child welfare, law, and lots of graphs

child welfare, law, and lots of graphs

Category: Case Law Updates

Case Law Updates

Second DCA rules against DCF on imminent risk of harm. Was DCF being strategic at the expense of future cases?

Remove everything that has no relevance to the story. If you say in the first chapter that there is a rifle hanging on the wall, in the second or third chapter it absolutely must go off. If it’s not going to be fired, it shouldn’t be hanging there.

—Anton Chekhov

Let’s continue our look at legal doctrines that limit the State’s response to allegations of child abuse, abandonment, or neglect, with a recent case out of the Second District, J.P. v. DCF.  The Father, J.P., was living with his children at his sister’s house. For some reason that the opinion omits, he was arrested and the police found an unsecured firearm. The arrest charges were eventually dropped, but the dependency court found the children at risk of harm because the Father had caused the children’s welfare to be at risk by leaving the gun around where the children could reach it. J.P. appealed, and he won because, the Court said, the police confiscated the gun and therefore the risk of harm had abated.

The legal doctrine that led to the reversal is called imminence. Under Florida dependency law, the State can intervene in all cases where children have been abused, abandoned, or neglected, and some cases where children are at risk of abuse, abandonment, or neglect. This second category of cases is called “prospective abuse” or “prospective neglect.” In these cases, the children haven’t been harmed yet–there are only risky conditions that make harm possible.

There is no bright line rule for what level of risk courts will tolerate before they allow the State to intervene. In fact the case law is all over the place, offering little guidance other than “imminent means more than just possible”.  Courts have found imminent risk due to drug addiction, anger management problems, prior dependency cases with open case plans, untreated Bipolar disorder, and leaving a child in a halfway house. On the other hand, courts have declined to find imminence even when parents picked their children up from school drunk, came to work with black eyes from domestic violence, sexually abused other children, and had long histories of substance abuse. A task for another day may be looking at how much the imminence assessment is based on actual evidence of risk and how much is based on prejudice and bias for and against certain conditions and persons.

Imminence as a legal issue is even contentious among jurists. Chief Judge Shepherd, of the Third District, has extensively written against imminent risk as a basis for dependency, dissenting where he can and concurring “dubitante” where he feels bound by stare decisis. In fact, it is Chief Judge Shepherd the court in J.P. cites for its formulation of what imminent risk means: “the necessity of a continuing risk—not just a risk that existed sometime in the past, but a risk that is alive and merits judicial interference in the parent-child relationship to protect the child’s welfare.” This formulation provides no guidance on how to apply itself, but indicates clearly that imminent risk is something that should not be gratuitously found, turning the concept that an adjudication of dependency is “for the protection of the child and not the punishment of the parents” on its head. 

This brings us back to the question about whether we need better laws or better lawyering in child welfare. In reversing J.P., the court notes that the Father was reunified with the child and the only case plan tasks were the boilerplate goals of maintaining housing and employment. In a case about a gun, a task about gun safety would have made sense, but is conspicuously missing. There’s also the issue of the mysterious arrest that triggered the child welfare investigation. An arrest does not prove a criminal act actually occurred, but the dismissal of charges similarly does not mean a criminal act did not occur. Some criminal acts, if conducted in the home of the children, are solid bases for a dependency. If this case were more serious than is described in the opinion, then where are those facts?

Or perhaps this case should not have been prosecuted in the first place. If the children were immediately reunified and no meaningful case plan tasks were required, then the case would last approximately 6 months and then be closed. A reasonably sharp attorney would know that an appeal filed toward the end of 2013 would take approximately 6 months to resolve, during which time jurisdiction and supervision would continue. The opinion was rendered in April 2014. If the Department dragged out the proceedings on weak grounds just to keep supervision, they did so at the expense of creating case law that undermines future cases of prospective neglect, especially those involving firearms. Judge Shepherd thanks you.

Case Law UpdatesTop Menu

Watch the pros argue nexus: is proof of harm required where the father kills the mother?

