02-000401 Gloria J. Smith vs. Department Of Children And Family Services
 Status: Closed
Recommended Order on Wednesday, July 24, 2002.


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Summary: Evidence presented did not establish that Petitioner has committed an intentional or negligent act materially affecting the health or safety of children in her home. Recommend granting Petitioner`s license renewal.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8GLORIA J. SMITH, )

12)

13Petitioner, )

15)

16vs. ) Case No. 02 - 0401

23)

24DEPARTMENT OF CHILDREN )

28AND FAMILY SERVICES, )

32)

33Respondent. )

35__________ ____________________)

37RECOMMENDED ORDER

39Pursuant to notice, a formal hearing was held in this case

50on May 30, 2002, in Ocala, Florida, before the Division of

61Administrative Hearings, by its designated Administrative Law

68Judge, Barbara J. Staros.

72APPEAR ANCES

74For Petitioners: S. Ray Gill, Esquire

80S. Ray Gill, P.A.

84613 Southeast Fort King Street

89Ocala, Florida 34471

92For Respondent: Ralph J. McMurphy, Esquire

98Department of Children

101and Family Services

1041601 West Gulf Atlantic Highway

109Wildwood, Florida 34785 - 8158

114STATEMENT OF THE ISSUE

118The issue in this proceeding is whether the Department of

128Children and Family Services should renew the foster care

137license of Gloria J. Smith.

142PRELIMINARY STATEMENT

144By lette r dated November 16, 2001, the Department of

154Children and Family Services (Department) advised Petitioner,

161Gloria J. Smith, that her home would not be relicensed as a

173foster home. The letter based this decision on a Florida Abuse

184Hotline Information Syste m report received by the Department on

194September 5, 2001, alleging threatened harm. The letter also

203informed Petitioner that there was a subsequent investigation by

212the Department which determined that there were indicators of

221threatened harm based on rep eated statements made by a former

232foster child. Additionally, the letter referenced an open

240investigation with law enforcement regarding the same

247allegations. Finally, the letter cites Section 409.175(8)(a)

254and (b), Florida Statutes, asserting that the D epartment may

264deny a license if there is an intentional or negligent act

275materially affecting the health or safety of children in the

285home. Based upon the investigation cited in the letter, the

295Department expressed concern that other foster children may b e

305harmed if placed in Petitioner's home.

311Petitioner disputed the allegations of the November 16,

3192001, letter and requested an administrative hearing. The

327Department forwarded the case to the Division of Administrative

336Hearings on or about February 4, 20 02. A formal hearing was

348scheduled for April 17, 2002. Respondent filed an unopposed

357Motion for Continuance which was granted. The hearing was

366rescheduled for May 30, 2002.

371At hearing, Petitioner testified on her own behalf.

379Petitioner's Exhibits 2 through 4 were admitted into evidence.

388Petitioner's Exhibit 1 was rejected. Respondent presented the

396testimony of one witness, Diana McKenzie. Respondent's Exhibits

4041 and 2 were admitted into evidence. 1/ Official recognition was

415taken of Chapter 65C - 13 , Florida Administrative Code.

424The hearing was not transcribed. The parties requested more

433than 10 days in which to file proposed recommended orders and

444that request was granted. However, neither party filed a

453proposed recommended order.

456FINDINGS OF FA CT

4601. Petitioner, Gloria J. Smith, is an elementary school

469teacher. She previously was employed by the Ocala Police

478Department as a reserve officer. Petitioner has been a foster

488parent for approximately three years. According to Diana

496McKenzie, the Dep artment's Acting Supervisor for relicensing,

504retention, and facilities, there were no allegations made

512against Petitioner prior to this incident.

5182. J.F. was a foster child of Petitioner's on two separate

529occasions. The first time, J.F. was placed wit h Petitioner, and

540was returned to her mother. The date of J.F.'s first placement

551with Petitioner is unclear from the record. J.F. returned to

561Petitioner for approximately two years and was returned to her

571mother again in May of 2001.

5773. In October o f 2000, Petitioner took J.F. to the Ocala

589Police Department regarding an allegation of possible abuse that

598occurred in the past. The record is unclear as to the time

610sequence when this occurred in relation to when J.F. was placed

621with Petitioner. In any event, Petitioner's taking J.F. to the

631Ocala Police Department was related to alleged events that did

641not occur during the time J.F. was in Petitioner's foster care.

6524. In September 2001, Petitioner received a call from the

662Department informing her that a n abuse allegation had been made

673and that the Department would be out to pick up her foster

685children. At the time, Petitioner had three foster children

694including J.F. Petitioner also has three children of her own

704including her son, J.S., who was approxim ately 14 years old in

716September 2001.

7185. Despite repeated efforts, she was not able to get

728information regarding the abuse allegation. No one from the

737Department came to her home to investigate the abuse allegation.

747Ocala Police came to her home but Petitioner was not at home at

760the time the police arrived.

7656. Petitioner took her son, J.S., to the Ocala Police

775Department for reasons she understood to be associated with the

785abuse allegation. However, she was not present during any

794interview of J.S. by the Ocala police.

8017. No other competent facts were established to support

810the allegations contained in the November 16, 2001, letter from

820the Department to Petitioner denying relicensure.

826CONCLUSIONS OF LAW

8298. The Division of Administrative Hearing s has

837jurisdiction over the parties to and subject matter of this

847proceeding. Section 120.57(1), Florida Statutes.

8529. The Department of Children and Family Services is the

862agency charged with the responsibility of licensing foster homes

871in the state of Florida. Section 409.175, Florida Statutes.

88010. Petitioner challenges the nonrenewal of her foster

888care license. In accordance with the definition of "license"

897contained in Section 409.175(2)(f), Florida Statutes, the

904licensure status previously award ed to Petitioner is not a

914professional license and does not create a property right.

