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| Free Ashleigh. Child abuse in Fla.The sordid facts from Florida that imprisoned a 3-year-old child for nearly 4 years! |
| 09 May 03 — Following is the latest petition that the Florida Supreme Court has accepted in Ashleigh's case. We pray for the justices to carry out justice. The formatting differs from the original, but the content has not been altered. |
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IN THE
SUPREME COURT OF FLORIDA _______________________ CASE NO. SC03-606 Lower Tribunal Case No. 4D03-542 _______________________ P.S.A., Petitioner vs. FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES, Respondent _______________________ PETITION FOR WRIT OF MANDAMUS (Expedited Consideration Sought) _______________________ Paul Scott Abbott 7130 Granada Blvd. Miramar, FL 33023 (954) 962-2503 Petitioner, Pro Se |
| TABLE OF CONTENTS. TABLE OF AUTHORITIES. ———————————————— iv |
| THE ACTIONS OF THE LOWER COURTS CONSTITUTE VIOLATIONS OF PARENTAL, CIVIL, LEGAL, MORAL, HUMAN AND CONSTITUTIONAL RIGHTS, INCLUDING BUT NOT LIMITED TO IMPOSING DE FACTO TERMINATION OF PARENTAL RIGHTS WITHOUT DUE PROCESS AS SET FORTH IN FLA. STAT. 39.802 AND 39.806 AND THUS SAID DE FACTO TERMINATION OF PARENTAL RIGHTS SHOULD BE STRICKEN AND LOWER COURT(S) BE DIRECTED TO IMPLEMENT DUE PROCESS AND REVIEW INITIATION OF THE PROCESS OF RENEWED FATHER-CHILD CONTACT A. THE COURT SHALL REVIEW THIS MATTER PURSUANT TO FLA.R.APP.P. 9.030(a)(1)(A)(ii) AS THE LOWER COURTS HAVE RULED AGAINST VALIDITY OF STATE STATUTE -i- AND/OR PROVISION OF STATE CONSTITUTION AND EXERCISE DISCRETIONARY MANDAMUS JURISDICTION....................... 13 B. THE DECISIONS OF THE LOWER COURTS ARE CONTRARY TO A PLETHORA OF CONSTITUTIONAL RIGHTS, STATUTES AND CASE LAW THAT WOULD SERVE TO PROTECT THE RIGHT TO BE A PARENT, PASSING UPON A QUESTION OF GREAT PUBLIC IMPORTANCE. .............................................................................. 13 C. THE REMEDY............................................................................... 23 -ii- D. Order Denying Motion for Rehearing (Jan. 8, 2003).App. 23-24 TABLE OF AUTHORITIES -iv- K.R.V. v. Department of Children and Families, Case No. 4D00-2740 (Fla 4th DCA 2001)........................................................................................................... 11 -v- R.U. v. Department of Children & Families, Case No. 4D00-1586 (Fla. 4th DCA, Feb. 14, 2001)................................................................................................................. 10 U.S. Const. 14th Amend. ..................... 11, 14, 15, 16, 17, 18, 19, 20, 21, 22
CERTIFICATE OF FONT SIZE AND STYLE -viii- JURISDICTION Specifically, this Court has original jurisdiction to issue writs of mandamus directed to state officers and/or state agencies, pursuant to aforementioned Florida Pursuant to the Fourth District Court of Appeal Revised Notice to Attorneys and Parties (Rev. 8/30/02), this case shall be expedited as it involves adoption, termination of parental rights and/or other significant issues related to substantial interests of a Child. Additionally, pursuant to prior Order Declaring Father Partially Indigent (appended hereto), appeal costs for the Father/Petitioner shall be waived. The Court of Appeal latest rulings as cited above upheld a de facto Termination of Parental Rights without due process and without evidentiary hearing, as specifically outlined in detail in Fla. Stat. 39.802 and Fla. Stat. 39.806, with said procedures and grounds entirely denied and neglected in this case at hand. The Court of Appeal acceptance of Appellee's arguments in its motion filed Feb. 20, 2003 (appended hereto), denied the Father/Appellant/Petitioner the ability to appeal the Jan. 8., 2003, Order, and forced the continued permanent separation of Father and Minor Child that has been permitted to be in place completely for more than two years without application of due process and safeguard of rights. In reality, the very nature of termination of protective supervision in itself The termination of protective supervision, attested to in the Appellee motion, therefore in itself proves the Circuit Court's intent to de facto terminate parental rights of the Father. Furthermore, it is not possible for the Father to seek consent of the Minor Child's therapist when he has been denied information even as to said therapist's identity. It is equally not possible for the Father to seek consent of the Minor Child, who turned 8 last month, when he has been denied information even as to his Minor