Update from the 2nd District Regional Counsel

I've sent two e-mail messages to four of the five newly appointed Regional Counsels (I cannot find an e-mail address for Mr. Lewis). So far, only Mr. Flyte, the 2nd District Regional Counsel has responded. Here is his message to me today:

Until we know if the Regional Counsel budget is intact or is being cut by up to 10% we cannot say how much we will be able to pay our attorneys. I do know that we can hire attorneys on a part-time basis which would allow them to keep their private practice and work out of their own offices. They would have to give priority to their Regional Counsel duties. Part-timers would be eligible for State of Florida benefits such as Health Insurance and Retirement. This should be a real incentive for many of the private Dependency and Criminal Conflict attorneys.
I will be contacting the Chief Judges in all the Circuits of my District to insure that I have information on all attorneys who do court-appointed work. I intend to offer this work back to the attorneys who have done it previously. Anyone reading the Dependency Defense Website who is interested in doing Dependency or Criminal Conflict cases in the 5 circuits, (6th, 10th, 12th, 13th, 20th) which make up the Second District Court of Appeals geographical area should contact my office at:

Jackson S. Flyte
Regional Counsel, Second District.
P.O. Box 1598
Bartow, FL 33831

We will need a State of Florida employment application and resume. We will be hiring as soon as we obtain office space in each circuit.

Jack Flyte
Regional Counsel, Second District

I replied with another question, and will pass on any more information that I get.

As a public service, for those looking for a State of Florida employment application, you can read the instructions here, or download a paper copy here.

Cue the Dr. Evil pinky move

I will represent you, Ms. Spears, for ONE THOUSAND DOLLARS.

Trouble to the north

This story is out of Georgia, but interesting because Florida does not seem to be the only State struggling with adequately funding appointed counsel. There is no mention of dependency cases in this article, though:

The Georgia Public Defender Standards Council, which took over indigent defense for most of the state in 2005, saw its budget cut and was the target of heavy criticism by some lawmakers earlier this year. Some of those same critics will be on hand today, but—with a new director, a renewed focus on cost-cutting and the transfer of the council to the executive branch—staff and committee members hope to smooth some of the bumps that accompanied the system’s first two years in operation.

Sounds familiar.

The issue of conflict attorneys is particularly urgent, said Sarah Haskin, deputy director of administration at the council. When adjusting the council’s budget earlier this year, Senate budget writers cut the council’s request for conflict counsel from $8 million to $2 million; the year before, she said, the council paid $11 million for such attorneys.

From eight to two?

“We have no control over the amount” needed for conflict counsel, noted Martin. “When a judge says, ‘I want counsel appointed,’ we can’t argue.”

As the kids say, "True that".

I'm sure the experts will get paid

Attorney Bob Sombathy tried to find answers Monday to questions about getting paid for his hundreds of hours of work on behalf of former boot camp drill instructor Patrick Garrett.

Sombathy filed a motion on July 19 asking the state Judicial Administration Commission to pay the fees he already has accrued. The commission objected, and a hearing was scheduled for Monday to resolve the issue.

Sombathy is seeking $31,000 for 300 hours of work he has put into the case so far.

“I don’t know if you’re familiar with this case,” Overstreet told Presnell. “But there’s an extraordinary amount of discovery involved in the matter with eight separate defendants. There’s something like 25,000 pages of documents. The trial is coming up, and people need to get paid.”

Smith said Monday that expert fees in the case, for both the state and defense, could top $100,000.

I have mixed feelings about this. I accept flat-fee cases as appointed counsel with my eyes wide open. The great majority of my flat-fee cases would have earned far more money if billed at an hourly rate, even under the old low rate locally of $80 an hour. Still, some do take less time and work in my favor, so I've accepted the assumption of risk. On the other hand, some cases are not just complex, but extraordinary.

There is something disconcerting, I admit, to hearing about a case where experts will be paid $100,000, and the attorney who orchestrates the entire defense, and is himself an expert, may only get the $1,000 flat fee.

Version one of the attorney directory is up

I can't add you if you don't contact me. Of the emails I've received so far, I only declined to list one, because I insist that those listed have dependency court experience, and not just an interest.

