Florida’s Third DCA is now live broadcasting oral arguments. I tried to make a recording of yesterday’s, but failed. Hopefully next time a dependency/child related case comes up I’ll be more prepared.
Here were the issues in Z.S.M. v. DCF:
- Was there competent and substantial evidence to support a TPR where the mother had mental health problems and unresolved substance abuse and had not complied with services?
- Can a foster parent join the TPR petition and thereby become a party with appellate rights?
On the sufficiency of the evidence question, all three judges appeared likely to PCA. Judge Schwartz was the usual antagonist of the Department, asking them to point to the evidence of harm to the child in the record, as the child had been removed from the mother at a few weeks old. When the Department failed to give a sufficient answer, Judge Schwartz responded, “Three generations of idiots is just enough, right?” The Department agreed. Had the attorney recognized the reference, she might have though twice. It’s obviously a paraphrase of Justice Holmes’ closing line from Buck v. Bell, the 1927 Supreme Court case that said that forced sterilization of “incompetents” was constitutional. DCF is a social eugenics program? This is not the first time someone has levied that charge, though it usually doesn’t come from the bench.
Regarding the intervention of foster parents, the panel seemed inclined to allow it, probably also without opinion. Judges Emas and Fernandez pointed to the statute that says that “any person” can file a TPR petition and the rule that says the petitioner is a party (it would be a weird system where the petitioner was somehow not a party). Judge Schwartz had some constitutional reservations about the whole thing, as the foster parents would fall into the category of a person who “is informed” of allegations and “believes them to be true.” For him this seemed to encroach too far into parental rights, and he’d raise a standing bar to keep these cases from even being brought. Forget if you can prove a child was abused–if you didn’t see it with your own eyes, you wouldn’t be able to do anything under Judge Schwartz’s interpretation. Judges Emas and Fernandez did not seem inclined to join this position.
Prediction: PCA on both issues.