STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARY K. HAWKS and MABEL L. KENNINGS, )

)

Petitioner, )

)

vs. ) CASE NO. 84-1190

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

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was held in this matter before Marvin E. Chavis, duly designated Hearing Officer of the Division of Administrative Hearings, on May 10, 1984, in Pensacola, Florida.

APPEARANCES

For Petitioner: Mary K. Hawks, pro se

Mable L. Kennings, pro se 7167 Coronada Drive

Pensacola, Florida 32506

For Respondent: Linda K. Harris, Qualified Representative Department of Health and

Rehabilitative Services

Office of HRS District I Legal Counsel Post Office Box 12836

Pensacola, Florida 32576 ISSUES AND BACKGROUND

This case arises out of a petition filed by Mary K. Hawks and Mable L. Kennings, challenging the transfer of Kenneth Lyle Barrett from Pensacola Boys' Base, a state halfway house facility in Pensacola, Florida to the Arthur Dozier School for Boys, located in Marianna, Florida. At the formal hearing, the Petitioners Mary K. Hawks and Mable L. Kennings, testified on their own behalf and also called as witnesses, Mr. Richard Wilson, Kathy Lucas and Kenneth Barrett. Respondents called as witnesses Kathy Lucas, Doug Prevatt, Raymond B. Nolton, Jack Coppinger, Richard Wilson, James R. Strong and Linda Williams.

Subsequent to the hearing, the representative for the Respondent submitted proposed findings of fact and conclusions of law for consideration by the Hearing Officer. To the extent that those proposed findings of fact and conclusions of law are inconsistent with this order, they were rejected as being unsupported by the evidence or as unnecessary to the resolution of this cause.

FINDINGS OF FACT

1. On December 19, 1983, the Circuit Court of Escambia County, Juvenile Division, entered an order removing Kenneth Lyle Barrett from the custody and control of his mother, Mary K. Hawks, and committing him for an indeterminate period of time to Health and Rehabilitative Services. The order of the court recommended that Kenneth be placed in a halfway house. This commitment resulted from charges of assault and battery and grand theft.

   
   

2. Following the entry of the court's order, Kenneth was in fact placed in a halfway house in Pensacola, Florida. Kenneth entered the halfway house, Boys' Base, on December 20, 1983. Kenneth did not progress in the treatment program at Boys' base. He continued to exhibit aggressive assaultive behavior and was involved in the following incidents:

   
   

   1. On February 1, 1984, he gave another

      boy a pack of cigarettes to let him sodomize him.

   2. On February 14 and 15, 1984, he had oral and anal sex with his roommate.

   3. On February 19, 1984, Kenneth threatened another resident at Boys' Base and told him he was going to have sex with him. The boy who was threatened was smaller than Kenneth and was so

      scared he did not sleep the night after the threat was made. He also threatened the resident to whom he had given the pack of cigarettes.

      
      

3. Following the incidents on February 1, 14, and 15, 1984, Kenneth was counseled and disciplined and given an opportunity to change his behavior. The incident on February 19, 1984, occurred while he was still being counseled and disciplined for the February 14 and 15 incidents.

   
   

4. As a result of the above incidents, the Director of Boys' Base requested a transfer hearing in order to transfer Kenneth to a more secure facility. On February 27, 1984, Mr. Richard Wilson of the Department of Health and Rehabilitative Services conducted such a hearing. Kenneth, as well as his family, was present at the transfer hearing. Kenneth admitted in the hearing each of the incidents on February 1, 14, 15 and 19. He also admitted he was bigger and stronger than the boys he had threatened. Each of the incidents on February 1, 14, 15 and 19 were violations of Kenneth's supervision agreement which he had signed upon entering Boys' Base.

   
   

5. Based upon the evidence presented at the hearing, Mr. Wilson recommended transfer to a more secure facility. The next level above a halfway house in terms of security, is a training school such as the Arthur Dozier School for Boys in Marianna, Florida. At the time of entry of the original commitment order, the circuit court had recommended a training school as the second alternative after the halfway house. On February 29, 1984, Kenneth was transferred by HRS to the Dozier School for Boys, Marianna, Florida, where he remained at the time of the hearing in this matter.

   
   

6. At Dozier, Kenneth participates in group and individual counseling. Kenneth has had no homosexual activities or incidents while at Dozier. His relationship with peers and the manner in which he gets along with others is about average. Kenneth feels Dozier is helping him in his school work. At Dozier, there is more supervision than at Boys' Base.

7. When Kenneth originally arrived at Dozier, he was placed in Halton House which is for aggressive, combative boys. He did not exhibit any aggressive or combative behavior and was transferred to Dozier House which is much more open and flexible.

