The Issue The issue in this proceeding is whether the Department of Children and Family Services should renew the foster care license of Gloria J. Smith.
Findings Of Fact Petitioner, Gloria J. Smith, is an elementary school teacher. She previously was employed by the Ocala Police Department as a reserve officer. Petitioner has been a foster parent for approximately three years. According to Diana McKenzie, the Department's Acting Supervisor for relicensing, retention, and facilities, there were no allegations made against Petitioner prior to this incident. J.F. was a foster child of Petitioner's on two separate occasions. The first time, J.F. was placed with Petitioner, and was returned to her mother. The date of J.F.'s first placement with Petitioner is unclear from the record. J.F. returned to Petitioner for approximately two years and was returned to her mother again in May of 2001. In October of 2000, Petitioner took J.F. to the Ocala Police Department regarding an allegation of possible abuse that occurred in the past. The record is unclear as to the time sequence when this occurred in relation to when J.F. was placed with Petitioner. In any event, Petitioner's taking J.F. to the Ocala Police Department was related to alleged events that did not occur during the time J.F. was in Petitioner's foster care. In September 2001, Petitioner received a call from the Department informing her that an abuse allegation had been made and that the Department would be out to pick up her foster children. At the time, Petitioner had three foster children including J.F. Petitioner also has three children of her own including her son, J.S., who was approximately 14 years old in September 2001. Despite repeated efforts, she was not able to get information regarding the abuse allegation. No one from the Department came to her home to investigate the abuse allegation. Ocala Police came to her home but Petitioner was not at home at the time the police arrived. Petitioner took her son, J.S., to the Ocala Police Department for reasons she understood to be associated with the abuse allegation. However, she was not present during any interview of J.S. by the Ocala police. No other competent facts were established to support the allegations contained in the November 16, 2001, letter from the Department to Petitioner denying relicensure.
Recommendation Based upon the 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 license renewal. DONE AND ENTERED this 24th day of July, 2002, in Tallahassee, Leon County, Florida. BARBARA J. STAROS 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 24th day of July, 2002.
Findings Of Fact Respondent John T. Hagler held Florida teacher's certificate No. 241870 covering the areas of biology, English and general science, valid through June 30, 1991. He worked as a substitute teacher for the Santa Rosa County School Board during the 1989-90 and 1990-91 school years. Afflicted with Downs syndrome, respondent's thirteen-year-old foster son, E. C., also had pronounced behavioral problems. Slender but not weak, he made sexual advances toward teachers and others, overturned desks, destroyed property, emerged from the school bathroom naked, lay down on a table and refused to move, threw things, engaged in self abuse, and was generally aggressive toward others, both verbally and physically, according to Catherine Irwin, a behavior specialist who saw him weekly. It was more than E. C.'s mother, an alcoholic, could cope with on her own, so she voluntarily relinquished custody of him. Under contract to the Department of Health and Rehabilitative Services (HRS), Lakeview Center, Inc. in Pensacola trained respondent John Thomas Hagler and his wife in crisis prevention intervention and otherwise helped them secure licenses as foster parents, before HRS placed E. C. in their care, in March of 1990. According to the behavior specialist who monitored E. C. during his time with the Haglers, his undesirable behavior decreased. She reported seeing "laughing moments, tender moments and structure" in the foster home Mr. and Mrs. Hagler provided for E. C. Respondent and his wife Kathleen "Kitty" Hagler deal in antique glass, selling "depression ware" and other glass objects at flea markets. They took E. C. with them on several of these occasions, including on Saturday, July 7, 1990, when they went to the T & W Flea Market in Pensacola and set up their display at Table 210, under a big oak tree. Irene Rathbone, who left before all the excitement, saw E. C. at the flea market that day sitting at a TV table calmly eating a hot dog. Later E. C. had moved to the front seat of the Haglers' Ford pickup, driver's side. Without warning, he lunged for Mrs. Hagler, grabbing her crotch and a breast, or so she told Mr. Hagler afterwards. By the time Mr. Hagler, who heard her scream and came running to her assistance, reached her, she had pushed E. C. to the ground and was fending him off with her leg. E. C. was seated on the ground with his back against the truck, holding on to Mrs. Hagler's leg. Respondent leaned down, slipped his arms under E. C.'s from behind, grabbed his own wrist, lifted and dragged E. C. into an unshaded clearing a few feet away, and told him to stay there. Concerned citizen(s) notified the Escambia County Sheriff's office. Deputies rescued E. C. from his "time out" after about 25 minutes, and arrested Mr. and Mrs. Hagler. What they mistook for blood around Eric's mouth turned out to be cherry-flavored Kool-Aid (of which E. C. had drunk about a half gallon that day.) At the time of the arrest, the temperature was about 95 or 96 degrees F., but E. C. was not dehydrated or sunburnt. In the Circuit Court for Escambia County, an unsigned, amended information was filed alleging eight counts against both Mr. and Mrs. Hagler, who retained Gary Porch, Esquire, to assist in their defense. As the trial approached, the State offered to drop the charges it had laid against Mrs. Hagler. At the hearing in the present case, Mr. Porch testified that he advised Mr. Hagler his chances of acquittal were better than 50-50. Even though the State did not condition its offer not to prosecute Mrs. Hagler on Mr. Hagler's cooperation, Mr. Hagler felt the prosecutor might go forward against her if he did not cooperate, so he pleaded nolo contendere to count four, which alleges that he deprived E. C. "of necessary food or shelter or inflicted physical injury to E. C. by failing to provide water or shade to the child during excessive summer heat, in violation of Section 827.04(2), Florida Statutes." On April 17, 1990, Judge Collier adjudicated John Thomas Hagler guilty of count four, "negligent child abuse," Petitioner's Exhibit No. 1, and placed him on six months' probation, "on condition [that he] pay $75.00 court cost[s], and have no contact with similar type children, or be a foster parent." Id. Escambia County school officials first learned of events at the flea market from the Pensacola News Journal which published an account on July 9, 1990. Dr. Charles Boyd removed his name from the roster of substitute school teachers. The Escambia County School Board will not employ teachers convicted criminally of child abuse.
