child welfare, law, and lots of graphs

child welfare, law, and lots of graphs

Category: Case Law Updates

Case Law Updates

An easy guide to new things you can and cannot do in 2015

The future can be a confusing place. I’ll try to make it a little easier to navigate. 

Things you CAN do

Have an evidentiary hearing on whether your administrative action notice actually arrived to you.

Get married in Florida irrespective of your gender. 

Things you CANNOT do

Represent yourself in a dependency matter unless you waive counsel knowingly and voluntarily.

Have DCF pay a pro bono attorney’s travel expenses as a therapeutic service for a child.

Be forced to submit to a pregnancy test in a dependency proceeding without notice and a chance to respond.

Things that are still a mess

The procedures for private adoptions in the middle of dependency cases.

Case Law Updates

Federal suit against Hillsborough child welfare employees allowed to go forward

A federal judge ruled this month that a lawsuit involving the 2012 death of Marie Freyre can go forward, denying various child welfare employees’ motions to dismiss. Judge James Whittemore (Tampa) ruled on December 5 that the mother stated valid claims that the child welfare employees violated her rights under the Americans with Disabilities Act, the Rehabilitation act, section 1983 for violation of her right to care for her daughter, and most surprisingly under section 1985 for conspiracy to violate her constitutional rights. (Note: I was unable to find a public copy of the order online.)

The mother alleges that in April of 2012, the defendants discriminated against her on the basis of her disabilities, failed to implement in-home services that would have allowed reunification, moved her child 250 miles away to Miami without her consent, and prevented her access to her daughter during the trip to Miami in violation of a court order. The child, Marie Freyre, died within 12 hours of her arrival in Miami.

Two things stand out in this order.

First is the survival of the section 1985 conspiracy claims. A 1985 claim requires “(1) a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; and (3) an act in furtherance of the conspiracy; (4) whereby a person is either injured in his person or property or deprived of any right or privilege of a citizen of the United States .” The conspiracy here was based upon staffings, communications, and joint actions taken by various professionals involved in the case, including administrators, CPIs, and State Attorneys. The defendants tried to raise their defenses early, that they were only trying to protect the child’s well-being. The judge left those arguments for a later date:

Taking Freyre’s well-pleaded allegations as true, as they must be at this stage of the case, she sufficiently alleges a class-based discriminatory animus behind Defendants’ actions. While Defendants argue they were not motivated by animus, but by a concern for M.A.F.’s well-being, the only question is whether Freyre’s allegations are sufficient to state a claim under § 1985(3). Freyre has alleged “assertedly benign (though objectively invidious) discrimination” against parents with disabilities resulting in the separation of her family, which is sufficient to state a claim. See Bray v. Alexandria Women’s Health Clinic, 506 U.S.263, 269, 113 S.Ct. 753, 122 L.Ed.2d 34 (1993). 11 11 This determination should not be construed as a comment on the merits of Freyre’s claim.

Defendants further argue that the animus Freyre alleges is directed not at the disabled as a class, but only at physically handicapped parents who are unable to care for their children. Defendants’ attempt to narrow Freyre’s claim is unavailing. As a disabled parent, Freyre states a claim when she alleges a conspiracy by state actors to deny her custody, visitation, and reunification with her child based solely on her disability. See Fitzpatrick v. Town of Falmouth, 321 F.Supp. 119, 124 (D.Me.2004) (allegations of conspiracy between school administrators and town to deny autistic home-schooled child access to public school playground sufficient to overcome motion to dismiss).

Second is the survival of the ADA and RA claims. Freyre alleges that the State discriminated against her as a parent due to her inability to lift the child, sending the child to Miami instead of providing support in her home to help her with daily care.

Freyre has sufficiently alleged at least “indirect” harm flowing from the actions of each Institutional Defendant to satisfy the traceability requirement. For HKI, Freyre alleges that it ceased attempting to find 24–hour care for M.A.F. despite a court order, relying on a statement from Nurse Emerson that HKI knew was false. (Dkt. 71 ¶¶ 50, 54–58). Freyre also alleges that HKI facilitated M.A.F.’s placement and transfer to the nursing home in Miami. (Id. ¶¶ 71–72, 76, 86). While these actions may have only “indirectly” led to M.A.F.’s death, no more is required to satisfy the traceability requirement. Focus on the Family, 344 F.3d at 1273.

