Evidentiary Hearings for the Modification of a Permanency Order

Posted on September 26, 2014

On September 10th of this month, the Third District Court of Appeal of Florida (3d DCA), in A.A. v. Dep’t of Children & Families, 2014 Fla. App. LEXIS 14107 (Fla. 3d DCA 2014) held that a failure to hold an evidentiary hearing on a motion for modification of a permanency order and reunification with the appellant’s children denied her the due process to present evidence and testimony in support of her motion.  Therefore the trial court caused material injury that could not be remedied on direct appeal and the case was immediately remanded for an evidentiary hearing.  The 3d DCA explained that the combined failures of the trial court to hold an evidentiary hearing and to make written factual findings addressing the requisite factors enumerated in Fla. Stat. § 39.621(10) (2012) constituted a departure from the essential requirements of Florida guardianship law.

In 2011, the appellant’s (mother) children were adjudicated dependent and soon after, the trial court closed the case with an entry placing the children in a permanent guardianship with the children’s stepfather.  In October of 2013, the appellant filed a sworn motion to reopen the case and sought modification.  In February of 2014, after ordering a psychological evaluation of the mother but without conducting an evidentiary hearing, the trial court denied the motion for modification as well as a subsequent motion for rehearing.  As a result, on appeal, the 3d DCA agreed with the mother’s argument that her due process right to present evidence in support of her motion was violated.  Once a permanency order is in place, the burden is placed on the parent seeking reunification with the child.  The 3d DCA reasoned that a court must hold a hearing to determine whether the dependency case should be reopened and whether there should be a modification upon motion of a parent if no parental rights have been terminated.  In order to end the permanent guardianship, the parent, under Florida law, must demonstrate that the safety, well-being, and health of the child is not endangered by the modification.

Here, the trial court failed to conduct an evidentiary hearing, which denied the mother her procedural opportunity to present and meet her burden of demonstrating the health, safety, and well-being of her children.  Furthermore, the 3d DCA explained that the trial court’s order denying modification failed to contain the findings of fact required by Florida law, which provides that:

The court shall base its decision concerning any motion by a parent for reunification or increased contact with a child on the effect of the decision on the safety, well-being, and physical and emotional health of the child. Factors that must be considered and addressed in the findings of fact of the order on the motion must include: (a) compliance [of the case plan] ; (b) circumstances [that caused the child’s dependency]; (c) stability and longevity of the child’s placement; (d) preferences of the child . . . ; (e) the recommendation of the current custodian; and (f) the recommendation of the guardian ad litem.  See Fla. Stat. § 39.621(10).

Therefore, the 3d DCA held that the combined failures to hold an evidentiary hearing and to make written factual findings addressing the factors enumerated above constituted a departure from the essential requirements of law, and remanded the case to the trial court to conduct a hearing and render an order in compliance with Florida law.

The importance of permanency and guardianship of children should be handled by a competent and experienced attorney.  

If you or anyone you know is in need of representation in actions involving Guardianship, Probate and/or Trust Disputes, or questions pertaining to such proceedings, please contact The Law Offices of Glenn M. Mednick, P.L., at (954) 315-1154 or gmednick@mednicklawgroup.com.

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