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YOUR GUIDE T O L AW, A CCOUN T ING & F IN A N CE
Robert L. Parks : The Trial Attorney Who Makes a Difference
Also: • Attorney-Client Privilege Is Far from Dead • Millennials Shaping South Florida’s Real Estate Markets • Guarding Against the Risk of Deportation • Asset Recoveries from Fraud and Corruption Are on the Rise • Dancing in the Window: Privacy and Social Media • South Florida’s Foster Care Program Urgently Needs to Change
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This Nonsense Has Got to Stop A little over nine years ago, Barak Obama was elected President of the United States. Throughout his presidency, he was attacked, insulted and ridiculed by many in this country, especially those from the opposing party. It was an embarrassing and shameful time for our country to show such treatment to a sitting President. Even the international community was amazed at the contempt and hatred focused not only against the President but his wife and daughters as well. The President’s party, his supporters and a large part of the population demanded, rightly so, that respect be shown to our commander in chief. Today, the same unfortunate situation is occurring – this time from the opposite direction. Since Donald Trump was elected President of the United States in Novem-
ber 2016, he has been criticized, attacked, and insulted by many in this country, especially those from the opposing party. Once again, this is an embarrassing and shameful time for our country to show such treatment to a sitting President. Even the international community is amazed at the contempt and hatred focused not only against the President, but his wife and children as well. The President’s party, his supporters and a large part of the population are demanding, rightly so, that respect be shown to our commander in chief. I sincerely hope that these same words will not have to be repeated again in three or seven years, whenever we have a new President of the United States. But for that to happen, both sides need to say, “Enough is enough.” It is time to end these partisan attacks that drive people
apart. Instead, we need to start living up to the opening words in our Constitution: “We the People of the United States, in order to form a more perfect union...” We must elect candidates who put our nation first and their party second, rather than the other way around. Let that thought guide our thinking and our actions in the midyear elections this fall.
JACOB SAFDEYE
Jacob Safdeye Publisher P.D.: I do not have a Twitter account, but if I did: @DonaldTrump. Please remember that you are the world’s most prominent leader. Be an example. Stop the crude insults. Even if they achieve your intended results, they come at a great cost to civility, decorum and unity.
@HillaryClinton. You lost, be humble about it. Don’t be a sore loser. @RobertMuller. This looks like a hung jury. Guilty or innocent, give us something. @MichelleWolf. Had never heard of you but you are a very despicable, rude and immature person. @SarahSanders. You shrugged it off. Kudos to you.
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PUBLISHER JACOB SAFDEYE jacob@sflegalguide.com EDITOR IN CHIEF RICHARD WESTLUND editor@sflegalguide.com GUEST CONTRIBUTORS ANNETTE C. ESCOBAR URY FISCHER JOHN H. GENOVESE RON KRISS LESLIE J. LOTT LINDA OSBERG-BRAUN HOWARD TALENFELD SOUTH FLORIDA LEGAL GUIDE - BM Volume 2, Number 5, 2018 This is an independent supplement by South Florida Legal Guide Mailing address P.O. Box 630428, Miami, FL 33163. All rights reserved. All titles registered and may not be used without permission. Reproduction in whole or in part of any text, photograph or illustration without written permission of the publisher is strictly prohibited. The South Florida Legal Guide makes no guarantee regarding the accuracy of information presented, results reported, or safety of products or activities described herein. The publisher notifies readers that the hiring of a professional is an important decision that should not be based solely on advertisements. Before you decide, ask the professional to send you free written information about qualifications and experience. Contact: info@sflegalguide.com or call: (786) 879-7638 • www.sflegalguide.com
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ROBERT L. PARKS : The Trial Attorney Who Makes a Difference Trial attorney Robert L. Parks is committed to building a better future for his clients, their families and the entire South Florida community. Since being admitted to the Florida Bar, he has represented hundreds of victims of aviation, resort, cruise line, manufacturing and automobile negligence in the Americas and around the world. “One of the primary purposes of our legal system is to ensure there is an avenue to compensate people whose lives have been changed by those at fault,” said Parks, who has long been recognized as one of the nation’s top trial attorneys. “Many advancements in safety, such as automobile seatbelts and air bags, are a direct result of plaintiffs’ victories in personal injury and wrongful death lawsuits.” Through the years, Parks has also helped hundreds of pro bono clients who could not afford the services of an attorney, while teaching trial skills to younger lawyers. He also serves on the board of the National Judicial College, which provides training courses to state court judges around the country.” I’m proud to be part of the college, which is dedicated to upholding the high standards of our judicial system,” he said. In South Florida, Parks is an active volunteer leader in environmental causes, including serving on the board of Everglades Foundation, which is dedicated to a restoring the
health of the region’s unique “river of grass.” As he said, “We are dedicated to finding solutions to complex restoration issues and maintaining our region’s supply of drinking water without burdening taxpayers. Serving on the foundation has been a labor of love for me.”
