Categories
Case Law Updates

Permanent Guardianship Reversal #2

Permanent guardianships are hard. You have to give people notice, make all these findings, and order visitation and stuff. So annoying, right? This is the second permanent guardianship reversal out of the Fifth DCA this year. I guess they’re winning.

Although the trial court’s decision is supported by competent, substantial evidence, the final order itself does not contain or reference the detailed findings required by section 39.6221(2)(a), Florida Statutes (2012). …

Although the Department highlights that the trial court ordered four hours per week of visitation at the hearing on the matter, the same is not reflected in the permanent guardianship order. Rather, the final order simply states that visitation shall be solely at the discretion of the guardian, which is insufficient under section 39.6221(2)(c), as explained in In re J.L.R., Jr.

C.C. v. DCF, — So.3d —-, 2013 WL 756346 (Fla. 5th DCA 2013).

Categories
Case Law Updates

“Judicial Event Horizon” – Dual Maternity in Florida

A lesbian couple has a baby (one supplies the eggs, one supplies the womb), raises it, and eventually separates. The birth mother runs to Australia. The biological mother seeks to assert parental rights.

Our analysis reveals that there is nothing in chapter 742, and specifically section 742.14, that addresses the situation where the child has both a biological mother and a birth mother who were engaged in a committed relationship for many years and who decided to have a child to love and raise together as equal parental partners. This is a unique case, and the appellate courts in Florida have never before considered a case quite like it. Based on the facts and circumstances of this case, we can discern no legally valid reason to deprive either woman of parental rights to this child.

We certify to the Florida Supreme Court the following question as a matter of great public importance: Does application of section 742.14 to deprive parental rights to a lesbian woman who provided her ova to her lesbian partner so both women could have a child to raise together as equal parental partners and who did parent the child for several years after its birth render the statute unconstitutional under the Equal Protection and Privacy clauses of the Federal and State Constitutions?

T.M.H., Appellant, v. D.M.T., Appellee., — So.3d —-, 2011 WL 6437247 (Fla. 5th DCA 2011) (December 23, 2011).

Almost the entire majority opinion is written to address the lengthy arguments by the dissent. I would read that to mean the Fifth DCA expects the Florida Supreme Court to take this one up.

 

Categories
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.

Categories
Case Law Updates

City of Orlando v. Pineiro: What not to Say in Closing Argument

Florida Fifth District Court of Appeals

City of Orlando v. Pineiro
— So.3d —-, 2011 WL 3359613
Fla.App. 5 Dist.,2011.
August 05, 2011 (Approx. 7 pages)

My honest thanks to the Fifth DCA for publishing a whole opinion on improper closing argument. My tongue-in-cheek thanks to anonymous counsel for making it possible.

Improper arguments covered in the opinion include:

  • golden rule
  • send-a-message
  • value of a life
  • derogatory remarks about counsel
  • “do anything to win”
REVERSED and REMANDED FOR NEW TRIAL.