Wednesday, October 31, 2007
Tuesday, October 30, 2007
Update, sort of, on FACDL lawsuit
The FACDL quo warranto action is now docketed on the website for the Leon County Clerk of Court, but there is very little information. No hearings or other actions are currently docketed. The case is assigned to the Honorable P. Kevin Davey.
37 2007 CA 002898 FLORIDA ASSOCIATION OF CRIMINAL DEFENSE LAWYERS, I vs CHARLIE CRIST AS GOVERNOR
| Plaintiffs | Defendants |
| FLORIDA ASSOCIATION OF CRIMINAL DEFENSE LAWYERS, I | CHARLIE CRIST AS GOVERNOR KEN PRUITT PRESIDENT OF THE FLORIDA SENATE KURT BROWNING SECRETARY OF STATE OF FLORIDA LEWIS, JEFFREY FLYTE, JACKSON GEORGE, JOSEPH MASSA, PHILIP DEAN, JEFFREY |
| Plaintiff Attorney(s) | Defendant Attorney(s) |
| DOSS, D TODD RUDENSTINE, SONYA | |
| Case Comments | Case Attributes |
| WRIT QUO WARRANTO TRANSFER FROM SUPREME COURT SC07-1744 | Number: 37 2007 CA 002898 Action: OTHER Status: OPEN Filed : 10/19/2007 Citation: |
Monday, October 29, 2007
Conversation with Bill Grant
In reference to my post below regarding the firm to take conflict/dependency cases in Citrus, Sumter and Hernando Counties, I just had a very good conversation with attorney Bill Grant.
I'm glad we got to talk. Communication is a good thing.
In some respects I'm reassured about their ability to provide good representation to parents. To the extent that I still have questions, they are questions of quantity and quality.
I'll flesh this post out when I have time later.
I'm glad we got to talk. Communication is a good thing.
In some respects I'm reassured about their ability to provide good representation to parents. To the extent that I still have questions, they are questions of quantity and quality.
I'll flesh this post out when I have time later.
Friday, October 26, 2007
Buying and selling children
Kindly read this post to the end, so I can wrap it up with a conclusion.
Since this blog's first post on June 9th, 2007, some four and half months ago, I've purposefully refrained from including anecdotal accounts from my own cases and others of which I know. The fact is, however, that there are things the public would truly have a difficult time wrapping its collective mind around if it knew about them, and dependency defense lawyers know some things that you (in true "you can't handle the truth" fashion) probably don't want to know about.
I've refrained from editorial-style posts for the most part and have endeavored to be a one-stop source of news about what will happen to dependency defense in Florida under the Regional Counsel system. In light of where it seems dependency defense in Florida is going, however, I'm going to indulge myself here and give you some uncomfortable facts and opinions.
To get to the point, money is the deciding factor in whether or not parents' rights to their children are terminated far too often. To be intentionally provocative, I can tell you that children in "the system" are sometimes simply taken from a poor and unsophisticated parent and given to someone friendly to a case manager for (and I have personally witnessed each of the following) 1) reasons of personal friendship between someone at DCF and someone who covets a certain child(ren); 2) because there is no legal reason to terminate parental rights, but the supposedly voluntary and altruistic custodians stand to get more public money if parental rights are terminated; 3) because a supervising attorney for DCF herself just so happens to want a particular baby and instructs her subordinate attorneys to come up with a theory under which she could not only shelter the child, but gain custody of the baby for herself, or 4) because a mountain of lies becomes too enormous for even good caseworkers to dig out from under.
Yes, those are all vague descriptions of cases I've handled myself. Let's get more specific:
In case number 1, four children who were only sheltered in the first place because of an unrelated report about the day care they were in, went to new parents who should not have been eligible for adoption in the first place, as there was a suitable placement with a grandmother. The problem was that grandfather had some problems in his background. The grandmother, a Hispanic Roman Catholic, made the heartbreaking decision to divorce her husband of decades in order to keep her grandchildren, but that was not good enough. After all, the people who wanted to adopt, despite their own history of domestic violence and their history of trying to hide that domestic violence, that should have disqualified them, were friendly with a high-ranking official at DCF, who herself may have been linked to a later tragic event. The preferred couple friendly to DCF employees adopted the kids, and later one of their biological children sexually molested the adopted children and the couple decided to return the damaged goods to DCF.
I am ethically forbidden to tell the details of that story and to inform those four children of their right to sue. It is unlikely that anyone else will connect the dots and uphold their rights.
In case number 2, which I am still involved with, an Hispanic woman who is deaf and neither writes English nor signs standard American sign language is accused of neglecting a child who needs dental work. At nearly half of the hearings, a sign language interpreter has not been available and she has absolutely no idea what is going on and cannot receive meaningful counsel from her attorney. The child's needs are legitimate, so we consent to a finding of dependency and cooperate with a case plan, except that DCF doesn't ever lift a finger to help the mother, poor, deaf, and possibly with mental health issues, from getting evaluations done with the help of an interpreter and with an appropriate psychologist that might actually yield useful information for both the mother and the court. After several meetings in which an interpreter -- who is not supposed to do this as they are only charged with interpreting inside the courtroom -- helped me to talk with my client (imagine if you will not only being deaf but also not signing in ASL, or English if you will, and not writing in the English language, and having to deal with attorneys and caseworkers and judges who only deal in spoken English), I finally arrived at the conclusion that the mother would not object to the case closing to a permanent guardianship, as she believes her children might benefit from that, so long as she can still visit them and be their mother. She is rock solid that she does not want to give up her parental rights, however.
But no. It turns out that the custodian became a foster parent, which means that she gets money for having the kids. As a non-relative, if the case closed out to permanent guardianship, she would no longer get taxpayer money. If they terminated parental rights, however, she could get an adoptions subsidy, so DCF tells me they are filing to terminate parental rights. So that the custodian can get paid, and for no other reason. This case is still pending, and I'll go to the wall on it.
Yes, they buy and sell children.
In case number three, an injustice of horrifying proportions was barely averted. The supervising attorney for DCF in Volusia County heard that a member of her church had a baby, and that some of the members of her church thought that the mother couldn't properly take care of the baby. It just so happened that Ms. DCF Supervising Attorney, who was in the leadership of that church, wanted the baby for herself, so she tasked her subordinate attorneys to come up with a legal theory to shelter the baby and place the child in the care of Ms. DCF Supervising Attorney. They did so. Someone wiser than usual noted that this was a problem and had the case moved to a neighboring county. My county. I was appointed as the mother's attorney, and although I applauded DCF's decision to move the case, was appalled at how DCF's lawyer robotically repeated key allegations that had already been disproven, again and again. I have the transcripts, the chron notes, and the audio. I had to become my own social worker, and drive three hours round trip to create my own homestudy, after DCF dragged its feet on doing one.
The result was good. I got the baby reunified with her mother and the case closed. In the first time in my career, I urged the parents to sue. They declined, too shell-shocked to want anything to do with a court or DCF ever again.
In case number 4, a poor teenage Black mother goes to the police because she is afraid that she can't take care of her infant son. The police officer who responded, noting in her police report the sympathetic aspects of the mother's love for her child, takes her to a place that is supposed to help. A volunteer at that place, an adoptee herself, decides she wants the child for her own, and tricks the teenage mother into signing documents. A DCF caseworker is assigned and is later charged with and convicted of falsifying records in this case and actually serves jail time. Meanwhile, the "volunteer" who wanted the child has provided false history to a half-dozen doctors, and has the child diagnosed with pretty much everything that a child could possibly be suffering from. Suddenly the child is given a new name. Suddenly a therapist who is friendly to the foster mother and will only appear by phone before a now disgraced judge declares that the foster mother is the only person on Planet Earth who can safely be in the presence of the child, and the now disgraced judge buys it, as he seems to think therapists to be magic beings.
My client, the poor teenage black mother, still has her problems, but is denied any possibility of any contact at all with her child. She is denied the ability to call her child by name, as the foster mother has renamed him. She is denied the ability to give her child Christmas and birthday presents. She is denied any visitation of any kind under any circumstances, because a present judge defers to the ruling of a former -- disgraced -- judge.
But the foster mother has friends in the system. And DCF is institutionally incapable of admitting past mistakes (though in fairness I've had some back-channel sympathy and encouragement from some in the system over this still pending case) or of correcting a flawed record once it is made.
So there are my four true life examples. They are all personal to my own practice. Do you think this doesn't matter? Do you think that part-time attorneys stretched over several counties can handle this for very, very little money?
