06-001134 Department Of Children And Family Services vs. Homecoming Adoptions, Inc. Status: Closed Recommended Order on Wednesday, September 6, 2006.

Summary: Respondent having voluntarily submitted herself to licensure, must comply with all applicable Florida Statutes and Florida Administrative Code rules.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES , )

)

Petitioner , )

)

vs. ) Case No. 06 - 1134

)

HOMECOMING ADOPTIONS, INC. , )

)

Respondent . )

)

RECOMME NDED ORDER

On May 25, 2006, a formal administrative hearing in this

case was held in Orlando, Florida, before Jeff B. Clark,

Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: T. Shane DeBoard, Esquire

Department of Children

and Family Services

400 West Robinson Street, Suite S - 1114

Orlando, Florida 32801

For Respondent: James E. Taylor, Esquire

126 Eas t Jefferson Street

Orlando, Florida 32801

STATEMENT OF THE ISSUE S

The parties stipulated that a concise statement of the

nature of the controversy is: "Petitioner revoked Respondent's

license to operate as a child - placing agency un der 409.175, Fla.

Stat." The issues in the case are delineated with specificity

in the Administrative Complaint dated February 20, 2006.

Petitioner alleges that Respondent's license is revoked for the

following reasons:

1. Failure to properly close th e agency

as required by F.A.C. 65C - 15.035.

2. Repeated failure to provide the

Department with the agency's 2004 financial

audit as required by F.A.C. 65C - 15.010 and

failure to provide the Department with the

agency's 2005 financial audit;

3. Multip le code violations documented on

February 10, 2005 in the Child Placing

Agency Inspection Sheet attached hereto and

incorporated herein by reference;

4. Multiple code violations documented on

September 14, 2005 in the Child Placing

Agency Inspection sh eet attached hereto and

incorporated herein by reference;

5. Multiple code violations documented on

October 18, 2005 in the Child Placing Agency

Inspection Sheet attached hereto and

incorporated herein by reference;

6. Multiple code violations doc umented on

January 19, 2006 in the Child Placing Agency

Inspection Sheet attached hereto and

incorporated herein by reference;

7. Multiple code violations documented on

February 17, 2006 in the Child Placing

Agency Inspection Sheet attached hereto and

incorporated herein by reference;

8. Entering into contracts with a

prospective adoptive parent for the

placement and adoption of a child, taking

the prospective adoptive parent's money and

not placing a child in their home for

adoption, and, thereafte r failing to return

money paid for fees, costs and expenses

advanced by the prospective adoptive parent

which were refundable. In short, the agency

charged the prospective adoptive parent for

fees, costs and expenses, and, when the

agency failed to delive r on the contract it

did not return the advanced money required

to be refunded. This is in violation of

sections 63.097 and/or 409.175, Florida

Statutes, and F.A.C. 65C - 15.010;

9. Entering into contracts with a

prospective adoptive parent for the

plac ement and adoption of a child, taking

the prospective adoptive parent's money,

placing a child in their home for adoption,

and, thereafter failing to return money

advanced to pay for fees, costs and expenses

associated with the adoption which were not

expe nded. In short, the agency charged the

prospective adoptive parent for fees, costs

and expenses, and, when the funds were not

actually needed to cover the allowable fees,

costs or expenses the agency failed return

the advanced money. This is in violation of

sections 63.097 and/or 409.175, Florida

Statutes, and F.A.C. 65C - 15.010.

In its response to the Administrative Complaint,

Respondent, Homecoming Adoptions, Inc., has denied each of the

nine listed reasons for Petitioner's decision to revoke its

licens e .

PRELIMINARY STATEMENT

On February 15, 2006, Homecoming Adoptions, Inc.

(Respondent) , notified the Department of Children and Family

Services (Petitioner) that it no longer wished to maintain a

then existing child - placing agency license and that it wishe d to

withdraw its application for license renewal. The existing

license was to expire on March 2, 2006. On February 20, 2006,

Petitioner, filed an Administrative Complaint against

Respondent, accepting Respondent's application withdrawal,

alleging that i t failed to close as required by law and that it

failed to transfer services with its existing clients as

required by law. It further warned that operation after

March 2, 2006, the date the current license would expire, would

constitute operation of a ch ild placement agency without a

license.

