Supreme Court of Florida
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No. SC16-179
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IN THE INTEREST OF: B.R.C.M., A MINOR CHILD,
Petitioner,
vs.
FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES,
Respondent.
[April 20, 2017]
LABARGA, C.J.
B.R.C.M., a minor child, seeks review of the decision of the Third District
Court of Appeal in In re B.R.C.M., 182 So. 3d 749 (Fla. 3d DCA 2015), on the
ground that it expressly and directly conflicts with the decision of another district
court of appeal on a question of law. We have jurisdiction. See art. V, § 3(b)(3),
Fla. Const.
BACKGROUND
B.R.C.M., an unaccompanied minor from Guatemala, illegally entered the
United States at age thirteen and was released by the Office of Refugee
Resettlement to his godmother as a sponsor.1 After his arrival, a private petition
was filed on behalf of B.R.C.M. alleging three grounds for adjudication of
dependency under section 39.01(15), Florida Statutes (2014), which defines a
dependent child as a child who is found by the court: “(a) [t]o have been
abandoned, abused, or neglected by the child’s parent or parents or legal
custodians”; “(e) [t]o have no parent or legal custodians capable of providing
supervision and care”; or “(f) [t]o be at substantial risk of imminent abuse,
abandonment, or neglect by the parent or parents or legal custodians.” In support
of a determination of dependency, the petition asserted that B.R.C.M.’s father
abandoned him at birth and never provided him with food, shelter, clothing, and
medical care. The petition asserted that B.R.C.M.’s mother abandoned him at age
four when she disappeared and never contacted him again or provided him with
basic necessities. B.R.C.M. then went to live with his grandmother until she was
no longer able to care for him because of old age and illness. At age thirteen,
fearing he would be forced to join a local gang and having no family to care for
1. We recognize that B.R.C.M. appears to reside with his godmother, who
as a sponsor, is entrusted with his care and custody by the federal government.
The sponsor care agreement encourages sponsors who are neither parents nor legal
guardians to establish legal guardianship with the local court. We observe that
Florida courts have exclusive jurisdiction of all proceedings relating to child
welfare. An adjudication of dependency would not preclude B.R.C.M. from
continued care by his godmother, but would ensure appropriate placement for the
child, consistent with the permanency goals of Chapter 39 of the Florida Statutes.
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him, B.R.C.M. fled Guatemala, travelled through Mexico, and entered the United
States in Hidalgo, Texas. The petition asserted that B.R.C.M. was placed with his
godmother in Miami, Florida, and met his father for the first time after his arrival
in the United States. His father has maintained telephone contact with B.R.C.M.,
but has not provided for the child’s basic needs. The petition was denied after an
eight-minute hearing in the circuit court, during which the court made no factual
findings.
On appeal, the Third District repeatedly observed that the child’s sole
purpose in filing the dependency petition was to facilitate an application for
Special Immigrant Juvenile Status (SIJS) and seek lawful permanent residency. In
re B.R.C.M., 182 So. 3d at 751. The district court determined it was “plain on the
face of the petition that B.R.C.M. is not ‘truly’ abandoned, abused or neglected
within the meaning of Chapter 39,” and despite acknowledging that “[a]
godmother is neither a parent nor legal custodian under the statute,” affirmed the
summary denial of the petition. Id. at 751-52, 754. The court concluded: “The
purpose of the dependency laws of this state is to protect and serve children and
families in need, not those with a different agenda.” Id. at 754 (quoting In re
K.B.L.V., 176 So. 3d 297, 301 (Fla. 3d DCA 2015) (Shepherd, J., specially
concurring)).
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ANALYSIS
The Third District’s conclusion—that B.R.C.M. was not entitled to the
protections of Chapter 39 because he is not “truly” abandoned, abused, or
neglected and that his petition was filed for the sole purpose of seeking an
immigration status—expressly conflicts with the decision of the First District in In
re Y.V., 160 So. 3d 576 (Fla. 1st DCA 2015).
