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Florida Guardian ad Litem
Legal Briefs Newsletter
January 2015
A Note from Alan Abramowitz  

 

This year the Guardian ad Litem Program celebrates 35 years of child welfare advocacy. The numbers of children we have helped give a voice to in court is remarkable. In the past years we have had 30,000 GAL volunteers and we have represented the best interests of over 200,000 of Florida's abused or neglected children. This year, our Program will have over 10,000 volunteers working tirelessly to give a voice to Florida's children. We understand that children who have a GAL are more likely to find a safe, permanent home and receive more services. They are also more likely to have a consistent, responsible adult presence in their lives, spend less time in foster care, have increased placement stability, and have better educational outcomes.

Although we have a team of many we focus on one child's needs. We understand the value of listening, mentoring, advocating, teaching, investigating, and connecting - with one child. We believe in encouraging partnerships, collaboration and team work toward the common goal of safety and permanency for Florida's most vulnerable children. More than ten thousand volunteers, 175 attorneys, 350 Child Advocate Managers, 20 Circuit Directors, GAL staff and thousands of children - but we work together as one team to make sure the voice of one child is heard.

 

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

J.B. v. Department of Children and Families, 2014 WL 4976981 (Fla. 1st DCA)

Mother appealed termination of her parental rights claiming she was denied effective assistance of counsel. The First District Court of Appeal (First DCA) affirmed the termination but addressed the current standard for determining ineffective assistance of counsel and the procedure for raising an ineffective claim. The First DCA certified both issues.

 

Mother asserted a number of concerning issues with her counsel including filing of an untimely motion for a continuance to investigate paternity, stating during opening statements that he was exhausted and unprepared, incorrectly stating the facts of the case, allowing hearsay in without objection, failing to file a witness list, objecting to Mother presenting a witness, failing to cross-examine or object to the guardian ad litem's testimony or report, failing to address Mother's claim that a relative placement should have been utilized, misleading the court during closing argument and failing to object to the trial court's failure to advise Mother of advocacy services.

 

The First DCA cited L.W. v. Department of Children and Families, 812 So. 2d 551 (Fla. 1st DCA 2002), which adopted the criminal standard of ineffective assistance of counsel set forth in  Strickland v. Washington, 446 US 668 (1984). "Thus, in order to establish ineffective assistance of counsel, the parent must establish that counsel's performance was deficient and prejudiced the parent, i.e., there is a reasonable probability that parental rights would not have been terminated absent counsel's deficient performance." Although the First DCA expressed serious concern regarding counsel for Mother's statements and behavior, the court found that Mother failed to show that "the ineffectiveness is obvious on the face of the appellate record, the prejudice caused by the conduct is indisputable, and a tactical explanation for the conduct is inconceivable." Corzo v. State, 806 So. 2d 642, 645 (Fla. 2d DCA 2002).

 

The First DCA expressed concern for the lack of established procedure for a parent to make a claim of ineffective assistance of counsel in termination proceedings when additional fact finding would be needed. The First DCA urged the Supreme Court to create a rule adopting a new procedural mechanism.

 

Read the Opinion  

 

A.H. v. Department of Children and Families, 144 So. 3d 662 (Fla. 1st DCA 2014)

Mother appealed termination of her parental rights arguing the court's findings that she abandoned her child and that termination was the least restrictive means of protecting the child were erroneous. The First District Court of Appeal (First DCA) reversed termination solely on the issue that the trial court failed to find that termination was the least restrictive means of protecting the child from harm.

 

In May 2011, the child was taken into the Department of Children and Families' (department) custody and placed in foster care. Approximately one year later, the trial court gave foster mother permanent guardianship of the child.   A year and a half after the entry of guardianship, Mother filed a petition to reopen the matter. The department opposed the Mother's motion but the court reopened the case for the "sole purpose of [the department] filing a petition for termination of parental rights."

