This one is stupid and should never have happened. A father was 51 minutes late to his TPR trial because he had car problems. He showed up right after the judge entered a default against him. He moved to set the default aside, and it was denied. He appealed and apparently nobody conceded error because it took a written opinion from the Fourth DCA to fix it.
I note that the appellate case number is a 2019 case. It is April 2020 for one more day. They could have conducted a TPR trial against him every week since then. The only time you hold on to a default that tightly is when you know you’re going to lose. What a colossal waste of time.
The Third District Court of Appeal in Florida issued a surprising opinion last week in D.M. v. Department of Children & Families. The case involved a child born in 2007. The Mother signed a surrender of her rights in 2010, but no TPR was ever entered. The child was eventually placed back with her. Ten years later, she refused to pick the child up after a Baker Act, and he was sheltered once again.
A year later, DCF filed a petition to terminate both parents’ rights. It alleged the grounds of abandonment, failure to comply with the case plan, irrespective of services, 12-of-22 months, and three-or-more removals. On the second day of trial, the child’s mother executed another surrender. The judge conducted a colloquy and accepted the surrender, over the child’s objection that it was not in the child’s best interest to terminate her rights. The trial continued and after hearing evidence the judge terminated both parents’ rights.
Let’s acknowledge for a second the value of having an attorney for the child here. Without the child being represented, the judge would not have heard the full weight of the child’s position that the mother’s rights not be terminated. The Department, guardian ad litem, and the mother were all in agreement. The person who had to live with the decision the longest was not, and their attorney translated that position into legal action. Sure, in the end the judge granted the TPR, but after a much more deliberative review than would have occurred if the child had not had counsel. The appeal is not about that, though. The court acknowledged in a footnote that the child had an interest in family integrity and his due process rights were protected through his attorney and the ample process involved.
The opinion is actually about the mother’s surrender. The Third District held that the final judgment on the mother’s termination must make “findings of fact specifying the act or acts causing the termination of parental rights.” The language is right from the Juvenile Rules on consents in TPR cases. Those findings must go beyond the parent’s consent and justify the underlying facts that support the termination of their parental rights. The court likened it to a criminal plea, which must be made on some factual basis of an actual crime. It remanded back to the trial court to make those findings, likely by stipulation from the parties if everyone agrees (but it appears the child does not).
The opinion is explicitly based on a Fifth District opinion from 2003. See C.B. v. B.C., 851 So.2d. 847 (2003). In that case, the mother filed a private TPR petition against the imprisoned father, who was alleged to have committed sexual abuse. To avoid the egregious details of the petition in the final judgment, the father executed a surrender. The trial judge ordered the mother to draft a final judgment based solely on the father’s surrender. The Fifth District held that the Juvenile Rules require, when a parent consents to a TPR, that the underlying facts be incorporated.
The holding doesn’t sound crazy, until you think through the implications. Many parents surrender early in a case, long before DCF files a petition to terminate their rights. In Northeast Florida, for example, a certain judge has been known to talk parents into surrendering at the shelter hearing. D.M. seems to hold that you cannot do that. If there is no other ground for a TPR, then there can be no independent factual basis to support a surrender. There won’t be an independent basis in most cases until a parent has at least attempted a case plan, adding months to a case that nobody benefits from.
I think the Third’s opinion gets the law wrong because the Fifth got it wrong. Under Chapter 39 and the Juvenile Rules, there are two distinct forms of legal consent at play here: (1) a parent’s surrender of the child to the Department and consent for subsequent adoption, and (2) a parent’s consent to a petition to terminate their parental rights. They are not the same thing.
A surrender to the Department is an independent ground for a TPR. If the surrender is executed prior to the filing of a TPR, then the only ground in the petition is likely, but not necessarily, the surrender itself. The parent’s surrender waives all future notice and therefore the TPR goes through on the basis of the surrender alone. In these scenarios, the consent is given to DCF for the adoption, but the parent is never even noticed for an arraignment at which to take a plea.
The second type of consent is the legal plea that occurs after the filing of a petition against a parent. This consent must be a response to a legally valid petition. In dependency law, the options are deny, consent, or admit. Just as you cannot plea to a crime with no factual basis, you cannot consent to a TPR petition that is not legally sufficient. If you want to get TPR’d that badly, you can surrender. They are not the same thing. The court’s ruling that surrender is equivalent to consent and must be accompanied by other grounds effectively nullifies the provision that surrenders are independent grounds for TPR.
