Our clinic has joined with 540 organizations across the country to oppose the forced separation of children and parents at the border. There is no legal, policy-based, or moral justification for harming children in an attempt to deter their parents from seeking asylum or entry into the United States. The Administration has options to keep children and families together and has declined to use them. The forcible, extended separation of children from their parents for any reason unrelated to the child’s immediate safety is inhumane.
A belated Foster Care Month, Tampa is still on fire, and some actually interesting appellate cases.
Here’s your periodic child welfare update. If you have any tips or suggestions, please let us know at rlatham@law.miami.edu.
What’s going on in child welfare world
Moving and shaking. Judge Ariana Fajardo Orshan has been nominated for US Attorney in Miami. News reports have called her a “divorce court judge” and a “family court judge.” Until recently, however, she was a dependency court judge in Unified Family Court.
International relations. International adoptions are down, largely due to changes in policy by Russia, China, and the DRC. A report by Axios shows that domestic adoptions are back to the levels they were before the financial crisis. Probably because the cost of living is one factor that determines foster care volunteer rates.
Hallmark doesn’t have cards for “I’m not legally allowed to know where my family is.” In honor of foster care month (which I guess was last month), here’s an essay that complicates the standard marketing messages a whole lot: Black Children and Foster Care: On surviving trauma of a system that doesn’t care about keeping families together. And meanwhile another foster child has died in custody.
Timeout. Hillsborough County’s foster care agencies got “blasted” by peer and OIG reports, and DCF is cracking down by making them write their own Corrective Action Plan and submit it in a month or so. That’s some tough justice. And if you think one peer report is “getting blasted,” Miami has two or three and can’t go out to play until it says it’s sorry.
Not it. Manatee County is trying not to be next, even though it is running a $3.8 million shortfall.
RSVP. A Hillsborough judge laid into case managers who do not appear in court to report on their cases. Be careful, judges — if case managers are sitting in your courtroom waiting on a hearing, they’re not out in the community getting kids to appointments and meeting with parents about their issues. Unless court calendars are very predictable or you set up a way for case managers to work in the courthouse itself, having them sit all day in a waiting room is likely not an efficient use of their time.
Everything is terrible. ProPublica reports that foster kids in Illinois are being held in psychiatric facilities longer than they legally should. So basically everything is terrible everywhere.
Mixed feelings martial arts. Justin Willis, an MMA fighter, explains how he learned to fight in foster care when staff encouraged pit fights among the kids. He now aims to raise awareness about violence and conditions in foster care. Says Willis, “If you take these kids out of their homes, you have to offer them something better. And what I received was not better. I wouldn’t say it was worse, but it created what I am today and that’s a monster when it comes to getting in that cage.”
Ok, not everything is terrible. A trans kid got adopted in a costume party themed ceremony and it is awesome.
And now for some court opinions…
Sometimes you just lose. The Fifth DCA ruled that the failure of a trial court to make specific findings when denying a TPR under Chapter 63 is not necessarily reversible error. You don’t get to make the judge work late just so you can quibble over findings. D.M. v. M.D., 5D18-473, 2018 WL 2448618 (Fla. 5th DCA May 30, 2018).
Daddy’s maybe? The Fourth DCA held that a biological father could not challenge an adoption more than one year after it was finalized. That’s normal, and where the opinion could have stopped. It also held, however, that he was not the legal father because the children were born during the mother’s intact marriage with another man, even though the trial court gave custody of the children to the biological father for a period of time as a non-relative. To assert his rights, the DCA ruled the father had to file a paternity action, a requirement I’m confident he probably did not anticipate given he had custody of his own kids. J.G. v. State, 4D18-0090, 2018 WL 2434817 (Fla. 4th DCA May 30, 2018).
So apparently there is a best interest of defaults. The Fourth DCA declined to set aside the default of a mother who was not personally served with a dependency petition, which was only filed the day before her arraignment. The court held that her appearance at the shelter hearing, where she was advised of her arraignment hearing date, obviated the need for personal service thereafter. C.J.L-M. v. Dep’t of Children & Families, 4D18-836, 2018 WL 2716717 (Fla. 4th DCA June 6, 2018). I note that DCF conceded error but the GAL Program did not. I understand that, in general, needless delays can be bad. But I’m curious how the Program could determine that it was in this child’s best interest for their parent to be defaulted on a one-day old petition before any discovery had likely even been done. I mean, what if the allegations in the petition were actually wrong and the child is now in care for no reason?
