Florida case law update: bio fathers granted standing to assert rights

Two Florida district courts issued favorable rulings for biological fathers this month. Both fathers were granted standing and a chance to assert their claim over the objection of the presumptive legal fathers.

The Second District permitted a biological father to challenge the paternity of a man on the birth certificate. The court approved of the following:

  1. bringing paternity actions in dependency cases (the rules permit it);
  2. standing of bio fathers to challenge paternity based on fraud, duress, or material mistake of fact (in this case, the mother’s fraud and the legal father’s mistake of fact);
  3. not putting any weight on a court’s identification of the parents at a shelter hearing (it’s not a paternity hearing); and
  4. recognizing prospective parents as participants when in the best interest of the children  (the statute requires it).

In re Y.R-P. (Fla. 2nd DCA 2017).

There’s nothing legally new here, but it is a nice roadmap for handling those convoluted cases where two (unmarried) men are vying for the same child.

The Fourth District addressed the issue of standing when the legal father is married to the mother in Perkins v. Simmonds (Fla. 4th DCA 2017). The Fourth rejected an absolute bar to challenging the presumption of paternity when a child is born into an intact marriage, and instead re-affirmed its prior holdings that the presumption must give way when it “outrage[s] common sense and logic.” (Not a particularly helpful formulation, but better than an inflexible bar.) In this case, the child was given the bio father’s last name, was financially supported by the bio father, and had a strong relationship with the bio father. That was more than enough to give the bio father standing to assert paternity.

These seem like good outcomes. Maybe one day we can be done with the legal concept of legitimacy and all the problems it invites.

See also:

  • Theresa Glennon, Somebody’s Child: Evaluating the Erosion of the Marital Presumption of Paternity, 102 W. Va. L. Rev. 547 (2000) (via heinonline.org)
  • David D. Meyer, Parenthood in A Time of Transition: Tensions Between Legal, Biological, and Social Conceptions of Parenthood, 54 Am. J. Comp. L. 125 (2006) (via jstor.org)
  • Sarah McGinnis, You Are Not the Father: How State Paternity Laws Protect (and Fail to Protect) the Best Interests of Children, 16 Am. U.J. Gender Soc. Pol’y & L. 311, 312 (2007) (via digitalcommons.wcl.american.edu)
  • Melanie B. Jacobs, My Two Dads: Disaggregating Biological and Social Paternity, 38 Ariz. St. L.J. 809, 810 (2006) (via digitalcommons.law.msu.edu)
  • Melanie B. Jacobs, Parental Parity: Intentional Parenthood’s Promise, 64 Buff. L. Rev. 465 (2016) (via digitalcommons.law.msu.edu)
  • Melissa Murray, What’s So New About the New Illegitimacy?, 20 Am. U.J. Gender Soc. Pol’y & L. 387 (2012) (via ssrn.com)
  • Leslie Joan Harris, Involving Nonresident Fathers in Dependency Cases: New Efforts, New Problems, New Solutions, 9 J.L. & Fam. Stud. 281 (2007) (via heinonline.org)

 

Attorney: “I don’t have to file a motion for every little thing.” Appellate Court: “Oh really?”

The Third District Court of Appeal reversed an order granting supervised visits yesterday because the trial court entered the order without proper notice to the Department. The opinion is surprisingly long for a simple “no notice, reversed” ruling, and the lone footnote may explain why:

1 In light of the statutory obligations and clear case law on the issue of modification of visitation, it was inappropriate of counsel to tell the judge that “I don’t have to file a motion for every little thing,” in response to DCF’s objection that it had not been properly noticed.

The attorney is correct. You don’t have to file a motion and give notice if your opponent doesn’t object.

Two cases out of Florida show the bias against fathers in child welfare

Let’s talk about fathers for a second. One critique of child welfare law is that it puts a significant burden on mothers while essentially ignoring fathers until they become inconvenient. Two cases out of Florida this month highlight this phenomenon.

In the first case, twin children were sheltered from their mother due to neglect. The father had been out-of-state in prison on drug charges for the twins’ whole life. He met the children only once when the mother brought them to see him while he was on a furlough pass. Once the case was commenced, he appeared at every hearing by phone and called the children during his furloughs — but not while in prison, he said, because he could only make collect calls. After the mother did not comply with her case plan, the Department filed for TPR on both parents. While the trial was pending, the mother died in a car accident. The father then learned that he would be released from prison five days after the scheduled TPR trial. He had a place to live and a job lined up. There children were not in a pre-adoptive home. The Court terminated his rights anyway. The First DCA reversed the termination.

