Watch the pros argue nexus: is proof of harm required where the father kills the mother?

In this oral argument, Mr. Colbert shows that it is possible to argue under Florida law that even the murder of the child’s mother is insufficient to establish a nexus of harm to the children. Based on the court’s questions, this is probably not true much longer in the Third DCA.

The OA also contains an interesting discussion at the beginning about whether pre-trial detention constitutes incarceration for the purposes of a TPR, with Judge Emas sharply questioning the constitutionality of TPR’ing someone just because they couldn’t post bail (a scenario that does not appear to be the facts of this case).

[youtube http://www.youtube.com/watch?v=hZZLsY-Zp74]

Attorneys: Hillary Kambour for GAL Program; Kevin Colbert for the father.

Judges: Emas, Shepherd, Scales

Issues:
(1) What constitutes incarceration for purposes of TPR?

(2) Do the facts of this case constitute “egregious” domestic violence?

(3) Was there CSE to prove the father murdered the mother?

(4) What nexus is required in cases involving egregious abuse or murder of a parent?

 

Outcome: PCA’d at http://www.3dca.flcourts.org/Opinions/Opinions2014-04-16.shtml .

Do not revictimize human trafficking victims in residential facilities

When discussing whether to put victims of child trafficking in lock-down facilities, let’s not forget this:

Teens Tied Down and Shot Up With Drugs at Pembroke Pines Facility

Teens Tied Down and Shot Up With Drugs at Pembroke Pines Facility.

 

And this:

 

Source: CBS4 News Source

Video Shows Pembroke Pines Cop Punching Mentally Ill Girl.

And all of these:

  • http://www.chron.com/news/houston-texas/article/Kids-choked-stripped-beaten-at-Texas-treatment-1700591.php
  • http://myfox8.com/2014/03/24/alleged-child-abuse-at-omega-treatment-center-in-greensboro-conditions-inhumane/
  • http://www.bloomberg.com/video/finr-patient-allegedly-abused-by-staff-members-ZKkfZvi4TJOgw9LedauA4g.html

Those may be extreme cases, but the day-to-day workings of the facilities are not much better. I read hundreds of pages of treatment logs from lock-down residential facilities every month. The records come from all over Florida and the country–and all of them tell the same story: violence (both legal violence from staff and illegal violence from peers), isolation, coercion, drugs, and pain permeate the programs. But in the logs they are called by clinical therapeutic-sounding names: restraints, incidents, time-out rooms, positive peer culture, and emergency treatment orders. I cannot remember a client ever calling to say how safe and cared for they feel in a program, even the clients who are doing “well” by the program’s definition. 

Our lock-down residential treatment facilities do not have the tools or experience to work with victims of human trafficking, and I have seen no conclusive studies that show this is even an experiment even worth trying. For approximately $11,000 per month per child (the going RTC rate), we can do better for our victimized kids than to revictimize them, or to teach them that coercion, pain, and financial exploitation is all they can expect from adults and those who claim to care.

Fourth DCA rules against DCF on risk of harm. Do we need better laws or better lawyers?

I’ve read the Miami Herald’s Innocents Lost series with frustration, sadness, and a feeling of powerlessness. The calls for system change, better services, and more realistic funding, articulated brilliantly by many other people, are overdue and welcomed.

The parts of the series briefly dealing with lawyers struck me, however, in particular because I am a lawyer who has worked both “in the system” and now adjacent to it. Here is an example:

The Herald’s study of child deaths found that in at least 49 cases, children died after a lawyer overruled staff and said the department didn’t have legal cause to file a court petition on behalf of a child. Filing a court petition and advocating for it costs money. If an agency’s policy is to preserve the family wherever possible and conserve resources, a lawyer employed by that agency might be conflicted.

Read more here: http://www.miamiherald.com/projects/2014/innocents-lost/stories/solutions/#storylink=cpy

Throughout the series, lawyers are depicted as roadblocks, conflicted and obstinate, with no examination of whether their actions were actually supported by or required by the law they swore to uphold. Reading the stories I was bothered by the clear fact that much of the advice given by these anonymous lawyers, at the time it was given, was arguably consistent with law as it stands today. I use the term “consistent with the law” very technically to mean that the decisions were minimally supported by case law, not that the decisions were morally right or based on good judgment. The scenarios involving children left with drug-using and drug-abusing parents, or where domestic violence was not sufficient to justify removal–those same decisions are found and applauded in case law, derived from strong conservative legal principles in Florida, based on decades of case law that is unsurprisingly anti-government and often unapologetically pro-parental rights.

An example, in fact, has come down since the Herald’s series, highlighting what substantive child welfare law looks like in Florida. Yesterday, the Fourth District Court of Appeal released an opinion involving two siblings. One sibling, a girl, was abused by the father arising from “incidents involving her interaction with young men.” The trial court found that the other sibling, a boy, was either abused or was at risk of harm. The Fourth reversed the dependency on the boy based on a lack of proven risk of harm, writing:

 The abuse of one child is insufficient in and of itself to prove that a parent’s other children are also dependent. In re S.M., 997 So.2d 513, 515 (Fla. 2d DCA 2008); see also In re M.F., 770 So.2d 1189, 1194 (Fla.2000). “[T]he Department must establish the required elements of dependency as to each child individually.” In re S.M., at 515.

