Dependency Defense

Defending parents against the power of the state to take their children

2009-09-21T21:31:00.002-04:00

...is a thankless job, is it not?

DCF psychotropic meds report

2009-09-01T18:08:00.003-04:00

In the aftermath of the tragic Gabriel Myers case, DCF set out to review the numbers of kids in the system who are on psychotropic medication.

I hope to study the report more and comment further, but for the moment I'll give you the link to it:

Meds report

Unless I just don't know how to read anymore, the numbers for Orange County seem absurdly under-reported.

Slightly related: I often wonder if the compulsion to perform a CBHA (Comprehensive Behavioral Health Assessment) on each and every child in DCF care leads inevitably to many, many more diagnoses of mental health problems than there ought to be, and perhaps wouldn't be, if either (a) the CBHAs were never done in the first place, or (b) the first such assessment were done by licensed doctors and not the folks who routinely produce the CBHAs.

The Breakout Group That Wasn't

2009-08-28T22:55:00.002-04:00

...If only we'd had a SIGN.

It's like that Eddie Izzard routine about lacking a FLAG when claiming a discovered country.

I attended the Florida Dependency Summit the past few days, which is always useful, if for no other reason because you get a fresh copy of Chapter 39. Intrepid blogger at Guardian ad What? and I thought a dependency blogger breakout session (rather a renegade pirate rebel unauthorized forbidden dependency blogger breakout session) would be a nice addition. We just lacked a sign, so it was not to be. Not to mention that neither of us know each others' names or what we look like, but that's neither here nor there.

Next year there SHOULD be a blogger forum. And there SHOULD be a push by someone to discuss forming a voluntary bar association of dependency lawyers. What are we waiting for?

What we're waiting for is for lawyers to enter into a spirit of cooperation when there is no real money in it, that's what we're waiting for.

Link to global revolution church audio

2009-08-26T09:36:00.009-04:00

...in anticipation of my appearance tomorrow on Fox and Friends. The link below demonstrates several things that I will argue in court, and not here (at least not now), but I want to present some basis for my claim that it appears that the Global Revolution Church renamed Rifqa Bary "Anna" during the 2.5 weeks that they had her in Florida.

Note also the simple act of Ohio police questioning a man in Kansas City in an honest attempt to locate a missing teenager (by the way, it worked, the Kansas City man apparently somehow knew that the child was with the Lorenz family and tipped them off that the police had questioned him) is portrayed by the pastor as "illegal" and as persecution.

Note also the emphasis on surrounding "Anna" with people telling stories about honor killings. How much of this did she hear in that 2.5 weeks?

Link is below. Admittedly, it is edited. The full sermon audio is on the church's website. I edited it for time and to focus on the things described above, but not to change the meaning of anything said in the full context.

LINK TO THE "ANNA" (RIFQA BARY) GLOBAL REVOLUTION CHURCH SERMON

[update: If clicking on the link doesn't work, cut and paste the url below to download audio:]

http://dependencydefense.com/revchurchedited.wav

Lawyer for Rifqa Bary's Mother Reacts to Governor Crist's Statement

2009-08-22T15:24:00.001-04:00

The Governor's unfortunate decision to make a public statement taking sides in the Rifqa Bary case before any evidence other than allegations has been presented underscores the need to return this case to the child's home state of Ohio. Governor Crist stated that he was “grateful” that the judge ruled a specific way and in support of his “administration's position”. The entire Bary family has already been exploited by those who recklessly wish to force this case into a clash of religions, and now by the Governor's statement the Bary family's case has become a political matter as well.

Given that the Regional Counsel responsible for defending Mr. Bary is a political appointee of Governor Crist, a public statement of the Governor's pleasure with a specific ruling in the case is not appropriate. Now the Barys can only conclude that chances for impartiality and straight-forward dealings with DCF are slipping away.

Hey! One of the Regional Counsel Offices has a website!

2009-06-29T21:30:00.002-04:00

I've been stunned and amazed for a couple of years that none of the Regional Counsel offices bother to maintain a website, as you might recall from this old post.

So in fairness I ought to point out that one of them actually has a website now.

Now the clients for the 4th Regional Counsel can find out how to contact their attorneys via the internet.

Excuse me?

2008-11-21T20:13:00.003-05:00

Now this is a headline: "Former DCF Employee Sentenced For Embezzling $1.5 Million"

It was an emotional scene Thursday evening in a Broward County courtroom after a judge sentenced a longtime state employee who, along with two others, embezzled more than $1 million from the Department of Children & Families.

It was money that was earmarked for needy children.

Violet Jones, the ringleader in the embezzlement scheme, was the last to take the stand.
..."I should have known better," said the former DCF supervisor.
...Jones was sentenced to 17 years in state prison and 13 years probation for stealing $1.5 million dollars from DCF accounts and spending the cash. The Shorter sisters were sentenced to 10 years in prison, 20 years probation.

Words found in other news accounts...."widely respected" and "supervisor".

Wow. Well that sort of eats up a good chunk of the money Florida saved by pretty much destroying the private dependency defense bar, doesn't it?

Congratulations to the President-Elect

2008-11-05T11:24:00.002-05:00

As I noted in the post below, I try to keep this blog non-partisan. I want to mark the election, however, and pass on to you something that I believe to be very well said at the NCCPR blog:

No matter who we voted for Tuesday, we all should be grateful for two things: First, let us be grateful that, when Barack Obama's mother decided she couldn't raise him for a while, no Child Protective Services agency ever got involved. And second, we should be glad that Marcia Lowry, founder and leader of the group that arrogantly calls itself "Children's Rights" (CR) was not suing the State of Hawaii from 1971 through 1979.

This was the time when Barack Obama was being raised by his grandmother who, so sadly, died Monday. Obama has said a great deal about how important Madelyn Payne Dunham was to him. On Tuesday, Obama made history – and odds are that wouldn't have happened had he not spent eight years living with Dunham in what now we would call informal kinship care.

But in those cases where, unlike Obama's, child protective services is involved, CR is trying to curb informal kinship care drastically. The group has decided that the magic bullet for foster care is licensing. So the group's latest crusade is trying to strong-arm states into requiring that every grandmother, grandfather, aunt, uncle or other relative who steps forward to care for a loved one whose parents are accused of maltreatment jumps through all the same hoops and meets all the same hypertechnical licensing requirements imposed on total strangers. With only limited exceptions, the CR rule would be: No license, no grandchild.

Random state control update

2008-10-30T23:09:00.002-04:00

I try, I really try, to keep politics out of this blog. I mean that. The majority of my colleagues who defend parents in dependency cases are what we would call politically liberal. The majority of my colleagues who work for the state, both attorneys and case workers and their web of supervisors (and by the way, DCF attorneys in Florida are now required to announce themselves as "attorney for the State" in all proceedings) are what we would call politically liberal.

Cool.

So please excuse me if I mention this:

"Our practice is when someone is thrust quickly into the public spotlight, we often take a look" at them, Jones-Kelley said"

It speaks for itself. Or at least, it ought to. Do I have this right? If a government official in charge of whether or not you get to keep your kids happens to hear your name somewhere, she by normal practice "takes a look" at you?

Scary.

Hey, how about this? Imagine you are a parent of a teen. Your teen is at school, and there is a sudden evacuation because there may be something lethal, something dangerous to life and limb, something frightening going on. Or maybe not. Your teen, standing outside the school and classroom and not especially being asked to participate in anything you might call learning, calls you on a cell phone to tell you that just in case you are worrying, she is o.k.

She gets suspended for violating the zero tolerance policy on involving parents in events that are 100% under the control of government, thank you very much.

I want to make a speech here, but I won't. Both of those links speak for themselves, and you and I (we dependency experts on both sides of the courtroom) know full well that "government", when it comes to deciding what is best for you and your children, is not some hyper-competent monolithic apparatus, but is usually instead a collection of scared young workers who will do anything but admit being wrong now and then.

More money to go to the removal side of the equation

2008-10-23T16:48:00.001-04:00

This looks good on the surface, but underneath is a bad idea.

4th Regional Counsel seems heading for a crash

2008-10-02T17:08:00.003-04:00

First, and let me get this out of the way: this is not gloating. I've never particularly wanted to see the OCCCRCs fail; I just don't see anything to disabuse me of the notion that failure is inevitable.

I've seen plenty of news articles over the past year stating that the offices are "up and running". I've not, until today, seen a news source take a closer look at how the offices are doing. This is from today's Daily Business Review. Some excerpts:

In a foundering economy with tight employment prospects, a new West Palm Beach-based state agency created as a backup public defender’s office is having problems retaining lawyers, suffering massive turnover in its first year.

At least 26 attorneys and staffers have left the office — including many who were forced out. That is almost a third of the 79 employees hired since September 2007, according to records obtained by the Daily Business Review.[snip]...A number of the people have been fired, and others left when faced with dismissal, according to sources familiar with the office who spoke on condition of anonymity. Others who quit of their own accord cited bad management, heavy workloads, poor working conditions and inadequate pay. Some said they left because they were forced to take cases above their experience level.[snip]...Complaints from former staffers have prompted several officials to take a closer look at the office.

Chief Palm Beach Circuit Judge Kathleen Kroll said she plans to review the office’s representation. Citing the chief judge’s responsibility to monitor capital cases, she said she recently pulled the files of the two Palm Beach Circuit death penalty cases assigned to Massa’s office to see how they are progressing.

“There’s been some concerns raised, and we’re not sure if it’s just disgruntled employees or legitimate concerns about the office,” Kroll said. She wants to meet with Massa.

The Broward and Palm Beach public defenders plan to meet with each other to discuss the conflict counsel office....

OK, you get the point. You should read the entire story. Here's a couple more interesting things. Remember, the 4th RC's budget began in 2007 was reported as "around $5 million":

Critics claim the conflict counsel offices were woefully underfunded from the start. The 2008 state budget provided for a total of $7.1 million for the 4th DCA office and its allotted 63 positions. According to records obtained by the Review, more than 15 percent of these positions are open. The Legislature gave Massa a raise in July from $80,000 to $100,000. One of his chiefs, Jennifer Hixson, got a $17,000 raise to take her salary to $77,000. Some of the other employees also saw increases in salary.

I've been predicting all along that within a couple of years, the budget for the OCCCRCs will exceed the amount formerly paid to private (rotation) attorneys. And that leads me to what really caught my eye in the article:

“It gave me pause as to whether poor people were receiving the quality of representation and treatment that they’re entitled to,” Finkelstein said in an interview. “I don’t know whether or not the rumors are true, but it has certainly raised at least a warning that gives rise to questions that need to be posed.”

He said he plans to speak to Palm Beach Public Defender Carey Haughwout about concerns and potential problems about the office.

Haughwout said high turnover makes for “very unstable representation.” When told what the Review found, she said that’s much higher turnover than in her office.[snip]...Attorney Omar Ghaffar, who worked in the Fort Lauderdale office from May to September, said he was hired as a civil attorney, and his managers assigned him to criminal cases.

“I told them straight out that I’m not feeling comfortable doing these murder cases,” the former Broward assistant public defender said. He said he was assigned to cases he was barred from taking as a private attorney under the registry system that was in effect before the conflict counsel’s creation.

And there's the real issue. Even we forgotten few in dependency defense have to exhibit a certain level of proficiency before our local ISC will put us on the list. The ABA has model qualifications for private dependency defense lawyers (and criminal defense lawyers as well, of course). It appears from reports similar to those in the quoted article that, other than a bar card, there are no standards for experience before one is sent out on the job as an assistant regional counsel.

Hideous

2008-10-02T17:00:00.001-04:00

Just a reminder that termination of parental rights is not always the best way to protect children.

End Game

2008-09-30T22:26:00.003-04:00

There is a reason there aren't posts here very often. It's related to the fact that my effort at building an online community of dependency defense lawyers has failed, I think.

Let's start with this: the J.A.C (the ironically named Justice Administrative Commission) has been demanding hearings and contesting payment for lawyers who have represented so-called "non-offending parents". Never mind that Chapter 39 is quite clear about all parents' entitlement to counsel; never mind that the very notion of non-offending parents was created by case law; never mind the irony that JAC is presenting case law, instead of Chapter 39, in hearings to twist a ruling somewhere that there is no constitutional right to effective counsel in dependency proceedings to mean that there is no constitutional right to counsel at all in dependency proceedings at all. Never mind all of that. What is important is that a governmental agency that goes by the name of "Justice Administrative Commission" spends what seems to be 98% of its time and resources seeing to it that those who seek justice for the indigent have a hell of hard time being paid for doing so, despite the contract JAC signs with them.

Now consider this: when I was asked by many in my circuit if I would apply for the position of Regional Counsel, I was flattered, but I answered honestly; I could not, with my experience in operating complex organizations and handling budgets and personnel, in good faith apply for a job that I knew simply could not succeed in its mission. I knew, and know, that the Regional Counsel offices simply cannot handle their mandates without at least twice (more likely triple) the budgets given to them. Of course, if their budgets were doubled, they'd be more expensive than the old wheel/rotation system of using private lawyers did, but that doesn't matter anymore because that ship has sailed.

Next consider this: it seemed strange that the Republican legislature of the State of Florida created a governmental solution, instead of a private solution, to the problem of indigent defense costs. Surely there were other options. I had plenty of them in my head. Nobody asked me. Nobody asked anyone who is in the trenches as appointed counsel in dependency cases.

As I write this, the nation is torn over fears spread by the republican President, the democrat Congress, and on down, that only the government can save us from a credit crisis created by...wait for it...the policies of past presidents and Congress. There is a link here, I think, or at least a fear of a link.

What if the whole point of the recent changes in Florida is to get rid of the notion of court-appointed attorneys for the indigent in dependency cases? What if that is the desired result? I give you the Cloward-Priven strategy, in which a system is overloaded with demands on it with the purpose of causing it to collapse (remember my response to why I wouldn't in good conscience apply for Regional Counsel) to the point that the system collapses and the public clamors for reform...in this case that reform being that indigent parents in dependency cases are not entitled to counsel.

I have come to believe that that is the end game. Put together all of the above, underscored by JAC's position in its various hearings about fees, along with the very predictable failure of the Regional Counsel offices, together with the fact that in at least one Florida jurisdiction, the Public Defender is no longer required to take certain cases, with other jurisdictions looking to grab on to this notion, all leading to a collapse of the Regional Counsels, and.....and....

The only thing that will make fiscal and legal sense after all of that is for Florida's appellate courts to back off and say that the indigent in dependency cases are not entitled to counsel at all, despite what the legislature said in Chapter 39.

And then the cost of an unfettered DCF and unlimited costs incurred by foster care without any watchdogs will come to roost. I started DependencyDefense.com with the notion that those costs and consequences were the whole point. I'm beginning to wonder if I was wrong. Costs and consequences be damned, I now seriously wonder if the Cloward-Priven strategy might not be in full effect, and the whole point of this is simply to create near-absolute power of government over any family who might be subjected to an anonymous phone call to the government. That it was a Republican legislature and a Republican Governor who gave us this is a little baffling, but less so every day that I see the plan to squeeze out competent lawyers for indigent parents come to fruition.

Holy Cow

2008-09-25T19:45:00.001-04:00

OMAHA, Neb. — Eleven children ranging in age from 1 to 17 were left at hospitals Wednesday under Nebraska's unique safe haven law, which allows caregivers to abandon youngsters as old as 19 without fear of prosecution.

Nine of the children came from one family. The six boys and three girls were left by their father, who was not identified, at Creighton University Medical Center's emergency room. Unrelated boys ages 11 and 15 also were surrendered Wednesday at Immanuel Medical Center.

The rest of the story is here.

Overheard at the Dependency Summit

2008-08-28T18:54:00.002-04:00

In a workshop at Thurday's Florida Dependency Summit, 3rd District Regional Counsel Joseph George offered some comments in the group discussion.

The leader/instructor asked him to explain his office, and in doing so he proclaimed that "there are no more private attorneys" defending parents in dependency court. Your blog author can tell you that rumors of his lack of existence are wildly exaggerated.

Mr. George also stated that "We (the Regional Counsel attorneys) are not just parents' attorneys; we are a DCF partner." He said that twice. I don't wish to make too much of that, in the context of the discussion one could hear that to mean that he seeks to reunify parents....just like DCF does. I guess. Personally, I think my clients don't want to hear that I'm a DCF partner. They want me to work to mediate solutions sometimes, yes. They more often want me to oppose and fight DCF, thus the whole "defense" in defense attorney thing. Partner with DCF? I don't think they want that. And really, had I sat for an interview to be the Regional Counsel, I wouldn't have thought that they'd want to hear that one of my goals in largely replacing the private defense bar would be to partner with the opposition. Seriously, have any elected Public Defenders ever gone to a convention of prosecutors and law enforcement and told them that the Public Defender is their partner?

Enough of that.

Lastly, and the most fun:

In a small room that contained 15th Judicial Circuit Chief Judge Kathleen Kroll and Florida Supreme Court Chief Justice Peggy Quince, Mr. George referred to his attorneys handling dependency cases as "My girls -- I mean attorneys".

A low "ooooooh" was heard from many in the room.

Incidentally, one of the points in the discussion (it was about media relations) made by the instructor was that, essentially, privacy is an illusion in this age (I agree) and that, in fact, what went on in the workshop may well be on the web before the end of the day.

So there you go.

See you at the summit!

2008-08-26T18:52:00.003-04:00

If you happen to be at the Florida Dependency Summit 2008 over the next three days, I hope to bump into you.

I'll be the guy in a tie clutching his brand new copy of Chapter 39.

Seriously, if anyone wants to leave a comment here, I'll check an maybe we can get together and compare notes Thursday afternoon.

I'm not dead

2008-08-12T22:13:00.003-04:00

You may have noticed very few posts lately.

It's not that there isn't news; it's not that there aren't things to blog about.

It's about being BUSY. So I apologize.

Here, in a flurry, are some things on my mind about dependency defense:

1. That Las Vegas seminar is coming up. There are only a few days left to register and get a discount for being part of a group. Get in contact with me and I can hook you up with that.

