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Case Law Updates

No qualified immunity for baseless investigations & safety plans in the Sixth Circuit

When you’re being investigated for a crime, you have rights. You have the right to remain silent, and the right against unreasonable search and seizure of your property. If you are arrested, you have the right to an attorney, a trial where you can confront the witnesses against you, and afterwards the right to an appeal. We value these rights because we know from centuries of experience they are necessary to limit the abuse of state power, even if they are often insufficient when needed most.

If you’re investigated for child abuse, however, your rights are far less clear. You typically do not have the right to remain silent; you may never find out the identity of the person who called in the initial abuse report against you; and your children, home, and person can be searched based on that anonymous report with no clear way of challenging the search in the moment, and no way to limit the use of anything found later if the original search was unreasonable. You are not arrested at the end of a child abuse investigation, but your children can be. We call it removal, but it’s state custody just the same. And your failure to cooperate can lead to your children’s removal all by itself. Florida Statutes include in the definition of “harm” to a child when a parent:

Makes the child unavailable for the purpose of impeding or avoiding a protective investigation unless the court determines that the parent, legal custodian, or caregiver was fleeing from a situation involving domestic violence.

§ 39.01, Fla. Stat. Ann.

Courts and policymakers have become more aware of these dynamics and their constitutional implications. An upcoming article by Josh Gupta-Kagan at University of South Carolina School of Law adds a new dimension to this story: the use of voluntary safety planning in lieu of removal. Writes Gupta-Kagan:

While informal custody changes [through safety plans] can sometimes serve children’s and families’ interests by preventing state legal custody, this hidden foster care system raises multiple concerns, presciently raised in Supreme Court dicta in 1979. State agencies infringe on parents’ and children’s fundamental right to family integrity with few meaningful due process checks. Agencies avoid legal requirements to make reasonable efforts to reunify parents and children, licensing requirements intended to ensure that kinship placements are safe, and requirements to pay foster care maintenance payments to kinship caregivers.

America’s Hidden Foster Care System, upcoming in 72 Stanford Law Review 841 (2020).

To my knowledge, Florida DCF doesn’t publish stats on how many families are under safety plans. We can get a rough estimate by comparing the investigation numbers to the removal numbers. From February 2019 to February 2020, Florida DCF received 359,329 intakes. Of those, 247,406 were accepted for investigation (69%). Of those, 21,420 investigations (9%) resulted in verification for at least one child in the investigation. There were about 36,589 kids in those verified investigations, but only 15,422 children (42%) were actually removed.

So what happened to the 21,000 kids who were verified maltreated but not removed that year? I would guess, for many of them, safety plans. Done cooperatively with the parents, they can help support a family through difficult times. Done coercively, they can separate a family indefinitely without any meaningful recourse. That brings us to the case.

Holly Schulkers ate some chips

This case begins in February 2017, when Holly Schulkers of Kentucky ate some chips and went to the hospital for scheduled induced labor. It ends with her being coerced into a safety plan that required supervised contact with her children for months, she alleges, with no factual or legal basis whatsoever. The story in between is the worst form of standard child welfare investigation procedure.

Here’s a little of that in-between. Holly tested “presumptively positive” for opioids, but said she had taken some of her daughter’s prescription cough medication and had eaten poppy seed chips — specifically, according to a news story on the case, Everything Bagel chips. The hospital never did a confirmatory test, but let her breastfeed and noted no problems in her care of the baby. They did, however, order an umbilical cord test just in case and called in the social worker. The social worker notified child welfare, and the baby stayed in the hospital an extra 72 hours to watch for signs of withdrawal. Apparently none came.

Both a second urine test and the umbilical cord test would eventually come back negative. The child welfare people would know that. But still, they insisted on a safety plan: Holly Schulkers was to have no unsupervised contact with any child, and if she violated that restriction then all of her children would be removed and the case would be brought to court. Note the order there — first removed, then reviewed.

The Schulkers hired an attorney who advised Holly to take a hair follicle test. It was also negative. The attorney advised child welfare that the Schulkers could not be held to a safety plan with no factual basis. Child welfare, meanwhile, went to the older Schulkers children’s school and interviewed them alone in a room, resulting in them coming home scared that their mother would be arrested and they would be taken to foster care.

