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.
This segment was serendipitous timing for the two incarceration opinions that I wrote about earlier this week. Watch it and then argue that a TPR ground based on length of incarceration should exist at all.
I lost my legal innocence in law school on the day I learned that there is a private prison industry, that it has lobbyists, and that those lobbyists actively seek and successfully obtain stricter sentencing laws to keep more people incarcerated longer. We, as law students, then study the doctrines derived from those systems as though they were natural facts or logically required outcomes. They aren’t. Says John Oliver, “Just think about that: we now need adorable singing puppets to explain prison to children in the same way they explain number 7 or what the moon is.” Except the moon isn’t a horrible choice some people have made to hurt other people for profit. Unlike the moon, it’s also something we can change.
The Second and the Fifth courts of appeal recently issued opinions involving incarcerated parents. In the Fifth’s case, a child was adjudicated dependent and the disposition order forbade any contact between the incarcerated father and the child. In the Second’s case, a mother petitioned to terminate the rights of an incarcerated father. In both cases, the courts of appeal reversed the decisions of the trial courts.
Incarcerated parents cause a lot of consternation for the child welfare system. So much so that there are three separate grounds for terminating the rights of an incarcerated parent: (1) when the parent will be in jail for a substantial period of time, (2) when the parent is in jail for certain types of crimes, or (3) when the court determines that TPR is in the child’s best interest. It should be noted that this originally required a showing of all three, but the “and” was changed to an “or” in 1999. This change created the only “best interests” TPR ground in Florida law. All other TPR grounds require a showing of some overt act or failure to act by the parent prior to the court considering the child’s best interests. When a parent is in jail, the child’s best interests alone can be the deciding factor, even when the reason and length of time the parent is in jail is unrelated to parenting or children (think tax evasion, lobstering out of season, civil disobedience, politically biased sentencing laws). The usual response is that getting arrested and convicted is the overt harmful act, but consider all the analogs to the alleged harm posed to children from a parents’ incarceration that we wouldn’t consider TPR appropriate for: hospitalization, living or working far away from the home, military service. It appears we’re doubling down on a disparate impact phenomenon instead of actually assessing harm.
Professor Anthony C. Musto has recently argued, in Up the Slippery Slope: The Need to Advise Criminal Defendants that Their Pleas Can Lead to Termination of Their Parental Rights, that failure of an attorney to advise a defendant of the risks of TPR should be ineffective assistance of counsel similar to failure to advise about immigration consequences. And many legal and social work scholars have argued that we should be promoting and supporting family connections during incarceration as part of the rehabilitative process. Isolating parents from their families and communities during incarceration increases the risk of recidivism upon release, which the negatively affects the families and communities the parents came from and return to.
Finally, the argument is often made that jails are simply no place for children. The fact that visiting a parent in a prison waiting area is not in the child’s best interests demands a change to the waiting area and conditions of confinement, not a termination of parental rights. DCF and DOC have some work to do. Both of the Florida cases listed above dealt with this fact: in one case the mother allegedly kept the child away from the incarcerated father, in the other case the state attempted to do the same. Both decisions were rightly looked upon with scrutiny.
It’s Friday and there’s not much to say on this one. Mr. Joyce (for the mother) is right that the Three or More Removals TPR ground in Section 39.806(1)(l) is almost blatantly unconstitutional without some saving nexus construction, but the argument wasn’t preserved below in this case and it sounds like there were other grounds available to TPR the mother. Even though there might be technical arguments about sufficiency of the evidence and reliance on judicially noticed documents, it doesn’t sound like anyone on the bench is willing to bend over backwards to preserve this mother’s rights.
I note that the State’s argument was repeatedly that “this mother chose cocaine over her child.” I also note that there are a lot of chronic illnesses that cause parents to be out of the home periodically that nobody would consider TPR’ing a parent for. Substance dependency among poor people who don’t have the resources to minimize the harm to their families is not on that list.
This post continues a look at legal doctrines, as opposed to pure administrative incompetence, that limit the State’s ability to intervene in families’ lives due to suspected abuse, abandonment or neglect. Thus far, since the publication of Innocent’s Lost by the Miami Herald, we have seen the Second DCA (Lakeland) refuse application of the Imminent Risk doctrine, and the Fourth DCA (West Palm Beach) do the same with the Sibling Nexus Doctrine. Yesterday, the Third DCA (Miami) took its turn at yet another risk prediction heuristic: the Unknown Perpetrator Doctrine.
At its strictest the Unknown Perpetrator Doctrine in dependency cases states that, if a child is egregiously abused while in the exclusive custody of the parents, the Court can find the child abused even if the State cannot prove which parent committed the act. The doctrine derives from the language of the Egregious Abuse ground for termination of parental rights, which says that the parent is at fault if he or she either inflicted the abuse or knowingly failed to prevent it, and from the concept of circumstantial evidence. If the injuries were severe and obvious and only the two parents had access to the child, one of them inflicted and the other failed to protect. It is irrelevant under the statute which parent did which.
The Unknown Perpetrator Doctrine begins to unravel when you add in third parties. The access to the child by third parties–such as relatives, day care workers, or people at a park–during the time frame of the injuries has in some cases caused courts to reverse TPRs on the basis that you can no longer say that each parent falls into one of the two fault-worthy roles. The Doctrine also loses strength in TPR cases when the injuries themselves are not obvious.
In the Third DCA’s case yesterday, the 11-month-old child had two bruises and a loopmark after a weekend with the father. Numerous people had access to the child during that time, and there was no evidence presented (or at least no facts recited in the opinion) that the father did or failed to do anything in particular. The evidence was limited to the injuries to the child plus the fact that the child was in the father’s custody for the weekend.
The Third DCA reversed:
Based on the definition of “harm,” there is substantial, competent evidence that H.C.(2) was harmed, as it is undisputed that she not only had significant bruises, but she also had a “loop mark” that is consistent with being hit with an instrument such as an electrical cord or a belt. However, the record is completely devoid of any evidence that the Father caused H.C.(2)’s injuries, allowed anyone else to inflict H.C.(2)’s injuries, or has ever hit or physically disciplined H.C.(2) or H.C.(1). Moreover, during the weekend, H.C. (2) was exposed to numerous individuals besides the Father and the Mother, including the Father’s then-wife, her two children, the maternal grandmother, and several of H.C.(2)’s cousins. Thus, the Department failed to establish by a preponderance of the evidence that the Father inflicted or allowed someone else to inflict these injuries on H.C.(2). We therefore reverse the order adjudicating the Children dependent as to the Father.
These injuries are not legally considered “egregious.” And notably the opinion does not even mention the line of cases that favorably apply the Unknown Perpetrator Doctrine to egregious abuse TPRs. Instead, Judge Rothenberg looks only at the dependency statute and finds that it requires proof of a willful act by the parent. In a situation where the injury was not obvious and the parent did not have exclusive access to the child, there is not even circumstantial proof of a willful act.
At first this feels wrong, because a loop mark is obviously inflicted by a human. But we don’t know if that loop was done by a parent, an adult relative, or just kids at the park using a jump rope as a helicopter. Child welfare policy is the constant struggle between our desire to protect (certain) children and our concept of ordered liberty in which families are entrusted to care for them first. Based on the evidence, this child needed an ice pack and a maybe a band aid. If the Department could prove this child was at prospective risk of harm, I have to assume it would have. The Unidentified Perpetrator Doctrine only makes sense when limited to the most extreme cases of injury, or else it risks elevating every mysterious bruise or scratch into a basis for state intervention. We don’t have enough foster homes in the world for that.