A word to anyone considering caging a child in Florida

I am very worried that the Trump administration’s asinine efforts to defend the indefensible are going to result in normalizing caging. I can imagine some misguided person, standing in partisan solidarity, caging their own child to prove it’s no big deal. I can imagine some group home worker seeing caging on the news and thinking it is a far more streamlined method of behavioral control than having to actually build positive relationships with kids.

Therefore, I would like to point out that it is aggravated child abuse under Florida law to willfully and unlawfully cage a child. § 827.03, Fla. Stat. Ann.

It is not “summer camp.” It is traumatic, dehumanizing, and illegal.

This couple was arrested for caging their daughter in a playhouse.

This woman caged her autistic daughter in a crate on a bed.

This woman caged her disabled son by locking him in a bare room with a urine bucket and the windows nailed shut.

It is very serious. Subjecting any child, including a child who is not yours, to aggravated child abuse (such as caging) is grounds to terminate your rights to your own children.  § 39.806(1)(g), Fla. Stat. Ann. And you do not get a case plan under that ground — “[r]easonable efforts to preserve and reunify families are not required if a court of competent jurisdiction has determined that any of the events described in paragraphs (1)(b)-(d) or paragraphs (1)(f)-(m) have occurred.” Id. If you cage someone else’s child, you can lose your own. That seems fair.

Caging a child is categorically different from sending them to their room (for parents) or securely detaining them (for the state). If you were thinking of caging your child in Florida, just don’t. If your boss tells you to cage a child in Florida, I suggest you ask them to show you the law that specifically allows it before you comply. I do not know of any.

If you know any child who has been caged, please call the Florida child abuse hotline at 1-800-96ABUSE.

A belated Foster Care Month, Tampa is still on fire, and some actually interesting appellate cases.

Here’s your periodic child welfare update. If you have any tips or suggestions, please let us know at rlatham@law.miami.edu.

What’s going on in child welfare world

Moving and shaking. Judge Ariana Fajardo Orshan has been nominated for US Attorney in Miami. News reports have called her a “divorce court judge” and a “family court judge.” Until recently, however, she was a dependency court judge in Unified Family Court.

International relations. International adoptions are down, largely due to changes in policy by Russia, China, and the DRC. A report by Axios shows that domestic adoptions are back  to the levels they were before the financial crisis. Probably because the cost of living is one factor that determines foster care volunteer rates.

Hallmark doesn’t have cards for “I’m not legally allowed to know where my family is.” In honor of foster care month (which I guess was last month), here’s an essay that complicates the standard marketing messages a whole lot: Black Children and Foster Care: On surviving trauma of a system that doesn’t care about keeping families together. And meanwhile another foster child has died in custody.

Timeout. Hillsborough County’s foster care agencies got “blasted” by peer and OIG reports, and DCF is cracking down by making them write their own Corrective Action Plan and submit it in a month or so. That’s some tough justice. And if you think one peer report is “getting blasted,” Miami has two or three and can’t go out to play until it says it’s sorry.

Not it. Manatee County is trying not to be next, even though it is running a $3.8 million shortfall.

RSVP. A Hillsborough judge laid into case managers who do not appear in court to report on their cases. Be careful, judges — if case managers are sitting in your courtroom waiting on a hearing, they’re not out in the community getting kids to appointments and meeting with parents about their issues. Unless court calendars are very predictable or you set up a way for case managers to work in the courthouse itself, having them sit all day in a waiting room is likely not an efficient use of their time.

Everything is terrible. ProPublica reports that foster kids in Illinois are being held in psychiatric facilities longer than they legally should. So basically everything is terrible everywhere.

Mixed feelings martial arts. Justin Willis, an MMA fighter, explains how he learned to fight in foster care when staff encouraged pit fights among the kids.  He now aims to raise awareness about violence and conditions in foster care.  Says Willis, “If you take these kids out of their homes, you have to offer them something better. And what I received was not better. I wouldn’t say it was worse, but it created what I am today and that’s a monster when it comes to getting in that cage.”

Ok, not everything is terrible.  A trans kid got adopted in a costume party themed ceremony and it is awesome.

And now for some court opinions…

Sometimes you just lose. The Fifth DCA ruled that the failure of a trial court to make specific findings when denying a TPR under Chapter 63 is not necessarily reversible error. You don’t get to make the judge work late just so you can quibble over findings.  D.M. v. M.D., 5D18-473, 2018 WL 2448618 (Fla. 5th DCA May 30, 2018).

