STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 77-834

)

MICHELLE WALLACE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Michael R.N. McDonnell, Hearing Officer, for the Division of Administrative Hearings, at 4:00 p.m., on July 19, 1977, in the Superintendent's Office at the Alyce D. McPherson School, Ocala, Florida.

APPEARANCES

For Petitioner: Anthony DeLuccia, Esquire

Department of Health and Rehabilitative Services

For Respondent: Michelle Wallace and a child under

commitment to Petitioner, appeared in her own behalf.

Petitioner seeks to revoke the furlough of Respondent pursuant to Section 959.156, Florida Statutes, and Chapter 10H-9, Florida Administrative Code, on the grounds that Respondent has knowingly violated a condition of her furlough agreement in a material respect. Respondent is charged with spending two nights away from her place of residence without authorization and in violation of her assigned curfew.

Petitioner called as witnesses Mr. Jeff LaHurd, a youth counselor supervisor with HRS and Linda Summers, a placement coordinator with Youth Services and the person who conducted the initial informal hearings concerning the revocation of Respondent's furlough status. Petitioner introduced in evidence as Exhibit No. 1 the furlough agreement and as Exhibit No. 2 individual case sheets containing entries regarding Respondent's progress between December 2, 1976, and April 22, 1977.

Witness LaHurd, in addition to establishing the foundation for the introduction into evidence of Petitioner's Exhibits Nos. 1 and 2, testified that the Respondent had been accused of spending two nights away from her residence without authority but that he had no personal, direct knowledge whether the accusation was true. He testified further that Respondent had been placed in a St. Petersburg Residential Youth Program known as the "VINE" after difficulties at her previous furlough residence.

Witness Summers, testified that she was the Hearing Officer for the Respondent on two separate occasions. The first was April 3, 1977, wherein it was alleged that Respondent had violated condition No. 4 of her furlough agreement:

not change or leave residence, employment and/or school or leave the county of residence without the consent of the counselor.

As a result of the hearing, Respondent was placed in the "VINE" program. The witness testified that this was done with the Respondent's consent.

Witness Summers testified further that a second hearing was held on April 19, 1977, because Respondent was accused of leaving the "VINE" program without permission. At this hearing the witness testified that Respondent said she would not stay at the "VINE" and would not return there. Respondent was quoted as saying, "I will not go back, you can't make me go back". At the second hearing Respondent's furlough was revoked by witness Summers in her capacity as Hearing Officer and Respondent requested a formal hearing pursuant to the provisions of Rule 10H-9.06, Florida Administrative Code.

Respondent presented no evidence on her behalf nor did Respondent choose to testify.

FINDINGS OF FACT

1. Respondent Michelle Wallace is a child under commitment to the Department of Health and Rehabilitative Services who on January 25, 1977, was granted the privilege of transferring to a community placement under the direct supervision and authority of the Bureau of Field Services, Division of Youth Services, Department of Health and Rehabilitative Services pursuant to the furlough agreement of the same date.

   
   

2. Two informal hearings were conducted regarding Respondent's furlough status. The first, held April 3, 1977, resulted in Respondent being placed in the "VINE" program. The second, held April 19, 1977, resulted in the revocation of Respondent's furlough status. At the second hearing Respondent declared that she would not go back, nor could she be made to go back to the "VINE" program.

   
   

   CONCLUSIONS OF LAW

   
   

3. The burden is on Petitioner to establish that Respondent knowingly violated a condition of her furlough agreement in a material respect. The only evidence presented to that effect was hearsay of a kind that would not be admissable over objection in civil actions. Such evidence is not sufficient in itself to support a finding.

   
   

4. Respondent's injudicious declaration at the second hearing, while being indicative of an attitude inconsistent with that desireable in a juvenile enjoying furlough status, does not constitute a violation of a condition of her furlough agreement in a material respect. Accordingly, Respondent should not be held accountable in these proceedings for conduct which is not the subject of the administrative accusation.

RECOMMENDATION

It is therefore recommended that Respondent MICHELLE WALLACE be restored to furlough status.

DONE and ENTERED this 25th day of July, 1977, in Tallahassee, Florida.

MICHAEL R. N. MCDONNELL

Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Michelle Wallace

Alyce D. McPherson School Post Office Box 1359 Ocala, Florida 32670

Anthony M. DeLuccia, Jr., Esquire Post Office Box 2258

Ft. Myers, Florida 33902

Ms. Mildred Kelly

Children & Youth Program Supervisor Post Office Box 2258

Ft. Myers, Florida 33902

William J. Page, Jr.

Secretary

1323 Winewood Boulevard

Tallahassee, Florida 32301

Docket for Case No: 77-000834

Orders for Case No: 77-000834