IN THE INTEREST OF J.H. AND S.H., CHILDREN. E.H., PETITIONER,
v.
DEPARTMENT OF CHILDREN AND FAMILY SERVICES, RESPONDENT
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The Florida District Court of Appeal reversed a circuit court's order restricting a non-offending father's visitation with his children to supervised-only status and requiring a psychological evaluation. The court found the order lacked any factual basis and was issued without proper notice or hearing, violating essential requirements of law.
No. The court held that any intrusion on a non-offending parent's parental rights must be justified by competent substantial evidence, and the circuit court's order violated this requirement as it was entirely unsupported by evidence.
[1] A court order restricting a parent's visitation rights must be supported by competent substantial evidence.
[2] A court may not impose visitation restrictions on a parent without prior notice of the issue being addressed at a hearing.
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Join FLexlaw to unlock all legal intelligence“Without prior notice, the circuit court ordered that E.H. could have only supervised visitation with his children, J.H. and S.H., until he complied with a recommendation for evaluation and treatment that was based on information known to be erroneous.”
Establishes the fundamental procedural defect and basis for reversal.
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Join FLexlaw to unlock all legal intelligenceE.H. was divorced from the children's mother and had unsupervised visitation. The children were adjudicated dependent based on allegations unrelated t…
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NORTHCUTT, Chief Judge.
Without prior notice, the circuit court ordered that E.H. could have only supervised visitation with his children, J.H. and S.H., until he complied with a recommendation for evaluation and treatment that was based on information known to be erroneous. The Department of Children and Family Services properly concedes that the court’s order departed from the essential requirements of law resulting in irreparable harm. Accordingly, we grant E.H.’s petition for writ of certiorari and quash the order on review.
The children live with their mother, from whom E.H. is divorced. The mother consented to a dependency adjudication based on allegations completely unrelated to E.H. (Although the dependency petition initially alleged that E.H. had abandoned the children, the Department soon dismissed the petition against him.) At the time of the dependency adjudication, E.H. had unsupervised visitation with the children. E.H. subsequently sought custody of the children, but the court first ordered a domestic violence evaluation. Thereafter, having complied with her case plan, the mother filed a motion for reunification that was granted after a hearing.
At that hearing the mother asked to have E.H. restricted to supervised visitation with the children. This issue was not noticed for the hearing. In fact, E.H. was not even present, although his attorney was. Moreover, no evidence supported the requested change.
Nevertheless, the circuit court ordered that E.H. could have only supervised visitation with his children until he submitted to a psychological evaluation. The circuit court maintained its insistence on the evaluation over the Department’s protests, in two subsequent hearings, that there was no factual basis for ordering it. Indeed, the appendix filed in this court reflects a total absence of factual support for the court’s order. When a child has been adjudicated dependent, the circuit court is authorized to order a nonoffending parent “to participate in treatment and services identified as necessary.” § 39.521(l)(b)(l), Fla. Stat. (2006). Certainly, any such intrusion on the parental rights of the nonoffender must be justified by competent substantial evidence. See C.K. v. Dep’t of Children & Families, 949 So. 2d 336 (Fla. 4th DCA 2007) (reversing obligations imposed on nonoffending parent in absence of sufficient evidence). Here, there was none.
Petition granted; order quashed.
FULMER and WHATLEY, JJ., Concur.
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In the Interest of A.W.P., JR. v. Dep't of Child. & Fam. Servs., 10 So. 3d 134 (Fla. 2d DCA 2009)…that an order on a motion to relinquish jurisdiction to another division of the circuit court in a dependency proceeding was not an order on an authorized motion and was reviewable by certiorari); see also E.H. v. Dep’t of Children & Family Servs., 979 So. 2d 363, 364 (Fla. 2d DCA 2008) (granting a petition for writ of certiorari regarding an order entered after a dependency adjudication that allowed a parent only supervised visitation). Thus, by prior order, we have converted the appeal to a certiorari proc…
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Fla. Dep't OF Child. & Families & the Guardian ad Litem Program v. R.A., 980 So. 2d 578 (Fla. 3d DCA 2008)…been responsible for the dependency proceeding in the first place, had been “remedied” as required by stat [*580] ute safely to permit the children to be returned home. See § 39.402(7), Fla. Stat. (2007);3 E.H. v. Dep’t of Children & Family Servs., 979 So. 2d 363 (Fla. 2d DCA 2008); Johnson v. Johnson, 979 So. 2d 350 (Fla. 5th DCA 2008); Margulies v. Margulies, 528 So. 2d 957 (Fla. 3d DCA 1988); Barreiro v. Barreiro, 377 So. 2d 999 (Fla. 3d DCA 1979). 2. Likely as a result of this deficiency, there was no c…1 / 2
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S.V. v. Dep't OF Child. & Families, 178 So. 3d 421 (Fla. 3d DCA 2015)…custody orders in family law matters, this rule is inapplicable to the trial court’s order in the instant proceeding. Common law certiorari is the appropriate avenue of review in this situation, See, e.g., E.H. v. Dep't of Children & Family Servs., 979 So. 2d 363 (Fla. 2d DCA 2008). . At the time, the children’s mother was unable to caro for them due to her own medical and-mental health issues. . The Father indicated in an October 2012 status hearing that he wanted custody of his sons. He obtained a positi…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- C.K. v. Dep't of Child. & Families, 949 So. 2d 336 (Fla. 4th DCA 2007)