And that’s where the Fifth District got it wrong back in 2003. The father in C.B. did notconsent to the petition. In fact, he surrendered to create a new ground for TPR because he specifically disagreed with the allegations in the original petition. The criminal analogy is not that he would be consenting to something without a factual basis — instead, he was accused of one crime, came to court, punched the bailiff, and then asked for his first charge to be dismissed because he’s going to jail anyway.
In more legal terms, the father engaged in a form of unilateral stipulation. It’s a very common trial tactic: you stipulate to a witness’s testimony or an expert credentials because you believe the effect of their testimony will hurt far worse than the substance of their testimony. But this was unilateral stipulation to the extreme: a petitioner in a TPR case only needs to prove one ground, but a petitioner still has the right to prove their whole case.
In a criminal case you cannot plead to a misdemeanor to preclude the state from going forward with felony charges. In a civil case you cannot admit negligence to preclude a plaintiff from going forward with their intentional tort claims. The legal claims, if proven, have different legal effects. And the same is true in dependency: an involuntary termination can be automatic grounds for a future case involving a different child. A voluntary surrender cannot.
So, the trial court in C.B. erred by dismissing the mother’s other grounds once the father strategically created a new one. The appellate court in C.B. then erred by looking to the consent language for a remedy (“let’s just make the final judgment list all the bad stuff”), when the appropriate resolution would be a ruling on whether a court can halt a trial once one ground is proven (“let’s still give her a chance to prove the bad stuff”). Because the father in C.B. didn’t really consent, there could be no stipulated facts for the final judgment language. They were going to trial regardless.
Alternatively, the Fifth District could have considered whether a parent can surrender a child not to the Department and not for subsequent adoption. In C.B., the mother argued that she was standing “in the shoes” of DCF for the purposes of accepting the surrender, but her argument was backwards: the father couldn’t surrender because she’s not DCF whether she wanted to accept it or not. Maybe we don’t want parents to just be able to surrender their rights and walk away, child support being a right of the child and all. It is not surprising that C.B. has only been cited one other time in 17 years, and not even for the legal principles at play here.
So C.B. was wrong on the law, and D.M. was wrong for following it, but I’m not very upset about the result. I have never been a fan of preemptive surrenders by parents. The father in C.B. appears to have been gaming to prevent public record of a heinous act. (He had already managed to get a no contest plea in criminal court.) But preemptive surrenders most frequently happen on the worst day of a parent’s life. They are often a result of the Department inviting a parent to trade the surrender of one child in exchange for leniency on a case plan for another (or some future) child. These decisions are fraught with problems, and too frequently result in a child just getting orphaned into foster care with no real plan.
Admittedly, the Juvenile Rules do not make any of these distinctions very clear and in fact they seem to conflate pre-filing surrender and a plea of consent to a petition. The rules never align with the statutory language that the parent’s consent during surrender is to the child’s placement with DCF for adoption. That may be worth someone looking at more closely.
It’s worth noting that even on a surrender the court still has to find that the termination is in the child’s manifest best interests (a lengthy analysis of the child’s circumstances) and the least restrictive means to protect the child from harm (a legal analysis to determine whether the parents’ rights were properly protected). It sounds like the court did that here. The law allows preemptive surrenders whether I like them or not. Maybe that should change.
A lot of people have been asking, hypothesizing, and, frankly, guessing about what effect a global pandemic and quarantine coupled with unprecedented levels of governmental and community response will have on child welfare measures. Anyone who claims certainty right now is selling something. We really don’t know.
We do have a few new data points, however. Florida DCF released its dashboard numbers last week, and they show a reduction in intakes. It’s not nearly as large as I expected. You can get different numbers depending on how you count, so there’s plenty of room for salesmanship, but I would say anywhere from 10-17% down is defensible. A lot of other measures were affected way more. Many were not affected at all.
I created a dashboard to look at all of this. I made it for COVID-19 but you can also review other events in Florida child welfare history. Below are the things I noticed in the data.
Intakes were down
I’m going to use investigation intakes as the measure for this discussion, mostly because DCF has a dashboard on those. Intakes, as far as I understand DCF’s documentation, are completed calls to the hotline that are either accepted for investigation or screened out. I don’t think it includes abandoned calls.
First, let’s look at the actual numbers. Did the floor fall out of intakes in March? Not at all. They were in the middle of the decade’s high and low. Back in January 2010, we got 8,000 fewer calls per month and removed a lot more kids.
It’s hard to read charts with all those ups and downs. To smooth things out, let’s take the year-over-year change in March of each year instead. What you see below is that intakes were down about 10% from March 2019 to March 2020. But, they were also down 8% from March 2018 to March 2019 after being up for five prior years. You could call that a 2-point or a 25% decrease from 8 to 10, but it doesn’t really look like that much to me. It could be part of an ongoing trend that started when Governor DeSantis took office. Again, the number was somewhere in the middle of the decade’s high and low.
