The California system?

At a lunch meeting this last Wednesday, an elected public official made the comment that the new Regional Counsel system will work, as it already works in California. I was not aware of that, so am looking for information on it.

Can any of you help me out with that?

The thing is, what I do find doesn't mesh with the comment. Take this for example:

This page provides information about Placer County’s Assigned Counsel Program. Occasionally, a case arises where Placer County’s contracted primary Public Defender and first and second level conflict firms must declare a legal conflict of interest, so they cannot defend persons financially unable to employ private counsel. The Assigned Counsel Program establishes a process which enables the Superior Court to access and appoint an attorney from a list of interested pre-qualified attorneys to provide defense services.

Pop Quiz

Pull up this PDF file of the ABA's "Ten Principles of a Public Defense Delivery System" and pay particular attention to principles 8 and 10.

If the Regional Counsel offices are going to rely, as I've come to learn that they will at least initially, upon part-time attorneys under contract who will operate out of their own offices, will those principles be met?

Principle 8: "There is parity between defense counsel and the prosecution with respect to resources..."

Principle 10: "Defense counsel is supervised and systematically reviewed for quality and efficiency according to nationally and locally adopted standards."

Friday roundup on costs of foster care over family preservation

No need to comment:
Story number one:

A 12-year-old Jacksonville girl has been awarded $788,421 in a civil lawsuit against a former Department of Children & Families employee who allegedly sexually abused her seven years ago, an attorney for the child said Thursday....The alleged abuse occurred in July 2000 while the child was being taken to emergency shelter care after her mother was arrested for child abuse for excessive corporal punishment, Cabrey said. But it was not reported until a year later when the youngster disclosed the information to a therapist...The girl's 26-year-old mother, whose name is being withheld to protect the child's identity, has custody of her daughter now. She said her daughter is still receiving counseling, is very clingy and has nightmares.

OK, one comment. Mom has custody. That was certainly a worthwhile shelter vs. providing sufficient services decision, wasn't it?

Story number two:

For 10 years, agents with Florida’s Department of Children and Families placed children with foster mother Nellie Johnson, despite multiple reports that she abused kids in her care.

Now, the agency has agreed to pay more than $14 million to the 20 children placed in Johnson’s home. She was convicted of child abuse and neglect in 2003 and sentenced to 60 years in prison.

ED: read the whole story. Really.

DCF elects to die on that hill

I've passed on news of the Cuban custody drama in Miami in several posts below. Here's the latest.

I'll start with the DCF response and then back up.

Attorneys for the Department of Children & Families maintain that taking her from the Cubas household constitutes ``endangerment.''

The Cubas household is where a child alleged to be dependent lives with her sibling who has been adopted by the Cubas. Are you following so far? To remove a child from that one particular home would endanger her, according to DCF. Now here's the ruling that DCF was responding to:

A Cuban father fighting to remove his daughter from her Coral Gables foster family is a fit parent, a judge ruled Thursday -- but that doesn't mean the little girl at the center of the international custody dispute will return to the island with him.

Before a courtroom packed with reporters, attorneys, child-welfare advocates and therapists, Circuit Court Judge Jeri B. Cohen said the state failed to make its case that Rafael Izquierdo had neglected or abandoned his daughter.

The state failed to make its case. The father has not abandoned his child. His parental rights are fully intact. But DCF, which is in fact an enormous and powerful agency of the government of the State of Florida is taking the position (as it does very, very regularly) that it would endanger a child to leave the home of people who just happen to want the child.

By the way, that last comment is not meant to impugn the motives of the Cubas family. I don't know anything about their motives, and don't mean to taint them with the distate I've gained of many other foster parents from past cases.

My point is rather that DCF's response is positively chilling for any parent in Florida who may ever be accused of being a lesser parent than a different parent that the state government has declared to be better.

UPDATE: A different Herald article contains some excellent reporting and insights into what dependency defenders face every day:

Bruce A. Boyer, a law professor who heads Loyola University's children's law clinic in Chicago, called ''really, really scary'' the notion that a fit parent can be deprived of his child. ``Before a state can interfere with the relationship between a parent and child, it has to first establish that something has gone wrong.''
The Florida Department of Children & Families, together with the girl's court-appointed guardian ad litem, are asking Miami-Dade Circuit Judge Jeri B. Cohen to forever strip Izquierdo of custody over his daughter by granting Joe and Maria Cubas permanent guardianship. They say the girl has so completely bonded with her half-brother and foster parents that separating from them now would endanger her emotionally.

