STATE OF FLORIDA

DEPARTMENT OF CHILDREN AND FAMILY SERVICES

ANNIE BELL,

Petitioner, CASE NO. 99-2329

RENDITION NO. DCF-00-105-FO

v.

DEPARTMENT OF CHILDREN AND FAMILY SERVICES,

Respondent.

/

FINAL ORDER REVERSING CONCLUSION OF LAW REGARDING CLEAR AND CONVINCING EVIDENCE AND DENYING APPLICATION FOR EXEMPTION

THIS CAUSE is before me for entry of a Final Order based on a Recommended Order issued by an Administrative Law Judge assigned by the Division of Administrative Hearings. It concerns a petitioner who is currently disqualified by law from working with children or disabled or elderly adults.

By law, disqualification is the result of a petitioner's past behavior, which constituted either a crime or a finding of delinquency or the commission of an act of domestic violence.

Alternatively, the disqualification may be the result of the existence of a confirmed report naming a petitioner as the perpetrator of the abuse, neglect or exploitation of a vulnerable adult. See Section 435.07, Florida Statutes.

Pursuant to Section 435.07(3), a person who is disqualified from working with children or disabled or elderly adults may seek an exemption from the disqualification. To secure the exemption, which would allow a petitioner to work with children or elderly or disabled adults, he or she must show, by clear and convincing evidence, that the disqualification should be set aside. To show that the disqualification should be set aside, the burden of proof is on a petitioner to set forth sufficient evidence of rehabilitation. Such evidence includes, but is not limited to, the circumstances surrounding the event, the time period that has elapsed since the event, the nature of the harm that the petitioner caused to the victim, and the history of the petitioner indicating that the petitioner will not present a danger to the vulnerable population whose welfare and well-being are, by law, in the hands of the Department to protect.

In the instant case, the Recommended Order concludes that the petitioner presented such clear and convincing evidence. I disagree and hereby reject the final sentence of paragraph 26 of the Recommended Order. The Petitioner in the instant case did not meet the standard of proof required to show entitlement to an exemption under Section 435.07(3), Florida Statues.

It is clearly within the Department's discretion whether to grant an exemption. Section 435.07(1), Florida Statutes.

Indeed, in Calvin Phillips v. Department of Juvenile Justice, infra, the District Court of Appeal for the Fourth District of Florida held that the agency was under no obligation to grant an exemption even if Phillip's presentation constituted clear, convincing and unrefuted evidence of rehabilitation. (Emphasis supplied).

In the Phillips case, Phillips supported his application for an exemption with a written explanation of the disqualifying incidents, letters of recommendation from a variety of organizations and individuals, proof of training that he had received, and a psychological evaluation. The various letters of recommendation agreed that Phillips had changed, that he worked to rehabilitate youth into productive members of society, and that he was loyal, dependable, trustworthy, caring and concerned. The psychological evaluation stated that, in terms of violence and aggression, Phillips had "only. . .one" episode of violence in his life, as evidenced by the domestic battery that constituted one disqualifying event, and that he had successfully completed his probation and anger management classes. The report also stated that Phillips had a long-standing history of working with children and was well-respected by his peers and colleagues.

The agency in the Phillips case presented nothing to counter Phillip's evidence. Still, the Court, relying on Thomas v. Department of Juvenile Justice, 730 So.2d 809 (Fla. 3d DCA 1999), ruled that it ". . . may not substitute its judgment for that of the agency on an issue of discretion." Calvin Phillips v. Department of Juvenile Justice, 736 So2d 118, 119 (Fla. 4th DCA 1999).

If Calvin Phillips, with all his evidence, was not entitled to an exemption, then clearly neither is the Petitioner in the instant case.

In 1993, Ms. Bell was arrested for aggravated child abuse.

The State Attorney reduced the charge against her to a first- degree misdemeanor of child abuse. Ms. Bell pled nolo contendere, and the court withheld adjudication of guilt and placed Ms. Bell on supervised probation for six months. As part

of the probation, Ms. Bell was required to complete a parenting program and pay court costs and fines.

The facts of the child abuse charge were as follows. After hearing about her grandson's misbehavior at school, Ms. Bell "whipped" the child with a telephone cord. As the Administrative Law Judge found, the harm caused to the victim was "significant.

. . . The whipping left two open wounds above and below the left knee and a raised looped bruise on the leg."

More recently, Ms. Bell sought a license from the Department to operate a day care center. Her application was denied because of the disqualifying misdemeanor. Her evidence at hearing consisted of her own testimony, the testimony of two people who routinely leave their children in Ms. Bell's care, and Ms. Bell's daughter, who is also the mother of the child who was whipped. The witnesses testified to Ms. Bell's care of the children they entrust to her, and Ms. Bell testified that she's taken some child care courses. No other evidence or rehabilitation was submitted.

As found by the Administrative Law Judge, Ms. Bell feels remorse for the whipping incident which occurred in 1993.

Unfortunately, however, this is not enough evidence of rehabilitation, and I must disagree with certain of the Administrative Law Judge's findings as being unsupported by the record.

Finding #15, for instance, says: "A more important issue is whether the incident (of child abuse) was an single isolated incident or a common practice by Petitioner." To the Department, any incident of child abuse is the most important issue in a case where the petitioner seeks a license from the Department to care for children. Moreover, and the only important issue at hearing was whether the petitioner presented "sufficient proof" of rehabilitation to constitute "clear and convincing" evidence that another incident of child abuse will not happen again. Section 435.07(3), Florida Statutes.

Contrary to the Administrative Law Judge's conclusion, the answer in the instant case is "no." In the instant case, the petitioner and her daughter both testified that they still condone corporal punishment for children. In addition, the petitioner continues to care for children without a license from the Department and in spite of the fact that she admits knowing that she violates the law in doing so!

In this case, the Respondent filed Exceptions to the Recommended Order. Most of the Exceptions refer to the conclusion of law regarding rehabilitation and whether or not it

has been demonstrated sufficiently in this case. I accept those Exceptions, but I reject those Exceptions that address the petitioner's credibility. The Petitioner admitted the child abuse and she feels remorse for it. That, however, is not enough. Phillips v. Department of Juvenile Justice, supra.

Accordingly, the application for an exemption is DENIED. DONE and ORDERED this l3th day of March, 2000, in

Tallahassee, Leon County, Florida.

KATHLEEN A. KEARNEY, Secretary

Department of Children and Family Services

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO A JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DEPARTMENT OF CHILDREN AND FAMILY SERVICES, AND A SECOND COPY ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

Copies furnished to:

Daniel Manry Administrative Law Judge

Division of Administrative Hearings 1230 Apalachee Parkway

Tallahassee, FL 32399-3060

Carmen Sierra, Esquire District 7 Legal Office Department of Children and

Family Services

400 W. Robinson Street Orlando, FL 32801-1782

Michael Ingram

Background Screening Coordinator District 7 Legal Office Department of Children and

Family Services

400 W. Robinson Street Orlando, FL 32801-1782

Annie Bell

2218 Nantes Court

Orlando, FL 32808

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing FINAL ORDER has been sent by U. S. Mail or hand delivery to each of the above-named persons this 20th, day of March, 2000.

Virginia Daire, Agency Clerk Department of Children and

Family Services 1317 Winewood Blvd.

Tallahassee, FL 32399-0700

(850) 488-2381

Docket for Case No: 99-002329

Orders for Case No: 99-002329