STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FRANK T. HENDERSON, )

)

Petitioner, )

)

vs. ) CASE NO. 81-011

) STATE OF FLORIDA, DEPARTMENT ) OF HEALTH AND REHABILITATIVE ) SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted on March 3, 1981, at Florida State Hospital, Chattahoochee, Florida.

APPEARANCES

For Petitioner: J. Craig Williams, Esquire

335 East Bay Street Jacksonville, Florida 32202

For Respondent: Gerry L. Clark, Esquire

Florida State Hospital Chattahoochee, Florida 32324

ISSUE

The issue presented by this case concerns the question of whether the Respondent, State of Florida, Department of Health and Rehabilitative Services has exhausted all treatment for the Petitioner, Frank T. Henderson, through available sex offender programs administered by the Respondent. See Section 917.20, Florida Statutes (1977).

FINDINGS OF FACT

1. The Petitioner submitted a "Petition for Administrative Determination" to the State of Florida, Deportment of Health and Rehabilitative Services. In turn, the Department requested the Division of Administrative Hearings to conduct a formal hearing to consider the matters set forth in the petition and this request was received by the Division of Administrative Hearings on January 5, 1981. A final hearing in this cause was scheduled for January 30, 1981, but was not conducted until March 3, 1981, to allow Petitioner to secure representation.

   
   

2. In the course of the final hearing the Petitioner testified in his own behalf. The Respondent called as witnesses Michael Denny, Staff Psychologist in the forensic service at the Florida State Hospital and Robert H. Alcorn, Jr.,

   Director of the Mentally Disordered Sex Offender Program at the Florida State Hospital. Respondent's two exhibits were admitted as evidence.

   
   

3. At all times pertinent to this proceeding, the Petitioner has been in the custody of the Respondent in keeping with that order of the Circuit Court of Duval County, Florida, and the authority of Chapter 917, Florida Statutes (1977). Beginning July 28, 1978, through the present, Petitioner has resided in the Florida State Hospital at Chattahoochee, Florida, where he is undergoing treatment in a hospital program for the benefit of mentally disordered sex offenders. This program and similar programs in other institutions administered by the Respondent require a high degree of motivation on the tart of the patient in order to achieve success. Although the Petitioner has made progress in the course of his stay, the Respondent has made a preliminary determination that it has exhausted all appropriate treatment for the Petitioner through the program in which he is enrolled and has additionally concluded that similar programs within the State of Florida do not offer other opportunities for progress. In that respect, the Respondent has exhausted treatment in the affiliated programs.

   
   

4. The principal treatment modality in the mentally disordered sex offender program at Florida State Hospital is group therapy. The petitioner has participated in the group therapy sessions during his current hospitalization but no significant change in his behavior has been observed during this period. His condition has been diagnosed as (1) passive aggressive personality, passive type, (2) inadequate personality and (3) sexual deviation, incest. Henderson has been placed in this program as a result of incestuous activity with his daughter. His present condition is best described as a personality disorder with passive aggressive features. Metaphorically, an individual suffering from this form of personality disorder, if asked to mow the lawn and in doing so becomes confronted with flowers he would mow the flowers down rather than go around then. Typically, this type of disorder carries with it certain coping mechanisms such as problems with employment, substance abuse, and sexual deviation. Of these mechanisms, Henderson suffers from the latter two and in particular still has a propensity to act out in a sexually deviant manner.

   
   

5. Group therapy has been described as the primary treatment form in the sex offender programs of the Respondent and the petitioner has advanced through the initial levels of the program and is now involved in the final level offered through group therapy. In that connection, his group meets one to one and one half hours, two or three times a week. The majority of his treatment while involved in Level III has been under the control of psychologist Michael Denny. This commenced in June, 1979, and ran through January, 1981. In the first five

