Fifth DCA essentially declines to follow Florida Supreme Court on ineffective assistance of counsel

The opinion boils down to this:

Florida Supreme Court: Trial judges must orally advise a parent of their right to file a motion alleging ineffective assistance of counsel after a TPR trial.

Mother: The trial judge didn’t advise me, and my trial counsel (who I tried to fire halfway through the trial) didn’t say anything either. Not even my appellate counsel filed anything until the initial brief.

DCF: Yeah, she’s right.

Fifth DCA: ¯\_(ツ)_/¯

The Fifth District doesn’t offer any legal reason that it can decline to follow the Florida Supreme Court’s clear procedure. The Fifth District points to the length of time the child has been in care as a determinative factor, but it’s unclear what that has to do with ineffective assistance of counsel at a TPR trial. A parent’s right to fair treatment does not depend on when the Department decides to file a TPR petition.

The Fifth also blames the mother’s appellate counsel for not filing a motion to relinquish jurisdiction prior to the briefing. The Fifth District did not need to wait for a motion. The notice of appeal was filed on December 21, 2015. Assuming that the briefing schedule was exactly on time, the initial brief was due within 70 days, or February 29, 2016. The Fifth would then be on notice that the mother was raising an argument based on ineffectiveness and could have relinquished jurisdiction on its own. The answer brief would be due in 20 days later, and a reply brief would be due 20 days after that, Monday April 11, 2016 — also known as 25 days after the Fifth’s opinion was rendered. Under the Florida Supreme Court’s interim rules, the trial court has 25 days to render an opinion on an ineffective assistance claim.

The Fifth therefore could have relinquished jurisdiction for the trial court to hold the hearing and finished this appeal exactly within the time-frames that the appellate rules contemplated an appeal taking. Probably sooner, because at that point the opinion would be a PCA — no written opinion necessary. Given that the mother was 18 years old and the child less than 2, waiting two extra weeks does not seem particularly egregious to make sure nothing went wrong. More time than that is routinely lost in putting together transcripts or giving an attorney an extension because they are out for vacation.

It probably wasn’t clear how an appellate attorney should handle the situation of a parent who didn’t get proper notice in the trial court. The next parent’s attorney who fails to file a motion to relinquish, however, should face ineffective assistance charges or worse. The same goes to the DCF attorneys who watched it happened without filing their own motion, and the judges who stood by and ran out the clock.

Miami’s foster children are going missing at historically high rates. Why?

There has been a lot of discussion in Miami lately about the appropriate response to kids who run away from foster care. The perception here is that foster kids are running away more often. I wondered if that was true, so I checked the Department of Children and Families’ Child Welfare Services Trend Report (January 2016). A few caveats about the numbers, which I present below. The CWST Report counts a child as “runaway/absconded/abducted” if they’ve left the placement without permission and their whereabouts are not known on the last day of the month. This seems to under-count by excluding kids who run away for short periods of time, unless those periods cross a month boundary. The report does not break down missing youth by age, sex, or other demographics (but DCF’s Missing Child List suggests that most missing foster children are teenagers). Nor does it tell us why a youth left, where they went, or how long they were missing.

The question being raised in Miami is whether children in the foster care system can be judicially ordered to not run away, and then held in secure detention for contempt if they don’t comply. Florida statutes and the Florida Supreme Court are clear that dependent youth cannot be placed in secure detention for contempt; moreover, running away, in and of itself, is not a criminal offense in Florida. Police are required to return children to their custodians in their role as so-called “community caretaker.” If the child is a habitual run-away, then the family can be referred for services. This program does not apply to children in foster care, who already receive services.

I checked DCF’s procedures on run-away youth. The Department’s operating procedures require the case manager to request court and law enforcement help to return the child if located. I was happy to see that the operating procedures also state that “When the child returns, the child must hear and see statements of concern regarding the child’s safety and well-being from the adults who have significant relations with the child.” I have seen adults respond with anger and frustration when youth run away, or adults who seek to punish the youth for running instead of exploring the cause and purpose.