Because sometimes DCF gets it wrong. The Third DCA took the rare step of reversing a dependency that was based solely on (1) the mother leaving her child with a relative who had previously been through the system and had her own children successfully reunified, and (2) the discharge of a firearm in the presence of the child. The DCA held that neither situation constituted risk of harm to the child without additional facts. C.H. v. Dep’t of Children & Families, 3D18-291, 2018 WL 2422891 (Fla. 3d DCA May 30, 2018). Good thing she didn’t default.
A complete waste of everyone’s time. The Second DCA was put in the common position of reversing a change of goal and TOS to permanent guardianship for lack of proper notice. I get that you (DCF, GAL, child’s attorney, whoever), hint and grouse about changing the goal in hearings and hallways all the time. But threats are not notice. File the paperwork and set it out a week like you’re supposed to. In Interest of T.C., 239 So. 3d 1266, 1267 (Fla. 2d DCA 2018).
Speaking of wasting time. The Third DCA punted on the question of whether the Miami Herald can get access to an audio recording of a court hearing that its reporters were not present at. The opinion dismissed the appellate challenges from the family and child as premature because the trial court had not yet reviewed the record and determined what, if anything, the Herald would have access to. C.H.-C. v. Miami Herald Publ’g Co., 3D18-504, 2018 WL 2708374 (Fla. 3d DCA June 6, 2018). UPDATE: The Herald is reporting that the trial judge has reviewed the audio and ordered it released today. No word yet on whether the family will appeal.
Sometimes you just have to sue. Believe kids. The adoption intervention battles continue. Here’s some child welfare news.
The Miami Herald published a joint Op Ed by the next friends in the H.G. v. Carroll suit detailing why they (we) felt a lawsuit was both necessary and good. Kids in foster care aren’t getting what they need – that’s why we’re suing DCF.
A lawsuit against Lutheran Services, Children’s Network of Southwest Florida, Camelot, and others has partially survived a motion to dismiss. The suit alleges negligence and 1983 violations from the various agencies’ failure to seek dental care for a child who experienced significant medical harm.
More kids are getting Baker Acted, some as many as 10 times in a row. Having someone committed for stabilization results in their extra-judicial confinement in a lockdown psychiatric facility with no meaningful possibility of review. One or two times may be necessary for their safety, but ten times means you’re not solving the underlying problem and/or severely violating that person’s constitutional rights. Someone should look into that.
I do not think it means what you think it means. State has plan to fix care for foster teens says DCF Secretary Mike Carroll. Also says Mike Carroll, “We have zero tolerance for any management or practices that could result in anything less than excellent care for the children and families we serve.” I’m curious what “excellent” means in that sentence.
CHS, on the other hand, says we need to end foster care (as we know it) by embracing prevention services. Also, a ton of money is about to come down for prevention services, so this is a truly brave stand against the system.
You would save a lot of anguish by just believing kids. A juvenile detention center employee was arrested on federal charges after the death of a 17-year-old boy who died after being beaten by other kids in the facility. The employee used a honey-bun bounty system to encourage violence. Kids have been describing this practice for years, but nobody really believed them.
In case law news, I recognize there is a well-defined community of people who hate the idea of adoption intervention. However, when a parent consents to a private adoption, you can’t ram their TPR trial through to cut them off at the pass. Hold the intervention hearing and go from there. Y.G. v. Dep’t of Children & Families, 1D18-49, 2018 WL 2066792 (Fla. 1st DCA May 3, 2018).
On the other side, when your private adoption intervention gets denied, remember that the Juvenile Rules apply to adoptions from foster care. Be careful: motions for rehearing do not toll the time for an appeal under the Juvenile Rules. B.S. v. Dep’t of Children & Families, 1D17-2515, 2018 WL 1954457 (Fla. 1st DCA Apr. 25, 2018).
