Guardian ad What?

Good night and good luck

2011-08-02T20:23:00.001-04:00

It has been a great pleasure (and sometimes a raucous thrill) writing this blog. As promised, though, as of today, August 2, 2011, Guardian ad What is going read-only. In its place, I'm introducing a new project: robertlatham.wordpress.com. I'll still cover the law, but now that I am "unleashed" (as one kind attorney put it), I suspect I might have a few more things to say.

Three readers, I hope you'll join us (me) there.

-robert

To my three readers

2011-07-11T20:09:00.000-04:00

I'm breaking radio silence with what I consider good news. After three and a half very rewarding years with the Florida Guardian ad Litem Program, I have taken a residency as a practitioner and lecturer at the University of Miami Law School's Children and Youth Law Clinic. I am very thankful to everyone who has supported me and helped me these past years and look forward to continuing and sharing their dedication and passion with new lawyers, students, and clients.

As for the blog, I'll probably continue it here for a little while longer. I hope to eventually transition it to a more academic setting.

Thanks for reading,
-robert

10 Things You Can Learn from D.G. v. DCF

2011-06-26T10:51:00.001-04:00

D.G. v. Department of Children and Families
--- So.3d ----, 2011 WL 2462847
Fla.App. 4 Dist.,2011.
June 22, 2011 (Approx. 7 pages)

You could teach a whole course on this case alone. Blog posts don’t lend themselves to lecturing, so instead I will present the lessons learned in a list. The internet loves a list.

Top 10 things You Can Learn from D.G. v. DCF

1. The Nexus Requirement is factually flawed

Note that this case is a second-time-around on D.O. v. S.M., 981 So.2d 11 (Fla. 4th DCA 2007), which granted the TPR on a victim child but not on the child’s sibling because there was no showing of nexus. The psychologist who evaluated the mother after the previous TPR trial found that she was beyond services for at least in part the same reason that the legislature said that egregious abuse of one child is sufficient to TPR on all children. The nexus requirement makes me shake my head.

2. Strike while irons are hot

I realize that the trial attorney was probably feeling gun shy after the huge reversal in D.O., but the subsequent evaluation of the mother said nothing could be done for her. Why didn’t they immediately refile? Probably because…

3. Futile + Recommended services = ?

Even though the psychologist said that nothing could be done to help the mother, he still recommended services. I’ve been in this situation—you want to scream. Instead, the proper response is to politely question the expert as to why services are being recommended: because everyone could benefit from them or because they would help this particular person be an effective parent?

4. Good visits do not destroy TPRs

Nobody likes going forward on a case where the parent religiously attends visits and gets good reports, even when that same parent is in complete non-compliance otherwise. That’s emotions, not law, talking. I hope to see this quote used in future cases: “[C]oloring pictures with a child does not show that the parent has developed the capability to care for that child.”

5. Statutory time frames do mean something

Prosecutors are also hesitant to bring cases where the parents are actively doing things, even if the parent squandered time before or if the things they’re doing don’t actually amount to much. It’s good to see the too-little-too-late doctrine being used in a non-extreme case. Employees get fired for just “looking busy” and parents under a case plan should too, if their child is otherwise in a stable and loving home.

6. You can get TPRd for poor judgment

Case plans have explicit tasks, but the whole point of them is to determine whether the parent can be trusted with a child again. Repeated acts exhibiting poor judgment (along with some expert testimony to support it) can and should provide grounds for TPR.

7. Divorcing the perp is not enough

This is kind of the inverse of #6. While it may show good judgment to do so depending on your motivations, just separating from the perpetrator is not sufficient to show you can safely parent.

8. What document controls: the case plan or the order of adjudication?

It’s often true that a case will come in for one thing, like DV, and then other issues will be discovered that require additional services, like substance abuse or mental health. By the time of the TPR, defense attorneys will point to the original order of adjudication referencing only DV (for example) and say that the circumstances have been remedied. D.G. seems to assume that is a valid argument without any analysis of it. I would strongly disagree with that assessment, since otherwise the whole process for amending case plans would be worthless. Also, substantial compliance is defined as “the circumstances which caused the creation of the case plan have been significantly remedied.” That seems clear enough to me.

9. Appeal everything!

The appellate counsels did not attack the MBI or LRM findings of the court. Considering the amount of subjectivity inherent in both of those, that seems like a huge strategic mistake.

10. Nobody wants to see you again

Though at this point I am only guessing, I would imagine that the Fourth had to take into account the fact that three years later their decision in D.O. was still having negative repercussions on the children. We’ve seen appellate courts reverse far stronger state cases than this one, so it leads me to believe: If D.G. is a mea culpa, it is a warranted one.

Conflating MBI and LRM (appellate review)

2011-06-26T09:34:00.001-04:00

J.C. v. K.K.
--- So.3d ----, 2011 WL 2462854
Fla.App. 4 Dist.,2011.
June 22, 2011 (Approx. 4 pages)

We can add J.C. v. K.K. to the list of cases that conflate Manifest Best Interests findings with Least Restrictive Means analysis. Here’s how the two should work: MBI is a list of psychosocial factors that are weighted uniquely in each case once a ground has been proven; LRM is a legal analysis of good faith and fairness that is owed a parent by the Department prior to termination of that parents’ rights. Unfortunately, the LRM formulation includes the words “reestablish the parent-child relationship,” which injects the idea of psychosocial factors into the equation of fairness. In this case, because the father had a limited relationship to begin with, the Fourth DCA says he was owed less due process with regards to LRM.

That isn’t good law when taken to its natural conclusions, because it implies that the good faith efforts to rehabilitate owed to a parent who had their child removed at birth is lower than those owed to a parent who had more time to form a stronger relationship. This question of relationships and capacity to improve is more properly part of the MBI analysis, where it can be weighed against the other interests of the child. The duty the Department owes a parent should remain an objective standard and not be contingent on any subjective weighing of interests or relationships—enough of that goes on as it is without writing it into the law.

Aside from that minor bump, the main holding of this case was that a trial court must make MBI findings with each TPR ruling, even when issuing a denial on other grounds. That sounds good to me.

Belated Appeals Update

2011-06-19T10:09:00.001-04:00

The OA on Wednesday went as well as it could have, considering both sides had filed entirely too many motions, supplementals, and responses, which incurred no small wrath from the Court.

The Third was not interested in the idea of extending DCF the right to a belated appeal. Judge Emas said, “[DCF], just think of the unintended consequences.” Judge Schwarz said, “I’m ready to dismiss everything right here and now.” And Judge Shepherd was no friendlier to the idea; in a previous OA that morning he stated something along the lines of, “Some issues are matters of first impression because they’re rare or new, but others are just arguments so ridiculous that no one would have ever reasonably tried to bring them before.”

Miranda Accounts for Age

2011-06-17T07:09:00.001-04:00

from washpost:

“It is beyond dispute that children will often feel bound to submit to police questioning when an adult in the same circumstances would feel free to leave,” Sotomayor said, adding that there was no reason “for police officers or courts to blind themselves to that commonsense reality.”
She was joined by the court’s consistent liberals — Justices Ruth Bader Ginsburg, Stephen G. Breyer and Elena Kagan — and by Justice Anthony M. Kennedy. Kennedy has been the author of the court’s most notable rulings that “children are different” — holding that minors may not be executed or sentenced to life imprisonment without the possibility of parole for crimes other than murder.

See J.D.B. v. North Carolina.

Kids in CT Will Have Counsel Come October

2011-06-16T21:27:00.001-04:00

via Civil Right to Counsel:

CT Legislature Clarifies RTC for Minors in Protective Proceedings
The Connecticut Legislature has passed a bill (HB6422) requiring that the court appoint a child-directed attorney in all child protection proceedings (as opposed to an attorney acting as both attorney and GAL), and specifies a separate GAL can only be appointed only upon request of the child's counsel where it becomes apparent that the child cannot act in his/her own best interests and where the child's wishes would cause harm to the child.

DCF Drug Screening for Welfare Is Stupid, Costly, and Patently Discriminatory

2011-06-16T07:23:00.001-04:00

So let me get this straight: It’s going to cost anywhere from $10 to $140 up front for someone to apply for welfare, which people do because they don’t have money. The higher cost is actually caused by having legal substances in your system that you have to justify to DCF. If for some reason you can’t justify them (not necessarily because they’re not justifiable) then you have to find someone who isn’t on meds to be your “protective payee.”

AND even legal meds can result in automatic referrals to the abuse hotline.

The article doesn’t even go into what administrative and judicial remedies (and costs!) you have if things are botched or who pays for those.

Is this the 1980s? This is pure poverty bashing. I join the bandwagon: make corporate CEOs and small business owners go through the same hoops before taking out loans or getting tax breaks. Let them have to disclose all prescription medications they’re taking and have a doctor justify whether they really need to be on them, and call in abuse reports on their kids. This sort of nonsense would quickly disappear.

Is CP Compliance Irrelevant in Abandonment TPRs?

2011-06-16T07:12:00.001-04:00

L.K. v. Department of Children And Families
--- So.3d ----, 2011 WL 2334877
Fla.App. 4 Dist.,2011.
June 15, 2011 (Approx. 1 page)

DCF sought to TPR a mother for abandonment only. She sought to admit evidence of her compliance with the case plan. The trial court ruled it was irrelevant. The 4th DCA held it goes to show her intent to assume custody of the child upon release from jail.

PRO TIP: Just about everything is relevant in a TPR trial.

TPR’ing Sexual Predators

2011-06-13T07:29:00.001-04:00

A.H. v. Department of Children and Families
--- So.3d ----, 2011 WL 2279021
Fla.App. 1 Dist.,2011.
June 10, 2011 (Approx. 2 pages)

Question: Can a court hearing a TPR petition designate someone as a sexual predator under 39.806(1)(d)2?

Answer: No.

Belated Appeals and DCF’s Rights to the Child

2011-06-12T13:36:00.001-04:00

On Wednesday I’ll be doing oral argument in the Florida 3rd DCA on the question of whether DCF has standing to file a belated appeal under In the Interest of E.H., 609 So.2d 1289 (Fla. 1992).

Here’s the setup: DCF missed the 30-day cutoff for filing its appeal by 10 days, and then brought a writ of habeas corpus for belated appeal. GALP is defending the order being appealed and, because it believes it to be in the child’s best interest for the trial court’s order to stand, has filed a motion to dismiss the appeal for lack of jurisdiction. DCF then filed a motion to strike the motion to dismiss, saying that the correct challenge to a belated appeal under E.H. is to file a direct appeal on the writ, not a motion to dismiss on the appeal the writ authorized.

Substantively, regarding DCF’s standing to get a belated appeal in the first place, DCF has taken the position that its role as custodian of a child who is pending adoption grants it rights and responsibilities equivalent to those that are constitutionally protected for parents. Therefore, they say, E.H. should be extended to the Department. GALP has taken the position that DCF’s responsibilities are purely statutory and the Department has no right to effective assistance of counsel, much less any constitutionally protected rights to the child. The child has a GAL or AAL to act on his or her behalf to determine if an action by the Department threatens the child’s interests.

There are lots of issues rolled up in this one, so it could definitely be a case to watch.

50-state Study on TPR Law (Law Review)

2011-06-11T13:11:00.001-04:00

State Law and the Termination of Parental Rights

49 FAMCR 364
Family Court Review

April, 2011 (Approx. 25 pages)

This paper presents the findings from a content analysis of stale laws authorizing the termination of parental rights. The analysis welded a taxonomy of termination criteria and it identified those criteria that were most widely adopted by the states. State termination criteria were compared to those listed in the Adoption and Safe Families Act (ASFA) of 1997. The comparison shows that state laws identify more types of termination criteria than are listed in ASFA. In addition, criteria related to neglect and “parental failure” were often ambiguous and lacked detail. The study identifies possible directions for research on state termination law.

One of the concluding questions of this piece is whether the number of TPR grounds has any affect on the number of TPRs filed and prosecuted. I would guess no, as I have been exclusively litigating TPR cases for over a year now and there are grounds I’ve never even touched. Future research would have to look at the constitutional/case law authorities that (probably) have far more limiting effects on what cases are brought than the statutory grounds.

AG Bondi admits mistakes made by her office contributed to child's death

2011-06-05T09:09:00.001-04:00

And I quote:

The bottom line: The Attorney General's Office became too wrapped up in narrow legal issues. Ezekiel's safety should have come before anything else. Legal mistakes could have been corrected later.

Link.

Disclosing Conflict by Child Welfare Psychiatrists

2011-05-27T07:11:00.001-04:00

I am a huge proponent of conflict disclosure requirements for doctors who work with our kids. Unfortunately, that has not yet caught on—largely in part because so few doctors already are willing to work with our kids.

A bit of warning: you can spot advocacy journalism when the article references itself, as in “Six days before this article came out so and so did something”. I’ve taken out the scare words from the clip below. Try to read the full article with the same levelness.

Dosed in juvie jail: Drug firms pay state-hired doctors.

Florida doesn't have disclosure laws
Doctors prescribed [] antipsychotic drugs for children in DJJ custody even before the drugs were [approved by the FDA, which according to most medical experts is not the sole arbiter of what is and isn’t safe].
Seroquel, for example, wasn't approved for kids until late 2009. Between mid-2006 and mid-2008, DJJ bought at least 217,563 tablets of Seroquel for children in the department's custody.
The state has no rules requiring drug companies to disclose payments to doctors. DJJ has no policy requiring contracted doctors to disclose conflicts of interest. In overhauling health care last year, Congress enacted a measure that requires all drug companies to disclose payments and gifts to doctors. However, that part of the law won't take effect until 2013.
…
Last Tuesday [] DJJ's chief medical director, Lisa Johnson, [issued] a [] memo to DJJ's contracted and state-employed doctors.
The note, among other things, cautioned psychiatrists against prescribing antipsychotics and other drugs for reasons that aren't approved by the federal government, except in extreme cases. It also reminded doctors that they aren't to use the drugs "as a means of punishment, discipline, coercion, restraint or retaliation."

On trials

2011-05-26T22:59:00.001-04:00

My intern sat in on a trial I did today. Afterwards he said, “Watching a trial is like being stuck in traffic. You start and stop, never seem to get anywhere, and then realize you’ve been listening to the same song for six hours.”

Children’s Campaign Veto Request

2011-05-25T07:30:00.001-04:00

via Justice Building Blog:

May 23, 2011

The Honorable Rick Scott
Governor, State of Florida
Plaza Level
400 South Monroe Street
Tallahassee, FL. 32399

Dear Governor Scott:

On behalf of the members and supporters of The Children’s Campaign, Florida’s most reliable and dependable child advocacy organization, I am registering our strong objection to SB 2112 regarding the detention of children in county jails and we urge you to veto it.

The history of The Children’s Campaign extends back to the time, longer than three decades ago, when children were detained regularly in county jails and lock-ups in Florida. The problems were numerous and often horrific and the State moved in a better child focused direction. We see no good outcomes extending from the policy change to be enacted by SB 2112. More to the point, we foresee many bad results, degrading the care and treatment of children along with the systemic complications emanating from this poorly thought out legislation.

The fact that the bill’s proponents are focused entirely on its purported cost savings and and not its impact on the care and treatment of children “in their best interest” should be a warning sign of serious enough gravity for you to act against it.

While cost is an important consideration, the treatment of children in a civilized society must extend beyond such narrowly focused factors.

For instance, the bill as written does not address consistency of treatment of children across the state. Are we to accept that children will be treated less well in one county than those in another? How is it in the best interest of children to be electronically monitored in a mod devoid of adult interaction as a cost saving option, thereby sacrificing opportunities for positive adult role-modeling at a time when the only adult interaction the child may be experiencing at home is one of abuse and neglect?

We do not agree that detention policy is only about holding a child securely until his or her appearance in front of the judge who decides whether to continue to detain or to release until the adjudicatory phase. Detention of children in Florida for example now extends an average of eleven days. It is an opportunity to infuse other helpful and supportive services as was proven in the Girls Advocacy Project.

Page Two – SB 2112 Veto Request Letter

The innovative GAP service assisted detained girls cope with their many difficulties and prepared them for a better life path. It also exposed histories of trauma and sexual abuse and mental health problems which would go undetected in the non-child focused county jail operations framed by SB 2112.

Further, we are horrified by the prospect that the county jail staff will not train by mandate in how to best treat and counsel children. Worse, the bill allows children to suffer the consequences of being shocked with powerful electronic devices and prodded with batons when non-coercive techniques would be best if employed by knowledgeable staff educated in child responsive strategies.

Recent legal decisions as far up as the United States Supreme Court have validated a child’s brain is not yet fully developed and sentencing of children must be different than that afforded to an adult. Yet, this bill if allowed to become law will subject children to an environment specifically architected and operated for adults and by adults with no background in child management.

Regarding legal issues, the Counties and the State of Florida should prepare themselves for the spate of lawsuits sure to come due to the mistreatment of children by untrained child care staff in county jails. Florida’s reputation will suffer along with its children who are subjected to these bad practices.

This bill was not vetted in public hearings. It was conceived and moved along during the frantic budget process and then agreed to by only two lawmakers in conference committee. The community has been denied the opportunity to speak directly to problems with its theory and implementation.

The framers of the legislation have not taken into account the havoc to be wrought when some counties “opt in” and others “opt out”. The implications for the operations of the Offices of the State Attorneys, Public Defenders and the Department of Juvenile Justice are profound. Children will be detained long distances away from legal counsel and their families, and, in some cases, even hundreds of miles as a result of the real-life operating scenarios to unfold if this bill is implemented. The extent of problems in disproportionate access, transportation, medical care and parental and family involvement have not yet fully come to light because the bill did not receive a proper airing during the legislative session.

With this bill the detention system for children in Florida will be neither state nor county. It will hover somewhere in between and children will experience the worst of both worlds.

We reiterate that the primary motivation for this bill by its sponsors and supporters is a move by the counties to reduce the amount of money they spend on children and, in this case, some of the most vulnerable among our youth population. Balancing county budgets to the detriment of vulnerable children is a bad practice in its own right and should be rejected.

As an alternative, we urge you to direct the Secretary of the Florida Department of Juvenile Justice, Wansley Walters, whose appointment and confirmation we supported, to address the current cost of detention to the counties, the past over-billing issues, and to develop a plan for resolving those issues in a manner that will not compromise the care of children by a system which is not uniform and is not child focused. This path will allow sufficient time to address the detention issue fully and transparently in the more appropriate substantive policy committees during the next session of the legislature.

SB 2112 should not go forward. It will make the lives of children worse, not better.

