Florida Statewide Guardian ad Litem Legal Briefs Newsletter August 2014

Florida Guardian ad Litem

Legal Briefs Newsletter

August 2014

A Note from Alan Abramowitz

From our Disabilities Training Conference in May, to our Pro-Bono and Beyond online training videos, the Guardian ad Litem Program is partnering with numerous experts across the state to bring resources and training to Florida's child welfare professionals. We have training videos available on our website as well as audio training calls - all available for CLE credit. We have practice aids, presentations and of course, this Legal Briefs Newsletter. Attorneys need resources for great advocacy and we are excited to bring those to you.

Our Pro Bono and Beyond project is a great way for attorneys to use their

ReMoved

ReMoved follows the emotional story through the eyes of a young girl taken from her home and placed into foster care.

expertise to help dependent children - whether you are a seasoned attorney or a new attorney who wants to get into court and make an immediate difference in a child's life. Pro Bono Attorneys can volunteer as an attorney for the child, a GAL attorney for the child, or as a volunteer GAL. All the training you need is online - at your fingertips.

As many of you know, the recent allocation of 4.5 million dollars for attorneys for children with certain special needs is another opportunity to bring great advocacy to Florida's dependent children. Whether through training, development of resources, or legislation, Florida and the GAL Program is dedicated to providing structure and support of first-rate legal advocacy for Florida's dependent children.

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

K.S. v. Department of Children and Families, 136 So.3d 1289 (Fla. 1st DCA 2014)

The trial court found the children to be dependent based on the consent of Father. No evidentiary hearing was held and no written findings were issued. Mother had requested an evidentiary hearing within the statutory requirements but the trial court based the dependency solely on the father's consent to dependency. The First District Court of Appeal (First DCA) reversed the trial court's dependency holding a dependency adjudication without an evidentiary hearing and without written findings is contrary to the law. The First DCA also cited Morterio v. State, 477 So. 2nd 45, 45-46 (Fla. 3rd DCA 1985), which held that the consent of one parent does not affect the parental rights of the other parent.

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G.H. v. Department of Children and Families, 2014 WL 2927159 (Fla. 1st DCA)

Father appealed termination of his parental rights. The child had been sexually abused by her brother during a time period when Father was not residing in the home. The brother was removed from the home but returned by an agent of the Department of Children and Families (Department) approximately two years later. The child alleged the brother abused her again a week after the brother's return. The brother was charged but acquitted of the second allegations.

The Department sought termination of Father's parental rights claiming he "engaged in conduct towards the child that demonstrates that the continuing involvement of the parents in the parent-child relationship threatens the life, safety, well-being [sic] or physical, mental, or emotional health of the child." § 39.806(1)(c), Florida Statutes (2013).

At the termination of parental rights trial, the child's therapist testified that no contact between the child and her parents was not in the child's best interest. The child's guardian testified that she preferred a permanency goal of guardianship over adoption. The trial court found that the child had a strong emotional bond to her parents and that permanent separation from her parents would be traumatic. "The trial court concluded, though, that the harm suffered by the separation would be less than what would occur if the child was returned to them. This conclusion is without support in the record. The child's therapist testified that it was not in the child's best interests to have no future exposure to her parents. It was the agent of the Department which placed the brother back in the family home; it was not explained why removal of the brother from the family home will not protect the child victim."

Termination of parental rights is a fundamental liberty interest that must be obtained in a "narrowly tailored manner." The First DCA agreed with Father that termination in this case was not shown to be the least restrictive means of protecting the child. Even the trial court alluded to this fact in its findings when it found that under appropriate supervision the parents may not be harmful to the child.

The First DCA reversed the order terminating the parental rights of the father.

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Second Circuit Opinions

In the Interest of A.R., 2014 WL 3537020 (Fla. 2nd DCA)

Father appealed termination of his parental rights following Mother's private petition for termination. Mother's underlying petition cited Fla. Statute § 39.806(1)(d)(1), which allows for termination when the parent is expected to be incarcerated for a significant portion of the child's minority. The trial court did not permit Father to present evidence regarding the nature of his relationship with the child, his attempts to maintain a relationship with the child or the extent to which Mother interfered with the relationship between Father and child. The Second District Court of Appeal (Second DCA) held that the trial court must not only examine the length of a parent's incarceration but also examine whether termination is the least restrictive means to protect the child from harm - including the nature of the relationship with the child. The Second DCA found the trial court examined the proper statutory factors but placed undue weight on the mere fact that the father was incarcerated.