That last sentence makes my blood boil. Claiming that DCF believes that it is wrong to remove children from people -- whether they are parental figures or just plain parents -- because the children are bonded with those people flies in the face of removal after removal after removal every day in this State. The harm that removal and placement of children in foster homes does to children is, I have to say, not a heavily weighted consideration in shelter hearings, and is not a consideration at all in typical internal DCF decisions whether or not to remove children.

'In this case, what it appears the state is seeking to do is create a new jurisprudence that focuses on potential harm to the child,'' Perlmutter said. ``It is very novel, and very untested.''
Advocates for carving out a robust framework of children's rights ''are trying to drive a wedge in the long-standing case law that derives from decisions of the U.S. Supreme Court that makes a parent's interest -- a fit parent's interest -- ultimate in the determination of custody,'' UM's Perlmutter said.
The legal intricacies almost certainly will make the new hearing a battle of experts. Those supporting the Cubas family will try to show that the girl is far too attached to both her 13-year-old half-brother and her foster parents to risk uprooting her. Those for Izquierdo will say that small children are resilient, and that the girl already is forging a new bond with her birth dad.

And how, exactly, will the court be able to deal with the abandoment that the child will feel when she becomes an adult and wonders why her father wasn't able to win at court? And why is it fair to make the assumption that the foster parents will never abandon the child or do anything to endanger her when DCF has failed to show that the real father has never done any such thing either? Be afraid of the implications of this case if the Cubas win. Be very afraid. Especially if you are a poor parent.

And finally from the story, here is a comment on something that I can assure you already does happen:

...the case raises the specter of ``giving judges unfettered power to decide that a child is better off being raised by some other family. A judge could simply decide a child would be happier in a nice house in the suburbs, with a swing set and a puppy -- and maybe better schools.''

Daily Business Review on the Regional Counsels

Alas, once again no discussion at all of the impact on dependency cases -- and the families impacted by them.

And once again, this link is via the Justice Building Blog.

There is perhaps too much to comment upon in this article. I recommend that you read it.

A couple of excerpts highlighting the article's main points:

First, is that with a "B"?:

Cragin Mosteller, spokeswoman with the Florida Association of Counties, said in a telephone interview that when the Legislature passed SB 1088, it created a swath of unfunded mandates that will end up accounting for an average of 8 percent of each county’s budget. The total figure for all costs passed-on to the state’s 67 counties is around $1 billion annually, Mosteller said.

Now, on to the particular problems in South Florida:

Miami-Dade County has allotted no money to fund the Conflict Counsel’s office space or supporting infrastructure. Critics also note that Crist’s choice to head the Miami office has no trial experience.
Some critics note that Crist’s newly appointed director of the Office of Criminal Conflict and Civil Regional Counsel in Miami hasn’t worked a criminal case since he was a law student 22 years ago and has never tried a case of any kind before a jury.
As he prepares to begin work by a scheduled start date of Oct. 1, George is looking for commitments to fill the roughly 25 attorneys who will work under him. He has four so far, but is struggling to find lawyers qualified to take death penalty cases.

Read the whole thing.

The Florida Indigent Defense Association

Thanks to the justice building blog, I am now aware of FIDA -- the Florida Indigent Defense Association. Take a look at their website at this link. Incidentally, WhoIs data says that the website was registered July 17, 2007. From their site:

Dear PCAC Colleagues,

As you are aware, Senate Bill 1088, which eliminates 85% of private court appointed cases, has passed. While this is a severe blow to our representation of the indigent, all is not lost.

In response to this serious threat to the rights of the indigent, we have formed a not-for-profit organization called the Florida Indigent Defense Association, Inc. (FIDA). The mission of FIDA is to fashion a new law, in conjunction with other well-established organizations, such as FACDL, that protects the rights of the indigent accused by providing competent legal representation.

