Opinion
No. 1D23-0073
05-23-2023
STATEWIDE GUARDIAN AD LITEM OFFICE, Florida Department of Children and Families, and J.K., Mother of J.J.K., a minor child, Petitioners, v. J.B. and D.B., Respondents.
Sara Elizabeth Goldfarb, Statewide Director of Appeals, and Amanda Victoria Glass, Senior Attorney, Tallahassee, for Petitioner Guardian ad Litem Sarah J. Rumph, Children's Legal Services, Tallahassee, for Petitioner Department of Children and Families Anne Marie Perine, Assistant Regional Conflict Counsel, Tallahassee, for Petitioner J.K., Mother. Richard D. Ogburn, Panama City, for Respondents.
Sara Elizabeth Goldfarb, Statewide Director of Appeals, and Amanda Victoria Glass, Senior Attorney, Tallahassee, for Petitioner Guardian ad Litem
Sarah J. Rumph, Children's Legal Services, Tallahassee, for Petitioner Department of Children and Families
Anne Marie Perine, Assistant Regional Conflict Counsel, Tallahassee, for Petitioner J.K., Mother.
Richard D. Ogburn, Panama City, for Respondents.
Bilbrey, J.
Petitioners seek a writ of certiorari. They wish to quash the trial court's nonfinal order which denied their motion to strike the caregivers’ objection to reunification of the dependent child with the mother and granted the caregivers party status in the proceedings based on section 39.522(3), Florida Statutes (2022). Respondents, as foster parents, are the caregivers of the child. See § 39.01(9), (54), Fla. Stat.
Because the "issue before the court is whether a child should be reunited with a parent," subsection 39.522(4) should have been applied rather than subsection 39.522(3). We have jurisdiction because the trial court's order departs from the essential requirements of law causing irreparable harm for which there is no adequate remedy on appeal. See A.G. v. Fla. Dep't of Child. & Fams. , 65 So. 3d 1180, 1182 (Fla. 1st DCA 2011) (setting forth the standards for a district court to exercise certiorari jurisdiction in a dependency case). Accordingly, we grant the writ of certiorari and quash the order.
Factual Background
The child was sheltered at four months of age, placed in the custody of the Department of Children and Families, and placed by the Department with the current caregivers in 2021. In May 2021, the trial court adjudicated the child dependent and accepted the Department's case plan with a goal of reunification with the mother.
The mother progressed with her case plan and the Department filed its reunification plan in June 2022. An amended case plan extended the mother's deadline for compliance, and the court accepted this plan. In an order on the status review hearing, entered October 4, 2022, the trial court accepted the modified case plan and scheduled the next judicial review/permanency hearing for November 17, 2022.
The multidisciplinary team comprehensive placement assessment was completed on October 24, 2022, and filed by the Department. This assessment reported that the mother had met the conditions for reunification with the child and proposed a schedule for overnight visits with the mother during November 2022, ending with a reunification date of November 22, 2022.
On October 21, 2022, and October 26, 2022, the caregivers filed their objections to "any change of placement" and to the "change in physical custody" which would result from the Department's reunification plan. The caregivers relied on section 39.522(3), Florida Statutes, for their request for party status for the purpose of filing "a motion on the objection" and presenting evidence at an "initial case status hearing." See § 39.522(3)(c) 4.a., Fla. Stat. (requiring the trial court to "[g]rant party status to the current caregiver who is seeking permanent custody and has maintained physical custody of that child for at least 9 continuous months for the limited purpose of filing a motion for a hearing on the objection and presenting evidence pursuant to this subsection"). The caregivers also requested an evidentiary hearing on the placement and best interest of the child within ninety days of their objection. See § 39.522(3)(d), Fla. Stat. They expressed an intent to adopt the child even though the mother's parental rights remained intact, and reunification with the mother was always part of the case plan.
