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Florida Guardian ad Litem

Legal Briefs Newsletter 
August 2016 

Note from Alan Abramowitz
Ineffective Assistance of Counsel    
Being a child's voice as a guardian ad litem is much more than visits, court reports and telephone calls. The GAL Program is guided by the mantra - the child's best interest is our only interest. That mantra is as true in the courtroom as it is in the legislature, or the many committees and organizations our staff and volunteers participate in every day. In addition to being a voice for children in court, we advocate for legislative changes that are in the child's best interest; for the rules and policies that govern how attorneys and judges handle cases to be in the child's best interest; and case law that supports the best interests of children. That is why I am so proud of the Program's efforts regarding a proposed rule change governing claims of Ineffective Assistance of Counsel. The rule will establish a procedure for parents to challenge whether their court-appointed attorneys performed so deficiently that they changed the outcome of a TPR trial. The Program wanted to make sure the procedure did not add unnecessary delays in permanency for Florida's dependent children.

Our Program filed a comment to this proposed rule change because we wanted to ensure the voices of Florida's dependent children were considered with any possible changes in Rules of Juvenile Procedure. As all of us who work in the dependency system know - time is precious in a child's life. The Florida statutes, the Department, Judges and the federal government- recognize that timely permanency for children is critical. So in recognizing the importance of a parent's Ineffective Assistance of Counsel claim, it is also important to consider that such proceedings will inevitably delay permanency for children who have already gone through so much - removal from their homes, waiting for their case plans to be completed, lengthy and uncertain TPR hearings, and waiting for the final court determination that will vastly alter the rest of their lives.

The Program supported a proposal that allows only indigent parent's appointed counsel by the state to make such a claim. This approach was approved by the Select Committee tasked with creating a compromise among Judges, Department representatives, child advocates, and other stakeholders. We also advocated for additional provisions to ensure a sensible approach that protects parents' due process rights, establishes clear standards, and requires the short timeframes so important to the children we advocate for every day.

Our Program gives children a voice in many ways, and I am proud of the attorneys in our Program who work hard to make sure children's interests in timely permanency are at the forefront of the discussion of this very important issue.  

Alan' Signature

Third District Court of Appeal
F.G. v. Department of Children and Families,192 So.3d 1250 (Fla.1st DCA 2016)

This is another decision involving the family at issue in F.G. v. Department of Children and Families, 2016 WL 3178527 (Fla. 3rd DCA) , which was summarized in the last Legal Briefs Newsletter. Following that decision, the Department presented a motion for rehearing or clarification regarding the May 2016 decision. The Third District Court of Appeal (Third DCA) denied rehearing but granted the motion for clarification and issued this opinion in its place.

As in its May 2016 opinion, the Third DCA focused on the need for all parties and judges to endeavor to identify related cases in order to avoid inconsistent opinions. Administrative Order AO3D13-06 directs counsel to file "Notice of Similar or Related Case" within ten days of receipt of the clerk's acceptance of a new case. With regard to the instant cases, neither parent filed such notice.

Reviewing the underlying facts of the related cases, the Third DCA agreed that the case was "tragic and difficult" and that reasonable judges can reach different conclusions.   However, the findings in both cases included reference to "the parents," and the Third DCA saw no basis to differentiate between the two cases.
In the Interest of F.J.G.M., 2016 WL 3974568 (Fla. 3rd DCA)

This case is another in the recent line of cases involving private dependency petitions filed in part to assist in petitioners seeking Special Immigrant Juvenile (SIJ) status. F.J.G.M. filed a motion for rehearing and request for a written opinion following the Court's August 12, 2015 per curium opinion. The Third District Court of Appeal (Third DCA) denied the motion for rehearing but granted the request for a written opinion. The Third DCA affirmed the trial court's order denying F.J.G.M.'s private dependency petition.

F.J.G.M. sought an adjudication of dependency solely on abandonment by Father, ten years prior. As in other recent cases, the Third DCA found the abandonment by Father too remote in time. Due also to the lack of any evidence that F.J.G.M. was at current risk of abuse, neglect or abandonment by Mother, the Third DCA affirmed the trial court's denial of the petition based on abandonment by Father.

Although this opinion largely cites to other recent decision, In re S.A.R.D., 182 So. 3d 897 (Fla 3d DCA 2016), I n re K.B.L.V., 176 So. 3d 279 (Fla. 3d DCA 2015), and In re B.Y.G.M., 176 So. 3d 290 (Fla 3d DCA 2015), the Third DCA reaffirmed the view that the SIJ provisions were intended to protect abused children who, with their families, illegally entered into the United States. By granting the children protected status, they are protected from being deported with their abusive or neglectful parents. The Third DCA noted that expanding the purpose of the Act encouraged illegal immigration. The majority opinion also directly addressed the dissent regarding the trial court's failure to hold an evidentiary hearing or to make specific findings of face. Although the Third DCA agreed that some cases might require a hearing and specific findings, the instant case involved no disputed facts. Based upon the undisputed facts, F.J.G.M. was not a dependent child.

