L.C. v. DCF – Schizophrenia and Expedited TPRs

Court: Florida 3rd DCA

Judges: Shepherd, Logue, Schwartz

Attorneys: Kevin Colbert for the Father, Karla Perkins for DCF, Hillary Kambour for GAL Program.

Issue: Did substantial competent evidence support expedited TPR for a father with schizophrenia?

Thoughts: Expedited TPRs for treatable/manageable conditions are always tricky because there is always a possibility, no matter how remote, that some treatment will work. I once had an expert in a TPR trial testify unexpectedly to an experimental procedure used in Switzerland (or somewhere) that had achieved good results. But the procedure wasn’t approved for use in the US. The question is what threshold of reasonable expectation of benefit do we require? Bright-line rules are difficult. There is always a doctor who is willing to try one more thing. There is always a judge who has had enough.

Miami LGBTQ homeless youth may finally have somewhere safe to go

A comprehensive queer youth homelessness-fighting initiative? Yes please. Citrus will handle the housing. Pridelines and the Alliance for GLBTQ Youth will provide programming and training support. This will cover a huge need in South Florida:

“Our community needs assessment reported that an astonishing 34% of youth who identify as lesbian, gay, bisexual, transgender or who question their sexual identity have been kicked out of their homes here in Miami-Dade County,” said Carla Silva, executive director of The Alliance for GLBTQ Youth. “Additionally, an LGBTQ youth is likely to be physically or sexually victimized by seven or more people and run away from home almost twice as often as his or her heterosexual counterpart.”

Added Robin Schwartz, executive director of Aqua Foundation for Women, “Currently, there are no comprehensive housing solutions to care for displaced youth that are also equipped to deal with the special circumstances of an LGBTQ youth. This collaboration is going to change that.”

Press release: here.

Miami Herald: Miami-Dade volunteers survey kids on the street.

“The first thing I lost in law school was the reason I came”

Back in March, I came across this post at Poverty Law blog:

A student who wants to do work on social justice came to my office and after I emailed him Bill Quigley’s essay, Letter to a Law Student Interested in Social Justice, he sent me a link to Dean Spade’s essay, For Those Considering Law School.   Both are worth reading by those considering law school — and even though in law school or teaching at law school.  Three somewhat more dated essays include Duncan Kennedy’s Legal Education and the Reproduction of Hierarchy (a canonical classic), Robert A. Williams, Jr.’s Vampires Anonymous and Critical Race Practice (a favorite of mine), and my On Becoming “Professor” (mine, though it is the weakest link in this list of essays).

I decided to auto-post this at the beginning of each semester, with the reminder that

by most objective standards, law school is not a place that social justice-minded human beings should willingly be. And yet here they, we, are. We, teachers and students both, must struggle together to create something more out of the experience than marshaled consumption of (expensive) case books, debt-binding, and then hierarchical sorting of students for their disbursement into the hegemony.

Today marks the beginning of the Fall semester. For the first time since I’ve been at CYLC, we’ve moved to a six-credit model, giving more time and space for students to explore law and justice beyond the day-to-day tasks of handling cases and getting case managers to call them back. Our goals this semester are to look outward and see individual clients as part of wider community efforts and struggles. It will take more than two extra credits to make that happen, but I hope I can report back positive results. Here’s to a good semester.

DCF Preparing to Create Independent Living Program Rules

DCF issued a Notice of Rulemaking for the new Independent Living Program. The notice gives us an idea of how they’ll organize the new administrative code. As of now, the new code sections are:

65C-41.001 Definitions
65C-41.002 Youth Program Participation Requirements
65C-41.003 Application Procedures for Initial Participation and Re-entry
65C-41.004 Case Management Services For Young Adults in Extended Foster Care
65C-41.005 Judicial Interaction
65C-41.006 Discharge from Program
65C-41.007 Appeals
65C-41.008 Fiscal Management Requirements

More to come, very quickly I’m sure.

New York: Child in child support proceeding not eligible for SIJ findings

The New York Appellate Division has ruled that a child subject to child support proceedings is not sufficiently “dependent on a juvenile court” to allow a special immigrant juvenile best interest order to issue. The court reasons that child support proceedings are actually monetary suits between the parents, and create no jurisdiction over the child’s care or custody. The court says the child is free to pursue other avenues (“albeit more protracted”) of permanent residency. In re Hei Ting C., 969 N.Y.S.2d 150 (N.Y. App. Div. 2013)

Third DCA: Parents are not parties to each other’s TPR cases

The Third DCA issued the following very short opinion:

The Appellant, A.D., as the father of Ke.Q., seeks to reverse the trial court’s final judgment terminating the parental rights of Ke.Q.’s mother. The Appellant argues that he was denied due process when the trial court refused to appoint counsel for him at the Mother’s termination of parental rights proceedings and as a result, he was also denied his right to be heard at her trial.
Florida Rule of Appellate Procedure 9.146 permits “any parent … to the proceeding affected by an order of the lower tribunal” to appeal the final judgment. (Emphasis added). “[I]ndividuals who were ‘not parties to the proceedings below,’ lack standing to bring an appeal.” R.H. v. Dep’t of Children & Family Servs., 994 So.2d 1153, 1155 (Fla. 3d DCA 2008)(quoting C.M. v. Dep’t of Children & Families, 981 So.2d 1272, 1272 (Fla. 1st DCA 2008)). The Appellant was not affected by the order of the lower tribunal terminating the Mother’s parental rights. Although the Appellant was a party to Ke.Q.’s dependency proceeding, he was not a party to the Mother’s termination of parental rights proceeding. Therefore, he lacks standing to seek reversal.
We dismiss the Appellant’s appeal for lack of standing.