2. JAC. What can I say? These days, I'm stunned when I don't get an audit deficiency for the simplest of flat rate cases. My bookkeeper quit; it's just too much hassle dealing with JAC. My other two assistants can't keep up with the audit deficiencies. So, JAC wins. I no longer even know how much they owe me and can't find enough time to schedule enough hearings over contested fees. You win, JAC; you've made up a reason to avoid complying with your contract with me on scores of cases, and finally got me to think about how to withdraw with honor from defending dependency cases.

3. The Regional Counsel attorneys in my county (that being Orange) are good folks. They tend toward the zero experience in dependency cases, but the ones working it now are doing a pretty good job. I've enjoyed, in fact, my role as de facto mentor for some of them. Interesting rumor: the waiver cases (regarding parental notification for a minor getting an abortion) in the region are all being sent to Orange County because there aren't attorneys in neighboring counties to handle them. I'm not sure what significance that has, but it is interesting.

4. Speaking of JAC, they recently gave me an audit deficiency for not including in my billing the form that I myself came up with, drafted, and distributed on the Dependency Defense website. It seems that it is now required, so pardon me if I pat myself on the back for having thought of the need for it a year ago. Use this link to find the form in MSWord form so you can adapt it to your needs (see the section of that page labeled "forms").

5. Is anyone going to the dependency summit in Orlando at the end of August? Let me know, and we can get together and compare notes.

6. The best source of information about the Russo-Georgian War is at this link.

7. The ICPC is broken. Much, much more on that later.

Who should replace Bob Butterworth at DCF?

2008-08-01T15:16:00.002-04:00

As you probably know, DCF Secretary Bob Butterworth resigned this week, effective August 15.

The question is, who do you readers think should take over?

I nominate Alan Abramowitz. I'll write more on that later.

You mean the statute means what it says it says?

2008-07-14T20:07:00.002-04:00

Homeless for one night......

Good stuff, although it strikes me that an appellate decision that more or less recites the exact language that's already in the statute isn't an enormous victory.

Here's the link to the article, "Homelessness no excuse to remove child"

Here's an excerpt:

A Miami appeals court rebuked the state child-welfare agency Wednesday for removing a 12-year-old boy from his mother because she was homeless, ruling that not having a home for a child does not by itself constitute abuse....''Homelessness, derived solely from a custodian's financial inability, does not constitute the kind or level of abuse, neglect or abandonment necessary to justify removal of a child, unless [the state] offers services to the homeless custodian and those services are rejected,'' the court wrote....[Hey, here's my old friend Alan again]Alan Abramowitz, who took over as head of DCF's Miami operations last year with a reputation for preserving troubled families and reducing foster-care caseloads, hailed the ruling. ''If we removed a child because of homelessness we should be reversed,'' Abramowitz said. ``We are obligated to offer services to keep families together.''[but...but...but...]DCF is continuing to investigate the case of the mother, identified in court papers only as M.B., and agency administrators are ''reviewing our options'' before deciding how to proceed, Abramowitz said, adding that new information about the family emerged after the hearing that was presided over by Judge Manno Schurr in April.

My advice regarding that last part: get the investigation and what you intend to allege right the first time. That's helpful for everybody.

Here's a pdf of the decision from the 3rd.

It is a relatively short 5 page opinion. It points out the circular logic of a shelter petition that attempts to get around the mandate to provide services prior to removal because, in DCF's opinion, it can't provide the mandated services to minimize the danger to the child because...wait for it...the child is in imminent danger without said services in place.

I know. We've all been there.

It's also interesting to me that even though during the time between the filing of the shelter petition and the shelter hearing, the mother had secured a place to stay, and yet the judge sheltered the child anyway entering an order finding that the mother had no place to stay. That's an example of the first allegations sticking hard to cases, no matter what actual facts might develop later. That's one of the most frustrating things about dependency cases, in my opinion. You can litigate every single allegation, and disprove all of them, but the original allegations will be at the top of every single document ever filed subsequently.

Counties taking up Justice Pariente's suggestion

2008-07-01T12:48:00.003-04:00

Now this is bold. I can't blame the RC for trying, I suppose.

In Flagler, the council's [sic] request included hiring an additional staff member, Hadeed said Friday.

"We contend that even if the law were constitutional, which we claim it is not, payment of salaries clearly is not the obligation of counties," Hadeed said.

"Council" above should have been written "counsel".

Here is the larger context of that quote:

The Florida Association of Counties met Wednesday and opted to move forward with the suit, which was a stipulation Flagler commissioners attached before agreeing to join. Association members also decided that Flagler and other small Florida counties can get on board for a one-time cost of $500....[snip]...The association's lawsuit questions the constitutionality of an unfunded state mandate relating to indigent legal representation, or court-provided public defenders. Recent state legislation is requiring counties to contribute to a newly created entity, the Regional Conflict Counsel, by paying for office space, utilities, office equipment, security and maintenance.

And this from Broward:

A new, obscure state agency that helps represent the poor in court has rented offices on posh Las Olas Boulevard and wants Broward County taxpayers to pick up the $416,000- a-year tab.

County commissioners, forced to reduce services to provide property tax relief, refuse to pay the rent and ordered their attorneys to join other counties in a lawsuit.

Comments: $416k each and every year is a lot of money. Call me a rube, or worse if you'd like, but I wouldn't be going down that road were I the RC. The OCCCRCs are designed for failure in the first place, however unintentionally, and only creativity and innovation will allow any of them to succeed. So since most of the attorneys are in court all the time anyway, why not buy a building in a less expensive, but still relatively central location, and make it work with shared offices, telecommuting, etc. Only the paralegals and whoever answers the phones need to be in the office most days. The RC himself (I would say him or herself, but there aren't any hers occupying those offices) should be out riding the circuit, in my opinion, or else on the phone or at meetings with judges and the like, none of which requires one inch of full time office space.

Oh, and my second comment: Why weren't newspapers writing about this "obscure" state agency before the legislation creating it passed?

Good on you, Alan

2008-06-29T16:52:00.004-04:00

I used to work for Alan Abramowitz. I like Alan; he's a good guy.

Here's a quote from him in the South Florida Times:

“I think whenever you can keep a family together, it’s a victory,” said Alan Abramowitz, Miami’s regional administrator for the Department of Children and Families, and a proud family preservationist.

File this under "credit where it's due" posts. More:

“[DCF] Secretary Butterworth believes in family preservation, and believes that the state cannot make a good parent,” Abramowitz said, acknowledging that DCF’s top brass has not always been so pro-family. “There are so many families that could have been kept together that we have failed.’’

He recognizes that some families are incapable of providing a safe place for their children without state intervention.

“We will still have to remove some children from families, unfortunately. But it’s not as many as we do,” he said.
[snip]
Abramowitz, 46, balks at the system’s tendency to paint the parents it encounters as monsters who do not care for their children.

“The majority of the time, they love their children,” he said.

He is also mindful that many children enter the system due to poverty-related issues that the system classifies as “neglect,” noting that, “We should see it as a poverty issue and not an abuse or neglect issue.”

And finally, I am very glad that Alan is aware of the study mentioned in the article

For Abramowitz, walking the walk has meant impressing upon his investigators the trauma that removal inflicts upon children.

“The studies have come out over the past few years to show we have actually been doing a disservice to families,” Abramowitz said.

One such study, the March 2007 Child Protection and Child Outcomes: Measuring the Effects of Foster Care, looked at outcomes of more than 15,000 children and concluded that,
“Those placed in foster care are far more likely than other children to commit crimes, drop out of school, join welfare, experience substance abuse problems, or enter the homeless population.”

Buggy Whips

2008-06-29T15:49:00.002-04:00

As part of a comment to a few post again, we read the following:

Other attorneys should really take a look at themselves and evaluate whether they are trying to bring an agency down because their own business is suffering.

Everything benefits from context. That comment was in the context of a poster defending against other comments about the performance of the 4th RC office. That's all well and good.

The receiving end has a context as well. That is, we private attorneys have been reading quotes from Florida politicians for over a year, and particularly during the FACDL quo warranto action, that, to get right down to it, imply that we private dependency attorneys are selfish luddites, saboteurs of innovation and tax savings for the people of Florida, just so we can get rich, Rich, RICH, off of court appointments.

Well, it has been easy to infer those things over the past year, and even before that, attending our local Indigent Services Committee meetings.

So, a year and a half after our ISC cut our rate from a low hourly one to a rather astonishingly low flat fee that drove 83% of our experienced attorneys off the local rotation list for dependency; one year after the RCs were established by law and I'd hope to make a go at consulting and helping the RCs get set up; 8 months after the RCs were supposed to begin taking cases, and 6 months after the RCs actually did begin taking cases; and finally, after the legislature cut our flat fee 20%, I have some thoughts.

Thought # 1: It's over. I have a pretty website called DependenyDefense.com, and I no longer intend to be a dependency defense attorney.

Thought #2: Buggy whip makers went out of business with the advent of the automobile (and then the polar bears drowned!) (Just kidding. Was that sarcasm or a heartfelt warning? I won't tell. I try to keep most politics out of this blog). So why can't private defense attorneys who used to make a living accepting court appointments quietly and graciously go out of business?

My answer to that question is that we already are out of business; we just haven't put the lock on the front door just yet. The 20% fee reduction, along with JAC's very creative methods of finding audit deficiencies that destroy any possibility of keeping a small firm's cash flow predictable, is, I fear the end of anyone truly specializing in private defense work.

The first reason for that is that people with money don't get into dependency court, poor people do. Therefore, for a private attorney to specialize enough to get really good at what he or she does, he or she must be somehow subsidized. So all along, we buggy whip makers were paid by the taxpayer for performing a public service.

The second reason for that is, while buggy whip makers went out of business or adapted to making automobile accessories, the substitution of the OCCCRCs for private attorneys is not the same. The RCs won't be producing automobiles, to stick to my analogy, they will still be providing the buggy whips. Same product, and the same funding source. What is different is that the RCs can't meet all of the demand, so we private buggy whip makers are asked to to keep our entire factory open to produce much less, and at a smaller subsidy per unit of product. Nobody can do that for very long.

That leaves diversifying. In my personal case, I have a contract for other services at the juvenile courthouse (AAL for children in residential treatment centers and with other needs for representation)that helps to cushion the fall from buggy whip making bliss, but that has two problems. One, it keeps me tied to the juvenile courthouse, where virtually all potential clients are indigent, and two, that I just had to renegotiate the contract and ended up agreeing to increase my caseload by 28% or take a 28% cut in the compensation. That's not a complaint; it is a blessing compared to those at the juvenile courthouse who don't have such an alternative source of income. Still, I can see the end. One rotation day a month in which I might receive one or two clients at the most, for $800 a case is untenable.

So diversify we shall. We've entered the age of government monopoly on buggy whip making. Since now everyone a parent will come in contact with during the course of a dependency case will be a government agent, let's hope they at least meet the promise of saving a whole lot of taxpayer money in the process. The age of private attorneys able to specialize in and devote all of their time to defending indigent clients in dependency court as a check on government agents is over.

I still have hopes that in the future the legislature will allow experimentation with bidded contracts.

Some website changes

2008-06-29T15:35:00.002-04:00

Howdy, and happy weekend. I've updated the DepDef website a bit. It used to be written with a future view, e.g., "changes are coming" to the manner in which indigent parents in dependency cases will get counsel, and "how we can all work together" and that sort of thing.

I am very, very sorry to say that the working together thing never got off the ground. It never got onto its tiptoes, even. For those who've read me mentioning it before, I'm sorry for the repetition, but I've been disappointed to have my offers to help the new RCs be ignored for the past year. And any reading of the comments to a couple of posts ago will show you that there is a lot of Us vs. Them-ism going on.

Since the situation is somewhat different, I've made minor changes to language on the website. I just thought I'd let you know. I've also gotten rid of the attorney directory entirely, in favor of a link to this blog. Thank you very much to all who got listed, and the even more who asked to be listed. It was simply too difficult to keep it updated properly and I don't imagine that it was driving a whole lot of paying business to anyone anyway.

I will revisit the directory in the future if the message board or some other form of dependency defender community gels and gets more active.

last five searches, revisited

2008-06-26T22:03:00.002-04:00

Just to emphasize the post below, here are the last five search engine entries that lead readers to this blog, as opposed to any actual useful information about the RCs:

1. AOL search for words "Jeffrey Deen", this blog is search result #3

2. Google search for words "Jeffrey Deen, of the Fifth DCA regional", this blog is search result #3.

3. Google search for words "dependency defense". #1 result.

4. Google search for words "child abuse cases defense florida jackson flyte", this blog is #1 search result.

5. Google search for words "regional counsel jackson", this blog is #6 search result.

I'll let this theme go now. I hope I've made a point. For as long as the RCs, who I quite frankly would have been hired specifically for their abilities to innovate and make the most of technology, don't bother to establish an internet presence, their clients (and judges and opposing counsel and GALs, etc) will end up getting their information about them....here.

Or I suppose searchers can just ask me about them

2008-06-25T11:39:00.003-04:00

I've written and commented about it before, but I just can't help but keep scratching my head.

How is it even possible that a brand new agency that just came into existence in 2007, and which has now had a year to get some basic infrastructure built, still has no internet presence at all?

I'm speaking of the RCs, or the OCCRCs, or whatever you want to call them. Try the search engine of your choice to try to find out something about your new lawyer and her office if you are a parent in a dependency case. Most of the time, you will only find this blog.

Here are the last four searches that brought readers to this blog:

1: philip massa attorney florida -- google result #7, higher results reprintings FACDL opinion in Supreme Court.

2: 19th circuit regional conflict counsel -- google result #5, higher results from stale news article and state budget items.

3: phillip j. massa defense attorney florida -- google result #1.

4: dependency lawyer in ocala -- google results #4 and 6.

It's like this every day. I get people coming here looking for information on Jeff Deen, or Jackson Flyte, or the others, and this absurdly simple and unimportant blog is the information people find on the web. I used to think that fact would make some of them more friendly with the idea of exchanging information, but I was wrong about that.

But why are internet searchers finding this site and not information directly from the RCs? Because the RCs have exactly zero web presence of their own.

Come on already. Your clients are poor, but they use the internet too.

New JAC contract is up

2008-06-25T11:19:00.005-04:00

It's mean; it's onerous; it's insulting.

But it is available if you intend to keep on taking dependency appointments after July 1, that is, after five days from now.

So here it is. Is anyone going to re-up?

By the way, I note, (if I am reading the appropriations bill correctly), the budget for fiscal year 2008 for court-appointed counsel in civil and dependency cases is $5.5 million statewide. I wonder how much of that will be eaten up by 2007 billings that just don't happen to be paid yet as of June 30th. I alone have a half-dozen audit deficiency responses for which I've been waiting for JAC to make a decision for over eight months.

Meanwhile, back in Kansas

2008-06-11T18:47:00.001-04:00

The head of the state's child welfare agency was recorded in a meeting with a family advocacy group saying that Sedgwick County prosecutors have "bullied" social workers into putting information they don't agree with in affidavits. Those affidavits are used to decide whether children remain in protective custody or are returned to their parents..

That's just crazy talk. If someone claims to be acting in a child's interest and happens to be a government employee, they are immune from normal human foibles and pressures, no?

Turn and face the strain (ch-ch-changes)

2008-06-11T17:37:00.004-04:00

Thanks to a C_LS attorney for alerting me to the changes to Chapter 39 set to take effect July 1, 2008. Here is a link to the revisions so you can read for yourself.

Allow me to highlight a few of the more interesting ones:

39.01(1); The definition of abandonment is changed. I note that a parent must now maintain (I quote) a "positive" relationship with a child to avoid being guilty of abandonment. One supposes that it is not the parent and child who will be deciding if their relationship is "positive".

39.01(14) adds a new definition, that of "child who has exhibited inappropriate sexual behavior" while not defining what is inappropriate except to say that it is a child under age 12 who is found by either the court or DCF to have committed an inappropriate sexual act. That seems rather broad and subjective to me, and snags everything from typical victim behavior to self-exploration to innocent mimicry of something a child has seen (all depending on the subjective personal standards of the DCF worker) and places it all under the same heading with budding predators. Until someone can explain to me why this change was necessary, it worries me. Section 39.201 also seems to require such children to be treated as offenders and automatically referred to law enforcement.

39.301(39)(g) adds to the definition of harm any baby who is born with any amount of alcohol or metabolite of a controlled substance in his or her body, and deletes the previous requirement of a showing that the child was adversely affected. Wow. This is also added as a ground for TPR (39.8055(1)(k))if the mother had any other child adjudicated as drug exposed. I'll leave it to others for now to explain why this is probably a step in the wrong direction.

39.301(16)(a); Mildly interesting. The Department no longer has to conclude an investigation within 60 days if there is a related and ongoing criminal investigation.

39.504(1); Very interesting, mostly for what is deleted in this section. DCF no longer must file a petition, that is, actually open a judicial dependency case, in order to file for an injunction to "prevent any act of child abuse". We are all familiar with injunctions issued under Chapter 39, but in the past those were within the context of an ongoing judicial case in which parents are provided attorneys.

No more. Now, so long as DCF is conducting an investigation, which may now continue for an indefinite period of time under certain conditions, DCF is relieved of its responsibility to attempt family preservation and/or provide services and to file a petition to which the parents could respond and be provided legal counsel. I hope I'm not making too much of it, but read the revision and tell me what you think. DCF now has a new way to respond to a report: file for an injunction (which might never expire -- this is a change from when it used to end at disposition, that is, after a normal adjudication of the case) and walk away from the situation.

Another step in the wrong direction. By the way, the standard for the injunction is not probable cause, but "reasonable cause". Very broad, that. It seems to me that any anonymous hotline call in and of itself could be treated as "reasonable cause" if it alleges the correct things. Ask for an injunction, get an order disallowing any and all contact between a parent and child, and voila, case closed, DCF's work is done. No appointed lawyers, no services, no fuss, no muss.

The C_LS attorney who tipped me to this change says he doesn't intend to use that provision. I believe him, until and unless his superiors make him. Unfortunately, he's not the only C_LS attorney in the state.

