Fourth DCA rules against DCF on risk of harm. Do we need better laws or better lawyers?

I’ve read the Miami Herald’s Innocents Lost series with frustration, sadness, and a feeling of powerlessness. The calls for system change, better services, and more realistic funding, articulated brilliantly by many other people, are overdue and welcomed.

The parts of the series briefly dealing with lawyers struck me, however, in particular because I am a lawyer who has worked both “in the system” and now adjacent to it. Here is an example:

The Herald’s study of child deaths found that in at least 49 cases, children died after a lawyer overruled staff and said the department didn’t have legal cause to file a court petition on behalf of a child. Filing a court petition and advocating for it costs money. If an agency’s policy is to preserve the family wherever possible and conserve resources, a lawyer employed by that agency might be conflicted.

Read more here:

Throughout the series, lawyers are depicted as roadblocks, conflicted and obstinate, with no examination of whether their actions were actually supported by or required by the law they swore to uphold. Reading the stories I was bothered by the clear fact that much of the advice given by these anonymous lawyers, at the time it was given, was arguably consistent with law as it stands today. I use the term “consistent with the law” very technically to mean that the decisions were minimally supported by case law, not that the decisions were morally right or based on good judgment. The scenarios involving children left with drug-using and drug-abusing parents, or where domestic violence was not sufficient to justify removal–those same decisions are found and applauded in case law, derived from strong conservative legal principles in Florida, based on decades of case law that is unsurprisingly anti-government and often unapologetically pro-parental rights.

An example, in fact, has come down since the Herald’s series, highlighting what substantive child welfare law looks like in Florida. Yesterday, the Fourth District Court of Appeal released an opinion involving two siblings. One sibling, a girl, was abused by the father arising from “incidents involving her interaction with young men.” The trial court found that the other sibling, a boy, was either abused or was at risk of harm. The Fourth reversed the dependency on the boy based on a lack of proven risk of harm, writing:

 The abuse of one child is insufficient in and of itself to prove that a parent’s other children are also dependent. In re S.M., 997 So.2d 513, 515 (Fla. 2d DCA 2008); see also In re M.F., 770 So.2d 1189, 1194 (Fla.2000). “[T]he Department must establish the required elements of dependency as to each child individually.” In re S.M., at 515.

Although the Department also alleged that the child was dependent based upon a substantial risk of imminent abuse or neglect pursuant to section 39.01(15)(f), Florida Statutes (2013), the trial court made no findings with respect to the risk of imminent abuse. The Department must prove that there is a nexus between the parent’s abuse of one child and the risk of abuse to another child. “This analysis focuses on the parent’s behavior and whether that behavior or the circumstances surrounding that behavior permit a reasonable prediction that the parent will visit similar abuse or neglect on the child’s siblings in the near future.” In re S.M., 997 So.2d at 515.

W.R. v. Dep’t of Children & Families, 4D13-3508, 2014 WL 1225310 (Fla. 4th DCA 2014)

It is in this grey area called “nexus” where a lot of bad decisions happen. There is a long documented history of courts using scientifically unfounded, stereotype-based heuristics for assessing risk to the second child. For example, the abuse of step-children has been found insufficient to find a biological child at risk. The sexual abuse of a girl child has been found insufficient to find a boy child in the same household at risk. Domestic violence aimed at a mother and her daughter was found to not be predictive of abuse towards a male child. The list goes on. Florida courts have required that the Department prove that the parent is a risk above and beyond the abuse inflicted on the first child, possibly due to some mental health diagnosis or other factor. When I meet with experts for cases, they are constantly puzzled by this requirement of nexus–they tell me that the abuse of one child speaks for itself. But Florida law does not agree, and cases are lost or dismissed on this theory all the time.

Law is applied and interpreted by lawyers (and judges, which could be a whole other post). Lawyers, like all people, vary in their intelligence, risk tolerance, education, experience, and dedication. Recruiting good lawyers is as difficult and as important as recruiting good investigators. Much was made in the Innocents Lost series of the poor pay of Protective Investigators in the child welfare system ($38,000), but the lawyers involved in the decision-making process are making very little more. According to People First, a new lawyer at the Guardian ad Litem Program can expect a starting salary of $41,267. A Senior Attorney at DCF can expect $52,000. That’s a senior attorney. Put that figure against the U.S. News & World Report article yesterday that students graduating from the University of Miami Law School have, on average, $148,000 in debt, and you can see the problem. Good and dedicated lawyers work in the child welfare system for lots of reasons unrelated to salary, but this is not a pay structure that attracts and keeps good and dedicated lawyers. If we want better outcomes, we must improve the whole system, laws, lawyers and all.


2 responses to “Fourth DCA rules against DCF on risk of harm. Do we need better laws or better lawyers?”

  1.  Avatar

    Maybe we can work next for a loan forgiveness program for attorneys in child welfare system — parent attorneys, GAL, CWLS, AAL

  2. […] (Lakeland) refuse application of the Imminent Risk doctrine, and the Fourth DCA (West Palm Beach) do the same with the Sibling Nexus Doctrine. Yesterday, the Third DCA (Miami) took its turn at yet another risk prediction heuristic: the […]

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