06-000537 Helena Mcintyre vs. Department Of Children And Family Services Status: Closed Recommended Order on Friday, February 9, 2007.

Summary: Petitioner, who allowed a convicted sex offender to frequently visit the licensed home and whose conduct posed a threat, is a valid basis for disallowing the adoption of a child and the renewal of her license.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HELENA MCINTYRE, )

)

Petitioner, )

)

vs. ) Case Nos. 06-0347

) 06-0537

DEPARTMENT OF CHILDREN )

AND FAMILY SERVICES, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice a formal hearing was held on September 7,

2006, by video teleconference with the parties appearing from

Miami, Florida, before J. D. Parrish, a designated Administrative

Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Greer Davis Wallace, Esquire

Law Office of Greer Davis Wallace

1450 North Krome Avenue, Suite 101G

Florida City, Florida 33034-2400

For Respondent: Rosemarie Rinaldi, Esquire

Department of Children and Family Services

401 Northwest Second Avenue, N-1014

Miami, Florida 33128

STATEMENT OF THE ISSUES

The issue in DOAH Case No. 06-0347 is whether the

Petitioner, Helena McIntyre (Petitioner) is entitled to the

renewal of her foster care license.

The issue in DOAH Case No. 06-0537 is whether the Petitioner

is entitled to adopt a child placed in her home previously under

a foster parent license that has since been denied for renewal

(DOAH Case No. 06-0347).

PRELIMINARY STATEMENT

These cases were consolidated for hearing by Order entered

February 28, 2006. On or about November 3, 2005, the Department

of Children and Families (Respondent or Department) issued a

Notice of Intent to Deny Adoption Application. The Petitioner’s

request to adopt was denied based upon the same factual

information that had been asserted in a foster home non-renewal;

that is: that the Petitioner had allowed a sexual offender with

a history of sexual battery on a child under twelve years of age,

to either reside in her home or to frequent the foster home. As

to the foster home license (DOAH Case No. 06-0347), the

Department had issued a Notice of Intent to Deny Foster Home

License Renewal on or about May 20, 2005. As to both matters,

the Respondent maintains that the Petitioner provided an

inappropriate environment for any foster child placed in her

care. Moreover, the Respondent averred that by having the sexual

offender around the home the Petitioner showed a lack of concern

for, and disregarded the welfare of, the children by putting them

at risk.

The Petitioner timely challenged the Respondent’s decisions

and sought administrative hearings. DOAH Case No. 06-0347 was

referred to the Division of Administrative Hearings on

January 26, 2006. DOAH Case No. 06-0537 was referred on

February 10, 2006. The hearing in the matter was originally

scheduled for April 3, 2006, but was continued at the parties’

requests on three occasions. The matter was ultimately heard on

September 7, 2006.

The Respondent presented testimony from Duray Smith, Ada

Gonzalez, Ronnita Waters, Katrella Smalls, and Sylvia Diez. The

Petitioner also testified. The Respondent’s Exhibits 1-6 were

admitted into evidence. A transcript of the proceedings was

filed on December 26, 2006. Thereafter, the parties requested

and were granted leave until January 19, 2007, to file proposed

recommended orders.

The Respondent’s Proposed Recommended Order was filed

January 19, 2007. The Petitioner did not file a proposal. The

findings of fact and conclusions of law that follow apply to all

matters at issue in these consolidated cases.

FINDINGS OF FACT

1. The Petitioner has been a licensed foster care parent

since 1993. Prior to the instant denial, the Petitioner’s

license has been renewed on every occasion.

2. P., a minor, was placed in the Petitioner’s home in

2000. Also in the Petitioner’s home at that time were minor twin

brothers, M. and M.

3. In the fall of 2003, the Petitioner became friends with

Jimmie Lee Hodgest, a convicted sex offender. Mr. Hodgest pled

guilty to three counts of sexual battery on a seven-year old

girl. After serving his prison sentence, Mr. Hodgest was

released and placed on parole.

4. At all times material to the allegations in these cases,

Mr. Hodgest was required to report to his probation officer,

Sylvia Diez.

5. According to Ms. Diez, when she became aware of the

friendship between Mr. Hodgest and the Petitioner, she asked to

meet the Petitioner so that she could explain the offender’s

criminal history. Basically, Ms. Diez wanted the Petitioner to

understand that she would be checking on Mr. Hodgest to assure he

was complying with the terms of his parole. Also, Ms. Diez

wanted to verify that Mr. Hodgest would not be left unsupervised

with children.