Child's specific whereabouts. In addition, it would not be possible for the Father/Appellant/Petitioner to file his appellate brief in this matter without transcript of the hearing of Sept. 20, 2002, which, although requested by Designation to Court Reporter, as of the below date is not completed and available, and which was deemed moot by Order of the Court of Appeal, thus placing him under further undue prejudice. In reviewing the facts in this matter and the applicable law, it is clear that This matter has been extensively litigated over the period, during which the Minor Child has been greatly aggrieved, since the seizure of the Minor Child in April 1998, on an allegation that she was at imminent risk of neglect by her Father because he allegedly failed to protect her because she returned home from a family-court-ordered afternoon supervised visit with her mentally ill child-abuser Mother with a fat lip, said injury promptly reported to authorities by the Father; with the State's most recent in its apparent attempts at justification of the Minor Child's seizure and secrecy from her Father and contentions for the Minor Child's being denied contact with her Father being related to unsubstantiated allegations of alleged molestation of the Minor Child on the part of the Father that were made as media began reporting sexual molestation of the Minor Child having been suffered at a group emergency shelter to which she had been indefinitely banished by a judge who'd soon be appointed by Gov. Bush to (and later forced to resign from, under pressure instigated by the Father/Petitioner among others) the position of Secretary of the Florida Department of Children and Families. Furthermore, although the Circuit Court has noted the importance it places upon the desires of the Minor Child in such circumstances, and it is apparent that this Minor Child's thoughts have been substantially manipulated by the Mother and/or agent or agents of the State, this matter has never been subject to a Frye/Daubert taint/reliability/admissibility hearing. At a judicial review hearing on the late afternoon of Friday, Sept. 20, 2002, the Circuit Court stated that it was terminating State supervision in this case and further that it would not permit even strictly supervised visitation between the Minor Child and the Father who had admirably raised her singlehandedly from her infancy until her seizure in April 1998. Although representations by the Mother's counsel and others were that the termination of State supervision was noticed for this judicial review hearing, the fact remains, as pointed out by the Father at said hearing, that the termination of State supervision was not noticed for this hearing and that, in fact, the Judicial The Father questioned the reliability and admissibility of alleged statements of his Child regarding seeing her Father, which were represented by the Attorney ad Litem to being noncommittal, e.g., shoulder shrugging, although represented by the Guardian ad Litem Program attorney as to being no interest whatsoever, and the Father cited, based upon previous information, including that of professional reports citing the Minor Child's increased understanding and acceptance of damage inflicted upon her by her Father (damage never proven and, in fact, now apparently disproven by internationally recognized expertise), that any statements or reactions of the Minor Child relative to her Father should thus be considered as tainted. Concerns related thereto parallel those addressed in State of Florida v. As stated by the Attorney ad Litem, protective supervision would have to remain in place with the initiation of supervised visitation between Father and Minor Child. Statements of the Circuit Court even prior to hearing any testimony, evidence or argument in this hearing are highly indicative of a predispository nature, which in itself cries for rehearing and/or other appropriate relief. The Circuit Court was presented with the Father's Motion to Commence Reunification Process and for Injunctive Relief in Best Interest of Minor Child, which cited, in part, that the Father, even while various matters have been on appeal, including with issues related to his out-of-state expert psychosexual and polygraph evaluations before the Supreme Court of Florida (Case No. SC02-1710), had, at substantial personal expense, inconvenience, duress and mental anguish, including having to go out of state multiple times for examinations that included wiring of his genitalia while he was forced to view pornographic video among other horrendous procedures, nonetheless