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News & Notes

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.

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News & Notes

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).
Categories
News & Notes

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.

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News & Notes

DCF holding workshop on Extended Foster Care and PESS rules today

The new Independent Living Program went into effect on January 1, and since that time it’s been operating without administrative rules. That’s not for lack of effort to get rules passed. Good people have been working on this: a previous round of proposed rules, which were detailed and provided lots of support to youth and guidance to workers, was rejected by the governor’s office. This round of proposed rules does almost nothing except create the forms that have to be filled out and tells youth how to appeal the decision if they get cut.

The new proposed rules are here:

On each of those sites, click “View Notice” and it will open a Word Doc that contains the proposed rules.

The workshop is open to the public. If you want to participate, you need only call in: 1-888-670-3525 Code: 3148793079#.  EFC is 10:00-12:00 and PESS is 1:00-3:00.

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Legislation News & Notes

Now Hiring: Attorneys for Children

Florida’s dependent children finally have attorneys, or at least some of them do. Governor Scott today signed into law House Bill 561, which creates section 39.0135, entitled Appointment of an attorney for a dependent child with certain special needs, for:

  1. children who reside in or are being considered for placement in a skilled nursing home,
  2. children who have been prescribed a psychotropic medication and do not assent to take it,
  3. children with a diagnosis of developmental disability (autism, intellectual disability, spina bifida, Prader Willi Syndrome, Down Syndrome, or cerebral palsy),
  4. children who are placed in or who are being considered for placement in residential treatment centers, and
  5. children who are victims of human trafficking.

The passage of the law is, by itself, spectacular. It had the public support of the Department of Children and Families, the Guardian ad Litem Program, and the existing pro bono children’s bar. It passed both chambers unanimously. And its implementation thus far has energized and mobilized the children’s bar to prepre to welcome and support new attorneys who will come into the practice starting July 1.

What is even more important, however, is that the law does not limit an attorney’s representation solely to the chapter 39 dependency proceedings. Instead, the attorney is to provide a “complete range of legal services” for the duration of the case, which has been interpreted by everyone I’ve talked to to mean full holistic representation. Therefore, an attorney with a client diagnosed with a developmental disability would be responsible for seeking services for that child from APD through administrative appeals and beyond. An attorney with a client in a skilled nursing home could challenge the lack of available alternatives under Olmstead. An attorney with a human trafficking client involving pornography could bring a restitution claim, or could seek civil action against organized crime involved in the child’s exploitation. If the client is being considered for a residential treatment center, the attorney might not only challenge the placement but hold the facility accountable to the myriad of state and federal regulations involving treatment of children in RTCs. In a typical dependency case, the lack of available substance abuse programs would be a class action, not a continuance.

Child representation in Florida just got real.

Inviting lawyers to work in child welfare may sound like a tough sell. But, I can imagine a child welfare system that is a hub for positive legal and social change, where innovative, justice-minded attorneys come together with families, social workers, and community members to disrupt and mend the public and private institutions that have abused, abandoned, and neglected the weakest children and families in our state. In that world we would expend less effort sorting families into permanency goals or keeping track of federal compliance measures, and instead focus our energies on punching out towards the things that are dragging family after family into our courts. Any Florida attorney who is interested in joining that fight, apply within.

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Case Law Updates News & 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.

 

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News & Notes

ILSAC Meeting on Tuesday

ILSAC is meeting on Tuesday, June 3, in a webcast event. What a wonderful opportunity to express exactly how EFC has been going thus far.

Independent Living Services Advisory Council Meeting

Event Type: Public Meeting
Date/Time: Tuesday, June 3, 2014 – 13:00 to 16:00
Location: webcast event
1317 Winewood Blvd.
Tallahssee  Florida  32399

United States

 

The purpose of the meeting is for the Independent Living Services Advisory Council to conduct general Council business and continue their efforts for redesigning the Independent Living program and services.

For more details visit http://www.myflfamilies.com/service-programs/independent-living/20140603-ILACmtg

Pursuant to the provisions of the Americans with Disabilities Act, any person requiring special accommodations to participate in these meetings is asked to advise the agency at least 48 hours before the meeting by contacting:Becky Pengelley at Becky_Pengelley@dcf.state.fl.us.

Groups audience:
Categories
Case Law Updates News & 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.

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News & Notes

Florida Bar News: Foundation supports Miami Law’s advocacy for foster youth

Image

We could not be prouder of both of the clients in this article. Thank you to the Florida Bar Foundation and everyone who made success (defined in very different ways) possible for them.

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News & Notes

Mike Carroll, new DCF Secretary, speaking at National QPI Conference in 2012

“If you’re in the business of child welfare and you’re not mission driven, this thing doesn’t work.”