99-003442 Mr. And Mrs. Lawrence Dustin vs. Department Of Children And Family Services Status: Closed Recommended Order on Monday, January 10, 2000.

Summary: One instance of failing to cooperate with the Department of Children and Family Services is insufficient to warrant denying a foster home license.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LAWRENCE AND JOCELYN DUSTIN, )

)

Petitioners, )

)

vs. ) Case No. 99-3442

)

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Respondent. )

______________________________)

RECOMMENDED ORDER

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

on December 8, 1999, in Inverness, Florida, before Donald R.

Alexander, the assigned Administrative Law Judge of the Division

of Administrative Hearings.

APPEARANCES

For Petitioners: James F. Cummins, Esquire

103 West Dampier Street

Inverness, Florida 34450-4209

For Respondent: Ralph J. McMurphy, Esquire

Department of Children and

Family Services

1601 West Gulf Atlantic Highway

Wildwood, Florida 34785-8158

STATEMENT OF THE ISSUE

The issue is whether Petitioners' application for a foster

home license should be denied because of their demonstrated

inability or unwillingness to follow the requirements of an

agency regulation, as alleged in Respondent's letter dated

August 2, 1999.

PRELIMINARY STATEMENT

This matter began on August 2, 1999, when Respondent,

Department of Children and Family Services, issued a letter

advising Petitioners, Lawrence and Jocelyn Dustin, that their

application for a foster home license was being denied "due to

[their] demonstrated inability or unwillingness to follow the

requirements of [Rule] 65C-13.010, Florida Administrative Code."

Petitioners requested a formal hearing under Section 120.569,

Florida Statutes, to contest the proposed action.

The matter was referred by Respondent to the Division of

Administrative Hearings on August 11, 1999, with a request that

an Administrative Law Judge be assigned to conduct a formal

hearing. By Notice of Hearing dated September 3, 1999, a final

hearing was scheduled on October 12, 1999, in Inverness, Florida.

At Petitioners' request, the matter was continued to December 8,

1999, at the same location. On December 7, 1999, the case was

transferred from Administrative Law Judge Charles C. Adams to the

undersigned.

At the final hearing, Petitioner Jocelyn Dustin testified on

her own behalf, and Petitioners jointly presented the testimony

of Mary Terschak, a guardian ad litem for a child once under

Petitioners' care. Also, they offered Petitioners' Exhibit 1,

which was received in evidence. Respondent presented the

testimony of Ralph Hunter, a child protective supervisor; and

John Lewis, a family services counselor. Also, it offered

Respondent's Exhibits 1 and 2, which were received in evidence.

There is no transcript of the hearing. Respondent filed a

paper styled Respondent's Written Argument on December 27, 1999,

which has been considered by the undersigned in the preparation

of this Recommended Order. Nothing was filed by Petitioners.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of

fact are determined:

1. In this proceeding, which bears some resemblance to a

child custody dispute, Petitioners, Lawrence and Jocelyn Dustin,

seek the issuance of a foster home license from Respondent,

Department of Children and Family Services ( DCFS). In a letter

dated August 3, 1999, DCFS denied the application on the ground

that due to Petitioners' "actions and attitudes," which led to

the Circuit Court for Citrus County (the court) removing a child

from their custody, DCFS had "significant concerns about [their]

inability or unwillingness to be a team player" in contravention

of Rule 65C-13.010, Florida Administrative Code. Petitioners

denied the allegations and requested a formal hearing to contest

the proposed action.

2. Through circumstances unknown, Petitioners became

acquainted with C. A., the natural mother of T. H., a female born

on December 16, 1987. Because of various difficulties

experienced by the natural mother in caring for her daughter, and

as an alternative to foster care, the court entered an order on

June 12, 1995, allowing Petitioners to temporarily serve as

substitute care parents for T. H.

3. Because a reunification plan involving the child and

natural mother had not been implemented by late 1996, the matter

was referred by the court to a mediator to establish a new case

plan. A mediation conference was held on March 27, 1997, and a

written mediation agreement was formalized in handwritten form by

the natural mother's attorney at the conclusion of the

conference. The agreement was approved by the court on May 16,

1997.

4. Petitioners attended the conference and signed the

handwritten agreement, but they claimed that they left the

meeting before it was concluded and that certain matters agreed

upon were not incorporated into the agreement. This was

partially confirmed by T. H.'s guardian ad litem , who also

attended the conference.

5. The agreement approved by the court provided, among

other things, that "visitation between the [natural]

mother/stepfather and T. [H.] shall continue on a weekly basis

with the modification being that Ralph Hunter, the case worker

[from DCFS], be the supervising party." In other words, the

weekly visitation by the mother with her child could take place

at a variety of places, such as a McDonald's Restaurant

(McDonald's), the DCFS office, or a park, so long as Ralph Hunter

(Hunter) was present.

