99-003441 Debby Sclafani vs. Department Of Children And Family Services Status: Closed Recommended Order on Tuesday, November 9, 1999.

Summary: Petitioner had a restraining order against her to keep her from seeing a child that she wanted to adopt. The child wanted to be adopted by her current foster parents.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEBBY SCLAFANI, )

)

Petitioner, )

)

vs. ) Case No. 99-3441

)

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on October 12, 1999, at West Palm Beach, Florida, before Susan B.

Kirkland, a designated Administrative Law Judge of the Division

of Administrative Hearings.

APPEARANCES

For Petitioner: Mary Jane Fitzgerald, Esquire

Harvey Building, Suite 1300

224 Datura Street

West Palm Beach, Florida 33401

For Respondent: Colleen Farnsworth, Esquire

Department of Children and

Family Services

111 South Sapodilla Avenue, Suite 201

West Palm Beach, Florida 33401

STATEMENT OF THE ISSUE

Whether Petitioner's application to adopt L. H. should be

granted.

PRELIMINARY STATEMENT

By letter dated June 30, 1999, Respondent, Department of

Children and Family Services (Department), notified Petitioner,

Debby Sclafani (Sclafani), that her application to adopt had been

denied. By letter dated July 23, 1999, Sclafani requested an

administrative hearing. The case was forwarded to the Division

of Administrative Hearings on August 11, 1999, for assignment to

an Administrative Law Judge. The case was originally assigned to

Administrative Law Judge William J. Kendrick and was transferred

to Administrative Law Judge Susan B. Kirkland to conduct the

final hearing.

At the final hearing Petitioner's Exhibits 2, 3, and 5 were

admitted in evidence. Respondent's Exhibits 1-7 were admitted in

evidence.

No transcript was ordered. The parties filed proposed

recommended orders which have been considered in rendering this

Recommended Order.

FINDINGS OF FACT

1. Petitioner, Debby Sclafani (Sclafani), is a former

foster parent for Respondent, Department of Children and Family

Services (Department). On March 4, 1998, L. H., a foster child

born on December 18, 1993, was placed in Sclafani's home.

2. L. H. had been sexually abused when she lived with her

biological mother. When she came to live with Sclafani, L. H.

acted out sexually, including masturbating. L. H. also engaged

in self-mutilating behavior and had nightmares. L. H. was being

seen by Marion Koch, a therapist at the Center for Children in

Crisis. In midsummer of 1998, Sclafani also began seeing a

therapist, Gloria Watt, at the Center for Children in Crisis.

3. During the therapy sessions with Sclafani, Ms. Watt

became concerned with Sclafani's preoccupation with L. H.'s

sexual behavior. Ms. Watt told the therapist that she had asked

L. H. which finger she used when masturbating and to demonstrate

what she did. The child complied with Sclafani's request. If

Sclafani caught L. H. masturbating, she would take the child's

stuffed toys away as punishment.

4. Ms. Koch and Ms. Watt attempted to educate Sclafani

about parenting and child development, including ways to redirect

L. H.'s sexual behavior. The therapists told Sclafani to stop

focusing on L. H.'s masturbation, but Sclafani was unable to deal

with the child's sexual behavior and could not follow the

suggestions of the therapists.

5. In September 1998, the Center for Children in Crisis

shut down, and the therapy sessions with L. H. and Sclafani

stopped.

6. Sometime during the fall of 1998, the parental rights of

L. H.'s mother were terminated. It was the Department's policy

that once a parent's rights are terminated, the foster parent

should not talk to the child again about the parent. However,

after L. H.'s mother's rights were terminated, Sclafani continued

to pray with L. H. for L. H.'s mother's sins.

7. Sometime after L. H.'s mother's parental rights were

terminated, L. H.'s father's parental rights were also

terminated. L. H. became a candidate for adoption, and her case

was transferred to the adoption section of the Department.

Sclafani applied to the Department to adopt L. H.

