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The Statewide Florida Guardian ad Litem Program

Legal Briefs Newsletter
August 2015

Note from Alan Abramowitz
The Florida Children's Cabinet, on which I serve, voted this week to call on the legislature to set a statewide priority for services to children in the first 1,000 days of life.  The GAL Program is seeking funds this coming legislative session not only to reach the dramatic increase in numbers of children in out of home care, but also the youngest children in the first 1,000 days of their lives who remain in their own homes under court supervision.  We are also seeking funding for professional staff certification that will include a focus on baby court and the first 1,000 days of childhood, volunteer retention and strengthening advocacy.  

So, what can you do?  Talk with your local Senator or Representative about the GAL Program, its purpose, and the impact that the Program has on the lives of children.  Explain how GAL volunteers and the GAL Program change the future of children's lives every day through their work.  

You can find your State Senator or State Representative by just putting in your street address at:

  Alan' Signature
Alan Abramowitz
Executive Director
Florida Guardian ad Litem Office
Third Circuit
M.M. v. Department of Children and Family Services, 2015 WL 4077501 (Fla. 3rd DCA) 
Father sought review of an order terminating the Department of Children and Families' (Department) supervision of the children. The Third District Court of Appeal (Third DCA) granted the petition only as to the portion of the order that limited father's future visitation with the children.

The trial court terminated supervision of the children based on the children achieving permanency with their mother. The trial court also denied father visitation based upon evidence that the children were in fear of their father and would suffer serious mental distress from any contact. Although the Third DCA found ample evidence to support a denial of visitation at the time of trial, the Third DCA found that the trial court erred in restricting decisions regarding future visitation solely to the children's discretion. Citing Florida Statute § 39.621, the Third DCA held that the trial court has a duty to consider any future motion for modification or increased visitation.

Read the Opinion

S.V. v. Department of Children and Families, 2015 WL 4095258 (Fla. 3rd DCA)
Father petitioned for writ of certiorari regarding a review of a trial court order that set aside a magistrate's recommendation for reunification and denied Father's motion for reunification. The The Third District Court of Appeal (Third DCA) denied Father's petition .

Citing Cerase v. Dewhurst, 935 So. 2d 575 (Fla. 3d DCA 2006), the Third DCA noted that when a trial court reviews the recommendations of a magistrate, the trial court takes on the role of an appellate court. The trial court's review of such recommendations is limited to determining whether the findings of fact are supported by competent evidence and whether the magistrate made clearly erroneous legal conclusions or misconceived the legal effect of the evidence. The Third DCA's certiorari review is limited to whether the trial court departed from the "essential requirements of the law in conducting its review," which resulted in irreparable harm that cannot be remedied by direct appeal.

In the instant case, because the facts were undisputed, the trial court focused its review on the whether the magistrate misconceived the legal effect of the evidence. In a "painstakingly analyzed" sixteen-page order, the trial court concluded that the magistrate misapplied the law. The Third DCA distinguished Cerasa, where the Third DCA reversed the trial court finding that the trial court incorrectly reweighed the evidence. In Cerase, the Third DCA exercised appellate review rather than certiorari review. The Third DCA also found that the trial court in the instant case applied the correct legal standards when it rejected the magistrate's recommendation based on the magistrate misconceiving the legal effect of the evidence. In Cerasa, the trial court solely substituted its judgment for that of the magistrate.  
Read the Opinion

In re K.B.L.V., 2015 WL 4268740 (Fla. 3rd DCA)
K.B.L.V. appealed dismissal of his private petition for dependency based upon abandonment. The Third District Court of Appeal (Third DCA) affirmed.

K.B.L.V. was seventeen years old when he filed a private petition for dependency. At the time, he was living with his mother in Florida. It was undisputed that his father abandoned him in Honduras. His father never exercised his parental rights, established a relationship or provided support. In September 2013, K.B.L.V. moved to the United States and reunited with his mother. A finding of dependency would allow K.B.L.V. to apply for Special Immigrant Juvenile Status (SIJS) and ultimately apply for lawful permanent residency.

The trial court found that Father's abandonment (in 2003) was too remote in time and that K.B.L.V was living with his mother, an appropriate caregiver. K.B.L.V. argued that there is no remoteness in time limitation to abandonment in the law and that failure to find him dependent would place him at risk of deportation and further abandonment and neglect.

