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


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

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8DEPARTMENT OF CHILDREN AND )

13FAMILY SERVICES, )

16)

17Petitioner, )

19)

20vs. ) Case No. 07-5778

25)

26MERCEDES GONZALEZ, )

29)

30Respondent. )

32)

33RECOMMENDED ORDER

35Pursuant to notice, a final hearing was conducted in this

45case on February 7, 2008, in Orlando, Florida, before

54Lawrence P. Stevenson, a duly-designated Administrative Law

61Judge of the Division of Administrative Hearings ("DOAH").

71APPEARANCES

72For Petitioner: T. Shane DeBoard, Esquire

78Department of Children and

82Family Services

84400 West Robinson Street, Suite S-1114

90Orlando, Florida 32801

93For Respondent: Jerry Pitzer, Qualified Representative

995338 North Woodcrest Drive

103Winter Park, Florida 32792

107STATEMENT OF THE ISSUE

111The issue in this case is whether Respondent's foster care

121license should be revoked for violating Florida Administrative

129Code Rules 65C-13.009 and 65C-13.010. 1

135PRELIMINARY STATEMENT

137Respondent was notified by letter dated November 13, 2007,

146and sent by certified mail on November 14, 2007, that the

157Department of Children and Family Services (the "Department")

166intended to revoke her license to operate a family foster home.

177By letter dated November 29, 2007, Respondent notified the

186Department of her intent to contest the revocation and requested

196a formal administrative hearing. On December 26, 2007, the case

206was forwarded to DOAH for the assignment of an administrative

216law judge and the conduct of a formal administrative hearing.

226The Department's letter stated the following reasons for

234the revocation of Respondent's foster care license:

2411) Failure to disclose all household

247members. It has come to the attention of the

256Department of Children and Families and

262Children's Home Society that you have an un-

270screened household member living in your

276home, providing supervision for the foster

282children that have been entrusted in your

289care. It is the foster parent's

295responsibility to inform the Child Placing

301Agency, Children's Home Society, of any

307changes in the household composition. This

313is a violation of your Bilateral Agreement

320(section entitled Foster Parent

324Responsibilities to Children's Home Society,

329subsection d and e) which you signed on

337July 11, 2007. This is also a violation of

346F.A.C. 65C-13.010(4)(g).

3482) Failure to properly screen household

354members. Household members and substitute

359care parents are required to be background

366screened to ensure safety and stability of

373the children to be placed in their home.

381Your paramour, the household member in

387question, has not been properly background

393screened as mandated in F.A.C. 65C-

39913.009(6)(b), (c) and (d).

4033) The household member residing in your

410home appears to be a convicted felon. He was

419sentenced in a case involving the

425use/possession and/or sale/delivery of heroin

430in 2004. He is currently on probation and

438has given your address as his address of

446record with his probation office.

451At the hearing, the Department presented the testimony of

460Robert Ellis, a probation officer for the Department of

469Corrections; John Hubbard, a Department attorney who prosecutes

477child abuse and negligence cases; Arlene Clark, a case manager

487for the Children's Home Society; and Sarah Yaccarino, a

496licensing specialist for the Department. The Department's

503Exhibits 1 through 9 were admitted into evidence. Respondent

512presented the testimony of Marie Nistri, a program administrator

521for the Department; Miguel Diaz, a former supervisor in the

531Department's Brevard County licensing unit; and Laurie Light,

539guardian ad litem for the foster child M.G. Respondent offered

549no exhibits.

551The Transcript of the hearing was filed at DOAH on

561February 25, 2008. The Department filed its proposed

569recommended order on February 27, 2008. Respondent filed her

578proposed recommended order on March 4, 2008. Both proposed

587recommended orders have been carefully considered during the

595preparation of this Recommended Order.

600FINDINGS OF FACT

6031. The Department is the state agency responsible for

612licensing and monitoring foster care parents. One of its duties

622is to monitor foster homes and supervise the background

631screenings of household members when necessary.

6372. Respondent has operated a family foster home for

646several years. Her most recent family foster home license was

656issued on or about September 18, 2007.

