M.M., etc. v. Florida Department of Children and Families , 189 So. 3d 134 ( 2016 )

Supreme Court of Florida
____________
No. SC15-1544
____________
M.M., etc.,
Petitioner,
vs.
FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES, et al.,
Respondents.
[April 14, 2016]
LEWIS, J.
M.M., the Father in this case, seeks review of the decision of the Third
District Court of Appeal in M.M. v. Department of Children & Family Services,
170 So. 3d 840 (Fla. 3d DCA 2015), on the ground that it expressly and directly
conflicts with a decision of the First District in W.W. v. Guardian Ad Litem
Program, 159 So. 3d 999 (Fla. 1st DCA 2015), on a question of law. The issue
before us today is whether a post-dependency order that is subject to future
modification for purposes of child welfare and parental visitation is reviewable as a
final order by appeal, as an interlocutory order reviewable by appeal, or as a non-
final order reviewable by certiorari. We have jurisdiction. See art. V, § 3(b)(3),
Fla. Const.
FACTUAL & PROCEDURAL BACKGROUND
Family History with DCF
The children’s history with Respondent Department of Children & Families
(DCF) began in 2004, when three reports of abuse were filed. Specifically, it was
reported to DCF that the children, A.M. (then four years old) and L.M. (then one
year old), were found alone in a very hot and humid house with a knife readily
accessible. The children were temporarily placed in a shelter, but ultimately the
case was dismissed and the children were returned to the custody of their parents.
In October 2013, the children were placed in shelter care by DCF after a
report that A.M. was beaten fifteen times with a belt by her Mother, was told by
her Mother that A.M. should kill herself, and was not fed for one night. In
addition, L.M. disclosed that she saw her Father, M.M., grab her older sister A.M.
by the mouth and push her head against a wall. The Father also kicked, punched,
and slapped A.M. in the presence of L.M. A.M. confirmed that she had bruises
caused by the Father. The children were subsequently placed in the care of a
family friend, and found dependent as to their Father. Both parents were assigned
case plans by DCF.
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After the Mother completed the therapy and parenting classes prescribed in
her case plan, the children were reunified with her. However, the children
repeatedly refused to participate in visits with the Father, who had still failed to
comply with the case plan or pay child support.
Trial Court Order
In August 2014, a trial court in Miami-Dade County issued an order that
terminated supervision by DCF and limited the ability of the Father to seek future
visitation to the discretion of the children. The trial court noted the facts that the
Mother had completed her post-adjudicatory case plan, while the Father had not
completed his plan and had not paid child support. Further, the court considered
that the children had repeatedly refused visits with their Father notwithstanding
therapist intervention. The court expressly retained jurisdiction for the purpose of
making further orders for the welfare of the children.
District Court Proceedings
The Father sought review of the trial court’s order by the Third District
Court of Appeal. M.M., 170 So. 3d at 841. The Father alleged that the trial court
denied him due process by terminating DCF supervision without a motion and
departed from the essential requirements of the law when it limited his future
contact with his children to the sole discretion of the children. The Third District
denied the due process claim, reasoning that the Father was provided with notice
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through the submission of a Judicial Review Social Study Report pursuant to
Florida Rule of Juvenile Procedure 8.345(b). The district court, however, granted
his second claim and thus quashed the trial court’s order to the extent that it limited
the Father’s contact with the children to the children’s sole discretion.
The Third District recognized that there was a conflict among the district
courts regarding the process by which orders in dependency proceedings are
reviewed. Id. at 841 n.1 (citing J.S. v. Fla. Dep’t of Children & Families, 75 So.
3d 808 (Fla. 1st DCA 2011); S.P. v. Fla. Dep’t of Children & Families, 17 So. 3d
878 (Fla. 1st DCA 2009); R.M. v. Dep’t of Children & Families, 19 So. 3d 1029
(Fla. 5th DCA 2009); M.V.-B. v. Dep’t of Children & Family Servs., 19 So. 3d
381 (Fla. 2d DCA 2009); F.E. v. Dep’t of Children & Families, 1 So. 3d 305 (Fla.
