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Clingerman v. J.F. Mother of J.S.

Florida Court of Appeals, Fifth District

June 21, 2019

JESSICA CLINGERMAN AND STEVEN CLINGERMAN, Petitioners,
v.
J.F. MOTHER OF J.S., K.S. FATHER OF J.S., BELINDA HENDRIX, FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES AND GUARDIAN AD LITEM PROGRAM, Respondents.

          Petition for Certiorari Review of Order from the Circuit Court for Volusia County, A. Kathleen McNeilly, Judge.

          Mark F. Baseman, of Felix, Felix & Baseman, Tampa, for Petitioners.

          J.D. Loach, of J.D. Loach, Attorney at Law, Inc., Daytona Beach, for Respondent, J.F.

          Joseph M. Fazio, Office of Criminal Conflict and Civil Regional Counsel, Daytona Beach, for Respondent, K.S.

          Ward L. Metzger, Children's Legal Services, Jacksonville, for Respondent, Florida Department of Children and Families.

          Thomasina F. Moore and Sara Elizabeth Goldfarb, of Guardian ad Litem Office, Tallahassee, Respondent, for Guardian ad Litem Program

         No Appearance for Other Respondent.

          PER CURIAM.

         Jessica and Steven Clingerman, foster parents of J.S. (Child), a minor, petition for a writ of certiorari. They seek to quash an order granting a motion to transfer custody away from them to J.S.'s maternal aunt, Belinda Hendrix, as well as an order striking certain of their filings for lack of standing. Because the trial court departed from the essential requirements of the law when it determined that the Clingermans lacked standing to file a motion for rehearing related to the court's May 6, 2019 change of placement order, we grant the petition. In all other respects, the petition is denied.

         Child was sheltered shortly after birth and immediately placed in foster care with the Clingermans. Child has remained in the Clingermans' care his entire life.[1] In February 2019, the Department of Children and Families filed a petition for involuntary termination of the rights of both natural parents and, soon thereafter, the natural mother moved to change Child's placement from the Clingermans to the maternal aunt. The trial court granted the motion.

         Based, in part, on the fact that they were not provided adequate notice or given an opportunity to be heard at the hearing on the motion for change of placement, the Clingermans moved for rehearing. However, the trial court determined that the Clingermans lacked standing and struck their motion. Because the motion for rehearing sought to assert the Clingermans' clear statutory right to notice and an opportunity to be heard, it was error to strike the motion. See § 39.502(17), Fla. Stat. (2018).

         Section 39.502(17) provides:

The parent or legal custodian of the child, the attorney for the department, the guardian ad litem, the foster or preadoptive parents, and all other parties and participants shall be given reasonable notice of all proceedings and hearings provided for under this part. All foster or preadoptive parents must be provided with at least 72 hours' notice, verbally or in writing, of all proceedings or hearings relating to children in their care or children they are seeking to adopt to ensure the ability to provide input to the court.

(Emphasis added). Applying the plain language of the statute, the Clingermans had a statutory right to seventy-two-hours notice of the hearing underlying the May 6, 2019 change of placement order.[2] As such, they had standing to assert a violation of their right to adequate notice in this case, and the trial court departed from clearly established law when it decided otherwise.[3] We, therefore, quash the order under review striking the motion for rehearing and ...


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