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 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 Richard L. Wahl submitted an application for an instructional position in the Pinellas County school system on December 5, 1973 (Exhibit 10), and was subsequently hired in 1974 to teach middle grade science. In Section IX of his application (Exhibit 10) Question 8 asking if he had ever been convicted of a misdemeanor, felony, or offense involving moral turpitude was left blank. By application dated January 3, 1984 (Exhibit 1), for certification by the State Department of Education as a general science teacher, in Section V inquiring if the applicant had ever been arrested or involved in a criminal offense, Wahl checked the "yes," gave the date and place of arrest for the offense of larceny-misdemeanor, and showed the disposition as "convicted conviction set aside" with notation "(see enclosures)." No enclosures were attached to Exhibit 1. By order of the U.S. District Court for the Southern District of Indiana dated October 25, 1973 (Exhibit 3), Wahl's conviction entered December 15, 1972, was set aside and he was unconditionally discharged from probation. The conviction was for larceny of coins from coin changing machines at a bank where Wahl worked as supervisor, night maintenance (Exhibit 9). Wahl started teaching in Pinellas County schools in 1974 and continued until he was suspended in 1984. During this period he had no evaluation less than satisfactory. He was liked and respected by his peers who considered him to be a very good science teacher. Respondent and his first wife, Shirley Jones, were divorced in 1975 and have one daughter. Respondent, shortly after his divorce from Shirley, married his present wife who had a nine or ten year old daughter by a previous marriage. The daughter, Lisa Beck, lived with her mother. In 1978 Respondent began "tucking in" Lisa when she went to bed. On occasion he rubbed her back. This led to rubbing her buttocks and subsequently her vaginal area. On occasion Respondent placed his genitals in contact with Lisa's genitals, but no intercourse was attempted or contemplated by Respondent. This went on for several weeks on an irregular basis in late 1978. At this time Lisa was 10 or 11 years old. Respondent initially thought Lisa enjoyed the incidents or at least did not object until Lisa finally told him she wished he wouldn't do that. From that time forward no further abuse by Respondent of Lisa occurred. Some five years later Lisa told her mother that Respondent had fondled her, the mother told the Bishop of her church, and the Bishop accosted Respondent with the charge. Respondent readily admitted the incident to the Bishop and he and his wife were referred to a Family Services program run by the Department of Health and Rehabilitative Services with this problem as well as with other marital problems they were having. Respondent, his wife, and Lisa voluntarily participated in family counseling to improve the family relationship. After family counseling had begun Respondent was contacted by a detective in the St. Petersburg Police Department to ask him about his earlier fondling of Lisa. Again, Respondent readily admitted his transgressions. Word that a teacher was being investigated filtered back to the school system and the investigation leading to the charges here involved began. Two short articles appeared in the inside pages of the St. Petersburg Times on January 30, 1984, and July 20, 1984, reporting the allegations of child molestation made against Wahl and of his suspension without pay from his position as a teacher. Respondent was subsequently brought to trial on a charge of handling and fondling a child under the age of 14, to which he pleaded nolo contendere, adjudication of guilt was withheld and Respondent was placed on five years probation (Exhibit 7). Subsequent to his divorce from Shirley Jones, which was an acrimonious one, Respondent has been sued by Jones when late on child support payments and has had difficulty in visitation rights with his daughter by that marriage. Jones, who apparently has also remarried, has attempted to induce Respondent to allow his daughter to be adopted which, so far, Respondent has refused. Following publication of the allegations involving Respondent's stepdaughter, Shirley Jones advised Petitioner that Wahl had in 1972 molested Jones' then 14 year old sister and that he had been convicted of larceny in Indiana in 1972. Shirley Jones' sister, Leslie Miskove, now 26 years old and married, testified that while she was visiting her sister, then married to Respondent, Wahl, on two occasions, touched her genital area. According to Miskove the first incident occurred while she and Wahl were lying on a couch watching television and Wahl touched her vaginal area with his hand. At this time her sister was in the bedroom. Miskove did not say anything to Wahl nor did she tell her sister. The second incident occurred while enroute to Florida. While Shirley and her baby were asleep on the back seat, Wahl was driving, and Miskove was lying on the front seat with her head on Wahl's leg. According to Miskove, Wahl put his hand inside her pants and inserted a finger in her vagina. Again she did not say anything and his hand remained inside her pants until she sat up a short time later. After Shirley Jones told Miskove about the child molestation charge against Wahl, which was filed in 1984, Miskove first revealed the 1972 incidents to her sister. Respondent denies either of those incidents occurred. No evidence was presented of any improper conduct involving Respondent with any of his students; and his principal did not consider Respondent a threat to any of the girls at his school even after he became aware of the charges against Respondent then being investigated. Exhibit 11, the deposition of Dr. Machler, was admitted as a late- filed exhibit. Several days after the transcript arrived but Exhibit 11 had not, a telephone call to the attorney revealed that he thought the original had been sent but that a second copy would be forwarded. Accordingly, all of the above findings were made without the benefit of the expert testimony contained in Exhibit 11. Dr. Machler's opinion of Respondent, based upon his psychiatric evaluation and counseling involving eight sessions for a total of five or six hours, is that Respondent is not now, and never has been, a pedophile; that Respondent is an honest, sincere individual who truly enjoys and strives to excel at, his role as a teacher; that Respondent is a passive aggressive person who has been intimidated by his two wives; that his current wife's rejection coupled with the proximity of Lisa as an extension of his wife, led to the fondling of Lisa; that this was an isolated situation and is unlikely to ever recur; that Respondent has never been a threat to female pupils in his classes and is not likely ever to be such a threat; and that the embarrassment and indignities brought on by these charges will make Respondent more circumspect than ever in the classroom because now he will feel like he is living in a fishbowl. Dr. Machler's deposition further confirms the Hearing Officer's conclusion that someone in the HRS Department of Family Services reported to the police the transgressions involving Respondent and Lisa when the family went to them for counseling after Lisa had disclosed the incidents to her mother and Respondent admitted they occurred. The conclusions of law were also prepared before Exhibit 11 was read by this Hearing Officer.
