Children's Rights Litigation

Making a Difference

Expediting Permanent Placement

Florida:  Expediting Safe Return Home

A four-year-old boy was found wandering alone wearing only underwear. Reportedly, the mother was asleep when the child left their home. The mother denied she was asleep, stating she had experienced a seizure. The lawyer for the child procured the release of records from a Chicago hospital which substantiated the mother's medical history. In so doing and encouraging the mother to seek medical treatment, the lawyer for the child assisted the mother in establishing her credibility before the court and facilitating a quick reunification.  Additionally, the lawyer for the child successfully minimized the child's placement to a single foster home by motioning the services for the child and mediating and resolving the problems between the foster family and the mother, thereby avoiding a disruption in placement. The date of shelter to the date of reunification was 5.6 months.

Florida: Expediting Adoption 

A newborn baby boy was born drug-dependent at 24-weeks gestation to parents with a long substance abuse history. The mother had already had parental rights to two older children terminated. The father’s parental rights were previously terminated as to one child.  Because the Department of Children and Families decided against filing an upfront petition, the care manager assigned to the case by the local community base care management agency contracted by the state contacted a lawyer to seek appointment to represent the child and file an upfront petition to terminate parental rights. The lawyer, once appointed to represent the child, filed such an upfront petition, which the court granted. The baby boy was adopted by his foster parents when he was 8.4 months old.

 

Sibling Relationship

Texas: Sibling Relationships and Prevention of Residential Treatment

The attorney represented a grandmother in an effort to protect her three grandchildren and seek their removal from foster care and have them placed with her. Though successful in placing two of the children with the grandmother, a battle ensued for the third child, who was instead placed in a residential setting due to his emotional needs. Although the department was willing to transfer the child to another facility, that facility was located far away from the grandmother and his siblings. The attorney sought consultation from an independent pediatrician who referenced "an extremely high" dose of drugs being administered and did a lot of research on possible options. 

The attorney successfully challenged the treatment plan through negotiations and due to the threat of her willingness to file a motion to halt the child’s transfer. Ultimately, due to the lawyer’s efforts, the child was placed with the grandmother.    In addition, the attorney successfully pursued the department for costs to cover the needed treatment and services provided locally to keep this family together and in their local community. 

Florida: Sibling Relationship and Appropriate Placement

S.M. was sheltered as a small infant. Thereafter, her mother had a friend falsely claim paternity. The lawyer for the child moved for DNA testing, which disproved the false paternity. Later, the mother moved in with a stable boyfriend and they had a child, A.M. After the birth of A.M., S.M. was reunified to her mother. Prior to the court terminating supervision, however, the mother left the father, falsely accused him of abuse, and abandoned the girls, who were removed into state custody. The lawyer for S.M. proved that the false allegations were retaliatory and that the father acted as a loving father to both girls, though one was not biologically his. He was reunified with A.M. and granted permanent guardianship of S.M., whom he calls “[his] baby.”

Texas: Sibling Relationships and Innovative Services

As an attorney-mediator in a case involving three young boys in foster care, the attorney faced a mother unable to provide care for her sons, a father in jail, and a grandmother willing to provide care but who faced several obstacles in her pursuit to care for her grandsons. The grandmother needed immediate, but temporary, assistance with child care until her retirement. She needed a larger apartment to accommodate three children, and she needed an expedited process to prevent her grandsons from being separated and placed in three different foster homes.

The attorney sought help from the Crime Victims Program, which typically helped victims of domestic violence but had not been used for child victims. While "pushing the envelope" to convince the program to support this grandmother and expedite the process on her behalf, they learned that the father of these boys had a criminal record for physically beating one of the children. Because of this, the program accepted the application. The program provided funds for the grandmother so that she could move into a three-bedroom apartment. Within two weeks, the grandmother and boys were settled in their new home.

Florida: Sibling Relationship and Appropriate Placement

Two sisters, ages 19 months and 8 years, were sheltered due to their parents’ substance abuse and placed in two different, inadequate foster homes. The lawyer for the children noted the younger child was severely depressed and would only say her sister’s name. The lawyer first motioned the court for sibling visitation and, secondly, successfully fought for modifications of placement to a non-relative, considered by the children as a grandfather. After the parents successfully completed treatment, the children were reunified within 11.3 months from the date of shelter.