The dissent found instead that F.J.G.M.'s petition alleged a prima facie case that should not have been summarily denied. Judge Salter noted that the "remoteness of time" analysis that Florida courts have applied to remote and specific acts of abuse or neglect is not necessarily applicable to ongoing abandonment over many years. There is no Florida case that holds that, as a matter of law, that long term abandonment cannot support an adjudication of dependency with respect to a parent.

Since F.J.G.M.'s petition was considered by the trial court, the Department changed their policy with regard to the treatment of SIJ cases. The Department no longer refuses to participate or take a position on these cases. The Department did not investigate F.J.G.M.'s allegations and Judge Salter noted the Department's services might be necessary to ease the child's reunification with his Mother and cope with Father's abandonment.
Fourth District Court of Appeal
Department of Children and Families v. B.G., 192 So.3d 1256 (Fla. 4th DCA 2016)

The Department appealed dismissal of the dependency petition, which asserted a positive drug test at birth led to an imminent threat of abuse. The Fourth District Court of Appeal (Fourth DCA) reversed and remanded.   Citing to Florida Statute § 39.01 (15)(f) and (30)(g)(1), the Fourth DCA held that a "substantial risk of imminent abuse" is grounds for dependency, that abuse can result from a willful act resulting in harm and that harm can be established by a positive drug test at birth.
A.G. v. Department of Children and Families, 193 So.3d 1097 (Fla. 4th DCA 2016)

Father appealed dependency orders regarding his infant daughter, K.G. The Fourth District Court of Appeal (Fourth DCA) found three errors in the trial court's decision, reversed the dependency order and vacated the disposition order as to Father.

The dependency petition alleged that A.J. and K.G. were at risk due to domestic violence between Mother and Father of K.G. Specifically, the petition alleged that Father pushed Mother and A.J. out of a car, took Mother's phone, shoved her and physically restrained her and either threw a table at A.J. or threw A.J. on a table. There were no allegations that K.G. was abused, neglected or present during the alleged incidents.

The first error involved a motion from the Department to take A.J.s testimony in camera. The court granted the motion based solely on counsel for the Department's argument that there was a substantial likelihood that A.J. would suffer emotional or mental harm testifying in open court. Pursuant to Fla. R. Juv. P. 8.255(d), the court cannot set restrictions on the method of examining a child witness without making factual findings following an evidentiary hearing.

The second error was in finding A.J. competent to testify. Citing Rodgers v. State, 113 So.3d 761 (Fla.2013), the Fourth DCA found that the trial court did not ascertain whether A.J. had sufficient intelligence to observe and recollect facts and relate those facts to the court in a narrative fashion. A.J.'s testimony did not have a single narrative response. It included mainly responses of "uh'huh," "nuh'uh" and "non-verbal responses" over a 20 minute span. On remand, the Fourth DCA instructed the trial court to conduct a thorough competency inquiry and examine the following three questions:

(1) Is the child capable of observing and recollecting facts?
(2) Is the child capable of narrating these facts to the court? and
(3) Does the child have a moral sense of obligation to tell the truth?

The third error was in entering A.J.'s statements to a Child Protective Investigator under the child-victim hearsay exception. Pursuant to Florida Statute § 90.803(23), the court must conduct an evidentiary hearing to ascertain the reliability of a child's out of court statements prior to admission of child-victim hearsay.
Child Hearsay Training Available on the GAL Program Website

CHILD HEARSAY, Charles W. Ehrhardt, Ladd Professor of Evidence, Florida State University College of Law

Child Hearsay Training
S.R. v. Department of Children and Families, 2016 WL 3919070 (Fla. 4th DCA)

Father appealed a final order placing his children in a permanent guardianship and terminating protective supervision. The Fourth District Court of Appeal (Fourth DCA) reversed and remanded, finding merit in Father's argument that the trial court failed to make the required statutory findings in its written order.

Pursuant to Florida Statute § 39.6221 (a) and (c), the trial court must "list the circumstances or reasons why the child's parents are not fit to care for the child and why reunification is not possible by referring to specific findings of fact made in its order adjudicating the child dependent or by making separate findings of fact" and "specify the frequency and nature of visitation or contact between the child and between the child and his or her parents." Instead of making specific findings, the trial court made only generic statements regarding the need for continued out of home placement.
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