CHIEF JUSTICE: I NOTE THAT THERE ARE A GOOD NUMBER OF COUNSEL WHO ARE GOING TO ADDRESS THIS ISSUE. THE COURT, THE MARSHAL WILL GIVE YOU A LIGHT AT THE END OF YOUR PERIOD. WE WILL Y OBSERV, THOUGH MOU THEME,OT IS TN EVERY TO BENSIF THE OT ,TE ENDOF THE TIMEDE PRESENTATION, SO I BELIEVE, MR. SILVERSHEIN, YOU ARE GOING TO BEGIN?
YES, YOUR HONOR. MAY IT PLEASE THE COURT.ES JOEL SILVERSHEIN. I AM THE CHAIR OF THE JUVENIE COURT RULES COMMITTEE ON -- OF THE FLORIDA BAR. I AM HERE INITIALLY AS A MATTER OF INTRODUCTION AS TO WHAT HAS HAPPENED AT IN TIME WITH THE RULE.
I THINK WE ARE FAMILIAR WITH THE HISTORY, AND WITH THE TIME PARAMETERS, THE COMMITTEE PROPOSED SOME ADDITIONAL AMENDMENTS.
THAT'S CORRECT.
ARE YOU GOING TO ADDRESS THOSE ADDITIONAL AMENDMENTS TO THE --
LET ME JUST TELL THE COURT HOW WE GOT TO THIS POSITION. AT OUR MEETING THIS YEAR IN MIAMI, WE DEDICATED OURSELVES SOLELY TO THE REVIEW OF THE RULE BY THE COURT AND MADE AMENDMENTS ACCORDINGLY. THE MAIN DIVIDING POINT IN OUR COMMITTEE WAS NOT THE RULE, , BUT WHETHER THERE WAS AUTHORITY TO HAVEHALE. BECAUSE OF THE NARROW MARGIN OF THE VOTE, WHICH WAS 14-TO-11, THE MAJORITY REPORT AND MINORITY REPORT WAS PREPARED AND WILLE PRESENTED TODAY.
NOW, THE PART ABOUT THE CONSTITUTIONAL ISSUE HAS TO DO WITH THENALSD TE CHILD,EMENT OF AN ATTORNEY WOULD BE DISCRETIONARY UNDER CERTAIN, AND THESE WERE THE FACTORS TO CONSIDER, BUT THE MAJOR PART OF THE ORIGINAL MW OPINION THAT WENT TO DECIDE WHETHER THERE SHOULD BE A RULE, WAS ALL OF THE OTHER PROCEDURES SURROUNDING HOW A CHILD COULD BE COMMITED TO A RESIDENLTY. THAT PART WAS, WAS THAT PART OF THE CONTROVERSY?
NO.
OKAY. BECAUSE I DON'T WANT TO LOSE SIGHT OF THAT FACT.
THERE WASN'T A LOT OF CONTROVERSY ABOUT THIS. THE QUESTION WAS WHETHER OR NOT THERE IS EITHER CONSTITUTIONAL OR LEGISLATIVE AUTHORITY FOR THE RULE, AND THAT IS WHERE THE MAIN DEBATE WAS, IN RELATION TO THE RULE.
THERE WASN'T A LOT OF ASPECTS.
NO. THE COMMITTEE DID WORK WEL TOGETHER. DO YOU WANT TO KNOW THE RULE THAT IS BEFORE YOU TODAY,R PROPOSAL WAS PRESENTED TO THE BOARD OF GOVERNORS, WHICH APPROVED IT 39-TO-0, AND THAT THERE IS A ISSUE WHICH HAS COME UP. THERE WAS LEGISLATION PASSED,E BILL 632, WHICH DOES NOT REQUIRE A PREPLACEMENT HEARING BUT DOES MAKE IT OPTIONAL, AND I HAVE REQUESTED BOTH THE MAJORITY AND MINORITY TO BE PREPARED TO ANSWER ANY QUESTIONS REGARDING THAT, AND WITH THAT I WILL DEFER TO DEBORAH, ONE OF OUR INCOMING VICE CARES, WITH THE MINORITY REPORT.
MAY IT PLEASE THE COURT. ON BEHALF OF THE RULES COMMITTEE WE URGE YOU TO ADOPT THE PROPOSED RULE AS AMENDED BY THE RULES COMMITTEE. AFTER THE COMMITTEE BEGAN ITS TASK OF REVIEWING THE RULE THAT THE COURT HAD PUBLISHED IN ITS OPINION IN OCTOBER, WE HAD THE GOAL OF FINE TUNING THE RULE, PROVIDING TECHNICAL CHANGES, AND GIVING FURTHER BALANCING OF THE CHILD'S NEED TO BE HEARD DIRECTLY BY THE COURT, WITH THELD'S NEED FOR PROMPT TREATMENT.HERE A NUMBER OF FAIRLY MAJOR CHANGES THAT WE ARE PROPOSING.
IF THIS RULE GOES INTO EFFECT GIVE ME AN UNDERSTANDING OF WHO IS GOING TO BE IN THEM, WHEN ONE OF THESE PROCEEDINGS TAKES PLACE. WHO IS GOING TO, WHO ARE GOING TO BE THERESENTING PEOPLE.
THERE ARE TWO HEARINGS THAT ARE POSSIBLE UNDER THE PROPOSED .IRST ISAS, AND THE CHILD WILL BE PRESENT AT THAT STATUS HEARING, UNLESS THE COURT ST IT IS NOT ADVISABLE FOR THE CHILD TO BE THERE UNDER THE STANDARDS OF THE COURT'S PROPOSED RULE. IF THE CHILD IS THERE, IF THE CHILD ALREADY HAS AN ATTORNEY, THE CHILD'Y APPEARS, THERE WILL ALREADY HAVE BEEN A GUARDIAN AD LITEM APPOINT POD THE CHILD. -- APPOINTED FOR THE CHILD. THE GAL LAW -- THE GAL LAWYER, THE PARENT, THE PARENTS' ATTORNEYS, AND THE COURT.
THE WAY THIS RULE WILL PLAY OUT WILL BE AT WHAT POINT WILL THE CHILD BE ASKED WHETHER THE CHILD REQUESTS A LAWYER OR NOT?
AT THE STATUS HEARING, IF THE CHILD DOES NOT ALREADY HAVE A LAWYER, THE COURT WILL, THEN, DIRECTLY ASKDE OR SHEDISAGREES WITH THE PLACEMENT. IF THE CHILD INDICATES THAT HE OR SHE DISAGREES WITH THE PLACEMENT, THE COURT, WOULD THEN APPOINT A LAWYER FOR THE CHILD.
NOW, WHERE, HAS THELATURE ACTED ON THAT PARTICULART?ETF, IF THE CHILDUESTS A LAWYER WHO, IS TO PROVIDE THE LAWYER?
THE LEGISLATURE HAS NOT SAID WHAT IS TO HAPPEN. THE LEGISLATURE PERMITS THE COURT TO APPOINT AN ATTORNEY FOR THE CN THE COURT'S DISCRETION. THE RULES COMMITTEE IS PROPOSING THAT THE COURT ADOPT A RULE, GIVING GUIDANCE TO THE TRIAL JUDGES AS TON TO EXERCISE THAT DISCRETION AND THAT WOULD BE IF THE CHILD DISAGREES WITH THE PLACEMENT.
OKAY. WHO -- OKAY.
THANK YOU.
MAY IT PLEASE THE COURT. MY NAME IS XAVIER CORTADO, AND I AM HERE TORE -- HERE TONT COR. AT AGE 8, SHE WASD IN A TREATMENT FACILITY, R BEING ABUSED BY HER --
WHAT DO YOU MEANWHEN YOUE THEEST OF HER CHILDHOOD. HOW LONG ARE WE ACTUALLY TALKING ABOUT HERE?
FROM AGE 6, FOR A PERIOD OFF AND ON OF ABOUT TEN YEARS.
AND THE RESIDENTIAL TREATMENT FAST SNILT.
IN VARIOUS RESIDENTIALREATMENT --?
INSESIDENLMENT FACILITIES.
DURING THAT TIME, WAS SHEGHT BACK TO COURT AT VARIOUS POINTS?
SHE FIRST SAW A JUDGE WHEN SHE WAS ALMOST 15 YEARS OLD. SHE FIRST HAD AN ATTORNEY AT THE AGE OF 17.
SO AT THE TIME THAT SHE WAS INITIALLY PLACED THERE, NO COURT PROCEEDINGS TOOK PLACE?
NONE THAT SHE WAS PRESENT AT, NONE THAT SHE PARTICIPATED IN, AND IMPORTANTLY NONE THAT SHE HAD ANY VOICE. IN FACT, IT WASN'T UNTIL SHE FIRST HAD AN ATTORNEY AT AGE 17, THAT SHE FINALLY LISTENED TO COUNSEL, SOMEONE WHO COULD USE THEIR LEGAL SKILLS TO NEGOTIATE, ADVOCATE MR. CHIEF JUSTICE
COUNSEL, I AM SORRY, BUT YOUR TIME IS UP.
I AM BRUCE WIFNICK. I AM HERE TODAY REPRESENTING SEVERAL JUDGES, A LAW PROFESSOR AT NOVA AND NOW UNIVERSITY OF MIAMI SCHOOL OF LAW AND NOW CHILDREN AND YOUTH LAW CLINIC. CORINA STORY ILLUSTRATES THE TREMENDOUS CONSEQUENCES THAT THCOMMITMENT DECISION INVOLVES. WE ARE TALKING ABOUT COMMITTING KIDS TO INSSN WHIH MAY WELL BE ABUSED PHYSICALLY, SEXUALLY, EMOTIONAL, IN WHICH PERHAPS A THIRD OF THEM WILL RECEIVE PSYCHOTROPIC MEDICATION, SOMETIMES OVER MEDICATION THIS. IS A MOMENT US DECISION, AND WHAT WE ARE HERE TO DO TODAY IS TO TALK ABOUT WHAT SHOULD BE THE PROCESS THAT WE APPLY IN MAKING IN MOMENT US DECISION. THESE ARE CHILDREN THAT HAVE BEEN REFERRED TO AS THE THROW AWAY KIDS, THE DISCARDED CHILDREN. HOW SHOULD WE MAKE THIS MOMENT US DECISION? THE PROPOSED -- THE MOMENT US DECISION? THE PROPOSED RULE, AND I THINK THIS IS AN ISSUE, CALLS FOR COUNSEL RATHER THAN GUARDIAN AD LITEM. WHAT IS THE DIFFERENCE AND WHY DO WE THINK COUNSSELL SO IMPORTANT HERE?
BASICALLY THIS IS MADE UNDER A STATUTE THAT IS VERY, VERY, VERY VAGUE, AND IN EFFECT TALKS ABOUT NOT QUITE BEST INTERESTS OF THE CHILD BUT SOMETHING VERY MUCH LIKE THAT.
NOW, AS I UNDERSTAND FROM THE COMMITTEE CHAIR, THAT, UNDER THIS SETTING, THERE WOULD BE BOTH GUARDIAN AD LITEM, GUARDIAN AD LITEM LAWYER AND A LAWYER FOR THE CHILD. IS THAT CORRECT?
WE THINK ALL THE HELP THAT THE JUDGE CAN GET WOULD BE IMPORTANT HERE. YES. WE WOULD BE VERY MUCH IN FAVOR OF HAVING BOTH. I WAS SAYING THAT THE STATUTE, STATUTORY STANDARD IS SUITABILITY. WHAT DOES THAT MEAN? IT IS VERY VAGUE. THE LEGISLATURE REALLY ISN'T PROVIDING A LOT OF GUIDANCE, AND THE CLINICAL EXAMINER IS GOING TO PLAY AN IMPORTANT RULE IN -- ROLE IN DECIDING SUITABILITY HERE AND THAT EXAMINER IS GOING TO BASE HIS OR HER DECISION LARGELY ON INFORMATION THAT THE DEPARTMENT WILL SUPPLY, SOMETIMES INFORMATION THAT MAY BE MISLEADING OR INACCURATE.