Although the Department also alleged that the child was dependent based upon a substantial risk of imminent abuse or neglect pursuant to section 39.01(15)(f), Florida Statutes (2013), the trial court made no findings with respect to the risk of imminent abuse. The Department must prove that there is a nexus between the parent’s abuse of one child and the risk of abuse to another child. “This analysis focuses on the parent’s behavior and whether that behavior or the circumstances surrounding that behavior permit a reasonable prediction that the parent will visit similar abuse or neglect on the child’s siblings in the near future.” In re S.M., 997 So.2d at 515.

W.R. v. Dep’t of Children & Families, 4D13-3508, 2014 WL 1225310 (Fla. 4th DCA 2014)

It is in this grey area called “nexus” where a lot of bad decisions happen. There is a long documented history of courts using scientifically unfounded, stereotype-based heuristics for assessing risk to the second child. For example, the abuse of step-children has been found insufficient to find a biological child at risk. The sexual abuse of a girl child has been found insufficient to find a boy child in the same household at risk. Domestic violence aimed at a mother and her daughter was found to not be predictive of abuse towards a male child. The list goes on. Florida courts have required that the Department prove that the parent is a risk above and beyond the abuse inflicted on the first child, possibly due to some mental health diagnosis or other factor. When I meet with experts for cases, they are constantly puzzled by this requirement of nexus–they tell me that the abuse of one child speaks for itself. But Florida law does not agree, and cases are lost or dismissed on this theory all the time.

Law is applied and interpreted by lawyers (and judges, which could be a whole other post). Lawyers, like all people, vary in their intelligence, risk tolerance, education, experience, and dedication. Recruiting good lawyers is as difficult and as important as recruiting good investigators. Much was made in the Innocents Lost series of the poor pay of Protective Investigators in the child welfare system ($38,000), but the lawyers involved in the decision-making process are making very little more. According to People First, a new lawyer at the Guardian ad Litem Program can expect a starting salary of $41,267. A Senior Attorney at DCF can expect $52,000. That’s a senior attorney. Put that figure against the U.S. News & World Report article yesterday that students graduating from the University of Miami Law School have, on average, $148,000 in debt, and you can see the problem. Good and dedicated lawyers work in the child welfare system for lots of reasons unrelated to salary, but this is not a pay structure that attracts and keeps good and dedicated lawyers. If we want better outcomes, we must improve the whole system, laws, lawyers and all.

Florida judge says schools probably have the right to decide which students have to suffer violence quietly

In Lake County, Florida, a young girl at Carver Middle School wanted to start a Gay-Straight Alliance in order to combat bullying and other abuses she saw at her school. The administration refused her request, stating that the group was not related to the curriculum despite the fact that other groups were approved that were unrelated to the curriculum. The young girl, through her parents, brought a law suit against the school board.

The matter was pending on a motion for preliminary injunction from the girl and a motion to dismiss from the school. Judge Hodges, Middle District of Florida, denied both, finding that the girl does not have a reasonable likelihood of success on the merits mostly because HOMOSEXUALS IN MIDDLE SCHOOL, but that the girl does state a claim because he can’t ignore that a ton of other courts have ruled in favor of youths seeking to start GSAs.

The core of the opinion shows what the judge clearly does not understand:

Turning, then, to the reasonableness of the School Board’s action, it must surely be beyond question at this moment in the nation’s history that the subject of sexual orientation and the legal status of those in the LGBT Community is at the forefront of public debate, particularly with regard to same sex marriages. Moreover, it is a very controversial issue. Indeed, and sadly, it is common knowledge that the debate has often turned violent. It seems entirely reasonable, therefore, that those in charge of a public middle school with students twelve to fourteen years of age would want to distance the school and its pupils from a debate best left to more age mature educational levels. Indeed, even if a reasonable person could disagree with that assessment, the same reasonable person would be forced to agree that the contrary view, while perhaps mistaken, is nevertheless within the range of reasonableness. In any event, in addition to Hazelwood School District itself, there is ample authority for the proposition that the youth and immaturity of students below the high school level is an appropriate if not a vital consideration in determining whether a restraint on speech is permissible. See Walker-Serrano v. Leonard, 325 F.3d 412, 416 (3d Cir.2003) (Scirica, J.) (“[A]ny analysis of the students’ rights to expression on the one hand, and of schools’ need to control behavior and foster an environment conducive to learning on the other, must necessarily take into account the age and maturity of the student.”) (citations omitted). “Human sexuality provides the most obvious example of age-sensitive matter.” Id. at 417.

Carver Middle Sch. Gay-Straight Alliance v. Sch. Bd. of Lake County, Fla., 5:13-CV-623-OC-10PRL, 2014 WL 897072 (M.D. Fla. 2014)

How do you even begin to explain how this is wrong to someone who does not want to see it? The “debate” is not the source of violence in schools; the girl sought to gather with her peers and speak out against already existing violence. The judge’s opinion means that schools have a legitimate interest in silencing victims and those who want to stand with them in support, and that schools have a legitimate interest in deciding that students can come together to share ways to beat back opponents in organized sports but not come together to share ways to respond to actual peer abuse they say they suffer on a daily basis. The judge writes as though these kids do not already know what sexual orientation is. They clearly know what it is and they’re getting an unfortunate education in what it means.