Opinion
2D22-3836
07-12-2023
In the Interest of B.P. and M.P., children. D.P., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES and GUARDIAN AD LITEM PROGRAM, Appellees.
Angela B. Wright, Tampa, for Appellant. Bruce Bartlett, State Attorney, and Leslie M. Layne, Assistant State Attorney, Clearwater, for Appellee Department of Children and Families. Sara Elizabeth Goldfarb, Statewide Director of Appeals, and Caitlin E. Burke, Senior Attorney, Appellate Division, Tallahassee; for Appellee Guardian ad Litem Program.
Appeal pursuant to Fla. R. App. P. 9.130 from the Circuit Court for Pasco County; Linda H. Babb, Judge.
Angela B. Wright, Tampa, for Appellant.
Bruce Bartlett, State Attorney, and Leslie M. Layne, Assistant State Attorney, Clearwater, for Appellee Department of Children and Families.
Sara Elizabeth Goldfarb, Statewide Director of Appeals, and Caitlin E. Burke, Senior Attorney, Appellate Division, Tallahassee; for Appellee Guardian ad Litem Program.
PER CURIAM
D.P., the father in the instant dependency proceeding, appeals the trial court's order denying his motion for reunification. We find merit in one of D.P.'s arguments, which we address here. D.P. argues that the trial court's order is a departure from the essential requirements of the law because the court failed to make the requisite written findings under section 39.621(10)(c), Florida Statutes (2022). Because the order denying reunification was entered after dependency but before termination of supervision or jurisdiction, we treat this appeal as a petition for writ of certiorari. See A.W.P. v. Dep't of Child. &Fam. Servs., 10 So.3d 134, 135 (Fla. 2d DCA 2009) (treating appeal from an order entered after dependency adjudication as a petition for writ of certiorari), cited with approval in M.M. v. Fla. Dep't of Child. &Fams., 189 So.3d 134, 139-40 (Fla. 2016); see also M.M., 189 So.3d at 139-40 ("[W]e agree with those district courts [including the Second District] that conclude that an order retaining jurisdiction for the purpose of future modification is not final. Especially in cases involving child dependency, it is crucial to adopt a standard of review that will be less likely to disrupt the process for the children involved. The fluid nature of certiorari review renders it more adapted to problems with post-judgment than appellate review. Rather than attempting to force a non-final, post-dependency order neatly into an appeal, we determine that the more logical approach is to review these non-final orders by certiorari." (citations omitted)).
To obtain certiorari relief, "the petitioner must demonstrate that the trial court departed from the essential requirements of the law, thereby causing irreparable injury which cannot be adequately remedied on appeal following final judgment." Belair v. Drew, 770 So.2d 1164, 1166 (Fla. 2000). "Common law certiorari review is the appropriate avenue of review" of the instant order denying reunification. See S.V. v. Dep't of Child. &Fams., 178 So.3d 421, 422 n.1 (Fla. 3d DCA 2015) (noting that father properly sought certiorari review of the trial court's nonfinal order denying his motion for reunification); J.S. v. Fla. Dep't of Child. &Fams., 75 So.3d 808, 809 n.1 (Fla. 1st DCA 2011) ("The order denying the Mother's motion for reunification was reviewable by certiorari because, although the order finally resolved the issue of custody, it reserved jurisdiction to determine the interrelated issue of visitation.").
A trial 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:
1. The compliance or noncompliance of the parent with the case plan;
2. The circumstances which caused the child's dependency and whether those circumstances have been resolved;
3. The stability and longevity of the child's placement;
4. The preferences of the child, if the child is of sufficient age and understanding to express a preference;
5. The recommendation of the current custodian; and 6. The recommendation of the guardian ad litem, if one has been appointed.§ 39.621(10)(c) (emphasis added). "A finding regarding each of these factors is mandatory and vital to a proper order denying reunification." C.D. v. Dep't of Child. & Fams., 974 So.2d 495, 500 (Fla. 1st DCA 2008).
The Department of Children and Families (the Department) argues that D.P. failed to preserve his objections to the statutory sufficiency of the trial court's findings because he neglected to make this challenge in a motion for rehearing. The Department cites to the family law cases Owens v. Owens, 973 So.2d 1169 (Fla. 1st DCA 2007) (holding that the issue of lack of sufficient findings in the final judgment was not preserved for appellate review where appellant failed to file motion for rehearing), and Simmons v. Simmons, 979 So.2d 1063 (Fla. 1st DCA 2008) (holding that party was required to file motion for rehearing to preserve issue of lack of findings in the final judgment), for the general principle that challenges to a lack of findings must be preserved by a rehearing motion. The Department contends that district courts have applied this general principle of appellate preservation to dependency cases. We do not find merit in this argument.
The Department also argues that the trial court, in denying the motion for reunification, followed the essential requirements of the law. We disagree, as discussed below.
