Issue presented: Whether Florida juvenile court has jurisdiction over child abandoned outside the United States.

An undocumented Guatemalan child petitioned for adjudication of dependency on his behalf. The petition alleged that the child’s mother had made him leave his family in Guatemala to seek refuge in the United States, where his father refused to provide for him. The trial court denied the petition, holding that it did not have jurisdiction to adjudicate the child dependent because the alleged abandonment of the child occurred outside the United States and, according to the trial court, longarm jurisdiction had not been properly invoked.

On appeal, we argued that (1) the presence of an allegedly abandoned child in Florida is sufficient to confer jurisdiction on its courts, (2) Congress in legislating on immigration issues has left child welfare decisionmaking to the states, (3) facts alleged in the petition below were sufficient to support a dependency adjudication, and (4) because the case is capable of repetition, the child’s reaching age eighteen during pendency of the appeal should not preclude the court from rendering an opinion.

In light of the court’s recent favorable ruling in our case S.H. v. Department of Children & Families, reported below, that juvenile courts have dependency jurisdiction over undocumented immigrant children, the court declined further review of that issue and dismissed our appeal as moot with a citation to S.H. We will be closing this case, as the child has reached majority.

Issue presented: Whether county sheriff must provide copies of contracts, policies, and reports regarding health care at the county jails.

We filed a petition for writ of mandamus against the Palm Beach County Sheriff alleging that his office had failed to respond to a Legal Aid request for copies of (1) current contracts with the health provider at the county jails, (2) his current county jail health operating procedures, (3) the latest written quality improvement evaluation of patient care at the jails, and (4) the latest jail inspection reports. Defendant produced the requested documents on the eve of a June 29 hearing on whether an alternative writ of mandamus should issue.

We have received Defendant’s check for one thousand dollars in attorney fees and costs and have filed a notice of voluntary dismissal with prejudice in light of the settlement.

Issue presented: Whether dependent child waives psychotherapist-patient privilege by referencing the child’s mental health issues in dependency petition.

On behalf of our fifteen-year-old client J.C. we filed a dependency petition alleging that her mother was unable to manage J.C.’s mental illness and intervention was necessary to prevent deterioration. After the court ordered appointment of a guardian ad litem for the child, the GAL program proffered a form appointment order allowing it unrestricted access to J.C.’s psychiatric and psychological records without affording her an opportunity to assert the psychotherapist-patient privilege. In conformity with S.C. v. Guardian Ad Litem, 845 So.2d 953 (Fla. 4^th DCA 2003), on our motion the juvenile court struck that provision from the GAL program’s form before entering it as an order. The GAL Program appealed, claiming we had waived the child’s privilege by discussing her mental health in the dependency petition.

In our principal appellate brief we argued that (1) because J.C.’s mental health was not an element of her dependency cause of action, our mention of her mental condition is not a waiver of her psychotherapist-patient privilege; (2) any waiver would be limited only to matters directly relevant to the dependency case and would not confer blanket authority to access J.C.’s mental health records without a prior hearing; (3) the GAL program already has access to all relevant information about J.C.’s mental health from nonprivileged records; (4) J.C. is competent and sufficiently mature to assert the privilege; and (5) release of her mental health records without a hearing would violate her state and federal rights to privacy.

On August 19 the Appellant filed a notice voluntarily dismissing its appeal. We continue to represent the child J.C. on the dependency case in juvenile court.

Issue presented: Whether auto repair shop’s failure to complete promised repairs and return a car to the customer entitle her to damages under common law and consumer protection statutes.

In March 2002, our client delivered a running two-year-old car to an auto shop for repair of engine noise. She has paid the shop $260 for repairs but, on each attempt to pick up her car, the shop told her to come back later. In November 2003 she sued for the cost of purchasing and insuring another vehicle, insurance and car payments on the withheld vehicle, the value of the withheld vehicle, costs, and attorney fees. Our complaint contained counts for common law fraud, breach of contract, and replevin, as well as statutory counts under the Florida Motor Vehicle Repair and Unfair and Deceptive Trade Practices Acts. We took depositions and served written discovery requests.

By mediated settlement, our client will receive a reliable mechanically certified car in running order with radio, tape, and air conditioning by October 28, and the case will be voluntarily dismissed with prejudice.

Issue presented: Whether agency must consider eligibility for disability-related Medicaid of person claiming new disabilities since Social Security decision he is appealing.

After denial of his claim for Social Security Disability benefits, our client applied for Medicaid, claiming new disabilities have arisen that Social Security has not yet considered. The Department of Children and Family Services treated his application for Medicaid as a family-related application and denied it when his ex-wife, who lives with our client and their common children, refused to supply proof of her financial circumstances and immigration status. We argued to a state hearing officer that DCF was required to consider our client for disability-related Medicaid, a category of aid for which his ex-wife’s circumstances are not relevant. The hearing officer ruled that Social Security’s finding of no disability is binding on DCF because Mr. Brister applied for Medicaid within a year of that finding and the Social Security decision is on appeal. We appealed the hearing officer’s decision to the District Court of Appeal.

The record has been filed with the District Court of Appeal and we are preparing our principal brief.

Issue presented: Whether State may refuse consent to grandparent adoption because final home study has not been completed.

After terminating parental rights over three sibling children, the Department of Children and Family Services elected to pursue the children’s adoption by our client B.Y., their grandmother, who was living in temporary housing due to low income. The Department then refused to perform a final home study on B.Y.’s grandmother until she obtained permanent housing and refused to consent to the adoption because a final home study had not been completed. On request by Kirsten Herndon of the Legal Aid Society’s Foster Children’s Program, the juvenile court finalized the children’s adoption over the Department’s objection.

On appeal by the Department, a panel of the Fourth District Court of Appeal, vacating a contrary opinion by a majority of the same panel, reversed. Based on a conflict with opinions issued by other courts of appeal, we requested and obtained review by the Florida Supreme Court. In our principal brief, we argue that (1) juvenile courts have jurisdiction concurrent with the Department to finalize adoptive placement of foster children into permanent families within one year of entry into state custody, and (2) Florida statutes make the Department’s consent a sufficient but not necessary condition for finalizing adoptions.

Issue presented: Whether following exhaustion of all appeals from termination of parental rights, parent must receive evidentiary hearing on habeas petition alleging ineffective assistance of counsel.

The biological father of a child client of our Foster Children’s Program had his parental rights terminated in juvenile court and then unsuccessfully filed an appeal, motion for rehearing, and motion for certification to the Florida Supreme Court, followed by an unsuccessful petition to the District Court of Appeal for certiorari seeking review of the juvenile court’s termination of his visitation rights. The biological father then filed in the trial court a petition for writ of habeas corpus alleging ineffective assistance of counsel.

After denial of the habeas petition, the biological father filed a petition for writ of mandamus in the Fourth District Court of Appeal arguing that he had been unlawfully denied an evidentiary hearing on his habeas petition below. The Court of Appeal has redesignated the terminated biological father’s mandamus petition as an appeal from the denial of habeas relief below, set an ordinary appellate schedule, and denied our motion to dismiss the appeal. On our motion, the Court of Appeal temporarily remanded the case for the juvenile court to exclude confidential documents from the record.

On August 19 the Juvenile Court struck from the record twelve pleadings postdating termination of the father’s parental rights. We now await Appellant’s principal brief in the District Court of Appeal. Our child client continues to live with adoptive parents. Our client’s finalized adoption, though not stayed, remains under a cloud while habeas proceedings pend.

Issue presented: Whether custodial parent in commercial travel contract may waive right of child’s estate to sue for wrongful death.

An eleven-year-old child was killed by a wild animal on an African safari in the company of his custodial mother, who on his behalf had signed a release of liability protecting the safari operator with an arbitration clause. The child’s divorced noncustodial father, as representative of the child’s estate, filed suit for wrongful death. The trial court granted defendant’s motion to stay the litigation and to compel arbitration, and the father appealed. The Legal Aid Society participated as amicus curiae before the Fourth District Court of Appeal, contending that the custodial mother lacked authority to bind the child. The District Court of Appeal agreed, holding that parents cannot waive their children’s litigation rights against commercial travel companies and certifying the issue to the Florida Supreme Court as one of great public importance. Defendant petitioned that Court for review.

