Florida Guardian ad Litem
Legal Briefs Newsletter
December 2015
A Note from Alan Abramowitz
 
Its tradition to give our loved ones gifts during the holidays.  Gifts of sweaters, toys and special mementos to be treasured for years to come.  This year, as I gather with friends and family, I think about the children who are without their loved ones. This time of year is especially painful for the children we work so hard to advocate for every day. I am comforted, however, by the gifts our GAL volunteers and staff give to the children they represent. The gift of a voice in court, the gift of time,  the gift of understanding - ultimately the gift of love.

May you all celebrate the holidays surrounded by gifts of love from your family and friends.

Happy Holidays and Have a Wonderful New Year.

Alan' Signature
Alan Abramowitz
Executive Director
Florida Guardian ad Litem Program
Second District Court of Appeal
 
In re E.D, 2015 WL 9487592 (Fla. 2d DCA)

In affirming the trial court's final judgment that terminated the mother's parental rights to her four
children, the Second District Court of Appeal emphasized the importance of trial courts adhering to specific time frames in cases involving termination of parental rights.
In this case, the trial court did not render its final termination of parental rights judgement until eight months after the termination hearing and only after the Guardian ad Litem filed a motion for ruling on the petition for termination of parental rights. The eight months was well beyond the 60 days required by Florida Rule of Judicial Administration 2.215(f) and did not comply with Florida's public policy of expediting termination proceedings.  
Fourth District Court of Appeal 
 
T.B. v. Department of Children and Families, 2015 WL 6496316 (Fla. 4th DCA)
Father appealed an order which placed his children in a permanent guardianship with a relative; terminated supervision by the Department of Children and Families; and modified Father's visitation with the children to comport with the relative's planned move out of state. The Fourth District Court of Appeals (Fourth DCA) reversed the order finding that it failed to include the required findings of fact and that a hearing was required to permit the guardian to relocate out of state.      
The children were adjudicated dependent as to Father due to abandonment and the Father's failure to prevent neglect by Mother. Father was granted visitation and completed a case plan successfully. Father was denied reunification because Father's adult son, who was on pre-trial release for alleged sexual abuse of minors, was residing in Father's home.

In a later review hearing, the trial court entered a final order placing the children in a permanent guardianship and modifying father's visitation. The trial court found that the Florida Statute § 39.61, which governs relocation, does not apply in permanent guardianships.

Pursuant to Florida Statute § 39.6221(2), a written order establishing a permanent guardianship must include the reasons why the parents are "not fit to care for the child and why reunification is not possible by referring to specific findings of fact . . . or by making specific findings of fact." The trial court's order failed to include specific findings of fact, stating only that the parents are not fit because "the circumstances from which the court previously based its finding that the children are dependent have not been ameliorated." The Fourth DCA found this general conclusion did not meet the specificity required by statute or case law. The trial court record was unclear as to whether an evidentiary hearing was held on the permanent guardianship and directed the trial court to conduct a hearing as one had not occurred.

As to the matter of relocation, the Fourth DCA found that Florida Statute § 39.61 does apply in guardianship cases. As such, a hearing was required to determine whether relocation was in the best interests of the children.

Read the Opinion
 
C.S. v. Department of Children and Families, 2015 WL 7007794 (Fla. 4th DCA)
Father appealed termination of his parental rights on the grounds of "egregious conduct." The Fourth District Court of Appeals (Fourth DCA) found that the life and death consequences of Father's lack of providing proper medical care supported a finding that his conduct was egregious as defined by Florida Statute § 39.806(1)(f).

The child at issue tested positive for HIV at birth and was placed on a medication regimen and close monitoring of her weight and development. Had the medications been administered properly, the child's viral load should have reduced within months and the child should have gained weight. The child's numbers instead fluxuated and the child was diagnosed with Failure to Thrive. The parents failed to follow through with enrolling the child in medical daycare. The doctors believed the parents were not giving her medications as prescribed as her viral load continued to increase and she was ultimately diagnosed with AIDS. At this point, a petition was filed and the child was placed in foster care. Within six weeks of being removed from her parents, she caught up developmentally and her virus became undetectable. By the end of a year's time, she was no longer diagnosed with Failure to Thrive. The AIDS diagnosis will remain the rest of her life.

At the termination trial, the trial court found that there was nothing else the medical professionals could have done for the parents to rehabilitate them to be able to properly care for the child. The court found that had Father been administering the medication properly, the child would not have developed AIDS. Although AIDS can be controlled through medication, the parents were not able to show they could manage medication, to the point where the child's life was threatened.

Florida Statute § 39.806(1)(f)(2) defines egregious conduct as "abuse, abandonment, neglect, or any other conduct that is deplorable, flagrant or outrageous by a normal standard of conduct. Egregious conduct may include and act or omission that occurred only once but was of such intensity, magnitude or severity as to endanger the life of the child." Although the Father argued his conduct was not deplorable and claimed he never received instruction or information regarding the child's illness, the trial court found his testimony not to be credible. The Fourth DCA found that Father's minimal efforts to deal with his child's medical needs caused her life threatening harm, which was egregious.

Fifth District Court of Appeal 
 
Tluzek v. Tluzek, 2015 WL 7017418 (Fla. 5th DCA)
Former wife appealed a final judgment of dissolution. Former Wife argued that it was reversible error to order that their monthly adoption subsidy should be offset against Former Husband's child support obligations.

The Fifth District Court of Appeals (Fifth DCA) found that an adoption subsidy provided by the State of Florida to the parents of special-needs children may not be considered as credit against a child support obligation.   The Fifth DCA, looking to the legislative intent of the adoption subsidy program and other states with similar statues, found that purpose of the subsidy is to encourage the adoption of special needs children by providing additional financial support to assist in meeting the extra care a special-needs child requires. If such payments are used as a credit for child support, it removes the intended benefit of additional resources and subsidizes the obligor's financial responsibility for the children.

The Fifth DCA sets forth the proper procedure for allocating the subsidy and determining support. First, the parents' child support obligation should be established. Then, the subsidy should be allocated according to the amount of custody granted to the parents without credit or offset.

Training Updates and Resources  kids_holding_signs.jpg
 
The Statewide Guardian ad Litem Program offers a variety of training opportunities for child welfare professionals and GAL volunteers. Just posted is the training - Bridging the Gap for Transitioning Youth with Developmental Disabilities: From Foster Care to Adulthood, Presented by Bethanie Barber, Esq., Program Director, Edward Dimayuga, Esq., Public Benefits Attorney, and Ericka Garcia, Esq., Developmental Disabilities Attorney of the Legal Aid Society of the O.C.B.A., Inc.  In this training you will learn about Early and Periodic Screening, Diagnosis and Treatment program (EPSDT) versus Waiver; Securing Agency for Persons with Disabilities (APD) Services for Transitioning Youth;  Social Security Administration and Master Trust Accounts (MTAs); and Effective Transition Planning (Court, Medical, and Educational).  For attorneys, the training is eligible for 6.0 hours of Continuing Legal Education credits.   
If you have any questions or comments please email me at Elizabeth.Damski@gal.fl.gov