Florida Supreme Court hears immigrant juvenile’s dependency appeal

The Florida Supreme Court heard the case of OICL v. Department of Children & Families today. From Gavel to Gavel:

OICL banner.png

Click the image or here for video. 

Transcript:

View Related Transcript (PDF) [still pending as of the time this was posted]

 

Summary: Palm Beach County — A Guatemalan teenager who entered the United States in early 2014 was released by immigration officials to his uncle in Palm Beach County. The boy filed a petition, alleging he had been abandoned by his mother in his home country and asking to be ruled a dependent child. The trial court denied the petition and the Fourth District Court of Appeal upheld that ruling. The boy asked this Court to review, citing conflicts with other District Courts of Appeal.

The scope of collateral estoppel between TPR and dependency cases

The posture of this case is complicated by previous appeals and the fact that the multiple children are differently situated. But here’s the gist: the Department brought a TPR petition against the mother and failed to prove the case. Florida law permits a judge to make a finding of dependency at the end of a TPR trial instead of granting the TPR. That wasn’t requested by the Department nor done by the judge; instead, the judge dismissed the petition. The Department then brought a new dependency petition alleging the same facts. The judge granted the dependency. The mother’s argument is that the Department is barred (collaterally estopped) from bringing the same arguments again and again until they get a win. The panel sounds sympathetic to the claim.

Florida has a history of weakening procedural protections for parents in child welfare cases in the name of protecting the child. The unintended consequence of this trend is the deterioration of the adversarial truth-finding process–the Department need not investigate very well or litigate very well if they know they will get a do-over in the rare case where an appeal is successful. The result is that the Department’s effort can be rationed to cases where courts push back, but parents have to spend significantly more time litigating technicalities and the court has to spend significantly more resources undoing or explaining away the procedural knots caused by “feeble” (to use the word from the oral argument) litigation of the Department. Though it may seem counter-intuitive, holding the Department more accountable to procedural rules is likely to result in better outcomes for children by raising the level of practice overall. Fortunately for this particular child, comments by the panel seem to indicate that the mother is actually participating in services and doing well–therefore the Trolley Problem of child welfare appeals (whether to trade this child’s immediate safety for future children’s well-being) is off the table and the court is free to rule in a way to guide future behavior without fear of current harm.

Edit: Sounding sympathetic does not always lead to a win. The case was PCA’d.

Another PCA on how to close a case

This one is very technical, too. The court terminated supervision and left the child with an uncharged father. Mr. Colbert argues that the court should have weighed the child’s best interest in determining whether to close the case. (The trial judge apparently said on the record that it would be in the child’s best interest to keep the case open, probably so that the child could receive services from the Department.) Says the Department: “Dependency is not meant to continue forever when the child is with a parent who can take care of the child.”

The Third’s questions suggest that it believes the mother can reopen the case whenever she wishes and therefore there’s no harm to her rights here. Mr. Colbert points out that the standards in family court and the lack of services from the Department make the situations not entirely equitable.

The Third PCA’s.

Post-blogging a case on violations of withholds.

[youtube=http://youtu.be/8yijw65UrPA]

I’m a little behind in my video posting. This appeal is very technical. Kevin Colbert is arguing on behalf of a mother who received a withhold of adjudication. At some later time, she was found intoxicated (without the child present). The court violated the withhold and entered an adjudication and removed the child(ren) from her custody. Mr. Colbert argues that there should be a requirement that there be some nexus between the alleged non-compliance with the case plan and risk of harm to the child. He points out that case plans have numerous tasks in them–like find a job or learn English–that are not reasonably related to child safety.

Judge Emas suggests that unreasonable case plan tasks should be objected to at disposition, not at the violation hearing. I have the benefit of knowing that the case was PCA’d. It probably didn’t help that being found intoxicated certainly sounds like the type of thing that would put a child at risk, unlike “failing to learn English.” If a case comes up where a withhold is violated because of a truly non-sensical or ancillary task, the court will have to look much more closely at this practice.

Florida Supreme Court Hears Arguments on Ineffective Assistance of Counsel

iac argument

(Oral argument here. Previous posts here and here.)

When I watch this argument I see a traumatized court. Death penalty litigation, where the Strickland standard developed, is hard on everyone involved. And while termination of parental rights is often called the “death penalty of family law,” it has certainly never been given anywhere near the same level of due process or scrutiny. Consider for a moment that a final judgment of termination can be entered against you for failure to appear at your arraignment and then again for failure to appear at your trial. The death penalty cannot be entered by default. Imagine a person being sentenced to death because they could not find a ride to court on one day out of years of proceedings. That is obviously ridiculous. It’s equally ridiculous in termination cases.

