Fourth DCA (FL)
H.S. v. Department of Children and Families
4th DCA, 4/3/24
No. 4D2023-1825, 2024 WL 1424065
Judge Artau
Topics: Disqualification/Recusal of Judge; LGBTQ; Writ of Prohibition
Quick Take: The Fourth District Court of Appeal granted a Christian father’s petition for a writ of prohibition and required that a trial judge be disqualified largely because the judge used the transgender child’s preferred pronouns, which the father argued made him feel like he could not receive a fair hearing from the judge. The case was about DCF’s petition to reevaluated the child’s custody status in light of alleged psychological distress the father was causing to his child by refusing to acknowledge the child’s transgenderism.
Full Take: Judge Artau begins his opinion by stating that the “right of parents to direct the upbringing and the moral or religious training of their children is older than our constitutional form of government and deeply rooted in our common law traditions. H.S., the father—who is a Christian minister and youth pastor—lawfully opposes, on moral and religious grounds, gender transition before adulthood for his minor child—who is a biological male.”
In this summary, the child will be referred to by female pronouns. The child came under the Department of Children and Families’ protection when she was removed from the mother’s custody in 2016 because of her substance abuse issues. The child was adjudicated dependent as to the mother. Because the father was not an offending parent, the child was not adjudicated dependent as to the father. While the child and mother were reunified for a time, the mother relapsed into alcohol abuse, and the child ran away and then moved in with her father.
Though the child had been taking sex-reassignment hormones without a prescription, the father refused to seek any sex-reassignment treatment for the child and opposed any form of gender transition before adulthood based on his religious beliefs.
DCF moved for an emergency modification of placement for the child, seeking to remove the child from both the mother and father, alleging that the father was “emotionally abusive” in failing to allow the child to live and dress as a female or pursue gender transition.
Importantly, the child has never been adjudicated dependent as to the father, and there have never been any findings that the father has abused, abandoned, or neglected the child. Despite this, the trial judge granted DCF's motion and removed the child from the custody of both the mother and the father based on the danger stemming from the father’s refusal to accept the child as a female. (NOTE: This actually does seem to be a huge problem. If the father’s actions cause emotional harm, a petition alleging abuse seems to be a necessary step before removing the child from his custody).
The father moved for the child to be returned to his custody because there were no findings of actual or prospective abuse, abandonment, or neglect. The judge interviewed the child the day prior to the hearing, and the judge repeatedly referred to the child by her preferred female name and used the terms “sister” and “young lady” and stated encouraging things like calling her “one smart, strong, together, young lady.” The child complained to the judge about the father’s lack of support in her gender transition, and the judge asked the child if the father had the potential to change his position to one of support, possibly with professional counseling. As a parting remark, the trial judge also told the child: “Chin up, sister.”
The father moved to disqualify the trial judge, and the trial judge promptly entered a written order denying the motion to disqualify as “legally insufficient.” The trial judge then conducted a hearing on the father's motion to return the child to his custody, but reserved ruling on his motion.
Thereafter, the father petitioned here for a writ of prohibition to disqualify the trial judge.
The DCA noted that a party may move to disqualify a trial judge if “the party reasonably fears that he or she will not receive a fair trial or hearing because of specifically described prejudice or bias of the judge.” A party is entitled to the disqualification of the trial judge if the party has “a well-grounded fear that he or she will not receive a fair trial at the hands of the judge.” Whether the party's fear is well-grounded “is a question of what feeling resides in the affiant's mind and the basis for such feeling.” To answer this question, “a determination must be made as to whether the facts alleged would place a reasonably prudent person in fear of not receiving a fair and impartial trial.” “If the attested facts supporting the suggestion are reasonably sufficient to create such a fear, it is not for the trial judge to say that it is not there.”
