17-004170 Department Of Children And Families vs. Brandi Spiers Status: Closed Recommended Order on Friday, February 2, 2018.

Summary: The Department did not prove that Respondent called in false reports to the hotline.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND

FAMILIES ,

Petitioner,

vs. Case No. 17 - 4170

BRANDI SPIERS ,

Respondent.

_______________________________/

RECOMMENDED ORDER

An administrative hearing was conducted in this case on

November 6 , 2017, in Marianna , Florida, before James H.

Peterson, III, Administrative Law Judge with the Division of

Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Brandi Spiers , pro se

6601 Northwest Camp Head Road

Altha, Florida 32421

For Respondent: Camille Larson, Esquire

Michael Andrew Lee, Esquire

Department of Children and Families

2383 Phillips Road , Room 231

Tallahassee, Florida 32308

STATEMENT OF ISSUE S

The issue s are whether Respondent made false reports to the

Florida Abuse Hotline in violation of s ection 39.206, Florida

Statutes 1/ ; and, if so, what is the appropriate penalty .

PRELIMINARY STATEMENT

By letter dated March 30, 2017 , the Department of Children

and Families ( Petitioner or the Department) notified Respondent

that the Department intended to impose an administrative fine

against Resp ondent for making false reports of abuse, neglect ,

or abandonment regarding RespondentÓs daughter, E.W.

Thereafter, the Department issued a document dated April 28,

2017, entitled ÐNotice of Intent Pursuant to § 39.206, Florida

Statutes, and Order Imposing a n Administrative FineÑ

(Administrative Complaint) , which imposed an administrative fine

in the amount of $5,000 for the alleged false reports, and

advised Respondent that the fine would become final unless

Respondent requested an administrative hearing within 60 days

from recei pt of the Administrative Complaint .

Respondent timely requested an administrative hearing .

O n July 21, 2017, the Department referred this matter to DOAH ,

and this case was originally scheduled for an administrative

hearing to be held September 12, 2017 . The administrative

hearing was continued due to the pot ential impact of Hurricane

Irma and rescheduled for November 6, 2017 .

At the hearing, the Department presented the testimony of

Holly Cummings, a Department child protective investigator

s upervisor an d Department r epresentative; Amy Glass, E.W.Ós

kindergarten teacher; Sheila Ferguson, a Department senior child

protective i nvestigator; Angela Griffin, a child protection team

s pecialist with the Gulf Coast ChildrenÓs Advocacy Center ; Daniel

Henry, a Department child protective i nvestigator; and Loretta

Worley, E.W.Ós s tep m other. PetitionerÓs Exhibits P - 1, P - 2, P - 5

through P - 12 , P - 14, P - 17 , and P - 1 8 were received into evidence at

the hearing , and P - 19 was also admitted into evidence , a copy of

which was filed after the hearing. Respondent testified on her

own behalf and RespondentÓs Exhibits R - 1 through R - 3 were

received in evidence. The parties were ordered to provide copies

of the ir respective recordings ( P - 10 and R - 3 ) to each other on or

before November 1 6 , 2017. Rulings on hearsay were pres erved as

to all of the evidence .

The proceedings were recorded and a transcript was ordered.

The parties were advised that their respective proposed

r ecommended o rders would b e due 10 days from the day the

t ranscript was filed . The two - volume Transcript was filed on

December 7, 2017. The Department timely filed its Proposed

Recommended Order on December 15 , 2017, and it has been

considered in preparation of this Recommended Order. Respon dent

did not file a proposed recommended order.

FINDINGS OF FACT

1. The Department is the State agency responsible for

managing the Florida abuse hotline and investigating allegations

of abuse, abando nment, and neglect of children.

2. Respondent is the biological m other of E.W., a minor

child.

3. Respondent called the Florida abuse hotline on

August 14, 2014, and reported that the father of E.W., Derwin

Worley , was physically abusing E.W. and exp osing her to drunken

behaviors.

4. In response to the call, t he Department generated

Intake Report number 2014 - 213532 - 01 (First Case) , which contains

the following allegation narrative:

The father spanks [E.W.] and leaves bruises.

