08-001757 Robin Peagler vs. Department Of Children And Family Services Status: Closed Recommended Order on Thursday, December 4, 2008.

Summary: The evidence showed that Petitioner could not work cooperatively with the Department based on her long and troubled history of employment and litigation with the Department and had misled the Department in the past about her marital and divorce history.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBIN PEAGLER, )

)

Petitioner, )

)

vs. ) Case No. 08-1757

)

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

before Judge Diane Cleavinger, Administrative Law Judge,

Division of Administrative Hearings, on July 29, 2008, in

Pensacola, Florida.

APPEARANCES

For Petitioners: Robin Peagler, pro se

1011 West Chase Street

Pensacola, Florida 32501

For Respondent: Eric D. Schurger, Esquire

Assistant Regional Counsel

Department of Children

and Family Services

160 Government Street, Suite 601

Pensacola, Florida 32502-5734

STATEMENT OF THE ISSUE

Whether Petitioner’s application for licensure as a foster

home should be granted.

PRELIMINARY STATEMENT

In a letter dated February 18, 2008, the Department of

Children and Family Services (Department or Respondent) notified

Robin Peagler (Petitioner) that her application for licensure as

a foster home was denied for failure to meet the minimum

standards for licensure set out in Section 409.175, Florida

Statutes, and Florida Administrative Code Rule 65C-13.

Specifically, the application was denied based on Petitioner’s

alleged inconsistent and/or false statements on licensing forms

and an inability to work with Department personnel as

demonstrated by her refusal to leave the office of the Chief

Counsel of the Department, her insistence in participating in a

closed visitation, inappropriate behavior that resulted in her

termination from employment with the Department, and multiple

litigations against the Department. Petitioner disagreed with

the Department’s denial and timely requested a formal

administrative hearing contesting Respondent’s action.

Petitioner’s request for hearing was forwarded to the Division

of Administrative Hearings.

At the hearing, Petitioner testified on her own behalf and

offered the testimony of one witness. Additionally, Petitioner

offered 10 exhibits into evidence. The Department offered the

testimony of six witnesses and introduced 20 exhibits into

evidence.

After the hearing, Petitioner filed a Proposed Recommended

Order on September 11, 2008. Respondent filed a Proposed

Recommended Order on September 26, 2008.

FINDINGS OF FACT

1. The Department is the state agency responsible for

licensure of foster homes. In carrying out its licensure

duties, the Department contracts some license processing

functions to FamiliesFirst Network. In turn, FamiliesFirst

subcontracts with Children’s Home Society to perform a variety

of license processing functions. In this case, Children’s Home

Society was the organization that initially reviewed

Petitioner’s 2007 licensure application.

2. In 1984, prior to her employment with the Department,

Petitioner married a man in the military. Petitioner testified

that the marriage was one of convenience for both parties and,

while legal, was not a true marriage since the marriage was

never consummated. Petitioner’s explanation regarding the

benefit each got from the marriage was vague. In essence,

Petitioner characterized her marriage as a way for her to get

out of financial difficulty. She testified that a soldier

approached her and offered to pay her bills if she would marry

him so that he could live off base. However, Petitioner legally

divorced her husband in 1988 when she learned that he had

contracted AIDS.

3. Since at least 1997, Petitioner was employed by the

Department. At some point, she was employed as an Economic

Self-Sufficiency Specialist I (ESSI). As an ESSI, Petitioner

generally handled applications for food stamps and interviewed

clients to determine eligibility for food stamps, Medicaid and

cash assistance benefits.

4. In 1999, while employed with the Department, Petitioner

applied for licensure as a foster home. On the initial

licensing application in 1999, Petitioner wrote in the marital

history section, “I am single and have never been married.” On

the foster family self-study, Petitioner left her marital

history blank. Furthermore, Petitioner marked “n/a” for ‘not

applicable’ in the section regarding her divorce. That

information was incorporated in the initial licensing study

compiled by Children’s Home Society on April 28, 1999. Clearly,

the statements made by Petitioner in her 1999 application and

the information she provided to the Department during the

application process were false since she had been married and

divorced.

5. Petitioner also completed a licensure self-study form

in April 2001. In the sections regarding her marital history,

Petitioner marked “n/a” for ‘not applicable,’ incorrectly

indicating that she had never been married or, in some manner,

the section on marriage did not apply to her. Again, the

information was false.

6. In another licensure self-study in September 2001,

Petitioner left her marital history blank. Similarly,

Petitioner left the marital history section blank on a personal

profile form completed by her in 2001. That document was

updated in 2003 and the marital history section was again left

blank.

