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The Statewide Florida Guardian ad Litem Program

Legal Briefs Newsletter
October 2015


A
Note from Alan Abramowitz
Legislative Initiatives
Every year the Guardian ad Litem Program champions legislation to ensure the law supports what is best for children in foster care.  Let me give you information that lead to this year's legislation we are championing.

Under Florida law a parent may place her child for adoption with a private adoption agency, even if the child is in foster care as long as the parents' rights have not been terminated.  This process, called intervention, allows a parent to participate in the selection of a prospective adoptive family, and have the comfort of knowing that the child will be placed expeditiously into a loving home, with permanency achieved in a short time frame.  This occurs sometimes when a parent makes a courageous decision when they know they don't have the ability or desire to parent their child.  We support these parents when after reviewing all their options that this is the best option for them.

A recent District Court of Appeals case exemplifies an issue with the current adoption intervention statute.  The case is In Re: The Adoption of K.A.G.152 So.3d 1271 (Fla. 5th DCA 2014).  The case tells a story of a boy impacted by the adoption intervention law.  After a four-year old boy's mother is murdered by his father, he is sheltered by the Department of Children and Families and placed with his maternal aunt.  While the father is in jail awaiting trial, he chooses his mother (the child's paternal grandmother) to adopt the child effectively eliminating the maternal family from the child's life.  The father asserted "that because his parental rights were still intact, he had a constitutional right to make a permanency determination for child."   The "paternal grandmother asserted "that the trial court was not permitted to veto a parent's decision simply because it perceived that another placement might be 'better.'"  Because of the wording of Florida's adoption statute, the court could only determine if the paternal grandmother was a fit and proper placement for the boy.  The court could not consider what was best for the boy (including possibly staying with his maternal aunt).

The Problem
Courts view best interests differently between family law cases and dependency cases (when a parent has abused, neglected or abandoned their child). The current law permits even a parent who has murdered a spouse, committed egregious acts against their children, or who wishes to punish a foster parent that has provided a caring home for their child for a lengthy time to choose who their child will be placed with - without requiring the court to consider what is in that child's best interests, as it would for any other child in the dependency system.

What is Adoption Intervention?
Under Chapter 63, F.S., an adoption agency may "intervene" in an open dependency case when a parent consents to terminate their parental rights and allow their child to be adopted by someone else.  The adoption agency files a motion with the court to "intervene" in the case, and typically tells the court who the parent would like the child to be placed with.

Why is Understanding Adoption Intervention Important?
Adoption intervention can expedite permanency for a child if it occurs early in the dependency case.  However, it can also impede permanency and work against a child's best interest when the child is already living in a safe and loving  pre-adoptive home.  The same law that can expedite an adoption can be used by parents who murder their spouses, do egregious abuse against their children or wish to punish a foster family that has provided a caring home for their child. 

The Solution - Best Interest Standard for Adoption Intervention
Dependency law  in Chapter 39, F.S., gives judges broad discretion when determining the best interest of children who are abused by their parents.  The GAL Program is seeking to make a change to the statute governing adoption intervention which would allow judges to rule on adoption intervention petitions by applying the child's best interest standard as defined in Chapter 39.  In addition, we are seeking legislation requiring the court to advise parents of their right to participate in a private adoption plan at the dependency arraignment hearing.

Other Legislative Initiatives the Guardian ad Litem Program has Championed Include:
Since 2005, the Statewide GAL Program has worked with the Legislature and with other child welfare organizations resulting in positive changes for dependent children.
  • The Regis Little Act which ensures children who lack capacity will have a guardianship or guardian advocate in place before they become an adult;
  • The Quality for Parenting for Children in Foster Care Act which creates a more child and foster family friendly approach to normalcy for foster youth;
  • KIDS (Keeping I.D. Safe) Act to assist in the protection of foster care children's financial records;
  • Guardian ad Litem volunteers being allowed to transport children;
  • The Keys to Independence Act  which gives a pathway for foster teens to drive;
  • Expansion of foster care until 21; and
  • Attorneys ad Litem for children with special needs, including disabilities.
Thank you for your support for the children we are advocating for every day.
 
  Alan' Signature
Alan Abramowitz
Executive Director
Florida Guardian ad Litem Office
Third Circuit
J.C. v. Department of Children and Families, 172 So.3d 515 (Fla. 3rd DCA 2015)

Mother appealed judgment terminating her parental rights. The Third District Court of Appeal (Third DCA) affirmed. Although the Third DCA found that that trial court's order was "less than precise" in finding that Mother breached her case plan and that she would be unlikely or unable to comply with the case plan by its expiration, the Third DCA found that the evidence combined with the court's detailed consideration supported such findings and resulted in harmless error.