6633. M.G., born on June 13, 2003, was a foster child in

675Respondent's home for at least six months prior to an Order

686Changing Placement, dated January 30, 2008, issued by Circuit

695Court Judge John Griesbaum of the Eighteenth Judicial Circuit in

705and for Brevard County, that removed the child from Respondent's

715home and placed her in the temporary custody of the Department

726pending placement in a new foster home.

7334. Judge Griesbaum's eight-page order concluded that

740Respondent had intentionally withheld information from the

747Department and the Children's Home Society regarding Jose Diego

756Fernandez, who lived at Respondent's home from April 2007

765through October 2007.

7685. On September 13, 2004, Mr. Fernandez entered a plea of

779guilty to the possession and sale of heroin, in violation of

790Sections 893.03 and 893.13, Florida Statutes (2004). 2 Possession

799of a controlled substance is a third degree felony. The sale of

811heroin is a second degree felony. The court withheld

820adjudication and placed Mr. Fernandez on probation for a period

830of five years.

8336. In 2006, Mr. Fernandez was arrested for possession of

843heroin with intent to sell and the possession of drug

853paraphernalia, in violation of his probation terms.

860Mr. Fernandez entered a plea of guilty to the charges on

871January 3, 2008. 3

8757. Robert Ellis is a probation officer who took charge of

886Mr. Fernandez' probation in August 2007. Mr. Ellis was familiar

896with the records regarding Mr. Fernandez' probation dating from

9052004. Mr. Ellis testified that on or about April 23, 2007,

916Mr. Fernandez provided a change of address to the probation

926office. The new address given by Mr. Fernandez was 1495 Malibu

937Circle NE, Unit 111, Palm Bay, Florida. This is the address

948from which Respondent operates her licensed family foster home.

9578. Mr. Ellis testified that he had visited Mr. Fernandez

967at Respondent's house on several occasions, though never inside

976the house. Mr. Fernandez would meet Mr. Ellis in a screened

987patio area in front of the house.

9949. Mr. Ellis saw the inside of the house only once, when

1006he knocked to inquire whether Mr. Fernandez was at home.

1016Respondent answered the door and told Mr. Ellis that

1025Mr. Fernandez would be back later in the day. Respondent

1035affirmed to Mr. Ellis that Mr. Fernandez was still living there.

104610. Mr. Ellis testified that Mr. Fernandez moved out of

1056Respondent's house and into a motel in October 2007.

106511. Arlene Clark is a case manager for the Children's Home

1076Society who monitored Respondent's home from late 2005 until

1085November 2007. Respondent had introduced Mr. Fernandez to

1093Ms. Clark as a friend of the family, and Ms. Clark saw him

1106around the house on several occasions. On November 7, 2007,

1116Respondent admitted to Ms. Clark that she had lied when she said

1128that Mr. Fernandez was not living in Respondent's home.

1137Respondent told Ms. Clark that she was just trying to help a

1149friend, and that there was nothing wrong with her actions

1159because the children were not placed in any danger.

116812. The Children's Home Society is a "child-placing

1176agency" as that term is defined in Subsection 409.175(2)(d),

1185Florida Statutes. On July 11, 2007, Respondent entered into a

"1195Bilateral Service Agreement" with the Children's Home Society,

1203for the following stated purpose:

1208The purpose of this Agreement is to identify

1216the expectations for both foster parents and

1223the Children's Home Society on behalf of the

1231children and families that are served in the

1239foster care program. This agreement

1244reflects standards of care that are current

1251requirements in Florida Administrative Code,

1256which are based on statutory authority found

1263in section 409.175, Florida Statutes. The

1269premise of this agreement is that the

1276Children's Home Society and foster parents

1282must work as partners to assure safety, to

1290provide for the physical and mental well

1297being and to obtain permanency for each

1304child.

130513. Under the heading "Foster Parent Responsibilities to

1313Children's Home Society," the Bilateral Service Agreement

1320provides, inter alia , that the foster parent is required:

1329d. To notify Children's Home Society

1335immediately of a potential change in

1341address, living arrangements, marital

1345status, family composition (who is in the

1352home), employment, significant health

1356changes or any other condition that may

1363affect the child's well-being.

1367e. To notify Children's Home Society

1373promptly of all contacts the family or any

1381member of the home has with police or any

1390law enforcement agencies.

