The Power of Experts in Child Welfare Law

The basis of the petition to terminate the mother’s rights was the alleged insufficiency of her attempts to keep the children’s mentally ill and highly abusive father from her home and away from the children. There is no allegation that the mother has otherwise harmed her children or has not provided for their care. With regard to section 39.806(1)(c), the evidence does not remotely establish, as required, that “continued interaction with the [mother] threatens the life, safety, or health of the child[ren], and … that this threat cannot be remedied by the provision of services.” … Here, the evidence showed that, albeit without always following her case safety plan in every respect or achieving success in doing so, the mother conscientiously endeavored—in fact, as an examining psychologist testified, did everything “within her powers”—to protect the children from their offending father.

A.H. v. Department of Children & Families, — So.3d —-, 2011 WL 6783631 (Fla. 3rd DCA December 28, 2011).

This is a sufficiency of the evidence case. Because appellate briefs in dependency cases are not public, we have no way of knowing what evidence purportedly supported the trial judge’s ruling, and we’re left to accept the appellate court’s conclusion that there was none.

I write instead to comment on the power of the expert in this case. In the opinion, the psychological expert is cited as giving three recommendations: (1) that mother did everything in her power to stop the father, (2) the TPR should be denied, and (3) the mother was not in need of services. Only the third of those recommendations is arguably within the realm of psychological expertise. The first is personal opinion about the mother’s efforts; the second is a bald legal conclusion. No expert is cited on the other side.

The law appreciates the power and danger of experts. In guardianship cases, two of three experts have to agree that you are incompetent. In dependency and criminal cases, you are entitled to retain your own expert, paid for by the Justice Administrative Commission (JAC), to rebut the State’s case. The Department certainly spends a lot of resources on contracts with experts, and the Guardian ad Litem Program has been known to use its limited litigation budget to obtain its own expert in rare cases. Dependency, more so than almost any other area of law, is dominated by psychological experts and their predictions about future behavior. As was apparent in A.H., even their nonexpert opinions can carry significant weight in framing the facts of a case.

It’s noteworthy that in Dependency cases there is still one party that has no access to his or her own expert. The Justice Administrative Commission has recently taken the position in at least two cases–a TPR case and more recently a SIPP case–that children and youth in foster care who are fighting a proposed action by the Department have no legal right to paid-for experts. The reason, says JAC, is because the children and youth have no constitutional rights at stake.

I find this odd. I have never had any trouble identifying the constitutional rights implicated when a person is being indefinitely committed to a lock-down residential treatment facility where she will be subjected to forcible injections of psychotropic medication, physical restraint, and isolation against her will. Or when a child is facing the permanent loss of familial relations with his or her parent. JAC says there is no case or statute that says that this implicates constitutional rights. As I have heard wise judges say, there is also no case or statute that says today is Friday.

Stay tuned.

“Judicial Event Horizon” – Dual Maternity in Florida

A lesbian couple has a baby (one supplies the eggs, one supplies the womb), raises it, and eventually separates. The birth mother runs to Australia. The biological mother seeks to assert parental rights.

Our analysis reveals that there is nothing in chapter 742, and specifically section 742.14, that addresses the situation where the child has both a biological mother and a birth mother who were engaged in a committed relationship for many years and who decided to have a child to love and raise together as equal parental partners. This is a unique case, and the appellate courts in Florida have never before considered a case quite like it. Based on the facts and circumstances of this case, we can discern no legally valid reason to deprive either woman of parental rights to this child.

We certify to the Florida Supreme Court the following question as a matter of great public importance: Does application of section 742.14 to deprive parental rights to a lesbian woman who provided her ova to her lesbian partner so both women could have a child to raise together as equal parental partners and who did parent the child for several years after its birth render the statute unconstitutional under the Equal Protection and Privacy clauses of the Federal and State Constitutions?

T.M.H., Appellant, v. D.M.T., Appellee., — So.3d —-, 2011 WL 6437247 (Fla. 5th DCA 2011) (December 23, 2011).

Almost the entire majority opinion is written to address the lengthy arguments by the dissent. I would read that to mean the Fifth DCA expects the Florida Supreme Court to take this one up.


