18-005686 Department Of Children And Families vs. Dawndrell Martin And Mary Highsmith Status: Closed Recommended Order on Friday, March 22, 2019.

Summary: Department proved grounds for revoking Respondents' foster home license for verified abuse of foster child in the home.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND

FAMILIES,

Petitioner,

vs. Case No. 18 - 5686

DAWNDRELL MARTIN AND MARY

HIGHSMITH,

Respondents.

_______________________________/

RECOMMENDED ORDER

Pursu ant to notice, a final hearing was conducted in this

case on February 25, 2019, in Mar ianna, Florida, before

Lawrence P. Stevenson, a duly - designated Administrative Law

Judge of the Division of Administrative Hearings ("DOAH").

APPEARANCES

For Petitioner: Michael Andrew Lee, Esquire

Department of Children and

Families

2383 Phillips Road , Room 231

Tallahassee, Florida 32308

For Respondent s : Dawndrell Martin, pro se

Mary Highsmith, pro se

3767 Little Zion Road

Sneads, Florida 32460

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent s ' foster home

license should be revoked for violating Florida Administrative

Code R ule 65C - 13.030(3).

PRELIMINARY STATEMENT

Respondents were notified by letter dated September 28,

2018, that the Department of Children and Families (the

"Department") intended to revoke their foster home license. By

submission received by the Depart ment on October 19, 2018,

Respondents notified the Department of their intent to contest

the revocation and requested a formal administrative hearing.

On October 26, 2018, the case was forwarded to DOAH for the

assignment of an A dministrative L aw J udge an d the conduct of a

formal administrative hearing.

The Department's letter stated the following reasons for

the revocation of RespondentsÓ foster home license:

Your home was licensed as a foster home

through Lif e Management Center on

November 16, 2017. In July of 2018, the

Department of Children and Families received

allegations of abuse and conducted a child

institutional investigation regarding your

home, specifically case number 2018 - 612266.

The investigation closed on August 28, 2018

and was verified f or physical injury.

Ms. Dawndrell Martin was identified as the

Caregiver Responsible. As a component of

that investigation, the Child Protection

Team completed a medical exam on the foster

child in care and made positive findings for

physical abuse. Sin ce that time, the

Department is aware that criminal charges

have been brought against Ms. Martin.

The findings made by both the Department of

Children and Families and the Child

Protection Team are very concerning. As

licensed foster parents and as a co ndition

of your license, you both reviewed and

signed the Partnership Plan Agreement on

October 26, 2017. Specifically, per the

Agreement, you agreed to provide the

following:

4. Excellent parenting is a

reasonable expectation of caregivers.

Caregiver s will provide and DCF, CBC,

and agency staff will support

excellent parenting. This requires a

loving commitment to the child and the

child's safety and well - being,

appropriate supervision and positive

methods of discipline, encouragement

of the child's strengths, respect for

the child's individuality and likes

and dislikes, providing opportunities

to develop the child's interests and

skills, awareness of the impact of

trauma on behavior, equal

participation of the child in family

life, involvement of the child with

the community and a commitment to

enable the child to lead a normal

life.

The Department has determined that you have

breached the Partnership Plan Agreement and

have directly threatened the safety of the

children that were in your care. As s uch,

the Department can no longer assure the

safety of the children in your care and

intends to revoke your license. The

Department has determined that this

determination is appropriate based on Florida

Statutes and the following rules from Florida

Admini strative Code:

F.A.C. 65C - 13.030 Standards for

Licensed Out - of - Home Caregivers

(3) Discipline.

(a) Licensed out - of - home caregivers

shall discipline children with

kindness, consistency, and

understanding, and with the purpose of

helping the child deve lop

responsibility and self - control.

(b) Licensed out - of - home caregivers

shall use positive methods of

discipline. Acceptable methods of

discipline include: reinforcing

acceptable behavior, expressing verbal

disappointment of the child's

behavior, los s of privileges,

grounding, restricting the child to

the house or yard, sending the child

out of the room and away from the

family activity, and redirecting the

child's activity.

