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Is HB 803 More Likely to Cause Another Barahona Than Prevent One?

Posted on February 17, 2012

House Bill 803 (the Silver Bullet Bill) has passed unanimously in the Florida House. Since its being hailed as the thing that will prevent Barahona from ever happening again, lets take a look at what it actually does. Spoiler alert: it does very little that would have actually prevented Barahona, and does a few things that may make another Barahona MORE likely. So good work, everyone. These are my first thoughts, subject to change, revision, and complete disavowing later. Here we go 1. Makes it easier to terminate someones rights for abandonment. This change has nothing to do with Barahona. Currently, in order to prove abandonment, you have to prove both that the parent (1) had no relationship with the child, AND (2) provided no monetary support. The examples I usually give are these: If you leave your child on a street corner, you havent abandoned her as long as you send cards every week and listen to her problems (relationship!). (Note: you have possibly neglected her, depending on her age and ability to care for herself.) If you quit sending cards and instead send a check (financial support!), you still havent abandoned her even if she has never met you in person (See Dickens, Charles. Great Expectations.) It is only abandonment under current law if you fail to send cards AND fail to send money. By changing the and to an or it will be required that you send cards with money in them or face losing your kids. In either case, cards may not be sufficient given your ability to have a more substantial relationship. If you live two blocks over and only send cards, thats not going to be enough. Additionally, repeated or extended incarceration is now a recognized form of abandonment. How repeated or extended does it have to be? The statute doesnt say. How is this extended incarceration different from the significant incarceration required in the new 39.806(1)(d)? Thats not clear either.

DCFs Response: The proposed changes to the definition of abandonment and the incarceration ground for termination of parental rights are in response to case law applying the current definition of abandonment and the provisions of 39.806(1)(d) setting forth when incarceration of a parent can be a ground for termination of parental rights. Some of those cases are summarized below. Currently, if an incarcerated parent is not sentenced to a term of incarceration for more than half of the childs remaining minority, incarceration will not justify a termination of parental. The ground for termination would then have to be abandonment. As currently defined, if an incarcerated parent sends cards to the child, a termination of parental rights cannot be granted. As an example to illustrate this issue, a four year old child cannot achieve permanency if her father is in prison for the next six years and simply writes her a letter periodically. She will be ten years old when he is released (less than half of the fourteen years of her remaining minority) and the child could have conceivably spent six years in foster care as a result. The application of current statutes result in a cold mathematical formula being used to determine parental rights rather than giving greater weight to a childs need for permanency. Additionally, the parent who is in and out of jail constantly may not meet either of the current grounds for termination of parental rights based upon abandonment or incarceration if he or she spends some time with his or her child between stints in jail. This is not what children are entitled to from their parents and should be capable of resolution under Chapter 39 proceedings. The proposed statutory changes set out what a court must consider before terminating an incarcerated parents rights whether for abandonment or for incarceration. The changes to the definition of abandonment and incarceration as a ground for termination of parental rights will permit courts to do the right thing for a child on a case by case basis. The criteria proposed for a court to consider under the incarceration ground that will replace the mathematical formula are: 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.