7. In March 2003, Petitioner again marked “n/a” in the

marital history section of a licensure self-study form. At

about the same time, Petitioner also completed a questionnaire

as part of the home-study process performed by FamiliesFirst

Network. One of the questions called for a box to be checked as

to how a previous marriage ended. Petitioner did not check any

of the answers or indicate that she had been divorced. The lack

of response is particularly troubling since Petitioner had

indicated at least once that she had not been married, at least

twice that the marital history sections on various forms did not

apply to her based on her rationalization that the marriage had

never been consummated, and at least once that the divorce

history section did not apply to her. However, Petitioner knew

that she had been legally married and legally divorced. Indeed,

the fact of her divorce was not affected by the lack of

consummation of the marriage; her ostensible rationale for not

recognizing her marriage was from a religious point of view.

These misrepresentations were material to the review of her

fitness for licensure.

8. Finally, in her 2005 application, Petitioner did

indicate to the person who was processing her application that

she was married. The provision of the correct information by

Petitioner in 2005 occurred after the processor inquired and

pursued questions about Petitioner’s marital history and does

not mitigate Petitioner’s past multiple misrepresentations

regarding her marital and divorce history.

9. At hearing, Petitioner acknowledged that she provided

inconsistent information about her prior marriage. She was

concerned that her marriage was coming back to haunt her. She

stated, “I didn’t know that it was going to come back and bite

me.” However, such concern does not mitigate the fact that

Petitioner failed, on multiple occasions, to disclose her

divorce and marriage to the Department.

10. As indicated above, Petitioner was also employed by

the Department during the time she was seeking licensure as a

foster home. Unfortunately, throughout the time that Petitioner

was employed, she developed a very troubled relationship with

the Department and, in particular, with Katie George, the

Department’s General Counsel.

11. Petitioner’s difficulty with the Department resulted

in several legal cases against the Department in which

Ms. George represented the Department. These cases extended

over a five-year period. The cases involved two small claims

cases requesting reimbursement for sodas and copying costs that

arose out of five other litigations before the Public Employees

Relations Commission. The two small-claims lawsuits seeking

reimbursement for out-of-pocket expenses, including sodas and

photocopies, were dismissed by the Court.

12. The evidence demonstrated that Petitioner was

terminated twice by the Department. Petitioner contested her

first dismissal before the Public Employees Relations

Commission. Petitioner’s first dismissal was overturned by the

Public Employees Relations Commission on a legal technicality.

The Commission specifically noted that they neither condoned nor

agreed with malfeasance in office but had to grant a double-

jeopardy type exception since the Department had originally

suspended Petitioner for malfeasance in office and then

attempted to increase the discipline it had imposed to dismissal

of Petitioner. Petitioner was reinstated to her position by the

Commission and back pay was ordered. As part of the back-pay

case with the Public Employees Relations Commission, the

Petitioner was denied reimbursement for private cash advances

and private auto insurance expenses that she claimed the

Department owed to her as part of her wages.

13. Petitioner’s second termination was for conduct

unbecoming a public employee and involved outrageous and bizarre

behavior towards a client of the Department who had applied for

Medicaid and food stamps. During the incident Petitioner

berated, belittled and treated the client so poorly that he was

reduced to tears and would not return for food stamps when it

was time to renew the same. The client prayed with Petitioner

inside her office. The client described Petitioner as chanting

and acting so strangely that he abruptly ended the prayer by

saying “amen.” Additionally, Petitioner told the client that

she understood how he felt and that the Department was out to

terminate her because some of her co-workers thought she was

crazy. She also told the client the Department had tried, but

failed, to terminate her before. The client eventually filed a

complaint with the Department regarding Petitioner and her

behavior during the interview with the client. Later,

Petitioner called the client at his unlisted phone number that

she could only have obtained through Departmental records and

tried to intimidate the client into changing his complaint or

not testifying.

14. Based on this incident and some other incidents

regarding Petitioner’s work, the Department dismissed Petitioner

a second time. Petitioner, again, contested her dismissal

before the Public Employees Relations Commission. The dismissal

was upheld by all the Courts who heard the case and eventual

appeals.

15. The nature of the litigation and the eventual outcome

are illustrated in the Public Employees Relations Commission

Hearing Officer’s Recommended Order dated February 10, 2003; the

Public Employees Relations Commission Final Order dated

March 17, 2003; the per curiam affirmed opinion of the First

District Court of Appeal dated February 18, 2004; the Order of

the First District Court of Appeal denying rehearing dated

April 5, 2004, and the Order of the Supreme Court of Florida

dismissing review dated May 19, 2004.

