DCF holding workshop on Extended Foster Care and PESS rules today

The new Independent Living Program went into effect on January 1, and since that time it’s been operating without administrative rules. That’s not for lack of effort to get rules passed. Good people have been working on this: a previous round of proposed rules, which were detailed and provided lots of support to youth and guidance to workers, was rejected by the governor’s office. This round of proposed rules does almost nothing except create the forms that have to be filled out and tells youth how to appeal the decision if they get cut.

The new proposed rules are here:

On each of those sites, click “View Notice” and it will open a Word Doc that contains the proposed rules.

The workshop is open to the public. If you want to participate, you need only call in: 1-888-670-3525 Code: 3148793079#.  EFC is 10:00-12:00 and PESS is 1:00-3:00.

Florida Supreme Court accepts ineffective assistance of counsel case

This is huge. The Florida Supreme Court has granted review in the case of a mother who lost her parental rights at a trial which began with her defense attorney informing the court that he was not prepared to go forward. Oral argument will be February 3, 2015. Briefs are due November 20 and 25. No continuances. The justices granting review: Labarga, Pariente, Lewis, Quince, and Perry.

I’ve already written my opinion on this matter. There’s no good reason to not have a procedure to handle IAC claims in termination cases. Not having one causes a lot of problems and undermines the fairness of the whole process.

Defense attorney starts opening argument with “I’m tired and not prepared to do this trial,” courts still uphold TPR

Let’s say you’re a parent facing termination of your parental rights in Florida. The following cumulative acts by your attorney would not be considered ineffective assistance of counsel:

  1. filing an untimely motion for a continuance to investigate prospective fathers; [actually the sin here was probably assuming that a judge would grant an unopposed motion for continuance]
  2. admitting he was exhausted and not prepared to go forward during opening statements;
  3. erroneously believing the mother was still a minor when the child was sheltered;
  4. allowing the introduction of hearsay in the form of previous judicial reviews and testimony concerning the mother leaving a sobriety program and being arrested for prostitution in Georgia, the child not being allowed to live with the mother at a halfway house, and the child’s behavior changing after he resumed visitation with the mother;
  5. failing to file a witness list and opposing the mother calling a witness on the ground it was not in the mother’s best interest;
  6. failure to cross-examine the guardian ad litem or object to the guardian’s report on timeliness and hearsay grounds;
  7. failing to move for a judgment of dismissal at the conclusion of the Department’s case;
  8. failing to pursue on redirect examination the mother’s claim that a relative placement was available for the child;
  9. misleading the court during closing argument that the Department did not provide a qualified case manager for the mother, who had mental health issues; and
  10. failing to object to the trial court’s failure to inform the mother of the availability of advocacy services under section 39.502, Florida Statutes (2011).
J.B. v. Dep’t of Children And Families, 1D13-4346, 2014 WL 4976981 (Fla. 1st DCA 2014).

A lot is made about how ineffective assistance of counsel claims would delay permanency for a child, would be vulnerable to strategic manipulation by clever defense attorneys, and aren’t “authorized by the rules.” Let’s put those to rest:

First, dependency and TPR cases take years to resolve. The state doesn’t start talking “right to permanency” until it is strategically advantageous for them to do so. How many resets happen because DCF didn’t prepare the JRSSR or case plan, or didn’t follow up on a referral, or didn’t serve someone they had to serve? And how much faster could cases go if DCF invested in service providers that weren’t hours away from the people that needed to go to them? DCF should be equitably estopped from ever making a timing argument until they get their house in order.

Second, don’t side-eye defense attorneys for being strategic: all attorneys are strategic. By not supporting an IAC claim, you are making a policy decision that mistakes made by DCF deserve infinitely more time to correct, while mistakes by the parents’ attorney are not worth even considering on the record. If a DCF attorney screws up, he or she will either get a week to fix it or screamed at by a judge. Accumulate enough mistakes and maybe he or she will get transferred or quit and go make more money doing something else. If a defense attorney screws up, the parent can’t see their child ever again and that attorney gets their dispo order for JAC and back on the wheel. There’s no process in place currently that identifies poor defense lawyering as a negative, especially when permanency (read expediency) is the controlling metric: bad defense attorneys can actually speed up permanency in all the wrong ways.

