STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARY COLLINS, )

)

Petitioner, )

)

vs. ) Case No. 01-1114

) DEPARTMENT OF CHILDREN AND ) FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was conducted in this case on April 23, 2001, and May 21, 2001, in Mariana, Florida, before the Division of Administrative Hearings, by its Administrative Law Judge, Suzanne F. Hood.

APPEARANCES

For Petitioner: Mary Collins, pro se

Post Office Box 208 Greenwood, Florida 32443

For Respondent: John R. Perry, Esquire

Department of Children and Family Services

2639 North Monroe Street, Suite 252A Tallahassee, Florida 32399-2949

STATEMENT OF THE ISSUE

The issue is whether Respondent properly denied Petitioner's application for a license to operate a foster home.

PRELIMINARY STATEMENT

By letter dated February 9, 2001, Respondent Department of Children and Family Services (Respondent) denied Petitioner Mary Collins' (Petitioner) application for a license to operate a foster home. On February 21, 2001, Respondent hand-delivered a second letter dated February 16, 2001, to Petitioner, denying her application.

On March 7, 2001, Petitioner filed a request for a formal hearing with Respondent. Respondent referred Petitioner's request to the Division of Administrative Hearings on March 21, 2001.

The parties filed a Response to Initial Order on March 28, 2001. A Notice of Hearing dated March 30, 2001, scheduled the case for hearing on April 23, 2001.

During the hearing on April 23, 2001, Petitioner testified on her own behalf and offered one exhibit, which was accepted into evidence. Respondent presented the testimony of one witness and offered one exhibit, which was accepted into evidence. At the conclusion of the hearing, the parties agreed to the granting of a continuance so that Petitioner could subpoena additional witnesses.

On April 24, 2001, the undersigned issued an Order Granting Continuance and Rescheduling Hearing. This Order advised the parties that the hearing would reconvene on May 21, 2001.

When the hearing reconvened on May 21, 2001, Petitioner presented the testimony of one additional witness. She did not offer additional exhibits for admission into evidence.

Respondent presented the testimony of one additional witness and offered five additional exhibits, which were accepted into evidence.

The parties did not file the transcript of the proceeding. As of the date of this Order, the parties had not filed proposed recommended orders.

FINDINGS OF FACT

1. In February 1990, Petitioner married Reverend Robert E. Osborne, Jr.

2. In 1992, Petitioner lived at 6040 Oscar Road in Greenwood, Florida.

3. On November 21, 1992, Willie Cobb, Petitioner's adult friend, confronted Petitioner at a convenience store in Greenwood, Florida. He wanted Petitioner either to let him drive her car or to give him a ride. Petitioner refused

   Mr. Cobb's demands because he was intoxicated. Subsequently, Petitioner signed an affidavit charging Mr. Cobb with domestic violence. The charging document indicates that Mr. Cobb's address was the same as Petitioner's at 6040 Oscar Road, Greenwood, Florida.

4. On November 23, 1992, Mr. Cobb entered a guilty plea to the domestic violence charge in the County Court of Jackson County, Florida. Mr. Cobb's sentence included, but was not limited to, one year of probation.

5. On December 31, 1992, Willie Cobb stabbed Petitioner in the shoulder with a knife in the kitchen of her home at 6040 Oscar Road, Greenwood, Florida. Petitioner signed an affidavit charging Willie Cobb with aggravated battery. The charging document that Petitioner signed lists Mr. Cobb's address as 6040 Oscar Road, Greenwood, Florida. The resulting criminal case against Mr. Cobb was eventually dismissed because Petitioner failed to appear for two interviews with the prosecutor.

6. In April 1993, Respondent's staff investigated allegations of sexual abuse of Petitioner's daughter, Jennifer Smith, by Willie Cobb. Jennifer Smith was 11 years old at the time. The resulting Florida Protective Services System case was closed without classification.

7. Petitioner testified during the hearing that Willie Cobb was not living in her home in April 1993. Petitioner's testimony on this point is not persuasive. Even so, there is no competent evidence to support hearsay allegations that Willie Cobb sexually abused or molested Jennifer Smith in April 1993.

8. In November 1993, Reverend Osborne, Petitioner's husband, lived with Petitioner at 6040 Oscar Road in Greenwood,

   Florida. Several other family members resided at the same address, including Petitioner's daughter, Jennifer Smith, and her nine-year-old granddaughter, Terri Hayes.

9. Willie Cobb occasionally did yard work and odd jobs around the home at 6040 Oscar Road in Greenwood, Florida in November 1993. Petitioner's testimony that Willie Cob was not her boyfriend and did not live in the same house in November 1993 is not persuasive.

10. On the evening of November 28, 1993, Petitioner entertained some of her friends, including Willie Cobb, at her home at 6040 Oscar Road, Greenwood, Florida. While Petitioner was with her friends in the yard, Willie Cobb was in the house with Terri Hayes.

11. Someone called the police, alleging that Mr. Cobb hit Terri Hayes in the jaw in an attempt to take $20 from her. Someone also made a call to the Florida Protective Services System.

12. During Respondent's subsequent investigation, Petitioner stated that Mr. Cobb just tapped Terri Hayes on the head without hurting her. However, she was not an eyewitness to the alleged incident.

13. During the hearing of the instant case, Terri Hayes testified that Willie Cobb never hit her. Her testimony is credible and without contradiction.

14. On August 20, 1994, Willie Cobb was arrested for obstruction of justice. The charging document indicates that Mr. Cobb lived at 6040 Oscar Road, Greenwood, Florida. Mr. Cobb pled guilty to resisting arrest without violence. On

    January 19, 1995, the County Court Judge in Jackson County, Florida, sentenced Mr. Cobb to one year in jail.

