Florida Dep't of Children & Families v. Y.C., 3D11–1899.

• Decision Date: 07 March 2012
• Docket Number: No. 3D11–1899.,3D11–1899.
• Parties: FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES, Petitioner, v. Y.C., mother, and Guardian Ad Litem Program, Respondents.
• Court: Florida District Court of Appeals

82 So.3d 1139

FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES, Petitioner,

v.Y.C., mother, and Guardian Ad Litem Program, Respondents.

No. 3D11–1899.

District Court of Appeal of Florida, Third District.

March 7, 2012.

Karla Perkins, Miami, for the Department of Children and Families.

Restivo and Reilly, Bernadette Restivo and Jessica Reilly, Key Largo, for respondent, Y.C.; Hillary S. Kambour, for respondent, Guardian Ad Litem Program.

Before SHEPHERD and EMAS, JJ., and SCHWARTZ, Senior Judge.

SCHWARTZ, Senior Judge.

The Florida Department of Children and Families seeks review of an order directing it to provide a Chapter 39 case plan and services for the mother Y.C. and her three children.¹ Unhappy with her situation, that of her children, and the fact that after investigation, DCF had previously determined her complaints did not warrant Department intervention, Y.C. filed a ‘private’ dependency petition ‘against’ herself and O.D., the children's father, in which she alleged that she and her children were at risk of harm based on O.D.'s various acts of violence.^2,3 Notwithstanding the DCF's decision, the GAL Program moved to have the trial court order the Department to file a case plan and provide services. DCF filed a limited appearance to object to that motion. A few days later, the GAL Program joined in Y.C.'s dependency petition. A month after that, with no trial conducted and no evidence presented, the court entered an order of dependency. The sole basis then or ever asserted for the order was the fact that Y.C. had defaulted and thus ‘admitted’ her own allegations of dependency. ⁴ DCF maintains that the order which followed, requiring the agency to provide a case plan and services,⁵ departed from the essential requirements of the law. We agree for several reasons, most significantly because the order was premised on a fundamentally invalid determination of dependency.⁶

First, we see no acceptable way for one to file a petition, acquiesce to the allegations of that petition, and thereby secure judicial relief. This is not a case or controversy and not, therefore, a basis for court action.⁷ The respondents base their position on the statutory language providing that “any ... person with knowledge of the facts alleged,” not excluding a parent, may file a petition for dependency. See § 39.501(1), Fla. Stat. (2010). Reliance on that language to support the order below, however, just makes no sense. See Sch. Bd. of Palm Beach Cnty. v. Survivors Charter Sch., Inc., 3 So.3d 1220, 1235 (Fla.2009) (“We are not required to abandon either our common sense or principles of logic in statutory interpretation.”). A scenario in which the same person asks the court to act and then admits the need for that action, without more, simply does not legally confer authority upon it to do so. Rather than presenting a legally cognizable proceeding, it involves merely an unopposed request for the assistance of the court in a similar request to the responsible agency. When as here, the agency has already declined that request, it is wholly improper for the court to intervene.⁸

More to the point, a valid dependency determination rests on a finding by the court of one or more of the conditions enumerated in section 39.01(15), Florida Statutes (2010).⁹ We reject the premise that the statutory obligation of a court to find that a child is dependent and make findings supporting that conclusion may be satisfied based on no more than a parent's “agreement” with herself.¹⁰ When the court makes a determination of dependency premised only on such a ‘default,’ this requirement is not met.

The Florida Rules of Juvenile Procedure addressing dependency proceedings provides two routes by which a determination of dependency may be accomplished—either by admission, see Fla. R. Juv. P. 8.325,¹¹ or by adjudicatory hearing. See Fla. R. Juv. P. 8.330.¹² Each ‘route’ however requires the trial judge to list the factual determinations relied on. See Fla. R. Juv. P. 8.332.¹³ Even in the case of an ‘admission’—which as we read that provision clearly envisions adverse parties coming to an agreement-the court's order must include “findings of fact specifying the act or acts causing dependency, by whom committed, and facts on which the findings are based.” See Fla. R. Juv. P. 8.325. With no evidence taken and no countervailing position advanced, there was no opportunity for the trial judge to make the crucial findings necessary to a valid dependency determination.^14,15,16 Without a valid dependency determination, the trial court acted in excess of its jurisdiction in directing DCF to provide the services ordered.^{17, 18}

Certiorari granted.

