Dupes v. State, Dept. of Health & Rehabilitative Services

• Decision Date: 19 December 1988
• Docket Number: No. BR-426,BR-426
• Citation: 13 Fla. L. Weekly 2761,536 So.2d 311
• Parties: 13 Fla. L. Weekly 2761 Mr. and Mrs. James DUPES, Appellants, v. STATE of Florida, DEPARTMENT OF HEALTH & REHABILITATIVE SERVICES, Appellee.
• Court: Florida District Court of Appeals

Page 311

536 So.2d 311

13 Fla. L. Weekly 2761

Mr. and Mrs. James DUPES, Appellants, v. STATE of Florida, DEPARTMENT OF HEALTH & REHABILITATIVE SERVICES, Appellee.

No. BR-426.

District Court of Appeal of Florida, First District.

Dec. 19, 1988.

Rehearing Denied Jan. 31, 1989.

David M. Douglas, Jacksonville, for appellants.

John R. Perry, Asst. Dist. Legal Counsel, HRS District 2, Tallahassee, for appellee.

SMITH, Chief Judge.

Appellants, Mr. and Mrs. James Dupes, seek review of a final order entered by appellee, Department of Health and Rehabilitative Services (HRS), directing them to pay $2,002.60 for the cost of maintaining their minor child while incarcerated as a juvenile delinquent. We reverse and remand for further proceedings.

The issues, as framed by appellants, would have this court determine: the constitutional validity of section 402.33, Florida Statutes (1985); the validity of the rule establishing the fee collection system employed by HRS (Rule 10-6.010, et seq., Florida Administrative Code); and whether section 39.11, Florida Statutes, containing special provisions dealing with support and maintenance fees for juveniles, preempts the more general provisions for support and maintenance found in section 402.33. We find that the statute, section 402.33, is facially constitutional and that its operation and effect is not preempted by section 39.11. We agree with appellants, however, that section 402.33 may have been unconstitutionally applied by the department in its assessment of fees against appellants. We further find that because of procedural deficiencies resulting in the absence of a proceeding below, and a record and order adequately addressing the facts and issues presented by this controversy, the remaining questions on appeal are not ripe for review.

The facts leading to this appeal are that on April 15, 1986, while on a runaway status, appellants' son burglarized their home. Shortly thereafter he was adjudicated a delinquent child and committed to the custody of HRS. On May 30, 1986, he was placed in the Arthur G. Dozier School in Marianna, Florida, where he remained until his transfer to the Marine Institute in Jacksonville, Florida, on July 30, 1986.

After receiving financial information from appellants, pursuant to provisions of its applicable rule, HRS sought reimbursement for the cost of maintaining appellants' son at the Dozier School under the provisions of section 402.33. According to HRS, the cost of maintaining appellants' son in the Dozier School amounted to $1,497.00 per month. Using its "sliding fee schedule," which takes into account the size of appellants' family (three members) and their combined gross monthly income of $4,616.00, HRS determined that the amount of the monthly fee to be assessed against appellants for services to their son would be 21% of the parents' gross income, or $969.00 per month. Nothing in the rule or other information in the record discloses how the 21% figure was arrived at.

Upon receipt of appellants' request for a fee waiver, HRS informed appellants, pursuant to its rule, that their request for a fee waiver would be submitted to a review committee for a recommendation to the district administrator for HRS, who alone had the authority to approve their request. Appellants were also advised of the time and date when the review committee would meet at the Dozier School, and were told they could attend this meeting. On July 28, 1986, HRS informed appellants that their request for a fee waiver had been denied by the review committee, and that if they disagreed with the agency's decision not to waive the fee, they could "request that [the] problem be heard by an administrative hearing officer." No mention was made in this notice, however, of a time limitation on the request for such a hearing.

On September 1, 1986, appellants received a letter advising that they owed HRS $2,002.60, and they were requested to make arrangements for payment. In response, on September 11, 1986, appellants sent HRS a check for $400.00 as payment in full for their child's two-month stay at Dozier, which tender of payment was accompanied by a lengthy letter explaining that the fee requested was "unaffordable," and in which they indicated also their disagreement with the methods by which the fee was assessed, and their intention to "appeal" the denial of their requested waiver.

