STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND ) FAMILY SERVICES, )

)

Petitioner, )

)

vs. ) Case No. 97-5365C

)

G. K., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a Section 120.57(1) hearing was held in this case on March 6 and 18, 1998, by video teleconference at sites in Miami and Tallahassee, Florida, before Stuart M. Lerner, a duly designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: William E. Stacey, Jr., Esquire

M. Robin Porter, Esquire Department of Children and

Family Services

401 Northwest Second Avenue Suite N-1014

Miami, Florida 33128

For Respondent: Ben Patterson, Esquire

Patterson & Traynham Post Office Box 4289

Tallahassee, Florida 32315 STATEMENT OF THE ISSUES

Whether FPSS Report No. 96-130813 should be amended or expunged, as requested by Respondent.

PRELIMINARY STATEMENT

Respondent is named as the alleged perpetrator in a report of adult "abuse" and "neglect" (FPSS Report No. 96-130813) which the Department of Children and Family Services (Department) has classified as "proposed confirmed." The report identifies

1. P., a forensic patient at South Florida Evaluation and Treatment Center, a Department-operated forensic facility where Respondent was employed at the time of the alleged "abuse" and "neglect," as the alleged victim of Respondent's purported "abuse" and "neglect." According to the report, Respondent "got mad at [R. P.], picked him up and slammed his body on the ground," causing him to sustain an injury. Respondent is seeking to have this report amended or expunged. His request for amendment or expunction was preliminarily denied by the Department. By letter dated October 28, 1997, Respondent requested a "[f]ormal [a]dministrative [h]earing" on the matter. On November 17, 1997, the case was referred to the Division of Administrative Hearings (Division) for the assignment of a Division Administrative Law Judge to conduct the "[f]ormal [a]dministrative [h]earing" Respondent had requested.

   As noted above, the hearing was conducted by the undersigned on March 6 and 18, 1998. Fourteen witnesses testified at the hearing.1 In addition to the testimony of these fourteen

   witnesses, four exhibits were offered and received into evidence (Petitioner's Exhibits 1, 3,2 9, and 12. Among these exhibits was a copy of FPSS Report No. 96-130813, which was admitted pursuant to Section 415.1075(2)(e), Florida Statutes, which mandates that the Department's investigative report "be considered competent evidence at the [Chapter 120] hearing" on the alleged perpetrator's amendment/expunction request.

   At the close of the evidentiary portion of the hearing, the undersigned announced on the record that proposed recommended orders had to be filed no later than 30 days following the undersigned's receipt of the complete transcript of the hearing. The undersigned received the first volume of the hearing transcript on April 15, 1998, and second volume of the hearing transcript on April 27, 1998. The Department and Respondent filed their proposed recommended orders on May 27, 1998, and June 1, 1998, respectively. These post-hearing submittals have been carefully considered by the undersigned.

   FINDINGS OF FACT

   
   

   Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made:

   1. South Florida Evaluation and Treatment Center (SFETC) is a state-operated facility that provides mental health services to forensic patients.

   2. Respondent was formerly employed at SFETC.

   3. He began his employment at SFETC in October 1992, after graduating from Bethune-Cookman College in Daytona Beach, Florida, where, before sustaining a serious knee injury, he played offensive and defensive tackle on the football team.

   4. His employment at SFETC was terminated in August 1997, as a result of an incident at the facility which occurred on December 2, 1996.

   5. At the time of the incident, Respondent was working the 7:45 a.m. to 4:15 p.m. shift as a UTR (Unit Treatment Rehabilitation) Specialist3 responsible for assisting and monitoring the activities of patients in Unit Seven South (which is located on the seventh floor of the facility).

   6. One of these patients was R. P.

      
      

   7. R. P. is short and stocky. He is considerably smaller (in terms of both height and girth) than Respondent.

   8. At the time of the incident R. P. was on medication that made him more sluggish than he otherwise would be.

   9. The incident occurred in the recreational therapy yard at approximately 3:30 p.m. when Respondent was escorting R. P. and other patients back to the unit and noticed that R. P. was not wearing his identification badge.

   10. Respondent located the identification badge in R. P.'s pocket.

   11. As Respondent was reaching into R. P.'s pocket, R. P. grabbed the badge and threw it on the ground.

   12. After picking up the badge, Respondent attempted to pin it on R. P.'s shirt. R. P. resisted Respondent's efforts and the badge again wound up on the ground.

