STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DENINE PITTMAN, )

)

Petitioner, )

)

vs. ) Case No. 97-3666

)

DEPARTMENT OF CHILDREN )

AND FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Notice was provided and on October 17, 1997, a formal hearing was held in this case. Authority for conducting the hearing is set forth in Sections 120.569 and 120.57(1), Florida Statutes (Supp. 1996). The hearing location was the Bay County Courthouse, 300 East Fourth Street, Panama City, Florida. The hearing was conducted by Charles C. Adams, Administrative Law Judge.

APPEARANCES

For Petitioner: Denine Pittman, pro se

Apartment D43

801 West 13th Street

Panama City, Florida 32401

For Respondent: John R. Perry, Esquire

Department of Children and Family Services

Suite 252-A

2639 North Monroe Street Tallahassee, Florida 32399-2949

STATEMENT OF THE ISSUES

Is Petitioner entitled to be exempt from disqualification to work in a position of trust or responsibility, having been declared ineligible to work in that position by virtue of offenses involving child abuse and contributing to the dependency of a minor?

PRELIMINARY STATEMENT

Based upon background screening conducted by Respondent directed to Petitioner who was working in the Phoenix Preschool in Panama City, Florida, caring for children, information concerning the aforementioned offenses was discovered. On

July 24, 1997, Respondent gave Petitioner notice that it had declared Petitioner ineligible to work in a position of special trust. The notice allowed Petitioner to request an exemption from disqualification. Petitioner took advantage of that opportunity by making a request for hearing to prove her entitlement to be exempt from disqualification. That request was received by Respondent on August 6, 1997.

On August 11, 1997, the Division of Administrative Hearings received notice from Respondent requesting the Division to assign the case to an Administrative Law Judge to conduct a fact-finding hearing pursuant to Section 120.57(1), Florida Statutes

(Supp. 1996). That hearing took place on the date described.

At hearing Petitioner testified and presented Gloria Lawrence and Frances Frazier as her witnesses. Petitioner's

Exhibits 1-13 were admitted. Respondent presented Sgt. Stacy Strickland as its witness. Respondent's Exhibit 1 was admitted.

The parties were provided the opportunity to submit proposed recommended orders by October 27, 1997, there being no hearing transcript. Respondent timely submitted a proposed recommended order. Petitioner has not submitted a proposed recommended order.

FINDINGS OF FACT

1. Petitioner has two children, M.B. and D.P. On February 11, 1993, those children were two years old and eight months old, respectively. Both children were residing with Petitioner. At that time Petitioner and the children lived in

   Gulf County, Florida. Around 8:00 p.m. to 9:00 p.m. on February 11, 1993, Petitioner decided to leave her apartment and go to a nearby store. At that time she left D.P. in the care of Sabina Daniels, Petitioner's step-sister, who was thirteen years old on that date. The Petitioner took M.B. to her neighbor's apartment and left that child with Dianna Harrison, an adult.

2. However, the Gulf County Sheriff's office received a call around 10:30 p.m. on February 11, 1993, indicating that a child had been left unattended at the Pine Ridge Apartments where Petitioner resided. Officer Stacy Strickland, now a Sergeant, went to Petitioner's apartment around 10:34 p.m. and tried to get someone to answer the door to the apartment. No one answered. Consequently, Officer Strickland contacted the apartment manager

   who opened the door. Officer Strickland discovered D.P. standing in a baby bed. No other person was in the apartment at that time. Officer Strickland sought the assistance of other persons to help provide emergency care to the child. While waiting for that assistance, Officer Strickland remained in the apartment for fifteen to twenty minutes. When Officer Strickland and other officials departed Petitioner's apartment, they left a note for the Petitioner to call the Gulf County Sheriff's office concerning her child D.P. Petitioner called the Gulf County Sheriff's office at around 12:00 a.m., February 12, 1993.

