The Issue Whether Petitioner's application to become adoptive parents with the Department should be granted.
Findings Of Fact Beginning in November 1993, Petitioners were foster parents licensed by the Department. They stopped fostering in 1997. On March 25, 1997, Petitioners submitted an application to become adoptive parents through the Department. On August 22, 1997, an adoptive home study was completed by Ms. Townsend, supervisor of adoption and out-of-home care for the Department and adoption counselor for Petitioners. Among other things, the home study consisted of an interview with Petitioners and a review of Petitioners' history as foster parents. Ms. Townsend testified that when asked, Petitioners said they wanted to adopt a little girl under four. However, because of the age desired, such a child is not a special needs child. After completion of her review, Ms. Townsend identified the following needs in Petitioners: Appear to allow emotions to influence their judgment. Appear to be inflexible when presented an opinion different from their own where children are concerned. Seem to have unrealistic "love conquers all" attitude about special needs children. Appear to have trouble defining boundaries in their relationships with children. Need to develop more structure and objectivity when dealing with special needs children. It appears that they may, unintentionally, encourage the dependence of children on them in an effort to demonstrate their love. May need to examine more closely their motivation and apparent need to have a child. Need to develop a more positive working relationship with the Department. The needs referenced above were based on the interviews with Petitioners and their history as foster parents. Ms. Townsend also identified several strengths that Petitioners had as adoptive applicants. These strengths were: Family has knowledge and experience with special needs children. Committed and sincere desire to adopt. Willingness to take an active role in the lives of children. Demonstrated ability to accept children regardless of their problems. Provide assurance to children that they are loved and cared about. Open, verbal, and demonstrative people. Actively pursue what is in the best interest of children. Stable marriage of twenty-five years. Stable and well kept home with space available for expanding the family. Stable and more than adequate employment and income. Based upon her assessment of Petitioners, Ms. Townsend felt Petitioners' deficiencies outweighed their strengths. She recommended denial of Petitioners' application and that they pursue adoption of a non-special needs child. Per Department procedure, an adoptive applicant review committee was convened to consider Petitioners' application. The committee consisted of Ms. Winters, operations management specialist; chairperson, Mary Alegretti; Diane Rickman; Sheila Sinkfield; and Donna Veline. The committee report attached the foster parent adoptive home study, the foster parent re-licensing study, the original foster home study, a memorandum from Tom Waltz, foster child licensing counselor, dated January 8, 1997, a memorandum from Tom Waltz dated August 19, 1994, and a memorandum from Michele Shaner, foster care counselor, dated October 5, 1994, and the individual recommendations of all the committee members. The attachments to the committee's report identified difficulties Petitioners had concerning foster children previously in their care. Those documents related specific concerns based on incidents regarding foster children J.J., H.J., and D.C. The committee identified the following areas of concern for Petitioners: They really do not want to adopt a special needs child. When the adoption counselor pointed out to them on more than one occasion that the type of child they were describing was not special needs, they then said they would consider a sibling group, as long as one of the siblings was a little girl. It appears they have had problems in establishing appropriate parent-child relationships with appropriate boundaries. R.R. and P.R. did not respond appropriately when a foster child in their home was on runaway status; they withheld information from the Department concerning her possible whereabouts. Based on those concerns, the committee unanimously recommended denial of Petitioners' application to become adoptive parents. District legal counsel and the district administrator concurred with that recommendation. Petitioners were notified of the denial. The denial was based upon an evaluation of Petitioners' capacity for parenthood pursuant to the Department's service manual, HRS manual 175-16. The denial letter only cited Petitioners' demonstrated problem in establishing appropriate parent-child relationships with appropriate boundaries. Parenting a special needs child is more complicated and demanding than parenting a child without special needs. For the most part, special needs children come to the Department after they have been removed from or abandoned by the parents or other guardian. They often come from abusive or neglectful homes. Many special needs children have emotional and behavioral problems. The various problems a child may have differ with each child. Generally, special needs children, and probably all children, need clear and consistent boundaries with enforced structure in their daily lives. The required amount of boundaries and structure will differ from child to child. Each child's individual problems must be dealt with in a consistent manner. In fact, the Riches are very familiar with the varying problems and difficulties associated with special needs children and have dealt with each child they fostered in appropriate ways. Importantly, at no point in this review process was a specific child being considered for adoption. Because there is no specific child's needs under consideration, this case does not encompass whether a specific child would be a good adoptive match with Petitioners. Additionally because there is no specific child's needs under consideration, whether Petitioners could theoretically meet the theoretical needs of any and all special needs children is not the issue in this case. This case only encompasses whether Petitioners demonstrate the qualities expected of good parents. Ronnie Rich and his wife Pamela Rich have been married for 29 years. Mr. Rich has been employed with the Pensacola newspaper since 1982. He often works at night. Although Petitioners never ruled out the possibility that Pam Rich might become pregnant, they had discussed adoption from the very start of their relationship. They both felt there were too many kids in the world already who needed somebody. The Riches are very family oriented and participate in their church and church-sponsored activities. Ms. Rich is politically active in various social causes. They are somewhat "counter-culturish." Neither Ms. Rich's activism, nor the Riches' religious views have been pushed on any foster child in their care. Both Riches are very caring individuals. The Riches became interested in fostering because of an incident that occurred in 1983 with a young child who lived behind them. The child eventually ended up in protective placement. During the process, the Riches met with Janice Jeffcoat who performed the investigation concerning their neighbor. Later they decided to become foster parents with the intention of having the neighbor's child placed with them. For reasons not related here, the placement did not occur. Once the Riches began fostering children, they found that they had a knack with the kids they were fostering. At the time they decided to adopt a special needs child they had had a few years experience with special needs children. The Riches recognized that special needs children can be the hardest children to care for. Petitioners' first foster child was H.J, a 15-year-old female child. H.J. was known as a difficult child to place anywhere. She was particularly difficult for new and inexperienced foster parents. Petitioners describe H.J. as "a shocker." H.J. was known to say things to people just to see what kind of rise she could get from them. She would lie down in the hallway as if she were dead when someone opened the front door. She once told a dinner guest, Reverend Hawkins, that she was part of a group that sacrificed animals. H.J. had a history of violence with her step-mother and with her brother. The family had several knock-down-dragout fights, involving serious physical violence. H.J. had serious emotional and mental health problems. She often tantrumed, lost control of her behavior, injured herself, damaged property, and verbally abused others. This behavior was exhibited during her stay at the Riches. None-the-less, H.J. stayed with them for 5 months. During H.J.'s time at the Riches' home, she was seeing Chris Guy in therapy. The Riches supported and participated in that therapy. In fact, H.J. made progress in controlling herself while under the care of the Riches. Her behavior deteriorated when she learned that she was going to be placed with her uncle in Alabama. Finally she was removed from the Riches' home when one night she became uncontrollable, self-injurious, destructive, and threatening toward Ms. Rich. She ended up in the hospital, where the Riches stayed with her until three o'clock in the morning. After a short placement with another foster home, H.J. was placed with her uncle in Alabama. The Department's concerns as to H.J., were that Pam Rich had taken H.J. to hear a band at a restaurant where alcohol was served; used the term "jail bait"; allegedly encouraged H.J.'s interest in the occult; allegedly encouraged H.J. to explore her lesbian feelings; and stated a favorable opinion on the legalization of marijuana. H.J. did not testify at the hearing regarding the validity of the Department's concerns or her perception of the Riches' behavior or lifestyle. Moreover, all of these concerns were investigated by the Department with subsequent recommendations for relicensure as foster parents. During the course of her stay with the Riches, H.J. wanted to go see a band that was playing at a popular restaurant in town. Ms. Rich agreed that H.J. could go to the performance as long as Ms. Rich accompanied her. While there Ms. Rich drank one glass of wine in the presence of H.J. During a break, an older man with the band began to "hit" on H.J. in an attempt to pick her up. The man's English was not very good. In an effort to quickly terminate the man's pursuit, Ms. Rich told the man that he needed to leave because H.J. was "jail bait." She used the term to make the man understand his attention was not wanted and that he should go away. The man promptly left. Ms. Rich did not intend the term "jail bait" to be derogatory to H.J. She intended to use the term to communicate very quickly to the man in a language he could understand that serious consequences would ensue if he continued to pursue H.J. There was no evidence that H.J. found the remark offensive or derogatory. There was also no evidence that H.J. needed to be protected from an adult appropriately having a glass of wine. At some point during her stay with the Riches, H.J. elected to participate in the Riches' church and some of its church-sponsored functions. Ms. Rich and H.J. attended a chaperoned youth conference sponsored by the church in south Florida. Unknown to Ms. Rich, H.J. was "hit on" by another girl at the youth conference who allegedly was gay. Upon returning home, H.J. told Ms. Rich about the incident. Ms. Rich asked H.J. if the incident bothered her. H.J. said that it didn't. Ms. Rich told H.J. about a triangular pendant she wore that indicated that it is okay that another person is gay, but that the wearer of the pendant is not gay. The pendant is known as a PFLAG pendant. PFLAG stands for Parents and Friends of Lesbians and Gays. Afterward, H.J. on her own bought a PFLAG pendant at the Crystal Center where she took yoga classes. Additionally, at some point, H.J. asked Ms. Rich how she would react if she told her she was gay. Ms. Rich told H.J. that it would be okay. H.J. then informed Ms. Rich that she was not gay; Ms. Rich told H.J. that not being gay was okay too. Ms. Rich only had these discussions at H.J.'s prompting. Ms. Rich did not initiate H.J.'s discussions about homosexuality. She did not encourage H.J. to purchase a PFLAG pendant. On another occasion, after hearing a song by a popular group about legalizing marijuana, H.J. inquired about the Riches' position on the subject. The Riches explained that while it might be a sound policy to legalize marijuana and treat it more like alcohol, alcohol and marijuana were illegal substances for a teenager and were strictly prohibited in their family. H.J. then changed the subject and moved on to other things. There was no evidence that H.J.'s parental needs included a boundary excluding honest discussion of homosexuality or marijuana when H.J. raised such. Teenagers will raise controversial issues with the adults who are significant in the teenagers life. The Riches' responses were not inappropriate. Again these facts do not support the conclusion that either Rich demonstrated an inability to set appropriate boundaries for a special needs child. Finally, H.J. had some interest in the occult. The evidence did not show that this interest was serious, but was more of the behavior H.J. used to shock others. When H.J. came to the Riches' she brought a voodoo doll with her. She stapled it to the wall and never moved the doll from that spot. The Riches never saw her use the doll for voodoo purposes. At some point, H.J., like other teenagers, wanted a Ouija board. Mr. Rich purchased a Ouija board for H.J. He did not find it unusual to buy H.J. a Ouija board because he had had a Ouija board when he was growing up. He saw the board as a game and did not associate the board with the occult. The evidence did not show that the Riches used crystals and chanted. The evidence did not show that the Riches encouraged H.J. to use crystals and chant. The evidence did not demonstrate that any of this activity was a necessary boundary which H.J. required to be maintained. Again these facts do not establish that