   13. Respondent, with his back to R. P., bent down to pick up the badge a second time. As Respondent was bending down,

       R. P. jumped on Respondent's back. Concerned that he was in a vulnerable position, Respondent stood up quickly, causing R. P. to fall and hit the back of his head on the ground. Respondent did not intend to harm or injure R. P. He was simply trying to protect himself. While it is unfortunate that R. P. was injured as a result of the incident, it has not been shown that, in quickly standing up when R. P. jumped on his back, Respondent breached any standard of care that a UTR Specialist with his training and experience was required to follow.

   14. R. P. (who was bleeding from the back of his head) was taken in a wheelchair to the facility's medical clinic where his wound was closed (with sutures) and bandaged.

   15. Before leaving work that day, Respondent provided his supervisor with a written report of the incident in which he and

       R. P. had been involved earlier that day in the recreational therapy yard.

   16. In his report, Respondent stated that R. P. had hit the back of his head on a nearby wall. In making this statement (which was inaccurate inasmuch as R. P. had hit the back of his head, not against the wall, but on the ground), Respondent was

       relying on what someone else had told him. He himself had not seen R. P. fall. By the time he had stood up and turned around,

       R. P. had already landed on the ground.

       
       

       CONCLUSIONS OF LAW

       
       

   17. Sections 415.101 through 415.113, Florida Statutes, contain the "Adult Protective Services Act" (Act). Section 415.101(1), Florida Statutes.

   18. The Act is designed to protect disabled adults and elderly persons from abuse, neglect and exploitation. Section 415.101(2), Florida Statutes.

       
       

   19. A "proposed confirmed report" of adult "abuse" or "neglect" is described in Section 415.102(26), Florida Statutes, as a report "which is made . . . when an adult protective investigation alleges that there is a preponderance of evidence that abuse, neglect, or exploitation occurred and which identifies the alleged perpetrator."

   20. Adult "abuse" is defined in the Act as follows:

       
       

       "Abuse" means the nonaccidental infliction of physical or psychological injury or sexual abuse upon a disabled adult or an elderly person by a relative, caregiver, or household member, or an action by any of those persons which could reasonably be expected to result in physical or psychological injury, or sexual abuse of a disabled adult or an elderly person by any person. "Abuse" also means the active encouragement of any person by a relative, caregiver, or household member to commit an act that inflicts or could

       reasonably be expected to result in physical or psychological injury to a disabled adult or an elderly person.

       
       

       Section 415.102(1), Florida Statutes.

   21. Adult "neglect" is defined in the Act as follows: "Neglect" means the failure or omission on

       the part of the caregiver or disabled adult or elderly person to provide the care, supervision, and services necessary to maintain the physical and mental health of the disabled adult or elderly person, including, but not limited to, food, clothing, medicine, shelter, supervision, and medical services, that a prudent person would consider essential for the well-being of a disabled adult or an elderly person. The term "neglect" also means the failure of a caregiver to make a reasonable effort to protect a disabled adult or an elderly person from abuse, neglect, or exploitation by others. "Neglect" is repeated conduct or a single incident of carelessness which produces or could reasonably be expected to result in serious physical or psychological injury or a substantial risk of death.

       Section 415.102(20), Florida Statutes. In order to determine whether a caregiver has committed "neglect," within the meaning of Section 415.102(20), Florida Statutes, it is necessary to measure the caregiver's actions against "an objective standard, which may be defined by [statute or] rule or by proof4 of general acceptance within the [caregiver's] industry." K.M.T. v. Department of Health and Rehabilitative Services, 608 So. 2d 865, 873 (Fla. 1st DCA 1992).

   22. A "disabled adult," as that term is used in the Act, means "a person 18 years of age or older who suffers from a condition of physical or mental incapacitation due to a

developmental disability, organic brain damage, or mental illness, or who has one or more physical or mental limitations that substantially restrict the ability to perform the normal activities of daily living." Section 415.102(10), Florida Statutes.

23 An "elderly person," as that term is used in the Act, means "a person 60 years of age or older who is suffering from the infirmities of aging as manifested by advanced age or organic brain damage, or other physical, mental, or emotional dysfunctioning to the extent that the ability of the person to provide adequately for the person's own care or protection is impaired." Section 415.102(11), Florida Statutes.