I certainly understand the frustrations motivating people seeking to reduce the number of missing youth. The numbers discussed below substantiate the perception that kids are running away at high rates: Miami has a rate of missing kids that is four times the lowest Florida regions. We should be asking why that is. Running away is not inherently a form of mis-behavior. Running away can be a developmentally appropriate behavioral response to stressors and problems that need to be addressed in the home or the child’s life. It can also be a safer alternative to an abusive or neglectful home, especially if adults charged with protecting the youth are not responsive to complaints. Commanding or ordering a child to not run away without addressing those underlying problems is equivalent to ordering a child not to cry.

Based on my own experience, threatening foster youth with incarceration also has the counterproductive effect of undermining the child’s trust and belief in the fairness of the system, thus making the desire to run away even stronger. It also has the negative consequence of normalizing the idea of incarceration, i.e., “the judge is going to throw me in jail anyway, so I may as well do X.” Foster youth are already at significantly higher risk of juvenile justice involvement. Secure detention would only exacerbate that risk.

The numbers below suggest that the current missing child rate is a symptom of something going very wrong. We need more information about why these kids are running and how to address their needs. Now for the numbers.

Missing children over time

Since 2003, there has been a very large variation in the number of children listed as missing in the CWST Report. The peak occurred in June 2007 with 470 missing children statewide. I checked that against the number of kids in out-of-home care that month: 17.5 kids per 1000 kids in out-of-home care were missing.

Statewide over time.png

This peak appears to have gone largely unnoticed and un-commented upon. A search of Google News for that time period turned up nothing. A chart in a DCF training bulletin from January 2007 listed the missing child rate at 1.67% with no mention that this was nearly double the rate from just four years prior.

In the next chart, you can see that not all DCF regions had equal numbers of missing kids. The Suncoast Region has the highest number of missing children in 2007, but all regions were slightly up that year.

Regions over time

When these numbers are viewed as a percentage of kids in out-of-home care, though, a different picture emerges. Remember from previous posts that the Southern Region (Miami & the Keys) has historically had relatively fewer kids in out-of-home care than other regions. In January 2016, for example, the Southern Region had 1,999 children in out-of-home care, compared to 6,234 children in the Suncoast Region (Tampa, St. Petersburg).

Regions per 1000.png

Viewing the rate of missing kids as a percentage of kids in out-of-home care, the Southern Region has four times the rate of missing children as the region with the lowest rate. The historical statewide high was 17.5 missing children per 1,000 in 2007. The Southern Region has hit 30 missing kids per 1,000 twice. Moreover the Southern Regions’ rate appears to have grown since 2014 and is currently hovering around 20 per 1,000. Other regions are currently averaging 5-7 per 1,000.

What is going on? With this data I can offer only theories. One theory could be that the expansion of out-of-home care numbers has led to an increase in the number of missing kids. The graphs below show the number of missing kids versus the out-of-home care population. You can see that the rise in missing kids is partially a product of the rise in out-of-home care population. As the population goes us, the number of missing kids does go up. But the differences in the slopes and differences among regions suggest that more is going on in the South than just additional kids coming into care.

Another theory could be that the missing child rate is an indicator of system instability. Miami has experienced a lot of changes over the last 4 years, including the closing of several case management agencies and a restructuring of its placement system. Even among agencies that have remained open, the case manager turnover rate has been high. That upheaval has not been easy on anyone, most especially the kids. It could be that the missing kids aren’t running away from “care” as much as running to find care somewhere they believe will be more stable. Without more information from the youth themselves, it is very difficult to say.

Seasonal Factors

Foster kids don’t go missing at equal rates throughout the year. Statewide missing child numbers tend to seasonally increase 7.5% in June and then decrease 6.6% in September. I suspect these are summer runners who return to school, and thus to their placements, in the Fall. There’s a similar spike of 4.1% in December, with a dip of 2.8% in January when school is back in session. These are likely unsanctioned holiday visits.

Breaking up the numbers shows some regional differences. Every region experiences the back-to-school dip in recovered kids. Interestingly, however, the Northwest Region (Pensacola, Tallahassee) doesn’t have a pronounced summer spike. It does, however, have a very large increase — 20.5% — during the winter holidays. The Central Region, on the other hand, has a significantly smaller increase in missing kids over the winter holidays. This might suggest the need to look at how the Home for the Holidays program is being implemented in these regions to see if that is affecting the number of missing kids.