The father closes and locks the door when he

spanks [E.W.]. The father may be using his

hand or whatever he can pick up when he

spanks [E.W.]. Two days ago, four bruises

were observed on [E.W.Ós] but t that were

caused by the father. T he bruises were red.

[E.W.] also has bruises on her legs that

were explained to have been caused by tubing

down the river. It is not believed that the

injuries match the explanation. The bruises

are small and greenish. [E.W.] also has a

bruise under her eye that goes from one side

to the other. It was explained that the

bruise was from a mosquito bite. The

explanation does not match the injuries.

The father drank Saturday or Sunday night

and law enforcement had to be called to the

home. When [E.W.] pees in her diaper, the

father lets her sit around in the diaper.

It is unknown how long she had been in the

diaper. The father curses around [E.W.].

[E.W.] curses because the father curses

around her. The mother was allowing the

father to babysit more and more, because she

doesnÓt trust babysitters. The father will

not give [E.W.] back to the mo ther. He has

kept [E.W.] from her for one night. The

mother has full custody. The mother was

trying to move in with he[r] grandmother.

The father does not work. He gets

disability income. The mother does not

believe in spanking a child of [E.W.Ós] ag e.

5. I nvestigation of the First Case was assigned to

Department Child Protective I nvestigator Sh eila Ferguson .

6. During her investigation, Investigator Ferguson found

that there had been ongoing custody disputes over E.W. between

Respondent and Mr. Worley , and that t here were apparently times

that Respondent needed assistance in getting E.W. back from

Mr. Worley.

7. According to Investigator Ferguson , custody was

RespondentÓs primary motivation for making the allegations

again s t Mr. Worley .

8. Investigator Ferguson testified that, during her

investigation in August of 2014 , although Respondent claimed that

she had photos of E.W.Ós bruises, including injuries to E.W.Ós

eye and buttock s , Respondent delayed for over two months in

providing any photographs, and when she did, Respondent only

provided photos of E.W.Ós legs.

9. According to Investigator Ferguson, the photos only

showed bruises on E.W.Ós legs and shins, which are common

childhood injuries and not indicative of abuse.

10. At the time of the August 2014 allegations, Respondent

and E.W. were living in the home of Mr. Worley and Loretta

Worley , his wife, who was E.W.Ós stepmother.

11. Investigator Ferguson said that when she questioned

Respondent about the delay in showing the photos , Respondent

explai ned that she delayed because she was afraid that the

Worleys would put her out of their home. Investigator Ferguson

felt that RespondentÓs explanation of delay did not make any

sense.

12. Inspector Ferguson reported that she examined the child

for marks and bruises and fully investigated the home and care

given to E.W. by the Worley s and found no reason to question the

childÓs safety. According to Inspector Ferguson, she observed a

very loving and appropriate relationship between Mr. Worley

and E.W.

13. Because of purported lack of evidence to support

RespondentÓs allegations , and a belief that Respondent did not

produce clear facts or timelines and was motivated by a custody

dispute, Inspector Ferguson felt that the First Case was a false

report . Inspector FergusonÓs supervisor, Holly Cummings , agreed.

14. However, b ecause the First Case was th e first report

called in by Respondent, Inspector Ferguson only warned

Respondent against making false reports and cl osed the case as

ÐNo Indicators . Ñ A ccording to the DepartmentÓs internal

operating procedures manual, Ðno indicatorsÑ means there was no

e vidence to support the allegations. 2 /

15. On August 27, 2015, Respondent was involved in another

call made to the hotline regarding Mr. Worley and E.W . The

second report was ass igned Intake Report number 2015 - 229587 - 01

( Second C ase) . The reporter who made the call in the Second

Case identified herself as Respondent Ós friend and asked that

the case not to be assigned to Inspector Ferguson . Respondent

was in the background during the call at the location where the

call originated .

