1. Juan is charged by Petition with burglary of a dwelling. The case eventually proceeded to an adjudicatory hearing. As the hearing was about to commence, Juan’s attorney invoked the rule of sequestration. The State objected. The judge ruled that the rule of sequestration can be invoked. The judge is:
- correct because it would be patently unfair to allow witnesses to hear each other’s testimony.
- correct because prior to the examination of any witness the court may, and on the request of any party in an adjudicatory hearing shall, exclude all other witnesses.
- incorrect if the witnesses had given sworn statements because there is no danger of them being influenced by each other.
- incorrect if the witness testifying at the time was providing non-material testimony.
THE ANSWER IS B. Prior to the examination of any witness the court may, and on the request of any party in an adjudicatory hearing shall, exclude all other witnesses. The court may cause witnesses to be kept separate and to be prevented from communicating with each other until all are examined. See Fla. R. Juv. P. 8.100(d) and F.S. 985.35(2).
2. Regarding the rights of grandparents, who are involved in dependency proceedings, which of the following statements is INCORRECT?
- Visitation rights granted to a grandparent by a court order shall terminate when child is returned to the physical custody of the parents.
- Visitation must be supervised if the grandparent has a prior criminal record.
- The grandparent is entitled to reasonable visitation, but visitation may be limited if there was a prior allegation of abuse.
- Visitation by grandparents may be limited if parent establishes that visitation interferes with her ability to complete conditions of the case plan.
THE ANSWER IS B. There is no specific requirement for supervision if a grandparent has a criminal conviction. See Fla. Stat. §39.509 Grandparents rights. Notwithstanding any other provision of law, a maternal or paternal grandparent as well as a step grandparent is entitled to reasonable visitation with his or her grandchild who has been adjudicated a dependent child and taken from the physical custody of the parent unless the court finds that such visitation is not in the best interest of the child or that such visitation would interfere with the goals of the case plan. Reasonable visitation may be unsupervised and, where appropriate and feasible, may be frequent and continuing.
Any order for visitation or other contact must conform to the provisions of s. 39.0139.
(4) When the child has been returned to the physical custody of his or her parent, the visitation rights granted pursuant to this section shall terminate.
(5) The termination of parental rights does not affect the rights of grandparents unless the court finds that such visitation is not in the best interest of the child or that such visitation would interfere with the goals of permanency planning for the child.
(6) In determining whether grandparental visitation is not in the child’s best interest, consideration may be given to the following:
(c) A report of abuse, abandonment, or neglect under ss. 415.101-415.113 or this chapter and the outcome of the investigation concerning such report.
3. Marylin, 17, is issued a Notice to Appear for Petit Theft. She came to Arraignment alone, without a parent or guardian. When her case was called, Marylin told the judge she wanted to plead guilty, “just to get it over with.” The judge asked a public defender to speak with Marylin privately, and the attorney spoke with Marylin at length about her right to counsel, the possible consequences of waiving counsel, and all of the legal options she has in the case. Marylin insisted she wanted to plead guilty and didn’t need an attorney. The judge accepted her plea, withheld adjudication, and placed her on probation. The judge’s decision to accept Marylin’s plea was:
- proper, because the lawyer had a meaningful opportunity to confer with Marylin about her right to counsel and other factors that would assist in making the decision to waive counsel.
- proper, because Marylin announced her intention to waive counsel and plead guilty.
- improper, because Marylin’s parent or guardian was not present.
- improper, because Marylin’s waiver of counsel was not in writing.
THE ANSWER IS D. Fla. R. Juv. P. 8.165(a). The answer is not “A” or “B” because the waiver is improper. The answer is not “C” because the written waiver may be verified by an adult other than a parent or guardian, including an attorney assigned by the court.
Fla. R. Juv. P. 8.165(b)(3).
4. Dandria, a pregnant 16-year-old, has filed a proceeding under the “Parental Notice of Abortion Act” seeking a judicial waiver of the requirement for notice to the parent prior to the abortion. Which of the following statements is INCORRECT?
- The trial court must rule within three calendar days of the date the petition is filed.
- The trial court must provide for a written transcript of all proceedings.
- If the trial court does not timely rule, Dandria may immediately petition the chief judge of the circuit for a hearing.
- Only Dandria has the right to appeal an order authorizing a termination of pregnancy without notice.
