Third-Party Access to Dependency Records Got a Little Easier Yesterday

Plant City, being sued for wrongful death, sought access to the decedent child’s dependency records. The dependency court denied the request, balancing the child’s privacy against the city’s interests. Not right, says the Second DCA:

In this case, the dependency court abused its discretion by failing to apply the test established in section 39.0132(3). The statute does not require a third party seeking to inspect dependency court records to prove that its interest in doing so is compelling or that it outweighs the child’s privacy interest. When enacting the statute, the legislature has already weighed the interests at issue and determined that those with a “proper” interest in inspecting the records shall be permitted to do so. In the context of the statute as a whole, the test requires a third party seeking to inspect dependency court records to demonstrate that doing so will serve a legitimate and appropriate interest that differs from that of the public at large.

The City made such a showing here. It is the defendant in a wrongful death suit that seeks to recover damages on the child’s behalf. The child’s recovery may include damages for loss of support and services determined in part by her relationship with her mother, “lost parental companionship, instruction, and guidance[,] and for mental pain and suffering.” See § 768.21(1), (3), Fla. Stat. (2008). Certainly, the City has a legitimate, appropriate interest in discovering facts that will permit it to assess the damages claimed against it, for purposes of either defending itself or engaging in settlement negotiations.

In re J.B.
— So.3d —-, 2012 WL 5935665
Fla.App. 2 Dist.,2012.
November 28, 2012 (Approx. 3 pages)

 

On the Limited Role of State Courts in SIJ Applications

From the New York Family Court:

This Court would be remiss in not setting forth why it declines to follow the recent opinion of the Supreme Court of Nebraska in Erick M. which, were it binding upon this Court, would require that Mario’s application for special findings be denied.

Under the Nebraska Supreme Court’s interpretation of the SIJ provisions of the immigration statute, Mario would be unable to meet the reunification component under 8 USC § 1101(a)(27)(J) (Erick M . at 343). In the view of the Supreme Court, which was grounded upon its interpretation of administrative decisions made by the USCIS, the administrative agency “does not consider proof of one absent parent to be the end of the inquiry under the reunification component [and][a] petitioner must normally show that reunification with the other parent is also not feasible” (Id. at 350). Thus, “[i]f a juvenile lives with only one parent when a juvenile court enters a guardianship or dependency order, the reunification component under § 1101(a)(27)(a) is not satisfied if a petitioner fails to show that it is not feasible to return the juvenile to the parent who had custody” (id.).

The function of the juvenile court in deciding an application for special findings which would permit a juvenile to file an application for adjustment of status as a special immigrant juvenile is limited in scope. The juvenile court is simply called upon to determine whether, under state law, the juvenile is under the age of 21, unmarried, dependent upon the court through an order of placement or other court order, whether reunification with one or both of the juvenile’s parents is not possible due to abuse, neglect, or abandonment of the child, and whether it would be contrary to the juvenile’s best interest to be returned to his or her previous country of nationality.

The statute and regulation commit these specific and limited issues to state juvenile courts. The juvenile court need not determine any other issues, such as what the motivation of the juvenile in making application for the required findings might be (In the Interest of T.J., 59 So 3d 1187, 1191 [Fla Ct App 2011]; F.L.M. v. Department of Children and Families, 912 So 2d 1264, 1269 [Fla Ct App 2005]; L.T. v. Department of Children and Families, 48 So23d 928, 931 [Fla Ct App 2010] ); whether allowing a particular child to remain in the United States might someday pose some unknown threat to public safety (e.g., Shannon M. Ray, Note, The Breakdown of a System: The Consequence of Permitting Dangerous Illegal Juvenile Aliens to Reside in Your Community, 56 Wayne L Rev 819 [2010] ); and whether the USCIS, the federal administrative agency charged with enforcing the immigration laws, may or may not grant a particular application for adjustment of status as a SIJ.

In re Mario S.
2012 N.Y. Slip Op. 22336
N.Y.Fam.Ct. 2012. – November 21, 2012

An infinitely reasonable SIJ opinion.

More information: OA of Erick M; Full opinion of Erick M.

 

 

First DCA Still Requires Preservation of Sufficiency

J.F.S. appeals the termination of his parental rights. Because he failed to move for a judgment of dismissal after the presentation of the State’s evidence, or at any other time during the termination hearing, we affirm. K.J. ex rel. A.J. v. Dep’t of Children & Families, 33 So.3d 88, 89 (Fla. 1st DCA 2010); J.D. v. Dep’t of Children & Families, 825 So.2d 477 (Fla. 1st DCA 2002). We recognize, as we did in K.J.,that our holding requiring preservation of an evidentiary sufficiency issue under Florida Rule of Juvenile Procedure 8.525(h) conflicts with decision of the Fourth and Fifth District Courts of Appeal in R.P. v. Dep’t of Children & Families, 49 So.3d 339 (Fla. 5th DCA 2010) andH.D. v. Dep’t of Children & Families, 964 So.2d 818 (Fla. 4th DCA 2007). We certify conflict with these decisions.

J.F.S. v. Department of Children and Families
— So.3d —-, 2012 WL 5870730
Fla.App. 1 Dist.,2012

Let us remember that there “is no effective assistance of counsel” in dependency cases (yet) and then steep in the double injustice that occurs when a parent on appeal is so strictly bound to the failure of his trial attorney to utter one sentence in the course of a trial.

