Secretary Wilkins Fixes DCF, Goes to Disney World

The man in charge of the Florida Department of Children and Families has a new job to add to his current one and that’s raising some concerns.

Gov. Rick Scott is making David Wilkins Florida’s new Chief Operating Officer for Government Operations. Wilkins will take on that job and continue to serve as secretary of DCF – one of the largest and most critical agencies in state government.

Some child advocates are concerned two high-profile jobs will diminish Wilkins’ focus on the state’s child welfare system. The horrific case of Victor and Nubia Barahona last year revealed a terrible breakdown in DCF’s child protective system.

Wilkins believes those problems have been fixed and he has set the standard for making state government more efficient. He has reduced DCF’s administrative costs nearly $60 million and streamlined operations while adding front-line employees.

Wilkins downplays concerns about holding two jobs in the Scott administration, saying that’s how the private sector operates. He previously worked for Accenture Health, overseeing sales in 25 countries.

(via wtsp.com)

I wish this story were in The Onion so that I could feel better about laughing. Here, I’ll do it for them:

Child advocates worry that one year is not enough to finish the job of completely fixing everything wrong with the Department. COO/(secretary) Wilkins disagrees: “I don’t see what the big deal was all these decades. All DCF needed was a little dusting. Did you know there was a bag of papers in my office that nobody had even alphabetized? Once we got our heads around that problem, everything else kind of fell into place.”  When asked what he will be doing with all his free time now that DCF is a perfectly oiled machine that can run on autopilot in positive directions for families and children without anyone at all leading it, Secretary Wilkins responded that he will start work with the Florida Lottery Commission because, “I don’t like how all those little balls pop out in every which order.”

DCF certainly can’t be “fixed” in a year, and I’m worried about the message that this sends to everyone in DCF: your own secretary matters so little to your work that he’s going on to other things–be good while he’s away.

I don’t blame Secretary Wilkins for this–it was the Governor’s decision. Secretary Wilkins is a COO at heart. Business measures are his bottom line and he’s beyond just good at improving operational efficiencies. DCF, however, needs someone at its helm with a broad and forward-looking vision about child and family welfare. I encourage the Governor to find such a person and let Mr. Wilkins fully move on to working with other agencies who can benefit from his notable expertise.

Third DCA Rejects Fifth’s Interpretation of 39.507(7) – All Parents to be Treated Equally

Furthermore, we reject DCF’s confession of error based on the Fifth District’s holding in P.S. that section 39.507(7) of the Florida Statutes prohibits a supplemental adjudication of dependency based on prospective abuse or neglect. In P.S., as here, the mother consented to DCF’s petition for dependency and the trial court entered an order adjudicating the children dependent. The father, however, challenged the dependency and the trial court held an evidentiary hearing and entered a second adjudicatory order. P .S., 4 So.3d at 720. On appeal, the Fifth District held that at a subsequent evidentiary hearing of a second parent, actual harm and not a risk of harm must be found. Id. at 721. We disagree.

D.A. v. Department of Children and Family Services, — So.3d —-, 2012 WL 1020012 (Fla. 3rd DCA 2012).

I’m going to chalk this up as a “called it”, even though I wasn’t entirely confident in my predictions. In a two-to-one opinion, the Third has rejected the Fifth’s interpretation of 39.507(7), stating, “the [Fifth’s] interpretation adds the word “actual” [abuse, abandonment, or neglect] which is not in the statute.” There is some discussion of policy (“requiring a finding of actual harm as to the second parent hinders, rather than advances, the purpose behind the statutory prohibition against more than one dependency adjudication”) and Equal Protection (“the Fifth District’s reading of the statute calls for application of two different standards as to each parent for no apparent rationale”), but those seem to be dicta.

In somewhat of a surprise, Judge Schwartz, in dissent, sides with DCF and the Fifth DCA. He points to the recent Fifth DCA case of D.G. v. DCF (I discuss it here), which adds nothing to the original P.S. decision except the sentence: “On remand, the trial court is not without options. See J.P. v. Dep’t of Children & Families, 855 So.2d 175 (Fla. 5th DCA 2003); B.C. v. Dep’t of Children & Families, 864 So.2d 486 (Fla. 5th DCA 2004).” I presume this means Judge Schwartz would have the court order the non-offending parent to participate in services anyway. I cannot say this is an inherently unreasonable interpretation–however, as pointed out by the GAL Program attorney at OA, it is fraught with unknowns that could delay permanency down the road.

There’s no explicit certification of conflict with the Fifth, but it looks like one to me. I can imagine a possible world where the Third thought this statute was just poorly drafted (it was) and it wasn’t going to put forth a lot of effort to fix it–let the Supreme Court or Legislature iron it out if they so choose. In the Third DCA, at least for a while, there is only one order of adjudication and all parents are judged by the same rules.

