01-001114 Mary Collins vs. Department Of Children And Family Services Status: Closed Recommended Order on Tuesday, June 12, 2001.

Summary: Petitioner should be licensed to operate a foster home. There is no competent evidence that she neglected or abused her children or allowed anyone else to do so.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARY COLLINS , )

)

Petitioner , )

)

vs. ) Case No. 01-1114

)

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES , )

)

Respondent. )

______________________________)

RECOMMENDED ORDER

A formal hearing was conducted in this case on April 23,

2001, and May 21, 2001, in Mariana, Florida, before the Division

of Administrative Hearings, by its Administrative Law Judge,

Suzanne F. Hood.

APPEARANCES

For Petitioner : Mary Collins, pro se

Post Office Box 208

Greenwood, Florida 32443

For Respondent : John R. Perry, Esquire

Department of Children and

Family Services

2639 North Monroe Street, Suite 252A

Tallahassee, Florida 32399-2949

STATEMENT OF THE ISSUE

The issue is whether Respondent properly denied

Petitioner's application for a license to operate a foster home.

PRELIMINARY STATEMENT

By letter dated February 9, 2001, Respondent Department of

Children and Family Services (Respondent) denied Petitioner Mary

Collins' (Petitioner) application for a license to operate a

foster home. On February 21, 2001, Respondent hand-delivered a

second letter dated February 16, 2001, to Petitioner, denying

her application.

On March 7, 200 1, Petitioner filed a request for a formal

hearing with Respondent. Respondent referred Petitioner's

request to the Division of Administrative Hearings on March 21,

2001.

The parties filed a Response to Initial Order on March 28,

2001. A Notice of Hearing dated March 30, 2001, scheduled the

case for hearing on April 23, 2001.

During the hearing on April 23, 2001, Petitioner testified

on her own behalf and offered one exhibit, which was accepted

into evidence. Respondent presented the testimony of one

witness and offered one exhibit, which was accepted into

evidence. At the conclusion of the hearing, the parties agreed

to the granting of a continuance so that Petitioner could

subpoena additional witnesses.

On April 24, 2001, the undersigned issue d an Order Granting

Continuance and Rescheduling Hearing. This Order advised the

parties that the hearing would reconvene on May 21, 2001.

When the hearing reconvened on May 21, 2001, Petitioner

presented the testimony of one additional witness. She did not

offer additional exhibits for admission into evidence.

Respondent presented the testimony of one additional witness and

offered five additional exhibits, which were accepted into

evidence.

The parties did not file the transcript of the proceeding.

As of the date of this Order, the parties had not filed proposed

recommended orders.

FINDINGS OF FACT

1. In February 1990, Petitioner married Reverend Robert E.

Osborne, Jr.

2. In 1992, Petitioner lived at 6040 Oscar Road in

Greenwood, Florida.

3. 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.

4. 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.

5. 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.

6. 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.

7. 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.

8. 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.

9. 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.

10. 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.

11. 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.

12. 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.

13. During the hearing of the instant case, Terri Hayes

testified that Willie Cobb never hit her. Her testimony is

credible and without contradiction.

14. 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.

15. 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.

16. 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.

17. 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.

18. 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.

19. Respondent's counterpart in Washington tried to place

Trammel in foster care. However, Petitioner eventually got

official custody of her grandsonammel 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.

CONCLUSIONS OF LAW

20. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this

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

21. As the party seeking licensure, Petitioner bears the

burden of proving by a preponderance of the evidence that she

should be licensed to operate a foster home in Jackson County,

Florida. Department of Transportation v. J.W.C. Company , 396

So. 2d 778 (Fla. 1st DCA 1981) and Section 120.57(1)(j), Florida

Statutes.

22. In deciding this case, the fact finder must be guided

by the principle that a foster home license is not a

professional license of an entitlement, but rather is a "public

trust and a privilege." Section 409.175(2)(f), Florida

Statutes. However, Respondent can only deny a license based on

a reasoned decision.

23. In this case, Respondent stated as follows in its

February 16, 2001, denial letter:

1. There are three prior reports of abuse,

neglect, or abandonment that involve you and

or your children. A 1993 report of sexual

abuse of Jennifer by W.C. exists. In the

summary of the investigation there is

indication of Domestic Violence occurrences

between you and W.C. It also says that you

always dropped the charges and allowed him

to return to the home. The family was

referred for counseling.

2. Another report in 1993 alleges W.C. hit

Terri. This report indicated W.C. was back

in the home following the first report of

sexual abuse. The investigative summary

indicated the mother, Mary Collins, seemed

to minimize the incident saying W.C. only

tapped Terri and did not hurt her.

3. A third report in 1994 alleged Jennifer

Smith had been slapped in the face by her

mother, Mary Collins. The case was closed

without classification but the investigator

noted there was enough evidence to support

the allegations of physical abuse.

The Department has determined that the above

three acts constitute grounds to deny you a

license based on Section 409.175(8)(b )1,

Florida Statutes, in that they constitute

"an intentional or negligent act materially

affecting the health or safety of children

in the home or agency.

24. In presenting her case, Petitioner denied that she had

ever abused, neglected, or abandoned any child in her home for

which she was responsible. Ultimately, she has met her burden

of proving that she should be licensed to operate a foster home.

25. First, there is no competent evidence that Willie Cox

sexually molested Jennifer Smith in April 1993. Therefore, it

is irrelevant whether Willie Cox was Petitioner's boyfriend

and/or was living in Petitioner's home at that time.

26. Secondly, there is no competent evidence that

Petitioner physically abused Jennifer Smith in October 1994. In

fact, the only evidence regarding this allegation, other than

Petitioner's denial, was the admission into evidence of a

Florida Protective Service System abuse report, which is not

competent proof in this proceeding.

27. Petitioner bears the ultimate burden of persuasion in

this case. However, she is not required to prove that she did

not act in accordance with Respondent's allegations until

Respondent presents some competent evidence to support those

allegations. Admission of Florida Protective Service System

abuse reports into evidence, without more, is insufficient to

establish the factual content of the reports.

28. The investigators responsible for making the April 1993

and October 1994 abuse reports did not testify at hearing. Even

if one of the investigators had testified, neither report

contains any statement by Petitioner that constitutes an

admission of neglect or abuse or that is inconsistent with her

testimony.

29. Finally, the most persuasive evidence indicates that

Willie Cox did not physically abuse Terri Hayes in November

1993. There is no evidence to refute Terri Hayes' testimony

that Willie Cox never hit her.

30. Petitioner's testimony that Willie Cox never lived in

her home was not persuasive in the face of so much competent

evidence to the contrary. It does appear that Petitioner and

Willie Cox had a long-standing and often violent relationship

from at least 1992 through the fall of 1994. However,

Petitioner's lack of credibility on this point does not mean

that Petitioner is guilty of committing "an intentional or

negligent act materially affecting the health or safety of

children in her home." See Section 409.175(8)(b )1, Florida

Statutes.

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 [phone]

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

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.