Judge C. Alan Lawson (5DCA) appointed to Florida Supreme Court. How did he rule on child welfare cases?

 

Governor Scott has appointed Judge C. Alan Lawson of the Fifth District to the Florida Supreme Court. Judge Lawson will replace Justice James E.C. Perry who has reached mandatory retirement age. News reports have focused on Judge Lawson’s conservative credentials, but I thought I would take a look  at his child welfare rulings to get a feel for what we can expect from our 86th justice.

Child Welfare Opinions

I could find only six opinions authored by Judge Lawson that dealt with child welfare issues (and one dissent, which I will discuss below). In these opinions I see a judge attempting to reach a decision in the text of the law, not the facts of the case. Five of his child welfare opinions are resolved with references to statutes, court rules, and the fundamental due process requirements of notice and opportunity to be heard. None of these five authored opinions dealt with substantive child welfare doctrines like harm or risk, though these issues are certainly present in every case.

  • Finding trial court improperly declared statute unconstitutional without proper notice to DCF; finding that statutory term “foster care” did not include placement with dependency guardian. DCF v. K.D., 45 So.3d 46 (Fla. 5th DCA 2010).
  • Reversing TOS order with non-offending parent where offending parent working on case plan and no finding that reunification would be detrimental was made. M.M. v. DCF, 29 So.3d 1200 (Fla. 5th DCA 2010).
  • Holding standard for change of custody is the child’s best interest and finding no statutory preference for grandparents. Guardian ad Litem Program v. R.A., 995 So.2d 1083 (Fla. 5th DCA 2008).
  • Holding that statutes do not permit court to resume jurisdiction over children after relinquishing at TOS without adjudication of new dependency petition. C.B. v. DCF, 975 So.2d 1158 (Fla. 5th DCA 2008).
  • Reversing denial of shelter where DCF not permitted to present evidence of parent’s substance abuse. DCF. v. E.G., 939 So.2d 226 (Fla. 5th DCA 2006).

A sixth opinion, however, did look at the question of what constitutes harm under Chapter 39: a 2006 case involving a lesbian couple. D.E. v. R.D.B., 929 So.2d 1164 (Fla. 5th DCA 2006). In that case, the mother’s ex-partner (denoted “former lesbian lover” in the opinion) sought custody through a dependency action by providing expert testimony that her separation from the child could cause psychological harm to the child.  (It’s unstated in the opinion whether the expert had been able to evaluate the child or was testifying generally.) Judge Lawson affirmed the denial of the petition, holding that a parent’s decision to cut a child off from a non-parent is not grounds for a dependency. Instead of referring to Chapter 39 which (problematically for the ruling) describes a broad range of cognizable harms, Judge Lawson cited to dissolution cases that dismissed dependencies based on relocation of a child or a child’s general apprehension as to the conduct of the parties. The detailed statutory analysis seen in other opinions by Judge Lawson is not found here.

This would not be Judge Lawson’s last case involving lesbian parents. In T.M.H. v. D.M.T., 79 So.3d 787 (Fla. 5th DCA 2011), the issue of parental rights in a lesbian relationship was again before the court. This time, one partner transferred her eggs to the other partner, who carried and gave birth to the child. The couple then raised the child together for years, and — as couples sometimes do — separated. The majority held that both women had parental rights in the child. Judge Lawson issued a lengthy dissent, arguing that only the birth mother had any rights to the child under the statute and common law. The biological mother, under this reading, was an ovum donor to her own partner and that fact violated neither Due Process or Equal Protection. The Florida Supreme Court, in D.M.T. v. T.M.H., 129 So.3d 320 (Fla. 2013), agreed with Judge Lawson’s statutory construction, but ruled that a system that treated heterosexual and same-sex couples differently in such a fundamentally important way violated the constitution.

Special Immigrant Juvenile cases

The Florida Supreme Court is currently reviewing several cases involving private dependency petitions brought on behalf of unaccompanied alien children. Judge Lawson has not written any opinions on this issue, but he has concurred in two that are relevant.

