IN THE INTEREST OF D.F., K.W., T.W., ALL CHILDREN

Fla. 1st DCA | 1992-07-02
No. 91-3378
SMITH and BARFIELD, JJ., concur.
602 So. 2d 970 Florida District Court of Appeal, First District (1992) Positive Treatment
Cited by 3 cases

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Synopsis

The appellate court reversed in part an order finding children dependent due to egregious emotional abuse and directing termination of parental rights, holding the trial court erred by pre-determining grounds for termination without proper notice and opportunity for the parent to be heard.


Holding

The trial court erred by finding egregious abuse to be satisfactorily proved for purposes of a future termination hearing and by attempting to relieve the department of its obligation to prove all elements required for termination.


Headnotes

[1] A trial court cannot relieve a party of the burden of proving all elements required for termination of parental rights in a future hearing by making a preliminary finding…

[2] A party is entitled to notice and an opportunity to defend against allegations supporting termination of parental rights at a termination hearing.

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Facts & Procedural History

The Department of Health and Rehabilitative Services filed a dependency petition alleging emotional abuse. The trial court found egregious emotional a…

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Opinion of the Court
ALLEN, Judge.

ALLEN, Judge.

The appellant challenges an order in which the trial court determined that his children were dependent and directed the Department of Health and Rehabilitative Services (the department) to file a petition to terminate his parental rights. Concluding that two of the points raised by the appellant have merit, we reverse the order in part and remand for further proceedings.

Alleging that the appellant’s children had been emotionally abused, the department filed a petition requesting an adjudication that the children are dependent as defined in chapter 39, Florida Statutes (1991).

At the conclusion of the hearing on the petition, the trial court entered an order finding, by clear and convincing evidence, that both parents were guilty of “egregious emotional abuse” of the children pursuant to section 39.464(4), Florida Statutes.1 The court directed the department to file a petition to terminate the appellant’s parental rights within sixty days and placed the children with the mother under the department’s supervision. The court’s order also provides: “At the hearing to terminate [the appellant’s parental rights] HRS need only to prove the manifest best interest of the children, the conditions of 39.464(4) having previously been fulfilled.”

The appellant correctly argues that the trial court has, without prior notice to him, endeavored to relieve the department of its obligation to prove each of the elements required by section 39.467, Florida Statutes, for a termination of parental rights. The court attempted to narrow the focus of the issues at the upcoming termination proceeding by making, in advance, its finding that a basis for termination of the appellant’s parental rights exists. That attempt to shortcut the proof required at the upcoming termination hearing far exceeded the limited authority given trial judges in Rule 8.330(a), Florida Rules of Juvenile Procedure, and it effectively deprives the appellant of his right to a full and fair termination hearing. When served with the dependency petition, the appellant had no way of knowing that grounds for a termination of his parental rights would be at issue at the hearing. Until receipt of the court’s order, he had no reason to believe that he needed to defend an allegation supporting a termination of his parental rights.

Accordingly, we reverse those portions of the order finding the abuse to be “egregious” and providing that egregious abuse has been satisfactorily proved for purposes of a future hearing relating to termination of the appellant’s parental rights. Prior to any termination of his parental rights, the appellant is entitled to the process set out in section 39.462, Florida Statutes, and, at the termination hearing, he is entitled to have all of the elements specified in subsection 39.467(3), Florida Statutes, proved by clear and convincing evidence.

We also find error in that portion of the court's order directing that the children be returned to the custody of the mother. In effect, the court considered the disposition issue at the dependency hearing and placed the children accordingly, without the benefit of the predisposition study required by section 39.408(3), Florida Statutes. We therefore reverse that portion of the order which places the children with the mother and we remand this cause to the trial court to reconsider the disposition issue. See In Interest of R.A.L., 440 So. 2d 473 (Fla. 5th DCA 1983).

In order to avoid a potentially unnecessary disruption of the status quo, the trial court is authorized to temporarily leave the appellant’s children in the custody of their mother, pending expeditious receipt and consideration of a predisposition study.

The appellant’s remaining arguments are without merit. Accordingly, except as otherwise provided herein, the appealed order is affirmed.

AFFIRMED in part, REVERSED in part, and REMANDED.

SMITH and BARFIELD, JJ., concur. . Section 39.464(4), Florida Statutes, provides in relevant part:

The department, ... may petition for the termination of parental rights under any of the following circumstances:
(4) EGREGIOUS ABUSE. — The parent or parents have engaged in egregious conduct that endangers the life, health, or safety of the child or sibling, or the parents have had the opportunity or capability to prevent egregious conduct that threatened the life, health, or safety of the child or sibling and have knowingly failed to do so.... For the purposes of this subsection, "egregious abuse” means conduct of the parent or parents that is deplorable, flagrant, or outrageous a normal standard of conduct. “Egregious abuse" may include an act or omission that occurred only once, but was of such intensity, magnitude, or severity as to endanger the life of the child.

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Citator

Cited By

  • In the Interest of D.F., 622 So. 2d 1102 (Fla. 1st DCA 1993)
    …on of parental rights, “HRS need only to prove the manifest best interest of the children, the conditions of 39.464(4) having previously been fulfilled.” The father took an appeal of the trial court’s order. See In the Interest of D.F., K.W., T.W., 602 So. 2d 970 (Fla. 1st DCA 1992). Our prior opinion held that the dependency petition failed to place the father on notice that grounds for termination of parental rights would be at issue at the dependency hearing. Although “egregious abuse” constitutes grounds…
  • ASH v. Dep't of Health & Rehabilitative Servs., 649 So. 2d 305 (Fla. 5th DCA 1995)
    …tation of witness testimony or sworn documentation. Ash is concerned that the finding by the trial court can be used to terminate her parental rights in a subsequent proceeding without HRS having to present testimony. See In re the Interest of D.F., 602 So. 2d 970 (Fla. 1st DCA 1992). This issue is not addressed because the only viable order before the court did not comply with the rules of juvenile procedure and that non-compliance is dispositive of the appeal. There are no written findings in the 24 June…
  • In the Interest of A.R.S. & S.S. v. State, 617 So. 2d 1148 (Fla. 2d DCA 1993)
    …e trial court made a specific finding as to each element enumerated in [*1149] the statute. In addition, the court found that the elements of section 39.467(3) had been proven by clear and convincing evidence. In the Interest of D.F., K.W. and T.W., 602 So. 2d 970 (Fla.1st DCA 1992). Competent, substantial evidence supports the trial court’s findings and decision that the evidence clearly showed neglect and abandonment of the children by appellant. Appellant does not seriously dispute the findings of the tria…

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