News has traveled at this point that FSU Professor Paolo Annino has filed a petition in the First DCA placing the issue of a child’s right to counsel squarely before the court. In his case, the child is fighting a TPR petition that is brought by DCF and supported by the GAL. The child moved for either DCF or the JAC to pay for a bonding assessment, because the 8-year-old child was (obviously) indigent. The trial court’s ruling:
This Court finds that the minor child does not have a constitutional right to appointed counsel in a termination of parental rights trial and agrees with the legal position taken by both DCF and the JAC. Accordingly, the minor child is not entitled to have the JAC pay for litigation expenses such as expert evaluations, etc. for the purposes of preparing for trial. This Court further finds that DCF is not required to pay for expenses that are not for the purposes of provided recommended services for the minor child, but are litigation expenses requested on behalf of the minor child.
Trial Court Order, In re S.S., (October 4, 2011).
Professor Annino’s cert petition challenges the denial of funding on three grounds: Due Process (if the child has a due process right to counsel, then JAC has to pay), Access to courts (failing to fund counsel denies access), and Right to privacy (a new Florida right to analyze right to counsel under since the last time such a case was decided). It will be interesting to see if the final analysis of the case hinges on the rights of the child as hoped or instead slips into separation of powers or something completely unexpected.
The mother appeals an order terminating her parental rights. She argues the court erred in denying her motion to dismiss the amended petition, which failed to allege reasonable efforts to preserve and reunify the family, that termination was not the least restrictive means of protecting the child, and that the mother was not responsible for the lack of contact with the child. We find no error and affirm.
There are some interesting things to note about this case. First, this was an expedited TPR for abandonment, which DCF actually dismissed and the child herself adopted and prosecuted. Since there is no mention of the GAL Program except in the Appellee line, it’s not clear what role they played, but they apparently did not side with the child. This is a very simple testament to why kids deserve legal representation—the child’s legally valid position was dismissed by everyone in the room. I applaud this part of the case.
I take issue with the substantive reasoning, however. This case offers a picture of what direction LRM analysis is taking (if it’s going in any coherent direction at all, of which I am doubtful). LRM has gone through many forms over the years. First, it was a pressure release valve to prevent the automatic termination of non-victim siblings. Then it detoured briefly in the early 2000s when defense attorneys managed to convince a few judges that they had to consider the possibility of a permanent guardianship prior to TPR. The legislature and court eventually tamped that out. More recently, it has taken what I think is its purer form: the question of whether the parent has received procedural fairness and a reasonable opportunity to remedy the circumstances that caused the dependency.
What constitutes a “reasonable opportunity to remedy” is in flux. LRM should not even be needed in cases under 39.806(1)(e), because the statutory definition already requires reasonable efforts by DCF. The egregious abuse cases are generally accepted as not requiring an opportunity for rehabilitation, which is also consistent with the statute and therefore a meaningless addition. Abandonment cases, however, pose an analytic problem because those cases split down the middle: sometimes expedited TPR is ok, sometimes it isn’t. Case law has dealt with this in no less than three ways.
(1) “Egregious abandonment.” Chapter 39 defines “egregious conduct” as “abuse, abandonment, or neglect” that is deplorable by a normal standard of conduct. This implies that there are levels of abandonment and some of them are appropriate for expedited TPR. In practice, abandonment is more of an all-or-nothing proposition. Either you were able and had a relationship and provided support, or you didn’t. The statute provides no guidance on what a non-deplorable method of abandoning your child would be. Some attorneys have dithered about the reasons for the abandonment, but the reasons should get subsumed into the “ability” requirement, and not into grading whether, for example, abandoning your child to do humanitarian work is a difference that matters.
(2) Focus on the parent’s efforts or amenability. There is a set of cases that focuses on whether the parent was “knocking at the door,” attempting to make contact with their child, and was thwarted. See C.A.T., out of the Fifth DCA. This would probably also be more appropriately analyzed under the “ability” requirement, but instead often gets lumped into a least restrictive means analysis. If they were trying so hard, something must have made them unable to actually have a relationship.