In this oral argument, Mr. Colbert shows that it is possible to argue under Florida law that even the murder of the child’s mother is insufficient to establish a nexus of harm to the children. Based on the court’s questions, this is probably not true much longer in the Third DCA.

The OA also contains an interesting discussion at the beginning about whether pre-trial detention constitutes incarceration for the purposes of a TPR, with Judge Emas sharply questioning the constitutionality of TPR’ing someone just because they couldn’t post bail (a scenario that does not appear to be the facts of this case).

Attorneys: Hillary Kambour for GAL Program; Kevin Colbert for the father.

Judges: Emas, Shepherd, Scales

Issues:
(1) What constitutes incarceration for purposes of TPR?

(2) Do the facts of this case constitute “egregious” domestic violence?

(3) Was there CSE to prove the father murdered the mother?

(4) What nexus is required in cases involving egregious abuse or murder of a parent?

 

Outcome: PCA’d at http://www.3dca.flcourts.org/Opinions/Opinions2014-04-16.shtml .

Case Law Updates

Fourth DCA rules against DCF on risk of harm. Do we need better laws or better lawyers?

I’ve read the Miami Herald’s Innocents Lost series with frustration, sadness, and a feeling of powerlessness. The calls for system change, better services, and more realistic funding, articulated brilliantly by many other people, are overdue and welcomed.

The parts of the series briefly dealing with lawyers struck me, however, in particular because I am a lawyer who has worked both “in the system” and now adjacent to it. Here is an example:

The Herald’s study of child deaths found that in at least 49 cases, children died after a lawyer overruled staff and said the department didn’t have legal cause to file a court petition on behalf of a child. Filing a court petition and advocating for it costs money. If an agency’s policy is to preserve the family wherever possible and conserve resources, a lawyer employed by that agency might be conflicted.

Read more here: http://www.miamiherald.com/projects/2014/innocents-lost/stories/solutions/#storylink=cpy

Throughout the series, lawyers are depicted as roadblocks, conflicted and obstinate, with no examination of whether their actions were actually supported by or required by the law they swore to uphold. Reading the stories I was bothered by the clear fact that much of the advice given by these anonymous lawyers, at the time it was given, was arguably consistent with law as it stands today. I use the term “consistent with the law” very technically to mean that the decisions were minimally supported by case law, not that the decisions were morally right or based on good judgment. The scenarios involving children left with drug-using and drug-abusing parents, or where domestic violence was not sufficient to justify removal–those same decisions are found and applauded in case law, derived from strong conservative legal principles in Florida, based on decades of case law that is unsurprisingly anti-government and often unapologetically pro-parental rights.

An example, in fact, has come down since the Herald’s series, highlighting what substantive child welfare law looks like in Florida. Yesterday, the Fourth District Court of Appeal released an opinion involving two siblings. One sibling, a girl, was abused by the father arising from “incidents involving her interaction with young men.” The trial court found that the other sibling, a boy, was either abused or was at risk of harm. The Fourth reversed the dependency on the boy based on a lack of proven risk of harm, writing:

 The abuse of one child is insufficient in and of itself to prove that a parent’s other children are also dependent. In re S.M., 997 So.2d 513, 515 (Fla. 2d DCA 2008); see also In re M.F., 770 So.2d 1189, 1194 (Fla.2000). “[T]he Department must establish the required elements of dependency as to each child individually.” In re S.M., at 515.

Although the Department also alleged that the child was dependent based upon a substantial risk of imminent abuse or neglect pursuant to section 39.01(15)(f), Florida Statutes (2013), the trial court made no findings with respect to the risk of imminent abuse. The Department must prove that there is a nexus between the parent’s abuse of one child and the risk of abuse to another child. “This analysis focuses on the parent’s behavior and whether that behavior or the circumstances surrounding that behavior permit a reasonable prediction that the parent will visit similar abuse or neglect on the child’s siblings in the near future.” In re S.M., 997 So.2d at 515.

