17-001534 Nancy Viau vs. Department Of Children And Families Status: Closed Recommended Order on Friday, July 7, 2017.

Summary: The petition for hearing was filed with the Department nine days late, and therefore dismissal is required.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NANCY VIAU,

Petitioner,

vs. Case No. 17 - 1534

DEPARTMENT OF CHILDREN AND

FAMILIES,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, a final hea ring was held May 1 7 , 2017,

in Tallahassee, Florida, before Yolonda Y. Green, a duly -

designated Administrative Law Judge of the Division of

Administrative Hearings (ÐDivisionÑ).

APPEARANCES

For Petitioner: Jonatho n Howard Gl ug over, Esquire

Glugover Law & Mediation

Post Office Box 2613

Daytona Beach, Florida 32115

For Respondent: Brian Christopher Meola, Esquire

Department of Children and Families

400 W est Robinson Street , Suite S - 1129

Tallahassee, Florida 32801

STATEMENT OF THE ISSUES

The issues are:

1) Whether children who were adopted through a private

adoption agency are entitled to tuition waiver; and

2) Whether Petitioner timel y requested a final hearing.

PRELIMINARY STATEMENT

In a letter dated December 21, 2016, the Department of

Children and Families (ÐRespondentÑ or ÐDepartmentÑ) notified

Petitioner that her request for a tuition waiver for her adopted

children was denied.

A s a result of the DepartmentÓs action, PetitionerÓs four

adopted children were deemed ineligible to receive adoption

assistance, i.e., tuition waiver. The basis for the denial of

the tuition waiver was that the children were not Ð a dopted from

the Departme nt.Ñ Petitioner requested a final administrative

hearing on January 23, 2017. Whether that request was timely is

an issue for determination in this proceeding.

On March 13, 2017, this matter was referred to the Division

and it was assigned to the under signed to conduct a final

hearing. On March 21, 2017, the undersigned issued a Notice of

Hearing scheduling the final hearing for May 17, 2017.

On May 17, 2017, the hearing commenced as scheduled.

Pursuant to the Order of Pre - hearing Instructions, on May 9,

2017, the parties filed a Pre - hearing Stipulation wherein they

stipulated to certain facts, which, to the extent relevant, have

been incorporated in the Findings of Fact below.

Petitioner testified on her own behalf and offered no other

witnesses. Petitioner offered no exhibits.

Respondent offered the testimony of two wi tnesses:

Jennifer Peterson, adoptions m anager, Community Based Care of

Centra l Florida; and Vanessa Snoddy, operations management

c onsultant, Department of Children and Families. Respondent

offered Exhibits R - 1 through R - 4, which were admitted.

The proceeding was recorded by a court reporter but the

parties did not order a transcript of the final hearing. At the

end of the final hearing, the parties stipulated that their

proposed recommended orders would be filed within 20 days of the

final hearing. O n June 6, 2017, t he parties timely submitted

Proposed Recommended Orders which have been considered in

preparation of this Recommended Order.

Except as otherwise indicated, all refer ences to Florida

Statutes or rules of the Florida Administra tive Code refer to

the 2016 editions .

FINDINGS OF FACT

Based upon the stipulations of the parties and the evidence

presented at hearing, the following relevant Findings of Fact

are made.

1. Pet itioner adopted four children (Ðthe childrenÑ), who

are siblings, after the biological parentÓs parental rights were

terminated. The parental rights were terminated on June 27,

2016. Petitioner seeks a college tuition waiver for the

children.

2. The D epartment is the state agency responsible for

reviewing and approving requests for adoption assistance.

Community Based Care of Central Florida (ÐCBCÑ) is the licensed

child - placing agency that has been designated as the agency to

facilitate such requests .

3. The children were removed from the custody of their

biological mother (L.H.) due to her inability to provide food,

clothing, medical care , and other ma terial needs for the

children during a shelter hearing in 2014. T he children were

temporarily plac ed in two separate homes . On January 13, 2014 ,

three of the children were placed with Petitioner. On June 14,

2014 , one child was placed with a different caretaker.

4. Petitioner desired to adopt the children so they could

remain together.

5. Jennif er Peterson, adoption m anager with CBC, testified

at hearing that CBC reviews requests for adoption subsidies,

conducts home studies, and ensures compliance with adoption

procedures.

6. Ms. Peterson explained the process for adoption from

the Department if two families are interested in adopting the

same children. An adoption review committee (Ðadoption

committeeÑ) determines whether a person is appropriate to adopt

children.

