Chapter 39 Injunctions. David Silverstein Assistant Attorney General Klarimarie Baez-Nazario CPI Supervisor, Hillsborough County Sheriff s Office

Transcription

1 Chapter 39 Injunctions David Silverstein Assistant Attorney General Klarimarie Baez-Nazario CPI Supervisor, Hillsborough County Sheriff s Office 1

2 DOES ANYONE USE CHAPTER 39 INJUNCTIONS? 2

3 Injunction Requirement F.S (9)(a)(6)a In 2014, the Florida legislature made it mandatory for CPIs to seek Chapter 39 Injunctions in certain circumstances. 3

4 Injunction Requirement F.S (9)(a)(6) If present or impending danger is identified, CPI must implement a safety plan or take the child into custody. 4

5 Injunction Requirement F.S (9)(a)(6)a CPI shall implement separate safety plans for the perpetrator of domestic violence and the parent who is the victim of domestic violence. 5 5

6 Injunction Requirement F.S (9)(a)(6)a If the perpetrator of domestic violence is not the parent, guardian, or legal custodian, the CPI shall seek a Chapter 39 Injunction. 6 6

7 Injunction Requirement F.S (9)(a) Purpose of the injunction is to implement a safety plan for the perpetrator and to impose any other conditions to protect the child. 7 7

8 Injunction Requirement F.S (9)(a) Injunction process gives the dependency court jurisdiction over the perpetrator. Typically, the dependency court has jurisdiction only over the parents and the child. 8 8

9 QUESTION Does the CPI have to seek a Chapter 39 Injunction if the perpetrator is the father to one child in the home, but is not father to another child in the home? 9 9

10 ANSWER Yes. The statutes require the CPI to seek a Chapter 39 Injunction when the perpetrator is not the father of a child in the home

11 QUESTION If the perpetrator is the biological father of the child but has not established paternity, does the CPI have to seek a Chapter 39 Injunction? 11

12 ANSWER Yes. Chapter 39 provides that the legal father is a parent. Therefore, a biological father who has not established paternity is not a parent under Chapter

13 QUESTION If the perpetrator is the legal parent to some but not all children in the home, should the CPI seek to protect the perpetrator s children? 13

14 ANSWER It is best practice to seek an injunction to protect all of the children in the home, even the perpetrator s children, because the violation of the injunction can result in immediate arrest of the perpetrator. 14

15 ANSWER However, note that there should be a dependency action regarding these children to ensure that the perpetrator has an opportunity to reunify. Injunctions can be in effect until the child turns 18. Injunctions can be modified, but there may not be a CPI or case manager to provide recommendations to the court regarding the modification. 15

16 QUESTION Does a CPI have to seek a Chapter 39 Injunction if the child is removed from the home or if a dependency petition has been filed with the child remaining in the home? 16

17 ANSWER Yes. The statutes do not relieve the CPI of the responsibility to seek a Chapter 39 Injunction when the child is removed or if a dependency petition is filed. 17

18 QUESTION Instead of seeking a Chapter 39 Injunction, can the CPI shelter the child and then ask the court to order that the perpetrator have no contact with the child? 18

19 ANSWER No. The statutes require that the CPI seek a Chapter 39 Injunction even if the child is removed from the home. 19

20 ANSWER The dependency court in a dependency petition proceeding does not have jurisdiction over a perpetrator who is not a legal parent of a child. Therefore, the court cannot hold a perpetrator, who is not a legal parent, in contempt for violation of a no contract order. 20

21 ANSWER The purpose of the injunction proceeding is to give the court jurisdiction over the perpetrator. 21

22 QUESTION Does a CPI need to seek a Chapter 39 Injunction if the victim obtains an injunction against the perpetrator in Family Court? What if the Family Court injunction prevents contact between the perpetrator and the children? 22

23 ANSWER Yes. The CPI must still seek a Chapter 39 Injunction since the statutes do not relieve the CPI of the responsibility to obtain an injunction when the victim has obtained an injunction. The purpose of a Chapter 39 Injunction is to protect the child, not the adult DV victim. 23