3d DCA 2009)). In F.E., the Third District concluded that an order terminating
supervision is not appealable because such orders do not necessarily conclude
dependency proceedings. Id. (citing §§ 39.521, 39.621, Fla. Stat. (2014); Fla. R.
Juv. P. 8.345; F.E., 1 So. 3d 305). Therefore, the Third District followed its
precedent and treated the Father’s appeal as a petition for writ of certiorari. Id.
This review follows.
ANALYSIS
This question presents a pure question of law and is, therefore, subject to de
novo review. See Jackson-Shaw Co. v. Jacksonville Aviation Auth., 8 So. 3d
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1076, 1084-85 (Fla. 2008). This Court accepted jurisdiction to resolve the express
and direct conflict between the instant case and W.W.. In the case below, the
Third District treated a petition to review an order to terminate DCF supervision as
a petition for a writ of certiorari. In contrast, the First District in W.W. reviewed
an order denying a motion to reinstate supervised visitation as a final order on
appeal. Because both decisions concern the procedure regarding post-dependency
judgment orders that are subject to future modification for purposes of child
welfare and parental visitation, we conclude that conflict exists between the Third
District’s treatment of such orders and that of the First District. To resolve this
conflict, we must determine the proper standard of review for these post-
dependency orders that anticipate future modification.1 Based on the plain
wording of the relevant rule, the fluid nature of child dependency proceedings, and
pertinent statutory law, we conclude that both the legally required and the common
sense approach to such post-dependency orders is review by certiorari.
An appeal from a final order is appropriate when judicial labor has ended.
S. L. T. Warehouse Co. v. Webb, 304 So. 2d 97, 99 (Fla. 1974) (“Generally, the
test employed by the appellate court to determine finality of an order, judgment or
decree is whether the order in question constitutes an end to the judicial labor in
1. We do not address the underlying merits of the claims that were
presented to the Third District.
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the cause, and nothing further remains to be done by the court to effectuate a
termination of the cause as between the parties directly affected.”). These final
orders are reviewable under Florida Rule of Appellate Procedure 9.110 (“Appeal
Proceedings to Review Final Orders of Lower Tribunals and Orders Granting New
Trial in Jury and Non-jury Cases”).
In addition to the final orders appealable under rule 9.110, rule 9.130 permits
review by appeal of certain interlocutory orders. If the non-final order is not listed
under rule 9.130, the review must come by certiorari. Keck v. Eminisor, 104 So.
3d 359, 363-64 (Fla. 2012) (“Generally, an appellate court may not review
interlocutory orders unless the order falls within the ambit of non-final orders
appealable to a district court as set forth in Florida Rule of Appellate Procedure
9.130. In addition, under very narrow circumstances, a party may petition for
certiorari to seek review of a non-final order not otherwise appealable . . . .”);
Cotton States Mut. Ins. v. D’Alto, 879 So. 2d 67, 69 (Fla. 1st DCA 2004)
(“Jurisdiction to hear an appeal from a nonfinal order is limited to the kinds of
orders referred to in rule 9.130 of the Florida Rules of Appellate Procedure.”); see
also Bergh v. Stephens, 175 So. 2d 787, 790 (Fla. 1st DCA 1965) (explaining
expressio unius est exclusio alterius, the principle of statutory construction that
provides that the mention of one thing in a statute implies the exclusion of
another).
