Findings Of Fact A Petitioner was tried and found guilty of a violation of Section 794.011, Florida Statutes, related to sexual battery. This finding was in the case of State of Florida vs. Claude Hiller Barton, in the Circuit Court, Fourth Judicial Circuit, in and for Duval County, Florida, Case No. 85-5199CF. On June 30, 1986, he was sentenced to life with a minimum 25 year mandatory service. He took appeal to the District Court of Appeal, First District, State of Florida, and in the action of Claude Hiller Barton, Appellant vs. State of Florida, Appellee, Case No. BO-45 and by opinion filed September 25, 1987 the judgement and sentence was responded to by per curiam affirmance. The mandate to the Circuit Court concerning disposition of the appeal in Case No. BO-45, was issued on October 13, 1987. Following his conviction, Respondent, by correspondence of May 23, 1986, noticed the Petitioner of his disqualification from continuing employment in a position as a person who works with children. The correspondence reminded the Petitioner of his right to request an administrative hearing to contest the disqualification. It further stated that given that the Petitioner had been convicted of a felony that he was not entitled to exemption from disqualification and could only challenge the accuracy of the records pertaining to his conviction. The case was forwarded to the Division of Administrative Hearings for consideration through a formal hearing. At the instigation of the Petitioner and with concurrence of Respondent consideration of this dispute was forestalled pending the outcome of the appeal. The existence of the September 25, 1987 opinion of the First District Court Appeal which affirmed the judgement and sentence was first revealed at the final hearing on August 14, 1990. Prior to that occasion numerous attempts had been made to have the parties provide status reports in the administrative case concerning the outcome of the appeal as reflected in the file in this action, to no avail. Having been unsuccessful in pursuing his ordinary remedies related to the criminal court case, Petitioner sought extraordinary relief through a writ of habeas corpus alleging ineffective assistance of appellate counsel. This was in the action of Claude Hiller Barton, Petitioner vs. Richard Dugger, Secretary, Florida Department of Corrections and the State of Florida, Respondents, in the District Court of Appeal, First District, Case No. 89-02677. That petition was denied by order of February 7, 1990, and a motion for rehearing was denied on March 16, 1990. Petitioner has made a further attempt to gain relief based upon a claim of ineffectiveness of the counsel employed to pursue his original petition for writ of habeas corpus. Acknowledgment of receipt of the most recent petition for writ of habeas corpus was provided on August 10, 1990 from the Clerk of the First District Court of Appeal.
Recommendation Based upon a full consideration of the facts found and of the conclusions of law reached, it is, RECOMMENDED: That a Final Order be entered which establishes the disqualification of the Petitioner from acting as a person who is considered as child care personnel at a child care facility or child care program. DONE and ENTERED this 24th day of October, 1990, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of October, 1990. COPIES FURNISHED: Sam Power, Department Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Charlene J. Petersen, Esquire HRS-District 4 Legal Office 5920 Arlington Expressway Post Office Box 2417 Jacksonville, FL 32231-0083 Claude Barton, #103199 Union Correctional Institution Post Office Box 221 Raiford, FL 32083
The Issue The issue in this case is whether the Petitioner should be exempted from employment disqualification, thereby allowing her to work in a position of special trust at the Hobe Sound Child Care Facility or a like facility.