Page Three – SB 2112 Veto Request Letter

Sincerely,
Roy Miller

President
The Children’s Campaign

“Effectiveness of Florida DCF Parenting Test Passed by Dog Questioned”

2011-05-23T08:11:00.001-04:00

The headline is misleading: the dog was only given a certificate of completion for an online parenting class. There was no test, as far as I can tell. This is not to disparage canines, by the way, who quite frequently parent very well.

In Miami-Dade we use “evidence based” parenting classes, which means that the participants are given a pre- and post-test. The problem is that any reasonably intelligent person can score fine on the pre-test, and the post-test and class are rendered meaningless. Psycho-educational classes are only worthwhile to those who lack information. A multiple choice test on American history does not make you George Washington.

Florida 1st DCA Rejects Due Process Paternity Claims

2011-05-19T07:38:00.001-04:00

Slowinski v. Sweeney
--- So.3d ----, 2011 WL 1879198
Fla.App. 1 Dist.,2011.
May 18, 2011 (Approx. 1 page)

And I quote:

FN1. Cases do theorize an exception to this rule [that paternity cannot be challenged by a biological father where there is a man married to the mother] under the due process clause of the Florida Constitution. The exception would occur “only in those circumstances where there is a claim of a developed relationship between the putative father and the child[;] an allegation of a mere biological link to the child will not suffice.” G.F.C., 686 So.2d at 1387. However, this exception has largely been discussed in passing, and often in a denigrating manner. See Bellomo v. Gagliano, 815 So.2d at 722 (stating the contours of this “hypothetical right” have not been fully explored); G.F.C., 686 So.2d at 1387 (noting the exception only “parenthetically”); but see Fernandez v. McKenney, 776 So.2d 1118, 1121 (Fla. 5th DCA 2001) (Sharp, J., concurring) (concurring opinion describing and applying exception). Inasmuch as caselaw is unclear regarding whether the exception should even be recognized—and considering that its application would directly contradict the statutory provisions noted above—we reject this “hypothetical” exception as invalid and refuse to recognize it.

It’s in a footnote. Does that denigrate it?

This is especially interesting because lately the Department of Children and Families has taken the position that a Dependency court can do under Chapter 39 exactly what the 1st DCA says a court cannot do under Chapter 742: namely, make paternity determinations where there is a man married to the mother.

Child Abuse Theater (art)

2011-05-17T18:10:00.001-04:00

I’ve been slacking on my review of children and child abuse in art and popular culture lately. Luckily someone is doing it for me.

The Cannes 2011 Abuse Checklist, via feministfilm.tumblr.com and a hundred other places:

Dating a Drug Dealer Is Not a Dependency

2011-05-12T08:23:00.000-04:00

M.S. v. Department of Children and Families
--- So.3d ----, 2011 WL 1773469
Fla.App. 3 Dist.,2011.
May 11, 2011 (Approx. 1 page)

Florida dependency case law on drugs is a funny thing. It’s not a dependency per se to use drugs, unless you use drugs while pregnant and the child is born exposed (there is no equivalent per se harm for fathers). FSA 39.01(32)(g)1. For anything else you have to show harm to the child. FSA 39.01(32)(g)2. It is a dependency if you sell drugs in your home where the children live because drug selling is an inherently dangerous activity (wanton disregard?), J.O. v. DCF, 970 So.2d 395 (Fla 3d DCA 2007), and it’s a dependency even if you sell drugs in the shed outside your house, because presumably drug buyers will walk through your house to buy some drugs. J.C. v. DCF, 937 So.2d 184 (Fla. 3d DCA 2006). There is no case deciding what happens if you make the drug buyers walk around the house instead of through it. However, it is not a dependency if the child just frequents a place where drugs are sold. R.S. Sr. v. DCF, 16 So.3d 948 (2009). How that makes any sense, I do not know.

This case, M.S., basically boils down to whether it is a dependency to date a drug dealer. The Third DCA answered no.

SB 1902 Independent Living Bill on Senate Calendar Today

2011-05-04T07:26:00.001-04:00

CS/SB 1902 - Independent Living

GENERAL BILL by Children, Families, and Elder Affairs and Rich (CO-SPONSORS) Storms

Independent Living: Requires the court to retain jurisdiction over a child until the child is 21 years of age if the child elects to receive Foundations First Program services. Provides purpose and legislative intent with respect to the provision of services for older children who are in licensed care. Creates the College Bound Program for young adults who have completed high school and have been admitted to an eligible postsecondary institution. Requires the DCFS to contract with a national nonprofit organization to administer the Road-to-Independence Program, etc.

Effective Date: 10/01/2011

Last Event: 05/03/11 S Placed on Special Order Calendar, 05/04/11 on Tuesday, May 03, 2011 7:10 PM

Florida Legislative Update–April 26, 2011

2011-04-26T18:39:00.001-04:00

Here they are, the bills that have moved since our April 9th update.

CS/SB 100
Autism
Last Event: Thursday, April 14, 2011 - 04/14/11 S On Committee agenda-- Budget, 04/15/11, 1:30 pm, 412 Knott Building --Not Considered

CS/CS/HB 139
Child Care Facilities
Last Event: Friday, April 22, 2011 - Added to Second Reading Calendar

SB 352
Civil Citations/Minors
Last Event: Thursday, April 14, 2011 - 04/14/11 S On Committee agenda-- Budget, 04/15/11, 1:30 pm, 412 Knott Building --Not Considered

CS/CS/SB 364
Child Care Facilities
Last Event: Wednesday, April 13, 2011 - 04/13/11 S Now in Budget

SB 404
Transition-to-adulthood Services
Last Event: Thursday, April 21, 2011 - 04/21/11 S On Committee agenda-- Budget, 04/26/11, 9:45 am, 412 Knott Building --Not Considered

CS/CS/SB 488
Sexual Offenses
Last Event: Monday, April 18, 2011 - 04/18/11 S Original reference(s) removed: Health Regulation

CS/SB 504
Child Visitation
Last Event: Tuesday, April 26, 2011 - 04/26/11 S Placed on Calendar, on 2nd reading

CS/HB 621
Child Custody
Last Event: Thursday, April 21, 2011 - Added to Second Reading Calendar

CS/HB 739
Transition-to-Adulthood Services
Last Event: Monday, April 25, 2011 - Favorable with CS by Health & Human Services Committee

CS/CS/SB 846
Prevention of Child Exploitation
Last Event: Tuesday, April 26, 2011 - 04/26/11 S Placed on Calendar, on 2nd reading

CS/SB 1088
Criminal Conduct
Last Event: Wednesday, April 13, 2011 - 04/13/11 S Now in Judiciary

CS/CS/HB 1393
Sovereign Immunity
Last Event: Monday, April 25, 2011 - 1st Reading

CS/SB 1650
Child Custody
Last Event: Tuesday, April 26, 2011 - 04/26/11 S Placed on Calendar, on 2nd reading

CS/SB 1676
Sovereign Immunity
Last Event: Thursday, April 21, 2011 - 04/21/11 S On Committee agenda-- Budget, 04/26/11, 9:45 am, 412 Knott Building --Not Considered

CS/SB 1850
Juvenile Justice
Last Event: Wednesday, April 20, 2011 - 04/20/11 S Placed on Calendar, on 2nd reading

CS/SB 1902
Independent Living
Last Event: Thursday, April 21, 2011 - 04/21/11 S On Committee agenda-- Budget, 04/26/11, 9:45 am, 412 Knott Building --Not Considered

CS/CS/CS/SB 1972
Health and Human Services
Last Event: Wednesday, April 20, 2011 - 04/20/11 S Placed on Calendar, on 2nd reading

CS/SB 2062
Persons with Developmental Disabilities
Last Event: Monday, April 18, 2011 - 04/18/11 S Now in Budget

CS/CS/HB 4157
Juvenile Justice
Last Event: Monday, April 25, 2011 - Amendment 083037 filed

CS/HB 7199
Courts
Last Event: Wednesday, April 20, 2011 - 04/20/11 S In Messages

HB 7235
Health and Human Services
Last Event: Monday, April 25, 2011 - Favorable with CS by Health & Human Services Committee

HR 9049
Children's Grief Awareness Day
Last Event: Thursday, April 07, 2011 - Adopted by Publication

CBC Liability Limits Alive

2011-04-26T08:37:00.001-04:00

Word on the street is that Representative Harrell added language limiting CBC liability to her bill that previously limited pornography in APD homes (the latter part of which is probably not even constitutional). This all happened around 4:30 yesterday. It’s not posted to the HB 7235 bill info yet, but I guess that will happen today.

Gamesmanship and ICWA

2011-04-10T10:16:00.001-04:00

Nielson v. Ketchum
--- F.3d ----, 2011 WL 1238429
C.A.10 (Utah),2011.
April 05, 2011 (Approx. 5 pages

Was the Cherokee Nation trying to cheat ICWA by enacting 240-day temporary citizenship for any child born to a direct descendent of an original enrollee? The Tenth Circuit says yes.

See also, turtletalk resources on the case.

The Kids are Alright

2011-04-09T19:12:00.001-04:00

A feel good piece from CNN:

Stop anyone on the street who looks, say, older than 40, and ask whether teenagers are doing better or worse than a decade or two ago. Odds are she or he will say worse -- and be wrong.

…

• The proportion of high school students who smoke has declined, and so has the proportion of those who drink.
• Fewer underage teenagers are driving. Fewer teenagers drive while drinking or ride with drivers who are drinking. More students report wearing seatbelts and significantly fewer are involved in fatal car crashes.
• Firearm-related deaths have declined. So has the percentage of high school students who fight or carry a weapon.
• The percent of high school students who have seriously considered suicide has declined. So has the proportion of suicides.
One serious problem, according to the CDC, is that more teens are getting fatter. A lot fatter. But aside from that, they appear to be taking better care of themselves than the generation that preceded them.

“Declined” should not, however, be mistaken with “alright.”

Florida Legislative Update–April 9, 2011

2011-04-09T08:30:00.001-04:00

Here are the bills that have shown any movement since my last post on March 25.

HB 61
Code of Student Conduct
Last Event: Tuesday, April 05, 2011 - Added to Second Reading Calendar

CS/SB 100
Autism
Last Event: Friday, April 01, 2011 - 04/01/11 S Now in Budget -SJ 308

CS/HB 131
Homelessness
Last Event: Thursday, April 07, 2011 - Laid on Table under Rule 7.19(a)

CS/HB 145
Sexual Exploitation
Last Event: Tuesday, March 29, 2011 - Now in Civil Justice Subcommittee

CS/SB 226
Human Services
Last Event: Thursday, April 07, 2011 - 04/07/11 S On Committee agenda-- Criminal Justice, 04/12/11, 1:00 pm, 37 Senate Office Building

SB 228
Code of Student Conduct
Last Event: Tuesday, March 29, 2011 - Added to In Possession List

SB 352
Civil Citations/Minors
Last Event: Wednesday, April 06, 2011 - 04/06/11 S References corrected to Budget -SJ 407

CS/CS/SB 364
Child Care Facilities
Last Event: Thursday, April 07, 2011 - 04/07/11 S On Committee agenda-- Judiciary, 04/12/11, 1:00 pm, 110 Senate Office Building

SB 404
Transition-to-adulthood Services
Last Event: Thursday, April 07, 2011 - 04/07/11 S On Committee agenda-- Criminal Justice, 04/12/11, 1:00 pm, 37 Senate Office Building

CS/SB 488
Sexual Offenses
Last Event: Thursday, April 07, 2011 - 04/07/11 S On Committee agenda-- Judiciary, 04/12/11, 1:00 pm, 110 Senate Office Building

CS/SB 504
Child Visitation
Last Event: Thursday, April 07, 2011 - 04/07/11 S On Committee agenda-- Judiciary, 04/12/11, 1:00 pm, 110 Senate Office Building

CS/HB 595
Sexual Performance by a Child
Last Event: Thursday, April 07, 2011 - Now in Appropriations Committee

CS/SB 618
Juvenile Justice
Last Event: Wednesday, April 06, 2011 - Added to In Possession List

CS/HB 621
Child Custody
Last Event: Wednesday, April 06, 2011 - Now in Economic Affairs Committee

CS/HB 739
Transition-to-Adulthood Services
Last Event: Thursday, April 07, 2011 - Now in Appropriations Committee

CS/SB 846
Prevention of Child Exploitation
Last Event: Thursday, April 07, 2011 - 04/07/11 S On Committee agenda-- Judiciary, 04/12/11, 1:00 pm, 110 Senate Office Building

HB 1019
Foster Care Providers
Last Event: Monday, March 28, 2011 - Now in Health & Human Services Committee

CS/SB 1088
Criminal Conduct
Last Event: Thursday, April 07, 2011 - 04/07/11 S On Committee agenda-- Criminal Justice, 04/12/11, 1:00 pm, 37 Senate Office Building

CS/HB 1393
Sovereign Immunity
Last Event: Wednesday, April 06, 2011 - Now in Health & Human Services Committee

SB 1500
Foster Care Providers
Last Event: Thursday, April 07, 2011 - 04/07/11 S On Committee agenda-- Banking and Insurance, 04/12/11, 9:15 am, 412 Knott Building

CS/SB 1650
Child Custody
Last Event: Tuesday, April 05, 2011 - 04/05/11 S CS by Military Affairs, Space, and Domestic Security read 1st time -SJ 347

SB 1676
Sovereign Immunity
Last Event: Thursday, April 07, 2011 - 04/07/11 S On Committee agenda-- Judiciary, 04/12/11, 1:00 pm, 110 Senate Office Building

SB 1850
Juvenile Justice
Last Event: Tuesday, April 05, 2011 - 04/05/11 S Now in Budget -SJ 322

CS/SB 1902
Independent Living
Last Event: Wednesday, March 30, 2011 - 03/30/11 S CS by Children, Families, and Elder Affairs read 1st time -SJ 320

CS/CS/SB 1972
Health and Human Services
Last Event: Thursday, April 07, 2011 - 04/07/11 S Now in Budget

SB 2108
Welfare of Children
Last Event: Thursday, April 07, 2011 - Message sent to senate

SB 2146
Department of Children and Family Services
Last Event: Thursday, April 07, 2011 - Message sent to senate

CS/HB 4041
Department of Children and Family Services Employees
Last Event: Wednesday, April 06, 2011 - Added to Second Reading Calendar

CS/HB 4157
Juvenile Justice
Last Event: Monday, April 04, 2011 - 1st Reading

HB 5307
Department of Children and Family Services
Last Event: Thursday, April 07, 2011 - Laid on Table, refer to SB 2000

HB 5309
Domestic Violence
Last Event: Thursday, April 07, 2011 - In Messages

HB 5407
Juvenile Commitment
Last Event: Thursday, April 07, 2011 - Laid on Table, refer to SB 2114

HB 5409
Clerks of Court
Last Event: Thursday, April 07, 2011 - In Messages

SPB 7102
Welfare of Children
Last Event: Friday, April 01, 2011 - 04/01/11 S Submit as committee bill by Budget (SB 2108)

SPB 7118
Juvenile Justice
Last Event: Friday, April 01, 2011 - 04/01/11 S Submit as committee bill by Budget (SB 2114)

SPB 7176
Department of Children and Family Services
Last Event: Friday, April 01, 2011 - 04/01/11 S Submit as committee bill by Budget (SB 2146)

HB 7179
Vulnerable Children and Adults
Last Event: Wednesday, April 06, 2011 - Added to Second Reading Calendar

HB 7199
Supreme Court
Last Event: Thursday, April 07, 2011 - Favorable with CS by Judiciary Committee

HR 9049
Children's Grief Awareness Day
Last Event: Monday, April 04, 2011 - 1st Reading

SCOTUS Declines to Take Up Recantation TPR Case

2011-04-09T08:21:00.001-04:00

This took some detective work. It appears that the US Supreme Court recently denied cert on M.V. v. Florida Department of Children and Families, which is the same M.V. v. DCF that was denied by the Florida Supreme Court for lack of jurisdiction, 46 So.3d 47 (Fla. 2010), after being PCA’d by the Third DCA, 40 So.3d 36 (Fla. 3d DCA 2010).

What was the issue? Luckily the Third included a couple of cites. The first was DHRS v. M.B., 701 So.2d 1155 (Fla. 1997). In that case the Florida Supreme Court held that child hearsay can be admitted even if inconsistent with in-trial testimony of child. It also held that Green v. State, 667 So.2d 756 (Fla. 1995) has no application to dependency cases. Green holds that, as a matter of law, you cannot criminally convict using child hearsay statements when the child recants on the stand, unless you have corroborating evidence. Because the standard of proof and purpose of dependency proceedings are different, the Court would not say as a matter of law that you couldn’t find a dependency where the child had recanted.

The Third also cited T.V. v. DCF, 905 So.2d 945 (Fla. 3d DCA 2005), which sets the standard for sufficiency of the evidence in a TPR case.

Put the two cases together and you can deduce that M.V. was a TPR case where the child’s 90.803(23) child hearsay statements described the abuse but his or her on-the-stand testimony recanted. Since it’s M.V. v. DCF and not DCF v. M.V., the court apparently TPR’d the parent. You can also deduce that there was no corroborating evidence or else Green wouldn’t have been mentioned. What kinds of cases rarely have corroborating evidence? Sex abuse cases. How old is the child if a child hearsay motion was brought? Eleven or under at the time of the statements.

So: can you TPR someone based on child hearsay statements alone without corroborating evidence even when the child recants? Three courts have decided it doesn’t even warrant discussion: yes, you can.

HB 5307 Postponed

2011-04-08T06:54:00.001-04:00

The sneak bill HB 5307, which lowered the IL benefits age to 21, has been laid on the table (removed from consideration) after the third reading.

HB 5307
Department of Children and Family Services
Last Event: Thursday, April 07, 2011 - Laid on Table, refer to SB 2000

Sneak Bill Changes IL Age to 21

2011-04-05T20:13:00.001-04:00

It’s come to my attention that Florida HB 5307, which predominately shifts adult protective investigations over to law enforcement, also happens to incidentally reduce the age at which an IL kid stops receiving benefits to 21, because those two things have so much to do with each other.

Why would anyone think this is a good idea? Let’s do the math:

Reducing the age to 21 saves $8.2M.

According to the analysis, there are 1,100 kids in that group.

That’s $7,454 per kid ($0.007454M per kid), which isn’t that much to begin with and leaves them basically living in poverty as it is, even with a minimum wage job.

The current budget deficit is $3,620M.

=0.22651933701657458563%

The fact that ex-foster kids are being disowned in an effort to recoup less than one quarter of a percent of the deficit is shameful. It’s also shortsighted since this will only push the kids over to other government rolls without the specialized case management that the IL Program comes with.

To be continued…

Law reviewed: Queer Youth, Child Representation, Deportation and TPR, Kinship Care, and Incarcerated Parents

2011-04-03T19:34:00.001-04:00

I had my first leisurely day in a while, so I finally caught up on some reading.

