Third District Court of Appeal
State of Florida
Opinion filed March 2, 2022.
Not final until disposition of timely filed motion for rehearing.
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No. 3D22-13
Lower Tribunal No. 21-15087
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R.R., The Mother,
Petitioner,
vs.
Department of Children and Families, et al.,
Respondents.
A Writ of Certiorari to the Circuit Court for Miami-Dade County, Rosy
Aponte, Judge.
Eugene F. Zenobi, Criminal Conflict and Civil Regional Counsel, Third
Region, and Kevin Coyle Colbert, Assistant Regional Counsel, for petitioner.
Karla Perkins, for respondent Department of Children and Families;,
Sara Elizabeth Goldfarb and Stephanie E. Novenario (Tallahassee), for
respondent Guardian ad Litem.
Before LOGUE, HENDON, and LOBREE, JJ.
LOGUE, J.
R.R., the mother, whose minor children were adjudicated dependent,
petitions for a writ of certiorari to quash a non-final order that modified the
goal of her case plan from reunification to adoption. The question presented
is whether inadmissible hearsay qualifies as “competent evidence” of the sort
required to amend a case plan under Rule 8.420(4) of the Florida Rules of
Juvenile Procedure. We hold that it does not and issue the writ.
JURISDICTION
Because the order under review changed the goal of the case plan
from reunification to adoption, the Department is no longer required to
provide services with the goal of reunification. This circumstance constitutes
irreparable harm sufficient to meet the jurisdictional prerequisites for granting
certiorari relief. S.C.P. v. Dep't of Child. & Fams.,
220 So. 3d 1290, 1290–91
(Fla. 3d DCA 2017) (granting a petition for certiorari where a court changed
a case plan from reunification to adoption without providing the required
hearing). In so holding, we note that this is not a case like M.L. v. Department
of Children & Families,
282 So. 3d 1022 (Fla. 3d DCA 2019), where we found
no irreparable harm when a court made a similar change in the goal of a
case plan but also ordered the continuation of reunification services.
BACKGROUND
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The two minor children at issue, A.S. and L.R., were sheltered from the
Mother on March 2, 2021. The Mother’s case plan had a primary goal of
reunification and a projected date of November 12, 2021. The Mother’s case
plan required her to undergo substance abuse treatment, among other
things. After an August 2021 judicial review hearing, the trial court found the
mother to be partially compliant with the case plan because she had entered
an inpatient substance abuse program.
Later, the Department sought to change the goal of the case plan from
reunification to adoption. It was concerned that the Mother had dropped out
of the inpatient program, that the Mother was failing to maintain contact with
the Department, and that the childrens’ status was not moving towards a
permanent resolution within the one-year period mandated by section
39.6011(d), Florida Statutes. An evidentiary hearing was held on November
15, 2021.
One factual issue concerned whether the Mother was unable to be
contacted and had failed to visit the children. Apparently, the case manager
in charge of this matter had left the Department’s employment and was
unavailable to testify. On this issue, the current case manager testified that
she had not yet personally attempted to contact the mother. The supervisor
of the prior case manager testified that certain records made by the prior
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case manager were business records and the trial court admitted those
records over objection. Those records indicated that the prior case manager
had unsuccessfully attempted to telephone the Mother on September 29,
2021 and October 14, 2021. The records also indicated, however, that the
Department and the Mother had contact over the telephone on October 19,
2021. In that last contact, the Mother stated she was seeking service,
reunification, and visitation. The supervisor also testified that certain logs,
not admitted into evidence, indicated the mother had not visited the children.
The second factual issue concerned whether the Mother had been
unsuccessfully discharged from her inpatient substance abuse program. On
this point, the evidence consisted of the supervisor testifying to the contents
of conversations with the previous case manager and records (not entered
into evidence) from the inpatient provider.
After the hearing, the trial court rendered the order under review
changing the goal of the case plan as the Department requested. The Mother
timely petitioned for review. In her petition to this Court, the Mother contends
that, while the Court conducted an evidentiary hearing, the evidence on the
core issues was limited to inadmissible hearsay.
ANALYSIS
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The governing rule provides that the “case plan may be amended by
the court or on motion of any party at any hearing to provide appropriate
services to the child if there is competent evidence demonstrating the need
for the amendment.” Fla. Rule Juv. P. 8.420 (4). The parties disagree over
whether hearsay qualifies as “competent evidence demonstrating the need
for the amendment.”
