STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND ) FAMILY SERVICES, )

)

Petitioner, )

)

vs. ) Case No. 97-5477

) SYLVIA AND ROBERT MITCHELL, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on May 5, 1998, in Leesburg, Florida, before Donald R. Alexander, the assigned Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: William L. Grossenbacher, Esquire

1601 West Gulf Atlantic Highway Wildwood, Florida 34785

For Respondents: Robert Mitchell, pro se

Sylvia Mitchell, pro se

216 Tanglewood Drive Leesburg, Florida 34748

STATEMENT OF THE ISSUE

The issue is whether Respondents' foster home license should be revoked because Respondents allegedly committed negligent and intentional acts materially affecting the health and welfare of foster children entrusted to their care.

PRELIMINARY STATEMENT

This matter began on October 6, 1997, when Petitioner, Department of Children and Family Services, issued a letter revoking Respondents' foster home license on the ground they allegedly engaged in negligent and intentional acts materially affecting the health and welfare of F. P., a foster child entrusted to Respondents' care. Respondents denied the allegations and requested a formal hearing under Section 120.569, Florida Statutes, to contest the charges. The matter was referred by Petitioner to the Division of Administrative Hearings on November 20, 1997, with a request that an Administrative Law Judge be assigned to conduct a formal hearing. By Notice of Hearing dated January 26, 1998, a final hearing was scheduled on May 5, 1998, in Leesburg, Florida. On May 1, 1998, the case was transferred from Administrative Law Judge S. Diane Cleavinger to the undersigned.

At final hearing, Petitioner presented the testimony of Cynthia Ausby, a child protective investigator. Respondents testified on their own behalf. No exhibits were offered.

There is no transcript of hearing. Proposed findings of fact and conclusions of law were due not later than May 20, 1998. None were filed by either party.

FINDINGS OF FACT

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

1. When the events herein occurred, Respondents, Sylvia and

   Robert Mitchell, held a foster home license issued by Petitioner, Department of Children and Family Services (DCFS). The date of issuance, expiration date, and number of the license are not of record. Respondents operated a foster home with at least one foster child at their residence located at 1907 Helms Avenue, Leesburg, Florida.

2. In late July or early August 1997, a DCFS child protective investigator, Cynthia Ausby, received a copy of an abuse report containing, among other things, allegations of illicit conduct by Respondents with F. P., a female foster child then living in Respondents' home. The abuse report was not made a part of this record, and thus the report's identification number and classification of allegations are not of record. Neither does the record indicate if the alleged perpetrators requested a hearing to contest the report, and if so, the outcome of that proceeding.

3. Based upon an investigation by Ausby, which included interviews with F. P., Respondents, and certain "other people," DCFS issued a charging document in the form of a letter dated October 6, 1997, in which it advised Respondents that their foster home license "is being revoked as of the date you receive this letter" on the ground "a foster child in [their] care, was negligently or intentionally allowed to have contact with an adult relative of [Respondents], even after [they] knew or should have known that the child and [their] relative were engaging in

   inappropriate sexual behavior." The letter added a charge that "the foster child reports having engaged in inappropriate activities of a sexual nature with Mrs. Mitchell or in her presence." The issuance of the letter prompted Respondents to request a formal hearing contesting the proposed action. While the parties did not specifically say so, based upon the contents of the letter, the undersigned presumes that Respondents' license is inoperative pending the outcome of this proceeding.

4. The foster child in question, who is now "around thirteen or fourteen years old," did not appear and testify at hearing. Therefore, any statements made by her to the investigator are hearsay in nature and cannot be used as the basis for a finding of fact. The same is true as to all statements made to her by "other people" during the course of the investigation.

5. At hearing, both Respondents vigorously denied all allegations of inappropriate conduct with the child, or with having knowledge that the foster child was engaged in "inappropriate sexual behavior" with any other persons. In the absence of any competent, contradictory evidence, their testimony has been accepted. This is especially true since Ausby herself acknowledged that the complaining witness, F. P., was "unreliable" in terms of veracity, and that F. P. came up with the allegations only after she got "upset" with Mrs. Mitchell.

6. It is true that Respondents made certain admissions to

   Ausby during the course of the DCFS investigation, some of which were inconsistent with each other's statements. While these statements are admissible as an exception to the hearsay rule, at no time did Respondents ever admit that the allegations in the charging document were true. Thus, Respondents' admissions do not substantiate the allegations in the letter.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to Sections 120.569 and 120.57(1), Florida Statutes (1997).

8. By its complaint, Petitioner seeks to revoke Respondents' foster home license on the ground Respondents committed "an intentional or negligent act materially affecting the health or safety of the children in the home or agency" within the meaning of Section 409.175(8)(b)1., Florida Statutes (1997). As such, Petitioner carries the burden of proving the allegations in the charging document by clear and convincing evidence. See, e.g., Coke v. Dep't of Children and Family Services, 704 So. 2d 726 (Fla. 5th DCA 1998).

9. There is less than clear and convincing evidence to sustain the allegations that Respondents allowed a relative to engage "in inappropriate sexual behavior" with a foster child, that they knew or should have known of such activities, and that

   the foster child "engaged in inappropriate activities of a sexual nature with Mrs. Mitchell or in her presence," as alleged in the complaint. This being so, the "complaint" should be dismissed, with prejudice, and the foster home license should be reinstated.

10. In reaching this conclusion, the undersigned has declined to make findings of fact in Petitioner's favor which are based primarily, if not wholly, on hearsay declarations. See Section 120.57(1)(c), Florida Statutes (1997); Harris v. Game and Fresh Water Fish Comm., 495 So. 2d 806, 808 (Fla. 1st DCA 1986) ("in administrative hearings, hearsay evidence may be used for the purpose of supplementing or explaining other evidence, but it shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions").

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Department of Children and Family Services enter a Final Order dismissing all charges against Respondents and reinstating their foster home license.

DONE AND ENTERED this 21st day of May, 1998, in Tallahassee, Leon County, Florida.

DONALD R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 21st day of May, 1998.

COPIES FURNISHED:

Gregory D. Venz, Agency Clerk

Department of Children and Family Services Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

William L. Grossenbacher, Esquire 1601 West Gulf Atlantic Highway Wildwood, Florida 34785

Sylvia and Robert Mitchell

216 Tanglewood Drive Leesburg, Florida 34748

Richard A. Doran, Esquire

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 Department of Children and Family Services.

Docket for Case No: 97-005477

Orders for Case No: 97-005477