Defending parents against the power of the state to take their children

...is a thankless job, is it not?

DCF psychotropic meds report

In the aftermath of the tragic Gabriel Myers case, DCF set out to review the numbers of kids in the system who are on psychotropic medication.

I hope to study the report more and comment further, but for the moment I'll give you the link to it:

Meds report

Unless I just don't know how to read anymore, the numbers for Orange County seem absurdly under-reported.

Slightly related: I often wonder if the compulsion to perform a CBHA (Comprehensive Behavioral Health Assessment) on each and every child in DCF care leads inevitably to many, many more diagnoses of mental health problems than there ought to be, and perhaps wouldn't be, if either (a) the CBHAs were never done in the first place, or (b) the first such assessment were done by licensed doctors and not the folks who routinely produce the CBHAs.

The Breakout Group That Wasn't

...If only we'd had a SIGN.

It's like that Eddie Izzard routine about lacking a FLAG when claiming a discovered country.

I attended the Florida Dependency Summit the past few days, which is always useful, if for no other reason because you get a fresh copy of Chapter 39. Intrepid blogger at Guardian ad What? and I thought a dependency blogger breakout session (rather a renegade pirate rebel unauthorized forbidden dependency blogger breakout session) would be a nice addition. We just lacked a sign, so it was not to be. Not to mention that neither of us know each others' names or what we look like, but that's neither here nor there.

Next year there SHOULD be a blogger forum. And there SHOULD be a push by someone to discuss forming a voluntary bar association of dependency lawyers. What are we waiting for?

What we're waiting for is for lawyers to enter into a spirit of cooperation when there is no real money in it, that's what we're waiting for.

Link to global revolution church audio

...in anticipation of my appearance tomorrow on Fox and Friends. The link below demonstrates several things that I will argue in court, and not here (at least not now), but I want to present some basis for my claim that it appears that the Global Revolution Church renamed Rifqa Bary "Anna" during the 2.5 weeks that they had her in Florida.

Note also the simple act of Ohio police questioning a man in Kansas City in an honest attempt to locate a missing teenager (by the way, it worked, the Kansas City man apparently somehow knew that the child was with the Lorenz family and tipped them off that the police had questioned him) is portrayed by the pastor as "illegal" and as persecution.

Note also the emphasis on surrounding "Anna" with people telling stories about honor killings. How much of this did she hear in that 2.5 weeks?

Link is below. Admittedly, it is edited. The full sermon audio is on the church's website. I edited it for time and to focus on the things described above, but not to change the meaning of anything said in the full context.

LINK TO THE "ANNA" (RIFQA BARY) GLOBAL REVOLUTION CHURCH SERMON

[update: If clicking on the link doesn't work, cut and paste the url below to download audio:]

http://dependencydefense.com/revchurchedited.wav

Lawyer for Rifqa Bary's Mother Reacts to Governor Crist's Statement

The Governor's unfortunate decision to make a public statement taking sides in the Rifqa Bary case before any evidence other than allegations has been presented underscores the need to return this case to the child's home state of Ohio. Governor Crist stated that he was “grateful” that the judge ruled a specific way and in support of his “administration's position”. The entire Bary family has already been exploited by those who recklessly wish to force this case into a clash of religions, and now by the Governor's statement the Bary family's case has become a political matter as well.

Given that the Regional Counsel responsible for defending Mr. Bary is a political appointee of Governor Crist, a public statement of the Governor's pleasure with a specific ruling in the case is not appropriate. Now the Barys can only conclude that chances for impartiality and straight-forward dealings with DCF are slipping away.

Hey! One of the Regional Counsel Offices has a website!

I've been stunned and amazed for a couple of years that none of the Regional Counsel offices bother to maintain a website, as you might recall from this old post.

So in fairness I ought to point out that one of them actually has a website now.

Now the clients for the 4th Regional Counsel can find out how to contact their attorneys via the internet.

Excuse me?