As with many things in the law, and particularly with laws governing family relationships, it is very difficult to create bright line rules. The current statues are resulting in children not achieving permanency. The proposed changes seek to make permanency possible in the right cases. Here are a few cases that illustrate why these changes are being proposed. L.K. v. Department of Children and Families, 62 So.3d 1241 Fla.App.4.Dist.,2011 Statutory test for abandonment, which is ground for terminating parental rights, is a two-prong test: (1) the parent must have been able to support the child; and (2) the parent failed to establish a relationship with the child. In this case, L.K., the mother, sent G.B., the child, several cards and letters through G.B.'s grandfather during her incarceration. According to L.K., she tried to call the Department to find out about her child, but she was unable to get through because she could only call collect. So, instead, she called G.B.'s grandfather for updates, including photographs and information regarding the well-being of the child. Therefore, even though L.K. was unable to make contact with G.B., L.K. evinced intent to contact her child, have visits with her child, and receive information, photographs, and updates. Termination of parental order was reversed. I.Z. v. B.H., 53 So.3d 406 Fla.App.4.Dist.,2011 In support of their petition for termination of child's mother's parental rights on ground of abandonment, child's potential adoptive parents failed to make the necessary showing by clear and convincing evidence that mother abandoned the child; evidence showed that since the child's initial removal from her home, mother had made a dedicated effort to maintain contact with the child, her failure to visit with the child for a year preceding the final hearings was explained by her incarceration for nine months and by the fact that after her release, she was not permitted visitation with the child because the termination proceedings were pending, and mother testified that she sent a birthday card to the child while she was incarcerated. West's F.S.A. 39.01(1), 39.806(1)(b). In re G.M., Jr., 71 So.3d 924.Fla.App.2.Dist.,2011 Father communicated with child as best he could while incarcerated, and thus trial court could not terminate father's parental rights on the basis of abandonment; father wrote to mother and foster caregiver inquiring about child's welfare, father sent photographs of himself for child, father inquired through Department of Children and Family Services as to child's progress and status, father responded to letters from Department in reference to mother's case plan tasks, and father transferred to a facility where he completed a parenting class. West's F.S.A. 39.806(1) (b). Here is a case where termination of parental rights was upheld for parents who were repeatedly incarcerated. The new statutes will codify such a result. J.G. v. Department of Children and Families, 22 So.3d 774 Fla.App.4.Dist.,2009 Competent substantial evidence supported trial court's finding that parents engaged in episodic abandonment of child, so as to support termination of parental rights; parents were given

multiple opportunities to reunite with child but repeatedly committed crimes and were incarcerated, thereby leaving child to languish in the foster care system for years Here are the proposed changes. 39.01 Definitions.When used in this chapter, unless the context otherwise requires: (1) "Abandoned" or "abandonment" means a situation in which the parent or legal custodian of a child or, in the absence of a parent or legal custodian, the caregiver, while being able, has made makes no significant contribution to the child's care and maintenance or provision for the child's support and has failed to establish or maintain a substantial and positive relationship with the child, or both.. The incarceration, repeated incarceration, or extended incarceration of a parent, legal custodian, or caregiver responsible for a child's welfare may support a finding of abandonment. (37) "Harm" to a child's health or welfare can occur when any person: (e) Abandons the child. Within the context of the definition of "harm," the term "abandoned the child" or "abandonment of the child" means a situation in which the parent or legal custodian of a child or, in the absence of a parent or legal custodian, the caregiver, while being able, has made makes no significant contribution to the child's care and maintenance or provision for the child's support and has failed to establish or maintain a substantial and positive relationship with the child, or both. 39.806 Grounds for termination of parental rights. (1) Grounds for the termination of parental rights may be established under any of the following circumstances: (d) When the parent of a child is incarcerated in a state or federal correctional institution and either: 1. The period of time for which the parent is expected to be incarcerated will constitute a significant substantial portion of the child's minority. When determining whether the period of time is significant, the court shall consider the child's age and the child's need for a permanent and stable home. The period of time begins on the date that the parent enters into incarceration period of time before the child will attain the age of 18 years; 2. The incarcerated parent has been determined by the court to be a violent career criminal as defined in s. 775.084, a habitual violent felony offender as defined in s. 775.084, or a sexual predator as defined in s. 775.21; has been convicted of first degree or second degree murder in violation of s. 782.04 or a sexual battery that constitutes a capital, life, or first degree felony violation of s. 794.011; or has been convicted of an offense in another jurisdiction which is substantially similar to one of the offenses listed in this paragraph. As used in this section, the term "substantially similar offense" means any offense that is substantially similar in elements and penalties to one of those listed in this subparagraph, and that is in violation of a law of any other jurisdiction, whether that of another state, the District of Columbia, the United States or any possession or territory thereof, or any foreign jurisdiction; or 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.

Are these good changes? Depends on how you feel about terminations of parental rights and how much you want to dig into the socio-economic factors behind them. Chronic jail stints may be a sign of mental health issues (note that 39.806(1)(d) was added to the list of situations where reasonable efforts are NOT required); failure to pay child support may be a result of a bad economy instead of bad intentions. The State (DCF, judges, etc) will have more discretion to take kids away from loving but poor homes. I expect the Manifest Best Interests factors and Least Restrictive Means analyses will have to go into overdrive to prevent unjust results.