In In re Y.V., the First District reversed the summary dismissal of a private
petition for dependency where the petition set forth the applicable grounds for
dependency and alleged sufficient facts, warranting an adjudicatory hearing. The
First District stated the express purpose of Chapter 39 as set forth by the
Legislature; identified the appropriate form and contents of a dependency petition;
and recognized that the applicable law, section 39.01(15), Florida Statutes (2013),
provides seven independent grounds for adjudicating a child dependent. Id. at 578.
Additionally, the First District declared that “[a]n intent to obtain [SIJS] says
nothing in and of itself regarding the facial sufficiency of the dependency
allegations . . . [t]herefore, a petition for dependency should not be rejected in
Florida based on the mere motivation of the petitioner.” Id. at 581.
The purpose of Chapter 39 is “[t]o provide for the care, safety, and
protection of children . . . ; to ensure secure and safe custody; to promote the health
and well-being of all children under the state’s care; and to prevent the occurrence
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of child abuse, neglect, and abandonment.” § 39.001(1)(a), Fla. Stat. (2014).
Consistent with this purpose, section 39.01(15) provides seven independent
grounds upon which a child may be adjudicated dependent. “[W]hen a Florida
court is presented with a dependency petition, the court’s concern should be
whether the allegations made in support of an adjudication of dependency satisfy
Florida’s statutory grounds for such an adjudication, not whether the [juvenile]
hopes to obtain [SIJS].” O.I.C.L. v. Dep’t of Children & Families, 205 So. 3d 575,
578 (Fla. 2016) (quoting In re Y.V., 160 So. 3d at 581). “[I]f a child qualifies for a
declaration of dependency under our statutes, the child’s motivation to obtain legal
residency . . . is irrelevant.” F.L.M. v. Dep’t of Children & Families, 912 So. 2d
1264, 1269 (Fla. 4th DCA 2005). Moreover, “[i]f federal law grants a right to
alien children to regularize their immigration status by first obtaining a state court
adjudication of dependency, then there is no basis for failing to declare a child
dependent so long as he or she meets the statutory criteria for dependency.” Id.
In his dissent in In re B.R.C.M., Judge Salter identified the trend toward
summary denials of dependency petitions by immigrant juveniles based on a belief
or conclusion that the juveniles are not entitled to adjudicative findings because
they are only seeking immigration relief, not state assistance following abuse,
abandonment, or neglect. 182 So. 3d at 764 (Salter, J., dissenting). The dissent
observed: “the recent spate of summary denial orders in the trial court and per
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curiam affirmances in [the Third District] suggest a categorical rejection of such
petitions rather than the usual individualized evidentiary hearings and written
findings of fact.” Id. (Salter, J., dissenting). We disapprove of the categorical
summary denial of dependency petitions filed by immigrant juveniles, and find no
authority in the statutory scheme that allows for dismissal or denial without factual
findings by the circuit court.
In this case, the dependency petition was filed on behalf of B.R.C.M. by
next friends having personal knowledge of the facts alleged, in accordance with
Florida dependency law and procedure.2 The petition asserted three grounds for
dependency under section 39.01(15), and alleged sufficient facts, establishing a
prima facie case.3 Nonetheless, the Department of Children and Families did not
investigate the allegations in the petition, and it was denied after a brief hearing in
which no evidence was presented and no fact-finding resulted. See id. at 755-56
(Salter, J., dissenting).
2. “All proceedings seeking an adjudication that a child is dependent shall
be initiated by the filing of a petition by an attorney for the department, or any
other person who has knowledge of the facts alleged or is informed of them and
believes that they are true.” § 39.501(1), Fla. Stat. (2014). See Fla. R. Juv. P.
8.201(a)(2).
3. Each dependency petition shall “allege sufficient facts showing the child
to be dependent based upon applicable law.” Fla. R. Juv. P. 8.310(a)(1).
