Miami Herald: Mom gets children; DCF gets skewered

Under Chapter 39, the judicial and executive branches exercise concurrent jurisdiction over the welfare of foster children who have been placed in DCF’s custody. See Simms v. State Dep’t of Health and Rehab. Servs., 641 So.2d 957 (Fla. 3d DCA), review denied, 649 So.2d 870 (Fla.1994).

Dep’t of Children & Family Services v. Interest of J.C., 847 So. 2d 487, 490 (Fla. 3d DCA 2002).

Florida Recognizes Dual Maternity, Approves X.X.G. in the Process

The Florida Supreme Court has released its decision in D.M.T. v. T.M.H. Recall that the case involved a lesbian couple who conceived through assisted reproductive technology, with TMH providing the egg and DMT giving birth to the child. The couple split and DMT left with the child, arguing on her way out the door and up through the courts that TMH was just an egg donor.

The majority’s holdings are summarized in the conclusion:

For the foregoing reasons, we hold that application of section 742.14 as a bar to T.M.H.’s assertion of parental rights is unconstitutional. The due process guarantees in the Florida and United States Constitutions and the privacy provision of the Florida Constitution do not permit the State to deprive this biological mother of parental rights where she was an intended parent and actually established a parental relationship with the child. We further hold that sections 742.13(2) and 742.14, in providing an exception to the statutory relinquishment of parental rights for egg and sperm donors who are part of a heterosexual “commissioning couple,” but not those who are part of a same-sex couple, violate the Florida and federal Equal Protection Clauses. We therefore hold that T.M.H.’s parental rights have not been terminated by law.

There is a lot going on in this opinion and many law review articles are already in the offing, I’m sure.

Very excitingly, the majority cites approvingly to the Third DCA’s gay adoption ruling in X.X.G., holding:

Finally, we note that the Third District has held Florida law prohibiting same-sex couples from adopting as unconstitutional. See Adoption of X.X.G., 45 So. 3d at 92. In finding the legislative prohibition against a homosexual adopting a child to be unconstitutional as a denial of equal protection lacking a rational basis, the Third District in Adoption of X.X.G. noted that the parties in that case agreed “that gay people and heterosexuals make equally good parents,” and that no party offered a justification for the prohibition on homosexual adoption based “on any theory that homosexual persons are unfit to be parents.” Id. at 85.

Likewise, in this case, no party and no amicus curiae has advanced the argument that either T.M.H. or, for that matter, D.M.T., is unfit to be a parent. Further, no party or amicus curiae has advanced the argument that the child’s best interests would be better served by having only one loving parent rather than two. To the contrary, the very statute that bars T.M.H. from being considered part of a “commissioning couple” fully contemplates that D.M.T., as the birth mother, would be recognized as the mother of the child born from the couple’s use of assisted reproductive technology, even though D.M.T. has no genetic connection to the child.

We conclude that the State would be hard pressed to find a reason why a child would not be better off having two loving parents in her life, regardless of whether those parents are of the same sex, than she would by having only one parent.

Sounds like a clear message that if gay adoption ever comes before this court, there are at least four votes in support.

The decision is here: http://www.floridasupremecourt.org/decisions/2013/sc12-261.pdf .

Independent Living Orders for July – August 2013

Through an agreement with the good people at Florida Administrative Law Reports, I’m happy to be able to share with you the Independent Living fair hearing final orders that would not have otherwise made it into the published FALR. The previous batch is analyzed at Independent Living Final Orders for April – June 2013.

In this batch I received 15 orders ranging in dates from July 2 to August 15, 2013. All of the orders involved RTI terminations.

The numbers of orders per county were as follows:

  • Pinellas County = 1
  • Orange County = 1
  • Volusia County = 1
  • Palm Beach County = 5
  • Miami-Dade County = 7

As in the past, Our Kids in Miami-Dade County had the highest number of orders. Our Kids is also the only CBC that intervenes with their own attorney against the youth.

Only three of the youth had representation at their fair hearing, and the lawyers made notable contributions to the proceedings. Wendy Cox in Pinellas County was able to settle her fair hearing and preserve the issue of back-pay of RTI in K.B. Kele Stewart and her students with the Children and Youth Law Clinic in Miami-Dade County were able to make sustained evidence objections in M.B.B. And Wendy Robbins in Miami-Dade County put her client on the stand in M.R.

In contrast, none of the pro se petitioners presented exhibits or testimony. Instead, their statements at the hearing seem to have been universally categorized as argument. Obviously this is a huge problem–argument isn’t evidence. In many orders the hearing officer summed up the youth’s position as “the youth does not dispute the allegations.”

Additionally, no school officials testified in any of the hearings about their school’s academic standards or the youth’s enrollment status. In many final orders, it appears that the sole source of evidence of the school’s academic standards came from the DCF employee who determined eligibility.

Most of the cases involved youth seeking good cause exceptions:

  • due to hospitalization (A.O.)
  • due to seizure disorder (V.J.)
  • due to inability to afford books/fees (D.F.D.J.)
  • due to lack of relevant classes and death of an uncle (J.W. III)
  • due to moving out of county and having to restart school (A.M.)
  • due to housing problems (M.R.)
  • due to caring for sick relatives and to protect her GPA (M.B.B.)
  • due to incarceration (O.H.)
  • due to fear of domestic violence by her child’s father (J.P.)

None of the petitioners requested an administrative waiver or variance under section 120. None of the hearing officers found any “good cause” exceptions to the RTI requirements. And, notably, none of the petitioners argued and none of the hearing officers analyzed the facts under the limited exception created in B.P. – 11F-09383, which reversed an RTI termination for circumstances outside of the petitioner’s control.

All of the cases that went to hearing had unfavorable outcomes, terminating the youths’ RTI. The exceptions were limited to one case that was dismissed as moot because the youth aged out of the program (A.O.), one that was an untimely filed appeal several years late (J.W-H.), and another that was settled prior to hearing (K.B.).

For now, all of the collected Final Orders are archived at  https://drive.google.com/folderview?id=0B_qBug5546qWZ3E3ak5lSmwzSUk&usp=sharing . If you sign in to Google and click “Open in Drive” at the top right, the orders are sortable and searchable. I’m still looking for a better way to make them publicly accessible.