The Issue Whether Petitioner is entitled to an exemption to work in a position of special trust upon clear and convincing proof of rehabilitation as required by Section 435.07(3), Florida Statutes.
Findings Of Fact In 1988, Petitioner was the divorced mother of three girls, one of whom was S.H., who was eight years old. The other daughters were older. At that time, Petitioner and her second husband left her daughters in the care of a 14-year-old girl and walked down the street to a local store. When they returned, they found the girls entertaining several young men, in direct defiance of Petitioner's prior instructions. Petitioner flew into a rage. Petitioner inflicted visible marks on all three girls with a belt. Respondent's predecessor agency personnel came with the police, removed the children, and delivered them to their natural father. Petitioner pled nolo contendere to a single charge of aggravated child abuse against S.H. Adjudication was withheld. She was placed on five years' probation, including paying court costs, 60 hours of community service, and counseling at her own expense. She never violated her probation and earned early termination of probation. For a period of time, Petitioner lost custody of her daughters and was only permitted to see them during court-supervised visitations. During this period, Petitioner took anger management and parenting classes through Gainesville Mental Health Services, which she credits with changing her attitude and her life. She complied with all agency expectations. After a year and a half, the daughters wrote the circuit judge involved in the case, requesting that they be returned to their mother's custody. S.H. has lived with Petitioner ever since. S.H. is now almost 19 years old. Petitioner and S.H. live together and are devoted to each other. S.H. supports the exemption. Petitioner has been supportive of S.H. throughout S.H.'s recent unwed pregnancy and childbirth. Petitioner is helping S.H. raise her infant son. At the present time, the two older daughters live elsewhere. Both support the exemption. Some of S.H.'s testimony suggested a recantation of what she told authorities in 1988, but the documentary evidence clearly supports the 1988 charges against Petitioner of aggravated child abuse. Petitioner described her reasons for her 1988 outburst as being fear for her daughters because the men in the home had knives and because her children had endangered themselves by disobeying her and letting dangerous people in the house. She maintained that she never intended to hurt her children. She feels that she now knows how to manage her anger; give her children the listening ear they need; use "time-outs"; and be sensitive to their needs. She related attendance at women's counseling groups, and increased church activity. Petitioner ran her own cleaning company in 1988, and had worked at the County Health Department in Lake Butler, at Tacachalee, and in daycare prior to 1988. She related losing opportunities to compete for jobs at the Alachua County School Board, Alachua County Sheriff's Department, Tacachalee Institute, and in daycare positions since 1988, as a result of the statutory bar from working in a position of special trust and/or as a result of her 1988 criminal record. As a result, she has not had sufficient income to enroll in junior college as she had intended. Nonetheless, Petitioner has continued to work and support herself and her family. She currently works in a submarine sandwich shop. In 1996, the agency investigated an allegation by S.H. that she had been raped by an adult living in the home she shared with Petitioner. The man involved was a mentally retarded male, about 23 years of age, for whom Petitioner had assumed a caretaker role. Petitioner became payee for his Social Security Insurance benefits and moved him into her home for approximately four months. Petitioner testified that as soon as S.H. made the rape accusation, Petitioner transferred the man out of her home and transferred his custody to another member of her church. This man is not the father of S.H.'s child. Petitioner claimed that it had not occurred to her that a retarded person who behaved like a small child could be capable of sexual acts. She claimed that S.H. recanted the 1996 rape charge to the authorities and admitted to consensual sex with the retarded man, but S.H. was not recalled to the stand to verify Petitioner's statement. Apparently, no charges were brought against Petitioner for this 1996 incident. Petitioner denied that she had been arrested for theft in 1998. The agency submitted no evidence of such an arrest or criminal charge. Mr. Odell Hartman is employed by the agency as a Behavior Specialist at Tacachalee Institute. He has known Petitioner only for the last year. He met her through Bible study at their church. He is confident in leaving his young son in her care. He believes that Petitioner has had a complete change of heart and that everyone is entitled to a second chance. Letrail Roberson has known Petitioner for the last five years. She has a son who is now about 23 months old. They attend the same church as Petitioner, who is involved in the church's dance ministry and Sunday School. Ms. Roberson's son enjoys Petitioner's company and follows her around. Ms. Roberson has observed Petitioner to be "patient, loving, and kind-hearted" with the children at the church, especially with her son. Petitioner submitted, without objection, several letters in support of her receiving an exemption or supporting her applications for employment. All attest to her good character. Few specified a lengthy involvement with Petitioner.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Children and Family Services enter a final order granting Petitioner an exemption to work in a position of special trust. DONE AND ENTERED this 4th day of October, 1999, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS 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 4th day of October, 1999. COPIES FURNISHED: Lucy Goddard, Esquire Department of Children and Family Services 1000 Northeast 16th Avenue, Box 3 Gainesville, Florida 32601 Betty Joe White Post Office Box 5412 Gainesville, Florida 32627 John S. Slye, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Rooms 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue in this case is whether Petitioner’s application to adopt a minor child should be denied because it is in the best interest of the child.
