If one believes that the failure to provide proper services to mentally ill defendants in criminal cases in Broward County is a serious problem, one should see what the problems are in the Broward Dependency Court and what goes on in that court system.
Shielded from public scrutiny, the dependency court is a place where children and their parents are often denied essential services and legal protections resulting in children being removed from their homes, inappropriately placed for extremely long periods of time in “temporary placements” where they are often separated from siblings, and can wait months and even years before being returned to their parents or placed with relatives or for adoption.
Most children in Broward County are the only parties unrepresented by attorneys in dependency court proceedings. Every other party–—the Department of Children and Families (DCF), the parents, and the Guardian Ad Litem Program—has its own lawyer. Except in very limited situations, children are left with no lawyer. The Florida legislature did pass a bill effective in July 2014 providing some lawyers to some children in some dependency cases. However, in at least one case, 7 months after the bill went into effect, no one in the Broward courtroom—from the judge to the lawyers—was aware of the law. About $900,000 of the $5 million appropriated by the legislature to implement the law has been spent. $199,000 was spent in Pinellas and Pasco counties for 254 attorney appointments. In Broward County, with a slightly larger population, only $25,000 was spent on 35 attorney appointments.
There also are multiple shortcomings in the GAL Program. The GAL Program does not represent the legal rights of children although it often says it does. Most participants in the dependency court incorrectly think that the GAL Program is the child’s legal representative. It is not. The GAL Program only represents the “best interests” of the child as it sees it through the eyes of its volunteers or staff. Even then GAL Program volunteers and its lawyers—there are over 145 GAL attorneys statewide—are only able to represent the “best interests” of just under 50 % of the approximately 1500 children before the Broward Dependency Court. This is the case despite the fact that the statewide budget of the GAL Program is over $42 million.
The volunteer GALs are everyday people with 30 hours training. They include, for example, a retired bail bondsman, a real estate agent, and snow birds. The volunteers regularly provide opinions on matters that require medical, mental health, and educational expertise. Despite the fact that the Program’s own guidelines say that the GAL may not offer expert opinions, these well-meaning people often do. Further, the GAL lawyers describe their role as “best interest lawyers” whose client is the best interest of the child. Of course, this is legally impossible. Lawyers do not represent ideas. Their clients are not the child. As such they may not speak to the child nor give the child legal advice.
In Broward—for reasons lost in history— DCF is represented by the Attorney General’s Office unlike in most of the rest of the state where the Department hires its own lawyers. These lawyers seem to lack an understanding of who their client is, suggesting in court that they have a confidential relationship with ChildNet, the private provider of services in Broward as well as with the Broward Sheriff’s Office. What these lawyers lack is anyone in the Department as their client. These lawyers then act as both lawyer and client. Employees of ChildNet, on the other hand, often think incorrectly that the AG is their lawyer. ChildNet actually has its own staff of lawyers.
Things are no better with the lawyers who represent parents. The Office of Regional Counsel, a state operated and funded office, lacks adequate resources. Lawyers regularly leave that office because of working conditions including caseloads that surpass national standards.
Finally, Judges in the dependency court can sit on decisions for cases for months without resolution. It may take upwards of six months to get an opinion from a judge once the case is tried. The judges appear to be unfamiliar with rules of evidence and proper court room decorum. For example, in one case, the judge and lawyers discussed women’s underwear during a break while parties were present. In another case, a lawyer examined a witness while drinking a cup of Starbuck’s coffee. In another court, the judge on occasion brought cookies into the courtroom. And in one case, after the AG couldn’t ask questions to show that a person was an expert witness, the judge took over the questioning only to sustain objections to the judge’s own questions.
Just as recently happened with mentally ill criminal defendants in Broward County, a county wide response to this serious and long standing problem of protection of abused and neglected children is necessary. The first and simplest answer is to give all children in Broward County their own lawyer. Then at least a professional will be solely responsible to protect the child’s legal interests.
Michael J. Dale is a professor of law at Nova Southeastern University College of Law. Louis M. Reidenberg is an attorney.
