Opinion
3D24-0404
06-19-2024
B.D., the Mother, Appellant, v. Department of Children and Families, et al., Appellees.
Eugene F. Zenobi, Criminal Conflict and Civil Regional Counsel, Third Region, and Kevin Coyle Colbert, Assistant Regional Counsel, for appellant. Sara Elizabeth Goldfarb, Statewide Director of Appeals and Laura J. Lee, Assistant Director of Appeals (Tallahassee), for appellee the Statewide Guardian ad Litem Office; Karla Perkins, for appellee the Department of Children and Families.
Not final until disposition of timely filed motion for rehearing.
An Appeal from the Circuit Court for Miami-Dade County Lower Tribunal No. 23-15489, Carlos Guzman, Judge.
Eugene F. Zenobi, Criminal Conflict and Civil Regional Counsel, Third Region, and Kevin Coyle Colbert, Assistant Regional Counsel, for appellant.
Sara Elizabeth Goldfarb, Statewide Director of Appeals and Laura J. Lee, Assistant Director of Appeals (Tallahassee), for appellee the Statewide Guardian ad Litem Office; Karla Perkins, for appellee the Department of Children and Families.
Before SCALES, GORDO and BOKOR, JJ.
ON MOTION FOR REHEARING OR CLARIFICATION
SCALES, J.
Upon consideration of the Statewide Guardian ad Litem's motion for rehearing or clarification, the Court denies the rehearing motion, but grants the clarification motion, withdraws its opinion of May 1, 2024, and replaces it with the following opinion.
B.D., the mother, seeks to quash, via a petition for writ of certiorari, a portion of a February 2, 2024 Order of Disposition that required B.D. to undergo a psychological evaluation. The Order of Disposition (together with an accompanying Order of Adjudication) approved B.D.'s Case Plan in which respondent Department of Children and Families ("Department") required B.D. to submit to a mental health examination. We treat B.D.'s petition as an appeal and, because the record reflects that the trial court failed to follow the required procedures of Florida Rule of Juvenile Procedure 8.250(b), we reverse that portion of the Order of Disposition that required B.D. to submit to the mental health evaluation.
I. Relevant Background
B.D. is the mother of two children, Y.D.V., age twelve and a half at the time of the proceedings below, and Y.M.D., age one and a half. In July 2023, Y.M.D.'s father was caught sexually assaulting Y.D.V. (who is not his child) and was arrested. His sexual assault of Y.D.V. was not the first time this occurred. In October 2023, B.D. and Y.D.V. had a fight. Y.D.V. suffered physical injury - bruising, cuts, neck pain, and missing hair. Y.D.V. also suffered some degree of mental injury because, among other things, her mother accused her of causing the sexual assault, called her a "whore," and caused Y.D.V. to be ostracized by the rest of the family. B.D. was arrested for child abuse.
B.D. claims that she did not make this accusation, but that it reflects Y.D.V.'s own thinking about the sexual assaults.
After a January 8, 2024 hearing and pursuant to section 39.501 of the Florida Statutes, the trial court, on February 7, 2024, adjudicated the two children dependent. They moved to foster care. Y.D.V. has begun to receive weekly therapy and has expressed a desire not to return to her mother's care. In the Order of Adjudication, B.D. consented to the finding of dependency and consented to a finding that she "is in need of services to increase her caregiver protective capacities."
On January 25, 2024, the trial court conducted a hearing on the Case Plan for B.D. and her children. The Case Plan reflected among its outcomes that B.D. would submit to a "psychological evaluation" to determine whether B.D.'s mental health was putting her children at risk.
In its February 2, 2024 Order of Disposition, the trial court approved the Case Plan, as well as the more detailed Family Functioning Assessment Plan and the children's placement in foster care. The Order of Disposition notes that the trial court's acceptance of the Case Plan's "Psychological Evaluation" is "over the objection of (B.D.'s) Counsel." B.D. filed a February 5, 2024 motion for rehearing challenging that portion of the Order of Disposition requiring B.D. to submit to a mental health examination. B.D. asserted, as she does in this Court, that the examination was ordered without the required good cause showing, that her mental health was not in controversy, and that the trial court failed to follow the procedural requisites of rule 8.250(b). B.D.'s rehearing motion was deemed denied after the trial court did not rule on it within ten days of its filing. Fla. R. Juv. P. 8.265(b)(3). B.D. then timely filed her certiorari petition seeking to quash that portion of the order requiring B.D. to submit to a mental health examination.
