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Florida Guardian ad Litem
Legal Briefs Newsletter
June 2014
A Note from Alan Abramowitz 
It is an exciting time at the Florida Guardian ad Litem Program.  We have celebrated our 9,000th volunteer;  helped to pass important normalcy, transportation and legal advocacy legislation; hosted a first of its kind Disabilities Training Conference; and are well on our way to 100 percent representation of Florida's dependent children.  But most importantly our team of Guardian ad Litem volunteers, attorneys, case coordinators and circuit directors - supported by their local non-profit organizations - continue to provide a voice for Florida's most vulnerable children involved in the dependency system

Judge Lederman Acceptance SpeechAt this year's National CASA Conference, Florida's own Judge Lederman was awarded the 2014 National CASA Award of Excellence.  In her acceptance speech Judge Lederman said it best when when she discussed the importance of the GAL Program and GAL volunteers.  We all thank her for her dedicated service to Florida's children. Congratulations Judge Lederman! 

   Alan' Signature

Alan Abramowitz
Executive Director
Florida Guardian ad Litem Program
First Circuit
S.B. v. Department of Children and Families, 132 So.3d 1243 (Fla. 1st DCA 2014)

The father of three daughters and their half-brother, appealed the trial court's termination of his parental rights. The Department of Children and Families'  (the department) petition was based on the argument that the "incarcerated father's continued relationship with his children would be harmful to them within meaning of termination of parental rights statute. � 39.806(1)(d), Fla. Stat. (2013)."


The father was incarcerated after his fourth DUI and began his prison sentence in February of 2012 with a release date as early as July 14, 2015. The department based their petition solely on � 39.806(1)(d) 3., which provides:

(d) When the parent of a child is incarcerated and either:

 3. The court determines by clear and convincing evidence that continuing the parental relationship with the incarcerated parent would be harmful to the child and, for this reason, that termination of the parental rights of the incarcerated parent is in the best interest of the child. When determining harm, the court shall consider the following factors:

 a. The age of the child.

b. The relationship between the child and the parent.

c. The nature of the parent's current and past provision for the child's developmental, cognitive, psychological, and physical needs.

d. The parent's history of criminal behavior, which may include the frequency of incarceration and the unavailability of the parent to the child due to incarceration.

e. Any other factor the court deems relevant.


The First District Court of Appeal (First DCA) discussed the changes in the TPR incarceration statute in 2012. The 2012 changes to the statute called for a qualitative rather than purely quantitative analysis of the TPR incarceration statute.


The First DCA agreed with the father and overturned the trial court's termination of his parental rights holding, "proof regarding factors (a) through (c) does not support termination of parental rights. All the children's ages should be considered, given the objective of keeping them together. As for factor (d), under the amended statute, as under its predecessor, criminal history alone is not sufficient for termination." The First DCA held that although the department argued the children deserved timely permanency,  the most likely timely permanency will come from the father when he is released. The children were not placed together and there was testimony establishing a possibility for multiple placements for the children in the future. Finally, there was no testimony that reuniting these children with their father would be harmful to them.


The First DCA reversed the trial court's decision terminating the father's parental rights.

Read the Opinion 

Second Circuit Opinions

In re A.K., 2014 WL 1696142(Fla. 2d DCA)

The father (a non-offending parent living in Tennessee), appealed the trial court's order setting permanent guardianship and placement of father's children with their maternal grandparents and denying father's motion for reunification.


When the Department of Children and Families (department) moved to terminate services and request the children be placed permanently with the grandparents, the department based their request on the father not completing his case plan tasks and reuniting the children with their father would be harmful to the children. The trial court held the father had failed to complete his case plan tasks and had also abandoned his children when he moved to Tennessee.


