Home » About » Newsletters » September 1999
Locking up Children Without a Hearing
By Jessica Connor
Editor and Public Education Coordinator, September 1999
In most respects, M.W. is a typical teenager. Barely 16, he likes to play basketball, keeps a sketch pad and writes poetry from time to time. He loves the Dallas Cowboys and the Denver Broncos. He also suffers from depression. To look at him, with his big brown eyes and dark, cropped hair, one would never imagine that he is the subject of a historic Florida lawsuit addressing the fundamental rights of children.
What makes M.W.'s situation different from the typical teen's is that he is now locked in a mental health facility in Broward County, Lock Towns Adolescent Care Program, part of Florida State Hospital in Pembroke Pines. For 11 months, M.W. has been involuntarily held in the program, subjected to psychotropic drugs, a rigid program of behavioral controls, physical restraints, seclusion if he acts out and limited access to family and friends. At one point, he was not provided with the medication he had been taking, Zoloft, and was involuntarily medicated with two other psychotropic drugs, Depakote and Risperadol. He was prohibited from making outgoing phone calls, including to his attorney ad litem or his family. He was forced to sit on a chair from morning until bedtime, with the exception of breaks for meals, therapy sessions, and, after two weeks' confinement, school classes at the facility. He was not allowed to write letters or draw pictures. He was prohibited from any form of self-expression, including writing poetry. In short, his confinement at Lock Towns is not treatment, but incarceration.
But M.W. did not commit any crime. He did not harm himself or another. His only "crime" was that he was a ward in the state's foster care system, and the State of Florida believes that he is their property and that due process of law is not required before state officials can place him in such a facility.
M.W. has been in the state foster care program since he was six years old. He is one of nine children with the same mother, all of whom at various times had been placed in state custody. He was removed from his family due to allegations of neglect and abuse, and he suffers from clinical depression and "conduct disorder." At times he would run away from the foster homes where he had been placed in an effort to return home to his mother. But, as his attorney is quick to point out, he does not belong in the sort of incarceration-style mental institution that he is currently housed. His psychiatric evaluation recommended a "therapeutic foster home" - with a trained parent, one or two other children in the house and on-site therapy. This evaluation was ignored by state authorities and he was carted off by police to spend the last eleven months behind bars in a mental hospital.
Ordinarily, when a child faces involuntary commitment in any facility, due process of law requires that there are basic hearings to which he or she is entitled. For example, a delinquent child facing placement in a state commitment program is entitled to a hearing in which he or she would have an attorney present and the opportunity to be heard - including proper notice, evidence, cross examination and state witnesses. In situations involving the Baker Act, a provision of the Florida Mental Health Act that protects the rights of the mentally ill, due process rights are even more stringent.
The Baker Act provides a series of due process protections that must be adhered to in order to commit any person alleged to be mentally ill. Among other things, a petition for involuntary placement must be filed, a hearing must be held within five days thereafter, a professional who executed the petition must be a witness, testimony must be under oath, and the proceedings must be recorded.
But because M.W. is a foster child in temporary state custody, the Florida Department of Children and Family Services believes that he does not have the same constitutional protections afforded other children. None of these Baker Act protections was afforded to M.W.
In a cursory hearing in September 1998, M.W. was immediately ordered to be transported by police to Lock Towns - all without taking any sworn testimony, hearing any evidence, or making findings of fact.
M.W.'s counsel ultimately filed a brief in the Florida Supreme Court in August 1999. The ACLU of Florida, in conjunction with the Children First Project, the National Association of Counsel for Children and the Advocacy Center for Persons with Disabilities, filed an amicus brief shortly thereafter. The case has been certified by the court as a "matter of great public importance."
In its amicus brief, the ACLU and others argued that the U.S. and Florida Constitutions require that dependent children in state custody facing placement in a mental health facility are entitled to due process hearings - hearings that were denied to M.W. The ACLU believes that Florida's Baker Act provides this constitutional safeguard.
"We are concerned about the significant erosion of the rights of children in recent years," said Andy Kayton, Legal Director for the ACLU of Florida. "But no concern could be more acute than when the state summarily locks up children in its custody for forced 'medical treatment' because state bureaucrats deem them to be a 'behavior problem.' Incarceration of that sort is evocative of the totalitarianism of a Soviet gulag and is totally inconsistent with the most basic guarantees of due process."
"There is a paradox here that needs to be addressed by the Florida Supreme Court," said Bernie Perlmutter, who along with Carolyn Salisbury and K. David Daniel represents M.W. for the University of Miami Children and Youth Law Clinic. "There is an innate conflict of interest in these cases because the state is burdened by a shortage of beds in therapeutic foster care, so the state is more inclined to put these children in deep-end locked psychiatric facilities."
Perlmutter and Salisbury are seeking to place M.W. where his psychologist has recommended he belongs - therapeutic foster care. Department of Children and Family Services believes he belongs in a locked facility. It is up to the judge - with proper due process of law - to decide M.W.'s fate.
The bottom line, says Perlmutter, is that children in foster care, like M.W., have the same constitutional rights as children who have natural parents. "Can we just lock kids up without their doing anything because we're afraid of what they might do?"
Salisbury agrees. "Children are not chattel," she says. "If we are teaching our children about democracy and what our system is about, we are teaching them that due process is important. This experience has taught M.W. a bad lesson about our system and our state. The justice system has let him down."
For now, M.W. remains in Lock Towns, waiting for the Florida Supreme Court to decide whether he is entitled to a proper hearing before being committed to a locked facility.
