01-003632 Marji Lecompte vs. Department Of Children And Family Services Status: Closed Recommended Order on Wednesday, April 10, 2002.

Summary: Petitioner filed 12 separate abuse hotline reports, naming her ex-husband as suspected abuser, over a relatively short period of time, many of which were determined by the Department as "no indicators/unfounded." Fined $1,000.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARJI LECOMPTE, )

)

Petitioner, )

)

vs. ) Case No. 01 - 3632

)

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings

by its designated Administrative Law Judge, Fred L. Buckine,

held a formal hearing in the above - styled case on January 24,

2002, in Viera, Florida.

APPEARANCES

For Petitioner: Marji LeCompt e, pro se

2684 Pepper Avenue

Melbourne, Florida 32935

For Respondent: Eric D. Dunlap, Esquire

Department of Children and

Family Services

400 West Robinson Street, Suite S - 1106

Orlan do, Florida 32801 - 1782

STATEMENT OF THE ISSUE

Whether Petitioner knowingly and willfully made a false

report of abuse of a child, W.D., on January 29, 2001, in

violation of Section 39.206, Florida Statutes, and if so, what

penalty is appropriate.

P RELIMINARY STATEMENT

On August 24, 2001, Respondent, Department of Children and

Family Services (DCF), noticed Petitioner, Marji Lecompte, of

its intention to impose a $1,000.00 fine pursuant to Section

39.206, Florida Statutes, for Petitioner's know ingly and

willingly filing a false child abuse report with DCF's abuse

hotline on January 29, 2001.

This matter was referred to the Division of Administrative

Hearings on September 14, 2001, along with Petitioner's request

for an Administrative Hearin g.

After several continuances, a final hearing was held on

January 24, 2001, at Viera, Florida.

At the final hearing Petitioner testified on her own

behalf, presented the testimonies of Jamie Blazer, David Bazer,

and Beverly Lecompte, and introd uced two exhibits (P1 - 2) into

evidence. Respondent called Petitioner as a witness and

presented the testimonies of John E. Grinwis, Kathleen Hansen,

both of the Melbourne Police Department, Robert Kortvawi and

Andrew Evans, both DCF employees, and introdu ced three exhibits

(R1 - 3) into evidence.

The Transcript of the hearing was filed on February 27,

2002. The parties' request for twenty days to submit their

respective proposed recommended orders was granted. On

February 24, 2002, Respondent filed a motion to supplement the

record with late filed exhibits that was granted.

Respondent and Petitioner, on February 26 and 27, 2002,

respectively, filed their Proposed Recommended Orders, and they

have been considered in the preparation of this Recomme nded

Order.

FINDINGS OF FACT

Based upon observation of the witnesses and their demeanor

while testifying, the documentary materials received in

evidence, and the entire record compiled herein, the following

relevant and material facts are found.

1. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

case. Section 120.57, Florida Statutes, and Rule 28 - 106.201,

Florida Administrative Code.

2. Under Subsections 39.201 - 39.206 and 39.301 - 39.307,

Florida Statutes (2001), the Department of Children and Family

Services is the State Agency responsible for receiving reports

of child abuse and protective investigations thereof.

3. Petitioner, mother of W.D., on January 29, 2001, when

her son was visiting with her family, observed what she

suspected to be abuse treatment by the father when he paddled

him on Thursday, January 28, 2001. Petitioner called the

Melbourne Police Department and reported the incident.

4. Officer Grinwis, was the first l aw enforcement officer

to arrive on the scene but did not write a report because the

incident did not occur in Melbourne.

5. Officer Grinwis recalled that while on patrol on

January 29, 2001, he received a signal "52" (battery) call on

his radio and went to Petitioner's home.

6. During his interview of Petitioner, Officer Grinwis

recalled Petitioner advising him that her son came home with

"marks" on his bottom and she was concerned that he was either

being abused or sexually assaulted, or both.

7. Of ficer Grinwis saw no evidence of marking by a belt or

instruments that looked like a pattern of use of a paddle on the

child's bottom. From his observation of the child's bottom, he

was not alarmed or suspicious to believe that a sexual assault,

abuse, or something to that effect had occurred. Without

interviewing the child, Officer Grinwis concluded that the

signal "52" complaint to which he responded was unfounded.

8. Officer Grinwis recalled informing Petitioner to call

the Department of Children and Family Services and to call the

Palm Bay Police Department.