1. A "caregiver," as that term is used in the Act, is defined in Section 415.102(4), Florida Statutes, as follows:

   "Caregiver" means a person who has been entrusted with or has assumed the responsibility for frequent and regular care of or services to a disabled adult or an elderly person on a temporary or permanent basis and who has a commitment, agreement, or understanding with that person or that person's guardian that a caregiver role exists. "Caregiver" includes, but is not limited to, relatives, household members, guardians, neighbors, and employees and volunteers of facilities as defined in subsection (13). For the purpose of departmental investigative jurisdiction, the term "caregiver" does not include law enforcement officers or employees of municipal or county detention facilities or the Department of Corrections while acting in an official capacity.

2. A "facility," as that term is used in the Act, is defined in Section 415.102(13), Florida Statutes, as follows:

   "Facility" means any location providing day or residential care or treatment for disabled adults or elderly persons. The term "facility" may include, but is not limited to, any hospital, training center, state institution, nursing home, assisted living facility, adult family-care home, adult day care center, group home, or mental health treatment center."

3. It appears that, at the time in question in the instant case, R. P. was a "disabled adult," within the meaning of Section 415.102(10), Florida Statutes, and that, as a UTR Specialist at SFTEC, Respondent was a "caregiver," within the meaning of Section 415.102(4), Florida Statutes.

4. A "caregiver," such as Respondent, who is identified as the alleged perpetrator in a "proposed confirmed report" of adult "abuse" or "neglect" may request that the report be amended or expunged. Section 415.1075(1)(a), Florida Statutes. "The request must be received by the [D]epartment no later than 60 days after the alleged perpetrator receives notice of the proposed confirmed classification." Section 415.1075(1)(b), Florida Statutes. If such a timely request is not made, the report becomes a "confirmed report." Section 415.1075(1)(c), Florida Statutes. (The alleged perpetrator, however, "may, within 1 year after the classification of the report as confirmed, request the [D]epartment to set aside a confirmed report when it can be shown that the failure to ask for amendment or expunction was due to excusable neglect or fraud. The standard for excusable neglect or fraud [is] as provided in

   the Florida Rules of Civil Procedure."5 Section 415.1075(5), Florida Statutes.)

5. If the Department denies the amendment/expunction request or does not act within 30 days of receiving the request, or if the alleged perpetrator otherwise disagrees with the Department decision, the alleged perpetrator has the right, upon making a timely request, to an administrative hearing. Section 415.1075(2)(a) and (b), Florida Statutes.

6. At the administrative hearing, the Department must "prove by a preponderance of the evidence that the alleged perpetrator committed the abuse [or] neglect" described in the report. Section 415.1075(2)(e), Florida Statutes.

7. At Respondent's request, such an administrative hearing was held in the instant case. An examination of the record reveals that the Department's evidentiary presentation at hearing was insufficient to meet its statutorily mandated burden of proof.

8. FPSS Report No. 96-130813, the report which is the subject of Respondent's amendment/expunction request, alleges that Respondent committed "abuse" and "neglect," within the meaning of the Act, when, on December 2, 1996, while working as a UTR Specialist at SFETC, he "got mad" at R. P., one of the forensic patients at the facility, and "picked [R. P.] up and slammed [R. P's] body on the ground," thereby injuring R. P.

9. While it is uncontroverted that R. P. sustained an injury as a result of action taken by Respondent during an

   encounter between R. P. and Respondent at SFETC on December 2, 1996, the preponderance of the record evidence does not reflect that the injury was inflicted by Respondent "nonaccidentally," nor does it establish that what Respondent did (which resulted in

   R. P.'s injury) was not what a reasonably prudent caregiver with Respondent's training and experience would have done under similar circumstances.

10. The Department presented the testimony of three witnesses who claimed to have witnessed the December 2, 1996, encounter between R. P. and Respondent: V. D. and P. C., who were at the time of the encounter (and have remained since the incident) forensic patients at SFETC; and Kurt Schwinke, a security guard at the facility. In its proposed recommended order, the Department argues that "there were [only] small differences in the testimony of the[se] three eyewitnesses." A review of these witnesses' testimony, however, reveals otherwise. All three did testify that Respondent picked R. P. up off the ground during the incident, but Schwinke testified that Respondent did so only after R. P., from behind, had grabbed Respondent around the waist while Respondent was bending down, whereas V. D. and P. C. testified that at no time was R. P. physically aggressive toward Respondent. Furthermore, Schwinke testified that it appeared to him that Respondent accidentally dropped R. P.

