STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EDWARD MINGUS,

Petitioner,

vs.

DEPARTMENT OF CHILDREN AND FAMILY SERVICES,

Respondent.

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) Case No. 01-4808

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RECOMMENDED ORDER

Upon due notice, William R. Cave, an Administrative Law Judge for the Division of Administrative Hearings, held a formal hearing in this matter on February 13, 2002, in Lakeland, Florida.

APPEARANCES

For Petitioner: Edward D. Mingus, Jr., pro se

Post Office Box 2574

Eaton Park, Florida 33840

For Respondent: Jack Emory Farley, Esquire

Department of Children and Family Services

4720 Old Highway 37

Lakeland, Florida 33813-2030 STATEMENT OF THE ISSUES

Is Petitioner disqualified from adopting a child under Chapter 39, Florida Statutes, and, if so, should Petitioner be granted an exemption from disqualification?

PRELIMINARY STATEMENT

Sometime prior to July 30, 2001, Petitioner and his wife, Karin Mingus, filed an application with the Department of Children and Family Services (Department) to become eligible to adopt a child under Chapter 39, Florida Statutes, through the Department. By a Notice of Ineligibility for a Position of Special Trust dated July 30, 2001, Petitioner was advised that a security background check revealed that Petitioner was ineligible for a position of special trust or responsibility on the basis that an Injunction For Protection Against Domestic Violence had been issued against him. Subsequently, Petitioner requested an exemption from disqualification under

Section 435.07, Florida Statutes. By letter dated September 19, 2001, Petitioner was advised by the Department that his request for exemption from disqualification had been denied. The letter also advised Petitioner that he could request a formal hearing to contest the denial. By letter dated October 14, 2001, Petitioner requested a formal hearing. On October 23, 2001, the Department entered an Order Rejecting Petition With Leave to Amend. On November 8, 2001, Petitioner filed an Amended Petition. By Notice dated December 7, 2001, the Department referred this matter to the Division of Administrative Hearings (Division) for the assignment of an Administrative Law Judge and for the conduct of a formal hearing.

At the hearing, Petitioner testified in his own behalf but presented no other witness. Petitioner did not offer any documentary evidence. The Department presented the testimony of Sue Gray and Ann Hipson. The Department's Exhibits 1-8, and Composite Exhibits 9-12 were admitted in evidence. Sections 435.04, 435.045, 435.07, 741.28, and 741.30, Florida Statutes,

were officially recognized.

A Transcript of this proceeding was filed with the Division on March 7, 2002. The Department timely filed its Proposed Recommended Order. Petitioner elected not to file a proposed

recommended order.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made:

1. Since the dissolution of his marriage to Selma Mingus, Petitioner has remarried. However, Petitioner's present wife, Karin Mingus, is unable to conceive a child. Therefore, Petitioner and Karin Mingus wish to adopt a child.

2. In early 2001, Petitioner and Karin Mingus attempted to qualify for the adoption of a child through the Department under Chapter 39, Florida Statutes.

3. In accordance with Section 435.045, Florida Statutes, the Department conducted a criminal records check of

   Respondent's background equivalent to a level 2 screening required in Section 435.04(1), Florida Statutes.

4. By letter dated July 30, 2001, Jennifer J. Farr, the Department's District 14 Screening Coordinator, gave Petitioner Notice of Ineligibility for a Position of Special Trust. The letter advised Petitioner that his criminal identification record had revealed an Injunction for Protection Against Domestic Violence dated April 13, 1994, and that he could not have contact of any kind with children or developmentally disabled persons not related to Petitioner.

5. On December 12, 1993, Selma Mingus, Petitioner's wife at the time, filed a verified Petition for Injunction Against Domestic Violence (Petition I) with the Circuit Court, Polk County, Florida, Civil Division, alleging that Petitioner had committed certain acts against her, which put her in fear of violence from Petitioner. The Petition was assigned

   Case No. GC-F-94-2188.

   
   

6. On December 13, 1993, without notice or hearing, the court the Petition I. Thereafter, the court determined that it appeared that an immediate and present danger of domestic violence existed. Therefore, in accordance with Section 741.30(5)(a), Florida Statutes, the court entered a Temporary Injunction for Protection and Notice of Hearing (Ex Parte) (Temporary Injunction). Petitioner was served with a copy of

   the Temporary Injunction, which advised Petitioner that a Temporary Injunction had been entered and that a hearing would be held on January 4, 1994, wherein the court would consider, among other matters, whether to continue the Temporary Injunction for a period not to exceed one year.

7. On January 4, 1994, the court held a hearing wherein the allegations contained in Petition I were heard. Although Petitioner had notice of the hearing, he elected not to attend the hearing and explain to the court his side of the story or to deny the allegations made against him by Selma Mingus in Petition I. After considering the evidence presented during the hearing, the court granted Petition I and ordered that the Injunction remain in force until January 4, 1995.

8. The court did not order Petitioner to participate in treatment, intervention, counseling services, or batterers' intervention program.

9. There is no evidence that Petitioner violated either the Temporary Injunction issued on December 13, 1993, or the Injunction entered on January 4, 1994.

10. On April 13, 1994, Selma Mingus, now Petitioner's ex- wife, the dissolution of marriage having become final, filed a verified Petition for Injunction for Protection Against Domestic Violence with the Circuit Court, Polk County, Florida, Civil Division (Petition II) alleging that Petitioner had committed

    certain acts against her, which put her in fear of violence from Petitioner. The Petition was assigned Case No. GC-F-94-2188.