139314. Respondent did not notify the Children's Home Society

1402that Mr. Fernandez had moved into her home. In fact,

1412Ms. Clark's testimony established that Respondent affirmatively

1419concealed the fact that Mr. Fernandez was living in the foster

1430home. 4

1432CONCLUSIONS OF LAW

143515. The Division of Administrative Hearings has

1442jurisdiction over the parties to and the subject matter of this

1453proceeding pursuant to Section 120.569 and Subsection 120.57(1),

1461Florida Statutes (2007).

146416. The Department is the agency charged with the

1473responsibility of licensing foster family homes in the State of

1483Florida. Section 409.175, Florida Statutes (2007), reads in

1491pertinent part:

1493(9)(a) The department may deny, suspend, or

1500revoke a license.

1503(b) Any of the following actions by a home

1512or agency or its personnel is a ground for

1521denial, suspension, or revocation of a

1527license:

1528* * *

15312. A violation of the provisions of this

1539section or of licensing rules promulgated

1545pursuant to this section.

154917. Florida Administrative Code Rule 65C-13.009, as

1556written at the times pertinent to this proceeding, was titled

"1566Parent Preparation and Mutual Selection" and provided in

1574relevant part:

1576(6) Requirements for Department of Children

1582and Family Services Staff.

1586(a) The certified [Group Preparation and

1592Selection] leader, staff and parents, must:

1598* * *

16015. Request a criminal records check for all

1609persons age 18 and older residing in the

1617prospective home, using the following

1622procedures:

1623a. Have each adult sign a release of

1631information and consent to law enforcement

1637and abuse registry record check.

1642b. Complete a one-time employment history

1648check. This check shall be over a two-year

1656period of time preceding the family's

1662application to provide care and excluding

1668periods of unemployment.

1671c. Complete request for criminal history

1677record check.

1679d. Submit request to the Florida Department

1686of Law Enforcement.

16896. Request Abuse Registry clearance for all

1696persons age 18 and older residing in the

1704prospective home. The following procedures

1709should be used to procure an Abuse Registry

1717clearance:

1718a. Provide the following information on

1724each adult residing in the home: name,

1731race, sex, date of birth, social security

1738number, name of any previous spouse, and

1745names of all children.

1749b. Submit request for Abuse Registry

1755clearances to the district background

1760screening unit for processing.

1764* * *

1767(b) Screening. According to Section

1772409.175, F.S., screening means the act of

1779assessing the background of personnel and

1785includes, but is not limited to, employment

1792history check, check of references, local

1798criminal records check through local law

1804enforcement agencies, fingerprinting,

1807statewide criminal records check through the

1813Department of Law Enforcement, federal

1818criminal records through the Federal Bureau

1824of Investigation and abuse registry

1829clearance. The implementation of the

1834screening policies and procedures and the

1840determination of good moral character is the

1847responsibility of the district screening

1852coordinator. The district screening

1856coordinator works closely with the district

1862licensing counselor to ensure compliance

1867with the statute.

1870(c) Local Criminal Records Checks. The

1876local criminal records check is completed

1882yearly through the sheriff or police

1888department located in the community in which

1895the applicant resides. Unless the applicant

1901has lived in the current jurisdiction at

1908least six months, the screening is also

1915conducted for the applicant's previous

1920residence. The licensing program is

1925responsible for coordinating the local

1930criminal records clearance through the

1935district screening coordinator.

1938(d) State and Federal Checks. The state

1945criminal records checks are completed every

1951five years and the federal criminal records

1958check, fingerprints, are only done one time

1965at the initial licensing. General

1970information about this screening is as

1976follows:

19771. Fingerprints are taken by official law

1984enforcement personnel, Department of

1988Children and Family Services personnel or

1994local licensing employees trained for the

2000purpose.

20012. The cost for processing fingerprint

2007cards for families interested in providing

2013family foster care, family emergency shelter

2019care or family group care is assumed by the

2028department.

20293. Fingerprint cards are submitted directly

2035to the department for handling.

20404. The disposition of the state and federal

2048criminal records check is the responsibility

2054of the district screening coordinator. The

2060coordination procedures of the disposition

2065results may vary from district to district.