Recommendation It is, accordingly, RECOMMENDED: That petitioner suspend respondent's teacher's certificate for five days. DONE and ENTERED this 16th day of September, 1992, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of September, 1992. COPIES FURNISHED: Honorable Betty Castor Commission of Education The Capitol Tallahassee, FL 32399-0400 Sydney H. McKenzie, General Counsel Department of Education The Capitol, PL-08 Tallahassee, FL 32399-0400 Margaret E. O'Sullivan 352 Florida Education Center 325 West Gaines Street Tallahassee, FL 32399-0400 John T. Hagler 101 San Carlos Avenue Gulf Breeze, FL 32561
The Issue Whether Respondent's, Brevard County School Board, decision to terminate Petitioner's, Ruth Henderson, continuing teaching contract was appropriate based on allegations that Petitioner physically abused three students.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of fact are made: Petitioner is a teacher who was employed by Respondent from September 1958 to December 2002. In May 1965, Petitioner and Respondent entered into a Continuing Contract of Employment which continued until her termination. She had taught at Cambridge Elementary School, Cocoa, Florida, from September 1980 until her termination in 2002. Petitioner has a bachelor's of science degree in elementary education and a master's of science degree in reading, K-12. Petitioner's annual performance evaluations over her 44-year teaching career reflect that she was an effective teacher with no indication of the problems of which she stands accused. Respondent operates, controls, and supervises the free public schools of Brevard County, Florida. It has entered into individual and collective agreements with the teachers it employs and publishes bylaws and policies that control the activities of its teaching professionals. School started on August 8, 2002, for the 2002-2003 school year. Historically, Petitioner had taught third grade; this year she was teaching kindergarten for the first time. On August 22, 2002, S.L. and R.G., two of the most active and disruptive children in Petitioner's kindergarten class, were engaged in a crayon fight (throwing crayons at each other). Petitioner removed S.L. from his normal seat and placed him in the "time out" chair, a form of approved discipline. S.L. required assistance in the form of taking him by the hand or arm and leading him to the "time out" chair because he sometimes refused to go as directed. On this occasion, August 22, 2002, Petitioner held S.L. by the arm and shook him as she placed him into the "time out" chair, accidentally causing him to bump his head against a bookcase. When S.L. arrived home from school that day, he tearfully reported the incident to his mother, Y.J. She observed a bump/lump on his head consistent with his story of bumping his head on the bookcase. The following morning, Friday, August 23, 2002, Y.J. went to Cambridge Elementary and, in the absence or unavailability of the principal, reported the incident to Bernadine Blake, a guidance counselor. Ms. Blake e- mailed Principal Sandra Brown, informing her of Y.J.'s report of the incident. This e-mail was first read by Principal Brown on Tuesday, August 27, 2002. On that day, August 27, 2002, R.G. was involved in a disciplinary incident with Petitioner. As a result of R.G.'s misconduct, Petitioner instructed R.G. to stay behind in the classroom while the other children left the room. Petitioner then removed her sandal and spanked R.G.'s buttocks with the sandal. Even though the children were removed outside the classroom, the incident was observed by a child, J.T. When R.G. was picked up at school that day, he reported the incident to his step-father; later the same afternoon, R.G.'s parents returned to Cambridge Elementary and reported the incident to Principal Brown. On August 27, 2002, a meeting took place among Petitioner, Principal Brown and R.G.'s parents; at that time, Petitioner denied the incident as reported by R.G. and later denied the incident as reported by S.L. On the same day, August 27, 2002, the incident involving R.G. was reported to the Cocoa Police Department. On August 28, 2002, Cocoa Police Department Detective David Baker, an officer specially trained in child abuse investigation, initiated an investigation of both incidents. He interviewed parents, student victims, and student witnesses and arranged to have several children interviewed by the Brevard County Child Protection Team. Most of the child victims and witnesses were interviewed by the Child Protection Team on September 3, 2002; one child witness was