STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BETTY CASTOR, as Commissioner ) of Education, )

)

Petitioner, )

)

vs. ) CASE NO. 92-6173

)

JONATHAN W. WHYTE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on September 15, 1993, in Jacksonville, Florida.

APPEARANCES

For Petitioner: Robert J. Boyd, Esquire

Jill M. Boyd, Esquire Post Office Box 26

Tallahassee, Florida 32302

For Respondent: Wm. Bruce Muench, Esquire

438 East Monroe Street Jacksonville, Florida 32202

STATEMENT OF THE ISSUE

The issue is whether respondent's teaching certificate should be disciplined for the reasons cited in the administrative complaint.

PRELIMINARY STATEMENT

This matter began on September 21, 1992, when petitioner, Betty Castor, as Commissioner of Education, issued an administrative complaint charging respondent, Jonathan W. Whyte, a certified teacher, with having violated Subsection 231.28(1)(c), Florida Statutes. More specifically, the complaint alleged that from July 15, 1990, to July 31, 1990, respondent "committed sexual acts upon his five-year-old daughter," including but not limited to "kissing with an open mouth, engaging in oral sex and fondling of genitals."

On April 15, 1993, petitioner filed a motion to amend complaint wherein it proposed to charge that in July 1990, respondent had committed sexual acts, including "kissing with an open mouth, engaging in oral sex, fondling of genitals, and penile penetration of the vagina," and in December 1992 "again committed sexual acts upon his daughter...includ(ing)...fondling of genitals, penile penetration of the vagina, and other inappropriate touching...and told his daughter, Don't tell anybody I did this." This motion was later granted.

Respondent disputed the above allegations and requested a formal hearing pursuant to Subsection 120.57(1), Florida Statutes, to contest the proposed agency action. The matter was thereafter referred by petitioner to the Division of Administrative Hearings on October 13, 1992, with a request that a Hearing Officer be assigned to conduct a hearing. By notice of hearing dated November 5, 1992, a final hearing was scheduled on February 19, 1993, in Jacksonville, Florida. At petitioner's request, the matter was continued to May 18, 1993. At respondent's request, the matter was again rescheduled to July 20, 1993. On his own motion, and "due to a broken leg," the assigned Hearing Officer rescheduled the case to September 15, 1993, at the same location. On September 10, 1993, the case was transferred from Hearing Officer Stephen F. Dean to the undersigned.

At final hearing, petitioner presented the videotaped deposition testimony of S. W., the alleged victim; Dr. Sheldon T. Kaplan, a psychologist and accepted as an expert in psychology; Sharon Brownlee, an HRS child protective investigator; and George B. Gazdic, a detective with the Jacksonville sheriff's office. Also, it offered into evidence petitioner's exhibits 1-4. All exhibits were received in evidence. Exhibits 2 and 3 are the deposition testimony of the alleged victim and Dr. Keith R. D'Amato, a psychologist and accepted as an expert in child sexual abuse, respectively. Finally, a ruling was reserved on petitioner's request that the videotape interview of the alleged victim taken by Dr. D'Amato be received as substantive evidence. Respondent testified on his own behalf and presented the testimony of Dr. Harry Krop, a psychologist and accepted as an expert in child sexual abuse; Colin Whyte and Nancy Whyte, his parents; Courtney Porter and Melissa Lantz, both former students at Terry Parker High School; Jeffrey Whyte, his brother; Carl Shumaker, a teacher at Terry Parker High School; Walter Thomas Lane, a friend of his ex-wife; Mona Coppedge and Giselle LaVerde, family friends; Ron J. Poppell, principal at Fletcher High School; and William A. Jackson, former principal at Terry Parker High School.

Also, he offered respondent's exhibits 1-3. All exhibits were received in evidence except exhibit 2.

The transcript of hearing (two volumes) was filed on October 14, 1993. Proposed findings of fact and conclusions of law were filed by petitioner on November 3, 1993. Respondent did not file a proposed order. A ruling on each proposed finding of fact is made in the Appendix attached to this Recommended Order.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of fact are determined:

1. Background

   
   

   1. At all times relevant hereto, respondent, Jonathan W. Whyte, held teaching certificate number 517135 issued by the Department of Education. The certificate covers the area of physical education and is valid through June 30, 1996. When the relevant events herein occurred, respondent was certified as a teacher and was employed in various positions (both instructional and non- instructional) at Terry Parker High School (TPHS) in Jacksonville, Florida. The school is a part of the Duval County School District (District).

