A. R. v. DEPT. OF CHILDREN & FAMILIES

239 So. 3d 1266

• Court: District Court of Appeal of Florida
• Decided: March 16, 2018
• Docket: 17-2815
• Status: Published

Opinion

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT

In the Interest of T.C., J.A., and I.E., ) children. ) ) ) A.R., ) ) Petitioner, ) ) v. ) Case No. 2D17-2815 ) DEPARTMENT OF CHILDREN AND ) FAMILIES and GUARDIAN AD LITEM ) PROGRAM, ) ) Respondents. ) )

Opinion filed March 16, 2018.

Petition 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 and Families.

Sara Goldfarb, Sanford, for Respondent Guardian ad Litem Program. PER CURIAM.

A.R. 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)).

The 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.

Not 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

-2- 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,

-3- 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.").

Petition granted and order quashed.

CASANUEVA, VILLANTI, and MORRIS, JJ., Concur.

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