24 ANSWER The victim can enforce the Family Court injunction, but the Department is not a party to the Family Court case. The Department can enforce a Chapter 39 Injunction. 24

25 QUESTION Does the CPI still need to seek an injunction if the perpetrator is not willing to abide by a safety plan, is incarcerated, or is unable to be located? 25

26 ANSWER Yes. The statutes do not relieve the CPI of the requirement to seek a Chapter 39 Injunction when the perpetrator is not willing to abide by a safety plan, is incarcerated, or is unable to be located. 26

27 Injunction Process F.S (1) At any time after a protective investigation has been initiated pursuant to Chapter 39, the CPI may request that the court issue an injunction to prevent any act of child abuse

28 Injunction Process F.S (1) Reasonable cause exists for an injunction if there is evidence of child abuse or if there is a reasonable likelihood of such abuse occurring based on a recent overt act or failure to act

29 QUESTION Does a dependency action need to be filed before the CPI is able to seek a Chapter 39 Injunction or after an injunction petition is filed? 29 29

30 ANSWER No. The CPI can seek a Chapter 39 Injunction at any time after a protective investigation has been initiated. Therefore, no dependency action is required

31 QUESTION How recent must the domestic violence incident be? 31 31

32 ANSWER The statutes do not provide a definition of the word, recent. However, it is critical to obtain the Chapter 39 Injunction as soon as possible after the domestic violence incident

33 ANSWER This presents issues when the CPI determines that there is impending danger late in the investigation

34 Petition for Injunction F.S (2) Person seeking the injunction must file a verified (sworn/notarized) petition or a petition with an affidavit. Petition must include specific actions by alleged offender from which the child must be protected. Petition must include the remedies sought. 34

35 Petition for Injunction Challenges Should the Chapter 39 Injunction be filed in the same court file of an existing dependency case? 35

36 Petition for Injunction Challenges The Clerk and Judges in Hillsborough County directed that the Chapter 39 Injunction be a separate case with a separate dependency case number. The Juvenile Court directed that Chapter 39 Injunctions be filed with the Family DV Clerk because that division was familiar with the injunction process. 36

37 Petition for Injunction Challenges How should Chapter 39 Injunction cases be assigned to a particular judge? 37

38 Petition for Injunction Challenges The case was assigned to the division judge who has a collateral pending dependency case or by zip code of the child s residence. However, the dependency judges directed that the DV Family Court judges handle the hearing on the final injunction. 38

39 Hearing/Temporary Injunction F.S (2) Upon filing of the injunction the court shall set a hearing at the earliest possible time. The court may issue a temporary injunction with the verified petition and any affidavits as evidence. The temporary injunction pending the hearing is effective for up to 15 days. 39

40 Hearing/Temporary Injunction Challenges At first, the injunction petitions were scheduled on the daily shelter docket. The CPI provided notice to the perpetrator to attend the hearing. Then, the judges agreed to enter ex parte temporary injunctions at the same time as shelter hearings and then schedule final injunction hearings with notice to the perpetrator with the DV judges. 40

41 Service F.S (3) Petition and any temporary injunction must be personally served on the alleged offender. A sheriff or law enforcement officer in the county where the alleged offender resides must serve the alleged offender with the petition and the temporary injunction if entered. 41

42 Extension of Temporary Injunction F.S (2) and (3) The court may extend the temporary injunction for good cause shown including service of process. The court may grant a continuance of the hearing at any time for good cause shown and the temporary injunction shall be continued during the continuance. 42

43 QUESTION How long can the court continue the ex parte temporary injunction before having a hearing? 43

44 ANSWER There is no time limit for continuing the ex parte temporary injunction pending a hearing. 44

45 QUESTION Does the CPI need to conduct a diligent search to locate the perpetrator? 45

46 ANSWER The statutes and rules of court do not require that the CPI conduct a diligent search. However, the CPI should try to locate the perpetrator for service of the petition and any temporary injunction. 46

