child welfare, law, and lots of graphs

child welfare, law, and lots of graphs

Category: Case Law Updates

Case Law Updates

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.

Case Law Updates

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.

Case Law Updates

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 Updates

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).

Case Law Updates

Florida Supreme Court accepts two dependency cases for review

Last week, the Florida Supreme Court accepted two dependency cases for review. I’ll write more on both later, but here is a quick overview:

The first is O.I.C.L. v. Florida Department of Children and Families. This case involves a circuit split in how immigrant children are adjudicated dependent. Briefing should be complete by December 7, and oral argument will be February 2, 2016. The district court opinion is here.

The second is M.M. v. Florida Department of Children and Families. This case involves the ability of the court to close a case while limiting the visitation rights of a non-custodial parent. Briefing is due by December 8, 2015 and no oral argument is set.  The district court opinion is here.

Case Law Updates

Fourth DCA splits kids of father who has two years left in jail

The Fourth DCA issued an opinion yesterday that troubles me. The case involves the father of three children. Because of the mother’s drug use, the oldest and youngest of his kids were placed with an aunt. The middle child was placed in foster care. Unsurprisingly, the father was able to maintain contact and a relationship with the relative-placement kids, but was only able to speak to the child in foster care twice, despite calling regularly. The Fourth reversed the TPR as to the two kids with whom he was able to maintain a relationship, and affirmed as to the child in foster care.

The TPR ground was Florida Statute 39.806(1)(d), which permits the termination of a parent’s rights if

1. The period of time for which the parent is expected to be incarcerated will constitute a significant portion of the child’s minority. When determining whether the period of time is significant, the court shall consider the child’s age and the child’s need for a permanent and stable home. The period of time begins on the date that the parent enters into incarceration.

The Fourth points out that a previous version of this ground focused solely on the length of time of incarceration as a percentage of the child’s remaining childhood. The current version looks at the substantive effect of the incarceration on the child. This substantive analysis leads to this result:

As to P.S., the state proved by clear and convincing evidence that the child is thriving in his foster family’s care and does not wish to see his father. The father has not been able to maintain much contact with P.S. Thus, the father’s incarceration has been significant in that P.S., at a young age, has become bonded with the foster family to the exclusion of D.S. The foster parents wish to adopt P.S. To deprive him of this continuing relationship with his foster parents would prevent him from achieving a permanent and stable home. Thus, the court’s conclusion that the state proved a ground for termination is supported by competent substantial evidence. Moreover, for these same reasons, we conclude that termination was both in the manifest best interest and least restrictive means to prevent harm to P.S.
As to D.S., Jr. and K.S., the state has not proved this ground for termination. The children reside in a stable home with D.S.’s sister, their aunt. They are not in the custody of the Department or in foster care but in the care of a relative. Thus, to leave them in this placement would not allow them to languish in foster care. D.S. has maintained as close a relationship as his incarceration has allowed him to maintain with the children, and D.S ., Jr., in particular. While the children are bonded to the aunt and uncle, they still know that D.S. is their father and have regular interaction with him, including regular phone calls, letters, and visits. When D.S. is released from prison, D.S., Jr. will be eleven and K.S. will be six. Because they are with relatives, they will still be in contact with their present caregivers even when D.S. is reunited with the children.
D.S. v. Dep’t of Children & Families, No. 4D14-3144, 2015 WL 1810315, at *5 (Fla. Dist. Ct. App. Apr. 22, 2015)

It’s the same father, the same amount of time in jail, and the same efforts to maintain a relationship with all three children. The only difference were the placements, both of which were good, and the fact that one answered the phone when he called, and the other did not. I have difficulty seeing how this is the correct legal result.

The Fourth DCA over the last ten years has adopted a very substantive review of terminations of parental rights. The Fourth looks closely at the quality of the relationship between the parent and child, and what level of harm the parent poses to the child. In this particular case, the Fourth sees the positive relationship between the children and father as barring a TPR. The Fourth also lambastes the guardian ad litem and Department’s witnesses for basing their positions on conclusory determinations that the children placed with the aunt “need permanency.”

But that is exactly what the Fourth then does for the child in foster care. There is notably nothing in the opinion that suggests the child will be harmed by waiting for the father to get out of jail; and nothing that says that the foster parents would kick the child out of their home if they could not adopt. The facts appear to be only that the child is happy there and they are willing to adopt.