Maybe March is just weird. Maybe the previous administration did a huge child abuse awareness campaign in March that increased calls. The next chart looks at all the months at once. It’s a little spaghetti-esque, but you can see the general trends: January and February were pretty normal, but March is down over the last two years. It’s not lower than the summer months, but it’s definitely been dropping in the last two years.
We need a way to compare months to each other over different years. We can do that using seasonal decomposition. I’ve used this before and always get a lot of questions about it. So, as an example, if you are in the business of selling sunscreen, your sales will go up and down during the year because of the weather (these are called “seasonal factors”). Those seasonal factors are pretty stable over time — summer sales will be more than winter sales every single year. But your sales also change over time due to other forces like the economy or how people feel about tanning (“trends”). Those effects are not the same year to year. To really determine if you had a good month in sales compared to the past, you would want to remove the seasonal effects and the trends so that you’re comparing what is left over (sometimes called the “noise” or “error” value). So let’s do that for abuse calls.
Below are the seasonal factors for statewide intakes. These are the predictable ups and downs you see year to year. The colors represent the seasons to make it prettier. You can see that abuse investigation intakes go up about 12% in April, then down about 10-11% in the summer. That corresponds to those very regular ups and down in the first chart above. There are still around 20,000 abuse calls per month in the Summer — it’s just 22% fewer than in the Spring. Just like in the sunscreen example, we will adjust the numbers to account for these normal ups and downs that are caused by the seasons.
Next we have to filter out the bigger trends by taking a moving average. (I’m using a +/- 6 month median window here.) You can see that abuse calls have remained mostly flat. There was a slight rise at the beginning of 2016 and then again in June 2017. Since January 2019 (a new administration), we’ve seen a slightly decrease. The ends of trend lines are always bumpy, but especially when you have a giant worldwide pandemic sitting right off the edge. As we get more data, this line will get smoother.
Now for the magic: if you take the original DCF values and remove both the seasonal effects and the trend line, you get a flat line with easily comparable ups and downs. I turned it into a bar chart to make it easier to read below. I also added two horizontal lines to mark four standard deviations from the mean. (Thanks to anomaly.io for sharing their work.) Anything higher or lower than that is probably an anomaly.
So, what does the graph show? Intakes were probably about 16% below the decade’s seasonal average in March. And, that was very, very rare.
There is one other similar dip in intakes. It occured in September 2017 during Hurricane Irma when intakes were 15% lower than expected. There are two smaller dips in June 2018 and June 2019 that I have no explanation for. The highest spike in the other direction was March 2011 (+13%) right after the Barahona case hit the news.
What does all this tell us? That intake numbers dropped in March: 10% over last year or 16% over a typical March in the last decade. Those are hurricane level numbers.
What doesn’t it tell us? Whether those lost calls would have resulted in removals or whether they were low-risk calls that easily got pushed aside when other things became more pressing. There were still 25,000 intakes done. Investigations take about 60 days, so we won’t know more until later. Even then the picture will be murky because we won’t know what wasn’t called in or how to account for a workforce that can’t do in-home inspections except in urgent cases.
What else don’t we know? We don’t know what April will look like. I’ve heard people predict that cases will go up, which makes some intuitive sense. But the data does not show that actually happens after hurricanes, and we don’t know whether this downturn will be a passing moment or a new normal that changes the numbers forever.
What else changed?
Intakes have been getting all the press, but here are some other statewide child welfare measures that are also worth looking at.
Verifications jumped up 12%. You don’t even need math — you can see this in the DCF data. Verifications had been higher than expected for a couple of months, but this may by the March 2020 numbers making the rest of 2020 look stronger than is real. For comparison, verifications went down significantly (-12%) the month of Hurricane Irma. There was no rebound, which is slight evidence that maybe they weren’t that bad.
Removals were pretty normal. They were down, but not by much more than a ton of other months that didn’t have a pandemic in them. For comparison, removals were down 20% during Hurricane Irma and never really bounced back after that. Again, that might be evidence that those were lower-risk removals. The only extraordinary spike in removals was in March 2011 after the Barahona case. I wonder if any of those were removals from adoptive parents?
Exits from care were low but normal. Exits were down 11%. For Hurricane Irma, exits went down 20% and rebounded over 4 months.
Reunifications were very normal. It’s interesting that there were lots of times in the last decade when reunifications dipped low, but this wasn’t one of them. I can’t explain that spike in 2010.
