The posture of this case is complicated by previous appeals and the fact that the multiple children are differently situated. But here’s the gist: the Department brought a TPR petition against the mother and failed to prove the case. Florida law permits a judge to make a finding of dependency at the end of a TPR trial instead of granting the TPR. That wasn’t requested by the Department nor done by the judge; instead, the judge dismissed the petition. The Department then brought a new dependency petition alleging the same facts. The judge granted the dependency. The mother’s argument is that the Department is barred (collaterally estopped) from bringing the same arguments again and again until they get a win. The panel sounds sympathetic to the claim.
Florida has a history of weakening procedural protections for parents in child welfare cases in the name of protecting the child. The unintended consequence of this trend is the deterioration of the adversarial truth-finding process–the Department need not investigate very well or litigate very well if they know they will get a do-over in the rare case where an appeal is successful. The result is that the Department’s effort can be rationed to cases where courts push back, but parents have to spend significantly more time litigating technicalities and the court has to spend significantly more resources undoing or explaining away the procedural knots caused by “feeble” (to use the word from the oral argument) litigation of the Department. Though it may seem counter-intuitive, holding the Department more accountable to procedural rules is likely to result in better outcomes for children by raising the level of practice overall. Fortunately for this particular child, comments by the panel seem to indicate that the mother is actually participating in services and doing well–therefore the Trolley Problem of child welfare appeals (whether to trade this child’s immediate safety for future children’s well-being) is off the table and the court is free to rule in a way to guide future behavior without fear of current harm.
Edit: Sounding sympathetic does not always lead to a win. The case was PCA’d.