We fully agree with the C.N. panel’s well-reasoned conclusion that breach of ano new law violation condition, standing alone, is insufficient to terminate parental rights. But, we disagree with the conclusion, in dicta, that no such condition may be imposed in the first place, or that doing so violates the separationof powers doctrine.
This is great news. I know that in Miami, at least, the opinion of C.N. (out of the Second) caused an immediate flurry of case plan amendments ripping “no new law violations” out of case plans. The Fifth does a good job of explaining why that’s not necessary or logical.
I will add a few thoughts. I stand by my description of case plans as “due process machines.” They put a parent on notice of what is expected of them and, at a TPR trial, those are the things that can reasonably be addressed as points of failure. Case plans, however, contain lots of instructions and tasks that some case managers describe as “boilerplate” but I like to describe as “essential to a well-functioning system.” Those tasks include maintaining contact with the case manager, updating the case manager on changes of address, participating in various staffings, signing various releases. “No new law violations” sometimes falls into this category of administrative tasks: parents in jail have almost no access to the services they are supposed to be participating in. Being arrested for a willful act is equivalent in most cases to moving out of state or declaring you’d like to take summer off from services. Such behavior does not expedite permanency for the child.
But should a single violation of that task be grounds for termination? Probably not. The definition of “substantial compliance with the case plan” has almost nothing to do with the individual tasks, except that failure to participate in or successfully complete the services is prima facie evidence of continuing abuse/abandonment/neglect under 39.806(1)(e). The question of substantial compliance is whether the parent has made sufficient progress that it is safe to return the child to the parent’s home. Failure to sign medical releases may have no bearing on the safety of the child. Being arrested for a crime may have no bearing on the child’s safety either.
But they may. The excess of C.N. was that it appeared to say that it was never a permissible case plan task to forbid a parent from committing further violations of law. “Never” is an overly restrictive word in the necessarily case-by-case workings of dependency law. In a case where the parent’s case plan was created to remedy abandonment due to repeated incarceration, it would be perfectly natural to have a case plan task forbidding willful violations of law. In fact, it would be the core measure of compliance regardless of whether it was in the case plan or not.
Compare it to substance abuse. Should one relapse be considered a material breach if the parent was otherwise making progress? No. Should one violation of law be considered a material breach if the parent was otherwise stabilizing her life? No. Should the thirtieth law violation be considered a material breach? Possibly. Should a parent be put on notice that willfully committing future violations of law may be grounds to find material breach? Definitely. The Fifth got this one right.
As predicted, the case involving foster parent intervention and a brief accusation of social eugenics that I wrote about last week has ended with an anticlimactic per curiam affirmance. To wit: the opinion (or lack thereof).
Florida’s Third DCA is now live broadcasting oral arguments. I tried to make a recording of yesterday’s, but failed. Hopefully next time a dependency/child related case comes up I’ll be more prepared.
Here were the issues in Z.S.M. v. DCF:
Was there competent and substantial evidence to support a TPR where the mother had mental health problems and unresolved substance abuse and had not complied with services?
Can a foster parent join the TPR petition and thereby become a party with appellate rights?
On the sufficiency of the evidence question, all three judges appeared likely to PCA. Judge Schwartz was the usual antagonist of the Department, asking them to point to the evidence of harm to the child in the record, as the child had been removed from the mother at a few weeks old. When the Department failed to give a sufficient answer, Judge Schwartz responded, “Three generations of idiots is just enough, right?” The Department agreed. Had the attorney recognized the reference, she might have though twice. It’s obviously a paraphrase of Justice Holmes’ closing line from Buck v. Bell, the 1927 Supreme Court case that said that forced sterilization of “incompetents” was constitutional. DCF is a social eugenics program? This is not the first time someone has levied that charge, though it usually doesn’t come from the bench.
Regarding the intervention of foster parents, the panel seemed inclined to allow it, probably also without opinion. Judges Emas and Fernandez pointed to the statute that says that “any person” can file a TPR petition and the rule that says the petitioner is a party (it would be a weird system where the petitioner was somehow not a party). Judge Schwartz had some constitutional reservations about the whole thing, as the foster parents would fall into the category of a person who “is informed” of allegations and “believes them to be true.” For him this seemed to encroach too far into parental rights, and he’d raise a standing bar to keep these cases from even being brought. Forget if you can prove a child was abused–if you didn’t see it with your own eyes, you wouldn’t be able to do anything under Judge Schwartz’s interpretation. Judges Emas and Fernandez did not seem inclined to join this position.
The appellant is the mother of two children, K.B. (age nine at the time of the proceedings below) and A.V. (age three). She appeals an order denying her motion for reunification with K.B. in a circuit court dependency case following her substantial compliance with the tasks in her case plan. She has also appealed orders approving a general magistrate’s report finding that custody of K.B. should remain with her father (with visitation by her mother), terminating supervision by the Department of Children and Families (DCF), and terminating the circuit court’s jurisdiction. This case requires us to consider the applicability of different and apparently inconsistent statutory provisions relating to reunification,sections 39.522(2) and 39.621(10), Florida Statutes (2010).