9. On January 30, 2001, Officer Hansen, Melbourne Police

Department, arrived at Petitioner's home in the company of

Robert Kortvawi, DCF's investigator. As did her fellow officer

and for the s ame reason, Officer Hansen did not write a report

on her observations and involvement in the interview of the

child.

10. Testifying from memory, Officer Hansen recalled

observing the child along with Robert Kortvawi and she saw

nothing on the child's bot tom she considered "bruising or

anything." She thought she observed a little pinkness or

rubbing on his bottom, but did not recall any "bruising or

anything." In her opinion allegations of "bruising and welts"

were unfounded.

11. Robert Kortvawi center ed his investigation on the

reported allegations of "excessive corporal punishment, bruises

and welts." Petitioner informed Mr. Kortvawi that she had

reason to believe there was bruising on the child's buttocks

from being physically abused by his father a nd that he had

spanked him with a paddle on Thursday night. He was upset that

the child was participating in karate when he should not have

been participating in karate.

12. From his personal interview with the child,

Mr. Kortvawi was informed that the father had, in fact, spanked

the child with a paddle on Thursday night (January 28, 2001).

13. From his personal observation of the child,

Mr. Kortvawi saw "some slightly red -- pinkish chafing; no bruises

or marks or anything -- nothing that would have in dicated any type

of physical abuse."

14. The photographs taken by Mr. Kortvawi of the child's

bottom and condition were sent to the Palm Bay Police

Department, and were not offered in evidence during the hearing.

15. After his investigation, Mr. Kortva wi concluded that

no medication was necessary, and no child protection team

referral was warranted, and closed his report with a final

determination of "no further action necessary."

16. Mr. Kortvawi opined that the abuse call made by

Petitioner on Janua ry 29, 2001, was different and he believed it

to be false because of three primary factors: nineteen hotline

abuse calls had been made regarding this family during the

marriage; the statements regarding her ex - husband made by

Petitioner during his intervi ew with her; and Petitioner's

twelve separate hotline abuse calls made from 1995 through 2001.

17. Of the twelve individual abuse hotline calls made by

Petitioner, three were closed with "some indicators"; two sexual

abuse (child on child) that were turn ed over to the local police

department with no action by DCF and seven closed with no

indicators found.

18. There have been on - going differences of opinion

between Petitioner and her ex - husband both during the time of

their marriage, during the divorce proceeding, and currently

during Petitioner's exercise of her visitation privileges.

19. Petitioner's mother and daughter admitted making

individual hotline abuse calls during the marriage of Petitioner

to W.D.'s father. Those abuse calls were made prim arily during

the time when the two families, children the husband brought

into the marriage household and children the wife brought into

the marriage household, were living together.

20. Both mother and daughter saw W.D.'s buttocks on

January 29, 2001, a nd were concerned with the "severity of the

beating" administered by the father.

21. Petitioner's testimony centered on her concern for the

welfare of her son and her uncertainty about the father's

"excessive corporal punishment" administered to the six - year - old

child.

22. Petitioner further testified that she made the

January 29, 2001, hotline abuse phone call at the suggestion of

Officer Grinwis, Melbourne Police Department, because of the

marks on W.D's bottom, and denies that her suspected abuse was

false when willingly and knowingly made.

23. Respondent has shown, by a preponderance of evidence,

that Petitioner knowingly and willfully made the following

hotline abuse report of suspected abuse of her son by the father

who had paddled the child a da y before, when she knew of should

have known the suspected abuse was, in fact, false, to wit:

Yes, I just had the local police out here

at my house, and they told me because of the

incident not actually happening in my city,

that I should contact you all and the city

where the suspected abuse occurred.

The incident probably occurred in Palm

Bay.

Okay. My son has a large bruise about

four inches long and about three inches wide

on his buttocks. I picked him up Friday

night from his father, and he d id not bathe

last night. So, tonight when he went to

bathe - - he's six years old - - I asked him

was he clean enough, or something, and had

me go make sure, that's when I saw the

bruise.

He said by (he was hit) a paddle. By his

father. I asked him wh en and why, and asked

him what happened. The last time I saw him

was on Wednesday and he did not have

anything like that.

Yeah, supposedly, he was kicking and

teaching some children -- my husband had him

in Ti - Kwon - Do. My son was teaching other

kids at times he was not supposed to, and, I

guess, he gave him a good old beating, but,

he told the officer he only hit him once,

and, the bruise is very large.

