Retroactivity and 39.806(1)(l)

In re A.R.
— So.3d —-, 2012 WL 3709010
Fla.App. 2 Dist.,2012.
August 29, 2012 (Approx. 2 pages)

We review de novo the trial court’s interpretation of section 39.806(1)( l ), and we conclude that the trial court erred as a matter of law in determining that it was precluded from considering out-of-home placements that preceded the effective date of the statute. Here, the most recent out-of-home placement which triggered the Department’s termination petition occurred after the enactment of section 39.806(1)( l ). And because the pivotal removal occurred after the effective date of July 1, 2008, a consideration of out-of-home placements predating the statute does not constitute retroactive application of the statute. The plain language of section 39.806(1)( l ) permits the trial court to consider the history of prior out-of-home placements, and it does not preclude a consideration of out-of-home placements predating the effective date of the statute.

Like other statutory provisions recognizing the danger posed by repetitive bad behavior, section 39.806(1)( l ) was designed to protect children when parents continually engage in conduct warranting out-of-home placement…. [And] there is nothing improper, retroactive, or violative of [a parent’s] rights in the [l]egislature’s decision to authorize the courts to consider additional factors when making termination of parental rights decisions. [Note: quoting Judge Hawkes in

This TPR ground has so many problems with it, but at least one of them now has an answer: as long as one of the removals happened after July 1, 2008, there’s no question of retroactivity.


Third DCA Sends Ineffective Assistance Case Back to Trial Court

The case is T.H. v. DCF. From the opinion, it appears that one Al Guffanti, Esq., appellate attorney for the father, raised ineffective assistance of counsel in the direct appeal. It’s not clear from the opinion what the grounds for that were. There must have been something there, though, because instead of ignoring it outright, the Third kicked the issue back down for proceedings before the lower court judge, Senior Judge Steven D. Robinson. You could not ask for a more thoughtful judge to handle it.

Ineffective assistance claims in TPR cases are controversial, to say the least. (Some Florida cases have suggested/held/emphatically hoped that there is no such thing.) Proponents say that it’s the best way to guarantee the procedural and constitutional rights of parents. It probably is. Opponents say that it will drag out TPR cases and delay permanency (i.e., one form of permanency, which is adoption). It probably will. The tension in dependency has always been better outcomes versus faster ones. The trick will be balancing those two competing interests in a constitutionally comfortable way.

I was the GAL Program’s TPR attorney in Miami for a while. I saw a wide range of attorneys sitting across the table from me. In almost every case, I was impressed by their zeal and competence. There were a few times, however, when I scratched my head at what I was seeing. I cannot say that any case would have come out differently if a different attorney had tried it, but I can say that I sometimes had my concerns.

Where the constitution mandates counsel, it has always mandated minimally competent counsel. It’s not outside the realm of imagination to craft a procedure that allows a parent to challenge their attorney’s performance in limited contexts. And it’s certainly possible to expedite that procedure within the current framework. Appeals already add 3-7 months to TPR cases–so build a cut-off into that: an extra few weeks to preserve an IAC claim is not that much overhead. Perhaps this will result in better outcomes. Our outcomes certainly aren’t fast as it stands.

Crispell v. DCF: CHS Not Entitled to 11th Amendment Immunity

I haven’t discussed the Crispell litigation here before, so first a quick overview. Since the litigation is still in the pleadings stages, the following are all allegations from the public pleadings. The Crispells, adoptive parents and former foster parents, are suing DCF, CHS, and various other state actors for placing their now-adoptive child, TMC, in crisis nursery with another child who sexually abused TMC. The other child had a known risk of sexual assault of a child. The Crispells also brought allegations that DCF attempted to wrongfully thwart their adoption and that they were wrongfully arrested and prosecuted for false allegations of leaving the children in a car.

On February 24, 2012, Judge James Moody, Middle District (Tampa), dismissed various claims against DCF, SFYMCA, and Carl Weinrich, concerning those entities’ alleged interference with Plaintiff’s adoption of the children. Various other claims for false imprisonment and wrongful prosecution were also dismissed. A claim against CHS, however, survived for placing the child TMC negligently.

On August 20, 2012, Judge Moody ruled on CHS’s motion to dismiss the Second Amended Complaint. Judge Moody found that CHS is a state actor for the purposes of section 1983, but is not protected by Eleventh Amendment immunity.

