B.J.M. v. State, Dept. of Health and Rehabilitative Services
| Decision Date | 28 September 1993 |
| Docket Number | No. 92-1004,92-1004 |
| Citation | 627 So.2d 512 |
| Parties | 18 Fla. L. Weekly D2147 B.J.M., Appellant, v. The STATE of Florida, DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellee. |
| Court | Florida District Court of Appeals |
Karen A. Gievers, Miami, for appellant.
Dittmar & Hauser, P.A., and Helen Ann Hauser, Coconut Grove, for appellee.
Before NESBITT, JORGENSON and LEVY, JJ.
B.J.M., an abused, neglected, and abandoned child who has over time been adjudicated both dependent and delinquent, appeals from an order of summary judgment in his action against the Department of Health and Rehabilitative Services seeking mandamus and damages for negligence. For the reasons that follow, we affirm in part, reverse in part, and remand for further proceedings.
B.J.M. was born on December 25, 1973, and was abandoned by his parents. He has been diagnosed as borderline retarded. B.J.M. was raised by an elderly woman whom he knew as his grandmother, although she denied any blood ties to him. In March, 1987, B.J.M. was adjudicated dependent on the basis of neglect and abandonment. The woman who had raised him refused to provide continuing support; another relative refused to accept responsibility for him. Upon being adjudicated dependent, H.R.S. and B.J.M. entered into a performance agreement. No relative of B.J.M. was a party to that agreement. In the agreement, the H.R.S. foster care worker agreed to "see that the child is enrolled in appropriate school setting" and "see that counseling is provided for child at the Health and Rehabilitative Services placement."
B.J.M. was placed in three foster homes. One returned him to H.R.S. custody because he had exhibited inappropriate sexual behavior and his foster parent feared for the safety of young female relatives. He apparently ran away from another home, and was ungovernable in the third. He was taken to counseling, but H.R.S. discontinued the counseling because B.J.M. refused to talk to the therapist.
In June 1989, B.J.M. was adjudicated delinquent for committing attempted arson. The juvenile court recommended placement at Hillsborough Alternative Residential Program [HARP], a facility specializing in juvenile sex offenders. 1 B.J.M. was placed at Montanari Clinical School, a residential facility, which was the placement ranked third by the court. In August, 1989, B.J.M. was adjudicated delinquent for burglary of a dwelling. Because he was already living at Montanari, the court recommended that he remain there. In the delinquency proceedings, the court appointed Christina Zawisza, an attorney with Legal Services of Greater Miami, as guardian ad litem.
While at Montanari, B.J.M. exhibited inappropriate sexual conduct and other aggressive behavior, and was assigned to the "Paisano" unit, the most restrictive environment. Although he attended classes at Montanari, he received no vocational training. Moreover, Montanari discontinued his group therapy because, in the words of his foster care worker, B.J.M. "could not be motivated to face" issues involving his sexual conduct. Thus, despite his obvious, documented psychological problems he received no therapy to address his sexual behavior. Although a referral to Grant Center had been recommended in 1987, it had never actually been made. Every two weeks B.J.M. received counseling relating to his goals and future plans; that counseling lasted, at times, only ten minutes.
Following the various judicial reviews in the dependency proceeding, the juvenile court found B.J.M.'s placement appropriate. However, the court indicated that although Montanari was not an inappropriate placement, HARP would be more appropriate. B.J.M. did not appeal any of the orders that found his placement appropriate.
In December, 1990, B.J.M., by and through Legal Services of Greater Miami, brought a mandamus action against H.R.S. in the General Jurisdiction Division of the Circuit Court seeking to compel H.R.S. to place B.J.M. in HARP. 2 B.J.M. later amended his complaint to include an action for damages for negligence, alleging that H.R.S. had failed to provide him with necessary counseling and education, had placed him inappropriately, and had failed to meet his emotional and developmental needs. H.R.S. answered, asserted various affirmative defenses, and moved for summary judgment on the grounds of sovereign immunity, collateral estoppel based on the juvenile court proceedings, lack of subject matter jurisdiction based on the juvenile proceedings, immunity based on section 39.455, Florida Statutes (1991), and Legal Services' lack of standing. The trial court granted H.R.S.' motion for summary judgment without specifying any grounds; B.J.M. appeals.