Finally, the rules argument is not very compelling: if the constitution requires due process, it must be real and not illusory. Any court could have created a prophylactic rule by now. The opinion even suggested one. When an attorney starts his opening arguments with “I’m so tired, I can’t think straight, and I’m definitely not prepared to go forward” that should cause everyone in the room to pause and be worried that they are treading into dangerous ground. Currently that territory isn’t even remotely dangerous for the state. It is a rational strategy for the state to ram the TPR through and see what happens on appeal.The DCA is correct about one thing: we need a procedure in place so that attorneys on both sides will know what the minimum expectations are and will not lure each other into error.  The Supreme Court should issue a rule. The criminal rule cited is a good start.

(I do want to say congratulations and condolences to that attorney for pushing through, though.)

On what I would change

I was talking with someone recently about what we’d change in the system if we had a magic wand. I decided against the normal lines of “more money” or “better services,” and said make it trustworthy, safe, and welcomed by the families it’s supposed to serve. Build relationships with people and communities before the children are even born, not after things have already fallen apart. Build quality community childcare centers, support churches that support families, improve school programs, parks, and streets. Create community mental health centers within a 20-minute distance from anywhere in your city or town. Work with the people to commit to eliminate homelessness, to reduce crime, to secure food stability, to expand access to transportation and work programs. And inject into every one of those projects the goal to protect and raise up the children you find there.

Many of those projects are already being done, but they’re not enough. To be welcomed by the people you serve, you also have to stop the threats and the coercion, the violent shows of force, the piling on of expectations and guilt until people crack and give up. No more courtrooms, bailiffs or liaison officers with guns. No more case plans or arbitrary permanency goals. You could still terminate rights for egregious abuse, abandonment, and surrenders; but declare an amnesty for anyone else who seeks help for as long as they seek it. Make a place where people who need support willingly go for it, instead of a system that repeatedly slams the door in people’s faces until they are broken and defeated. Building a kinder system may keep people around longer. The drive to help is why many people work in child welfare. The bureaucratic, police-state nature of it is what runs many people out in tears.

Your mind just went to “but people will take advantage of that system and never actually change and kids will linger, will suffer, will…” You can let go of that too. Taking advantage of help is what help is for. The kids will be fine at grandma’s, dad’s, or the nice lady down the street’s. We would have to change how and where kids are placed. Being out of home is only “lingering” when out of home is bad. Otherwise, it’s just called “living” and would be measured by how each individual child is doing at it. (Like family court already does, so I really haven’t made anything up here.)

Any system that you cannot navigate safely without a lawyer always by your side is not a good system. Lawyers are a road sign of danger and imminent injustice. And any program lead by lawyers whose “vision” is to robotically apply the law will just hurt those it serves. The law is a rough sketch that guides us; it’s a necessity to organize our collective actions, a basic framework to prevent injustice. We should not ignore it, and should continuously move it forward. But, the law is a floor not the heavens; the beginning not the end of our opportunity and capacity to help. The law is not creative, compassionate, empathetic, caring, or wise. The people who implement the law bring those things to it, and give it life. Lawyers who know how to build should stay. Lawyers who only tear things down can go.

This is not just feel-good talk. We consistently make the mistake of “improving” the system to suit the needs of power instead of people. In the recent Peer Consultation Team Report on the Southern Region, nobody on the committee talked to a parent, child, or caregiver about what they experience as the supposed beneficiaries of the system. The word “parent” doesn’t even exist in the report not preceded by the word “foster.” If your instinct was that their opinion is biased or doesn’t matter, that momentary dehumanization is part of the problem. Take a look at this paragraph from a recent appellate opinion:

DCF determined that the father and E.B. were with the mother and A.R. at a hotel in Sebring. The father explained they went there to “start a family of our own, without the conflict” that the mother previously experienced with the grandparents. He testified that he sees a psychiatrist regularly for his prescription medication and was taking it during the incident. Officers were sent to perform a wellness check. One of the officers testified that the motel room was “clean and orderly,” with food, formula, diapers, two beds, and a crib. He felt there was “no immediate danger to the children and [the parents] had money.” DCF informed the officer that the mother had outstanding warrants, and he arrested her and DCF took the children into custody.