FIDA has hired Barreto and Malloy, one of the top lobbyist firms in Florida. This firm raised millions of dollars for the governor and other members of the legislature during the last election cycle. It is their professional opinion that our organization needs to raise $350,000 for the political process. Our hopes are to re-establish the PCAC system by reaching this fundraising goal. We have already raised and have commitments in excess of $100,000 from Miami and Broward PCAC lawyers.

We are looking for attorneys in all regions of Florida to join as members as well as serve as board members and/or participate on the fund raising committee.

Our member lawyers have made personal commitments from $100.00 to $6,000 depending on the PCAC income they receive. There are approximately 2400 attorneys participating in the PCAC system. We are asking everyone to step up and participate, so that we can attain our goal. All help is appreciated regardless of the amount.

I'm not endorsing the effort. I'm just passing it on, and hope to learn more about FIDA.

What is PCAC?

5th District Regional Counsel fields questions

Yesterday I attended a lunch meeting of the Central Florida Criminal Defense Lawyers as a guest. The chief judges of Orange and Osceola Counties were present, as was Mr. Jeffrey Deen, who will upon confirmation serve as the Regional Counsel for the 5th District.

He took questions, and I took notes. I will post much more on this in the next couple of days.

If you attended and want to discuss it, I invite you to join the Dependency Defense message board.

The Colorado Court Improvement Program study

Use this link to read download the study as a pdf file.

In 2006, the state of Colorado Judicial Department, through its State Court Administrator's Office (SCAO) contracted with the National Center for Sate Courts (NCSC), the National Council of Juvenile and Family Court Judges (NCJFCJ), and the National Association of Counsel for Children (NACC), to review and analyze current Respondent Parents' Counsel practices across the state of Colorado and to identify the impediments to effective representation of families in child dependency and neglect cases. The project team examined the issues facing respondent parents' counsel using multiple data sources and both qualitative and quantitative methods.

Enjoy. The study is only a few months old, and I hope to comment more after I've read through it again.

The FACDL pulls the trigger

The Florida Association of Criminal Defense Lawyers has filed a Quo Warranto Petition with the Florida Supreme Court seeking to enjoin the State of Florida from allowing the Regional Counsels to begin operating.

Here's a news story about it. Here's another one.

I like source documents, however. Here is a link to the FACDL's actual petition.

Stay tuned. I'm on record as thinking that going back to the old hourly system is not a hill worth dying on. I'm sure that many readers will disagree with me on that. I'd rather help make the new, clearly flawed, system find a way to work that preserves two things: 1. competent and effective representation of those accused by the state of child abuse, etc., and 2. opportunities for competent and experienced attorneys to continue to specialize in dependency defense.

Easy to say. Hard to do.

What is the definition of endless?

I got e-mail nearly a week ago from one of the Regional Counsels (Jackson Flyte, who has been very gracious in corresponding with the author of this little blog). Before I post some of his e-mail, I'd like to express a few qualifiers:

1. I'm grateful that he takes the time to answer my messages.
2. It is important to keep such communication between the Regional Counsels and private defense attorneys open.
3. Lastly, I may not agree with everything in these e-mails, and am likely to say so.

So here we go:

The Regional Counsels are all busily trying to get space from the county offices some of which are cooperative and some clearly are not. I am having no problem finding experienced attorneys to handle both criminal and dependency work. This is particularly true when they are offered a part time employment package that lets them maintain their private practice and still receive state benefits including family health, retirement, disability, life insurance, etc... The greater challenge is convincing Judges that they too must make sacrifices under this new system. The Courts will no longer have an endless supply of court appointed counsel to rely upon to handle their cases. They will instead be required to adapt to the schedules of the Assistant Regional Counsels.

Jack Flyte

Regional Counsel, Second District

The bolded portion above seems to be good news for Mr. Flyte. I've gotten the impression that he took the job knowing that he would have to improvise, adapt, and overcome.

The two sentences after the bolded portion give me pause, however. How do you define endless? Either parents will (as required by Florida Statutes Section 39.402(8)(c)(2)) "[be advised of] their right to counsel to represent them at the shelter hearing and at each subsequent hearing or proceeding, and the right of the parents to appointed counsel, pursuant to [indigency requirements]", or parents will not be afforded that statutory right.

Either the law will be followed, or it will not be. I don't, therefore, know what "endless supply of court appointed counsel" means when it comes to dependency cases.

