Opinion
No. X-39.
August 26, 1975. Rehearing Denied October 22, 1975.
Appeal from the Circuit Court for Alachua County, R.A. Green, Jr., J.
Duane N. Ivester, Chester G. Senf, and Eve Dunkerley Peck, Jacksonville, for appellants.
Robert L. Shevin, Atty. Gen., Richard W. Prospect, Asst. Atty. Gen., and Don Peters, Special Public Defender, for appellee.
This case involves an issue very similar to that resolved by us in Division of Family Services v. State of Florida, Fla.App., 319 So.2d 72, 1975. The facts too are similar though a different group of children are involved.
On August 21, 1974, the Juvenile Department of the Circuit Court of Alachua County entered an order placing five allegedly dependent children in the custody of the Division of Family Services and specified that all five children be placed in the same foster home. The children were initially placed in accordance with that order, but were thereafter separated and placed in the homes of separate and different foster parents. On September 20, 1974 the children were adjudicated dependent and placed in the temporary custody of the Division of Family Services with the same placement restrictions. The order stated: "That for consistency's sake with the same provisions, the children shall be placed in the same foster home. Custody is reserved to the court to the extent of implementing that order." On September 24, 1974 the court entered another order permitting certain of the children to be separated from the others. Three children were ordered to be placed together in the same foster home and the other two in another foster home, the order providing that upon a showing of necessity the children could be further divided and separated. On October 4, 1974 a final order of disposition was entered incorporating the provisions of the previous order.
The Division of Family Services maintains by this appeal that the trial court exceeded its authority and jurisdiction when it granted custody to the Division but restricted the Division's choice of where and with whom the children would live by specifying the manner in which the children could be placed together or separated in foster homes. The Division of Family Services further maintains that the trial court erred when it granted custody to the Division while also reserving custody unto itself.
In Division of Family Services v. State of Florida, supra, we carefully restricted our holding to the period that the children were in temporary detention and care pending an adjudicatory hearing. Here, we are faced with the next step in the proceeding.
Upon again examining Chapter 39, Florida Statutes, we conclude that a Circuit Judge, in proceedings under Chapter 39, Florida Statutes, has the discretionary power and authority to impose restrictions, conditions and requirements on custodial detention orders entered following an adjudicatory hearing. Our reasoning in Division of Family Services v. State of Florida, supra, is equally applicable here. In that case the appellant based its statutory claim to exclusive authority on F.S. 39.11(2)(c), which incorporated F.S. 39.01(9). We there held that a careful reading of that provision, in context with the rest of the chapter, clearly reveals that it was the legislative intent to grant the custodial agency discretion, in the absence of a court order to the contrary, in placing the child or children committed to its custody, and that it was not intended that the agency have unfettered discretion nor was it intended that the agency be permitted to flaunt nor ignore specific provisions contained in the custodial order. Sub judice appellant makes the same contention. In addition to our holding in the last above mentioned case, we here observe that the true thrust of F.S. 39.01(9) is the personal exercise of custody. The last sentence requires that a person given custody exercise that custody personally unless the court orders otherwise. An agency, which is a legal organization and not a living person, must exercise its custody through a delegation. The legislature gave the agency the power to make that delegation and determine where and with whom the child should live, meaning the particular institution or foster care facility in which the child should be placed. This facility selection power is all the authority that this statute confers. The lower court did not infringe on that power. It did not order the Division to place the subject children in any particular foster care facility. The Division remained free to place the children anywhere so long as they were placed in the sibling composition as required by the court order. It will be noted that F.S. 39.01(9) refers to a "child" and not to "children". Placing a child obviously involves no consideration of sibling composition. Placing of children does. There are important psychological interests which deserve recognition and protection when children are removed from their parental home as a sibling group. The court's authority to recognize and protect those interests is of paramount importance.
Finding no error, we
Affirm.
MILLS, J., concurs and McCORD, J., concurs specially.
I agree that upon adjudicating the five brothers and sisters to be dependent children and committing them to the Division of Family Services pursuant to Ch. 39, Florida Statutes, the Circuit Court had the power and authority to direct that they all be placed in the same foster home. § 39.02(4), Florida Statutes, provides:
"When jurisdiction of any child shall have been obtained, the court shall retain jurisdiction, unless relinquished by order, until the child reaches twenty-one years of age, . . ."
§ 39.001, Florida Statutes, lists, among other purposes of the chapter, the following:
"(3) To assure that a child removed from the control of the child's parent shall receive care, custody, and discipline as nearly as possible equivalent to that which should have been given to the child by the parent and, in all cases in which a child must be permanently removed from the custody of his parents, that the child be placed in an approved family home and be made a member of the family by adoption;"
* * * * * *
"It is the expressed intent of the legislature that this chapter be liberally interpreted and construed in conformity with its declared purposes."
Keeping a family unit of children together is certainly a desired goal in carrying out the expressed intent of the chapter. Under normal circumstances, they would be raised by a parent as a family group. Should circumstances arise which would render such a restriction detrimental to the children or should it develop that a foster home is not available to take such a large family of children, the trial judge's order could, of course, be modified. I find no unreasonable invasion of the authority of the Division of Family Services by the court's order.