Recent Case Law Update on Parental Rights and Legal Representation

1. Chapter39 Case Law Update May 2010 March 2010 www.GuardianadLitem.org

2. Defense Counsel Justice Administrative Com'n v. Harp, 24 So.3d 779 (Fla. 5th DCA 2009)Trial court is not statutorily authorized to appoint counsel to a parent who has executed a voluntary written surrender of his or her parental rights. The mother signed surrenders before petition filed, then the trial court appointed counsel for the termination of parental rights. Justice Administrative Com’n (JAC) refused to pay for an attorney for the TPR where the mother signed a voluntary surrender. Court agreed with JAC.

3. Defense Counsel Justice Admin. Comm’n v. Berry, 5 So.3d 696 (Fla. 3d DCA 2009) Trial court cannot determine putative fathers to be indigent where their whereabouts were unknown and they did not appear at termination proceedings; there is no law requiring appointment of counsel for parent who does not appear for termination proceeding, and trial court departed from essential requirements of law in requiring JAC to pay fees for attorneys appointed to represent putative fathers.

4. Defense Counsel C.L.R. v. Department of Children and Families, 913 So.2d 764 (Fla. 5th DCA 2005) Even though still considered a “party” to the proceedings, an uncharged parent has statutory right to notice but NOT to appointed counsel.

5. Permanency Decisions Permanent Guardianship – Specific Findings of Endangerment C.A. v. Department of Children & Families, 27 So.3d 241 (Fla. 4th DCA 2010) Mother’s motion for reunification was denied and the child was placed in permanent guardianship. The Fourth DCA REVERSED holding that the trial court did not make specific findings of endangerment.

6. Permanency Decisions Non-offending Parent – Substantial Compliance with Case Plan M.M. v. Department of Children and Families, 29 So.3d 1200 (Fla. 5th DCA 2010)Mother moved for reunification under §39.521 arguing that she was in substantial compliance with her case plan. Although DCF agreed, the trial court never addressed case plan compliance but placed children with non-offending Father and terminated jurisdiction. The Fifth DCA reversed: “This court has repeatedly held that it is reversible error to permanently award custody to a nonoffending parent when the offending parent has a case plan goal of reunification and has either substantially complied with the plan, or where the time for compliance has not yet expired -- at least without a finding that reunification would be detrimental to the children.” Remanded for determination if Mother substantially complied with her case plan.

7. Permanency Decisions Specific Findings of Fact Required – Permanent Guardianship R.T., Sr. v. Department of Children and Families, 27 So.3d 195 (Fla. 5th DCA 2010).Father appealed order which terminated service and placed child in permanent guardianship. The fifth DCA reversed the trial court’s order, finding that there were insufficient findings to support permanent guardianship. There must be specific findings of fact in order placing child in permanent guardianship. It is not enough for a trial court’s order to refer to general problems or previous findings.

8. Termination of Parental Rights Putative Father Registry D.M. v. Department of Children and Families, 31 So.3d 945 (Fla. 5th DCA 2010) Mother’s TPR reversed and remanded because DCF failed to follow through with checking the putative father registry on the named Father. Fifth DCA held “This may have been considered a formality under the circumstances of the case and it may turn out to be a formality, but it is a formality that must be observed. Otherwise, there is a risk of unnecessary judicial labor and delay in permanent placement of the child.”

9. Termination of Parental Rights No Right to Jury Trial – No Error if Child Not Present W.S. v. Department of Children and Families, 31 So.3d 329 (Fla. 4th DCA 2010) If court finds not in child best interest to attend TPR, no error in failure to be present. Also, there is no right to jury trial, because TPR is NOT criminal in nature and thus, protections are not available.“We have addressed this issue because we have seen it raised in other briefs, not because of its merit. Indeed, for the many reasons outlined by our supreme court in S.B., we agree that termination proceedings do not require all of the protections of a criminal trial. A jury trial for termination proceedings would be highly detrimental to the child, the focus of the state’s concern.”

