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Renewing the call for lawyers for foster children

Senior Editor Regular News

Renewing the call for lawyers for foster children

Senior Editor

To fully appreciate the impetus for creating the Regis Little Subcommittee of the Legal Needs of Children Committee of The Florida Bar, you have to know the story about its namesake.

Rosemarie Farrell A foster child who had recently “aged out of the system,” Regis Little was 18 when he was found stabbed to death in a parking lot near International Drive in Orange County.

It was a tragic ending to his short, tragic life.

When Regis was only a baby, he was taken from his mother after she was arrested for shoplifting and found to be using drugs. The state placed him with a family friend who molested him. Before he was old enough to go to kindergarten, his mother had died of cancer and his father had disappeared.

For a few years, he lived with an aunt, until he became too much for her to handle. From 2000-08, Regis bounced around from nine group homes and mental-health facilities.

Bi-polar, hyperactive, and with an IQ of 65, he was taking at least five psychotropic medications. Yet again, he was molested in a group home.

His education was patchy, with records often taking months to catch up with his new school. As a high school junior, he still could not read or write. There was no stable, consistent person advocating for him.

When he turned 18, he “ran for the hills,” said Jacksonville solo practitioner Jodi Seitlin, who co-chairs the Regis Little Subcommittee with Rosemarie Farrell, of Orlando’s Children’s Legal Services of the Department of Children and Families.

“He ran as fast as he could from any kind of services, any kind of intervention as soon as he turned 18. There is a reason for that. Obviously, we need to continue to improve the system that we all support and rely on for the welfare of children who don’t have capable parents in this state. But that system needs to do a much better job than is currently being done,” Seitlin told the full LNNC when it met June 21 at the Bar’s Annual Convention.

Getting the system to do a better job was the goal in 2010, when Family Services of Metro Orlando formed a task force after Regis’ death, and came up with recommendations, including better recordkeeping and better advocacy for foster youth with disabilities who age out of the system.

The Bar’s Legal Needs of Children Committee got involved in 2011, forming the Regis Little Subcommittee, first chaired by Barry law Professor Gerry Glynn, who helped write a scholarly article: “Confidentiality-based Barriers to Advocacy and Survival: A White Paper for Empowering Foster Youth, In Memory of Regis Little.”

It called for action steps to create a web-based, information-sharing system for use by everyone responsible for the child’s well-being. And the paper summed up the 2002 findings of the original Legal Needs of Children Commission that “assessed the dueling interests of privacy — the right to be let alone — and the need to share information for the effective and efficient provision of services to ‘whole children.’”

After Regis’ death, there was another system-shaking, tragic death of a foster child in Florida: Nubia Barahona. On Valentine’s Day 2011, the 10-year-old was discovered lifeless, curled in the fetal position in the back of her adoptive father’s truck parked on the side of Interstate 95 in West Palm Beach. The medical examiner said her death was caused by blunt-force trauma. A grand jury indictment accused Jorge and Carmen Barahona with repeatedly locking Nubia and her twin brother in a bathroom with their hands and feet bound, and torturing them with a shoe, broom, and whip. Only three weeks on the job, new DCF Secretary David Wilkins called the tragedy “a total systemic failure of the child welfare system created by a fragmented business model with antiquated processes, procedures, and technologies, and conflicting rules and incentives.”

An investigative panel about Nubia’s death wrote in its report: “In Florida, we talk about ‘a system.’ We would be much closer to a genuine system if the operating principle in the case of every child in the child welfare system was this: We will insist that every piece of relevant information to a child’s life and future is available in one, constantly updated place where everyone responsible for that child’s well-being could see that information, discuss it, assess it.”

The Regis Little Subcommittee has taken that insistence as its clarion call. And its members continue to learn from foster care survivors, too.

They listened to members of Florida Youth Shine tell their stories of being foster children, where “there did not seem to be any person within Florida’s child welfare system who knew who they were and who was responsible for them,” according to the subcommittee’s minutes. While prejudicial information was readily available, the former foster children said, important facts about their healthcare and education that could have helped them, as they moved around from foster home to foster home, was deemed protected and confidential.

At its June meeting, Seitlin brought the whole committee up to date.

“What we’ve been working on is how to get all of the players to meet their obligations to make this information accurate and timely concerning children in out-of-home care. We’ve had a lot of stumbling blocks and hiccups, and a lot of frustration, and round and round and round. And we keep coming back to the concept of representation,” Seitlin said.

“Because even though we all like to say we are child advocates, no one has the individual legal responsibility to follow through and follow forward on behalf of that child’s legal needs, unless that child has the benefit of an attorney representing their legal interests.”

Getting legal representation for children was the focus when Howard Talenfeld chaired the Legal Needs of Children Committee in 2009, and Jesse Diner was Bar president. The Board of Governors approved it as a legislative position, but bills died at the Legislature, largely due to fears it would take limited funding away from the Guardian ad Litem Program.

On Talenfeld’s motion at the June meeting, the committee voted unanimously “to move that the Board of Governors revalidate the prior position of the committee.”

The “patchwork system” of giving some foster children lawyers and leaving others without representation was documented in a 2012 study funded by The Florida Bar Foundation and published by Florida’s Children First and the University of Florida Levin College of Law Center on Children and Families.

Seitlin distributed the report that concluded: “Despite the imprecision of the data available, there can be no doubt that Florida’s patchwork system of representation results in extreme inequality of access to counsel. The ability of a child to obtain counsel should not rest on the accident of geography.”

Seitlin also pointed to a May 2012 Bar Journal article written by Sarah J. Campbell and Robin Rosenberg, submitted on behalf of the Public Interest Law Section, that expressed this bottom line: “Until such time as Florida provides all children in state care with meaningful and effective representation, the adults who know and care about [foster] children. . . must be empowered to seek the appointment of counsel. It’s time to remove the gags from those caring adults and break the silence.”

Seitlin proposed that they focus on some of the most vulnerable children targeted to need legal advocates, and when they have representation, the important information-sharing will have a better chance of happening.

“The will and priority are really all that’s necessary,” Farrell added. “Judges can appoint attorneys. I would suggest that this body should look at what those cases are. What are the appropriate cases? And focus on those and say we are going to do it. And yes, we want a broader piece of legislation. But let’s not all hold our breaths. This isn’t going to happen in the immediate future. And in the meantime, we could be taking some steps within existing law and getting people on board, just by demonstrating to them the importance of giving reliable information that’s helpful regarding individual children.”

Eleventh Circuit Judge Sandy Karlan, the chair of the original Legal Needs of Children Commission, sprang to her feet to share what she called her “long institutional memory.”

She told how children can be unfairly branded with labels — like “troublemaker” or “defiant” — because a caseworker didn’t like the child or a child disagreed with a guardian ad litem’s recommendation.

“The psychobabble that comes back that I see in dependency cases is really shameful!” Karlan said.

“As was recommended, the child has a right to review information being shared about that child. Of course, that’s not going to be a valuable right without having a person assist them, like a lawyer. It could be a guardian, but you still need an adult,” Karlan said.

“When we went through all of the issues of the children’s needs, one of the judges on the committee said a long time ago: ‘Sounds like if you just had representation for the child — the only party not being represented — we would be able to address all of these issues.’ So be careful when you start to break children down into categories. Well, we can’t get representation for children, so we’ll get it for these children. Be careful that you’re not throwing away the rest of the kids,” Karlan said.

“Give judges something to work with. If there was language that said a child has a right to be represented by an attorney. Doesn’t say who has to pay. Doesn’t say the state will appoint. Just that it’s there, that they have a right to be represented. That would address the big picture.”