Florida Guardian ad Litem
Legal Briefs Newsletter
June 2015

A Note from Alan Abramowitz

 

 

This month, Florida Governor Rick Scott signed into law the Regis Little Act to Protect Children with Special Needs, which ensures vulnerable foster youth have a guardian in place at age 18. You can read more by clicking here. 

 

 

 

 

This May in Orlando, over 450 lawyers, judges, and child welfare professionals from across the state attended the 2015 Guardian ad Litem Program Disabilities Training Conference - Imagining the Future.  From an inspiring discussion about Supported Decision Making to over 30 workshops - the conference was a huge success.? Everyone can view the videos of the workshops and keynote speakers on the GAL Program website (coming soon at www.GuardianadLitem.org).

 


   


 

The Florida Guardian ad Litem Foundation also held a very successful first golf tournament to raise money for the GAL Foundation which supports the work of the GAL Program. Thank you to all who attended to support the Foundation's important work.  Seen here -  Team Sunshine Health. 


 


 


 
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

 

W.W. v. Department of Children and Families, 159 So.3d 999 (Fla. 1st DCA 2015)
Father petitioned for writ of certiorari regarding an Order denying his motions to reinstate supervised visitation and to declare Florida Statute ? 39.0139 unconstitutional. The First District Court of Appeal (First DCA) found review of such an order is properly addressed by appeal and treated the petition as an appeal pursuant to Florida Rule of Appellate Procedure ? 9.110(a)(1).

 

The First DCA referenced a recent amendment to Florida Rules of Appellate Procedure 9.130(a)(4), which eliminated the phrase "orders entered after final order on authorized motion." The Committee Notes included with the amendment noted that the change "clarifies that non-final orders entered after a final order are no more or less reviewable than the same type of order would be if issued before a final order."

 

The First DCA found that post-dependency orders on an authorized motion that fully resolves issues raised by the motion are final in nature and reviewable as a final order. 

 

Read the Opinion

 

C.D. v. Department of Children and Families, 2015 WL 848157 (Fla. 1st DCA)
An earlier opinion in this case was issued by the First District Court of Appeal (First DCA) on February 27, 2015. (This earlier opinion was summarized in the last Legal Briefs Newsletter.)  Following motions from the Department and the Guardian ad Litem for Clarification, Rehearing and Rehearing En Banc, the First DCA withdrew its prior opinion and issued this new opinion.

 

Mother appealed a final order terminating her parental rights. The First DCA reversed only as to the trial court's ruling that termination was the least restrictive means of protecting the 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 affected 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. v. Department of Children & Families, 144So. 3d 662 (Fla. 1st DCA 2014) 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 disagreed with the trial court's reading and application of A.H. The First DCA agreed with Mother's argument that terminating her parental rights was not the least restrictive means to protect the children because of the trial court's finding that continued contact with mother and the children would not endanger the children and its finding that the children had a bond with their mother. The First DCA affirmed that termination was warranted and in the children's best interest but remanded as to the finding that termination was the least restrictive means to protect the children from serious harm.

 

Read the Opinion


 

In re YV., 2015 WL 1578561 (Fla. 1st DCA)
 This appeal follows dismissal of a private petition for dependency on behalf of a minor child who illegally emigrated alone from Honduras to the United States. Y.V. was abused and abandoned by his parents in Honduras. He crossed the Mexico-United States border alone, was picked up by "authorities," who contacted his uncle in Florida. Uncle was not seeking services to care for Y.V. and the parents consented to adjudication. The express purpose of the petition was to obtain an adjudication order based on abuse, abandonment or neglect, which could be utilized in seeking special immigrant juvenile (SIJ) status and ultimately lawful permanent residence status.

 

The trial court dismissed the petition based on the fact that the events that gave rise to dependency occurred in Honduras and that the child was not facing imminent risk living with his uncle. The trial court also viewed the petition as an attempt to circumvent immigration laws.

 

Florida Statute Chapter 39 describes the purpose of the chapter as "to provide for the care, safety and protection of children" and to protect the "children of this state" from "abuse, abandonment, neglect and exploitation."   The First District Court of Appeal (First DCA) found that nothing in the statute limits the protections contained in Chapter 39 to children where the events that led to dependency occurred inside the state of Florida.

 

The dependency petition alleged that Y.V. was a dependent child based on Florida Statute ? 39.01(15)(a) and (f), specifically that the child was abandoned, abused or neglected by his parents and that he had no parent or legal custodian capable of providing supervision and care. Neither paragraph requires that the child be at imminent risk of harm. The First DCA citied to several other DCA opinions where the children were found to be dependent because they were abandoned with no legal custodians even though they were being safely taken care of by other adults.