Before the Florida Supreme Court as amicus curiae, we contend that (1) Florida should follow decisions of other state supreme courts precluding parents from binding their children to arbitration clauses; (2) Florida caselaw in comparable contexts precludes parents from relinquishing their children’s legal rights; and (3) the Federal Arbitration Act does not preclude resort to state public policy in determining whether a binding arbitration agreement exists.

Issue presented: Whether family court abused its discretion by denying paternity respondent who filed an answer an evidentiary hearing on his allegation that he was never served with the complaint.

Jessica Byrd, our client, filed a paternity action and, following service of process and all pleadings on respondent at the address he gave in his answer, and respondent’s failure to answer discovery or attend his trial, was awarded custody of their minor child. Six months later, after enforcement of the custody order by deputy sheriffs, respondent moved to set aside the final judgment, contending that he had never been served with the complaint or notice of final hearing. From the trial judge’s denial of his motion, respondent appealed.

On appeal we argue the record shows respondent duly served with process and all relevant papers, and denial of an evidentiary hearing was not an abuse of discretion because (1) the relevant facts appear of record; (2) respondent has not asserted grounds for relief from judgment under Rule 1.540 of the Rules of Civil Procedure; (3) respondent has not pleaded a meritorious defense to judgment on the merits; (4) respondent’s counsel failed to set her motion for evidentiary hearing; and (5) respondent has failed to provide the appellate court with an adequate record.

The case is fully briefed. We do not expect the case to be set for oral argument, and we await the court's decision.

Issue presented: Whether joint tenant of deteriorating home may be required to execute rehabilitation loan agreement.

Representing three sisters who own a home in West Palm Beach as joint tenants, we filed suit on June 24 against a fourth sister, also a joint tenant, for injunctive relief requiring her to join with them in executing a rehabilitation assistance loan agreement with the City. We allege that the home requires repair of roof damage, termite infestation, and rotting wood in order to avoid further deterioration, code citations and, ultimately, loss of the home, and that Plaintiffs will be irreparably harmed without relief.

Defendant’s default has been entered. We have filed affidavit evidence establishing the threat to our clients’ home. Final hearing, originally set for September 29, will be reset due to Hurricane Jeanne.

Issue presented: Extent of state official’s liability for attorney fees to prevailing party in settled case requiring notice and hearing for persons whose Medicaid claims for prescription medicine have been rejected.

On behalf of Medicaid recipients whose prescriptions for Medicaid-furnished drugs were rejected by state computers, and on behalf of the Florida Transplant Survivors Coalition whose membership includes such persons, we sued under the Due Process Clause and federal Medicaid statutes for an injunction requiring written notice and an opportunity for hearing. The court certified a statewide class of Medicaid recipients and, with cross motions for partial summary judgment pending, the parties entered into a mediated settlement that has been approved by the court.

Under the settlement, the Florida Medicaid program must require its contract pharmacies and health maintenance organizations to provide written notice of the reasons why a drug claim has been rejected and the procedures for resolving any dispute. Aggrieved persons must contact an ombuds office to be created by Defendant before they can obtain a hearing. In certain circumstances recipients will qualify for an emergency supply of medication, and for Medicaid coverage of branded medication when a generic analog may not be medically viable. Defendant’s settlement implementation deadline was May 13, 2004.

Plaintiffs have moved for awards of $855,586 in attorney fees, including $200,326.50 for the work of the Legal Aid Society, and $12,761.35 in costs.

Current status: We are monitoring implementation of the settlement. On our motion for attorney fees, an evidentiary hearing occurred July 27 before the magistrate judge. During the hearing, counsel for Defendant stated on the record that the award should be limited to fees of $600,000 and costs of approximately $7,000. We await the magistrate judge’s report and recommendation.

Issue presented: Whether juvenile court may shelter an allegedly abused or neglected baby without a sworn pleading or evidence.

On petition by the Department of Children and Family Services, the juvenile court in Palm Beach County ordered a child newly born in Palm Beach County to Broward County parents into shelter care and the case transferred to juvenile court in Broward County. The court acted based on termination of the parents’ rights over other children in earlier cases and on suspected parental drug abuse. The parents appealed.

Representing the child as attorney ad litem, we moved to dismiss the appeal for lack of jurisdiction, arguing that under caselaw the juvenile court’s order could not be construed as the type of custody order from which a nonfinal appeal was permitted under the appellate rules. The district court of appeal denied our motion to dismiss. Appellant then filed a brief challenging on due process grounds the juvenile court’s consideration of unsworn evidence in support of its shelter order.

The Department has dismissed its Palm Beach County dependency petition and returned the child to its parents pending outcome of a new abuse and neglect investigation. Notwithstanding the Department’s suggestion of mootness, the district court of appeal has declined to dismiss the appeal. We did not file an appellate brief on the merits, and the Department has received an extension to file the brief of appellee.

Issue presented: Whether Florida juvenile court has jurisdiction over dependent child who is not a lawful permanent resident of the United States.

Our client, a child directed by his Guatemalan parents to travel to Florida in the company of his uncle to work and send money home, was the subject of a dependency petition filed in the juvenile court. The uncle’s petition claimed that the parents have not supported our client and have maintained only minimal contact with him since his arrival in this country. The juvenile court held it lacked jurisdiction over the dependency petition because the child is not a lawful permanent resident of the United States. On behalf of the child, we appealed.

The district court of appeal ruled that juvenile courts have jurisdiction over undocumented immigrant children not in custody of immigration officials. However, the court affirmed the trial court's holding that our client was not a dependent child, finding that the uncle with whom our child client lived was a caregiver relative and the living arrangement precluded a finding of abandonment.

We have moved the court to certify to the Florida Supreme Court as a question of great public importance the issue of whether the Florida Statutes preclude a finding of abandonment when parents place children in the permanent care of relatives without a change in legal custody.

Issue presented: Whether revolving loan agreements at high variable interest rates originating from Glades area door-to-door air conditioning sales violate Florida common and statutory law.

We have filed suit on behalf of two clients against lending and marketing corporations and their agents for rescission, damages, injunctive relief, attorney fees, and costs with respect to high-cost air conditioning contracts allegedly marketed to African American residents of the Glades. We allege that door-to-door sales people misrepresented the loan terms as involving fixed monthly payments for a relatively short period, when in fact the monthly payments were actually minimum payments on a credit-card type balance carrying an annual interest rate of approximately twenty percent. Our complaint contains counts for common law fraud in the inducement, deceptive and unfair trade practices under the Florida Deceptive and Unfair Trade Practices Act, and the Florida statute banning lending discrimination on grounds of race.

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                LEGAL AID SOCIETY OF PALM BEACH COUNTY, INC.
                        SIGNIFICANT LITIGATION DOCKET
                             OCTOBER 27, 2004

I. Cases resolved this month

Case Name: R.L.H. v. Department of Children & Families
Court: Fourth District Court of Appeal
Attorney: Amy Genet
Legal Aid Unit: Foster Children’s Project

Issue presented: Whether juvenile court may shelter an allegedly abused or neglected baby without a sworn pleading or evidence.

Summary:

On petition by the Department of Children and Family Services, the juvenile court in Palm Beach County ordered a child newly born in Palm Beach County to Broward County parents into shelter care and the case transferred to juvenile court in Broward County. The court acted based on termination of the parents’ rights over other children in earlier cases and on suspected parental drug abuse. The parents appealed.

Representing the child as attorney ad litem, we moved to dismiss the appeal for lack of jurisdiction, arguing that under caselaw the juvenile court’s order could not be construed as the type of custody order from which a nonfinal appeal was permitted under the appellate rules. The district court of appeal denied our motion to dismiss. Appellant then filed a brief challenging on due process grounds the juvenile court’s consideration of unsworn evidence in support of its shelter order. Meanwhile, the Department dismissed its Palm Beach County dependency petition and returned the child to its parents in Broward County pending outcome of a new abuse and neglect investigation. Notwithstanding the Department’s suggestion of mootness, the district court of appeal has declined to dismiss the appeal.

