In death, Broward father may become dad again??
 

http://www.miamiherald.com/news/5min/story/1160243.html

In death, Broward father may become dad again

A Broward father lost all rights to his daughter after being declared an
unfit dad. Now he is dead, and a court is reconsidering whether to restore
his parental rights.

BY CAROL MARBIN MILLER

In life, he was a lousy father.

His love for the crack pipe was mightier than the love for his children, a
Broward judge decided, and ended his parental rights to his pre-teen
daughter.

But before his appeal of the judge's order was final, the father known in
court records as C.A. died after being struck by a car.

And now, an appeals court is wondering: Perhaps the little girl should keep
her father, after all.

In a case believed to be a first in Florida, the Fourth District Court of
Appeal in West Palm Beach has ordered Broward Circuit Judge John Frusciante
to reconsider his order ending C.A.'s rights as a father. Perhaps, the court
says, it is in the girl's ``best interests'' to retain a relationship with
C.A. now that he is dead.

At stake: perhaps a large sum of money. If the girl -- who is not named in
the appeals court decision -- has no legal ties to her father, she would
have no right to claim any proceeds from a wrongful-death lawsuit that may
be filed by her father's estate, the opinion says.

In a nod to state child welfare administrators who asked the appeals court
to reconsider the case in light of C.A.'s death, the three-judge appeals
panel wrote that ``even if the final judgment [severing C.A.'s rights was]
soundly based and affirmed, it may not now be in the best interests of the
child to do so.''

Child welfare legal experts, including Frusciante, say the ruling appears to
be the first time a Florida judge has been asked to restore a parent's
rights after death.

``Obviously, this case presents challenges that we haven't dealt with yet,''
Frusciante said.

Said Paolo Annino, director of the Public Interest Law Center at Florida
State University: ``I have never seen either the Department of Health &
Rehabilitative Services, or its successor, the Department of Children &
Families, terminate parental rights and then reverse themselves.''

Certainly not after a parent has died, Annino added.

``We want to do what is in the best interests of children,'' said Mary
Cagle, DCF's top child welfare attorney. ``When the father died, we stepped
back to see what was in the best interests of these children.''

Attorneys for C.A. at the Regional Counsel office in West Palm Beach did not
reply to several calls for comment.

C.A. and his wife had two children, a now-13-year-old girl and her
16-year-old brother, sources with knowledge of the case told The Miami
Herald. The two children had remained in state care for a long time as child
welfare administrators tried to help their parents beat their cocaine
addictions -- a quest that ultimately proved futile.

One of the children had even tested positive for cocaine, a source said.

After a hearing, C.A.'s wife lost custody of the daughter forever, a
decision that was affirmed on appeal. C.A. appealed separately, and his case
was still pending when he was hit by a car when walking near a highway in
Broward.

A source familiar with the case said Frusciante severed C.A.'s ties to the
girl because, at the time, she was living with foster parents who wished to
eventually adopt her. But the court did not terminate the dad's rights over
the older brother, who was living in a group home with little hope he would
be adopted.

That meant the brother would be entitled to inherit any proceeds from a
wrongful-death suit, but his sister would not. The opinion -- written by
Judge Gary M. Farmer and signed by judges Fred A. Hazouri and Cory J.
Ciklin -- provides no names or other information regarding the children and
their birth mother.

It was the Department of Children & Families that first suggested C.A.'s
daughter might be better off retaining a legal tie to her father, said
Cagle, and, given the circumstances of C.A.'s death, had suggested the man's
estate hire a lawyer to pursue a wrongful death claim.

``When the father died, people said, `Wow, this kid could be disenfranchised
from any money that might result.' How can we get before the Court of
Appeals and find a way to not make that happen?''

The appeals court's July 22 opinion suggested state law and legal precedent
had little to offer to decide such a question.

To settle the issue, the appeals court panel sought advice from ``other
legal contexts,'' such as divorce cases and criminal law.

They concluded: ``Neitherthe criminal nor [divorce] rule is an exact fit for
this . . .case.''

``We must not forget that the overriding concern in [cases involving the
termination of a parent's rights] is for the best interests of the child,
not the parents,'' the opinion states. ``The state initiates [termination]
proceedings, not to punish parents who fail to met their obligations to the
child, but to protect the child and her interests.''

``The state's interest in vindicating judgments presumed correct must give
way to that paramount concern, the best interests of the child.''