Florida Supreme Court: Sorry we’ve mucked up paternity law for 75 years

The Florida Supreme Court released the long-awaited opinion in Simmonds v. Perkins, holding unanimously that the world of paternity has changed in the last 75 years and courts need to catch up.

The case involves a man, Connor Perkins, who was the unquestionably biological father of a child. He raised the child with the mother, and sometimes without her, and held himself out as the father. The mother was married at the time of the child’s birth and later objected to Mr. Perkins’ assertion of paternity based on that marriage. The husband was not involved with the child at all.

The trial court ruled that it was constrained by case law to dismiss Mr. Perkin’s petition for paternity because of the strong presumption of legitimacy of children born into intact marriages. Mr. Perkins appealed. The Fourth District Court of Appeal reversed, saying that case law grants bio-fathers standing when “common sense and reason are outraged” by applying the presumption of paternity.

The mother then appealed to the Florida Supreme Court on the basis that the district courts had developed conflicting rules on this situation. The Florida Supreme Court agreed that there was a conflict, but resolved it in favor of the Fourth District’s reasoning that there should be no absolute bar to a biological father asserting paternity over a child.

The opinion walks through the history of paternity rulings, pointing out the ways that life is very different today. In the old days only husbands could challenge paternity because you could only disprove (not prove) paternity by proving lack of access. Now we have DNA tests. The opinion essentially apologizes for years of tortured paternity rulings, including the “outraged” standard cited by the Fourth District, finding this language “unhelpful and unnecessary.” The opinion also retreats from cases that suggest that legitimacy is the touchstone in these cases.

Instead, the standard is this: a “biological father” who has “manifested a substantial and continuing concern” for the welfare of a child, can overcome the presumption of paternity when there is a “clear and compelling reason” based “primarily on the child’s best interests.” This must be done by clear and convincing evidence.

The opinion is careful to (foot)note that, despite adopting a clear and convincing standard akin to a termination of parental rights, it is not saying that the biological father has to prove abuse, abandonment, or neglect by the mother’s husband in order to prevail. Likewise, the opinion notes that even evidence that the husband has maltreated the child “might not be dispositive.”

Requiring a ruling based “primarily on the child’s best interests” does not mean exclusively, however. The opinion ends by noting that the balance between competing interests — including the married couple’s right to privacy and the due process rights of everyone involved — is best weighed by “a careful and conscientious fact finder familiar with the particularities of a given case” and not by blanket rules from case law. Proving “best interests” seems more reachable than proving something “outrages common sense.” But given the notoriously ill-defined legal contours of the “best interests” of a child, the Court may have gone from confused standards to none at all.

A word to anyone considering caging a child in Florida

I am very worried that the Trump administration’s asinine efforts to defend the indefensible are going to result in normalizing caging. I can imagine some misguided person, standing in partisan solidarity, caging their own child to prove it’s no big deal. I can imagine some group home worker seeing caging on the news and thinking it is a far more streamlined method of behavioral control than having to actually build positive relationships with kids.

Therefore, I would like to point out that it is aggravated child abuse under Florida law to willfully and unlawfully cage a child. § 827.03, Fla. Stat. Ann.

It is not “summer camp.” It is traumatic, dehumanizing, and illegal.

This couple was arrested for caging their daughter in a playhouse.

This woman caged her autistic daughter in a crate on a bed.

This woman caged her disabled son by locking him in a bare room with a urine bucket and the windows nailed shut.

It is very serious. Subjecting any child, including a child who is not yours, to aggravated child abuse (such as caging) is grounds to terminate your rights to your own children.  § 39.806(1)(g), Fla. Stat. Ann. And you do not get a case plan under that ground — “[r]easonable efforts to preserve and reunify families are not required if a court of competent jurisdiction has determined that any of the events described in paragraphs (1)(b)-(d) or paragraphs (1)(f)-(m) have occurred.” Id. If you cage someone else’s child, you can lose your own. That seems fair.

Caging a child is categorically different from sending them to their room (for parents) or securely detaining them (for the state). If you were thinking of caging your child in Florida, just don’t. If your boss tells you to cage a child in Florida, I suggest you ask them to show you the law that specifically allows it before you comply. I do not know of any.

If you know any child who has been caged, please call the Florida child abuse hotline at 1-800-96ABUSE.

We oppose family separation at the border (and everywhere else)

Our clinic has joined with 540 organizations across the country to oppose the forced separation of children and parents at the border. There is no legal, policy-based, or moral justification for harming children in an attempt to deter their parents from seeking asylum or entry into the United States. The Administration has options to keep children and families together and has declined to use them. The forcible, extended separation of children from their parents for any reason unrelated to the child’s immediate safety is inhumane.

Young Center for Immigrant Children’s Rights Commends Child Welfare Experts’ Overwhelming Opposition to Parent-Child Separation.

Read the letter here.

A belated Foster Care Month, Tampa is still on fire, and some actually interesting appellate cases.

Here’s your periodic child welfare update. If you have any tips or suggestions, please let us know at rlatham@law.miami.edu.

What’s going on in child welfare world

Moving and shaking. Judge Ariana Fajardo Orshan has been nominated for US Attorney in Miami. News reports have called her a “divorce court judge” and a “family court judge.” Until recently, however, she was a dependency court judge in Unified Family Court.

