T.N.L. v. Department of Children & Families

132 So. 3d 319, 2014 WL 223001, 2014 Fla. App. LEXIS 589
CourtDistrict Court of Appeal of Florida
DecidedJanuary 22, 2014
DocketNo. 4D13-1577
StatusPublished
Cited by3 cases

This text of 132 So. 3d 319 (T.N.L. v. Department of Children & Families) 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
T.N.L. v. Department of Children & Families, 132 So. 3d 319, 2014 WL 223001, 2014 Fla. App. LEXIS 589 (Fla. Ct. App. 2014).

Opinion

CIKLIN, J.

The mother appeals the judicial review order pertaining to the child, A.L. The order, among other things, denied the mother’s motion for reunification with A.L. and placed the child in the custody of the father. The mother argues the court erred in denying her motion without a requisite finding that reunification would endanger the child. We agree with the Department of Children and Families (the [321]*321“Department”) that under a permitted retroactive application of an amended version of the applicable statute, the court could base its decision on a best interest of the child standard and did not err by doing so. However, because the amended version of the statute became effective on July 1, 2013, a date after the reunification hearing in this case, and because the mother may have chosen to present different or additional evidence below under the new standard, we reverse and remand for a new hearing on the mother’s motion.

Factual Background

In January 2012, the Department filed a dependency petition as to the mother’s four children, K.D., J.D., N.L., and A.L., the child who is the subject of this appeal. The Department alleged, among other things, that the mother’s drug addiction negatively affected the children, and that the children witnessed physical confrontations between the mother and her paramour. In March 2012, the mother entered a consent plea and the children were adjudicated dependent and placed in the care of the maternal grandmother. The court approved a case plan with a goal of reunification by November 19, 2012.

In June 2012, the Department filed an amended petition which alleged that the children were also dependent as to their respective fathers.1 With respect to A.L., the amended petition alleged that her father never met her and failed to provide support for her. After the court held an adjudicatory hearing as to A.L.’s father, the court found insufficient evidence to adjudge A.L. dependent with respect to the father, and it dismissed the dependency petition against him. In that same order, the court confirmed the reunification goal as to the mother, found that placement of A.L. with the father would not endanger her, and ordered the child be reunified with the father, who resided in Kentucky. The child began residing with the father in late June or early July 2012.

By October 2012, the mother was in substantial compliance with her case plan tasks, according to a judicial review report. In December 2012, the mother filed a motion for reunification with all four children which resulted in reunification of all of the children except for A.L. Over a matter of months, hearings were held on the mother’s motion for reunification as to A.L., with the last hearing occurring in March 2018. The evidence presented at the hearing established that the mother complied with all of her case plan tasks, with the exception of an in-home parenting review, which would take place upon reunification. As to A.L.’s placement with the father in Kentucky, the evidence indicated that A.L. was doing well both emotionally and with regard to her progress at school. No evidence was presented suggesting that A.L. would be endangered if she were returned to the mother, and the attorney for the Department conceded as much during closing argument. Nonetheless, the Department argued it was in A.L.’s best interest to remain with the father.

The court entered an order denying in part and granting in part the mother’s motion for reunification as to A.L. The court found the following. The mother completed the tasks in the case plan designed to address the circumstances which resulted in the dependency proceedings. A.L. had “blossomed” since moving to Kentucky and, due to the mother’s arrest in January 2012, A.L. had not lived with the mother for more than a year. Based on the evidence and the guardian ad li-tem’s recommendation that the child re[322]*322main with the father, the court found that reunification with the mother would be detrimental to A.L. and thus not in her best interest. The court, however, ordered a parenting plan which provided for timesharing. The judicial review order terminated supervision and jurisdiction as to A.L.

Analysis

On appeal, the mother argues the court could not deny reunification absent a specific finding that A.L.’s safety and well-being would be endangered. She relies on section 39.522(2), Florida Statutes (2012), which, at the time of the reunification hearing, provided that a child must be reunited with the offending parent if the parent has substantially complied with the case plan to the extent the child would not be endangered by reunification.

The Department points out that section 39.522 was amended after the hearing to add a third subsection specifically addressing reunification with the offending parent when the child is in the temporary custody of the non-offending parent. The Department argues that the amended version of the statute allows a court to deny a reunification motion based solely on the best interest of the child, even where there is no evidence that reunification would endanger the child.2

We turn now to a discussion of each version of section 39.522, and to the issue of the retroactive application of the amended version of the statute.3

Application of the (“Older”) 2012 Version of Section 39.522

The relevant statute in effect at the time of the reunification hearing provided the following:

In cases where the issue before the court is whether a child should be reunited with a parent, the court shall determine whether the parent has substantially complied with the terms of the case plan to the extent that the safety, well-being, and physical, mental, and emotional health of the child is not endangered by the return of the child to the home.

§ 39.522(2), Fla. Stat. (2012). Of important and historical note is this court’s recognition that even when applying section 39.522(2), however, the trial court must also make additional findings required under section 39.621(10), Florida Statutes (2012). See G.V. v. Dep’t of Children & Families, 985 So.2d 1243, 1246 (Fla. 4th DCA 2008). Section 39.621(10) provides the following:

The court shall base its decision concerning any motion by a parent for reunification ... on the effect of the decision on the safety, well-being, and physical and emotional health of the child. Factors that must be considered and addressed in the findings of fact of the order on the motion must include:
(a) The compliance or noncompliance of the parent with the ease plan;
(b) The circumstances which caused the child’s dependency and whether [323]*323those circumstances have been resolved;
(c) The stability and longevity of the child’s placement;
(d) The preferences of the child, if the child is of sufficient age and understanding to express a preference;
(e) The recommendation of the current custodian; and
(f) The recommendation of the guardian ad litem ....

§ 39.621(10), Fla. Stat. (2012). These factors have been characterized as “best interest” factors. See S.V.-R. v. Dep’t of Children & Family Servs., 77 So.3d 687, 689 (Fla.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

E.N. v. Department of Children & Families
224 So. 3d 900 (District Court of Appeal of Florida, 2017)
D.H., the Father v. T.N.L., the Mother and Guardian Ad Litem Program
191 So. 3d 943 (District Court of Appeal of Florida, 2016)
V.V. v. Department of Children & Families
166 So. 3d 948 (District Court of Appeal of Florida, 2015)

Cite This Page — Counsel Stack

Bluebook (online)
132 So. 3d 319, 2014 WL 223001, 2014 Fla. App. LEXIS 589, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tnl-v-department-of-children-families-fladistctapp-2014.