    V. D. and P. C., on the other hand, testified that Respondent threw R. P. to the ground. It is also significant to note that,

    when questioned on cross-examination about his testimony concerning Respondent picking R. P. up off the ground, Schwinke conceded that "[m]aybe I misjudged what I saw."

11. Respondent testified in his own defense. He denied picking R. P. up off the ground during the December 2, 1996, incident. It was Respondent's testimony that R. P. had jumped onto his back while he was bending over to retrieve R. P.'s identification badge and, when he stood up, R. P. accidentally fell off his back and onto the ground and injured himself. This testimony concerning the incident was corroborated by two eyewitnesses, Joanne Jones and Sean Futch, both UTR Specialists at SFETC, who testified on Respondent's behalf,6 and it has been accepted by the undersigned7 because, in the undersigned's opinion, it is more credible than any of the versions of the incident presented by the Department's witnesses.8

12. Respondent did not intend to injure R. P when he quickly stood up after R. P. had jumped on his back; nor has it been shown that, in taking such defensive action, Respondent deviated from any standard of care that a UTR Specialist with his training and experience was required to follow. Accordingly, although his quickly standing up may have resulted in injury to R. P., such action constituted neither adult "abuse," nor "neglect," within the meaning of the Act.

13. In view of the foregoing, Respondent's request for amendment or expunction should be granted and FPSS Report No. 96- 130813 (which alleges that Respondent's conduct during his December 2, 1996, encounter with R. P. did amount to adult "abuse" and neglect," within the meaning of the Act) should be reclassified as an "unfounded" report, that is, "a report made pursuant to s. 415.1034 in which the [D]epartment determines that no evidence of abuse, neglect, or exploitation exists." Section 415.102(34), Florida Statutes.

RECOMMENDATION

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

RECOMMENDED that the Department enter a final order granting Respondent's request for amendment or expunction and reclassifying FPSS Report No. 96-130813 as "unfounded."

DONE AND ENTERED this 22nd day of June, 1998, in Tallahassee, Leon County, Florida.

STUART M. LERNER

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

Filed with the Clerk of the Division of Administrative Hearings this 22nd day of June, 1998.

ENDNOTES

1 Several of these witnesses gave eyewitness testimony concerning the incident involving Respondent and R. P. Among the eyewitnesses who testified on behalf of the Department was P. C., who is now, and was at the time of the incident, a forensic patient at the South Florida Evaluation and Treatment Center.

The undersigned determined that, contrary to the argument advanced by Respondent, P. C. was competent to testify notwithstanding that a circuit court judge had found

P. C. incompetent to stand trial on previously filed criminal charges and that P. C. had not yet been tried on these charges. See Diamond R. Fertilizer, 567 So. 2d 451, 454 (Fla. 1st DCA 1990)("There is no authority to deny an incompetent individual the right to testify so long as he is capable of being understood and capable of testifying truthfully."); Goldstein v. State, 447 So. 2d 903, 905 (Fla. 4th DCA 1984)(jury allowed to consider testimony of witness who "had been charged with a crime, adjudicated incompetent, and involuntarily committed to the state hospital as a paranoid schizophrenic"); United States v. Lightly, 677 F.2d 1027, 1028 (4th Cir. 1982)("The defense also attempted to have McDuffie testify. McDuffie would have testified that only he and not Lightly had assaulted McKinley. The court ruled McDuffie incompetent to testify because he had been found to be criminally insane and incompetent to stand trial, and was subject to hallucinations. We believe this was error and that Lightly is entitled to a new trial. Every witness is presumed competent to testify, Fed.R.Evid. 601, unless it can be shown that the witness does not have personal knowledge of the matters about which he is to testify, that he does not have the capacity to recall, or that he does not understand the duty to testify truthfully. This rule applies to persons considered to be insane to the same extent that it applies to other persons. United States v. Lopez, 611 F.2d 44 (4th Cir. 1979); Shuler v. Wainwright, 491 F.2d 1213, 1223 (5th Cir. 1974). In this case, the testimony of McDuffie's treating physician indicated that McDuffie had a sufficient memory, that he understood the oath, and that he could communicate what he saw. The district judge chose not to conduct an in camera examination of McDuffie. On this record, it was clearly improper for the court to disqualify McDuffie from testifying."); United States v. McRary, 616 F.2d 181, 183 (5th Cir. 1980)("The defense tendered Mrs. McRary as a witness to show her husband's state of mind during the days and weeks immediately prior to the trip to Cuba in support of the defense of insanity. The trial court ruled that she was not competent as a witness. She did not take the stand. The court apparently reasoned that if the wife were not competent to stand trial she was not competent to testify. . . . We hold that the trial court was too peremptory in ruling that Mrs. McRary could not testify. The defense should have been afforded an opportunity to make a