10. Surrenders A.C. v. Department of Children and Families, --- So.3d ----,2010 WL 1460207 (Fla. 3d DCA 2010). The mother surrendered children. Mother sought to vacate surrenders, claiming fraud, duress and/or mistake, because person she thought would adopt her children, changed their mind. Trial court held a hearing and found that during colloquy, court specifically inquired and said that no guarantee that child would be adopted by current caretaker. The Third DCA held that there was no evidence of fraud duress or mistake.

11. Notice - Case Plan Changes R.N. v. Department of Children and Families, 25 So.3d 697 (Fla. 5th DCA 2010). Father was noticed for hearing to change visitation based on act of domestic violence in front of his children. At the hearing, DCF moved to amend case plan. Father said this was a due process violation because he had no notice of case plan amendment. Fifth DCA held that no notice was needed. Statute and rule changed in 2007 to remove notice requirement for case plan amendment except that he was on notice about motion to change visitation as well as any other relief necessary and reasonable to protect the children.

12. Issues at Shelter P.U. v. Department of Children and Families, 24 So.3d 706 (Fla. 4th DCA 2009) The trial court’s shelter order was reversed because it was based on the mother living with friends where the child was sexually abused. However, no evidence presented to the trial court that the mother failed to protect the child or that the mother should have or could have foreseen the sexual abuse. The mother acted appropriately following the incident by reporting it immediately and moving from that residence. Homelessness not enough. L.M.B. v. Department of Children and Families, 28 So.3d 217 (Fla. 4th DCA 2010) Mother was not permitted to present evidence at shelter hearing because the court determined that it had a “policy of determining probable cause for removal from the “four corners” of the verified shelter petition.” Rule 8.305(b)(3) says probable cause determined at a non-adversarial hearing but (4) says that “all interested persons shall have an opportunity to be heard and present evidence. The Fourth DCA held that if the trial court did not give parents an opportunity to be heard, that is a violation of due process.

13. Rights of Non-Relatives L.D. v. Florida Department of Children and Families, 24 So.3d 754 (Fla. 3d DCA 2009) Reminder that non-relatives basically have no rights. FACTS: child in permanent guardianship with non-relative for 2 years. The mother substantially completes her case plan and everyone agrees she should be reunified, but worried she won’t let the child see her guardians. Court orders visitation with guardians. The Third DCA REVERSED holding that a non-relative has no right to visitation

14. No Valid Case Plan In re E.C.,--- So.3d ----, 2010 WL 1049937 (Fla. 2d DCA)Parents’ rights terminated due to case plan non-compliance. §39.806(1)(e). Five children adjudicated dependent when sixth child is born and later adjudicated dependent. However, the case plan filed and accepted after this last adjudication failed to name the sixth child. No dispute that parents failed to substantially comply with tasks and TPR was granted as to this sixth child. On appeal, parents argue that error in terminating parental rights pursuant to (e) because no valid case plan naming sixth child. Second DCA: Parents raising this issue first time on appeal so they must prove fundamental error. Because parents acknowledged existence of case plan and requirements of completion (in judicial reviews and at trial) the failure to list the sixth child on the case plan was a technicality that did not warrant reversal of TPR.

15. Abandonment-Need a Case Plan? Depends on your Jurisdiction • Yes, if you are in the Fifth DCA • C.A.T. v. Department of Children and Families, 10 So.3d 682 (Fla. 5th DCA 2009). Father never given a reunification case plan. He appealed TPR based on abandonment. Fifth DCA: LRM not satisfied because DCF did not make reasonable efforts to rehabilitate father and reunite him with child. Please note: evidence of bond between father and child (from GAL). • No, if you are in the Fourth DCA • C.A.H. v. Department of Children & Families, 830 So.2d 939 (Fla. 4th DCA 2002) Mother never given reunification case plan. She appealed TPR based upon abandonment. COURT: LRM satisfied without case plan. This is not an “ordinary” case under Padgett.

