Third District Court of Appeal
State of Florida
Opinion filed January 7, 2015.
Not final until disposition of timely filed motion for rehearing.
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No. 3D14-1272
Lower Tribunal No. 11-15142
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Florida Department of Children and Families,
Petitioner,
vs.
In the Interest of J.B., a Minor Child,
Respondent.
A Writ of Certiorari to the Circuit Court for Miami-Dade County, Maria I.
Sampedro-Iglesia, Judge.
Javier Ley-Soto, Chief Legal Counsel, and Leslie Hinds St-Surin, Assistant
General Counsel, for petitioner.
Baker & McKenzie LLP, and Angela Vigil, Attorney Ad Litem, for
respondent Minor.
Before SALTER, FERNANDEZ, and LOGUE, JJ.
LOGUE, J.
Florida Department of Children and Families appeals an order directing it to
pay the travel costs of the pro bono Attorney Ad Litem to assist in the therapy of
her client, a child in the custody of the Department and placed in a North Carolina
residential treatment facility. We treat the appeal as a petition for writ of certiorari,
grant the petition, and quash the order because it violates the doctrine of separation
of powers.
FACTS
J.B. is a minor child in the custody of the Department. Based on the
recommendation of J.B.’s psychiatrist, both the Guardian Ad Litem and the
Department concluded that J.B. required mental health treatment in a residential
treatment facility. They further determined that the Alexander Youth Network, a
residential program in North Carolina, provided the therapeutic treatment that best
suited J.B.’s needs. The Department and the Guardian Ad Litem moved the trial
court to approve the placement. Based on the evidence submitted, the trial court
agreed that the placement was in J.B.’s best interest. It ultimately entered an order
which authorized the placement.
Afterwards, the pro bono Attorney Ad Litem filed a motion to require the
Department to pay her travel costs to visit J.B. at the facility in North Carolina,
arguing that personal visits were necessary to maintain a meaningful attorney-
client relationship.1 The trial court denied the request to require the Department to
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pay travel costs that “are made to foster the attorney/client relationship.” Although
not requested by the Attorney Ad Litem, the court ordered the Department to “fund
any visits [by the pro bono Attorney Ad Litem] that are therapeutically
recommended by the therapeutic staff of the Alexander Youth Network.” The
Department appealed.
ANALYSIS
The issue presented is whether the trial court’s order violated the separation
of powers doctrine by requiring the Department, an executive agency, to pay for
the travel of the pro bono Attorney Ad Litem for the purpose of facilitating the
minor child’s therapy. We have jurisdiction. See Fla. Dep’t of Children & Families
v. Y.C., 82 So. 3d 1139, 1141 n. 6 (Fla. 3d DCA 2012) (holding, in a similar case,
that certiorari was the proper vehicle for review); Dep’t of Corrs. v. Harrison, 896
So. 2d 868, 869 (Fla. 5th DCA 2005) (“[T]he Department of Children and Families
has successfully sought certiorari review in cases where a trial court allegedly
1 This court takes this opportunity to thank the Attorney Ad Litem, Angela Vigil,
Esquire, for her professionalism in providing representation to J.B. on a pro bono
basis. Her representation benefits the child, our community, and the courts, and
exemplifies the ideals of service in our profession. By advocating the child’s point
of view, Ms. Vigil not only contributed an important viewpoint to aid the court’s
deliberation, but also enabled the child to feel that her voice was heard, considered,
and respected as part of the judicial process. The child’s perception that she was
treated with good faith is important, our Supreme Court has noted, because “a child
who feels that he or she has been treated fairly in the course of the commitment
proceedings will likely be more willing to accept hospitalization and treatment.”
Amendment to the Rules of Juvenile Procedure, Fla. R. Juv. P. 8.350, 804 So. 2d
1206, 1211 (Fla. 2001).
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exceeded its judicial authority by encroaching on the powers of the executive
branch by ordering it to take some action not permitted under the law.”).