 

In order to terminate parental rights, the department must prove the existence of statutory grounds, that termination is in the best interest of the child and that termination is the least restrictive means of protecting the child from harm, citing A.H. v. Department of Children and Family Services, 85 So. 3d 1213-1215-16 (Fla. 1st DCA 2012). If the department does not prove there are no measures short of termination that could be used to protect the child, "than termination cannot pass constitutional muster." See J.B. v. Department of Children and Families, 107 So. 3d 1196, 1202 (Fla. 1st DCA 2013).

 

The First DCA held evidence presented at the trial court established permanent guardianship was in place for the child. There was no evidence presented that Mother's contact with the child pursuant to the guardianship terms created a risk of harm to the child. The child was bonded to the guardian, enjoyed visits with his biological family, and desired a continued relationship with his mother.

Read the Opinion  

 

Department of Children and Families v. C.T., 144 So. 3d 684 (Fla. 1st DCA 2014)

The Department of Children and Families (department) appealed a post dependency order finding that the Interstate Compact on the Placement of Children (ICPC) does not apply to the placement of children with out of state parents. The First District Court of Appeals (First DCA) agreed and reversed that portion of the order.

 

The children were placed in the physical custody of their maternal grandmother due to Father's drug use and neglect. During the trial court case, Father moved to Maryland and addressed the goals of his case plan. In a status hearing, the trial court found that Father had made progress on his case plan and would likely be reunified with the children by the end of the school year. Grandmother expressed unwillingness to care for the children in the future if the children were reunified with Father and removed again.

 

The trial court found no safety concerns with Father and relied on Department of Children and Families v. L.G., 801 So. 2d 1047 (Fla. 1st DCA 2001), which the trial court asserted held that ICPC does not apply when children are to be placed with out of state parents. The trial court ordered immediate reunification with Father, directing the department to supervise Father for six months and for Father to submit to random urinalysis.

 

The First DCA found that the trial court misinterpreted L.G. L.G. held that ICPC does not apply when the custodial parent that has lawful custody of the child and full authority to plan for the child chooses to relocate to another state. In the instant case, Father did not have lawful custody of his children or full authority to plan for the children. His custody and authority to plan was limited by the court having legal custody and responsibility to make decisions for the children. Therefore, ICPC did apply.

 

Read the Opinion

  


 

Second Circuit Opinions


In re A.W.J., 143 So. 3d 1109 (Fla. 2nd DCA 2014)

Both Mother and Father separately appealed an order adjudicating their child dependent based on physical abuse. The Second District Court of Appeal (Second DCA) reversed the adjudication order.

 

Father testified that he placed his 6 month old child in a Bumbo chair and went in the kitchen. Mother was not at home. While Father was in the kitchen, the child pushed the chair over backwards and hit his head on the concrete floor. Father contacted Mother, who returned with the car seat and they took the child to the hospital. Both the detective who investigated the matter and the child's pediatrician testified that the parents' story was consistent with their respective investigations. Neither witness had concern that the child's injuries were caused by abuse. Only one doctor testified that the child's injury was the result of abuse. She based her opinion primarily on her assessment of the parents' credibility rather than medical evidence.

 

The Second DCA found the doctor's testimony did not meet the competent substantial evidence standard as her testimony was not substantiated by other evidence and that her opinion was not offered within a reasonable degree of medical probability as to the mechanisms of injury. Additionally, with regard to the Mother, the Second DCA found that the department failed to introduce any evidence that mother caused injury to the child.

 

The Second DCA reversed the order.

 

Read the Opinion

 


Third Circuit Opinions

 

R.C. v. Department of Children and Family Services, 2014 WL 6679008 (Fla. 3rd DCA)

Mother petitioned the Third District Court of Appeal (Third DCA) for a writ of certiorari from a sua sponte order directing her to submit to a pregnancy test. The Third DCA quashed the order, finding that the trial court failed to provide Mother notice, and that there was no showing of good cause to support such an order.

 

The trial court ordered mother to submit to a pregnancy test, first on the court's belief it would be a violation of her case plan for her to become pregnant. After mother's counsel corrected that misconception, the trial court ordered the pregnancy test on the basis that if she is pregnant, "she's hurting her fetus by not getting prenatal care."