Our court in Engle v. Engle, 277 So.3d 697, 699 (Fla. 2d DCA 2019), disagreed with Owens holding that the failure to make the requisite statutory findings is reversible error and dispenses with the need to file a motion for rehearing for purposes of preservation for appeal. However, following Engle, the Florida Supreme Court amended Family Law Rule of Procedure 12.530(a) (effective August 25, 2022) to require the filing of a motion for rehearing to "challenge the sufficiency of a trial court's findings in the final judgment." (Emphasis added.) The order at issue here is a nonfinal order.
Foremost, both Owens and Simmons were family law cases governed under the Family Law Rules and were appeals from final judgments-not on review by petition for writ of certiorari as in this case. The dependency cases applying the rule in Owens and Simmons were not considered on certiorari review. See, e.g., N.B. v. Dep't Child. &Fams., 288 So.3d 1278, 1278 (Fla. 5th DCA 2020) (holding, on direct appeal, that appellant waived claim that order appealed failed to comply with section 39.621(10)(c) because appellant did not raise the issue in the motion for rehearing (citing C.S.C-D. v. Dep't Child. &Fams., 148 So.3d 849, 849-50 (Fla. 5th DCA 2014))); D.T. v. Dep't Child. &Fams., 54 So.3d 632, 633 (Fla. 1st DCA 2011) (same).
Second, the rules of procedure governing dependency proceedings cannot be reconciled with application of this principle and are, in fact, in direct conflict. Unlike family law cases, proceedings under chapter 39, Florida Statutes, "shall be conducted according to Florida Rules of Juvenile Procedure unless otherwise provided by law." § 39.013(1), Fla. Stat. (2022). While we recognize that Family Law Rule of Procedure 12.530(a) was recently amended to require the filing of a motion for rehearing to preserve challenges to the sufficiency of an order, no such corresponding rule exists under the Florida Rules of Juvenile Procedure. Cf Fla. R. Juv. P. 8.625(b)(1) ("A motion for rehearing may be made and ruled upon immediately after the court announces its judgment." (emphasis added)). For these reasons, we decline to adopt the rule in Owens and Simmons in this dependency proceeding.
Finding no waiver of D.P.'s statutory sufficiency objections, we turn to the merits. "Courts lack the authority to deviate from statutory requirements when determining the placement of a child." L.J.S. v. Fla. Dep't Child. &Fams., 995 So.2d 1151, 1153 (Fla. 1st DCA 2008). A failure to make written findings as to each "best interest" factor constitutes a departure from the essential requirements of law causing irreparable harm, and such an error in a nonfinal order is properly addressed through certiorari. See M.N. v. Dep't of Child. &Fams., 120 So.3d 3, 6 (Fla. 1st DCA 2012) (holding that trial court's findings in nonfinal order denying reunification constituted a departure from the essential requirements of law, without addressing whether reconsideration motion had been filed); S.P. v. Fla. Dep't of Child. &Fam. Servs., 17 So.3d 878, 881 (Fla. 1st DCA 2009) (stating that "S.P.'s strongest argument concerns the adequacy of the findings of fact in the" nonfinal order denying his motion for reunification, without addressing whether reconsideration motion had been filed but denying certiorari relief where the lack of transcript prevented review of that argument).
In the instant case, while the trial court noted in its order that the Department objected to reunification, it did not address the remainder of the requisite statutory findings under section 39.621(10)(c). Such omission constitutes a departure from the essential requirements of law causing irreparable harm. See E.N. v. Dep't of Child. &Fams., 224 So.3d 900, 906 (Fla. 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 section 39.621(10)(c) constituted a departure from the essential requirements of law causing irreparable harm)); cf J.M. v. Dep't of Child. &Fams., 969 So.2d 491, 493-94 (Fla. 5th DCA 2007) (holding that, where, in mother's motion for reunification, "the only non-conclusionary factual allegations made by the mother was that she had completed her individual counseling and that the children were desirous of living with her and the stepfather," and where the mother "made no specific factual allegations that would support a conclusion that the stepfather [with whom the children would also reside] was no longer a threat to harm the children," there was "no error in the trial court's decision to forego an evidentiary hearing" and deny reunification). Because a finding on each of the section 39.621(10)(c) factors "is mandatory and vital to a proper order denying reunification," L.J.S., 995 So.2d at 1153, and because these findings are necessary to determine whether reunification is in a child's best interests, it follows that a failure to make these findings results in irreparable harm to D.P.'s relationship with the child.
Accordingly, because the trial court's order denying reunification did not include the necessary written findings on each of the six "best interest" factors described in section 39.621(10)(c), it departed from the essential requirements of law resulting in irreparable harm. We therefore treat D.P.'s appeal as a petition for writ of certiorari, grant the petition, and quash the order denying D.P.'s motion for reunification.
Petition granted; order quashed.
SILBERMAN, BLACK, and SMITH, JJ., Concur.
Opinion subject to revision prior to official publication.