The Mother argues, by negative implication, hearsay is not admissible
in hearings to amend case plans because hearsay in the form of reports is
expressly allowed in three types of hearings, none of which are hearings to
change case plans. See Fla. R. Juv. P. 8.305(5) (hearing to determine
probable cause at a shelter hearing); Fla. R. Juv. P. 8.415(5) (hearing to
conduct a judicial review of progress and compliance with case plan, which
does not involve, but may trigger a hearing to amend the case plan); §
39.521, Fla. Stat. (2021) (a hearing concerning the temporary disposition of
a child that has been adjudicated dependent or taken into custody because
the parents could not be located). Because hearsay is expressly allowed in
certain hearings, she argues, by implication it is not allowed in other
hearings, like a hearing to amend a case plan.
In contrast, the Department argues that hearsay can qualify as
“competent evidence demonstrating the need for the amendment.” It does
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so by also making an argument based on negative implication. It notes that
the Juvenile Rules expressly require the Rules of Evidence to be followed in
three types of hearings. See Fla. R. Juv. P. 8.330(a) (adjudicatory hearings);
Fla. R. Juv. P. 8.347(g)(1) (supplemental adjudicatory hearings); Fla. R. Juv.
P.8.525(a) (parental termination hearings). Because the express
requirement is limited to adjudicatory hearings, the Department argues that,
by implication, hearsay is admissible in other hearings that are non-
adjudicatory like a hearing to amend a case plan.
Because of these conflicting inferences, this case is one of those that
cannot be resolved by argument from negative implication. “Virtually all the
authorities who discuss the negative-implication canon emphasize that it
must be applied with great caution, since its application depends so much
on context.” Antonin Scalia & Bryan A. Garner, Reading Law: The
Interpretation of Legal Texts 107 (2012)). Because this maxim is easily
misapplied it has been dubbed “a valuable servant, but a dangerous
master.” Crews v. Fla. Pub. Employers Council 79, AFSCME,
113 So.3d
1063, 1071–72 (Fla. 1st DCA 2013) (citation omitted). See De La Osa v.
Wells Fargo Bank, N.A.,
208 So. 3d 259, 260 (Fla. 3d DCA 2016) (en banc)
(declining to accept a negative implication when interpreting Rule 1.540 of
the Rules of Civil Procedure).
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We therefore return to basic principles. Rule 90.103 of the Florida
Rules of Evidence provides that the rules apply “to civil actions and all other
proceedings pending on or brought after October 1, 1981.” While the specific
exceptions allowing hearsay like those expressly made in Rules 8.330(a),
8.347(g)(1), and 8.525(a) discussed above govern over this general rule in
those specific hearings, this general statement regarding the broad
application of the rules of evidence in court proceedings strongly suggests
that the rules of evidence govern where a rule refers, like the one at issue in
this case, to “competent evidence.”
We further note that a reference in a now-repealed statute to
“competent evidence” being required to amend a case plan has been
interpreted to exclude hearsay. R.C. v. Dep't of Child. & Fams.,
917 So. 2d
241, 242 (Fla. 5th DCA 2005).
Finally, and more specifically, a case plan is initially approved based
upon facts established at the adjudicatory hearing upon which the order of
dependency is based. Fla. R. Juv. P. 8.410(4) (approval of a case plan must
be based on “the facts, circumstances, and problems on which the court
based its order of dependency for the child.”). The adjudicatory hearing upon
which the order of dependency is based must utilize “the rules of evidence
in use in civil cases.” Fla. R. Juv. P. 8.330(a). If the case plan can only be
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approved by facts based on use of the rules of evidence, it stands to reason
that the case plan can also only be amended by facts based on the use of
the rules of evidence.
For these reasons, we concluded that inadmissible hearsay does not
qualify as “competent evidence” of the sort required to amend a case plan
under Rule 8.420(4) of the Florida Rules of Juvenile Procedure. This higher
quality of evidence comports with the serious nature of a change in the case
plan, like the one at issue, resulting in the withdrawal of services to reunify
the parent and child and the re-focusing of the Department’s resources to
the termination of parental rights.
We are sympathetic with the outsized demands placed on the
Department and the limited resources provided to it. Nevertheless, the
Supervisor’s verbal testimony to the contents of the visitation logs and of the
records of the third-party inpatient substance abuse program (which were
not themselves entered into evidence) constitutes hearsay. This hearsay
does not provide a legitimate evidentiary basis to find that the Mother has
not visited the children or that she improperly left her inpatient substance
abuse program. At the same time, the records of the absent case manager
of the two unsuccessful attempts to reach the mother and the subsequent
successful contact, even if potentially admissible under the business records
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exception (which we do not decide), fall far short of providing an evidentiary
basis sufficient to find that the Mother was unreachable or failing to comply
with the case plan justifying a change in the goal of the plan from reunification
to adoption.
Petition granted; order quashed.
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