Concerns are not Evidence

In this case, the trial court was presented with evidence that the mother had substantially complied with the case plan, and the trial court appeared to accept that substantial compliance. Thus, there was a presumption of reunification. However, the trial court denied reunification based on the finding that returning the children to the mother would endanger their physical and mental well-being. This finding was based solely on the report of the children’s therapist and the opinions of the guardian ad litem and the state. This evidence is similar to the evidence this Court rejected in C.D., and, under C.D., this evidence does not meet the competent substantial evidence standard.

M.N. ex rel. N.N. v. Department of Children and Families
— So.3d —-, 2012 WL 5846288
Fla.App. 1 Dist.,2012.

Millions of Ame…

Millions of Americans with disabilities have gained innumerable rights and opportunities since Congress passed landmark legislation on their behalf in 1990. And yet advocates say barriers and bias still abound when it comes to one basic human right: To be a parent.

A Kansas City, Mo., couple had their daughter taken into custody by the state two days after her birth because both parents were blind. A Chicago mother, because she is quadriplegic, endured an 18-month legal battle to keep custody of her young son. A California woman paid an advance fee to an adoption agency, then was told she might be unfit to adopt because she has cerebral palsy.

Such cases are found nationwide, according to a new report by the National Council on Disability, an independent federal agency. The 445-page document is viewed by the disability-rights community as by far the most comprehensive ever on the topic – simultaneously an encyclopedic accounting of the status quo and an emotional plea for change.

http://www.huffingtonpost.com/2012/11/26/disabled-parents_n_2190725.html

 

childlaw.net: Be Careful When “Making Healthy Choices”

I will repost this in its short entirety.

Attorneys who represent youths, parents, and foster parents have reason to be concerned about a pamphlet recently published by the federal government’s Children’s Bureau. The pamphlet, “Making Healthy Choices,” is intended to advise youth in foster care about psychotropic medications and is being distributed nationwide in English and Spanish.

Unfortunately, the pamphlet encourages youths to fill out a checklist/questionnaire of crimes they may have committed and to list deficits in their personalities and character. The youths are encouraged to share the checklist/questionnaire information with people who have authority over them. We believe that the result will be stigmatization of youths and in some cases even arrests and convictions flowing from youths’ confessions to criminal acts.

We intend to ask the Children’s Bureau to withdraw or revise its pamphlet/questionnaire. Attorneys who may be interested in joining in this recall effort may request further information by sending an e-mail with the text “subscribe—Children’s Bureau pamphlet:” to eopton@youthlaw.org.

It took me several clicks to find the actual pamphlet, which is here. The offending page appears to be Page 5, which asks kids to confess in writing to acts of arson, animal cruelty, property destruction, drug use, and battery (to name a few). Extending the doctor-patient privilege to a checklist, which specifically says it is not for medical advice, may be a stretch, and would likely be waived when the child hands the paper to his case manager (who will then freak out and call the police). I would highly recommend advocates only let their kids fill out this form under the direction of a licensed physician or in consultation with an attorney.

SFGN.com: Fort Lauderdale Store Benefits LGBT Teens Transitioning out of Foster Care

Funky Flamingo 2nds Resale Shop in Fort Lauderdale will be celebrating its one-year anniversary with a sale called Christmas in the Tropics.

On the surface, Funky Flamingo 2nds may look like just another resale shop. … Yet, Funky Flamingo 2nds stands out in more significant ways.

All of the proceeds at Funky Flamingo 2nds go to benefit H.O.M.E.S., Inc., an organization that focuses on creating self-sufficiency and economic development for disadvantaged individuals and neighborhoods. H.O.M.E.S. assists with affordable homeownership, and also provides housing, job assistance and internships, particularly for youth who are transitioning out of foster care.  Youth also work at Funky Flamingo 2nds as part of the jobs program.  Without this assistance, many TIL Youth—Transitioning Independent Living Youth—would be more vulnerable to homelessness, drug abuse or crime.

It’s also important to note the number of LGBT youth within the foster care system.  According to a report by the National Center for Lesbian Rights (NCLR), studies estimate that between five and 10 percent of the 260,000 youth in foster care are LGBT.  “Because of homophobia and transphobia in their homes, schools, and social settings,” states the NCLR report. “LGBTQ youth enter the foster care system at a disproportionate rate.”

http://www.southfloridagaynews.com/news/local-news/7926-fort-lauderdale-store-benefits-lgbt-teens-transitioning-out-of-foster-care.html

Attention Dependency Attorneys: There is also a Chapter 49

Appellant challenges the final order terminating her parental rights. Although Appellant failed to personally appear at the final hearing after receiving prior verbal notice of the hearing via telephone, the hearing was held only 26 days after the date of first publication of the service of process by publication. Accordingly, the final order is REVERSED and REMANDED for further proceedings which comply with sections 39.801, 49.09 and 49.10, Florida Statutes, and with rule 8.505, Florida Rules of Juvenile Procedure. See J.M. v. Dep’t. of Children & Families, 833 So.2d 279 (Fla. 5th DCA 2002); In Interest of D. P., 595 So.2d 62 (Fla. 1st DCA 1991).

J.P. v. Florida Dept. of Children & Families, — So.3d —-, 2012 WL 5480990 (Fla. 1st DCA 2012)

Without knowing a single thing about the underlying circumstances, I’m just going to write this case up as a phenomenon I’ve seen many times: the strange belief that the annual printed copy of Chapter 39 is the sum-total of dependency law.* Surprise: there’s a Chapter 49 governing publication.

 

* There is a corollary to this, which goes “If I don’t carry around my printed Chapter 39 then there is no law at all.”