MW v. Davis

• Decision Date: 04 May 2000
• Docket Number: No. SC95443.,SC95443.
• Citation: 756 So.2d 90
• Parties: M.W., a child, Petitioner, v. Arlonia DAVIS, Director of Adolescent Programs, Lock Towns Community Mental Health Center, Inc., and Florida Department of Children and Family Services, Respondents.
• Court: Florida Supreme Court

756 So.2d 90

M.W., a child, Petitioner, v. Arlonia DAVIS, Director of Adolescent Programs, Lock Towns Community Mental Health Center, Inc., and Florida Department of Children and Family Services, Respondents.

No. SC95443.

Supreme Court of Florida.

May 4, 2000.

Carolyn S. Salisbury, Bernard P. Perlmutter and K. David Daniel of the University of Miami School of Law, Children & Youth Law Clinic, Coral Gables, Florida; and Annemarie H. Block, Attorney for Mother of Petitioner, M.W., Miami, Florida, for Petitioner.

Linda Ann Wells and Charles M. Auslander of the Department of Children & Families; and Harold E. Patricoff and Michael V. Herskowitz of Shutts & Bowen LLP, Miami, Florida, for Respondents.

Nancy Schleifer, Miami, Florida, for The Guardian ad Litem Program, Amicus Curiae.

Michelle Hankey, James Walsh, and John Walsh of the Legal Aid Society of Palm Beach County, Inc., West Palm Beach, Florida, for The Juvenile Advocacy Project Of The Legal Aid Society Of Palm Beach County, Inc., Amicus Curiae.

Christina A. Zawisza and John M. Ratliff of Children First Project, Nova Southeastern University, Fort Lauderdale, Florida; and Barbara W. Green of ACLU of Florida, Coral Gables, Florida, for Children's

First Project, Shepard Broad Law Center, Nova Southeastern University; National Association of Counsel for Children; The Advocacy Center Persons with Disabilities, Inc.; and American Civil Liberties Union Foundation of Florida, Inc., Amici Curiae.

PARIENTE, J.

We have for review M.W. v. Davis, 722 So.2d 966 (Fla. 4th DCA 1999), a decision of the Fourth District Court of Appeal that certified the following question to be one of great public importance:

IS A HEARING WHICH COMPLIES WITH THE REQUIREMENTS OF SECTIONS 39.407(4) AND 394.467(1), FLORIDA STATUTES, NECESSARY WHEN A COURT ORDERS THAT A CHILD BE PLACED IN A RESIDENTIAL FACILITY FOR MENTAL HEALTH TREATMENT, WHERE THE CHILD HAS BEEN COMMITTED TO THE LEGAL CUSTODY OF THE DEPARTMENT OF CHILDREN AND FAMILY SERVICES, AND THE DEPARTMENT IS SEEKING RESIDENTIAL TREATMENT?

M.W. v. Davis, 729 So.2d 481 (Fla. 4th DCA 1999). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

For the reasons expressed in this opinion, we conclude that neither the statutory framework of Chapter 39 nor the Constitution requires an evidentiary hearing that complies with the substantive and procedural requirements of section 394.467(1), Florida Statutes (1997), part of the Baker Act,¹ prior to a court ordering that a dependent child in the temporary legal custody of the Department of Children and Families ("the Department") be placed in a residential mental health facility. Accordingly, we answer the certified question in the negative.

FACTS

M.W., the petitioner in this case, is a sixteen-year-old male adolescent from Dade County. M.W. was removed from his mother's custody at the age of six due to allegations of abuse and neglect. Although M.W. was adjudicated dependent and placed in the temporary legal custody of the Department, his mother's parental rights have not been terminated.² The case plan goal for M.W. has been reunification with his eight siblings and his mother. During the ten years M.W. has been in the protective custody of the State of Florida, M.W. has been placed in several different settings, including foster homes, group homes and his mother's home. When he was placed by the Department in a custodial setting outside of his mother's home, M.W. frequently ran away to return to his mother's home. He has also been hospitalized for evaluation and treatment of mental health problems. At all times material to the proceedings in this case, M.W. has had the benefit of court-appointed counsel.³

The events leading up to the issue addressed by the certified question arose from disagreement among health care professionals over the appropriate placement for M.W. In May of 1998, as a result of behavioral and psychological problems, M.W., who was fifteen at the time, was admitted to the psychiatric unit at Palmetto General Hospital for examination and treatment.⁴ M.W. remained hospitalized at Palmetto General from May 14, 1998, to June 16, 1998. The two mental health professionals who evaluated M.W. at Palmetto General disagreed as to the type of placement that was appropriate for M.W. Dr. Gerald Olivera, a psychiatrist, recommended "a residential placement emphasizing self-responsibility, self-identity and independent living skills," in addition to medication and therapy with a psychiatrist. In contrast, Dr. Cecilia Deidan, a psychologist, recommended that M.W. be placed in a foster care home with an "accessible and available" foster mother and that M.W. be given therapy and medication.⁵