The Third DCA focused its decision on the purpose of Florida's dependency statutes. The purpose of Chapter 39 of the Florida Statutes is " . . . to ensure secure and safe custody . . . and to prevent the occurrence of child abuse, neglect and abandonment." A dependent child is defined as a child that has "been abandoned abused or neglected by the child's parent, parents or legal custodian" or a child who is "at substantial risk of imminent abuse, abandonment or neglect by the parent or parents or legal custodians." § 39.01(15), Fla. Stat. (2014). Although there is nothing in the statue that limits abuse or neglect to a specific distance in time, case law support that incidents of abuse too remote in time without a continuing threat of harm, do not support a finding of dependency. In re K.V., 939 So. 2d 200, 202 (Fla. 2d DCA 2006); B.C. v. Dep't of Children and Families, 846 So. 2d 1273, 1274 (Fla. 4th DCA 2003).

K.B.L.V. was safe and secure in his mother's care. There was no continuing risk of abuse or neglect by either parent. The only risk to K.B.L.V. was that of deportation, which is by itself is an "invalid basis upon which to qualify" for a finding of dependency.

In re B.Y.G.M., 2015 WL 4268719 (Fla. 3rd DCA)
B.Y.G.M. appealed dismissal of her private petition for dependency on the basis of abandonment and neglect by her father. The Third District Court of Appeal (Third DCA) affirmed.

B.Y.G.M. was abandoned by her father when she was eight months old in El Salvador. She lived with her grandparents until she fled to the United States to live with her mother in 2014. She was seventeen years old when she filed the petition. B.Y.G.M. was safe and secure in her mother's care; there was no risk of imminent abuse, abandonment or neglect; and the purpose of B.Y.G.M.'s petition was to secure Special Juvenile Immigration Status. The Third DCA conducted a similar analysis as it did in K.B.L.V. and agreed with the trial court's conclusion that B.Y.G.M. was not a dependent child.

Justice Shepherd filed a concurrence, which he wrote "only to point out the troubling fact that the Florida Department of Children and Families (Department) has elected not to participate in these proceedings." He explained that although the Department has a history of not challenging cases involving an adjudication of dependency prior to seeking legal immigration status, the Department is responsible for protecting children and families, for the administration of Chapter § 39 of the Florida Statutes and should have "a keen interest" in both the outcome of the case and how the Third DCA interprets the law. By not participating, Justice Shepherd finds the Department "shirks its duty" to the court and "endangers its own credibility."

Justice Shepherd concludes finding that "[t]hese cases are immigration cases, pure and simple." The Third DCA cannot find B.Y.G.M. dependent solely for the purpose of obtaining a legal immigration status.
Fourth Circuit
O.I.C.L. v. Department of Children and Families, 2015 WL 4461164 (Fla. 4th DCA)
The Fourth District court of Appeal (Fourth DCA) addressed the issue of private dependency petitions that are clearly filed to assist a child in obtaining Special Immigration Juvenile Status (SIJS). O.I.C.L. filed a private petition alleging that he was abandoned by his father and neglected by his mother in Guatemala. When he was seventeen years old, his mother could no longer continue supporting him so he went to the United States, where he lived with his uncle. The trial court denied the petition finding that O.I.C.L. did not qualify as a dependent child as he was being well cared for by a "ready willing and able relative."

The Fourth DCA noted that these petitions are becoming more common and guidance on handling them is necessary. Common elements are seen in these cases. The child/petitioner is almost eighteen years old and agrees not to seek any services from the State. The Department of Children and Families (Department) does not take a position in the trial or the appeal.   No contrary testimony is taken and at least one of the parents sign consent to entry of a dependency order. The Fourth DCA, citing Dep't of Children and Families v. Y.C., 82 So. 3d 1139 (Fla. 3d DCA 2012) explains "at their core, these petitions are probably best described as 'merely an unopposed request for the assistance of the court,' for entry of orders to help a child obtain legal immigration status.