The DCA held that the father's fear that he cannot receive a fair and impartial hearing before the trial judge is “well-grounded and objectively reasonable.” Judge Artau wrote that children do not belong equally to parents and the state, and the parental relationship is “the most universal in nature,” inclusive of the right of a parent to direct his or her child's upbringing. Parents have a common law and statutory right to direct the upbringing and the moral or religious training of his or her minor child.
Judge Artau observed nothing requires that the father's moral or religious beliefs be aligned with those of the child as a condition of parenthood. He also observed that the father has a statutory right to refuse to allow the child to seek any treatment furthering the child's gender transition before adulthood as part of the “right to make health care decisions for his or her minor child, unless otherwise prohibited by law.” Judge Artau notes that the father's opposition not only to gender transition before adulthood, but also to any form of sex-reassignment treatment, is not prohibited by Florida law. Rather, preventing the child from undergoing any form of sex-reassignment treatment is consistent with a brand new Florida law, which prohibits minors from undergoing such treatment. See § 456.52(1), Fla. Stat. (2023) (“Sex-reassignment prescriptions and procedures are prohibited for patients younger than 18 years of age,” except in limited circumstances.).
Judge Artau observed that to an objectively reasonable person, the trial judge's pre-hearing remarks were “antagonistic to the father and his right to direct the child's upbringing and moral or religious training.” Referring to the child by female pseudonyms and encouraging her with comments like “you are one smart, strong, together, young lady,” and “chin up, sister,” struck Judge Artau as something that “implied a foregone conclusion, before hearing the father's motion, that the trial judge was supportive of the child's gender transition before adulthood and opposed to the father's reliance upon his moral or religious beliefs to otherwise direct the child's upbringing.”
Apparently responding to DCF’s argument that the judge was simply trying to establish a rapport with the child, Judge Artau writs that the judge went beyond mere rapport, as he discussed what would happen if she permanently removed the child from the father's custody contrary to the “placement priority” provided by section 39.4021(2)(a)(1), Florida Statutes (2023), which requires that the trial judge first consider placing the child with the nonoffending parent before considering any other placement. The judge verbally expressed an “inclination” before hearing the father's motion to order the father to submit to “professional help,” “counseling,” or “guidance” from DCF in what Judge Artau sees as “an effort to change his moral or religious beliefs.” To Judge Artau, the statements showed that the judge “had predetermined that the father's moral or religious beliefs needed to be adjusted before he was fit to serve as the child's custodial parent despite” his right to direct his child to submit to his upbringing and moral or religious training. Judge Artau opined that to an objectively reasonable person, it would appear that the trial judge had prejudged the case before hearing the father's motion such that she would not rule in the father's favor, regardless of the legal merits. This constitutes sufficient legal grounds for the trial judge's disqualification. The father's petition for a writ of prohibition was GRANTED and the order denying the motion for disqualification was QUASHED with directions that the trial judge not exercise further jurisdiction over the case and that a different trial judge be appointed.
CHIEF JUDGE KLINGENSMITH CONCURRED, but JUDGE MAY DISSENTED.
Judge May opined that the majority applied the law incorrectly to the facts. Judge May accepted that the trial judge was just trying to put the child at ease by relating to the child “on the child's terms and to explain the legal process and options available.” Judge May opined that, despite the majority's description of what occurred, the trial judge's remarks were neither “antagonistic to the father and his right to direct the child's upbringing and moral or religious training” nor did they express an “inclination to order the father to submit to ‘professional help,’ ‘counseling,’ or ‘guidance’ from DCF in an effort to change his moral or religious beliefs.” Most importantly, Judge May opined that the “trial judge made NO statement indicating how she would rule on the case.” Prior caselaw states that a judge expressing something like “grave concern” over possible visitation cannot serve as a basis for disqualification. A judge may form mental impressions and opinions during the course of presentation of evidence so long as she does not prejudge the case.” There was not a “forgone conclusion” that the trial judge was “supportive of the child's gender transition before adulthood and opposed to the father's reliance upon his moral or religious beliefs to otherwise direct the child's upbringing.” Judge May would have denied the petition.
