Florida Guardian ad Litem
Legal Briefs Newsletter
April 2015

A Note from Alan Abramowitz

 

As we all work to better the lives of abandoned, abused and neglected children here at the Statewide Guardian ad Litem Office, I am reminded of the power of one.? One case, one child, one dedicated child advocate, one legislative session, one story - all of these "ones" can change the path of so many. The GAL Program has so many exciting things happening - all to bring us together as one to represent Florida's most vulnerable children. ?Here are a few:

 

  

  • The Second Annual Florida Guardian ad Litem Disabilities Training Conference - May 21-22, 2015 in Orlando Florida. To find out more click here.

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  • The Florida Guardian ad Litem Foundation is hosting a charity golf tournament May 20, 2015 to support the work of the GAL Program.? To find out more click here.

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  • The Guardianship Bill the GAL Program has championed has passed the House and is on its way to the Senate.

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  • The smooth implementation of Registry Attorneys for certain children with special needs.

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  • The House declared April 14th as Guardian ad Litem Day!

We have so much to celebrate - but most of all I want to celebrate you - the child welfare professionals that make the lives of Florida's children better.

    
Thank you for making a difference in a child's life.
 

 

Alan' Signature
Alan Abramowitz
Executive Director
Florida Guardian ad Litem Program

First Circuit Opinions

State v. T.S., 155 So.3d 476 (Fla. 1st DCA 2015)
The trial court found that the Department of Children and Families (Department) met the statutory factors for termination of parental rights and established that termination was in the best interests of the child but denied termination, finding it was not the least restrictive means to protect the child. The Department appealed the findings related to least restrictive means. The First District Court of Appeal (First DCA) agreed with the Department's argument that the trial court improperly relied on "the availability of a non-adoptive placement with a relative" in determining that termination was not the least restrictive means to protect the child. Florida Statute ? 39.810(1) prohibits the court from basing its decision not to terminate rights solely on the availability of an alternative placement.

 

Although the trial court cited to two recent First DCA cases to support their findings (A.H. v. Dep't of Children and Families, 144 So. 3d 662 (Fla. 1st DCA 2014) and G.H. v. Dep't of Children and Families, 145 So. 3d 884 (Fla. 1st DCA 2014)), the First DCA distinguished both from the case at hand. In A.H., the child had a pre-existing permanent guardianship with a foster mother. There was no indication the birth mother was a danger to the child, the child's interactions with the birth mother were positive and the child wanted to maintain a relationship with the mother. The Department ultimately conceded that maintaining the permanent guardianship was a less restrictive alternative to termination. In G.H., the child had been sexually abused by her sibling but had a strong bond with her parents. The trial court denied termination finding that the harm to the child by permanent separation from her parents would be greater than that of reunification. The First DCA found in G.H. that removing the sibling was less restrictive than terminating the rights of the parents.

 

In the instant case, there was no pre-existing permanent guardianship. The trial court found that the child would be unsafe with Mother and that Mother had a history of displaying misconduct during visits. No evidence was presented of any other permanency plan besides adoption by the aunt. Without any evidence to support it, the trial court determined that the aunt entering into a permanent guardianship was less restrictive than termination.

 

The First DCA remanded the case for the trial court to reexamine the availability of a least restrictive means of protecting the child from hard without relying solely on the possibility of a non-adoptive placement with a relative.

 

Read the Opinion

 

C.D. v. Department of Children and Families, 2015 WL 848157 (Fla. 1st DCA)
Mother appealed a decision terminating her parental rights. The First District Court of Appeal (First DCA) reversed and remanded only the trial court's ruling that termination was the least restrictive means of protecting her children from harm.

 

At the termination trial, Dr. Flynn, the family therapist working with mother and the children, testified that he had concerns about the Mother's ability to care for the children but the children were not negatively effected by seeing Mother and that supervised visitation was safe for the children. The Guardian ad Litem reported that the children were bonded to their mother and that termination would not harm the children because the maternal aunt would allow contact with Mother if the aunt was permitted to adopt.

 

The trial court based its finding that termination was the least restrictive means of protecting the children on Mother's lack of progress in remedying the issues that brought her children into care. Additionally, the trial court noted that the "mere availability of a potential relative placement, especially one disclosed on the eve of trial" did not mean such a placement is the least restrictive for the children. The trial court looked to the A.H. case for guidance on least restrictive means, finding that A.H. looked at the "availability of a permanent placement plus the existence of a parent child relationship plus the existence of a less restrictive alternative to termination that would guard the children from harm." The trial court found that in the instant case "the test of A.H." was not met because no evidence was presented as to the existence of a relationship between the children and Mother.