The Second District Court of Appeal (Second DCA) held the trial court abused its discretion in failing to reunify the children and setting permanent guardianship with the maternal grandparents. As a non-offending parent, the father did not have a case plan and the goal was always reunification once the Tennessee home study and some longer unsupervised visits had occurred. Also, the accusation of abandonment by "the department not supported by the evidence and was not even alleged by the Department." Further, the Second DCA held the "children's preference to remain with the grandmother and merely visit the Father is not a basis on which the trial court could conclude that the ongoing transitional reunification with the Father was detrimental to their safety, well-being, or health. The closest thing to a supportable basis for such a finding is that the therapist working with the children found that the removal from their grandmother, who had been a source of stability for them over the years, would be detrimental and against the "best interests" of the children."


The Second DCA reversed the trial court's "order establishing a permanent guardianship and remand the matter for the entry of an order resolving this action in favor of the nonoffending Father unless there is additional evidence provided by the Department to show that circumstances have changed such that the original goal of reunification cannot occur."

Read the Opinion


In re S.M.,136 So.3d 1271 (Fla. 2d DCA 2014)

The father and mother petitioned for a writ of certiorari to quash the trial court's disposition order that accepted the case plan requiring each parent to submit to a psychiatric evaluation and a substance abuse evaluation.


The Second District Court of Appeal (Second DCA) agreed with the parents and quashed the part of the order requiring a substance abuse evaluation (they had already submitted to psychiatric evaluations). The Second DCA held, "nothing in the record indicates that a substance abuse evaluation is relevant to the dependency or that it would meaningfully address the facts and circumstances which resulted in the children's removal from the home."

Read the Opinion



In re A.P., 135 So.3d 541 (Fla. 2d DCA 2014)

The father appealed the trial court's order adjudicating his children dependent based upon an unsecured gun being found in the home.


The Second District Court of Appeal (Second DCA) reversed the dependency adjudication holding the "application of � 39.01(15)(f) requires "the necessity of a continuing risk-not just a risk that existed sometime in the past, but a risk that is alive and merits judicial interference in the parent-child relationship to protect the child's welfare."J.O. v. Dep't of Children & Family Servs., 970 So.2d 395, 399 (Fla. 3d DCA 2007) (Shepherd, concurring). "The purpose of a dependency proceeding is not to punish the offending parent but to protect and care for a child who has been neglected, abandoned, or abused."R.F. v. Dep't of Children & Families, 770 So.2d 1189, 1193 (Fla.2000). See � 39.501(2).


The Second DCA reversed, as the evidence was insufficient to prove by a preponderance of the evidence that the children were dependent.

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A.C. v. Department of Children and Family Services and Guardian ad Litem Program,136 So.3d 720 (Fla. 2d DCA 2014)


The Second District Court of Appeal (Second DCA) reversed the trial court's order placing the father's three children in permanent guardianship. Although the trial court's decision to place the children in a permanent guardianship was supported by competent, substantial evidence, the trial court's order failed to contain or reference the findings required by � 39.6221(2)(a),Fla. Stat. (2013). The Second DCA stated that the "trial court's reference to "the circumstances from which the court previously based its findings that the children are dependent" is insufficient..."

Read the Opinion

In re J.B.,130 So.3d 753 (Fla. 2d DCA 2014)

The father appealed the trial court's order terminating protective supervision and placing his two children in permanent guardianship. At the time of the latest judicial review, neither the father nor the mother had achieved their case plan goals. The children had been living in non-relative foster care for about 18 months.


The day before the judicial review the Department of Children and Family Services (department) had decided to change the parent's goal from reunification to permanent guardianship. However, the department noticed the hearing as a judicial review hearing - not a permanency hearing at which the court was expected to enter a final permanency order.


The Second District Court of Appeal (Second DCA) reversed trial court's order terminating supervision and granting permanent guardianship holding that the father was not given the required notice. "At least 3 business days before the permanency hearing, the department shall file its judicial review social services report with the court and serve copies of the report on all parties. The report must include a recommended permanency goal for the child, suggest changes to the case plan, if needed, and describe why the recommended goal is in the best interest of the child." �39.621(3)(a), Fla. Stat. (2013). "In this case, the documents that the Department filed the day before the hearing do not even claim to be a permanency review, and even the judge did not understand it was intended to be a permanency hearing until the end of the hearing."