19 CLMJGL 675
Columbia Journal of Gender and Law
“WE'VE HAD THREE OF THEM”: ADDRESSING THE INVISIBILITY OF LESBIAN, GAY, BISEXUAL AND GENDER NON-CONFORMING YOUTHS IN THE JUVENILE JUSTICE SYSTEM
2010 (Approx. 18 pages)

Two researchers were speaking to a high-ranking probation officer from a large city, trying to convince her to participate in a project on lesbian, gay, bisexual and questioning (“LGB”), and gender non-conforming youths. Her first response was, “I've worked in this system for *676 twenty-five years and in all of that time I think we've had three of [these types of youths].”

This quote perfectly captures a prevalent myth: the juvenile justice system detains only very few LGB and gender non-conforming youths. Juvenile justice professionals believe this myth because only a handful of LGB and gender non-conforming youths disclose their sexual orientations, act in ways that do not conform to gender norms, or have court cases linked to their sexual orientation, gender identity or gender expression. However, many LGB youths, youths who are questioning their sexual orientations or youths who have non-conforming gender identities enter the juvenile justice system unnoticed. The disproportionate incarceration of youths of color within the juvenile justice system further reinforces the invisibility of LGB and gender non-conforming youths. Many juvenile justice professionals assume that LGB and gender non-conforming youths come from middle class, white families, and therefore, juvenile justice jurisdictions detaining large numbers of youths of color do not serve LGB and gender non-conforming youths.

This Article shows that both assumptions are wrong. National survey data presented in this Article shows that fifteen percent of youths in *677 the juvenile justice system are LGB, questioning their sexual orientation, transgender or express their gender in non-conforming ways. Moreover, the data shows that equal proportions of white, African American and Latino youths are LGB and gender non-conforming.

19 TXJWL 25
Texas Journal of Women and the Law
TRANSGENDER FOSTER YOUTH: A FORCED IDENTITY
Fall 2009 (Approx. 31 pages)

There are currently very few explicit protections for transgender youth in foster care. Because federal and state law are largely silent on the issue, it is likely that many transgender foster youth suffer as Natasha did. This Article argues that minors in group foster homes cannot legally be forced to wear traditionally gender-conforming clothing or otherwise perform traditional gender roles, regardless of their biological sex. Although this Article focuses primarily on clothing and physical appearance, the arguments also apply to other aspects of gender expression, which may include walking, talking, choice of romantic partner, etc. Part I examines the importance of allowing adolescents to freely express their own gender identity and also explores relevant federal and state law. Part II argues that to force minors in group foster homes to wear traditionally gender-conforming clothing or otherwise perform traditional gender roles violates the right to free speech under the First Amendment, the Due Process Clause of the Fourteenth Amendment, and the Equal Protection Clause of the Fourteenth Amendment. The Article concludes by recommending federal and state legislation as well as state agency policies explicitly protecting a foster youth's freedom to express his or her own gender identity while living in a group home.

19 CLMJGL 773
Columbia Journal of Gender and Law
WHEN YOUR ATTORNEY IS YOUR ENEMY: PRELIMINARY THOUGHTS ON ENSURING EFFECTIVE REPRESENTATION FOR QUEER YOUTH
2010 (Approx. 29 pages)

Part I of this Article begins with a brief discussion of the bias and prejudice in the judicial and child welfare systems that affect queer youth. Then it provides an overview of the role continuum that allows attorneys representing children to provide less than traditional advocacy. The narratives in Part LB illustrate the effect an attorney can have on a queer child. Part II of this Article addresses four mechanisms by which a queer child harmed by an attorney who provides less than traditional advocacy can seek redress. Part II.A explains how children can use claims of ineffective assistance of counsel, Part II.B discusses the possibility of bringing a legal malpractice suit, and Parts II.C & D. review ethical claims, both judicial and professional, that might prove useful to queer children injured by their attorneys.

20 INICLR 175
Indiana International and Comparative Law Review
AGAINST THE DILUTION OF A CHILD'S VOICE IN COURT
2010 (Approx. 17 pages)

This Article first examines the currently existing American child attorney paradigms through the lens of international norms and the written ideals of the CRC treaty, arguing that without the child's right to be heard codified into American law, the United States is not consonant with the United Nations Convention on the Rights of the Child (the “CRC”), Article 12. The Article then examines the laws of New York State as an additional backdrop and also to propose forward-thinking and child rights-oriented statutes.

Ultimately, this article emphasizes the fundamental importance and essence of listening to our children's true voices in the courtroom. Until children can be fully heard, their voices remain absent, or at best diluted, from the very legal system intended to help them.

34 NYURLSC 595
New York University Review of Law and Social Change
“AIN'T I A PARENT?”: THE EXCLUSION OF KINSHIP CAREGIVERS FROM THE DEBATE OVER EXPANSIONS OF PARENTHOOD
2010 (Approx. 58 pages)

Kinship caregivers--a group disproportionately populated by persons of color, particularly black grandmothers--have historically assumed parental roles, often together with a legal parent. Yet even as kin have increasingly assumed substantial parental responsibilities over the past few decades, they continue to have limited opportunities to carry the title of legal parent. At the same time, in claims involving stepfamilies and same-sex partners of parents, and cases involving assisted reproductive technology (ART), family courts have expanded their definition of parenthood to recognize the rights of other caregivers, including those whose parental claims extend beyond the so-called “rule of two.” [FN2]The common element that these groups share is a conjugal tie with the legal parent. The differential treatment of kinship caregivers demonstrates that the concept of parenthood remains inextricably intertwined with the *596 concept of conjugality--whether through legal marriage, quasi-marriage, or the mere capacity to marry or engage in prescribed mating. By privileging conjugal ties, the current framing of the parenthood debate excludes nonconjugal actors, most notably relative or kinship caregivers, from consideration as legal co-parents and from the accompanying discourse around multiple parentage. This article explores parental claims both within and outside of the scope of conjugality. In doing so, it reveals that, while the discourse on expanded notions of parenthood remains marriage-centered, the underlying rationales for extending parental assignment within conjugal relationships apply with equal force to nonconjugal kinship caregiving. Ultimately, it aims to enlarge the space within the community of “legitimate” parents to include kinship caregivers.

60 DUKELJ 1459
Duke Law Journal
WHERE ARE MY CHILDREN . . . AND MY RIGHTS? PARENTAL RIGHTS TERMINATION AS A CONSEQUENCE OF DEPORTATION
March, 2011 (Approx. 45 pages)

The U.S. Supreme Court has set out a constitutional framework under which termination-of-parental-rights cases must be adjudicated in state courts. In all cases, this framework requires proof of parental unfitness by clear and convincing evidence before parental rights can be terminated, even when the parents in question are illegal immigrants. Despite this framework, in a rash of recently published cases, courts have terminated the parental rights of illegal immigrant parents without regard for these requirements. Those who work closely with immigrants fear that the published instances are merely the tip of the iceberg.

This Note aims to shed light on this problem by discussing instances of such termination and identifying reasons that may have led courts to terminate parental rights outside of the constitutional framework. After identifying two primary reasons--cultural bias against immigrants and prison conditions that render maintaining parent-child relationships difficult--this Note suggests possible legislative changes that may decrease the number of such terminations.

101 JCRLC 77
Journal of Criminal Law and Criminology
CHILDREN OF INCARCERATED PARENTS: THE CHILD'S CONSTITUTIONAL RIGHT TO THE FAMILY RELATIONSHIP
Winter 2011 (Approx. 40 pages)

This Article grapples with a series of key questions: What is the relevance, if any, of children of offenders in sentencing, prison locations, and conditions of confinement? To what extent and with what limitations or exceptions is there a societal interest in children maintaining a relationship with their convicted parents? If children have a right to be considered in sentencing and in visitation policies, what is the legal basis for that right? This Article focuses on minor children and their biological parents, legal guardians, or primary caregivers. The central goal of this Article is to reframe the problem of third party harm to children from current sentencing law and prison visitation policy through the lens of children's rights, rather than the traditional frame of prisoners' rights. Drawing on international law and practice, this Article puts forward a theory for the relevance of children to the sentencing process and development of visitation policy. It suggests that this relevance has a sound, if underdeveloped, legal basis grounded in children's First Amendment freedom of association and their due process liberty interests. *80 Today, however, minor dependent children are, as a matter of law and standard procedure, a non-factor in sentencing and statutory visitation guidelines. Even within the narrow sentencing guidelines in most jurisdictions, there is no formal mechanism for family status or dependent children to come to the attention of a judge. When individual prisons or jails offer child-friendly visiting facilities, the practice is regarded as a privilege, not a right.

Restoring Parental Rights

2011-03-26T08:04:00.001-04:00

From childlaw blog:

Every State has statutes providing for the termination of parental rights by a court. Once parental rights have been terminated, the child is legally free to be placed for adoption.
A new factsheet from the National Conference of State Legislatures (NCSL) provides an overview of laws in nine States that allow for the reinstatement of parental rights following termination of parental rights. If a permanent placement has not been achieved within a specific timeframe, a petition may be filed with the court requesting reinstatement of the parent’s rights. If the court determines that the parent is now able to provide a safe home for the child, the request may be granted.
The factsheet, Reinstatement of Parental Rights, includes States' information on when a petition for reinstatement may be filed, who may file a petition, and the specific findings required for a court to grant reinstatement of parental rights.
Related Item
Child Welfare Information Gateway offers Grounds for Involuntary Termination of Parental Rights, which includes State statutes on termination as well as reinstatement of parental rights.

It’s interesting to note that in all but two of the states that allow restoration, the petition is brought by the child. In Alaska, a parent who surrendered can petition to restore, and in Illinois the DCF can (i.e., “Just kidding, take your kid back please.”) In Florida, your remedy is to adopt your child back, which some but not many people have successfully done.

The Florida Guardian ad Litem Program is not a process

2011-03-26T07:58:00.001-04:00

Statewide Guardian Ad Litem Office v. Office of State Attorney Twentieth Judicial Circuit
--- So.3d ----, 2011 WL 923945
Fla.App. 2 Dist.,2011.
March 18, 2011 (Approx. 2 pages)

The Second DCA held that the court cannot order the GAL Program to get on certain cases when the Program has designated its resources towards other cases—separation of powers, etc.

I was happy to read this paragraph:

When this original proceeding was filed, the petitioner was described as the “Statewide Guardian ad Litem Program.” After reviewing the relevant statutes, this court was uncertain whether “the program” was actually a legal entity or merely a functional process described by statute. After seeking the positions of the parties, this court has concluded that the Statewide Guardian ad Litem Office is a legal entity created by the Legislature, and we have substituted that entity as the petitioner in the style of this opinion.

Happy because, while I’m supposed to advocate on behalf of an abstract notion, I’m very pleased to know that my employer is not one too. Well, not any more abstract than anyone else’s boss.

Congratulations GALP, or should I now say GALO?

Florida 2011 Session Bills Update

2011-03-25T16:48:00.001-04:00

It’s been a pretty hectic Spring Break here around GAW. Hope everyone has had at least some chance to sit under a palm tree this month. In a salute to holiday inspired laziness, here are the bills that have seen any action since the last update on March 11, completely without commentary or analysis. Out like a lamb.

HB 61
Code of Student Conduct
Last Event: Friday, March 25, 2011 - Added to PreK-12 Appropriations Subcommittee agenda

SB 100
Autism
Last Event: Thursday, March 24, 2011 - 03/24/11 S On Committee agenda-- Banking and Insurance, 03/29/11, 1:00 pm, 412 Knott Building

CS/HB 139
Child Care Facilities
Last Event: Friday, March 11, 2011 - Now in Civil Justice Subcommittee

HB 145
Sexual Exploitation
Last Event: Wednesday, March 23, 2011 - Favorable with CS by Health & Human Services Access Subcommittee

CS/SB 226
Human Services
Last Event: Thursday, March 24, 2011 - 03/24/11 S Now in Criminal Justice -SJ 270

SB 228
Code of Student Conduct
Last Event: Thursday, March 24, 2011 - 03/24/11 S Passed; YEAS 38 NAYS 0 -SJ 285

SB 238
Child Safety Devices in Motor Vehicles
Last Event: Wednesday, March 16, 2011 - 03/16/11 S Placed on Calendar, on 2nd reading -SJ 232

CS/SB 364
Child Care Facilities
Last Event: Thursday, March 24, 2011 - 03/24/11 S On Committee agenda-- Commerce and Tourism, 03/29/11, 1:00 pm, 401 Senate Office Building

SB 404
Transition-to-adulthood Services
Last Event: Wednesday, March 23, 2011 - 03/23/11 S On Committee agenda-- Children, Families, and Elder Affairs, 03/28/11, 3:15 pm, 401 Senate Office Building

SB 488
Sexual Offenses
Last Event: Wednesday, March 23, 2011 - 03/23/11 S On Committee agenda-- Criminal Justice, 03/28/11, 3:15 pm, 37 Senate Office Building

CS/SB 504
Child Visitation
Last Event: Thursday, March 24, 2011 - 03/24/11 S Now in Judiciary -SJ 271

CS/SB 618
Juvenile Justice
Last Event: Thursday, March 24, 2011 - 03/24/11 S Placed on Special Order Calendar, 03/29/11

HB 739
Transition-to-Adulthood Services
Last Event: Wednesday, March 16, 2011 - Now in Criminal Justice Subcommittee

SB 878
Child Welfare
Last Event: Wednesday, March 23, 2011 - 03/23/11 S On Committee agenda-- Children, Families, and Elder Affairs, 03/28/11, 3:15 pm, 401 Senate Office Building

HB 1019
Foster Care Providers
Last Event: Thursday, March 24, 2011 - Added to Health Care Appropriations Subcommittee agenda

CS/SB 1088
Criminal Conduct
Last Event: Thursday, March 24, 2011 - 03/24/11 S Now in Criminal Justice

HB 1233
Juvenile Justice
Last Event: Tuesday, March 22, 2011 - Now in Rulemaking & Regulation Subcommittee

HB 1393
Sovereign Immunity
Last Event: Monday, March 14, 2011 - Now in Civil Justice Subcommittee

SB 1500
Foster Care Providers
Last Event: Thursday, March 24, 2011 - 03/24/11 S On Committee agenda-- Banking and Insurance, 03/29/11, 1:00 pm, 412 Knott Building

SB 1650
Child Custody
Last Event: Friday, March 25, 2011 - 03/25/11 S On Committee agenda-- Military Affairs, Space, and Domestic Security, 03/30/11, 3:45 pm, 37 Senate Office Building

SB 1850
Juvenile Justice
Last Event: Wednesday, March 23, 2011 - 03/23/11 S On Committee agenda-- Criminal Justice, 03/28/11, 3:15 pm, 37 Senate Office Building

SB 1924
Sovereign Immunity
Last Event: Tuesday, March 22, 2011 - 03/22/11 S Introduced -SJ 246

SB 1972
Health and Human Services
Last Event: Wednesday, March 23, 2011 - 03/23/11 S On Committee agenda-- Health Regulation, 03/30/11, 8:00 am, 412 Knott Building

HB 4157
Department of Juvenile Justice
Last Event: Friday, March 25, 2011 - Added to Criminal Justice Subcommittee agenda

Florida 2011 Session Bills, redux

2011-03-11T18:57:00.001-05:00

I wrote a few months ago about the first session bills involving children and child welfare. Now that the session has started here are the ones I’m following so far; there are a lot of them. I might pull out a few later and do write-ups, but for now let me say one thing: JURY TRIALS IN TPR CASES WTF!?

SB 28
Relief/L.T., a Minor/DCFS
Last Event: Tuesday, March 08, 2011 - 03/08/11 S Introduced -SJ 14

HB 61
Code of Student Conduct
Last Event: Friday, March 11, 2011 - Added to K-20 Innovation Subcommittee agenda

SB 100
Autism
Last Event: Tuesday, March 08, 2011 - 03/08/11 S Introduced -SJ 17

HB 109
Public School Buses
Last Event: Tuesday, March 08, 2011 - 1st Reading

SR 114
Mothers
Last Event: Tuesday, November 23, 2010 - 11/23/10 S Filed

HB 115
Creation of the Department of Health and Human Services
Last Event: Tuesday, March 08, 2011 - 1st Reading

SB 122
Sudden Unexpected Infant Death
Last Event: Tuesday, March 08, 2011 - 03/08/11 S Introduced -SJ 18

HB 131
Homelessness
Last Event: Tuesday, March 08, 2011 - 1st Reading

CS/HB 139
Child Care Facilities
Last Event: Friday, March 11, 2011 - Now in Civil Justice Subcommittee

HB 145
Sexual Exploitation
Last Event: Tuesday, March 08, 2011 - 1st Reading

SB 148
Criminal Prosecution of Juveniles
Last Event: Tuesday, March 08, 2011 - 03/08/11 S Introduced -SJ 20

HB 151
Transition-to-Adulthood Services
Last Event: Tuesday, January 25, 2011 - Withdrawn prior to introduction

SB 206
Domestic Violence Against Family Pets
Last Event: Tuesday, March 08, 2011 - 03/08/11 S Introduced -SJ 22

SB 226
Human Services
Last Event: Tuesday, March 08, 2011 - 03/08/11 S Introduced -SJ 24

SB 228
Code of Student Conduct
Last Event: Thursday, March 10, 2011 - 03/10/11 S On Committee agenda-- Budget, 03/15/11, 3:15 pm, 412 Knott Building

SB 238
Child Safety Devices in Motor Vehicles
Last Event: Thursday, March 10, 2011 - 03/10/11 S On Committee agenda-- Budget, 03/15/11, 3:15 pm, 412 Knott Building

HB 245
Florida Kidcare Program
Last Event: Tuesday, March 08, 2011 - 1st Reading

SB 278
Employment of Children/Entertainment Industry
Last Event: Tuesday, March 08, 2011 - 03/08/11 S Introduced -SJ 28

SB 346
Prohibited Discrimination
Last Event: Tuesday, March 08, 2011 - 03/08/11 S Introduced -SJ 31

SB 348
Domestic Partnerships
Last Event: Tuesday, March 08, 2011 - 03/08/11 S Introduced -SJ 31

SB 352
Civil Citations/Minors
Last Event: Tuesday, March 08, 2011 - 03/08/11 S Introduced -SJ 32

CS/SB 364
Child Care Facilities
Last Event: Friday, March 11, 2011 - 03/11/11 S Now in Commerce and Tourism

SB 394
Department of Health
Last Event: Tuesday, March 08, 2011 - 03/08/11 S Withdrawn from further consideration

SB 404
Transition-to-adulthood Services
Last Event: Tuesday, March 08, 2011 - 03/08/11 S Introduced -SJ 35