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When a petition for dependency alleges specific facts supporting a finding of
dependency under any of the seven statutory grounds, the circuit court must make
individualized factual findings and apply the law to the facts in order to make a
proper adjudication of dependency. See id. at 766 (Salter, J., dissenting) (“Florida
circuit courts should enter findings of fact and conclusions of law that address each
juvenile petitioner’s individual claims.”). “If the petition states a prima facie case,
the petitioner should be permitted to introduce evidence in support of his or her
claims, and the court should enter specific adjudicative findings responsive to the
issues presented by the petition and the evidentiary record.” Id. (Salter, J.,
dissenting). If a child meets the statutory criteria for dependency, the child must
be adjudicated accordingly, regardless of the child’s motivations for seeking a
dependency adjudication. Whether the petition seeks an adjudication to assist the
child in applying for an immigration status under federal law is not a basis for
summarily dismissing or denying the petition. See id. at 755 (Salter, J.,
dissenting). The determination of whether an immigrant juvenile may obtain SIJS
is reserved for the federal immigration authorities. See In re Y.V., 160 So. 3d at
581.
Because the Third District approved the summary denial of B.R.C.M.’s
petition on the basis that his purpose was to seek lawful permanent residency, and
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determined that he was not “truly” needy without any factual record or evidence
regarding the child’s circumstances, we quash the decision below.
CONCLUSION
We agree with the dissent below that “B.R.C.M.’s ‘private petition’ for
dependency . . . warrants individualized consideration and adjudication rather than
summary denial.” In re B.R.C.M., 182 So. 3d at 754-55 (Salter, J., dissenting).
Accordingly, we quash the decision of the Third District and remand the case for
further proceedings consistent with this opinion.
It is so ordered.
PARIENTE, J., concurs.
LAWSON, J., concurs specially with an opinion.
LEWIS, J., concurs in result with an opinion.
CANADY, J., dissents with an opinion, in which QUINCE and POLSTON, JJ.,
concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
LAWSON, J., specially concurring.
I write separately to acknowledge that Justice Canady and those joining his
dissent make some valid observations, with which I do not disagree. However, the
dissent also appears to agree that there is an express and direct conflict between the
Third District’s decision in In re B.R.C.M., 182 So. 3d 749 (Fla. 3d DCA 2015),
and the First District’s decision in In re Y.V., 160 So. 3d 576 (Fla. 1st DCA 2015).
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The dissent further disagrees with portions of the Third District’s analysis; agrees
with portions of the First District’s opinion; and appears to agree with the rule
announced by this Court on the conflict issue: namely, that private dependency
petitions cannot simply be summarily and categorically denied because they appear
to be motivated by a desire to gain immigration relief for the child.
Unlike the dissent, I prefer to reach the conflict issue rather than essentially
approve the result reached by the Third District on the alternative ground that the
petition could have been dismissed based upon pleading deficiencies. The general
rule is that a pleading should not be dismissed without leave to amend unless the
privilege to amend “has been abused” or amendment would be “futile,” i.e., where
the pleading deficiencies cannot be cured. Price v. Miller & Solomon Gen.
Contractors, Inc., 104 So. 3d 1251, 1252 (Fla. 4th DCA 2013). Because it is clear
that the trial judge here would have dismissed this petition irrespective of any
attempt to amend, I believe the conflict issue to be ripe for decision. See, e.g.,
State v. Walker, 923 So. 2d 1262, 1265 (Fla. 1st DCA 2006) (noting that the law
does not require futile acts to preserve error for review). I also agree with Justice
Lewis that immediate legislative attention and clarification is needed in this area.
Otherwise, the courts of this State will continue to expend valuable resources
trying to figure out whether and how to apply our dependency statute to facts that
do not appear to have even been contemplated when it was enacted.
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LEWIS, J., concurring in result.
Although I cannot agree with the summary nature of the proceedings below,
I do agree with the multiple district courts in Florida, including the Third District
which have essentially held that the structure of statutory dependency in Florida
cannot and should not be allowed to be transformed into an immigration
processing system which is strictly reserved for our federal immigration
authorities. The problems generated by this approach seem to be widely increasing
and need legislative attention and clarification immediately.
CANADY, J., dissenting.
Although I do not agree with certain elements of the Third District’s
reasoning in In re B.R.C.M., 182 So. 3d 749 (Fla. 3d DCA 2015), I nonetheless
would approve the result reached in that decision. Under the pertinent provisions
of chapter 39, Florida Statutes, B.R.C.M.’s dependency petition was not sufficient
to state a prima facie case of dependency. Accordingly, dismissal of the petition
was warranted.
