When I read the news lately it seems obvious that we’re experiencing a pendulum swing towards more removals of children from their homes. (“Child protection” bill filing in 3…2…) I’ve spoken with folks around the juvenile courthouse and they’re already feeling the crunch: more hotline calls, more shelters, more cases. Does that lead to less scrutiny, less prosecutorial push-back?
Defense attorneys have a role to play in such times: stand tough and require DCF to really assess their cases before filing, and not let the media or a judge’s ire be the unpleaded fact that actually drives case decisions (not that anyone would do that, except when they do that). While it’s very hard to bring and win a Section 1983 claim against DCF, it should be in every defense attorney’s quiver to spot patently frivolous cases and follow up with a motion for attorney’s fees. Pro tip: if the dependency petition says people are “concerned” or “worried” but doesn’t have any actual harm, that’s a good place to start. As you’ll see below, you’ll have to do some work even in those cases.
This topic comes up because the Fifth DCA recently ruled on an attorney fees question in N.S. v. DCF, — So.3d —- (Fla. 5th DCA 2013). In a matter of first impression the Fifth DCA clarified the procedure for seeking attorneys fees from DCF.
Step 1. Serve a fee notice on DCF under 57.105.
Step 2. Wait 21 days.
Step 3. Win your trial.
Step 4. Motion for attorneys fees. (Results not guaranteed.)
Notably absent in those steps is “Provide notice to Department of Financial Services under 284.30,” which is what DCF was arguing was required.
The track record of litigants getting attorney’s fees in dependency cases has admittedly not been very good at the appellate level. (Taxing costs against DCF, however, has been fairly settled since at least 1988.) Way back in 1991, the First DCA denied an attorney’s fee request, finding that the question of whether the child was in an abusive environment was still up in the air and thus not so clearly false as to warrant fees. In re A.C., 580 So.2d 884 (Fla. 1st DCA 1991). In 1992, the Second DCA denied a motion for attorney’s fees against a guardian ad litem where the litigation involved a legitimate debate about a certain rule of procedure. In Interest of K.C., 603 So.2d 98 (Fla. 2nd DCA 1992).
Since then, the Fifth DCA has been the hotbed of attorney’s fees fights. In 2003, the Fifth held that section 57.105 applies to dependency cases over DCF’s argument that they are quasi-criminal and therefore the rule shouldn’t apply. DCFS v. Carter, 851 So.2d 197 (Fla. 5th DCA 2003). In DCF v. H.G., 922 So.2d 1072 (Fla. 5th DCA 2006), the Fifth held that only parties, not participants, are entitled to attorney’s fees (even when the participants are the custodians). Not to be bled dry, DCF struck back and sought fees from a parent in T.T. v. DCF, 944 So.2d 540 (Fla. 5th DCA 2006). That request was denied for lack of evidence to support it. (Also, what DCF attorney was really keeping their hours?)
The Fifth DCA even provided a checklist for future litigants wondering if they could get fees against DCF. In DCF v. J.B., the Fifth wrote:
We note that attorney’s fees may be awarded as a sanction under section 57.105, Florida Statutes, if the court makes appropriate findings. See, e.g., Dep’t of Children and Family Services v. Carter, 851 So.2d 197 (Fla. 5th DCA 2003). A court may impose attorneys fees as a sanction for bad faith conduct upon making appropriate findings. See, e.g., Bitterman v. Bitterman,714 So.2d 356, 365 (Fla.1998). A court may award attorney’s fees as a sanction for civil contempt as long as proper procedure is followed. See Dep’t of Children and Families v. D.T., 808 So.2d 1282 (Fla. 5th DCA 2002); Lamb v. Fowler, 574 So.2d 262 (Fla. 1st DCA 1991). A court may also award attorney’s fees conditioned upon the granting of a continuance. See Dep’t of Children and Families v. M.G., 838 So.2d 703 (Fla. 5th DCA 2003). We caution, however, that our holding in M.G. should not be construed as a broad grant of authority to award attorney’s fees as a sanction in contexts other than those outlined above.
Which brings us to “worries and concerns.” Attorney’s fees become especially difficult In the highly debatable (i.e., intellectually fuzzy) realm of prospective abuse. In DCF v. S.E., 12 So.3d 902 (Fla. 4th DCA 2009), for example, the Mother was accused of Munchhausen Syndrome by Proxy. When CPT determined the medical evidence did not support the claim, DCF dropped that allegation and added a general “at risk of harm” charge. That was dismissed for vagueness and the Mother again sought fees. The Fourth DCA held that DCF had reasonable basis for its petition because some doctors still believed the Mother posed a risk of harm to the child. Fees were denied. Costs were granted (which, in a MSP case can be a lot). Note that there was no discussion about the reasonableness of the doctors’ beliefs or whether they were grounded in scientific knowledge or just their guts. A defense attorney in such cases has a lot more work to do pre-trial.
Still, I believe attorney’s fees litigation (done well) provides an opportunity to shed light on the weakest cases, the ones DCF should have screened out as unfounded. The ones that don’t make it into the news because that’s not the type of tragedy we’re currently looking for.