Daddy’s maybe? The Fourth DCA held that a biological father could not challenge an adoption more than one year after it was finalized. That’s normal, and where the opinion could have stopped. It also held, however, that he was not the legal father because the children were born during the mother’s intact marriage with another man, even though the trial court gave custody of the children to the biological father for a period of time as a non-relative. To assert his rights, the DCA ruled the father had to file a paternity action, a requirement I’m confident he probably did not anticipate given he had custody of his own kids. J.G. v. State, 4D18-0090, 2018 WL 2434817 (Fla. 4th DCA May 30, 2018).

So apparently there is a best interest of defaults. The Fourth DCA declined to set aside the default of a mother who was not personally served with a dependency petition, which was only filed the day before her arraignment. The court held that her appearance at the shelter hearing, where she was advised of her arraignment hearing date, obviated the need for personal service thereafter.  C.J.L-M. v. Dep’t of Children & Families, 4D18-836, 2018 WL 2716717 (Fla. 4th DCA June 6, 2018). I note that DCF conceded error but the GAL Program did not. I understand that, in general, needless delays can be bad. But I’m curious how the Program could determine that it was in this child’s best interest for their parent to be defaulted on a one-day old petition before any discovery had likely even been done. I mean, what if the allegations in the petition were actually wrong and the child is now in care for no reason?

Because sometimes DCF gets it wrong. The Third DCA took the rare step of reversing a dependency that was based solely on (1) the mother leaving her child with a relative who had previously been through the system and had her own children successfully reunified, and (2) the discharge of a firearm in the presence of the child. The DCA held that neither situation constituted risk of harm to the child without additional facts.  C.H. v. Dep’t of Children & Families, 3D18-291, 2018 WL 2422891 (Fla. 3d DCA May 30, 2018). Good thing she didn’t default.

A complete waste of everyone’s time. The Second DCA was put in the common position of reversing a change of goal and TOS to permanent guardianship for lack of proper notice. I get that you (DCF, GAL, child’s attorney, whoever), hint and grouse about changing the goal in hearings and hallways all the time. But threats are not notice. File the paperwork and set it out a week like you’re supposed to. In Interest of T.C., 239 So. 3d 1266, 1267 (Fla. 2d DCA 2018).

Speaking of wasting time. The Third DCA punted on the question of whether the Miami Herald can get access to an audio recording of a court hearing that its reporters were not present at. The opinion dismissed the appellate challenges from the family and child as premature because the trial court had not yet reviewed the record and determined what, if anything, the Herald would have access to. C.H.-C. v. Miami Herald Publ’g Co., 3D18-504, 2018 WL 2708374 (Fla. 3d DCA June 6, 2018). UPDATE: The Herald is reporting that the trial judge has reviewed the audio and ordered it released today. No word yet on whether the family will appeal.

 

Sometimes you just have to sue. Believe kids. The adoption intervention battles continue. Here’s some child welfare news.

The Miami Herald published a joint Op Ed by the next friends in the H.G. v. Carroll suit detailing why they (we) felt a lawsuit was both necessary and good. Kids in foster care aren’t getting what they need – that’s why we’re suing DCF.

A lawsuit against Lutheran Services, Children’s Network of Southwest Florida, Camelot, and others has partially survived a motion to dismiss.  The suit alleges negligence and 1983 violations from the various agencies’ failure to seek dental care for a child who  experienced significant medical harm.

More kids are getting Baker Acted, some as many as 10 times in a row. Having someone committed for stabilization results in their extra-judicial confinement in a lockdown psychiatric facility with no meaningful possibility of review. One or two times may be necessary for their safety, but ten times means you’re not solving the underlying problem and/or severely violating that person’s constitutional rights. Someone should look into that.

I do not think it means what you think it means. State has plan to fix care for foster teens says DCF Secretary Mike Carroll. Also says Mike Carroll, “We have zero tolerance for any management or practices that could result in anything less than excellent care for the children and families we serve.” I’m curious what “excellent” means in that sentence.

CHS, on the other hand, says we need to end foster care (as we know it) by embracing prevention services. Also, a ton of money is about to come down for prevention services, so this is a truly brave stand against the system.