interviewed on September 10, 2002. Child Protection Team interviews are conducted in a non-threatening environment by individuals specially trained to elicit information by asking age-appropriate questions designed to educe responses regarding various forms of child abuse. These interviews take place in a children's playroom at a local hospital and are videotape recorded by hidden cameras. The testimony of the child victims and witnesses preserved on videotape and elicited at the final hearing contained inaccuracies and confusion one would expect of children who were five and six years old. However, each child's testimony was credible considering their age and innocence. On the whole, the testimony of the child victims and witnesses was consistent regarding the occurrence of the incidents giving rise to the Petition For Termination. One child, J.T., reported having been slapped by Petitioner. This report is not considered credible based on the lack of timeliness of the report and lack of corroborating witnesses. As a part of Petitioner's continuing contract with Respondent, she agreed to faithfully observe rules and regulations of Respondent as they related to her teaching responsibilities. Respondent has a rule against corporal punishment of students. Petitioner was aware of the rule against corporal punishment of students.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order finding that Petitioner inappropriately utilized corporal punishment in the discipline of two students, endangering their physical health and safety; that she be suspended from employment without pay for seven months beginning December 11, 2002; and that she be placed on 24 months' probation upon her return to teaching. DONE AND ENTERED this 3rd day of July, 2003, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 3rd day of July, 2003. COPIES FURNISHED: Alan S. Diamond, Esquire Amari & Theriac, P.A. 96 Willard Street, Suite 302 Cocoa, Florida 32922 Adrienne E. Trent, Esquire 700 North Wickham Road, Suite 107 Melbourne, Florida 32935 Honorable Jim Horne Commissioner of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street 1244 Turlington Building Tallahassee, Florida 32399-0400 Dr. Richard A. DiPatri, Superintendent Brevard County School Board 2700 Judge Fran Jamieson Way Viera, Florida 32940-6699
The Issue The issues are: Whether children who were adopted through a private adoption agency are entitled to tuition waiver; and Whether Petitioner timely requested a final hearing.
Findings Of Fact Based upon the stipulations of the parties and the evidence presented at hearing, the following relevant Findings of Fact are made. Petitioner adopted four children (“the children”), who are siblings, after the biological parent’s parental rights were terminated. The parental rights were terminated on June 27, 2016. Petitioner seeks a college tuition waiver for the children. The Department is the state agency responsible for reviewing and approving requests for adoption assistance. Community Based Care of Central Florida (“CBC”) is the licensed child-placing agency that has been designated as the agency to facilitate such requests. The children were removed from the custody of their biological mother (L.H.) due to her inability to provide food, clothing, medical care, and other material needs for the children during a shelter hearing in 2014. The children were temporarily placed in two separate homes. On January 13, 2014, three of the children were placed with Petitioner. On June 14, 2014, one child was placed with a different caretaker. Petitioner desired to adopt the children so they could remain together. Jennifer Peterson, adoption manager with CBC, testified at hearing that CBC reviews requests for adoption subsidies, conducts home studies, and ensures compliance with adoption procedures. Ms. Peterson explained the process for adoption from the Department if two families are interested in adopting the same children. An adoption review committee (“adoption committee”) determines whether a person is appropriate to adopt children. An adoption committee convened to determine whether Petitioner would be eligible to adopt the children. At the time, the Department’s Petition for Termination of Parental Rights was pending. Due to Petitioner’s desire that the children remain together, she retained Florida Home Study LLC (“Florida Home Study”) to assist with the adoption process. Florida Home Study is a private, Florida- licensed, child-placing agency and holds the same license as CBC. Florida Home Study filed a Motion to Intervene in Seminole County, Circuit