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 to be resolved in this proceeding concerns whether the Respondent Marie Smith has committed an intentional or negligent act materially affecting the health or safety of children for whom she operated as a "medical foster care" parent or provider.
Findings Of Fact The Respondent, Marie Smith, was first licensed in 1992, as a foster care parent by the Department of Health and Rehabilitative Services, since re-named the Department of Children and Family Services. In 1996 she became a qualified medical foster parent, authorized to keep children with special medical problems. The Respondent received special training to become a medical foster parent from Children's Medical Services, a unit of the Department of Health, which oversees the progress of children placed in medical foster care. Some of the training the Respondent received concerned a child, T.B. It involved the use of the medication Flovent, which is used to treat asthma and other bronchial conditions. Flovent is dispensed in a small aerosol container and is administered by use of an inhaler. The training which the Respondent received includes the manner in which the person administering Flovent can ascertain when the container is empty and no longer usable. In connection with the Respondent's training as a medical foster parent, Ms. Smith was also instructed in the importance of giving all medications as prescribed and in how to document administration of medications. Through training and practice she learned to execute forms provided by Children's Medical Services (CMS) called treatment records and medication records, in which were logged each dose of medication given. Although not connected with her training as a foster parent, she also received ninety hours in classroom instruction which resulted in her being certified as a pharmacy technician by the State of Florida. On July 29, 1996, the child D.P. was born. D.P. and his twin brother were placed in Ms. Smith's foster home in October 1996. D.P. lived with Ms. Smith continuously until he was removed from the home in March 1999. In July 1998, D.P. was diagnosed as having bronchiolitis, a chronic inflammation of the bronchial passages of the lungs, later identified as asthma. In order to treat this condition he was prescribed Flovent. The purpose of the medication was to reduce the frequency of exacerbations or "asthma attacks." The medication was not designed to alleviate attacks already in progress, but to prevent future attacks. The medication is only effective if given as prescribed over an extended period of time. If Flovent is not administered as prescribed over a period of time the patient may suffer an increased incidence of asthma. The failure to take preventive steps can result in long-term damage to the lungs according to Dr. Bailey. Ms. Smith filled the first prescription for Flovent at Smith's Pharmacy on July 9, 1998. Only one container of Flovent was dispensed on that occasion. A container of Flovent contains an advertised one hundred and twenty (120) metered actuations or "puffs." The literature inserted into every package contains a warning to the user to use the number of actuations, one hundred and twenty, indicated on the box because the correct amount of medicine in each puff cannot be guaranteed after that point. D.P.'s prescription required him to receive two puffs per day, once in the morning and once in the evening. Since the label on the container itself stated that there were only one hundred and twenty puffs per canister, the first container was due to be replaced after sixty days of use at two puffs per day. Notwithstanding this fact, the prescription was not refilled until October 16, 1998, or ninety-eight days after the first container was obtained. Thus, for a period of thirty- eight days, D.P. either received no dose at all, or potentially received an inadequate dose of medicine. An actual test of a full canister of Flovent was conducted at the hearing. That revealed that one could get approximately one hundred and fifty- seven puffs from a canister before it is empty. However, the literature which comes with the medication makes it clear that a user cannot depend on the adequacy of the dosage after one hundred and twenty puffs. Thus, even if Ms. Smith could have dispensed one hundred and sixty puffs from a canister, and if she maintained that she was administering two puffs per day, she would have run out of the medication after no more than eighty days. Ninety-eight days elapsed however, between the filling of the prescription and the first refill which was obtained in October 1998. Even under Ms. Smith's description of the dosing and administering of the medication, D.P. either had to have gone without his medication for some days or was receiving a less-than-standard amount in order for the medication to last as long as she maintained it did (i.e., possibly one puff per day). Ms. Smith maintained that she actually obtained two packages of Flovent from the pharmacy rather than one on October 16, 1998. The pharmacy records, however, show only one container being dispensed both in July and in October. Those records were made contemporaneously with the receipt and filling of the prescription. The pharmacist and pharmacy technician each double-check the work of the other. Thus if Ms. Smith had obtained double the amount of medication, both the pharmacist and the pharmacy technician would have had to make the same error at the same time, which is improbable. Moreover, there is no label on the extra box taped to the box dispensed on October 16, 1998. It is not the practice of the Smith Pharmacy to tape such boxes together or to label only one box. In any event, on October 16, 1998, Ms. Smith got the prescription refilled. On that day she picked up one container of Flovent. The prescription had not changed at that point so D.P. was still supposed to receive two puffs per day, so the container should have been replaced after sixty days. In view of the fact that Ms. Smith was keeping T.B., another child at the same time she provided foster care for D.P., and since T.B. also had a prescription for Flovent, it has not been established that Ms. Smith could have only gotten an extra Flovent box from the pharmacy, with the boxes containing the two canisters taped together and dispensed together on October 16, 1998. She could have simply used T.B.'s prescription box. The prescription obtained on October 16, 1998, was not re-filled again until March 10, 1999. A period of one hundred and forty-five days had thus passed before a new container was obtained. The test performed at hearing showed that as much as one hundred and fifty-six to one hundred and sixty puffs are contained in such a canister and therefore the medication might have lasted the one hundred and forty-five days. However, if the manufacturer's warning or instruction on the literature supplied with the canister is to be believed, after one hundred and twenty puffs had been dispensed (a sixty-day supply) then less medication might be dispensed with each puff thereafter. Since one hundred and forty-five days elapsed before a new prescription and container of medicine was obtained, D.P. may have failed to received one hundred and seventy doses of medicine over a period of five months. This could clearly have resulted in a worsening of D.P.'s condition. Moreover, Ms. Smith incorrectly documented the administration of the Flovent as though she were in fact giving the medication twice per day as prescribed. See Petitioner's Exhibit No. 2 in evidence. The testimony of the witnesses employed with the CMS who oversee the care for children in medical foster care uniformly found that the Respondent provided good care and they never saw any evidence that medical care for the child D.P. was neglected. In fact, Dr. Samir Ebbeid, a pediatric cardiologist who treated the child from October 1996 through April of 1999, found that the Respondent uniformly complied with his instructions about care for the child and thought that the care of the child by the Respondent between the visits to his office was appropriate. In fact he found that the child improved while under the Respondent's care and that there was no reason to believe that the child's medical care under the care of Ms. Smith, the Respondent, was ever neglected. The child's asthmatic condition actually improved during the time he was under the Respondent's medical foster care.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That a final order be entered by the Department of Children and Family Services suspending the foster care license of Marie Smith for a period of ninety days, during which time she should undertake an approved course of instruction concerning the proper administration and record-keeping of administration of prescription drugs for children in her care. DONE AND ENTERED this 15th day of March, 2000, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of March, 2000. COPIES FURNISHED: John R. Perry, Esquire Department of Children and Family Services Room 252-A 2639 North Monroe Street Tallahassee, Florida 32399-2949 Richard D. Ogburn, Esquire Post Office Box 923 Panama City, Florida 32402 Samuel C. Chavers, Acting Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John S. Slye, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact The Petitioners filed an application for institutional adoption of the minor child, K.H., with the Department of Health and Rehabilitative Services at the invitation of the Department. The Petitioners and the Department of Health and Rehabilitative Services believed that the termination of the parental rights of the minor child, K.H., was imminent. The parental rights of the minor child, K.H., were not terminated as expected. As a result of the application for adoption, the Department of Health and Rehabilitative Services generated an adoption home study of the Petitioners. The report of the review committee dated January 1, 1995, based upon the adoption home study, was issued prior to the termination of the parental rights of the minor child, K.H. Petitioners were notified and timely challenged the report of the review committee, and the concurrence to the report of Dr. John M. Awad, Ph.D., District 2 Administrator. Petitioners challenged the jurisdiction of the Department to enter the report of the review committee and Dr. Awad's concurrence in the absence of the termination of the parental rights of the minor child, K.H. The parties agree to present to the Hearing Officer the issue: Whether the committee report and the concurrence of Dr. Awad should have been completed in the absence of the termination of the parental rights to the minor child, K.H.?
Recommendation Based upon the consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: That the committee's report and the concurrence of Dr. John M. Awad, Ph.D., be declared a nullity, that a letter be prepared denying Petitioner's adoption application because parental rights have not been terminated, and that the file be closed except upon order of the Circuit Court. DONE and ENTERED this 22nd day of September, 1995, in Tallahassee, Florida. STEPHEN F. DEAN, 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 22nd day of September, 1995. COPIES FURNISHED: William C. Owen, Esquire Panza, Maurer, Maynard & Neel 215 South Monroe Street, Suite 320 Tallahassee, Florida 32301 Charles A. Finkel, Esquire Suite 252 2639 North Monroe Street Tallahassee, Florida 32399-2949 Robert L. Powell, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Kim Tucker, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700
The Issue Whether Petitioner's application for a family foster home license should be granted by the Department of Health and Rehabilitative Services (hereinafter referred to as the "Department")?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Petitioner previously served as a foster parent from late 1990 until November of the following year. The foster children entrusted to her care during this period of time were four preadolescent sisters, Z.C., A.C., F.C. and W.C., who are now five, seven, nine, and eleven years of age, respectively. Before assuming her responsibilities as a foster parent, Petitioner was provided with, among other things, two acknowledgment forms, which she subsequently signed and returned to the Department. One of the forms related to screening requirements and provided as follows: I, (We) , foster parent(s), understand that anyone who resides in my foster home and is over the age of 18, must be fully screened according to federal requirements. I, (We), understand that screening requirements also apply to anyone I, (We) might use as a baby-sitter. I understand that failure to have applicable persons screened may result in the revocation of my foster home license. I, (We) further understand that any changes in my (our) household composition must be reported to HRS. Screening Requirements Fingerprinting 3 personal references Employer reference Consent form Police clearance Abuse Registry clearance Affidavit of Good Moral Character Discipline Statement FOSTER MOTHER DATE FOSTER FATHER DATE The other form concerned disciplinary measures. It provided as follows: FOSTER PARENT(S): You are aware that for some time, Health and Rehabilitative Services has discouraged the use of physical punishment, including spanking, for children in foster care. Now, however, we have an Administrative Rule statewide which prohibits foster parents from using corporal punishment on foster children. The section of administrative Rule 10M-6; which deals with discipline, is reproduced in the following paragraph: "Licensing and relicensing procedure developed by the Department shall include the presentation of written foster care disciplinary policies to applicants and licensed foster parents to ensure that appropriate nonabusive disciplinary practices are used in dealing with foster children's behavior. Discipline is a training process through which the foster child develops self- control, self-reliance and orderly conduct necessary for them to assume responsibilities, make daily living decisions and live according to accepted levels of social behaviors. The purpose of discipline is education and rational. It focuses on deterring unacceptable behavior by encouraging the child to develop internal controls. Foster Parents are expected to define rules which establish limits and types of acceptable behavior. These rules must be clearly explained to each child and applied equally to all children. Prohibited disciplinary practices include group punishments for misbehavior of individuals; withholding of meals, mail or family visits; hitting a child with an object; spanking a child; physical, sexual, emotional and verbal abuse; humiliating or degrading punishment which subjects the child to ridicule; being placed in a locked room; and delegation of authority for punishment to other children or persons not known to the child. The use of isolation shall be used only for short periods of time as a therapeutic measure when a child's behavior is temporarily out of control. Such periods of isolation shall be observed and supervised by the foster parent to ensure the safety of the child." If you have problems with this new rule, please discuss this with your licensing counselor who will be able to help you work out alternative disciplinary techniques for each child, according to his/her needs. My signature acknowledges that I have read this statement, that I understand the content, and agree to abide by it. FOSTER PARENT DATE FOSTER PARENT DATE During a ten-week training course that she attended prior to becoming a foster parent, Petitioner was further advised of the Department's prohibition against the use of corporal punishment as a means of disciplining foster children. Notwithstanding her awareness of this prohibition, on various occasions during the period of time that she was providing foster care, Petitioner hit her foster children with a belt-like instrument to punish them for their misconduct. On a regular basis, Petitioner had her cousin, Sharon Walker, baby-sit for the children. Walker was not licensed to provide foster care. Furthermore, Walker had not been screened by the Department to determine her fitness to serve as a caretaker for foster children, and Petitioner made no effort to initiate the screening process. Walker was not compensated for her baby-sitting services, although Petitioner did provide her with food and money for the children. Walker baby-sat for the children approximately 100 hours per month. There were times that she had them under her care and supervision for an entire weekend. One such weekend was the weekend of November 16 and 17, 1991. On Tuesday, November 19, 1991, the Department received a report from the nursery school that Z.C. attended that Z.C. had come to school with "a number of unexplained injuries this year," including the "bruises on her leg and on her buttocks" that were observed by the reporter that day. The reporter indicated that she suspected that Z.C. was "being abused." Upon receiving the report, the Department removed Z.C. and her three sisters from Petitioner's home and commenced an investigation of the matter. Beverly Johnson Stevens, a child protective services investigator with the Department, was assigned the investigation. As part of her investigation, Stevens made arrangements for Z.C. and her sisters to be given complete physical examinations at the Broward County Sexual Assault Center (hereinafter referred to as the "Center"). Z.C. and A.C. were examined at the Center on November 20, 1991. Their older sisters were examined at the Center six days later. Z.C.'s and A.C.'s examinations revealed that they had bruises and "fresh" linear marks (i.e., linear marks no more than five days old) on their bodies. F.C. and W.C., it was discovered, had linear marks on their bodies as well, but these marks were not "fresh." Based upon the results of the examinations, as well as the interviews she had conducted with the four children, Stevens determined that the case should be closed as "proposed confirmed." Z.C., A.C., F.C. and W.C. were named as the alleged victims in Stevens' "proposed confirmed" report of abuse. Petitioner and Walker were named as the alleged perpetrators in the report. Petitioner requested an administrative hearing on the proposed classification of the report. The case was thereafter referred to the Division of Administrative Hearings and docketed as DOAH Case No. 92-5694C. On January 21, 1993, before any administrative hearing had been held, the Department and Petitioner entered into a settlement agreement, which provided as follows: COMES NOW, the Petitioner, the Department of Health and Rehabilitative Services, by and through its undersigned counsel, WILLIE LAWSON, and the Respondent F.D.A., jointly stipulate to the following final settlement of the instant cause: Respondent's child abuse report shall be amended to read "Closed Without Classification." The Respondent's child abuse report of "proposed confirmed," shall be deleted and the Respondent, F.D.A., shall be removed from the child abuse registry. The Respondent, F.D.A., individually and on behalf of the minor children, hereby releases the Department of Health and Rehabilitative Services from any claims, demands, actions, judgments and executions which F.D.A. ever had or now has against the Department of Health and Rehabilitative Services arising out of the events which gave rise to this cause of action or any event prior to this date. In accordance with the settlement agreement, the Department filed the following Notice of Dismissal in DOAH Case No. 92-5694C: The Department of Health and Rehabilitative Services hereby gives notice of its decision to abandon the prosecution of this cause. The report of abuse and/or neglect is closed without classification. The basis for this dismissal is that a settlement has resolved all disputed issues. Following the Department's reclassification of the report, Petitioner made the request, which is the subject of the instant case, that she be allowed "to re-open [her] foster home."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Health and Rehabilitative Services enter a final order denying Petitioner's application for a license to operate a family foster home. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 15th day of February, 1994. 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 15th day of February, 1994.
