Don’t forget to set aside some time Tuesday morning (approx. 9:40am) to watch the oral arguments in the Dual Maternity case in the Florida Supreme Court.
The Fourth DCA has issued another gender-based nexus opinion in A.J. v. DCF. From the face of the opinion, the home consisted of three girls and two boys. Two of the girls were directly sexually abused. The Fourth DCA upheld the TPR of all the girls (including the third one who wasn’t directly abused) but reversed the TPR of the boys. The Court would have done better to lay out the testimony that led it to this opinion, because otherwise the implication is that sexual violence is so gendered that you have to prove it will happen to a boy but you can assume it will happen to a girl. That appears to be a fundamental misunderstanding of both gender and violence.
Congratulations to CYLC Alumna Seida Wood on her first OA. She did a phenomenal job! Also congrats to CYLC Alumnus Brian Stewart for writing an outstanding brief and for going above and beyond by coming back to help with the moot and preparation for OA; and to prior CYLC intern Kristina Mills for laying a great record at the fair hearings.
Court: Florida First District Court of Appeal
Judges: Marstiller, Ray, Swanson
Attorneys: Seida Wood for the Acostas; Charles Fahlbusch and Marlene Stern, AAGs for DCF.
Issues: whether two ex-foster youth placed out of state by DCF met the requirement of Florida residency for RTI; whether the residency requirement violates Equal Protection where DCF places children out of state to their disadvantage.
Predictions: I’ll forego predictions on this one, since it was my firm’s case. I think the judges understood the issues very well and I hope for the best for our clients and every other foster kid facing similarly impossible circumstances.
As a teaser of things to come, the Children and Youth Law Clinic has OA in the First DCA next week on Michael Acosta v. DCF and Joseph Acosta v. DCF. The issue is the RTI residency requirements for two brothers who moved out of state. Stay tuned.
[Note: the audio sync issues happened during the recording. Sorry about that.]
Court: Florida Third District Court of Appeal
Judges: Cortinas, Rothenberg, Fernandez
Attorneys: Kevin Colbert for the Father; Karla Perkins for DCF; Hillary Kambour for GAL Program
Issues: whether it is fundamental error for a court to not rule on a child hearsay motion prior to the trial or prior to the defense’s case; whether the time between initial disclosure and CAC of the child can make the statements unreliable as a matter of law; whether the corroborating evidence in this case was sufficient.
Summary: The Third was not biting on the argument that child hearsay motion hearings have to be held pre-trial, standing beside M.H. v. DHRS, 703 So.2d 1195
(Fla. 1st DCA 1997) (“We also find that in the context of a nonjury case, such as a dependency hearing, the fact that the necessary findings are not made until the conclusion of the case does not violate the principles announced in M.B., Mathis, or R.L.R.”).
Mr. Colbert was able to garner some sympathy for the idea that the ruling on the motion should be issued prior to the defense’s case, but in this particular case, from Ms. Kambour’s skillful and diplomatic refusal to concede the issue of whether this “is very different” when the ruling comes at the end of the trial (at 18:37), it would appear that trial defense counsel did not request a ruling prior to proceeding with her case.
As for the reliability and corroborative evidence, it would appear that there was a lot of testimony on the record about both of these, which would give the trial court something to rely on. Apparently five experts testified about the length of time between the initial disclosure of abuse and the forensic interview. Four of them thought it was not a problem; one–the defense witness–thought it was.
Prediction: Either a PCA or a bread-crumbs affirmance putting future defense attorneys on notice that they need to preserve the issue by requesting a ruling if this happens again.
(1) The Fourth DCA stands by its rule that sufficiency of the evidence arguments must be preserved at the trial level. E.G. v. DCF, — So.3d —-, 2012 WL 3965121 (Fla. 4th DCA 2012).
(2) The telephone appearance rule is as strong as ever. N.L. v. DCF, — So.3d —-, 2012 WL 3965124 (Fla. 4th DCA). The father in this case requested (presumably through his attorney) to appear by phone at his adjudicatory hearing when he didn’t appear in person. DCF objected. The result: Default. The court drops some breadcrumbs for the next parent in this situation, however: the father didn’t raise any constitutional arguments below, he didn’t appear at his best interests hearing either, and he never made any request to appear by phone as required under Florida Rule of Judicial Administration 2.530(d).
The Third DCA has placed G.H. v. DCF on calendar for oral argument for September 18th at 10:30am. While the details aren’t known at this time, rumor is that the case deals with the child hearsay rule, including whether the hearing must be held pre-trial and what constitutes sufficient corroborative evidence. These are important matters. As usual, stay tuned.
Today is the first day of the Florida Dependency Summit, which last year was the “Pathway to Independence Summit,” and this year is the “Child Protection Summit.” Keep at that name guys, I’m sure something will stick eventually.
I can’t be there this year, which brings me much sadness. Hopefully people will Tweet the event like last year. I have proposed the following hashtag for the occasion: #dcfsummit.
“A priest, three rabbis, and a minister walk into the #dcfsummit and OMG they’re in charge”.
Or, “Is that Judge ___ by the pool? #dcfsummit #dudeurelected”.
Or, perhaps: “Overflow hotel summit kegger! Let’s see who rides a bus now. #dcfsummit #ritzsukz #wesolonelyoverhere”.
For all its well-known quirks and beloved irritations, the Summit is an important event where everyone (whose organization can afford to send them) in Florida can feel part of something bigger than their personal struggles in the system. I wish everyone a great time of camaraderie and new ideas. And I can’t wait to hear all about it.