39.507(7)(a); From now on there will be only one adjudication of dependency. There won't be separate trials for different parents. You need to be aware of this, because if you have a non-offending parent, particularly one who is only brought into the case post-dispo, you need to avail yourself of your evidentiary hearing required by the new 39.507(7)(b).

And finally, of the most interesting and dramatic changes:

39.806(1)(e)(1): Our clients now have 9 months to complete a case plan, not 12. This 25% reduction in their ability to achieve reunification coincides neatly with the reduction of their attorney's compensation by 20%, doesn't it?

Legislatively speaking, this has not been a good year for family preservation.

I should never have doubted you

2008-06-09T13:25:00.002-04:00

Readers have been tipping me to the fact that the legislature has cut the flat fee for dependency cases by 20% for several weeks now, but I was never able to find it in writing. Why, because reading the appropriations bill conference report is like....well, think of something boring and frustrating at the same time...like trying to participate in a permanency staffing, or kissing someone you don't even like who is much shorter than you are.

Anyway, it's there, and it's true. Our flat fee of $1,000 for the first year of a dependency case is going down to $800 in just over three weeks.

I'm not going to rant here about the legislature's shortsightedness, lack of understanding of opportunity cost, or inability to grasp the true cost, fiscal and otherwise, of having any child in foster care who might not have been with a skilled and prepared defense of her parents.

I will wonder both aloud and internally how much longer I will stay in dependency defense, and wonder how long you will.

The ethics complaint letter against the 4th RC

2008-05-29T22:09:00.003-04:00

OK, now that it has been published on other websites and made news, I'll post the email I got on March 31st.

I am not vouching for the accuracy of any of it, but since it's legitimate (that is, non-blog) news, it's time to reprint the whole thing, so her you go; draw your own conclusions:

Please let the following letter serve as my complaint against the Office of the Regional Conflict Counsel 4th District (hereinafter referred to as "RCC") being initiated pursuant to Florida Statute 112.3187 5(b), essentially claiming gross mismanagement, a continuous pattern of managerial abuses, wrongful or arbitrary and capricious acts and conduct that may have a substantial adverse economic impact.

After a longstanding professional relationship with Judith Migdal-Mack and Michelle Migdal of Migdal & Migdal P.A., private attorneys hired as Chief Assistants of the Civil Division to Mr. Massa, in October 2007, I accepted a position with the RCC as a Managing Attorney for the 19th Judicial Circuit in the Civil and Mental Health Division. At that time the new office was facing litigation claiming that Mr. Massa’s appointed position was unconstitutional. My office employment began in January 2008 although I attended organizational meetings at the Migdal’s law office prior to that.

The position that I accepted was to be based out of Stuart Florida although I was

responsible for court coverage of the civil cases in St. Lucie, Indian River and Okeechobee Counties. I was told that until the Stuart office opened I would be reimbursed for my mileage and would work out of the West Palm Beach office.

However at the time of my hire, the RCC 4th District did not have an operating state office. The office was being set- up and run out of the private practice owned and operated for over twenty years by the Migdal & Migdal P.A. This office was located in Boynton Beach Florida. The Migdals were responsible for the creation, organization and staffing of the civil division in the 15th, 19th, and 17th Judicial Circuits. Mr. Massa, myself and the other managing attorneys were given keys to this private law office and allowed to use the office equipment and computers free of charge. The 4th District RCC operated out of the private law office of Migdal & Migdal from October 2007 until mid-January 2008 without any reimbursement for the use of the equipment or space.

I was further advised by Mr. Massa of the challenges this new agency faced and I assured him of my willingness and commitment to the mission of the RCC. I agreed to take the position because of my knowledge and faith in Judith and Michelle Migdal’s ethics and organization skills. They were willing to close their practice to work for the RCC and Mr. Massa and that allowed me the faith and determination to leave my job and work with them in this new and exciting project. Mr. Massa assured us of his desire to reward all who were willing to take on the challenges this office faced at the onset. The salary that was offered was lower than I requested but Mr. Massa indicated that although he could not pay the requested amount, he would reward the attorneys who worked with him in the beginning to set-up this agency once he was up and running.

My commitment to this new agency extended to my following the lead of the Chief Assistants and agreeing to use my own resources to help with the new office. Mr. Massa was having difficulty securing space for his new offices. We were required to continue to use our homes, cell phones, internet services, home computers and printers without reimbursement. The Migdals and myself worked tirelessly to establish relationships in the 19th Circuit and to hire the attorneys needed to cover those four counties. We went about the administrative aspect of managing and setting up the only space finally secured in the 19th Circuit in downtown Fort Pierce.

At the beginning of March 2008 the 15th and 19th Circuits Civil Divisions were fully staffed and located in state leased office space. The staff in the 19th Circuit were notified of a reorganization to the management of the office without my knowledge or presence. As Managing Attorney I was not consulted or notified and was not even present when the news was told to my staff. Mr. Massa removed the Migdals from their position in the 19th Circuit and placed a long term friend, Jennifer Hixson in charge of the 19th Circuit’s Civil and Criminal Divisions . Mr. Massa stated that he had overhired for the 19th Circuit and he decided to reorganize management personnel and the manner in which the office operates. The friend that he hired possessed 6 months experience working in dependency law and was clearly without the necessary qualifications for the position.

Once the change in management came into effect, the lack of understanding or respect for the dependency system and the rights of the children to permanency became clear. A practice which engaged unethical acts began. The rights of the indigent people we have been appointed to represent and protect were unprotected. The management team which included the Office Administrator, Liza Brown, housed in the Fort Pierce office, created a hostile, offensive, abusive work environment from the onset, by engaging crude and condescending behavior. Attorneys were expected to perform acts that were not part of their job duties and have been chastised for their inability or unwillingness to do so. The Office Administrator failed to supply employees with answers to much needed policy questions with regard to the amount of annual or sick leave and the manner in which this is accrued. Instead she lied and mischaracterized information and has failed to provide any concrete answers to questions about procedures and benefits. She regularly demeaned support staff and criticized employees for seeking personnel answers on the State of Florida’s People First website. When confronted about representations that were made by both Mr. Massa and the administrator, the administrator described these representations as "myths" and employees as being misinformed but failed to correct the errors in communication. Moreover, any questions regarding issues that effect employees were treated as complaints and the attorney or support staff was criticized for requesting any information.

At the beginning of March 2008 when the friend, Ms. Hixson was appointed as Assistant Chief in the 19th Circuit a policy of personal harassment towards myself began. Ms. Hixson job duties have mostly consisted of taking attendance and treating professionals in a manner that would suggest she is not aware of what being a professional means. Ms. Hixson had been working part-time for the agency in Vero Beach. She claimed her caseload was much larger than it was and she was too busy to actually spend any time in the Fort Pierce office with her new staff. Ms. Hixson met with me at the Martin County Court once and held a ten minute conversation when she questioned how I felt about handling a jury trial on a felony or misdemeanor criminal cases. My response was that I was not a criminal attorney and I did not feel comfortable with this. I informed Mr. Massa and Ms. Hixson that I would be willing to learn how to handle those types of serious criminal cases if I was giving the opportunity to observe other attorneys and training. I also asked for some additional time to review the statutes and rules of criminal procedure. I indicated that it would not be ethical for me to represent a defendant in a criminal proceeding. She indicated to me that the new plan for the office was to now require me to handle misdemeanor and possibly felony cases immediately and that I could review the statutes and rules on my own time. No further discussion was had about this matter. She further indicated that the newly hired attorneys in Fort Pierce could handle the delinquency cases without any training. She indicated that such representation was simple work because the children charged with serious crimes where just minors and since they did not face any jail time whatever result would not be significant. I once again contacted Mr. Massa to voice my concerns regarding his offices' demand that I practice in an unethical manner representing criminal defendants. I received no response.

I was then informed that there was a crisis in the 19th Circuit Criminal Division (The crisis was caused by the former Criminal Chief, Mike Takiff failing to organize or staff the 19th Circuit. This poor management by Mr. Takiff led to his promotion to Chief Assistant responsible for the criminal and civil divisions in the 17th Circuit. Two months into the process, and he still had not even introduced himself to the judges of the 19th Circuit). The Criminal division continued to miss hearings, orders were lost, and there was no organization or record of criminal cases received from the courts. Mr. Garcia, Deputy Chief admitted to me that Mr. Massa's communication skills were poor and that he himself might have handled these changes in the 19th circuit differently. He also admitted that Mr. Massa reorganization of management was not handled appropriately.

Mrs. Hixson has made it clear to me that she was hired to police our office and treat me as if I had not been performing my job for the past three months. She continued to argue that all attorneys could handle felony cases without training. In addition, her purpose appears to be to create or manufacture a record that would support my termination. She continued to call or email me numerous times during the day to ask me my location.

On March 17th, 2008 I was treated with disrespect and embarrassed in front of my peers by Mr. Massa. I had no hearings scheduled in Fort Pierce; I attempted to work out of the West Palm Beach Office. Mr. Massa returned to the office and was furious to see me there. He started yelling at me and telling me that he did not want me in the West Palm Beach Office he wanted me in the Fort Pierce Office, and if I did not start getting some criminal cases out there, he would have to start firing people. I advised him that I was not hired to work out of Fort Pierce on a daily basis and he told me that since the Stuart Office was not ready he wanted me in Fort Pierce. He insisted that I leave the West Palm Office immediately. At approximately 3pm. I packed my bags and went home for a late lunch. At that time Jennifer Hixson called my home, she later sent me an email questioning why I was at home. Since Mr. Massa indicated that I was not allowed to visit or work out of the West Palm Beach office without prior approval from him. I had previously been allowed to work remotely because of the lack of internet access in the Fort Pierce office and the fact that I did not have an office space in Fort Pierce; I worked at home until 7:00pm on that date. To date no office policy on this issue was provided. However the past use of the Migdals’ office equipment and space without reimbursement and the use of home computers and printers by all employees had been encouraged and condoned by Mr. Massa.

On March 14th, Mr. Massa advised me that our Fort Pierce office was having a meeting on March 28th and immediately following the meeting he wished to discuss my "unauthorized absence from work on March 17th." He also told me that Ms. Hixson was my only supervisor and later advised me that he would not longer pay my mileage from West Palm Beach. Additionally, I was expected to immediately start taking criminal cases. Upon this announcement, I once again sent an email to both Mr. Massa and Ms. Hixson requesting training in criminal law. I asked for additional time to review the rules and observe other counsel. Mr. Massa never responded to that email. Ms. Hixson's response was that I must immediately represent the criminal defendants regardless of the ethical considerations and concerns I have voiced. The RCC 4th District apparently was not concerned with the ethical violations, or the rights of the accused to full and fair representation.

In the last two weeks it has become painfully obvious to me Mr. Massa and Ms. Hixson’s intentions. My position apparently had been modified without discussion. I was criticized for attempting to secure information from a court clerk on a criminal case that the office had been appointed to. When a client called the office looking for their attorney, I tried to locate the client’s information. I could not secure any file or information from Mr. Takiff and had to consult the clerk. The Court file indicated that the office had been appointed weeks before and that the order had been faxed to Mr. Takiff’s personal home fax machine. The office had no record of the order, no file, and no information. My attempts to help the client were criticized by my superiors. I was advised in no uncertain terms that I did not have any authority to speak to the clerk of the court, provide directives or request documentation.

Mr. Massa has spoken to other attorneys in the office to request the opinions of my job performance and work ethics. He has told these attorneys that he was considering terminating my employment. He has never spoken to me regarding my job performance. Instead he has engaged in a secretive harassment technique by communicating with other attorneys about me. Mr. Massa has engaging in slander in making such statements regarding the quality of my work. Mr. Massa wanted to promote his friend Ms. Hixson and it is clear that he can not justify both my and her existence in the 19th Circuit. Additionally, because Mr. Massa has failed to adequately staff attorneys to handle the criminal caseloads in the 19th circuit, and is attempting to fix his errors by requiring the untrained civil attorneys to handle criminal matters. The attorneys including myself were never consulted and never agreed to handle such criminal matters. On March 24, 2008, Mr. Massa terminated the employment of Judith Migdal-Mack and Michelle Migdal without any notice or explanation. These two Chief Assistants were the original organizers of the Civil Division. Clearly Mr. Massa knew that the Migdals would not agree to the ethical misconduct being requested of the civil attorneys.

Therefore the RCC 4th District has engaged in continuing behavior that is inappropriate and unethical and all of the above is supported by documentation currently in my possession and available upon request. As indicated in the many examples provided in the letter, the RCC 4th District has exhibited illegal behavior that includes:

· Bullying Creating a hostile work environment ( threatening to fire employees if they do not handle criminal cases because his manager failed to adequately staff), creating a negative and unhealthy environment that in which is it impossible to work effectively.

· Poor communication- The RCC has failed to provide any feedback on performance, any information regarding policy and procedures or job requirements. Mr. Massa and his staff have communicated with assumptions and lack of direction. (The RCC has never provided information regarding leave etc.)

· Engaging in micromanaging-expecting constant reports from attorneys. (i.e., sending email questioning where Managers are and what they are doing)

· Disorganization and indecision- Failure to staff the 19th circuit criminal division and relying on the untrained civil attorneys to handle criminal hearings.

· Discourtesy- Mr. Massa, Mr.Garcia, Ms. Brown and Ms. Hixson fail to offer common courtesies, or treat employees with common dignity and respect. The disparaging manner to which attorneys and support staff have been treated is unacceptable and has resulted in a desire to limit any conversation or interaction. Two members of the support staff left the West Palm Beach office and filed complaints with the Governor’s office regarding such treatment.

· The unequal treatment of employees ( Mr. Massa recently terminated the employment of Michelle Migdal and Judith Migdal-Mack without any prior warning or notification and without justification). They were not consulted on any management or policy changes because Mr. Massa was aware that their strong support of excellent representation for all children and adults would conflict with his plans for the agency.

· The RCC led by Mr. Massa and Mr. Garcia have lied and fabricated situations to suit their purposes and plans for the agency. Job descriptions, reimbursements, parking spaces, etc. were promised but never provided.

· The RCC has imposed unreasonable demands and now is attempting to enforce policies that have never been communicated to staff. Such expectations are unreasonable and allow for only failure. ( He has required that I go to an office daily in which I was not hired, where I do not possess an office or a desk and refuses to reimburse me for mileage when that was previously promised).

It is clear to me that Mr. Massa's failures, inadequacies, lack of communication skills and poor management has defeated the purpose for which he was appointed and contradict the Statute that created his position. The level of mismanagement, misconduct, and mistreatment of employees in RCC 4th District demands attention. Please feel free to contact me to discuss these issues and for further information. Thank you for your attention and time.

sloooooow blogging

2008-05-29T22:00:00.003-04:00

OK, so I've gone for a full week.

It's not that there isn't any dependency news, in fact there is plenty this week.

And things have been interesting here in Central Florida this week in dependency court. We've had some firsts.

I just haven't had time for the bloggin' thing. Sorry. So in the next post you get what I've been promising: the ethics complaint email in its entirety.

Texas FPS files appeal to Texas Supreme Court

2008-05-23T16:20:00.003-04:00

To briefly follow up on a couple of posts ago, there are already documents up on the Texas Supreme Court website.

Texas Family Protective Services' emergency motion can be read here. Their mandamus petition is here.

Just skimming the emergency motion, I find this irony: the State of Texas claims it cannot return the children subject to the appellate order because they don't know who those children are. It wants to shift the burden of establishing a basic jurisdictional element to the parents from whom the kids were taken.

This is serious business, but I can't help but note that "Duke Hooten" is a cool name for an appellate attorney.

Everyone have a great Memorial Day weekend. I'll be remembering a fallen friend. We'll keep you updated on this.

The ethics complaint against 4th RC goes public

2008-05-22T17:15:00.002-04:00

Now that it's out in the regular media, I'll share more in the future of my emails on this topic.

I'll try to get you an update from Ms. Jackson as well.

So here you go:

A complaint filed with the governor’s inspector general offers a damning glimpse of early efforts by the regional conflict counsel office based in West Palm Beach.

Attorney Nicole Hunt Jackson, who worked at the Stuart office for four months, sent the complaint claiming mismanagement and “a continuous pattern of managerial abuses” three weeks before she was fired.

I doubt you'll regret it if you read the whole thing.

I'll go ahead and post the text of the entire post tomorrow.

Good news out of Texas

2008-05-22T17:08:00.003-04:00

Texas CPS, as Vizinni:

"Imminent! Urgent!"

Texas 3rd District Court of Appeals, as Inigo Montoya:

"You keep using those words. I do not think they mean what you think they mean."

Here's the decision. Footnotes 9 - 11 get right to the point.

Why I keep writing about the Texas FLDS case

2008-05-21T16:15:00.006-04:00

Warning: long post follows. You know how lawyers are when a microphone, podium, or keyboard are nearby.

First, to get to the question posed by my subject line, you can think of Pastor Niemoeller.

I wrote a post last week with an update in the FLDS case. I've never actually explained that Texas case here in this blog on the assumption that readers would already know about it. If you are not at all familiar with it, here is a brief timeline of the first events in the case at this link.

It is not my intention to behave as if I am a defense lawyer for any of these parents, and comment accordingly. I (think) I know better than to assume that I have all of the pertinent information with only news reports and commentary to go on.

I'm still troubled by the "class action" and guilt-by-association nature of this whole thing; I am troubled by (as the presiding judge described it) the cattle call that was the shelter review hearing, or whatever they call it in Texas. I'm troubled that in the cases of 463 children sheltered on an anonymous phone call that turns out was probably a false report, not even one child can be returned to either parent's custody under any circumstances so far. That fact alone makes this effort on the part of Texas, no matter how good intentions were or are, a qualified failure.

I keep writing about this case for the same reason I continue to represent parents in dependency court: the system hurts kids. A lot. In an ongoing and relentless way.

With that said, I do regret the title I put on that earlier post, "If you are still following it. If you care." The first part of the title came from a sense that this very important case had quickly faded from public awareness. The second part of my title was a bad idea. It sounds accusatory now that I read it again. What I meant by "if you care" was simply that some people are following it and find it to be of great significance and others are not. I apologize for the tone of that phrase.