In 2006, the Fifth District affirmed a finding of dependency against the abusive non-parent custodian of an alien child. In doing so, the Fifth noted that the Department and court had obligations under section 39.5075 with regards to the child’s immigration status. Morcroft v. DCF, 929 So.2d 51 (Fla. 5th DCA 2006) (J. Lawson concurring).

In 2010, the Fifth District reversed the denial of a dependency petition where both parents were deceased and an uncle was caring for the child. In doing so, the Fifth rejected the argument that the court had no jurisdiction because the Attorney General had not issued specific consent (or, more properly, found that the argument was not supported by any evidence regarding the removal proceedings), and declined to dismiss the case as moot when the child turned 18 pending appeal.  L.T. v. DCF, 48 So.3d 928 (Fla. 5th DCA 2010) (J. Lawson concurring).

In O.I.C.L., the Florida Supreme Court recently ruled, in a 3-1-3 plurality, that a dependency becomes moot when an alien child turns 18 pending appeal. Justice Perry joined the dissent in that case. Judge Lawson’s vote, if consistent with his 2010 concurrence, wouldn’t have changed that outcome. Another related case was just briefed for mootness and an opinion is pending.

Concurrences

Judge Lawson concurred in 32 child welfare cases over the years. I’ve categorized them below based on what appears to be the primary basis of each ruling. What arises out of these concurrences is a judge who does not like due process “gotchas” but will defer to common sense on procedural matters, a judge who will reach for statutes and rules to explain substantive decisions, and a judge who is comfortable deferring to trial judges in most cases. Judge Lawson had no trouble reversing a case for a clear statutory violation, such as in a 2012 ICWA case. The five times Judge Lawson joined in reversing a trial judge on the strength of the record, however, the facts supporting the order were either stale or nonexistent.

The rest of this post is a list of cases, so I will say here: Congrats to Judge Lawson on the appointment. A happy retirement to Justice Perry.

Due process rulings

  • Reversing TPR by implied consent where trial court held serial advisory hearings. R.A. v. DCF, 83 So.3d 841 (Fla. 5th DCA 2011).
  • Reversing TOS where parent and DCF had different understanding of “maintain and strengthen” goal and mother’s eligibility for reunification. A.L. v. DCF, 53 So.3d 324 (Fla 5th DCA 2010).
  • Aligning with Fourth District that motion to dismiss at trial is not required to preserve sufficiency of evidence arguments. R.P. v. DCF, 49 So.3d 339 (Fla. 5th DCA 2010) (mem.)
  • Reversing TPR by default where parent made efforts to appear and requested to appear by phone. B.D. v. DCF, 46 So.3d 650 (Fla. 5th DCA 2010).
  • Reversing case plan order where order was internally inconsistent. L.M. v. DCF, 19 So.3d 1153 (Fla. 5th DCA 2009).
  • Affirming TPR grounds not found in petition where no objection raised at trial. 940 So.2d 577 (Fla. 5th DCA 2006).

Statutory or procedural rulings 

  • Affirming order requiring uncharged parent to participate in services. F.O. v. DCF, 94 So.3d 709 (Fla. 5th DCA 2012).
  • Affirming case plan requiring drug court participation over objection of parent. J.W. v. DCF, 84 So.3d 1157 (Fla. 5th DCA 2012).
  • Finding a statutory right to counsel in private TPR proceedings. T.M.W. v. T.A.C., 80 So.3d 1103 (Fla. 5th DCA 2012).
  • Finding violation of ICWA required reversal of TPR. G.L. v. DCF, 80 So.3d 1065 (Fla. 5th DCA 2012).
  • Finding statutory authorization for “no new law violations” case plan task. S.S. v. DCF, 75 So.3d 818 (Fla. 5th DCA 2011).
  • Denying petition to review trial court’s denial of step-father access to dependency proceeding. R.L.F. v. DCF, 63 So.3d 902 (Fla. 5th DCA 2011).
  • Parent not entitled to attorney after surrender and therefore payment for services not authorized. Justice Administrative Com’n v. McNeilly, 59 So.3d 302 (Fla. 5th DCA 2011) (mem.)
  • Reversing permanent guardianship order where no finding made why reunification with father was not possible as required by statute. R.T. v. DCF, 27 So.3d 195 (Fla. 5th DCA 2010).
  • Holding there is no mechanism to raise ineffective assistance of counsel claims and certifying question to Florida Supreme Court. L.H. v. DCF, 995 So.2d 583 (Fla. 5th DCA 2008).
  • Applying rule of parental preference and permitting parent to rescind custody agreement without showing of fraud or duress. D.B. v. W.J.P., 962 So.2d 949 (Fla. 5th DCA 2007).
  • Remanding long-term custody order to comply with statutory requirements. 944 So.2d 481 (Fla. 5th DCA 2006).
  • Affirming denial of foster parent’s motion to review change of placement where no clear abuse of discretion found. Guardian ad Litem Program v. DCF, 936 So.2d 1183 (Fla. 5th DCA 2006).