Now this is a headline: "Former DCF Employee Sentenced For Embezzling $1.5 Million"

It was an emotional scene Thursday evening in a Broward County courtroom after a judge sentenced a longtime state employee who, along with two others, embezzled more than $1 million from the Department of Children & Families.

It was money that was earmarked for needy children.

Violet Jones, the ringleader in the embezzlement scheme, was the last to take the stand.
..."I should have known better," said the former DCF supervisor.
...Jones was sentenced to 17 years in state prison and 13 years probation for stealing $1.5 million dollars from DCF accounts and spending the cash. The Shorter sisters were sentenced to 10 years in prison, 20 years probation.

Words found in other news accounts...."widely respected" and "supervisor".

Wow. Well that sort of eats up a good chunk of the money Florida saved by pretty much destroying the private dependency defense bar, doesn't it?

Congratulations to the President-Elect

As I noted in the post below, I try to keep this blog non-partisan. I want to mark the election, however, and pass on to you something that I believe to be very well said at the NCCPR blog:

No matter who we voted for Tuesday, we all should be grateful for two things: First, let us be grateful that, when Barack Obama's mother decided she couldn't raise him for a while, no Child Protective Services agency ever got involved. And second, we should be glad that Marcia Lowry, founder and leader of the group that arrogantly calls itself "Children's Rights" (CR) was not suing the State of Hawaii from 1971 through 1979.

This was the time when Barack Obama was being raised by his grandmother who, so sadly, died Monday. Obama has said a great deal about how important Madelyn Payne Dunham was to him. On Tuesday, Obama made history – and odds are that wouldn't have happened had he not spent eight years living with Dunham in what now we would call informal kinship care.

But in those cases where, unlike Obama's, child protective services is involved, CR is trying to curb informal kinship care drastically. The group has decided that the magic bullet for foster care is licensing. So the group's latest crusade is trying to strong-arm states into requiring that every grandmother, grandfather, aunt, uncle or other relative who steps forward to care for a loved one whose parents are accused of maltreatment jumps through all the same hoops and meets all the same hypertechnical licensing requirements imposed on total strangers. With only limited exceptions, the CR rule would be: No license, no grandchild.

Random state control update

I try, I really try, to keep politics out of this blog. I mean that. The majority of my colleagues who defend parents in dependency cases are what we would call politically liberal. The majority of my colleagues who work for the state, both attorneys and case workers and their web of supervisors (and by the way, DCF attorneys in Florida are now required to announce themselves as "attorney for the State" in all proceedings) are what we would call politically liberal.

Cool.

So please excuse me if I mention this:

"Our practice is when someone is thrust quickly into the public spotlight, we often take a look" at them, Jones-Kelley said"

It speaks for itself. Or at least, it ought to. Do I have this right? If a government official in charge of whether or not you get to keep your kids happens to hear your name somewhere, she by normal practice "takes a look" at you?

Scary.

Hey, how about this? Imagine you are a parent of a teen. Your teen is at school, and there is a sudden evacuation because there may be something lethal, something dangerous to life and limb, something frightening going on. Or maybe not. Your teen, standing outside the school and classroom and not especially being asked to participate in anything you might call learning, calls you on a cell phone to tell you that just in case you are worrying, she is o.k.

She gets suspended for violating the zero tolerance policy on involving parents in events that are 100% under the control of government, thank you very much.

I want to make a speech here, but I won't. Both of those links speak for themselves, and you and I (we dependency experts on both sides of the courtroom) know full well that "government", when it comes to deciding what is best for you and your children, is not some hyper-competent monolithic apparatus, but is usually instead a collection of scared young workers who will do anything but admit being wrong now and then.

More money to go to the removal side of the equation

This looks good on the surface, but underneath is a bad idea.

4th Regional Counsel seems heading for a crash

First, and let me get this out of the way: this is not gloating. I've never particularly wanted to see the OCCCRCs fail; I just don't see anything to disabuse me of the notion that failure is inevitable.