Findings Of Fact Respondent, in accordance with chapters 39, 63, and 409 Florida Statutes (2013),3/ is the agency tasked with, among other things, the responsibility to deny or approve adoption applications. The minor child was born in May 2013 and placed in Petitioner’s home in that same month.4/ At all times relevant to this case, the minor child’s biological parents were unable or unwilling to take responsibility for their child. Termination of parental rights was completed in October 2013. Petitioner is the minor child’s step-grandmother. Petitioner filed an application to adopt the minor child on November 25, 2013, listing her address as 4203 East Hanna Avenue, Tampa, Florida. A home study, which is an assessment of the potential adoptive parent’s home environment, parental capacity to support the child and the relationships with individuals both inside and outside the home of the potential adoptive parent, must be conducted prior to an adoption. On November 26, 2013, the home study was conducted at the Hanna Avenue address. Several areas of concern were noted in the home study; the home was cluttered and dirty with soiled dishes in the sink and fast food bags and wrappers throughout the home. On February 11, 2014, the AARC met to review Petitioner’s application to adopt the minor child. Petitioner was present at the AARC meeting. The following concerns were expressed during the AARC meeting: Petitioner’s monthly expenses far exceed her income; Petitioner has a criminal history and is currently on probation for the last offense, and served 10 days in jail in January 2014 without telling Respondent where she was and who was attending the minor child; Petitioner has significant health issues including congestive heart failure, diabetes, high blood pressure and a bulging disc in her back; Petitioner is legally married but has been separated from her husband for over 20 years without any knowledge of whether her husband is alive or dead; and there have been multiple abuse reports, although some indicators of abuse were not substantiated. Additionally, Petitioner has moved from the residence where the home study was conducted in November. That move to a different address invalidated the home study and another home study would have to be conducted to evaluate Petitioner’s current living situation. Petitioner’s expenses, as she detailed, far exceed her income. Petitioner receives approximately $820 a month in income, yet her living expenses include $800 rent, $150 in utility services, and $50 for water. Currently, Petitioner’s two daughters and their children (each daughter has a child) live with her in a three-bedroom home. Petitioner has her own bedroom. Each daughter has her own bedroom which is shared with her child. One daughter, (B), currently works at a hotel. Daughter B supplements Petitioner’s income to run the household. However, Daughter B has indicated she wants to move out. She has not given a specific move date. The other daughter, (M), was arrested in May 2014 for allegedly stealing electricity from Tampa Electric. The charge was dropped when Daughter M paid the electrical bill and court costs. That daughter is applying for a job but is without an income to support herself and her child at this time. Respondent does not consider income from persons other than the applicant in its review of potential adoptive parent’s application. In November 2010 Petitioner entered a plea of guilty to allegations of fraudulent use of a credit card and grand theft. The circuit court in Hillsborough County withheld adjudication of guilt, but placed Petitioner on 24 months of probation with the requirement to re-pay the money and all mandatory court costs. Petitioner has been arrested three times on violation of probation (VOP) for her failure to timely pay the costs. Petitioner’s last arrest, in January 2014 resulted in a ten-day jail term for the VOP. Although Petitioner’s adult daughters were tending to the minor child, neither Petitioner nor her daughters notified Respondent that Petitioner was not available for the minor child’s needs. Petitioner anticipates paying the remainder of the costs within the next few weeks when one of her daughters receives her income tax refund. Petitioner has significant health concerns. While at work several years ago, Petitioner sustained a back injury, a bulging disc. She is not seeking rehabilitation for her back, and is not planning on returning to work. Petitioner confirmed she has a history of high blood pressure and congestive heart failure, although she is currently feeling well. Additionally, Petitioner verified that she takes insulin four times a day to control her diabetes. Petitioner married D.B. on June 28, 1993. Petitioner has obtained the form to file for a divorce, but to date no petition for divorce has been filed by either Petitioner or D.B. Petitioner has had several reports of child abuse since 1990; however, some of those reports have been unsubstantiated. Petitioner and the minor child have lived in no less than three different homes over the past year. Petitioner submitted her adoption application while residing at one home and Respondent conducted the requisite home study at that location. However, even before the AARC meeting could take place, Petitioner had moved to another home, thus voiding the home study. Petitioner’s frequent moves does not provide a stable living environment for the minor child. Ms. Spofford has worked as a guardian ad litem (GAL) for over three years. A GAL advocates for the best interest of the child and may, at times, express different advocacy positions than the biological parents, potential adoptive parents, caregivers or, as in this case, Petitioner. GAL Spofford was appointed as the minor child’s GAL approximately three weeks after his birth, and she has visited with the minor child at least once a month since that appointment. GAL Spofford makes both announced and unannounced visits to Petitioner’s home to visit with the minor child. As a small baby, the minor child was not mobile, and GAL Spofford was not as concerned about his home environment. However, the minor child is now mobile and GAL Spofford has a lot of concerns. On one particular unannounced visit, GAL Spofford was allowed into the home by a three- or four-year old child, when no adult was present.5/ GAL Spofford picked up the minor child and discovered he had a wad of paper in his mouth, which GAL Spofford removed. In this one instance alone, the supervision of the minor child and the other young children was inadequate. Based on the totality of the circumstances, GAL Spofford believes it is in the minor child’s best interest to be adopted by another family. There is no dispute that Petitioner loves the minor child. Petitioner has cared for the minor child since his discharge from the hospital. Petitioner’s witnesses were unified in their observations of how Petitioner loved the minor child and looks out for his interest. Although Petitioner wants to adopt and care for the minor child, current circumstances do not render that a viable option. Respondent has a formidable task in ascertaining the best interest of any child. It requires a look into the future and a prediction of what will happen. Petitioner’s past indiscretions do not lend themselves to a stable and secure environment for the minor child. It is in the minor child’s best interest to be adopted by someone other than Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Families enter a final order denying Petitioner’s application to adopt the minor child. DONE AND ENTERED this 26th day of June, 2014, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of June, 2014.