I agree with the majority that “[i]f a child meets the statutory criteria for
dependency, the child must be adjudicated accordingly, regardless of the child’s
motivations for seeking a dependency adjudication” and that “[w]hether the
petition seeks an adjudication to assist the child in applying for an immigration
status under federal law is not a basis for summarily dismissing or denying the
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petition.” Majority op. at 7. I also agree with the majority that “[i]f the petition
states a prima facie case, the petitioner should be permitted to introduce evidence
in support of his or her claims, and the court should enter specific adjudicative
findings responsive to the issues presented by the petition and the evidentiary
record.” Id. at 7 (quoting In re B.R.C.M., 182 So. 3d at 766 (Salter, J.,
dissenting)). But I disagree with the conclusion that the petition filed in this case is
sufficient to establish a prima facie case of dependency. Based on the facts alleged
and the grounds pleaded in the petition, the Petitioner failed to pass the threshold
requirement for an evidentiary hearing.
The Petitioner argues here that a determination of dependency is justified on
three separate grounds. One of those grounds, however, was not pleaded in the
petition. And the facts alleged in the petition are not sufficient to show a prima
facie case under either of the other two grounds on which the Petitioner relies.
The petition is devoid of any claim for a determination that B.R.C.M. is a
dependent child on the ground enumerated in section 39.01(15)(e), Florida Statutes
(2014)—that is, as a child found “[t]o have no parent or legal custodians capable of
providing supervision and care.” In the absence of a claim in the petition that
dependency exists and should be adjudicated on this specific ground, this basis for
determining dependency has never been properly at issue in this case. Requiring
an evidentiary hearing regarding this unpleaded claim is totally unjustified.
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Nor is an evidentiary hearing justified on the other two grounds asserted by
the Petitioner. The facts alleged in the petition do not establish a prima facie case
that B.R.C.M. is a dependent child on the grounds enumerated in either section
39.01(15)(a), as a child found “[t]o have been abandoned, abused, or neglected by
the child’s parent or parents or legal custodians,” or section 39.01(15)(f), as a child
found “[t]o be at substantial risk of imminent abuse, abandonment, or neglect by
the parent or parents or legal custodians.” Understanding the insufficiency of the
claims made on these two grounds requires a journey through the definitional maze
of section 39.01. The dependency claim here relates to abandonment and
neglect—not to abuse. And the insufficiency of that claim turns at least in part on
elements of the statutory definitions of abandonment and neglect. The
insufficiency is also indicated by the way the basic definitional term at issue here is
framed: “[c]hild who is found to be dependent.” § 39.01(15), Fla. Stat. (2014).
The very term itself suggests a determination based on circumstances that are not
temporally remote. Such a determination thus could not be based on the
circumstances in Guatemala years ago that are alleged in the petition.
Abandonment is defined in section 39.01(1) as
a situation in which the parent or legal custodian of a child or, in the
absence of a parent or legal custodian, the caregiver, while being able,
has made no significant contribution to the child’s care and
maintenance or has failed to establish or maintain a substantial and
positive relationship with the child, or both.
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The allegations of abandonment in the petition fail to pass muster under this
definition for two reasons. Even to the extent that the conduct of the Petitioner’s
parents in Guatemala might be considered a proper focus, the petition contains no
allegations that the parents were able to do anything to remedy their failures
regarding the care of B.R.C.M. More to the point, there is no allegation of any
deficiency on the part of the caregiver—B.R.C.M.’s godmother—to whom
B.R.C.M. has been entrusted by the federal government. Indeed, B.R.C.M. seeks
to remain in the custody of the caregiver.
It is not subject to dispute that under federal law B.R.C.M. is in the custody
of the government of the United States, which has ultimate responsibility for his
well-being. The person to whom B.R.C.M. has been entrusted by the federal
government is properly deemed a caregiver within the meaning of section 39.01.
The definition of caregiver in section 39.01(10) includes a “person responsible for
a child’s welfare as defined in subsection (47).” Section 39.01(47) includes within
the various categories specified a broad reference to “any other person legally
responsible for the child’s welfare in a residential setting.” B.R.C.M.’s godmother
has necessarily undertaken obligations as a condition for the placement of
B.R.C.M. with her “in a residential setting” by the federal government that readily
bring her within this category.