 

The First DCA found the trial court's analysis and application of A.H. to be incorrect. First, with regard to the existence of a relationship between the children and Mother, the First DCA found that such a finding was in opposition with the testimony and another trial court finding that the children were bonded to their mother. Second, in A.H., termination was found to not be the least restrictive means of protecting the child even though there was "little or no bond" between Mother and child.

Mother argued and the First DCA agreed, that termination could not have been the least restrictive means of protecting the children when the trial court found that further contact between Mother and the children would not endanger them. The First DCA compared the incongruities in the trial court's findings that the children would not be harmed by termination because there would be continued contact and that the children do not have a relationship with Mother but have a bond with her with findings in the G.H. case where the trial court found that termination was in the child's best interest because the child and her parents could continue a relationship with supervision.

 

Read the Opinion


 
Second Circuit Opinions

J.A.I. v. B.R., 2015 WL 404001 (Fla. 2d DCA)

J.A.I. and J.K.C. filed a petition for writ of certiorari seeking review of a trial court order requiring them and J.A.I.'s daughter to submit to genetic testing for the purpose of determining paternity. The Second District Court of Appeal (Second DCA) granted the writ finding that B.R. was precluded from challenging paternity.

 

J.A.I. and J.K.C. signed an acknowledgement of paternity on April 20, 2012. On June 26, 2012, B.R., filed a petition to determine paternity. He filed an amended petition on June 17, 2014. B.R. alleged that J.K.C. mistakenly believed he was the father of the child and was not aware that mother had a relationship with B.R. In between the signing of the acknowledgement and the filing of B.R.'s petition, J.A.I. and J.K.C. filed a petition seeking a declaratory judgment naming J.K.C. as the child's father. The cases were consolidated and the court granted B.R.'s motion for genetic testing.

 

Florida Statute ? 742.10(1) sets forth procedures for determining paternity when children are born out of wedlock. If an individual signs a notarized voluntary acknowledgement of paternity, the executed acknowledgement creates a rebuttable presumption of paternity. After sixty days, the acknowledgement can only be challenged "on the basis of fraud, duress, or material mistake of fact, with the burden of proof upon the challenger. . . " Florida Statute ? 742.10(4).

 

Although B.R. alleged that J.K.C.'s acknowledgement was based on a mistake of fact, J.K.C. admitted in his petition for declaratory judgment that he was aware that B.R. claimed he was the child's father. The Second DCA found that the acknowledgement was therefore not based on a material mistake of fact and B.R. had no statutory basis to challenge paternity.

 

Read the Opinion

 

 

Third Circuit Opinions

Department of Children and Families v. J.B., 154 So.3d 479 (Fla. 3rd DCA 2015)
 The Department of Children and Families (Department) appealed an order directing it to pay for travel costs of the pro bono Attorney Ad Litem to assist in her client's therapy at a North Carolina residential treatment facility. The Third District Court of Appeal (Third DCA) treated the appeal as a petition for writ of certiorari and quashed the order.

 

Based upon the recommendation of J.B.'s psychiatrist and upon the agreement of the Department and the Guardian ad Litem, the trial court approved placement of J.B. at a residential program in North Carolina. After the placement order was granted, the pro bono Attorney ad Litem filed a motion requesting that the Department be required to pay travel costs associated with visiting the child in order to maintain a meaningful attorney-client relationship. The trial court denied the Attorney ad Litem's request but ordered the Department to pay for any visits by the Attorney ad Litem that are therapeutically recommended by the residential treatment program.

 

The Third DCA found that it is a violation of the separation of powers for a court to direct an executive department on how to expend funds of that department unless a statute of constitution authorizes a court to do so. The Third DCA quashed the trial court's order requiring the Department to pay for the pro bono Attorney ad Litem's travel costs.
 
 

Department of Children and Families v. S.B., 2015 WL 674941 (Fla. 3rd DCA)

 

The Department appealed an order of the trial court directing the Department to make payments to relative caregivers of children. The Department asserted that the trial court's payment order was in violation of the requirements set forth by the Florida Administration Code Rule 65C-28.008(1)(d). The trial court found that the Administrative Rule was beyond the scope of the language contained in Florida Statute ? 39.5085(2)(a), which directs the Department to "establish and operate the Relative Caregiver Program pursuant to eligibility guidelines established in this section as further implemented by rule of the Department."