Findings Of Fact The Petitioner is a single male, 39 years of age. He has been a resident of Broward County for the past six years and is self-employed in real- estate management and maintenance. He holds a master's degree from Ohio State University and is in apparent good health. In addition to about twelve traffic violations, Petitioner has been arrested for wrongful influence of a minor in 1976, and soliciting a lewd and lascivious act in 1977. The 1977 charge was dropped, but the 1976 charge resulted in a $25 fine. Petitioner's experience as a parent is limited. He did, however, provide a home to a son (born out of wedlock) for the child's final two years of high school. Petitioner met the dependent child, Richard Price, on the beach in August, 1980. Richard was then 14 years and ten months of age. After determining that Richard was "living on the street," Petitioner offered to share his condominium apartment with him. Richard accepted and remained with Petitioner until February, 1982, when he was removed by Respondent. Petitioner did not notify Respondent, who had custody of Richard, when he brought the child to his home in August, 1980. However, Respondent did not actively attempt to locate Richard and was not aware of his situation until over a year later, despite Richard's dependent child status. During his first year with Petitioner, Richard's adjustment and behavior were satisfactory. He attended high school and travelled with Petitioner on a family visit to Ohio and a group education tour to England. He gained weight and received medical attention as needed during this period. In the summer of 1981, Richard formed a relationship with another dependent child who had moved into Petitioner's condominium building. His behavior deteriorated thereafter, at least partly as a result of this relationship. On September 28, 1981, the police were called to Petitioner's residence regarding an argument between Petitioner and Richard. As a result of the police report, Respondent became aware of Richard's unapproved status. However, Respondent issued Petitioner a provisional license as a foster parent and Richard was allowed to remain in petitioner's custody. On November 6, 1981, Richard threatened Petitioner with a knife. The police were again summoned and Richard was temporarily placed in the South Florida State Hospital. On this occasion, Richard was returned to Petitioner's custody by court action. On February 6, 1982, Petitioner and Richard had an argument which culminated in a physical fight. In the struggle, Petitioner bit Richard rather severely, in what he contends was self-defense. Petitioner concedes that he bit Richard during an earlier altercation, also in claimed self-defense. As a result of the February 6 incident, Respondent removed Richard from Petitioner's custody and subsequently denied his application for licensure as a foster parent. Both Richard and Petitioner seek to resume the previous custody arrangement. Although Petitioner did not achieve a father-son relationship with Richard, he did provide a home-type setting in which Richard, for the most part, prospered. Richard is known to Respondent as having a "hot temper" and is at least partly responsible for the above described incidents.
Recommendation From the foregoing, it is RECOMMENDED: That Respondent enter a final order denying the petition. DONE and ENTERED this 28th day of July, 1982 in Tallahassee, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of July, 1982. COPIES FURNISHED: William F. Zamer, Esquire Suite 200 1421 East Oakland Park Boulevard Oakland Park, Florida 33334 Harold Braynon, Esquire District X Legal Counsel Department of HRS 201 West Broward Boulevard Ft. Lauderdale, Florida 33301 David H. Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
Findings Of Fact In March of 1987, the Petitioner, Mitchell M. Green, was employed with the Department of Health and Rehabilitative Services as a child support enforcement investigator. He had been employed by the Department since 1982. On March 17, 18 and 19, 1987, the Petitioner did not report for work, and did not call in to any of the persons who supervised him to explain his absence. Previously, the Petitioner had not requested leave for March 17-19, and leave had not been authorized. On March 20, 1987, the Department notified the Petitioner that his failure to report for work on March 17, 18 and 19 when he was scheduled to work, without contacting his supervisor, and without authorized leave, constituted abandonment and resignation from the position under Rule 22A-7.010(2), Florida Administrative Code, and that his employment was terminated. The Petitioner was aware of the abandonment provision in the Department's rules. He had acknowledged receipt of a copy of the Department handbook containing these rules on July 8, 1986. The testimony of the Petitioner, his father, and his mother established that the Department had given the Petitioner an "Exceeds Performance Standards" rating on his last evaluation, that the Petitioner had been diagnosed as having cancer in February of 1985, that the Petitioner had requested leave in January, 1987, but was refused because he had no more leave, and that the Petitioner was upset about conditions at work. These factors are irrelevant, however, because they do not excuse or justify a failure to report to work without obtaining authorized leave or notification that assigned work will not be performed because of absence.
The Issue The issue in this case is whether the Respondent’s certifications as a Correctional and Law Enforcement Officer should be disciplined and, if so what penalties should be imposed.