16. The allegation narrative in the intake report from the

Second Case states:

The father is an alcoholic. The father

drinks alcohol to the point of intoxication

every day. When the father drinks, he

becomes aggressive and belligerent. Law

enforcement has b een called out to the home

several times. When the father drinks he

slurs his words and can barely talk on the

phone. There are pictures of finger prints

on the legs of [E.W.]. The pictures also

depict a hand print to the inside thigh of

[E.W.]. The pi ctures were taken about a

month ago. It is unknown how the injuries

were sustained. There are pictures of

[E.W.] being held by her uncle. The uncle

is a registered sex offender. There are no

indications that the uncle has ever been

le ft alone with [E.W .] or has been sexually

abused by him. The mother and father do not

get along. The mother temporarily signed

over custody to the father but now the

father refuses to allow the mother to have

custody of [E.W.]. The mother is taking the

father to court on 09 - 30 - 2015.

17. Th e S econd C ase was also investigated by Inspector

Ferguson , who once again found that the evidence did not support

the allegations. In addition, t he Second C ase was assigned to

the Child Protection Team , a subcontractor of the Gulf Coast

ChildrenÓs Advocacy Center affiliated with the Florida

Department of HealthÓs ChildrenÓs Medical Centers. T he Child

Protection Team is a separate entity from the Department and its

employees are independent from Department personnel.

18. Inspector Ferguson again suspected false reporting

because cu stody was still at issue and Inspector Ferguson did

not believe that Respondent produced evidence to support the

allegations. However, as in the First Case, instead of

concluding that the report was false, the Second C ase was also

closed with a conclusion of ÐNo Indicators.Ñ

19. On January 19, 2017, Respondent made a nother call to

the Florida abuse h otline and reported that Mr. Worley had

sexually abused E.W. The intake r eport from that call was

assigned I ntake Report N umber 2017 - 018546 - 01 ( Third Case) . T he

allegation narrative in the Intake R eport from the Third Case

states:

The father has been touching [E.W.Ós] vagina

and buttocks when she gets up in the morning

and while she is asleep. When [E.W.] takes a

bath she cries. [E.W.] has been playing with

herself. It was reported that [E.W.] learned

this behavior from her father. [E.W.] does

not feel safe in the fatherÓs home.

Three weeks ago, [E.W.] fell and hit a bed or

dresser after jumping up and down on a

mattress. She sustained a bruise on her

head. The bruise looks like a handprint.

She was taken to an emergency room. She had

bruises on her body in the past.

The father has back and heart problems.

20. An additional , related call came into t he hotline on

February 12 , 2017 , and was assigned Intake Report number 2017 -

044 728 - 01 (Fourth Case) . The allegation na rrative from the

Fourth CaseÓs I ntake R eport states:

The father has been sexually abusing [E.W.].

The father touches her private area while she

sleeps. [E.W.] has been scratches [sic] her

private area a lot lately, it is believed

this is from the father sexually abusing her.

[E.W. ] Ós private area are [sic] red. The

mother is aware the fathe r sexually abusing

[E.W.] and is allowing her to go back to the

fatherÓs house today, 02/12/2017.

21. The Fourth Case was based on the same allegations as

the Third Case, but was reported by a Jackson County SheriffÓ s

Office deputy after the SheriffÓs office had received notice of

RespondentÓs allegations of sexual abuse against Mr. Worley . Law

e nforcement officials are mandatory reporters . 3 /

22 . The Fourth Case was eventuall y closed because the Third

Case , based on the same allegation s , was already opened .

23. Investigation of the Third Case was assigned to

Department Child Protective I nvestigator Daniel Henry.

24. Given the nature of the allegations, Investigator

Henry responded Ðimmediately , Ñ which, according to the

DepartmentÓs protocol, requires in vestigation within four hours.

25. Investigator Henry arrived at Mr. WorleyÓs home to

investigate the allegations within four hours of the call , and,

b ased upon his meeting with Mr. Worley and E.W. , Investigator

Henry concluded that E.W. was not in danger. According to

Investigator Henry, interactions between E.W. and her father

were very Ðcomfortable and freeÑ and the child did not seem

afra id of her father in the least.