International relations. International adoptions are down, largely due to changes in policy by Russia, China, and the DRC. A report by Axios shows that domestic adoptions are back  to the levels they were before the financial crisis. Probably because the cost of living is one factor that determines foster care volunteer rates.

Hallmark doesn’t have cards for “I’m not legally allowed to know where my family is.” In honor of foster care month (which I guess was last month), here’s an essay that complicates the standard marketing messages a whole lot: Black Children and Foster Care: On surviving trauma of a system that doesn’t care about keeping families together. And meanwhile another foster child has died in custody.

Timeout. Hillsborough County’s foster care agencies got “blasted” by peer and OIG reports, and DCF is cracking down by making them write their own Corrective Action Plan and submit it in a month or so. That’s some tough justice. And if you think one peer report is “getting blasted,” Miami has two or three and can’t go out to play until it says it’s sorry.

Not it. Manatee County is trying not to be next, even though it is running a $3.8 million shortfall.

RSVP. A Hillsborough judge laid into case managers who do not appear in court to report on their cases. Be careful, judges — if case managers are sitting in your courtroom waiting on a hearing, they’re not out in the community getting kids to appointments and meeting with parents about their issues. Unless court calendars are very predictable or you set up a way for case managers to work in the courthouse itself, having them sit all day in a waiting room is likely not an efficient use of their time.

Everything is terrible. ProPublica reports that foster kids in Illinois are being held in psychiatric facilities longer than they legally should. So basically everything is terrible everywhere.

Mixed feelings martial arts. Justin Willis, an MMA fighter, explains how he learned to fight in foster care when staff encouraged pit fights among the kids.  He now aims to raise awareness about violence and conditions in foster care.  Says Willis, “If you take these kids out of their homes, you have to offer them something better. And what I received was not better. I wouldn’t say it was worse, but it created what I am today and that’s a monster when it comes to getting in that cage.”

Ok, not everything is terrible.  A trans kid got adopted in a costume party themed ceremony and it is awesome.

And now for some court opinions…

Sometimes you just lose. The Fifth DCA ruled that the failure of a trial court to make specific findings when denying a TPR under Chapter 63 is not necessarily reversible error. You don’t get to make the judge work late just so you can quibble over findings.  D.M. v. M.D., 5D18-473, 2018 WL 2448618 (Fla. 5th DCA May 30, 2018).

Daddy’s maybe? The Fourth DCA held that a biological father could not challenge an adoption more than one year after it was finalized. That’s normal, and where the opinion could have stopped. It also held, however, that he was not the legal father because the children were born during the mother’s intact marriage with another man, even though the trial court gave custody of the children to the biological father for a period of time as a non-relative. To assert his rights, the DCA ruled the father had to file a paternity action, a requirement I’m confident he probably did not anticipate given he had custody of his own kids. J.G. v. State, 4D18-0090, 2018 WL 2434817 (Fla. 4th DCA May 30, 2018).

So apparently there is a best interest of defaults. The Fourth DCA declined to set aside the default of a mother who was not personally served with a dependency petition, which was only filed the day before her arraignment. The court held that her appearance at the shelter hearing, where she was advised of her arraignment hearing date, obviated the need for personal service thereafter.  C.J.L-M. v. Dep’t of Children & Families, 4D18-836, 2018 WL 2716717 (Fla. 4th DCA June 6, 2018). I note that DCF conceded error but the GAL Program did not. I understand that, in general, needless delays can be bad. But I’m curious how the Program could determine that it was in this child’s best interest for their parent to be defaulted on a one-day old petition before any discovery had likely even been done. I mean, what if the allegations in the petition were actually wrong and the child is now in care for no reason?

Because sometimes DCF gets it wrong. The Third DCA took the rare step of reversing a dependency that was based solely on (1) the mother leaving her child with a relative who had previously been through the system and had her own children successfully reunified, and (2) the discharge of a firearm in the presence of the child. The DCA held that neither situation constituted risk of harm to the child without additional facts.  C.H. v. Dep’t of Children & Families, 3D18-291, 2018 WL 2422891 (Fla. 3d DCA May 30, 2018). Good thing she didn’t default.

A complete waste of everyone’s time. The Second DCA was put in the common position of reversing a change of goal and TOS to permanent guardianship for lack of proper notice. I get that you (DCF, GAL, child’s attorney, whoever), hint and grouse about changing the goal in hearings and hallways all the time. But threats are not notice. File the paperwork and set it out a week like you’re supposed to. In Interest of T.C., 239 So. 3d 1266, 1267 (Fla. 2d DCA 2018).

Speaking of wasting time. The Third DCA punted on the question of whether the Miami Herald can get access to an audio recording of a court hearing that its reporters were not present at. The opinion dismissed the appellate challenges from the family and child as premature because the trial court had not yet reviewed the record and determined what, if anything, the Herald would have access to. C.H.-C. v. Miami Herald Publ’g Co., 3D18-504, 2018 WL 2708374 (Fla. 3d DCA June 6, 2018). UPDATE: The Herald is reporting that the trial judge has reviewed the audio and ordered it released today. No word yet on whether the family will appeal.