Florida’s Third DCA is now live broadcasting oral arguments. I tried to make a recording of yesterday’s, but failed. Hopefully next time a dependency/child related case comes up I’ll be more prepared.
Here were the issues in Z.S.M. v. DCF:
- Was there competent and substantial evidence to support a TPR where the mother had mental health problems and unresolved substance abuse and had not complied with services?
- Can a foster parent join the TPR petition and thereby become a party with appellate rights?
On the sufficiency of the evidence question, all three judges appeared likely to PCA. Judge Schwartz was the usual antagonist of the Department, asking them to point to the evidence of harm to the child in the record, as the child had been removed from the mother at a few weeks old. When the Department failed to give a sufficient answer, Judge Schwartz responded, “Three generations of idiots is just enough, right?” The Department agreed. Had the attorney recognized the reference, she might have though twice. It’s obviously a paraphrase of Justice Holmes’ closing line from Buck v. Bell, the 1927 Supreme Court case that said that forced sterilization of “incompetents” was constitutional. DCF is a social eugenics program? This is not the first time someone has levied that charge, though it usually doesn’t come from the bench.
Regarding the intervention of foster parents, the panel seemed inclined to allow it, probably also without opinion. Judges Emas and Fernandez pointed to the statute that says that “any person” can file a TPR petition and the rule that says the petitioner is a party (it would be a weird system where the petitioner was somehow not a party). Judge Schwartz had some constitutional reservations about the whole thing, as the foster parents would fall into the category of a person who “is informed” of allegations and “believes them to be true.” For him this seemed to encroach too far into parental rights, and he’d raise a standing bar to keep these cases from even being brought. Forget if you can prove a child was abused–if you didn’t see it with your own eyes, you wouldn’t be able to do anything under Judge Schwartz’s interpretation. Judges Emas and Fernandez did not seem inclined to join this position.
Prediction: PCA on both issues.
The case below reinforces my strongly held belief that the appellate briefs (not the full record, however) in dependency and TPR cases should be public. The briefs are already redacted and the opinions publish much of the same information found in the briefs. There’s no reason to keep them hidden. It only serves to prevent public comment and amicus on cases until after they are decided and its too late. Given the important public interests at stake, public participation could only be a good thing.
The appellant is the mother of two children, K.B. (age nine at the time of the proceedings below) and A.V. (age three). She appeals an order denying her motion for reunification with K.B. in a circuit court dependency case following her substantial compliance with the tasks in her case plan. She has also appealed orders approving a general magistrate’s report finding that custody of K.B. should remain with her father (with visitation by her mother), terminating supervision by the Department of Children and Families (DCF), and terminating the circuit court’s jurisdiction. This case requires us to consider the applicability of different and apparently inconsistent statutory provisions relating to reunification,sections 39.522(2) and 39.621(10), Florida Statutes (2010).
S. V.-R., Appellant, v. Department of Children and Family Services, — So.3d —-, 2011 WL 5375047 (Fla. 3d DCA 2011).
This case is disappointing not only because it’s wrong, but because it is incomplete. The Third DCA has failed to address any of the following questions:
- Why doesn’t the more specific standard in 39.521(3)(b)2 apply here? This section directly addresses the disposition procedure for when there’s a non-offending parent, and states “The standard for changing custody of the child from one parent to another or to a relative or another adult approved by the court shall be the best interest of the child.”
- What should we make of In re G.M., — So.3d —-, 2011 WL 5061545 (Fla. 2d DCA 2011) (decided October 26, 2011), which applies BOTH 39.621(10) and 39.522(2) to the exact same factual situation, thus creating a endangerment + best interests standard? That seems to render the statutory scheme both consistent and fair.
- What about B.C. v. Dep’t of Children & Families,864 So.2d 486, 491 (Fla. 5th DCA 2004) (“The non-offending parent’s presumptive right to custody is mandatory and not subject to a separate determination of the child’s best interests.”).
- Why wasn’t the case plan goal of “reunification with parents” perfected with placement with the nonoffending father? There are no goal options under 39.621 that would avoid this situation–there’s no goal of “maintain and strengthen” or “rehabilitate the offending parent for the purposes of visitation or time sharing”. After this case, lower courts will be dissuaded from offering a case plan at all to the offending parent because they will be forced to spring the child back to that parent’s full custody regardless of any change in situation in the interim. Closing cases with one nonoffending parent might save a lot of money but will also likely result in a lot of re-abuse.
- What about the effect on the child? She’s ripped from her home that she doesn’t want to leave just because her mother finally got around to finishing a parenting class. This is contrary to everything we know about child development, psychology, and humane treatment. The system is supposed to promote permanency and stability, not have a sword of Damocles hanging over the head of every child in the home of a nonoffending parent.
The evil of this decision is that it treats a nonoffending parent as though they were any old temporary custodian or foster care provider. The Due Process implications of that alone are huge. Neither the statute nor common sense required this outcome. The Third should grant a rehearing, and the legislature should create more clarity and flexibility in permanency options for future courts.