vs.
Respondent.
) Case No. 03-3461
Pursuant to notice, a formal hearing was held in this case on November 13, 2003, in Lake Wales, Florida, before Fred L. Buckine, Administrative Law Judge of the Division of Administrative Hearings.
For Petitioner: D. S.
Whether level 2 screening pursuant to Section 435.07, Florida Statutes (2003), mandates denial of an application of a potential foster parent who has a prior DUI-manslaughter conviction.
On July 31, 2003, the Department of Children and Family Services (Department) informed D.S. (Respondent) that his application for a license as a parent of a foster home was denied. On August 18, 2003, Petitioner timely requested a formal hearing to challenge the Department's decision. On September 22, 2003, the Department referred the case to the Division of Administrative Hearings for the assignment of an Administrative Law Judge to conduct the hearing requested by Petitioner.
The hearing was held on November 13, 2003. At the hearing, Petitioner testified on his own behalf and offered no exhibits into evidence. The Department offered four exhibits (P-1 through P-4) into evidence that were accepted without objection. The undersigned granted the Department's request for official recognition of Sections 316.193 and 435.045, Florida Statutes (2003), and Black's Law Dictionary, Seventh Edition, page 739, legal definition of "homicide." Neither party ordered a transcript of the hearing.
The undersigned granted the parties' request for a 20-day extension from the date of the hearing to file their proposed recommend orders. The Department filed its Proposed Recommended Order on December 1, 2003. Petitioner did not file a proposed recommended order. The Proposed Recommended Order filed by
Respondent was considered by the undersigned in preparing this Recommended Order.
Based upon observation of the witness and his demeanor while testifying in person and the documentary materials received in evidence, official recognition granted, evidentiary rulings during the final hearing, and the entire record complied herein, the following relevant and material facts are found:
Petitioner, D.S., applied to become licensed as a foster parent with the Department on July 11, 2003. However, Petitioner is not seeking nor requesting that the Department assign foster children to his home, should his application be granted.
Petitioner is seeking to become the foster parent of his nephew, C.N.L., a 16-year-old male. After the death of his mother, more than five years ago, C.N.L. was moved in with Petitioner who has continuously provided shelter, supervision, care, and support for his nephew.
Petitioner is now seeking to become the foster parent of his nephew because C.N.L. is the age (16) where "authority of a parent or guardian" will be necessarily required in his future.
Other than Petitioner, C.N.L. has no other known relatives and has not been adjudicated or declared a dependent
child pursuant to Section 39.507, Florida Statutes (2003). There is no other pending action by the Department regarding this minor child except the issue under consideration in this cause.
The Family Profile form submitted by Petitioner detailed his current family information. Therein, Petitioner listed himself, white male, divorced, as prospective parent 1, and Daniel Walrad, white male, single, as prospective parent 2.
Petitioner included therein, and acknowledged at the hearing, that as the result of one automobile accident that occurred on December 17, 1989, of which Petitioner was the driver, the passenger in the vehicle died. As a result, Petitioner was found guilty and convicted of a felony. Law enforcement did not arrest Petitioner at the time of this accident but charged Petitioner with felony DUI-manslaughter. With private counsel, Petitioner entered a nolo contendere plea to the charge of "homicide"-negligent vehicle manslaughter, Section 316.193, Florida Statutes (1989). The Circuit Court, Ninth Judicial Circuit, Orange County, Florida, accepted the plea of Petitioner, entered an adjudication of guilt, and convicted Petitioner on the charge. The Court sentenced Petitioner to and he successfully completed five years of probation and two years of community control.
Petitioner, as a demonstration of his remorse and rehabilitation, has not drunk alcohol since the accident
13 years ago. As evidence of his commitment to caring for his nephew, Petitioner is currently attending Model Approach to Partnership in Parenting (MAPP) classes that are required for potential foster parents.
Petitioner, with the understanding that C.N.L. has not been declared a "depending child" and is, therefore, not registered in the Department's system as a dependent child, concluded that he is free to and would, should the Department deny his foster parent application, move his current family, including C.N.L., to the State of New Hampshire.
The above Findings of Fact are undisputed by either party to this proceeding.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding pursuant to Sections 120.569 and 120.57, Florida Statutes (2003).
The Department is authorized and required to conduct a criminal records check equivalent to the level 2 screening required in Section 435.045(1)(a), Florida Statutes (2003), of all persons being considered for placement of a child subject to a placement decision by the Department pursuant to Chapter 39,
Florida Statutes (2003). However, C.N.L. is not a child subject to a placement decision pursuant to Chapter 39, Florida Statutes. C.N.L. is not a child under the State's care.
The purpose of the background investigation is to ensure that the person has not been found guilty of, regardless of adjudication, or entered a plea of nolo contendere or guilty to those offenses listed in Section 435.045(1)(a)1., Florida Statutes (2003), commonly referred to as "disqualifying offenses."
(1)(a) Unless an election provided for in subsection (2) is made with respect to the state, the department is authorized to conduct criminal records checks equivalent to the level 2 screening required in s.
435.04(1) for any person being considered by the department for placement of a child subject to a placement decision pursuant to chapter 39. Approval shall not be granted:
In any case in which a record check reveals a felony conviction for child abuse, abandonment, or neglect; for spousal abuse; for a crime against children, including child pornography, or for a crime involving violence, including rape, sexual assault, or homicide but not including other physical assault or battery, if the department finds that a court of competent jurisdiction has determined that the felony was committed at any time . . .
The results of the criminal background record check determines the decision the Department shall make. The Legislature determined that conviction of certain criminal offense prohibits Departmental approval of child placement
applications. One such offense is homicide, which is the killing of one person by another. "The legal term for killing a person whether lawfully or unlawfully, is homicide." There is no crime of "homicide." Other forms of "homicide" have been created by statute; in Florida, the "causing of death by dangerous driving" is homicide.1 Section 316.193, Florida Statutes (1989), provides that a person under the influence who operates a vehicle and by reason of such operation causes the death of another is guilty of DUI-manslaughter, a homicide.
The Department conducted a level 2 screening of Petitioner. During the level 2 screening, a felony, DUI- manslaughter, was found. Petitioner was convicted and sentenced on that charge and, as a result thereof, is ineligible to be licensed as a foster parent pursuant to Section 435.045(1)(a), Florida Statutes (2003). Accordingly, the Department has no statutory authority to grant the application filed by Petitioner to be licensed as a foster parent for his 16-year-old nephew, C.N.L.
