MARJORIE MAE GERRY, PETITIONER,
v.
DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, RESPONDENT
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The Florida Supreme Court holds that a performance agreement or performance plan under section 409.168 is a prerequisite to permanent commitment proceedings to terminate parental rights under section 39.41(1)(f), even in cases involving severe child abuse. The Court requires HRS to offer a performance agreement to the parent before proceeding with permanent commitment and adoption termination.
The Court answers the certified question in the affirmative: a performance agreement or performance plan is a prerequisite to permanent commitment proceedings. Even in cases involving severe abuse where a safe return of the child to parents is untenable, HRS must offer a performance agreement to the parent, which may be directed toward permanent commitment for adoption rather than return to the parent.
[1] A performance agreement or performance plan, as prescribed by section 409.168, Florida Statutes, is a prerequisite to permanent commitment proceedings pursuant to section…
[2] Section 409.168, Florida Statutes (1983), requires that a performance agreement be prepared in every case where a child is in the custody of a social service agency and i…
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Join FLexlaw to unlock all legal intelligence“section 409.168, Florida Statutes (1983), requires that a performance agreement be prepared in every case where a child is in the custody of a social service agency and in foster care”
Establishes the mandatory nature of the performance agreement requirement across all cases
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Join FLexlaw to unlock all legal intelligenceMarjorie Gerry's young son suffered severe physical abuse while in her custody, resulting in blindness and brain damage. The trial court adjudicated t…
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McDONALD, Justice.
We have for review Gerry v. Aulls, 457 So. 2d 598 (Fla. 5th DCA 1984), which certified the following question of great public importance:
WHETHER EITHER A PERFORMANCE AGREEMENT OR A PERFORMANCE PLAN AS PRESCRIBED BY SECTION 409.168 IS A PREREQUISITE TO PERMANENT COMMITMENT PROCEEDINGS PURSUANT TO SECTION 39.41(l)(f)l.a.
Id. at 599. We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. We answer the certified question in the affirmative.
The trial court adjudicated Marjorie Gerry’s son dependent after the child had suffered severe physical abuse, resulting in blindness and brain damage, while in his mother’s custody. Gerry petitioned the district court for a common law writ of certiorari on the ground that the trial court departed from the essential requirements of law by denying her motion to require the Department of Health and Rehabilitative Services (HRS) to enter into a performance agreement with her so that she might regain custody of her son. The district court denied Gerry’s petition on the basis of its holding in In re C.B., 453 So. 2d 220 (Fla. 5th DCA 1984), that HRS need not prepare a performance agreement with a parent before bringing permanent commitment proceedings and terminating parental rights. The district court certified the same question presented in C.B.
In Burk v. Department of Health & Rehabilitative Services, 476 So. 2d 1275 (Fla.1985), we quashed C.B. and held that section 409.168, Florida Statutes (1983), requires that a performance agreement be prepared in every ease where a child is in the custody of a social service agency and in foster care. That holding is equally applicable here. We recognize that the child in this case has suffered horrible abuse from which he will probably never recover. Under these circumstances HRS might be justified in preparing a performance agreement for the permanent commitment of the child for adoption because a safe return of the child to his parents is untenable. § 409.168(3)(a)(l). A performance agreement must be offered to Gerry, even if not with a view toward returning custody to her. Accordingly, we answer the certified question in the affirmative, quash the decision under review, and remand for further consistent proceedings.
It is so ordered.
ADKINS, OVERTON and SHAW, JJ., concur. ALDERMAN, J., dissents with an opinion with which BOYD, C.J., and EHRLICH, J., concur.
ALDERMAN, Justice,
dissenting.
I dissent for the reason stated by me in my dissent to Burk v. Department of Health and Rehabilitative Services, 476 So. 2d 1275 (Fla.1985).
BOYD, C.J., and EHRLICH, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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In the Interest of J.A., 561 So. 2d 356 (Fla. 3d DCA 1990)…or, if this is not possible, the permanent commitment of the child to the department or licensed child-placing agency for the purpose of finding permanent adoptive home. (Emphasis added). Cf. Gerry v. Department of Health & Rehabilitative Services, 476 So. 2d 1279, 1280 (Fla.1985) (where there was documented child abuse, “HRS might be justified in preparing a performance agreement for the permanent commitment of the child for adoption because a safe return of the child to his parents is untenable.... A perfor…
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In the Interest of J.J.C., 498 So. 2d 604 (Fla. 2d DCA 1986)…hough the safe return of the child to his or her parents is untenable, a performance agreement or plan must be offered to the parents, even if not with a view toward returning custody to them. Gerry v. Department of Health & Rehabilitative Services, 476 So. 2d 1279 (Fla.1985). The holdings in Burk and Gerry are binding upon us and require us to reverse the order of permanent commitment entered in this case. Nothing we have said will require HRS to return the child to the custody of the mother pending further…
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In the Interest of B.W. v. State, 479 So. 2d 740 (Fla. 5th DCA 1985)…the Ellis’ are also the proposed adoptive parents. . Failure to substantially perform such a performance agreement is a condition precedent to permanently terminating parental rights. See Burk v. H.R.S., 476 So. 2d 1275 (Fla.1985); Gerry v. H.R.S., 476 So. 2d 1279 (Fla.1985); Yelverton v. H.R.S., 475 So. 2d 1038 (Fla. 5th DCA 1985). In Interest of C.B., 453 So. 2d 220 (Fla. 5th DCA 1984), although a parent had been found to have abused her child, the parent argued that under section 409.168, Florida Statutes,…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Burk v. Dep't of Health & Rehabilitative Servs., 476 So. 2d 1275 (Fla. 1985)
- In re the Interest of C.B. v. Dep't of Health & Rehabilitative Servs., 453 So. 2d 220 (Fla. 5th DCA 1984)
- Gerry v. The Honorable Ernest C. Aulls, Jr., 457 So. 2d 598 (Fla. 5th DCA 1984)