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Case Law Updates

Second DCA: Grandparent Standing and Limiting the Keeping Children Safe Act

Chief Judge Morris Silberman - Florida 2nd DCA

Section 39.01(51), Florida Statutes (2010), defines “party” to include “the petitioner.” Because the grandparents are petitioners in the trial court, they are not “essentially” parties, they are parties. Thus, we determine that they have standing to challenge the order. In addition, the effect of the order is to prohibit the grandfather from living with his wife, which affects his legal rights.

Reading subsection (2) on legislative intent as a whole with the remainder of section 39.0139 supports the conclusion that the Act is intended to apply to children who have been sexually abused or exploited. Based on the legislature’s express statement of intent to protect and reduce the risk of further harm to children who have been sexually abused or exploited, it appears that the Act does not apply to S.C. Thus, the trial court applied the incorrect law, thereby departing from the essential requirements of the law in ordering that the grandfather have no contact with his grandson based on the Act.

In re S.C., — So.3d —-, 2012 WL 246466 (Fla. 2nd DCA 2012) (January 27, 2012).

Grandparents and foster parents have been trying to get standing in dependency cases for a long time. They’ve been limited, however, by the definition of “a party” in Chapter 39, which explicitly does not include them. This is the stepping stone case that they’ve been waiting for: to get standing, they have to be petitioners.  The next step will be to join the Department’s petition as a private petitioner and see what happens. It will be interesting to see if future courts read the “affects his legal rights” language to be an implicit requirement of “some additional standing” that the court seems to have dismissed two sentences earlier.

The KCSA ruling is not surprising. Despite the Act’s good intentions, it tends to wreak havoc on justice, and for a while it was considered patently unconstitutional by everyone who read it.

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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

“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.

 

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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

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.
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Case Law Updates

C.L v. DCF: Default 101

It's no Taj Mahal.
Florida 1st District Court of Appeals

C.L. v. Florida Dept. of Children and Families
— So.3d —-, 2011 WL 3341490
Fla.App. 1 Dist.,2011.
August 04, 2011 (Approx. 1 page)

Default 101: You can’t default someone who tells you in advance they can’t be at the hearing for financial reasons. REVERSED.