STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JANNIFER THOMPSON1

Petitioner,

vs.

DEPARTMENT OF CHILDREN AND FAMILY SERVICES,

Respondent.

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) Case No. 07-2643

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RECOMMENDED ORDER

This case came before Administrative Law Judge John G. Van Laningham for final hearing on October 10, 2007, in Fort Pierce, Florida.

APPEARANCES

For Petitioner: Peter T. Gianino, Esquire

Grazi & Gianino

217 East Ocean Boulevard Stuart, Florida 34994

For Respondent: Laurel Hopper, Esquire

Department of Children and Family Services

337 North Highway 1, Suite A Fort Pierce, Florida 34650

STATEMENT OF THE ISSUE

The issue in this case is whether Petitioner's foster home license should be renewed.

PRELIMINARY STATEMENT

By letter dated March 30, 2007, Respondent Department of Children and Family Services informed Petitioner Jannifer Thompson that it intended not to renew her foster home license. This preliminary decision was based on allegations that Thompson had made "excessive use of corporal punishment" and had failed promptly to notify the agency that her husband had moved out of the residence. Through counsel, Ms. Thompson timely requested a formal administrative hearing. Respondent referred the matter to the Division of Administrative Hearings ("DOAH") on June 4, 2007, where it was assigned to an Administrative Law Judge who scheduled a final hearing for August 9 and 10, 2007. The hearing was later continued, at the parties' joint request, to October 10 and 11, 2007.

The final hearing took place as scheduled with both sides present. Ms. Thompson testified on her own behalf and called as additional witnesses her former husband, Dalkeith Thompson; her daughter J. T.; and Sancia Jeantil. Ms. Thompson offered no exhibits.

Respondent presented five witnesses: Elboney Ojobor, Lynne Schicker, Karl Dorelien, J. D. F., and O. F. In addition, Respondent offered two exhibits, each of which was admitted into evidence without objection.

At the close of the hearing, the undersigned directed the parties to file their respective Proposed Recommended Orders within 10 days after the filing of the final hearing transcript with DOAH. The transcript of the final hearing was filed on October 23, 2007, and thereafter the parties were notified that the deadline for filing Proposed Recommended Orders would be November 2, 2007. Each party timely filed a Proposed Recommended Order.

Unless otherwise indicated, citations to the Florida Statutes refer to the 2006 Florida Statutes.

FINDINGS OF FACT

1. From August 24, 2004, and throughout the period material to this proceeding, Petitioner Jannifer Thompson ("Thompson") and her husband, Dalkeith, held a license that authorized them to operate a family foster home under the supervision——and within the regulatory jurisdiction——of Respondent Department of Children and Family Services ("DCF").

2. Like all licensed foster parents, Thompson and her husband had entered into a written contract with DCF known as the "Bilateral Service Agreement" ("Agreement"), most recently as of April 30, 2006. This Agreement, by its terms, "reflect[ed] standards of care that are current requirements in Florida [law]."

3. On September 14, 2006, a counselor named Elboney Ojobor, who was employed by a private agency to whom DCF had delegated various responsibilities pursuant to contract, made a routine quarterly visit to Thompson's home. Ms. Ojobor was covering for a colleague (Rondalyn Woulard) who was on maternity leave; she had not met Thompson previously.

4. While interviewing Thompson, Ms. Ojobor learned that Thompson was the only adult living in the home at the time, and that Thompson was getting divorced from Dalkeith. Ms. Ojobor understood this to mean that Mr. Thompson had moved out of the home permanently. In fact, Mr. Thompson was away from the home then not because he had moved to another residence ahead of a divorce, but because his job with a shipping company had required him to be out of town for an extended period. Nevertheless, the couple was estranged; Mr. Thompson would leave the marital home for good in the middle of October 2006.

5. Ms. Ojobor's visit was not the first occasion on which Thompson had notified DCF (through its private-sector agent) that her marriage to Dalkeith was in trouble. During an earlier home visit (probably around June 2006, during the quarter immediately preceding Ms. Ojobor's visit in September), Thompson had told her regular counselor, Ms. Woulard, that she might divorce Dalkeith. Ms. Ojobor was not aware of this previous communication, however, and thus she reported the apparent

   change in circumstances (Mr. Thompson's absence) to her supervisor.