I got one comment to that post, which is actually a lot for this tiny blog. That comment is the inspiration for this post. Here it is in its entirety:

Not to restate the obvious but let's not forget that more than 40 girls under 16 (that's roguhly%10) are or were pregnant when the authorities took custody. The fathers of the babies are almost exclusively adults and the girls' parents were well aware and did nothing. Without the religious component it is just a bunch of incest and capital sexual battery charges for the men. If this was happening in a trailer park in a bad section of town noone would be upset that they took these children from home that they were being forced to have sex and marry at 12 and 13. oh.. and poligamy is illegal in every state. None of that gives the state the right to violate rights or not follow correct procedure but they have done their best under a very unique and tough situation.

We have some areas of agreement. I agree we can mentally put aside the religious component and analyze the case in other ways. We agree that the case, if proven, should come down to whether or not there was incest or sexual exploitation. We agree that due process is important.

We have some areas of disagreement. I'm not sure if anyone knows how many of the teenage girls are pregnant -- for instance:

Earlier this morning at the San Angelo courthouse, a lawyer for a 14-year-old girl that is on a list of so-called "disputed minors" said she is not pregnant as Texas child welfare authorities have alleged.
"My client does not have children. (She) is not pregnant. She's the youngest on the list of disputed minors," said Andrea Sloan.
The judge hearing the case objected, saying that was not what the hearing was about. But Sloan pressed forward.
"The department is communicating to the public that there are 14-year olds who are pregnant," she said.

Even so, the teenage pregnancy rate is, in fact, very significant. Using 2002 data, I see that the pregnancy rate for Texas girls aged 13 to 17 is 28.5 per 1000. CNN reports two days ago that CPS keeps changing the number because it keeps turning out that women they were calling "girls" are in fact adults. My math, based on earlier CPS statements, makes only a possible 4 pregnant teenagers left. CNN thinks 5 or 6. That makes the teen pregnancy rate at or less than among Texans who don't live on the FLDS ranch. That's a far cry from CPS' earlier claims that "half" of the children were pregnant. I wonder what method they used to determine pregnant status a month ago?

Am I allowed, as a dependency defense lawyer who sees the effects of child removals all the time, to just simply have no tolerance for incompetence? Did you know that Texas CPS put a 22-year-old woman in this case in foster care despite her protestations that she was not, in fact, a child?

The commenter and I disagree, sort of, on the polygamy aspect. The way I see it, it is not lawful to issue a marriage license to someone who is already married to another. It is not, however, against the law to live in an intimate relationship with more than one person without benefit of government sanction of the arrangement, and call your significant others "wife" or anything else you want to call them. Especially after the Lawrence v. Texas case, I simply don't see how polygamy can be dispositive, if even relevant, in a child dependency case. I don't approve of that, by the way, and think polygamy is a bad thing; but what the Supreme Court gives, the Supreme Court takes away, and the polygamy aspect doesn't matter any more to a child removal proceeding than a finding that a parent had failed to file an income tax return last year (which I remind you is illegal in all 50 states).

This, finally, brings me to the only really substantive thing with which my commenter (and thank you for commenting) and I disagree: that Texas CPS has done their best under a very unique and tough situation.

I couldn't disagree more. Remove every child in sight and let the judge sort them out is practically the definition of not doing their best. There is absolutely no effort involved for CPS workers in this case than there would be on any given day at the office. Get an anonymous call, get police to escort you, take each and every kid, put on a few witnesses, churn out a few hundred identical copies of the same caseplan, and keep your job.

I can tell you from experience that the case workers (or family case managers, as they like to be called now) and protective investigators who really and truly do their best, who possess good instincts coupled with courage and confidence tend to get fired.

I am now going to give you a link to another blog with several links to individual statements of mental health professionals who were involved in the Texas case. I recommend them to you. They will answer any questions you may have about whether or not case workers are doing their best.

Here you go. You really should read at least a couple of them. These people have been treated horribly.

See you in Vegas?

2008-05-21T14:34:00.002-04:00

The National Child Abuse and Resource Center's next international conference will be September 18-20 in Las Vegas.

I attended the conference two years ago. It is excellent. You get a boatload of CLE, and it's fun to see your colleagues not only outside of juvenile court, but in Vegas.

There is a group rate, my friends, so use this link to contact me, and we can construct a Florida Dependency Defenders Group and take advantage of the better rate.

Oh, and is anyone going to the "2008 Dependency Seminar" at the Tampa Stetson Campus on June 9?

The 4th Amendment lives!

2008-05-21T13:35:00.002-04:00

The Fourth Amendment not only actually applies even when there is a child involved, but even government social workers are subject to the United States Constitution, according to a federal court opinion issued Monday.

Since even we attorneys don't read it often enough, here is the text of the 4th Amendment:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

Click on this link to read the Federal 7th Circuit opinion in Michael C. v. Gresbach. Here's one of the more interesting portions of the opinion:

"[W]e find that a reasonable child welfare worker would have known that conducting a search of a child's body under his clothes, on private property without consent or the presence of any other exception to the warrant requirement of the Fourth Amendment, is in direct violation of the child's constitutional right to be free from unreasonable searches...[W]e do not believe that requiring a child welfare caseworker to act in accordance with basic Fourth Amendment principles is an undue burden on the child welfare system, particularly when it is necessary to conduct an examination of a child's body, which is undoubtedly frightening, humiliating, and intrusive to the child...it is a violation of a child's constitutional rights to conduct a search of a child at a private school without warrant or probable cause, consent, or exigent circumstances."

A few things:

"Exigent circumstances" is defined on page 14 of the opinion simply as when life or limb is in jeopardy. Two, note that the 4th Amendment right vindicated in this opinion is one attached to the alleged child victim of abuse (abandonment, or neglect), and not to the accused parent. Third, there is a clear distinction here between private property and public property, which you can only read to mean one thing: public schools. It seems to be presumed that school officials not only can, but always will, consent to children being searched.

If you are stil following it. If you care.

2008-05-14T23:27:00.000-04:00

Eleven employees of the Hill Country Community Mental Health-Mental Retardation Center recently provided written reports of their experiences at the request of the regional governing board. Each expressed frustration — and some anger — at how CPS treated the children.

After hearing about their experiences at the makeshift shelters last month in San Angelo, Kight said he and the board felt the need to do something.

"We can't just stand by and let this happen as Americans," he said. "Hopefully, (Gov. Perry) will take some sort of action to get these parents back with their kids."

Wednesday night quick links

2008-05-14T22:51:00.002-04:00

It's a busy week. I apologize for not posting more; it's just a function of being in the trenches. Having a blog, liking being a writer, someone once said, is like having homework every day for the rest of your life.

First: budget decisions are coming soon. We hear that the chief judges and something called the "trial court budget commission" is meeting this week in Tampa. Stay tuned.

Second: Hey, wouldn't be cool if we dependency defense attorneys had a private message board on which to exchange ideas and gripes and rumors, and etc. More on that soon, but in the meantime, it already exists, and the sound of crickets chirping is starting to get to me.

Third: Via Drudge, I noticed this: It seems the Washington Post, rightly so, is concerned that up to 250 deportees, nationwide, have been administered psychotropic drugs against their will, and even a handful have been administered psychotropic drugs without a judge's order. That's bad. Here's hoping the Washington Post turns its eye to what happens to foster kids. 250 nationwide would seem so very quaint, wouldn't it?

Fourth: Now here's where things get interesting. You really need to read this. Seriously, if you are reading this blog because of an interest in dependency law, you need to read this. Click on the words you are reading right now to download the .pdf and read it.

I got the Manatee County court order at that link from the Justice Building blog (motto: The drivetime morning zoo of Florida legal blogs), which is a good read.

I wanted to excerpt some things from the order, but it's late, and I might get around to after tomorrow and Friday's trials. Suffice to say that attorney Joseph Campoli, with help it seems from FACDL, is something of a hero.

And The Honorable Judge Lee Haworth is an official Samurai Jurist. Faced with the impossible task of finding enough attorneys willing to take cases under the new law, Judge Haworth eyed that gordian knot, unsheathed his sword, and in 23 pages of his ruling made a solution, perhaps the only one possible.

Really, read what quite possibly is the most gratifying order denying an attorney his motion to withdraw you've ever read.

Another county won't pay for office space

2008-05-08T17:52:00.002-04:00

From TCPalm.com, this short article:

County commissioners Tuesday approved sending a letter to Gov. Charlie Crist telling him the county will not pay rent for a regional conflict counsel office required by the state.

The county was informed last year it would have to find office space for the Office of Criminal Conflict and Civil Regional Counsel, which represents defendants when the public defender's office has a conflict, besides handling other cases. The county made space for the office at the County Administrative Complex, but later found out the office head already rented space downtown without telling the county.

In the letter, Commission Chair Joe Smith said the county spent about $2,600 readying the space for the attorneys and had no intention of spending additional money for rent. The estimated rental cost per year is about $38,400.

The governor's office previously told the county the regional conflict counsel decided the county space was not amenable to its needs, but county officials said they were never told this. The expense comes at a time when the county is attempting to trim millions from its budget in light of property tax reform and lower property tax revenue.

There are three comments to the article. I found the second one interesting. You can click on the link to the article, and then the link to comments at the bottom of the story.

"I was happy when I was happy and sad when I was sad"

2008-05-05T18:23:00.002-04:00

The subject line is from a YouTube video of a former foster kid describing her state of normalcy when with her "regular mother" in contrast to when she was in foster care and drugged.

I'm plowing through several YouTube videos of foster care alumni primarily talking about, in their own words, having to take medication in foster care, among other issues.

That, in my opinion, is invaluable. For all the resources put into "giving children a voice", there is no replacement for, well, the actual voices of some of them, so I'm glad to see these making their way onto YouTube.

Below is a representative piece and is presented as a montage.

What really strikes me watching this is the extent to which these particular kids just didn't know what they were taking or why in any meaningful way (note the "goal in life" described by one young man at 4:36 in the video). This is a topic of growing concern for me lately, as I've got over forty children for whom I am Attorney ad Litem.

Correlation between pediatric fractures and nutrition

2008-05-05T18:17:00.002-04:00

For what it's worth, this is from an abstract of a piece in the latest Journal of Pediatrics:

CONCLUSIONS. We identified a significant association between a history of frequent fractures and hypercalcuria in children. We propose that the appropriate screening evaluation for children who present with a history of frequent fractures consists of a dietary history targeted at calcium and vitamin D intakes, a physical examination to assess for pubertal delay, and urinary calcium concentration/creatinine ratio determination to assess for hypercalcuria. Children with abnormalities in this screening should undergo dual-energy radiographic absorptiometry and appropriate evaluation.

Cuban custody case postscript

2008-05-05T16:52:00.002-04:00

I commented on the Izquierdo case last fall in the post at this link and a couple of others. Now there's an update from the Miami Herald, and it brings a couple of thoughts to mind.

First, it seems that DCF was quite incorrect when it argued that allowing the natural, non-offending father custody of his daughter would damage the child:

The 5-year-old with hazel eyes and a bouncy ponytail swung across the monkey bars as her Cuban father Rafael Izquierdo proudly watched nearby, ready to catch her.

"Look at me go Papi!" she squealed, just before she dropped into his waiting arms.

In the six months since Izquierdo regained custody of his young daughter after a high-profile court case, the two have developed a deep bond. It is one they never shared when the girl lived in Cuba with her mother, let alone after she first came to the U.S. and sparked an intense, international custody battle.

Second, I recommend the article to you if only to read this:

"With all those psychologists, and therapists, it was confusing. She was suffering. In the long run, they were going to damage her. I had to dance to their dance," Izquierdo said of the agreement.

....from the mouths of communist pig farmers....

It's bound to happen

2008-05-05T16:36:00.002-04:00

I keep being told that our local Regional Counsel tells his employees that he expects the legislature to further cut the flat rates paid to court appointed attorneys. I don't know if that's true, but this article out of Sarasota provides further evidence that the system is already past the breaking point (excerpt follows):

"Criminal defense attorney Joe Campoli is stuck with a case that will pay him around $5 an hour for three months.

The state of Florida never paid handsomely for lawyers who defend poor people accused of crimes, but Campoli says the state's low fee and his office overhead mean he will lose money.

Campoli is the first to challenge Florida's new system for compensating private attorneys who do defense work for the state of Florida, saying it would ruin his law practice.

"I'm not sure I could recover," Campoli testified Thursday.

Ultimately, 12th Circuit Chief Judge Lee Haworth will have to make a ruling that weighs the rights of a 16-year-old defendant to have a competent attorney against those of Campoli, who has practiced law for 12 years.

The new system offers a flat fee to private attorneys for representing criminal cases where the public defender cannot because of a conflict.

Johnny Vazquez's case in Manatee County is a rare situation. There are 14 co-defendants, and the gang case has complicated racketeering charges, with more than 300 witnesses and piles of documents."

With 14 co-defendants, assuming that there is a conflict between each, that leaves 12 defendants left after the PD and the RC get theirs. Are we to gather from this that there are not 12 attorneys willingly on the rotation list to handle these cases?

Bottom line: Even when and if the RCs get fully operational, private attorneys available for appointment at a reasonable rate will be needed, period. There is not a way around that, and the sooner we different tribes in the defense field accept that and treat delivery of legal services to the indigent as a system, rather than a collection of systems, the better. If that seems vague, I mean only that private counsel, albeit less of them perhaps than there were before, are part of the solution, and not part of an "us vs. them" kind of problem, and solutions ought to be appreciated and funded.

"Disheartened"

2008-05-05T15:45:00.005-04:00

(An open letter to Bob Butterworth)

One conversation with one attorney is not a scientific sample, but it is one interesting conversation nonetheless.

Chatting with a C_LS (motto "What did we ever need the child welfare part, anyway") attorney about last Friday's C_LS strategic planning pep rally involving many of DCF's lawyers in Orlando, (sorry for the awkward sentence structure there -- I know in German it's supposed to go time, negation, manner, place, in that order -- that seems to work in English as well, he summed up his feelings about the big meeting as leaving him disheartened.

He elaborated a bit, feeling like the main thrust of the meeting to explain how CWLS was going to become C_LS, a "statewide law firm" was to make it clear that all of the new bosses are outsiders, that is, that there was a certain vibe that can be described as "you (current attorneys) are the problem; we are not of you or from you, and are here to fix the problem."

With respect to DCF Secretary Butterworth (and it is genuine respect), I think that is the wrong approach (if, indeed, one man's "vibe" was accurate). DCF's lawyers aren't the problem. Yes, there are some who are drawn to government lawyer jobs because compensation and job security bear little relationship to the quality of one's legal skills or results; but such DCF attorneys are the minority.

Most of the DCF attorneys I know are good lawyers, and many had significant legal accomplishments prior to going to work for DCF. They struggle, however, with bringing legal standards and ethics to a culture that operates very differently. I'm told that one of the positive things that came out of the big meeting was an attempt to clarify who the DCF attorney's client is. That is necessary, and a question I resolutely answered for myself in my first week when I myself was a DCF attorney.

That's not enough, though. C_LS needs to be empowered to make reasonable demands upon their investigators and case managers with respect to gathering competent evidence and paying at least plausible lip service to the notion that there is such a thing as services to preserve a family. In other words, the People of Florida are not well served if the only way for a C_LS attorney to "win" a case is to separate parents from children and make every effort to keep it that way.

Before you turn CWLS into C_LS, consider simply making the requirements of CFOP (Children and Families Operating Procedure) 175-15(6)(c) actually work. That's already your policy, and there is no quality control on it. Also considering scrapping CFOP175-15(6)(f) entirely, and replace it with an internal quality control system withing the C_LS.

Dependency Defenders like movies, too

2008-05-02T19:16:00.002-04:00

With almost all of DCF's attorneys safely confined to one conference hall today, I went and saw Iron Man.

I won't review it here except for the following: No depictions of social workers or shelter hearings, great effects, only one outrageous product placement, and a final answer to the age old question of which kind of character is more evil, the guy with the goatee or the guy with the shaved head.

Stay through the credits.

Wednesday Topic Soup

2008-04-30T12:33:00.002-04:00

Since it's been over a week since I've posted anything, I'll make one post out of the various potential posts that have been rattling in my mind lately.

1. CLS (formerly CWLS) pow-wow is on tap for this Friday in Orlando. I'm considering popping in. I probably won't, though, but am open to any comments or observations from attendees. Incidentally, I don't understand the dropping of "Welfare" from "Child Welfare Legal Services". Just plain ol' "Child Legal Services" brings to mind an entity that specializes in suing Chuck E. Cheese over defective token dispensing machines.

2. Tampa public school teacher Stephanie Ragusa has been arrested for the third time in about a month for having sex with minors, which as we know is an act that is considered exploitive and abusive. When considered in the context of the actions of Texas in conducting class-action child removals, can someone explain to me why every single child of every single public school teacher in the Hillsborough County school district should not be immediately sheltered by DCF? If not, then why are the 400+ (the number keeps rising; Texas seems unable to simply count them correctly) children taken from the FLDS sect still -- every single one of them -- in foster care?

3. I've asked the question for years of licensed attorneys who specialize in dependency matters, and still can't find an answer to what ought to be a simple question: What really happens in practice to constitutional guarantees of freedom from unreasonable searches when the existence of a child is inserted into the fact pattern, and more importantly, why?

Anyway, a few weeks ago I won a shelter hearing. The judge found that there is no probable cause to shelter the children. DCF's attempt to establish supervision and jurisdiction over the family failed. Done. Over. As a practical matter, the judge noted that DCF often in such circumstances chooses to turn around and file what we call a "non-shelter petition", and as such set a status hearing later on to confirm whether or not that would be the case. The reason for this is judicial economy, and an effort to save money. Essentially I agree to sit in the shadows as defense attorney on the possibility that DCF will file a new petition, in which case I'll just crank back up and continue as attorney, rather than having discharged me when the shelter attempt failed and then appoint a new attorney later for the non-shelter.

All of this I understand, and in fact recommend as I am on board with helping out the court with efficiency.

