L.Y. v. Department of Health and Rehabilitative Services

• Decision Date: 02 July 1997
• Docket Number: Nos. 96-2384,96-2438,s. 96-2384
• Citation: 696 So.2d 430
• Parties: 22 Fla. L. Weekly D1643 L.Y. and Melody, Appellants, v. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellee.
• Court: Florida District Court of Appeals

Page 430

696 So.2d 430

22 Fla. L. Weekly D1643

L.Y. and Melody, Appellants, v. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellee.

Nos. 96-2384, 96-2438.

District Court of Appeal of Florida Fourth District.

July 2, 1997.

David S. Bazerman, Fort Lauderdale, for Appellant-L.Y.

James C. Blecke and Karen Gievers, Miami, for Appellant-Melody.

Carol A. Gart and Billi Pollack of Department of Children and Families, Fort Lauderdale, for appellee.

GLICKSTEIN, Judge.

This is an appeal from an order dismissing L.Y.'s dependency case and terminating the juvenile division's jurisdiction over her. While Melody was permitted by the trial court to intervene, there is no order of dismissal as to her case. Both have reached 18 years of age. Melody, who is incapacitated, intervened out of fear that L.Y.'s case will affect hers.

L.Y.'s appeal involves a judicial fight, not a legislative one, over the issue of judicial review of HRS Services to dependent children who reach 18, but continue to receive services from HRS. Unfortunately for L.Y., the fight is in the wrong arena as the legislature has not provided for judicial review of these services still being rendered to a now 18 year old, previously determined to be dependent, when that individual may not be incapacitated. The conscientious, concerned trial court properly held that the laws of Florida currently do not permit retention of continuing juvenile jurisdiction and review until the individual is 21. The California legislature has authorized the juvenile courts of that state to retain jurisdiction over a child found to be dependent until that individual attains the age of 21 years. See California Welfare and Institutions Code, § 303. The Florida legislature has not yet given the juvenile courts of this state a similar authorization.

Here, the trial judge very reluctantly entered its order, seeing no way around it, in light of the clear language of chapter 39, Florida Statutes. We reluctantly agree.

In our view, section 409.145(4), Florida Statutes, does not permit an interpretation argued by appellants whereby we would extend juvenile jurisdiction to L.Y. by reading it in para materia with section 39.40(2), Florida Statutes. Nor do sections 39.41(2)(a)10 and 39.45, Florida Statutes, change our view. Section 39.01(10), Florida Statutes, defines children as individuals under the age of 18. See also Gore v. Chapman, 143 Fla. 438, 196 So. 840 (1940); Simms v. State, Dep't of Health & Rehabilitative Servs., 641 So.2d 957 (Fla. 3d DCA), rev. denied, 649 So.2d 870 (Fla.1994).

Thus, we affirm, albeit without prejudice to L.Y.'s seeking appointment of a guardian pursuant to chapter 744, Florida Statutes, if there is some incapacity which could be shown.

Such petition should be considered by the same circuit judge who is familiar with L.Y.'s dependency proceeding. He is a circuit judge; and his assignment to the juvenile division should not be a barrier to his sitting by special assignment upon appropriate order of the chief judge. See In re Guardianship of Bentley, 342 So.2d 1045 (Fla. 4th DCA 1977); In the Interest of Wendy Dee Peterson, 364 So.2d 98 (Fla. 4th DCA 1978); Maugeri v. Plourde, 396 So.2d 1215 (Fla. 3d DCA 1981)

Section 744.369, Florida Statutes, provides for judicial review of guardian reports when a guardianship has been established pursuant to chapter 744. Any adult person may file a petition to determine that an individual is incapacitated. § 744.3201, Fla. Stat. If there is a determination that the individual is incapacitated a guardian may be appointed pursuant to section 744.344. The circuit court then reviews the condition of the ward annually, or more frequently by petition, pursuant to sections 744.369 and 744.3715.

The court may appoint a guardian on its own motion if no petition for appointment of a guardian has been filed at the time of the order determining incapacity. § 744.3031, Fla. Stat.

Moreover, an 18-21 year old receiving benefits can seek judicial review of any final action of HRS that adversely affects that individual pursuant to the Administrative Procedure Act, section 120.68, Florida Statutes, which states:

(1) A party who is adversely affected by final agency action is entitled to judicial review....

(2) Except in matters for which judicial review by the Supreme Court is provided by law, all proceedings for review shall be instituted by filing a petition in the district court of appeal in the appellate district where the agency maintains its headquarters or where the party resides.