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The difference between certiorari review and appellate review is important,
as the standard of review available when a district court considers a matter by
common law certiorari is much higher than when a court reviews a matter as an
appeal. See, e.g., R.M., 19 So. 3d at 1030-31 (noting the dissonance between
certiorari review and review of final appealable orders in the context of
dependency matters). An appeal is a matter of right, whereas the common law writ
of certiorari is an instrument that allows a superior court to direct a lower tribunal
to inform it of the events below in a pending case so that the superior court can
review the proceedings for regularity. See Broward Cty. v. G.B.V. Int’l, Ltd., 787
So. 2d 838, 842 (Fla. 2001). Further, “[t]he [common law] writ functions as a
safety net and gives the upper court the prerogative to reach down and halt a
miscarriage of justice where no other remedy exists.” Id. This discretionary
common law writ is not intended to redress mere legal error, but rather to fill the
gaps between direct appeal and other prerogative writs. Id. This Court has
emphasized that the common law writ functions as an extraordinary remedy, not as
a second appeal. Id. When petitioning for certiorari to seek review of a non-final
order, the petitioner must establish three elements: “(1) the order ‘depart[s] from
the essential requirements of the law,’ and (2) ‘result[s] in material injury for the
remainder of the case (3) that cannot be corrected on post-judgment appeal.’ ”
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Keck, 104 So. 3d at 364 (quoting Williams v. Oken, 62 So. 3d 1129, 1132 (Fla.
2011)).
The First District and the Father in the case below are of the view that in
light of a 2014 amendment to rule 9.130(a)(4), the post-dependency order was to
be treated as an appeal, not a petition for writ of certiorari. Specifically, the W.W.
Court reasoned that because the First, Fourth, and Fifth Districts have recognized
that “an order entered on a post-dependency motion seeking authorized relief that
fully resolves the issues raised in the motion is generally reviewed by appeal
pursuant to Florida Rule of Appellate Procedure 9.130(a)(4),” the 2014 amendment
now renders these kinds of post-dependency motions appealable directly under rule
9.110. W.W., 159 So. 3d at 1000. We disagree. To clear up this confusion, it is
helpful to review the rule as it appeared both prior to and after the amendment.
Prior to 2014, rule 9.130(a)(4) read:
(4) Nonfinal orders entered after final order on motions that
suspend rendition are not reviewable; provided that orders granting
motions for new trial and non-jury cases are reviewable by the method
prescribed in rule 9.110. Other non-final orders entered after final
order on authorized motions are reviewable by the method prescribed
by this rule.
Fla. R. App. P. 9.130(a)(4) (2013). However, in its 2014 amendment, the
committee deleted the second sentence. Rule 9.130(a)(4) now reads:
(4) Orders disposing of motions that suspend rendition are not
reviewable separately from a review of the final order; provided that
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orders granting motions for new trial in jury and non-jury cases are
reviewable by the method prescribed in rule 9.110.
Fla. R. App. P. 9.130(a)(4). In its 2014 Amendment Notes regarding the deletion
of the sentence, the committee explained:
Its deletion clarifies that non-final orders entered after a final order are
no more or less reviewable than the same type of order would be if
issued before a final order. Non-final orders entered after a final order
remain reviewable as part of a subsequent final order or as otherwise
provided by statute or court rule. This amendment resolves conflict
over the language being stricken and the different approaches to
review during post-decretal proceedings that have resulted.
Fla. R. App. P. 9.130 Committee Notes (2014).
The First District in W.W. and the Father in the case below apparently
interpret this amendment to mean that post-judgment orders that have historically
been appealable under the deleted sentence of rule 9.130(a)(4), including post-
dependency judgments, are now appealable as final orders under rule 9.110. This
interpretation, however, is flawed. First, post-dependency orders have not
consistently been reviewed by appeal under rule 9.130(a)(4). See, e.g., J.S., 75 So.
3d at 809 n.1 (First District reasoning that “[t]he order denying the Mother’s
motion for reunification was reviewable by certiorari because, although the order
finally resolved the issue of custody, it reserved jurisdiction to determine the
interrelated issue of visitation,” and thus illustrating that prior to the 2014
amendment to rule 9.130(a)(4), the First District reviewed such orders by
certiorari); F.E., 1 So. 3d at 306 (Third District treating an order terminating
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Departmental supervision as a non-final order reviewable by certiorari); M.V.-B.,
19 So. 3d at 385 (Second District explaining that “Dependency proceedings are
actually concluded by an order terminating supervision or jurisdiction. . . .
