Remove everything that has no relevance to the story. If you say in the first chapter that there is a rifle hanging on the wall, in the second or third chapter it absolutely must go off. If it’s not going to be fired, it shouldn’t be hanging there.—Anton Chekhov
Let’s continue our look at legal doctrines that limit the State’s response to allegations of child abuse, abandonment, or neglect, with a recent case out of the Second District, J.P. v. DCF. The Father, J.P., was living with his children at his sister’s house. For some reason that the opinion omits, he was arrested and the police found an unsecured firearm. The arrest charges were eventually dropped, but the dependency court found the children at risk of harm because the Father had caused the children’s welfare to be at risk by leaving the gun around where the children could reach it. J.P. appealed, and he won because, the Court said, the police confiscated the gun and therefore the risk of harm had abated.
The legal doctrine that led to the reversal is called imminence. Under Florida dependency law, the State can intervene in all cases where children have been abused, abandoned, or neglected, and some cases where children are at risk of abuse, abandonment, or neglect. This second category of cases is called “prospective abuse” or “prospective neglect.” In these cases, the children haven’t been harmed yet–there are only risky conditions that make harm possible.
There is no bright line rule for what level of risk courts will tolerate before they allow the State to intervene. In fact the case law is all over the place, offering little guidance other than “imminent means more than just possible”. Courts have found imminent risk due to drug addiction, anger management problems, prior dependency cases with open case plans, untreated Bipolar disorder, and leaving a child in a halfway house. On the other hand, courts have declined to find imminence even when parents picked their children up from school drunk, came to work with black eyes from domestic violence, sexually abused other children, and had long histories of substance abuse. A task for another day may be looking at how much the imminence assessment is based on actual evidence of risk and how much is based on prejudice and bias for and against certain conditions and persons.
Imminence as a legal issue is even contentious among jurists. Chief Judge Shepherd, of the Third District, has extensively written against imminent risk as a basis for dependency, dissenting where he can and concurring “dubitante” where he feels bound by stare decisis. In fact, it is Chief Judge Shepherd the court in J.P. cites for its formulation of what imminent risk means: “the necessity of a continuing risk—not just a risk that existed sometime in the past, but a risk that is alive and merits judicial interference in the parent-child relationship to protect the child’s welfare.” This formulation provides no guidance on how to apply itself, but indicates clearly that imminent risk is something that should not be gratuitously found, turning the concept that an adjudication of dependency is “for the protection of the child and not the punishment of the parents” on its head.
This brings us back to the question about whether we need better laws or better lawyering in child welfare. In reversing J.P., the court notes that the Father was reunified with the child and the only case plan tasks were the boilerplate goals of maintaining housing and employment. In a case about a gun, a task about gun safety would have made sense, but is conspicuously missing. There’s also the issue of the mysterious arrest that triggered the child welfare investigation. An arrest does not prove a criminal act actually occurred, but the dismissal of charges similarly does not mean a criminal act did not occur. Some criminal acts, if conducted in the home of the children, are solid bases for a dependency. If this case were more serious than is described in the opinion, then where are those facts?
Or perhaps this case should not have been prosecuted in the first place. If the children were immediately reunified and no meaningful case plan tasks were required, then the case would last approximately 6 months and then be closed. A reasonably sharp attorney would know that an appeal filed toward the end of 2013 would take approximately 6 months to resolve, during which time jurisdiction and supervision would continue. The opinion was rendered in April 2014. If the Department dragged out the proceedings on weak grounds just to keep supervision, they did so at the expense of creating case law that undermines future cases of prospective neglect, especially those involving firearms. Judge Shepherd thanks you.