HANDLING VARIED CASES At The Law Offices of Robert L. Parks, P.L. in Miami, Parks and his associate, Gabriel Garay, handle offshore resort litigation, aviation, premises liability, negligent security, maritime/admiralty litigation, and commercial litigation cases on a selective basis “We are doing quite a bit of work in resort litigation,” Parks said. “Many U.S. travelers fail to understand the risks involved with vacation travel, and focus only on the enjoyable aspects. That puts them at a legal disadvantage if a death or serious injury were to occur.” Resort operators, hotel companies and cruise lines do everything possible to reduce potential liability, Parks added. One of the key disclaimers in a travel contract involves the “choice of forum,” so if a serious accident occurs in The Bahamas, Mexico or Jamaica, for example, the law of that country will apply to the case. “Depending on the individual circumstances, an injured party may be able to file a lawsuit in the United States, significantly improving the odds of a favorable jury
verdict or financial settlement,” said Parks. “After all, many leading travel providers are U.S. companies or have substantial U.S. operations or assets.” Parks has been successful in bringing a number of those forum non conveniens and forum selection clause cases to U.S. courts, including a $3 million ruling in the case of Megan Sands v. Kawasaki for injuries suffered at a resort in The Bahamas. Long considered an authority on aviation matters, as well as resort, cruise line and boating cases, Parks has been involved in most major airline disasters and has handled over 200 general aviation crashes. “There has not been a major crash of a U.S. commercial carrier since 2008 – a remarkable record of safety,” he said. Referring to the recent death of a passenger on a Southwest Airlines jet, Parks said, “ Pilots have lost engines before, but the cowling fracture that broke a window and caused cabin decompression makes this case different from others.”
BECOMING A LAWYER A native of the Bahamas, Parks moved to Florida as a child and became a naturalized citizen. He enrolled at the University of Florida, planning to join the U.S. Foreign Service. “In my senior year, I found out that I couldn’t apply because I hadn’t been a citizen for 10 years,” Parks said. “I decided to go to law school at Georgetown University because I
could work my way back into the international field.” While in law school, Parks took a Saturday course in trial practice, taught by a volunteer Washington, D.C., litigator. “We covered everything from selecting a jury to preparing witnesses to closing arguments,” Parks said. “I did well in that course, and the instructor encouraged me to consider trial law as a career.” Parks took his advice, and moved back to Miami, where he could enjoy the warm climate and be close to his family. “As a young trial lawyer I was in court several times a week,” he said. “The judges wanted to move the cases through the system, and attorneys got a lot of trial work. Today, most litigation cases settle before trial, and a lawyer might only go to court a few times a year.” So, what makes a good trial lawyer? “The two keys are preparation and determination,” said Parks. “I believe that 99 percent of success is due to preparation, and the Internet, artificial intelligence and machine learning are contributing to that process.” Early in his career, Parks served as pro bono appellate advocate for an indigent man charged with sexual assault. In his appeal of Mills v. Florida, Parks argued that his client’s arrest was illegal under Florida’s outdated vagrancy statute, and was successful in getting the statute declared unconstitutional – a key victory for the state’s homeless population.
ROBERT L. PARKS In the early 1990s, Parks was involved in nationwide litigation on behalf of hemophiliacs who became infected with HIV/AIDS because of lack of screening by blood services, including brothers Ricky, Robby, and Randy Ray from Arcadia, Florida. “One of the reasons blood banks and blood mobiles are so carefully regulated these days is because of those cases,” Parks said. Parks has received numerous awards and accolades for his legal accomplishments, including being named a Distinguished Fellow by the invitation-only International Academy of Trial Lawyers in April. Last year, he was named “Plaintiff Lawyer of the Year” by the Florida Chapter of the American Board of Trial Advocates. Other honors include “Legal Legends Award”
from History Miami’s 11th Judicial Circuit Historical Society (2015); “Perry Nichols Award” from the Florida Justice Association, given annually to a Floridian who has fought with distinction for justice throughout his life (2012); and the “War Horse Award,” the highest honor by The Southern Trial Lawyers Association in 2011. Parks has also been a community leader for many decades, serving as chairman of the state’s Environmental Regulation Commission from 1978 to 1986 as the first chair of the Miami River Commission in 1998. The National Audubon Society named him “Environmentalist of the Year,” and he received the National Service to Youth Award from Boys and Girls Club of America in recognition of 30 years of devoted volunteer service.
