Public listing of state employee salaries

Search for any Florida state employee’s salary here. It doesn’t include the myriad of government folks who get paid by counties, grants, private organizations, etc.

(Note: GAL Program salaries are lumped under the JAC.)

Judge Griffin in the Fifth: 39.806(1)(j) Makes No Sense

Judge Griffin dissented in part from a TPR appeal to point out the lunacy of section 39.806(1)(j):

I am unable to concur in the decision to remand for removal of the termination under Section 39.806(1)(j), Florida Statutes (2011). That section was added to the list of grounds for termination of parental rights in 2008, and, even though substance abuse is a primary cause of parental failure in this state, there have been no reported cases under this subsection. This is not surprising, given that it doesn’t make a lot of sense. This ground for termination provides:

(j) The parent or parents have a history of extensive, abusive, and chronic use of alcohol or a controlled substance which renders them incapable of caring for the child, and have refused or failed to complete available treatment for such use during the 3–year period immediately preceding the filing of the petition for termination of parental rights.

So … looking backward for a period of three years from the date of filing the petition for termination of parental rights based on a parent’s “extensive, abusive and chronic use of alcohol or a controlled substance that renders them incapable of caring for the child,” this ground is not available unless, during that time period, the parent has either refused treatment or failed to complete “available” treatment. Seemingly, as the statute is written, if in May 2012 the Department of Children and Families files a termination of parental rights petition against a parent whose extensive, abusive and chronic drug abuse makes them incapable of caring for their child, the court is powerless to terminate parental rights if, at some point, in the preceding three years, the parent had “completed” an “available” treatment. It will not matter that the parent relapsed and has remained a barely functioning addict and a failed parent ever since. The trial court thought this made no sense.

I think I will stand with the trial judge on this one. It is understandable that a parent should not face termination of their parental rights due to addiction to alcohol or drugs unless they have, in the recent past, been offered access to treatment, but why would it matter whether the treatment were refused, completed or left incomplete if the parent remains incapable of caring for their child? What matters is that treatment was made available, and the parent remains incapable of caring for their child.

9th Circuit Rules CAPTA GAL Requirement Not Privately Enforceable

As the district court observed, Nevada does have a law directing state courts to appoint a guardian ad litem for every eligible child. See Nev. Rev. Stat. § 432B.500(1) (“After a petition is filed that a child is in need of protection . . . the court shall appoint a guardian ad litem for the child.”). But courts do not always order these appointments, because Clark County does not have enough guardian ad litem volunteers. See Nev. Rev. Stat. § 432B.500(2) (“No compensation may be allowed a person serving as a guardian ad litem pursuant to this section.”). Plaintiffs thus seek an injunction compelling the State and County defendants to “make it possible for state courts to appoint a guardian ad litem in every case.” The district court held that the guardian ad litem provision of CAPTA was not privately enforceable and that, in the alternative, abstention was warranted under the doctrine set forth in Younger v. Harris, 401 U.S. 37 (1971).

As best we can tell, no court has specifically addressed whether the guardian ad litem provision of CAPTA is enforceable through § 1983, and no federal appellate court has considered whether any provision of the current version of CAPTA is privately enforceable. As a matter of first impression, we conclude that the guardian ad litem provision does not create an individual right enforceable through § 1983.

Henry A., et al., v. Michael Willden, et al., No. 10-17680 (May 4, 2012).

Happy Mothers Day!

This Mothers Day lets also remember that the parties are still briefing the Dual Maternity case in the Florida Supreme Court. The docket is here. My understanding is that the Answer Brief has been filed and will show up soon.

Second DCA En Banc Clarifies TPR Nexus Requirement, Concurrence Dissects LRM

The Second DCA issued an incredible en banc opinion yesterday, clarifying its nexus requirements for TPR of siblings. In re Z.C., — So.3d —-, 2012 WL 1605425 (Fla. 2nd DCA). Authored by Chief Judge Silberman (joined by seven other judges), the opinion holds:

DCF argues that the nexus test applied by this court is something different than the totality of the circumstances test the supreme court discussed in F.L. DCF points to the following language this court has repeatedly quoted and applied to determine what evidence would satisfy the nexus test: “ ‘Generally, this nexus is established when the parent has a mental or emotional condition that will continue, such as mental illness, drug addiction, or pedophilia, and which will make it highly probable that in the future the parent will abuse or neglect another child.’ “ A.D., 870 So.2d at 238 (quoting C.M.,844 So.2d at 766); see also T.L. v. Dep’t of Children & Family Servs., 990 So.2d 1267, 1272 (Fla. 2d DCA 2008); M.C. v. Dep’t of Children & Family Servs., 940 So.2d 571, 575 (Fla. 2d DCA 2006); G.R. v. Dep’t of Children & Family Servs., 937 So.2d 1257, 1262–63 (Fla. 2d DCA 2006); M .C. v. Dep’t of Children & Family Servs., 936 So.2d 764, 766 (Fla. 2d DCA 2006).
While this language suggests that certain evidence would satisfy the nexus test in dependency and termination cases, these cases do not require this specific type of evidence to meet the nexus test. InC.M., for example, this court relied on the absence of such evidence to reverse an adjudication of dependency as to a father’s biological children based primarily on an incident in which he struck his teenage stepdaughter during an argument. 844 So.2d at 765–67. However, the court did not reject the application of other circumstances in favor of such scientific evidence. There was simply insufficient evidence of any circumstances that established a substantial certainty that the father would similarly abuse his biological children.
Instead, these cases merely suggest circumstances that might be considered as part of the totality of the circumstances to satisfy the nexus test. We conclude that this court’s use of the term “nexus” is therefore consistent with the totality of the circumstances test described by the supreme court in F.L.