the Riches do not have the ability to set appropriate boundaries for children. After H.J., two sisters from Santa Rosa County were placed with Petitioners. Petitioners were told that nobody in Escambia or Santa Rosa County would take them in. The sisters had been in foster care prior to this placement and an older sister had been removed from the home permanently. The girls' father had a history of violence. The oldest of the two girls placed with Petitioners made accusations of inappropriate touching by the father. The girls had problems as to how they related to each other and discussed things. During the placement, Petitioners, who live in Escambia County, traveled with the girls to and from appointments in Milton, Okaloosa County, Florida; they also attended court hearings with them. The girls were in their care for a few months. No Department concerns were noted for this placement. The next placement to Petitioners' home was K. She came to Petitioners from Turning Point. Turning Point is a facility for young girls with serious behavioral problems. The facility's purpose is behavior modification. K. was a very difficult child. She would be happy and laughing one minute and the next, she would close down. During her stay with the Riches, K. was finishing the program at Turning Point. However, her mother was not prepared to take her back into her home. The Riches were a "gap period" placement between the time K. left Turning Point until her mother could make proper living arrangements with a place for K. During the placement, the Riches worked very closely with various therapists and case workers at Turning Point. Turning Point staff were sometimes in and out of Petitioners' home three or four times a week, visiting K. and holding therapy sessions. Staff would come once a week to see the Riches and to see if they had any problems. K. was reunited with her Mother. The Riches remain friends with K. and her mother and maintain contact with them. The Department did not have any concerns with this placement. After K., J.J. was placed with the Riches. Up to this time, Mr. Rich stated that they had had older female children. J.J. was 2 years, 10 months old upon her arrival at the Riches' home. She stayed with the Riches for 15 months and was 4 years old when she left. J.J.'s problems were not the same as those of the other foster children who had been placed with Petitioners. She had more serious behavioral and emotional problems. She soiled her pants, did not sleep through the night, and had nightmares. She came from a home with a tremendous amount of drugs, alcohol, and violence. Sexual abuse was not an issue with J.J. On one occasion, Mrs. Rich asked J.J. what she was looking for in the hallway. J.J. replied that she was looking for the blood. Later, the Riches learned that her mother had been beaten so severely by her father that there was blood in the hallway. J.J., at the age of three, was in therapy. J.J. improved at the Riches' home. While J.J. was in the Riches' home, it was normal for the Riches to rock J.J. to quiet her before bedtime. It was a period of time for her to stop from the rushing of the day and settle down before bedtime. Her bedtime was fairly early in the evening just after supper. The Department's concern as to J.J. was related to bathing. The child was not yet old enough to be left unsupervised in the bath tub. Therefore, someone had to watch her while she bathed. Most often, Ms. Rich was responsible for supervising J.J.'s bath. Occasionally, Ms. Rich would shower or bathe with J.J. Usually, she would keep an eye on J.J. while J.J. was in the bath tub. About once a month, Mr. Rich supervised the end of J.J.'s bathing. He would keep an eye on her from the hallway. The only time, Mr. Rich was called on to supervise J.J.'s bath was when Ms. Rich had to leave J.J. to begin cooking or take care of some other task which had to be done so that J.J. could get to bed on time. Nothing the Riches did regarding J.J.'s bath was unusual or abnormal. Clearly, given the age of J.J., the Riches acted responsibly in supervising J.J. in the bath. There was no evidence which demonstrated that such a bathing routine was harmful to J.J. or was an inappropriate boundary regarding her, especially since sexual abuse was not an issue with her. The Department came to the same conclusion when it relicensed the Riches as foster parents. Petitioners wanted to adopt J.J. after J.J.'s case worker expressed the possibility to them. However, the Riches were not kept informed of the Department's ongoing efforts to reunite J.J. with her parents. With these mixed signals about whether she would be staying with the Riches on a permanent basis or whether she would be reunified with her mother and father J.J. quickly reverted back to soiling her pants, not sleeping through the night, and having nightmares. J.J. was reunited with her parents. The Riches experienced considerable remorse over the loss of J.J. They felt department staff had misled them and cruelly raised their hopes about adoption of J.J. In October, 1996, after investigation of the above concerns, the Department found the Riches had a lot to offer its special needs children and recommended relicensure. The Riches were found to have used appropriate discipline; were committed to the children placed in their care; provided a warm, friendly, and caring environment to those foster children; and were extremely cooperative with the Department on fostering issues. Two foster care counselors thought they were above satisfactory in all areas of fostering. Before J.J. left the Riches' home, Delores Shelton, formerly known as D.C., was placed with the Riches. She was 16 years old. Beginning with her father, Delores had been passed around among various males in and out of her family. Once her father had left her with another man, he and her mother abandoned Delores and moved to California. At each move to another male who would take care of her, Delores was mentally, physically, and sexually abused. At age 15, she ended up with a man who was 26. They had a child together, but were not married. One day they had a fight. The Department was called to take Dolores and the infant child into custody. At that point, prior to placement with the Riches, Delores was moved from foster home to foster home. Delores was diagnosed with severe post-traumatic stress disorder. She also was diagnosed with a drug and alcohol problem. Drug and alcohol abuse is not uncommon for teenagers with post-traumatic stress disorder and Delores' behavior was out of control. Delores was a chronic runaway. The Riches knew Delores from a prior placement with another foster parent. They were aware of her problems. At the time of transfer to the Riches, Betsy Thomas, from the Department, told them that Delores may or may not stay the whole night. Significantly, Delores never ran away while in the care of the Riches. The Departments concerns as to Delores were that Mr. Rich had rocked Delores in a rocking chair with her in his lap, Petitioners placed her in a bed with them during an episode in which she threatened suicide, had attempted to interfere in her treatment, inappropriately kissed her in saying goodbye and failed to disclose Delores' whereabouts to the Department when she had run away. Delores and J.J. were very close. They referred to each other as sisters and shared a room. On one occasion, while Mrs. Rich was cooking dinner, and Mr. Rich was rocking J.J., Delores was sitting on the couch and started making comments such as "Well, I've never been rocked, my parents never rocked me. They never did that for me, but we do it every day for J.J., and sometimes rock J.J. more than once. But, you know, you all are all the time rocking her, but I've never been rocked." At that time, Petitioners didn't know quite how to respond to Delores' request to be rocked. Mr. Rich told Delores that they would talk about it at another time. The next day she mentioned it again. So in full view of Mrs. Rich, Mr. Rich rocked Delores for no more than five minutes. After that occurrence, Petitioners discussed the rocking of Delores and decided that an afghan and/or small quilt would be placed on Mr. Rich's lap between him and Delores. Petitioners discussed the rocking with Jean Lenhert, Delores' counselor. Ms. Lenhert agreed that it was the appropriate thing to do for Delores. Delores had regressed emotionally to a younger age, and she was seeking out affection from the people she viewed as her parents. The rocking of Delores occurred no more than a half a dozen times. The rocking helped Delores. It calmed her down and relaxed her. Mrs. Rich tried to rock Delores on one occasion but it was to painful for her since she suffers from arthritis and Delores weighed somewhere between 110 to 120 pounds. Under these circumstances, the Riches acted appropriately in handling a situation which had arisen. The Riches were aware that they did not want to encourage Delores to seek affection in inappropriate ways as she had done prior to becoming a foster child. Generally, maintenance of personal space and appropriate and limited demonstrations of affection are important for a child who has been sexually abused. These factors are the reason they sought guidance on the matter from Ms. Lehnert. Moreover, the Riches' judgment in this matter was correct since it did indeed help Delores through a regressive period. Given these circumstances, this incident does not demonstrate that Petitioners are unable to develop appropriate boundaries in a parent-child relationship. Ms. Lehnert testified that she noticed a change in Delores after she was placed with the Riches. Delores told Ms. Lenhert that she felt like she had a home with the Riches. Delores stayed at the Riches' home and quit running away. Although she continued to use drugs and alcohol, it was not as extreme a use as her use in the past. Delores was trying to get off the drugs and alcohol. The Riches participated in the therapy sessions when they were asked. They would ask to speak with Ms. Lehnert to let her know what Delores' behaviors had been that week. Such involvement was appropriate. In fact, Ms. Lehnert asked all parents, foster and biological to be so involved in a child's treatment. Ms. Lehnert testified that Petitioners did everything she asked of them. If they weren't sure of something, they would always call her. Ms. Lehnert testified that just being in Petitioners' house brought Delores a sense of security and a comfort level. When Delores was taken out of Petitioners' home, she ran away and reverted to her old behavior. Delores never felt threatened or that the Riches behaved inappropriately towards her. She reported that she felt safe in their home. Dolores testified that upon arriving at the Riches' home, they went over the rules with her. At first, she tried to break the rules to see what would happen. She stated that the Riches always talked to her about how they felt when she broke the rules. She said she later started following the rules because she felt comfortable at the Riches; she knew they wouldn't just kick her out because she broke a rule. Significantly, Dolores testified that until she arrived at the Riches' home, she never felt a sense of security in any home. She stated that the Riches showed that they cared. They cared about her going to counseling and getting help to get her life together. She testified that in other homes she was not cared about but just there for the money. Dolores testified that the Riches treated her like a member of their family. To this day she calls them mom and dad. She considers them her real parents because they treat her like their daughter. Delores was very withdrawn and very untrusting when she was first placed with Petitioners. After some time, she became more trusting. Soon the Riches could count on Delores to help around the house. During her placement there was one occasion when Delores was placed in the bed between Petitioners; it was Thanksgiving weekend. Petitioners, Delores, and another foster child visited Ms. Rich's parents outside Spanish Fort, Alabama. After some time there, Petitioners noticed Delores appeared to be stoned. Petitioners discovered that Delores had gotten into Ms. Rich's mother's medicine cabinet. She had found an old Valium prescription and had taken some of the pills. Delores was caught trying to break into Ms. Rich's traveling case where she kept her arthritis medication. She also had tried to get into Ms. Rich's father's medication used for his heart condition. Delores clearly needed some professional help. Petitioners did not want to take Delores to an Alabama hospital because they had learned from the MAPP class that you should always avoid getting another Department involved if necessary. Baptist Hospital in Pensacola was the closest hospital known to the Riches, so they took Delores there. Upon their arrival and assessment of Delores, the medical staff told the Riches Delores did not meet the criteria to be Baker-acted. She was sent home with the Riches. Petitioners drove home and called Les Chambers and Betsy Thomas two foster care counselors. Neither answered and the Riches left messages on their answering machines. Mr. Rich drove back to Spanish Fort to collect their things and retrieve the other foster child whom they left with Ms. Rich's sister, a special education teacher. The trip took approximately 4 1/2 hours. When he returned, the other child was put to bed. Delores was manic. She was walking in circles. Delores had told Ms. Rich that she knew how to commit suicide by slicing her wrists. She said she would show Ms. Rich how it was done, so Delores drew a streak with a pen from her wrist to her elbow. Ms. Rich stated that prior to that, Delores' suicide attempts had been scratches, laterally across her wrist. This was the first time she showed the "correct" way to slice her wrists in order to commit suicide. At some point, Delores walked into the kitchen. Ms. Rich realized that Delores was going to get a knife. Mrs. Rich ran to the kitchen and grabbed Delores' wrist as she was grabbing for a knife. Petitioners were very concerned and frightened that Delores would try to kill herself. It was 3 or 