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Case Law Updates

Called it! Z.S.M. ends in P.C.A.

As predicted, the case involving foster parent intervention and a brief accusation of social eugenics that I wrote about last week has ended with an anticlimactic per curiam affirmance. To wit: the opinion (or lack thereof).

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Case Law Updates

The Problem of LRM and Abandonment

Chief Judge Melanie G. May - Florida 4th DCA

The mother appeals an order terminating her parental rights. She argues the court erred in denying her motion to dismiss the amended petition, which failed to allege reasonable efforts to preserve and reunify the family, that termination was not the least restrictive means of protecting the child, and that the mother was not responsible for the lack of contact with the child. We find no error and affirm.

L.W. v. Department of Children and Families, — So.3d —-, 2011 WL 4578311 (Fla. 4th DCA 2011).

There are some interesting things to note about this case. First, this was an expedited TPR for abandonment, which DCF actually dismissed and the child herself adopted and prosecuted. Since there is no mention of the GAL Program except in the Appellee line, it’s not clear what role they played, but they apparently did not side with the child. This is a very simple testament to why kids deserve legal representation—the child’s legally valid position was dismissed by everyone in the room. I applaud this part of the case.

I take issue with the substantive reasoning, however. This case offers a picture of what direction LRM analysis is taking (if it’s going in any coherent direction at all, of which I am doubtful). LRM has gone through many forms over the years. First, it was a pressure release valve to prevent the automatic termination of non-victim siblings. Then it detoured briefly in the early 2000s when defense attorneys managed to convince a few judges that they had to consider the possibility of a permanent guardianship prior to TPR. The legislature and court eventually tamped that out. More recently, it has taken what I think is its purer form: the question of whether the parent has received procedural fairness and a reasonable opportunity to remedy the circumstances that caused the dependency.

What constitutes a “reasonable opportunity to remedy” is in flux. LRM should not even be needed in cases under 39.806(1)(e), because the statutory definition already requires reasonable efforts by DCF. The egregious abuse cases are generally accepted as not requiring an opportunity for rehabilitation, which is also consistent with the statute and therefore a meaningless addition. Abandonment cases, however, pose an analytic problem because those cases split down the middle: sometimes expedited TPR is ok, sometimes it isn’t. Case law has dealt with this in no less than three ways.

(1) “Egregious abandonment.” Chapter 39 defines “egregious conduct” as “abuse, abandonment, or neglect” that is deplorable by a normal standard of conduct. This implies that there are levels of abandonment and some of them are appropriate for expedited TPR. In practice, abandonment is more of an all-or-nothing proposition. Either you were able and had a relationship and provided support, or you didn’t. The statute provides no guidance on what a non-deplorable method of abandoning your child would be. Some attorneys have dithered about the reasons for the abandonment, but the reasons should get subsumed into the “ability” requirement, and not into grading whether, for example, abandoning your child to do humanitarian work is a difference that matters.

(2) Focus on the parent’s efforts or amenability. There is a set of cases that focuses on whether the parent was “knocking at the door,” attempting to make contact with their child, and was thwarted. See C.A.T., out of the Fifth DCA. This would probably also be more appropriately analyzed under the “ability” requirement, but instead often gets lumped into a least restrictive means analysis. If they were trying so hard, something must have made them unable to actually have a relationship.

(3) Focus on pre-existing relationship. Finally, there are a few cases that look to the original formulation of LRM and say that it is meant to re-establish a bond. Where there was no bond, there is no LRM violation in expediting TPR. Note this theory seems to eliminate the LRM requirement in a large category of cases—for example, newborns removed directly at birth.

L.W. falls uncomfortably into categories (2) and (3). The mother in L.W. did make some efforts early on, but eventually gave up. However, the court acknowledges that she was thwarted by the father and other circumstances. The Court says the mother has no current bond with the child, but ignores that she raised the child for eight years: the previous line of cases stress that LRM’s goal is to re-establish the bond through services. C.A.T., for example, finds this fact very important in denying TPR of a father. We know services could have been attempted with the L.W. mother because the trial court implicitly found that the relationship wasn’t harmful to the child by dismissing the no-contact order. Finally, the only testimony cited regarding support was that the mother did not have the financial ability to provide for the child—which should completely bar a TPR for abandonment.