Findings Of Fact Respondent, Fedrick Williams, was certified as a Correctional and Law Enforcement Officer on June 26, 1992, holding Certificate Numbers 55153 Correctional and 55152 Law Enforcement. He was employed by the Leon County Sheriff’s Office in 1992 as a Deputy. From 1992 until 1996 he served without incident. In 1996, Respondent took a leave of absence for two years. In 1998 he returned to the Sheriff’s Office and served without incident until he was criminally charged with Aggravated Child Abuse by Malicious Punishment, a second degree felony, pursuant to Section 827.02(2), Florida Statutes. The alleged violation of the lesser included offense of child abuse under that statute forms the basis for the discipline sought by the Department in this proceeding. B.B. is the biological son of Lisa Williams and stepson of Respondent. B.B. suffers from a growth hormone deficiency. Because of the deficiency, B.B. is required to take hormones as well as adhere to a special diet to help with his condition. However, even with treatment, B.B. is unusually small for his age and, during the time of these events, B.B. was approximately four feet, four inches tall and weighed approximately 63 pounds. The B.B. and his mother had a history of physical confrontation that, at times, resulted in both Department of Children and Family Services and police intervention. Indeed, in 2001, B.B. received two permanent scars from his mother’s beating him. B.B. was arrested for hitting his mother with a pogo stick. When B.B. was released from the Department of Juvenile Justice (DJJ) his mother refused to pick him up. Respondent picked up B.B. from DJJ. B.B. also stole and forged checks from his mother on at least two occasions. Additionally, he threatened his cousin with a knife when he became angry at him. Things were so strained between B.B. and his mother that after the criminal actions involved with the incident related to this proceeding, B.B.’s mother voluntarily terminated her parental rights and gave up custody of B.B. to a relative. On the other hand, Respondent and B.B. had a good relationship. They did many things together and B.B. often came to Respondent for advice, help or just to talk. The termination of his wife’s parental rights and loss of his stepson greatly distressed Respondent and causes him heartache to this day. In fact, Respondent still communicates with B.B. and wishes he were home with him. Respondent’s disciplinary style was not generally physical. Witnesses described him as a gentle man. In fact, Respondent preferred to talk things out if there was a problem. He rarely utilized corporal punishment and always exercised restraint if he had to resort to such. Indeed, Respondent talked to B.B. and placed him on restrictions when B.B. forged his mother’s checks and threatened his cousin with a knife. On November 8, 2002 at about 6 p.m., B.B.’s mother discovered that B.B was sneaking and hiding candy and junk snack food in his bedroom. There were crumbs and packages from his food stash in his dresser drawers and around his room. As indicated above, the reason B.B.’s behavior was serious was that B.B.’s health required that he adhere to a diet that did not include junk food. B.B. had been warned on multiple occasions about eating candy and other junk foods. He had also been on restriction multiple times for such behavior. On November 8, 2002, B.B was either on or had just gotten off of restriction Respondent had placed him on for eating such junk foods. B.B.’s mother called Respondent into B.B.’s bedroom. Respondent first talked to B.B. and then got his service belt and swatted him at most four or five times across B.B.’s buttocks. There was no injury to B.B. at this time. He then talked to B.B. some more and left the room to take care of B.B.’s younger brother in the living room where the TV was on. Respondent has consistently denied injuring B.B. and has consistently reported the same facts as above. After Respondent left the room, B.B.’s mother entered the room. Respondent’s teenage daughter, who was doing her homework at the dining room table and could hear what was happening in B.B.’s room, heard B.B’s mother yelling and cursing at B.B., things falling off the furniture and loud banging noises around the room. Respondent was not in a position to hear what was occurring in B.B.’s room. B.B.’s mother testified that B.B. was not injured when she left B.B.’s room. Eventually, B.B. was sent to bathe and get ready for bed. Respondent’s daughter did not see any injuries to B.B.’s face when he left his room to bathe. While in the bathroom, B.B. went to the bathroom window and climbed out. The bathroom window was high as it relates to the B.B.’s height of four feet and four inches. The window was not large enough for B.B. to have crawled through in an upright manner so that he could land on his feet once outside. On the outside and under the window there was a three foot wide thorny rose bush and a brick ledge. It is highly likely that B.B. hit both the bush and the ledge on his way down from the window. Both obstacles could have caused long strap-like bruises to B.B.’s body as well as injury to his eye and other abrasions. Respondent’s home was surrounded by fairly thick forest. The forest appears to be thick enough to have also caused bruising or other injuries to B.B. B.B.’s foot prints were found leading away from the house towards the woods. B.B. traveled about six miles through thick forest to the James’ property. He climbed into Mr. James’ truck and went to sleep. At some point, B.B.’s absence was discovered. B.B.’s mother reported B.B. as a runaway on the evening of November 8, 2002. A lengthy search by Respondent and the police ensued which was not successful. B.B. was discovered the next morning by Mr. James when he was leaving for work. Mr. James brought B.B into his home and left him with his wife. Both neighbors observed that B.B. had several bruises on his arms and a very swollen black eye. According to Ms. James, B.B. had an eye that was swollen shut and had red marks above his eye extending to his hairline. One of the James’ called the police to report that they had found a child. When asked by Ms. James’ who had hit him. B.B. reported that his mother had hit him and caused his injuries. B.B. was not present and did not testify at the hearing. The effort used by the Department to secure B.B.’s presence at the hearing was minimal given the importance of B.B.’s role in these events. The Department’s efforts consisted of four telephone calls on Friday, August 25, 2006 that resulted in a message being left. There was no response to these calls. On Monday, August 28th and on Tuesday, August 29th, the Department again unsuccessfully called and left messages. One