II. Analysis
A. Jurisdictional Issue
We first address the question of this Court's certiorari jurisdiction to adjudicate B.D.'s petition. B.D. seeks to invoke the Court's certiorari jurisdiction because she views the mental health examination order as a nonfinal order. Generally, for this Court to grant certiorari relief, we must determine both that (a) the challenged order represents a departure from the essential requirements of law, and (b) the order results in material injury for the remainder of the case that cannot be remedied on appeal. A.H. v. Dep't of Child. &Fams., 277 So.3d 704, 707 (Fla. 3d DCA 2019). The irreparable injury prong is jurisdictional, and we do not review the merits of a challenged order unless we first determine that the order has resulted in harm that cannot be remedied on appeal. Id.; see also Damsky v. Univ. of Miami, 152 So.3d 789, 792 (Fla. 3d DCA 2014).
The Order of Disposition, which includes the challenged requirement that B.D. undergo a mental health examination pursuant to section 39.407(1) of the Florida Statutes and rule 8.250(b), however, is a final order, subject to appellate review under Florida Rule of Appellate Procedure 9.030(b)(1)(A). See A.G. v. Dep't of Child. & Fam. Servs., 731 So.2d 1260, 1261-62 (Fla. 1999) (recognizing that adjudicatory and disposition orders in dependency cases are final for appellate purposes); E.P.V. v. Dep't of Child. & Fams., 278 So.3d 749, 750 n.1 (Fla. 3d DCA 2019) (determining that this Court has appellate jurisdiction to review a disposition order requiring the mother to submit to a mental health examination as part of her case plan); M.P. v. Dep't of Child. &Fams., 159 So.3d 341, 343 n.1 (Fla. 4th DCA 2015) (concluding that the Court has appellate jurisdiction under rule 9.030(b)(1)(A) to review that aspect of a disposition order requiring the father to submit to random drug screens as part of his case plan).
We therefore treat B.D.'s certiorari petition as an appeal, and review under an appellate standard that portion of the Disposition Order compelling B.D. to submit to a mental health examination. See Fla. R. App. P. 9.040(c) ("If a party seeks an improper remedy, the cause must be treated as if the proper remedy had been sought; provided that it will not be the responsibility of the court to seek the proper remedy.").
There is support in the law for District Court certiorari review of a case plan task within a disposition order. For example, this Court employed certiorari review of a mental health examination order where the order expressly "provide[d] for the opportunity to challenge any findings and recommendations in court before the mother may be required to comply with them." B.R. v. Dep't of Child. & Fams., 315 So.3d 80, 81 n.1 (Fla. 3d DCA 2020).
B. Section 39.407(15) and Rule 8.250(b)
Section 39.407(15) of the Florida Statutes expressly authorizes a trial court in a dependency proceeding to order a mental health examination of a parent requesting custody of a child. Pursuant to the statute, however, such an order can be entered only upon a showing of good cause and "pursuant to notice and procedures as set forth by the Florida Rules of Juvenile Procedure."
Section 39.407(15) reads, in its entirety, as follows:
At any time after the filing of a shelter petition or petition for dependency, when the mental or physical condition, including the blood group, of a parent, caregiver, legal custodian, or other person who has custody or is requesting custody of a child is in controversy, the court may order the person to submit to a physical or mental examination by a qualified professional. The order may be made only upon good cause shown and pursuant to notice and procedures as set forth by the Florida Rules of Juvenile Procedure.§ 39.407(15), Fla. Stat. (2024).
To implement section 39.407(15), the Florida Supreme Court adopted rule 8.250(b), which sets forth the notice and procedural requirements that must occur for the dependency court to enter such an order. Rule 8.250(b) contains five subsections: subsection (1), which is not relevant to this appeal, governs mental health examinations in the pre-dependency context when requested by a party, while subsection (2) provides the procedural mechanism for those situations, such as this one, when the request for a mental health examination occurs after a dependency adjudication.Subsection (3), outlining the notice requirement and what the order must specify, applies to both pre- and post-dependency adjudications, and reads as follows:
Rule 8.250(b)(2)(A) reads as follows:
Physical or Mental Examination. After a dependency adjudication, the court, on request of any party, may require the person who has custody or who is requesting custody of the child to submit to a physical or mental health examination. The order may be made only on good cause shown. The mental health examination must be administered by a qualified professional as defined by law. The court may also require such person to participate in and comply with treatment and services identified as necessary, including, when appropriate and available, participation in and compliance with a mental health court program established by law.Fla. R. Juv. P. 8.250(b)(2)(A).