4 o'clock in the morning, and they were "dead on their feet." They had heard nothing from anybody, and were at a complete loss as to what they should do. The Riches feared they would fall asleep and Delores would kill herself. They were afraid that if they put her to bed in another room she would kill herself. These fears were legitimate. The decision was made that the safest place for Delores was in the bed between the Riches under the covers, with Petitioners on top of the covers. Everyone was fully dressed. Delores made it through the night. Betsy Thomas called the following afternoon and told them to tough it out. Mr. Chambers did not call until sometime the following Sunday. Eventually, Delores was admitted to the Baptist Adolescent Stress Unit at Baptist Hospital. Upon being released from the Baptist Adolescent Stress Unit, Petitioners picked Delores up. Mr. Rich picked up a birthday cake for Delores because the Riches thought she would be staying with them. Upon arriving home there was a message from Les Chambers to deliver Delores straight to FIRS. There was no reason given as to why Delores was being removed from Petitioners' home. Delores was next placed at Willow Edge's foster home. Even though Delores was no longer in the care of Petitioners, she continued to call them. She called Petitioners while at Ms. Edges' and told them she stayed up all night doing drugs with one of the other people in the home. While Delores was at Ms. Edges' home a local mall held a shopping spree for foster children on December 14, 1996. Ms. Eastlack observed Ms. Rich create a scene with Delores and her new foster mother. Ms. Rich was crying and attempting to hug and talk to Delores; Delores was ignoring Ms. Rich. Delores was angry about being placed in another foster home. Ms. Rich shook her fist in the other foster mother's face, raising her voice at the foster mother. Ms. Rich was chastising the foster mother for permitting Delores to use drugs and stay up all night at her house. Ms. Rich was upset by the reports Delores had given the Riches of her activities at her new foster home, and she was concerned for Delores. Ms. Rich eventually was encouraged to leave by someone with Ms. Rich who tugged on her arm to get her to leave. While this episode was an emotional response, one such outburst does not reflect unduly on Petitioners as potential adoptive parents. It does show how much Ms. Rich cares about the children in her life. After Ms. Edge's home, Delores was moved from several different foster placements. Eventually, she was taken to Lakeview Center and then to Meridian. Meridian is a long-term residential psychiatric care facility for children and adolescents typically between the ages of 8 to 18, to work on their behavioral and emotional problems as well as substance abuse issues. It is a voluntary, residential facility for children. Stays are typically anywhere from three months to a year. Delores, stayed at Meridian for approximately 20 days, ran away, was returned, stayed another two weeks at maximum and ran away again. During the second time Delores ran away, the Riches received a call from Delores telling them she had run away because she couldn't stand Meridian anymore. She asked that they not be mad at her. She made several telephonic contacts with Petitioners. Petitioners were very concerned for Delores' safety on the streets; they feared she would revert to her old habits of trading sex for support. They encouraged her to return to Meridian and offered to pick her up and return her to Meridian. They stressed to her to stay clean and sober. At no time, did Delores reveal her location to Petitioners. She knew if she did Petitioners would tell the Department about her location and she would be picked up. At one point, Delores was desperate for money. Mr. Rich wrote Delores a letter enclosing some money and a phone card. He mailed it to an address she had stayed at. Delores did not tell Petitioners about this location until after she had left. At the time the letter was mailed, Mr. Rich did not know where Delores was and took a chance in the hope that she would get the letter. The evidence did not demonstrate that Petitioners withheld any information on the whereabouts of Delores after she ran away from Lakeview/Meridian. They did not know where she was. Delores remained on her own for several weeks, occassionally calling the Riches. She finally agreed to turn herself in. Petitioners picked Delores up, took her to lunch, bought her some clothes, since other than what she had on, she had none. They then took her to Meridian. The Riches met with Dr. Kimberly S. Haga. Dr. Haga, Ph.D., is a licensed psychologist. She was employed at Lakeview/Meridian from November 1, 1996 through January 28, 2000. Dr. Haga met with Petitioners during a two-hour meeting. Mr. Rich thought the meeting lasted only about 45 minutes. From the beginning, the meeting was hostile. Even though she did not know the Riches and the history outlined here, the meeting opened with Dr. Haga stating that the Riches had a very dysfunctional family. Although Delores was not placed with Petitioners at the time they returned her to Meridian, the Riches asked to be a part of her treatment. Petitioners knew they had formed a relationship with Delores, and believed it would be to her benefit if they participated. Moreover, Delores had requested their participation. Whether or not Delores returned to their home was unimportant; Petitioners wanted to see Delores get appropriate treatment. Dr. Haga thought Petitioners "insisted on being a part of the treatment process" and "insisted upon dictating the terms of treatment." Dr. Haga opined that such insistence by Petitioners was inappropriate. However, Delores at the time and date viewed Petitioners as her parents. Petitioners were the only foster parents who did not have problems with Delores' running away. Dr. Haga was also not privy to the numerous conversations the Riches had with Delores about staying in treatment. One statement out of context does not show the Riches acted in a manner inappropriate for a parent-child relationship or that inappropriate boundaries had been established for Delores. Additionally, the Riches did not encourage Delores to be overly dependant on them. At the end of the meeting, Dr. Haga observed Mr. Rich embrace and kiss Delores on the lips in saying goodbye. It was not a sexual kiss. Delores did not interpret the kiss as anything other than saying goodbye to her parent. Petitioners also told Delores that she was welcome at home at any time. The Riches wanted Delores to know that they cared, that she was not being abandoned, and that she was welcome in their home when her treatment was complete. In the doctor's opinion, Petitioners did not demonstrate appropriate parenting skills. These opinions are not credited given the surrounding facts of the incidences referenced. Because Delores had taken another younger child with her each time she had run away from Meridian, Delores was eventually denied admission to Meridian upon her return. After Meridian, Delores moved from foster home to foster home about every two to three weeks. Throughout she kept in touch with the Riches. Delores told Petitioners that she wanted to come home. They explained to her that they had no standing, and that she could not come back to their home until she was 18. At that time she was legally old enough to make her own decision. Petitioners received a phone call from Delores telling them that the Department was putting her on a plane to California to live with the parents who had abused and abandoned her. She was 17 years old. While in California, Delores stayed in contact with Petitioners; she quickly was back on the streets engaging in her old behaviors. When Delores turned 18, Petitioners, at Delores' request, sent her an Amtrack ticket to Crestview, Florida. Delores returned to the Riches' home. She has since married, become sober, and lives with her husband. The last child placed with the Riches was R. She was placed with the Riches before Delores left the Riches home. R. was age six when she was placed with the Riches. She was a part of a sibling group in Protective Service care. R. had been sexually abused. R's knowledge of anatomy and love was clearly inappropriate for her age. For that reason, Petitioners followed very strict rules for her that they had not really had to follow with J.J. They never bathed R. or supervised her in the tub. Petitioners worked closely with Donna Story and Chris Guy, R.'s therapists. Mr. Rich testified that R. was such a needy child that they had to have the professional guidance of Ms. Story and Ms. Guy because what R. had been through was so devastating. R. received therapy twice a week through Ms. Story, her therapist at Bridgeway. Ms. Story would come to the Riches' home once a week, and the Riches would take R. to a session once a week. The Department had no concerns regarding this placement. Petitioners gave each child entering their home their own flashlight immediately upon their arrival because they knew they were entering a strange home. They wanted the children to have a sense of security to be able to get up and find a bathroom or simply find their way around the house in the night. The first day of a child's placement, Petitioners let each child settle in, showing them their rooms and the home. As time went on, Petitioners went over the rules of the house. They sat each child down and explained what was and was not expected of them. A lot of the information for the rules came from the MAPP class Petitioners had attended; the other rules were their personal rules. Each child knew exactly what was expected of him or her, and knew what was appropriate and inappropriate behavior. The Riches maintained an open-door policy with the Department and made sure that every case worker knew that he or she was welcome at any time. Christine Guy holds a Master's degree in counseling and psychology. As indicated earlier, Ms. Guy worked with the Riches throughout the time they were foster parents. She testified in favor of adoption by Petitioners. In 1994, the first year Petitioners were foster parents, her initial opinion about Petitioners as foster parents was not favorable to Petitioners. She stated in a letter dated October 7, 1994, "I'm unable to recommend that any additional foster children be placed with the R.R.'s regardless of age, due to their need to completely assimilate and their reluctance to work toward reunification with the biological family." The letter was prepared as a comment for the relicensure of the Riches as foster parents. However, the issue of aiding in reunification is not related to whether Petitioners would make good adoptive parents. Over the years, Ms. Guy visited Petitioners' home and found it to be clean, well-maintained and appropriate. She also knew them to establish rules for their foster children. She knew some of the rules as they pertained to the children that she was seeing that lived in their home, and found them to be very appropriate. She witnessed them grow as foster parents. She feels the Riches have acquired the skills necessary to be good foster parents. As stated by Ms. Guy in her testimony, "Having somebody that cares a whole lot is really hard to look at as anything but positive." Indeed Ms. Guy feels Petitioners would make good parents and good adoptive parents of a special needs child. Jeannie Lehnert has a Master's degree in counseling and human development. She is a licensed and nationally certified counselor. She also testified in favor of adoption by Petitioners. Ms. Lehnert has been working with emotionally and mentally handicapped children since 1993. She maintains a private practice in Crestview and Fort Walton, and also teaches for the Okaloosa-Walton Community College. Ms. Lehnert has known Petitioners since late 1995. She has observed their interaction with many of their foster children. Ms. Lehnert thought the Riches were the best foster parents in the county because they took a child into their home and into their family. They took them with all their bad behaviors and all their good behaviors. Ms. Lehnert was familiar with the rules of Petitioners for their foster children. She believed them to be strict as far as a foster child following the rules. When working with the Riches, Petitioners did everything Ms. Lehnert asked of them; if she asked them to impose certain restrictions, they would. She found Petitioners to be very open-minded to treatment and care-taking suggestions. Ms. Lehnert witnessed Petitioners' affections toward their foster children. She saw them hug them, pat them on the back, tell them they did a great job, and tell them that they cared about them. She found their affections to be very appropriate. The Riches did not cause the foster children in their care to become overly dependant on them. They accepted each child unconditionally. Petitioners did not favor one child over another child. They treated the children according to their ages and gave them privileges according to their ages; exactly the behavior a good parent would do. In fact, the evidence demonstrated that the Riches' would make good adoptive parents. They have and had the skills necessary to establish appropriate boundaries in a parent-child relationship based on the needs of a particular child and had in the past established such boundaries. Whether a particular adoptive match can be found is left to the future. Petitioners' application to become adoptive parents should be granted.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That Petitioners' application to become adoptive parents be granted. DONE AND ENTERED this 1st day of August, 2001, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of August, 2001. COPIES FURNISHED: Christopher P. Saxer, Esquire Christopher P. Saxer, P.A. 126 Eglin Parkway, Northeast Fort Walton Beach, Florida 32548-4917 Eric D. Schurger, Esquire Department of Children and Family Services 160 Governmental Center, Suite 601 Pensacola, Florida 32501 Virginia A. Daire, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue is whether Respondent's license to operate a family day care home should be revoked.