 

Next, the First DCA examined the interplay between Florida Dependency Law and Federal Immigration Law. Pursuant to 8 USC ? 1101 (a)(27)(j), the first step for a juvenile to obtain SIJ status, an immigrant classification that allows a child to apply to become a permanent resident of the United States, is for a state court to adjudicate the child dependent or issue a similar custody order. Florida Statute ? 39.5075(1)(b) sets forth the procedure to facilitate this process, in which the Department must consider whether the child might be eligible for SIJ status. The First DCA held that the ultimate decision of SIJ status is one for the federal immigration authorities. The motivation of a petitioner should not lead to rejection of a dependency petition by a Florida court.

 

Although 8 USC ? 1101 (a)(27)(J)(iii)(I), does provide that no juvenile court has jurisdiction to determine custody status or placement of an alien in the Custody of the Secretary of Health and Human Services without the Secretary's consent, the instant case provided no information that the child was in the custody of the Secretary of Health and Human Services. The First DCA found that the trial court had jurisdiction without additional evidence showing the child be in the custody of the Secretary.

 

The First DCA reversed dismissal of the petition and remanded for determination of whether the petition establishes a prima facie case of dependency.  

Read the Opinion 


 
Second Circuit Opinions

 

In re R.T., 2015 WL 1259666 (Fla. 2nd DCA)
Mother petitioned the court for a writ of certiorari seeking to quash the trial court's order requiring her three teenage sons to undergo therapeutic assessments in connection with the denial of Mother's motion to amend a safety plan prohibiting Mother's husband, S.K., from having contact with her sons. The Second District Court of Appeal (Second DCA) granted the petition and quashed the order.

 

The underlying dependency petition alleged that S.K. had previously sexually abused the 9-year-old daughter of a former girlfriend. At the time, Mother and her five children were living with S.K. Mother was pregnant with S.K.'s child.   The trial court adjudicated the children as to mother and issued a no contact order between S.K. and his step-children. Mother then gave birth to another child, R.K., who was adjudicated dependent as to both mother and her father, S.K.

 

Over the next three years, Mother completed her case plan and reunified with her children.   During this time, she gave birth to another child, B.K., who was not adjudicated dependent. Because S.K. had not completed his case plan and the no contact order remained in effect, S.K. moved out of the home. S.K. continued to work on his case plan and maintained unlimited supervised visitation with R.K. and unsupervised visitation with B.K. (because no petition was ever filed as to that child).

When S.K. completed his case plan, he filed a motion to reunify with R.K. and to have the no-contact order lifted as to his stepsons so he could move back in with Mother. The Department and the Guardian ad Litem opposed his requests alleging that the sexual offender treatment he completed was insufficient to address the underlying issues that brought the children into care.   Mother sought similar relief when S.K. was deemed to not have standing as to his stepsons. The trial court denied Mother's motion and ordered sua sponte that the teenage sons undergo "therapeutic assessments . . . to determine their individual self-protective capacities."

 

First, the Second DCA held that the order for therapeutic assessments denied Mother due process by issuing relief not requested in any of the proceeding pleadings and without providing Mother the opportunity to be heard. Second, the Second DCA, citing Florida Statute ? 39.603(1)(f) and 39.6012(1)(a), found that the order for therapeutic assessments did not relate in any manner to the issues that brought the boys into care and was not meaningfully designed to address the circumstances that brought them into care or the least intrusive means to protect them. The Second DCA noted the ages and gender of the children at issue and the successful discharge of S.K. and the boys from family counseling as important factors against the need for therapeutic assessments.

 

Read the Opinion   
Fourth Circuit Opinions

 

M.P. v. Department of Children and Families, 159 So.3d 341 (Fla. 4th DCA 2015)
The 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 reversed and remanded as to unsupported findings in the orders and the instruction for the Father to submit to random drug testing.

 

The dependency petition as to Father alleged that he had minimal contact with the children and failed to protect them from Mother's drug use and Mother's abusive paramour. The only mention of drug use with regard to Father was an allegation that he had a criminal history involving drug possession. No evidence was presented at trial as to Father's alleged criminal history of drug possession, that Father abused drugs, or that Father's failure to protect the children from Mother's drug use and neglect was related to any substance use by Father.