The vast majority of cases in child welfare are due to parents’ poverty, substance abuse, or some mental or emotional disability. Current child welfare doctrine requires only “reasonable efforts” by the State to help a parent “remedy the circumstances” that brought the case in. That vague standard creates a race toward the bottom, in that “reasonable” is not defined and in practice becomes “whatever we normally do on cases like these.” The standard also sets the complete end of state intervention (through DCF) as the measure of success, and creates a ground for termination of parental rights if state intervention cannot be ended within a year. Incorporating ADA and RA doctrines into that system could create stronger individual accommodation requirements by the state as a whole and take some of the (often unreasonable) burdens off of impoverished and disabled parents.  The conspiracy doctrines discussed above could  demand responsibility from other state agencies (DCF+APD+ACHA+…) to more actively support families at risk of losing their children due to disability, poverty, or other factors outside of their control and within the orbit of the supporting agencies.

At this stage of the litigation the facts alleged by the plaintiff are assumed to be true while legal issues are debated. Defenses based on whether the acts of removing the child from the home or placing the child in Miami were reasonable or justified are left for later hearings, and the ultimate fate of Judge Whittemore’s legal opinions are unknown until the inevitable appeals play out.

Case Law UpdatesTop Menu

Is an attorney ad litem a guardian ad litem?

This oral argument arises out of a termination of parental rights case in which the trial court appointed an attorney to “represent the best interests of the child.” The Guardian ad Litem Program had announced that it had a conflict and could not represent the child because it was already appointed to the child’s mother, who was a minor in foster care. The mother’s rights were terminated and on appeal she argued only one point: that the law requires the appointment of a guardian ad litem, not an attorney ad litem, for the child.

The question raised by the judges is simple: Is there even a difference between an attorney ad litem and a guardian ad litem? The Department doesn’t see much difference (or that GALs are even that important–“just one of the manifest best interest factors”), and points to the statute that says that either a guardian ad litem or a “legal representative” is allowed. Mr. Joyce, for the mother, however, points out one main difference: AALs are legal advocates, whereas GALs are witnesses (who happen to have party status in Florida).  GALs testify and are subject to cross examination. AALs question witnesses and are bound by the Rules of Professional Conduct. The statute and rules all require a guardian ad litem, not an attorney.

The term “attorney ad litem” is indeed confusing, because “ad litem” means “for the case” and not “for the child.” The term “ad litem’ is added to the word “guardian” to distinguish this type of guardian from a probate or natural guardian who can make decisions in all matters in the ward’s life. When children are appointed attorneys, the suffix “ad litem” seems to redundantly follow. I say redundantly because all attorneys who accept appointments limited to a single case are by definition attorneys “ad litem,” irrespective of the age or capacity of their client.

The role confusion between AALs and GALs has come up on this blog before, for example in the case of the GAL appointed in a family case that was permitted to question witnesses as though she were a lawyer (probably in violation of the law against unlicensed practice of law). And a lot of ink in other fora has been spilled over whether an attorney can be a best interest advocate consistent with the rules of professional conduct, which require direction from an actual client. I’ve always found that particular argument tiring and distracting–we need all hands on deck in the fight against child maltreatment. My preferred debate is over who we should be prosecuting for creating the conditions of abuse and neglect.

What strikes the Third DCA panel as most curious, though, is why the Guardian ad Litem Program is conflicting off of a case where it also represents a minor parent. “This is the first we’ve heard of this problem,” says Judge Lagoa.  The Guardian Program is not there to explain, but their Standards of Operation are clear: It is the Program’s policy to leave it to local offices to decide how to handle the situation. According to the Standards:

4.D. Representation of Related Children. The appointment of the Program to advance the best interest of multiple related children or parents presents no conflict of interest necessitating discharge, in accordance with Rule 4-1, Rules Regulating the Florida Bar.

The GAL must always be open and honest about our past role with children involved in the
case. In addition, every Circuit must resolve how we make recommendations to the court in
the following situations:

1. When the Program simultaneously represents a minor parent and that minor’s
2. When the Program represents a minor child and previously represented the minor
child’s parent and the information from the representation of the parent could now be
used to the disadvantage of the parent;
3. When the Program represents two or more children where the best interests of one
child are incompatible with or in any way contrary to the best interests of another.