The Statewide Guardian ad Litem Office (GAL) and the Department moved to strike the caregivers’ objections to the "change in physical custody" which would result if the permanency goal of reunification of the mother and child was ordered. The trial court then heard the caregivers’ objections and the motions to strike on November 17, 2022, before proceeding to the scheduled judicial review hearing. After denying the motions to strike the caregivers’ objections, the court granted the caregivers’ request for party status, appointment of counsel for the child, and for an evidentiary hearing under section 39.522(3)(d). The court then denied reunification with the mother at that time, approved a revised visitation schedule for the mother and child, and scheduled the evidentiary hearing for February 2023, about ninety days after the November 2022 hearing. Finally, the trial court granted the caregivers’ attorney access to the confidential trial court record. Analysis
The Appendix was filed before the February 2023 hearing. We have no record of whether the scheduled hearing occurred and if it resulted in any orders relevant to the issue here. A subsequent notice of filing with this court shows that the caregivers’ objection to reunification is now scheduled for hearing on June 12, 2023.
In D.C. v. J.M ., 133 So. 3d 1080 (Fla. 3d DCA 2014), the court granted a writ of certiorari to quash a trial court order granting the foster parents access to the confidential court records. See § 39.0132(3), Fla. Stat. (requiring the clerk of the circuit court to keep the court records separate and confidential). Here, the portion of the trial court's order granting access to the court record was mentioned in the petition and response. But the focus of the petition, as well as our focus, is the portion of the order granting intervention. Any "cat out of the bag" concern about the release of the court record to the caregivers’ attorney is likely moot since there was no motion to stay the trial court's order. Going forward, since we are quashing the order, the caregivers will not have access to the court record. They could again seek it. See id . But a hypothetical future order granting the caregiver's access to the court record may run afoul of the reasoning of D.C .
"A petition for writ of certiorari is appropriate to review an order granting a participant's motion to intervene as a party in a dependency proceeding." Chew v. Roberts , 122 So. 3d 493, 496 (Fla. 5th DCA 2013). An order allowing intervention as a party in a dependency action satisfies the irreparable harm which cannot be remedied on appeal requirement for certiorari jurisdiction because it poses the risk of interference with parental rights and actions by the Department to protect the child while the dependency case is pending. J.P. v. Dep't of Child. & Fam. Servs. , 12 So. 3d 253, 254 (Fla. 2d DCA 2009).
In addition, "time is of the essence for establishing permanency for a child in the dependency system." § 39.0136(1), Fla. Stat.; see also § 39.621(1), Fla. Stat. Courts are "compelled to expedite proceedings to prevent children from languishing in the foster care system." A.W. v. Dep't of Child. & Fams. , 969 So. 2d 496, 505 (Fla. 1st DCA 2007). Orders allowing intervention by non-relative caregivers and allowing the intervenors’ requests for additional proceedings and hearings, if contrary to law, irreparably harm the child's interest in timely permanency when the permanency goal is reunification with a parent and the parent's rights remain intact. See § 39.621(1), Fla. Stat.; J.L. v. G.M ., 687 So. 2d 977 (Fla. 4th DCA 1997).
Because we find the requisite irreparable harm which cannot be remedied on appeal sufficient to exercise certiorari jurisdiction, we turn to whether the trial court's order departed from the essential requirements of law. "We have de novo review of statutory interpretation." State, Dep't of Child. & Fams. v. B.D ., 102 So. 3d 707, 709 (Fla. 1st DCA 2012) (citing B.Y. v. Dep't of Child. & Fams ., 887 So. 2d 1253, 1255 (Fla. 2004) ).
The trial court's order granting the caregivers "party status" under section 39.522(3)(c) 4.a. and granting the caregivers’ request that the court conduct the other procedures required by section 39.522(3)(c)-(d) departed from the essential requirements of law because the court misapplied subsection (3) to these proceedings. Section 39.522(3) as amended and as relied on by the trial court took effect on October 1, 2021. See Ch. 2021-169, § 10, Laws of Fla. It applies when a "change in physical custody" is sought by the Department. § 39.522(3)(a), Fla. Stat. "A change in physical custody" is defined to mean "a change ... to the child's physical residential address, regardless of whether such change requires a court order to change the legal custody of the child." Id .
Section 39.522(3)(c) 1. states, "The department or community-based care lead agency must notify a current caregiver who has been in the physical custody placement for at least 9 consecutive months and who meets all the established criteria in paragraph (b) of an intent to change the physical custody of the child...." (Emphasis added). From the notice requirement in section 39.522(3)(c) 1. springs other caregiver's rights in section 39.522(3)(c) 2.- 4. and (3)(d)-(e), including the provisions in section 39.522(3)(c) 4.a. used by the trial court to grant party status to the caregivers. But paragraph (b) of section 39.522(3) does not apply in this case, so the caregivers should not have been granted party status.