You would save a lot of anguish by just believing kids. A juvenile detention center employee was arrested on federal charges after the death of a 17-year-old boy who died after being beaten by other kids in the facility. The employee used a honey-bun bounty system to encourage violence. Kids have been describing this practice for years, but nobody really believed them.

In case law news, I recognize there is a well-defined community of people who hate the idea of adoption intervention. However, when a parent consents to a private adoption, you can’t ram their TPR trial through to cut them off at the pass. Hold the intervention hearing and go from there. Y.G. v. Dep’t of Children & Families, 1D18-49, 2018 WL 2066792 (Fla. 1st DCA May 3, 2018).

On the other side, when your private adoption intervention gets denied, remember that the Juvenile Rules apply to adoptions from foster care. Be careful: motions for rehearing do not toll the time for an appeal under the Juvenile Rules. B.S. v. Dep’t of Children & Families, 1D17-2515, 2018 WL 1954457 (Fla. 1st DCA Apr. 25, 2018).

Relatedly, you can’t bifurcate a TPR trial into grounds and MBI and then kick the parent out (or go on without them) after the grounds are proven. R.E.B. v. Dep’t of Children & Families, 5D18-588, 2018 WL 1972642 (Fla. 5th DCA Apr. 27, 2018).  Terminating someone’s parental rights should actually be hard.

Here’s my current reading list. Family Court Review published a special symposium on The Trump Administration and Children’s Human Rights. The intro by Barbara Stark lists all the reasons it’s worth getting your hands on a copy.

The Souls of Poor Folks report is a fantastic study of structural forces that reproduce poverty across generations. The growth of foster care as an organized industry is mentioned briefly as one of those structural forces. Quoting Margaret Prescod of Every Mother is a Working Mother:

What increasingly happened [with welfare reform] was that monies that would previously go to mothers on AFDC, and therefore to families headed by single mothers, got sucked into child welfare agencies and states were using those resources for child custody, foster care, and adoption services. Instead of going to support mothers with their housing or other basic needs, children are being taken away and placed in foster care, or are up for adoption, not because they are abused or neglected but because they are poor.

 

Thanks for having me! I had the pleasure of presenting at the Florida Disability Conference last week. The topic was using due process fees to expand your advocacy team. We had a great audience of people who definitely knew a lot more than I do. I’ve been told there will be a video at some point.  The powerpoint and sample pleadings can be found here.

Everything you need to know about Florida child welfare news until something else comes along

Every time I tried to post this entry, I’d find something new in my inbox. 

News

DCF says its investigators and caseworkers are still carrying dangerously high caseloads. http://floridapolitics.com/archives/247809-workloads-work-life-balance-continue-hobble-children-services-workforce

The Tampa Bay Times is asking for records regarding abuse of adults by home health care providers. The case was assigned to Karen Gievers.  DCF is not objecting to the request. http://floridapolitics.com/archives/247326-times-court-order-dcf

The Orlando Sentinel reports on the use of $1B in state scholarships at poorly regulated and poorly managed private schools.  http://www.orlandosentinel.com/features/education/os-florida-school-voucher-investigation-1018-htmlstory.html

A federal case in Kentucky recently ruled that relative caregivers were entitled to the same payments as foster families. (Will Florida follow? Relatives get a fraction of what strangers get to care for the same kids.) http://www.the-messenger.com/news/local/article_0b84ad05-2c0c-5e14-abad-7772c6b4b7a9.html

Commentary

Agreed, judges cannot ban children from courtrooms. Please stop it. http://justicebuilding.blogspot.com/2017/10/kids-are-people-too.html

Legislation

The Senate Finance Committee issued a report on the states’ weak oversight and control of their privatized child welfare providers. The report finds that 86 kids died while under one company’s care. (Florida uses/used this company too, but reportedly did not respond to the committee’s request for information.)