W.R. v. Dep’t of Children & Families, 4D13-3508, 2014 WL 1225310 (Fla. 4th DCA 2014)

It is in this grey area called “nexus” where a lot of bad decisions happen. There is a long documented history of courts using scientifically unfounded, stereotype-based heuristics for assessing risk to the second child. For example, the abuse of step-children has been found insufficient to find a biological child at risk. The sexual abuse of a girl child has been found insufficient to find a boy child in the same household at risk. Domestic violence aimed at a mother and her daughter was found to not be predictive of abuse towards a male child. The list goes on. Florida courts have required that the Department prove that the parent is a risk above and beyond the abuse inflicted on the first child, possibly due to some mental health diagnosis or other factor. When I meet with experts for cases, they are constantly puzzled by this requirement of nexus–they tell me that the abuse of one child speaks for itself. But Florida law does not agree, and cases are lost or dismissed on this theory all the time.

Law is applied and interpreted by lawyers (and judges, which could be a whole other post). Lawyers, like all people, vary in their intelligence, risk tolerance, education, experience, and dedication. Recruiting good lawyers is as difficult and as important as recruiting good investigators. Much was made in the Innocents Lost series of the poor pay of Protective Investigators in the child welfare system ($38,000), but the lawyers involved in the decision-making process are making very little more. According to People First, a new lawyer at the Guardian ad Litem Program can expect a starting salary of $41,267. A Senior Attorney at DCF can expect $52,000. That’s a senior attorney. Put that figure against the U.S. News & World Report article yesterday that students graduating from the University of Miami Law School have, on average, $148,000 in debt, and you can see the problem. Good and dedicated lawyers work in the child welfare system for lots of reasons unrelated to salary, but this is not a pay structure that attracts and keeps good and dedicated lawyers. If we want better outcomes, we must improve the whole system, laws, lawyers and all.

Case Law UpdatesNews & Notes

Florida judge says schools probably have the right to decide which students have to suffer violence quietly

In Lake County, Florida, a young girl at Carver Middle School wanted to start a Gay-Straight Alliance in order to combat bullying and other abuses she saw at her school. The administration refused her request, stating that the group was not related to the curriculum despite the fact that other groups were approved that were unrelated to the curriculum. The young girl, through her parents, brought a law suit against the school board.

The matter was pending on a motion for preliminary injunction from the girl and a motion to dismiss from the school. Judge Hodges, Middle District of Florida, denied both, finding that the girl does not have a reasonable likelihood of success on the merits mostly because HOMOSEXUALS IN MIDDLE SCHOOL, but that the girl does state a claim because he can’t ignore that a ton of other courts have ruled in favor of youths seeking to start GSAs.

The core of the opinion shows what the judge clearly does not understand:

Turning, then, to the reasonableness of the School Board’s action, it must surely be beyond question at this moment in the nation’s history that the subject of sexual orientation and the legal status of those in the LGBT Community is at the forefront of public debate, particularly with regard to same sex marriages. Moreover, it is a very controversial issue. Indeed, and sadly, it is common knowledge that the debate has often turned violent. It seems entirely reasonable, therefore, that those in charge of a public middle school with students twelve to fourteen years of age would want to distance the school and its pupils from a debate best left to more age mature educational levels. Indeed, even if a reasonable person could disagree with that assessment, the same reasonable person would be forced to agree that the contrary view, while perhaps mistaken, is nevertheless within the range of reasonableness. In any event, in addition to Hazelwood School District itself, there is ample authority for the proposition that the youth and immaturity of students below the high school level is an appropriate if not a vital consideration in determining whether a restraint on speech is permissible. See Walker-Serrano v. Leonard, 325 F.3d 412, 416 (3d Cir.2003) (Scirica, J.) (“[A]ny analysis of the students’ rights to expression on the one hand, and of schools’ need to control behavior and foster an environment conducive to learning on the other, must necessarily take into account the age and maturity of the student.”) (citations omitted). “Human sexuality provides the most obvious example of age-sensitive matter.” Id. at 417.

