01-003170 David L. Motes vs. Department Of Children And Family Services Status: Closed Settled and/or Dismissed prior to entry of RO/FO on Monday, October 7, 2002.

Summary: Petitioner`s foster care license revoked because he used physical force against two foster children.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DAVID L. MOTES, )

)

Petitioner, )

)

vs. ) Case No. 01 - 3170

)

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

A final hearing was conducted in this case on April 3,

2002, in Tallahassee, Florida, before Suzanne F. Hood,

Administrative Law Judge with the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: No Appearance

For Respondent: John R. Perry , Esquire

Department of Children and

Family Services

2639 North Monroe Street, Suite 252A

Tallahassee, Florida 32399 - 2949

STATEMENT OF THE ISSUE

The issue is wheth er Respondent should revoke Petitioner's

license to operate a foster care home.

PRELIMINARY STATEMENT

By letter dated June 19, 2001, Respondent Department of

Children and Family Services (Respondent) advised Petitioner

David L. Motes (Petitioner) that Res pondent intended to revoke

Petitioner's license to operate a foster home in Leon County,

Florida. The letter alleged that Petitioner had violated

Sections 409.175(8)(b)1. and 409.175(8)(b)2., Florida Statutes;

and Rules 65C - 13.010(1)(b)1.a., 65C - 13.010(1) (b)1.b.,

65C - 13.010(1)(b)5.a., 65C - 13.010(1)(c)1., 65C - 13.010(1)(b)5.m.,

Florida Administrative Code.

Petitioner filed a Petition for Administrative Hearing with

Respondent on July 19, 2001. Respondent referred this request

to the Division of Admi nistrative Hearings on August 14, 2001.

The parties filed a response to the Initial Order on

August 20, 2001. A Notice of Hearing scheduled the case for

hearing on October 29, 2001.

In a letter dated October 3, 2001, Petitioner indicated

that a forma l hearing might not be necessary. In a telephone

conference on October 11, 2001, the parties discussed whether

further administrative proceedings were required. At the

conclusion of the conference, the undersigned directed the

parties to file a joint sta tus report on or before October 18,

2001.

By letter dated October 19, 2001, Petitioner asserted that

Respondent had not contacted him as agreed during the telephone

conference. Respondent filed a response to this letter on

October 23, 2001.

On October 22, 2001, Respondent filed a Response to Order

of Prehearing Instructions.

On October 26, 2001, Respondent filed an Emergency Motion

to Reschedule Hearing. Petitioner filed a response in

opposition to this motion that same day. The undersigned

immediat ely issued an Order Granting Continuance.

Petitioner filed a letter dated November 21, 2001, advising

that he would not be available for hearing until April 2002.

According to Petitioner, he had plans to be out of town until

March 10, 2002.

On November 28 , 2001, the undersigned issued a second

Notice of Hearing. The second notice scheduled the hearing for

April 3, 2002.

Petitioner did not make an appearance at the hearing.

Respondent presented the testimony of five witnesses and offered

two exhibits, w hich were accepted as evidence.

A transcript of the proceeding was not filed with the

Division of Administrative Hearings. Respondent filed its

Proposed Recommended Order on April 12, 2002.

FINDINGS OF FACT

1. At all times material to this proceeding, Pe titioner

was licensed as a therapeutic foster parent. Respondent issued

this license to Petitioner through the Devereux Foundation,

which operates and maintains a network of foster homes to serve

dependent children in Respondent's custody.

2. Responden t places children in therapeutic foster when

they have been exposed to a severe degree of physical,

emotional, and/or sexual abuse, as well as extreme neglect

and/or abandonment. Such children require special care and

cannot be disciplined like children i n a stable nuclear family.

Therapeutic foster parents should never spank or use other

physical methods of punishment or behavior management on these

children.

3. Many therapeutic foster children have acute and

unresolved issues with control and authority . In such cases,

attempts by authority figures to assert rigid control over the

children will likely provoke emotionally charged oppositional

reactions by the children. This is especially true when the

children have not developed a relationship with the authority

figures. The likelihood that such oppositional reactions will

occur is much greater when authority figures attempt to impose

their will on the children with the use of physical force.

4. Children in foster care experience great difficulty in

learning to trust others. The inability to trust others is

reinforced when a near - stranger makes demands on therapeutic

foster children, then uses physical force to compel submission.

5. Children from dysfunctional families often experience

violence in the homes of their natural parents. The children

learn at an early age to respond with violence to stressful

situations. The use of physical force on foster children thus

generates a real and severe risk of physical injury to the

foster children, the fo ster parents, and innocent bystanders.

