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Case Law Updates

The Power of Experts in Child Welfare Law

The basis of the petition to terminate the mother’s rights was the alleged insufficiency of her attempts to keep the children’s mentally ill and highly abusive father from her home and away from the children. There is no allegation that the mother has otherwise harmed her children or has not provided for their care. With regard to section 39.806(1)(c), the evidence does not remotely establish, as required, that “continued interaction with the [mother] threatens the life, safety, or health of the child[ren], and … that this threat cannot be remedied by the provision of services.” … Here, the evidence showed that, albeit without always following her case safety plan in every respect or achieving success in doing so, the mother conscientiously endeavored—in fact, as an examining psychologist testified, did everything “within her powers”—to protect the children from their offending father.

A.H. v. Department of Children & Families, — So.3d —-, 2011 WL 6783631 (Fla. 3rd DCA December 28, 2011).

This is a sufficiency of the evidence case. Because appellate briefs in dependency cases are not public, we have no way of knowing what evidence purportedly supported the trial judge’s ruling, and we’re left to accept the appellate court’s conclusion that there was none.

I write instead to comment on the power of the expert in this case. In the opinion, the psychological expert is cited as giving three recommendations: (1) that mother did everything in her power to stop the father, (2) the TPR should be denied, and (3) the mother was not in need of services. Only the third of those recommendations is arguably within the realm of psychological expertise. The first is personal opinion about the mother’s efforts; the second is a bald legal conclusion. No expert is cited on the other side.

The law appreciates the power and danger of experts. In guardianship cases, two of three experts have to agree that you are incompetent. In dependency and criminal cases, you are entitled to retain your own expert, paid for by the Justice Administrative Commission (JAC), to rebut the State’s case. The Department certainly spends a lot of resources on contracts with experts, and the Guardian ad Litem Program has been known to use its limited litigation budget to obtain its own expert in rare cases. Dependency, more so than almost any other area of law, is dominated by psychological experts and their predictions about future behavior. As was apparent in A.H., even their nonexpert opinions can carry significant weight in framing the facts of a case.

It’s noteworthy that in Dependency cases there is still one party that has no access to his or her own expert. The Justice Administrative Commission has recently taken the position in at least two cases–a TPR case and more recently a SIPP case–that children and youth in foster care who are fighting a proposed action by the Department have no legal right to paid-for experts. The reason, says JAC, is because the children and youth have no constitutional rights at stake.

I find this odd. I have never had any trouble identifying the constitutional rights implicated when a person is being indefinitely committed to a lock-down residential treatment facility where she will be subjected to forcible injections of psychotropic medication, physical restraint, and isolation against her will. Or when a child is facing the permanent loss of familial relations with his or her parent. JAC says there is no case or statute that says that this implicates constitutional rights. As I have heard wise judges say, there is also no case or statute that says today is Friday.

Stay tuned.

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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

Nonoffending Parents Given Fewer Rights than Offenders in Third DCA

The appellant is the mother of two children, K.B. (age nine at the time of the proceedings below) and A.V. (age three). She appeals an order denying her motion for reunification with K.B. in a circuit court dependency case following her substantial compliance with the tasks in her case plan. She has also appealed orders approving a general magistrate’s report finding that custody of K.B. should remain with her father (with visitation by her mother), terminating supervision by the Department of Children and Families (DCF), and terminating the circuit court’s jurisdiction. This case requires us to consider the applicability of different and apparently inconsistent statutory provisions relating to reunification,sections 39.522(2) and 39.621(10), Florida Statutes (2010).

S. V.-R., Appellant, v. Department of Children and Family Services, — So.3d —-, 2011 WL 5375047 (Fla. 3d DCA 2011).

This case is disappointing not only because it’s wrong, but because it is incomplete. The Third DCA has failed to address any of the following questions:

  1. Why doesn’t the more specific standard in 39.521(3)(b)2 apply here? This section directly addresses the disposition procedure for when there’s a non-offending parent, and states “The standard for changing custody of the child from one parent to another or to a relative or another adult approved by the court shall be the best interest of the child.”
  2. What should we make of In re G.M., — So.3d —-, 2011 WL 5061545 (Fla. 2d DCA 2011) (decided October 26, 2011), which applies BOTH 39.621(10) and 39.522(2) to the exact same factual situation, thus creating a endangerment + best interests standard? That seems to render the statutory scheme both consistent and fair.
  3. What about  B.C. v. Dep’t of Children & Families,864 So.2d 486, 491 (Fla. 5th DCA 2004) (“The non-offending parent’s presumptive right to custody is mandatory and not subject to a separate determination of the child’s best interests.”).
  4. Why wasn’t the case plan goal of “reunification with parents” perfected with placement with the nonoffending father? There are no goal options under 39.621 that would avoid this situation–there’s no goal of “maintain and strengthen” or “rehabilitate the offending parent for the purposes of visitation or time sharing”. After this case, lower courts will be dissuaded from offering a case plan at all to the offending parent because they will be forced to spring the child back to that parent’s full custody regardless of any change in situation in the interim. Closing cases with one nonoffending parent might save a lot of money but will also likely result in a lot of re-abuse.
  5. What about the effect on the child? She’s ripped from her home that she doesn’t want to leave just because her mother finally got around to finishing a parenting class. This is contrary to everything we know about child development, psychology, and humane treatment. The system is supposed to promote permanency and stability, not have a sword of Damocles hanging over the head of every child in the home of a nonoffending parent.
The evil of this decision is that it treats a nonoffending parent as though they were any old temporary custodian or foster care provider. The Due Process implications of that alone are huge. Neither the statute nor common sense required this outcome. The Third should grant a rehearing, and the legislature should create more clarity and flexibility in permanency options for future courts.
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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.