Section 39.522(3)(b) states:
1. In a hearing on the change of physical custody under this section, there shall be a rebuttable presumption that it is in the child's best interest to remain permanently in his or her current physical placement if:
a. The child has been in the same safe and stable placement for 9 consecutive months or more;
b. Reunification is not a permanency option for the child;
c. The caregiver is able, willing, and eligible for consideration as an adoptive parent or permanent custodian for the child;
d. The caregiver is not requesting the change in physical placement; and
e. The change in physical placement being sought is not to reunify the child with his or her parent or sibling or transition the child from a safe and stable nonrelative caregiver to a safe and stable relative caregiver.
The parties agreed that the rebuttable presumption that the child's best interest was to stay in the current placement under section 39.522(3)(b)1. did not apply because reunification with a parent was at issue. To apply the presumption would also ignore the presumption in favor of reunification over other permanency goals under section 39.621(3)(a), Florida Statutes. See M.N. v. Dep't of Child. & Fams. , 120 So. 3d 3, 6 (Fla. 1st DCA 2012) (holding that substantial compliance with reunification plan establishes presumption in favor of reunification). Applying the presumption against a parent seeking reunification with a child could also raise concerns of interfering with a parent's constitutional right to raise a child. See Padgett v. Dep't of Health & Rehab. Servs. , 577 So. 2d 565 (Fla. 1991).
Reunification was always the permanency option for the child here. And the change in physical placement being sought by the Department, supported by the mother and the GAL, was to reunify the mother with her child. So, the requirements in section 39.522(3)(b) 1.b. and (3)(b)1.e. were not met, meaning section 39.522(3)(c) 1.- 4. does not apply. Nevertheless, the trial court applied the other provisions of section 39.522(3)(c) 1.- 4. to grant the caregivers’ requests for "party status," appointment of additional counsel for the child, appointment of another expert, and scheduling of a subsequent evidentiary hearing ninety days after the permanency hearing held in November 2022. The petitioners’ position that the "change in physical custody" subject to the procedures in section 39.522(3) does not include the change in the child's placement upon completion of the permanency goal of reunification with a parent is well-taken.
Furthermore, the amendment to section 39.522(3) did not change the definitions of "party" and "participant" in section 39.01(57) and (58), Florida Statutes. Those terms as defined in the statute and in rule 8.210, Florida Rules of Juvenile Procedure, remain unaltered. Before the amendment of section 39.522(3), an order allowing relatives not "parties" to intervene in a dependency action departed from the essential requirements of law. See Dep't of Child. & Fams. v. S.T. , 353 So. 3d 1246 (Fla. 5th DCA 2022) (granting writ of certiorari and quashing order granting intervention). Since section 39.522(3) is inapplicable here, the correct holding of S.T. remains unaltered.
This application of section 39.522(3)(c) resulted in a delay of the final permanency determination and goal of reunification after the dependency action was pending for over eighteen months and the mother had met her case plan tasks. The purpose of the procedures for objecting to a postdisposition change of custody under section 39.522(3)(c) is not to defeat reunification with a parent and not to avoid the public policy that "time is of the essence for establishing permanency for a child in the dependency system." § 39.0136(1), Fla. Stat.
The trial court's application of section 39.522(3) to order additional participation of the caregivers as temporary parties, appoint additional counsel, and so forth departed from the essential requirements of section 39.522(4) as well. Section 39.522(4) applies "where the issue before the court is whether a child should be reunited with a parent." No status of the caregivers beyond the status as "participant" and no additional evidentiary hearing beyond a scheduled permanency hearing are directed by subsection (4). The caregivers were not deprived of their right to notice and the opportunity to be heard as participants at the permanency hearing held November 17, 2022. See § 39.01(57), Fla. Stat. (defining participant and allowing participants to "be granted leave by the court to be heard without the necessity of filing a motion to intervene"); see also § 39.522(2), Fla. Stat. (allowing a current caregiver to be heard when "a motion alleging a need for a change in ... the placement" is before the court and "any party or the current caregiver denies the need for a change"). Indeed, the caregivers appeared at that hearing with counsel and presented argument to the court.