Current status:

We did not file an appellate brief on the merits. Once the child was returned to parents in Broward County, we sought and obtained a discharge by the Palm Beach County juvenile court of our appointment as attorneys ad litem.

II. New cases

Case Name: B.H. v. Department of Children & Families
Court: Fourth District Court of Appeal
Attorney: Amy Genet, Michelle Hankey, Maxine Williams, William Booth
Legal Aid Units: Foster Children’s Project, Juvenile Advocacy Project

Issue presented: Whether appearance of father by telephone at advisory hearing on termination of parental rights constitutes default when the other parties do not consent.

Summary:

Over our objection, the father of our client children appeared by telephone at an advisory hearing on termination of his parental rights. Rejecting his explanations for appearing by telephone, the juvenile court found him in default for failure to personally appear. The father appealed. The court of appeal reversed, holding that a telephone appearance with a reasonable explanation constituted a personal appearance.

We moved for rehearing, to certify conflict with the opinion of another district court of appeal and to certify to the Florida Supreme Court a question of great public importance. We argued that (1) the appeal court’s opinion in this case violates the Separation of Powers Clause of the Florida Constitution by supplying an exception to the express statutory rule that only personal physical appearance is acceptable; (2) that allowing a telephone appearance over the objection of other parties violates the Rules of Judicial Administration; and (3) that the appeal court lacked authority to reverse the trial court without an abuse of discretion.

Current status:

The court of appeal has denied our motion for rehearing and for certification to the Florida Supreme Court.

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Case Name: L.I. v. Department of Children & Families
Court: Fourth District Court of Appeal
Attorney: Jane Kreusler-Walsh, Rebecca Mercier-Vargas (private counsel)
Maisa Wells (Legal Aid Society)
Legal Aid Unit: Foster Children’s Project

Issue presented: Whether termination of a child’s parental rights was supported by substantial competent evidence following admission of evidence of abuse, and order terminating parental rights, with respect to other siblings.

Summary:

The Department of Children and Families sheltered a child four months old and moved for termination of parental rights of both parents based on a history of abuse and termination of parental rights with respect to other siblings and failure of the parents to seek treatment and counseling for mental illness underlying the previous abuse. Kirsten Herndon, formerly an attorney in our Foster Children’s Project, represented the child as attorney ad litem at the termination of parental rights hearing and supported the proposed termination. The juvenile court terminated parental rights, and both parents appealed.

In our answer brief, we argue that (1) at trial the parents waived objection to appointment of an independent expert psychologist; (2) the trial court properly questioned another expert psychologist to clarify ambiguous questions by trial counsel; (3) termination of parental rights was supported by substantial competent evidence of egregious sexual abuse by the father that the mother knowingly failed to prevent, and of the ineffectiveness of any potential services to remove the risk of harm; (4) the trial court’s admission of a sibling’s account of sexual abuse against him, and the order terminating parental rights with respect to siblings, was not an abuse of discretion; (5) the parents had failed to provide the appeals court with a sufficient record for it to determine whether the juvenile court had failed to advise them of their right to a mental health advocate; and (6) the parents could not raise failure to provide them a mental health advocate for the first time on appeal.

Current status:

The case is fully briefed, and there has been no request for oral argument. We await the court’s decision.

III. Ongoing cases

Case Name: Brister v. Florida Department of Children & Family Services
Court: Fourth District Court of Appeal
Attorney: Bill Fraser
Legal Aid Unit: Class Action Project

Issue presented: Whether agency must consider eligibility for disability-related Medicaid of person claiming new disabilities since Social Security decision he is appealing.

Summary:

After denial of his claim for Social Security Disability benefits, our client applied for Medicaid, claiming new disabilities have arisen that Social Security has not yet considered. The Department of Children and Family Services treated his application for Medicaid as a family-related application and denied it when his ex-wife, who lives with our client and their common children, refused to supply proof of her financial circumstances and immigration status. We argued to a state hearing officer that DCF was required to consider our client for disability-related Medicaid, a category of aid for which his ex-wife’s circumstances are not relevant. The hearing officer ruled that Social Security’s finding of no disability is binding on DCF because Mr. Brister applied for Medicaid within a year of that finding and the Social Security decision is on appeal. We appealed the hearing officer’s decision to the District Court of Appeal.

Current status:

On October 26 we filed the appellant’s principal brief. We argue that (1) a federal regulation and DCF’s policies required an independent Medicaid disability determination when our client alleged disabilities Social Security had not yet considered, (2) when our client applied for assistance, DCF was required to consider our client’s eligibility for all forms of assistance, including disability-related Medicaid, that it administers, and (3) DCF may not consider circumstances of our client’s ex-wife in determining his eligibility for disability-related Medicaid. We await the Department’s brief.

Case Name: B.Y. v. Department of Children & Family Services
Court: Florida Supreme Court
Attorney: Michelle Hankey, Bill Booth, Maxine Williams, Barbara Briggs
Legal Aid Unit: Juvenile Advocacy Project

Issue presented: Whether State may refuse consent to grandparent adoption because final home study has not been completed.

Summary:

After terminating parental rights over three sibling children, the Department of Children and Family Services elected to pursue the children’s adoption by our client B.Y., their grandmother, who was living in temporary housing due to low income. The Department then refused to perform a final home study on B.Y.’s grandmother until she obtained permanent housing and refused to consent to the adoption because a final home study had not been completed. On request by Kirsten Herndon of the Legal Aid Society’s Foster Children’s Program, the juvenile court finalized the children’s adoption over the Department’s objection.

On appeal by the Department, a panel of the Fourth District Court of Appeal, vacating a contrary opinion by a majority of the same panel, reversed. Based on a conflict with opinions issued by other courts of appeal, we requested and obtained review by the Florida Supreme Court. In our principal brief, we argue that (1) juvenile courts have jurisdiction concurrent with the Department to finalize adoptive placement of foster children into permanent families within one year of entry into state custody, and (2) Florida statutes make the Department’s consent a sufficient but not necessary condition for finalizing adoptions.

Current Status:

Maxine Williams orally argued the case June 9. We are awaiting a decision.

Case Name: E.T. v. Department of Children & Family Services
Court: Fourth District Court of Appeal
Attorney: Amy Genet
Legal Aid Unit: Foster Children’s Project

Issue presented: Whether following exhaustion of all appeals from termination of parental rights, parent must receive evidentiary hearing on habeas petition alleging ineffective assistance of counsel.

Summary:

The biological father of a child client of our Foster Children’s Program had his parental rights terminated in juvenile court and then unsuccessfully filed an appeal, motion for rehearing, and motion for certification to the Florida Supreme Court, followed by an unsuccessful petition to the District Court of Appeal for certiorari seeking review of the juvenile court’s termination of his visitation rights. The biological father then filed in the trial court a petition for writ of habeas corpus alleging ineffective assistance of counsel.

After denial of the habeas petition, the biological father filed a petition for writ of mandamus in the Fourth District Court of Appeal arguing that he had been unlawfully denied an evidentiary hearing on his habeas petition below. The Court of Appeal has redesignated the terminated biological father’s mandamus petition as an appeal from the denial of habeas relief below, set an ordinary appellate schedule, and denied our motion to dismiss the appeal. On our motion, the Court of Appeal temporarily remanded the case for the juvenile court to exclude confidential documents from the record.

Case status:

On August 19 the Juvenile Court struck from the record twelve pleadings postdating termination of the father’s parental rights. We now await Appellant’s principal brief in the District Court of Appeal. Our child client continues to live with adoptive parents. Our client’s finalized adoption, though not stayed, remains under a cloud while habeas proceedings pend.

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Case Name: Global Travel Marketing, Inc. v. Shea
Court: Florida Supreme Court
Attorney: Michelle Hankey, William Booth, Maxine Williams, Barbara Briggs
Legal Aid Unit: Juvenile Advocacy Project

Issue presented: Whether custodial parent in commercial travel contract may waive right of child’s estate to sue for wrongful death.

