00-004789 Dequinda Cook vs. Department Of Children And Family Services Status: Closed Recommended Order on Thursday, March 1, 2001.

Summary: Petitioner failed the preponderance of the evidence burden of establishing substitute care parent had sufficient income (including interest-bearing savings) to assure foster home stability.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEQUINDA COOK, )

)

Petitioner, )

)

vs. ) Case No. 00-4789

)

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings

by its designated Administrative Law Judge, Ella Jane P. Davis,

held a disputed-fact hearing in the above-styled case on

January 18, 2001, in Ocala, Florida.

APPEARANCES

For Petitioner: Dequinda Cook, pro se

9311 Spring Road

Ocala, Florida 34472

For Respondent: Nancy Peck

District 13, Assistant Legal Counsel

Department of Children and Family Services

1601 West Gulf Atlantic Highway

Wildwood, Florida 34785-8158

STATEMENT OF THE ISSUE

Whether Petitioner is entitled to a foster care license

upon satisfactory evidence of financial ability to provide care

for children placed in her home.

PRELIMINARY STATEMENT

By a letter dated September 25, 2000, the Department of

Children and Family Services (Department) advised Petitioner, a

first-time applicant, that her application for a foster home

license, pursuant to Section 409.175, Florida Statutes, was

denied due to her failure to meet the requirements of

Rule 65C-13.001(4)(d), Florida Administrative Code.

On or about November 11, 2000, Petitioner's request for a

disputed-fact hearing was referred to the Division of

Administrative Hearings.

The parties did not comply with the Order of Prehearing

Instructions issued December 19, 2000, so at the commencement of

the disputed-fact hearing on January 18, 2001, the undersigned

inquired as to the parameters of the issues to be tried. The

parties orally stipulated that the only issue to be tried was

whether or not Petitioner could demonstrate financial ability to

provide care for children placed in the home as stated in the

September 25, 2000, denial letter; 1 that Petitioner qualified in

all other respects; and that Petitioner need not prove-up any

further elements of eligibility by statute or rule. 2

Petitioner testified on her own behalf and had eight

exhibits admitted in evidence.

Respondent Department presented the oral testimony of Diana

Vazquez and Mary Mills, and had one exhibit admitted in

evidence.

No transcript was provided. Respondent filed its Proposed

Recommended Order on February 2, 2001, within the 15 days

stipulated.

Due to an error in the office of the undersigned, a post-

hearing order was not entered until February 6, 2001. Even so,

Petitioner has, to date, filed no proposed recommended order.

FINDINGS OF FACT

1. Petitioner took the required courses through the

Department and applied for a foster home license.

2. She passed all home visits with flying colors and was

recommended for licensure.

3. Her application contained a family financial statement

which reflected her monthly income as $660.00 and her estimated

monthly liabilities (expenditures) as $625.62.

4. The Department calculated Petitioner's residual income

as $34.38 by deducting her usual expenses from her usual income.

5. Because substitute care parents must have sufficient

income to assure the stability and security of their own family

without relying on foster care payments and must have sufficient

income to cover four to six weeks of a foster child's care

during anticipated lag time in receiving foster care payments,

Petitioner's application was denied.

6. The $660.00 Petitioner declared in her financial

statement is made up of $460.00 monthly social security income

plus $200.00 from unenumerated sources. Petitioner is not

employed outside the home.

7. Petitioner testified credibly that, as of the date of

hearing on January 18, 2001, she had nearly $15,000.00 saved in

her bank account, mostly as the proceeds of the "Black Farmers

Settlement" of a class action lawsuit.

8. In support of her testimony, Petitioner also had

admitted in evidence an undated letter addressed to her, showing

transmittal to her of a check for $50,000.00 "cash award," in

the cases of Pigford et al. v. Glickman , and Brewington et al.

v. Glickman .

9. Petitioner also had admitted in evidence an AmSouth

"Official Check," dated January 3, 2001, made out to her in the

amount of $14,928.88. This appears to be a certified cashier's

check she asked for in order to demonstrate her bank balance for

the hearing.

10. Petitioner further testified that she had made a

deposit to her checking account. She had admitted in evidence

an AmSouth customer receipt (deposit slip) showing an AmSouth

account balance of $59.85 to which a $3,000.00 check had been

deposited on November 1, 2000. The numbers on this item did not

match those on her check cashing card or her voided check, which

items were also admitted in evidence. However, there is no

reason to believe the numbers would match, considering modern

automatic banking safeguards. What, precisely, this receipt was

intended to demonstrate is unclear.

11. Much of Petitioner's $50,000.00 settlement monies went

to pay for hip replacement surgery, and she is fully recovered.

12. Prior to making her application and while she was

still in training, that is, prior to November 29, 1999, the

Department allowed Petitioner to take in some foster children on

an emergency basis. The understanding at that time was that

Petitioner would bear all the children's expenses with no

reimbursement by any government program except for their medical

aid. During this period, Petitioner frequently complained that

she had no money to put gas in her car to bring a certain child

or children to the Department office for their medical care or

to see their case workers. As near as can be determined from

this record, these events occurred in the fall of 1999 or early

in the year 2000, but without information as to when Petitioner

received her lump-sum class action settlement, it is impossible

to assess whether these events occurred before or after

Petitioner received her class action settlement.

13. Petitioner's Lease for Voucher Tenancy, Section 8,

Tenant-Based Assistance Rental Voucher Program, signed April 7,

2000, stated that she lives in the home with four other

individuals: Irene Turner, Lionel Cook, Iman McCullough, and

Christina Honeycutt. However, a June 26, 2000, Home Study

Report concluded, based on visits in April and May 2000, that

Petitioner lives alone. Iman McCullough, a foster child, lived

in Petitioner's home for a short period in 1999, but by

September 2000, she was living in another foster home.