47 Service Challenges There were many cases where the perpetrator was not able to be located for service. CPI would make a request to locate. Pending the search, the CLS attorney would ask the court to enter another temporary injunction for 15 days. 47

48 Service Challenges There have been many cases that have multiple temporary injunctions due to service difficulties. Some judges dismissed temporary injunctions after there were several unsuccessful attempts to serve the perpetrator. 48

49 Service Challenges The Sheriff s Civil Process Division would attempt service, but required a new temporary injunction if the 15 days passed on the temporary injunction because the time period of the injunction lapsed. 49

50 QUESTION Is the perpetrator allowed to ask for discovery? 50

51 ANSWER Chapter 39 Injunction statute does not mention that perpetrators in Chapter 39 Injunction proceedings are allowed to obtain discovery. However, F.S (2)(e) provides that the information from the child abuse report shall be released to the parents of the alleged child victim and the alleged perpetrator. 51

52 Injunction Hearing F.S (3) After the hearing, the court may enter a final injunction. 52

53 QUESTION Do you need to present witness testimony at the hearing and do the Rules of Evidence apply? 53

54 ANSWER Uncertain. There is nothing the statutes or rules of court that specify whether witness testimony is required or that the Rules of Evidence apply. 54

55 ANSWER However, Chapter 39 typically specifies when witness testimony is not required and when the Rules of Evidence do not apply. Therefore, judges have required witness testimony and applied the Rules of Evidence. 55

56 QUESTION Is the perpetrator entitled to a courtappointed attorney for the injunction hearing? 56

57 ANSWER No. The Chapter 39 Injunction statute does not mention the appointment of counsel for the perpetrator who is not related to the child. Fla.R.Juv.P. Rule provides that at each stage of the dependency proceeding the court shall appoint counsel to indigent parents or others who are so entitled as provided by law. 57

58 Hearings Challenges It is difficult to serve witnesses with subpoenas if the injunction hearing is in 15 days. Sometimes the hearings are scheduled in less than 15 days. 58

59 Hearings Challenges The child may be the only witness and may have to testify. If there is a collateral dependency proceeding, the child may have to testify two times: in the injunction proceeding and in the dependency proceeding. However, judges were willing to continue hearings to consider child testimony by close-circuit or child victim hearsay motions. 59

60 Hearings Challenges The judges require the CPI to be present as the petitioner and will dismiss the temporary injunction if the CPI does not appear at the hearing. CPIs were spending a lot of time in court waiting for hearings. There is an agreement with CLS for CPIs to be on standby to come to court if the perpetrator was served, and there will be a final hearing. 60

61 Hearings Challenges Some judges dismissed the temporary injunction if the domestic violence incident was not recent. 61

62 Injunction Order F.S (4) Refrain from further abuse or acts of DV. Participate in specialized treatment program. Comply with the safety plan. 62

63 Injunction Order F.S (4) Limit contact/communication with the child victim or other children in the home. Refrain from contacting child at home, school, work. Have limited supervised contact with child. 63

64 Injunction Order F.S (4) Vacate the family home. Have exclusive use and possession of the dwelling. Exclude the offender from residence of caregiver. 64

65 Injunction Order F.S (4) Pay temporary support for the child or other family members. Pay costs of medical, psychiatric, psychological treatment for the child due to the abuse and similar costs for family members. 65

66 Length of Injunction Order Final injunction is in effect until modified or dissolved by the court. Motion to modify injunction must be provided to all parties including the department. Court loses jurisdiction when child turns

67 Enforcement of Injunction F.S (6) Any person who fails to comply with an injunction commits a first degree misdemeanor and can be arrested. 67

68 Enforcement Challenges Since the new injunction requirement was initiated, perpetrators have not been arrested for violation of the injunction. Who is responsible for monitoring the compliance with the injunction when the CPI investigation is open? How about when the CPI case is closed? 68

69 Data FY Injunction Petitions: 95 Injunction Hearings: 206 Final Injunctions Granted: 65 Injunctions Denied: 8 Final Injunction Hearings Continued: 117 Final Injunction Hearings Continued for Lack of Service on Respondent: 68 69