The Second DCA reversed the trial court's termination order.

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In the Interest of J.S., 2014 WL 3674049 (Fla. 2nd DCA)

The Guardian ad Litem Program(GAL) appealed the trial court's order modifying the child's placement. The GAL argued the trial court failed to consider whether the change of placement was in the child's best interest. The Second District Court of Appeal (Second DCA) agreed with the GAL.

Although the trial court modified the child's placement, nothing in its oral or written findings included a finding regarding whether such a change was in the child's best interest. Florida Statute § 39.522(1) provides that "the standard for changing custody of the child shall be the best interest of the child."

The Second DCA granted the GAL petition granted and quashed the order.

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Third Circuit Opinions

H.C. v. Department of Children and Family Services and Guardian ad Litem Program, 141 So.3d 243 (Fla. 3d DCA 2014)

Father appealed an order adjudicating his children dependent based on a finding of abuse pursuant to § 39.01(2), Florida Statutes. The Department Children and Family Services (Department) alleged abuse of Father's two-year-old child based on "two purple-green, non-patterned bruises" and a "purple loop mark" on the child's thigh. Testimony at the dependency adjudication hearing was that Father had an uneventful weekend visit with the children. He did not notice any bruising or marks on the child during the weekend. Upon the child's return on Sunday, Mother noticed bruising while giving the child a bath.

There was no evidence presented at the dependency adjudication that father hit or physically disciplined the children over the weekend. A nurse practitioner testified that she examined the child on Wednesday and saw the bruising and loop mark. She reported that the injury "represents child abuse." Although the nurse practitioner admitted during questioning that the bruising could be caused by a fall, she testified that the loop marks could only be caused by being hit with an instrument. The nurse practitioner was unable to determine a date of the injury.

The trial court found that something happened to the child over the weekend and that the injuries were consistent with "child physical abuse." The Third District Court of Appeal (Third DCA) agreed with the trial court that the child was harmed pursuant to the statutory definition of harm but found the Department failed to establish by a preponderance of the evidence that the Father inflicted or allowed someone else to inflict the injuries to the child. Specifically, the Third DCA pointed to a lack of any evidence to support that Father caused the injuries and noted that the child was exposed to a number of individuals over the weekend, including Father's wife, her children and a number of other relatives.

The Third DCA reversed the trial court's order, holding evidence was insufficient to establish that children were dependent as to father.

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Fifth Circuit Opinions

Department of Children and Families v. H.M.R., 2014 WL 2893281 (Fla. 5th DCA)

The Department of Children and Families appealed the trial court's order denying its second shelter petition regarding E.R., a three week old infant, asserting the trial court applied an incorrect standard in issuing a finding of no probable cause.

Removal of a child and placement in shelter care requires a finding of probable cause to believe the child has been "abused, neglected or abandoned or is suffering from or is in imminent danger of illness or injury as a result of abuse, neglect or abandonment."

Evidence was presented at the shelter hearing that Mother was convicted of involuntary manslaughter and felony child abuse of E.R.'s sibling following an Alford plea, convicted of misdemeanor child abuse to another sibling, and did not have custody of any of E.R's five surviving siblings. The trial court did not appear to believe it could consider Mother's past conduct in determining whether probable cause existed as to E.R. The trial court used the higher standard of clear and convincing evidence, which is required in termination proceedings but not in shelter hearings.

The Fifth District Court of Appeal (Fifth DCA) found that at the shelter stage the department is required to show the probability that the child is in imminent danger of illness or injury as a result of abuse, neglect or abandonment. To establish probable cause necessary to support its petition to shelter three-week-old child, the department was not required to produce clear and convincing evidence, but was merely required to show the probability that the child was in imminent danger of illness or injury as a result of abuse, neglect, or abandonment. F.S.A. R.Juv.P.Rule 8.305(b)(5).

The Fifth DCA found sufficient evidence was presented to the trial court to support a finding that E.R. was in imminent danger and reversed the order denying the second shelter petition.

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M.G. v. Department of Children and Families, 2014 WL 2968818 (Fla. 5th DCA)

Mother appealed the order of disposition adjudicating her children dependent and relinquishing the court's jurisdiction. The Fifth District Court of Appeal agreed with Mother and found that the trial court committed reversible error in failing to hold a disposition hearing. The matter was remanded for a disposition hearing pursuant to Fla. Statute § 39.521.