(c) Licensed out - of - home caregivers

shall not subject children to cruel,

s evere, or unusual forms of

discipline.

(d) Licensed out - of - home caregivers

shall not use corporal punishments of

any kind.

A Corrective Action Plan would not be an

appropriate or effective method to correct

the deficiencies that compromise the safety

and well - being of a child placed in your

home.

The case was originally scheduled for final hearing on

January 18, 2019, in Tallahassee. The late date and choice of

location were both due to the impacts of Hurricane Michael in

the Marianna area. The Depa rtmentÓs motion for continuance was

granted on January 9, 2019, and the case was rescheduled for

February 25, 2019, in Marianna. The case was convened and

completed on February 25, 2019.

At the hearing, the Department presented the testimony of

Daniel Hen ry, a Department child protective investigator;

Kimberly Dykes, an advanced registered nurse practitioner

(ÐARNPÑ) on the Child Protection Team of the Gulf Coast

ChildrenÓs Advocacy Center (the ÐCPTÑ); Angela Griffin, an

assistant team coordinator and fore nsic interviewer with the

CPT; Sergeant Cheree Edwards, child abuse investigator for the

Jackson County SheriffÓs Office; Jeanne Durden, a foster home

licensing specialist with Big Bend Community Based Care; and

Regina Pleas, safety program manager for the DepartmentÓs

Northwest Region. The Department's Exhibits 1 through 6 were

admitted into evidence.

Respondents presented the testimony of Precious Ingram, a

case manager for Anchorage ChildrenÓs Home in Jackson County;

and Kristy Hancock, a licensing sp ecialist with Life Management

Center of Northwest Florida. Based upon advice from counsel in

the pending criminal case against Ms. Martin, Respondents

declined to testify at this hearing and asserted their Fifth

Amendment right to avoid self - incrimination . RespondentsÓ

Exhibits 1 through 3 were admitted into evidence.

No Transcript of the hearing was ordered. Both parties

timely filed their Proposed Recommended Orders on March 7, 2019.

Both Proposed Recommended Orders have been carefully considered

du ring the preparation of this Recommended Order.

All references to Florida Statutes are to the 2017 version

unless indicated otherwise .

FINDING S OF FACT

1. The Department is the state agency responsible for

foster care licensing, pursuant to section 409.17 5, Florida

Statutes, and Florida Administrative Code C hapter 65C - 13.

2. Respondents are a mother, Mary Highsmith, and daughter,

Dawndrell Martin, who reside together and obtained a joint

license to provide foster care to children on November 16, 2017.

3. On July 16, 2018, the DepartmentÓs Florida Abuse

Hotline received an abuse report regarding B.H., a five - year - old

female , who had been previously removed from her parents due to

abuse, abandonment , or neglect and placed in the foster home of

Respondents i n November of 2017. The abuse report stated that

B.H. had bruising on her back, face, and on top of her head.

B.H. told the abuse reporter that ÐTTÑ had hit her with a brush

or comb. ÐTTÑ was B.H.Ós nickname for Ms. Martin.

4. Daniel Henry, a child pro tective investigator with the

Department, was assigned to investigate the abuse report. He

interviewed B.H., who told him that Ms. Martin had punished her

by hitting her with a comb, a switch, and a flip - flop and that

Ms. Highsmith had repeatedly Ðthumped Ñ her forehead with a flick

of her finger. Mr. Henry interviewed the reporter of the abuse.

He contacted local law enforcement to facilitate a joint

investigation, contacted the DepartmentÓs licensing staff, and

interviewed Respondents. Based on B.H.Ós statements, Mr. Henry

immediately referred the case to the CPT.

5. The CPT is an independent entity created by statute and

overseen by an interagency agreement between the Department of

Children and Families and the Department of Health. Among other

se rvices, the CPT performs assessments that include medical

evaluations, specialized clinical interviews, and forensic

interviews. See £ 39.303, Fla. Stat. In this case, B.H.Ós

physical injuries led the CPT to arrange a forensic interview

and a medical eva luation of the child.