What if you are falsely accused and happen to be poor? I can't put this any more bluntly than this: people in the government sometimes trade children to their friends. They have the power to do so. What stands between you and that horror?
Since this blog's first post on June 9th, 2007, some four and half months ago, I've purposefully refrained from including anecdotal accounts from my own cases and others of which I know. The fact is, however, that there are things the public would truly have a difficult time wrapping its collective mind around if it knew about them, and dependency defense lawyers know some things that you (in true "you can't handle the truth" fashion) probably don't want to know about.
I've refrained from editorial-style posts for the most part and have endeavored to be a one-stop source of news about what will happen to dependency defense in Florida under the Regional Counsel system. In light of where it seems dependency defense in Florida is going, however, I'm going to indulge myself here and give you some uncomfortable facts and opinions.
To get to the point, money is the deciding factor in whether or not parents' rights to their children are terminated far too often. To be intentionally provocative, I can tell you that children in "the system" are sometimes simply taken from a poor and unsophisticated parent and given to someone friendly to a case manager for (and I have personally witnessed each of the following) 1) reasons of personal friendship between someone at DCF and someone who covets a certain child(ren); 2) because there is no legal reason to terminate parental rights, but the supposedly voluntary and altruistic custodians stand to get more public money if parental rights are terminated; 3) because a supervising attorney for DCF herself just so happens to want a particular baby and instructs her subordinate attorneys to come up with a theory under which she could not only shelter the child, but gain custody of the baby for herself, or 4) because a mountain of lies becomes too enormous for even good caseworkers to dig out from under.
Yes, those are all vague descriptions of cases I've handled myself. Let's get more specific:
In case number 1, four children who were only sheltered in the first place because of an unrelated report about the day care they were in, went to new parents who should not have been eligible for adoption in the first place, as there was a suitable placement with a grandmother. The problem was that grandfather had some problems in his background. The grandmother, a Hispanic Roman Catholic, made the heartbreaking decision to divorce her husband of decades in order to keep her grandchildren, but that was not good enough. After all, the people who wanted to adopt, despite their own history of domestic violence and their history of trying to hide that domestic violence, that should have disqualified them, were friendly with a high-ranking official at DCF, who herself may have been linked to a later tragic event. The preferred couple friendly to DCF employees adopted the kids, and later one of their biological children sexually molested the adopted children and the couple decided to return the damaged goods to DCF.
I am ethically forbidden to tell the details of that story and to inform those four children of their right to sue. It is unlikely that anyone else will connect the dots and uphold their rights.
In case number 2, which I am still involved with, an Hispanic woman who is deaf and neither writes English nor signs standard American sign language is accused of neglecting a child who needs dental work. At nearly half of the hearings, a sign language interpreter has not been available and she has absolutely no idea what is going on and cannot receive meaningful counsel from her attorney. The child's needs are legitimate, so we consent to a finding of dependency and cooperate with a case plan, except that DCF doesn't ever lift a finger to help the mother, poor, deaf, and possibly with mental health issues, from getting evaluations done with the help of an interpreter and with an appropriate psychologist that might actually yield useful information for both the mother and the court. After several meetings in which an interpreter -- who is not supposed to do this as they are only charged with interpreting inside the courtroom -- helped me to talk with my client (imagine if you will not only being deaf but also not signing in ASL, or English if you will, and not writing in the English language, and having to deal with attorneys and caseworkers and judges who only deal in spoken English), I finally arrived at the conclusion that the mother would not object to the case closing to a permanent guardianship, as she believes her children might benefit from that, so long as she can still visit them and be their mother. She is rock solid that she does not want to give up her parental rights, however.
But no. It turns out that the custodian became a foster parent, which means that she gets money for having the kids. As a non-relative, if the case closed out to permanent guardianship, she would no longer get taxpayer money. If they terminated parental rights, however, she could get an adoptions subsidy, so DCF tells me they are filing to terminate parental rights. So that the custodian can get paid, and for no other reason. This case is still pending, and I'll go to the wall on it.
Yes, they buy and sell children.
In case number three, an injustice of horrifying proportions was barely averted. The supervising attorney for DCF in Volusia County heard that a member of her church had a baby, and that some of the members of her church thought that the mother couldn't properly take care of the baby. It just so happened that Ms. DCF Supervising Attorney, who was in the leadership of that church, wanted the baby for herself, so she tasked her subordinate attorneys to come up with a legal theory to shelter the baby and place the child in the care of Ms. DCF Supervising Attorney. They did so. Someone wiser than usual noted that this was a problem and had the case moved to a neighboring county. My county. I was appointed as the mother's attorney, and although I applauded DCF's decision to move the case, was appalled at how DCF's lawyer robotically repeated key allegations that had already been disproven, again and again. I have the transcripts, the chron notes, and the audio. I had to become my own social worker, and drive three hours round trip to create my own homestudy, after DCF dragged its feet on doing one.
The result was good. I got the baby reunified with her mother and the case closed. In the first time in my career, I urged the parents to sue. They declined, too shell-shocked to want anything to do with a court or DCF ever again.
In case number 4, a poor teenage Black mother goes to the police because she is afraid that she can't take care of her infant son. The police officer who responded, noting in her police report the sympathetic aspects of the mother's love for her child, takes her to a place that is supposed to help. A volunteer at that place, an adoptee herself, decides she wants the child for her own, and tricks the teenage mother into signing documents. A DCF caseworker is assigned and is later charged with and convicted of falsifying records in this case and actually serves jail time. Meanwhile, the "volunteer" who wanted the child has provided false history to a half-dozen doctors, and has the child diagnosed with pretty much everything that a child could possibly be suffering from. Suddenly the child is given a new name. Suddenly a therapist who is friendly to the foster mother and will only appear by phone before a now disgraced judge declares that the foster mother is the only person on Planet Earth who can safely be in the presence of the child, and the now disgraced judge buys it, as he seems to think therapists to be magic beings.
My client, the poor teenage black mother, still has her problems, but is denied any possibility of any contact at all with her child. She is denied the ability to call her child by name, as the foster mother has renamed him. She is denied the ability to give her child Christmas and birthday presents. She is denied any visitation of any kind under any circumstances, because a present judge defers to the ruling of a former -- disgraced -- judge.
But the foster mother has friends in the system. And DCF is institutionally incapable of admitting past mistakes (though in fairness I've had some back-channel sympathy and encouragement from some in the system over this still pending case) or of correcting a flawed record once it is made.
So there are my four true life examples. They are all personal to my own practice. Do you think this doesn't matter? Do you think that part-time attorneys stretched over several counties can handle this for very, very little money?
What if you are falsely accused and happen to be poor? I can't put this any more bluntly than this: people in the government sometimes trade children to their friends. They have the power to do so. What stands between you and that horror?
Thursday, October 25, 2007
A profile of the new defenders
In the post below, I linked to the article that confirmed that Grant & Samargya, LLC will take over all criminal conflict and all dependency cases in the counties of Citrus, Sumter, and Hernando starting November 1, 2007 (one week away from the time of this posting).
Congratulations to the firm for getting the contract, and I wish them well.
Here is their website. It is not very informative (in case you didn't click on the link, it simply says "coming soon"), so out of curiosity I did a whois search and found that the domain name was registered November 13, 2004. I urge these gentlemen to update their site as soon as possible, as a combined population of 373,320 people will be looking to them for answers about how the indigent will receive legal services.
Mr. Grant became a member of the Florida Bar in 2002. He was mentioned on an Orlando radio host's blog at this link (you have to scroll down a bit). Also at this blog post.
Milan Samargya became a member of the Florida Bar in 1994. Previously an Orlando attorney, it seems from simple google searches, and mentioned in this article. (Why this Florida story is in the Pocono Press, I can't imagine).
James Dozier (the lawyer to be hired by the firm to help with the conflict and dependency cases) became a member of the Florida Bar 17 months ago. I'm not sure what this search might mean.
I've sent email to Mr. Grant. If any of these three lawyers get in touch with me, I'll reproduce here anything they want me to. They've got a big task ahead.
Congratulations to the firm for getting the contract, and I wish them well.
Here is their website. It is not very informative (in case you didn't click on the link, it simply says "coming soon"), so out of curiosity I did a whois search and found that the domain name was registered November 13, 2004. I urge these gentlemen to update their site as soon as possible, as a combined population of 373,320 people will be looking to them for answers about how the indigent will receive legal services.
