STATE OF MICHIGAN FAMILY INDEPENDENCE AGENCY

Transcription

1 STATE OF MICHIGAN FAMILY INDEPENDENCE AGENCY IN THE MATTER OF Docket No Lana Beaudry, Agency No. CF Petitioner v Agency: Family Independence Agency Office of Children and Adult Licensing, Respondent / Case Type: Sanction Revocation Issued and entered this day of May, 2004 by Marianne Udow, Director Family Independence Agency FINAL DECISION AND ORDER This matter began with the Respondent s decision to issue a November 17, 2003 Notice of Intent to Revoke (Notice) the Petitioner s license to operate a foster family home pursuant to the Child Care Organizations Act (Act), 1973 PA 116, as amended, MCL et seq. Properly noticed hearings were held by the Administrative Law Judge (ALJ) on February 24, 2004 and February 25, 2004 pursuant to an Order Scheduling Telephone Conference and Hearing issued on February 9, Carol Shuck, Department Analyst, appeared on behalf of the Respondent. The Petitioner was represented by Vicki Smith, another foster parent. The Respondent sought to revoke the Petitioner s license based upon the allegations in the Notice that the Petitioner violated the Act and administrative rules promulgated under the Act. First, the Respondent asserted that the Petitioner violated 2000 AACS, R (a), which provides:

2 Page 2 A foster parent shall carry out each of the following functions: (a) Cooperate with and assist the agency in the agency s implementation of the service plan for children and their families. The Respondent alleged Petitioner violated R (a) based on Petitioner s actions while caring for two foster children. The Respondent related that the Petitioner made attempts to adopt the two foster children and also filed an appeal of a proposed change in children s placement. Petitioner did not dispute these actions. The ALJ, however, found all of the Petitioner s acts were authorized by statute the adoption attempts by MCL and the placement appeal by MCL (1)(f). As a result, the ALJ determined that these acts did not constitute willful and substantial violations of R (a). The Respondent also alleged that the Petitioner violated R (a) when she failed to give up the foster children upon request. The ALJ determined that the Petitioner had refused to give up the two children on May 12, 2003 after a court had declined to override the agency s decision to move the children. While the ALJ determined that this act was a violation of R (a), he did not conclude it was willful. In this instance, the ALJ concluded that the Petitioner was legitimately relying upon the advice of counsel in refusing to give up the children. Although that advice proved to be unsound, the ALJ determined that the Petitioner s reliance upon it obviated the contention that her violation was willful. The ALJ concluded that several of the Respondent s remaining allegations regarding Petitioner s actions did establish violations of R (a). First, the ALJ found that Petitioner had set up visits for the children with an aunt without agency authorization. In addition, the ALJ found that the Petitioner had placed unreasonable restrictions on the mother s telephone contacts with the children, not allowed the mother to pick up the children, and not brought the children to an appointment with the mother. The ALJ also found that the

3 Page 3 Petitioner had not made the children available for telephone contact with an aunt for over six months. Finally, the ALJ found that the Petitioner had refused to allow an agency worker access to the foster home. All of these actions were held by the ALJ to constitute willful and substantial violations of R (a). The Respondent also alleged that the Petitioner violated 2000 AACS, R (e), which provides: To assure the safety and welfare of a foster child, a member of the household shall meet all of the following qualifications: (e) Any adult member of the household who provides care for foster children shall also meet the qualifications specified in R In this matter, the Respondent asserted that the Petitioner failed to meet the following qualifications in R : (h) Express a willingness, and demonstrate the ability, to work with a foster child s family or future family. (j) Demonstrate a willingness and ability to comply with the licensing rules for foster homes. The Respondent based its allegation that the Petitioner violated R (e) on a number of the Petitioner s acts: (1) The Respondent alleged that the Petitioner s adoption filings and placement appeal constituted a violation. The ALJ determined that the Petitioner was exercising statutory rights and, therefore, a violation was not established. (2) The Respondent alleged that the Petitioner had exhibited difficulty separating from a former foster child and had not accepted offered counseling. The ALJ determined that the Petitioner was not under any obligation to accept offered training and counseling and that, therefore, the Respondent had not established a willful and substantial violation. (3) The Respondent alleged that the Petitioner had violated R (e) through the unauthorized visits to an aunt referenced earlier. The ALJ determined that as this act was found to violate R

