Supreme Court Committee on Families and Children in the Court (FCC)
January 10-11, 2008
Tallahassee, Florida
Minutes
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Members Present:
CHAIR: Judge Nikki Clark
Judge David Gooding
Judge Ellen Venzer (by phone)
Judge Herbert Baughman
Judge Marci Goodman (Friday seesion only)
Judge Robert Evans
Judge Robert Morris
Judge Steven Leifman (Thursday session only)
Judge Sue Robbins
Magistrate Jon Johnson
Kent Spuhler
Tom Mato
Jean Adel Williams
Mary Vanden Brook
Peggy Sanford
OCI Staff Present:
Rose Patterson
Sandy Neidert
Dana Dowling
Linda McNeil
Kelly Gandy
Others Present:
Dennis Moore
Gayla Sumner
Blan Teagle (Thursday only)
Other OCI Staff Present:
Austin Newberry
Avron Bernstein
Chris Korn
Jennifer Grandal
Kathleen Tailer
Susan Proctor
Natalie Miller
Tameka Francis
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Opening. January 10, 2008. Judge Clark opened the meeting and welcomed all members. The FCC Committee (Committee) will meet again on May 19, 2008 to approve the final report to be sent to the Florida Supreme Court. They will also discuss and prioritize recommendations for the 08-10 FCC term. The minutes from the October 16, 2007 meeting were presented for discussion and approval. They were approved.
Report on FCC and the Bar’s proposed 12.010 rule changes. Judge Robbins reported that there was a dispute as to the language. The proposed rule pertains to the “purpose” section of the rule. The FCC wants to use language already adopted by the Florida Supreme Court in a 2001 opinion. Judge Alexander supported using paraphrased language. Judge McNeill favors using language from Ontario’s rules. The FCC discussed possible mediation of the issue which was eventually withdrawn. Judge Robbins stated that Judge McNeill of Family Law Rules Committee was now seeking an extension of time until August 1, 2008. The rules committee has filed for an extension. Judge Robbins moved for the FCC to agree to support the extension of time. Motion passed without exception.
Report on Bar’s Rule Proposals. Avron Bernstein reported on proposed changes to Florida Rules of Juvenile Procedure 8.165 requiring a juvenile have a chance to talk with counsel before waiving counsel. The Judicial Rules committee had a first reading and they were going to meet again next week. Ineffective assistance of counsel was another issue before the rules committee. The concern is whether or not there is a substantive right at issue. Proposed procedures are a collateral proceeding or a direct appeal. Both options have proponents.
Legislative update. Avron Bernstein presented a legislative update using a chart that was included in the Steering Committee materials.
HB 45 - adoption by homosexuals.
HB 103 - would amend the definition of child abuse to include mental injury.
HB 145 - is a UFC bill that puts UFC supporting language in several sections of the law, including chapter 39. The bill uses the language from the 2001 SCT decision.
HB 271 - amends chapter 39.806 to create a new statutory ground to TPR related to sexual assault of a juvenile.
SB 140 - would limit the use of restraints on children in court.
SB 374 - would require the courts to appoint counsel for children in dependency cases.
SB 608 - would reinstate a determination of indigency and do away with the payment plans for indigents in family law cases.
The Full Committee then heard presentations from each subcommittee chair and voted on each subcommittee’s recommendations for the Court. The recommendations approved by the Committee will be included in a Final Report for the Court and reviewed by the Committee at the May 19th meeting, and then ultimately filed with the Court in June.
Subcommittee 1 Report. Judge Baumann reported on rule proposals regarding children aging out. The subcommittee approved a checklist insert for the Dependency Benchbook regarding independent living (IL). They also suggested a rule change to require teenagers come to court for their hearings. There is disagreement about the appropriate age for this requirement. The proposed rule states 16. One statutory proposed change was to provide IL services to youth in DJJ. DJJ via Jack Ahearn will file with the legislature, but a funding source is unknown. Judge Bauman also stated that there is a need to appoint a medical advocate for mentally retarded children at age 17 to bridge the gap until a guardian can be appointed after the child reaches 18 years of age. A discussion ensued.
