How will the Third DCA Handle 39.507(7)?

Someone once asked the GAL Program whether it ever takes a position on appeal contrary to DCF’s. Here’s one of those cases. Ignore the technical difficulties–you wouldn’t believe what I went through to get this recording. 

Court: Florida Third District Court of Appeal

Judges: Ramirez, Salter, Schwartz

Attorneys: Ilene Herscher for Father D.A.; Karla Perkins for DCF (conceding error); Hillary Kambour for the GAL Program.

Issues: whether the 3rd DCA will follow P.S. v. DCF, 4 So.3d 719 (Fla. 5th DCA 2009) (holding that finding of prospective abuse, abandonemnt, or neglect is not sufficient under 39.507(7)); whether there was sufficient evidence of imminent risk of harm.

Quotes: “DCF doesn’t confess error when error is emblazoned on the face of the record. In this case they confessed error when it doesn’t seem to be correct.” -J. Schwartz.

Prediction: Hard to say, since it’s a purely legal question. The Court appears clearly skeptical about the literal reading of 39.507(7), which sets a different standard of dependency for the second parent than for the first. If the Court avoids certifying conflict with the Fifth, it will likely be by first deciding that there is no practical effect: the child is still adjudicated dependent and both parents still must do services. They would then punt the question to a future case.

Why is that bad? Because that future case would likely involve: (1) the standard for reunification with the second, prospectively abusive parent when that parent has never been found to have “done anything wrong”, or (2) a blocked TPR under 39.806(1)(e) for the second parent for the same reason. The GAL Attorney’s comment is well taken that we don’t know the full effect of having a non-offending but potentially dangerous parent floating around a case. As a matter of judicial policy, the stakes are very high in both of those scenarios–a possibly dangerous reunification and a failed TPR that will result in extensively or indefinitely delayed permanency. This would appear to counsel risking a Supreme Court reversal now rather than waiting on the effects to work themselves out and come again before the Court.

3 Replies to “How will the Third DCA Handle 39.507(7)?”

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