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Third Circuit
M.M. v. Department of Children and Family Services, 2015 WL 4077501 (Fla. 3rd DCA)
Father sought review of an order terminating the Department of Children and Families' (Department) supervision of the children. The Third District Court of Appeal (Third DCA) granted the petition only as to the portion of the order that limited father's future visitation with the children.
The trial court terminated supervision of the children based on the children achieving permanency with their mother. The trial court also denied father visitation based upon evidence that the children were in fear of their father and would suffer serious mental distress from any contact. Although the Third DCA found ample evidence to support a denial of visitation at the time of trial, the Third DCA found that the trial court erred in restricting decisions regarding future visitation solely to the children's discretion. Citing
Florida Statute § 39.621, the Third DCA held that the trial court has a duty to consider any future motion for modification or increased visitation.
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S.V. v. Department of Children and Families, 2015 WL 4095258 (Fla. 3rd DCA)
Father petitioned for writ of certiorari regarding a review of a trial court order that set aside a magistrate's recommendation for reunification and denied Father's motion for reunification. The The Third District Court of Appeal (Third DCA) denied Father's petition
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Citing
Cerase v. Dewhurst, 935 So. 2d 575 (Fla. 3d DCA 2006), the Third DCA noted that when a trial court reviews the recommendations of a magistrate, the trial court takes on the role of an appellate court. The trial court's review of such recommendations is limited to determining whether the findings of fact are supported by competent evidence and whether the magistrate made clearly erroneous legal conclusions or misconceived the legal effect of the evidence. The Third DCA's certiorari review is limited to whether the trial court departed from the "essential requirements of the law in conducting its review," which resulted in irreparable harm that cannot be remedied by direct appeal.
In the instant case, because the facts were undisputed, the trial court focused its review on the whether the magistrate misconceived the legal effect of the evidence. In a "painstakingly analyzed" sixteen-page order, the trial court concluded that the magistrate misapplied the law. The Third DCA distinguished Cerasa, where the Third DCA reversed the trial court finding that the trial court incorrectly reweighed the evidence. In Cerase, the Third DCA exercised appellate review rather than certiorari review. The Third DCA also found that the trial court in the instant case applied the correct legal standards when it rejected the magistrate's recommendation based on the magistrate misconceiving the legal effect of the evidence. In Cerasa, the trial court solely substituted its judgment for that of the magistrate.
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In re K.B.L.V., 2015 WL 4268740 (Fla. 3rd DCA)
K.B.L.V. appealed dismissal of his private petition for dependency based upon abandonment. The Third District Court of Appeal (Third DCA) affirmed.
K.B.L.V. was seventeen years old when he filed a private petition for dependency. At the time, he was living with his mother in Florida. It was undisputed that his father abandoned him in Honduras. His father never exercised his parental rights, established a relationship or provided support. In September 2013, K.B.L.V. moved to the United States and reunited with his mother. A finding of dependency would allow K.B.L.V. to apply for Special Immigrant Juvenile Status (SIJS) and ultimately apply for lawful permanent residency.
The trial court found that Father's abandonment (in 2003) was too remote in time and that K.B.L.V was living with his mother, an appropriate caregiver. K.B.L.V. argued that there is no remoteness in time limitation to abandonment in the law and that failure to find him dependent would place him at risk of deportation and further abandonment and neglect.
The Third DCA focused its decision on the purpose of Florida's dependency statutes. The purpose of Chapter 39 of the Florida Statutes is " . . . to ensure secure and safe custody . . . and to prevent the occurrence of child abuse, neglect and abandonment." A dependent child is defined as a child that has "been abandoned abused or neglected by the child's parent, parents or legal custodian" or a child who is "at substantial risk of imminent abuse, abandonment or neglect by the parent or parents or legal custodians."
§ 39.01(15), Fla. Stat. (2014). Although there is nothing in the statue that limits abuse or neglect to a specific distance in time, case law support that incidents of abuse too remote in time without a continuing threat of harm, do not support a finding of dependency.
In re K.V., 939 So. 2d 200, 202 (Fla. 2d DCA 2006);
B.C. v. Dep't of Children and Families, 846 So. 2d 1273, 1274 (Fla. 4th DCA 2003).
K.B.L.V. was safe and secure in his mother's care. There was no continuing risk of abuse or neglect by either parent. The only risk to K.B.L.V. was that of deportation, which is by itself is an "invalid basis upon which to qualify" for a finding of dependency.
In re B.Y.G.M., 2015 WL 4268719 (Fla. 3rd DCA)
B.Y.G.M. appealed dismissal of her private petition for dependency on the basis of abandonment and neglect by her father. The Third District Court of Appeal (Third DCA) affirmed.
B.Y.G.M. was abandoned by her father when she was eight months old in El Salvador. She lived with her grandparents until she fled to the United States to live with her mother in 2014. She was seventeen years old when she filed the petition. B.Y.G.M. was safe and secure in her mother's care; there was no risk of imminent abuse, abandonment or neglect; and the purpose of B.Y.G.M.'s petition was to secure Special Juvenile Immigration Status. The Third DCA conducted a similar analysis as it did in K.B.L.V. and agreed with the trial court's conclusion that B.Y.G.M. was not a dependent child.
Justice Shepherd filed a concurrence, which he wrote "only to point out the troubling fact that the Florida Department of Children and Families (Department) has elected not to participate in these proceedings." He explained that although the Department has a history of not challenging cases involving an adjudication of dependency prior to seeking legal immigration status, the Department is responsible for protecting children and families, for the administration of Chapter § 39 of the Florida Statutes and should have "a keen interest" in both the outcome of the case and how the Third DCA interprets the law. By not participating, Justice Shepherd finds the Department "shirks its duty" to the court and "endangers its own credibility."
Justice Shepherd concludes finding that "[t]hese cases are immigration cases, pure and simple." The Third DCA cannot find B.Y.G.M. dependent solely for the purpose of obtaining a legal immigration status.
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