Summary:

An eleven-year-old child was killed by a wild animal on an African safari in the company of his custodial mother, who on his behalf had signed a release of liability protecting the safari operator with an arbitration clause. The child’s divorced noncustodial father, as representative of the child’s estate, filed suit for wrongful death. The trial court granted defendant’s motion to stay the litigation and to compel arbitration, and the father appealed. The Legal Aid Society participated as amicus curiae before the Fourth District Court of Appeal, contending that the custodial mother lacked authority to bind the child. The District Court of Appeal agreed, holding that parents cannot waive their children’s litigation rights against commercial travel companies and certifying the issue to the Florida Supreme Court as one of great public importance. Defendant petitioned that Court for review.

Before the Florida Supreme Court as amicus curiae, we contend that (1) Florida should follow decisions of other state supreme courts precluding parents from binding their children to arbitration clauses; (2) Florida caselaw in comparable contexts precludes parents from relinquishing their children’s legal rights; and (3) the Federal Arbitration Act does not preclude resort to state public policy in determining whether a binding arbitration agreement exists.

Current status:

This case was orally argued August 31. We await a decision.

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Case Name: Haliburton v. Byrd
Court: Fourth District Court of Appeal
Attorney: Ross Baer
Legal Aid Unit: Family Law Unit

Issue presented: Whether family court abused its discretion by denying paternity respondent who filed an answer an evidentiary hearing on his allegation that he was never served with the complaint.

Summary:

Jessica Byrd, our client, filed a paternity action and, following service of process and all pleadings on respondent at the address he gave in his answer, and respondent’s failure to answer discovery or attend his trial, was awarded custody of their minor child. Six months later, after enforcement of the custody order by deputy sheriffs, respondent moved to set aside the final judgment, contending that he had never been served with the complaint or notice of final hearing. From the trial judge’s denial of his motion, respondent appealed.

On appeal we argue the record shows respondent duly served with process and all relevant papers, and denial of an evidentiary hearing was not an abuse of discretion because (1) the relevant facts appear of record; (2) respondent has not asserted grounds for relief from judgment under Rule 1.540 of the Rules of Civil Procedure; (3) respondent has not pleaded a meritorious defense to judgment on the merits; (4) respondent’s counsel failed to set her motion for evidentiary hearing; and (5) respondent has failed to provide the appellate court with an adequate record.

Current status:

The case is fully briefed. We do not expect the case to be set for oral argument, and we await the court's decision.

Case Name: Henry v. Berry
Court: Fifteenth Judicial Circuit
Attorney: Shahar Pasch
Legal Aid Unit: Elder Law Program

Issue presented: Whether joint tenant of deteriorating home may be required to execute rehabilitation loan agreement.

Summary:

Representing three sisters who own a home in West Palm Beach as joint tenants, Renee Gordon, formerly an attorney with our Elder Law Program, filed suit on June 24 against a fourth sister, also a joint tenant, for injunctive relief requiring her to join with them in executing a rehabilitation assistance loan agreement with the City. We allege that the home requires repair of roof damage, termite infestation, and rotting wood in order to avoid further deterioration, code citations and, ultimately, loss of the home, and that Plaintiffs will be irreparably harmed without relief. Defendant defaulted on the case, and we filed affidavit evidence establishing the threat to our clients’ home.

Case status:

Notwithstanding Defendant’s default, the court declined to conduct a final hearing as originally set on the motion calendar and expressed skepticism regarding availability of injunctive relief in the circumstances of this case. We have drafted a notice of voluntary dismissal and are securing instructions from our clients regarding potential alternate remedies.

_________________________________________________________________

Case Name: Hernandez v. Medows
Court: U.S. District Court for the Southern District of Florida
Attorney: Miriam Harmatz, Anne Swerlick (Florida Legal Services)
Bill Fraser (Legal Aid Society)
Jane Perkins, Lourdes Rivera (National Health Law Program)
Jim Green (private counsel re attorney fees)
Legal Aid Unit: Class Action Project

Issue presented: Extent of state official’s liability for attorney fees to prevailing party in settled case requiring notice and hearing for persons whose Medicaid claims for prescription medicine have been rejected.

Summary:

On behalf of Medicaid recipients whose prescriptions for Medicaid-furnished drugs were rejected by state computers, and on behalf of the Florida Transplant Survivors Coalition whose membership includes such persons, we sued under the Due Process Clause and federal Medicaid statutes for an injunction requiring written notice and an opportunity for hearing. The court certified a statewide class of Medicaid recipients and, with cross motions for partial summary judgment pending, the parties entered into a mediated settlement that has been approved by the court.

Under the settlement, the Florida Medicaid program must require its contract pharmacies and health maintenance organizations to provide written notice of the reasons why a drug claim has been rejected and the procedures for resolving any dispute. Aggrieved persons must contact an ombuds office to be created by Defendant before they can obtain a hearing. In certain circumstances recipients will qualify for an emergency supply of medication, and for Medicaid coverage of branded medication when a generic analog may not be medically viable. Defendant’s settlement implementation deadline was May 13, 2004.

Plaintiffs have moved for awards of $855,586 in attorney fees, including $200,326.50 for the work of the Legal Aid Society, and $12,761.35 in costs.

Current status:

We are monitoring implementation of the settlement. On our motion for attorney fees, an evidentiary hearing occurred July 27 before the magistrate judge. During the hearing, counsel for Defendant stated on the record that the award should be limited to fees of $600,000 and costs of approximately $7,000. We await the magistrate judge’s report and recommendation.

Case Name: S.H. v. Department of Children & Families
Court: Fourth District Court of Appeal
Attorney: William Booth, Michelle Hankey, Judy Ballen (private counsel)
Legal Aid Unit: Juvenile Advocacy Project

Issue presented: Whether Florida juvenile court has jurisdiction over dependent child who is not a lawful permanent resident of the United States.

Summary:

Our client, a child directed by his Guatemalan parents to travel to Florida in the company of his uncle to work and send money home, was the subject of a dependency petition filed in the juvenile court. The uncle’s petition claimed that the parents have not supported our client and have maintained only minimal contact with him since his arrival in this country. The juvenile court held it lacked jurisdiction over the dependency petition because the child is not a lawful permanent resident of the United States. On behalf of the child, we appealed.

The district court of appeal ruled that juvenile courts have jurisdiction over undocumented immigrant children not in custody of immigration officials. However, the court affirmed the trial court's holding that our client was not a dependent child, finding that the uncle with whom our child client lived was a caregiver relative and the living arrangement precluded a finding of abandonment.

Current status:

We have moved the court to certify to the Florida Supreme Court as a question of great public importance the issue of whether the Florida Statutes preclude a finding of abandonment when parents place children in the permanent care of relatives without a change in legal custody.

Case Name: Thompson v. Household Retail Services, Inc.
Court: Fifteenth Judicial Circuit
Attorney: Shahar Pasch
Chuck Elsesser (Florida Legal Services)
Legal Aid Unit: Elder Law Program

Issue presented: Whether revolving loan agreements at high variable interest rates originating from Glades area door-to-door air conditioning sales violate Florida common and statutory law.

Summary:

We have filed suit on behalf of two clients against lending and marketing corporations and their agents for rescission, damages, injunctive relief, attorney fees, and costs with respect to high-cost air conditioning contracts allegedly marketed to African American residents of the Glades. We allege that door-to-door sales people misrepresented the loan terms as involving fixed monthly payments for a relatively short period, when in fact the monthly payments were actually minimum payments on a credit-card type balance carrying an annual interest rate of approximately twenty percent. Our complaint contains counts for common law fraud in the inducement, deceptive and unfair trade practices under the Florida Deceptive and Unfair Trade Practices Act, and the Florida statute banning lending discrimination on grounds of race.

We served requests for production and interrogatories on the Defendants.

Current status:

The parties have reached verbal agreement on a confidential settlement. We are reviewing Defendants’ draft of the settlement agreement.

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LEGAL AID SOCIETY OF PALM BEACH COUNTY, INC.

SIGNIFICANT LITIGATION DOCKET

NOVEMBER 17, 2004

I. Cases resolved this month

Case Name: B.Y. v. Department of Children & Family Services

Court: Florida Supreme Court

Attorney: Michelle Hankey, Bill Booth, Maxine Williams, Barbara Briggs

Legal Aid Unit: Juvenile Advocacy Project

Issue presented: Whether State may refuse consent to grandparent adoption because final home study has not been completed.