There are lots of other details in the opinion, such as a supervisor calling Holly to accuse her of heroin usage, which she denied; a nurse stating that Holly showed her the bag of chips; and a supervisor telling the investigator to release the Schulkers from the safety plan, but the investigator never doing so. The result was a two-month safety planned separation from her children. And a lawsuit.

Holly Schulkers sued the social workers

It is more accurate to say that the entire Schulkers family, kids included, sued the social workers. If the facts above seem very heavily against the child welfare professionals, that’s for a reason. Prior to taking the case to trial, the defendants moved for dismissal and summary judgment. In a dismissal, the court assumes that all the pleaded facts are true. In a summary judgment, the court takes all conflicting facts in whatever light is most favorable to the other party (the Schulkers in this case). If both motions are denied, then the case goes to trial. More often, though, the case goes to settlement. To sum up the assumed-true facts:

(1) The hospital staff believed the pre-delivery test of Holly’s urine was a false positive and were permitting Holly to continue to breastfeed the baby;

(2) Holly’s second confirmatory urine test results were negative; and

(3) the results of the umbilical cord testing were also negative.

Therefore, the court notes, “Plaintiffs allege that Defendants did not have any plausible suspicion that the Schulkers’ children were subjected to abuse or neglect at the time they conducted the interviews.” This isn’t the case of an investigation based on an anonymous source or flimsy evidence. This is a case about an investigation based on no evidence at all after the doctors determined the drug tests were negative. The question is whether state actors who engage in baseless investigations can be forced to go to trial and defend their actions, or whether they are protected by the constitution from being sued in the first place.

The defendants’ arguments for summary judgment were not particularly interesting. The decision notes a few times that the defendants kept inviting the court to view the facts in the light most favorable to them, which is not how summary judgment works. There was clearly a dispute about the evidence, and disputes about evidence go to trial.

The motion to dismiss, though, would mean no trial at all. State agents are cloaked in sovereign immunity, which significantly limits their ability to be sued for mundane, everyday governmental mishaps. To permit a lawsuit, the courts must consider whether the state agent violated the person’s constitutional rights and whether the right that was violated was “clearly established” in the law. The state officials have to be on notice that what they’re doing is a constitutional violation. That usually means some prior case has already ruled on similar facts or legal principles. That also means you hope that your case isn’t the first.

But this one was. Surprise.

The Sixth Circuit ruled

The court started by acknowledging that the prior case law in the Sixth Circuit wasn’t clear on the question of what basis is required for children to be detained and questioned by child welfare professionals. The Supreme Court, however, has given the circuit courts discretion to address the constitutional question in the first instance when necessary to “promote the development of constitutional precedent,” and “promote clarity in the legal standards for official conduct, to the benefit of both the officers and the general public.” That’s what the court did.

Interviewing kids in school

First, the court found that the children were clearly “seized” as the term is understood under the Fourth Amendment. They were in a closed room, alone with a government official, and not free to leave. The social workers did not try to argue this point. That seems wise, given their age, but other courts around the country have not been as sure about whether a child is seized if questioned while at school, where they are already, in a way, seized from their parents’ custody by the state. (It seems like sitting in a classroom for social studies and being held in the principal’s office for a custodial interrogation are not the same thing, but I’m not a federal judge.)

The court then reviewed a few competing legal standards for whether a seizure for questioning is reasonable — the same type of analysis that goes into probable cause and stop-and-frisk cases — and found that none of the standards would render the facts here ok. In legal speak, once the state knew that the drug tests all were negative, it “did not have any significant interest in interviewing the children.” At the very least, a social worker “must have reasonable suspicion of child abuse before conducting an in-school interview without a warrant or consent.”

In the Eleventh Circuit, which includes Florida, a somewhat similar situation to the Schulkers’ occured in Loftus v. Clark-Moore. In that 2012 case a father filed a private petition for dependency against the mother and then did not like the onslaught of investigation by DCF that his petition invited. He sued the state, alleging, among other things, that the questioning of his children at school without his consent was a violation of the Fourth Amendment. The Eleventh Circuit held that there was no clearly defined right against the questioning of children at school. In the Eleventh Circuit “a state official may seize a student at a school so long as the seizure is ‘justified at its inception’ and is ‘reasonably related in scope to the circumstances which justified interference in the first place.'” For the Loftus father, it was justified by his own dependency petition.

