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Case Law Updates

A Small Pharmacy in Her Purse


Judge Jay P. Cohen - Florida 5th District Court of Appeals

On appeal, the mother argues that drug tests showing the use of drugs prescribed to her cannot support the conclusion that she failed to substantially comply with her case plan. Certainly, the legitimate use of prescribed medications should not lead to a parent’s loss of parental rights, but that is not the situation here. On multiple occasions, the mother possessed more medication, and in such a combination, as to belie any legitimate medical use. Additionally, she possessed unfilled prescriptions from several different physicians with dates close in time for the same medications. In short, this mother is the face of a problem of epidemic proportions—the obtaining of large quantities of prescription medications from numerous physicians.

T.K v. Department of Children and Families, — So.3d —-, 2011 WL 3861596 (Fla. 5th DCA 2011).

I could find no other TPR case involving addiction to prescription medication or doctor shopping. The only similar case was C.A. v. DCF, 27 So. 3d 241 (Fla. 4th DCA 2010), where a permanent guardianship order was reversed and the case remanded for immediate reunification after an independent doctor said that the mother’s medications were appropriately administered.  Obviously, these cases pose significant proof problems–the production of a single valid prescription usually negates any argument of misuse. It’s not every day, as in this case, where you find a parent carrying hundreds of pills in a purse.

But the policy proclamations and rhetoric in this opinion are interesting, including the footnote quote from Governor Scott stating that Florida is the epicenter of pill mills (he wasn’t too keen on doing anything about it, but that’s beside the point). Prescription drug addiction, which was previously a privilege of the rich, has become as available to the poor as fast food (using similar distribution models). And, as usual, the consequences for the same behaviors across classes is greatly disproportional. Cases beget cases, so look forward to future pill mill TPRs soon.

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Case Law Updates

City of Orlando v. Pineiro: What not to Say in Closing Argument

Florida Fifth District Court of Appeals

City of Orlando v. Pineiro
— So.3d —-, 2011 WL 3359613
Fla.App. 5 Dist.,2011.
August 05, 2011 (Approx. 7 pages)

My honest thanks to the Fifth DCA for publishing a whole opinion on improper closing argument. My tongue-in-cheek thanks to anonymous counsel for making it possible.

Improper arguments covered in the opinion include:

  • golden rule
  • send-a-message
  • value of a life
  • derogatory remarks about counsel
  • “do anything to win”
REVERSED and REMANDED FOR NEW TRIAL.
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Case Law Updates

C.L v. DCF: Default 101

It's no Taj Mahal.
Florida 1st District Court of Appeals

C.L. v. Florida Dept. of Children and Families
— So.3d —-, 2011 WL 3341490
Fla.App. 1 Dist.,2011.
August 04, 2011 (Approx. 1 page)

Default 101: You can’t default someone who tells you in advance they can’t be at the hearing for financial reasons. REVERSED.

Categories
Case Law Updates

C.G. v. DCF: Judicial Notice Is Ok

Judge Richard J. Suarez - Florida 3rd DCA

C.G. v. Department of Children and Families
— So.3d —-, 2011 WL 3250545
Fla.App. 3 Dist.,2011.
August 01, 2011.

The only thing interesting about this TPR appeal is the discussion on judicial notice. The Mother argued that the trial court erred in judicially noticing the dependency orders because they were entered at less than clear-and-convincing evidence. Judge Suarez for the Third DCA says that’s fine: dependency orders plus substantial and competent evidence at trial can equal clear and convincing evidence. AFFIRMED.