Simms v. State, Dept. of Health & Rehabilitative Services, 92-1629

• Court: Court of Appeal of Florida (US)
• Writing for the Court: Before SCHWARTZ; GERSTEN; JORGENSON; SCHWARTZ; BARKDULL
• Citation: 641 So.2d 957
• Parties: 19 Fla. L. Weekly D1859 Samantha SIMMS, a/k/a Ellen B. Simms, a/k/a Samantha Goldfinger, a/k/a Ellen Barbara Goldfinger, Appellant, v. STATE of Florida, DEPARTMENT OF HEALTH & REHABILITATIVE SERVICES, and Robert Christian, Guardian Ad Litem, Appellees.
• Docket Number: No. 92-1629,92-1629
• Decision Date: 07 September 1994

Page 957

641 So.2d 957

19 Fla. L. Weekly D1859

Samantha SIMMS, a/k/a Ellen B. Simms, a/k/a Samantha

Goldfinger, a/k/a Ellen Barbara Goldfinger, Appellant, v. STATE of Florida, DEPARTMENT OF HEALTH & REHABILITATIVE

SERVICES, and Robert Christian, Guardian Ad Litem,

Appellees.

No. 92-1629.

District Court of Appeal of Florida,

Third District.

Sept. 7, 1994.

Rosemary B. Wilder, Fort Lauderdale, and Gail L. Grossman, Miami, for appellant.

White & Case, Stephen M. Corse, Eric S. Roth and Hillary B. Rossman, Miami, for appellees.

Virginia Lee Stanley, Miami, and Barbara Green, Coral Gables, for the Juvenile Justice Attys. Ass'n, as amici curiae.

Christina A. Zawisza and Margaret F. Zehren, Miami, for the Legal Services of Greater Miami, Inc., as amici curiae.

Young, Franklin, Berman & Karpf, Barry S. Franklin, North Miami Beach, for the Florida Chapter of the American Academy of Matrimonial Lawyers, as amicus curiae.

Robert A. Butterworth, Atty. Gen., and Louis F. Hubener, Asst. Atty. Gen., for the State of Fla., Dept. of Legal Affairs, as amici curiae.

Greenberg, Traurig, Hoffman, Lipoff, Rosen & Quentel, Steven M. Goldsmith and Charles M. Auslander, Miami, for the Guardian Ad Litem Programs for the First, Second, Fifth, Seventh, Eighth, Ninth, Eleventh, Twelfth, Thirteenth, Fourteenth, Fifteenth, Eighteenth, Nineteenth and Twentieth Judicial Circuits, as amici curiae.

Before SCHWARTZ, C.J., and BARKDULL, HUBBART, NESBITT, BASKIN, JORGENSON, COPE, LEVY, GERSTEN and GODERICH, JJ.

EN BANC

GERSTEN, Judge.

This is an appeal from a final order terminating the parental rights of appellant, Samantha Simms (the mother). We affirm.

Turning first to the merits of the case, we determine that the trial court's order is supported by clear and convincing evidence of the mother's severe neglect of her minor children. Parental rights can be terminated only upon a showing, by clear and convincing evidence, of neglect, abuse, or abandonment. Sec. 39.464, Fla.Stat. (Supp.1992); In re R.W., 495 So.2d 133, 135 (Fla.1986).

The evidence demonstrated that the mother's neglect of the children included: inadequate medical attention necessitating her infant's hospitalization for extreme jaundice, gross malnourishment causing her infant to weigh less at nine weeks of age than at birth, and inadequate supervision leading to her child's skull fracture due to a fall from a second floor apartment. Additionally, the mother failed to substantially comply with the performance agreements which she and the Department of Health and Rehabilitative Services (HRS) entered into to accomplish family reunification. Sec. 39.467(3)(e), Fla.Stat. (Supp.1992).

Moreover, testimony by the court-appointed psychologist, a psychiatrist and two social workers constituted clear and convincing evidence supporting the trial court's finding that the children will be neglected if returned to the mother. See Padgett v. Department of Health & Rehabilitative Servs., 577 So.2d 565, 571 (Fla.1991). The trial court specifically found that the mother's personality disorder prevents her from meeting the ordinary and special needs of her children who require extensive medical and psychological care, and that the mother has no prospect for improvement in the foreseeable future.

Turning next to the constitutional issue this case presents, we must determine whether section 39.464, Florida Statutes (Supp.1992), violates the doctrine of separation of powers as articulated in Article II, section 3 of the Florida Constitution. This section allows HRS, a licensed child-placing agency or a guardian ad litem to "petition for the termination of parental rights." We conclude that this statutory provision does not violate Florida's constitutional provision addressing the doctrine of separation of powers.

Factually, a lay guardian ad litem, Robert Christian, filed a petition for termination of parental rights. The petition alleged that both the mother and father's parental rights should be terminated because they abused and neglected their two minor children, ages five and six. Prior to trial, the husband voluntarily relinquished his rights to the children and the case proceeded against the mother only.