The Department then sought to place M.W. in a residential facility. M.W. contested this placement and, through his attorney, filed an emergency motion for an independent expert examination to determine whether residential psychiatric treatment was needed. The dependency court held a hearing on this motion on June 18, 1998. At this hearing, the Department agreed with M.W.'s request that the court schedule an evidentiary hearing to determine the appropriate placement for M.W. The dependency court judge granted the motion for the independent expert examination⁶ but deferred ruling on the request for an evidentiary hearing until after she received the results of the independent expert's evaluation.⁷

At this same hearing, M.W.'s counsel also advised the dependency court that M.W. had been released from Palmetto General and placed in foster care but that he had not received his prescribed psychotropic medications for two days. At a hearing held eleven days later on June 29, 1998, M.W.'s counsel advised the court that M.W. was still not receiving his medications and as a result had destabilized. M.W. thus requested that he be placed once again in the psychiatric unit at Palmetto General in order to receive his medications and stabilize. In accordance with M.W.'s request, the court ordered that M.W. be returned to Palmetto General.

While M.W. was in Palmetto General, Dr. Stanley Doyne, a clinical psychologist at Jackson Memorial Medical Center of the University of Miami, conducted a comprehensive assessment of M.W. pursuant to the court's order for an independent examination. In his written report dated July 20, 1998, Dr. Doyne recommended that M.W. be given family and individual therapy, psychotropic medications, and that he be placed in therapeutic foster care. Dr. Olivera, who had previously evaluated M.W., conducted an additional evaluation at Palmetto General on July 17, 1998, and recommended that M.W. be placed into therapeutic foster care with one other child and a strong, caring African-American foster mother. Dr. Olivera also recommended that M.W. receive therapy and that he be given a specific plan to reach his goal of reunification with his mother.

On July 30, 1998, M.W. filed an emergency motion to compel the Department to pick up M.W. from Palmetto General and put him in an appropriate placement. According to M.W.'s allegations, Palmetto General attempted to discharge him on July 13, 1998, but the Department had no other placements available.⁸

Apparently, M.W.'s hospitalization dragged on because of the lack of available placements. Then, on August 10, 1998, an incident occurred in which M.W. became physically and verbally aggressive towards one of his peers at Palmetto General. As a result of this incident, Dr. Olivera changed his most recent recommendation from therapeutic foster care placement to a recommendation that it was essential to place M.W. in a residential psychiatric treatment facility. In Dr. Olivera's opinion, M.W. needed a highly structured environment. Dr. Olivera also expressed the opinion that M.W. constituted a danger to himself and to others due to his inability to appropriately express his anger and regain control.

On August 12, 1998, a hearing was held on M.W.'s previously filed motion to compel the Department to find him an appropriate placement. The dependency court judge ordered that M.W. be removed from Palmetto General and placed in a specialized therapeutic foster respite home, pending a search by the Department for a more appropriate home and a comprehensive assessment of his needs.

Dr. Barton L. Jones, a psychologist selected by the Department, then conducted a comprehensive psychological assessment and recommended placement in a "supportive, but locked residential environment wherein [M.W.] will be able to develop relationships with others and can participate in family therapy" and receive psychological and psychiatric treatment. Dr. Jones stated that M.W. "did not appear to be at risk for suicidal attempts or self-injurious behaviors but he is at risk for running away and the dangers associated with this."

M.W.'s case came back before the dependency court judge at a status hearing on September 23, 1998.⁹ By this time, the Family Services Planning Team and the Case Review Committee¹⁰ had met and both recommended residential placement for M.W.¹¹ Due to the conflicting recommendations from the psychologists and psychiatrists that had evaluated M.W., both the Department and M.W.'s attorney once again asked the court to schedule an evidentiary hearing to resolve the contested issue of M.W.'s placement. The Department advocated placement in a residential facility, while M.W. requested placement in a therapeutic foster care home. The dependency judge recognized the need for an evidentiary hearing, but explained that she had no time available for a hearing until November 9, 1998. Despite the protestations of M.W.'s counsel that this date was six weeks in the future and no commitment should occur without an evidentiary hearing first, the judge ordered that M.W. be placed in Lock Towns Adolescent Care Program, a locked mental health treatment facility in Broward County, "temporarily, until we have an evidentiary hearing."¹² The judge expressed...