Findings Of Fact Jimmie Ray Brown is, by occupation, normally a merchant seaman. However, pending a resolution of the situation forming the basis for this hearing, he is currently working ashore. Mr. Brown has custody and control, by court order, of two children, Linda Marie (Age 8) and James Henry (Age 5) Martin. Mr. Brown has filed for adoption of both children. A home study has been done and the natural mother of the children, who is presently in the penitentiary, has consented to the adoption. In Mr. Brown's opinion, only the home study report is holding up consummation of the adoption. No evidence to contradict this was submitted either by DHRS or the Guardian ad Litem (GAL), but so far, the petition has not been granted. Mr. Brown knows the Petitioner and requested her to live in his trailer home, located in Okaloosa County, to care for the two minor children while he is at sea. In order to do this properly, Petitioner, on January 14, 1985, applied for a license to run a foster care home. At that time, she was not living in Brown's home but, instead, was living with her sister- in-law in the house on the lot in front of Mr. Brown's trailer. When Petitioner filed her application for license as an foster parent, under the rules and regulations of DHRS, various investigative steps were taken including, among other things: a sexual abuse check, a foster home study, and a law enforcement registry records check. The abuse registry check, completed on January 31, 1985, indicated no record of abuse, neglect or exploitation was on file in the Florida Abuse Registry involving Ms. Robinson. The foster home inspection report from a sanitation standpoint was determined to be satisfactory on January 11, 1985; the physician's report on Petitioner, done on January 17, 1985, reflected that she was free from communicable diseases and in good physical condition her references were acceptable, and the home study report, entered by Mr. Thomas Goodwin on March 4, 1985, recommended that Petitioner be licensed as a foster parent by the State of Florida to care for James and Linda Martin in the trailer home furnished by Mr. Brown. All of this information was evaluated upon submission by Dorothy S. Turner, a program analyst in the program office of Respondent's Pensacola office. Her job includes the review of and recommendation on applications for licensing of foster Homes in that district. Based on the information submitted with Petitioner's application, Mrs. Turner concluded that Petitioner would be acting as a foster parent in Brown's home for two children, at least one of whom was not related to Mr. Brown. Based on this information, and because she did not have sufficient knowledge of Mr. Brown's status and living arrangements, applying the standards for foster home in DHRS Rule lOM-6.05, Mrs. Turner decided to grant a provisional license for a three-month period. Also, according to the information she had, there was no current proper petition for adoption pending at that time. Even though Mrs. Turner approved a three-month provisional license, her secretary prepared all the paperwork relative to the issuance of a standard one year license (non- provisional) and so notified the Petitioner. The file was forwarded to the District Supervisor without again being reviewed by Mrs. Turner, and the non-provisional license was issued along with all the collateral documentation. Once the non-provisional license had gone out, however, Mrs. Turner saw the completed work and was upset by the fact that the wrong license had been issued. At no time was it her intention to issue other than a three-month license. Approximately one week after the issuance of the original license, corrective action was taken and Petitioner was issued a three-month provisional license. Petitioner appealed this decision and the matter was referred to the Division of Administrative Hearings for resolution. However, prior to the DOAH hearing, a hearing was held in Circuit Court on April 30, 1985, at which, for reasons not put in evidence at this hearing, the Judge issued an order which, inter alia, directed that the children have no contact with the Petitioner and that she vacate Mr. Brown's home. Based on this order, Mrs. Turner did nothing further regarding Petitioner's license. She could have and she should have requested Petitioner return the provisional license on the basis of the court's order but did not do so. Petitioner has not made application for a new license subsequent to that time. The evidence indicates that at the time in question between January, 1985 and the time of the April 30 hearing, Petitioner was not living in Mr. Brown's trailer but, as was stated previously, in her sister-in-law's home in front of the trailer. The trailer was occupied by Mr. Brown and the two children. Petitioner would visit there and take care of the children when Mr. Brown was not present, and, during the Easter vacation in April, 1985, when the children were out of school, she did, in fact, for the one week period, live in the trailer with Mr. Brown and the children. Since a license can be issued only to a person living in the foster home, Mrs. Turner assumed that was where Petitioner was living, though this was not so. Based on the information available on the application form, and applying the standards set for evaluation of foster homes, Mrs. Turner could not have approved a one year license because Mr. Brown was living in the home with Linda Martin. Though he had filed a petition for her adoption the petition required amendment and was not, therefore, an "in process" petitioner. Because Mrs. Turner wanted additional clarification of Mr. Brown's status, she granted the three-month license. According to Mrs. Turner, her interpretation of the rule in question indicates that a non-resident can reside in the foster home only for 90 days. Since Mr. Brown was not a relative to Linda Martin, he therefore was required to vacate the property within 90 days or have a proper petition for adoption in process. In short, according to Mrs. Turner, all these questions regarding Mr. Brown's status appeared unanswered and Mr. Brown made no effort to explain or provide answers. It is clear that no one from DHRS asked him any questions either. Nonetheless, as a result of the lack of answers, Mrs. Turner was using the 90 days provisional license period to provide time for the unanswered questions to be resolved.. The decision was based entirely on the information contained in the application submitted by Ms. Robinson and by Mrs. Turner's or her subordinates' observations of the situation. Very little effort appears to have been made to clarify Mr. Brown's status or, for that matter, that of Ms. Robinson. No questions were asked of anyone whether Mr. Brown was going back to sea, and if so, when, and no attempt was made to verify whether or not Ms. Robinson was living in the house. Assumptions were made and decisions based on those assumptions which, unfortunately, were not verified or clarified. According to the GAL, Mrs. Phillips, the adoption of Linda Martin by Mr. Brown has not yet been granted. As GAL, Mrs. Phillips is required to advocate the best interests of the children for whom she works and does investigations, visits with the children and their caretakers, writes reports, and submits recommendations as to what she thinks is the best action to be taken on behalf of the children. In this case, Ms. Phillips, who is not employed by or affiliated with DHRS, talked with Mr. Brown and Petitioner on several occasions. One subject for discussion was the living arrangements of Brown and Petitioner. At the time of the first inquiry, Petitioner was living with her sister-in-law whose home as was stated previously, was located in front of Mr. Brown's trailer. In April of 1985, Petitioner told Mrs. Phillips she was living in Mr. Brown's trailer because it was convenient for taking care of the children. This is not inconsistent with Mr. Robinson's testimony that during the Spring vacation in April, 1985, for the one week period, she did live there but that at all other times, she did not live in Mr. Brown's trailer. Mrs. Phillips was familiar with Mr. Brown's seagoing activity. In their discussions, Mr. Brown indicated to her that he would be away four to six months out of the year. The remaining time, he said, he would live in the home with the children and when he was living there, Petitioner would move out. The four to six months of absence would not all be contiguous but might be split up over several trips. In the two reports submitted to the court as Guardian ad Litem on this case, Mrs. Phillips failed to address Petitioner's suitability as caretaker for these two children and no evidence was brought out at the hearing what her current opinion was. She did not indicate approval, but more significantly, neither did she indicate disapproval. As the advocate for the minor children, it seems only reasonable that if she did not approve of Petitioner, she would have said so since the best interests of the children were at stake. After Petitioner was ordered out of the Brown trailer in April, 1985, Mr. Brown made arrangements for another individual to care for the children. This individual has applied for a foster care license based on her status with the children.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent, Department of Health and Rehabilitative Services, deny Petitioner, Lydia Robinson, the one year foster care license. RECOMMENDED in Tallahassee, Florida, this 10th day of September, 1985. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of September, 1985. COPIES FURNISHED: William D. Barrow, Esq. P. O. Box 486 Crestview, Florida 32536 Linda K. Harris, Esq. District Legal Counsel 160 Governmental Center Pensacola, Florida 32576 John O. Stapleton, Esq. 514 N. Baylen Street Pensacola, Florida 32501
The Issue What final action should be taken on Petitioner's application to renew its full-year regular license to operate as a Florida child-placing agency.
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made: Petitioner Petitioner is now, and has been at all times material to the instant case, a child-placing agency doing business in Palm Beach County, Florida. Cheryl Eisen, Esquire, is now, and has been at all times material to the instant case, Petitioner's executive director. She and her secretary are currently Petitioner's only employees. Ms. Eisen is now, and has been since 1974, a member in good standing of The Florida Bar. She specializes in adoption law. Her law firm provides Petitioner with legal services. Ms. Eisen is not paid for any of the work she performs in her capacity as Petitioner's executive director. (Her law firm, however, is paid for the legal services it provides.) Ms. Eisen was first employed by Petitioner in February of 1996. Before she started working for Petitioner, Ms. Eisen served as outside legal counsel for another Florida-based child- placing agency, Adoption Connection. Her services were terminated by Adoption Connection in March of 1995, when she became embroiled in a dispute with the executive director and board of directors of the agency concerning whether to report to the Department's predecessor, the Department of Health and Rehabilitative Services (HRS), that administrative action had been initiated against a "sister agency" of Adoption Connection's located in Massachusetts. Ms. Eisen advised that HRS be notified of the situation in Massachusetts, but Adoption Connection's executive director and board of directors refused to follow Ms. Eisen's advice. When she insisted that such notification be given, she was terminated. Adoption Connection was closed a few months later. Ms. Eisen, along with Sally Oken, a licensed clinical social worker who had also worked for, and been terminated by, Adoption Connection, subsequently formed Petitioner. Petitioner's Licensure History Petitioner was first licensed as a child-placing agency on April 15, 1996. The license it received was a provisional license. This provisional license was converted to a regular license, expiring April 30, 1997. On April 30, 1997, Petitioner received a second provisional license, expiring June 13, 1997. This second provisional license, on June 13, 1997, was replaced by a regular license, expiring April 30, 1998. Petitioner first received a full-year regular license in 1998. The license had an effective date of April 30, 1998. The Certificate of License that Petitioner received from the Department indicated that Petitioner "ha[d] complied with the minimum standards set by the Department for Child-Placing Agencies." The Certificate of License was accompanied by the following cover letter from the Department, dated May 1, 1998: Enclosed is a copy of the licensing report and the Certificate of License for Adoption Advisory Associates, Inc., effective April 30, 1998, expiring April 30, 1999. The license is to be displayed in a prominent place at the agency. Please pay particular attention to items indicated in bold in the report. The foster home license needs to be processed as soon as possible. I will work with the Department, although you need to follow up and notify me when the license has been issued. When your audit is complete, please notify me and send the packet to me (no later than June 30, 1998). . . . The "licensing report" which was sent to Petitioner along with the Certificate of License provided, in pertinent part, as follows: RESULTS: . . . Program Policies and Procedures: A revised contract and fee schedule was formulated and submitted to the Department. AAA has complied with the recommendation by the Department to inform all clients of their right to report a complaint to the Department. The Agency has incorporated this necessary information in their packets to clients. Policies and procedures and necessary legal documentation appear to comply with Florida Code 65C-15. Documentation of counseling services to birth parents and support services was also found in files. Staff: . . . Screening documentation has been kept up to date. Cheryl Eisen will be due for 5-year re-screening in July 1998, which would include FDLE and local law checks. . . . Audit and budget: The agency's fiscal year ends April 30, and the audit and budget will be prepared and submitted to the Department. The auditor's report will be reviewed by the Department, and past recommendations by the auditor are expected to have been put into place. The audit needs to be completed and submitted by June 30, 1998. Complaints/concerns: During the past year, the Department received a few phone calls from prospective and waiting list adoptive couples, and a birth parent relative who expressed concerns or had questions on certain agency procedures. These concerns were discussed and resolved by the Department and/or agency staff. It is recommended that a system of monthly contacts with adoptive couples who are waiting for a placement be established, and that services and a system of communication with adoptive couples be expanded. . . . RECOMMENDATION: Adoption Advisory Associates appears to comply with licensing standards outlined in Florida Administrative Code 65C- 15. Items indicated in bold in this report need to be addressed accordingly. It is the recommendation of the Department to issue a Child-Placing license to Adoption Advisory Associates, effective April 30, 1998, expiring April 30, 1999. The Submittal of Petitioner's March 1999 Application for Licensure Renewal and the Department's Response By letter dated March 2, 1999, the Department, through Karen Willson, a facilities licensing counselor with the Department, reminded Petitioner, through Ms. Eisen, that its current license would expire on April 30, 1999. The letter read as follows: As you are aware, all child-placing agencies need to be relicensed on a yearly basis. Your present license expires on April 30, 1999. Enclosed are Application For License and Assurance of Compliance forms, which need to be signed and returned to me. I am also sending a copy of Florida Administrative Code, Chapter 65C-15, Licensing Standards, and a licensing checklist to use as a guide. I will be reviewing all areas of these licensing standards at the time of the monitoring. Please compile a list of all adoptive couples, on the waiting list, and couples who have had adoptive placements during the last year, including addresses and phone numbers. As part of the licensing process, I may be contacting these individuals. Please send this list to me prior to the scheduled on- site visit. I would like to meet with you on March 23, 1999, at 10:00 a.m. Please call met at . . . to confirm this date and time. In addition, please have the following available for review: Monthly contact sheets (adoptive couples waiting) Organizational chart with employees listed Updates of changes in policies and procedures Fee schedule for adoptive parents Statistics (no. of birth mothers, adoptive parents waiting, placements, finalized and ongoing) List of board members; board meeting minutes Annual Audit** Budget Staff training logs and evaluations Files: personnel (including screening information), birth mothers, adoptive parents, foster homes. If you have any questions concerning the licensing process, please feel free to call me. ** AAA is presently out-of-compliance with Florida Administrative Code 65C-15, as the Department has not received an annual audit. The last audit received was dated June 3, 1997. This will require a corrective action if a current audit is not received by March 23, 1999. On March 23, 1999, Petitioner submitted to Ms. Willson its