 

Are lawyers in the Second interpreting this as a softening of the previously hard-line nexus rule? That’s how I tend to read it.

Equally incredible is Judge Altenbernd’s dissection (in a special concurrence joined by five other judges) of the convoluted LRM jurisprudence that has developed since Padgett was first announced. Judge Altenbernd argues that LRM was never meant to be a case-by-case substantive due process requirement, but instead should be used to determine whether a particular termination ground is constitutional on its face. He admits, though, that his concurrence is more treatise than opinion and future work should be done “[i]f or when we can revisit this law without harming children or disrupting families.”

In my experience, LRM has become the last bucket in which to pour your gut instinct when a TPR simply doesn’t feel right. It otherwise provides nothing that’s not contained statutorily in Chapter 39. It will be interesting to see if courts take up the challenge to use LRM more carefully, consistently, and narrowly in the future.

Interesting Law Review Articles on Child Welfare

I’m about a year behind on law reviews, but here are some recent articles of interest. I’ll get to my backlog later.

Sedating Forgotten Children: How Unnecessary Psychotropic Medication Endangers Foster Children’s Rights and Health 
Matthew M. Cummings
32 B.C. J.L. & Soc. Just. 357
Boston College Journal of Law & Social Justice
Spring, 2012
Note
A Family Law Perspective on Parental Incarceration
Sarah Abramowicz
50 Fam. Ct. Rev. 228
Family Court Review
April, 2012
Article
Let’s Go to the Videotape: Why the Forensic Interviews of Children in Child Protective Cases Should Be Video Recorded
Orly Berte
50 Fam. Ct. Rev. 344
Family Court Review
April, 2012
Student Note

One Reason I Teach

Thanks XKCD…

[alt text = “saying ‘what kind of idiot doesn’t know about the Yellowstone supervolcano’ is so much more boring than telling someone about the Yellowstone supervolcano for the first time.”]

Same with the law. I get a warm feeling in my heart the first time a student hears a judge scream “I know what the law is!” while doing the obviously illegal thing, or the first time a student hears a professional witness blatantly lie under oath, or the first time a student realizes how messy the world really is. It’s not Diet Coke and Mentos, but it can make your head explode.

SIJ Status Granted on Abandonment

These opinions can be difficult to find, so I’m copying the lengthy relevant language here:

Finally, USCIS will consent to a grant of SIJ classification upon a determination that the request is bona fide. See Section 101(a)(27)(J)(iii) of the Act; TVPRA – SIJ Provisions Memo at 3. The director questioned the juvenile court’s finding of abandonment based on evidence in the record that the petitioner’s mother resides in Omaha, the petitioner had listed her as his emergency contact on several official forms, and because “she is still active in [the petitioner’s] life.” Decision of the Director, at 3. On appeal, the petitioner contends that the record supports the juvenile court’s finding of parental abandonment. See Brief on Appeal, dated Dec. 15, 2010.

Here, the petitioner has shown by a preponderance of the evidence that he was abandoned by his parents, and that his request for SIJ classification is bona fide. Specifically, after conducting a hearing, the juvenile court determined that the petitioner had been abandoned by his mother. See Order for Appointment of Permanent Guardian. The court found that the petitioner’s mother had notice of the hearing, but that she failed to appear in court. Id. The court also found that the petitioner’s paternity has never been established, and that he has never had any contact with his father. Id.; see also Birth Certificate of [IDENTIFYING INFORMATION REDACTED BY AGENCY] (leaving blank name of the petitioner’s father). The petitioner presented testimony during his SIJ interview that his mother abandoned him when he was an infant, and that he lived with, and was raised by, his grandmother. See Form I-360. The petitioner further explained in his affidavit that although his mother has had sporadic contact with him, she has never taken care of him. Affidavit of [IDENTIFYING INFORMATION REDACTED BY AGENCY] The petitioner’s uncle states that the petitioner had been raised by his grandmother since infancy because his mother was too young to care for him, and because “she is not that kind of person who cares about family ties.” Affidavit of [IDENTIFYING INFORMATION REDACTED BY AGENCY] dated Dec. 6, 2010; see also Birth Certificate of [IDENTIFYING INFORMATION REDACTED BY AGENCY] (noting that the petitioner’s mother was 15 years old at the time of his birth). Further, the affidavits indicate that the petitioner’s mother has never shown an interest in being part of the petitioner’s life, and she did not try to help him after his grandmother’s death. Affidavit of [IDENTIFYING INFORMATION REDACTED BY AGENCY] Affidavit of [IDENTIFYING INFORMATION REDACTED BY AGENCY]

Although the record reflects that the petitioner’s mother has resided in Omaha and has used the petitioner’s address; that she once sent him a letter in March, 2010, while he was incarcerated; and that the petitioner twice listed his mother as a contact; these factors do not necessarily contradict a finding of parental abandonment in this case, or show that the juvenile court’s determination was uninformed. In sum, the preponderance of the evidence in the record supports the juvenile court’s finding of abandonment.

 

IN RE: [IDENTIFYING INFORMATION REDACTED BY AGENCY], 2011 WL 7790423 (INS).