BEST INTEREST - Florida Department of Children and Families

BESTINTERESTPresented by:Wendie Cooper,Appellate Director, StatewideGAL ProgramAlicia Guerra,Chief Legal Counsel, StatewideGAL ProgramSeptember2012www.GuardianadLitem.org

Harm as the StandardDefined in Section§39.01(32)Definition includes willful acts• Inflicts or allows to be inflicted upon thechild physical, mental or emotionalinjury• Such acts may include excessively harshdiscipline or providing inadequatesupervision for the child’s age, ormental, emotional, or physical condition• Willful acts are those situations wherethe action is intended and does notrequire the consequences of the actionto have been intendedwww.GuardianadLitem.org

Harm as the StandardAbandonment, §39.01(1)Neglect, §39.01(44)• The parent has made no provision for thechild’s support and has neither a positivenor substantial relationship with the childAbuse, § 39.01(1)• Any willful or threatened acts oromissions that result in physical, mentalor sexual injury or harm which causes oris likely to cause physical, mental oremotional health to be significantlyimpaired• Deprivation of life’s necessities anddeprivation in the environment in whichthe child is permitted to live; when thedeprivation or the environment causessignificant impairment or the imminentrisk of significant impairment of thechild’s physical, mental or emotionalhealthwww.GuardianadLitem.org

Best Interest as the StandardWhat is Best Interest?What it is NOT• Acts and Omissions of the parentsbearing on their capacity and willingnessto parent• Parents exercising their fundamentalconstitutional right to parent• Stability and Well-being factors• Superficial• The child’s preference to live in thesubstitute home over the parents’ home• Conjecture or a generalized fear• GAL’s recommendation standing alone• Least Restrictive Means (LRM)www.GuardianadLitem.org

Harm or BI Standard?ShelterTest• Removal is necessary because:• (1) Child has been abused, abandoned, orneglected; or is in imminent danger ofillness or injury from abuse, abandonmentor neglect,• (2) parent or legal custodian has materiallyviolated a court imposed condition ofplacement, orTest (continued)• Removal in child’s best interest• The home presents a substantial andimmediate danger to the child and theprovision of appropriate and available serviceswill not eliminate the need for placement• A.M.T. v. State, 883 So. 2d 302 (Fla. 1st DCA2004)• (3) No parent, legal custodian or adultrelative known and available to providecarewww.GuardianadLitem.org

BOTH•Harm is a Threshold Question.•Court must also find removal is in thechild’s best interest.

Harm or BI Standard ?Dependency AdjudicationCompelling Interest• Any interference in the Constitutionalright to the integrity of the family whichis enjoyed by parents and child mustpromote compelling need to protect thechild• Both parents and children have afundamental liberty interest in theparent-child relationship and theintegrity of the family unitLeast Intrusive Means• State must establish a compellinginterest in protecting child from harmthrough the least intrusive means,Padgett v. Dep’t of Health & Rehab.Servs., 577 So. 2d 571 (Fla. 1991)• LRM test requires the petitioner to provethat the child will be demonstrablyharmed without state interference withparental decision making, Beagle v.Beagle, 678 So. 2d 271 (Fla. 1996)www.GuardianadLitem.org

Harm•The court must reviewthe evidence by apreponderance standardand affirmatively find“harm” as defined inFlorida Law.

Harm as the StandardPlacement with Noncustodial Parent who was not cause ofDependency at DispositionRequirement to Place• When a child is adjudicated dependentwith findings that only one parent wasthe cause of dependency, the court isrequired to place with the parent whowas not the cause of the dependencyunless there is evidence that placementwould endanger the safety, well-being,or physical, mental or emotional healthof the childNo Best Interest Consideration• M.M. v. Dep’t of Children & Fams., 777So. 2d 1209 (Fla.5th DCA 2001)• L.P. v. Dep’t of Children & Fams., 871 So.2d 306 (Fla. 1st DCA 2004)• D.S. v. Dep’t of Children & Fams., 832 So.2d 838 (Fla. 5th DCA 2002)• B.C. v. Dep’t of Children & Fams., 864 So.2d 486 (Fla. 5th DCA 2004)• In re K.H., 8 So. 3d 1287 (Fla. 2d DCA2009)www.GuardianadLitem.org

