dependent Children with the Department. Respondent's Exhibit 2. The space for "Husband's Signature" on the Application was left blank. Pursuant to a contract between Florida State University and the Department, a home study was conducted and a report dated August 7, 1990, was prepared for consideration by the Department. In the home study, the following "Initial Placement Recommendations" were made: "One or two children, male or female, age 3-10." Staff of the Department's District 2 reviewed Ms. Wilson's application for licensure and determined that Ms. Wilson met all statutory requirements to become a foster parent. Staff recommended that Ms. Wilson be approved to foster parent one child, new born to five years of age, male or female. Following review of the application by the Department's District 2 staff, the application was reviewed by Larry Pintacuda, Program Administrator of the Children, Youth and Families office of the Department's District 2. Mr. Pintacuda has been delegated authority to disapprove applications for licensure as a foster parent. After reviewing Ms. Wilson's application and the information concerning her application, Mr. Pintacuda decided that Ms. Wilson's application should be denied. Mr. Pintacuda's decision was based upon the following: Ms. Wilson's age; Ms. Wilson is a single parent, with one child to care for already; Ms. Wilson does not receive child support payments; Ms. Wilson's annual income; The potential stress on Ms. Wilson of caring for a foster child. Mr. Pintacuda believed that Ms. Wilson is unable to work because of the stress on her heart. The weight of the evidence failed to prove that Mr. Pintacuda's concerns would prevent Ms. Wilson from being an acceptable foster parent: The weight of the evidence presented failed to prove that a person 21 years of age is not capable of caring for a foster child; The weight of the evidence presented failed to prove that Ms. Wilson is not capable of caring for more than one child as a single parent. The fact that she is currently caring for an eighteen month old child indicates that she is capable of caring for children even though she is a single parent; & d. The weight of the evidence failed to prove that Ms. Wilson cannot financial herself and her child. The weight of the evi- dence proved just the opposite. Mr. Pintacuda was not even aware of what Ms. Wilson's expenses were; e. The weight of the evidence failed to prove that Ms. Wilson will not be able to handle the stress of being a foster parent. Ms. Pintacuda's concern was evidently based upon a statement in the home study conducted pursuant to the Department's agreement with Florida State Univer- sity that "Ms. Wilson had open heart surgery when she was three years old, thus she does not work to avoid stress on her heart." The truth of this statement was not proved by competent sub- stantial evidence at the formal hearing. Addi- tionally, the competent substantial evidence presented at the formal hearing proved that the statement that Ms. Wilson does not work "to avoid stress on her heart" is not correct. See findings of fact 7-9. The Department first informed Ms. Wilson of the specific reasons for denying her application at the commencement of the formal hearing. The Department did not specifically state that Ms. Wilson's application had been denied because she had not been legally married for at least one year as required by Rule 10M-6.005(3)(a), Florida Administrative Code. Ms. Wilson was not, therefore, afforded a fair opportunity to prove that there is "good cause" to approve her application despite her failure to meet the requirements of Rule 10M-6.005(3)(a), Florida Administrative Code. There is good cause to approve Ms. Wilson's application despite the fact that she has not been legally married: (1) Ms. Wilson already is caring for a child; (2) Ms. Wilson does not work, so she will be available to provide full time to caring for a foster child, she completed the training for foster parents provided by the Department; and (3) everyone other than Mr. Pintacuda that reviewed Ms. Wilson's case recommended approval of her application.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a Final Order approving Ms. Wilson's application to be a foster parent for one child, new born to 5 years of age, male or female. In the alternative, if the Department concludes that good cause for not applying Rule 10M-6.005(3)(a), Florida Administrative Code, has not been proved, Ms. Wilson should be given an opportunity to provide further proof. RECOMMENDED this 26th day of April, 1991, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of April, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-0601 The parties have submitted proposed findings of fact. Ms. Wilson's proposed findings of fact were contained in a letter. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Petitioner's Letter Paragraph Number in Recommended Order Sentences in Letter of Acceptance or Reason for Rejection 1 7. 2 6. 3 Hereby accepted. 4-9 Not supported by the weight of the evidence. 10-11 8. 12 Not supported by the weight of the evidence. 13 10. 14-15 Not supported by the weight of the evidence. Hereby accepted. Hearsay. See 11. See 12. 20-22 Not supported by the weight of the evidence. 23 See 4. 24 5. 25-26 Not supported by the weight of the evidence. The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1 and 3-4. 2 6. 3 13. 4 14. 5 15. 6 16. 7 17. 8 COPIES FURNISHED: See 18 and 19 Annie Lois Wilson, pro se Route 1, Box 248 Pinetta, Florida 32350 Harold D. Lewis District Legal Counsel Department of Health and Rehabilitative Services District 2 2639 North Monroe Street Suite 200-A Tallahassee, Florida 32399-2949 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0500
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 issues in these consolidated cases are whether Respondents' foster home license should be revoked as stated in an Amended Administrative Complaint dated October 6, 1999, and whether Mrs. Sampson's request to adopt a child, A.H., should be denied as explained in a letter dated October 6, 1999.