   (5) months of the group work, Denny attempted to establish a rapport with the Petitioner and to discuss the Petitioner's marriage and personality style and from November, 1979, through January, 1981, attempted to treat this personality style and propensity to commit sexually deviant acts. Success in this effort was limited due to the Petitioner's failure to heed advice concerning his problems and personality style and problems with sexual deviancy. Henderson is aware of the dynamics of what lead him to commit sexual battery on his daughter and of his problems with his marriage which lead him to seek out alcoholism as a defense mechanism, to inappropriately keep people at a distance, and the ensuing problems. Nonetheless, the Petitioner has failed to alter his problem state and his present posture in such that the group therapy sessions will not assist in rehabilitation, and in view of the fact that the group therapy sessions are the means of ameliorating his sexual problems, treatment has been exhausted. The Petitioner is still likely to act out in a sexually deviant manner. The attempt of trying to get Henderson to be more assertive with other males and females has met resistence by Henderson through his internalization of feeling, and he would

   be prone to abuse substances to assist in this internalization, with the result being that the utilization of those substances would cause him to be abusive with others. Henderson continues to blame others for his problems and is superficial in interaction with others and lacks the depth of a close relationship. Only one time in the period of one and one half years that psychologist Denny dealt with Petitioner did the Petitioner express his inner feelings. Henderson also has problems following small rules or agreements with other persons. Finally Henderson has a tendency to use religion as a foil to discussing his disorder. Although asked not to use that defense mechanism in the course of the group sessions, Henderson has used religion as an unsatisfactory explanation for his deviancy.

   
   

6. The clinical summary and report of the staff of the Florida State Hospital, rising from the November 12, 1980, staffing, may be found as Respondent's Exhibit No. 2, admitted into evidence, and this summary expresses the staff's opinion that treatment has been exhausted and the recommendation that the Petitioner be returned to the committing court. This determination was followed by an interdepartmental discussion of the Petitioner's case which was held by the various unit directors of the sex offender programs within the Department's control and it was the opinion of those unit directors that treatment of the Petitioner's condition has been exhausted.

   
   

7. Petitioner has progressed in areas outside of the group therapy sessions to include participation in an alcoholics anonymous program in which he graduated and vocational participation in small engine repair and office education, wood therapy and leather therapy, participation with the Jaycees at the hospital and attendence at religious services. The quality of his performance in the adjunctive therapies is not sufficient to cause a change in the basic nature of the Petitioner's condition for which he was committed as a sex offender and is not such that it would cause a change in the determination that the Respondent has exhausted treatment for the Petitioner.

   
   

8. Henderson states that he realizes what caused his crime in the sense that he was not assertive and was rejected and hurt to the extent that he was not performing normally and held hatred in his heart for his stepmother and wife. He said that he has enjoyed using hatred as a defense mechanism and was wrong and should take those problems to God and people. He feels that he has friends on the ward in his area and has had close relationships with the staff until he had problems with his back requiring surgery. (The staff feels that some of these problems are "psychosomatic.") He wanted to be removed from Denny's group and this was accomplished but he still feels bitter and hurt. He has expressed a willingness to work on his problems, but he conditions this on the fact that his willingness depends on the consensus of the staff of the Hospital that he needs further assistance, having determined in his own mind that his problem is under control.

   
   

   CONCLUSIONS OF LAW

   
   

9. 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), and Section 917.011, Florida Statutes (1979).

   
   

10. 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 a question of whether

    the Respondent has exhausted all appropriate treatment of this patient [see statutory references set forth in paragraph (1) to these conclusions of law]. This hearing was designed to address the question of exhaustion of treatment and once the Department has made the final determination, the committing court may pursue the alternatives available to it as set forth in Subsection 917.011(1), Florida Statutes (1979). See also Cummings v. State, 379 So.2d 988 (Fla. 1st DCA 1980).

    
    

11. 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 keening 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 as opposed to a judicial determination.

    
    

12. 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. Therefore, the Petitioner should be returned to court with an accompanying report as set forth in Subsection 917.011(1), Florida Statutes (1979).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby,

RECOMMENDED:

That a final order be entered by the Department of Health and Rehabilitative Services finding that it has exhausted all appropriate treatment for Frank T. Henderson, and that said Frank T. Henderson be returned to the committing court for further disposition.

DONE and ENTERED this 19th day of March, 1981, in Tallahassee, Florida.

CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 19th day of March, 1981.

COPIES FURNISHED:

J. Craig Williams, Esquire

335 East Bay Street Jacksonville, Florida 32201

Gerry L. Clark, Esquire Florida State Hospital Chattahoochee, Florida 32324

Docket for Case No: 81-000011

Orders for Case No: 81-000011