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Two Florida district courts issued favorable rulings for biological fathers this month. Both fathers were granted standing and a chance to assert their claim over the objection of the presumptive legal fathers.

The Second District permitted a biological father to challenge the paternity of a man on the birth certificate. The court approved of the following:

1. bringing paternity actions in dependency cases (the rules permit it);
2. standing of bio fathers to challenge paternity based on fraud, duress, or material mistake of fact (in this case, the mother’s fraud and the legal father’s mistake of fact);
3. not putting any weight on a court’s identification of the parents at a shelter hearing (it’s not a paternity hearing); and
4. recognizing prospective parents as participants when in the best interest of the children  (the statute requires it).

In re Y.R-P. (Fla. 2nd DCA 2017).

There’s nothing legally new here, but it is a nice roadmap for handling those convoluted cases where two (unmarried) men are vying for the same child.

The Fourth District addressed the issue of standing when the legal father is married to the mother in Perkins v. Simmonds (Fla. 4th DCA 2017). The Fourth rejected an absolute bar to challenging the presumption of paternity when a child is born into an intact marriage, and instead re-affirmed its prior holdings that the presumption must give way when it “outrage[s] common sense and logic.” (Not a particularly helpful formulation, but better than an inflexible bar.) In this case, the child was given the bio father’s last name, was financially supported by the bio father, and had a strong relationship with the bio father. That was more than enough to give the bio father standing to assert paternity.

These seem like good outcomes. Maybe one day we can be done with the legal concept of legitimacy and all the problems it invites.

See also:

• Theresa Glennon, Somebody’s Child: Evaluating the Erosion of the Marital Presumption of Paternity, 102 W. Va. L. Rev. 547 (2000) (via heinonline.org)
• David D. Meyer, Parenthood in A Time of Transition: Tensions Between Legal, Biological, and Social Conceptions of Parenthood, 54 Am. J. Comp. L. 125 (2006) (via jstor.org)
• Sarah McGinnis, You Are Not the Father: How State Paternity Laws Protect (and Fail to Protect) the Best Interests of Children, 16 Am. U.J. Gender Soc. Pol’y & L. 311, 312 (2007) (via digitalcommons.wcl.american.edu)
• Melanie B. Jacobs, My Two Dads: Disaggregating Biological and Social Paternity, 38 Ariz. St. L.J. 809, 810 (2006) (via digitalcommons.law.msu.edu)
• Melanie B. Jacobs, Parental Parity: Intentional Parenthood’s Promise, 64 Buff. L. Rev. 465 (2016) (via digitalcommons.law.msu.edu)
• Melissa Murray, What’s So New About the New Illegitimacy?, 20 Am. U.J. Gender Soc. Pol’y & L. 387 (2012) (via ssrn.com)
• Leslie Joan Harris, Involving Nonresident Fathers in Dependency Cases: New Efforts, New Problems, New Solutions, 9 J.L. & Fam. Stud. 281 (2007) (via heinonline.org)

Let’s talk about fathers for a second. One critique of child welfare law is that it puts a significant burden on mothers while essentially ignoring fathers until they become inconvenient. Two cases out of Florida this month highlight this phenomenon.

In the first case, twin children were sheltered from their mother due to neglect. The father had been out-of-state in prison on drug charges for the twins’ whole life. He met the children only once when the mother brought them to see him while he was on a furlough pass. Once the case was commenced, he appeared at every hearing by phone and called the children during his furloughs — but not while in prison, he said, because he could only make collect calls. After the mother did not comply with her case plan, the Department filed for TPR on both parents. While the trial was pending, the mother died in a car accident. The father then learned that he would be released from prison five days after the scheduled TPR trial. He had a place to live and a job lined up. There children were not in a pre-adoptive home. The Court terminated his rights anyway. The First DCA reversed the termination.

In the second case, a child was sheltered at birth after testing positive for cocaine. The mother was married, but estranged from her husband. The biological father was on the birth certificate. Under the law, this scenario makes the husband the legal father. The family was advised how to fix the paternity issues and the biological father was sent away until he addressed his legal status. He filed a notice with the Putative Father Registry, but took no other action. A year passed, the mother did not comply with her case plan, and the biological father then filed legal motions to establish his rights to the child after TPR was already filed. The Fourth DCA held that the year and a half delay was too long — he had no parental rights because he was not fast enough in legally asserting them.

