Florida Statue
§ 39.806(1)(l) permits filing a TPR petition when the child or another child of the parent(s) have been placed in out of home care based on conditions caused by the parent(s) on three or more occasions. Mother cited to
Santosky v. Kramer, 455 U.S. 745 (1982), which held that a state must support its allegations by at least clear and convincing evidence prior to terminating parental rights. Mother argued
§ 39.806(1)(l) permits termination based on a lesser standard of proof than what is required for TPR (clear and convincing). Because the individual out of home placements were based on probable cause or preponderance of the evidence standards, mother argued that termination based on multiple prior out of home placements must also have been based on a lower standard of proof. She further argued that the statute is not narrowly tailored to advance the compelling interest in protecting the physical and psychological well-being of children.
The Third DCA held that the statutory ground of three or more out of home placements was established by clear and convincing evidence and not by a lesser standard. Citing to
K.J. ex rel. A.J. v. Department of Children and Families, 33 So. 3d 88, 90 (Fla. 1st DCA 2010)(concurring), the Third DCA agreed with the First DCA's holding that in the drafting of the statute the "legislature concluded it is harmful for children to be removed from the same home numerous times; therefore prior instances of out of home placement can be relied on in establishing grounds for the termination of parental rights." Additionally, the Third DCA noted that the legislature inserted other safeguards into Chapter 39, specifically that the state must not only establish grounds for termination but also that the termination, by clear and convincing evidence, is in the manifest best interest of the children and the least restrictive means of protecting the children from harm.
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NOTE. All other dependency opinions issued by the Third DCA involve unaccompanied minors who utilized Petitions for Dependency to facilitate applications for Special Juvenile Immigration Status.
In re B.R.C.M., 2015 WL 9584743 (Fla. 3rd DCA)
B.R.C.M. appealed a summary dismissal of his Petition for Dependency. The Third District Court of Appeals (Third DCA) affirmed and Judge Salter filed a lengthy dissent.
B.R.C.M. was born in Guatemala, abandoned by his father at birth and abandoned by his mother when he was four years old. He was raised by his grandmother until he was fourteen years old and she was too old to provide for his care. Because he had no other relatives to care for him and feared he would be assaulted or forced to join a local gang, he traveled illegally into the United States with some friends. After turning himself in to border patrol, he was placed with his godmother in Miami.
The Third DCA reiterated that the purpose of the dependency provisions in Chapter 39 is "to provide services to children who are truly (emphasis in the decision) abandoned, abused or neglected" rather than facilitate the pursuit of Special Juvenile Immigrant Status. The Third DCA found that the abandonment of B.R.C.M. by his parents and resulting neglect by failing to make arrangements for his care were both too remote in time to be a basis for dependency. There was no allegation that B.R.C.M. was abused and the godmother was meeting all of the child's needs.
Dissent: Judge Salter argued in his lengthy dissent that the instant case warrants individualized consideration and adjudication rather than summary denial. Salter asserted the department should investigate the claims in these types of petitions and the trial courts should hold evidentiary hearings rather than denying the petitions outright. If petitions fail to state a prima facie case, Salter argued the petitioner should be permitted to amend the petition. In the alternative, Salter argued that the issue central to these cases is of great public importance and should be certified to the Supreme Court.
After completing a fourteen page historical analysis of similar cases from 2005 to the present, Salter noted a shift from evidentiary hearings and appeals to the Department treating these dependency petitions from immigrant juveniles as not warranting of investigation with the trial court (and the District Circuit Courts) finding them appropriate for summary denial.
Salter then turned to
H.S.P. v. J.K., 121 A.3d 849, 860 (N.J. 2015), where New Jersey recently set forth the following procedure for handling these type of cases:
In an effort to ensure that factual findings issues by New Jersey courts provide USCIS with the necessary information to determine whether a given alien satisfies the eligibility criteria for SIJ status we instruct courts of the Family Part to make separate findings as to abuse, neglect and abandonment with regard to both legal parents of an alien juvenile . . . Regardless of the outcome of [the analysis of one parent], the court should next conduct the same analysis with regard to the child's other legal parent.
Salter urged Florida to adopt a similar procedure including individual investigation and evidentiary hearings.
S.F.A.C. v. Department of Children and Families, 2015 WL 9584395 (Fla. 3rd DCA)
The majority issued a per curium decision, affirming denial of S.F.A.C.'s private petition for dependency. Justice Salter dissented.
S.F.A.C. was born in Honduras and left by his parents with an older sibling when he was nine years old. When he was twelve years old, he was sent to live with an aunt. The aunt and her husband forced him to work, mistreated him, yelled at him, limited his food and were aggressive towards him. S.F.A.C. and his sister fled to the United States through Mexico. After being detained, S.F.A.C. was released to his mother's custody in Miami. In his dependency petition, S.F.A.C. alleged that he was abandoned by each of his parents, that he had no parent or custodian capable of providing care for him and that he was at substantial risk of imminent abuse, abandonment or neglect by his parent or custodian.
Salter reiterated his belief that these cases warrant individualized adjudication. Salter proposed the Florida courts follow the New Jersey procedure or something similar. In arguing against "a categorical, summary denial of all juvenile immigrant petitions . . . followed by the categorical and summary affirmance of those circuit court denial orders on appellate review," Salter urged "we cannot lose sight of the fact that each immigrant juvenile petitioner is a child inside our state borders . . and that each such petitioner is equal to other Florida children under the law."
In re E.P.N., 180 So.3d 249 (Fla. 3rd DCA 2015)
Although the majority affirmed summary denial of E.P.N.'s appeal, a dissent was filed by Justice Salter. Salter noted factual differences in E.P.N.'s case that he believed established a prima facie basis for her claims and was entitled to an evidentiary hearing on her petition. E.P.N. was released by the Office of Refugee Resettlement to her mother and her petition alleged abandonment by her father pursuant to
§ 39.01(15)(a) and abuse pursuant to
§ 39.01(15)(f) by both her mother and her father within the past two years, when she was left with a relative who beat her. Similar to other recent cases, E.P.N.'s petition was denied following a brief hearing during which no evidence was taken and the department took no position.
In re S.A.R.D., 2016 WL 145999 (Fla. 3rd DCA)
S.A.R.D. appealed dismissal of his private petition for dependency. The Third District Court of Appeals (Third DCA) affirmed, finding the record supported the trial court's finding that S.A.R.D. was not abandoned, abused or neglected by his mother.
S.A.R.D. asserted in his petition that he was born in Honduras. He lived primarily with his mother and uncle after his father abandoned him when he was seven years old. After his uncle was murdered in 2012, he continued to live with his mother. Sometime after the murder, S.A.R.D. worked on a coffee farm to help financially meet his needs. In 2014, he left his mother and illegally entered the United States. After being brought to the attention of immigration, S.A.R.D. lived with family friends and was at no immediate risk of abuse, abandonment or neglect. He was nine days shy of his eighteenth birthday when the petition was filed.
S.A.R.D.'s petition for dependency asserted abandonment by his father and neglect by his mother. The Third DCA, following other recent cases, found that abandonment by his father over ten years earlier was too remote in time. As to neglect by his mother, the Third DCA noted the absence of any allegation that mother was willfully neglectful and had the ability to meet his needs, a component required in
§ 39.01(44). The Third DCA found that S.A.R.D.'s petition did not meet the prima facie threshold for a finding of dependency. As the other majority decisions similarly noted, the Third DCA concluded by stating "[t]he primary goal of the statute is to preserve the family structure, not to provide a gateway to citizenship for children who are entering this county illegally in search of a better life."
