D.R. v. J.R. - Case Law

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED

D.R., MOTHER, AND DEPARTMENT
OF CHILDREN AND FAMILIES,

Appellants,

v. Case No. 5D15-3927

J.R., FATHER, S.R. AND D.R.,
CHILDREN, AND GUARDIAN AD LITEM,

Appellees.

________________________________/

Opinion filed September 27, 2016

Appeal from the Circuit Court
for Seminole County,
Susan W. Stacy, Judge.

H. Kyle Fletcher, Jr. of Fletcher Law Firm,
Oviedo, for Appellant, D.R.

Rosemarie Farrell, Orlando, for Appellant
Department of Children and Families.

Eddie J. Bell, of Law Office Of Eddie J. Bell,
Daytona Beach, for Appellee, J.R., Father.

Heather Morcroft, Orlando, for Appellees,
S.R. and D.R.

Sara E. Goldfarb, Sanford for Appellee
Guardian Ad Litem.

PALMER, J.
In this dependency matter, D.R. (the mother) appeals the trial court’s order placing

S.R. and D.R. (the children) in the custody of J.R. (the father), relinquishing jurisdiction

over the case, and terminating the Department of Children and Families' (DCF)

supervision over the children. Determining that the trial court erred in failing to comply

with the requirements of the Interstate Compact on the Placement of Children (ICPC),1

we reverse.

After DCF received reports of domestic disputes involving the mother and her

paramour, the children were taken into protective custody. Finding probable cause that

the children were dependent, the trial court granted DCF’s shelter petition and placed the

children in foster care. Thereafter, DCF filed a petition for dependency as to both the

mother and the father. DCF also filed a motion requesting the trial court to comply with

the terms of the ICPC because DCF considered placing the children with their father who

was living in Massachusetts. The trial court granted the motion, ruling:

Pursuant to Article III(d) of the Compact, this court will only
place, or authorize the State to place, the children in an
approved home in a receiving state after receipt of written
notification from a receiving state that the proposed
placement does not appear to be contrary to the best interests
of the children.

The trial court thereafter conducted an adjudicatory hearing. At the hearing, the children

testified that the mother had physically abused them, called them names, and was violent

towards her paramour. The trial court found the children to be dependent. The children’s

attorney indicated to the court that, at disposition, she would seek to have the children

1 See § 409.401, Fla. Stat. (2015).

2
The children, joined by the father, and DCF filed motions for rehearing. Pursuant

to the children’s motion, the trial court conducted a non-evidentiary hearing. At the

conclusion of the hearing, the court ruled:

At this time, the Court has granted the rehearing, has
reconsidered the law and the information, the facts that were
provided at the last hearing, the Court is placing the children
with the father, [and] is relinquishing jurisdiction over the
children immediately upon placement with the parent.

This appeal timely followed.

The mother argues that the trial court reversibly erred by placing the children with

the father without complying with the provisions of the ICPC. We agree.3

“The standard of review for a question of law in dependency proceedings is de

novo.” C.R. v. Dep't of Children & Family Servs., 53 So. 3d 240, 242 (Fla. 3d DCA 2010)

(quoting G.C. & D.C. v. Dep't of Children & Families, 791 So. 2d 17, 19 (Fla. 5th DCA

2001)).

In relevant part, the ICPC provides:

409.401 Interstate Compact on the Placement of Children.
....
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

3 We reject the mother's remaining arguments on appeal as meritless.

4
The children, joined by the father, and DCF filed motions for rehearing. Pursuant

to the children’s motion, the trial court conducted a non-evidentiary hearing. At the

conclusion of the hearing, the court ruled:

This appeal timely followed.

The mother argues that the trial court reversibly erred by placing the children with

the father without complying with the provisions of the ICPC. We agree.3

“The standard of review for a question of law in dependency proceedings is de

novo.” C.R. v. Dep't of Children & Family Servs., 53 So. 3d 240, 242 (Fla. 3d DCA 2010)

(quoting G.C. & D.C. v. Dep't of Children & Families, 791 So. 2d 17, 19 (Fla. 5th DCA

2001)).

