Carpenter, on January 29, 1981. The parties were represented by: APPEARANCES
For Petitioner: Mr. Jack Schnabel
For Respondent: Jeffrey B. Morris, Esquire
This matter arose on the petition of John Michael Schnabel (John or Petitioner) challenging Respondent's order transferring him from the Duval House Treatment Program to the Dozier School for Boys in Marianna. Petitioner, at his request, was represented by his father, Mr. Jack Schnabel.
John Michael Schnabel was born on December 13, 1962. He was adjudicated delinquent and committed to the custody of Respondent by Court Order (4th Judicial Circuit) dated July 24, 1980. The order specified an indeterminate period of commitment, not to extend beyond Petitioner's nineteenth birthday.
Petitioner was initially placed in the Duval House, a minimum security residential treatment facility for delinquent children. However, as a result of difficulties he encountered at Duval House, the facility supervisor recommended his transfer. Following a transfer hearing, Petitioner was committed to the Dozier School for Boys. This is the only facility available which is more restrictive than the Duval House. The transfer hearing was held on November 6, 1980, pursuant to Department of Health and Rehabilitative Services Rule 10H-
9.05. The Department Hearing Officer found as follows:
"1. He has, since his arrival at Duval House on July 30, 1980, absconded on three occasions.
"2. He has steadfastly refused to
become an active participant in the program."
Petitioner does not contest the finding that he absconded from the Duval House three times, but asserts there were mitigating circumstances for the second and third runaways. These circumstances involve Petitioner's temporary loss of certain privileges following a peer allegation that he used alcohol at a Halloween party.
An investigation conducted by Respondent ultimately revealed that no alcohol was used at this party. Although John was wrongly accused by his peers, Respondent's actions were appropriate in that an investigation was conducted which cleared John of these charges and would apparently have resulted in restoration of his privileges. There was no evidence to indicate the severity of his treatment pending the investigation justified his running away.
Petitioner challenges the second finding, particularly the phrase "steadfastly refused". The testimony established that John' s family ins been actively involved in his treatment and that John is now making excellent progress toward completing the high school equivalency program at the Dozier School.
However, testimony of the Duval House counselors established that at times during his stay in this facility, Petitioner was unresponsive to the education and therapy programs. Thus, three runaways in a three month period coupled with this lack of responsiveness support Respondent's finding that John refused to become an active participant in the Duval House program. Although a different word might have more accurately characterized this refusal, use of the word "steadfastly" was not inappropriate.
CONCLUSIONS OF LAW
Subsection 959.011(3), Florida Statutes (1979), pertaining to the responsibility and the authority of the Department of Health and Rehabilitative Services provides in part:
The department shall have exclusive supervisory care, custody, and active control of persons committed to it.
Pursuant to such regulations as the department may provide, the department is authorized to transfer persons from one facility or program to another
facility or program within the department.
Subsection 1011-9.02(1), Florida Administrative Code (1979) provides:
A transfer of a child from one treatment program to another treatment
program may be accomplished in order for the child to be placed in a more appropriate placement consistent with his or her needs.
Section 10H-9.05, Florida Administrative Code (1979) provides in part:
The Program Supervisors and Program Specialists are hereby designated as Hearing Officers and delegated the power and vested with the authority to effect transfers and revoke furloughs in accordance with the following rules:
A hearing shall be held in all cases involving:
1. A treatment transfer of a child from a lower to a higher restrictiveness category treatment program . . . .
* * *
(h) If after full consideration of
the evidence, the Hearing Officer finds by a preponderance of substantial evidence that the child requires a transfer . . . .
the Hearing Officer may then effect transfer
Subsection 10H-9.06(1), Florida Administrative Code (1979) provides:
At the time a hearing decision is announced, the child will he informed that he or she may, without fear of prejudice or retaliation
request a formal hearing as set forth in the Administrative Procedures Act.
The child's request shall not act to stay the accomplishment of the transfer or furlough revocation.
The above provisions and other portions of Chapters 959, Florida Statutes and 10H-9, Florida Administrative Code, describe the procedures to be followed in effecting transfer of a delinquent child. Respondent established that all the required procedural safeguards were observed.
Respondent demonstrated that its decision to transfer Petitioner to a more restrictive program was based on good cause. The three runaways constitute ample evidence that Petitioner's needs were not being met by the program available at the Duval House. Selection of the Dozier School was appropriate since it is the only facility available which offers more restrictive treatment.
