And the first child welfare bills this session are…

If it feels like the legislative session just ended, that’s because it did. Florida’s constitution allows legislators to choose the session start date in even numbered years instead of the normal first Tuesday after the first whatever this is a confusing way to do dates. Why would they move it? Spring Break, campaign season, and possibly bloodlust for turkeys.

The hurricanes delayed the calendars a bit, so we are just seeing the first bills moving through committees. And they are:

SB 96 – Human Trafficking Education in Schools. Revising the required health education in public schools to include information regarding the dangers and signs of human trafficking; authorizing a student to opt out of a specified portion of the health education under certain circumstances, etc.

SB 108 – Florida Kidcare Program.  Establishing the Kidcare Operational Efficiency and Health Care Improvement Workgroup as a task force administratively housed in the Department of Health to maximize the return on investment and enhance the operational efficiencies of the Florida Kidcare program, etc.

SB 222 – Guardian ad Litem Direct-support Organization.  Abrogating the future repeal of provisions related to the guardian ad litem direct-support organization, etc.

That human trafficking one probably needs a tweak: letting parents opt their kids out of the HT curriculum seems unwise, since some parents traffic their kids.

Some other child welfare-related bills I’m watching this session:

  • The 240 or so bills that eliminate Florida’s law permitting minors to marry with parental consent. Because, you know, some parents traffic their kids.
  • A bill that would permit pro bono attorneys for kids in dependency cases to obtain due process costs from JAC. This is a no-brainer for me. Pro bono attorneys volunteer their services, but they should not also have to personally fund all of the litigation costs related to the case when there is always money leftover in the special needs appointment pot.
  • Bills requiring a study on the use of direct files to charge minors as adults. Given the disparities we already know exist across the state, we really need to look into this.

I’m sure there will be lots more to come.

Florida case law update: bio fathers granted standing to assert rights

Two Florida district courts issued favorable rulings for biological fathers this month. Both fathers were granted standing and a chance to assert their claim over the objection of the presumptive legal fathers.

The Second District permitted a biological father to challenge the paternity of a man on the birth certificate. The court approved of the following:

  1. bringing paternity actions in dependency cases (the rules permit it);
  2. standing of bio fathers to challenge paternity based on fraud, duress, or material mistake of fact (in this case, the mother’s fraud and the legal father’s mistake of fact);
  3. not putting any weight on a court’s identification of the parents at a shelter hearing (it’s not a paternity hearing); and
  4. recognizing prospective parents as participants when in the best interest of the children  (the statute requires it).

In re Y.R-P. (Fla. 2nd DCA 2017).

There’s nothing legally new here, but it is a nice roadmap for handling those convoluted cases where two (unmarried) men are vying for the same child.

The Fourth District addressed the issue of standing when the legal father is married to the mother in Perkins v. Simmonds (Fla. 4th DCA 2017). The Fourth rejected an absolute bar to challenging the presumption of paternity when a child is born into an intact marriage, and instead re-affirmed its prior holdings that the presumption must give way when it “outrage[s] common sense and logic.” (Not a particularly helpful formulation, but better than an inflexible bar.) In this case, the child was given the bio father’s last name, was financially supported by the bio father, and had a strong relationship with the bio father. That was more than enough to give the bio father standing to assert paternity.

These seem like good outcomes. Maybe one day we can be done with the legal concept of legitimacy and all the problems it invites.

See also:

  • Theresa Glennon, Somebody’s Child: Evaluating the Erosion of the Marital Presumption of Paternity, 102 W. Va. L. Rev. 547 (2000) (via heinonline.org)
  • David D. Meyer, Parenthood in A Time of Transition: Tensions Between Legal, Biological, and Social Conceptions of Parenthood, 54 Am. J. Comp. L. 125 (2006) (via jstor.org)
  • Sarah McGinnis, You Are Not the Father: How State Paternity Laws Protect (and Fail to Protect) the Best Interests of Children, 16 Am. U.J. Gender Soc. Pol’y & L. 311, 312 (2007) (via digitalcommons.wcl.american.edu)
  • Melanie B. Jacobs, My Two Dads: Disaggregating Biological and Social Paternity, 38 Ariz. St. L.J. 809, 810 (2006) (via digitalcommons.law.msu.edu)
  • Melanie B. Jacobs, Parental Parity: Intentional Parenthood’s Promise, 64 Buff. L. Rev. 465 (2016) (via digitalcommons.law.msu.edu)
  • Melissa Murray, What’s So New About the New Illegitimacy?, 20 Am. U.J. Gender Soc. Pol’y & L. 387 (2012) (via ssrn.com)
  • Leslie Joan Harris, Involving Nonresident Fathers in Dependency Cases: New Efforts, New Problems, New Solutions, 9 J.L. & Fam. Stud. 281 (2007) (via heinonline.org)