application seeking the renewal of its full-year regular child-placing agency license. On April 14, 1999, Ms. Eisen, by facsimile transmission, provided Ms. Willson with the statistical information Ms. Willson had requested in her March 2, 1999, letter. By letter dated April 28, 1999, which read as follows, Ms. Willson informed Ms. Eisen that the Department was granting Petitioner a "three-month provisional license: Enclosed is a provisional Certificate of License for Adoption Advisory Associates, Inc., expiring July 31, 1999. As you are aware, the Department is currently investigating recent complaints reported to the Department regarding the agency. In order to complete the investigation, a three- month provisional license is granted at this time. 1/ You will be notified as to the results of the investigation, when completed, and the status of your license at that time. The enclosed "provisional Certificate of License" stated as follows: Know All Men by These Presents: That the Department of Children and Families being satisfied that the facility located at 2999 Camino Gardens Blvd., Suite 205 in the city of Boca Raton, County of Palm Beach, State of Florida, has complied with the minimum standards set by the Department for Child- Placing Agencies and the Department approves the application of said Adoption Advisory Associates, Inc. for a license to operate and directs the issuance of this certificate on the 30 day of April, 1999. The license shall continue in force for one year from the above date unless renewed, withdrawn, or revoked for cause. This is a provisional license which will expire July 31, 1999. The certificate was signed by the District Administrator. By letter dated May 14, 1999, Petitioner informed the Department of Petitioner's "objections regarding being given only ninety days' provisional status." As noted above, on July 15, 1999, the Department issued its Notice of Intent and, by letter dated July 26, 1999, Petitioner requested an administrative hearing on the matter. By letter dated July 29, 1999, to the District Administrator, Ms. Eisen set forth Petitioner's position regarding the "legal situation" with respect to its licensure status: We applied for renewal of our license on March 24, 1999. On April 30, 1999, the Department apparently purported to neither approve nor to deny our license renewal application, but to give us a "provisional" license. In pertinent part, Florida Statutes section 409.175 (1998) provides the circumstances in which a provisional license may be issued: "(6)(a) The department may issue a provisional license to an applicant who is unable to conform to the licensing requirements at the time of the study . . . . The issuance of a provisional license shall be contingent upon the submission to the department of an acceptable written plan to overcome the deficiency by the expiration date of the provisional license. A provisional license may be issued when the applicant fails to meet licensing requirements . . . and the agency has submitted a corrective action plan which is approved by the department. [A] provisional license may not be issued unless the applicant is in compliance with the requirements in this section for screening of personnel. A provisional license . . . may be suspended if periodic inspection by the department indicates that insufficient progress has been made toward compliance with the requirements." All three subsections of section 409.175(6) anticipate that the Department has informed an agency of deficiencies that need to be corrected at the time the provisional license is granted. As this agency received no such notice, we were not in fact granted a provisional license on April 30, 1999, but an unconditional approval of our license application. In the alternative, Florida Statutes section 120.60(1) 1998 requires that: "Every application for a license shall be approved or denied within 90 days after receipt of a completed application. . . . The agency must approve any application for a license . . . if the agency has not approved or denied the application within the time periods prescribed by this subsection." Because the District did not approve or deny by June 22, 1999, the license we applied for on March 24, 1999, this so-called "deemer" provision in the Florida Administrative Procedures Act has entitled this agency, since June 22, 1999, to demand issuance of an unconditional license. It is our hope that, in consideration of the foregoing, as well on the basis of the material we have previously provided directly to you and Judge Kearny, you will forthwith issue the license which this agency presently enjoys by operation of law. The District Administrator responded to Ms. Eisen by sending her a letter, dated July 30, 1999, which read as follows: The Department of Children and Families has reviewed your correspondence of July 29, 1999 regarding the licensure of Adoption Advisory Associates, Inc. (AAA) A determination has been made that AAA will receive a restricted Certificate of License in order to continue working with existing clients. The license will be subject to immediate revocation in the event that a final order is issued affirming the Department's decision not to renew AAA's license. A list of existing clients must be provided to the Department within five days of receipt of this letter. Failure to do so will result in the revocation of the restricted license. The Restricted Certificate is attached. The Department has forwarded your July 26, 1999 request for an administrative hearing to the agency clerk for processing. Thank you for your prompt consideration. The "attached" "Restricted Certificate" indicated that it would "continue in force for one year from [July 31, 1999] unless renewed, withdrawn, or revoked," and further indicated that it would be "subject to immediate revocation in the event that a final order is issued affirming the Department's decision to not renew Adoption Advisory Associates' license." Petitioner still operates under this "Restricted Certificate," which provides that Petitioner shall accept no new clients. "Agency Identified" Domestic Adoption Services Contract At all times material to the instant case, Petitioner presented to prospective adoptive parents desiring to receive domestic adoption services from Petitioner a form contract (Domestic Contract) for their signature. Section I of the Domestic Contract addressed the subject of the "agency's undertaking, services, and exclusions." It provided as follows: Agency's Undertaking. The Prospective Adoptive Parents request, and the Agency is willing to provide, domestic adoption services with the goal of providing to the Prospective Adoptive Parents an offer of placement of an adoptable newborn child in the Prospective Adoptive Parents home at the earliest possible moment. The Agency agrees to make a diligent effort to place such a child with the Prospective Adoptive Parents in accordance with the social service policies and procedures of the Agency, as established and from time to time amended by the Agency's Board of Directors, and in accordance with federal and Florida statutory and administrative law. Agency Services. The Agency's domestic adoption services include, but are not limited to, birth parent outreach in the form of professional networking and widespread advertising; provision of prebirth medical and social services to birth parents, including counseling about adoption issues and alternatives; home studies and pre- and post-adoption counseling for prospective adoptive parents; presentation of educational and supportive forums and seminars for clients, professionals, and the public; birth parent housing; and legal services including termination of parental rights and finalization of Florida adoptions. Non-resident Prospective Adoptive Parents. If the Prospective Adoptive Parents are not Florida residents, compliance with the law of their home state as regards payment of Agency's fees and costs, placement, post-placement and finalization of adoption is their sole responsibility and must be arranged for by obtaining advice and assistance of a licensed and experienced attorney in that state prior to the execution of this contract, providing the following information: Attorney Telephone Street City State Zip The Prospective Adoptive Parents understand that disapproval by their home state of any aspect of a placement pursuant to this contract may disrupt the placement. The Prospective Adoptive Parents indemnify and hold the Agency harmless for such result, remaining responsible for the "At Placement" fees and costs due the Agency under this contract to the extent not otherwise recouped by the Agency by making an alternate placement of any child identified to this contract. Further, such mistake of law shall not be a basis for recission of this contract or refunding of "At Contract" fees and costs paid hereunder. (See paragraphs II, B and C, below for information regarding "At Contract" and "At Placement" fees.) Section II of the Domestic Contract addressed the subject of the "fees and costs." It provided as follows: Basis for Determining Fees and Costs. Pursuant to Florida Administrative Code section 10M-24.019(4)(b), 2/ the Agency's adoption fees have been established based on the reasonable costs of the following services for the total adoption program: (1) medical services for the child and the birth mother; (2) legal services; (3) counseling services; (4) home study services; (5) living expenses for the birth mother; (6) foster care services; (7) pre- and post-placement social services; (8) contracted services, if applicable; (9) other necessary services; and (10) agency facilities and administrative costs. Summary of Estimated Fees & Expenses and Refund Policy. The Agency's Summary of Fees & Expenses ("Fee Summary") and its Refund Policy are attached and incorporated in this agreement by this reference. The Prospective Adoptive Parents acknowledge that those documents have been thoroughly reviewed by them with Agency staff and are completely understood and accepted. Timing and Manner of Payment of Fees. A Home Study Service Fee will have been paid to the Agency prior to execution of this agreement. The "At Contract" Fees shown on the Fee Summary are due upon execution of this agreement, after the Agency's approval of the Prospective Adoptive Parents' home study. The "At Placement" Fees shown on the Fee Summary, including all contingent fees as estimated by the Agency, are due in the form of a cashier's check after birth immediately prior to physical placement of the child with the Prospective Adoptive Parents. The "Fee Summary" referenced in subsection II.B. of the Domestic Contract provided as follows: SUMMARY OF ESTIMATED FEES & EXPENSES AGENCY ADMINISTRATIVE FEE (out-of-Florida birth or placement $500 additional*) At Contract $5,750.00 At Placement $5,750.00 BIRTH PARENT COUNSELING FEE At Contract $1,250.00 At Placement $1,250.00 BIRTH MOTHER SUPPORT FEE/EXPENSES At Contract $2,000.00 At Placement [see note]** BIRTH MOTHER MEDICAL FEE/EXPENSES At Contract $2,000.00 At Placement [see note]*** POST PLACEMENT SERVICES FEE (out-of- Florida placement $500 less) At Placement $1,000.00 LEGAL FEE**** At Contract $500.00 At Placement $1,000.00 [Total Due] At Contract $11,500.00 * An out-of-Florida birth or placement may also involve additional costs for out-of- state attorneys, agencies, and/or social workers, which costs will not be within the agency's control; further, adoptive parents' travel expenses are additional and will include hotel costs while Interstate Compact processing is pending. ** A $2,000 minimum Birth Mothers' Support Fee is required regardless of whether and to what extent support of the Birth Mother is needed. This permits the agency to fund the provision of living expenses to birth mothers who ultimately choose not to place or whose babies are ultimately determined to be legally or medically unadoptable. A Birth Mother's actual support expenses only rarely exceed $3,500 additional to the $2,000 Support Fee paid "At Contract." *** A $2,000 minimum Birth Mothers' Medical Fee is required regardless of whether and to what extent the birth may be covered by insurance or Medicaid. This permits the agency to fund the provision of medical services to birth mothers who ultimately choose not to place or whose babies are ultimately determined to be legally or medically unadoptable. In the event of a "non-covered" birth, the adoptive parents will be responsible only for the birth mother's actual medical expenses, which can be expected to be between $3,000.00 and $8,000.00, after credit for the $2,000 Medical Fee paid "At Contract," depending on the circumstances of pregnancy and birth (with no contribution to our medical service fund required). The child's medical expenses are additional, but under the law of many states, including Florida, these are reimbursable by the adoptive parents' health insurance carrier. **** The $1,500.00 legal fee is exclusive of required court and administrative fees (filing fee for petition of adoption, certified copies of court orders, obtaining original and amended birth certificates-- totaling approximately $250), and does not include the expense of newspaper publication of notice to the birth father, if such is legally necessary ($275 - $300), or any unanticipated fees or expenses. NOTE: Charges for required home study services are payable at the time of service, prior to and apart from the "At Contract" and "At Placement" fees shown above. Charges are as follows: full home study-- $1,500; update of home study more than a year old-- $750; review and confirmation of current home study prepared outside our agency-- $350. The "Refund Policy" referenced in subsection II.B. of the Domestic Contract provided as follows: REFUND POLICY In some few cases, prospective adoptive parents accepted into Adoption Advisory Associates' program decide to continue with, or seek out, other placement sources after working with us. We fully support whatever decisions you make in this regard, and work equally diligently for those working only for us and those working with other agencies and/or attorneys as well. We have developed the following refund schedule to be effective in the event you accept placement of a child from another source (or receive confirmation or your own pregnancy): If you notify us in writing of your acceptance of placement of a child from another source (or of your own pregnancy), we will refund your At Contract fees and expenses within thirty days of receipt of such notification as follows: Notification within 0-30 days of date of acceptance into AAA's program: $5,000.00 31-60 days $4,000.00 61-90 days $3,000.00 91-180 days $1,500.00 after 180 days No Refund For purposes of this Refund Policy, "placement" is defined as actually receiving a child in your home for the purpose of adoption. "Date of your acceptance into AAA's program" is defined as the date we sign our Domestic Adoption Services Contract with you. If, in the sole discretion of the Executive Directors, circumstances other than receiving placement of a child from another source, or confirmation of pregnancy, warrant any refund of At Contract fees and expenses, such a refund would be based on the foregoing schedule. In no event shall any mistake of law by Prospective Adoptive Parents residing outside the state of Florida as to the enforceability or implementation of this contract under the law of their home state constitute grounds for any refund of fees or costs paid by them, it being their sole obligation to obtain counsel in their state before entering into our Domestic Adoption Services Contract. Section III of the Domestic Contract addressed the subject of "conditions of matching and adoptive placement." It provided as follows: Birth Parent Selection of Prospective Adoptive Parents: Contact Protocols. The Agency encourages birth parents to participate in the process of choosing prospective adoptive parents for their babies from those pre-approved and recommended by the Agency, and such choices are given paramount importance. Nevertheless, the Agency has sole and exclusive control of the sequence of parent(s) eligible to adopt and the matching process, and will make final decisions regarding matching, meeting and placement of children for adoption. From the time of matching to the time of placement for adoption, the Prospective Adoptive Parents will abide by any and all protocols the Agency in its sole discretion shall establish, either in general or ad hoc, as relates to contact with the Agency's birth parent clients and their babies, whether in the Agency, in the hospital, or elsewhere. Placement Formalities. After the birth of the child to be placed with the Prospective Adoptive Parents, but before physical placement, the Prospective Adoptive Parents will, as conditions precedent to placement, (1) execute the Agency's placement papers and (2) pay to the Agency by cashier's check the balance of the total estimated fees and costs of the of the adoption as determined by the Agency at that time. Any additional costs (typically medical expenses) associated with the placement will be paid by the Prospective Adoptive Parents upon receipt of the Agency's bill, but in no event later than the execution of the Agency's consent to finalization of the adoption of the child. Legal and Physical Custody until Finalization; Duty of Support. As provided by law, the Agency retains legal custody of the child until finalization of adoption occurs and thus has the authority to make any and all decisions it deems to be in the