923As the party asserting the affirmative of an issue before this

934administrative tribunal, Petitioner has the burden of proof.

942Florida Department of Transportation v. J. W.C. Company , 396

951So. 2d 778 (Fla. 1st DCA 1981). In this case, Petitioner has

963met her burden to prove entitlement to license renewal, absent

973any disqualifying event.

97611. In denying license renewal, the Department's

983November 16, 2001, letter to Petitioner relies on authority in

993Section 409.175(8), Florida Statutes, which reads in pertinent

1001part as follows:

1004(8)(a) The Department may deny, suspend,

1010or revoke a license.

1014(b) Any of the following actions by a home

1023or agency or its personnel is a ground for

1032denial, suspension, or revocation of a

1038license:

10391. An intentional or negligent act

1045materially affecting the health or safety

1051of children in the home or agency.

105812. In connection with the grounds for denial, Section

106739.202(2)(j), Florid a Statutes, allows the Division of

1075Administrative Hearings to have access to abuse reports for

1084purposes of any administrative challenge. However, the statute

1092does not provide authority for an Administrative Law Judge to

1102treat such reports as sufficient in themselves to support

1111findings of fact.

111413. The evidence presented did not establish that

1122Petitioner has committed an intentional or negligent act

1130materially affecting the health or safety of children or

1139potential children in her home.

1144RECOMMENDATION

1145Based upon the Findings of Fact and Conclusions of Law, it

1156is

1157RECOMMENDED:

1158That the Department of Children and Family Services enter a

1168final order granting Petitioner's license renewal.

1174DONE AND ENTERED this 24th day of July, 2002, in

1184Talla hassee, Leon County, Florida.

1189___________________________________

1190BARBARA J. STAROS

1193Administrative Law Judge

1196Division of Administrative Hearings

1200The DeSoto Building

12031230 Apalachee Parkway

1206T allahassee, Florida 32399 - 3060

1212(850) 488 - 9675 SUNCOM 278 - 9675

1220Fax Filing (850) 921 - 6847

1226www.doah.state.fl.us

1227Filed with the Clerk of the

1233Division of Administrative Hearings

1237this 24th day of July , 200 2.

1244ENDNOTE

12451/ The Department introduced the above referenced abuse report

1254into evidence as Respondent's Exhibit 1. See Section

1262120.569(1)(g), Florida Statutes. The alleged child victim did

1270not testify, and the Department's investigator(s) did not

1278t estify. The document contains hearsay within hearsay and is

1288not sufficient in itself to support a finding of fact as

1299contemplated by Section 120.57(1)(c), Florida Statutes.

1305Likewise, Respondent's Exhibit 2 is hearsay and is not

1314sufficient in itself to su pport a finding of fact as

1325contemplated by Section 120.57(1)(c), Florida Statutes.

1331COPIES FURNISHED:

1333Ralph J. McMurphy, Esquire

1337Department of Children

1340and Family Services

13431601 West Gulf Atlantic Highway

1348Wildwood, Florida 34785 - 8158

1353S. Ray Gill, Esquire

1357S. Ray Gill, P.A.

1361613 Southeast Fort King Street

1366Ocala, Florida 34471

1369Paul F. Flounlacker, Jr., Agency Clerk

1375Department of Children

1378and Family Services

1381Building 2, Room 204B

13851317 Win ewood Boulevard

1389Tallahassee, Florida 32399 - 0700

1394Josie Tomayo, General Counsel

1398Department of Children

1401and Family Services

14041317 Winewood Boulevard

1407Building 2, Room 204

1411Tallahassee, Florida 32399 - 0700

1416NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

1422All parties have the right to submit written exceptions within

143215 days from the date of this Recommended Order. Any exceptions

1443to this Recommended Order should be filed with the agency that

1454will issue th e Final Order in this case.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 10/22/2002
Proceedings: Final Order filed.
PDF:
Date: 10/16/2002
Proceedings: Agency Final Order
PDF:
Date: 07/24/2002
Proceedings: Recommended Order
PDF:
Date: 07/24/2002
Proceedings: Recommended Order issued (hearing held May 30, 2002) CASE CLOSED.
PDF:
Date: 07/24/2002
Proceedings: Recommended Order cover letter identifying hearing record referred to the Agency sent out.
Date: 05/30/2002
Proceedings: CASE STATUS: Hearing Held; see case file for applicable time frames.
PDF:
Date: 04/04/2002
Proceedings: Order Granting Continuance and Re-scheduling Hearing issued (hearing set for May 30, 2002; 10:15 a.m.; Ocala, FL).
PDF:
Date: 03/22/2002
Proceedings: Motion for Continuance (filed by Respondent via facsimile).
PDF:
Date: 02/28/2002
Proceedings: Order of Pre-hearing Instructions issued.
PDF:
Date: 02/28/2002
Proceedings: Notice of Hearing issued (hearing set for April 17, 2002; 10:15 a.m.; Ocala, FL).
PDF:
Date: 02/06/2002
Proceedings: Initial Order issued.
PDF:
Date: 02/04/2002
Proceedings: Denying License for Foster Home filed.
PDF:
Date: 02/04/2002
Proceedings: Petition for Administrative Hearing filed.
PDF:
Date: 02/04/2002
Proceedings: Notice (of Agency referral) filed.

Case Information

Judge:
BARBARA J. STAROS
Date Filed:
02/04/2002
Date Assignment:
02/06/2002
Last Docket Entry:
10/22/2002
Location:
Ocala, Florida
District:
Northern
Agency:
ADOPTED IN TOTO
 

Counsels

Related Florida Statute(s) (4):