          Supreme Court of Florida
                                   ____________

                                   No. SC18-1372
                                   ____________

                                     D.M., etc.,
                                     Petitioner,

                                         vs.

                                    M.D., etc.,
                                    Respondent.

                                    June 6, 2019

PER CURIAM.

      We initially accepted jurisdiction to review the decision of the Fifth District

Court of Appeal in D.M. v. M.D., 247 So. 3d 713 (Fla. 5th DCA 2018), based on

express and direct conflict. See art. V, § 3(b)(3), Fla. Const. After further

consideration, we conclude that jurisdiction was improvidently granted.

Accordingly, we hereby discharge jurisdiction and dismiss this review proceeding.

      It is so ordered.

CANADY, C.J., and POLSTON, LUCK, and MUÑIZ, JJ., concur.
LAWSON, J., concurs specially with an opinion, in which LAGOA, J., concurs.
LABARGA, J., dissents with an opinion.

NO MOTION FOR REHEARING WILL BE ALLOWED.
LAWSON, J., concurring specially.

      I fully agree with Justice Labarga that the trial court’s failure to make

written findings in this case rendered meaningful appellate review impossible and

was therefore not harmless. However, the Fifth District’s error in concluding

otherwise under the particular facts of this case does not create express and direct

conflict with any decision of this Court or another district court of appeal. To the

extent there is such conflict, it is not apparent on the face of the Fifth District’s

opinion and, therefore, cannot serve as a basis for our jurisdiction. See Reaves v.

State, 485 So. 2d 829, 830 (Fla. 1986).

      Initially, I voted to accept jurisdiction based upon the petitioner’s argument

that the Fifth District’s application of a harmless error standard conflicted with

cases from other district courts of appeal applying a per se rule of reversal

whenever written findings required by law were not made, and where the issue was

preserved for appellate review. See Callwood v. Callwood, 221 So. 3d 1198, 1201

(Fla. 4th DCA 2017); Dep’t of Children & Families v. J.S., 183 So. 3d 1177, 1183

(Fla. 4th DCA 2016); Kennedy v. Kennedy, 60 So. 3d 466, 469 (Fla. 2d DCA

2011); Farley v. Farley, 800 So. 2d 710, 711-12 (Fla. 2d DCA 2001); Shoffner v.

Shoffner, 744 So. 2d 1157, 1157-58 (Fla. 1st DCA 1999); Staton v. Staton, 710 So.

2d 744, 745 (Fla. 2d DCA 1998). Upon closer examination, however, all of the

purported conflict cases are silent as to whether the harmless error test was


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considered, and none expressly state that a per se reversal rule is being applied.

Because I conclude that there is no conflict apparent on the face of the opinion

below and a decision of another district court of appeal, or our Court, I agree with

the majority that we do not have jurisdiction.

LAGOA, J., concurs.

LABARGA, J., dissenting.

      I dissent to discharge of this case because the error that occurred was not

harmless. The decision below provides, in pertinent part:

             D.M. appeals a final order denying her petition to terminate the
      parental rights of M.D., the biological father of their two children, in
      conjunction with a proceeding for a stepparent adoption under chapter
      63, Florida Statutes (2015). D.M. argues that the trial court erred in
      failing to set forth specific findings of fact to support its conclusion
      that M.D. had not abandoned his children. . . .
             D.M.’s petition sought to terminate M.D.’s parental rights
      based on his ninety-seven-month term of incarceration in prison
      followed by ten years of sex offender probation. D.M. alleged that
      M.D.’s term of incarceration constituted a significant portion of the
      children’s minority. Alternatively, she contended that continuing the
      parental relationship with M.D. would be harmful to the children and,
      for this reason, termination of M.D.’s parental rights would be in the
      best interests of the children. See § 63.089(4)(b)1. & 3., Fla. Stat.
      (2015).
             Following an evidentiary hearing, the trial court denied D.M.’s
      petition. As D.M. correctly observes, the trial court’s order does not
      include written findings addressing the criteria set forth in section
      63.089(4), as required by section 63.089(5). However, the failure to
      make the required findings can constitute harmless error when, as
      here, our review is not hampered by their absence.




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D.M. v. M.D., 247 So. 3d 713, 713-14 (Fla. 5th DCA 2018) (footnote omitted).

The Fifth District affirmed the denial order, concluding the lack of the required

written findings constituted harmless error. Id. at 714.

      While I agree with the Fifth District that the failure to make the required

written findings under section 63.089(5) is subject to harmless error review, the

error here cannot be deemed harmless. In the civil context, where a claim is

preserved: 1

      To test for harmless error, the beneficiary of the error has the burden
      to prove that the error complained of did not contribute to the verdict.
      Alternatively stated, the beneficiary of the error must prove that there
      is no reasonable possibility that the error contributed to the verdict.
Special v. W. Boca Med. Ctr., 160 So. 3d 1251, 1256 (Fla. 2014). Here, the trial

court’s failure to make the statutorily required written findings hampered

meaningful appellate review, such that it was not possible for the district court to

evaluate whether the error was harmful under the applicable standard. Indeed, the

absence of these findings renders it impossible to determine upon what the trial

court based its conclusion that abandonment was not proven, or if the reasoning

underlying that decision was proper.




       1. The mother properly challenged the sufficiency of the trial court’s denial
order, noting the lack of the statutorily required written findings.


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      Accordingly, I would keep jurisdiction, quash D.M., and remand to the Fifth

District with instructions that this case further be remanded to the trial court to

make the statutorily required written findings. See e.g., Williams v. Williams, 923

So. 2d 606, 608 (Fla. 2d DCA 2006) (concluding in a dissolution of marriage

proceeding that the failure to make the required statutory findings did not

constitute harmless error because, without the findings, the appellate court could

not determine why the trial court did not award alimony to the former spouse or

whether the decision was a proper exercise of the trial court’s discretion).

Application for Review of the Decision of the District Court of Appeal – Direct
Conflict of Decisions

      Fifth District - Case No. 5D18-473

      (Orange County)

Michael M. Brownlee of The Brownlee Law Firm, P.A., Orlando, Florida,

      for Petitioner

Elizabeth Siano Harris of Harris Appellate Law Office, Mims, Florida,

      for Respondent




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