IN THE INTEREST OF R.W., C.A.W., M.I.W., C.P., M.E.P., AND A.P. MARY POLLOCK N/K/A MARY HAYES, APPELLANT,
v.
DEPARTMENT OF HEALTH & REHABILITATIVE SERVICES, APPELLEE
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The Florida District Court of Appeal reconsidered its original opinion and declared section 39.41(l)(f)(3)(b), Florida Statutes (1983) facially unconstitutional because it permitted termination of parental rights based solely on breach of a performance agreement drafted by a social worker without legislative standards or guidelines. The court held that parental rights may only be severed upon clear and convincing evidence of abuse, neglect, or abandonment, not mere contractual breach.
The statute is facially unconstitutional because it constitutes an unlawful delegation of legislative power by allowing individual social workers unbridled discretion to draft performance agreements with no statutory standards or guidelines, and because parental rights may be severed only upon clear and convincing evidence of abuse, neglect, or abandonment—not based on breach of a contractual performance agreement.
[1] A statute permitting severance of parental rights solely for failure to substantially comply with a performance agreement drafted by a social worker is fundamentally defe…
[2] A statute is unconstitutional as a delegation of legislative power when it provides no standards or guidelines for agreements, leaving their substance to the discretion o…
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Join FLexlaw to unlock all legal intelligence“The statute sets forth no standards or guidelines for performance agreements; it leaves the substance of such agreements entirely to the whims and caprices of the individual social worker who drafts them. This alone renders it a patently unconstitutional delegation of legislative power.”
Establishes the core constitutional defect—unlawful delegation of legislative authority to social workers without standards.
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Join FLexlaw to unlock all legal intelligenceMary Pollock sought rehearing after an original opinion in a dependency case involving six children (R.W., C.A.W., M.I.W., C.P., M.E.P., and A.P.). Th…
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COBB, Chief Judge.
The appellant, Mary Pollack, has moved for rehearing. In our original opinion herein, we found that the issue of the constitutionality of section 39.41(l)(f)(3)(b), Florida Statutes (1983),1 was not raised below; hence, we did not consider it. Upon further reflection and review of the record, we conclude the issue was properly preserved. In any event, the statute is fundamentally defective and unjust insofar as it permits the severance of a parent’s rights solely because of that parent’s failure to substantially comply with a performance agreement drafted by an H.R.S. worker, and could be reviewed on that basis alone. See Hormel v. Helvering, 312 U.S. 552, 61 S.Ct. 719, 85 L.Ed. 1037 (1941). The statute sets forth no standards or guidelines for performance agreements; it leaves the substance of such agreements entirely to the whims and caprices of the individual social worker who drafts them. This alone renders it a patently unconstitutional delegation of legislative power. See Florida Home Builders Assn. v. Division of Labor, Bureau of Apprenticeship, 367 So. 2d 219 (Fla.1979).
It is one thing to base severance on abuse, neglect or abandonment; it is quite another to base it solely on breach of a performance agreement, which is the factual situation in the instant case.2 Only by clear and convincing evidence of neglect, abuse or abandonment by the natural parent can the parental relationship be validly severed by the state. Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982).
We grant rehearing, declare section 39.-41(l)(f)(3)(b) facially unconstitutional, vacate our prior opinion, and reverse the judgment below.
REVERSED.
UPCHURCH, J„ and LEE, R.E., Associate Judge, concur. . Section 39.41(l)(f)(3)(b), Florida Statutes (1983), states:
(1) When any child is adjudicated by a court to be dependent, the court having jurisdiction of the child shall have the power, by order, to: **
(f) 1. Permanently commit the child to the department or a licensed child-placing agency willing to receive the child for subsequent adoption if the Court finds that it is manifestly in the best interests of the child to do so, and:
**
b. If the parent or parents have failed, upon expiration of a performance agreement entered into under s. 409.168, to comply substantially with such agreement. If the court finds that the failure to comply with the performance agreement is the result of conditions beyond the control of the parent or parents, such failure shall not be used as grounds for permanent commitment.
. It is expressly conceded by HRS that severance in this case was based solely on violation of a performance agreement and not on abuse, abandonment or neglect.
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Citator
Cited By (13 total)
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Miami-Dade Cnty. v. Omnipoint Holdings, Inc., 863 So. 2d 195 (Fla. 2003)…” portions of the county code are “fundamentally unfair and unjust” and proceeded to hold them invalid. Omnipoint, 811 So. 2d at 769 n. 6. The district court justified reaching the question of constitutionality solely on the authority of In re R.W., 481 So. 2d 548, 549 (Fla. 5th DCA 1986) (holding patently unconstitutional a termination of parental rights statute that set forth no standards or guidelines for performance agreements, thus leaving “the substance of such agreements entirely to the whims and capri…
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In the Interest of R.W. v. Pollock, 495 So. 2d 133 (Fla. 1986)…OVERTON, Justice. This appeal from In the Interest of R.W., 481 So. 2d 548 (Fla. 5th DCA 1986), concerns the constitutionality of section 39.41(l)(f)l.d, Florida Statutes (1983), which permits the permanent severance of a parent’s rights to his or her children based solely on the parent’s failure to substantially comply wi…
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White v. Dep't of Health & Rehabilitative Servs., 483 So. 2d 861 (Fla. 5th DCA 1986)…es, which authorizes permanent severance of all parental rights for failure to substantially comply with a performance agreement, is unconstitutional as was held in In the Interest of R.W., C.A.W., M.I.W., C.P., M.E.P., and A.P. (Pollock v. H.R.S.), 481 So. 2d 548 (Fla. 5th DCA 1986).…
Previewing 3 of 13 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Hormel v. Helvering, 312 U.S. 552 (U.S. 1941)
- Santosky v. Kramer, 455 U.S. 745 (U.S. 1982)
- Fla. Home Builders Assn. v. Division of Labor, 367 So. 2d 219 (Fla. 1979)