Possible resolutions may include: 1) use of pro-bono attorneys or 2) assigning a GAL from a
different circuit, county, or unit. The Circuit may consider additional options based on local
circumstances and resources. The Program strives to assign an active GAL to all children the
Program is court-ordered to represent, within available resources.


The local program, here, used a pro-bono attorney, consistent with its policies.  What underlies the question about how the Program could have a conflict is another question about how it functions on cases. For most of the oral argument, the  Court’s assumption seem to be that the Program’s primary role is to recruit and train volunteer guardians ad litem. An organization with that description would not need a conflict of interest policy if the guardians themselves are autonomous. What is missing from that picture is that the Guardian ad Litem Program recruits and trains volunteers to work the cases to which the Program itself is appointed. The Program takes substantive positions on cases and manages those positions sometimes in conflict with the volunteers who appear before the courts. The Program describes how its team model works in its Standards:

In nearly all cases, the GAL will have first-hand knowledge of the facts of the case. When a conflict arises as to an issue of fact, the team shall defer to the GAL. When a conflict arises as to an issue of law, the team shall defer to the CBI Attorney.

If there is a circumstance when a conflict cannot be resolved within the team, the Circuit Director and Supervising Attorney should be consulted and should work together to resolve the conflict; if necessary, they should consult with the Regional Director and the Chief Legal Counsel. In the rare event that an agreement cannot be reached, the conflict shall be referred to the Director of Operations with legal consultation from the State Director of Legal Services.

There may be times when a GAL strongly recommends an action that is not consistent with state law; in those cases, the report to the court may be written to recognize the GAL recommendation, but point out that under current law, this action would not be permissible.

If the CAC and/or the CBI Attorney believe that it is in the child’s best interest to remove the assigned GAL from a case, the case must be staffed with the Circuit Director and the Supervising Attorney prior to any action being taken. Information regarding the GAL’s advocacy and the reasons for the proposed removal of the GAL from the case must be documented. No GAL shall ever be removed from a case without being informed of their team’s concerns by the Circuit Director and having the opportunity to respond. The decision to remove a GAL from an assigned child is up to the Circuit Director and the decision may not be delegated.


Much ink has also been spilled over whether this is good (the institutional knowledge of the Program plus the enthusiasm of the volunteers results in better best interests recommendations), bad (the politics of a statewide governmental organization with insecure funding negatively affect the positions taken on behalf of individual children), or just baffling (it’s unheard of for a statewide agency to take the place of a party in interest–the child–to a matter).  I’ve long taken the position that it’s all three at different times, but mostly good for the kids the Program works with. The team model was one of the things that drew me to work at the Program when I first started practicing.

In this particular case, the Third DCA affirmed the TPR, holding that while it was definitely error not to appoint a guardian ad litem, the attorney ad litem fulfilled almost all of the same functions and nobody objected during the trial. The philosophical debates over whether an AAL can really be a GAL and whether a GAL can have a conflict were rightfully left for another day.

Case Law Updates

Florida Supreme Court accepts ineffective assistance of counsel case

This is huge. The Florida Supreme Court has granted review in the case of a mother who lost her parental rights at a trial which began with her defense attorney informing the court that he was not prepared to go forward. Oral argument will be February 3, 2015. Briefs are due November 20 and 25. No continuances. The justices granting review: Labarga, Pariente, Lewis, Quince, and Perry.

I’ve already written my opinion on this matter. There’s no good reason to not have a procedure to handle IAC claims in termination cases. Not having one causes a lot of problems and undermines the fairness of the whole process.