   Petitioner came to the Gulf County Sheriff's office around 12:20 a.m., on February 12, 1993. At that time, Petitioner was placed under arrest for aggravated child abuse for having left

   D.P. unattended. Following her arrest, Officer Strickland read the Petitioner her rights under the Miranda decision, to include the right to seek counsel to aid her in confronting the charge.

3. Although Petitioner was less than forthcoming during the hearing, concerning the disposition of the charges that arose from the incident in which D.P. had been left unattended, it is clear that Petitioner voluntarily entered a plea of guilty to child abuse and contributing to the dependency of a minor in the case of State of Florida v. Denine Pittman, in the County Court, in and for Gulf County, Florida, Number 93-133M. A judgment and sentence in that case was entered on March 3, 1993, requiring the Petitioner to serve three months' probation in which she would

   pay $30 per month for supervisory fees and was required to make monthly contacts with a probation officer. In addition, Petitioner was required to pay a fine in the amount of $214. It can be properly inferred that Petitioner complied with requirements in the judgment and sentence.

4. Petitioner's assertions at hearing that she only left

   
   

   D.P. on the night in question for 30 minutes, that she had never been advised of her Miranda rights by Officer Strickland on February 12, 1993, and that she did not realize that she could have contested the charges through a trial are rejected.

5. In 1995, Petitioner moved from Gulf County to Panama City, Florida.

6. In August 1996, Petitioner was working in a child care facility in Panama City known as Phoenix Preschool. In her position she was providing direct care to children and was subjected to background screening in accordance with Chapter 435, Florida Statutes. Through the screening process Respondent discovered the disposition in Case No. 93-133M, leading to Petitioner's disqualification to work in a position of special trust with children and the contest of that determination through Petitioner's request for an exemption from that disqualification.

7. In her testimony at hearing Petitioner expressed her desire to continue to work with children as an employee in a child care facility.

8. The record does not reveal that Petitioner has had other circumstances involving inappropriate behavior involving her own children or claims of inappropriate behavior or treatment of other children for whom she has rendered care.

9. On November 11, 1988, Petitioner was provided a certificate indicating the successful completion of twenty hours of child care training offered by the Department of Health and Rehabilitative Services and the Department of Education.

10. On September 28, 1996, Petitioner received a certificate of completion of Dr. Jean Feldman's Classroom Management Workshop. The course lasted six hours. By the nature of the appearance of the certificate it is found to relate to training to assist in caring for children.

11. On September 30, 1996, Petitioner received a certificate from the Department of Health and Rehabilitative Services and the Department of Education for completing a ten- hour course for developmentally appropriate practices for young children.

12. On November 30, 1996, Petitioner received a certificate of completion of "Mr. Al's" course on "Music, Movement and More." This course lasted six hours. By the nature of the appearance of the certificate it is found to relate to children's issues.

13. In 1996, in relation to her position of teacher-aide for the Phoenix Preschool, Petitioner received training from the

    Department of Health and Rehabilitative Services related to child care in-service.

14. Ms. Gloria Lawrence testified at the hearing. She worked with Petitioner at the Phoenix Preschool, and found that Petitioner did a good job with children, in that Petitioner got

    
    

    along with children at the Preschool. Ms. Lawrence observed that Petitioner was trustworthy and responsible with those children.

    Ms. Lawrence's testimony is credited.

    
    

15. Ms. Frances Frazier testified at the hearing. Ms. Frazier is a close friend of Petitioner and has known Petitioner during the course of Petitioner's life. Ms. Frazier finds the Petitioner to be reliable and responsible and to be good with children and believes that Petitioner has learned from the mistake that Petitioner made which formed the basis for Petitioner's disqualification to work in a position of special trust. Ms. Frazier has known Petitioner to baby-sit for Ms. Frazier's grandchildren. Ms. Frazier has not found the Petitioner to abuse children. The only incident that Ms. Frazier is aware of concerning the Petitioner leaving children unattended was the occasion under discussion here. Ms. Frazier's testimony is credited.

