Oral Argument on Drug Use and Dealing – 3D13-0343 – M.H. vs DCF

3D13-0343 – M.H. vs DCF

Florida Third DCA, Judges: Emas, Logue, Schwartz

Attorneys: Kevin Colbert for Mother, Karla Perkins for DCF, Hillary Kambour for GALP

Issues: Substantial competent evidence to support adjudications, prospective risk, and nexus, substance abuse, drug sales, providing alcohol to minor

Quote: “They may know what Four Loko is, but WE don’t know what Four Loko is.” – Emas.

My thoughts: When Schwartz is laughing at your client’s behavior, your case is dead.

Attorney-Client Privilege Case Set for Oral Argument, Again

Once again, R.L-R., the attorney-client privilege case, is set for oral argument on June 10, 2013 at 10:30 in the Third DCA. If you recall, last time the youth ran away and only his attorney knew where he was. The youth refused to tell or communicate with anyone else. DCF moved to compel the attorney to disclose the information, and the attorney refused citing privilege. Judge Hanzman, in a lengthy order, ruled that attorney-client privilege applies to children and youth in dependency proceedings and that there is no “best interests” exception. DCF took that ruling up on writ, which the Third DCA dismissed as moot when the child returned, despite requests from all parties for the Court to hear the matter.

Since that time, Judge Hanzman recused himself on an unrelated ground, and the case is now set before Judge Lederman. One of the main arguments made on behalf of the privilege is that, if the child does not feel he can safely talk to his attorney, the next time he runs away nobody will know where he is. Thankfully that didn’t happen: The child apparently ran again, but again kept in contact with his counsel. It is no surprise, however, since Judge Lederman has gone on record many times stating that she does not believe in attorneys for children, that she found that there is certainly an exception to the privilege for a child if it applies at all.

As I said before, this is a critical moment for the rights of dependent children in Florida. Equally so, though, this is a critical moment for all attorneys: if the state and courts can force an attorney to disclose information based on their own interpretations of what is in that client’s best interest, then there is no privilege at all. This encroachment at the edges should raise alarm bells across the Bar.

“The first thing I lost in law school was the reason I came”

Back in March, I came across this post at Poverty Law blog:

A student who wants to do work on social justice came to my office and after I emailed him Bill Quigley’s essay, Letter to a Law Student Interested in Social Justice, he sent me a link to Dean Spade’s essay, For Those Considering Law School.   Both are worth reading by those considering law school — and even though in law school or teaching at law school.  Three somewhat more dated essays include Duncan Kennedy’s Legal Education and the Reproduction of Hierarchy (a canonical classic), Robert A. Williams, Jr.’s Vampires Anonymous and Critical Race Practice (a favorite of mine), and my On Becoming “Professor” (mine, though it is the weakest link in this list of essays).

I decided to auto-post this at the beginning of each semester, with the reminder that

by most objective standards, law school is not a place that social justice-minded human beings should willingly be. And yet here they, we, are. We, teachers and students both, must struggle together to create something more out of the experience than marshaled consumption of (expensive) case books, debt-binding, and then hierarchical sorting of students for their disbursement into the hegemony.

Today marks the beginning of the summer clinic. During the summer, we only accept six students plus some returning fellows. We have 40 hours per week together almost completely without the normal distractions of the regular law school year. I’ve found in years past that the summers, by virtue of their intensity, have the power to be transformative for the students and me both. I am excited to report back on what we can accomplish.

Throwback Thursday: Mary K. Brennan Arguing for Right to be Heard in 2006

In 2005, two years after Juvenile Rule 8.350 was enacted, Mary K. Brennan of Jacksonville Area Legal Aid, faced a situation none of us wants: an eight-year-old client being committed to a SIPP facility. At the SIPP hearing the Department submitted the suitability assessment into evidence over a hearsay objection without the testimony of the qualified evaluator or any other psychologist or psychiatrist. The GAL testified that she had never met the child. The case manager supervisor who testified had not seen the child in over a year. The trial court authorized the SIPP placement. The child appealed. 

The First DCA, and especially Judge Benton, were exceptionally skeptical that this was a wise procedure. Shouldn’t the doctor recommending the placement be subjected to cross examination on that opinion? The stakes were high for the child:

Judge Benton: But funding aside, you’re saying there isn’t any reason he couldn’t be kept there until he’s 18 or 21.

DCF: He could be.

JB: And then be Baker Acted.

DCF: He could be.

JB: So it’s possible that we’re talking about consigning an eight-year-old to a life in mental institutions at this hearing.

DCF: Correct, but he’s now nine and a half.

Based on the oral argument, the outlook appeared good. But then, on February 16, 2006, the opinion came down: PCA’d. Not even an opinion: the First did in fact consign the boy, without even comment as to why. The Westlaw copy does not list the vote, but the First DCA’s website does–Judges Ervin and Lewis concur in the PCA; Judge Benton silently dissents.

Less than a year later, Ms. Brennan was back with another case. This time a teenager. Again, DCF declined to produce the qualified evaluator at the commitment hearing. But this hearing had something new: the child provided the testimony of people from his school who said he did well there and had good friends; and the testimony from the current placement that said he wasn’t even receiving therapeutic services there.