Relatedly, you can’t bifurcate a TPR trial into grounds and MBI and then kick the parent out (or go on without them) after the grounds are proven. R.E.B. v. Dep’t of Children & Families, 5D18-588, 2018 WL 1972642 (Fla. 5th DCA Apr. 27, 2018). Terminating someone’s parental rights should actually be hard.
Here’s my current reading list. Family Court Review published a special symposium on The Trump Administration and Children’s Human Rights. The intro by Barbara Stark lists all the reasons it’s worth getting your hands on a copy.
The Souls of Poor Folks report is a fantastic study of structural forces that reproduce poverty across generations. The growth of foster care as an organized industry is mentioned briefly as one of those structural forces. Quoting Margaret Prescod of Every Mother is a Working Mother:
What increasingly happened [with welfare reform] was that monies that would previously go to mothers on AFDC, and therefore to families headed by single mothers, got sucked into child welfare agencies and states were using those resources for child custody, foster care, and adoption services. Instead of going to support mothers with their housing or other basic needs, children are being taken away and placed in foster care, or are up for adoption, not because they are abused or neglected but because they are poor.
Thanks for having me! I had the pleasure of presenting at the Florida Disability Conference last week. The topic was using due process fees to expand your advocacy team. We had a great audience of people who definitely knew a lot more than I do. I’ve been told there will be a video at some point. The powerpoint and sample pleadings can be found here.
The Miami lawsuit moves forward, incarcerated parents are parents, Hillsborough is on fire. Your periodic child welfare news roundup.
Here’s an update on what’s happening in child welfare. Got a tip? Send it to robertlathamesq@gmail.com.
Motion to dismiss denied. Our office, along with other child advocates, sued the Department of Children and Families on behalf of our clients who have experienced inappropriate placements and dangerously frequent placement changes. We are seeking injunctive and declaratory relief to improve the quality and robustness of the placement array in the Southern Region. The suit is being prosecuted by Children’s Rights and the law firm Baker McKenzie. More information and the complaint can be found here. On Tuesday, the trial judge issued an order denying the Department’s motion to dismiss. The case is moving forward.
We can do better by families with incarcerated parents. The Brookings Institution will be publishing a journal and policy brief focusing on improving outcomes for children whose parents are incarcerated. This is just in time for Florida’s recent legislative change to clarify the requirements of case management for parents in jail. And hopefully in time to discourage FDC’s recently proposed reduction in family visits due to staffing shortages.
Gainesville does right. Gainesville has banned conversion therapy for minors. Why this has to be done at the local level is beyond me.
Foster kids with kids. A study in Texas showed that foster kids there were five times more likely to get pregnant. The one-year pregnancy rate was 5.7%, compared to 1.2% in the general population. And yet we hear constantly about programs that won’t work with pregnant teens.
Tampa on fire. Hillsborough shut down an agency and is now struggling to manage 2,000 kids. Most of the workers from the old agency will be absorbed into other agencies. This a good reminder that privatizing a public system does not necessarily create an efficient market for that system’s services. Government exists for a reason, folks.
Yes, children have positions. The Pennsylvania Superior Court ruled that a 5-year-old has a right to effective representation in a TPR case where his court-appointed attorney never met with him before taking a position that appeared potentially in conflict with his actual wishes regarding his mother. “At the time of the hearings, Child was just shy of six years old. While Child may not have been old enough to participate actively in [the attorney’s] representation of him, it is not unlikely that Child has feelings one way or another about his mother and his permanency.” (h/t to the Altoona Mirror)
Exodus 23:9. Florida’s resettlement offices are being reduced. This is bad news for kids.
“One way you do not recruit volunteers is charge them a lot of money out of pocket”
The Florida House Civil Justice & Claims Subcommittee heard testimony on HB 57. The bill would authorize pro bono attorneys representing special needs foster children to access due process funds for costs like deposition, evaluations, and subpoenas. The bill is sponsored by Representative Frank White of Pensacola: “One way you do not recruit volunteers is to charge them a lot of money out of pocket, and that’s what this bill fixes.
The testimony begins around 14:30.
Watch to the end for thoughts on retroactive application from Mr. Pitts. The committee voted unanimously to move the bill forward. Next stop: Justice Appropriations.