Florida’s Constitution provides for the separation of powers between the
three branches of state government:
The powers of the state government shall be divided into legislative,
executive and judicial branches. No person belonging to one branch
shall exercise any powers appertaining to either of the other branches
unless expressly provided herein.
Art. II, § 3, Fla. Const. Under this doctrine, “the judicial branch must not interfere
with the discretionary functions of the legislative or executive branches of
government absent a violation of constitutional or statutory rights.” Detournay v.
City of Coral Gables, 127 So. 3d 869, 873 (Fla. 3d DCA 2013) (quoting Trianon
Park Condo. Ass’n, Inc. v. City of Hialeah, 468 So. 2d 912, 918 (Fla. 1985)).
“When a court interferes with an executive agency’s discretion in spending its
appropriate[d] funds, it is encroaching on the powers of the agency.” Office of
State Attorney for Eleventh Judicial Circuit v. Polites, 904 So. 2d 527, 532 (Fla. 3d
DCA 2005).
A court may order an executive department to spend funds when a statute or
constitution authorizes a court to do so. Courts, however, have rejected the idea
that there is a “doctrine of inherent judicial power” that allows a court to direct
how an executive department exercises its discretion to spend funds appropriated
to the department. Dep’t of Children & Families v. J.H., 831 So. 2d 782, 783 (Fla.
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4th DCA 2002) (holding, absent statutory authority, a trial court could not order
the Department to pay for long-term therapy by a specific therapist and any and all
necessary evaluations for the dependent child). Instead, courts have repeatedly held
that “[t]he judicial branch may not either interfere with the legislative branch by
requiring funds to be spent by an executive agency in a manner not authorized by
statute, nor interfere with an executive agency’s discretion in the spending of
appropriated funds.” Dep’t of Children & Families v. K.R., 946 So. 2d 106, 107-08
(Fla. 5th DCA 2007) (emphasis added).
Accordingly, unless a statute or a constitution authorizes the court to do so,
it is a violation of the doctrine of separation of powers for a court to direct an
executive department on how to expend funds appropriated to the department.2
2 See, e.g., Polites, 904 So. 2d at 532 (holding the trial court violated the separation
of powers doctrine when it ordered the Office of the State Attorney to pay for the
costs of mental health experts evaluating the defendant); Harrison, 896 So. 2d at
870 (holding the trial court violated the separation of powers doctrine when it
ordered the Department of Corrections to pay for an interpreter for a defendant
who was hearing impaired); Dep’t of Corr. v. Grubbs, 884 So. 2d 1147, 1148 (Fla.
2d DCA 2004) (holding the trial court violated the separation of powers doctrine
when it ordered the Department of Corrections to pay for a convicted sex
offender’s treatment program); Dep’t of Children & Family Servs. v. Birchfield,
718 So. 2d 202 (Fla. 4th DCA 1998) (reversing a trial court order that held the
Department in contempt for failing to place the appellee in a specific program);
Dep’t of Juvenile Justice v. C.M., 704 So. 2d 1123, 1125 (Fla. 4th DCA 1998)
(“[T]he court cannot direct a particular placement for a child and order the
expenditure of funds for such placement by an executive agency.”); Dep’t of
Health & Rehabilitative Servs. v. V.L., 583 So. 2d 765, 767 (Fla. 5th DCA 1991)
(“[I]t is not the judiciary’s role to revise legislative appropriations or to interfere
with an agency’s discretionary budgetary decisions”).
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Turning to the instant case, because no statute authorized the trial court to order the
Department to pay for the travel of the pro bono Attorney Ad Litem for the
purpose of facilitating J.B.’s therapy, the order violates the doctrine of separation
of powers.
The pro bono Attorney Ad Litem attempted to defend the trial court’s order
by citing to general law regarding the need to foster attorney-client relationships in
this context. That issue is not before us. The order under review excluded travel
costs relating to attorney-client matters.
Petition granted; order quashed.
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