6. The upshot was that on September 15, 2006, Ms. Ojobor called Thompson to inform her that, if she were to continue operating the foster home as a single parent, she would need to obtain a new license. As it happened, whatever steps Thompson took thereafter to become re-licensed came quickly to naught because, in early October 2006, DCF received an allegation that children in Ms. Thompson's home were being physically abused.

7. Having brought up the abuse report, the undersigned believes it necessary here to interrupt the narrative flow of the findings, to call attention to some important points. The most serious charge against Thompson in this case is that she used "excessive" corporal punishment on foster children in her care. The accusation is not that Thompson was found by some other agency or investigator to have abused a foster child or children. The distinction is critical.

8. Because DCF has alleged that Thompson used corporal punishment excessively, it is not sufficient (or even necessary) for DCF to prove that someone else, after investigating allegations of abuse, concluded that Thompson had inflicted some sort of physical injury on a foster child. Rather, DCF must prove that Thompson, in fact, actually used corporal punishment, which is a different fact. Indeed, that someone else found

   Thompson guilty of physical abuse is not especially probative, in this de novo proceeding, of the salient factual dispute, namely whether Thompson used corporal punishment on foster children.2

9. Against this backdrop, the undersigned finds that, on October 9, 2006, DCF referred a report of abuse concerning Thompson to the local Child Protective Team ("CPT"). DCF requested that the CPT examine the allegedly abused foster child and make an assessment of the situation. One member of the CPT who took part in this particular assessment was Karl Dorelien. Though not a medical provider, Mr. Dorelien was present for the medical examination of the child in question, whose name is T.

   P. The examination was performed by an advanced registered nurse practitioner ("ARNP"). Mr. Dorelien testified at hearing. The ARNP did not.

10. At the time of the examination, Mr. Dorelien saw some bruising on T. P.'s forearm. T. P. told Mr. Dorelien and the ARNP that she had been struck by a belt. The CPT did not independently investigate T. P.'s statement. Mr. Dorelien and the ARNP accepted at face value T. P.'s statement about the cause of her injury. The ARNP found that T. P.'s wound was "not accidental." (Mr. Dorelien specifically denied having the expertise to ascertain whether a bruise was caused accidentally or intentionally. There is, it should be added, no persuasive

    evidence that the ARNP possesses such expertise, either.) Based on the medical examination, the CPT concluded that Thompson had struck T. P. with a belt. (It is not clear how the CPT determined that Thompson——as opposed to someone else——caused T. P.'s injury.3)

11. The evidence shows, in short, that the CPT found Thompson had caused bodily injury to T. P., a foster child then in her care, whom (the CPT determined) Thompson had hit with a belt. There is, however, no persuasive evidence upon which the undersigned independently can find that Thompson actually hit T.

    P. with a belt (or otherwise).

    
    

12. How can this be? First, no one claiming to have personal knowledge of the matter testified at hearing that Thompson had struck T. P. with a belt. (T. P. was not called as a witness.) Thompson denied having perpetrated the alleged misdeed.

13. Second, although there is competent and credible evidence (Mr. Dorelien's testimony) that T. P.'s forearm was bruised, the only evidence as to the cause of this injury was hearsay: (1) T. P.'s statements to the CPT revealing that she had been struck with a belt and (2) the ARNP's opinion (which Mr. Dorelien repeated at hearing) that the wound was not accidental. This uncorroborated hearsay is not a legally sufficient basis for any finding of fact, and even if it were,

    the undersigned, as the trier of fact, would give it too little weight to support a finding.4

14. Finally, even if there were sufficient evidence in the record to support a finding that T. P. had been struck with a belt (and there isn't), there yet would be nothing but Mr. Dorelien's ambiguous testimony concerning the substance of T. P.'s out-of-court statement, coupled with inference or speculation (based on uncorroborated hearsay), tending to establish that Thompson did the striking. Again, such "proof" is neither legally sufficient nor, in any event, logically persuasive enough to support a finding that Thompson was at fault for the child's injury.

15. DCF alleges that, in addition to striking T. P. with a belt (which allegation was not proved, as just found), Thompson also spanked J. D. F. and his brother, O. F. Both of these boys, respectively aged 8 and 7 years at the time of hearing, testified against their former foster mother. Each claimed that Thompson had spanked him with a belt.

16. As witnesses, however, the boys did not inspire confidence in the truth of their accounts. Each gave testimony that was confusing, sometimes inconsistent, and lacking in precision. Neither one seemed distinctly to remember the important events at issue, much less any of the details surrounding them, causing the undersigned to wonder, at times,

    whether the boys were independently recalling the underlying events or, rather, testifying from the memory of what someone might have told them was alleged to have occurred.