 

The Third DCA found that the trial court exceeded its authority and that the proper procedure to determine a rule's validity is through an administrative challenge unless there is evidence showing an absence of authority.

 

Read the Opinion

 
 
Fourth Circuit Opinions

D.S-B., Department of Children and Families,155 So.3d 451 (Fla. 4th DCA 2015)
 Mother appealed an order of dependency, which in large part was focused on Mother's mental health issues. The Fourth District Court of Appeal (Fourth DCA) reversed the dependency order finding that it was entered without a valid waiver of counsel by Mother.

 

In the middle of the trial court hearing, Mother's attorney withdrew and Mother requested permission to represent herself. The court questioned Mother as to her educational background but failed to ask any questions about her mental condition except whether she had ever been decreed incompetent or insane. The Department questioned on multiple occasions whether Mother made an intelligent and knowing decision to represent herself and asked the court to consider the Mother's mental health evaluation. The trial court refused to consider the evaluation.

 

The Fourth DCA found that without examining whether Mother's mental health impacted her ability to make an intelligent and knowing decision to represent herself, it cannot be determined whether her waiver was valid. The matter was remanded for further proceedings. If the Mother continues to request self-representation, the trial court was directed to conduct a hearing consistent with it's opinion to determine whether Mother's waiver is knowing and intelligent. If the trial court determines that Mother's mental health prevents her from waiving counsel, the trial court was directed to appoint her counsel.

 

Read the Opinion

 

Department of Children and Families v. T.S., 154 So.3d 1223 (Fla. 4th DCA 2015)
The trial court dismissed a petition for dependency sua sponte at a fourth continued arraignment hearing over the objection of the Department of Children and Families (Department). The matter had been continued three times because the Department was unable to locate either parent, and the child absconded from shelter placement. A pick-up order was outstanding for the child. Both the Department and the child sought rehearing, which was denied. The Department and the child appealed asserting that dismissal without notice, a hearing, or the opportunity to be heard violated the due process rights of the Department and the child. The Department also asserted that the trial court erred in not considering the best interests of the child. The Fourth DCA agreed on both points and reversed and remanded the case to trial court to reinstate the petition

 

Pursuant to Florida Statute ? 39.506(1)-(2), an arraignment provides a parent the opportunity "to admit, deny or consent to findings of dependency alleged in the petition." Disposition and adjudication hearings are scheduled based on the parents' responses.

 

The notice sent for the fourth arraignment hearing did not provide for an adjudication or disposition of the petition. None of the parties were on notice that the petition might be dismissed and neither the Department nor the child was given the opportunity to present any evidence or make any recommendations to the court. The Fourth DCA found this to be a clear violation of their right to due process.

 

Additionally, the Fourth DCA agreed that it was error to not consider the best interests of the child, holding "[a]t the heart of all dependency proceedings is the best interests of the child." B.Y. v. Dep't of Children and Families, 887 So. 2d 1253, 1256 (Fla. 2004).  

 

Read the Opinion

 

M.P. v. Department of Children and Families, 2015 WL 1044156 (Fla 4th DCA)
 

Father appealed an Order of Adjudication of Dependency and Order of Disposition and Case Plan Approval. The Fourth District Court of Appeal (Fourth DCA) affirmed adjudication but remanded to strike several unsupported findings from the order and reversed the need for the Father to submit to random drug testing from his case plan.

 

With regard to the drug testing, the trial court found that drug testing was needed based upon "the allegation of drug use all around." There was no evidence presented at the trial court that Father abused drugs. Although the petition alleged that Father had a criminal history of drug possession no evidence of his criminal history was presented at trial. Evidence was presented that Father failed to protect the children from Mother's drug use and neglect, there was no evidence presented that Father's failure had anything to do with a substance abuse problem of his own.

 

Pursuant to Florida Statute ? 39.6011(2)(a), a case plan must include a "description of the identified problem being addressed, including the parent's behavior or acts resulting in risk to the child . . . " Before the court can accept a case plan, it must consider whether the case plan is specifically "designed to address facts and circumstances upon with the court based the findings of dependency . . . " Florida Statute ? 39.603(1)(f).

 

The Fourth DCA cited to In re G.S., 84 So. 3d 1231, 1233 (Fla. 2d DCA 2012), which held that "[g]eneric case plans that doe not consider the needs and circumstance of the individual family violate these statutory directives, as does a case plan for one parent that simply mirrors the case plan for the other . . . "

 

Read the Opinion

 

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If you have any questions or comments please email me at [email protected]