The result: a unanimous opinion, written by Judge Benton and concurred in by Judges Ervin and Browning, holding that a finding of emotional disturbance cannot be based solely on a hearsay suitability assessment. It’s one of the precious few due process victories children in the foster care system have seen since M.W. v. Davis in 2000, and it’s a testament to Mary K. Brennan’s tenacity and not letting a PCA get you down.




Now watch your favorite Florida Third DCA Appellate Moments again and again

The Third DCA has finally posted video archives! The interface is a lot clunky, so I downloaded all of the Dependency OAs and uploaded them to Youtube. I would encourage the Third to do the same in the future, as it will take strain off their servers and entertain viewers with hilariously non sequitur recommended videos and ads.

The youtubed videos are here: https://www.youtube.com/user/robertlathamesq .

A few highlights are:

The OTHER Gay Adoption Case

Counsel for non-offending parents

I’ll slowly work through them to add some annotations. Many are duplicates of videos I previously recorded by hand when they were still only being broadcast live (I will not miss that nonsense).


Addressing the Harm of Silence and Assumptions of Mutability

The article’s full title is Addressing the Harm of Silence and Assumptions of Mutability: Implementing effective non-discrimination policies for lesbian, gay, bisexual, transgender, and queer youth in foster care, found here at SSRN.

This quote caught me:

Children walk the streets today because they were kicked out of a home that saw their struggle as a moral choice rather than a fact of their identity development.

Elvia R. Arriola, The Penalties for Puppy Love: Institutionalized Violence Against Lesbian, Gay, Bisexual and Transgendered Youth, 1 J. Gender Race & Just. 429, 440 (1998).


Reunification Case Plans Mean Something

Once you give a parent a case plan with a goal of reunification, you have to see it through unless you have a hearing to change it. It’s hard to believe it’s that simple. But it is.

We recognize that section 39.521(3)(b)(1), Florida Statutes (2011), gives a court the option to place a dependent child with a nonoffending parent and to terminate jurisdiction over the child. This is clearly permissible when an offending parent has not complied with a case plan. See T.W. v. Dep’t of Children & Family Servs., 946 So.2d 1214 (Fla. 2d DCA 2006). But when the parent is diligently working on a reunification case plan, proceeding in that fashion effectively produces a de facto amendment of the reunification goal. See K.E. v. Dep’t of Children & Families, 958 So.2d 968, 971–72 (Fla. 5th DCA 2007) (citing R.H. v. Dep’t of Children & Families, 948 So.2d 898, 899–900 (Fla. 5th DCA 2007)). Again, due process requires that a court determine the propriety of amending a case plan only after an evidentiary hearing. See Fla. R. Juv. P. 8.420(a)(3) (providing that the court may amend the goal of a case plan “if there is a preponderance of evidence demonstrating the need for the amendment”).

The alternative option, in section 39.521(3)(b)(2), allows the court to order that reunification services be provided to the noncustodial parent and to change custody if need be, based on the best interest of the child. In this case, the court received no evidence suggesting that giving A.S. a reasonable opportunity to complete her case plan tasks would be detrimental to the child, and there was no evidentiary basis for altering the plan’s reunification goal. Under these circumstances, the court should have proceeded under subsection (3)(b)(2).

In re E.G.-S., — So.3d —- (Fla. 2nd DCA 2013).

Child Abuse Ad that Only Kids Can See

An advertising friend of mine sent this to me:

via Gizmodo. Set aside that this is an advertiser bragging about their own cleverness. I think the fact that cleverness is required forces people to confront that kids are more likely to be abused by family members than by strangers. Reaching those kids has always been difficult.

As the Gizmodo author notes, how long before advertisers use this trick to market toys and sugar directly to kids where parents can’t see? Answer: They already do that by making sure kids entertainment is completely unenjoyable to the average adult.

Florida Fifth DCA: Poverty and Medical Neglect

The Fifth DCA recently issued an opinion in A.J. v. DCF upholding a finding of dependency in a poverty + medical fragility case. According to the opinion, the parents were living out of a car, medical appointments were missed, and the child’s life was endangered. This, the court held, was sufficient to show neglect.

The Fifth DCA ends the opinion with a bit of rumination:

The parents and child have had a rough road to navigate and will continue to
face monumental obstacles. The purpose of the finding of dependency is not to punish
the parents, but rather to help them meet the needs of a very challenged little girl.
§ 39.501(2), Fla. Stat. (2011).

I and others have said before: A parent should not have to mortgage their parental rights in order to obtain help with a medically fragile child. Note that rich people don’t face this dilemma; they simply expend personal resources to help their child (which this family did without intervention from DCF until their funds ran out). Poor people only have public resources, and those come at a very high price. The Department started these proceedings seeking TPR.

Instead of patronizing these parents, the Fifth could have explained why section 39.01(32)(f) doesn’t apply to bar a finding of dependency here:

(f) Neglects the child. Within the context of the definition of “harm,” the term “neglects the child” means that the parent or other person responsible for the child’s welfare fails to supply the child with adequate food, clothing, shelter, or health care, although financially able to do so or although offered financial or other means to do so.

The parents missed appointments, but the opinion does not say why. If the parents were refusing voluntary help–rides to the hospital, medical day care, etc.–that would have been good guidance for the future.