Second DCA: Grandparent Standing and Limiting the Keeping Children Safe Act

Chief Judge Morris Silberman - Florida 2nd DCA

Section 39.01(51), Florida Statutes (2010), defines “party” to include “the petitioner.” Because the grandparents are petitioners in the trial court, they are not “essentially” parties, they are parties. Thus, we determine that they have standing to challenge the order. In addition, the effect of the order is to prohibit the grandfather from living with his wife, which affects his legal rights.

Reading subsection (2) on legislative intent as a whole with the remainder of section 39.0139 supports the conclusion that the Act is intended to apply to children who have been sexually abused or exploited. Based on the legislature’s express statement of intent to protect and reduce the risk of further harm to children who have been sexually abused or exploited, it appears that the Act does not apply to S.C. Thus, the trial court applied the incorrect law, thereby departing from the essential requirements of the law in ordering that the grandfather have no contact with his grandson based on the Act.

In re S.C., — So.3d —-, 2012 WL 246466 (Fla. 2nd DCA 2012) (January 27, 2012).

Grandparents and foster parents have been trying to get standing in dependency cases for a long time. They’ve been limited, however, by the definition of “a party” in Chapter 39, which explicitly does not include them. This is the stepping stone case that they’ve been waiting for: to get standing, they have to be petitioners.  The next step will be to join the Department’s petition as a private petitioner and see what happens. It will be interesting to see if future courts read the “affects his legal rights” language to be an implicit requirement of “some additional standing” that the court seems to have dismissed two sentences earlier.

The KCSA ruling is not surprising. Despite the Act’s good intentions, it tends to wreak havoc on justice, and for a while it was considered patently unconstitutional by everyone who read it.

D.M. v. DCF (Fla. 3rd DCA) (argued January 25, 2012)

This is a different D.M. than I posted last week. There’s a clear affirmance of TPR coming here. 

Court: Florida Third District Court of Appeal

Judges: Lagoa, Fernandez, Schwartz

Attorneys: Sandford Rockowitz for the Mother; Hillary Kambour for the GAL Program; Karla Perkins for DCF (joining GAL Program’s oral argument).

Issues: whether there was competent and substantial evidence to support TPR; whether the facts support a one-parent TPR.

Quote: “In these cases we’re not trying the DCF, much less the Guardian ad Litem. We’re trying the interests of the child.” – Judge Schwartz.

Outcome: Per curiam affirmed on February 8, 2012.

D.M. v. DCF (Fla. 3rd DCA 2012)

Well this is a definite reversal for the mother. 

Court: Florida Third District Court of Appeal

Judges: Ramirez, Suarez, Rothenberg

Attorneys: Kevin Colbert for the Mother, Denis Burger for the Father, FIU College of Law Family and Child Advocacy Clinic for minor child A.M.; Hillary Kambour for the GAL Program, Karla Perkins for DCF, another AAL for the minor child M.M.

Issue: whether the mother received sufficient services and time; whether there was evidence to show the mother presented a continuing threat of harm (i.e., that she was still in a relationship with the violent father); whether the father received appropriate services; whether the GAL Program had a conflict of interest requiring reversal; whether the trial court properly considered the child A.M.’s wishes.

Outcome: TPR affirmed for Father, reversed for Mother. D.M. v. Dep’t of Children and Family Servs., — So.3d —-, 2012 WL 280750 (Fla. 3rd DCA 2012).

Florida Independent Living Bill Now in House’s Hands

Done! SB 434 is already in messages with the House. The amendments in the Senate were as follows:

  • explicitly made DCF guardian of the person of a child in its custody
  • updated the legislative purpose
  • required a plan for health care coordination and “connection to a positive adult”
  • removed $25 minimum for RTI
  • extended adoption assistance through age 20 for adoptive parents of kids in school
  • clarified that kids eligible for Medicaid are not to be enrolled in Kid Care

Psychotropic Medication Bills Filed

Psychotropic Medication bills, HB 1405 and SB 1808 and have been filed in the House and the Senate. Running the bills through DiffPDF, it appears they are substantially the same as SB 2718 and HB 1567, which were filed in 2010, with some cosmetic changes. For example, both the House and the Senate bills still have the same likely typos in them that I spotted in 2010.

I wrote some off-the-cuff analyses of those bills in four parts back then:

  1. Florida SB 2718 Introduces Mental Health Treatment Plans and Cost Effective MDT Model 
  2. SB 2718 on Psychotropic Medications: Moving Discretion, Removing Discretion 
  3. SB 2718 on Psychotropic Medications: Consent and Assent 
  4. SB 2718 on Psychotropic Medications: Setting Standards 

I don’t know how much of the above I still stand by, so don’t hold me to it.

Recall that in 2010 the bills allegedly died due to push-back from doctors who wanted less paperwork/didn’t want to be conscripted into the case planning element of dependency/etc. If this is true, it was a failure of public education. The bills as far as I can see do not add any new requirements on doctors beyond what they already do: see children and write a report explaining their treatment plans for the court to review.

What’s new is that this bill elevates the doctor’s treatment plan to case plan status, where the Department is then obligated to implement that plan as they would any service provided to a parent. From the physician’s perspective of having the child’s well-being foremost in their mind and having healthy skepticism about the Department’s ability or willingness to follow through with treatment recommendations, this is an important and powerful tool to improve the care of children in the system.

Over the last couple of years, the Department has promulgated administrative rules to cover psychotropic medication and we learned a great deal through that process. I think the 2010 bills were good but could be made even better. I look forward to seeing what can be accomplished.

HB 1163 on Adoption

HB 1163 on Adoptions was filed, introduced, and referred to several committees this month. Some of the changes are subtle, some are ambitious. They include:

  • explicit procedures for creation and enforcement of continuing contact orders and agreements (“open adoption”)
  • an additional class of men whose consent is required for the adoption, namely the man whose name appears on the birth certificate
  • requirement of personal appearance at adoption hearings to avoid a default or implied consent
  • limitations on the availability of DNA/HLA tests in certain situations (and a requirement that the man claiming paternity pay for it, regardless of who requests the test)
  • changes to the private adoption bypass of dependency proceedings.

Over the next few weeks I’ll go through what I like, what I don’t like, and what I think will cause chaos and confusion. Stay tuned.

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

Court: Florida Third District Court of Appeal

Judges: Shepherd, Cortinas, Lagoa

Attorneys: Thomas Butler for the mother; Hillary Kambour for GAL Program; Karla Perkins for DCF (joining GAL’s OA)

Issue: Whether the evidence established that termination of the mother’s rights was the least restrictive means; whether the trial court’s order made sufficient findings of least restrictive means; whether mother has a right to confrontation; whether alleged evidence errors constituted an unfair trial.

Outcome: Per curiam affirmed January 25, 2012.