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Regarding the allegations of neglect, as with the allegations of abandonment,
there is no claim that the godmother has in any way neglected B.R.C.M. And
regarding the allegations concerning the parents, the dependency claim runs
aground on the provision contained in section 39.01(44)’s definition of neglect that
circumstances depriving a child of proper care “shall not be considered neglect if
caused primarily by financial inability unless actual services for relief have been
offered to and rejected by such person.” The allegations of the petition contain not
a hint that the circumstances affecting B.R.C.M.’s family in Guatemala were the
result of anything other than “financial inability.” Further, as previously
mentioned, it is questionable that allegations of such temporally remote
circumstances are a proper predicate for an adjudication of current dependency.
The allegations of the petition also fail to support the claim under section
39.01(15)(f) that B.R.C.M. is “at substantial risk of imminent abuse, abandonment,
or neglect by the parent or parents or legal custodians.” This claim is based on the
specter of deportation and the circumstances that B.R.C.M. might face in
Guatemala after being deported. As a practical matter, it seems virtually certain
that any return of B.R.C.M. to Guatemala would occur only when B.R.C.M. is an
adult. In any event, leaving that practical matter aside, the allegations of the
petition simply do not show an “imminent” risk of anything. The allegations rest
on nothing more than speculation that the federal government might deport
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B.R.C.M. Beyond the fact that the requirement that an “imminent” risk be
established has not been met, it is a dubious proposition that section 39.01(15) is
designed to protect against actions of the federal government under the
immigration laws.
The decision of the First District in In re Y.V., 160 So. 3d 576, 579 (Fla. 1st
DCA 2015), correctly recognizes that “the federal and state statutory scheme
currently in place . . . provides a pathway for undocumented children who have
been abused, abandoned, or neglected to obtain lawful permanent residency in the
United States” (citing 8 U.S.C. § 1101(a)(27)(J); § 39.5075, Fla. Stat. (2013)). But
the dependency claims regarding such children must be evaluated based on the
specific requirements of the dependency statute. And not every undocumented
child will necessarily meet the requirements for a determination of dependency.
Here, those requirements have not been met. Further, it is by no means clear that
section 39.5075—which in subsection (4) authorizes Florida courts to issue orders
“finding that [a dependent] child meets the criteria for special immigrant juvenile
status” under federal law—applies to private petitions seeking such a finding.
Section 39.5075(4) refers specifically to petitions submitted by “the department or
community-based care provider” as distinct from private petitions.
QUINCE and POLSTON, JJ., concur.
Application for Review of the Decision of the District Court of Appeal – Direct
Conflict of Decisions
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Third District - Case No. 3D15-962
(Miami-Dade County)
Ricardo Rodriguez and Mary M. Gundrum of Immigrant Children’s Justice Clinic,
Florida International University College of Law, Miami, Florida; and Steven
Hadjilogiou and Angela Vigil of Baker & McKenzie, Miami, Florida,
for Petitioner
Stephanie C. Zimmerman, Deputy Director & Statewide Director of Appeals,
Children’s Legal Services, Bradenton, Florida; and Karla Perkins, Appellate
Counsel, Children’s Legal Services, Miami, Florida,
for Respondent
Bernard P. Perlmutter of Children & Youth Law Clinic, University of Miami
School of Law, Coral Gables, Florida; and Whitney M. Untiedt of Akerman LLP,
Miami, Florida,
for Amicus Curiae Florida’s Children First
Rebecca Sharpless and Romy Lerner of Immigration Clinic, University of Miami
School of Law, Coral Gables, Florida; and Robert Latham, Bernard Perlmutter, and
Kele Stewart of Children & Youth Law Clinic, University of Miami School of
Law, Coral Gables, Florida; and JoNel Newman and Melissa Swain of Health
Rights Clinic, University of Miami School of Law, Coral Gables, Florida,
for Amici Curiae University of Miami School of Law Children & Youth
Clinic, Health Rights Clinic, and Immigration Clinic
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