But that is an aside. The questions I heard from the bench were about implementation and how to avoid all of the problems that Strickland seems to invite. Justice Pariente worried it will encourage nitpicking, but the ill seems to be the risk of interminable litigation and not the scrutiny itself. Everyone therefore appeared to agree that the time frames must be limited. Beyond that, it’s hard to predict what rules would avoid the problems we have today without creating new problems tomorrow. Justice Lewis, for example, raised the potential problem of the State and parent both having to waive privilege in the middle of pending litigation. This seems important: it’s hard to say how a parent would raise effective assistance if the parent had no access to whatever skeletons the state was hiding.

The procedural issues are actually quite puzzling. That doesn’t mean we should have no procedures at all. It’s clear that we need guidance on what the floor is for effective representation, but we also need funding and support to raise everyone so far above the floor that we rarely have to worry about hitting it. That’s why our clinic filed an amicus brief with Florida’s Children First, arguing that improving the quality of parents’ lawyers early in cases can help us get kids home sooner and safer, and be more sure that when children aren’t reunified it was because of safety and not because the system was too complicated or difficult for their parents to navigate.

One legal note of interest: several justices identified the ex post review that Strickland requires as an evil of the standard. Under Strickland, the court must, long after the trial has conclude, go back and review the record to determine if everyone behaved correctly. What was interesting to me was that the Least Restrictive Means analysis that has evolved in child welfare law contains the exact same flaw. Under LRM, the Court must go back and determine if DCF made a good faith effort to rehabilitate the parent, sometimes years after the case started. Because we do ex post review already, adding an effectiveness hearing after the trial would only serve to recognize the defense attorney’s role in ensuring that good faith effort by the state. Of course when 95% of parents rely on appointed counsel and state-funded services, budget cuts are a far more persistent threat to due process than sleepy attorneys.

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.

Is an attorney ad litem a guardian ad litem?

This oral argument arises out of a termination of parental rights case in which the trial court appointed an attorney to “represent the best interests of the child.” The Guardian ad Litem Program had announced that it had a conflict and could not represent the child because it was already appointed to the child’s mother, who was a minor in foster care. The mother’s rights were terminated and on appeal she argued only one point: that the law requires the appointment of a guardian ad litem, not an attorney ad litem, for the child.

The question raised by the judges is simple: Is there even a difference between an attorney ad litem and a guardian ad litem? The Department doesn’t see much difference (or that GALs are even that important–“just one of the manifest best interest factors”), and points to the statute that says that either a guardian ad litem or a “legal representative” is allowed. Mr. Joyce, for the mother, however, points out one main difference: AALs are legal advocates, whereas GALs are witnesses (who happen to have party status in Florida).  GALs testify and are subject to cross examination. AALs question witnesses and are bound by the Rules of Professional Conduct. The statute and rules all require a guardian ad litem, not an attorney.

The term “attorney ad litem” is indeed confusing, because “ad litem” means “for the case” and not “for the child.” The term “ad litem’ is added to the word “guardian” to distinguish this type of guardian from a probate or natural guardian who can make decisions in all matters in the ward’s life. When children are appointed attorneys, the suffix “ad litem” seems to redundantly follow. I say redundantly because all attorneys who accept appointments limited to a single case are by definition attorneys “ad litem,” irrespective of the age or capacity of their client.

The role confusion between AALs and GALs has come up on this blog before, for example in the case of the GAL appointed in a family case that was permitted to question witnesses as though she were a lawyer (probably in violation of the law against unlicensed practice of law). And a lot of ink in other fora has been spilled over whether an attorney can be a best interest advocate consistent with the rules of professional conduct, which require direction from an actual client. I’ve always found that particular argument tiring and distracting–we need all hands on deck in the fight against child maltreatment. My preferred debate is over who we should be prosecuting for creating the conditions of abuse and neglect.

What strikes the Third DCA panel as most curious, though, is why the Guardian ad Litem Program is conflicting off of a case where it also represents a minor parent. “This is the first we’ve heard of this problem,” says Judge Lagoa.  The Guardian Program is not there to explain, but their Standards of Operation are clear: It is the Program’s policy to leave it to local offices to decide how to handle the situation. According to the Standards:

4.D. Representation of Related Children. The appointment of the Program to advance the best interest of multiple related children or parents presents no conflict of interest necessitating discharge, in accordance with Rule 4-1, Rules Regulating the Florida Bar.

