It’s been so long since any interesting case law came out, so this week is super exciting.
District split: What are the participation rights of caregivers?
Most legal cases divide the world into the parties (the people involved in the case) and everyone else. The parties can make motions and present evidence or witnesses. If they lose their case as a result of legal error, they can appeal. The parties largely determine the direction and scope of the case.
Dependency cases have a lot of parties (parents, DCF, GAL, and kids), but they also add a new group of people called participants. These people are witnesses that the judge grants access to the record to “be heard” even if nobody wants them to be. This is a very jarring experience for attorneys who practice in other areas of law. In a criminal case, a person can’t come into court and ask to tell the jury things on their own. They would have to be subpoenaed by the parties. Participants in dependency cases usually include service providers, caregivers, teachers, and even neighbors, friends, or family. Participants are still just witnesses, though. If the judge doesn’t do what they ask, they have no right to make demands or appeal. They have no legally recognized interest in the outcome.
There is, however, a group of people with some personal interest that the law is beginning to recognize. These are mostly caregivers, but occasionally a relative or pre-adoptive family that doesn’t have the child yet. In 2021, the legislature changed section 39.522 to create more process before removing a child from a long-term placement. The question, then, is whether that created enough of a personal interest to grant that caregiver some form of limited party status (i.e., the right to present evidence, make demands, and appeal if denied).
Last year the Third District said yes.
In February, the Fourth District said no.
And a few weeks ago the Fourth District certified that this is a split in the districts, which means the question could go to the Florida Supreme Court.
In the meantime, caregivers in Miami have more rights than caregivers in Boca Raton.
Some actually interesting case law
Here are some other cases that hit my radar this week.
The parents of a seventeen-year-old petitioned to change their child’s name. All good, except they didn’t include any details about why the change would be in the child’s best interests. The trial court denied the petition and they filed for rehearing with more information which was also denied. The appellate court affirmed the original denial and reversed the rejection of the request for rehearing and ordered the trial judge to approve the name change. Name changes are routine and judges don’t typically ask that many questions about them if both parents and an older child consent. Reversals don’t usually come with mandates to enter the order requested, either, so I would bet you a sandwich that this was a trans kid.
Meanwhile, the Fifth District had a case involving the birth of a new child in an existing case. The legislature defined having a baby during an open case as “abuse” of that child. Not neglect, not an unfortunate occurrence — abuse. A trial court denied a shelter finding there was no imminent risk of abuse to the new child and the Fifth District reversed. The Department had removed the older children for abuse to them as infants, so the Fifth could have looked at the facts and said, “Yes, based on the open case there is a nexus of harm to this new child.” But it instead went with a straight statutory reading. There will be a future case where the situations of the parents and kids are so different that this law makes no sense. This wasn’t that case.
Finally, the GAL Office got into a discovery dispute with a parent in a TPR trial. The parent wanted to admit records of the GAL Office, which I would have thought were party admissions if the GAL was supporting the TPR. The parent sought a records custodian certificate, which apparently never happened. The parent then sought an address to subpoena a records custodian, but GAL would only give a P.O. Box, which is not where people typically live or work. Ok, that’s sanctionable. Sure enough, the parent moved for sanctions and the certificate was promptly produced.
The judge asked the GAL how it intended to handle this situation in the future. I guess the answer was less than satisfactory because the trial judge ordered GAL to produce the certificates in the future or it would be deemed a waiver. GAL filed for certiorari and prohibition. The Second District denied both on jurisdiction grounds. The Second noted that it’s correct that the court can’t have a blanket policy requiring a certificate when the rule allows proof in multiple ways, but the trial court didn’t actually enforce that order or sanction GAL here so there’s nothing for the appellate court to correct. The GAL is free to come back if the issue arises again.
What became a law?
Last week I listed the child advocacy related bills that were passed by the legislature. Here’s where they all stand as of today.
Signed by the governor and now a law:
SB 404 limiting release of autopsy reports for kids who die from domestic violence.
- The bill creating a task force to figure out why kids run away.
- The bill that creates a process for adult dependent children to obtain support from their parents.
- The bill that limits gender treatment for minors and payment for treatment for adults.
- The bill creating a children’s ombudsman and requiring notification of foster kids’ rights. (This was a Florida Youth Shine priority, so congrats!)
- The bill requiring concurrent permanency planning in CBC contracts.
- The bill requiring DCF conduct a trauma screening on kids when they are taken into custody.
- The bill to expand KidCare eligiblity.
New Relative Caregiver Rules
DCF put out new rules on the Relative Caregiver Program. I haven’t read them closely enough to have any thoughts, but wanted to get the word out. Maybe more next week.
We have to do better in drug cases
A new report in the New England Journal of Medicine documents an important gap in drug treatment. Addiction treatment medicine is vastly underprescribed, especially by race, study finds. This is just a reminder that nearly half of kids in Florida’s system were removed out of state concerns over their parents’ drug use. That’s 10,000 kids. Also a reminder that those kids, even controlling by age, have the lowest reunification rates. There’s an online tool called ATLAS to help people identify what type of treatment is best for them.
Need something to read?
Imprint: States Nationwide ‘Professionalize’ Foster Parenting to Better Support Youth. Getting $4,300 per month per child probably helps stabilize things a bit.
Forbes: The Worst States For Mental Health Care, Ranked. The rankings are based on objective measures of access. Florida is the fifth worst.
Some law review articles:
- Student Comment: A Child’s Constitutional Right to Family Integrity and Counsel in Dependency Proceedings
- Which reminded me of Shanta Trivedi’s My Family Belongs to Me: A Child’s Constitutional Right to Family Integrity
- Essay: Fractured Families: LGBTQ People and the Family Regulation System
Forensic interviewing: A preference for the proximate occurrence: Adults’ relative temporal judgments and interpretations of children’s judgments. This is probably paywalled, so here’s the point. Kids don’t remember events relative to other big events (landmarks) the same way adults do. For example if you ask, “Did it happen close to your birthday?” kids will tend to look forward in time to their next birthday even if their last birthday was a few weeks prior to the event. Their answer would then be “no.” Adults don’t understand this answer in relation to other evidence and interpret it as a credibility issue. Use landmark questions carefully.
The last two are a conversation between two very grounded academics, so worth a read.
- Point: Pragmatic Family Law
- Counterpoint: The Unpragmatic Family Law of Marginalized Families
That’s it for this week. Have a great weekend!
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