STATE, DEPT. OF CHILDREN & FAMILY SERVICES v. LG

• Decision Date: 26 December 2001
• Docket Number: No. 1D01-1984.,1D01-1984.
• Citation: 801 So.2d 1047
• Parties: STATE of Florida, DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Petitioner, v. L.G. and L.G., parents of M.G., a child, Respondents.
• Court: Florida District Court of Appeals

801 So.2d 1047

STATE of Florida, DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Petitioner, v. L.G. and L.G., parents of M.G., a child, Respondents.

No. 1D01-1984.

District Court of Appeal of Florida, First District.

December 26, 2001.

Lori Lee Fehr, Assistant District Legal Counsel, Pensacola, for Petitioner.

John Jay Gontarek of John Jay Gontarek, P.A., Ft. Walton Beach, Attorney for Respondent, Father. Michael A. Flowers, Esquire of Jones and Flowers, Niceville, Attorney for Respondent, Mother.

BENTON, J.

The Department of Children and Family Services (the Department) has filed a petition for writ of certiorari asking us to quash a circuit court order authorizing the custodial parent of a dependent child to move with her child to Georgia. Invoking Article III of the Interstate Compact on the Placement of Children (ICPC), the Department complains of the lack of written notice from Georgia child welfare authorities "to the effect that the proposed placement does not appear to be contrary to the best interests of the child." § 409.401, art. III(d), Fla. Stat. (2000). But the ICPC requires no such notice when a Florida court has decided against foster care and adoption in favor of leaving a dependent child with her mother, and later rules that mother and child are free to move to another state. We therefore deny the petition.

I.

After M.G.'s father was arrested on charges of sexually abusing her, he was released pretrial, on condition that he move out of the home he had shared with M.G. and her mother, and have no further contact with the child, then two and a half years old. Thereafter, the Department filed a shelter petition under section 39.402, Florida Statutes (2000), alleging that, about a month later, the father had entered the former family home at 7:45 a.m., and stayed for approximately ten minutes. The circuit court denied the shelter petition. In doing so, however, the circuit court ordered not only that the father have no contact with the child but also that he stay away from her residence altogether. The circuit court also ordered the mother not to permit the father to have contact with M.G., and that, on the specified conditions, M.G. remain in her mother's custody. The Department subsequently filed a dependency petition under section 39.501, Florida Statutes (2000). Mother and father thereafter consenting, the circuit court entered an order adjudicating the child dependent. M.G. remained in her mother's custody pending the disposition hearing, after which the trial court's order of disposition placed her (or continued her placement) in the care, custody, and control of her mother. M.G. was in her mother's custody throughout the proceedings below. The Department has never had custody of M.G.

On March 12, 2001, the Department filed two motions with the trial court seeking emergency review of M.G.'s placement and expedited compliance with purported requirements of Article III of the ICPC. The motions alleged that both parents intended to move to Georgia, where M.G. and her mother would live with his parents, while M.G.'s father would live with his brother at another location. The state had by then declined to prosecute the father. Acting on these motions on March 13, 2001, the trial court ordered that M.G. not be removed from the territorial jurisdiction of the court.

The parents filed separate motions on April 4, 2001, for permission for mother and child to relocate to Georgia, alleging that the mother could obtain employment in Georgia; that she was currently unemployed and relying on assistance from friends; that three weeks had elapsed since the prior order but that no steps had been taken to meet any ICPC requirements; and that it was in the best interest of the child for her and her mother to relocate. On April 12, 2001, the trial court entered an order permitting M.G. and her mother to move to Georgia "under [continued] Protective Services Supervision," although, at the request of the Department, the trial court stayed the order so the Department could file a motion for rehearing.

The Department did file an emergency motion for rehearing on April 18, 2001, asking the trial court to rescind the order authorizing relocation and to place M.G. in the Department's custody. This motion alleged that the order authorizing relocation to Georgia violated Article III of the ICPC because child welfare authorities in Georgia had not yet approved the placement. The motion indicated that, although Georgia authorities had agreed to accept an ICPC request, Georgia had not yet acted on the Department's request for supervision. At a hearing held the day the emergency motion for rehearing was filed, the circuit court decided that Article III of the ICPC did not apply. On May 7, 2001, the trial court entered an order denying the motion for rehearing, reiterating that the father was not to have contact with the child.

II.