Mr. Grant became a member of the Florida Bar in 2002. He was mentioned on an Orlando radio host's blog at this link (you have to scroll down a bit). Also at this blog post.
Milan Samargya became a member of the Florida Bar in 1994. Previously an Orlando attorney, it seems from simple google searches, and mentioned in this article. (Why this Florida story is in the Pocono Press, I can't imagine).
James Dozier (the lawyer to be hired by the firm to help with the conflict and dependency cases) became a member of the Florida Bar 17 months ago. I'm not sure what this search might mean.
I've sent email to Mr. Grant. If any of these three lawyers get in touch with me, I'll reproduce here anything they want me to. They've got a big task ahead.
So the rumor was true
I'd heard around the courthouse that an Inverness firm consisting of a total of three attorneys had been given the responsibility to cover ALL of the criminal conflict cases and dependency cases in three (count 'em) counties.
The article excerpted below seems to confirm that.
What the article does not mention is the amount of money that the firm will get for this enormous multi-county burden. Since everything else I'd heard is confirmed by this article, I'm more comfortable repeating the scuttlebutt (if it is wrong and Mr. Deen wishes to correct this blog in that respect, I'm still happy to hear from him): sources say that the amount of the contract is a total of $75,000, which might help to explain this line from the article:
Here's that excerpt I promised, then some more comments:
I am not sure what Mr. Grant meant by streamlining due process. In fact I am sure that I have no idea at all what that means. I'll email him and ask. Perhaps he was misquoted.
The article excerpted below seems to confirm that.
What the article does not mention is the amount of money that the firm will get for this enormous multi-county burden. Since everything else I'd heard is confirmed by this article, I'm more comfortable repeating the scuttlebutt (if it is wrong and Mr. Deen wishes to correct this blog in that respect, I'm still happy to hear from him): sources say that the amount of the contract is a total of $75,000, which might help to explain this line from the article:
The two lawyers will continue their current private practice, representing criminal and civil clients.This continues the trend noted in an earlier post in which at least one of the Regional Counsels seems to be building his organization around private attorneys who accept these duties as being a part-time commitment. In fairness, the legislation that established the Regional/Conflict Counsel offices require that such attorneys give "first priority" to criminal conflict and dependency cases, but those are just words when compared to the reality that these jobs cannot possibly be part-time in any sense, and that the compensation is unlikely to keep any lawyers or firms doing it for very long.
Here's that excerpt I promised, then some more comments:
An Inverness law firm has been selected to represent indigent criminal defendants in cases where the public defender has a conflict of interest and indigent parents in dependency proceedings.
The firm of Grant & Samargya LLC is part of a regional criminal conflict and civil counsel office that will represent eligible clients in Citrus, Sumter and Hernando counties beginning Nov. 1....
Grant and Samargya have hired a third attorney, James R. Dozier, to assist them with the increasing caseload that will likely result from their new responsibilities...Grant said he doubts the new agency will save on costs, but he believes it will provide central supervision for the conflict process by assigning lawyers from state run offices to handle the cases.
"I don't think it's going to save them money as much as it will streamline due process and make it subject to a central boss," he said...
Samargya said the law firm also will be busy with cases involving indigent parents in dependency and loss of parental rights cases. The firm will handle all dependency cases involving indigent parents. Those cases were formerly assigned to private attorneys.
I am not sure what Mr. Grant meant by streamlining due process. In fact I am sure that I have no idea at all what that means. I'll email him and ask. Perhaps he was misquoted.
Falsifying public records wasn't a crime before?
Read the whole thing at this link.
New law targets false reporting of child welfare workers
DAYTONA BEACH -- An adult investigator for the state Department of Children & Families details in a report that he talked to two suspected victims of abuse.
The only problem is the victims said they never spoke to him.
In another local case, a state investigator writes in a report that he spoke to a Port Orange police officer about a child being abused.
But, turns out, the officer said he was never contacted and wasn't even on duty at the time the DCF investigator said the conversation took place.
Those are two of several cases in recent years where state officials found child welfare workers falsified records.
But rarely in such cases locally or statewide do workers face prosecution, according to a recent report by the DCF Inspector General's Office.
State officials hope that will change after legislators earlier this year made it a felony not only when a worker alters an existing document, but creates a false one -- which the old law didn't address.
Ed: I can tell you that I've had more cases than you would believe me about where absolutely completely made up stuff becomes the heart of the case, because it is very difficult to take revolving case managers off the official narrative that is in their inherited notes. In some cases I've been able to turn the light bulb on above the judge's head and achieve an understanding that the foundation of a case has been a sham, on other cases I've not been able to. I know this article, and this law, seems to focus on false reports of child visits that never happened, but that is not the only, and certainly not the most damaging, category of false reporting.
Monday, October 22, 2007
Cuban custody case to resume shortly
As noted in various previous posts, DCF is going to the wall with this case.
A trial to determine the fate of a 5-year-old Cuban girl will resume in one week -- despite urging from the state Department of Children & Families that the proceedings stay on hold pending a ruling from an appeals court....The second phase of the trial, to decide whether the girl would be psychologically harmed if removed from the home of foster parents Joe and Maria Cubas, was halted last week after DCF attorneys appealed, hoping to reverse Cohen's previous ruling that found the father, Rafael Izquierdo, a fit parent.
DCF argued last week that Florida statutes require the judge to halt the trial pending a ruling from the Third District Court of Appeal.
Cohen initially agreed, noting lawyers for Izquierdo had no objection.
On Monday, however, she had a different outlook -- and scolded DCF for using the appellate process for strategic aims.
''This in the best interest of this child,'' said Cohen, who said she believed the state had misread the Florida statute. She said that while the state's appeal would prompt an automatic stay in most civil proceedings, the rule does not apply to cases in juvenile court.
''I understand the strategy and why you want this whole thing stayed,'' Cohen said. ``I wasn't born yesterday. I am moving forward with this.''
Harsh
Via the Justice Building Blog down south, we hear that the 3rd Regional Counsel is getting a flat refusal from the locals to provide office space.
“Dear Mr. George:
In response to your inquiry about funding for facilities, security, and operating expenses for the Regional Counsel Office in Miami, the FY 2007-2008 Adopted Budget does not include funding for a facility and/or operating expenses for such an office.
The letter references FACDL v. Florida Governor Charlie Crist et.al., SC07-01744 and concludes rather rudely:
“While the lawsuit is pending, we do not intend to consider funding for facilities and other expenses related to the Regional Conflict Counsel’s Office in Miami”
2d District Regional Counsel answers the "3 questions"
Thank you to Mr. Jackson Flyte, 2d District Regional Counsel, for responding to 3 questions sent to the Regional Counsels by email. Since my purpose is to help them explain to my readers how their offices will operate in their own words, I post his response without editorial comment, except for my thanks for responding.
Question 1: In your meetings with various officials to help you set up your offices and prepare to operate, have you met specifically with the judges assigned to hear juvenile dependency cases? If not, when do you intend to do so?
Flyte's response: I've met my dependency Judges and all the criminal ones as well.
Question 2: Florida Statutes sections 39.402(8)(c)(2 & 3) state the following:
Flyte's response: This is a good question. My office will cover shelters ( even thought shelter reviews) and we will accept one parent only, unless they waive conflict at the shelter hearing. The other parent needs private counsel appointed and the private bar registry attorneys should organize and also have a representative at the shelter hearing. The only other solution is the unrepresented parent's shelter hearing would have to be continued for less than 72 hours to hold a shelter review hearing at which time private registry counsel will have been appointed by the court and be present to represent the parent.
Question 3: Please consider the following two brief hypotheticals. In the first, a child is sheltered for exposure to domestic violence between mother and father. Both parents appear at the shelter hearing and either deny everything or else each claim that the other is the aggressor. In the second hypothetical situation, a child is sheltered with multiple fractures. Both parents, who may or may not live together, appear and each declares that they have no idea how the fractures were caused. DCF may or may not suspect one of the parents, but is not in a position to prove anything yet.
Having considered those hypothetical but typical situations, how will your office determine whether or not there is a conflict that requires appointment of private counsel? Will you interview both parents and then select one to represent, having also received information from the other? Will you be willing to declare that a conflict exists on the face of the circumstances, or do you propose another method of certifying that a conflict exists?
Flyte's response: Hypotheticals. They are clear conflict situations my office will declare that a conflict exists on the face of the circumstances at the earliest possible hearing.
