DCFS v. JC

• Decision Date: 23 September 2002
• Docket Number: No. 3D01-2620.,3D01-2620.
• Citation: 847 So.2d 487
• Parties: DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Petitioner, v. In the INTEREST OF J.C., et al., Respondents.
• Court: Florida District Court of Appeals

847 So.2d 487

DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Petitioner, v. In the INTEREST OF J.C., et al., Respondents.

No. 3D01-2620.

District Court of Appeal of Florida, Third District.

September 23, 2002.

Rehearing Denied July 8, 2003.

Linda Ann Wells, Miami, for petitioner.

Holland & Knight, and Robert K. Levenson, Miami; Mark Douthit; and Alan I. Mishael, Miami, for respondents.

Before GERSTEN, GODERICH and SORONDO, JJ.

GERSTEN, J.

The petitioner, the Department of Children and Families ("DCF"), petitions for writ of prohibition, or alternatively for writ of certiorari or non-final appeal, seeking to quash an order finding good cause to review the appropriateness of adoptive placement of a child and to prohibit change of placement pending a hearing. We deny the petition.

Child, J.C. ("J.C."), was born cocaine exposed in November of 1998 and was placed in DCF's physical custody. In December of 1998, J.C. was released to the physical custody of Geraldine Scott ("Geraldine"), a non-relative. J.C.'s father was a friend of Geraldine's and asked her to take custody of the baby. Geraldine agreed and indicated her desire to adopt J.C.

In 1999, J.C.'s father's parental rights were terminated. His mother's parental rights were terminated in August of 2000. The trial judge's findings in support of termination noted:

The Child has the ability to form a significant relationship with a parental substitute, and it is likely that the Child will enter a more stable and permanent family relationship as a result of permanent termination of parental rights and duties. The Child is currently placed with Ms. Geraldine Scott, who wishes to adopt the child.

After Geraldine initiated the adoption paperwork, the DCF filed a judicial review social study report which advised the trial court that Geraldine was providing a stable and nurturing home for J.C. The DCF's report further noted that J.C. was in the process of being adopted and had developed a close and loving relationship with Geraldine.

In November of 2000, Geraldine and J.C. moved to Virginia with the approval of DCF. The DCF then requested that the Department of Social Services in Virginia perform an adoption home study under the Interstate Compact On The Placement Of Children ("ICPC").¹ The Virginia home study report questioned Geraldine's financial ability to support J.C. and noted that Geraldine was not receiving financial assistance from the State of Florida. Significantly, the report stated "it is apparent that a definite bond between [J.C. and Geraldine] exists" and that "separating [the child] from [Geraldine] would have a mutually negative emotional affect on both." The report concluded that Geraldine required financial adoption assistance in order to maintain the placement. In June of 2001, the state of Virginia declined to accept adoptive placement of J.C. with Geraldine in that state, based upon concerns with Geraldine's financial status.

Since the state of Virginia did not accept the placement, the DCF decided to remove J.C. from Geraldine. In August of 2001, while Geraldine was in Florida on vacation, the DCF requested that she come into the office with the child. J.C. was then taken away from Geraldine without notice or warning. A few days later, the DCF filed a detention petition, advising the trial court that it was seeking a change of custody and that J.C. had already been placed with a different guardian. The court found there was no probable cause to remove the child from Geraldine, but granted the DCF's request for an evidentiary hearing and a stay.

The evidentiary hearing was held on August 8, 2001. During the course of the hearing, the DCF stated it was withdrawing both the detention petition and its motion to change custody, contending it had exclusive jurisdiction to take J.C. away from Geraldine in order to choose adoptive parents. The Guardian Ad Litem then moved ore tenus for the court to conduct a good cause hearing to review the appropriateness of the placement under Section 39.812(4), Florida Statutes (2001).² The trial court granted the motion, reaffirmed its probable cause findings, ordered a childhood intervention specialist to see the child immediately, and ordered DCF to return the child to Geraldine pending the subsequent appropriateness hearing.