6. One purpose of therapeutic foster care is to help

children learn that violent behavior is not acceptable. When

foster parents use physical force to compel obedience, they

reinforce the lessons learned in the ho mes of their natural

parents at the expense of the lessons the foster care program

attempts to teach.

7. Therapeutic foster parents undergo special training

before they become licensed. The Model Approach to Parenting

and Partnership (MAPP) training th at all foster parents receive

places special emphasis on the emotional fragility of children

in foster care and the consequent need to avoid confrontation

with foster children. In other words, MAPP training teaches

foster parents not to engage in power st ruggles with their

charges.

8. MAPP training emphasizes the use of positive discipline

for the inevitable situations in which foster children test the

boundaries set by the foster parents. These methods include

reinforcing acceptable behavior, verbal d isapproval, loss of

privileges, and redirection. Any form of verbal abuse or

physical force is strictly prohibited.

9. Petitioner received all of the training described

above.

10. In March 2001, a sibling group of two sisters (S.M.1

and S.M.2) and a brother (D.M.) were living in a therapeutic

foster home operated by Brad and Sharon Carraway through the

Devereux Foundation. Mr. and Mrs. Carraway were licensed

therapeutic foster parents.

11. Respondent and the Devereux Foundation have a policy

that allows for substitute foster care when therapeutic foster

parents need some time away from their foster children. In that

case, Devereux arranges for another licensed therapeutic foster

home in its network to care for the foster children for a period

of time, usually a weekend. This arrangement is known as

respite foster care.

12. During March 2001, the Carraways needed a weekend away

from their foster children to take care of some family business.

At that time, Loretta Kelly was the foster care prog ram manager

for Devereux in the North Florida area. Ms. Kelly made

arrangements for Petitioner and his wife to take the children

during the weekend of March 23 - 25, 2001.

13. The children arrived in Petitioner's home late in the

afternoon of Friday, March 23, 2001. As S.M.1 and S.M.2 settled

into their room, Petitioner advised them that supper would be

served in five minutes. S.M.1 then announced that she was not

hungry and would not be going to supper. Petitioner replied

that S.M.1 could either go to t he table for supper or he would

be back in five minutes and make her go to the table.

14. Five minutes later, Petitioner returned to the

bedroom. He told S.M.1, who was sitting on the bed, to come in

to supper. When S.M.1 refused again, Petitioner grabb ed S.M.1

by the wrists and tried to drag her into the dining room. A

struggle ensued with S.M.1 yelling for Petitioner to let go.

During the struggle, S.M.1's wrist watch broke, leaving

scratches on her arm.

15. S.M.2 was in the hall. Hearing her sis ter call for

help, S.M.2 ran in to help S.M.1. S.M.2 pushed Petitioner away

from her sister. Petitioner then grabbed S.M.2 by the wrists

and struggled with her for over a minute. During the struggle,

S.M.2 slid down to a sitting position with her back a gainst the

wall. S.M.2 then used her feet in an attempt to break free from

Petitioner. The struggle left S.M.2 with a scar from a scratch

she received on her arm.

16. Petitioner finally gave up and called the girls'

therapist, Lori Farkas, to complain a bout the situation. S.M.2

heard Petitioner state that he wanted the girls out of his home.

17. The incident was reported to Respondent.

Subsequently, Respondent commenced a child protective

investigation into the allegations; the investigation was still

open on April 20, 2001.

18. Petitioner became angry when he learned what the

children told Respondent's investigators. He telephoned

Ms. Kelly on the afternoon of April 20, 2001. He accused the

children of lying and asserted that they should be punished. He

threatened to file battery charges against the children and have

them arrested if they did not change their story and "tell the

truth."

19. Next, Petitioner telephoned Ms. Carraway. He told

Ms. Carraway that she ought to be teaching the girls morals and

honesty. He accused the girls of lying. Petitioner informed

Ms. Carraway that he was going to consult an attorney and have

the girls arrested at school for assault and battery.

Petitioner told Ms. Carraway that he would be more believa ble in

light of the children's background.

20. S.M.1 was with Ms. Carraway during Petitioner's

telephone call. Ms. Carraway and S.M.1 wrote notes to each

other regarding Petitioner's comments during the telephone call.

Both girls were apprehensive for some time after this telephone

call about the possibility of being arrested.

21. Ms. Carraway called Ms. Kelly immediately after

talking to Petitioner. Ms. Kelly then called Petitioner to

instruct him not to make any further calls to the Carraway home.

CONCLUSIONS OF LAW

22. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding. Sections 120.569 and 120.57(1), Florida Statutes.