2072Licensing staff must work closely with their

2079screening coordinators to ensure the

2084disposition information is received in a

2090timely manner in order to take action on the

2099licensing application.

210118. Florida Administrative Code Rule 65C-13.010, as

2108written at the time pertinent to this proceeding, was titled

"2118Substitute Care Parents' Role as a Team Member" and provided in

2129relevant part:

2131(4) Responsibilities of the Substitute Care

2137Parents to the Department.

2141* * *

2144(g) The substitute care parents must notify

2151the department regarding changes which

2156affect the life and circumstances of the

2163shelter or foster family.

216719. The quoted rules plainly require background screening

2175of all adults residing in a prospective foster home, and further

2186require that foster parents notify the Department of changes in

2196the household that "affect the life and circumstances" of the

2206foster family. The presence in the household of a convicted

2216felon is certinaly a change that affected the circumstances of

2226the foster family. Respondent had an obligation, under the

2235rules, as well as the Bilateral Service Agreement quoted in

2245Findings of Fact 12 and 13 above, to notify the Department of

2257Mr. Fernandez' presence as a resident in her home, so that a

2269proper crimnial and abuse registry screening could be performed.

227820. The Department seeks revocation of Respondent's foster

2286care license. As the party asserting the affirmative of an

2296issue before this administrative tribunal, the Department has

2304the burden of proof. Florida Department of Transportation v.

2313J.W.C. Company , 396 So. 2d 778 (Fla. 1st DCA 1981). However, in

2325accordance with the definition of "license" contained in

2333Subsection 409.175(2)(f), Florida Statutes, the licensure status

2340previously awarded to Respondent is not a professional license

2349and does not create a property right. Therefore, the Department

2359must establish facts which support its position by a

2368preponderance of the evidence rather than by a clear and

2378convincing standard normally imposed in professional licensure

2385cases. See Department of Banking and Finance, Division of

2394Securities and Investor Protection v. Osborne Stern and Co. , 670

2404So. 2d 932 (Fla. 1996).

240921. The Department provided competent substantial evidence

2416to establish that Mr. Fernandez resided in Respondent's home

2425from April to October 2007, and that Respondent admitted that

2435fact to Mr. Fernandez' parole officer while concealing it from

2445the Department and the Children's Home Society.

245222. In response, Respondent provided an unsupported theory

2460that the Department and the Children's Home Society were engaged

2470in a "conspiracy" to reunite M.G. with an older sibling, and

2481this conspiracy required that M.G. be removed from Respondent's

2490home and that Respondent lose her foster care license.

2499Respondent's other contention, that Mr. Fernandez posed no

2507threat to the children in Respondent's home, was at best

2517secondary to the fact that Respondent was dishonest in her

2527dealings with the Department.

253123. The Department has satisfied its burden in this

2540matter.

2541RECOMMENDATION

2542Based on the foregoing Findings of Fact and Conclusions of

2552Law, it is

2555RECOMMENDED that a final order be entered by the Department

2565of Children and Family Services revoking Respondent's foster

2573care license.

2575DONE AND ENTERED this 4th day of April, 2008, in

2585Tallahassee, Leon County, Florida.

2589S

2590LAWRENCE P. STEVENSON

2593Administrative Law Judge

2596Division of Administrative Hearings

2600The DeSoto Building

26031230 Apalachee Parkway

2606Tallahassee, Florida 32399-3060

2609(850) 488-9675 SUNCOM 278-9675

2613Fax Filing (850) 921-6847

2617www.doah.state.fl.us

2618Filed with the Clerk of the

2624Division of Administrative Hearings

2628this 4th day of April, 2008.

2634ENDNOTES

26351/ The referenced rules have been repealed, effective April 6,

26452008. See the December 1, 2006, issue of the Florida

2655Administrative Weekly (vol. 32, no. 48, pp. 5672-5673) for the

2665notice of repeal. As of the writing of this order, the date of

2678repeal has been published at www.flrules.org but has not

2687appeared in the Florida Administrative Weekly .

26942/ All references to Florida Statutes are to Florida Statutes

2704(2007), unless otherwise indicated.