This case is disappointing not only because it’s wrong, but because it is incomplete. The Third DCA has failed to address any of the following questions:
Why doesn’t the more specific standard in 39.521(3)(b)2 apply here? This section directly addresses the disposition procedure for when there’s a non-offending parent, and states “The standard for changing custody of the child from one parent to another or to a relative or another adult approved by the court shall be the best interest of the child.”
What should we make of In re G.M., — So.3d —-, 2011 WL 5061545 (Fla. 2d DCA 2011) (decided October 26, 2011), which applies BOTH 39.621(10) and 39.522(2) to the exact same factual situation, thus creating a endangerment + best interests standard? That seems to render the statutory scheme both consistent and fair.
What about B.C. v. Dep’t of Children & Families,864 So.2d 486, 491 (Fla. 5th DCA 2004) (“The non-offending parent’s presumptive right to custody is mandatory and not subject to a separate determination of the child’s best interests.”).
Why wasn’t the case plan goal of “reunification with parents” perfected with placement with the nonoffending father? There are no goal options under 39.621 that would avoid this situation–there’s no goal of “maintain and strengthen” or “rehabilitate the offending parent for the purposes of visitation or time sharing”. After this case, lower courts will be dissuaded from offering a case plan at all to the offending parent because they will be forced to spring the child back to that parent’s full custody regardless of any change in situation in the interim. Closing cases with one nonoffending parent might save a lot of money but will also likely result in a lot of re-abuse.
What about the effect on the child? She’s ripped from her home that she doesn’t want to leave just because her mother finally got around to finishing a parenting class. This is contrary to everything we know about child development, psychology, and humane treatment. The system is supposed to promote permanency and stability, not have a sword of Damocles hanging over the head of every child in the home of a nonoffending parent.
The evil of this decision is that it treats a nonoffending parent as though they were any old temporary custodian or foster care provider. The Due Process implications of that alone are huge. Neither the statute nor common sense required this outcome. The Third should grant a rehearing, and the legislature should create more clarity and flexibility in permanency options for future courts.
News has traveled at this point that FSU Professor Paolo Annino has filed a petition in the First DCA placing the issue of a child’s right to counsel squarely before the court. In his case, the child is fighting a TPR petition that is brought by DCF and supported by the GAL. The child moved for either DCF or the JAC to pay for a bonding assessment, because the 8-year-old child was (obviously) indigent. The trial court’s ruling:
This Court finds that the minor child does not have a constitutional right to appointed counsel in a termination of parental rights trial and agrees with the legal position taken by both DCF and the JAC. Accordingly, the minor child is not entitled to have the JAC pay for litigation expenses such as expert evaluations, etc. for the purposes of preparing for trial. This Court further finds that DCF is not required to pay for expenses that are not for the purposes of provided recommended services for the minor child, but are litigation expenses requested on behalf of the minor child.
Trial Court Order, In re S.S., (October 4, 2011).
Professor Annino’s cert petition challenges the denial of funding on three grounds: Due Process (if the child has a due process right to counsel, then JAC has to pay), Access to courts (failing to fund counsel denies access), and Right to privacy (a new Florida right to analyze right to counsel under since the last time such a case was decided). It will be interesting to see if the final analysis of the case hinges on the rights of the child as hoped or instead slips into separation of powers or something completely unexpected.
The mother appeals an order terminating her parental rights. She argues the court erred in denying her motion to dismiss the amended petition, which failed to allege reasonable efforts to preserve and reunify the family, that termination was not the least restrictive means of protecting the child, and that the mother was not responsible for the lack of contact with the child. We find no error and affirm.
There are some interesting things to note about this case. First, this was an expedited TPR for abandonment, which DCF actually dismissed and the child herself adopted and prosecuted. Since there is no mention of the GAL Program except in the Appellee line, it’s not clear what role they played, but they apparently did not side with the child. This is a very simple testament to why kids deserve legal representation—the child’s legally valid position was dismissed by everyone in the room. I applaud this part of the case.
I take issue with the substantive reasoning, however. This case offers a picture of what direction LRM analysis is taking (if it’s going in any coherent direction at all, of which I am doubtful). LRM has gone through many forms over the years. First, it was a pressure release valve to prevent the automatic termination of non-victim siblings. Then it detoured briefly in the early 2000s when defense attorneys managed to convince a few judges that they had to consider the possibility of a permanent guardianship prior to TPR. The legislature and court eventually tamped that out. More recently, it has taken what I think is its purer form: the question of whether the parent has received procedural fairness and a reasonable opportunity to remedy the circumstances that caused the dependency.
What constitutes a “reasonable opportunity to remedy” is in flux. LRM should not even be needed in cases under 39.806(1)(e), because the statutory definition already requires reasonable efforts by DCF. The egregious abuse cases are generally accepted as not requiring an opportunity for rehabilitation, which is also consistent with the statute and therefore a meaningless addition. Abandonment cases, however, pose an analytic problem because those cases split down the middle: sometimes expedited TPR is ok, sometimes it isn’t. Case law has dealt with this in no less than three ways.