A jury will have to determine whether the social workers who questioned the Schulkers actually had reasonable suspicion at the time they interviewed the kids. The real facts are typically much messier than the assumed true ones. And this doesn’t mean that investigators can’t question children — it just means they need reasonable suspicion, parental consent, or a court order. That’s really not that much to ask the state to comply with prior to locking children in a room and grilling them about their parents. (See Shanta Trivedi’s The Harm of Child Removal.)

Involuntary safety plans

The Schulkers also brought suit for violation of their Fourteenth Amendment right to parent their children. They argued two violations here: one was substantive, one was procedural. Both were accepted by the court.

The substantive right was easy. Parents have a right to parent their children, and the state has a duty to protect those children. The balance of parents’ rights gives way when the state has reason to believe the children are maltreated. The whole child welfare system lives in this balance. But in this case, at least under the assumed facts, the state had no reason to believe the children were maltreated at all. Under the assumed facts, the hospital called the case in and later determined the drug test was a false positive. The state’s interest in the Schulkers family ended there.

The state tried to argue that a safety plan for supervised contact during the investigation did not cause a deprivation of rights because it was not a removal or termination. But the court didn’t bite. An order from a state agency to have only supervised contact with your own kids for an indefinite period of time is an infringement on your right to freely parent. If done inappropriately, that can be unconstitutional.

The Eleventh Circuit has only issued one opinion related to parental rights and child welfare safety plans. In Maddox v. Stephens, out of Georgia, a medically fragile child was released by the hospital to a paternal grandmother who was trained to provide care. The mother was going to be trained but was booted from the hospital after an altercation. The case worker quickly drafted a safety plan for the child to remain with the grandmother while trying to figure out which county to file a deprivation petition in. The Eleventh Circuit held that the facts didn’t shock the conscious: first, because the state had no control over the hospital releasing the child; and second, because permitting someone who wasn’t trained to have custody would have been worse. The safety plan was actually based on safety. The case provides no guidance on how the court would rule on a safety plan entered with no factual basis.

Back to Kentucky, the arguments on procedural due process were next. The Schulkers argued that they did not voluntarily enter the safety plan because they did so only based on the threat that the children would be removed if they didn’t. That doesn’t sound wrong — warning you about the legal consequences of your actions is not a threat — but in this case it wasn’t true. The evidence, at least at this stage, was that the state had no intention of removing the children. A supervisor even told an investigator to release the family. So, why did the social workers require the safety plan? The Schulkers say to draw down federal dollars for the case.

Even more interesting is the argument that the Schulkers had no meaningful way to challenge the plan except to violate it and risk having their children put into foster care. That’s not due process. The family repeatedly requested for the safety plan to be dissolved and were repeatedly told no even after a supervisor approved releasing them. The defendants say the Schulkers could have filed a “service appeal,” but there is nothing in the record to indicate anyone ever told them that at the time and some evidence that an investigator gave them info on a different procedure that would not apply until after the children were deemed abused. The court did not rule on the constitutionality of the actual process — it ordered a trial to determine whether the family had a meaningful way to challenge the safety plan or not. The assumed true facts were that they did not.

And that’s the next step of this saga. Though the named parties here are the social workers, the real defendant is Kentucky. The parties might go to trial, but more likely they will settle the case for some reasonable amount of money and, hopefully, a commitment from the Commonwealth to update its procedures to formalize the process for safety plans. That might include automatic expiration dates, a chance for formal administrative or judicial review, and a clear statement of rights. It might also include a commitment to support policy change that would clarify the procedure for the temporary detention of children for questioning. Other states should probably look at their laws, too. Given the expansion of pre-removal safety plans, this lawsuit could very easily travel.

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Case Law Updates

Man has rights to children terminated for being on Miami time

This one is stupid and should never have happened. A father was 51 minutes late to his TPR trial because he had car problems. He showed up right after the judge entered a default against him. He moved to set the default aside, and it was denied. He appealed and apparently nobody conceded error because it took a written opinion from the Fourth DCA to fix it.

I note that the appellate case number is a 2019 case. It is April 2020 for one more day. They could have conducted a TPR trial against him every week since then. The only time you hold on to a default that tightly is when you know you’re going to lose. What a colossal waste of time.

M.B., v. Department of Children & Families, 4D19-3631, 2020 WL 2060285 (Fla. 4th DCA Apr. 29, 2020).