Findings Of Fact The Department of Children and Family Services is the state agency responsible for licensing and regulating foster homes. It also is responsible for receiving and approving applications for adoptions. John Henry and Annette Sampson live in Plant City, Florida. They have been married approximately 24 years. They have adult children and three adopted children, one of whom is their biological grandson. The other two children, both boys, were foster children whom they raised from infancy (R.S., age 10; and D.S., age 9). Mrs. Sampson, a licensed practical nurse (LPN), met R.S. when she cared for him in the hospital following his birth. He had many medical problems and his biological mother was unable to care for him. Mrs. Sampson bonded with the child and sought and received a special foster home license so she and her husband could take him home. R.S. thrived in the care of the Sampsons despite his poor prognosis. The Sampsons were thus licensed as a foster home in 1990, and over an 8-year period cared for 14 foster children, most of whom had complex medical problems. A.H. was placed with the Sampsons when he was approximately one-month old in 1993. He had been exposed to drugs during gestation and had complicated medical problems at birth. He also thrived in the Sampson's home despite poor prognosis for survival. He bonded with the family and considers the Sampsons his parents and the three other adopted children as his brothers. By November 1997, when the children were removed from the Sampson home, Mrs. Sampson had already requested permission to adopt A.H. and was working with the agency on the details of a subsidy for the child. Also living with the Sampsons in November 1997 were two female foster children: A., who was 7 years old and was profoundly mentally handicapped; and M., who was 6 years old, partially paralyzed, and mentally handicapped. The two girls were placed with the Sampsons in February and May 1997; both had been previously subjected to horrific abuse and both began to respond positively, physically and mentally, to the loving care of the Sampsons. The events which led to removal of children from the Sampson home commenced in September 1997. Because of her mental condition M. was considered a danger to herself. She had poor impulse control and ate or chewed clothing, bedding, feces, and anything she could get in her mouth. A Childrens Medical Services (CMS) physician had prescribed restraints for her and Mrs. Sampson used then sparingly. Generally she would restrain M. when she put her to bed at night and would remove the restraints when the child fell asleep. One evening in September 1997, Mrs. Sampson put M. to bed with her restraints. Shortly later Mrs. Sampson went to work on her part-time nursing shift and forgot to tell Mr. Sampson to remove the restraints. The next morning when she returned home Mrs. Sampson found the child still restrained by her wrist, with some swelling. When she took M. to school Mrs. Sampson pointed out the swelling to the school nurse and explained what happened. Because of their routine practice to notify a caseworker of any marks on a foster child, the nurse or M's teacher called the agency. Neither the nurse nor the teacher was concerned about abuse in this case. As a result of the report an abuse investigation commenced and Jim Cunningham, a Child Protection Investigator, took M. to the Child Protection Team (CPT) physician for an examination. Dr. Laleh Bahar-Posey was the CPT medical director. In her medical examination Dr. Posey noted circular marks on the child's left forearm and both ankles, consistent with ligature and consistent with her being tied to the bed. In her testimony at hearing Dr. Posey clarified that she had confirmed during the medical examination that the leg marks were caused by M.'s braces and that Mrs. Sampson had only restrained one wrist. Because the report remained unchanged, however, the agency persisted until the hearing in its assertion that M. had been bound by her arms and legs overnight. Dr. Posey also noted in her examination of M. that the child had a mark on her left forearm that appeared to be an iron burn. Because of the position of the point of the burn, facing the outside of the arm, and because of the child's partially immobile right hand and arm, Dr. Posey and the CPT social worker surmised that the burn was not accidental nor self-inflicted. Mrs. Sampson's explaination of the burn was that her daughter-in-law had been ironing in another room of the home and briefly left the iron unattended. Mrs. Sampson was summoned by a yell from M. Mrs. Sampson immediately saw the child's burn and treated it with salve and a bandage. The next day Ms. Sampson told the school nurse about the burn and asked whether she should take M. to the doctor. The nurse examined the burn and determined that it was minor, was not even blistered, and was barely visible. She did not recommend that Mrs. Sampson take M. to the doctor and the nurse understood that M. could have accidentally caused the burn herself. Although she cannot use her right hand and arm, M. swings the arm as she walks. She is very clumsy and her gait is unsteady. The burn mark according to the weight of credible testimony is wholly consistent with M.'s knocking the iron against her left forearm while flaying her right arm around the ironing board. The pink