child welfare, law, and lots of graphs

child welfare, law, and lots of graphs

News & Notes

How Often Does Florida DCF Get Sued and Lose Big?

The numbers don’t match up and there’s no explanation of why. For example, there were 19 sex abuse cases, but only 17 perpetrators. I’d also like to see the cases they lost/settled under $15,000. If there are 200 of those, then that’s significant. I’d also like an explanation as to why risk outlays plummeted 66% in 2010. I don’t supposed it’s because DCF suddenly did 150% better than ever.

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.

News & Notes

Tweeting the Florida Dependency Summit #FLDS11

I wrote the organizers of the Florida Dependency Summit about whether there would be a promoted hashtag for the event. I’m still hoping for a response. Until then, I propose #FLDS11 as the tag. Tell your friends and followers!

From: Latham, Robert
Sent: Sat 8/27/2011 5:13 PM
To: ‘amyk@____’
Subject: summit on twitter?

Hi Amy,

I was wondering if the Summit planned on promoting a twitter hashtag so that participants can use it during the event?





In the Academy

We had to say one thing we were proud of and the others had to practice being supportive and congratulatory. The turn came to me. I said, “This is hard, I’ve been raised not to brag about myself.”

He, on tenure track, laughed: “Haha, you’ll never make it in the academy.”

I laughed back, “That’s a relief, because I never intended to.”

News & Notes

FACC Stands Against NACC Certification, Just to Spite GAL Program

The background is this: NACC is looking to set up certification programs for counsel working with children across the country. This includes GALs, AALs, government attorneys, and even parents’ attorneys. The plus sides are obvious: baseline education and training requirements, elevation of the profession to something worthy of requiring special expertise (which it is), and creating cross-organizational relationships of attorneys working in child advocacy.

Just about everyone who has thought or voted on the subject has agreed that it’s a good thing for the attorneys and children of Florida. With one glaring exception: the Florida Association of Counsel for Children (FACC) has taken a strong position against the certification. Why? To roughly quote one of its members: because the GAL Program will get its attorneys certified and then people will think they’re legitimate and we’ll never get rid of them.

The GAL Program’s response was appropriate and measured. Since this is a blog, my critique does not have to be. FACC’s position is short-sighted, ideologically inane, and harmful to their own goal of institutionalizing a representation model in which children are represented directly by competent counsel. Adopting their slant (which I don’t fully agree with), if you want the GAL Program gone, you’re going to have to offer a viable, scalable alternative. Currently, there is none. Good attorneys at DCF and the GAL Program leave on a daily basis to seek careers in other fields of law. That is the enemy. Starving the GAL Program of expertise only furthers the brain drain. By creating a real thing called a counsel for children, you give those attorneys a sense of identity and a level of competence to aim for. With that you hopefully increase the likelihood of them making a career of child advocacy instead of using it as just a band-aid job until something better comes along.

NACC has my vote.

News & Notes

What do GAL Program Attorneys do?

That’s the subject matter of a certain open records request currently pending for the Guardian ad Litem Program. According to my sources, it reads as follows:

This is a public records request under chapter 119 being made upon the Statewide Guardian Ad Litem Program for an opportunity to inspect and copy documents containing the following information:

1.            The name of each attorney, circuit director and regional management staff within the Guardian Ad Litem Program throughout Florida, including that employee’s specific title, their duties and responsibilities as set forth in their position description, their particular qualifications for the job (hopefully beyond possession of a license to practice law in the case of a staff attorney), their most recent performance evaluation and their annual compensation during fiscal years 2009 and 2011.

2.            The number of dependency petitions filed, or thereafter adopted following voluntary dismissal by others, solely by the Guardian Ad Litem Program, broken down by circuit, during fiscal years 2009 and 2011.

3.            The number of termination of parental rights petitions filed, or thereafter adopted following voluntary dismissal by others, solely by the Guardian Ad Litem Program, broken down by circuit, during fiscal years 2009 and 2011.

4.            The number of appeals to the district courts of appeals (either plenary or original proceeding) in which the Program was represented solely by a staff attorney, the Program was the sole appellant and the staff attorney filed a dispositive motion, or brief longer than 10 pages in length, excluding attachments, during fiscal years 2009 and 2011.

5.            The number of appeals to the district courts of appeals (either plenary or original proceeding) in which the Program was represented solely by a staff attorney, the Program was the sole appellee and the staff attorney filed a dispositive motion, or brief longer than 10 pages in length, excluding attachments, during fiscal years 2009 and 2011.

6.            The number of fair hearings or DOAH proceedings in each circuit in which the hearing request was filed and litigated solely by a staff attorney in connection with a dependent child, during fiscal years 2009 and 2011.

7.            The policies governing and/or analyzing from the perspective of the Rules of Professional Responsibility of the Florida Bar,  (a) whether the client of an attorney employed by the Guardian Ad Litem Program is the Program or the individual Guardian Ad Litem, (b) how that relationship is described to volunteer guardians ad litem, other parties and participants, and judges, (c) all protocols for resolving disagreements between the Circuit Director, the staff attorney and/or the volunteer, and (d) whether staff attorneys are authorized by the Program to instruct voluntary Guardians Ad Litem not to speak with third-parties based on attorney-client privilege.

8.            All internal evaluations by the Program since January 1, 2010 on either a statewide or circuit basis of the efficacy of the legal component of the Statewide Guardian Ad Litem Program, including but not necessarily limited to, (a) the competence of its staff attorneys, (b) the familiarity of staff attorneys with the psychological needs of children in out-of-home care, and (c) an evaluation of whether the existing methods of assigning a staff attorney to every new case constitutes a waste of scarce resources, relative to other staffing models, in view of the fact that there is no legal requirement that an attorney be assigned to every case on which a GAL is appointed.

9.            The statewide and circuit budgets for litigation by staff attorneys during fiscal years 2009 and 2011, and how those funds were specifically spent by category of expense.

10.          Materials written by the Program itself and used for training since January 1, 2010, including but not necessarily limited to performance evaluations and position descriptions, (a) to acquaint staff attorneys with the expectations the Program has of its staff attorneys, and (b) to gauge the concrete success of those efforts.

11.          For fiscal years 2009 and 2010, records already on hand or compiled collecting the case-specific tangible accomplishments by each staff attorney that would likely not have occurred but for the initiative taken by that staff attorney.

Redactions may be made where necessary to protect statutory confidentiality.

I say good luck with that. The GAL Program (notoriously both inside and outside of the Program) does not keep case management records in any easily compilable way. If you want to know something you have to go through thousands of paper case files with thousands of pages each, all over the state.  The faster approach might be to request the “motions logs” that attorneys have to submit monthly. That would provide a more granular view of the attorneys’ day-to-day functions.

I think this is a start in building an empirical case either for or against the current representation model, but limiting the request to things done “solely” by the GAL Program may artificially skew the results because this is multi-party adversarial litigation. It would effectively require the parent and DCF to be on the same side of an issue against the GAL Program, or there to be no parent involved at all. I think the question should be whether the GAL Program filed a dispositive motion on a matter, which is much harder to track because you’d also have to look at the reasoning of the courts.