Findings Of Fact Sometime during 2001, the Petitioner applied for employment with the Hobe Sound Child Care Facility. The position she applied for would have brought the Petitioner into direct contact with children. The Petitioner's desire to work at the Hobe Sound Child Care Facility is in part because at least one of her own children attends that facility, and she would have an opportunity to interact with her own children while working with other children. By letter dated December 6, 2001, the Petitioner was advised of the results of the preliminary screening, and was also advised of the procedure for requesting an exemption from employment disqualification. The Petitioner thereafter filed a timely request for exemption. Following the Petitioner's request, a committee designated by the Department conducted an informal hearing. The Petitioner participated in the informal hearing. Following the informal hearing, the committee voted to deny the requested exemption. The committee's decision to deny was based primarily on the committee members' impression that the Petitioner failed to show rehabilitation by failing to accept responsibility for the crime for which she was convicted. The committee felt that the Petitioner's continuing insistence that she was innocent of the crime and had been wrongfully convicted of crimes committed by others constituted a failure to accept responsibility for what she had done. By letter dated January 23, 2002, the Petitioner was advised that her request for exemption from employment disqualification pursuant to Section 435.07, Florida Statutes, was denied. Thereafter, the Petitioner timely filed a request for a hearing to challenge the denial of her request for exemption. The disqualification of the Petitioner is based solely on her being found guilty of the crime of third degree grand theft. When the Petitioner was charged with third degree grand theft, she entered a plea of "not guilty" and went to trial on the criminal charges. At the conclusion of the criminal trial the jury found the Petitioner to be guilty as charged, and on July 18, 1994, the Circuit Court of Martin County entered an Order Withholding Adjudication of Guilt and Placing Defendant on Probation. The events which underlie the Petitioner's criminal trial took place at the Payless Shoes store in Stuart, Florida, during the several months immediately preceding December of 1993. During that time period, the Petitioner and several other people worked at the Payless Shoes store and had access to the merchandise and to the cash register. Some, but not all, of the employees were stealing cash and merchandise from the shoe store. An audit was conducted at the subject store, and on December 3, 1993, a Loss Prevention Investigator employed by Payless Shoes interviewed the Petitioner regarding her knowledge of thefts in the store where she worked. The Petitioner cooperated with the investigator and explained to him how the employees had been stealing cash and merchandise from the store. During the interview, the investigator prepared a written statement in his own handwriting. At the end of the interview the investigator told the Petitioner that he had prepared a written statement of everything she had told him and asked her to sign the statement. The Petitioner signed the statement without reading it. Later the same date the Petitioner was arrested. At the time of her arrest she told the arresting officer that she was innocent. During the arrest process the Petitioner became aware that the statement she had signed without reading implicated herself as one of the participants in the thefts she had described to the investigator. The Petitioner contended then, and continued to contend at the hearing in this case, that the investigator who took her statement either misunderstood what she said or incorrectly wrote what she said. The Petitioner admits that she had guilty knowledge of the fact that other employees where stealing merchandise and money from the store, and she now realizes that she should have told her employer about the thefts by others. However, the Petitioner has always contended that she never participated in any thefts from the store. Without at this late date trying to determine whether the jury's finding of guilty was correct, it is sufficient to note that, her assertions of innocence of the crime charged, notwithstanding, the Petitioner presently appears to be sincerely remorseful regarding her failure to timely report to here employer the criminal actions of other employees. Further, the Petitioner now appears to understand the importance of being honest in all matters concerning one's employment. In the many years that have passed since 1993, the Petitioner seems to have made sincere efforts towards rehabilitation. She is now active in her church and is involved in raising her own children, as well as trying to be of assistance to other children in her community. She is highly motivated to work in child care. To that end she has taken numerous courses to learn how to provide good child care. She enjoys working with children and can be expected to do a good job in such a position. Following her sentence on the criminal charge, the Petitioner made good faith efforts to timely comply with all conditions of her probation. She had occasional difficulties making the financial payments required by her sentence due to difficulties in obtaining steady employment. In sum, the Petitioner is a decent and honorable person who enjoys working with children, appears to be good at working with children, and should not be disqualified from employment positions working with children.
Recommendation Based on 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's request for an exemption from disqualification in a position of special trust. DONE AND ENTERED this 19th day of July, 2002, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 19th day of July, 2002. COPIES FURNISHED: Colleen Farnsworth, Esquire Department of Children and Family Services 111 South Sapodilla Avenue Suite 201 West Palm Beach, Florida 33401 Alecia Fugate-Smith 914 East Eighth Street Stuart, Florida 34994 Paul F. Flounlacker, Jr., Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard, Room 204 Tallahassee, Florida 32399-0700 Kathleen A. Kearney, Secretary Department of Children and Family Services 1317 Winewood Boulevard, Room 202 Tallahassee, Florida 32399-0700
The Issue Whether Respondent's employee hit or forcefully grabbed children in care, as alleged in the Administrative Complaint; and, if so, whether Petitioner should impose a fine of $400.00 against Respondent, a licensed child care facility, for the commission, by an employee, of an act that meets the statutory definition of child abuse.