23. Section 409.175(2)(f), Florida Statutes, defines the

term license as follows:

(f) "License" means "license" as defined

in s. 120.52(9). A license under the

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 secti on 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 in itiated by the

department.

24. Section 409.175(8)(b), Florida Statutes, provides as

follows:

(b) Any of the following actions by a

[foster] home or agency or its personnel is

a ground for denial, suspension, or

revocation of a license:

1. An in tentional or negligent act

materially affecting the health or safety of

children in the home or agency.

2. A violation of the provisions of this

section or of licensing rules promulgated

pursuant to this section.

25. Rule 65C - 13.010(1)(b), Florida A dministrative Code,

provides as follows in relevant part:

(b) Family Care Activities.

1. Daily living tasks.

a. The substitute care parents are

expected to provide structure and daily

activities designed to promote the

individual physical, socia l, intellectual,

spiritual, and emotional development of the

children in their home.

b. The substitute parents should assist

the children in performing tasks and

developing skills which will promote their

independence and the ability to care for

themsel ves.

* * *

5. Discipline.

a. The substitute care parents must

discipline children with kindness,

consistency, and understanding, and with the

purpose of helping the child develop

responsibility with self - control.

* * *

c. Substitute care paren ts should use

positive methods of discipline, including

the following:

(I) Reinforcing acceptable behavior.

(II) Verbal disappointment of the child's

behavior.

(III) Loss of privileges.

(IV) Grounding, restricting the child to

the house or yard , or sending the child out

of the room and away from the family

activity; and

(V) Redirecting the child's activity,

for example, if a child is playing with a

sharp object take the object away, and

replace it with a safe toy.

d. The substitute care parents must not

allow children in care to be subjected to

verbal abuse, derogatory remarks about

themselves and family members or threats of

removal from the home.

* * *

m. The substitute must not threaten a

child with removal or with a report to

au thorities as punishment for behavior.

Threatening the child with removal plays

into the child's conviction that they are

doomed to a series of placements and

rejections. The counselor's first task is

to identify the child's specific behaviors

which are c ausing the substitute parent to

request the child's removal. Once problems

are identified the counselor along with the

substitute parents and child assess ways to

correct the problem. If problems are not

corrected and the substitute family

continues to r equest removal, a conference

should be held by the counselor with the

substitute family and child to discuss the

possibility of removal and replacement.

Involving the child in the planning may help

him feel he has some control of his life.

26. Petitione r's actions exposed S.M.1 and S.M.2 to

physical danger when he attempted to physically control their

behavior. In fact, his actions resulted in actual physical

injury to both girls.

27. Petitioner's wrestling match with the children failed

to teach the m that violence in the home is unacceptable.

Instead, the children learned the wrong message: that violence

is an appropriate method of dealing with conflict. They also

learned not to trust people in authority.

28. Petitioner's use of force against t he children

violated Sections 409.175(8)(b)1. and 409.175(8)(b)2., Florida

Statutes; and Rules 65C - 13.010(1)(b)1.a., 65C - 13.010(1)(b)1.b.,

65C - 13.010(1)(b)5.a., and 65C - 13.010(1)(b)5.c., Florida

Administrative Code. His actions constitute grounds for

revo cation under Section 409.175(8)(b), Florida Statutes.

29. After the struggle, one of the girls heard Petitioner

state that he wanted them out of his home. Later they were

aware of Petitioner's threats to have them arrested if they did

not change their st ory. Petitioner's threats violate Section

409.175(8)(b)2., Florida Statutes, and Rule 65C -

13.010(1)(b)5.m., Florida Administrative Code, and constitute

grounds to revoke Petitioner's therapeutic foster license.

RECOMMENDATION

Based on the foregoing Find ings of Fact and Conclusions of

Law, it is

RECOMMENDED:

That Respondent enter a final order revoking Petitioner's

therapeutic foster license.

DONE AND ENTERED this 22nd day of April, 2002, in

Tallahassee, Leon County, Florida.

_________________________ __________

SUZANNE F. HOOD

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, 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 22nd day of April, 2002.

COPIES FURNISHED :

David L. Motes

2023 Duneagle Lane

Tallahassee, Florida 32311

John R. Perry, Esquire

Department of Children and

Family Services

2639 North Monroe St reet, Suite 252A

Tallahassee, Florida 32399 - 2949

Peggy Sanford, Agency Clerk

Department of Children and

Family Services

1317 Winewood Boulevard

Building 2, Room 204B

Tallahassee, Florida 32399 - 0700

Josie Tomayo, General Counsel

Department of Childre n 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 the final order in this case.