During the proceedings, HRS was represented by a pro bono guardian ad litem attorney, Stephen M. Corse, who was specially appointed through the Guardian Ad Litem Program of the Eleventh Judicial Circuit. After a nine day trial, the trial court granted the petition to terminate the mother's parental rights and entered a detailed order with specific findings of fact and conclusions of law supporting termination.

Article II, section 3 of the Florida Constitution, divides government into three separate and distinct branches and provides that "[n]o person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein." This section, known as the "separation of powers" clause, embodies one of the fundamental principles of our federal and state constitutions and prohibits the unlawful encroachment by one branch upon the powers of another branch. Chiles v. Children A, B, C, D, E, & F, 589 So.2d 260, 263-64 (Fla.1991); Pepper v. Pepper, 66 So.2d 280, 284 (Fla.1953).

However, separation of powers does not mean that every governmental activity is classified as belonging exclusively to a single branch of government. State v. Johnson, 345 So.2d 1069, 1071 (Fla.1977) (citing State v. Atlantic Coast Line R.R., 56 Fla. 617, 632, 47 So. 969, 974 (1908)). The prohibition of Article II, section 3 is directed only at those powers which belong exclusively to a single branch of government. Atlantic Coast Line R.R., 56 Fla. at 631, 47 So. at 974.

The threshold issue is whether the power to protect the welfare of children and terminate a parent's rights under Chapter 39, Florida Statutes (1991), is an exclusive power of one branch of government and is therefore subject to the separation of powers clause. If it is, any exercise of that exclusive power by another branch is unconstitutional. See, e.g., State v. Bloom, 497 So.2d 2, 3 (Fla.1986). If a power is not exclusive to one branch, the exercise of that non-exclusive power is not unconstitutional. See, e.g., Department of Health & Rehabilitative Servs. v. Hollis, 439 So.2d 947, 948 (Fla. 1st DCA 1983).

The exclusive powers of the three branches of government are generally not delineated in the Constitution or in statutes. Florida Motor Lines, Inc. v. Railroad Comm'rs, 100 Fla. 538, 544, 129 So. 876, 881 (1930). These powers are determined by considering the language and intent of the Constitution as well as the history, nature, powers, limitations and purposes of our form of government. Id.; see Atlantic Coast Line R.R., 56 Fla. at 632, 47 So. at 974. Historically, the courts have possessed inherent and statutory authority to protect children. The circuit court inherited the common law jurisdiction of the courts of chancery in which minors were wards of the court and the court had inherent power to protect them. Cone v. Cone, 62 So.2d 907, 908 (Fla.1953); Pollack v. Pollack, 159 Fla. 224, 226, 31 So.2d 253, 254 (1947); In re J.S., 444 So.2d 1148, 1149-50 (Fla. 5th DCA 1984). Section 39.40(2), Florida Statutes (1991), codifies the court's inherent power to exercise continuing jurisdiction over dependent children.

The inherent authority of the courts to protect children extends to the appointment of guardians ad litem for unrepresented children. James v. James, 64 So.2d 534, 536 (Fla.1953). The legislature codified this inherent power in 1975, requiring the court to appoint a guardian ad litem in cases involving child abuse or neglect. Sec. 415.508, Fla.Stat. (1991).

The fact that one branch has inherent authority does not necessarily mean that all others are excluded. Petition of Florida State Bar Ass'n, 145 Fla. 223, 227, 199 So. 57, 59 (1940). The legislature created HRS to be the executive department charged with the protection of dependent children. In re J.S., 444 So.2d at 1150. The authority of HRS to protect children stems either from its enabling act, in chapter 409, Florida Statutes (1991), see Sec. 409.145, or a court order divesting the court's exclusively original jurisdiction. Division of Family Servs. v. State, 319 So.2d 72, 76 (Fla. 1st DCA 1975).

Indeed, a number of Florida statutes delegate overlapping and concurrent power over matters relating to child custody and commitment proceedings to both HRS and to the circuit courts. Hollis, 439 So.2d at 948; see, e.g., Secs. 39.001, 39.40, 39.404, 39.41, 409.145, Fla.Stat. (1991); see generally In re J.S., 444 So.2d at 1150.

To determine whether the particular activity is an exclusive power of one branch of government, we can also consider the essential nature and effect of the governmental activity to be performed. Florida Motor Lines, Inc., 100 Fla. at 544-45, 129 So. at 881. Thus, a petition for termination of parental rights is not a criminal prosecution which must be brought and prosecuted by the state. See Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). It is a civil action initiated to protect the rights of abused, neglected or abandoned children. Secs. 39.46-.474, Fla.Stat. (1991).

Neither the language and intent of the Constitution nor consideration of the history and purpose of our government indicate that the authority to protect children and to terminate parental rights is an exclusive and pure power which the Constitution requires to be confined to a single branch of government. See generally In re C.B., 561 So.2d 663, 666 (Fla. 5th DCA 1990); In re J.S., 444 So.2d at 1150; In re J.R.T., 427 So.2d 251, 252-53 (Fla. 5th DCA 1983); Hollis, 439 So.2d at 948-49. Where a power conferred by statute is not an exclusively held power exercisable only by a single branch of government, a grant of concurrent power does not violate the Constitution.

A sister court has determined that the...