Findings Of Fact At all relevant times, Respondent Lincoln Marti Community Agency, Inc., d/b/a Lincoln Marti ("LMCA"), held a Certificate of License, numbered C11MD1532, which authorized LMCA to operate a child care facility (the "School") in Miami Beach, Florida, for the period from June 7, 2016, through December 4, 2016. As a licensed child care facility, LMCA falls under the regulatory jurisdiction of Petitioner Department of Children and Families ("DCF"). On August 25, 2016, Laura Pantano arrived at the School in the afternoon to pick up her child. While waiting in the reception area, Ms. Pantano noticed the real-time video feeds from the surveillance cameras in the classrooms. These live videos were displayed on multiple monitors in plain view. Ms. Pantano focused her attention on the classroom of Clara Gonzalez-Quintero. Although her child was not in Ms. Quintero's class, Ms. Pantano harbored suspicions that Ms. Quintero had been hitting children. Sure enough, right on cue, Ms. Quintero appeared to forcefully grab and hit a child. It is not disputed in this proceeding that Ms. Quintero used corporal discipline on two children, D.D. and S.M, at the very moment Ms. Pantano happened to be watching the closed-circuit television for just such an occurrence. That said, no one having personal knowledge of the incident in question testified at hearing. Ms. Pantano testified, but she was not actually an eyewitness, for she merely observed live surveillance video on a display device, not the incident itself. Naturally, the surveillance video is in evidence, allowing the undersigned (and anyone else) to see exactly what Ms. Pantano saw that day.1/ Yet, while the video evidence is both captivating and seemingly unbiased, it is a mistake to assume that the assertive narrative of this (or any) video is objective and unambiguous, for rarely is that true, if ever. Viewers of filmic evidence, including the undersigned, do not somehow become eyewitnesses to a genuine occurrence; we perceive only the video, and the video merely represents, imperfectly, the real events captured on camera. Of necessity, each viewer——such as Ms. Pantano, who as stated above was predisposed to believe the worst about Ms. Quintero——projects onto the images his or her own interpretation of the scenes depicted. As the fact-finder, the undersigned must determine the significance, meaning, and story of the images preserved in the video based upon a critical review of the film in conjunction with a careful consideration of all the available evidence. Had the fact been disputed, the undersigned would have struggled with the question of whether Ms. Quintero "struck" D.D.2/ or merely made incidental nonviolent contact of the sort parents and teachers routinely use when redirecting a disobedient child. One significant limitation of the video is that it lacks sound. During the crucial moments, Ms. Quintero appears to be reprimanding D.D., who was three years old at the time, but if so, the video provides no proof of the reasons, for we cannot hear what she is saying. At the same time, however, it is reasonable to assume that Ms. Quintero had some bona fide basis for approaching D.D., for no evidence to the contrary was offered. On the video, Ms. Quintero appears to pat D.D. on the shoulder while addressing the child. Without audio, however, this action is ambiguous. Is she punishing, exhorting, or encouraging the child? Hard to tell. D.D. seems to put his hands over his ears. Fear, protective response, or defiance? Take your pick. Then — did she just slap him? It happens so fast, the picture is not clear, and the angle of the shot less than ideal. Maybe. Something happened, to be sure, but different viewers will form different conclusions about what the video depicts. Because LMCA concedes the point, and because the filmic evidence, though ambiguous, justifies such acquiescence, the undersigned finds that Ms. Quintero administered a form of physical punishment, which violated both the law3/ and LMCA's written policy on discipline. But the undersigned does not find that the corporal discipline at issue evinced malice or cruelty. The record, in short, convinces the undersigned to find that physical contact occurred, but not violent contact. Believing that she had seen a teacher repeatedly slap a child, Ms. Pantano rushed upstairs to confront Ms. Quintero in the classroom, while she simultaneously called the police on her cellphone. When she arrived in the classroom, excited and crying, Ms. Pantano screamed accusations at the teacher, who denied any wrongdoing. The commotion drew the School's director, Yanet Perez-Cruz, to the room, where she heard Ms. Pantano, in front of the children, uttering a conditional threat to kill Ms. Quintero, the condition being Ms. Pantano's possession of a knife, which fortunately for everyone involved was not met. Within a short time, the police arrived and immediately set to work investigating the incident. Neither D.D. nor any of the other children were found to have visible physical injuries attributable to Ms. Quintero. No evidence of such was presented at hearing, and the undersigned finds that Ms. Quintero did not cause any physical harm to D.D., S.M., or any child at the School on the day in question. LMCA fired Ms. Quintero the next day, not for hurting a child, but for violating its policy on corporal punishment. As for possible mental injury, D.D. was anxious, did not sleep quite as well, and had some instances of bed-wetting after the occurrence with Ms. Quintero, according to his mother. These symptoms, however, reflected at most a marginal aggravation of preexisting conditions, and within a