LAST WILL & TESTAMENT. A Will leaves your property to whoever you want when you die. If you don’t have a Will, Florida law will decide who gets your property; and it might not go to who you want if you die without a Will. A Will can also simplify the process of probate after your death, appointing a personal representative, which is what Florida calls an executor, and make sure that the executor does not have to post a bond. A Will can also give the executor more powers than they would have to deal with the property under Florida law.

LIVING WILL. A Living Will says what happens if you are dying. Usually, a Living Will sets out your wishes about such things as artificially provided food and water, intensive care, artificial respiration, and whether you want medication to help with pain, even if that medicine hastens your death. A Living Will also says whether or not you want to be resuscitated- brought back- if your heart should stop.

HEALTH CARE SURROGACY, sometimes called a Health Care Proxy or Health Care Power of Attorney. A Health Care Surrogacy lets someone else make medical decisions for you if you are unable to make those medical decisions yourself. This is broader than a Living Will, because you might be unable to make medical decisions, but not necessarily be dying. Most people name their spouse as Health Care Surrogate and then name one of their children as an alternate.

DURABLE POWER OF ATTORNEY. A Durable Power of Attorney allows someone else to run your business affairs if you are unable to. Many people think that they don’t need a Power of Attorney because their spouse is named as co-owner of bank accounts and is on the deed to the house. But a spouse cannot sign contracts, deeds, tax returns and other documents for you just because they are named as a co-owner on an account. Most people name their spouse on the power of attorney, and name one of their children as an alternate.

PRE-NEED GUARDIANSHIP DESIGNATION. If you become unable to care for yourself, and a court case is brought to protect you, you can name the person who would be responsible for looking after you. If you do not choose a Guardian ahead of time, the court would appoint someone.

You should not feel trapped or continue to be at the mercy and whims of your husband regarding finances and other important issues such as time sharing and child support. Your husband’s lack of consideration for you and your children creates instability in your home, especially in light of the fact that you have special needs children who require lifestyle structure. The type of disruptive lifestyle you are currently experiencing is not in your children’s best interests.

It sounds as though you are considering filing an action for defamation of your character against the nurse practitioner. In order to determine any legal cause of action you may have, a lawyer’s investigation would involve a review of the pleadings filed in your case including any transcripts from testimony taken in your Dependency court hearings.

It seems as though there may be alot of “he said, she said” involved because of statements made by your children which were then reported in court by the nurse practitioner. All of those factors could make it difficult for you to actually prove that you have a valid cause of action for defamation of character, slander or the like. For example, the nurse practitioner could argue that he or she heard the children make both statements but only testified as to one of the statements in court.

The nurse practitioner may have some immunity acting as a healthcare provider for your children. Additionally, he or she could argue that those statements reflect, to the best of their recollection, what they heard from the child.

Healthcare professionals are typically reluctant to testify against one another so it may be difficult for you to prove that the statements made in court were questioned by the colleague.

If you wish to pursue a defamation action. you should contact a Florida lawyer specializing in that area of the law where you can find out whether or not you have meritorious grounds for legal action against the nurse practitioner.

DEFAMATION:
To establish a cause of action for defamation, you must show:
(1) That the nurse practitioner published a false statement about the you;
(2) To a third party; and
(3) That the falsity of the statement caused injury to you. See Razner v. Wellington Regional Med. Ctr., Inc., 837 So. 2d 437 (Fla. 4th DCA 2002).
Only statements that are false rise to the level of defamation and statements of pure opinion are not actionable. Florida Med. Ctr., Inc. v. New York Post Co., Inc., 568 So. 2d 454 (Fla. 4th DCA 1990).

It is best to err on the side of caution because of the potential for accusations or adjudications of child abuse from “popping a child in the mouth” or the like. To you- “lightly popping” your child on the mouth may seem innocuous, but it may be considered serious to the court or a Child Protective Investigator.

One parent I represented administered corporal punishment to his 14 year old minor child after the child had acted out sexually toward another child and had also broken and entered into a neighbor’s home and had stolen certain items. My client’s position was that he, “tore up his son’s butt because he needed to understand that he can’t do those things”. My client left bruises on the child which was considered abuse under both Chapter 39 and the applicable criminal statutes for aggravated child abuse/child battery.