6. Although Petitioners contended that the parties orally

agreed at the mediation conference that such visits could only

take place in the local DCFS office, this condition was not

incorporated into the agreement which they signed. Further,

there is no evidence that Petitioners complained to the court

about this apparent omission in the agreement, or even if they

did, that it was added to the agreement.

7. On July 16, 1997, the natural mother sought permission

from Hunter to meet T. H. at a local McDonald's for visitation

purposes. Although this was an "extra" visit, apparently it was

to replace one which would be missed because Petitioners were

leaving on an out-of-state vacation within a couple of days.

Hunter agreed to this request, and he instructed Jocelyn Dustin

(Jocelyn) to bring T. H. to his office that day. After the child

arrived, Hunter carried her to McDonald's where her mother and

stepfather were waiting.

8. Jocelyn explained that because it was a rainy day with

thunder and lightning, and T. H. was extremely frightened under

those conditions, out of concern for the child she followed

Hunter and T. H. to McDonald's. At the same time, Jocelyn

believed that the visit violated the court's order regarding

visitation rights since she incorrectly interpreted it to mean

that visitations could only take place at the DCFS office.

9. For the above reasons, Jocelyn drove up beside Hunter's

car at McDonald's, opened the passenger door, and asked him if

they could all meet at the DCFS office to discuss why the

agreement was being violated. Jocelyn then pulled T. H. out of

Hunter's car, told him that she was returning to the DCFS office,

and left the premises. Thereafter, Jocelyn drove to her mother's

house in nearby Hernando, Florida, where she telephoned a DCFS

representative. After speaking with the representative, Jocelyn

brought the child to the DCFS office.

10. A DCFS witness established that despite the well-

meaning intentions of Jocelyn, her conduct that day called into

question her ability to work with DCFS and the natural parent in

achieving the court's goal of eventually reunifying the child and

mother.

11. Five days later, or on July 21, 1997, the natural

mother, through her attorney, filed with the court an Emergency

Motion to Remove Child from Foster [sic] Home. Among others, the

motion contained allegations that Petitioners "had continuously

interfered with the visitations between the child and her

mother," had "physically wrestled the child from Mr. Hunter's

hands and sped off in a motor vehicle with the child," and had

"become increasingly difficult to deal with." The motion asked

that the court enter an order "restraining and enjoining the

foster [sic] parents from removing the child from the

jurisdiction" and removing "the child from [Petitioners'] custody

and control pending further Order of this Court."

12. At the hearing in the instant case, a DCFS witness

conceded that the foregoing allegations were not wholly accurate,

and that Jocelyn had not "continuously interfered with the

visitations," had not "physically wrestled the child from Mr.

Hunter's hands," and had not "become increasingly difficult to

deal with." This is apparently due to the fact that the natural

mother's attorney, and not DCFS, drafted the motion.

13. After an ex parte hearing in which neither Jocelyn nor

the child's guardian ad litem were allowed to "give input," on

July 28, 1997, the court entered an Order Modifying Placement to

Foster [sic] Care in which it found a modification in the child's

placement to be in its best interest. T. H. was placed in the

temporary custody of DCFS, but Petitioners and the natural mother

were granted "supervised visitation" rights. Although the child

was later returned to the natural mother's custody, she has been

in foster status since June 1999, and a termination of parental

rights is now being sought by DCFS.

14. On an undisclosed date in 1999, Petitioners filed an

application for licensure as foster parents. They did so because

of their love of children and their desire to serve as foster

parents for older children whose parental rights had been

terminated.

15. Although the assertion has been made in this case that

Petitioners would not be suitable foster parents because of the

incident in 1997, for several years, Jocelyn has satisfactorily

served in the court system as a guardian ad litem for a number of

foster children. This demonstrates her ability to work with both

the court and DCFS in matters concerning foster children. In

addition, there is no evidence that she or her husband would pose

a threat to the safety or welfare of foster children. Except for

the one isolated incident which occurred some 30 months ago when

Jocelyn sincerely thought that she was acting in T. H.'s best

interests, there is no evidence that Petitioners are unwilling or

unable to be a "team player" with the DCFS in providing care to

foster children, or otherwise fulfill their foster care

responsibilities.

CONCLUSIONS OF LAW

16. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties hereto

pursuant to Sections 120.569 and 120.57, Florida Statutes (1999).

