Dep't Of Children v. D.B.D, 4D09-4862
| Decision Date | 25 August 2010 |
| Docket Number | No. 4D09-4862,4D09-4862 |
| Parties | DEPARTMENT OF CHILDREN AND FAMILIES, Appellant, v. D.B.D., the father, Appellee. |
| Court | Florida District Court of Appeals |
Bill McCollum, Attorney General, Tallahassee, and Thomas B. Arden, Assistant Attorney General, Fort Lauderdale, for appellant.
No brief filed for appellee.
The Florida Department of Children and Families ("DCF") appeals an order dismissing an ex parte injunction entered against a father of minor children pursuant to section 39.504, Florida Statutes (2009). At a hearing required by due process, DCF failed to justify the continuation of the injunction, so we affirm the order of the circuit court.
The mother and the father are both attorneys. The mother is an attorney for DCF in Dade County. The mother and the father had an ongoing, contentious divorce case in Broward County. In the divorce case, the family court judge ruled against the mother on some of the allegations she made against the father. For example, in March, 2009, the judge denied the mother an injunction she had sought on behalf of her children.
On August 21, 2009, the mother filed a pro se emergency motion to suspend visitation. Attached to the motion was an affidavit from a psychologist. The mother never called this motion up for hearing before the family court judge.
On September 18, 2009, DCF filed a petition for a section 39.504 injunction in Broward County. Subsection 39.504(1), Florida Statutes (2009), authorizes the department to seek an injunction to "prevent any act of child abuse" at "any time after a protective investigation has been initiated pursuant to part III" of Chapter 39. The statute contemplates that the injunction remedy will be used in conjunction with a dependency proceeding in order to protect children from acts of abuse.
See id. The DCF petition contained many of the same allegations that the mother had included in her August 21 emergency motion to suspend visitation; also, the petition refers to the same psychologist's affidavit that the mother had used to support her August 21 motion.
On the same day the petition was filed, a hearing was held before Judge Carlos Rebollo, who was not the family court judge familiar with the hostile dynamics of this family. The father was given two hours telephone notice of the hearing. Because he was in the Florida Keys, he asked for permission to appear by telephone. DCF informed the court of the father's request. DCF objected to the father's appearance by telephone, so Judge Rebollo did not allow it. He instructed his bailiff to "sound the halls" for the father, and, when no one responded, the judge proceeded with the hearing. In addition to the mother, two lawyers and three DCF representatives were present. None of these professionals advised Judge Rebollo of the pending proceedings in family court and he did not ask. The short hearing consisted primarily of the judge reading an affidavit and a brief proffer of facts by a DCF attorney.1 One DCF representative was concerned that the father had sent him a letter threatening to sue him.
The DCF attorney convinced the judge to enter an injunction that remained in effect until further order of the court, without holding any further hearing. Section 39.504(2) provides that if a judge issues "an immediate injunction," "the court must hold a hearing on the next day of judicial business to dissolve the injunction or to continue or modify it." The DCF attorney called the court's attention to this section, but suggested that it did not apply. The attorney provided the judge with a preprinted form injunction for his signature.
At the end of the September 18 hearing, Judge Rebollo entered an injunction that took effect immediately, so the mother could leave court with it in hand. The injunction did not schedule a hearing "the next day of judicial business." Among other things, the injunction ordered the father to have no direct or indirect contact with his children and prevented him from going within 500 feet of the children's current residence and school. Even though Judge Rebollo had never seen or heard from the father, the injunction also ordered the father to undergo two evaluations—for substance abuse and by a psychologist.
To anyone familiar with the concept of due process, the abbreviated September 18 "hearing," consuming but eight pages of transcript, is shocking. Three attorneys were present—Ali Vazquez on behalf of DCF, Lee Seidlin for the Guardian Ad Litem program, and the mother. None of the attorneys made Judge Rebollo aware of the ongoing proceedings in family court. None of the attorneys mentioned the mother's August 21 emergency motion. None of the attorneys brought up the mother's previous attempt to secure an injunction on behalf of the children, which was denied. DCF's pre-printed, standard form for a petition for a section 39.504 injunction provides an area to describe "any other paternity action, child support enforcement action, or dependency case that is either going on now or that happened in the past." There is no fill-in-theblank for an ongoing family court proceeding. The only reference in the petition to the divorce proceeding is a statement on page 5 that "[t]he mother and father are divorced." Even though Judge Rebollo imposed drastic conditions in the injunction—barring a father from his children and requiring that he submit to drug and psychological evaluations—no one at the hearing was concerned that the father have any input into the propriety of the injunction. A primary focus of DCF's attorney at the hearing was how to avoid further scrutiny of the injunction at a time when the person enjoined could have a meaningful opportunity to be heard.2
On October 20, 2009, Judge Marina Garcia-Wood, the family court judge, ordered the transfer of the injunction case to the family court because of the longstanding dissolution case pending there. On October 22, Judge Garcia-Wood held what she characterized as a subsection 39.504(2) hearing.
At the hearing, DCF took the position that it was the father's burden to present evidence since he sought to dissolve the injunction. Judge Garcia-Wood disagreed with this legal argument.
The DCF investigator who signed the September 18 petition had no firsthand knowledge about this case, the related dissolution action, or the allegations that she swore were "true and correct." She relied on information provided to her by her supervisor, the affidavit of a psychologist supplied by the mother, and police reports from March, 2009. She said that based on the March incident and another in August that there was an "increased pattern" of violence. She testified that DCF had not filed a dependency petition in the month since the injunction had been entered.
A second witness at the October 20 hearing was a DCF supervisor. She was aware that the mother had filed in the family court for an injunction in March, 2009, which was denied. She made the decision to proceed for an injunction under section 39.504, in part because it was an "available remedy." Judge Garcia-Wood asked why DCF sought the injunction under the statute when the mother had a remedy available to her in the pending family court case. The DCF supervisor's only response was that the "legislature has enabled the Department to be able to intervene regardless of the parent doing it or not doing it." Judge Garcia-Wood asked how often DCF had chosen to seek a section 39.504 injunction when no dependency proceedings were contemplated. The supervisor replied that this case was the first time she had done so.
DCF contends that at the October 20 hearing, Judge Garcia-Wood improperly placed the burden of proof on the Department to maintain the injunction. To reach this conclusion, DCF argues that the father was not entitled to an immediate hearing to dissolve the injunction. Even though the September 18 injunction issued immediately after the hearing, DCF asserts that this was not an "immediate injunction" for which the court was required to hold a hearing "on the next day of judicial business." § 39.504(2). DCF draws this conclusion from the first sentence of subsection 39.504(2), which says that "[n]otice shall be provided to the parties as set forth in the Florida Rules of Juvenile Procedure, unless the child is reported to be in imminent danger, in which case the court may issue an injunction immediately." DCF contends that its telephone call to the husband two hours prior to the hearing satisfied the requirement of Juvenile Rule...
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