final until disposition of timely filed motion for rehearing.
of Certiorari to the Circuit Court for Miami-Dade County,
Mark Blumstein, Judge. Lower Tribunal No. 17-15145
Perkins, for petitioner.
F. Zenobi, Regional Counsel, Criminal Conflict & Civil
Regional Counsel and Kevin Coyle Colbert, Assistant Regional
Counsel, for the mother; Andrea Newman, for the father.
SUAREZ, C.J., and EMAS and LOGUE, JJ.
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.
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.
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.
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
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.
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.
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 ...