AARON B. HODGES, )
vs. ) Case No. 97-5617
A hearing was held in this case in Bartow, Florida, on June 23, 1998, before Arnold H. Pollock, an Administrative Law Judge with the Division of Administrative Hearings.
The issue for consideration in this case is whether Petitioner should receive an exemption from disqualification from caring for children, under the criteria set out in Chapter 435, Florida Statutes.
By letter dated November 13, 1997, Sue B. Gray, the District 14 Administrator for the Department of Children and Family Services (Department), advised the Petitioner that his request for exemption from disqualification from dealing with children had been denied because he failed to show clear and convincing evidence that he had been sufficiently rehabilitated. Petitioner subsequently requested formal hearing in this matter and this hearing followed.
At the hearing, Petitioner testified in his own behalf and presented the testimony of Susan E. Hodges, his wife; Melvin T. Richardson, a child protective investigator with the Department; Jessica L. Happle, his step-daughter; James R. Johnson, a minister and licensed pastoral counselor; Bonnie Sue Mulvahill, a former employee; Kathy J. Murphy, foster parent of the sister of the child for whom Petitioner seeks to be a foster parent; and Jennifer G. Smith, Petitioner’s sister-in-law. Petitioner also submitted Petitioner’s Exhibits A and B.
Respondent presented the testimony of Stephen T. Barnett, a detective with the Polk County Sheriff’s Office; Malcolm L. Miller, screening coordinator for the Department’s District 14; Robert E. King, a management review specialist and a member of the District 14 screening committee; and Barbara E. Sykes, a family services counselor and home finder for District 14.
Respondent also introduced Respondent’s Exhibits 1 through 3. Counsel for Respondent requested Section 409.175 and Chapter 435,
Florida Statutes, be officially recognized. Counsel for
Petitioner did not object and the cited legislative provisions were officially recognized.
No transcript of these proceedings was furnished. Counsel for both parties made oral argument at the hearing, but neither submitted Proposed Findings of Fact or written argument.
At all times pertinent to the issues herein, the Respondent, Department of Children and Family Services, had the responsibility for licensing and overseeing the operation of foster care of children in this state, and, under the provisions of Chapter 435, Florida Statutes, of evaluating and ruling on requests for exemption from disqualification to serve as foster parents submitted by individuals otherwise disqualified from performing that function.
Petitioner, Aaron B. Hodges, is currently 29 years old. His wife, Sue, is 38. They have been married since he was 21. The couple has a child of their own, and Mrs. Hodges has an 18 year-old daughter by a previous marriage. On November 20, 1995, the family resided at 4000 North Combee Road in Lakeland, Florida. They operated a family business at that address, in which both participated; a public ranch at which they offered farm parties, trail rides, and wedding receptions; and provided facilities for other similar events. It was a high-stress operation, which occupied the greatest part of the time of both individuals seven days a week.
As a result of the constant stress, and, as a
contributing factor, the relative immaturity of Petitioner, the couple had undergone a period of domestic strife which culminated in several serious arguments. None of those had resulted in physical contact between the parties. However, on November 20, 1995, the couple was involved in another dispute, as a result of which Petitioner was leaving the family home. He was threatening to take with him some of the parties’ personal property. Because a wedding reception was scheduled for that weekend, Mrs. Hodges objected to his taking the stereo, and strong words were passed between the parties. Mrs. Hodges’ daughter inserted herself into the dispute. Petitioner lost his temper and attempted to force his way back into the house. When he did so, the door struck Mrs. Hodges and she received an abrasion to the ear. In addition, her daughter tried to interpose herself between Petitioner and her mother. In response, Petitioner pushed her backward which resulted in the daughter stepping off the porch, which was one step above the ground. She did not fall, nor was she injured as a result of the incident.
Nonetheless, the sheriff’s office was called twice that evening. The first time a deputy responded, Petitioner was not there and the deputy spoke with the wife and daughter outside the residence. At that time, Deputy Barnett observed some redness to the wife’s ear, and he requested the two women write out their statements as to what happened. The statements written by the two women somewhat exaggerated the incident as a result of
Mrs. Hodges’ desire to get Petitioner out of the house. At
hearing, both women recanted the more serious aspects of their previous allegations, admitting that they had made their statements present a picture of Petitioner’s actions which was far worse than reality. Neither mother nor daughter had or would recount a firm recollection of the incident by the time of hearing, insisting they could not remember the details. Both were sure, however, that neither was hurt nor was either afraid for their physical safety as a result of the Petitioner’s actions. Both described Petitioner as a non-violent person who, at worst, suffered from an immature reaction to stress.
After taking the statements of the two women, Deputy Barnett departed the residence but returned somewhat later when Petitioner was present. At that time, based on his prior interview with Mrs. Hodges and her daughter, the deputy arrested Petitioner for battery which consisted of striking Mrs. Hodges and grabbing her about the neck, and throwing a roll of tape at the daughter, in addition to pushing her off the porch. Barnett acted in a manner consistent with a sheriff’s department policy of arresting any perpetrator of an incident of domestic violence. At the time of the arrest, Petitioner was not hostile to the deputy and was cooperative. The story he told the deputy at the time was consistent with what Mrs. Hodges had told the deputy previously. Petitioner stated that his wife had pointed a rifle at him. In reality, though a rifle was used as a weapon by
Mrs. Hodges, she did not point the muzzle at Petitioner. She grabbed it by the barrel and used it as a club.