There has to be one attorney per eligible parent, no more and no less, starting at the very first hearing at which they appear.

I can tell you that when our local ISC changed our compensation to a $750 flat fee between January 1, 2007 and July 1, 2007, the ten of us who stayed on the rotation list throughout didn't feel like a particularly endless supply.

That said, it is easy to shoot arrows at any new endeavor, and to the extent that I am doing that rather than being more constructive in response to Mr. Flyte's short message, I am simply trying to talk through what dependency defenders who are concerned about due process rights, and what that means in practice, are worried about.

In case you missed it, see my earlier rant on this topic.

New names added to the attorney directory

It's been slow blogging the last several days, but that's not for lack of interesting news.

I've added five new attorneys to the DependencyDefense.com attorney directory, and will continue to do so from time to time as long as qualified people wish to be added.

A couple of people have registered at the new Dependency Defense message board. I am glad to see that, but we need more to get the good conversation going. For those who have registered, go ahead and post a comment or start a thread. Somebody's got to go first!

Florida Bar News Article on the Regional Counsel offices

I'm sorry I missed this until today. Here is the link to the article. It contains quotes from four of the five new Regional Counsels.

If any of it is actually news, I suppose it would be this:

In interviews with the News, the new counsels said they were working hard to set up their offices, but agreed that wouldn’t happen by October 1, the date specified in state law. They noted that law called for the regional counsel to be named on July 1, while that didn’t actually happen until August 21, which left them the impossible task of setting up offices in about six weeks.

Although they can’t meet the October 1 deadline, the regional counsels said they hope to be operating shortly after that date. In the meantime, they’re working as fast as possible.

We get some numbers as well:

Lewis, for the First DCA, must provide conflict counsel for public defender criminal cases and dependency counsel in civil cases over a 32-county area covering six circuits. He will start with a $7.5 million budget and 108 positions. At the moment, he foresees the need to open at least one branch office in each circuit.

Fourth DCA conflict counsel Massa estimates his caseload will be between 7,000 and 10,000 cases annually, counting dependency and criminal conflict cases. He expects to have about 40 attorneys and a support staff of 23, with a budget of around $5.9 million. He’s looking at having offices in Broward and Palm Beach counties, and likely one in Stuart or Ft. Pierce to handle cases from the 19th Circuit.

Deen will be covering four circuits as the Fifth DCA regional conflict counsel. He will have 67 employees and expects 40 to 45 will be attorneys. His budget is around $5 million, and he was still studying projected caseload numbers.

George, the Third DCA regional conflict counsel, laughingly said the first part of his job was wading through about 50 pounds of paperwork. He expects to have a budget of around $4 million and a staff of 40 to 45 people, with more than half being attorneys. He anticipates having around 5,000 criminal cases annually, plus another 1,000 dependency cases.

The article also listed contact information for 4 of the 5 RCs for those interested in employment:

Here’s a list of the people each regional conflict counsel said he is now looking for. Contact information is provided if you are interested in applying:
• Jeffrey Lewis, who is running the conflict office that covers the geographical area of the First District Court of Appeal, said he is looking for an office administrator, who in turn will assist in setting up the office and hiring other employees. His priority is for someone who is familiar with how state attorney or public defender offices operate, and with the state’s purchasing procedures. Lewis can be reached at (850) 728-7130 or via e-mail at jeffreylewis_rc1.jac.state.fl.us

• Joseph George, of the Third DCA regional office, is looking for an office administrator and/or human resources director to help him with the hiring of other employees and in setting up his offices. He can be reached at (305) 670-6706.

• Philip Massa, who is running the Fourth DCA regional office, is ready to take applications from anyone interested in working for his office as an attorney or in a support staff position. Applications can be sent to Philip J. Massa, Criminal Conflict and Civil Regional Counsel, Fourth Region, P.O. Box 1654, Tallahassee 32302.

• Jeffrey Deen, of the Fifth DCA regional office, is looking for support staff as well as dependency and criminal attorneys. He particularly hopes to find attorneys from each area of his region to handle the cases from that area. Deen can be contacted at 1759 W. Broadway St., Suite 3, Oviedo 32765, or by fax at (407) 971-6777.