The directory page is here. I'll be updating no more frequently than every couple of weeks, as new requests for listing come in.

A strategic plan, you say?

I don't know what it is, but I guess it is good to be aware that it exists:

Gov. Charlie Crist announced members of the new Children and Youth Cabinet on Tuesday, naming Lt. Gov. Jeff Kottkamp to serve as chairman.

''The cabinet is charged with developing a strategic plan to promote collaboration, creativity, increased efficiency and information sharing,'' said Crist at a Capitol news conference. ''They will streamline the distribution of critical services that affects children.''

JAC adds Regional Counsel section to its website

So far it's all about personnel matters and quite generic, but I'll take a look from time to time to see what's added.

Ouch

Did a judge really just find that DCF committed medical neglect?

"This court finds that the failure to consult with the children's prior medical doctors and caretakers, and a careful review of all medical records, which were extensive, and the children's medical history was, in fact, medical neglect," the judge wrote.

Hit the link and read the story. This part stands out for me for two reasons, one that if the parents had been indigent their respective lawyers would get $1,000 for saving the family from tragedy, and two, that when I myself was a DCF attorney I used to tell my clients that there are two sides to "liability", and it really isn't always best to err on the side of child removal. This is a good illustration of the other side of the liabilty coin:

In her decision, Garcia-Wood ordered the state agency to pay for the Evanses' legal fees. Hymowitz said they are more than $300,000.

The Evanses have filed a federal lawsuit against three DCF officials, alleging they violated the couple's civil rights by taking the children away. Emily was in shelter care for 144 days and Jacob for 77 days, until they were able to live with grandparents, according to the lawsuit.

Once the children were with their grandparents, Sara and Donald Evans were allowed to see them but not touch them, according to the federal lawsuit. Records indicate Emily has had a series of metabolic and developmental problems, while Jacob had gastro-esophageal reflux.

The family now lives in a constant state of paranoia, fearing they could be separated at any time, said Robert Buschel, one of the Evanses' attorneys.

In the federal case, attorneys for the DCF officials argue that the state workers acted within the scope of their jobs and did not deprive the family of their rights.

Seeking custody of your child is abuse

Following up some more on the Cuban custody case, we read this:

The man is fighting claims by the Department of Children & Families that he is not a fit parent. The department had accused the man of neglect, abandonment and abuse of the girl. The state alleges the man is abusing his daughter by seeking custody even though she has bonded with the family that has custody of her and wants to adopt her.

Let that sink in.

This, in part, is why dependency defenders do what we do.

Now, for the point of the story:

A Miami-Dade County juvenile court judge on Monday dismissed abuse accusations against a Cuban father seeking custody of his 4-year-old daughter and told child welfare attorneys their allegations that the man abandoned his child are weak...
Ira Kurzban, the attorney for the father, called the department's charge "ridiculous" and said if accepted it "would end the dependency system entirely." Circuit Court Judge Jeri B. Cohen agreed, saying it was the first time she had ever heard of a parent accused of abusing a child because they fought for custody.

With all respect, Your Honor, it is not the first time I have heard of it happening.

The case will continue, however:

The judge's decision leaves two claims remaining in the state's dependency petition against Izquierdo, and the judge left little doubt she is not impressed by one of those -- that Izquierdo abandoned his daughter by allowing her to move to the United States and not sending her birthday cards or money after she arrived.

''With everything you have, even if you pull a rabbit out of a hat, I just don't see how'' the state can prove Izquierdo intended to abandon his daughter, the judge told Department of Children and Families attorney Rebecca Kapusta.

You know, I'm not really a DCF basher. This is important, though, because it is about the practice of law. I am not dredging up some past failure just to do it; this is happening right now:

Signaling her frustration with DCF's legal team, Cohen urged the lawyers to take a second look at their entire case, a theme she has returned to frequently during weekly hearings. ''You need to listen to what I'm telling you,'' she told Kapusta and the two other lawyers representing DCF.