mark in the healing stage was much more evident on M.'s dark skin than it would have been on a Caucasian child. The final incident leading to removal of the children from the Sampson home was a report to the agency on or about November 17, 1997, that M. had broken her arm about 3 weeks earlier. The Child Protective Investigator obtained the medical records from South Florida Baptist Hospital in Plant City and concluded that because the break was identified as a spinal fracture, requiring a twisting motion, the injury was an "inflicted injury." The agency immediately made plans to remove all children from the Sampson home and took the records to Dr. Posey for review. Dr. Posey's notes after her review of the medical records conclude that the injury was not consistent with Mrs. Sampson's alleged history that the child fell while briefly unattended in the bathroom. Dr. Posey's notes state her "grave concerns" about the safety of this child and other children in the home. Agency staff, including the Child Protection Investigator, a supervisor, and foster care and adoption counsellors convened at the Sampson home on the evening of November 17, 1987. Mrs. Sampson was not home, and Mr. Sampson was home with the three adopted children and the three foster children (A.H., A., and M.). The staff removed the children from the home and placed them in other foster homes or shelter homes. Several things concerned the staff when they were in the process of removing the children. Lesa Simms, the adoption supervisor, saw A.'s braids tied to her bed and Mr. Sampson quickly loosened them. When asked where the girls' clothes and medicine were stored Mr. Sampson said that he took care of the boys and did not know much about the girls. Several staff noticed that prescription bottles and loose pills were left in the kitchen, some on the counter, others in a cabinet within reach of some of the children. One of the staff had to call the pharmacy to find out which medications went with each child. After the children were removed from the Sampson home Ms. Sampson's application to adopt A.H. was reviewed by the agency's Adoption Review Committee which recommended the application be denied. Although the committee members were aware of Mrs. Sampson's prior glowing record as an adoptive and foster parent, the series of three injuries to M. was too serious to ignore. The agency also initiated revocation of the Sampson's foster home license. The Amended Administrative Complaint in Case No. 98- 1928 states these bases for the intended revocation: A foster child in your care was bound by her arms and legs overnight resulting in ligature marks on the child. The foster mother, Ms. Sampson, stated she forgot to remove the restraints. Section 409.175(8)(b)(1), Florida Statutes. A foster child in your care received a spiral fracture on her arm when she was in the bathtub. Medical authority states the injury inflicted was inconsistent with the explanation given by you during the Child Protection Investigation. Section 409.175(8)(b)1, Florida Statutes. A foster child in your care received an iron burn on her arm. The child was seen by a physician who stated the injury was not consistent with the account given by you. Her conclusion was that the iron burn appeared to be consistent with an inflicted injury. Section 409.175(8)(b)1, Florida Statutes. During a visit to your home by department staff, medicine bottles with their safety lids removed were not stored in an appropriate place out of the reach of the children. The bottles were filled with various drugs, such as anti-psychotics, amphetamines, and other drugs that were within reach of most of the foster children in the home. There were loose pills in the cabinet above the counter, along with hot pepper flakes also within reach of most of the foster children in the home. You were out of town according to your husband, who stated he did not know anything about the girl's issues, Section 409.1275(8)(b)2, Florida Statutes, and 65C-13.010(1)(b)7.d, Florida Administrative Code. A staff individual observed Mr. Sampson untying a child's hair from the crib, Section 409.175(8)(b)(2), Florida Statutes and Rule 65C-010(1)(b)5.e, Florida Administrative Code. The October 6, 1999, letter informing Mrs. Sampson of the adoption request denial states: The Administrative Rule 65C-16 currently in effect provides that "if allegations of abuse/neglect or abandonment have been verified, the application must be rejected and referral to the Adoption Applicant Review Committee is not required." Despite this provision, the Adoptive Applicant Review Committee and the district administrator reviewed your application. It was decided that your application would be rejected based upon the facts involved in the Florida Protective Services System reports #97-103474 and #1997-126233, not just the disposition decision of these two reports. Abuse report 1997-103474 had a finding of "some indicators" of burns/scalds with regard to the burn on M.'s left arm. Abuse report 1997-126233 was "verified" for bone fracture/neglect and inadequate supervision and conditions hazardous to a child. The evidence in this protracted consolidated proceeding does not support the agency's intended actions. There is no evidence that Mrs. Sampson abused M. or any other child in her care. The ligature marks, the burn, and the broken arm were each explained