“State child welfare agencies report they have procedures in place to monitor child welfare providers’ performance and outcomes,” the report said. “But this investigation … shows that these policies are not always followed; exceptions are made, waivers are granted, profits are prioritized over children’s well-being, and sometimes those charged with keeping children safe look the other way.”

https://chronicleofsocialchange.org/featured/senate-report-slams-public-management-private-foster-care-industry/28470

In coordination with the release of the report, the Child Welfare Oversight and Accountability Act of 2017 was filed. It would increase incentives for relative care, monitor privatized systems more closely, and increase scrutiny of child deaths. https://chronicleofsocialchange.org/child-welfare-2/senate-foster-care-bill-incentivize-kin-monitor-private-providers-child-fatalities

In Florida, a bill to allow pro bono attorneys for kids to access due process funds is moving through committee.  http://www.flsenate.gov/Session/Bill/2018/00146

And a bill to ban child marriages is also moving forward (which is to say we could stand to be a little less backwards). http://www.flsenate.gov/Session/Bill/2018/00140

Regulation

DCF amended its rules on placing kids in out-of-state residential mental health programs. https://www.flrules.org/gateway/View_Notice.asp?id=19571319 

Sheridan House Ministries, which runs a child care facility (group home), received an exception to the rule that its program director have the required educational and experience levels. https://www.flrules.org/gateway/View_Notice.asp?id=19541928

DCF is amending its rules to clarify the procedures for missing kids. https://www.flrules.org/gateway/View_Notice.asp?id=19459478

DCF is also creating a rule on emergency and runaway shelters. https://www.flrules.org/gateway/View_Notice.asp?id=19411851 and https://www.flrules.org/gateway/View_Notice.asp?id=19411948

And DCF is amending its rule on out-of-state criminal checks. https://www.flrules.org/gateway/View_Notice.asp?id=19604008

 

Whew that’s it for now. 

Miami Herald tears open the juvenile delinquency system’s horrible secrets

hearldcover.png

Carol Marbin Miller and Audra Burch are unstoppable investigators. Their 2014 report Innocents Lost laid bare the child welfare system’s rampant lack of effort and oversight in abuse investigations. Now, with FIGHT CLUB, they set their sights on the juvenile delinquency system. And what they find is appalling: mismanagement of facilities, unbelievable hiring practices, and victimization of children that the Department of Juvenile Justice was charged with helping.

As I read through these articles, I could hear the voices of clients who have told similar stories over the years. Once they’re safely out of the programs, they often just want to look forward to better things instead of re-litigating the past. They had no sense that fighting would do any good for them or future incarcerated kids. The only rational strategy they saw was to escape.

One of my students today asked how this can continue to happen. “It doesn’t make any sense,” she said. But it does make sense. If you pull vulnerable kids out of their communities and homes, put them in isolated places behind locked closed doors, supervise them with some good staff who are poorly trained and unsupported, and supervise them with other staff who are evil, malicious, or unkind — this makes perfect sense. If you prioritize investment in security systems instead of schools, this makes sense. If kids who speak out get hurt and adults who don’t play along get fired, it makes sense. And if doing all of that generates $500 million a year in revenue for people who do not have to experience any of its harms, it almost couldn’t be any other way.  Despite whatever good moments may happen on any given day at any particular program, violence has always been a feature of these systems, not a bug.

It is very easy to dismiss or rationalize away a single child’s stories of mistreatment as an aberration or justly deserved punishment. Articles like this and other acts of collective reckoning are often the only avenue towards justice available. What those in power do with these stories will reflect their priorities and assumptions about the world we live in. We have to challenge those assumptions. The solutions cannot be a pay raise for staff (money does not make you good), better video cameras (too many eyes watched these things happen already), or higher penalties for staff who hurt kids (kids should not be put in harm’s way to put more people in jail).

If you watch the looped video on the Herald’s website long enough, the answer becomes pretty apparent. You don’t need to fix them. These programs shouldn’t even exist.

George Sheldon in talks to head Our Kids

The Chicago Tribune is reporting that George Sheldon is in talks with Our Kids to become their new CEO. Sheldon is the current Director of the Illinois Department of Children and Family Services, and has a long career in politics and child welfare (wikipedia).

According to the Tribune, Our Kids’ board chair Keith Ward supports Sheldon. “He wants to come home. … We’re very fortunate,” Ward told the board, the Tribune reports. “He’s just No. 1 on anybody’s list.” But back in Illinois, Sheldon is facing ethics probes due to favoritism in contracting and hiring, and public controversy over the death of a child one day after investigators declared her safe. The Miami Herald got Sheldon’s side of the story.

Sheldon was Secretary of Florida DCF from 2008 to 2011 when Governor Scott took office. During his tenure Sheldon continued the reduction in out-of-home care started under Secretary Butterworth. To my knowledge, no former DCF Secretary has ever become CEO at a CBC.

secretaries.png

DCF investigating Miami’s child welfare dysfunction

The Department of Children and Families is convening a Peer Review Team to investigate the problems in Miami. I don’t know if it’s a public meeting, but it should be.  See email below for details.


