We fully agree with the C.N. panel’s well-reasoned conclusion that breach of a no new law violation condition, standing alone, is insufficient to terminate parental rights. But, we disagree with the conclusion, in dicta, that no such condition may be imposed in the first place, or that doing so violates the separation of powers doctrine.
S.S. v. DCF, — So.3d —-, 2011 WL 6101945 (Fla.App. 5 Dist.)
This is great news. I know that in Miami, at least, the opinion of C.N. (out of the Second) caused an immediate flurry of case plan amendments ripping “no new law violations” out of case plans. The Fifth does a good job of explaining why that’s not necessary or logical.
I will add a few thoughts. I stand by my description of case plans as “due process machines.” They put a parent on notice of what is expected of them and, at a TPR trial, those are the things that can reasonably be addressed as points of failure. Case plans, however, contain lots of instructions and tasks that some case managers describe as “boilerplate” but I like to describe as “essential to a well-functioning system.” Those tasks include maintaining contact with the case manager, updating the case manager on changes of address, participating in various staffings, signing various releases. “No new law violations” sometimes falls into this category of administrative tasks: parents in jail have almost no access to the services they are supposed to be participating in. Being arrested for a willful act is equivalent in most cases to moving out of state or declaring you’d like to take summer off from services. Such behavior does not expedite permanency for the child.
But should a single violation of that task be grounds for termination? Probably not. The definition of “substantial compliance with the case plan” has almost nothing to do with the individual tasks, except that failure to participate in or successfully complete the services is prima facie evidence of continuing abuse/abandonment/neglect under 39.806(1)(e). The question of substantial compliance is whether the parent has made sufficient progress that it is safe to return the child to the parent’s home. Failure to sign medical releases may have no bearing on the safety of the child. Being arrested for a crime may have no bearing on the child’s safety either.
But they may. The excess of C.N. was that it appeared to say that it was never a permissible case plan task to forbid a parent from committing further violations of law. “Never” is an overly restrictive word in the necessarily case-by-case workings of dependency law. In a case where the parent’s case plan was created to remedy abandonment due to repeated incarceration, it would be perfectly natural to have a case plan task forbidding willful violations of law. In fact, it would be the core measure of compliance regardless of whether it was in the case plan or not.
Compare it to substance abuse. Should one relapse be considered a material breach if the parent was otherwise making progress? No. Should one violation of law be considered a material breach if the parent was otherwise stabilizing her life? No. Should the thirtieth law violation be considered a material breach? Possibly. Should a parent be put on notice that willfully committing future violations of law may be grounds to find material breach? Definitely. The Fifth got this one right.