4 Page (2), the conduct did not meet the requirements of R (j) and, as a result, a willful and substantial violation of R (e) had been established. (4) The Respondent alleged that the Petitioner had placed unreasonable restrictions on the mother s telephone contacts, not shown up for doctor s appointments, and not allowed the mother to personally pick up her child. The ALJ determined that these acts had been established and that by these acts, the Petitioner did not meet the requirements of R (h). Because these acts also constituted a violation of R (a), the Petitioner did not meet the requirements of R (j). As a result of the Petitioner s failure to meet the requirements of both R (h) and (j), the ALJ held that a willful and substantial violation of R (e) had been established. (5) The Respondent alleged that the Petitioner had not made the children available for contacts with an aunt. The ALJ determined that these acts had been established and that by these acts, the Petitioner did not meet the requirements of R (h). Because these acts also constituted a violation of R (a), the Petitioner did not meet the requirements of R (j). As a result of the Petitioner s failure to meet the requirements of both R (h) and (j), the ALJ held that a willful and substantial violation of R (e) had been established. which provides: (6) The Respondent alleged that the Petitioner had refused to give up the children following a court decision and had refused to allow access to the children by an agency worker. Again, the ALJ determined that as the refusal to initially give up the children was at the advice of counsel, the violation was not willful and does not constitute a violation. The Respondent also alleged that the Petitioner had violated R (a), A foster home applicant shall do all of the following: (a) Allow the agency reasonable access to the foster home for licensing and foster child supervision purposes. The ALJ determined that on May 12, 2003, the Petitioner did not allow the agency reasonable access to the facility for licensing and foster child supervision purposes. While Petitioner claimed she denied access to prevent certain matters from being discussed

5 Page 5 in front of the children, the ALJ found that the worker s issues could have been handled by the Petitioner outside of the presence of children. The ALJ concluded, therefore, that a willful and substantial violation of R (a) had been established. On April 2, 2004, the ALJ issued and entered a Proposal for Decision (PFD) concluding that the Petitioner had willfully and substantially violated 2000 AACS, R (a), R (e), and R (a). Neither the Petitioner nor the Respondent filed Exceptions to the PFD. I concur in the ALJ s Findings of Fact and Conclusions of Law with the exception of the ALJ s determinations relative to R (a). By its plain reading, this rule regulates applicants. The Petitioner is a licensee not an applicant. While a similar rule, R (a), regulates similar conduct by licensees, that rule was not included in the Notice. As a result, because the Respondent cited the Petitioner in error for a rule only applying to applicants, and because the Petitioner is a licensee and not an applicant, a willful and substantial violation of R (a) cannot be established. ORDER NOW THEREFORE, IT IS ORDERED that: 1. To the extent not inconsistent with this Final Decision and Order, the ALJ s Proposal for Decision is adopted in its entirety and incorporated by reference and made a part of this Final Decision and Order (see attached PFD). 2. The actions of the Bureau of Family Services (now known as the Office of Children & Adult Licensing) in this matter are AFFIRMED. 3. The Petitioner s license is REVOKED effective on the date this Final Decision and Order is issued and entered. Marianne Udow, Director Family Independence Agency

6 STATE OF MICHIGAN DEPARTMENT OF LABOR & ECONOMIC GROWTH BUREAU OF HEARINGS In the matter of Docket No Lana Beaudry, Agency No. CF Petitioner v Agency: Family Independence Office of Children and Adult Licensing, Agency Respondent Case Type: Sanction / Revocation PROCEDURAL HISTORY Issued and entered this 2nd day of April, 2004 by C. David Jones Administrative Law Judge PROPOSAL FOR DECISION On or about November 17, 2003, the Bureau of Family Services (now the Office of Children and Adult Licensing, Family Independence Agency) sent Petitioner a Notice of Intent to Revoke License. On or about December 10, 2003, Petitioner's written appeal was received. On December 23, 2003, a Notice of Hearing was mailed, scheduling the hearing to commence on February 3, 2004, at 611 West Ottawa Street, Lansing, Michigan. On January 27, 2004, a Motion for Change of Venue was received from Respondent. Respondent requested that the hearing be held at a "... location in the Upper Peninsula where videoconferencing is available." Respondent also requested that Respondent' representative be allowed to appear by videoconferencing, and that the hearing scheduled for February 2, 2004, be adjourned. On February 2, 2004, an Order Granting Adjournment was issued and entered.