few weeks or so D.D. had returned to his baseline. In addition, D.D. had been receiving speech therapy, for about ten months before the incident, to treat a stutter. In the months following the occurrence at issue, after which he had been abruptly removed from the School and enrolled in another day care facility, D.D. made rapid improvement in his speech, to the point that by the time of the hearing, D.D.'s stutter was nearly gone. The record lacks convincing evidence that D.D.'s intellectual or psychological capacity was injured by Ms. Quintero, as there is no persuasive proof of any discernible and substantial impairment of D.D.'s ability to function within normal limits. To the contrary, the evidence shows that, as of the hearing, D.D. is functioning within the normal ranges of intellectual and psychological performance and not displaying any signs of even mild, much less severe, mental or emotional impairment. With regard to S.M., there is likewise no convincing evidence of any significant mental injury. Similar to D.D., S.M. was observed, by her parent, to be somewhat more anxious than usual following the incident with Ms. Quintero, but this general anxiety resolved before long and was not causing S.M. any problems at the time of the hearing. Other evidence suggests, credibly, that S.M. is (as of the hearing) a happy, intelligent, and normal child evincing no discernable impairments in intellectual or psychological functioning. In sum, neither D.D. nor S.M. suffered any physical harm at the hands of Ms. Quintero, and although there is some (but not clear and convincing) evidence that one or both children might have experienced mild emotional or psychological distress——as manifested by, e.g., bed-wetting or anxiety——in the immediate aftermath of the events at the School on August 25, 2016, it is clear that such symptoms did not persist or substantially impair either child, even briefly, and that within a few months, if not sooner, both D.D. and S.M. were back to normal. At hearing, LMAC presented Michael J. DiTomasso, Ph.D., as an expert witness. Dr. DiTomasso is a clinical psychologist who specializes in forensic psychology and, to the point, child abuse. Indeed, Dr. DiTomasso has testified frequently as an expert for DCF in dependency trials involving child abuse and child neglect. Dr. DiTomasso provided the following credible and convincing overview of the current dispute: Okay. So we have a video recording of some unpleasant behavior on the part of a teacher. And I reviewed this. I looked at it. I actually watched it a couple of times. I see that she hit the kid, she shook the child. She was unpleasant with the children. And I understand that this behavior is prohibited by the school. . . . But does the -- does what we see in this tape rise to something monstrous that we would think is going to cause significant impairment in a child's psychological life somewhere down the line? Maybe the first question is: Did it cause -- does it cause significant physical damage? But everyone says no. The police say no, the mothers say no, the children -- that went to a doctor there's no medical findings. So by every measure, DCF says no. By every measure everyone who considered actual physical damage said no. So, no, we're not at the psychological damage. What we see in these tapes, it's unpleasant, of course. But, I mean, is there anyone, really, who never saw behavior like this before in their lives? In their own family, in their own lives, in a Target. In a Target store, in the K-Mart, we see this kind of behavior. We don't like it, but we're not -- we're not looking at it as catastrophic. We're looking at it as maybe unpleasant to see. And the parents are maybe looking at it as appropriate because parents in America believe in physical discipline of their children, corporal punishment of the children -- of children is accepted by most -- most parents in America and even more here in Florida, in the south. * * * If the corporal punishment causes broken bones or fractures or bruises or welts, oh, we're talking a different name. But that's not what happened for these kids. This was ordinary run-of-the-mill corporal punishment in a place where it shouldn't have happened. But the fact that it happened in a place where it shouldn't have happened doesn't make it a traumatic event that leads to psychological harm down the line. Tr. 351-54. The undersigned agrees with the foregoing description and explanation of the video evidence. The bottom line, according to Dr. DiTomasso, is that no "meaningful disruption of a child's ability to function and enjoy his life" happened, "it's not going to happen, it shouldn't be expected to ever happen based only on the event [at the School on August 25, 2016,] and the follow-up seems to show that it hasn't." Tr. 414. The undersigned accepts Dr. DiTommasso's opinion on cause-and-effect and determines as a matter of ultimate fact that neither of the subject children suffered a "mental injury" as defined in section 39.01(42), Florida Statutes, as a result of the incident in question.4/ Ultimate Factual Determinations The undersigned determines that LMCA's employee, Ms. Quintero, while caring for children at the School on August 25, 2016, did not commit an act or omission that meets the definition of child abuse or neglect provided in chapter 39.5/
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 exonerating Lincoln Marti Community Agency, Inc., d/b/a Lincoln Marti, from the accusation of Child Abuse or Neglect as charged in the Administrative Complaint. DONE AND ENTERED this 4th day of April, 2017, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of April, 2017.