THE ANSWER IS A. The trial court has three business days to issue a ruling. § 390.0114(4)(b), Fla. Stat.
5. A motion raising competency to proceed that was filed by Defense Counsel or an Assistant State Attorney must include:
- the names of the doctors who will be appointed by the court to conduct the evaluation of the child.
- the last known address of the child.
- copies of the Petition of Delinquency and arrest affidavit.
- a recitation of observations and facts that formed the basis of the motion.
THE ANSWER IS D. Fla. R. Juv. P.8.095(a)(1)(A) and 8.095(a)(1)(B) lists the requirements when either the state or defense files a motion raising competency. Answers “A”, “B”, and “C” are not required to be included in the motion.
6. Which of the following is INCORRECT regarding the provision of childcare/early education to child welfare involved children under the Rilya Wilson Act?
- The Rilya Wilson Act recognizes that early education can ameliorate the negative consequences of abuse, abandonment and neglect.
- Children who are enrolled in a licensed childcare or early education provider are required to attend 5 days a week unless exempt by court order.
- The Florida Administrative Code requires out-of-home caregivers to choose childcare in accordance with a specific order of preference
- The Florida Administrative Code gives no guidance to out-of-home caregivers in the selection of a childcare provider.
THE ANSWER IS D. The Florida Admin. Code 65C-13.030 Standards for Licensed Out- of-Home Caregivers.2 d. explicitly sets an order of preference for selection of childcare. The remaining answers are correct per Fla. Stat. 39.604(3).
7. Frank is charged with Aggravated Assault. He scores 9 points and is on home detention. At his arraignment, Frank’s mother told the court that Frank isn’t complying with the conditions of home detention. The court told Frank that he had better watch his step or there may be an Order to Show Cause. The court then passed the case to the following week. The following week, a properly executed Order to Show Cause was served on Frank for indirect contempt of court. Under oath, Frank’s mother told the court that “Frank is doing his own thing and not taking home detention seriously.” The court set an Order to Show Cause hearing for the following afternoon and over defense objection remanded Tommy into secure detention based on his mother’s sworn testimony. Was the court’s action correct?
- Yes, because Frank is charged with a violent felony.
- No, because the court failed to provide clear and convincing reasons in writing that Frank would fail to appear for the hearing.
- Yes, because Frank’s mother’s testimony established probable cause that he violated the court’s order.
- No, because Frank only scores for home detention.
THE ANSWER IS B. Fla. R. Juv. P. 8.150 (c) (4.) only allows the court to detain the child before a contempt hearing if the court provides clear and convincing reasons in writing demonstrating the court’s belief that the child will fail to appear in response to the order to show cause.
8. According to the American Bar Association Standards of Practice for Attorneys who Represent Parents in Abuse and Neglect Cases, which of the following is NOT an accurate recitation of the basic obligations of a parent’s attorney?
- Advocate for the client’s goals and empower the client to direct the representation and make informed decisions based on thorough counsel.
- Aggressively advocate for regular visitation in a family-friendly setting.
- Understand and protect the parent’s rights to information and decision making while the child is in foster care.
- Obtain the child welfare agency case plan and review it with the parent to ensure that the parent understands its provisions.
THE ANSWER IS D. The 2006 ABA Standards of Practice include items a. 7, b. 27, and c. 3. Answer D does not specify the obligation under standard 26 to “Engage in case planning and advocate for appropriate social services using a multidisciplinary approach to representation when available.”
9. If a child files a “Demand for Speedy Trial,” the child has a right to an adjudicatory hearing:
- within 21 days after being taken into custody.
- within 30 days after being taken into custody.
- within 60 days after being taken into custody.
- within 90 days after being taken into custody.
THE ANSWER IS C. See Fla. R. Juv. P. 8.090(g) [If the child files a Demand for Speedy Trial, the child shall have a right to a trial within 60 days.]
10. You are a board certified Juvenile Law attorney and have been appointed, as the Attorney for the Child in a dependency case, to represent Jerry, an 8-year- old boy who is in the fourth grade. Jerry is enrolled in regular classes and makes good grades. He was removed from his mother approximately 11 months ago and is currently residing in a foster home. In preparation for the Judicial Review Hearing, Jerry told you that he wants you to ask the Judge to let him go home with his mother. You just received a copy of the Social Study Report and the GAL Report and both recommend moving forward with termination of parental rights because the mother has made little progress towards completing her case plan and she recently tested positive for methamphetamines. After the last Judicial Review hearing, when Jerry learned that he was not able to return to his mother he destroyed his room and ran away for three days. Considering your ethical duties, which of the following is NOT an appropriate way to prepare Jerry for the next Judicial Review hearing?
