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?”

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