Accordingly, we hold that the orders entered in dependency proceedings after the
entry of the order adjudicating dependency and before an order terminating
supervision or jurisdiction are not appealable pursuant to 9.130(a)(4). When
appropriate, such orders may be challenged by common law certiorari.”) (emphasis
supplied) (citations omitted); In re A.W.P., Jr., 10 So. 3d 134, 135-36 (Fla. 2d
DCA 2009) (treating an appeal from an order entered after dependency
adjudication as petition for writ of certiorari). But see B.M. v. Dep’t of Children &
Families, 981 So. 2d 1229, 1230 (Fla. 4th DCA 2008) (treating termination of
departmental supervision order as a final, appealable order); R.M., 19 So. 3d at
1031 (Fifth District reviewing a post-disposition dependency order as appealable
pursuant to rule 9.130(a)(4)).
Second, the committee removed in part, post-judgment orders from the
rule. It does not follow that the removal of these orders from the rule
automatically qualifies them as appealable final orders under rule 9.110. As
previously explained, non-final orders that are not listed as appealable
interlocutory orders under rule 9.130 must be reviewed by certiorari. Keck, 104
So. 3d at 363-64. Notably, rule 9.130(a)(3) does not list post-dependency orders as
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non-final orders reviewable by interlocutory appeal.2 While rule
9.130(a)(3)(C)(iii) does include “family law matters,” this Court has held that
2. Specifically, rule 9.130(a)(3) enumerates the following non-final orders
as appealable to the district courts:
(3) Appeals to the district courts of appeal of non-final orders
are limited to those that
(A) concern venue;
(B) grant, continue, modify, deny, or dissolve
injunctions, or refuse to modify or dissolve injunctions;
(C) determine
(i) the jurisdiction of the person;
(ii) the right to immediate possession of property,
including but not limited to orders that grant, modify,
dissolve or refuse to grant, modify, or dissolve writs of
replevin, garnishment, or attachment;
(iii) in family law matters:
a. the right to immediate monetary relief;
b. the rights or obligations of a party
regarding child custody or time-sharing under a
parenting plan; or
c. that a marital agreement is invalid in its
entirety;
(iv) the entitlement of a party to arbitration, or to
an appraisal under an insurance policy;
(v) that, as a matter of law, a party is not entitled
to workers’ compensation immunity;
(vi) whether to certify a class;
(vii) that, as a matter of law, a party is not entitled
to absolute or qualified immunity in a civil rights claim
arising under federal law;
(viii) that a governmental entity has taken action
that has inordinately burdened real property within the
meaning of section 70.001(6)(a), Florida Statutes;
(ix) the issue of forum non conveniens;
(x) that, as a matter of law, a party is not entitled
to immunity under section 768.28(9), Florida Statutes; or
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“child dependency proceedings under chapter 39 do not fall within Florida Rule of
Appellate Procedure 9.130(a)(3)(C)(iii).” Dep’t of Health & Rehab. Servs. v.
Honeycutt, 609 So. 2d 596, 597 (Fla. 1992). Moreover, this Court has reasoned
that district courts reviewing child dependency proceedings already have the
ability to review “egregious cases” by certiorari. Id. Therefore, because post-
dependency orders are not listed under rule 9.130, they cannot be reviewed as
appealable interlocutory orders. It follows that such an order may only be
reviewable by appeal if it is final.
The retention of jurisdiction over a matter, notwithstanding the issuance of
an order, suggests judicial labor is not over. Here, the trial court expressly retained
jurisdiction for the purpose of future modification as necessary for the general
welfare of the children. Although there appears to be confusion among the district
courts as to whether these kinds of orders are final, we agree with those district
courts that conclude that an order retaining jurisdiction for the purpose of future
modification is not final. See, e.g., J.S., 75 So. 3d at 809 n.1; M.V.-B., 19 So. 3d at
385; A.W.P., Jr., 10 So. 3d at 135; F.E., 1 So. 3d at 306. Especially in cases
(xi) that, as a matter of law, a party is not entitled to
sovereign immunity.
(D) grant or deny the appointment of a receiver, and terminate
or refuse to terminate a receivership.
