vs. ) CASE NO. 81-2062
Respondent. )
Pursuant to notice, a formal hearing was conducted on September 29, 1981, at the Florida State Hospital, Chattahoochee, Florida.
The issues presented by this case concern the question of whether the Respondent, State of Florida, Department of Health and Rehabilitative Services has exhausted all treatment for the Petitioner, Harry William Rinehart, through available sex offender programs administered by the Respondent. See Section 917.20, Florida Statutes (1977).
The Petitioner submitted a "Petition for Administrative Determination" to the State of Florida, Department of Health and Rehabilitative Services. This Petition was received by the Division of Administrative Hearings on August 20, 1981, as transmitted by the State of Florida, Department of Health and Rehabilitative Services. The Department has requested the Division to conduct a formal hearing in keeping with Subsection 120.57(1), Florida Statutes. The final hearing in this cause was conducted on September 29, 1981.
In the course of the final hearing, the Petitioner did not testify but did offer a witness in his behalf, one Dr. Robert M. Berland, a staff psychologist in the forensic program at the Florida State Hospital in Chattahoochee, Florida. The Petitioner submitted eighteen (18) exhibits. Respondent called as its witnesses, Robert Alcorn, Clinical Director for the mentally disordered sex offender program at the Florida State Hospital; Michael Denny, Petitioner's attending clinical psychologist at Florida State Hospital and Michael Pomeroy, another attending clinical psychologist at Florida State Hospital who had worked with the Petitioner. Respondent submitted nine (9) exhibits.
At all times pertinent to this proceeding, Petitioner has been in the custody of the Respondent in keeping with the orders of court and the authority of Chapter 917, Florida Statutes (1977). During that time, the Petitioner has resided at the Florida State Hospital, Chattahoochee, Florida, where he has undergone treatment in a hospital program for the benefit of mentally disordered sex offenders. Although the Petitioner has been subjected to a full range of treatment opportunities, his progress in the recognition of and ability to deal with the underlying condition which caused him to be placed in this program has reached its zenith. In the face of this circumstance, the Respondent has made preliminary determination that it has exhausted treatment for the Petitioner, through the program in which he is enrolled. Additionally, it has been concluded that similar programs within the State of Florida do not offer other opportunities for progress. Thus, the Petitioner has requested the formal hearing which is the subject of this Recommended Order.
Rinehart was committed to the custody of the Respondent on May 24, 1979, the Court having found him to be a mentally disordered sex offender within the meaning of Chapter 917, Florida Statutes (1977). He was received into the program at the Florida State Hospital in Chattahoochee, Florida, on June 18, 1979, and has undergone treatment beginning on that date. The objectives of the treatment program were to deal with Rinehart's underlying condition until he no longer evidenced himself to be a menace to society in terms of sexual "acting out" or until it was concluded that he could no longer be treated.
The program at Florida State Hospital has as its central focus the utilization of group therapy with adjunctive programs of recreational and occupational therapy and some individual therapy and relies heavily on a patient's self-motivation.
Respondent's Exhibits 1 through 4, admitted into evidence, are clinical summaries of the Petitioner's condition during the course of his treatment. As can be seen in the initial evaluation of November, 1979, the petitioner had made minimal progress in the program and had offered little participation. (He had come into the program in a circumstance where he was placed on suicidal precaution.) In these early phases of the treatment, the patient was distant and withdrawn and wrote notes in the group therapy sessions as opposed to communicating orally. His attitude was childish and immature and he was prone to "horseplay" and to breaking rules of the unit, for which violations he was placed in seclusion. It was difficult in the 1979 year for the therapist assigned to the Petitioner's case to establish goals for his improvement in the group setting and as a consequence an attempt was made to use individual therapy sessions to address the particular needs of the patient.
By March, 1980, at the time of the next staffing of the patient to determine his progress, again minimal progress had been demonstrated; however, there had been some increase in participation in the group programs, two or three weeks prior to the staffing. The patient still had a maladaptive coping style and had problems controlling his anger and depression and still had a tendency to "act out," that is to say be involved in inappropriate behavior. At the conclusion of the March, 1980, staffing it was intended that another evaluation be made within ninety (90) days.
By June, 1980, a decision had been reached to change the primary therapist for the Petitioner, from a female to a male therapist, due to the fact that the Petitioner utilized the sessions with the female therapist to seek her attention in an unacceptable way.
