BC v. Department of Children and Families, 5D03-1680.
Decision Date | 02 January 2004 |
Docket Number | No. 5D03-1680.,5D03-1680. |
Citation | 864 So.2d 486 |
Parties | B.C., Father of S.C. and D.C., Children, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee. |
Court | Florida District Court of Appeals |
R. Mitchell Prugh of Middleton & Prugh, P. A., Melrose, for Appellant.
John H. Traphofner of Department of Children and Families, Palatka, for Appellee.
B.C., the biological father of S.C. and D.C., appeals an order adjudicating S.C. and D.C. dependent. B.C. argues that the trial court's written order of dependency did not conform to the court's oral pronouncement. He also contends that the adjudication of dependency was erroneous because he was willing and able to care for the children and was a non-offending parent. We reverse and remand the matter for further proceedings.
S.C. and D.C., both under the age of four, resided solely with their mother, M.N., until they were taken into State custody. The dependency case was initiated when the Department of Children and Families ("the Department") filed an Affidavit and Petition for Placement in Shelter, requesting that the court shelter S.C. and D.C. The petition alleged that the mother had a history of abusing drugs and alcohol, resulting in S.C.'s removal in the past, and that the mother had relapsed, placing the children at imminent risk. In addition, the Department alleged that B.C., the father, had a history of violence and involvement with illegal drugs. The shelter order found probable cause to believe that the children were at risk from both the mother and the father and ordered that the children be placed in the temporary custody of the Department. Thereafter, the Department filed a petition for dependency. However, the dependency petition made no allegations as to B.C., as the Department dropped all allegations against him.
B.C., through counsel, denied the petition for dependency, while the mother consented to the petition. At the arraignment, the following exchange occurred:
(Emphasis added). A disposition date, acceptable to all the parties, was then set. In the interim, B.C. filed a motion for temporary and permanent custody of his children.
A week prior to the disposition hearing, the trial court entered a written order from the earlier arraignment hearing. The written order stated that "[b]ased on the mother's consent, the Court finds the child(ren) to be dependent within the intent and meaning of Chapter 39.01(14)(a), Florida Statutes." Thus, the written order did not withhold adjudication of dependency, as had been agreed at the arraignment hearing. Where there is a difference between the court's oral pronouncement and its written order, the oral pronouncement controls. See D.F., Jr. v. State, 650 So.2d 1097 (Fla. 2d DCA 1995). The Department concedes that the scrivener's error should be corrected to reflect the agreement of the parties and the court's oral pronouncement. To the extent that the order needs clarification, we remand the matter to the trial court. See Y.G. v. Dep't of Children & Families, 830 So.2d 212 (Fla. 5th DCA 2002)
.
Of more significance, B.C. argues that section 39.01(14)(a) was not intended to allow children to be found dependent when the allegations are against only one parent and there exists another fit nonoffending parent willing to assume custody.
Section 39.01(14), Florida Statutes (2003), provides the following definition:
(Emphasis added). Based on the inclusion of "parent or parents" in section 39.01(14), the Legislature's intent to permit a finding of dependency based on allegations against only one parent is clear and unambiguous. When a statute is clear and unambiguous, courts will not look behind the statute's plain language for legislative intent. City of Miami Beach v. Galbut, 626 So.2d 192, 193 (Fla.1993).
In Department of Health and Rehabilitative Services v. P.H., 659 So.2d 1375, 1377 (Fla. 1st DCA 1995), the first district court addressed the issue of legislative intent in determining whether a chapter 39 finding of dependency required findings against both parents, holding:
We construe the legislature's use of the disjunctive "or" to designate a single parent or parents, and the inclusion of custodians as persons whose conduct may result in a finding that a child is dependent, as indicative of legislative intent that a finding of dependency can be predicated upon the neglect of one parent, both parents, or the custodians of a minor child, depending upon the circumstances of the particular case. Case law on this subject has applied dependency provisions in this manner. See, e.g., C.F. v. Department of Health and Rehabilitative Services, 649 So.2d 295 (Fla. 1st DCA 1995)
; In the Interest of J.J. and J.J., 570 So.2d 1078, 1079 (Fla. 1st DCA 1990); In the Interest of L.S., 592 So.2d 802 (Fla. 4th DCA 1992).
