In Re DN

858 So. 2d 1087, 2003 WL 22239088
CourtDistrict Court of Appeal of Florida
DecidedOctober 1, 2003
Docket2D03-844
StatusPublished

This text of 858 So. 2d 1087 (In Re DN) 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 Re DN, 858 So. 2d 1087, 2003 WL 22239088 (Fla. Ct. App. 2003).

Opinion

858 So.2d 1087 (2003)

In the Interest of D.N. and K.N., children.
Department of Children and Family Services and Sally Davies, as the guardian ad litem, Appellants,
v.
D.N., Appellee.

No. 2D03-844.

District Court of Appeal of Florida, Second District.

October 1, 2003.
Rehearing Denied November 3, 2003.

*1088 William Byrne Isaacs, Port Charlotte, and Andrea M. Lang, Fort Myers, for Appellant Department of Children and Family Services.

Robert L. Donald of Law Office of Robert L. Donald, Fort Myers, for Appellant Sally Davies.

J.L. "Ray" LeGrande of LeGrande & LeGrande, P.A., Fort Myers, for Appellee.

VILLANTI, Judge.

The Department of Children and Family Services and Sally Davies, the guardian ad litem (collectively "the Department"), appeal from the trial court's order requiring that two children, D.N. and K.N., be returned to the custody of their father, D.N., in Hawaii. Because there is a valid order from the Hawaii court giving D.N. legal custody of the two children, we affirm. We write to point out that it is the Department's refusal to respect controlling statutory authority that prevented the proper resolution of this case for over eighteen months.

As of January 2001, D.N., his wife, S.N., and the two children were living in Hawaii. For reasons not apparent from our record, on January 29, 2001, D.N. obtained a temporary restraining order requiring S.N. to vacate the family home and have no contact with D.N. or the two children. On March 13, 2001, the Hawaii court entered a "Family Court Order for Protection" that continued many of the terms of the temporary restraining order. The Order for Protection also gave D.N. both legal and physical custody of the two children and provided for supervised visitation between S.N. and the two children.[1] In addition, the Order for Protection required S.N. to "return the minor children of the parties, [D.N. and K.N.], to the care and custody of the Petitioner in the State of Hawaii forthwith." The Order for Protection is in effect by its own terms until January 28, 2004.

Between the entry of the temporary restraining order on January 29, 2001, and the entry of the Order for Protection on March 13, 2001, S.N. took the two children and left Hawaii. In August 2001, S.N. was arrested in Florida, and the Department sheltered the two children.[2] On October 10, 2001, the Department filed a petition for dependency of the two children against S.N. only. The Department has never filed a petition for dependency of the two children against D.N.

On October 12, 2001, D.N. filed a motion seeking to have the two children returned to him in Hawaii based on the Hawaii custody order. In support of this motion, D.N. referred the court to the Uniform Child Custody Jurisdiction Act (UCCJA), §§ 61.1302-.1348, Fla. Stat. (2001), which controls disputes between states concerning child custody orders. D.N. specifically cited section 61.1314, which states in pertinent part:

A court of this state shall not exercise its jurisdiction under this act if, at the time the petition is filed, a proceeding concerning the custody of the child was pending in a court of another state exercising jurisdiction substantially in conformity *1089 with this act, unless the proceeding is stayed by the court of the other state because this state is a more appropriate forum or for other reasons.

The Department apparently contested D.N.'s motion, and despite the clear statutory directive requiring the Florida court to defer to the Hawaii custody order, the trial court denied D.N.'s motion to have the two children returned to him.

After the trial court denied D.N.'s motion, the Department filed a case plan purporting to assign D.N. tasks to complete in order to be reunited with his children. Despite the fact that the Department had never sought to have the children declared dependent as to D.N. and the fact that the court had never declared the children dependent, the trial court approved the case plan.

During the remainder of 2001 and all of 2002, D.N. continued to seek to have the Hawaii custody order enforced. Finally, on January 14, 2003, the trial court held an evidentiary hearing concerning returning the two children to D.N. At that hearing, the Department raised no issues concerning compliance with the Interstate Compact on the Placement of Children (ICPC), section 409.401, Florida Statutes (2001). It did, however, continue to express its concerns that D.N. was an inappropriate caregiver, and it insisted that the two children should remain in the Department's care. At the close of the hearing, the trial court ordered that the two children be returned to D.N., but the court cited no statutory authority for its decision. The Department's motion for rehearing was denied.

Not to be dissuaded from its view of the matter, the Department then refused to transport the children to Hawaii. When D.N.'s attorney filed a motion to enforce the trial court's order and offered to take the children to Hawaii herself, the Department raised the issue of compliance with the ICPC. At the hearing on D.N.'s motion to enforce, the Department argued that the Hawaii ICPC compact administrator had not approved the placement of the children with D.N. The trial court noted that the Department had not raised this issue before, stating:

I really don't like this piecemeal stuff. The last time we were in here on this matter Ms. Dramko [D.N.'s attorney] submitted a letter to the Court from Hawaii basically saying it was okay. Now we've got another letter saying that it's not okay.
. . . .
I am not for breaking up somebody's family, I am not for participating in what I consider to be what is equivalent to a kidnapping of these children from their father and brought to this part of the country. You know, it seems like the department has made hostages of these children and they don't want to give them back. Why? There's no real reason that's been posed.
Misdemeanor convictions are not enough as far as I'm concerned to keep a child away [from] his father or her father. That is not enough.
Deliver the children to their attorney.

The Department then filed this appeal from the trial court's order. The Department's motion for stay filed in the trial court was denied, as was its motion for stay filed in this court. Therefore, it appears that the children were finally reunited with their father in April 2003.

The Department is charged by the legislature with providing for the care, safety, and protection of children. § 39.001(1)(a), Fla. Stat. (2001). While pursuing this objective, the Department is to "intrude as little as possible into the life of the family, be focused on clearly defined objectives, *1090 and take the most parsimonious path to remedy a family's problems." § 39.001(1)(b)(3). In addition, as the Department often reminds this court, the Department is to "ensure that permanent placement with the biological or adoptive family is achieved as soon as possible for every child in foster care and that no child remains in foster care longer than 1 year." § 39.001(1)(h). Despite these clear directives and objectives, the Department in this case has done everything within its power to prevent the reunification of D.N. with his children for almost eighteen months, including misleading the trial court, and attempting to mislead this court, about the controlling law.

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Bluebook (online)
858 So. 2d 1087, 2003 WL 22239088, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-dn-fladistctapp-2003.