Saturday, August 31, 2013
Oregon Teen Calls Police for Help with ‘Massive’ Spider
Oregon Teen Calls Police for Help with ‘Massive’ Spider: When an Oregon teen in a wheelchair was faced with a “massive” venomous spider and no one was home to come to her rescue, she felt she had no choice but to call the cops. Makenna Sewell, 17, of Forest Grove, Ore., was going to...
Wednesday, August 28, 2013
Thursday, August 22, 2013
Sunday, August 18, 2013
Carin Manders Constantine
https://www.facebook.com/pages/The-Law-Offices-of-Carin-M-Constantine/46665583462?ref=hl
Wednesday, August 7, 2013
Monday, August 5, 2013
Saturday, August 3, 2013
DEPARTMENT OF CHILDREN AND FAMILIES HOLDS A HEARING WITHOUT THE FATHER BEING GIVEN NOTICE OR BEING PRESENT. FLORIDA APPELLATE COURT CALLS IT 'SHOCKING'.
DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
July Term 2010
DEPARTMENT OF CHILDREN AND FAMILIES,
Appellant,
v.
D.B.D., the father,
Appellee.
No. 4D09-4862
[August 25, 2010]
GROSS, C.J.
The Florida Department of Children and Families (“DCF”) appeals an
order dismissing an ex parte injunction entered against a father of minor
children pursuant to section 39.504, Florida Statutes (2009). At a
hearing required by due process, DCF failed to justify the continuation of
the injunction, so we affirm the order of the circuit court.
The mother and the father are both attorneys. The mother is an
attorney for DCF in Dade County. The mother and the father had an
ongoing, contentious divorce case in Broward County. In the divorce
case, the family court judge ruled against the mother on some of the
allegations she made against the father. For example, in March, 2009,
the judge denied the mother an injunction she had sought on behalf of
her children.
On August 21, 2009, the mother filed a pro se emergency motion to
suspend visitation. Attached to the motion was an affidavit from a
psychologist. The mother never called this motion up for hearing before
the family court judge.
On September 18, 2009, DCF filed a petition for a section 39.504
injunction in Broward County. Subsection 39.504(1), Florida Statutes
(2009), authorizes the department to seek an injunction to “prevent any
act of child abuse” at “any time after a protective investigation has been
initiated pursuant to part III” of Chapter 39. The statute contemplates
that the injunction remedy will be used in conjunction with a
dependency proceeding in order to protect children from acts of abuse. - 2 -
See id. The DCF petition contained many of the same allegations that
the mother had included in her August 21 emergency motion to suspend
visitation; also, the petition refers to the same psychologist’s affidavit
that the mother had used to support her August 21 motion.
On the same day the petition was filed, a hearing was held before
Judge Carlos Rebollo, who was not the family court judge familiar with
the hostile dynamics of this family. The father was given two hours
telephone notice of the hearing. Because he was in the Florida Keys, he
asked for permission to appear by telephone. DCF informed the court of
the father’s request. DCF objected to the father’s appearance by
telephone, so Judge Rebollo did not allow it. He instructed his bailiff to
“sound the halls” for the father, and, when no one responded, the judge
proceeded with the hearing. In addition to the mother, two lawyers and
three DCF representatives were present. None of these professionals
advised Judge Rebollo of the pending proceedings in family court and he
did not ask. The short hearing consisted primarily of the judge reading
an affidavit and a brief proffer of facts by a DCF attorney.1 One DCF
representative was concerned that the father had sent him a letter
threatening to sue him.
The DCF attorney convinced the judge to enter an injunction that
remained in effect until further order of the court, without holding any
further hearing. Section 39.504(2) provides that if a judge issues “an
immediate injunction,” “the court must hold a hearing on the next day of
judicial business to dissolve the injunction or to continue or modify it.”
The DCF attorney called the court’s attention to this section, but
suggested that it did not apply. The attorney provided the judge with a
preprinted form injunction for his signature.
1Section 39.504 does not specify what type of evidence may be introduced in
an ex parte hearing to obtain an “immediate injunction.” However, other
provisions of Florida law preclude the use of anything but affidavits or a verified
pleading at ex parte temporary injunction hearings, unless there has been at
least reasonable notice to the adverse party. For example, Florida Rule of Civil
Procedure 1.610(a)(2) provides that “[n]o evidence other than the affidavit or
verified pleading shall be used to support the application for a temporary
injunction unless the adverse party appears at the hearing or has received
reasonable notice of the hearing.” At an ex parte hearing to obtain a domestic
violence temporary injunction, “no evidence other than verified pleadings or
affidavits shall be used as evidence, unless the respondent appears at the
hearing or has received reasonable notice of the hearing.” § 741.30(5)(b), Fla.
Stat. (2009). The father in this case did not receive reasonable notice.- 3 -
At the end of the September 18 hearing, Judge Rebollo entered an
injunction that took effect immediately, so the mother could leave court
with it in hand. The injunction did not schedule a hearing “the next day
of judicial business.” Among other things, the injunction ordered the
father to have no direct or indirect contact with his children and
prevented him from going within 500 feet of the children’s current
residence and school. Even though Judge Rebollo had never seen or
heard from the father, the injunction also ordered the father to undergo
two evaluations—for substance abuse and by a psychologist.
To anyone familiar with the concept of due process, the abbreviated
September 18 “hearing,” consuming but eight pages of transcript, is
shocking. Three attorneys were present—Ali Vazquez on behalf of DCF,
Lee Seidlin for the Guardian Ad Litem program, and the mother. None of
the attorneys made Judge Rebollo aware of the ongoing proceedings in
family court. None of the attorneys mentioned the mother’s August 21
emergency motion. None of the attorneys brought up the mother’s
previous attempt to secure an injunction on behalf of the children, which
was denied. DCF’s pre-printed, standard form for a petition for a section
39.504 injunction provides an area to describe “any other paternity
action, child support enforcement action, or dependency case that is
either going on now or that happened in the past.” There is no fill-in-theblank for an ongoing family court proceeding. The only reference in the
petition to the divorce proceeding is a statement on page 5 that “[t]he
mother and father are divorced.” Even though Judge Rebollo imposed
drastic conditions in the injunction—barring a father from his children
and requiring that he submit to drug and psychological evaluations—no
one at the hearing was concerned that the father have any input into the
propriety of the injunction. A primary focus of DCF’s attorney at the
hearing was how to avoid further scrutiny of the injunction at a time
when the person enjoined could have a meaningful opportunity to be
heard.2
2We note that Florida Rule of Professional Conduct 4-3.3(c) provides:
(c) Ex Parte Proceedings. In an ex parte proceeding a lawyer
shall inform the tribunal of all material facts known to the lawyer
that will enable the tribunal to make an informed decision,
whether or not the facts are adverse.
Had the lawyers involved advised Judge Rebollo of the ongoing proceedings in
the family court, he might well have consulted with the family court judge
before signing the injunction.
Subscribe to:
Posts (Atom)