Finally, the Second DCA stated, "While a permanent guardianship interferes far less with a parent's fundamental constitutional right to parent than does an order of termination, a permanent guardianship is still a very serious step that must be performed with care and a full measure of due process."

Read the Opinion 


Third Circuit Opinions
D.C. v. J.M., 133 So.3d 1080 (Fla. 3d DCA 2014)

The mother sought a writ of certiorari quashing a "Partial Order on Foster Parents' Motion to Intervene" entered by the trial court. The foster parents' motion alleged that they had "direct and immediate interests" in the dependency cases relating to the mother's children in their care and that they had a right to intervene and become parties rather than remain mere "participants" as defined by �39.01(50), Fla. Stat. (2013)The trial court had partially granted the foster parents and the foster parent's attorney "unfettered access" to the entire dependency file.


The mother (joined by the GAL Program) argued that the trial court's order violated the privacy rights of the mother, the father, and three half-siblings, thus departing from the essential requirements of law, causing irreparable injury, and leaving no adequate remedy on appeal.


The Third District Court of Appeal (Third DCA) agreed with the mother, holding that although �39.01(50) expressly includes foster parents as "participants" in a dependency proceedings- giving them the right to receive notice and to be heard by the court without having to file a motion- foster parents are not authorized to see every record in a confidential, pending dependency case court file that may relate, for example, to the natural parents, or to siblings that are in other placements and are not in the care of the foster parents.


Because the trial court's order did not exclude records of the parents, half-siblings not in the foster parents care, the order jeopardizes the constitutional and statutory rights of the parents and siblings to privacy and confidentiality. Art. I, � 23, Fla. Const., � 39.0132(3).

Read the Opinion  



A.D. v. Department of Children and Families, 2013 WL 3742775 (Fla. 3d DCA)

The father appealed the trial court's order terminating the mother's parental rights. The father argued, "he was denied due process when the trial court refused to appoint counsel for him at the mother's termination of parental rights proceedings and as a result, he was also denied his right to be heard at her trial."  


The Third District Court of Appeal (Third DCA) held that the father lacked standing to appeal because "Florida Rule of Appellate Procedure 9.146; permits "any parent ... to the proceeding affected by an order of the lower tribunal" to appeal the final judgment." Because the father was not affected by the trial court's order terminating the mother's parental rights, the appeal was dismissed for lack of standing.  


The Third DCA noted although the father was a party to the child's dependency case, he was not a party to the mother's TPR proceeding. 

Read the Opinion


R.L.R. v. State, 116 So.3d 570 (Fla. 3d DCA 2014)

R.L.R, a dependent young adult, filed a petition for writ of mandamus to compel the trial court to reverse its order directing his attorneys ad litem to disclose juvenile whereabouts after he had run away.


R.L.R. had been appointed two attorneys ad litem to represent him. The attorneys representing him refused to disclose his whereabouts after he had run away from a Department of Children and Families (department) placement. The attorneys obtained that information on R.L.R's location from the R.L.R during the course of representation and were instructed that the information be kept confidential and was not to be disclosed.   The trial court ordered the attorneys ad litem to disclose the location of R.L.R. holding the disclosure was required "for the proper administration of justice."