      
      

   2. Respondent was married to and lived with Cathy Whyte until they separated in November 1989. They had two children, S. W., born on November 22,

      1985, who is the alleged victim in this case, and C. W., an older brother whose age is unknown. In addition, Cathy had two older boys from a prior marriage.

      The six lived together in Jacksonville, Florida, where respondent was employed as a teacher and coach at TPHS.

      
      

   3. Shortly after the separation, or in March 1990, dissolution proceedings were initiated by the wife, and a somewhat acrimonious and lengthy custody battle for the two biological children ensued. A dissolution of the marriage was eventually granted, and Cathy was given primary custody of the two children while respondent received visitation rights during parts of the summer and Christmas holidays. In 1990, or after the two were separated but before the marriage was dissolved, Cathy relocated to Connecticut with her boyfriend and another male friend taking all four children with her. In December 1990, charges that respondent may have sexually abused S. W. were allegedly made by the daughter to the mother who reported these allegations to Connecticut authorities. The charges were subsequently reported to Florida authorities, and after learning of them, the District temporarily removed respondent from the classroom in 1991 and reassigned him with pay to the media center for the remainder of the school year. Because the charges still remained unresolved at the beginning of school year 1992-93, respondent was temporarily reassigned with pay to the transportation center for that school year. By the summer of 1993, respondent had not taught in a classroom for two consecutive years, and this constituted a ground for the District to refuse to renew respondent's annual contract for school year 1993-94. Consequently, he was forced to seek employment in an unrelated field pending the outcome of this complaint.

      
      

   4. In September 1992, petitioner, Betty Castor, as Commissioner of Education, issued an administrative complaint against respondent charging him with sexually abusing his daughter in July 1990. The complaint was later amended to add the charge that he also sexually abused his daughter during Christmas holidays of 1992. The filing of the complaint prompted respondent to request a hearing.

      
      

2. The Allegations

1. The origin of the charges

   1. The administrative complaint, as amended, alleges that from July 15, 1990, to July 31, 1990, the

      Respondent committed sexual acts upon his five year old daughter. Such acts included but were not limited to kissing with an open mouth, engaging in oral sex, fondling of

      genitals, and penile penetration of the vagina.

      
      

      The complaint goes on to allege that

      
      

      on or about December of 1992, when the Respondent's daughter was visiting him for Christmas vacation in Florida, while the Respondent's daughter was at her Grandparent's home, the Respondent again committed sexual acts upon his daughter.

      Such acts included but were not limited to fondling of genitals, penile penetration of the vagina, and other inappropriate touching.

      The Respondent thereupon told his daughter, "Don't tell anyone I did this."

      
      

      The veracity of these allegations, which respondent strongly denies, is discussed in greater detail below.

      
      

   2. In December 1990, or after Cathy had moved to Connecticut and while she and respondent were in the midst of a custody battle, charges that respondent had sexually abused his daughter first arose. These charges were lodged by his estranged wife after she allegedly heard these complaints from her then five year old daughter. The matter was referred to the state police, and the daughter was interviewed on videotape by a female state trooper. This videotape was later furnished to the Florida circuit court having jurisdiction over the dissolution and custody matters.

      
      

   3. In March 1991, the Department of Health and Rehabilitative Services (HRS) also received the same report that respondent had abused his daughter in July 1990. After an investigation was conducted, the report was classified by HRS as unfounded.

      
      

   4. In late 1992 or early 1993, the mother again reported to Connecticut authorities that respondent sexually abused his daughter while she visited him during Christmas holidays of 1992. The charges were referred to the Jacksonville sheriff's office in January 1993 and were later incorporated by petitioner into an amended complaint.