``You need to be intellectually honest with yourselves. . . . Or are you just so locked into something because you are state employees and attorneys, and you can't see the forest for the trees?''

Cohen's suggestion that attorneys reconsider their case marked the second time Monday that the judge criticized the state for its handling of the case. Earlier in the day, Cohen scolded DCF for failing to notice, until the last minute, that they lacked a crucial court order.

Newspapers should get their news here

As we noted below, the press release from the Governor's office had an error, interchanging various facts about the first and fifth circuit Regional Counsels.

As things go with press releases, they usually get printed as is.

Lost records in the Cuban custody case

Following up on the two posts below, I found this story, which begs the question: Is a record actually "lost" if neither DCF's CWLS attorneys, nor the case manager assigned to the case, nor the CPI initially assigned to the case, nor the Judge's notes, nor the Clerk of Court, have the record? Or, did it never exist?

There should be a court order to the effect of what DCF claims if it is true. At the very least, if there is a disconnect between what court orders said at the time and what and what DCF believed to be the case at the time, it should be reflected in notes, or "chrons" required to be kept by DCF of conversations with parents.

How do we have a dependency 18 months after shelter with no order giving a basis for the dependency, voluntary or otherwise? I'd love to know who represented the Mother back then.

Three days before a controversial trial over the fate of a 4-year-old girl at the center of an international custody dispute, an attorney for the Department of Children & Families dropped a bombshell Friday: They have no records to show that the girl's mother ever agreed to give up custody of the child.

For months, DCF and attorneys for the girl's birth father and foster father have planned for a trial in which the state will seek to prove that Rafael Izquierdo, the girl's Cuban father, is unfit to raise her. The trial is expected to begin Monday.

But at a hastily called emergency hearing Friday morning before Circuit Judge Jeri B. Cohen, DCF attorneys acknowledged they have no documents to prove the girl's mother, Elena Perez, agreed to give up custody.

More on the Cuban custody case

The case in Miami I posted below has a wrinkle I noticed in another new account. It seems that DCF is in for a pound in this one. I'm not exactly sure if "spearheading" means actually leading the in-court legal efforts of DCF, but if so, that would be unusual for the Department's Chief of Staff stationed in Tallahassee:

Jason Dimitris, the Department of Children & Families' chief of staff, who is spearheading the state's case against the father, gave Cohen a copy of the e-mail, calling it ''very disturbing to us.'' The DCF is seeking to prove the birth father is unfit to raise the girl.

[Ed: if DCF is seeking to prove the birth father unfit, they should have done so and allowed the father the chance to be heard in February of 2006, not August of 2007, after a child bonds with a foster family]

UPDATE: Another, older article seems to confirm that the DCF Chief of Staff is, indeed, sitting in the counsel's chair in the proceedings:

In a juvenile court hearing last month, DCF chief of staff Jason Dimitris, an attorney who is spearheading the state's effort, announced that the DCF would introduce the father's consent as evidence of abandonment. The girl's mother and father were not married.

On "accepting services" -- The Cuban custody case

What is the story behind the following sentence, I wonder: "Cohen said Monday morning that Eig would sign a dependency order to document what occurred in court 18 months ago. That prompted a tense hourlong argument with lawyers for the girl's birth parents."

Here is the story. Synopsis: an emotional case is exploding in Miami over child custody. All natural parents want a child to live with her father in Cuba. DCF wants the child raised by a foster parent.

This catches my eye as well: "Though the transcript of a hearing read in court Monday morning by Circuit Judge Jeri B. Cohen shows Perez agreed to accept services from the state Department of Children & Families, the judge who was hearing the case at the time, Spencer Eig, did not sign an order declaring Perez unfit to raise the girl"

The portions quoted above suggest a sloppy dependency process that, although it is admittedly difficult to involve someone in Cuba, perhaps made insufficient efforts to determine the natural father's wishes and intentions a year and a half ago when the case first went into dependency court.

On another note, how would you like to take on all the resources of the State in this case and represent the natural father for the whopping flat fee of $1,000?

Here's another chunk of the developing story:

Cohen at first declined to discuss the missing documents.