(Second DCA regional counsel Jackson Flyte could not be reached in time for this article.)

Not to be Johnny-on-the-spot or anything, but Mr. Flyte COULD be reached by this blog three weeks ago and gives us this (perhaps temporary) contact information:

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.


ED: By the way, why does one of the RCs have a JAC email address and the others do not? I think I'll try to follow the format of name_rc#@jac.state.fl.us and see what happens

Shadowy?

From an editorial out of Daytona:

Constitutional question only part of this mess

The idea of a second, shadowy public defender system always seemed dubious to those most familiar with the Florida criminal-justice system, including Gov. Charlie Crist.

Now -- as the newly appointed heads of five regional agencies scramble to meet an impossible deadline -- the state association of criminal defense attorneys says the scheme might well violate the Florida Constitution. They've asked Attorney General Bill McCollum to consider challenging the plan in court. The sooner McCollum takes action, the better. If the defense lawyers are right -- and Florida stays on this course -- it could cost the state years, and piles of taxpayer dollars, to straighten the mess out....

The new system won't be ready in time. The new regional counsels, appointed just a few weeks ago by Crist, still haven't hired enough staff, and some still need office space. From the start, it was also clear the new offices would be underfunded. Last year, conflict cases cost the state more than $90 million at the bargain-basement rate paid to private attorneys. The Regional Conflict Counsel program is budgeted at $50 million.

Jeffrey Deen, the Orlando attorney appointed to handle cases in the 13-county area that includes Volusia and Flagler, will have a budget of around $5 million, from which he plans to hire 40 to 45 attorneys and about 20 support staff, Deen told the Florida Bar News.

Allow me to apologize to Mr. Deen for posting below that some of the new Regional Counsels seem inaccessible. He's talking to the Florida Bar News, and will attend a luncheon of the Central Florida Association of Criminal Defense Lawyers on September 26 in Orlando.

The editorial quoted above is interesting, but as is the trend does not mention dependency cases.

An interesting business model

Now this is very close to what I've been thinking about. There is a market for some attorneys to provide consulting, mentoring, and training services for the bulk of the newer lawyers who are likely to be handling juvenile dependency cases.

This article is about criminal juvenile cases, but is worth noting. If nothing else, Gerry deserves congratulations on making an interesting idea get some traction.

Jackson Flyte remains the only accessible Regional Counsel

It seems that I see a news story that mentions Jackson Flyte at least a couple of times a week. On the other hand, I've not read one sentence about any of the other four Regional Counsels.

Mr. Flyte is the only one of the five who has responded to three different email attempts to start a dialogue between this site and the new offices.

That is a shame, as the majority of the hits on this blog are from people doing searches for those people. I wish I had information to give you from these gentlemen, but I do not, except for and about Mr. Flyte.

In case one of them reads this, I'll renew my offer made to you in email to help you get the dependency portion of your office trained and running.

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

In any event, Mr. Flyte is in the news, and it is interesting:

Though he's hired only a handful of attorneys so far — the office is supposed to be operational by Oct. 1, it's more likely it will be Jan. 1 — Flyte said he has a plan to lure private attorneys into jumping on board.
Despite heading up the position, Flyte admits the system is flawed. "It's just not feasible to do these kinds of cases," he said of death penalty cases, in which the state now pays $15,000 upon completion of the case, which can take years. "I was in the same boat myself. The pay is not anywhere near what I was making."
"It's going to be tough," Cary said. "I'm not really optimistic that it'll be pretty for a while."

I posted only the most interesting -- and pessimistic -- portions above. You should read the whole thing.

In any event, a plan for dependency cases is (there really must be a law against it or something) not mentioned in the story.

UPDATE: Mr. Flyte wrote me in regard to this post, and says he was not quoted accurately in the excerpt above. I'll pass on some of his thoughts in a later post. Also, I now think that my title for this post is a little harsh. I see that in a recent Florida Bar News article, four of the five Regional Counsels were interviewed. I'll post about that article above as well.

Here's another story about the crim side

Here's the press release.

Here's the news story.

The Florida Association of Criminal Defense Lawyers wants AG Bill McCollum to sue the state over a new law that revamped the system of providing public defenders to the accused.