17. Doubtless many of these boys' shortcomings as witnesses stemmed from their youth and immaturity. Even so, all witnesses, regardless of age and experience, must be measured according to the same standards of credibility; the bar can be neither lowered nor raised to conform to a particular witness's capacity for giving testimony, for doing so would put a thumb on the scales of justice. At bottom, the accounts of J. D. F. and

    O. F., though not inherently incredible, nevertheless lacked sufficient indicia of reliability to produce in the undersigned's mind a firm belief or conviction that Thompson had spanked them with a belt. The undersigned hesitates to say more than that such is a possibility.

18. Against the shaky testimonies of the boys was offered the decidedly stronger testimony of their sister, Sancia Jeantil, who swore that while she was living in Thompson's home (which admittedly was not at all times her brothers were there), she never saw Thompson spank either J. D. F. or O. F. She further testified that neither of her siblings had ever complained to her about being beaten. The undersigned has accorded considerable weight to Ms. Jeantil's testimony, because it seems unlikely that she would prevaricate to protect Thompson

    at her brothers' expense. Although Ms. Jeantil was not always present in the home, her testimony, which the undersigned accepts, is persuasive proof of the pertinent negative proposition, i.e. that Thompson did not use corporal punishment on the boys.

19. Thompson herself testified at hearing and denied having used corporal punishment on J. D. F., O. F., or any other foster child. Mr. Thompson, too, testified that corporal punishment had not been used on any of the foster children in their home. Thompson's own child, J. T., said the same. None of these witnesses conclusively proved the negative of DCF's allegation regarding corporal punishment, but then again it was not Thompson's burden to disprove the charge. What these witnesses did do, effectively, was establish a credible, if simple, theory of innocence: Thompson never beat the foster children in her care.

20. The undersigned has determined, as a matter of ultimate fact, that the evidence as a whole fails to produce in the mind of the trier of fact a firm belief or conviction, without hesitancy, that Thompson used corporal punishment on any of the foster children under her care.

21. Aside from the allegations regarding corporal punishment, DCF has charged Thompson with the lesser offense of failing immediately to notify DCF that her husband had moved out

    of the home. The evidence shows, however, that Thompson satisfied her duty to notify DCF concerning changes that might affect the life and circumstances of the foster children residing in her home.

22. To recap, briefly, the material facts, Thompson informed DCF's agent, Ms. Woulard, of the possibility that she and Dalkeith might divorce; thus, DCF was on actual notice of a potential change in Thompson's marital status. Thompson likely gave DCF this advance warning in June 2006; in any case, she spoke up long before Dalkeith established a new residence and before the divorce proceeding commenced. There is no clear proof that the couple's situation had changed materially as of September 14, 2006, when Mr. Ojobor visited the home. Without question, Mr. Thompson was away at that time——but he worked for a shipping company and thus extended absences were part of his routine. Having all the evidence of record in view, the undersigned is not convinced that Mr. Thompson had "moved out" of the home as of mid-September 2006 in the sense of having permanently relocated from that residence, which is what DCF maintains. While there is some evidence that such was the case, there is also persuasive evidence that Mr. Thompson did not leave the home for good until October 2006——evidence sufficient to preclude the undersigned from finding, without hesitancy, that DCF's allegation is accurate.

    CONCLUSIONS OF LAW

    
    

23. The Division of Administrative Hearings has personal and subject matter jurisdiction in this proceeding pursuant to Sections 120.569 and 120.57(1), Florida Statutes (2007).

24. Generally, "[a] person, family foster home, or residential child-caring agency shall not receive a child for continuing full-time care or custody unless such person, home, or agency has first procured a license from the [DCF] to provide such care." § 409.175(4)(a), Fla. Stat.

25. Section 409.175(2)(f), Florida Statutes, describes the nature of such a license as follows:

    "License" means "license" as defined in s. 120.52(9). A license under this section is issued to a family foster home or other facility and is not a professional license of any individual. Receipt of a license under this section shall not create a property right in the recipient. A license under this act is a public trust and a privilege, and is not an entitlement. This privilege must guide the finder of fact or trier of law at any administrative proceeding or court action initiated by the department.

