Federal suit against Hillsborough child welfare employees allowed to go forward

A federal judge ruled this month that a lawsuit involving the 2012 death of Marie Freyre can go forward, denying various child welfare employees’ motions to dismiss. Judge James Whittemore (Tampa) ruled on December 5 that the mother stated valid claims that the child welfare employees violated her rights under the Americans with Disabilities Act, the Rehabilitation act, section 1983 for violation of her right to care for her daughter, and most surprisingly under section 1985 for conspiracy to violate her constitutional rights. (Note: I was unable to find a public copy of the order online.)

The mother alleges that in April of 2012, the defendants discriminated against her on the basis of her disabilities, failed to implement in-home services that would have allowed reunification, moved her child 250 miles away to Miami without her consent, and prevented her access to her daughter during the trip to Miami in violation of a court order. The child, Marie Freyre, died within 12 hours of her arrival in Miami.

Two things stand out in this order.

First is the survival of the section 1985 conspiracy claims. A 1985 claim requires “(1) a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; and (3) an act in furtherance of the conspiracy; (4) whereby a person is either injured in his person or property or deprived of any right or privilege of a citizen of the United States .” The conspiracy here was based upon staffings, communications, and joint actions taken by various professionals involved in the case, including administrators, CPIs, and State Attorneys. The defendants tried to raise their defenses early, that they were only trying to protect the child’s well-being. The judge left those arguments for a later date:

Taking Freyre’s well-pleaded allegations as true, as they must be at this stage of the case, she sufficiently alleges a class-based discriminatory animus behind Defendants’ actions. While Defendants argue they were not motivated by animus, but by a concern for M.A.F.’s well-being, the only question is whether Freyre’s allegations are sufficient to state a claim under § 1985(3). Freyre has alleged “assertedly benign (though objectively invidious) discrimination” against parents with disabilities resulting in the separation of her family, which is sufficient to state a claim. See Bray v. Alexandria Women’s Health Clinic, 506 U.S.263, 269, 113 S.Ct. 753, 122 L.Ed.2d 34 (1993). 11 11 This determination should not be construed as a comment on the merits of Freyre’s claim.

Defendants further argue that the animus Freyre alleges is directed not at the disabled as a class, but only at physically handicapped parents who are unable to care for their children. Defendants’ attempt to narrow Freyre’s claim is unavailing. As a disabled parent, Freyre states a claim when she alleges a conspiracy by state actors to deny her custody, visitation, and reunification with her child based solely on her disability. See Fitzpatrick v. Town of Falmouth, 321 F.Supp. 119, 124 (D.Me.2004) (allegations of conspiracy between school administrators and town to deny autistic home-schooled child access to public school playground sufficient to overcome motion to dismiss).

Second is the survival of the ADA and RA claims. Freyre alleges that the State discriminated against her as a parent due to her inability to lift the child, sending the child to Miami instead of providing support in her home to help her with daily care.

Freyre has sufficiently alleged at least “indirect” harm flowing from the actions of each Institutional Defendant to satisfy the traceability requirement. For HKI, Freyre alleges that it ceased attempting to find 24–hour care for M.A.F. despite a court order, relying on a statement from Nurse Emerson that HKI knew was false. (Dkt. 71 ¶¶ 50, 54–58). Freyre also alleges that HKI facilitated M.A.F.’s placement and transfer to the nursing home in Miami. (Id. ¶¶ 71–72, 76, 86). While these actions may have only “indirectly” led to M.A.F.’s death, no more is required to satisfy the traceability requirement. Focus on the Family, 344 F.3d at 1273.

The vast majority of cases in child welfare are due to parents’ poverty, substance abuse, or some mental or emotional disability. Current child welfare doctrine requires only “reasonable efforts” by the State to help a parent “remedy the circumstances” that brought the case in. That vague standard creates a race toward the bottom, in that “reasonable” is not defined and in practice becomes “whatever we normally do on cases like these.” The standard also sets the complete end of state intervention (through DCF) as the measure of success, and creates a ground for termination of parental rights if state intervention cannot be ended within a year. Incorporating ADA and RA doctrines into that system could create stronger individual accommodation requirements by the state as a whole and take some of the (often unreasonable) burdens off of impoverished and disabled parents.  The conspiracy doctrines discussed above could  demand responsibility from other state agencies (DCF+APD+ACHA+…) to more actively support families at risk of losing their children due to disability, poverty, or other factors outside of their control and within the orbit of the supporting agencies.

At this stage of the litigation the facts alleged by the plaintiff are assumed to be true while legal issues are debated. Defenses based on whether the acts of removing the child from the home or placing the child in Miami were reasonable or justified are left for later hearings, and the ultimate fate of Judge Whittemore’s legal opinions are unknown until the inevitable appeals play out.

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.