7. An adoption committee conven ed to determine whether

Petitioner wou ld be eligible to adopt the children. At the

time, the DepartmentÓs Petition for Termination of Parental

Rights was pending.

8 . Due to PetitionerÓs desire that the children re main

together, she retained Florida Home Study LLC (ÐFlorida Home

StudyÑ) to assist with the adoption process. Florida Home Study

is a private , Florida - licensed , child - placing agency and holds

the same license as CBC.

9. Florida Home S tudy file d a Motion to Intervene in

Seminole County, Circuit Court, Seventh Judicial Circuit , Case

N umber 13 - DP - 0123 ( dependency case) on PetitionerÓs behalf.

10. The c ourt granted the intervention on November 3,

2015. The judge entered an o rder which states in pertinent

part:

2. That jurisdiction will be maintained by

this Court and the Departmen t of Children

and Families will abate the current

Termination of Parental Rights while the

private termination of parental rights and

adoption case is completed in family court.

Abatement of the petitio n to terminate

parental rights b efore the adoption

co mmittee made a final determination.

3. That Florida [Home Study] will assume

responsibility of the adoption case.

4. That Fl orida [Home Study] will file a

r eport with all pa rties and the Court every

90 day s until the completion of the case.

11 . A hom e study was completed by Florida Home Study on

March 6, 2016.

12 . Florida Home Study filed a Petition to Terminate the

Parent's Parental Rights, which was granted on June 28, 2016 .

13 . The o rder terminat ing parental rights in pertinent

part states:

3. Under section §39.811(4), Florida

Statutes, the Children [N.W., A.H., K.H.,

and A.W.] are permanently committed to

Florida Home Study LLC for the purposes of

subsequent adoption.

4. Under section §39.811(2), Florida

Statutes, the Children [N.W., A.H., K.H.,

and A.W. ] are placed in the temporary legal

custody of Florida Home Study LLC, under the

protective supervision of the State for the

purposes of subsequent adoption.

14 . The adoption took place on or about December 16, 2016 .

15 . Adoption assista nce is available to prospective

adoptive parents and adopted children to provide financial

assistance and services including a college tuition waiver . In

September 2016, Petitioner submitted an application for adoption

assistance . The children were class ified as Ðspecial needsÑ as

they were adopted as a sibling group and as a result of that

classification, were eligible for adoption assistance . 1/

16. Ms. Peterson reviewed the adoption assistance request

for Petitioner. She reviewed the case history an d actions of

the case manager.

17. Respo ndent approved the request and granted Petitioner

a maintenance subsidy until the children turn 18, an attorney

fee credit, and Medicaid until age 18.

18 . While Respondent granted a portion of PetitionerÓs

requ est for assistance, it denied the request for tuition

waiver. The Department issued a formal notice of its decision

to deny (ÐNoticeÑ) on December 21, 2016 , and served it on

Pe titioner by Certified U.S. Mail .

19 . Respondent provided notice to Petitione r of the

procedural requirements to challenge the agency action .

20 . The Notice stated:

RIGHT TO ADMINISTRATIVE PROCEEDING

IF YOU BELIEVE THIS DECISION IS IN ERROR,

YOU MAY REQUEST AN ADMINISTRATIVE HEARING IN

ACCORDANCE WITH THE BELOW "NOTIFICATION OF

R IGHTS UNDER CHAPTER 120, FLORIDA STATUTES"

NOTIFICATION OF RIGHTS UNDER CHAPTER 120,

FLORIDA STATUTES

IF YOU BELIEVE THE DEPARTMENT'S DECISION IS

IN ERROR, YOU MAY REQUEST AN ADMINISTRATIVE

HEARING UNDER SECTIONS 120.569 AND 120.57,

FLORIDA STATUTES, TO CONTEST THE DECISION.

YOUR REQUEST FOR AN ADMINISTRATIVE HEARING

MUST BE REC EIVED BY THE DEPARTMENT BY

5:00 P.M., NO LATER THAN 21 CALENDAR DAYS

AFTER YOU RECEIVED NOTICE OF THE

DEPARTMENT'S DECISION.

You must submit your request for an

administrative h earing to the Department at

the following addresses:

Brian Meola, Assistant Regional Counsel

Department of Children & Families

400 W. Robinson Street, 1129

Orlando, FL 32801

IF YOUR REQUEST FOR AN ADMINISTRATIVE

HEARING IS NOT RECEIVED BY THE DEPARTME NT BY

THE ABOVE DEADLINE, YOU WILL HAVE WAIVED

YOUR RIGHTS TO A HEARING AND THE

DEPARTMENT'S PROPOSED ACTION WILL BE FINAL.

