In 2005, two years after Juvenile Rule 8.350 was enacted, Mary K. Brennan of Jacksonville Area Legal Aid, faced a situation none of us wants: an eight-year-old client being committed to a SIPP facility. At the SIPP hearing the Department submitted the suitability assessment into evidence over a hearsay objection without the testimony of the qualified evaluator or any other psychologist or psychiatrist. The GAL testified that she had never met the child. The case manager supervisor who testified had not seen the child in over a year. The trial court authorized the SIPP placement. The child appealed.
The First DCA, and especially Judge Benton, were exceptionally skeptical that this was a wise procedure. Shouldn’t the doctor recommending the placement be subjected to cross examination on that opinion? The stakes were high for the child:
Judge Benton: But funding aside, you’re saying there isn’t any reason he couldn’t be kept there until he’s 18 or 21.
DCF: He could be.
JB: And then be Baker Acted.
DCF: He could be.
JB: So it’s possible that we’re talking about consigning an eight-year-old to a life in mental institutions at this hearing.
DCF: Correct, but he’s now nine and a half.
Based on the oral argument, the outlook appeared good. But then, on February 16, 2006, the opinion came down: PCA’d. Not even an opinion: the First did in fact consign the boy, without even comment as to why. The Westlaw copy does not list the vote, but the First DCA’s website does–Judges Ervin and Lewis concur in the PCA; Judge Benton silently dissents.
Less than a year later, Ms. Brennan was back with another case. This time a teenager. Again, DCF declined to produce the qualified evaluator at the commitment hearing. But this hearing had something new: the child provided the testimony of people from his school who said he did well there and had good friends; and the testimony from the current placement that said he wasn’t even receiving therapeutic services there.
The result: a unanimous opinion, written by Judge Benton and concurred in by Judges Ervin and Browning, holding that a finding of emotional disturbance cannot be based solely on a hearsay suitability assessment. It’s one of the precious few due process victories children in the foster care system have seen since M.W. v. Davis in 2000, and it’s a testament to Mary K. Brennan’s tenacity and not letting a PCA get you down.
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