California: Appeal as a Remedy to Maintaining Family Relationships

A child was placed with his grandmother, who was committed to him for the long-run but did not want to adopt. Against the child’s wishes, the agency elected to place the child with an unrelated family for the purposes of an adoption. The child appealed so as to maintain his relationship with his grandmother and his relationship with his siblings. The appeals court reversed the juvenile court and directed that the permanency plan should be guardianship with the grandmother, not adoption by non-relatives. Because of the diligence of the child’s attorney, the child was able to maintain his important family relationships.  (In re Ferdnando M., 41 Cal.Rptr.3d 511 (4th Dist. 2006).)

New Jersey: Appeal as a Remedy to Maintaining Sibling Relationships

The trial court terminated parental rights but denied the children’s request for an order continuing sibling visitation post-adoption. The children’s lawyer appealed this ruling to the intermediate appellate court, and then to the New Jersey Supreme Court, which remanded the case for application of a lower burden of proof—namely that the children needed only establish by a preponderance of the evidence that failure to permit visits would cause them harm. The application of a lower burden of proof made for a greater likelihood of continued sibling contact. (N.J. Div. of Youth and Family Servs. v. N.J. , 990 A.2d 712 (N.J. Super. Ct. App. Div. 2010), rev’d, N.J. Div. of Youth and Family Servs. v. D.R., 6 A.3d 440 (N.J. 2010), on remand N.J. Div. of Youth and Family Servs. v. N.J., No. A-3598-08T4, 2011 N.J. Super. Unpub. LEXIS 309 (N.J. Super.Ct. App. Div. Feb. 10, 2011).)

Georgia:  Maintaining Sibling Placements with Relative

Two children were removed from their birth mother due to her long history of drug addiction. They were placed in the custody of their great grandmother until they turned 18. When the birth mother became pregnant, the child protective agency agreed to voluntarily place the newborn with the great grandmother upon the mother's consent. After the birth of the newborn, the grandmother left the children with a babysitter, but because the babysitter could not stay until the great grandmother returned, the biological mother was alone with the children. When the agency visited the great grandmother's home and found the children with their mother, all the children were removed and placed in foster care.

The attorney for the children argued at the court hearing for the children’s return to their great grandmother, pointing to the previous court order that there were no conditions on the grandmother's ability to leave the children with the mother, nor were the children harmed in the care of their mother, who was not using drugs at the time. The judge immediately returned the two older children and dismissed the case. The agency opposed the newborn's return until a current home evaluation could be completed. The attorney for the children argued that a home evaluation had been completed within the last two years and that there were regular safety checks in the home of the great grandmother during her care of the other two children. Further, the attorney argued that causing the newborn to remain in foster care pending the new home evaluation would only add to the trauma the newborn had already experienced by his removal from his great grandmother, his primary caretaker. The court agreed with the attorney and returned the newborn to the great grandmother under court supervision.

A couple of months later, the newborn was removed again, when the great grandmother left the children for 5 to 10 minutes to go to the mailbox. Though the great grandmother returned while the child-protective services worker was at the door, the newborn was removed again. The attorney for the children argued, and the judge agreed, that this incident did not rise to the statutory level of needed removal.  Three months later, the judge gave the great grandmother guardianship of the newborn until he turns 18 years of age.

 

Accessing Innovative Resources

Texas:

An attorney utilized the Crime Victims Program to assist two different clients. For the first, the attorney secured assistance from the program to get immediate and special sexual abuse counseling for a child, which facilitated his placement with a relative, prevented a referral to juvenile probation and enabled immediate school enrollment. Without this immediate treatment, the child would have been placed in foster care for a minimum of 30 days, until insurance was acquired or mental health appointments were scheduled. For the second, the Crime Victims Program provided assistance to a child who was paralyzed by a shooting in a crack house to get a special wheelchair when Medicaid denied this critical benefit. 

