IN THE INTEREST OF J.M., A/K/A J.W. A MINOR CHILD
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Florida appellate court reversed dismissal of grandparents' dependency petition, holding that private citizens have independent statutory right to file such petitions regardless of HRS's position.
Private citizens have an independent statutory right under section 39.404(1) to file and pursue dependency petitions without HRS consent or involvement.
[1] A private citizen's statutory right to file a dependency petition under section 39.404(1) is independent of and cannot be defeated by the Department of Health and Rehabil…
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Join FLexlaw to unlock all legal intelligence“Nothing in this section shall interfere with the right or decision of any person to file a petition alleging dependency.”
Section 39.404(1) statutory language protecting private right to file dependency petitions
Maternal grandparents filed a petition for dependency of their minor grandchild J.M. The Department of Health and Rehabilitative Services moved to dis…
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PER CURIAM.
Appellants, the maternal grandparents of J.M., appeal the circuit court’s order dismissing their petition for dependency on the motion of the Department of Health and Rehabilitative Services (HRS). Relying on McCutcheon v. Trettis, 501 So. 2d 710 (Fla. 2d DCA 1987), the lower court reasoned that it had no authority to proceed in the case since HRS desired a dismissal. McCutcheon, however, is distinguishable from the present case because there, unlike here, HRS was the petitioner.
Section 39.404(1), Florida Statutes (1989), controls here, giving appellants the right to file and pursue a petition for dependency independent of HRS. Appellants correctly point out that section 39.404(1), provides that “any person” who has knowledge of. the facts alleged or is informed of them and believes that they are true may file a petition for dependency, and states that “[njothing in this section shall interfere with the right or decision of any person to file a petition alleging dependency.” See also In the Interest of J.R.T., 427 So. 2d 251 (Fla. 5th DCA 1983) (to hold that HRS alone can initiate petition for termination of parental rights would permit the agency to restrict and frustrate the inherent and statutory authority of the circuit court to protect the welfare of minor children.)
Accordingly, we hold that the trial court erred in concluding that it was required to dismiss the petition simply because HRS desired its dismissal, and reverse and remand for further proceedings. We decline to address, as premature, the additional issues raised by HRS.
HERSEY, C.J., and ANSTEAD and GUNTHER, JJ., concur.
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Citator
Cited By
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Norris v. Spencer, 568 So. 2d 1316 (Fla. 5th DCA 1990)…n proceedings would be to permit the agency to restrict and frustrate the inherent and statutory authority of the court to protect the welfare of minor children. See also In Interest of C.B., 561 So. 2d 663 (Fla. 5th DCA 1990); In Interest of J.M., 560 So. 2d 343 (Fla. 4th DCA 1990). This court has recognized that the ability of a trial court to protect a minor from unreasonable action or inaction on the part of H.R.S. must not be frustrated. It is clear that the appellants herein had standing to initiate t…
Authorities Cited
- In the Interest of J.R.T. v. State, 427 So. 2d 251 (Fla. 5th DCA 1983)
- McCUTCHEON v. Honorable Thomas T. Trettis, 501 So. 2d 710 (Fla. 2d DCA 1987)