Need advice, encouragement, suggestions, something . . . anything ??. . . .
The new Keeping Children Safe Act is an example of a pendulum gone off its base. The scenario is that it was known that the parent-1 had a "sexual assault" over 27 years ago per the comprehensive behavioral assessment and predisposition study filed in June and July 2007. The dependency was based on the parent-1's incarceration on a drug charge and parent-2's substance abuse - no allegations of sexual abuse or physical abuse. Let me repeat there no allegations of sexual abuse of the subject children throughout the scenario at all. The case plan included parenting, substance abuse, housing, income, visitation. Fast forward to March, 2007, parent-1 has completed all tasks and even took more classes that required. Court finds substantial compliance and anticipates reunification upon positive home study. About the same time, a new baby is born and there is no probable cause as to the parent-1 - anticipate placement upon securing day care and home study. New comprehensive behavioral assessment is filed noting that it was a conviction for sexual battery from over 27 years ago - enter stage left the Guardian Ad Litem Program with a motion to restrict parent-1's contact under Keeping Children Safe Act.
If you have not read the statute, do so. Bizarre as it is, Parent-1 in the scenario is permitted only supervised contact pending an evidentiary hearing where Parent-1 has to rebut the presumption of detriment.
"Wait a minute", you exclaim, "I thought with substantial compliance as to the older kids and non-offending status as to the youngest child, Parent-1 is entitled to custody of the children absent a showing by someone else of detriment - and doesn't that showing have to amount to substantial competent evidence and be related to the children at issue???"
Ha Ha not under Keeping Children Safe Act. How is this constitutional???? In the scenario it was even pointed out to the court that this overreaching knee-jerk reaction to anything with the word sex in it would have the presumption apply even if the court had already reunited the children with Parent-1.
Is there anyone out there who has launched an attack on this statute?? I know there are no rulings yet, but are any pending?? Has anyone successfully defended a parent in rebutting the presumption??
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5 comments:
I have had a similar hearing and rebutted the presumption through testimony of the children at issue. However, in my case the judge was very sympathetic and clearly not a fan of the statute to begin with. I argue the Constitutionality of the statute but she found that the children should be with the father and didn't address that argument. I know a judge on the west coast asked for memorandums and was going to take argument on the Constitutionaliy question but I believe the case was transferred before he had any hearings.
I have done appeals in dependency for a while but I am wondering if even if the court rules that the presumption is rebutted and actually finds the law constitutional if you still have standing to appeal that ruling?? In this scenario there likely will be a motion brought to declare the law unconstitutional.
I have two cases in which it was brought up. Always by the GAL of course. The first the offender was a non offending parent. The child was placed with the parent. There was a hearing and the judge allowed the children to stay with that parent but required a psychosexual evaluation. The parent was more OK with this than I was so it hasnt gone any further. The second case the GAL raised it on an arrest not a conviction. They eventually withdrew that but you can see the way this is going. Another nightmare.
I argued that the Act did not apply to my client, because if it did, my client would be deprived of a substantial right by retroactive application of legislation which contained no statment of intent by the Legislature that the Act should have retroactive application. I cited Smiley v. State, 996 So. 2d 330 (Fla. 2007) which states the rule regarding retroactive application of legislation, which is as follows: In the absence of clear legislative intent to the contrary, a law affecting substantive rights, liabilities and duties is presumed to apply prospectively. Therefore, the Act does not apply to any convictions or acts committed prior to July 1, 2007, the effective date of the Act.
Continuation from Anonymous May 2, 2008 @ 3:56 p.m.-
The substantive right would be the right of a parent to have contact with his or her child and to participate in the raising of his or her child.
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