The numbers in context

If you know your region is experiencing a missing child crisis, what do you do? A 2011 study from the Urban Institute and Chapin Hall (which I will paraphrase liberally for the next three paragraphs) found that the reason kids run away from foster care falls into two basic categories: (1) wanting to be with family and friends and (2) disliking their placement. After a runaway episode, most youth return to care voluntarily. The reasons for returning included wanting to be back at their home, wanting to go to school, and avoiding getting themselves or others in trouble.

The majority of youth in the Chapin Hall study ran away to a friend’s home, including boyfriends and girlfriends; and about one-third spent their first night at a relative’s home. Only three youth reported spending any time of their most recent episode in an outside location such as a park or an abandoned building. As a result, these youth do not seek services while they are on the run from a placement.

Consequently, foster youth are often less sophisticated in terms of street knowledge. Youth who run away from foster care have more knowledge of services available than high school aged youth in general, but youth with foster care experience generally had similar or less knowledge than other runaway youth. In particular, youth in the study’s foster care sample had less knowledge of services that typically comes from street experience including free meals, drop-in centers, street outreach and free showers. The biggest barrier to foster youth seeking services while on the run is that they believe they will be turned in, either directly to the Department or to the police.

The National Runaway Safeline’s has a forum dedicated to youth who run away from foster care. Posts from youth in the forum mirror many of these sentiments.

The Chapin Hall study’s review of literature also found the following:

  • Females are more likely to run away than males.
  • Runaway behavior is not linked to a particular race or ethnicity.
  • Runaways tend to have more school problems, higher rates of suicidal ideation, more reported behavioral problems; and more alcohol, substance abuse, and mental health disorders.
  • Foster youth are more likely to run away the first time if they entered care due to lack of supervision and less likely if they entered due to sexual abuse or physical abuse.
  • The more placements they have, the more likely youth are to run.
  • Youth in group homes or residential facilities more likely to run away than youth in foster homes; youth placed with relatives are least likely to run away.
  • Length of time in care does not necessarily predict runaway; in fact, the older the youth is when entering care, the more likely they are to run away.

There’s no reason to believe that securely detaining kids for running away is a productive intervention strategy, and it may have unforeseen consequences if children remain in unsafe placements or remain on run in an unsafe situation out of fear of incarceration. There are evidence-based intervention models that could be implemented as alternatives to secure detention: researchers at The University of South Florida published a 2008 study on approaches to intervening in runaway behavior. The study found that a functional behavioral approach was significantly more successful than “services as usual.” The Child Welfare Information Gateway has a collection of resources on running away.

Whatever is going on in the Southern Region does not appear universal or unavoidable. We need to figure out why these kids are leaving at such high rates — and we must welcome them back warmly and with concern, so that they never have to think twice about reaching out for help.

We don’t know enough about peer violence in foster homes

An article this month in Child & Family Social Work looks at the scant amount of research on peer violence in foster homes.

Whilst evidence on peer abuse in residential settings is limited even less is known regarding peer abuse in foster care. Although no specific research has been undertaken, work by some (e.g. Farmer & Pollock 1998) indicates the issue of peer abuse is as salient in these settings as in the residential context. Many of the specific dynamics associated with abuse in residential settings, including peer cultures, are either absent or very different in relation to foster care placements. The populations of children in foster and residential care also vary considerably by age and care histories. In addition, the ‘family’ situation of foster care holds unique characteristics and risk factors not present in residence. The relative isolation of young people in foster care from other looked-after children means that the nature of peer abuse may be different. These differences highlight the importance of considering the distinctiveness of peer violence experiences in foster care. In addition, foster families’ own children may be vulnerable to victimization from looked-after children (Höjer et al. 2013). The manifestation and experiences of peer violence in foster care are particularly relevant within a policy context that favours family-based care and a resulting reduction in the use of residential care since the 1970s (Berridge et al. 2012).

We know, because our clients tell us, that peer violence happens too frequently in foster homes. Violence often goes unreported by children and youth for a wide range of reasons, including fear of not being believed, fear of retaliation, and fear of placement disruption to a potentially worse situation. Some foster parents likewise fail to seek help for peer violence in their homes for fear of losing their license or being perceived as unable to care for children appropriately. The result is a culture that minimizes problems for the sake of preserving appearances, until the problems are too egregious to ignore.

The article offers several policy implications:

  • There should be a focus on identifying children and young people who are or have been involved in negative peer interactions including ways of reporting that are accessible by young people. This identification should lead to appropriate responses and support for these young people.
  • The careful placement and supervision of the instigators of peer violence in foster care is required as there may be risks posed to other children and young people in the placement and to placement stability.
  • Placements of children and young people who have instigated peer violence need to be effectively supported including support for the fostered young people and other children within the placement (including children of foster carers), and support and training for foster carers to manage this behaviour.
  • Research is needed about the full extent of all forms of exploitation and violence that are experienced and instigated by young people in foster care, the circumstances in which it takes place, the young people who are more likely to be affected and its co-occurrence with other difficulties. Research should also focus on the neglected area of children and young people’s perspectives.

Lutman, E., and Barter, C. (2016) Peer violence in foster care: a review of the research evidence.Child & Family Social Work, doi: 10.1111/cfs.12284.

Florida Supreme Court denies review of order limiting parents’ pro se filings

The Florida Supreme Court has declined jurisdiction in a dependency case involving two pro se parents who were limited by the Fourth DCA to filing pleadings only with the signature of a member of the bar. The word “sovereign” occurs in the parents’ jurisdiction brief three times.  The docket, with briefs, is here.

Florida Supreme Court lifts stay on SIJ cases, agrees to hear TPR case

The Florida Supreme Court last week lifted the stay on two private petition cases out of the Third DCA: KBLV and BYGM. The Florida Supreme Court recently heard oral argument in OICL, a case involving a child in the physical custody of an uncle who sought a dependency adjudication based on the uncle’s lack of legal custodianship. In contrast, the two new cases involve children in the custody of their mothers who sought dependency adjudications based on abandonment by their fathers. The children argue that without the adjudication of dependency, they will be returned to the care of their fathers and thus will be at risk of harm.

The Court simultaneously stayed two other cases which were decided by the Third in December 2015: EPN and BRCM.  These cases involve children in the custody of a mother and a godmother, respectively. Both cases drew lengthy dissents from Judge Salter.

The Florida Supreme Court has also agreed to review, without oral argument, the case of S.M. v. the Department of Children & Families. This case arises from a termination of parental rights. The mother was originally accused of neglect, and appears to have had an ongoing marijuana dependency and lack of employment. The children were placed with the mother’s relatives. The mother argues that termination was not the “least restrictive means” of protecting the children from harm where relatives were available and there was no allegation that her continued contact with the children posed any risk of harm. The Fourth DCA found that the existence of a relative placement was not sufficient to defeat a termination of parental rights.

Reading these cases side by side, it’s hard not to notice the incongruous rulings. In one set of cases, the rights to a child could be terminated even if the child was safely in a relative placement; but in the other set, the child could not even be adjudicated dependent because  of the relative and non-relative placements. In the first set, the child will have ongoing safety due to a court order. In the second set, the child will be all but guaranteed to return to danger because of the failure to enter a court order. I leave it to the reader to craft some clever logic to reconcile the two outcomes. It appears to me that immigration status is the major distinguishing feature.

Florida Supreme Court hears immigrant juvenile’s dependency appeal

The Florida Supreme Court heard the case of OICL v. Department of Children & Families today. From Gavel to Gavel:

OICL banner.png

Click the image or here for video. 

Transcript:

View Related Transcript (PDF) [still pending as of the time this was posted]

 

Summary: Palm Beach County — A Guatemalan teenager who entered the United States in early 2014 was released by immigration officials to his uncle in Palm Beach County. The boy filed a petition, alleging he had been abandoned by his mother in his home country and asking to be ruled a dependent child. The trial court denied the petition and the Fourth District Court of Appeal upheld that ruling. The boy asked this Court to review, citing conflicts with other District Courts of Appeal.