16. In addition, Petitioner filed a federal employment

discrimination lawsuit against the Department. The suit was

based, in part, on her earlier termination. During the course

of the federal litigation, depositions were taken. During those

depositions, Ms. George learned that Petitioner had falsified

her application with the Department because she had previous

jobs from which she had been fired that were not listed on the

application. However, the Department was represented by outside

risk counsel, who negotiated a $5,000.00 settlement payment to

Petitioner. The settlement was accepted by the Department based

on the nuisance value of continued litigation of the case. The

Department did not admit any discriminatory action towards

Petitioner in its termination of her.

17. At some point after her second termination, Petitioner

visited Ms. George’s legal office at the Department. Petitioner

visited the office to either pick up or deliver some papers.

However, testimony was not clear on the exact nature of the

visit and what occurred during Petitioner’s visit. Testimony

did establish that Petitioner became disruptive in the office

towards Ms. George’s legal staff. Petitioner was asked to leave

and initially refused. Eventually, Petitioner left the office

after Ms. George instructed her staff to call law enforcement.

18. Petitioner also filed a complaint with the Florida Bar

regarding Ms. George’s representation of her client. The Bar

complaint against Ms. George was dismissed by the Florida Bar.

19. Finally, during this proceeding, Petitioner accused

Ms. George of sending law enforcement to Petitioner’s house.

Ms. George did not take such action against Petitioner.

20. Given all of these incidents, Petitioner’s troubled

employment history and litigation with the Department, the

evidence demonstrated that, in the past, Petitioner has not

worked cooperatively with the Department and seems to have

developed a difficult and suspicious relationship with it.

Based on this history, the evidence did not demonstrate that

Petitioner could, presently or in the future, work cooperatively

with the Department as a foster parent.

21. The 2007 application was reviewed by Nicola Spear.

Ms. Spear works in the licensing section of FamiliesFirst

Network. She compiled the November 2007 foster parent licensing

home-study on Petitioner.

22. After reviewing the application and completing the

home-study, Ms. Spear recommended that Petitioner’s license

application be granted by the Department. Ms. Spear was unaware

of the Petitioner’s history regarding the Department or her

prior statements regarding her marriage and divorce.

23. She subsequently learned the reasons why Petitioner

was terminated from her employment with the Department,

including inappropriate client interactions. Once the

Department learned of Petitioner’s application and the initial

recommendation of Ms. Spear, either Ms. George or administrative

staff called a meeting with its contractors and Ms. Spear to

review the recommendation and provide information regarding

Petitioner’s history with the Department.

24. After receiving the information, Ms. Spear changed her

recommendation and recommended that Petitioner not be licensed

as a foster parent. Ms. Spear testified that while Petitioner

was very cooperative during the licensure process, she was

concerned that Petitioner might not be able to work

cooperatively with the Department or its contracted partners.

25. Mary Martin, a licensing specialist with the

Department, received Petitioner’s licensing packet from

Ms. Spear. Ms. Martin was made aware that Petitioner had been

dismissed from the Department, had a history of difficulties

with the Department and of Petitioner’s lack of candor regarding

her marriage and divorce.

26. Ms. Martin also learned from Ms. Oakes, a contractor

for the Department, that in 2002, Ms. Oakes had instructed her

staff to call law enforcement to a visitation between foster

children and their parent because Petitioner wanted to

participate in the court-ordered closed visit and would not

leave the visitation site at Children’s Home Society. However,

the contractor who supplied this information did not witness the

incident. The person who was present during the alleged

incident did not testify at the hearing and all the testimony

regarding the incident was based on hearsay. Additionally,

Petitioner was not aware that law enforcement had been called

since Petitioner voluntarily left the visitation before the

police arrived. Given the hearsay nature of the facts

surrounding the visitation incident, the incident cannot provide

a basis for denial of Petitioner’s application.

27. On the other hand, Ms. Martin found Ms. Peagler

hostile to work with during the interview process with her.

Ms. Martin did not feel that Petitioner could work cooperatively

with the Department and could not be trusted to provide accurate

information to the Department. She recommended denial of

Petitioner’s 2007 application.

28. Ultimately, Petitioner’s foster home application was

denied on February 18, 2008. The basis for denial was her false

statements, her history with the Department, and her intolerance

and inflexibility with the Department.

29. Currently, Petitioner is self-employed as a provider

of services to persons with developmental disabilities. She is

licensed through the Agency for Persons with Disabilities (APD).

There was no evidence that Petitioner had difficulty working

with APD. The evidence also did not show that Petitioner had a

long and troubled relationship with APD or that APD was aware of

Petitioner’s misrepresentations regarding her marriage and

divorce.

