Nonoffending Parents Given Fewer Rights than Offenders in Third DCA

The appellant is the mother of two children, K.B. (age nine at the time of the proceedings below) and A.V. (age three). She appeals an order denying her motion for reunification with K.B. in a circuit court dependency case following her substantial compliance with the tasks in her case plan. She has also appealed orders approving a general magistrate’s report finding that custody of K.B. should remain with her father (with visitation by her mother), terminating supervision by the Department of Children and Families (DCF), and terminating the circuit court’s jurisdiction. This case requires us to consider the applicability of different and apparently inconsistent statutory provisions relating to reunification,sections 39.522(2) and 39.621(10), Florida Statutes (2010).

S. V.-R., Appellant, v. Department of Children and Family Services, — So.3d —-, 2011 WL 5375047 (Fla. 3d DCA 2011).

This case is disappointing not only because it’s wrong, but because it is incomplete. The Third DCA has failed to address any of the following questions:

  1. Why doesn’t the more specific standard in 39.521(3)(b)2 apply here? This section directly addresses the disposition procedure for when there’s a non-offending parent, and states “The standard for changing custody of the child from one parent to another or to a relative or another adult approved by the court shall be the best interest of the child.”
  2. What should we make of In re G.M., — So.3d —-, 2011 WL 5061545 (Fla. 2d DCA 2011) (decided October 26, 2011), which applies BOTH 39.621(10) and 39.522(2) to the exact same factual situation, thus creating a endangerment + best interests standard? That seems to render the statutory scheme both consistent and fair.
  3. What about  B.C. v. Dep’t of Children & Families,864 So.2d 486, 491 (Fla. 5th DCA 2004) (“The non-offending parent’s presumptive right to custody is mandatory and not subject to a separate determination of the child’s best interests.”).
  4. Why wasn’t the case plan goal of “reunification with parents” perfected with placement with the nonoffending father? There are no goal options under 39.621 that would avoid this situation–there’s no goal of “maintain and strengthen” or “rehabilitate the offending parent for the purposes of visitation or time sharing”. After this case, lower courts will be dissuaded from offering a case plan at all to the offending parent because they will be forced to spring the child back to that parent’s full custody regardless of any change in situation in the interim. Closing cases with one nonoffending parent might save a lot of money but will also likely result in a lot of re-abuse.
  5. What about the effect on the child? She’s ripped from her home that she doesn’t want to leave just because her mother finally got around to finishing a parenting class. This is contrary to everything we know about child development, psychology, and humane treatment. The system is supposed to promote permanency and stability, not have a sword of Damocles hanging over the head of every child in the home of a nonoffending parent.
The evil of this decision is that it treats a nonoffending parent as though they were any old temporary custodian or foster care provider. The Due Process implications of that alone are huge. Neither the statute nor common sense required this outcome. The Third should grant a rehearing, and the legislature should create more clarity and flexibility in permanency options for future courts.


2 responses to “Nonoffending Parents Given Fewer Rights than Offenders in Third DCA”

  1.  Avatar

    This is a concern of ours (my Fiance and I) at the moment. We’ve had custody of his daughter since the shelter hearing on July 26 of 2011 (prior to that he had 42% custody under parenting plan). Birth mom and her husband (offending parents) haven’t done the first thing to complete their case plan. Now, we are being told that they are going to move for closure of the case and “permanent guardianship” on April 12. Our first thought was, “Finally! It can be over,” and then we were told that birth mom would get weekly visitation and, if she ever completed her case plan, could file to get custody back. I won’t even begin to go into the balls that were dropped by visitation “supervisors” allowing her mother to mess with her head, lie to her about why she was removed, and make grandiose promises she has not attempted to complete, but the poor child is up and down all the time wondering if her mother will make good on promises and do what she needs to do or not. She desperately needs some security and long-term safety in one place and that just seems to be a false promise if offending parent can simply file an order and rip her back out of the home.

  2. […] This case seems to have limited precedential value. Parents in open cases can always file a new reunification motion under the new standard, which will usually make it harder to get reunification if your child has been out of your custody with an uncharged parent for a year. This mother just got caught in the lurch, with an appeal pending between the two standards. Everyone else is on notice that the law has changed. Or hasn’t changed, depending on who you ask. […]

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