21 . Petitioner received the Notice on December 24, 2016.

Twenty - one days from the date of receipt of the Notice was

January 16, 2 017. Petitioner submitted a written request for a

final hearing by email through her attorney , on January 23, 2017 .

The letter indicated in the first sentence, ÐPlease be advised

that this office has been retained to appeal the above decision

[Denial of Request for Tuition Waiver] rendered on December 21,

2016.Ñ The record contains no additional evidence regarding a

written notice of appearance related to denial of the tuition

waiver .

CONCLUSIONS OF LAW

22 . The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

case pursuant to sections 120.569, 120.57(1) , and 435.07,

Florida Statutes (2016).

Eligibility for Tuition Waiver

23 . Petitioner seeks a tuition waiver for the c hildren

based on their classif ication as special needs children .

24 . The rule that addresses eligibility for a tuition

waiver, Florida Administrative Code Rule 65C - 16.012(6) ,

underwent modifications that took effect on July 7 , 2016. It

now provides:

(6) Tuition Waiver. Children w ho were in

the custody of the Department and who were

adopted from the Department after May 5,

1997, are eligible for an exemption of

undergraduate college tuition fees at

Florida universities or community colleges

as stated in section 1009.25, F.S.

2 5 . Whether the c hildren were Ðadopted from the

DepartmentÑ is a critical issue in this proceeding.

26 . Rule 65C - 16.001(3) defines Ðadopted from the

departmentÑ and provides:

(3) ÐAdopted from the DepartmentÑ means a

child permanently committed to the custo dy

of the Department for the purpose of

adoption and has been adopted by parents who

have an approved home study by the

Department.

27 . Petitioner seeks a tuition waiver for the c hildren.

Because she is seeking affirmative relief, Petitioner has t he

bur den of demonstrating the c hildrenÓs entitlement to a tuition

waiver by a preponderance of the evidence. See Dep't of Ba nking

& Fin. v. Osborne Stern and Co. , 670 So. 2d 932, 934 (Fla. 1996)

(The general rule is that a party asserting the affirmative of

an issue has the burden of presenting evidence as to that

issue.); see also § 120.57(1)(j), Fla. Stat.

28 . Petitioner did not introduce any ev idence to demonstrate

that the c hildren were adopted from the Department.

29 . To prove the children are entitl ed to a tuition

waiver, Petitioner must demonstrate by a preponder ance of the

evidence that the children were : 1) in the custody of the

Department; and 2) adopted from the Department.

30 . The o rder terminating parental rights clearly states

that the c h ildren were permanently committed to Florida Home

Study for the purposes of subsequent adoption. The o rder

further indicated that the Department only maintained protective

supervision until the adoption. Thus , the c hildren were not in

the custody of the Department, but rather they were in the

permanen t custody of Florida Home Study for purposes of

adoption. Petitioner did not meet the first requirement to

prove entitlement to a tuition waiver.

31 . Similarly, the c hildren were not adopted from the

D epart ment. To demonstrate the c hildren were adopted from the

Department , Petitioner must present evidence that: 1) the

c hildren were permanently committed to the custody of the

Department fo r purposes of adoption; and 2) the c hildren have

been adopted by pare nts who have an approved home study by the

Department.

32 . For the reasons discussed in paragraph 28 above,

Petitioner did not dem onstrate that the c hildren were

permanently committed to the Department for purposes of the

adoption . Petitioner also did no t present evidence to prove by

a preponderance of the evidence that she had an approved home

study by the Department. Instead, Petitioner had the home study

completed by Florida Home Study. Thus, Petitioner failed to

demonstrate the children were adopted from the Department.

33. For the reasons set forth above, Petitioner did not

meet her burden to demonstrate that the children ar e entitled to

a tuition waiver . Petitioner did offer persuasive evidence that

the children were in the custody of the Depar tment (at the time

of adoption) and adopted from the Department.

34 . Petitioner argues that the version of rule 65C - 16.012

in effect at the time of PetitionerÓs intervention in the

dependency case should apply here. 2/ However, the unde rsigned is

not persuaded by PetitionerÓs argument.

35 . Because a final order has not yet been issued for

PetitionerÓs request for a tuition waiver , Petitioner's request

is governed by current law . See Ag. for Health Care Admin. v.