proceeded with said evaluative processes and that said evaluative processes successfully completed all facets of the Case Plan of the Father completable at that time. In fact, Circuit Court Judge Beach stated explicitly at a hearing earlier the same year (page 102 of transcript of hearing of Jan. 29, 2002, in the above-captioned matter, emphasis added): I will add to the comment -- that comment the fact that if this father after submitting to and receiving a psychosexual either is deemed -- What is the best word to use? Not clean, but is cleared of the allegations, does not face additional requirements as ordered by the examining professional, and/or if he is required to do certain tasks before that professional can agree that he should be reunified with his child. In either case, everyone should expect that that will occur. Which will actually take us back in time a number of years. Will it not? A number of years that in the life of this child have been spent out of a home environment with either parent. And on page 103 of the same transcript, to the Father: You'll be able to enjoy -- If in fact things go well, you'll be able to enjoy a relationship with this child. Evaluative reports, from internationally recognized experts in respective fields, do not indicate that there is any evidence that the Father ever molested his Child and further recommend commencement of the reunification process, per The Circuit Court nonetheless, and even notwithstanding the fact that the Fourth District Court of Appeal to which that very Circuit answers has ruled that even in cases in which a Father would refuse to cooperate with such evaluations that such actions would be as consistent with innocence as guilt (see R.U. v. Department of Children & Families, Case No. 4D00-1586, (Fla. 4th DCA, Feb. 14, 2001)), stated that it was concluding that the Father was to be construed as not in substantial compliance with his Case Plan, a plan that had remained in the appellate process until approximately 90 days prior to that day's hearing and that had been completed as much as possible by the Father, the only remaining being parenting action that would require Father-Child face-to-face contact that has been denied due to the de facto Termination of Parental Rights without due process. The decision of the Circuit Court is contrary to the law and evidence The Circuit Court indicated that its determination of lack of compliance was based largely upon delays in Case Plan completion that it attributed to the Father, whereas evidence shows that the matter remained on appeal, that numerous providers declined to participate in the process (for reasons not related to any refusal on the Father's part, ranging from risk management concerns related to the Father's exertion of rights to the State's continuing lack of specific allegations against the Father) and that the various authorities who have conspired with the Mother against the Father were as much or more responsible than any other party or parties. Finding of blame against the Father in this regard would fail to pass the "competent substantial evidence" test set forth through G.C. and D.C. v. Petitioner seeks a Writ of Mandamus directed at the Fourth District Court of ARGUMENT A. THE COURT SHALL REVIEW THIS MATTER PURSUANT TO FLA.R.APP.P. 9.030(a)(1)(A)(ii) AS THE LOWER COURTS HAVE RULED AGAINST VALIDITY OF STATE STATUTE AND/OR PROVISION OF STATE CONSTITUTION AND EXERCISE DISCRETIONARY MANDAMUS JURISDICTION As described above in the section entitled "JURISDICTION," this Supreme Court is in the unique position of being able to ensure proper application of state statutes and/or to remedy those matters in which said proper application has failed to occur due to the action or action of a state official or officials and/or state agency or agencies. Herein, this petition, for means of economy, reiterates the above facts and the matters addressed in the "JURISDICTION" section, as well as preiterates the arguments detailed in section "B," infra. It is clear that pursuant to the stated applications of Fla.R.App.P. 9.030(a)(1)(A)(ii), 9.030(a)(2)(A)(v) and 9.030(a)(3), respectively, that exercise of mandamus jurisdiction is appropriate due to the lower courts invalidation of state stature, issues of such great public importance as sanctity of the family and due process and this Court's ability to issue all necessary writs to the complete exercise of its jurisdiction, in an expedited manner in matters involving children. This is particularly vital in light of the legal issues addressed in the following section. B. THE DECISIONS