child's best interests. Nevertheless, the Prospective Adoptive Parents, to be the physical custodians of the child, agree to provide for one hundred percent of the child's medical and other care nunc pro tunc (i.e. retroactively) from birth until finalization of adoption, and indemnify and hold the Agency harmless for any claims by third parties for providing goods or services to the child. Removal of Child. The Agency may remove the child from the home of the Prospective Adoptive Parents, prior to finalization, if the Prospective Adoptive Parents accept another child for the purpose of adoption either through another Agency or through an attorney. The agency will remove a child from the home of the Prospective Adoptive Parents, prior to finalization, if in its professional judgment the placement proves not to be in the best interests of the child. Section IV of the Domestic Contract addressed the subject of "placement, post-placement and finalization." It provided as follows: Timing of Placement; Foster Care. The Agency may place a child with the Prospective Adoptive Parents, and the Prospective Adoptive Parents agree to be available for the placement of the child, as soon as 24 hours following the birth of the child if the Agency determines that placement is clinically appropriate. In the event the Prospective Adoptive Parents or the child are not ready or available for placement upon the child's discharge from the hospital so that foster care is required, the Agency will place the child in foster care until appropriate arrangements are completed for placement with the Prospective Adoptive Parents. In this event, the Prospective Adoptive Parents will be responsible upon placement for such foster care expenses at the rate of $75.00 per day. Out of State Birth; ICPC. In the case of a birth in a state other than the Prospective Adoptive Parents' home state, the Prospective Adoptive Parents (or one of them) must travel to the foreign state, at their expense, to take physical custody of the child. They must remain in that state until all the legal requirements imposed by the Interstate Compact on the Placement of Children ("ICPC") have been complied with in both the "sending" and "receiving" state. The duration of the stay in the foreign state is subject to many factors beyond the control of Adoption Advisory Associates, but will be estimated at the time a particular match is offered. A typical ICPC waiting period is five (5) to ten (10) days. Post-Placement Supervision. If a child is placed with Prospective Adoptive Parents residing in Florida, the Agency will conduct a scheduled series of post-placement contacts with the family. These contacts are for the purpose of providing support and collecting data for the Agency's final recommendation to the court regarding finalization of the adoption. If placement is outside Florida, a local social service provider will be arranged and paid for by the Prospective Adoptive Parents, subject to the approval of the Agency, to perform this post-placement supervision. Progress Reports and Photographs. The Prospective Adoptive Parents agree to submit to the Agency monthly written reports regarding the child's progress, along with color photographs of the child, each month until finalization of the adoption, and thereafter each year around the time of the child's birthday. It is understood that these reports and pictures will be available to the birth parent(s) to the child. Post-Placement Medical Care; Emergencies. In case of an emergency involving the adoptive child, the Prospective Adoptive Parents agree to administer to the child's needs first, seeking any medical care which may be needed, then to contact the Agency as soon as possible to inform the Agency as to the nature of the emergency and the child's status. The expense of all post-placement medical care for the child is the responsibility of the Prospective Adoptive Parents, who are required to have comprehensive medical insurance coverage in place at the time of placement. Travel Before Finalization. Until the finalization of adoption, the Prospective Adoptive Parents must inform and obtain the approval of the Agency of any travel plans which would take the child out of the state in which the child was placed by the Agency for more than 7 days. Finalization of Adoption. The Prospective Adoptive Parents agree to legally finalize the adoption of the child in the state where the Prospective Adoptive Parents reside as soon as permitted under applicable state law. For Florida residents, legal fees paid to the Agency include the expense of finalization of adoption in Palm Beach County, Florida, by the Agency's legal counsel. Non-Florida residents are responsible for obtaining and compensating counsel in their home state to finalize the adoption. Non-residents' home states may require local social worker's reports, filing fees, and other expenses which are the sole responsibility of the Prospective Adoptive Parents. Request by Prospective Adoptive Parents for Removal of Child. The Agency will act as expeditiously and promptly as possible to make alternate arrangements for placement in the event that the Prospective Adoptive Parents request that the child be removed prior to finalization of the adoption for any reason. Non-Placement. In the event the Prospective Adoptive Parents are matched with a birth mother but no placement ultimately occurs, the Agency shall continue its best efforts, as set forth in paragraph I.A., above, to cause a placement to occur within the two year term of this agreement, with no additional fee required. Any "At-Placement" fees, except for medical expenses actually incurred by the Agency, will be refunded. Section V of the Domestic Contract addressed the subject of "assumption of risks and release of agency liability." It provided, in pertinent part, as follows: In adoption placement situations there are risks which may or may not be known to the Prospective Adoptive Parents, the Agency, its staff, or others involved. Such risks usually involve legal or medical issues and may be either significant or of little concern. Notwithstanding the best efforts of the Agency and its staff and consultants, some risks may not be knowable or known. Acknowledging this, the Prospective Adoptive Parents hold the Agency harmless and assume the risks of adoption as follows: Change of Prospective Adoptive Parents' State of Resident. . . . Social and Medical History of Child. The Agency will provide the Prospective Adoptive Parents prior to "matching" with all available social and medical history of the birth mother, birth father and child to the extent deemed relevant by Agency staff. Any changes in information will be reported to the Prospective Adoptive Parents as they become known. At the earliest possible moment, but in any event prior to finalization of the adoption, the Prospective Adoptive Parents will be provided with written reports of this information. To a large extent, the information is obtainable only from the birth parents and is thus subject to unreliability. The Prospective Adoptive Parent(s) agree to hold Adoption Advisory Associates free from all liabilities arising from the provision of incorrect information. Gender and Other Characteristics of Child. The gender of a prospective adoptive child cannot always be accurately predicted at the time of matching, nor can the Agency predict an adoptive child's future personality, medical problems, learning disabilities, appearances or inherited characteristics. Non-availability of Identified ("Matched") Child for Adoption. While the Agency agrees to make every reasonable effort to see that a "matched" child is available for placement and adoption immediately after birth, the Agency is unable to guarantee such availability given the nature, extent, and variability of the legal and medical risks involved. The Prospective Adoptive Parents assume all risks, both known and unknown, that may at any time impair, delay, or preclude readiness or availability of a "matched" child for placement after birth. (It is specifically understood that Florida law precludes the possibility of the Agency entering into a placement contract with the birth parents prior to the birth of a child to assure placement.) Rights of Birth Father. The birth father of a child, whoever and wherever he is, has a right to due process of law with regard to all legal events concerning the child and he has a right to petition the court and make a claim, if he so desires, for the custody of the child unless he has surrendered the child for adoption, has executed a denial of paternity, or his parental rights have been terminated by a court of competent jurisdiction. The Agency's attorney will address birth fathers' rights as required by law. These efforts are dependent upon the Agency's receiving reliable information from birth mothers as to the identity and whereabouts of birth fathers. (The Prospective Adoptive Parents will be advised prior to matching if a birth mother states that she does not know the identity and/or location of the birth father.) Accordingly, the Prospective Adoptive Parents will hold the Agency harmless for any errors caused by misinformation provided by the birth mother to the Agency. Disruption of Placement. It is possible that a birth mother or birth father who has surrendered a child for adoption may make an attempt to revoke his or her surrender before finalization of the adoption. Should the Agency be unable, despite its best efforts, to resolve such a situation without resort to judicial proceedings, it may be the Agency's decision to return custody of the child to its birth mother and/or birth father unless, in its sole discretion, the Agency were to determine that some other plan, including remaining in the adoptive home, was in the best interests of the child. Should this be the case, the Prospective Adoptive Parents will have the option of undertaking the expense of any resulting judicial proceedings in an effort to maintain the placement, or may choose to relinquish the placement with no further rights or responsibilities. In any event, in the Agency's sole discretion, the child may be removed from the adoptive home and placed in Agency foster care until the child's final legal status is determined. Non-acceptance or Relinquishment of Placement. The Prospective Adoptive parents may, at any time, decline to accept placement of a particular child for adoption, or, having accepted placement, decline to continue such placement. Nevertheless, if after birth the Agency, within its sole discretion, determines the said child to be adoptable, the Prospective Adoptive Parents will be responsible for all costs relative to foster placement of the child and for all services to the extent other payors are not legally responsible, unless and until (a) an adoption with other parents is completed or (b) legal responsibility is accepted by other persons or agencies. Provided, however, that the Prospective Adoptive Parents will not be responsible for such costs if the Agency, in its sole discretion determines that said child is not adoptable for medical, social, or legal reasons. Agency Legal Error. . . . Risk of Error of Other Professionals. . . . Private Agreements With Birth Parent(s) Unenforceable. No promises or representations made to the Prospective Adoptive Parents by a birth parent are enforceable by the Agency or a court. Section VI of the Domestic Contract contained the following "miscellaneous" provisions, among others: Accurate Information from Prospective Adoptive Parents. The Prospective Adoptive Parents have completed Agency application materials and submitted a biographical photo album and certain required documentation, all of which are incorporated herein by this reference, and understand that any inaccurate information provided constitutes grounds for termination of this agreement by the Agency and forfeiture of any fees paid to the Agency. . . . D. Prospective Adoptive Parents as Agents for One Another. The Prospective Adoptive Parents are the agents for one another for the purpose of the Agency's reliance upon any communication, decisions, or agreements between the Agency and the Prospective Adoptive Parents. . . . Termination. This agreement shall terminate two (2) years from the date hereof or upon finalization of the adoption of a child placed by the Agency with the Prospective Adoptive Parents for that purpose, whichever occurs earlier. Provided, however, that the obligations of the Prospective Adoptive Parents to provide the Agency post-adoption pictures and written updates on the child's progress shall survive until the child is eighteen (18) years of age. The Agency, in its discretion, reasonably applied, may terminate its relationship with the Prospective Adoptive Parents, if it is determined by the Agency, after consultation with the Prospective Adoptive Parents, that the Agency's program and the Prospective Adoptive Parents' goals, expectations, and/or intentions regarding adoption are incompatible. Limitation of Actions. No claim in contract or tort arising from the obligations or subject matter of this agreement shall be maintained unless brought within one (1) year of the termination of this agreement. Entire Agreement/Severability. This agreement, including the Agency's current Summary of Estimate Fees & Expenses and Refund Policy, attached hereto, sets forth the entire, sole, and exclusive understanding of the parties. No promises or representations previously or contemporaneously made are enforceable. Any changes in this agreement must be in writing and signed by the party to be charged with any new or modified undertaking. If any portion or portions of this Agreement are found by a court of competent jurisdiction to be unenforceable, the remaining Agreement shall remain in full force and effect, except as provided elsewhere herein. The Domestic Contract (including the fee schedule included therein) was reviewed by the Department before it issued Petitioner a full-year regular license in 1998. At that time, the Department did not find the contract to be objectionable. Licensed Foster Homes Available for Petitioner's Use (Alleged Violations of Rules 65C-15.002(7) and 65C-15.025, Florida Administrative Code) In April of 1998, Petitioner submitted to the Department the materials necessary for Edward and Irene Petow to obtain a license to operate a foster home for Petitioner's use. 3/ The Department issued the Petows such a foster home license on May 10, 1998. The Petows' foster home license expired on April 30, 1999, and was not renewed. During the period that their license was in effect, the Petows were available to provide foster care services for children needing such services who had been placed in Petitioner's care. Jewish Adoption and Foster Care Options (JAFCO), which has been at all times material to the instant case a Florida- licensed foster care provider, 4/ is presently willing and available to provide foster care services to these children (pursuant to an agreement it has with Petitioner), as it has been since Petitioner's inception. 