A.A., THE MOTHER, PETITIONER,
v.
DEPARTMENT OF CHILDREN AND FAMILIES, ET AL., RESPONDENTS

Fla. 3d DCA | 2014-09-10
No. 3D14-1020
Before LAGOA, EMAS and FERNANDEZ, JJ.
147 So. 3d 621 Florida District Court of Appeal, Third District (2014) Positive Treatment
Cited by 4 cases

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Holding

The court held that the trial court's denial of a motion for modification of a permanency order without an evidentiary hearing and without making required findings of fact constitutes a departure from the essential requirements of law.


Headnotes

[1] A trial court must hold an evidentiary hearing before denying a parent's motion for reunification or increased contact with a child after a permanency order has been ente…

[2] A trial court's order denying a parent's motion for reunification or increased contact must contain findings of fact addressing statutory factors related to the child's s…

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Facts & Procedural History

Following the adjudication of dependency and placement of children in permanent guardianship, the mother moved for modification and reunification. The…

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Opinion of the Court
EMAS, J.

EMAS, J.

A.A., the Mother/Petitioner (“Petitioner”), has filed a petition for writ of certio-rari seeking review of the trial court’s order denying her motion for modification of a permanency order' and reunification with her children. For the reasons that follow, we grant the petition and quash the order below.

In 2011 the Petitioner’s children were adjudicated dependent and, in 2012, the trial court closed the case with the entry of an order placing the children in a permanent guardianship under the care and supervision of the children’s stepfather. The terms of the permanency order permitted supervised visitation by Petitioner.

In October 2013, Petitioner filed a sworn motion to reopen the case and sought modification of the permanency order and reunification with the children. The trial court reopened the case and, in December 2013, ordered a psychological evaluation of Petitioner. On February 24, 2014, without conducting an evidentiary hearing, the trial court denied Petitioner’s motion for modification. Petitioner sought rehearing alleging, inter alia, that the trial court failed to conduct an evidentiary hearing. The trial court denied the motion for rehearing.

It is undisputed that the trial court failed to hold an evidentiary hearing before denying the motion for modification. Petitioner asserts that, as a result, she was denied her due process right to present evidence and testimony in support of her motion. We agree. Once a permanency order is in place, section 39.621(9), Florida Statutes (2014), places the burden on the parent seeking reunification or increased contact with the child:

The permanency placement is intended to continue until the child reaches the age of majority and may not be disturbed absent a finding by the court that the circumstances of the permanency placement are no longer in the best interest of the child. If a parent who has not had his or her parental rights terminated makes a motion for reunification or increased contact with the child, the court shall hold a hearing to determine whether the dependency case should be reopened and whether there should be a modification of the order. At the hearing, the parent must demonstrate that the safety, well-being, and physical, mental, and emotional health of the child is not endangered by the modification.
*623(Emphasis supplied). See also Fla. R. Juv. P. 8.430(a)-(b)(l).

In the instant case, the trial court failed to conduct an evidentiary hearing, denying Petitioner a reasonable opportunity to present evidence and testimony to meet her burden to “demonstrate that the safety, well-being, and physical, mental, and emotional health of the child is not endangered by the modification.” We reject Respondent’s contention that, because the statute does not expressly require an evi-dentiary hearing, none was required. See Dep’t of Children and Families v. W.H., 109 So.3d 1269 (Fla. 1st DCA 2013); Dep’t of Children and Families v. B.D., 102 So.3d 707 (Fla. 1st DCA 2012). See also, Dep’t of Children and Families v. R.A., 980 So.2d 578 (Fla. 3d DCA 2008).

Petitioner further contends, and we agree, that the trial court’s order denying modification fails to contain the findings of fact required by section 39.621(10), Florida Statutes (2014), which provides:

The court shall base its decision concerning any motion by a parent for reunification or increased contact with a child on the effect of the decision on the safety, well-being, and physical and emotional health of the child. Factors that must be considered and addressed in the findings of fact of the order on the motion must include:
(a) The compliance or noncompliance of the parent with the case plan;
(b) The circumstances which caused the child’s dependency and whether those circumstances have been resolved;
(c) The stability and longevity of the child’s placement;
(d) The preferences of the child, if the child is of sufficient age and understanding to express a preference;
(e) The recommendation of the current custodian; and
(f) The recommendation of the guardian ad litem, if one has been appointed. (Emphasis supplied). See also Fla. R. Juv. P. 8.430(b)(2).

The order in the instant case recited the result of the psychological evaluation (which indicated that Petitioner’s mental illness has not significantly improved to the point where she could adequately and safely parent her children), and indicated that the guardian ad litem recommended closing the case.1

The combined failures to hold an evidentiary hearing and to make written factual findings addressing the requisite factors enumerated in section 39.621(10), constitute a departure from the essential requirements of law, causing material injury that cannot be remedied on direct appeal.2 W.H., 109 So.3d at 1270.

*624We therefore grant the petition, quash the order under review and remand this cause to the trial court to conduct an evi-dentiary hearing and render an order in compliance with section 39.621(9) and (10), Florida Statutes.


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Citator

Cited By

  • …der.4 II. Discussion “There is generally no right to review by appeal of nonfinal orders in child dependency proceedings. However, common law certiorari provides a remedy under appropriate circumstances .... ” A.A. v. Dep’t of Children & Families, 147 So. 3d 621, 623 n.2 (Fla. 3d DCA 2014) (citations omitted). “Certiorari review of a nonfinal order is limited to errors that constitute a departure from the essential requirements of the law, causing irreparable injury, for which there is no adequate remedy on…
  • …2d DCA 2017) ("Orders granting reunification in the absence of written findings addressing the best interest factors have been held to constitute a departure from the essential requirements of the law." (first citing A.A. v. Dep't of Child. & Fams., 147 So. 3d 621, 623 (Fla. 3d DCA 2014); and then citing Dep't of Child. & Fams. v. W.H., 109 So. 3d 1269, 1270 (Fla. 1st DCA 2013))); W.H., 109 So. 3d at 1270 (holding that grant of reunification after failing to make written findings regarding the six factors in…

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