Court, Seventh Judicial Circuit, Case Number 13-DP-0123 (dependency case) on Petitioner’s behalf. The court granted the intervention on November 3, 2015. The judge entered an order which states in pertinent part: That jurisdiction will be maintained by this Court and the Department of Children and Families will abate the current Termination of Parental Rights while the private termination of parental rights and adoption case is completed in family court. Abatement of the petition to terminate parental rights before the adoption committee made a final determination. That Florida [Home Study] will assume responsibility of the adoption case. That Florida [Home Study] will file a report with all parties and the Court every 90 days until the completion of the case. A home study was completed by Florida Home Study on March 6, 2016. Florida Home Study filed a Petition to Terminate the Parent's Parental Rights, which was granted on June 28, 2016. The order terminating parental rights in pertinent part states: Under section §39.811(4), Florida Statutes, the Children [N.W., A.H., K.H., and A.W.] are permanently committed to Florida Home Study LLC for the purposes of subsequent adoption. Under section §39.811(2), Florida Statutes, the Children [N.W., A.H., K.H., and A.W.] are placed in the temporary legal custody of Florida Home Study LLC, under the protective supervision of the State for the purposes of subsequent adoption. The adoption took place on or about December 16, 2016. Adoption assistance is available to prospective adoptive parents and adopted children to provide financial assistance and services including a college tuition waiver. In September 2016, Petitioner submitted an application for adoption assistance. The children were classified as “special needs” as they were adopted as a sibling group and as a result of that classification, were eligible for adoption assistance.1/ Ms. Peterson reviewed the adoption assistance request for Petitioner. She reviewed the case history and actions of the case manager. Respondent approved the request and granted Petitioner a maintenance subsidy until the children turn 18, an attorney fee credit, and Medicaid until age 18. While Respondent granted a portion of Petitioner’s request for assistance, it denied the request for tuition waiver. The Department issued a formal notice of its decision to deny (“Notice”) on December 21, 2016, and served it on Petitioner by Certified U.S. Mail. Respondent provided notice to Petitioner of the procedural requirements to challenge the agency action. The Notice stated: RIGHT TO ADMINISTRATIVE PROCEEDING IF YOU BELIEVE THIS DECISION IS IN ERROR, YOU MAY REQUEST AN ADMINISTRATIVE HEARING IN ACCORDANCE WITH THE BELOW "NOTIFICATION OF RIGHTS UNDER CHAPTER 120, FLORIDA STATUTES" NOTIFICATION OF RIGHTS UNDER CHAPTER 120, FLORIDA STATUTES IF YOU BELIEVE THE DEPARTMENT'S DECISION IS IN ERROR, YOU MAY REQUEST AN ADMINISTRATIVE HEARING UNDER SECTIONS 120.569 AND 120.57, FLORIDA STATUTES, TO CONTEST THE DECISION. YOUR REQUEST FOR AN ADMINISTRATIVE HEARING MUST BE RECEIVED BY THE DEPARTMENT BY 5:00 P.M., NO LATER THAN 21 CALENDAR DAYS AFTER YOU RECEIVED NOTICE OF THE DEPARTMENT'S DECISION. You must submit your request for an administrative hearing to the Department at the following addresses: Brian Meola, Assistant Regional Counsel Department of Children & Families 400 W. Robinson Street, 1129 Orlando, FL 32801 IF YOUR REQUEST FOR AN ADMINISTRATIVE HEARING IS NOT RECEIVED BY THE DEPARTMENT BY THE ABOVE DEADLINE, YOU WILL HAVE WAIVED YOUR RIGHTS TO A HEARING AND THE DEPARTMENT'S PROPOSED ACTION WILL BE FINAL. Petitioner received the Notice on December 24, 2016. Twenty-one days from the date of receipt of the Notice was January 16, 2017. Petitioner submitted a written request for a final hearing by email through her attorney, on January 23, 2017. The letter indicated in the first sentence, “Please be advised that this office has been retained to appeal the above decision [Denial of Request for Tuition Waiver] rendered on December 21, 2016.” The record contains no additional evidence regarding a written notice of appearance related to denial of the tuition waiver.
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 Petitioner’s request for an administrative hearing as untimely filed. DONE AND ENTERED this 7th day of July, 2017, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN 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 7th day of July, 2017.
The Issue The issue is whether Respondent properly denied Petitioner's application for a license to operate a foster home.