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Case Law Updates

Third DCA bans preemptive surrenders

The Third District Court of Appeal in Florida issued a surprising opinion last week in D.M. v. Department of Children & Families. The case involved a child born in 2007. The Mother signed a surrender of her rights in 2010, but no TPR was ever entered. The child was eventually placed back with her. Ten years later, she refused to pick the child up after a Baker Act, and he was sheltered once again.

A year later, DCF filed a petition to terminate both parents’ rights. It alleged the grounds of abandonment, failure to comply with the case plan, irrespective of services, 12-of-22 months, and three-or-more removals. On the second day of trial, the child’s mother executed another surrender. The judge conducted a colloquy and accepted the surrender, over the child’s objection that it was not in the child’s best interest to terminate her rights. The trial continued and after hearing evidence the judge terminated both parents’ rights.

Let’s acknowledge for a second the value of having an attorney for the child here. Without the child being represented, the judge would not have heard the full weight of the child’s position that the mother’s rights not be terminated. The Department, guardian ad litem, and the mother were all in agreement. The person who had to live with the decision the longest was not, and their attorney translated that position into legal action. Sure, in the end the judge granted the TPR, but after a much more deliberative review than would have occurred if the child had not had counsel. The appeal is not about that, though. The court acknowledged in a footnote that the child had an interest in family integrity and his due process rights were protected through his attorney and the ample process involved.

The opinion is actually about the mother’s surrender. The Third District held that the final judgment on the mother’s termination must make “findings of fact specifying the act or acts causing the termination of parental rights.” The language is right from the Juvenile Rules on consents in TPR cases. Those findings must go beyond the parent’s consent and justify the underlying facts that support the termination of their parental rights. The court likened it to a criminal plea, which must be made on some factual basis of an actual crime. It remanded back to the trial court to make those findings, likely by stipulation from the parties if everyone agrees (but it appears the child does not).

The opinion is explicitly based on a Fifth District opinion from 2003. See C.B. v. B.C., 851 So.2d. 847 (2003). In that case, the mother filed a private TPR petition against the imprisoned father, who was alleged to have committed sexual abuse. To avoid the egregious details of the petition in the final judgment, the father executed a surrender. The trial judge ordered the mother to draft a final judgment based solely on the father’s surrender. The Fifth District held that the Juvenile Rules require, when a parent consents to a TPR, that the underlying facts be incorporated.

The holding doesn’t sound crazy, until you think through the implications. Many parents surrender early in a case, long before DCF files a petition to terminate their rights. In Northeast Florida, for example, a certain judge has been known to talk parents into surrendering at the shelter hearing. D.M. seems to hold that you cannot do that. If there is no other ground for a TPR, then there can be no independent factual basis to support a surrender. There won’t be an independent basis in most cases until a parent has at least attempted a case plan, adding months to a case that nobody benefits from.

I think the Third’s opinion gets the law wrong because the Fifth got it wrong. Under Chapter 39 and the Juvenile Rules, there are two distinct forms of legal consent at play here: (1) a parent’s surrender of the child to the Department and consent for subsequent adoption, and (2) a parent’s consent to a petition to terminate their parental rights. They are not the same thing.

A surrender to the Department is an independent ground for a TPR. If the surrender is executed prior to the filing of a TPR, then the only ground in the petition is likely, but not necessarily, the surrender itself. The parent’s surrender waives all future notice and therefore the TPR goes through on the basis of the surrender alone. In these scenarios, the consent is given to DCF for the adoption, but the parent is never even noticed for an arraignment at which to take a plea.

The second type of consent is the legal plea that occurs after the filing of a petition against a parent. This consent must be a response to a legally valid petition. In dependency law, the options are deny, consent, or admit. Just as you cannot plea to a crime with no factual basis, you cannot consent to a TPR petition that is not legally sufficient. If you want to get TPR’d that badly, you can surrender. They are not the same thing. The court’s ruling that surrender is equivalent to consent and must be accompanied by other grounds effectively nullifies the provision that surrenders are independent grounds for TPR.

And that’s where the Fifth District got it wrong back in 2003. The father in C.B. did not consent to the petition. In fact, he surrendered to create a new ground for TPR because he specifically disagreed with the allegations in the original petition. The criminal analogy is not that he would be consenting to something without a factual basis — instead, he was accused of one crime, came to court, punched the bailiff, and then asked for his first charge to be dismissed because he’s going to jail anyway.

