B.G. and C.C. v. Dept. of Children and Families

Third District Court of Appeal
State of Florida
Opinion filed November 23, 2016.
Not final until disposition of timely filed motion for rehearing.
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Nos. 3D16-1510 & 3D16-1509
Lower Tribunal No. 07-15782
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B.G., the mother and C.C., the father,
Appellants,
vs.
Department of Children and Families,
Appellee.
Appeals from the Circuit Court for Miami-Dade County, Ariana Fajardo
Orshan, Judge.
Thomas J. Butler; Eugene F. Zenobi, Criminal Conflict and Civil Regional
Counsel, Third Region, and Kevin Coyle Colbert, Assistant Regional Counsel, for
appellants.
Karla Perkins, for appellee.
Before SUAREZ, C.J., and EMAS and SCALES, JJ.
EMAS, J.
INTRODUCTION
B.G., the mother, and C.C., the father, each appeal a post-dependency order
granting permanent guardianship as to their child, C.N.C. We treat these
consolidated appeals as petitions for writ of certiorari, see M.M. v. Fla. Dep’t of
Children & Families, 189 So. 3d 134 (Fla. 2016),1 and deny both petitions.
BACKGROUND
C.N.C. was initially sheltered from his parents when he was two days old
because the mother tested positive for drugs when she gave birth to him.
Following compliance with their case plans, DCF supervision was terminated and
the parents were given custody of C.N.C. However, shortly thereafter, the mother
made arrangements with Guillermina Miranda, a woman the mother had met at the
Children’s Home Society. Pursuant to those arrangements, Ms. Miranda was to
take care of C.N.C. during the week because the mother did not have transportation
to take the child to and from daycare/school and because, as the mother described
it, she and the father argued a lot. Ms. Miranda and her husband, Diego
1 In M.M. v. Fla. Dep’t of Children & Families, 189 So. 3d 134 (Fla. 2016), the
Florida Supreme Court observed that “[e]specially in cases 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.” Id.
at 137. The Court in M.M. held 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.” Id. at 141.
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Miranda—who were not related in any way to C.N.C.—have taken care of C.N.C.
during the week, including weeknights, since he was a baby, with no financial
support from either parent. This arrangement has continued for nearly nine years.
Under this arrangement with the Mirandas, the mother would take C.N.C. on the
weekends, and the father would sometimes visit the child at that time.2
On September 24, 2014, when C.N.C. was seven years old, he was again
sheltered from his parents based on allegations of domestic violence and
abandonment. The parents consented to the dependency petition, and case plans
were provided for both. C.N.C. was placed in the custody of the Mirandas, and the
original goal was for reunification with his parents, with the completion of their
case plans. The case plan was later modified and on October 28, 2015, DCF filed
a third case plan, changing the goal from reunification to permanent guardianship
due to the parents’ failure to substantially comply with their case plans for more
than a year.
The trial court conducted an evidentiary hearing, and thereafter entered its
order granting permanent guardianship of C.N.C. to the Mirandas. The mother and
2 The mother and father no longer live together. The mother lives with her sister,
who already has custody of the mother’s older child, and the case manager testified
the sleeping arrangements there were not adequate for C.N.C. The case manager
also testified that the father lives in a home with undocumented immigrants and
that the father’s home fails to provide adequate sleeping arrangements as well.
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the father both appealed to this court, and the cases were consolidated for all
purposes on September 22, 2016.
ANALYSIS
Section 39.6221, Florida Statutes (2016), entitled “Permanent guardianship
of a dependent child,” provides, in pertinent part:
(1) If a court determines that reunification or adoption is not in the
best interest of the child, the court may place the child in a permanent
guardianship with a relative or other adult approved by the court if all
of the following conditions are met:
(a) The child has been in the placement for not less than the preceding
6 months.
(b) The permanent guardian is suitable and able to provide a safe and
permanent home for the child.
(c) The court determines that the child and the relative or other adult
are not likely to need supervision or services of the department to
ensure the stability of the permanent guardianship.
(d) The permanent guardian has made a commitment to provide for
the child until the child reaches the age of majority and to prepare the
child for adulthood and independence.
(e) The permanent guardian agrees to give notice of any change in his
or her residential address or the residence of the child by filing a
written document in the dependency file of the child with the clerk of
the court.
(2) In its written order establishing a permanent guardianship, the
court shall:
(a) List the circumstances or reasons why the child's parents are not fit
to care for the child and why reunification is not possible by referring
to specific findings of fact made in its order adjudicating the child
dependent or by making separate findings of fact;
(b) State the reasons why a permanent guardianship is being
established instead of adoption;
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(c) Specify the frequency and nature of visitation or contact between
the child and his or her parents;
(d) Specify the frequency and nature of visitation or contact between
the child and his or her grandparents, under s. 39.509;
(e) Specify the frequency and nature of visitation or contact between
the child and his or her siblings; and
(f) Require that the permanent guardian not return the child to the
physical care and custody of the person from whom the child was
removed without the approval of the court.
...
(5) The court shall retain jurisdiction over the case and the child shall
remain in the custody of the permanent guardian unless the order
creating the permanent guardianship is modified by the court. The
court shall discontinue regular review hearings and relieve the
department of the responsibility for supervising the placement of the
child. Notwithstanding the retention of jurisdiction, the placement
shall be considered permanency for the child.
(6) Placement of a child in a permanent guardianship does not
terminate the parent-child relationship, including:
(a) The right of the child to inherit from his or her parents;
(b) The parents' right to consent to the child's adoption; and
(c) The parents' responsibility to provide financial, medical, and other
support for the child as ordered by the court.
Upon our review of the record, and particularly the transcript of the
proceedings below and the trial court’s thorough and detailed order, we conclude
that petitioners have failed to establish that the trial court departed from the
essential requirements of the law in granting a permanent guardianship for C.N.C.
As the Florida Supreme Court has made clear, “the departure from the essential
requirements of the law necessary for the issuance of a writ of certiorari is
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something more than a simple legal error. A district court should exercise its
discretion to grant certiorari review only when there has been a violation of a
clearly established principle of law resulting in a miscarriage of justice.” Allstate
Ins. Co. v. Kaklamanos, 843 So. 2d 885, 889 (Fla. 2003). The court’s order
granting permanent guardianship clearly delineates and substantively addresses
each of the statutory prerequisites for granting a permanent guardianship under
these circumstances, a fact which the parents do not challenge. Rather, they
contest the court’s findings regarding whether they provided adequate living
arrangements for C.N.C., whether they have substantially complied with their case
plans, and whether permanent guardianship was, in fact, in C.N.C.’s best interest.
Even if meritorious, these points fail to establish that the trial court departed from
the essential requirements of the law. Moreover, there was competent substantial
evidence in the record to support the trial court’s order granting permanent
guardianship; there is therefore no basis to reverse the order. Accordingly, we
deny both petitions.
Petitions denied.
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