Respondent filed a request for formal hearing. The request

was received by the Division of Administrative Hearings on

March 31, 2006. An Initial Order was sent to both parties on

March 31, 2006. At the request of the parties, the matter was

scheduled for final hearing on May 25, 2006, in Orlando,

Florida.

The final hearing was conducted as scheduled on May 25,

2006. Petitioner called two witnesses : Helga Mejia, licensing

specialist, and Kurt E. Alexander, Esq uir e , one of the co - owners

of Respondent. Petitioner offered nine exhibits that were

received into evidence and marked Petitioner's Exhibits 1

through 9.

Respondent called two witnesses : Kurt E. Alexander,

Esq uire, and Kendall B. Rigdon, Esquire, the other co - owner of

Respondent. Respondent offered one exhibit that was received

into evidence and marked Respondent's Exhibit 1 .

The parties requested and were given 30 days from the date

of the filing of the transcript of the final hearing with the

Clerk of the Division of Administrative Hearings to file

proposed recommended orders. A T ranscript of the final hearing

was filed on June 16, 2006. On July 14, 2006, the parties

jointly stipulated to an extension of time for filing proposed

recommended orders. The time for filing was extended to

August 15, 2006. Both parties filed Proposed Recommended Orders

that have been considered in the preparation of this Recommended

Order.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the

final hea ring, the following findings of fact are made:

1. Respondent is a Florida non - profit corporation, doing

business in Orlando, Florida. It is co - owned by Kurt Alexander

and Kendall Rigdon; both are officers of the corporation and are

attorneys licensed to practice law in the S tate of Florida.

2. On March 2, 2005, Petitioner issued a Certificate of

License t o Respondent to operate a child - placing agency. The

license was to continue in force for one year from the date of

issue unless renewed, withdrawn or r evoked for cause.

3. On February 15, 2006, Kurt Alexander advised Petitioner

on behalf of Respondent that "we are withdrawing our application

for licensure renewal at this time."

4. During relevant times, to wit, March 2, 2005 , to

February 15, 2006, Resp ondent entered into contracts ( titled

"adoptive agency agreement" ) with individuals seeking to adopt

children wherein Respondent undertook to "assist the Adoptive

Parent in commencing and completing the adoption." The

contracts contemplate the Adoptive Pa rent traveling "to the

foreign country to complete the adoption process and accept

physical custody of the child." Evidence was offered that

Respondent assisted with adoptions which took place in Russia,

China, Guatemala, El Salvador, and other countries. In each

instance , the formality of the adoption was effected by

individuals or agencies located in the foreign country.

5. Although a licensed child - placing agency, Respondent

had never placed a child for adoption within or without the

State of Florida. Respondent became a licensed child - placing

agency in an abundance of caution in the event it had to

undertake a Florida adoption. Respondent never had physical

custody of any child on either a temporary or permanent basis.

6. On February 17, 2006, Kurt Alexander again advised

Petitioner that Respondent "does not wish to renew or retain its

license as a child - placing agency in Florida." He further

advised that

[I] n an abundance of caution and in

compliance with 65C - 15.035, Homecoming will

do the follow ing

1. Transfer all children to the Dept. or

another licensed child placement agency.

There are none.

2. Transfer responsibility for all

children in temporary placement, etc. There

are none.

3. Transfer services to all other

clients. Will do .

7. On or about February 17, 2006, all active and closed

files of Respondent, the licensed child - placing agency, were

transferred to the law firm of Rigdon, Alexander & Rigdon, LLP.

Thereafter, Kurt Alexander, in his capacity as an attorney with

that f irm, requested that Petitioner refrain from examining the

files that had previously been the property of Respondent, as

they were now law firm property and "confidential."

8. On September 14, 2005 ; October 18, 2005 ; January 19,

2006 ; and February 17, 200 6, Petitioner conducted annual and

complaint inspections of Respondent's files. Employee personnel

files lacked applications, references, local/FDLE/FBI criminal

background checks, degree verifications, and other required

information. Some adoption files lacked completed home studies,

character references, background studies, criminal background

checks , and abuse registry checks. In addition, a required

financial audit was not available. Respondent's e xecutive

d irector was terminated in August 2005; Pet itioner was not

notified of his termination.

9. No evidence was offered by Petitioner regarding the

allegations of paragraphs 8 and 9 of the Administrative

Complaint.