Affirming trial court on facts

  • Affirming dependency for father with medically needy child. A.J. v. DCF, 111 So.3d 980 (Fla. 5th DCA 2013) (“The parents and child have had a rough road to navigate and will continue to face monumental obstacles. The purpose of the finding of dependency is not to punish the parents, but rather to help them meet the needs of a very challenged little girl.”).
  • Affirming TPR for failure to comply with case plan tasks by abusing prescription drugs. T.K. v. DCF, 67 So.3d 1197 (Fla. 5th DCA 2011) (“In short, this mother is the face of a problem of epidemic proportions—the obtaining of large quantities of prescription medications from numerous physicians.”).
  • Affirming TPR for failure to comply with drug treatment. C.K. v. DCF, 65 So.3d 1179 (Fla. 5th DCA 2011).
  • Affirming TPR for egregious abuse where father failed to seek medical treatment for severe injuries for 6 hours. J.R. v. DCF, 28 So.3d 117 (Fla. 5th DCA 2010).
  • Affirming TPR for failure to comply with case plan. D.C.J.-S. v. DCF, 16 So.3d 267 (Fla. 5th DCA 2009) (mem.)
  • Affirming TPR where parent would be incarcerated for 60% of child’s minority. J.W.B. v. DCF, 8 So.3d 1191 (Fla. 5th DCA 2009).
  • Affirming TPR where evidence showed little progress of parent. J.Y. v. DCF, 10 So.3d 168 (Fla. 5th DCA 2009) (“[It] is far better for [this child] to be placed for adoption with a loving and stable family than it is to have [her] remain in foster care any longer awaiting the rehabilitation of [her] parents which will likely never occur.”).
  • Affirming TPR where placement with mother and grandmother was not found to be in best interests of child. C.F. v. DCF, 982 So.2d 1249 (Fla. 5th DCA 2008) (“Though we have great sympathy for the mother, we are not in a position to second guess the considered judgment of the trial court.”).
  • Affirming TPR for both parents where DCF could not prove which parent committed egregious abuse. S.E.G. v. DCF, 977 So.2d 707 (Fla. 5th DCA 2008).

Reversing trial court on facts

  • Affirming TPR but reversing abandonment findings for parent who visited regularly and provided toys and clothing. C.B. v. DCF, 199 So.3d 528 (Fla. 5th DCA 2016) (mem.).
  • Reversing denial of reunification for improper reliance on facts of original dependency without regard to progress of parent. J.C. v. DCF, 77 So.3d 1277 (Fla. 5th DCA 2012) (mem.).
  • Termination for abandonment not the least restrictive means where DCF fails to show why parent would not be amenable to reunification. R.L. v. DCF, 63 So.3d 920 (Fla. 5th DCA 2011).
  • Reversing finding of abandonment for incarcerated father where DCF failed to present evidence of frequency and type of communications between father and child and ability to financially support. B.T. v. DCF, 16 So.3d 940 (Fla. 5th DCA 2009).
  • Reversing denial of visitation for father where no evidence that substance abuse would place child at harm during supervised visits. B.H. v. DCF, 923 So.2d 609 (Fla. 5th DCA 2006).

