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Florida Department of Children and Families v. P.I.

Florida Court of Appeals, Third District

May 24, 2017

Florida Department of Children and Families, Petitioner,
P.I., the Mother, and M.H., the Father, Respondents.

         Not final until disposition of timely filed motion for rehearing.

         A Writ of Certiorari to the Circuit Court for Miami-Dade County, Mark Blumstein, Judge. Lower Tribunal No. 17-15145

          Karla Perkins, for petitioner.

          Eugene F. Zenobi, Regional Counsel, Criminal Conflict & Civil Regional Counsel and Kevin Coyle Colbert, Assistant Regional Counsel, for the mother; Andrea Newman, for the father.

          Before SUAREZ, C.J., and EMAS and LOGUE, JJ.

          SUAREZ, C.J.

         The Department of Children and Families ["DCF"] seeks a writ of certiorari to review a non-final order of the circuit court, Juvenile Division, granting supervised visitation to both parents over DCF's objection. We grant the petition, quash the visitation order, and remand for an evidentiary hearing on modification of the "no contact" shelter order, pursuant to proper motion and notice to the parties.

         The youngest child, Z.I., was examined by Child Protective Services and was found with belt buckle marks and bruising consistent with beatings. Following a March 9, 2017 shelter hearing for Z.I. and his three siblings, the court denied both parents' visitation and ordered no contact with the parents based on explicit findings of "egregious physical abuse" (mother) and "failure to protect" (father). The children were placed in the care of a great aunt.

         On March 27, a dependency petition filing hearing was scheduled at which the parents were to be served with the petition for dependency. This was for the purpose of serving the petition to the parents, having them confer with their attorneys, be sure all the information was correct, and to determine if they wished to plead to the petition or try to resolve it at another hearing. The transcript of the hearing shows that the judge acknowledged this was the sole purpose of the hearing, that any denial of the petition was premature as arraignment was set for the following week.

         At this preliminary petition hearing, the attorney for the father asked to discuss visitation. The attorney for the mother joined in that request. The court continued with the petition hearing and then asked, "ok, all right, so what's the issue with visitation?" DCF immediately objected to addressing the issue of visitation because this hearing was merely to serve the dependency petition, the parents had not filed any motion for modification of visitation, and no notice was provided to DCF that visitation would be challenged.

         The trial court allowed the parents' attorneys to argue that they were entitled to visitation because they had not had visitation since the children were sheltered two weeks earlier, and that the next court date on April 3, 2017, one week later, meant yet another week without visitation. Counsel for the parents argued that visitation should have been addressed at the shelter hearing, insisted that their clients had a right to visitation, and asked for supervised visitation. The trial court admitted that he did not have a chance to look at the visitation issue because that court was not prepared to deal with visitation at the petition hearing.

         DCF's counsel continued to object to any modification of visitation from the initial "no contact" order because, 1) DCF had not been noticed by motion that the parents would seek modification of visitation at the petition hearing; 2) the parents' counsel were present at the shelter hearing where DCF presented evidence and probable cause to shelter the children; and 3) the shelter judge did determine the visitation rights of the parents at the shelter hearing. At the end of the petition hearing, the trial court judge granted both parents supervised visitation once a week until therapeutic visitation could be established. DCF seeks to quash that order.

         The record shows that the no-contact shelter order was supported by the Child Protective Services affidavit attesting to the child's injuries, as well as evidence provided by DCF's investigation. Section 39.402(9)(a), Florida Statutes (2016) provides:

At any shelter hearing, the department shall provide to the court a recommendation for scheduled contact between the child and parents, if appropriate. The court shall determine visitation rights absent a clear and convincing showing that visitation is not in the ...

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