I've seen plenty of news articles over the past year stating that the offices are "up and running". I've not, until today, seen a news source take a closer look at how the offices are doing. This is from today's Daily Business Review. Some excerpts:

In a foundering economy with tight employment prospects, a new West Palm Beach-based state agency created as a backup public defender’s office is having problems retaining lawyers, suffering massive turnover in its first year.

At least 26 attorneys and staffers have left the office — including many who were forced out. That is almost a third of the 79 employees hired since September 2007, according to records obtained by the Daily Business Review.[snip]...A number of the people have been fired, and others left when faced with dismissal, according to sources familiar with the office who spoke on condition of anonymity. Others who quit of their own accord cited bad management, heavy workloads, poor working conditions and inadequate pay. Some said they left because they were forced to take cases above their experience level.[snip]...Complaints from former staffers have prompted several officials to take a closer look at the office.

Chief Palm Beach Circuit Judge Kathleen Kroll said she plans to review the office’s representation. Citing the chief judge’s responsibility to monitor capital cases, she said she recently pulled the files of the two Palm Beach Circuit death penalty cases assigned to Massa’s office to see how they are progressing.

“There’s been some concerns raised, and we’re not sure if it’s just disgruntled employees or legitimate concerns about the office,” Kroll said. She wants to meet with Massa.

The Broward and Palm Beach public defenders plan to meet with each other to discuss the conflict counsel office....

OK, you get the point. You should read the entire story. Here's a couple more interesting things. Remember, the 4th RC's budget began in 2007 was reported as "around $5 million":

Critics claim the conflict counsel offices were woefully underfunded from the start. The 2008 state budget provided for a total of $7.1 million for the 4th DCA office and its allotted 63 positions. According to records obtained by the Review, more than 15 percent of these positions are open. The Legislature gave Massa a raise in July from $80,000 to $100,000. One of his chiefs, Jennifer Hixson, got a $17,000 raise to take her salary to $77,000. Some of the other employees also saw increases in salary.

I've been predicting all along that within a couple of years, the budget for the OCCCRCs will exceed the amount formerly paid to private (rotation) attorneys. And that leads me to what really caught my eye in the article:

“It gave me pause as to whether poor people were receiving the quality of representation and treatment that they’re entitled to,” Finkelstein said in an interview. “I don’t know whether or not the rumors are true, but it has certainly raised at least a warning that gives rise to questions that need to be posed.”

He said he plans to speak to Palm Beach Public Defender Carey Haughwout about concerns and potential problems about the office.

Haughwout said high turnover makes for “very unstable representation.” When told what the Review found, she said that’s much higher turnover than in her office.[snip]...Attorney Omar Ghaffar, who worked in the Fort Lauderdale office from May to September, said he was hired as a civil attorney, and his managers assigned him to criminal cases.

“I told them straight out that I’m not feeling comfortable doing these murder cases,” the former Broward assistant public defender said. He said he was assigned to cases he was barred from taking as a private attorney under the registry system that was in effect before the conflict counsel’s creation.

And there's the real issue. Even we forgotten few in dependency defense have to exhibit a certain level of proficiency before our local ISC will put us on the list. The ABA has model qualifications for private dependency defense lawyers (and criminal defense lawyers as well, of course). It appears from reports similar to those in the quoted article that, other than a bar card, there are no standards for experience before one is sent out on the job as an assistant regional counsel.

Hideous

Just a reminder that termination of parental rights is not always the best way to protect children.

End Game

There is a reason there aren't posts here very often. It's related to the fact that my effort at building an online community of dependency defense lawyers has failed, I think.

