Today is Transgender Day of Remembrance, a yearly memorial to transgender people who lost their lives to violence. Reports of homicides of transgender people have increased over the last years as families and friends of trans victims refuse to allow their identities to be erased. This year in Florida we remember with sadness India Clarke from Tampa, Vanessa Santillan from Miami, and Kristina Reinwald from Miami.
It is therefore deeply meaningful that today the Florida Department of Children & Families published its latest draft of group home rules incorporating protections for trans and gay youth, so that foster youth in group care can live openly, safely, and without discrimination or fear in their own homes. The rules are the result of hard work and dedication by the LGBTQ Child Welfare Network, a group of advocates and good people at DCF and other agencies who are standing up for LGBTQ youth across the state.
If you would like to join the LGBTQ Child Welfare Network and get more information on advocacy efforts for Florida’s LGBTQ youth in out-of-home care, you can do so by clicking here.
The Fifth DCA addresses the question of whether an adoption subsidy can be used to reduce child support obligations. Short answer: no. Tluzek v. Tluzek, — So.3d —- (Fla. 5th DCA 2015).
The Fourth DCA affirms what appears to be an expedited termination of parental rights for medical neglect resulting in a child developing AIDS. C.S. v. DCF, — So.3d. —- (Fla. 3rd DCA 2015).
Last week, the Florida Supreme Court accepted two dependency cases for review. I’ll write more on both later, but here is a quick overview:
The first is O.I.C.L. v. Florida Department of Children and Families. This case involves a circuit split in how immigrant children are adjudicated dependent. Briefing should be complete by December 7, and oral argument will be February 2, 2016. The district court opinion is here.
The second is M.M. v. Florida Department of Children and Families. This case involves the ability of the court to close a case while limiting the visitation rights of a non-custodial parent. Briefing is due by December 8, 2015 and no oral argument is set. The district court opinion is here.
After approximately 23 months of sometimes intense debate, DCF’s administrative rules on Extended Foster Care will go into effect on Monday, November 2, 2015. They can be found here or by searching at http://www.flrules.gov. The final rules focus heavily on a youth’s admission and discharge from the program, including clarifying eligibility requirements and appeal procedures.
Many of the features I wanted to see in the rules did not make it, unsurprisingly. I am, however, glad the rules are done, and congratulate the folks who wrote them under stress from the many conflicting demands of both the powerful and the loud.
The posture of this case is complicated by previous appeals and the fact that the multiple children are differently situated. But here’s the gist: the Department brought a TPR petition against the mother and failed to prove the case. Florida law permits a judge to make a finding of dependency at the end of a TPR trial instead of granting the TPR. That wasn’t requested by the Department nor done by the judge; instead, the judge dismissed the petition. The Department then brought a new dependency petition alleging the same facts. The judge granted the dependency. The mother’s argument is that the Department is barred (collaterally estopped) from bringing the same arguments again and again until they get a win. The panel sounds sympathetic to the claim.
Florida has a history of weakening procedural protections for parents in child welfare cases in the name of protecting the child. The unintended consequence of this trend is the deterioration of the adversarial truth-finding process–the Department need not investigate very well or litigate very well if they know they will get a do-over in the rare case where an appeal is successful. The result is that the Department’s effort can be rationed to cases where courts push back, but parents have to spend significantly more time litigating technicalities and the court has to spend significantly more resources undoing or explaining away the procedural knots caused by “feeble” (to use the word from the oral argument) litigation of the Department. Though it may seem counter-intuitive, holding the Department more accountable to procedural rules is likely to result in better outcomes for children by raising the level of practice overall. Fortunately for this particular child, comments by the panel seem to indicate that the mother is actually participating in services and doing well–therefore the Trolley Problem of child welfare appeals (whether to trade this child’s immediate safety for future children’s well-being) is off the table and the court is free to rule in a way to guide future behavior without fear of current harm.
Edit: Sounding sympathetic does not always lead to a win. The case was PCA’d.
I admit that I enjoyed watching three very smart judges try to untangle what happens when you close a dependency case over an objection without a full hearing.