On September 16, 1986, HRS returned the check to appellants and advised them that they had a "right to request an appeal pursuant to the provisions of Chapter 120, Florida Statutes." HRS further explained that Chapter 120 is "the Administrative Procedures Act, and provides the payor with an opportunity for appeal through an Administrative Hearing." Again, HRS failed to specify any time limit for requesting such "an appeal." Thereafter, appellants requested information on Chapter 120; and on October 14, 1986, HRS mailed to appellants portions of Chapter 120 and copies of certain rules which they were told "relate to the filing [of] a petition for an administrative hearing." Nothing in this letter or its enclosures advised of the time for requesting an administrative hearing.

The next communication received by appellants was a final order rendered by HRS on December 31, 1986, ordering appellants to pay the sum of $2,002.60 within thirty days, and advising them of their right to appeal the order to the First District Court of Appeal within thirty days of the date of the order. The order also recited that HRS had notified appellants of their right to appeal the assessment pursuant to Chapter 120 and that appellants had "failed to submit to the department a notice of appeal, either within thirty days of notification of their right to appeal or within thirty days of compliance with their request for further information." Thus, as seen by the above recitation of events, except for the exchange of communications between appellants and HRS, this controversy appears before this court without the benefit of an administrative proceeding below at which evidence was submitted and arguments presented and without the benefit of an agency order containing findings and conclusions on the multiple issues of fact and law generated by this appeal.

Appellants challenge the constitutionality of the statute, section 402.33, Florida Statutes (1986 Supp.), on due process and equal protection grounds, Fourteenth Amendment, United States Constitution; Article I, Section[s] 2, 9, Florida Constitution. Section 402.33(2) provides, in part:

(2) The Department, in accordance with rules established by it, shall either charge, assess, or collect, or cause to be charged, assessed, or collected, fees for any service it may provide its clients either directly or through its agencies or contractors....

The statute excepts from its operation the cost of certain specified services, including diagnostic and evaluation procedures necessary to determine a client's eligibility and need for services provided by HRS, and educational services provided in lieu of public education. None of these excepted services are shown to have been included in the charges made by HRS in this case.

Another subsection of the statute, 402.33(3), provides that the "client" or the client's "responsible party," shall be liable for any fee assessed by HRS as the cost of providing a service. The term "client" is defined as "any natural person receiving services, provided by the department, including supervision, care and maintenance, ...," and the "responsible party" means "any person legally responsible for the financial support of the client...." Sections 402.33(1)(b) and (f), Florida Statutes (1986 Supp.).

By administrative rule, HRS has defined "service" to mean "aid, assistance or goods provided or purchased by the Department, either directly or through its agencies or contractors, including, but not limited to treatment, counseling, therapy, training or residential care." Rule 10-6.010(19), Florida Administrative Code.

Although the statutory provisions above referred to do not expressly direct HRS to assess and collect maintenance fees from parents of delinquent children who have been committed to the custody of the department, such an intention reasonably appears from references in the statute to collection of fees established pursuant to Chapter 39, Florida Statutes, which controls both delinquency and dependency proceedings. ¹

We find appellant's challenge to the facial validity of section 402.33 to be without merit. It is well established under both common and statutory law that parents are responsible for the support and maintenance of their minor children. Variety Children's Hospital, Inc. v. Vigliotti, 385 So.2d 1052 (Fla. 3rd DCA 1980). Their support obligation continues irrespective of their custodial rights. See State v. Interest of S.M.G., 313 So.2d 761 (Fla.1975) (parents of delinquent child could be ordered to pay the person or institution having custody reasonable sums of money for the child's care, support and maintenance), and Department of Health & Rehabilitative Services v. Spencer, 430 So.2d 509 (Fla. 1st DCA 1983) (parents of dependent child could be required to pay fees to HRS for services received by their child while in foster care). Therefore, to the extent that section 402.33 is a codification of the preexisting duty of parents to support their children, there can be no violation of the due process and equal protection clauses of the federal or state constitutions.

However, section 402.33 does not by its express terms limit HRS to obtaining reimbursement for basic support costs; and as we interpret the position of HRS, it assumes that it has the authority under this statute to also assess and collect fees against the parents (or others liable) for the incarceration and rehabilitation of the juvenile delinquent. To the extent that the department has applied the statute as authority for assessment of costs of...