IN THE INTEREST OF J.L.R., JR., AND N.R., CHILDREN. S.W-R., APPELLANT,
v.
DEPARTMENT OF CHILDREN AND FAMILY SERVICES AND GUARDIAN AD LITEM PROGRAM, APPELLEES
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A mother challenged a circuit court's order establishing permanent guardianship of her two children with their maternal grandmother, specifically objecting to the visitation schedule. The Florida appellate court affirmed the guardianship but reversed and remanded the visitation provision because the order failed to specify the frequency and nature of visitation as required by statute, instead leaving it to the grandmother's discretion.
The court affirmed the permanent guardianship placement but reversed and remanded the visitation provision. The order violated section 39.6221(2)(c) by failing to specify the frequency and nature of visitation and instead delegating that determination to the maternal grandmother's unfettered discretion. The trial court must on remand establish a specific visitation schedule in accordance with the statutory requirement.
[1] A court order placing a child in permanent guardianship must specify the frequency and nature of visitation between the child and their parents.
[2] A court order that fails to specify the frequency and nature of visitation between a child and their parents must be reversed.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Section 39.6221(2)(c), Florida Statutes (2010), requires the circuit court's written order to "[s]pecify the frequency and nature of visitation or contact between the child and his or her parents." This plain language mandates that the court establish a specific visitation schedule rather than leaving visitation to the discretion of either of the parties.”
Establishes the statutory requirement and the court's interpretation that discretion cannot be delegated to guardians
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Join FLexlaw to unlock all legal intelligenceS.W-R. is the mother of two children, J.L.R., Jr., and N.R. The circuit court placed the children in permanent guardianship with their maternal grandm…
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S.W-R., the mother, challenges the circuit court’s order placing two of her children, J.L.R., Jr., and N.R., in a permanent guardianship with their maternal grandmother. We affirm all aspects of the order except as to the visitation schedule between S.W-R. and the children. On that single point, we reverse and remand for further proceedings.
Section 39.6221(2)(c), Florida Statutes (2010), requires the circuit court’s written order to “[sjpecify the frequency and nature of visitation or contact between the child and his or her parents.” This plain language mandates that the court establish a specific visitation schedule rather than leaving visitation to the discretion of either of the parties. See R.N. v. Dep’t of Children & Family Servs., 55 So.3d 685, 685-86 (Fla. 2d DCA 2011). An order that does not comply with the requirements of section 39.6221 must be reversed. See, e.g., J.S. v. Dep’t of Children & Family Servs., 18 So.3d 712, 714 (Fla. 2d DCA 2009); R.T., Sr. v. Dep’t of Children & Families, 27 So.3d 195, 196 (Fla. 5th DCA 2010).
In this case, over S.W-R.’s objection, the circuit court failed to “[sjpecify the frequency and nature of visitation or contact between” S.W-R. and her children. Instead, in a somewhat ambiguous fashion, the written order provides for visitation biweekly for an hour to an hour and a half “or at the discretion of the caregiver.” Thus, the order places complete discretion concerning the frequency and duration of visitation with the maternal grandmother. Aside from the violation of the statutory language, this order creates a significant problem in this case in which S.W-R. has a strained relationship with the maternal grandmother. And the court’s oral suggestion that the parties “compromise” does not provide any guidance to the parties as *1285to the court’s intent concerning the extent of the maternal grandmother’s discretion.
Therefore, we reverse the circuit court’s order appointing a permanent guardian to the extent that it leaves the nature and frequency of any visitation between S.WR. and the children to the maternal grandmother’s unfettered discretion and remand for the trial court to delineate S.W-R.’s visitation rights with her children in accordance with section 39.6221(2)(c).
Affirmed in part, reversed in part, and remanded.
NORTHCUTT and WALLACE, JJ„ Concur.
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Citator
Cited By
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In the Interest of R.C. v. Dep't of Child. & Fam. Servs. & Guardian Ad Litem Program, 118 So. 3d 924 (Fla. 2d DCA 2013)
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In the Interest of H.T. v. Dep't of Child. & Families & Guardian Ad Litem Program, 204 So. 3d 120 (Fla. 2d DCA 2016)
Authorities Cited
- Rutig v. State, 18 So. 3d 712 (Fla. 5th DCA 2009)
- R.T., SR. v. Dep't of Child. & Families, 27 So. 3d 195 (Fla. 5th DCA 2010)
- In the Interest of J.S. and A.S. v. Dep't of Child. & Fam. Servs. & Statewide Guardian Ad Litem Off., 18 So. 3d 712 (Fla. 2d DCA 2009)
- Jackson v. State, 55 So. 3d 685 (Fla. 2d DCA 2011)
- In the Interest of A.N. v. Dep't of Child. & Fam. Servs., 55 So. 3d 685 (Fla. 2d DCA 2011)