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Attorney-Client Privilege Is Far from Dead BY JOHN H. GENOVESE
When FBI agents in New York raided Michael Cohen’s home and office on April 9 and confiscated his computer, phone and financial records, President Donald Trump was furious. He called the raid on his long-time private attorney a “break-in,” even though it had been authorized by a federal judge who found sufficient evidence to approve a warrant. In a tweet the next morning, Trump said, “Attorney-client privilege is dead.” Despite the President’s comments, the attorney-client privilege is alive and well. Regardless of the outcome of the investigation into Cohen’s activities, this long-standing legal principle continues to protect a client’s confidential conversations with an attorney under most circumstances. Legal historians believe that the concept of privilege arose in the 1500s in England, along with the right to trial by jury. While the application of this legal principle has evolved through the years, its essence has not changed. If you are facing a challenging personal, business or criminal problem, you want to be sure that what you tell your attorney is confidential. For example, you might admit your guilt in a criminal case, and talk about potentially
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extenuating circumstances. In civil litigation, you might provide your attorney with sensitive business documents that could be damaging to your company’s reputation if they become public.
WHEN DOES PRIVILEGE APPLY? When clients meet with attorneys, there is usually an expectation that the discussion will remain confidential. When individuals reasonably believe they are seeking and obtaining legal advice, those conversations are considered privileged under most circumstances. Certain documents, such as a client’s summary of events or a written response to an attorney’s question would also be privileged. Clients can decide to waive privilege by announcing that their conversations with an attorney were not related to legal matters, or that they did not hire the attorney to represent their interests. For instance, Fox political commentator Sean Hannity denied being one of Cohen’s three clients after his name was revealed in a
New York court hearing. Hannity said he was never represented by Cohen or ever retained him as an attorney, saying they only had a few conversations about real estate. Clients can give up or lose that right to privilege in other ways, as well. A client who provides confidential information to other people can no longer claim that protection. An individual who says, “I relied on the advice of counsel,” in a case, generally waives the privilege related to those issues. Privilege does not apply if the client and attorney discuss matters in a public setting in front of other people or on social media. A casual conversation on the golf course or in a social setting might not be considered privileged, either. From the attorney’s perspective, it’s important to clarify the concept of privilege early in the professional relationship. At the initial meeting an attorney might ask a prospective client not to discuss anything they would regard as confidential until they have a formal
agreement. A few clients have also been known to abuse the confidentiality privilege by revealing something to an attorney they do not intend to hire. Instead, they want to prevent the other party in the proceeding from using that attorney due to a conflict of interest.
THE ISSUE OF FRAUD From a different perspective, an attorney who is accused of fraudulent activities cannot hide behind the principle of privilege. If there is evidence that the attorney assisted a client in a fraud or engaged directly in illegal activities, those conversations are not protected and could be presented as evidence in the courtroom. Other exceptions to the principle of attorney-client privilege may include legal malpractice lawsuits and fee disputes. An attorney accused of malpractice might need to reveal the client discussions to the court in order to mount an effective defense. Disputes over legal fees may also require the parties to
JOHN H. GENOVESE present privileged information in order to resolve the issues. Finally, there is a concept called the “at-issue waiver.” An attorney who injects a factual issue into a case as evidence, may be required to disclose privileged conversations related to those facts. Otherwise, those facts could go unchallenged,
When individuals reasonably believe they are seeking and obtaining legal advice, those conversations are considered privileged under most circumstances.
which would not be fair to the opposing party. As for the Cohen case, any client communications, including those with President Trump, would not be protected by attorney-client privilege if they were related to any misconduct or criminal activities by Cohen. In that regard, this legal principle is being applied appropriately in this high-profile matter. John H. Genovese focuses his practice on commercial litigation and bankruptcy as a shareholder at Genovese Joblove & Battista, P.A. in Miami.