Fla. R. App. P. 9.130.
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involving child dependency, it is crucial to adopt a standard of review that will be
less likely to disrupt the process for the children involved. The fluid nature of
certiorari review renders it more adapted to problems with post-judgment than
appellate review. Rather than attempting to force a non-final, post-dependency
order neatly into an appeal, we determine that the more logical approach is to
review these non-final orders by certiorari.
The reasoning that retention of jurisdiction for the purpose of modification
does not constitute an end to judicial labor is also consistent with other areas of
civil law. See, e.g., Wilson v. Wilson, 906 So. 2d 356, 357 (Fla. 1st DCA 2005)
(order dissolving marriage but retaining jurisdiction over issues such as child
support, child custody, alimony, or property issues is not final); Shaw v. Fla. Steel
Corp., 794 So. 2d 708, 708 (Fla. 1st DCA 2001) (in a worker’s compensation case,
a reservation of jurisdiction to order payment rendered the order non-final and
nonappealable); Sunny Pines Convalescent Ctr. v. Walters, 422 So. 2d 1079, 1079
(Fla. 1st DCA 1982) (in the context of an employer/carrier appeal of an award of
temporary total disability benefits, an order was non-final and non-appealable
because the court had retained jurisdiction to determine attorney’s fees); Fla. Farm
Bureau Cas. Ins. Co. v. Fichera, 385 So. 2d 183, 184 (Fla. 4th DCA 1980) (order
finding that appellee was entitled to attorney’s fees and retaining jurisdiction to
determine amount at a later date was not a final judgment subject to plenary
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appeal, nor a non-final order subject to interlocutory appeal under rule
9.130(a)(3)).
Further, the treatment of post-dependency orders as non-final because of the
possibility of future modification is compatible with section 39.621(9), Florida
Statutes. Specifically, section 39.621(9) provides that the court shall hold a
hearing to determine whether modification of an order is appropriate if a parent
whose parental rights have not been terminated submits a motion for reunification
or increased contact with the child. § 39.621(9), Fla. Stat. (2015). Given that the
Father’s parental rights have not been terminated, nothing prohibits him from
moving to modify the order to increase visitation. Indeed, the statute actually
affords him the right to do so. Therefore, this order did not fully resolve the issues
in the case.
In sum, the plain wording of the rule combined with the lack of finality
inherent to these orders renders certiorari the correct legal and more appropriate
mechanism for review to ensure as little disruption in the process for children as
possible. Accordingly, we hold that a post-dependency order that is subject to
future modification for purposes of child welfare and parental visitation is a non-
final order reviewable by certiorari. We thus affirm the decision below and
disapprove the First District’s decision in W.W. to the extent that it conflicts with
this opinion.
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It is so ordered.
LABARGA, C.J., and PARIENTE, QUINCE, POLSTON, and PERRY, JJ.,
concur.
CANADY, J., dissents with an opinion.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
CANADY, J., dissenting.
Because the parties are seeking a purely advisory opinion—an opinion that
has no bearing on the disposition of this case—I would dismiss this proceeding.
“It is the function of a judicial tribunal to decide actual controversies by a
judgment which can be carried into effect, and not . . . to declare principles or rules
of law which cannot affect the matter in issue.” Montgomery v. Dep’t of Health &
Rehab. Servs., 468 So. 2d 1014, 1016-17 (Fla. 1st DCA 1985).
Application for Review of the Decision of the District Court of Appeal - Direct
Conflict of Decisions
Third District - Case No. 3D14-2372
(Miami-Dade County)
Eugene Francis Zenobi, Criminal Conflict and Civil Regional Counsel, Third
Region, and Kevin Coyle Colbert, Miami, Florida,
for Petitioner
Karla F. Perkins, Appellate Counsel, Florida Department of Children and Families,
Miami, Florida, and Rosemarie Elizabeth Farrell, Appellate Counsel, Florida
Department of Children and Families, Orlando, Florida,
for Respondent Florida Department of Children and Families
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