Christina Honeycutt, also a foster child, lived in Petitioner's

home only briefly in 1999. Another individual listed on the

April 7, 2000, lease as a resident of the home is Lionel Cook,

one of Petitioner's sons. However, the June 26, 2000, Home

Study Report stated that Petitioner did not know her sons'

addresses or phone numbers and that she had stated she has no

contact with them. The Petitioner's Section 8 rent is $30.00

per month, calculated on five residents in the home. It is

conceivable that a change in the number of people in the home

may alter the amount paid for rent.

14. There was no evidence presented concerning how much

per child Petitioner would receive if her application were

granted. Petitioner testified that she hoped to have four

children assigned to her. The June 26, 2000, Home Study Report

recommended that she receive five children.

CONCLUSIONS OF LAW

15. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this

proceeding, pursuant to Section 120.57(1), Florida Statutes.

16. Section 409.175(1)(f), Florida Statutes, provides:

"License" means "license" as defined in

Section 120.52(9). A license under this

section is issued to a family foster home or

other facility and is not a professional

license of any individual. Receipt of a

license under this section shall not create

a property right in the recipient. A

license under this act is a public trust and

a privilege, and is not an entitlement.

This privilege must guide the finder of fact

or trier of law at any administrative

proceeding or court action initiated by the

department.

17. Section 409.17 5(8)(a), Florida Statutes, provides:

The department may deny, suspend, or revoke

a license.

18. Rule 65C-13.001(5), Florida Administrative Code,

provides:

Substitute care parents must have sufficient

income to assure their stability and the

security of their own family without relying

on board payments. The substitute family

must have sufficient income to absorb four

to six weeks of a foster child's care until

a board payment is received.

19. This is a de novo proceeding in which Petitioner bears

the duty to go forward and prove her entitlement to licensure by

a preponderance of the evidence. Florida Department of

Transportation v. J.W.C. Company, Inc. , 396 So. 2d 778 (Fla. 1st

DCA 1981), and McDonald v. Banking and Finance , 346 So. 2d 569

(Fla. 1st DCA 1977).

20. Respondent asserts that because Rule 65C-13.001(5),

Florida Administrative Code, speaks to "income" instead of "lump

sum savings," Petitioner should not prevail. No legal precedent

was offered whereby the rule can be read so narrowly. The

purpose of the rule is to ensure the emotional and financial

equilibrium of the foster parent's own family and of the

assigned foster children, and savings which draw interest should

not be excluded from consideration.

21. However, on the same theory, there should have been

some evidence to show how slowly or how fast Petitioner's

$50,000.00 settlement dwindled to $14,928.88, but there is none.

22. Likewise, there is insufficient evidence upon which

one can calculate what would render Petitioner's proposed home

financially stable, such as: how many children will be housed

with Petitioner; how much will it cost Petitioner to care for

them for four to six weeks while awaiting board payments; and

how much would Petitioner be out-of-pocket if the governmental

stipend is not paid in that length of time? Here, absolutely no

evidence permits such calculations to even begin. 3

23. Also, the anecdotal evidence concerning Petitioner's

problems with supporting children who were temporarily entrusted

to her care and the discrepancies between the lease and the home

study information undermines her credibility on the material

issues.

24. Accordingly, Petitioner has not proven her eligibility

by a preponderance of the evidence.

RECOMMENDATION

Based upon the findin gs of fact and conclusions of law, it

is

RECOMMENDED:

That the Department of Children and Family Services enter a

Final Order denying Petitioner's application for a foster home

license at this time and without prejudice to reapply.

DONE AND ENTERED this 1st day of March, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

ELLA JANE P. DAVIS

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 1st day of March , 2001.

ENDNOTES

1/ The only reason for denial given in the September 25, 2000

letter was:

Florida Administrative Code Chapter

65C-13.001(4)(d), states that substitute

care parents must have sufficient income to

assure their stability and security of their

own family without [sic] relying on board

payments. The substitute family must have

sufficient income to absorb four to six

weeks of a foster child's care until board

payment is received. Your income after

liabilities of $34.38 does not appear

sufficient to absorb the financial impact of

children placed in the home. Therefore,

your application for licensure is being

denied.

2/ Only after Petitioner had presented her case-in-chief, did

Respondent, in its case-in-chief, offer testimony of a hearsay

nature concerning Petitioner's alleged use of drugs. This

information was purportedly discovered after the September 25,

2000, letter. The denial letter was never amended to include

such a reason. The issue was not raised when the undersigned

asked for a stipulation as to the issues at the commencement of

hearing. Due to Respondent's stipulation at the commencement of

hearing to exclude all issues not referenced in the denial

letter, Respondent was not permitted to present evidence

concerning Petitioner's alleged use of drugs.

3/ For instance, $15,000.00 does not go very far if Petitioner

has to expend $700.00 per child per month for four children and

reimbursement of $700.00 per child per month is in arrears by

six weeks. Petitioner would be out-of-pocket $4,200.00 at any

given time.

COPIES FURNISHED:

Dequinda Cook

9311 Spring Road

Ocala, Florida 34472

Nancy Peck, Esquire

District 13, Legal Council

Department of Children and

Family Services

1601 West Gulf Atlantic Highway

Wildwood, Florida 34785

Virginia A. Daire, Agency Clerk

Department of Children and Family Services

1317 Winewood Boulevard

Building 2, Room 204B

Tallahassee, Florida 32399-0700

Josie Tomayo, General Counsel

Department of Children and Family Services

1317 Winewood Boulevard

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.