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Dancing in the Window: Privacy and Social Media BY LESLIE LOTT AND URY FISCHER
Social media is the #1 activity on the web, as people of all ages and backgrounds share news, photos, videos and other content with their online friends and communities. As a result, private thoughts have become public information. Facebook is the world’s most popular social medium, with a total U.S. audience of some 230 million. Facebook uses the content you provide – as well as other data it collects – across its various products (Facebook, Instagram, Messenger, Oculus and WhatsApp). While Facebook and other social media and search sites like Google are free to users, there is a great deal of value in the data that users generate. Their business models typically involve selling that information to advertisers, research firms or other companies seeking to understand their target markets. As they say in Silicon Valley, “If the product is free, YOU are the product.” Facebook CEO Mark Zuckerberg recently testified before Congress following the disclosure that London research firm Cambridge Analytica gained access to the private information of 87 million Facebook users and “friends,” and used that data to identify American voters and attempt to influence their opinions.
FACEBOOK’S NEW POLICY Responding to the Cambridge Analytica scandal,
Facebook recently updated and expanded its data policy for the first time since late 2016. There are a number of revealing details about users’ information in the new policy: •The breadth and depth of the data collected by Facebook from its users is truly expansive. Among other things, Facebook collects address book data, text message and call logs, user location (even with GPS turned off), app usage details (when, how and for how long the app is used), content viewed by the user, purchases, web sites visited, device attributes (battery level, signal strength, available storage), other apps installed on your device or PC, mouse and window activity, “nearby” devices, and more. •Much of this information is collected regardless of whether you are logged on to Facebook. This wealth of information is supposedly collected to improve the user experience. However, as the Cambridge Analytica scandal illustrates, it is also sold to third parties for profit. • Facebook collects data from users that users do not even know they possess. For example, hidden data stored in photographs, videos, and sound files tells Facebook their precise location, date, time, camera settings, and filters. They can be further processed by Facebook to extract additional information such as faces, landmarks or text. Although
Facebook does not appear to currently use facial recognition technology, it reserves the right to do so in the future. • Facebook can use information collected from users across any of its platforms (Facebook, Instagram, Messenger, WhatsApp, etc.), regardless of a user’s accounts. • Although Facebook no longer automatically shares information about your “friends” network with third parties (such as developers and advertisers), these parties can still request and obtain the information from Facebook. It is not clear when, if ever, a request for this data would be turned down. • There is no set timeframe for Facebook to remove user data, regardless of any period of inactivity by the user. Although some specific data may be automatically deleted after a “sunset period,” the majority of user data is retained indefinitely under a “case-by-case determination.” • Even if a user chooses to turn off “personalized ads,” Facebook will continue to collect and track the user’s information. A user of Facebook (or any of its platforms) does not have the ability to opt out of this form of tracking. • Users have no ability whatsoever to learn of, much less control, data Facebook collects about them from other users. In other words, no matter how careful users are about their privacy
settings in Facebook, one or two careless “friends” in their network may free Facebook to collect and share their data.
DATA PRIVACY RULES The European Parliament, which has long had more stringent rules than the United States on collecting and using personal data, adopted the General Data Protection Regulation (GDPR) in 2016. The new regulation takes effect on May 25, and requires businesses to protect the personal data and privacy of EU citizens for transactions that occur within EU member states. The GDPR also regulates the exportation of personal data outside the EU. In response, American multinationals such as Facebook and LinkedIn will be moving the responsibility for personal data away from their Irish headquarters in the European Union, to offices in the United States. By the time the GDPR takes effect, those users will be on sites governed by United States law rather than Irish law. The Federal Trade Commission has been monitoring Facebook and its privacy policies for years. On March 20, FTC Commissioner Terrell McSweeny issued the following statement: “The FTC takes the allegations that the data of millions of people were used without proper authorization very seriously. The allegations also highlight the limited rights Americans have to their data.
LESLIE LOTT Consumers need stronger protections for the digital age such as comprehensive data security and privacy laws, transparency and accountability for data brokers, and rights to and control over their data.” As social media users, we all need to read and understand the terms and conditions of use for Facebook and other sites so we can make informed decisions about what content to share and what other actions to take to protect our privacy. We should also stay informed, events are fast-moving. There is a great deal of controversy over whether
social media should be regulated by the government, or whether the tech industry can be relied on to adopt privacy measures that would be more responsive, adaptable and more technologically advanced than government might dictate. There are First Amendment concerns to balance, as well as worldwide economic, legal and political issues. The power inherent in the volume of data, and in the ways it might be used is truly unimaginable. Leslie Lott and Ury Fischer, board certified intellectual property attorneys, are partners at Lott & Fischer in Coral Gables.
