After years of confusion on what to do on a motion for reunification when you have a “charged” parent who completed a case plan and an “uncharged” parent who was given custody, on July 1, 2013 the reunification statute was amended to include the following language:
In cases where the issue before the court is whether a child who is placed in the custody of a parent should be reunited with the other parent upon a finding of substantial compliance with the terms of the case plan, the standard shall be that the safety, well-being, and physical, mental, and emotional health of the child would not be endangered by reunification and that reunification would be in the best interest of the child.
T.N.L., the mother in this case, filed her motion for reunification in December 2012 and the hearing stretched all the way until March 2013. The child was with the father, out of state, and by all reports doing well. There was testimony that moving the child back to Florida would be “detrimental” to her, but not that it would “endanger” her. The motion was denied, the mother appealed. The Fourth DCA gave her another chance under the new law:
We find that the amended statute, which changes the legal standard for courts to apply in ruling on reunification motions involving a child placed with the non-offending parent, is a remedial statute and does not affect substantive rights. Thus, there is no bar on its retrospective application. See Smiley v. State, 966 So.2d 330, 334 (Fla.2007) (“Remedial statutes or statutes relating to remedies or modes of procedure, which do not create new or take away vested rights, but only operate in furtherance of the remedy or confirmation of rights already existing, do not come within the legal conception of a retrospective law, or the general rule against retrospective operation of statutes .” (citation omitted)). However, because of due process considerations that arise under the particular facts of this case, and because this is a dependency case involving the best interest of the child, we vacate the challenged orders and remand for a new hearing. Given that the reunification hearing took place before the amended statute went into effect, the mother was presumably operating under the belief that her motion would be granted so long as there was no evidence that reunification would endanger A.L. Indeed, the mother may have elected to present additional evidence relevant to the best interest of the child had she known that the standard had changed.
This case seems to have limited precedential value. Parents in open cases can always file a new reunification motion under the new standard, which will usually make it harder to get reunification if your child has been out of your custody with an uncharged parent for a year. This mother just got caught in the lurch, with an appeal pending between the two standards. Everyone else is on notice that the law has changed. Or hasn’t changed, depending on who you ask.