Jay & Campbell represents a lot of caregivers who want to adopt the foster children that they’ve parented for years. Sometimes these are simple uncontested adoptions. But contested adoptions have been increasing.
Up until now, our clients have had two options to challenge DCF’s unreasonable decisions. First, they could use the Florida Administrative Procedures Act to challenge whether DCF’s decision complies with the law. Second, they could file an adoption petition and be fully and fairly heard in court.
Not anymore. Now, after getting denied by the secretive DCF administrative tribunal, “AARC”, our clients can file a review motion in dependency court, where the government agencies (DCF and the Statewide GAL Office) argue that our clients have no right to procedural due process. The courts often buy this argument and deny our clients the right to any information to prepare for the hearing, known as “discovery.” Our clients have no idea what the government agencies might argue or what their witnesses might say.
One aspect of “separation of powers” is that the legislature makes the law, the executive branch enforces it, and judges say what the law is. But the new law forces the judge to DEFER to whatever DCF says its regulations require. But what happens when DCF makes regulations that violate the law? Or applies the regulations in a way that violates the law? According to this law, the judge doesn’t get to look at that. Which makes DCF the judge.
Recently it go even worse when a Florida appellate court ruled, in DCF v J.H., that even though the law says our clients get an evidentiary hearing, the trial judge has to apply an appellate standard of review to what DCF says the “facts” are in its denial letter. This interpretation of the new law either does away with the evidentiary hearing entirely, or renders it completely pointless.
This judicial deference is blatantly unconstitutional and our firm has done a lot of work developing this argument in our cases. Think of it like this: we walk into court with our clients, who have parented the foster child for two years. But the government chose a different adoptive applicant and when the government lawyer walks in, he says to the judge, “Oh hey there, Lady Justice. I see you’ve got your blindfold on. Let me take that off for you so you can see who you’re supposed to favor here. And I’m gonna just put some weights for my side on your scales of justice. There. Now you’re ready to hear the case.”
Another problem is that DCF’s grounds for denial are usually unclear. Our clients have a “denial letter” from the AARC tribunal, but that tribunal was conducted in secret, with no due process. Our clients are allowed to speak directly to AARC, but they don’t know who the other witnesses are (case management, GAL, the other applicant), what is said about them, nor can they rebut it. No one but the AARC members know what happened at the AARC meeting. There is no transcript. The most critical decision for the child’s future is made at an unreviewable secret meeting of bureaucrats who have no legal training.
Challenging the validity of a law is complicated and requires attorneys who are experienced in appeals, administrative law, and constitutional law, like Jay & Campbell.