Taken together, it would appear that the altercation transpired as was initially reported to the deputy. No doubt Petitioner was aroused and threatened as well as committed a battery on his wife. It is also found that his actions toward her daughter resulted in the girl’s stepping backward off the porch.
Petitioner was kept in jail overnight and subsequently released. At his arraignment in County Court on December 4, 1995, Petitioner, appearing without counsel, pleaded guilty to a misdemeanor charge of domestic violence (spousal battery). He was adjudicated guilty and placed on probation for a period of one year. A condition of his probation was that he attend a domestic violence counseling program, perform 30 hours of community service, and pay a fine of $156.50. Petitioner successfully completed all the terms of his probation.
The counselor who conducted the court-ordered domestic violence course, James N. Barnett, in a letter dated October 30, 1997, described Petitioner as an excellent participant who was regular in his attendance and attentive in every way. Based on his personal interaction with Petitioner, Mr. Barnett found him to be concerned, sincerely motivated, and of excellent character.
Petitioner and his wife have now applied to be foster parents for a young boy, V., for whom Mrs. Hodges has been a foster parent in the past. The child has stayed in touch with her since he was returned to his parents, but he is now back in foster care, and both the child and his mother want him placed in
the Hodges’ home. Even after Petitioner’s arrest and conviction, and with the knowledge thereof of the Department, the child was placed with the Hodges in a non-relative placement for six months. The Department did not question the placement nor indicate, at that time, that Petitioner’s conviction was a problem.
However, after the six months, Mrs. Hodges had a miscarriage and V. started acting up, and Mrs. Hodges tried to get him placed in the Baptist Children’s home, thinking that was a good place for him. However, V. was placed in a home for delinquent children instead, and when Mrs. Hodges tried to get him back, she was told she would have to apply to be a foster parent. When she and Petitioner did so, they were rejected because of Petitioner’s conviction.
Mr. Richardson, a child protective investigator for the Department, met Petitioner and his wife approximately a year to a year and a half ago as a result of their care of a minor child client of his, V., for whom they provided care in the past. He found their home to be an excellent environment and a good place for the child, who was happy there. The child had bonded with both Petitioner and his wife, and Richardson is of the opinion that it would be appropriate for the child to be placed there again.
On the other hand, Barbara Sykes, a family services counselor for the department and home finder for District 14, did a home study of the Hodges' home for a specific child, presumably
V., at the request of the child’s foster care counselor. As a part of her investigation, she interviewed both Mr. and
Mrs. Hodges. When she went to the home, Ms. Sykes was not aware of the charges of domestic violence. However, the Hodges were very forthcoming in talking about it when it came up.
The Department is very careful regarding issues of domestic violence, and foster children are removed from a foster home when the issue comes up. Based on the information presented to her, Ms. Sykes concluded there were some unresolved questions as to what actually happened on the night of November 20, 1995. Because of this, she did not complete the home study; she was of the opinion that the issue of an exemption had to be resolved before she could complete it. Nonetheless, based on what she saw and heard at that time, she concluded the home of Petitioner and his wife was not a suitable placement.
However, in addition to his attendance in the court- ordered domestic violence program, Petitioner also sought counseling with James R. Johnson, his friend and a minister also licensed as a pastoral counselor, who worked with Petitioner in the area of anger management. As a result of their ongoing relationship, Reverend Johnson has come to the opinion that Petitioner has grown and bettered himself and has learned how to handle stress and anger without reacting to it with impulse. He noted that Petitioner is very good with children and he would have no hesitation trusting Petitioner with the care of his own children if he and his wife were to go out of town. This good
opinion of Petitioner, and the conviction that he is very good with and no danger to children, is shared by Ms. Mulvahill, a former employee of the Hodges; Mrs. Hodges’ sister, Mrs. Smith; and Mrs. Murphy, the foster parent to V.’s sister. They all are of the opinion that Petitioner has grown and learned how to control stress and anger and were impressed with the rapport he develops with children and the respect they show him.
Because Petitioner’s conviction of the misdemeanor domestic violence charge disqualifies him from being licensed as a foster parent, or of working with foster children, a screening committee meeting was held under the provisions of Section 435.07, Florida Statutes, to determine if Petitioner had demonstrated his rehabilitation to a degree sufficient to support granting him an exemption from disqualification. The committee was chaired by Malcolm Miller, a Department screening coordinator. At the meeting, Mr. Miller was troubled because he did not see what Petitioner wanted to present. Petitioner brought with him only isolated bits and pieces of the documentation sought. In addition, Petitioner appeared reticent and reluctant to discuss the matters at issue to the point some committee members questioned his honesty. Mrs. Hodges seemed to speak for him. At hearing, Petitioner admitted that his presentation at the committee meeting was not fully enlightening, but he claimed the entire process was a humiliating experience for him and intimidated him. This is understandable. He was far more articulate at the instant formal hearing, and presented a
favorable impression. It is not difficult to see where the committee could have come to the conclusion that Mrs. Hodges spoke for her husband. Even at the more formal instant hearing, she was not at all reluctant to speak out.