8. L. H. was given a pre-adoptive psychological evaluation

by Dr. Shelia King. L. H. told Dr. King that Sclafani spanked

her and slapped her face. L. H. had been told by Sclafani not to

tell the doctor that she had been spanked. When L. H. was

returned home after the evaluation with Dr. King, L. H. told

Sclafani, "The doctor knows that you whoop me."

9. When Sclafani became L. H.'s foster parent, she signed

an "Agreement to Provide Substitute Care for Dependent Children"

and agreed to abide by the following provisions of the agreement:

1. This child is placed in our home on a

temporary basis and is at all times under the

supervision of the Department.

2. We are fully and directly responsible to

the Department for the care of the child.

3. We will take no action to acquire legal

custody or guardianship of the child.

4. We will hold confidential all information

about the child and his family and will

discuss such information only with a

representative of the Department or with

appropriate specialists at the request of the

Department.

* * *

8. We will participate with the Department

in planning for the child, which may include

adoption placement, transfer to another

foster home, or return to parent(s) or

relative(s).

* * *

15. We will comply will all requirements for

a licensed substitute care home as prescribed

by the Department.

16. We will immediately report any injuries

or illnesses of a child in our care to the

Department.

* * *

19. We will abide by the Department's

discipline policy which we received during

MAPP training.

10. Sclafani agreed to and executed the Department's

discipline policy which states, "The substitute care parents must

not use corporal punishment of any kind."

11. Sclafani admitted to spanking L. H. on several

occasions.

12. The Department referred Sclafani to Dr. Shelia King for

a psychological evaluation on January 5, 1999. In her evaluation

report, Dr. King stated:

. . . [Sclafani] would come to expect a child

to fill her needs as opposed to her filling

the child's. Should a conflict arise,

Ms. Sclafani would put her own needs first.

As an aside, she would not accept or believe

this was occurring. Due to her inability to

take care of herself emotionally, she will

become depressed and withdrawn from time to

time.

* * *

It must be noted that no small measure of

concern results from the fact that

Ms. Sclafani attempted to prep this child

prior to her (the child's) evaluation by

admonishing her not to advise this

psychologist of the fact that Ms. Sclafani

spanks her upon occasion. This indicates

that while aware that this is not a behavior

which would be acceptable to the Department

of Children and Families, she nevertheless

will engage in it as a method of discipline.

More distressing is that she then not only

will lie about it herself but also encourage

the child to do something which is clearly

wrong and tell a lie by omission in order to

protect herself. A more appropriate response

would be to merely admit that she believes

spanking is an appropriate form of punishment

and seek advice on how to handle misbehavior

in a more acceptable fashion.

* * *

The area of concern most prominent in this

evaluation is Ms. Sclafani's relationships.

Testing indicates someone who is narcissistic

and dependent upon others, including her

child, for validation and self-esteem. Her

history suggests a lack of boundaries between

her own parent and herself. Some of

Ms. Sclafani's comments suggest this same

lack of awareness and boundaries with her

foster child. While she does seem open to

listening to interpretations and looking at

her own behavior, testing also indicates that

while she may appear to do so, anger and

resentment build, eventually causing her to

deny any problems or to reach out for help,

and inhibit what appears to be genuine

insight.

13. Dr. King recommended that the adoption proceedings be

delayed and that Sclafani enter individual psychotherapy.

Sclafani had begun working at a child care center, and her

medical benefits did not begin until April 1999. Due to the lack

of insurance, Sclafani postponed seeing a therapist until April.

She attended therapy sessions two times.

14. In May 1999, Sclafani engaged in a verbal altercation

with her supervisor at the day care center where she worked. She

told her supervisor that she was giving her thirty-day notice and

quitting her job. The supervisor informed her that was not

necessary because she was fired. The bottom line was that

Sclafani was without a job and medical benefits. She had

inherited some money from her father's estate and decided to take

a vacation.

15. When the Department learned that Sclafani was without a

job, a decision was made to remove L. H. from Sclafani's foster

home. On May 21, 1999, L. H. was removed from her day care

center and placed in another foster home with a couple who have

applied to adopt her.