Florida Department of Children and Families v. N.H., 2015 WL 5132689 (Fla. 3rd DCA)

The Florida Department of Children and Families petitioned for a writ of certiorari seeking to quash an order relieving the father of complying with his case plan. The Third District Court of Appeal (Third DCA) granted the petition and quashed that portion of the order.

Father consented to a dependency adjudication of his child based on domestic violence with the child's mother. Pursuant to his case plan, Father was required to obtain services and complete specific tasks. He did not complete his case plan. Over a year later, the trial court vacated the adjudication order based on Father's alleged heart condition and a finding of duress. Following a rehearing on the matter, the trial court reinstated an adjudication of dependency as to Father but entered an order excusing Father from completing the case plan.

Florida Statute § 39.6013 permits amendment of a case plan by the court or by agreement of the parties only under certain circumstances. The Third DCA found that testimony of recurring domestic violence by the Father in the child's presence supported the need for Father to have services and follow a case plan. Although a heart condition might excuse Father's participation on a particular day, the Third DCA found no basis for Father being relieved of all of his case plan obligations.
R.T. v. Florida Department of Children and Families, 2015 WL 5139483 (Fla. 3rd DCA)

The Father appealed termination of his parent rights based on abandonment.   The Third District Court of Appeal (Third DCA) affirmed termination.   Although Father maintained a telephonic relationship with his child, the trial record supported that Father was unable to care for the child. The Third DCA found the evidence supported a finding that it was in the child's best interest to achieve permanency by adoption in the pre-adoptive home with her siblings.
Florida Department of Children and Families v. N.M., 2015 WL 5614852 (Fla. 3rd DCA)

The Florida Department of Children and Families (Department) appealed an order fining the Department $500 for failing to file a case plan seventy-two hours prior to a reunification hearing. The Department asserted that the trial court did not permit the Department the opportunity to present evidence against on the issue of contempt. The Third DCA agreed that Department was entitled to a reasonable opportunity to respond and reversed the order imposing the fine.

Fourth Circuit
W.L. v. Department of Children and Families, 172 So.3d 562 (Fla 4th DCA 2015)

Mother appealed termination of her parental rights. The Fourth District Court of Appeal (Fourth DCA) vacated the order and remanded, without addressing Mother's arguments, based on the trial court's failure to recite a number of required factual findings and conclusions of law in its final written order.
 
The Fourth DCA found that rather than issuing specific findings and conclusions of law, the trial court concluded only that the Department met its burden in establishing the allegations set forth in the petition. Without specific findings and conclusions the Fourth DCA was unable to meaningfully review the trial court's order.
 
Read the Opinion  
Fifth Circuit 
A.D. v. Department of Children and Families, 2015 WL 5163712 (Fla. 5th DCA)
 
Father appealed the termination of his parental rights based on abandonment. The Fifth Circuit Court of Appeal (Fifth DCA) reversed the termination finding the record did not support a finding of abandonment and that the evidence did not rise to a level justifying termination.

Florida Statute § 39.01 defines abandonment as "a situation in which the parent or legal custodian of a child . . . while being able, has made no significant contribution to the child's care and maintenance or has failed to establish or maintain a substantial and positive relationship with the child, or both." The Fifth DCA found the evidence supported a finding Father failed to provide any financial support for the child but the Department of Children and Families failed to establish whether the Father was able to provide any such support. Further evidence included that Father maintained contact with the child and that the child lived with her paternal aunt.

The Fifth DCA found that the record did not support a finding that Father failed to substantially comply with the case plan. Father's case plan listed one duty, to complete a batterer's intervention program. At the time of trial, Father had completed all but three classes. The Fifth DCA did note, however, that Father failed to start the program until after the petition for termination was filed and maintained inconsistent attendance.

Training Updates and Resources  kids_holding_signs.jpg
 
Do you want to better understand the rights of  students with special needs to improve your representation? Special Education Law, presented by Prof. Paolo Annino, a Glass Professor Public Interest Law at Florida State University, will strengthen your knowledge. Special Education Law is specially designed instruction that addresses the unique needs that result from a child with a disability. Learn about the Individuals with Disabilities Education Act (IDEA), Individual Education Programs (IEP), disciplinary procedures for children in special education programs, and the appeal process for state and federal laws applying to children with special needs.  Visit Guardian ad Litem Program Training.

Archived Training

 

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