THE CHILDREN'S HOME SOCIETY OF FLORIDA v. K.W., K.J., R.B., R.B. AND R.B.

• Court: District Court of Appeal of Florida
• Decided: January 13, 2021
• Docket: 20-0569
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed January 13, 2021. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D20-0569 Lower Tribunal No. 15-15102 ________________

The Children's Home Society of Florida, a non-party, Petitioner,

vs.

K.W., K.J., R.B., R.B. and R.B., Respondents.

A Writ of Certiorari to the Circuit Court for Miami-Dade County, Laura Anne Stuzin, Judge.

Klein Glasser Park & Lowe, P.L., and Kayla A. Riera-Gomez and Andrew M. Feldman, for petitioner.

Thomasina F. Moore, Statewide Director of Appeals and Laura J. Lee, Senior Attorney (Tallahassee), for the Statewide Guardian ad Litem Office.

Karla Perkins, Appellate Counsel for the Department of Children & Families.

Before LOGUE, LINDSEY and LOBREE, JJ.

PER CURIAM. The Children’s Home Society of Florida (“CHS”), a non-party to the

dependency proceeding below, seeks a writ of common law certiorari directed at the

lower court’s March 9, 2020 order holding it in civil contempt and imposing a fine

of $2,500 per day to compel compliance with a prior order.

A party cannot be held in contempt for non-compliance with a court order if

the party did not have the present ability to comply with the court order. See, e.g.,

Wilcoxon v. Moller, 132 So. 3d 281, 287 (Fla. 4th DCA 2014); Harris v. Hampton,

70 So. 3d 747, 749 (Fla. 4th DCA 2011); Boby Express Co. v. Guerin, 930 So. 2d

842, 844 (Fla. 3d DCA 2006). In addition, the Florida Rules of Juvenile Procedure

impose specific requirements on any order finding a party in contempt. Rule 8.286,

which applies to all indirect civil contempt proceedings, provides: “If the court

orders . . . a coercive fine . . . for failure to comply with a prior order, the court must

set conditions for purge of the contempt, based on the contemnor’s present ability to

comply.” Fla. R. Juv. P. 8.286(e). The same rule also expressly requires “a separate

affirmative finding that the contemnor has the present ability to comply with the

purge and the factual basis for that finding.” Thus, before imposing contempt

sanctions, the lower court was obligated to make affirmative findings, supported by

facts, that CHS had the ability to comply with the conditions for the purge of the

contempt. It did not do so. See Dep’t of Children & Families v. R.H., 819 So. 2d

858, 862 (Fla. 5th DCA 2002); see also Winton v. Saffer, 158 So. 3d 703, 704 (Fla.

2 3d DCA 2015); Creative Choice Homes, II, Ltd. v. Keystone Guard Servs., Inc., 137

So. 3d 1144, 1148 (Fla. 3d DCA 2014). As such, the lower court departed from the

essential requirements of the law in finding that CHS had (and now has) the ability

to comply with the amended order adjudging it guilty of indirect civil contempt.

Accordingly, we grant the petition for certiorari and quash the order under

review.