      
      

2. The validity of the charges

1. In support of the complaint, petitioner has relied upon the testimony of the alleged victim, two psychologists, an HRS investigator, and a sheriff's detective. The mother did not testify. Although the alleged victim made statements concerning the allegations to each of these witnesses, petitioner has conceded that, with one exception, all of these statements are hearsay and can be used only for the purpose of supplementing and explaining other competent evidence, if any. As to the one claimed exception, which involves the statements made by the child during an interview with Dr. D'Amato, a psychologist, the circumstances surrounding the making of the child's statements indicate a lack of reliability, and they are accordingly deemed to be hearsay. The specific reasons relied upon by the undersigned in making this finding are cited below.

   
   

2. The validity of the charges turns in large measure on the veracity of the alleged victim's testimony. Bearing on this issue are several considerations. First, the allegations in the amended complaint arose during the course of a protracted child custody battle. Where there is marital conflict, divorce or custody proceedings, false sexual abuse allegations are not uncommon. Indeed, according to the accepted testimony of one expert, Dr. Krop, a higher percentage of false sexual allegations are made by a parent in this type of case. At the same time, there was evidence here of the presence of the parental alienation syndrome. In other words, one parent (the mother) was attempting through negative statements to alienate the children, including S. W., towards respondent, the estranged parent. When such alienation occurs, it tends to cast doubt on the credibility of the complaints of the alleged victim. Further, the evidence showed that during the child's first interview concerning the alleged abuse in late 1990 or early 1991 with a Connecticut state trooper, she was "contaminated" by inappropriate questioning and improper interview techniques. For example, during that interview, the trooper improperly

   interrogated, rather than questioned, the child. In addition, and contrary to accepted practice, the mother was allowed to remain in the room during the interview and was asked to verify some of the child's responses. Also, the interrogator repeatedly used leading questions and prompted the child with the desired responses. When contamination such as this occurs, any further allegations of abuse must be viewed "suspiciously" and are placed in doubt since the child is vulnerable to figures of authority and may give an answer, whether truthful or not, simply because she believes that the answer given is expected by the interrogator. Moreover, by being "interviewed" in this manner, the child was "conditioned" to give the same responses in subsequent interviews to authority figures. It is also noted that during the child's videotaped deposition in May 1993, which has been received in evidence as petitioner's exhibit 2, her answers lacked sponteneity, and she was repeatedly led by counsel and answered many questions only after being given the suggested answer. At that time, she acknowledged that "someone" had told her that by confirming that abuse had occurred, it would "help" her father. It is noteworthy that during the deposition, while claiming that some abuse occurred, the alleged victim specifically denied the allegations of oral sex, penile penetration and kissing with an open mouth, all being charges in the amended complaint. She also changed her testimony as to the number of times she was abused, and she used and understood the meaning of the words "vagina" and "penis" because of knowledge imparted to her by her mother. It is extremely unusual for a child of that age to use and understand those anatomical words. Collectively, these considerations cast considerable doubt on the credibility of the alleged victim's testimony and lead the undersigned to find that it should not be accepted. Given this finding, the hearsay testimony (consisting of statements made by the child during various interviews) offered by the HRS investigator, sheriff's detective and two psychologists does not supplement or explain any competent evidence of record and has been disregarded. Finally, the undersigned has also considered other pertinent testimony that supports the above findings, and that accepted testimony has been set forth below.

   
   

3. The charge that respondent sexually abused his daughter during Christmas holidays of 1992 does not comport with other competent evidence. Due to the earlier allegations of abuse (that allegedly occurred in July 1990) being leveled against respondent, he agreed to certain restrictions during his visitation periods with the children. Under the terms of that agreement, when the two children visited him in Florida, they were to stay at his parents' home in Neptune Beach, and S. W. was to sleep in her grandparents' bedroom. Also, respondent agreed to never be alone with the children and to have one or both of the grandparents with them at all times. During her visit at Christmas 1992, S.

   W. was never alone with her father or out of sight of one of the grandparents except on one occasion when the girl accompanied her father out of the home during the day with another adult but not the grandparents. This was confirmed by uncontroverted testimony. During that same period of time, respondent slept on a couch at his parents' home, and his two children shared a bedroom directly across from his parents' bedroom. As to the alleged abuse in July 1990, the only time that the child was in Jacksonville without her brothers or mother being present was for one three day period, a Saturday afternoon to the following Tuesday. During that time, S. W. stayed at her grandparents' home while respondent spent the nights at his apartment. Respondent was working from five until midnight at a second job on Monday through Saturdays, by which time

   S. W. had already gone to bed, and he was attending classes at the University of Florida each work day until mid-afternoon when he returned to Jacksonville to go to work at his second job. On the only days he saw his daughter, a Saturday afternoon and all day Sunday, his parents were constantly present.