7 Page 2 On February 2, 2004, an Order Scheduling Telephone Conference and Hearing was issued and entered. The Order scheduled a pre-hearing conference by telephone on February 18, 2004, scheduled the hearing for February 24, 2004, February 25, 2004, and February 26, 2004, in Marquette, Michigan, and authorized the participation of Respondent's representative at hearing by videoconferencing. February 17, Because of schedule conflicts the pre-hearing conference was actually held on The hearing commenced as scheduled on February 24, Petitioner was represented by Vicki Smith, another foster parent. Respondent was represented by Carol Shuck, Analyst, with Respondent. Petitioner requested an adjournment and was denied. The hearing continued on February 25, 2004, when it concluded. The session for February 26, 2004, was cancelled. Over the two days of hearing, the following persons testified: Lana Beaudry, for Petitioner; Vicki Smith, for Petitioner; William Day, father of Children 1 and 2, for Petitioner; Stephanie Miller, friend of William Day for Petitioner; Sandra L. Sheltrow, Children's Services Worker, for Respondent; Michael Morin, Children's Services Supervisor, for Respondent; and Dennis Munger, Licensing Worker, for Respondent. The following Petitioner's exhibits were admitted: Petitioner's Exhibit 1 Petitioner's Exhibit 1A 1 Petitioner's Exhibit 1 B Petitioner's Exhibit 2 Petitioner's Exhibit 3 Petitioner's Exhibit 4 January 7, 2003, Order of Court 2/13/02 Letter from Hadas 12/12/02 Letter from Gregory Telephone Bill Physical Therapy Discharge Summary (Child 2) 7/17/03 Letter from Brzezinski

8 Page 3 Petitioner's Exhibit 5 Petitioner's Exhibit 6 Petitioner's Exhibit 7 Petitioner's Exhibit 8 Petitioner's Exhibit 9 Petitioner's Exhibit 10 Adoption Policy: Adoptive Family Selection 5/9/03 Letter from Graybill 3/3/03 Letter from Beaudry 5/1/03 Letter from Graybill Note from Social Worker York 2/23/04 Letter from Graybill The following Respondent's Exhibits were admitted: Respondent's Exhibit A Updated Service Plan, dated 12/02 Respondent's Exhibit B Treatment Plan and Service Agreement, dated 12/02 Respondent's Exhibit C Updated Service Plan, dated 3/03 Respondent's Exhibit D Treatment Plan and Service Agreement, dated 3/03 Respondent's Exhibit E Statement of Beaudry (12/4/01) Respondent's Exhibit F Agency/Foster Parent Agreement (12/10/01 ) Respondent's Exhibit G Special Evaluation Report (4/18/03) Respondent's Exhibit H Proposed Corrective Action Plan Respondent's Exhibit I Special Evaluation Report (7/15/03) At hearing, the record was left open until February 26, 2004, to receive Petitioner's Exhibit 1 C. On February 26, 2004, a request for an extension of time was received from Petitioner. Some materials were received from Petitioner, which the record was not left open for, and the materials were excluded from the record and returned to Petitioner. On March 3, 2004, an Order Leaving Record Open to March 4, 2004, was issued and entered.

