07-005778 Department Of Children And Family Services vs. Mercedes Gonzalez Status: Closed Recommended Order on Friday, April 4, 2008.

Summary: Petitioner properly revoked foster care license, where Respondent concealed the presence of a convicted felon residing in the foster home.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Petitioner, )

)

vs. ) Case No. 07-5778

)

MERCEDES GONZALEZ, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted in this

case on February 7, 2008, in Orlando, Florida, before

Lawrence P. Stevenson, a duly-designated Administrative Law

Judge of the Division of Administrative Hearings ("DOAH").

APPEARANCES

For Petitioner: T. Shane DeBoard, Esquire

Department of Children and

Family Services

400 West Robinson Street, Suite S-1114

Orlando, Florida 32801

For Respondent: Jerry Pitzer, Qualified Representative

5338 North Woodcrest Drive

Winter Park, Florida 32792

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent's foster care

license should be revoked for violating Florida Administrative

Code Rules 65C-13.009 and 65C-13.010. 1

PRELIMINARY STATEMENT

Respondent was notified by letter dated November 13, 2007,

and sent by certified mail on November 14, 2007, that the

Department of Children and Family Services (the "Department")

intended to revoke her license to operate a family foster home.

By letter dated November 29, 2007, Respondent notified the

Department of her intent to contest the revocation and requested

a formal administrative hearing. On December 26, 2007, the case

was forwarded to DOAH for the assignment of an administrative

law judge and the conduct of a formal administrative hearing.

The Department's letter stated the following reasons for

the revocation of Respondent's foster care license:

1) Failure to disclose all household

members. It has come to the attention of the

Department of Children and Families and

Children's Home Society that you have an un-

screened household member living in your

home, providing supervision for the foster

children that have been entrusted in your

care. It is the foster parent's

responsibility to inform the Child Placing

Agency, Children's Home Society, of any

changes in the household composition. This

is a violation of your Bilateral Agreement

(section entitled Foster Parent

Responsibilities to Children's Home Society,

subsection d and e) which you signed on

July 11, 2007. This is also a violation of

F.A.C. 65C-13.010(4)(g).

2) Failure to properly screen household

members. Household members and substitute

care parents are required to be background

screened to ensure safety and stability of

the children to be placed in their home.

Your paramour, the household member in

question, has not been properly background

screened as mandated in F.A.C. 65C-

13.009(6)(b), (c) and (d).

3) The household member residing in your

home appears to be a convicted felon. He was

sentenced in a case involving the

use/possession and/or sale/delivery of heroin

in 2004. He is currently on probation and

has given your address as his address of

record with his probation office.

At the hearing, the Department presented the testimony of

Robert Ellis, a probation officer for the Department of

Corrections; John Hubbard, a Department attorney who prosecutes

child abuse and negligence cases; Arlene Clark, a case manager

for the Children's Home Society; and Sarah Yaccarino, a

licensing specialist for the Department. The Department's

Exhibits 1 through 9 were admitted into evidence. Respondent

presented the testimony of Marie Nistri, a program administrator

for the Department; Miguel Diaz, a former supervisor in the

Department's Brevard County licensing unit; and Laurie Light,

guardian ad litem for the foster child M.G. Respondent offered

no exhibits.

The Transcript of the hearing was filed at DOAH on

February 25, 2008. The Department filed its proposed

recommended order on February 27, 2008. Respondent filed her

proposed recommended order on March 4, 2008. Both proposed

recommended orders have been carefully considered during the

preparation of this Recommended Order.

FINDINGS OF FACT

1. The Department is the state agency responsible for

licensing and monitoring foster care parents. One of its duties

is to monitor foster homes and supervise the background

screenings of household members when necessary.

2. Respondent has operated a family foster home for

several years. Her most recent family foster home license was

issued on or about September 18, 2007.

3. M.G., born on June 13, 2003, was a foster child in

Respondent's home for at least six months prior to an Order

Changing Placement, dated January 30, 2008, issued by Circuit

Court Judge John Griesbaum of the Eighteenth Judicial Circuit in

and for Brevard County, that removed the child from Respondent's

home and placed her in the temporary custody of the Department

pending placement in a new foster home.

4. Judge Griesbaum's eight-page order concluded that

Respondent had intentionally withheld information from the

Department and the Children's Home Society regarding Jose Diego

Fernandez, who lived at Respondent's home from April 2007

through October 2007.

5. On September 13, 2004, Mr. Fernandez entered a plea of

guilty to the possession and sale of heroin, in violation of

Sections 893.03 and 893.13, Florida Statutes (2004). 2 Possession

of a controlled substance is a third degree felony. The sale of

heroin is a second degree felony. The court withheld

adjudication and placed Mr. Fernandez on probation for a period

of five years.

6. In 2006, Mr. Fernandez was arrested for possession of

heroin with intent to sell and the possession of drug

paraphernalia, in violation of his probation terms.

