Court orders DCF to pay for pro bono attorney’s travel costs. Appeal ensues.

This oral argument arises out of the pro bono representation of an extremely young girl–the parties say 11 years old at one point–placed in a lock-down residential treatment center out of state. The child’s attorney requested funds to visit the child in the other state. The court ordered DCF to pay for it, under the theory that it would be therapeutically necessary for the child. DCF appealed.

Until this year when the legislature authorized paid attorneys for certain children, all legal work on behalf of kids in Florida’s child welfare system was done pro bono, meaning as charity by the attorneys who accepted the case. A lot of good pro bono attorneys have come through the courtrooms over the years, often at great expense to themselves and their firms.

Much of the oral argument is about whether the order is final or not. That part isn’t particularly interesting, and DCF eventually concedes that it doesn’t matter for the purposes of reversing it.

The more interesting legal conversation is about whether the court can order DCF to pay for anything at all. DCF says “no.” The attorney for the child says “of course, but not a specific service by a specific provider.”  The distinction is that the court can enforce statutory mandates that the Department care for the child, but the court cannot micromanage to the point that it interferes with DCF’s ability to manage its own service providers and resources.

The Court asks if there is any statute that requires the appointment of an attorney in this situation. DCF doesn’t seem to know how to answer that question, but the answer is that before 2014 there was not. Appointments of attorneys for children in residential treatment centers pre-2014 was done by a court rule, and the Justice Administrative Commission, which pays for attorneys fees, has long taken the hardline position that the court rule did not create a “right to counsel” that would require them to pay for the litigation costs. Attorneys who wanted to do pro bono work for children had to come with deep pockets to fund it, or be limited to whatever they could do for free.

The new statute allows payment for attorneys for five categories of special needs children: (1) children in skilled nursing facilities, (2) children diagnosed with developmental disabilities, (3) children who do not assent to their psychotropic medications, (4) children who are victims of human trafficking, and (5) children in or being considered for residential treatment facilities. The little girl in this case falls into the last category. I’m not convinced that DCF needs to pay for the travel costs in this situation. A pro bono attorney could likely get an order finding the client indigent for costs, even if the attorney was waiving payment for their own legal services. A child should not be prejudiced by lack of access to litigation funds just because their attorney is not seeking fees.

Prediction: I think it’s likely that the order will be considered non-final, the appeal treated as a petition for cert and denied without prejudice to the Department to re-file the petition if and when the court orders it to pay a concrete sum of money. In the meantime, JAC on how to IFC.

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