Question 1: In your meetings with various officials to help you set up your offices and prepare to operate, have you met specifically with the judges assigned to hear juvenile dependency cases? If not, when do you intend to do so?
Flyte's response: I've met my dependency Judges and all the criminal ones as well.
Question 2: Florida Statutes sections 39.402(8)(c)(2 & 3) state the following:
(c) At the shelter hearing, the court shall:
2. Inform the parents or legal custodians 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 the procedures set forth in s. 39.013; and
3. Give the parents or legal custodians an opportunity to be heard and to present evidence.
Given your requirements for certifying a conflict before a second parent is appointed an attorney from among private counsel, and given the statutory requirement that eligible parents who appear shall have counsel appointed at the shelter hearing (or any other hearing or proceeding if it is the parent's first appearance) , what is your plan to comply with the law in this regard when more than one parent is present at the shelter hearing?
Flyte's response: This is a good question. My office will cover shelters ( even thought shelter reviews) and we will accept one parent only, unless they waive conflict at the shelter hearing. The other parent needs private counsel appointed and the private bar registry attorneys should organize and also have a representative at the shelter hearing. The only other solution is the unrepresented parent's shelter hearing would have to be continued for less than 72 hours to hold a shelter review hearing at which time private registry counsel will have been appointed by the court and be present to represent the parent.
Question 3: Please consider the following two brief hypotheticals. In the first, a child is sheltered for exposure to domestic violence between mother and father. Both parents appear at the shelter hearing and either deny everything or else each claim that the other is the aggressor. In the second hypothetical situation, a child is sheltered with multiple fractures. Both parents, who may or may not live together, appear and each declares that they have no idea how the fractures were caused. DCF may or may not suspect one of the parents, but is not in a position to prove anything yet.
Having considered those hypothetical but typical situations, how will your office determine whether or not there is a conflict that requires appointment of private counsel? Will you interview both parents and then select one to represent, having also received information from the other? Will you be willing to declare that a conflict exists on the face of the circumstances, or do you propose another method of certifying that a conflict exists?
Flyte's response: Hypotheticals. They are clear conflict situations my office will declare that a conflict exists on the face of the circumstances at the earliest possible hearing.
Sunday, October 21, 2007
Supreme Court transfers FACDL case to 2d Circuit
This was entered in the docket in the quo warranto writ filed by FACDL. Background and source documents can be found at this link.
Here's the latest entry on the docket (dated October 18, 2007):
Thus, the case's status as far as the Supreme Court hearing it at this point is CLOSED. That's all I know. Stay tuned.
Here's the latest entry on the docket (dated October 18, 2007):
The petition for writ of quo warranto is hereby transferred to the Circuit Court of the Second Judicial Circuit in and for Leon County, Florida. See Harvard v. Singletary, 733 So. 2d 1020 (Fla. 1999); Vance v. Wellman, 222 So. 2d 449 (Fla. 2d DCA 1969). The transfer of this case should not be construed as an adjudication or comment on the merits of the petition, nor as a determination that the transferee court has jurisdiction or that the petition has been properly denominated as a petition for writ of quo warranto. The transferee court should not interpret the transfer of this case as an indication that it must or should reach the merits of the petition. The transferee court shall treat the petition as if it had been originally filed there on the date it was filed in this Court. Any determination concerning whether a filing fee shall be applicable to this case shall be made by the transferee court. The Motion for Oral Argument is hereby denied. Any future pleadings filed regarding this case should be filed in the above mentioned circuit court at 301 South Monroe Street, Tallahassee, Florida 32301.
Thus, the case's status as far as the Supreme Court hearing it at this point is CLOSED. That's all I know. Stay tuned.
Non-Standard Attorney Agreement
Something I'd not noticed before has appeared on the JAC website.
This "Non-Standard Attorney Agreement" is for "single court appointment for attorney services". It is for use when a judge appoints an attorney who is not listed on a registry to represent an indigent person. The addition of this contract to the JAC site suggests to me that some are looking forward and recognizing two realities: (1) qualified attorneys have fled the registries, and (2) the Regional Counsel Offices will not be able to handle all that they are currently expected to handle.
That's interesting.
This "Non-Standard Attorney Agreement" is for "single court appointment for attorney services". It is for use when a judge appoints an attorney who is not listed on a registry to represent an indigent person. The addition of this contract to the JAC site suggests to me that some are looking forward and recognizing two realities: (1) qualified attorneys have fled the registries, and (2) the Regional Counsel Offices will not be able to handle all that they are currently expected to handle.
That's interesting.
Thursday, October 18, 2007
Consider my jaw dropped
I've been sitting on this for days. Via an email sent to my tipster on October 12, we get a glimpse of the future, and an answer of sorts to the questions I've been trying to get answered about how at least one of the Regional Counsels will handle dependency defense.
The reason I've been sitting on it is because it is so completely unbelievable to me. I've no desire to pass on ridiculous and fantastic rumors that are not true, after all, but in the past several days I've come to the conclusion that the people who are the sources of this have no reason to make it up. It bears indicia of reliability, if you will.
It doesn't help matters, I might add, that none of the Regional Counsels have responded to my critical 3 questions sent to each by email (at least to the extent that I could find possible email addresses) and that Jackson Flyte is the only Regional Counsel willing to respond to any email at all from your friendly blog author. By that I mean that when I can't get information straight from the horse's mouth, I have to eventually rely on the information I can get through others.
In this case this information comes from one of the Regional Counsels, to a judge, to a county official, then to my tipster. So here it is:
In the county from which I get my information, the Regional Counsel will assign a total of four attorneys to cover dependency cases. Before I go on I should re-direct you to my Three Essential Questions post. Please read it, know that none of the Florida Regional / Conflict Counsels have responded to them, then come back here.
Welcome back. If you didn't hit the link and instead just kept reading, trust me, we know.
As I was saying, the county in question, which has an above-average volume of dependency cases compared to most Florida counties, will have four attorneys assigned to cover all of the cases. One will be a father's attorney before one of the judges, the other the mother's attorney, and the same thing before the other juvenile dependency judge. It does not appear that any will be assigned specifically to cover the magistrate's docket.
The built-in flaw in this plan created by the inherent conflict between mothers and fathers in most of these cases aside, as outlined in my Three Questions post, and the fact that the attorneys will have to be in two places at once quite often because of the magistrate's docket also aside, I have to tell you the following:
These attorneys will be paid $24,000 a year.
As I noted above, I sat on this for quite a while because it is simply so hard to believe. The angle is this, I believe, is this, from the point of view of the Regional Counsel: the $24,000 figure is quite reasonable, because the work is only part time, and with this part time work the attorney will get to earn this money, plus state benefits, but still be able to operate his or her private law practice (in any field except for court-appointed counsel for parents in dependency cases).
Here's the problem. These will not be part time jobs. They can't possibly be. I practice in the county in question, and I am one of, let's just say it is more than four, attorneys who literally do nothing but dependency defense in this county. I am typically in court every single business day, and typically from the start of the day's docket until the end of it. Getting lunch is a challenge at least a couple of days a week. Handling the dependency cases would be next to impossible if the bulk of my practice were in another courthouse. It is more than a full time endeavor, because outside of the time I spend in course I still have to write letters to clients, answer phone calls and emails, visit clients in jail, interview witnesses, negotiate with DCF attorneys, attend permanency staffings and case plan conferences, research law and draft motions, set up appointments for and conduct discovery, and so on.
Two of the four attorneys will have to, at a minimum, be available every single day for shelter hearings, and somehow have to make an on-the-spot decision about whether or not there is a conflict between the mother and the father without actually talking to either of them, which would of course cause the attorneys to have to withdraw from representation of both of them should otherwise confidential attorney-client discussions lead to the conclusion that there is (and there will be) a conflict.
The over-under on how many days it will take for each of the four attorneys who sign on for a part time job for 24k and discover that it is in fact a daunting and complex job requiring much more than 40 hours a week honest work given the caseload is three.
Regional Counsels, if my information is simply wrong; if my very reliable sources are all wet, then please let me know. Whatever information you'd like the readers of this blog to have, I'll pass on. Contact information is easily found at the Dependency Defense website.
On another note, I can tell you that some of the leadership among DCF lawyers locally is also worried about this whole thing. They do not want to see their cases bogged down and not move toward adjudication and permanency because of the lack of defense lawyer availability. I agree. Delay and lack of sufficient time to know the cases well is not good for any of the parties involved.
