STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND FAMILY SERVICES,

Petitioner,

vs.

1. A.,

   
   

   Respondent.

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   ) Case No. 04-2460

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   RECOMMENDED ORDER

   
   

   A formal hearing was held pursuant to notice in the above- styled case on December 2, 2004, before Stephen F. Dean, assigned Administrative Law Judge of the Division of Administrative Hearings, in Gainesville, Florida.

   APPEARANCES

   
   

   For Petitioner: Lucy Goddard-Teel, Esquire

   Department of Children and Family Services

   Post Office Box 390, Mail Sort 3 Gainesville, Florida 32602-0390

   
   

   For Respondent: J. A., pro se

   (Address of Record) STATEMENT OF THE ISSUE

   Whether J.A. knowingly and willfully made a false report of abuse on November 29, 2003 (Abuse Report No. 2003-380412), contrary to Section 39.206, Florida Statutes.

   PRELIMINARY STATEMENT

   
   

   On May 11, 2004, a Notice of Intent and Order Imposing Administrative Fine pursuant to Section 39.206(1), Florida Statutes, was served by certified mail on J.A. by the Department of Children and Family Services (Department). J.A. requested a formal hearing, and the case was forwarded to the Division of Administrative Hearings by the Department on July 12, 2004. On July 15, 2004, an Initial Order was issued to the parties that requested that they provide dates they were available for a final hearing. On July 22, 2004, the case was scheduled for final hearing on August 20, 2004, but was not held because of a hurricane. The hearing was re-scheduled to December 2, 2004, and heard as scheduled.

   At hearing, the Department called as witnesses Steven Shaver, Kasey Hart, Manuel Vasquez, Gina Ehlers, Steve Lampros, and the Respondent. The Respondent also testified in her own behalf and called as witnesses Brandy Hardcastle, Susan Mulvey, and Thomas A., her husband. The Department introduced into evidence Department's Exhibits 1 through 5, and J.A. introduced J.A.'s Exhibit B. A transcript of the proceedings was filed on December 23, 2004, and the Department filed a Proposed Recommended Order that was read and considered.

   FINDINGS OF FACT

   
   

   1. The Department is charged by statute to maintain the state's abuse hot line and investigate reports of abuse. It is also charged with investigating false reports of abuse, and is authorized to levy civil fines against those who willfully and knowingly make false reports of abuse. It does this sparingly because it has a chilling effect upon the reporting of abuse.

   2. The Department investigated three reports of abuse initiated by J.A. Each of the reports was thoroughly investigated, and each of the reports was determined to be unfounded.

   3. J.A. had at one time been the babysitter for G.V., the child about whom the reports were made. J.A. and her husband were also friends with the parents of G.V., for whom J.A.'s husband, Thomas, acted as a translator. When G.V.'s grandmother joined the family, J.A.'s services as a babysitter were no longer needed, and she no longer saw the child frequently.

   4. It was apparent from J.A.'s testimony and her actions that she had an emotional attachment to G.V.

   5. On March 10, 2003, J.A. made the first abuse report, No. 2003-034565, which alleged that there had been five to eight months of domestic violence between G.V.'s mother and father.

      It was alleged that this domestic violence occurred several times a week, and that the most recent incident had occurred

      within the past several days. The mother was alleged to have chased the father with a machete in one hand and G.V. in the other arm. It was alleged that the mother beat G.V. It was alleged that the mother had attempted to jump, while holding G.V., out of the car being driven by the father. The mother was described as being an unsafe and inappropriate caregiver. The child was described as having rotting and broken teeth, which the mother failed to do anything about.

   6. This report was investigated by Charles Castell, assisted by Ms. Ehlers. Ms. Ehlers examined the child on

      March 10, 2003 and found nothing to support the allegations made by J.A. Collateral witnesses, such as neighbors who would have been in a position to corroborate the allegations, were interviewed. Fernando Ramirez, an alleged witness, was interviewed. No witness identified by J.A. or through the investigators' efforts provided any support for the allegations made by J.A. The report was closed with no positive findings on any of the allegations, together with a statement that it appeared to be a false report.

