Florida Supreme Court lifts stay on SIJ cases, agrees to hear TPR case

The Florida Supreme Court last week lifted the stay on two private petition cases out of the Third DCA: KBLV and BYGM. The Florida Supreme Court recently heard oral argument in OICL, a case involving a child in the physical custody of an uncle who sought a dependency adjudication based on the uncle’s lack of legal custodianship. In contrast, the two new cases involve children in the custody of their mothers who sought dependency adjudications based on abandonment by their fathers. The children argue that without the adjudication of dependency, they will be returned to the care of their fathers and thus will be at risk of harm.

The Court simultaneously stayed two other cases which were decided by the Third in December 2015: EPN and BRCM.  These cases involve children in the custody of a mother and a godmother, respectively. Both cases drew lengthy dissents from Judge Salter.

The Florida Supreme Court has also agreed to review, without oral argument, the case of S.M. v. the Department of Children & Families. This case arises from a termination of parental rights. The mother was originally accused of neglect, and appears to have had an ongoing marijuana dependency and lack of employment. The children were placed with the mother’s relatives. The mother argues that termination was not the “least restrictive means” of protecting the children from harm where relatives were available and there was no allegation that her continued contact with the children posed any risk of harm. The Fourth DCA found that the existence of a relative placement was not sufficient to defeat a termination of parental rights.

Reading these cases side by side, it’s hard not to notice the incongruous rulings. In one set of cases, the rights to a child could be terminated even if the child was safely in a relative placement; but in the other set, the child could not even be adjudicated dependent because  of the relative and non-relative placements. In the first set, the child will have ongoing safety due to a court order. In the second set, the child will be all but guaranteed to return to danger because of the failure to enter a court order. I leave it to the reader to craft some clever logic to reconcile the two outcomes. It appears to me that immigration status is the major distinguishing feature.

Independent Living Orders for July – August 2013

Through an agreement with the good people at Florida Administrative Law Reports, I’m happy to be able to share with you the Independent Living fair hearing final orders that would not have otherwise made it into the published FALR. The previous batch is analyzed at Independent Living Final Orders for April – June 2013.

In this batch I received 15 orders ranging in dates from July 2 to August 15, 2013. All of the orders involved RTI terminations.

The numbers of orders per county were as follows:

  • Pinellas County = 1
  • Orange County = 1
  • Volusia County = 1
  • Palm Beach County = 5
  • Miami-Dade County = 7

As in the past, Our Kids in Miami-Dade County had the highest number of orders. Our Kids is also the only CBC that intervenes with their own attorney against the youth.

Only three of the youth had representation at their fair hearing, and the lawyers made notable contributions to the proceedings. Wendy Cox in Pinellas County was able to settle her fair hearing and preserve the issue of back-pay of RTI in K.B. Kele Stewart and her students with the Children and Youth Law Clinic in Miami-Dade County were able to make sustained evidence objections in M.B.B. And Wendy Robbins in Miami-Dade County put her client on the stand in M.R.

In contrast, none of the pro se petitioners presented exhibits or testimony. Instead, their statements at the hearing seem to have been universally categorized as argument. Obviously this is a huge problem–argument isn’t evidence. In many orders the hearing officer summed up the youth’s position as “the youth does not dispute the allegations.”

Additionally, no school officials testified in any of the hearings about their school’s academic standards or the youth’s enrollment status. In many final orders, it appears that the sole source of evidence of the school’s academic standards came from the DCF employee who determined eligibility.

Most of the cases involved youth seeking good cause exceptions:

  • due to hospitalization (A.O.)
  • due to seizure disorder (V.J.)
  • due to inability to afford books/fees (D.F.D.J.)
  • due to lack of relevant classes and death of an uncle (J.W. III)
  • due to moving out of county and having to restart school (A.M.)
  • due to housing problems (M.R.)
  • due to caring for sick relatives and to protect her GPA (M.B.B.)
  • due to incarceration (O.H.)
  • due to fear of domestic violence by her child’s father (J.P.)

None of the petitioners requested an administrative waiver or variance under section 120. None of the hearing officers found any “good cause” exceptions to the RTI requirements. And, notably, none of the petitioners argued and none of the hearing officers analyzed the facts under the limited exception created in B.P. – 11F-09383, which reversed an RTI termination for circumstances outside of the petitioner’s control.

All of the cases that went to hearing had unfavorable outcomes, terminating the youths’ RTI. The exceptions were limited to one case that was dismissed as moot because the youth aged out of the program (A.O.), one that was an untimely filed appeal several years late (J.W-H.), and another that was settled prior to hearing (K.B.).

For now, all of the collected Final Orders are archived at  https://drive.google.com/folderview?id=0B_qBug5546qWZ3E3ak5lSmwzSUk&usp=sharing . If you sign in to Google and click “Open in Drive” at the top right, the orders are sortable and searchable. I’m still looking for a better way to make them publicly accessible. 

Normalcy Bill Passes!

I’m a day late (and more than a dollar short)–the Normalcy Bill has passed and will be sent to Governor Scott! Congrats to Florida Youth Shine and everyone else who worked together and very hard to make this a reality. 

I sat in the school’s food court today underneath a television showing news coverage of the Sandy Hook Elementary shooting. People around me stopped and stared. Some turned away; others called people over to see. I have no words.

Millions of Ame…

Millions of Americans with disabilities have gained innumerable rights and opportunities since Congress passed landmark legislation on their behalf in 1990. And yet advocates say barriers and bias still abound when it comes to one basic human right: To be a parent.

A Kansas City, Mo., couple had their daughter taken into custody by the state two days after her birth because both parents were blind. A Chicago mother, because she is quadriplegic, endured an 18-month legal battle to keep custody of her young son. A California woman paid an advance fee to an adoption agency, then was told she might be unfit to adopt because she has cerebral palsy.

Such cases are found nationwide, according to a new report by the National Council on Disability, an independent federal agency. The 445-page document is viewed by the disability-rights community as by far the most comprehensive ever on the topic – simultaneously an encyclopedic accounting of the status quo and an emotional plea for change.

http://www.huffingtonpost.com/2012/11/26/disabled-parents_n_2190725.html

 

“I’m not telling you to make the world better”

“I’m not telling you to make the world better, because I don’t think that progress is necessarily part of the package. I’m just telling you to live in it. Not just to endure it, not just to suffer it, not just to pass through it, but to live in it. To look at it. To try to get the picture. To live recklessly. To take chances. To make your own work and take pride in it. To seize the moment. And if you ask me why you should bother to do that, I could tell you that the grave’s a fine and private place, but none I think do there embrace. Nor do they sing there, or write, or argue, or see the tidal bore on the Amazon, or touch their children. And that’s what there is to do and get it while you can and good luck at it.”

― Joan Didion