Tuesday, October 8, 2013

JB v. DCF 107 So.3d 1196 (2013).


Here's another interesting case, in the area of child abuse / dependency / child protection / termination of parental rights:

http://scholar.google.com/scholar_case?case=15051245391346990206&hl=en&as_sdt=2,10

This is a case out of 1st DCA, in Tallahassee. In JB, the DCF removed six children from the home, based on allegations of child neglect, including medical neglect. Admittedly, the family had had multiple problems, and they had been involved in prior dependency cases.

What makes many dependency cases interesting, from a psychologist point of view, is that termination of parental rights (section 39.806, F.S.) requires TWO findings:
1. when the child has been adjudicated dependent, and
2a. the child continues to be abused, or
2b. the parents fail to substantially complete the case plan, or
2c. even if the parents completed the case plan, the continuing involvement of the parents threatens the well-being or mental or emotional health of the children

BTW, these cases need to be won at the trial level, because the standard of review is the highly deferential "no one could reasonably find such evidence to be clear and convincing" standard  A.H. v. Fla. Dep't of Children and Family Services, 85 So.3d 1213, 1215 (Fla. 1st DCA 2012).

IOW, based on the above criteria, the psychologist expert must make a risk determination / assessment regarding whether there is a substantial risk of significant harm, and whether termination of parental rights is the least restrictive means of protecting the child.

In this case, the question was whether the three years that had passed, from 2009 to 2012, would be relevant to a risk assessment. The mistake made by the trial court was to rely solely on the then-three-year-old determinations of dependency, without consideration of other evidence.

Further, the 1st DCA reminds us that the burden is on DCF to prove the risk, at the clear and convincing level.

The Court observed that there was numerous evidence of a lack of risk, including residences that were not unclean, unsafe, or unsuitable, a lack of substance abuse, no evidence of behavior that could be considered to present a risk to the children, or any substantial harm to the child in question. The Court also observed that DCF failed to perform its job, including a reunification case plan and proving that termination was the least restrictive means of protecting the child.

Although prior terminations can be considered as evidence, that was not sufficient to establish future risk, because there was no nexus between the past events and predicted future behavior - even if they are poor and their housing unstable.

Prediction of future risk requires an assessment that the future behavior "can be clearly and certainly predicted"  Palmer v. Dep't of Health & Rehabilitative Servs., 547 So.2d 981, 984 (Fla. 5th DCA 1989)One example of this is "if the parent is so afflicted that no reasonable basis exists for improvement" L.B. v. Dep't of Children & Families, 835 So.2d 1189, 1195 (Fla. 1st DCA 2002).

The Opinion does not state whether an expert provided an opinion in this case. An expert opinion is often required, and is sometimes misused by DCF. The reason that it is misused is that experts often make predictions of child abuse that is based more on personal opinion than on science. An additional problem, in the area of child abuse, is that the research is relatively sparse. Termination of parental rights has been called, by Randy Otto, PhD, the 'red headed stepchild' of psychology. It receives little attention or research funding, and experts are often left with little to stand on.

I'm hoping that the new Daubert evidence law will improve the situation. It will depend, in large part, on the willingness of the Courts and defense attorneys to cross examine experts and bring us, kicking and screaming, into the 21st Century.
Bruce Borkosky, Psy.D.
www.FL-forensic.com





2 comments:

  1. Dr. Borskosky, I am defense counsel on dependency/ and TPR's. Do you know of any cases outlining what kind of services should be given to a mentally ill mother ( bi-polar and psycho affective disorder) besides psychiaric treatment? Thanks.

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    1. I can look them up, if you want, or you can find most of them on the GAL website. In general, the court will want assurance that the services can remediate whatever is causing the parent's risk. The Court will also weigh availability of the services and the cost to DCF. For a mentally ill parent, this will almost always include meds, and typically some kind of counseling. I would almost always recommend preventive services - IOW, if the problems occurred while shopping, or after school, then additional help can be provided in that area, as a prophylactic. It all depends on what kinds of things are triggering the problems, and what the exact problems are. Sometimes more frequent contact is all that is needed, such as a daily 5 minute visit, or phone call, or additional visits from social service agencies.

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