The Issue The issue is whether Petitioner should be granted an exemption from disqualification to work in a position of trust or responsibility in a direct care position pursuant to Section 435.07(3), Florida Statutes.
Findings Of Fact Petitioner is a single mother of five children, including two sets of twins. She is twenty-nine years old and has a tenth-grade high school education. On July 26, 1995, Petitioner drove a car into a Walmart parking lot in Leon County, Florida, and parked illegally directly in front of the store. Petitioner was operating the car while her driving privileges were suspended. After parking the car, Petitioner left her five children unsupervised in the car while she went into Walmart to exchange a shirt. At that time, the older twins were six years old, one child was four years old, and the younger twins were three years old. When Petitioner went into the store, she removed the key from the ignition and left the windows down. The temperature was 93 degrees. Petitioner was in the store for approximately ten minutes. Upon Petitioner's return to the car, a policeman arrested her for the second-degree misdemeanor offense of "negligent treatment of children" under Section 827.05, Florida Statutes (1993). 1/ The children were not harmed as a result of being left unattended in the car. They were never removed from Petitioner's custody. After her arrest, Petitioner and her children were picked up and taken home by a relative. In September 1995, Petitioner pled nolo contendere to the charge of "negligent treatment of children." The County Judge of Leon County accepted Petitioner's plea, withheld adjudication of guilt, and ordered that Petitioner be placed on probation for six months. One of the conditions of Petitioner's probation was that she attend parenting class. On February 28, 1996, Petitioner was charged with violating her probation related to the charge of "negligent treatment of children." Specifically, she had not provided proof that she had attended the parenting class. Additionally, she had not paid a $100 probation supervision fee or a $150 court fine. Petitioner violated her probation because she did not have funds to pay for the parenting class or the required fee and fine. At the violation of probation hearing on May 10, 1996, Petitioner presented proof that she had attended the parenting class. The County Judge of Leon County terminated Petitioner's probation in open court. On March 5, 1998, Petitioner was charged in Leon County, Florida, with the traffic offense of driving with suspended driving privileges. The County Judge of Leon County convicted and adjudicated Petitioner guilty of this offense on March 25, 1998. On September 7, 1998, Petitioner was charged in Leon County, Florida, with the traffic offense of driving with suspended driving privileges. The County Judge of Leon County withheld adjudication of guilt for this offense on October 7, 1998. Petitioner has worked as a dietary aide at Tallahassee Convalescent Home (TCH) for four years. In 1998, she applied for a position with TCH as a certified nurse assistant, a direct care position. The application included Petitioner's request for a Florida Abuse Hotline Information System Background Check. A member of Respondent's staff completed the background check on September 23, 1998, finding no confirmed report of abuse or neglect. On April 16, 1999, Petitioner signed a sworn Affidavit of Good Moral Character as part of the application process to secure a direct care position with Tallahassee Developmental Center. By signing the affidavit, Petitioner swore that she had not been found guilty or entered a plea of guilty or nolo contendere, regardless of the adjudication, to a number of offenses, including "negligent treatment of children." This affirmation was false. Petitioner's testimony that she forgot her plea of nolo contendere and subsequent conviction for "negligent treatment of children" or that she never knew the exact nature of her crime is not persuasive. In April 1999, Petitioner was charged with violating her probation related to one of her offenses for "driving while privileges suspended" in Leon County, Florida. Petitioner violated her probation because she did not have funds to pay her traffic fines. Petitioner subsequently entered the Florida Traffic Assistance Program. She completed a corrective driving class on August 14, 1999. The Department of Motor Vehicles issued Petitioner her first driver's license on August 31, 1999. Since October 1999, Petitioner has paid $50 per month on her outstanding traffic fines. She now owes $453 in traffic fines.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is
