Common Challenges Filing and Adopting Petitions - PowerPoint Presentation

Common Challenges Filing and Adopting Petitions Guardian ad Litem Program 9 th Circuit - Osceola County

9th Circuit TOPIC OF THE MONTH – Part One Adopting/Filing Dependency and/or TPR Petitions, Prepping your Witness, Request for Litigation Funds, and Opposition by DCF

Rule of Juvenile Procedure 8.310(e) The petitioner without leave of the court, at any time prior to entry of an order of adjudication, may request a voluntary dismissal of the petition or any allegations of the petition by serving a notice requesting dismissal on all parties, or, if during a hearing, by so stating on the record. The petition or any allegations in the petition shall be dismissed. If the petition is dismissed, the court loses jurisdiction unless another party adopts the petition within 72 hours. Adopting Dependency Petitions

Rule of Juvenile Procedure 8.500(f) Voluntary Dismissal. The petitioner, without leave of the court, at any time before entry of an order of adjudication, may request a voluntary dismissal of the petition by serving a notice of request of dismissal on all parties or, if during a hearing, by so stating on the record. The petition shall be dismissed and the court loses jurisdiction unless another party adopts the petition within 72 hours. Unless otherwise stated, the dismissal shall be without prejudice.  Adopting TPR Petitions

As a general rule, if the Department dismisses their petition, never waive the 72 hours available to you to adopt the petition. When the Department dismisses a petition at a hearing, always notify the Court that the GAL will take the 72 hours to staff and make a determination as to whether to adopt the petition. Immediately notify your supervising attorney of the dismissed petition, and schedule a staffing with your team. Adopting Petitions

§39.501(1), Florida Statutes (2016) All proceedings seeking an adjudication that a child is dependent shall be initiated by the filing of a petition by an attorney for the department, or any other person who has knowledge of the facts alleged or is informed of them and believes that they are true . Filing Petitions

If the Department refuses to file a TPR petition: All egregious abuse cases should be staffed with your supervising attorney, prior to disposition , to determine whether the GAL should file a TPR petition. Egregious abuse cases need to be identified at Shelter and worked from Shelter as such, as your timeframes are much shorter than if filing a TPR for failed case plan. Staff the case with your volunteer and CAM. Your supervising attorney can also reach out to your Regional Legal Counsel and Chris Andriacchi, Esq., for additional input and trial strategies. Do not be afraid to fight for permanency for your kids, and staff cases for possible TPR, especially if beyond a year from Shelter. Filing Petitions Continued

If the GAL adopts a Dependency or TPR petition or files a petition, the dynamics at trial will be different. Ensure you prepare your volunteer for cross-examination not only from parents’ attorneys, but also DCF. DCF may be more aggressive with the volunteer. As the petitioner, the volunteer will need to have a strong handle on the facts of the case, details, dates, and observation of the parents. It is helpful if the volunteers also have communication with the parents. Prepping Your Witness

See form attachedObtain an estimated fee for testifying, from the witness, prior to a hearing or trial. Provide the estimate, along with the completed Request for Litigation Fund Form to your supervising attorney. Upon receipt of the bill, provide the bill and the approved Request for Litigation Fund Form to your supervising attorney for payment. Request for Litigation Funds

Request for Litigation Funds

Disposition Typically, it is best practice to object to the Court proceeding to dependency disposition when the GAL has filed a TPR petition. Once the Court has accepted a Reunification Case P lan, the parents will have a valid argument that they are entitled to a year to complete their case plan, as a defense to the TPR petition. If proceeding on an egregious abuse TPR, ensure the Court does not accept a Reunification C ase P lan for the parents. You do not want the Court to enter a finding that the reasons for removal can be remedied with services. The only goal we should be advocating for is Termination of Parental Rights or Adoption. Common Pitfalls

§ 39.802(8), Florida Statutes (2016) If the department has entered into a case plan with a parent with the goal of reunification, and a petition for termination of parental rights based on the same facts as are covered in the case plan is filed prior to the time agreed upon in the case plan for the performance of the case plan, then the petitioner must allege and prove by clear and convincing evidence that the parent has materially breached the provisions of the case plan. Disposition

No need to proceed on dependency petition when TPR petition is filed. § 39.802(5), Florida Statutes (2016) When a petition for termination of parental rights is filed under s.39.806(1), a separate petition for dependency need not be filed and the department need not offer the parents a case plan with a goal of reunification , but may instead file with the court a case plan with the goal of termination of parental rights to allow continuation of services until the termination is granted or until further orders of the court are issued. This does appear to be in somewhat of a conflict with the Permanency statute that indicates Adoption as the appropriate goal. § 39.621(2), Florida Statutes (2016). Disposition Continued

Rule of Juvenile Procedure 8.500(a)(3)When provided by law, a separate petition for dependency need not be filed. Disposition Continued

§ 39.811(1), Florida Statutes (2016) If the court finds that the grounds for termination of parental rights have not been established by clear and convincing evidence, the court shall: (a)  If grounds for dependency have been established, adjudicate or readjudicate the child dependent and: 1. Enter an order placing or continuing the child in out-of-home care under a case plan; or 2. Enter an order returning the child to the parent or parents. The court shall retain jurisdiction over a child returned to the parent or parents for a period of 6 months, but, at that time, based on a report of the social service agency and any other relevant factors, the court shall make a determination as to whether its jurisdiction shall continue or be terminated. (b) If grounds for dependency have not been established, dismiss the petition. Disposition Continued