6. Kimberly Dykes is an ARNP working for the CPT. She has

undergone specialized training in child maltreatment, including

the nature, origin, manifestations, and symptoms of abuse and

injuries inflicted upon minor children. Her tr aining included

recognizing the difference between accidental and intentional

injuries. Ms. Dykes performed a medical examination and

interviewed B.H. about the cause of her injuries.

7. Ms. Dykes concluded that B.H.Ós wounds were consistent

with inflict ed injury , and were consistent with the causation

described by the child as Ðhaving been repeatedly struck with a

comb and a switch and having been repeatedly thumped in the

forehead.Ñ

8. Ms. Dykes testified that she spoke with the

investigator for the J ackson County SheriffÓs Office, Sergeant

Cheree Edwards. Ms. Dykes stated that Sgt. Edwards provided her

with the explanations that Respondents had offered for B.H.Ós

injuries. Ms. Dykes testified that she was able to medically

rule out each of these exp lanations as lacking appropriate

medical and testimonial support for their causation. Ms. Dykes

further recommended that B.H. be removed from RespondentsÓ home

and placed in alternate custody.

9. Angela Griffin is a specialist with the CPT , who is

certif ied to provide specialized clinical interviews and

forensic interviews of minor children. Ms. Griffin conducted a

forensic interview of B.H. Ms. Griffin testified as to the

safeguards necessary to protect the integrity of the interview

process with a chi ld, such as building rapport, discussing the

difference between telling the truth and telling a lie, and

explaining the Ðrules of the roomÑ to the child, including the

fact that the interview will be recorded and that the child

should make it known if she does not understand a question.

Ms. Griffin stated that she employed all these safeguards during

her interview with B.H.

10. During her interview with Ms. Griffin, B.H. described

how her injuries were inflicted. This description was

consistent with the story B.H. told to the abuse reporter, to

Mr. Henry, and to Ms. Dykes. 1/ B.H. told Ms. Griffin that

Ms. Martin had hit her on the head, in the face, and on the back

with a comb, a switch, and a flip - flop , and that Ms. Highsmith

had thumped her forehead.

1 1. Upon concluding the forensic interview and medical

evaluation, Ms. Griffin and Ms. Dykes provided recommendations

for the care of B.H. They recommended that B.H. be removed

immediately from the home of Respondents. They further

recommended that any a nd all other children placed with

Respondents be removed , and that no further children be placed

with them. They recommended counseling for B.H.

12. After concluding his investigation and consulting with

the CPT, Mr. Henry verified the allegations of physical abuse by

Ms. Martin. He recommended that RespondentsÓ foster home

license be revoked and that no other children be allowed to

reside with them.

13. At the hearing, Sgt. Edwards testified as to the

investigation she conducted for the Jackson Coun ty SheriffÓs

Office. She stated that in cases of joint investigation by the

Department and law enforcement, the CPT is critical in allowing

a single point of contact with the minor victim. It is in the

best interest of the child to avoid multiple and red undant

interviews that could cause repeated trauma. Following the

joint investigation protocol, Sgt. Edwards did not conduct her

own interview of B.H. , bu t observed the recording of

Ms. GriffinÓs interview with B.H. Sgt. Edwards also reviewed

the notes m ade by Mr. Henry, the DepartmentÓs investigator.

14. Sgt. Edwards interviewed Respondents and took repeated

statements from them regarding possible origins of the injuries

to B.H. She allowed Respondents to provide any and all evidence

relevant to this m atter. Sgt. Edwards testified that she

contacted , or attempted to contact , every witness named by

Respondents, including the day care teachers, and reviewed every

piece of evidence presented by Respondents.

15. During her investigation, Sgt. Edwards disc overed a

hair comb at RespondentsÓ residence. A photograph of the comb

taken by law enforcement was presented as an exhibit in this

proceeding. The photo shows a long - handled ÐrattailÑ comb.