The reason I've been sitting on it is because it is so completely unbelievable to me. I've no desire to pass on ridiculous and fantastic rumors that are not true, after all, but in the past several days I've come to the conclusion that the people who are the sources of this have no reason to make it up. It bears indicia of reliability, if you will.
It doesn't help matters, I might add, that none of the Regional Counsels have responded to my critical 3 questions sent to each by email (at least to the extent that I could find possible email addresses) and that Jackson Flyte is the only Regional Counsel willing to respond to any email at all from your friendly blog author. By that I mean that when I can't get information straight from the horse's mouth, I have to eventually rely on the information I can get through others.
In this case this information comes from one of the Regional Counsels, to a judge, to a county official, then to my tipster. So here it is:
In the county from which I get my information, the Regional Counsel will assign a total of four attorneys to cover dependency cases. Before I go on I should re-direct you to my Three Essential Questions post. Please read it, know that none of the Florida Regional / Conflict Counsels have responded to them, then come back here.
Welcome back. If you didn't hit the link and instead just kept reading, trust me, we know.
As I was saying, the county in question, which has an above-average volume of dependency cases compared to most Florida counties, will have four attorneys assigned to cover all of the cases. One will be a father's attorney before one of the judges, the other the mother's attorney, and the same thing before the other juvenile dependency judge. It does not appear that any will be assigned specifically to cover the magistrate's docket.
The built-in flaw in this plan created by the inherent conflict between mothers and fathers in most of these cases aside, as outlined in my Three Questions post, and the fact that the attorneys will have to be in two places at once quite often because of the magistrate's docket also aside, I have to tell you the following:
These attorneys will be paid $24,000 a year.
As I noted above, I sat on this for quite a while because it is simply so hard to believe. The angle is this, I believe, is this, from the point of view of the Regional Counsel: the $24,000 figure is quite reasonable, because the work is only part time, and with this part time work the attorney will get to earn this money, plus state benefits, but still be able to operate his or her private law practice (in any field except for court-appointed counsel for parents in dependency cases).
Here's the problem. These will not be part time jobs. They can't possibly be. I practice in the county in question, and I am one of, let's just say it is more than four, attorneys who literally do nothing but dependency defense in this county. I am typically in court every single business day, and typically from the start of the day's docket until the end of it. Getting lunch is a challenge at least a couple of days a week. Handling the dependency cases would be next to impossible if the bulk of my practice were in another courthouse. It is more than a full time endeavor, because outside of the time I spend in course I still have to write letters to clients, answer phone calls and emails, visit clients in jail, interview witnesses, negotiate with DCF attorneys, attend permanency staffings and case plan conferences, research law and draft motions, set up appointments for and conduct discovery, and so on.
Two of the four attorneys will have to, at a minimum, be available every single day for shelter hearings, and somehow have to make an on-the-spot decision about whether or not there is a conflict between the mother and the father without actually talking to either of them, which would of course cause the attorneys to have to withdraw from representation of both of them should otherwise confidential attorney-client discussions lead to the conclusion that there is (and there will be) a conflict.
The over-under on how many days it will take for each of the four attorneys who sign on for a part time job for 24k and discover that it is in fact a daunting and complex job requiring much more than 40 hours a week honest work given the caseload is three.
Regional Counsels, if my information is simply wrong; if my very reliable sources are all wet, then please let me know. Whatever information you'd like the readers of this blog to have, I'll pass on. Contact information is easily found at the Dependency Defense website.
On another note, I can tell you that some of the leadership among DCF lawyers locally is also worried about this whole thing. They do not want to see their cases bogged down and not move toward adjudication and permanency because of the lack of defense lawyer availability. I agree. Delay and lack of sufficient time to know the cases well is not good for any of the parties involved.
Monday, October 15, 2007
A note from your friendly neighborhood proof-reader
Dear DCF legal:
You probably want to update your website.
I do not think that this is accurate:
District 14:
District Legal Counsel: Jerome Majors
Managing Attorney: Heather Morcroft
You probably want to update your website.
I do not think that this is accurate:
District 14:
District Legal Counsel: Jerome Majors
Managing Attorney: Heather Morcroft
The first draft of the Dependency Defense case law library is online
This collection of downloadable pdf files will grow and be edited from time to time, but I've compiled enough for a start, thus if you click on the link to the case law library at this page, there is now actually something there.
I repeat my request for readers to pass on citations to "must-have" case law for dependency defense.
I repeat my request for readers to pass on citations to "must-have" case law for dependency defense.
"I want to be optimistic, but nobody has given me reason to be"
Attorney Dawn Kirk, one of the first attorneys to be listed at the Dependency Defense Attorney Directory, is quoted in a Palm Beach Post article from last Friday.
Amen, Dawn. Personally, my frustration grows daily that even with this website as a platform, I cannot get answers to very basic questions that we as Floridians ought to be able to expect from new public officials. At least a friendly "I don't know" would be something.
Pay someone a few hundred dollars to build you a website. There is an enormous difference between a modest internet presence for a new endeavor and being completely absolutely invisible, untouchable, and unreachable.
"I think it's an ill-thought-out law," said Fort Pierce lawyer Dawn Kirk, who handles child dependency cases. "My main concern is whether these people will get competent representation. It will cost the state in the long run if the system fails. I want to be optimistic, but no one has given me reason to be."
Amen, Dawn. Personally, my frustration grows daily that even with this website as a platform, I cannot get answers to very basic questions that we as Floridians ought to be able to expect from new public officials. At least a friendly "I don't know" would be something.
A word of advice to the regional counsels, and this is sincere:Others worry about the law dumping highly specialized child dependency cases on the new agency.
Kirk, the Fort Pierce lawyer, who has handled such cases for 17 years, said lawyers must be able to attend an emergency shelter hearing quickly after a child has been removed from a home because poor parents have a right to representation.
"For us, almost everything is an emergency," she said. "I'm in court every day. I don't know how they're going to do it."
Massa, who was appointed to oversee the district that includes Indian River, Okeechobee, St. Lucie, Martin, Palm Beach and Broward counties, declined to comment on the controversy surrounding the new system. He said he's concentrating on meeting the January deadline to build his office from scratch.
Massa doesn't have an official office and is working off a BlackBerry and a computer, he said.
Pay someone a few hundred dollars to build you a website. There is an enormous difference between a modest internet presence for a new endeavor and being completely absolutely invisible, untouchable, and unreachable.
CWLS to become CLS; world peace to break out
Despite my post title's sense of ironic humor, I really do applaud Secretary Butterworth for his plans for CWLS.
Read all about it here. Now, jump in the wayback machine and see how the same fairly obvious reforms were suggested almost four years ago in this OPPAGA report. If you read it, you can start at page 6 for parallels to the "new" initiatives.
Here's an excerpt from today's Florida Bar News article:
Is she saying that the "legal piece" is broken because of lack of passion among CWLS lawyers? CWLS has its problems, but I don't think that is it, I have to say.
I'll need some more information to figure out how that is a change from how it is now. Actually, if that means that some supervising attorney jobs go away (I don't know that they are), then there will actually be less upladder real estate in the future than there is now.
Not to be overly critical, but all this says to me is that the standards required of DCF in the future will be pretty basic and minimal standards of attorney conduct.
A couple of comments about that bolded portion. When I was a CWLS lawyer, I realized literally within the first week that I would have to carefully and decisively define who my client is, and stick to the definition. I searched through some bar publications about just that issue among government lawyers and I got my answer. It really isn't that hard to do, and any decent lawyer should first be concerned about it, and then quickly mentally resolve the matter. As for the training thing, that is also an obvious problem and has been for years. If they are really going to do something about that, then that is a very good thing for Florida.
Good luck to CWLS/CLS. The more professional it is, the better it is for parents and their children.
Read all about it here. Now, jump in the wayback machine and see how the same fairly obvious reforms were suggested almost four years ago in this OPPAGA report. If you read it, you can start at page 6 for parallels to the "new" initiatives.
Here's an excerpt from today's Florida Bar News article:
Bob Butterworth is on a mission to reinvent the once beleaguered social services agency he now heads by creating a professional law firm where lawyers will want to work....
...There will be two divisions. John Copelan will remain as DCF’s general counsel, with 35 to 40 lawyers in the General Legal Services Division, where duties include handling about 1,100 annual contracts...
...Asked what attributes [Mary Cagle, new statewide director of "CLS"] will look for in lawyers she hires, Cagle answered: “You need somebody who is passionate. If we can fix the legal piece, if we can make Children’s Legal Services in the department work, it is going to have a dramatic impact on the safety of kids and the length of stay in foster care.”
Is she saying that the "legal piece" is broken because of lack of passion among CWLS lawyers? CWLS has its problems, but I don't think that is it, I have to say.
George Sheldon, assistant secretary for operations, added they are hiring regional managing lawyers in the $75,000 to $90,000 range, so someone with experience can work their way up the ladder.
I'll need some more information to figure out how that is a change from how it is now. Actually, if that means that some supervising attorney jobs go away (I don't know that they are), then there will actually be less upladder real estate in the future than there is now.
“There is going to be an increased expectation at the department. I think you will find a lot of these lawyers wanting to step up to the plate,” Sheldon said.
“We are looking to explain to the lawyers that the expectation, as with any lawyer, is that when you go to court, you have met with case managers, you know all the issues in the case, and you are prepared to advocate on behalf of that child in court,” Cagle said.
“You have to stand up and be the mouthpiece. That is not happening today in every courtroom. We are going to train them and lay out the expectations and expect them to step up.”
Not to be overly critical, but all this says to me is that the standards required of DCF in the future will be pretty basic and minimal standards of attorney conduct.
Later, she added, “You know, we’re not at the point in time to ask what are you going to do with the people we have, because, in their defense, they have not had any training. They haven’t even known who their boss was. They had no chain of command or no definition in terms of who their client was. They didn’t have a model to work from. There was no direction. You really have to put all that in place before you ask that question.”
A couple of comments about that bolded portion. When I was a CWLS lawyer, I realized literally within the first week that I would have to carefully and decisively define who my client is, and stick to the definition. I searched through some bar publications about just that issue among government lawyers and I got my answer. It really isn't that hard to do, and any decent lawyer should first be concerned about it, and then quickly mentally resolve the matter. As for the training thing, that is also an obvious problem and has been for years. If they are really going to do something about that, then that is a very good thing for Florida.
Good luck to CWLS/CLS. The more professional it is, the better it is for parents and their children.
Thursday, October 11, 2007
The PDs' proposal to take over dependency defense revealed
Thanks to a tipster for this. I now have the language of the proposal presented to the special session to hand over dependency defense cases to the various public defenders.
Before I list said language, I have a suggestion for the legislature:
Please consider that state law already requires DCF to refer most verified abuse reports to the appropriate SAO for possible prosecution. Please also consider that many of those who are clients of dependency defense attorneys are also clients of the public defenders for unrelated cases, e.g., a parent who is not accused of abuse, abandonment or neglect in the civil case is often incarcerated in another criminal case with a public defender as his or her attorney in the criminal case. If in the above example, where an inmate is perhaps considered a non-offending parent in the civil case and is also represented by a PD in a criminal case, the PD will have an ethical conflict in representing the offending parent in the civil dependency case. My point is that this proposal would cover a significantly lower percentage of dependency cases than you might think at first and a second or third tier of parent representation would still be necessary.
Now to the PDs proposed changes to current legislation:
Is this all about money? Of course it is. In fairness, if you take a look at this web-browser friendly version of the excel spreadsheet sent to the legislature, it looks like the PDs intend to handle dependency cases for a total of about $7.5 million dollars per year in only 6 circuits out of 20, and that might suggest a savings, until one wonders aloud whether or not the regional counsels ever truly meant to spend 15% percent of their entire budgets (of roughly $50 million if not soon cut) purely on dependency cases, which would make up a small minority of the regional counsels' duties, and whether doing this for 6 out of 20 circuits is worth the bother.
Let's work this math problem out. If the PDs in a total of 6 judicial circuits take over dependency defense, they suggest that the budgets for those 6 circuits ought to be increased by 7 and a half million per year (am I wrong about that and the PDs are proposing taking on a nearly 8 million dollar service without a budget increase?), and presumably the budgets for the new regional counsels would be decreased by the same amount. If the regional counsels in those circuits still have to meet all of their other expectations in criminal cases, probate cases, Jimmy Ryce cases, etc. on a diminished budget, and the PDs will still have to spin off a significant number or conflicts because the various parents in dependency cases often tend to also be indigent criminal defendants at odds with one another in the dependency cases, how much money will this proposal really save the taxpayers?
I don't know. I'm just a blogger.
Join the private attorneys' message board if you'd like and school me on this.
Before I list said language, I have a suggestion for the legislature:
Please consider that state law already requires DCF to refer most verified abuse reports to the appropriate SAO for possible prosecution. Please also consider that many of those who are clients of dependency defense attorneys are also clients of the public defenders for unrelated cases, e.g., a parent who is not accused of abuse, abandonment or neglect in the civil case is often incarcerated in another criminal case with a public defender as his or her attorney in the criminal case. If in the above example, where an inmate is perhaps considered a non-offending parent in the civil case and is also represented by a PD in a criminal case, the PD will have an ethical conflict in representing the offending parent in the civil dependency case. My point is that this proposal would cover a significantly lower percentage of dependency cases than you might think at first and a second or third tier of parent representation would still be necessary.
Now to the PDs proposed changes to current legislation:
2) For the period November 1, 2007 through June 30, 2010, the public defender of the Sixth, Ninth, Tenth, Eleventh, Twelfth, and Thirteenth Judicial Circuits shall represent persons entitled to court-appointed counsel under the Federal or State Constitution or as authorized by general law in child dependency proceedings under chapter 39.
Is this all about money? Of course it is. In fairness, if you take a look at this web-browser friendly version of the excel spreadsheet sent to the legislature, it looks like the PDs intend to handle dependency cases for a total of about $7.5 million dollars per year in only 6 circuits out of 20, and that might suggest a savings, until one wonders aloud whether or not the regional counsels ever truly meant to spend 15% percent of their entire budgets (of roughly $50 million if not soon cut) purely on dependency cases, which would make up a small minority of the regional counsels' duties, and whether doing this for 6 out of 20 circuits is worth the bother.
Let's work this math problem out. If the PDs in a total of 6 judicial circuits take over dependency defense, they suggest that the budgets for those 6 circuits ought to be increased by 7 and a half million per year (am I wrong about that and the PDs are proposing taking on a nearly 8 million dollar service without a budget increase?), and presumably the budgets for the new regional counsels would be decreased by the same amount. If the regional counsels in those circuits still have to meet all of their other expectations in criminal cases, probate cases, Jimmy Ryce cases, etc. on a diminished budget, and the PDs will still have to spin off a significant number or conflicts because the various parents in dependency cases often tend to also be indigent criminal defendants at odds with one another in the dependency cases, how much money will this proposal really save the taxpayers?
I don't know. I'm just a blogger.
Join the private attorneys' message board if you'd like and school me on this.
Were Tom Lantina's parental rights just summarily terminated?
This case has me baffled. Here's a more detailed account, for as long as the link works.
Most likely I am baffled because I know next to nothing about surrogacy law, except that a quick search tells me that some courts in other states have gone completely the other way, deciding such cases under contract law (although in the cases I've seen both sperm and egg came from the intended parents, and the egg did not come from the surrogate as in this case).
Here's what I'm talking about:
Can somebody help me out in understanding this?
What has just happened is that Mr. Lamitina has had his parental rights terminated. The child has been denied not only child support, but the benefit of visitation from his or her father. And he is the child's father, according to Chapter 39 (39.01(49)) referencing Chapter 63 at 63.062(1), assuming that Mr. Lamitina has acknowledged the child in writing.
Whatever surrogacy law might have to say about this situation, the Florida Supreme Court has ruled that the right to parent a child without intrusion is a constitutional right. While such reasoning usually applies to state action, as opposed to the private law of contracts implicated in the Lamitina case, I wonder aloud if the principle of a constitutional right might not trump the contract considerations.
Bottom line: if you are a woman who wants to have a child with a man, and then keep him away from your child even though he isn't a danger to the child, all you need to do is: sign a contract to carry his child and transfer custody to him and his wife; break the contract; demand child support; and then POOF, his parental rights will be terminated.
Most likely I am baffled because I know next to nothing about surrogacy law, except that a quick search tells me that some courts in other states have gone completely the other way, deciding such cases under contract law (although in the cases I've seen both sperm and egg came from the intended parents, and the egg did not come from the surrogate as in this case).
Here's what I'm talking about:
A husband and wife from Oviedo have lost their legal battle to take custody of the baby girl they had hired a surrogate mother to bear.Estoppel! Estoppel! Estoppel!