CONCLUSIONS OF LAW

10 . The Division of Administrative Hearings has

jurisdiction over th e parties to and subject matter of this

proceeding. § 120.57(1), Fla . Stat . (2005).

1 1 . The Legislature has vested Petitioner with the

re sponsibility of licensing child - placing agencies and the

authority to adopt and enforce rules to ensure compliance wi th

the rules governing such agencies. § 63.202 (1) through (3),

Fla . Stat . (2005).

1 2 . “All persons or agencies” engaged in the “placement or

adoption of children , ” as defined in Florida Administrative Code

Rule 65C - 15.001 (2) , are required to be licensed . Fla. Admin.

Code R . 65C - 15.002(1).

1 3 . Florida Administrative Code Rule 65C - 15.001(2 ) reads,

in pertinent part :

“Adoption process” includes the following:

Recruitment of prospective adoptive parents;

recruitment of individuals for the release

of a ch ild, including a child not yet born,

for the purpose of adoption as part of a

plan leading to the eventual placement of a

child for adoption; provision of medical

care or payment of maintenance costs and

expenses during pregnancy in consideration

for the r elease of a child for adoption;

assessment and preparation of families

before placement as part of a plan leading

to the eventual placement of a child for

adoption; and supervision of families, after

placement and prior to the final adoption,

has occurred.

1 4 . Subsections 63.0 3 2 (15) and (16), Florida Statutes

(2005) , read as follows:

(15) "To place" means the process of a

parent or legal guardian surrendering a

child for adoption and the prospective

adoptive parents receiving and adopting the

child, a nd includes all actions by any

person or adoption entity participating in

the process.

(16) "Placement" means the process of a

parent or legal guardian surrendering a

child for adoption and the prospective

adoptive parents receiving and adopting the

ch ild and all actions by any adoption entity

participating in placing the child.

1 5 . While the evidence clearly demonstrates that

Respondent did not take physical custody of any child for

placement , which is typical of a licensed child placing agency,

by s ubmitting itself for licensure, and through its actions and

involvement in the process of adoption, Respondent subjects

itself to Petitioner's legislatively - mandated supervision.

1 6 . Admittedly, Messrs. Alexander and Rigdon are members

of the Florida Bar and subject to regulation by the Florida

Supreme Court. Respondent is not a member of the Florida Bar;

by applying for and accepting licensure, it has submitted itself

to the scrutiny of Petitioner.

1 7 . The case cited by Respondent, National Adoption

Cou nseling Services and Richard Gitelman v. Department of Health

and Rehabilitative Services , 480 So. 2d 250 (Fla. 4 th DCA 1985),

was decided in part on a glaring procedural defect. As noted by

the Appellate Court, the Department of Health and Rehabilitative

Services based its injunctive action on a statute allowing it to

"enjoin and abate nuisances dangerous to the health of persons,

fish and livestock." Although the facts have limited

commonality with the instant case, the respondent in the

referenced case did not voluntarily subject itself to agency

jurisdiction by seeking and accepting licensure.

1 8 . Typically, issuance of a professional or occupational

license confers a vested property right in the person to whom

the license is issued. State ex rel. Es tep v. Richardson , 148

Fla. 48, 3 So . 2d. 512 (1941). However, Subsection

409.175(2)(f), Florida Statutes (2005), reads as follows:

"License" means "license" as defined in s.

120.52 (9). A license under this section

[[ L]icensure of family foster homes,

residential child - caring agencies, and

child - placing agencies] 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 recip ient. 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.

1 9 . As a result of S ubsection 409.175(2)(f), Florida

Statutes (2005), supra , Petitioner has the burden of proving by

substantial, competent evidence the allegations of the

administrative complaint. Mayes v. Department of Children and

Family Services , 801 So. 2d 980 (Fla. 1st DCA 2001).

20 . S ubs ection 409.175(9)(b)2 . , Florida Statutes (2005),

reads as follows:

Any of the following actions by a home or

agency or its personnel is a ground for

denial, suspension, or revocation of a

license:

* * *

2. A violation of the provisions of this

section or of licensing rules promul gated

pursuant to this section.

2 1 . Florida Administrative Code Rule 65C - 15.004 reads as

follows :

(1) Licensing staff of the department may

make scheduled or unannounced visits to a

lice nsed home, facility or agency at any

reasonable time to investigate and evaluate

compliance with the licensing requirements.