What DCF does not understand is that in this twilight in-between period while I await a hypothetical future non-shelter action, there is simply no legal authority over the family. The shelter action was one case. It failed. The future, hypothetical and currently non-existent non-shelter case is a separate cause of action. It has to be. The elements are different, for one thing, and the issue of imminency has already been ruled upon.

That is of no matter to DCF. I get constant messages absolutely howling that the family is referring caseworkers to the father's attorney (me) instead of letting caseworkers inspect their home and children weekly, and are equally incensed that the parents are not "cooperating with services as required by the court"--that's in quotes because it is, in fact, a quote. A status report has been filed, and we all know what that means.

Mind you, I understand that there is a provision in Chapter 39 to obtain a court order to compel access to children if necessary during the investigation (PRE-SHELTER) phase of a DCF action. That's not what we're talking about here. In my case, we are past investigation and past judicial resolution of the matter in the parents' favor.

4. Item #2 is still bugging me. Seriously, Tampa school teachers, you are clearly members of a group of people who has at least one member with verified sexual charges against her. We have to take the Texas precedent with the FLDS sect seriously, so just go ahead and turn in your children.

5. Child support from poor parents. I'm whining a little here, but it seems odd to me think there is any important principle being redeemed when the state finds experts to opine that if you (a parent) allow child X around children Y and Z, you will be guilty of failure to protect, and then turn around and move for child support for child X.

In case I go another week between posts, everyone have a great weekend, and I hope all you C_LS attorneys enjoy your Friday meeting.

Keeping what children safe from whom??

2008-04-24T12:15:00.005-04:00

Need advice, encouragement, suggestions, something . . . anything ??. . . .

The new Keeping Children Safe Act is an example of a pendulum gone off its base. The scenario is that it was known that the parent-1 had a "sexual assault" over 27 years ago per the comprehensive behavioral assessment and predisposition study filed in June and July 2007. The dependency was based on the parent-1's incarceration on a drug charge and parent-2's substance abuse - no allegations of sexual abuse or physical abuse. Let me repeat there no allegations of sexual abuse of the subject children throughout the scenario at all. The case plan included parenting, substance abuse, housing, income, visitation. Fast forward to March, 2007, parent-1 has completed all tasks and even took more classes that required. Court finds substantial compliance and anticipates reunification upon positive home study. About the same time, a new baby is born and there is no probable cause as to the parent-1 - anticipate placement upon securing day care and home study. New comprehensive behavioral assessment is filed noting that it was a conviction for sexual battery from over 27 years ago - enter stage left the Guardian Ad Litem Program with a motion to restrict parent-1's contact under Keeping Children Safe Act.

If you have not read the statute, do so. Bizarre as it is, Parent-1 in the scenario is permitted only supervised contact pending an evidentiary hearing where Parent-1 has to rebut the presumption of detriment.

"Wait a minute", you exclaim, "I thought with substantial compliance as to the older kids and non-offending status as to the youngest child, Parent-1 is entitled to custody of the children absent a showing by someone else of detriment - and doesn't that showing have to amount to substantial competent evidence and be related to the children at issue???"

Ha Ha not under Keeping Children Safe Act. How is this constitutional???? In the scenario it was even pointed out to the court that this overreaching knee-jerk reaction to anything with the word sex in it would have the presumption apply even if the court had already reunited the children with Parent-1.

Is there anyone out there who has launched an attack on this statute?? I know there are no rulings yet, but are any pending?? Has anyone successfully defended a parent in rebutting the presumption??

Congratulations Tate High School

2008-04-22T15:39:00.002-04:00

On a lighter note than the usual subject matter here, I'd like to congratulate Tate High School of Pensacola for winning the statewide high school mock trial competition.

I know of this because my son was on another team that made it to the state level, but alas did not win. Since I know the quality of the work that my son's team did and the quality of its competition from watching much of the competition, I'm sure that Tate's victory is well deserved.

Really, you ought to volunteer to help judge or score these competitions sometime, if you never have.

Us vs. Them?

2008-04-18T10:58:00.004-04:00

In the interest of equal time, I will post, in its entirety, an email I got today. I get to preface it first, however.

This blog is not (and has never been) about attacking individual lawyers who work for the RCs on the basis of their expertise, ethics, or commitment to their clients. I am not an "us vs. them" kind of guy. I don't care about that; that's not the point.

The point, if you go to dependencydefense.com and read the bits about why the website exists, is (or was) to try to find solutions to the new order of things given to us by the legislature, and to be vigilant to see that parents didn't experience a sudden lack of quality representation. It was to that end that I emailed (repeatedly) all five of the Regional Counsels to invite them to discuss how the private bar could help them and work on training programs. None of them ever replied to me on that.

So the "point" of all this has evolved a bit, and now is more along the lines of simply reporting on a government agency run by government agents to help keep it accountable.

So that's a long preface. This is not "us vs. them", at least not from the point of view of the owner and author of this blog and its parent website. With no further delay, we visit the mailbag:

Though I am appointed as a private attorney, let me give you the other side. In the 2nd Circuit, the Regional Counsel’s Office has hired 3 experienced attorneys who previously worked both for DCF and as parent’s attorneys, and they are getting the majority of cases. It’s not perfect—they’re already overworked; whenever one of them quits, it’ll become impossible; and as State employees, they may never get a raise; but they’re doing pretty well.

On the other hand, I recently found out that a private attorney on one of my cases was appointed at Arraignment, negotiated with the Department to declare the parent non-offending, and was then discharged from the case, even though it remains open as to the child and other parent. The attorney gets $1,000 and the parent has no representation for the remainder of the case.

My comments: 1) of course they are already overworked. I sympathize, but that is not a good thing; 2) The private attorney you cite should not have done that. The flip side of that same coin, my friends, is that several of us have spent a long time on cases representing the interests of a parent only to have JAC protest, once it is over, that the parent is non-offending and as such the lawyer should not be paid (JAC can be found on either side of that question, depending upon who you ask). The bottom line is that the statute says that "parents" are entitled to counsel and does not distinguish between the rather imprecise and pragmatic terms we use for convenience, "offending and non-offending". So you are right to criticize that lawyer. I feel inspired to request an official Bar opinion on that so I can post it here.

Thanks for the email, by the way! Various points of view are welcome here.

[Update/amendment. It seems I cannot request a Bar opinion as I suggest above that I would, since the ethics lawyers are not supposed to accept requests regarding the conduct of one who is not the inquirer. Does anyone have an idea how we might legitimately get an opinion from the Bar on withdrawing from a "non-offending" parent. Since I've never done it and wouldn't consider doing it, I can't ask the question, it seems].

Double Hell

2008-04-18T10:37:00.003-04:00

As a follow-on to the post below, I have to say that I'd not followed the "Texas polygamy case" at all up until now. Check out this link to a detailed account of court events in what is a dependency case, and look for this excerpt:

10:24 a.m. - The attorney for a woman whose last name is Barlow objects to: lack of notice, the hearing’s format, and failure to meet requirements of the Texas code that entitles each child to a full adversarial hearing.

More attorneys make objections, and Judge Walther asks them to allow the court to get started. She says no perfect solution exists, and the state is required to get started after 14 days.

The judge tells the attorneys their objections are premature.

Maybe I'm missing something, but I can't imagine how those particular objections are premature in the context of the hearing that took place.

If 400 some children are not entitled to individual hearings, then why is that? Because it is hard to do? Let me put it this way: when the warrant was served on the compound, they didn't go with one law enforcement office and one social worker. They went with an armored personnel carrier, SWAT team, etc. They did that because they believed the scope of the situation requires that level of resources.

Likewise, fellow Americans, the scope of the fundamental interests at stake and the diversity of situations between each set of parents and each child involved, requires more than one hearing for everyone. If the State seeks to pursue this matter, it has to devote the resources to do it correctly, in the same manner that they approached the serving of the warrant with a cast of (dozens?hundreds?).

What we've got going on yesterday and continuing into today is specific testimony about some of the parents in the sect, which presumably is to be extrapolated out in order to make decisions for each and every one of the hundreds of children. Is it just me, or is that not right? Exactly when would it be "timely" to object that a particular child is entitled to a separate hearing, if it cannot be heard at the hearing that will remove him from (both of) his or her parents?

Oh Hell

2008-04-18T09:34:00.002-04:00

A court hearing to decide the fate of the 416 children swept up in a raid on a West Texas polygamous sect descended into farce Thursday, with hundreds of lawyers in two packed buildings shouting objections and the judge struggling to maintain order... As many feared, the proceedings turned into something of a circus—and a painfully slow one... Texas District Judge Barbara Walther struggled to keep order as she faced 100 lawyers in her 80-year-old Tom Green County courtroom and several hundred more participating over a grainy video feed from an ornate City Hall auditorium two blocks away.

The hearing disintegrated quickly into a barrage of shouted objections and attempts to file motions, with lawyers for the children objecting to objections made by the parents' attorneys. When the judge sustained an objection to the prolonged questioning of the state trooper, the lawyers cheered.

Upon another objection about the proper admission of medical records of the children, the judge threw up her hands.

"I assume most of you want to make the same objection. Can I have a universal, `Yes, Judge'?" she said.

In both buildings, the hundreds of lawyers stood and responded in unison: "Yes, Judge."...

Because of the high-profile nature of this case, these hundreds of attorneys are largely appearing pro bono. I wonder how many of them have any dependency law experience at all.

The "ethics complaint" serialization, part 2

2008-04-15T21:05:00.002-04:00

I've gotten criticism for posting this, even with the permission of its original author and the knowledge that it's been out there circulating in email for a few weeks.

I've gotten criticism for posting this without "naming names" and being more explicit.

I'll keep to the what I think is both right and useful, that being that I'll post what tends to illuminate both the emerging knowledge of disfunctionality (is that a word? by that I mean that if one seeks the appointment of one's governor to accomplish job A, then one ought to be accountable for whether or not he or she gets anywhere CLOSE to accomplishing job A, not to mention actually furthering the cause of anti-A [that being not providing competent and effective indigent defense services]).

So here is installment two (for context see here):

Once the change in management came into effect, the lack of understanding or respect for the dependency system and the rights of the children to permanency became clear. A practice which engaged unethical acts began. The rights of the indigent people we have been appointed to represent and protect were unprotected. The management team which included the Office Administrator, [name], housed in the [town] office, created a hostile, offensive, abusive work environment from the onset, by engaging crude and condescending behavior. Attorneys were expected to perform acts that were not part of their job duties and have been chastised for their inability or unwillingness to do so. The Office Administrator failed to supply employees with answers to much needed policy questions with regard to the amount of annual or sick leave and the manner in which this is accrued. Instead she lied and mischaracterized information and has failed to provide any concrete answers to questions about procedures and benefits. She regularly demeaned support staff and criticized employees for seeking personnel answers on the State of Florida’s People First website. When confronted about representations that were made by both [RC actual] and the administrator, the administrator described these representations as "myths" and employees as being misinformed but failed to correct the errors in communication. Moreover, any questions regarding issues that effect employees were treated as complaints and the attorney or support staff was criticized for requesting any information.

You're welcome, I guess

2008-04-14T17:33:00.002-04:00

There's an article about the 1st RC office in the Panama City News Herald today.

I liked this part:

“There have been enough private attorneys on the conflict list in Bay County so that up to this point, they’ve been able to shoulder the load until we’re up and fully running,” he said.

In other news, you may have noticed that took the week off from blogging. The serialization of the "ethics complaint email" will resume shortly. I think.

In other other news, I had a conversation today with one of our judges about JAC potentially "cracking down" on conflicts being declared between parents in dependency cases. I've discussed in several past posts exactly why there is nearly always a conflict, so I won't rehash that again just now. I'll just opine that appointing one attorney for all parents as a matter of policy is going to cause good ethical RC attorneys a lot of sleepless nights worrying about compromising their obligations as attorneys.

Sunday evening links

2008-04-06T19:55:00.002-04:00

If you are defending dependency actions in Florida, you should be aware of where to fine DCF's own internal operating procedures.

That's easy. Start at this link, and drill down as far as you need to go.

This link is a gold mine, if you know how to use it.

But you knew that already. Just a reminder.

Friday musings -- and more on ethics complaint

2008-04-03T22:51:00.003-04:00

First, the musings. I was on shelter duty today (Thursday) and noticed a couple of things. The first thing I noticed was that I had a new case that was truly significant. "Medical neglect" is a tricky thing when it is parents and one set of doctors vs. a 20-something social worker who has a doctor to consult who has a different opinion. Those are enormously important cases. It didn't go the way I'd hope, but I got a shelter review out of it and another three days to prepare for the next round. The second thing I noticed was something that I'd not noticed for the first time: I argued. I argued law and facts. I engaged the Department and challenged the judge. I presented testimony.

The attorney for the regional counsel didn't say a single word. Not one, though her client had the same position and concerns as my client had.

I'm just saying. If I'm right about this particular case and it gets dismissed, for my flat fee of $1,000 I'll not only save a family from being torn apart and a baby from enormous trauma, I'll save the taxpayers of Florida a big pile of cash. And people will still say that private counsel are the single biggest drain on the system.

OK, having indulged myself in posting that, I'll begin to serialize the email I got the other day. I've talked with some of the people involved, including the author of the ethics complaint. I have permission to post it here.

I am not including any names in what I reproduce here, because that's not the point. I don't care about politics or personalities; I care about the dependency defense system operating well. There are some lessons to be learned from what I'm going to post, even when keeping in mind that there are two sides to ever story.

Serialization part one (this is a complaint sent to the Governor's inspector general and to the Florida Bar by a former employee of one of the Regional Counsels):

"After a longstanding professional relationship with (defense attorneys A and B), private attorneys hired as Chief Assistants of the Civil Division to (an RC), in October 2007, I accepted a position with the RCC as a Managing Attorney for the (X)Judicial Circuit in the Civil and Mental Health Division. At that time the new office was facing litigation claiming that (RC's) appointed position was unconstitutional. My office employment began in January 2008 although I attended organizational meetings at the (attorneys A and B) law office prior to that.

The position that I accepted was to be based out of (a town) Florida although I was
responsible for court coverage of the civil cases in (three other) Counties. I was told that until the (town) office opened I would be reimbursed for my mileage and would work out of the (other, distant town) office.

However at the time of my hire, the RCC (X)District did not have an operating state office. The office was being set- up and run out of the private practice owned and operated for over twenty years by the (law office of attorneys A and B). This office was located in (town #3) Florida. The (attorneys A & B) were responsible for the creation, organization and staffing of the civil division in (3 different circuits). (The RC), myself and the other managing attorneys were given keys to this private law office and allowed to use the office equipment and computers free of charge. The ( ) District RCC operated out of the private law office of (Attorneys A & B) from October 2007 until mid-January 2008 without any reimbursement for the use of the equipment or space.

I was further advised by (RC) of the challenges this new agency faced and I assured him of my willingness and commitment to the mission of the RCC. I agreed to take the position because of my knowledge and faith in (attorneys A & B) ethics and organization skills. They were willing to close their practice to work for the RCC and (RC) and that allowed me the faith and determination to leave my job and work with them in this new and exciting project. (RC) assured us of his desire to reward all who were willing to take on the challenges this office faced at the onset. The salary that was offered was lower than I requested but (RC) indicated that although he could not pay the requested amount, he would reward the attorneys who worked with him in the beginning to set-up this agency once he was up and running.

My commitment to this new agency extended to my following the lead of the Chief Assistants and agreeing to use my own resources to help with the new office. (RC) was having difficulty securing space for his new offices. We were required to continue to use our homes, cell phones, internet services, home computers and printers without reimbursement. The (attorneys A & B) and myself worked tirelessly to establish relationships in the 19th Circuit and to hire the attorneys needed to cover those four counties. We went about the administrative aspect of managing and setting up the only space finally secured in the ( ) Circuit in downtown (town # 4).

At the beginning of March 2008 the ( ) Circuits Civil Divisions were fully staffed and located in state leased office space. The staff in the ( ) Circuit were notified of a reorganization to the management of the office without my knowledge or presence. As Managing Attorney I was not consulted or notified and was not even present when the news was told to my staff. (RC) removed the (attorneys A & B) from their position in the ( ) Circuit and placed a long term friend, (Friend of RC)in charge of the ( ) Circuit’s Civil and Criminal Divisions . (RC) stated that he had overhired for the ( ) Circuit and he decided to reorganize management personnel and the manner in which the office operates. The friend that he hired possessed 6 months experience working in dependency law and was clearly without the necessary qualifications for the position.

[note: all parentheses denote redactions on the part of the author of this blog.]

Part two of the serialization to follow.

From our user comments in re: ethic complaint

2008-04-01T22:47:00.005-04:00

My experience is that several hundred views of a post might yield a comment. Several hundred views of a post that really impacts readers will get a few. We got a few recently.

In any event, in case you don't read the comments to posts here, I repeat some interesting ones:

Number one:
I was informed recently by court staff that the RC for my District is telling Judges and court personnel that his office intends on representing both parents in Dependency cases. This tells me that he is trying to save his rear-end by trying to cut-out the registry attorneys entirely. Furthermore, back in November the RC was at the local FACDL meeting soliciting attorneys. He told the group that "He was the only game in town and that if you didn't sign on with him you will be left out in the cold. He also said that "Once his office gets up and running he was going to push the Legislature to reduce the flat fees for the registry appointments to prevent competition with his office."

Number two:
Fascinating is that that the ROC is greatly understaffed in Miami-Dade. I'm really surprised that the employees are willing to take this punishment. The question is for how long will the indigent clients; the workers and Florida voters accept it? People need to be informed of the abuse.

Number three:
The State may not just be looking to wipe out private attorneys from the courts, but the government may be seeking to wipe out the defense from unreasonable government intrusion. We all know that the government makes a lot of mistakes and sometimes steps out of bounds when it attempts to prosecute the laws.