- You should explain to Jerry what you learned in the Social Study Report and the GAL Report and discuss how the information in the reports could impact the judge’s decision regarding a request to return to his mother.
- You should tell Jerry that you cannot, in good faith, request that he return to his mother because his mother is not making good choices and returning to her is not an option.
- You should delay communicating the information about the mother’s lack of progress to Jerry if you believe that Jerry will react negatively and arrange to relay the information at a time a place where you can minimize the impact.
- You should assure Jerry that you will make the request, but explain the likelihood of the Judge granting the request.
THE ANSWER IS B. Under Florida Rules of Professional Conduct Rule 4-1.2 Objectives and Scope of Representation, the attorney must abide by the client’s decisions regarding objectives of representation and under Rule 4-1.14 Client under a Disability, attorneys are required to maintain a normal client-lawyer relationship with clients who are minors. Thus, it would be inappropriate to tell Jerry that you cannot relay his expressed desires to the Judge even if you don’t believe the option is in his best interest. A and D are appropriate responses in that under Florida Rules of Professional Conduct Rule 4-1.4 Communication and ABA Standards for Lawyers who Represent Children in Abuse and Neglect Cases D-2, the attorney should explain to the client, in a developmentally appropriate manner, what is expected to happen before, during and after each hearing. C is an appropriate response because under the comments of Rule 4-1.4 Communication a lawyer may be justified in delaying transmission of information when the client would be likely to react imprudently to an immediate communication.
YOUR ANSWER MUST INCLUDE A DETAILED ANALYSIS OF YOUR KNOWLEDGE OF THE STATUTES RELATED TO JUVENILE LAW, RELEVANT CASE LAW AND THE RULES REGULATING THE FLORIDA BAR. YOU WILL BE GRADED ON YOUR ANALYSIS OF THE LEGAL AND ETHICAL ISSUES RAISED IN THIS FACT PATTERN AND YOUR ABILITY TO REACH A REASONED CONCLUSION.
(The citation of specific authority is not required; however, you must demonstrate knowledge of and an ability to apply the appropriate legal concepts arising from relevant statutory and case law.)
Jack is 16 years old. Last year, an abuse report was made by a teacher who saw bruises on Jack’s face and neck. After a DCF investigation, Jack’s mother Mona, consented to an adjudication of dependency based on excessive corporal punishment and alcohol abuse. The dependency disposition required Jack to remain in foster care while Mona worked on the case plan and prohibited Mona from having overnight visits with Jack, but did permit unlimited daytime unsupervised contact between Mona and Jack.
More than nine months have passed, and Mona has not yet addressed her substance abuse issues as required by the case plan. DCF intends to file a petition to terminate Mona’s rights to Jack prior to the next dependency judicial review hearing, which will be conducted in three weeks. A caseworker, Carl, and a GAL volunteer, Vanda, were assigned to the case. Mona is represented by court-appointed counsel. DCF is represented by a Children’s Legal Services attorney.
Last Thursday, Jack was arrested at 11:00 p.m. for stealing a bike. Jack was transported to the Juvenile Assessment Center. He was properly scored for home detention on the DRAI based on prior offenses, and DJJ called Jack’s case worker at 1:00 a.m. to advise that Jack would be released. Jack’s group home would not allow him to return and DCF did not have an available alternative placement for Jack, so he was held overnight and brought to a detention hearing in delinquency court on Friday. Vanda attended the detention hearing with a GAL attorney, and Jack was appointed a PD. Jack’s lawyer argued that Jack should be released on home detention. The delinquency judge asked the GAL attorney for an update on the dependency case. The GAL attorney advised that it appeared that the case was moving towards TPR because Mona was not in compliance with her case plan, and that Jack was not allowed to return to the group home due to behavior problems. Vanda added that they currently did not have a placement for Jack and asked that he be held in secure detention until a placement could be identified, stating she had safety concerns because Jack regularly runs away to his mother’s house. The SA requested secure detention. The delinquency judge placed Jack on home detention in the custody of DCF and ordered that Jack must be in the company of a DCF-approved adult at all times unless he is in school.
