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.