Findings Of Fact Based upon the testimony and evidence received at the hearing, the following findings are made: Parties The Department is the state agency responsible for licensing and regulating child care facilities, including family day care homes. The Department routinely conducts inspections of licensed family day care homes to determine whether the home is in compliance with the applicable statutes and rules. Any problems found during the inspection are noted on a report which is provided to the home's operator immediately following the inspection. When appropriate, the inspection report provides a time frame within which the problems must be corrected. Regular inspections are conducted approximately twice a year. More frequent inspections -- monthly or every six weeks - - are conducted on family day care homes which have a provisional license rather than a standard license. The Department also conducts inspections in response to complaints it receives, and it has the authority to inspect family day care homes at any time with or without notice. Respondent is the owner and operator of a licensed family day care home located at 1218 Jordan Avenue in Orlando, Florida (hereafter "Respondent's facility" or "the facility"). Respondent and her husband reside at that address as well. Respondent has operated day care homes in Florida since 1992, and she has been involved in child care for approximately 21 years. As a result, she is or should be familiar with the rules regulating family day care homes. Respondent keeps children in the back portion of her home. The children also play in Respondent's backyard, which is enclosed by an approximately six-foot high wooden fence. A wooden gate in the fence connects Respondent's backyard to the backyard of the house immediately behind Respondent's home. That house has been rented by Annette Rodgers since November 2002. Respondent does not have a pool in her yard. Ms. Rodgers' yard does have a pool, which at the time of the Department's February 27, 2003 inspection (discussed below), was only partially filled with water. Ms. Rodgers' pool is not visible from Respondent's back yard because of the wooden fence and gate. The photographs and videotape received into evidence show that Ms. Rodgers' pool is now completely enclosed by a series of fences.4 The evidence does not clearly and convincingly establish that the fences were not in place on February 27, 2003. Indeed, the weeds and high grass which can be seen along the base of and around the posts of the chain-link fence and the discoloration on some of the fence posts indicate that at least that fence has been in place for quite some time.5 Previous Inspections of Respondent's Facility and Actions Taken by the Department Respondent's facility was inspected on May 28, June 14, and September 30, 2002. Several areas of noncompliance were identified during each of those inspections, including inadequate supervision of children, unsafe storage of chemicals, evidence of roaches in the home, and incomplete enrollment and health records for the children at the home. On each occasion, Respondent was given a period of time within which to correct the areas of noncompliance. The inadequate supervision for which Respondent was cited in June 14, 2002, involved several children playing unsupervised in Respondent's carport area, which has access to the street; several children playing in the backyard under the "supervision" of Respondent's mother, who was not an authorized caregiver; and several children playing unsupervised on the porch area in the vicinity of tools and small screws. The Department issued Respondent a provisional license on October 28, 2002, presumably as part of the license renewal process. The provisional license was based upon Respondent's history of noncompliance with the Department's minimum standards, and it was valid through April 2, 2003, unless Respondent applied for an received a change in license status (which she apparently did not) or "if the license is suspended or revoked by the Department." A provisional license is issued where the Department has continued concerns regarding the day care home's compliance with the applicable statutes and rules. A provisional license is issued in lieu of denying a license renewal or suspending or revoking the home's license. A provisional license gives the licensee an opportunity to correct the areas of noncompliance, and because such homes are inspected more frequently, the Department has an opportunity to monitor the licensee's progress. On October 29, 2002, Respondent was assessed an administrative fine of $100.00 based upon deficiencies identified during the May 28 and June 14, 2002, inspections. The fine was based primarily upon the incident described above involving inadequate supervision of the children at the home. Respondent apparently did not contest the administrative fine or the issuance of the provisional license rather than a standard license. Despite the provisional license and the administrative fine, the Department's inspections continued to identify areas of noncompliance at Respondent's facility. For example, the November 14, 2002, inspection identified "evidence of rodents/vermin in the home" as well as incomplete enrollment and immunization records for the children in the home. The December 18, 2002, inspection identified these same deficiencies, including "live roaches in the children's area and the kitchen," as well as the storage of plastic shopping bags and chemicals which can pose dangers to children in an unlocked cabinet accessible to the children. These violations were the same as or similar to those for which Respondent had been previously cited and which led to the imposition of the administrative fine and issuance of the provisional license. The Department did not take immediate action to suspend or revoke Respondent's license based upon the results of the November 14 and December 18, 2002, inspections. Instead, the Department continued to give Respondent an opportunity to bring her home into compliance with the minimum standards in the Department's licensing rules and statutes. Inspection of Respondent's Facility on February 27, 2003 The Department next inspected Respondent's facility on February 27, 2003. That inspection was conducted by Department employee Brandi Blanchard. Ms. Blanchard had been responsible for inspecting Respondent's facility since at least September 2002, so she was familiar with the layout of the facility and its history of noncompliance. Respondent testified that Ms. Blanchard, unlike the prior inspector, had been "very good to her." Ms. Blanchard arrived at Respondent's facility by car between 8:30 a.m. and 8:45 a.m. As she arrived, Respondent was pulling her car into the driveway/carport at the facility. Ms. Blanchard parked her car directly behind Respondent's car. Ms. Blanchard got out of her car as Respondent was getting out of hers, and she said, "Hello, Ms. Alli," to Respondent. Upon seeing Ms. Blanchard, Respondent quickly went into the house through the carport door. Ms. Blanchard followed Respondent into the facility. Ms. Blanchard lost sight of Respondent as she went down a hallway towards the back of the house where the children were located. The backdoor of the house was open, and by the time that Ms. Blanchard caught up with Respondent, Respondent was directing the children through the facility's backyard towards the back gate connecting Respondent's yard to Ms. Rodgers' yard. Several of the children, led by Ms. Rodgers' 14-year-old son carrying an infant in a car seat and Ms. Rodgers' 13-year-old son carrying a toddler had already reached Ms. Rodgers' yard. Ms. Blanchard told Respondent to stop and return to the facility with the children, which she did. Ms. Blanchard went through the open gate onto Ms. Rodgers' property and directed Ms. Rodgers' sons to return to Respondent's facility with the children, which they did. While on Ms. Rodgers' property, Ms. Blanchard saw a partially-filled swimming pool and other ongoing construction. Ms. Blanchard did not notice any fencing around the pool and saw one of the children, which she estimated to be three or four years old, walking in the construction area close to the edge of the pool. After the children had been returned, Ms. Blanchard assessed the situation and commenced her inspection of the remainder of Respondent's facility. Ms. Blanchard found roach droppings in the bathtub and in other locations in the facility. Respondent acknowledged a roach problem, but claimed that she had an exterminator working on the problem and that he was due to come out and treat the facility. Respondent did not present any documentation to Ms. Blanchard to corroborate her claims regarding the exterminator, nor did she introduce such documentation at the hearing. Ms. Blanchard found plastic bags in an unlocked cabinet accessible to the children. Respondent acknowledged at the hearing that the bags were in the cabinet and further acknowledged the suffocation danger that they posed to young children. Ms. Blanchard's review of the facility's records identified missing enrollment and immunization records for the children in the home. However, Ms. Blanchard did not document the children whose records were missing and she did not determine whether, as Respondent claimed at the time and in her testimony at the hearing, any of the missing records were for students who had enrolled in Respondent's facility within the prior two weeks. Ms. Blanchard documented the results of her inspection, including the events surrounding the movement of the children to Ms. Rodgers' yard on her inspection report. The inspection report identified each of the violations that she observed, including inadequate supervision based upon Respondent's absence from the facility, unsafe storage of materials dangerous to children (i.e., plastic bags) in a location accessible to the children, evidence of roaches, incomplete enrollment and immunization records, and more than the allowed number of children in the home. Ms. Blanchard also cited Respondent's facility for the dangers posed by Ms. Rodgers' pool since the children were being taken onto Ms. Rodgers' property. With respect to the citation for having too many children, Ms. Blanchard's inspection report did not include any detailed information about the children such as their names (or initials), ages, or descriptions. The report simply stated that Ms. Blanchard counted seven children at the facility -- i.e., "3 infants, 3 preschool and 1 school age child." Ms. Blanchard's testimony at the hearing referred to only two infants, which was consistent with Respondent's testimony on that issue. As a result, the evidence is not clear and convincing that there were seven children in Respondent's care at the facility rather than the authorized six children. During the course of her inspection, Ms. Blanchard did not see any adults (other than Respondent, who arrived as Ms. Blanchard was arriving) at the facility. It is undisputed that Respondent's husband, who is the designated substitute caregiver, was not at the facility that morning. There is no credible evidence that Respondent's 22- year-old son, Abdel, was at the facility that morning. He did not testify at the hearing, and, if as Respondent claims, Abdel was at the facility that morning, Ms. Blanchard would have seen him at some point during the commotion surrounding Respondent's rushing the children out the back door or during her subsequent inspection of the facility. In any event, Abdel was not the substitute caregiver designated by Respondent. He was not even authorized to watch the children because, although he had been background screened by the Department, he had not taken the Department's mandatory child care training program and was not certified in cardiopulmonary resuscitation (CPR). It is more likely than not that Ms. Rodgers' teenage sons were actually left to supervise the children at Respondent's facility during the time that Respondent was gone on the morning of February 27, 2003. Indeed, that is the most likely explanation of their presence at the facility and their involvement in the movement of the children to Ms. Rodgers' yard. However, the evidence on this issue is not clear and convincing. Respondent's explanation of her actions on the morning of the inspection -- i.e., that she hurried into the house upon her arrival and directed all of the children to Ms. Rodgers' yard so she could convey an important message to Ms. Rodgers -- is not credible. Her explanation of the roach droppings that Ms. Blanchard found in the bathtub -- i.e., that it was actually dirt from washing one of the children's feet -- is also not credible. By contrast, Respondent's explanation of the incomplete records -- i.e., that the missing records were for those children who had enrolled in the facility within the prior two weeks -- is reasonable. Because Ms. Blanchard's inspection report did not identify the children whose records were missing and did not document the date of their enrollment, the evidence is insufficient to prove this violation. Respondent admitted at the hearing that she "was taking a chance" by leaving the children at the facility without her husband, the designated substitute caregiver, being present. Respondent testified that she was gone only 15 minutes to drop one of her children off at school, and that she follows that same routine every day although her husband is usually at the facility while she is gone. After Ms. Blanchard completed her inspection, she discussed the results with Respondent and provided Respondent a copy of the inspection report. Ms. Blanchard then went back to her office and discussed the results of the inspection with her supervisor, Patricia Richardson. Based upon the results of the February 27, 2003, inspection and the history of noncompliance at Respondent's facility (both before and after the provisional license), Ms. Richardson determined that Respondent's license should be revoked. Thereafter, on February 28, 2003, Ms. Richardson sent a letter to Respondent informing her that her license was being revoked and advising Respondent of her right to "appeal" that decision through the administrative process.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services issue a final order revoking Respondent's license to operate a family day care home. DONE AND ENTERED this 12th day of June, 2003, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II 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 12th day of June, 2003.