9 Page 4 However, Petitioner's proposed Exhibit 1 C had been received on March 1, It is a March l' 2004, Statement from a Marquette Assistant Prosecutor. There was no indication a copy was sent to Respondent's representative, so this office sent a copy. No objection has been received from Respondent. Petitioner's Exhibit 1 C is admitted into evidence. ISSUES AND APPLICABLE LAW The Department licenses children's foster family homes pursuant to the Child Care Organizations Act, 1973 PA 116, as amended. The Administrative Rules are found at 2000 MR 15, R The issues in this case are as follows: 1. Did Petitioner willfully and substantially violate R (a), concerning cooperation with the agency service plan? 2. Did Petitioner willfully and substantially violate R and R (h and j), concerning working with the child's family and complying with licensing rules? 3. Did Petitioner willfully and substantially violate R (a), concerning allowing reasonable access to the foster home? license? FINDINGS OF FACT 4. May the Department revoke Petitioner's children's foster family home 1. Petitioner has held a children's foster care license since June She currently holds a regular license for a foster family home, capacity of two in Marquette County. The license was effective December 18, 2001, and was scheduled to expire December 17, Prior to January 2002, Petitioner had cared for a total of five children in

10 Page 5 her home. She was very concerned about and protective of the foster children, and provided adequate care. 2. Petitioner's authorized child placing agency is the Marquette County Family Independence Agency. 3. On December 4, 2001, Petitioner signed a statement indicating she had read the foster parent handbook and knew what was expected of her. The handbook had recently been modified, and Petitioner received training on the modified handbook approximately December 4, On December 10' 2001, Petitioner signed an Agency I Foster Parent Agreement with the Marquette FIA. In relevant part, Petitioner agreed as follows: "...7. To admit representatives of the agency into the home upon request and to cooperate with the agency's monitoring program for the maintenance of foster home quality; 8. To accept the agency's final responsibility for decisions regarding the foster child's health and welfare;..." 5. Petitioner was aware of foster parent rules. 6. On or about December 10, 2001, Petitioner admitted to her worker that she was having emotional difficulties involving a child previously in her home but adopted by Petitioner's nephew. Petitioner was attempting to carry on a relationship with the child after adoption, but the adoptive parent (her nephew) was attempting to break her bond with the child. Petitioner told the worker she was interested in receiving training and counseling over grief and loss. The worker offered to look into training and counseling for Petitioner, but

11 Page 6 Petitioner declined. Petitioner did obtain some information on her own, but did not receive counseling. 7. On January 30, 2002, the agency placed Child 1 and Child 2 in Petitioner's care. Child 1 was a female, born January 3, Child 2 was a male born November 2, Child 1 and 2 were siblings. 8. Child 1 and 2 were removed from their mother by children's protective services. At placement, Child 1 was speech and language impaired, habitually walked on her toes, and was somewhat uncoordinated. Child 2 at placement had speech problems, developmental and cognitive delays, and problems with gross motor skills. Child 1 and Child 2 significantly improved in these areas during their placement with Petitioner. 9. The parents of Child 1 and Child 2 are separated and apparently divorced, living in the Marquette area. They each had difficulty caring for the children, who were living only with the mother when placed in foster care. The mother is employed as a waitress, and the father attends Northern Michigan University. 10. The children have an aunt (mother's sister) who lives in Ottawa County with her fiancé. A home study has been completed, which approved placement of the children with the aunt. 11. The original service plan (not on record) was to reunify the children with their mother. However, as the case progressed, and the mother was assessed, it appeared that the amount of time necessary to turn the mother around was too long to keep the children in foster care. It was decided, therefore, to seek termination of parental rights and move the children to the aunt's home for adoption. 12. On October 25, 2002, Petitioner attended a meeting with foster care worker Sheltrow and Children's Services Supervisor Morin. Petitioner seemed to believe she