Sgt. Edwards determined this comb to match the item described by

B.H. as the implement used by Ms. Martin to hit her on the head.

16. Ms. Dykes testified that the comb showed in the

photograph could easily have been the cause of the injuries to

the top of B.H.Ós head.

17. Based on her independent investigation , Sgt. Edwards

found probable cause to file criminal charges against Ms. Martin

for inflicting injury on B.H. At the time of the hearing, the

criminal case was still pending.

18. At the heari ng, the Department presented

13 photographs, taken by Ms. Griff in, of B.H.Ós injuries. The

photos detail multiple sources of trauma and bruising to B.H.Ós

face, head, back, eyes, neck, and scalp. None of the wounds

appeared deep or serious, but did appear to be more severe than

the usual bumps and bruises a parent e xpects from an active

child. Ms. Dykes testified that the injuries in the photos were

entirely consistent with B.H.Ós statements that Ms. Martin

caused them by hitting her with a comb, a switch, and a flip -

flop.

19. Respondents did not testify. Throug h cross -

examination and argument, Respondents were able to put forward

some of their explanations for the injuries to B.H. They

contended both that B.H. is inclined to self - harm and that the

injuries must have been inflicted at Caverns Learning Center,

th e day care facility that reported the injuries to the Florida

Abuse Hotline. They contended that the child may have hit her

head on a dresser while bouncing on her bed. They stated that

B.H.Ós skin had been rubbed raw by a seat belt. Her scalp

injuries may have been caused by a harsh shampoo used to treat

for lice, or by self - pulling of her hair, or by undiagnosed

folliculitis. Ms. Highsmith theorized that the entire case was

fabricated by authorities who did not like the fact that black

foster parents were caring for white children.

20. Respondents argued that Mr. Henry did not pursue other

theories as to the cause of the injuries. For example, he took

employees of Caverns Learning Center at their word when they

told him B.H. was injured when she arri ved at the day care on

the morning of July 16, 2018. They also questioned why

approximately two hours passed between B.H.Ós arrival at the day

care and the call to the Florida Abuse Hotline.

21. Mr. Henry plausibly addressed both issues raised by

Respond ents. He testified that the Department bases its

investigations on the identity of the alleged perpetrator.

Because B.H. repeatedly and consistently identified Ms. Martin

as the person who inflicted the injuries, Mr. Henry saw no

reason to cast about for other suspects. Mr. Henry stated that

he did not find it unusual for a busy day care to take a couple

of hours to report to the abuse hotline.

22. Respondents did not themselves testify on the advice

of their criminal defense attorney. Respondents d id present the

testimony of their licensing specialist, Kristy Hancock, and a

ÐcourtesyÑ dependency case manager, Precious Ingram. 2/

23. Ms. Hancock testified that she was the instructor for

RespondentsÓ foster home licensing class. Respondents were

Ðv ery engagedÑ during the seven weeks of coursework and seemed

to understand the implication s of being foster parents.

Ms. Hancock stated that she had visited RespondentsÓ home and

all seemed well. 3/ Ms. Hancock also testified that she was aware

of Ðissues Ñ with Caverns Learning Center, but did not elaborate.

24. Ms. Ingram testified that Respondents were cooperative

with her when she made her monthly home visits. She observed

nothing that would indicate abuse or neglect. She never saw

marks on B.H. rese mbling those in the photographs introduced by

the Department. Ms. Ingram stated that she saw nothing out of

the ordinary in RespondentsÓ foster home and never had cause to

raise concerns about the care of the children there.

25. Jeanne Durden is employed by Big Bend Community Based

Care (ÐBBCBCÑ) and is in charge of BBCBCÓs licensing

responsibilities. BBCBC is a contractor retained by the

Department to provide foster care services in Circuits 2 and 14.

BBCBC manages foster care licensing for the cited j urisdictions.

26. Ms. Durden testified that it was her responsibility to

provide quality assurance for all foster care licensing

operations. BBCBC contracts with other entities to provide

front line case management, and Ms. Durden provides oversight

for those subcontractors.