Amplifying Ferguson and Race in Child Welfare

One lesson from Ferguson for those of us who talk and write for a living is that now is (always) the time to amplify voices that normally are silenced. For those of us who work in child welfare, another lesson is that the children we work with have a social, historical, and political identity that is not amenable to rounds of individual therapy. So here are some readings from the #FergusonSyllabus that have to do with youth and families, shared from the list curated by Marcia Chatelain writing at  theatlantic.com and from sociologistsforjustice.org. I’ve added four suggestions for child welfare folks at the end. 

“A Talk to Teachers,” in The Price of the Ticket, Collected Non-Fiction 1948-1985
James Baldwin

Ferguson Killing Inspires Young Black Activists
Frederica Boswell, NPR

On Recognizing My White Privilege as a Parent in the Face of Ferguson
Elizabeth Broadbent, xoJane

What Do We Teach When Kids Are Dying? #MichaelBrown
Chris Lehman, blog

What White Children Need to Know About Race
Ali Michad and Eleonora Bartoli, nais.org

Healing Days: A Guide For Kids Who Have Experienced Trauma
Susan Straus

How the Children of Birmingham Changed the Civil-Rights Movement
Lottie L. Joiner, The Daily Beast

“‘We have to make them feel us‘: Open Letters and Black Mothers’ Grief”
Emily Owens, African American Intellectual History blog

Family Properties: Race, Real Estate, and the Exploitation of Black Urban America
Beryl Satter

Noughts & Crosses
Malorie Blackman

Smoky Night
Eve Bunting and David Diaz

What Shall I Tell My Children Who Are Black?
Margaret Burroughs

I am Rosa Parks
Brad Meltzer

Ruth & the Green Book
Calvin Ramsey

Tar Beach
Faith Ringgold

As Fast As Words Could Fly
Pamela Tuck

The Skin You Live in
Michael Tyler

The Other Side
Jacqueline Woodson

Shining Star
Paula Yoo

U.S. Schools: Desegregation court cases and school demographic data
Brown University

Race and the Ferguson-Florissant School District
Shaun R. Harper and Charlee Davis, III, University of Pennsylvania Graduate School of Education

Self-Segregation: Why It’s So Hard for Whites to Understand Ferguson
Robert P. Jones, The Atlantic

Reflections on Ferguson — What does education mean in a world like this? ” Daniel Katz, blog

Michael Brown’s High School Is An Example Of The Major Inequalities In Education
Rebecca Klein, Huffington Post

Savage Inequalities: Children in America’s Schools
Jonathan Kozol

Stepping over the Color Line: African-American Students in White Suburban Schools
Amy Stuart Wells and Robert L. Crane

How Does it Feel to be a Problem?
Relando Thompkins, blog

“Want to Help Marginalized Students in Schools? Stop “Stop and Frisk” and Other Punitive Practices, Too.” – Markus Gerke

Kirwan Institute for the Study of Race and Ethnicity. 2014. “State of the Science: Implicit Bias Review.” Available online:http://kirwaninstitute.osu.edu/wp-content/uploads/2014/03/2014-implicit-bias.pdf.

Ferguson, Ann. 2001. Bad Boys: Public Schools in the Making of Black Masculinity. Ann Arbor: University of Michigan Press. (Especially chapter 4: Naughty by Nature. Google link: http://books.google.com/books/about/Bad_Boys.html?id=3YMDorLC-cQC)

Shattered Bonds: The Color of Child Welfare. Dorothy Roberts.

“Prison, Foster Care, and the Systematic Punishment of Black Women.” Dorothy Roberts.

“Black Club Women and Child Welfare.” Dorothy Roberts.

“There is no Santa Clause — The Challenge of Teaching the Next Generation of Civil Rights Lawyers in a ‘Post-Racial’ Society.” Deborah N. Archer.

DCF holding workshop on Extended Foster Care and PESS rules today

The new Independent Living Program went into effect on January 1, and since that time it’s been operating without administrative rules. That’s not for lack of effort to get rules passed. Good people have been working on this: a previous round of proposed rules, which were detailed and provided lots of support to youth and guidance to workers, was rejected by the governor’s office. This round of proposed rules does almost nothing except create the forms that have to be filled out and tells youth how to appeal the decision if they get cut.

The new proposed rules are here:

On each of those sites, click “View Notice” and it will open a Word Doc that contains the proposed rules.

The workshop is open to the public. If you want to participate, you need only call in: 1-888-670-3525 Code: 3148793079#.  EFC is 10:00-12:00 and PESS is 1:00-3:00.

Florida Supreme Court accepts ineffective assistance of counsel case

This is huge. The Florida Supreme Court has granted review in the case of a mother who lost her parental rights at a trial which began with her defense attorney informing the court that he was not prepared to go forward. Oral argument will be February 3, 2015. Briefs are due November 20 and 25. No continuances. The justices granting review: Labarga, Pariente, Lewis, Quince, and Perry.

I’ve already written my opinion on this matter. There’s no good reason to not have a procedure to handle IAC claims in termination cases. Not having one causes a lot of problems and undermines the fairness of the whole process.