Texas:  Sibling Relationships and Innovative Services

As an attorney-mediator in a case involving three young boys in foster care, the attorney faced a mother unable to provide care for her sons, a father in jail, and a grandmother willing to provide care but who faced several obstacles in her pursuit to care for her grandsons.  The grandmother needed immediate, but temporary, assistance with child care until her retirement.  She needed a larger apartment to accommodate three children and she needed an expedited process in order to prevent her grandsons from being separated and placed in three different foster homes.

The attorney sought help from the Crime Victims Program, which typically helped victims of domestic violence but had not been used for child victims. While "pushing the envelope" to convince the program to support this grandmother and expedite the process on her behalf, they learned that the father of these boys had a criminal record for physically beating one of the children. Because of this, the Program accepted the application. The Program provided funds for the grandmother so that she could move into a 3-bedroom apartment. Within two weeks the grandmother and boys were settled in their new home.

 

Extension of state custody post-18

California: Appeal as a Remedy to Extend State Custody post-18

An 18-year old was attending her last year of high school and had begun a college beauty course, funded by the high school. She wanted to remain in her placement with a relative, finish high school, and develop skills for the future before she emancipated from the system. The Department of Human Services wanted to emanicipate the teen, believing it was "inappropriate" for her to remain in the system if she could not graduate before her 19th birthday, despite statutory authority extending dependency until age 21.

The teen's attorney urged the court to use its authority to maintain the young woman in the system until age 21, to find that it was in her best interest to remain in placement with her relatives, and emphasized that she was engaged in a vocation as well as education.

The court emancipated the young woman and terminated jurisdiction. Her attorney appealed. The appellate court chastised the trial judge's decision and reversed, ordering reinstatement of the dependency. In addition, the county had to provide retroactive foster care funds, which were denied during the pendency of the appeal.

New York: Appeal as a Remedy to Maintain Services Post-18

New York law permits youth who have been adjudicated as abused or neglected and placed in foster care to remain in care past their 18th birthday if they wish and if continued placement is in their best interests. The agency initiated a case involving a 17-year-old, but the matter was not completed before she turned 18. The agency sought to withdraw the case and the trial court permitted it to do so. This made her ineligible for post-18 care and would have forced her to leave the specialized, agency-funded mother-and-child program in which she and her child were doing well and where she wanted to stay. Her attorney first obtained a stay from the appellate court and then prevailed on the underlying appeal, successfully arguing that the trial court had abused its discretion. The young lady was able to stay in the specialized home to receive appropriate support as a young mother. (Matter of Sheena B., 83 A.D.3d  1056 (N.Y. App. Div. 2011).)

Legal Advocacy for Appropriate Education/Treatment

Texas:

A Texas youth was charged with assault for resisting restraint in school. His juvenile defender got an acquittal on the criminal charge, and contacted the disability-rights lawyer to represent him on the school placement issue. After meeting the youth and investigating the case, the lawyer found that the student, who had been diagnosed with ADHD and an anxiety disorder, had been placed in a completely segregated behavioral unit with no access to non-disabled peers. He had been isolated in a padded room, often with the door closed (or locked for up to 7 hours) for over 80 school days. He was physically restrained over 42 times in a seven-month period. The lawyer demanded a hearing before a Texas Education Agency (TEA) hearing officer and got orders requiring the school district to complete a curriculum review and updated assessments, provide counseling services and social skills training, place the child away from the behavioral unit, and file an action plan with the TEA. The youth was able to return to his home campus, where he has been able to adapt with no restraints, no seclusions and no suspensions. 

Georgia: Using Federal Law to Maintain Child in Home School

Upon meeting a new client who had just entered foster care, the lawyer learned that the child was devastated that he was forced to change schools against his will. This client was a fifth-grader who made A's and bonded with his classmates and his teacher. In response the lawyer filed a motion to remain in home school, asking that the court, pursuant to federal law, require the department to transport the child to his original home school, instead of the school zoned for his foster home. The motion was successful and now a DFCS transporter takes the client to his home school daily.

Georgia: Legal Advocacy to Meet Individualized Education Needs of Client

A foster child was having trouble with standard school structures and requested that he be allowed to participate in a GED program. The department refused to pursue the GED programs until the child’s attorney intervened to advocate for his preference and locate an appropriate program. The student proved to be one of the best students in the class and quickly passed some portions of the test.