DCF Response: DCF does not remove children or seek to terminate parental rights simply because a family is poor. If a child is in a loving home and is not being abused, abandoned, or neglected, the child is not dependent. Indeed, being homeless is not a basis for sheltering a child as set forth in the case law below.
C.S. v. Department of Children and Families, 41 So.3d 368 Fla.App.1.Dist.,2010 Removal of a child from his or her parent for abuse, neglect, or abandonment cannot be established based on the parent's homelessness derived solely from a custodian's financial inability unless the Department of Children and Families offers services to the homeless custodian and those services are rejected. M.B. vs. Department of Children and Family Services, 985 So.2d 1178 (Fla. 3rd DCA 2008) The court entered a dependency shelter order continuing the placement of D.B. in a shelter. This order states that allowing D.B. to remain with his mother M.B. would be contrary to D.B.s welfare because M.B. has no shelter for D.B. and the M.B. was currently homeless. The shelter order departs from the essential requirements of law because: (1) the only grounds for it was that M.B. was homeless; (2) the evidence showed that M.B.s homelessness was for only one night, that M.B. had tried to find shelter for that night, and that her inability to do so was due

only to her financial situation; and (3) no evidence showed that the Department (or anyone else) offered any services to M.B., in an effort to eliminate the need for the removal and placement in a shelter of M.B.s minor son. In Brown v. Feaver, 726 So. 2d 322 (Fla. 3d DCA 1999), we stated that [h]omelessness, derived solely from a custodians financial inability does not constitute the kind or level of abuse, neglect, or abandonment necessary to justify the removal of a child, unless the Department of Children and Family Services offers services to the homeless custodian and those services are rejected. Id. at 324.

2. Creates a jurisdictional hook and adds procedures for 39.504. Currently nobody is really sure what jurisdiction the court has to issue 39.504 injunctions in cases that dont even have case numbers yet because theres been no shelter or dependency petition. This clears that up. This seems like a good change. The bill also adds a bunch of procedures for initial injunctions. Thats also somewhat welcome. Obviously this is all a response to DCF v. D.B.D., 42 So.3d 916 (Fla. 4th DCA 2010). What isnt addressed is that this whole scheme may be unconstitutional. Under this law, based solely on probable cause, you can order someone out of their house, to have no contact with their children, to undergo services, and to pay for someone elses servicesall for a possibly indefinite amount of time with no apparent standard for when the injunction must be lifted. In fact, one House subcommittee analysis says This change will assist DCF by not requiring one of these other petitions when all that may be needed to resolve a situation is an injunction to protect the child. I think this is ripe for abuse. DCF Response: When balancing the constitutional rights of a parent to be free from governmental intrusion against the exercise of the police power of the state to protect its most vulnerable citizens (children), the courts have repeatedly held that protecting children is more important. This is why it is constitutional for DCF to remove a child based upon probable cause without a prior court hearing. Doe v. Kearney, 329 F.3rd 1286 (11th Cir. 2003). The injunction is to be entered upon a finding of reasonable cause.

Similarly, under the civil injunction statute, F.S. 741.30(6)(a), when it appears to the court that the petitioner is either the victim of domestic violence or has reasonable cause to believe the petitioner is in imminent danger, then the court may grant such relief as the court deems proper including restraining the respondent from committing acts of domestic violence, awarding child support, time sharing for the children, ordering counseling, and exclusive use of the property. This statute clearly passes constitutional muster. 3. Allows jurisdiction over kids who are not in anybodys custody. This cleared up a drafting quirk. Ive never heard of any court denying jurisdiction because the child was a runaway, but just in case DCF Response: Agreed. 4. Changes the background checks in home studies. Under current law, the homes of potential custodians have to undergo a home study and all persons in them must have background checks with fingerprinting, even the babies. This was obviously silly. This is a good change. What is more serious, however, is that frequent visitors to the home also currently have to be screened. How frequent is frequent? Nobody knows. Boyfriends and girlfriends are usually included, but what if the custodian has a weekly bridge club? Do all of the old ladies have to undergo fingerprints, and when they dont cooperate do the children have to stay in foster care? This rule, as it stands, is completely unworkable. The amendment makes it worse by removing the word frequent and requiring ALL visitors to the home to have background checks and fingerprints. Nobody can come across the threshold unless they have FBI clearance. I cant imagine any reasonable person volunteering to take a child into their home under such constraints. You couldnt even have a normal birthday party. I understand the horrible stories about the unscreened boyfriends who kill foster kids, but those are extreme cases, not the norm. You should do a background check on the person you are entrusting the child toit is then their job to make sound