All agencies shall be inspected at least

annually.

(2) The department shall investigate

complaints to determine if the agency is

meeting the licensure requirements.

(3) The department shall advise the owner

and operator with authority over the

licensed agency that there is a licensing

complaint when initiating an investigation

and shall advise the agency of the results

of the i nvestigation when concluded.

(4) Whenever the department receives a

report questioning the certification status

or compliance of a child - placing agency with

requirements of the state adoption law or

alleging violations of this chapter by the

agency, th e department shall investigate the

allegation within 20 working days to

determine whether the complaint is

substantiated.

(5) The department shall notify the

complainant and the agency in writing of the

results of the complaint investigation

within 15 working days after the report of

the department’s investigation has been

finalized.

(6) The agency shall fully cooperate with

the department whenever such complaint

investigations are conducted.

2 2 . Florida Administrative Code Rule 65C - 15.010(3) read s

as follows:

Audit: The agency shall have its

financial records audited annually. A report

of this audit shall be available to the

department at the licensed location during

normal business hours.

2 3 . Respondent did not have an audit of its 2005 fis cal

year available for inspection by Petitioner as required by

Florida Administrative Code Rule 65C - 15.010(3) .

2 4 . Florida Administrative Code Rule 65C - 15.011(1) reads

as follows:

The agency shall provide written

notification within 30 days after

implem entation to the department of changes

in the agency’ director, statement of

purpose, services to be provided, clientele

to be served, intake procedures or admission

criteria.

2 5 . Respondent failed to advise Petitioner that its

e xecutive d irector had left Respondent's employ in violation of

Florida Administrative Code Rule 65C - 15.011(1) .

2 6 . Florida Administrative Code Rule 65C - 15.016 reads as

follows:

(1) The agency shall have available on

site the educational qualifications of

employees to verify tha t they meet the

standards set forth in Rule 65C - 15.017,

F.A.C.

(2) The agency shall have a personnel

file for each employee, available for review

by the department which shall include, but

is not limited to the following:

(a) The application for em ployment;

(b) Verification that the screening

requirements of Section 409.175, F.S., and

Chapter 10 - 20, F.A.C., have been completed

and met;

(c) Employee’s starting and termination

dates and reason for termination;

(d) Annual performance evalua tions and

any disciplinary actions taken;

(e) Copy of diploma or degree; and

(f) Training record and conferences

attended.

2 7 . Employee personnel files lacked applications,

references, local/FDLE/FBI criminal background checks, degree

verification s, and other required information in violation of

Florida Administrative Code Rule 65C - 15.016 .

2 8 . Florida Administrative Code Rule 65C - 15.028 reads as

follows:

(1) The agency shall make an evaluation

of the adoptive family before placement of a

child, which shall include at least one home

visit.

(2) The evaluation study shall be

summarized in a written report.

(3) The report shall be maintained by the

agency as a permanent record, and shall

include the following:

(a) The applicant’s motivat ion for

adoption;

( b) The strengths, weaknesses and

personal adjustment of each member of the

household;

(c) The attitudes and feelings of the

family, its extended family members, or

significant others towards adoptive

children;

(d) The attitud es of the applicants

toward the birth parents and the reasons

children may be in need of adoptive

placement;

(e) The applicant’s plan for discussing

adoption with the child;

(f) The applicant’s emotional stability

and maturity;

(g) The applican t’s ability to cope with

problems;

(h) The applicant’s capacity to give and

receive affection;

(i) The applicant’s child caring skills;

(j) The adjustment of birth children, and

previously adopted children, if appropriate;

(k) The applicant ’s ability to provide

financially for the child and other family

members;

(l) A medical assessment identifying any

medical problems which may limit the

applicant’s ability to parent a child to

adulthood;

(m) The applicant’s religious

orientation, i f any;

(n) The location and physical environment

of the home;

(o) The plan for child care if the

prospective adoptive parents both work

outside the home;

(p) A recommendation in regard to the

number, age, sex, characteristics, and

special needs of the children who can be

best served by the family;

(q) Evidence of screening of the

applicants by the Florida Protective

Services System Abuse Registry and law

enforcement clearance; and

(r) Any special characteristics or

limitations of the app licant’s regarding

children placed for adoption in their home.

