Another PCA on how to close a case

This one is very technical, too. The court terminated supervision and left the child with an uncharged father. Mr. Colbert argues that the court should have weighed the child’s best interest in determining whether to close the case. (The trial judge apparently said on the record that it would be in the child’s best interest to keep the case open, probably so that the child could receive services from the Department.) Says the Department: “Dependency is not meant to continue forever when the child is with a parent who can take care of the child.”

The Third’s questions suggest that it believes the mother can reopen the case whenever she wishes and therefore there’s no harm to her rights here. Mr. Colbert points out that the standards in family court and the lack of services from the Department make the situations not entirely equitable.

The Third PCA’s.

Post-blogging a case on violations of withholds.

I’m a little behind in my video posting. This appeal is very technical. Kevin Colbert is arguing on behalf of a mother who received a withhold of adjudication. At some later time, she was found intoxicated (without the child present). The court violated the withhold and entered an adjudication and removed the child(ren) from her custody. Mr. Colbert argues that there should be a requirement that there be some nexus between the alleged non-compliance with the case plan and risk of harm to the child. He points out that case plans have numerous tasks in them–like find a job or learn English–that are not reasonably related to child safety.

Judge Emas suggests that unreasonable case plan tasks should be objected to at disposition, not at the violation hearing. I have the benefit of knowing that the case was PCA’d. It probably didn’t help that being found intoxicated certainly sounds like the type of thing that would put a child at risk, unlike “failing to learn English.” If a case comes up where a withhold is violated because of a truly non-sensical or ancillary task, the court will have to look much more closely at this practice.

Third DCA reverses judge on caregiver funds, caregivers still win

The Third DCA issued a reminder yesterday that dependency court judges can’t do just anything in the best interest of a child. The case involved DCF’s obligation to provide financial support to people who take custody of children they’re related to. This helps support kids in their families, instead of placing them out with strangers. This is where it gets technical. There is a statute instructing DCF to come up with rules on how it will pay out the funds. DCF created the rules, which limited the funds to certain classes of relatives. The dependency judge did not believe DCF’s rules were consistent with the statute–specifically they were too narrow in who they considered eligible–and the judge held that the the rules were invalid.

The Third DCA says that trial judges can do this, but only if the agency’s rule is clearly based on no statute at all. This DCF rule was based on a statute. Therefore the proper course of action, says the Third, would be for the relative to file an administrative complaint through the Administrative Procedures Act, not file a motion for review in the dependency court. With an APA complaint, you get a hearing in front of a hearing officer who is an employee of DCF, and the resolution can take several months. With the judge, you obviously get a much faster order.

There’s an interesting side story to the disagreement about the scope of the caregiver program. Last legislative session this judge and this issue (may have even been this case) were part of the inspiration for the Legislature to expand the Relative Caregiver Program to a wider class of relatives and even nonrelatives who are caring for a dependent child. Therefore no families were harmed in the issuance of this reversal.

Florida Supreme Court Hears Arguments on Ineffective Assistance of Counsel

iac argument

(Oral argument here. Previous posts here and here.)

When I watch this argument I see a traumatized court. Death penalty litigation, where the Strickland standard developed, is hard on everyone involved. And while termination of parental rights is often called the “death penalty of family law,” it has certainly never been given anywhere near the same level of due process or scrutiny. Consider for a moment that a final judgment of termination can be entered against you for failure to appear at your arraignment and then again for failure to appear at your trial. The death penalty cannot be entered by default. Imagine a person being sentenced to death because they could not find a ride to court on one day out of years of proceedings. That is obviously ridiculous. It’s equally ridiculous in termination cases.

But that is an aside. The questions I heard from the bench were about implementation and how to avoid all of the problems that Strickland seems to invite. Justice Pariente worried it will encourage nitpicking, but the ill seems to be the risk of interminable litigation and not the scrutiny itself. Everyone therefore appeared to agree that the time frames must be limited. Beyond that, it’s hard to predict what rules would avoid the problems we have today without creating new problems tomorrow. Justice Lewis, for example, raised the potential problem of the State and parent both having to waive privilege in the middle of pending litigation. This seems important: it’s hard to say how a parent would raise effective assistance if the parent had no access to whatever skeletons the state was hiding.

The procedural issues are actually quite puzzling. That doesn’t mean we should have no procedures at all. It’s clear that we need guidance on what the floor is for effective representation, but we also need funding and support to raise everyone so far above the floor that we rarely have to worry about hitting it. That’s why our clinic filed an amicus brief with Florida’s Children First, arguing that improving the quality of parents’ lawyers early in cases can help us get kids home sooner and safer, and be more sure that when children aren’t reunified it was because of safety and not because the system was too complicated or difficult for their parents to navigate.

One legal note of interest: several justices identified the ex post review that Strickland requires as an evil of the standard. Under Strickland, the court must, long after the trial has conclude, go back and review the record to determine if everyone behaved correctly. What was interesting to me was that the Least Restrictive Means analysis that has evolved in child welfare law contains the exact same flaw. Under LRM, the Court must go back and determine if DCF made a good faith effort to rehabilitate the parent, sometimes years after the case started. Because we do ex post review already, adding an effectiveness hearing after the trial would only serve to recognize the defense attorney’s role in ensuring that good faith effort by the state. Of course when 95% of parents rely on appointed counsel and state-funded services, budget cuts are a far more persistent threat to due process than sleepy attorneys.