This is what happened at the Committee on Children, Families and Elder Affairs

The Florida Senate’s Committee on Children, Families, and Elder Affairs convened on December 7, 2011. A link to the committee’s page, along with audio of the hearing, is here:

Notable events:

  • Senate Bill 434 to modify the IL Program to an extended foster care model was approved.
  • Alan Abramowitz presented on the GAL Program’s NICE Pilot (GALs driving children) and received a commitment to creating legislative language to preclude judges from ordering GALs to drive and language stating that a GAL’s driving does not relieve the CBCs of any duties they otherwise owe to the child.
  • OPPAGA gave a rushed overview of current the current IL Program, but technical difficulties made it unbearable to listen to at the end.


Dependency Oral Argument: A.F. v. DCF (Fla. 3rd DCA)

While I wish the issue was a little more interesting, I’m excited that this is the first dependency appellate oral argument I can bring you. Concept proven.

Court: Florida Third District Court of Appeal

Judges: Salter, Fernandez, Shepherd

Attorneys: Kevin Colbert for the mother; Karla Perkins for DCF

Issue: Whether the trial court’s dependency order contained sufficient findings of fact for appellate review.

Fifth DCA Says No New Law Violations is a Reasonable Case Plan Task

We fully agree with the C.N. panel’s well-reasoned conclusion that breach of a no new law violation condition, standing alone, is insufficient to terminate parental rights. But, we disagree with the conclusion, in dicta, that no such condition may be imposed in the first place, or that doing so violates the separation of powers doctrine.

S.S. v. DCF, — So.3d —-, 2011 WL 6101945 (Fla.App. 5 Dist.)

This is great news. I know that in Miami, at least, the opinion of C.N. (out of the Second) caused an immediate flurry of case plan amendments ripping “no new law violations” out of case plans. The Fifth does a good job of explaining why that’s not necessary or logical.

I will add a few thoughts. I stand by my description of case plans as “due process machines.” They put a parent on notice of what is expected of them and, at a TPR trial, those are the things that can reasonably be addressed as points of failure. Case plans, however, contain lots of instructions and tasks that some case managers describe as “boilerplate” but I like to describe as “essential to a well-functioning system.” Those tasks include maintaining contact with the case manager, updating the case manager on changes of address, participating in various staffings, signing various releases. “No new law violations” sometimes falls into this category of administrative tasks: parents in jail have almost no access to the services they are supposed to be participating in. Being arrested for a willful act is equivalent in most cases to moving out of state or declaring you’d like to take summer off from services. Such behavior does not expedite permanency for the child.

But should a single violation of that task be grounds for termination? Probably not. The definition of “substantial compliance with the case plan” has almost nothing to do with the individual tasks, except that failure to participate in or successfully complete the services is prima facie evidence of continuing abuse/abandonment/neglect under 39.806(1)(e). The question of substantial compliance is whether the parent has made sufficient progress that it is safe to return the child to the parent’s home. Failure to sign medical releases may have no bearing on the safety of the child. Being arrested for a crime may have no bearing on the child’s safety either.

But they may. The excess of C.N. was that it appeared to say that it was never a permissible case plan task to forbid a parent from committing further violations of law. “Never” is an overly restrictive word in the necessarily case-by-case workings of dependency law. In a case where the parent’s case plan was created to remedy abandonment due to repeated incarceration, it would be perfectly natural to have a case plan task forbidding willful violations of law. In fact, it would be the core measure of compliance regardless of whether it was in the case plan or not.

Compare it to substance abuse. Should one relapse be considered a material breach if the parent was otherwise making progress? No. Should one violation of law be considered a material breach if the parent was otherwise stabilizing her life? No. Should the thirtieth law violation be considered a material breach? Possibly. Should a parent be put on notice that willfully committing future violations of law may be grounds to find material breach? Definitely. The Fifth got this one right.

What will the Florida Senate’s Committee on Children and Families Discuss Tomorrow?

According to their meeting packet, the following should be interesting:

  1. SB 434’s changes to the IL Program (creating extended foster care for $0);
  2. SB 202’s changes to the Florida Safe Harbor Act (concerning sexual exploitation shelters);
  3. A presentation by the GAL Program (mostly concerning their new pilot on driving children [ed.: chauffeur ad litem?]); and
  4. OPPAGA’s review of the IL Program.

Included in the meeting packet are staff analyses for the bills and powerpoints for the presentations.

Ethical Issues in Child Representation (video)

A few months ago, the Florida Legal Needs of Children Committee put on a panel to discuss ethical issues in the representation of children. The video is here. I haven’t had a chance to review it fully yet, because it is LONG.
Chair of the Legal Needs of Children Committee, Alan Abramowitz, introducing panel.