CS/SB 406
Florida Kidcare Program
Last Event: Tuesday, March 08, 2011 - 03/08/11 S CS by Health Regulation read 1st time -SJ 110

HB 415
Abortion
Last Event: Tuesday, March 08, 2011 - 1st Reading

SB 482
Supervised Visitation and Exchange Monitoring
Last Event: Tuesday, March 08, 2011 - 03/08/11 S Introduced -SJ 41

SB 488
Sexual Offenses
Last Event: Tuesday, March 08, 2011 - 03/08/11 S Introduced -SJ 41

SB 504
Child Visitation
Last Event: Tuesday, March 08, 2011 - 03/08/11 S Introduced -SJ 42

HB 561
Sudden Unexpected Infant Death
Last Event: Tuesday, March 08, 2011 - 1st Reading

HB 587
Department of Health
Last Event: Tuesday, March 08, 2011 - 1st Reading

HB 595
Sexual Performance by a Child
Last Event: Tuesday, March 08, 2011 - 1st Reading

CS/SB 618
Juvenile Justice
Last Event: Friday, March 11, 2011 - 03/11/11 S On Committee agenda-- Budget, 03/15/11, 3:15 pm, 412 Knott Building

HB 621
Child Custody
Last Event: Tuesday, March 08, 2011 - 1st Reading

HB 655
Criminal Prosecution of Juveniles
Last Event: Tuesday, March 08, 2011 - 1st Reading

SB 656
Florida Kidcare Program
Last Event: Tuesday, March 08, 2011 - 03/08/11 S Introduced -SJ 52

HB 705
Criminal Conduct
Last Event: Tuesday, March 08, 2011 - 1st Reading

SB 718
Sexual Exploitation
Last Event: Tuesday, March 08, 2011 - 03/08/11 S Introduced -SJ 56

HB 721
Effects of Crimes
Last Event: Tuesday, March 08, 2011 - 1st Reading

HB 739
Transition-to-Adulthood Services
Last Event: Tuesday, March 08, 2011 - 1st Reading

HB 773
Termination of Parental Rights
Last Event: Tuesday, March 08, 2011 - 1st Reading

HB 795
Florida Kidcare Program
Last Event: Tuesday, March 08, 2011 - 1st Reading

SB 846
Prevention of Child Exploitation
Last Event: Tuesday, March 08, 2011 - 03/08/11 S Introduced -SJ 64

SB 878
Child Welfare
Last Event: Tuesday, March 08, 2011 - 03/08/11 S Introduced -SJ 66

HB 1019
Foster Care Providers
Last Event: Tuesday, March 08, 2011 - 1st Reading

SB 1050
Effects of Crimes
Last Event: Tuesday, March 08, 2011 - 03/08/11 S Introduced -SJ 76

SB 1088
Criminal Conduct
Last Event: Tuesday, March 08, 2011 - 03/08/11 S Introduced -SJ 78

HB 1233
Juvenile Justice
Last Event: Tuesday, March 08, 2011 - 1st Reading

HB 1393
Sovereign Immunity
Last Event: Tuesday, March 08, 2011 - 1st Reading

SB 1500
Foster Care Providers
Last Event: Wednesday, March 09, 2011 - 03/09/11 S Introduced -SJ 170

SB 1650
Child Custody
Last Event: Thursday, March 10, 2011 - 03/10/11 S Introduced -SJ 188

SB 1652
Termination of Parental Rights
Last Event: Thursday, March 10, 2011 - 03/10/11 S Introduced -SJ 188

SB 1676
Sovereign Immunity
Last Event: Thursday, March 10, 2011 - 03/10/11 S Introduced -SJ 189

SB 1850
Juvenile Justice
Last Event: Saturday, March 05, 2011 - 03/05/11 S Filed

SB 1924
Sovereign Immunity
Last Event: Saturday, March 05, 2011 - 03/05/11 S Filed

SB 1972
Health and Human Services
Last Event: Monday, March 07, 2011 - 03/07/11 S Filed

HB 4157
Department of Juvenile Justice
Last Event: Tuesday, March 08, 2011 - 1st Reading

No false reporting exception in sex abuse cases (evidence)

2011-03-07T07:12:00.001-05:00

Pantoja v. State
--- So.3d ----, 2011 WL 722374
Fla.,2011.
March 03, 2011 (Approx. 7 pages)

Evidence of prior false accusations of sex abuse is not admissible as character impeachment against the victim. False reporting may be admissible for other purposes, such as to show bias or motive if the circumstances are sufficiently similar.

Application to dependency: child sex abuse victims should not have to be put through the wringer about previous allegations, unless the court first makes some finding that the previous allegations are sufficiently similar enough to be admissible to show bias or motive. Use a motion in limine to get a ruling before the child is ever called.

“State steps in less and more kids die”–Miami Herald

2011-02-27T08:15:00.001-05:00

I’ve been waiting for this piece to come out. Let the pendulum swing.

The details of Nubia Barahona’s death are grisly: Soaked in toxic chemicals, decomposed and stuffed in a garbage bag, she was found rotting on the shoulder of the interstate on Valentines Day. Authorities believe she had been stashed in a septic tank for weeks before her adoptive father dug up her corpse.
Statistically, however, Nubia’s story is rather common: She is one of hundreds of Florida children who died of abuse or neglect during the last decade after child welfare authorities had performed at least one investigation into their welfare. Florida not only leads the United States in the number of such deaths, it dominates the nation.
Read more: http://www.miamiherald.com/2011/02/24/2087601/state-steps-in-less-and-more-kids.html#ixzz1FAGzrHii

DCF Posts Barahona Case Documents

2011-02-22T18:25:00.001-05:00

DCF has posted the Barahona case documents here. It includes law, press releases, and the public parts of the case file.

GALs Behaving Rightly

2011-02-20T16:03:00.001-05:00

Jorge and Carmen Barahona had custody of fraternal twin foster children for three years and were moving slowly toward adoption when they hit a formidable obstacle: a stubborn court-appointed guardian.

Read more: http://www.miamiherald.com/2011/02/19/2076037/victor-and-nubias-house-of-horrors.html#ixzz1EXBIGgHO

I’m maintaining radio silence on the Barahona child abuse case. However, this Miami Herald article shows the powerful role a GAL or other independent child advocate can play. I find absolutely no joy in the fact that, in this case, the GAL appears to have been right.

A California Open Courts Debate Op-ed

2011-02-10T17:53:00.001-05:00

I happen to live in one of the states where dependency courtrooms are open to the public, and I can tell you that we do practice with that in mind. You never know who is sitting in the gallery. To assuage the folks who say that children’s privacy is at risk I can also tell you that nobody is ever sitting in the gallery. The only time reporters come is when someone tips them off to come, and the general public is only ever there if on a school field trip or touring as the board of directors of some local service provider. Both groups aren’t really paying attention.

I’m clipping the entire op-ed because it’s kind of difficult to find on the page linked here.

Feb. 9

San Jose Mercury News: "Time to open up state's dependency courts"

The state budget crisis has made reforming government agencies almost impossible; any change that would cost extra, no matter how important, is off the table. That's what makes West Hollywood Assemblyman Mike Feuer's proposal to open the state's juvenile dependency courts to public scrutiny so promising: It would cost, essentially, nothing.

The proceedings in these courts - which last year considered the cases of more than 58,000 foster children and are responsible for deciding whether kids should be permanently taken from their parents - are now closed to the public. Only when a child dies in foster care does state law grant access to what went wrong and whether anything could have been done to prevent it.

Feuer's Assembly Bill 73 would help ensure that the rights of vulnerable children and their parents are protected. The Legislature should approve the bill, and Gov. Jerry Brown should sign it.

Three years ago, Mercury News reporter Karen de Sa documented the troubled state of this system. Her yearlong investigation found that overwhelmed, undertrained lawyers weren't properly representing their clients, that older children were too often excluded from proceedings affecting their lives, and that parents' and children's rights were routinely at risk.

She learned all this by persuading several judges to let her into their courtrooms if she concealed participants' identities. When she was done, those courtrooms, where the public's work is done, were once again closed.

After de Sa's series, the body overseeing California's courts recommended major reforms to improve service to families in this system, the majority of whom are poor. Some of the reforms were implemented, such as giving older children the option to participate in hearings. Others, like increasing staffing to reduce ridiculously large caseloads, have been derailed by the budget crisis.

AB 73 is supported by many judges who oversee dependency courtrooms. It would allow them to close sensitive cases, such as those involving abuse. (Most cases arise from neglect.) The hope is that openness will improve the system, because let's be honest: People are much less likely to cut corners when they know somebody's watching. Greater public awareness of the system is an important goal, too.

The union representing social workers says it opposes the bill because of worries about children's privacy. Since the law would allow a judge to close a courtroom if there's a reason, it's more likely that the union is concerned about scrutiny of its members' performance. In the 17 states that have made this change, there have been no reports of negative effects.

De Sa's reporting found that judges routinely took just minutes to rule on a child's fate; some lawyers never even met with their clients outside of court and never enlisted the help of experts. So we know this system is inadequate to the monumental task before it, and we know additional staffing isn't forthcoming. Opening up these courts to public view may be the best possible way to help end the dysfunction.

Florida Evidence Review

2011-02-09T21:37:00.001-05:00

Here are some evidence cases and their possible applications to dependency. There’s no new law in any of them, just interesting fact patterns—especially Cardenas, which someone had a lot of fun reciting the facts on. It’s worth a read.

Cardenas v. State
49 So.3d 322
Fla.App. 1 Dist.,2010.
December 03, 2010 (Approx. 3 pages)

Statements to the defendant by the victim are not hearsay when used to show the defendant’s state of mind or motive for committing the crime.

Example application to dependency: Statements that a child makes to a “failure to protect parent” about abuse wouldn’t be hearsay if offered to show the parent was on notice of the abuse. However, there is significant risk of unfair prejudice if the abuse is not also proved up separately, so the distinction collapses on itself.

Miranda v. State
--- So.3d ----, 2010 WL 5093148
Fla.App. 4 Dist.,2010.
December 15, 2010 (Approx. 1 page)

Bad child hearsay order. You need specific findings.

The application to dependency is pretty obvious. Make sure you get specific findings.

Neal v. State
50 So.3d 96
Fla.App. 4 Dist.,2010.
December 15, 2010 (Approx. 3 pages)

No general criminal behavior testimony.

I’ve never seen this used in dependency. I would imagine it would involve testimony by a doctor, psychologist, or case manager about the general behavior of parents in the dependency system or abusive parents. For example, a therapist testifying that it’s not uncommon for children to love the abuser. I’ve had cases where I’ve asked if other parents take the bus, not to show that this parent took the bus but to show that the bus was an option that this parent did not utilize. That might run afoul of this rule. The question should be “Was this parent able to take the bus? How do you know?”

DCF Secretary David Wilkins Gets a New Job: Reviewing RTI Denials

2011-02-08T07:22:00.001-05:00

Wade v. Florida Dept. of Children and Families
--- So.3d ----, 2011 WL 362412
Fla.App. 1 Dist.,2011.
February 07, 2011 (Approx. 2 pages)

And I quote:

Although the Department's rules and section 409.285(2) may contemplate the hearing officer making the final decision in other public assistance cases, section 409.1451(5)(e)2 specifically requires a procedure for challenging the Department's decision in RTI cases that includes an appeal to the secretary of the Department. Thus, by statute, the administrative process in RTI cases is not complete until the secretary issues his or her decision.

Additionally, section 409.1451(5)(e)2 expressly provides that it is the secretary's decision that is the final agency action subject to judicial review. To the extent that the Department rules purport to make the hearing officer's decision final agency action in RTI cases, the rules conflict with and must give way to the statute. See Willette v. Air Prods., 700 So.2d 397, 399 (Fla. 1st DCA 1997) (explaining that “a duly promulgated administrative rule, although presumptively valid until invalidated in a section 120.56 rule challenge ..., must give way in judicial proceedings to any contradictory statute that applies”) (internal citations and quotations omitted).

We agree with the Department that there is nothing in section 409 .1451(5)(e) that requires hearings under the RTI Program to be conducted in accordance with sections 120.569 and 120.57(1), Florida Statutes. And we see no reason why the “fair hearing” system could not be utilized in RTI cases. But section 409.1451(5)(e)2 clearly requires some type of review of the hearing officer's decision by the secretary of the Department, and it is the secretary's decision that is the final agency action subject to judicial review.

Shaken Baby Syndrome in the NYTimes

2011-02-06T21:20:00.001-05:00

The NYTimes has a whole article about the conflicting science of diagnosing Shaken Baby Syndrome. I’m not a doctor, so I’ll keep my opinions to myself. I’ll only note that I’ve seen cases where infants have ribs, legs, and arms broken in different stages of healing and we still can’t prove it was abuse because “why would such nice people do such a horrible thing?” The human mind often stops at “why?”, as though everything ever done was for a reason.

This is why some kids need attorneys

2011-02-05T08:09:00.000-05:00

R.F. v. Department of Children and Families, Guardian Ad Litem Program
--- So.3d ----, 2011 WL 222243
Fla.App. 4 Dist.,2011.
January 26, 2011 (Approx. 1 page)

The law of this case is ~~not much new. A child may be placed in a receiving state pending the ICPC if it’s in his or her best interests.~~ reportedly already causing tension among the ICPC offices and some states may even be refusing to do business with Florida. That needs to be confirmed.

If that weren’t interesting enough, notice the positions taken by each party:

R.F.'s guardian ad litem recommended that the court allow him to remain in New York during the ICPC review procedures. The guardian ad litem and the attorney ad litem believe that it is in R.F.'s best interest to remain with his uncle. Counsel for the Guardian Ad Litem Program agreed that placement with the uncle appears to be in the child's best interest, but, like DCF, argued that R.F. is in New York illegally.

…

DCF and the Guardian Ad Litem Program argue that there are no exceptions to the ICPC procedures, and strict compliance with the compact is required. They argue if the procedures were not complied with and the receiving state was unaware of the placement, there would be no way to guarantee the child's safety. According to respondents, “[m]aking an exception in this case would [be] contrary to this child's best interest as it would be contrary to the best interest of any child.”

Without the child having a legal advocate, the argument and appeal would not even have been made. This case is an example of how kids and youth have individual interests and rights that sometimes (often?) conflict with the policy considerations of the organizations tasked to act in their best interests. In those moments, at a minimum, it would seem independent legal representation is vital. [Edit: Or a GAL with some teeth.]

January 2011 -- Appellate Score Card

2011-02-01T07:18:00.001-05:00

It was a sleepy month for appeals. No surprise because of the holidays. The big news was definitely the “no new crimes” case plan task case. Also congrats to Judge Gross for a (more or less) successful permanent guardianship appeal and to the 4th DCA for not dragging a child back to Florida on a technicality when he was doing perfectly fine out of state.

Judge Marci Goodman	Santa Rosa County (1st DCA)	January 31, 2011	D.S v. L.S., DCF, GALP	PCA
Judge Gary Sweet	Martin County (4th DCA)	January 28, 2011	M.A. v. DCF, GALP	PCA
Judge William Webb	Pasco County (2nd DCA)	January 28, 2011	C.C. v. DCF, GALP	PCA
Judge Karen Miller	Palm Beach County (4th DCA)	January 26, 2011	R.F. v. DCF, GALP	GRANTING WRIT TO QUASH order to return child to Florida for non-technical compliance with ICPC
Judge Lisa Porter	Broward County (4th DCA)	January 24, 2011	H.L. v. DCF	PCA
Judge William Webb	Pinellas County (2nd DCA)	January 21, 2011	S.H. v. DCF, GALP	PCA
Judge Sandy Kautz	Citrus County (5th DCA)	January 20, 2011	D.S. v. DCF, GALP	PCA
Judge E. Vernon Douglas	Columbia County (1st DCA)	January 20, 2011	D.S. v. DCF, GAL	PCA
Judge Barbara McCarthy	Broward County (4th DCA)	January 18, 2011	K.D. v. DCF	PCA
Judge Anthony Johnson	Orange County (5th DCA)	January 14, 2011	L.B. v. DCF	PCA
Judge Robert Colton	Palm Beach County (4th DCA)	January 14, 2011	G.O. v. DCF, GAL	PCA
Judge Rex Barbas	Hillsborough County (2nd DCA)	January 14, 2011	M.N. v. DCF, GAL	REVERSED TPR, holding “no new crimes” case plan task is not acceptable task.
Judge Debra K. Behnke	Hillsborough County (2nd DCA)	January 14, 2011	C.G. v. DCF, GAL	PCA
Judge Raymond O. Gross	Pinellas County (2nd DCA)	January 12, 2011	C.H.C. v. DCF	AFFIRMED order placing child in permanent guardianship; REMANDED to determine contact for parent
Judge Tracy Sheehan	Hillsborough County (2nd DCA)	January 7, 2011	C.H. v. DCF, GAL	PCA
Judge Mary Day Coker	Alachua County (1st DCA)	January 6, 2011	D.D. v. DCF	PCA
Judge Marcia Caballero	Miami-Dade County (3rd DCA)	January 5, 2011	G.C. v. DCF, GAL	PCA

Huge Decision out of the Second DCA

2011-01-19T07:33:00.001-05:00

Yes, I’m aware a huge case plan decision came out of the Second this week. In case you missed it, it’s…

In re C.N.
--- So.3d ----, 2011 WL 116872
Fla.App. 2 Dist.,2011.
January 14, 2011 (Approx. 8 pages)

I’m still mulling it over.

Who is David Wilkins?

2011-01-19T07:28:00.001-05:00

Besides being the new Secretary of the Florida Department of Children and Families, we’ll have to wait and see. I believe this is Mr. Wilkins seen below at a sports coat convention. Welcome aboard, sir.

http://www.miamiherald.com/2011/01/18/2022560/new-dcf-chiefs-resume-mirrors.html

Real, Live Practice Babies (art & history)

2011-01-12T07:23:00.001-05:00

It goes like this…

Once upon a time, infants were quietly removed from orphanages and delivered to the home economics programs at elite U.S. colleges, where young women were eager to learn the science of mothering. These infants became “practice babies,” living in “practice apartments,” where a gaggle of young “practice mothers” took turns caring for them. After a year or two of such rearing, the babies would be returned to orphanages, where they apparently were in great demand; adoptive parents were eager to take home an infant that had been cared for with the latest “scientific” childcare methods.

Read on here.

First 2011 Session Bills

2011-01-09T16:25:00.001-05:00

Here are some of the first bills introduced in the 2011 regular session that are relevant to my interests. My classification system is somewhat arbitrary.