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Asset Recoveries from Fraud and Corruption Are on the Rise BY ANNETTE C. ESCOBAR
A multi-billion dollar asset recovery effort, spanning more than 130 countries, has been in process for years to recover funds for the victims, with actions in Switzerland, the United Kingdom, the United States, Canada and several Latin American and Caribbean countries. It is an excellent example of how advances in laws, search tools and international teamwork now support the process of tracking down and recovering stolen assets. If you have been defrauded or obtained a judgment that you cannot seem to collect, do not lose hope. There are steps you can take to regain your funds. Stolen assets, unrecoverable judgments, and wealth stolen
from governments due to corruption on a grand scale have existed from the beginning of time. Nevertheless, it is not until the last decade or so that the legal profession has realized and implemented measures to prosecute, recover, and distribute available assets to victims. Since the Great Recession a decade ago, anti-corruption legislation has been adopted in various countries along with the development of adequate multi-jurisdictional tools. As a result, the ability to pursue these cases has increased, and is likely to continue to grow. While there are many who purport to be experts in this field, victims need to be wary of whom they employ to prosecute their claims.
Of course, as new anti-corruption laws are enacted and additional tools become available, fraudsters adapt and find other ways to defraud victims and the system itself. It is imperative for specialists in this area to attempt to stay one step ahead of them, a challenging but not impossible task. Luckily, legislatures, governments and civil parties have finally awoken to this reality and are attempting to put measures in place to protect victims and to assist in the prosecuting of cases of this nature. One example of the type of laws that must be taken into consideration in this field is the ability to obtain information to trace funds, a key issue in all fraud cases. The
owners in fraud cases continue to evolve. The interplay with new privacy legislation like the GDPR in the European Union, is a developing consideration. The bottom line is that this is a dynamic and growing area of law that presents many opportunities for recovery to those who have been victims of such crimes. That said, victims should be very careful in how they proceed lest they be re-victimized by counsel who cannot deliver a recovery.
ANNETTE C. ESCOBAR United States, United Kingdom and European jurisdictions have various legal tools that may assist in attempting to gather the type of information needed to effectively
trace defrauded funds. Similarly, new laws regarding issues like the registration of the ultimate beneficial owner of certain assets, as well as tools to uncover these
Annette C. Escobar focuses her practice on fraud, asset recovery, and international insolvency as a partner at Sequor Law, a member of ICC FraudNet, a global network of specialists.
Millennials Shaping South Florida’s Real Estate Markets BY RON KRISS
If you want to know which direction South Florida’s real estate markets are headed, take a close look at the traits and preferences of the Millennial generation. Rather than drive everywhere, they often prefer a ride-sharing service. Instead of cooking dinner, they have it delivered. They buy lots of things online, but still enjoy a trip to the mall for a social and entertainment experience – not just a shopping trip.
