Florida child welfare agency wins custody battle with its ex-watchdog ... for now

A former state children’s advocate who angered her bosses with her forceful style on behalf of abused children and foster parents is facing the loss of custody of her own adopted son after a Tallahassee judge said her refusal to allow him back into her home without adequate support amounted to abandonment.

At the conclusion of an hours-long hearing over several days, Leon Circuit Judge Anthony Miller ruled that Department of Children and Families’ administrators were right to take legal custody of Heather and Evan Rosenberg’s 12-year-old adoptive son, who has spent the last 18 months in a psychiatric treatment center in Brevard County.

But the judge also gave the Rosenbergs what amounted to a reprieve — time to drive south, pick up the boy and bring him back home.

For eight years, Heather Rosenberg was DCF’s Children’s Ombudsman, and records show the agency chafed against her sometimes aggressive fight to improve the lives of children in state care – as her own three children had been before they were adopted. All three youngsters have significant special needs – two of them, who are siblings, as the result of their natural mother’s heavy alcohol use during pregnancy.

The Rosenbergs claimed they could not safely return the 12-year-old to their home, though his doctors insisted he was ready to be discharged, without intensive behavioral intervention. Testimony at the hearing showed the boy, who is not being named to protect his privacy, could be explosive, and has frequently required physical restraints to protect him and others.

But DCF administrators testified that leaders at the Devereux Advanced Behavioral Health center concluded the parents could handle him safely with the help of behavioral aides available over the phone or with a computer. By refusing to accept the boy back in their home, DCF said, the Rosenbergs left the state no choice but to seek custody.

A challenging case

When the hearing ended after 8 p.m. Wednesday, Miller said the dispute over the boy was among “the most challenging cases” he’s heard while presiding over child welfare claims. “It is with a heavy heart that I make this decision,” the judge said, calling the Rosenbergs “conscientious and loving” toward their son.

“This is not your typical case of a child being abandoned or left on the side of the road,” Miller said into his computer, as the hearing had been conducted via Zoom. “These are hard cases,” he added. Ultimately, the Rosenbergs’ unwillingness to accept the boy back into their home left Miller no choice but to grant DCF’s request for custody, he said.

Still, the Rosenbergs are seeking – and are likely to get – a reprieve from the sting of being formally declared unfit. Such a ruling could have serious consequences for the couple: Evan Rosenberg’s work as an emergency management consultant requires a clean record, as does Heather Rosenberg’s volunteer work with the Boy Scouts of America.

As the hearing was ending, the couple’s attorney, Alan Mishael of Miami, announced they were willing to drive to Brevard County immediately to retrieve the boy. He asked whether Miller would be willing to delay signing an order granting custody to the state if the dispute could be resolved quickly. The judge agreed.

Over a decade as foster parents, Heather and Evan Rosenberg helped raise 17 children who had been taken into state care. They adopted three of them, including the 12-year-old at the center of the custody dispute, and his birth sister. Her efforts on behalf of foster children and parents caught the eye of DCF administrators, who appointed her the state’s first Children’s Ombudsman, a position she left last year.

The middle child’s developmental and behavioral challenges – the result of his mother’s substance use before birth – proved particularly daunting. The owner of a therapy group in Tallahassee testified the child had been kicked out of school, removed from a summer camp, required frequent restraints and was sometimes inappropriate around girls.

When psychiatric hospitalizations and other interventions failed, the Rosenbergs turned to Devereux, with the help of state funding. The boy remained there until administrators declared him ready for discharge in July, though his release was delayed several times while the couple sought in-home behavioral assistance – a request DCF was unable to grant.

Applied behavior analysis, a form of therapeutic behavioral psychology that is often effective with children who have autism or other behavioral disorders, can be extremely difficult to access due to poor funding and long wait lists, was nowhere to be found in Tallahassee, Heather Rosenberg testified. Without it, she said, neither the boy nor his siblings would be safe.

In-home help a key issue

The Rosenbergs’ oldest child, who is about six-foot-one and stocky, also has an explosive temper, she said, and was a threat to the 12-year-old if provoked.

Eventually, the conflict between Rosenberg and her former bosses came down to whether behavioral supports available through telehealth were sufficient to keep the family safe. Devereux clinicians, and DCF, said it was. The Rosenbergs said advice on the telephone wouldn’t help much if their son was hurting a sibling or them.

In recent days, DCF identified a behavior analysis provider able to work with the family in their home. But a few logistical hurdles remained before a behavior aide could begin work in the house, and the Rosenbergs were asking for just enough time to get the help in place.

“He needs a place to live,” DCF’s attorney, Nick Dolce, said of the boy in closing remarks at the hearing. “That should be with his parents.”

The Rosenbergs have a “right” to insist the boy be given adequate services, Dolce added, “but ultimately [the boy] has to have a house to go to, he has to have a home…The department is stuck with a child who has been abandoned. We have to take some sort of action so [the boy] has a roof over his head.”

‘Vindictive’ DCF decision

Mishael, the Rosenbergs’ lawyer, called the department’s actions “vindictive,” particularly DCF’s decision to refer the couple to the Leon County Sheriff’s Office for criminal prosecution. A retired Miami child welfare judge told the Herald such prosecutions were extremely rare, and the status of the felony investigation remains unclear. The Rosenbergs have not been charged.

Indeed, during the hearing Wednesday, DCF’s community director in the Panhandle, Terrence Watts, acknowledged that decisions in the case were being made by agency “leadership.” Earlier, the agency’s lawyer said the case was being handled “at levels far above mine.”

Mishael suggested DCF could have enrolled the family in voluntary services designed to avoid a change in custody – a common practice, even with abusive parents – but chose to wreak havoc on their lives instead.

“They are model parents, given the exceptional needs of this child,” Mishael said. He added: “The department singled this couple out for regulatory punishment – all because they came to the department and said we love our children and want them to be safe.”

Miller agreed with DCF that the agency had met its burden to make “reasonable efforts” to help the family, and avoid taking the child into custody.