Florida foster care numbers in historical context

I’ve added a new tab to the Child Welfare System Dashboard that shows the out-of-home care population annotated with historical events: governors’ tenures, legislative history, and Florida Supreme Court opinions. Each picture tells a different part of the story about what drives child welfare policy and the rise and fall of the OOHC population.

Leadership

The saying goes “personnel is policy.” The chart below shows historical trends in the statewide out-of-home care numbers as a factor of both who was secretary and who was governor. Be careful about the vertical axis — it starts at 14,000 to make room for the labels, so the proportions may be misleading. The current OOHC population is 19% lower than when Governor Crist took office and 30% higher than when Governor Scott took office.

history-gov

 

Legislation

The next chart shows major state legislative enactments. It’s a little hard to read because the major overhaul bills do lots of things all at once. That’s not exactly how you want to run an evidence-based system. (The chart below is just major legislation — the tableau.com version lets you view all legislation during the tenure of each secretary.)

The chart shows that Secretary Butterworth took over right after the passage of SB 1080, which greatly expanded both the permanency options and case planning procedures. OOHC plummeted during this time. Secretary Sheldon took over right after the passage of HB 7077, which restricted case plan duration to 9 months before triggering a TPR ground. The size of OOHC continued to decrease through this period. At the end of Secretary Sheldon’s tenure, the Legislature passed HB 5303, which changed the funding and risk pool models for CBCs.

With a new governor and a new secretary in 2011, the Legislature passed SB 2146 creating the Equity Allocation Model in statute, which based funding on proportions of children in the CBC’s area (30%), proportion of children in care (30%), proportion of hotline workload (30%), and proportion of reductions in the size of OOHC (10%). (This is a gross oversimplification.) By 2015, the formula had been tweaked multiple times to condition 80% of funding on the CBC’s size of OOHC, 15% on the hotline workload, and only 5% on the size of the child population. Between January and June 2015 when the bill that cemented OOHC as the primary driver of funding was being considered in the legislature, CBCs permitted their OOHC populations to grow by 2,000 children in what appears to be the largest and steepest consecutive increase in documented history. Aside from seasonal variations, OOHC rates have increased ever since.

history-major-bills

 

Adjudication

This last chart shows Florida Supreme Court opinions. You can see that in the early 2000’s, when the OOHC population was still high, the main issue was the level of due process afforded parents in dependency and TPR proceedings. (Very little.) Most opinions were answered with a legislative amendment. In 2004, the Court issued an opinion requiring a showing of substantial risk of harm to a child in order to terminate their parents’ rights. That was the Court’s last substantive child welfare opinion until 2015, when the Court held that parents have a constitutional right to effective assistance of counsel in TPR proceedings. The next year, the Court ruled that the existence of a bond between the parent and the child is not fatal to a TPR under Least Restrictive Means analysis.

It’s difficult to say that any particular Florida Supreme Court decision had a steering effect on child welfare policy. Instead, the opinions seem to have nudged the Legislature and Department to modify existing procedures to achieve their desired results.

history-flsct-opinions

 

I suppose the take-away is that if you want to shift child welfare policy you should become the Governor or Secretary. If you can’t do that, you should at least become a legislator. If you’re not interested in all that work, filing a lawsuit here or there can’t hurt. I’m apparently in the wrong business.

Florida DCF numbers for Nov: up 5.2% over last year, racial disparity dropping, Suncoast and NW still on fire

statewide-dec-2016

The DCF trend report numbers are out, and the expansion is continuing statewide. You can see in the chart below that, due to its size, the Suncoast Region continues to be the largest driver of the statewide expansion, but the Northwest Region continues to show the largest individual growth. The two Southeast Region contracted again this month, and the Southern Region flattened and may be entering an expansion soon.

The statewide racial disparity index has been dropping, driven largely by an increase in white children entering care in the northern parts of the state. That raises the question of whether policy changes are removing any “white bonus” that may factor into the decision to remove children. The southern areas still show incredibly high racial disparity indices that are worth digging into deeper.