Notice. The order may be made only after notice to the person to be examined, assessed, or evaluated, and to all parties and must specify the time, place, manner, conditions, and scope of the
examination, assessment, or evaluation and the person or persons by whom it is to be made.Fla. R. Juv. P. 8.250(b)(3).
Subsection (4), inter alia, contains an additional notice requirement, providing that a motion - made by either a party or the court - seeking to compel a mental health examination must notify the person potentially subject to the examination of that person's right to seek a hearing to have the motion quashed. Rule 8.250(b)(4) reads as follows:
Hearing to Quash. The person whose examination, assessment, or evaluation is requested may request a hearing seeking to quash the request after receiving notice of the request. Any written or oral motion must advise the person whose examination, assessment, or evaluation is sought of the person's right to request a hearing seeking to quash the request.Fla. R. Juv. P. 8.250(b)(4).
Subsection (5) authorizes the dependency court, on its own motion and after providing subsection (3)'s notice, to order a mental health examination.
Rule 8.250(b)(5) reads as follows:
Court's Own Motion. The court may, on its own motion and after notice, order a parent, legal custodian, or other person who has custody or is requesting custody to undergo a physical or mental examination or a substance abuse evaluation or assessment, treatment, or counseling activities as authorized by law and this rule.Fla. R. Juv. P. 8.250(b)(5).
While ordinarily we would review an order requiring a party to submit to a mental health examination for an abuse of discretion, E.P.V., 278 So.3d at 750, we review the record de novo to determine whether there has been a deprivation of procedural due process. Pena v. Rodriguez, 273 So.3d 237, 240 (Fla. 3d DCA 2019).
B.D. asserts two arguments as to why that portion of the challenged order requiring her to submit to a mental health examination should be reversed: (1) there has been no good cause shown; and (2) the trial court denied B.D. due process by its failure to comply with the requisites of rule 8.250(b). Because we find merit in B.D.'s due process argument, we reverse on that ground and do not reach, nor express any opinion regarding, B.D.'s argument that Department failed to establish that B.D.'s mental health was in controversy and that good cause supported the challenged order.
While section 39.407(15) authorizes a dependency court to require a party to submit to a mental health examination, this statute, as mentioned above, expressly requires the trial court to comply with rule 8.250(b)'s procedural requisites. § 39.407(15), Fla. Stat. (2024). Rule 8.250(b)(3) requires that, prior to the entry of any order requiring a party to submit to a mental health examination, notice to the party must be provided. This rule also provides that the order "must specify the time, place, manner, conditions, and scope of the examination, assessment, or evaluation and the person or persons by whom it is to be made." Fla. R. Juv. P. 8.250(b)(3). Additionally, rule 8.250(b)(4) requires that any written or oral motion seeking an order requiring a party to submit to a mental health examination must advise the party of a right to have the motion quashed.
The record reveals that B.D. was not provided with the notice required under either rule 8.250(b)(3) or (4), nor did the challenged order specify the time, place, manner, conditions, and scope of the examination, and who was to perform the examination, as required by rule 8.250(b)(3). We therefore are compelled to reverse that portion of the challenged order requiring B.D. to submit to a mental health examination. Our reversal is without prejudice to the trial court, consistent with rule 8.250, entering an order requiring B.D. to submit to a mental health examination upon proper motion and with proper notice and with a proper showing.
Conceding that the challenged order here failed to comply with the requisites of rule 8.250(b)(3), co-respondent Guardian ad Litem suggests that we deny B.D.'s petition in part and follow the example of our sister court in K.K. v. Department of .Children & Families, 86 So.3d 1193, 1193-94 (Fla. 2d DCA 2012), by ordering a limited remand to allow the trial court to enter an order that complies with rule 8.250(b)(3)'s mandate that the order specify the time, place, manner, conditions and scope of the examination and the person by whom the examination is to be made. We decline this suggestion because, not only does the trial court's order fail to comport with the requirements of rule 8.250(b)(3), but the record in this case reflects also that the notice required by rule 8.250(b)(3),(4) was not provided to B.D, a fact not present in the K.K. opinion.
Petition treated as appeal; that portion of the Order of Disposition compelling B.D. to sit for a mental health examination reversed.