In Interest of ADJ

466 So. 2d 1156, 10 Fla. L. Weekly 817, 1985 Fla. App. LEXIS 13166
CourtDistrict Court of Appeal of Florida
DecidedMarch 28, 1985
DocketAV-422
StatusPublished
Cited by19 cases

This text of 466 So. 2d 1156 (In Interest of ADJ) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Interest of ADJ, 466 So. 2d 1156, 10 Fla. L. Weekly 817, 1985 Fla. App. LEXIS 13166 (Fla. Ct. App. 1985).

Opinion

466 So.2d 1156 (1985)

In the Interest of A.D.J. and D.L.J.

No. AV-422.

District Court of Appeal of Florida, First District.

March 28, 1985.

*1158 Daniel A. Smith, of Coxe, Schemer & Smith, Jacksonville, for appellants.

James A. Peters, Asst. Atty. Gen., Tallahassee, for appellee.

ZEHMER, Judge.

This appeal is from a final judgment adjudicating A.D.J., a five-year-old girl, and D.L.J., a seven-year-old girl, dependent children and permanently committing them to the Department of Health and Rehabilitative Services (HRS) for adoption. Appellant, the children's father, raises three issues: (1) The trial court erred in taking judicial notice of prior dependency proceedings in which the father was not represented by counsel; (2) The court erred in admitting certain hearsay statements and reports of non-testifying witnesses; and (3) The trial court erred in ordering permanent commitment because the record lacks clear and convincing evidence that the father was guilty of abuse, abandonment, or neglect and that permanent commitment is in the best interests of the children. We reverse.

On March 5, 1982, HRS filed in the Duval County Circuit Court (cases 82-211-CJA and 82-211-CJB) two petitions for dependency to obtain custody of A.D.J. and D.L.J. Each petition specifically alleged that the father "has abused said child by commiting a willful act that has resulted in physical, mental, or sexual injury" and that the mother has neglected each child. The petitions also alleged that the father had "fondled" D.L.J. At the initial hearing on the petitions held March 17, 1982, the court explained the parents' right to have counsel appointed to advise and represent them if they could not afford to hire a lawyer. Both waived this right. The court then explained to them that they could admit the allegations of the petitions, deny the allegations, or neither admit nor deny them but agree to relinquish jurisdiction of the children to the court. The record reflects that the mother stated the children "should be a ward to the court" and that the father never chose any one of the three alternatives. On March 19, 1982, the court entered *1159 an order adjudicating dependency and committing the children to the temporary custody of HRS on the ground that the "parents stipulated as to dependency of child."

On April 8, 1982, the parents entered into a performance agreement in accordance with section 409.168, Florida Statutes (1981). Among other things, the agreement required that both parents receive counseling and, by September 1982, provide HRS with a statement from their therapists certifying parental fitness. Between April and December 1982, the parents underwent various counseling sessions pursuant to the performance agreement, and their status was periodically reviewed by the court. The record does not reflect that they provided a statement of parental fitness from their therapists, as required by the agreement. On December 1, 1982, the court ordered HRS to commence permanent commitment proceedings. The mother agreed to permanent commitment, but the father objected. The court, finding the father indigent, appointed him an attorney.

On April 21, 1983, HRS filed petitions for permanent commitment, alleging that each child had been adjudicated dependent and that it was in the best interests of the children that they be permanently committed since the mother had consented to entry of an order of permanent commitment and the father had sexually abused the children within the meaning of section 39.41(1)(f)1 a, Florida Statutes (1981).[1] No other grounds were alleged. The petitions were not filed under the same docket numbers used in the pending dependency proceedings, but were set up as new cases with separate docket numbers (83-1729-CJA and 83-1729-CJB).

On July 15, 1983, a hearing was held on the petitions for permanent commitment. At the outset, HRS requested that the court take judicial notice of the files in the pending dependency cases (82-211-CJA and 82-211-CJB). Counsel for the father objected on the ground that the dependency files did not constitute evidence of abuse for purposes of the permanent commitment hearing. He argued that the allegations of abuse must be proved at the permanent commitment hearing independently of the dependency adjudication previously entered. The court overruled the objection and took judicial notice of the court files.

The father also made an oral motion to dismiss on the ground that the petitions for permanent commitment were too vague and overbroad to put the father on notice of the specific allegations of abuse. HRS responded that throughout the entire proceeding the father was certainly aware of the specific allegations made by HRS. HRS also mentioned that the father had entered a performance agreement and that noncompliance with that agreement was an additional ground for permanent commitment, but HRS did not move to amend its petition to allege this as an additional ground for permanent commitment. The father's motion to dismiss was denied.

During the course of the final hearing, HRS moved that the trial court limit the scope of the hearing to a determination of what disposition would be in the best interests of the children. In reliance upon In the Interest of C.M.H., 413 So.2d 418 (Fla. 1st DCA 1982), HRS argued that the adjudications of dependency previously made were conclusive on the issue of child abuse. Counsel for the father objected on the ground that the father was unrepresented at the time of the original dependency adjudication. The court granted HRS's motion and limited the litigated issues to consideration of the best interests of the children. Despite this ruling, HRS presented evidence that the father had failed to comply with the terms of his performance agreement by not providing HRS with a statement from his therapist certifying him to be a fit parent.

On September 26, 1983, the court entered a final judgment of permanent commitment *1160 for adoption. Relying on the two court files judicially noticed, it found that the element of abuse necessary for permanent commitment had been conclusively proven when the children, based on the parents' alleged stipulation, were previously adjudicated dependent. The court also found that the father had not complied with the terms of his performance agreement and that, since HRS had orally amended its petition to include this as an alternative ground for permanent commitment,[2] his noncompliance constituted an independent ground for such commitment. Finally, the court summarized the testimony of the various witnesses and concluded that it was manifestly in the best interests of the children that they be permanently committed for adoption.

The United States Supreme Court has concisely described the parental interests involved in permanent commitment proceedings:

[A] parent's desire for and right to `the companionship, care, custody, and management of his or her children' is an important interest that `undeniably warrants deference and, absent a powerful countervailing interest, protection.'
* * * * * *
A parent's interest in the accuracy and justice of the decision to terminate his or her parental status is, therefore, a commanding one.

Lassiter v. Dept. of Social Services, 452 U.S. 18, 27, 101 S.Ct. 2153, 2159, 68 L.Ed.2d 640 (1981) (citations and footnote omitted).

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Bluebook (online)
466 So. 2d 1156, 10 Fla. L. Weekly 817, 1985 Fla. App. LEXIS 13166, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-interest-of-adj-fladistctapp-1985.