27. Ms. Durden testified that she removed all of the minor

children from RespondentsÓ home immediately after reviewing the

findings of the child protective investigator and the CPT.

28. Ms. Durden also recommended immediate terminat ion and

revocation of RespondentsÓ foster home license. Ms. Durden

explained that her recommendation was due to the nature and

findings of the DepartmentÓs verified child protection abuse

report as well as the criminal charges filed against Ms. Martin.

S he noted that Department rules do not permit corporal

punishment of any kind for foster children, because of the

traumas these children have already experienced.

29. Ms. Durden did not believe that anything short of

revocation was legally appropriate. She opined that mitigation

was not possible based on the nature and cause of B.H.Ós

injuries.

30. Regina Pleas is safety program manager for the

DepartmentÓs Northwest Region. Among her duties is management

of the DepartmentÓs licensing operations. BBCB C has the

contractual responsibility to recruit, retain, and manage foster

homes , but the Department is ultimately responsible for all

decisions and maintains final approval for BBCBCÓs licensing

actions.

31. Ms. Pleas reviewed Ms. DurdenÓs recommendation of

revocation of RespondentÓs foster home license. After

considering the nature and cause of the injuries inflicted, the

consistency of B.H.Ós statements, and the analysis of the CPT,

Ms. Pleas concurred that revocation was necessary. In

considering the appropriateness of revocation, Ms. Pleas also

took into account that Respondents were now subject to a

verified abuse report, meaning that the Department could no

longer place minor children in their care.

32. Ms. Pleas drafted the letter notifying Respo ndents of

the DepartmentÓs decision to revoke their foster home license.

The letter, dated September 28, 2018, appropriately notified

Respondents of the DepartmentÓs intended action and of their due

process rights in challenging the DepartmentÓs prelimina ry

decision.

CONCLUSIONS OF LAW

33. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding pursuant to s ection 120.569 and 120.57(1), Florida

Statutes.

34. The Department is the agency charg ed with the

responsibility of licensing foster family homes in the S tate of

Florida. Section 409.175 reads in pertinent part:

(2) As used in this section, the term:

* * *

(f) ÐLicenseÑ means ÐlicenseÑ as defined in

s. 120.52(10). 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 li cense

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

proceed ing or court action initiated by the

department.

* * *

(9)(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.

35. Pursuant to the authority granted by section

409.175(5), the Department has adopted chapter 65C - 13, which

governs foster home licensing.

3 6 . R ule 65C - 13.030, titled ÐStandards for Licensed Out -

o f - Home Caregivers,Ñ 4/ provides in relevant part:

(3) Discipline.

(a) Licensed out - of - home caregivers shall

discipline children with kindness,

consistency, and understanding, and with the

purpos e of helping the child develop

responsibility and self - control.

(b) Licensed out - of - home caregivers shall

use positive methods of discipline.

Acceptable methods of discipline include:

reinforcing acceptable behavior, expressing

verbal disappointment of the childÓs

behavior, loss of privileges, grounding,

restricting the child to the house or yard,

sending the child out of the room and away

from the family activity, and redirecting the

childÓs activity.

(c) Licensed out - of - home caregivers shall

not sub ject children to cruel, severe, or

unusual forms of discipline.

(d) Licensed out - of - home caregivers shall

not use corporal punishments of any

kind . . . .

3 7 . R ule 65C - 13.035(4) provides as follows, in relevant

part:

(4) Administrative Action for Exi sting

Family Foster Homes.

(a) If licensing violations are found such

that the childÓs physical, mental, or

emotional health is or has been adversely

impacted as a result of the violation or is

in danger of being adversely impacted , the

licensing counsel or shall consult with his

or her supervisor and the childÓs case

manager for an immediate review of the

safety of any children in the home and a

call shall be made to the Abuse Hotline.

(b) If licensing violations are found which

do not pose an immediate threat to the

health, safety or welfare of the children,

the supervising agency shall prepare a

written corrective action plan to correct

the deficiencies. The plan shall be

developed by the supervising agency in

conjunction with the licensed out - of - home

caregivers and shall be approved by the

Regional Licensing Authority.