17. As the party seeking licensure, Petitioners bear the

burden of proving by a preponderance of the evidence that they

are entitled to the requested license. To gain a license,

Petitioners must counter the objection lodged in the agency's

denial letter, that is, that they are unable or unwilling to be a

"team player" within the meaning of an agency regulation. In

making this determination, Section 409.175(2)(f), Florida

Statutes (1999), requires that the factfinder be guided by the

principle that a foster home license is not a professional

license or an entitlement, but rather is a "public trust and a

privilege."

18. Section 409.175(4)(a), Florida Statutes (1999),

authorizes DCFS to "adopt and amend licensing rules for family

foster homes." Relying on that statute as the source of its

rulemaking authority, the agency has adopted Rule 65C-13.010,

Florida Administrative Code, a lengthy rule entitled "Substitute

Care Parents' Role as a Team Member." In a post-hearing filing,

and without correlating by argument or facts Petitioners' conduct

to any portions of the above rule, Respondent has simply cited

paragraphs (2)(a)-(e) and (4)(j) and (k) as being the specific

provisions within the rule which Petitioners allegedly violated

and which form the basis for the denial of the application.

Those provisons read as follows:

(2) Responsibilities of the Substitute Care

Parents to the Child's Family.

(a) The substitute care parents must present

a positive image of and demonstrate respect

for the child's own family and must agree to

maintain a working relationship with the

child's family members as indicated in the

performance agreement or permanent placement

plan.

(b) The substitute care parents must

participate in planning visits for the child

with his parents and family members.

(c) The substitute care parents must allow

children and their family members to

communicate by mail and by telephone in

accordance with the child's performance

agreement, or permanent placement plan.

(d) The substitute care parents are expected

to share as many parenting experiences as

possible with the child's own family, for

example, participating in school conferences

and activities, buying clothing, and

attending birthday parties.

(e) The substitute care parents must never

be openly critical of the child's biological

family to the child or to others. Negative

experiences and feelings should be shared

with the counselor in a private setting.

(4) Responsibilities of the Substitute Care

Parents to the Department.

(j) The substitute care parents must be able

to accept supervision by the department staff

and participate in and support case plans for

children in their homes. Specifically[,]

substitute care parents must be included in

the development of performance agreements or

permanent placement plans, and in the

carrying out of these plans.

(k) The substitute care parents are

accountable to the department for their work

with the child.

19. Applying the facts established at hearing to the above

provisions, it is clear that paragraphs (2)(c) and (d) have no

application to this case, while paragraph (2)(b) has marginal, if

any, application at all. Further, if the word "work" is

interpreted to mean "conduct," then paragraph (4)(k) is

applicable since it goes without saying that "substitute care

parents are accountable to the department for their work

[conduct] with the child." In this case, however, there was no

evidence from any witness to support this interpretation or to

tie any proven conduct to a specific provision within the rule.

Thus, it is concluded that Jocelyn's actions on July 16, 1997,

equated to a violation of paragraphs (2)(a) and (e) and (4)(j) by

her failure to present a positive image of, and demonstrate

respect for, the child's own family, to share negative feelings

about the child's biological family in a private setting, and to

accept supervision by the department staff.

20. Notwithstanding the foregoing violations, the

underlying event occurred some 30 months ago and is the single

blemish on Jocelyn's record. Otherwise, Jocelyn's record with

children is commendable, as evidenced by her service as a

guardian ad litem , which indicates her ability to work as a "team

player" in the court system. Except for the isolated incident,

Jocelyn provided commendable care for T. H. over a two-year

period, and her actions in July 1997 were taken in the mistaken

belief that she was acting in the best interests of the child.

There was no evidence that Petitioners would pose any sort of

threat to foster children.

21. In light of the foregoing considerations, denial of the

license is too harsh. This is not a case where multiple rule

violations occurred over a period of time, DCFS v. Albert and

Estoria Walker , Case No. 99-0225 (Recommended Order, August 18,

1999), where the child has been abused, DCFS v. Wanda T. and

H. Ronald Barker , Case No. 99-0011 (Recommended Order, July 19,

1999), or where minimum qualifications have not been maintained

by the applicant, Bingham v. DCFS , Case No. 98-5590 ( DCFS,

July 12, 1999). This being so, the application should be

approved.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of

law, it is

RECOMMENDED that the Department of Children and Family

Services enter a final order granting the application of

Petitioners for a foster home license.

DONE AND ENTERED this 10th day of January, 2000, in

Tallahassee, Leon County, Florida.

___________________________________

DONALD R. ALEXANDER

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 10th day of January, 2000.

COPIES FURNISHED:

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

James F. Cummins, Esquire

103 West Dampier Street

Inverness, Florida 34450-4209

Ralph J. McMurphy, Esquire

Department of Children

and Family Services

1601 West Gulf Atlantic Highway

Wildwood, Florida 34785-8158

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

enter a final order in this case.