Editor: Dear Number one, I feel your pain. No, that's not true. I feel the pain of a client who comes to realize that his attorney hasn't the slightest idea of what a conflict of interest is. Dear Number two, I haven't gotten word that any (ANY) of the RC offices is fully staffed many months after the RCs were appointed. That employees would be overtaxed with enormous caseloads after being promised "part-time" work and that the pay is low is no surprise. The thing to watch is whether or not lawmakers find this acceptable, and thus think it wise to drop all court-appointed counsel down to below minimum wage. Dear Number three: You are my brother (or sister, anonymous one) by another mother. You and I know that it is unwise in a free society to give power over whether or not to take children away from their parents to undertrained and undereducated young people at low salaries without any robust -- and independent from government -- counter to their enormous power. That's why I started the website in the first place.

Ethics charges story on one of the RCs may have legs

2008-04-01T22:28:00.005-04:00

Subtitle: Mission First.

I'm approaching this story cautiously. We as attorneys know full well that every story has eight sides to it, however I'm beginning to think there is something here about which the legislature ought to pay attention.

This one is beginning to shape up, though, judging from my email. Be patient, and let me develop it a bit more.

Bottom line is something that I'm inclined through experience to accept as true: Bureaucracies exist to serve themselves. That's their mission. It's about preserving the system, not engaging and destroying the enemy (if you will. Please allow me some martial metaphor, since I was once a soldier. The enemy can be whatever you want, for instance "the challenge of zealously preserving the rights of families ripped apart by yet another bureaucracy", or, you know, "defending your clients").

What's coming out of one of our five OCCCRCs is this: employees allegedly given promises never meant to be kept, employees punished for taking initiative in contacting clients via the clerk of court when the RC hasn't kept records of new cases, etc.

OK, let's back up and take a breath.

If my practice goes into the dustbin of history because Florida decided to save money and start a new system, so be it. Those things happen. I tend to find ways to profit from change and challenges, so it's o.k. In my case, I'd say that when God closes a door He opens a window. You may have your own way to be philosophical about change that is beyond your control.

But this is about more than this. The institutional knowledge, passion, and experience base that provided a check against (possible, occasional, anomalous) abuse of power -- or more frequently negligent use of power over families -- that was embodied in professional, private, and experienced dependency defense lawyers in this great state is for the most part gutted already. Even if the OCCCRCs can even pretend to be up and running nine months after being put in place, they can't claim to have reached the level of effectiveness provided under the earlier system of private counsel (or "the rotation" or "the wheel").

And if even if they could claim that, I stand ready to be educated in the matter by anyone in Tallahassee or elsewhere who can say that they are really and truly doing it for less money than it used to cost.

HB1179

2008-04-01T17:27:00.003-04:00

Sponsored by Rep. Bill Galvano, Republican Bradenton

There do not seem to be co-sponsors yet. Still:

HB 1179 2008

hb1179-00
Page 1 of 44
F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
1 A bill to be entitled
2 An act relating to criminal conflict and civil regional
3 counsel; repealing s. 27.511, F.S., which created the
4 offices of criminal conflict and civil regional counsel;
5 amending ss. 27.40, 27.52, 27.525, 27.53, 27.5301,
6 27.5303, 27.5304, 27.54, 27.59, 28.24, 28.345, 29.001,
7 29.006, 29.007, 29.008, 29.015, 29.018, 43.16, 57.082,
8 110.205, 125.69, 216.011, 216.292, 744.331, and 938.29,
9 F.S.; conforming provisions to changes made by the act;
10 repealing s. 31, ch. 2007-62, Laws of Florida, relating to
11 transition provisions for creation and operation of the
12 offices of criminal conflict and civil regional counsel;
13 providing an effective date.

Editor: This is the first I've heard of any such legislative attempt. I know it's difficult for us private dependency defenders to adapt to work along the new OCCCRCs, or else to hope for everything to go back to the way it was.

I, personally, don't think either of those is the exact right solution, but either way, the legislature needs to become educated about what the true cost of the OCCCRCs is going to end up being (both in raw budget and in impact on "the system" as a whole), and take that in account when looking at what to do legislatively.

Ethics complaint against one of the RCs

2008-03-31T18:45:00.005-04:00

I received an email today with the text of an ethics complaint forwarded to the Florida Bar. The subject of the complaint was one of the Regional Counsels. The email I read is fascinating and highlights alleged problems with attorneys hired by this Regional Counsel expending their own private resources without reimbursement to get the office running, and also suggests that one private practice was greatly harmed by its un-reimbursed commitment to provide resources to the RC office.

I want to digest this a bit more and hopefully hear from some of the players in this before reproducing the text of the complaint here, but I will follow up on it.

If nothing else it highlights what many of us have known from the beginning, that the budget for the Regional Counsel system is ridiculously inadequate, and the whole thing will either end up costing as much or more as using private contractors as in the past, or else collapse as a house of cards.

I am willing, given the fact that the people copied on the complaint suggests that the author does not oppose at least some discussion of it, to pass on this much (disturbing):

Once the change in management came into effect, the lack of understanding or respect for the dependency system and the rights of the children to permanency became clear. A practice which engaged unethical acts began. The rights of the indigent people we have been appointed to represent and protect were unprotected.

As always, any and all of the Regional Counsels and/or their spokespeople are welcome to contact this site. More information and viewpoints are good things. I've repeatedly emailed each of them in the past, with only one ever responding.

The email address to contact this blog is here.

Which county will file first?

2008-03-31T18:27:00.003-04:00

I'd noted after listening to the oral argument in the FACDL v. Crist case (decided against FACDL and upholding the Regional Counsel offices)that Justice Pariente seemed to open a wide door for the counties to walk through and file suit to have the unfunded mandate portion, requiring the counties to provide the RCs with office space and equipment stricken from the law.

Judging by the URL where I found this "local briefs" in the Tallahassee Democrat, it was posted March 27, 2008. We read:

Leon County

County will refuse to pay for conflict counsel offices: Leon County is going to refuse to pay for state-mandated conflict counsel offices, commissioners decided Tuesday. The conflict counsels were created last year as a way to handle cases where the public defenders had conflicts of interest. Previously, private lawyers would handle the cases, but now lawyers from regional offices will handle them and counties are being required to pay for their office space, phones and other needs. County Attorney Herb Thiele said each Florida county would pay different amounts for the conflict counsel office space, violating the constitution's "equal protection" clause. Commissioners authorized Thiele to file a suit against the state.

If something has happened to change Leon County's decision since that news brief, it seems certain that some county will go ahead with a suit.

This follows an earlier story in the Tallahassee Democrat that read, in part,

In the midst of a tight budget year where library hours have been cut and about 90 positions frozen, Leon County now must spend additional money housing conflict attorneys, County Budget Director Alan Rosenzweig said...Rosenzweig said the county budgeted $300,000 for running the office this year, although counties were hoping for a reprieve when the Florida Association of Criminal Defense Lawyers challenged the legislation in court. But the Florida Supreme Court upheld the mandate about a week ago.

Leon County's office is expected to have about 22 employees, but that number may increase.

"We're going to be obligated to rent them space, and provide communications and computers," Rosenzweig said.

"Supply and Demand"

2008-03-19T19:09:00.002-04:00

This comes from the NCCPR blog (scroll to 2/11/08 entry), commenting on a multi-state study (click here to read it, free registration required for full report). My comments can't add much to this analysis, except to say that I see the infants as commodities element of dependency cases frequently, and up close and personal. From the blog:

Of all children entering foster care in 2004-2005, fully 20 percent were infants. No other age group, not even children aged one to two, represented more than seven percent of all children entering care....Among children who enter foster care before their first birthday, only 28.6 percent return home. Another 9.5 percent exit to relatives and 30 percent are still in the system after turning one. In contrast, fully 24 percent exit to adoption....[ed: This means that for infants, the rate of termination of rights is nearly equal to reunification, if not more depending on the results for those still in the system after turning one]...It’s hard to believe that parents of infants are inherently more abusive and less capable than parents of children of any other age.

Here's more:

I can imagine child welfare agencies claiming that all this is just because infants are more vulnerable – so someone who can be a good parent to a 12-year-old might not be a good parent to an infant. But children aren’t exactly self-sufficient at 18 months – yet even by that age, child welfare systems are far more prone to return a child to birth parents. Among children aged one to two years old 40.5 percent return home and only 13.6 percent are adopted.

So the real answer is as obvious as child welfare agencies are desperate to deny it: Supply and demand. Infants are, by far, the most marketable of commodities in child welfare. There is far more likely to be a “nice” (translation, affluent, white professional) couple - people like us – anxious to adopt, so it’s much easier to take them away forever from parents who are “unfit” – translation, poor, minority and so, presumably, nothing like us.

And, of course, the federal government will pay the child welfare agency a bounty of $4000 to $8,000 for every finalized adoption over a baseline number. There is no comparable incentive for returning that adorable infant to her or his own parents.

In the United States, as early as 1999, the Pittsburgh Post-Gazette did an excellent series on the propensity of one county in Western Pennsylvania to rush impoverished infants out of their homes and into the arms of affluent adoptive parents who sometimes had connections to the county’s child welfare and court systems. [ed: Oh, I have stories!. Yes, that happens in Florida]

If child protective apparatuses tend take on the look and feel of a for-profit industry, the "bounty" for finding attractive adoptable babies is among the least defensible of the profit centers. Do your jobs well, dependency defenders.

What legislative changes can make this work?

2008-03-18T22:05:00.002-04:00

Readers and contributors to this blog may disagree, but it has been my position since the Regional Counsel law was passed way back when (about the time that dependencydefense.com appeared)that we have entered a new era, and we as private defense counsel in dependency cases are going to have to adapt to it. I envisioned coalitions of experienced attorneys who could contract with the RCs to provide great service at a reasonable cost while sacrificing none of the experience and passion of those attorneys.

The problem is that the current law doesn't allow the RCs to contract with such coalitions/firms. Either you become a state employee or you don't. I am not alone in thinking that there is too little imagination and flexibility in that requirement.

In that light, I recently asked Jack Flyte, 2nd Regional Counsel, a question. It went, in part, like this:

I'm wondering how things are going for you in handling dependency cases. I also wonder what you would think of a tweak to the law that would allow you to contract with law firms to handle dependency cases instead of a strict requirement that all of your lawyers become state employees.

Mr. Flyte's answer, quoted here with his permission, was, in part:

I have recently met with State Senators and Representatives about allowing me more discretion in the way I am allowed to use my budget such as contracting with private lawyers as opposed to hiring them as a state employee. They all seemed willing to allow me wide discretion in this regard but also were very clear that there would be no budget increases this year.

The Bill to repeal my office by Rep Galvano lacks a Senate sponsor so is not likely to succeed.

There is also a Bill with both House and Senate sponsors to expand my office's duties to represent Guardian Advocates. So it would seem they are anticipating my office's continued existence.

So. I think my initial instincts are correct, and that we ought to go in the direction of creating private services that are effective, both litigation and cost-wise, and attempt to influence the legislature to allow for contracts between the RCs and private law firms to deliver dependency defense services.

Nominations for top 10 lawyer movies -- defense edition

2008-03-16T21:53:00.003-04:00

Thanks to contributor "The Reader" for the very interesting post below. There's a lot to think about there.

This being the weekend (the last couple hours of it, anyway), I thought I'd post something a bit lighter.

I just got done watching the first episode of HBO's miniseries called "John Adams". It is based upon a book I've read and enjoyed called 1776 by David McCullough. The first episode is the story of a defense lawyer, who just happened to become the second president of the United States.

I find that episode relevant here because it focused on what we do: the defense of defendants that our community finds to be barely worthy of a defense at all. You see, attorney John Adams defended the British soldiers involved in what we all know as the Boston Massacre. The man believed in the law, and in the end the jury of Massachusetts men believed in the facts as presented by Adams. It's a good story, and leads to an even better one in which American revolutionaries came to appreciate the quality of Adam's reason and prudence, even though it did not at first serve their cause.

We dependency defense lawyers can't lay claim to Adam's greatness, but we can lay claim to a similar willingness to take the causes of those about whom the public might just as soon not look into the facts and weigh all the essential factors in what it means to serve the best interests of children and families.

Anyway, speaking of people named John Adams (in this case John Quincy Adams), it made me think of a great lawyer for the defense movie. One of my favorites is Amistad.

If you are inclined to nominate any other lawyer movies for the top 10, leave a comment below.

Views from around the State

2008-03-16T19:19:00.002-04:00

Taking a look around the state, things don't look promising for OCCCRC:

Per PD Laramore: Lewis Hasn't hired a staff:

http://www.newsherald.com/headlines/article.display.php?id=1097

Leon county just not sure how they will pay for the conflict offices:

http://www.wctv.tv/home/headlines/16689256.html

No comment from Flyte:

http://www.tampabay.com/news/courts/article416492.ece

With cuts in the state budget and expected cuts in local budgets, where is this all going. Have they done the math yet? Was this on the FCAT? Hopefully for the indigent clients these offices are charged with representing, this will turn around fast - but without appropriate funding what representation will they get????

Regional counsel might start taking cases in 17th circuit dependency this coming week. I'm not sure how well staffed the office is. We have five judges, three general magistrates, mediation that is routinely utlilized in dependency and then there is appeals, depositions, office administration, client contact (can't forget that) . . . . That is what they need to cover. I'll be posting the progress.

Supremes Rule - OCCCRC Constitutional

2008-03-13T11:29:00.002-04:00

Well its done - until and unless the counties take action now.

Just as expected - the inclusion of the OCCCRC as public defenders was for sole "purpose of implementing the constitutional guidelines concerning funding." p. 18 of opinion.

To those who have been and will be hit hard by this- keep your head up, while still involved in dependency cases stand strong for zealous representation of parents, and remember as one door closes another opens.

Discipline via nozzle

2008-03-11T22:29:00.002-04:00

The attorney mentioned in this now nation-wide story is a colleague of mine. As with most of these things, they only become visible stories when there is video.

Here's the question for you commenters: does this appearance on Good Morning America increase the pressure on DCF to remove the child?

I've wondered about the wisdom of appearing on national television on behalf of a client ever since the "baby in the oven" case highlighted by Nancy Grace on CNN. In that case I elected to keep things out of the media circus. In some ways I regret that, as I can't even get the local paper (Orlando Sentinel) to acknowledge the fact that the family in that case has been successfully and happily reunified. In most ways I don't regret it, since keeping the national news story alive longer would have made negotiating with DCF more difficult.

What do you think?

Why we fight, part 3

2008-03-10T22:53:00.002-04:00

I very purposefully keep my personal politics out of this blog. Dependency defenders come in various shapes and sizes, and I work with plenty of people who like me (it's mutual) but with whom I disagree vastly on various political issues.

It's with that in mind that I post the following. Here are two reasons I'm concerned about the future repercussions of gutting the pool of dependency defense experience in Florida might have.

I think the following links speak for themselves.

Here is the wave of the future: educational neglect.

Here is an example of the system being so unfamiliar with a foster child having any sense, drive, or ambition, that it simply cannot allow them to rise above his situation under any circumstances.

It is time to organize

2008-03-10T22:25:00.002-04:00

..or, why we fight, part 2...

I have from time to time blogged about specific cases I've had in order to illustrate the great good that competent dependency defense lawyers can do, not just for individual clients, but children, families, and for society, not to mention the state budget that feeds the enormous foster care machine.

I have posted some questions to which I'm still awaiting answers in "why we fight" (part 1).

As private defense attorneys, we deal with difficult clients, many of whom are mentally ill. The last hour I just spent returning email can attest to that. All for a whopping $1000 per case. As private defense attorneys, we've accumulated the experience and relationships with judges, DCF counsel and case managers, etc., that allow us from time to time change the dynamics of what happens when a case becomes entrenched in the system and, if I may be so bold, pull off miracles. Two Fridays ago I was dreading a judicial review hearing. The case was going on two years old. The client didn't follow my advice very well and was difficult to deal with. There was trouble with ICPC missteps and false starts in two states with the parents trying to satisfy the government with their case plan efforts, and we were on our fourth case worker not doing much to create options other than an eventual inevitable TPR.

I dreaded the judicial review hearing. More sadness over seeing a family that had been well and truly torn apart. More punting the ball down the field for a future hearing. Then I had an epiphany and perhaps an original thought. Five lawyers had been involved in the case for almost two years. Five minutes of argument after I had my new thought and suddenly the family was reunified, and supervision and jurisdiction terminated. Tens of thousands of taxpayer dollars saved. A family saved. It's hard to explain. A totality of experience in dependency court focused and came to a point of determination. A few minutes of talking, the judge's head cocks, eyebrows raise, a statute book is opened, the air in the room suddenly feels different, clients and extended family begin to cry with pent-up hope, and then...the ruling.

It's over. It's all o.k. now. The child has parents again.

That's not to say that employees of the Regional Counsels cannot or will not be capable of spectacular results in court. I hope and imagine that several of them will accomplish that.

It is to say that simple math tells us that the most experienced of Florida's dependency defenders are unlikely to accept $40,000 per year jobs and give up the joys of running their own practices to become employees of the Regional Counsels, and that is a lot of talent lost if they can no longer make a living doing this work.

This post is becoming long and a bit rambling, so let me take you to my point: we dependency defenders need to form an organization. We need a "Florida Association of Dependency Defense Lawyers" (FADDL), and we need to help our legislature make some relatively minor and common sense changes to the new RC law. First on the list of changes would be to allow the RCs to contract with (instead of making them employees) individuals or firms who are willing to negotiate a fair and proper fee for covering dependency defense in a county, circuit, or region. That is a key thing that is missing from the law as it is now written.

Look, the Supreme Court is going to uphold the RC law. I don't like predictions, but I'd be shocked if I'm wrong about that. We as private defense counsel need to figure out how to not only survive in the new environment, but also how to thrive and to significantly contribute to the solutions.

I envision a series of very professional "Family Preservation Legal Services" law firms who can contract with the RCs and do more with less and allow experienced defense attorneys to do what they love full time without having to become state employees.

Are you with me? The first step is to create the FADDL. I'm in, and can think of a few people who would like to pursue it as well.

Incidentally, I can tell you that a recent lunch meeting overheard at Macaroni Grill suggests that there are people thinking along the same lines.

