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A.H. v. Department of Children and Families

Florida Court of Appeals, Third District

July 3, 2019

A.H., the Mother, Petitioner,
Department of Children and Families, et al., Respondents.

         Not final until disposition of timely filed motion for rehearing.

          A Writ of Certiorari to the Circuit Court for Miami-Dade County, Lower Tribunal No. 16-15849 Dawn Denaro, Judge.

          Eugene F. Zenobi, Criminal Conflict and Civil Regional Counsel, Third Region, and Kevin Coyle Colbert, Assistant Regional Counsel, for petitioner.

          Karla Perkins, for Department of Children and Families; Thomasina F. Moore and Laura J. Lee (Tallahassee), for Guardian ad Litem Program, for respondents.

          Before SALTER, MILLER, and GORDO, JJ.

          MILLER, J.

         Petitioner, A.H., the mother, seeks certiorari review of the trial court's orders placing her daughter, nine-year-old M.H., in the custody of two adult caregivers, not approved to serve as foster parents ("the house parents").[1] As prior to the placement, the Department of Children and Families ("the Department") failed to present the trial court with a completed home study report, as required by section 39.522(1), Florida Statutes (2019), we grant the petition.

         Following a shelter hearing, M.H. was adjudicated dependent and placed in a residential child care facility, otherwise referred to as a group foster home. The house parents were assigned to oversee the children residing at the facility. During her tenure at the home, M.H. disclosed that she witnessed a child attempt to commit suicide. The home was scheduled for immediate closure as the license was not renewed. On the eve of the projected shuttering of the home, an emergency motion to relocate the child was filed in the lower tribunal. The following day, the trial court conducted a hearing on the motion. The mother appeared telephonically and was represented by counsel, however, due to the immediacy of the scheduling and the resultant short notice, she was unable to prepare and present witnesses.

         During the course of the hearing, the mother expressed concern regarding the safety of M.H., premised upon the belief that the house parents had perpetrated abuse upon other children and neglected M.H. [2] The court pressed the issue and the house parents proffered that they had adopted two children in Virginia and were actively seeking to effect a third adoption. Notwithstanding the desire to further adopt, the house parents were contemplating "dissolving" the adoption of one of the prior adoptees. According to the house parents, the subject of the proposed dissolution suffered from attachment disorder and was engaged in self-harming behaviors.

         The Department disclosed that the house parents had been accused, but cleared, of various acts of physical abuse, including restraining a child in a canine collar, catapulting a child against a wall, and inflicting deep scratches on the arm of a child. The mother alleged that while in the group foster home, M.H.'s hygiene and dental needs were left unattended, resulting in tooth decay, as evidenced by photographic documentation. Additionally, the house parents had not yet passed the rigors of a home study or equivalent requirements imposed by federal law.[3] The lower tribunal granted temporary emergency custody, termed "visitation" in its order, to the house parents, and entered a second order granting nonrelative overnight visitation. The instant petition ensued.

         "Certiorari is an extraordinary remedy that is available only in limited circumstances." Charles v. State, 193 So.3d 31, 32 (Fla. 3d DCA 2016). Certiorari review is warranted when a nonfinal order: (1) cannot be remedied on postjudgment appeal, (2) results in material injury for the remainder of the case, and (3) departs from the essential requirements of law. Fernandez-Andrew v. Fla. Peninsula Ins. Co., 208 So.3d 835, 837 (Fla. 3d DCA 2017) (citations omitted). The first two prongs are jurisdictional and must be established by the petitioner "before this court has power to determine whether the order departs from the essential requirements of the law." Chessler v. All Am. Semiconductor, Inc., 225 So.3d 849, 852 (Fla. 3d DCA 2016) (quoting Parkway Bank v. Fort Myers Armature Works, Inc., 658 So.2d 646, 649 (Fla. 2d DCA 1995)).

         As the protection of the health, safety, and well-being of a child is of paramount importance under Florida law, and a custody determination that fails to comport with Florida law poses an immediate threat of irreparable harm to the child, we have jurisdiction. See Mahmood v. Mahmood, 15 So.3d 1, 3 (Fla. 4th DCA 2009) ("A court's failure to apply the statute to protect a child from abuse is reviewable by certiorari, since the situation presents the possibility of irreparable harm to the child."); see also Guardian Ad Litem Program v. R.A., 995 So.2d 1083, 1084 (Fla. 5th DCA 2008) (granting certiorari relief from an order changing placement of a dependent child without following the clear statutory directives). Thus, we confine our analysis to the controlling, unambiguous law governing the out-of-home placement of dependent children.

         Section 39.523(1)(c), Florida Statutes (2019), provides: "that whenever a child is unable to safely remain at home with a parent, the most appropriate available out-of-home placement shall be chosen after an assessment of the child's needs and the availability of caregivers qualified to meet the child's needs." Further, section 39.522(1), Florida Statutes (2019), governing changes of custody effected following an adjudication of dependency, states: "If the child is not placed in foster care, then the new placement for the child must meet the home study criteria and court approval pursuant to this chapter." Finally, section 39.521(2)(o), Florida Statutes (2019), regulating disposition hearings, sets forth the following:[4]

If the child has been removed from the home and will be remaining with a relative, parent, or other adult approved by the court, a home study report concerning the proposed placement shall be provided to the court . . . The department may not place the child or continue the placement of the child in a home under shelter or postdisposition placement if the results of the home study are ...

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