16. In addition, Petitioner presented letters from Ms. Vanessa Fennell, Ms. Annie S. Fields, Ms. Dianna Harrison, Ms. Beverly Daniels, Ms. Charlotte L. Medley, Ms. Candy Robinson, and

    Pastor Shirley Jenkins concerning Petitioner's basic personality as a concerned person for children and the elderly.

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties in accordance with Sections 120.569, 120.57(1), and 435.07(3), Florida Statutes (Supp. 1996).

18. Petitioner seeks to provide "child care" as that term is defined at Section 402.302(3), Florida Statutes. She seeks to provide the care in a "child care facility" as defined at Section 402.302(4), Florida Statutes. Her continued employment in the child care facility would be as part of "child care personnel" as defined at Section 402.302(8), Florida Statutes. For those reasons, Petitioner was subject to being screened for the possibility that she had been found guilty of, regardless of adjudication, or entered a plea of nolo contendere, or guilty to, a number of criminal offenses to include an offense related to child abuse as defined at Section 827.04, Florida Statutes. The specific basis for the screening for that offense is set forth in Section 435.04(2)(v), Florida Statutes.

19. As a consequence of Petitioner's plea of guilty, in which the adjudication of guilt was withheld, pertaining to misdemeanor child abuse in Case No. 93-133M, Petitioner was disqualified to work with children. Given that the offense involved a misdemeanor, Petitioner was entitled to seek an

    exemption from her disqualification to be employed to work with children. See Section 435.07(1)(b), Florida Statutes. To gain the exemption, Petitioner must demonstrate by clear and convincing evidence that she should not be disqualified from her employment with the Phoenix Preschool to provide child care. In particular, Petitioner and other 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.

    Section 435.07(3), Florida Statutes. Pursuant to that same section, Petitioner may contest the preliminary decision by Respondent to deny her exemption from disqualification through procedures set forth in Chapter 120, Florida Statutes. The hearing that has been conducted in this case was to allow the parties to contest facts associated with the original request for exemption.

20. The circumstances involved with the child abuse for allowing D.P. to be left unattended are significant given the age of the child and the time during which the child was not cared for. Fortunately, the child did not suffer injury because of Petitioner's lack of foresight in leaving a minor in charge of

her child. Sufficient time has passed since the incident to gauge Petitioner's rehabilitation. In association with that criterion, nothing has transpired in the interim which would tend to question Petitioner's responsibility in directly caring for her children or those of other persons. Petitioner's history since the incident has been exemplary as evidenced by the esteem in which she is held by other persons who know her. Additional evidence points out that she had continued to keep abreast of the requirements for being a well-trained child care employee. This, together with the esteem in which she is held by persons who are mindful of her dealings with children, demonstrates that Petitioner would not present a danger if continued employment as a child care giver were allowed. While Petitioner's discussion in her testimony concerning the charges that were brought against her for leaving D.P. unattended showed a lack of candor that is troubling, when considering the criteria for deciding whether Petitioner should be exempt from disqualification to work in a position of special trust with children, Petitioner has made the case by clear and convincing evidence.

RECOMMENDATION

Upon consideration of the fact finding and conclusions of law reached, it is

RECOMMENDED that a final order be entered which grants Petitioner an exemption from disqualification to be employed in a position of special trust to work with children.

DONE AND ENTERED this 13th day of November, 1997, in Tallahassee, Leon County, Florida.

CHARLES C. ADAMS

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 13th day of November, 1997.

COPIES FURNISHED:

John R. Perry, Esquire Department of Children

and Family Services Suite 252-A

2639 North Monroe Street Tallahassee, Florida 32399-2949

Denine Pittman Apartment D43

801 West 13th Street

Panama City, Florida 32401

Gregory D. Venz, Agency Clerk Department of Children

and Family Services Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Richard A. Doran, Esquire 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: 97-003666

Orders for Case No: 97-003666