30. Robin Woods Reshard testified generally about her

friendship with Petitioner. Although she works with school-age

children, she never worked with or for the Department.

Ms. Reshard primarily knows Petitioner through their Church.

She speaks highly of Petitioner, although finds her to be

stubborn, at times. She thinks Petitioner would make an

excellent foster parent.

31. However, given the facts of this case regarding

Petitioner’s multiple litigations with the Department, her

general suspiciousness regarding the Department and its

personnel, her misrepresentations regarding her marriage and

divorce, and her mistreatment of a client of the Department, her

good work with APD and Ms. Reshard’s recommendation do not

demonstrate that Petitioner can now work cooperatively with the

Department or can be trusted by the Department to be honest with

it in fostering children. Both of these qualities are necessary

for successful licensure as a foster home. Therefore,

Petitioner’s application for licensure as a foster home should

be denied.

CONCLUSIONS OF LAW

32. The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

proceeding. Sections 120.569 and 120.57(1), Florida Statutes

(2008).

33. Section 409.175, Florida Statutes (2007), governs the

licensure of foster homes. The purpose of the law is to protect

children in the foster care of the state.

34. The Department of Children and Family Services is the

state agency responsible for granting or denying applications

for foster home licensure. § 409.175, Fla. Stat. (2007).

35. The definition of “license” found in Section

409.175(2)(f), Florida Statutes (2007), includes the following

directives:

A license under this section is issued to a

family foster home or other facility and is

not a professional license of any

individual. Receipt of a license under this

section shall not create a property right in

the recipient. A license under this act is

a public trust and a privilege, and is not

an entitlement. This privilege must guide

the finder of fact or trier of law at any

administrative proceeding or court action

initiated by the department.

36. The Department must screen applicants for foster home

licensure and make a determination that they possess good moral

character. The lack of good moral character is grounds for

denial, revocation, or suspension of a foster home license.

(2007). Additionally, Florida Administrative Code Rule 65C-

parents to be tolerant, flexible and able to work in partnership

with the Department. Recodified at Fla. Admin. Code R. 65C-

13.022, et seq .

37. Petitioner has the burden of proof to establish by a

preponderance of evidence that the foster home license

application should be granted.

38. Section 409.175(12)(a)2., Florida Statutes (2007)

provides that,

It is unlawful for any person or agency to:

Make a willful or intentional misstatement

on any license application or other document

required to be filed in connection with an

application for a license.

Such a misstatement is a first-degree misdemeanor.

declared that “[a]pplicants who make such willful or intentional

misstatements will have their license denied or revoked.”

Fla. Admin Code R. 65C-13.001, now Fla. Admin. Code R. 65C-

13.031 (effective April 6, 2008).

39. In this case, Ms. Peagler has not established by a

preponderance of the evidence that she is entitled to a foster

home license.

40. The evidence demonstrated that Petitioner made willful

and intentional misstatements on numerous licensure forms.

Further, she was terminated from the Department for serious

misconduct towards a client. Finally, Petitioner has been

intolerant, inflexible and unable to work cooperatively with the

Department and has a significantly troubled history with the

Department and its personnel.

41. On the other hand, Petitioner is licensed by APD to

work with persons with disabilities. However, such licensure is

separate from licensure as a foster parent by the Department.

The decision of APD to license Petitioner as a direct-service

provider to persons with developmental disabilities is not

binding upon the Department regarding Petitioner’s application

to be a licensed foster parent. See § 435.07(5), Fla. Stat.

(2007). In this case, Petitioner’s work with the APD indicates

that she can work cooperatively with APD personnel. However, it

does not indicate that Petitioner can work cooperatively with

the Department, its personnel or contractors. Given these

facts, Petitioner’s application for licensure as a foster home

should be denied.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Department of Children and

Family Services enter a Final Order denying the application of

Robin Peagler for foster home licensure.

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

Tallahassee, Leon County, Florida.

S

DIANE CLEAVINGER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 4th day of December, 2008.

COPIES FURNISHED :

Eric D. Schurger, Esquire

Department of Children

and Family Services

160 Governmental Center, Suite 601

Pensacola, Florida 32501-5734

Robin Peagler

1011 West Chase Street

Pensacola, Florida 32501

Gregory Venz, Agency Clerk

Department of Children

and Family Services

Building 2, Room 204B

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

George Sheldon, Interim Secretary

Department of Children

and Family Services

Building 1, Room 202

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

John J. Copelan, General Counsel

Department of Children

and Family Services

Building 2, Room 204

1317 Winewood Boulevard

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.