The Third District Court of Appeal (Third DCA) held there was no "dependency exception" for an attorney ad litem representing a child in a dependency case.  R.L.R. did not give his consent to disclose the information and the need for the information did not fall under the attorney-client confidentiality exceptions such as preventing a crime, death, or bodily harm to another, which are the only exceptions for disclosure under the rule. Rule 4-1.6 of the Florida Bar


"The Attorneys ad Litem are independent of the GAL program and were appointed to provide legal representation to R.L.R. pursuant to Florida Rule of Juvenile Procedure 8.217Rule 8.217(c) specifically states that "the attorney ad litem shall have the responsibilities provided by law." The comments to Rule 4-1.2 of The Florida Rules of Professional Conduct state that, as part of those responsibilities provided by law, "regardless of the circumstances, a lawyer providing limited representation forms an attorney-client relationship with the litigant, and owes the client all attendant ethical obligations and duties imposed by the Rules Regulating The Florida Bar, including, but not limited to, duties of competence, communication, confidentiality and avoidance of conflicts of interest." Rule 4-1.2, Rules Regulating the Florida Bar (2012). Therefore, the attorneys appointed to represent R.L.R., even if such representation is limited, have an attorney-client relationship with R.L.R. and are bound by the rules of confidentiality of information which regulate all attorneys in the state of Florida."


The Third DCA granted R.L.R.'s petition and quashed the trial court's order which compelled "the court-appointed Attorneys ad Litem to breach their attorney-client privilege and disclose the whereabouts of their client."

Read the Opinion 

Fourth Circuit Opinions

D.A. v. Department of Children and Families, 132 So.3d 358 (Fla. 4th DCA 2014)

The mother appealed the trial court's order terminating her parental rights (TPR). She argued that it was a violation of due process to allow the same judge who ordered the Department of Children and Families (department) to file the TPR petition to preside over the TPR trial and then grant that TPR.


The Fourth District Court of Appeal (Fourth DCA) affirmed the trial court's order terminating the mother's parental rights holding there was no violation of the mother's due process rights.  In their holding, the Fourth DCA cited, In the Interest of J.R.T., 427 So.2d 251, 252-53 (Fla. 5th DCA 1983)  which held "a court has the authority to order the filing of a petition for termination of parental rights; "To hold that [the Department] alone could initiate termination proceedings would be to permit the [Department] to restrict and frustrate the inherent and statutory authority of the court to protect the welfare of minor children."


T.N.L. v. Department of Children and Families, 2014 WL 223001 (Fla. 4th DCA).


The mother appealed the trial court's order denying her motion for reunification and placing her child with the father. The mother argued the trial court erred in denying reunification because she was in substantial compliance with her case plan and the trial court did not make any findings that the child's safety and well-being would be endangered if she were reunified with the mother. � 39.522(2), Fla. Stat.(2012). The legal standard for reunification involving a child placed with a non-offending parent was changed in 2013 - after the trial court's order denying reunification. The 2012 statute standard "required the trial court to grant a motion for reunification absent a finding of endangerment to the child in cases where the parent substantially complied with the case plan."  The 2013 statute standard "allows a court to deny a reunification motion based solely on the best interest of the child, even where there is no evidence that reunification would endanger the child."


The Fourth District Court of Appeal (Fourth DCA) reversed and remanded the case for a new hearing to apply the 2013 statute. The Fourth DCA held "the amended statute, which changes the legal standard for courts to apply in ruling on reunification motions involving a child placed with the non-offending parent, is a remedial statute and does not affect substantive rights. Thus, there is no bar on its retrospective application." A new hearing was required because the mother "may have elected to present additional evidence relevant to the best interest of the child had she known that the standard had changed."

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Fifth Circuit Opinions

In re Adoption of D.P.P., 2014 WL 2109130 (Fla. 5th DCA)

The biological mother moved for relief from the final judgment of adoption, whereby her same-sex partner adopted her child. The trial court vacated the final judgment of adoption holding the court lacked subject matter jurisdiction and the final adoption where the biological mother's same-sex partner (partner) adoption of the biological mother's child was void. The partner appealed.


The Fifth District Court of Appeal (Fifth DCA) held the trial court had subject matter jurisdiction over the case and the biological mother was estopped from trying to void the adoption judgment. Estoppel prevents a person from unfairly asserting inconsistent positions. The biological mother and the partner had "jointly sought to make [partner] a co-equal legal parent of [child] and both joined in the adoption petition.  [The child] regards both [biological mother and partner] as parents, and all three lived as a family for years."