Child welfare specific

HB 145: Sexual Exploitation: Designates act "Florida Safe Harbor Act"; provides legislative intent & goals; provides for presumption that placement of child alleged to have been sexually exploited in short-term safe house is necessary; provides requirements for findings in shelter hearing relating to placement of allegedly sexually exploited child in safe house; requires assessment of certain children; provides for use of such assessments; provides requirements for safe houses receiving such children; requires annual report on safe-house placements; provides for operation of safe houses; provides for training for law enforcement officials likely to encounter sexually exploited children; revises prohibitions on prostitution & related acts; provides for increased civil penalty & disposition of proceeds; allows victim compensation for sexually exploited children; provides presumption against filing delinquency petition for certain prostitution-related offenses in certain circumstances.

SB 226: Human Services: Allows the national accreditation of human service providers to substitute for certain agency licensure and monitoring requirements. Requires a single lead agency to be responsible for monitoring human services delivery for designated populations. Requires agencies to provide an analysis of every new governmental mandate to an affected contractor before the mandate may be required or imposed, etc.

Domestic violence

SB 206: Domestic Violence Against Family Pets: Redefines the term "domestic violence" to include inflicting, or attempting to inflict, physical injury against an animal owned, possessed, leased, kept, or held by one family or household member by another family or household member, or placing a family or household member in fear of physical harm to an animal owned, possessed, leased, kept, or held by that family or household member, etc.

Claims and Relief

SB 28: Relief/L.T., a Minor/DCFS: Compensates L.T., a minor, by and through Vicki McSwain, the Permanent Custodian for L.T., for injuries and damages sustained as a result of the negligence of employees of the Department of Children and Family Services. Provides a limitation of the payment of attorney's fees, lobbying fees, costs, and other similar expenses relating to the claim, etc.

Administrative

HB 115: Creation of the Department of Health and Human Services: Creates Department of Health & Human Services (DHHS); provides for appointment of Secretary of Health & Human Services by Governor; provides guidelines for procurement of health services; establishes Central Office of Investigative Services & Office of Inspector General; directs Board of Governors to establish regional policy development & research exchange centers at specified state universities for certain purposes; repeals provisions relating to DCFS, AHCA, DOH, & related trust funds; provides for transfer of related functions & responsibilities to DHHS.

HB 131: Homelessness: Establishes homelessness prevention grant program; requires grant applicants to be ranked competitively & provides preference for certain applicants; provides eligibility requirements & grant limitations & restrictions; requires lead agencies for local homeless assistance continuums of care to track, monitor, & report on assisted families for specified period of time; provides opportunities for voluntary contributions to aid homeless & provides that such contributions are not income of revenue nature for purpose of applying certain service charges; limits percentage of funding that lead agencies may spend on administrative costs; provides that funding shall be appropriated as fixed capital outlay item; repeals provision relating to emergency assistance program for families with children that have lost shelter or face loss of shelter due to emergency.

HB 139: Child Care Facilities: Provides for certain household children to be included in calculations regarding capacity of licensed family day care homes & large family child care homes; provides conditions for supervision of household children on premises of family day care homes & large family child care homes; revises advertising requirements applicable to child care facilities; provides penalties; authorizes cause of action against unlicensed or unregistered individual if advertising requirements are not met; provides for award of attorney's fees & costs.

SB 364: Child Care Facilities: Provides for certain household children to be included in calculations regarding the capacity of licensed family day care homes and large family child care homes. Provides conditions for supervision of household children of operators of family day care homes and large family child care homes. Revises advertising requirements applicable to child care facilities. Provides penalties. Authorizes a cause of action against an unlicensed or unregistered individual if certain advertising requirements are not met, etc.

Regulating childhood

HB 61: Code of Student Conduct: Requires each district school board code of student conduct to include explanation of student responsibilities with regard to appropriate student dress; requires each district school board to adopt dress code policy that prohibits student from wearing clothing that exposes underwear or body parts in specified manner; provides disciplinary actions for violation of dress code; requires adherence to code of student conduct for participation in extracurricular activities.

SB 228: Code of Student Conduct: Requires the district school board to include in the code of student conduct adopted by the board an explanation of the responsibilities of each student with regard to appropriate dress and respect for self and others and the role that appropriate dress and respect for self and others has on an orderly learning environment, etc.

HB 109: Public School Buses: Provides for district school board policies that authorize commercial advertisements on school buses; provides policy requirements relating to reimbursement to school district, prohibited advertisements, & signage & equipment standards; requires school bus to be withdrawn from use under certain circumstances; provides indemnification from liability; provides for remittance & allocation of revenue.

SB 238: Child Safety Devices in Motor Vehicles: Provides child-restraint requirements for children ages 4 through 7 years of age who are less than a specified height. Provides certain exceptions. Redefines the term "motor vehicle" to exclude certain vehicles from such requirements. Provides a grace period.

SB 278: Employment of Children by the Entertainment Industry: Provides requirements for the employment of children in the entertainment industry. Provides responsibilities of employers and parents or legal guardians of such children. Requires a preauthorization certificate for each child. Provides duties of the Division of Regulation within the Department of Business and Professional Regulation. Provides certification requirements and duties of teachers and trainers of child performers, etc.

Juvenile justice

SB 148: Criminal Prosecution of Juveniles: Provides additional circumstances for the direct filing of charges against certain juveniles. Provides criteria for determining when a case against a juvenile should be recommended to the court to be transferred for criminal prosecution. Provides criteria for consideration of a child's request to an adult court to return a criminal case to the juvenile justice system.

SB 352: Civil Citations/Minors: Requires the expungement of the nonjudicial arrest record of a minor who successfully completes a civil citation program. Requires the Department of Law Enforcement to expunge the nonjudicial record. Sets forth the conditions that apply in order for the department to expunge the record. Authorizes the department to charge a processing fee.

Child health

SB 100: Autism: Requires that a physician refer a minor to an appropriate specialist for screening for autism spectrum disorder under certain circumstances. Requires that certain insurers and health maintenance organizations provide direct patient access to an appropriate specialist for screening for or evaluation or diagnosis of autism spectrum disorder, etc.

SB 122: Sudden Unexpected Infant Death: Creates the "Stillbirth and SUID Education and Awareness Act." Requires the State Surgeon General to implement a public health awareness and education campaign in order to provide information that is focused on decreasing the risk factors for sudden unexpected infant death and sudden unexplained death in childhood. Specifies the duties of the State Surgeon General related to maternal and child health programs. Requires the State Surgeon General to establish a task force, etc.

Resolutions

SR 114: Mothers: Expresses gratitude and affection to all mothers.

December 2010 Appellate Score Card

2011-01-06T07:34:00.001-05:00

December was a month of haste making waste. Four cases involved the improper closing of a case over the objection of some parent still working on their case plan. I blame the new Chapter 39 books. They really are terribly hard to open.

Judge Mindy Glazer	Miami-Dade County (3rd DCA)	December 22, 2010	M.V. v. DCF, GAL	PCA (Jimenez pro se.)
Judge Cindy Lederman	Miami-Dade County (3rd DCA)	December 22, 2010	L.S. v. DCF, GAL	PCA
Judge William Wright	Jackson County (1st DCA)	December 22, 2010	S.K. v. DCF, GAL	COE on bad permanent guardianship findings
Judge Anthony Johnson	Orange County (5th DCA)	December 21, 2010	A.L. v. DCF, GAL	REVERSED order TOS’ing with Father where Mother working on case plan
Judge Moses Baker	Palm Beach County (4th DCA)	December 20, 2010	A.F. v. DCF, GAL	PCA
Judge Ralph C. Stoddard	Hillsborough County (2nd DCA)	December 15, 2010	D.N. v. DCF	COE on bad permanent guardianship findings
Judge Tracy Sheehan	Hillsborough County (2nd DCA)	December 15, 2010	DCF, GALP, AAL v. S.H.	REVERSED Denial of TPR on showing of murder of sibling
Judge Tegan Slaton	Monroe County (3rd DCA)	December 15, 2010	M.M. v. DCF, GALP	COE on “Order on GAL’s Motion to Compel the Testimony of M.M.”
Judge Barbara McCarthy	Broward County (4th DCA)	December 15, 2010	T.S. v. GALP, DCF	PER CURIAM REVERSED, for failure to give notice prior to TOS
Judge Sue Robbins	Marion County (5th DCA)	December 13, 2010	R.P v. DCF, GAL	AFFIRMED, adopting reasoning of courts that allow challenge to sufficiency of the evidence without prior motion to dismiss; citing conflict
Judge Ross Goodman	Escambia County (1st DCA)	December 13, 2010	T.W. v. DCF, GAL	PCA
Judge Mary Day Coker	Alachua County (1st DCA)	December 10, 2010	R.J. v. DCF	PCA
Judge Curtis J. Neal	Hernando County (5th DCA)	December 8, 2010	G.P. v. DCF, GAL	PCA
Judge Jack Day	Pinellas County (2nd DCA)	December 8, 2010	S.B. v. DCF, GAL	PCA
Judge Sue Robbins	Marion County (5th DCA)	December 2, 2010	D.F. v. DCF, GAL	PCA

Consolidate DCF? Hello DCFPDHCAH

2011-01-05T18:31:00.001-05:00

That is, the Department of Children and Families and Persons with Disabilities and Health Care Administration and Health. State Rep. Janet Adkins has filed a bill to create that monster, which is almost exactly the unwieldy beast that was split into DCF, DOH, AHCA, and APD in the first place.

Bill text here.

Child Welfare Law Review Review

2011-01-02T09:16:00.001-05:00

Here are some recent law review notes/articles on child welfare issues.

79 GWLR 232
A VOICE FOR THE VOICELESS: A CHILD'S RIGHT TO LEGAL REPRESENTATION IN DEPENDENCY PROCEEDINGS
George Washington Law Review
November, 2010 (Approx. 24 pages)

This Note takes a moderate, hybrid approach that requires an attorney for all children in dependency proceedings, with the additional requirement that the attorney articulate the child's wishes. This middle ground allows the states to determine whether to require that the attorney advocate for the best interests or wishes of the child should a conflict arise between the expressed interests of the child and the child's “best interests,” and to determine whether secondary counsel needs to be appointed to represent the other position, or whether it *238 should be at the discretion of the judge.

42 LYUCHILJ 147
Loyola University Chicago Law Journal
THE PROPER GUARDIANS OF FOSTER CHILDREN'S EDUCATIONAL INTERESTS
Fall 2010 (Approx. 31 pages)

The United States Supreme Court has enumerated a constitutionally protected parental right to control the upbringing of one's child that includes the right to direct the child's education. The states, meanwhile, have differed in their interpretation and application of this principle when foster children's educational interests conflict with their biological parents' wishes. Specifically, although some states permit the judicial limitation of parental rights over children's education during foster care placement, others do not. This Article is among the first to consider the benefits and consequences of each approach in the context of parents' rights and children's best interests.

63 SMULR 1403
SMU Law Review
THE RIGHT TO COUNSEL IN PARENTAL-RIGHTS TERMINATION CASES: HOW A CLEAR AND CONSISTENT LEGAL STANDARD WOULD BETTER PROTECT INDIGENT FAMILIES
Fall 2010 (Approx. 41 pages)

On February 13, 2009, the Texas Supreme Court denied petition to hear Tracy Rhine's appeal regarding her due process and equal protection rights as an indigent mother denied counsel in a parental-rights termination case. The court properly denied petition due to the Texas Legislature's clear rule on the issue. Under the Texas Family Code, indigent persons have a mandatory right to counsel in state-initiated termination suits. Those same persons, however, lose that right when a private party brings the termination case; the right to counsel is then left to the discretion of the trial court. This disparity prompts the question: Should an individual's rights--rights that have constitutional implications--depend upon the entity or person that brings suit against the individual?

17 CDZJLG 81
Cardozo Journal of Law & Gender
WHAT WENT WRONG? WHY FAMILY PRESERVATION PROGRAMS FAILED TO ACHIEVE THEIR POTENTIAL
2010 (Approx. 28 pages)

In this Note, I attempt to describe how federal efforts to reform the child welfare system have failed to support families. Put simply, my analysis will demonstrate that family preservation did not fail child welfare reform. Rather, the federal government failed family preservation.

It’s Official: Alan Abramowitz receives GAL Program Executive Director Nod

2010-12-29T17:23:00.001-05:00

Tallahassee, FL - Governor Charlie Crist today (12-29) appointed Alan Abramowitz of Tallahassee as executive director of the Statewide Guardian Ad Litem Office, to succeed Theresa Flury, for a term beginning December 28, 2010, and ending December 8, 2013. Currently, he directs the statewide Family Safety Program Office within the Florida Department of Children and Families (DCF).

“With 15 years of experience in social service and juvenile justice, Alan has continually worked to improve the lives of children who depend on the child welfare system,” Governor Crist said. “He is an effective and caring advocate for the young people of Florida, and I am confident the Guardian Ad Litem Program will excel under his leadership.”

see Governor Crist Appoints Alan Abramowitz as Executive Director of the Statewide Guardian Ad Litem Office.

Bad TOS #4

2010-12-24T10:22:00.001-05:00

A.L.v. Department of Children and Families
--- So.3d ----, 2010 WL 5184730
Fla.App. 5 Dist.,2010.
December 21, 2010 (Approx. 2 pages)

Ok, this is ridiculous: Case number four involving an improvidently granted TOS, this time closing the case with a father when the mother was still working on her reunification case plan. There’s some discussion about what a “maintain and strengthen” case plan goal is (spoiler alert: it’s not a goal, despite what some unnamed person in the courtroom told the magistrate—I bet they’re thanking their lucky stars that they forgot to announce that day). Ultimately the whole thing gets kicked back to the trial court to make proper findings about the mother’s compliance which is a damn waste of everybody’s time.

PRO TIP: When trying to TOS over someone’s objection, GO SLOW.

Suggested New Years Resolution

2010-12-23T10:10:00.001-05:00

S.K. v. Florida Dept. of Children and Families
--- So.3d ----, 2010 WL 5175123
Fla.App. 1 Dist.,2010.
December 22, 2010 (Approx. 1 page)

This is the third one of these this month, so perhaps we need a reminder: permanent guardianships require findings. If there’s no agreement, then there has to be a hearing. No, a regular permanency hearing won’t suffice if it wasn’t also preceded by a motion to TOS and notice.

This year for New Years, I propose we make a legal resolution to never TOS a case over objection without a proper hearing. I put this in the “doable” category.

* Note this case also has some interesting dicta about visitation and case plans: if the case plan doesn’t specify a minimally required visitation schedule, how can you say someone is in violation of their case plan for not doing it? Usually visitation won’t be the only reason for finding someone in noncompliance with a case plan. But in this rare case, it was.

The Family as the Client

2010-12-18T11:21:00.001-05:00

From SSRN, via legal profession blog:

All in the Family: Towards a New Representational Model for Parents and Children

Abstract:
The presumption that parents act in their children’s interests governs both daily life and legal doctrine. This Article demonstrates that this presumption, while usually correct, is problematic when unquestioned because it masks any conflict between parents and children, and is at odds with the individualistic framework of the ethical rules governing attorneys. This harms families and puts attorneys at risk. This Article explores this representation problem in the previously largely ignored context of special education for children with disabilities. The Supreme Court, in Winkelman v. Parma City School District, recently established that parents and children each have substantive yet “intertwined” rights to a child’s appropriate education. Nonetheless, courts and attorneys continue to assume that parents speak for children, even in cases with a high risk of conflict.

To best serve families and protect attorneys, this Article proposes a novel reconception of representation in education cases. Family representation posits the family as the client, with the attorney owing duties to each member individually and as part of the group. A family representation framework brings four real-world benefits: (1) it recognizes the interconnected nature of the relationships and rights of parents and children; (2) it engages both parties in the process, particularly important for children who have previously been overlooked; (3) it is economical, increasing the number of represented parties but not the number of attorneys; and (4) it brings attorney practice into accord with ethical standards. This model has ramifications beyond the educational sphere as it could also be fruitfully applied in torts and benefits actions by a parent and child against the state or other third party. Ultimately, reconceiving the attorney’s role as representing the family while respecting the voices of each member harmonizes the competing principles of individual autonomy and family unity to the benefit of parents, children and attorneys.

Murder is Different, Sometimes

2010-12-16T06:54:00.001-05:00

I knew the Second DCA’s strict nexus rule couldn’t withstand the force of a really nasty case. There’s lots to be said, but no time for thoughtfulness this morning. Just read the opinion.

In re E.R.
--- So.3d ----, 2010 WL 5094227
Fla.App. 2 Dist.,2010.
December 15, 2010 (Approx. 9 pages)

The word murder appears 33 times in this opinion.

The word death appears 35 times.

Egregious: 27.

Horrific: 1.

The Public Health Effects of SSI and Psychotropic Meds on Kids

2010-12-15T07:27:00.001-05:00

This is relevant to my interests:

In New England, the numbers [of child SSI recipients diagnosed with mental health problems are] even higher — 63 percent of children qualify for SSI based on such mental disabilities. That is the highest percentage for any region in the country. And here and across the nation, the SSI trend line is up, with children under 5 the fastest-growing group. Once diagnosed, these children often bring in close to half their family’s income.

“This has become the new welfare,’’ said MIT economics professor David Autor. “This is a very valuable resource to families, but you’re providing incentives for them to produce a diagnosis for their children to be part of this program, and there’s also incentives to medicate them. This is a substantial public policy problem.’

Read it here.

Tuft’s Psychotropic Medication and Foster Youth Report

2010-12-09T07:28:00.001-05:00

The Tufts CTSI multi-state study, begun in 2009, concluded that while oversight of psychotropic medication is a high priority of the state child welfare agencies, there is also great variability among the state policies and practices governing such oversight. The Study Report calls for a national approach and resources for medication oversight for youth in foster care. A more detailed national look at which state policies and practices are the most effective for improving the mental health of these youth is also needed. Without a national approach, crossing a state border could mean the difference between a youth in foster care being over or under treated with medications. The report also stresses the need for youth-serving organizations and state agencies to work together, and for more informed decision-making and appropriate medication monitoring for youth in foster care.

The study report is here.

It’s a great overview of how different states are implementing and thinking about psychotropic medication usage with foster youth. As with most policy studies, though, it’s heavy on attitudinal surveys and systems comparison and light on outcomes analysis.

The Protective Effect of Family Acceptance for Gay Teens (news)

2010-12-06T18:40:00.001-05:00

And I quote, again…

While the acceptance of gay, lesbian and bisexual teens continues to grow — albeit gradually — study after study consistently shows that many of these adolescents still experience considerable rejection from the very source they crave acceptance most: their families.

