Fourth DCA: Consent to 39.806(1)(c) is Consent to LRM

Though this isn’t as exciting as the Affordable Healthcare Act ruling, it’s at least a substantive dependency case, which we haven’t seen in what feels like forever. It’s been a very quiet summer. Thank goodness for the Fourth DCA who this week adopted the Second DCA’s reasoning from In re G.M., holding that an implied consent under 39.806(1)(c) is an implied consent that termination is the least restrictive means to protect the child.

We agree with the Second District’s holding in G.M. In this case, by failing to appear at the advisory hearing, the mother gave constructive consent under section 39.801(3)(d) to the termination of her parental rights. The petition for termination of parental rights specifically alleged that the mother’s continuing involvement in the parent-child relationship threatened the life, safety, or well-being of the child irrespective of the provision for services. Accordingly, as in G.M., by acknowledging through her constructive consent that a case plan would be futile, the mother implicitly agreed that termination was the least restrictive means of protecting the child.

L.E. v. DCF, — So.3d —-, 2012 WL 2401095 (Fla. 4th DCA 2012).

The Fourth goes on to say that the provision of a case plan which the mother didn’t comply with is also evidence supporting LRM. That evidence presumably came from the consent under 39.806(1)(e), which therefore creates another auto-LRM ground.

Thanks Fourth–everyone can return to their beach chairs now.

Juvenile LWOP Unconstitutional

Is the imposition of a life-without-parole sentence on a fourteen-year-old child convicted of homicide a violation of the prohibition against cruel and unusual punishment under the Eighth and Fourteenth Amendments when the child did not personally engage in any physical violence toward the victim and when the sentence resulted from a mandatory sentencing scheme?

In a moment of judicial sanity, the Supreme Court in an unsurprising 5-4 breakdown held that life for juvenile offenders without the possibility of parole was unconstitutional. Jackson v. Hobbs.

Case Law Review: Defaults, One-Parent Findings, Swahili Consents to Adoption, Paternity Standing, and TPRs for Chronic Mental Illness

(1) You can only default at an advisory or trial, not a pretrial or calendar call. J.E. v. DCF, — So.3d —-, 2012 WL 1889781 (Fla. 2nd DCA) (haven’t we learned this by now?).

(2) In M.W. v. DCF, — So.3d —-, 2012 WL 1889783 (Fla. 2nd DCA) (so close), the mother and father were TPR’d. The mother’s case was Jimenez’ed, and the father’s TPR was reversed on appeal. The mother then made a motion to set aside her TPR for failure to make one-parent findings under 39.811. She may have been onto something there, except that the father surrendered during the pendency of her appeal, rendering it moot.

(3) Obtaining a consent to adoption in a language the mother does not speak is sufficient allegation to warrant a full evidentiary hearing for relief from adoption judgment. F.R. v. Adoption of Baby Boy Born November 2, 2010, — So.3d —-, 2012 WL 1813520 (Fla. 1st DCA) (

(4) Paternity case facts:

  • Mother’s husband: not on the birth certificate, not claiming the child, surrendered his rights
  • (Purported) biological father: claims a relationship and wants rights
  • Mother: previously surrendered her rights, objects to bio-father’s standing
  • Custodians: foster parents who want to adopt
  • Others: DCF and GAL who support the bio-father’s right to assert paternity

The trial court denied the bio-father a hearing to establish his standing. The Fourth DCA reversed. J.T.J. v. N.H., — So.3d —-, 2012 WL 1108514 (Fla. 4th DCA).

(5) Eight years of schizophrenia treatment noncompliance is sufficient for an expedited TPR under 39.806(1)(c). D.B. v. DCF, — So.3d —-, 2012 WL 1934602 (Fla. 4th DCA).

(6) I’m choosing not to link to the case that reverses a permanent guardianship order for lack of appropriate notice to the parent because after about 90 appellate cases stating that exact legal point it’s just embarrassing for everyone involved.

Miami-Dade Appointed Counsel Fees in Dependency and TPR

In the midst of the very public debate and discussion over the Limited Registry for court appointed counsel, one of my three readers has forwarded this records request from the JAC: the 2010-11, 2011-12 fees paid to dependency attorneys in Miami-Dade County (including dependency, TPR, and appeals). I have redacted the names and replaced them with letter designations. I release it here without comment.