decisions about who is involved in the childs life. You cant screen everyone who will ever be in the same room as a foster childits unrealistic. At some point you have to trust. This is a terrible amendment and I hope nobody seriously enforces it. DCF Response: A careful review of the proposed statute will show that while background screening of persons being considered for placement does require a local and statewide criminal records check for household member, such a check is discretionary for visitors. This is evidenced by the use of the word may rather than shall [see proposed statutory language below for both F.S. 39.0138 and 39.531(2)(r)] when detailing the screening for visitors. The intent of the change is to give the person doing the home study the power to screen anyone who will be in contact with the child and to use discretion in determining when that is needed. For example, if the childs grandmother spends every weekend at the home and the case manager chooses not to conduct a background screen on her, this is acceptable. The term frequent visitors was removed from the statute for the reason identified. Frequent was not defined and created confusion. The changes proposed permit the exercise of common sense in background screening.

39.0138 Criminal history and other records checks check; limit on placement of a child. (1) The department shall conduct a records check through the State Automated Child Welfare Information System (SACWIS)and a local and statewide criminal history records check on all persons, including parents, being considered by the department for placement of a child subject to a placement decision under 233 this chapter, including all nonrelative placement decisions, and all members of the household, 12 years of age and older, of the person being considered, and frequent visitors to the household. For purposes of this section, a criminal history records check may include, but is not limited to, submission of fingerprints to the Department of Law Enforcement for processing and forwarding to the Federal Bureau of Investigation for state and national criminal history information, and local criminal records checks through local law enforcement agencies of all household members 18 years of age and older and other visitors to the home. An out-of-state criminal history records check must be initiated for any person 18 years of age or older who resided in another state if that state allows the release of such records. A criminal history records check must also include a search of the department's automated abuse information system. The department shall establish by rule standards for evaluating any information contained in the automated system relating to a person who must be screened for purposes of making a placement decision.

39.521 Disposition hearings; powers of disposition. (2) The predisposition study must provide the court with the following documented information: (r) If the child has been removed from the home and will be remaining with a relative, parent, or other adult approved by the court, a home study report concerning the proposed placement shall be included in the predisposition report. Before Prior to recommending to the court any out-ofhome placement for a child other than placement in a licensed shelter or foster home, the department shall conduct a study of the home of the proposed legal custodians, which must include, at a minimum: 1. An interview with the proposed legal custodians to assess their ongoing commitment and ability to care for the child. 2. Records checks through the State Automated Child Welfare Information System (SACWIS) Florida Abuse Hotline Information System (FAHIS), and local and statewide criminal and juvenile records checks through the Department of Law Enforcement, on all household members 12 years of age or older. In addition, the fingerprints of any household members who are 18 years of age or older may be submitted to the Department of Law Enforcement for processing and forwarding to the Federal Bureau of Investigation for state and national criminal history information. The department has the discretion to request State Automated Child Welfare Information System (SACWIS) and local, statewide, and national criminal history checks and fingerprinting of any other visitor to the home who is made known to the department and any other persons made known to the department who are frequent visitors in the home. Out-of-state criminal records checks must be initiated for any individual designated above who has resided in a state other than Florida if provided that state's laws allow the release of these records. The outof-state criminal records must be filed with the court within 5 days after receipt by the department or its agent.