27083/ Current Department of Corrections Offender Network

2715information indicates that Mr. Fernandez received a two-year

2723sentence on February 12, 2008, entered the Taylor Correctional

2732Institution Annex on February 20, 2008, and is scheduled to

2742remain incarcerated until December 24, 2009. At the time of the

2753hearing, Mr. Fernandez was still free and subject to monitoring

2763by his probation officer.

27674/ Respondent chose not to testify at the final hearing.

2777COPIES FURNISHED :

2780T. Shane DeBoard, Esquire

2784Department of Children and Family Services

2790400 West Robinson Street, Suite S-1114

2796Orlando, Florida 32801

2799Mercedes Gonzalez

28011495 Malibu Circle Northeast, Unit 11

2807Palm Bay, Florida 32905

2811Gregory Venz, Agency Clerk

2815Department of Children and

2819Family Services

28211317 Winewood Boulevard

2824Building 2, Room 204B

2828Tallahassee, Florida 32399-0700

2831John Copelan, General Counsel

2835Department of Children and

2839Family Services

28411317 Winewood Boulevard

2844Building 2, Room 204B

2848Tallahassee, Florida 32399-0700

2851Robert Butterworth, Secretary

2854Department of Children and

2858Family Services

28601317 Winewood Boulevard

2863Building 2, Room 204B

2867Tallahassee, Florida 32399-0700

2870NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

2876All parties have the right to submit written exceptions within

288615 days from the date of this Recommended Order. Any exceptions

2897to this Recommended Order should be filed with the agency that

2908will issue the Final Order in this case.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 07/21/2008
Proceedings: Agency Final Order
PDF:
Date: 07/21/2008
Proceedings: Final Order filed.
PDF:
Date: 04/04/2008
Proceedings: Recommended Order
PDF:
Date: 04/04/2008
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 04/04/2008
Proceedings: Recommended Order (hearing held February 7, 2008). CASE CLOSED.
PDF:
Date: 03/04/2008
Proceedings: Respondent`s Proposed Findings of Facts and Conclusions of Law as They Apply to this Case filed.
PDF:
Date: 02/27/2008
Proceedings: Petitioner`s Proposed Findings of Facts and Conclusions of Law filed.
Date: 02/25/2008
Proceedings: Transcript of Proceedings filed.
Date: 02/07/2008
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 02/06/2008
Proceedings: Petitioner`s Motion to Bifurcate Proceedings filed.
PDF:
Date: 01/31/2008
Proceedings: Second Amended Petitioner`s Witness List filed.
PDF:
Date: 01/29/2008
Proceedings: Amended Petitioner`s Response to Pre-hearing Intructions filed.
PDF:
Date: 01/28/2008
Proceedings: Respondents List of Witnesses filed.
PDF:
Date: 01/28/2008
Proceedings: Petitioner`s Response to Pre-Hearing Instructions filed.
PDF:
Date: 01/28/2008
Proceedings: Respondent`s Request for Production of Documents filed.
PDF:
Date: 01/25/2008
Proceedings: Respondent`s Request for Production of Documents filed.
PDF:
Date: 01/23/2008
Proceedings: Order Accepting Qualified Representative.
PDF:
Date: 01/17/2008
Proceedings: Initial Order for Qualified Representative filed.
PDF:
Date: 01/16/2008
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 01/16/2008
Proceedings: Notice of Hearing (hearing set for February 7, 2008; 9:00 a.m.; Orlando, FL).
PDF:
Date: 01/08/2008
Proceedings: Response to Initial Order filed.
PDF:
Date: 12/26/2007
Proceedings: Initial Order.
PDF:
Date: 12/24/2007
Proceedings: Revocation of Foster Care License filed.
PDF:
Date: 12/24/2007
Proceedings: Request for Administrative Hearing filed.
PDF:
Date: 12/24/2007
Proceedings: Notice (of Agency referral) filed.

Case Information

Judge:
LAWRENCE P. STEVENSON
Date Filed:
12/24/2007
Date Assignment:
01/02/2008
Last Docket Entry:
07/21/2008
Location:
Orlando, Florida
District:
Middle
Agency:
ADOPTED IN TOTO
 

Counsels

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