§ 39.811(2), Florida Statutes (2016) If the child is in the custody of the department and the court finds that the grounds for termination of parental rights have been established by clear and convincing evidence, the court shall, by order, place the child in the custody of the department for the purpose of adoption. Disposition Continued

Rule of Juvenile Procedure 8.525(i )(2) If the court finds after all of the evidence has been presented that the grounds for termination of parental rights have not been established by clear and convincing evidence, but that the grounds for dependency have been established by a preponderance of the evidence, the court shall adjudicate or readjudicate the child dependent and proceed with dispositional alternatives as provided by law. Disposition Continued

9th Circuit TOPIC OF THE MONTH – Part Two Consent By Non-Appearance, Discovery, Prepping your Witness, and Collaborating with the Department of Children and Families

Some District Courts consider a failure to appear at an Advisory or Adjudicatory TPR hearing, following proper service and notice, a Voluntary TPR while other circuits hold that it is an Involuntary TPR Consent By Non-Appearance

The Fifth District Court of Appeal includes the 5th , 7th, 9th and 18th Circuits.   The Fifth DCA holds that prior terminations resulting from a parent’s failure to appear are involuntary because the terminations are based on allegations other than a voluntary surrender of parental rights. The District Court of Appeal, Sawaya , J., held that consent that is imposed by statute when a parent fails to personally appear at adjudicatory hearing does not transform that involuntary proceeding into voluntary proceeding, and thus, in a subsequent termination proceeding, the Department may allege the statute addressing when parental rights to siblings have been involuntarily terminated as grounds for termination. Dep't of Children & Families v. A.S. , 927 So. 2d 204 (Fla. 5th DCA 2006), disapproved on other grounds by Florida Dept. of Children & Family Services v. P.E. , 14 So. 3d 228 (Fla. 2009 ). Consent By Non-Appearance

The Second District Court of Appeal includes the 6th, 10th, 12th, 13th and 20th Circuits The Second District Court of Appeal considers terminations of parental rights resulting from consents by nonappearance to be voluntary and, therefore, not a prior involuntary termination of parental rights under section 39.806(1)(I). In re A.D.C. , 854 So. 2d 720 (Fla. 2d DCA 2003) Consent By Non-Appearance

The Supreme Court of Florida held in Florida Department of Children and Family Services v. P.E., that when a parent's consent to termination of parental rights is entered under section 39.801(3)(d), such consent necessarily precludes the parent from objecting to the Department's failure to present evidence to establish the grounds for termination alleged in the petition for termination. Florida Dept. of Children & Family Services v. P.E., 14 So. 3d 228 (Fla. 2009 )   Consent By Non-Appearance

Discovery and Records Rule of Juvenile Procedure 8.245 If Discovery is not sent out by DCF and opposing counsel following your demand, make an appointment to inspect their files. It is recommended to do this throughout your case but always do this prior to filing a TPR Petition and again prior to the trial date. .

Discovery and Records Files of the CPI/case management and CLS should be inspected. Request copies of documents that you find within their files that would be useful for your case. Do not solely rely on the Department’s files for up to date compliance documentation or records from service provider. Ensure you are reaching out to service providers throughout the life of the case and get the documents directly from them . Make sure to look at the back of documents too.

Discovery and Records Keep an eye out for FSFN chrono notes and notes from staffings – If you do not see these records within the files you inspect, request that DCF provide them. FSFN can be especially important if you will need to rely on case management testimony. FSFN should have case management notes from home visits, information regarding referrals and case plan compliance.

You may also get some useful information regarding case management’s contact or interactions with the parents on your cases that may help you prevail in a TPR trial. FSFN can contain admissions of the parents that you want to elicit through testimony of the case manager. FSFN should also contain family finding efforts made by the Department and this is important information to elicit testimony in support of MBI. Discovery and Records

It is crucial to identify the weaknesses within the case (i.e. lack of consistent communication on the part of case management, lack of reasonable efforts, lack of referrals or funding, transportation issues that went ignored). Case management files and FSFN chronos will assist in uncovering any weaknesses. When considering testimony from case management, you need to understand any potential issues or pitfalls in your case as you may need to prove the reasonable efforts component of your case, if the grounds within your TPR Petition require it. Discovery and Records

Prepping Y our Witness Minimize the chances of your witness being surprised on the stand – prep, prep, prep. Give your witness a realistic view of the players on your case. If there is an attorney who is typically confusing with his or her questions , warn your witness. Let your witness know that if they do not understand the question, they should not guess or answer what he or she “thinks” the attorney is asking. I f the question is confusing, say it is confusing and seek clarification.

Prepping Your Witness Encourage the witness to review their files/ notes and to make timelines and or a concise outline of dates and important facts. This is a helpful suggestion for your GAL volunteer or the assigned case manager as they may have many notes within their files that need to be organized. If there are specific dates or details that the witness cannot remember on the stand, explain to your witness that they can refresh their recollection. Be sure to explain that the witness cannot read from their notes when testifying but if the witness is organized, he or she can reference notes on the stand to refresh their recollection.

Ensure your witness understands to only answer exactly what is asked, especially if your witness is a lay person. If the question calls for just “yes” or “no,” the witness needs to respond with just a “yes” or “no ” as their answer. Prepping Your Witness

Collaborate with DCF Request a legal staffing to come together with the CAM assigned and/or the GAL volunteer to discuss the case with the CLS attorney and case management. This can be done prior to filing a GAL TPR Petition or as the trial approaches. This will at least give you an idea of whether the GALP and DCF are on the same page or whether you should expect opposition from DCF and why they are opposed. If you can have a heads up about why DCF is opposed, it will be easier to overcome in trial.