5. Parents can call cases in on themselves and receive services. Its rare, but it happens. I think this is ok. It provides a clear safety valve for cases that dont appear to be dependencies but would otherwise be designated as such out of sympathy for a struggling parent. DCF Response: Agreed. 6. Protective investigators can stop investigations if they deem them based on false allegations. This was happening more or less anyway. CPIs would just stop working as hard now they can stop working altogether. DCF Response: The current statute requires that once a report is accepted for investigation, a complete investigation must be conducted. Even under the current statute, there is no empirical evidence that a CPI would just stop working as hard if it was believed that an investigation was false.

There were other problems with the original statute, though. Assume that the Department gets it wrong: the allegations are accurate but the Department does not or chooses not to believe them. The current rule requires them to then get permission from the alleged abuser (who will say no!) in order to forward the information to the police. Thats ridiculous. If they think a crime has occurred, they should be required to forward it to the police to determine if the allegations were in fact false. Hopefully the police will do an investigation and discover that the allegations were in fact true. Will the police make that effort? Thats another legal problem altogether. DCF Response: The victim of a false report is the person against whom the allegation is made. This victim of the false report should have the right to determine whether a subsequent criminal complaint should be made. For example, if your car is broken into, you are not required to call law enforcement unless you choose to do so. Similarly, if DCF investigates an allegation of child abuse and determines that it is false, the person who is investigated may wish for the governmental intrusion to end at that time and for no further action to be taken other than closing the abuse investigation as a false report. The victim of a false report should have the power to say this is the end of this investigation. Also, in the seven counties where law enforcement performs the CPI function, the CPI can take action to pursue the false report as a criminal act. Even in these counties, as with the investigation of any alleged crime, it is within the discretion of the officer whether to pursue the criminal investigation when to cease activity. Finally, none of the current provisions relating to false reporting are the subject of this bill. This change creates incentives to halt investigations prematurely. Who determines that an abuse report was falsely called in? DCF Response: The CPI responding to the investigation will make the initial determination if the report is false. For a report to be false as opposed to a determination that the allegations are unsubstantiated, there must be a determination that the false report was made knowingly and willingly. If the CPI determines the report is false, referral of the case to law enforcement is at the discretion of the victim, F.S. 39.205(5). An administrative proceeding under Chapter

120 can be commenced without the permission of the victim. The ultimate determination as to whether a report is false would be made by law enforcement and the criminal justice system and/or by an administrative law judge. How is that reviewed and monitored? DCF Response: The CPI supervisor must approve any basis upon which an investigation is to be closed, including a finding that the report was false. The Department must report annually to the Legislature the number of false reports referred to law enforcement, F.S. 39.205(4). How can the public know that CPIs will not just ignore calls they dont want to work on for various reasons, be they political, personal, or racial biases, or just plain laziness. Its so easy in early investigations to choose to disbelieve, when all of the facts arent yet in. If anything caused Barahona, it was exactly this. Youre going to ask Carmen Barahona if its ok to forward the allegations against her to the police and just stop all investigation when she says no? What a legacy to enshrine in law. DCF Response: With the addition of new positions for CPI and CPI supervisors, the reduced work load will permit greater oversight of the work of individual investigators. The public will not generally know when investigations are done competently. As is the case presently, however, the public will know when calls are not investigated properly as a result of oversight by the media, GAL, citizen review panels, child advocates, foster parents, the Legislature, the courts, plaintiffs attorneys and others who scrutinize the work of the Department and its CPIs on a daily basis. 7. Reworked the protective investigation requirements. Who knows if this will have any effectyou cant regulate incompetence. But answer me this: with their track record, why is the Department being given more discretion to not file cases? Is this based on any empirical study or is this just a swing of the pendulum? Wasnt the lesson from Barahona the danger of failing to act on reasonable suspicion?