''Can we be heard?'' asked Ira Kurzban, a lawyer for Rafael Izquierdo, the girl's birth father. ``This is outrageous. This is Alice in Wonderland.''

Cohen read long passages from the transcript of the Feb. 21, 2006, hearing, in which Perez described in detail her struggles in the United States after she legally emigrated from Cuba with her two children.

...
Perez said she called 911 because she desperately needed help. [ed: Many of my nightmare dependency cases start with a parent voluntarily asking authorities for "help".]

''I did this looking for protection for my children,'' she said.

Both Kurzban and Greer Wallace, Perez's lawyer, said the transcript shows Perez did not give up custody voluntarily. For one thing, they said, Perez did not have a court interpreter. A relative of Perez's estranged husband, who may have had motives of his own, they said, translated.

The transcript shows Perez appeared confused: ''It's just that I don't understand,'' she said at one point.

Kurzban asked Cohen to stop the proceedings Monday morning to give him time to ask a Miami appeals court to overrule her decision to allow the missing record to be re-created.

E-mail from 2nd District Regional Counsel

Newly named Regional Counsel for the 2nd district, Mr. Jack Flyte, e-mailed saying he'd found the blog. Evidently my e-mail to him did not get to him (I blame AOL's enthusiastic filters) but he wrote anyway.

He says there is a meeting next week between the new RCs and JAC, so I won't bombard him and the others with questions until after they've gotten some more information.

Please stay tuned, and I'll let you know if and when the others respond.

The MIT study on foster care

This study is critical to creating awareness of what dependency defenders have long known to be true -- keeping children out of foster care is, on average, tremendously valuable to society. It saves money and lives.

It's a long study, and I intend to comment on it further, as well as use it to help build what Florida really needs to safely preserve families.

Early reaction to the Regional Counsel appointees

The comments in a post at the Justice Building Blog (a South Florida legal blog) cover several topics, but a few of them are about their local Regional Counsel appointee.

At least one is scathing, and a few are supportive. The approach that I am taking here is that the new RCs have a very difficult, if not almost intentionally impossible, job ahead of them, and that presents both a challenge (which I like) and opportunity (which I like) for those who are pre-disposed to find creative solutions to complex problems.

More on what solutions I envision soon.

My email to the new Regional Counsels

I've just sent the following to three of the five newly named Regional Counsels. I will post any replies I get with their permission. I could not find an e-mail address for two of the five, Jeffrey Lewis and Jeffrey Dean, so if anyone can help me out there please contact me at cam @ dependencydefense.com (remove spaces):

Dear Sir:

Please allow me to extend my congratulations on your appointment by Governor Crist to the Office of Criminal Conflict and Civil Regional Counsel. I know that many in the community of private attorneys serving parents in dependency cases look forward to working with you and doing what we can to help your success in maintaining quality representation for parents in Chapter 39 matters.

I am building a website called DependencyDefense.com, and would like to post accurate information about you and the office you are building both on its blog and on the site itself. If there is a particular bio or website that you would like for me to link to so that dependency defense counsel can get to know more about you, please let me know. In addition, I would like to interview you about how you intend to approach the child dependency portion of your new duties for posting on said blog (dependencydefense.blogspot.com). If you are willing to be interviewed, I can do so either by telephone or e-mail, according to your preference.

If I can be helpful in discussing dependency cases or in the training of the lawyers you hire to handle dependency cases, I and others in the dependency defense community would be pleased to be a positive part of the challenge before you.

Congratulations, RCs

So that you don't have to read the entire press release below, meet the new boss:

1st District: Jeffrey Lewis
2nd District: Jackson Flyte
3rd District: Joseph George
4th District: Philip Massa
5th District: Jeffrey Deen

Initial impressions: 1) If you are nominated to something appointed by Governor Crist, you might have a leg up if your first name starts with the letter J. 2) all five of the new Regional Counsels will be serving in the area of the state in which they currently reside.

What's next: For DependencyDefense.com, it is to congratulate these gentlemen, contact each, and ask to start a dialogue regarding how to deliver quality representation to parents in dependency cases.

