D.M., etc. v. M.D., etc. , 272 So. 3d 1229 ( 2019 )

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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