   7. The second report of abuse of G.V. made by J.A. was on May 6, 2003. J.A. alleged that the parents of G.V. were engaged in domestic violence, and that G.V.'s mother had chased her father around the yard with a machete while he was drunk. The mother was alleged to be mentally unstable, having a short, bad

      temper, and beating G.V. J.A. alleged that G.V. father was a drunk who gave G.V. alcoholic drinks and who smoked marijuana and blew the smoke in G.V.'s face. J.A. also alleged that G.V.'s teeth were rotting and one was broken off, and G.V. was poorly nourished and had a flat affect.

   8. Gina Ehlers investigated this complaint. She found no indication that G.V. was malnourished or had a flat affect. Ehlers again spoke with neighbors and other witnesses and found no evidence of domestic violence or inappropriate behavior by the mother. Ehlers visited the family on several occasions, including a Friday night at 10:30 or 11:00 p.m., when one might expect to find the father drunk and a cause for domestic violence. Ehlers never found anyone impaired or any evidence of domestic violence or abuse of G.V.

   9. Ehlers interviewed J.A., who indicated that she wanted custody of the child and was going to purse whatever avenues were necessary to take the child away from the parents.

   10. On November 17, 2003, J.A. made an abuse report to the Department's hotline regarding G.V. J.A. alleged that G.V. was living with her mother and father at the father's mother's home.

       1. alleged that everyone but G.V.'s mother abused her physically. J.A. alleged that the father got drunk and hit the child in the mouth, and the child was injured and bruised from this. J.A. alleged that the father gave the child alcoholic

beverages to drink. J.A. alleged that the father battered the mother in front of the child. J.A. alleged that the child was at risk with everyone except her mother, Gloria.

1. Steven Shaver investigated this report. Shaver, who examined the child within three hours of the report, found no evidence to support the allegations. He examined G.V. on three separate occasions and looked for bruises or other evidence of physical injury or abuse. He found none. He also observed the child with the parents and did not find that the child was restrained or fearful of the father or his mother. Upon completing his investigation, Shaver reported that J.A. had reported this same information previously and that it was obvious that J. A. was harassing the family of G.V.

2. Kasey Hart testified at hearing. She is now and was a neighbor of the family when the last report of abuse was made in November 2003. She never saw any activity of the type alleged in the abuse report made by J.A. She observed the family interact from time to time, and never saw any abusive conduct. She opined that the child seemed under-disciplined and spoiled as opposed to abused.

3. Steve Lampros, the Child Protective Investigations Supervisor who supervised the investigators who investigated these abuse reports testified. All the investigations conducted were thorough and complete, and included interviews with family

   and neighbors and physical examination of the child. This included medical examination of the child for injury. All three investigations revealed no evidence that would support a finding that any abuse had occurred. Had there been any indications of abuse, the report would have been labeled "some indicators."

4. J.A. told Lampros that she wanted custody of the child, and would file reports until the Department did something. Lampros warned J.A. that filing false reports was a felony, and that the three reports she had filed had been determined to be without indicators of abuse, that is, unfounded. J.A. stated that her reports were not false and that she would continue to make them.

5. Lampros referred the Abuse Report No. 2003-380412 for false reporting because seven of his investigators had investigated five reports, three within the same year, without discovering any evidence of indicators of abuse. The reports were similar; the investigations were thorough; the reporter appeared to be motivated by a desire to remove the child from the home in the hopes of obtaining custody; and there had been no evidence of abuse.

6. J.A. testified at hearing that she did not see the child from June or July 2003 until a few days prior to the time she made the November abuse report, when she saw the family at

   Wal-Mart. At that time, they did not see her, and she was not close enough to them to speak.

7. The granddaughter of J.A. testified. She had not seen the child, G.V., since Easter 2004. Her testimony dealt with the period after the time frame involved in the allegations of false reporting.

8. J.A.'s husband testified about his assisting the police with reports of domestic violence between G.V.'s parents in 2001 and 2002, before the time frame of the allegations of false reporting.