 

The Third District Court of Appeal (Third DCA) held that the trial court could not enter order compelling mother to take a pregnancy test.   The Third DCA stated that "a competent person has the constitutional right to ... refuse medical treatment," In re Guardianship of Browning, 568 So.2d 4, 11 (Fla.1990), and that right "can only be overcome if the state has a compelling state interest great enough to override this constitutional right." See Burton v. State, 49 So.3d 263, 265 (Fla. 1st DCA 2010) (quoting Singletary v. Costello , 665 So.2d 1099, 1105 (Fla. 4th DCA 1996)). No such analysis was done or attempted in this case.

 

Additionally, no prior notice had been given to Mother that a pregnancy test could be ordered. None of the information required by Rule 8.250(b) which sets forth when the court can have a person subjected to a physical or mental examination, was included in the court's written order or addressed on the record.

 

Read the Opinion

 

A.F. v. Department of Children and Families, 2014 WL 5151623 (Fla. 3rd DCA)
 

The Mother appealed the trial court's order terminating her parental rights arguing the trial court committed reversible error by appointing an attorney ad litem rather than appointing a guardian ad litem to represent the best interests of the child. The Third District Court of Appeal (Third DCA) held because the right to have a guardian ad litem appointed is a statutory right existing in the Child-not the Mother-and because the Mother did not object to the trial court's failure to appoint a guardian ad litem at any point in the nearly three years of proceedings ... the trial court's failure to appoint a guardian ad litem mandates reversal only if it was fundamental error. C.M. v. Dep't of Children & Family Servs., 854 So.2d 777, 779-80 (Fla. 4th DCA 2003). The Third DCA held that it was not reversible error for the following reasons:

  • The rules requiring the trial court to appoint a guardian ad litem for the child are in place to ensure that someone is representing the child's best interests free of conflict and to ensure that the facts of the case have been fully considered.

  • the child's attorney ad litem was appointed early in the proceedings;

  • when the child's attorney ad litem was appointed the trial court directed that she represent the best interests of the child; and

  • the record establishes that the child's attorney ad litem dutifully represented the child's best interests throughout the case.

Although the child's attorney ad litem appointment was titled as an attorney ad litem, it does not negate the fact that she fulfilled nearly all the functions required of a guardian ad litem.

 

The Third DCA affirmed the trial court's order stating that trial court's error in failing to appoint a guardian ad litem did not constitute fundamental error.

 

Read the Opinion
 

R.W. v. Department of Children and Families, 147 So.3d 631 (Fla. 3rd DCA 2014)

Father appealed termination of his parental rights. The Department of Children and Families (department) confessed error and the Third District Court of Appeal (Third DCA) reversed the termination of parental rights.

 

Although the trial court's written final judgment found abandonment as the basis for terminating Father's parental rights, the trial court orally pronounced, "I won't find abandonment." Citing B.C. v. Department of Children and Families , 864 So. 2d 486 (Fla. 5th DCA 2004), the Third DCA held that when there is a conflict between the written order and oral pronouncement, the oral pronouncement is controlling.

 

The trial court terminated Father's rights finding that his continued involvement in the parent child relationship threatened the safety and well-being of the child. However, this statutory basis was not included in the Department's petition.

 

Read the Opinion
 
 
A.A. v. Department of Children and Families, 147 So.3d 621 (Fla. 3rd DCA 2014)

Mother filed a petition for writ of certiorari for review of the trial court's denial of her motion to modify a permanency order and reunification with her children.

 

The children had been placed in a permanent guardianship with their stepfather and Mother had maintained supervised visitation. Mother sought to modify the order and reunify with her children. The trial court reopened the case and ordered a psychological evaluation of the Mother but ultimately denied Mother's petition without an evidentiary hearing. Mother requested a rehearing, which was denied.

 

The Third DCA agreed with Mother's argument that the trial court's failure to hold an evidentiary hearing denied her due process right to present evidence. Additionally, the trial court's order failed to include the required written findings of fact delineated in Fla. Statute � 39.621(10).

