Sj v. Dept. of Health and Rehab.

700 So. 2d 71
CourtDistrict Court of Appeal of Florida
DecidedSeptember 26, 1997
Docket97-432, 97-1683
StatusPublished
Cited by8 cases

This text of 700 So. 2d 71 (Sj v. Dept. of Health and Rehab.) 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
Sj v. Dept. of Health and Rehab., 700 So. 2d 71 (Fla. Ct. App. 1997).

Opinion

700 So.2d 71 (1997)

S.J., natural mother of M.J., a minor child, Petitioner,
v.
DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Respondent.

Nos. 97-432, 97-1683.

District Court of Appeal of Florida, First District.

September 26, 1997.

*72 Steven P. Seymoe of Ausley & McMullen, Tallahassee, for Petitioner.

Laura E. Anderson, Assistant Legal Counsel, Department of Children and Families, Tallahassee, for Respondent.

JOANOS, Judge.

S.J., the natural mother of M.J., a minor, petitions for certiorari review of two circuit court postdependency orders: (1) an amended order on shelter review in Case No. 97-432, in which the court applied a "best interest of the child" standard in its determination to remove a child previously adjudicated dependent from the mother's home, and to place the child with an adult relative; and (2) an order terminating protective supervision of the Department of Children and Family Services (Department) in Case No. 97-1683, and approving a change of goal from reunification of the child with the parent to long-term relative placement. The petitioner/mother maintains the circuit court applied an erroneous standard in removing the child from the mother's care and custody, and erred in placing the child in long-term relative *73 placement without adherence to the statutory requirements. We agree, and grant the petitions for certiorari in both cases.

The adjudication of dependency in this case occurred in 1988, based upon the circuit court's determination that M.J.'s stepfather meted out excessive corporal punishment to M.J.'s half sister.[1] On February 4, 1991, the Department's protective supervision was terminated as to the mother, based upon a determination that she had completed counseling and had satisfied the other conditions imposed by the Department for reunification of the mother with her child. M.J.'s stepfather was not permitted to return to the family at that time, due to his failure to meet all of the Department's requirements.

In July 1993, the mother requested Department approval of a change in custody of M.J. and her half sisters from the mother to the maternal grandfather and his wife, due to the mother's temporary unemployment. In December 1993, the mother petitioned for return of her children to her care. In February 1994, the Department submitted a report to the circuit court which indicated the petitioner's voluntary placement of her children with her father and stepmother had proved to be a mistake, because of the poor relationship between the petitioner and her stepmother. M.J.'s subsequent placement with her maternal aunt apparently posed no problems. The child's half-sisters had been placed with their father, with week-end visitation with the mother, petitioner herein.[2]

In June 1996, M.J. was returned to her mother's custody, but remained under the protective supervision of the Department. The circuit court found the mother had substantially complied with the terms of the case plan, and further found the reason for removal of the child had been remedied to the extent that the child's safety and well-being would not be endangered by a return to her mother's custody.

On October 10, 1996, the Department petitioned for detention of M.J., alleging that within one month of M.J.'s return, the mother returned to a relationship which formerly had involved domestic violence. The Department alleged that M.J. "was very upset by her mother's resumption of the relationship with Mr. Collins." M.J. asked the Department to return her to her aunt's home "where she feels safe." [3] The petition further states:

3. Last month, [the mother] married Johnny Collins, who is her stepbrother. On 10/9/96, [the mother] & Johnny Collins engaged in domestic violence to the extent that Johnny Collins ordered [the mother] out of his car and when she refused, he tried to physically remove her. [M.J.] was in the car at the time. This is not the first episode of violence since [M.J.] has returned home.
4. Since returning to her mother's care, [M.J.] has missed at least six days of school this year and her grades have dropped.

On October 11, 1996, the circuit court entered an order placing M.J. in shelter care. At that time, the Department recommended return of M.J. to the custody of her maternal aunt, and exploration of permanent placement for her. The report of the guardian ad litem indicated that M.J. possessed a good understanding of the issues of the case, but appeared to have mixed emotions concerning the possibility of termination of her mother's parental rights. M.J. wanted the stable environment provided by her aunt, but also wanted to see her mother. The guardian noted a strong attachment between M.J. and her aunt and uncle.

*74 On December 27, 1996, the circuit court entered the amended order on shelter review which is the subject of the petition for certiorari review in Case No. 97-432. The order states that at the hearing held October 28, 1996, the court spoke with the child in chambers in the presence of the attorneys and the guardian. The mother's counsel argued the standard for removal of the child from the mother's custody should be related to the safety of the child. The Department argued the court should use a "best interest of the child" standard to determine M.J.'s placement. The circuit court directed the attorneys to brief the appropriate standard for determination of a child's placement after a child has been previously adjudicated dependent. Upon consideration of the memoranda submitted by the parties, the court determined that "a best interest of the child" standard was appropriate for placement of a child subsequent to adjudication of dependency. Paragraphs 9 and 10 of the order state:

9. The Court further finds from talking with the child that the child was affected by the domestic disturbance she witnessed between the Mother and her new Husband. The Court will not place or return a child to any home in which there is domestic violence. The Court does note that when specifically questioned by the mother's counsel, the child indicated that she herself was not hurt, or in fear of being hurt at any time as a result of the incident in October 1996; rather, the child indicated that she did not want to live with her mother for fear her mother might be harmed.
10. It is in the best interest of [the child], given the material change in circumstances in her natural mother's home, to have her temporary care, custody, and control placed with her aunt, ...

The mother then filed an affidavit opposing the removal of M.J. from her care and custody. The mother detailed the number of counseling sessions she had undergone with M.J. and with her husband, and explained the efforts she and her husband had made to apply the dispute resolution techniques discussed in those counseling sessions. The mother's affidavit also described the events leading up to the October 10, 1996, argument between herself and her husband which led to M.J.'s contacting the Department and requesting a change in custody. According to the affidavit, when the argument commenced, the mother sent M.J. into her maternal grandfather's house. The mother asserted that M.J. was never in any danger during the argument, and the argument did not involve blows or threats to strike. The mother's affidavit suggested M.J. contacted the Department in order to avoid certain rules imposed upon her by the mother and her new husband.

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Bluebook (online)
700 So. 2d 71, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sj-v-dept-of-health-and-rehab-fladistctapp-1997.