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State, Department of Children and Families v. M.A.

Florida Court of Appeals, First District

April 10, 2017

STATE OF FLORIDA, DEPARTMENT OF CHILDREN AND FAMILIES, Appellant,
v.
M.A., Father of M.R.A. and C.A., minor children, Appellee.

         NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

         An appeal from the Circuit Court for Dixie County. Jennifer J. Ellison, Judge.

          Ward L. Metzger, Appellate Counsel, Department of Children and Families, Jacksonville, for Appellant.

          Heidi P. Kemph, Alachua, for Appellee.

          BILBREY, J.

         The Florida Department of Children and Families appeals the circuit court's second amended order dismissing dependency proceedings. The Department claims error based on the lack of compliance with the Interstate Compact on the Placement of Children (ICPC) as required by section 409.401, Florida Statutes, and the lack of a home study of the father's residence in Indiana. See §§ 39.521(3)(b), 39.522(1), Fla. Stat. (2016). We agree with the Department, and hold that however well intentioned, the circuit court committed error in dismissing the dependency proceedings and thereby making a de facto placement with the out-of-state father. The order dismissing the dependency proceeding is reversed and this matter remanded for further proceedings.

         Upon the Department's dependency shelter petition, the circuit court entered its shelter order for four children on August 11, 2015. See § 39.401, Fla. Stat.; Fla. R. Juv. P. 8.655. The proceedings were based on an incident of domestic violence in the home where the children lived with their mother and the father of the youngest child. The children were placed with their maternal grandmother, under the protective custody of the Department. M.A., the father of two of the children, was incarcerated in North Carolina at the time, had not lived with the children recently, and was not involved in the incident resulting in the shelter of the children. Although M.A.'s location was referenced in the pleadings and order, he was not served and the Department represented that he was not noticed of the proceedings due to his incarceration.

         The Department filed a petition for dependency proceedings for all four children on August 20, 2015. M.A. was released by the State of North Carolina on September 12, 2015, and was unaware of the status of his children at that point. The court adjudicated the children dependent, by order entered October 8, 2015, and on October 16, 2015, a case plan was filed by the Department, establishing tasks for the mother and the father of the youngest child. M.A. was not a party to the case plan, not assigned any tasks, and not served or copied with the Plan.

         M.A. sought information from the clerk of courts and contacted or was contacted by a representative of the community based care provider, and thus became aware of the dependency proceedings involving his two children. The court appointed counsel for M.A. on November 20, 2015, and counsel requested and obtained discovery of the case file. Through counsel, M.A. filed a motion to modify visitation on December 11, 2015, and requested an order directing the Department to seek a home study of his residence pursuant to section 409.401, Florida Statutes, the ICPC.

         The court heard M.A.'s motion on December 18, 2015. Counsel for M.A. was present and M.A. appeared by telephone. The court found that M.A. acknowledged paternity of M.R.A. and C.A., and that the mother had previously testified that M.A. was the father of these children. Accordingly, the court held that M.A. was established as the father of M.R.A and C.A. In addition, the court found that upon discovering the dependency action, M.A. denied the allegations in the Department's petition and requested an adjudicatory hearing. Finally, the court ordered the Department to seek an ICPC home study on M.A.'s home, as M.A. had requested. See § 409.401, Fla. Stat.

         The children remained in their placement with their maternal grandmother in Florida while the Department pursued an ICPC home study for M.A.'s home in Indiana. The Department amended its petition for dependency to remove the allegations against M.A.[1] but did not amend the case plan to impose any tasks for M.A. The Department consistently alleged in the subsequent filings that it recommended placement of M.A.'s children in Indiana and the court consistently ordered that the Department was authorized to place M.R.A. and C.A. with their father "upon an approved ICPC home study."

         Upon M.A.'s motion, the court allowed M.R.A. and C.A. to spend the summer of 2016 with M.A. in Indiana, and by all accounts the extended visit went well. Over the summer, the Indiana Department of Child Services denied the ICPC approval because M.A. failed to return the required paperwork to the correct office. M.A.'s children returned to their grandmother's home after the summer visit and started the school year in Florida.

         After finding that the mother failed to make any progress with her case plan within the one-year time frame for permanency, the circuit court directed the Department to file a petition to terminate the mother's parental rights. In September 2016, rather than going forward with the termination of parental rights, the court entered its order placing the two children not fathered by M.A. into permanent guardianship with the maternal grandmother. See § 39.6221, Fla. Stat. M.A.'s children remained under the protective supervision of the Department, in a temporary placement with their grandmother.

         The Department initiated a second attempt to obtain the ICPC home study and approval from Indiana officials, to no avail. By letter dated October 24, 2016, the Indiana Department of Child Services informed M.A. that the case worker had observed his home "and noted that there were six beds in the home, smoke detectors, fire extinguisher in the kitchen and the home had working utilities and was appropriately clean." However, the lack of paperwork and M.A.'s ...


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