2 9 . Some completed adoption files lacked completed home

studies, character references, background studies, criminal

background checks , and abuse registry checks in violation of

Florida Admini strative Code Rule 65C - 15.028 .

30 . Florida Administrative Code Rule 65C - 15.034 reads as

follows:

The agency shall keep records for each

adoptive family which shall contain:

(1) The applications;

(2) The adoptive assessment study;

(3) Medical information;

(4) Character references from a least

three sources;

(5) A summary of family contacts

following approval for adoption until the

child is placed;

(6) A copy of the information given to

the parent’s concerning the child or

children to be placed for adoption with

them;

(7) All legal documents pertaining to the

adoption; and

(8) Summary containing the placement

decision, pre - placement and post - placement

contacts with the family and the adoptive

child, including services provide d to

stabilize the placement and decisions

regarding finalization of the adoption.

3 1 . Florida Administrative Code Rule 65C - 15.035 reads as

follows:

If a child - placing agency ceases

operation, for any reason, it shall notify

the department in writing at least 30 days

prior to closing and shall provide the

following information to the department:

(1) Legal transfer of surrender and

releases of any children in its custody to

another licensed child - placing agency or to

the department;

(2) Appropri ate transfer of

responsibility for children in temporary

placement to another licensed child - placing

agency or to the department. Deposit all

open and closed records to the department or

another licensed child - placing agency.

(3) Appropriate transfer o r termination

of services to all other clients;

3 2 . Florida Administrative Code Rule 65C - 16.007(2) reads

as follows:

(2) Criminal background checks through

local, state and federal law enforcement

agencies will be conducted on all persons

age 18 or o lder residing in the prospective

adoptive home. For applicants who have been

foster parents or who have adopted in other

states, local and state checks must be

completed in the state of previous

residence. Should the background reveal

that the applicant h as been convicted of a

crime specified in Section 435.045(1)(a)1.,

F.S., the application must be rejected.

Juvenile delinquency checks through the

Florida Department of Law Enforcement must

be conducted on all household members twelve

through seventeen ye ars of age as a public

record search. If this check reveals a

Juvenile Justice record, this information

must be addressed in the home study and a

determination must be made regarding

possible impact on the adopted child.

3 3 . Petitioner has proved by com petent, substantial

evidence that Respondent violated each of the Fl orida

Administrative Co de Rules cited in paragraphs 21 , 23, 25, 27,

and 29 , supra . Respondent's failure to allow examination of its

records after the mid - February "transfer" to Rigdon, Al exa nder &

Rigdon, LLP, is a violation of Florida Administrative Code Rule

65C - 15.004(6). However, of greatest concern, is the fact that

Respondent has chosen to ignore the requirement of Florida

Administrative Code Rule 65C - 15.035(2) that it: "Deposit al l

open and closed records to the department or another licensed

child - placing agency." Obviously, Rigdon, Alexander & Rigdon,

LLP , is neither the department or a licensed child - placing

agency.

3 4 . Acknowledging that the administrative requirements for

ad option probably vary greatly from Guatemala to Russia, it

presents a weak argument for failing to adhere to the Florida

requirements found in Florida A dministrative Code Rules 65C -

15.028 and 65C - 15 .034. This information would appea r to be

important and he lpful in any adoption.

35. Petitioner did not offer any evidence regarding the

allegations of paragraphs 8 and 9 of the Administrative

Complai nt, and, therefore, failed to prove same.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that Petitioner enter a final order revok ing

the license of Respondent, Homecoming Adoptions, Inc., effective

February 20, 2006.

DONE AND ENTERED this 6 th day of September , 2006 , in

Tallahassee, Leon County, Florida.

S

JEFF B. CLARK

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 6 th day of September, 2006 .

COPIES FURNISHED :

James E. Taylor, Esquire

126 East Jefferson Street

Orlando, Florida 32801

T. Shane DeBoard, Esquire

Department of Children

and Family Services

400 West Robinson Street, Suite S - 1114

Orlando, Florida 32801

Gregory Venz, Agency Clerk

Department of Children

and Family Services

Building 2, Room 204B

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

John Copeland, General Counse l

Department of Children

a nd Family Services

Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

Luci D. Hadi, Secretary

Department of Children

and Family Services

Building 1, Room 202

1317 Winewood Boulevard

Tallahassee, Flo rida 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 iss ue the Final Order in this case.