State, Dept. of Health and Rehabilitative Services v. Brooke, s. 90-2475

• Decision Date: 02 January 1991
• Docket Number: 90-2530,90-2739,Nos. 90-2475,90-2804,90-2511,s. 90-2475
• Citation: 573 So.2d 363,16 Fla. L. Weekly 130
• Parties: 16 Fla. L. Weekly 130 STATE Of Florida, DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, and Gregory Coler, as Secretary of the Department of Health and Rehabilitative Services, Petitioners, v. The Honorable Alban BROOKE of the Circuit Court of the Fourth Judicial Circuit In and For Duval County, Florida, and the Honorable Dorothy Pate of the Circuit Court of the Fourth Judicial Circuit, In and For Duval County, Florida, Respondents, In the Interest of W.C.J. a/k/a W.C.J., a Child, J.S.B., a Child, P.H., a Child, A.G., a Child, R.H., a Child, J.R., a Child, O.W., a Child, J.R., a Child, and O.W., a Child. to 90-2807, 90-2531 and 90-2532.
• Court: Florida District Court of Appeals

Page 363

573 So.2d 363

16 Fla. L. Weekly 130

STATE Of Florida, DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, and Gregory Coler, as Secretary of the Department of Health and Rehabilitative Services, Petitioners, v. The Honorable Alban BROOKE of the Circuit Court of the Fourth Judicial Circuit In and For Duval County, Florida, and the Honorable Dorothy Pate of the Circuit Court of the Fourth Judicial Circuit, In and For Duval County, Florida, Respondents In the Interest of W.C.J. a/k/a W.C.J., a Child, J.S.B., a Child, P.H., a Child, A.G., a Child, R.H., a Child, J.R., a Child, O.W., a Child, J.R., a Child, and O.W., a Child.

Nos. 90-2475, 90-2511, 90-2530, 90-2739, 90-2804 to 90-2807, 90-2531 and 90-2532.

District Court of Appeal of Florida First District.

Jan. 2, 1991.

Linda Harris, Acting General Counsel, HRS, Tallahassee, and Howard M. Talenfeld, Colodny, Fass & Talenfeld, P.A., North Miami, for petitioners.

William J. Sheppard, Sheppard and White, P.A., Jacksonville, for respondents.

Teresa H. Ellis, Guardian Ad Litem Program for Fourth Judicial Circuit, Jacksonville, for respondents W.C.J. and R.D.H.

Karen S. Jennemann, Jacksonville, for respondent A.G.

Raymond I. Booth, III, Brown, Terrell, Hogan, Ellis, McClamma & Yegelwel, P.A., Jacksonville, for respondent O.W.

WIGGINTON, Judge.

We have for review in these consolidated appeals and the second amended emergency petition for writ of prohibition and common law certiorari the orders of Duval County Juvenile Court Judges Brooke and Pate ordering the appearance of Department of Health and Rehabilitative Services Secretary Gregory Coler on August 27, 1990, to explain why the Department did not have sufficient funding to place the appellees/children in psychiatric/therapeutic residential placement as recommended by the Case Review Committee. Also pending are motions to dismiss the petition for writ of prohibition and common law certiorari. For the following reasons, we grant the motions to dismiss the petition filed in Case No. 90-2475 and reverse the orders entered in the remaining cases.

As a preliminary matter, we note that by order, this court earlier granted in Case No. 90-2475 the petitioners' motion to treat its second amended emergency petition for writ of prohibition and common law certiorari and its reply to respondents' response to the petition as the initial and reply briefs in the separate consolidated appeals. ¹ Consequently, the facts and issues as set forth in the emergency petition in Case No. 90- 2475 are identical to those involved in the consolidated appeals.

From July 16, 1990, to July 19, 1990, Duval County Juvenile Court Judge Alban Brooke held hearings to reveal the status of four dependent, emotionally disturbed children who had been committed to the custody of the Department of Health and Rehabilitative Services. Prior to each review, the Department District 4 Case Review Committee (hereinafter the "CRC"), had recommended various residential therapeutic placements for the children. However, the Department explained to Judge Brooke at each respective hearing that due to limitations in the amount of the legislature's appropriations for such placements, the Department was prohibited by section 216.311, Florida Statutes (1989), and other law, from agreeing to and making the recommended placements. ² Judge Brooke, obviously highly agitated and frustrated by this announcement, and recognizing that the Department had received two million additional dollars in appropriated money in 1990, as well as the fact that "we are now in the third week of the fiscal year" and the Department was announcing it was out of money, stated on the record that in the event the placements were not accomplished by August 27, 1990, he would require HRS Secretary Gregory Coler to appear on that date in order for the court to inquire into the Department's available alternatives such as the transfer of monies from other programs in order to effectuate the recommended placements, and to consider contempt sanctions.