After the detention hearing, Jack’s PD met with him in the back of the courtroom. The PD gave Jack her phone number and told him to call her any time. After meeting with Jack, the PD spoke to Vanda. Vanda said that Jack’s behavior has been going downhill, and that Mona has been seen hanging out with “Duff,” a known drug dealer. Vanda told the PD that Jack needs to be straightened out, and that he needs a residential placement. Vanda and the PD exchanged contact information and made plans to speak again on Tuesday. DCF located a group home 50 miles away that would accept Jack, and he was transported to the group home on Friday afternoon.
When the PD got to work on Monday, she had a voicemail from Jack stating: “You people are crazy! There’s no way I’m staying here. This place is a dump, and these kids are really bad – one guy pulled a knife on a 12-year-old. Duff said I can stay with him. I know what the judge said, but I can’t stay here another minute. Duff’s number is 407-555-2268 if you need to reach me.”
The PD also received a message from Vanda which said: “Jack is on runaway status from the group home. One of the workers said that Jack told you where he went. Please call me immediately.”
The SA filed an affidavit for violation of home detention and asked the judge to issue a pick-up order. The SA called law enforcement and DCF, suggesting that Jack is probably with his mother. The SA also contacted Mona to ask if she knew where Jack was.
The delinquency court judge sent an email to the SA and PD, asking for information about Jack’s whereabouts.
The dependency court judge scheduled an emergency review hearing on Jack’s status. The GAL Attorney emailed the judge to request that the PD be required to testify at the review hearing.
- Discuss the substantive delinquency issues raised by these facts.
- Discuss the ethical issues with regard to any party.
Essay Model Answer
SECURE PLACEMENT IN DEPARTMENT OF JUVENILE JUSTICE FACILITY
In this case, a legal issue of concern is the placement of Jack in a secure detention facility because DCF could not locate a placement for him. Fla. Stat. §985. 24(d) prohibits the placement of a child alleged to have committed a delinquent act in a secure facility because an appropriate facility could not be located. It was determined after completing the detention risk assessment instrument that Jack scored for home detention. Therefore, Jack should have been released to DCF instead of being held in secure detention overnight. Since Jack has been adjudicated dependent, DCF has the responsibility of providing shelter for him and the fact that the group home will not allow Jack to return does not relieve them of the responsibility of picking him up from the detention center.
At the detention hearing, the request for placement in secure detention by the GAL attorney and the SA is a violation of law. There was no legal basis to hold Jack, considering he did not score for detention. Case law is clear that a child who does not score 12 or more points should not be held in secure detention. The SA has a duty to show candor towards the court. Rule 4-3-3 of the Rules Regulating the Florida Bar says a lawyer shall not knowingly make a false statement of fact or law to a tribunal. If there were no aggravating factors that would increase the score to 12 points, the SA should not asked the judge to hold Jack in secure detention. Holding Jack in secure detention would be illegal. Therefore, the SA should have advised the court that placing Jack on home detention was the only option available under the circumstances.
DUTY TO MAINTAIN CONFIDENCES BETWEEN LAWYER AND CLIENT
The PD in this case has a duty to maintain confidences between the client and the attorney. Rule 4-1.6(e) of the Rules Regulating the Florida Bar requires a lawyer to act competently to safeguard information relating to the representation of a client against unauthorized access by third parties. Having a confidential client conversation in a public place is in violation of attorney-client privilege, and the PD would be in violation of her duty to ensure that the information that Jack revealed to her was not overheard by a third party. If a third party overhead the information that Jack provided to the lawyer, the information would no longer be privileged and could potentially be used against Jack if the third party is called to testify to what was overheard. Therefore, it is the responsibility of the PD to take the necessary precautions when speaking with Jack and the PD certainly should consider the fact that there is no reasonable expectation of privacy in a holding cell.