"We cannot jeopardize the integrity of Florida's constitution," said FACDL President A. Russell Smith. "While we appreciate the need of the government to address budget concerns, the legal system cannot afford to sacrifice its ability to provide due process to citizens accused of a crime."

No mention of dependency in the press release or news story.

It seems the crim defense guys are going to sue

Here's some interesting news:

The Florida Association of Criminal Defense Lawyers has written to Attorney General Bill McCollum asking him to reverse the appointment of five new "conflict counsel" lawyers, who are meant to create a second public defender system.

In his letter, A. Russell Smith, president of the Florida Association of Criminal Defense Lawyers, takes issue with several aspects of the new law creating the conflict counsels and lowering the fee cap for court-appointed lawyers.

Smith said that the law states that the conflict counsels are another type of public defender. Public defenders are elected every four years, not appointed, Smith said.
In Smith's letter, he asks that McCollum file the petition quickly. "The Act is rapidly precipitating a crisis in the delivery of competent legal services to indigent Floridians who have been accused of crimes. It has become obvious to everyone with the criminal justice system that it simply will not work."

Smith also said, "I hope that you will provide me with a written answer pertaining to this issue quickly, so that our Association may take independent action if your office declines to pursue this important Constitutional issue."

Hm. I tend to think the way to go is to educate the public, make our issue as sympathetic as possible given the subject matter, and stand willing to take up the slack when, as I predict, the new system just doesn't work. The crim defense guys seem ready to take the whole thing to court.

The Dependency Defense Message Board is up!

Thanks to a good friend, to whom I am grateful, the website now has a message board. This weekend I hope to update the site with more names in the attorney directory and the beginning of the downloadable library and fix the links. In the meantime, you can sign up for the message board and have fun with it.

No, you don't have to register with your real name.

Click here!

Preach it, brother

From SW Florida's HeraldTribune.com:

The concept of an Office of Regional Counsel, in the abstract, is not a bad one," Judge Haworth states in an essay to be published by the Sarasota County Bar Association. But -- isn't there always a but in Florida? -- "the problem lies in the fact that, from the outset, ORC will be critically underfunded and understaffed."

And, Haworth states, the state's mandatory fee contract is so "onerous" that few private-sector attorneys will volunteer to take time-consuming cases, fearing that they will essentially "have to work for free."

Haworth and several lawyers with whom I spoke agreed that many Floridians are unlikely to sympathize with the plight of indigent defendants accused of crimes.

Inadequate representation affects victims of crimes, too, by delaying trials and, ultimately, justice.

"But what I'm really concerned about is dependency cases," Haworth said. "If lawyers won't take appointments or can't be available for all the hearings, we're going to be delaying reunifications \[between children placed into foster care and their parents\] or adoptions of foster children."

Lee Johnson of the Sarasota Family YMCA, which is involved in foster care and adoption cases throughout our region, said his agency is concerned as well, "especially in the short-term."

Public Defender Elliott Metcalfe agreed: "The impacts on the criminal system will be bad enough; the effects on family courts will be worse."

I bolded a portion of that because it is worth noting. First, because it seems to be far too easy for policy makers to forget that such delays (especially unnecessary time in foster care) costs a lot of money. It is a fact that the clients we dependency defense attorneys represent are often unsympathetic characters, but it is still true that we are professionals, and officers of the court, and perform a vital service in the progress of these cases. On the other hand, some of our clients truly are the victims of injustice.

As I said recently to a CWLS (DCF attorney) friend, it comes down to this: no matter how much protective investigators, social workers, case manager supervisors, DCF attorneys, etc., might be decent people, it is in the interest of no one to endow an agency, operating with all the power and weight of the State of Florida, the ability to operate with no outside checks and no competent and experienced attorneys to present the other side of the story. Unchecked and enormous power simply isn't healthy, even for those people who intend to use it for good.

CWLS needs competent and experienced dependency defense counsel to keep them honest, if you will, and we need each other to keep us all sharp and on our game. The courts need all of us to give them the confidence that they have all the relevant facts.

I invite you to read the entire article.

A plan for the first day

Is there a plan for the first day that the Regional Counsel offices will be responsible for dependency cases? I don't know. I do know that those offices are supposed to take over on Monday, October 1, 2007. As I write this, that is 18 days away; 11 business days, considering that tomorrow is a Jewish holiday.