The Fifth DCA went on to hold "it would be unconscionable to allow [biological mother] to invoke the jurisdiction of the court for the sole purpose of creating a parent-child relationship between [partner] and [child] and then to allow her to destroy that same relationship because her relationship with [partner] has ended."


The Fifth DCA reversed the trial court's order vacating the final judgment of adoption and reinstated it.

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Department of Children and Families v. T.W., 124 So.3d 411 (Fla. 5th DCA 2013)

The Department of Children and Families (department) appealed the trial court's order reunifying the mother and her children based on unsworn statements made by the mother and the caseworker. The department argued that there was "no prior notice that reunification would be addressed, [the department] was not afforded an opportunity to present witnesses or otherwise prepare to address this issue, and no proper evidentiary hearing was held where witnesses were called to testify under oath."


The Fifth District Court of Appeal (Fifth DCA) agreed, holding the lack of proper notice and the trial court's failure to conduct an evidentiary hearing deprived the department of its due process rights. The trial court's order departed from the essential requirements of the law and caused irreparable harm that could not be remedied on appeal.


The Fifth DCA quashed the trial court's order and remanded the case for further proceedings.

Read the Opinion 


Chew v. Roberts, 122 So.3d 493 (Fla. 5th DCA 2013)

After a child's parental rights were terminated, the foster parents moved to intervene in the dependency proceeding in order to adopt the child. The child's aunt and uncle also filed motions to adopt the child and moved the trial court to consolidate the actions. The foster parents opposed the consolidation because they did not received proper notice. The trial court granted the aunt and uncle's motion to consolidate and scheduled a hearing to modify the child's placement. The foster parents sought certiorari review of the order consolidating the adoption case and ordering the evidentiary hearing brought by the aunt and uncle arguing they were denied due process, as they were not properly noticed.


The Fifth District Court of Appeal (Fifth DCA) agreed with the foster parents, holding the foster parents were denied due process when the trial court considered and ruled upon the aunt and uncle's motion to consolidate. The Fifth DCA, also noted that the trial court's decision to "consolidate had potentially significant legal implications beyond merely having two separate actions heard together. The trial court's decision on the motion to consolidate implicitly granted the [aunt and uncle] status as "parties" rather than as "participants" in the dependency case-a legal status to which they may well not be entitled." 


The Fifth DCA granted the foster parent's petition for writ of certiorari and quashed the order granting the hearing to modify placement of the child.

Read the Opinion 


A.J. v. Department of Children and Families, 111 So.3d 980 (Fla. 5th DCA 2013)

The father appealed the trial court's dependency adjudication of his daughter. She was born prematurely and had significant health problems, which required intensive medical involvement. The Department of Children and Families (department) based their dependency petition on the parent's neglect of the child's extensive medical needs and her failure to thrive.  The parent had failed to show up for medical appointments, the constant medical care had depleted the father's savings, the father had lost his job and the family had been living out of their car for a month.


The Fifth District Court of Appeal (Fifth DCA) upheld the trial court's dependency adjudication. The "testimony reflected the need for great vigilance in meeting the child's medical needs, yet the parents missed numerousappointments and efforts to contact the parents following those missed appointments proved unsuccessful. " 'Necessary medical treatment' means care which is necessary within a reasonable degree of medical certainty to prevent the deterioration of a child's condition or to alleviate immediate pain of a child." � 39.01(43), Fla. Stat. (2011). The testimony reflected that the parents' failure to follow up on the child's medical appointments endangered the child's health and potentially her life. "The Fifth DCA also noted, "the purpose of the finding of dependency is not to  

punish the parents, but rather to help them meet the needs of a very challenged little girl. �39.501(2), Fla. Stat. (2011)."

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