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

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.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GLORIA J. SMITH, )

)

Petitioner, )

)

vs. ) Case No. 02 - 0401

)

DEPARTMENT OF CHILDREN )

AND FAMILY SERVICES, )

)

Respondent. )

__________ ____________________)

RECOMMENDED ORDER

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

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

Administrative Hearings, by its designated Administrative Law

Judge, Barbara J. Staros.

APPEAR ANCES

For Petitioners: S. Ray Gill, Esquire

S. Ray Gill, P.A.

613 Southeast Fort King Street

Ocala, Florida 34471

For Respondent: Ralph J. McMurphy, Esquire

Department of Children

and Family Services

1601 West Gulf Atlantic Highway

Wildwood, Florida 34785 - 8158

STATEMENT OF THE ISSUE

The issue in this proceeding is whether the Department of

Children and Family Services should renew the foster care

license of Gloria J. Smith.

PRELIMINARY STATEMENT

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

Children and Family Services (Department) advised Petitioner,

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

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

Hotline Information Syste m report received by the Department on

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

informed Petitioner that there was a subsequent investigation by

the Department which determined that there were indicators of

threatened harm based on rep eated statements made by a former

foster child. Additionally, the letter referenced an open

investigation with law enforcement regarding the same

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

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

deny a license if there is an intentional or negligent act

materially affecting the health or safety of children in the

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

Department expressed concern that other foster children may b e

harmed if placed in Petitioner's home.

Petitioner disputed the allegations of the November 16,

2001, letter and requested an administrative hearing. The

Department forwarded the case to the Division of Administrative

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

scheduled for April 17, 2002. Respondent filed an unopposed

Motion for Continuance which was granted. The hearing was

rescheduled for May 30, 2002.

At hearing, Petitioner testified on her own behalf.

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

Petitioner's Exhibit 1 was rejected. Respondent presented the

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

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

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

The hearing was not transcribed. The parties requested more

than 10 days in which to file proposed recommended orders and

that request was granted. However, neither party filed a

proposed recommended order.

FINDINGS OF FA CT

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

teacher. She previously was employed by the Ocala Police

Department as a reserve officer. Petitioner has been a foster

parent for approximately three years. According to Diana

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

retention, and facilities, there were no allegations made

against Petitioner prior to this incident.

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

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

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

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

Petitioner for approximately two years and was returned to her

mother again in May of 2001.

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

Police Department regarding an allegation of possible abuse that

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

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

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

Ocala Police Department was related to alleged events that did

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

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

Department informing her that a n abuse allegation had been made

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

children. At the time, Petitioner had three foster children

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

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

September 2001.

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

information regarding the abuse allegation. No one from the

Department came to her home to investigate the abuse allegation.

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

the time the police arrived.

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

Department for reasons she understood to be associated with the

abuse allegation. However, she was not present during any

interview of J.S. by the Ocala police.

7. No other competent facts were established to support

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

the Department to Petitioner denying relicensure.

CONCLUSIONS OF LAW

8. The Division of Administrative Hearing s has

jurisdiction over the parties to and subject matter of this

proceeding. Section 120.57(1), Florida Statutes.

9. The Department of Children and Family Services is the

agency charged with the responsibility of licensing foster homes

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

10. Petitioner challenges the nonrenewal of her foster

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

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

licensure status previously award ed to Petitioner is not a

professional license and does not create a property right.

As the party asserting the affirmative of an issue before this

administrative tribunal, Petitioner has the burden of proof.

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

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

met her burden to prove entitlement to license renewal, absent

any disqualifying event.

11. In denying license renewal, the Department's

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

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

part as follows:

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

or revoke a license.

(b) Any of the following actions by a home

or agency or its personnel is a ground for

denial, suspension, or revocation of a

license:

1. An intentional or negligent act

materially affecting the health or safety

of children in the home or agency.

12. In connection with the grounds for denial, Section

39.202(2)(j), Florid a Statutes, allows the Division of

Administrative Hearings to have access to abuse reports for

purposes of any administrative challenge. However, the statute

does not provide authority for an Administrative Law Judge to

treat such reports as sufficient in themselves to support

findings of fact.

13. The evidence presented did not establish that

Petitioner has committed an intentional or negligent act

materially affecting the health or safety of children or

potential children in her home.

RECOMMENDATION

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

is

RECOMMENDED:

That the Department of Children and Family Services enter a

final order granting Petitioner's license renewal.

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

Talla hassee, Leon County, Florida.

___________________________________

BARBARA J. STAROS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

T allahassee, 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 24th day of July , 200 2.

ENDNOTE

1/ The Department introduced the above referenced abuse report

into evidence as Respondent's Exhibit 1. See Section

120.569(1)(g), Florida Statutes. The alleged child victim did

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

t estify. The document contains hearsay within hearsay and is

not sufficient in itself to support a finding of fact as

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

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

sufficient in itself to su pport a finding of fact as

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

COPIES FURNISHED:

Ralph J. McMurphy, Esquire

Department of Children

and Family Services

1601 West Gulf Atlantic Highway

Wildwood, Florida 34785 - 8158

S. Ray Gill, Esquire

S. Ray Gill, P.A.

613 Southeast Fort King Street

Ocala, Florida 34471

Paul F. Flounlacker, Jr., Agency Clerk

Department of Children

and Family Services

Building 2, Room 204B

1317 Win ewood Boulevard

Tallahassee, Florida 32399 - 0700

Josie Tomayo, General Counsel

Department of Children

and Family Services

1317 Winewood Boulevard

Building 2, Room 204

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 th e Final Order in this case.