Carver Middle Sch. Gay-Straight Alliance v. Sch. Bd. of Lake County, Fla., 5:13-CV-623-OC-10PRL, 2014 WL 897072 (M.D. Fla. 2014)

How do you even begin to explain how this is wrong to someone who does not want to see it? The “debate” is not the source of violence in schools; the girl sought to gather with her peers and speak out against already existing violence. The judge’s opinion means that schools have a legitimate interest in silencing victims and those who want to stand with them in support, and that schools have a legitimate interest in deciding that students can come together to share ways to beat back opponents in organized sports but not come together to share ways to respond to actual peer abuse they say they suffer on a daily basis. The judge writes as though these kids do not already know what sexual orientation is. They clearly know what it is and they’re getting an unfortunate education in what it means.

Case Law Updates

Guardianship orders are hard, Second DCA’s already reversed two of them this year

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” But the statute clearly requires the trial court to first make a reasoned decision that reunification or adoption are not in the best interest of the child. See § 39.6221(1). Despite the language of the order, the court did not make that determination in this case and does not appear to have had a factual basis to have made such a determination. Subsection 39.6221(2) and rule 8.425(d) contain detailed requirements for the written order establishing a permanent guardianship. It is obvious that the legislature intends case specific explanations in such orders. Rule 8.425(d)(7) emphasizes the specific findings required when the permanent guardians are not relatives. A form order to assist judges in granting a permanent guardianship may be appropriate but not at the omission of the information that the statute requires the trial court to specify.”

In re J.B., 2014 WL 258743 (Fla. 2d DCA 2014)

ImageAlthough we conclude that the trial court’s decision to place the children in a permanent guardianship is supported by competent, substantial evidence, the order on appeal fails to contain or to reference the detailed findings required by section 39.6221(2)(a), Florida Statutes (2012).”

In Interest of A.C.(1), 2D13-4186, 2014 WL 594381 (Fla. 2d DCA 2014)

 

PRO TIP: If anyone is objecting, treat a permanency hearing or TOS hearing on permanent guardianship with the professional attention you would a TPR trial. Because to that parent, it is essentially a TPR trial.

Case Law Updates

Third DCA: Foster Parents cannot access the entire file

The facts are simple: foster parents moved for party status, and the trial court partially granted them access to the entire court file. The mother (not TPR’d), joined by the GAL Program (for the children) and an AAL for another half-sibling, petitioned for cert alleging violation of privacy and lack of statutory basis. DCF took no position for or against their foster parent.

Section 39.01(50) expressly includes foster parents as “participants” in a dependency proceeding such as this, affording them rights to receive notice of hearings involving children in their care and allowing the court to permit them “to be heard without the necessity of filing a motion to intervene.” Chapter 39 does not, however, authorize the foster parents to receive every record in a confidential, pending dependency case court file that may relate, for example, to the natural parents, or to siblings that are in other placements and are not in the care of the foster parents. The order in this case did not exclude any such records, thus jeopardizing the constitutional (Art. I, § 23, Fla. Const.) and statutory (§ 39.0132(3), Fla. Stat. (2013)) rights of the natural parents and siblings to privacy and confidentiality.

D.C. v. J.M., 3D13-3158, 2014 WL 305284 (Fla. 3d DCA 2014).

Under the current statutory and constitutional scheme, this seems right.

Case Law Updates

Here’s what the Fourth DCA did with the amended reunification statute, section 39.522

After years of confusion on what to do on a motion for reunification when you have a “charged” parent who completed a case plan and an “uncharged” parent who was given custody, on July 1, 2013 the reunification statute was amended to include the following language:

In cases where the issue before the court is whether a child who is placed in the custody of a parent should be reunited with the other parent upon a finding of substantial compliance with the terms of the case plan, the standard shall be that the safety, well-being, and physical, mental, and emotional health of the child would not be endangered by reunification and that reunification would be in the best interest of the child.