9. Susan Mulvey, a neighbor of J.A., testified. Mulvey was at J.A.'s house at times when G.V.'s family came to pick her up when J.A. babysat for G.V. Mulvey observed that G.V. did not want to leave J.A. when her parents came for her. She also observed that the child's teeth had severe cavities.

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this hearing pursuant to Sections 120.57, and 39.206(4), Florida Statutes.

11. Section 39.206, Florida Statutes, provides in pertinent part as follows:

    1. In addition to any other penalty authorized by this section, chapter 120, or other law, the department may impose a fine, not to exceed $10,000 for each violation, upon a person who knowingly and willfully makes a false report of abuse, abandonment, or neglect of a child, or a person who counsels another to make a false report.

       
       

       1. Any person alleged to have filed the false report is entitled to any administrative hearing, pursuant to chapter 120, before the imposition of the fine becomes final . . . [.]

          
          

       2. At the administrative hearing, the department must prove by a preponderance of the evidence that the person filed a false report with the central abuse hotline.

          
          

       3. In determining the amount of fine to be imposed, if any, the following factors shall be considered:

          
          

          1. The gravity of the violation, including the probability that serious physical or emotional harm to any person will result or has resulted, the severity of the actual or potential harm, and the nature of the false allegations.

             
             

          2. Actions taken by the false reporter to retract the false report, or, in contrast, to encourage an investigation on the basis of false information.

             
             

          3. Any previous false reports filed by the same individual.

       
       

       (9) A person who is determined to have filed a false report of abuse, abandonment, or neglect is not entitled to confidentiality. Subsequent to the conclusions of all administrative or other judicial proceedings concerning the filing of a false report, the name of the false reporter and the nature of the false report

       shall be made public, pursuant to section 119.01(1). Such information shall be admissible in any civil or criminal proceeding.

       
       

12. A false report is defined by Section 39.01(27), Florida Statutes, as a report of abuse, neglect, or abandonment of a child to the central abuse hotline which is made maliciously for the purpose of harassing, embarrassing or harming another person; for financial gain of the reporter; acquiring custody of a child; or personal benefit of the reporter in a private dispute.

13. The evidence in this cause shows that the Respondent, J.A., made a series of reports regarding allegations of abuse of

    G.V. The three reports contained similar information. Three investigations were made, which included physical examination of the child, which developed no indicators of abuse of this child. The Respondent made it clear to Department personnel that she would continue to make reports of abuse until they removed the child from the care of her parents. The Respondent has indicated that she seeks custody of the child.

14. The Department has proved that the Respondent made a false report of abuse to the central abuse hotline. The circumstances warrant imposition of a substantial fine in the matter because of the number of false reports, the motivation, and the unrepentant attitude of the Respondent. It appears from

the Respondent's demeanor that she believes, without regard to reason, that she is acting in the child's best interest. This is troubling because it is against the child's best interest to continue to be examined and have the family's life disrupted.

1. The Department must investigate each time it receives a report of abuse regarding G.V. from J.A. It cannot pick and choose the reports that it will investigate. Not only is it a waste of resources to investigate a false report, but it takes those resources away from cases that are real. The Respondent's false reporting must cease.

2. Having found that the Respondent filed a false report, and having found multiple aggravating factors that call for the enhancement of the fine, it is recommended that a fine of $5,000 be levied against the Respondent. Further, it is noted herein that the maximum of $10,000 was not levied so that some increase in penalty would be available if the Respondent should persist in filing false reports with regard to this child.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is

RECOMMENDED:

That the Department enter a final order levying a civil fine of $5,000 against the Respondent.

DONE AND ENTERED this 16th day of February, 2005, in

Tallahassee, Leon County, Florida.

STEPHEN F. DEAN

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 16th day of February, 2005.

COPIES FURNISHED:

Lucy Goddard-Teel, Esquire Department of Children

and Family Services Post Office Box 3, Box 3

Gainesville, Florida 32602

J. A.

(Address of record)

Josie Tomayo, General Counsel Department of Children

and Family Services Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399-0800

Joe Garwood, Agency Clerk Department of Children

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

Tallahassee, Florida 32399-0800

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: 04-002460

Orders for Case No: 04-002460