DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
L.B., the mother,
Appellant,
v.
DEPARTMENT OF CHILDREN AND FAMILIES, and
GUARDIAN AD LITEM,
Appellees.
No. 4D20-1153
[September 23, 2020]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Alberto Ribas, Jr., Judge; L.T. Case No. 11-609CJDP.
Kevin G. Thomas, Sunny Isles Beach, for appellant.
Ashley Brooke Moody, Attorney General, Tallahassee, and Carolyn
Schwarz, Assistant Attorney General, Fort Lauderdale, for appellee
Department of Children and Families.
Thomasina F. Moore, Statewide Director of Appeals, and Samantha C.
Valley, Senior Attorney, Appellate Division, Florida Statewide Guardian ad
Litem Office, Tallahassee, for appellee Guardian Ad Litem.
PER CURIAM.
The Department of Children and Families (“DCF”) has appropriately
acknowledged the trial court’s reversible error in ruling on the Guardian
ad Litem’s “Motion to Modify to a Sole Goal of Permanent Guardianship,
Place the Minor Child in a Permanent Guardianship and to Terminate
Protective Supervision.” As conceded by DCF, Appellant mother did not
receive proper and timely notice that this motion would be heard at the
scheduled April 13, 2020 Judicial Review hearing. Moreover, the Judicial
Review Social Study Report recommending permanent guardianship was
not filed until after the hearing had concluded. While the Guardian ad
Litem suggests that appellant waived notice by failing to object, we
conclude that appellant’s attorney did object as soon as it became
apparent that the court was ruling on the motion, as opposed to simply
conducting a judicial review.
Accordingly, we reverse and remand the trial court’s order which placed
the child in permanent guardianship and terminated protective
supervision. The trial court shall schedule a Judicial Review hearing, after
which any of the parties may file motions and properly and timely request
an evidentiary hearing on the motion(s).
Reversed and remanded for further proceedings.
GERBER and ARTAU, JJ., concur.
WARNER, J., concurs specially with opinion.
WARNER, J., concurring specially.
I concur in the reversal for an evidentiary hearing. In addition to the
lack of notice, the evidence presented by DCF at the hearing was deficient.
The court found that appellant’s numerous diluted urine samples
indicated that she had not refrained from drinking alcohol, which was a
substantial condition of her plan. There was no evidence, however,
regarding the significance of the diluted samples. No testimony was
offered as to how these compromised the case plan objectives. Only the
lawyers suggested in argument that appellant was disguising her alcohol
use by drinking water. As we have said, the unsworn argument of
attorneys does not establish facts upon which the trial court can rely in
its ruling. See Rosa-Hernandez v. Hernandez, 979 So. 2d 1194,1196 (Fla.
4th DCA 2008) (quoting State v. Bauman, 425 So. 2d 32, 34-35 n. 3 (Fla.
4th DCA 1982)). Without evidence to support this crucial factor, I would
hold that the court also erred in determining that appellant failed to
comply with her case plan.
* * *
Not final until disposition of timely filed motion for rehearing.
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