OF THE LOWER COURTS ARE CONTRARY TO A PLETHORA OF CONSTITUTIONAL RIGHTS, STATUTES AND CASE LAW THAT WOULD SERVE TO PROTECT THE RIGHT TO BE A PARENT, PASSING UPON A QUESTION OF GREAT PUBLIC IMPORTANCE To fully understand the gravity of the matter at hand, it is vital to view it within the context of the fact that the lower court actions are contrary to a plethora of Constitutional rights, statutes and case law federally and of the several states that would serve to protect the right to be a parent, including but not limited to: 1) The rights of parents to the care, custody and nurture of their children is of such character that it cannot be denied without violating those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions, and such right is a fundamental right protected by Amendments 1, 5, 9 and 14. See Doe v. Irwin, 441 F Supp 1247; U.S.D.C. of Michigan (1985). 2) The several states has not greater power to restrain individual freedoms protected by the First Amendment than it does the Congress of the United States. See Wallace v. Jaffree, 105 S Ct 2479; 472 US 38 (1985). 3) Loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury. Though First Amendment rights are not absolute, they may be curtailed only by interests of vital importance, the burden of proving which rests on their government. See Elrod v. Burns, 96 S Ct 2673; 427-14-US 347 (1976). 4) Law and court procedures that are "fair on their faces" but administered "with an evil eye or a heavy hand" are deemed as being discriminatory and violate the equal protection clause of the Fourteenth Amendment. See Yick Wo v. Hopkins, 118 US 356 (1886). 5) Even when blood relationships are strained, parents retain vital interest in preventing irretrievable destruction of their family life; if anything, persons faced with forced dissolution of their parental rights have more critical need for procedural protections than do those resisting state intervention into ongoing family affairs. Moreover, there must be conclusive evidence beyond a reasonable doubt, not merely a preponderance of evidence, to terminate a parent's right of access to his or her child. See Santosky v. Kramer, 102 S Ct 1388; 455 US 745 (1982). 6) Among Florida cases upholding this right of a natural parent to fundamental liberty interest in care, custody and management of their child or children is S.D. v. Department of Children and Families, Case No. 3D00-3086 (Fla 3d DCA 2001). 7) In addition, right to freedom from government intrusion is guaranteed under Art. 1, Sec. 23 of the Florida Constitution. . 10) Parent's right to custody of child is a right encompassed within protection of the 5th and 14th Amendments which may not be interfered with under guise of protecting public interest by legislative action which is arbitrary or without reasonable relation to some purpose within competency of state to effect. See Reynold v. Baby Fold Inc., 369 NE 2d 858; 68 Ill 2d 419, appeal dismissed 98 S Ct 1598, 435 US 963, IL (1977). 11) Parent's interest in custody of children is a liberty interest which has received considerable constitutional protection; a parent which is deprived of custody of his or her child, even though temporarily, suffers thereby grievous loss and such loss deserves extensive due process protection. See In the Interest of Cooper, 621 P 2d 437; 5 Kansas App Div 2d 584 (1980). 12) The Due Process Clause of the Fourteenth Amendment requires that 14) The United States Supreme Court has noted that a parent's right to "the companionship, care, custody and management of his or her children" is an interest "far more precious" than any property right. See May v. Anderson, 345 US 528, 533; 73 S Ct 840, 843 (1952). 15) That parent's right to care and companionship of his or her children are so fundamental, as to be guaranteed protection under the First, Ninth and Fourteenth Amendments of the United States Constitution are assured as well per In re: J.S. and C., 324 A 2d 90; supra 129 NJ Super, at 489. 16) The U.S. Supreme Court stressed, "the parent-child relationship 17) Parent's rights have been recognized as being "essential to the orderly pursuit of happiness by free man." Meyer v. Nebraska, 262, 426 US 390; 43 S Ct 625 (1923). 18) The U.S. Supreme Court implied that "a (once) married father who is separated or divorced from a mother and is no longer living with his child" could not constitutionally be treated differently from a currently married father living with his child. Quilloin v. Walcott, 98 S Ct 549; 434 US 246, 255-56 (1978). 