STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROGER GADSON, )

)

Petitioner, )

)

vs. ) Case No. 98-2780

)

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Respondent. )

) HOPE GADSON, )

)

Petitioner, )

)

vs. ) Case No. 98-2781

)

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was held by the Division of Administrative Hearings, before Administrative Law Judge, Daniel M. Kilbride, in Orlando, Florida, on October 15, 1998.

APPEARANCES

For Petitioners: Roger Gadson, pro se

Hope Gadson, pro se 2849 Mayer Street

Orlando, Florida 32806

For Respondent: Carmen Sierra, Esquire

Department of Children and Family Services

400 West Robinson Street Suite S-1106

Orlando, Florida 32801

STATEMENT OF THE ISSUE

Whether the Petitioners have presented clear and convincing evidence that they are of good moral character so as to receive an exemption from disqualification from licensure as a family foster home, pursuant to Section 435.07(3), Florida Statutes (1997).

PRELIMINARY STATEMENT

This proceeding is the result of Petitioners' request for an exemption from disqualification which was denied by the Respondent, by letters dated May 8th and 12th, 1998, respectively. Thereafter, Petitioners requested a formal hearing before the Division. Petitioners are seeking an exemption so that they may be licensed by Respondent as foster parents.

This matter was referred to the Division of Administrative Hearings and set for hearing. At the hearing Petitioners testified in their own behalf and presented the testimony of Joseph Anderson, a friend. Respondent cross-examined the witnesses, presented no additional witnesses, and offered two composite exhibits of the arrest and disposition record of the Petitioners in evidence.

The transcript of the hearing was filed on November 12, 1998. Respondent filed proposed findings of fact and conclusions of law on November 24, 1998. Petitioners have not filed a

proposed order as of the date of this order.

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

FINDINGS OF FACT

Hope Gadson (Case No. 98-2781)

1. Hope Gadson (Petitioner) has an extensive criminal history beginning approximately 12 years ago. Under Florida law, she is considered a habitual offender. Beginning in 1986, her criminal record includes seven convictions for worthless checks and petit theft, three convictions for drug possession and sale, and at least two convictions for prostitution. Four of these convictions are disqualifying convictions. In 1992, 1993 and 1994, Petitioner was convicted on felony drug charges. She was also charged with two probation violations in the intervening period. Petitioner's last conviction in 1994 resulted in jail time to run concurrently with the 1993 case as a violation of probation.

2. Petitioner was arrested August 1994 and remained in jail until December 1994 when she was placed on work release. In June 1995, Petitioner was placed on house arrest for approximately two months.

3. As a condition of her confinement and also as a condition of her work release, Petitioner received drug treatment in jail. Petitioner attended Narcotics Anonymous (NA) meetings

   during the time she was on work release from December 1994 to March 1995.

4. Petitioner also has a disqualifying conviction for prostitution in 1994. Petitioner had at least three other arrests for prostitution that she admitted to having committed. Petitioner denies one arrest that she stated was based on mistaken identity. Petitioner states that the prostitution charges are directly related to the drug charges.

5. Prior to her time in jail, Petitioner's long-term drug abuse resulted in the termination of her parental rights on four of her children. Of the four children that presently live with her, only the youngest child has lived with her since birth. Four of the children were drug-dependent newborns, and as a result of this finding, were removed from her custody. Except for a short time that a court order was in place, Petitioner did not provide support for any of her children during that period.

6. Recently, her sixteen-year-old daughter, and her nine- year-old son have moved back in with her and her husband. The sixteen-year-old has not lived with her since she was three or four years old and the nine year old has not lived with her since he was one year old. The nine-year-old remains under the protective supervision of the juvenile court.

7. Since her release from house arrest, Petitioner has made a remarkable turnaround in her life. Petitioner has been living drug-free for over two years. She has taken responsibility for

   her life and assembled the duties of being a responsible wife and mother. Petitioner has been employed as a secretary at a company that went out of business; as a sales person for AT&T and Bell South Mobility; and as temporary service personnel.

8. Petitioner is a high-school graduate and plans on returning to school at Orlando Vo-Tech to learn more about computers.

   
   

9. Petitioner has been married to Roger Gadson since February 1996. They have one son by this marriage. Besides Petitioner's other three children, they also have the child of her sister living with them. Random drug tests are performed on Petitioner on a monthly basis because one of her own children and the child of her sister are under protective supervision. Petitioner did not provide proof of the results of the drug tests.

10. Regarding drug treatment, Petitioner does not believe that addiction to drugs is an ongoing condition. She feels addiction is in your mind and can be overcome with determination and support. She has not continued to attend NA meetings since her release.

11. John Anderson testified on behalf of Petitioner. He became her friend while she was on drugs. He used to check on Petitioner and counsel her to make a better life for herself. He states he has seen the good care she gives to the children in her

    case.

    
    

    Roger Gadson (Case No. 98-2780)

    
    

12. Roger Gadson (Petitioner II) was disqualified for a conviction for Grand Theft in 1988 and a conviction for Dealing in Stolen Property in 1991. He was sentenced to three years probation and sixty days in jail for the 1988 conviction. Petitioner II served approximately two and one half years in prison for the 1991 conviction. In August 1994, Petitioner II was released from prison and placed on work release.

    
    

13. Petitioner II also had several misdemeanor and DUI convictions dating back to 1983.

14. He has not had any criminal charges placed against him since his release in 1994.

15. Since his release from prison, Petitioner II has been employed at Central Auto Parts. The company was aware of his criminal record when they hired him. He has worked his way up to Systems Warehouse Manager.