In more legal terms, the father engaged in a form of unilateral stipulation. It’s a very common trial tactic: you stipulate to a witness’s testimony or an expert credentials because you believe the effect of their testimony will hurt far worse than the substance of their testimony. But this was unilateral stipulation to the extreme: a petitioner in a TPR case only needs to prove one ground, but a petitioner still has the right to prove their whole case.

In a criminal case you cannot plead to a misdemeanor to preclude the state from going forward with felony charges. In a civil case you cannot admit negligence to preclude a plaintiff from going forward with their intentional tort claims. The legal claims, if proven, have different legal effects. And the same is true in dependency: an involuntary termination can be automatic grounds for a future case involving a different child. A voluntary surrender cannot.

So, the trial court in C.B. erred by dismissing the mother’s other grounds once the father strategically created a new one. The appellate court in C.B. then erred by looking to the consent language for a remedy (“let’s just make the final judgment list all the bad stuff”), when the appropriate resolution would be a ruling on whether a court can halt a trial once one ground is proven (“let’s still give her a chance to prove the bad stuff”). Because the father in C.B. didn’t really consent, there could be no stipulated facts for the final judgment language. They were going to trial regardless.

Alternatively, the Fifth District could have considered whether a parent can surrender a child not to the Department and not for subsequent adoption. In C.B., the mother argued that she was standing “in the shoes” of DCF for the purposes of accepting the surrender, but her argument was backwards: the father couldn’t surrender because she’s not DCF whether she wanted to accept it or not. Maybe we don’t want parents to just be able to surrender their rights and walk away, child support being a right of the child and all. It is not surprising that C.B. has only been cited one other time in 17 years, and not even for the legal principles at play here.

So C.B. was wrong on the law, and D.M. was wrong for following it, but I’m not very upset about the result. I have never been a fan of preemptive surrenders by parents. The father in C.B. appears to have been gaming to prevent public record of a heinous act. (He had already managed to get a no contest plea in criminal court.) But preemptive surrenders most frequently happen on the worst day of a parent’s life. They are often a result of the Department inviting a parent to trade the surrender of one child in exchange for leniency on a case plan for another (or some future) child. These decisions are fraught with problems, and too frequently result in a child just getting orphaned into foster care with no real plan.

Admittedly, the Juvenile Rules do not make any of these distinctions very clear and in fact they seem to conflate pre-filing surrender and a plea of consent to a petition. The rules never align with the statutory language that the parent’s consent during surrender is to the child’s placement with DCF for adoption. That may be worth someone looking at more closely.

It’s worth noting that even on a surrender the court still has to find that the termination is in the child’s manifest best interests (a lengthy analysis of the child’s circumstances) and the least restrictive means to protect the child from harm (a legal analysis to determine whether the parents’ rights were properly protected). It sounds like the court did that here. The law allows preemptive surrenders whether I like them or not. Maybe that should change.

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Case Law Updates

Florida child welfare case law bonus post!

The Florida Supreme Court issued a child welfare opinion, so it seemed like a good time to do a case law review. Here we go…

What guardians ad litem don’t do

The Florida Supreme Court addressed the issue of whether the appointment of a guardian ad litem on a dependency case tolled the statute of limitation on a civil suit based on injury to the child.  The answer: no, because guardians ad litem have no authority to file civil suits.

Twin children were (allegedly) injured at the hands of the biological mother while she was under the care of developmental disability support services. The children entered foster care and were eventually placed in a permanent guardianship with their grandparents. When the grandparents learned of the injuries, three years after being appointed permanent guardians, they filed suit against the agencies involved. The agencies moved to dismiss the suit as barred by the four-year statute of limitations.

The Florida Supreme Court held that, because a dependency guardian ad litem has no authority to file a separate lawsuit on behalf of a child, the four-year limitations period for filing a suit was tolled until the child’s grandparents were appointed as permanent guardians. D.H. v. Adept Cmty. Services, Inc., SC17-829, 2018 WL 5660595 (Fla. Nov. 1, 2018). 

For all you Latin lovers, the term “ad litem” translates to “for the suit.” Litem is the accusative singular of the word lis, which is a feminine third declension noun that means lawsuit, quarrel, or strife. It is the root of the English words litigate, litigation, litigious, you get the point.  It is the actual word in the legal phrase lis pendens, which means “suit pending.” If you’re appointed to multiple lawsuits for the same person/child and want to be grammatically snobbish, you could call yourself the guardian ad lites. I wouldn’t.