6. To that end Ms. Diez went to the Petitioner’s home to

warn the Petitioner about Mr. Hodgest. Ms. Diez saw Mr. Hodgest

at the Petitioner’s home on four or five occasions.

7. Most troubling to Ms. Diez, however, was an incident in

June of 2004, when she dropped by the Petitioner’s home at

8:21 p.m. and found him alone there.

8. Additionally, on September 29, 2004, at 9:47 p.m.,

Ms. Diez went to the Petitioner’s home and found her in either a

nightgown or housecoat with Mr. Hodgest upstairs in the bedroom

area of the home. Mr. Hodgest came downstairs to speak with

Ms. Diez. At that time no one represented that the Petitioner

and Mr. Hodgest were painting the upstairs.

9. In 2004, Duray Smith conducted an investigation

regarding an allegation that the Petitioner allowed a convicted

sex offender in her home. Mr. Smith is a Child Protective

Investigator employed by the Department.

10. When Mr. Smith interviewed the Petitioner regarding

Mr. Hodgest, she admitted knowing the offender but stated that he

was merely her yard man. Further, since from the neighbors, the

children, and everyone he interviewed, Mr. Smith was unable to

verify that the offender was in the home, the allegation was

closed with no indicators.

11. Then, in 2005, Mr. Smith received a second allegation

of similar conduct. The claim alleged that Mr. Hodgest was

frequenting the home such that the children might be at risk.

12. When the 2005 investigation ensued, Mr. Smith

interviewed a neighbor who represented that a male did frequent

the Petitioner’s home. Mr. Smith was later able to ascertain

that the male was Mr. Hodgest. In fact, a child in the home

advised Mr. Smith that Mr. Hodgest “naps” at the house. It

cannot be determined if Mr. Hodgest did, in fact, take naps at

the home.

13. When Mr. Smith confronted the Petitioner with the

allegation, she stated that the offender was never at the home

unsupervised. The Petitioner admitted that the offender cooked

at the home but maintained that she was also in the home at the

time (albeit in a different room).

14. From the admissions of the Petitioner (that the

offender was inside the home), the comments of others, and his

verification that the offender had been frequenting the home for

approximately two weeks, Mr. Smith filed a petition to take

action to protect the children in the Petitioner’s home.

15. That action removed the foster children from the

Petitioner’s home.

16. Mr. Smith believed that all of the children in the

Petitioner’s home were at risk of being harmed.

17. There was never an allegation of, or evidence of, any

actual physical abuse to the children in the Petitioner’s home.

All of the concerns raised by the Department were related to a

risk of harm based upon the offender’s past criminal conduct.

18. Mr. Smith’s sole responsibility in this regard was to

investigate an allegation and to report on it. Mr. Smith did not

investigate the terms of Mr. Hodgest’s probation. Similarly,

Mr. Smith did not investigate whether or not the Petitioner’s

foster home license should be renewed.

19. Ada Gonzalez, however, was responsible for reviewing

the foster home license. When Ms. Gonzalez learned of a second

allegation regarding the Petitioner’s home had been confirmed, a

staffing was scheduled to consider the status of the Petitioner’s

foster home license.

20. According to Ms. Gonzalez, the Petitioner had an

affirmative duty to notify the Department of persons within the

licensed home who may affect the foster child’s welfare.

Ms. Gonzalez was concerned that the Petitioner had been less than

candid in disclosing her relationship with the offender and his

presence in the Petitioner’s home.

21. The Bilateral Service Agreement between the Department

and the Petitioner provided foster parent responsibilities owed

to the Department. Those responsibilities included:

d. To notify the department immediately of a

potential change in address, living

arrangements, martial status, family

composition (who is in the home), employment,

significant health changes or any other

condition that may affect the child’s well

being.

e. To notify the department promptly of all

contacts the family or any member of the home

has with the police or any law enforcement

agencies.

22. The Bilateral Service Agreement also provided that:

Non-compliance with any of the above

provisions may result in administrative

action by the department which could include

corrective action, suspension, revocation or

denial of further licensure pursuant to

Chapter 120, Florida Statutes.