    
    

26. With certain exceptions not presently applicable, a license to operate a family foster home, "unless sooner suspended, revoked, or voluntarily returned, will expire automatically 1 year from the date of issuance . . . ." § 409.175(6)(i), Fla. Stat.

27. "Ninety days prior to the expiration date, an application for renewal shall be submitted to [DCF] by a licensee who wishes to have the license renewed. A license shall be renewed upon the filing of an application on forms furnished by the department if the applicant has first met the requirements established under this section and the rules promulgated hereunder." Id.

28. Pursuant to Section 409.175(9), Florida Statutes, DCF may deny an application to renew a family foster home license based on "[a]n intentional or negligent act materially affecting the health or safety of children in the [family foster] home" or "[a] violation of the provisions of this section or of licensing rules promulgated pursuant to this section."

29. DCF contends that Thompson's license should not be renewed, primarily because (DCF alleges) she used corporal punishment on foster children in her home. The use of corporal punishment is strictly forbidden pursuant to Florida Administrative Code Rule 65C-13.010(1)(b)5.f. ("The substitute parents must not use corporal punishment of any kind.") This same prohibition is set forth in the Agreement as well.

30. DCF further contends that denial of licensure is warranted because (according to DCF) Thompson failed promptly to inform DCF that her husband, Dalkeith, had moved out of the home. Pursuant to Florida Administrative Code Rule 65C-

    13.010(4)(g), foster parents are under a duty to "notify [DCF] regarding changes which affect the life and circumstances of the shelter or foster family." The Agreement similarly obligated Thompson to "notify [DCF] immediately of a potential change in address, living arrangements, marital status, family composition (who is in the home), employment, significant health changes, or any other condition that may affect the child's well-being."

31. In order for DCF to deny Thompson's application for the renewal of her license on either of the foregoing grounds, it is necessary that the undersigned "make specific factual findings, based on record evidence, indicating how [the complained-of conduct] violated the statutes or rules or otherwise justifie[s] the denial of [Petitioner's] application." See Mayes v. Department of Children and Family Services, 801 So. 2d 980, 982 (Fla. 1st DCA 2001).

32. DCF and Thompson agree that where an applicant for the renewal of a family foster home license has disputed DCF's preliminary decision to deny re-licensure based on allegations that the applicant engaged in wrongdoing, as here, the burden of proving the alleged wrongdoing is on DCF. See Department of Banking and Finance, Div. of Securities and Investor Protection v. Osborne Stern and Co., 670 So. 2d 932, 934 (Fla. 1996); Florida Dept. of Transp. v. J.W.C. Co., Inc., 396 So. 2d 778, 788 (Fla. 1st DCA 1981). Additionally, the parties stipulated

    at final hearing that the applicable standard of proof is the "clear and convincing" standard. See Coke v. Department of

    Children and Family Services, 704 So. 2d 726, 726 (Fla. 5th DCA 1998)("The Department agrees that in this proceeding it had the burden of proving [the applicant's] lack of entitlement to a renewal of her [family day care] license and that the evidence needed to be clear and convincing.")5

33. Regarding the standard of proof, in Slomowitz v.

    
    

    Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983), the Court of Appeal, Fourth District, canvassed the cases to develop a "workable definition of clear and convincing evidence" and found that of necessity such a definition would need to contain "both qualitative and quantitative standards." The court held that:

    clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.

    
    

    Id. The Florida Supreme Court later adopted the fourth district's description of the clear and convincing evidence standard of proof. Inquiry Concerning a Judge No. 93-62, 645 So. 2d 398, 404 (Fla. 1994). The First District Court of Appeal

    also has followed the Slomowitz test, adding the interpretive comment that "[a]lthough this standard of proof may be met where the evidence is in conflict, . . . it seems to preclude evidence that is ambiguous." Westinghouse Elec. Corp., Inc. v. Shuler Bros., Inc., 590 So. 2d 986, 988 (Fla. 1st DCA 1991), rev.

    denied, 599 So. 2d 1279 (Fla. 1992)(citation omitted).

    
    

34. As found above, the evidence adduced in support of DCF's allegations fails to meet the exacting "clear and convincing" standard.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that DCF enter a final order approving the renewal of Thompson's foster home license.

DONE AND ENTERED this 15th day of November, 2007, in Tallahassee, Leon County, Florida.

S

JOHN G. VAN LANINGHAM

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 November, 2007.