DCF Response: It is agreed that you cant regulate incompetence. You can, however, eliminate incompetence when you have enough trained, committed, adequately compensated persons performing this critical work. Giving investigators the ability to end an investigation when it is appropriate, rather being required to complete a full investigation in every case when a full investigation is not warranted, will allow the same investigator to then shift to working on the next case rather than fully completing a pre-determined set of tasks on the current case. Hiring the right people, training them properly, making their workloads manageable, rewarding them for experienced gained, and empowering them to use their judgment will result in better investigations and fewer breakdowns in the system. 8. Reintroduces maintain and strengthen as a permanency goal. There once was a permanency goal called maintain and strengthen, which was what you did when a child wasnt removed from the parent. Then that goal was eliminated and you just had reunification. This was fine, unless you sheltered a child from one parent and placed him with a non-offending parentthe goal implied that you had to eventually reunify the child with the offending (but presumably rehabilitated) parent. Cases came down left and right finding a due process violation for giving a parent a case plan and then not giving them their child back at the end of it. Children were ripped from the non-offending parent, with no considerations for their well-being. It was a huge mess. Now you can signal that those kids are staying put. This change is good if people use it correctly. DCF Response: We will use it correctly. 9. Attempts to fix the how long can a case plan be for? problem. Currently there is some cryptic language about the term of a case plan being 12 months from either the date the child was removed or the date the case plan was accepted, whichever occurs sooner. The word sooner, of course, has huge relativity problems: sooner than what? The bill changes the word sooner to first (good!) and adds the date the child was adjudicated dependent as another possible time post (ok). DCF Response: Agreed.

What they dont do is alleviate any of the contradiction that there isnt just one case plan, nor do they acknowledge that a series of case plans can actually extend way beyond 12 months. If this was intentionalthat no case shall ever go longer than 12 months for any reasonthen I wish they would just say it and let the court find it unconstitutional and move on. DCF Response: The current discrepancy between F.S. 39.806(1)(e) with a 9 month provision and the rest of Chapter 39 with a 12 month provision was the result of a change to the statute made at the very end of the 2008 legislative session. It is not clear why this change was made and why it was not made throughout Chapter 39. Making the statute consistent will eliminate confusion. As pointed out, the ability to pursue a TPR before 12 months for an anticipatory breach of the case plan remains an option under the law. This change will not have an impact on achieving timely permanency for children. Additionally, it will eliminate a potential appeal of a TPR begun at the 9 month mark where no anticipatory breach is present. Each child has a case plan and his or her own permanency goal. A permanency hearing is required to be held at the twelve month mark, F.S. 39.621. The statutes are clear as to the limited grounds upon which a court may extend a reunification case plan beyond twelve months, F.S., 39,701(10) and 39.8055. If the law is followed and the court holds each party to compliance with the tasks of the reunification case plan, there should not be a series of case plans other than the presumptive reunification case plan goal followed at the twelve month mark by a case plan with a goal of adoption, permanent guardianship, permanent placement with a fit and willing relative, or placement in another planned permanent living arrangement, and, if the bill is passed, maintain and strengthen. 10. Changes the incarceration TPR ground. You can terminate a parents rights in Florida if they will be incarcerated for a substantial portion of the childs minority. The Supreme Court has decided that this substantial portion is purely a numbers gameapproximately 60% of the time between now and the childs 18th birthday is substantial. This has perverse results: a parent must be incarcerated for 11 years to terminate their rights to a newborn, but only 1 year to terminate their rights to a 16.5-year old. I dont know if changing the world substantial to significant actually prevents the court from coming to the same conclusion, except that everyone knows that nobody liked the first conclusion

