S.M., THE MOTHER

v.

DEPARTMENT OF CHILDREN AND FAMILIES, ET AL.

Third District Court of Appeal State of Florida

Opinion filed July³, 2024. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D23-2213 Lower Tribunal No. 23-15321 ________________

S.M., the Mother, Appellant,

vs.

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

An Appeal from the Circuit Court for Miami-Dade County, Michelle Alvarez Barakat, Judge.

Eugene F. Zenobi, Criminal Conflict and Civil Regional Counsel, Third Region, and Kevin Coyle Colbert, Assistant Regional Counsel, for appellant.

Karla Perkins, for appellee Department of Children and Families; Sara Elizabeth Goldfarb, Statewide Director of Appeals, and Laura J. Lee, Assistant Director of Appeals (Tallahassee), for appellee Statewide Guardian ad Litem Office.

Before LOGUE, C.J., and EMAS and LINDSEY, JJ.

LOGUE, C.J.

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S.M., whose minor children were previously adjudicated dependent, appeals the trial court’s order of disposition, which approved the conditions for return set forth in the Department of Children and Families’ ongoing Family Functioning Assessment over the Mother’s objections. We treat this appeal as a petition for writ of certiorari because the order appealed is neither a final order nor an appealable non-final order. See Fla. R. App. P. 9.040(c) (“If a party seeks an improper remedy, the cause must be treated as if the proper remedy had been sought . . . .”). Finding that the trial court’s order does not depart from the essential requirements of the law, we deny the writ.

BACKGROUND

On July⁴, 2023, the Department filed a Dependency Shelter Petition requesting an order for shelter of the Mother’s three minor children. At the time, the oldest of the children was a month away from turning five and the youngest was two months old. The Shelter Petition referenced three reports to the Department on June 22, 2023, June 23, 2023, and July³, 2023, alleging inadequate supervision, substance misuse, and household violence. The first two reports were made by the children’s paternal grandfather and included, among other things, statements that the “[M]other does marijuana every day” and that the Mother “used to shoot up” unknown substances “in the past.” The third report made on July³, 2023, indicated

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JURISDICTION

Although this proceeding was filed as a direct appeal, it does not appear that this Court has appellate jurisdiction because review is sought of a non-final, non-appealable order. “Generally, the test employed by the appellate court to determine finality of an order, judgment or decree is whether the order in question constitutes an end to the judicial labor in the cause, and nothing further remains to be done by the court to effectuate a termination of the cause as between the parties directly affected.” S.L.T. Warehouse Co. v. Webb, 304 So. 2d 97, 99 (Fla. 1974). Here, the disposition order is a post-dependency order approving an ongoing Family Functioning Assessment which sets the conditions for the interlocutory return of the child to the parent. This is clearly a non-final order because judicial labor remains to be conducted below. Nor is the order an appealable non-final order under Florida Rule of Appellate Procedure 9.130(a)(3). See M.M. v. Fla. Dep’t of Child. & Fams., 189 So. 3d 134, 139–40 (Fla. 2016) (“Notably, rule 9.130(a)(3) does not list post-dependency orders as non-final orders reviewable by interlocutory appeal.”). And while Florida Rule of Appellate Procedure 9.146(b) provides that in dependency cases “any parent . . . affected by an order of the lower tribunal . . . may appeal to the appropriate court[,]” the Florida Supreme Court

ANALYSIS

On appeal, the Mother contends the trial court deprived her of due process by “fail[ing] to entertain” her objection to the conditions for return set forth in the Department’s ongoing Family Functioning Assessment, specifically the condition that she complete substance misuse services. She argues her consent plea to the petition for dependency did not relate to substance misuse and the Department failed to properly document said condition for return as required by section 39.521(2). As a result, the Mother

10 court with the following documented information: . . . (h) Identification of the conditions for return[2] which would allow the child to be placed safely back into the home with an in-home safety plan and any safety management services necessary to ensure the child's safety.” § 39.521(2), Fla. Stat. When making this determination, the trial court may consider “[a]ny [ ] relevant and material evidence, including other written or oral reports,” and may rely on evidence “to the extent of its probative value, even though not competent in an adjudicatory hearing.” § 39.521(2), Fla. Stat. (emphasis added). This can, therefore, include hearsay. Cf. R.R. v. Dep't of Child. & Fams., 338 So. 3d 1026, 1029 (Fla. 3d DCA 2022); R.C. v. Dep't of Child. & Fams., 917 So. 2d 241, 242 (Fla. 5th DCA 2005). Here, a review of the record reflects that the trial court properly complied with the foregoing statutory requirements in its disposition hearing and written disposition order. In exercising its discretion and accepting the conditions for return set forth in the Department’s ongoing Family Functioning Assessment, the trial court considered all relevant and material evidence before it, including the reports made by the paternal grandfather,

11 the Child Protective Investigator, and law enforcement regarding the Mother’s substance misuse issues. While the Mother is correct that her consent plea at the adjudicatory hearing and the resulting order of adjudication of dependency did not reference the Mother’s substance misuse issues, this does not mean that the trial court was required to ignore the reports made by the paternal grandfather to the Child Protective Investigator, contained in both the Shelter Petition and the Dependency Petition, that the “mother does marijuana every day” and that the Mother “used to shoot up” unknown substances “in the past.” Nor was the trial court required to ignore the reports from the Child Protective Investigator contained in the ongoing Family Functioning Assessment stating law enforcement advised that the Mother “appeared to be drugged when she was found” and arrested on child neglect charges. See § 39.521(2), Fla. Stat. (providing that “any other relevant and material evidence, including other written or oral reports, may be received by the court in its effort to determine the action to be taken with regard to the child and may be relied upon to the extent of its probative value, even though not competent in an adjudicatory hearing”). The Mother’s contention that the trial court deprived her of due process by “fail[ing] to entertain” her objection to the conditions for return is without

12 merit. The record reflects the Mother was provided an opportunity to be heard on her objection and the trial court gave ample consideration to the Mother’s objection. While the Mother may disagree with the trial court’s ultimate ruling, this is not a due process violation. Accordingly, because the trial court properly exercised its discretion to approve the Family Functioning Assessment with the condition for return that the Mother complete substance misuse services and did not depart from the essential requirements of the law, we deny the petition. Petition denied.