Guardianships were down 34%. You can see this right in the data, too. During Hurricane Irma, guardianships went down 12%, so this really is a notable decline. That other giant dip is in February 2015, after Phoebe Jonchuck was found dead.
Adoptions were normal, maybe… I really like this one, because it shows how tricky this stuff is. First, adoptions are very seasonal — tons get done in June and November of each year. Also, when hurricanes and other events have suppressed adoptions in the past, they have shown large spikes a few months later to make up for the backlog.
We expect February to be 9.4% down from the year average. So it is unusual to see in February 2020 there was a giant spike (+64%) in adoptions before the event we expect to dampen the numbers. The increase was driven largely by the Central Region cranking out a lot of adoptions in February. If they saw a lockdown coming and rushed to finish pending adoptions, then that is an effect. If the spike happened because a few large sibling groups get adopted, then that is a coronavirus coincidence. Notice that March 2020 is registering in the numbers as normal, but looks very low. I expect these numbers to level out when we get a few more months of data to determine the wider trends.
Everything else? The tableau dashboard lets you filter by region, CBC, circuit, or county. In addition to the measures above, it also lets you look at major maltreatment categories like substance abuse, domestic violence, physical abuse, sexual abuse, and inadequate supervision. I’ll update it next month when the new numbers come out.
ADMINISTRATIVE ORDER 20-03 CANCELS ALL NON-EMERGENCY PROCEEDINGS
EXCEPT MISSION-CRITICAL COURT MATTERS FOR MARCH 17-27, 2020
The Honorable Bertila Soto, Chief Judge of the Miami-Dade Courts, today issued Administrative Order 20-03, cancelling all non-emergency court proceedings, except mission-critical court matters, for the period from Tuesday, March 17th, through Friday, March 27th.
Also pursuant to Administrative Order 20-03, all time limits and deadlines set by judicial order and/or authorized by rule and statute applicable to: civil (circuit and county), family, domestic violence, probate, small claims, and appellate proceedings are suspended from close of business Friday, March 13, through close of business on Monday, March 30.
The time period may be extended based on guidance from health and government authorities and in coordination with the Florida Supreme Court. Future updates will be provided as needed.
All court employees who have the capability to work remotely from home will do so in coordination with their supervisors.
Pursuant to Administrative Orders 20-02 and 20-02 A1, issued Monday, March 16th, all court facilities remain closed to the public except for mission-critical court matters during the time period of March 17-27, 2020.
Mission-critical court matters include:
First appearances (bond hearings)
Arraignment hearings for in-custody defendants, but defendants do not need to appear in court. If there is a written plea, the case will be set for trial. If there is no written plea, the arraignment hearing will be reset.
Access to Clerk’s Office intake windows for filing of emergency petitions for temporary injunctions (domestic violence, and dating, stalking, repeat and sexual violence, and risk protection orders) Note: All hearings on final injunctions pursuant to F.S. 741, 784 and 790 will be canceled and re-scheduled to a future date. All temporary injunctions will be extended and will remain in full force and effect until the next hearing date.
Emergency hearings set by presiding Judge
Trials that were underway before the Florida Supreme Court issued Administrative Order 20-13 on March 13th will continue.
All non-emergency court proceedings, including but not limited to: special set hearings, trials, and all calendars, including but not limited to, motions, pretrial motions, foreclosures, uncontested divorces and case management conferences, will be cancelled and re-scheduled to a future date.
Back in August, an ad hoc committee of the juvenile justice board in Hillsborough issued a lengthy report on the state of placement instability in their circuit. The report diagnosed the phenomenon of children refusing placement as a major source of that instability.
The committee concluded that “children under the care and custody of Florida’s child welfare system should not have the ability to refuse temporary placements that have been determined to be in their best interest by the parties charged with their care.” The committee recommended a new law to expand the “children in need of services” statute to permit foster children to be placed into staff secure facilities (i.e., 24-hour supervision) if they refused placement, were chronic runners, didn’t go to school, or didn’t comply with the treatment recommended. They could then be placed in a physically secure (i.e., lock-down) facility if they didn’t comply with the staff secure program.
The proposal initially struck me as well intended but misinformed. Foster kids can already be placed in staff secure facilities by DCF without a court order. Any group home can be converted to staff secure by upping the staffing ratio and making sure someone is awake at all times in the home. You don’t need a new legal regime for that — you need money.
Second, foster kids can be placed in physically secure programs through a DJJ commitment, a SIPP placement, a Marchman Act placement, or a Baker Act. All of those placements are extremely expensive and have a limited number of beds. The gatekeepers for those programs have to do constant triage to limit use of the programs to the neediest children. If you want to increase access to secure settings with intensive treatment, it will take money to expand the placement array. Once you have a sufficient array, you can start working with the less extreme cases described by the committee.