such call seemed to be interrupted by the phone being picked up and then hung up. Other than that one interruption, the Department offered no proof that anyone actually received the messages left on the answering machine. No subpoena of B.B. was attempted by Petitioner. No certified letter was sent to secure the presence of B.B. by Petitioner. Counsel for the Respondent made Petitioner aware of B.B.’s whereabouts several weeks before the hearing. No one from the Department traveled to that location to try to find B.B. No continuance was requested in order to locate B.B. The Department’s efforts, or lack of effort, to secure B.B.’s presence at the hearing do not demonstrate that B.B. was unavailable for the hearing. Instead the Department offered into evidence the transcripts from B.B.’s deposition taken as part of Lisa Williams’ criminal case, case number 2202 CF 4227-B1. This deposition was taken Tuesday, October 14, 2003, and was offered as Petitioner’s Exhibit numbered three. The deposition indicates that Respondent was responsible for B.B.’s injuries. Although Respondent was criminally charged based on similar fact evidence, the deposition of B.B. was not part of Respondent’s case and Respondent was not a party to that criminal case. The motive for Respondent to fully and adequately develop the testimony of B.B. was not as vital as it would be had the deposition been conducted for Respondent’s own case. Moreover, B.B.’s accounts of the evening of November 8 vary widely as to which parent was responsible for his injuries. Little credit is given to any of B.B.’s statements regarding the events of November 8, 2002. Deputy Hunter picked B.B. up from the James’ residence. He took B.B. to Tallahassee Memorial Hospital’s emergency room where the child was interviewed and extensively photographed. The photographs showed a variety of bruises and abrasions over B.B.’s body and a very swollen eye. Some of the bruises were long strap-like marks. Crime Scene Detective Patrick Lyons met with B.B., Deputy Hunter, and a member of the Child Protection Team at the emergency room. There were dozens of photos taken by Detective Lyons. One of the interviewers was Cynthia Y. Burns, RN. She stated that B.B. stated that his step father hit him in the eye. B.B. was also interviewed by Elain Sofkis, RN. He made a similar statement to her. The lead investigator was Detective Derek Terry of the Leon County Sheriff’s Department. On November 9, 2002, B.B. variously told Detective Terry that his stepfather beat him with a belt and hit him in the face with the belt, after which his mother immediately jumped on him and punched him in the face 20 or more times. A short time later, B.B. stated that he was hit 20 times with the belt, after which his mother entered his room and punched him in the stomach and chest, but not the face. Detective Terry never went to the house where the alleged abuse occurred. Again, B.B.’s statements are not credible. On November 9, 2002, Respondent was criminally charged with Aggravated Child Abuse of B.B. Shortly thereafter, Respondent was terminated from his position with the Leon County Sheriff’s Office at the recommendation of the Career Services Board. The termination was conditioned upon the Respondent pleading to or being convicted of Aggravated Child Abuse or any lesser included offense in his criminal case. At the conclusion of the criminal case Respondent plead to two counts of disorderly conduct, which are misdemeanors of the second degree. Respondent entered his plea because he could not financially afford to continue the legal process and he wanted to return to work at the Sheriff’s Office. Since disorderly conduct was not a lesser included offense of aggravated child abuse, Respondent was reinstated to his former position without pay for the time missed from work in 2004. In the final analysis, the evidence presented at this hearing did not demonstrate that Respondent committed any acts of aggravated child abuse or child abuse. The more credible evidence demonstrated that Respondent did not cause any injury to B.B. and that the injuries that B.B. had on November 9, 2002, were either inflicted by his mother or B.B.’s encounter with the environment outside the house and his subsequent long trek through the woods in the dark. Moreover, the evidence did not demonstrate that Respondent’s moral character was impaired or diminished by these events. The only thing Respondent did was spank his stepson with a belt. He did not injure him or maliciously punish him. Therefore, the Administrative Complaint should be dismissed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission, enter a final order finding Respondent not guilty of violating Section 943.1325(6) or (7), Florida Statutes, and dismissing the Administrative Complaint. DONE AND ENTERED this 6th day of February, 2007, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER 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 6th day of February, 2007. COPIES FURNISHED: Joseph S. White, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Deveron L. Brown, Esquire Brown & Associates, LLC The Cambridge Center 223 East Virginia Street Tallahassee, Florida 32301 Michael Crews, Program Director Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue The Respondent, Andromeda Preschool (hereafter, Andromeda) seeks a formal hearing on the proposed administrative fine assessed by the Department. The only issue is whether Andromeda knew or had reasonable cause to suspect that an incident of abuse had occurred, and violated Section 415.504(1), Florida Statutes, by failing to report timely the alleged incident.
Findings Of Fact It is uncontested that Andromeda, as a licensed day care facility, is subject to the reporting requirements of Section 415.504, Florida Statutes. On January 16, 1998, a Friday, between 3:00 and 4:00 p.m., M.H. overheard E.H., an 8 year-old boy at Andromeda, telling at least two other boys that S.R., a 17 year-old male employee of the Andromeda, had wanted to perform oral sex on E.H. M.H., who is the sister of S.R. and also an employee of the school, reported the conversation she overheard to J.L., another employee of Andromeda. J.L. immediately reported the overheard conversation to Adrain Campbell, a co-director of Andromeda. Both M.H. and J.L. reported the conversation because of concern about the vulgar and graphic language used by E.H., who had exhibited a history of using vulgar language. Ms. Campbell conducted interviews with M.H., E.H., and the two boys with whom he was talking. E.H. told Ms. Campbell that S.R. had told him that S.R. wanted to perform oral sex on him. The two friends of E.H. reported to Ms. Campbell what E.H. said, but reported the conversation about oral sex between