proffer and a record to determine the witness' ability to testify."); State v. Miller, 359 N.W.2d 508, 511 (Iowa Ct. App. 1984)("The record reflects that the trial court examined Simmons extensively about her recollection of the event in question and her understanding of telling the truth. Her responses to the court's questions demonstrate that it was entirely reasonable for the trial court to conclude she was competent to testify. The fact that she is retarded and has been adjudicated incompetent for some other purpose is not determinative."); State v.

Strickland, 1988 WL 137458 (Ohio Ct. App. 1988)("The test for incompetency to stand trial and the competency of a witness to testify are not the same. Although evidence that a proposed witness is incompetent to stand to stand trial is relevant [to] the issue of whether he is also incompetent to testify as a witness, a finding that the witness is incompetent to stand trial as an accused does not necessarily preclude a finding by the court that the witness is competent to testify."). It should be noted, however, that a determination that a witness is competent to testify is not tantamount to a finding that the witness' testimony should be believed. See State v. Camejo, 641 So. 2d 109, 112 (Fla. 5th DCA 1994), aff'd, 660 So. 2d 242 (Fla.

1995)("Capacity and credibility are distinguishable. Capacity is required before a witness may testify. Credibility is an issue for the fact-finder to determine."). The testimony of a witness who has been deemed competent to testify may, notwithstanding such determination of competency, be found to lack credibility because of, among other reasons, the witness' history of mental illness. See Hawkins v. State, 326 So. 2d 229, 231 (Fla. 3d DCA 1976)("We believe that appropriate psychiatric testimony to the effect that Drewsella's propensity to tell the truth was affected by her mental and emotional condition would have been relevant and admissible for the purpose of impeaching her credibility [as a witness]."); United States v. Partin, 493 F.2d 750, 762 (5th Cir. 1974)("Partin had the right to attempt to challenge Rogers' credibility with competent or relevant evidence of any mental defect or treatment at a time probatively related to the time period about which he [Rogers] was attempting to testify."); State v. Dumaine, 783 P.2d 1184, 1198 (Ariz. 1989("The use of a witness's mental condition for impeachment purposes is proper if there is an indication that the mental condition affected the truth of his testimony."); State v. Randolph, 462 A.2d 1011, 1021 (Conn. 1983)("The witness' mental competency was clearly relevant to her credibility.").

The testimony of two other eyewitnesses, Joanne Jones and Sean Futch, who testified on behalf of Respondent, was also the subject of controversy at the final hearing. The Department contended that these witnesses should not be permitted to testify because Respondent had not timely disclosed, in advance of hearing, his intention to call these witnesses to testify on his

behalf. Inasmuch as Respondent had not violated any directive of the undersigned or any statutory or rule requirement in failing to disclose his intentions regarding the use of these witnesses sooner than he had, the undersigned overruled the Department's objection and allowed these witnesses to testify. See Fogel v.

Mirmelli, 413 So. 2d 1204, 1206 (Fla.3d DCA 1982)("It is error for a trial court to exclude a witness from testifying at trial for failure of the party calling him to list such witness on a pre-trial catalog when the listing of such witness was not specifically required by pre-trial order of the court."); Mall Motel Corporation v. Wayside Restaurants, Inc., 377 So. 2d 41, 43 (Fla. 3d DCA 1979)("It is equally well-settled that a trial court has no authority to exclude a witness from testifying at trial for failure of the party calling him to list the name of such witness on a pretrial catalog when the listing of such witness was not specifically required by a pretrial discovery order of the court."); Lanai Development Corporation v. Berry, 373 So. 2d 441, 442 (Fla. 3d DCA 1979)("At the trial of this cause, the county court judge excluded a certain witness [a records custodian of a bank] called by the petitioner because the petitioner had not furnished the witness' name on a pre-trial catalog. Our review of the record, however, reveals that no order was ever entered by the county court requiring such a pre- trial catalog. In the absence of such an order, the law is clear that neither party is required to file a pre-trial catalog containing a witness list, that it is error for the trial court to exclude a witness for failure of the party calling him to file such a pre-trial catalog, and that such error is reversible where the excluded witness is critical to the case of the party calling him."); Clarke v. Sanders, 363 So. 2d 843 (Fla. 4th DCA 1978)("In this malpractice case the trial court erred in refusing to allow in evidence at trial the depositions of two doctors whose testimony was quite relevant to the issue of malpractice. The reason the trial court gave for disallowing the introduction of the depositions into evidence was the plaintiff's failure to list the names of the doctors on a pretrial statement. We find error because there was no pretrial order requiring the parties to list witnesses on a pretrial statement ").