The court further observed that, in addition, the 1994 amendments to section 39.404(3)(c)1 state in part: "The petition need not contain allegations of acts or omissions by both parents." Id. The statute now in effect, section 39.501, Florida Statutes (2003), contains the same language.2See also J.V. v. Dep't of Health & Rehabilitative Servs., 661 So.2d 1263, 1265 n. 2 (Fla. 1st DCA 1995).
This court has also recognized the application of chapter 39 dependency to "nonoffending" parents. In J.P. v. Department of Children and Families, 855 So.2d 175 (Fla. 5th DCA 2003), this court rejected the argument that a non-offending father could not be required to participate in a case plan. This court determined that the trial court had the authority to order the father to submit to a psychological evaluation as an element of the case plan after the child was adjudicated dependent as to the mother and removed from her custody, even though child was not adjudicated dependent as to the father.
Lastly, section 39.521, Florida Statutes (2003), provides the procedure to be followed for placement of a dependent child:
(Emphasis added).
When read together, sections 39.01(14)(a) and 39.521, Florida Statutes (2003), provide a comprehensive framework supporting the Department's position for finding children dependent as to one parent only. Nevertheless, if there is a fit and able non-offending parent willing to take custody, "the court shall place the child with that parent upon completion of a home study, unless the court finds that such placement would endanger the safety, well-being, or physical, mental, or emotional health of the child." See § 39.521, Fla. Stat. (2003); Roberts v. Fla. Dep't of Children & Families, 687 So.2d 51, 51 (Fla. 3d DCA 1997) ( ).
B.C. also argues that section 39.01(14)(a) is unconstitutional in that...
To continue reading
Request your trial-
Promontory Enterprises, Inc. v. SOUTHERN ENGIN. & CONTRACT., INC.
... ... Department of State, Div. of Licensing, 565 So.2d 727 (Fla. 1st DCA 1990). If the ... ...
-
Fredman v. Fredman
...constitutional validity may be raised for the first time on appeal only if the error is fundamental."); B.C. v. Dep't of Children & Families, 864 So.2d 486, 491 (Fla. 5th DCA 2004) (recognizing that the facial unconstitutionality of a statute may be raised for the first time on appeal but t......
-
Emiddio v. Fla. Office of Fin. Regulation
...error, whereas unconstitutional application of an otherwise constitutional statute does not.” B.C. v. Dep't of Children & Families, 864 So.2d 486, 491 (Fla. 5th DCA 2004) (citing Alexander v. State, 450 So.2d 1212, 1216 (Fla. 4th DCA 1984) ).No Fundamental Error exists with OFR's Denial of ......
-
A.J. v. K.A.O.
...a fundamental liberty interest, such as parental rights, may be raised for the first time on appeal. See B.C. v. Dep't of Children & Families, 864 So.2d 486, 491 (Fla. 5th DCA 2004); In Interest of D.M., 616 So.2d 1192 (Fla. 4th DCA 1993). The de novo standard applies to reviewing facial co......
-
The Crab Fisherman and His Children: a Constitutional Compass for the Non-offending Parent in Child Protection Cases
...and INST. CODE 361.2 (2007); In re Austin P., 13 Cal. Rptr. 3d 616, 623 (Cal. Ct. App. 2004); B.C. v. Dep't of Children and Families, 864 So. 2d 486, 490-91 (Fla. Dist. Ct. App. 2004); In re Stephanie H., 639 N.W.2d 668, 679 (Neb. Ct. App. 2002). [124]See B.C., 864 So. 2d at 491 (holding th......