Conclusion
For these reasons, we grant the petition, issue the writ, and quash the order. See § 39.522(4), Fla. Stat. The respondent caregivers may be heard in opposition to reunification as participants in the dependency action, as provided for by sections 39.01(57) and 39.522(2), Florida Statutes, and rule 8.210(b), Florida Rules of Juvenile Procedure, but not as parties.
PETITION GRANTED; ORDER QUASHED .
Nordby, J., concurs; Tanenbaum, J., concurs with opinion.
Tanenbaum, J., concurring.
The analysis set out in Judge Bilbrey's opinion for the panel is one that, overall, I can join. There is no doubt that the trial court applied the wrong subsection of section 39.522, Florida Statutes. The trial court's order granting "party status" to the caregivers, holding "in abeyance" any question regarding a change in the child's "physical custody," and otherwise allowing the caregivers to disrupt the underlying dependency case finds no authority in Florida law under the circumstances we find here. That order would be authorized only if section 39.522(3) applied. It, however, does not—and cannot—for the reasons set out by Judge Bilbrey. Essentially, reunification remains the goal, so the statute expressly takes off the table the option of giving the caregivers party status (and the procedural disruption that comes with it).
I write separately to explain why we have jurisdiction to reach this post-dependency order in certiorari. Unlike with an appeal, which "is a matter of right" in Florida, "the common law writ of certiorari is an instrument that allows a superior court to direct a lower tribunal to inform it of the events below in a pending case so that the superior court can review the proceedings for regularity." M.M. v. Fla. Dep't of Child. & Fams. , 189 So. 3d 134, 138 (Fla. 2016). Even though the writ no longer is necessary to bring up a trial court's record, a party's ability to petition for the "writ" still serves as a procedural "safety net," providing a mechanism by which to invoke the appellate court's "prerogative to reach down and halt a miscarriage of justice where no other remedy exists ." Broward County v. G.B.V. Int'l, Ltd. , 787 So. 2d 838, 842 (Fla. 2001) (emphasis supplied); see also Gibbs , 82 So. at 619 (explaining that the writ is used "in order that the superior court may determine from the face of the record whether the inferior court has exceeded its jurisdiction, or has not proceeded according to the essential requirements of the law, in cases where no direct appellate proceedings are provided by law " (emphasis supplied)); Hartford Accident & Indem. Co. v. City of Thomasville, Ga. , 100 Fla. 748, 130 So. 7, 9 (1930) (explaining that, historically, certiorari was a "common-law writ ... employed to review proceedings before and after final judgment where there was no adequate remedy at law " (emphasis supplied)).
At common law, the writ itself was simply the legal process by which this court took non-exclusive jurisdiction over the record for review in an ongoing proceeding. Cf. First Nat'l Bank v. Gibbs , 78 Fla. 118, 82 So. 618, 619 (1919) (explaining that the discretionary writ issues "to cause the entire record of the inferior court to be brought up by certified copy for inspection"); Edgerton v. Green Cove Springs , 18 Fla. 528, 529 (1882) (noting the waiver of "issuance of a formal writ of certiorari " and treating "the transcript of the record of the judgment of the Circuit Court ... as a return by that court," such that "the matters are to be reviewed, heard and determined as if said record had been duly and regularly returned under process of certiorari from this court"); Halliday v. Jacksonville & A. Plank Rd. Co. , 6 Fla. 304, 304 (1855) (bringing cause up "by writ of certiorari " and framing the "question presented for our consideration [as] whether this court will entertain jurisdiction of the same"). By operation of our current appellate rules, however, issuance of the writ no longer is necessary to obtain the pertinent parts of the record for immediate review. See William A. Haddad, The Common Law Writ of Certiorari in Florida , 29 U. FLA. L. REV. 207, 208 (1977) (describing earlier "two-stage" certiorari writ procedure, which "changed by the adoption of Supreme Court Rule 28 in 1939"); Fla. R. App. P. 9.100(g) (requiring "an appendix as prescribed by rule 9.220" when "the petition seeks an order directed to a lower tribunal"); Fla. R. App. P. 9.220(a) (stating that the "purpose of an appendix is to permit the parties to prepare and transmit copies of those portions of the record deemed necessary to an understanding of the issues presented"); but cf. id. (i) (stating that the "record shall not be transmitted to the court unless ordered"). These days, when an appellate court says it "grants" the petition, it is more of an anachronistic formality and really means the court is nullifying the interlocutory order that the petition attacks.