5/ Audit of Petitioner's Financial Records (Alleged Violation of Rule 65C-15.010(3), Florida Administrative Code) Petitioner has only had its financial records audited twice during the time it has been licensed. The first audit was completed in or around June of 1997, at which time a report of the audit was prepared and submitted to the Department. This audit was for the fiscal year ending April 30, 1997. (Petitioner's fiscal year runs from May 1 to April 30.) The accountant who conducted the audit, Aubrey Bourgeois, CPA, made the following "proposal" to Petitioner based upon his findings: Through the course of the audit process it was evident that the association administrator, Ms. Cheryl Eisen, had spent an enormous amount of time maintaining the financial records of the organization. We would like to propose that the accounting functions, including the bank reconcilliations and financial statement preparation be handled by our office on a monthly basis, therefore freeing Ms. Eisen for the day-to-day business and administrative duties. This would also allow us to prepare the accounting information according to generally accepted accounting principles. This would lessen the time needed to verify information during the year end audit. The only accounting functions that Ms. Eisen would need to continue to perform would be the cash receipts and cash disbursements. . . . In the licensing report, dated June 12, 1997, which was signed by the District Administrator and his staff and contained the recommendation that Petitioner "receive a regular child- placing license, effective June 14, 1997, expiring April 30, 1998," the following statement regarding Mr. Bourgeois' "proposal" was made: After reviewing all documentation, the department continues to have concerns regarding internal controls and the organizational structure of the governing body. The following changes are strongly recommended by the department: 1. The department agrees with the proposal submitted by the auditor, that the accounting functions, including bank reconciliations and financial statement preparation be handled by the accountant's office on a monthly basis. The auditor's report indicated several possible weakness in the internal control structure of the agency, under the present system. . . . At no time, however, did the Department ever order Petitioner to make this "change" proposed by Mr. Bourgeois. Petitioner did not follow the suggestion made by Mr. Bourgeois (and endorsed by the Department) because, in its opinion, it would have been too expensive for it to have done so. (Many small businesses, like Petitioner, do not have an accountant perform "accounting functions" on a monthly basis because of cost considerations.) Petitioner's inaction did not prevent it from obtaining a full-year regular license in 1998. As noted above, the 1998 "licensing report" prepared by Department staff, a copy of which Petitioner received along with its licensure certificate, indicated that the audit of Petitioner's financial records "need[ed] to be completed and submitted by June 30, 1998." The June 30, 1998, deadline passed without the Department having received any audit report from Petitioner. By letter dated October 14, 1998, Ms. Willson "remind[ed]" Ms. Eisen that the report of Petitioner's May 1, 1997-April 30, 1998, fiscal year audit, which Petitioner had been directed to file by June 30, 1998, had not yet been received by the Department and that it was "imperative" that the Department receive the report "as soon as possible" inasmuch as "[a]n annual audit is a requirement of the licensing process." By March 2, 1999, despite Ms. Willson's "remind[er]," the Department had still not received an audit report from Petitioner for the May 1, 1997-April 30, 1998, fiscal year. Accordingly, as indicated above, in her letter to Petitioner of that date advising Petitioner of relicensing requirements, Ms. Willson warned Petitioner that if it did not submit, on or before March 23, 1999, an audit report for the previous fiscal year, "corrective action" would be taken. On March 23, 1999, Petitioner provided the Department with an audit report for the fiscal year ending April 30, 1998. In April of 1999, Ms. Eisen was hospitalized with a broken arm and leg as a result of an accident. She was in the hospital and in in-patient rehabilitation for more than a month. During this period of time she was unable to gather the records Petitioner's accountant, Mr. Bourgeois, needed to complete the audit for the fiscal year ending April 30, 1999. On or about June 30, 1999, Petitioner delivered to Mr. Bourgeois the records necessary for him to complete an audit for the fiscal year ending April 30, 1999. By letter dated July 15, 1999, Petitioner informed the Department that the audit for the fiscal year ending April 30, 1999, would be completed on or about August 15, 1999. When Ms. Eisen received the Department's July 15, 1999, Notice of Intent, she instructed Mr. Bourgeois to discontinue work on the audit for the fiscal year ending April 30, 1999, because, as she later explained to the Department, she wanted "to avoid the expense of a report [Petitioner was] no longer obligated to provide to the Department." Upon subsequently learning that the Department had granted Petitioner a one-year Restricted Certificate, effective July 31, 1999, Ms. Eisen requested Mr. Bourgeois to resume his work on the audit. By letter dated August 10, 1999, Ms. Eisen advised Ms. Willson that the audit would "be delayed until September." As of the time of the final hearing in the instant case, the audit of Petitioner's financial records for the fiscal year ending April 30, 1999, had not yet been completed. Verification of Screening Requirements (Alleged Violation of Rule 65C-15.016(2)(b), Florida Administrative Code) Before working as outside legal counsel for Adoption Connection, Ms. Eisen (who is the only remaining non-clerical employee of Petitioner's 6/ ) was screened by Adoption Connection and, on or about September 2, 1993, she received "clearance" from Adoption Connection (based upon Adoption Connection's determination that she met screening requirements). Ms. Oken and Ms. Petow also had been screened by, and received "clearance" from, Adoption Connection. Ms. Oken was fired by Adoption Connection in March of 1995, at the same time Ms. Eisen's services were terminated by the agency. Ms. Petow continued working for Adoption Connection until some time prior to February 2, 1996 (the date she was hired by Petitioner). When Petitioner was seeking its initial license in 1996, Ms. Willson's predecessor advised Ms. Eisen that the "clearance" she, Ms. Oken, and Ms. Petow had received from Adoption Connection could be "transferred" and that she and her colleagues did not need to undergo re-screening to be employed by Petitioner. 7/ As noted above, the 1998 "licensing study" prepared by Department staff noted that "[s]creening documentation ha[d] been kept up-to-date," but that Ms. Eisen would "be due for 5-year re- screening in July 1998, which would include FDLE and local law checks." Ms. Oken and Ms. Petow (both of whom continued to work for Petitioner through at least June 30, 1999) were never re- screened. As of the time of the final hearing in the instant case, Ms. Eisen had not been re-screened either; however, subsequent to the close of the hearing (as reflected by Petitioner's post-hearing submissions supplementing the evidentiary record), she submitted to re-screening. The criminal records check revealed no disqualifying offenses. (The evidentiary record is silent as to whether the Florida Protective System Abuse Registry portion of the re-screening has been completed.) Training of Petitioner's Staff (Alleged Violation of Rule 65C- 15.018(2), Florida Administrative Code) On June 30, 1999, when Ms. Willson reviewed Petitioner's personnel files, Petitioner had four non-clerical employees: Ms. Eisen; Ms. Oken; Ms. Petow, who, in addition to providing foster care services, worked for Petitioner as a birth mother support coordinator; and Marla Gross, Esquire, who was a staff attorney. Petitioner's personnel file for Ms. Eisen revealed that: her date of hire was February 2, 1996; during her last full year of employment (from February 2, 1998 to February 1, 1999), she had received "additional training" by attending the "Governor's Children Summit" (on February 12, 1998), The Florida Bar Family Law Section's "Legislation Seminar" (which lasted in excess of 15 hours over a three-day period, from March 26, 1998 to March 28, 1998), a "NACAC" 8/ conference (in August of 1998 9/ ), and an "Assoc. Fam. and Con. Courts" conference (in October of 1998 10/ ); and since February 2, 1999, she had obtained further "additional training" by participating in the activities of the "S.W. Fla. Adopt. Task Force" (in March of 1999). Petitioner's personnel file for Ms. Oken revealed that: her date of hire was February 2, 1996; during her last full year of employment (from February 2, 1998 to February 1, 1999), she had received "additional training" by attending a three-hour presentation given on February 20, 1998, on "domestic violence and clinical interventions" sponsored by Women in Distress of Broward County, Inc., a two-hour program held on March 9, 1998, on "domestic abuse" sponsored by the Jewish Federation of South Palm Beach, and a three-hour seminar conducted on January 19, 1999, on "psychological issues in [the] treatment of sexual violence" sponsored by the 45th Street Mental Health Center, Inc.; and since February 2, 1999, she had obtained further "additional training" by attending a two-hour seminar conducted on March 23, 1999, on "violent attachments" sponsored by the 45th Street Mental Health Center, Inc. Petitioner's personnel file for Ms. Petow revealed that: her date of hire was February 2, 1996; during her last full year of employment (from February 2, 1998 to February 1, 1999), she had received "additional training" by attending the "Governor's Children Summit" on February 12, 1998, and by being a "part-time student pursuing [a] social work degree." Petitioner's personnel file for Ms. Gross revealed that Ms. Gross' date of hire was January 12, 1999, and contained no indication that she had received any training in the five and a half months that she had been employed by Petitioner (from January 12, 1999 to June 30, 1999). Foster Parent Training (Alleged Violation of Rule 65C-15.027(1), Florida Administrative Code) Petitioner did not provide foster parent training to the Petows. Ms. Eisen was under the impression that Petitioner, as a private agency, was not required to provide such training. She discussed the matter with Jodi Peterson, a Department employee assigned to the Department's District 9 MAPP Unit, who, on June 17, 1999, by facsimile transmission, advised Ms. Eisen that, "[a]s [Ms. Eisen] had said, trng. hrs. aren't required for private relicensure." 11/ Pre-Placement Screening: The James Case (Alleged Violation of Rule 65C-15.028, Florida Administrative Code) Lori and Jesse James were clients of Petitioner's. Ms. James was a Florida-licensed attorney, who was not engaged in the active practice of law. (She worked for a social services agency in Tampa.) The Jameses were matched with a birth mother residing in Illinois. The birth mother gave birth in a hospital in Chicago. The child tested positive for cocaine exposure at the time of birth. Accordingly, a plan for placement with someone other than the birth mother had to be devised before the child could be released from the hospital. On August 12, 1998, after the child was born, a home study was conducted in the James home. Subsequently, Ms. James left to go to Chicago to take custody of the child and bring the child back to her and her husband's home in Tampa. Mr. James did not accompany his wife on this trip. The child's guardian consented to the child's adoption by the Jameses and took the necessary steps to have the child delivered to Ms. James, who, until her departure from Chicago, kept the child in her hotel room. At the time of the placement of the child with Ms. James, a determination had not been made that both Ms. and Mr. James met screening requirements. It was not until August 20, 1998, that all background screening of the Jameses was completed and Petitioner was able to conclude that the Jameses "met the pre-adoption requirements of Fla. Statutes 63.092(2)(b)." Ms. James returned from Chicago to her home in Tampa with the child sometime after August 20, 1998. Services to Adoptive Parents (Alleged Violation of Rule 65C- 029(2) and (3), Florida Administrative Code At all times material to the instant case, Petitioner's social worker has had post-placement contact with each adoptive family (who has adopted through Petitioner) on at least a monthly basis prior to the finalization of the adoption (which takes at least 90 days from the date of placement). Sometimes (usually no earlier than the third month after placement) the contact has been made by telephone. There have been instances where a month has passed without Petitioner's social worker having had face-to-face contact with an adoptive family; however, Petitioner, in good faith, believed that, for purposes of compliance with Rule 65C- 15.029(2), Florida Administrative Code (which mandates that the agency's social worker "visit" with adoptive parents "at least monthly, after the placement of a child, until the adoption is finalized"), "visiting" by telephone was acceptable. Family Case Records (Alleged Violation of Rule 65C-15.032(1), Florida Administrative Code) The record lacks persuasive competent substantial evidence establishing that, in any particular case, Petitioner has failed to include in its files available information (concerning the family of a placed child) that Rule 65C- 15.032(1), Florida Administrative Code, requires a child-placing agency to include in its records. Adoptive Home Records (Alleged Violation of Rule 65C-15.034(5) and (8), Florida Administrative Code) The record lacks persuasive competent substantial evidence establishing that, in any particular case, Petitioner has failed to include in the files it maintains the summaries of adoptive family contacts required by Rule 65C-15.034(5) and (8), Florida Administrative Code. Compliance with INS Regulations (Alleged Violation of Rule 65C- 15.036(3), Florida Administrative Code) In or about 1999, Petitioner received a telephone call from Cynthia Reilly, the estranged adult daughter of a client of Petitioner's, who alleged that her father had been abusive when she had been a child. Ms. Reilly's father and his wife (Ms. Reilly's step-mother) were seeking to adopt a Romanian child with Petitioner's assistance. Petitioner had already prepared a home study and submitted it to the Immigration and Naturalization Service (INS) at the time it received Ms. Reilly's telephone call. There was no "verifiable record" that the abuse about which Ms. Reilly complained had occurred. Petitioner contacted Ms. Reilly's father, who denied the allegations made by his daughter, and requested him to undergo psychological testing. The father complied. Following the preparation of the psychological report, Petitioner submitted it, along with an addendum to the previously submitted home study, to the INS. INS requested that further psychological testing be performed. Petitioner advised Ms. Reilly's father of this request, and he agreed to undergo such additional testing. The psychologist who conducted the additional testing found no impediment to Ms. Reilly's father becoming an adoptive parent, and so indicated in the report he prepared. This report, like the first psychological report, was sent to INS, together with another addendum to the home study. At the time it first heard from Ms. Reilly, Petitioner had asked her to reduce her allegations against her father to writing and to provide her written statement to Petitioner. After receiving the reports of the psychologists, Petitioner repeated its request Ms. Reilly, however, continued to refuse to provide Petitioner with any written allegations against her father. She did, though, furnish the INS with such a document. At first, she refused to give INS permission to provide Petitioner with a copy of this document, but she finally acquiesced. After reviewing Ms. Reilly's written allegations against her father, Petitioner determined that an independent evaluation of the case should be performed. Sarah Franco of JAFCO performed this independent evaluation. She concluded that family counseling was necessary. When Petitioner told Ms. Reilly's father that there would need to be family counseling, her father told Petitioner, "Well, I'm finished with you all." Ms. Reilly's father and Petitioner thereupon terminated their contractual relationship. Release of Information Regarding Romanian Adoption Law The record lacks persuasive competent substantial evidence that Petitioner, at any time, knowingly disseminated inaccurate or misleading information about the law governing adoptions of Romanian children. Client/Birth Mother Complaints Concerning Petitioner's Fees (Alleged Violation of Rule 65C-15.010(4)(b), Florida Administrative Code) and "Business Practices" The Kellers (Ted and Susan) and Petitioner entered into a Domestic Contract, which had an effective date of December 29, 1996, and an expiration date of December 26, 1998. During the first year of the contract, the "biographical photo album" (referred to in Section VI of the contract) that the Kellers had submitted to Petitioner was shown "a few times," but the Kellers were not selected by any of the birth mothers who had viewed the album. During the second year of the contract, the Kellers were selected by a birth mother from Alabama. The birth mother came to South Florida to meet with, and be counseled by, members of Petitioner's staff. Petitioner paid for the birth mother's transportation expenses. The birth mother spent three or four days in the South Florida area, during which time she stayed in an apartment rented and maintained by Petitioner for the purpose of housing out-of- town birth mothers. The birth mother assured the Kellers that she would, following the birth of her child, consent to the Kellers adopting the child. Petitioner made a good faith, but unsuccessful, effort, prior to the child's birth, to contact the child's birth father. Based upon what it had heard from others, however, Petitioner was led to believe that the father would also give his consent to the adoption. Petitioner, though, never guaranteed the Kellers that "there would not be a problem" with obtaining the birth father's consent. The birth mother decided to give birth in Alabama, rather than in South Florida. The child was born in or about May of 1998. Petitioner contacted an Alabama attorney to help handle the adoption. When Ms. Eisen learned that there might be a problem with the adoption, she traveled to Alabama at Petitioner's expense. The adoption "fell-through" because the birth mother and father, after the birth of the child, refused to give their consent. The Kellers subsequently expressed an interest in adopting a Romanian child. On October 15, 1998, the Kellers and Petitioner entered into an International Adoption Services Contract (International Contract). With respect to the fees to be paid by the Kellers to Petitioner under the International Contract, the Kellers were given a credit for monies that they had paid Petitioner pursuant to the Domestic Contract. Section I of the International Contract described the "agency's undertaking, services and exclusions" and provided, in part, as follows: Agency's Undertaking. The Prospective Adoptive Parents request, and the Agency is willing to provide, international adoption services with the goal of providing to the Prospective Adoptive Parent(s) an offer of placement of an adoptable child from the country of Romania ("the home country") in the Prospective Parent'(s') home at the earliest possible moment. The Agency agrees to make a diligent effort to place such a child with the Prospective Adoptive Parent(s) in accordance with the social