Fourth DCA splits kids of father who has two years left in jail

The Fourth DCA issued an opinion yesterday that troubles me. The case involves the father of three children. Because of the mother’s drug use, the oldest and youngest of his kids were placed with an aunt. The middle child was placed in foster care. Unsurprisingly, the father was able to maintain contact and a relationship with the relative-placement kids, but was only able to speak to the child in foster care twice, despite calling regularly. The Fourth reversed the TPR as to the two kids with whom he was able to maintain a relationship, and affirmed as to the child in foster care.

The TPR ground was Florida Statute 39.806(1)(d), which permits the termination of a parent’s rights if

1. The period of time for which the parent is expected to be incarcerated will constitute a significant portion of the child’s minority. When determining whether the period of time is significant, the court shall consider the child’s age and the child’s need for a permanent and stable home. The period of time begins on the date that the parent enters into incarceration.

The Fourth points out that a previous version of this ground focused solely on the length of time of incarceration as a percentage of the child’s remaining childhood. The current version looks at the substantive effect of the incarceration on the child. This substantive analysis leads to this result:

As to P.S., the state proved by clear and convincing evidence that the child is thriving in his foster family’s care and does not wish to see his father. The father has not been able to maintain much contact with P.S. Thus, the father’s incarceration has been significant in that P.S., at a young age, has become bonded with the foster family to the exclusion of D.S. The foster parents wish to adopt P.S. To deprive him of this continuing relationship with his foster parents would prevent him from achieving a permanent and stable home. Thus, the court’s conclusion that the state proved a ground for termination is supported by competent substantial evidence. Moreover, for these same reasons, we conclude that termination was both in the manifest best interest and least restrictive means to prevent harm to P.S.
As to D.S., Jr. and K.S., the state has not proved this ground for termination. The children reside in a stable home with D.S.’s sister, their aunt. They are not in the custody of the Department or in foster care but in the care of a relative. Thus, to leave them in this placement would not allow them to languish in foster care. D.S. has maintained as close a relationship as his incarceration has allowed him to maintain with the children, and D.S ., Jr., in particular. While the children are bonded to the aunt and uncle, they still know that D.S. is their father and have regular interaction with him, including regular phone calls, letters, and visits. When D.S. is released from prison, D.S., Jr. will be eleven and K.S. will be six. Because they are with relatives, they will still be in contact with their present caregivers even when D.S. is reunited with the children.
D.S. v. Dep’t of Children & Families, No. 4D14-3144, 2015 WL 1810315, at *5 (Fla. Dist. Ct. App. Apr. 22, 2015)

It’s the same father, the same amount of time in jail, and the same efforts to maintain a relationship with all three children. The only difference were the placements, both of which were good, and the fact that one answered the phone when he called, and the other did not. I have difficulty seeing how this is the correct legal result.

The Fourth DCA over the last ten years has adopted a very substantive review of terminations of parental rights. The Fourth looks closely at the quality of the relationship between the parent and child, and what level of harm the parent poses to the child. In this particular case, the Fourth sees the positive relationship between the children and father as barring a TPR. The Fourth also lambastes the guardian ad litem and Department’s witnesses for basing their positions on conclusory determinations that the children placed with the aunt “need permanency.”

But that is exactly what the Fourth then does for the child in foster care. There is notably nothing in the opinion that suggests the child will be harmed by waiting for the father to get out of jail; and nothing that says that the foster parents would kick the child out of their home if they could not adopt. The facts appear to be only that the child is happy there and they are willing to adopt.

This case raises all sorts of constitutional questions. Under Equal Protection, a child with a parent who does “everything right” (which this one presumably did, because his TPR was reversed as to two children) should not be subject to permanent separation from his family based on the type of placement that he found himself in.  Under our Due Process jurisprudence it is hard to understand what harm the termination of the father’s rights protects the middle child from. If it is the harm of waiting to reestablish a relationship with his father, then TPR only exacerbates that by requiring the child to now wait until he is 18. And no consideration of the harm from being separated from his siblings appears to have been given at all, though presumably it was a factor considered in the manifest best interests findings. If the TPR is meant to protect the child from the harm of not having “permanency” there’s nothing in the opinion that suggests this was a concern of the child at all–permanency is usually more a concern of the system, which seeks to close cases sooner rather than later, than it is for the affected kids. The guardian ad litem spoke for the child’s best interests, but the same GAL was taken to task for a lack of sufficient investigation as to the other two children.

It appears to me that the key to this case was not harm posed to the child from the parent but the prospect of a better life offered by the foster parent. Any person in jail is now subject to TPR if their child is living with someone else. This isn’t consistent with our due process jurisprudence, and hearkens back to a day when TPRs were based solely on best interests. That is not a road we want to go back down.

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