26. A llegations of sexual abuse, especially when made

agains t a parent, are considered severe in nature and taken ve ry

seriously by the Department. Because of this, the Department

once again referred E.W. t o the Child Protection Team for a

Ð forensic interview .Ñ

27. Angela Griffin with the Child Protecti on Team

conducted the forensic interview of E.W. According to

Ms. Griffin, a forensic interview is Ða legally - sound interview,

non - leading.Ñ From the interview, Ms. Griffin concluded that

E.W. had not been abused by Mr. Worley. Ms. Griffin testified

that she found E.W. to be very forthcoming and truthful with no

hesitation in her statements. She recalled asking E.W. about

anyone touching her inappropriately and no disclosures were made.

Ms. Griffin reported that she saw no evidence of sexual abuse of

E.W. According to Ms. Griffin , after observing E.W. with

Mr. Worley, she had no concerns. She reported that E.W. an d

Mr. Worley appeared to be bonded with a loving and appropriate

father - daughter relationship.

28. Ms. GriffinÓs interview with E.W. was recorded and

offered into evidence at the hearing . Although the recording

was delivered to the undersigned at the hearing, ruling on the

evidentiary value of that recording was reserved . After the

hearing, the undersigned reviewed the recorded interview. Based

u pon that review, and considering the context and manner in

which the recording was offered into evidence, it is found th at

the recording is non - corroborative hearsay 4/ that does not

s upport a finding that Respondent made false accusations or a

false report against Mr. Worley. 5/

29. E.W.Ós kindergarten teacher, Amy Glass, who has had

daily contact with E.W. in her kindergarten class , is of the

opinion that E.W. is a well - cared for child and is not concerned

that E.W. has been abused . She described E.W.Ós father and

stepmother as loving and appropriate caregivers.

30. Ms. Glass believes that E.W. is the type of child that

would tell h er if she was being abused. According to Ms. Glass,

E.W. has never told her that she has been abuse d by her f ather

or s tep m other.

31. While Ms. Glass further testified about statements

made by E.W. concerning Respondent, those statements , and any

other statements attributed to E.W., are hearsay and were not

considered.

32. E.W.Ós stepmother, Loretta Worley, also testified.

Ms. WorleyÓs testimony confirmed that there have been ongoing

disputes between Respondent and Mr. Worley re garding custody of

E.W. Ms. Worley testified that she and Mr. Worley provide a

loving home for E. W., where E.W. is well cared for. She said

that neither she nor Mr. Worley spank E.W. Ms. Worley also

testified that RespondentÓs accusations against Mr. Worley were

false and motivated by Re spondentÓs desire to gain custody of

E.W. Ms. Worley further testified that Respondent has been

ordered to pay child support to Mr. Worley for E.W., and that

Respondent is over $4,000 behind in those payment s . Respondent

confirmed that she is behind on child support payments.

33. On the other hand, Ms. WorleyÓs testimony provided

support for RespondentÓs allegations regarding Mr. WorleyÓ s

drinking . Ms. Worley confirmed that law enforcement has been

called to their home on a number of occasions , both before and

after 2014. Ms. Worley testified that law enforcement had been

called a couple of times while Respondent was living with them

for six to eight months in 2014 , when Mr. Worley would get angry

with Res pondent while he and Respondent were bickering back and

forth. Ms. Worley also testified that law enforcement had been

called Ðthree or four times , maybeÑ since 2014, because of

Mr. WorleyÓs drunkenness. According to Ms. Worley :

Yeah. I mean, IÓm not for sure how many - -

but I know it ainÓt been like sheÓs claiming;

that theyÓre out there every single day. Her

daddy does not drink every single day.

34. Ms. WorleyÓs testimony regarding Mr. WorleyÓ s

drunkenness is credited and inconsistent to d epartmental

investigative findings of Ðno indicatorsÑ in the first two

cases.

35. Ms. Worley also offered testimony about things that

E.W. allegedly told her that Respondent had said . That

evidence , however, was not considered because it is hearsay , is

not corroborative of other non - hearsay evidence, and is not

otherwise reliable.