Role Call

2008-03-06T15:52:00.002-05:00

As of the 3/5/08 shelters, still no sign of Regional Counsel in the 17th Judicial Circuit - Broward County. Rumor has it that Regional Counsel is getting geared up to take cases here soon.

What's the rest of the state looking like?

FYI - there is at least one bill that was filed very recently calling for Regional Counsel to be repealed.

Predictions after the arguments

2008-02-27T09:46:00.005-05:00

Wow. I don't have any good feelings about the argument. I am troubled however by the suggestion that they may in essence amend the statute by disregarding (deleting) the words public defender so that the statute is constitutional or alternatively interpreting (adding language) to suggest that the intent of the legislature was to include regional counsel as public defender for funding purposes only. The only advantage to the latter argument is that the counties should then pounce and argue that there is a problem with the legislature redefining the words "public defender" in the state constitution years after that provision was drafted and adopted.

I guess it depends on what school of thought you align yourself concerning to what extent the judiciary can legislate in order to preserve the legislation.

Now we wait.

[NOTE: I'm editing this even though it is TheReader's post to add a post title and to weigh in with my own prediction. I respect any who saw something else in the oral arguments, but to me it is very clear that the Regional Counsel law will be upheld to the letter, and probably praised in the opinion as bold and innovative. What happens to the budget of the RCs afterward is the topic of future speculation -- ArrMatey]

Liveblogging the oral arguments

2008-02-27T08:54:00.010-05:00

The Crist v. FACDL case is up for arguments this morning before the Florida Supreme Court. I'll be blogging about it in semi-real time. If you are watching/listening (or attended), please leave your impressions in the comments below.

ALL THE BELOW ARE PARAPHRASES WRITTEN ON THE FLY

0856: You can use either windows media player or real player. Waiting for connection to open.

0902: Proceedings begin. Counsel for the Governor, Mr. Hubener opens. Two sentences in Chief Justice Lewis asks to confirm that there is no constitutional challenge to the lack of a requirement that the Regional Counsels themselves be lawyers before them. Mr. Hubener confirms that..

0903: (Ouch) Justice Pariente immediately follows with a blanket statement that the civil side of the Regional Counsel setup "seems like a rational system", and that there is no argument at all that they will not be fully competent to provide services in civil cases. Mr Hubener agrees that such argument isn't before the court.

0909: Justice Anstead: Isn't this law just about a reorganization; isn't the legislature just trying to save money? (the question is answered in the affirmative)

0910: Justice Wells: Isn't this really about the legislature making adjustments subsequent to Article 5 funding requirements? (the question seems answered in the affirmative)

Justice Pariente: The problem of partial county funding for the RC offices is not at issue today, right? (answer: correct)

0913: Justice Quince: (Did I say OUCH?) In civil cases, there is no difference at all between the regional counsel offices and having private counsel represent people, other than the structure of how those services are delivered, right? Answer: There is no difference.

0918: Mr. Hubener reminds the justices of the severability of the law if the Court finds the criminal side unconstitutional.

0919: Mr Hubener wraps up, Ms. Rudenstine for FACDL takes over. Justice Cantero starts with question: if the RC law is unconstitutional, then why wasn't the appointment of private counsel unconstitutional, since they are doing the exact same thing? The answer to the question doesn't seem to impress Justice Cantero.

0922: Pariente repeating that the counties down the road may have an arguement that the RC offices are unconstitutional for funding reasons, but that issue is not before us today.

0924: Justice Cantero: if the legislature simply removed the RCs from the definition of a public defender, wouldn't everything be copasetic? Ms. Rudenstine seems to concede the point.

0926: Justice Pariente: so if the heads of the offices were elected, there would be no problem?

0931: (game over) Justice Wells: "There is a real need to solve the problem of conflict counsel". "The legislature has taken a very constructive step in trying to solve that problem." The Constitution doesn't prohibit that...We've got a solution now that comes within the boundaries of the Constitution.

0934: Justice Wells says he can't find anything in Section 18 that prohibits this new structure. Asks for a cite.

0937: Justice Pariente: Is there one duty that the RCs are performing that would otherwise go to the public defender? 0938: Justice Cantero isn't satisfied with the answer, asks again whether the one and only problem is whether the legislature CALLS the RCs public defenders.

0940: FACDL concludes. The Court asks if there is rebuttal. The Governor's counsel declines. There are no further questions, and Court adjourns.

[I'll let this sit out here in raw form before commenting/analyzing to give some of you a chance to leave comments below first]

I apologize for my absence / Supreme Court oral arguement

2008-02-26T19:07:00.003-05:00

It's not good form to let a blog lay dormant for a couple of weeks. I apologize. In a nutshell, I've been quite sick the past few weeks, and just haven't had the time to post dependency news.

I'd originally planned to go to Tallahassee today to watch the oral arguements in the FACDL case in person, but as I said, I've been sick, so I'll be watching it with you on the internet.

You can use this link at 9:00 a.m. tomorrow to watch the proceedings.

Upcoming Oral Argument

2008-02-15T09:48:00.002-05:00

FYI:

If you are interested in watching the oral argument in the FACDL case visit:

http://www.floridasupremecourt.org/pub_info/summaries/index.shtml

The oral arguments are currently scheduled for Feb. 27, 2008 at 9:00 a.m.

Reply brief posted in FACDL case

2008-02-12T17:31:00.000-05:00

First, let me apologize for my absence. Even when there is no news on the state level, there is plenty to say about dependency defense. The fact is, I've been wiped out with what seems to be the flu for over a week.

Second, welcome to co-blogger TheReader, appearing for the first time in the post below. It's great to have a contributor!

Now on the post. The reply brief of the State has been posted in the FACDL quo warranto action set for oral arguement before the Florida Supreme Court in just fifteen days.

You can read the reply brief at this link.

I don't see much there that is new after the initial brief, except perhaps for a new emphasis on the arguement that the civil responsibilities of the RCs are severable from the criminal side if the criminal part is found unconstitutional.

Proposed Legislation

2008-02-11T11:25:00.000-05:00

Thanks to ArrMatey for letting me contribute. I thought for my first post I would let everyone know some of what is brewing in Talllahassee:

A quick check of proposed bills through www.myfloridahouse.gov reveals some interesting proposed changes to Chapter 39:

HB 271 - Sexual Battery, a bill proposed by Hooper, now in Committee on Constitutional & Civil Law - would create a new ground for termination of parental rights:

39.806(1) Grounds for termination of parental rights.--
(j) When the parent has pled guilty or nolo contendre to, or is convicted of, a sexual battery as defined in s. 794.011 or of an act committed outside this state which would be a sexual battery if committed in this state, which results in the victim giving birth to a child.

See also: CS/SB 638 - Sexual Battery/Termination of Parental Rights, a bill proposed by Children, Families, and Elder Affairs and Jones (CO-SPONSORS) Gaetz - this bill proposes the same grounds for termination but allows that ground to serve as a basis for expedited TPR and one-parent TPR.

HOW DOES THIS SIT WITH YOU?? I see some constitutional pitfalls built right into this proposed legislation.

____________________
There is also a proposed bill that appears to renew efforts to provide counsel for children:

SB374 - Child Dependency/Legal Representation, a bill proposed by Lynn, proposes the following amendments:

39.402 Placement in shelter.--
(8)(c) At the shelter hearing, the court shall: 1. Appoint a guardian ad litem to represent the best interest of the child, unless the court finds that such representation is unnecessary, and an attorney to represent the child if considered necessary by the court;

39.830 Attorney representation.--
(1) LEGISLATIVE INTENT.--In furtherance of the goals set forth in s. 39.4085, it is the intent of the Legislature that children in the dependency system receive needed legal representation.
(2)LEGAL REPRESENTATION.--Each circuit court shall establish a system for providing legal, client-directed representation for children taken into custody by the department and maintained in out-of-home care by court order pursuant to a hearing held under s. 39.402.
(a) At the hearing or at any time following the hearing, the court may appoint an attorney who has completed the training program under subsection (3) to represent the child upon motion of a party or upon the court's own motion, if the court considers such representation necessary. Upon the court's determination, the department shall provide to the attorney the name of the child, the location and placement of the child, the name of the department's authorized agent and contact information, copies of all notices sent to the parent or legal custodian of the child, and any other relevant information or records concerning the child.
(b)Once assigned, the attorney shll represent the child's wishes after consulting with and advising the child in a manner appropriate to the child's age. The attorney must in all circumstances fulfill the same duties of advocacy, loyalty, confidentiality, and competent representation which are due an adult client. The attorney shall represent the child until discharged by court order because permanency has been achieved or the court believes that the legal representation is no longer necessary.
(c) The judicial circuit may contract with a public or private entity having appropriate expertise and training to provide attorney representation.
[section 3 provides for the development of a training program]

WHO IS PAYING FOR THIS AND WILL THAT BE THE DOWNFALL OF THIS EFFORT?? Since there would be a contract with the circuit, I presume that would have to include reasonable compensation. The lack of funding for attorneys or attorneys-ad-litem for children has been a problem. In my circuit, representation of children is limited to Legal Aid or pro bono attorneys (of which , I submit, there are few). When Legal Aid has had a conflict or is otherwise not availalbe, representation of children has been overlooked because of the funding problem. Also, I like how this bill would resolve a debate that I have participated in and witnessed - whether the attorney for the child speaks on behalf of the child alone or with an eye on "best interest."

What do you think??

Zimmerman

2008-02-04T21:33:00.000-05:00

I imagine most readers of this blog are already aware that DCF's press secretary (THE press secretary, the one in Tallahassee) has been arrested for producing child pornography.

You can click here and take your pick of news articles about it.

Here's an example:

A Department of Children and Families spokesman arrested on child pornography charges met one victim who was in state care through his job, Florida Department of Law Enforcement Commissioner Gerald Bailey said Monday afternoon.

Al Zimmerman, 40, allegedly offered at least two male teenagers, ages 16 and 17, money in exchange for photographing them in sexual acts. He wanted nude pictures of them so he could make child pornography, according to a probable cause affidavit.

To DCF's credit, they've fired Zimmerman, and DCF websites and the State 411 directory are already being sanitized of any mention of him.

But he's out on bail, which means he's free to do things like delete his myspace page.

But there's this thing called a cache.... Click here for Mr. Al Zimmerman's MySpace page, which he last logged into on 1/28/08, courtesy of DependencyDefense.com. Sorry, but the "view my pics" link is already deleted and no cache available.

This is a horrific story, and I pray that the kid he allegedly photographed in Orange County isn't from one of my attorney ad litem cases. I also pray that DCF is forthcoming, at least to the applicable judges, about who the victims are.

Beside the creepy citing of a youth camp in New Hampshire as one of his "groups", the cached myspace page has some other items of note:

1. "Status: Swinger"
2. "Occupation: Press Secretary State of Florida
Tallahassee, Florida US
Press Secretary
DCF"
3. Comment from a "friend": "how's the syphilis treating you?"
4. Comment from a "friend": "shouldn't you be at work?"
5. Comment from a "friend": "still flying around on the company dime?"
6. Exchange between DCF spokesman and a "friend" between December 3 and 5, 2007, seems to be setting up a "swap" between friend's girlfriend and DCF spokesman's sister. Just hanging it all out there on the internet and all.

It's a shame that the random "friends" of Mr. Zimmerman on his MySpace page are immortalized here. I suppose there's an object lesson there.

FACDL's answer brief is now available online

2008-02-04T19:47:00.001-05:00

For those following along with the proceedings in the Florida Supreme Court, here is a link to the latest filing.

I find the portion about public policy considerations, starting on page 20, to be the most interesting part.

More quo warranto writ filings online

2008-01-29T21:35:00.000-05:00

I've taken several days off from blogging. You know how it is, between taking care of practice and family, paying attention to the Florida primary (prediction: there will be a lawsuit about those not counted Democrat delegates before it's all over), and the fact that there isn't much news about dependency defense in the past few days, I have stuck to the rule of not blogging if I don't have anything useful to say.

There are filings to read in the FACDL quo warranto action, though.

Here is a link to the State's initial brief.

Here is a link to the appendix to that brief.

Initial thoughts, not having read it all yet, is that even though the lower court's order encompassed whether or not the Regional Counsels should continue to provide not only criminal defense counsel, but dependency defense counsel, Chapter 39 is not included in the cites in the State's brief.

Stepchildren we remain. One would think that the power granted to state actors to break families apart would be at least almost as high on the list of concerns as whether or not someone might do jail time, but alas it is not so.

co-bloggers wanted

2008-01-23T21:03:00.000-05:00

It's been my experience through trying to build an attorney directory (future of that: up in the air) and trying to get a message board going (present of that: not going so much) that attorneys are information sponges and participation pet rocks.

I can say that. I'm an attorney.

As we have about six weeks before the next event in the FACDL quo warranto case (oral arguements -- I'm going to spell it that way anyway, spell check), I'd love to know how things are going around the state.

Are the Regional Counsels taking dependency cases where you are? Do you have a point of view you'd like to add to this blog? Do you disagree with the tone of this blog but want to contribute to solutions to problems of providing defense to the indigent in dependency cases? Do you want to start a statewide organization of dependency defense attorneys?

Or rather, do you want to write for this blog?

If so, and I reserve the right to say "no thanks" (how's that for a pitch?) use this link to find the contact information for DependencyDefense.com. It would be great to have more writers here with different perspectives than mine and more information than I can gather.

The Daytona Beach News Journal weighs in

2008-01-22T14:06:00.000-05:00

"Fiendishly short time frame". That's a nice choice of words in the editorial that you can read at this link.

Here's an excerpt:

From the start, the system seemed troubled. The Legislature set a fiendishly short time frame to have the offices up and running -- the session ended in spring, and the offices were supposed to be up and running by October 2007. They weren't. In fact, there was much dispute over who was actually meant to pay the overhead costs of operating the new system -- the state budgeted $50 million for the new regional counsels (a sum that probably wouldn't have been enough to hire the skilled attorneys necessary to handle complex cases) but didn't include the roughly $20 million needed to provide office space, equipment, furniture and other essentials. Neither sum contemplates the increased risk of expensive appeals while the kinks are ironed out of the new system.

Compare the cost of the new system with the $90 million spent annually on conflict counsel under the court-appointed system and the notion that the state was getting a bargain becomes even more suspect. It makes more sense to return to the system that works.

And my favorite part:

The fees for conflict attorneys are usually capped at a rate below the market average for private attorneys.

I hope that the public and the legislature keep that in mind now that everyone seems to be agreeing before the Supreme Court that the services the Regional Counsels were meant to do are, in fact, quite valuable indeed.

Are you keeping track?

2008-01-22T00:45:00.001-05:00

Speaking of the post below, I have a question for you private defense attorneys who are keeping the dependency courts of the State of Florida running smoothly as the Regional Counsel offices litigate with FACDL and operate at various levels of readiness:

Are you keeping track of how many indigent parents are not getting counsel at their initial shelter hearing?

If not, you should be. If you'll pass it on to this website, we'll make sure that the data gets to the legislature when it next considers what to do about the Regional Counsel system.

Does Aisha Bowen have a lawyer?

2008-01-22T00:07:00.000-05:00

This weekend I saw something remarkable. I remember back to when the national media got some mileage out of a client of mine, accusing her of putting her baby in the oven and turning it on. Nancy Grace of CNN got all over it.

The problem was, and is, that it never happened. She never put her baby in the oven and turned it on. Didn't happen. Since then the family has been successfully reunited and the dependency case closed to the satisfaction of everyone, including DCF and the judge.

My client didn't give interviews. You want to know why? She had a lawyer -- me. There was no good reason to give interviews to the media. We had work to do -- to prove our case and get on with what it would take to get her kids back to her, and that's what we did.

So this weekend I saw on the local news a story out of Ocala. It seems that there is cell phone video footage of, as the news says, the following:
According to authorities, on Jan. 13, a resident went to the Ocala Police Department with a Sprint Treo cell phone that he recently had purchased and showed them a video clip of the woman hitting the child. The police report notes that the video shows the child being struck multiple times while being picked up by his arm, and shows him being carried to a bedroom and placed in a playpen, where he was again hit before being forced to lie down.

Now that may or may not be child abuse rising to the level of needing both an arrest and the removal of the child to be placed in foster care. Let me be clear: I don't know. I haven't seen the actual video. I don't know if the mother was offered services to rehabilitate herself and still keep the family together. I don't know if this was her first case of this sort or if there had been previous reports. I don't know if she is someone who ought to be eventually reunified with her child or not. I simply don't know much, and neither do the news outlets who are reporting this.

I do know this: She gave interviews to at least three media sources from jail, one print, and two television. From the text of the various articles, it seems clear that she's not yet spoken to an attorney, and that is the point of this post.

From the news stories, we know that Ms. Bowen was arrested on Friday, January 20. The Marion County Clerk of Court website has not yet caught up to the event, so there is no online record of it there at the time of this posting. Assuming that the removal of the child by DCF took place at the same time as the arrest as reported by the news, there should have been a shelter hearing on Friday. It seems that there was not one, the matter was heard by a judge pulling weekend duty, and a shelter review hearing will be heard tomorrow, on the Tuesday after the MLK holiday.

Now that the Regional Counsel Offices have won their victory at the Florida Supreme Court and have had the stay reinstated and have the green light to do their jobs, my question is this: will Aisha Bowen have a lawyer from the 5th Regional Counsel tomorrow, to advise her about talking to the media, to argue about imminent harm, to argue about the non-punitive and rehabilitative nature of Chapter 39 (the alleged excessive spanking took place three months ago) and to argue about the harm to the child by being placed in foster care with an order allowing no contact with his mother?

Happy Martin Luther King Jr. Day, and other things as well

2008-01-22T00:03:00.000-05:00

Happy MLK day.

There has been news about the Regional Counsels and the Florida Supreme Court in the past few days, and plenty to talk about. Jeffrey Deen (5th Circuit Regional Counsel) visited us last Thursday at a meeting between attorneys and the dependency judges in Orange County, and some of what he had to say was newsworthy, in my opinion.

But it's a holiday weekend, and DependencyDefense.com has taken the weekend off.