 

Read the Opinion

 
Fourth Circuit Opinions

E.R. v. Department of Children and Families, 143 So. 3rd 1131 (Fla. 4th DCA 2014)

B.B. v. Department of Children and Families, 145 So. 3rd 971 (Fla. 4th DCA 2014)

The Fourth District Court of Appeal (Fourth DCA) reversed the trial court's order adjudicating Mother and Father's children dependent. Specifically, the Fourth DCA (in E.R.) held that the trial court's finding that Mother "placed both the minor children at imminent risk of neglect and harm" was not supported by "competent, substantial evidence."


 

The underlying case was initiated after the children's paternal grandparents reported the children and the father missing. Father had obtained sole custody of E.B. after alleging that Mother would either ignore the child to the point of neglect or "commit inappropriate physical acts such as poking her unnecessarily causing trauma." Grandmother testified regarding similar concerns. The family court judge provided mother "no time sharing."

 

Approximately one year later, Father did not go to work or take the child to daycare and the grandparents could not reach father. The grandparents were concerned for Father in part due to his mental health history. The Department located Father, Mother and the children in a hotel room, where Father reported they were starting a family of their own away from the grandparents. The Department had no safety concerns for the children and found that the parents had what they needed to adequately provide for them. The mother had outstanding warrants. She was arrested and the children were taken into custody.

 

The trial court found the children to be dependent because "the mother placed both the minor children at imminent risk of neglect and harm." The court cited Mother's past mistreatment of E.B., her violation of the no time sharing order, her failure to contest the family court order and her homelessness and unemployment.

 

The Fourth DCA found that the allegations regarding E.B. which allegedly occurred 18 months prior to the dependency hearing were "too remote in time to support and adjudication of dependency." With regard to A.R. the only evidence presented was that mother took A.R. to be with the father and E.B. To adjudicate a child dependent, the court must be presented competent and substantial evidence that the child is in imminent risk of neglect and harm. No such evidence was presented.


 

In B.B., Father's appeal of the same case, the Fourth DCA reversed the finding of dependency for the reasons delineated in Mother's appeal. The Fourth DCA noted that the children were adjudicated dependent as to both parents on the basis of one hearing after which one order was issued.


Read the Opinion  E.R. v. Department of Children and Families 

Read the Opinion B.B. v. Department of Children and Families


 

E.H. v. Department of Children and Families, 147 So.3d 616 (Fla. 4th DCA 2014)

Mother appealed the dependency adjudication of her child, asserting the trial court's order was not supported by competent substantial evidence. The Fourth DCA affirmed the trial court's adjudication order.


 

Mother had a history of mental illness and domestic violence with father. Four years prior, mother had another child removed following allegations that mother said she was going to kill the child. Mother was involuntarily committed at that time. At the time of the adjudication trial for E.H., mother was homeless and living with father in a tent in the woods.


 

Citing E.M.A. v. Department of Children and Families , 795 So. 2d 183, 187 (Fla. 1st DCA 2001), the Fourth DCA found that "when a nexus is shown between the parent's mental disorder and a significant danger to the child[ren], the trial court is not required simply to wait idly until the abuse . . . occurs before adjudicating dependency." The Fourth DCA found that Mother's failure to recognize she had a mood disorder and failure to participate in services raised the level of risk to her child.

With regard to the history of domestic violence, the Fourth DCA found a substantial risk of imminent abuse to the child due to the likelihood of the violence occurring. When there is a pattern of abuse and the parents' relationship continues, prior incidents of domestic violence can support a finding of a present risk of harm. SeeR.M. v. Department of Children and Families, 886 So. 2d 329, 332 (Fla. 5th DCA 2004).


 
The Fourth DCA affirmed the trial court's adjudication order.