Accordingly, on July 24, 1990, Judge Brooke signed identical orders pertaining to each of the four children, W.J., O.W., J.B., and J.R., requiring HRS to place the children in available placements as recommended by the individual predisposition studies and the CRC recommendations. The order also recognized that no money is presently available for such purpose and will not be available the entire fiscal year (1990-1991). Finally, the order concluded that if the children were not placed, there would be a hearing held on August 27, 1990, to determine why the Department had not placed the children in the appropriate and recommended therapeutic treatment and to determine whether an order to show cause should be issued to the Department. Additionally, Secretary Coler was ordered to appear at the hearing and if he failed to respond to said order, a subpoena for his attendance would be issued.

The judge ordered Secretary Coler to appear despite a letter submitted to him from Lee Johnson, acting district administrator for the Department, informing him that the budget allocated for the fiscal year 1990-1991 was lower than that which was actually needed, and pointing out that the Department was prohibited by section 216.311 from expending or committing funds in excess of the approved budget allocation. Mr. Johnson also enclosed a copy of the spending plan for the purchase of residential treatment services for children for the fiscal year, indicating the budget expenditures with each provider agency in which the children were currently placed for psychiatric residential treatment. It also revealed that by the date of the letter, the Department had incurred a $159,642 deficit for psychiatric residential treatment of children and adolescents. Mr. Johnson went on to explain that since the Department is constrained to "live within the budget," it was deferring long-term residential mental health placement of CRC-referred children until additional resources become available. He assured Judge Brooke that the Department would individually review those cases where it is believed that a failure to provide residential treatment would result in a clear and present danger to the child or adolescent. The judge was advised that further steps to be taken to control and reduce the deficit would include case management, stepping children down to less expensive placements, and focusing upon nonresidential, community-based services through the family services planning and intervention team process. ³ Mr. Johnson closed by stating that he was available to discuss any questions or concerns the judge at any time may have.

On August 7, 1990, August 17, 1990, and August 20, 1990, Judge Pate reviewed the status of A.G., R.H., and P.H. who had been committed to the temporary custody of the Department. Again, therapeutic residential treatment had been recommended by the CRC, but, as with the other four children before Judge Brooke, the Department announced it could not agree to make the recommended placement of the children due to a lack of appropriated funds. At the August 7 hearing, Judge Pate indicated that either the legislature was wrong in failing to appropriate sufficient funds or the Department was wrong in failing to request sufficient appropriations. For these alternative reasons, Judge Pate signed an order requiring the appearance of Secretary Coler at the August 27, 1990 hearing, previously scheduled by Judge Brooke, to inquire into the Department's efforts to obtain appropriations with respect to the funding of residential therapeutic placements. A similar order was signed by Judge Pate on August 17 in the case of P.H., and on August 20 in the case of R.H.

The issues presently before us as raised in the petition and in the consolidated appeals are (I) whether Judge Brooke's orders interfere with HRS' executive discretion concerning the placement of dependent children in derogation of the doctrine of separation of powers; (II) whether Judge Brooke's orders requiring HRS to unlawfully make placements in excess of appropriated funds and whether both Judge Brooke's and Judge Pate's orders requiring the appearance of Secretary Coler encroach upon a legislative prerogative in derogation of the doctrine of separation of powers; and (III) whether the judges' orders requiring the appearance of Secretary Coler interfere with the secretary's executive discretion in derogation of the doctrine of separation of powers. In response to these issues, we first address respondents' motion to dismiss the second amended emergency petition for writ of prohibition and common law certiorari.

Specifically, respondents move to dismiss the petition for writ of prohibition on the basis that petitioners have another appropriate and adequate legal remedy as shown by the fact that they have already appealed the contested orders and have received a stay pursuant to such appeal. English v. McCrary, 348 So.2d 293, 297 (Fla.1977). Similarly, respondents move to dismiss the second amended emergency petition for common law certiorari on the basis that petitioners have already appealed from the orders, thus showing that they have an adequate legal remedy by appeal. Department of Health and Rehabilitative Services v. C.G., 556 So.2d 1243 (Fla. 5th DCA 1990). In both instances, respondents urge that this court should treat the consolidated petitions as notices of appeal and order compliance with the appropriate provisions of the Rules of Appellate Procedure pursuant to Skinner v. Skinner, 561 So.2d 260 (Fla.1990).

We agree with respondents' position on this issue and therefore grant their motion to dismiss the second amended emergency petition for writ of prohibition and for common law certiorari, and hereby dismiss the petition. Compare In the Interest of K.A.B., 483 So.2d 898 (Fla. 5th DCA 1986) (As legal custodian in that case, HRS was held entitled to appeal the order directing placement...