The highlighted text in the preceding parentheticals illuminates the extraordinary nature of the relief allowed through the writ, which is reflected in the strict jurisdictional limitation on its use. The writ, of course, does not and cannot operate as a substitute for a direct appeal. See Gibbs , 82 So. at 619 ; see also Brooks v. Owens , 97 So. 2d 693, 695 (Fla. 1957) ("This court will review an interlocutory order in law only under exceptional circumstances."). It is a prerogative writ, meaning it is "discretionary"; it is "intended to fill the interstices between direct appeal and the other prerogative writs." G.B.V. Int'l, Ltd. , 787 So. 2d at 842. To even invoke our certiorari jurisdiction, the petitioner must establish, "as a condition precedent ... that it has suffered an irreparable harm that cannot be remedied on direct appeal." Jaye v. Royal Saxon, Inc. , 720 So. 2d 214, 215 (Fla. 1998) ; see also Kilgore v. Bird , 149 Fla. 570, 6 So. 2d 541, 544 (1942) (describing certiorari as a "discretionary common-law writ" that allows for correction in extraordinary circumstances "in the absence of an adequate remedy by appeal or writ of error or other remedy afforded by law"). In turn, when we receive a petition for certiorari, we typically first question whether our jurisdiction has been properly invoked, and we do so by looking at the harm alleged to stem from the order under attack.
Because it is a jurisdictional question, the threshold inquiry many times will be a categorical one: Does the order we are to review fall into a class of orders that tends to cause harm that cannot be remedied on appeal? A common class consists of those orders with the potential to cause harm of a genie-out-of-the-bottle or cat-out-of-the-bag type. Another, though, includes those orders with the potential to cause procedural harm—that is, harm that flows from disrupting a process designed to protect certain rights. If that disruption persists as a result of the order, the protective capacity of the process will be diminished, and there would be no way to restore the dignity of those protections once a final order gets to us on appeal.
The supreme court has expressed this link between the error and the persistent procedural harm as follows:
It is only in exceptional cases, such as those where the lower court acts without or in excess of jurisdiction, or where the interlocutory order does not conform to the essential requirements of law and may reasonably cause material injury throughout the subsequent proceedings for which the remedy by appeal will be inadequate , that this court will exercise its discretionary power to issue the writ.
Kauffman v. King , 89 So. 2d 24, 26 (Fla. 1956) (emphasis supplied); see also Jacksonville, T. & K.W. Ry. Co. v. Boy , 34 Fla. 389, 16 So. 290, 291 (1894) ("The power of this court to review and quash, on the common-law writ of certiorari, the proceedings of an inferior tribunal, when it proceeds in a cause without jurisdiction, or when its procedure is illegal, or is unknown to the law, or is essentially irregular , is, we think, clear" (emphasis supplied)); id. at 292 (determining that the lower court's action was "essentially irregular," that no appellate proceeding was available to correct the irregularity, and that the action "should not remain to confuse and entangle the record in the cause, as it evidently will"); but cf. Martin-Johnson, Inc. v. Savage , 509 So. 2d 1097, 1100 (Fla. 1987) (determining that a trial court's failure to strike a punitive damages claim does not cause the type of persistent procedural harm that would support certiorari jurisdiction); Chambers v. St. Johns County , 94 Fla. 814, 114 So. 526, 527 (1927) (determining that the " proceedings complained of do not show such vital irregularity with irremediable injury to the petitioners as to justify the issuing of a writ of certiorari" (emphasis supplied)).
This brings me to whether an order alleged to have unlawfully allowed the intervention of non-relatives in an ongoing, post-dependency proceeding—where reunification is on the table as a potential outcome—fits under the inadequate-final-order-appellate-remedy paradigm. Without a doubt, it does because of the persistent procedural harm that can result from that order. Let me explain.
