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Third DCA bans preemptive surrenders

The Third District Court of Appeal in Florida issued a surprising opinion last week in D.M. v. Department of Children & Families. The case involved a child born in 2007. The Mother signed a surrender of her rights in 2010, but no TPR was ever entered. The child was eventually placed back with her. Ten years later, she refused to pick the child up after a Baker Act, and he was sheltered once again.

A year later, DCF filed a petition to terminate both parents’ rights. It alleged the grounds of abandonment, failure to comply with the case plan, irrespective of services, 12-of-22 months, and three-or-more removals. On the second day of trial, the child’s mother executed another surrender. The judge conducted a colloquy and accepted the surrender, over the child’s objection that it was not in the child’s best interest to terminate her rights. The trial continued and after hearing evidence the judge terminated both parents’ rights.

Let’s acknowledge for a second the value of having an attorney for the child here. Without the child being represented, the judge would not have heard the full weight of the child’s position that the mother’s rights not be terminated. The Department, guardian ad litem, and the mother were all in agreement. The person who had to live with the decision the longest was not, and their attorney translated that position into legal action. Sure, in the end the judge granted the TPR, but after a much more deliberative review than would have occurred if the child had not had counsel. The appeal is not about that, though. The court acknowledged in a footnote that the child had an interest in family integrity and his due process rights were protected through his attorney and the ample process involved.

The opinion is actually about the mother’s surrender. The Third District held that the final judgment on the mother’s termination must make “findings of fact specifying the act or acts causing the termination of parental rights.” The language is right from the Juvenile Rules on consents in TPR cases. Those findings must go beyond the parent’s consent and justify the underlying facts that support the termination of their parental rights. The court likened it to a criminal plea, which must be made on some factual basis of an actual crime. It remanded back to the trial court to make those findings, likely by stipulation from the parties if everyone agrees (but it appears the child does not).

The opinion is explicitly based on a Fifth District opinion from 2003. See C.B. v. B.C., 851 So.2d. 847 (2003). In that case, the mother filed a private TPR petition against the imprisoned father, who was alleged to have committed sexual abuse. To avoid the egregious details of the petition in the final judgment, the father executed a surrender. The trial judge ordered the mother to draft a final judgment based solely on the father’s surrender. The Fifth District held that the Juvenile Rules require, when a parent consents to a TPR, that the underlying facts be incorporated.

The holding doesn’t sound crazy, until you think through the implications. Many parents surrender early in a case, long before DCF files a petition to terminate their rights. In Northeast Florida, for example, a certain judge has been known to talk parents into surrendering at the shelter hearing. D.M. seems to hold that you cannot do that. If there is no other ground for a TPR, then there can be no independent factual basis to support a surrender. There won’t be an independent basis in most cases until a parent has at least attempted a case plan, adding months to a case that nobody benefits from.

I think the Third’s opinion gets the law wrong because the Fifth got it wrong. Under Chapter 39 and the Juvenile Rules, there are two distinct forms of legal consent at play here: (1) a parent’s surrender of the child to the Department and consent for subsequent adoption, and (2) a parent’s consent to a petition to terminate their parental rights. They are not the same thing.

A surrender to the Department is an independent ground for a TPR. If the surrender is executed prior to the filing of a TPR, then the only ground in the petition is likely, but not necessarily, the surrender itself. The parent’s surrender waives all future notice and therefore the TPR goes through on the basis of the surrender alone. In these scenarios, the consent is given to DCF for the adoption, but the parent is never even noticed for an arraignment at which to take a plea.

The second type of consent is the legal plea that occurs after the filing of a petition against a parent. This consent must be a response to a legally valid petition. In dependency law, the options are deny, consent, or admit. Just as you cannot plea to a crime with no factual basis, you cannot consent to a TPR petition that is not legally sufficient. If you want to get TPR’d that badly, you can surrender. They are not the same thing. The court’s ruling that surrender is equivalent to consent and must be accompanied by other grounds effectively nullifies the provision that surrenders are independent grounds for TPR.

And that’s where the Fifth District got it wrong back in 2003. The father in C.B. did not consent to the petition. In fact, he surrendered to create a new ground for TPR because he specifically disagreed with the allegations in the original petition. The criminal analogy is not that he would be consenting to something without a factual basis — instead, he was accused of one crime, came to court, punched the bailiff, and then asked for his first charge to be dismissed because he’s going to jail anyway.

In more legal terms, the father engaged in a form of unilateral stipulation. It’s a very common trial tactic: you stipulate to a witness’s testimony or an expert credentials because you believe the effect of their testimony will hurt far worse than the substance of their testimony. But this was unilateral stipulation to the extreme: a petitioner in a TPR case only needs to prove one ground, but a petitioner still has the right to prove their whole case.

In a criminal case you cannot plead to a misdemeanor to preclude the state from going forward with felony charges. In a civil case you cannot admit negligence to preclude a plaintiff from going forward with their intentional tort claims. The legal claims, if proven, have different legal effects. And the same is true in dependency: an involuntary termination can be automatic grounds for a future case involving a different child. A voluntary surrender cannot.

So, the trial court in C.B. erred by dismissing the mother’s other grounds once the father strategically created a new one. The appellate court in C.B. then erred by looking to the consent language for a remedy (“let’s just make the final judgment list all the bad stuff”), when the appropriate resolution would be a ruling on whether a court can halt a trial once one ground is proven (“let’s still give her a chance to prove the bad stuff”). Because the father in C.B. didn’t really consent, there could be no stipulated facts for the final judgment language. They were going to trial regardless.

Alternatively, the Fifth District could have considered whether a parent can surrender a child not to the Department and not for subsequent adoption. In C.B., the mother argued that she was standing “in the shoes” of DCF for the purposes of accepting the surrender, but her argument was backwards: the father couldn’t surrender because she’s not DCF whether she wanted to accept it or not. Maybe we don’t want parents to just be able to surrender their rights and walk away, child support being a right of the child and all. It is not surprising that C.B. has only been cited one other time in 17 years, and not even for the legal principles at play here.

So C.B. was wrong on the law, and D.M. was wrong for following it, but I’m not very upset about the result. I have never been a fan of preemptive surrenders by parents. The father in C.B. appears to have been gaming to prevent public record of a heinous act. (He had already managed to get a no contest plea in criminal court.) But preemptive surrenders most frequently happen on the worst day of a parent’s life. They are often a result of the Department inviting a parent to trade the surrender of one child in exchange for leniency on a case plan for another (or some future) child. These decisions are fraught with problems, and too frequently result in a child just getting orphaned into foster care with no real plan.

Admittedly, the Juvenile Rules do not make any of these distinctions very clear and in fact they seem to conflate pre-filing surrender and a plea of consent to a petition. The rules never align with the statutory language that the parent’s consent during surrender is to the child’s placement with DCF for adoption. That may be worth someone looking at more closely.

It’s worth noting that even on a surrender the court still has to find that the termination is in the child’s manifest best interests (a lengthy analysis of the child’s circumstances) and the least restrictive means to protect the child from harm (a legal analysis to determine whether the parents’ rights were properly protected). It sounds like the court did that here. The law allows preemptive surrenders whether I like them or not. Maybe that should change.

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