 

The Florida foster care stats you’ve been waiting for: 24,152 kids in out-of-home care & which CBC is the biggest?

It’s been awhile since I posted a pile of graphs, so here we go. Out-of-home care numbers are still rising. That’s probably not a good thing.

Oct Supervision Size
The number of children in out-of-home care continues to rise. The number of children in their homes under DCF supervision is a little down. This suggests we’re removing kids faster than we can obtain permanency for them.

 

All is not equal in the types of placements. Relatives are still shouldering most of the burden for foster care.

Placement Type Breakdown Oct 2017
Relative placements continue to be the largest single placement type for kids, growing faster than licensed family care. Facility placements have been flat for some time. Non-relative placements have seen an over 60% increase since funding was authorized for these placements in 2014.

 

Finally, which CBC is really the biggest? It has always depended on how you measure.

regino by size
The relative ranking of each region has been fairly consistent, even with increases and decreases in the statewide number of children in care. Most regions are rebounding to their pre-2007 days, with the exception of the Southern Region which is still comparatively low.

 

cbc by size
The rankings of CBCs by size has also been fairly consistent over time. Our Kids and Eckerd Hillsborough have consistently supervised the largest number of children. Again, some CBCs have rebounded, others haven’t. (Note these numbers don’t show where new CBCs took over for closed ones.)

 

Sheet 13
The rankings are very different when viewed as children in care per 1,000 children in the community. For example, Our Kids has consistently ranked as one of the smallest CBCs in proportion to its geographic area.

 

The numbers here are from DCF’s Child Welfare Trend Reports. DCF keeps their own visualizations at the Child Welfare Dashboard. If you see anything wrong, interesting, or that-I-missed, let me know.  Have a great weekend!

Attorney: “I don’t have to file a motion for every little thing.” Appellate Court: “Oh really?”

The Third District Court of Appeal reversed an order granting supervised visits yesterday because the trial court entered the order without proper notice to the Department. The opinion is surprisingly long for a simple “no notice, reversed” ruling, and the lone footnote may explain why:

1 In light of the statutory obligations and clear case law on the issue of modification of visitation, it was inappropriate of counsel to tell the judge that “I don’t have to file a motion for every little thing,” in response to DCF’s objection that it had not been properly noticed.

The attorney is correct. You don’t have to file a motion and give notice if your opponent doesn’t object.

Two cases out of Florida show the bias against fathers in child welfare

Let’s talk about fathers for a second. One critique of child welfare law is that it puts a significant burden on mothers while essentially ignoring fathers until they become inconvenient. Two cases out of Florida this month highlight this phenomenon.

In the first case, twin children were sheltered from their mother due to neglect. The father had been out-of-state in prison on drug charges for the twins’ whole life. He met the children only once when the mother brought them to see him while he was on a furlough pass. Once the case was commenced, he appeared at every hearing by phone and called the children during his furloughs — but not while in prison, he said, because he could only make collect calls. After the mother did not comply with her case plan, the Department filed for TPR on both parents. While the trial was pending, the mother died in a car accident. The father then learned that he would be released from prison five days after the scheduled TPR trial. He had a place to live and a job lined up. There children were not in a pre-adoptive home. The Court terminated his rights anyway. The First DCA reversed the termination.