The Issue The issue presented is whether Petitioner's license to operate a child care facility should be revoked.
Findings Of Fact At all times material hereto, Geraldine Lee was the owner and operator of a child care facility, licensed by the State of Florida and known as The Children's Palace II. On November 14, 2004, there were eighteen children in the care of The Children's Palace II. Each child was signed in by the child's parent when the child arrived each morning, and one of Lee's employees then signed that the child was actually there. The child was then signed out when the child was picked up that day. The facility was open until 10:00 p.m. However, the facility closed earlier if all the children had been picked up before that time. On November 14 when Taunya Patterson brought her six- month-old son Kenneth Geddes to the facility, she neglected to sign in her son, and no employee counter-signed. Thus, there was no written record that he was there. At that time, Geddes had been receiving child care at The Children's Palace II for two months. When Patterson returned to the facility at 9:00 p.m. to pick up her son, she found the facility closed, locked, and dark. She summoned the police, who, in turn, summoned Geraldine Lee, who came to the facility. She unlocked the facility and Patterson's son was in the crib where he normally slept, lying on his stomach and crying. The infant was unharmed. Geraldine Lee had left the facility that day at approximately 7:30 p.m. Before leaving the facility, she walked through but did not see any children still there. She left her employee Theresa Leverett in charge of the facility. At approximately 8:30 p.m. Lee returned to the facility to pick up her granddaughter. Leverett was leaving the facility when Lee was picking up her granddaughter. On December 3, 2004, the Department notified Lee that it was revoking her license to operate a child care facility effective immediately. On August 18, 2004, Lee had been issued a provisional license for The Children's Palace II, effective August 20, 2004, to February 19, 2005. Once before, The Children's Palace II had been issued a provisional license but had been issued a regular license thereafter. Prior to November 14, 2004, no child had been left alone in the facility. The only prior similar incident occurred when an employee walked out of a room where a child was present, thereby leaving the child unsupervised.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that the Department failed to meet its burden of proof and dismissing its notice of intent to revoke the license of The Children's Palace II. DONE AND ENTERED this 6th day of December, 2005, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of December, 2005. COPIES FURNISHED: Robin Whipple-Hunter, Esquire Department of Children and Family Services Post Office Box 2417 Jacksonville, Florida 32231-0083 Thomas A. Delegal, III, Esquire Delegal Law Offices, P.A. 424 East Monroe Street Jacksonville, Florida 32202 Gregory Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John Slye, Acting General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether Respondent, Mildred Jones, doing business as Jones Family Day Care (Jones or Respondent), committed the violations alleged in the Administrative Complaint dated May 29, 2012, and, if so, what penalty should be imposed.
Findings Of Fact At all times material to this case, Respondent operated a licensed day care facility located in Orange County, Florida. On the date of the attempted inspection in this case, Respondent had six children enrolled in her day care program. Petitioner is the state agency charged with the responsibility of licensing and inspecting day care facilities throughout the State of Florida. As part of that responsibility, Petitioner routinely inspects day care facilities to assure compliance with rules and regulations that govern day care programs. On May 4, 2012, Petitioner’s agent, Luz Torres, inspected Respondent’s home. This was not Ms. Torres’ first visit to the home and, like all other visits, she approached the front door during regular business hours and knocked. Upon knocking, Ms. Torres was greeted by a female voice behind the door who advised that she could not let Ms. Torres into the home. The female, later identified as Christine Randall, refused Ms. Torres admission even after the inspector advised that it was required by law. Despite her efforts to enter the home, Ms. Torres was denied access. Ms. Torres could hear the sounds of children within the home but could not from outside the front door determine the identity or number of the voices. Ms. Randall did not advise Ms. Torres that Ms. Jones was in the rear of the property. Ms. Randall did not direct Ms. Torres to go to the rear of the property. Ms. Torres could not view the rear of the property from the front entrance. Ms. Torres’ efforts to reach Ms. Jones by telephone proved fruitless. Ms. Randall has not been screened or had a background check in years. Ms. Randall was not listed as a substitute caregiver for Respondent’s facility. Ms. Jones’ claim that only Ms. Randall’s two children were present on the date Ms. Torres attempted entrance has not been deemed credible. Ms. Jones also claimed Ms. Randall was present helping her prepare for her inspection. Had only two children been present, Ms. Randall could have easily admitted Ms. Torres, had her observe that the home was being prepared for inspection without other children present, and addressed her role as helper to Ms. Jones with only her own children present in the home. Instead, Ms. Randall denied access to the home and failed to direct Ms. Torres to the rear of the property (presuming Ms. Jones was, in fact, there). Ms. Wright’s suggestion that only Ms. Randall’s children were present on the date in question has not been deemed persuasive as Ms. Wright did not enter the home on that date, did not view the home for the entire time, and does not routinely know who is or is not in the home from her vantage as Respondent’s neighbor and friend.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Families enter a final order finding Respondent committed a Class I violation and imposing an administrative fine in the amount of $250.00. DONE AND ENTERED this 1st day of October, 2012, in Tallahassee, Leon County, Florida. S J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of October, 2012. COPIES FURNISHED: Stefanie C. Beach, Esquire Department of Children and Families Suite S-1129 400 West Robinson Street Orlando, Florida 32801-1782 Mildred Jones Jones Family Day Care Home 5027 Caserta Street Orlando, Florida 32819 Gregory Venz, Agency Clerk Department of Children and Families Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 David Wilkins, Secretary Department of Children and Families Building 1, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Marion Drew Parker, General Counsel Department of Children and Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue in this case is whether Petitioner should revoke Respondent's license to operate a foster home for dependent children.