From: Mike Carroll <Mike_Carroll@info.dcf.state.fl.us>
Date: 04/25/2017 10:30 AM (GMT-05:00)
To: “Ferradaz, Gilda” <Gilda.Ferradaz@myflfamilies.com>
Subject: Miami Peer Review Launch Meeting (5/1/17: Miami, Florida)

The Department of Children and Families will convene a peer review team to conduct an assessment of current operations and to develop recommendations to improve the relationships of stakeholders within the Miami-Dade child welfare system of care, strengthen behavioral health services for teens, and to clarify information-sharing. The commencement of the Miami Peer Review Team will take place on Monday, May 1, 2017 (9am) at 401 NW 2 Ave, Suite North-1011/Visionary Room, Miami, FL 33128, and you are invited to attend.

The team will facilitate multiple discussions with individuals and groups involved in the local child welfare system to engage various community stakeholders. The team’s work will build upon prior work completed in the region, including the Child Welfare and Behavioral Health Integration Self-Study and Peer Review, Southern Region Miami-Dade and Monroe Counties’ Child Welfare System of Care Peer Consultation Team Summary [found here], and relevant CIRRT reports [eventually will be found here].

The team, led by Lee Kaywork, CEO of Family Support Services of North Florida, consists of DCF leadership and external stakeholders. Team members include:

  • Vicki Abrams, DCF Assistant Secretary for Operations
  • Neil W. Boris, MD, Irving Harris Training Director, Florida State University–Center for Prevention and Early Intervention Policy Professor, Child Psychiatry
  • Skye Cleek, Program Manager: Henderson Behavioral Health
  • Rebecca Kapusta, DCF General Counsel
  • Kelly McGrath, DCF Assistant General Counsel
  • April May, DCF SunCoast SAMH Program Supervisor
  • Steven Murphy, Executive Director of Devereux Florida
  • Frank Prado, Director of Operations of Florida Statewide Guardian ad Litem Office
  • Gertrude (Trudy) Petkovich, Foster Parent Consultant
  • Lorita Shirley, CEO of Eckerd Kids
  • Dr. Joyce Taylor, Consultant and Former Interim CEO of Our Kids Miami-Dade, Monroe

If you have any questions or need more details regarding the meeting, please contact Gilda P. Ferradaz at 786-257-5059 or Gilda.Ferradaz@MyFLFamilies.com. We hope you will be able to join us for this important meeting to help ensure that the state and community are working together to meet the needs of Florida’s children and families.

Sincerely,

Mike Carroll
Secretary
Florida Department of Children and Famlies

CYLC files petition for reunification through developmental disability services

The Children and Youth Law Clinic (where I work) recently filed a petition with the Agency for Persons with Disabilities asking the agency to clarify the procedure and criteria for removing foster children from the Waitlist when they are reunified with their parents. Specifically, we asked about the procedure for children with severe developmental disabilities who can safely be legally reunified with their parents but medically need to remain in a group home program for children with developmental disabilities.*

Below is the official notice, and a copy of the petition is here.

Notice of Declaratory Statement
Department: Department of Children and Families
Division: Agency for Persons with Disabilities
Petitioner: Robert Latham, Esq. for C.J.

Full Text: The petition seeks the agency’s opinion as to Section 393.065(5)(b), Florida Statutes applicability to the Petitioner and others similarly situated under various scenarios as to the proper procedures and necessary conditions for determining eligibility under Category 1, Category 2, and any additional conditions necessary to qualify for removal from the waitlist. Persons other than the original parties to a pending proceeding whose substantial interests will be affected by the disposition of the declaratory statement and who desire to become parties may file a motion to intervene with the Agency. The motion should be filed with the Agency Clerk at the above address within twenty one (21) days of publication of this notice. Any petition for leave to intervene must comply with the requirements set forth in Fla. Admin. Code R. 28-105.0027.
https://www.flrules.org/gateway/View_Notice.asp?id=18492873

* For the admin law nerds: we filed it as a Declaratory Statement instead of a petition for Rulemaking because we have a child who needs to exit now, not two years from now.

Judge C. Alan Lawson (5DCA) appointed to Florida Supreme Court. How did he rule on child welfare cases?

