National Center for Youth Law


M.W. v. Davis

This case addresses whether a foster child in the legal custody of Florida’s Department of Children and Families (DCF) is entitled to a hearing under the Florida Mental Health Act, and the due process and right to privacy guarantees of Florida’s Constitution before the state commits the child to a long-term, locked psychiatric institution.



98-3547 (S.D. Fla., Sept. 12, 1998); No. SC 95, 443 (Fla. Sup. Ct.); Amendment to the Rules of Juvenile Procedure, Fla. R. Juv. P. 8.350, Case No. SC-00-2044


722 So.2d. 966 (Fla. 4th D.C.A. 1999), reh’g denied, 729 So.2d. 481 (Fla. 4th D.C.A. 1999), aff’d, 756 So.2d 90 (Fla. 2000); Amendment to the Rules of Juvenile Procedure, Fla. R. Juv. P. 8.350, 804 So.2d 1206 (Fla. 2001); Amendment to the Rules of Juvenile Procedure, Fla. R. Juv. P. 8.350, 842 So.2d 763 (Fla. 2003)




Bernard Perlmutter
University of Miami School of Law
Children & Youth Law Clinic
1311 Miller Drive, F305
Coral Gables, FL 33146
(305) 284-3123
Fax: (305) 284-4384


The petitioner, M.W., was in the custody of DCF. On October 27, 1998, by writ of habeas corpus, the Fourth District Court of Appeal granted M.W.’s release from a locked psychiatric facility on the grounds of South Florida State Hospital. On defendants’ motion for rehearing, rehearing en banc and certification, the district court withdrew its earlier opinion and denied the child’s relief.

M.W. moved for rehearing, rehearing en banc, and certification. The district court denied the motions for rehearing and rehearing en banc, but certified as a matter of great importance the following question: “Is a hearing which complies with the requirements of Sections 39.407(4) and 394.467(1), Florida Statutes, necessary when a court orders that a child be placed in a residential facility for mental health treatment, where the child has been committed to the legal custody of the Department of Children and Family Services and the Department is seeking residential treatment?” M.W. filed in the Fourth District a timely notice to invoke discretionary review by the Florida Supreme Court.

In October 2001, the Florida Supreme Court, by a 6-1 vote, proposed an amendment to the Florida Rules of Juvenile Procedure mandating that foster children must have a “meaningful opportunity to be heard” before the state can commit them to a residential psychiatric facility against their will, including affording legal counsel and a hearing.

On March 6, 2003, the Supreme Court issued its opinion and adopted a final rule, mandating hearings and paid counsel for foster children facing involuntary commitment to psychiatric facilities. The decision is the Court’s first recognition that a foster child has the right to be heard through paid appointed counsel, and it may permit reconsideration of an earlier decision that foster children are not constitutionally entitled to counsel.