Dependency proceedings are unique because of the interrelated substantial interests involved. See N.S.H. v. Dep't of Child. & Fams. , 843 So. 2d 898, 902 (Fla. 2003) (noting that dependency proceedings are civil proceedings that affect "the substantial interests of the parents and children involved"). Of course, the most important consideration in any chapter 39 proceeding is the health, safety, and welfare of the child involved. See § 39.001(1)(b)1., Fla. Stat. ("The health and safety of the children served shall be of paramount concern."). From this primary consideration springs the State's significant interest in protecting the child from harm; however, that interest is juxtaposed with a parent's "natural God-given legal right to enjoy the custody, fellowship[,] and companionship of his offspring." State ex rel. Sparks v. Reeves , 97 So. 2d 18, 20 (Fla. 1957) ; see Padgett v. Dep't of Health and Rehab. Servs. , 577 So. 2d 565, 568 (Fla. 1991) ("While we are loath to sanction government interference in the sacrosanct parent-child relationship, we are more reluctant still to forsake the welfare of our youth."). These often complimentary—but sometimes competing—interests lead to a process unique to dependency—one by which the State can occupy both an adversarial and non-adversarial position, depending on the circumstances, stage, and evolution of each individual case. Compare § 39.001(1)(b)2., Fla. Stat. ("The [State's] prevention and intervention should engage families in constructive, supportive, and nonadversarial relationships."), with §§ 39.801 – 39.8155, Fla. Stat. (governing proceedings to terminate parental rights); see § 39.001(1)(e), Fla. Stat. (stating that a purpose of chapter 39 is to "preserve and strengthen the child's family ties whenever possible, removing the child from parental custody only when his or her welfare cannot be adequately safeguarded without such removal").
In creating chapter 39, then, the Legislature struck a delicate balance between the personal and significant interests of the child and parent, on the one hand; and the role the State has in protecting children, on the other. See § 39.001(1)(b) 3., Fla. Stat. (advising that the State's "prevention and intervention should intrude as little as possible into the life of the family"). The Legislature accomplished this balance by, for the most part, precluding the intervention of ancillary interests in order to best preserve the integrity of the family and the primacy of the parties’ interests. Compare § 39.01(58), Fla. Stat. (defining "party" as "the parent or parents of the child, the petitioner, the department, the guardian ad litem or the representative of the guardian ad litem program when the program has been appointed, and the child") with § 39.01(57), Fla. Stat. (defining "participant" as "any person who is not a party but who should receive notice of hearings involving the child, including the actual custodian of the child, the foster parents or the legal custodian of the child"). That balance is quite evident in the narrow exception that allows for intervention by a non-relative caregiver only when several very specific criteria are met. See § 39.522(3), Fla. Stat.
For a trial court to allow for outside intervention in a post-dependency proceeding beyond the parameters expressly set by the Legislature for doing so, is to disrupt the procedural balance it struck between state, child, and parental interests. When alleged this way in a petition, the resultant irregularity would present much more than an inconvenience, especially from the perspective of the parent trying to reunite with her child. Unauthorized, adversarial participation in something so sensitive and personal as a post-dependency reunification proceeding necessarily will diminish the proceeding's protective nature. This diminution can result both from the delay that inevitably will ensue and from the intervening party's injection of collateral issues. Given "the fluid nature of child dependency proceedings" and the "pertinent statutory law," an order like we have here may not be final but must be reviewable on a certiorari writ. M.M. , 189 So. 3d at 137 (allowing certiorari review of "post-dependency orders" that "anticipate future modification").
In turn, the petitioner here has sufficiently pleaded certiorari jurisdiction, because the harm from the asserted error indubitably will persist, uncorrected, "throughout the subsequent proceedings for which the remedy by appeal will be inadequate." Kauffman , 89 So. 2d at 26. Given that we have jurisdiction to consider the certiorari petition, quashal of the trial court's order allowing intervention—based on an application of the wrong statutory provision—is the right remedy to correct this "serious irregularity or illegality in procedure." Basnet v. City of Jacksonville , 18 Fla. 523, 527 (1882) ; see also Ivey v. Allstate Ins. Co. , 774 So. 2d 679, 682 (Fla. 2000) ("Instead, we held that the proper inquiry under certiorari review is limited to whether the circuit court afforded procedural due process and whether it applied the correct law."); Kilgore , 6 So. 2d at 544 (noting that in certiorari, a court may correct an order "that is unauthorized or violates the essential requirements of controlling law"); Combs v. State , 436 So. 2d 93, 96 (Fla. 1983) ("The district courts should exercise this discretion only when there has been a violation of a clearly established principle of law resulting in a miscarriage of justice.").