Children's Home Soc'y of Fla. v. K.W.

• Decision Date: 13 January 2021
• Docket Number: No. 3D20-0569,3D20-0569
• Citation: 315 So.3d 129 (Mem)
• Parties: The CHILDREN'S HOME SOCIETY OF FLORIDA, a non-party, Petitioner, v. K.W., K.J., R.B., R.B. and R.B., Respondents.
• Court: Florida District Court of Appeals

315 So.3d 129 (Mem)

The CHILDREN'S HOME SOCIETY OF FLORIDA, a non-party, Petitioner, v. K.W., K.J., R.B., R.B. and R.B., Respondents.

No. 3D20-0569

District Court of Appeal of Florida, Third District.

Opinion filed January 13, 2021

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. 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...