 

Governor Scott has appointed Judge C. Alan Lawson of the Fifth District to the Florida Supreme Court. Judge Lawson will replace Justice James E.C. Perry who has reached mandatory retirement age. News reports have focused on Judge Lawson’s conservative credentials, but I thought I would take a look  at his child welfare rulings to get a feel for what we can expect from our 86th justice.

Child Welfare Opinions

I could find only six opinions authored by Judge Lawson that dealt with child welfare issues (and one dissent, which I will discuss below). In these opinions I see a judge attempting to reach a decision in the text of the law, not the facts of the case. Five of his child welfare opinions are resolved with references to statutes, court rules, and the fundamental due process requirements of notice and opportunity to be heard. None of these five authored opinions dealt with substantive child welfare doctrines like harm or risk, though these issues are certainly present in every case.

  • Finding trial court improperly declared statute unconstitutional without proper notice to DCF; finding that statutory term “foster care” did not include placement with dependency guardian. DCF v. K.D., 45 So.3d 46 (Fla. 5th DCA 2010).
  • Reversing TOS order with non-offending parent where offending parent working on case plan and no finding that reunification would be detrimental was made. M.M. v. DCF, 29 So.3d 1200 (Fla. 5th DCA 2010).
  • Holding standard for change of custody is the child’s best interest and finding no statutory preference for grandparents. Guardian ad Litem Program v. R.A., 995 So.2d 1083 (Fla. 5th DCA 2008).
  • Holding that statutes do not permit court to resume jurisdiction over children after relinquishing at TOS without adjudication of new dependency petition. C.B. v. DCF, 975 So.2d 1158 (Fla. 5th DCA 2008).
  • Reversing denial of shelter where DCF not permitted to present evidence of parent’s substance abuse. DCF. v. E.G., 939 So.2d 226 (Fla. 5th DCA 2006).

A sixth opinion, however, did look at the question of what constitutes harm under Chapter 39: a 2006 case involving a lesbian couple. D.E. v. R.D.B., 929 So.2d 1164 (Fla. 5th DCA 2006). In that case, the mother’s ex-partner (denoted “former lesbian lover” in the opinion) sought custody through a dependency action by providing expert testimony that her separation from the child could cause psychological harm to the child.  (It’s unstated in the opinion whether the expert had been able to evaluate the child or was testifying generally.) Judge Lawson affirmed the denial of the petition, holding that a parent’s decision to cut a child off from a non-parent is not grounds for a dependency. Instead of referring to Chapter 39 which (problematically for the ruling) describes a broad range of cognizable harms, Judge Lawson cited to dissolution cases that dismissed dependencies based on relocation of a child or a child’s general apprehension as to the conduct of the parties. The detailed statutory analysis seen in other opinions by Judge Lawson is not found here.

This would not be Judge Lawson’s last case involving lesbian parents. In T.M.H. v. D.M.T., 79 So.3d 787 (Fla. 5th DCA 2011), the issue of parental rights in a lesbian relationship was again before the court. This time, one partner transferred her eggs to the other partner, who carried and gave birth to the child. The couple then raised the child together for years, and — as couples sometimes do — separated. The majority held that both women had parental rights in the child. Judge Lawson issued a lengthy dissent, arguing that only the birth mother had any rights to the child under the statute and common law. The biological mother, under this reading, was an ovum donor to her own partner and that fact violated neither Due Process or Equal Protection. The Florida Supreme Court, in D.M.T. v. T.M.H., 129 So.3d 320 (Fla. 2013), agreed with Judge Lawson’s statutory construction, but ruled that a system that treated heterosexual and same-sex couples differently in such a fundamentally important way violated the constitution.

Special Immigrant Juvenile cases

The Florida Supreme Court is currently reviewing several cases involving private dependency petitions brought on behalf of unaccompanied alien children. Judge Lawson has not written any opinions on this issue, but he has concurred in two that are relevant.

In 2006, the Fifth District affirmed a finding of dependency against the abusive non-parent custodian of an alien child. In doing so, the Fifth noted that the Department and court had obligations under section 39.5075 with regards to the child’s immigration status. Morcroft v. DCF, 929 So.2d 51 (Fla. 5th DCA 2006) (J. Lawson concurring).

