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
DEPARTMENT OF CHILDREN AND
FAMILIES,
Appellant,
v. Case No. 5D16-1739
J.D.,
Appellee.
________________________________/
Opinion filed August 5, 2016
Appeal from the Circuit Court
for Orange County,
Timothy R. Shea, Judge.
Rosemarie Farrell, of Children's Legal
Services, Orlando, for Appellant.
No Appearance for Appellee.
EDWARDS, J.
The Florida Department of Children and Families (“DCF”) appeals the trial court’s
ruling that the court lacked jurisdiction to entertain a petition for injunction to prevent the
mother’s paramour from having any form of contact with the seven-year-old child he was
accused of repeatedly raping. The trial court clearly has jurisdiction to entertain petitions
for protective injunctions to prevent this type of abuse. Because the trial court erred in
dismissing the petition based upon a perceived lack of jurisdiction, we reverse and
remand for prompt consideration of the petition.
DCF was notified that a child, B.M., was allegedly being repeatedly sexually
abused by her mother’s paramour. Under such circumstances, a child protective
investigator is required to perform a complete assessment of immediate child safety and
either implement a safety plan to obviate the dangers or take the child into custody. See
§ 39.301(9)(a)6.a., Fla. Stat. (2016). Subsection 6.a. specifically mandates that when, as
is the case here, "the perpetrator of domestic violence is not the parent, guardian, or legal
custodian of the child, the child protective investigator shall seek issuance of an injunction
. . . to implement a safety plan for the perpetrator and impose any other conditions to
protect the child.”1 A safety plan including an injunction for protection of the child is an
alternative to removal of the child from the family.
DCF promptly filed a petition for temporary and permanent injunctive relief to
prohibit the mother’s paramour from having any form of contact with B.M. The trial court
granted the temporary injunction. However, at the permanent injunction hearing the trial
court dismissed the case without prejudice because there was not an open dependency
case. Specifically, Judge Shea stated: “I don’t have jurisdiction for this. I’m not just going
to be down here [in dependency court] doing injunctions. That’s downtown stuff. It’s
criminal DV [domestic violence].2 Denied.”
1Sexual assault and sexual battery constitute both “domestic violence” and child
“abuse.” See § 741.28(2), Fla. Stat. (2016); § 39.01(3), Fla. Stat. (2016).
2
The trial court may have been referring to proceedings and remedies available
under Chapter 741, Florida Statutes.
2
The circuit court’s exclusive jurisdiction attaches when, inter alia, “a petition for an
injunction to prevent child abuse issued pursuant to [section] 39.504[,] [Florida Statutes
2016),] is filed.” § 39.013(2), Fla. Stat. (2016). Although the circuit court’s jurisdiction may
also be triggered when DCF files a dependency petition, it is clear that an open
dependency case is not required to entertain and issue section 39.504 injunctions. Thus,
the trial court had jurisdiction to entertain and rule on the petition.
The trial court correctly noted that Chapter 39 states in section 39.013(2) that “[t]he
circuit court may assume jurisdiction over any such proceeding,” and in section 39.504(3)
that “[f]ollowing the hearing, the court may enter a final injunction.” The use of the word
“may” rather than “shall” in this section recognizes that courts must be free to exercise
broad discretion when choosing an appropriate remedy from the several that are
authorized, while using the least intrusive effective means. D.D. v. Dep’t of Child. &
Fams., 773 So. 2d 615, 616 (Fla. 5th DCA 2000) (quoting D.H. v. Dep’t of Child. & Fams.,
769 So. 2d 424, 426 (Fla. 4th DCA 2000)). However, that discretion has limits. Once a
petition for injunction to prevent child abuse has been filed, “the court shall set a hearing
to be held at the earliest possible time.” § 39.504(2) Fla. Stat. (2016). Lest there be any
doubt about which court should entertain a section 39.504 petition for injunction, the
legislature directs that ‘“[c]ourt,’ unless otherwise expressly stated, means the circuit court
assigned to exercise jurisdiction under this chapter.” § 39.01(20) Fla. Stat. (2016). Under
the circumstances here, we conclude that the trial judge abused his discretion by
attempting to send this petition “downtown” for one of his colleagues sitting in a different
division to handle as an adult domestic violence petition.
3
We reverse the order being appealed and remand this case to the trial court with
instructions to promptly schedule and conduct an evidentiary hearing to determine if a
permanent injunction should be issued prohibiting the mother’s paramour from abusing
or having any form of contact with B.M. We express no opinion as to whether the
injunction should be issued, and nothing herein should be read as otherwise limiting the
trial court’s exercise of its sound judicial discretion.
REVERSED AND REMANDED.
TORPY and LAMBERT, JJ., concur.
4