A Jacksonville judge ruled Wednesday that Tom and Gwyn Lamitina are not the legal parents of the child, Emma, now 5 months old. The decision leaves the infant with her mother, Jacksonville teacher Stephanie Eckard... "They are obviously devastated," said the attorney for the couple, Scott Salomon of Coral Springs. He said they would appeal."The ultimate victim in this case -- the person that is suffering the most -- is the child," he said, "because at least on a temporary basis, this child is going to grow up, for the time being, without the love of a father."..The baby was born May 9, unbeknownst to the Lamitinas, and went home with Eckard. Two weeks later, she sued Tom Lamitina, demanding custody and child support.
Can somebody help me out in understanding this?
Circuit Judge W. Gregg McCaulie ruled that under Florida law, Tom Lamitina is not the child's father -- merely a sperm donor.So this child simply has no father? No biological father? No legal father? Simply no father? Is Judge McCaulie creating the legal fiction of Florida's very own immaculate conception?
Lamitina has no parental rights, the judge wrote, and therefore is not required to pay child support.
The issue before the judge was whether the two sides had a binding contract that required Eckard to surrender the child to the Lamitinas.Note the bolded portion. With respect, that was not the only issue before the court, certainly not in light of the ruling. If ultimate custody is decided based on contractual matters, then I wouldn't question the judge, especially since I've not been involved in surrogacy law. But to further rule that the child simply has no father at all is another thing. That is not, I suggest, a contractual issue.
Eckard drafted one, based on language she found on the Internet, but Tom Lamitina did not sign it until after she was pregnant, both sides agree. Soon thereafter, both sides began accusing the other of violating it.
The judge concluded that Tom Lamitina sent Eckard an e-mail in November saying he did not want the baby, and on another occasion told her attorney the same thing.
If that didn't kill the agreement, the judge wrote, Eckard's lawyer did in January, when he told Lamitina that Eckard had called off the whole thing.
What has just happened is that Mr. Lamitina has had his parental rights terminated. The child has been denied not only child support, but the benefit of visitation from his or her father. And he is the child's father, according to Chapter 39 (39.01(49)) referencing Chapter 63 at 63.062(1), assuming that Mr. Lamitina has acknowledged the child in writing.
Whatever surrogacy law might have to say about this situation, the Florida Supreme Court has ruled that the right to parent a child without intrusion is a constitutional right. While such reasoning usually applies to state action, as opposed to the private law of contracts implicated in the Lamitina case, I wonder aloud if the principle of a constitutional right might not trump the contract considerations.
Bottom line: if you are a woman who wants to have a child with a man, and then keep him away from your child even though he isn't a danger to the child, all you need to do is: sign a contract to carry his child and transfer custody to him and his wife; break the contract; demand child support; and then POOF, his parental rights will be terminated.
Say it aint so
I shot the breeze with a CWLS (those are DCF's dependency lawyers) attorney today who had been in a meeting with one of the five regional counsels. I'll leave both unnamed, and let you take it for what it's worth.
The attorney said that the particular Regional Counsel had remarked that he intended to approach dependency cases as follows: take one of the parents, conflict the rest out, and consent at arraignment.
I imagine that anyone bothering to read this will know what consent means, but in case you do not, it means having a parent decline an opportunity to contest the allegations against him or her and agree to perform whatever case plan tasks DCF requires of him or her before being reunified with the child or children involved.
Not having been in on the conversation, I'll allow for the possibility that the Regional Counsel meant they'd consent in the cases where such a plea is, in fact, proper and does not harm the client's position. That would be efficient in such cases.
Still, it implies that perhaps not a lot of effort and resources would be put into conducting an independent investigation of the alleged facts of the case. The ability to put investigators on cases is one potential advantage that the regional counsel offices might have over sole practitioner private defense attorneys. The ability to use staff resources to conduct sufficient depositions and other discovery is also a potential advantage of a well-functioning, staffed, and resourced regional counsel office over a sole practitioner private defense attorney.
Will all that really get done by arraignment, which occurs twenty-one days or less from the time of the shelter hearing? Surely those who defend parents who have had their families taken apart by state action don't intend to decide on the outcome of the case without interviewing not only the client, but the potential witnesses, etc. Let's hope not.
It's just an offhand remark I repeated and won't source, so I don't intend to rile anyone up too much over it. It simply doesn't make me feel better about the new system.
The attorney said that the particular Regional Counsel had remarked that he intended to approach dependency cases as follows: take one of the parents, conflict the rest out, and consent at arraignment.
I imagine that anyone bothering to read this will know what consent means, but in case you do not, it means having a parent decline an opportunity to contest the allegations against him or her and agree to perform whatever case plan tasks DCF requires of him or her before being reunified with the child or children involved.
Not having been in on the conversation, I'll allow for the possibility that the Regional Counsel meant they'd consent in the cases where such a plea is, in fact, proper and does not harm the client's position. That would be efficient in such cases.
Still, it implies that perhaps not a lot of effort and resources would be put into conducting an independent investigation of the alleged facts of the case. The ability to put investigators on cases is one potential advantage that the regional counsel offices might have over sole practitioner private defense attorneys. The ability to use staff resources to conduct sufficient depositions and other discovery is also a potential advantage of a well-functioning, staffed, and resourced regional counsel office over a sole practitioner private defense attorney.
Will all that really get done by arraignment, which occurs twenty-one days or less from the time of the shelter hearing? Surely those who defend parents who have had their families taken apart by state action don't intend to decide on the outcome of the case without interviewing not only the client, but the potential witnesses, etc. Let's hope not.
It's just an offhand remark I repeated and won't source, so I don't intend to rile anyone up too much over it. It simply doesn't make me feel better about the new system.
A bit less cryptic
From a commenter to an earlier post:
I can't say that I blame the PDs given their worries over budget. It should be obvious that this proposal, if adopted would well and truly kill off the rotation for private attorneys in dependency cases. My gut tells me this will not happen in the special session, but if it is brought back up again in the regular session next year...well, I suppose you read it here first.
I just spoke with (attorney X), who identified himself as employed with the PD's office in Orlando. He said that the PD Association had previously proposed to take the first crack at dependency representation in all circuits and allow the Regional Conflict Counsel to handle any conflicts - similar to the way criminal cases will be handled.
This was proposed in the Special Session as a stopgap measure to stem the budget reduction the PDs were facing anew. Apparently this issue is too complicated for the Special Session as (attorney X) reports that the effort has stalled. He agreed to email me the written supporting documentation.
I can't say that I blame the PDs given their worries over budget. It should be obvious that this proposal, if adopted would well and truly kill off the rotation for private attorneys in dependency cases. My gut tells me this will not happen in the special session, but if it is brought back up again in the regular session next year...well, I suppose you read it here first.
Flyte gets off the ground
The good news:
More:
Congratulations to Mr. Flyte and to Lee County. I think it is shrewd on his part to begin accepting appointments prior to the January 1, 2008 deadline, and wise for Lee County to step up and avoid being the reason why criminal cases stop being prosecuted.
The office charged with being a second tier of public criminal representation for Southwest Florida is receiving criminal cases,...the bad news:
...although it has no office space and isn’t fully staffed with attorneys.The full article is here.
More:
Last week, Lee Circuit Judge Thomas Reese appointed the Regional Conflict Counsel to represent Joshua Bauer, a 22-year-old Fort Myers man charged with murder and attempted robbery in the April killing of tire store owner Epimenio Leal.
Reese has set an April 1 court date for Bauer, who faces the death penalty.
Now Jack Flyte, the Bartow attorney appointed to head the office that will represent some indigent Southwest Florida defendants, is beginning the process of representing clients while hiring a staff and finding offices.
He said the office will be accepting cases on Nov. 1 and sent letters to chief judges along the state’s west coast asking them to hold off on appointments until then.
Lee County Facilities Director Rich Beck said the conflict counsel is set to move into a fifth-floor office of the Lee County Justice Center Annex by Nov. 1. Flyte said Lee County is the first of 14 counties to guarantee office space, which is mandated by state law.
He said the office in Fort Myers will have about 10 attorneys plus support staff. Flyte said that within two weeks he will have hired about 45 attorneys to handle the 14-county area that comprises his district.
Congratulations to Mr. Flyte and to Lee County. I think it is shrewd on his part to begin accepting appointments prior to the January 1, 2008 deadline, and wise for Lee County to step up and avoid being the reason why criminal cases stop being prosecuted.