E.R. v. Dep’t of Children & Families, 143 So. 3d 1131, 1133 (Fla. 4th DCA 2014)

Everything was fine, so DCF made it not-fine and took the kids. Why would a DCF worker ever intentionally rip up a family like that? There are ways to handle a warrant that don’t involve arrest. If you wonder why families lie to DCF workers, hide children and injuries from them, and make it generally impossible, it’s because they have every reason in the world to doubt that anything good will come from cooperation, even though I know that there are good people in the system who really do want to help. We talk a lot about the general public’s impression of DCF’s incompetence, lack of funding, and mismanagement, but we should also give some thought to the reputation it has in the communities it is supposed to serve, and how that reputation puts children at risk. I have heard long-time case managers tell stories about people grabbing their children and running inside when “Charlie” gets out of her car. Given its goals and the compromised populations it works with, DCF should be the most user-friendly system in the world, to prevent any parent who wants help from ever being turned away. Instead, it’s unpredictable and unkind, and at times abusive itself.

We need more money, and more time, and more workers in the system who stay around longer. But we also need patience and empathy built right into its bones so that people come to us for help and not terrified at the chaos and uncertainty of what may happen to them. Magic wands don’t exist. We got here through our choices, and only different choices will get us someplace better.

Did DCF really try to TPR a woman for seeking custody of her child?

The First DCA reversed a TPR out of Duval County this week. The posture of the case is important:

In May 2011, DCF took the then two-year-old child into protective custody and placed him in foster care. In July 2011, the trial court adjudicated the child dependent. In April 2012, the trial court created a permanent guardianship, with the foster mother serving as the child’s permanent guardian, and terminated supervision by DCF. In September 2013, the mother filed a motion to reopen the dependency case, wherein she sought to regain custody of the child. At the hearing on the mother’s motion, DCF opposed the reopening of the case, the trial court inquired about the appropriateness of adoption, and the court granted the mother’s motion for the sole purpose of DCF filing a petition for termination of parental rights. DCF subsequently filed such petition on the grounds that the parents abandoned the child, the parents failed to complete the case plan, adoption was the least restrictive means to achieve permanency, and the termination was in the child’s manifest best interest.

Because of confidentiality rules, I take the facts in opinions as I find them. And it’s hard not to read those facts and see the immediate human toll that DCF’s lack of principled prosecution caused this family. And by family, I mean the mother, guardians, and child together. DCF agreed to close a case with permanent guardianship, presumably because grounds for TPR did not exist; then sixteen months later it opposed the reopening of the case; then it reversed course and filed for TPR, forcing the family through a trial; and then it reversed again and conceded error on appeal almost a year after that. I cannot imagine the sleepless nights and anxiety of wondering what would happen, all for nothing. 

If you want legalistic analysis, (jargon ahead) this is a classic Least Restrictive Means Doctrine case. The LRM Doctrine, formally speaking, is judicially derived from (Substantive) Due Process and requires (a) some showing of harm to the child and (b) that termination of the parent’s rights is the least extreme (“restrictive”) remedy available. That second prong has been whittled away in a number of cases involving the availability of relative placements (which I strongly disagree with on the policy basis that guardianships should be the second preferred permanency goal behind reunification because that’s how families outside of child welfare function when parents need help.) In practice, the LRM Doctrine provides a way for courts to preserve parental rights even when the technical elements of the statute have been met. LRM is more or less a constitutional equitable doctrine. LRM cases tend to involve the Department failing to work with a parent in good faith prior to seeking the termination of the parent’s rights or a parent for whom it just doesn’t seem fair to terminate their rights (yet).

The doctrine is also implemented, more irritatingly, as a strategy to avoid creating wider precedent on TPR grounds and to keep from wandering into the murky “manifest best interests” factors. As an equitable principle, it can almost always be framed as “on the facts of this case,” which limits its precedential value. That’s what appears to be happening here. The DCA could have reversed based on the child’s best interests (happy in the home, happy visiting the mother and sibling, no harm from the current arrangement, little benefit from TPR) or the fact that “irregular” visits by the mother do not constitute abandonment, especially when she was actually seeking custody when the TPR was filed. But those would have required parsing the facts too closely, a task that appellate courts often pretend they are loathe to do, and would encourage future hairsplitting on number of visits, degree of happiness, etc. LRM cases can have a good outcome without the burden of complicated analysis. The Court can point to the fact that the child is happy and safe, and the Department has see-sawed in its positions throughout the litigation. Therefore, “given the circumstances of this case,” TPR is not the least restrictive means to protect the child from harm.  Read: leave well enough alone and go home.