16. Sclafani was asked to pack a suitcase for L. H. with

her clothes and other belongings. Sclafani did pack the

suitcase, but she also hid notes to the child among the clothes

in the suitcase.

17. A few days after L. H. was removed from Sclafani's

care, Sclafani met with L. H., her guardian ad litem , and

representatives from the Department to bring closure to the

placement. Sclafani became very emotional during the meeting,

which upset the child.

18. On July 1, 1999, Sclafani went to the day care center

where L. H. had been placed by her new foster parents to see

L. H. Sclafani told the assistant director of the day care

center that she was inquiring about the pre-kindergarten class

for a neighbor's child. The assistant director took her to the

classroom where L. H. was in class. Sclafani immediately walked

over to L. H. and asked her if she were happy. Sclafani told

L. H. that if L. H. was not happy that she would fight for her.

L. H. began to cry hysterically. The assistant director realized

who Sclafani was and asked her to leave the building.

19. On the same day as the day care incident, L. H. and her

foster father were eating ice cream outside an ice cream shop

located in a shopping plaza. L. H. told her foster father that

she saw Sclafani, who was in her car turning up a lane in the

parking lot. A few minutes later, Sclafani drove by again in the

opposite direction, waved at L. H., and left the shopping plaza.

20. Prior to the incidents at the day care center and the

shopping plaza, L. H. had been transitioning to her new home very

well. Following the incident at the day care center, L. H.'s

play in therapy became aggressive, and L. H. told her therapist

that she was afraid Sclafani would take her and expressed anxiety

about the likelihood of this happening.

21. Because of Sclafani's actions, the Department sought a

restraining order against Sclafani. On July 29, 1999, Judge

Ronald V. Alvarez entered an Order Granting Emergency Petition

for Injunction, ordering that Sclafani refrain from contacting

L. H. wherever the child may be found while the court had

jurisdiction over the child. In the order, the court stated:

. . . Contact with Ms. Sclafani will hinder

the child's future attachment with another

family and create more, further damaging

confusion in the child's life. The child's

permanency is undermined by Ms. Sclafani's

contact or attempted contact with her. The

granting of a protective order is necessary

to prevent such acts from happening.

Permanency with her new family cannot be

attained until [L. H.] is free to live

without the fear of interruption by

Ms. Sclafani. This order is necessary to

protect the child's emotional and mental

health from being at risk of grave and

lasting harm and to support her permanency.

21. Since L. H. has been removed from Sclafani's home, she

has ceased masturbating and no longer self-mutilates. She is

happy and well adjusted in her new home. According to her

guardian ad litem , L. H. has blossomed and is now being a child

in contrast to her actions when she was with Sclafani, where

L. H. appeared to be "cowed" by Sclafani.

22. L. H. has always wanted a daddy, and now she has a

foster father in her new home. Sclafani had chosen a friend to

be L. H.'s father figure. Unfortunately, her choice had an

active, non-expiring domestic violence restraining order against

him.

23. L. H. loves her new foster parents and wants to be

adopted by them. The new foster parents love L. H. and want to

adopt her. Since L. H. has been with her new foster parents, she

has not asked to see Sclafani.

24. Sclafani had listed her pastor and his wife as a

reference on her application for adoption. The pastor and his

wife indicated on the reference that they did not know Sclafani

well enough to make a recommendation that she was qualified to

adopt a child.

25. In order to process the adoption application, the

Department looks at the applicant's medical history. Sclafani's

medical records reflect a high frequency of doctor visits and

current, on-going prescriptions for anti-anxiety medications.

26. The evidence was unclear if Sclafani had found gainful

employment since the termination of her employment in May 1999.

The evidence did show that while she was a foster parent for

L. H. that she worked for three different employers and was

unemployed when L. H. was removed from her care.

CONCLUSIONS OF LAW

27. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. Section 120.57(1), Florida Statutes.

28. Petitioner, as the applicant, has the burden to

establish entitlement to the relief sought. Balino v. Department

of Health and Rehabilitative Services , 348 So. 2d 349 (Fla. 1st

DCA 1977) and Florida Department of Transportation v. J.W.C.,

Co. , 396 So. 2d 778, 788 (Fla. 2d DCA 1981).