In relevant part, the ICPC provides:

409.401 Interstate Compact on the Placement of Children.
....
Article III Conditions for Placement.

3 We reject the mother's remaining arguments on appeal as meritless.

4
state written notice of the intention to send, bring, or place the
child in the receiving state. The notice shall contain:
(1) The name, date and place of birth of the child.
(2) The identity and address or addresses of the parents or
legal guardian.
(3) The name and address of the person, agency or institution
to or with which the sending agency proposes to send, bring,
or place the child.
(4) A full statement of the reasons for such proposed action
and evidence of the authority pursuant to which the placement
is proposed to be made.
....
(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. (2015).

In Department of Children and Families v. Benway, 745 So. 2d 437, 439 (Fla. 5th

DCA 1999), we determined that the ICPC applied to out-of-state placements with natural

parents. In doing so, we broadly interpreted the applicability of the ICPC, recognizing that

the ICPC’s “main purpose” was to “ensure that a child is placed in a suitable environment.”

Id. We explained:

Once a court has legal custody of a child, it would be negligent
to relinquish that child to an out-of-state parent without some
indication that the parent is able to care for the child
appropriately. The ICPC provides an effective mechanism for
gleaning that evidence and for maintaining a watchful eye
over the placement.

Id.; see also Dep't of Children & Families v. Fellows, 895 So. 2d 1181, 1183 (Fla. 5th

DCA 2005) (holding that the ICPC applied to the placement of the child with his

out-of-state aunt).

All parties recognize that the ICPC requirements have not been fulfilled in this case

because the appropriate public authority in Massachusetts has not provided written notice

5
state written notice of the intention to send, bring, or place the
child in the receiving state. The notice shall contain:
(1) The name, date and place of birth of the child.
(2) The identity and address or addresses of the parents or
legal guardian.
(3) The name and address of the person, agency or institution
to or with which the sending agency proposes to send, bring,
or place the child.
(4) A full statement of the reasons for such proposed action
and evidence of the authority pursuant to which the placement
is proposed to be made.
....
(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. (2015).

In Department of Children and Families v. Benway, 745 So. 2d 437, 439 (Fla. 5th

DCA 1999), we determined that the ICPC applied to out-of-state placements with natural

parents. In doing so, we broadly interpreted the applicability of the ICPC, recognizing that

the ICPC’s “main purpose” was to “ensure that a child is placed in a suitable environment.”

Id. We explained:

Id.; see also Dep't of Children & Families v. Fellows, 895 So. 2d 1181, 1183 (Fla. 5th

DCA 2005) (holding that the ICPC applied to the placement of the child with his

out-of-state aunt).

All parties recognize that the ICPC requirements have not been fulfilled in this case

because the appropriate public authority in Massachusetts has not provided written notice

5
simply does not allow a child to be placed with a noncustodial
parent in another state without compliance with the ICPC.

Id. at 306. We agree with this reasoning and adopt it as our own. Thus, the trial court

committed error in placing the children in the father's custody without complying with the

ICPC. However, as argued by the father and the GAL, notwithstanding the trial court's

error, the children are not required to be immediately returned to Florida. See B.G., 189

So. 3d at 305; R.F. v. Dep't of Children & Families, 50 So. 3d 1243, 1244-46 (Fla. 4th

DCA 2011); Dep't of Children & Families v. T.T., 42 So. 3d 962, 964 (Fla. 5th DCA 2010);

H.P. v. Dep't of Children & Families, 838 So. 2d 583, 586-87 (Fla. 5th DCA 2003).

Accordingly, we reverse the portion of the final order terminating the trial court’s

jurisdiction and remand with instructions for the trial court to determine whether it would

be in the children’s best interest for them to remain in the father's custody pending the

completion of the ICPC process.

REVERSED and REMANDED.

SAWAYA and ORFINGER, JJ., concur.