In the second case, a child was sheltered at birth after testing positive for cocaine. The mother was married, but estranged from her husband. The biological father was on the birth certificate. Under the law, this scenario makes the husband the legal father. The family was advised how to fix the paternity issues and the biological father was sent away until he addressed his legal status. He filed a notice with the Putative Father Registry, but took no other action. A year passed, the mother did not comply with her case plan, and the biological father then filed legal motions to establish his rights to the child after TPR was already filed. The Fourth DCA held that the year and a half delay was too long — he had no parental rights because he was not fast enough in legally asserting them.

The problem here is twofold: first that the system was perfectly happy to ignore the fathers until they asserted their rights against a TPR; and second that the fathers appeared content (or at least not incentivized) to let the mothers do all the hard work to get the kids back until they failed. The trial judge in the First DCA case terminated a father’s rights despite no clear plan for permanency for the child — the children would have to build a relationship with either the father or a pre-adoptive family — and despite no apparent effort to actually nurture that relationship for over a year. (The mother, not the State, took the child to see the father on his furlough in Mississippi before the case came in.) The Fourth DCA, in its written opinion, unfavorably compared its bio father’s effort to those shown by the foster parents’ — a poor comparison given that the whole child welfare system is designed to recruit, train, and support foster parents (well, comparatively speaking), whereas the father was dismissed from the case and left to find his way back on his own. The father may have reasonably determined that the best course was to allow the mother to reunify and then reconcile with her and the kids, especially since he himself was not accused of any wrongdoing.

Neither of these cases had to end this way. We can resolve messy paternity issues early with little effort — especially when the legal father is completely absent. We can make concerted efforts to build relationships between fathers and their children, even if they’re out-of-state or in prison. What we shouldn’t do is ignore half of a child’s family.

Here are some resources on doing that:

Engaging Fathers and Paternal Family Members (childwelfare.gov)

Barriers to Father Involvement in the Child Welfare System (fatherhood.gov)

Exploring the bias against fathers in the Child Welfare System (ucdavis.edu)

Let’s talk about the IL Programs and justice

The Third DCA ruled against our clinic yesterday, holding that access to federal Education and Training Vouchers (ETV) could be restricted by the State through the creation of programs with additional eligibility rules. While I disagree with the reasoning of the Court, I’m writing here about the original source of injustice in this case.

Our clinic was retained by an amazing young woman who needed help during her Independent Living years. From the opinion:

Cormier was born on November 11, 1995. She lived in the Bahamas with her mother until she was fourteen years old and then moved to Florida to live with her father. On October 2, 2013, DCF removed Cormier from her father’s care due to alleged physical abuse and domestic violence, and thereafter, she entered the dependency court system. Cormier was sheltered briefly and then placed into the temporary custody of a non-relative caregiver, where she remained for approximately six weeks before turning eighteen. As the hearing on the petition for dependency was scheduled for a date after Cormier turned eighteen, the hearing was never conducted and the dependency case was closed.

Independent Living benefits provide case management support and financial resources to kids aging out of the foster care system to help them be successful, and to help them avoid homelessness, criminal justice involvement, and the host of other bad outcomes that statistics show foster kids endure.  The IL Program has various sub-programs with differing eligibility criteria. The most liberal program is the Extended Foster Care Program, which only requires a young person to age out of care in a licensed placement and participate in school, work, or similar activities. The Post-secondary Education Support Services (PESS) program is the most restrictive — it requires a young person to be adjudicated dependent, age out of licensed foster care, have been in foster care for at least 6 months, and maintain good academic standing in college or vocational school.

Knowing these criteria, certain facts about our client’s case stand out: Her placement in a unlicensed placement made her ineligible for any IL Program even though that decision is largely not up to the child. Statewide, the Department is relying more heavily on unlicensed non-relative placements largely due to the lack of licensed foster placements. In November 2013 when our client aged out, only about 8.6% of children under DCF supervision were placed with non-relatives. In March 2017, that had risen to 11.93% — that’s 8,623 kids who will not be eligible for IL support if they age out.

The fact that her case closed without an adjudication means she would not have been eligible for PESS even if she were in a licensed placement for 6 months. Cases shouldn’t take 6 months to adjudicate, you say? They can if they go on appeal. And the Florida Supreme Court ruled in O.I.C.L. that the appeal of a child who ages out of care is moot. It would not have been moot to this young woman, who is striving to be successful with all of the history and none of the support given to a narrow group of foster kids. Nine-thousand kids in non-relative placements and an unknowable number of kids whose cases languish in the courts will be in her shoes soon.