(3) Focus on pre-existing relationship. Finally, there are a few cases that look to the original formulation of LRM and say that it is meant to re-establish a bond. Where there was no bond, there is no LRM violation in expediting TPR. Note this theory seems to eliminate the LRM requirement in a large category of cases—for example, newborns removed directly at birth.
L.W. falls uncomfortably into categories (2) and (3). The mother in L.W. did make some efforts early on, but eventually gave up. However, the court acknowledges that she was thwarted by the father and other circumstances. The Court says the mother has no current bond with the child, but ignores that she raised the child for eight years: the previous line of cases stress that LRM’s goal is to re-establish the bond through services. C.A.T., for example, finds this fact very important in denying TPR of a father. We know services could have been attempted with the L.W. mother because the trial court implicitly found that the relationship wasn’t harmful to the child by dismissing the no-contact order. Finally, the only testimony cited regarding support was that the mother did not have the financial ability to provide for the child—which should completely bar a TPR for abandonment.
It’s cases like these that reinforce Judge Sawaya’s opinion that LRM is a meaningless and superfluous requirement. As Judge Sawaya argued in T.P., “The ‘safe re-establishment of the parent-child bond’ is one of the factors the trial court must consider under section 39.810, particularly section 39.810(3). Therefore, the least restrictive means test is subsumed in the factors that must be found by clear and convincing evidence to exist under section 39.810. … I, therefore, conclude that application of section 39.810 renders the less restrictive means test obsolete, unnecessary, and meaningless.” T.P. v. DCF, 860 So. 2d 1084 (Fla. 5th DCA 2003) (J.Sawaya specially concurring; reversed on other grounds) (order of sentences inverted for dramatic effect).
Assuming that abandonment was proven, analyzing this case through MBI instead of LRM makes the outcome easier to understand. There is a permanent placement available; the mother admitted she couldn’t financially care for the child; the pre-adoptive placement is caring for the child’s needs, including the trauma she suffered with the father; there is no current relationship with the mother and thus no harm from TPR; the mother’s capacity to ever be reunified safely with the child is limited by her own problems; and the child clearly wishes not to return to the mother. The only factor against TPR might have been the recommendation of the GAL, which could easily be set aside on the weight of the other factors.
Maybe one day abandonment will be put on that egregious abuse list and taken out of LRM world altogether. Until then, good luck making sense of it, even when the outcome seems to be right.
The 2011 Supreme Court Session kicked off yesterday. Family law is not much dealt with at the federal level, and this session is no exception. However, here are a few cases (and their OA dates) that may have some impact on families, and children and youth in and out of foster care:
10/3/11 – REYNOLDS v. UNITED STATES. The Oyez Project at IIT Chicago-Kent College of Law. 03 October 2011 (sex offender registration laws under SORNA).
11/1/11 – MINNECI v. POLLARD. The Oyez Project at IIT Chicago-Kent College of Law. 03 October 2011 (“Can employees of private prison operators be sued for violating the constitutional rights of inmates?”).
11/30/11 – FAA v. COOPER. The Oyez Project at IIT Chicago-Kent College of Law. 03 October 2011 (mental and emotional damages for misuse of information under the Privacy Act).
12/6/11 – WILLIAMS v. ILLINOIS. The Oyez Project at IIT Chicago-Kent College of Law. 03 October 2011 (“Can an expert witness be called as a stand-in for a lab analyst who actually did a test on criminal evidence, but did not appear at the trial?”).
no date set – HOLDER v. GUTIERREZ. The Oyez Project at IIT Chicago-Kent College of Law. 03 October 2011 (imputing parent’s legal residence status to children).
no date set – COLEMAN v. MARYLAND COURT OF APPEALS. The Oyez Project at IIT Chicago-Kent College of Law. 03 October 2011 (“Did Congress constitutionally abrogate states’ Eleventh Amendment immunity when it passed the self-care leave provision of the Family and Medical Leave Act?”).