Singular Plural
Nom. lis lites
Gen. litis litum
Dat. liti litibus
Acc. litem lites
Voc. lis lites
Abl. lite litibus

Te gratissimum.

What guardians ad litem do do

Apparently they prevent DCF from falling on swords. The Fifth District affirmed the TPR of parents despite DCF’s concession of error. The GAL Program argued the TPR for material breach of the case plan was proper. The Fifth held that the trial court properly considered a father’s lack of efforts on a previous case plan when determining whether he was likely to comply with the latest one. W.D. v. Dep’t of Children & Families, 5D18-2241, 2018 WL 5603041  (Fla. 5th DCA Oct. 5, 2018). 

Count to six

The statute is really clear on this one: cases stay open for at least six months of supervision after reunification. The Fifth District reversed a TOS order that was entered two months after reunification. Dep’t of Children & Families v. J.F., 5D18-3091, 2018 WL 5729086 (Fla. 5th DCA Nov. 2, 2018).

A move towards substantive compliance

The district courts are not very consistent on the question of what constitutes substantial compliance. The Fourth District affirmed the TPR of a mother who argued that she had remedied the circumstances that brought the case in by finding appropriate housing. The operative holding is that “[m]ere completion of services is not equivalent to substantial compliance with a case plan.” A bit of explanatory dicta expands that:

Moreover, it is important to acknowledge that what is initially recognized as a cause for sheltering children is more often than not a symptom of a larger underlying problem which—by definition—must be addressed. Here, the mother’s poor decisions relating to the children prior to DCF intervention were a side effect of her own trauma-based issues. This much was evident by the time the case plan was established. Further, the evidence at trial established as much in that the psychologist transparently linked the mother’s mental health issues with her ability to parent.

C.B., the Mother, v. STATE OF FLORIDA, DEPARTMENT OF CHILDREN AND FAMILIES, 4D18-1732, 2018 WL 5733438 (Fla. 4th DCA Oct. 31, 2018).

TPRs have to be clear and convincing 

The Third District affirmed the denial of TPR and grant instead of a dependency ruling. The appeal arose out of an egregious conduct TPR petition against parents of a child with severe insulin-dependent diabetes.  The Third affirmed, noting the trial court’s finding that it had to “consider the possibility that this is a case of a lack of clear communication with the medical professionals perhaps due to a language barrier or a case of some other complex mental health issue that was left unexplored by the Department of Children and Families.”
As an interesting side-note, the trial court permitted an attorney for the hospital where the child was treated to be present during the trial. The hospital’s doctors testified in the trial. The Third held that this was error, but harmless in this case. Termination proceedings are closed to the public.

 

Due process roundup 

And finally a bunch of cases that could have easily been avoided.
The Third District reversed an adoption by foster parents in which DCF failed to give grandparents notice. The grandparents had been actively involved in the case and — it appears — were left off of the filings that would give them notice that an adoption petition would be considered by the court. Berenyi v. Florida Dep’t of Children & Families, 3D18-922, 2018 WL 5624250 (Fla. 3d DCA Oct. 31, 2018).
The Fourth District quashed a defective order for psych eval of a parent. G.M. v. Dep’t of Children & Families, 4D18-2398, 2018 WL 4909827 (Fla. 4th DCA Oct. 10, 2018).
The Third District reversed a shelter order that was entered at a hearing without the parent’s counsel present. M.K. v. Dep’t of Children & Families, 3D18-1802, 2018 WL 4761795 (Fla. 3d DCA Oct. 3, 2018). 

 

How long do dependency appeals take?

I’ve been keeping track of how long appeals take for a few months and the numbers are very stable. Half of dependency appeals I’ve reviewed took 124 days or less from filing to opinion. Most cases resolved in month 4 or 5. If your appeal goes into month 6, it’s getting long. By comparison, half of non-dependency cases took 292 days or less, with a much wider range. Only 9% of dependency appeals won, compared to 13% of appeals in general.
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Case Law Updates

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.

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Case Law Updates

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)

 

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Case Law Updates

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.

Categories
Case Law Updates

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)

Categories
Case Law Updates

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.

Categories
Case Law Updates

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.