I’m running short on time today, so the rest of the charts are below. Or you can explore in unbearably more detail at tableau.com.

Region Nov 2015 Nov 2016 Change % of OOHC Contribution to Change
Statewide 22556 23737 5.2% 100.0% 5.2%
Suncoast 6063 6774 11.7% 28.5% 3.3%
NW 1894 2291 21.0% 9.7% 2.0%
Central 4959 5267 6.2% 22.2% 1.4%
NE 3232 3438 6.4% 14.5% 0.9%
S 2094 1930 -7.8% 8.1% -0.6%
SE 4314 4037 -6.4% 17.0% -1.1%

 

Does Florida have enough foster homes? (It’s at 2/3 capacity.)

I have read a lot in the news lately about the foster care crisis. By many accounts, the growth in out-of-home care (OOHC) has been driven in part by a growing epidemic of drug cases. In previous posts, I’ve shown that the data does not exactly bear that out and the growth is more likely a result of policy changes, especially policies on how cases with available relatives are handled.  I don’t deny there’s been an uptick in drug cases, but the expansion is probably a result in fewer cases being referred to voluntary services while the children stay with a relative under a safety plan.

Another theme in these news reports is the lack of foster homes. So let’s take a look at those numbers. In March 2016, I requested the count of licensed beds in each zip code in Florida. The data went into the Licensed Placements by CBC & Zip Map. Last week I made the same request again, and can now compare the numbers between March and now.

The results: the number of licensed beds has grown 0.8% while the number of children in OOHC has grown 3.9%, or almost 5x as fast.

While 0.8% is probably a non-significant change, the numbers are higher and lower around the state. Losing 16 beds in Miami-Dade County is essentially no change, while gaining 60 beds in Duval County is an almost 8% expansion.

changes-in-all-placement-dec-2016

The chart below shows the changes in licensed bed numbers against the changes in OOHC placements. Non-relatives continue to make up the fastest growing placement type, which may be concerning if agencies are using this category to avoid licensing and support while also reducing board payments. I would be curious to know how many of these placements would convert to licensed placements if given an efficient way to do so. I would also be curious to know how many of these “non-relatives” would be more appropriately licensed as group homes.

On the other end, both facility placements (actual kids placed in a facility) and therapeutic beds are decreasing. The number of Child Caring Agency beds has remained almost even.

Description Mar-16 Most Recent Change
Nonrelative Placements 2498 2740 9.7%
Family Foster Placements 7162 7533 5.2%
OOHC Placements 22876 23770 3.9%
Relative Placements 10213 10532 3.1%
Family Foster Beds 10155 10294 1.4%
All Licensed Beds 16419 16546 0.8%
Child Caring Agency Beds 4409 4415 0.1%
Therapeutic Foster Beds 1122 1104 -1.6%
Facility Placements 2472 2396 -3.1%

Another way to view these numbers is by how full-to-capacity each type is. The placement data and the licensing data isn’t broken up in exactly the same way, so I’ve combined family foster beds and therapeutic beds. The result is that only two-thirds of family foster beds are actually filled, and that number has crept up since March 2016. Simultaneously, a little over half of child caring agency beds (i.e., group homes) are filled by child welfare kids.

Description Mar-16 Most Recent Capacity Change
Family Foster + Therapeutic Capacity 63.5% 66.1% 2.6%
Child Caring Agency Capacity 56.1% 54.3% -1.8%

The 33% vacancy rate is probably due to lots of factors. Some families are licensed for more children than they want to take in at any given time. Other beds cannot be filled because a child in the home has a safety plan that prevents other children from being placed there. Still other homes are temporarily not accepting children at all.  In group homes, not all kids in those homes are child welfare placements. What is important is that we’re pushing deeper into the foster home capacity and reducing the reliance on group home programs.

Below are the breakdowns for foster beds, therapeutic beds, and group home beds. You can explore the data in more detail on tableau.com. As always, if there’s something you want to see or know, just leave a message in the comments.