(DCF reporter) My name is Andrew, my

number is 0180. I am not familiar how they

work, but I will c ontact Palm Bay.

They actually came out, I asked the

officer to look at him . . ., and I am going

to take a picture.

(DCF) Right, that is the best thing you

can do right now.

Well, the thing is, there was some

incidences of him being hit (on his

b uttocks) about two years ago. . . . Yeah,

and they were considered unfounded. They

were considered on the back of his leg, like

it could have happened in climbing or

falling.

CONCLUSIONS OF LAW

24. The Division of Administrative Hearings has

jur isdiction over the parties and subject matter in the

proceeding. Subsection 120.57(1), Florida Statutes, and Section

39.206, Florida Statutes.

25. In its Notice of Intent Pursuant to Section 39.206,

Florida Statutes, and Order Imposing an Administra tive Fine, DCF

cites the following authorities: Section 39.206, Florida

Statutes, and Rule 28 - 106.201, Florida Administrative Code.

39.206 Administrative fines for false

report of abuse, abandonment, or neglect of a

child; civil damages. --

(1) In a ddition to any other penalty

authorized by this section, chapter 120, or

other law, the department may impose a fine,

not to exceed $10,000 for each violation,

upon a person who knowingly and willfully

makes a false report of abuse, abandonment,

or neglect of a child, or a person who

counsels another to make a false report.

(2) If the department alleges that a

person has filed a false report with the

central abuse hotline, the department must

file a Notice of Intent which alleges the

name, age, and addr ess of the individual, the

facts constituting the allegation that the

individual made a false report, and the

administrative fine the department proposes

to impose on the person. Each time that a

false report is made constitutes a separate

violation.

( 3) The Notice of Intent to impose the

administrative fine must be served upon the

person alleged to have filed the false report

and the person's legal counsel, if any. Such

Notice of Intent must be given by certified

mail, return receipt requested.

(4 ) Any person alleged to have filed the

false report is entitled to an administrative

hearing, pursuant to chapter 120, before the

imposition of the fine becomes final. The

person must request an administrative hearing

within 60 days after receipt of the Notice of

Intent by filing a request with the

department. Failure to request an

administrative hearing within 60 days after

receipt of the Notice of Intent constitutes a

waiver of the right to a hearing, making the

administrative fine final.

(5) At th e administrative hearing, the

department must prove by a preponderance of

the evidence that the person filed a false

report with the central abuse hotline. The

administrative hearing officer shall advise

any person against whom a fine may be imposed

of th at person's right to be represented by

counsel at the administrative hearing.

(6) In determining the amount of fine to

be imposed, if any, the following factors

shall be considered:

(a) The gravity of the violation,

including the probability that s erious

physical or emotional harm to any person will

result or has resulted, the severity of the

actual or potential harm, and the nature of

the false allegation.

(b) Actions taken by the false reporter to

retract the false report as an element of

miti gation, or, in contrast, to encourage an

investigation on the basis of false

information.

(c) Any previous false reports filed by

the same individual.

(7) A decision by the department,

following the administrative hearing, to

impose an administrativ e fine for filing a

false report constitutes final agency action

within the meaning of chapter 120. Notice of

the imposition of the administrative fine

must be served upon the person and the

person's legal counsel, by certified mail,

return receipt reques ted, and must state that

the person may seek judicial review of the

administrative fine pursuant to s. 120.68 .

(8) All amounts collected under this

section shall be deposited into an

appropriate trust fund of the department.

(9) A person who is determined to have

filed a false report of abuse, abandonment,

or neglect i s not entitled to

confidentiality. Subsequent to the

conclusion of all administrative or other

judicial proceedings concerning the filing of

a false report, the name of the false

reporter and the nature of the false report

shall be made public, pursuant t o s.

119.01 (1). Such information shall be

admissible in any civil or cr iminal

proceeding.

(10) A person who knowingly and willfully

makes a false report of abuse, abandonment,

or neglect of a child, or a person who

counsels another to make a false report may

be civilly liable for damages suffered,

including reasonable att orney fees and costs,

as a result of the filing of the false

report. If the name of the person who filed

the false report or counseled another to do

so has not been disclosed under subsection(9)

the department as custodian of the records

may be named as a party in the suit until the

dependency court determines in a written

order upon an in camera inspection of the

records and report that there is a reasonable

basis for believing that the report was false

and that the identity of the reporter may be

disclo sed for the purpose of proceeding with

a lawsuit for civil damages resulting from

the filing of the false report. The alleged

perpetrator may submit witness affidavits to

assist the court in making this initial

determination.

