C. J. L-M, THE MOTHER v. DEPARTMENT OF CHILDREN AND FAMILIES , 248 So. 3d 1184 ( 2018 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
C.J.L-M., the Mother,
Appellant,
v.
DEPARTMENT OF CHILDREN AND FAMILIES and
GUARDIAN AD LITEM PROGRAM,
Appellees.
No. 4D18-836
[June 6, 2018]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Kirk C. Volker, Judge; L.T. Case No. 2017DP000769JM.
Antony P. Ryan, Regional Counsel, and Paul O’Neil, Assistant Regional
Counsel, Office of Criminal Conflict and Civil Regional Counsel, West Palm
Beach, for appellant.
Thomasina Moore and Rocco J. Carbone, III, Guardian ad Litem
Program, Sanford, for appellee Guardian ad Litem Program.
No brief filed for appellee Department of Children and Families.
WARNER, J.
A mother appeals a final order for adjudication of dependency and order
denying her motion to vacate that default order after she failed to appear
at an arraignment hearing. She contends that the order was void because
she was never served with the petition. We disagree, as she appeared at a
shelter hearing, and thus, service of process was not required pursuant to
section 39.502(2), Florida Statutes (2018). As she was advised of the
arraignment date in the order emanating from the shelter hearing, as well
as the consequences of her failure to appear, the court did not err in
entering the final order of dependency. 1
1 Although the Department conceded error, the Guardian ad Litem did not. We
do not accept the Department’s concession of error.
In December 2017, the Department of Children and Families filed a
verified shelter petition and notified the appellant mother, C.J.L-M., that
her child was taken into custody. The court appointed counsel for the
mother and conducted a shelter hearing, which the mother attended. The
court found probable cause for removal. The shelter order and notice of
hearing listed the date, time, and location of the arraignment hearing
(January 10, 2018). It warned in bold, capitalized font, “FAILURE TO
APPEAR AT THE ARRAIGNMENT HEARING CONSTITUTES CONSENT
TO THE ADJUDICATION OF THE CHILD AS A DEPENDENT CHILD [.]”
The Department filed the dependency petition on January 9, 2018, the
day before the scheduled arraignment hearing. At the arraignment
hearing, the mother did not appear, but her attorney was present. He
argued the court could not find the mother constructively consented to the
dependency order because she was not personally served with the petition.
The Department conceded the mother was not served with the petition,
but it argued the court had personal jurisdiction over her because she
signed for the arraignment date at the shelter hearing and was appointed
counsel. The Department contended under section 39.502(2), Florida
Statutes, appearance at any hearing before the Court obviates the need for
personal service. The court agreed with the Department and entered the
final order of dependency, finding the mother constructively consented to
the dependency petition.
A week later, the mother moved to vacate the adjudication of
dependency. She argued under Florida Rule of Juvenile Procedure 8.225
and section 39.502, Florida Statutes, the clerk was required to issue a
summons upon the filing of the dependency petition and to give her at
least seventy-two hours’ notice of the arraignment hearing. The mother
contended actual knowledge of the hearing did not obviate the need for
service of the petition. At the hearing on the motion, the court again found
that because the mother was given actual notice of the hearing, she
constructively consented to the dependency order. The court denied the
motion and the mother appeals.
The trial court correctly ruled that the mother’s personal appearance
at the shelter hearing obviated the need for service of process. Section
39.502(2), Florida Statutes, provides that, “Personal appearance of any
person in a hearing before the court obviates the necessity of serving
process on that person.” This same provision is included in Florida Rule
of Juvenile Procedure 8.225(a)(3)(C), which states, “Personal appearance
of any person in a hearing before the court eliminates the requirement for
serving process upon that person.” Because the mother personally
2
appeared at the shelter hearing, no service was required. She also received
and signed the notice of the date and time of the arraignment hearing,
which included the admonishment that failure to appear at the hearing
would result in an adjudication of dependency.
The mother argues that section 39.502(2) should not be construed as
obviating the need for the service of the petition for dependency when the
parent has personally appeared at the shelter hearing, a distinct
proceeding prior to the petition for dependency being filed. Her
interpretation is not supported by the statutory language. The only service
of process required on the party is service of the dependency petition, and
thus, that is the only service which could be obviated by section 39.502.
Further, the shelter petition is prefatory to the filing of the dependency
petition, and therefore, appearance at that hearing is part of the overall
dependency process, even if they are distinct parts of the proceedings
involving the child in question. 2 Florida Rule of Juvenile Procedure
8.305(c)(8) requires that a shelter order contain written findings that “the
court notified the parents or legal custodians of the time, date, and
location of the next dependency hearing, and of the importance of their
active participation in all subsequent proceedings and hearings [.]”
(emphasis added). The order issued in this case complied with that
requirement. The mother even signed for the arraignment date, reflecting
both her presence at the shelter hearing and her acknowledgment of the
date and time of the arraignment hearing, as well as the consequences of
failing to appear.
The mother’s reliance on N.L. v. Department of Children and Family
Services, 960 So. 2d 810 (Fla. 3d DCA 2007), and S.H. v. Department of
Children and Families, 837 So. 2d 1117 (Fla. 4th DCA 2003), is misplaced.
In both cases, the parent had not appeared at a hearing. Thus, section
39.502(2) did not create jurisdiction over the parent prior to the filing of
the petition for dependency. 3 In S.H., we specifically noted that section
39.502(2) could not apply because, while the parent was present at the
courthouse on the day of the arraignment hearing and signed an
2 We note that the same case number is on the shelter order as on the petition
for dependency, thus showing that they are part of the same case.
3 In N.L., the mother appeared after the hearing had concluded and the shelter
order was entered. 960 So. 2d at 811. In S.H., the petition for dependency was
filed and the father failed to appear at the arraignment hearing. 837 So. 2d at
1117. The facts in the opinion do not mention that a shelter hearing preceded
the petition for dependency.
3
attendance sheet outside the courtroom, he left before the hearing began.
837 So. 2d at 1117-18.
To adopt the mother’s position would require us to rewrite the
applicable statutes and rules, something we have no authority to do. The
trial court correctly ruled that the mother’s presence at the shelter hearing
obviated the need for service of process of the dependency petition. Her
failure to attend the arraignment hearing, of which she had notice through
the shelter order, constituted a constructive consent to the adjudication of
dependency.
Affirmed.
TAYLOR and LEVINE, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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