Opinion
No. 92-2388.
February 10, 1993.
Appeal from the District Court for Broward County, Kathleen A. Kearney, J.
Patricia B. Wright, Gaste-Azoro, Dept. of Health and Rehabilitative Services, Fort Lauderdale for appellant-Dept. of Health and Rehabilitative Services.
Karen A. Gievers of Karen A. Gievers, P.A., Miami, for appellants-G. Children.
Kim A. Marjenhoff, Fort Lauderdale, for appellee-Natural Mother.
This is a sequel to In the Interest of G., Children, 592 So.2d 778 (Fla. 4th DCA 1992), wherein we reversed two final judgments which terminated the mother's parental rights and permanently committed her two children to the Department of Health and Rehabilitative Services for subsequent adoption. We directed that upon remand the trial court determine if there had been a recovery by the mother from alcoholism, and with the further direction that if the court concluded that she had not made a recovery, it could again enter an appropriate final judgment of termination.
Upon remand and further hearing, the court concluded that the natural mother had made a recovery. Unfortunately, and due perhaps to the failure of our prior opinion to be more explicit, the trial court construed our prior opinion as indicating that the mother's recovery, vel non, was to be entirely dispositive of the case, i.e., if she had not made a recovery, a final judgment of termination should be entered (which we did say), and if she had made a recovery, a final judgment of dismissal should be entered (which we did not say). Perceiving itself thus restricted to consider only the issue of the mother's recovery, the trial court felt that it could not properly consider the question of the children's best interest. It therefore precluded the introduction of any evidence on that issue. The court, having found that the mother had made a recovery, and following what it perceived to be the directions in this court's earlier opinion, entered a judgment dismissing the petition for termination of the mother's parental rights.
We again reverse and remand for further hearing and final disposition after full consideration of the mother's parental rights and the best interest of the children, under the criteria set out in section 39.467 Florida Statutes (1991).
Reversed and remanded.
WARNER, J., concur.
ANSTEAD, J., concurs specially with opinion.
I concur in the majority's remand for a new hearing on the merits, but not for the reasons set out in the majority opinion. Unlike the majority, I believe it was implicit in this court's earlier decision that, assuming the mother's condition had not deteriorated in the meantime, the trial court could not terminate her parental rights under the circumstances existing at the time of the prior final hearing. Accordingly, I do not believe the trial court misinterpreted our prior opinion.
However, as Judge Glickstein noted in his separate opinion in French v. French, 452 So.2d 647 (Fla. 4th DCA 1984), the passage of time since a decision was rendered on a custody issue is an important factor for an appellate court to consider in determining further proceedings in the trial court on remand:
First, I think it inappropriate for this court to enter any determinative order on the issue of visitation in May, 1984, more than two years since the entry of Final Judgment. The children have not been frozen in time, waiting for the square wheels of justice to bump along to a conclusion in the case, although they may have been existing in an emotional vacuum for over two years because of the lengthy period of time in finalizing this matter. As of the present date, there is no evidence whatsoever before us of the present circumstances which could affect their welfare upon the issue of visitation.Id. at 651. The final hearing in this case was completed in September, 1990, almost two and one-half years ago. We cannot simply ignore that passage of time and its possible effects on the important issues before us. For that reason I concur in the remand for a new trial to consider the current circumstances of the parties.