4. Three psychologists testified in this cause. The first, Dr. Krop, a witness for respondent, became involved with evaluating respondent's family in October 1990 after being appointed by a circuit judge to evaluate the family and make a recommendation for the childrens' primary residence and visitation arrangements. The second, Dr. Kaplan, was appointed by the same circuit judge in July 1992 to offer his recommendation as to visitation arrangements for S. W. Both psychologists interviewed the alleged victim and her family, including respondent, and became aware of the sexual abuse allegations during the course of their interviews. Doctor Kaplan, who testified on behalf of petitioner, had extremely limited experience in the area of child sexual abuse, and before this case, had never been proffered as an expert in that area. Although he was accepted as an expert in psychology, he was not accepted as an expert in child sexual abuse, and very little weight, if any, has been accorded his opinions on this subject. The third psychologist, Dr. D'Amato, a Jacksonville psychologist, and also a witness for petitioner, first interviewed the child in April 1991 after the case was referred to him by the Jacksonville state attorney, presumably in response to the allegations referred to that office by Connecticut authorities. At the request of the mother's divorce attorney, and for the purpose of "monitoring" the child on the mother's behalf, Dr. D'Amato continued to see the child on four occasions in July and August 1992 for either fifteen or thirty minute sessions when she was visiting Florida. During those sessions, the psychologist found the child to be free of anxiety, comfortable with her father, and "enjoying herself." The testimony of Dr. Harry Krop, an expert in the field of child sexual abuse and who testified on behalf of respondent, has been accepted as being the most credible and persuasive of the three psychologists who testified. Based on his interviews with the child and family, and review of videotapes, depositions and other pertinent medical records, Dr. Krop concluded that the alleged sexual abuse of S. W. cannot be validated. The undersigned concurs with this finding.

   
   

5. In summary, for the reasons cited above, it is found that respondent did not sexually abuse his daughter as alleged in the amended complaint. Therefore, the charges must fail.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties hereto pursuant to Subsection 120.57(1), Florida Statutes.

   
   

7. Because respondent's teaching certificate is at risk, petitioner bears the burden of proving the allegations in the amended administrative complaint by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

   
   

8. The amended administrative complaint charges that respondent violated Subsection 231.28(1)(c), Florida Statutes. That statute authorizes the Education Practices Commission to take disciplinary action against the license of a teacher if the teacher "has been guilty of gross immorality or an act involving moral turpitude." The amended administrative complaint is based upon allegations that respondent committed sexual acts upon his daughter, including "kissing with an open mouth, engaging in oral sex, fondling of genitals, and penile penetration of the vagina" during July 1990, and committed similar acts in December 1992. There is no question that if these allegations are proven, this conduct would equate to gross immorality within the meaning of the statute.

   
   

9. For the reasons given in findings of fact 9 and 10, respondent's objection to the admissibility as substantive evidence of the videotaped

   interview of the alleged victim by Dr. D'Amato is hereby sustained. That is to say, the circumstances surrounding the making of the alleged victim's statements are such as to indicate that they are unreliable. Subsection 90.803(23)(a), F.

   S. In addition, two other evidentiary matters should be addressed. First, contrary to the assertion in petitioner's proposed order, the undersigned twice ruled that petitioner's experts could not offer an opinion as to the identity of the alleged perpetrator. Those rulings were consistent with Glendening v. State, 536 So.2d 212 (Fla. 1988), which held that it was improper for an expert to express an opinion as to the identity of the person who committed a sexual offense. In its proposed order, petitioner contends that the Glendening case, which arose out of a criminal setting, is distinguishable for that reason from this case, and that on the basis of Section 90.703, Florida Statutes, its experts should be allowed to offer an opinion on the ultimate issue. But simply because this proceeding is quasi-penal in nature, and not criminal, is no reason to discard fundamental evidentiary principles which happen to favor an accused. More importantly, because the undersigned has accepted the expert testimony of Dr. Krop as being the most credible and persuasive on the issue of sexual abuse, to the exclusion of testimony offered by petitioner's experts, the opinion of petitioner's experts on this narrow issue is neither relevant nor convincing. Second, in its proposed order, petitioner urges for the first time that its exhibit 4 be accepted as substantive evidence. At hearing, the exhibit was offered and received as a hearsay statement under Subsection 120.58(1)(a), Florida Statutes, to supplement or explain other competent evidence, if any.