they came to. This language about consider the childs age and the childs need for a permanent and stable home is also weird to me because those are best interests factors. Dont repeat them in the grounds! Grounds are for what the parent has done wrong. Best interests are for the subjective considerations of whether the TPR is appropriate for this child. The drafters would have done better to just make a chart and tell us exactly how many prison years they want us to use and then we can talk best interests when overriding those numbers. This amendment is just more of the same confusion we already had. DCF Response: When a parent is incarcerated, the decision of whether or not to terminate parental rights should not be based upon application of a mathematical formula or a chart. Children are not numbers. The facts of each childs case are unique. The proposed changes give the court the discretion to do what is right for the individual child rather than being tied to calculating a fraction of years of minority versus length of sentence. Also see Response to Number 1 above. 11. Adds factors to the best interests incarceration ground. We generally believe as a society that we shouldnt TPR just because it is best for the child, but instead because the parent has actually done something wrong. On this Judge Schwartz and I agree. This ground, 39.806(1)(d)3, was always the worst offender of TPR for best interests because it literally says to TPR for best interests if the parent is in jail. The newly added factors dont really change that and actually seem to just blur the lines between TPR for abandonment. The factor any other factor the court deems relevant is such a catchall that it swallows whatever rule they were trying to create. Thats no help at all. This ground should be removed, not polished. DCF Response: Setting forth the factors the court should consider in determining whether continuation of the parental relationship with an incarcerated parent will be harmful to the child will make it easier for trial attorneys, trial judges, and appellate courts to know what evidence should be presented and reviewed if this ground is utilized. As opposed to abandoning the ground altogether this change makes it more likely that it will be applied uniformly and remain an additional option to obtain permanency for a child.

12. Changes 39.806(1)(e) back to 12 months. Well at least someone noticed this conflict. A case plan runs for 12 months, but a past amendment to 39.806(1)(e) allowed a TPR at 9 months. We already have a material breach provision that allows bringing TPRs if the parent looks unlikely to finish in under 12 months. Changing it to 9 didnt help, and actually only rushed things for people who were still genuinely trying. DCF Response: This conflict has been noticed since it first appeared. Unfortunately, it was not considered significant enough on its own to warrant correction since 2008 and can now be remedied as part this bill.

13. Modifies the statutory reasonable efforts requirements. This was always strange to me. Reasonable efforts to reunify a family are statutorily waived in certain situations. These are often thought of as the expedited TPR scenarios. Courts have generally ignored those enumerated situations except when they correspond to their own least restrictive means jurisprudence. Instead of calling it quits, the legislature is actually seeking to modify the list that was generally being ignored. The modifications are as follows: abandonment and irrespective of services are added to the list of situations in which you dont need reasonable efforts (i.e., you can file an expedited TPR), but failure to comply with a case plan is removed (which maybe wouldnt have made any sense at the beginning of a case anyway). These changes have their own problems. If you take the list as exclusive, it implies that reasonable efforts to reunify ARE REQUIRED when a parent attempts to surrender under 39.806(1)(a). Imagine: a parent surrenders and the department then has to attempt to talk them out of it? It also implies that reasonable efforts must continue even if the court finds material breach under 39.806(1)(e)(2). Maybe the efforts are impliedly no longer reasonable? Itll take four or five court decisions to hash that out. This no reasonable efforts broad categorization is not helpful at all. Let MBI and LRM sort out whats ripe for TPR and whats not.

DCF Response: The change of grounds for termination of parental rights under F.S. 39.806(1) which do not require prior reasonable efforts by the Department to preserve the family before termination can be sought is proposed to correct a scriveners error. Currently, the list of exclusions includes 39.806(1)(e)-(l). Clearly, reasonable efforts by the Department to assist a parent with reunification tasks are required for a reunification case plan and should not be exempted. On the other hand, reasonable efforts are not required by the Department if the ground for termination is abandonment, 39.806(1)b), continuing course of conduct of the parent, 39.806(1)(c), or incarceration of the parent, 39.806(1)(d). F.S. 39.806(1)(a) permits termination of parental rights if a parent signs a voluntary surrender. The Department may or may not be involved with the family at the time of the execution of the surrender. Hence, exemption from reasonable efforts is not required if the Department is involved, the surrender document will constitute a waiver of any such reasonable efforts to preserve the family. If the Department is not involved, no reasonable efforts could have been provided prior to execution of the surrender. Conclusion: theres some good, bad, and ugly in there. I certainly wouldnt vote yes on it, but apparently the entire House disagrees with me. Maybe someone in the Senate will actually read more of it than just the title. DCF Response: It is assumed that House members read more than the title of every bill before voting to make any bill a law. As part of the normal legislative process, the Department has responded to numerous inquiries from both the House (and the Senate) regarding every provision in this bill many of these inquiries raised the same issues set out above. The House was well informed and knew exactly what it was voting for when the votes were cast.

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