George Sheldon in talks to head Our Kids

The Chicago Tribune is reporting that George Sheldon is in talks with Our Kids to become their new CEO. Sheldon is the current Director of the Illinois Department of Children and Family Services, and has a long career in politics and child welfare (wikipedia).

According to the Tribune, Our Kids’ board chair Keith Ward supports Sheldon. “He wants to come home. … We’re very fortunate,” Ward told the board, the Tribune reports. “He’s just No. 1 on anybody’s list.” But back in Illinois, Sheldon is facing ethics probes due to favoritism in contracting and hiring, and public controversy over the death of a child one day after investigators declared her safe. The Miami Herald got Sheldon’s side of the story.

Sheldon was Secretary of Florida DCF from 2008 to 2011 when Governor Scott took office. During his tenure Sheldon continued the reduction in out-of-home care started under Secretary Butterworth. To my knowledge, no former DCF Secretary has ever become CEO at a CBC.

secretaries.png

Florida DCF contracts are worth billions – where does the money go?

I was wondering who holds the largest DCF contracts in Florida. The answer was right on the Florida Department of Financial Services website (thank you, Mr. Atwater), which lists public contracts with an ending date of February 29, 2012 or later.

I created a tableau where you can explore the DCF vendors by name, and see the list of contracts with details on their purpose, dates, and amounts. Click on the contracts to see their entry in the Florida Accountability Tracking System, including the contract documents, deliverables, payments, and audits.

The answer is that (depending on how you count) 12 organizations have received about half of DCF’s business since DFS started keeping track online.  Of that dozen, six organizations were CBCs, four were behavioral health networks, and the final two work with sexually violent offenders and psychiatric patients. Smaller CBCs and BHNs make up the next 25%, with the final quarter split among hundreds of small organizations, all the way down to air conditioner repair jobs and copying fees.

boxes

The total contract amounts need to be understood with a dose of context. Our Kids, for example, is the vendor for $1 billion over 10 years (5 years original, with 5 years renewed). The payment amounts get adjusted year to year based on statutory and contractual terms. And the contract amount is not the total cost of the child welfare system when you also factor in state, county, municipal, and charitable funding for all of the people and organizations who make their living adjacent to the system (including, for now at least, me).

Still, a billion dollars is a huge contract and the question of how it is being managed in Miami is particularly relevant today when Our Kids’ leadership team has resigned but not left office and DCF is holding stakeholder interviews to determine how people fighting to drink from that spigot think things are going.

DCF investigating Miami’s child welfare dysfunction

The Department of Children and Families is convening a Peer Review Team to investigate the problems in Miami. I don’t know if it’s a public meeting, but it should be.  See email below for details.


From: Mike Carroll <Mike_Carroll@info.dcf.state.fl.us>
Date: 04/25/2017 10:30 AM (GMT-05:00)
To: “Ferradaz, Gilda” <Gilda.Ferradaz@myflfamilies.com>
Subject: Miami Peer Review Launch Meeting (5/1/17: Miami, Florida)

The Department of Children and Families will convene a peer review team to conduct an assessment of current operations and to develop recommendations to improve the relationships of stakeholders within the Miami-Dade child welfare system of care, strengthen behavioral health services for teens, and to clarify information-sharing. The commencement of the Miami Peer Review Team will take place on Monday, May 1, 2017 (9am) at 401 NW 2 Ave, Suite North-1011/Visionary Room, Miami, FL 33128, and you are invited to attend.

The team will facilitate multiple discussions with individuals and groups involved in the local child welfare system to engage various community stakeholders. The team’s work will build upon prior work completed in the region, including the Child Welfare and Behavioral Health Integration Self-Study and Peer Review, Southern Region Miami-Dade and Monroe Counties’ Child Welfare System of Care Peer Consultation Team Summary [found here], and relevant CIRRT reports [eventually will be found here].

