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Jenkins v. M.F.

Florida Court of Appeals, Fifth District

September 13, 2019

BARBARA M. JENKINS, ED., SUPERINTENDENT OF ORANGE COUNTY PUBLIC SCHOOLS, Appellant,
v.
M.F., MOTHER O/B/O C.F., A CHILD, ET AL., Appellees.

         NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

          Appeal from the Circuit Court for Orange County, Timothy R. Shea, Judge.

          Nicholas A. Shannin, of Shannin Law Firm, P.A., Orlando, and John C. Palmerini, Orange County School Board, Orlando, for Appellant.

          No Appearance for Appellees.

          HARRIS, J.

         This consolidated appeal arises out of twenty-seven verified habitual truancy petitions filed by Barbara M. Jenkins, Ed.D., the Superintendent of Orange County Public Schools (the "Superintendent"). The Superintendent appeals the trial court's sua sponte dismissal of all twenty-seven truancy petitions and subsequent denial of the Superintendent's motion for rehearing and disqualification of the trial judge. The Superintendent argues that the involuntary dismissals of the petitions denied her procedural due process and relied on an erroneous finding that she was required to be represented by counsel in filing and processing the truancy petitions. We agree on both issues and reverse.

         The Superintendent filed twenty-seven verified habitual truancy petitions for twenty-seven different students. A general magistrate issued an arraignment order in each case, adjudicated each of the students as habitually truant, ordered them to "attend school regularly with no unexcused absences, disciplinary referrals, or tardies," and scheduled review hearings in each case.

         Soon thereafter, and without providing the Superintendent notice or an opportunity to be heard, the trial court sua sponte dismissed each of the twenty-seven petitions and canceled the review hearings that the magistrate previously scheduled. The dismissal orders were based on the judge's belief that someone in court administration "may have been involved" in monitoring truancy matters filed by Orange County Public Schools. Feeling that this involvement could have somehow "tainted" the proceedings, without any notice to the Superintendent or the parents of any of the twenty-seven children who had been adjudicated habitually truant, the trial court dismissed all truancy cases pending in Orange County, ironically relying on "the principles of Due Process enshrined in the Constitution and reinforced by centuries of judicial decisions." In a footnote to each of the twenty-seven dismissal orders, the trial court cited, as an additional ground for dismissal, the "well-settled rule" that truancy petitions must be signed by an attorney, noting that none of the petitions in these cases bore an attorney's signature or bar number.

         The Superintendent timely moved for rehearing and for disqualification of the trial judge in all twenty-seven cases. The motion alleged that the dismissal orders erroneously stated that court personnel could have been involved in the preparation and monitoring of Orange County truancy proceedings. The Superintendent's motion noted the difficulty in responding to these allegations, as the dismissal orders did not identify which member of the administrative staff was involved, when the alleged involvement occurred, or the nature of the involvement.

         The Superintendent's motion attached the affidavit of Shirley Johnson Delgado, senior administrator for student advocacy and attendance and the designee of the Superintendent for truancy matters. The affidavit stated that Delgado filed all truancy petitions on behalf of the Superintendent without input or involvement from the administrative staff of the Ninth Judicial Circuit Court. The affidavit further stated that Delgado and Orange County School Board ("OCSB") staff make the decision to file a truancy petition when all remedial strategies performed by OCSB have failed in encouraging the student to maintain good attendance in school.

         The motion next addressed the footnote to the dismissal orders requiring that a lawyer file a petition for truancy on behalf of OCSB, pointing out that the court's conclusions were contradicted by the plain and unambiguous language of Florida law. Lastly, the motion requested that, if the motion for rehearing was granted, the trial judge be disqualified from hearing the cause. The motion was denied in all twenty-seven cases. This appeal followed, and all twenty-seven cases have been consolidated.

         The Superintendent correctly notes that because truancy cases are rarely the subject of an appeal, there is no body of law developed for review of a trial court's sua sponte dismissal of a properly filed truancy petition. However, because the orders were dismissed with prejudice, this Court reviews them de novo. See Poole v. City of Port Orange, 33 So.3d 739, 740 (Fla. 5th DCA 2010). Additionally, whether a party has been denied procedural process is also reviewed de novo. Natiello v. Winn-Dixie Stores, Inc., 203 So.3d 209, 210 (Fla. 4th DCA 2016). Although there are no cases discussing the procedural due process that should be afforded in relation to dismissal of a truancy petition, it is clear that Florida courts require at least notice and an opportunity to be heard, especially where no party opposes, objects, or raises defenses as to the sufficiency of the petitions. See Lawson v. Frank, 197 So.3d 1269, 1271 (Fla. 2d DCA 2016) (holding that trial court improperly dismissed, sua sponte, complaint where no objection or defense was raised as to sufficiency of the pleading).

         In this case, the Superintendent was denied due process when the trial court entered the dismissal orders without providing notice to any of the parties or an opportunity to be heard. See id.; see also Manzano v. Nicoletti, 15 So.3d 751, 752 (Fla. 3d DCA 2009) ("[W]here a trial court wishes sua sponte to raise the legal sufficiency of the complaint, the court must give the plaintiffs notice and a reasonable opportunity to respond."); Lenoir v. Jones, 979 So.2d 1129, 1130 (Fla. 1st DCA 2008) ("A plaintiff is entitled to both notice and the opportunity to show good cause why process has not been served prior to a trial court's sua sponte dismissal of his or her case."). Moreover, the judge's speculation that the administrative personnel "may" have been involved in the preparation and monitoring of the pending truancy matters is unfounded, as there is no evidence in the record to support this finding. The fact that the dismissal orders failed to explain or provide a specific staff member, time, or date alone requires reversal. See Bird v. Hardrives of Delray, Inc., 644 So.2d 89, 90 (Fla. 4th DCA 1994) (reversing trial court's dismissal with prejudice because there was "patently insufficient factual support" for court's oral dismissal). In fact, not only is there no factual support for the dismissals, the undisputed and uncontradicted evidence-Delgado's affidavit-specifically contradicts the court's findings.

         We are further compelled to address the footnote found in each of the dismissal orders, in which the trial court chastised the Superintendent for failing to "abide by the well-settled rule that a pleading submitted by a corporation or other business, civic or charitable organization must be signed by an attorney." We find that, as argued by the Superintendent, this finding conflicts with the plain and unambiguous language of section 1003.27(3), Florida Statutes (2018). That statutes provides, "The district school superintendent is authorized to file a truancy ...


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