 

Although the Fourth DCA pointed out that the allegation of a criminal history of drug possession placed the question of Father's substance abuse in controversy, the Fourth DCA did not find there was a showing of good cause for Father to submit to a substance abuse evaluation pursuant to Florida Statute ? 39.407. The trial court also failed to show that a substance abuse evaluation would meaningfully address the facts and circumstances which resulted in adjudication as to Father, as required by Florida Statute ? 39.603(1)(f).

 

Read the Opinion


 A.S. v. Department of Children and Families, 2015 WL 1448507 (Fla. 4th DCA)
Father appealed termination of his parental rights. The Fourth District Court of Appeal (Fourth DCA) reversed the termination holding that the trial court erred in finding that Father abandoned his child and that termination was the least restrictive means to protect the child.

 

J.A. was born in September of 2012 and placed in care immediately thereafter. The Department of Children and Families filed for termination on the basis of abandonment in December 2012. Father was one of several men that Mother thought might be the child's father. Mother did not name Father as a possible father until six months after the child's birth, when she named him during a court hearing in February 2013. After two missed paternity tests and a missed hearing on a motion to establish paternity, Father took a paternity test in August of 2013 but did not learn he was positively identified as the father until December of 2013. Father testified that he did not reach out to the testing company himself because he thought they would contact him if he was found to be the father.  The Department did not conduct a diligent search for Father as required by Florida Statute ? 39.0136(1).

 

In reading the statute regarding abandonment with the definition of "parent" contained in Florida Statute ? 39.01(1), which limits the term as follows: "the term does not include . . . an alleged or prospective parent, unless the parental status falls within the terms of s. 39.503(1) or s. 63.062(1)," the Fourth DCA held that Father, as a prospective parent, could not have abandoned his child prior to establishment of his paternity. The Fourth DCA found that Father's actions after the establishment of paternity did not justify a finding that he abandoned his child by clear and convincing evidence. The testimony established that from March of 2014 when Father was first permitted visitation until the termination trial he was on pace to see his child on a weekly basis.

 

The Fourth DCA also found that termination of Father's paternal rights was not the least restrictive means to protect the child from harm. In abandonment cases, the Department is not required to offer the parent a case plan with a goal of reunification but must show that the Department "made a good faith effort to rehabilitate the parent and reunite the family, such as through a current performance agreement or other such plan for the present child," Padgett v. Dep't of Health and Rehabilitation Services, 577 So. 2d 565, 571 (Fla. 1991), and that the parent will not benefit from court ordered services. C.A.T. v. Dep't of Children and Families, 10 So. 3d 682, 684 (Fla. 5th DCA 2009).

 

In the instant case, Father was never offered a case plan or provided any services. The only testimony that the child would suffer harm if reunited with father was disputed testimony that the child returned from visits with dirty diapers and occasionally had night terrors.


 

Read the Opinion


 

M.N., Jr. v. Department of Children and Families, 2015 WL 1545230 (Fla. 4th DCA)
Father appealed the order dismissing his second motion to set aside a judgment of adoption. Both of Father's motions alleged that he was not provided proper notice. Father's first appeal was dismissed as untimely. The trial court found his second motion to be barred by the doctrine of res judicata. The Fourth District Court of Appeal (Fourth DCA) found that res judicata was incorrectly applied because the trial court did not address the notice issue in its first denial. However, the Fourth DCA affirmed dismissal based on timeliness. Florida Statute ? 63.182(1) requires that an action to set aside an adoption may not be filed more than one year after the judgment terminating parental rights. Father's second motion was filed past the one year deadline.


 

Read the Opinion

 

B.K. v Department of Children and Families, 2015 WL 1652761 (Fla. 4th DCA)
Father appealed termination of his parental rights. He alleged that his incarceration did not warrant termination as it was not for a significant portion of the child's life. He further argued that termination was not the least restrictive means of preventing harm to the child.

 

At the time of the termination hearing, Father's child was almost six years old. She had been in foster care for the first year and a half of her life, placed with her mother for two years, removed and placed back in foster care, and three months later placed with her two half-siblings in a pre-adoptive foster home. Father was incarcerated her entire life and did not anticipate release until 2017.