The Department filed the notice of appeal we have treated as its petition for writ of certiorari on May 8, 2001, within thirty days of the trial court's order originally granting the parents' motions for permission for M.G. and her mother to relocate to Georgia. That the petition was filed the day after entry of the order denying the motion for rehearing was immaterial: a motion for rehearing of an interlocutory order does not stay or delay rendition. See Wagner v. Bieley Wagner & Assocs., 263 So.2d 1, 3-4 (Fla.1972)

; Nationwide Ins. Co. v. Forrest, 682 So.2d 672, 673 (Fla. 4th DCA 1996) (order setting aside default and default judgment); Home News Publ'g. Co. v. U-M Publ'g., Inc., 246 So.2d 117, 118-19 (Fla. 1st DCA 1971) (order denying motion to dismiss for improper venue). Cf. Bd. of County Comm'rs v. Grice, 438 So.2d 392, 394 (Fla. 1983) (order dismissing complaint for improper venue was final order as to which motion for rehearing was authorized). Filed within thirty days of the original order, the petition for writ of certiorari was timely. It is also clear that the issue concerning applicability of Article III of the ICPC arose before the original order was entered.

III.

A petitioner who seeks relief by "`writ of certiorari must show either that the trial court exceeded its jurisdiction or [otherwise] departed from the essential requirements of law. Steele v. Davis, 667 So.2d 264, 264 (Fla. 1st DCA 1995).' Smith v. Smith, 764 So.2d 650, 651 (Fla. 1st DCA 2000)." St. Paul Fire and Marine Ins. Co. v. Marina Bay Resort Condo. Ass'n, 794 So.2d 755, 756 (Fla. 1st DCA 2001). "In addition to showing such a departure, the petitioner must demonstrate injury of a kind that cannot be remedied on appeal from final judgment. See Bared & Co. v. McGuire, 670 So.2d 153, 156 (Fla. 4th DCA 1996)

." Id. We have quoted with approval the proposition that "in civil cases certiorari is rarely granted because the petitioner generally cannot show that any potential injury cannot be rectified on appeal." Naghtin v. Jones, 680 So.2d 573, 577 (Fla. 1st DCA 1996) (quoting Riano v. Heritage Corp. of S. Fla., 665 So.2d 1142, 1145 (Fla. 3d DCA 1996)).

IV.

Assuming for purposes of decision that the grounds urged are otherwise cognizable on petition for writ of certiorari, we reject the Department's central contention on its merits. We cannot agree that the order on review departs from the essential requirements of law for failure of child welfare authorities in Georgia to approve the relocation in accordance with Article III of the ICPC. Because her mother had lawful custody of M.G. at all pertinent times, including before she ever sought to relocate—without effecting any change in M.G.'s custody—to Georgia, Article III of the ICPC does not apply.

A.

Article III of the ICPC does not apply because M.G.'s proposed relocation to Georgia does not entail "placement" as statutorily defined, much less placement into "foster care or ... [for] possible adoption." Article III provides:

ARTICLE III. Conditions for Placement

(a) No sending agency shall send, bring, or cause to be sent or brought into any other party state any child for placement in foster care or as a preliminary to a possible adoption unless the sending agency shall comply with each and every requirement set forth in this article and with the applicable laws of the receiving state governing the placement of children therein.

(b) Prior to sending, bringing, or causing any child to be sent or brought into a receiving state for placement in foster care or as a preliminary to a possible adoption, the sending agency shall furnish the appropriate public authorities in the receiving state written notice of the intention to send, bring, or place the child in the receiving state.

. . . .

(d) The child shall not be sent, brought, or caused to be sent or brought into the receiving state until the appropriate public authorities in the receiving state shall notify the sending agency, in writing, to the effect that the proposed placement does not appear to be contrary to the interests of the child.

§ 409.401, Fla. Stat. (2000) (emphasis supplied). Because no placement of the kind contemplated by Article III(a) and (b) is at issue, the requirements of Article III(d) do not apply to M.G.'s relocation to Georgia with her mother.

The ICPC defines placement as "the arrangement for the care of a child in a family free or boarding home or in a child-caring agency or institution." § 409.401, art. II(d), Fla. Stat. (2000); see Tara S. v. Superior Court, 13 Cal.App.4th 1834, 17 Cal.Rptr.2d 315, 316 (1993)

. As thus statutorily defined, placement ordinarily means a change of custody, not a custodian's relocation. M.G.'s placement with her mother was intrastate, not interstate. The order under review effects no change in custody.¹ Article III of the ICPC creates no requirement that Georgia add its retrospective approval to Florida's decision that M.G. should remain in her mother's custody, in order for mother and daughter to move to Georgia.

The ICPC's provisions...