Everything you need to know about Florida child welfare news until something else comes along
Every time I tried to post this entry, I’d find something new in my inbox.
News
DCF says its investigators and caseworkers are still carrying dangerously high caseloads. http://floridapolitics.com/archives/247809-workloads-work-life-balance-continue-hobble-children-services-workforce
The Tampa Bay Times is asking for records regarding abuse of adults by home health care providers. The case was assigned to Karen Gievers. DCF is not objecting to the request. http://floridapolitics.com/archives/247326-times-court-order-dcf
The Orlando Sentinel reports on the use of $1B in state scholarships at poorly regulated and poorly managed private schools. http://www.orlandosentinel.com/features/education/os-florida-school-voucher-investigation-1018-htmlstory.html
A federal case in Kentucky recently ruled that relative caregivers were entitled to the same payments as foster families. (Will Florida follow? Relatives get a fraction of what strangers get to care for the same kids.) http://www.the-messenger.com/news/local/article_0b84ad05-2c0c-5e14-abad-7772c6b4b7a9.html
Commentary
Agreed, judges cannot ban children from courtrooms. Please stop it. http://justicebuilding.blogspot.com/2017/10/kids-are-people-too.html
Legislation
The Senate Finance Committee issued a report on the states’ weak oversight and control of their privatized child welfare providers. The report finds that 86 kids died while under one company’s care. (Florida uses/used this company too, but reportedly did not respond to the committee’s request for information.)
“State child welfare agencies report they have procedures in place to monitor child welfare providers’ performance and outcomes,” the report said. “But this investigation … shows that these policies are not always followed; exceptions are made, waivers are granted, profits are prioritized over children’s well-being, and sometimes those charged with keeping children safe look the other way.”
In coordination with the release of the report, the Child Welfare Oversight and Accountability Act of 2017 was filed. It would increase incentives for relative care, monitor privatized systems more closely, and increase scrutiny of child deaths. https://chronicleofsocialchange.org/child-welfare-2/senate-foster-care-bill-incentivize-kin-monitor-private-providers-child-fatalities
In Florida, a bill to allow pro bono attorneys for kids to access due process funds is moving through committee. http://www.flsenate.gov/Session/Bill/2018/00146
And a bill to ban child marriages is also moving forward (which is to say we could stand to be a little less backwards). http://www.flsenate.gov/Session/Bill/2018/00140
Regulation
DCF amended its rules on placing kids in out-of-state residential mental health programs. https://www.flrules.org/gateway/View_Notice.asp?id=19571319
Sheridan House Ministries, which runs a child care facility (group home), received an exception to the rule that its program director have the required educational and experience levels. https://www.flrules.org/gateway/View_Notice.asp?id=19541928
DCF is amending its rules to clarify the procedures for missing kids. https://www.flrules.org/gateway/View_Notice.asp?id=19459478
DCF is also creating a rule on emergency and runaway shelters. https://www.flrules.org/gateway/View_Notice.asp?id=19411851 and https://www.flrules.org/gateway/View_Notice.asp?id=19411948
And DCF is amending its rule on out-of-state criminal checks. https://www.flrules.org/gateway/View_Notice.asp?id=19604008
Whew that’s it for now.
Miami Herald tears open the juvenile delinquency system’s horrible secrets
Carol Marbin Miller and Audra Burch are unstoppable investigators. Their 2014 report Innocents Lost laid bare the child welfare system’s rampant lack of effort and oversight in abuse investigations. Now, with FIGHT CLUB, they set their sights on the juvenile delinquency system. And what they find is appalling: mismanagement of facilities, unbelievable hiring practices, and victimization of children that the Department of Juvenile Justice was charged with helping.
As I read through these articles, I could hear the voices of clients who have told similar stories over the years. Once they’re safely out of the programs, they often just want to look forward to better things instead of re-litigating the past. They had no sense that fighting would do any good for them or future incarcerated kids. The only rational strategy they saw was to escape.