In 2010, the Fifth District reversed the denial of a dependency petition where both parents were deceased and an uncle was caring for the child. In doing so, the Fifth rejected the argument that the court had no jurisdiction because the Attorney General had not issued specific consent (or, more properly, found that the argument was not supported by any evidence regarding the removal proceedings), and declined to dismiss the case as moot when the child turned 18 pending appeal.  L.T. v. DCF, 48 So.3d 928 (Fla. 5th DCA 2010) (J. Lawson concurring).

In O.I.C.L., the Florida Supreme Court recently ruled, in a 3-1-3 plurality, that a dependency becomes moot when an alien child turns 18 pending appeal. Justice Perry joined the dissent in that case. Judge Lawson’s vote, if consistent with his 2010 concurrence, wouldn’t have changed that outcome. Another related case was just briefed for mootness and an opinion is pending.

Concurrences

Judge Lawson concurred in 32 child welfare cases over the years. I’ve categorized them below based on what appears to be the primary basis of each ruling. What arises out of these concurrences is a judge who does not like due process “gotchas” but will defer to common sense on procedural matters, a judge who will reach for statutes and rules to explain substantive decisions, and a judge who is comfortable deferring to trial judges in most cases. Judge Lawson had no trouble reversing a case for a clear statutory violation, such as in a 2012 ICWA case. The five times Judge Lawson joined in reversing a trial judge on the strength of the record, however, the facts supporting the order were either stale or nonexistent.

The rest of this post is a list of cases, so I will say here: Congrats to Judge Lawson on the appointment. A happy retirement to Justice Perry.

Due process rulings

  • Reversing TPR by implied consent where trial court held serial advisory hearings. R.A. v. DCF, 83 So.3d 841 (Fla. 5th DCA 2011).
  • Reversing TOS where parent and DCF had different understanding of “maintain and strengthen” goal and mother’s eligibility for reunification. A.L. v. DCF, 53 So.3d 324 (Fla 5th DCA 2010).
  • Aligning with Fourth District that motion to dismiss at trial is not required to preserve sufficiency of evidence arguments. R.P. v. DCF, 49 So.3d 339 (Fla. 5th DCA 2010) (mem.)
  • Reversing TPR by default where parent made efforts to appear and requested to appear by phone. B.D. v. DCF, 46 So.3d 650 (Fla. 5th DCA 2010).
  • Reversing case plan order where order was internally inconsistent. L.M. v. DCF, 19 So.3d 1153 (Fla. 5th DCA 2009).
  • Affirming TPR grounds not found in petition where no objection raised at trial. 940 So.2d 577 (Fla. 5th DCA 2006).

Statutory or procedural rulings 

  • Affirming order requiring uncharged parent to participate in services. F.O. v. DCF, 94 So.3d 709 (Fla. 5th DCA 2012).
  • Affirming case plan requiring drug court participation over objection of parent. J.W. v. DCF, 84 So.3d 1157 (Fla. 5th DCA 2012).
  • Finding a statutory right to counsel in private TPR proceedings. T.M.W. v. T.A.C., 80 So.3d 1103 (Fla. 5th DCA 2012).
  • Finding violation of ICWA required reversal of TPR. G.L. v. DCF, 80 So.3d 1065 (Fla. 5th DCA 2012).
  • Finding statutory authorization for “no new law violations” case plan task. S.S. v. DCF, 75 So.3d 818 (Fla. 5th DCA 2011).
  • Denying petition to review trial court’s denial of step-father access to dependency proceeding. R.L.F. v. DCF, 63 So.3d 902 (Fla. 5th DCA 2011).
  • Parent not entitled to attorney after surrender and therefore payment for services not authorized. Justice Administrative Com’n v. McNeilly, 59 So.3d 302 (Fla. 5th DCA 2011) (mem.)
  • Reversing permanent guardianship order where no finding made why reunification with father was not possible as required by statute. R.T. v. DCF, 27 So.3d 195 (Fla. 5th DCA 2010).
  • Holding there is no mechanism to raise ineffective assistance of counsel claims and certifying question to Florida Supreme Court. L.H. v. DCF, 995 So.2d 583 (Fla. 5th DCA 2008).
  • Applying rule of parental preference and permitting parent to rescind custody agreement without showing of fraud or duress. D.B. v. W.J.P., 962 So.2d 949 (Fla. 5th DCA 2007).
  • Remanding long-term custody order to comply with statutory requirements. 944 So.2d 481 (Fla. 5th DCA 2006).
  • Affirming denial of foster parent’s motion to review change of placement where no clear abuse of discretion found. Guardian ad Litem Program v. DCF, 936 So.2d 1183 (Fla. 5th DCA 2006).