On Monday, October 1, 2007, in juvenile courthouses across Florida, parents will report for shelter hearings. In a representative courthouse -- let's say mine in Orange County -- there is likely to be a good number of shelter hearings. DCF's child protective investigators are on the job seven days a week, and child removals don't stop for the weekends. On Monday, therefore, there will be shelter review hearings for parents who had their children removed from them on the previous Friday or Saturday (defense counsel are not appointed on weekends -- will the Regional Counsel attorneys be working on weekends?) and fresh shelters from children taken on Sunday -- and if CWLS is very efficient, possibly some from early Monday morning removals.

So potentially, on the first day that the Regional Counsels are responsible for providing defense attorneys to indigent parents, they will be handling up to four days worth of removals. There may, in fact, be no cases. There might be one, two, five, eight, or ten cases, and most of them will have indigent parents showing up.

In each of the cases, there is likely to be more than one parent. On any given day, cases come in with three or four parents, and sometimes more. For the uninitiated (who are unlikely to be reading this, I imagine), many dependency cases involve one mother but two or more fathers. Yesterday, for instance, I was on "duty" meaning that it was my turn in rotation to take whatever cases might come in, as was another attorney. Every day we have two on duty, because most cases have a minimum of two parents involved. Yesterday we had to round up two extra attorneys who happened to be at the courthouse, for a total of four accepting new clients, because of the number of parents appearing in some of the new shelter hearings.

So on October 1, 2007, throughout the state, there will be cases in which it is alleged that children are exposed to domestic violence. A mother and father will show up. One will be alleged to be a perpetrator, the other a victim, but who also is alleged to fail to protect the children from the violence. Will the Regional Counsels have two attorneys on duty so that both get representation? Of course not, not only because it is improbable, given the budget and resources afforded the new Regional Counsels, that two whole attorneys will be devoted to each county juvenile court each day solely for dependency cases, and also because if the Regional Counsel takes on one of the parents, there is an obvious and immediate conflict of interest in representing the other. After all, we don't really know the facts yet. Nothing is yet properly in evidence, and maybe it is not so simple as deciding one is a perpetrator and one is a victim just by looking at them. Will one of them get an attorney on that day, and the other have to wait weeks until arraignment, all the while questioned and pressured by investigators, before he or she talks to counsel?

Also on that day, somewhere in the state, there will be a case alleging that a baby has serious skull or other fractures, and nobody knows how it happens. The Court is likely to be inclined to permit the removal of the child into foster care or with a relative, and restrict both parents' contact with the baby. Will both parents be given an attorney on October 1, 2007, or will one get an attorney and the other one wait weeks until arraignment, all the while questioned and pressured by investigators and facing a looming criminal case, before he or she talks to counsel?

Also on that day, there will be a mother accused of abandonment, or a filthy house, or a severe drug problem, and there are four kids by four fathers, each of which might appear, and not having done anything wrong to cause this problem, will at least have an opinion about what is best for his child and even be willing to step in to this emergency and take care of his child. The Mother, accused of abandonment, will naturally have counsel appointed. Will those who have done nothing wrong then be the only ones without counsel to make a case for what might be best for the children?

I'll quit with the scenarios there. You get the point. The legislation creating the Regional Counsel offices was not sufficiently thought out with regard to dependency cases. In every county on October 1, 2007, rotation attorneys had better be present and ready to fill the gaps that the judges will know need to be filled.

As far as the October 1st date goes, I'll go on record as saying: I doubt it. January 1, 2008 is more likely, and I've heard from one official who has some knowledge about it in Tallahassee who supports that prediction. Still, on January 1, we will still have the same conflicts I've spoken of here, and we will still need private counsel on these cases, so we'd better be ready.

Do foster kids have to pay for their own care?

Today I got a judicial review report that had something attached I'd not seen before, a "Notice of Fee Assessment and Rights of Foster Child Regarding Government Benefits".

Take a look at an example here.

How about this from the form: "This is to notify you that the department has assessed the child a monthly fee for the cost of care from his or her Social Security or other benefit payment."

Wow.

It seems to say that if a child in foster care gets certain federal benefits, he or she may have to turn around and pay that money to the State of Florida for the privilege of being removed from his or family and relatives. Can this be true?

