Opinion
Case No. 5D20-2326
04-29-2021
L.B. and D.M., Jr., Parents of O.E.M., a Child, Appellants, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
Helen N. Silva, of Law Office of Helen N. Silva, Sanford, for Appellants. Kelley Schaeffer, of Children's Legal Services, Appellant Counsel, Bradenton, for Appellee, Department of Children and Families. Thomasina F. Moore, Statewide Director of Appeals, and Sara Elizabeth Goldfarb, Senior Attorney, Appellate Division, Statewide Guardian ad Litem Office, Tallahassee, for Guardian ad Litem.
Helen N. Silva, of Law Office of Helen N. Silva, Sanford, for Appellants.
Kelley Schaeffer, of Children's Legal Services, Appellant Counsel, Bradenton, for Appellee, Department of Children and Families.
Thomasina F. Moore, Statewide Director of Appeals, and Sara Elizabeth Goldfarb, Senior Attorney, Appellate Division, Statewide Guardian ad Litem Office, Tallahassee, for Guardian ad Litem.
TRAVER, J.
L.B. and D.M., Jr. (collectively, "the Parents"), the parents of eight-year-old O.E.M. ("the Child"), appeal the reclosure of the Child's post-dependency case. We treat this nonfinal appeal as a petition for writ of certiorari. See Fla. R. App. P. 9.030(b)(2)(a) ; M.M. v. Fla. Dep't of Child. & Fams. , 189 So. 3d 134, 141 (Fla. 2016). Because the trial court did not conduct a necessary evidentiary hearing on the Parents’ request to reunify with the Child, we grant the petition, quash the order reclosing the case, and remand for further proceedings.
This case began in 2015 when the Department of Children and Families ("DCF") removed the Child from the Parents based on allegations of drug abuse and mental illness. In 2016, the trial court placed the Child in a permanent guardianship with his paternal grandparents, terminated DCF supervision, and closed the case. In 2017, the Parents filed a sworn motion to reopen the case and reunify with the Child. They claimed they had completed their original case plan, were drug-free, and had jobs and stable housing. In 2018, the trial court agreed with DCF not to proceed with an evidentiary hearing on the motion to reunify. Instead, the trial court provisionally reopened DCF supervision and appointed a guardian.
In 2019, the trial court began an evidentiary hearing on the motion to reunify, hearing testimony from the Parents and the paternal grandfather. The Parents’ attorney then sought a continuance to complete the hearing, which the trial court allowed, directing the Parents’ attorney to contact the trial court's judicial assistant to coordinate a new date and time. Although the Parents’ attorney wrote a letter to the trial court five months later asking for three more hours of hearing time, it does not appear she took any further action to conclude the evidentiary hearing. Meanwhile, the Parents passed their drug tests and maintained a stable home. Indeed, the trial court reunified L.B. with another of her minor children without objection, and the Child enjoyed visitation with his brother at the Parents’ home.
Counsel addressed the letter to the new trial judge, who had not presided over the evidentiary hearing.
In late 2020, DCF recommended that the trial court terminate supervision, continue the Child's permanent guardianship, and reclose the case. DCF claimed the Parents had not yet set an evidentiary hearing to establish reunification, "which was required by the statute." After hearing testimony from the Child's therapist, and over the Parents’ objection that they wished to have a reunification hearing, the trial court reclosed the case. Nobody informed the trial court that an evidentiary hearing had already begun.
To obtain relief on a petition for a writ of certiorari, the Parents must show that: (1) they suffered an irreparable harm; and (2) the trial court departed from the essential requirements of the law. See Dep't of Child. & Fams. v. L.D. , 840 So. 2d 432, 434 (Fla. 5th DCA 2003). Florida law requires parents whose rights have not been terminated to move to reopen if they seek reunification with their child. See § 39.621(10), Fla. Stat. (2017). Trial courts are then required to hold a hearing on the motion, applying enumerated factors to determine whether reunification is appropriate. Id . § 39.621(10), (11) ; Fla. R. Juv. P. 8.430(b) (2017). A trial court's failure to conduct an evidentiary hearing on a properly filed motion to reunify violates a parent's due process rights, departing from the essential requirements of law and causing irreparable harm that cannot be remedied on direct appeal. See J.G. v. Dep't of Child. & Fams. , 220 So. 3d 555, 556–57 (Fla. 3d DCA 2017) ; A.A. v. Dep't of Child. & Fams. , 147 So. 3d 621, 623 (Fla. 3d DCA 2014) ; cf. J.M. v. Dep't of Child. & Fams. , 969 So. 2d 491, 493 (Fla. 5th DCA 2007) (holding that trial court did not need to hold evidentiary hearing when motion to reopen contained no allegations supporting reunification).
We acknowledge that the Parents’ attorney may have acted with negligible diligence in resetting the evidentiary hearing, but this does not constitute a waiver of the Parents’ statutory and due process rights. Based on the passage of time, we note the possibility that the trial court may find no probative value in the old testimony and may need to start anew. PETITION GRANTED; ORDER QUASHED; REMANDED FOR FURTHER PROCEEDINGS.
WALLIS and NARDELLA, JJ., concur.