(1) “Egregious abandonment.” Chapter 39 defines “egregious conduct” as “abuse, abandonment, or neglect” that is deplorable by a normal standard of conduct. This implies that there are levels of abandonment and some of them are appropriate for expedited TPR. In practice, abandonment is more of an all-or-nothing proposition. Either you were able and had a relationship and provided support, or you didn’t. The statute provides no guidance on what a non-deplorable method of abandoning your child would be. Some attorneys have dithered about the reasons for the abandonment, but the reasons should get subsumed into the “ability” requirement, and not into grading whether, for example, abandoning your child to do humanitarian work is a difference that matters.
(2) Focus on the parent’s efforts or amenability. There is a set of cases that focuses on whether the parent was “knocking at the door,” attempting to make contact with their child, and was thwarted. See C.A.T., out of the Fifth DCA. This would probably also be more appropriately analyzed under the “ability” requirement, but instead often gets lumped into a least restrictive means analysis. If they were trying so hard, something must have made them unable to actually have a relationship.
(3) Focus on pre-existing relationship. Finally, there are a few cases that look to the original formulation of LRM and say that it is meant to re-establish a bond. Where there was no bond, there is no LRM violation in expediting TPR. Note this theory seems to eliminate the LRM requirement in a large category of cases—for example, newborns removed directly at birth.
L.W. falls uncomfortably into categories (2) and (3). The mother in L.W. did make some efforts early on, but eventually gave up. However, the court acknowledges that she was thwarted by the father and other circumstances. The Court says the mother has no current bond with the child, but ignores that she raised the child for eight years: the previous line of cases stress that LRM’s goal is to re-establish the bond through services. C.A.T., for example, finds this fact very important in denying TPR of a father. We know services could have been attempted with the L.W. mother because the trial court implicitly found that the relationship wasn’t harmful to the child by dismissing the no-contact order. Finally, the only testimony cited regarding support was that the mother did not have the financial ability to provide for the child—which should completely bar a TPR for abandonment.
It’s cases like these that reinforce Judge Sawaya’s opinion that LRM is a meaningless and superfluous requirement. As Judge Sawaya argued in T.P., “The ‘safe re-establishment of the parent-child bond’ is one of the factors the trial court must consider under section 39.810, particularly section 39.810(3). Therefore, the least restrictive means test is subsumed in the factors that must be found by clear and convincing evidence to exist under section 39.810. … I, therefore, conclude that application of section 39.810 renders the less restrictive means test obsolete, unnecessary, and meaningless.” T.P. v. DCF, 860 So. 2d 1084 (Fla. 5th DCA 2003) (J.Sawaya specially concurring; reversed on other grounds) (order of sentences inverted for dramatic effect).
Assuming that abandonment was proven, analyzing this case through MBI instead of LRM makes the outcome easier to understand. There is a permanent placement available; the mother admitted she couldn’t financially care for the child; the pre-adoptive placement is caring for the child’s needs, including the trauma she suffered with the father; there is no current relationship with the mother and thus no harm from TPR; the mother’s capacity to ever be reunified safely with the child is limited by her own problems; and the child clearly wishes not to return to the mother. The only factor against TPR might have been the recommendation of the GAL, which could easily be set aside on the weight of the other factors.
Maybe one day abandonment will be put on that egregious abuse list and taken out of LRM world altogether. Until then, good luck making sense of it, even when the outcome seems to be right.
The 2011 Supreme Court Session kicked off yesterday. Family law is not much dealt with at the federal level, and this session is no exception. However, here are a few cases (and their OA dates) that may have some impact on families, and children and youth in and out of foster care:
10/3/11 – REYNOLDS v. UNITED STATES. The Oyez Project at IIT Chicago-Kent College of Law. 03 October 2011 (sex offender registration laws under SORNA).
11/1/11 – MINNECI v. POLLARD. The Oyez Project at IIT Chicago-Kent College of Law. 03 October 2011 (“Can employees of private prison operators be sued for violating the constitutional rights of inmates?”).
11/30/11 – FAA v. COOPER. The Oyez Project at IIT Chicago-Kent College of Law. 03 October 2011 (mental and emotional damages for misuse of information under the Privacy Act).
12/6/11 – WILLIAMS v. ILLINOIS. The Oyez Project at IIT Chicago-Kent College of Law. 03 October 2011 (“Can an expert witness be called as a stand-in for a lab analyst who actually did a test on criminal evidence, but did not appear at the trial?”).
no date set – HOLDER v. GUTIERREZ. The Oyez Project at IIT Chicago-Kent College of Law. 03 October 2011 (imputing parent’s legal residence status to children).
no date set – COLEMAN v. MARYLAND COURT OF APPEALS. The Oyez Project at IIT Chicago-Kent College of Law. 03 October 2011 (“Did Congress constitutionally abrogate states’ Eleventh Amendment immunity when it passed the self-care leave provision of the Family and Medical Leave Act?”).
It is completely contrary to the legislative goals of the UCCJEA for Florida to assert jurisdiction to superintend the custody, shared parental responsibility, and visitation where the child is not and has never been a resident of this state. The mere fact of conception in this state is not such a tie to permit the courts of this state to exercise control in the face of express statutory authority precluding Florida from asserting jurisdiction.