We affirm the order of summary judgment as to the action for mandamus that sought to compel H.R.S. to place B.J.M. in HARP. "In order to show entitlement to the extraordinary writ of mandamus, the petitioner must demonstrate a clear legal right on his part, an indisputable legal duty on the part of respondents, and that no other adequate remedy exists." Department of Health & Rehab. Servs. v. Hartsfield, 399 So.2d 1019, 1020 (Fla. 1st DCA 1981) (citations omitted). A writ of mandamus is not available "to command official action which involves the exercise of discretion." City of Miami Beach v. The Atheneum, Inc., 254 So.2d 41, 43 (Fla. 3d DCA 1971).
The Florida Legislature, "in its wisdom," has denied the juvenile courts any authority to place juveniles in particular facilities once they have been adjudicated dependent or delinquent, and has given H.R.S. almost total discretion in the area of placement. Pursuant to section 39.09, Florida Statutes (1989), a court could only rank alternatives presented by H.R.S. as possible placements, and could not order a specific placement. See D.M. v. State, 539 So.2d 579 (Fla. 5th DCA 1989) (); Department of Health & Rehab. Servs. v. McGregor, 511 So.2d 1096 (Fla. 5th DCA 1987) (same). Compare M.M. v. Korda, 544 So.2d 318 (Fla. 4th DCA 1989) () and In re C.S., 573 So.2d 168 (Fla. 4th DCA 1991) (). Section 39.052, Florida Statutes (1991), which replaced section 39.09, likewise limits judicial input to choosing the level of restriction to be imposed, and does not allow the juvenile court to require placement in a particular facility or for a particular term. Courts have expressed their deep-rooted frustration with these limitations.
Section 39.09(3)(e), Florida Statutes (1985), which relegates juvenile judges to merely making a recommendation by ranking H.R.S. program options, is an exceedingly frustrating limitation on a conscientious judge who may believe that the alternatives listed by H.R.S. do not include an available program that is in the best interests of the child. The legislature should either give the juvenile judge's decision judicial authority or take him completely out of that decision-making process. The present statute places apparent responsibility on the judge for making a decision but does not give him authority to effectuate his best judgment. The judicial function does not include the making of "recommendations" to the executive branch of government and is degraded and frustrated by this statute which serves little or no meaningful function.
Department of Health & Rehab. Servs. v. R.S., 511 So.2d 434, 435 (Fla. 5th DCA 1987) (Cowart, J., concurring specially). See also Department of Health & Rehab. Servs. v. McGregor, 511 So.2d 1096, 1098 (Fla. 5th DCA 1987) () The role of the judiciary is so limited that mandamus has been issued against a judge who refused to accept and rank the options presented by H.R.S. for disposition of a delinquent child. N.L.J. v. Komanski, 527 So.2d 840 (Fla. 5th DCA 1988). We share the frustrations of the juvenile court and guardians ad litem who seek the best possible placement for the troubled youths committed to the custody of H.R.S. Nevertheless, as long as the legislature has so severely circumscribed the authority of the juvenile courts, we have no choice but to continue to recognize the almost total discretion enjoyed by H.R.S. in selecting placements, and to affirm the trial court's denial of a writ of mandamus.
Sovereign immunity bars B.J.M.'s negligence action against H.R.S. for improper placement. Decisions regarding where a dependent or delinquent child will be placed fall within the "policy-making, planning or judgmental government functions" for which government agencies remain immune from liability. Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla.1979). See also Tubell v. Dade County Public Schools, 419 So.2d 388 (Fla. 3d DCA 1982) (). To clarify the concept of governmental tort liability, the Florida Supreme Court placed governmental functions and activities into four categories: "(I) legislative, permitting, licensing, and executive officer functions; (II) enforcement of laws and the protection of the public safety; (III) capital improvements and property control operations; and (IV) providing professional, educational, and general services for the health and welfare of the citizens." Trianon Park Condominium v. City of Hialeah, 468 So.2d 912, 919 (Fla.1985). Activities that fall within categories I and II do not...
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