Mt. Sinai Med. Ctr. , 690 So. 2d 689, 6 91 (Fla. 1st DCA

1997)(agency must apply law in effect at the time it makes its

final decision).

36 . Thus , Petitioner did not prove the c hildren are

entitled to a tuition waiver. 3 /

Timeliness of Request for Final Hearing

37 . Under section 120.569(1 ), "[u]nless waived, a copy of

the [proposed agency action] shall be delivered or mailed to

each party or the party's attorney of reco rd at the address of

record."

38. Unless otherwise provided by law, persons seeking a

hearing regarding an agency decisio n shall file a petition for

hearing with the agency within 21 days of receipt of the

agencyÓs written notice. See Fla. Admin. Code R. 28 - 106.111(2).

Any person who fails to file a written request for a hearing

within 21 days waives the right to request a hearing on such

matters. See Fla. Admin. Code R. 28 - 106.111(4). A request for

hearing that has been untimely filed shall be dismissed. See

§ 120.569(2)(c), Fla. Stat.

39 . Petitioner asserts that her attorney represented her

before the Notice was sent to Petitioner and the representation

w as acknowledged by attorney for Respondent. However, t he

request for hearing was the only evidence in this proceeding

that demonstrates a written notice of appearance establishing

PetitionerÓs attorney as the attorney of record and was not

filed until January 23, 2017 . Petitioner did not demonstrate

that her attorney was the attorney of record at the time the

tuition waiver was denied , and , therefore, Respondent was not

required to serve the attorne y with the N otice .

40. Respondent failed to timely request a hearing to

dispute the denial of tuition waiver by filing her request nine

days late . Therefore, pursuant to section 120.569(2)(c),

RespondentÓs petition for hearing must be dismissed. See e.g.,

Cann v. DepÓt of Child. & Fam. Servs. , 813 So. 2d 237 (Fla. 2d

DCA 2002)(request for administrative hearing untimely filed

where request filed with Department one day late); and Whiting

v. Fla. DepÓt of Law Enf. , 849 So. 2d 1149 (Fla. 5th DCA

2003)(dismissal of employeeÓs administrative appeal from notice

of final agency action upheld where appeal was filed one day

late).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Department of Children and

Families enter a f inal o rder dismissing PetitionerÓs request for

an administrative hearing as untimely filed .

DONE AND ENTERED this 7th day of July , 2017 , in

Tallahassee, Leon County, Florida.

S

YOLONDA Y. GREEN

Administrative Law Judge

Division of Administrative Heari ngs

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 7th day of July , 2017 .

ENDNOTE S

1/ Sectio n 409.166 provides in pertinent part :

(2) DEFINITIONS. Ï As used in this section,

the term:

(a) ÐSpecial needs childÑ means:

* * *

e. A member of a sibling group of any age,

provided two or more members of a sibling

group remain together for purposes of

adoption ; . . . .

2/ R ule 65C - 16. 012 (7) , regarding t u ition w aiver states,

Ð C hildren who were in the custody of the department and who were

adopted after May 5, 1997 are eligible for an exemption of

undergraduate college tuition fees at Florida universities or

community colleges as stated in Section 1009 .25, F.S. Ñ

3 / The undersigned is aware that adhering to the plain language

of rule 65C - 16.012 mandates a result not favored by Petitioner

and may be contrary to legislative intent to make adoption

assistance available to families who adopt a child in t he

StateÓs foster care system. However, unless or until a

promulgated rule is repealed or invalidated in a rule challenge,

the Department is required to enforce its own rules. See , e.g. ,

Marrero v. DepÓt of ProfÓ l Reg . , 622 So. 2d 1109, 1112 (Fla. 1st

DC A 1993)("the [agency] is bound to comply with its own

rules until they have been repealed or otherwise invalidated

. . . .").

COPIES FURNISHED:

Jonathon Howard Glugover, Esquire

Glugover Law & Mediation

Post Office Box 2613

Daytona Beach, Flor ida 32115

(eServed)

Brian Christopher Meola, Esquire

Department of Children and Families

Suite S - 1129

400 West Robinson Street

Orlando, Florida 32801

(eServed)

Lisa M. Eilertsen, Agency Clerk

Department of Children and Families

Building 2, Room 204

131 7 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

(eServed)

Rebecca Kapusta, General Counsel

Department of Children and Families

Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

(eServed)

Mike Carroll, Secretary

Department of Children and Families

Building 1, Room 202

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of thi s Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.