Chapter 39 of the Florida statutes defines child abuse as follows:
(2) “Abuse” means any willful act or threatened act that results in any physical, mental, or sexual abuse, injury, or harm that causes or is likely to cause the child’s physical, mental, or emotional health to be significantly impaired. Abuse of a child includes acts or omissions. Corporal discipline of a child by a parent or legal custodian for disciplinary purposes does not in itself constitute abuse when it does not result in harm to the child.

As you can imagine from reviewing the above statute- in conjunction with any evidence/testimony presented in court- courts not only have broad discretion but also a measure of angst while determining whether or not child abuse has occurred in a given situation.

Parental corporal punishment may be considered criminal in nature, as mentioned in the above example, so it is best to consider alternative disciplinary methods to corporal punishment.

Noteworthy is State v. McDonald, 785 So. 2d 640 (Florida 2nd DCA 2001).

“We recognize that drawing a line between prohibited child abuse and permissible corporal punishment, administered by parents who believe in this form of discipline, is not an easy task. In a state where the common law of crime has been supplanted in large part by statutory law, see State v. Adams, 683 So. 2d 517 (Fla. 2d DCA 1996), section 775.01, Florida Statutes (1999), this difficult task is principally a legislative function. We confess, however, that the present statutory scheme gives us pause in two respects. First, the offense in section 827.03(1) prohibits an intentional act that could reasonably be expected to result in physical or mental injury to a child. Relying exclusively on this language, when the charged conduct involves excessive discipline by a parent, we have difficulty distinguishing between the misdemeanor described in section 827.04 and this third-degree felony.

Second, we are concerned that an offense of contributing to the dependency of a minor, at least if the offense applies to parents, may adversely affect civil dependency proceedings. Under chapter 39, it is often useful to obtain a rapid admission of dependency from the parents and gain their cooperation in order for the dependency proceeding to serve as a method to give immediate help to the family. If the parental act that justifies dependency is also a criminal act, the consequences of such an admission may be more serious.

The Department of Children and Families may be compelled to litigate more dependency cases, may find the parents less cooperative, and may be forced to defer assistance to the families if these cases become quasi- criminal proceedings. This policy concern, however, is a matter for the legislature.

Whether the corporal punishment of the child in this case was excessive such that it became the crime of child abuse is a question of fact, not capable of resolution at this time.

From the information you have given, it sounds as though there is currently a pending DCF Child Abuse investigation and not yet an actual Dependency case. If the investigation results in an actual Dependency case, you as a parent are entitled to receive notice of all hearings and you would also be served all pleadings and reports pertaining to your children. If the investigation closes with insufficient evidence to open a Dependency case, you should be entitled to a report of the child protective investigator’s findings.

Sorry you are going through this process, but if your children are, in fact, the victims of abuse, abandonment and/or neglect, it is good that there is a pending investigation although the process itself can be intensely distressing.

I recommend you seek competent legal advice from a family attorney who practices in the area of Chapter 39 Dependency law to discuss your specific rights and responsibilities during a DCF child abuse investigation and potential dependency case.

ANSWER: From the information you have given, it seems that the major problem you have is that you have no legal authority regarding your great niece- legal authority such as the Guardianship of a minor. Due to your lack of any tangible/written supportive legal documentation, you have no standing in court. I recommend you chronologically journal everything that has occurred since your great niece came to live with you and get the names, contact information for all persons you have been dealing with and create a timeline of important events in your case. That way, when you consult with a lawyer you can present the information in a clear & concise format which will allow him/her to devise a legal strategy to assist you. The legal standard in child-related cases is the “Best interests of the child”. That is the standard by which the court will operate when making a determination as to where your great niece will live permanently. Find an experienced and reputable family law lawyer who has also practiced in the area of dependency law to represent you.

Chapter 39.01(2) of the Florida Statutes defines child abuse as follows: “Abuse” means any willful act or threatened act that results in any physical, mental, or sexual abuse, injury, or harm that causes or is likely to cause the child’s physical, mental, or emotional health to be significantly impaired. Abuse of a child includes acts or omissions. Corporal discipline of a child by a parent or legal custodian for disciplinary purposes does not in itself constitute abuse when it does not result in harm to the child.”