3 8 . The Department seeks revocation of RespondentsÓ foster

home license. As the party asserting the affirmative of an

issue before this administrative tribunal, the Department has

the burden of proof. Dep Ó t of Transp . v. J.W.C. Co . , 396 So. 2d

778 (Fla. 1st DCA 1981). In a typical professional licensure

case, the DepartmentÓs burden would be to show by clear and

convincing evidence that RespondentsÓ license should be revoked.

Fer ris v. Turlington , 510 So. 2d 292 (Fla. 1987).

3 9 . However, in accordance with the definition of

"license" contained in s ection 409.175(2)(f), the licensure

status previously awarded to Respondents is not a professional

license and does not create a prope rty right. Therefore, the

Department must establish facts which support its position by a

preponderance of the evidence rather than by the clear and

convincing standard normally imposed in professional licensure

cases. See DepÓt of Banking and Fin. v. Os borne Stern and Co. ,

670 So. 2d 932 (Fla. 1996).

40 . In the instant case, the Department demonstrated by a

preponderance of the evidence that the foster home license of

Respondents should be revoked. The DepartmentÓs own

investigation , as well as the fi ndings of the CPT and the

Jackson County SheriffÓs Office , established that B.H. was

abused in the home of Respondents and that the Department cannot

safely place children in RespondentsÓ home. Because the

violation involved adverse impacts to the childÓs physical,

mental, or emotional health, the lesser penalty of a written

corrective action plan was not appropriate.

4 1 . The undersigned acknowledges that Respondents were

hamstrung in their defense by their understandable decision not

to testify. Through argument, they were able to provide their

explanations for B.H.Ós injuries, but were not able to put on

evidence that might have made those explanations appear at least

plausible in light of the childÓs repeated statements accusing

Ms. Martin.

4 2 . Based on the DepartmentÓs verified abuse report for

inflicted injuries, the findings by the CPT, the results of the

criminal investigation by the Jackson County SheriffÓs Office,

and the repeated and consistent statements of B.H., the

DepartmentÓs decision to re voke the license of Respondents is

appropriate. The Department has satisfied its burden in this

matter.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered by the Department

of Chi ldren and Families revoking the foster home license of

Respondents Dawndrell Martin and Mary Highsmith.

DONE AND ENTERED this 2 2nd day of March , 2019 , in

Tallahassee, Leon County, Florida.

S

LAWRENCE P. STEVENSON

Admin istrative 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 Administrative Hearin gs

this 2 2nd day of March , 2019 .

ENDNOTE S

1/ Mr. Henry observed Ms. GriffinÓs interview with B.H. and

confirmed that B.H.Ós statements to Ms. Griffin were consistent

with her prior statements to him.

2/ The children placed with Respondents were from Holmes County.

Ms. Ingram, based in Jackson County, was assigned as a

ÐcourtesyÑ case manager to check on the children in the Jackson

County foster home.

3/ The Department conceded that the children in RespondentsÓ

home were not neglected and appeared t o be well cared for in

terms of hygiene, grooming, clothing, and nutrition.

4/ ÐLicensed Out - o f - Home CaregiverÑ means any person licensed

unde r section 409.175 to provide 24 - hour care, including foster

parents. Fla. Admin. Code R. 65C - 30.001(68).

COPIES FURNISHED:

Lacey Kantor, Esquire

Department of Children and Families

Building 2, Room 204Z

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

(eServed)

Michael Andrew Lee, Esquire

Department of Children and Families

Room 231

2383 Phillips R oad

Tallahassee, Florida 32308

(eServed)

Dawndrell Martin

Mary Highsmith

3767 Little Zion Road

Sneads, Florida 32460

(eServed)

Chad Poppell, Secretary

Department of Children and Families

Building 1, Room 202

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

John Jackson, General Counsel

Department of Children and Families

Building 2, Room 204F

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

(eServed)

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 the Final Order in this case.