Summary:

After terminating parental rights over three sibling children, the Department of Children and Family Services elected to pursue the children=s adoption by our client B.Y., their grandmother, who was living in temporary housing due to low income. The Department then refused to perform a final home study on B.Y.=s grandmother until she obtained permanent housing and refused to consent to the adoption because a final home study had not been completed. On request by Kirsten Herndon of the Legal Aid Society=s Foster Children=s Program, the juvenile court finalized the children=s adoption over the Department=s objection.

On appeal by the Department, a panel of the Fourth District Court of Appeal reversed. Based on a conflict with opinions issued by other courts of appeal, we requested and obtained review by the Florida Supreme Court.

Current Status:

On November 10 a unanimous court reversed the District Court of Appeal, holding that even prior to 2004 clarification of the applicable statute Florida juvenile judges had authority to finalize an adoption over the Department=s objection, at least where the Department was unreasonably withholding its consent. Broad language in the opinion of the court and a concurring opinion by two justices supports the authority of juvenile courts to enter orders protecting the best interests of children in the Department=s custody.

Case Name: Henry v. Berry

Court: Fifteenth Judicial Circuit

Attorney: Shahar Pasch

Legal Aid Unit: Elder Law Program

Issue presented: Whether joint tenant of deteriorating home may be required to execute rehabilitation loan agreement.

Summary:

Representing three sisters who own a home in West Palm Beach as joint tenants, Renee Gordon, formerly an attorney with our Elder Law Program, filed suit on June 24 against a fourth sister, also a joint tenant, for injunctive relief requiring her to join with them in executing a rehabilitation assistance loan agreement with the City. We alleged that the home requires repair of roof damage, termite infestation, and rotting wood in order to avoid further deterioration, code citations and, ultimately, loss of the home, and that Plaintiffs would be irreparably harmed without relief. Defendant defaulted on the case, and we filed affidavit evidence establishing the threat to our clients= home. Notwithstanding Defendant=s default, the court declined to conduct a final hearing as originally set on the motion calendar and expressed skepticism regarding availability of injunctive relief in the circumstances of this case.

Case status:

We have filed a notice of voluntary dismissal and are securing instructions from our clients regarding potential alternate remedies.

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Case Name: S.H. v. Department of Children & Families

Court: Fourth District Court of Appeal

Attorney: William Booth, Michelle Hankey, Judy Ballen (private counsel)

Legal Aid Unit: Juvenile Advocacy Project

Issue presented: Whether Florida juvenile court has jurisdiction over dependent child who is not a lawful permanent resident of the United States.

Summary:

Our client, a child directed by his Guatemalan parents to travel to Florida in the company of his uncle to work and send money home, was the subject of a dependency petition filed in the juvenile court. The uncle=s petition claimed that the parents have not supported our client and have maintained only minimal contact with him since his arrival in this country. The juvenile court held it lacked jurisdiction over the dependency petition because the child is not a lawful permanent resident of the United States. On behalf of the child, we appealed.

Current status:

The court of appeal has denied our motion to certify to the Florida Supreme Court as a question of great public importance the issue of whether the Florida Statutes preclude a finding of abandonment when parents place children in the permanent care of relatives without a change in legal custody. We will be closing this case.

II. New cases

Case Name: Woodard v. Jupiter Christian School

Court: Fourth District Court of Appeal

Attorney: Michelle Hankey, Bill Booth

Trent Steele (private co-counsel)

Legal Aid Units: Juvenile Advocacy Project

Issue presented: Whether clergyman and private religious school where he is employed may be found liable for clergyman=s disclosure of student=s confidential disclosure of gay sexual orientation that led to student=s expulsion.

Summary:

Represented by private counsel, our child client filed in the Civil Division of the Fifteenth Judicial Circuit a six-count lawsuit following his expulsion from a private religious school based on disclosure by clergy of his confidential revelation that he is gay. The trial court dismissed our client=s claim for negligent infliction of emotional distress with prejudice and dismissed three other counts with leave to amend. Our client appealed the dismissal with prejudice, and his private counsel asked us to pursue the appeal.

Current Status:

The court of appeal has ordered us to show cause why dismissal of the negligent infliction of emotional distress count is a final appealable order. We are preparing our memorandum of law on this point.

III. Ongoing cases

Case Name: B.H. v. Department of Children & Families

Court: Fourth District Court of Appeal

Attorney: Amy Genet, Michelle Hankey, Maxine Williams, William Booth

Legal Aid Units: Foster Children=s Project, Juvenile Advocacy Project

Issue presented: Whether appearance of father by telephone at advisory hearing on termination of parental rights constitutes default when the other parties do not consent.

Summary:

Over our objection, the father of our client children appeared by telephone at an advisory hearing on termination of his parental rights. Rejecting his explanations for appearing by telephone, the juvenile court found him in default for failure to personally appear. The father appealed. The court of appeal reversed, holding that a telephone appearance with a reasonable explanation constituted a personal appearance.

We moved for rehearing, to certify conflict with the opinion of another district court of appeal and to certify to the Florida Supreme Court a question of great public importance. We argued that (1) the appeal court=s opinion in this case violates the Separation of Powers Clause of the Florida Constitution by supplying an exception to the express statutory rule that only personal physical appearance is acceptable; (2) that allowing a telephone appearance over the objection of other parties violates the Rules of Judicial Administration; and (3) that the appeal court lacked authority to reverse the trial court without an abuse of discretion. The court of appeal denied our motion.

Current status:

We are preparing a notice to invoke the jurisdiction of the Florida Supreme Court because the opinion of the district court of appeal conflicts with that of another district court of appeal.

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Case Name: Brister v. Florida Department of Children & Family Services

Court: Fourth District Court of Appeal

Attorney: Bill Fraser

Legal Aid Unit: Class Action Project

Issue presented: Whether agency must consider eligibility for disability-related Medicaid of person claiming new disabilities since Social Security decision he is appealing.

Summary:

After denial of his claim for Social Security Disability benefits, our client applied for Medicaid, claiming new disabilities have arisen that Social Security has not yet considered. The Department of Children and Family Services treated his application for Medicaid as a family-related application and denied it when his ex-wife, who lives with our client and their common children, refused to supply proof of her financial circumstances and immigration status. We argued to a state hearing officer that DCF was required to consider our client for disability-related Medicaid, a category of aid for which his ex-wife=s circumstances are not relevant. The hearing officer ruled that Social Security=s finding of no disability is binding on DCF because Mr. Brister applied for Medicaid within a year of that finding and the Social Security decision is on appeal.

We appealed the hearing officer=s decision to the District Court of Appeal. In our principal brief, we contend that (1) a federal regulation and DCF=s policies required an independent Medicaid disability determination when our client alleged disabilities Social Security had not yet considered, (2) when our client applied for assistance, DCF was required to consider our client=s eligibility for all forms of assistance, including disability-related Medicaid, that it administers, and (3) DCF may not consider circumstances of our client=s ex-wife in determining his eligibility for disability-related Medicaid.

Current status:

We are reviewing the Department=s brief and are considering whether a reply brief is necessary.

Case Name: E.T. v. Department of Children & Family Services

Court: Fourth District Court of Appeal

Attorney: Amy Genet

Julie Littky-Rubin (private co-counsel)

Legal Aid Unit: Foster Children=s Project

Issue presented: Whether following exhaustion of all appeals from termination of parental rights, parent must receive evidentiary hearing on habeas petition alleging ineffective assistance of counsel.

Summary:

The biological father of a child client of our Foster Children=s Program had his parental rights terminated in juvenile court and then unsuccessfully filed an appeal, motion for rehearing, and motion for certification to the Florida Supreme Court, followed by an unsuccessful petition to the District Court of Appeal for certiorari seeking review of the juvenile court=s termination of his visitation rights. The biological father then filed in the trial court a petition for writ of habeas corpus alleging ineffective assistance of counsel.

After denial of the habeas petition, the biological father filed a petition for writ of mandamus in the Fourth District Court of Appeal arguing that he had been unlawfully denied an evidentiary hearing on his habeas petition below. The Court of Appeal has redesignated the terminated biological father=s mandamus petition as an appeal from the denial of habeas relief below, set an ordinary appellate schedule, and denied our motion to dismiss the appeal.