Now a study reveals for the first time the impact that a supportive family can have on the physical and mental health of gay, lesbian and bisexual children. Researchers led by Caitlin Ryan, director of the Family Acceptance Project, a research, education and policy initiative designed to better understand the role that sexual orientation has on family dynamics, found that teens from families who supported their sexual orientation were less likely to abuse drugs, experience depression or attempt suicide than those in less accepting families. The teens in the more supportive environments also self-reported higher levels of self-esteem and self-worth.
Read more: http://healthland.time.com/2010/12/06/the-protective-effect-of-family-acceptance-for-gay-teens/#ixzz17NUFimKG

Facebooking for child abuse (news)

2010-12-06T18:13:00.001-05:00

And I quote:

Why is Rocko, that one-dimensional wallaby from the '90s cartoon series, now a friend of mine on Facebook? And Charlie Brown? And Chip 'n' Dale?

Other Facebook users -- if they haven't jumped on the bandwagon already -- will likely see a similar trend in the next few days.
A new campaign is asking users to change their profile picture to a photo of a favorite childhood cartoon to raise awareness of child abuse.
link.

Not that I ever really stopped watching cartoons, but here’s one I knew and loved. That’s me, bottom right.

Texas Updates Psychotropic Medication Guide

2010-12-03T08:00:00.001-05:00

From my alma mater:

University of Texas at Austin College of Pharmacy Helps Ensure Proper Use of Psychotropic Medications for Children in Foster Care

The University of Texas at Austin College of Pharmacy and the Texas Department of Family and Protective Services (DFPS) have released revised and updated parameters to ensure the proper use of psychiatric medications for children in foster care.
The "December 2010 Psychotropic Medication Utilization Parameters for Foster Children" is a resource for physicians and clinicians who care for foster children diagnosed with mental health disorders such as attention-deficit hyperactivity disorder, disruptive behavioral disorders, major depressive disorder, bipolar disorder, anxiety disorder and others.
It provides recommendations for the appropriate use of medications and includes eight criteria indicating need for further review of the child's clinical status.

link to article, link to document

Appellate Score Card – November 2010

2010-12-01T21:07:00.001-05:00

Nothing too earth-shattering this month. There were three COEs, which says more about the attorneys handling the cases than the judges. I’ve had appellate attorneys confess error on me before and it feels like crap. I learned something every time, though—mostly to stay in better touch with my appellate team before I go doing things that are bat-shit crazy. Live and learn.

Judge Elizabeth Krier	Collier County (2nd DCA)	November 24, 2010	T.C. v. DCF, GAL	DENIED CERT.
Judge Elizabeth Krier	Collier County (2nd DCA)	November 24, 2010	D.R. v. DCF, GAL	DENIED CERT.
Judge James Fensom	Bay County (1st DCA)	November 24, 2010	J.T. v. DCF, GAL	Confession of Error on dependency
Judge Donald Grincewicz	Orange County (5th DCA)	November 23, 2010	L.T. v. DCF	REVERSED order denying dependency petition brought by uncle seeking special immigrant juvenile status for child in his custody
Judge James Fensom	Bay County (1st DCA)	November 22, 2010	J.S. v. DCF, GAL	Confession of Error on dependency
---	Supreme Court	November 19, 2010	K.D. v. DCF	REVIEW DENIED of DCF v. K.D., 45 So.2d 46 (Fla. 5th DCA 2010) (involving RTI).
Judge Irene Sullivan	Pinellas County (2nd DCA)	November 19, 2010	T.W. v. DCF, GAL	DENIED CERT.
Judge James Fensom	Bay County (1st DCA)	November 19, 2010	V.M. v. DCF, GAL	PCA
Judge William Webb	Pasco County (2nd DCA)	November 17, 2010	S.W. v. DCF	PCA
Judge John Radabaugh	Highlands County (2nd DCA)	November 17, 2010	B.A. v. DCF, GAL	PCA
Judge Tracy Sheehan	Hillsborough County (2nd DCA)	November 17, 2010	R.G. v. DCF, GAL	PCA
Judge Debra Behnke	Hillsborough County (2nd DCA)	November 17, 2010	DCF v. J.G., et al., GAL	DENIED CERT for failure to show irreparable harm where trial court vacated consent plea of parent
Judge Moses Baker, Jr.	Palm Beach County (4th DCA)	November 16, 2010	T.B. v. DCF, GAL	PCA
Judge Charles Prather	Osceola County (5th DCA)	November 12, 2010	C.C.-C v. DCF, GAL	PCA
Judge John Radabaugh	Highlands County (2nd DCA)	November 10, 2010	B.A. v. DCF, GAL	PCA
Judge Scott Brownell	Pinellas County (2nd DCA)	November 10, 2010	H.P. v. DCF, GAL	PCA
Judge William Webb	Pasco County (2nd DCA)	November 10, 2010	V.S. v. DCF, GAL	Confession of Error on order suspending visitation without clear and convincing evidence
Judge James Seals	Lee County (2nd DCA)	November 5, 2010	J.C. v. DCF, GAL	PCA
Judge William Webb	Pasco County (2nd DCA)	November 5, 2010	C.E. v. DCF, GAL	DENIED CERT
Acting Judge Sonny Scaff	Madison County (1st DCA)	November 3, 2010	L.H. v. DCF, GAL	PCA
Judge Lisa Porter	Broward County (4th DCA)	November 3, 2010	N.C. v. DCF, GAL	PCA, citing N.S. v. DCF, 36 So.3d 776 (Fla. 3d DCA 2010).
Judge Baker	Palm Beach County (4th DCA)	November 3, 2010	R.I. v. DCF	AFFIRMED denial of motion to require DCF to pay fee for trust account
Judge Tracy Sheehan	Hillsborough County (2nd DCA)	November 1, 2010	K.D. v. DCF	PCA

The Guardian ad Litem Program gets a Blog

2010-11-30T20:49:00.001-05:00

Actually it’s had a blog since October or so, but now it’s posting from the FUTURE! *

See: http://blog.guardianadlitem.org/ **

** I am not affiliated with their blog in any way. I do, however, welcome the addition of a new kid on the block. <3

QIC ChildRep Update

2010-11-29T21:19:00.001-05:00

Speaking of QIC ChildRep, if you are at all interested in child advocacy you should be following their work on thoroughly studying child representation models and their effects on outcomes. I hope they take one thing to heart, which was stated by the focus group of judges: don’t build us a Cadillac. That is, come up with something that can be implemented in our pathetically underfunded real world.

Study Suggests Something About Child Representation

2010-11-29T20:59:00.001-05:00

The Juvenile Law Center dropped this study in my inbox today. It was subject lined with “Study shows lack of effective legal representation harms children.” I was very excited to read it because I have been waiting on a solid study linking representation and good outcomes.

Unfortunately, this isn’t that study. The title of the study (as opposed to the email introducing the study) is actually “Assessing the Quality of Child Advocacy in Dependency Proceedings in Pennsylvania.” It was a standard survey of attorneys and social workers in Pennsylvania, of which only 99 responded, focusing on the practices of those individuals and not outcomes for children. In critique, it doesn’t discuss the overall population, the sampling methodology, or the representativeness of the sample. The best inference we can make from it is that there are 99 people in Pennsylvania who are not doing their jobs very well. Maybe the others were too busy to respond.

To be fair, the report does cite to other studies done on the issue, but as discussed on this blog before, none of those studies adequately answer the question of what effect different representation models, as opposed to a myriad of other variables, have on outcomes for children in child welfare.

With all that said, I have much respect for JLC and the people who took the time and effort to conduct any research on the subject of child representation in the first place. And, based on my own experience I agree completely with their conclusions: public child advocates are under-resourced, private child advocates are undertrained, and there should be clear standards, reasonable caseload caps, and an effective accountability system for appointed counsel of all stripes. I hope very much that four years from now the QIC-ChildRep project can shed some light where theoretical cogitation has proven somewhat dim.

Happy National Adoption Day

2010-11-19T08:09:00.001-05:00

Oh look: Adoption cards, adoption cards, adoption cards, and adoption cards.

It’s Official

2010-11-10T18:08:00.001-05:00

The nominees for Guardian ad Litem Program Executive Director are:

Alan Abramowitz (DCF)
Daniel Dawson (Judge), and
Chuck Orchowski (GAL)

Congrats to everyone who interviewed and the nominees.

While You’re Waiting for them to Officially Announce the Executive Director Selections…

2010-11-09T18:39:00.001-05:00

You can watch this.

(not a hint.)

Wherein I Answer Questions from the Public

2010-11-07T08:05:00.001-05:00

It’s been since June that I did a public Q&A session, so let’s get to it. All questions are from the search terms that led people to this blog.

About GALs

How do I become a paid guardian ad litem? If you live in Florida, you can apply if there is an opening: http://www.guardianadlitem.org/careers_main.asp.

Are Florida guardian ad litems [sic] given too much power? This is much debated. The Florida GAL Program is given party status. This is different from some states where the individual GAL is given party status, and other states where the GAL is an arm/expert witness of the court. Whether you think GALs have too much power is a product of how you view the child welfare system on whole, and can’t be answered in a vacuum. So: maybe.

Can a guardian ad litem in Florida adopt? Sure, if they meet the same criteria as anyone else.

Can gays be guardians ad litem in Florida? Yep, as long as they do the same background check and training as anyone else.

What is the guardian ad litem’s role in adoption? In Florida the GAL can petition the court to change the pre-adoptive placement, and can challenge the Department’s lack of consent as unreasonable.

Can guardians ad litem testify to hearsay? Not in Florida. There is no Florida exception to the hearsay rule for guardians ad litem, even concerning their conversations with the children whose interests they represent.

What do guardians ad litem look for in the state of Florida? You can consult the GAL Training Manual, which is right there on their website.

What is the difference between DCF and the guardian ad litem? They’re two different offices. They often work together, but they frequently disagree.

Talk to your lawyer

What’s the best thing to say to a guardian ad litem? Talk to your lawyer about that.

How do I deal with an unfair guardian ad litem? That’s tricky. Consult an attorney.

Can a court not issue a reunification? Yes, but it depends on the facts. Consult an attorney.

How can you stop a TPR? Lots of ways. First, don’t abuse, abandon, or neglect your children. If you do and are offered a case plan, do all your services in a cooperative and prompt manner. If you do your services, learn something from them and show a change in your behaviors (people are watching). In the meantime, keep as good and close a relationship with your kids as you can, no matter where they are placed or how inconvenient it is to you. Those are the basics. For specifics on your case, consult an attorney.

I need to fire my guardian ad litem. What form do I need? Talk to your attorney. If you’re a kid and don’t have an attorney, talk to the judge.

Is a guardian ad litem a good idea? Sometimes. Talk to a lawyer.

What are the due process rights of parents to cross examine a guardian ad litem? In most if not all jurisdictions, you have some right to cross examine the GAL. It’s tricky when the GAL is functioning as a Lawyer-GAL, because you can’t usually cross examine lawyers on cases. Consult your own lawyer about how things are done in your jurisdiction.

About the system

What are the parents’ medical consent rights for a child adjudicated dependent? More or less the same, except that the Department can go to the judge for consent if you refuse. See section 39.407.

I have a permanent guardianship. Does DCF close their case? In Florida, the Department’s case closes, but the court retains jurisdiction in case you or the parents need to come back to modify the guardianship order in any way.

What happens when DCF changes their goal to adoption? More than likely they’re about to file a TPR petition. See the question above on how to fight a TPR.

What is a motion for reunification? A request to the court to allow the parents to have custody of the children again. Consult an attorney about what the legal standards are.

What is the Keep Children Safe Act? Probably unconstitutional, but in practice really useful.

That’s not a question

My son is adjudicated dependent in Florida. Really sorry to hear that; good luck. See the question about how to fight a TPR.

The parents took off with the kids after they were adjudicated dependent. That’s not good.

I have no idea

Is Holly Benson gay? How should I know?

Is Holly Benson married? This is not Holly Benson ad what. I don’t know.

Can my daughter be appointed a guardian ad litem in England? I have no clue.

Can parents dismiss a guardian ad litem in Georgia? Couldn’t tell you.

Compare and contrast the role of guardians ad litem in termination of parental rights proceedings. I’m not doing your family law final for you.

Do you have any guardian ad litem clipart? What?

Happy Three Year Anniversary to Me

2010-11-05T08:08:00.001-04:00

Three years ago, I put everything I owned in my car and drove to South Florida. I rented an apartment over the phone on the way, and slept the first three nights on an air mattress that spontaneously deflated itself around 3:30am. I owned a suit that didn’t fit and my shoes were uncomfortable. My dad bought me a GPS as a graduation present, because I never knew where I was going. Except for now owning a bed, not much has really changed. Happy anniversary to me.

What I Would Ask the Executive Director Candidates

2010-11-03T22:43:00.001-04:00

I had already been thinking about the Guardian ad Litem Program Executive Director candidates by the time I saw the Florida Children’s First open letter. I thought they put together a good wish list, but it wasn’t the list I would have come up with as a current employee of the Program. While it made sense for them to write to the selection committee, the questions I had were more for the candidates themselves—what I would ask if I were interviewing them to be my boss.

I hope it’s been apparent over the years of writing this blog that I not only love the law of child welfare (lawyers can say that sort of thing and mean it), but I also have a tremendous amount of love and respect for the Guardian ad Litem Program and the people who work at it. In two days it will be my three year anniversary at the Program. During that time I have seen what caring and dedicated people can do when working together toward common goals. I am very proud to have been a part of it.

But, as the old timers remind me, the Guardian Program 20 years ago was not the same as the Guardian Program today. And 20 years from now I hope that some old timer can point to all the ways it has grown and changed again. I see constant signs of that growth now. As the child welfare system matures, becomes more sophisticated and more legalized, the Guardian Program is reshaping the way it approaches the daunting job of advocacy it’s been tasked but not funded to do. The next executive director will have the opportunity to continue that growth and plot the direction of its progress. My only hope is that the selection committee chooses candidates who come in with some positive and modern vision of what the Guardian Program can be and the skill and experience sufficient to make that vision some reality.

So, below are my questions if I were on the selection committee. They’re not the only questions I would ask (you can’t have an interview without asking why someone wants to work there, or what they bring that’s special), but they are important to help me know where a candidate intends on taking the Program and whether I would want to join along.

-robert

(1) When I first interviewed to work at the GAL Program, the first question asked of me by Joni Goodman in Miami was this: What does the GAL Program do? At the time the question seemed aimed to weed out people who apply to jobs blindly; however, I now know the question to be much more important. So, my first question for the candidates would be that same first question posed to me:

What is the role of the Guardian ad Litem Program in the Florida child welfare system; and, looking forward, what do you envision that role to be?

(2) Children in the child welfare system present with a constellation of needs beyond the core concerns of safety, placement, visitation, and basic therapeutic services. Those needs require advocacy in educational rights, advanced mental health and developmental services, public benefits, and fair housing, just to name a few.

Does the Guardian ad Litem Program have a role in advocating for these extended needs?

How do you achieve meaningful advocacy in these highly technical areas using volunteers?

Taking all advocacy needs into account, do the Program’s significant cuts in staff size over the past 3-5 years require prioritization of advocacy goals? If so, what do you see as the Guardian ad Litem Program’s top advocacy priorities and how would you allocate resources to meet those priorities?

(3) Funding for employees at the Guardian Program is derived from a patchwork of sources, including the state, county, and numerous grants and support organizations. Over the past years the Guardian ad Litem Program has minimized funding cuts to the extent possible through both legislative lobbying and grassroots drives. These efforts, however, necessarily divert resources that could be used for our core mission of advocating for the best interests of children.

What experience do you have securing and maintaining funding for an organization the size of the Guardian Program?

Regardless of experience, what strategies would you employ to secure the financial stability of the Program or reorganize the Program to best utilize its resources?

(4) It is now common knowledge that the GAL Program has been a party in two gay adoption cases. In neither case, however, did the Program take a legal position on the constitutionality of the gay adoption ban and instead limited its legal advocacy only to stating that the guardian believed the adoption to be in the child’s best interest.

Do you view this as a conflict with the Program’s mission to advocate for the best interests of the children it represents?

How would your administration reconcile cases where the best interests determination of the guardian ad litem on a case conflicted with the political position of the Program?

(5) Despite the Guardian Program’s position as an advocacy organization, by rough estimates the Guardian Program’s litigation budget (not including attorneys’ salaries) is less than 1% of its overall operating budget. This fact significantly limits opportunities for legal advocacy at the trial level. Additionally, the general knowledge of this fact creates the often unfair perception of GAL Program attorneys as essentially ineffectual.

What, in your view, is the role and appropriate level of legal advocacy in the work of the Guardian Program?

Florida’s Children First Open Letter to GAL Executive Director Search Committee

2010-11-03T19:20:00.002-04:00

The email:

From: "Christina Spudeas" [email redacted]
Date: Wed, 3 Nov 2010 18:03:15 -0400
To: [GAL Search Committee emails redacted]
Subject: GAL Search Committee
Dear GAL Search Committee Members:
Attached you will find letters that have been written to each of you from Florida’s Children First. We recognize that you are in the process of interviewing candidates for the very important position of Director of the GAL Program, and we wanted to write to you to offer some of our ideas on what we consider to be key factors that you might want to consider when you are conducting your interviews. Hard copies of the letters have also been mailed to you.
We thank you in advance for taking on this challenge and we have faith that you will make the best recommendation based on the needs of the child welfare system, the GAL Program and the children it serves.
Sincerely,
Christina L. Spudeas
www.floridaschildrenfirst.org

The letter:

Letter to Guardian Ad Litem Search Committee

For those too technologically advanced to read a real letter, I will extract the four things FCF would like to see in a future head of GALP:

Commitment to transparency and accountability – including measuring effectiveness.
Experience in successfully leading substantial organizational change, both cultural and structural.
Independence from allegiance to factions within the organization and entities outside the organization.
Willingness to examine the role of the office in the context of the current circumstances of the child welfare system and to work with all other participants and stakeholders to maximize the efficacy of the program.

Pretty good list.

And Then There Were Eight (Executive Director Candidates)

2010-11-02T20:36:00.001-04:00

I reported earlier that seven candidates would be interviewed for the Guardian ad Litem Program Executive Director nominations. I must have been wrong, because the number being passed around now is eight. And, since their names have been announced officially through email, here they are. The information included below is all publicly accessible via a quick google search. If anything is incorrect, please let me know.

Alan Abramowitz (Tallahassee, DCF)

Florida Bar admitted 1989.

Daniel Dawson (Orlando Judge)

Florida Bar admitted 1979.
Notable in the media for presiding over the Rifqa Bary Case.