SHARING CONFIDENTIAL INFORMATION WITH PARTIES
If the PD shares information with the GAL volunteer without Jack’s consent this is a violation of the rule that governs confidentiality. The communications between Vanda and the PD could potentially violate Rule 4-1.6 of the Rules Regulating the Florida Bar which states, a lawyer must not reveal information relating to the representation of a client, except in specific circumstances, unless the client gives informed consent. The PD would be only be allowed to disclose information if the PD reasonably believes revealing the information is necessary to (1) to prevent a client from committing a crime; or (2) to prevent a death or substantial bodily harm to another. In this case, Vanda has heard the PD has information related to Jack’s whereabouts and may want the attorney to share that information. Nothing in this case suggests that Jack is going to commit a crime or cause death or substantial bodily harm to another. The PD needs to take precaution when speaking with Vanda. Vanda may be attempting to do what is in the best interest of Jack, but the PD must have consent to disclose or share information with Vanda. However, the PD may speak with Vanda to learn information from Vanda. It is not a violation of the ethical rules, and actually supports the attorney’s responsibility to provide diligent and zealous advocacy for the client, to reach out to all potential witnesses and thoroughly investigate the circumstances surrounding the case.
CONTACTING A REPRESENTED PARTY
The SA is in violation of Rule 4-4.2(a) of the Rules Regulating the Florida Bar by contacting Mona to inquire about Jack’s whereabouts, because Mona’s knowledge of Jack’s location and Mona’s contact with Jack are directly at issue in her dependency case. A lawyer may not communicate about the subject of the representation with a person the lawyer knows to be represented. Mona is represented by court appointed counsel in the dependency case so the SA must contact Mona’s attorney to obtain permission to speak with her. Even though, the SA is concerned primarily with bringing Jack to delinquency court to deal with the violation of home detention, Jack’s whereabouts is an issue in the dependency matter. DCF is currently seeking to terminate Mona’s parental rights for failure to comply with the case plan. A condition in the case plan states that Mona is not allowed to have overnight visits with Jack. Any statements made by Mona to the prosecutor regarding her potential knowledge of Jack’s whereabouts could be used against her in the TPR proceeding, either as direct evidence or as impeachment evidence. Thus, the contact that the SA had with Mona about Jack’s whereabouts could have a direct impact on what happens to Mona during the termination of parental rights hearing. As such, the SA violated the ethical rules by contacting Mona directly, instead of contacting her lawyer as required by the rules.
EXPARTE COMMUNICATIONS WITH THE JUDGE
The GAL Attorney is in violation of Rule 4-3.5(b) (2) of the Rules Regulating the Florida Bar which prohibits communication with the Judge regarding the merits of a case unless it is in writing and opposing counsel is aware of the communication. The GAL Attorney’s email to the Judge to request that the Judge require the PD to testify at the review hearing is an ethical violation The GAL Attorney engaged in ex parte communication by sending the email to the judge. If the GAL Attorney believes there is a need to contact the Judge prior to this emergency hearing the GAL Attorney must copy the other parties in the email.
ATTORNEY TESTIFYING IN COURT
If the PD is called to testify in court as to Jack’s whereabouts, the PD should assert the attorney-client privilege and refuse to testify to Jack’s whereabouts. Section 90.502, Florida Statutes, states “client has a privilege to refuse to disclose and to prevent any other person from disclosing the contents of the confidential communications when such other persons learned of the communications because they were made in the rendition of legal services to the client.” In this case, Jack contacted the PD so for the purpose of making the PD aware of his location if the PD needed to speak with Jack. Jack did not tell the PD that he should not disclose this information, but the PD should argue that Jack shared the information about staying with Duff so the PD could contact him if about issues related to the representation. If the information is deemed confidential, Rule 4-1.6 of the Rules Regulating the Florida Bar prohibits disclosure by the PD, unless Jack gives consent.
ATTORNEY ROLE AS COUNSELOR
Rule 4-2.1 of the Rules Regulating the Florida Bar says the lawyer shall exercise independent professional judgment and render candid advice. In this case, the PD has an obligation to advise and explain the consequences of the violation of home detention to Jack. The SA has asked the Judge to issue a pick-up order. If the Judge signs an order to have Jack arrested for violating home detention, the PD should contact Jack to make him aware of the order and explain the options and consequences of his actions. Jack may not want to hear that he will have to return to the group home, but the PD should inform him that he will have to stay there, unless DCF finds another placement for him. Rule 4-2.1 of the Rules Regulating the Florida Bar does not require a lawyer to only tell the client what they want to hear. An essential part of the duty is to provide candid advice that assists the client in making an informed decision. Even though the PD is not a best interest lawyer, she can talk with Jack about what she thinks would be in his best interest. However, after she has provided advice, she must abide by Jack’s decision and attempt to further his objectives as required in Rule 4-1.2(a).