by competent experts as accidents which would not be unusual in any normal family and which were entirely consistent with the history offered by Mrs. Sampson. The injuries were certainly consistent with M.'s complex mental and physical condition. In a child under twelve months of age and not walking, a spiral fracture would be an immediate cause for concern. But in an older child such as M., a spiral fracture would occur in a fall when the limb is immobilized on impact and the body twists around it. A deliberate twisting by Mrs. Sampson or someone else would have left such marks on the child's arm that the physicians who saw her in the emergency room immediately after the accident would have been alerted. Instead, no physician who treated M. ever suspected abuse. Dr. Posey did not see her, but instead only viewed the X-rays and the conclusion by Dr. Del Toro, the emergency room radiologist, that the fracture was a "spiral fracture." There is no evidence of false or "inconsistent" histories of the injury reported by Mrs. Sampson. She did not see the child fall; she was bathing M. and left the bathroom briefly; when she returned, the child was on the floor. This account is still consistent with her account to the psychologist, Dr. Whyte, that when she attempted to pick up the child they both fell. In hearing, and in her interview with Dr. Whyte, Dr. Posey receded from her former opinion that the fracture had to be non-accidental. Only one agency staff person observed Mr. Sampson's "untying" A.'s braids from her bed although approximately six individuals, including a law enforcement officer, were at the Sampsons' home gathering the children. The action as described by Ms. Simms was very quick. It might have been as benign as untangling the child's hair which was caught in the bed. Mr. Sampson unequivocaly denies that the child's hair was tied; other agency witnesses testified that they followed Ms. Simms and saw M. sitting or standing in her crib, not lying down with her hair tied. The medications were improperly stored but were inaccessible to most of the children. According to agency witnesses this violation would not have been a basis for denial of an adoption or license revocation. No one, including agency workers who had visited the home many times, announced or unannounced, had ever had a problem with storage of medications at the Sampson home. In fact, no one, not the psychologist, not adoption workers, teachers, co-workers, licensing staff nor physicians who had observed the Sampson children in the home, at school, or in the community, ever saw anything other than loving, caring, conscientious parenting by the Sampsons. Mrs. Sampson could be aggressive and demanding, but always as an advocate for the children. She made requests for special equipment, like a Geri-chair, that would help the children become more self-reliant. She minimized the use of physical restraints and she consulted with the physicians on reducing medications that she felt were keeping M. over-sedated. She bought lovely clothes and cooked special foods for the children and by all reported observations the children, adopted and foster children, thrived and were happy. The dependency proceeding was resolved with a directed verdict against the agency and the Sampsons' adopted children were returned to their home. A.H. now needs to be returned home as well and Mrs. Sampson's adoption request approved. The allegations which were the basis for the Adoption Application Review Committee's recommendation and the District Administrator's acceptance were not proven and there is a preponderance of affirmative proof that the adoption request should be granted in A.H.'s best interests. A.H. bonded with the Sampsons and their children and the passage of time since his removal from the home has not broken that bond. He still begs to go home to them. The psychologist, Dr. Whyte, who evaluated the Sampsons at the agency's referral, and the adoptions caseworker for A.H. both urge that it is in his best interests to be adopted by Mrs. Sampson. A.H.'s current foster mother, who is herself willing to adopt A.H., testified that A.H. should be adopted by the Sampsons as he loves them and considers them his parents. As established with testimony of the agency's own witnesses, evidence of the accidental, not deliberate, injuries to M., coupled with the one-time improper storage of medications, would not support a decision to revoke the foster home license. Instead, in these circumstances foster parents would be asked to sign a letter of compliance. The foster home license expired in 1998, after the children were removed from the home. In April 1998 Dr. Whyte recommended that the girls, with their complex medical problems and extraordinary care-taking demands, be placed in a therapeutic home where 24-hour care could be provided without the conflicting demands of other obligations. Circumstances in the Sampson household have changed since 1997 and 1998 when Mr. Sampson moved out, and the record does not clearly reflect whether he currently resides in the home. The adopted children have grown older and one child may be leaving to go to college. The Sampsons have also grown older. They should be permitted to reapply for a license based on the prior expiration of their license and not based on a revocation action which is not supported in this proceeding.
