5D07-2062 Haines v. DCF

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State: Florida

Court: Florida Fifth District Court

Docket No: 5D07-2062

Case Date: 04/07/2008

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2008

BARBARA HAINES, Appellant, v. DEPARTMENT OF C HILDREN AND FAMILIES, Appellee. ________________________________/ Opinion filed April 11, 2007 Administrative Appeal from the Department of Children and Families. Barbara Haines, Palm Bay, pro se. Richard Cato, Deputy Chief Legal Counsel, Department of Children and Families, Orlando, for Appellee. Case No. 5D07-2062

PLEUS, J. Barbara Haines, pro se, appeals a final order of the Department of Children and Families ["DCF"] revoking her foster care license for allegedly striking her foster child. We conclude that the administrative law judge ["ALJ"] properly applied the preponderance of evidence standard and that competent, substantial evidence supported his conclusion. He found that Haines did not strike the child. Accordingly, we reverse.

DCF sent Haines a letter informing her of its decision to revoke her foster care license. DCF explained that it had investigated an abuse report and verified findings that Haines' foster child, J.U., suffered beatings, bruises and welts while in her care. If true, this would be a violation of Florida Administrative Code Rule 65C-13.010(1)(b)5f's proscription that foster parents "must not use corporal punishment of any kind." Haines timely requested an administrative hearing pursuant to section 120.569(2), Florida Statutes. At the administrative hearing, DCF and Haines each presented the testimony of several witnesses. After hearing all this testimony, the ALJ issued a recommended order concluding that Haines' license revocation be rescinded. The ALJ made detailed fact findings regarding the evidence presented. The ALJ concluded, in pertinent part, that the two witnesses who allegedly saw Haines beating J.U. did not testify at the hearing and their statements to police were "not persuasive." Instead, the ALJ found Haines, the only one present at the alleged incident who did testify at the hearing, offered "the most credible testimony presented." Significantly, the ALJ concluded that because foster care licenses do not create property rights like professional licenses, the preponderance of evidence standard applied, rather than the clear and convincing evidence standard that applied in professional license revocation cases. We agree. DCF entered a final order revoking Haines' license because it disagreed with the ALJ's legal conclusion that the preponderance of evidence standard applied. Instead, DCF concluded the ALJ was bound to uphold the agency's initial revocation decision if DCF presented competent, substantial evidence supporting revocation. DCF

interpreted this standard as follows: "The competent substantial evidence standard

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requires the Department to establish that its determination to revoke petitioner's foster care license was a reasonable decision supported by some direct evidence in the record." In addition, DCF rejected the ALJ's fact finding that the nurse practitioner's observation of linear bruising consistent with abuse did not comport with photos that showed no linear bruising. DCF instead found that the nurse practitioner's testimony provided "the only competent evidence of the nature of the bruising" on the child. Accordingly, DCF concluded that it had "presented competent substantial evidence to support the stated reason for revoking [Haines'] foster care license." On appeal, Haines argues that there was no competent, substantial evidence to support DCF's decision to revoke her license. DCF counters that the ALJ used the wrong standard of proof to decide the facts. Instead of using the preponderance of evidence standard, DCF argues that the appropriate standard was the competent, substantial evidence standard. Based on this standard, DCF argues that there was competent, substantial evidence to support its decision to revoke Haines' license. The Appropriate Evidentiary Standard of Proof Section 409.175, Florida Statutes (2006), discusses the licensure process for foster care licenses. Section 409.175(9) allows DCF to revoke a foster care license for enumerated reasons, including acts "materially affecting the health or safety of children" and violations of licensing statutes and rules. Section 409.175(6)(d) gives foster care licensees an opportunity to challenge the revocation decision in an administrative hearing under Chapter 120 of the Florida Statutes. Section 120.60(5) states: No revocation, suspension, annulment, or withdrawal of any license is lawful unless, prior to the entry of a final order, the agency has served, by personal service or certified mail, an administrative complaint which affords

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reasonable notice to the licensee of facts or conduct which warrant the intended action and unless the licensee has been given an adequate opportunity to request a proceeding pursuant to ss. 120.569 and 120.57. (Emphasis added). The hearing in the instant case was governed by section 120.57 because it involved disputed issues of material fact. Section 120.57(1)(j) states: Findings of fact shall be based upon a preponderance of the evidence, except in penal or licensure disciplinary proceedings or except as otherwise provided by statute, and shall be based exclusively on the evidence of record and on matters officially recognized. (Emphasis added). Clearly, the proceeding below was a "penal or licensure disciplinary proceeding" because Haines contested DCF's decision to revoke her license. In professional licensure revocation proceedings, the clear and convincing evidence standard of proof applies. See Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987). However, section 409.175(2)(d) states: "License" means "license" as defined in s. 120.52(9). A license under this section is issued to a family foster home or other facility and is not a professional license of any individual. Receipt of a license under this section shall not create a property right in the recipient. A license under this act is a public trust and a privilege, and is not an entitlement. This privilege must guide the finder of fact or trier of law at any administrative proceeding or court action initiated by the department. DCF argues that the legislature intended the last sentence of section 409.175(2)(d) to mean that foster care license revocation hearings should be governed by a lesser standard than the clear and convincing evidence standard established in Ferris. The ALJ concluded that the preponderance of evidence standard applied. DCF overruled the ALJ's legal conclusion, finding that the competent, substantial evidence standard applied.

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Section 120.57(1)(l) prescribes an agenc y's authority to overrule an ALJ's conclusions of law as follows: The agency in its final order may reject or modify the conclusions of law over which it has substantive jurisdiction and interpretation of administrative rules over which it has substantive jurisdiction. When rejecting or modifying such conclusion of law or interpretation of administrative rule, the agency must state with particularity its reasons for rejecting or modifying such conclusion of law or interpretation of administrative rule and must make a finding that its substituted conclusion of law or interpretation of administrative rule is as or more reasonable than that which was rejected or modified. (Emphasis added). DCF offered several reasons for its interpretation. First, DCF found that the evidentiary standard in administrative hearings concerning foster care license revocation should be no greater than the standard in administrative hearings concerning professional license application, which it asserts is the competent, substantial evidence standard. This assertion is incorrect because section 120.60(3) entitles professional license applicants to a section 120.57 hearing to resolve disputed issues of fact. As previously noted, section 120.57(1)(j) states that the preponderance of evidence standard applies in those hearings. DCF relies on Department of Banking and Finance v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996), in support of its argument. In Osborne, the court stated: It is well-established that a factual finding by an administrative agency will not be disturbed on appeal if it is supported by "substantial evidence." Nelson v. State ex rel. Quigg, 156 Fla. 189, 191, 23 So. 2d 136 (1945), cert. denied, 327 U.S. 790, 66 S.Ct. 809, 90 L.Ed. 1016 (1946); see also

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