E.H. and S.R. took place while S.R. was baby-sitting E.H. M.H. reported to Ms. Campbell that S.R. had never baby-sat for E.H. Following the interview with the younger children, Ms. Campbell interviewed S.R. S.R. vehemently denied the accusations and appeared to be visibly shaken. Ms. Campbell sent a letter to the parents of E.H. on Friday, January 16, 1998, requesting a meeting with the mother of E.H. on Monday morning, January 19, 1998. The letter was hand delivered to the father of E.H. between 4:00 p.m. and 4:30 p.m. on January 16, 1998. The letter set out the essence of the reported conversation, and expressed Ms. Campbell's concern for the type of language and conversation used by E.H. Ms. Campbell did not consider the reported conversation as an allegation of misconduct by S.R., but an incident of vulgar language use by E.H. On Monday, January 19, 1998, S.H., the mother of E.H., met with Lori Studenski, co-director of Andromeda, and Margie Smith, an employee of Andromeda. The mother advised Smith and Studenski that she had questioned E.H. the preceding evening about allegations reported by Ms. Campbell, and E.H. informed her that S.R. had “touched his privates.” This alleged touching had not previously been disclosed to Andromeda. Smith and Studenski advised the mother that they believed S.R.'s denials, and that they felt E.H. was being influenced by older children. S.H. indicated she would question E.H. further. Both E.H. and his sister attended Andromeda on January 19, 1998, according to their normal schedule. On Tuesday morning, January 20, 1998, another meeting was held between Ms. Studenski and S.H., the allegedly abused child's mother. S.H. reported to Studenski that E.H. was again questioned by S.H. and her husband on Monday evening, January 19, 1998. E.H. related to them how S.R. had performed oral sex on E.H. twice in the kitchen at Andromeda with E.H. shouting, “No, no.” This was the third version of events reported by E.H. S.H. advised Ms. Studenski that she would be speaking with the pastor of their church. Again, E.H. and his sister both attended Andromeda as normal on Tuesday, January 20, 1998. Ms. Campbell and Ms. Studenski doubted that the alleged incident could have occurred in the kitchen as described by E.H. because the kitchen at Andromeda is very open. It has a large, open window that looks into the children’s game room/dining area. Further, the doorway into the kitchen is adjacent to that window and has a split door, the top half of which is approximately the same height as the open window, and all of the classrooms at Andromeda have glass panels in the doors and windows without shades. Paul Campanale, an employee of the Department of Children and Family Services whose duties include investigating allegations of child abuse, testified. His office received a report from the Central Abuse Reporting Hotline in Tallahassee at approximately 3:39 p.m. on January 20, 1998, and Campanale began his investigation at 4:42 p.m. on the same date. The report of abuse upon which Mr. Campanale based his investigation was that S.R. had performed oral sex on E.H. before Christmas 1997. Mr. Campanale testified that he had no record of when the incident was first reported, either to the parents of E.H. or to Andromeda. This allegation by E.H. was not related to the staff at Andromeda until January 20, 1998. By telephone, Mr. Campanale spoke with Margie Smith and Lori Studenski of Andromeda. Campanale was advised that the alleged incident was not reported earlier by Andromeda because Andromeda was conducting an internal investigation. He interviewed E.H. around noon on January 21, 1998. E.H. reported that he was in the kitchen at Andromeda around the New Year washing dishes, when S.R. performed oral sex on him. Following his interview with E.H., Mr. Campanale concluded that there were “some indicators” of an incident of abuse based solely on his interview with E.H. Mr. Campanale did not conduct any further follow-up investigation or interviews with any of the Andromeda personnel or S.R., nor did he visit the facilities at Andromeda. Vivian Farley and Maurice W. Murray, Jr., also testified as witnesses for the Department. Mr. Murray is the day care facility supervisor for the Department covering an area of five counties. Ms. Farley is involved with the licensing of day care facilities and her duties include investigating complaints of noncompliance with reporting requirements. Mr. Campanale filed a complaint regarding the failure to report the incident with the Petitioner on February 19, 1998. Mr. Murray, as supervisor, assigned the responsibility of investigating the non-reporting to Ms. Farley. Although a variety of resources and information is available to day care centers, there are no specific guidelines promulgated by the Department that defines reasonable cause to suspect abuse. Ms. Farley indicated that any report of an incident by a child, no matter how far-fetched, should be reported. Ms. Farley was the only witness testifying on behalf of the Department who was familiar with the facilities at Andromeda. She concurred in the testimony given by Ms. Campbell and Ms. Studenski as to the openness of the kitchen area where the alleged incident purportedly occurred, as well as the visibility features of the classrooms at Andromeda.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby: RECOMMENDED: That a final order be entered finding that the allegations of the administrative complaint not proven; that Section 415.504(1), Florida Statutes, was not violated; and that the imposition of a civil penalty in the amount of $250.00 be rescinded. DONE AND ENTERED this 21st day of August, 1998, 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 Filed with the Clerk of the Division of Administrative Hearings this 21st day of August, 1998. COPIES FURNISHED: S. Grier Wells, Esquire 3100 Barnett Center 50 North Laura Street Jacksonville, Florida 32202 Roger L.D. Williams, Esquire Department of Children and Family Services Post Office Box 2417 Jacksonville, Florida 32231-0083 Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John S. Slye, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether Respondent's educator's certificate should be sanctioned for an alleged violation of section 1012.795(1)(b), Florida Statutes, in that Respondent knowingly failed to report actual or suspected child abuse as alleged in Petitioner's Amended Administrative Complaint. Whether Respondent's educator's certificate should be sanctioned for an alleged violation of section 1012.795(1)(j), in that Respondent violated the Principles of Professional Conduct for the Education Profession prescribed by State Board of Education rules as alleged in Petitioner's Amended Administrative Complaint.