(11) Any person making a report who is

acting in good faith is immune from any

liability under this section and shall

continue to be entitled to have the

confidentiality of their identity maintained.

26. The determinative issue in this case is whether the

abuse report call was false, in fact, when made on January 29,

2001. If not, further inquiry is not necessary.

27. The party asserting the affirmative of an issue before

an administrative tribune has the burden of proof. Florida

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

778 (Fla. 1st DCA 1981). DCF must prove the allegations that

are contained in its Notice of Intent Letter dated August 24,

2001, to Petitioner.

28. In this case, there is a preponderance of evidence to

sustain the initial issue that the abuse report was "false" when

the time made by Petitioner. Petitioner's assertion that her

report of "suspected abuse" regarding her child was made only

after the suggestion by the police officer on the scene is not

credible.

29. The evid ence is clear that Petitioner knew W.D.'s

father paddled him the day before the she made the report. The

evidence is clear that paddling by the father left marks on

W.D's buttocks for longer than 24 hours, and this was not the

first paddling incident by t he father on the child. In the

past, Petitioner had made not less than twelve suspected abuse

report alleging the father abused this child. For the report in

question, neither Petitioner nor the DCF investigator considered

the "suspected abuse marks" wer e of such severity that a medical

examination was necessary to confirm Petitioner's suspicion of

excessive corporal punishment. Petitioner made no attempt to

retract her report.

30. Thus, considering the evidence most favorable to

Petitioner, the report ing of the marks on W.D.'s buttocks on

January 29, 2001, as "suspected abuse" by the father was false

when made. The terms suspect and false are not terms of art,

but are terms of common meaning and understanding. The term,

"suspect" is to surmise to be true or probable, (The American

Heritage Dictionary, page 1296). The term, "false" is contrary

to fact or truth; without grounds, (The American Heritage

Dictionary, page 473).

31. In Aurigemma v. State of Florida , 801 So. 2d 982, 985

(4th DCA 2001), a c ase of conviction for false reporting of an

non - existing crime, the Court held:

To be guilty of false reporting of a non -

existence crime, one must willfully impart,

convey, or cause to be imparted or conveyed

. . . false information or reports

concerning the alleged commission of a

crime, knowing such information or report is

false, in that no such crime has actually

been committed.

32. Petitioner saw marks on the buttocks of her son.

Without consultation with medical personnel to confirm her

suspici on of "severe corporal punishment," Petitioner called the

local police. At the suggestion of law enforcement, Petitioner

then called DCF's hotline and reported her suspicions

identifying her ex - husband as the abuser. Prior to making the

hotline abuse cal l in question, Petitioner had made twelve other

hot line abuse calls identifying her ex - husband as the abusive

parent in each instant. Petitioner was very familiar with the

normal course of action to be taken by the DCF having filed 12

abuse reports in th e past. On January 29, 2001, when Petitioner

made her abuse report the evidence is clear that Petitioner's

statement, bruise four inches long and three inches wide on

W.D.'s buttocks, to DCF's abuse hotline operator were knowingly

false when made.

RECOMME NDATION

Based upon the foregoing, it is hereby

RECOMMENDED

That the Department of Children and Family Services enter a

final order, pursuant to Section 39.206, Florida Statutes,

imposing an Administrative Fine against Petitioner for knowingly

and will fully making a false hotline abuse report on January 29,

2001.

DONE AND ENTERED this 10th day of April, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

FRED L. BUCKINE

Administrative Law Judge

Division of Administrative Hear ings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 10th day of April, 2002.

COPIES FURNISHED :

Eric D. Dunlap, Esquire

Department of Children and

Family Services

400 West Robinson Street

Suite S - 1106

Orlando, Florida 32801 - 1782

Marji LeCompte

2684 Pepper Avenue

Melbourne, Florida 32935

Josie Tomayo, General Counsel

Departm ent of Children

and Family Services

1317 Winewood Boulevard

Building 2, Room 204

Tallahassee, Florida 32399 - 0700

Peggy Sanford, Agency Clerk

Department of Children

and Family Services

1317 Winewood Boulevard

Building 2, Room 204B

Tallahassee, Flori da 32399 - 0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit 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 Fin al Order in this case.