  

V.C.B. v. Shakir, 145 So.3d 967 (Fla. 4th DCA 2014)

Maternal grandparents appealed the denial of their petition to terminate Father's rights and adopt their grandchild. The trial court found that Father abandoned the child both financially and emotionally but that Father did not willfully disregard the minor child's safety. The trial court held that such a finding was necessary to terminate parental rights pursuant to Fla. Statute � 63.089(4)(a) and Beagle v. Beagle, 678 So. 2d 1271 (Fla. 1996). The Fourth DCA reversed the denial and remanded the matter to grant termination of parental rights and proceed with the adoption.

 

The Fourth DCA found that the trial court interpreted the definition of abandonment in Fla. Statute � 63.089(4) too narrowly. The trial court required a finding that the harm to the child had to be a willful disregard for the safety and well-being of the child. The statute however merely requires that the court consider willful disregard as one of several listed relevant factors. The Fourth DCA cited also to J.S. v. S.A., 912 So. 2d 650, 662 (Fla. 4th DCA 2005), where the court held that the "passage of time can be harmful to the well-being of a child" and a child deserves a stable home environment.

 

Moreover, the Fourth DCA distinguished Beagle, where the court declared a portion of the statute unconstitutional because it failed to require a showing of harm to a child. The underlying question in Beagle was limited to the narrow issue of grandparent visitation rights over the objection of a parent.

 

Read the Opinion  

 
Fifth Circuit Opinions

 

L.P. v. Department of Children and Families, 148 So.3d 832 (Fla. 5th DCA 2014)The Fifth District Court of Appeal (Fifth DCA) affirmed termination of Father's parental rights even though the children were not adjudicated dependent as to him because parental rights may be terminated without dependency when abandonment is proven.

Read the Opinion

C.B. v. Department of Children and Families, 148 So.3d 833 (Fla. 5th DCA 2014)Father appealed part of the trial court's dispositional order requiring him to participate in anger management. The Department conceded error in that the evidence presented to the trial court failed to demonstrate a need for such counseling. Florida Rule of Juvenile Procedure 8.410(b)(4) provides that the case plan be "meaningful and designed to address the facts, circumstances and problems on which the court based its order of dependency . . ."

The Fifth District Court of Appeal struck the portion of the disposition order regarding anger management and remanded for an amended order.

Read the Opinion

In re: The Adoption of K.A.G., 2014 WL 7331269 (Fla. 5th DCA)

Paternal grandmother and Father appeal the trial court's judgment dismissing Grandmother's petition to adopt K.A.G.

Father was charged with killing his child's mother and was incarcerated awaiting trial. The Department of Children and Families (department) began dependency proceedings, placed the child with his aunt and petitioned to terminate Father's parental rights. Concurrently, Grandmother petitioned the court to adopt the child with Father's executed written consent pursuant to Florida Statute § 63.087. Aunt filed a counter-petition to adopt and later moved to intervene in Grandmother's adoption proceeding. Both were denied by the trial court. The trial court excluded the department and the guardian ad litem from the courtroom and heard testimony from the Grandmother and the Aunt. The trial court dismissed Grandmother's petition.

In its findings, the trial court found that Father consented to adoption and subsequent placement with Grandmother. The court stated that it could not consider the same evidence and factors in Grandmother's adoption proceedings as it would in the dependency matter. The court felt it had to determine whether Grandmother was fit and proper without determining whether adoption by Grandmother was in the child's best interest. Finally, the court found it was not able to appoint a guardian ad litem in the adoption proceedings and was not presented any evidence from mental health professionals regarding the impact adoption would have on the child's mental or emotional state. The trial court found "no reasonable explanation as to why the adoption proceeding should be considered without requiring inclusion of such pertinent information and such key participants."

Both Grandmother and Father moved for a rehearing. Grandmother argued that because Father chose her to adopt the child, the court's best interest analysis should have been limited to only whether she was appropriate, fit and able to protect the child's well-being. Father argued that the court should have examined whether his consent was valid by clear and convincing evidence and then whether adoption by Grandmother was in the child's best interest by a preponderance of the evidence. Father argued that the court cannot interfere with a parent's ability to make decisions on how to rear their children absent harm to the children and that all those individuals interested in the child agreed that adoption as a goal was in the child's best interest.