Findings Of Fact Petitioner is the state agency responsible for issuing licenses to operate foster homes for dependent children. Petitioner also prosecutes license discipline proceedings. Respondent is the maternal aunt of three female children, Deanna, Angelique, and Antoinette. Respondent is a retired teacher. She worked for the state of New York before she moved to Florida. She also receives Social Security payments. Prior to 1990, Respondent's three nieces lived with their biological parents in the state of New York. New York adjudicated the children dependent and assigned the children to the foster care of Respondent. The three nieces were approximately 5, 7, an 8 years old. New York paid Respondent $2,100 a month to provide foster care for the three children. New York pays a monthly board rate of $700 per child. Petitioner agreed to supervise Respondent's foster care on behalf of New York. On March 12, 1992, Petitioner and Respondent entered into an Agreement To Provide Foster Care For Dependent Children ("Foster Care Agreement"). Each Foster Care Agreement provided, in relevant part: We will not give the child into the care or physical custody of any other person(s) . . . without the consent of a representative of the Department. * * * We will notify the Department immediately of any change in our address, . . . living arrangements, family composition, or law enforcement involvement. * * * We will comply with all requirements for a licensed foster care home as prescribed by the Department. * * * This child is placed in our home on a temporary basis and is at all times under the supervision and control of the Department. We are fully and directly responsible to the Department for the care of the child. We will take no action to acquire legal custody or guardianship of the child. * * * The Department may remove the child from our home at any time but will, whenever possible, give us at least two weeks notice. Until May 2, 1995, Respondent provided foster care for her three nieces without incident. Respondent was a loving and caring foster parent while the children were young. The children regarded Respondent as their mother. On April 25, 1995, Petitioner increased Respondent's licensed capacity for the period May 2, 1995, through May 1, 1996, to five children. Petitioner assigned two Florida foster children to Respondent. Petitioner paid Respondent $592 a month to provide foster care for the two Florida children. Florida pays a monthly board rate of $296 for each child. Problems developed in the foster home due to overcrowding. Tiffany, one of the two Florida foster children, had an infant child. Tiffany did not maintain good hygiene for herself or her child. Tiffany neglected her child. The additional parenting responsibilities fell on Respondent. Petitioner reduced the overcrowding by removing the two Florida foster children. Petitioner removed Tiffany and her child on December 8, 1995, and removed the second foster care child as soon as the school year ended. Other problems persisted in the foster home separate and apart from the problem of overcrowding. The three nieces were growing up and were beginning to manifest problems from unresolved childhood issues. Each niece had unresolved issues that presented very difficult parenting problems. As the nieces grew older, Respondent did not have the parenting skills necessary to parent her three nieces. Deanna's unresolved issues are illustrative. Deanna weighed under four pounds at birth. The mother was a cocaine addict throughout the gestational period. There was some fetal distress related to withdrawal. Deanna was always irritable. She had a very low frustration tolerance. She had frequent tantrums in which she would throw, spit, and hit her siblings and Respondent. Deanna had been treated with various medications. They included Ritalin, Depakote, Dexedrine, and Clonidine. The other two nieces presented Respondent with similar parenting problems. They hit Respondent when they did not get their way, frequently lied, and stole items from home and school. The problems presented by the three nieces would have been difficult enough to deal with for the best of parents. However, Respondent practiced inappropriate parenting techniques. Respondent used excessive corporal punishment to discipline all of her foster children. She practiced humiliation tactics on her oldest niece. Respondent gave preferential treatment to the youngest niece. Respondent arbitrarily allowed the youngest niece to have privileges denied to the other nieces. Respondent routinely gave the youngest niece excessive amounts of money for nominal tasks. For example, Respondent paid the youngest niece $100 for two hours work around the house. Respondent manages her own money poorly. Her income is insufficient to cover her expenditures. She is evasive and vague about her finances. Respondent became depressed and withdrawn. She remained non-verbal with lengthy periods of silence. She stared at the wall. When counselors and case workers confronted Respondent regarding her depression, she became very angry and agitated. She retreated into denial and relied on adolescent responses to distance herself from those trying to help her and her nieces. Petitioner conducted a critical case review on June 28, 1996. Petitioner provided numerous intervention services for Respondent and her nieces from July through November, 1996. Petitioner provided counseling through The Harbor Mental Health Services ("Harbor"). Respondent and her three nieces attended group therapy at Harbor. In addition, each niece participated in individual counseling at Harbor. Petitioner provided an Intensive Crisis Counseling Program ("ICCP") for Respondent. ICCP is an intense in-home counseling program over six weeks. It is designed to prevent removal of foster children from the home. Petitioner extended the ICCP in Respondent's home for an additional six weeks. Petitioner provided psychological evaluations to determine if Respondent was suicidal or suffered from alcoholism. The evaluations found no evidence of either problem. Therapists attempted to assist the individual family members toward effective communication, establishing boundaries, reasonable consequences, and consistent discipline. The intervention services provided by Petitioner were unsuccessful. Respondent and her nieces persisted in their inappropriate behavior. Petitioner issued a provisional license to Respondent for the period August 2, 1996, through November 2, 1996. The license required weekly visits by a foster care counselor. Petitioner conducted a routine home visit on September 26, 1996. The situation had not improved. On October 4, 1996, Petitioner conducted another critical case review. At the critical case review, the foster care counselor learned from members of the ICCP team that Respondent planned to leave Florida to visit New York. On October 10, 1996, the foster care counselor telephoned Respondent. Respondent confirmed that she was leaving for New York on October 11, 1996. When the foster care counselor asked Respondent to provide the location of her three nieces and the identity of the respite caregiver during Respondent's absence, Respondent stated only that she was leaving the nieces with her mother. Respondent told the foster care counselor that if Petitioner wanted to see her nieces while Respondent was in New York, the foster care counselor should telephone Respondent's home and leave a message on Respondent's voice mail. Respondent's mother would check the messages each day and return the case worker's telephone call. Respondent's manner and tone were abrupt, cryptic, abrasive, and angry. The foster care counselor was unable to obtain any further information. Respondent terminated the telephone call. Respondent violated several requirements of each Foster Care Agreement. Respondent allowed the removal of each niece from her home by someone other than Petitioner's representatives. Respondent gave each foster child into the care or physical custody of another without the consent of Petitioner. Respondent failed to provide Petitioner with adequate notice of any change in the living arrangements or family composition of the foster children. Respondent's mother was not, and never has been, an authorized foster care parent or respite caregiver. Respondent did not consent to Respondent giving her nieces to the physical care and custody of Respondent's mother. Respondent did not give Petitioner the information needed for Petitioner to adequately supervise the foster children during Respondent's absence. Petitioner determined that it could no longer supervise Respondent's foster care on behalf of New York. Petitioner ascertained the location of the foster children. On October 17, 1996, Petitioner removed the nieces from the home of Respondent's mother. Petitioner returned the nieces to the appropriate authorities in New York. By letter dated, October 17, 1996, Petitioner notified Respondent of the action taken. The letter also notified Respondent that the foster care home was closed and that Respondent's license was being revoked.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty of violating material provisions of the Foster Care Agreement for each of her three nieces, failing to effectively supervise and safeguard her foster home, and revoking Respondent's license to operate a foster care home for dependent children. RECOMMENDED this 28th day of April, 1997, in Tallahassee, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 28th day of April, 1997. COPIES FURNISHED: Richard Doran General Counsel Department of Children and Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory D. Venz Agency Clerk Department of Children and Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Ralph McMurphy, Esquire District 13 Legal Office Department of Children and Families 1601 West Gulf Atlantic Highway Wildwood, Florida 34785 Patricia Genovese Qualified Representative 13140 Jessica Drive Spring Hill, Florida 34609 Yvonne B. Butler, Esquire 6341 Gainsboro Avenue Spring Hill, Florida 34609
The Issue Whether Respondent proved the allegations contained in its January 30, 2004, notice of revocation of family day care home registration letter to Petitioner.
Findings Of Fact Respondent is the state agency responsible for licensing and regulating child care facilities, including family day care homes. Petitioner, by and through aid, assistance, and training of the federally funded Weed and Seed Support Group program of the Fort Myers area, began her family day care home provider training in 2001 and, upon completion of training, was registered as a family day care home from July 25, 2002, to June 30, 2003. On June 23, 2003, Respondent acted upon Petitioner's re-registration application to provide child care in her home for up to ten children, effective June 30, 2003, through June 30, 2004. Respondent acknowledged that at the time Petitioner's registration was acted upon, Leona Mark, Petitioner's identified substitute caregiver, had cleared her for background screening but she had not completed either the minimum or 30 hours of family day care home training prior to caring for children in a family day care home. Notwithstanding the situation with Ms. Marks, Respondent's recommendation was to "Issue registration to Deborah Scurry to provide child care in her home for up to 10 children." Ms. Mark did not testify, and the record contains no evidence that Ms. Mark completed her training at any time prior to Respondent's notice of revocation letter of January 30, 2004. Respondent, by letter dated January 30, 2004, informed Petitioner that her family day care home registration was revoked. The revocation letter gave the following basis for revocation: On December 22, 2003, the licensing unit received a complaint that a nine month old sustained a skull facture while in your care. The complaint also stated that you left your daycare children with your 15 year old daughter. During the investigation, you denied ever leaving the daycare children alone and that you always took them with you. The Department, upon conducting interviews, has determined that you did leave the children with your 15-year-old daughter, which is a supervision violation. The letter cited Subsections 402.302(1) and (7) and 402.313(1)(a)4., Florida Statutes (2003), as the provisions determined to have been violated and the authority for revocation of the registration. The Injured Child D.B. is Petitioner's nephew, and he was routinely placed in her family day care home when his mother was working. On Friday morning at approximately 6:30 a.m., on December 12, 2003, L.B., D.B.'s mother, left D.B., a nine-month-old child, in Petitioner's family day care home. At that time, neither L.B. nor Petitioner noticed a bump on D.B.'s head. According to Petitioner, D.B. became "fussy" during morning breakfast at approximately 7:00 a.m., at which time she noticed a small bump on his head. The bump was soft to her touch, and she thought no more about it. During lunch, Petitioner's daughter noticed that the bump had gotten larger and told her mother, who, by telephone, attempted to reach L.B., but was unsuccessful. When L.B. came to pick D.B. up at approximately 6:30 or 7:00 p.m., on December 12, 2003, Petitioner and L.B. discussed the bump on D.B.'s head. L.B. recalled that while playing D.B.'s sibling had hit him on the head with a plastic toy bat at some earlier time and that D.B. had fallen out of bed and hit his head on the floor. L.B. testified that she does not know where D.B. hit his head. It could have happened at home while playing with siblings, when he fell out of bed, or when he was with his father. She was firm in her conviction and belief that D.B. was not injured while in Petitioner's family day care home. There is no evidence of record to account for D.B.'s whereabouts on Saturday and Sunday, December 13 and 14, 2003. On Monday, December 15, 2003, L.B. dropped D.B. off at Petitioner's family day care home. On Tuesday, December 16, 2003, D.B. was again dropped off at Petitioner's family day care home. On Wednesday, December 17, 2003, Petitioner noticed that the bump had gotten larger and called L.B. L.B. came later in the day and carried D.B. to the Emergency Room at Cape Coral Hospital for a medical examination. Medical Examination of the Injured Child A Medical Examination report, dated December 19, 2003, was completed by Susan Sherman (Nurse Sherman), ARNP of the Child Protection Team. The Medical Examination report provides Dr. Michael Weiss' findings, which are as follows: X-RAY FINDINGS: A copy of the report for CT of the head without contrast and a complete skeletal survey are available. These x-rays were read by Dr. Michael Weiss on December 19, 2003. On the CAT scan of the head without contrast, the findings are as follows, "The ventricles are normal in size and midline in position. There is no intracranial hemorrhage. No intra or extra- axial fluid collection. There is a stellate fracture of the left parietal bone. There is also a high right parietal fracture identified. There is no evidence of depression on either side. There is an associated soft tissue hematoma." The impression of the CT scan is as follows: "Biparietal skull fractures, rule out child abuse." Findings and recommendations were reviewed with Dr. Burgett at the time of study. (Dr. Burgett is a pediatrician at the Physician's Primary Care.) . . . (emphasis added) Notwithstanding the findings of Dr. Weiss, Nurse Sherman reported her impression and plan as follows: IMPRESSION: Biparietal skull fractures. From the x-ray report, the skull fracture on the left side of his head is a stellate fracture. There is also a fracture of the parietal bone on the right side of the head. These injuries are consistent with physical abuse. PLAN: The child will be followed medically by his primary care provider. At this time, I do not recommend the child be sheltered. My only recommendation is the child not return to the day care setting. This mother needs to find alternative childcare for [D.B.]