The problem here is twofold: first that the system was perfectly happy to ignore the fathers until they asserted their rights against a TPR; and second that the fathers appeared content (or at least not incentivized) to let the mothers do all the hard work to get the kids back until they failed. The trial judge in the First DCA case terminated a father’s rights despite no clear plan for permanency for the child — the children would have to build a relationship with either the father or a pre-adoptive family — and despite no apparent effort to actually nurture that relationship for over a year. (The mother, not the State, took the child to see the father on his furlough in Mississippi before the case came in.) The Fourth DCA, in its written opinion, unfavorably compared its bio father’s effort to those shown by the foster parents’ — a poor comparison given that the whole child welfare system is designed to recruit, train, and support foster parents (well, comparatively speaking), whereas the father was dismissed from the case and left to find his way back on his own. The father may have reasonably determined that the best course was to allow the mother to reunify and then reconcile with her and the kids, especially since he himself was not accused of any wrongdoing.

Neither of these cases had to end this way. We can resolve messy paternity issues early with little effort — especially when the legal father is completely absent. We can make concerted efforts to build relationships between fathers and their children, even if they’re out-of-state or in prison. What we shouldn’t do is ignore half of a child’s family.

Here are some resources on doing that:

Engaging Fathers and Paternal Family Members (childwelfare.gov)

Barriers to Father Involvement in the Child Welfare System (fatherhood.gov)

Exploring the bias against fathers in the Child Welfare System (ucdavis.edu)

The Third DCA ruled against our clinic yesterday, holding that access to federal Education and Training Vouchers (ETV) could be restricted by the State through the creation of programs with additional eligibility rules. While I disagree with the reasoning of the Court, I’m writing here about the original source of injustice in this case.

Our clinic was retained by an amazing young woman who needed help during her Independent Living years. From the opinion:

Cormier was born on November 11, 1995. She lived in the Bahamas with her mother until she was fourteen years old and then moved to Florida to live with her father. On October 2, 2013, DCF removed Cormier from her father’s care due to alleged physical abuse and domestic violence, and thereafter, she entered the dependency court system. Cormier was sheltered briefly and then placed into the temporary custody of a non-relative caregiver, where she remained for approximately six weeks before turning eighteen. As the hearing on the petition for dependency was scheduled for a date after Cormier turned eighteen, the hearing was never conducted and the dependency case was closed.

Independent Living benefits provide case management support and financial resources to kids aging out of the foster care system to help them be successful, and to help them avoid homelessness, criminal justice involvement, and the host of other bad outcomes that statistics show foster kids endure.  The IL Program has various sub-programs with differing eligibility criteria. The most liberal program is the Extended Foster Care Program, which only requires a young person to age out of care in a licensed placement and participate in school, work, or similar activities. The Post-secondary Education Support Services (PESS) program is the most restrictive — it requires a young person to be adjudicated dependent, age out of licensed foster care, have been in foster care for at least 6 months, and maintain good academic standing in college or vocational school.

Knowing these criteria, certain facts about our client’s case stand out: Her placement in a unlicensed placement made her ineligible for any IL Program even though that decision is largely not up to the child. Statewide, the Department is relying more heavily on unlicensed non-relative placements largely due to the lack of licensed foster placements. In November 2013 when our client aged out, only about 8.6% of children under DCF supervision were placed with non-relatives. In March 2017, that had risen to 11.93% — that’s 8,623 kids who will not be eligible for IL support if they age out.

The fact that her case closed without an adjudication means she would not have been eligible for PESS even if she were in a licensed placement for 6 months. Cases shouldn’t take 6 months to adjudicate, you say? They can if they go on appeal. And the Florida Supreme Court ruled in O.I.C.L. that the appeal of a child who ages out of care is moot. It would not have been moot to this young woman, who is striving to be successful with all of the history and none of the support given to a narrow group of foster kids. Nine-thousand kids in non-relative placements and an unknowable number of kids whose cases languish in the courts will be in her shoes soon.