WOULD YOU KEEP THAT MICROPHONE IN FRONT OF YOU? YOU ARE TENDING TO COME OVER IT.
PARDON ME. SUITABILITY. HOW IS THAT TO BE MADE? AGAIN, WE ARE CONCERNED THAT IT WILL BE MADE LARGELY ON THE BASIS OF AN EVALUATION BASED LARGELYON INFORDE DEPARTMENT. WE DO NOT THINK A GUARDIAN AD LITEM, BY TRAINING AND EXPERIENCE, 30 HOURS TO BECOME A GUARDIAN AD LITEM, IS LIKELY TO BE AS SKEPTICAL AS QUESTIONING OF THAT REPORT. A LAWYER IS TRAINED IN FACTUAL INVESTIGATION, IS LIKELY TO BE SKEPTICAL, IS GOING TO ASK QUESTIONS ABOUT IT, IS GOING TO HELP TO DEVELOP ALTERNATIVE FACTS.
RIGHT NOW, THE STATUTE PROVIDES THAT THE CHILD GETS A GUARDIAN AD LITEM, AND THEN WHERE APPROPRIATE, AN ATTORNEY AD LITEM. IN PRACTICE, PRIOR TO THE PROPOSED RULE, I KNOW THAT IN MW THERE WASN'T, THE JUDGE DID APPOINT AN ATTORNEY, ACTUALLY, TO ADVOCATE FOR THE CHILD'S EXPRESS WISHES, SO IN PRACTICE, IN THESE CASES, ARE JUDGES, HAVE JUDGES BASICALLY BEEN APPOINTING ATTORNEYS, OR HAVE THEY BEEN NOT APPOINTING ATTORNEYS?
I THINK THE EXPERIENCE VARIES AND I THINK THE GOOD THING ABOUT THE RULE IS IT SETS FORTH A UNIFORM, UNIFIED PROCESS, IN WHICH THE CHILD WILL HAVE THE RIGHT TO COUNSEL.
BUT THIS ISN'T A SITUATION WHERE THERE HAS NEVER BEEN ATTORNEYS APPOINTED FOR CHILDREN IN A SITUATION.
NO. INSERT SITUATIONS, THE COURTS HAVE HAD -- IN CERTAIN SITUATIONS, THE COURTS HAVE HAD THE ABILITY TO APPOINT AN ATTORNEY.
THESE ARE, THIS CLASS ARE GENERALLY TEENAGEERS?
GENERALLY CHILDREN WHO ARE TEENAGERS. THE INFORMATION INDICATES THAT WE ARE TALKING ABOUT 300 OR SO CHILDREN A YEAR, NOT A LARGE NUMBER, A NUMBER THAT WE THINK THE RESOURCES EXIST IN OUR STATE AND OUR LEGAL SYSTEM AND OUR UNIVERSITY CLINICS TO MEET THAT NEED.
NOW, IN MW, IT WASN'T YOUR CLINIC --
ACTUALLY IT WAS THAT ARGUED MW.
WHEN YOU ARE APPOINTED IN A CASE LIKE MW, WHERE, IS THAT DONE A PRO BONO BASIS, OR IS THERE REIMBURSEMENT?
PRO BONO BASIS. HOW IT HAS HISTORICALLY EXISTED. LET ME GET BACK TO THE WAY THIS DECISION IS MADE. AGAIN, WE THINK THAT WE ARE TALKING ABOUT SOMETHING THAT IS A MOMENTENT US DECISION. IF THIS WERE AN INTACT FAMILY, WE WOULD EXPECT TO SEE A LIVE DEBATE FROM THE, BETWEEN THE MOTHER AND FATHER ABOUT WHAT IS BEST. SHOULD WE PUT THE KID ON MEDICATION, SHOULD THE KID BE COMMITTED, SHOULD THE KID GO TO SUMMER CAMP, WHATEVER THE ISSUE MIGHT BE. THESE ARE CHILDREN WHO DON'T HAVE AN INTACT FAMILY, WHO DON'T HAVE A FAMILY, AND SO IN A CERTAIN SENSE, THE COURT PROCESS IS RECREATING THAT DIALOGUE AND DEBATE ABOUT WHAT IS IN THE BEST INTEREST OF THE CHILD, WHAT IS SUITABLE, AND TO MAKE THAT DECISION, WE ARE CONCERNED THAT, IF IT IS JUST A GUARDIAN AD LITEM, THERE IS A HIGH TENDENCY FOR THE COURT TO RUBBER STAMP WHAT THE CLINICAL EVALUATE OR WOULD SAY WITHOUT SUFFICIENT SCRUTINY. BRINGING A LAWYER TO BEAR IS GOING TO ADD ANOTHER VOICE, AN IMPORTANT VOICE TO THE DIALOGUE AND DEBATE, AND IT IS THE CHILD'S VOICE. WE ARE GOING TO HAVE MUCH MORE ACCURACY IN THE PROCESS AND A SENSE OF PARTICIPATION THAT IS ALL-IMPORTANT FOR THE CHILD. A CHILD WHOSE VOICE IS RESPECTED WHO IS TREATED WITH DIGNITY AND RESPECT, WHO HE FEELS A SENSE OF PARTICIPATION, IS GOING TO WHICH MORE LIKELY RESPOND AFFIRM TISM TO ANY HOSPITAL -- AFFIRMATIVELY TO ANY HOSPITALIZATION AND TREATMENT THAT IS ORDERED. IT IS LIKELY TO SET IN MOTION PSYCHOLOGICAL FORCES THAT WILL MAKE TREATMENT MORE EFFECTIVE, AND UNFORTUNATELY, A CHILD WHO DOES NOT HAVE COUNSEL, WHO JUST HAS A GUARDIAN AD LITEM, PERHAPS WHEN THE CHILD IS OPPOSING COMMITMENT AND THE GUARDIAN IS SPEAKING IN FAVOR OF IT. WE FEEL THAT CHILD WILL FEEL BETRAYED. THEIR OWN ADVOCATE IS REPRESENT AGO POSITION THAT IS NOT THEIR POSITION, AND THAT THAT WILL SET IN MOTION FORCES, PSYCHOLOGICAL FORCES THAT MIGHT UNDERMINE TREATMENT, SO FOR A VARIETY OF ACCURACY, AND THERAPEUTIC REASONS, WE FEEL THAT THE RIGHT TO COUNSEL IS ALL-ESSENTIAL HERE.
BUT ALL OF S COUNSEL THAT YOU ARE ADVOCATINGDEO .
WELL, I THINK AT THIS STAGE IT HAS BEEN PRO BONO. I THINK WE HAVE THE PRO BONO RESOURCES WITHIN OUR STATE TO DO THIS. I DON'T KNOW, I THINK THERE IS SOME LEGISLATIVE JUDGMENTS HERE. IN FACT, IT MAY BE THAT THE PUBLIC DEFENDERS OFFICE WILL DO SOME OF THIS. IT MAY BE THAT, AND WE ARE GOING TO HEAR SOMETHING ABOUT A LOAN FORGIVENESS PROGRAM SHORTLY. THERE MIGHT BE OTHER WAY TO SAY PROVIDE FUNDING FOR SOME OF THIS. PERHAPS THE LEGISLATURE WILL VOTE FUNDS. I DON'T THINK THERE IS ANYTHING WRONG WITH PAYING LAWYERS FOR THEIR TIME, BUT AT THIS POINT IT IS PRO BONO, AND I THINK THE ABILITY RIGHT NOW TO DO IT ON A PRO BONO BASIS. OUR CLINIC HAS TWO ISSUES THAT I WOULD LIKE TO RAISE, WITH REGARD TO THE EXISTING RULE. ONE IS THE QUESTION OF WHETHER CHILDREN SHOULD BE GIVEN COUNSEL IN EVERY CASE.
CHIEF JUSTICE: I AM SORRY. YOUR TIME IS UP.
THANK YOU VERY MUCH.
CHIEF JUSTICE: JUDGE CARLIN.
GOOD MORNING. I AM SANDY CARLIN, AND I AM CIRCUIT COURT JUDGE FOR THE ELEVENTH CIRCUIT AND CHAIR OF THE CHILDREN'S COMMISSION. IN THE SHORT PERIOD OF TIME THAT THEY HAVE ALLOTED TO ME I WANT TO SUMMARIZE FIVE POINTS. ONE IS THAT OUR COMMISSION VOTED THAT ALL CHILDREN IN THIS POSITION SHOULD HAVE AN ATTORNEY. NUMBER TWO, THAT THAT ATTORNEY SHOULD FOLLOW THE STANDARDS OF THE ATTORNEY/CLIENT RULE, UNDER ABA STANDARDS. NUMBER THREE, WE HAVE IDENTIFIED IN OUR BRIEF, SUFFICIENT AREAS WHERE THERE ARE ATTORNEYS TO REPRESENT THESE CHILDREN, SUFFICIENT NUMBER. NUMBER FOUR, WE, ALSO, IDENTIFIED THAT THERE IS, THERE MAY BE FUNDING SOURCES THAT ARE AVAILABLE AND NOW CURRENTLY NEW FUNDING SOURCES, AND NUMBER FIVE THAT WE HAVE, AFTER THREE YEARS OF LISTENING TO THE CHILDREN AND THE EXPERTS FROM AROUND THE STATE AND NATIONALLY, COME TO THE CONCLUSION AND RECOMMENDED THAT CHILDREN BE ENTITLED TO KNOW EVERYTHING ABOUT THEIR CASES, THAT THEY BE PROVIDED WITH THE INFORMATION, THAT THEY PARTICIPATE.
SO WHETHER A CHILD AGREES OR DISAGREES WITH THE PLACEMENT, THE CHILD SHOULD BE APPOINTED AN ATTORNEY?
THAT'S CORRECT. WE SEE A DIFFERENCE IN IT, BASED ON ALL OF THE TESTIMONY THAT WE RECEIVED. IN FACT, WE HAVETS OF TESTIMONY FROM CHILDREN, AND ONE PARTICULAR CHILD WHO WAS A MEMBER OF OUR COMMISSION, WHO SURVIVED FOSTER CARE, AFTER 20 PLACEMENTS, OVER A PERIOD OF TIME, SAID MY SUGGESTION IS TO LET THE CHILD PARTICIPATE. IT IS WAYNE-WIN-WIN. YOU INVOLVE THE CHILD IN THE COURTROOM. WE HAVE HEARD THAT OVER AND OVER. I HAPPENED TO HAVE BEEN THE HALVES ON THE -- THAT WAS ON THE CASE WHERE CORINA WAS HELD IN A FACILITY FOR AS MANY YEARS AS SHE WAS. I WAS THE JUDGE THAT ORDERED AN ATTORNEY TO BE APPOINTED TO HER, AND I WAS THE ONE THAT BROUGHT HER TO COURT. THAT HAPPENED MANY, MANY TIMES, AND THOSE ARE THE STORIES THAT WE HEARD WHEN WE WERE ON THE COMMISSION, FROM AT LEAST SEVEN CIRCUIT JUDGES WHO HAVE ALL SERVED IN THIS AREA, AS WELL AS PSYCHOLOGISTS WHO -- PSYCHOLOGISTS WHO TREAT IN THIS AREA.
TELL US ABOUT THE FUNDING SOURCES.
OUR BRIEF COVERS THE AREA OF POSSIBLY THE PUBLIC DEFENDER HAS TO DO IT. WE HAVE THE LEGAL CLINICS AND WE HAVE THE PRO BONO, BUT I THINK THAT THE LEGISLATURE JUST PASSED A STATUTE THAT PROVIDES FOR 7.5 MILLION DOLLARS IN FUNDING UNDER A GUARDIAN AD LITEM PROVISION, BUT IF YOU READ THAT STATUTE, THE LAST SENTENCE INDICATES THAT THE MONEY IS TO GO TO THE CIRCUITS OR THE CIRCUITS ARE SUPPOSED TO DECIDE THE STANDARDS OF PRACTICE OF LAWYERS THAT ARE APPOINTED FOR CHILDREN IN COURT, AND I THINK THAT THAT PROVIDES -- EXCUSE ME.
