The Florida Supreme Court issued a child welfare opinion, so it seemed like a good time to do a case law review. Here we go…

What guardians ad litem don’t do

The Florida Supreme Court addressed the issue of whether the appointment of a guardian ad litem on a dependency case tolled the statute of limitation on a civil suit based on injury to the child.  The answer: no, because guardians ad litem have no authority to file civil suits.

Twin children were (allegedly) injured at the hands of the biological mother while she was under the care of developmental disability support services. The children entered foster care and were eventually placed in a permanent guardianship with their grandparents. When the grandparents learned of the injuries, three years after being appointed permanent guardians, they filed suit against the agencies involved. The agencies moved to dismiss the suit as barred by the four-year statute of limitations.

The Florida Supreme Court held that, because a dependency guardian ad litem has no authority to file a separate lawsuit on behalf of a child, the four-year limitations period for filing a suit was tolled until the child’s grandparents were appointed as permanent guardians. D.H. v. Adept Cmty. Services, Inc., SC17-829, 2018 WL 5660595 (Fla. Nov. 1, 2018). 

For all you Latin lovers, the term “ad litem” translates to “for the suit.” Litem is the accusative singular of the word lis, which is a feminine third declension noun that means lawsuit, quarrel, or strife. It is the root of the English words litigate, litigation, litigious, you get the point.  It is the actual word in the legal phrase lis pendens, which means “suit pending.” If you’re appointed to multiple lawsuits for the same person/child and want to be grammatically snobbish, you could call yourself the guardian ad lites. I wouldn’t.

Te gratissimum.

What guardians ad litem do do

Apparently they prevent DCF from falling on swords. The Fifth District affirmed the TPR of parents despite DCF’s concession of error. The GAL Program argued the TPR for material breach of the case plan was proper. The Fifth held that the trial court properly considered a father’s lack of efforts on a previous case plan when determining whether he was likely to comply with the latest one. W.D. v. Dep’t of Children & Families, 5D18-2241, 2018 WL 5603041  (Fla. 5th DCA Oct. 5, 2018). 

Count to six

The statute is really clear on this one: cases stay open for at least six months of supervision after reunification. The Fifth District reversed a TOS order that was entered two months after reunification. Dep’t of Children & Families v. J.F., 5D18-3091, 2018 WL 5729086 (Fla. 5th DCA Nov. 2, 2018).

A move towards substantive compliance

The district courts are not very consistent on the question of what constitutes substantial compliance. The Fourth District affirmed the TPR of a mother who argued that she had remedied the circumstances that brought the case in by finding appropriate housing. The operative holding is that “[m]ere completion of services is not equivalent to substantial compliance with a case plan.” A bit of explanatory dicta expands that:

Moreover, it is important to acknowledge that what is initially recognized as a cause for sheltering children is more often than not a symptom of a larger underlying problem which—by definition—must be addressed. Here, the mother’s poor decisions relating to the children prior to DCF intervention were a side effect of her own trauma-based issues. This much was evident by the time the case plan was established. Further, the evidence at trial established as much in that the psychologist transparently linked the mother’s mental health issues with her ability to parent.

C.B., the Mother, v. STATE OF FLORIDA, DEPARTMENT OF CHILDREN AND FAMILIES, 4D18-1732, 2018 WL 5733438 (Fla. 4th DCA Oct. 31, 2018).

TPRs have to be clear and convincing 

Due process roundup 

How long do dependency appeals take?

I’ve been keeping track of how long appeals take for a few months and the numbers are very stable. Half of dependency appeals I’ve reviewed took 124 days or less from filing to opinion. Most cases resolved in month 4 or 5. If your appeal goes into month 6, it’s getting long. By comparison, half of non-dependency cases took 292 days or less, with a much wider range. Only 9% of dependency appeals won, compared to 13% of appeals in general.