 

Advocacy for Quality Placements

Florida

The lawyer for two younger siblings of a little boy who was murdered sought to terminate the parental rights of the siblings’ mother and father in the 13th Judicial Circuit in Hillsborough County. Although this case was lost in the lower court, the Second District Court of Appeals reversed the trial court’s decision. Department of Children and Family Services v. S.H. and F.R. (In the Interest of E.R. and A.R., Children) 49 So.3d 846 (Fla. 2d DCA 2010). 

In reversing the lower court, the Second District Court of Appeals clarified the nexus issue deciding that the trial court erred in two significant ways in finding that termination of the father’s parental rights was not the least restrictive means of protecting the surviving children. First, the Second District ruled that a petitioner was not required to prove a nexus between the death of a murdered child and the threat of prospective harm to surviving siblings. 49 So.3d at 7. The court observed that “there is no nexus requirement in the statute,” and “[t]he risk in this kind of case is clear, and any chance of subjecting the living children to circumstances that could result in a similar fate is unacceptable.” 

Secondly with respect to least restrictive means, the appeals court held that the department was not required to prove that services would be futile in regard to the other children, stating that “the futility of offering services to the parent who has already murdered one child is obvious to this court.” 49 So.3d at 9. 

Pursuant to the Second District’s opinion, the trial court subsequently conducted an evidentiary hearing to address whether it was in the children’s manifest best interest to terminate the parents’ rights. The children’s lawyer elicited testimony from the state’s medical examiner that established the narrow timeline of the murder. On January 11, 2011, the trial court entered an order terminating both the mother's and the father's parental rights.

Florida

The Guardian ad Litem Program (GAL), through its lawyer, filed a motion for modification of placement seeking to remove a foster child, approximately 18 months old, from the home of his foster parents, with whom he had lived his entire life, to the home of his maternal grandmother. Both biological parents, through respective counsel, orally joined in the GAL’s motion. The state had first filed a motion for modification of placement but later withdrew its motion. The child, through his attorney, opposed the motion. The court conducted evidentiary hearings over three days, during which testimony was taken and closing arguments heard. 

The child was removed from his parent’s custody by the state the day after his birth and was placed with his foster parents when he was three days old. The foster parents continuously demonstrated their willingness to facilitate visits between the child, his siblings, grandmothers, and extended family, and to the extent permitted by this court, with the parents as well. The child had been in foster care for over a year prior to the maternal grandmother’s stating that she wanted him moved from his foster home and placed in her home. The maternal grandmother did visit the child, on average about one time per month. Further, the maternal grandmother had other very young siblings in her care.

The GAL, along with parents’ respective counsel, argued the child should be placed with biological family and that, in so doing, the child would grow up with his biological family including his siblings. Further, the GAL, joined by parents’ counsel, argued that the child would suffer little or no harm from being removed from his foster home.  

The court denied the GAL’s motion for modification of placement, stating that it was in the child’s best interest to remain in his home with his foster parents because a one-and-a-half-year-old child who has been with one family in one home for his entire life would be harmed by being removed from that home. The court reasoned that even with a gradual transition to the grandmother’s home, the child would suffer harm “in terms of bonding, in terms of attachment, in terms of the ability to form future relationships, in terms of trust….” Further, the court reasoned that the child would suffer grief and would need during the grieving process a tremendous amount of time, effort, and attention, more so than the grandmother with her current responsibilities could provide. Subsequently the decision was appealed by the parents, and the Second District Court per curiam affirmed. Ultimately, the parents’ rights were terminated and the foster parents adopted the child.

This case has had an impact on other Florida children. After this decision and another similar decision won about the same time by a client similarly situated the state has not attempted to remove any more children from a home when the lawyer for the child has objected to such a move based on the child’s strong and long-term attachment and bonding to his or her foster parents. Additionally, the Department of Children and Families’ State Director of the Office of Family Safety issued “Guidelines to Consider in Moving Infants and Young Children.” 

