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Florida Guardian ad Litem

Legal Briefs Newsletter 
June 2016 

Note from Alan Abramowitz
Exec utive Director of the Florida Statewide Guardian ad Litem Office

Thank you to all who attended the 2016 Guardian ad Litem Disabilities Training Conference.  For those who were unable to attend, you can watch a video of each workshop and keynote on the Florida Statewide Guardian ad Litem Website.  If you are an attorney, there are 45 CLE credits available for you to submit to the Florida Bar.  Click here for the videos.
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Second District Court of Appeal
In re Le.H., 2016 WL 3001283 (Fla. 2nd DCA)

Both the parents and the Guardian ad litem Program filed petitions for a writ of certiorari to review an order sheltering one child but denying to shelter his siblings. The Second District Court of Appeal (Second DCA), denied the parents' petition but granted the GAL's petition and quashed the portion of the order denying to shelter the siblings.
The Department became involved with the family after Mother brought Le.H., when he was two months old, to the hospital for a fever and congestion. A chest x-ray showed Le.H. had five fractured ribs at different stages of healing. Mother denied injuring Le.H. or knowing how he could have been injured. Le.H's twin and 2 year old non-verbal sibling did not have any injuries. The three children had been in the care of Mother, Father and maternal grandmother. The Department requested shelter of all three children based upon the injuries to Le.H. The trial court ordered shelter of only Le.H. after finding no signed of physical abuse to the siblings and concluding there was no risk of potential harm.
The Second DCA found that the trial court failed to apply the proper probable cause standard in deciding whether to shelter the siblings after finding probable cause to shelter Le.H. Citing to the Department of Children and Family Services v. K.D., 88 So 3d 977 (Fla. 2d DCA 2012), the Second DCA found that the unexplained abuse of one child and the substantial risk to a sibling can warrant removal of both children. In both K.D. and the instant case, the siblings were identically situated and equally susceptible to the same abuse.
Third District Court of Appeal
B.J. v. Department of Children and Families, 2016 WL 1578492 (Fla. 3rd DCA)

Mother appealed an order of adjudication and disposition of dependency. The Third District Court of Appeal (Third DCA) reversed adjudication.
Mother and Father were spending the weekend in a hotel with their two children. Mother co-slept with the children, while Father slept on a pull-out sofa. Mother awoke and found their 4 month old child cold and unresponsive. The parents called 911 but the child was not revived. The hotel room was messy and cluttered with food cartons. After child protective services interviewed the family, the parents left their one year old daughter, A.G., downstairs with a friend that was sleeping and went upstairs to smoke marijuana. Child protective services sporadically tried to reach the parents but they never responded. A month later, child protective services filed a report seeking a pick up order for A.G. When she was found, A.G. appeared healthy and there were no indications of abuse. At the shelter hearing, the trial court found that the totality of the circumstances (the dirty hotel room, the parents' admission to smoking marijuana and the apparent evasiveness) and the mother's decision to continue to co-sleep indicated that A.G. was at risk of neglect.

Pursuant to Florida Statute § 39.01(14)(a) and (f), a dependent child is one who has been "abandoned, abused or neglected" by the parents or is found "[t]o be at substantial risk of imminent abuse abandonment or neglect." The parents' behavior must be a present threat to the child. B.C. v. Department of Children and Families, 846 So.2d 1273 (Fla. 4th DCA 2003).

The Third DCA found no competent substantial evidence in the record to find that A.G. was abandoned, abused or neglected or at risk of imminent abandonment, abuse or neglect. The medical examiner found the cause of the sibling's death was SIDS with co-sleeping as a possible factor (emphasis in the original). Both the state of the hotel room and the evasiveness of the parents had other possible explanations and were not evidence of abuse or neglect.
F.G. v. Department of Children and Families, 2016 WL 3178527 (Fla. 3rd DCA)

This opinion involves the same family and same underlying case that is involved in the above opinion. Father and Mother filed separate appeals of the adjudication of A.G. The Third DCA did not realize the cases were related. Father's appeal was denied in December 2015. Mother's, as noted above, was granted and the order of adjudication was reversed. Father then filed an emergency motion to recall mandate. The Third DCA granted Father's emergency motion, vacated the per curiam affirmance from December and reversed adjudication of dependency as to Father.

The Third DCA noted the need for all parties to comply with Administrative Order AO3D13-06 and file a Notice of Similar or Related Case. Although all counsel and judges review a high number of cases each year, the Fifth DCA utilized this opinion to remind everyone involved that they all must work to identify related proceedings to avoid inconsistent results and promote judicial efficiency.
E.G. v. Department of Children and Families, 2016 WL 2731654 (Fla. 3rd DCA)

E.G., a 15 year old dependent youth, petitioned the court for a writ of certiorari quashing portions of an order directing E.G. to "voluntarily" enter into residential drug treatment, abstain from illegal drugs, and abstain from running away.

Mother had filed a motion to have E.G. removed from her home and returned to foster care. E.G. was ordered to "voluntarily submit himself to inpatient treatment" and while in foster care "shall abstain from drugs, alcohol use, and shall not run away from placement" and "shall submit to daily/random drug testing."