Let's start with this: the J.A.C (the ironically named Justice Administrative Commission) has been demanding hearings and contesting payment for lawyers who have represented so-called "non-offending parents". Never mind that Chapter 39 is quite clear about all parents' entitlement to counsel; never mind that the very notion of non-offending parents was created by case law; never mind the irony that JAC is presenting case law, instead of Chapter 39, in hearings to twist a ruling somewhere that there is no constitutional right to effective counsel in dependency proceedings to mean that there is no constitutional right to counsel at all in dependency proceedings at all. Never mind all of that. What is important is that a governmental agency that goes by the name of "Justice Administrative Commission" spends what seems to be 98% of its time and resources seeing to it that those who seek justice for the indigent have a hell of hard time being paid for doing so, despite the contract JAC signs with them.

Now consider this: when I was asked by many in my circuit if I would apply for the position of Regional Counsel, I was flattered, but I answered honestly; I could not, with my experience in operating complex organizations and handling budgets and personnel, in good faith apply for a job that I knew simply could not succeed in its mission. I knew, and know, that the Regional Counsel offices simply cannot handle their mandates without at least twice (more likely triple) the budgets given to them. Of course, if their budgets were doubled, they'd be more expensive than the old wheel/rotation system of using private lawyers did, but that doesn't matter anymore because that ship has sailed.

Next consider this: it seemed strange that the Republican legislature of the State of Florida created a governmental solution, instead of a private solution, to the problem of indigent defense costs. Surely there were other options. I had plenty of them in my head. Nobody asked me. Nobody asked anyone who is in the trenches as appointed counsel in dependency cases.

As I write this, the nation is torn over fears spread by the republican President, the democrat Congress, and on down, that only the government can save us from a credit crisis created by...wait for it...the policies of past presidents and Congress. There is a link here, I think, or at least a fear of a link.

What if the whole point of the recent changes in Florida is to get rid of the notion of court-appointed attorneys for the indigent in dependency cases? What if that is the desired result? I give you the Cloward-Priven strategy, in which a system is overloaded with demands on it with the purpose of causing it to collapse (remember my response to why I wouldn't in good conscience apply for Regional Counsel) to the point that the system collapses and the public clamors for reform...in this case that reform being that indigent parents in dependency cases are not entitled to counsel.

I have come to believe that that is the end game. Put together all of the above, underscored by JAC's position in its various hearings about fees, along with the very predictable failure of the Regional Counsel offices, together with the fact that in at least one Florida jurisdiction, the Public Defender is no longer required to take certain cases, with other jurisdictions looking to grab on to this notion, all leading to a collapse of the Regional Counsels, and.....and....

The only thing that will make fiscal and legal sense after all of that is for Florida's appellate courts to back off and say that the indigent in dependency cases are not entitled to counsel at all, despite what the legislature said in Chapter 39.

And then the cost of an unfettered DCF and unlimited costs incurred by foster care without any watchdogs will come to roost. I started DependencyDefense.com with the notion that those costs and consequences were the whole point. I'm beginning to wonder if I was wrong. Costs and consequences be damned, I now seriously wonder if the Cloward-Priven strategy might not be in full effect, and the whole point of this is simply to create near-absolute power of government over any family who might be subjected to an anonymous phone call to the government. That it was a Republican legislature and a Republican Governor who gave us this is a little baffling, but less so every day that I see the plan to squeeze out competent lawyers for indigent parents come to fruition.

Holy Cow

OMAHA, Neb. — Eleven children ranging in age from 1 to 17 were left at hospitals Wednesday under Nebraska's unique safe haven law, which allows caregivers to abandon youngsters as old as 19 without fear of prosecution.

Nine of the children came from one family. The six boys and three girls were left by their father, who was not identified, at Creighton University Medical Center's emergency room. Unrelated boys ages 11 and 15 also were surrendered Wednesday at Immanuel Medical Center.

The rest of the story is here.

Overheard at the Dependency Summit

In a workshop at Thurday's Florida Dependency Summit, 3rd District Regional Counsel Joseph George offered some comments in the group discussion.

The leader/instructor asked him to explain his office, and in doing so he proclaimed that "there are no more private attorneys" defending parents in dependency court. Your blog author can tell you that rumors of his lack of existence are wildly exaggerated.