The Issue Is Petitioner eligible for Developmental Services from the Department of Children and Family Services?
Findings Of Fact Audrey Smith is the natural mother of Petitioner Chester (Charlie) Smith. She filed an application with Respondent Department of Children and Family Services Developmental Services Program on behalf of her son. The application was denied, and this case followed. Chester Smith did not appear for formal hearing. Audrey Smith represented that she had a power of attorney to act on her son's behalf and that she was his payee for federal SSI benefits, arising from Petitioner's disability and his father's death. Neither of these instruments was offered in evidence, but because she had applied to the agency on Chester's behalf and had requested formal hearing, Mrs. Smith was accepted as Petitioner's "next friend" and qualified representative. The Developmental Services Program, administered by Respondent, provides services to persons with specific developmental disabilities, including mental retardation, cerebral palsy, spina bifida, autism, and Prader-Willi Syndrome, pursuant to Chapter 393, Florida Statutes. Petitioner, born October 18, 1953, had originally been turned down for services as not meeting the statutory and rule requirements of "mental retardation." During the informal hearings following that denial and preceding referral of the disputed issues of fact to the Division of Administrative Hearings for formal hearing, Mrs. Smith asserted Petitioner's entitlement to services on the basis of "autism." She also asserted this entitlement in her request for formal hearing. In determining Petitioner's eligibility for services, agency staff psychologist Fe Ripka reviewed four psychological evaluations previously performed on Petitioner. Ms. Ripka did not testify, but her January 27, 1997, report was placed in evidence. She only reviewed evaluations done in May 1965, July 1966, February 1995, and April 1996. Ms. Ripka's degrees and titles show "M.A.," "LMHC," and "Psychologist." No specific education, training or experience on her part was related. Her report emphasized Petitioner's verbal IQ and full scale IQs as controlling of eligibility. She concluded, on the basis of her review, that Petitioner did not suffer from mental retardation. Her report made no determination on the basis of autism. Petitioner's mother related that Petitioner was deprived of oxygen at birth and never developed normally. She has presumed him "brain damaged." Petitioner has required special classes and other remedial help throughout his life. He is now 45 years old. From 2 ½ to 8 ½ years of age, Petitioner was treated at the Putnam Children's Clinic. Not much is known about the treatment. Petitioner's Exhibit 9 (also part of Respondent's Exhibit 4) contains records from the Devereux Foundation Schools of Devon, Pennsylvania, including an August 22, 1967, "Exit Interview and Discharge Diagnosis Form" with a discharge diagnosis of "ooo-x28 Schizophrenic Reaction, Childhood Type . . . autism and possible mental retardation." The "Initial Psychiatric Evaluation" of November 5, 1965, by Robert Ewalds, M.D., a psychiatrist, related that Petitioner's manner was "generally autistic," with borderline intellectual functioning, "a history of autism," and a thinking disorder/chronic schizophrenic process, and that Petitioner would require custodial care indefinitely. The January 7, 1966, "Psycho- Educational Evaluation" of F. Howard Buss, Ph.D., and W.S. Holloway, B.A., of Devereux's Psychology Department, made an "Educational Diagnosis" of Petitioner as "achieving academically at a level below measured intellectual functioning and well below chronological age expectations." Henry Platt, Ph.D., of the Psychology Department performed a July 30, 1966, "Psychological Evaluation" which related the following critical matters: Intelligence: Current intellectual functioning, as measured by the WISC, was at a low average level in the verbal area (IQ 86), submarginal in the performance area (IQ 62), with a marginal level for the full test (IQ 72). * * * . . . findings were in line with those reported on the WISC about a year ago, despite the slight drop in scores on present testing. VIQ2 PIQ3 FSIQ4 May 1965 89 68 77 July 1966 86 62 72 After Pennsylvania, Petitioner lived in Minnesota with his adult married sister until recently. He received developmental disability benefits from the State of Minnesota until he moved to Florida to live with his mother in 1997. Petitioner was tested February 14, 1995, by Scott County, Minnesota, Human Services agency (Petitioner's Exhibit 10). The Weschler Adult Intelligence Scale and the Vineland Adaptive Behavior Scale tests were administered. In a written opinion, April Leaveck, Psy.D., opined that Petitioner had scored a verbal IQ of 82; performance IQ of 67 and full scale IQ of 74, with a percentile ranking of four, which constituted a "borderline range of intellectual functioning." The Vineland testing showed a low-deficit adaptive level in each of the three domains and overall low-deficit adaptive level with an age equivalent score of seven years, eight months. Petitioner was 42 years old at the time. In the evaluator's opinion, a significant discrepancy in his verbal and performance scores reflected "brain