1. These children are O.D., Jr., born December 26, 1997; L.D., born August 25, 2000; and A.D., born May 11, 2003.

2. The petition recounted, among many other things, that Y.C. had sought and was granted a temporary domestic violence injunction, September 25, 2010. However in response to the investigation prompted by that action, Y.C. denied to a CPI that the children had witnessed any of the physical abuse being investigated and said she did not believe O.D. had placed the children at harm. The CPI report also reflects that Y.C. and the children had moved to an undisclosed location. On November 2, 2010, therefore, the very next day after Y.C. filed her petition, DCF closed its investigation, finding that the allegations of abuse had not been substantiated. The allegations of an earlier report of domestic violence had likewise been discounted by Y.C. herself to an investigating CPI.

3. The agency's conclusion was based on findings that (1) Y.C. had informed the CPI that the children did not witness any of the physical abuse alleged; (2) none of the children disclosed domestic violence between their respective mothers and O.D.; (3) Y.C. informed the CPI that she did not believe O.D. had placed the children in harm; and (4) Y.C. and her three children had relocated away from O.D.

4. The co-respondent father denied the allegations. That issue remains unresolved.

5. It is difficult to understand what those services may have been or what the case plan might have provided as the children were now living with the mother, and the father, the only alleged culprit, now has nothing to do with them.

6. We also agree that certiorari review is the appropriate vehicle for review. See Dep't of Corrs. v. Harrison, 896 So.2d 868, 869 (Fla. 5th DCA 2005) (“[T]he Department of Children and Families has successfully sought certiorari review in cases where a trial court allegedly exceeded its judicial authority by encroaching on the powers of the executive branch by ordering it to take some action not permitted under the law.”); see also Belair v. Drew, 770 So.2d 1164, 1166 (Fla.2000).

7. Lord v. Veazie, 49 U.S. (8 How.) 251, 255, 12 L.Ed. 1067 (1850), provides:

[A]ny attempt, by a mere colorable dispute, to obtain the opinion of the court upon a question of law which a party desires to know for his own interest or his own purposes, when there is no real and substantial controversy between those who appear as adverse parties to the suit, is an abuse which courts of justice have always reprehened, and treated as a punishable contempt of court.

Likewise, in Aetna Life Insurance Co. of Hartford, Connecticut v. Haworth, 300 U.S. 227, 240–41, 57 S.Ct. 461, 81 L.Ed. 617 (1937), the Court said:

The Constitution (article 3, s2) limits the exercise of the judicial power to ‘cases' and ‘controversies.’

...

A ‘controversy’ in this sense must be one that is appropriate for judicial determination. Osborn v. Bank of United States, 9 Wheat. 738, 819, 6 L.Ed. 204.... The controversy must be definite and concrete, touching the legal relations of parties having adverse legal interests. [e.s.].

See Bryant v. Gray, 70 So.2d 581, 584 (Fla.1954) (“[T]here must be a bona fide dispute between the contending parties as to a present justiciable question.”); A.G. v. Dep't of Children & Family Servs., 932 So.2d 311, 313 (Fla. 2d DCA 2006) (“It is the function of a judicial tribunal to decide actual controversies” (quoting Montgomery v. Dep't of Health & Rehabilitative Servs., 468 So.2d 1014, 1016–17 (Fla. 1st DCA 1985))); Ferreiro v. Phila. Indem. Ins. Co., 928 So.2d 374, 377 (Fla. 3d DCA 2006) (“To satisfy the requirement of standing, the plaintiff must show that a case or controversy exists between the plaintiff and the defendant, and that such case or controversy continues from the commencement through the existence of the litigation.”); Collins v. Gov't Emp. Ins. Co., 922 So.2d 353, 353 (Fla. 3d DCA 2006) (“To have standing the plaintiff must show that a case or controversy exists between that plaintiff and the defendant.”).

8. If, as here, the court on its own motion agrees to require executive action which is otherwise within the executive agency's own discretion, the doctrine requiring separation of powers is directly invoked and violated. As we stated in Office of State Attorney for Eleventh Judicial Circuit v. Polites, 904 So.2d 527, 532 (Fla. 3d DCA 2005):

Article II, section 3, of the Florida Constitution provides that:

The powers of the state government shall be divided into legislative, executive and judicial branches. No person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein.

“Under the separation of powers doctrine ‘no branch may encroach upon the powers of another.’ See Chiles v. Children A, B, C, D, E, and F, 589 So.2d 260, 264 (Fla.1991). When a court interferes with an executive agency's discretion in spending its appropriate funds, it is encroaching on the powers of the agency. See, e.g., Dep't of Corr. v. Grubbs, 884 So.2d 1147, 1148 (Fla. 2d DCA 2004). Judges may not direct an executive agency to spend its money in a particular way. See Brown v. Feaver, 726 So.2d 322, 325 (Fla. 3d DCA 1999).” Office of State Attorney for Eleventh Judicial...