CHSF’s function and characteristics as determined by state law governs its legal posture under the Eleventh Amendment. Brown v. E. Cent. Health Dist., 752 F.2d 615, 617 (11th Cir.1985) (citing Mount Healthy City Sch. Dist. v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977)). First, CHSF is not an entity created by state law because foster care services in Florida are statutorily “outsourced” to “private nonprofit agenc[ies]” that work with the Department of Children and Families. See Fla. Stat. § § 409.1671(1)(a), (b) (2010). These agencies are not created by or wholly run by the state. Therefore, CHSF is more like an independent political subdivision than an arm of the state.

Alternatively, a private entity may be an arm of the state if any recovery of damages would come from the state treasury. Brown, 752 F.2d at 617; see also Edelman, 415 U.S. at 663, 94 S.Ct. at 1355. Receiving significant amounts of money from the state or receiving guidance from a state agency is not enough to show that a private entity is an arm of the state. Mount Healthy, 429 U.S. at 280, 97 S.Ct. at 572–73, 50 L.Ed.2d 471.

CHSF has not demonstrated that it is an arm of the state and, therefore, is not entitled to immunity under the Eleventh Amendment. Accordingly, CHSF’s motion is denied on this issue.

The negligence claim therefore survived. The 1983 claim ran into trouble due to lack of detailed pleading surrounding the policies and customs of CHS that resulted in the abusive placement. Plaintiffs have 20 days to replead those allegations.

Stay tuned…



Thoughts on FINR: Let’s Bring Them Home

By this time the allegations of abuse at the Florida Institute of Neurologic Rehabilitation should be well known to anyone reading this blog. If not, read here and here. Bloomberg somehow got the scoop on the locals and reported years of criminal, civil, and regulatory investigations of the place, including deaths, two pending criminal charges, and a log jam of bureaucratic self-declared impotence. DCF, ACHA, and DOH allegedly all threw up their hands for lack of jurisdiction and the allegations of abuse continued. However, the news report somehow conferred jurisdiction, because a week after the Bloomberg piece was published, DCF, ACHA and DOH linked arms and conducted a surprise joint inspection of the facility. The results of that inspection are pending.

This story is relevant to this blog because it is common knowledge that foster kids with traumatic brain injuries have been placed in FINR. It’s also common knowledge that there is a double-standard when it comes to institutional placements: a relative with verified findings of abuse and death of people in their care would likely never get custody of a child.

There’s also an emerging realization that in cases of institutional abuse it is not enough to point to children who were not abused as evidence that the institution is safe. If that were true Sandusky would still be free. In institutions, you have to monitor the personnel, the policies, the training, the culture, and everything else. It is also not enough that the floors are clean and the lights work. The question is whether the facility is a positive and empowering place for the people who are placed there. Surprise inspections cannot take that temperature. Monitors need a presence at the institution, and they need to be rotated frequently so that relationships and familiarity do not overpower their role as watchdogs.

We should, however, be asking ourselves whether FINR is right for our kids at all. Despite FINR’s supposed stated-of-the-art care, it represents what is supposed to be the disfavored treatment of the disabled. Institutionalization. The clear legal and moral mandate is that people who can be integrated into the community should be. You see it in Olmstead claims, the Baker Act, and SIPP law.  In the community there are opportunities to grow, to have relationships not based on disability, to experience a full life. Of equal importance, in the community there are more eyes, more people to speak out when things are not right. At FINR, the only thing for miles are staff and trees. Trips to Target are not integration.

I want to hope and believe that none of the abuse alleged on the adult wing of FINR has ever occurred on the children’s wing. Sadly my time in child welfare tells me that is not where assumptions should begin. I’m told by people who had good experiences with FINR that it does a wonderful job with its patients, but those people were families who visited and supported and cared for loved ones–they were their own watchdogs. Foster children do not have that level of support. Moreover, I’ve never been told that what FINR does can’t be recreated in smaller community settings if the funding and desire were there. Instead of chasing allegations, it’s time to step back and ask ourselves what kind of life we want for foster kids with traumatic brain injuries. The nicest hospital in the world is still a hospital. I think it’s time to bring those kids home.