Predictable

From the Ledger.com:

Defense lawyers willing to take court-appointed first-degree murder cases are harder to find than bigfoot these days. Just ask Circuit Judge J. Michael Hunter, who can't find enough lawyers for two new first-degree murder cases with multiple defendants on his docket. After coming up short in Polk County, he called a judge in Hillsborough County to find out whether he knows of any lawyers willing to come to Polk to take on any of the defendants, but he said has not heard back yet.

At fault, defense lawyers say, is a new law that took effect July 1. The law sets pay so low that many lawyers have refused to sign a contract to take on new court-appointed cases, according to A. Russell Smith, president of the Florida Association of Criminal Defense Lawyers. "It's an issue, and it needs to be resolved quickly," Judge Hunter said.

Ed: I agree, but don't see how it can be resolved quickly. The Regional Counsel system will be given time to succeed or fail, one way or another.

The law (SB 1088) "creates a compensation structure which is designed to encourage a substandard level of representation, and to force lawyers to plead their clients guilty to the charges quickly and without adequate investigation," Smith said. "It does so by setting flat fees which are so low that lawyers lose money if they properly investigate a case....Defense lawyers opposed the bill before it was approved during the last session of the Legislature, warning that many lawyers would quit taking court-appointed cases. Their predictions have come true, at least so far.

Statewide, 68 percent of the lawyers who previously had been on the court-appointed list refused to sign up when the new law took effect, Smith said.

The new law also created a second system of public defenders, called conflict counsel, but their offices will not be up and running and ready to take new cases until at least October. The Office of Conflict Counsel will take on the second defendant in multi-defendant cases, but private lawyers will still need to be appointed in cases with more than two defendants.

And the likely result?

The experience level of lawyers who take court-appointed cases is going down and their caseloads are skyrocketing. It is only a matter of time before we see the courts flooded with ineffective-assistance-of-counsel claims.

More information from the 2d District Regional Counsel

The new law creating the Regional Counsel offices can be read to say that attorneys doing work for the Regional Counsels handling dependency cases can also maintain a separate practice of law so long as none of that practice involves handling dependency cases to which one is appointed and paid through JAC. That's an important question, since nearly every parent in dependency cases is indigent, and their lawyers appointed. I asked 2d District Regional Counsel Jack Flyte whether he could use private attorneys under contract (in contrast to actual "employees")who could also lawfully handle other state-compensated dependency cases. Mr. Flyte writes:

27.511 states, "Assistant regional counsel shall give priority and preference to their duties as assistant regional counsel and may not otherwise engage in the practice of criminal law or in civil proceedings for which the state compensates attorneys for representation."

The goal of this language was to prevent a part-time assistant regional counsel from also accepting cases from the court-appointed counsel registry. Court appointed cases are the State compensated representation the statute is addressing. The State is already compensating an assistant regional counsel for this service and the purpose of the registry is not to be used as further compensation for assistant regional counsel. This language is not a bar to privately retained, non-state compensated, cases so long as the assistant regional counsel gives priority and preference to their duties as an ARC. You can be a private attorney and accept registry appointments and be paid through JAC or you can be a assistant regional counsel working part-time and accept privately retained cases so long as your duties as assistant regional counsel are given priority. It is up to the Regional Counsel's to decide whether they want full or part-time employees. Given the large area to be covered in the Second District I will be offering part-time employment especially in counties with 3 or fewer Judges. The more densely populated areas will be better served by full-time employees.

"Contract attorneys" can be obtained by Regional Counsel for any purpose whether it be a dependency case or a death penalty appeal. Our budget category for these services however is very small. The Legislature clearly intended to create an employee model and not a contract model. Most of the budget is for employee salary and benefits. Fortunately the statute does allow assistant regional counsel to engage in the private practice of, non state compensated, law so long as priority is given to their public duties. As an employee, even part-time, you will also be eligible for all state benefits. This is not available to a contract attorney.

Jack Flyte
Regional Counsel, Second District

Ed: Does that clear it up?

The 2007 Florida Dependency Summit

If any readers will be attending and want to pass on comments about the summit, drop me a line: cam @ dependency defense . com (no spaces)