Findings Of Fact Based on the evidence presented and the record as a whole, the undersigned makes the following findings of material and relevant facts: Parties' Statement of Agreed Facts Respondent holds Florida Educator's Certificate 632878, covering the area of elementary education, which is valid through June 30, 2017. At all times pertinent hereto, Respondent was employed as a part-time interventionist teacher at Brownsville Middle School ("BMS"), Miami-Dade County School District. Respondent has been a certified teacher for 25 years. On March 9, 2015, Respondent was informed by Y.H., a sixth-grade female student, that her stepfather comes into her room and lays on top of her with his clothes on without touching her in any inappropriate way, when her mother was not present. On March 9, 2015, Y.H. also informed Respondent that her stepfather pushed her toward a wall causing her to fall into a chair and then he pulled her by the hair. Respondent went to Counselor Sonya Durden's office on March 9, 2015, to discuss what she had heard from Y.H. and the other two students. Respondent did not immediately report the student's accusation on March 9, 2015, to the Department of Children and Families or the Child Abuse Hotline. Facts Adduced at the Hearing The Commissioner is responsible for investigating and prosecuting allegations of misconduct against individuals holding educator's certificates under section 231.2615, Florida Statutes. During Castella's 25 years of teaching, she testified that she had never received training concerning suspected child abuse or related reporting requirements. This testimony is rejected. The more persuasive and credible evidence revealed that all school employees at BMS, with no exceptions, received regular training at the beginning of each school year, which includes their reporting duties when child abuse is suspected. The more persuasive evidence also demonstrated that various posters on child abuse reporting were posted around the school to remind teachers at BMS of their reporting requirements in cases of suspected child abuse. Respondent's Exhibits B and C are examples of those posters. Respondent's Exhibit B is a colorful poster with the title Child Abuse Look for the Signs. The poster gives information on various signs of physical and sexual abuse, as well as the procedure to follow when a child speaks of abuse. The evidence revealed that this poster was posted at the designated faculty sign-in area at BMS at all times relevant to this incident. Principal Ebony Dunn testified that "all of the employees have to sign-in whether they're hourly, whether they're full-time, non-instructional." Thus, Castella would have been required to sign in at this designated area at the beginning of each day where the poster was prominently displayed. The undersigned finds that based on the more persuasive evidence, Respondent was aware of the poster's content. Respondent's Exhibit C is another poster with the title Reporting Child Abuse is Everyone's Responsibility. This poster details various signs of child abuse and how someone can report an instance of child abuse. The undisputed evidence indicated that this poster was also displayed at the student services building/main learning center at all times relevant to the incident. The more persuasive evidence and reasonable inferences drawn from the evidence indicate that Respondent was aware of both of these posters and knew of her duty to report suspected child abuse. March 9, 2015, Incident On March 9, 2015, Castella was approached by three girls at lunch, one of whom was Y.H., a sixth-grade female student. Castella observed that the other two girls were prodding Y.H. to speak to Castella. During this encounter, Castella was informed by Y.H. that her stepfather comes into her room and lies on top of her with his clothes on without touching her in any inappropriate way, when her mother was not present.2/ Y.H. also informed Castella at lunch that her stepfather pushed her toward a wall causing her to fall into a chair and then he pulled her by the hair. After lunch, Castella went to another teacher, Philogene, to report the incident because "she wasn't sure what to do," and she wanted to know the other teacher's thoughts on Y.H.'s statement.3/ Castella contends that she was not aware that what Y.H. told her amounted to child abuse. However, when asked why she told Philogene about the incident, Castella responded, "I wanted to ask Ms. Philogene what she thought because what Y.H. told me was odd, weird." The record indicates that after hearing about the incident, Philogene told Castella to report the incident to Counselor Durden.4/ Castella testified that on March 9, 2015, she went to Counselor Durden's office to discuss what she had heard from Y.H. and the other two female students. However, Castella asserted that despite her efforts, she was not able to report the incident to Counselor Durden because she was not in her office. Significantly, Castella left the school that day without reporting the incident to any administrator on campus.5/ Inexplicably, Castella did not immediately report the female student's information on March 9, 2015, to the Department of Children and Families or to the Child Abuse Hotline. Respondent claims that she did not know the protocol for reporting child abuse. The undersigned rejects this claim as incredible and spurious. Rather, the credible and more persuasive evidence shows that it was common knowledge among the school staff, based on training and posted notices, that an incident of child abuse should be reported immediately. March 10, 2015, Incident The next day, Castella went to Counselor Durden's office immediately upon arriving at the school to report what Y.H. had told her the day before. According to school policy, Castella was mandated to report the incident to a school administrator. Counselor Durden was not an administrator, nor was she Castella's supervisor. After disclosing the nature of her visit, Counselor Durden questioned Castella about the incident and why Castella did not report the incident when she became aware of it the day before. Counselor Durden testified that, "[Ms. Castella] said a young lady, a sixth-grader, had told her during lunch that the stepfather comes into the room every night drunk and holds her down and climbs on her. So I said, 'She told you when?' And she said, 'Yesterday during lunch.' And I said, 'You didn't call it in?' And she said, 'No I didn't.' And I think she was talking about like, you know she's friendly with the kids, and she didn't want to lose her confidence, they trusted her." Castella testified that she was reluctant to immediately report the incident because she did not want to violate the female students' trust. Counselor Durden proceeded to call the Department of Children and Families while Castella was still in her office. Both joined in reporting to the Department of Children and Families what had occurred. Later that afternoon, the Department of Children and Families held a meeting at the school with Y.H., the other two girls who were with Y.H., and Castella to gather details of the suspected child abuse and to determine how to proceed with the incident. Contact With News or Media Outlets Castella contacted and voluntarily appeared on a number of local news broadcasts. She detailed the suspected child abuse incident and proceeded to give the name of the school. Petitioner's Exhibit 8, which is a Notice of Investigation signed by Castella and delivered to her, states that a faculty member may be terminated if they speak to a number of subjects about a pending investigation. The document specifies, "You are not to discuss this matter with any witnesses, parents, staff, students, or the complaining party to avoid interference with the investigation." Castella asserts that she did not violate the notice because it did not specify she could not speak to news stations. However, Principal Dunn testified that anyone, including the listed parties, had the ability to watch the news broadcast. Therefore, the undersigned finds that her appearance on the news stations violated the spirit and intent of the notice because it could have had an indirect, adverse impact on witnesses and interfered with the internal investigation by the school district.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order finding Diana Castella in violation of Counts 1, 2, and 3 of the Amended Administrative Complaint and placing her license on a one-year probationary status, during which time she be ordered to attend and successfully complete, at her expense, training related to her reporting obligations under section 1012.795(1)(b), Florida Statutes. DONE AND ENTERED this 17th day of March, 2017, in Tallahassee, Leon County, Florida. S ROBERT L. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of March, 2017.