12 Page 7 could make her own service plan, but the agency advised her she had to follow the agency's plan. The agency reminded Petitioner that the plan was to move the children to the aunt's home, although no date had yet been decided. Petitioner admitted she had contacted the aunt "on the sly" and set up visits the agency did not know about so the visits would not be considered "transition time." 13. Petitioner was unhappy with the agency's plan for the aunt to adopt Child 1 and 2. Petitioner filed a letter with the Marquette Court indicating her intent to adopt Child 1 and Child On December 5, 2002, a written updated Service Plan was issued. In reference to the children's mother, it indicated she was ordered by the Court to have unsupervised visits with Child 1 and Child 2 two times per week. In reference to placement, it expressed an intent to move the children to the aunt's home December 16, The agency discussed the plan with Petitioner. 15. Petitioner filed an appeal with the Foster Care Review Board over the move. The Board issued a decision December 11' 2002, opposing transfer to the aunt. The matter was heard by the Circuit Court, Family Division, Marquette County, and on January 7, 2003, Judge Anderegg issued a written opinion (Petitioner's Exhibit 1). Judge Anderegg ordered continued placement with Petitioner, not because of deficiencies in the aunt's home or Petitioner's adoption of the children, but because the father had changed his mind and now wanted custody. Once parental rights were addressed, the Court stated it would reconsider placement. 16. It is unclear on record what position the Marquette County Chief Assistant Prosecutor took on the proposed December 2002 transfer of the children to the

13 Page 8 aunt. There is evidence he supported the transfer, he opposed the transfer, he abstained, and he personally opposed the transfer but argued for it. 17. Petitioner would not allow the children's mother to speak by telephone to the children at the facility unless the agency arranged times convenient for Petitioner beforehand. Petitioner explained that sometimes she was not home, and she had four children to care for. 18. On a day (prior to April 18, 2003) scheduled for the mother's visit with the children, Petitioner left a message for the agency that the children were too sick to visit the mother. Petitioner informed the agency that the children had a doctor's appointment, and the agency insisted the mother be allowed to attend. Petitioner did not want the mother there, allegedly because of the mother's prior "childish" behavior at doctor's appointments. Petitioner asked her attorney for advice, who apparently said the mother, could be there. The mother went to the doctor's appointment, but Petitioner did not show up with the children. 19. Petitioner would not allow the mother to pick up Child 2 at her facility to attend his play group sessions about four times per month. Indeed, Petitioner would not allow the mother to be at the facility at all. For visits, the case aide drove, picked up the mother, dropped the mother at a gas station, picked up the children, again picked up the mother, and drove them to a place they could visit. Petitioner's explanation was that Petitioner feared the mother, thought the mother would kidnap the children, and worried about a scene in front of the children. 20. From approximately November 2002 to early May 2003, Petitioner did not make the children available for telephone contact with their aunt. Petitioner told the agency she was too busy. The agency arranged for telephone contact with the aunt at the Family Independence Agency.

14 Page On March 6, 2003, a written Updated Service Plan was issued. It expressed an intent to move the children to the aunt's house. The agency informed Petitioner of the Plan. 22. On February 14, 2003, a licensing investigation was initiated. On April 18, 2003, the Special Evaluation Report was issued. The agency found violations of R ; R (a); and R (h). The agency recommended modification of the license to provisional status, and reduction in capacity to one, upon the submission of an acceptable corrective action plan. Some of these alleged violations are listed in the current Notice of Intent to Revoke. 23. On April 28, 2003, the Court terminated the parental rights of the biological parents of Child 1 and Child On or about May 6, 2003, the agency received from Petitioner a proposed corrective action plan. In reference to the alleged violation of R (a), the plan stated Petitioner would "... follow the agency's written policies and procedures for foster parents and foster care for as long as I am a foster parent..." 25. The agency did not decide whether to accept Petitioner's corrective plan because of the subsequent developments, including additional alleged violations. 26. On May 8, 2003, Petitioner filed a petition to adopt Child 1 and Child 2 pursuant to MCL There was a hearing on May 8, 2003, and the Court did not grant the petition. Petitioner filed the petition because she felt the children were already part of her family, and she wanted them to stay with her. 27. Also on May 8, 2003, there was a Court hearing over the agency's recommendation to move the children to their aunt's home. Petitioner was present and was