I don’t think this takes into account the cross-effects that the One-Parent TPR provision of 39.811 has on parents facing TPR. Under that provision, one parent can be TPR’d without TPR’ing the other only if they are the last remaining parent or if they pose some heightened risk to the child (i.e., “the protection of the child demands” the TPR of the parent). Assume two parents: the first is dangerous, the second is slow on their case plan but otherwise not a risk of heightened harm sufficient to overcome the one-parent TPR provision. If the first parent is inappropriately TPR’d, then the second parent is now open to immediate TPR as the last remaining parent. I think that creates a sufficient quantum of interest to give certain parents standing in their co-parent’s TPR trial.

Fourth DCA: Case plan tasks preventing contact between parents are legit

In a small number of cases, one parent’s compliance with their case plan will be contingent upon their ending contact with the other parent.  Over a Free Association challenge, the Fourth DCA says this is not an unconstitutional infringement of association:

As to the father’s claim that his constitutional right to free association with the mother was infringed, his contact with the mother was a factor in the trial court’s decision to terminate rights. The mother’s rights had also been terminated, and the court had determined that she remained a danger to the children. Despite this, the father remained in contact with the mother and indicated that he would continue to involve the mother in the children’s lives. The trial court did not violate the father’s constitutional rights. The right to free association in personal relationships, which includes a parent’s right to the care and upbringing of his child, is not absolute, and infringements may be justified by a compelling state interest in the protection of children. See D.D. v. Dep’t of Children & Families, 849 So.2d 473 (Fla. 4th DCA 2003)(state has compelling interest in protection of children and does not violate that test when it interferes with father’s fundamental right to parent child through the exercise of its authority under Chapter 39, Florida Statutes).

P.O. v. DCF, — So.3d —- (Fla. 4th DCA) (July 17, 2013).

First DCA: foster parents cannot use corporal punishment under cover of religious belief

If your religious beliefs do not allow you to abide by the contractual terms of being a foster parent, then you should not be a foster parent, says the First DCA:

We reject Appellants’ contention that section 409.175(1)(b) deprives the Department of legal authority to prohibit corporal punishment, specifically the striking of the child’s body in an effort to control or in response to the child’s behavior, as the facts established in this case. Clearly, a licensure under section 409.175 does not endow the licensee with a property right. Section 409.175(2)(e) specifically provides: “A license under this act is a public trust and a privilege, and is not an entitlement.” In addition, the Bilateral Services Agreement and Specialized Therapeutic Foster Parent Agreement containing the same prohibition on corporal punishment as rule 65C–13.029 were voluntary contracts knowingly entered into by Appellants. If Appellants never intended to comply with the provisions of the contracts due to their religious practices, they should not have entered into the contracts and agreed to the terms and restrictions in those agreements, upon which their license was conditioned. Appellants have failed to establish any erroneous interpretation of a provision of law by the Department.

Sanders v. DCF, — So.3d —- (Fla. 1st DCA) (July 19, 2013).

The fact that these were supposedly therapeutic foster parents only makes it worse.

To Motion or Not to Motion – Second DCA still requires motion for dismissal below

The Second DCA is still requiring parents to make a motion for dismissal at trial in order to preserve arguments for appeal. O.T. v. DCF, — So.3d —- (Fla. 2nd DCA) (July 24, 2013). And for some reason defense attorneys in the Second DCA are still not doing that.

The Second at least certifies conflict:

The Appellant did not preserve any issues for appeal of the order terminating his parental rights, because he did not move for a judgment of dismissal below, either at the close of the Department’s case or at the close of his own. See J.F.S. v. Dep’t of Children & Families, 100 So.3d 784 (Fla. 1st DCA 2012); J.M. v. Florida Dep’t of Children & Families, 38 So.3d 236 (Fla. 1st DCA 2010); K.J. v. Dep’t of Children & Families, 33 So.3d 88 (Fla. 1st DCA 2010); J.D. v. Dep’t of Children & Families, 825 So.2d 447 (Fla. 1st DCA 2002).
Because the Fourth and Fifth District Courts of Appeal disagree that a parent must preserve issues for appellate review via motion for judgment of dismissal, we certify conflict with R.P. v. Dep’t of Children & Families, 49 So.3d 339 (Fla. 5th DCA 2010); and H.D. v. Dep’t of Children & Families, 964 So.2d 818 (Fla. 4th DCA 2007)review dismissed, 985 So.2d 1059 (Fla.2008).