On August 30, 2001, an amended order was entered, which explained the basis for finding good cause to review the appropriateness of the adoptive placement and which detailed the facts supporting the trial court's decision to prohibit change of placement pending hearing. Judge Lederman's well-reasoned and detailed order found as follows:

(1) the Child which is now over two and a half years old, has lived since he was two months old with Ms. Scott, (2) the Child is emotionally bonded to Ms. Scott, who has provided a loving, nurturing home for the Child, (3) Ms. Scott believed that she was the pre-adoptive parent of the Child, (4) previous judicial placement review orders have found this home to be an appropriate placement, (5) the Court has a reasonable concern that the well being of the Child will be endangered by taking him from the only mother he has ever known and placing him with strangers (6) the adoption home study from the City of Portsmouth, dated June 1, 2001, did not recommend removal of the child, (7) the court is alarmed by the precipitous and insensitive manner in which the Department removed this child from Ms. Scott and by the Department's failure to recognize the importance of bonding and attachment in early childhood relationships, (8) the court is unable to understand why the Department of Children and Families chose to take the drastic and harmful action of abruptly removing the child from the woman who had appropriately and lovingly cared for him for two and a half years rather than make reasonable efforts to work with Ms. Scott and provide services and assistance to Ms. Scott to remedy the Department's concern about her finances, (9) the court, charged with the safe-guarding of the health, safety and well being of this Child, has serious concerns about the actions of the Department of Children and Families in this case and feels compelled based on all the foregoing facts to "review the appropriateness of the adoptive placement of the Child" pursuant to Florida Law. Based on the law, Florida Department of Children and Families v. In the Interest of M.A.P., 788 So.2d 982 (Fla. 3d DCA 2001) and the aforesaid facts that form the basis for the Court's genuine concern about the potential harm to the Child, this Court orders that the Child be returned to Ms. Scott with whom he has lived for virtually his entire life and prohibits the Department of Children and Families from changing the child's placement, pending the outcome of the hearing to "review the appropriateness of the adoptive placement of the Child" scheduled for October 1, 2001, pursuant to F.S. 39.812(4).

The DCF thereafter filed this petition, essentially arguing the trial court acted in excess of its jurisdiction by preventing the DCF from changing J.C.'s placement and in maintaining the status quo for the child pending review of the appropriateness of adoptive placement under Chapter 39.

Under Chapter 39, the judicial and executive branches exercise concurrent jurisdiction over the welfare of foster children who have been placed in DCF's custody. See Simms v. State Dep't of Health and Rehab. Servs., 641 So.2d 957 (Fla. 3d DCA), review denied, 649 So.2d 870 (Fla. 1994).³ As part of its legislatively mandated review authority, the judiciary is specifically authorized to exercise its review powers in analyzing the appropriateness of a DCF proposed adoptive placement. See § 39.812(4), Fla. Stat. (2001). See also, §§ 39.013(2), 39.812, 39.813, Fla. Stat. (2001).

This is evidenced by the plain language of Section 39.812(4), which states that the court "shall retain jurisdiction over any child placed in the custody of the department until the child is adopted" and provides for continuing jurisdiction so that "the court may review the appropriateness of the adoptive placement of the child." § 39.812(4), Fla. Stat. (2001). The language of Section 39.812(4) is clear and must be given its plain and ordinary meaning. See Canida v. Canida, 751 So.2d 647 (Fla. 3d DCA 1999), review denied, 767 So.2d 455 (Fla.2000). The plain and ordinary meaning of Section 39.812(4) provides express statutory authority for the trial court to exercise judicial review of the appropriateness of adoptive placement. § 39.812(4), Fla. Stat. (2001).

In the context of exercising this review power, it is fundamentally recognized that our trial courts possess inherent authority to maintain the status quo and to prevent irreparable harm. See e.g. Art. V, Sec. 4, Fla. Const. ("The circuit courts shall have... the power to issue ... all writs necessary or proper to complete exercise of their jurisdiction"); State Dep't of Health and Rehab. Servs. v. Hollis, 439 So.2d 947 (Fla. 1st DCA 1983)(courts have inherent power to do all things reasonably necessary for the administration of justice). Especially in the context of children, our trial courts have a continuing responsibility to vigilantly protect the welfare and best interests of the child. See Brown v. Ripley, 119 So.2d 712 (Fla. 1st DCA 1960). Here, the trial judge was faced with a situation where a child had been placed with a loving and competent caregiver since birth, and thereafter under suspect circumstances was abruptly removed from that caregiver, the only mother he had ever known, to be placed with strangers.⁴ It is presumptively in the best interests of a child to remain in the home where he or she has spent the majority of his or her life. See Rumph v. V.D., 667 So.2d 998 (Fla. 3d DCA 1996); S.J. ex rel. M.W. v. W.L., 755 So.2d 753 (Fla. 4th DCA 2000). Clearly there was no error in the trial court's finding that it was in the best interests of J.C. to remain with...