Florida Statute � 63.087(3) provides for the adoption by relatives without the filing of a separate petition for termination of parental rights proceeding the adoption. The termination and adoption are handled in the same proceeding. When the court is presented a petition filed under this statute, as Grandmother's petition was so filed, the court must first determine by clear and convincing evidence whether the parent executed a valid consent. After a determination is made as to the validity of consent, then the trial court must determine whether adoption by the petitioner is in the best interest by a preponderance of the evidence. In the instant case, the trial court failed to determine whether Father's consent was valid and erroneously required Grandmother to prove by clear and convincing evidence rather than by a preponderance of the evidence whether adoption served the child's best interest. The Fifth DCA accordingly reversed and remanded the matter for further proceedings.

The Fifth DCA addressed several other issues that may occur on reconsideration. First the Fifth DCA disagreed with the trial court's finding that it could not appoint a guardian ad litem in the adoption proceeding, citing to Florida Statute � 63.022(4)(k) and Simms v. State, Dept of Health & Rehabilitative Servs. , 641 So.2d 957 (Fla. 3d DCA 1994). Second, the Fifth DCA agreed that Father's consent to terminate his parental rights was conditioned on Grandmother adopting the child. If the trial court decides that adoption by Grandmother is not in the child's best interest, Father's consent to terminate his rights should be deemed withdrawn. Third, the Fifth DCA recognized the trial court's concern that it was not able to consider the same evidence in the adoption proceeding as it would in a dependency proceeding. The Fifth DCA pointed to the recent adoption of Florida Family Law Rule of Procedure 12.003, which allows the court to consider as many issues as practical in adoption and dependency matters and to conduct joint hearings in related cases.

Read the Opinion

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

 The Mother appealed an order denying her motion to reopen the dependency case to modify the trial court's order placing the children in permanent guardianship with their paternal grandparents. The Fifth District Court of Appeal affirmed denial finding that the parent has the burden of proving that the children's safety, well-being, and physical, mental and emotional health would not be endangered by reunification.

 

Read the Opinion

 

J.L. v. Department of Children and Families, 143 So. 3rd 1158 (Fla. 5th DCA 2014)

Father appealed termination of his parental rights. The Fifth DCA reversed the finding of abandonment by Father based on undisputed testimony that Father visited the child regularly, provided support to the child, and that Father and child were bonded.


 
The Fifth DCA affirmed termination on other grounds.

 

Read the Opinion

 

R.L. v. W.G., 147 So.3d 1054 (Fla. 5th DCA 2014)

 

The Fifth District Court of Appeals affirmed an order denying the former foster parents' motion to intervene in termination proceedings.

 

The Department petitioned to terminate the Mother's parental rights. While Mother's rights were still intact, Mother chose to have her cousin (W.G.) adopt her child. The court found W.G. to be qualified and ordered the child to be placed with her. The foster parents moved to intervene and set aside the change of placement.

 

The Fifth DCA found that because Mother's parental rights were intact, her choice of placement with W.G. was exclusively her decision limited only by the trial court's determination that the prospective placement was qualified and that the adoption is in the child's interest. The Fifth DCA distinguishes this case from I.B. v. Department of Children and Families, 876 So. 2d 581 (Fla. 5th DCA 2004). The foster family in I.B ., which was granted standing, had a pending adoption petition, alleged an agreement with the Department to adoption, and the trial court had ordered a placement change without examining the child's best interest.

 

Read the Opinion 

 

R.M.L. v. Department of Children and Families, 147 So.3d 1108 (Fla. 5th DCA 2014)

Mother appealed a written final order adjudicating her children dependent because the court's oral order withheld adjudication. The Fifth District Court of Appeal reversed adjudication finding when the oral and written orders do not agree, the oral order controls.

 

Read the Opinion

 


 

If you have any questions or comments please email me at Elizabeth.Damski@gal.fl.gov 
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