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Category: Case Law Updates

  • Can you Seek TPR of Some Siblings but not Others under LRM? Yes.

    In challenging the final judgment terminating her rights, appellant mother claims that the trial court’s finding that termination was the least restrictive means of protecting the child from harm, as required by Padgett v. Department of Health & Rehabilitative Services, 577 So. 2d 565 (Fla. 1991), was not supported by competent substantial evidence. In particular,…

  • First DCA Hammers DCF on Failure to Prove Harm

    “[T]o support a finding of dependency, the parent’s harmful behavior must pose a present threat to the child based on current circumstances.” C.W. v. Dep’t of Children & Fams., 10 So.3d 136, 138 (Fla. 1st DCA 2009).“[I]n the absence of actual abuse, abandonment, or neglect, a finding of  dependency can be made if prospective abuse, abandonment, or…

  • Pro Se Mother Wins TPR Appeal

    The record shows that on March 30, 2010, the trial court denied an identical petition to terminate her parental rights filed by the Children and Families. Principles of collateral estoppel dictate therefore that only such conduct as may have occurred between that date and the January 10, 2011 filing of the present petition may be considered. See Donahue…

  • Consenting to your own dependency petition: “charade-theatre of the absurd”

    First, we see no acceptable way for one to file a petition, acquiesce to the allegations of that petition, and thereby secure judicial relief. This is not a case or controversy and not, therefore, a basis for court action. The respondents base their position on the statutory language providing that “any … person with knowledge of…

  • Failure to believe vs. failure to protect

    Regarding sex abuse: The mother admitted at the hearing that she does not believe her husband abused their daughters and does not believe she or the children need therapy. The mother also testified that she would like the father to move back into the family home with her and the children. Finally, the court-appointed psychologist…

  • Fifth DCA on Right to Counsel and ICWA

    The Fifth DCA (motto: Last but Not Least!) has ruled as follows: Indigent parents get court-appointed counsel in private chapter 39 TPR cases. T.M.W. v. T.A.C., — So.3d —-, 2012 WL 591671 (Fla. 5th DCA 2012). And… Failure to follow ICWA may be raised for the first time on appeal. G.L. v. DCF, — So.3d —-, 2012…

  • Second DCA Dodges 39.806(1)(l) Retroactivity Question

    I quote: Because DCF was required to prove only one ground for termination, we do not need to decide whether the trial court correctly relied on section 39.806(1)( l ) as an alternative ground for termination. See § 39.802(4)(a), Fla. Stat. (2010); cf. A.H. v. Dep’t of Children & Families, 63 So.3d 874, 877 (Fla. 1st DCA 2011). Section 39.806(1)( l ) has an effective date of July 1,…

  • Fifth DCA Stands by P.S. on 39.507(7)

    While the issue is pending in the Third DCA, the Fifth DCA is standing by its interpretation of 39.507(7) that no prospective findings can be made on a second parent. Assuming, in the present case, we were to treat the hearing conducted as that which was required under 39.507(7)(b), the trial court found Father did not…

  • How will the Third DCA Handle 39.507(7)?

    Someone once asked the GAL Program whether it ever takes a position on appeal contrary to DCF’s. Here’s one of those cases. Ignore the technical difficulties–you wouldn’t believe what I went through to get this recording.  Court: Florida Third District Court of Appeal Judges: Ramirez, Salter, Schwartz Attorneys: Ilene Herscher for Father D.A.; Karla Perkins…

  • Bonding Assessment Writ Denied by First DCA

    Remember the bonding assessment writ that was filed in the First DCA? The one where the child was asking for an evaluation to show the level of attachment with the mother, and where JAC refused to pay, saying that children have no right to counsel in TPR cases? Yeah, that one was per curiam denied, four…