WHAT BILL NUMBER IS THAT?
I AM SORRY. THE BILL NUMBER IS, NO, EXCUSE ME.
WE CAN GET IT. IT IS THE GUARDIAN AD LITEM BILL.
HERE IT IS. FORGIVE ME.
DON'T WORRY. LET ME ASK YOU ANOTHER --
THE PERSON COMING BEHIND ME WILL TELL YOU WHAT THE BILL NUMBER IS.
YOU SAID THAT THE PRESENT RULE PROVIDES THAT THE JUDGE SHOULD APPOINT COUNSEL, IF THE CHILD OBJECTS, AND YOU ARE ADVOCATING A BROADER, YOU KNOW, IN ANY TIME.
YES.
BUT SINCE THE STATUTE DOES REQUIRE THATEHAVE A D LITEM,S,D SINCE WE ARE APPARENTLY STILL IN A VERY, VERY TIGHT FUNDING AVAILABILITY SITUATION, WHY ISN'T THAT APPROPRIATE IN SITUATIONS WHERE A CHILD DOEOT OPPOSNT?> IT I ENOUG.USL DT KNOWHETHER THAT IS THE APPROPRIATE PLACEMENT. THE DEPARTMENT MIGHT SAY IT IS, AND THE GUARDIANTO, FINDN THEIR BEST INTEREST, BASED ON THEIR SUBJECTIVE JUDGMENT, BASED ON THEIR ROLE OF NG, BUT A LAWYER IS THE ONE WHO IS TRAINED TO BRING OUT ADDITIONAL INFORMATION, TO CROSS-EXAMINE OR TO QUESTION EVEN THE OPINIONS THAT ARE BEING GIVEN. THERE ARE LESS RESTRICTIVE ALTERNATIVES. YOU ARE TAKING CHILDREN, WHO HAVE ALREADY BEEN REMOVED FROM THEIR HOME, AND TAKEN INTO STATE CUSTODY, AND NOW PUTTING THEM IN A MORE RESTRICTIVE STATE CUSTODY.
BEFORE THE RULE WENT INTO EFFECT, YOU AS A CIRCUIT JUDGE, AS WELL AS EVERY CIRCUIT JUDGE IN THE STATE, STILL HAD THE DISCRETION OR HAS THE DISCRETION IN ANY DEPENDENCY CASE, TO, WHERE APPROPRIATE, APPOINT AN ATTORNEY.
YES.
AND SO IN YOUR EXPERIENCE, IS THAT SOMETHING THAT YOU HAVE DONE REGULARLY?
REGULARLY. IN THESE, SPECIFICALLY IN THESE CASES, BECAUSE I HAD CHILDREN WHO CAME IN FRONT OF ME, WHO HAD BEEN IN THESE FACILITIES FOR TOO LONG, AND WHERE THE FACILITY WAS SAYING IT IS NOT AN APPROPRIATE PLACEMENT FOR THE CHILD, BUT THE DEPARTMENT DID NOT HAVE A THERAPEUTIC FOSTER HOME OR A S RESTRICTIVE PLACEMENT AVAILABLE TO THEM, SO THEY LEFT THE CHILD IN THE FACILITY, BUT THAT WAS NOT WHAT THE D NEEDED, AND IN SOME OF THE INSTANCES THAT I SAW, THE CHILD BEGAN TO REGRESS.
CHIEF JUSTICE: THANK YOU. JUDGE CARLTON.
-- THANK YOU, JUDGE CARLIN.
GOOD MORNING. CHRIS LUISA. FIRST I WANT TO ADDRESS THE FUNDING AND SECONDLY THE PROCEEDINGS SO THAT EVERY CHILD SHOULD HAVE A LAWYER IN EVERY CASE AND FINALLY I WANT TO ADDRESS JUSTICEG'S PROTECTION CONCERNS. THE LEG PASSEDND THE JUDICIAL BUDGET HAS $7.5WITH THE SENTENCE THAT JUDGE CARLIN DESCRIBED, WHICH SHOULD ALLOW CIRCUITS TO BE ABLECOME UP WITH THE MONEY FOR THESE 300 CHIL. E OR COST-EFFICIENTAY TOY PRFORREN. A SW SCHOOL HASOPOSED A LOAN REPAYMENT ROGRAM T DEAN UPPORTHE IS ALREADH ONTHIS. HE I THE LENDERS, AND HE IINGHHE OTHEROOLS. SECONDLY,OENT LEGAL INTERESTS AT STAKE, IT S NOT JUST A QUESTION OF WHETHER THE CHILD AGREES WITH A PLACEMENT OR NOT. IT IS NOT JUST QUESTION OF BEST INTERESTS. THERE ARE IMPORTANT LEGAL INTERESTS THAT EVERY CHILD HAS. FOR EXAMPLE, THE CHILD HAS AN INTEREST IN WHETHER THE APPROPRIATE PROFESSIONAL STANDARDS WERE FOLLOWED AND THE APPROPRIATE PROFESSIONAL JUDGMENT EXERCISED.
THE OPPONENTS OF THIS HAVE SPREAD A PARADE OF HORRIBLES THAT YOU ARE GOING TO CHASE OFF EVERY TREATMENT FACILITY AND EVERY PHYSICIAN THAT WILL PARTICIPATE IN THIS TREATMENT. HOW DO YOU SEE THAT CHALLENGE?
I DON'T SEE THAT AS ALL. THIS IS THE WAY THEY MAKE THEIR LIVING. THEY HAVE THE BEDS. WITHOUT THE BEDS, THEY ARE NOT GOING TO MAKE ANY MONEY. IN THE EMORY VERSUS BUSH SETTLEMENT, THERE IS A CORE THAT -- THERE IS SUPPORT FOR THE CORE STANDARDS IN THIS AREA, AND IT WOULD BE AN UNKNOWING WAIVER OF THE CHILD'S LEGAL INTERESTS, IF THEY DIDN'T HAVE A LAWYER IN EVERY CASE. ANOTHER EXAMPLE IS A SPECIAL EDUCATION PLACEMENT. THE LAWYER MIGHT THINK THAT THE CHILD IS BETTER OFF GETTING A SPECIAL EDUCATION PLACEMENT, BUT WITHOUT MANDATORY COUNSEL, THERE WOULD BE A WAIVER IN EVERY SINGLE CASE, AND THAT WOULD NEVER BE ADVANCED TO THE COURT.
NOW YOU ARE EXPANDING WHAT WE ARE HERE FOR, TODAY, WHICH IS THE RESIDENTIAL TREATMENT, WHEN YOU ARE --
NO. I AM SUGGESTING THAT, INSTEAD OF A RESIDENTIAL PLACEMENT, A LESS-RESTRICTIVE ALTERNATIVE MIGHT HAVE, MIGHT BE TO TREAT THE CHILD THROUGH A SPECIAL EDUCATION PROGRAM IN THE SCHOOLS.
SO, OKAY. I JUST WANTED TO MAKE SURE. BUT DO YOU KNOW, ON THE FIRST ISSUE ABOUT THIS FUNDING QUESTION, I AM NOT SURE WHETHER THAT IS SOMETHING THAT, THAT IS THE PRAGMATIC PART, BUT YOU KEEP ON TALKING ABOUT 300 MORE LAWYERS, BUT IT IS MY U THATEAREERTAIN NUMBER OF THESE CHIRP THAT HAVE BEEN REPRESENTED. WE ARE REALLY NOT TALKING ABOUT 100 PERCENT HAVE BEEN UNREPRESENTED.
REPRESENTED, EITHER BY PRO BONO OR INSERT AREAS LIKE MIAMI AND WEST PALM BEACH, THERE ARE FUNDED PROBLING EKTS THROUGH THE FLORIDA -- PROJECTS THROUGH THE FLORIDA BAR FOUNDATION FOR THE MOST PART, THAT HAVE BEEN REPRESENTING THEM, BUT FOR THE REST OF THE STATE THAT IS NOT HAPPENING. AND FINALLY, THE EQUAL PROTECTION CONCERNS, AS JUSTICE HARDING POINTS OUT THERE. IS A PROBLEM WHEN YOU GIVE ADULTS WHO ARE FACING CIVIL COMMITMENT A LAWYER, JUVENILE DELINQUENTS FACING CIVIL COMMITMENT A LAWYER, CHILDREN WHO ARE SINCE AND FIENNES MR. CHIEF JUSTICE
YOUR TIME IS UP. -- SINCE AND FINS MR. CHIEF JUSTICE
YOUR TIME IS UP. THANK YOU.
THERE ARE THREE POINTS WE WOULD LIKE TO MAKE TODAY. I AM SARAH HARRIET BOHR. MAY IT PLEASE THE COURT. THE SECOND IS A BURDEN OF PROOF AND THE THIRD IS, IS APPOINTMENT OF COUNSEL CONSTITUTIONALLY REQUIRED? ON THE TRAINING PART, OUR TRAINING IS OFFERED EVERY TWO WEEKS ON THE MENTAL HEALTH COMMITMENT OF DEPENDENT CHILDREN THE TRAINING INCLUDING PSYCHOLOGICAL PROCEDURE, DIAGNOSIS OF CHILDREN AND CHILDREN'S MENTAL HEALTH NEEDS, THERAPEUTIC CONSIDERATIONS AND THE ETHICAL REPRESENTATION OF CHILDREN. AFTER THIS COURT RULES IN THIS CASE, WELL SUPPLEMENT THE TRAINING WITH INFORMATION REGARDING THE FINAL RULE. THE RULE WILL, WE WILL HAVE A VIDEO AFTER MOCK PRECOMMITMENT HEARING AND A MOCK CONTINUING REVIEW HEARING.
LET ME INTERRUPT YOU JUST FOR A SECOND. WHAT DO YOU SEE THE ROLE OF THE GUARDIAN AD LITEM IN THIS PROCESS.
THE GUARDIAN AD LITEM IS TO PROVIDE INFORMATION REGARDING THE BEST INTEREST OF THE CHILDREN. THAT IS A RULE, THE STATUTORY REQUIREMENT OF THE GUARDIAN. OUR POSITION IS THAT ATTORNEYS WERE ALSO CONSTITUTIONALLY REQUIRED, BECAUSE SPECIFICALLY BECAUSE OF THE FLORIDA CONSTITUTIONAL PROVISION REGARDING ACCESS TO THE COURTS. THE CHILD CANNOT HAVE A MEANINGFUL OPPORTUNITY TO BEARD, WITHOUT AN ATTORNEY THERE ADVOCATING FOR THE CHILD'S N. ALSO REGARDING THE BURDEN OF PROOF, IT IS OUR POSITION THE RULES SHOULD CONTAIN THE CLEAR AND CONVINCING EVIDENCE STANDARD OF PROOF, AND THE DEPARTMENT OF LAW ENFORCEMENT VERSUS REAL PROPERTY, THIS COURT STATED THERE WERE CONSTITUTIONALLY CONSTITUTIONALLY-PROTECTED RIGHTS AT ISSUE. THE STANDARD OF PROOF IS CLEAR AND CONVINCING EVIDENCE. THAT CASE WAS THE TAKING OF AN INDIVIDUAL'S PROPERTY IN A FORFEITURE PROCEEDING. CERTAINLY THE DEPRIVING AFTER CHILD OF LIBERTY IS CERTAINLY ON A PAR WITH TAKING PROPERTY, AND CLEAR AND CONVINCING EVIDENCE SHOULD BE THE STANDARD OF PROOF. IN THE IN RE BEVERLY CASE, IN 1977, THIS COURT HELD THAT THE STANDARD OF PROOF IN CIVIL COMMITMENT PROCEEDINGS IS CLEAR AND CONVINCING EVIDENCE, AND THAT CASE WAS DECIDED WITH APPROVAL BY THE SUPREME COURT OF THE UNITED STATES, IN THE ADDINGTON VERSUS TEXAS CASE IN 1979, AND THAT CASE WAS A VERY INTERESTING CASE, WHERE THEY TALK ABOUT THE DIFFERING STANDARDS OF PROOF AND EXPLAIN THAT, BECAUSE OF THE RISK OF ERRONEOUS, OF ERRONEOUS COMMITMENT THAT, IT IS IMPORTANT THAT THERE BE A CLEAR AND CONVINCING EVIDENCE STANDARD OF PROOF NOT JUST A PREPONDERANCE OF THE EVIDENCE. THANK YOU.