If you suspect that a child is being abused, out of an abundance of caution, you should report the specific facts you are aware of to the Florida child abuse hotline which will probably trigger an investigation. There are statutory sanctions for false reports to the Florida child abuse hotline so if you decide to submit a report, be certain that the report is being submitted in good faith.

Reporting of child abuse or suspicion of child abuse, child abandonment or child neglect is mandatory in Florida. Florida Statutes Chapter 39.201 provides that “Any person who knows, or has reasonable cause to suspect, that a child is abused, abandoned, or neglected by a parent, legal custodian, caregiver, or other person responsible for the child’s welfare, as defined in this chapter, or that a child is in need of supervision and care and has no parent, legal custodian, or responsible adult relative immediately known and available to provide supervision and care shall report such knowledge or suspicion to the department in the manner prescribed in subsection (2).
(b) Any person who knows, or who has reasonable cause to suspect, that a child is abused by an adult other than a parent, legal custodian, caregiver, or other person responsible for the child’s welfare, as defined in this chapter, shall report such knowledge or suspicion to the department in the manner prescribed in subsection (2).”

You may wish to call the child abuse hotline and hypothetically convey the child abuse, abandonment or abuse information you have become aware of to you to find out whether the DCF criterion for abuse is met based on that particular set of alleged or observed facts. You should find out whether or not this type of conduct on the part of a parent or child custodian rises to the level of reportable child abuse in Florida. You can give  hypothetical information to the abuse hotline representative before giving the names of the parties involved so that the parties will remain anonymous while you determine whether or not to submit their names. You can also remain anonymous yourself although you will be requested to give your own name when making a child abuse report.

The U.S. Supreme Court has rejected an interpretation of speech without limits.
Because the First Amendment has such strong language, we begin with the presumption that speech is protected. Over the years, the courts have decided that a few other public interests — for example, national security, justice or personal safety — override freedom of speech. There are no simple rules for determining when speech should be limited, but there are some general tests that help.

Clear and Present Danger
Will this act of speech create a dangerous situation? The First Amendment does not protect statements that are uttered to provoke violence or incite illegal action.

Justice Holmes, speaking for the unanimous Supreme Court, stated, “The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.”

Fighting Words
Was something said face-to-face that would incite immediate violence?

In Chaplinsky v. New Hampshire, the Supreme Court stated that the “English language has a number of words and expressions which by general consent [are] ‘fighting words’ when said without a disarming smile. … Such words, as ordinary men know, are likely to cause a fight.” The court determined that the New Hampshire statute in question “did no more than prohibit the face-to-face words plainly likely to cause a breach of the peace by the addressee, words whose speaking constitute a breach of the peace by the speaker — including ‘classical fighting words,’ words in current use less ‘classical’ but equally likely to cause violence, and other disorderly words, including profanity, obscenity and threats.” Jurisdictions may write statutes to punish verbal acts if the statutes are “carefully drawn so as not unduly to impair liberty of expression.”

Libel and Slander
Was the statement false, or put in a context that makes true statements misleading? You do not have a constitutional right to tell lies that damage or defame the reputation of a person or organization.

Obscenity
In June 1973 in Miller v. California, the Supreme Court held in a 5-to-4 decision that obscene materials do not enjoy First Amendment protection. In Miller v. California (1973), the court refined the definition of “obscenity” established in Roth v. United States (1957). It also rejected the “utterly without redeeming social value” test of Memoirs v. Massachusetts.

In the three-part Miller test, three questions must receive affirmative responses for material to be considered “obscene”:
Would the average person, applying the contemporary community standards, viewing the work as a whole, find the work appeals to the prurient interest?
Does the work depict or describe sexual conduct in a patently offensive way?
Does the work taken as a whole lack serious literary, artistic, political, or scientific value?
One must distinguish “obscene” material, speech not protected by the First Amendment, from “indecent” material, speech protected for adults but not for children. The Supreme Court also ruled that “higher standards” may be established to protect minors from exposure to indecent material over the airwaves. In FCC v. Pacifica Foundation the court “recognized an interest in protecting minors from exposure to vulgar and offensive spoken language.”

Conflict with Other Legitimate Social or Governmental Interests
Does the speech conflict with other compelling interests? For example, in times of war, there may be reasons to restrict First Amendment rights because of conflicts with national security.