Mr. George also stated that "We (the Regional Counsel attorneys) are not just parents' attorneys; we are a DCF partner." He said that twice. I don't wish to make too much of that, in the context of the discussion one could hear that to mean that he seeks to reunify parents....just like DCF does. I guess. Personally, I think my clients don't want to hear that I'm a DCF partner. They want me to work to mediate solutions sometimes, yes. They more often want me to oppose and fight DCF, thus the whole "defense" in defense attorney thing. Partner with DCF? I don't think they want that. And really, had I sat for an interview to be the Regional Counsel, I wouldn't have thought that they'd want to hear that one of my goals in largely replacing the private defense bar would be to partner with the opposition. Seriously, have any elected Public Defenders ever gone to a convention of prosecutors and law enforcement and told them that the Public Defender is their partner?

Enough of that.

Lastly, and the most fun:

In a small room that contained 15th Judicial Circuit Chief Judge Kathleen Kroll and Florida Supreme Court Chief Justice Peggy Quince, Mr. George referred to his attorneys handling dependency cases as "My girls -- I mean attorneys".

A low "ooooooh" was heard from many in the room.

Incidentally, one of the points in the discussion (it was about media relations) made by the instructor was that, essentially, privacy is an illusion in this age (I agree) and that, in fact, what went on in the workshop may well be on the web before the end of the day.

So there you go.

See you at the summit!

If you happen to be at the Florida Dependency Summit 2008 over the next three days, I hope to bump into you.

I'll be the guy in a tie clutching his brand new copy of Chapter 39.

Seriously, if anyone wants to leave a comment here, I'll check an maybe we can get together and compare notes Thursday afternoon.

I'm not dead

You may have noticed very few posts lately.

It's not that there isn't news; it's not that there aren't things to blog about.

It's about being BUSY. So I apologize.

Here, in a flurry, are some things on my mind about dependency defense:

1. That Las Vegas seminar is coming up. There are only a few days left to register and get a discount for being part of a group. Get in contact with me and I can hook you up with that.

2. JAC. What can I say? These days, I'm stunned when I don't get an audit deficiency for the simplest of flat rate cases. My bookkeeper quit; it's just too much hassle dealing with JAC. My other two assistants can't keep up with the audit deficiencies. So, JAC wins. I no longer even know how much they owe me and can't find enough time to schedule enough hearings over contested fees. You win, JAC; you've made up a reason to avoid complying with your contract with me on scores of cases, and finally got me to think about how to withdraw with honor from defending dependency cases.

3. The Regional Counsel attorneys in my county (that being Orange) are good folks. They tend toward the zero experience in dependency cases, but the ones working it now are doing a pretty good job. I've enjoyed, in fact, my role as de facto mentor for some of them. Interesting rumor: the waiver cases (regarding parental notification for a minor getting an abortion) in the region are all being sent to Orange County because there aren't attorneys in neighboring counties to handle them. I'm not sure what significance that has, but it is interesting.

4. Speaking of JAC, they recently gave me an audit deficiency for not including in my billing the form that I myself came up with, drafted, and distributed on the Dependency Defense website. It seems that it is now required, so pardon me if I pat myself on the back for having thought of the need for it a year ago. Use this link to find the form in MSWord form so you can adapt it to your needs (see the section of that page labeled "forms").

5. Is anyone going to the dependency summit in Orlando at the end of August? Let me know, and we can get together and compare notes.

6. The best source of information about the Russo-Georgian War is at this link.

7. The ICPC is broken. Much, much more on that later.

Who should replace Bob Butterworth at DCF?

As you probably know, DCF Secretary Bob Butterworth resigned this week, effective August 15.

The question is, who do you readers think should take over?

I nominate Alan Abramowitz. I'll write more on that later.

You mean the statute means what it says it says?

Homeless for one night......

Good stuff, although it strikes me that an appellate decision that more or less recites the exact language that's already in the statute isn't an enormous victory.

