EDWARD CHEW AND PHYLLIS CHEW, PETITIONERS,
v.
EARNEST ROBERTS, CYNTHIA ROBERTS AND DEPARTMENT OF CHILDREN AND FAMILIES, RESPONDENTS
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Foster parents Edward and Phyllis Chew sought certiorari review of an order consolidating their adoption case with a termination of parental rights case and granting the Roberts' motion to modify placement. The court granted relief because the trial court violated due process by considering the consolidation motion without properly serving the Chews.
The court held that the trial court departed from the essential requirements of law and violated the Chews' due process rights by proceeding to consider and rule on the consolidation motion without proper notice to the Chews. The court quashed the order granting the consolidation motion and the scheduled evidentiary hearing because the Chews were denied due process.
[1] A trial court commits a departure from the essential requirements of law, warranting certiorari relief, when it considers and rules upon a motion to consolidate without p…
[2] Consolidating cases and implicitly granting party status to individuals who may only be participants can cause irreparable harm, making certiorari an appropriate remedy.
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Join FLexlaw to unlock all legal intelligence“the trial court departed from the essential requirements of law when it proceeded, over objection, to consider and rule upon the Roberts' motion to consolidate despite the lack of notice to Petitioners”
Establishes the core holding that due process requires notice and opportunity to be heard before ruling on a consolidation motion with potentially significant legal consequences.
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Join FLexlaw to unlock all legal intelligenceB.E., a young boy in the Chews' foster care for three years, had his parental rights terminated on November 30, 2012, with custody committed to the De…
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Edward and Phyllis Chew seek certio-rari review of a non-final order consolidating an adoption case brought by Respondents Earnest and Cynthia Roberts with a termination of parental rights case brought by the Department of Children and Families (“DCF”), and scheduling an evidentiary hearing on the Roberts’ amended motion to modify placement. Because Petitioners were denied due process when the trial court considered and ruled upon the Roberts’ motion to consolidate, we grant relief.
Petitioners are the foster parents of B.E., a young boy who has been in their care for the past three years. B.E.’s parents’ parental rights were terminated on November 30, 2012. The final judgment of termination of parental rights committed *495B.E. to DCF for subsequent adoption. See § 39.811(2), Fla. Stat. (2012).1 Petitioners -wish to adopt B.E. and on May, 22, 2013, moved to intervene as parties in the dependency case under the authority of I.B. v. Department of Children & Families, 876 So.2d 581 (Fla. 5th DCA 2004). That motion was granted by the trial court on June 13, 2013.
The Roberts are the maternal great uncle and great aunt of B.E. and also wish to adopt him. In February 2013, the Roberts filed a separate action seeking to adopt B.E. The Roberts’ filing would appear to be contrary to the dictates of section 39.812(5), Florida Statutes (2012). That statute provides: “[t]he petition for adoption must be filed in the division of the circuit court which entered the judgment terminating parental rights unless a motion for change of venue is granted....”
On May 1, 2013, the Roberts filed an amended motion to modify placement in both cases, seeking to have B.E. placed in their home. This motion was noticed for a hearing to be held on June 25, 2013. On June 19, 2013, Petitioners filed a motion to strike the Roberts’ amended motion to modify placement, asserting that the Roberts were not “parties” in the dependency case and, therefore, lacked standing to file a motion to modify placement. On June 21, 2013, the Roberts filed a motion to consolidate the two above-referenced cases, but failed to include Petitioners in the certificate of service.
At the onset of the June 25, 2003 hearing, the Roberts requested the trial court grant their motion to consolidate. Petitioners objected to the trial court considering the motion to consolidate because they had not been served with a copy of the motion (or a notice of hearing for said motion). The trial court determined that before it could consider the amended motion to modify placement, it would be necessary to consolidate the two cases. The court then overruled Petitioners’ lack of notice objection, granted the motion to consolidate, and scheduled the amended motion to modify placement for an eviden-tiary hearing to be held at a later date.
Certiorari review of a non-final order is limited to errors that constitute a departure from the essential requirements of law, causing irreparable injury, for which there is no adequate remedy on direct appeal. In re A.W.P., Jr., 10 So.3d 134, 135 (Fla. 2d -DCA 2009). Here, the trial court departed from the essential requirements of law when it proceeded, over objection, to consider and rule upon the Roberts’ motion to consolidate despite the lack of notice to Petitioners. Id. at 136 (“Because the father was denied due process, we grant certiorari relief and quash the Order Approving Educational Plans.”); see Dep’t of Children & Families v. W.H., 109 So.3d 1269, 1270 (Fla. 1st DCA 2013) (“The lack of notice and the lack of an evidentiary hearing on reunification violated the Department’s right to due process”).
In the instant case, the trial court’s granting of the Roberts’ motion to consolidate had potentially significant legal implications beyond merely having two separate actions heard together. The trial court’s decision on the motion to consolidate implicitly granted the Roberts status as “parties” 2 rather than as “participants”3 in the dependency case — a legal status to which *496they may well not be entitled. See, e.g., In re J.P., 12 So.3d 258 (Fla. 2d DCA 2009); In re K.M., 978 So.2d 211 (Fla. 2d DCA 2008).
A petition for writ of certiorari is appropriate to review an order granting a participant’s motion to intervene as a party in a dependency proceeding. J.P., 12 So.3d at 254. The jurisdictional requirements for certiorari review are met because the erroneous granting of a participant’s motion to intervene as a party “may reasonably cause material injury of an irreparable nature.” Id. Because neither the Petitioners nor the Roberts were afforded the opportunity to be fully heard on this issue below, we decline to determine whether the Roberts may be granted “party” status in the dependency case below. For the same reason, we decline to determine the legal sufficiency of the Roberts’ Petition for Adoption by Relatives filed in their separate action.
PETITION FOR WRIT OF CERTIO-RARI GRANTED; ORDER GRANTING MOTION TO CONSOLIDATE AND SCHEDULING EVIDENTIARY HEARING ON AMENDED MOTION TO MODIFY PLACEMENT QUASHED.
LAWSON and COHEN, JJ„ concur.
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- In the Interest of A.W.P., JR. v. Dep't of Child. & Fam. Servs., 10 So. 3d 134 (Fla. 2d DCA 2009)
- I.B. and D.B. v. Dep't of Child. & Families, 876 So. 2d 581 (Fla. 5th DCA 2004)
- In the Interest of K.M. v. Dep't of Child. & Families, 978 So. 2d 211 (Fla. 2d DCA 2008)
- Dep't OF Child. & Families v. W.H., 109 So. 3d 1269 (Fla. 1st DCA 2013)