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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).

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 .

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Oral Argument on Notice and Hearing gets Real

Court: Florida Third DCA

Judges: Emas, Rothenberg, Fernandez

Attorneys: Kevin Colbert for Father, Karla Perkins for DCF

Issue: Trial court entered a TOS order with a no-contact for out-of-state father without notice and hearing. The father’s TPR by default was previously reversed in F.M. v. State Dept. of Children & Families, 95 So. 3d 378 (Fla. 3d DCA 2012).

Quote: “You don’t have to comb through the court file or make telephone calls to find out when hearings are going to be.” – Judge Rothenberg, who doesn’t know that in Miami dependency court that’s about the only way you can know for sure when your hearings are going to be. And even then, good luck.

As far as OAs go, this one has a surprise ending. Be sure to watch all the way through (or jump to 17:00).

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Run-of-the-mill TPR appeal

Nothing to see here, but if you want to watch anyway…

Florida 3rd DCA – Judges: Shepherd, Suarez, Salter

Attorneys: Thomas Butler for Father; Hillary Kambour for GAL Program; Karla Perkins for DCF

Issues: TPR for egregious conduct against non-biological child and abandonment; disqualification of judge for comments at the shelter with no written order.

Outcome: PCA’d. M.P.F. v. Dep’t of Children & Families, 3D13-1677, 2013 WL 5932469 (Fla. 3d DCA 2013).

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Free-range GALs — unlicensed practice of law by GAL not fundamental error

Court: Florida Third DCA

Judges: Lagoa, Fernandez, Schwartz

Issue: Is it fundamental error to allow a GAL to question witnesses directly in a dissolution trial?

Holding:  Even though GALs must participate only through counsel by statute, it’s not fundamental error if they don’t. The husband here did not object at trial and there was no showing that the GAL’s questions affected the outcome of the trial.

Cite: Millen v. Millen, — So.3d —- (Fla. 3rd DCA 2013)

Thoughts: Next up…charge of UPL against the GAL? Judge Fernandez says “it’s a clear violation of law…a third degree felony.” Says Judge Schwartz: “This is not what a guardian ad litem is supposed to do.”

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Third DCA PCAs Everything

The Third DCA has PCA’d the three last dependency-related oral arguments in a row.

  • B.S. v. DCF – What findings are required for a single-parent TPR? “We think every issue is important” except maybe this one.
  • E.D. v. DCF – What form must the dispo order take in a supplemental findings hearing? We’re not too picky about that either.
  • L.C. v. DCF – Did competent and substantial evidence support this guy’s expedited TPR for schizophrenia? Sure, why not.

 

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B.S. v. DCF – What findings are required for a single-parent termination?

Judges: Suarez, Lagoa, Salter

Attorneys: Ilene Herscher for Father; Karla Perkins for DCF; Hillary Kambour for GAL.

Issue: Must a court make explicit findings to justify single-parent TPR? Did the evidence support a one-parent TPR here?

Thoughts: The Third DCA: “We think every issue is important.”

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E.D. v. DCF – I have no idea what this OA is about (and I even watched it)

One small blessing is that it’s short…

Attorneys: Richard Joyce for Father; Hillary Kambour for GAL; DCF joining GAL.

Issue: What form must the order of disposition take when making a supplemental finding of dependency?

Thoughts: Almost absolute bench silence = PCA.

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L.C. v. DCF – Schizophrenia and Expedited TPRs

Court: Florida 3rd DCA

Judges: Shepherd, Logue, Schwartz

Attorneys: Kevin Colbert for the Father, Karla Perkins for DCF, Hillary Kambour for GAL Program.

Issue: Did substantial competent evidence support expedited TPR for a father with schizophrenia?

Thoughts: Expedited TPRs for treatable/manageable conditions are always tricky because there is always a possibility, no matter how remote, that some treatment will work. I once had an expert in a TPR trial testify unexpectedly to an experimental procedure used in Switzerland (or somewhere) that had achieved good results. But the procedure wasn’t approved for use in the US. The question is what threshold of reasonable expectation of benefit do we require? Bright-line rules are difficult. There is always a doctor who is willing to try one more thing. There is always a judge who has had enough.

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OA on T.B. v. DCF: What level of specificity is required for single-parent TPR findings?

Florida Third DCA

Judges: Cortinas, Emas, Logue

Attorneys: Ilene Herscher for Mother, Hillary Kambour for GAL Program

Issue: Specificity of single parent termination findings

Prediction: remand for further findings.

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Third DCA Upholds Attorney-Client Privilege for Foster Youth, Quashes Contempt Order

R.L.R. came down today quashing the contempt order and upholding the attorney-client privilege. Says the court: “In this circumstance it is altogether clear that protecting the attorney-client privilege protects the administration of justice.”

I was saddened and disappointed by some of the language DCF (notably not the GAL Program) used in its oral argument and response. Language that implied lawyers did not care for kids or that they do not suffer through the heartbreaking situations that dependency cases present. Language like this, from the response:

The Department’s concern for the safety of these minors is in contrast to the Attorneys who express their concern about future dependent minors being able to remain outside the custody of the Department.

Those of us who do this work care deeply about the well-being and safety of our clients, as do case managers, guardians ad litem, judges, and everyone else. We want what is best for them, but we accept the added burden of also teaching them and counseling them to reach for what is best for themselves. It is a much tougher job than I imagined it would be, but I am glad every time a kid calls me to ask before doing something outlandish, dangerous, or rude.

I could never support a rule that allowed an attorney to “secret” a child away, as DCF worded it in their response. But the attorney-client privilege does not and has never done that. It leaves the child one lifeline when they feel they are drowning, as it was meant to do for everyone.

I was discussing with several students this week that I rarely, if ever, see the types of behaviors that people describe many of my clients exhibiting. I rarely see the uncontrolled anger, the destruction of property, the emotional breakdowns. It’s not because I don’t spend time with my clients. I talk to some of them almost daily. I attribute my good fortune to the fact that I am always on their side. I tell them where they are and how to get where they want to be. Even when I’m giving them bad news or telling them no, I do it with their interests and well-being first in mind. I still have to reprove myself and my allegiances to them every day. The pro bono attorney for R.L.R. was willing to go to jail to defend her client’s rights and ensure his safety. He should know that she has his interests truly at heart, even when she gives bad news, even when she has to tell him no. That’s just for a day, though. Tomorrow she will have to prove herself to him again.