Here's the link to the article, "Homelessness no excuse to remove child"

Here's an excerpt:

A Miami appeals court rebuked the state child-welfare agency Wednesday for removing a 12-year-old boy from his mother because she was homeless, ruling that not having a home for a child does not by itself constitute abuse....''Homelessness, derived solely from a custodian's financial inability, does not constitute the kind or level of abuse, neglect or abandonment necessary to justify removal of a child, unless [the state] offers services to the homeless custodian and those services are rejected,'' the court wrote....[Hey, here's my old friend Alan again]Alan Abramowitz, who took over as head of DCF's Miami operations last year with a reputation for preserving troubled families and reducing foster-care caseloads, hailed the ruling. ''If we removed a child because of homelessness we should be reversed,'' Abramowitz said. ``We are obligated to offer services to keep families together.''[but...but...but...]DCF is continuing to investigate the case of the mother, identified in court papers only as M.B., and agency administrators are ''reviewing our options'' before deciding how to proceed, Abramowitz said, adding that new information about the family emerged after the hearing that was presided over by Judge Manno Schurr in April.

My advice regarding that last part: get the investigation and what you intend to allege right the first time. That's helpful for everybody.

Here's a pdf of the decision from the 3rd.

It is a relatively short 5 page opinion. It points out the circular logic of a shelter petition that attempts to get around the mandate to provide services prior to removal because, in DCF's opinion, it can't provide the mandated services to minimize the danger to the child because...wait for it...the child is in imminent danger without said services in place.

I know. We've all been there.

It's also interesting to me that even though during the time between the filing of the shelter petition and the shelter hearing, the mother had secured a place to stay, and yet the judge sheltered the child anyway entering an order finding that the mother had no place to stay. That's an example of the first allegations sticking hard to cases, no matter what actual facts might develop later. That's one of the most frustrating things about dependency cases, in my opinion. You can litigate every single allegation, and disprove all of them, but the original allegations will be at the top of every single document ever filed subsequently.

Counties taking up Justice Pariente's suggestion

Now this is bold. I can't blame the RC for trying, I suppose.

In Flagler, the council's [sic] request included hiring an additional staff member, Hadeed said Friday.

"We contend that even if the law were constitutional, which we claim it is not, payment of salaries clearly is not the obligation of counties," Hadeed said.

"Council" above should have been written "counsel".

Here is the larger context of that quote:

The Florida Association of Counties met Wednesday and opted to move forward with the suit, which was a stipulation Flagler commissioners attached before agreeing to join. Association members also decided that Flagler and other small Florida counties can get on board for a one-time cost of $500....[snip]...The association's lawsuit questions the constitutionality of an unfunded state mandate relating to indigent legal representation, or court-provided public defenders. Recent state legislation is requiring counties to contribute to a newly created entity, the Regional Conflict Counsel, by paying for office space, utilities, office equipment, security and maintenance.

And this from Broward:

A new, obscure state agency that helps represent the poor in court has rented offices on posh Las Olas Boulevard and wants Broward County taxpayers to pick up the $416,000- a-year tab.

County commissioners, forced to reduce services to provide property tax relief, refuse to pay the rent and ordered their attorneys to join other counties in a lawsuit.

Comments: $416k each and every year is a lot of money. Call me a rube, or worse if you'd like, but I wouldn't be going down that road were I the RC. The OCCCRCs are designed for failure in the first place, however unintentionally, and only creativity and innovation will allow any of them to succeed. So since most of the attorneys are in court all the time anyway, why not buy a building in a less expensive, but still relatively central location, and make it work with shared offices, telecommuting, etc. Only the paralegals and whoever answers the phones need to be in the office most days. The RC himself (I would say him or herself, but there aren't any hers occupying those offices) should be out riding the circuit, in my opinion, or else on the phone or at meetings with judges and the like, none of which requires one inch of full time office space.

Oh, and my second comment: Why weren't newspapers writing about this "obscure" state agency before the legislation creating it passed?