UPDATE: an alert e-mailer points out that the press release gets part of the bios of two of the RCs incorrect. Jeffrey Lewis is from Pensacola and Jeffrey Deen is from Oviedo.

At least that's what we reported here and here when the nominees were first announced.

The 5 Regional Counsels are named

Here's the press release in it's entirety:



GOVERNOR CRIST APPOINTS FIVE TO THE OFFICE OF CRIMINAL CONFLICT AND CIVIL REGIONAL COUNSEL

August 22, 2007

Contact:

GOVERNOR'S PRESS OFFICE
(850) 488-5394

TALLAHASSEE – Governor Charlie Crist today appointed directors to the five Offices of Criminal Conflict and Civil Regional Counsel.

“The Office of Criminal Conflict and Civil Regional Counsel provides important legal representations to some of Florida’s most vulnerable,” said Governor Crist. “I am grateful to these dedicated public servants for accepting this call to serve.”

The Office of Criminal Conflict and Civil Regional Counsel provides legal services to certain Floridians who are permitted a court-appointed counsel under the Federal and State Constitution. These appointments are subject to Senate confirmation.

The following appointees to the Office of Criminal Conflict and Civil Regional Counsel are appointed to terms beginning August 21, 2007, and ending July 1, 2011.

Jeffrey Lewis, 52, of Oviedo, will serve the First District Court of Appeal. Lewis most recently worked as a partner with Deen & Laurence P.A.

Jackson Flyte, 45, of Winter Haven, will serve the Second District Court of Appeal. Flyte most recently worked as the sole practitioner in the Law Offices of Jackson S. Flyte.

Joseph George Jr., 52, of Miami, will serve the Third District Court of Appeal. George most recently worked as an attorney with Joseph P. George Jr. P.A.

Philip Massa, 58, of West Palm Beach, will serve the Fourth District Court of Appeal. Massa most recently worked as an Assistant Attorney General.

Jeffrey Deen, 52, of Pensacola, will serve the Fifth District Court of Appeal. Lewis most recently worked as the Assistant Public Defender for the First Judicial Circuit.

6 weeks with no attorney

Will Florida appellate courts be facing a flood of ineffective assistance of counsel claims soon?

Crime doesn't pay, and defending accused criminals doesn't either.

Defense attorneys are huddling to come up with a plan to defend reputed gang members accused of breaking federal racketeering laws after learning Thursday at least two will be appointed to the expensive cases while being paid only $2,000 by the state.

Two reputed gang members - Genaro "Nightmare" Agustin and Mario "Sleepy" Contreras - have been in jail for about six weeks with no attorney...
Defense attorney Mark Lipinski, who turned down a racketeering case against an alleged gang member, said the discovery alone he was presented with weighed 40 pounds and included 150 witnesses. He said the cases, on average, consume 500 to 600 hours and 18 months. Haworth concurred, stating that photocopying alone will exceed the $2,000 pay rate the state will pay to whomever takes the case.

More must-have links

I've finally had some time today to start to build up some of the links that are either particularly inspiring or particularly informative to dependency defenders. Rather than devote full posts to them -- yet -- I need to go ahead and memorialize some of what I've been reading for some time and will eventually incorporate into the dependencydefense.com site.

1. Mary Callahan of Maine. Google her, and there is a lot there. Here is one article of hers, presented in html for ease of viewing. A word document for download is also available if you search for it..

2. The NCCPR Texas report. Pages 63 and 64 are the important part, and track perfectly with findings from other states on the same issue (of what resources, requirements, and compensation are needed for dependency defense attorneys to best protect children)

3. The National Council of Juvenile and Family Court Judges site. Their report for download as a pdf repeats the themes I've seen over and over again about the social utility of allocating enough resources for professional dependency defense.

4. The NCCPR's latest report on child removal rates in Florida. Mixes some good news with cautions that, to me, underscore the theme of DependencyDefense.com, that good defense lawyers actually save public money in the big picture and contribute to child safety. Also gives indirect praise to Alan Abramowitz, a man I like.

Today's news

While we await Governor Crist's choices to head the Regional Counsel offices, there is other news.

