STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GAYNELL C. ALLEN, )

)

Petitioner, )

)

vs. ) Case No. 99-1056

)

DEPARTMENT OF CHILDREN )

AND FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for Final Hearing before P. Michael Ruff, duly-designated Administrative Law Judge of the Division of Administrative Hearings. The hearing was conducted on May 25, 1999, in Jacksonville, Duval County, Florida.

APPEARANCES

For Petitioner: Gaynell C. Allen, pro se

6757 Kinlock Drive

Jacksonville, Florida 32219

For Respondent: Roger L. D. Williams, Esquire

Department of Children and Family Services Post Office Box 2417

Jacksonville, Florida 32217

STATEMENT OF THE ISSUES

The issues to be resolved in this proceeding concern whether the Petitioner should be granted an exemption from disqualification for licensure as a foster parent, which disqualification is based upon statutorily-designated criminal convictions.

PRELIMINARY STATEMENT

The Petitioner applied to the Department of Children and Family Services for licensure as a foster parent. The Petitioner was notified by that agency, in a letter dated December 29, 1998, that she was disqualified from continuing as a foster home parent. The Petitioner then requested an exemption hearing. The agency thereafter informed the Petitioner that her request for exemption was denied. The denial letter is dated January 20, 1999. On February 15, 1999, by letter, the Petitioner requested a formal administrative proceeding pursuant to Chapter 120, Florida Statutes. This hearing ensued.

The cause came on for hearing as noticed. The agency called no witnesses at the final hearing but cross-examined the Petitioner. The Petitioner testified on her own behalf and filed a composite exhibit of supporting letters, without objection, generally attesting to her character. The agency filed two composite exhibits which were admitted into evidence, consisting of the procedural history leading up to the final hearing as well as a composite of the Petitioner's arrest and conviction history.

FINDINGS OF FACT

1. Gaynell C. Allen filed an application with the Department of Children and Family Services (agency) seeking licensure as a family foster home parent. Ms. Allen was disqualified by the agency because of the commission of the offense of grand larceny (felony) on or about November 10, 1976. In connection with that offense the Petitioner was placed on

   probation for four years. The Petitioner elected to contest the denial of her application by seeking an exemption from the disqualification. Her request for an exemption and a hearing based thereon resulted in this proceeding.

2. Ms. Allen has had a number of arrests and convictions. She was convicted on December 24, 1981, of a misdemeanor, petty theft and in August of 1981 on a felony conviction of obtaining property for a worthless check. On April 4, 1982, she was convicted of misdemeanor petty theft again. She was convicted in March and November of 1985 of felony charges involving obtaining property for a worthless check and for public assistance fraud. She was again convicted on January 9, 1986 for public assistance fraud and on July 12, 1988 for misdemeanor petty theft (shoplifting). On September 1, 1989, she was again convicted for petty theft involving shoplifting; on April 23, 1994, for issuing a worthless check and on November 17, 1997, for petty theft.

3. The Petitioner put on evidence through her own testimony and through letters of fellow church members and friends attesting to her good character. This evidence was to the general effect that although the convictions had occurred she had rehabilitated her character since the last criminal incident.

   She recounted in her testimony that she was angry against society and bitter and that her thinking was distorted during the period of time that she engaged in criminal conduct due to her use of illicit drugs. She testified that she has since overcome that problem, and has become a consistent and enthusiastic, attending,

   member of Greater Macedonia Baptist Church in Jacksonville, Florida. She testified that she is now conducting her life responsibly and has gotten over her bitterness and depression and now consistently conducts her life as a responsible Christian person. She also testified that she made restitution as to all convictions. She has completed the ten-week foster parent training course and has the certificate to demonstrate that fact.

4. The Petitioner must demonstrate that her character has been rehabilitated from the state it was in during the time she committed the criminal violations referenced above. Such rehabilitation is determined based upon the circumstances surrounding each criminal incident, the period of time that has elapsed since each incident and the last incident, the nature of any harm to the victims involved and other information which can be presented which would indicate the quality of the Petitioner's character and which would provide an indication of whether the Petitioner's character and personality exhibits qualities which would pose a danger to children if they were placed in her care.

5. In this case, the Petitioner has attempted to explain away her criminal history as generally being a manifestation of her anger against society and her distorted thought patterns related to her drug abuse. Her evidence is not persuasive of rehabilitation, however. Since her first documented criminal offense in 1976 until as recently as 1997, the Petitioner has shown a repeated pattern of altercations with the law and convictions on misdemeanor and felony charges which involve

   disregard and disrespect of the rights of others. Foster parents have a responsibility to the minor children placed in their care not only for their physical well-being but also for inculcating in them respect for the law and rules of our society and of appropriate and ethical moral values. The evidence adduced does not convince the undersigned that Ms. Allen has been rehabilitated as to her character sufficiently at this time to be entrusted with the physical and moral well-being of minor children. More time is necessary and more demonstrations are required before it can be found that she indeed is no longer the person who generated the long-continued pattern of criminal convictions referenced in the above Findings of Fact.

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes, (1997).

7. The Petitioner is disputing the agency's denial of her request for an exemption from disqualification from licensure as a foster parent, in accordance with Chapter 435, Florida Statutes. The agency may grant an exemption from disqualification pursuant to Section 435.07, Florida Statutes, for felonies committed more than three years prior to the date of disqualification. Subsection 3, of that Section, provides that, in order for a licensing agency to grant an exemption to the employee, it must be demonstrated by clear and convincing evidence that rehabilitation has occurred, with particular regard

   to the circumstances surrounding the criminal incident; the time period elapsed since the incident; the nature of harm to the victim; and any other information indicating whether the employee would present a danger to children placed in his or her care.

8. In the instant case, as referenced in the above Findings of Fact, the Petitioner’s explanation attempting to show her rehabilitation from the besmirchment of her integrity caused by past criminal activity is insufficient to justify granting an exemption from the disqualification imposed under her circumstance by the above statutory authority. Indeed, as referenced in the above Findings of Fact, foster parents have a responsibility not only for the physical well-being of minor children placed in their care but also for their moral training and ethical value system. The evidence presented does not convince the undersigned that Ms. Allen has yet been sufficiently rehabilitated so as to establish that she can be a responsible mentor for children placed in her care, in terms of consistently, by teaching and by example, instilling in them an appropriate sense of ethics, moral values and respect for the laws of society.

RECOMMENDATION

In consideration of the foregoing Findings of Fact and Conclusions of Law, it is,

RECOMMENDED:

That the Department of Children and Family Services enter a final order denying the petition in its entirety.

DONE AND ENTERED this 5th day of August, 1999, in Tallahassee, Leon County, Florida.

P. MICHAEL RUFF 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 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 5th day of August, 1999.

COPIES FURNISHED:

Gaynell C. Allen 6757 Kinlock Drive

Jacksonville, Florida 32219

Roger L. D. Williams, Esquire Department of Children

and Family Services Post Office Box 2417

Jacksonville, Florida 32217

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: 99-001056

Orders for Case No: 99-001056