16. He was married in February 1996, to Hope Gadson and has one child from that marriage. He has two children from a prior marriage and pays child support for their care.

17. John Anderson also testified on Petitioner II's behalf.

    
    

18. Petitioner II has turned his life around and his been a responsible citizen, husband and father since 1994.

    CONCLUSIONS OF LAW

19. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause, pursuant to Sections 120.569, 120.57(1) and 435.07(3), Florida Statutes.

20. Persons subject to background screening pursuant to Section 435.04, Florida Statutes, must not have been found guilty of, regardless of adjudication, or entered a plea of nolo contendere or guilty to, any of a series of offenses, including conviction of a felony under Chapter 893, relating to drug abuse prevention; a conviction under Chapter 796, relating to prostitution; and a felony conviction under Chapter 812, relating to theft and dealing in stolen property. Conviction of such an offense is a bar to employment or licensure in positions of trust or responsibility. Section 409.175(14)(a), Florida Statutes.

21. Pursuant to Subsection 435.07(1)(a), Florida Statutes, the appropriate licensing agency may grant any employee an exemption from disqualification for felonies committed more than three years prior to the date of disqualification.

22. The licensing agency may grant to any employee otherwise disqualified from employment an exemption from disqualification from working with children or disabled adults under the following conditions:

    The employee must demonstrate by clear and convincing evidence that the employee should not be disqualified from employment.

    Employees seeking an exemption have the burden of setting forth sufficient evidence of rehabilitation, including, but not limited

    to, the circumstances surrounding the criminal incident for which the exemption is sought, the time period that has elapsed since the incident, the nature of the harm caused to the victim, and the history of the employee since the incident, or any other evidence or circumstances indicating that the employee will not present a danger if continued employment is allowed.

23. The burden of proof to demonstrate rehabilitation is on the Petitioners. The Petitioners must show by clear and convincing evidence that they should be granted an exemption from disqualification from employment or licensure. The Petitioners have not satisfied that burden of proof.

    As To Hope Gadson

    
    

24. Although Petitioner has made remarkable progress in the last two years, she has more than an isolated incident of drug possession or use. Petitioner has committed numerous offenses over a period of years that can be attributed to her severe drug addiction, including prostitution to finance her habit. Petitioner's drug use terminated involuntarily upon incarceration in August of 1994. She was released from house arrest on or about August 1995. Petitioner has been submitting regularly (monthly) to random drug tests ordered by the Juvenile Court in the case of her own children and in the case of the other children she has had in her home.

25. Barriers to continued drug use are not completely self- imposed. Petitioner has stated her determination to remain drug free but has expressed negative views of continuing treatment for

    drug addiction. Were it not for court-ordered drug tests, Petitioner made it clear that she would not continue with any form of treatment. In fact, Petitioner does not appear to have realistic insight into the truly pervasive nature of drug addiction.

26. At the formal hearing, Petitioner did not address the harm she has caused to her children, who are the ultimate victims of her drug use and criminal lifestyle. Petitioner did not voluntarily address the fact that three of her children were drug dependent newborns and had the accompanying medical problems associated with that syndrome.

27. Petitioner has very little work experience outside of the home, as she was unemployed until 1995 when she was placed on work release. In the past three years, each job has been of short duration, either because the company went out of business

    or the job itself was temporary. This does not constitute sufficient evidence of stability on which to base an exemption.

28. The Juvenile Court, in the case of the child who just recently came to live with her, also found that she had made significant changes in her life. As a consequence, Petitioner was awarded custody of her child. However, the court still found it necessary to order protective supervision to ensure the safety of the child.

29. Although significant progress has been made, Petitioner needs to establish a longer history of personal and professional stability. She also needs to accept responsibility for the harm the drug addiction caused to her and to her children in the past. Petitioner would also benefit from seeking the necessary drug assistance and support to safeguard against a return to drug use, prior to applying again for licensure.

    As to Roger Gadson

    
    

30. Petitioner II had a criminal record that began in 1983 and ended with his release from prison in August 1994. Since his time in prison, Petitioner has established a stable professional and personal life. Although Petitioner has made significant and positive changes in his life, the time since his release from prison has been relatively short. He provided little, if any, evidence of the circumstances surrounding the incident and the nature of harm to the victims.

31. Petitioner II has applied to be a foster parent with

his wife. Foster parents provide 24-hour care with very little supervision. The difficulties and stress of raising foster children, as expressed by Petitioner II himself, requires an individual who has exhibited a longer history of stability, lack of criminal involvement and training in living with and assisting a former drug dependent person that would be placed in his care before an exemption could be recommended.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that Petitioners' request for exemption from disqualification for licensure as a family foster home be DENIED.

DONE AND ENTERED this 8th day of December, 1998, at Tallahassee, Leon County, Florida.

DANIEL M. KILBRIDE

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 8th day of December, 1998.

COPIES FURNISHED:

Roger Gadson Hope Gadson

2849 Mayer Street

Orlando, Florida 32806

Eric D. Dunlap, Esquire Department of Children and

Family Services Suite S-1106

400 West Robinson Street Orlando, Florida 32801

Gregory D. Venz, Agency Clerk Department of Children and

Family Services Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

John S. Slye, General Counsel 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 agency that will issue the final order in this case.

Docket for Case No: 98-002780

Orders for Case No: 98-002780