The GAL must always be open and honest about our past role with children involved in the
case. In addition, every Circuit must resolve how we make recommendations to the court in
the following situations:

1. When the Program simultaneously represents a minor parent and that minor’s
child(ren);
2. When the Program represents a minor child and previously represented the minor
child’s parent and the information from the representation of the parent could now be
used to the disadvantage of the parent;
3. When the Program represents two or more children where the best interests of one
child are incompatible with or in any way contrary to the best interests of another.

 
Possible resolutions may include: 1) use of pro-bono attorneys or 2) assigning a GAL from a
different circuit, county, or unit. The Circuit may consider additional options based on local
circumstances and resources. The Program strives to assign an active GAL to all children the
Program is court-ordered to represent, within available resources.

 

The local program, here, used a pro-bono attorney, consistent with its policies.  What underlies the question about how the Program could have a conflict is another question about how it functions on cases. For most of the oral argument, the  Court’s assumption seem to be that the Program’s primary role is to recruit and train volunteer guardians ad litem. An organization with that description would not need a conflict of interest policy if the guardians themselves are autonomous. What is missing from that picture is that the Guardian ad Litem Program recruits and trains volunteers to work the cases to which the Program itself is appointed. The Program takes substantive positions on cases and manages those positions sometimes in conflict with the volunteers who appear before the courts. The Program describes how its team model works in its Standards:

In nearly all cases, the GAL will have first-hand knowledge of the facts of the case. When a conflict arises as to an issue of fact, the team shall defer to the GAL. When a conflict arises as to an issue of law, the team shall defer to the CBI Attorney.

If there is a circumstance when a conflict cannot be resolved within the team, the Circuit Director and Supervising Attorney should be consulted and should work together to resolve the conflict; if necessary, they should consult with the Regional Director and the Chief Legal Counsel. In the rare event that an agreement cannot be reached, the conflict shall be referred to the Director of Operations with legal consultation from the State Director of Legal Services.

There may be times when a GAL strongly recommends an action that is not consistent with state law; in those cases, the report to the court may be written to recognize the GAL recommendation, but point out that under current law, this action would not be permissible.

If the CAC and/or the CBI Attorney believe that it is in the child’s best interest to remove the assigned GAL from a case, the case must be staffed with the Circuit Director and the Supervising Attorney prior to any action being taken. Information regarding the GAL’s advocacy and the reasons for the proposed removal of the GAL from the case must be documented. No GAL shall ever be removed from a case without being informed of their team’s concerns by the Circuit Director and having the opportunity to respond. The decision to remove a GAL from an assigned child is up to the Circuit Director and the decision may not be delegated.

 

Much ink has also been spilled over whether this is good (the institutional knowledge of the Program plus the enthusiasm of the volunteers results in better best interests recommendations), bad (the politics of a statewide governmental organization with insecure funding negatively affect the positions taken on behalf of individual children), or just baffling (it’s unheard of for a statewide agency to take the place of a party in interest–the child–to a matter).  I’ve long taken the position that it’s all three at different times, but mostly good for the kids the Program works with. The team model was one of the things that drew me to work at the Program when I first started practicing.

In this particular case, the Third DCA affirmed the TPR, holding that while it was definitely error not to appoint a guardian ad litem, the attorney ad litem fulfilled almost all of the same functions and nobody objected during the trial. The philosophical debates over whether an AAL can really be a GAL and whether a GAL can have a conflict were rightfully left for another day.

This TPR should be reversed, but it probably won’t be

It’s Friday and there’s not much to say on this one. Mr. Joyce (for the mother) is right that the Three or More Removals TPR ground in Section 39.806(1)(l) is almost blatantly unconstitutional without some saving nexus construction, but the argument wasn’t preserved below in this case and it sounds like there were other grounds available to TPR the mother. Even though there might be technical arguments about sufficiency of the evidence and reliance on judicially noticed documents, it doesn’t sound like anyone on the bench is willing to bend over backwards to preserve this mother’s rights.

I note that the State’s argument was repeatedly that “this mother chose cocaine over her child.” I also note that there are a lot of chronic illnesses that cause parents to be out of the home periodically that nobody would consider TPR’ing a parent for. Substance dependency among poor people who don’t have the resources to minimize the harm to their families is not on that list.

Prediction: PCA.