Case status:

On November 1 we filed our principal brief, arguing that (1) terminated parents may not base collateral attacks against final adoption of their children on alleged ineffectiveness of their counsel in termination of parental rights proceedings, especially where appellate counsel different from their trial counsel had opportunity to raise the issue on direct appeal, and (2) failure of a terminated parent to seek a stay of adoption proceedings bars a subsequent collateral attack on the adoption under the doctrine of laches.

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Case Name: Global Travel Marketing, Inc. v. Shea

Court: Florida Supreme Court

Attorney: Michelle Hankey, William Booth, Maxine Williams, Barbara Briggs

Legal Aid Unit: Juvenile Advocacy Project

Issue presented: Whether custodial parent in commercial travel contract may waive right of child=s estate to sue for wrongful death.

Summary:

An eleven-year-old child was killed by a wild animal on an African safari in the company of his custodial mother, who on his behalf had signed a release of liability protecting the safari operator with an arbitration clause. The child=s divorced noncustodial father, as representative of the child=s estate, filed suit for wrongful death. The trial court granted defendant=s motion to stay the litigation and to compel arbitration, and the father appealed. The Legal Aid Society participated as amicus curiae before the Fourth District Court of Appeal, contending that the custodial mother lacked authority to bind the child. The District Court of Appeal agreed, holding that parents cannot waive their children=s litigation rights against commercial travel companies and certifying the issue to the Florida Supreme Court as one of great public importance. Defendant petitioned that Court for review.

Before the Florida Supreme Court as amicus curiae, we contend that (1) Florida should follow decisions of other state supreme courts precluding parents from binding their children to arbitration clauses; (2) Florida caselaw in comparable contexts precludes parents from relinquishing their children=s legal rights; and (3) the Federal Arbitration Act does not preclude resort to state public policy in determining whether a binding arbitration agreement exists.

Current status:

This case was orally argued August 31. We await a decision.

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Case Name: Haliburton v. Byrd

Court: Fourth District Court of Appeal

Attorney: Ross Baer

Legal Aid Unit: Family Law Unit

Issue presented: Whether family court abused its discretion by denying paternity respondent who filed an answer an evidentiary hearing on his allegation that he was never served with the complaint.

Summary:

Jessica Byrd, our client, filed a paternity action and, following service of process and all pleadings on respondent at the address he gave in his answer, and respondent=s failure to answer discovery or attend his trial, was awarded custody of their minor child. Six months later, after enforcement of the custody order by deputy sheriffs, respondent moved to set aside the final judgment, contending that he had never been served with the complaint or notice of final hearing. From the trial judge=s denial of his motion, respondent appealed.

On appeal we argue the record shows respondent duly served with process and all relevant papers, and denial of an evidentiary hearing was not an abuse of discretion because (1) the relevant facts appear of record; (2) respondent has not asserted grounds for relief from judgment under Rule 1.540 of the Rules of Civil Procedure; (3) respondent has not pleaded a meritorious defense to judgment on the merits; (4) respondent=s counsel failed to set her motion for evidentiary hearing; and (5) respondent has failed to provide the appellate court with an adequate record.

Current status:

The case is fully briefed. We do not expect the case to be set for oral argument, and we await the court's decision.

Case Name: Hernandez v. Medows

Court: U.S. District Court for the Southern District of Florida

Attorney: Miriam Harmatz, Anne Swerlick (Florida Legal Services)

Bill Fraser (Legal Aid Society)

Jane Perkins, Lourdes Rivera (National Health Law Program)

Jim Green (private counsel re attorney fees)

Legal Aid Unit: Class Action Project

Issue presented: Extent of state official=s liability for attorney fees to prevailing party in settled case requiring notice and hearing for persons whose Medicaid claims for prescription medicine have been rejected.

Summary:

Under the settlement, the Florida Medicaid program must require its contract pharmacies and health maintenance organizations to provide written notice of the reasons why a drug claim has been rejected and the procedures for resolving any dispute. Aggrieved persons must contact an ombuds office to be created by Defendant before they can obtain a hearing. In certain circumstances recipients will qualify for an emergency supply of medication, and for Medicaid coverage of branded medication when a generic analog may not be medically viable. Defendant=s settlement implementation deadline was May 13, 2004.

Plaintiffs have moved for awards of $855,586 in attorney fees, including $200,326.50 for the work of the Legal Aid Society, and $12,761.35 in costs.

Current status:

We are monitoring implementation of the settlement. On our motion for attorney fees, an evidentiary hearing occurred July 27 before the magistrate judge. During the hearing, counsel for Defendant stated on the record that the award should be limited to fees of $600,000 and costs of approximately $7,000. We await the magistrate judge=s report and recommendation.

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Case Name: L.I. v. Department of Children & Families

Court: Fourth District Court of Appeal

Attorney: Jane Kreusler-Walsh, Rebecca Mercier-Vargas (private counsel)

Maisa Wells (Legal Aid Society)

Legal Aid Unit: Foster Children=s Project

Issue presented: Whether termination of a child=s parental rights was supported by substantial competent evidence following admission of evidence of abuse, and order terminating parental rights, with respect to other siblings.

Summary:

The Department of Children and Families sheltered a child four months old and moved for termination of parental rights of both parents based on a history of abuse and termination of parental rights with respect to other siblings and failure of the parents to seek treatment and counseling for mental illness underlying the previous abuse. Kirsten Herndon, formerly an attorney in our Foster Children=s Project, represented the child as attorney ad litem at the termination of parental rights hearing and supported the proposed termination. The juvenile court terminated parental rights, and both parents appealed.

In our answer brief, we argued that (1) at trial the parents waived objection to appointment of an independent expert psychologist; (2) the trial court properly questioned another expert psychologist to clarify ambiguous questions by trial counsel; (3) termination of parental rights was supported by substantial competent evidence of egregious sexual abuse by the father that the mother knowingly failed to prevent, and of the ineffectiveness of any potential services to remove the risk of harm; (4) the trial court=s admission of a sibling=s account of sexual abuse against him, and the order terminating parental rights with respect to siblings, was not an abuse of discretion; (5) the parents had failed to provide the appeals court with a sufficient record for it to determine whether the juvenile court had failed to advise them of their right to a mental health advocate; and (6) the parents could not raise failure to provide them a mental health advocate for the first time on appeal.

Current status:

On November 10 without opinion the court affirmed per curiam the termination of the parental rights of both parents. We are awaiting expiration of the period for the terminated parents to move for rehearing before proceeding further in the trial court to ensure a prompt adoptive placement for the children.

Issue presented: Whether revolving loan agreements at high variable interest rates originating from Glades area door-to-door air conditioning sales violate Florida common and statutory law.

We filed suit on behalf of two clients against lending and marketing corporations and their agents for rescission, damages, injunctive relief, attorney fees, and costs with respect to high-cost air conditioning contracts allegedly marketed to African American residents of the Glades. We alleged that door-to-door sales people misrepresented the loan terms as involving fixed monthly payments for a relatively short period, when in fact the monthly payments were actually minimum payments on a credit-card type balance carrying an annual interest rate of approximately twenty percent. Our complaint contained counts for common law fraud in the inducement, deceptive and unfair trade practices under the Florida Deceptive and Unfair Trade Practices Act, and the Florida statute banning lending discrimination on grounds of race.

The parties have executed a confidential settlement agreement. We are preparing a notice of dismissal for filing with the court.

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LEGAL AID SOCIETY OF PALM BEACH COUNTY, INC.
SIGNIFICANT LITIGATION DOCKET
JANUARY 26, 2005

I. Cases resolved this month

Case Name: B.H. v. Department of Children & Families
Court: Fourth District Court of Appeal
Attorney: Amy Genet, Michelle Hankey, Maxine Williams, William Booth
Legal Aid Units: Foster Children’s Project, Juvenile Advocacy Project

Issue presented: Whether appearance of father by telephone at advisory hearing on termination of parental rights constitutes default when the other parties do not consent.