36. Notably, w hile it is found that the video recording of

Ms. GriffinÓs interview of E.W. offered by the Department is

non - corroborative hearsay as to the DepartmentÓs case, the video

provides statements from E.W. that are contrary to Ms. WorleyÓs

assertion that Mr. Worley do es not spank E.W. When asked

whet her she gets along with everybody in the house, E.W. state d

during the recorded int erview, Ð Daddy get me in trouble .Ñ When

asked what happens when s he gets in trouble, E.W. replied ,

Ð He pop my butt.Ñ When asked what her daddy pops her butt with,

E.W. responded , ÐWith his hand.Ñ When asked does something

happen to her butt when he pops her with his hand, E.W. stated ,

ÐWhen I be bad, he pops me.Ñ When further asked whether

something happens to her butt when he pops her, E.W. sh ook her

head from side to side, and Ms. Griffin state d , ÐNo?Ñ in

confirmation of E.W.Ó s head gesture. When asked if something

else happen s when he pops her, E.W. changed the subject.

37. Aside from being hearsay that should not be considered

because it does not corroborate any competent evidence , even if

the video of E.W.Ós Ðforensic interviewÑ is taken into account,

it does not support a finding that RespondentÓs reports were

false, and does not disprove R espondentÓs allegation that

Mr. Worley was sexually abusing E.W.

38. Contrary to the Depa rtmentÓs findings of Ðno

indicators,Ñ the evidence adduced at the hearing provide d

support for RespondentÓs allegations regarding Mr. WorleyÓs

drinking behavior , as well as for alleged bruises and E.WÓs

contact with a sex offender while in Mr. WorleyÓs custody . In

addition, although the Department made an issue of the timing of

RespondentÓs presentation of photographic evidence in support of

her allegations, Respondent provided photographs of bruises to

E.W.Ós legs and a photograph of Mr. WorleyÓs broth er, a

convicted sex offender, holding E.W. These photos were

presented by Respondent to the Department prior to the heari ng,

as well as at the hearing. In fact, during the time period of

one of Inspector FergusonÓs investigations , Respondent went to

the DepartmentÓs local office and attempted to present the

photographs, but Department personnel involved in the

investigation were too busy to see her.

39. Respondent also presented a compact disk that

purportedly has a recording of E.W. making statements about

sexual abuse by her father. That recording, however, is

unintelligible and is otherwise non - corroborative hearsay .

40. The fact s that Respondent and Mr. Worley were having

ongoing custody disputes and that Resp ondent was behind on child

support payments raise suspicions about RespondentÓs motive in

calling in the reports. Those s uspicions, however, are not more

persuasive than the evidence supporting the first two calls to

the hotline. The DepartmentÓ s failure to acknowledge that

evidence in its investigations , instead find ing Ðno indicators , Ñ

undermines the DepartmentÓs preliminary determinations and the

reliability of its case against Respondent . And, while the

evidence does not prove that E.W. was subjected to sexual abuse,

the DepartmentÓs submissions were insufficient to support a

finding that E.W. was not sexual ly abuse d.

41. In sum, the Department did not prove that Respondent

called in false reports to the hotline.

CONCLUSIONS OF LAW

42. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding pursuant to section 120.57(1), Florida Statutes

(2017) .

43. The Department is the state agency responsible for

receiving and investigating reports of abuse, abandonment , and

neglect for FloridaÓs children and is empowered to bring

administrative action against those making false reports.

44. A Ðfalse rep ort , Ñ a s defined by s ection 39.01 (27) ,

Florida Statutes , i s:

A report of abuse, neglect, or abandonment

of a child to the central abuse hotline,

which report is maliciously made for the

purpose of:

(a) Harassing, embarrassing, or harming

another person;

(b) Personal financial gain for the

reporting person;

(c) Ac quiring custody of a child; or

(d) Personal benefit for the reporting

person in any other private dispute involving

a child.

§ 39.01, Fla. Stat. 6/

45. In an administrative action alleging false reporting,

the Department must prove by a Ðpreponderance of the evidenceÑ

that a false report was made . § 39.206(5), Fla. Stat.