In the second case, a child was sheltered at birth after testing positive for cocaine. The mother was married, but estranged from her husband. The biological father was on the birth certificate. Under the law, this scenario makes the husband the legal father. The family was advised how to fix the paternity issues and the biological father was sent away until he addressed his legal status. He filed a notice with the Putative Father Registry, but took no other action. A year passed, the mother did not comply with her case plan, and the biological father then filed legal motions to establish his rights to the child after TPR was already filed. The Fourth DCA held that the year and a half delay was too long — he had no parental rights because he was not fast enough in legally asserting them.

The problem here is twofold: first that the system was perfectly happy to ignore the fathers until they asserted their rights against a TPR; and second that the fathers appeared content (or at least not incentivized) to let the mothers do all the hard work to get the kids back until they failed. The trial judge in the First DCA case terminated a father’s rights despite no clear plan for permanency for the child — the children would have to build a relationship with either the father or a pre-adoptive family — and despite no apparent effort to actually nurture that relationship for over a year. (The mother, not the State, took the child to see the father on his furlough in Mississippi before the case came in.) The Fourth DCA, in its written opinion, unfavorably compared its bio father’s effort to those shown by the foster parents’ — a poor comparison given that the whole child welfare system is designed to recruit, train, and support foster parents (well, comparatively speaking), whereas the father was dismissed from the case and left to find his way back on his own. The father may have reasonably determined that the best course was to allow the mother to reunify and then reconcile with her and the kids, especially since he himself was not accused of any wrongdoing.

Neither of these cases had to end this way. We can resolve messy paternity issues early with little effort — especially when the legal father is completely absent. We can make concerted efforts to build relationships between fathers and their children, even if they’re out-of-state or in prison. What we shouldn’t do is ignore half of a child’s family.

Here are some resources on doing that:

Engaging Fathers and Paternal Family Members (childwelfare.gov)

Barriers to Father Involvement in the Child Welfare System (fatherhood.gov)

Exploring the bias against fathers in the Child Welfare System (ucdavis.edu)

Let’s talk about the IL Programs and justice

The Third DCA ruled against our clinic yesterday, holding that access to federal Education and Training Vouchers (ETV) could be restricted by the State through the creation of programs with additional eligibility rules. While I disagree with the reasoning of the Court, I’m writing here about the original source of injustice in this case.

Our clinic was retained by an amazing young woman who needed help during her Independent Living years. From the opinion:

Cormier was born on November 11, 1995. She lived in the Bahamas with her mother until she was fourteen years old and then moved to Florida to live with her father. On October 2, 2013, DCF removed Cormier from her father’s care due to alleged physical abuse and domestic violence, and thereafter, she entered the dependency court system. Cormier was sheltered briefly and then placed into the temporary custody of a non-relative caregiver, where she remained for approximately six weeks before turning eighteen. As the hearing on the petition for dependency was scheduled for a date after Cormier turned eighteen, the hearing was never conducted and the dependency case was closed.

Independent Living benefits provide case management support and financial resources to kids aging out of the foster care system to help them be successful, and to help them avoid homelessness, criminal justice involvement, and the host of other bad outcomes that statistics show foster kids endure.  The IL Program has various sub-programs with differing eligibility criteria. The most liberal program is the Extended Foster Care Program, which only requires a young person to age out of care in a licensed placement and participate in school, work, or similar activities. The Post-secondary Education Support Services (PESS) program is the most restrictive — it requires a young person to be adjudicated dependent, age out of licensed foster care, have been in foster care for at least 6 months, and maintain good academic standing in college or vocational school.

Knowing these criteria, certain facts about our client’s case stand out: Her placement in a unlicensed placement made her ineligible for any IL Program even though that decision is largely not up to the child. Statewide, the Department is relying more heavily on unlicensed non-relative placements largely due to the lack of licensed foster placements. In November 2013 when our client aged out, only about 8.6% of children under DCF supervision were placed with non-relatives. In March 2017, that had risen to 11.93% — that’s 8,623 kids who will not be eligible for IL support if they age out.

The fact that her case closed without an adjudication means she would not have been eligible for PESS even if she were in a licensed placement for 6 months. Cases shouldn’t take 6 months to adjudicate, you say? They can if they go on appeal. And the Florida Supreme Court ruled in O.I.C.L. that the appeal of a child who ages out of care is moot. It would not have been moot to this young woman, who is striving to be successful with all of the history and none of the support given to a narrow group of foster kids. Nine-thousand kids in non-relative placements and an unknowable number of kids whose cases languish in the courts will be in her shoes soon.