Case Law Updates

Defense attorney starts opening argument with “I’m tired and not prepared to do this trial,” courts still uphold TPR

Let’s say you’re a parent facing termination of your parental rights in Florida. The following cumulative acts by your attorney would not be considered ineffective assistance of counsel:

  1. filing an untimely motion for a continuance to investigate prospective fathers; [actually the sin here was probably assuming that a judge would grant an unopposed motion for continuance]
  2. admitting he was exhausted and not prepared to go forward during opening statements;
  3. erroneously believing the mother was still a minor when the child was sheltered;
  4. allowing the introduction of hearsay in the form of previous judicial reviews and testimony concerning the mother leaving a sobriety program and being arrested for prostitution in Georgia, the child not being allowed to live with the mother at a halfway house, and the child’s behavior changing after he resumed visitation with the mother;
  5. failing to file a witness list and opposing the mother calling a witness on the ground it was not in the mother’s best interest;
  6. failure to cross-examine the guardian ad litem or object to the guardian’s report on timeliness and hearsay grounds;
  7. failing to move for a judgment of dismissal at the conclusion of the Department’s case;
  8. failing to pursue on redirect examination the mother’s claim that a relative placement was available for the child;
  9. misleading the court during closing argument that the Department did not provide a qualified case manager for the mother, who had mental health issues; and
  10. failing to object to the trial court’s failure to inform the mother of the availability of advocacy services under section 39.502, Florida Statutes (2011).
J.B. v. Dep’t of Children And Families, 1D13-4346, 2014 WL 4976981 (Fla. 1st DCA 2014).

A lot is made about how ineffective assistance of counsel claims would delay permanency for a child, would be vulnerable to strategic manipulation by clever defense attorneys, and aren’t “authorized by the rules.” Let’s put those to rest:

First, dependency and TPR cases take years to resolve. The state doesn’t start talking “right to permanency” until it is strategically advantageous for them to do so. How many resets happen because DCF didn’t prepare the JRSSR or case plan, or didn’t follow up on a referral, or didn’t serve someone they had to serve? And how much faster could cases go if DCF invested in service providers that weren’t hours away from the people that needed to go to them? DCF should be equitably estopped from ever making a timing argument until they get their house in order.

Second, don’t side-eye defense attorneys for being strategic: all attorneys are strategic. By not supporting an IAC claim, you are making a policy decision that mistakes made by DCF deserve infinitely more time to correct, while mistakes by the parents’ attorney are not worth even considering on the record. If a DCF attorney screws up, he or she will either get a week to fix it or screamed at by a judge. Accumulate enough mistakes and maybe he or she will get transferred or quit and go make more money doing something else. If a defense attorney screws up, the parent can’t see their child ever again and that attorney gets their dispo order for JAC and back on the wheel. There’s no process in place currently that identifies poor defense lawyering as a negative, especially when permanency (read expediency) is the controlling metric: bad defense attorneys can actually speed up permanency in all the wrong ways.

Finally, the rules argument is not very compelling: if the constitution requires due process, it must be real and not illusory. Any court could have created a prophylactic rule by now. The opinion even suggested one. When an attorney starts his opening arguments with “I’m so tired, I can’t think straight, and I’m definitely not prepared to go forward” that should cause everyone in the room to pause and be worried that they are treading into dangerous ground. Currently that territory isn’t even remotely dangerous for the state. It is a rational strategy for the state to ram the TPR through and see what happens on appeal.The DCA is correct about one thing: we need a procedure in place so that attorneys on both sides will know what the minimum expectations are and will not lure each other into error.  The Supreme Court should issue a rule. The criminal rule cited is a good start.

(I do want to say congratulations and condolences to that attorney for pushing through, though.)

Case Law Updates

Did DCF really try to TPR a woman for seeking custody of her child?

The First DCA reversed a TPR out of Duval County this week. The posture of the case is important:

In May 2011, DCF took the then two-year-old child into protective custody and placed him in foster care. In July 2011, the trial court adjudicated the child dependent. In April 2012, the trial court created a permanent guardianship, with the foster mother serving as the child’s permanent guardian, and terminated supervision by DCF. In September 2013, the mother filed a motion to reopen the dependency case, wherein she sought to regain custody of the child. At the hearing on the mother’s motion, DCF opposed the reopening of the case, the trial court inquired about the appropriateness of adoption, and the court granted the mother’s motion for the sole purpose of DCF filing a petition for termination of parental rights. DCF subsequently filed such petition on the grounds that the parents abandoned the child, the parents failed to complete the case plan, adoption was the least restrictive means to achieve permanency, and the termination was in the child’s manifest best interest.

