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.

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