23. The Petitioner did not notify the Department that

someone who frequented her home was required to be monitored by

law enforcement. The Petitioner also did not notify the

Department that she had been contacted by Mr. Hodgest’s probation

officer. Ms. Gonzalez believed that the Petitioner had an

affirmative duty to disclose the probation status of Mr. Hodgest

since he was frequently at the home.

24. Following the action initiated by Mr. Smith, the minor

children in the Petitioner’s home were removed and a juvenile

court judge adjudicated them dependent. The minor child, P., who

is the subject of the instant adoption request was placed in

another foster home.

25. The Petitioner has denied that the offender was her

boyfriend and that he was left unsupervised in the home with the

children. The Petitioner acknowledged that she did not notify

anyone that Mr. Hodgest was frequently at the home.

26. The weight of the credible evidence dictates a finding

that the Petitioner and Mr. Hodgest were not merely in an

employer/employee relationship. The Petitioner’s representation

that Mr. Hodgest was “the yard man” is not credible. Moreover,

the Petitioner knew or should have known that an individual with

Mr. Hodgest’s criminal record would be a concern to the

Department. As early as 2004, the Petitioner was put on notice

that an allegation of concern had been raised.

27. The Petitioner did not remove Mr. Hodgest from access

to her home (in fact his visits became more frequent over time),

did not acknowledge that Mr. Hodgest could pose a threat to the

children in her care, and did not seek counsel from the foster

care authorities regarding the offender’s connection to the

licensed home.

CONCLUSIONS OF LAW

28. The Division of Administrative Hearings has

jurisdiction over the parties to, and the subject matter of,

these proceedings. § 120.57(1), Fla. Stat. (2006). See also

§ 409.175, Fla. Stat. (2005).

29. As the applicant, the Petitioner bears the burden of

proof with regard to her application for adoption. See Florida

Department of Transportation v. J.W.C. Company, Inc. , 396 So. 2d

778 (Fla. 1st DCA 1981). Nevertheless, since the Department

bears the burden of proof as to the denial of the renewal of the

foster care license, the evidence has been reviewed in that

context. It is, therefore, concluded that if the foster care

license should not be renewed, the Petitioner cannot establish

she is entitled to the approval of the adoption sought. This

conclusion is reached as the only factual basis for the denial of

the foster care renewal is identical to the factual basis for the

denial of the Petitioner’s request to adopt.

30. Section 409.175(9), Florida Statutes (2005), sets forth

the following provisions regarding foster home licenses:

(9)(a) The department may deny, suspend, or

revoke a license.

(b) Any of the following actions by a home

or agency or its personnel is a ground for

denial, suspension, or revocation of a

license:

1. An intentional or negligent act

materially affecting the health or safety of

children in the home or agency.

2. A violation of the provisions of this

section or of licensing rules promulgated

pursuant to this section.

3. Noncompliance with the requirements for

good moral character as specified in

paragraph (5)(a).

4. Failure to dismiss personnel found in

noncompliance with requirements for good

moral character.

31. Additionally, Florida Administrative Code Rule 65C-

13.010, provides, in pertinent part:

(4) Responsibilities of the Substitute Care

Parents to the Department.

(a) The substitute care parents are required

to participate in 30 hours of GPS-MAPP

training and at least eight hours of

in-service training annually which is

provided or approved by the department in

order to develop and enhance their skills.

(b) The substitute care parents are required

to participate with the department in

relicensing studies and in ongoing monitoring

of their home, and must provide sufficient

information for the department to verify

compliance with all rules and regulations.

* * *

(e) The substitute care parents must sign an

agreement to provide foster care for

dependent children for each child placed in

their home.

* * *

(g) The substitute care parents must notify

the department regarding changes which affect

the life and circumstances of the

shelter or foster family.

32. Section 409.175(6), Florida Statutes (2005), also

states in part:

(c) A licensed family foster home, child-

placing agency, or residential child-caring

agency which applies for renewal of its

license shall submit to the department a list

of personnel who have worked on a continuous

basis at the applicant family foster home or

agency since submitting fingerprints to the

department, identifying those for whom a

written assurance of compliance was provided

by the department and identifying those

personnel who have recently begun working at

the family foster home or agency and are

awaiting the results of the required

fingerprint check, along with the date of the

submission of those fingerprints for

processing. The department shall by rule

determine the frequency of requests to the

Department of Law Enforcement to run state

criminal records checks for such personnel

except for those personnel awaiting the

results of initial fingerprint checks for

employment at the applicant family foster

home or agency.