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As a result, walkable neighborhoods with convenient amenities like downtown Miami, South Beach, Brickell, Coconut Grove and Wynwood have become attractive residential destinations, reflecting the national and global urbanization trend. And that’s why new sports arenas, for example, are being built in downtown rather than suburban locations. Millennials’ preferences are having an impact on South Florida’s com-
mercial and residential markets, which continue to attract investment capital from U.S. and international sources for existing properties and new developments. In the past year, there has been a slowdown in investment money from Asia, Russia and the Mideast. On the other hand, foreign capital continues to pour in from Venezuela as well as other South American countries. While there are con-
tinuing concerns about overbuilding, inventory continues to be tight on both the residential and commercial side. Therefore, while there’s a consensus that our real estate market follows a cycle – and that it’s currently strong – it’s not clear when a market correction is likely to occur. Meanwhile, the pulse of real estate activity in terms of sales, development and
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RON KRISS
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Guarding Against the Risk of Deportation BY LINDA OSBERG-BRAUN
The U.S. Supreme Court recently recognized the deportation process as a grave and drastic measure often amounting to lifelong banishment and exile. While immigration law has been likened to the tax code in complexity, it still falls under the civil, not criminal, code despite its consequence on life and liberty. Recent trends reveal deportation actions are not just originating from enforcement operations, raids and targeted “pickups.” Surprisingly, many foreign nationals are placed in removal proceedings because of their own actions. Examples include: • Denied asylum applications. Individuals who apply for asylum and are denied by the asylum office are immediately placed in removal proceedings. A referral to the immigration judge is
often a one-way ticket to deportation proceedings. While the immigration judge has jurisdiction to hear the claim fresh, only the strongest and well supported claims win. Until recently, asylum applications could take years to be heard and during the long wait an applicant could gain work authorization. Now in an effort to deter strategic asylum claims, new cases filed are being streamlined for quick adjudication. This is welcome news for many, but can also be difficult for others to obtain proof and support of their claim while immigration judges are being discouraged to grant continuances. • Traveling abroad. Every time an individual travels abroad and returns to the United States, his or her immigration status is subject to scrutiny in the inspection process. This includes all visa
holders, lawful permanent residents and even, at times, United States citizens. A U.S. Customs and Border Patrol (CBP) officer has access to databases that include full immigration chronology and arrest history, along with authority to question the individual. Phones, text messages, emails and computer records are being searched, and there are limited rights to privacy and to an attorney at the border or point of entry. • Adjustment applications. Whether family, marriage or work based, applications for residency filed with U.S. Citizenship and Immigration Services (USICS) trigger background investigations, document verification and in-person interviews that can turn into interrogations. While most well-documented applications are approved, those with irregularities or prior
immigration violations will result in enforcement/ deportation action. • Citizenship. Any person who is eligible to file for naturalization should apply to ensure the protection of the laws and rights afforded by the United States. However, any lawful permanent resident with criminal, tax or child support issues must be proactive to correct those problems prior to filing. • Arrests. The time to consult with an immigration attorney is before a criminal matter is resolved, not afterwards. Gone are the days when a criminal defense attorney can tell his or her client to worry about the deportation consequences after the criminal case is resolved. Critical planning and plea strategy may save the immigration day. Every foreign national must proactively maintain and ensure compliance
LINDA OSBERG-BRAUN with the immigration laws of the United States. Many violations and mistakes can be rectified if addressed swiftly using various waivers provided by the immigration code. Even some individuals who are unlawfully residing in the United States, who entered without status or cannot rectify their prior status, may have rights and relief from
removal. Those individuals need expert representation, knowledge and preparation in order to avoid deportation consequences or prevail in the painstaking and stressful process. Linda Osberg-Braun is board certified in immigration and nationality law and a founding partner at Osberg-Braun & Ruiz Immigration in Miami.
Real Estate Activity Continues At a Fast Pace in South Florida • CONTINUED FROM PAGE 6 leasing continues at a fast pace in South Florida’s urban market. Investors are willing to pay higher prices on a per-square-foot basis for condominiums, offices and retail space in downtown properties than those in the suburbs. Lenders also like these markets, as
shown by the number of cranes in the air for new developments. Since many Millennials want to reduce their dependence on the car, new developments in these locations may be able to reduce their parking requirements, perhaps changing the footprint of a new project and freeing construction capital
for other purposes. Existing garage space may need to be repurposed. Rather than 1.5 parking spaces per bedroom, for example, a new residential project might need only one space, cutting the size of a parking garage by a third. Another alternative for developers is a public-private partnership with
the municipality, with a commitment for the lease of a certain number of parking spaces. On the retail side, shopping malls are updating their concepts and bringing in new tenants who can offer Millennials varied dining, entertainment and shopping options. With the steady growth of online
shopping, malls are focusing on experiential retailing. To take one example, Tesla put an automobile showroom in a South Florida mall, so shoppers could see and touch their vehicles — a very different approach than the traditional car dealership experience. Real estate owners, investors, lenders and developers
should pay close attention to the Millennials, as they are shaping South Florida’s real estate market of the future. Ron Kriss concentrates his practice on commercial real estate law in Stroock’s Miami office, and serves as chair of the firm’s Distressed Property Group.
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South Florida’s Foster Care Program Urgently Needs to Change BY HOWARD TALENFELD
A long series of suicides, suspicious deaths, sexual trafficking and abuse cases show the continuing failure of the State of Florida to protect children placed into foster care. Poor supervision, lack of accountability, inadequate financial resources and an insufficient supply of suitable foster homes are among the serious problems that have plagued South Florida’s privatized system. Fortunately, the state has recently called for bids to find a new foster care partner from the private sector – a change that is urgently needed in order to improve safety and services for these vulnerable children.