The Fourth District Court of Appeal (Fourth DCA) examined Florida Statute ? 39.806(1)(d)(1), which provides ground for termination of incarcerated parents. The section was amended in 2012. The amendment changed a ground for termination when the period of time for which the parent is expected to be incarcerated will constitute a "substantial portion" of the child's minority to "a significant portion" of the child's minority. The Statute also requires that the court must consider the period of time of incarceration starting the date of actual incarceration, the child's age and the child's need for a permanent and stable home. The Fourth DCA cited to B.C. v. Florida Department of Children and Families, 887 So. 2d 1046, 1053 (Fla. 2004), which held the state must also show clear and convincing evidence that reunification with the parent poses a significant risk of harm and that termination is the least restrictive means to protect the child from harm.

 

The Fourth DCA found that the fact that Father will ultimately have been incarcerated for almost 50% of the child's life, the child's young age, and the remaining time left of Father's incarceration before he would be available to take custody of the child was competent, substantial evidence that weighted in favor of termination and on the actual effect of incarceration on the parent-child relationship.

 

The Fourth DCA turned next to the manifest best interest analysis of termination as set forth in Florida Statute ? 39.810. In the instant case, there was no relative placement available; Father's incarceration prevented him from meeting the child's needs; the child had no bond with her father and did not know who he was; the child was doing well in her placement; the child was placed with her siblings; the child was bonded to her foster parents and in a pre-adoptive home; and the child was not at an age where continuing in long-term foster care was appropriate. Although the Fourth DCA found Father's desire to remain in his child's life and his attempts to maintain contact with his child admirable, the Fourth DCA found that it did not "trump the need to establish permanency and stability in S.C.'s life."

 

Finally the Fourth DCA examined whether termination of parental rights was the least restrictive means to protect the child from harm. The Fourth DCA held that termination was the least restrictive means of protecting the child "from the harm of continued instability in her life" because the child was bonded with her caregivers and there was no other permanent custody arrangement available.

 

Although the Fourth DCA did uphold termination, the case was remanded to the trial court to consider whether an order for post termination contact with Father is in the child's best interest pursuant to Florida Statute ? 39.811(7)(b).

 

Read the Opinion

 

D.S. v. Department of Children and Families, 2015 WL 1810315 (Fla. 4th DCA)
Father appealed termination of his parental rights based upon his incarceration. The Fourth District Court of Appeal (Fourth DCA) reversed as to two of his three children, finding as to those children that termination was not supported by competent substantial evidence, that termination was not in the children's manifest best interest or that termination was not the least restrictive means to protect the children from harm.

 

Father was incarcerated a month prior to the children being removed from their mother with an anticipated release in 2017 or 2018. Two of his three children were placed with their paternal aunt. Father maintained consistent contact with them in the form of weekly letters, two to three phone calls per week, and several contact visits at the prison.   Paternal aunt testified at the termination trial that the children were excited when Father called, called him "daddy" and had a bond with their father. She testified that she was willing to be a permanent guardian for the children but uncertain about the long-term commitment of adoption.

 

As with the previous summarized case, the Fourth DCA cited toB.C. v. Florida Department of Children and Families, 887 So. 2d 1046, 1054 (Fla. 2004), which held that a determination terminating parental rights "cannot rest exclusively on the length of incarceration. The actual effect of incarceration on the parent-child relationship must also be considered in light of the additional statutory and constitutional requirements." The Fourth DCA explained that this analysis must be both quantitative and qualitative.

 

In the instant case, Father's incarceration amounted to 27%-33% of the children's lives, an amount that was not a substantial portion of the children's minorities according to the Supreme Court in B.C. The children were in a stable home with relatives, maintained contact with their father and would maintain contact with the relatives if ultimately reunified with Father upon his release. There was no evidence presented of any harm to the children if they waited until Father's release to be reunified. The Fourth DCA found the fact that the aunt had not made a decision about adoption an important factor.

 

Finally, the trial court failed to apply the manifest best interest factors with an appreciation of the restrictions of incarceration as instructed by B.C. and failed to prove that termination was the least restrictive means to prevent harm. The Fourth DCA repeated that no evidence was presented at trial that there would be any harm to the children if father's rights were not terminated.

Read the Opinion

 
Training Updates and Resources  kids-holding-hands.jpg
 
The Statewide Guardian ad Litem Program offers a variety of training opportunities for child welfare professionals and GAL volunteers.  To learn about upcoming training across the state visit Guardian ad Litem Program Training News and Events.
 
To view or listen to archived child welfare training visit Guardian ad Litem Program Training where you will find audio and video recordings of trainings offered by the Guardian ad Litem Program.  From the GAL Disabilities Training Conference videos and trainings held across the state to audio training calls - available for CLE credit - you will be able to find useful information to help you give a voice to a child.

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