Karla Grimsley (GAL Program)

Ocala Circuit and Regional Director

Jim Kallinger (Chief Child Advocate in the Governor’s Office)

Former Director for Development, Christian Coalition of Florida.
Former state representative. Sponsored the following relevant bills: Parental Notification of Abortion on a Minor (2004), Parental Rights Constitutional Amendment (2004), Child Care Personnel Training (2004), Protection of Victims of Sexual Battery and Lewd or Lascivious Offenses (2004), Women’s Health Awareness Day (2004), Developmental Services and Mental Health (2004), Sexual Battery Time Limitations (2003), Care for Persons with Disabilities (2003), Legal representation for dependent children (2003), Child Custody Jurisdiction (2002), Declaration of Independency/Schools (2002), Youth Appreciation Week (2002)

Robin Landry (Nevada DCFS)

MSW, LCSW
Barragan v. Landry, 361 Fed.Appx. 849, 2010 WL 65010 (C.A.9 (Nev.), Jan. 8, 2010) (granting Landry qualified immunity); Barrangan v. Landry, Not Reported in F.Supp.2d, 2008 WL 873347 (D.Nev., Mar. 27, 2008) (finding Landry to have acted objectively reasonably in removing children from facility). However, the opinion refers to a state tort claim jury trial that came out the other way, and therefore needs to be explored.

Michael Lee (Tallahassee, CLS Managing Attorney)

Florida Bar admitted 2003

Chuck Orchowski (GAL Program, State Director for Operations)
Elizabeth White

I only know names, and there are at least two potential Elizabeth Whites in Florida who could be candidates. One is a criminal attorney in Jacksonville, and the other is the chief compliance officer at Shands.

Only three of these folks will have their names sent to the governor. Who will it be? Who will the governor even be? There is a rumor that the interviews will be public via phone conference, so stay tuned.

Catching up on Evidence Cases

2010-10-31T10:04:00.001-04:00

I’m catching up on evidence cases too…

Delinquency judge crosses the neutrality line by asking defendant “So, did you have cocaine on you?” R.O. v. State, --- So.3d ----, 2010 WL 4103320 (Fla. 3rd DCA 2010).
Psychological evaluations for purposes other than treatment or that explicitly say they’re not confidential are not protected by privilege. Delaurentos v. Peguero, --- So.3d ----, 2010 WL 4103518 (Fla. 3rd DCA 2010).
Lay witnesses cannot base their opinions on hearsay. James Crystal Licenses, LLC v. Inifinity Radio Inc., 43 So.3d 68 (Fla. 4th DCA 2010).
How to lay a foundation for GPS tracking data as a business record. (Hint: you need the GPS guy.) Ruise v. State, 43 So.3d 885 (Fla. 1st DCA 2010).
How not to lay the foundation for bank records or summaries of evidence. (Hint: you need the bank guy.) McKown v. State, --- So.3d ----, 2010 WL 4226262 (Fla. 4th DCA 2010).

Catching up on Federal Child Welfare Cases

2010-10-31T09:36:00.001-04:00

I’ve been behind on the federal cases. Nothing too exciting, except for the CWA case out of the Ninth.

Circuit

Section 1983 suit by foster parents based on a Child Welfare Act claim for payments to meet costs. California State Foster Parents Ass’n v. Wagner, --- F.3d ----, 2010 WL 4227866 (C.A.9 Cal. 2010) (holding that the CWA creates a federal right to payment enforceable through s. 1983).

District

Lawsuit by child against social services for placing in her home a sexually reactive child who allegedly assaulted her. Kuyper v. Board of County Com’rs of Weld County, 2010 WL 4038831 (D. Colo. 2010) (denial of motion to preclude deposition of 7-year-old plaintiff for psychological harm).
Section 1983 suit by grandmother alleging the state unconstitutionally interfered with her relationship with her grandchild. Rees v. Office of Children and Youth, 2010 WL 3906311, --- F.Supp.2d ---- (W.D. Pa. 2010) (finding no constitutional right to association for non-custodial grandparent)
Karen Giever’s Tampa lawsuit against AHCA, First Health, HKI, and DCF regarding mental health services for foster kids. Smith v. Rainey, 2010 WL 4118096 (M.D. Fla. 2010) (slip copy) (granting motion to dismiss in part, dismissing first amended complaint with leave to file second amended complaint, stating “[S]hotgun pleadings wreak havoc on the judicial system.”).
Former foster child’s jailhouse pro se s. 1983 claim against state for placing him in an abusive foster home. Cosgrove v. Kansas Dept. of Social and Rehabilitative (sic) Services, --- F.Supp.2d ----, 2010 WL 39773987 (D. Kan. 2010) (all claims dismissed).
Mother’s lawsuit for removal of children from home based on allegedly false allegations of medical neglect. Smith v. Delaware, --- F.Supp.2d ---- (D.Del. 2010) (summary judgment granted in part, denied in part)

Parity, Equity, and Section 39.507(7)

2010-10-30T08:31:00.001-04:00

C.R. v. Department of Children and Family Services
--- So.3d ----, 2010 WL 4226711
Fla.App. 3 Dist.,2010.
October 27, 2010 (Approx. 2 pages)

To begin to make sense of this case, you should know the background. Over the past few years CLS and DCF under Mary Cagle and George Sheldon have been moving toward a more family-centered practice. This has been generally considered a positive development and certainly no one here is complaining. As part of that family-centered approach, CLS adopted a mantra of “We don’t charge parents. We bring petitions to adjudicate children dependent.” So questions like “Is the father charged or uncharged?” would be met in court with testy responses like “We don’t charge parents. There are no allegations in the dependency petition concerning this father.” Person One would then respond, “So he’s uncharged.”

Somewhere in all of that came revisions to section 39.507(7) requiring there to be only one adjudication of dependency for each child. This led to a second wave of semantic shifting along the lines of “Is the child adjudicated dependent as to the mother?” CLS responds: “Children aren’t adjudicated as to parents. There are findings in the adjudicatory order implicating the mother.” Inquisitor responds: “So yes.” (Of course, the change in language doesn’t make complete sense, because it is the parent who will have the adjudication blemishing their record, not the child. And there are some legal precedents that rely on the concept of the “as to” adjudication, such as the 39.806(1)(e) cases that say a child must be adjudicated as to a particular parent to TPR them for failure to comply with the case plan.)

In some courtrooms, it also led to two procedures: petitions for adjudication of dependency and motions for supplemental findings, with differing forms and rules for whatever parent came through the door second. The parity between the parents was further thrown off by P.S. v. DCF, 4 So.3d 719 (2009), which says:

It is significant to observe that while a child can be found dependent if he or she is “at substantial risk of imminent abuse, abandonment, or neglect,” section 39.507(7)(b) only requires a trial judge, who has already adjudicated a child to be dependent, to determine whether each parent has actually abused, abandoned or neglected the child. Thus, in this case, the primary purpose of the evidentiary hearing should have been to determine if the father had actually abused or neglected R.S. and B.S.-not whether the children were at substantial risk of imminent abuse or neglect.

Assuming this isn’t dicta, I imagine it would play out as follows: Parent 1 has schizophrenia and there is proof of prospective neglect. The child is adjudicated dependent based upon those facts. Parent 2 is later found and also has schizophrenia with proof of prospective neglect. However, you cannot make supplemental findings on that parent and the parent is rendered non-offending by procedural hiccup. Presumably the second parent would make a motion for reunification and then what? You pray the home study comes out negative. This will likely be the next 507(7) case.

So now for the question presented in this case: if Parent 1 gets a withhold of adjudication, what are your options for the late-arriving Parent 2? Just to make it more realistic, let’s assume also that Parent 1 got a withhold because she had some redeeming qualities and Parent 2 failed to engendered any such feelings of goodwill (DV victim and perp, for example). Do you vacate Parent 1’s withhold to avoid benefitting Parent 2, or preserve Parent 1’s withhold despite the unsavoriness of Parent 2?

Your answer is affected by whether you view the adjudication as adhering to the child or to the parent. If the adjudication adheres to the child, then there either is or isn’t an adjudication. The withhold binds the parents together. Both DCF and GAL seem to have taken a similar position, and the trial court vacated the withhold. The Third DCA said there’s no mechanism to vacate it and restored it. But what to do with Parent 2? The Third says enter the supplemental findings order against him without a withhold. Just because it’s called “supplemental findings” does not mean it has to be stapled to a fully entered adjudicatory order or match the withhold status of the original order. Equity (if not parity) is restored by allowing the court to treat the parents as individuals and not lashing their rights together or conditioning their rights on the order they came into court. The “as to” adjudication is reborn.

Appellate Score Card – October 2010

2010-10-30T06:48:00.001-04:00

What October lacked in quantity, it sure made up for in appellate awesomeness. Judge Sampedro-Iglesia in Miami is the clear winner this month for getting the first ever PCA on a gay adoption. Congrats. And since we got through a month without anyone improperly TOS’ing or entering a permanent guardianship, I’d say everybody won.

Judge Porter	Broward County (4th DCA)	October 29, 2010	D.W. v. DCF, GAL	REVERSED and remanded for new trial on concession of error for admitting hearsay by one parent against the other parent
Judge Sampedro-Iglesia	Miami-Dade County (3rd DCA)	October 27, 2010	DCF v. E.L.A, GAL	PCA gay adoption, citing In re XXG & NRG
Judge Sarduy	Miami-Dade County (3rd DCA)	October 27, 2010	C.R. v. DCF, GAL	REVERSED vacation of withhold, REMANDED with instructions to enter w/hold as to mother, supplemental findings as to father
Judge Geiger	St. Lucie County (4th DCA)	October 27, 2010	A.B.E. v. DCF, GAL	TPR AFFIRMED
Judge Grincewicz	Orange County (5th DCA)	October 26, 2010	B.D. v. DCF, GAL	REVERSED default for failure to allow parent to appear by phone or grant reasonable continuance where parent trying to appear
from Bay County, Judge Fensom?	Supreme Court	October 21, 2010	T.A.T. v. DCF	DISMISSED for lack of jurisdiction
Judge Sampedro-Iglesia	Miami-Dade County	October 20, 2010	C.R. v. DCF, GAL	REVERSED dependency for DV where testimony was that parents had separated
Judge John Galluzzo	Seminole County (5th DCA)	October 19, 2010	D.P. v. DCF, GAL	PCA, citing B.B. v. DCF, 13 So.3d 183 (Fla. 5th DCA 2009) (availability of relative placement does not preclude TPR)
Judge Webb	Pasco County (2nd DCA)	October 15, 2010	Z.G. v. DCF, GAL	CERT DENIED for untimely filing
Judge Margaret Waller	Osceola County (5th DCA)	October 14, 2010	M.D. v. DCF, GAL	PCA
Judge Seals	Lee County (2nd DCA)	October 13, 2010	S.W.F. v. DCF, GALP	PCA
Judge Essrig	Hillsborough County (2nd DCA)	October 13, 2010	J.S. v. DCF; V.S. v. DCF	PCA
Judge Karlan	Miami-Dade County (3rd DCA)	October 13, 2010	F.Z. v. DCF	PCA
Judge Slaton	Monroe County (3rd DCA)	October 13, 2010	GALP v. O.R., DCF	CERT GRANTED, order requiring pleadings translated into Spanish quashed
Judge Douglas	Columbia County (1st DCA)	October 12, 2010	T.K. v. DCF	PCA
Judge Davis	Duval County (1st DCA)	October 11, 2010	T.M. v. DCF	PCA
Judge Sue Robbins	Marion County (5th DCA)	October 6, 2010	K.R. v. DCF, GAL	PCA
Judge Seals	Lee County (2nd DCA)	October 6, 2010	J.M. v. DCF	PCA
Judge Brownell	Manatee County (2nd DCA)	October 6, 2010	D.W. v. DCF	PCA
---	--- (1st DCA)	October 6, 2010	J.A.C. v. Risen	CERT GRANTED and ORDER QUASHED awarding attorney’s fees for counsel appointed to father who never appeared in TPR proceedings
Judge Sjostrom	Leon County (1st DCA)	October 6, 2010	T.H. v. DCF	PCA
Judge Crawford	Brevard County (5th DCA)	October 6, 2010	DCF v. K.D.	GRANTING appellee’s motion for clarification and certifying question of whether “foster care” includes non-relative, court-approved guardians
Judge Kauiz	Citrus County(5th DCA)	October 6, 2010	T.K. v. DCF, R.T. v. DCF	COE, remand for new trial before new judge
Judge Kenneth Lester	Seminole County (5th DCA)	October 4, 2010	U.U. v. DCF	PCA
Judge Kroll	Palm Beach County (4th DCA)	October 1, 2010	J.S. v. DCF	PCA

Alternate Reality: ACLU Press Release if McCollum Appealed

2010-10-28T19:40:00.001-04:00

I know it’s standard practice to create press releases for foreseeable events, but it’s not usually standard practice to make public both press releases for an event with binary outcomes. I was totally War of the Worlds’ed on this one, like Bill McCollum had reached out from the appellate grave and found some way to kill goodness and puppies.

Nope, just a filing mistake.

(screenshot from http://www.aclufl.org/news_events/?action=viewRelease&emailAlertID=3870 at 7:33pm, October 28, 2010)

Alenier Adoption Affirmed!

2010-10-27T19:51:00.001-04:00

Lady and gentleman who read this humble blog, I would like to congratulate for their good blessing, commend for their perseverance, and give a huge internet hug to the Alenier family. Their appellate case came down today AFFIRMED. I could not be prouder for them.

Or for me! No, I didn’t adopt, but congratulate me anyway. Exhibit 1: on September 9, 2010, I wrote the following prognostications on the appeal:

Predictions?

My predictions aren’t worth squat. Rothenberg was particularly critical of both sides’ arguments. But that was also true in the case argued right before Alenier where she called the attorneys out for being untruthful with the record. Cope and Ramirez will likely affirm if they can find a way to do so.
I’d guess the following outcome on the arguments:

Bill of attainder: some chance,
Special law: less chance, but possible,
Separation of powers: no chance.

You can’t get away with any of these without creating new law outside of the realm of adoption, which can have unintended consequences. I think the more comfortable solution would be to decide Gill on EP grounds and then cite to that.
I guess we’ll know in another year or so.
[emphasis gratuitously added]

That’s exactly what happened! Does someone at the Third DCA read this humble blog? If so, our readership just jumped 50%. If not, could it be that I am an appellate genius? Probably not that either. What is more likely is that I JUST GOT LUCKY. And, as tonight is lotto night, I hope this is a sign of things to come.

But really, congrats Vanessa and Melanie!

Guardian ad Litem Program Executive Director Candidates Chosen

2010-10-27T07:35:00.001-04:00

Last night the GAL Selection Committee met via conference call to select the seven candidates they will interview for the position. Candidates were chosen based on the number of votes they received from the Committee.

I would like to share the names, but I wrote down eight names, my phone cut out, and when I returned they said they were interviewing seven people. Therefore, I don’t want to start any horrible rumors about who is or isn’t that eighth person who did or did not just miss an interview. I can say that the candidates consist of at least one: judge, DCF administrator, high ranking children’s advocate in the governor’s office, out-of-state DCF administrator, managing attorney at CLS, and GAL administrator.

There was little substantive discussion about the candidates during the meeting. Reasons for choosing candidates were not generally aired. There was, however, some dialog about whether any of the applicants had been “unfairly terminated from the Guardian ad Litem Program under the prior administration” (their words). And second, about the Florida reality that Tallahassee is a pain in the neck to travel to.

The interviews will be held in Tampa on the 8th. Stay tuned.

End of Florida's gay adoption ban increases pool of prospective parents (news)

2010-10-23T20:46:00.001-04:00

This makes me happy:

(The comments on the article do not, so don’t read them.)

Link: sun-sentinel.com.

Hooray for…Bill McCollum? Adoption Ban is Finally Dead

2010-10-23T07:53:00.001-04:00

Like some seemingly defeated horror movie villain, the gay adoption ban’s possibility of appeal has been waiting to jump up and grab us for the past 30 days. No more. Bill McCollum says “this is not the right case” for an appeal.

Hearing on Selection of new GAL Program Executive Director

2010-10-22T18:51:00.001-04:00

Look here:

The Guardian ad Litem Selection Committee will meet on Tuesday, 10/26/2010 from 6:00-8:00 PM EST via conference call. The phone number is 1-888-808-6959.

Purpose of Meeting: Selection of candidates for position of Executive Director, Guardian ad Litem Program.

http://www.justiceadmin.com/gal/GALCommittee.aspx

I will be lurking in telephonic attendance.

Queer and Loathing

2010-10-20T22:41:00.001-04:00

I’m in trial the next couple of weeks and can barely keep my eyes open. So, read this over and over again until I return to full steam:

Queer and Loathing: Does the Foster Care System Bully Gay Kids?

Nothing frightened Kenneth Jones more than the prospect of his first real date. He prepped for it like a court appearance, saving up for a black button-down shirt and for a salon treatment to tame his spiky locks and paint his nails with intricate black-and-gray swirls. He still remembers those last anxious teenage moments. "A lot of mirror time," he recalls. "Tons of mirror time."

He needed this to go well. As a gay foster child in Washington, DC, Kenneth spent most of his weekends alone. By the summer of 2009, the isolation had gotten so bad that he'd started calling his cell-phone carrier's help line with imaginary complaints, just so he could vent to somebody about something. He would even text himself encouraging messages, like "Good job," or "Damn you so strong."

…continue here: http://motherjones.com/politics/2010/11/gay-kids-foster-homes-bullying

Cost in Translation (appellate)

2010-10-15T07:23:00.001-04:00

Guardian Ad Litem Program v. O.R.
--- So.3d ----, 2010 WL 3984709
Fla.App. 3 Dist.,2010.
October 13, 2010 (Approx. 1 page)

Petitioners can’t be ordered to translate all pleadings into another language.* It’s costly, acts as a bar to court access, and isn’t supported by law. See however, http://translate.google.com.

* Case plans are the exception, right?

Peticionarios no se puede pedir para traducir todos los escritos en otro idioma .* Es costoso, actúa como un obstáculo para acceso a los tribunales, y no se admite por la ley. Véase, sin embargo, http://translate.google.com.

* Caso planes son la excepción, ¿verdad?

Prezante petisyon an pa kapab kòmande tradui tout konklizyon nan yon lòt lang .* Li koute chè, aji kòm yon bar jwenn aksè nan tribinal la, epi li pa la sipòte pa lalwa. Wè sepandan, http://translate.google.com.

* Plan Ka yo se eksepsyon an, dwa?

Klagerne kan ikke pålegges å oversette alle prosesskrifter til et annet språk .* Det er kostbart, fungerer som en bar for retten tilgang, og er ikke støttet av loven. Se imidlertid http://translate.google.com.

* Case planer er unntaket, ikke sant?

The Gil[l] Family is Safe: DCF Won’t Appeal

2010-10-12T20:59:00.001-04:00

DCF Secretary George Sheldon announced today that his agency will not appeal the Gil[l] adoption. According to my calculations, there is still approximately 10 days left on the appellate clock. Only then can we really break out the champagne.

