By Jan Pudlow
Since public defenders already represent children charged with crimes, why not give them the job of representing abused and neglected children, too?
That was the scaled-back proposed committee substitute (SB 686) that passed out of the Senate Judiciary Committee by a 6-to-4 vote on January 23.
Just don’t make us handle dependency cases on top of delinquency cases without adequate funding was the plea from Sixth Circuit Public Defender Bob Dillinger, legislative chair of the Florida Public Defenders Association.
“Our fear is the fiscal shortcomings,” Dillinger told the News before the meeting got underway.
“We do Baker Acts; they just stuck that on us. We never got any compensation for that or any workload money. They gave us Jimmy Ryce (the law passed in 1998 that calls for involuntary civil commitment for sexually violent predators beyond their prison sentences), and they gave us one position. It’s an awesome workforce issue. If adequately funded, most people would want to do it. Our fear is that rarely happens.”
The fears articulated by Sen. Skip Campbell, D-Tamarac, were the hidden cost of hiring conflict attorneys when a child’s abuser needs a public defender in criminal court, as well as the possibility that the public defenders would get an additional $14 million and not necessarily spend it on the representation of children.
“I’m concerned with conflicts, I’m concerned with spending money not to the benefit of children, and I’m concerned that we have people solely dedicated to make sure these kids are protected,” Campbell said, as Dillinger stood at the podium.
“I’m not saying you guys wouldn’t do it. Don’t misinterpret what I’m saying. I’m saying the potential is there.”
Campbell was pushing for something closer to the original vision that sprang from an interim project of the Senate Judiciary Committee that called for creating a new Office of Public Advocacy, a central oversight agency that would consolidate current resources of the state’s 21 guardian ad litem offices, the delinquency matters currently handled by the public defenders, and provide the additional representation of children in rancourous divorce and custody matters in family court.
“If we (create an Office of Public Advocacy), we’re saying, ‘This is your sole responsibility, this is your sole duty’ — that is to make sure kids are protected in this very, very hostile environment in a courtroom where people’s rights are being determined by a judge, based on how the case is presented,” Campbell said.
“I’ve seen it. When they’ve got someone there who knows what they’re doing, people’s rights are better protected. If you don’t, they’re not.”
Dillinger responded: “My concern with another bureaucracy is that if 40 or 50 percent of our children are delinquent and dependent, you’re giving them two lawyers, instead of one. You give them two offices, and that’s what we have right now. DCF (Department of Children and Families) and DJJ (Department of Juvenile Justice) are not the most communicative bureaucracies, and we’re stuck in the middle trying to get DCF to do something, and they want DJJ to do it. DJJ wants DCF to do it. And we want to be able to litigate it and say: ‘This child needs help, and we want that child to get help. And if you’re not going to do it, we’re going to go into court and make you.’”
As for not using additional dollars as intended, Dillinger said: “I just can’t imagine that any office would sacrifice children to give somebody else a pay raise in another position in their office.”
This latest Senate Judiciary Committee’s proposal (that goes next to the Senate Children and Families Committee), is much more narrowly focused than the original concept spelled out in a 47-page report released in November. But after several senators voiced concern about creating a new bureaucracy in times of a severe budget crunch, Sen. Locke Burt, R-Ormond Beach, the chair of the committee, asked staff to narrow the focus of additional representation to dependency cases and come up with the pros
and cons of four proposals:
• Create an Office of Public Advocacy in the Justice Administrative Commission, at an estimated cost of $14.1 million. Advantages: There would be consistency of representation throughout the state, and no conflicts with representation in other types of cases. Disadvantages: There would be no direct line of supervision for the director, and it would need a state-level staff. (Campbell supported this option.)
• Leave the Guardian ad Litem program in the courts as it is currently, at an estimated cost of $13.7 million. Advantages: It would not require transferring or eliminating any employees, and there would be minimal disruption of the current system. Disadvantages: The courts do not consider this an essential function, and there is a potential conflict with the courts because often judges supervise one of the litigants in the case before the court. (Sen. Ron Silver, D-N. Miami, and Sen. Stephen Wise, R-Jacksonville, supported this option.)
• Move representation of children in dependency proceedings to the public defender offices, at an estimated cost of $12.6 million. Advantages: The representation would be placed in a legal office at the local level, and there would be a local elected official in each circuit used to dealing with the local court system. Disadvantages: The public defender may be required to conflict out on cases because it could not represent several family members in both criminal and dependency proceedings, and it would lack statewide consistency. (Senators Rudy Garcia, R-Hialeah; Durrell Peaden, R-Crestview; Jim Sebesta, R-St. Petersburg; Alex Villalobos, R-Miami; Buddy Dyer, D-Orlando; and Burt supported this option.)
• Move representation of children to the Department of Legal Affairs to be privatized, at a cost of $14 million. Advantages: Statewide consistency could be achieved through contracts from a single stage agency, under the supervision of a statewide elected official. Contracts could be terminated if deemed ineffective, and services could be cheaper. Disadvantages: Current employees providing services would be terminated, contracts may cost more, and there could be a possible conflict between the Department of Legal Affairs that currently represents DCF in Hillsborough, Manatee, and Broward Counties.
“Let me tell you that in terms of costs of each of these alternatives, there’s not much difference,” Burt said.
“The reason is the following: Our staff has estimated that for every 100 dependency cases that we provide representation, we’re going to need 2.5 case coordinators, one attorney and 7/8 of a senior secretary. We are projecting that that staff level will be required no matter where we put the representation.
“And right now, we have 7,000 (dependency) cases that are being handled. We have about 6,000 cases that are unrepresented. So the number you see is full funding to do the 7,000 cases we’re doing now, adding 44 attorneys to handle the 7,000 cases that we’re doing, and then picking up the approximately 6,000 dependency cases where we’re not representing children.”
When all was said and done, it was the Senate Judiciary Committee’s chief goal to make sure more children would receive representation than ever before that heartened 11th Circuit Chief Assistant Public Defender Carlos Martinez, who serves as chair of the representation subcommittee of The Florida Bar Commission on the Legal Needs of Children.
“The action the Senate Judiciary Committee took goes a long way to implement the most significant recommendations of the Bar’s commission,” Martinez said. “This goes a long way. And we’re very hopeful that if this follows with what the public defenders recommend — which is adequate funding, that in fact you will not get an unfunded mandate — then kids will be represented in additional hearings in which they are not currently represented.”
The Bar commission recommends representation of children in broader areas than just delinquency and dependency, though.
“We’re disappointed by that, but we’re also realistic in that this is a first step, and it’s a huge first step. Because it actually doubles the current funding that is going to be spent on representation in dependency.”
Martinez predicted the reaction of his fellow public defenders will be mixed.
“On the one hand, the major problem you’re going to have with the public defenders is that, unfortunately, once it gets down to the point of what money has to be appropriated to do this function, the fear is that it will not be appropriated. And all of a sudden, we will have not only delinquency, but we’ll also have dependency with the same amount. And that can only hurt children.”