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concluding that while a trial court is required to make fact findings supporting an order of dependency, the statutory provision applicable when a court finds that the child is not dependent directs the trial court to "enter an order so finding and dismissing the case" but certifying a question of great public importance regarding whether findings of fact are required when denying a dependency petition (quoting section 39.409(1), Florida Statutes )
Summary of this case from Guardian Ad Litem Program v. J.W. (In re Interest of K.W.)Opinion
No. 90-1887.
March 6, 1991.
Appeal from the Circuit Court, Indian River County, Joe Wild, J.
Robert E. Senton, Vero Beach, for appellant-Department of Health and Rehabilitative Services.
Wendy I. Young, Vero Beach, for appellee-Vera Dale Nosler.
This is an appeal by the state from an order denying a petition for adjudication of dependency.
Although there is evidence in the record supporting allegations of child abuse, the Department of Health and Rehabilitative Services has not demonstrated an abuse of discretion by the trial court in denying its petition. The state has not demonstrated that the trial court applied an erroneous standard in reaching its decision or that the court erred by denying dependency without making specific findings of fact, other than the finding that the child was not dependent. We note that H.R.S. does not argue that the standard for our review of a final order denying dependency differs from the standard generally applied in reviewing a decision by the fact finder.
A trial court is required to make fact findings supporting an order of dependency. See Fitzpatrick v. Dep't. of Health Rehabilitative Serv., 515 So.2d 319 (Fla. 3d DCA 1987); In the Interest of C.S., 503 So.2d 417 (Fla. 1st DCA 1987); Section 39.409(3), Florida Statutes (1989). Florida Rule of Juvenile Procedure 8.650 provides:
All orders of the court shall be reduced to writing as soon after they are entered as is consistent with orderly procedure and shall contain findings of fact as required by law.
The rule does not specify that it is limited to orders adjudicating dependency. However, section 39.409(1), Florida Statutes, states:
If the court finds that the child named in a petition is not dependent, it shall enter an order so finding and dismissing the case.
We are concerned that the conclusion that additional fact findings are not mandated in an order denying a dependency petition may fail to recognize the state's interest in protecting the welfare of a possibly abused child by depriving the child of the protection afforded by findings of fact. Additionally, we cannot determine whether the supreme court in adopting rule 8.650 intended this disparate treatment as to findings of fact. Therefore, we certify, as an issue of great public importance:
WHETHER FLORIDA RULE OF JUVENILE PROCEDURE 8.650 REQUIRES FINDINGS OF FACT (IN ADDITION TO THE FINDING THAT THE CHILD IS NOT DEPENDENT) IN A TRIAL COURT ORDER DENYING A DEPENDENCY PETITION?
The judgment of the trial court is affirmed.
WARNER, J., concurs.
HERSEY, C.J., dissents with opinion.
I would reverse and remand to require the trial court to make written findings of fact in compliance with rule 8.650, Florida Rules of Juvenile Procedure. The protection of all parties involved requires that we be able, in the course of our review, to focus on the precise factors which prompted the disposition appealed.