Wednesday Topic Soup

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

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

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

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

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

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

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

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

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

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

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


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

Keeping what children safe from whom??

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

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

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

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

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

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

Congratulations Tate High School

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

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

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

Us vs. Them?

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

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

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

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

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

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

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

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

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

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

Double Hell

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

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

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

The judge tells the attorneys their objections are premature.

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

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

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

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

Oh Hell

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

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

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

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

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

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

The "ethics complaint" serialization, part 2

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

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

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

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

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

You're welcome, I guess

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

I liked this part:

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

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

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

Sunday evening links

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

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

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

But you knew that already. Just a reminder.

Friday musings -- and more on ethics complaint

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

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

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

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

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

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

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

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

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

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

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

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

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


Part two of the serialization to follow.

From our user comments in re: ethic complaint

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

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

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

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

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

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

Ethics charges story on one of the RCs may have legs

Subtitle: Mission First.

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

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

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

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

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

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

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

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

HB1179

Sponsored by Rep. Bill Galvano, Republican Bradenton

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

HB 1179 2008

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

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

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