ENDNOTES

1/ The style of the case is hereby amended to conform to the evidence, which establishes that Jannifer Thompson, having been divorced from Dalkeith Thompson, is the sole Petitioner, and that she spells her first name exactly as it appears herein.

2/ The statement above presupposes that the principles of res judicata are inapplicable to the previous findings, as is true here.

3/ Mr. Dorelien hinted that T. P. named Thompson as the perpetrator, but he never said so directly; his testimony on this point is ambiguous.

4/ To be clear, the undersigned is aware that hearsay is admissible in administrative proceedings. However, unless a predicate is laid for the admission of the hearsay under a recognized exception to the hearsay rule, such "evidence" (which would be rejected as unreliable in a court of law) can be used only to supplement or explain other nonhearsay evidence (or hearsay received pursuant to an exception); even in this forum, with its relatively relaxed rules of evidence, uncorroborated hearsay is not sufficient in itself to support a finding of fact. See § 120.57(1)(c), Fla. Stat. (2007).

DCF did not attempt to introduce any of T. P.'s statements to the CPT pursuant to a hearsay exception. The undersigned nonetheless considered the possibility that the child's statements might fall under the medical diagnosis and treatment exception to the rule against hearsay. See § 90.803(3), Fla.

Stat. (2007). It is concluded that this exception is inapplicable because, according to Mr. Dorelien, whose testimony on this point the undersigned accepts as true, he and the ARNP did not examine T. P. for the purpose of providing any medical treatment. It is doubtful, therefore, that, as a matter of fact, any of T. P.'s statements were made "for purposes of medical diagnosis or treatment." Moreover, statements regarding fault or the identity of the perpetrator, when made by a child to a member of a Child Protective Team, are not admissible under Section 90.803(3), as a matter of law. See State v. Jones, 625 So. 2d 821, 823-24 (Fla. 1993). Thus, even if, in fact, T. P.

made statements to the CPT for purposes of medical diagnosis or treatment, such statements——which might arguably be admissible to prove that T. P. was hit with a belt——would be inadmissible to establish either that the injury was not accidental or that Thompson was the perpetrator. Without facts regarding fault and identity, T. P.'s statements do not incriminate Thompson and hence would have little relevance, if any.

5/ In Coke, the ALJ had found, in a proceeding to determine whether a family day care license should be renewed, that the evidence was insufficient to establish, clearly and convincingly, that a child's injury had occurred while the child was in the licensee's care. The agency had rejected and reversed this dispositive finding of fact, entering a final order denying the licensee's application for a renewal license. In affirming the agency's decision, the appellate court reasoned that the licensee had failed to prove that the injury had not happened while the child was under her supervision. Id. at 727.

Cases such as Coke, which (like the one at hand) involve allegations suggesting that an accused caregiver poses a risk to vulnerable persons in her charge, put the "clear and convincing" standard to the test. The "clear and convincing" standard, after all, is premised on the idea that it is preferable to exonerate some of the guilty than to sanction any of the innocent. This principle is easier to accept in the abstract than to apply in an actual case. Faced with the possibility of putting, e.g., young children in danger, the decision-maker is naturally tempted to err on the side of caution. While this urge is generally admirable and appropriate in many contexts, it is not proper in an adversarial proceeding such as this because it threatens to turn on its head the raison d'être for the "clear and convincing" standard, which is to protect, not potential victims, but the accused. Ultimately, the temptation to protect others at the expense of the accused must be resisted if the law is to be obeyed.

In the undersigned's opinion, the Coke court succumbed to the understandable temptation to protect the children and consequently misapplied the "clear and convincing" standard of proof. The court's rationale effectively put the burden on the licensee to disprove her culpability, subverting the purpose of the clear and convincing standard: namely, to reduce the margin for error in favor of the party accused of wrongdoing. The case is cited here solely for its statement regarding the burden and

standard of proof where, as here, the agency has agreed that it must satisfy a stringent evidential standard.

COPIES FURNISHED:

Peter T. Gianino, Esquire Grazi & Gianino

217 East Ocean Boulevard Stuart, Florida 34994

Laurel Hopper, Esquire Department of Children and

Family Services

337 North Highway 1, Suite A Fort Pierce, Florida 34650

Gregory Venz, Agency Clerk Department of Children

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

Tallahassee, Florida 32399-0700

Robert A. Butterworth, Secretary Department of Children

and Family Services Building 1, Room 202

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

John J. Copelan, 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: 07-002643

Orders for Case No: 07-002643