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The Kids Aren't Alright: Every Child Should Have an Attorney in Child Welfare Proceedings in Florida


Michael J. Dale

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Michael Dale, The Kids Aren't Alright: Every Child Should Have an Attorney in Child Welfare Proceedings in Florida, 36 Nova Law Review 345 (2012). On Valentine's Day 2011, a ten-year-old girl, Nubia Barahona, was found dead in a garbage bag in the rear flatbed of the vehicle owned by her adoptive father, Jorge Barahona. Victor Barahona, Nubia's twin brother, was also found in critical condition in the truck, which was parked just off I- 95 in Palm Beach County, Florida. Nubia and Victor Barahona had entered the Florida dependency system in June 2000. At no time since entering the system, and until they were adopted, did any of the three subsequent reports confirm that either child had ever been represented by his or her own attorney. This article is a continuation of a discussion as to why, as a matter of Florida constitutional law, public policy, and professional ethics, Florida's children need independent attorneys from the inception of all dependency and termination of parental rights cases to their completion. It is based upon events which have occurred since the authors' last article on this topic in the Nova Law Review, including the Barahona case, the resolution by the American Bar Association (ABA) in August 2011 at its Annual Convention in Toronto adopting the ABA Model Act Governing the Representation of Children in Abuse, Neglect, and Dependency Proceedings (Model Act), and a series of comments, pronouncements, and policy statements by Florida State officials and advocates. This article will review the March 2011 Nubia Report: The Investigative Panel's Findings and Recommendations by the Blue Ribbon Panel, (Nubia Report), the Barahona Case Findings and Recommendations summary report of the Secretary of the DCF, and the Miami-Dade Grand Jury Report, each of which contains comments and conclusions about the Barahona case that no one person was responsible to protect the children's rights. The article will also review recent representations by the GAL Program suggesting the Program may be engaged in the unauthorized practice of law, as well as the past, present, and future financial issues concerning the operation of the Program. It will discuss recent literature from DCF, the GAL Program, the court system, and a Pro Bono Attorney Program in Broward County. The article will demonstrate the inability of each to correctly articulate its legal and ethical mandate, the result of which is confusion, duplication, and a fundamental misunderstanding of the proper role of each, and the meaning of being the attorney for the child. The article will also comment upon updated information regarding the Gabriel Myers case and will point out the similarity of the conclusions in that matter to the Barahona case. Finally, the article will conclude, based upon this additional evidence, as the authors concluded in their prior article, that children in Florida must have an independent attorney. Children cannot remain the only party in a dependency proceeding who appear pro se.

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Nova Law Review

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