Florida Supreme Court: no more summary dismissals of private dependency petitions filed by immigrant kids

The Florida Supreme Court issued a 3-1-3 opinion today with the majority ruling in favor of the child and the controlling opinion (i.e, the narrowest reasoning adopted by the most justices) being that trial courts cannot summarily dismiss dependency petitions filed by immigrant children seeking Special Immigrant Juvenile status. In doing so, the opinion echos the concerns of Judge Vance Salter of the Third District that “the recent spate of summary denial orders in the trial court and per curiam affirmances in [the Third District] suggest a categorical rejection of such petitions rather than the usual individualized evidentiary hearings and written findings of fact.”

The controlling opinion also states that the intent of the child to seek a Special Immigrant Juvenile visa is not a basis to summarily deny the petition: “If a child meets the statutory criteria for dependency, then child must be adjudicated accordingly.” The Third District’s determination that the immigrant child petitioner was not “truly” needy without any factual record or evidence was found to be error. The case will be sent back to the trial court for a full evidentiary hearing.

Chief Justice Labarga wrote the majority opinion, in which Justices Pariente and Lawson joined. Justice Lewis concurred in result only, but wrote that while he “cannot agree with the summary nature of the proceedings below,” he is concerned that the SIJ visa procedure transforms dependency courts into an “immigration processing system which is strictly reserved for our federal immigration authorities.” Justice Lewis recommends a legislative fix.

Justice Lawson, the newest member of the Florida Supreme Court, wrote additionally to state that he believes the case is ripe for review (in contrast to the dissent below) because it was clear the trial judge had no intention of permitting an amendment to the petition.

Justice Canady, joined by Justices Quince and Polston, dissented on the grounds that this particular child’s petition failed to state a legal basis for dependency. The dissenters agreed, however, that immigrant children should be given an evidentiary hearing and adjudicated dependent where legally appropriate, and that a child’s intent to seek immigration status is legally irrelevant.

The controlling opinion here does not address many of the substantive issues bubbling in the district courts, including whether maltreatment allegations can be dismissed as “remote” if the child is currently living with an appropriate caregiver. The three dissenting justices approved of this “remoteness” test, with Justice Canady writing that the proper focus is not on the parents’ past abandonment in this case, but on whether the child’s current placement is safe. The four majority justices did not adopt this reasoning.

This case was brought by the Immigrant Children’s Justice Clinic at Florida International University and Baker McKenzie. Congrats to both on a fantastic job! The law clinics at the University of Miami and Florida’s Children First filed amicus briefs in support of the child. And many other firms collaboratively worked on related cases that made this outcome possible.

I should note one more thing: many children had their cases summarily dismissed while this appeal was pending. If they aged out pending their appeal, those kids have no recourse under the Court’s ruling in O.I.C.L. Some of those children will be removed from the country and returned to unsafe homes. The work of seeking justice is far from done.

Florida Supreme Court to immigrant teens: just go away already

florida_supreme_court_building_2011The Florida Supreme Court ruled yesterday that the cases of immigrant children pending appeal should be dismissed as moot when they turn 18, even if the lower court erred when the child was still a minor and even if the error prevents the child from applying for Special Immigrant Juvenile status.

In October of 2014, OICL, a 17-year-old immigrant child in Florida, brought a petition for dependency alleging that his parents had abandoned him and that he had no legal custodian. The trial court, Judge James L. Martz, denied the petition in December 2014 and the matter was appealed to the Fourth DCA. The Fourth DCA ruled against the child and the matter was appealed to the Florida Supreme Court. FLSCT accepted the case in August 2015.

OICL turned 18 in January 2015.

After 13 months, FLSCT ruled that the matter became moot when OICL turned 18. The Court declined to find that the ancillary benefits of a dependency petition (including immigration status) were sufficient to defeat mootness. The Court also declined to find that the matter was capable of repetition yet evading review. Justices Polston, Quince, Canady, and Lewis were in the majority. Justices Labarga, Pariente, and Perry dissented.

The practical result is that any child petitioning for dependency close to their 18th birthday will not be able to seek appellate review. A judge ruling on those petitions will certainly know that when setting the cases, weighing the evidence, and making a decision. Immigrant children of a certain age have just had their right of access to a fair court system severely curtailed.

On August 16, 2016 the Florida Supreme Court accepted a second SIJ case for review, BRCM. In this case, the petitioner is well under 18. The issue in BRCM, and many of these cases, is that judges have become emboldened to sweep immigrant children out of their courtrooms as quickly as possible. In the case of BRCM, the hearing lasted only 8 minutes before the judge had ruled to dismiss the petition — no notice, no witnesses, no trial.