damage at birth." All of the foregoing reports also attest to Petitioner's lifelong impairment in reciprocal interpersonal relationships and social interaction. All of them indicate he was hard to test because of distractibility. An April 1996 evaluation, performed when Petitioner was 43, showed a Stanford-Binet IQ of 59. (Petitioner's Exhibit 2) Approximately April 16, 1998, and subsequent to Ms. Ripka's review, Petitioner was tested by Larry Neidigh, Ph.D., Licensed Psychologist and Diplomate of the American College of Forensic Examiners. His Weschler test scoring when Petitioner was 45, showed a Verbal IQ of 69, a Performance IQ of 62, and a Full Scale Select IQ of 63. He opined that, applying all variables, a valid estimate of Petitioner's intellectual functioning was between 60 and 68. Petitioner is currently being seen at the Clay County Florida Behavioral Services Day Treatment Program by Russell Findley, M.D. Dr. Findley is a Florida-licensed medical physician. He is treating Petitioner for Bipolar Disorder, using a variety of modalities, including psychotropic drugs. He has concluded that Petitioner's medical history, including the historical facts of birth trauma and initiation of mental health treatment when Petitioner was only 2 ½ years old, is suggestive that Petitioner's "primary process is best described as developmental, not [a] mental health problem;" and that Petitioner has significant intellectual impairment, not consonant with BiPolar Disorder. Dr. Findley testified that Petitioner is "mildly mentally retarded," (TR 76-77) and again, "In my clinical impression, it is mental retardation." (TR 77) He did not consider "schizophrenia" to be a valid current diagnosis. Petitioner's Bipolar Disorder is in remission due to the drugs currently being administered to him. With the Bipolar Disorder in remission, what Dr. Findley sees in Petitioner is consistent with mental retardation. It is possible that the new medications render Petitioner's more recent IQ tests more accurate than the earlier ones because he is less distractible and more easily tested. With a standard deviation of two, Dr. Findley is aware of the prior IQs of 72 and 74. He has administered no IQ tests himself. He considers modern testing to be more accurate. Within the DSM-IV standards of medical/psychiatric diagnosis, he considers Petitioner to be "Axis I, bipolar disorder in remission with mild MR5 " extending over the whole of Petitioner's life. (TR 84) Dr. Findley was not asked about autism. The parties agreed to the admission of an excerpt from "Mental Retardation: Definition, Classification, and Systems of Support," published by the American Association of Mental Retardation which reads: Mental Retardation Diagnostic Features The essential feature of Mental Retardation is significantly subaverage general intellectual functioning (Criteria A) that is accompanied by significant limitations in adaptive functioning in at least two of the following skill areas: communication, self-care, home living, social/interpersonal skills, use of community resources, self-direction, functional academic skills, work, leisure, health, and safety (Criterion B). The onset must occur before age 18 years (Criterion C). Mental Retardation has many different etiologies and may be seen as a final common pathway of various pathological processes that affect the functioning of the central nervous system. General intellectual functioning is defined by the intelligence quotient (IQ or IQ-equivalent) obtained by assessment with one or more of the standardized, individually administered intelligence tests (e.g., Wechsler Intelligence Scales for Children -- Revised, Stanford-Binet, Kaufman Assessment Battery for Children). Significantly subaverage intellectual functioning is defined as an IQ of about 70 or below (approximately 2 standard deviations below the mean). It should be noted that there is a measurement error of approximately 5 points in assessing IQ, although this may vary from instrument to instrument (e.g. a Wechsler IQ of 70 is considered to represent a range of 65-75). Thus, it is possible to diagnose Mental Retardation in individuals with . . . [remainder missing] To sum up, Petitioner's documented assessments, by year and age, are as follows: Exhibit No. Date Age Full Scale IQ P-9 5/65 11 ½ 77 Other Diagnosis, if any P-9 11/5/65 12 ½ generally autistic; a history of autism; P-9 7/30/66 13 72 P-9 8/22/67 14 000-x28 schizophrenic reaction, autism and possible mental retardation P-10 2/14/95 42 74 P-2 4/96 43 59 P-6 4/16/98 45 63 true IQ between 60-68 Also, the current diagnosis of Dr. Findley, pursuant to the generally recognized authority of DSM-IV, may be summed up that Petitioner suffers from mild mental retardation, previously camouflaged by his Bipolar Disorder. Petitioner has never met the standards of personal independence and social responsibility of his chronological age. He has never held other than a protected job. He has never solely cared for his own person. Since infancy, he has been under the care and supervision of either his family in Pennsylvania, his adult sister in Minnesota, where he has long received developmental benefits, or his mother since 1997. He has suffered from impairment in reciprocal social interaction continuously since infancy.
