       Third District Court of Appeal
                               State of Florida

                           Opinion filed June 8, 2016.

                              ________________

                               No. 3D15-2432
                         Lower Tribunal No. 15-15503
                             ________________


                              F.G., the Father,
                                   Appellant,

                                       vs.

           The Department of Children and Families, et al.,
                                   Appellees.



     An Appeal from the Circuit Court for Miami-Dade County, Maria I.
Sampedro-Iglesia, Judge.

      Herscher & Herscher and Ilene Herscher, for appellant.

      Karla Perkins, for appellee Department of Children & Families; Laura J. Lee
(Sanford), for appellee Guardian ad Litem Program.


Before SALTER, FERNANDEZ and LOGUE, JJ.

      SALTER, J.

                    On Motion for Rehearing or Clarification

      Upon consideration of the motion for rehearing or clarification by the
Department of Children and Families (Department) with respect to our opinion

issued May 25, 2016, in this case, we deny the motion for rehearing, grant the

motion for clarification of the opinion, and substitute the following in its place.

      Counsel for F.G., the father, filed an emergency motion to recall mandate

and for other relief in this case. By separate and prior order, we granted the motion

to recall mandate, and we now withdraw our prior opinion issued December 23,

2015, and substitute the following in its place.        This opinion is intended to

highlight the potential for inconsistent outcomes when separate appeals are filed by

separate parties from the same underlying proceeding and adjudication.

             Single Order of Dependency; Separate Appeals by Parents

      In a single petition, the Department of Children and Families (Department)

filed a dependency shelter petition on behalf of a two-year-old child, A.G., as to

both her mother, B.J., and her father, F.G.        The petition was filed based on

allegations regarding the tragic death of A.G.’s four-month-old sibling, Ab.G, and

the parents’ positive tests for marijuana.

      Thereafter, the Department filed a verified petition for dependency as to

A.G. charging both B.J. and F.G. based on a substantial risk of imminent neglect

and abuse (section 39.01(15)(f), Florida Statutes (2015)) and harm (section

39.01(30)(1)). The petition was heard over the course of two days in September

2015. After hearing all of the evidence, and with both parents present, the trial



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court wrestled with what she termed a “very difficult case” and a “tragedy.” After

assessing the totality of the circumstances, she found A.G. dependent as to both of

the parents, in a single order.

      Each parent commenced a separate appeal; the office of Criminal Conflict

and Civil Regional Counsel for this district represented the mother, and private

counsel was appointed to represent the father. This appeal by the father, F.G. v.

Department of Children and Families, was docketed as case number 3D15-2432

and was ultimately assigned to this panel. Oral argument was not requested or

scheduled.    We issued a per curiam affirmance on December 23, 2015.          No

motions followed, and the mandate issued the following month.

      The mother’s appeal, B.J. v. Department of Children and Families, was

docketed three weeks after the father’s, as case number 3D15-2593, and was

assigned to a completely different panel of judges of this Court. Oral argument

was requested and conducted on March 1, 2016, over two months after the per

curiam affirmance in the father’s case. On April 20, 2016, the panel in that case

issued a detailed and persuasive fourteen-page opinion reversing the adjudication

of dependency as to the mother.

      Promptly after considering the opinion in the mother’s separate appeal,

counsel for the father moved on an emergency basis for the panel in this case to

withdraw the mandate and to consider the analysis in the opinion reversing the



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dependency order in the mother’s appeal.

           Avoiding Inconsistency; Administrative Order AO3D13-06

      What follows is not an assignment of blame or fault. As the primary judge

assigned to the father’s appeal, the author acknowledges responsibility for missing

the relatedness of the cases and not taking some measures—whether consolidation

before a single panel, or a conference between the two panels—to determine

whether facts specific to each parent supported separate outcomes on appeal. That

said, however, we must remind counsel appearing before this Court that they have

a duty to comply with Administrative Order AO3D13-06, accessible on our

website, to file a “Notice of Similar or Related Case,” within ten days from receipt

of the clerk’s acknowledgment of a new case:

            Counsel has a continuing obligation to advise the court of cases
      similar or related to another case pending before this court. Such
      advice shall be given by the filing of a Notice of Similar or Related
      Case not later than ten (10) days after receipt from the clerk of the
      court of an acknowledgment of new case and thereafter within ten
      (10) days of ascertainment of the existence of such a case.

      A notice of the mother’s related case should have been filed in this (the

father’s) case by November 23, 2015, and no such notice was ever filed. In the

mother’s case, a notice of the related case should have been filed by November 23,

2015, and it was instead filed on January 5, 2016. Counsel for the parties in

dependency appeals, and the judges of this Court, review a high volume of cases

year after year.    Nonetheless, all of us must endeavor to identify related


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proceedings promptly so as to avoid inconsistent results and, secondarily, for the

sake of judicial efficiency. The timely filing of notices of the related cases in both

cases, or references to the other parent’s pending appeal in the parties’ briefs in

either or both cases,1 would have assisted the Court in resolving both appeals

consistently and efficiently.

                                The Father’s Appeal

      As the trial court observed, this case was both tragic and difficult.

Reasonable judges can reach, and have reached, different conclusions regarding

the application of Florida law to the record in the underlying dependency case.

Nonetheless, following our review of the father’s emergency motion, the responses

to that motion we required from the Department and the Guardian Ad Litem,2 and

our own review of the analysis and legal authorities cited by our colleagues in the

mother’s separate appeal,3 we now vacate our per curiam affirmance of December

23, 2015, and reverse the adjudication of dependency as to the father, F.G.        In

doing so, we note that the order under review includes numerous findings

1 The per curiam affirmance in this case was actually issued two weeks before the
initial brief in the mother’s case, but was not noted in any of the briefs.
2  Those responses establish that the Department and the GAL do not oppose our
conformance of the opinion and result in the father’s case to the opinion and result
in the mother’s separate appeal.
3  B.J. v. Dep’t of Children & Families, No. 3D15-2593, 2016 WL 1578492 (Fla.
3d DCA Apr. 20, 2016). We adopt and rely upon the analysis in that opinion
insofar as it relates to both parents or to the father alone.

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regarding, and other references to, “the parents.”     The opinion reversing the

adjudication in the mother’s appeal includes such references as well. As a result,

we see no basis to differentiate between the two cases, and we consider the

analysis by our colleagues to be well-reasoned and persuasive.

      Order of adjudication and disposition of dependency reversed and

remanded.




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