The Florida Supreme Court has the opportunity to clarify that all people who come before the courts are entitled to a fair and impartial hearing, and that violations of due process will not be tolerated just because of the age and immigration status of the petitioner. If it will not reconsider this harmful ruling, the Florida Supreme Court should direct lower courts to accept these cases for certiorari review, or order expedited briefing schedules to ensure further miscarriages of justice do not occur.

Fifth DCA essentially declines to follow Florida Supreme Court on ineffective assistance of counsel

The opinion boils down to this:

Florida Supreme Court: Trial judges must orally advise a parent of their right to file a motion alleging ineffective assistance of counsel after a TPR trial.

Mother: The trial judge didn’t advise me, and my trial counsel (who I tried to fire halfway through the trial) didn’t say anything either. Not even my appellate counsel filed anything until the initial brief.

DCF: Yeah, she’s right.

Fifth DCA: ¯\_(ツ)_/¯

The Fifth District doesn’t offer any legal reason that it can decline to follow the Florida Supreme Court’s clear procedure. The Fifth District points to the length of time the child has been in care as a determinative factor, but it’s unclear what that has to do with ineffective assistance of counsel at a TPR trial. A parent’s right to fair treatment does not depend on when the Department decides to file a TPR petition.

The Fifth also blames the mother’s appellate counsel for not filing a motion to relinquish jurisdiction prior to the briefing. The Fifth District did not need to wait for a motion. The notice of appeal was filed on December 21, 2015. Assuming that the briefing schedule was exactly on time, the initial brief was due within 70 days, or February 29, 2016. The Fifth would then be on notice that the mother was raising an argument based on ineffectiveness and could have relinquished jurisdiction on its own. The answer brief would be due in 20 days later, and a reply brief would be due 20 days after that, Monday April 11, 2016 — also known as 25 days after the Fifth’s opinion was rendered. Under the Florida Supreme Court’s interim rules, the trial court has 25 days to render an opinion on an ineffective assistance claim.

The Fifth therefore could have relinquished jurisdiction for the trial court to hold the hearing and finished this appeal exactly within the time-frames that the appellate rules contemplated an appeal taking. Probably sooner, because at that point the opinion would be a PCA — no written opinion necessary. Given that the mother was 18 years old and the child less than 2, waiting two extra weeks does not seem particularly egregious to make sure nothing went wrong. More time than that is routinely lost in putting together transcripts or giving an attorney an extension because they are out for vacation.

It probably wasn’t clear how an appellate attorney should handle the situation of a parent who didn’t get proper notice in the trial court. The next parent’s attorney who fails to file a motion to relinquish, however, should face ineffective assistance charges or worse. The same goes to the DCF attorneys who watched it happened without filing their own motion, and the judges who stood by and ran out the clock.

Florida Supreme Court issues stay in immigrant juvenile cases

In case you’ve been under a child welfare rock, there has been a storm brewing for the past year regarding the handling of unaccompanied immigrant minors in Florida’s child welfare system. It started in Miami with two cases: BYGM and KBLV. The opinions are worth a read to get a feel for exactly what is going on here.

In August 2015, I posted two oral arguments, without comment because I — along with many others — am working on those cases. The decisions for those two cases came down on December 30, and both were against the children. Those opinions are here: EPN and BRCM. A third opinion I wasn’t expecting also came down: SFAC. Thoughtful dissents by Judge Salter show how these rulings have exploded into dismissals of cases around the state.

In the meantime, another bad case out of West Palm has been accepted for review by the Florida Supreme Court: OICL. It is set for oral argument on February 2, 2016.

Today, we received word that BYGM and KBLV have been stayed by the Florida Supreme Court pending the outcome of OICL.  If you have a private petition dependency case pending in any tribunal and it’s under threat from OICL/BYGM/KLBV, I suggest asking for a stay or abeyance until the Florida Supreme Court can have its say.

I’m providing the BYGM order here for use in your motions.

bygm stay.png

 

Case law update: TPR for medical neglect of child resulting in AIDS; adoption subsidy doesn’t offset child support

The Fifth DCA addresses the question of whether an adoption subsidy can be used to reduce child support obligations. Short answer: no. Tluzek v. Tluzek, — So.3d —- (Fla. 5th DCA 2015).

The Fourth DCA affirms what appears to be an expedited termination of parental rights for medical neglect resulting in a child developing AIDS. C.S. v. DCF, — So.3d. —- (Fla. 3rd DCA 2015).