service policies and procedures of the Agency, as established and from time to time amended by the Agency's Board of Directors, and in accordance with federal and Florida statutory and administrative law, and the laws of the home country. Agency Services. The Agency's international adoption services include, but are not limited to, every aspect of assisting the Prospective Adoptive Parent(s) through departure for the home country and upon return, including interface with the United States Immigration and Naturalization Service (INS), and coordination with the agency in the home country ("the foreign agency"). . . . Section II of the International Contract addressed the subject of "fees." It provided as follows: Basis for Determining Fees. Pursuant to Florida Administrative Code section 65C- 15.019(4)(b), the Agency's adoption fees have been established based on the reasonable costs of the following services for the total international adoption program, including but not limited to: (1) home study services; (2) counseling services; (3) legal services; (4) foster care services; (5) pre- and post- placement social services; (6) contracted services with foreign agencies; (7) other necessary services, including "dossier" preparation; and (8) agency facilities and administrative costs. Estimated Fees. The Agency's estimated fees statement ("Fee Statement") is attached and incorporated in this agreement by this reference. The Prospective Adoptive Parent(s) Acknowledge(s) the Fee Statement has been thoroughly reviewed by him/her/them with Agency staff and it is completely understood and accepted. Timing and Manner of Payment of Fees. A Home Study Services Fee will have been paid to the Agency prior to execution of this agreement. The "At Contract" fees shown on the Fee Summary are due upon the execution of this agreement, after the Agency's approval of the Prospective Parent's(s') home study. The "Upon Match" fees shown on the Fee Statement, payable to "AAA Escrow Account" ("Escrow") are due in the form of a cashier's check at the time the Prospective Adoptive Parent(s) accept(s) the match, as described in paragraph III, below. Section III of the International Contract addressed the subject of "matching, placement, and finalization of adoption." It provided as follows: Matching. Identification of a child for adoption by the Prospective Adoptive Parent(s) ("matching") will occur by means of his/her/their receiving through the Agency pictures and background information on children fitting their specific requests as to age, gender, medical and social background, within the limitations generally known to attend adoptions from the home country, as more particularly described to the Prospective Adoptive Parents by the Agency. Placement. Placement of the child with the adoptive parents occurs in the country, to which at least one of them (if a married couple) must travel to take placement. Finalization of Adoption. The final legal adoption of the child with the adoptive parents will occur in the home country prior to the child's departure to the United States with the Prospective Adoptive Parent(s). Among the subjects addressed in Section V of the International Contract was "re-finalization of adoption." The following provision in Section V dealt with this subject: D. Re-Finalization of Adoption. The Prospective Adoptive Parent(s) agree(s) to legally re-finalize the adoption of the child in the state where the Prospective Adoptive Parent(s) reside(s) as soon as permitted under applicable state law. For Florida residents, legal fees paid to the Agency include the expense of re-finalization of adoption in Palm Beach County, Florida, by the Agency's legal counsel. Non-Florida residents are responsible for obtaining and compensating counsel in their home state to re-finalize the adoption. Non-residents' home states may require local social worker's reports, filing fees, and other expenses which are the sole responsibility of the Prospective Adoptive Parent(s). Nevertheless, it is understood that the adoption is legally finalized in the home country before the child immigrates, such that all rights and responsibilities for the child pass to the Prospective Adoptive Parent(s) at that time. Paragraph E of Section V of the International Contract addressed the subject of "non-placement" and provided as follows: In the event the Prospective Adoptive Parent(s) are matched with a child but no placement ultimately occurs, the Agency shall continue its best efforts, as set forth in paragraph I.A., above to cause a placement to occur, unless the Prospective Adoptive Parent(s) elect to cancel the contract and receive a refund of all fees remaining in Escrow pursuant to this contract. In Section VI of the International Contract, the subject of "assumption of risks and release of agency liability" was addressed. This section provided as follows: In adoption placement situations there are risks which may or may not be known to the Prospective Adoptive Parent(s), the Agency, its staff, consultants or other third parties involved, hereinafter referred to collectively as "the Agency" in the context of limitations or release of liability. Such risks usually involve legal or medical issues and may be either significant or of little concern. Notwithstanding the best efforts of the Agency and its staff and consultants, some risks may not be knowable or known. Acknowledging this, the Prospective Adoptive Parents hold the Agency harmless and assume the risks of adoption as follows: Change of Prospective Adoptive Parent's(s)' State of Residence. . . . Social and Medical History of Child. . . . Gender and Other Characteristics of Child. Though the Prospective Adoptive Parent(s) may specify the gender of the child to be adopted prior to matching, the Agency cannot predict an adoptive child's future personality, medical problems, learning disabilities, appearance or inherited characteristics. Age of Child at Time of Placement/Non- availability of Identified ("Matched") Child for Adoption. It is anticipated that your child will be no more than eight (8) months old at the time you travel to the home country to take placement of him/her for adoption. This is based upon the normal course of the process for freeing a child for adoption and approving a U.S. placement as that process is presently defined. Nevertheless, delays could occur such that the child would be older at the time of placement. Should a delay occur such that Child will be more than one year old at the time of immigration, the Prospective Adoptive Parent(s) may elect not to take placement of the child, but request a match with another child at the earliest possible moment, or cancel this contract and receive a refund of all fees remaining in Escrow. Additionally, while the Agency agrees to make every reasonable effort to see that a "matched" child remains available for placement and adoption from the home country, the Agency is unable to guarantee such availability given the nature, extent, and variability of the political, legal and medical risks involved. The Prospective Adoptive Parent(s) assume all risks, both known and unknown, that may at any time impair, delay, or preclude the readiness of availability of a "matched" child for placement for adoption. Non-acceptance of Placement. An unadoptable child is a child suffering a medical condition that would cause the child to have other than a normal quality of life, as apparent at the time of placement, or that is not legally free for adoption. The Prospective Adoptive Parent(s) may, at any time, decline to accept placement of an unadoptable child, and request a match with another child at the earliest possible moment, or cancel this contract and receive a refund of all fees remaining in Escrow. Risk of Error of Other Professionals. . . . Private Agreements With Third Parties Unenforceable. No promises or representations made to the Prospective Adoptive Parents by any third party are enforceable by the Agency and are not the responsibility of the agency to enforce. Section VII.G. of the International Contract covered the subject of "termination" and provided as follows: The Agency, in its discretion, reasonably applied, may terminate its relationship with the Adoptive Parent(s), if it is determined by the Agency, after consultation with the Prospective Adoptive Parent(s), that the Agency's program and Prospective Adoptive Parent's (s') goals, expectations, and/or intentions regarding adoption are incompatible. Section VII.H. of the International Contract addressed the subject of "entire agreement/severability" and provided as follows: This agreement, including the Agency's current Fee Statement, and the Agency's agreement with the foreign agency, both attached hereto, sets forth the entire, sole and exclusive understanding of the parties. No promises or representations previously or contemporaneously made are enforceable. Any changes in this agreement must be in writing and signed by the party to be charged with any new or modified undertaking. If any portion or portions of this Agreement are found by a court of competent jurisdiction to be enforceable, the remaining Agreement shall remain in full force and effect, except as provided elsewhere herein. The "release of previous contracts" was addressed in Section VII.I of the International Contract, which provided as follows: This agreement supercedes any previous contracts between the parties and releases the parties from all obligations thereunder. An Addendum to the International Contract was executed by the Kellers on October 19, 1998, and by Petitioner on October 20, 1998. It provided as follows: The agreement for international adoption services ("the Agreement") of even date by and between Adoption advisory Associates ("the Agency") and Susan and Ted Keller ("Susan and Ted") is hereby amended as follows: The home study update fee shall be $750 The fees due "at contract" shall be $852.41 The fees due "upon match" shall be payable as follows: $6,416.68 due upon match; $6,416.66 due 90 days later. $6,416.66 due 30 days before the anticipated date for departure to Romania. Notwithstanding the effect of the foregoing timetable of payments, all fees shall be paid in full prior to departure for Romania. Should Susan and Ted elect to cancel the Agreement as provided in paragraph V.E., VI.D., and VI.E. thereof, the refund amount due shall be $19,250, in full settlement of all Agency obligations hereunder. Provided, however, that the Agency shall not be liable for refund of the $2,500 paid to the foreign agency until sixty (60) days after receipt by the Agency of written notification by Susan and Ted of their cancellation of the contract. On or about December 15, 1998, Petitioner advised the Kellers by facsimile transmission that two Romanian children had been referred to Petitioner. After being provided with health histories of the children, the Kellers indicated, in a December 16, 1998, facsimile transmission, that they were "interested" in one of the children, a boy who had been surrendered by his natural parents and was, at the time, approximately one month old, and that they looked forward to "see[ing] a picture [of the boy] and get[ting] more information [about him] from Romania." Not having received any additional materials concerning the boy, the Kellers, on January 3, 1999, informed Petitioner in writing that they had "decided to cancel [their] contract with [Petitioner], as there seemed [to them that there was] little or no reason to believe that anything [would] materialize." In their written correspondence, the Kellers demanded, among other things, "that $3750.00 be returned" to them. Petitioner did not obtain photographs of the boy until January 11, 1999. Upon receiving the photographs, Petitioner sent them to the Kellers. Later that day, Ms. Eisen spoke with Mr. Keller, who reiterated his and his wife's desire to cancel the International Contract they had entered into with Petitioner. On January 13, 1999, Ms. Eisen sent the following letter to the Kellers: Pursuant to your letter dated January 3, 1999, and as agreed in my telephone conversation with Ted on January 11, 1999, we are cancelling our contract with you dated October 15, 1998, and are sending you the following: your original home study dated 12/29/96; your home study update dated 9/30/97; your DCF Protective Services clearance dated 5/28/98 (all other clearances are now more than one year old and thus outdated); your photo album; our check number 11186 in the amount of $1,602.41. With regard to the refund check, I was able to bring the matter before the agency's Board of Directors last evening at its quarterly meeting. The Board unanimously approved cancellation and a refund in the amount of the check tendered upon signing your international placement contract three months ago, notwithstanding that we have already referred to you a child, Ilie, born November 16, 1998, which you indicated you wished to pursue. Michael and Rasamee Wolf were residents of Maryland. They had previously adopted a child with the assistance of Adoption Connection. In or about June of 1996, the Wolfs submitted to Petitioner an Application for Adoption, a family photograph album, a copy of a home study that had previously been done, and a check made payable to Petitioner. It took Ms. Eisen approximately ten days to contact Mr. Wolf (who traveled quite a bit) and advise him there were "additional requirements that had to be met before [Petitioner] could enter into a contract with [him and his wife]." Mr. Wolf instructed Ms. Eisen to "deposit the check" and told her that he and his wife would "work on getting the stuff in." Ms. Eisen followed Mr. Wolf's instructions and deposited the Wolfs' check. In December of that same year (1996), after some delay, the Wolfs provided Petitioner with the required materials. Thereafter, on December 17, 1996, Petitioner and the Wolfs entered into a Domestic Contract. Prior to the expiration of the contract, after having been offered a match by Petitioner, the Wolfs informed Petitioner that they wished to cancel the contract. Thereafter, Ms. Eisen sent the Wolfs the following letter dated September 22, 1998: This is to confirm my conversation with Mike last week, when we offered you placement of Melanie's child born in Texas on September 11, that you have decided to withdraw from our list of waiting parents. We know this was not an easy decision, but recognize that only you know what is best for your family at this time. Our two-year contract with you expires on December 17, 1998. It is my understanding that you wish to cancel that contract, and we concur. By the contract's terms, there is no refund due to you of fees previously paid. Please sign and return the enclosed copy of this letter to indicate your cancellation of our contract. Your album is being returned under separate cover. We wish you the best and hope to keep in touch. By letter dated October 23, 1998, Michael Salnick, Esquire, an attorney retained by the Wolfs, advised Petitioner that the Wolfs disagreed that they were not entitled to a refund and he demanded that Petitioner "send a check in the amount of seven thousand five hundred dollars to [Mr. Salnick's] office payable to Michael Wolf." Petitioner's Board of Directors, at its January 12, 1999, quarterly meeting, voted unanimously not to refund any monies to the Wolfs. Ms. Eisen notified Mr. Salnick of the Board of Directors' action by letter dated January 13, 1999. In August of 1996, Gilda Marin, a single woman in her forties, entered into a Domestic Contract with Petitioner. Ms. Marin paid Petitioner approximately $7,500.00. During the home study, Ms. Marin stated that she wanted "to adopt a newborn Cuban or Caucasian baby girl in good physical and mental health." In addition, in the "Special Situations Questionnaire" that she filled out, she indicated that she would accept an "interracial infant" if it was "Cuban/Caucasian." During the two years that her contract with Petitioner was in effect, Ms. Marin was offered a biracial baby and no other placements. Following the expiration of her contract, she filed a complaint with the Department after being told by Petitioner that she was not entitled to any refund. Upon learning of Ms. Marin's complaint, Ms. Eisen sent the following letter, dated August 9, 1999, to Ms. Marin: Enclosed you will find: (1) a summary by the Florida Department of Children & Families of your complaint against our agency and (2) our response to your complaint. As you will see from our response, we discovered a very big and very regrettable mistake in our handling of your case as a result of the Department's investigation of your complaint. Specifically, we were looking to find for you a child, originally a girl, of Cuban/Caucasian background, not of Cuban or Caucasian background. We assume the Department has already informed you of our desire to offer you a Romanian placement with no "domestic agency fee" charge (a savings of $8,500), as set forth in our response. Though we have not heard back as to your reaction, we have included your name on a list of our current clients we recently submitted to the Department, just in case you might still be interested in considering Romanian adoption. Gilda, I personally hope you will accept our sincere apology for our error in handling your case, and that you will let us make it up to you as proposed. I would like the opportunity of meeting with you at your earliest convenience to discuss the entire matter and, if you are interested, go over what you can expect in terms of time, etc., until match and