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 determining Petitioner eligible for "autism" benefits and denying him retardation benefits. DONE AND ENTERED this 8th day of January, 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 8th day of January, 1999.
The Issue The issue in this case is whether Petitioner, Robert D. Taylor, is eligible for the services offered by Respondent's Developmental Services Program.
Findings Of Fact Petitioner, Robert D. Taylor (Petitioner), filed an application with Respondent, the Department of Children and Family Services (Department), to receive services of the Department's Developmental Services Program. Based on information provided by Mrs. Tye, the suspected developmental disability/medical conditions which were the basis for Petitioner's potential eligibility were mild mental retardation and behavior problems. Following submittal of Petitioner's application, his eligibility for the Development Services Program was reviewed and determined by Dr. Bruce Crowell, a licensed psychologist employed by the Department. In order to determine Petitioner's eligibility, Dr. Crowell reviewed Petitioner's school psychological evaluations, all of which were completed prior to Petitioner's eighteenth birthday. According to Petitioner's school psychological evaluations, the Wechsler Intelligence Scale for Children, Third Edition, was administered to Petitioner in January 1993. Petitioner obtained a verbal Intelligence Quotient (IQ) of 80, a performance IQ of 82, and a full scale IQ of 79. Petitioner was also evaluated by Dr. Ruth Nentwig, a licensed psychologist, in June 16, 1999. As part of her evaluation, Dr. Nentwig administered the WAIS-III, an instrument that measures an individual's overall intellectual functioning. On the WAIS-III, Petitioner obtained a verbal IQ of 86, a performance IQ of 80, and a full scale IQ of 82. This evaluation was completed prior to Petitioner's eighteenth birthday. Based upon the statutory criteria, Petitioner is not eligible for services provided by the Department's Developmental Services Program. The IQ scores obtained by Petitioner place him in the low average to borderline intellectual functioning level and are not indicative of significant cognitive or intellectual functioning impairment reflective of retardation. Petitioner would have to obtain a full scale IQ score of 69 or lower to be considered retarded and eligible for the Department's Developmental Services Program. Moreover, manifestation of such impairment would have to be documented prior to age 18 in order to demonstrate eligibility for the program.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Respondent, the Department of Children and Family Services, enter an order denying Petitioner's application for services through the Developmental Services Program. DONE AND ENTERED this 21st day of April, 2000, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD 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 21st day of April, 2000. COPIES FURNISHED: Robert D. Taylor c/o Sarah Tye 1455 Winston Road Fort Myers, Florida 33917 Eugenie Rehak, Esquire Department of Children and Family Services Post Office Box 60085 Fort Myers, Florida 33906-0085 Virginia Daire, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John S. Slye, General Counsel Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether the Petitioner is eligible for services offered by Respondent to the developmentally disabled under Chapter 393, Florida Statutes (1995).
