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Case Law Updates

Section 39.806(1)(i) now has an expiration date

Three years.

As noted above, Appellants’ parental rights were terminated for their previous child, D.B., on June 12, 2009. Almost three years later, on March 31, 2012, V.B. was removed from Appellants’ custody. This time frame is relevant under the holding of F.L. We find that, as a matter of law, such a time frame contains very little probative value as to whether the prior termination indicates a risk of neglect. In other words, the prior termination was not so close in time to this proceeding as to provide competent, substantial evidence that Appellants pose a risk of significant harm to V.B. The trial court’s order essentially revisits the findings of the prior terminations and finds that Appellants have not demonstrated a capacity to appropriately care for V.B. But again, under F.L., it is not the parents’ burden to show they are capable of such care; it is the Department’s burden to show by clear and convincing evidence that Appellants cannot care for V.B. F.L., 880 So.2d at 610.

J.B. v. Department of Children and Families, — So.3d —-, 2013 WL 627238 (Fla.1st DCA 2013). (emphasis in the original).

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Case Law Updates

Judge Griffin in the Fifth: 39.806(1)(j) Makes No Sense

Judge Griffin dissented in part from a TPR appeal to point out the lunacy of section 39.806(1)(j):

I am unable to concur in the decision to remand for removal of the termination under Section 39.806(1)(j), Florida Statutes (2011). That section was added to the list of grounds for termination of parental rights in 2008, and, even though substance abuse is a primary cause of parental failure in this state, there have been no reported cases under this subsection. This is not surprising, given that it doesn’t make a lot of sense. This ground for termination provides:

(j) The parent or parents have a history of extensive, abusive, and chronic use of alcohol or a controlled substance which renders them incapable of caring for the child, and have refused or failed to complete available treatment for such use during the 3–year period immediately preceding the filing of the petition for termination of parental rights.

So … looking backward for a period of three years from the date of filing the petition for termination of parental rights based on a parent’s “extensive, abusive and chronic use of alcohol or a controlled substance that renders them incapable of caring for the child,” this ground is not available unless, during that time period, the parent has either refused treatment or failed to complete “available” treatment. Seemingly, as the statute is written, if in May 2012 the Department of Children and Families files a termination of parental rights petition against a parent whose extensive, abusive and chronic drug abuse makes them incapable of caring for their child, the court is powerless to terminate parental rights if, at some point, in the preceding three years, the parent had “completed” an “available” treatment. It will not matter that the parent relapsed and has remained a barely functioning addict and a failed parent ever since. The trial court thought this made no sense.

I think I will stand with the trial judge on this one. It is understandable that a parent should not face termination of their parental rights due to addiction to alcohol or drugs unless they have, in the recent past, been offered access to treatment, but why would it matter whether the treatment were refused, completed or left incomplete if the parent remains incapable of caring for their child? What matters is that treatment was made available, and the parent remains incapable of caring for their child.

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Case Law Updates

Second DCA En Banc Clarifies TPR Nexus Requirement, Concurrence Dissects LRM

The Second DCA issued an incredible en banc opinion yesterday, clarifying its nexus requirements for TPR of siblings. In re Z.C., — So.3d —-, 2012 WL 1605425 (Fla. 2nd DCA). Authored by Chief Judge Silberman (joined by seven other judges), the opinion holds:

DCF argues that the nexus test applied by this court is something different than the totality of the circumstances test the supreme court discussed in F.L. DCF points to the following language this court has repeatedly quoted and applied to determine what evidence would satisfy the nexus test: “ ‘Generally, this nexus is established when the parent has a mental or emotional condition that will continue, such as mental illness, drug addiction, or pedophilia, and which will make it highly probable that in the future the parent will abuse or neglect another child.’ “ A.D., 870 So.2d at 238 (quoting C.M.,844 So.2d at 766); see also T.L. v. Dep’t of Children & Family Servs., 990 So.2d 1267, 1272 (Fla. 2d DCA 2008); M.C. v. Dep’t of Children & Family Servs., 940 So.2d 571, 575 (Fla. 2d DCA 2006); G.R. v. Dep’t of Children & Family Servs., 937 So.2d 1257, 1262–63 (Fla. 2d DCA 2006); M .C. v. Dep’t of Children & Family Servs., 936 So.2d 764, 766 (Fla. 2d DCA 2006).
While this language suggests that certain evidence would satisfy the nexus test in dependency and termination cases, these cases do not require this specific type of evidence to meet the nexus test. InC.M., for example, this court relied on the absence of such evidence to reverse an adjudication of dependency as to a father’s biological children based primarily on an incident in which he struck his teenage stepdaughter during an argument. 844 So.2d at 765–67. However, the court did not reject the application of other circumstances in favor of such scientific evidence. There was simply insufficient evidence of any circumstances that established a substantial certainty that the father would similarly abuse his biological children.
Instead, these cases merely suggest circumstances that might be considered as part of the totality of the circumstances to satisfy the nexus test. We conclude that this court’s use of the term “nexus” is therefore consistent with the totality of the circumstances test described by the supreme court in F.L.

 

Are lawyers in the Second interpreting this as a softening of the previously hard-line nexus rule? That’s how I tend to read it.

Equally incredible is Judge Altenbernd’s dissection (in a special concurrence joined by five other judges) of the convoluted LRM jurisprudence that has developed since Padgett was first announced. Judge Altenbernd argues that LRM was never meant to be a case-by-case substantive due process requirement, but instead should be used to determine whether a particular termination ground is constitutional on its face. He admits, though, that his concurrence is more treatise than opinion and future work should be done “[i]f or when we can revisit this law without harming children or disrupting families.”

In my experience, LRM has become the last bucket in which to pour your gut instinct when a TPR simply doesn’t feel right. It otherwise provides nothing that’s not contained statutorily in Chapter 39. It will be interesting to see if courts take up the challenge to use LRM more carefully, consistently, and narrowly in the future.

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Case Law Updates

Somewhere Between Henderson and M.M.: TPR’ing for Poverty

The trial court found that the Father breached his case plan in four material aspects: (1) intentionally absconding to Oklahoma, (2) concealing the fact of his relocation to Oklahoma, (3) failing to obtain approved housing, and (4) continuing to neglect N.R.-G. despite the completion of parenting classes. Because these breaches did not pose any danger to N.R.-G.’s well-being and safety and were attributable to the Father’s lack of financial resources and the Department’s failure to provide services, we conclude they are not sufficient to support a finding that the Father failed to substantially comply with his case plan.

As with the mother in Henderson, the Father’s inability to maintain adequate housing was due to factors beyond his control. The evidence established that he was consistently employed, and there was no dispute that he was earning the best salary he could with a fourth-grade education and his language limitations. And, unlike the mother in M.M., there was no evidence that the Father was lackadaisical in his efforts. In fact, he tried within his limited means to provide safe housing for the children, he went through the effort of obtaining private counsel, and he sacrificed a job in Oklahoma to return to Florida to defend his parental rights.

In re N.R.-G., — So.3d —-, 2012 WL 1448511 (Fla. 2nd DCA 2012).

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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

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

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.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.

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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.