placement. I would also like you to meet the attorney I hired in January to be exclusively responsible for overseeing the Romanian program. She is presently in Romania, but will return day after tomorrow, so we could see you as early as Thursday. I know that this a particularly busy time for you at the law school, so we would be happy to come to you, either at work or at home. I hope I have managed to convey the depth of our remorse for the disappointment and upsetment we caused you. I know you hesitated to formalize your complaint against this agency, which causes me to believe there may be hope of salvaging our relationship. Please let us hear from you. Ms. Marin responded to Ms. Eisen's August 9, 1999, letter by writing Ms. Eisen and informing her that she did "not wish to continue working with Adoption Advisory Associates any further." There has been no further communication between Ms. Marin and Petitioner. Frank and Suzanne La Barbera entered into a Domestic Contract with Petitioner on January 30, 1997. Inserted on the bottom of the first page of the contract was the following handwritten notation that was initialed by Ms. Eisen and the La Barberas: "No HIV, unsightly facial deformities, blindness, deafness or other life-altering or threatening conditions as known at the time of placement." Before they signed the contract, the La Barberas stated to Petitioner that they had "concerns" that two years (the length of the contract) might not be enough time for Petitioner to find a match for them. While Petitioner, in response to these "concerns" voiced by the La Barberas, may have (truthfully) indicated that, up until that point in time, it had never failed to offer a client a placement, at no time did it guarantee the La Barberas or any other prospective adoptive parent(s) that, prior to the expiration of the contract, they would be offered a placement. Notwithstanding their concerns, the La Barberas entered into a contractual relationship with Petitioner. As Ms. La Barbera testified, they were "desperate." The La Barberas paid Petitioner approximately $6,600.00. Shortly after they signed the Domestic Contract, the La Barberas were advised that they were matched with a birth mother. The La Barberas met with the birth mother in the hospital after the child was born (in or about March of 1997). Following the meeting, the birth mother decided she did not want her child to be placed with the La Barberas and, therefore, no such placement was made. A few months later, the La Barberas were offered a match by an attorney, Stuart Horowitz, Esquire. After seeking and receiving (at no additional cost) Ms. Eisen's legal advice on the matter, the La Barberas declined Mr. Horowitz's offer. In August of 1997, the La Barberas were considering taking a cruise/vacation for which they had to make a nonrefundable deposit. On or about August 17, 1997, they telephoned Petitioner to find out if there were "any prospects of a match for them" that might interfere with their vacation plans. At the time, Petitioner knew of no such immediate "prospects" and so informed the La Barberas. On or about August 19, 1997, the La Barberas made reservations and paid $2,458.00 (by credit card) toward their cruise/vacation. On or about August 23, 1997, Petitioner contacted the La Barberas and told them that it had a match for them. Rather than go on the cruise/vacation they had paid for, the La Barberas chose to stay in South Florida to be at the hospital when the birth mother with whom they had been matched gave birth to her child. The La Barberas lost "close to $2,000.00" of the $2,458.00 they had paid toward their cruise/vacation. When the child was born, it had a cleft lip. Upon being shown the child and noticing the child's cleft lip, Ms. La Barbera ran from the room crying. The La Barberas decided not to take the child. The child was thereupon placed with another couple. Approximately, four weeks after the child was born, the child's lip was repaired. Following the La Barberas rejection of the child, Petitioner's social services director recommended to them that they undergo counseling, a recommendation that they refused to follow. No other placements were offered to the La Barberas during the remainder of the term of their contract with Petitioner. David and Paula Bergeron entered into a Domestic Contract with Petitioner on October 6, 1998. They paid Petitioner approximately $11,500.00 in "contract fees" on that same date. On the agency Application for Adoption and the Department's Adoption Home Application forms that they filled out and submitted, the Bergerons falsely stated that they had never been arrested. Background screening revealed that, contrary to the assertions the Bergerons had made on the aforementioned forms, both of them had arrest records. Ms. Eisen, after learning about the Bergerons' arrest records, asked them to meet with her to explain why they had not revealed these arrests on their applications. At the meeting, Ms. Bergeron claimed that she had forgotten about her prior arrests (which were for shoplifting in 1974 and possession of "dangerous drugs" in 1975), an explanation that Petitioner did not deem to be credible. When he was asked about his failure to disclose his prior arrests, Mr. Bergeron told Ms. Eisen, "I thought that it was your job to do your homework and . . . its too bad. Now that you have discovered it, it's your problem." Following Ms. Eisen's meeting with the Bergerons, she brought the matter of the Bergerons' lack of candor regarding their arrest records to the attention of Petitioner's Board of Directors. By letter dated November 11, 1998, which read as follows, Ms. Eisen informed the Bergerons of the action taken by the Board of Directors: As you know, our Board of Directors considered last night the Executive Directors' recommendation to cancel the agency's domestic adoption services contract with you in light of certain matters of a criminal nature which you failed to disclose in your application to adopt. The Board decided to accept the recommendation of the Executive Directors. Accordingly, you are hereby notified of cancellation of our contract pursuant to section VI, thereto, which provides as follows: "A. Accurate Information from Prospect[ive] Adoptive Parents. The Prospective Adoptive Parents have completed Agency application materials . . . and understand that any inaccurate information provided constitutes grounds for termination of this agreement by the Agency and forfeiture of any fees paid to the Agency." Notwithstanding that the terms of the contract do not entitle you to any refund of contract fees, the Board has authorized a refund of $5,000.00 pursuant to the spirit of the general refund policy shown on the back of the Fee and Expense summary attached as the last page of the contract. A check in that amount and your photo album will be sent to you within fifteen (15) days. On or about November 27, 1998, Petitioner sent the Bergerons a refund check in the amount of $5,000.00, which the Bergerons subsequently cashed. In December of 1997, Mitchell and Tamra Brandt met with Ms. Eisen and Ms. Oken to discuss the possibility of Petitioner providing the Brandts with domestic adoption services. During the meeting, the Brandts were shown, but never asked to sign, a Domestic Contract. Although they did not enter into a Domestic Contract with Petitioner, the Brandts did pay Petitioner $1,500.00 to conduct a home study. Everything that needed to be done to complete the home study, including background screening, was done. Background screening revealed that Mr. Brandt had been arrested for grand theft in 1989. On the Application for Adoption form that the Brandts filled out on or about January 28, 1998, and submitted as part of the home study, they failed to disclose this arrest. Background screening further revealed that there had been a report received and investigated by the Boca Raton Police Department on July 13, 1997, that Mr. and Ms. Brandt were involved in a "domestic disturbance." The police report reflected that Ms. Brandt had told the investigating officer that Mr. Brandt had, earlier that evening, "pushed her out their vehicle." Following the completion of the home study, Petitioner advised the Brandts that, if they did not undergo counseling, Petitioner would not be able to "approve" their home study and enter into a contract to provide them adoption services. The Brandts chose not to undergo counseling. Instead, they asked Petitioner for a refund of the $1,500.00 they had paid for the home study. Petitioner refused to give the Brandts a refund. Subsequently, the Brandts went to another child- placing agency, which, for $1,500.00 (the same amount that Petitioner had charged the Brandts), performed a home study and later assisted the Brandts in adopting a baby girl. The record lacks persuasive competent substantial evidence establishing the amount of the fees and costs paid by the Jameses to Petitioner, and the amount of other expenses they incurred, in connection with their adoption of the child with whom they had been matched by Petitioner. On June 30, 1999, Vincent and Patricia Durante entered into an International Adoption Services Contract with Petitioner (the Durantes' International Contract). The provisions of the Durantes' International Contract were substantially similar in all material respects, except as noted below, to the provisions of the (original) International Contract between the Kellers and Petitioner set forth above (the Kellers' International Contract). Unlike the first paragraph of Section VI.D. of the Kellers' International Contract, Section VI.D. of the Durantes' International Contract provided as follows: Age of Child at Time of Placement/Non- availability of Identified ("Matched") Child for Adoption. It is anticipated that your child will be no more than TBD* months old at the time you travel to the home country to take placement of him/her for adoption. This is based upon the normal course of the process for freeing a child for adoption and approving a U.S. placement as that process is presently defined. Nevertheless, delays could occur such that the child would be older at the time of placement. Should a delay of more than 4 months occur, the Prospective Adoptive Parents may elect not to take placement of the child, but request a match with another child at the earliest possible moment. Unlike the Section VII.G. of the Kellers' International Contract, Section VII.G. of the Durantes' International Contract provided as follows: Termination. This agreement shall terminate two years from the date hereof or upon finalization of the adoption of a child placed by the Agency with the Prospective Adoptive Parents for that purpose, whichever occurs earlier. Provided, however, that the obligations of the Prospective Parents to provide to the Agency post-adoption pictures and updates on the child's progress shall survive until the child is eighteen (18) years of age. The Agency, in its discretion, reasonably applied, may terminate its relationship with the Prospective Adoptive Parents, if it is determined by the Agency, after consultation with the Prospective Adoptive Parents, that the Agency's program and the Prospective Adoptive Parents' goals, expectations, and/or intentions regarding adoption are incompatible. The Durantes paid Petitioner approximately $7,000.00. On or about July 6, 1999, the Durantes telephoned Petitioner and advised that they had heard of a possible adoption opportunity in California that they were interested in investigating. On or about July 8, 1999, Petitioner sent the Durantes the following letter: Based on your call to us on Tuesday, July 6th, we understand that you would like to come in and discuss some issues related to a potential domestic adoption situation. As such, Cheryl and Sally will be meeting with you and Vince on Tuesday, July 13th. Please note that we have ceased work on your international adoption file until such time and that this will delay the current processing of your paperwork. If you have any questions, please do not hesitate to call. Ms. Eisen and Ms. Oken had a lengthy meeting with the Durantes on July 13, 1999, concerning the "potential domestic adoption situation" in California. The Durantes were not charged any additional monies for the time Ms. Eisen and Ms. Oken spent meeting with them. In or about August of 1999, the Durantes advised Petitioner that the "potential domestic adoption situation" in California had fallen through and that they were once again interested in pursuing an international adoption. Petitioner thereupon worked with the Durantes to gather the documentation that would be necessary to effectuate an international adoption. The Durantes had indicated that they wanted to adopt a girl. In or about October of 1999, Petitioner informed the Durantes that there was a Romanian girl named Elena potentially available for adoption through Petitioner. On or about October 12, 1999, the Durantes got back with Petitioner and advised that they did not want to be considered as potential adoptive parents for Elena. By letter dated October 21, 1999, the Durantes' attorney, Holly Davidson Schuttler, Esquire, requested a refund of the monies the Durantes had paid Petitioner. Petitioner responded to this request by letter dated October 25, 1999, from Ms. Eisen to Ms. Schuttler, in which Ms. Eisen stated, in pertinent part, the following: In conclusion, we have never "misrepresented" our status to the Durantes, nor have they been "deceived." They have lost no money, and any time lost has been attributable to their own delays. If the Durantes wish to cancel their contract, all monies, other than the cost deposit (less funds already expended) are non-refundable as per the contract. We are prepared to continue our services to the Durantes until a placement occurs, as long as we have their cooperation. I believe it would be beneficial for us to discuss this matter in person or by phone to further clarify the situation and to satisfy you and the Durantes of the security of their position with this agency. The Durantes and their adoption are very important to the agency and me, personally, and we will do all that is necessary to see to it that their adoption plans are realized. Not having heard back from Ms. Schlutter, Ms. Eisen, on or about November 3, 1999, sent Ms. Schlutter the following letter: I had hoped to hear from you by now in response to my letter of October 25, 1999. It is important for us to know immediately whether the Durantes are reconsidering their position as expressed in your letter dated October 21, 1999, in light of my response. If the Durantes would like to go forward under the contract, we have work to do to prepare their dossier, which entails expenditure of funds from their costs deposit. We also need to know when they would be in a position to accept a referral as we have children waiting. Finally, I am going to be traveling to Romania on the 6th, and will be in and out of town throughout the month of November. Please let me hear from you by noon on Friday, November 5. Ms. Eisen and Ms. Schlutter spoke on the telephone on November 5, 1999. Ms. Schlutter indicated that she would get back with Ms. Eisen in about a month and let her know about the Durantes' intentions. Approximately a month and a half passed without Ms. Eisen's hearing from Ms. Schlutter. Accordingly, on or about December 22, 1999, Ms. Eisen sent Ms. Schlutter the following letter: Further to our correspondence in October and our brief telephone conversation on November 5, 1999, can you please let us know whether the Durantes are continuing with the program. We have children to refer and work to do on the Durantes' file if they still wish to adopt. Ms. Eisen never received a response to this letter. It has not been shown that Petitioner's adoption fees have, at any time, been based on other than the reasonable costs of necessary services for Petitioner's total adoption program. L. K. gave birth to a baby girl on February 3, 1998. Pursuant to L. K.'s consent, her daughter was surrendered to Petitioner and adopted by one of Petitioner's clients, C. and F. F. On September 20, 1997, Ms. Eisen presented and explained to L. K. the following Acknowledgement of Non- Enforceability of Agreements Between Birth and Adoptive Parents, which L. K. signed that same day: I understand and acknowledge that neither Adoption Advisory Associates nor the courts can enforce any promises, either written or oral between the adoptive couple and myself regarding matters to occur after I surrender my child for adoption. One such promise that C. and F. F. had made to L. K. was that, following the finalization of the adoption, they would send L. K. photographs of her daughter and written updates about the progress of the child every year "around" the child's birthday. The adoption was finalized in October of 1998. As of the date of L. K.'s testimony during the final hearing in this case (February 22, 2000), L. K. had not received from C. and F. F. the promised photographs and progress report for the year ending February 3, 2000.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue a final order in which it denies Petitioner's request that Petitioner be granted another full-year regular license and instead grants Petitioner, pursuant Section 409.175(6), Florida Statutes, a provisional license as described above. DONE AND ENTERED this 13th day of June, 2000, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of June, 2000.
The Issue The issue in this case is whether Respondents' child- placing agency license should be revoked.