A little blog housekeeping

2010-10-10T16:11:00.001-04:00

I did some rearranging and cleanup on the blog today. You’ll now see a list of the most read posts in the last 30 days to the right so that you can relive the magic and see what’s hot. I also added a link to the DCF Memos from CFCW in the child advocacy links, and links to this blog’s (and my) Scribd, twitter, and linkedin pages. If you want to “follow” this blog, you can join the four other people who do so by clicking “follow” below in the sidebar.

And finally, if you were curious about just how popular this blog is (and who hasn’t been curious?) you can confirm your suspicions that in fact tens of people a day read something on here. I’m quite proud. It used to be fives.

Thanks for reading,

-robert

“Children’s Participation in Family Law Decision-Making” (research)

2010-10-10T08:51:00.001-04:00

Yesterday I posted a news article about a group of siblings who started a petition drive to oust guardians ad litem and give children direct access to the courts. That was a case study. Judith Cashmore at the University of Sydney has done research:

Abstract:
The aim of this paper is to explore children’s views about their involvement in the post-separation arrangements that were made in their families and via the court process in the light of three theoretical models. The three models include two variants of the procedural justice theory – the instrumental and the relational – and Smart’s conceptualisation of children’s ethic of care and ethic of respect. There has to date been little procedural justice research specifically with children. This paper also distinguishes between various aspects of children’s participation, a term that carries a number of meanings and is used in various ways. In particular, it examines children’s reasons for wanting to be involved or not, and the association between the amount of say children thought they had had, how much say they wanted, and the perceived fairness of the arrangements and their happiness with them.

SSRN Link: Children’s Participation in Family Law Decision-Making: Theoretical Approaches to Understanding Children’s Views.

Trianna’s Law: Children Start Petition Drive to Oust GALs

2010-10-09T19:15:00.001-04:00

Three siblings work to change law
Three Bethel siblings want to change the law so children over 12 have a stronger voice in custody disputes.
Trianna, Marika and Cyril Gutzman have a petition to bring to state legislators for what they call "Trianna's law."
Trianna, 13, is a freshman at Kent School in Kent. Marika, 12, is a seventh-grader at Bethel Middle Schooland Cyril, 10, is a fifth-grader at Johnson School.
They believe they could better represent their needs than the attorney who speaks on their behalf. Their parents,Alexis Kaiser and Kevin Gutzman, share joint custody.

My first knee-jerk thought was “Ok, which parent put them up to this? Probably the one the GAL recommended against.” But that’s exactly the kind of thinking that results in silencing kids. I wish more kids felt empowered and invested enough in their lives that they fire their GALs and stand up for themselves.

"It's not like we speak a different language," Marika said. "I would go to see a judge myself and tell the judge what I want. I know what's best for me. I'm sure if a judge talked to me I would get what I want."

Again my first thought was immediate and jaded: “We have to protect her from unrealistic expectations and a sense of failure when the judge denies her requests!” But no, we don’t. You win some, you lose some. Kids learn that and survive to adulthood just fine. Good work, Trianna, Cyril, and Marika.

DCF Policy Memos

2010-10-09T08:04:00.001-04:00

DCF issued a series of policy memos recently. They are:

Health Care Oversight and Coordination Plan (for out-of-home youth)
Initial Tasks for National Youth Transition Database
Transition Plans for Youth Aging Out of Care
Update Statewide Adoption Recruitment Website
Child Welfare Leadership Program Application Process
Guidelines for Moving Infants and Young Children
Individuals Who Can Give Consent for Early Steps Services
Performance Path for Excellence Mapping Clarification
Normalcy Memo
Revised CFOP 175-71 (IV-E Foster Care and Adoption Assistance) with DCF Memo
Continuance and Discontinuance of IL Benefits
APPLA Review Required

A full collection of memos over the last 12 months (and historically) can be found at the Center for Child Welfare website.

Picking the new GAL Program Executive Director

2010-10-07T07:31:00.001-04:00

The new GAL Program Executive Director, whoever she or he might turn out to be, will have huge opportunities to improve a lot of things. The first step could be in communications: It was only yesterday that the Program officially acknowledged to its employees that it was in fact searching for a new Executive Director, though the job posting has been up for some time.

Sixty people have applied. There is some kind of intricate procedure involved in picking the person, which was described more or less as “divide the candidates into two piles—qualified and not qualified—and then interview the most qualified ones.” Sounds like a solid plan. Of the sixty people who applied, I don’t know the breakdown of how many were qualified.

Interviews are tentatively scheduled for November 8. If you know anyone who is applying or who you think should (or should not) be selected, share in the comments or at guardianadwhat@gmail.com.

The members of the Qualifications Committee are

Bob Butterworth
Judge Jeri Cohen, from Miami
Judge Katherine Essrig, from Tampa
Mag McGauley, Guardian ad Litem Foundation
Debbie Ressler, from Ocala (is this her?)

Civil Gideon Taskforce (in Philadelphia)

2010-10-03T08:20:00.001-04:00

“Civil Gideon” is the unicorn of public interest attorneys. Taking from the Philadelphia Bar’s website:

WHAT DOES CIVIL GIDEON MEAN?

The legal community and public often ask, “What does ‘civil Gideon’ mean?” In the landmark United States Supreme Court case of Gideon v. Wainwright, 372 U.S. 335 (1963), the Supreme Court decided that indigent defendants have a constitutional right to be represented by an attorney, at no charge, in state criminal cases. The term “civil Gideon” refers to a growing national movement that has developed to explore strategies to provide legal counsel, as a matter of right and at public expense, to low-income persons in civil legal proceedings where basic human needs are at stake, such as those involving shelter and child custody.

The National Coalition for a Civil Right to Counsel (NCCRC) maintains a web site that provides additional information about the civil Gideon movement as well as articles, resources and other information about current litigation, legislation and related efforts and strategies nationwide to expand the right to civil counsel. The NCCRC was formed in 2003 to facilitate collaboration among advocates nationwide and provide training, research and other support to legal services programs, bar associations, law schools, private law firms, and others in their local efforts to establish a civil right to counsel.

Civil Gideon is relevant to my interests because it would immediately open the question of what right to counsel children in the dependency system have.

Past recollections recorded (evidence review)

2010-10-02T08:35:00.001-04:00

Polite v. State
41 So.3d 935
Fla.App. 5 Dist.,2010.
July 16, 2010 (Approx. 9 pages)

We disagree with [the 4th and 2nd DCA cases saying that the foundation for past recollections recorded can only be laid by the declarant] because they are contrary to the plain language of the statute and rule. Section 90.803(5) simply requires as a foundation that the statement is “shown to have been made by the witness when the matter was fresh in the witness' memory and to reflect that knowledge correctly.” The statute does not say that this “showing” must always (or only) be made by testimony from the declarant. A plain reading of the statute would allow admission of the statement so long as the state presented evidence (from any source) sufficient to support a finding that the statement was made when the matter was fresh in the witness' mind, and that it was accurate.

…

In this case, the victim testified that three men came to her house, kicked the door open, and put a gun to her daughter's face. Beyond this, the victim testified that she could not remember any more details at the time of trial. As pointed out by the State, this event would qualify as “a matter about which a witness once had knowledge, but now has insufficient recollection to enable the witness to testify fully and accurately.” § 90.803(5), Fla. Stat. (2008). Further, the victim identified the written statement as the statement she gave to police on the day of the crime, approximately one hour after the events took place, and testified that she told the police what happened when they came to her house. Given the totality of the circumstances in this case, including that the witness swore to the statement as true at the time she gave it; that she was still consumed with the emotions of the event when talking with police; and that other evidence corroborated her statement, we find that there was sufficient evidence to lay a foundation for admission of the statement under section 90.803(5), even though the declarant herself never confirmed the accuracy of the statement at trial.

Bullying: this is important

2010-10-01T18:17:00.007-04:00

(If the first video doesn't work, click here.)

It gets better.

Appellate Score Card – September 2010

2010-10-01T07:47:00.001-04:00

One big-ticket appeal in September involving some kind of gay adoption or something (!!!), but otherwise a very slow month. I’d say Judge Lederman in Miami gets the MVP, not just for the unanimous Gill Adoption grand slam but also for her PCA just a couple weeks before.

Judge Martin	Palm Beach County (4th DCA)	September 30, 2010	J.M. v. DCF	PCA
Judge Prather	Osceola County (5th DCA)	September 30, 2010	J.S. v. DCF	AFFIRMED as modified, striking unpleaded grounds from final judgment of TPR
Judge Robbins	Marion County (5th DCA)	September 29, 2010	W.G. v. DCF, GAL	PCA
Judge Martin	Palm Beach County (4th DCA)	September 29, 2010	J.L. v. DCF	PCA
Judge Day	Pinellas County (2nd DCA)	September 24, 2010	S.L. v. DCF	PCA
Judge Behnke	Hillsborough County (2nd DCA)	September 24, 2010	J.A. v. DCF	PCA
---	Supreme Court, from 3rd DCA	September 22, 2010	N.S. v. DCF	DENIED petition for review of N.S. v. DCF
Judge Baker	Palm Beach County (4th DCA)	September 22, 2010	C.S. v. DCF	PCA
Judge Fensom	Bay County (1st DCA)	September 22, 2010	A.H. v. DCF	COE
Judge Lederman	Miami-Dade County (3rd DCA)	September 22, 2010	DCF v. Adoption of XXG	AFFIRMED finding that gay adoption ban is unconstitutional violation of equal protection
Judge Kautz	Citrus County (5th DCA)	September 20, 2010	T.K. v. DCF	PCA
Judge Grincewicz	Orange County (5th DCA)	September 17, 2010	A.R. v. DCF, GAL	PCA
Judge Marriott	Volusia County (5th DCA)	September 17, 2010	W.V. v. DCF, GAL	PCA
Judge Wilensky	Duval County (1st DCA)	September 17, 2010	E.D. v. DCF	PCA
---	Supreme Court, from 3rd DCA	September 15, 2010	M.V. v. DCF	Review dismissed, citing Dodi Pub. Co.
Judge Gross	Pinellas County (2nd DCA)	September 8, 2010	M.T.S. v. DCF	PCA
Judge Lederman	Miami-Dade County (3rd DCA)	September 8, 2010	N.O. v. DCF	PCA
Judge Geiger	St. Lucie County (4th DCA)	September 8, 2010	M.I. v. DCF	AFFIRMED order granting TPR and changing CP goal to adoption
Judge Neal	Hernando County (5th DCA)	September 7, 2010	J.S. v. DCF	PCA
Judge Geiger	St. Lucie County (4th DCA)	September 2, 2010	T.W. v. DCF	PCA
Judge Galluzzo	Seminole County (5th DCA)	September 1, 2010	DCF v. T.T.	REVERSED order placing children with parents and terminating jurisdiction, for failure to comply with ICPC and keep case open 6 months after reunification
Judge Fensom	Bay County (1st DCA)	September 1, 2010	J.B.S.v. DCF	PCA

Apply to be the new GAL Program Executive Director

2010-10-01T07:16:00.001-04:00

You know you want to.

Working Title: EXECUTIVE DIRECTOR - GUARDIAN AD LITEM
Broadband/Class Code: 848819
Position Number: 21012651
Annual Salary Range: $92,033.00 current salary
Announcement Type: Open Competitive
Facility:
Pay Grade/ Pay Band: 84133
Closing Date: 10/15/2010

Provided below is a link to a printable State of Florida Job Application (PDF version)
https://peoplefirst.myflorida.com/sap/public/bsp/sap/public/graphics/mimes/SOFapp.pdf

Full job posting here.

Has the GAL Program Interim Director Been Named?

2010-09-30T18:45:00.001-04:00

That’s certainly the rumor.

Project Patchwork Offers Assistance with Gay Adoptions (tip)

2010-09-30T07:09:00.001-04:00

I received this tip and it’s well worth passing along.

From: "Project Patchwork" <info@projectpatchwork.org>
Date: September 29, 2010 10:59:20 PM EDT
To: "Project Patchwork" <info@projectpatchwork.org>
Subject: Adoption 411: Adoption Options to build your family - Reminder - Join us tomorrow!
Hello Friends:
Please join us or pass this along to someone you know who may be interested in adoption. We are very excited to add on a section of this program to talk about the status of adoption for gay families after the recent court case in the 3^rd District Court of Appeals finding the bay on gay adoption to be unconstitutional. If you can’t make it and you would be interested in attending a future program, please let us know by calling (727) 824-0863 or emailing to maria@projectpatchwork.org.
Adoption 411: Basic Adoption Options
Thursday, September 30^th from 6 to 8:30 pm
Project Patchwork Home:
1405 Dr. MLK Jr. St. N
St. Petersburg, FL 33704
Come here a discussion about the options for families choosing adoption today – international, domestic, private, public (foster care), special needs, transracial, open adoption,….whether you are just considering adoption, beginning your adoption journey or already deeply involved in your adoption journey, you are welcome to attend! Please RSVP to share@projectpatchwork.org or 727-824-0863
Upcoming Adoption Events
Adoption Book Club
Thursday, October 21^st from 6:30 to 8
(snacks provided – feel free to bring extras)
Project Patchwork Home:
1405 Dr. MLK Jr. St. N.
St. Petersburg, FL 33704

3^rd Annual Night of Shared Journeys
November 10, 2010, 6 to 8 pm
Mahaffey Theater
You won’t want to miss the next round of extraordinary adoption stories from adoptees, birth parents and adoptive parents in celebration of National Adoption Month (November). If you are interested in sharing your story, helping plan the event, becoming an event sponsor, or attending, please contact us immediately at maria@projectpatchwork.org or 727-824-0863. It is a night you won’t want to miss!!!!
Help secure the future of the Adoption Sharing Center – Donate to support an adoption positive Tampa Bay community!
Want to see the Adoption Sharing Center grow and expand? You can make a difference in bringing adoption positive programs to our community. Your financial support is needed and very much appreciated! You can go online to www.projectpatchwork.org/waystogive.asp and make a donation or you can send a check to the address below. Our vision is expansive and includes educational opportunities, hands-on workshops, networking experiences, and lots of other fun adoption related events. The Adoption Sharing Center is focused on providing support over the lifetime journey of adoption for those primarily impacted by adoption – adoptees, birth families, and adoptive families.

Patchwork Adoption Placement Services
Project Patchwork is a private, non-profit licensed child-placing agency. We provide a wide array of adoption placement services – home studies, birth parent counseling and social assessments, and full adoption placements. We also provide services for families who have already met with an expectant/biological parent independently and need assistance in navigating the adoption process – both from the legal and social work aspects. We strive to provide the highest quality and ethical services. We believe in creating life-long relationships and are always honored to be on the adoption journey with our birth and adoptive families.
Beyond Adoption
Florida KidCare - Keeping our children healthy
Concerned that your children or a child you know is without health care coverage? Florida KidCare is enrolling new families every day and Project Patchwork has joined a statewide effort to help more uninsured children receive health care benefits at a price their families can afford through the state subsidized program. Florida KidCare accepts applications year-round from families with uninsured children under the age of 19. Children enrolled in the program have access to preventive care such as regular doctor's visits, immunizations, dental and vision benefits. Most families pay a monthly premium of $15-$20 or nothing at all. Families can apply on line 24-hours a day on the Florida KidCare web site at www.floridakidcare.org, which is a one stop source for information about program benefits, costs, and enrollment status. You may also contact us directly for more information or to complete the application at our office. Call us at (727) 824-0863 or email us atinfo@projectpatchwork.org. Families can also call Florida KidCare at 1-888-540-5437 for additional information or to request an application.
If you know of an organization or company who would benefit from having Florida KidCare flyers or brochures available for their staff or clients, please let us know. We can all help ensure that all of Florida’s children have health insurance.
We hope you are well and look forward to seeing you soon!
Your Patchwork family
Project Patchwork, Inc.
1405 Dr. Martin Luther King, Jr. St. N.
St. Petersburg, FL 33704
(727) 824-0863
info@projectpatchwork.org
www.projectpatchwork.org
CONFIDENTIALITY NOTICE: This email message, including any attachments, is for the sole use of the intended recipient(s) and may contain confidential and privileged information. Any unauthorized review, use, disclosure, or distribution is prohibited. If you have received this email and are not the intended recipient, please contact the sender at Project Patchwork, Inc. St. Petersburg, FL by phone at (727) 824-0863 or reply by e-mail. All copies of the original email should be destroyed. Thank you.
Project Patchwork, Inc. is a not-for-profit 501(c)(3) organization. All donations are tax deductible as permitted by law. Project Patchwork, Inc. is registered with the State under the Solicitation of Contributions Act. 1991. “A COPY OF THE OFFICIAL REGISTRATION AND FINANCIAL INFORMATION MAY BE OBTAINED FROM THE DIVISION OF CONSUMER SERVICES BY CALLING TOLL-FREE (800-435-7532) WITHIN THE STATE. REGISTRATION DOES NOT IMPLY ENDORSEMENT, APPROVAL, OR RECOMMENDATION BY THE STATE.” Regis. #CH23283. Fed. ID # 20-8595261

DCF Teams with APD on Adoptions

2010-09-30T07:05:00.001-04:00

This is phenomenal.

``When she started growing up and I heard her story, I said, `I won't let her go.' This kid needs permanency,'' said Marie Modl. ``I said, `I won't let her go. I will adopt her.' ''
The Modls were able to adopt S.M. as part of a new program by administrators at the state Department of Children & Families and the Agency for Persons with Disabilities. The program will set aside money for services so that foster kids with extensive needs can be adopted by parents who otherwise couldn't afford to raise them.
Read more: http://www.miamiherald.com/2010/09/29/1849367/new-program-enables-adoption-of.html?story_link=email_msg#ixzz110eWQQYA

Supreme Court Denies Review of Low-functioning Co-Parenting Case

2010-09-29T07:44:00.001-04:00

N.S. v. DCF was an opinion with a dissent that sent shivers down the spine of DCF and caused significant introspection about the way services are provided to low-functioning parents. I’ve written about it twice: Least Restrictive Means Doesn’t Mean Relative Placement and Shepherd’s Dissent: The Unintentionally Unfit Parent. The Supreme Court announced last week that it would not be reviewing the case.

The Court has indicated no interest in muddling together LRM, MBI, and relative placements now that the lower courts have finally sorted them out, which is exactly what Shepherd’s Dissent does. Additionally, as a strategic matter, N.S. did not have the best facts for a Supreme Court case on the issue: the mother’s condition had in fact harmed the child, two psychologists said the mother could not benefit from services, and there were no overwhelmingly appropriate relatives to care for the child. I think denying review was right.