Fourth DCA splits kids of father who has two years left in jail

The Fourth DCA issued an opinion yesterday that troubles me. The case involves the father of three children. Because of the mother’s drug use, the oldest and youngest of his kids were placed with an aunt. The middle child was placed in foster care. Unsurprisingly, the father was able to maintain contact and a relationship with the relative-placement kids, but was only able to speak to the child in foster care twice, despite calling regularly. The Fourth reversed the TPR as to the two kids with whom he was able to maintain a relationship, and affirmed as to the child in foster care.

The TPR ground was Florida Statute 39.806(1)(d), which permits the termination of a parent’s rights if

1. The period of time for which the parent is expected to be incarcerated will constitute a significant portion of the child’s minority. When determining whether the period of time is significant, the court shall consider the child’s age and the child’s need for a permanent and stable home. The period of time begins on the date that the parent enters into incarceration.

The Fourth points out that a previous version of this ground focused solely on the length of time of incarceration as a percentage of the child’s remaining childhood. The current version looks at the substantive effect of the incarceration on the child. This substantive analysis leads to this result:

As to P.S., the state proved by clear and convincing evidence that the child is thriving in his foster family’s care and does not wish to see his father. The father has not been able to maintain much contact with P.S. Thus, the father’s incarceration has been significant in that P.S., at a young age, has become bonded with the foster family to the exclusion of D.S. The foster parents wish to adopt P.S. To deprive him of this continuing relationship with his foster parents would prevent him from achieving a permanent and stable home. Thus, the court’s conclusion that the state proved a ground for termination is supported by competent substantial evidence. Moreover, for these same reasons, we conclude that termination was both in the manifest best interest and least restrictive means to prevent harm to P.S.
As to D.S., Jr. and K.S., the state has not proved this ground for termination. The children reside in a stable home with D.S.’s sister, their aunt. They are not in the custody of the Department or in foster care but in the care of a relative. Thus, to leave them in this placement would not allow them to languish in foster care. D.S. has maintained as close a relationship as his incarceration has allowed him to maintain with the children, and D.S ., Jr., in particular. While the children are bonded to the aunt and uncle, they still know that D.S. is their father and have regular interaction with him, including regular phone calls, letters, and visits. When D.S. is released from prison, D.S., Jr. will be eleven and K.S. will be six. Because they are with relatives, they will still be in contact with their present caregivers even when D.S. is reunited with the children.
D.S. v. Dep’t of Children & Families, No. 4D14-3144, 2015 WL 1810315, at *5 (Fla. Dist. Ct. App. Apr. 22, 2015)

It’s the same father, the same amount of time in jail, and the same efforts to maintain a relationship with all three children. The only difference were the placements, both of which were good, and the fact that one answered the phone when he called, and the other did not. I have difficulty seeing how this is the correct legal result.

The Fourth DCA over the last ten years has adopted a very substantive review of terminations of parental rights. The Fourth looks closely at the quality of the relationship between the parent and child, and what level of harm the parent poses to the child. In this particular case, the Fourth sees the positive relationship between the children and father as barring a TPR. The Fourth also lambastes the guardian ad litem and Department’s witnesses for basing their positions on conclusory determinations that the children placed with the aunt “need permanency.”

But that is exactly what the Fourth then does for the child in foster care. There is notably nothing in the opinion that suggests the child will be harmed by waiting for the father to get out of jail; and nothing that says that the foster parents would kick the child out of their home if they could not adopt. The facts appear to be only that the child is happy there and they are willing to adopt.

This case raises all sorts of constitutional questions. Under Equal Protection, a child with a parent who does “everything right” (which this one presumably did, because his TPR was reversed as to two children) should not be subject to permanent separation from his family based on the type of placement that he found himself in.  Under our Due Process jurisprudence it is hard to understand what harm the termination of the father’s rights protects the middle child from. If it is the harm of waiting to reestablish a relationship with his father, then TPR only exacerbates that by requiring the child to now wait until he is 18. And no consideration of the harm from being separated from his siblings appears to have been given at all, though presumably it was a factor considered in the manifest best interests findings. If the TPR is meant to protect the child from the harm of not having “permanency” there’s nothing in the opinion that suggests this was a concern of the child at all–permanency is usually more a concern of the system, which seeks to close cases sooner rather than later, than it is for the affected kids. The guardian ad litem spoke for the child’s best interests, but the same GAL was taken to task for a lack of sufficient investigation as to the other two children.

It appears to me that the key to this case was not harm posed to the child from the parent but the prospect of a better life offered by the foster parent. Any person in jail is now subject to TPR if their child is living with someone else. This isn’t consistent with our due process jurisprudence, and hearkens back to a day when TPRs were based solely on best interests. That is not a road we want to go back down.

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.