The report correctly notes that Florida’s foster care placement system is reactionary. It recommends data collection and analysis to create predictive models for which children will have future placement challenges, because “indisputable data on risk factors is not available and would be beneficial to decision making.” If you know me or have read anything on this blog, you know that I couldn’t pass that challenge up.
It turns out that Hillsborough has been logging when children refuse placement in FSFN since 2017. (This should be required for all CBCs.) There were 49 kids in the most recent version of the public database that had ever refused placement. Me and my team of intrepid students reviewed the complete history of all 49 kids, then the history of their most common placements, and then the whole placement array in Hillsborough. What we learned filled over 150 pages. I have broken it into a main report and an addendum that gives a narrative of the placement history of all 49 children. (The addendum will come out soon — it’s over 100 pages.) This post is a summary.
What we found was consistent with existing research on placement instability in foster care. The refusal children were disproportionately non-white teens with significant time in group home settings; but there were children as young as seven who refused. For the most part they were well-known to the system: the median number of placements prior to refusal was 21 (31 in total), and nearly 70% of their placements prior to refusal (75% in total) ended because the provider requested the child be removed. Being ejected by providers after placement was the most pronounced feature of children who refused placement. Most of the children refused only one or two times; and many spent more time at the agency’s office because no appropriate placement could be found than they did because they refused.
What surprised us was that children were slightly more stable after refusing placement than they were before, at least temporarily. The refusal episodes seemed to elicit an agency response that children’s previous placement instability did not. Usually the added stability was from the agency obtaining therapeutic placements, but sometimes stability came from negative causes, as some kids ran away for extended periods of time or were arrested. In some cases, it appeared that the children refused with a specific placement in mind they wanted to be in.
Speaking of arrest, the committee was mostly composed of DJJ professionals, so it makes sense that they were focused heavily on that population. However, it turned out that the children who refused placements were not any more seriously involved in the delinquency system than other unstable kids in foster care. They did, however, appear to have higher levels of mental health needs.
And that’s where Hillsborough is particularly failing. Our review of the system as a whole found a placement array that routinely played hot potato with high-needs children, bouncing them around in circles often back to placement they were just kicked out of. When I first read the committee’s report, my thought was “you’re describing an STGC — just open one.” Hillsborough has no Specialized Therapeutic Group Care programs, and instead sends children across the state to therapeutic programs. Locally it relies on group homes that rarely keep children more than a month on average and enhanced rate foster homes that keep kids a median of 4 days per placement. The problem isn’t the law; the problem is the array.
Our review disagrees with the committee’s report in another way: instability was in fact highly predictable and often began long before a child refused placement. Existing research shows that a child with 4+ placements has a 70% chance of additional instability, and a child with 6+ daily maladaptive behaviors has a 25% increase in risk of disruption per additional behavior. By reviewing the placement histories we found 131 highly unstable children in Hillsborough since 2017, many of whom had more than 50 placements. Only 38 of them had ever refused a placement, though. Refusal and non-compliance are not appropriate triggers for intervention — instability is.
Where we agree with the committee is this: Hillsborough needs to regain control over its array and create a clear escalation process for children who are serially ejected from placements. This will take a significant effort to change the culture. The burden should not be on the children to accept a 22nd placement failure or risk civil commitment for disobedience. The burden should be on the providers to work with children to never get to that level of instability.
Our full report is linked here. The addendum containing the narratives for all 49 children will be released soon. I hope this is helpful to people on the ground in Hillsborough.
I sat on this post until after National Adoption Month because it seemed like the polite thing to do and because I didn’t have time to finish it until now. It’s about adoption. Not whether adoption is good or bad. My feelings about adoption are whatever my client’s feelings are — and it should be no surprise that some kids want to be adopted and others do not. Instead, this post is about adoption as a policy, a specific tool of the system to accomplish certain goals. It is specifically about how much that tool costs.
The Guardian ad Litem Program started as a scrappy community of advocates and gadflies who sought to bring attention and change to the dependency system. It is now a state agency that’s been appropriated over $600 million in the last 15 years. There has never been a comprehensive study to determine whether the Program accomplishes its goal of improving the lives of foster children. I looked at the Program’s performance numbers, first out of irritation, then curiosity, and ultimately the realization that we need more fact-based information about the “Second DCF” to answer the core questions surrounding its continued funding and structure. The questions explored here are whether the GAL Program is ethical, effective, and good for children? The answer to all three questions, it turns out, is the same.