15. In October 1994, Respondent's staff was called to investigate allegations that Petitioner had slapped and punched her daughter, Jennifer Smith, in the face. Respondent's investigation resulted in the case being closed without classification.

16. During the hearing of the instant case, neither Petitioner nor Respondent presented testimony regarding Petitioner's alleged physical abuse of her daughter, Jennifer Smith, in October 1994. There is no competent evidence that such an incident ever occurred.

17. Later in 1994, Petitioner moved to the state of Washington, where she worked as a caretaker in a group home. Petitioner's daughter, Marian, and Marian's seven-year-old son, Trammel, also moved to the state of Washington.

18. Petitioner's daughter, Marian, subsequently abandoned Trammel, leaving him with some of her friends. When Petitioner learned that her grandson, Trammel, had been abandoned, Petitioner picked him up and took him to the hospital.

19. Respondent's counterpart in Washington tried to place Trammel in foster care. However, Petitioner eventually got official custody of her grandson. Trammel still lives with Petitioner as her adopted son. There is no evidence that Petitioner ever abandoned one of her children, grandchildren, or any other child for which she was responsible.

    CONCLUSIONS OF LAW

    
    

20. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. Sections 120.569 and 120.57(1), Florida Statutes.

21. As the party seeking licensure, Petitioner bears the burden of proving by a preponderance of the evidence that she should be licensed to operate a foster home in Jackson County, Florida. Department of Transportation v. J.W.C. Company, 396 So. 2d 778 (Fla. 1st DCA 1981) and Section 120.57(1)(j), Florida Statutes.

22. In deciding this case, the fact finder must be guided by the principle that a foster home license is not a professional license of an entitlement, but rather is a "public trust and a privilege." Section 409.175(2)(f), Florida Statutes. However, Respondent can only deny a license based on a reasoned decision.

23. In this case, Respondent stated as follows in its February 16, 2001, denial letter:

    1. There are three prior reports of abuse, neglect, or abandonment that involve you and or your children. A 1993 report of sexual abuse of Jennifer by W.C. exists. In the summary of the investigation there is indication of Domestic Violence occurrences between you and W.C. It also says that you always dropped the charges and allowed him to return to the home. The family was referred for counseling.

       
       

    2. Another report in 1993 alleges W.C. hit Terri. This report indicated W.C. was back in the home following the first report of sexual abuse. The investigative summary indicated the mother, Mary Collins, seemed to minimize the incident saying W.C. only tapped Terri and did not hurt her.

       
       

    3. A third report in 1994 alleged Jennifer Smith had been slapped in the face by her mother, Mary Collins. The case was closed without classification but the investigator noted there was enough evidence to support the allegations of physical abuse.

       
       

       The Department has determined that the above three acts constitute grounds to deny you a license based on Section 409.175(8)(b)1, Florida Statutes, in that they constitute "an intentional or negligent act materially affecting the health or safety of children in the home or agency.

       
       

24. In presenting her case, Petitioner denied that she had ever abused, neglected, or abandoned any child in her home for which she was responsible. Ultimately, she has met her burden of proving that she should be licensed to operate a foster home.

25. First, there is no competent evidence that Willie Cox sexually molested Jennifer Smith in April 1993. Therefore, it

    is irrelevant whether Willie Cox was Petitioner's boyfriend and/or was living in Petitioner's home at that time.

26. Secondly, there is no competent evidence that Petitioner physically abused Jennifer Smith in October 1994. In fact, the only evidence regarding this allegation, other than Petitioner's denial, was the admission into evidence of a Florida Protective Service System abuse report, which is not competent proof in this proceeding.

27. Petitioner bears the ultimate burden of persuasion in this case. However, she is not required to prove that she did not act in accordance with Respondent's allegations until Respondent presents some competent evidence to support those allegations. Admission of Florida Protective Service System abuse reports into evidence, without more, is insufficient to establish the factual content of the reports.

28. The investigators responsible for making the April 1993 and October 1994 abuse reports did not testify at hearing. Even if one of the investigators had testified, neither report contains any statement by Petitioner that constitutes an admission of neglect or abuse or that is inconsistent with her testimony.

29. Finally, the most persuasive evidence indicates that Willie Cox did not physically abuse Terri Hayes in November

    1993. There is no evidence to refute Terri Hayes' testimony that Willie Cox never hit her.

30. Petitioner's testimony that Willie Cox never lived in her home was not persuasive in the face of so much competent evidence to the contrary. It does appear that Petitioner and Willie Cox had a long-standing and often violent relationship from at least 1992 through the fall of 1994. However, Petitioner's lack of credibility on this point does not mean that Petitioner is guilty of committing "an intentional or negligent act materially affecting the health or safety of children in her home." See Section 409.175(8)(b)1, Florida Statutes.

RECOMMENDATION

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

RECOMMENDED:

That Respondent enter a final order granting Petitioner a license to operate a foster home.

DONE AND ENTERED this 12th day of June, 2001, in Tallahassee, Leon County, Florida.

SUZANNE F. HOOD

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 12th day of June, 2001.

COPIES FURNISHED:

Mary Collins

Post Office Box 208 Greenwood, Florida 32443

John R. Perry, Esquire Department of Children and

Family Services

2639 North Monroe Street, Suite 252A Tallahassee, Florida 32399-2949

Virginia A. Daire, Agency Clerk Department of Children and

Family Services Building 2, Room 204B 1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Josie Tomayo, 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: 01-001114

Orders for Case No: 01-001114