Florida Statute § 39.601 governs voluntary admission into substance abuse treatment facilities. The Third DCA found this statute addresses situations where individuals choose to enter into treatment under their own volition but does not authorize a court to order a person to voluntarily enter into treatment. E.G. had a history of emotional and behavioral difficulties and was assessed on three separate occasions for residential placement pursuant to Florida Statute § 39.407. Each assessment found that E.G. was not suitable for residential placement.

The Third DCA found no statutory authorization or explanation in the record for indefinitely recurring drug testing. As to abstaining from drug use, the Third DCA noted the lack of explanation or purpose for the order and expressed concern as to future use of the contempt power. Finally, the Third DCA held that nothing in Florida Chapter 39 provides authorization to order a child not to run away.
Fourth District Court of Appeal
M.D. v. State, 187 So.3d 1275 (Fla. 4th DCA 2016)

Father appealed termination of his parental rights which was based on abandonment. The Fourth District Court of Appeal (Fourth DCA) affirmed termination.

Father was incarcerated at the time of the termination trial and had been incarcerated for the two years prior to the trial. Father testified at trial that the last time he saw his child was when she was two years old, two years prior to the termination trial. Evidence was presented by the Department that during Father's incarceration he sent his daughter only two letters. Although Father contradicted this testimony saying that he wrote weekly letters, he could only produce 8 letters and no evidence that any of them had been sent.

The Fourth DCA cited to J.G. v. Department of Children and Families, 22 So.3d 774 (Fla. 4th DCA 2009), which held that the appellate court's review of termination orders is limited to whether competent substantial evidence supports the trial court's judgment. In the instant case, the Fourth DCA found that the trial court's finding of abandonment was based on competent substantial evidence and that Father failed to maintain a substantial and positive relationship with his child.
B.G. v. Department of Children and Families, 189 So.3d 305 (Fla. 4th DCA 2016)

Mother appealed the trial court's Order Relinquishing Jurisdiction of this Court as to the Child. The Fourth District Court of Appeal (Fourth DCA) vacated the order and remanded for further proceedings.

Mother had custody of the child pursuant to a Domestic Relations case and Father resided in Texas. Their child was placed in shelter after a domestic violence incident between Mother and her boyfriend.   At the shelter hearing, the child was placed with Father in Texas. Mother's counsel raised the issue of lack of ICPC compliance at the Dependency Petition hearing. The Department had not performed an ICPC home study on Father's residence prior to placement. The Department and the GAL argued that the child had been placed with Father by virtue of the shelter order and the only way to maintain such placement, citing ICPC Regulation: AAICPC Regulation No. 2(3)(a), was to relinquish jurisdiction of the child.   The trial court agreed with the later argument and dismissed the case.

The Fourth DCA found that the trial court erred in several respects. First, a shelter placement is by definition temporary and cannot be used to abrogate Mother's award of custody in the Domestic Relations matter. Second, ICPC cannot be avoided simply by relinquishing jurisdiction. The Fourth DCA held that the Department was required to comply with ICPC because Father was the non-custodial parent as ordered by the Domestic Relations Court. Although the ICPC regulations arguably allow a state to "skirt the ICPC requirements in some circumstance," the regulation was not adopted into law by the State of Florida. Relinquishing jurisdiction and not following through with the ICPC home study both deprived Mother of her due process rights and could have placed the child into an unsafe home.
B.B.S. v. Rodriguez-Murguia, 2016 WL 2744994 (Fla. 4th DCA)

This case involves a child support matter and not a dependency matter but the issue in question could pertain to dependency matters. The appellants (the Children) appealed a trial court order dismissing their cause of action to determine maternity.   The Fourth District Court of Appeal (Fourth DCA) reversed and remanded for further proceedings.

The Children's mother used a false name on their birth certificates because she was in the county illegally. Although Mother later attempted to correct the Children's birth certificates, she was denied and informed she needed court orders to change the birth certificate.

The Fourth DCA noted that both the United States Supreme Court and the Florida Supreme Court recognize the fundamental rights of parents. Such fundamental rights are based on a determination of maternity. Because the Children's request for a determination of maternity was made in conjunction with a child support matter, the dispute was found to be dependent on a determination of maternity.

Fifth District Court of Appeal
S.M. v. Department of Children and Families, 188 So.3d 982 (Fla. 5th DCA 2016)

Father appealed termination of his parental rights to T.H. The Fifth District Court of Appeal (Fifth DCA) affirmed termination.

When T.H. was two years old, Father was found guilty by reason of insanity of homicide and involuntarily committed. He remained institutionalized almost continuously since then. T.H. was adjudicated dependent in 2011. Four years later, T.H. began having monthly visits with Father in the state hospital. Testimony at the termination trial was that Father needed continued hospitalization and would not be considered for release due to his aggression and the threat to himself and others.

The Fifth DCA found multiple statutory grounds to base termination of Father's parental rights. The Fifth DCA did note that one subsection however, Florida Statute § 39.806(1)(e), only appeared to address the Mother's actions and was not pled in the petition as to the Father. The case was remanded to amend the final judgment accordingly.

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