FCC considered the subcommittee’s recommendations issue by issue:
1. Recommendation to revise Rule 8.255 requiring 16 year olds to appear in court. Approved. Judge Robbins expressed concerns about children missing school for hearings that were procedural or did not involve the child.
2. Recommendation to approve the Dependency Benchbook checklist for Independent Living. Approved.
3. Recommendation to extend jurisdiction to all children until age 19. Subcommittee suggests further study of this issue. Concerns rose over the budgetary impact. Motion by Judge Gooding to further study the issue. Approved.
Discussion ensued regarding OSCA protocol suggesting areas needing legislative action. Identifying areas that could/should be solved by legislative action.
4. Recommendation to study a way to create medical advocates for children with developmental disabilities aging out. Solution will probably be legislative. Approved.
5. Recommendation to provide Independent Living services to children in DJJ facilities that are aging out. Motion by Judge Gooding further study the issue and give support to DJJ’s efforts to solve this issue. The current DJJ proposed legislation addresses all youth, not just dependent children. Approved.
Subcommittee 5 Report. Judge Evan’s reported that the subcommittee was originally supposed to develop a standard child support order for the state. It was not feasible because too many different courts are deciding child support. The subcommittee then developed a cover/summary sheet that included vital information. Use of the cover/summary sheet would be implemented by a family law rule change. The rule is to be raised at a Juveniles Rules Committee meeting being held next week. The cover sheet would be attached to the final order in each child support case. Judge Clark suggested the form be printed on a different colored sheet so that judges could easily locate it within a file. Subcommittee recommends cover sheet as a Florida Supreme Court family law form and that a proposed family law rule be sent to committee. Approved.
Subcommittee 7 Report. Judge Robbins identified issues regarding the implementation of the unified family court concept.
1. Confidentiality of family court communications. The subcommittee recommended that the confidentiality issue be studied further in the next FCC charge and cooperate with rules committees. Approved.
2. Child as a party. When the child is a party in a family law case, the child needs to be represented by counsel. Expanding representation of the child will have a large fiscal impact. Approved.
3. Notice to parties/ notice of related cases. Subcommittee recommends a rule should be developed regarding the coordination of notice for related cases. Approved.
4. Specific procedures for handling crossover/related cases: The subcommittee recommends that rules be created to address the 12 areas listed in the subcommittee’s summary of recommendations. The subcommittee recommends that the next FCC tackle developing these rules. Approved.
5. Alternate dispute resolution and parenting coordination. The subcommittee recommends the next FCC work on this issue, giving consideration to mediation rules to make sure the rules are more consistent. Also, to coordinate their efforts with the bar rules committees and other Supreme Court committees. Rule 12.740 should be amended. Approved.
6. Consistency of words and phrases. Florida Statutes define certain terms and phrases differently throughout the statutes. The legislature needs to address the inconsistency. A list of words was included in the notebook under tab 6. Approved.
7. Reconcile the differences between TPR proceedings under Chapters 39 and 63. The statutes have different definitions and requirements for TPR. Subcommittee recommends this area be studied and conformed. Approved.
Subcommittee 6 Report. Judge Gooding reported a set of data elements will be collected on an excel spreadsheet. Recommendation is that FCC collect this data for two years and then FCC look at this issue again in a new charge. Approved.
Mental Health Advisor. Judge Leifman’s report covers broad spectrum for the Florida Supreme Court and the narrower focus of the FCC. Judge Leifman identified three areas of concern: persons with criminal justice involvement, persons with risk of criminal justice involvement, and persons with no criminal justice involvement. He stated a new program is being developed with the goal of helping those with the most severe mental health issues get sent to an appropriate mental health facility rather than staying in the criminal justice system. Funding would be mostly federal Medicaid dollars. The plan would apply to children and adults. In the community there would be a leadership group to certify the providers and help identify persons who qualify for such services. Providers would have to meet best practice standards to qualify for federal funding. The program would take six (6) years to become fully operational. A bill will go before legislature this session to initiate the program.