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In the Interest of I.B., 2014 WL 3375933 (Fla. 5th DCA)

The Fifth District Court of Appeal (Fifth DCA) withdrew its previous opinion dated May 9, 2014 following review of a motion for rehearing by the adoption intermediary for the prospective adoptive parents (foster parents). The prospective adoptive parents appealed the trial court's order striking Mother's adoption consent. The Fifth DCA reversed the decision, finding insufficient evidence of duress. The matter was remanded for the trial court to consider any alternative basis for invalidating the adoption consent.

Mother originally informed the trial court that she intended to proceed with a private adoption of her child by a paternal aunt. The child had been placed in foster care with a different individual. At a later time, two of mother's relatives contacted the foster care liaison regarding mother's desire to have the foster parents adopt rather than the paternal aunt. The foster care liaison prepared an adoption consent form, which mother signed on two occasions. Mother and paternal aunt later sought to strike Mother's consent to adoption by the foster parents.

Mother testified that the foster care liaison came to the jail where mother was incarcerated at 10:00 P.M. Mother's attorney was not present and Mother did not know that the liaison was present on behalf of the foster parents. Mother further testified that she was told the adoption would be open but was not told what open adoption meant. Mother testified that no one explained the consent paperwork, provided her a copy, or informed her of right to revoke her consent within three days. This consent was later deemed to be invalid because it was not properly executed. A second consent was provided to Mother. Although her attorney was present for the signing of the second consent, mother was behind glass at the jail and did not speak to anyone regarding the consent. Mother testified that she felt pressured by her family and her attorney to sign the paperwork. Additionally, Mother testified that she would not have signed the consent without a promise of continued contact with her child.

The trial court found that mother did not understand what she was signing, felt pressured to sign the consent and, as a result, her consent was not voluntary.

Pursuant to Fla. Statute § 63.082(7)(f), if the three-day revocation period for consent has passed, consent can only be set aside when the court finds that it was obtained by fraud or duress. The party seeking to set aside the consent, in this matter the paternal aunt, bears the burden of proving duress by clear and convincing evidence.

The Fifth DCA agreed with the foster parents that there was insufficient evidence to support a finding of duress. The Fifth DCA remanded the matter to the trial court to determine whether evidence supported striking the consent based upon the impact of any of the procedural violations noted by the trial court. Failure to meet a requirement of the adoption statute does not in and of itself constitutes grounds to strike a consent "unless the extent and circumstances of such a failure result in a material failure of fundamental fairness in the administration of due process, or the failure constitutes or contributes to fraud or duress in obtaining a consent to adoption." Fla. Statute § 63.2325.

The Fifth DCA held that evidence was insufficient to prove duress as a basis to set aside mother's consent to adoption and reversed the trial court's order striking the mother's consent to adoption form.

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J.O. v. Department of Children and Families, 2014 WL 3534231 (Fla. 5th DCA)

Father appealed the trial court's decision finding his son dependent. Although the Fifth District Court of Appeal (Fifth DCA) affirmed most of the dependency order, the Fifth DCA reversed the portion of the decision that prohibited all contact between Father and son until Father's release from incarceration. All contact, including telephonic, was prohibited by the trial court without any finding to support no contact.

The Fifth DCA remanded that case for further proceedings regarding continued contact between Father and child.

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J.H. v. Department of Children and Families, 2014 WL 3559381 (Fla. 5th DCA)

The Department of Children and Families appealed denial of its petition for termination of parental rights. The Fifth District Court of Appeal (Fifth DCA) affirmed the trial court's decision but issued its opinion without prejudice, specifically granting the Department permission to refile for termination of parental rights if Father is sentenced to a significant prison sentence for his pending criminal charges.

The Fifth DCA noted that a significant prison sentence would require the trial court to determine whether termination of parental rights is the "least restrictive means to protect the child." The least restrictive means test is properly utilized when a lack of meaningful relationship between the parent and the child is caused by the parent's criminal background.

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H.C. v. Department of Children and Families, 2014 WL 3805524 (Fla. 5th DCA)

The mother appeals the final order entered by the trial court denying her motion to re-open her children's dependency case in order to modify the trial court's previously entered order placing children in permanent guardianship with their paternal grandparents.

The Fifth District Court of Appeal affirmed the trial court's order because, contrary to the mother's claim otherwise, it is the parent's burden of proving that the safety, well-being, and physical, mental, and emotional health of the child(ren) would not be endangered by reunification; the Department of Children and Families has no burden of proof in reunification proceedings.

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