Third DCA: Foster Parents cannot access the entire file

The facts are simple: foster parents moved for party status, and the trial court partially granted them access to the entire court file. The mother (not TPR’d), joined by the GAL Program (for the children) and an AAL for another half-sibling, petitioned for cert alleging violation of privacy and lack of statutory basis. DCF took no position for or against their foster parent.

Section 39.01(50) expressly includes foster parents as “participants” in a dependency proceeding such as this, affording them rights to receive notice of hearings involving children in their care and allowing the court to permit them “to be heard without the necessity of filing a motion to intervene.” Chapter 39 does not, however, authorize the foster parents to receive every record in a confidential, pending dependency case court file that may relate, for example, to the natural parents, or to siblings that are in other placements and are not in the care of the foster parents. The order in this case did not exclude any such records, thus jeopardizing the constitutional (Art. I, § 23, Fla. Const.) and statutory (§ 39.0132(3), Fla. Stat. (2013)) rights of the natural parents and siblings to privacy and confidentiality.

D.C. v. J.M., 3D13-3158, 2014 WL 305284 (Fla. 3d DCA 2014).

Under the current statutory and constitutional scheme, this seems right.

Oral Argument on Notice and Hearing gets Real

Court: Florida Third DCA

Judges: Emas, Rothenberg, Fernandez

Attorneys: Kevin Colbert for Father, Karla Perkins for DCF

Issue: Trial court entered a TOS order with a no-contact for out-of-state father without notice and hearing. The father’s TPR by default was previously reversed in F.M. v. State Dept. of Children & Families, 95 So. 3d 378 (Fla. 3d DCA 2012).

Quote: “You don’t have to comb through the court file or make telephone calls to find out when hearings are going to be.” – Judge Rothenberg, who doesn’t know that in Miami dependency court that’s about the only way you can know for sure when your hearings are going to be. And even then, good luck.

As far as OAs go, this one has a surprise ending. Be sure to watch all the way through (or jump to 17:00).

Here’s what the Fourth DCA did with the amended reunification statute, section 39.522

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.

T.N.L. v. Dep’t of Children & Families, 4D13-1577, 2014 WL 223001 (Fla. 4th DCA 2014)

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.

Recreational marijuana use isn’t a defense to TPR, yet

Apparently I missed this in November: the Fourth DCA responded to a father’s defense that his marijuana use was only “recreational.”

The father never received a negative drug screen during the pendency of this case, he admitted at trial to continuing to smoke marijuana “recreationally,” and he failed to complete the required outpatient program before leaving the program altogether. In contrast to the parent who prevailed upon appeal in M.H. v. Department of Children and Families, the father in the instant case did not exhibit a “strong desire to overcome [his] addiction and parent [his child] ….” M.H. v. Dep’t of Children & Families, 866 So.2d 220, 223 (Fla. 1st DCA 2004). Instead, the record reflects an unwillingness on behalf of the father to quit smoking marijuana, even knowing that his refusal to at least make an effort to quit was impeding his (otherwise inconsistent) efforts to regain custody of his child. In Florida, it is still illegal to possess marijuana, let alone smoke it. There is no differentiation in the law between being a marijuana addict and a “recreational” user, contrary to the father’s brief (“he only smokes marijuana recreationally”). Thus, there was no legal error with respect to DCF and the trial court relying upon the father’s failure to test negative for marijuana (and, for the most part, failure to test at all) as a factor (along with others, cited above) in finding that he did not substantially comply with his case plan, constituting evidence of continuing abuse, neglect, or abandonment supporting termination of parental rights.

J.E. v. Dep’t of Children & Families, 126 So. 3d 424, 428-29 (Fla. 4th DCA 2013).

It’s obvious that the tide of public opinion on marijuana use is turning, and the Fourth seems to give a hat tip to such again and again: earlier in the opinion it reminds us that it only needs to uphold the TPR on one ground (i.e., abandonment for this father), and notes that the father’s positive marijuana tests were “a factor…in finding that he did not substantially comply with his case plan.” Just a factor in an otherwise poor case plan performance. It would only take a few years, some law changes, and a couple of intervening cases to relegate this opinion to non-authority full of pre-legalization dicta.

Obviously some parents’ marijuana use may pose a risk of harm to their children–just like some parents’ use of alcohol or anything else may. Once a case plan is entered, though, the question of harm is almost completely tabled in favor of the much easier (for the system) standard of “compliance.” If he truly was a harmless recreational user, then I think that this father brought up his “recreational” defense at the wrong point in the proceedings. His argument is more properly a defense to a dependency based on marijuana use. No defense attorney in Florida should be allowing their client to consent to a “tested positive for marijuana” dependency absent some harm to the children. Mr. J.E. is a cautionary tale for how that may work out.