CHIEF JUSTICE: THANK YOU VERY MUCH. MISS GIEVERS.
THANK YOU. GOOD MORNING. IN THE VERY BRIEF TIME THAT I HAVE, I WANT TO TAKE, PERHAPS, A DIFFERENT VANTAGE POINT. NUMBER ONE, THE SYSTEM, AS IT HAS BEEN LAID OUT ON THE STATUTE BOOKS, HAS NOT WORKED. THE STATUTES HAVE SAID FOR YEARS THAT, EVERY CHILD IN THE STATE'S FOSTER CUSTODY MUST HAVE A GUARDIAN AD LITEM. THAT HAS BEEN IGNORED. IT HAS ONLY BEEN RECENTLY WE HAVE APPROACHED THE 50 PERCENT MARK. USING RESPECT, AND RELYING -- USING AND RELYING ON THE DISCRETION FROM OUR DEPENDENCY JUDGES, IT IS CLEAR FROM THE COMMENTS THAT HAVE BEEN FILED WITH THE DEPENDENCY JUDGES, THAT IT IS CLEAR IN THE COURT THEY CAN TELL WHEN THE CHILD NEEDS A LAWYER, AND THE TRAGEDY OF THAT MISPERCEPTION COULD NOT HAVE BEEN MORE OBVIOUSLY UNDERSCORED BY THE FACT THAT ONE OF THOSE JUDGES WHO FELT THAT, BASED ON THEIR EXPERIENCE ON THE BENCH, THEY KNEW WHEN CHILDREND LAWYERS, WASTISE NHERIAL YEAH WILSON CASE. THE -- IN THE RILYA WILSON CASE. JUDGE BETANCOURT, THE FIRST TIME THE JUDGE FOUND THE LITTLE GIRL WAS MISSING WAS WHEN THEY SPENT SIX DAYS LOOKING AT A VARIETY OF PLACES TO FIND OUT IF THAT IS WHERE THE CHILD WAS. WE HAVE FOUND THAT CHILDREN AS EARLY AS THREE HAVE BEEN PUT AT LAKESIDE ALTERNATIVES, A MENTAL HEALTH FACILITY IN ORLANDO, AND KEPT THERE FOR UP TO TEN MONTHS, NOT BECAUSE THE CHILDREN'S MENTAL STATUS OR NEEDS WARRANTS THAT, BUT BECAUSE IT WAS AN EASY PLACE FOR THE PLACEMENT OFFICE TO SAY GO PUT THE CHILDREN THERE. WE HAVE GOT TO REMEMBER THE CHILDREN. THIS RULE DOES NOT ADDRESS THE BROAD SPECTRUM. I RECOGNIZE AND RESPECT THAT, BUT TO THE EXTENT WE ARE TALKING ABOUT CHILDREN WHO ARE THE PAWNS REALLY, LIKE PAWNS IN THE SITUATION BETWEEN PARENTS WHO HAVE ALLEGEDLY ABUSED OR NEGLECTED THEM, AND THE DEPARTMENT THAT IS TRYING TO MODIFY THE PARENTS' BEHAVIOR. THE CHILDREN HAVE NO CONTROL OVER HOW THEY GET OUT. IT IS ESSENTIAL THAT THIS COURT, AS QUICKLY AS POSSIBLE, AT LEAST ADOPT THE RULE THAT GIVES THE BRIGHT LINE, WHEN A CHILD DOES NOT WANT TO BE IN A PLACEMENT OR DOES NOT EXPRESS APPROVAL OF BEING IN THAT PLACEMENT, THAT THAT CHILD HAVE AN ATTORNEY. I APPRECIATE YOUR ATTENTION TO THIS, AND THE SOONER THE BETTER. THANK YOU.
CHIEF JUSTICE: THANK YOU, MISS GIEVERS. MISS KRAMER
MAY IT PLEASE THE COURT. MY NAME IS THERESA KRAMER AND I AM HERE TO REPRESENT THE MINORITY RULES OF THE COMMITTEE. I AM NOT REPRESENTING THE DEPARTMENT OF CHILDREN AND FAMILIES AND IN FACT ARE NO LONGER EMPLOYED BY THE DEPARTMENT OF CHILDREN AND FAMILIES, SO I HOPE THAT CLARIFIES ANY ISSUE WITH THAT. STATEMENT, MY FIRST CONCERN, IS THE WAY OR THE SSG ADOPTED. THE RULE, ITSELF, THE RULES ARE DESIGNED TO ADDRESS PROCEDURAL ISSUES. AND POSSIBLY CONSTITUTIONAL ISSUES. IN THIS PARTICULAR CASE, THIS COURT, ITSELF, HAS SPECIFICALLY STATED, NUMEROUS TIMES IN THEIR OPINION, THAT THIS IS NOT A CONSTITUTIONAL ISSUE BEFORE THE COURT, THAT THIS COURT IS MAKING NO CONSTITUTIONAL RULING ON THE CHILD'S RIGHT TO A PREPLACEMENT HEARING OR TO LEGAL COUNSEL IN THIS TYPE OF A HEARING. THE SECOND BASIS FOR THIS RULE WOULD BE TO IMPLEMENT A PROCEDURE IN ORDER TO COMPLY WITH A STATUTORY MANDATE THAT A PARTICULAR PROCESS BE FOLLOWED. OR THAT A PARTICULAR RIGHT THAT THE LEGISLATURE HAS GRANTED TO THESE CHILDREN, BE PROTECTED. I WANT TO EMPHASIZE THAT THE LEGISLATURE, IN ADOPTING THE 2000 LEGISLATIVE SESSION, SPECIFICALLY STATED THAT THERE WAS NO REQUIREMENT FOR A PREPLACEMENT HEARING AND SPECIFICALLY STATED THAT THE CHILD WAS TO BE REPRESENTED BY A GUARDIAN AD LITEM. THE LEGISLATURE, AFTER HEARING OF THIS COURT'S DECISION THAT WAS ISSUED OCTOBER 25 OF 2001, INDICATING THAT THIS COURT WAS GOING TO ADOPT A RULE REQUIRING A PREPLACEMENT HEARING, CAME BACK WITH LEGISLATION. THEY ADOPTED SENATE BILL 632, WHICH SPECIFICALLY STATES, AND I AM READING FROM THE TITLE OF THAT, THAT THEY ARE AMENDING 39.407 OF THE FLORIDA STATUTES, TO CLARIFY, AND IT SAYS CLARIFYING THAT THE DEPARTMENT OF CHILDREN AND FAMILIES SERVICES MAY PLACE A CHILD WHO IS IN ITS CUSTODY, IN A RESIDENTIAL TREATMENT CENTER WITHOUT PRIOR APPROVAL OF THE COURT. SO THEY ARE TRYING TO MAKE CLEAR TO THIS COURT AND TO OTHERS, THAT THE LEGISLATURE IS NOT PROVIDING THAT RIGTOE CHILDREN, SO WE DON'T HAVE A CONSTITUTIONAL ISSUE HERE, THAT THIS COURT HAS MANDATED. WE DON'T HAVE A STATUTORY PROVISION FOR A HEARING THAT IS PROVIDED. IN FACT, THE --
ARE YOU NOW REVISITING THE PREPLACEMENT HEARING ISSUE?
I AM DISCUSSING PREPLACEMENT AT THIS TIME.
I THOUGHT, BECAUSE MAYBE I MISUNDERSTOOD. I THOUGHT THE ONLY DISPUTE WAS OVER THE APPOINTMENT OF THE ATTORNEY. SO YOU ARE GOING TO ADDRESS BOTH POINTS?
YES, YOUR HONOR. THE MINORITY WAS VERY FIRM ON THE FACT THAT THEY FELT THAT THERE WAS NO BASIS FOR THIS COURT TO ADOPT A RULE ON, DEMANDING EITHER A PREPLACEMENT HEARING FOR THE CHILD OR LEGAL COUNSEL FOR A CHILD. THEY SPECIFICALLY FELT THAT BOTH OF THOSE WERE SUBSTANTIVE RIGHTS NOT PROCEDURAL.
BEFORE, NOBODY DOUBTS THAT THE TRIAL COURT HAS THE AUTHORITY TO APPOINT AN ATTORNEY TO REPRESENT THE CHILD IN A DEPENDENCY PROCEEDING.
THAT IS CORRECT. THE TRIAL COURT HAS THAT DISCRETION AND THAT DISCRETION SHOULD BE LEFT TO THAT TRIAL COURT, NOT MANDATED THAT ONE BE APPOINTED IN EVERY SINGLE CASE. BUT THE LEGISLATURE HAS SPECIFICALLY STATED THAT THEY WANT THE DECISION ON WHETHER A CHILD IS PLACED IN A RESIDENTIAL TREATMENT CENTER, TO BE LEFT TO THE PROFESSIONALS. THEY ARE NOT LEAVING IT SOLELY TO THE DEPARTMENT. THEIR SPECIFIC STATUTE, WHICH SOMEONE STATED WAS UNCLEAR OR -- IT IS VERY, ACTUALLY, UNAMBIGUOUS. IT IS A VERY CLEAR PROCEDURE, THAT THE DEPARTMENT, IF THEY FEEL THAT RESIDENTIAL TREATMENT CENTER PLACEMENT IS NECESSARY FOR THE CHILD, THAT THAT PARTICULAR DEPARTMENT CASEWORK ERROR DECISION-MAKER MUST FOLLOW THROUGH AND HAVE A QUALIFIED EVALUATE OR, WHO IS EITHER A PSYCHIATRIST OR A PSYCHOLOGIST THAT SPECIALIZES IN CHILDREN'S NE,O EVALTHED AND TO MAKE THE RECOMMENDATION. IF THEY DO NOT RECOMMEND RESIDENTIAL TREATMENT HAD, THAT CHILD CANNOT GO IN. THEY CANNOT GO IN.
HOW QUICKLY DOES THAT DETERMINATION HAVE TO BE MADE?
THAT HAS TO BE MADE BEFORE THE CHILD IS PLACED.
BUT HOW, IN WEEKS OR DAYS, HOW LONG?
IT THERE, IS NO SPECIFIC TIME FRAME IN THE STATUTE. IF THE DEPARTMENT PERSONNEL FEELS THAT THE CHILD HAS A MENTAL HEALTH NEED, THEN THEY REFER THAT TO THE AGENCY.
IS THAT CHILD, UNTIL THEN, DOES THE CHILD HAVE AN OPPORTUNITY TO CHALLENGE THE DECISION OF THE DEPARTMENT?
IT IS, THE CHILD DOES NOT HAVE THE OPPORTUNITY TO CHALLENGE THE DECISION TO ASK FOR AN INDEPENDENT QUALIFIED EVALUATION OF THE CHILD.
WOULD YOU COME BACK --
IS IT YOUR POSITION THAT, THE ONLY TIME AN ATTORNEY OR THE ONLY TIME THE COURT GETS INVOLVED, IS WHEN THERE IS A DETERMINATION THERE NEEDS TO AND PLACEMENT, A PETITION IS FILED, AND THEN THE MATTER COMES TO COURT.
NO. OUR POSITION, AND THE POSITION OF THE LARGE NUMBER OF THE COMMITTEE MEMBERS, IS THAT THE COURT GETS INVOLVED, AFTER THE CHILD IS PLACED, IF, AS THEY REVIEW THE PLACEMENT AND REVIEW THE TERMINATIONS OF THE ONGOING TREATMENT.
CHIEF JUSTICE: JUSTICE ANSTEAD HAD A QUESTION.
YES.
