State, Dept. of Health and Rehabilitative Services v. Hollis, AL-100

• Decision Date: 13 October 1983
• Docket Number: No. AL-100,AL-100
• Parties: STATE of Florida, DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellant, v. Lee Francis HOLLIS, et al., Appellees.
• Court: Florida District Court of Appeals

Page 947

439 So.2d 947

STATE of Florida, DEPARTMENT OF HEALTH AND REHABILITATIVE

SERVICES, Appellant, v. Lee Francis HOLLIS, et al., Appellees.

No. AL-100.

District Court of Appeal of Florida,

First District.

Oct. 13, 1983.

James A. Sawyer, Jr., Dist. III Legal Counsel, Ocala, for appellant.

No appearance for appellees.

ERVIN, Chief Judge.

Appellant, the Department of Health and Rehabilitative Services (HRS), seeks reversal of an order of the lower court directing HRS to file a petition for the permanent commitment of three minor children adjudicated by the court to be dependent. HRS contends the court was without jurisdiction to enter that order and that the court's action violated Florida's Constitutional provision of separation of powers. We disagree and affirm.

The record shows that in 1979, appellee Hollis' two children were found to be dependent and were placed in foster care. The next year HRS sought permanent commitment of those children so that they might be adopted. That petition was denied and Hollis was given temporary custody of the children. Later proceedings were held and finally, on July 7, 1980, Hollis, who was then expecting her third child, was given custody subject to the terms of a stipulation with HRS in which she agreed to maintain an adequate place of residence for the children.

Hollis failed to comply with the conditions of the stipulation and, in November of 1981, the children, who were unwashed and scantily clothed despite the cold, were found to be living in squalid conditions in a house having no stove, refrigerator, bathroom, hot water, or heat. HRS again filed a dependency petition on behalf of all three children and, on December 9, 1981, the court granted that petition.

On February 8, 1982, the court, noting Hollis' complete failure to comply with the conditions under which she was granted custody of her children in 1980, concluded that further attempts to restore custody to Hollis would be useless. Accordingly, the court appointed counsel to represent Hollis and ordered HRS to commence permanent commitment proceedings by filing a petition for such commitment within 30 days.

HRS urges that the court had no jurisdiction to order it to file a petition for permanent commitment, primarily because of the doctrine of separation of powers. We must reject this argument in light of our recent opinion in In re T.G.T., 433 So.2d 11, (Fla. 1st DCA, 1983), which held that the court had the statutory power to so act. Faced in T.G.T. with a factual situation similar to that before us, we there stated:

The issue before us is whether a circuit judge may on his own motion initiate permanent commitment proceedings in a dependency proceeding. We hold that the legislature has expressly given the circuit court this power and, therefore, affirm.

Id. We find T.G.T. to be dispositive and controlling but we deem it necessary to address at this time the issue of separation of powers, an issue that was not expressly mentioned in T.G.T.

It is true that "Article II, Section 3, Florida Constitution, divides government into three separate and distinct branches of government 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' ", and that "[t]his prohibition against legislative encroachment upon the executive's ... power is equally applicable to the judiciary." Sullivan v. Askew, 348 So.2d 312, 315, 316 (Fla.1977). Nevertheless as a practical matter, it is often difficult to delineate specifically between the three divisions, and some degree of overlap frequently exists. 10 Fla.Jur.2d Constitutional Law s. 139 (1979). For example, a number of Florida statutes delegate power over matters relating to child custody and commitment proceedings to both HRS and to the circuit courts. See generally ss. 39.001, 39.40, 39.404, 39.41, 409.168, 409.145, Florida Statutes (1981). When such an overlap of powers occurs, the legitimate exercise of powers by one branch, in this case the judiciary, cannot be said to violate the doctrine of separation of powers. Additionally, two recognized principles of law directly support the lower court's action and undermine HRS' position.

First, there is the general principle of inherent power that allows a court "to do all things that are reasonably necessary for the administration of justice within the scope of its jurisdiction, subject to valid existing laws and constitutional provisions." Rose v. Palm Beach County, 361 So.2d 135, 137 (Fla.1978). Accord Keen v. State, 89 Fla. 113, 103 So. 399 (1925); State v. City of Avon Park, 117 Fla. 565, 158 So. 159 (1934). As was stated in Rose:

The doctrine of...