2 Petitioner's Exhibit 3 contains two photographs (numbered 1 and 5). The other photographs (numbered 2, 3, 4, 6 and 7) that were originally a part of Petitioner's Exhibit 3 were not offered into evidence by the Department and therefore have not been considered by the undersigned.

3 Respondent initially was employed at SFETC as a security guard.

4 Such proof must be in the form of expert testimony establishing the requisite standard of care. See K.M.T. v. Department of Health and Rehabilitative Services, 608 So. 2d 865, 873 n.5 (Fla. 1st DCA 1992).

5 "A defendant's failure to retain counsel or a defendant's failure to understand the legal consequences of his inaction is not excusable neglect" warranting the setting aside of a default judgment under Rule 1.540, Florida Rules of Civil Procedure. Goldome v. Davis, 567 So. 2d 909, 910 (Fla. 2d DCA 1990); see also Schauer v. Coleman, 639 So. 2d 637, 639 (Fla. 2d DCA 1994)("[A]bsent other justifications, failure to hire counsel does not qualify as excusable neglect.").

6 In its proposed recommended order, the Department erroneously states that "[n]o other witness before the court supported

G. K.'s version of the incident."

7 While the undersigned has credited this portion of Respondent's testimony, that is not to say that the undersigned finds all parts of Respondent's testimony to be believable. The undersigned finds it difficult to believe that, while Respondent was playing college football as an offensive and defensive tackle, he could only bench press about 150 pounds, as he testified at hearing. See Myron v. South Broward Hospital District, 703 So. 2d 527, 531 (Fla. 4th DCA 1997)("[A] jury is the judge of the credibility of the witnesses and the evidence, and a jury is free to believe parts of a witness' testimony and disbelieve other parts."); Wynne v. Adside, 163 So. 2d 760, 763 (Fla. 1st DCA 1964)("The foregoing analysis of the alternative courses open to the jury is defective in that it overlooks the obvious and basic principle that a jury is not required to accept a witness' testimony in its entirety or wholly reject it, for the jury may accept such portions of a witness' testimony as they may deem credible and consistent with the proven circumstances and probabilities and at the same time reject other portions which they deem incredible or

inconsistent with the proven circumstances and probabilities.").

8 In making this credibility determination, the undersigned has taken into consideration the arguments made by the Department in its proposed recommended order concerning the matter.

COPIES FURNISHED:

William E. Stacey, Jr., Esquire

M. Robin Porter, Esquire

Department of Children and Family Services

401 Northwest Second Avenue Suite N-1014

Miami, Florida 33128

Ben Patterson, Esquire Patterson & Traynham Post Office Box 4289

Tallahassee, Florida 32315

Gregory D. Venz, Agency Clerk

Department of Children and Family Services 1317 Winewood Boulevard

Building Two, Suite 204Z 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.

1 Several of these witnesses gave eyewitness testimony concerning the incident involving Respondent and R. P. Among the eyewitnesses who testified on behalf of the Department was P. C., who is now, and was at the time of the incident, a forensic patient at the South Florida Evaluation and Treatment Center. The undersigned determined that, contrary to the argument advanced by Respondent, P. C. was competent to testify notwithstanding that a circuit court judge had found