Because of confidentiality rules, I take the facts in opinions as I find them. And it’s hard not to read those facts and see the immediate human toll that DCF’s lack of principled prosecution caused this family. And by family, I mean the mother, guardians, and child together. DCF agreed to close a case with permanent guardianship, presumably because grounds for TPR did not exist; then sixteen months later it opposed the reopening of the case; then it reversed course and filed for TPR, forcing the family through a trial; and then it reversed again and conceded error on appeal almost a year after that. I cannot imagine the sleepless nights and anxiety of wondering what would happen, all for nothing. 

If you want legalistic analysis, (jargon ahead) this is a classic Least Restrictive Means Doctrine case. The LRM Doctrine, formally speaking, is judicially derived from (Substantive) Due Process and requires (a) some showing of harm to the child and (b) that termination of the parent’s rights is the least extreme (“restrictive”) remedy available. That second prong has been whittled away in a number of cases involving the availability of relative placements (which I strongly disagree with on the policy basis that guardianships should be the second preferred permanency goal behind reunification because that’s how families outside of child welfare function when parents need help.) In practice, the LRM Doctrine provides a way for courts to preserve parental rights even when the technical elements of the statute have been met. LRM is more or less a constitutional equitable doctrine. LRM cases tend to involve the Department failing to work with a parent in good faith prior to seeking the termination of the parent’s rights or a parent for whom it just doesn’t seem fair to terminate their rights (yet).

The doctrine is also implemented, more irritatingly, as a strategy to avoid creating wider precedent on TPR grounds and to keep from wandering into the murky “manifest best interests” factors. As an equitable principle, it can almost always be framed as “on the facts of this case,” which limits its precedential value. That’s what appears to be happening here. The DCA could have reversed based on the child’s best interests (happy in the home, happy visiting the mother and sibling, no harm from the current arrangement, little benefit from TPR) or the fact that “irregular” visits by the mother do not constitute abandonment, especially when she was actually seeking custody when the TPR was filed. But those would have required parsing the facts too closely, a task that appellate courts often pretend they are loathe to do, and would encourage future hairsplitting on number of visits, degree of happiness, etc. LRM cases can have a good outcome without the burden of complicated analysis. The Court can point to the fact that the child is happy and safe, and the Department has see-sawed in its positions throughout the litigation. Therefore, “given the circumstances of this case,” TPR is not the least restrictive means to protect the child from harm.  Read: leave well enough alone and go home. 


Case Law Updates

Incarcerated parents and the child welfare system

The Second and the Fifth courts of appeal recently issued opinions involving incarcerated parents. In the Fifth’s case, a child was adjudicated dependent and the disposition order forbade any contact between the incarcerated father and the child. In the Second’s case, a mother petitioned to terminate the rights of an incarcerated father. In both cases, the courts of appeal reversed the decisions of the trial courts.

Incarcerated parents cause a lot of consternation for the child welfare system. So much so that there are three separate grounds for terminating the rights of an incarcerated parent: (1) when the parent will be in jail for a substantial period of time, (2) when the parent is in jail for certain types of crimes, or (3) when the court determines that TPR is in the child’s best interest. It should be noted that this originally required a showing of all three, but the “and” was changed to an “or” in 1999. This change created the only “best interests” TPR ground in Florida law. All other TPR grounds require a showing of some overt act or failure to act by the parent prior to the court considering the child’s best interests. When a parent is in jail, the child’s best interests alone can be the deciding factor, even when the reason and length of time the parent is in jail is unrelated to parenting or children (think tax evasion, lobstering out of season, civil disobedience, politically biased sentencing laws). The usual response is that getting arrested and convicted is the overt harmful act, but consider all the analogs to the alleged harm posed to children from a parents’ incarceration that we wouldn’t consider TPR appropriate for: hospitalization, living or working far away from the home, military service. It appears we’re doubling down on a disparate impact phenomenon instead of actually assessing harm. 

Professor Anthony C. Musto has recently argued, in Up the Slippery Slope: The Need to Advise Criminal Defendants that Their Pleas Can Lead to Termination of Their Parental Rights, that failure of an attorney to advise a defendant of the risks of TPR should be ineffective assistance of counsel similar to failure to advise about immigration consequences. And many legal and social work scholars have argued that we should be promoting and supporting family connections during incarceration as part of the rehabilitative process. Isolating parents from their families and communities during incarceration increases the risk of recidivism upon release, which the negatively affects the families and communities the parents came from and return to. 