In June, 1980, Michael Pomeroy became the therapist for the Petitioner. Pomeroy served until May, 1981. Pomeroy is a clinical psychologist. Pomeroy was replaced by Michael Denny, another clinical psychologist at the hospital and Denny worked with the patient from May, 1981, through July, 1981. Denny replaced Pomeroy when Pomeroy left the sex offender unit.
In the overview, by April, 1981, when the staffing was held, Rinehart was no longer evidencing the same form of childish behavior that he had shown initially; however, the staff at the hospital was uncertain whether this change had been promoted by the aging process and maturity associated with that process or due to the therapy afforded. In the April staffing a discussion was made on the question of the twenty-five (25) year minimum sentence which the Petitioner was facing for the offense which had caused his placement in the program. By that time, i.e., April, 1981, the staff had more or less reconciled itself to the fact that Rinehart was going to make little progress in coming to some understanding of, and dealing with, the underlying sexual difficulty. Consequently, beyond April, 1981, for a period of up to one year, it was intended that an effort should be made to assist the Petitioner in coping with a prison environment. This plan of treatment came about as a result of a discussion between staff and the Petitioner's attorney. The emphasis of this coping mechanism was to assist the Petitioner in choosing friends in a prison environment; the types of behavior to avoid in prison; an effort to share experiences from people who had been in a prison environment and who were in the sex offender program and to give the Petitioner some vocational training skills which would avoid his confinement without any outlet.
The April, 1981, plan was put into effect but it was interrupted in July, 1981, due to an indictment placed against the Petitioner for an alleged homicide involving a staff member at Florida State Hospital. This caused another staffing conference to be held on July 29, 1981, at which point a decision was reached which was to exhaust treatment on the Petitioner and have him returned to court. Subsequent to that date, the Petitioner has been in the maximum security building of the hospital for reasons of security and for reason that his attorney did not wish the hospital staff to talk to the Petitioner. Therefore, the Petitioner has not been involved in the sex offender program since late July, 1981.
After the Florida State Hospital had decided to exhaust treatment on the Petitioner, a discussion was held between the directors of other programs in the State dealing with sex offender problems and it was the consensus of those other program directors that they could not assist in treating Rinehart's condition and a determination was reached at the Departmental level to exhaust treatment.
The testimony of psychologist Pomeroy established that the Petitioner was angry when Pomeroy took over as the Petitioner's primary therapist from the former therapist Carol Ford. The Petitioner expressed his anger by wearing sunglasses at the group therapy sessions. After a time, the Petitioner began to show some maturity and to evidence a change in attitude. The Petitioner was receiving instruction from a special teacher during this period to assist him in coping with his educational deficit. He still continued to manipulate the female aides by pouting and acting inappropriately. Pomeroy responded to this by treating the Petitioner as he would other adults and the Petitioner seemed to respond to being treated as an adult as opposed to being treated as a child.
The Petitioner participated in ward government in the sex offender program and became more social. Nevertheless, he continued to have problems choosing the right kind of friends and had a tendency to choose those persons who would not aid him in becoming a more responsible individual.
Pomeroy was in accord with the decision in April, 1981, to assist the Petitioner in his need to cope with the prison environment and the value of such a pursuit; however, as early as April, 1981, Pomeoy correctly identified the fact that the psychosexual problems of the Petitioner would not be alleviated by further treatment in the sex offender program and to that extent that element of the treatment had been exhausted in the spring of 1981.
Pomeroy's observations of the Petitioner while Pomeroy was the primary treating psychologist included the observation that the Petitioner would not talk in a group therapy session beyond expression interest in his problem as opposed to in-depth discussion of that problem. Pomeroy did find the Petitioner to be helpful to other members of the group. Once or twice the Petitioner entered into some discussion of the Petitioner's problem.
At this time, Pomeroy is of the persuasion that to keep the Petitioner in the sex offender program would be counterproductive.
Staff psychologist Denny, when he began treating the Petitioner as primary therapist instituted a regimen that would include individual therapy once a week for one hour a week and two times a week for one hour in each session as a group therapy treatment modality. Denny had reviewed the patient's records up to the point of his involvement as primary therapist and had discussed the case with therapist Pomeroy and other staff members.
On May 20, 1981, an attempt was made by Denny to have the Petitioner share his life history with fellow patients in the patient's group and to try to assist the Petitioner in understanding his personality style. All these matters were in preparation to allow the Petitioner to adjust to incarceration in the penal system and learn to cope with that incarceration.
In June, 1981, in the Denny group sessions, the Petitioner began to discuss his parents and the crime which had placed him in the sex offender program and began to express to me concern about why he committed the crime. This occurred in two sessions. After that, the Petitioner began to participate less and less in the sense of discussing his problems with other members of the group.