Persons should be diverted to community programs instead of forensic hospitals. Florida spends a half a billion dollars to treat people for competency so they can subsequently be prosecuted criminally. Courts not just DCF should have doctors to do evaluations. Doctors do not provide adequate information to the courts for decisions.
Liefman also discussed a big disconnect between DCF and Medicaid for mental health treatment. The goal is to replace Medicaid dollars for Florida General Revenue money. Mental health findings must be extended to juvenile justice.
Opening. January 11, 2008. Subcommittee discussed the possibility of having their May meeting in a different location. The May Meeting will be shortened – one day only, May 19, 2008. OCI will send out an email survey to determine the location of the next May meeting, should state budget allow travel. Approved.
Subcommittee 2 Report on Mental Health –Rose Patterson presents subcommittee recommendations. The following discussions ensued:
· Assessment/screening of children. Subcommittee felt that all children should be assessed for trauma. Currently assessments are done for dependent children, but not delinquency. Assessments should be expanded to delinquent children. Judge Evans suggested developing a statewide protocol/screening for judges to utilize. Argued need for instruments for judges because of turnover in the rest of the system. Kent Spuhler stated that someone must push for services to be in place once the screening is completed. Otherwise, the screening will be done, but no services will follow. One big issue is making sure that the child is Medicaid eligible. The committee should get more information about Medicaid and Medicaid eligibility and explore getting expedited approval for children entering the court system.
· Judicial education. Judge Evans advocates for education and training for judges that sets forth what services are available in the circuit. A certification program should be developed to make sure judges have the expertise needed to handle the type of cases they will be hearing. Lack of knowledge contributing to large number of case being reversed. Judge Clark suggested that TPR cases that have been reversed in the last 18 months be reviewed to see what issues should be considered for training. Case managers should also be educated and trained. It is felt that judges would be more willing to sit for dependency and juvenile court if they had more training before assignment. Also that judicial education focus should be tailored to the subject area of the judges current assignment rather than broad coverage of all assignments. There was discussion about the ability to provide distant learning opportunities that fell outside the traditional judges college.
· Targeted case management through Medicaid should be used to help children in juvenile court. Judge Clark would like judges to be educated about Medicaid eligibility and what services are available.
· Competency restoration. Restoration to be done in the local community rather than large central facilities. Should provide rehabilitation services while providing services for restoration. Target expenditures towards children who have a realistic chance of having their competency restored.
All recommendations by Mental Health Subcommittee were approved.
Drug Court Task Force update. Avron Bernstein and Jennifer Grandal updated the Steering Committee on some of the work of the Supreme Court’s Task Force on Treatment-Based Drug Courts. Mr. Bernstein spoke about confidentiality issues. The Task Force has been charged with making recommendations regarding the appropriate scope of confidentiality in drug court cases. A workgroup of the Task Force has examined the issue and has recommended amending Rule of Judicial Administration 2.420. Dependency and delinquency cases are confidential; however adult criminal drug court cases are not. Adult criminal drug court files are presumptively open to the public and confidentiality of protected information must be addressed. Ms. Grandal reported the Task Force is also developing a training program/continuing education for court personnel and is getting technical assistance to help with a statewide evaluation of drug courts. The Task Force is also developing a report on the long standing sustainability of drug courts.
Subcommittee 3 Dependency Video project. Judges want wider distribution. Judge Venzer asked if the video could be translated into Spanish and Creole by a certified court interpreter. A discussion as to whether local circuits can make arrangements to get the translations ensued. Recommendation is for video to shown to parents at earliest hearing possible. Judge Goodman asked that copies of the video be sent to all juvenile judges, rather than chief judges. Approved.
Closing. Kelly Gandy announced that the 2008 Family Court Conference will be in Orlando at the JW Marriott on September 4-5th. Meeting was concluded.
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