   The exhibit is a part of a report prepared by Dr. Kaplan for the circuit court custody proceeding. Petitioner erroneously contends that since Dr. Kaplan testified at hearing as to some of the matters in the report, it converts the report from hearsay to "admissible non-hearsay." But the report continues to be hearsay, or double and triple hearsay in many respects, and absent any showing that "it would be admissible over objection in civil actions," Subsection 120.58(1)(a), F. S., it retains its hearsay character and thus cannot be considered as competent evidence. See, e. g., Harris v. Game and Fresh Water Fish Commission, 495 So.2d 806, 809 (Fla. 1st DCA 1986)("the general rule is that a hearsay statement which includes another hearsay statement is admissible only when both statements conform to the requirements of a hearsay exception"). Since no other viable evidentiary theory was offered at hearing or in the proposed order to justify the admission of exhibit 4 as an exception to the hearsay rule, the request to have the report received as substantive evidence is denied. In any event, the undersigned has given little, if any, weight to the opinions of Dr. Kaplan, and even if the report was received as substantive evidence, it would have no bearing on the outcome of this case.

   
   

10. Because there is a lack of clear and convincing evidence to support the charges, the complaint, as amended, should be dismissed with prejudice.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Education Practices Commission enter a final order

dismissing the amended administrative complaint with prejudice.

DONE AND ENTERED this 12th day of November, 1993, in Tallahassee, Florida.

DONALD R. ALEXANDER

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 12th day of November, 1993.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-6173

Petitioner:

1-2. Partially accepted in finding of fact 1. 3-4. Partially accepted in finding of fact 3.

5-9. Rejected as being contrary to the more credible and persuasive evidence or hearsay which does not supplement or explain other competent, accepted evidence.

10. Partially accepted in findings of fact 10 and 12. The remainder has been rejected as being hearsay which does not supplement or explain other competent, accepted evidence.

11-13. Rejected as being hearsay which does not supplement or explain other competent, accepted evidence.

1. Rejected as being contrary to the more credible and persuasive evidence.

2. Rejected as being hearsay which does not supplement or explain other competent, accepted evidence.

16-20. Rejected as being contrary to the more credible and persuasive evidence.

21. Partially accepted in finding of fact 12.

22-24. Rejected as being contrary to the more credible and persuasive evidence. 25-26. Rejected as being hearsay which does not supplement or explain other competent, accepted evidence.

27-30. Rejected as being contrary to the more credible and persuasive evidence.

31. Rejected as being unnecessary.

32-33. Rejected as being hearsay which does not supplement or explain other competent, accepted evidence.

34. Partially accepted in finding of fact 12. 35-37. Rejected as being unnecessary.

1. Rejected as being hearsay which does not supplement or explain other competent, accepted evidence.

2. Rejected as being unnecessary or contrary to the more credible and persuasive evidence.

40-41. Rejected as being irrelevant.

Note - Where a proposed finding has been partially accepted, the remainder has been rejected as being irrelevant, unnecessary, subordinate, cumulative, not supported by the evidence, or a conclusion of law.

COPIES FURNISHED:

Robert J. Boyd, Esquire Post Office Box 26 Tallahassee, Florida 32302

Wm. Bruce Muench, Esquire

438 East Monroe Street Jacksonville, Florida 32202

Karen Barr Wilde, Executive Director Education Practices Commission

301 Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

Jerry L. Moore, Administrator Professional Practices Services

352 Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the agency written exceptions to this Recommended Order. All agencies allow each party at least ten days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the Final Order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 92-006173

Orders for Case No: 92-006173