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Hamilton's final act leaves a legacy in Florida Law.

The two-year-old boy had been found clinging to his mother's lifeless body in her blood-soaked bed.

Fifteen shots, and thankfully not one of them had struck him. And now the father who had committed the murder wanted to exercise his parental rights, from jail, to determine who would raise the child he'd left traumatized and orphaned.

When John Hamilton saw the facts of the case, he knew this was not one he'd pass along to another pro bono attorney. No, this one he would keep. He often held onto the toughest ones when reviewing cases for the Legal Aid Society of the Orange County Bar Association.

Even as cancer began to ravage his lungs and spread throughout his body, Hamilton, a veteran appellate attorney with Foley & Lardner in Orlando, would go on preparing for what he figured would be his last oral argument--one in which a little boy's future hung in the balance.

At the last minute, though, he had to call on two other pro bono attorneys, Jamie Billotte Moses and Tom Young, to take his place.

"He was just too sick to do it," Moses said. "He was hospitalized the day before the argument, and went from the hospital to Hospice."

In the year since the murder, the toddler had been in the care of a maternal aunt he'd known ever since he was born. The killer wanted his own mother, who'd lived out of state and visited only twice before the murder, to adopt instead.

Twice denied in her petitions to adopt her grandson, the grandmother was now on her second appeal before Florida's Fifth District Court of Appeal. She and her son did not want the boy now called Lucas to remain with his aunt.

Custody could well have been the killer's motive all along. Since their breakup, he had made threats of violence against Lucas' mother and her family. (1) And yet, under Florida law, he still had a say in the matter.

Kate York, guardian ad litem staff attorney with the Legal Aid Society of the Orange County Bar Association, said Florida's adoption statute allows for private interventions and adoptions in dependency cases. York, who had become involved in Lucas' case, beginning with the shelter hearing at which he was placed with his aunt, had filed a memorandum of law challenging the application of the statute to Lucas' case.

"There had been some argument in prior cases, right before this one, as to what 'in the custody of the department' meant. As in this case, foster care doesn't mean another relative; the argument being that the legislature didn't intend for this to become a tug of war between two relatives, but to try to get kids out of foster care. That was my argument."

The judge had agreed, ruling that the grandmother was not considered a party, but the grandmother had appealed. After Hamilton successfully argued that appeal with the help of Christopher Carlyle, also serving pro bono, the grandmother filed for adoption again, this time in the domestic relations division instead of the juvenile division. After the second case was transferred to the juvenile division, where the dependency case was still pending, the judge declined to allow the guardian ad litem to participate but again denied adoption by the grandmother. Then the grandmother appealed again.

"Our argument on the [second] appeal was that the judge reached the right decision but was incorrect in saying she had no authority to appoint a guardian ad litem, and we pointed to a statute that was very broad in its language that the court could do anything in the best interest of the child, and that includes appointing a guardian ad litem."

Moses also asked the court of appeal to give instructions to the trial court or guidance to the legislature on how to resolve the conflict that often arises between parental rights and a child's best interest, as it had in Lucas' case. And it did.

"The opinion was basically, 'You all need to do something to fix this problem. The trial courts must have authority to decide what's in the best interests of the child in this situation.' So it was remanded back to the trial court to appoint a guardian ad litem and to jump through the best-interest analysis," Moses said.

Young said the case came at a serendipitous time in that the Statewide Guardian Ad Litem Office had been working with the legislature to clarify the consideration courts must give to the best interests of the child under the statute.

"And this case became the poster child for the legislative effort, so it was a significant case for the child, but its impact, I think, really was statewide, not because it declared anything extraordinary but because it made the problem personified, and it was so easy to understand at that point," Young said.

Subsequently amended by the legislature, F.S. [section]63.082(b)(c) still gives some weight to a parent's right to determine an appropriate placement, but it now includes language clarifying that courts must consider other factors as well. Among these are the child's relationship with the established caregiver, the stability of the current home, the desire for continuity of placement, the importance of maintaining sibling relationships, and what is best for the child.

"Now it's very clear that courts can consider the child's best interest in determining whether to permit intervention and adoption at the parent's direction," Young said.

Hamilton lost his battle with cancer just over a month after the second appeal was won and just before the legislature changed the statute. Moses, who described him as "universally revered as a brilliant appellate practitioner," said the credit goes to him and to York for preparing the winning arguments in the appeals. Together, they put in hundreds of hours.

"The right thing happened in this case because of gifted advocates that were representing this child for free," Moses said.

Viviane Acarie, the aunt who adopted Lucas, now six, has been raising him alongside her five-year-old daughter ever since her sister's murder. She said she thanks God for putting Hamilton on the case.

"He was an angel in my life," Acarie said.

She said that after three years of therapy, Lucas is doing well, but he has not forgotten his mother, nor what his father did to her.

"He has a drawer at home where he keeps things for her. He makes drawings, goes to the beach and collects seashells for her," Acarie said, adding that Lucas recognizes her as his mother now, too. "He knows he has two moms, one in Heaven and one on Earth."

(1) Elyssa Cherny, Jury Finds Kristofer Gould Guilty in 2012 Slaying of Ex, Orlando Sentinel, June 29, 2016, available at http://www.orlandosentinel.com/news/ breaking-news/os-kristofer-gould-murderverdict-20160629-story.html.

Caption: Pictured from left to right are Jamie Billotte Moses, Viviane Acarie, Kate York, and Tom Young. They hold a portrait of John Hamilton, the pro bono attorney who completed the majority of the work on the case. Hamilton was diagnosed with lung cancer and went into Hospice the day before the oral argument. He passed away soon thereafter. Photo by Judy Watson Tracy.
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Title Annotation:lawyer John Hamilton's pro bono efforts in child custody case before dying of cancer; Pro Bono Pros
Author:Kinnally, Nancy Maass
Publication:Florida Bar Journal
Date:Mar 1, 2017
Words:1199
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