Fifth DCA Says No Written Interrogatories in Dependency Cases

Petitioner correctly contends that discovery in juvenile proceedings is governed by rule 8.245 and that the discovery tools authorized are limited. The rule permits production of documents and things for inspection and other purposes [rule 8.245(d) ], production of documents and things without deposition [rule 8.245(e) ] and depositions [rule 8.245(g) ]. The juvenile rules do allow for the use of written interrogatories for “Perpetuating Testimony Before Action or Pending Appeal.” See Fla. R. Juv. P. 8.245(h)(1)(C). That rule does not apply in these circumstances, however, and there is no other authority for the use of interrogatories in dependency cases. Because no rule authorizes their use, there is also no rule regulating their use. To refuse to disallow the use of interrogatories by K.D. was a material departure from the essential requirements of law.

Department of Children And Families v. K.D., — So.3d —-, 2012 WL 967657 (Fla. 5th DCA 2012).

Hopefully this will result in a Juvenile Rule change. I can think of no good reason why interrogatories would be disallowed in Dependency cases, especially where one of the parties is a giant, multi-level organization with sometimes up to a hundred people working on any given case (case managers, transportation workers, secretaries, interns, IT staff, administrators, et al., etc. for each lead organization and each CBC and contracted service provider below them). And even more especially where time is of such an essence that setting depositions for every inquiry could delay proceedings needlessly.

It’s also notable that this was a hearing to review denial of RTI. Had K.D. pursued a fair hearing instead of circuit court review, interrogatories would have been available. See FAC 65-2.057(6) (“To the extent that the rules of discovery in the Florida Rules of Civil Procedure are not inconsistent with Chapter 120 F.S., the rules of discovery of the Florida Rules of Civil Procedure shall be applicable. The Hearings Officer may issue appropriate orders to effectuate the purposes ofdiscovery and to prevent delay”); § 120.57(1)(h), Fla. Stat. (2011) (allowing summary judgment on responses to interrogatories). You should not have to give up discovery just to pursue certain claims.

I would like a court to address the argument that the circuit court, in cases such as these, is not presiding over a dependency case at all, but is actually sitting in review of an agency decision under chapter 120. I’m not sure if that was argued below. In the future it might be wise to file a separate petition for review of agency action citing both section 120 and the extended jurisdiction statute.

Third DCA Says that DCF Can’t Penalize RTI Recipients for Changing School Programs

The Department’s interpretation of these provisions in connection with the renewal of Ms. Enich’s stipend altered the plain meaning of the statute. See Bennett v. St. Vincent’s Med. Ctr., Inc., 71 So. 2d 828, 841 (Fla. 2011). The Department imposed a more stringent set of requirements upon Enich than the statute actually requires. In concluding that “[Enich] did not show proof of academic progress during the period of November 2009 through May 2010[,]” the Department required Ms. Enich to have made continuous progress during that time period, while at the same time overlooking the progress Enich made from May 2010 to the present date. A shift from unsuccessful academic efforts to successful vocational training may have been an appropriate choice by Ms. Enich after consultation with her guardian ad litem and independent living caseworker.

Enich v. DCF, — So.3d —- (Fla. 3rd DCA 2012). 

This is a huge case in the world of Road-to-Independence. The Department has previously called the decision to change programs “school shopping,” and would have kids lock themselves into failure at a school that’s over their head. The Third disagrees, saying that changing programs may be a reasonable way to restore progress.

“The Department’s position amounted to nothing more than parroted statutory phrases”

But even if the circuit court’s characterization were accurate, it could not serve as a legal basis for terminating N.F.’s parental rights. As mentioned, simply failing to complete a case plan, as such, is not ground for terminating parental rights. Rather, evidence of neglect or abuse can only be based on a failure to “substantially comply,” i.e., fail in a case plan task that bears on the circumstances that caused the creation of the plan. Here, that circumstance was N.F.’s failure to make arrangements for her daughter’s care when she was arrested. There was no allegation or evidence that N.F. had a substance abuse problem, let alone one that endangered her daughter’s safety or well-being. See R.F., 22 So.3d at 653 (reversing termination of parental rights on ground of parents’ continuing drug abuse in absence of showing that drug use harmed children); M.H. v. Dep’t of Children & Families, 866 So.2d 220, 222 (Fla. 1st DCA 2004) (same). Therefore, the court’s implication that N.F. had not complied with mandatory drug screenings, even if true, could not legally support a termination of her parental rights.

In short, the Department’s position amounted to nothing more than parroted statutory phrases and bald incantations of buzz words. Such conclusory assertions, devoid of factual support, were not competent substantial evidence—let alone clear and convincing evidence—of anything.

N.F. v. DCF, — So.3d —-, 2012 WL 881612 (Fla. 2nd DCA 2012).

I’ve heard of shotgun weddings. The court seems to believe this was a shotgun TPR.

Dependency Plea Vacated Based on Permanency Goal Bait-and-Switch

As a general rule, a party who receives notice of a disposition hearing will be found to have notice that the trial court may consider any and all disposition options authorized by law. However, in the instant case, the consent plea form recited that the plea was entered based on the understanding that the trial court would accept a case plan having a goal of reunification. There was no suggestion during the plea colloquy that the trial court would consider any other disposition option. While the mother was on notice that the trial court had the authority to reject the proposed case plan, she was not on notice that her consent plea could result in the immediate and permanent placement of the child with the father.