29. Section 409.145, Florida Statutes, provides that the

Department is to conduct, supervise, and administer a program for

dependent children. Among the goals to which the Department's

services are to be directed is the permanent placement of

children for which reunification with their families would not be

in the best interests of the child.

30. Rule 65C-16.001(17), Florida Statutes, defines the

suitability of intended placement of a child for adoption as

including:

[T]he fitness of the intended placement with

primary consideration given to the welfare of

the child and the fitness and capabilities of

the adoptive parents to function as parents

for a particular child.

30. Rule 65C-16.005(6), Florida Administrative Code,

provides guidelines for the evaluation of applicants wishing to

adopt a child and states:

(6) The best interest of the child is

the paramount concern in making an adoptive

placement decision. Factors to be considered

in making adoptive placement decisions

include:

(a) The child's choice;

* * *

(f) Marital Status.

1. Families in which there is a mother

and a father are considered important for the

well-rounded growth and development of a

child. The department will give primary

consideration to the applications of couples

who have been married a sufficient length of

time to establish stability. . .

2. The department will accept the

application of single persons seeking to

adopt a child. Single parent placements will

be considered when a suitable two-parent home

is unavailable and the alternative for the

child is extended foster home care, when

there is an already existing relationship

which is meaningful and healthful for the

child or when the particular needs of a

specific child can best be met by a single

parent.

* * *

(h) Income. The family must have

income and resources to assure the financial

stability and security to meet expenses

incurred in adequate care of the family.. . .

Management of current income and the ability

to plan for future changes in income so that

the child's social, physical and financial

needs will be met, are as important as the

amount of income.

* * *

(j) Health. The physical, mental and

emotional health of the prospective adoptive

household must not jeopardize the safety and

permanency of the child's placement and will

be considered in determining the best

interest of the child.

* * *

(1) Working parents. It is desirable

that one parent be free to devote full time

to the care of the child for a period of time

after placement. The exact length of time is

determined by the needs and age of the child

and the needs of the child must be given

priority over the work situation of the

parent.

31. Considering the factors used to evaluate an applicant

who wishes to adopt, it is not in the best interests of L. H. to

approve Sclafani's application to adopt. The child wishes to be

adopted by her new foster parents, and she has adjusted well and

is happy with them. Sclafani is a single woman while the new

foster parents include a mother and a father. L. H. has always

wanted a daddy. It is not clear from the evidence whether

Sclafani is gainfully employed at the present. The evidence did

show that she held at least three different jobs while she was

caring for L. H., and at the time that L. H. was removed from her

custody Sclafani did not have a job or medical benefits.

Sclafani's emotional problems do not make her a good candidate to

adopt a child. There is a restraining order against Sclafani

from having any contact with L. H., resulting from Sclafani's

actions regarding L. H. after L. H. was placed with new foster

parents. Additionally, numerous concerns were raised by Dr. King

in her psychological evaluation report.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that a final order be entered denying

Debby Sclafani's application to adopt.

DONE AND ENTERED this 9th day of November, 1999, in

Tallahassee, Leon County, Florida.

___________________________________

SUSAN B. KIRKLAND

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 9th day of November, 1999.

COPIES FURNISHED:

Mary Jane Fitzgerald, Esquire

Harvey Building, Suite 1300

224 Datura Street

West Palm Beach, Florida 33401

Colleen Farnsworth, Esquire

Department of Children and

Family Services

111 South Sapodilla Avenue, Suite 201

West Palm Beach, Florida 33401

Debby Sclafani

7581 West Lantana Road

Lake Worth, Florida 33467

Samuel C. Chavers, Acting Agency Clerk

Department of Children and

Family Services

Building 2, Room 204B

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

John S. Slye, General Counsel

Department of Children and

Family Services

Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

days from the date of this Recommended Order. Any exceptions to

this Recommended Order should be filed with the agency that will

issue the Final Order in this case.