Affirming trial court on facts

  • Affirming dependency for father with medically needy child. A.J. v. DCF, 111 So.3d 980 (Fla. 5th DCA 2013) (“The parents and child have had a rough road to navigate and will continue to face monumental obstacles. The purpose of the finding of dependency is not to punish the parents, but rather to help them meet the needs of a very challenged little girl.”).
  • Affirming TPR for failure to comply with case plan tasks by abusing prescription drugs. T.K. v. DCF, 67 So.3d 1197 (Fla. 5th DCA 2011) (“In short, this mother is the face of a problem of epidemic proportions—the obtaining of large quantities of prescription medications from numerous physicians.”).
  • Affirming TPR for failure to comply with drug treatment. C.K. v. DCF, 65 So.3d 1179 (Fla. 5th DCA 2011).
  • Affirming TPR for egregious abuse where father failed to seek medical treatment for severe injuries for 6 hours. J.R. v. DCF, 28 So.3d 117 (Fla. 5th DCA 2010).
  • Affirming TPR for failure to comply with case plan. D.C.J.-S. v. DCF, 16 So.3d 267 (Fla. 5th DCA 2009) (mem.)
  • Affirming TPR where parent would be incarcerated for 60% of child’s minority. J.W.B. v. DCF, 8 So.3d 1191 (Fla. 5th DCA 2009).
  • Affirming TPR where evidence showed little progress of parent. J.Y. v. DCF, 10 So.3d 168 (Fla. 5th DCA 2009) (“[It] is far better for [this child] to be placed for adoption with a loving and stable family than it is to have [her] remain in foster care any longer awaiting the rehabilitation of [her] parents which will likely never occur.”).
  • Affirming TPR where placement with mother and grandmother was not found to be in best interests of child. C.F. v. DCF, 982 So.2d 1249 (Fla. 5th DCA 2008) (“Though we have great sympathy for the mother, we are not in a position to second guess the considered judgment of the trial court.”).
  • Affirming TPR for both parents where DCF could not prove which parent committed egregious abuse. S.E.G. v. DCF, 977 So.2d 707 (Fla. 5th DCA 2008).

Reversing trial court on facts

  • Affirming TPR but reversing abandonment findings for parent who visited regularly and provided toys and clothing. C.B. v. DCF, 199 So.3d 528 (Fla. 5th DCA 2016) (mem.).
  • Reversing denial of reunification for improper reliance on facts of original dependency without regard to progress of parent. J.C. v. DCF, 77 So.3d 1277 (Fla. 5th DCA 2012) (mem.).
  • Termination for abandonment not the least restrictive means where DCF fails to show why parent would not be amenable to reunification. R.L. v. DCF, 63 So.3d 920 (Fla. 5th DCA 2011).
  • Reversing finding of abandonment for incarcerated father where DCF failed to present evidence of frequency and type of communications between father and child and ability to financially support. B.T. v. DCF, 16 So.3d 940 (Fla. 5th DCA 2009).
  • Reversing denial of visitation for father where no evidence that substance abuse would place child at harm during supervised visits. B.H. v. DCF, 923 So.2d 609 (Fla. 5th DCA 2006).

Florida DCF Adopts LGBTQ Group Home Protections on Transgender Day of Remembrance

Today is Transgender Day of Remembrance, a yearly memorial to transgender people who lost their lives to violence. Reports of homicides of transgender people have increased over the last years as families and friends of trans victims refuse to allow their identities to be erased. This year in Florida we remember with sadness India Clarke from Tampa, Vanessa Santillan from Miami, and Kristina Reinwald from Miami.

It is therefore deeply meaningful that today the Florida Department of Children & Families published its latest draft of group home rules incorporating protections for trans and gay youth, so that foster youth in group care can live openly, safely, and without discrimination or fear in their own homes. The rules are the result of hard work and dedication by the LGBTQ Child Welfare Network, a group of advocates and good people at DCF and other agencies who are standing up for LGBTQ youth across the state.

If you would like to join the LGBTQ Child Welfare Network and get more information on advocacy efforts for Florida’s LGBTQ youth in out-of-home care, you can do so by clicking here.