One of my students today asked how this can continue to happen. “It doesn’t make any sense,” she said. But it does make sense. If you pull vulnerable kids out of their communities and homes, put them in isolated places behind locked closed doors, supervise them with some good staff who are poorly trained and unsupported, and supervise them with other staff who are evil, malicious, or unkind — this makes perfect sense. If you prioritize investment in security systems instead of schools, this makes sense. If kids who speak out get hurt and adults who don’t play along get fired, it makes sense. And if doing all of that generates $500 million a year in revenue for people who do not have to experience any of its harms, it almost couldn’t be any other way. Despite whatever good moments may happen on any given day at any particular program, violence has always been a feature of these systems, not a bug.
It is very easy to dismiss or rationalize away a single child’s stories of mistreatment as an aberration or justly deserved punishment. Articles like this and other acts of collective reckoning are often the only avenue towards justice available. What those in power do with these stories will reflect their priorities and assumptions about the world we live in. We have to challenge those assumptions. The solutions cannot be a pay raise for staff (money does not make you good), better video cameras (too many eyes watched these things happen already), or higher penalties for staff who hurt kids (kids should not be put in harm’s way to put more people in jail).
If you watch the looped video on the Herald’s website long enough, the answer becomes pretty apparent. You don’t need to fix them. These programs shouldn’t even exist.
And the first child welfare bills this session are…
If it feels like the legislative session just ended, that’s because it did. Florida’s constitution allows legislators to choose the session start date in even numbered years instead of the normal first Tuesday after the first whatever this is a confusing way to do dates. Why would they move it? Spring Break, campaign season, and possibly bloodlust for turkeys.
The hurricanes delayed the calendars a bit, so we are just seeing the first bills moving through committees. And they are:
SB 96 – Human Trafficking Education in Schools. Revising the required health education in public schools to include information regarding the dangers and signs of human trafficking; authorizing a student to opt out of a specified portion of the health education under certain circumstances, etc.
SB 108 – Florida Kidcare Program. Establishing the Kidcare Operational Efficiency and Health Care Improvement Workgroup as a task force administratively housed in the Department of Health to maximize the return on investment and enhance the operational efficiencies of the Florida Kidcare program, etc.
SB 222 – Guardian ad Litem Direct-support Organization. Abrogating the future repeal of provisions related to the guardian ad litem direct-support organization, etc.
That human trafficking one probably needs a tweak: letting parents opt their kids out of the HT curriculum seems unwise, since some parents traffic their kids.
Some other child welfare-related bills I’m watching this session:
- The 240 or so bills that eliminate Florida’s law permitting minors to marry with parental consent. Because, you know, some parents traffic their kids.
- A bill that would permit pro bono attorneys for kids in dependency cases to obtain due process costs from JAC. This is a no-brainer for me. Pro bono attorneys volunteer their services, but they should not also have to personally fund all of the litigation costs related to the case when there is always money leftover in the special needs appointment pot.
- Bills requiring a study on the use of direct files to charge minors as adults. Given the disparities we already know exist across the state, we really need to look into this.
I’m sure there will be lots more to come.
Florida case law update: bio fathers granted standing to assert rights
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:
- bringing paternity actions in dependency cases (the rules permit it);
- 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);
- not putting any weight on a court’s identification of the parents at a shelter hearing (it’s not a paternity hearing); and
- 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:
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Theresa Glennon, Somebody’s Child: Evaluating the Erosion of the Marital Presumption of Paternity, 102 W. Va. L. Rev. 547 (2000) (via heinonline.org)
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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)
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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)
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Melissa Murray, What’s So New About the New Illegitimacy?, 20 Am. U.J. Gender Soc. Pol’y & L. 387 (2012) (via ssrn.com)
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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)
The Florida foster care stats you’ve been waiting for: 24,152 kids in out-of-home care & which CBC is the biggest?
It’s been awhile since I posted a pile of graphs, so here we go. Out-of-home care numbers are still rising. That’s probably not a good thing.
All is not equal in the types of placements. Relatives are still shouldering most of the burden for foster care.
Finally, which CBC is really the biggest? It has always depended on how you measure.
The numbers here are from DCF’s Child Welfare Trend Reports. DCF keeps their own visualizations at the Child Welfare Dashboard. If you see anything wrong, interesting, or that-I-missed, let me know. Have a great weekend!