15 Page 10 represented by counsel. The Judge declined to veto the recommended move. The agency told Petitioner it would take the children from her on May 12, 2003, at 8:00 a.m. 28. On May 9, 2003, the agency spoke with Petitioner by telephone and informed her, the children would be picked up on May 12, 2003, at 9:00 a.m., not 8:00 a.m. Petitioner expressed no problem and mentioned no Court action. 29. Petitioner's attorney alleged that on May 9, 2003, he filed with the Court a Motion to Stay Change of Placement Pending a Hearing pursuant to MCL The Court did not grant the motion. Petitioner knew the Motion was filed. 30. On May 9, 2003, the agency spoke with Judge Anderegg about the Motion and showed him the Motion. He indicated he was going on vacation and would deal with it when he got back. 31. On May 12, 2003, the agency worker arrived at Petitioner's facility and requested the children. Petitioner said she would not give up the children, and gave the worker her attorney's telephone number. The worker asked to come into the facility to use the telephone to call the attorney, and Petitioner said no. 32. The agency worker drove to her office, called the attorney, explained what Petitioner had said, and explained Judge Anderegg s reaction to his Motion. The attorney called the worker back later and said he would instruct Petitioner to let the worker take the children. The worker returned to the facility and Petitioner let the worker take the children about 10:00 a.m. to 10:30 a.m. on May 12, Petitioner initially refused to let the worker take the children based on advice from her attorney. A letter from her attorney (Petitioner's Exhibit 10) explains this advice. The attorney claimed, "Under normal Michigan Rules of Litigation, parties requesting

16 Page 11 a stay based on reconsideration would expect the matter to be held in abeyance until a judge takes action on the request for the stay." 34. Petitioner testified that she refused to allow the worker access to the foster home because she did not want adult matters discussed in front of the children. 35. A licensing investigation was made in reference to the events of May 12, On July 15, 2003, a Special Evaluation Report was issued, finding certain violations, and recommending license revocation. Some of these alleged violations are listed in the Notice of Intent to Revoke License. CONCLUSIONS OF LAW A. Introduction 1. Alleged Violations The alleged violations in this case are those set forth in the Notice of Intent to Revoke License, dated November 17, This Notice of Intent selected some, but not other alleged violations from the two recent licensing reports: Respondent's Exhibit 6 (dated April 18, 2003), and Respondent's Exhibit I (dated July 15, 2003). At hearing some testimony was presented on alleged violations found in the licensing reports but not in the Notice of Intent. That testimony is disregarded in this Proposal for Decision. These unselected alleged violations were not the basis for the proposed revocation, are beyond the scope of this hearing, and are irrelevant. 2. Legal Authority for License Revocation In reference to license revocation, the law provides as follows: The department may deny, revoke, or refuse to renew a license or certificate of registration of a child care organization when the licensee, registrant, or applicant falsifies information on the application or willfully and substantially violates this act, the rules promulgated under this act, or the terms of the license or certificate of registration..." MCL (2)

17 Page 12 following rule: B. Count l 1. Introduction Respondent alleged that Petitioner willfully and substantially violated the A foster parent shall carry out each of the following functions: (a) Cooperate with and assist the agency in the agency's implementation of the service plan for children and their families." 2000 MR 15, R (a) Specifically, Respondent alleged that Petitioner's conduct, as set forth in certain paragraphs of the Notice of Intent to Revoke License (Notice of Intent) showed a violation of the above rule. 2. Paragraphs 9. 10, and 17 of Notice of Intent The Findings of Fact in reference to these paragraphs are as follows: Paragraph 9, Finding 13; Paragraph 10, Finding 15; Paragraph 17, Findings 26 and 27. Respondent has not established that Petitioner willfully and substantially violated R (a) (or MCL (2)) by the conduct set forth in paragraphs 9, 10, and 17 of the Notice of Intent. Paragraphs 9 and 17 concern Petitioner's attempts to adopt Child 1 and Child 2 in Court, and that attempt is allowed by statute: MCL (2). Paragraph 10 concerns Petitioner's appeal of a proposed change in foster care placement, and such an appeal is allowed by statute: MCL 712A. 13(b); and MCL (1)(f) There is no indication in the Child Care Organizations Act or rules promulgated there-under that a foster parent must give up these statutory rights to have a foster family home license. Indeed, even if I viewed Petitioner's exercise of her statutory rights as a violation, the violation could not be considered willful. There was no reason for Petitioner to know that exercise of rights under certain laws would be considered a violation of licensing law.