See Department of Health and Rehabilitative Servs. v. A.S., 648 So.2d 128 (Fla.1995) (holding review of final action of HRS is pursuant to section 120.68).

The intervenor, Melody, like L.Y., is a dependent child turned 18; however, she is incapacitated. While HRS says it is premature to decide her case as no effort has been made to terminate judicial review of the services being rendered to her, hopefully, it will not attempt to do so.

The Florida Supreme Court has said: "Courts are charged under the law with the duty and obligation of caring for infants and incompetents upon the theory that they are wards of the court." Turner v. Andrews, 143 Fla. 88, 196 So. 449, 450 (1940).

KLEIN and PARIENTE, JJ., concur.

PARIENTE, J., concurs specially with opinion.

PARIENTE, Judge, concurring specially.

I concur in Judge Glickstein's well-reasoned majority opinion. I write to address the concerns of the trial judge in this case regarding the consequences to foster children of terminating the juvenile court's jurisdiction, with the hope that the legislature will heed these concerns.

Unfortunately, as the majority notes, the plain language of subsection 39.40(2), Florida Statutes (1995), provides for juvenile court jurisdiction only until the child reaches age 18. ¹ We are without authority to vary the clear language of unambiguous legislative enactments. See Holly v. Auld, 450 So. 2d 217, 219 (Fla.1984). This principle is "not a rule of grammar; it reflects the constitutional obligation of the judiciary to respect the separate powers of the legislature." State v. Brigham, 694 So.2d 793, 797 (Fla. 2d DCA 1997). Therefore, however desirable it would be to extend the jurisdiction of the juvenile court, the solution lies with the legislature.

I agree, however, with the argument advanced by L.Y. and Melody's conscientious counsel that juvenile court jurisdiction should be co-extensive with the obligation of the Department ² to provide services to individuals who have previously been placed in foster care. As Judge Birken points out in his detailed order in L.Y.'s case, "[L.Y.] did not ask to be abused and she did not ask to be placed under the supervision of the Court and HRS."

It should be a simple matter for the legislature to amend subsection 39.40(2) to extend the jurisdiction of the juvenile court to be co-extensive with the Department's responsibilities under Chapter 409. It is not only logical but also practical, that the juvenile judge who declared L.Y. and Melody to be dependent, and who has supervised their cases since that time, should continue with that supervision. This solution would also be cost-effective because the system for periodic review of each child's case is already in place. See § 39.41(2)(a)10 (providing for court review of the status of foster care children in independent living situations pursuant to section 39.453); § 39.453 (providing for continuing jurisdiction of juvenile court to review status of foster care children, generally). As Judge Karlan points out, it is the juvenile court judge who has the most familiarity and expertise with Chapter 39 and Chapter 409. See Order Granting Child's Motion for Court to Retain Jurisdiction in In re J.O., No. 92-16101 (Fla. 11th Cir. Ct. June 2, 1997).

For individuals like L.Y. and Melody, who have previously been committed to the legal custody of the Department for placement in foster care as dependent children, subsection 409.145(3)(a) authorizes the Department to "continue to provide the services of the children's foster care programs to individuals 18 to 21 years of age" so long as the individual is enrolled in an approved educational program. Once the Department begins to provide services, its obligation is not voluntary. Subsection 409.145(3)(b) mandates that the services continue so long as the individual complies with the statutory requirements.

Pursuant to subsection 409.165(4)(a), state foster care funds "shall be used to establish a continuum of an array of independent living services to assist adolescent foster children to develop skills that will contribute to a successful transition to adulthood." As part of the continuum of independent living services, the Department is mandated to establish an independent living program for minors 16 years of age or older to live "independent of the daily care and supervision of a responsible adult." § 409.165(4)(b). The goal of the extension of these services after age 18 is to assist the individual in attaining total independence from the Department's supervision. ³

The trial judge's concern in this case is that there will be no effective oversight to ensure that the Department provides the services to L.Y. and Melody that it is obligated to provide. This concern has been echoed by Judge Karlan. See Order Granting Motion to Retain Jurisdiction in In re J.O., No. 92-16101 (Fla. 11th Cir. Ct. June 2, 1997).

The majority suggests a procedure, utilizing the guardianship statutes, whereby the juvenile judge could continue to supervise cases where the individual is shown to have some incapacity. While guardianships for those children who would qualify under Chapter 744 may be a solution to some of the cases, foster care children who do not qualify under Chapter 744 would remain unprotected.

The trial judge entered a detailed order in the case of L.Y., after stating that he "anguished over this case every day for many...