Georgia: Importance of Attorney-Client Relationship/Quality Placements

As a result of a well-established attorney-client relationship, the client reported alarming allegations to her lawyer regarding inappropriate treatment and staff behavior at her congregate care placement facility. The lawyer reported the allegations and aggressively encouraged the completion of a thorough investigation of the treatment center. The result was substantiation of the allegations and removal of all of the agency’s clients located at the facility.

California:

When the state refused to place a child with her aunt and uncle due to the uncle’s 30-year-old conviction for providing beer to his underage brother, the child’s lawyer filed an abuse-of-discretion motion in juvenile court. The court refused to overrule the agency, stating that it had no jurisdiction to do so. The lawyer appealed, and the appeals court held that the juvenile court has authority to review an agency’s refusal to place a child with relatives and the child has standing to appeal such a case because she has a legal interest in such a placement.

Florida: Best Interests and Expedited Permanency Trumps "Technical Compliance" with ICPC

After finding his father dead of suicide, a child spent time in foster care where his grades and mental health deteriorated. He was depressed. At the encouragement of his attorney, the child agreed to visit his uncle in upstate New York. An Agreed Order for travel to New York for two weeks was submitted by the parties to the court. At the conclusion of the two-week visit, the child expressed his desire to remain permanently with his uncle. The child’s disposition had dramatically improved and his commitment to academics was reinvigorated. The Department of Children and Families (DCF) and Guardian ad Litem Program (GALP) took the position that the Interstate Compact on the Placement of Children (ICPC) required the child to return to Florida, pending completion of the ICPC process even if it was in his best interest to remain in New York. The child’s attorney obtained a stay of the trial court’s order of return and appealed. The appellate court held that the child could remain in New York despite the fact that there was “technical non-compliance” with the ICPC process. The opinion of the appellate court cited the child’s attorney’s work in the case, finding that, “[t]he attorney ad litem strenuously argued that the child’s right to expeditious permanency and the best possible placement are paramount to strict compliance with the compact, and the dependency court is required to consider the best interest of the child.” (R.F., a minor child v. Dept. of Child and Fam. And Guard. Ad Litem Program, 50 So.3d 1243 (Fla. 4th DCA 2011)

Advocacy to Resolve Collateral Legal Issues

Georgia: 

After representing teenaged siblings in a case that resulted in placement with an aunt, the attorney continued to work with, advocate for, and advise both the brother and sister. The brother was able to legally establish the identity of his father, get his birth records updated to show his paternity, get a Georgia photo identification card, and enroll in a GED program. For the sister, the lawyer was able to assist her in clarifying the status of a prior criminal case and support her successful completion of an education program after a long history of trouble in school. The lawyer reports, “It was one case where I felt like the children had success against the odds, and that my involvement had a real and tangible effect—also that they (the clients) came away feeling like their needs were met, both their substantive needs and their advocacy needs.”

Prevention of Overly Restrictive Placement

Texas: Sibling Relationships and Prevention of Residential Treatment

The attorney represented a grandmother in an effort to protect her three grandchildren and seek their removal from foster care and have them placed with her. Though successful in placing two of the children with the grandmother, a battle ensued for the third child, who was instead placed in a residential setting due to his emotional needs. The attorney sought consultation from an independent pediatrician who referenced "an extremely high" dose of drugs being administered. Although the department was willing to transfer the child to another facility, that facility was located far away from the grandmother and his siblings.

The attorney successfully fought the transfer, challenged the treatment plan and ultimately gained the release of the third child to the grandmother. In addition, the attorney successfully pursued the department for costs to cover the needed treatment and services provided locally to keep this family together and in their local community. 

Florida: Least Restrictive Placement and Expediting to Permanence

A.G. was born cocaine positive and was placed in foster care at birth. Her biological father passed away from a terminal medical disorder eight months afterward and her biological mother’s rights were terminated due to case plan noncompliance. Due to her severe medical needs (including cerebral palsy, congenital heart disease, cleft palate, webbed fingers, originally diagnosed as asymptomatically HIV positive), A.G. was placed in a nursing home receiving only bare minimum care and not receiving any regular therapies. An attorney was eventually appointed in the case and immediately filed a motion that the nursing home she was placed in be required to transport her to her medical appointments.