18 Page Paragraph 8 of Notice of Intent (Finding of Fact 12) By setting up visits of the children with the aunt, which the agency did not know about, Petitioner failed to cooperate with and assist the agency in implementation of the plan. This was a willful and substantial violation of R (a). 4. Paragraph 11 of Notice of Intent (Findings of Fact ) By placing unreasonable restrictions on the mother's telephone contact with her children, not showing up for a doctor's appointment with the children, which the mother came to (essentially preventing a visit with the children), and not allowing the mother personally to pick up Child 2 at the facility (thus requiring the case aide engage in a complicated pick-up schedule), Petitioner failed to cooperate with and assist the agency in implementation of the plan. This was before parental rights were terminated, and the mother had court-ordered rights to unsupervised visitation. This was a willful and substantial violation of R (a). 5. Paragraph 12 of Notice of Intent (Finding of Fact 20) By not making the children available for telephone contact with their aunt from approximately November 2002 to May 2003, Petitioner failed to cooperate with and assist the agency in implementation of the plan. This was a willful and substantial violation of R (a). 6. Paragraph 14 of Notice of Intent (Finding of Fact 22) This Paragraph refers to the April 18, 2003, Special Evaluation Report, Respondent's Exhibit G, which found some willful and substantial violations. Several of those violations are referred to in other paragraphs of the Notice of Intent (and other sections of this Proposal for Decision). This Paragraph, therefore, is essentially duplicative, and there is no need to deal with in it detail.

19 Page Paragraph 19 of Notice of Intent (Finding of Fact 31-34) a. Petitioner's initial refusal to give up the children. Petitioner's initial refusal to give up the children on May 12, 2003, after the Court had declined to veto the move, was a clear refusal to assist in implementation of the plan, a violation of R (a). The key question, however, is whether the violation was willful. Petitioner relied on advice from her attorney. Petitioner's attorney advised her not to give up the children. His explanation for the advice was that it was "normal" for a mother to be held in abeyance while a request for stay was being considered, Petitioner's Exhibit 10. Her attorney's advice was very bad. No party has a stay until the Court issues a stay. To ask for something is not to receive it. However, there is no indication Petitioner, or a reasonable client, would know this advice was bad. I cannot say her violation was willful. b. Petitioner's refusal to allow the worker access to the foster home. Petitioner's refusal to allow the worker access to the foster home was a failure to assist in implementation of the plan, and willful and substantial violation of R (a). following rules: C. Count II 1. Introduction Respondent alleged that Petitioner willfully and substantially violated the To assure the safety and welfare of a foster child, a member of the household shall meet all of the following qualifications:... (e) Any adult member of the household who provides care for foster children shall also meet the qualifications specified in R R (e)

20 Page 15 A foster home applicant shall meet -all of the following qualifications:... (h) Express a willingness, and demonstrate the ability, to work with a foster child's family or future family... G) Demonstrate a willingness and ability to comply with the licensing rules for foster homes. R (h & j) Respondent alleged that Petitioner's conduct, as set forth in certain paragraphs of the Notice of Intent, showed a violation of these rules. 2. Paragraphs and 17 of Notice of Intent Respondent has not established willful and substantial violations by the conduct set forth in these Paragraphs. See Conclusions of Law, Section 82 above. 3. Paragraph 6 of Notice of Intent (Finding of Fact 6) Respondent has not established willful and substantial violations of the cited rules by the conduct set forth in this Paragraph. The child involved was a former, not a current foster child. Respondent has not shown Petitioner was under any obligation to accept the offered training and counseling. There is no indication her conduct violated any other licensing rule. 4. Paragraph 8 of Notice of Intent (Finding of Fact 12) Respondent has not established a willful and substantial violation of R (h) by the conduct set forth in this paragraph. It is not clear that by setting up "on the sly" visits Petitioner was not working with the aunt. The meaning of "transition time" has not been fully explained on record. Petitioner was not working with the agency, but because of that I have found that she violated R (a) above. Petitioner did willfully and substantially violate R ) by the conduct set forth in this Paragraph. The conduct violates another rule, R (a), as discussed above.