Mr. Fernandez entered a plea of guilty to the charges on

January 3, 2008. 3

7. Robert Ellis is a probation officer who took charge of

Mr. Fernandez' probation in August 2007. Mr. Ellis was familiar

with the records regarding Mr. Fernandez' probation dating from

2004. Mr. Ellis testified that on or about April 23, 2007,

Mr. Fernandez provided a change of address to the probation

office. The new address given by Mr. Fernandez was 1495 Malibu

Circle NE, Unit 111, Palm Bay, Florida. This is the address

from which Respondent operates her licensed family foster home.

8. Mr. Ellis testified that he had visited Mr. Fernandez

at Respondent's house on several occasions, though never inside

the house. Mr. Fernandez would meet Mr. Ellis in a screened

patio area in front of the house.

9. Mr. Ellis saw the inside of the house only once, when

he knocked to inquire whether Mr. Fernandez was at home.

Respondent answered the door and told Mr. Ellis that

Mr. Fernandez would be back later in the day. Respondent

affirmed to Mr. Ellis that Mr. Fernandez was still living there.

10. Mr. Ellis testified that Mr. Fernandez moved out of

Respondent's house and into a motel in October 2007.

11. Arlene Clark is a case manager for the Children's Home

Society who monitored Respondent's home from late 2005 until

November 2007. Respondent had introduced Mr. Fernandez to

Ms. Clark as a friend of the family, and Ms. Clark saw him

around the house on several occasions. On November 7, 2007,

Respondent admitted to Ms. Clark that she had lied when she said

that Mr. Fernandez was not living in Respondent's home.

Respondent told Ms. Clark that she was just trying to help a

friend, and that there was nothing wrong with her actions

because the children were not placed in any danger.

12. The Children's Home Society is a "child-placing

agency" as that term is defined in Subsection 409.175(2)(d),

Florida Statutes. On July 11, 2007, Respondent entered into a

"Bilateral Service Agreement" with the Children's Home Society,

for the following stated purpose:

The purpose of this Agreement is to identify

the expectations for both foster parents and

the Children's Home Society on behalf of the

children and families that are served in the

foster care program. This agreement

reflects standards of care that are current

requirements in Florida Administrative Code,

which are based on statutory authority found

in section 409.175, Florida Statutes. The

premise of this agreement is that the

Children's Home Society and foster parents

must work as partners to assure safety, to

provide for the physical and mental well

being and to obtain permanency for each

child.

13. Under the heading "Foster Parent Responsibilities to

Children's Home Society," the Bilateral Service Agreement

provides, inter alia , that the foster parent is required:

d. To notify Children's Home Society

immediately of a potential change in

address, living arrangements, marital

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 Children's Home Society

promptly of all contacts the family or any

member of the home has with police or any

law enforcement agencies.

14. Respondent did not notify the Children's Home Society

that Mr. Fernandez had moved into her home. In fact,

Ms. Clark's testimony established that Respondent affirmatively

concealed the fact that Mr. Fernandez was living in the foster

home. 4

CONCLUSIONS OF LAW

15. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding pursuant to Section 120.569 and Subsection 120.57(1),

Florida Statutes (2007).

16. The Department is the agency charged with the

responsibility of licensing foster family homes in the State of

Florida. Section 409.175, Florida Statutes (2007), reads in

pertinent part:

(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:

* * *

2. A violation of the provisions of this

section or of licensing rules promulgated

pursuant to this section.

17. Florida Administrative Code Rule 65C-13.009, as

written at the times pertinent to this proceeding, was titled

"Parent Preparation and Mutual Selection" and provided in

relevant part:

(6) Requirements for Department of Children

and Family Services Staff.

(a) The certified [Group Preparation and

Selection] leader, staff and parents, must:

* * *

5. Request a criminal records check for all

persons age 18 and older residing in the

prospective home, using the following

procedures:

a. Have each adult sign a release of

information and consent to law enforcement

and abuse registry record check.

b. Complete a one-time employment history

check. This check shall be over a two-year

period of time preceding the family's

application to provide care and excluding

periods of unemployment.

c. Complete request for criminal history

record check.

d. Submit request to the Florida Department

of Law Enforcement.

6. Request Abuse Registry clearance for all

persons age 18 and older residing in the

prospective home. The following procedures

should be used to procure an Abuse Registry

clearance:

a. Provide the following information on

each adult residing in the home: name,

race, sex, date of birth, social security

number, name of any previous spouse, and

names of all children.

b. Submit request for Abuse Registry

clearances to the district background

screening unit for processing.

* * *

(b) Screening. According to Section

409.175, F.S., screening means the act of

assessing the background of personnel and

includes, but is not limited to, employment

history check, check of references, local

criminal records check through local law

enforcement agencies, fingerprinting,

statewide criminal records check through the

Department of Law Enforcement, federal

criminal records through the Federal Bureau

of Investigation and abuse registry

clearance. The implementation of the

screening policies and procedures and the

determination of good moral character is the

responsibility of the district screening

coordinator. The district screening

coordinator works closely with the district

licensing counselor to ensure compliance

with the statute.

(c) Local Criminal Records Checks. The

local criminal records check is completed

yearly through the sheriff or police

department located in the community in which

the applicant resides. Unless the applicant

has lived in the current jurisdiction at

least six months, the screening is also

conducted for the applicant's previous

residence. The licensing program is

responsible for coordinating the local

criminal records clearance through the

district screening coordinator.

