As predicted, G.O. v. DCF, the TPR case where a GM heard the MBI testimony, was reversed. The only question was how far backed the Third would go to start the proceedings over. They went all the way: the mother must be renoticed for her advisory. You can read the very short opinion here.
Court: Florida Third District Court of Appeal
Judges: Lagoa, Logue, Schwartz
Attorneys: Thomas Butler for the Father; Sharon Wolling for the Mother (joining the father’s argument); Karla Perkins for DCF; Hillary Kambour for GALP (joining DCF)
Issues: whether the numerous alleged evidentiary errors warrant reversal; whether failure to allow testimony on the child’s recusal amounts to reversable error; whether there is a right to confrontation in dependency cases.
Thoughts: A few interesting features in the discussion stand out. Judge Lagoa says at one point that you could introduce a child’s statements under the party admission exception. That strikes me as wrong, unless they are being admitted against the child, which would be rare unless the child has joined the TPR petition, but still does not seem fair to use them against DCF. Judge Schwartz raises the LRM/nexus argument from Judge Altenbernd’s concurrence in In re Z.C., 88 So.3d 977 (Fla. 2nd DCA 2012). He then acknowledges that this “more difficult” issue is not before the court.
Predictions: It could go either way. I’d guess an even chance of a reverse and remand for consideration of the testimony concerning the recantation.
The hearing didn’t disappear…it was dismissed as moot. I would suspect that means that the youth came back or his location is no longer a mystery. Since the Third DCA didn’t take up the issue anyway, that might be some indication that they believe the outcome here was right.
A Second DCA trial court found a child at risk of harm from his father because the father had gang tattoos, even though in the same breath the court acknowledged:
[O]n the other hand, he has been actively involved in his son’s life. He has stepped up to the plate in terms of providing support for the child and, most importantly, visiting the child all the time…. [H]e is doing a good job with his son right now.
Outcome? Reversed. In re J.J.V., — So.3d —-, 2012 WL 4900821 (Fla. 2nd DCA).
I’ve known that R.L-R was set for OA on October 29th for a while, but for some reason the Third DCA hadn’t posted it on their website so I kept my mouth shut. Now I know why, it took three weeks just to type out all the amici:
ORAL ARGUMENT CALENDAR
TEN MINUTES A SIDE FOR ORAL ARGUMENT
MONDAY, OCTOBER 29, 2012 at 10:30 o’clock A.M.
CERTIORARI #12-1897 & #12-1892
IN THE INTEREST OF R.L-R,
FLORIDA DEPARTMENT OF CHILDREN Hillary S. Kambour; Karla Perkins,
AND FAMILIES and GUARDIAN AD LITEM
Petitioners, for petitioners,
R.L-R., a minor, Baker & McKenzie and Angela Vigil and
Respondent. for respondent.
Colodny, Fass, Talenfeld, Karlinsky, Abate & Webb; Robin L. Rosenberg for Florida
Children’s First, The Children’s Advocacy Program of Legal Aid Service of Broward
County, The Community Law Program and Lawyers for Children America, as amici curiae.
Carlton Fields and Peter D. Webster and Edith G. Osman and Michael P. Sampson for
Public Interest Law Section, Trial Lawyers Section, and the Legal Needs of Children
Committee of The Florida Bar and Fifteen Past Presidents of The Florida Bar, as amici
Bernard P. Perlmutter for University of Miami School of Law Children & Youth Law Clinic,
as amicus curiae.
William W. Booth and Michelle Hankey for Legal Aid Society of Palm Beach County,
Inc.,, as amicus curiae.
Brydger & Porras; Fogel Rubin and Fogel for the Family Law Section of The Florida Bar as
Marsha L. Levick and Riya Saha Shah and Kacey Mordecai; Michael J. Dale for the
Florida Assocation of Counsel for Children, Juvenile Law Center, and National Association
of Counsel for Children as amici curiae.
Court: Florida Third District Court of Appeal
Judges: Suarez, Cortinas, Emas
Attorneys: Kevin Colbert for the Mother; Karla Perkins for DCF; Hillary Kambour for GALP (joining DCF)
Issues: whether a general magistrate has authority to hear manifest best interests testimony; whether it is error to enter a TPR final judgment on a GM recommended order without waiting 10 days; whether lack of service of the recommended order on the mother’s attorney was error.
Summary: Since DCF and GALP conceded error on the above issues, the only question is whether the Third will order the Department to personally serve the mother again and start the whole process over at advisory. Mr. Colbert was unable to waive the advisory on behalf of his client at the OA.
Analysis: Based on the push to have Mr. Colbert waive the advisory, there is some indication that the Court believes it will have to be redone. The Court would, however, have to locate the procedural error all the way back at the beginning of the process, which started with the GM holding an advisory hearing at which a parent did not show up. To my understanding, the error seems to have occurred when the GM heard MBI testimony, not at the initial default. There seemed to be no interest in preventing GMs from hearing advisory hearings altogether. Therefore, my tentative prediction is a reversal for a new MBI hearing only, with the default preserved and room to file exceptions or a motion to vacate.
In case you missed it, you can watch oral argument on the dual maternity (lesbian moms) case, D.M.T. v. T.M.H., on wfsu.org here.
What’s really behind the 3rd’s decision? Closing the barn door BEFORE the horses get out:
Applying Miller retroactively would undoubtedly open the floodgates for postconviction motions where at the time of conviction and sentencing, the judge did not have an affirmative duty to consider mitigating factors of youth.
Nope. Can’t have the floodgates of litigation opened over a minor matter like a juvenile spending the rest of his or her life in hell on earth. Gotta keep those floodgates open for things arising in civil court, like, say, mortgage foreclosures.