Pubdate: Thu, 25 Dec 2003
Source: Orlando Sentinel (FL)
Copyright: 2003 Orlando Sentinel
Contact:  http://www.orlandosentinel.com/
Details: http://www.mapinc.org/media/325
Author: Maya Bell, Sentinel Staff Writer

SMUGGLER MON CAN KEEP KIDS, COURT SAYS

MIAMI -- The mother of four was a "mule" -- a smuggler who swallowed 
capsules of cocaine to bring the lucrative powder into the United States. 
She admitted as much when she pleaded guilty to conspiracy to import 
cocaine into Miami International Airport.

But a Florida appeals court ruled Wednesday that the mother's arrest, even 
with her 2-year-old daughter in tow, and her subsequent conviction and 
imprisonment, were not good enough reasons for the woman to lose custody of 
her children.

"We do not condone such behavior and strongly emphasize that exposing a 
child to criminal activity is clearly not appropriate," the Third District 
Court of Appeal said in its five-page opinion. "However, the fact that the 
mother was arrested, in of itself, is not sufficient to justify an 
expedited termination of parental rights."

"Wow! That's awesome," said Miami lawyer Ilene Herscher, who represented 
the mother, identified as P.S. in court records. "Last I heard from her, 
she sent a Christmas card for her children and was looking forward to 
seeing them again."

A spokesman with the state Department of Children & Families, which asked a 
Miami-Dade County juvenile judge to quickly sever P.S.' relationship with 
her children, could not say Wednesday whether the department would appeal.

"We are aware of the ruling. We are reviewing it, and we will determine 
what if any action will be taken," DCF spokesman Bill Spann said.

Child advocates said, however, that the case has little precedent- setting 
value. That's because case law already makes it clear that a parent's 
arrest is not sufficient grounds for the parent to lose custody -- unless 
the state can prove the arrest was connected to specific harm to or abuse 
or neglect of the child in question.

Gerard Glynn, executive director of the Orlando-based Florida's Children 
First!, a legal advocacy group, said state law carves out several 
exceptions. Incarcerated parents can lose custody of their children if they 
will be imprisoned for a "substantial portion" of their children's lives, 
if they are considered violent or career criminals or if continuing their 
relationship with their children would harm them, he said.

The department did not, however, ask Circuit Judge Scott M. Bernstein to 
terminate P.S.' parental rights on any of those grounds.

Instead, DCF relied on another provision of the law that allows termination 
for "egregious conduct." DCF officials said P.S.' arrest for attempting to 
smuggle 500 grams of cocaine into the United States amounted to egregious 
conduct.

The appellate court disagreed.

"Without connecting the arrest to any abuse, neglect or specific harm to 
the child that was present at the arrest or to her other children, this 
conduct alone cannot be the basis for a termination of parental rights," 
the appellate court wrote.

Herscher said she's looking forward to sharing the ruling with her client, 
who will be released from her 30-month sentence soon.

"I'm sure this will be very good news for her. Hopefully, she'll learn from 
her mistakes," she said.
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