Is HB 803 More Likely to Cause Another Barahona Than Prevent One?

House Bill 803 (the Silver Bullet Bill) has passed unanimously in the Florida House.  Since it’s being hailed as the thing that will prevent Barahona from ever happening again, let’s take a look at what it actually does. Spoiler alert: it does very little that would have actually prevented Barahona, and does a few things that may make another Barahona MORE likely. So good work, everyone.

These are my first thoughts, subject to change, revision, and complete disavowing later. Here we go…

1. Makes it easier to terminate someone’s rights for abandonment.

This change has nothing to do with Barahona. Currently, in order to prove abandonment, you have to prove both that the parent (1) had no relationship with the child, AND (2) provided no monetary support. The examples I usually give are these:  If you leave your child on a street corner, you haven’t abandoned her as long as you send cards every week and listen to her problems (relationship!). (Note: you have possibly neglected her, depending on her age and ability to care for herself.) If you quit sending cards and instead send a check (financial support!), you still haven’t abandoned her even if she has never met you in person (See Dickens, Charles. Great Expectations.) It is only abandonment under current law if you fail to send cards AND fail to send money. By changing the “and” to an “or” it will be required that you send cards with money in them or face losing your kids. In either case, cards may not be sufficient given your ability to have a more substantial relationship. If you live two blocks over and only send cards, that’s not going to be enough.

Additionally, repeated or extended incarceration is now a recognized form of abandonment. How repeated or extended does it have to be? The statute doesn’t say. How is this “extended” incarceration different from the “significant” incarceration required in the new 39.806(1)(d)? That’s not clear either.

Are these good changes? Depends on how you feel about terminations of parental rights and how much you want to dig into the socio-economic factors behind them. Chronic jail stints may be a sign of mental health issues (note that 39.806(1)(d) was added to the list of situations where reasonable efforts are NOT required); failure to pay child support may be a result of a bad economy instead of bad intentions. The State (DCF, judges, etc) will have more discretion to take kids away from loving but poor homes. I expect the Manifest Best Interests factors and Least Restrictive Means analyses will have to go into overdrive to prevent unjust results.

2. Creates a jurisdictional hook and adds procedures for 39.504.

Currently nobody is really sure what jurisdiction the court has to issue 39.504 injunctions in cases that don’t even have case numbers yet because there’s been no shelter or dependency petition. This clears that up.  This seems like a good change.

The bill also adds a bunch of procedures for initial injunctions. That’s also somewhat welcome. Obviously this is all a response to DCF v. D.B.D., 42 So.3d 916 (Fla. 4th DCA 2010).

What isn’t addressed is that this whole scheme may be unconstitutional. Under this law, based solely on probable cause, you can order someone out of their house, to have no contact with their children, to undergo services, and to pay for someone else’s services–all for a possibly indefinite amount of time with no apparent standard for when the injunction must be lifted. In fact, one House subcommittee analysis says “This change will assist DCF by not requiring one of these other petitions when all that may be needed to resolve a situation is an injunction to protect the child.” I think this is ripe for abuse.

3. Allows jurisdiction over kids who are not in anybody’s custody.

This cleared up a drafting quirk. I’ve never heard of any court denying jurisdiction because the child was a runaway, but just in case…

4. Changes the background checks in home studies. 

Under current law, the homes of potential custodians have to undergo a home study and all persons in them must have background checks with fingerprinting, even the babies. This was obviously silly. This is a good change.

What is more serious, however, is that “frequent visitors” to the home also currently have to be screened. How frequent is frequent? Nobody knows. Boyfriends and girlfriends are usually included, but what if the custodian has a weekly bridge club? Do all of the old ladies have to undergo fingerprints, and when they don’t cooperate do the children have to stay in foster care?  This rule, as it stands, is completely unworkable. The amendment makes it worse by removing the word “frequent” and requiring ALL visitors to the home to have background checks and fingerprints. Nobody can come across the threshold unless they have FBI clearance. I can’t imagine any reasonable person volunteering to take a child into their home under such constraints. You couldn’t even have a normal birthday party.

I understand the horrible stories about the unscreened boyfriends who kill foster kids, but those are extreme cases, not the norm. You should do a background check on the person you are entrusting the child to–it is then their job to make sound decisions about who is involved in the child’s life.  You can’t screen everyone who will ever be in the same room as a foster child–it’s unrealistic. At some point you have to trust.  This is a terrible amendment and I hope nobody seriously enforces it.

5. Parents can call cases in on themselves and receive services.

It’s rare, but it happens.  I think this is ok. It provides a clear safety valve for cases that don’t appear to be dependencies but would otherwise be designated as such out of sympathy for a struggling parent.

6. Protective investigators can stop investigations if they deem them based on false allegations.

This was happening more or less anyway. CPIs would just stop working as hard–now they can stop working altogether.

There were other problems with the original statute, though. Assume that the Department gets it wrong: the allegations are accurate but the Department does not or chooses not to believe them. The current rule requires them to then get permission from the alleged abuser (who will say no!) in order to forward the information to the police. That’s ridiculous. If they think a crime has occurred, they should be required to forward it to the police to determine if the allegations were in fact false. Hopefully the police will do an investigation and discover that the allegations were in fact true. Will the police make that effort? That’s another legal problem altogether.

