98-002389 Juanita Pitchford vs. Department Of Children And Family Services Status: Closed Recommended Order on Tuesday, September 22, 1998.

Summary: Agency`s failure to provide adequate proof for denial of application dictates that foster parent application should be granted.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JUANITA PITCHFORD, )

)

Petitioner, )

)

vs. ) Case No. 98-2389

)

DEPARTMENT OF CHILDREN )

AND FAMILY SERVICES, )

)

Respondent. )

______________________________)

RECOMMENDED ORDER

Pursuant to notice, Don W. Davis, a duly designated

Administrative Law Judge of the Division of Administrative

Hearings, held a formal hearing in the above-styled case on

August 13, 1998, in Jacksonville, Florida. The following

appearances were entered:

APPEARANCES

For Petitioner: James C. Cumbie, Esquire

One Independent Drive, Suite 3204

Jacksonville, Florida 32202

For Respondent: Roger L. D. Williams, Esquire

Department of Children and

Family Services

Post Office Box 2417

Jacksonville, Florida 32231-0083

STATEMENT OF THE ISSUE

The issue for determination is whether Petitioner's foster

parent application for adoption of the minor child, S. J., should

be granted.

PRELIMINARY STATEMENT

By letter dated April 13, 1998, Respondent's representative

informed Petitioner that Petitioner's foster parent application

to adopt a foster child in Petitioner's care was denied.

Respondent subs equently requested a formal administrative

hearing and the matter was transferred to the Division of

Administrative Hearings to conduct a formal hearing pursuant to

Section 120.57(1), Florida Statutes.

At the hearing, Petitioner presented the testimony of 7

witnesses and 26 exhibits of which 20 were admitted into

evidence. Respondent presented testimony of 6 witnesses and 7

exhibits.

No transcript of the final hearing was provided.

Additionally the parties did not file proposed recommended orders

within the required time frames and none had been received at the

time of preparation of this Recommended Order.

FINDINGS OF FACT

1. S.J. was abandoned at birth. Moses and Juanita

Pitchford served as foster parents of the child from the age of

two days until March 30, 1998, when the child was over two years

old.

2. S.J. was observed by several of Respondent's employees

as not behaving like other children her age. She had a flat

effect, not laughing, playing or verbalizing as other children

who visited Respondent's offices did. Subsequent evaluations of

the child established that S.J. was developmentally delayed in

speech,

physical, and cognitive skills. S.J. was then referred to Easter

Seals for services to assist her in the speech, physical, and

cognitive skills areas.

3. The Pitchfords' care had never been criticized in any of

the Respondent's home evaluation forms completed by Gwen Tennant,

the home care counselor employed by Respondent. Only when

Juanita Pitchford applied to adopt S.J. did Tennant assert that

Juanita Pitchford was not providing adequate care for the child.

4. Tennant's concern was based on the fact that S.J. was

not receiving the maximum exposure to an Easter Seals program for

which she had qualified. The Pitchfords were never formally

informed of this or any other deficiency. The evidence

establishes that the Pitchfords presented S.J. at the program

four days per week out of the total five days for which she was

eligible.

5. Following Respondent's denial by letter dated April 13,

1998, of Petitioner's foster parent application for adoption,

Respondent has continued to place foster children, including

infants, in the Pitchford home.

6. The rights of the child's biological parents were

terminated by court order dated June 17, 1997, due to their

abandonment of the child. The court noted in its order that:

Testimony adduced revealed that the child can

and has formed a significant relationship

with the parental substitute as has been

established in her current foster care

placement. The foster parents are the only

parents she has ever known.

7. The court's order also stated:

[T]he child is currently being given

excellent care by foster parents who love and

care for [S.J.], and consider [S.J.] to be

their child.

8. On March 30, 1998, S.J. was removed to the home of Betty

Allen, another foster parent. Allen is not married, cares for

six other foster children under the age of six years, and works

at a full-time job outside the home. Consequently, S.J. is

delivered to day care on a regular basis for five days each week.

During four of those days, she is later taken to the Easter Seals

program by day care personnel for four and one-half hours. Allen

cares for the foster children in her home from approximately

5:30 p.m. until 8:30 p.m. in the evening. She drops the children

at day care before 8:00 a.m. each day. In contrast, Petitioner

is not employed outside the home, remains there throughout the

day, and is able to provide intense daily interaction with S.J.

CONCLUSIONS OF LAW

9. The Division of Administrative Hearings has jurisdiction

over the parties and the subject matter. Section 120.57(1),

Florida Statutes

10. Rule 65C-16.002(7)(a)1.-5., Florida Administrative

Code, promulgated by Respondent, states that the first adoption

placement of choice in situations like this present proceeding is

with the foster parents with whom the child is residing. The

rule sets forth five exceptions to such placement: (1) when the

child does not want to be adopted by the foster parents; (2) the

foster parents do not want to adopt the child; (3) the foster

parents are willing to adopt the child, but none of its siblings;

(4) the health status of the foster parents jeopardizes the

child's security from loss or separation; and (5) the foster

parents have withheld information that jeopardizes the permanency

of the child's placement with them.

11. When it is considered that S.J. is receiving no more

exposure to the Easter Seals program than she did when she was in

Petitioner's home, Respondent's argument, that S.J. was not

receiving maximum exposure to that program from Petitioner and

should not be adopted by Petitioner, is unpersuasive. Absent a

showing by Respondent that one of the five conditions set forth

in Rule 65C-16.002(7)(a)1.-5., Florida Administrative Code,

exists with regard to Petitioner, Petitioner's application should

be granted by Respondent and adoption placement with Petitioner

considered to be in the child's best interest as required by Rule

65C-16.002(8), Florida Administrative Code.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that a Final Order be entered approving the

application of Petitioner.

DONE AND ENTERED this 22nd day of September, 1998, in

Tallahassee, Leon County, Florida.

___________________________________

DON W. DAVIS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1 230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 22nd day of September , 1998.

COPIES FURNISHED:

Roger L. D. Williams, Esquire

Department of Children

and Family Services

Post Office Box 2417

Jacksonville, Florida 32231-0083

James C. Cumbie, Esquire

One Independent Drive, Suite 3204

Jacksonville, Florida 32202

Gregory D. Venz, Agency Clerk

Department of Children

and Family Services

Building 2, Room 204

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.