The team, led by Lee Kaywork, CEO of Family Support Services of North Florida, consists of DCF leadership and external stakeholders. Team members include:

  • Vicki Abrams, DCF Assistant Secretary for Operations
  • Neil W. Boris, MD, Irving Harris Training Director, Florida State University–Center for Prevention and Early Intervention Policy Professor, Child Psychiatry
  • Skye Cleek, Program Manager: Henderson Behavioral Health
  • Rebecca Kapusta, DCF General Counsel
  • Kelly McGrath, DCF Assistant General Counsel
  • April May, DCF SunCoast SAMH Program Supervisor
  • Steven Murphy, Executive Director of Devereux Florida
  • Frank Prado, Director of Operations of Florida Statewide Guardian ad Litem Office
  • Gertrude (Trudy) Petkovich, Foster Parent Consultant
  • Lorita Shirley, CEO of Eckerd Kids
  • Dr. Joyce Taylor, Consultant and Former Interim CEO of Our Kids Miami-Dade, Monroe

If you have any questions or need more details regarding the meeting, please contact Gilda P. Ferradaz at 786-257-5059 or Gilda.Ferradaz@MyFLFamilies.com. We hope you will be able to join us for this important meeting to help ensure that the state and community are working together to meet the needs of Florida’s children and families.

Sincerely,

Mike Carroll
Secretary
Florida Department of Children and Famlies

Florida Supreme Court: no more summary dismissals of private dependency petitions filed by immigrant kids

The Florida Supreme Court issued a 3-1-3 opinion today with the majority ruling in favor of the child and the controlling opinion (i.e, the narrowest reasoning adopted by the most justices) being that trial courts cannot summarily dismiss dependency petitions filed by immigrant children seeking Special Immigrant Juvenile status. In doing so, the opinion echos the concerns of Judge Vance Salter of the Third District that “the recent spate of summary denial orders in the trial court and per curiam affirmances in [the Third District] suggest a categorical rejection of such petitions rather than the usual individualized evidentiary hearings and written findings of fact.”

The controlling opinion also states that the intent of the child to seek a Special Immigrant Juvenile visa is not a basis to summarily deny the petition: “If a child meets the statutory criteria for dependency, then child must be adjudicated accordingly.” The Third District’s determination that the immigrant child petitioner was not “truly” needy without any factual record or evidence was found to be error. The case will be sent back to the trial court for a full evidentiary hearing.

Chief Justice Labarga wrote the majority opinion, in which Justices Pariente and Lawson joined. Justice Lewis concurred in result only, but wrote that while he “cannot agree with the summary nature of the proceedings below,” he is concerned that the SIJ visa procedure transforms dependency courts into an “immigration processing system which is strictly reserved for our federal immigration authorities.” Justice Lewis recommends a legislative fix.

Justice Lawson, the newest member of the Florida Supreme Court, wrote additionally to state that he believes the case is ripe for review (in contrast to the dissent below) because it was clear the trial judge had no intention of permitting an amendment to the petition.

Justice Canady, joined by Justices Quince and Polston, dissented on the grounds that this particular child’s petition failed to state a legal basis for dependency. The dissenters agreed, however, that immigrant children should be given an evidentiary hearing and adjudicated dependent where legally appropriate, and that a child’s intent to seek immigration status is legally irrelevant.

The controlling opinion here does not address many of the substantive issues bubbling in the district courts, including whether maltreatment allegations can be dismissed as “remote” if the child is currently living with an appropriate caregiver. The three dissenting justices approved of this “remoteness” test, with Justice Canady writing that the proper focus is not on the parents’ past abandonment in this case, but on whether the child’s current placement is safe. The four majority justices did not adopt this reasoning.

This case was brought by the Immigrant Children’s Justice Clinic at Florida International University and Baker McKenzie. Congrats to both on a fantastic job! The law clinics at the University of Miami and Florida’s Children First filed amicus briefs in support of the child. And many other firms collaboratively worked on related cases that made this outcome possible.

I should note one more thing: many children had their cases summarily dismissed while this appeal was pending. If they aged out pending their appeal, those kids have no recourse under the Court’s ruling in O.I.C.L. Some of those children will be removed from the country and returned to unsafe homes. The work of seeking justice is far from done.