Findings Of Fact The Department is the state agency responsible for licensing and monitoring child-placing agencies. The Center, whose address is 1602 East Third Avenue, Tampa, Florida, received its initial child-placing agency license from DCF in 2004. The license was renewed October 12, 2006. Susan Morgan has been the director of the Center since its inception. DCF contracts with HKI to provide community-based child welfare services in Hillsborough County. HKI contracts with Camelot Community Care for the performance of adoption related services. DCF received complaints about Respondent and issued an Administrative Complaint with the following categories of violations: A foster parent home study was finalized after only one home visit lasting half an hour. The home study document indicates four home consultations for that client. Files relating to clients were left in an unsecured environment at the Center with unauthorized persons having access to them. An adoptive home study was completed without a visit being made to the prospective adoptive parents' home. Respondent lost or misplaced paperwork from clients which contained confidential information. Respondent failed to timely provide foster parents with a copy of their foster parent licenses once the licenses were issued. Regarding the first violation, two home studies are required to finalize a foster parent home study. The subject family was provided a template for filling in information about their home. This is a reasonable means of gathering information about a family. The family was directed to fill in the template using the third person format (so that anyone reading the document might infer that someone other than the family had written the information). Morgan did not visit the home at issue, but did send her associate (Wendy Martinez) who conducted a brief 30 to 40-minute visit. The home study was signed by Morgan and dated March 13, 2007, some four or five weeks prior to Martinez's visit. The home study included the following table concerning visits and consultations: Contact Information Inquiry Date 01/05/06 Inquiry Home Visit 02/10/06 Initial Home Consultation 03/15/06 MAPP Graduation 02/26/06 2nd Home Consultation 04/02/06 Final Home Consultation 03/08/07 Date Application Signed 03/08/07 The table seems to indicate a single home visit on February 10, 2006, and three home "consultations" on later dates. Morgan says the date of the home visit is a typographical error; it should say April 18, 2006, i.e., the date of Martinez's visit. Morgan admits only one home visit was made, but says the home study was not final. Her testimony on that topic is not credible. The home study appears complete, has references to several home visits and/or consultations, and is signed by Morgan subsequent to the dates appearing in the aforementioned table. DCF considers the references to home consultations to be tantamount to home visits. Inasmuch as at least two home visits are required for a foster parent home study, this interpretation makes sense.1 A discussion of the differences, if any, between home visits and home studies follows. There was much testimony at the final hearing as to whether a home visit and a home study are the same thing. Each of the experienced social workers and managers who testified (other than Morgan) seemed to believe the two were synonymous. Even the two witnesses called by Respondent to address the issue opined that home visit and home consultation mean essentially the same thing. Respondent introduced definitions from The Social Worker's Dictionary, but there is nothing in those definitions to suggest they apply to foster care or adoption situations. None of the social workers who testified indicated they would rely on that source to define home visits versus consultations. The home study at issue appears to suggest that four home visits/consultations were conducted, when in fact only one (of the required two) was done. The second category of rule violation concerns unsecured client records. Files belonging to clients of child- placing agencies are extremely confidential in nature. Respondent moved into a new office in the Ybor City section of Tampa during September 2006. The office was shared with a company that specializes in estimating construction project costs. The estimating company had two employees, a receptionist and the owner of the company. The office was set up so that the receptionist was in the same room as Respondent's employee, Martinez. Morgan had a separate office for herself, and the owner of the estimating company had an office upstairs. The Ybor City office had been inspected by DCF in October 2006 and was found to be sufficient for its intended purposes. A client, Angela Ferguson, visited the Center in early April 2007. Morgan was not present when Ferguson arrived, but Martinez was there, as were employees from the other business. Martinez called Morgan on the client's behalf so that Morgan could come to the office. While waiting for Morgan, the client noticed 50 to 60 file folders lying around the office. Some of the files belonged to other clients whose names were visible to Ferguson. Some of the files were probably forms and other non- confidential documents. The client files were not locked in a cabinet or otherwise protected from persons using Respondent's office. On or about May 2, 2007, another client, Jennifer Moody, also visited the Center to get her file (so that she could transfer to another adoption agency). She walked into the office and found the estimating company's receptionist, but no one from the Center was there. The receptionist called Morgan because Moody wanted to wait for her to arrive. While waiting, Moody observed files lying around the office in plain view. When Ferguson expressed her concerns to DCF about the way files were being handled, a licensing specialist was sent out to investigate. DCF employee Melissa Leggett made an unannounced visit to the Center on May 16, 2007, at 10:00 in the morning. Martinez was in the office when Leggett arrived; Martinez called Morgan for Leggett, and Morgan arrived shortly thereafter. Leggett noticed confidential files lying around the office, including files for some clients who she personally knew. Leggett advised Morgan that the files would have to be protected by placing them in a locked file cabinet or locked room. Morgan agreed to remedy the situation and seems to have done so by the date of the final hearing. Files are now being protected from public scrutiny. Each employee of the estimating company has signed a Confidentiality Office Policy agreeing to keep all records of the Center confidential. The third category of violation concerned an adoptive home study for Moody (the same client who had visited the Center). The home study for this family was also sent in blank template form with instructions to fill it out using the third person. Moody filled out the form and sent it back to Morgan. In April 2006, Moody and her husband were scheduled to attend a meeting with prospective adoptee children at Splitsville, a Tampa bowling alley. In order to attend such meetings, prospective adoptive parents must have a home study completed in advance. This serves the purpose of making sure that such parents actually qualify as adoptive parents before they are exposed to the children. The home study for Moody and her husband was finished by Morgan in time for the Moodys to attend the Splitsville function. Although several home visits were scheduled, each of them was cancelled due to various circumstances. No home visit was ever made. However, the home study was completed and signed by Morgan with a recommendation that the family be approved to adopt. The recommendation section of the home study included as its basis: "Based on MAPP training, personal interviews, home consultations . . .". The home study contains a thorough description of the home, including the pool and yard, presumably based on details provided by the Moodys. Moody decided to terminate her relationship with Morgan and the Center after not hearing from Morgan during the period of July through November. As stated earlier herein, Moody picked up her file, which included the signed home study, from the Center. Morgan maintains the home study was still a "work in progress" at that time. However, it had already been signed and was dated April 18, 2006. (Moody was scheduled to attend the Splitsville event on April 22, 2007, and would have needed a completed home study in order to attend.) By Morgan's own admission, she was never in the home of Moody and did not "effectively or efficiently manage" that client's case. It was, as Morgan admitted, wrong to sign the home study without having visited the home. It appears the home study was finished so that the family could attend the MAPP event. The next category of violation had to do with lost or misplaced paperwork. A child placing agency must protect all information provided to it by clients so that confidentiality is maintained. LaClair and her husband submitted a large packet of information to Morgan as part of their attempt to adopt a child through the Center. The information was lost or misplaced by the Center on at least two (but possibly three) occasions. The submitted information contained extremely confidential information, including: marriage licenses, divorce decrees, birth certificates, social security numbers, military identification numbers, and insurance information. The last category of violation concerned failure by Respondent to timely provide licenses to approved foster parents. One of Respondent's clients, Barry Plesch, indicated a long interval between verbal approval and receipt of his paper license. However, he could not quantify the number of times nor specifically remember what dates he may have called Respondent to ask about the license. Another client, Brad Farber, made numerous requests for his license. When he expressed an urgent need for it, the license was produced forthwith. On May 17, 2007, Morgan met with representatives of HKI to discuss the Moody home study and the situation relating to confidential records. At that time, Morgan admitted to falsifying the Moody home study. Morgan acknowledged the gravity and severity of that mistake. She did explain that her office was undergoing reorganization at the time of Leggett's visit, which was the reason so many files were lying around the office.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Children and Family Services upholding the revocation of Respondent's child-placing agency license. DONE AND ENTERED this 29th day of November, 2007, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of November, 2007.
The Issue The issue in this case is whether 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.
Findings Of Fact The Petitioners R.G. and M.G. were licensed as foster parents and their home as a Children Youth and Families foster home for dependent children at all times pertinent hereto. The Respondent is an agency of the state of Florida charged with licensure of foster parents and foster homes and with regulating and enforcing the standards of care of children placed in such foster homes as dependent children. This dispute apparently arose on or about April 18, 1990 when M.G., the foster mother, brought the M. children to the Department of Health and Rehabilitative Services office on that date to talk with a foster care counselor about problems experienced with the M. children in her home. Apparently the visit to the Department's office arose because M.G. had discovered that one of the children had allegedly stolen one or more articles from a local store in the community, or believed that she had, and was seeking the advise and council of Department's representative concerning the manner in which to address that perceived problem. During the course of that encounter with the Department's representative the M. children or some of them related incidents occurring in the home in the past while they were placed in the custody of the Petitioners which they felt involved or constituted mistreatment by M.G. Upon learning of these reports Department personnel removed the children from the G. home on April 18, 1990. No other children have been placed by the Respondent in the G. foster home since that time. Michelle M. testified that Petitioner M.G. called Marie M. a bitch, a whore and a slut on one occasion and gave Marie M. "the bird" (an obscene gesture). Michelle M. testified that M.G. called Marie M. a slut and stated that "she's just going to grow up to be a whore." Apparently Marie M. and Michelle M. had reported that M.G. called Marie M. a whore when Marie M. told M.G. about borrowing fifty cents from a boy at school. At the hearing, however, Marie M. testified that she borrowed fifty cents from a boy at school and that when M.G. learned of it she said "it would make her look like a whore." Mandy M. testified that M.G. thought that Mandy had called her "a faggot" and that, instead, she told her that she had called her sister that name but that M.G. did not believe her and sent her to her room and shoved her into the room whereupon she fell and hit herself against the bed or bedpost by accident. Michelle M. testified that on a church hayride a boy threw hay and hit M.G. in the face whereupon, thinking Michelle M. had done it, that M.G. hit Michelle on the leg with a flashlight. Mandy M. testified that M.G. hit Michelle on the leg with a flashlight, but her testimony revealed she knew nothing of that incident and her description of it was related to her by one of her sisters. Additionally, Marie M. testified that she saw M.G. pick up an infant by one arm from a crib and scold it for crying as she was picking the infant up to hold the infant in her arms. Michelle and Marie M. testified that M.G. held Marie M.'s mouth open and shoved red hot sauce into her mouth with a spoon as punishment for some perceived infraction. Marie M. testified that M.G. threw hot tea or hot water on the face of Marie M. while the child was asleep on a couch. M.G. categorically denies all the allegations made by the girls, the foster children in question referenced above. She denies ever making obscene gestures, ("the bird"), at any of the girls and denies calling them names such as bitch, slut or whore. She concedes that she may have admonished them or one of them about not "acting like a slut or a whore," etc. She also denies ever having administered hot sauce to any of the children. She said that on one occasion she gave Mandy some mustard on a teaspoon when the child inquired what it tasted like because she had never tasted mustard. She gave her a small amount of it just to show her how it tasted. She denies ever throwing hot tea or hot water on the face of any of the children and denies causing any of the children injury, specifically concerning the bedroom incident when the child apparently bruised her back falling against the bed. M.G. did use confinement for brief periods in a child's room as a form of discipline for inappropriate conduct in the home. She also denies hitting Michelle M. on the leg with a flashlight during the church hayride. In fact due to her position in the haywagon at the other end of the wagon from the child in question, it would have been impossible for her to reach over and hit her with a flashlight and that incident did not occur. M.G.'s testimony concerning the children's conduct and family life in the home with the children is to the effect that the older two girls, particularly the oldest, Michelle M., had a tendency to lie in order to "get their way"; that the girls were unruly and that they, particularly Michelle, used their relationship with HRS to try to intimidate the foster parents, particularly M.G. They had threatened to report M.G. for improper behavior towards the children in the home. The children resented the foster parents authority. Her testimony describes in detail, as do the exhibits submitted by the Petitioners, consisting of the monthly reports M.G. made to HRS, the progress of the girls and conditions generally in the foster home. This testimony and evidence shows that the Petitioners generally provided the children a good, wholesome home environment, with extensive involvement in school and church activities and with ample wholesome recreation activities at the home site on a lake. During the tenure of the girls in the Petitioners' home their scholastic progress improved markedly such that they were all earning "A and B" grades in school and otherwise were progressing well in school. M.G.'s testimony established that the Petitioners were providing a wholesome home environment for the children and were generally conscientious about caring for the children's needs, including medical needs, and with maintaining contact with and reporting to HRS concerning the children's living conditions and their progress in the home and in the school and church environment. The testimony of M.G. to the general effect that the older girls, particularly the oldest child, had a tendency to threaten reporting the parents or M.G. to HRS concerning their conduct as foster parents and their willingness to lie in an attempt to get their way or to intimidate the foster parents is corroborated by the letter in evidence as corroborative hearsay authored by Linda Kennedy. She is an acquaintance of the Petitioners associated with the Petitioners through the foster parent program. That letter indicates that when the girls were being taken to HRS to make statements concerning the incidents in question that they were reported to have said that they wanted to "get back at her" meaning M.G., the Petitioner and that Marie was heard to instruct Mandy not to talk to a lawyer because she "now liked M.G." and that Michelle had commented to the effect that she "wanted to really get her," meaning M.G. This information is taken from a hearsay letter in evidence pursuant to the above cited provision of Section 120.58, Florida Statutes but it corroborates the testimony to the same general effect of M.G. and corroborates testimony of Mandy who, after describing in her testimony some of the alleged parental abuse by M.G., testified that her sisters had asked her to say things to hurt M.G. Because of these revelations contained in the testimony of Mandy M. and the testimony of M.G., as corroborated by the letter in evidence authored by Linda Kennedy, it is deemed that the testimony of the three children can be accorded scant credibility and resultant weight. Accordingly the testimony of M.G. and Petitioner R.G. is accepted over that of the testimony of the three children testifying for the Respondent and it is found that the incidents described by the three children did not occur or did not occur in the way described by the three children such that they can not be deemed to have constituted abusive, disciplinary parenting practices and prohibited disciplinary practices. The testimony of Donna M. establishes that she has overseen the operation and management of foster homes in her capacity with the Department for many years. After the M. children were removed from M.G. and her husband and their foster home she had a number of telephone conversations with M.G. M.G. appeared to her, based upon her observance and her experience, to seem "fairly incoherent" during those telephone conversations on occasion. Consequently she recommended to M.G. that, in the course of the controversy concerning whether or not the foster home should be relicensed, that M.G. obtain a psychological evaluation. M.G. apparently scheduled that evaluation, appeared at the psychologist's office but, as shown by Petitioner's exhibit 5, the psychologist's report, apparently did not genuinely feel that she needed to get an evaluation. She rather merely consulted the psychologist concerning his advice to her about her dealings with HRS. He declined to render such advice and no psychological evaluation was ever made. In view of Ms. Mimms testimony, which is accepted, and in view of the comments made in the letter of Ms. Kennedy, and from the hearing officer's observance of the demeanor of M.G. and consideration of her testimony, it is deemed appropriate that a psychological evaluation of M.G. be obtained as a condition upon relicensure.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record and the candor and demeanor of the witnesses, it is therefore recommended that a Final Order be entered by the Department of Health and Rehabilitative Services granting the application for relicensure of the Petitioners as a Children Youth and Families foster home for dependent children, conditioned on the obtaining of a satisfactory psychological evaluation of M.G. RECOMMENDED this 3rd day of August, 1992, in Tallahassee, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of August, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-5842 Respondent's Proposed Findings of Fact (The Petitioners submitted no proposed findings of fact which can be independently and specifically ruled upon). - I. Rejected as not supported by the greater weight and credibility of the evidence. COPIES FURNISHED: Rodney M. Johnson, Esquire HRS District 1 Legal Office P.O. Box 8420 Pensacola, FL 32505-0420 Ronald and Marjorie Grover 4713 Radio Road Milton, FL 32583 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 John Slye, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700