This case raises all sorts of constitutional questions. Under Equal Protection, a child with a parent who does “everything right” (which this one presumably did, because his TPR was reversed as to two children) should not be subject to permanent separation from his family based on the type of placement that he found himself in.  Under our Due Process jurisprudence it is hard to understand what harm the termination of the father’s rights protects the middle child from. If it is the harm of waiting to reestablish a relationship with his father, then TPR only exacerbates that by requiring the child to now wait until he is 18. And no consideration of the harm from being separated from his siblings appears to have been given at all, though presumably it was a factor considered in the manifest best interests findings. If the TPR is meant to protect the child from the harm of not having “permanency” there’s nothing in the opinion that suggests this was a concern of the child at all–permanency is usually more a concern of the system, which seeks to close cases sooner rather than later, than it is for the affected kids. The guardian ad litem spoke for the child’s best interests, but the same GAL was taken to task for a lack of sufficient investigation as to the other two children.

It appears to me that the key to this case was not harm posed to the child from the parent but the prospect of a better life offered by the foster parent. Any person in jail is now subject to TPR if their child is living with someone else. This isn’t consistent with our due process jurisprudence, and hearkens back to a day when TPRs were based solely on best interests. That is not a road we want to go back down.

Case Law UpdatesTop Menu

Another PCA on how to close a case

This one is very technical, too. The court terminated supervision and left the child with an uncharged father. Mr. Colbert argues that the court should have weighed the child’s best interest in determining whether to close the case. (The trial judge apparently said on the record that it would be in the child’s best interest to keep the case open, probably so that the child could receive services from the Department.) Says the Department: “Dependency is not meant to continue forever when the child is with a parent who can take care of the child.”

The Third’s questions suggest that it believes the mother can reopen the case whenever she wishes and therefore there’s no harm to her rights here. Mr. Colbert points out that the standards in family court and the lack of services from the Department make the situations not entirely equitable.

The Third PCA’s.

Case Law UpdatesTop Menu

Post-blogging a case on violations of withholds.

I’m a little behind in my video posting. This appeal is very technical. Kevin Colbert is arguing on behalf of a mother who received a withhold of adjudication. At some later time, she was found intoxicated (without the child present). The court violated the withhold and entered an adjudication and removed the child(ren) from her custody. Mr. Colbert argues that there should be a requirement that there be some nexus between the alleged non-compliance with the case plan and risk of harm to the child. He points out that case plans have numerous tasks in them–like find a job or learn English–that are not reasonably related to child safety.

Judge Emas suggests that unreasonable case plan tasks should be objected to at disposition, not at the violation hearing. I have the benefit of knowing that the case was PCA’d. It probably didn’t help that being found intoxicated certainly sounds like the type of thing that would put a child at risk, unlike “failing to learn English.” If a case comes up where a withhold is violated because of a truly non-sensical or ancillary task, the court will have to look much more closely at this practice.

Case Law Updates

Third DCA reverses judge on caregiver funds, caregivers still win

The Third DCA issued a reminder yesterday that dependency court judges can’t do just anything in the best interest of a child. The case involved DCF’s obligation to provide financial support to people who take custody of children they’re related to. This helps support kids in their families, instead of placing them out with strangers. This is where it gets technical. There is a statute instructing DCF to come up with rules on how it will pay out the funds. DCF created the rules, which limited the funds to certain classes of relatives. The dependency judge did not believe DCF’s rules were consistent with the statute–specifically they were too narrow in who they considered eligible–and the judge held that the the rules were invalid.

The Third DCA says that trial judges can do this, but only if the agency’s rule is clearly based on no statute at all. This DCF rule was based on a statute. Therefore the proper course of action, says the Third, would be for the relative to file an administrative complaint through the Administrative Procedures Act, not file a motion for review in the dependency court. With an APA complaint, you get a hearing in front of a hearing officer who is an employee of DCF, and the resolution can take several months. With the judge, you obviously get a much faster order.

There’s an interesting side story to the disagreement about the scope of the caregiver program. Last legislative session this judge and this issue (may have even been this case) were part of the inspiration for the Legislature to expand the Relative Caregiver Program to a wider class of relatives and even nonrelatives who are caring for a dependent child. Therefore no families were harmed in the issuance of this reversal.