M.E.G. v. Dept. Child., Fam

Full title: M.E.G., MOTHER OF S.R.G., A CHILD, Appellant, v. DEPARTMENT OF CHILDREN…

Court: District Court of Appeal of Florida, Fifth District

Date published: Dec 7, 2001

805 So. 2d 40 (Fla. Dist. Ct. App. 2001)

Opinion

No. 5D00-2560

Opinion filed December 7, 2001

Appeal from the Circuit Court for Brevard County, Tonya Rainwater, Judge.

Lisa L. Hogreve of Hogreve Hogreve, LC, Rockledge, for Appellant.

No Appearance for Appellee.

PER CURIAM.

The order of disposition appealed is dated August 8, 2000, nunc pro tunc to September 12, 1995 and recites that it is based upon facts included in an order of adjudicatory hearing entered September 12, 1995, a review of the court file and a transcript of a hearing held on September 12, 1995. The order also recites that because an attorney for the petitioners failed to submit an order of disposition after the 1995 hearing, an order was never entered.

Because of the procedural anomalies that allowed nearly five years to pass between the hearing and the order of disposition, the order was not based upon current facts. Circumstances have assuredly changed between 1995 and 2000 and a new dependency hearing to determine the current circumstances is required. See Ritter v. Dep't of Children and Family Services, 700 So.2d 804 (Fla. 5th DCA 1997) (delay of 27 months in case resolving question of dependence called for all orders to be vacated and a new evidentiary hearing to be conducted).

The order of disposition is vacated and this matter is remanded for a new dependency hearing.

ORDER VACATED; REMANDED.

HARRIS, PETERSON and SAWAYA, JJ., concur.

PETERSON, J.

The Department of Children and Families (Department) has moved for rehearing or clarification in this appeal, advising that the opinion of this court filed December 7, 2001 attributes omissions to its counsel and implies the Department failed to fulfill its duties by making no appearance in the appeal.

We agree that the opinion does convey those messages and grant its motion for clarification. The Department only investigated the allegations of abuse and neglect, and finding none, declined to proceed further. It was the maternal grandparents who exercised thier rights under sections 39.501(1) and 39.802(1), Florida Statutes, to file a petition and litigate the matter to a conclusion, not the Department.

MOTION GRANTED.

HARRIS and SAWAYA, JJ., concur.