46. ÐA preponderance of the evidence is Òthe greater

weight of the evidence,Ó [citation omitted] or evidence that

Òmore than notÓ tends to prove a certain proposition.Ñ Gross v.

Lyons , 763 So. 2d 276, 280 n.1 (Fla. 2000) .

47. While the Department submitted some evidence of

financial and custodial motive on the part of Respondent, the

evidence , as outlined in the Findings of Fact, above, was

insufficient to prove , by a preponderance , that Respondent made

false reports to the Florida Abuse Hotline in violation of

s ection 39.206 .

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that a final order be entered dismissing

the Administrative Complaint .

DONE AND ENTERED this 2nd day of February , 201 8 , in

Tallahassee, Leon County, Florida.

S

JAMES H. PETERSON, III

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Ad ministrative Hearings

t his 2nd day of February , 2018 .

ENDNOTES

1/ Unless otherwise indicated, a ll cited references to the

Florida Statutes are to the current ver sion s , which have not

substantively changed since the facts, circumstances, and

allegations that are the subject matter of this case.

2 / The citation for that Departmen tal internal operating

procedure is: CFOP 1 70 - 5, p. 22 - 1.

3 / See § 39 .201(d)6 . , Fla. Stat.

4/ Ð Hearsay evidence [in administrative actions under chapter

120 of the Florida Administrative Code] may be used for the

purpose of supplementing or explaining other evidence, but it

shall not be sufficient in itself to support a finding unless it

would be admissible over obj ection in civil actions. Ñ

§ 120.57(1)(c) .

5/ H earsay reports of statements by children may be admitted as

direct evidence under the hearsay exceptions created by s ections

90.803(23) and 90.803(8), Florida Statutes . However, in this

case, n either exception applies. During the hearing, Petitioner

did not invoke the hearsay exception created by s ection

90.803(23) and failed to establish the predicate s for admission

of hearsay statements that it requires. In addition, the

Ðpublic recordsÑ exception to hearsay found in section 90.803(8)

is not applicable to reports of E.W.Ós statements in this

proceeding. For a thorough analysis , equally applicable in this

case, rejecting both exceptions , see Administrative Law Judge

John NewtonÓs discussion in Dep Ó t Child . & Fam . Servs. v. G.D.

and R.D. , Case No. 09 - 6712 , slip op. at 16 - 24 (Fla. DOAH Sept.

28, 2010 ), adopted in toto , Rendition No. DCF - 11 - 025 - FO (Fla.

DCF Feb 1, 2011).

6 / Consistent with the statutory criteria, t he Department has

also promulgate d Florida Administrative Code Rule 65C - 29.010,

which states, in substantive part :

(1) When a child protective investigator

suspects that a false report has been made,

the investigator shall advise the reporter

of the potential administrative fines, civil

and criminal penalties associated with the

filing of a false report.

(2) In determining whether a report has

been filed maliciously, the Department shall

consider the following factors:

(a) There are no indicators of abuse,

neglect or abandonment as alleged in the

rep ort.

(b) The reporter has made contradictory or

inconsistent statements when questioned

about how the reported information was

obtained.

(c) Prior allegations made by this reporter

have been determined to be patently

unfounded or to have no indicators of abuse,

ne glect or abandonment.

(d) There is credible evidence that the

reporter has a history of disputes or

seeking retaliation against the alleged

perpetrator or other family members.

(e) There is a history of unresolved

custody issues between the reporter and the

allege d perpetrator or other family members.

COPIES FURNISHED :

Brandi Spiers

6601 Northwest Camp Head Road

Altha, Florida 32421

Camille Larson, Esquire

Michael Andrew Lee, Esquire

Department of Children and Families

2383 Phillips Road, Room 231

Tallahassee, Florida 32308

(eServed)

Lacey Kantor , Agency Clerk

Department of Children and Families

Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

(eServed)

John Jackson , Acting General Counsel

Department of Children and Families

Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

(eServed)

Mike Carroll, Secretary

Department of Children and Families

Building 1, Room 202

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

(eServed)

NOTICE OF RIGHT T O 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.