COULD YOU TAKE JUST A MINUTE OR TWO, TO REFRESH US, WITH REFERENCE TO THE CONSTITUTIONAL DEBATE, AND THAT IS THE, REALIZING THAT WE HAVE GONE OVER THIS TERRITORY LOTS OF TIMES BEFORE, BUT I WOULD APPRECIATE IT, IF YOU WOULD REFRESH US, IN THIS SEEMING IN GONG GRUT THAT OBVIOUSLY A -- INCONGRUITY THAT OBVIOUSL AN ADULT PERSON WHO IS BEING INVOLUNTARILY COMMITED TO A RL T FACILITY BECAUSE OF MENTAL PROBLEMS, BUT OBVIOUSLY UNDER DUE PROCESS WOULD HAVE A RIGHT TO AN ATTORNEY AND A FULL PANOPLY, AND YET HERE, THAT WE SEEM TO RELY 'THIS INITIAL DECISION -- TO RELY ON THIS INITIAL DECISION OF THE STATE STEPPING IN, AND THIS WIDE VARIETY OF DEPENDENCY SITUATIONS MOST OF WHICH HAVE NOTHING TO DO WITH THE MENTAL HEALTH ISSUE OF THE CHILD.
YES, YOUR HONOR.
WHAT IS THE CONSTITUTIONAL --
AS FAR AS THE CONSTITUTIONAL ISSUE-.
-- ANALYSIS THAT DISTINGUISHS THOSE TWO SITUATIONS?
THE CONSTITUTIONAL ANALYSIS WAS VERY WELL STATED, IN THE PARHAM CASE SETTLED BY THE UNITED STATES SUPREME COURT, WHEN THEY CAME IN AND REVIEWED THIS VERY SAME ISSUE THAT HAD OCCURRED IN THE STATE OF GEORGIA. AND THEIR STATEMENT, THEIR FINDING IN THAT CASE WAS THAT THE GEORGIA PROCEDURE THAT, WHEN THE STATE WANTED TO PLACE A CHILD FOR MENTAL HEALTH TREATMENT, WHEN THE CHILD WAS COMMITTED TO THE CARE OF THE STATE AGENCY FOR PROTECTION, THAT THE REVIEW BY THE TREATING PSYCHOLOGIST OR ADMITTING PSYCHOLOGIST OR PSYCHIATRIST IN THE STATE FACILITY, WAS SUFFICIENT DUE PROCESS TO MEET ANY CONSTITUTIONAL REQUIREMENT, THAT THIS IS NOT AN INVOLUNTARY PROCEDURE. THIS IS ACTUALLY A VOLUNTARY PROCEDURE, IN THAT THE ENTITY WHO IS CHARGED WITH PROTECTION AND CARE OF THAT CHILD, IS MAKING THIS DECISION TO PLACE THE CHILD, AND IN DOING SO, THAT IS A VOLUNTARY COMMITMENT, NOT AN INVOLUNTARY COMMITMENT. WHAT WELL ARE CHOOSING TO DO IN THIS SITUATION, IS WE ARE MIXING APPLES AND ORANGES. WE ARE STATING THAT, WHERE A PARENT MAKES A DECISION TO PLACE A CHILD, THAT THEY DON'T HAVE TO HAVE AN ATTORNEY APPOINTED FOR THE CHILD OR HAVE A CONTESTED COURT HEARING CONCERNING THE PLACEMENT. THEY CAN PLACE THE CHILD. THE U.S. SUPREME COURTS STATING, THAT THE STATE ACTING AS THE PARENT, HAS THOSEE ELT ACTING, AND THAT THERE IS NO FURTHER DUE PROCESS REQUIRED, THEN THE REVIEW -- THAN THE REVIEW OF THE ADMITTING PHYSICIAN. OUR STATE LEGISLATURE HAS GONE FURTHER THAN THAT AND SAID WE ARE NOT GOING TO RELY ONLY UPON THE INSTITUTION'S ADMISSION. WE ARE GOING TO RELY, ASK FOR AN INDEPENDENT QUALIFIED EVALUATE OR, WHO HAS NO RELATION TO THE ADMITTING FACILITY, WHO IS NOT APPOINTED BY DEPARTMENT OF CHILDREN AND FAMILIES BUT INSTEAD BY THE AGENCY FOR HEALTHCARE ADMINISTRATION, AND THAT INDIVIDUAL IS THE ONE WHO IS BEST SUITED TO MAKE THAT DECISION FOR THE CHILD. I AM OUT OF TIME, YOUR HONOR.
CHIEF JUSTICE: THANK YOU. MS. WELLS.
GOOD MORNING. LINDA WELLS ON BEHALF OF THE FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES, AND A NUMBER OF MEMBERS OF THE DEPENDENCY COURT IN MIAMI-DADE COUNTY. OF ALL OF THE PEOPLE WHO ARE GOING TO APPEAR BEFORE YOU TODAY I AM STANDING HERE, REPRESENTING THE PEOPLE WHO REALLY HAVE TO LIVE WITH THIS RULE. THIS ISN'T ACADEMIC WITH US. THIS IS REALITY. WE ARE CHARGED WITH THE PHYSICAL ACTUAL CARE OF THIS GROUP OF CHILDREN, AND I WANT TO MAKE IT VERY CLEAR ABOUT THE POPULATION OF CHILDREN WE ARE TALKING ABOUT AND THE KIND OF FACILITY WE ARE PUTTING THE CHILDREN IN, AND INDIRECTLY, BY DOING SO, ADDRESS JUSTICE HARDING'S QUESTION ABOUT DUE PROCESS. WE ARE TALKING PRIMARILY ABOUT TEENAGERS WHO VERY SERIOUS PROBLEMS, MENTAL ILLNESS PROBLEMS, WHO HAVE DISRUPTIVE FROM MULTIPLE PLACEMENTS BECAUSE THEY RUN AWAY FROM HOME, BECAUSE THEY ARE TRUANT FROM SCHOOL, BECAUSE THEY ARE SUSPENDED FROM SCHOOL, BECAUSE THEY ARE EXPELLED FROM SCHOOL, BECAUSE WE PROVIDED EVERY KIND OF LESS RESTRICTIVE THERAPY WE CAN THINK OF IN EVERY OTHER SETTING WE CAN THINK OF, AND BECAUSE THEY ARE BUSY RUNNING AWAY AND NOT PARTICIPATING IN, IT THEY ARE NOT GETTING THEIR THERAPY AND NOT GETTING EDUCATED. HAVE RECOGNIZED IN THE DEPARTMENT, IS A PROBLEM POPULATION THAT WE SIMPLY MUST ADDRES.E,S WUS. THEY HAVE INCREASED MEDICAID FUNDING, TO PROVIDE RESIDENTIAL TREATMENT CENTER TREATMENT FOR THESE, THIS POPULATION. PLEASE --
WHY WOULDN'T YOU WANT TO HAVE ALL THE HELP THAT YOU CAN GET. THAT IS REGARDLESS OF WHAT THE NEWSPAPERS ARE, IT SEEMS TO ME THAT THE RANGE IS STILL NOT SOME EXORBITANT NUMBER OF PEOPLE OUT THERE, SO WHY WOULDN'T THE DEPARTMENT WANT TO HAVE ALL OF THE HELP THAT IT COULD GET AND ALL OF THE PROCEDURES THAT WOULD JUST BE HELPFUL, IN TERMS OF ONE OF THE WONDERFUL SPECTACLES OF A COURTROOM SETTING LIKE THIS, IS THAT WE HAVE ALL KINDS OF ADULT HERE, WHO ARE VERY PASSIONATE ABOUT FLORIDA'S CHILDREN, BUT I AM HAVING DIFFICULTY, REALLY, SAYING WHY THE DEPARTMENT WOULDN'T WANT ALL THE HELP IT COULD GET, WHETHER IT IS FROM THE JUDICIARY, WHETHER IT IS FROM THE LAW SCHOOLS, OR WHEREVER, AND ESPECIALLY FOR THIS VERY NARROW AND SELECT GROUP OF CHILDREN THAT NEED THE MOST HELP, SO I AM HAVING A LOT OF DIFFICULTY ON A POLICY BASIS, UNDERSTANDING WHY THE DEPARTMENT WOULD NOT WANT THIS AND ACTUALLY INVITE IT, SO THAT WHEN ANYBODY LOOKED AT A DECISION FOR AN INVOLUNTARY PLACEMENT, THE DEPARTMENT, FOR ONE THING, COULD SAY, WELL, THIS WAS REALLY TESTED, AND IN FACT, THIS, IT WAS A COURT ORDER, WITH A CHILD REPRESENTED BY A LAWYER, AND THERE WAS A GUARDIAN AD LITEM, SO THERE CAN BE NO DOUBT THAT EVERYBODY FOUND THAT THIS WAS IN THE BEST INTEREST OF THAT CHILD? EXPLAIN TO ME WHY THE DEPARTMENT WOULD NOT WANT THIS RESOURCE AVAILABLE?
I WILL, YOUR HONOR. BECAUSE HISTORY HAS PROVED THAT THIS EXTRA INVOLVEMENT CREATES AN INSURMOUNTABLE BARRIER, AND IT IS ACTUALLYT HELPFUL, BUT IT IS MORE HARMFUL THAN IT IS HELPFUL, AND LET ME EXP TOU WHY. S RIGHT ON THE VERGE OF GETTING TO WHY THIS RULE WILL POSE INSURMOUNTABLE BARRIERS TO GETTING THIS POPULATION INTO THIS LEVEL OF CARE. FIRST OF ALL, A RESIDENTIAL TREATMENT CENTER IS MORE THAN A LOCK FACILITY. BY DEFINITION, IT IS A THERAPEUTIC GROUP HOME. IT IS UNLOCKED FACILITIES, AND VERY FEW LOCKED FACILITIES. IF YOU, AS A PARENT, IF I, AS A PARENT, WANT TO TAKE MY CHILD OR YOUR CHILD TO A RESIDENTIAL TREATMENT CENTER, AND THAT CHILD IS IN MY CAR, KICKING, SCREAMING AND YELLING, GOING NO, MOM, I DON'T WANT TO GO, MY RIGHT AS A PARENT, HAVING THE BEST INTEREST OF THE CHILD IN MIND, CAN DRIVE THAT CHILD, TODAY, YESTERDAY, AND TOMORROW, TO A RTC, AND ON NOTHING MORE THAN MY SIGNATURE, WITHOUT APPOINTMENT OF AN ATTORNEY FOR MY CHILD, WITHOUT A COURT SAYING, YES, MOM, YOUR JUDGMENT IS GOOD. YOU CAN PUT THIS CHILD IN HERE. I AM GOING TO GET TO WHY WE WOULDN'T WANT THE HELP. I CAN SIGN MY CHILD INTO A RESIDENTIAL TREATMENT CENTER TODAY. NOW, THE DEPARTMENT IS NOT A PARENT. WE MAKE ONLY SUBJECT A CHILD, AND WE ARE GETTING TO WHERE WE CAME TO MW AND WHY THIS ISN'T GOING TO BE HELPFUL. WE CAN ONLY TAKE DEPENDENT CHILDREN AND GET THEM THAT SAME LEVEL OF TREATMENT THAT YOU, AS A PARENT, CAN GET ON NO MORE THAN YOUR SIGNATURE. WE CAN'T DO THAT ON A SIGNATURE. WE CAN ONLY DO IT AS CHAPTER 39 PROVIDES. CHAPTER 39 NOW PROVIDES THAT AN INDEPENDENT, AN INDEPENDENT, NOT A DOCTOR, NOT A COUNSELOR, NOT A CASEWORKER, NOT A DEPARTMENT LAWYER, BUT A DOCTOR OR A TRAINED PSYCHOLOGIST WILL SAY, YES, THIS CHILD NEEDS THIS LEVEL OF CARE, AND THAT CHILD, JUST LIKE YOUR COMMUNITY PARENT, WILL THEN GO INTO THE TREATMENT FACILITY.
I THOUGHT THERE HAS TO BE AN AMENDMENT TO THE CASE PLAN.