P. C. incompetent to stand trial on previously filed criminal charges and that P. C. had not yet been tried on these charges. See Diamond R. Fertilizer, 567 So. 2d 451, 454 (Fla. 1st DCA 1990)("There is no authority to deny an incompetent individual the right to testify so long as he is capable of being understood and capable of testifying truthfully."); Goldstein v. State, 447 So. 2d 903, 905 (Fla. 4th DCA 1984)(jury allowed to consider testimony of witness who "had been charged with a crime, adjudicated incompetent, and involuntarily committed to the state hospital as a paranoid schizophrenic"); United States v. Lightly, 677 F.2d 1027, 1028 (4th Cir. 1982)("The defense also attempted to have McDuffie testify. McDuffie would have testified that only he and not Lightly had assaulted McKinley. The court ruled McDuffie incompetent to testify because he had been found to be criminally insane and incompetent to stand trial, and was subject to hallucinations. We believe this was error and that Lightly is entitled to a new trial. Every witness is presumed competent to testify, Fed.R.Evid. 601, unless it can be shown that the witness does not have personal knowledge of the matters about which he is to testify, that he does not have the capacity to recall, or that he does not understand the duty to testify truthfully. This rule applies to persons considered to be insane to the same extent that it applies to other persons. United States v. Lopez, 611

1. 2d 44 (4th Cir. 1979); Shuler v. Wainwright, 491 F.2d 1213, 1223 (5th Cir. 1974). In this case, the testimony of McDuffie's treating physician indicated that McDuffie had a sufficient memory, that he understood the oath, and that he could communicate what he saw. The district judge chose not to conduct an in camera examination of McDuffie. On this record, it was clearly improper for the court to disqualify McDuffie from testifying."); United States v. McRary, 616 F.2d 181, 183 (5th Cir 1980)("The defense tendered Mrs. McRary as a witness to show her husband's state of mind during the days and weeks immediately prior to the trip to Cuba in support of the defense of insanity. The trial court ruled that she was not competent as a witness.

   She did not take the stand. The court apparently reasoned that if the wife were not competent to stand trial she was not competent to testify. . . . We hold that the trial court was too peremptory in ruling that Mrs. McRary could not testify. The defense should have been afforded an opportunity to make a proffer and a record to determine the witness' ability to testify."); State v. Miller, 359 N.W.2d 508, 511 (Iowa Ct. App.

   1984)("The record reflects that the trial court examined Simmons extensively about her recollection of the event in question and her understanding of telling the truth. Her responses to the court's questions demonstrate that it was entirely reasonable for the trial court to conclude she was competent to testify. The fact that she is retarded and has been adjudicated incompetent for some other purpose is not determinative."); State v.

   Strickland, 1988 WL 137458 (Ohio Ct. App. 1988)("The test for incompetency to stand trial and the competency of a witness to testify are not the same. Although evidence that a proposed witness is incompetent to stand to stand trial is relevant [to] the issue of whether he is also incompetent to testify as a witness, a finding that the witness is incompetent to stand trial as an accused does not necessarily preclude a finding by the court that the witness is competent to testify."). It should be noted, however, that a determination that a witness is competent to testify is not tantamount to a finding that the witness' testimony should be believed. See State v. Camejo, 641 So. 2d 109, 112 (Fla. 5th DCA 1994), aff'd, 660 So. 2d 242 (Fla.

   1995)("Capacity and credibility are distinguishable. Capacity is required before a witness may testify. Credibility is an issue for the fact-finder to determine."). A witness may be deemed competent to testify yet the witness' testimony may be found to lack credibility because of the witness' history of mental illness. See Hawkins v. State, 326 So. 2d 229, 231 (Fla. 3d DCA 1976)("We believe that appropriate psychiatric testimony to the effect that Drewsella's propensity to tell the truth was affected by her mental and emotional condition would have been relevant and admissible for the purpose of impeaching her credibility [as a witness]."); United States v. Partin, 493 F.2d 750, 762 (5th

   Cir. 1974)("Partin had the right to attempt to challenge Rogers' credibility with competent or relevant evidence of any mental defect or treatment at a time probatively related to the time period about which he [Rogers] was attempting to testify."); State v. Dumaine, 783 P.2d 1184, 1198 (Ariz. 1989("The use of a witness's mental condition for impeachment purposes is proper if there is an indication that the mental condition affected the truth of his testimony."); State v. Randolph, 462 A.2d 1011, 1021 (Conn. 1983("The witness' mental competency was clearly relevant to her credibility."). The testimony of two other eyewitnesses, Joanne Jones and Sean Futch, who testified on behalf of Respondent, was also the subject of controversy at the final hearing. The Department contended that these witnesses should not be permitted to testify because Respondent had not timely disclosed, in advance of the hearing, his intention to call these witnesses to testify on his behalf. Inasmuch as Respondent had not violated any directive of the undersigned or any statutory or rule requirement in failing to disclose his intentions regarding the use of these witnesses sooner than he had, the undersigned overruled the Department's objection and allowed these witnesses to testify. See Fogel v. Mirmelli, 413 So. 2d 1204, 1206 (Fla.3d DCA 1982)("It is error for a trial court to exclude a witness from testifying at trial for failure of the party calling him to list such witness on a pre-trial catalog when the listing of such witness was not specifically required by pre-trial order of the court."); Mall Motel Corporation v. Wayside Restaurants, Inc.,