   
   

8. Kenneth is evaluated every 28 days. Prior to the early part of April, he was promoted to the sophomore level of the program. As a result of two fist fights in April he was not promoted to junior on his next evaluation. However, he has had no problems since the two fights and will be eligible for promotion to junior level on his next evaluation. When he is promoted to senior status, he will be evaluated for release status.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this action.

   
   

10. Pursuant to Section 39.11(1)(a)(2)(c), Florida Statutes (1983), the circuit court is empowered to commit children to the Department of Health and Rehabilitative Services. That same section provides that the commitment shall be for the purpose of exercising active control, including, but not limited to, custody, care, training, treatment, and furlough into the community.

    
    

11. Once the child is committed to the Department, the appropriate facility to be used as a security unit is determined by the Department. Section 959.10(2), Florida Statutes (1982). This authority includes the right to make transfers from one facility to another and the following statutory provisions relate to such transfers:

    
    

    The department may approve any appropriate facilities for use as security units. When any person is committed to the department and is thereafter found incorrigible, or his continued presence in a facility of the department is deemed injurious to its management and discipline, the department may, in its discretion, transfer such person to any one of such security units there to be kept, disciplined, and supervised. The department shall have the discretionary authority to transfer any such person from one security unit to another and may at any time transfer him to a youth services program. The department may make transfers as herein provided under such procedures as the department may prescribe.

    Section 959.10(2), Florida Statutes (1983).

    
    

    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

    including, but not limited to, furlough in the community and the revocation of such furlough. Section 959.011(3), Florida Statutes (1983).

    
    

12. Pursuant to the authority granted the Department under the statutory sections quoted above, the Department has promulgated rules relating to transfers of children from one facility to another and the procedures to be followed in making such transfers. Those rules provide in relevant part:

    
    

    Initial assignment. Upon commitment or assumption by the Department of valid jurisdiction, authority, supervision, care, control or custody, each child shall be assigned by the Department to the least restrictive available treatment Program deemed by the Department to be the most appropriate for successful rehabilitation. . .

    Rule 10H-9.01(1), Florida Administrative Code.

    * * *

    Transfers and Revocations; Procedures:

    1. 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:

       1. 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.

    Rule 10H-9.05, Florida Administrative Code.

    * * *

    (1) 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.

    * * *

    1. Treatment Transfers - Transfers made to a program more consistent with the specific treatment needs of the child. The following situations may be grounds for considering a treatment transfer:

       1. the child is not responding to the rehabilitation program to which assigned.

       2. the program to which the child is assigned does not have adequate rehabilitation services for the needs of the child.

    Rule 10H-9.02, Florida Administrative Code.

    
    

13. In the instant case, Kenneth Barrett, a minor, was committed to the Department by an order of the Circuit Court of Escambia County. Kenneth was initially assigned to a halfway house called Pensacola Boys' Base. While at Boys' Base, Kenneth did not progress acceptably through the program. He engaged in homosexual acts and threatened boys smaller in size.

14. As a result of his aggressive and disruptive behavior, it was recommended that Kenneth be transferred to a more secure facility. On February 27, 1984, Mr. Richard Wilson of the Department, conducted a transfer hearing. Kenneth and his family attended the hearing and Kenneth admitted the improper conduct. The Hearing Officer recommended that Kenneth be transferred to a more secure facility than Boys' Base. Based upon this recommendation, Kenneth was transferred to the Arthur Dozier School for Boys.

    
    

15. At Dozier, Kenneth has progressed through the program at an average rate and has engaged in no aggressive or combative behavior. Kenneth himself stated that Dozier has helped him with his school work. He is receiving daily group counseling and weekly individual counseling.

    
    

16. Kenneth's mother and grandmother contended that the best place for Kenneth is at home with them where he can receive love and support from his family. However, the only issue which can be resolved in this proceeding is whether the Department acted properly in transferring Kenneth.

    
    

17. The evidence established that Kenneth was first assigned to the least restrictive, yet appropriate facility. As a result of his misconduct and failure to progress he was transferred to a more secure facility. Prior to his transfer, Kenneth was given a hearing and all procedural safeguards provided by the Department rules and the statutes implemented. The Department had the legal authority to take the action of transferring Kenneth and proper grounds existed for the transfer.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law it is, RECOMMENDED:

That the Department of Health and Rehabilitative Services enter a final order affirming the transfer of Kenneth Lyle Barrett as proper.

DONE AND ORDERED this 14 day of June 1984 in Tallahassee, Florida.

MARVIN E. CHAVIS

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 14 day of June, 1984.

COPIES FURNISHED:

Linda K. Harris Qualified Representative Department of Health and

Rehabilitative Services District I Legal Counsel Post Office Box 12836 Pensacola, Florida 32576

Mary K. Hawks Mable L. Kennings

7167 Coronado Drive

Pensacola, Florida 32506

David Pingree, Secretary Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32301

Alicia Jacobs, Esquire General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32301

Docket for Case No: 84-001190

Orders for Case No: 84-001190