(d)1. The department may pursue other

remedies provided in this section in addition

to denial or revocation of a license for

failure to comply with the screening

requirements. The disciplinary actions

determination to be made by the department

and the procedure for hearing for applicants

and licensees shall be in accordance with

chapter 120.

2. When the department has reasonable cause

to believe that grounds for denial or

termination of employment exist, it shall

notify, in writing, the applicant, licensee,

or summer or recreation camp, and the

personnel affected, stating the specific

record which indicates noncompliance with the

screening requirements.

3. Procedures established for hearing under

chapter 120 shall be available to the

applicant, licensee, summer day camp, or

summer 24-hour camp, and affected personnel,

in order to present evidence relating either

to the accuracy of the basis for exclusion or

to the denial of an exemption from

disqualification.

4. Refusal on the part of an applicant to

dismiss personnel who have been found not to

be in compliance with the requirements for

good moral character of personnel shall

result in automatic denial or revocation of

license in addition to any other remedies

provided in this section which may be pursued

by the department.

33. In these cases, the Petitioner failed to notify the

Department that Mr. Hodgest was frequently on the licensed

premises. Whether Mr. Hodgest was present as a friend or

employee, his physical occupation of the licensed premises is a

valid concern. Mr. Hodgest is a convicted sex offender. If he

was merely an employee (doing chores such as mowing the lawn,

painting, or cooking food), his employment should have been

disclosed to the Department. If he was, in fact, a friend to the

Petitioner his frequent presence at the licensed home should have

been disclosed to the Department. Either way the Petitioner

failed to abide by the terms of her agreement with the

Department.

34. More critical, however, is the fact that the Petitioner

failed to appreciate the risk of harm that Mr. Hodgest posed to

the foster family. Mr. Hodgest was on probation for a very

serious offense. That the Petitioner could fail to remove

Mr. Hodgest from access to her home indicates that she does not

fully comprehend her responsibilities to the Department and to

the foster children placed in her care. Best case suggests that

this Petitioner used poor judgment. A less charitable review

would suggest the Petitioner hoped to achieve the adoption of the

child before the Department realized that the convicted offender

would be in proximity to the family. Although the latter

conclusion is not reached, the severity of the Petitioner’s lapse

of judgment does pose valid concern. It is concluded that this

Petitioner exercised very poor judgment in allowing the offender

to come to her home.

35. In Florida adoption is a statutory privilege that is

granted only if the adoption is in the best interest of the child

to be adopted. See Fla. Admin. Code R. 65C-16.002. Among the

criteria to be considered when evaluating a prospective adoptive

parent is the history of the foster home. Instances of

indicators for neglect, violations of licensing standards, or

questions concerning the applicant’s “good moral character,” may

jeopardize approval. See Rule 65C-16.005, F.A.C.

36. In these cases the Department has presented credible

reasons for the denial of the Petitioner’s application for

adoption. The Petitioner’s failure to comply with the foster

home agreement, her failure to recognize the danger posed by the

offender’s presence at her home, and her continuing denial of the

severity of the conduct in this matter, are sufficient to deny

the application. A juvenile court sustained the removal of

children from the Petitioner’s home. Mr. Hodgest was not an

acceptable candidate for either employment at the home or a

suitor. The Petitioner’s failure to comprehend that simple fact

supports the Department’s actions in these cases.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Department of Children and Family

Services enter Final Orders that deny the renewal of the

Petitioner’s foster home license and deny the Petitioner’s

adoption application.

DONE AND ENTERED this 9th day of February, 2007, 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

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 9th day of February, 2007.

COPIES FURNISHED:

Gregory Venz, Agency Clerk

Department of Children and Family Services

Building 2, Room 204B

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

John Copelan, General Counsel

Department of Children and Family Services

Building 8, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Robert Butterworth, Secretary

Department of Children and Family Services

Building 1, Room 202

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Greer Davis Wallace, Esquire

Law Office of Greer Davis Wallace

1450 North Krome Avenue, Suite 101G

Florida City, Florida 33034-2400

Rosemarie Rinaldi, Esquire

Department of Children and Family Services

401 Northwest Second Avenue, Suite N-1014

Miami, Florida 33128

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

days from the date of this Recommended Order. Any exceptions to

this Recommended Order should be filed with the agency that will

issue the Final Order in this case.