Summary:

Over our objection, the father of our client children appeared by telephone at an advisory hearing on termination of his parental rights. Rejecting his explanations for appearing by telephone, the juvenile court found him in default for failure to personally appear. The father appealed. The court of appeal reversed, holding that a telephone appearance with a reasonable explanation constituted a personal appearance.

We petitioned the Florida Supreme Court to accept jurisdiction, arguing that (1) the opinion of the district court of appeal conflicted with the opinion of another district court of appeal requiring actual physical presence; and (2) the appeal court’s opinion in this case violated the Separation of Powers Clause of the Florida Constitution by supplying an exception to the express statutory rule that only personal physical appearance is acceptable.

Current status:

On January 6, 2005, the Florida Supreme Court declined to accept jurisdiction and denied our petition for review. We continue to represent the children in dependency proceedings before the juvenile court.

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Case Name: L.I. v. Department of Children & Families
Court: Fourth District Court of Appeal
Attorney: Jane Kreusler-Walsh, Rebecca Mercier-Vargas (private counsel)
Maisa Wells (Legal Aid Society)
Legal Aid Unit: Foster Children’s Project

Issue presented: Whether termination of a child’s parental rights was supported by substantial competent evidence following admission of evidence of abuse, and order terminating parental rights, with respect to other siblings.

Summary:

The Department of Children and Families sheltered a child four months old and moved for termination of parental rights of both parents based on a history of abuse and termination of parental rights with respect to other siblings and failure of the parents to seek treatment and counseling for mental illness underlying the previous abuse. Kirsten Herndon, formerly an attorney in our Foster Children’s Project, represented the child as attorney ad litem at the termination of parental rights hearing and supported the proposed termination. The juvenile court terminated parental rights, and both parents appealed.

In our answer brief, we argued that (1) at trial the parents waived objection to appointment of an independent expert psychologist; (2) the trial court properly questioned another expert psychologist to clarify ambiguous questions by trial counsel; (3) termination of parental rights was supported by substantial competent evidence of egregious sexual abuse by the father that the mother knowingly failed to prevent, and of the ineffectiveness of any potential services to remove the risk of harm; (4) the trial court’s admission of a sibling’s account of sexual abuse against him, and the order terminating parental rights with respect to siblings, was not an abuse of discretion; (5) the parents had failed to provide the appeals court with a sufficient record for it to determine whether the juvenile court had failed to advise them of their right to a mental health advocate; and (6) the parents could not raise failure to provide them a mental health advocate for the first time on appeal. On November 10, 2004, without opinion the court affirmed per curiam the termination of the parental rights of both parents.

Current status:

We are now representing the children in the trial court to ensure they receive a prompt adoptive placement.

Case Name: Thompson v. Household Retail Services, Inc.
Court: Fifteenth Judicial Circuit
Attorney: Shahar Pasch
Chuck Elsesser (Florida Legal Services)
Legal Aid Unit: Elder Law Program

Issue presented: Whether revolving loan agreements at high variable interest rates originating from Glades area door-to-door air conditioning sales violate Florida common and statutory law.

Summary:

We filed suit on behalf of two clients against lending and marketing corporations and their agents for rescission, damages, injunctive relief, attorney fees, and costs with respect to high-cost air conditioning contracts allegedly marketed to African American residents of the Glades. We alleged that door-to-door sales people misrepresented the loan terms as involving fixed monthly payments for a relatively short period, when in fact the monthly payments were actually minimum payments on a credit-card type balance carrying an annual interest rate of approximately twenty percent. Our complaint contained counts for common law fraud in the inducement, deceptive and unfair trade practices under the Florida Deceptive and Unfair Trade Practices Act, and the Florida statute banning lending discrimination on grounds of race.

Current status:

The parties have executed a confidential settlement agreement. The case has been dismissed.

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Case Name: V.S. v. Guardian ad Litem Program
Court: Fourth District Court of Appeal
Attorney: Maxine Williams, Michelle Hankey, William Booth
Legal Aid Unit: Juvenile Advocacy Project

Issue presented: Whether an order allowing an appointed guardian ad litem unrestricted access to all of a dependent child’s records until the child asserts pertinent privileges violates those privileges or the right to privacy.

Summary:

On the same day the trial court appointed us to represent the child V.S. in dependency proceedings and a guardian ad litem for V.S. The form order submitted by the GAL program and signed by the court permitted the GAL immediate access to all of V.S.’s medical, mental health, educational, and substance abuse services records. The order entitled V.S. to notice that her mental health records had been disclosed and a hearing regarding the disclosure only after she asserts the psychotherapist-patient privilege. The order did not address any other privileges.

We moved the trial court for rehearing or to strike the offending paragraphs of its order. When the trial court denied our motion, we petitioned the district court of appeal for writ of certiorari. In our certiorari petition, we argued (1) the appellate court has certiorari jurisdiction because any releases of privileged information pursuant to the trial court’s order would cause injury not correctable on final appeal; (2) the child is statutorily entitled to notice and hearing on records requests individually before any confidential records are released to the GAL; (3) federal law does not preempt the child’s exercise of privileges granted by Florida law; (4) the general protections against release of medical records, educational records, and substance abuse services records should extend to dependent children; and (5) the dependency statutes grant no immunity to guardians ad litem from assertions of privilege by dependent children.

Current status:

The appeal court dismissed our petition as untimely, because our time to file it was not tolled during the lengthy period the trial court had our motion for rehearing under advisement. Although it will still be possible to assert our client’s privileges in the trial court, we may be unable to do so before the GAL program already has the privileged information.

II. New cases

See V.S. v. Guardian ad Litem Program, reported in previous section.
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Case Name: Department of Children & Families v. T.R.
Court: Fourth District Court of Appeal
Attorney: Maxine Williams
Legal Aid Unit: Juvenile Advocacy Project

Issue presented: Whether a Florida juvenile court has authority to order provision by the child welfare bureaucracy at state cost of independent living services to a dependent child that will continue beyond the child’s eighteenth birthday.

Summary:

After a year and a half in state care, our dependent child client approaching her eighteenth birthday had received no independent living skills training from the Department of Children and Family Services. The juvenile court, concerned that our client was on the verge of leaving state care completely unequipped to live independently, ordered the Department to provide independent living services to her at state cost. As this order obligates the Department to pay for services beyond our client’s eighteenth birthday and potentially until age 23, DCF appealed.

Current status:

We await the Department’s principal brief.

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Case Name: J.G.W. v. Department of Children & Families
Court: Fourth District Court of Appeal
Attorney: William Booth, Michelle Hankey
Legal Aid Unit: Juvenile Advocacy Project

Issue presented: Whether a court-appointed attorney ad litem has legal standing to move the juvenile court to shelter the child client.

Summary:

Following our appointment as attorney ad litem for a child in delinquency proceedings, we learned that our child client’s caretaker no longer wanted the care of our client. Alleging that this constituted abandonment, we petitioned the juvenile court for an order requiring the child be sheltered. The Department of Children and Family Services objected, arguing that we lack standing as attorneys ad litem to file such a motion. The court dismissed our petition, and we appealed.

Current status:

Our appeal is on an expedited briefing schedule, with our principal brief due February 24, 2005. We are awaiting preparation of the record. III. Ongoing cases

Case Name: Brister v. Florida Department of Children & Family Services
Court: Fourth District Court of Appeal
Attorney: Bill Fraser
Legal Aid Unit: Class Action Project

Issue presented: Whether agency must consider eligibility for disability-related Medicaid of person claiming new disabilities since Social Security decision he is appealing.

Summary:

After denial of his claim for Social Security Disability benefits, our client applied for Medicaid, claiming new disabilities have arisen that Social Security has not yet considered. The Department of Children and Family Services treated his application for Medicaid as a family-related application and denied it when his ex-wife, who lives with our client and their common children, refused to supply proof of her financial circumstances and immigration status. We argued to a state hearing officer that DCF was required to consider our client for disability-related Medicaid, a category of aid for which his ex-wife’s circumstances are not relevant. The hearing officer ruled that Social Security’s finding of no disability is binding on DCF because Mr. Brister applied for Medicaid within a year of that finding and the Social Security decision is on appeal.