On July 6, 1981, at the time of a staffing, the emphasis as established through Denny's testimony was to impress upon the Petitioner his need to share the history of his life and to question others on his assumptions and to work on relating himself to others either in positive or negative
exchanges. These concerns, in terms of the treatment of the Petitioner, were efforts toward the goals of teaching the Petitioner to let others know how he felt about certain events in the past and to question others when he was unsure about his premise and to share similarities in his circumstance and the circumstance of others. The Petitioner's performance in July, 1981, prior to the time of the indictment, was minimal. He shared less and less of his life's experiences in that time sequence. In one of these July therapy sessions, the Petitioner was very unresponsive and in the course of that session smashed a ping-pong ball which was part of the sports equipment of the unit.
The efforts which have been mentioned previously which dealt with teaching the Petitioner vocational skills were successful during the time of Denny's treatment of the patient, in that the patient attended small engine repair classes and profited from that experience.
The Respondent has a so earned a graduate equivalency diploma.
By late June and early July, according to Denny, whose observations are accepted as factual, the patient was no longer motivated to deal with his underlying sexual problem and the hospital had exhausted all appropriate treatment. The patient, at that time, was still a sexual menace and there was still a likelihood of the patient committing other sexual crimes. In summary, his progress in rehabilitation of the underlying sexual deviancy was minimal.
There is some evidence of record indicating problems dating from 1973, and at various times thereafter, of seizure disorders on the part of the Petitioner. (See Petitioner's Exhibits 1 through 16.) The Florida State Hospital was aware of the history of those matters and although the patient has complained of numerous headaches and been treated for those headaches with aspirin substitute during his stay at the Florida State Hospital, the patient has not complained of seizure circumstances during this period nor has he appeared to have had any form of seizure during the hospitalization at the Florida State Hospital. (His last problem with seizures dates from late 1978.) Moreover, testimony revealed that any past problems the Petitioner has had with seizure type events did not hinder the treatment of the Petitioner at the Florida State Hospital. (See also Respondent's Exhibits 5 through 9.)
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action, in keeping with Section 917.20, Florida Statutes (1977)
The Respondent's Exhibits 1 through 5, as submitted posthearing and so marked, now become Respondent's Posthearing Exhibits 5 through 9, and are admitted.
The Petitioner has submitted, posthearing, his Exhibits 1 through 18, and those exhibits are admitted.
The parties in this action have submitted a posthearing stipulation of facts and that posthearing stipulation is hereby accepted.
Ultimately, questions of whether the Petitioner is properly classified as a mentally disordered sex offender, and the disposition to be made with respect to the Petitioner after he has received treatment as a mentally disordered sex offender are questions to be determined by the committing court;
however, preliminary to that determination by the court is the question of whether the Respondent has exhausted all appropriate treatment of this patient [see statutory reference set forth in paragraph (1) to these conclusions of law]. This hearing was designed to address the question of exhaustion of treatment. See also Cummings v. State, 379 So.2d 988 (Fla. 1st DCA 1980)
The decision of whether the Respondent has exhausted all available treatment is one affecting the substantial interest of the Petitioner, within the meaning of Subsection 120.57(1), Florida Statutes, and this administrative hearing was conducted in keeping with the terms and conditions set forth in Chapter 120, Florida Statutes, which calls for determination of the issue of exhaustion of treatment by the executive branch of government.
After a full consideration of the facts found herein, it is concluded as a matter of law that the Respondent has exhausted all appropriate treatment for the Petitioner.
That a final order be entered by the Department of Health and Rehabilitative Services finding that it has exhausted all appropriate treatment for Harry William Rinehart, and that said Harry William Rinehart be returned to the committing court for further disposition. 1/
DONE and ENTERED this 23rd day of October, 1981, in Tallahassee, Florida.
CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The Oakland Building
Filed with the Clerk of the Division of Administrative Hearings this 23rd day of October, 1981.
1/ The parties in the person of counsel have offered argument in support of their position in writing and have suggested by this argument that certain facts might be found. These arguments have been considered prior to the entry of this Recommended Order and to the extent that they are consistent with the Recommended Order, they have been utilized. To the extent that the arguments are inconsistent with this Recommended Order, they are hereby rejected.
Ken Driggs, Esquire Assistant Public Defender Post Office Box 671 Tallahassee, Florida 32302
Tony Rondolino, Esquire Assistant Public Defender 14500 49th Street North Clearwater, Florida 33520