Findings Of Fact In February 1990, Petitioner married Reverend Robert E. Osborne, Jr. In 1992, Petitioner lived at 6040 Oscar Road in Greenwood, Florida. On November 21, 1992, Willie Cobb, Petitioner's adult friend, confronted Petitioner at a convenience store in Greenwood, Florida. He wanted Petitioner either to let him drive her car or to give him a ride. Petitioner refused Mr. Cobb's demands because he was intoxicated. Subsequently, Petitioner signed an affidavit charging Mr. Cobb with domestic violence. The charging document indicates that Mr. Cobb's address was the same as Petitioner's at 6040 Oscar Road, Greenwood, Florida. On November 23, 1992, Mr. Cobb entered a guilty plea to the domestic violence charge in the County Court of Jackson County, Florida. Mr. Cobb's sentence included, but was not limited to, one year of probation. On December 31, 1992, Willie Cobb stabbed Petitioner in the shoulder with a knife in the kitchen of her home at 6040 Oscar Road, Greenwood, Florida. Petitioner signed an affidavit charging Willie Cobb with aggravated battery. The charging document that Petitioner signed lists Mr. Cobb's address as 6040 Oscar Road, Greenwood, Florida. The resulting criminal case against Mr. Cobb was eventually dismissed because Petitioner failed to appear for two interviews with the prosecutor. In April 1993, Respondent's staff investigated allegations of sexual abuse of Petitioner's daughter, Jennifer Smith, by Willie Cobb. Jennifer Smith was 11 years old at the time. The resulting Florida Protective Services System case was closed without classification. Petitioner testified during the hearing that Willie Cobb was not living in her home in April 1993. Petitioner's testimony on this point is not persuasive. Even so, there is no competent evidence to support hearsay allegations that Willie Cobb sexually abused or molested Jennifer Smith in April 1993. In November 1993, Reverend Osborne, Petitioner's husband, lived with Petitioner at 6040 Oscar Road in Greenwood, Florida. Several other family members resided at the same address, including Petitioner's daughter, Jennifer Smith, and her nine-year-old granddaughter, Terri Hayes. Willie Cobb occasionally did yard work and odd jobs around the home at 6040 Oscar Road in Greenwood, Florida in November 1993. Petitioner's testimony that Willie Cob was not her boyfriend and did not live in the same house in November 1993 is not persuasive. On the evening of November 28, 1993, Petitioner entertained some of her friends, including Willie Cobb, at her home at 6040 Oscar Road, Greenwood, Florida. While Petitioner was with her friends in the yard, Willie Cobb was in the house with Terri Hayes. Someone called the police, alleging that Mr. Cobb hit Terri Hayes in the jaw in an attempt to take $20 from her. Someone also made a call to the Florida Protective Services System. During Respondent's subsequent investigation, Petitioner stated that Mr. Cobb just tapped Terri Hayes on the head without hurting her. However, she was not an eyewitness to the alleged incident. During the hearing of the instant case, Terri Hayes testified that Willie Cobb never hit her. Her testimony is credible and without contradiction. On August 20, 1994, Willie Cobb was arrested for obstruction of justice. The charging document indicates that Mr. Cobb lived at 6040 Oscar Road, Greenwood, Florida. Mr. Cobb pled guilty to resisting arrest without violence. On January 19, 1995, the County Court Judge in Jackson County, Florida, sentenced Mr. Cobb to one year in jail. In October 1994, Respondent's staff was called to investigate allegations that Petitioner had slapped and punched her daughter, Jennifer Smith, in the face. Respondent's investigation resulted in the case being closed without classification. During the hearing of the instant case, neither Petitioner nor Respondent presented testimony regarding Petitioner's alleged physical abuse of her daughter, Jennifer Smith, in October 1994. There is no competent evidence that such an incident ever occurred. Later in 1994, Petitioner moved to the state of Washington, where she worked as a caretaker in a group home. Petitioner's daughter, Marian, and Marian's seven-year-old son, Trammel, also moved to the state of Washington. Petitioner's daughter, Marian, subsequently abandoned Trammel, leaving him with some of her friends. When Petitioner learned that her grandson, Trammel, had been abandoned, Petitioner picked him up and took him to the hospital. Respondent's counterpart in Washington tried to place Trammel in foster care. However, Petitioner eventually got official custody of her grandson. Trammel still lives with Petitioner as her adopted son. There is no evidence that Petitioner ever abandoned one of her children, grandchildren, or any other child for which she was responsible.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent enter a final order granting Petitioner a license to operate a foster home. DONE AND ENTERED this 12th day of June, 2001, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 12th day of June, 2001. COPIES FURNISHED: Mary Collins Post Office Box 208 Greenwood, Florida 32443 John R. Perry, Esquire Department of Children and Family Services 2639 North Monroe Street, Suite 252A Tallahassee, Florida 32399-2949 Virginia A. Daire, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether the Petitioners are entitled to participate in the Florida Retirement System (FRS).