(d) State and Federal Checks. The state

criminal records checks are completed every

five years and the federal criminal records

check, fingerprints, are only done one time

at the initial licensing. General

information about this screening is as

follows:

1. Fingerprints are taken by official law

enforcement personnel, Department of

Children and Family Services personnel or

local licensing employees trained for the

purpose.

2. The cost for processing fingerprint

cards for families interested in providing

family foster care, family emergency shelter

care or family group care is assumed by the

department.

3. Fingerprint cards are submitted directly

to the department for handling.

4. The disposition of the state and federal

criminal records check is the responsibility

of the district screening coordinator. The

coordination procedures of the disposition

results may vary from district to district.

Licensing staff must work closely with their

screening coordinators to ensure the

disposition information is received in a

timely manner in order to take action on the

licensing application.

18. Florida Administrative Code Rule 65C-13.010, as

written at the time pertinent to this proceeding, was titled

"Substitute Care Parents' Role as a Team Member" and provided in

relevant part:

(4) Responsibilities of the Substitute Care

Parents to the Department.

* * *

(g) The substitute care parents must notify

the department regarding changes which

affect the life and circumstances of the

shelter or foster family.

19. The quoted rules plainly require background screening

of all adults residing in a prospective foster home, and further

require that foster parents notify the Department of changes in

the household that "affect the life and circumstances" of the

foster family. The presence in the household of a convicted

felon is certinaly a change that affected the circumstances of

the foster family. Respondent had an obligation, under the

rules, as well as the Bilateral Service Agreement quoted in

Findings of Fact 12 and 13 above, to notify the Department of

Mr. Fernandez' presence as a resident in her home, so that a

proper crimnial and abuse registry screening could be performed.

20. The Department seeks revocation of Respondent's foster

care license. As the party asserting the affirmative of an

issue before this administrative tribunal, the Department has

the burden of proof. Florida Department of Transportation v.

J.W.C. Company , 396 So. 2d 778 (Fla. 1st DCA 1981). However, in

accordance with the definition of "license" contained in

Subsection 409.175(2)(f), Florida Statutes, the licensure status

previously awarded to Respondent is not a professional license

and does not create a property right. Therefore, the Department

must establish facts which support its position by a

preponderance of the evidence rather than by a clear and

convincing standard normally imposed in professional licensure

cases. See Department of Banking and Finance, Division of

Securities and Investor Protection v. Osborne Stern and Co. , 670

So. 2d 932 (Fla. 1996).

21. The Department provided competent substantial evidence

to establish that Mr. Fernandez resided in Respondent's home

from April to October 2007, and that Respondent admitted that

fact to Mr. Fernandez' parole officer while concealing it from

the Department and the Children's Home Society.

22. In response, Respondent provided an unsupported theory

that the Department and the Children's Home Society were engaged

in a "conspiracy" to reunite M.G. with an older sibling, and

this conspiracy required that M.G. be removed from Respondent's

home and that Respondent lose her foster care license.

Respondent's other contention, that Mr. Fernandez posed no

threat to the children in Respondent's home, was at best

secondary to the fact that Respondent was dishonest in her

dealings with the Department.

23. The Department has satisfied its burden in this

matter.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered by the Department

of Children and Family Services revoking Respondent's foster

care license.

DONE AND ENTERED this 4th day of April, 2008, in

Tallahassee, Leon County, Florida.

S

LAWRENCE P. STEVENSON

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 4th day of April, 2008.

ENDNOTES

1/ The referenced rules have been repealed, effective April 6,

2008. See the December 1, 2006, issue of the Florida

Administrative Weekly (vol. 32, no. 48, pp. 5672-5673) for the

notice of repeal. As of the writing of this order, the date of

repeal has been published at www.flrules.org but has not

appeared in the Florida Administrative Weekly .

2/ All references to Florida Statutes are to Florida Statutes

(2007), unless otherwise indicated.

3/ Current Department of Corrections Offender Network

information indicates that Mr. Fernandez received a two-year

sentence on February 12, 2008, entered the Taylor Correctional

Institution Annex on February 20, 2008, and is scheduled to

remain incarcerated until December 24, 2009. At the time of the

hearing, Mr. Fernandez was still free and subject to monitoring

by his probation officer.

4/ Respondent chose not to testify at the final hearing.

COPIES FURNISHED :

T. Shane DeBoard, Esquire

Department of Children and Family Services

400 West Robinson Street, Suite S-1114

Orlando, Florida 32801

Mercedes Gonzalez

1495 Malibu Circle Northeast, Unit 11

Palm Bay, Florida 32905

Gregory Venz, Agency Clerk

Department of Children and

Family Services

1317 Winewood Boulevard

Building 2, Room 204B

Tallahassee, Florida 32399-0700

John Copelan, General Counsel

Department of Children and

Family Services

1317 Winewood Boulevard

Building 2, Room 204B

Tallahassee, Florida 32399-0700

Robert Butterworth, Secretary

Department of Children and

Family Services

1317 Winewood Boulevard

Building 2, Room 204B

Tallahassee, Florida 32399-0700

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.