Wednesday, October 10, 2007
3 questions not answered
Here is the safe post: "Last week I sent emails to each of the Regional Counsels and asked them three questions that many of us believe to be critical to maintaining a continuity of legal services to indigent parents hauled into dependency court by DCF. A week has passed and none have responded."
Here is the more bold, substantial, and career-killing post:
...for a couple of hours Wednesday night my rant was posted here. I've thought better of it....
Here is the more bold, substantial, and career-killing post:
...for a couple of hours Wednesday night my rant was posted here. I've thought better of it....
Monday, October 8, 2007
Keeping an eye on the special session, part 1
According to this analysis, what is proposed in the budget that the legislature is now working on in special session, the Offices of the Regional Counsels are facing a reduction in their start-up budge of $2,708,286 statewide (from what was originally about a $50Million budget)
Sunday, October 7, 2007
Cryptic
Today I got the following email message from one of the five Regional Counsels. Can any of you tell me what's going on?
Are you aware of the proposal submitted to the special session by the Public Defender Association last week? My office is hiring part -time experienced private attorneys to handle these cases. This allows them compensation and state benefits and retirement while still maintaining a private practice. This new PD proposal appears to be just like any other PD office that does not allow for any private practice. Your statement about "Experienced private attorneys are part of the solution" does not seem to be a part of the PD plan.
Thursday, October 4, 2007
Three Questions for the Regional Counsels
After attending the local Criminal Defense Lawyers Association luncheon featuring our Regional Counsel Jeffrey Deen last week, the most important questions that need to be answered right away (from a list of many questions) have crystallized in my mind. I intend to email each of the RCs this evening with these three questions. I will report to you their answers as they come in, or lack of response if I don't hearing anything by next Monday.
Question 1: In your meetings with various officials to help you set up your offices and prepare to operate, have you met specifically with the judges assigned to hear juvenile dependency cases? If not, when do you intend to do so?
[ed: In Orange County, the answer to the first part of question one is no.]
Question 2: Florida Statutes sections 39.402(8)(c)(2 & 3) state the following:
Question 3: Please consider the following two brief hypotheticals. In the first, a child is sheltered for exposure to domestic violence between mother and father. Both parents appear at the shelter hearing and either deny everything or else each claim that the other is the aggressor. In the second hypothetical situation, a child is sheltered with multiple fractures. Both parents, who may or may not live together, appear and each declares that they have no idea how the fractures were caused. DCF may or may not suspect one of the parents, but is not in a position to prove anything yet.
Having considered those hypothetical but typical situations, how will your office determine whether or not there is a conflict that requires appointment of private counsel? Will you interview both parents and then select one to represent, having also received information from the other? Will you be willing to declare that a conflict exists on the face of the circumstances, or do you propose another method of certifying that a conflict exists?
Question 1: In your meetings with various officials to help you set up your offices and prepare to operate, have you met specifically with the judges assigned to hear juvenile dependency cases? If not, when do you intend to do so?
[ed: In Orange County, the answer to the first part of question one is no.]
Question 2: Florida Statutes sections 39.402(8)(c)(2 & 3) state the following:
(c) At the shelter hearing, the court shall:
2. Inform the parents or legal custodians 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 the procedures set forth in s. 39.013; and
3. Give the parents or legal custodians an opportunity to be heard and to present evidence.
Given your requirements for certifying a conflict before a second parent is appointed an attorney from among private counsel, and given the statutory requirement that eligible parents who appear shall have counsel appointed at the shelter hearing (or any other hearing or proceeding if it is the parent's first appearance) , what is your plan to comply with the law in this regard when more than one parent is present at the shelter hearing?
Question 3: Please consider the following two brief hypotheticals. In the first, a child is sheltered for exposure to domestic violence between mother and father. Both parents appear at the shelter hearing and either deny everything or else each claim that the other is the aggressor. In the second hypothetical situation, a child is sheltered with multiple fractures. Both parents, who may or may not live together, appear and each declares that they have no idea how the fractures were caused. DCF may or may not suspect one of the parents, but is not in a position to prove anything yet.
Having considered those hypothetical but typical situations, how will your office determine whether or not there is a conflict that requires appointment of private counsel? Will you interview both parents and then select one to represent, having also received information from the other? Will you be willing to declare that a conflict exists on the face of the circumstances, or do you propose another method of certifying that a conflict exists?
The Family Preservation Lawyers Association...
...does not exist.
Last night I caught a local PBS program, produced by Volusia County PBS affiliate DBCC about foster care issues. I believe it was entitled Crisis in Foster Care. The program was hosted by a very nice (GAL) Guardian ad Litem representative. Her panel consisted of the DCF District Administrator, a circuit court judge, the CEO of the local CBC (Community Based Care) organization, and the local GAL coordinator.
So what was missing? Besides there being no mention during the program of the role or value of defense counsel for parents involved in the system, there was no representative on the panel to represent parents' issues.
Why is that? Most likely, it is because there is no such thing. From the little I know of the legislative committee hearings that considered SB 1088, I doubt that there was any comparable statewide organization to speak for dependency defenders, and that would have been useful to everyone if there had been.
There is no statewide or intra-state organization called the Florida Dependency Defense Lawyers Association to my knowledge. Am I wrong about that? Let me know if I am.
There is no Florida Bar Section devoted to dependency law. There is no Bar Committee devoted to dependency law. There is no board certification available for child dependency law. Am I wrong about any of that? Let me know if I am.
I want to change that. I propose the organization of "The Florida Family Preservation Lawyers Association". If I can get help with it, it would incorporate in the appropriate form to allow it to represent its members in legislative matters.
As a start, we need volunteers to head regional chapters corresponding to the five DCAs that may eventually branch into circuit or county chapters. First things first.
Is anyone interested?
Last night I caught a local PBS program, produced by Volusia County PBS affiliate DBCC about foster care issues. I believe it was entitled Crisis in Foster Care. The program was hosted by a very nice (GAL) Guardian ad Litem representative. Her panel consisted of the DCF District Administrator, a circuit court judge, the CEO of the local CBC (Community Based Care) organization, and the local GAL coordinator.
So what was missing? Besides there being no mention during the program of the role or value of defense counsel for parents involved in the system, there was no representative on the panel to represent parents' issues.
Why is that? Most likely, it is because there is no such thing. From the little I know of the legislative committee hearings that considered SB 1088, I doubt that there was any comparable statewide organization to speak for dependency defenders, and that would have been useful to everyone if there had been.
There is no statewide or intra-state organization called the Florida Dependency Defense Lawyers Association to my knowledge. Am I wrong about that? Let me know if I am.
There is no Florida Bar Section devoted to dependency law. There is no Bar Committee devoted to dependency law. There is no board certification available for child dependency law. Am I wrong about any of that? Let me know if I am.
I want to change that. I propose the organization of "The Florida Family Preservation Lawyers Association". If I can get help with it, it would incorporate in the appropriate form to allow it to represent its members in legislative matters.
As a start, we need volunteers to head regional chapters corresponding to the five DCAs that may eventually branch into circuit or county chapters. First things first.
Is anyone interested?
Tuesday, October 2, 2007
DCF pays out average of $7.3 million a year in lawsuits
From the Miami Herald:
$16 million since January of this year?
During the past decade, no department has paid as much to settle lawsuits as the state's child welfare agency. In 10 years, the state has paid $73 million to resolve lawsuits involving DCF. And since January, DCF and the state's Division of Risk Management have settled 29 cases totaling $16 million.
$16 million since January of this year?
Those who have repeatedly warned about shortcomings in Florida's safety net for children over the years say the steady stream of litigation should be a wake-up call.
''What's been going on in our foster care system for far too long is that the children are not being kept safe,'' said Karen Gievers, a Tallahassee attorney representing five children to whom the state agreed to pay $1.2 million. The five were sexually assaulted by a Merritt Island foster parent who was allowed to adopt the children. The lawsuit, settled in August, lambasted DCF for allowing Robert Howard, now awaiting trial on sex abuse charges, to adopt the children even though the state had shut down his foster home.
Dozens of other cases settled by DCF are similar. Last month, the agency agreed to pay $1.4 million to a child who was placed in an overcrowded foster home where she was repeatedly sexually abused by two older foster children.
State Rep. Dan Gelber, a Miami Beach Democrat, said he is glad Butterworth is trying to settle the lingering cases. But he said he questions whether the department is doing enough to track and prevent abuse against children in state custody.
''I want to know whether this reveals the quality of the care,'' said Gelber, who has sent a listing of recent DCF settlements to the GOP lawmakers who oversee the agency.
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