Although the Fourth DCA recognizes that a child's motivation for seeking dependency status is irrelevant, it notes also that judicial resources are being misused to obtain dependency orders for children who are not abused, neglected, abandoned, endangered or in need of protection but because they are seeking special immigration status. Although a literal application of Florida Statute § 39.01(15)(a) allows for a child who had been abused, neglected, or by a parent or legal custodian at any time in the past and when not at risk of future abuse to be found dependent, the Fourth DCA did not believe the legislature intended such an expansive reading. To illustrate its position, the Fourth DCA described a situation where a seventeen year old could be adjudicated dependent based on abuse that happened when he was two by a parent that is now deceased.
The Fourth DCA warned against courts "rubber-stamping" these petitions and directed courts to consider the petitions carefully with critical review. It set forth a number of factors that trial courts should consider when evaluating these petitions:
1. The nature, severity and frequency of abuse.  
2. The time that has elapsed between the abuse, neglect or abandonment. 
3. Whether the child is presently at a continued, but not necessarily imminent, risk of harm before turning eighteen years old. 
4. The availability of a caregiver capable of providing both supervision and care.  
5. Any other relevant factors to the particular case.

O.I.C.L. was picked up by the Office of Refugee Resettlement and placed with his uncle pending immigration charges. The trial court found, and the Fourth DCA agreed, that the Office of Refugee Resettlement qualified as a caregiver pursuant to Florida Statute § 39.01(47) and their placement of the child with his uncle made him a relative caregiver.

Justice Forst filed a dissent in which he agreed with the legal analysis required for these types of private petitions but disagreed that the uncle was a legal caregiver.
Read the Opinion  
Fifth Circuit
Statewide Guardian ad Litem Program v. A.A., 2015 WL 4510417 (Fla. 5th DCA)
The Statewide Guardian ad Litem Program (GAL) and the Department of Children and Families (DCF) appealed the trial court's Final Judgment Denying Involuntary Termination of Parental Rights and Ordering a Permanent Guardianship Case Plan. The trial court found that DCF proved statutory grounds for termination as to Mother and Father by clear and convincing evidence and that termination was in the best interest of the children. The trial court denied termination finding that it was not the least restrictive means of protecting the children from harm.

Mother's four children were originally found dependent following an incident where Mother's paramour physically and sexually battered Mother and physically battered the oldest child. Mother's paramour admitted to drug use and daily drinking to the point of intoxication. There were also drug concerns regarding Mother. The children were placed with the maternal great aunt and uncle. Over the next three years, Mother maintained her relationship with her paramour and continued to use alcohol and test positive for drugs. She was inconsistent in attending family meetings and provided the children no financial support, emotional support or guidance. At the termination trial, the great aunt and uncle testified that they would adopt the children if rights were terminated and the older children expressed a desire to remain with their relatives.

The trial court noted that a psychologist testified that Mother would likely respond to treatment if she chose to seek it and although she continued to use, she did make some efforts to reduce her use. In light of that testimony, the trial court found there was no evidence that termination was the least restrictive means of protecting the children from harm. The court ordered the new permanency goal to be permanent guardianship with the great-aunt and uncle.

The Fifth District Court of Appeal (Fifth DCA) found that the trial court incorrectly suggests that the least restrictive means test cannot be met if there are any other available alternatives to termination. In Dept of Children and Families v. B.B., 824 So. 2d 1000 (Fla. 5th DCA 2002), the Fifth DCA previously rejected such an interpretation and held that "the 'least restrictive means' test simply requires that measures short of termination should be utilized if such measures can permit the safe re-establishment of the parent child bond." The Fifth DCA found that it is unreasonable to prevent adoption if reunification is impossible or not in the children's best interest.

Furthermore, adoption is the first option when reunification is not possible. In the instant case, adoption was the case plan goal. None of the parties requested a goal change to permanent guardianship and no evidence supported a goal change to permanent guardianship. Three years had passed between the family coming to the attention of the Department and the final order denying termination. One of the purposes of Chapter 39 is to ensure permanent placement as soon as possible for every child.

Read the Opinion 
Training Updates and Resources  kids_holding_signs.jpg
In May over 450 attorneys, judges and child welfare professionals attended the Second Annual Florida Guardian ad Litem Program Disabilities Training Conference.  The keynote speakers were inspiring, thought provoking and gave child welfare professionals in attendance tools to use in helping the children they work with every day.  The workshops were wide ranging with presenters sharing their expertise in areas such as guardianships, psychotropic medications, master trusts and educational advocacy.  Click here to link to over 30 videos (45 CLE credits) of the workshops and keynote speakers from this years conference. Along with the videos you will find PowerPoint presentations and helpful resources and practice aids.

Also recently added:
To view or listen to archived child welfare training visit Guardian ad Litem Program Training where you will find audio and video recordings of trainings offered by the Guardian ad Litem Program.   
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