We appealed the hearing officer’s decision to the District Court of Appeal. In our principal brief, we contend that (1) a federal regulation and DCF’s policies required an independent Medicaid disability determination when our client alleged disabilities Social Security had not yet considered, (2) when our client applied for assistance, DCF was required to consider our client’s eligibility for all forms of assistance, including disability-related Medicaid, that it administers, and (3) DCF may not consider circumstances of our client’s ex-wife in determining his eligibility for disability-related Medicaid.

Current status:

We are reviewing the Department’s brief and are considering whether a reply brief is necessary.

Case Name: E.T. v. Department of Children & Family Services
Court: Fourth District Court of Appeal
Attorney: Amy Genet
Julie Littky-Rubin (private co-counsel)
Legal Aid Unit: Foster Children’s Project

Issue presented: Whether following exhaustion of all appeals from termination of parental rights, parent must receive evidentiary hearing on habeas petition alleging ineffective assistance of counsel.

Summary:

The biological father of a child client of our Foster Children’s Program had his parental rights terminated in juvenile court and then unsuccessfully filed an appeal, motion for rehearing, and motion for certification to the Florida Supreme Court, followed by an unsuccessful petition to the District Court of Appeal for certiorari seeking review of the juvenile court’s termination of his visitation rights. The biological father then filed in the trial court a petition for writ of habeas corpus alleging ineffective assistance of counsel.

After denial of the habeas petition, the biological father filed a petition for writ of mandamus in the Fourth District Court of Appeal arguing that he had been unlawfully denied an evidentiary hearing on his habeas petition below. The Court of Appeal redesignated the terminated biological father’s mandamus petition as an appeal from the denial of habeas relief below. In our principal brief on this appeal, we argue that (1) terminated parents may not base collateral attacks against final adoption of their children on alleged ineffectiveness of their counsel in termination of parental rights proceedings, especially where appellate counsel different from their trial counsel had opportunity to raise the issue on direct appeal, and (2) failure of a terminated parent to seek a stay of adoption proceedings bars a subsequent collateral attack on the adoption under the doctrine of laches.

Case status:

The appeal is fully briefed and awaiting decision by the court.

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Case Name: Global Travel Marketing, Inc. v. Shea
Court: Florida Supreme Court
Attorney: Michelle Hankey, William Booth, Maxine Williams, Barbara Briggs
Legal Aid Unit: Juvenile Advocacy Project

Issue presented: Whether custodial parent in commercial travel contract may waive right of child’s estate to sue for wrongful death.

Summary:

An eleven-year-old child was killed by a wild animal on an African safari in the company of his custodial mother, who on his behalf had signed a release of liability protecting the safari operator with an arbitration clause. The child’s divorced noncustodial father, as representative of the child’s estate, filed suit for wrongful death. The trial court granted defendant’s motion to stay the litigation and to compel arbitration, and the father appealed. The Legal Aid Society participated as amicus curiae before the Fourth District Court of Appeal, contending that the custodial mother lacked authority to bind the child. The District Court of Appeal agreed, holding that parents cannot waive their children’s litigation rights against commercial travel companies and certifying the issue to the Florida Supreme Court as one of great public importance. Defendant petitioned that Court for review.

Before the Florida Supreme Court as amicus curiae, we contend that (1) Florida should follow decisions of other state supreme courts precluding parents from binding their children to arbitration clauses; (2) Florida caselaw in comparable contexts precludes parents from relinquishing their children’s legal rights; and (3) the Federal Arbitration Act does not preclude resort to state public policy in determining whether a binding arbitration agreement exists.

Current status:

This case was orally argued August 31. We await a decision.

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Case Name: Haliburton v. Byrd
Court: Fourth District Court of Appeal
Attorney: Ross Baer
Legal Aid Unit: Family Law Unit

Issue presented: Whether family court abused its discretion by denying paternity respondent who filed an answer an evidentiary hearing on his allegation that he was never served with the complaint.

Summary:

Jessica Byrd, our client, filed a paternity action and, following service of process and all pleadings on respondent at the address he gave in his answer, and respondent’s failure to answer discovery or attend his trial, was awarded custody of their minor child. Six months later, after enforcement of the custody order by deputy sheriffs, respondent moved to set aside the final judgment, contending that he had never been served with the complaint or notice of final hearing. From the trial judge’s denial of his motion, respondent appealed.

On appeal we argue the record shows respondent duly served with process and all relevant papers, and denial of an evidentiary hearing was not an abuse of discretion because (1) the relevant facts appear of record; (2) respondent has not asserted grounds for relief from judgment under Rule 1.540 of the Rules of Civil Procedure; (3) respondent has not pleaded a meritorious defense to judgment on the merits; (4) respondent’s counsel failed to set her motion for evidentiary hearing; and (5) respondent has failed to provide the appellate court with an adequate record.

Current status:

The case is fully briefed. We do not expect the case to be set for oral argument, and we await the court's decision.

Case Name: Hernandez v. Medows
Court: U.S. District Court for the Southern District of Florida
Attorney: Miriam Harmatz, Anne Swerlick (Florida Legal Services)
Bill Fraser (Legal Aid Society)
Jane Perkins, Lourdes Rivera (National Health Law Program)
Jim Green (private counsel re attorney fees)
Legal Aid Unit: Class Action Project

Issue presented: Extent of state official’s liability for attorney fees to prevailing party in settled case requiring notice and hearing for persons whose Medicaid claims for prescription medicine have been rejected.

Summary:

On behalf of Medicaid recipients whose prescriptions for Medicaid-furnished drugs were rejected by state computers, and on behalf of the Florida Transplant Survivors Coalition whose membership includes such persons, we sued under the Due Process Clause and federal Medicaid statutes for an injunction requiring written notice and an opportunity for hearing. The court certified a statewide class of Medicaid recipients and, with cross motions for partial summary judgment pending, the parties entered into a mediated settlement that has been approved by the court.

Under the settlement, the Florida Medicaid program must require its contract pharmacies and health maintenance organizations to provide written notice of the reasons why a drug claim has been rejected and the procedures for resolving any dispute. Aggrieved persons must contact an ombuds office to be created by Defendant before they can obtain a hearing. In certain circumstances recipients will qualify for an emergency supply of medication, and for Medicaid coverage of branded medication when a generic analog may not be medically viable. Defendant’s settlement implementation deadline was May 13, 2004.

Plaintiffs have moved for awards of $855,586 in attorney fees, including $200,326.50 for the work of the Legal Aid Society, and $12,761.35 in costs. An evidentiary hearing occurred July 27, and we await the magistrate judge’s report and recommendation.

Current status:

Based on a concession by counsel for Defendant during the evidentiary hearing on attorney fees that an award of $600,000 in fees and $7,000 in costs would be reasonable, we have moved for an interim award of those amounts pending the court’s final ruling on attorney fees. We continue to monitor Defendant’s implementation of the settlement agreement.

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Case Name: Woodard v. Jupiter Christian School
Court: Fourth District Court of Appeal
Attorney: Michelle Hankey, Bill Booth
Trent Steele (private co-counsel)
Legal Aid Units: Juvenile Advocacy Project

Issue presented: Whether clergyman and private religious school where he is employed may be found liable for clergyman’s disclosure of student’s confidential disclosure of gay sexual orientation that led to student’s expulsion.

Summary:

Represented by private counsel, our child client filed in the Civil Division of the Fifteenth Judicial Circuit a six-count lawsuit following his expulsion from a private religious school based on disclosure by clergy of his confidential revelation that he is gay. Citing the “impact rule,” the trial court dismissed our client’s negligent infliction count with prejudice because our client had not alleged physical injury as well as emotional damage. The trial court also dismissed three other counts with leave to amend. Our client appealed the dismissal with prejudice, and his private counsel asked us to pursue the appeal. The court of appeal then ordered us to show cause why dismissal of the negligent infliction of emotional distress count was a final appealable order.

Current Status:

On December 8, 2004, the court, upon review of our jurisdictional memorandum, ordered the appeal to proceed. In our principal brief, we argue that the Florida Supreme Court has held emotional damage sufficient for recovery in actions for breach of fiduciary duty involving disclosure of confidential information, regardless of whether the obligation of confidentiality stems from statute or another source. We are evaluating the Defendant-Appellees’ response brief for reply.