In the Interest of T.C., J.A., and I.E., children.
DEPARTMENT OF CHILDREN AND FAMILIES and GUARDIAN AD LITEM PROGRAM, Respondents. A.R., Petitioner,
FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
for Writ of Certiorari to the Circuit Court for Charlotte
County; Leigh Frizzell Hayes, Judge.
Kathryn E. Pugh, Fort Myers, for Petitioner.
Meredith K. Hall, Appellate Counsel Children's Legal
Services, Bradenton, for Respondent Department of Children
Goldfarb, Sanford, for Respondent Guardian ad Litem Program.
seeks certiorari review of the trial court's order in
this dependency proceeding that placed two of her children,
I.E. and T.C., in a permanent guardianship with their
paternal grandparents and gave the father permanent custody
of J.A., with the intent to terminate the Department of
Children and Families' (the Department) jurisdiction and
supervision. We have jurisdiction. See M.M. v. Fla.
Dep't of Children & Families, 189 So.3d 134, 141
(Fla. 2016). We grant the petition and quash the order
because it departs from the essential requirements of the law
causing irreparable injury to A.R. that cannot be remedied on
appeal. Id. at 138 (quoting Keck v.
Eminsor, 104 So.3d 359, 364 (Fla. 2012)).
Department's case plan sought to change the permanency
goals from reunification to permanent guardianships for two
children and to permanent custody of J.A. to his father. That
case plan was filed less than twenty-four hours prior to the
judicial review hearing. A.R. was not informed prior to the
judicial review that the Department and the Guardian ad Litem
Program would seek to change the permanency goals. There is
no indication that A.R. was notified that an evidentiary
hearing would be conducted at the judicial review.
only did this failure run afoul of the statutory
requirements, it also denied A.R. procedural due process to
present witnesses and cross-examine the Department's and
the Guardian ad Litem Program's witnesses. See,
e.g., § 39.6011(7), Fla. Stat. (2016) ("The
case plan must be filed with the court and copies provided to
all parties . . . not less than 3 business days before the
disposition hearing."); § 39.602(4)(a) (requiring
that the parent must be provided with the Department's
case plan at least seventy-two hours before the hearing on
court's approval); § 39.621(3)(a) ("At least 3
business days before the permanency hearing, the [D]epartment
shall file its judicial review social services report with
the court and serve copies of the report on all
parties"); § 39.701(2)(b)(1) (requiring that the
parent "must be served" the Department's and
the Guardian ad Litem Program's written reports
seventy-two hours before the judicial review hearing);
see also J.B. v. Dep't of Children & Family
Servs., 130 So.3d 753, 754-57 (Fla. 2d DCA 2014)
(reversing order of permanent guardianship where the day
before the hearing, the Department apparently abandoned the
goal of reunification and decided to seek a permanent
guardianship, but did not file anything before the hearing to
put the trial court or the father on notice, and the hearing
was noticed as a judicial review, not a permanency hearing);
P.P. v. Dep't of Children & Family Servs.,
86 So.3d 556, 559-60 (Fla. 2d DCA 2012) (reversing order of
permanent guardianship where the Department did not properly
notify the mother that the hearing was a permanent
guardianship hearing and the mother was not afforded an
opportunity to present evidence at the evidentiary hearing
prior to the child's placement in permanent
guardianship); cf. A.S. v. Dep't of Children &
Family Servs., 113 So.3d 77, 80 (Fla. 2d DCA 2013)
(holding that if the Department seeks to terminate
jurisdiction and supervision, "procedural due process
requires the court to hold an evidentiary hearing to
determine whether allowing the case to remain pending while
[the offending parent] completes her case plan would be
detrimental to the child's interest, and if so, whether a
preponderance of the evidence supports changing the goal of
her case plan"). The legislature clearly intends for
these statutory requirements to be mandatory, not directory.
See DeGregorio v. Balkwill, 853 So.2d 371, 374 (Fla.
2003) ("Generally, where the word 'shall' refers
to some required action preceding a possible deprivation of a
substantive right, the word is given its literal
meaning." (quoting Stanford v. State, 706 So.2d
900, 902 (Fla. 1st DCA 1998))); Estate of Johnson ex rel.
Johnson v. Badger Acquisition of Tampa, LLC, 983 So.2d
1175, 1181 n.3 (Fla. 2d DCA 2008) ("When interpreting a
statute, 'shall' is generally read as being mandatory
while 'may' suggests a permissive term.").
granted and order quashed.
CASANUEVA, VILLANTI, and ...