See the post above for some late-weekend thoughts about something more substantive.

Indigent Defense ping-pong continues

2008-01-17T16:23:00.000-05:00

After court today I was going to delve into the details of the motion and response before the Florida Supreme Court in the FACDL case, but since the Court ruled on it today, that isn't so pressing To be specific, the FSC has ordered that Judge Davey's Order finding the Regional Counsel law unconstitutional is stayed pending further proceedings, and the RCs can will not have to cease taking new cases this month.

I'll get around to said details later, as they will still be relevant to the larger issues yet to be decided.

In the meantime, you can find the latest order at the FSC website at this link.

It is short and to the point. Since the stay was an automatic one and the Supreme Court does not find that FACDL showed compelling circumstances required to dissolve the stay, it is reinstated.

Preview of the emergency motion before the Florida Supreme Court

2008-01-16T13:56:00.000-05:00

I haven't read Appellant's "Emergency Motion for (1) Review of Circuit Court Order Vacating Rule 9.310(B) (2) Stay of order under appeal (Circuit Court Order Granting Petition for Writ of Quo Warranto), and (2) Reinstatement of that Stay" in the FACDL lawsuit yet, but have heard from a source some of what it argues.

Since I haven't verified it yet, I'll leave that hanging for now. Let me just say that I hope it is as I've been told, because I expect the particular argument to be easily overcome.

Vague enough? Stay tuned.

Florida Supreme Court schedules argument on FACDL case

2008-01-15T16:10:00.000-05:00

The Florida Supreme Court has issued a scheduling order in the Crist, et al v. FACDL appeal of Judge Davey's order (see posts below for background). If you want to read the order, click here.

Petitioner's brief is due January 25, 2008, and Respondent's reply brief is due February 4th, and finally Petitioner's reply brief February 11th.

Oral Argument is scheduled for February 27th at 9:00 a.m.

There is also pending an emergency motion to reinstate the stay of Judge Davey's order finding the RC system unconstitutional. Reply to the motion is due tomorrow, January 16th.

You can follow along with the docket at this link.

I'm just noting it for a laugh

2008-01-14T10:13:00.000-05:00

It's in the newspaper, so it must be true.

In case anyone at the Associated Press wants to correct their story about the latest order in the FACDL case, I suppose they can read this blog.

Ironic:

By Bill Kaczor
Associated Press Writer

TALLAHASSEE, Fla. --
A judge ordered the closure Friday of five newly created state legal offices that lawmakers expected would save the state millions of dollars each year.

The offices were set up to provide private lawyers for indigents when public defenders cannot handle their cases, primarily due to conflicts of interest. Those conflicts often arise when more than one indigent defendant is charged with the participating in the same crime.

Here's the order on the stay

2008-01-11T21:02:00.000-05:00

You can read it at this link.

[a commenter found the link not working. Here is another link to the order on the Dependency Defense server]

Key findings:

1. It has not been demonstrated that the Respondents (the Governor, Senate, and Regional Counsels) have a likelihood of prevailing on appeal.

2. The Court finds the constitutional deficiences in the Regional Counsel law to be substantial.

3. Allowing the RC system to continue in the near-term would waste money, be confusing, and the problem will grow with time.

4. If the stay is not lifted, unacceptable harm will come to indigent defendants and civil litigants.

5. The harm of keeping the stay is greater than the harm of lifting the stay.

6. (see paragraph I) Appointing private counsel under the pre-existing system will save public money.

7. A blanket lifting of the stay in all respects would harm those who already took employment with the RCs.

Therefore:

A. The stay is dissolved.

B. The RCs can continue to represent criminal clients assigned before January 18, 2008, and civil clients assigned before January 31, 2008.

Update on where dependency stands after Judge Davey's ruling

2008-01-10T22:31:00.000-05:00

Note/Update: This post previously contained email from someone privy to the proposed (and competing) orders for Judge Davey to consider. I've removed the email quote at the request of its author. There was noting inaccurate about the rest of what was previously posted here; it is simply wise to leave this post as it is now until Judge Davey issues his order.

The bottom line remains that Judge Davey did (at the moment orally pending written order) dissolve the stay of his order finding the Regional Counsel law unconstitutional.

Why it matters, part 743

2008-01-10T22:16:00.000-05:00

While we are all paying attention to what is happening in the courts with regard to SB1088, let's not lose so sight of why we care in the first place.

As I know those of you who read this blog won't tend to do.

A Garfield County man contends sheriff's deputies barged into his home and forcibly took his 11-year-old boy to a hospital after he refused to allow paramedics to examine a bump on the boy's head....Someone called for an ambulance, but before paramedics arrived, Tom Shiflett said he picked his son up, brought him inside, put him on a couch and applied an ice pack to his head.

When paramedics arrived at the home, Shiflett said he let them look at his son, but refused to let them treat the youngster.

"I told them I didn't call for an ambulance. We're taking care of it," Shiflett said. "I want you people to leave. I didn't call you."

That led to a visit on Friday morning from two social workers. Shiflett said when he rebuffed them, they vowed to come back with a court order.

Deputies returned to serve the order later that evening. Shiflett contends he would have let them in if they said they had a warrant.

He claims they gave no such notice and barged in with a battering ram.

Shiflett said deputies temporarily handcuffed him and his wife and their oldest daughter and left with the boy.

Here's the link to the story.

Here's another take on the story.

The moral of the story: Child dependency laws are extraordinarily powerful. It is in the interest of everyone that there be a check on that kind of governmental power.

Period.

Regional Counsel shutdown confirmed

2008-01-10T21:56:00.000-05:00

In the post below, we broke the news that the Regional Counsel offices will stop taking dependency cases by the end of the month and are directed to stop expending their budgets, at least on new matters.

It's now been confirmed.

First, from the absolutely wonderful court liaison for Orange County, I get this reply to my email breaking the news:

I got word from Regional Counsel—it is true. They will stop accepting dependency cases as of 1/31/08.

Then I got the following to my law firm's email address from someone in the know:

I posted the information on your blog earlier today about Judge Davey's ruling yesterday. I am a legal consultant working with FACDL in the 1088 challenge. The parties are working on a proposed order to reflect Judge Davey's ruling lifting the stay. As soon as it is finalized and signed, which I expect to be later today, I will let you know.

[thank you, sir]

This all raises a couple of questions, of course. First, the forms I've prepared and posted at various places on this blog and on the DependencyDefense.com website are pretty much moot, but to the extent that the RCs will be accepting new cases between now and January 31st, it's not a bad idea to keep using them. That is, it can't hurt.

Second, one wonders what will become of the employment of the various attorneys who have been hired by the RCs. I have no idea; I'll send out some emails and try to find out. I get no pleasure in what is at best an uncertain situation for them. I know that several of them are very well qualified and care about dependency defense and don't deserve to be in this situation. I also know that it is the fault of nobody in particular. I'm just noting it. If I get any good information, I will pass it on.

Third, it seems to me that the next step is to make sure that the testimony of experts in dependency defense are a part of the next time the Florida legislature revisits this whole thing. I've noted in earlier posts that there is a no such thing as a "Family Preservation Legal Services Association" or anything akin to the FACDL specifically for dependency defenders, but there ought to be. Let's talk to each other more and be better prepared to give competent expert information to the legislature when they look to fixing SB1088.

Fourth, today's blog traffic is at least quadruple what it normally is. Cool. As always, I invite you to leave comments or join the message board.

Breaking -- Regional Counsels ordered to shut down

2008-01-10T10:49:00.000-05:00

That is, if my unsourced and unverified source is correct.

From the comments to an earlier post:

Regional Counsel cannot take any new criminal cases after 1/18, and they can't take any new civil cases after 1/31. They can't hire new staff or spend any $$ except to maintain existing caseload. The judge ruled from the bench late yesterday at the hearing, and the order hasn't even been signed yet.

January 10, 2008 8:04 AM

In other news...

2008-01-09T22:33:00.000-05:00

...if you are following the posts below in order...

The 1st DCA issued an order today (I don't yet have a copy) that is summarized on its website as follows:

Appellants' emergency motion to require stay of all further proceedings in the trial court is denied. This disposition is without prejudice to the right of either party to seek review pursuant to Florida Rule of Appellate Procedure 9.310(f) of the trial court's order on motion to vacate the automatic stay.

What this means is that Judge Davey in Leon County can rule on the motion to lift the stay (of his own, earlier order) that was described in posts below.

Chaos

2008-01-09T22:25:00.000-05:00

Let me start with a bit more from todays email. From a dependencydefense.com reader:

Hi Again:

What a mess!

Our Court Administrator sent an email to the Court's saying that the Regional Counsel was not to take ANY cases because Judge Davey lifted the Stay.

Wow.

To make it even more frustrating, it took me days to get the JAC to respond to my request for a review of our Order of Appointment after January 1st. Last week appointments were made but the Regional Counsel was not operational. I finally heard from Attorney Presnell yesterday. He said:

Dear [helpful DependecyDefense.com tipster]:

JAC has been informed by Philip Massa, Regional Counsel, Fourth District, that his office began accepting appointments to dependency cases in St. Lucie County (Fort Pierce) on January 7, 2008. Counsel appointed to a dependency case before that date are considered “properly” appointed and may be compensated.

Stephen

Stephen M. Presnell

General Counsel

Justice Administrative Commission

First let me talk about that. I've read the legislation creating the Regional Counsel offices, and it deals with appointments of private counsel, at least when the Regional Counsel office itself has a conflict. Please read the post at this link if you have not already. This is what we've been doing in Orange County since January 2nd. We're just trying to comply with the law, nothing more nor less.

The email cited above seems to suggest that JAC is taking the position that no private counsel appointed by a dependency court judge will be compensated, period, once a RC begins operation. Again, by simply reading the law creating the RCs, that cannot be true. Really, read this post.

As I said to my emailer, this website has been far more interested in keeping good dependency defense from becoming irrevocably gutted in the Great State of Florida than in preserving the practices of dependency defense attorneys like your author. I mean that; it would be far easier to recover and rebuild the latter than the former.

To sum up. Do I have this straight? 1) The Regional Counsels are not to accept any more cases, and at the same time 2) no private counsel is to be compensated for accepting any cases.

I am certain that is not the way it will work out, particularly if y'all consider using the forms. But still. Chaos.

Quo Warranto action certified to Florida Supreme Court

2008-01-09T16:49:00.000-05:00

Judging by the web searches that are leading people to the blog today, this needs to be covered.

According to the Leon County Clerk's website, there was a hearing on FACDL's motion to dissolve the stay of Judge Davey's order declaring the Regional Counsel law (at least in part) unconstitutional (it's a long one, but you might find the exhibits interesting.). If you've not read Judge Davey's original order, you can click here.

The Respondents (The Governor and the Regional Counsels) moved for a continuance of the hearing on that motion (and also for a protective order regarding a subpoena of JAC) that was scheduled to be heard today, January 9, 2008. I do not know yet (I've been in court all day) if that hearing happened, but there was an order issued yesterday denying the motion to continue and denying the motion for a protective order.

Meanwhile, the 1st DCA has issued an order certifying the case to the Florida Supreme Court as one of great public importance and requiring quick resolution. You can read that order if you scroll down to page 7 at this link.

And confusion continues to flourish. This from today's email:

I just received a telephone call from the Regional Counsel in our County. He began taking cases on Monday. He was informed today that they are NOT to take any additional cases or spend any money.

Now what??

That's interesting. Part of the Respondent's response relies upon the fact that the RCs have already established attorney-client relationships in many cases. I wonder who has told at least one of the RCs to stop taking cases, and if they are not to spend any money, what about the current employees?

Up and running or not?

2008-01-07T19:02:00.000-05:00

I've been surprised that no Florida news outlets that I've run across have written about the progress of the Regional Counsel offices since the official start date of January 2, 2008.

They are expending a budget as we speak. Public money is being spent. It is not in any way a bad idea to ask how the Regional Counsel offices, run by governor-appointed public officials, are doing. But there haven't been any news stories that I've found, save one.

First, lets revisit the email sent by the 5th Regional Counsel to employees after the ruling in the FACDL quo warranto action (it was first posted here):

No matter waht you hear, a stay has been issued. In the 5th, 7th & 18th Circuits I have already spoken to the Chief Judges and we are proceeding as is and as planned. I am sure the same applies in the 9th until further notice. The enclosed email is from the State advising me to continue. Until there is another order we are proceeding as planned everywhere, sorry for the confusion but personally I can tell you that I think this will be resolved by the legislature if not by the Courts. While obviously I cannot gaurantee anything I believe we will be here for the long haul.

So what are we to make of this lone news story about what is happening?:

DAYTONA BEACH -- A new state-run office created to save public money while providing attorneys for poor people charged with crimes was supposed to be up and running already, but a lawsuit challenging its constitutionality and resistance by local governments to help pay has brought delays.

Jeffrey Deen, the Orlando-area lawyer who was appointed by Gov. Charlie Crist in August as criminal conflict and civil regional counsel for the local court district, said the process has been stalled by conflict but is working locally.

My only point is that this is all confusing, and frustrating. We need to start with answering the question, has the lawsuit delayed the start date for the RCs to perform their responsibilities, or hasn't it? The courts need to know how to approach this in the near term.

Incidentally, and as usual, the story linked above does not mention dependency cases at all, only the criminal side.

The first day

2008-01-02T18:25:00.000-05:00

I'm happy to report that in Orange County we did have a Regional Counsel attorney attend shelter hearings, after being notified this morning to do so. I believe this is because courthouse staff has been proactive about trying to get information from the 5th Regional Counsel.

The Judge conducting shelter hearings today approved of my form (from the post below) and decided to use it. Thus a parent was spared from having to wait until later for counsel today.

I consider that a victory. Private (rotation or wheel) counsel will still get appointed when appropriate, though at a diminished rate than before, and parents will get lawyers at shelter, at least here in Orange County.

I've got no other reports except from Marion County, in which no Regional Counsel attorney showed up for shelter hearings (the Florida Bar News might want to rethink the headline "Regional Counsels Open for Business"). Reportedly the judge in Marion simply appointed private attorneys from the rotation list, which is risky in terms of those attorneys ever getting paid.

Either the Regional Counsel is going to perform its statutory duty or it is not. In Orange, it did; in Marion it did not. The offices are not "open for business" if they are not even appearing to represent dependency clients at shelter hearings.

How did it go in your county?

How we will keep parents represented January 2

2008-01-01T13:07:00.000-05:00

I've noticed a spike in readership as the day (tomorrow) that the Regional Counsels take over dependency defense, despite no new posts here for a while.

Relax, we have a plan.

Here are two scenarios for January 2d, 2008, and days to follow.

1. An attorney from your Regional Counsel Office is present in court to attend shelter hearings. That would be a good thing. I also don't expect it to happen, based upon what I hear. It would be great if readers could comment here, on the message board, or send me email to let us know if that happened in your county.

That attorney will represent one parent per case. Since Chapter 39 requires that parents have representation at all hearings, including shelter, there must be a mechanism for the Regional Counsel attorney to quickly and efficiently certify a conflict to the Clerk of Court so that private counsel can be appointed before or at the shelter hearing.

I know that locally there is no plan or mechanism to do that yet, and that is likely to be the case throughout the state, which will result in a whole lot of people being denied the right to counsel.

All that may be needed is to have the right form on hand, and DependencyDefense.com has stepped up and made one for you.

This link is a pdf version if you just want to review it.
This link is a MSWord file if you want to modify it for your circuit and use it.

And I do invite you to use it.

Scenario 2: No attorney from your Regional Counsel Office shows up at shelter hearings. This is a certainty in at least several counties. It violates both Chapter 39 and Chapter 27. Hopefully you have thought ahead and there will be rotation (wheel) attorneys on hand tomorrow and in the coming days at shelter hearings.

Chapter 27 still allows your Judge, on his or her own motion, to find a conflict and appoint counsel. We have created a form for that as well for you to use if you'd like and haven't come up with something better (if you have, feel free to share).

This link is to the pdf version
This link is to the MSWord file version that you can modify.

Scenario2a: What I can't plan for is what to do about the situation where the RC attorney doesn't show, the Judge certifies a conflict and gives all but one parent counsel. The best we may be able to do in the short term is to request a continuance (The statute allows for one in this instance up to 72 hours) and make noise to the Regional Counsel.

If they still don't have anyone prepared to represent that parent, the only thing that comes to mind so far is a writ of mandamus.

Note 1: Hey, you say, what's the fuss if the whole RC thing was declared unconstitutional? Answer: 1) the order was stayed; 2) we don't know what the end result will be yet; and 3) the order may not ever apply to dependency cases, although setting up this whole system just for that will give the legislature fits.

Note 2: You're welcome. Feel free to leave comments.

Just passing it on

2007-12-22T23:45:00.000-05:00

Some of this news article is not quite accurate, but it's something of interest anyway. An excerpt, if you don't want to hit the link and read the whole thing:

The newly created "conflict counsel" system, which is intended to serve as a second public defender's system in Florida, is unconstitutional and the conflict counsels and their lawyers should stop representing clients, a circuit judge ruled Thursday afternoon. The ruling could halt many criminal cases, as criminal defendants who had conflict counsel lawyers assigned to them would no longer have legal representation.

The system was set up this year by the Florida Legislature as a way to save money. Legislators said it cost too much to operate the previous system of paying private lawyers to represent indigent defendants when the public defender had a conflict in the cases.

The conflict counsel office represents defendants in cases where the Public Defender's Office would have a conflict of interest, such as when two or more people are charged in a case and the public defender represents one of them.

The state Attorney General immediately appealed Thursday's ruling, and the appeal creates an automatic stay. That means the conflict counsels and their lawyers can continue to represent clients, said Sandi Copes, press secretary for the attorney general.

There are five regional conflict counsels who are appointed by the governor for a term of four years and who oversee a staff of lawyers in a district that is the same area as the five district courts of appeal.

My prediction: the legislature will dig in its heels and bolster the law it only "reluctantly" passed, and within a year the system will cost at least twice as much as the worst projections under the old system, which actually had the feature of people getting quality representation on the cheap.

Bureaucracies never die, do they?