16. §39.806(1)(l) Retroactivity K.J. ex rel. A.J. v. Department of Children and Families, --- So.3d ----, 2010 WL 1477567 (Fla. 1st DCA). The mother appealed the trial court’s order terminating her parental rights. The trial court’s termination order was based upon § 39.806(1)(c) and § 39.806(1)( l ). Section 39.3806(1)(l), which took effect on July 1, 2008, provides that parental rights may be terminated if “[o]n three or more occasions the child or another child of the parent or parents has been placed in out-of-home care pursuant to this chapter, and the conditions that led to the child's out-of-home placement were caused by the parent or parents.” Majority did not discuss issue. BUT in concurrence, addressed mom’s argument that several of the removals occurred before the existence of this provision and thus she did not have notice of the possibility of termination (issue of retroactivity). Stating that the Mother had no “vested right in the Legislature never reevaluating how to protect children in the state of Florida.”

17. Incarceration How Much is Substantial Portion of Time? • J.W.B. v. Department of Children and Families, 8 So.3d 1191 (Fla. 5th DCA 2009) • Father's incarceration from the time child was 16 months old to the time child would be 12 years old, 60 percent of the time before child would reach 18 years of age, was a “substantial portion” of the time before child attained the age of 18 years.

18. Single Order Adjudicating Dependency P.S. v. Department of Children and Families, 4 So.3d 719 (Fla. 5th DCA 2009).Cannot issue second dependency order addressing second parent. Instead, pursuant to §39.507(7) the court must supplement the original dependency order with findings addressing whether the second parent abused, abandoned or neglected the child(ren).

19. Child Hearsay T.O. v. Department of Children and Families, 21 So.3d 173 (Fla. 4th DCA 2009). Child hearsay statements admitted regarding domestic violence and sexual abuse despite the fact that when the child took the stand she could recall NONE of the abuse. Fourth DCA affirmed the termination of parental rights order, finding that despite her unavailability at trial, there was sufficient corroborating evidence of both the sexual abuse and the domestic violence. The corroborating evidence of the sexual abuse was the therapist’s testimony that the child suffered from post-traumatic stress disorder as the result of either exposure to sexual activity or sexual abuse. The corroborating evidence of the domestic violence was testimony that when the child saw her father (the perpetrator) at a visitation she appeared extremely afraid and upset. This evidence tended to prove that she witnessed violence by the father.

20. Paternity • Shuler v. Guardian Ad Litem Program,17 So.3d 333 (Fla. 5th DCA 2009). Mother and legal father (married to mom at time of birth) have their parental rights terminated by default. Biological dad comes to court and claims paternity. Trial court told him to file paternity claim, but he waits until after termination of parents’ rights to do so. GAL moves for child to placed for adoption with custodian. Trial court grants motion. • Court of appeal affirms. Biological dad has no rights unless found to be the father via a paternity action. Because he sat on his rights until termination, he forfeited them. • “The statute plainly contemplates that, once the parental rights of the legal parents are terminated, the child is to be placed in DCF custody for the purpose of adoption. The statute does not contemplate that a child who becomes adoptable when his or her legal parents' parental rights have been terminated, can somehow become unadoptable when someone else then claims to be the child's biological father. • In issuing our ruling we recognize that if a man who impregnates a married woman were permitted to assert a claim to the child after the legal parents' parental rights were terminated, that claim would be open-ended perhaps leaving children who might otherwise be adopted without families.”

21. Least Restrictive Means N.S. v. Department of Children and Families, --- So.3d ----, 2010 WL 1875624 (Fla. 3d DCA).Parent’s challenge to termination of parental rights based upon the existence of a permanent guardianship with a relative is dismissed by Third DCA which found: “The existence of possible placement with a relative is irrelevant to the least restrictive means test, where DCF made reasonable efforts to rehabilitate the Mother and provide services to her and her children with the goal of reuniting them as a functional family.” (Also, good case for TPR of a low-functioning parent) B.B. v. Department of Children and Families, 13 So.3d 183 (Fla. 5th DCA 2009) “However, the fact that a long-term placement with a relative exists does not preclude terminating a parent's rights. The least restrictive means test requires DCF to make a good faith effort to rehabilitate the parent and reunite the family through a case plan before terminating a parent's rights.” .