19) The U.S. Court of Appeals for the 9th Circuit (California) held that the parent-child relationship is a constitutionally protected liberty interest, referencing Declaration of Independence re life, liberty and the pursuit of happiness and the 14th Amendment of the United States Constitution re no state can deprive any person of life, liberty or property without due process of law nor deny any person equal protection of the laws. See Kelson v. Springfield, 767 F 2d 651; US Ct App 9th Cir (1985). 20) Echoing the thought behind the words of Marcus Tullius Cicero, that "Of all nature's gifts to the human race, what is sweeter to a man than his children?," no bond is more precious and none should be more zealously protected by the law as the bond between parent and child. See Carson v. Elrod, 411 F Supp 645, 649; DC E.D. VA (1976). 21) A parent's right to the preservation of his relationship with his child derives from the fact that the parent's achievement of a rich and rewarding life is likely to depend significantly on his ability to participate in the rearing of his children. A child's corresponding right to protection from interference in the relationship derives from the psychic importance to him of being raised by a loving, responsible, reliable adult. See Franz v. U.S., 707 F 2d 582, 595-599; US Ct App (1983). 22) That a parent's right to the custody of his or her children is an element of "liberty" guaranteed by the 5th Amendment and the 14th Amendment of the United States Constitution has also been cited in Matter of Gentry, 369 NW 2d 889, MI app Div (1983). 23) Reality of private biases and possible injury they might inflict were 25) The United States Supreme Court held that the "old notion" that "generally it is the man's primary responsibility to provide a home and its essentials" can no longer justify discrimination on the basis of gender. See Stanton v. Stanton, 421 US 7, 10; 95 S Ct 1373, 1376 (1975). 26) Judges must maintain a high standard of judicial performance with particular emphasis upon conducting litigation with scrupulous fairness and impartiality. See Pfizer v. Lord, 456 F 2d 532; cert denied 92 S Ct 2411; US Ct App MN (1972). 27) State Judges, as well as federal, have the responsibility to respect and protect persons from violations of federal constitutional rights. See Gross v. State 28) The Constitution protects and Federal and State Courts must protect, under the "life, liberty and pursuit of happiness" phrase of the Declaration of Independence, the right of a man to enjoy the mutual care, company, love and affection of his children, and this cannot be taken away from him without due process of law. See Griswold v. Connecticut, 381 US 479 (1965). 29) The right of a parent not to be deprived of neglect is so fundamental and basic as to rank among the rights contained in this Amendment (Ninth) and Utah's Constitution, Article 1, Sec. 1. See In re U.P., 648 P 2d 1364; Utah (1982). 30) The rights of parents to parent-child relationship are recognized and upheld additionally by Fantony v. Fantony, 122 A 2d 593 (1956); and Brennan v. Brennan, 454 A 2d 901 (1982). 31) State's power to legislate, adjudicate and administer all aspects of family law, including determinations of custodial and visitation rights, is subject to scrutiny by federal judiciary within reach of due process and/or equal protection clauses of the 14th Amendment, applied to states through specific rights contained in the first eight amendments of the Constitution which declares fundamental personal rights, and the 14th Amendment which encompasses and applies to statesthose preexisting fundamental rights recognized by the Ninth Amendment. The 32) Finally, and compellingly, due to its recency before the 4th District Court of Appeal from which the present matter comes, it should be noted that improper C. THE REMEDY Remedy shall be obtained by issuance of a Writ of Mandamus directed at the Fourth District Court of Appeal and/or 17th Judicial Circuit for review of this matter and/or striking of the de facto Termination of Parental Rights. 2. Institution of Due Process Wherefore, for the foregoing reasons, the Court shall proceed with issuance of Writ of Mandamus as outlined in "C. THE REMEDY" and elsewhere above, as such is the only currently available procedure at law for assurance of the best interest of the health, welfare and safety of the Minor Child and assurance of mandated rights and responsibilities of the Father/Petitioner, and as failure to do shall set a chilling precedent for all children and families in this State and beyond. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the above, including |