11. The Department's Composite Exhibit 10 contains the cover page of a Temporary Injunction for Protection and Notice of Hearing (Ex Parte) indicating that this Temporary Injunction contains two pages. However, Composite Exhibit 10 contains only the first page. The second page, which is apparently the signature page, is missing. From the cover page it appears that this matter was heard on April 13, 1994. This incomplete Temporary Injunction is apparently the Injunction cited in the Notice of Ineligibility for Position of Special Trust dated

    July 30, 2001.

    
    

12. There is no evidence that Petitioner was ever given notice of a hearing or that a hearing was ever held on the continuation of this incomplete Temporary Injunction or that the court made any factual findings that Petitioner committed the acts against Selma Mingus as alleged in Petition II.

    Furthermore, there is no evidence that the court ever ordered a continuation of the Temporary Injunction, with or without a hearing.

13. Petitioner denies that he committed any act of violence towards Selma Mingus and refuses to accept any responsibility for the stormy relationship between him and his first wife.

14. Furthermore, Petitioner refuses to accept the need for rehabilitation on his part.

15. Petitioner has had, and continues to have, a problem with controlling his anger, notwithstanding his testimony to contrary. So far, Petitioner has failed to address his anger problem.

16. Petitioner has never been charged, arrested or convicted of any crime, including domestic violence.

17. Petitioner is in law enforcement and has been commended for his work in the area of law enforcement.

18. Since the dissolution of his marriage to Selma Mingus, Petitioner has become involved in the church and civic affairs.

    CONCLUSIONS OF LAW

    
    

19. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding pursuant to Subsection 120.57(1), Florida Statutes.

20. Section 435.045(1)(a), Florida Statutes, authorizes the Department "to conduct criminal records checks equivalent to the level 2 screening required in s. 435.04(1) for any person being considered by the department for placement of a child subject to placement decision pursuant to chapter 39." In accordance with this authority, the Department conducted a criminal records check on Petitioner.

21. Section 435.04(4)(b), Florida Statutes, provides as follows:

    Standards must also ensure that the person:

    * * *

    
    

    (b) Has not committed an act that constitutes domestic violence as defined in s. 741.30.

    
    

22. Section 741.30, Florida Statutes, does not contain a definition of domestic violence. However, Subsections 741.30(1)(a) and (e), Florida Statutes, provide in pertinent part as follows:

    1. There is created a cause of action for an injunction for protection against domestic violence.

       
       

       1. Any person described in paragraph (e), who is the victim of any act of domestic violence, or has reasonable cause to believe he or she is in imminent danger of becoming the victim of any act of domestic violence, has standing in the circuit court to file a sworn petition for an injunction for protection against domestic violence. (Emphasis furnished.)

          
          

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          (e) This cause of action for an injunction may be sought by family or household members. . . .

          
          

23. Subsections 741.30(5)(a)(1), (b), and (c), Florida Statutes, provide in pertinent part as follows:

    (5)(a) When it appears to the court that an immediate and present danger of domestic violence exists, the court may grant a

    temporary injunction ex parte, pending a full hearing, and may grant such relief as the court deems proper, including an injunction:

    1. Restraining the Respondent from committing any acts of domestic violence.

    
    

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    1. In a hearing ex parte for the purpose of obtaining such ex parte temporary injunction, no evidence other than verified pleadings or affidavits shall be used as evidence, unless the Respondent appears at the hearing or has received reasonable notice of the hearing.

    2. Any such ex parte temporary injunction shall be effective for a fixed period not to exceed 15 days. A full hearing, as provided by this section, shall be set for a date no later than the date when the temporary injunction ceases to be effective. . . (Emphasis furnished.)

    
    

24. Subsections 741.30(6)(a)1. and 7., Florida Statutes, provide as follows:

    (6)(a) Upon notice and hearing, the court may grant such relief as the court deems proper, including an injunction:

    1. Restraining the Respondent from committing any acts of domestic violence.

    
    

    * * *

    
    

    7. Ordering such other relief as the court deems necessary for the protection of a victim of domestic violence, including injunctions. . . .(Emphasis furnished.)

    
    

25. Subsections 435.07(1)(e) and (3), Florida Statutes, provide as follows:

    1. The appropriate licensing agency may grant to any employee otherwise disqualified from employment an exemption from disqualification for:

       
       

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       (e) Commission of acts of domestic violence as defined in s. 741.30.

       
       

       * * *

       
       

       (3) 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. 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 an 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. . . .

       
       

26. Clearly, an injunction for protection against domestic violence entered in accordance with Subsection 741.30(6)(a), Florida Statutes, is a disqualifying event under

Section 435.04(3)(b), Florida Statutes, which would prevent Petitioner from adopting a child unless the Petitioner is granted an exemption from disqualification by the Department under Section 434.07, Florida Statutes. Petitioner has failed to demonstrate by clear and convincing evidence that he should not be disqualified from adopting a child in that he failed to

meet his burden of showing that he has been rehabilitated in regards to the disqualifying event.

RECOMMENDATION

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

RECOMMENDED that the Department enter a final order denying Petitioner exemption from disqualification.

DONE AND ENTERED this 15th day of April, 2002, in Tallahassee, Leon County, Florida.

WILLIAM R. CAVE

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 15th day of April, 2002.

COPIES FURNISHED:

Jack Emory Farley, Esquire Department of Children and

Family Services 4720 Old Highway 37

Lakeland, Florida 33813-2030

Edward D. Mingus, Jr. Post Office Box 2574

Eaton Park, Florida 33840

Peggy Sanford, Agency Clerk Department of Children

and Family Services 1317 Winewood Boulevard Building 2, Room 204B

Tallahassee, Florida 32399-0700

Josie Tomayo, General Counsel Department of Children

and Family Services 1317 Winewood Boulevard

Building 2, Room 204

Tallahassee, Florida 32399-0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit 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: 01-004808

Orders for Case No: 01-004808