THERE MAY NEED TO BE AN AMENDMENT TO THE CASE PLAN, ULTIMATELY, IN ORDER TO CHANGE, BUT THE GOAL HERE, PROBABLY FOR THE CHILD,O CHANGE. IT IS JUST GOING TO BE THE LEVEL OF TREATMENT THAT IS GOING TO CHANGE.
BUT IMGT. THERE WAS NO QUESTION THAT, WHY THIS IS NOT LIKE A PARENT WITH A WHAT THEY ARE GOING TO DO WITH THE CHILD. DCF MUST GET AN AMENDMENT TO THE CASE PLAN, WHICH HAS TO BE APPROVED BY THE CIRCUIT COURT. AND SO NOW WE ARE JUST TALKING ABOUT THE PROCEDURES THAT ARE GOING TO BE FOLLOWED --
BUT NOT BEFORE PLACEMENT NECESSARILY, YOUR HONOR. THE CASE PLAN --
I THINK THAT IS WHERE THE MW DECISION SAID THAT THERE SHOULD BE A MEANINGFUL OPPORTUNITY OF THE CHILD TO BE HEARD BEFORE THIS TAKES PLACE.
CORRECT.
NOW WE ARE GOING TO REVISIT MW?
AT THE TIME MW WAS DECIDED AND THE MAIN ARGUMENT IN MW, WAS THAT, AT THE TIME, TO SUBJECT A CHILD TO THIS EXTRAORDINARY LEVEL OF CARE, WE HAD TO GET A COURT ORDER. THE STATUTE WAS, THEN, AMENDED, NOW, TO PERMIT US TO GET THIS LEVEL OF CARE ON AN INDEPENDENT EVALUATION, BUT I WANT TO ANSWER JUSTICE ANSTEAD'S QUESTION. NOW WE HAVE A PROCEDURE THAT THE LEGISLATURE HAS GIVEN US THAT SHOULD BE COMPARABLE TO THE RIGHTS THAT A PARENT HAS, TO PUT A CHILD IN A RESIDENTIAL TREATMENT CENTER. WE ALL KNOW THAT WE ARE TALKING, HERE, AND THIS PROCEDURE THAT YOU HAVE PROPOSED DOES TWO THINGS. FIRST, IT REQUIRES THE APPOINTMENT OF AN ATTORNEY, AND THE ONLY WAY YOU ARE GOING TO GET ATTORNEYS IN HERE, I THINK WE ALL HAVE TO AGREE, IS IT IS GOING TO BE A PRO BONO ATTORNEY, BECAUSE THERE IS NO FUNDING FOR GOVERNMENT LAWYERS, AND THERE IS A SEPARATION OF POWERS ISSUE THAT ARREARS ITS UGLY HEAD THERE IN ANY EVENT. I HAVE TO TELL THE COURT, BECAUSE I HAVE TO LIVE WITH THIS RULE, I COVER MIAMI-DADE AND THE KEYS. I HAVE NOT BEEN ABLE TO GET AN ATTORNEY TO REPRESENT DEPENDENT CHILDREN IN ANYTHING FOR THREE YEARS, IN MARATHON KEY AND IN PLANTATION KEY, WHERE DEPENDENCY COURTS SIT. WHERE, AND YOUR RULE SAYS IN FIVE DAYS OF GETTING THE INDEPENDENT EVALUATION, WE HAVE TO HAVE A HEARING, AND THE ATTORNEY AND THE GUARDIAN AD LITEM MUST APPEAR. OR I AM NOT PLACING THAT CHILD. I HAVE A DESPERATELY ILL CHILDN MY HAND, AND IF A LAWYER DOESN'T SHOW UP IN FIVE DAYS, I CAN'T PLACE THAT CHILD.WHEGO GET ARO BONO LAWYER IN BACK ALLAH COUNTY LEVY COUNTY, HENDRY COUNTY -- THE LEGISLATURE DIDN'T PLACE THAT HURDLE ON ME BEFORE I CAN PLACE A CHILD. AS A PRACTICAL MATTER, I AM NOT GOING TO BE ABLE TO PLACE THIS CHILD. I HAVE FOSTER HOMES. THESE CHILDREN WON'T STAY IN THEM. THEY WON'T GO TO SCHOOL.
SO YOUR RESPONSE IS ESSENTIALLY, YOU ARE NOT OPPOSED TO THE TESTING OF THE CORRECTNESS. IT IS PURELY A PRACTICAL PROBLEM. THAT IS WHAT I HEAR YOU SAYING.
WE DO, BUT THE WAY WE HAVE TO SDWI DWI UP OUR TIME HERE IS I HAVE TO ADDRESS THE VERY PRACTICAL RAMIFICATIONS. WE DON'T THINK THE APPOINTMENT AFTER ATTORNEY, REALLY, IS IN THE BEST INTEREST OF THE CHILD. YOU ARE APPOINTING AN ATTORNEY IN THE CASE, BECAUSE THIS COURT HAS DECIDEDED THAT THERE NEEDS TO BE A PREPLACEMENT HEARING, AND FOR THAT PREPLACEMENT MEANING, YOU OBVIOUSLY HAVE TO HAVE AN ATTORNEY TO REPRESENT THE CHILD. THAT IS HOW WE GET TO THE ATTORNEY PART HERE, BUT THE PROBLEM WITH HAVING A PREPLACEMENT HEARING RAISES ANOTHER CONUNDRUM FOR THE DEPARTMENT. THE INDEPENDENT EVALUATORS WHO DO, THIS AND I DON'T GET ANY PLACEMENT WITHOUT AN INDEPENDENT EVALUATE OR, IS NOT A DEPARTMENT EVALUATE OR. THEY ARE RECRUITED AND PAID OUT OF MEDICAID FUNDS BY ACA, A DIFFERENT AGENCY.
THAT MAY BE EVEN MORE REASON TO TEST IT.
ACA HAS BEEN LOOKING FOR INDEPENDENT EVALUATORS, NOW, FOR TWO YEARS. THOSE EVALUATORS, BY STATUTE, CANNOT BE CONNECTED IN ANY MANNER WITH A RESIDENTIAL TREATMENT CENTER, SO IF MRS. LUISA GETS UP HERE AND SAY THEY CERTAINLY HAVE THE FACILITY TO PLACE THAT CHILD. THAT IS NOT TRUE. THOSE MR. CHIEF JUSTICE
PLEASE RESPECT THE TIME OF OTHERS. THANK YOU.
THANK YOU.
MAY IT PLEASE THE COURT. I AM NANCY VIFER, A LONG-TERM -- I AM NANCY SCHLEIFER, A LONG TIME CHILD ADVOCATE AND I AM SPEAKGDE COMMENT FROM THE JUDGE OF THE 11th JUDICIAL CIRCUIT. THE ISSUE ISN'T WHETHER THESE CHILDREN SHOULD HAVE REPRESENTATION. THE ISSUE IS THE KIND OF REPRESENTATION, WHAT KIND OF QUALITY OF REPRESENTATION, WHETHER IT SHOULD BE BY A GUARDIAN AD LITEM, AND BY THE WAY I HAVE TO STRAIGHTEN ONE ISSUE OUT. IN THE ELEVENTH CIRCUIT, GUARDIAN AD LITEMS ARE ALWAYS REPRESENTED BY VERY COMPETENT COUNSEL IN COURT. THEY ARE VERY WELL TRAINED AND ARE CONSPIRACYED BY OLDER -- ARE SUPERVISED BY OLDER ATTORNEYS AND HAVE BEEN DOING IT FOR YEARS. YOU ARE LOOKING AT A GUARDIAN PAIRED WITH AN ATTORNEY.
IN ALL OF THESE CASES YOU ARE TELLING THIS COURT THAT THERE IS A GUARDIAN AD LITEM WITH AN ATTORNEY IN EVERY ONE OF THE CASES, IS THAT WHAT YOU ARE TELLING ME?
WHERE THERE IS A GUARDIAN IN OUR JURISDICTION, THERE IS A STAFF ATTORNEY, SO THAT THE, AND THAT STAFF ATTORNEY REPRESENTS THE BEST INTERESTS OF THE CHILD.
THE STAFF ATTORNEY FROM WHAT AGENCY?
GUARDIAN AD LITEM PROGRAM HAS ITS OWN STAFF ATTORNEYS IN THE ELEVENTH CIRCUIT.
AND THEY ARE REPRESENTING THE GUARDIAN.
THEY ARE REPRESENTING THE GUARDIAN AD LITEM PROGRAM. THE GUARD JANS.
WHAT -- THE GUARDIANS --
WHAT ARE THE STATISTICS THERE. HOW MANY LAWYERS IN THE ELEVENTH CIRCUIT, DO YOU HAVE GUARDIAN AD LITEMS? HOW MANY LAWYERS DO YOU HAVE ON THE STAFF, FIRST OF ALL?
I THINK THERE ARE SEVEN ATTORNEYS ON STAFF, AND EX-OFFICIO ME, BECAUSE I AM NO LONGER ON STAFF, BUT I DO PARTICIPATE AND TAKE CALLS AND GIVE ADVICE ALL THE TIME. THEY ARE COURT ATTORNEYS. THERE ARE TWO ATTORNEYS PER COURT, PLUS AN ADMINISTRATIVE ATTORNEY.
HOW MANY THOUSANDS OF DEPENDENCY CASES ARE PENDING AT ANY GIVEN TIME, IN THE ELEVENTH CIRCUIT?
AT ANY GIVEN TIME, I DON'T KNOW. IT IS MY UNDERSTANDING THAT THERE IS SOMEWHERE, AND MS. WELLS MIGHT BE ABLE TO ANSWER THIS BETTER THAN ME, SOMEWHERE IN THE ORDER OF BETWEEN 6,000D 8,000 IN THE SYSTEM.
SO SEVEN LAWYERS FOR THE GUAM. > GUARDIAN AD LITEM HAS BETWEEN 3,000 AND 4,000 CHILDREN.
HOW MANY DEPENDENCY JUDGES ARE THERE IN THE ELEVENTH CIRCUIT?
THERE ARE, I BELIEVE THERE IS FOUR AT THE PRESENT TIME.
AND THOSE ARE FOUR THAT FILED PAPERS IN THIS COURT?
THREE OF THOSE FILED PAPERS IN THIS COURT. PLUS JUDGE GLADSTONE, WHO, AS THIS COURT WELL KNOWS, STARTED, HELPED START THE GUARDIAN AD LITEM PROGRAM. THE COURT, ALSO, OUR COURT, ALSO HAS NO OBJECTION TO HEARINGS, AS THIS COURT KNOWS. IN MW THERE CERTAINLY WAS A HEARING SCHEDULED. IT HAS A REAL CONCERN AS TO THE PROCEDURAL OBSTACLES IN THOSE HEARINGS.
GOING BACK TO THE MW CASE, THE JUDGE IN THAT CASE HAD APPOINTED --
ABSOLUTELY.
-- AN ATTORNEY.
ABSOLUTELY.
SO WE ARE REALLY NOT TALKING, AND THAT ATTORNEY HAD REPRESENTED THE CHILD FOR SOME PERIOD OF TIME.
THE JUDGES WILL APPOINT ATTORNEYS, WHEN THIS EVENING THAT A CHILD IS IN NEED OF AN ATTORNEY. FOR INSTANCE --
WHAT WAS IT ABOUT MW THAT CAUSED --
THE CHILD HAD BEEN IN CARE FOR A LONG TIME. THE CHILD WAS OLDER. THE CHILD HAD, MAY HAVE HAD OBJECTIONS HERE AND THERE. HE WAS A RUNAWAY. VERY OFTEN, THE GUARDIAN AD LITEM PROGRAM, ITSELF, WILL REQUEST THE ATTORNEY. THE GUARDIAN WAS NOT ON THE CASE BY THE WAY.