Democratic leaders in the Florida Legislature asked top lawmakers Thursday to convene a series of oversight hearings into recent scandals at the state's long-troubled child welfare agency, including the recent rape of a Miami foster girl.


Florida Department of Children and Families Secretary Bob Butterworth has agreed to participate in a child protection roundtable today in Fort Myers....The roundtable was inspired by the recent murder of 3-year-old Zahid Jones Jr. His mother’s boyfriend is accused of the murder.

DAYTONA BEACH -- Problems with a new computer system that tracks children in foster care have local officials scrambling to make sure children are being checked on properly.

Local officials and caseworkers say they are being forced to double check and re-enter information into the $26 million Florida Safe Families Network because state reports are "inaccurate" and have contradictory and duplicate information.

[ed: How much did HomeSafeNet cost again?]

While I'm posting links

The website for the National Coalition for Child Protection Reform is a must-visit. There are fascinating links all over the site.

Of particular interest to DependencyDefense.com are its state and local reports. I remember one of them concerning Florida, entitled "The Price of Panic" has done much to help me articulate why defense attorneys are so vital to the system -- and how good dependency defenders save the public a mountain of money.

Food for thought

Again, I'm not vouching for the information at this link, but it is a good reminder to consider the Federal Constitution in the course of a dependency defense.

Free motion templates

Here's a link that is primarily to aid those representing criminal cases in which someone is accused of child abuse.

I don't vouch for their quality, but invite you to search for things that may be helpful to you.

Note also the FREE seminars for streaming on your computer, at least one of which might be of use to dependency defenders.

Verdict against DCF

Here is a very brief story breaking now. I'll look around for more details.

A circuit court jury in Hillsborough County hit the long-troubled Department of Children and Family Services with a $6.4 million verdict Tuesday.

The jury found the department failed to act against a counselor whose abusive treatment techniques led to the suicide of a 10-year-old boy in 1998.

1 out of 60

If dependency defense is a highly specialized and under-appreciated field of law, capital murder defense seems to be more so, at least as measured by those willing to do it under the new rules.

I'll skip to the last few sentences of this story.

Fort Myers attorney Ian Mann, who will not take additional court-appointed cases, said capital murder cases could clog the system.

"When it happens, you're going to be in a position where these cases go nowhere fast," he said. "It's rare, but it will happen."

Shirley said local defense attorneys have been keeping in touch, waiting to see what happens with the new law.

"We're trying to send the Legislature a little message that we appreciate them trying to save money — this is just not the way to do it," he said. "The system is going to crash — I think this is what we're waiting on."

The entire article is worth a look.

Of the 60 attorneys listed on the circuit's registry of attorneys willing to take cases, only 36 have signed a contract with the Judicial Administration Commission, the Tallahassee agency that oversees statewide court operations and pays court-appointed attorneys. And of the 36, only one attorney, Kevin Shirley of Punta Gorda, is qualified to handle capital death penalty murder cases.

Dependency Defenders -- how you can help

As I noted below, blogging has been slow. One reason is that my family has taken priority over blogging for the last few weeks. Another reason is that there is simply no news to pass on. There have been no significant press releases or articles in the last few weeks about the selection process of the regional counsels, nor any about how the new offices of are taking shape. At least there haven't been any that I have found.

I do think about dependency defense constantly, however, and am anxious to flesh out the dependencydefense.com website. So here is what you can do to help, if you are inclined:

1. If you are a private attorney who intends to start or continue to take court appointments in dependency cases, and wish to be included on the dependencydefense.com site as part of an attorney directory, let me know via email. Those who already have done so, I still have your information and will put it all up when I have some more.

2. The website will soon include a library of appellate opinions in .pdf format that will cover basics that a defense attorney should have ready at the various stages of a dependency case. It would be great if those of you out there in this field of law in Florida would contribute. Do you know of a must-have opinion that ought to be included? Please let me know via email.

3. Are you interested in joining a message board for dependency professionals, or even of joining this blog as a co-blogger? Let me know.

To email dependencydefense.com, use the address cam @ dependencydefense.com, and remove the spaces.