N.M. v. DCF (Fla. 3rd DCA) (argued October 17, 2012)

Court: Florida Third District Court of Appeal

Judges: Lagoa, Logue, Schwartz

Attorneys: Thomas Butler for the Father; Sharon Wolling for the Mother (joining the father’s argument); Karla Perkins for DCF; Hillary Kambour for GALP (joining DCF)

Issues: whether the numerous alleged evidentiary errors warrant reversal; whether failure to allow testimony on the child’s recusal amounts to reversable error; whether there is a right to confrontation in dependency cases.

Thoughts: A few interesting features in the discussion stand out. Judge Lagoa says at one point that you could introduce a child’s statements under the party admission exception. That strikes me as wrong, unless they are being admitted against the child, which would be rare unless the child has joined the TPR petition, but still does not seem fair to use them against DCF.  Judge Schwartz raises the LRM/nexus argument from Judge Altenbernd’s concurrence in In re Z.C., 88 So.3d 977 (Fla. 2nd DCA 2012). He then acknowledges that this “more difficult” issue is not before the court.

Predictions: It could go either way. I’d guess an even chance of a reverse and remand for consideration of the testimony concerning the recantation.