   377 So. 2d 41, 43 (Fla. 3d DCA 1979)("It is equally well-settled

   that a trial court has no authority to exclude a witness from testifying at trial for failure of the party calling him to list the name of such witness on a pretrial catalog when the listing of such witness was not specifically required by a pretrial discovery order of the court."); Lanai Development Corporation v. Berry, 373 So. 2d 441, 442 (Fla. 3d DCA 1979)("At the trial of this cause, the county court judge excluded a certain witness [a records custodian of a bank] called by the petitioner because the petitioner had not furnished the witness' name on a pre-trial catalog. Our review of the record, however, reveals that no order was ever entered by the county court requiring such a pre- trial catalog. In the absence of such an order, the law is clear that neither party is required to file a pre-trial catalog containing a witness list, that it is error for the trial court to exclude a witness for failure of the party calling him to file such a pre-trial catalog, and that such error is reversible where the excluded witness is critical to the case of the party calling him."); Clarke v. Sanders, 363 So. 2d 843 (Fla. 4th DCA 1978)("In this malpractice case the trial court erred in refusing to allow in evidence at trial the depositions of two doctors whose testimony was quite relevant to the issue of malpractice. The reason the trial court gave for disallowing the introduction of

   the depositions into evidence was the plaintiff's failure to list the names of the doctors on a pretrial statement. We find error because there was no pretrial order requiring the parties to list witnesses on a pretrial statement ").

   2 Petitioner's Exhibit 3 contains two photographs (numbered 1 and 5). The other photographs (numbered 2, 3, 4, 6 and 7) that were originally a part of Petitioner's Exhibit 3 were not offered into evidence by the Department and therefore have not been considered by the undersigned.

   3 Respondent initially was employed at SFETC as a security guard.

   4 Such proof must be in the form of expert testimony establishing the requisite standard of care. See K.M.T. v. Department of Health and Rehabilitative Services, 608 So. 2d 865, 873 n.5 (Fla. 1st DCA 1992).

   5 "A defendant's failure to retain counsel or a defendant's failure to understand the legal consequences of his inaction is not excusable neglect" warranting the setting aside of a default judgment under Rule 1.540, Florida Rules of Civil Procedure. Goldome v. Davis, 567 So. 2d 909, 910 (Fla. 2d DCA 1990); see also Schauer v. Coleman, 639 So. 2d 637, 639 (Fla. 2d DCA 1994)("[A]bsent other justifications, failure to hire counsel does not qualify as excusable neglect.").

   
   

   6 In its proposed recommended order, the Department erroneously states that "[n]o other witness before the court supported

2. K.'s version of the incident."

7 While the undersigned has credited this portion of Respondent's testimony, that is not say that the undersigned finds all parts of Respondent's testimony to be believable. The undersigned finds it difficult to believe that, while Respondent was playing college football as an offensive and defensive tackle, he could only bench press about 150 pounds, as he testified at hearing. See Myron v. South Broward Hospital District, 703 So. 2d 527, 531 (Fla. 4th DCA 1997)("[A] jury is the judge of the credibility of the witnesses and the evidence, and a jury is free to believe parts of a witness' testimony and disbelieve other parts."); Wynne v. Adside, 163 So. 2d 760, 763 (Fla. 1st DCA 1964)("The foregoing analysis of the alternative courses open to the jury is defective in that it overlooks the obvious and basic principle that a jury is not required to accept a witness' testimony in its entirety or wholly reject it, for the jury may accept such portions of a witness' testimony as they may deem credible and consistent with the proven circumstances and probabilities and at the same time reject other portions which they deem incredible or inconsistent with the proven circumstances and probabilities.").

8 In making this credibility determination, the undersigned has taken into consideration the arguments made by the Department in its proposed recommended order concerning the matter.

Docket for Case No: 97-005365

Orders for Case No: 97-005365