While reviewing A.G.’s records, an intern for the child’s lawyer noticed that an out-of-state family had expressed interest in adopting A.G. but the state had not explored the placement. Due to the lawyer’s legal advocacy A.G. was eventually placed with the family and adopted soon afterwards. She is thriving in her new home and has made huge improvements in her motor and communication skills.

 

Appeals

California: Appeal as a Remedy to Maintaining Family Relationships

A child was placed with his grandmother, who was committed to him for the long-run but who did not want to adopt. Against the child’s wishes, the agency elected to place the child with an unrelated family for the purposes of an adoption. The child appealed so as to maintain his relationship with his grandmother and his relationship with his siblings. The appeals court reversed the juvenile court and directed that the permanency plan should be guardianship with the grandmother, not adoption by non-relatives. Because of the diligence of the child’s attorney, the child was able to maintain his important family relationships. (In re Ferdnando M., 41 Cal.Rptr.3d 511 (4th Dist. 2006).)

New Jersey: Appeal as a Remedy to Maintaining Sibling Relationships

The trial court terminated parental rights but denied the children’s request for an order continuing sibling visitation post-adoption. The children’s lawyer appealed this ruling to the intermediate appellate court, and then to the New Jersey Supreme Court which remanded the case for application of a lower burden of proof- namely that the children needed only to establish by a preponderance of the evidence that failure to permit visits would cause them harm. The application of a lower burden of proof made for a greater likelihood of continued sibling contact. (N.J. Div. of Youth and Family Servs. v. N.J. , 990 A.2d 712 (N.J. Super. Ct. App. Div. 2010), rev’d, N.J. Div. of Youth and Family Servs. v. D.R., 6 A.3d 440 (N.J. 2010), on remand N.J. Div. of Youth and Family Servs. v. N.J., No. A-3598-08T4, 2011 N.J. Super. Unpub. LEXIS 309 (N.J. Super.Ct. App. Div. Feb. 10, 2011).)

California: Appeal as a Remedy to Extend State Custody post-18

An 18-year old was attending her last year of high school and had begun a college beauty course, funded by the high school. She wanted to remain in her placement with a relative, finish high school, and develop skills for the future before she emancipated from the system. The Department of Human Services wanted to emanicipate the teen, believing it was "inappropriate" for her to remain in the system if she could not graduate before her 19th birthday, despite statutory authority extending dependency until age 21.

The teen's attorney urged the court to use its authority to maintain the young woman in the system until age 21, to find that it was in her best interests to remain in placement with her relatives, and emphasized that she was engaged in a vocation, as well as education.

The court emancipated the young woman and terminated jurisdiction. Her attorney appealed. The appellate court chastised the trial judge's decision and reversed, ordering reinstatement of the dependency. In addition, the county had to provide retroactive foster care funds which were denied during the pendency of the appeal.

New York: Appeal as a Remedy to Maintain Services post-18

New York law permits youth who have been adjudicated as abused or neglected and placed in foster care to remain in care past their 18th birthday if they wish and if continued placement is in their best interests. The agency initiated a case involving a 17-year-old, but the matter was not completed before she turned 18. The agency sought to withdraw the case and the trial court permitted it to do so. This made her ineligible for post-18 care and would have forced her to leave the specialized, agency-funded mother-and-child program where she and her child were doing well and where she wanted to stay. Her attorney first obtained a stay from the appellate court and then prevailed on the underlying appeal, successfully arguing that the trial court had abused its discretion. The young lady was able to stay in the specialized home to receive appropriate support as a young mother.  (Matter of Sheena B., 83 A.D.3d  1056 (N.Y. App. Div. 2011).)

California: Appeal as Remedy to Secure Family Placement

When the California agency refused to place a child with her aunt and uncle due to the uncle’s 30-year-old conviction for providing beer to his underage brother, the child’s lawyer filed an abuse-of-discretion motion in juvenile court.  The court refused to overrule the agency, stating that it had no jurisdiction to do so.  The lawyer appealed, and the appeals court held that 1) the juvenile court has authority to review an agency’s refusal to place a child with relatives, and 2) the child has standing to appeal such a case because she has a legal interest in such a placement. In re Esperanza C., 81 Cal.Rptr.3d 556 (4th Dist. 2008).

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