It’s cases like these that reinforce Judge Sawaya’s opinion that LRM is a meaningless and superfluous requirement. As Judge Sawaya argued in T.P., “The ‘safe re-establishment of the parent-child bond’ is one of the factors the trial court must consider under section 39.810, particularly section 39.810(3). Therefore, the least restrictive means test is subsumed in the factors that must be found by clear and convincing evidence to exist under section 39.810. … I, therefore, conclude that application of section 39.810 renders the less restrictive means test obsolete, unnecessary, and meaningless.” T.P. v. DCF, 860 So. 2d 1084 (Fla. 5th DCA 2003) (J.Sawaya specially concurring; reversed on other grounds) (order of sentences inverted for dramatic effect).

Assuming that abandonment was proven, analyzing this case through MBI instead of LRM makes the outcome easier to understand. There is a permanent placement available; the mother admitted she couldn’t financially care for the child; the pre-adoptive placement is caring for the child’s needs, including the trauma she suffered with the father; there is no current relationship with the mother and thus no harm from TPR; the mother’s capacity to ever be reunified safely with the child is limited by her own problems; and the child clearly wishes not to return to the mother. The only factor against TPR might have been the recommendation of the GAL, which could easily be set aside on the weight of the other factors.

Maybe one day abandonment will be put on that egregious abuse list and taken out of LRM world altogether. Until then, good luck making sense of it, even when the outcome seems to be right.


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Case Law Updates

Florida Declines Jurisdiction Over Every Baby Conceived on Vacation There

Judge Martha Warner - Florida 4th District Court of Appeals
It is completely contrary to the legislative goals of the UCCJEA for Florida to assert jurisdiction to superintend the custody, shared parental responsibility, and visitation where the child is not and has never been a resident of this state. The mere fact of conception in this state is not such a tie to permit the courts of this state to exercise control in the face of express statutory authority precluding Florida from asserting jurisdiction.

Schaffer v. Ling, — So.3d —-, 2011 WL 4467341, (Fla. 4th DCA 2011).

If this has gone the other way, Florida would have become the judicial nanny for all 50 states, the territories, South America and most of Western Europe.
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Case Law Updates

A Small Pharmacy in Her Purse


Judge Jay P. Cohen - Florida 5th District Court of Appeals

On appeal, the mother argues that drug tests showing the use of drugs prescribed to her cannot support the conclusion that she failed to substantially comply with her case plan. Certainly, the legitimate use of prescribed medications should not lead to a parent’s loss of parental rights, but that is not the situation here. On multiple occasions, the mother possessed more medication, and in such a combination, as to belie any legitimate medical use. Additionally, she possessed unfilled prescriptions from several different physicians with dates close in time for the same medications. In short, this mother is the face of a problem of epidemic proportions—the obtaining of large quantities of prescription medications from numerous physicians.

T.K v. Department of Children and Families, — So.3d —-, 2011 WL 3861596 (Fla. 5th DCA 2011).

I could find no other TPR case involving addiction to prescription medication or doctor shopping. The only similar case was C.A. v. DCF, 27 So. 3d 241 (Fla. 4th DCA 2010), where a permanent guardianship order was reversed and the case remanded for immediate reunification after an independent doctor said that the mother’s medications were appropriately administered.  Obviously, these cases pose significant proof problems–the production of a single valid prescription usually negates any argument of misuse. It’s not every day, as in this case, where you find a parent carrying hundreds of pills in a purse.

But the policy proclamations and rhetoric in this opinion are interesting, including the footnote quote from Governor Scott stating that Florida is the epicenter of pill mills (he wasn’t too keen on doing anything about it, but that’s beside the point). Prescription drug addiction, which was previously a privilege of the rich, has become as available to the poor as fast food (using similar distribution models). And, as usual, the consequences for the same behaviors across classes is greatly disproportional. Cases beget cases, so look forward to future pill mill TPRs soon.

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Case Law Updates

C.G. v. DCF: Judicial Notice Is Ok

Judge Richard J. Suarez - Florida 3rd DCA

C.G. v. Department of Children and Families
— So.3d —-, 2011 WL 3250545
Fla.App. 3 Dist.,2011.
August 01, 2011.

The only thing interesting about this TPR appeal is the discussion on judicial notice. The Mother argued that the trial court erred in judicially noticing the dependency orders because they were entered at less than clear-and-convincing evidence. Judge Suarez for the Third DCA says that’s fine: dependency orders plus substantial and competent evidence at trial can equal clear and convincing evidence. AFFIRMED.