THE SITUATION THAT WE HAVE NOW SEEN, ABOUT THESE CHILDREN THAT ARE BEING COMMITTED TO RESIDENTIAL TREATMENT, THAT IS THAT THEY ARE GENERALLY OLDER CHILDREN, THAT THEY ARE GENERALLY, AS MS. WELLS SAID, TROUBLED KIDS WITH A HISTORY OF RUN AWAYS, SORT OF THE PROTOTYPE THE MW IS THE BLOW TOE TYPE -- IS THE PROTOTYPE OF THAT TYPE OF CHILD, THAN IS WHERE YOU ARE SAYING MW --
THE MW IS A PROTTOE TYPE BUT HE CERTAINLY IS -- A PROTOTYPE BUT HE CERTAINLY IS NOT THE ONLY CHILD. THERE ARE CHILDREN IN THAT GROUP WHO WANT TO EXPRESS THEMSELVES. THE ATTORNEYS MAKING HEILD'SESD INTEREST IS, REALLY THAT IS NO DIFFERENT THAN HAVING A BEST INTEREST STANDARD. WHAT YOU WON'T SEE AN ATTORNEY DO, UNLESS THERE IS A PRO BONO ATTORNEY WITH ONE CASE AND PROPERLY TRAINED, WE HOPE, WHAT YOU WON'T SEE AN ATTORNEY DO IS GO INTO THAT HOME ONCE A MONTH AND SPEND HOURS TALKING TO THERAPISTS AND TALKING TO --
THE RULE DOES VISION A GUARDIAN AD LITEM ATTORNEY.
ABSOLUTELY.
WASN'T THERE A RULE ORIGINALLY PROPOSED AT THE TIME OF MW, WASN'T THAT BY THE DADE COUNTY GUARDIAN ADD LIGHT SNEM.
YOUR HONOR, I WROTE THAT BY MYSELF, AND IT DID PROPOSE AN ATTORNEY, BUT DURING THE BRIEF, BRIEFING PIECE OF THAT, I SPECIFICALLY SAID, IN THE BRIEF, THAT THIS WOULD NOT, THIS WOULD BE FOR THE CHILDREN WHO OBJECT. THIS WOULD NOT NECESSARILY BE FOR THE YOUNG CHILDREN. IT WOULD NOT NECESSARILY BE FOR CHILDREN WHO ARE SO INCOMPETENT THAT THEY REALLY COULDN'T GIVE GOOD, COULDN'T TAKE AND ACCEPT AND UNDERSTAND THE COUNSELING AS WELL.
WHO IS GOING TO MAKE THAT DETERMINATION? IN OTHER WORDS WHO IS GOING TO DRAW THESE DISTINCTIONS THAT, WELL, I HAVE GOT THIS CHILD, AND I GUESS, YOU KNOW, THIS CHILD, THE STREET SMART AND SOUNDS TO ME LIKE, WHO MAKES THAT --
NORMALLY THE JUDGE MAKES THAT DECISION. NORMALLY THE JUDGE MAKES THAT DECISION, BASED ON INFORMATION. THE JUDGE DOESN'T SIT THERE --
ISN'T THAT THE SAFEGUARD TO THIS OTHER ISSUE ABOUT WHAT THE LAWYER IS GOING TO DO AND WHAT THE GUARDIAN AD LITEM IS GOING TO DO, BECAUSE THE GUARDIAN AD LITEM DOESN'T GET TO DECIDE WHAT IS IN THE BEST INTEREST OF THE CHILDREN. THE LAWYER DOESN'T GET TO DECIDE WHAT IS IN THE BEST INTEREST OF THE CHILDREN.
THE JUDGE ALWAYS DOES. THE JUDGE DECIDES WHAT IS ULTIMATELY IN THE BEST INTEREST OF THE CHILDREN. THE GUARDIAN AD LITEM MAKES RECOMMENDATIONS.
CHIEF JUSTICE: I THINK YOU BETTER YIELD TO JUDGE DAWSON. THANK YOU.
MAY IT PLEASE THE COURT. I AM CIRCUIT JUDGE DANIEL DAWSON. I AM FROM THE NINTH CIRCUIT. I HANDLE ALL THE JUVENILE CASES IN OSCEOLA COUNTY. I AM HERE AS THE CHAIR OF THE CHILDREN'S COURT IMPROVEMENT COMMITTEE, ADVISORY COMMITTEE TO THIS COURT. I AM, ALSO, A MEMBER OF THENIE SECN OF THE CIRCUIT JUDGES CONFERENCE, WHICH DID FILE A RESPONSE TO THIS, AND I DO NOT BELIEVE THEY ARE REPRESENTED HERE TODAY, SPECIFICALLY, SO I WOULD BE WILLING TO ANSWER ANY QUESTIONS THAT MAY COME OUT OF THEIR RESPONSE. BASICALLY, OUR COMMENTS ARE FOUND IN TWO DIFFERENT ARE RESPONSES TO THE COURT, AND JUST VERY BRIEFLY TO COVER THEM, THE, WE WERE VERY UNITED IN OUR POSITION THAT THERE IS NOT A PROCEDURAL RIGHT TO AN ATTORNEY TLCHT HAS NOT YET BEEN CREATED A SUBSTANTIVE RIGHT TO AN ATTORNEY IN THESE PROCEEDINGS.
HAS YOUR CIRCUIT BEEN PARTICIPATING IN THIS PROGRAM WHERE LAWYERS HAVE BEEN APPOINTED?
YES. WE HAVE THE PILOT PROJECT IN THE NINTH CIRCUIT.
WOULD YOU TELL US HOW LONG HAS THAT BEEN IN PLACE NOW, AND HOW IS THAT GOING?
WE ARE COMING UP ON TWO YEARS. IT IS GOING EXTREMELY WELL. IN FACT, IRONICALLY, I BELIEVE, MORE OF THE, OR AT LEAST IN THE MY COUNTY, IN OSCEOLA COUNTY, I HAVE HAD MORE OF THOSE ATTORNEYS FIGHTING TO TRY TO GET KIDS INTO THESE PROGRAMS AND INTO THESE FACILITIES, THAN TRYING TO GET KIDS OUT OF THESE FACILITIES.
WOULD YOU OVERALL SAY THAT THE ATTORNEYS HAVE BEEN HELPFUL OR HAVE THEY BEEN OBSTRUCTIVE?
IN ALL BUT ONE CASE, THEY HAVE BEEN HELPFUL.
WE KNOW WHO THAT ONE CASE IS.
IN NEARLY EVERY CASE, BUT I WOULD EMPHASIZE THAT I BELIEVE THE REASON FOR THAT IS THAT THE COURT HAS THE DISCRETION TO SELECT THE CASES WHERE THERE IS A NEED FOR AN ATTORNEY. I BELIEVE IF AN ATTORNEY WAS APPOINTED IN EVERY CASE, THEN IT WOULD NOT BE HELPFUL. I DO NOT BELIEVE THAT ADDING A ATTORNEY TO A PROCEEDING IS ALWAYS THE ANSWER TO FIX A PROBLEM.
WHAT ARE THE CRITERIA NOW FOR THE JUDGES? IN OTHER WORDS WHAT CASES ARE THEY? WE ARE NOT TALKING JUST ABOUT CASES WHERE WE ARE TALKING ABOUT RESIDENTIAL COMMITMENT FOR MENTAL HEALTH PROBLEMS, ARE WE? WE ARE TALKING ABOUT A BROADER PROVISION OF LAWYERS?
CORRECT. THE COURT HAS THEON TO APPOINT AN ATTORNEY AD LITEM IN ANY DEPENDENCY CASE WHERE THEY BELIEVE THERE E
ES OF GUIDELINES THAT ARE THERE, AND WHY WOULDN'T THIS KIND OF ISSUE BE AMONGST THOSE GUIDELINES? THAT IS THAT, IF THE CHILD IS GOING TO BE PLACED FOR MENTAL HEALTH REASONS, WOULDN'T THAT BE A LOGICAL ONE THAT WOULD BE IN THE GUIDELINES?
IT WOULD BE, IF A CHILD, IF THE FACTS PROVIDED FOR THAT, THE PROBLEM IS THAT, IN MOST OF THESE CASES, IT IS CLEAR THAT THE CHILD IS IN NEED OF THE SERVICES. THERE IS A LONG WAITING LIST. IN FACT, AS I INDICATED, THE BIGGER PROBLEM WE HAVE IS GETTING CHILDREN INTO THE PERHAPS THAT NEED THE HELP, AS OPPOSED TO CONCERNS ABOUT KIDS WHO ARE IN PROGRAMS THAT NEED TO BE EITHER STEPPED DOWN OR REMOVED.
THE AVAILABILITY OF THE RESOURCES.
CORRECT. WE HAVE MORE KIDS. THAT IS ONE OF THE COMMENTS ON THIS COST SAVING THAT WAS RESPONDED, SOMEHOW REMOVING ONE OF THESE CHILDREN THROUGH THE PROCESS IS GOING TO SOMEHOW SAVE THE STATE SOME MONEY THERE. IS A LONG WAITING LIST FOR THESE FACILITIES, AND IF A CHILD WAS REMOVED, ANOTHER CHILD WOULD TAKE THE PLACE IMMEDIATELY. THERE WOULD BE NO COST SAVINGS TO THE STATE. BUT THAT PROCEEDING IS ONE WHERE THE COURT WOULD SCRUTINIZE IT, IN DETERMINING WHETHER OR NOT AN ATTORNEY AD LITEM SHOULD BE APPOINTED IN THE VAST MAJORITY OF CASES, IT IS CLEAR TO EVERYONE THAT THIS PLACEMENT IS ABSOLUTELY NECESSARY, AND LIKE I SAY, SOME OF THE TIMES I APPOINT ATTORNEY ADD LIGHT ELMS TO ASSIST THE COURT AND THE GAL PROGRAM IN GETTING THE CHILD INTO THE FACILITY, BECAUSE THE DEPARTMENT DOES NOT HAVE SPACE OR REFUSES TO PLACE THE CHILD.
NOW, THE ATTORNEY AD LITEM PROGRAM IS SOMETHING THAT WAS FUNDED BY THE LEGISLATURE, CORRECT?
THAT'S CORRECT, AND IT RUNS OUT AT THE END -- WELL, THE NEXT FISCAL YEAR. IT WAS REFUNDED FOR THE NEXT YEAR.
SO THE COUNSEL THERE, THERE IS A SOURCE OF FUNDING.
THERE IS A SOURCE OF FUNDING, AND THE APPROPRIATIONS, THE 7 AND-A-HALF MILLION, ONLY ABOUT THREE MILLION OF THAT IS ACTUALLY EARMARKED FOR ATTORNEYS AND THE MAJORITY OF THAT IS EARMARKED FOR ATTORNEYS FOR THE GAL PROGRAM.
THAT IS THE N THAT WAS JUST MADE.
CORRECT, AND IT DOES PROVIDE SOME MONIES FORTONTS IN THE APPROPRIATE CIRCUMSTANCES.
I TAKE IT THAT IT SOUNDS LIKE YOU ARE HEADING IN THE DIRECTION THAT YOUR GROUP WOULD BE RECOMMENDING THE CONTINUATION OF THE FUNDING OF ATTORNEYS IN THOSE CASES, THAT THE JUDGES ASKED FOR.
THE MAJORITY OF OUR GROUP SUPPORT THE OSCEOLA OR NINTH CIRCUIT MODEL, WHERE THE COURT DOES HAVE FUNDS AND THE AVAILABILITY OF AN ATTORNEY AD LITEM. I KNOW THERE HAS BEEN CONCERNS ABOUT THE EFFECTIVENESS OF THE GUARDIAN AD LITEM PROGRAM. THAT CONCERNS THIS, OUR GROUP, BECAUSE THE GUARDIAN AD LITEM PROGRAM WAS ESTABLISHED BY STATUTE. IT IS A SUBSTANTIVE RIGHT AND FUNDED BY CLOSE TO $10 MILLION. ACTUALLY WE WILL HAVE ABOUT $17 MILLION NEXT YEAR, AND IT IS UNDER THE DIRECTION OF THE COURT AND STILL IS UNABLE TO HAVE SUFFICIENT GAL'S TO REPRESENT THE CHILDREN, AND WHAT THIS RULE WOULD PROPOSE IS TO CREATE A RIGHT TO AN ATTORNEY, THE INABILITY TO PROCEED TO A HEARING WITHOUT THAT ATTORNEY, AND HAS POINTED OUT IN SOME POCKETS OF THE STATE, THERE MAY BE SUFFICIENT PRO BONO ATTORNEYS IN MANY AREAS OF THE STATE THERE WILL NOT BE SUFFICIENT PRO BONO ATTORNEYS. IF THERE IS NOT SPECIFIC STATUTORY PROVISIONS AND FUNDING THERE WILL NOT BE AN ATTORNEY AND THERE WILL NOT BE A HEARING.