Findings Of Fact The Respondent, Department of Management Services, Division of Retirement (Respondent or Department), is the state agency charged with the responsibility of administering the FRS. Accordingly, the Respondent must resolve as part of its normal course of duties whether or not individuals are eligible to participate in the FRS. The Petitioner, Eric Eggen, is an attorney authorized by the Florida Bar to practice law within the State of Florida. Mr. Eggen has practiced law since 1974. On March 15, 1991, Mr. Eggen was appointed by the Chief Judge of the First Circuit to serve as a "part time Child Support Hearing Officer." Mr. Eggen was directed to perform such duties as part of a program that coordinates the enforcement of child support. Although Florida's First Circuit encompasses more than two counties, the vast majority of Mr. Eggen's work has been performed for and funded primarily by Escambia County and Santa Rosa County. The child support program pertinent to these cases is a federally funded program that channels monies from the federal government to local governments through the State Department of Revenue. Local governments are required to "match" a certain percentage in order to receive the federal funds. In these cases, the First Circuit (when the program was initiated) decided to use non-Article V hearing officers to perform the work. This process had been approved by the Florida Supreme Court and allows the judges of the First Circuit more time to perform their other responsibilities. Accordingly, for reasons not fully set forth in this record, Mr. Eggen was selected to be the hearing officer for the First Circuit child support enforcement program. How or by whom Mr. Eggen would be compensated for his efforts was not set forth by any written document. He was simply designated by the Chief Judge to be the person who would do the work. The work consisted of conducting child support hearings to determine whether child support was owed, whether someone had the ability to pay child support, and whether someone might be willfully refusing to pay child support. Issues such as paternity required an Article V judge. Mr. Eggen was not authorized to make such determinations. Initially the work was considered part-time, but as the volume of cases increased over time Mr. Eggen's ability to perform other legal work diminished. He maintains that the child support enforcement work now consumes his full-time schedule. Exactly when Mr. Eggen went to full-time work as a hearing officer was not proved. The contracts governing how monies are treated by Escambia County and Santa Rosa County do not include any specification regarding the Petitioners by name. Presumably any individual performing Mr. Eggen's duties would be entitled to the compensation he receives for the work performed. In fact, when Mr. Eggen substitutes for another hearing officer he is similarly compensated. Mr. Eggen does not have a permanent office within the court facilities, does not receive office supplies through the court or county facilities, and does not have sick leave or annual leave through any agency. When Mr. Eggen performs the work, he is paid by submitting invoices to the counties for whom the work is performed. Neither the First Circuit, the Court Administrator's Office, nor the Department of Revenue pays Mr. Eggen directly for the work performed. In remitting funds to Mr. Eggen the counties do not deduct social security, withholding, or any other amount such as medical insurance costs. There is no evidence that Mr. Eggen receives any benefits such as medical insurance, dental insurance, or deferred compensation through any entity. Further, there is no evidence that those types of benefits were made available to Mr. Eggen but declined by him. Typically those types of benefits are available to full- time state employees. At all times prior to the initiation of these cases, the Petitioner Eggen held himself out as "self-employed." Mr. Eggen's work as a hearing officer did not preclude him from representing private clients on matters not in conflict with his role as the child support enforcement hearing officer. The extent of Mr. Eggen's private practice before the volume of child support enforcement hearings caused him to work full-time as a hearing officer is not proved. Whether or not he could perform other legal work at this time is also unknown. The Petitioner Munro is a full-time employee of Mr. Eggen. She is paid a salary and receives a W-2 from Mr. Eggen. Her services to the child support enforcement program are billed to the counties at a daily rate as "clerical assistance." Mrs. Munro designates herself as a "judicial assistant." Mr. Eggen uses monies from the paid county invoices to partially fund Mrs. Munro's monthly wage. Mrs. Munro was hired by Mr. Eggen in approximately 1975. No one from the counties, the Court Administrator's Office, or the Judges of the First Circuit had any input to Mr. Eggen's selection of Mrs. Munro. No one from those entities can fire Mrs. Munro, discipline her, reward her, or pay her. Her sole source of remuneration flows through Mr. Eggen. How Mrs. Munro accounts for her work time to Mr. Eggen was not proved. Neither Mr. Eggen nor Mrs. Munro is required to account for time spent on child support cases to the Court Administrator's Office, the Judges of the First Circuit, or the Department of Revenue. The Petitioners Eggen and Mrs. Munro set the hearing schedule for the child support cases, coordinate the hearings with court space available to conduct the cases, and complete the paperwork associated with the cases at their own designated pace. No one instructs Mr. Eggen as to when he must work, how he must work, or whether he must work. If Mr. Eggen chose not to work, he would not be paid. The completion of the work drives the payments. No work and no invoice to counties would lead to no compensation to Mr. Eggen. Whether Mrs. Munro would be paid by Mr. Eggen under those circumstances was not proved. Neither Petitioner is identified or specified as an employee of the Court Administrator's Office. Neither Petitioner is identified or specified as an employee of the First Circuit. Neither Petitioner is identified or specified as an employee of the Department of Revenue. Neither Petitioner holds a position or job classification that has been identified, specified, or funded by the Florida Legislature. Prior to the initiation of this action, neither Petitioner had ever publicly claimed to be a "state employee." There is no evidence that either Petitioner received a statement of benefits accrued from any state entity setting forth the Petitioners' entitlements or declined benefits. Whether or not any entity pays workers' compensation, leave, or insurance benefits for the Petitioners was not proved. There is no evidence that any state, court or county agency does so. The Court Administrator of the First Circuit is a state agency as contemplated by Chapter 121, Florida Statutes. When the Petitioners first believed they were entitled to benefits as an "officer" or "state employees" was not proved. Clearly, the first claim for FRS entitlement was not filed until 2001, some ten years after Mr. Eggen had been designated to do the work as a child support enforcement hearing officer. Other child support enforcement hearing officers who are considered "state employees" for purposes of working through the Court Administrator's Office are designated "OPS." As such, those employees are not eligible to participate in the FRS nor do they receive other benefits afforded to state employees.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement, issue a Final Order denying eligibility to these Petitioners. DONE AND ENTERED this 1st day of April 2004, in Tallahassee, Leon County, Florida. S J. D. 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 1st day of April, 2004. COPIES FURNISHED: Sarabeth Snuggs, Interim Director Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Alberto Dominguez, General Counsel Division of Retirement Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-1560 Thomas E. Wright, Esquire Department of Management Services Division of Retirement 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399-0950 George R. Mead, II, Esquire Moore, Hill & Westmoreland, P.A. SunTrust Tower, Ninth Floor 220 West Garden Street Pensacola, Florida 32501
The Issue Whether petitioner should take disciplinary action against respondent for the reasons (other than the alleged existence of a substantiated indicated abuse report) alleged in the amended administrative complaint?