. It was reasonable for Nurse Sherman to take the protective approach and recommend that D.B. not return to the family day care home because she believed Petitioner had a history of utilizing substitute caregivers who had not completed required training, and, she also believed that on more than one occasion in the past, Petitioner's child-to-child caregiver ratio was exceeded. An acceptable ratio requires a specific number of caregivers per the number of children within a specific age range. Petitioner had more children than she had certified caregivers required for the separate age range(s) of children found in her family day care home. However, the Department did not charge "past violations of overcapacity" and/or "utilizing substitute caregivers who were not properly qualified" in the January 30, 2004, revocation letter. The evidence of record was inconclusive to demonstrate to any reasonable degree of certainty: first, the date D.B. sustained his injury/injuries; second, whether D.B. was injured while in the care of Petitioner; third, whether D.B. was injured while in the care of his mother; or forth, whether D.B. was injured while in the care of his father. On December 22, 2003, Respondent received a compliant report of a license violation, to wit: over-capacity and background screening. The complaint report was assigned to and investigated by Celeste Davis and a second unnamed person. Ms. Davis closed her report on December 23, 2003. Ms. Davis' investigation found eight children in care: one infant, three preschoolers, and four school-age children. Petitioner was within her ratio at the time of this inspection. Through interviews with the children at the day care, Ms. Davis determined that Petitioner, on occasion, left her day care children alone with L.S., her teenaged daughter, who was not a qualified caregiver. Regarding D.B.'s head injury, Petitioner informed Ms. Davis that the injury did not occur when D.B. was in her care and probably occurred the night before D.B. was brought to her home. Ms. Davis cited Petitioner for one license violation, leaving her day care children alone with her teenage daughter. Ted Leighton investigated an Abuse Hotline Report filed on December 19, 2003. Mr. Leighton did not testify but his written report was introduced into evidence without objection. Respondent argued in its post-hearing submittal that information Mr. Leighton received from his interviews with four minor children, his review of reports from medical personnel and health care providers, and his conclusion that "it was 'probably' on December 15 or 16, 2003, D.B. was injured at the family day care home accidentally by another child when the Petitioner was not present," as fact. Respondent's argument is not based on facts, but upon uncorroborated hearsay, assumptions and conjectures of Mr. Leighton. For those reasons Respondent's argument is rejected. In support of Mr. Leighton's conclusions, Respondent cited the testimony of Nurse Sherman. Nurse Sherman concluded that D.B.'s injuries were "very serious and 'could have' been life threatening, 'could have' happened accidentally 'if' another child jumped off a bed, landing on D.B., while D.B. was laying on the floor with a hard object under his head." The intended purpose of Nurse Sherman's testimony was twofold: to demonstrate the severity of D.B.'s injury and the location D.B.'s injury was sustained. The inference drawn by Respondent was that a lack of supervision was the primary cause of the injury. This argument is likewise not based upon facts found in the evidence of record. Nurse Sherman's conclusions are but an extension of Mr. Leighton's assumptions and conjectures. This argument is likewise rejected. D.B.'s mother recalled one occasion when D.B. had fallen out of her bed at home. She testified that her older daughter told her that while playing with D.B., he had fallen from his bed to the floor on more than one occasion at home. She speculated that D.B. could have been injured at home or by her three-year-old son, who when playing with D.B. had struck him on his head with a plastic toy bat. L.B. testified further that she and Petitioner are related and that her three children have been continuously in Petitioner's family day care home since Petitioner has been qualified as a provider. She was certain that Petitioner did not and would not injure her children. She testified that D.B. "could have" suffered the injury to his head when he was in the care and custody of his father over the weekend. Of the several possibilities of the date, time, place, and in whose custody D.B. may have been when the injury occurred, the mother was not certain. The inconclusive and conflicting evidence regarding D.B.'s whereabouts and the identification of the person or persons who had custody of D.B. when his injury occurred is, as it must be, resolved in favor of Petitioner. Respondent failed to prove by clear and convincing evidence that D.B. was injured when in the care, custody, and control of Petitioner while in the family day care home as alleged in its notice of registration revocation dated January 30, 2004. Caregivers supervision and Over capacity Respondent demonstrated that as of June 13, 2002, neither Petitioner's 15-year-old daughter nor any other person present on the days of inspection who was serving as a caregiver was properly trained. By evidence of record, Respondent demonstrated that Petitioner was over capacity, based on the child-to-child caregiver ratio on or about June 2, 2001. With knowledge of the one occasion of over capacity by Petitioner, Respondent approved Petitioner's re-registration application on June 23, 2002, effective through June 30, 2003, and permitted Petitioner to provide care for up to ten children. The approved re-registration increased Petitioner's child care capacity. Respondent's January 30, 2004, letter did not allege an over capacity violation, and no other pleading filed by Respondent contained information from which Petitioner could have been so informed of the over capacity allegation. Respondent failed to prove that D.B. sustained his head injuries while in Petitioner's family day care home. Respondent has shown that Petitioner did on one occasion leave children in the care of a person or persons, including Petitioner's 15-year-old daughter, who were not trained, certified, or qualified as substitute caregiver(s). There is no evidence of record that Petitioner's violation of child-to-child caregiver ratio demonstrated either gross misconduct and/or willful violation of the minimum child care standards within the meaning of the statutes and rules charged. The evidence demonstrated that Petitioner did not fully understand the child-to-child caregiver ratio differentiations by age groups. Petitioner's lack of understanding does not absolve her of the obligation to know all rules and regulations. It does, however, provide a reasonable inference that the out-of-ratio situation was not an intentional act on behalf of Petitioner. Weed and Seed Support Group in the Fort Myers Area Petitioner presented the testimony of Susan B. Davis, a family child care specialist employed by the Weed and Seed Support Group of the Fort Myers area. The purpose and organizational goal of this federally funded agency is identification of economically disadvantaged persons who are interested in becoming day care providers in their homes in their respective communities. The methodology of the agency is to first assist those persons identified with acquiring required training and certification. Second, the agency assists the trained candidate(s) with the application process through Respondent. According to Ms. Davis, the federal grant overall objective is twofold: first, to seek, find, and train family day care home providers in the community and second, to provide a source of employment and income to the provider's family. As a direct result of this community service, other families within the economically disadvantaged community will have local and affordable family child care service within their respective communities. By accomplishing the identification and training of community child care providers, employed and unemployed parents in need of day care in the various Fort Myers communities will be the beneficiaries of the available family day care home, thereby enabling some parents to become employed and enhancing employment opportunities for employed parents. The Weed and Seed Support Group of the Fort Myers area offers free help and support to self-employed child care providers. In 2001, Ms. Davis identified and assisted Petitioner in becoming a qualified child care provider. Ms. Davis assisted Petitioner in acquiring her 30 hours of training to become a qualified child care provider. She introduced Petitioner and others to the rules and regulations of Respondent pertaining to child care providers. Thereafter, she would visit with Petitioner and others to whom she rendered assistance only as her time and scheduling permitted. Ms. Davis' last visit with Petitioner occurred sometime before Christmas of 2003. Though she had no knowledge of the injury suffered by D.B., she offered to render assistance and additional training, including assisting Petitioner in acquiring a functional understanding of Respondent's rules, regulations, proper maintenance of required records, and correct completion of required reports and forms, that would enable Petitioner to continue her self-employment status as a qualified child care provider offering daily child care services within her community.
Recommendation Based upon the foregoing Finding of Facts and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services enter a final order: Finding that Petitioner left children at her family day care home during her absence from the premises under the supervision, care, and control of unqualified substitute caregivers; and Imposing on Petitioner a fine in the amount of $250.00; and, upon payment thereof, Set aside and vacate revocation of Petitioner's family day care home license/registration; and Issue to Petitioner a six-month provisional license. DONE AND ENTERED this 20th day of September 2004, in Tallahassee, Leon County, Florida. S FRED L. BUCKINE 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 20th day of September, 2004.
The Issue The issue in this case is whether HRS should grant the Petitioner's application a license to operate a foster care home for dependent children.
Findings Of Fact The Petitioner, Christopher Murphy, is a single male, born July 27, 1966. He wants to be a foster care parent for up to two teenagers, same sex, including those with a history of having been abused. In approximately September, 1994, the Petitioner approached the Children's Home Society (CHS), located in Orlando, Florida, to inquire about applying for licensure to operate a foster care home for dependent children. CHS is and was under contract with the Department of Health and Rehabilitative Services (HRS) to screen prospective licensees. The screening process included, among other things: interviews with the Petitioner; a home study; review of written personal references on behalf of the Petitioner; evaluation of the Petitioner's participation in the HRS-approved Model Approach to Partnerships in Parenting (MAPP) program. After conducting its training and screening of the Petitioner, CHS recommended the Petitioner for licensure "for two children, same gender, ages 12 to 18 years," and the Petitioner filed his application for licensure on or about May 3, 1995. The Petitioner and the "relief persons" he designated in his application underwent background screening, and no disqualifying information was found. However, by letter dated July 11, 1995, HRS gave notice of intent to deny the Petitioner's application for the following reasons: According to Florida Administrative Code Chapter 10M-6, it is the opinion of the Department that based on your own experience with depression, your single lifestyle and your sexual orientation that your desire to be a foster parent is not in the best inte- rest of the children in the custody of Health and Rehabilitative Services. You have indicated that you have doubts about your ability to work with HRS in seeking rehabilitation of the families with children in foster care, that you have limited patience with bureaucracy, and that you would not like to see the foster children in your care return to their parents. Professional counseling to relieve distress over your sexual orientation did not resolve that issue. These consider- ations lead HRS to believe that it would not be in the best interest of children in state custody to be placed with you in foster care. The Petitioner's Mental and Emotional Status The evidence is that the Petitioner experienced some difficulties growing up as one of ten siblings. His mother was very religious but, at the same time, appears to have been a strict disciplinarian and, at times, almost "cruel" to the children. In addition, the Petitioner tended to be a loner during his early years. He was physically weak and was susceptible to being bullied by other children. In addition, he played differently from other boys his age, preferring to spend his time reading Jane Austen and the Bronte sisters rather than playing with friends. As the Petitioner grew older, he increasingly recognized signs that he was homosexually oriented. These signs disturbed him because a homosexual orientation was contrary to his desires and to what he understood to be the morals of his family and religion. When the Petitioner went to college in the mid-1980's, he still would have been considered a "social isolate," and the combination of stresses from leaving home, living on his own at college and dealing with his sexual orientation resulted in depression requiring individual psychotherapy and medication (at first Impramine and later, in 1992, Prozac). Dealing with his mother's death in 1988 caused the