Findings Of Fact James Champion is a nineteen year old male, born January 22, 1978, who is a permanent resident of the State of Florida. Petitioner currently lives with his natural mother, Susan Champion, who provides him food, shelter and assistance. Petitioner had a normal developmental history until the onset of seizures at the age of four, coinciding with a DPT inoculation. Since then he has had several types of seizures, and has been treated with multiple anti-epileptic medications without success. Currently, Petitioner experiences seizures on an almost daily basis. Petitioner has been oppositional, defiant, and at times volatile in his moods, and can be verbally aggressive. Due to his epilepsy and behavioral difficulties, while in school, Petitioner was placed in a special needs program with small class size and a one-on-one aide. Petitioner graduated from MacArthur North High School in Hollywood, Florida in 1996, with a special diploma. As a child, Petitioner had been given IQ tests. When he was twelve years old, a psychological assessment was performed, yielding a verbal IQ of 100, performance IQ of 88, and full scale IQ of 93. At the age of fourteen, he was tested again, using the Wechsler Intelligence Scale for Children-Third Edition (WISC- III). Intelligence testing yielded a verbal IQ of 71, performance IQ of 74, and a full scale IQ of 70. This testing revealed functioning in the Borderline range (second percentile rank) with a six point margin of error. This level of intellectual functioning reflected a 23 IQ point loss from previous testing. A few months past his eighteenth birthday, Petitioner was tested using the Wechsler Adult Intelligence Scale, Revised (WAIS-R) and other tests. On the WAIS-R, Petitioner yielded a Verbal IQ of 74, performance IQ of 70, and a full scale IQ of 71. Petitioner was diagnosed as having [Axis I] Dysthymic Disorder (300.4); [Axis II] Borderline Intellectual Functioning (V62.89) and Personality Disorder Due to Medical Condition (310.1); and [Axis III] Epilepsy. This test confirmed that Petitioner was functioning in the Borderline range of intellectual functioning. This drop in test results is accounted for as a result of brain damage caused by Petitioner’s continuing episodes of epilepsy. Applying the margin of error to the lower spectrum, the 70 and 71 test results become 67 and 68, respectively. Taking the totality of the circumstances, it is persuasive that Petitioner has shown that he has tested at an IQ level of approximately 70 or below The accepted criteria used for determining mental retardation and used by Respondent to determine eligibility for its Developmental Services Program is significantly subaverage intellectual functioning (an IQ approximately 70 or below on an individually administered IQ test); concurrent deficits or impairments in present adaptive functioning in at least two of the following areas: communication, self- care, home living, social/interpersonal skills, use of community resources, self- direction, functional academic skills, work, leisure, health, and safety; and the onset is before 18 years. 12 In determining an individual’s eligibility for its Developmental Services Program, Respondent has a two-step process. First, it determines whether the individual meets the IQ requirement for mental retardation. If, and only if, the individual satisfies this first step, does Respondent proceed to the second step which is determining whether the individual meets the adaptive functioning requirements. Respondent’s evaluator determined that Petitioner failed to satisfy the IQ requirements and, therefore, it was not necessary to examine Petitioner’s adaptive functioning. Petitioner’s IQ results in his teens should be evaluated from the lower tested result, i.e., at 70, and the margin of error should be placed at the lower, not the higher, spectrum (-3). The lower tested result becomes 67, placing Petitioner in the mild mental retardation category. There was some evidence that Petitioner has deficits in adaptive functioning in communication, home living, social/interpersonal skills, self-direction, work, and safety. However, Respondent’s evaluator did not evaluate Petitioner in this area and the testimony of Petitioner’s mother is insufficient to meet the burden of proof necessary in this forum. The onset of Petitioner’s condition occurred prior to his eighteen birthday.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Respondent issue an order determining that prior to his eighteenth birthday, Petitioner has suffered from “significantly subaverage general intellectual functioning.” However, the evidence is insufficient to presently establish if it exists concurrently with deficits in adaptive behavior. It is further RECOMMENDED that this matter be remanded to Petitioner’s evaluator to determine if Petitioner has deficits in adaptive behavior in two or more areas and would therefore, be eligible for developmental services offered by Respondent. DONE AND ENTERED this 11th day of June, 1997, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 11th day of June, 1997. COPIES FURNISHED: Susan C. Champion, Parent 104 Lake Gem Drive Longwood, Florida 32750 Eric Dunlap, Esquire District 7 Legal Office Department of Children and Families 400 West Robinson Street, Suite S-1106 Orlando, Florida 32801 Gregory D. Venz, Agency Clerk Department of Children and Families 1317 Winewood Boulevard, Room 204-X Tallahassee, Florida 32399-0700 Richard Doran, General Counsel Department of Children and Families 1317 Winewood Boulevard, Room 204 Tallahassee, Florida 32399-0700
