IN THE INTEREST OF C.K., A CHILD. C.K., APPELLANT,
v.
DEPARTMENT OF CHILDREN AND FAMILY SERVICES AND GUARDIAN AD LITEM PROGRAM, APPELLEES

Fla. 2d DCA | 2012-05-04
No. 2D12-633
DAVIS and KHOUZAM, JJ., Concur.
88 So. 3d 975 Florida District Court of Appeal, Second District (2012) Positive Treatment
Cited by 14 cases

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Holding

The court held that a party in a dependency proceeding was denied procedural due process and statutory notice rights when a no-contact order was issued without notice or an opportunity to be heard.


Headnotes

[1] A party in a dependency proceeding is entitled to reasonable notice of any hearing.

[2] Procedural due process requires both fair notice and a meaningful opportunity to be heard.

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Facts & Procedural History

In a dependency action, a father (C.K.) was issued a no-contact order with the mother without notice of the hearing or an opportunity to be heard. The…

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Opinion of the Court
MORRIS, Judge.

MORRIS, Judge.

C.K., the father, seeks a writ of certiora-ri directed at the dependency drug court’s order prohibiting him from having contact with the mother, V.M., until further order of the court. We treat the petition as an appeal from a nonfinal order granting an injunction. See Fla. R.App. P. 9.130(a)(3)(B); Bistricer v. Oceanside Acquisitions, LLC, 937 So.2d 786 (Fla. 2d DCA 2006). The Department of Children and Family Services (DCF) concedes error because C.K. received no notice of the hearing at which the order was issued and therefore no opportunity to be heard. We reverse and remand.

I. Background

In this dependency action, C.K. was originally ordered to comply with his case plan tasks, which included, among other things, that C.K. participate in the dependency drug court program. After C.K.’s first-appearance hearing before the dependency drug court was continued but prior to the continued date, the drug court held an interim hearing for which C.K. received no notice. As a result, neither C.K. nor his counsel was present at the hearing. During that hearing, the drug court issued the no-contact order.1 C.K. was unaware of the order until he arrived at the continued first-appearance hearing at which point he was served with the order. C.K’s counsel inquired about the order, and the drug court indicated that it issued the order because C.K. had refused to sign a medical release form and that the drug court was prevented from “finding] out what his status was” so that C.K. could be treated. This prevented the drug court from “monitoring] the situation.” C.K’s counsel later inquired about the basis for *977the no-contact provision, but no one present, including the drug court judge, responded to the question. Instead, the hearing was concluded.

II. Analysis

We review whether a party was denied the opportunity to be heard for abuse of discretion. See Douglas v. Johnson, 65 So.3d 605, 607 (Fla. 2d DCA 2011).

Section 39.502(1) and (4)-(9), Florida Statutes (2011), requires that parties in dependency proceedings receive notice. Similarly, Florida Rule of Juvenile Procedure 8.255(h), applicable to dependency proceedings, provides that “[w]hen these rules do not require a specific notice, all parties will be given reasonable notice of any hearing.” Thus, both the statute and rule require notice to all parties in dependency proceedings.

“The right to reasonable notice also implicates constitutional due process concerns.” Borden v. Guardianship of Borden-Moore, 818 So.2d 604, 607 (Fla. 5th DCA 2002). Procedural due process is required in order ‘“to ensure fair treatment,’ ” and it is comprised of “both fair notice and a real opportunity to be heard.” Id. (quoting Keys Citizens for Responsible Gov’t, Inc. v. Fla. Keys Aqueduct Auth., 795 So.2d 940, 948 (Fla.2001) (internal quotation marks omitted)). “ ‘The notice must be of such nature as reasonably to convey the required information, and it must afford a reasonable time for those interested to make their appearance ... [while] the opportunity to be heard must be at a meaningful time and in a meaningful manner.’” Id. (quoting Keys Citizens, 795 So.2d at 948) (internal quotation marks omitted).

In the context of injunction proceedings, this court and others have found that where a party was not provided with reasonable notice or a meaningful opportunity to be heard, a procedural due process violation occurred. See L.C. v. A.M.C., 67 So.3d 1181, 1182-83 (Fla. 2d DCA 2011); Douglas, 65 So.3d at 607; Smith v. Smith, 964 So.2d 217, 219. (Fla. 2d DCA 2007); Dep’t of Children & Families v. D.B.D., 42 So.3d 916, 920-21 (Fla. 4th DCA 2010); see also Brooks v. Barrett, 694 So.2d 38, 38 (Fla. 1st DCA 1997) (holding — without discussing procedural due process implications — that trial court could not sua sponte amend an injunction where there had been no notice or hearing).

Here, C.K. was provided with no notice, nor was he provided with an opportunity to be heard. Consequently, his procedural due process rights were violated as were the notice provisions of section 39.502(1) and (4)-(9) and rule 8.255(h), and the trial court abused its discretion in entering the no-contact order. Accordingly, we reverse and remand for further proceedings.

Reversed and remanded.

DAVIS and KHOUZAM, JJ., Concur.


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Cited By

  • Dep't OF Child. & Families v. T.S., 154 So. 3d 1223 (Fla. 4th DCA 2015)
    …opportunity to be heard and to present evidence, violated her due process rights, constituting fundamental error. “We review whether a party was denied the opportunity to be heard for abuse of discretion.” C.K. v. Dep’t of Children & Family Servs., 88 So. 3d 975, 977 (Fla. 2d DCA 2012). “All procedures in a dependency case must comport with due process principles.” E.G-S. v. Dep’t of Children & Family Servs., 113 So. 3d 77, 79 (Fla. 2d DCA 2013) (citation omitted). When due process is denied, fundamental e…
  • Ferris v. Winn, 242 So. 3d 509 (Fla. 2d DCA 2018)
  • Harris v. Dep't OF Revenue o/b/o Vanda Insixiengmay, 191 So. 3d 921 (Fla. 2d DCA 2016)
    …Ed.2d 18 (1976)). This court reviews “whether a party was denied the opportunity to be heard for abuse of discretion.” Dep’t of Children & Families v. T.S., 154 So. 3d 1223, 1226 (Fla. 4th DCA 2015) (citing C.K. v. Dep’t of Children & Family Servs., 88 So. 3d 975, 977 (Fla. 2d DCA 2012)). Trial courts enjoy broad discretion in ruling on motions for continuance. Neal v. Swaby, 975 So. 2d 431, 433 (Fla. 2d DCA 2007). “The same discretion is vested in the ALJ.” Milanick v. Osborne, ,6 So. 3d 729, 730 (Fla. 5th…

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