21 Page Paragraph 11 of Notice of Intent (Findings of Fact ) By placing unreasonable restrictions on the mother's telephone contact with the children, not showing up for the doctor's appointment, which the mother came to, and not allowing the mother to personally pick up Child 2, Petitioner did not express a willingness and demonstrate the ability to work with the foster child's family. This was a willful and substantial violation of R (h). Because of the violation of R (h), Petitioner also willfully and substantially violated R ). 6. Paragraph 12 of Notice of Intent (Finding of Fact 20) By not making the children available for telephone contact with the aunt, Petitioner did not express a willingness and demonstrate an ability to work with the children's family and future family. This was a willful and substantial violation of R (h). Because of the violation of R (h), Petitioner also willfully and substantially violated R ). 7. Paragraph 14 of Notice of Intent (Finding of Fact 22) As noted above (Conclusions of Law, Section B6), this is essentially duplicative, and there is no need to deal with it in detail. 8. Paragraph 19 of Notice of Intent (Findings of Fact 31-34) a. Petitioner's initial refusal to give up the children. Petitioner's initial refusal to give up the children on May 12, 2003, after the Court had declined to veto the move, was a clear refusal to work with the family, and a violation of R (h). it was not. The key question, however, is whether the violation was willful. As noted above,

22 Page 17 Since Petitioner has not shown a willful and substantial violation of R (h), or other rule, Petitioner has not shown a violation of R ). b. Petitioner's refusal to allow the worker access to the foster home. Petitioner's refusal to allow the worker access to the foster home did not involve working with the family, so it was not a violation of R (h). However, as noted elsewhere, the refusal was a willful and substantial violation of R (a). Therefore, Petitioner willfully and substantially violated R ). following rule: D. Count III Respondent alleged that Petitioner willfully and substantially violated the A foster home applicant shall do all of the following: a) Allow the agency reasonable access to the foster home for licensing and foster child supervision purposes." R (a) Specifically, Respondent alleged that Petitioner's conduct as set forth in Paragraph 19 of the Notice of Intent showed a violation of the cited rule. Actually, only part of the conduct discussed in Paragraph 19 is relevant: the denial of access to the facility. See Findings of Fact 31 and 34. On May 12, 2003, Petitioner did not allow the agency reasonable access to the facility for licensing and foster child supervision purposes. Petitioner claimed she denied access because she did not want adult matters discussed in front of the children, but the worker's call could have been made out of the presence of the children. Petitioner willfully and substantially violated R (a). PROPOSED DECISION Based on the above Findings of Fact and Conclusions of Law, the undersigned Administrative Law Judge recommends the following decision:

23 Page In reference to Count I, R (a), concerning cooperation with the agency plan, Respondent has proven that the following paragraphs of the Notice of Intent, but not the other paragraphs cited, are willful and substantial violations: 8, 11' 12, and 19 (Partial). 2. In reference to Count II, R (e); R (h and j), concerning working with the child's family and complying with licensing rules, Respondent has proven that the following paragraphs of the Notice of Intent, but not the other paragraphs cited, are willful and substantial violations. 8 (Partial), 11' 12, and 19 (Partial). 3. In reference to Count III, R (a), concerning reasonable access to the foster home, Respondent has proven that the relevant conduct in Paragraph 19 of the Notice of Intent was a willful and substantial violation. license. EXCEPTIONS 4. Respondent may revoke Petitioner's children's foster family home The parties may file exceptions to this Proposal for Decision within 15 days after the Proposal for Decision is issued and entered. An opposing party may file a response within 5 days after exceptions are filed. Any such exceptions and responses shall be filed with the Department of Labor & Economic Growth, Bureau of Hearings, Ottawa State Office Building, 611 West Ottawa Street, Lansing, Michigan, C. David Jones Administrative Law Judge