The Issue At issue in this proceeding is whether Petitioner's request for exemption from employment disqualification should be approved.
Findings Of Fact In or about December 1998, the Department of Children and Family Services (Department) initiated an employment screening pursuant to Chapter 435, Florida Statutes, incident to Petitioner's application for employment at a child day care center in Delray Beach, Florida. That screening revealed that on September 28, 1998, Petitioner was arrested for exposure of sexual organs, a violation of Section 800.03, Florida Statutes, and unnatural and lascivious acts, a violation of Section 800.02, Florida Statutes. The screening further revealed that on October 20, 1998, Respondent entered a plea of guilty to the charges; adjudication was withheld; and Respondent was placed on probation for a term of 6 months. Given the screening results, the Department notified Respondent by letter of December 14, 1998, that he was ineligible for continued employment in a position of special trust (working with children or the developmentally disabled), and accorded him an opportunity to request an exemption under the provisions of Section 435.07, Florida Statutes. Petitioner requested such an exemption, and the Department duly-convened a hearing to consider Petitioner's request. Subsequently, the Department advised Petitioner by letter of January 29, 1999, that his request for exemption was denied, and these proceedings ensued at Petitioner's request to challenge the Department's decision. As observed in the preliminary statement, neither Petitioner nor anyone on his behalf appeared at hearing, and no proof was offered to support his claim for exemption. Such failing is dispositive of the case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered denying Petitioner's request for exemption from employment disqualification. DONE AND ENTERED this 30th day of July, 1999, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK 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 30th day of July, 1999. COPIES FURNISHED: Henry C. Cornelius 2315 Southwest 22nd Avenue Boynton Beach, Florida 33445 Colleen Farnsworth, Esquire Department of Children and Family Services 111 South Sapodilla Avenue, Suite 201 West Palm Beach, Florida 33401 Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John S. Slye, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether Respondent, a day-care center, committed the violations alleged in the Administrative Complaint, and if so, the penalties Petitioner should impose against Respondent.
Findings Of Fact Petitioner is the regulatory authority responsible for licensure and enforcement of day-care centers in Florida. Respondent is a day-care center in Miami, Florida, and currently holds child care license C11MD0340. Respondent has operated as a day-care center since April 19, 1990. At the time of the formal hearing, Kevin Lennon was the owner and operator of Respondent. S.B. and L.B. are young sisters who stayed at Respondent’s day-care center in July 2014. On July 9, 2014, one of Respondent’s employees gave S.B. and L.B. a small cup of Cheez-Its as a snack. Mr. Lennon was present when the two girls were sharing the cup of Cheez-Its. After S.B., who is the older and bigger child, finished her share of the Cheez-Its, S.B. began to hit her sister to take her sister’s share of the Cheez-Its. Mr. Lennon separated the two girls and permitted L.B. to eat her share of the Cheez-Its. Mr. Lennon testified, credibly, that he did not take the Cheez-Its from S.B. to punish S.B. Petitioner offered no competent, credible evidence to refute Mr. Lennon’s testimony. On March 25, 2014, Petitioner received from Respondent an “Application for a License to Operate a Child Care Facility” (the application). Mr. Lennon completed the application on behalf of Respondent. The application contained an attestation section that required Mr. Lennon’s signature to be notarized. On March 25, 2014, Petitioner received an attestation section (first attestation section) signed by Kevin Lennon on February 28, 2014. The first attestation section contains Ivanne Albarran’s notary seal and a signature dated February 28, 2014. Mr. Lennon testified, credibly, that he signed the first attestation section as Kevin Lennon. Mr. Albarran testified, credibly, that he signed the first attestation section as the notary public. Petitioner offered insufficient evidence to refute that testimony. The application package contains a second attestation section that was received by Petitioner on March 28, 2014. The second attestation section contains Mr. Lennon’s signature and a date of March 26, 2014. The second attestation section contains Mr. Albarran’s notary seal and a signature dated March 28, 2014. Mr. Lennon testified, credibly, that he signed the second attestation section as “Kevin Lennon.” Mr. Albarran testified, credibly, that he signed the second attestation section as the notary public. Petitioner offered no competent, credible evidence to refute that testimony.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Families enter a final order dismissing the Administrative Complaint. DONE AND ENTERED this 9th day of January, 2015, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of January, 2015. COPIES FURNISHED: Howard J. Hochman, Esquire Law Offices of Howard J. Hochman 7695 Southwest 104th Street, Suite 210 Miami, Florida 33156 (eServed) Karen A. Milia, Esquire Department of Children and Families 401 Northwest Second Avenue, Suite N-1014 Miami, Florida 33128 (eServed) Paul Sexton, Agency Clerk Department of Children and Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399 (eServed) Rebecca Kapusta, Interim General Counsel Department of Children and Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed) Mike Carroll, Secretary Department of Children and Families Building 1, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed)
