Weekly Roundup: Goodbye 2023 session, lots of federal rulings, and parents’ rights

It’s been a wild two weeks in the news. Here are a few things to check out on your long weekend.

What’s law?

The governor signed every foster care bill that was pending, so we can officially call this legislative session over (thank goodness).

Signed by the governor and now a law:

What are the feds doing?

Federal courts have been very busy lately “calling balls and strikes.” It makes it hard to know what the law is on big issues. Here’s some help:

Florida’s law banning Medicaid payment for medical (not surgical) gender treatment is blocked.

Florida’s law banning medical (not surgical) gender treatment for children is temporarily blocked but only for the kids who sued.

Florida’s law banning kids from “adult performances” is also temporarily blocked. This is ultimately a First Amendment free speech ruling, but parents’ rights come into the discussion.

The Eleventh Circuit bars parents from representing their children in federal court pro se, but the Fifth Circuit just opened the door a little if the parent can show that “the cause is their own.” I have no idea what that means.

Meanwhile, the Third Circuit held that a cousin who cares for a child is a “parent” under the IDEA, even when someone else has legal custody on paper. That should not have been controversial. The language is really clear.

Florida case law updates

The Second DCA reversed the TPR of a mother in jail. DCF only provided “minimal” assistance to her on her case plan, but the opinion doesn’t detail what that assistance was. The opinion rejects a cross-appeal from DCF that it proved that the mother’s incarceration was harmful to the child and therefore grounds to terminate her rights. No details there either. I guess being in jail is not enough.

Being a judge does weird things to people

I wouldn’t want to be a judge. You have to dress up and listen to people half-lie to you all day. Then you go to fundraisers so you can keep doing that, forever. Being a judge comes with powers that you’re not supposed to want to use. One of those powers is to jail people. Or in this case, to jail kids.

The short version is that a judge in a family case signed off on a custody sharing agreement between two parents. The kids, both teens, were not parties to the agreement and strongly objected to it when they found out. They objected so strongly that it caused a commotion out in the hallway. The judge went outside, personally intervened in the argument, and took the kids into a conference room to talk. When the kids wouldn’t agree to the arrangement, he walked them to jail and locked them up — himself. He then threatened them with foster care if they didn’t relent. They did.

The father sued the judge and the judge claimed judicial immunity. In an incredibly rare legal opinion, the Eight Circuit held that the judge’s actions were not immune from suit because he wasn’t being a judge in those moments. If he had signed an order locking the kids up, that would be judging. He instead chose to be judge, jury, and jailor. He will now be a civil defendant.

Something to Watch

I haven’t watched Take Care of Maya yet, but I understand that it’s generating talk. The New York Times calls it “grueling but…oddly deficient” for not exploring the structural forces at play in the case. Kate Erbland at Indie Wire reminds us that Daphne Chen did a great piece on the case back in the day. She also indirectly describes what it’s like to work on a foster care case: “Just as one story [in the movie] comes to a horrible close, others begin to spin outward, none of them able to find any sense of closure or completion, just more pain, no cure.” Yeah, that’s basically it for everyone involved.

What are parents’ rights?

Thanks to savvy political framing by conservative activists, we have a flood of new thinking and writing on the nature of parental rights. Here are a few recent articles that I found interesting.

Free-Market Family Policy and the New Parental Rights Laws – comparing legal pushes to support children vs. political pushes to empower parents.

Conceptualizing an Anti-Mother Juvenile Delinquency Court – delinquency cases punish whole families, especially mothers.

The Empty Promise of the Fourth Amendment in the Family Regulation System – giving police a social work degree should not make their intrusion into your home legal.

Bill to Protect Disabled Parents Involved with Child Welfare System Introduced – this would be a step.

Defending the Fundamental Rights of Parents: A Response to Recent Attacks – argues a pre-political view of parental rights. There’s some “adoption is an act of love” talk in there without any discussion of forced adoptions being an act of state violence against those pre-political rights. It also presupposes a very specific cultural definition of “parent.”

Relatedly, here’s a great youtube video on the different systems languages use to classify kinship. The word “parent” doesn’t cover the same group of people in every language and culture. Spoiler: English uses the Inuit system, and many, many languages do not.

Something to Read

News reports

‘Should’ve never taken them’: Family frustrated by DCF turnover rate, kids sleeping in office – Florida’s news outlets have gotten much better at reporting on DCF from the perspective of the citizens whose lives are upended by it. But you can still hear the struggle in this one, which ends with a link to a job fair to be a DCF worker.

Academic articles

Disrupting Carceral Logic in Family Policing – a book review of Torn Apart that argues the harm done by children and parents’ attorneys needs to be brought into the critique of family policing.

A Call to Action for Parents’ Lawyers in the Family Regulation System: Bearing Witness as Praxis and Practice in the Face of Structural Injustice – we need more public discussion of what we see daily.

For Their Own Good: Girls, Sexuality, and State Violence in the Name of Safety – tracing the history of status offenses as a form of state control.

State policies on child maltreatment and racial disproportionality – “child maltreatment” is a legally defined category and the definition varies state to state.

Effect of home environment on academic achievement in child protective service-involved children: Results from the second national survey of child and adolescent well-being study. – money can buy education.

The Court’s One-Way Street: L.S. ex rel. Hernandez v. Peterson’s Missed Opportunity to Expand Children’s Constitutional Rights Missed Opportunity to Expand Children’s Constitutional Rights – maybe the state owes children a higher duty of safety when they’re in schools?

Also related, a news article links COVID, the death of grandparents, foster care expansion, and child violence. I don’t know if there’s good evidence to support that, but someone should look into it.


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