       Third District Court of Appeal
                                State of Florida

                         Opinion filed September 10, 2014.
          Not final until disposition of timely filed motion for rehearing.

                                ________________

                                No. 3D14-1020
                          Lower Tribunal No. 11-15315
                              ________________


                               A.A., the mother,
                                     Petitioner,

                                          vs.

              Department of Children and Families, et al.,
                                   Respondents.



     A Petition for Writ of Certiorari to the Circuit Court for Miami-Dade
County, Cindy S. Lederman, Judge.

      Joanne M. Postel, for petitioner.

      Karla Perkins, for Department of Children and Families; Hillary Kambour,
for Guardian ad Litem Program.


Before LAGOA, EMAS and FERNANDEZ, JJ.

      EMAS, J.
      A.A., the Mother/Petitioner (“Petitioner”), has filed a petition for writ of

certiorari seeking review of the trial court’s order denying her motion for

modification of a permanency order and reunification with her children. For the

reasons that follow, we grant the petition and quash the order below.

      In 2011 the Petitioner’s children were adjudicated dependent and, in 2012,

the trial court closed the case with the entry of an order placing the children in a

permanent guardianship under the care and supervision of the children’s stepfather.

The terms of the permanency order permitted supervised visitation by Petitioner.

      In October 2013, Petitioner filed a sworn motion to reopen the case and

sought modification of the permanency order and reunification with the children.

The trial court reopened the case and, in December 2013, ordered a psychological

evaluation of Petitioner. On February 24, 2014, without conducting an evidentiary

hearing, the trial court denied Petitioner’s motion for modification. Petitioner

sought rehearing alleging, inter alia, that the trial court failed to conduct an

evidentiary hearing. The trial court denied the motion for rehearing.

      It is undisputed that the trial court failed to hold an evidentiary hearing

before denying the motion for modification. Petitioner asserts that, as a result, she

was denied her due process right to present evidence and testimony in support of

her motion. We agree. Once a permanency order is in place, section 39.621(9),




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Florida Statutes (2014), places the burden on the parent seeking reunification or

increased contact with the child:

      The permanency placement is intended to continue until the child
      reaches the age of majority and may not be disturbed absent a finding
      by the court that the circumstances of the permanency placement are
      no longer in the best interest of the child. If a parent who has not had
      his or her parental rights terminated makes a motion for reunification
      or increased contact with the child, the court shall hold a hearing to
      determine whether the dependency case should be reopened and
      whether there should be a modification of the order. At the hearing,
      the parent must demonstrate that the safety, well-being, and physical,
      mental, and emotional health of the child is not endangered by the
      modification.

      (Emphasis supplied). See also Fla. R. Juv. P. 8.430(a)-(b)(1).

      In the instant case, the trial court failed to conduct an evidentiary hearing,

denying Petitioner a reasonable opportunity to present evidence and testimony to

meet her burden to “demonstrate that the safety, well-being, and physical, mental,

and emotional health of the child is not endangered by the modification.”        We

reject Respondent’s contention that, because the statute does not expressly require

an evidentiary hearing, none was required. See Dep’t of Children and Families v.

W.H., 109 So. 3d 1269 (Fla. 1st DCA 2013); Dep’t of Children and Families v.

B.D., 102 So. 3d 707 (Fla. 1st DCA 2012). See also, Dep’t of Children and

Families v. R.A., 980 So. 2d 578 (Fla. 3d DCA 2008).




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      Petitioner further contends, and we agree, that the trial court’s order denying

modification fails to contain the findings of fact required by section 39.621(10),

Florida Statutes (2014), which provides:

      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) The compliance or noncompliance of the parent with the case
      plan;
      (b) The circumstances which caused the child's dependency and
      whether those circumstances have been resolved;
      (c) The stability and longevity of the child's placement;
      (d) The preferences of the child, if the child is of sufficient age and
      understanding to express a preference;
      (e) The recommendation of the current custodian; and
      (f) The recommendation of the guardian ad litem, if one has been
      appointed.

      (Emphasis supplied). See also Fla. R. Juv. P. 8.430(b)(2).

      The order in the instant case recited the result of the psychological

evaluation (which indicated that Petitioner’s mental illness has not significantly

improved to the point where she could adequately and safely parent her children),

and indicated that the guardian ad litem recommended closing the case.1

1 In her sworn motion for modification and reunification, Petitioner describes a
variety of actions she took to comply with her reunification case plan and attached
seven supporting exhibits. See § 39.621(10)(a). The order denying the motion fails
to articulate whether, and the extent to which, the trial court considered these
allegations and exhibits. The motion also: details the steps Petitioner has taken to




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      The combined failures to hold an evidentiary hearing and to make written

factual findings addressing the requisite factors enumerated in section 39.621(10),

constitute a departure from the essential requirements of law, causing material

injury that cannot be remedied on direct appeal.2 W.H., 109 So. 3d at 1270.

      We therefore grant the petition, quash the order under review and remand

this cause to the trial court to conduct an evidentiary hearing and render an order in

compliance with section 39.621 (9) and (10), Florida Statutes.




obtain and maintain stable employment and housing; describes the circumstances
which initially resulted in the children’s dependency and how those circumstances
have been resolved; and avers that Petitioner’s children and the current custodian
agree with the modification sought by the motion. See § 39.621(10)(b), (c), (d)
and (e). The trial court’s order fails to address these factors.
2 There is generally no right to review by appeal of nonfinal orders in child
dependency proceedings. Dep’t of Health and Rehab. Servs. v. Honeycutt, 609 So.
2d 596 (Fla. 1992); In re R.B., 890 So. 2d 1288 (Fla. 2d DCA 2005); C.B. v. Dep’t
of Children and Families, 975 So. 2d 1158 (Fla. 5th DCA 2008). However,
common law certiorari provides a remedy under appropriate circumstances such as
those presented by the instant case. See In re J.H., 979 So. 2d 363 (Fla. 2d DCA
2008); A.P. v. Dep’t of Children and Families, 957 So. 2d 686 (Fla. 5th DCA
2007).




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