ICYMI: John Oliver on the American prison system — racist, stupid, and nothing but a business

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.

Incarcerated parents and the child welfare system

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. 

This TPR should be reversed, but it probably won’t be

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.

Prediction: PCA.

Third DCA to DCF: Not every injury requires state intervention

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.

Now Hiring: Attorneys for Children

Florida’s dependent children finally have attorneys, or at least some of them do. Governor Scott today signed into law House Bill 561, which creates section 39.0135, entitled Appointment of an attorney for a dependent child with certain special needs, for:

  1. children who reside in or are being considered for placement in a skilled nursing home,
  2. children who have been prescribed a psychotropic medication and do not assent to take it,
  3. children with a diagnosis of developmental disability (autism, intellectual disability, spina bifida, Prader Willi Syndrome, Down Syndrome, or cerebral palsy),
  4. children who are placed in or who are being considered for placement in residential treatment centers, and
  5. children who are victims of human trafficking.

The passage of the law is, by itself, spectacular. It had the public support of the Department of Children and Families, the Guardian ad Litem Program, and the existing pro bono children’s bar. It passed both chambers unanimously. And its implementation thus far has energized and mobilized the children’s bar to prepre to welcome and support new attorneys who will come into the practice starting July 1.

What is even more important, however, is that the law does not limit an attorney’s representation solely to the chapter 39 dependency proceedings. Instead, the attorney is to provide a “complete range of legal services” for the duration of the case, which has been interpreted by everyone I’ve talked to to mean full holistic representation. Therefore, an attorney with a client diagnosed with a developmental disability would be responsible for seeking services for that child from APD through administrative appeals and beyond. An attorney with a client in a skilled nursing home could challenge the lack of available alternatives under Olmstead. An attorney with a human trafficking client involving pornography could bring a restitution claim, or could seek civil action against organized crime involved in the child’s exploitation. If the client is being considered for a residential treatment center, the attorney might not only challenge the placement but hold the facility accountable to the myriad of state and federal regulations involving treatment of children in RTCs. In a typical dependency case, the lack of available substance abuse programs would be a class action, not a continuance.

Child representation in Florida just got real.

Inviting lawyers to work in child welfare may sound like a tough sell. But, I can imagine a child welfare system that is a hub for positive legal and social change, where innovative, justice-minded attorneys come together with families, social workers, and community members to disrupt and mend the public and private institutions that have abused, abandoned, and neglected the weakest children and families in our state. In that world we would expend less effort sorting families into permanency goals or keeping track of federal compliance measures, and instead focus our energies on punching out towards the things that are dragging family after family into our courts. Any Florida attorney who is interested in joining that fight, apply within.

Michigan Supreme Court Rules One-Parent Doctrine Unconstitutional

Take note Florida: The Michigan Supreme Court ruled that removing a child from an uncharged parent is unconstitutional.

We accordingly hold that due process requires a specific adjudication of a parent’s unfitness before the state can infringe the constitutionally protected parent-child relationship. In doing so, we announce no new constitutional right. Rather, we affirm that an old constitutional right—a parent’s right to control the care, custody, and control of his or her children—applies to everyone, which is the very nature of constitutional rights. Because the one-parent doctrine allows the court to deprive a parent of this fundamental right without any finding that he or she is unfit, it is an unconstitutional violation of the Due Process Clause of the Fourteenth Amendment.

In re Sanders, — N.W.2d —- (2014).

Florida has a similar one-parent doctrine. Once a child is adjudicated dependent based on the actions of one parent, both parents can be required to participate in services. An uncharged parent can obtain custody, but only if he or she passes a home study. Home studies are notoriously subject to interpretation by the person or agency conducting them, and can prevent a child from going to a home that the child would not have been removed from in the first place. For example, a child would not be removed for living in an apartment that is too small, but a home study could be negative on that basis and require the child to go to foster care.

Florida should take another look at its one-parent doctrine.

The Michigan opinion is an explicit validation of Professor Vivek Sankaran’s 2009 law review article Parens Patriae Run Amuck: The Child Welfare System’s Disregard for the Constitutional Rights of Non-Offending Parents. Put that one in the pile of law review articles that actually mattered.


ILSAC Meeting on Tuesday

ILSAC is meeting on Tuesday, June 3, in a webcast event. What a wonderful opportunity to express exactly how EFC has been going thus far.

Independent Living Services Advisory Council Meeting

Event Type: Public Meeting
Date/Time: Tuesday, June 3, 2014 - 13:00 to 16:00
Location: webcast event
1317 Winewood Blvd.
Tallahssee  Florida  32399

United States


The purpose of the meeting is for the Independent Living Services Advisory Council to conduct general Council business and continue their efforts for redesigning the Independent Living program and services.

For more details visit http://www.myflfamilies.com/service-programs/independent-living/20140603-ILACmtg

Pursuant to the provisions of the Americans with Disabilities Act, any person requiring special accommodations to participate in these meetings is asked to advise the agency at least 48 hours before the meeting by contacting:Becky Pengelley at Becky_Pengelley@dcf.state.fl.us.

Groups audience: