The First DCA reversed a TPR out of Duval County this week. The posture of the case is important:
In May 2011, DCF took the then two-year-old child into protective custody and placed him in foster care. In July 2011, the trial court adjudicated the child dependent. In April 2012, the trial court created a permanent guardianship, with the foster mother serving as the child’s permanent guardian, and terminated supervision by DCF. In September 2013, the mother filed a motion to reopen the dependency case, wherein she sought to regain custody of the child. At the hearing on the mother’s motion, DCF opposed the reopening of the case, the trial court inquired about the appropriateness of adoption, and the court granted the mother’s motion for the sole purpose of DCF filing a petition for termination of parental rights. DCF subsequently filed such petition on the grounds that the parents abandoned the child, the parents failed to complete the case plan, adoption was the least restrictive means to achieve permanency, and the termination was in the child’s manifest best interest.
Because of confidentiality rules, I take the facts in opinions as I find them. And it’s hard not to read those facts and see the immediate human toll that DCF’s lack of principled prosecution caused this family. And by family, I mean the mother, guardians, and child together. DCF agreed to close a case with permanent guardianship, presumably because grounds for TPR did not exist; then sixteen months later it opposed the reopening of the case; then it reversed course and filed for TPR, forcing the family through a trial; and then it reversed again and conceded error on appeal almost a year after that. I cannot imagine the sleepless nights and anxiety of wondering what would happen, all for nothing.
If you want legalistic analysis, (jargon ahead) this is a classic Least Restrictive Means Doctrine case. The LRM Doctrine, formally speaking, is judicially derived from (Substantive) Due Process and requires (a) some showing of harm to the child and (b) that termination of the parent’s rights is the least extreme (“restrictive”) remedy available. That second prong has been whittled away in a number of cases involving the availability of relative placements (which I strongly disagree with on the policy basis that guardianships should be the second preferred permanency goal behind reunification because that’s how families outside of child welfare function when parents need help.) In practice, the LRM Doctrine provides a way for courts to preserve parental rights even when the technical elements of the statute have been met. LRM is more or less a constitutional equitable doctrine. LRM cases tend to involve the Department failing to work with a parent in good faith prior to seeking the termination of the parent’s rights or a parent for whom it just doesn’t seem fair to terminate their rights (yet).
The doctrine is also implemented, more irritatingly, as a strategy to avoid creating wider precedent on TPR grounds and to keep from wandering into the murky “manifest best interests” factors. As an equitable principle, it can almost always be framed as “on the facts of this case,” which limits its precedential value. That’s what appears to be happening here. The DCA could have reversed based on the child’s best interests (happy in the home, happy visiting the mother and sibling, no harm from the current arrangement, little benefit from TPR) or the fact that “irregular” visits by the mother do not constitute abandonment, especially when she was actually seeking custody when the TPR was filed. But those would have required parsing the facts too closely, a task that appellate courts often pretend they are loathe to do, and would encourage future hairsplitting on number of visits, degree of happiness, etc. LRM cases can have a good outcome without the burden of complicated analysis. The Court can point to the fact that the child is happy and safe, and the Department has see-sawed in its positions throughout the litigation. Therefore, “given the circumstances of this case,” TPR is not the least restrictive means to protect the child from harm. Read: leave well enough alone and go home.