Recommendation Based on the foregoing it is RECOMMENDED that the agency enter its final order: returning A.H. immediately to Mrs. Sampson; approving her application to adopt A.H.; and granting the Sampsons leave to apply for foster home license without any prejudice of the allegations stated in the agency's October 6, 1999, revocation letter. DONE AND ENTERED this 11th day of August, 2000, in Tallahassee, Leon County, Florida. MARY 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 11th day of August, 2000.
The Issue Whether the Petitioner's request to adopt her grandchildren should be approved.
Findings Of Fact The Petitioner is a resident of Palm Beach County, Florida, and is the biological grandmother of the children she sought to adopt. The Petitioner and the grandchildren are identified by their initials in this order to ensure confidentiality in the matter. The Respondent is the state agency charged with the responsibility of reviewing adoptions for children within their jurisdiction. It is not disputed that the Respondent, by law, was required to review the instant adoption application. In April 2002, the Respondent contracted with the Children's Home Society for services in connection with adoption proceedings. The subject matter of this case was one of the adoption applications transferred at that time. Accordingly, Mary Bosco and Darlene Levy worked together to review the Petitioner's application and to form an Adoption Review Committee to make a recommendation regarding the instant matter. The Adoption Review Committee met on more than one occasion to consider the facts regarding this Petitioner's ability to parent the four grandchildren. The case worker assigned to this matter raised several concerns that were fully investigated and reviewed. Among those concerns was the fact that the Petitioner's legal husband has a lengthy criminal record, including drug-related offenses. Further, Petitioner's husband was charged with cruelty toward a child and is prohibited from having unsupervised contact with his own children. Additionally, the Petitioner is not able to control the home environment as her extended family comes and goes from the residence. The Petitioner is also ill equipped to deal with the medical and educational needs of the children. The Petitioner's children did not perform well in school and the absenteeism and/or tardy rate for the grandchildren is unacceptable. The Petitioner has not demonstrated any improvement where education is concerned. The Petitioner has not followed up on tutoring or therapy for the grandchildren. Finally, neither the Petitioner nor her spouse has a strong employment history to demonstrate financial stability for the home. Despite several efforts to explain the home environment issues to the Petitioner, as well as a court- ordered participation in a program called "Family Builders," the Petitioner has not demonstrated significant improvement in any of the areas of concern identified by caseworkers and the guardian ad litem. The Petitioner has allowed transient houseguests to reside within the home and to assist with the children. On or about September 23, 2002, the Adoption Review Committee met for its final review of the instant application. At that time the committee determined it would not be in the children's best interests to allow the Petitioner to adopt them. The Petitioner has presented no credible evidence to refute the findings reached by the Adoption Review Committee. Such findings (set forth in Respondent's Exhibit 1 and supported by the testimony of Respondent's witnesses) are adopted by reference. It is undisputed that the Petitioner genuinely loves her grandchildren. Moreover, it is accepted that the Petitioner would do her best to provide a stable home for the children. Unfortunately, based upon the Petitioner's track record to date, it is unlikely the Petitioner will be able to provide the parenting and environment these children require. This finding is supported by the fact that all of the children are doing better academically since they were removed from Petitioner's home. Further, all of the children are in better health according to their guardian ad litem. Thus it must be concluded that the home environment offered by the Petitioner was inadequate to meet the needs of these children.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services enter a Final Order denying the Petitioner's application for adoption of the grandchildren. DONE AND ENTERED this 1st day of May, 2003, in Tallahassee, Leon County, Florida. ___________________________________ J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of May, 2003. COPIES FURNISHED: Paul Flounlacker, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 1, Room 202 Tallahassee, Florida 32399-0700 Laurence Scher, Esquire Acting Chief District Legal Counsel Department of Children and Family Services 111 South Sapodilla Avenue Suite 201 West Palm Beach, Florida 33401 U. J. (Address of Record)
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