Finally, the argument is often made that jails are simply no place for children. The fact that visiting a parent in a prison waiting area is not in the child’s best interests demands a change to the waiting area and conditions of confinement, not a termination of parental rights. DCF and DOC have some work to do. Both of the Florida cases listed above dealt with this fact: in one case the mother allegedly kept the child away from the incarcerated father, in the other case the state attempted to do the same. Both decisions were rightly looked upon with scrutiny. 

Case Law Updates

Third DCA to DCF: Not every injury requires state intervention

This post continues a look at legal doctrines, as opposed to pure administrative incompetence, that limit the State’s ability to intervene in families’ lives due to suspected abuse, abandonment or neglect. Thus far, since the publication of Innocent’s Lost by the Miami Herald, we have seen the Second DCA (Lakeland) refuse application of the Imminent Risk doctrine, and the Fourth DCA (West Palm Beach) do the same with the Sibling Nexus Doctrine. Yesterday, the Third DCA (Miami) took its turn at yet another risk prediction heuristic: the Unknown Perpetrator Doctrine.

At its strictest the Unknown Perpetrator Doctrine in dependency cases states that, if a child is egregiously abused while in the exclusive custody of the parents, the Court can find the child abused even if the State cannot prove which parent committed the act. The doctrine derives from the language of the Egregious Abuse ground for termination of parental rights, which says that the parent is at fault if he or she either inflicted the abuse or knowingly failed to prevent it, and from the concept of circumstantial evidence. If the injuries were severe and obvious and only the two parents had access to the child, one of them inflicted and the other failed to protect. It is irrelevant under the statute which parent did which.

The Unknown Perpetrator Doctrine begins to unravel when you add in third parties. The access to the child by third parties–such as relatives, day care workers, or people at a park–during the time frame of the injuries has in some cases caused courts to reverse TPRs on the basis that you can no longer say that each parent falls into one of the two fault-worthy roles. The Doctrine also loses strength in TPR cases when the injuries themselves are not obvious.

In the Third DCA’s case yesterday, the 11-month-old child had two bruises and a loopmark after a weekend with the father. Numerous people had access to the child during that time, and there was no evidence presented (or at least no facts recited in the opinion) that the father did or failed to do anything in particular. The evidence was limited to the injuries to the child plus the fact that the child was in the father’s custody for the weekend.

The Third DCA reversed:

Based on the definition of “harm,” there is substantial, competent evidence that H.C.(2) was harmed, as it is undisputed that she not only had significant bruises, but she also had a “loop mark” that is consistent with being hit with an instrument such as an electrical cord or a belt. However, the record is completely devoid of any evidence that the Father caused H.C.(2)’s injuries, allowed anyone else to inflict H.C.(2)’s injuries, or has ever hit or physically disciplined H.C.(2) or H.C.(1). Moreover, during the weekend, H.C. (2) was exposed to numerous individuals besides the Father and the Mother, including the Father’s then-wife, her two children, the maternal grandmother, and several of H.C.(2)’s cousins. Thus, the Department failed to establish by a preponderance of the evidence that the Father inflicted or allowed someone else to inflict these injuries on H.C.(2). We therefore reverse the order adjudicating the Children dependent as to the Father.


These injuries are not legally considered “egregious.” And notably the opinion does not even mention the line of cases that favorably apply the Unknown Perpetrator Doctrine to egregious abuse TPRs. Instead, Judge Rothenberg looks only at the dependency statute and finds that it requires proof of a willful act by the parent. In a situation where the injury was not obvious and the parent did not have exclusive access to the child, there is not even circumstantial proof of a willful act.

At first this feels wrong, because a loop mark is obviously inflicted by a human. But we don’t know if that loop was done by a parent, an adult relative, or just kids at the park using a jump rope as a helicopter. Child welfare policy is the constant struggle between our desire to protect (certain) children and our concept of ordered liberty in which families are entrusted to care for them first. Based on the evidence, this child needed an ice pack and a maybe a band aid. If the Department could prove this child was at prospective risk of harm, I have to assume it would have. The Unidentified Perpetrator Doctrine only makes sense when limited to the most extreme cases of injury, or else it risks elevating every mysterious bruise or scratch into a basis for state intervention. We don’t have enough foster homes in the world for that.