Harm as the StandardPlacement with Noncustodial Parent who was not cause ofDependency at DispositionHome Study• Requirement of a home study for a nonoffendingparent to take custody is notan unconstitutional imposition• Satisfies the LRM test and is infurtherance of the state’s compellinginterest in the safety of the child• B.C. v. Dep’t of Children & Fams., 864 So.2d 486 (Fla. 5th DCA 2004)No Entitlement to Custody• Non-offending parent is notautomatically entitled to custody• There must be a home study and thecourt must find that the placement willnot endanger the child• P.M. v. Dep’t of Children & Fams., 865So. 2d 8 (Fla. 5th DCA 2003)www.GuardianadLitem.org

Harm as the StandardReunification with Parent § 38.522(2)Substantial Compliance• The court must make a determination asto whether the parent has remedied tocause of the child’s dependency.• If the court finds substantial compliance,reunification must occur unless the courtmakes a finding that reunification willendanger the child.• C.A. v. Dep’t of Children & Fams., 27 So.2d 241 (Fla. 4th DCA 2010).• D.S. V. Dep’t of Children & Fams., 900 So.2d 628 (Fla. 5th DCA 2005).• Technical noncompliance is insufficient.www.GuardianadLitem.org

Best Interest as the StandardChange of Custody to Nonparents § 39.522(1)Standard• In applying BI standard, court mustinclude a consideration of the continuityof the child’s placement in the same outof home residence as a factorRelatives• The court shall consider transferringtemporary legal custody to an adultrelative approved by the court, butneither the department nor the court isobligated to so place the child if it is inthe child’s best interest to remain incurrent placement. §39.521(1)(d)(8)(b)www.GuardianadLitem.org

Best Interest as the StandardChange of Custody to NonparentsBonding & Attachment• Presumptively in the best interests of achild to remain in the home where he orshe has spent the majority of his or herlife. Dep’t of Children & Fam. Servs. v. Inre J.C., 847 So. 2d 487 (Fla. 3d DCA 2002)• Rumph v. V.D. , 667 So. 2d 998 (Fla. 3dDCA 1998)• Trial courts have a duty to makeplacement decisions in the best interestof the child and to recognize theimportance of bonding and attachmentsin early childhood relationshipswww.GuardianadLitem.org

Best Interest as the StandardVisitationShelterPost-Dependency• Parents are entitled to visitation absenta showing by clear and convincingevidence that visitation is not in thechild’s best interest . § 39.402(9), Fla.Stat. (2010).••Error to terminate visitation as asanction against parent. B.M. v. Dep’t ofChildren & Fams., 981 So. 2d 1229 (Fla.4th DCA 2008)After a permanency decision is ordered,• Keeping Children Safe Act• §39.0139, Fla. Stat. (2010)• Specific visitation requirements wherethere are allegations of sexual abuse orrisk of sexual abuse.www.GuardianadLitem.orgsection 39.621(10), states the court shallbase its decision to modify visitation onthe safety, well-being, and physical andemotional health of the child.

Best Interest as the StandardPost Permanency Motion for Reunification § 39.621(10)Hearing• There must be a hearing• Court is prohibited from disturbing thepermanency order unless it can find thatthe circumstances of the permanencyplacement are no longer in the child’sbest interest• L.M. v. Dept. of Children & Fams., 20 So.3d 408 (Fla. 4th DCA 2009)Analysis• Court shall consider the effect of the decision on the safety,well-being, and physical and emotional health of the child• Analysis must include (all 6 factors):• The compliance or noncompliance of the parent withthe case plan• The circumstances which caused the child’sdependency and whether those circumstances havebeen resolved• The stability and longevity of the child’s placement• The preferences of the child, if the child is ofsufficient age and understanding to express apreference• The recommendation of the current custodian• The recommendation of the GALwww.GuardianadLitem.org