A HISTORY OF FAILURE Between 1985 through 2001, five grand juries and 11 special panels documented the grotesque failures that resulted in the re-abuse of foster children in the custody of the Florida Department of Children & Families (DCF) and its predecessor agency in Miami-Dade and Monroe Counties. After Rilya Wilson, a 3-year-old foster child in Miami, disappeared from her caregiver’s home in 2001 and was never found, another blue-ribbon panel urged the agency to privatize foster care. Unfortunately, DCF’s 2005 privatization of foster care with Our Kids
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of Miami-Dade/Monroe, Inc. has proven equally futile, as foster children are still physically, sexually and emotionally abused in an overcrowded system that has failed to protect them. Unlike other privatized agencies that provide direct services, Our Kids subcontracts most of its $100 million/year budget to multiple, independent case management agencies and service providers. These agencies have siphoned precious resources away from foster children to pay the salaries of multiple chief executive officers, chief operating officers, chief information officers, and general counsels. Even worse, Our Kids’ failed to implement a system of real quality assurance and accountability for its agencies. The result has been insufficient risk assessments, lack of foster homes and placements, overutilization of group care for young children, lack of mental health services, lack of safety plans to protect children from harm, high numbers of missing/runaway children, large numbers of children who are victims of sex trafficking while in foster care, and high turnover in case managers.
NEW CALLS FOR CORRECTIVE ACTION In 2011, Nubia Barahona was murdered and
her twin brother, Victor Barahona, was burned with acid and nearly killed by their adoptive father, who, along with his wife, adopted the children despite warnings to multiple agencies that the children had been abused and neglected by their foster/adoptive parents for years. Another review of the privatized system after Nubia’s death found a systemic failure of the child welfare system created by a fragmented business model with antiquated processes, procedures, and technologists conflicting rules and incentives. Our Kids was put on corrective action to become more involved in cases and increase its oversight of its case management agencies. In 2014, Our Kids was again put on corrective action to address “numerous systemic deficiencies.” A peer review again recommended that Our Kids increase its oversight, support and accountability of case management services. That same year, Our Kids assumed responsibility for recruitment, licensing, training, and support of foster homes in the Southern Region, and in 2015, took over placement responsibility for foster children in its system of care. But Our Kids continued to rely on group home and shelter placements instead of
recruiting sufficient foster homes. Meanwhile, sexual trafficking cases and fatalities of children in foster care have continued. Lauryn Martin-Everett who was 16 and had been in at least 10 placements, died by suicide on December 15, 2016 after she hung herself from a scarf in the bathroom doorway at the same Florida Keys shelter. On January 22, 2017, 14-year-old Naika Venant, who had been in 14 placements, died by suicide after hanging herself from a scarf in her foster mother’s Miami Gardens bathroom. There have been 13 child fatalities in Miami-Dade County this year so far, including 2-year-old Ethan Coley, who was scalded by hot bath water while in the care of a young sibling. His mother, who had a long history of abusing and neglecting her children, failed to seek medical attention for the injuries that took Ethan’s life. On February 20, 2018, a federal class action lawsuit was filed in the Northern District of Florida seeking to remedy these numerous deficiencies in the foster care system in the Southern Region and to prevent ongoing harm and risk of harm to seven named plaintiffs. The lawsuit claims that that the lack of appropriate therapeu-
HOWARD TALENFELD tic placements and the resulting instability has had deadly consequences for foster children in the Southern Region. The lawsuit also alleges that Our Kids has misused nearly $1 billion in federal and state taxpayer funds over the last ten years without remedying known dangers to children. Although the shift to privatization was supposed to increase protection for the state’s vulnerable children, Our Kids’ system of care has perpetuated the dysfunctionality that has existed for decades. It remains an experiment that contin-
ues to harm and fail our children. Because Our Kids’ contract will soon expire, the state’s Department of Children and Family Services recently released an invitation to negotiate for the Southern Region. Hopefully, this time there will be an agency that is accountable for the children who deserve the best possible protection from the state. Howard Talenfeld focuses his practice on children’s rights and represents abused and neglected children as managing partner at Talenfeld Law in Plantation.