Findings Of Fact Anderson's Child Care Center at 507 Texas Avenue in Crestview was one of the day care centers Mr. Brown of the Okaloosa County Health Department routinely inspected. Respondent testified without contradiction that she has operated a child care center at her Texas Avenue home since September of 1973, with the exception of the time petitioner closed her down. See Anderson v. Department of Health and Rehabilitative Services, 482 So. 2d 491 as clarified on reh. 485 So. 2d 849 (Fla. 1st DCA 1986). From this evidence it is inferred that she holds a license for a child care center. No evidence suggested otherwise. In the summer and fall of 1985, Lucy's husband Charles lived with her and worked at the child care center. J. S. On July 18, 1985, J.S., who was born January 5, 1982, spent his first day at the Anderson Child Care Center. J.S. was "right about the age [for] learning but c[ould]n't void on command." (T.48). He lacked "the voluntary control" (T.48) to "void on command," but he had learned to restrain himself before attending the Anderson Child Care Center. Although he was toilet trained before he began attending Anderson Child Care Center, he "started having lots of accidents and messing in his pants" (T. 73) after July 18, 1985. When left at the center, J.S. "got where he would throw a fit. He would not want to stay. And when . . . [Mrs. S.] would go pick him up, he would still be crying." (T. 77 ) September 11, 1985, was his thirteenth and final day at the Anderson Child Care Center. On September 12, 1985, A.S.'s mother took her to Eglin Regional Hospital in order to be examined, on account of the redness of her 23-month-old vaginal area. (T.74) J.S. accompanied his mother and sister. Leslie Price Kurtz, an Air Force Officer and pediatrician who saw A.S., diagnosed a rash on her nates as impetigo. In the course of inquiring about A.S., Dr. Kurtz was told by Mrs. S (who relayed information she had received from M.S., 8-year-old brother of J.S. and A.S.) that J.S. did not like to go to the bathroom at Anderson's Child Care Center, which all three S. children attended, because of immodest conditions there. The story Dr. Kurtz got was that the children were directed to use the bathroom at specific times and had no privacy when they did. (T.50) Based on this information, and on Mrs. S's report that J.S. had once been potty trained but had recently regressed, Dr. Kurtz suggested to Mrs. S. that she remove her children from Anderson's Child Care Center. Dr. Kurtz contacted the Department of Health and Rehabilitative Services which, as far as she knew, took no action at that time. In Dr. Kurtz's opinion, "a disturbance . . . had occurred with [J.S.] . . . secondary to the child's behavior as described . . . by the mother." (T.50) J. N. On September 25, 1985, Dr. Kurtz saw J.N. who was brought to her with complaints of an ear infection. There was no mention of any problem with his hands but Dr. Kurtz noticed that J.N., who was 20 months old at the time, had red and macerated fingers. J.N., who was born January 4, 1984, began at the Anderson Child Care Center on July 15, 1985, and attended regularly through September 27, 1985, although he missed a total of nine days, for sickness and other reasons. His parents drove him to the Center on their way to work, dropping him off about seven in the morning, and returned to pick him up about quarter past four in the afternoon. The first day he was there, three or four fingers were swollen a little when his parents picked him up. But in general things seemed to go well, at first. There were no more swollen fingers for two to four weeks and his parents saw him try to sing along with songs and do exercises at home they assumed he had learned at Anderson Child Care Center. There came a point when J.N. began to cry and cling to his mother when he was dropped off at respondent's. From then on, he cried nine times out of ten when he was left at the Anderson Child Care Center and he also frequently chewed on his fingers. One day when his father came for him, J.N. was sitting on the ground looking as if he had been crying. He refused to get up even though his father called him twice. Only after Charles Anderson told J.N. to go to his father did the child go to him. His parents never noticed J.N. chew his fingers before he began at the Anderson Child Care Center and this behavior has all but disappeared since he began attending another child care center. Only during the time he attended Anderson's did his fingers become red, swollen and infected. "[I]t was almost like he had bit right through his fingernails he had been chewing on them so much." Deposition of J.N., p.ll. They have healed completely since he left Anderson's Child Care Center. J.N. was not toilet trained when he started at Anderson's Child Care Center. He was still in diapers. After he had been at the Center two weeks, Mrs. Anderson told his mother that he seemed to have "a bowel movement after naptime when he would be outside playing,"(T.115) and suggested that he "be put on the potty at that time of the day." (T.115) Mrs. N. did not object to this proposal. Thereafter J.N. was placed on the toilet "after naptime" and regularly defecated, without crying or complaining. Child care center personnel did not punish him for accidents. Only after J.N. began at Anderson's Child Care Center, however, did his parents notice J.N. at home "go behind the furniture to go potty. It seemed like he was afraid . . ." (Deposition of J.N., P. 11) J.N. also seems to fear toilets. Id., P. 2. After J.N.'s parents related his circumstances to Dr. Kurtz, Dr. Kurtz concluded that the changes in his behavior were "most likely . . . [attributable to] conditions at Anderson Day Care Center," (T. 52) and contacted HRS. She also advised J.N.'s parents to remove him from Anderson Child Care Center immediately. J.N.'s parents sent him to Anderson Child Care Center the next day nevertheless. [T]hen we talked some more; we decided we would take him out because in -- when you're in the air force, you have your family. But in matter of speaking, the air force can run that family for you -- because if we wouldn't have taken him out of there and the doctor would have found out about it, she could have forced us to take him out of there. Deposition of J.N., P. 19. Respondent learned of dissatisfaction with the care J.N. received at the Center only after the present proceedings began. Toileting Generally In response to petitioner's interrogatories, Mrs. Anderson described toileting procedures at the Anderson Child Care Center. Petitioner offered her description in evidence: Under two years of age, after the parents agree the time for pottie training is to start, The children are exposed to the pottie usually during diaper change time. After pottie training depending on liquid ingestion, weather, child, time of day, and other variables, the children are given an opportunity periodically to use the pottie. If the children are inside they are given the opportunity every hour. If the children are outside they are given an opportunity every 1-1/2 to 2 hours. If the children need to go in the interim they are allowed to do so. If the children are going on a field trip or leave the center they are encouraged to use the bathroom before leaving. The children are also encouraged to use the bathroom right after lunch. The same procedure is employed for the children 2 through 5 and older as is the case with the children under 2 years of age after those children under 2 are pottie trained as above outlined. Usually the children are selected randomly while listening to a story for the purpose of an opportunity to use the bathroom. Petitioner's Exhibit No. 2. Mrs. Anderson's testimony at hearing was consistent with this account, as regards events after July 1, 1985. Staffing On October 9, 1985, Lucy Anderson was at Anderson's Child Care Center all day. At eight that morning Debbie Underwood and Pat Todd arrived and began work. At noon Charles Anderson came home. Thirty minutes later Debbie Underwood left the premises for lunch and at one o'clock Pat Todd left for the day. At 1:30 p.m., Debbie Underwood returned from lunch and Ann Parker reported for work. At half past two, Mr. Anderson left, but Kelley Anderson came home ten minutes later. Both Mrs. Parker and Mrs. Todd left for the day at five, but Kelley helped her mother till six. Between two and three o'clock on the afternoon of October 9, 1985, Arthur Alvin Brown, an inspector with the Okaloosa County Health Department, called at Anderson's Child, Care Center. Mrs. Anderson and three other women supervised the children while Mr. Brown was there. He stayed "probably somewhere in the neighborhood of fifteen, twenty, thirty minutes." (T.89) He counted four children inside sleeping on mats, and approximately 65 outside playing. Because he "knew the licensed capacity was fifty-five [he counted] a number of times." (T.89) Children were coming and going while he was there and he tried to take that into account. No more than five children left during his stay, however. Of the children who respondent's own records reflect were at the Center from two or earlier till three or later on the afternoon of October 9, 1985, four were ten years old, three were nine years old, eight were eight years old, two were seven years old, five were six years old, five were five years old, six were four years old, three were three years old, four were two years old and Matthew Newell was the only one-year-old. Petitioner's Exhibit No. 2. According to respondent's records, 29 other children were at the Center for some part of the time between two and three o'clock that afternoon. The age of one of the children in this group is not clear from the record. Of the others, two were two years old, only Candace Cox was three years old, two were five years old, four were six years old, eight were seven years old, three were eight years old, four were nine years old, three were ten years old and Kevin Barrow was the only eleven- year old. Petitioner's Exhibit No. 2.