WELL, IS THAT THE WAY, YOU KNOW, AGAIN, IN DECIDING BEFORE THIS, THAT THERE IS DISCRETION IF, IS THAT HOW JUDGES WERE EXERCISING THEIR DISCRETION? IF THERE WEREN'T ATTORNEYS, THEY JUST WEREN'T APPOINTED?
NO. WE TRIED TO APPOINT PRO BONO ATTORNEYS. I TRIED TO APPOINT PRO BONO ATTORNEYS AND THE COUNTY APPEALED ON THAT ISSUE, SO IF THERE ARE NO PRO BONO ATTORNEYS, THE JUDGE CANNOT OPERATE THAT DISCRETION.
CHIEF JUSTICE: THANK YOU. REBUTTAL.
JUST A SHORT STATEMENT. I HEARD MS. WELLS SAY THAT SHE HAS RESPONSIBILITY FOR THESE CHILDREN. YOU KNOW, WE CIRCUIT JUDGES ARE THE ONES THAT ARE RIGHT ON THE LINES. WE ARE THE ONES THAT HAVE TO MAKE THE DECISIONS. IFI DON'T HAVE ALL OF THE INFORMATION THAT IS AVAILABLE ABOUT THAT CHILD THAT HAS BEENCETATEY, I CAN'T MAKE THE RIGHT DECISION.
JUDGE CARLIN, WOULD YOU RESPOND TO MS. WELLS'S COMMENT ABOUT IN SOME AREAS YOU CAN'T HOLD THESE HEARINGS AND THE KIDS ARE LEFT IN LIMBO. HOW DO YOU DEAL WITH THAT?
I BELIEVE THAT THERE ARE ALWAYS ATTORNEYS. I HAVE NOT HAD THE PROBLEM N MIAMI, CERTAINLY WE HAVE ACCESS TO THE UNIVERSITY OF MIAMI LAW CLINIC, AND THERE ARE OTHER CLINICS AVAILABLE, BUT OUTSIDE OF THAT, I AM IN FAMILY COURT. NOW, WE DON'T HAVE ACCESS TO A CLINIC, BUT WHEN I HAVE A CHILD WHO HAS GOT A DOMESTIC VIOLENCE AND THEY NEED A LAWYER OR A CHILD THAT NEEDS A LAWYER IN A HIGH CONFLICT CASE THERE, LAWYERS THAT ARE TRAINED TO DO IT.
BUT HOW ABOUT ACROSS THE STATE THOUGH? YOU ARE SPEAKING OF MIAMI.
YES, AND I BELIEVE IN OUR BRIEF WE SET FORTH A WHOLE CHART THAT SETS UP WHERE THE CHILDREN ARE COMMITTED AND WHERE THE LAWYERS ARE AND SHOWS THAT THE NUMBERS ARE IN EXCESS OF WHAT IS NEEDED.
CHIEF JUSTICE: THANK YOU, JUDGE CARLIN.
THANK YOU.
MAY IT PLEASE THE COURT. FIRST, IN REGARD TO MS. KRAMER'S FIRST ARGUMENT, THE LAW OF THE CASE HAS BEEN ESTABLISHED IN THIS CASE, AND THE OPPONENTS ARE TRYING TO REARGUE THE MERITS OF THE DECISION ABOUT HAVING A HEARING AND HAVING A LAWYER, WITHOUT HAVING FILED A MOTION FOR REHEARING IN THAT CASE. THIS COURT HAS INHERENT JURISDICTION, UNDER ROSE VERSUS PALM BEACH COUNTY.
YOU DON'T DISAGREE THAT THE LEGISLATURE HAS NOW ACTED IN THAT AREA.
LEGISLATURE HAS PROVIDED SOME FUNDING. I AM TALKING ABOUT THE --
I AM TALKING ABOUT THE HEARING. DID THE LEGISLATURE ACT ON CHAPTER 39 THIS PAST SESSION, AS MS. KRAMER INDICATEED?
THAT PROVISION WAS ACTUALLY ENACTED LAST SESSION, AND THIS COURT DEALT WITH IT IN ITS LAST RULING ON THE, THE RULE AMENDMENT, AND THIS COURT FOUND THERE WAS NOTHING INCONSISTENT BETWEEN THE STATUTE AND WHAT THIS COURT REQUESTED.
WE DEALT WITH THAT IN THE RULE?
IN THE AMENDMENT TO THE RULE, WHEN YOU PROPOSED A SUBSTITUTE RULE. AND IN ADDITION, THIS COURT HAS INHERENTON, UNDER ROSE VERSUS PALM BEACH COUNTY, TO --
BUT SHOULDN'T THERE BE A SAFEGUARD IN THE RULE, SS HAD EXPERIENCE, AND I AM SURE EVERYONE HERE WANTS TO DO WHAT IS THE BEST FOR OUR CHILDREN IN THE STATE, BUT IF THERE IS A SITUATION WHERE THE CHILD NEEDS TO GET INTO THIS RESIDENTIAL TREATMENT, AND THERE IS NO ATTORNEY AVAILABLE, WHAT HAPPENS?
AND I THINK THERE IS A SUGGESTION THAT, IN THAT CASE, THE CHILD CAN BE PLACED, AND YOU CAN HAVE A HEARING LATER, WHEN YOU ARE ABLE TO OBTAIN THOSE RESOURCES.
THAT WAS, THERE IS A SAFEGUARD IN THE RULE NOW, AS OPPOSED --
THAT IS THE PROPOSAL OF THE JUVENILE RULES COMMITTEE. SECONDLY, WITH REGARD TO THE DIFFERENCE BETWEEN A GUARDIAN AD LITEM REPRESENTED BY AN ATTORNEY AND A CHILD, I JUST WOULD LIKE TO GIVE THE COURT A CASE EXAMPLE EXAMPLE. SOME 15 YEARS AGO, WHEN I WAS STILL IN JACKSONVILLE, I WAS APPOINTED TO REPRESENT MY FIRST CHILD AS ATTORNEY AD LITEM. THE CHILD HAD A GUARDIAN AD LITEM. IT WAS A CASE WHERE THEFATHER OF THE CHILD WANTED THE CHILD STERILIZED. THE GUARDIAN AD LITEM'S POSITION WAS THAT THE CHILD SHOULD BE STERILIZED, A 11-YEAR-OLD GIRL WHOLY ACTIVE, SHOULD BE STERILIZED, BECAUSE THAT GUARDIAN AD LITEM HAD A SON WHO WAS MENTALLY RETARDED. SHE HAD HIM STERILIZED WHEN HE WENT IN FOR SOME ROUTINE PROCEDURE TO THE DOCTOR'S OFFICE. A GUARDIAN AD LITEM'S ATTORNEY WOULD HAVE TO ADVANCE THE POSITION OF THAT GUARDIAN AD LITEM, WHICH IS THAT THIS CHILD SHOULD BE STERILIZED. MY RESEARCH SHOWED ME, AND I WAS TOTALLY KNEW TO THE -- NEW TO THE AREA, THAT THERE WAS A VAST PANOPLY OF LAW. THERE WAS A BALANCING TEST. THERE WAS LEGAL GUIDANCE THAT WOULD NEVER BEEN PROVIDE TO DO THAT COURT, IF I WEREN'T APPOINTED TO REPRESENT THAT CHILD. SO MY POINT IS THAT THE COURT NEEDS ALL THE INFORMATION THE COURT CAN GET, FROM WHATEVER SOURCE THE COURT CAN GET IT. REGARGE DIN OF JUDGES TO APPOINT ATTORNEYS, I THINK, REALLY RILS A PERFECT CASE. THE JUDGE DOESN'T HAVE THE INFORMATION NECESSARY TO KNOW WHO NEEDS AN ATTORNEY WHO WHO DOESN'T. THIS CHILD WENT 15 MONTHS, BEFORE A JUDGE WHO HAD THE WRONG INFORMATION. SHE DID NOT KNOW THAT THE CHILD WAS MISSING.
IS THERE A GUARDIAN AD LITEM IN THAT CASE?
THERE WAS NO REPRESENTATIVE IN THAT CASE. SO IN ORDER TO MAKE THE DECISION WE CAN'T MAKE THE DECISION, BASED ON LACK OF INFORMATION, AND THE ONLY WAY I SEE TO RESOLVE THAT IS THAT THE CHILD GETS A LAWYER IN EVERY CASE.
CHIEF JUSTICE: THANK YOU. I THINK THE COMMITTEE CHAIR HAD A STATEMENT. DO YOU HAVE A BRIEF STATEMENT?
YES.
I WILL PERMIT YOU.
YOUR HONOR, TO ANSWER YOUR QUESTION ABOUT THE LEGISLATION, SENATE BILL 632 WAS PASSED AND WAS SIGNED BY THE GOVERN ON, AND THAT WAS THE LEGISLATION THAT MS. KRAMER WAS TALKING ABOUT, BUT THAT IS NOT INCONSISTENT WITH THIS RULE. THE BODY OF THAT STATUTE, IN SECTION 3, IT AMENDMENTS SECTION 39.407, AND IT SPECIFICALLY SAYS THAT CHILDREN WHO ARE IN THE LEGAL CUSTODY OF THE DEPARTMENT MAY BE PLACED BY THE DEPARTMENT, WITHOUT PRIOR APPROVAL OF THE COURT. THE RULES COMMITTEE PROPOSES AN ADDITIONAL RULE THAT IS A-5 THAT SAYS THAT, WHEN THE WRITTEN ASSESSMENT INDICATES THE CHILD REQUIRES IMMEDIATE PLACEMENT IN A RESIDENTIAL TREATMENT CENTER AND THE PLACEMENT CANNOT WAIT FOR A HEARING, THEN THE DEPARTMENT MAY PLACE THE CHILD, PENDING A HEARING, WHICH MEANS IN ADVANCE OF A HEARING, AND SO THE PROPOSED RULE BY THE COMMITTEE AND THAT LEGISLATION, ARE CONSISTENT. THANK YOU.
ASK ONE QUESTION. THAT IS THE RULE THAT YOU SAY ANSWERS THE QUESTION OR CONCERN ABOUT CHILDREN LANGUISHING AND NOT HAVING ACCESS --
AND WILL DO THAT AS WELL, YOUR HONOR. YES, SIR.
IT DOES THAT.
I BELIEVE SO, YES, SIR.
CHIEF JUSTICE: THANK YOU, COUNSEL. WE, I WILL REITERATE WHAT JUSTICE PARIENTE SAID. IK IT IS, REALLY, S THAT ALL OF US THAT HAVE ANYTHING TO DO WITH THE COURT SYSTEM OR THE GOVERNMENT OF FLORIDA ARE CERTAINLY CONCERNED ABOUT CHILDREN, AND SO WE APPRECIATE, VERY MUCH, THE EFFORTS OF EACH PERSON HERE, FOR YOUR EXTRAORDINARY SERVICE TO THE COURT AND, MORE IMPORTANTLY, TO THE CHILDREN OF FLORIDA, AND IN THIS RULE AND GENERALLY, AND THE DAY-TO-DAY HANDLING OF THE PROBLEMS THAT CONFRONT CHILDREN FLOUT OUR STATE. SO -- THROUGHOUT OUR STATE. SO THANK YOU VERY MUCH. THIS COURT WILL BE IN RECESS. 15 MINUTES.