J.G., v. Department of Children and Families, — So.3d —-, 2012 WL 874569 (Fla. 5th DCA 2012).

Due Process 101: Don’t make promises you don’t intend to keep. I suggest a plea colloquy that sounds something like this:

State, has there been an agreement regarding the goal of the case plan? No? Ok…

[To the parent] Upon acceptance of your plea by this Court, the Department will develop and file a case plan with tasks it believes will help you be a better parent. The goal of that case plan will be determined at a disposition hearing in a couple of weeks.  The possible goals are reunification with you, adoption, closing the case with a permanent guardianship or relative, or leaving the child in long-term foster care. Those goals are things we will work toward–we’ll write them in the case plan, but they won’t happen immediately at the disposition hearing. We could, however, immediately close the case with the child in the custody of the non-offending parent, and you would have visitation.

The decision is up to the Court. At the disposition hearing you will be allowed to present any relevant evidence you have about what the goal of the case plan should be and whether we should keep the case open further. Do you understand?

Most cases will stop at “State, has there been an agreement on the goal?”

Third DCA Silent on GAL Replacement

In KRL v. DCF,  the GAL Program replaced a volunteer GAL who objected to TPR for a staff GAL who supported it.  The issue was live at OA; but, in the written opinion, the Third DCA is silent about the substitution except for a footnote pointing out that GAL #2 had never seen the mother with the child.

This seems right to me. The GAL Program is appointed as an organization to represent the child’s best interests, and it can assign whoever it wants to work the cases (separation of powers and all). The risk of substitution is that the replaced GAL will become a defense witness and the trial court will be skeptical of the substituted GAL’s opinion. For me that’s a question of trial tactics and volunteer recruitment politics, not law.

[Edit…]

As for the substance of the case, it’s basically a road map to defending a failure-to-protect expedited TPR, in four easy steps:

  1. Create the appearance of culpability in someone else.
  2. Get a doctor to say that the injuries were non-obvious.
  3. Get a psychiatrist/psychologist to say that the non-abusive parent isn’t a direct risk.
  4. Create the appearance that the allegedly abusive parent is out-of-the-picture for good.

Who Pays for Expert Depos in TPR Cases?

This case presents this question: As between two agencies funded by state government, which should bear the responsibility for an expert witness fee incurred in a deposition taken in a termination of parental rights proceeding? In the absence of any statutory direction, we hold that the Florida Rules of Juvenile and Civil Procedure apply to make the agency seeking the deposition responsible for payment.

Dr. Philip Colaizzao, M.D. v. Office of Criminal Conflict and Civil Regional Counsel, — So.3d —-, 2012 WL 832629 (Fla. 4th DCA 2012). 

You pay. The court notes, however, in a footnote, that if an executive director of CPT is a state employee, then maybe things are different. Judicial restraint in action, the doctor gets paid this time.

Can you Seek TPR of Some Siblings but not Others under LRM? Yes.

In challenging the final judgment terminating her rights, appellant mother claims that the trial court’s finding that termination was the least restrictive means of protecting the child from harm, as required by Padgett v. Department of Health & Rehabilitative Services, 577 So. 2d 565 (Fla. 1991), was not supported by competent substantial evidence. In particular, she claims that because the trial court did not terminate her rights to this child’s half-siblings, termination was not necessary to protect S.A. We disagree, as the trial court appropriately treated each child based upon her individual circumstances.

S.L. v. DCF, — So.3d —- (Fla. 4th DCA 2012).

Splitting sibling groups on a TPR petition (i.e., seeking termination for some siblings and not others) causes prosecutors no little anxiety. It’s good to receive some guidance that (1) it’s not an automatic non-starter under LRM, and (2) it should be done with great thought to each child’s individual circumstances.

First DCA Hammers DCF on Failure to Prove Harm

“[T]o support a finding of dependency, the parent’s harmful behavior must pose a present threat to the child based on current circumstances.” C.W. v. Dep’t of Children & Fams., 10 So.3d 136, 138 (Fla. 1st DCA 2009).“[I]n the absence of actual abuse, abandonment, or neglect, a finding of  dependency can be made if prospective abuse, abandonment, or neglect is shown to be imminent. J.B.M. v. Dep’t of Children & Fams., 870 So.2d 946, 951 (Fla. 1st DCA 2004) (citations omitted).“The terms ‘prospective’ and ‘imminent’ are not defined in the statute. ‘Prospective’ simply means likely to ‘happen,’ or ‘expected.’ ‘Imminent’ encompasses a narrower time frame and means ‘impending’ and ‘about to occur’.”E.M.A. v. Dep’t of Children & Fams., 795 So.2d 186 n. 3 (Fla. 1st DCA 2001) (internal citations omitted).

S.S. v DCF, — So.3d —-, 2012 WL 752034 (Fla.1st DCA 2012).

There’s no new law here. The court simply goes through and explains why it believes DCF failed to prove any harm from the mother’s substance abuse, domestic violence, (arguable) medical neglect, and psychiatric instability. It would be an amazing set of kids that really lived through all of that unscathed, but the First does not make presumptions of harm.