       Third District Court of Appeal
                               State of Florida

                            Opinion filed July 1, 2015.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D14-2372
                         Lower Tribunal No. 04-15864
                             ________________


                              M.M., the father,
                                    Petitioner,

                                        vs.

             Department of Children and Family Services,
                                   Respondent.



      A Writ of Certiorari to the Circuit Court for Miami-Dade County, Rosa C.
Figarola, Judge.

     Eugene F. Zenobi, Criminal Conflict and Civil Regional Counsel, Third
Region of Florida, and Kevin Coyle Colbert and Cathi Gordon Graham, Assistant
Regional Counsel, for petitioner.

      Karla Perkins, Appellate Counsel for Department of Children and Families,
respondent.


Before SUAREZ, C.J., and SHEPHERD and LOGUE, JJ.

      SHEPHERD, J.
      M. M., the father of the two dependent children in this case, seeks review of

an order terminating the Department of Children and Families’ supervision of the

children on the basis that the children have achieved permanency with the mother.1

We deny the petition insofar as it seeks to quash that portion of the trial court order

terminating departmental supervision of the children. We grant the petition to the

extent that the order limits the father’s ability to seek contact with his children in

the future.

      On the first point, the father argues the order denied him due process

because departmental supervision was terminated without a motion. The father is

incorrect. Florida Rule of Juvenile Procedure 8.345(b) states, “[A]ny party can

request termination of agency supervision or the jurisdiction of the court by a

written motion or in a written report to the court.” (emphasis added). In this

case, the Department requested termination of supervision in the Judicial Review

and Social Study Report filed with the court. The father’s attorney acknowledged


1There appears to be a conflict among the districts regarding the proper method for
reviewing certain orders in dependency proceedings. See 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). Because an order
terminating supervision does not necessarily end a dependency proceeding, see §§
39.521, 39.621, Fla. Stat. (2014); Fla R. Juv. P. 8.345, and based on this court’s
conclusion in F.E. that such an order is not appealable, we treat the father’s notice
of appeal and initial brief as a petition for writ of certiorari.

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receiving this report prior to the Judicial Review Hearing and never challenged the

request for termination of supervision below. Thus, there is no departure from the

essential requirements of law on this point.

      On the second point, we reach a different result.           It is axiomatic in

dependency proceedings that “[t]he courts are charged with the duty of ensuring

the best interests of the children are advanced.” B.Y. v. Dep’t of Children &

Families, 887 So. 2d 1253, 1256 (Fla. 2004). It follows, a fortiori, that a trial court

has discretion to restrict and even terminate a parent’s visitation rights when it is

necessary to protect the welfare and best interest of the child. See F.E., 1 So. 3d at

305. In this case, the dependency court denied the father visitation rights with his

children at this time based upon expert testimony and reports which revealed that

the children are in fear of the father and would suffer serious mental distress from

any present contact with him. There is ample evidence in the record to support this

decision.

      We do agree with the father however, that the trial court departed from the

essential requirements of law by restricting decisions concerning his future contact

with his children solely to their discretion.     Section 39.621(9) of the Florida

Statutes affords the father the unqualified ability to return to the dependency court

to seek modification or elimination of any court ordered restrictions on the father’s

visitation rights. F.E., 1 So. 3d at 306. Although the wishes of the children in this



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case, who are at or near their teenage years, may, as a practical matter, impact the

father’s future contacts and relationship with them, the dependency court has a

non-delegable duty to consider any motion for modification or for increased

contact filed by the father in the future. Id.; see also §39.621, Fla. Stat. (2014) (“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 . . .

.”). Accordingly, we quash the order of the trial court insofar as it limits the

father’s ability to seek future contacts solely to the discretion of the children.

      Petition granted in part, denied in part.




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