This change creates incentives to halt investigations prematurely. Who “determines” that an abuse report was falsely called in?  How is that reviewed and monitored? How can the public know that CPIs will not just ignore calls they don’t want to work on for various reasons, be they political, personal, or racial biases, or just plain laziness. It’s so easy in early investigations to choose to disbelieve, when all of the facts aren’t yet in. If anything caused Barahona, it was exactly this. You’re going to ask Carmen Barahona if it’s ok to forward the allegations against her to the police and just stop all investigation when she says no? What a legacy to enshrine in law.

7. Reworked the protective investigation requirements.

Who knows if this will have any effect…you can’t regulate incompetence.

But answer me this: with their track record, why is the Department being given more discretion to not file cases? Is this based on any empirical study or is this just a swing of the pendulum? Wasn’t the lesson from Barahona the danger of failing to act on reasonable suspicion?

8. Reintroduces “maintain and strengthen” as a permanency goal.

There once was a permanency goal called “maintain and strengthen,” which was what you did when a child wasn’t removed from the parent. Then that goal was eliminated and you just had “reunification.” This was fine, unless you sheltered a child from one parent and placed him with a non-offending parent–the goal implied that you had to eventually reunify the child with the offending (but presumably rehabilitated) parent. Cases came down left and right finding a due process violation for giving a parent a case plan and then not giving them their child back at the end of it. Children were ripped from the non-offending parent, with no considerations for their well-being. It was a huge mess. Now you can signal that those kids are staying put. This change is good if people use it correctly.

9. Attempts to fix the “how long can a case plan be for?” problem.

Currently there is some cryptic language about the term of a case plan being 12 months from either the date the child was removed or the date the case plan was accepted, “whichever occurs sooner.” The word “sooner,” of course, has huge relativity problems: sooner than what? The bill changes the word “sooner” to “first” (good!) and adds the date the child was adjudicated dependent as another possible time post (ok…).

What they don’t do is alleviate any of the contradiction that there isn’t just one case plan, nor do they acknowledge that a series of case plans can actually extend way beyond 12 months. If this was intentional–that no case shall ever go longer than 12 months for any reason–then I wish they would just say it and let the court find it unconstitutional and move on.

10. Changes the incarceration TPR ground.

You can terminate a parent’s rights in Florida if they will be incarcerated for a “substantial” portion of the child’s minority. The Supreme Court has decided that this “substantial” portion is purely a numbers game–approximately 60% of the time between now and the child’s 18th birthday is “substantial.” This has perverse results: a parent must be incarcerated for 11 years to terminate their rights to a newborn, but only 1 year to terminate their rights to a 16.5-year old. I don’t know if changing the world “substantial” to “significant” actually prevents the court from coming to the same conclusion, except that everyone knows that nobody liked the first conclusion they came to. This language about “consider the child’s age and the child’s need for a permanent and stable home” is also weird to me because those are best interests factors. Don’t repeat them in the grounds! Grounds are for what the parent has done wrong. Best interests are for the subjective considerations of whether the TPR is appropriate for this child. The drafters would have done better to just make a chart and tell us exactly how many prison years they want us to use and then we can talk best interests when overriding those numbers. This amendment is just more of the same confusion we already had.

11. Adds factors to the “best interests” incarceration ground.

We generally believe as a society that we shouldn’t TPR just because it is “best” for the child, but instead because the parent has actually done something wrong. On this Judge Schwartz and I agree. This ground, 39.806(1)(d)3, was always the worst offender of “TPR for best interests” because it literally says to TPR for best interests if the parent is in jail. The newly added factors don’t really change that and actually seem to just blur the lines between TPR for abandonment. The factor “any other factor the court deems relevant” is such a catchall that it swallows whatever rule they were trying to create. That’s no help at all.  This ground should be removed, not polished.

12. Changes 39.806(1)(e) back to 12 months.

Well at least someone noticed this conflict. A case plan runs for 12 months, but a past amendment to 39.806(1)(e) allowed a TPR at 9 months. We already have a “material breach” provision that allows bringing TPRs if the parent looks unlikely to finish in under 12 months. Changing it to 9 didn’t help, and actually only rushed things for people who were still genuinely trying.

13. Modifies the statutory “reasonable efforts” requirements.

This was always strange to me. Reasonable efforts to reunify a family are statutorily waived in certain situations. These are often thought of as the “expedited TPR” scenarios. Courts have generally ignored those enumerated situations except when they correspond to their own least restrictive means jurisprudence.  Instead of calling it quits, the legislature is actually seeking to modify the list that was generally being ignored. The modifications are as follows: abandonment and “irrespective of services” are added to the list of situations in which you don’t need reasonable efforts (i.e., you can file an expedited TPR), but failure to comply with a case plan is removed (which maybe wouldn’t have made any sense at the beginning of a case anyway).

These changes have their own problems. If you take the list as exclusive, it implies that reasonable efforts to reunify ARE REQUIRED when a parent attempts to surrender under 39.806(1)(a). Imagine: a parent surrenders and the department then has to attempt to talk them out of it? It also implies that reasonable efforts must continue even if the court finds material breach under 39.806(1)(e)(2). Maybe the efforts are impliedly no longer reasonable? It’ll take four or five court decisions to hash that out. This “no reasonable efforts” broad categorization is not helpful at all. Let MBI and LRM sort out what’s ripe for TPR and what’s not.

Conclusion: there’s some good, bad, and ugly in there. I certainly wouldn’t vote yes on it, but apparently the entire House disagrees with me. Maybe someone in the Senate will actually read more of it than just the title.