Case Law UpdatesNews & Notes

Michigan Supreme Court Rules One-Parent Doctrine Unconstitutional

Take note Florida: The Michigan Supreme Court ruled that removing a child from an uncharged parent is unconstitutional.

We accordingly hold that due process requires a specific adjudication of a parent’s unfitness before the state can infringe the constitutionally protected parent-child relationship. In doing so, we announce no new constitutional right. Rather, we affirm that an old constitutional right—a parent’s right to control the care, custody, and control of his or her children—applies to everyone, which is the very nature of constitutional rights. Because the one-parent doctrine allows the court to deprive a parent of this fundamental right without any finding that he or she is unfit, it is an unconstitutional violation of the Due Process Clause of the Fourteenth Amendment.

In re Sanders, — N.W.2d —- (2014).

Florida has a similar one-parent doctrine. Once a child is adjudicated dependent based on the actions of one parent, both parents can be required to participate in services. An uncharged parent can obtain custody, but only if he or she passes a home study. Home studies are notoriously subject to interpretation by the person or agency conducting them, and can prevent a child from going to a home that the child would not have been removed from in the first place. For example, a child would not be removed for living in an apartment that is too small, but a home study could be negative on that basis and require the child to go to foster care.

Florida should take another look at its one-parent doctrine.

The Michigan opinion is an explicit validation of Professor Vivek Sankaran’s 2009 law review article Parens Patriae Run Amuck: The Child Welfare System’s Disregard for the Constitutional Rights of Non-Offending Parents. Put that one in the pile of law review articles that actually mattered.


Case Law UpdatesNews & Notes

Florida Fifth DCA Approves Second-Parent Adoptions

In a long-awaited opinion, the Fifth District Court of Appeal (Daytona) last week held that second-parent adoptions, the adoption of a child by a gay parent’s partner, is within the jurisdiction of the courts and cannot later be challenged by the parents. The case–In re Adoption of D.P.P.–involves an unmarried lesbian couple who conceived with an anonymous donor, changed one partner’s name so that the child and couple would have the same name, and then filed a petition for adoption by the partner who had not given birth. The petition was granted and, after years of raising the child together, the couple separated and the birth mother sought to set aside the adoption. The circuit court agreed, and the case went on appeal.

The history of favorable Florida gay adoption cases began in 2010 with In re X.X.G., in which the Third DCA (Miami) held that Florida’s categorical ban on “homosexual” individuals adopting children was an unconstitutional violation of equal protection. The State of Florida chose not to appeal that decision, and it has stood as the law in Florida ever since. The next related case, T.M.H. v. D.M.T., in 2013, involved a lesbian couple who had used assisted reproductive technology to have a child. That couple also raised the child for years and then separated, with one partner attempting to permanently end the relationship between the child and the other partner. Again the trial court granted the request and the Florida Supreme Court reversed, holding that when a couple intentionally has a child, raises that child, and holds themselves out as the parents of that child, it violates Due Process and Equal Protection to then declare that one of those parents had no parental rights at all. The Court wrote “It is not the biological connection, per se, but rather the assumption of parental responsibilities which is of constitutional significance.”

Four years after In re X.X.G., the idea of legal gay adoption is so settled that X.X.G., the case that made it so, is not even mentioned in the opinion concerning second-parent adoptions. And, since there was no state action denying or attacking the adoption and no statute categorically forbidding it, the issue of Due Process and Equal Protection need not come into play either. Gay adoption is here in Florida. We are now moving into the next generation of questions: how does gay adoption work in practice?

In re Adoption of D.P.P. answers that question in two very important ways: it holds that second-parent adoptions are within the general jurisdiction of the circuit courts over child custody issues; and it holds that a parent who participates in a second-parent adoption is legally estopped (precluded) from coming back later and challenging it. Gay petitioners for adoption have the same access to courts and finality of judgments as anyone else.

Both D.M.T. and D.P.P. also begin to answer what happens when the litigation narrative changes from one of an oppressed population seeking rights vis a vis the state, and instead that population begins to invoke these new rights in their dealing with one another. Both cases suggest the legal frameworks are solid enough that no individual litigant is going to be able to roll them back. But both cases also show that gay people have fought for and won equal access to a system that is deeply flawed. The next generation of questions will be how the presence of gay families in the system has transformed that system, hopefully for the better.