An easy guide to new things you can and cannot do in 2015

The future can be a confusing place. I’ll try to make it a little easier to navigate. 

Things you CAN do

Have an evidentiary hearing on whether your administrative action notice actually arrived to you.

Get married in Florida irrespective of your gender. 

Things you CANNOT do

Represent yourself in a dependency matter unless you waive counsel knowingly and voluntarily.

Have DCF pay a pro bono attorney’s travel expenses as a therapeutic service for a child.

Be forced to submit to a pregnancy test in a dependency proceeding without notice and a chance to respond.

Things that are still a mess

The procedures for private adoptions in the middle of dependency cases.

Federal suit against Hillsborough child welfare employees allowed to go forward

A federal judge ruled this month that a lawsuit involving the 2012 death of Marie Freyre can go forward, denying various child welfare employees’ motions to dismiss. Judge James Whittemore (Tampa) ruled on December 5 that the mother stated valid claims that the child welfare employees violated her rights under the Americans with Disabilities Act, the Rehabilitation act, section 1983 for violation of her right to care for her daughter, and most surprisingly under section 1985 for conspiracy to violate her constitutional rights. (Note: I was unable to find a public copy of the order online.)

The mother alleges that in April of 2012, the defendants discriminated against her on the basis of her disabilities, failed to implement in-home services that would have allowed reunification, moved her child 250 miles away to Miami without her consent, and prevented her access to her daughter during the trip to Miami in violation of a court order. The child, Marie Freyre, died within 12 hours of her arrival in Miami.

Two things stand out in this order.

First is the survival of the section 1985 conspiracy claims. A 1985 claim requires “(1) a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; and (3) an act in furtherance of the conspiracy; (4) whereby a person is either injured in his person or property or deprived of any right or privilege of a citizen of the United States .” The conspiracy here was based upon staffings, communications, and joint actions taken by various professionals involved in the case, including administrators, CPIs, and State Attorneys. The defendants tried to raise their defenses early, that they were only trying to protect the child’s well-being. The judge left those arguments for a later date:

Taking Freyre’s well-pleaded allegations as true, as they must be at this stage of the case, she sufficiently alleges a class-based discriminatory animus behind Defendants’ actions. While Defendants argue they were not motivated by animus, but by a concern for M.A.F.’s well-being, the only question is whether Freyre’s allegations are sufficient to state a claim under § 1985(3). Freyre has alleged “assertedly benign (though objectively invidious) discrimination” against parents with disabilities resulting in the separation of her family, which is sufficient to state a claim. See Bray v. Alexandria Women’s Health Clinic, 506 U.S.263, 269, 113 S.Ct. 753, 122 L.Ed.2d 34 (1993). 11 11 This determination should not be construed as a comment on the merits of Freyre’s claim.

Defendants further argue that the animus Freyre alleges is directed not at the disabled as a class, but only at physically handicapped parents who are unable to care for their children. Defendants’ attempt to narrow Freyre’s claim is unavailing. As a disabled parent, Freyre states a claim when she alleges a conspiracy by state actors to deny her custody, visitation, and reunification with her child based solely on her disability. See Fitzpatrick v. Town of Falmouth, 321 F.Supp. 119, 124 (D.Me.2004) (allegations of conspiracy between school administrators and town to deny autistic home-schooled child access to public school playground sufficient to overcome motion to dismiss).

Second is the survival of the ADA and RA claims. Freyre alleges that the State discriminated against her as a parent due to her inability to lift the child, sending the child to Miami instead of providing support in her home to help her with daily care.

Freyre has sufficiently alleged at least “indirect” harm flowing from the actions of each Institutional Defendant to satisfy the traceability requirement. For HKI, Freyre alleges that it ceased attempting to find 24–hour care for M.A.F. despite a court order, relying on a statement from Nurse Emerson that HKI knew was false. (Dkt. 71 ¶¶ 50, 54–58). Freyre also alleges that HKI facilitated M.A.F.’s placement and transfer to the nursing home in Miami. (Id. ¶¶ 71–72, 76, 86). While these actions may have only “indirectly” led to M.A.F.’s death, no more is required to satisfy the traceability requirement. Focus on the Family, 344 F.3d at 1273.

The vast majority of cases in child welfare are due to parents’ poverty, substance abuse, or some mental or emotional disability. Current child welfare doctrine requires only “reasonable efforts” by the State to help a parent “remedy the circumstances” that brought the case in. That vague standard creates a race toward the bottom, in that “reasonable” is not defined and in practice becomes “whatever we normally do on cases like these.” The standard also sets the complete end of state intervention (through DCF) as the measure of success, and creates a ground for termination of parental rights if state intervention cannot be ended within a year. Incorporating ADA and RA doctrines into that system could create stronger individual accommodation requirements by the state as a whole and take some of the (often unreasonable) burdens off of impoverished and disabled parents.  The conspiracy doctrines discussed above could  demand responsibility from other state agencies (DCF+APD+ACHA+…) to more actively support families at risk of losing their children due to disability, poverty, or other factors outside of their control and within the orbit of the supporting agencies.

At this stage of the litigation the facts alleged by the plaintiff are assumed to be true while legal issues are debated. Defenses based on whether the acts of removing the child from the home or placing the child in Miami were reasonable or justified are left for later hearings, and the ultimate fate of Judge Whittemore’s legal opinions are unknown until the inevitable appeals play out.