depression to recur, but the Petitioner was able to recover with the help of the psychotherapy and medication. Since 1988, the Petitioner has suffered periodic bouts of mild depression. (Medication he takes for rapid heartbeat tends to cause some depression as a side effect.) However, the Petitioner's major depression is in remission, and he has been able to control the mild depression by the appropriate use of medication. The Petitioner's physicians advise him to continue on medication and seek therapy as necessary. In recent years, the Petitioner has resolved his conflicted feelings about his mother, as well as many of the conflicts he had with members of his family. The Petitioner also has made great strides to resolve his conflicted feelings about his sexual orientation. At the same time, he still rejects the values and lifestyle of the gay world and continues to accept most of the basic tenets of traditional values and lifestyle. As a result, there is no indication that the Petitioner is trying to use the foster parent program in order to make a political statement about gay rights. However, the difficulty the Petitioner will continue to face is that traditional society does not necessarily always accept him. This probably will make being a foster parent more difficult for the Petitioner. The Petitioner also has made considerable progress making and maintaining viable personal relationships. He has been able to work responsibly and well in the positions he has held with Universal Studios in Orlando and has made and maintained several positive and valuable friendships through work and elsewhere. In the words of a licensed psychologist who evaluated him in August- September, 1995, the Petitioner is "on the mend" in this regard; by this he meant that the Petitioner is making good progress in the right direction. If major depression were to recur, the Petitioner obviously would have difficulty persevering, and probably would be unable to persevere, in seeing a foster child through to the end of his or her temporary placement. But in recent years the Petitioner has been able to control depression by appropriately using his antidepressant medication, monitoring himself for symptoms of depression, and seeking appropriate therapy as needed. As long as he continues to do so, it is not anticipated that major depression will recur. HRS has licensed others with mental and emotional status similar to the Petitioner to be foster parents. It is true that there is a possibility that the stress of being a foster parent could cause the Petitioner's depression to recur. In many ways, teenage is the most difficult age bracket for foster care, and abused teenagers can present even greater difficulties. But HRS maintains control over the children to be placed with the Petitioner, and an effort could be made not to place the most difficult foster care challenges with the Petitioner, at least initially. In addition, HRS and the Petitioner could cooperate in monitoring the effects that the stress of being a foster parent have on the Petitioner. There is a good chance that the Petitioner's depression will not recur as a result of being a foster parent. The Petitioner's Parenting Experience The Petitioner has no children of his own and has no parenting experience. He grew up in a family of ten children but tended to spend much of his time apart from them. The Petitioner did some baby-sitting during his teens. But otherwise, through his college years, the Petitioner did not exhibit much inclination or desire to be around or work with children. The Petitioner changed as he reached adulthood. He now has a very strong desire to help teenage children by acting as their foster parent. In recent years, he has had the opportunity to work with families having their pictures made at the Universal Studios park in Orlando and has found that he had success interacting with the young members of those families. While he has not had much experience taking care of teenagers, he also has enjoyed spending considerable time in recent years interacting with the young children of friends and other family members. (Living in the a vacation center, many siblings and other members of his family have taken advantage of the opportunity to visit him since he moved to Orlando.) The Petitioner seems to interact well with the children in several arenas--facilitating play, sharing snacks and meals, helping with homework, going on picnics and other outings, suggesting and participating in other positive family activities. His friends' children like him, and his friends trust him with tending to their children. On the other hand, the Petitioner's experience taking care of children is limited. The Petitioner's experience as the sole caretaker responsible for children is relatively sparse and of relatively short duration. While the Petitioner has done some baby-sitting for family and friends, most of the time he has spent with children has been while their parents were around. The Petitioner has not had occasion to be responsible for children overnight or for extended periods of time (certainly not for 24 or more hours). He also has not had much other experience working with children in other settings. He has not, e.g., worked or volunteered as a counselor for church or civic youth groups or camps. Due to the nature of the Petitioner's experience with children, and his lack of experience with teenagers, it is not certain that the Petitioner will succeed as a foster parent of teenagers, or children of any age. It also is not certain that the Petitioner himself will thrive as and enjoy being a 24- hour a day foster parent. It would be desirable both for the Petitioner and for the children to be placed with him for the Petitioner to get more experience before beginning to act as a foster parent. But, on the other hand, the same probably could be said for most first-time parents. It is hard to truly know what it is like to be a parent until you become one. HRS has no non-rule policy establishing clear minimum experience standards for licensure as a foster parent. HRS has licensed others to be foster parents with as little or less parenting experience compared to the Petitioner. The licensing administrator who testified for HRS stated that HRS never has issued a provisional license to a first-time applicant and that HRS would not issue one for the purpose of evaluating the provisional licensee while the licensee gains additional parenting experience. The Petitioner's Ability to Be a "Team Player" On the "Strengths/Needs Work Sheet" for various sessions of the Petitioner's MAPP training, the Petitioner wrote: (Needs as a Result of Meeting 2) I am intolerant of those who hurt children and may have a difficult time holding back and/or editing my language in their company (during visits). I have limited patience with bureaucracy. If something is not getting done, I will do it myself regardless of who gets offended. (Needs as a Result of Meeting 5) I probably will assume I am a better parent than the child's birth parents, and I don't think I'll want the child to return to his biological family. As CHS conducts MAPP training, prospective foster parents are encouraged to use the "Strengths/Needs Work Sheet" to honestly express their deepest concerns about their ability to succeed as foster parents. Then, the trainers help the trainees deal with those concerns. CHS' MAPP trainers believed that, during the course of the training sessions, the Petitioner was able to work through his concerns and grow through the training process. He was open to the trainers' ideas and actively participated in the sessions. In their estimation, the Petitioner's comments, even when in the fifth session, should not be taken as an indication that the Petitioner would not be able to work in partnership with HRS and birth families as a team player. The licensing administrator who testified for HRS was not familiar with how CHS conducted MAPP training and was not in a position to conclude, as she did, that the Petitioner's statements on the "Strengths/Needs Work Sheet," in and of themselves, show that the Petitioner will not be able to work in partnership with HRS and birth families as a team player. The Petitioner has had no difficulty working within the bureaucracy at Universal Studios. He has had good relationships with his supervisors and has had no difficulty accepting their authority over him. Nothing about his employment experience would indicate that the Petitioner would have difficulty working in partnership with HRS and birth families as a team player. The Petitioner's Single Life Style On the "Strengths/Needs Work Sheet" for various sessions of the Petitioner's MAPP training, the Petitioner wrote: (Needs as a Result of Meeting 2) I am responsible, but do not lead a structured life. I eat when I'm hungry, sleep when I'm tired, have ice cream for breakfast . . . (Needs as a Result of Meeting 3) I may not be able to go out all night and do things as spontaneously as I do. (Needs as a Result of Meeting 5) It's just me - one on one. If I had a spouse to back me up when making rules or administer- ing discipline, things would be easier. On the other hand, the Petitioner also counted among his strengths: (Needs as a Result of Meeting 3) It's just me. . . . A foster child has only one person to adjust to. (Needs as a Result of Meeting 4) I have no other people living in my home and can devote a majority of my free time to my foster child. (Needs as a Result of Meeting 5) As a single male with no children, I will be the only one affected. These comments indicate an awareness on the Petitioner's part that his life will change if one or two foster children are placed in his home. As he recognizes, being single will make it more difficult in some ways, but somewhat easier in other ways. What can make being a single foster parent most difficult is not having the emotional and intellectual support and help of another adult in the home. A single foster parent must attempt to compensate by having adult family and friends who are willing and able to serve some of those needs. Several of the Petitioner's friends are willing and able to serve in this role for the Petitioner. All have met HRS's screening requirements. One thing a single foster parent cannot replace is the inability to demonstrate (and teach through) a successful marriage. But this inability clearly is not disqualifying. The Petitioner's Sexual Orientation HRS's notice of intent to deny the Petitioner's application mentioned the Petitioner's sexual orientation. But at final hearing HRS took the position that sexual orientation itself was not a ground for denial of the Petitioner's application. While not disqualifying in itself, being a homosexual foster parent undeniably will present special problems. First, it already has been mentioned that it can be a challenge for a homosexual to function in traditional society, and trying to function as a foster parent in traditional society surely will present its own special challenges. Along those lines, it is foreseeable, e.g., that a foster parent's homosexuality could be unacceptable to the birth family. In addition, since unmarried cohabitation by two or more adults is disqualifying, the Petitioner would be restricted to living alone. Lastly, many foster parents later adopt children placed with them, but the Petitioner will not be able to because homosexuality is disqualifying for purposes of adoption.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Health and Rehabilitative Services enter a final order issuing the Petitioner a license to operate a foster home for up to two children, same sex, ages 12 to 18 years of age. DONE and ENTERED this 27th day of June, 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 27th day of June, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-4150 To comply with the requirements of Section 120.59(2), Florida Statutes (1995), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1. Rejected that he applied for a license then; he initiated the screening process and preservice training at that time. Otherwise, accepted and incorporated. 2.-4. Accepted and incorporated. 5.-8. Accepted and incorporated to the extent not subordinate or unnecessary. 9. The characterization "extensive" is rejected as not proven; otherwise, accepted and incorporated. 10.-12. Accepted and incorporated. 13. The date "July 11, 1996" is rejected as contrary to the evidence. (It was 1995.) Otherwise, accepted and incorporated. 14.-16. Accepted and incorporated to the extent not subordinate or unnecessary. 17. Accepted but subordinate and unnecessary. 18.-22. Conclusions of law. Accepted and incorporated. Conclusion of law. Respondent's Proposed Findings of Fact. 1.-3. Accepted and incorporated. 4.-6. Conclusions of law. 7.-9. Accepted but subordinate and unnecessary. Rejected as contrary to the greater weight of the evidence. (The first testimony referred to Noll's knowledge of whether the Petitioner was on medication at the time of the hearing. Noll was not "pressed" for the additional testimony; he was just asked a different question.) Rejected as contrary to the evidence that Noll "failed to follow through." Also, subordinate and unnecessary, as the question for determination is whether the evidence at final hearing supported licensure. Rejected as contrary to the greater weight of the evidence. (Again, the question for determination is whether the evidence at final hearing supported licensure.) Rejected as contrary to the greater weight of the evidence that he did not present any experience in his application; he presented more at final hearing after being informed that HRS included experience in the "single lifestyle" ground for the July 11, 1995, notice of intent to deny. Again, the question for determination is whether the evidence at final hearing supported licensure. Rejected as contrary to the greater weight of the evidence; he presented more at final hearing. See 13., above. 15.-16. Generally, accepted. The Petitioner's exact statements are incorporated. Rejected as contrary to the greater weight of the evidence that the Petitioner's purpose was to "avoid working with birth families." (The gist of Noll's discussion with the Petitioner appears to have been that foster parenting older children generally makes reunification less of a concern; either reunification would not be a viable option or, if considered, the older child would have more say in the matter. Otherwise, accepted but subordinate and unnecessary. Accepted but, as previously ruled, subordinate to the ultimate issue for determination, and unnecessary. COPIES FURNISHED: Ann E. Colby, Esquire 305 Elkhorn Court Winter Park, Florida 32792 Laurie A. Lashomb, Esquire Department of Health and Rehabilitative Services 400 West Robinson Street, Suite S-827 Orlando, Florida 32801 Gregory D. Venz Acting Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-1600 Richard Doran General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-1600
