STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DIANA JONES,

Petitioner,

vs.

DEPARTMENT OF CHILDREN AND FAMILY SERVICES,

Respondent.

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) Case No. 02-4378

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RECOMMENDED ORDER

Administrative Law Judge (ALJ) Daniel Manry conducted the administrative hearing of this case on January 21, 2003, in Viera, Florida, on behalf of the Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Diana Jones, pro se

1051 Jacaranda Circle

Rockledge, Florida 32955

For Respondent: Richard Cato, Esquire

Department of Children and Family Services

400 West Robinson Street Suite S-1106

Orlando, Florida 32801-1782 STATEMENT OF THE ISSUE

The issue is whether Respondent should deny Petitioner's application for a foster parent license on the grounds that Petitioner allegedly lacks good moral character pursuant to

Section 409.175, Florida Statutes (2002). (Citations to statutes are to Florida Statutes (2002).)

PRELIMINARY STATEMENT

By letter dated October 1, 2002, Respondent notified Petitioner that Respondent intended to deny Petitioner's application for a foster parent license on the grounds that Petitioner allegedly lacks good moral character. Petitioner timely requested an administrative hearing.

At the hearing, Petitioner presented the testimony of three witnesses and submitted two exhibits for admission into evidence. Respondent presented the testimony of five witnesses and submitted no exhibits for admission into evidence. The identity of the witnesses and exhibits, and the rulings regarding each, are set forth in the Transcript of the hearing filed with DOAH on March 21, 2003.

The time for filing proposed recommended orders has passed.

Neither party filed a proposed recommended order with DOAH.

FINDINGS OF FACT

1. Respondent is the state agency responsible for licensing foster parents in Florida. By letter dated October 1, 2002, Respondent notified Petitioner that Respondent proposed to deny Petitioner's application to be licensed as a foster parent (Notice of Denial).

2. The Notice of Denial provides that lack of good moral character is the sole ground for the proposed denial. The preponderance of evidence from Petitioner and her three witnesses shows that Petitioner possesses good moral character.

3. Respondent bases the proposed denial exclusively on the testimony of one of Petitioner's neighbors (the neighbor). The neighbor testified during the hearing that Petitioner possesses good moral character.

   As far as her character, her character is outstanding, moral, cleanliness, honesty.

   
   

   * * *

   
   

   She's been my best friend for years, sister in Christ.

   
   

   Transcript (TR) at 56 and 59.

   
   

4. Until a telephone conversation when Petitioner told the neighbor that Petitioner did not want to be the neighbor's friend anymore, the neighbor believed Petitioner to possess "total honesty."

   Since that call[,] I rescinded that . . . because I was hearing untruths[,] and I didn't want to hear it.

   
   

   TR at 59.

   
   

5. Petitioner raised her two biological daughters and then raised the biological daughters of Petitioner's brother (the nieces). The neighbor testified that Petitioner had a "hard

   time" raising her biological children and a "real hard time" raising her nieces.

6. A "hard time" raising children does not evince a lack of good moral character; nor does a "real hard time" raising the children of another. Rather, Petitioner's willingness to take on the financial and emotional responsibility of raising another's children after raising her own children demonstrates courage, commitment, and fortitude. Those attributes evince good moral character rather than a lack of good moral character.

7. Respondent adduced evidence during the hearing intended to question Petitioner's parenting skills. For example, Petitioner required her biological children to read Bible scripture each morning before school and to summarize what they read. When the children became teenagers, they rebelled against Petitioner. Petitioner sent one of her daughters to live with Petitioner's ex-husband, the biological father of the daughter.

8. Petitioner cut the hair of one of her nieces too short on one occasion. Petitioner used pushups to discipline her nieces. As the two grew older, the pushups became excessive on some occasions. The nieces would sometimes perform as many as

   100 pushups without a break.

   
   

9. Petitioner's brother used pushups to discipline his daughters before he sent them to live with Petitioner. Petitioner gave her nieces a choice between pushups and going to

   their room. Each niece chose pushups. The nieces were in gymnastics and were very active.

10. Petitioner reserved excessive pushups for egregious offenses such as when a niece bit or kicked her teacher in school. Petitioner understands that a foster parent cannot cut the hair of a foster child too short, require them to read the Bible, or use pushups as a form of discipline.

11. One of the nieces testified at the hearing on behalf of Petitioner. Her testimony was credible and persuasive. Respondent interviewed that witness during the screening of Petitioner's application. However, Respondent chose to ignore the statements of the niece and to rely solely on those of the neighbor.

12. Respondent spent most of the administrative hearing adducing evidence of the "hard time" and "real hard time" that Petitioner experienced raising her children and her nieces. At worst, the evidence adduced by Respondent arguably may be evidence of bad parenting skills (parental incompetence). However, difficulty parenting children does not evince a lack of good moral character.

13. The Notice of Denial states that a lack of good moral character is the sole ground for the proposed denial of Petitioner's application. The Notice of Denial does not state that parental incompetence is a ground for the proposed agency

    action. Respondent cannot provide Petitioner with notice before the administrative hearing that Petitioner must prove that she has good moral character and, at the hearing, require Petitioner to prove a different ground such as parental competence. To do so, would violate fundamental principles of due process.

    CONCLUSIONS OF LAW

    
    

14. DOAH has jurisdiction over the parties and subject matter of this case. Sections 120.569 and 120.57(1). The parties received adequate notice of the administrative hearing.

15. Petitioner has the burden of proof in this proceeding.

    
    

    Petitioner must show by a preponderance of the evidence that she has good moral character. Department of Banking and Finance v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996); Florida Department of Transportation v. J.W.C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981); Balino v. Department of Health and Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA 1977).

16. Petitioner satisfied her burden of proof. The testimony of Petitioner and that of the three witnesses she presented at the administrative hearing was credible and persuasive.

17. Respondent chose to rely on the testimony of the neighbor. The neighbor testified that Petitioner possesses good moral character.

18. Petitioner may, or may not, have been incompetent as a parent to her two biological children and to her two nieces. However, parental competence is not relevant to the ground stated in the Notice of Denial that Petitioner lacks good moral character.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusion of Law, it is

RECOMMENDED that Respondent enter a Final Order finding that Petitioner possesses good moral character and granting Petitioner's application to be licensed as a foster parent.

DONE AND ENTERED this 2nd day of May, 2003, in Tallahassee, Leon County, Florida.

DANIEL MANRY

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 2nd day of May, 2003.

COPIES FURNISHED:

Richard Cato, Esquire Department of Children and

Family Services

400 West Robinson Street Suite S-1106

Orlando, Florida 32801-1782

Diana Jones

1051 Jacaranda Circle

Rockledge, Florida 32955

Paul Flounlacker, 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

Jerry Regier, Secretary Department of Children and

Family Services

1317 Winewood Boulevard

Building 1, Room 202

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: 02-004378

Orders for Case No: 02-004378