T.N.L., the mother in this case, filed her motion for reunification in December 2012 and the hearing stretched all the way until March 2013. The child was with the father, out of state, and by all reports doing well.  There was testimony that moving the child back to Florida would be “detrimental” to her, but not that it would “endanger” her. The motion was denied, the mother appealed. The Fourth DCA gave her another chance under the new law:

We find that the amended statute, which changes the legal standard for courts to apply in ruling on reunification motions involving a child placed with the non-offending parent, is a remedial statute and does not affect substantive rights. Thus, there is no bar on its retrospective application. See Smiley v. State, 966 So.2d 330, 334 (Fla.2007) (“Remedial statutes or statutes relating to remedies or modes of procedure, which do not create new or take away vested rights, but only operate in furtherance of the remedy or confirmation of rights already existing, do not come within the legal conception of a retrospective law, or the general rule against retrospective operation of statutes .” (citation omitted)). However, because of due process considerations that arise under the particular facts of this case, and because this is a dependency case involving the best interest of the child, we vacate the challenged orders and remand for a new hearing. Given that the reunification hearing took place before the amended statute went into effect, the mother was presumably operating under the belief that her motion would be granted so long as there was no evidence that reunification would endanger A.L. Indeed, the mother may have elected to present additional evidence relevant to the best interest of the child had she known that the standard had changed.

T.N.L. v. Dep’t of Children & Families, 4D13-1577, 2014 WL 223001 (Fla. 4th DCA 2014)

This case seems to have limited precedential value. Parents in open cases can always file a new reunification motion under the new standard, which will usually make it harder to get reunification if your child has been out of your custody with an uncharged parent for a year. This mother just got caught in the lurch, with an appeal pending between the two standards. Everyone else is on notice that the law has changed. Or hasn’t changed, depending on who you ask.

Case Law Updates

Recreational marijuana use isn’t a defense to TPR, yet

Apparently I missed this in November: the Fourth DCA responded to a father’s defense that his marijuana use was only “recreational.”

The father never received a negative drug screen during the pendency of this case, he admitted at trial to continuing to smoke marijuana “recreationally,” and he failed to complete the required outpatient program before leaving the program altogether. In contrast to the parent who prevailed upon appeal in M.H. v. Department of Children and Families, the father in the instant case did not exhibit a “strong desire to overcome [his] addiction and parent [his child] ….” M.H. v. Dep’t of Children & Families, 866 So.2d 220, 223 (Fla. 1st DCA 2004). Instead, the record reflects an unwillingness on behalf of the father to quit smoking marijuana, even knowing that his refusal to at least make an effort to quit was impeding his (otherwise inconsistent) efforts to regain custody of his child. In Florida, it is still illegal to possess marijuana, let alone smoke it. There is no differentiation in the law between being a marijuana addict and a “recreational” user, contrary to the father’s brief (“he only smokes marijuana recreationally”). Thus, there was no legal error with respect to DCF and the trial court relying upon the father’s failure to test negative for marijuana (and, for the most part, failure to test at all) as a factor (along with others, cited above) in finding that he did not substantially comply with his case plan, constituting evidence of continuing abuse, neglect, or abandonment supporting termination of parental rights.

J.E. v. Dep’t of Children & Families, 126 So. 3d 424, 428-29 (Fla. 4th DCA 2013).

It’s obvious that the tide of public opinion on marijuana use is turning, and the Fourth seems to give a hat tip to such again and again: earlier in the opinion it reminds us that it only needs to uphold the TPR on one ground (i.e., abandonment for this father), and notes that the father’s positive marijuana tests were “a factor…in finding that he did not substantially comply with his case plan.” Just a factor in an otherwise poor case plan performance. It would only take a few years, some law changes, and a couple of intervening cases to relegate this opinion to non-authority full of pre-legalization dicta.

Obviously some parents’ marijuana use may pose a risk of harm to their children–just like some parents’ use of alcohol or anything else may. Once a case plan is entered, though, the question of harm is almost completely tabled in favor of the much easier (for the system) standard of “compliance.” If he truly was a harmless recreational user, then I think that this father brought up his “recreational” defense at the wrong point in the proceedings. His argument is more properly a defense to a dependency based on marijuana use. No defense attorney in Florida should be allowing their client to consent to a “tested positive for marijuana” dependency absent some harm to the children. Mr. J.E. is a cautionary tale for how that may work out.