Best Interest as the StandardTPR3 Part Test• Remember that there is a 3 prong testfor TPR: 1) ground; 2) MBI; and 3) LRM• Order must have findings for all threeprongs• Yes/No answers are NOT evidence• Standard is clear and convincingevidence§39.810• Elicit testimony from the witnessesregarding each factor.• Each factor must be considered by thecourt; however, not every factor mustweigh in favor of TPR. The judge mustconsider the evidence in light of eachchild and determine if termination ofparental rights is in that child’s manifestbest interests.www.GuardianadLitem.org

Best Interest as the StandardChange of Custody from one Parent to AnotherPost Disposition• Where the court at disposition orderedservices be provided to both parents, thecourt shall determine at every reviewhearing which parent, if either, shall havecustody of the child. §39.521(3)(b),.• Although not well located in Chapter 39,being found under placement with“nonoffending” parents, “The standard forchanging custody of a child from one parentto another or to a relative or another adultapproved by the court shall be the bestinterest of the child.” §39.521(3)(b)2.CP goal’s effect on standard• Where goal is reunification, the standardto be applied is harm (substantialcompliance requires present finding ofendangerment.)• Permissible to place services in a caseplan that address the cause ofdependency for the offending parentwithout the court approving a goal ofreunification with that parent. F.M. v.Dep’t of Children & Fams., 807 So. 2d 200(Fla. 4th DCA 2002)www.GuardianadLitem.org

Best Interest as the StandardICWAFederal Law• Congress enacted ICWA “to protect thebest interests of Indian children andpromote the stability and security ofIndian tribes and families” . 25 U.SC.§1902Transfer of Case• In any dependency or TPR case wherethe child does not live on a reservation, ifeither parent, the Indian custodian orthe tribe petitions to transfer jurisdictionor to tribal court, the state court shalltransfer the case absent good caseshown, unless the other parent objectsor the tribe declines jurisdiction. 25U.S.C. §1911(b)www.GuardianadLitem.org

Best Interest as the StandardICWATPR• For TPR, must demonstrate beyond areasonable doubt that the currentcustody of the child, if continued, wouldbe likely to result in serious emotional orphysical damage to the child. 25 U.S.C§1912(f)Placement• The standard is the prevailing social andcultural standards of the Indiancommunity in which the parent or familyresides, not best interest. 25U.S.C.§1915(d)• The same standard applies to foster careplacements except the burden of proof isclear and convincing evidence. 25 U.S.C.§1912 (e)www.GuardianadLitem.org

Best Interest as the StandardICWAPlacement (continued)• If a decree of adoption is vacated or setaside for not complying with ICWA, thechild shall go back to the parent orformer Indian custodian UNLESS it is notin the child’s best interest. 25 U.S.C.§1916(a)www.GuardianadLitem.org

Best Interest as the StandardICPCArticles• The standard for approval of placementof the child is that the “proposedplacement does not appear to becontrary to the interests of the child”§409.401, Art. 3(d), Fla. Stat. (2010)Regulations• Regulation 1Relocation of the family unit: thereceiving state may decline to provide afavorable determination pursuant toArticle III(d) of ICPC if the administratorfinds the child’s need cannot be metunder the circumstances of the proposedrelocationwww.GuardianadLitem.org

Best Interest as the StandardICPCPermission to Place the Child• Regulation 6Upon reapplication by the sendingagency, the receiving state shalldetermine whether the needs orcondition of the child have changed sinceinitial authorization. The receiving statemy deny placement if contrary to child’sinterestsExceptions• R.F. v. Dep’t of Children & Fams., 50 So.3d 1243 (Fla. 4th DCA 2011); but seeDep’t of Children & Fams. V. Benway.,745 So. 2d 437 (Fla. 5th DCA 1999)www.GuardianadLitem.org

Best Interest as the StandardASFARegulations• Under ASFA, the first order of removalmust include “contrary to the welfare”findings. 45 CFR §1356.21(c); 65 FR4055• This applies to all orders, even iftemporary, and also to constructiveremovals. 45 CFR §1356.21 (k)Regulations (continued)• The order must be detailed and specificto the child, and the language must findthe removal is in the best interest of thechild• Exception: if the court made the contraryto the welfare inquiry and finding at thehearing and it is in the transcript. 45 CFR§1356.21 (d)(1)www.GuardianadLitem.org

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