The committee asked many questions of Petitioner that Mr. Miller felt were not satisfactorily answered. On the issue of the previous arrests, Petitioner denied any, when in reality his record shows an arrest in 1991 for disorderly conduct. While there was no substantial evidence to show that the instant (1995) incident was alcohol-related, the committee seemed concerned that alcohol was also a problem for Petitioner. In substance, the committee was of the opinion there was a risk this type of conduct could occur again, and the length of time since the incident, only slightly over two years, was not sufficient to support the granting of an exemption. Generally, the Department requires a period of five years to demonstrate rehabilitation.
Mr. King, also a member of the committee, concluded that Petitioner had not had enough counseling for domestic violence to indicate rehabilitation, even though Petitioner had completed the court requirements. Counseling, not elapsed time, was the overriding consideration for Mr. King.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Section 120.57(1), Florida Statutes.
Section 435.02(1), Florida Statutes, relating to
employment screenings required by law, defines an employee as “any person required by law to be screened pursuant to the provisions of this chapter.” Section 435.07(1)(e) of the statute permits any person convicted of having committed an act or acts of domestic violence to be granted an exemption from employment disqualification. However, at subsection (3) of this Section, the statute provides that “in order for a licensing department to grant an exemption to any employee, the employee must demonstrate by clear and convincing evidence that the employee should not be disqualified from employment."
Section 409.175(2)(k), Florida Statutes, defines screening as “. . . the act of assessing the background of personnel and includes, but is not limited to, employment checks as provided in Chapter 435. . . .” Petitioner’s conviction of spousal abuse requires him to be screened according to Level 2 screening standards as set forth in Chapter 435.
Though the Department applies a five-year period in its evaluation of rehabilitation, no evidence was presented to show this is mandated by statute or written agency rule. In the instant case, a period of only two years has elapsed since the Petitioner was found guilty of spousal abuse. Consistent with the agency’s requirement to screen applicants for exemption from disqualification, the screening committee which reviewed Petitioner’s request for exemption determined both that sufficient time had not elapsed since his conviction, in accordance with its unwritten policy; and that he had not shown
sufficient rehabilitation, as evidence by his unconvincing appearance before the committee. That determination occasioned the instant hearing.
This hearing, however, is not a review of the agency’s determination but is a de novo determination based on the evidence presented by the parties at the hearing.
(Section 120.57(1)(i), Florida Statutes). In this hearing, Petitioner bears the burden of establishing his rehabilitation by clear and convincing evidence.
Notwithstanding the almost exculpatory nature of the testimony of Mrs. Hodges and Ms. Happle, the evidence presented at hearing, alieunde the conviction, indicates, and it was so found, that Petitioner was guilty of battery of both women. However, the nature of the battery and the circumstances which led up to it do not indicate it was a serious incident. Instead, this is a situation where an individual who was “stressed out” got into a minor altercation with his wife, which was aggravated by the intercession of her nearly adult daughter. Mrs. Hodges was not actually struck by Petitioner but by the door which he attempted to push open over her objection. The contact with
Ms. Happle was through the throwing of a roll of tape and a push back which caused her to step off the one-step-high porch.
Neither contact resulted in injury greater than an abrasion to the ear of Mrs. Hodges, resulting when the door struck her.
Consistent with the requirements of the court, Petitioner successfully completed the counseling and course
material required of him and very favorably impressed the counselor with his attitude. Further, without any requirement to do so, he also engaged in additional counseling with his minister, who thinks so highly of Petitioner he would have no compunction in leaving his own children in Petitioner’s care.
Even more, independent evidence from a Department child protective investigator, who evaluated Petitioner and his home environment relating to a placement for the foster child in question, indicates Petitioner’s home would be an appropriate placement. The opposite finding by Ms. Sykes, the Department’s home finder, is not considered significant since it was based on far less information than that of the investigator. Further, though admittedly biased in Petitioner’s favor, both his former employee and his sister-in-law favorably testify as to his rehabilitation. All those individuals who testified in Petitioner’s behalf are convinced that he has matured in the time which has elapsed since the incident in question. Alcohol is not a problem.
Taken together, in the absence of any independent evidence indicating a lack of rehabilitation, the evidence presented clearly indicates that, notwithstanding the lapse of only a two-year period since his conviction, Petitioner has been rehabilitated and could safely be granted a license as a foster parent.
Law, it is recommended that the Department of Children and Family Services enter a Final Order granting Aaron B. Hodges an exemption from disqualification from serving as a foster parent.
DONE AND ENTERED this 21st day of July, 1998, in Tallahassee, Leon County, Florida.
ARNOLD H. POLLOCK
Filed with the Clerk of the Division of Administrative Hearings this 21st day of July, 1998.
John S. Slye General Counsel
Gregory D. Venz Agency Clerk
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.
