# Third District Court of Appeal

State of Florida

Opinion filed November 23, 2016.

Not final until disposition of timely filed motion for rehearing.

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Nos. 3D16-1510 & 3D16-1509

Lower Tribunal No. 07-15782

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### B.G., the mother and C.C., the father,

Appellants,

vs.



### Department of Children and Families

,

Appellee.

Appeals from the Circuit Court for Miami-Dade County, Ariana Fajardo

Orshan

, Judge.

Thomas J. Butler; Eugene F. Zenobi, Criminal Conflict and Civil Regional

Counsel, Third Region, and Kevin Coyle Colbert

, Assistant Regional Counsel, for

appellants.

Karla Perkins

, for appellee.

Before SUAREZ, C.J., and EMAS and SCALES, JJ.

EMAS, J.INTRODUCTION

B.G., the mother, and C.C., the father, each appeal a post-dependency order

granting permanent guardianship as to their child, C.N.C. We treat these

consolidated appeals as petitions for writ of certiorari, see M.M. v. Fla. Dep’t of

Children & Families

, 189 So. 3d 134 (Fla. 2016), 1 and deny both petitions.

BACKGROUND

C.N.C. was initially sheltered from his parents when he was two days old

because the mother tested positive for drugs when she gave birth to him.

Following compliance with their case plans, DCF supervision was terminated and

the parents were given custody of C.N.C. However, shortly thereafter, the mother

made arrangements with Guillermina Miranda, a woman the mother had met at the

Children’s Home Society. Pursuant to those arrangements, Ms. Miranda was to

take care of C.N.C. during the week because the mother did not have transportation

to take the child to and from daycare/school and because, as the mother described

it, she and the father argued a lot. Ms. Miranda and her husband, Diego

1 In M.M. v. Fla. Dep’t of Children & Families

, 189 So. 3d 134 (Fla. 2016), the

Florida Supreme Court observed that “[e]specially in cases involving child

dependency, it is crucial to adopt a standard of review that will be less likely to

disrupt the process for the children involved. The fluid nature of certiorari review

renders it more adapted to problems with post-judgment than appellate review.” Id.

at 137. The Court in M.M. held that “a post-dependency order that is subject to

future modification for purposes of child welfare and parental visitation is a nonfinal order reviewable by certiorari.” Id. at 141.

2Miranda

— who were not related in any way to C.N.C.

— have taken care of C.N.C.

during the week, including weeknights, since he was a baby, with no financial

support from either parent. This arrangement has continued for nearly nine years.

Under this arrangement with the Mirandas, the mother would take C.N.C. on the

weekends, and the father would sometimes visit the child at that time. 2

On September 24, 2014, when C.N.C. was seven years old, he was again

sheltered from his parents based on allegations of domestic violence and

abandonment. The parents consented to the dependency petition, and case plans

were provided for both. C.N.C. was placed in the custody of the Mirandas, and the

original goal was for reunification with his parents, with the completion of their

case plans. The case plan was later modified and on October 28, 2015, DCF filed

a third case plan, changing the goal from reunification to permanent guardianship

due to the parents’ failure to substantially comply with their case plans for more

than a year.

The trial court conducted an evidentiary hearing, and thereafter entered its

order granting permanent guardianship of C.N.C. to the Mirandas. The mother and

2 The mother and father no longer live together. The mother lives with her sister,

who already has custody of the mother’s older child, and the case manager testified

the sleeping arrangements there were not adequate for C.N.C. The case manager

also testified that the father lives in a home with undocumented immigrants and

that the father’s home fails to provide adequate sleeping arrangements as well.

3the father both appealed to this court, and the cases were consolidated for all

purposes on September 22, 2016.

ANALYSIS

Section 39.6221, Florida Statutes (2016), entitled “Permanent guardianship

of a dependent child,” provides, in pertinent part:

(1) If a court determines that reunification or adoption is not in the

best interest of the child, the court may place the child in a permanent

guardianship with a relative or other adult approved by the court if all

of the following conditions are met:

(a) The child has been in the placement for not less than the preceding

6 months.

(b) The permanent guardian is suitable and able to provide a safe and

permanent home for the child.

(c) The court determines that the child and the relative or other adult

are not likely to need supervision or services of the department to

ensure the stability of the permanent guardianship.

(d) The permanent guardian has made a commitment to provide for

the child until the child reaches the age of majority and to prepare the

child for adulthood and independence.

(e) The permanent guardian agrees to give notice of any change in his

or her residential address or the residence of the child by filing a

written document in the dependency file of the child with the clerk of

the court.

(2) In its written order establishing a permanent guardianship, the

court shall:

(a) List the circumstances or reasons why the child's parents are not fit

to care for the child and why reunification is not possible by referring

to specific findings of fact made in its order adjudicating the child

dependent or by making separate findings of fact;

(b) State the reasons why a permanent guardianship is being

established instead of adoption;

4(c) Specify the frequency and nature of visitation or contact between

the child and his or her parents;

(d) Specify the frequency and nature of visitation or contact between

the child and his or her grandparents, under s. 39.509 ;

(e) Specify the frequency and nature of visitation or contact between

the child and his or her siblings; and

(f) Require that the permanent guardian not return the child to the

physical care and custody of the person from whom the child was

removed without the approval of the court.

. . . (5) The court shall retain jurisdiction over the case and the child shall

remain in the custody of the permanent guardian unless the order

creating the permanent guardianship is modified by the court. The

court shall discontinue regular review hearings and relieve the

department of the responsibility for supervising the placement of the

child. Notwithstanding the retention of jurisdiction, the placement

shall be considered permanency for the child.

(6) Placement of a child in a permanent guardianship does not

terminate the parent-child relationship, including:

(a) The right of the child to inherit from his or her parents;

(b) The parents' right to consent to the child's adoption; and

(c) The parents' responsibility to provide financial, medical, and other

support for the child as ordered by the court.

Upon our review of the record, and particularly the transcript of the

proceedings below and the trial court’s thorough and detailed order, we conclude

that petitioners have failed to establish that the trial court departed from the

essential requirements of the law in granting a permanent guardianship for C.N.C.

As the Florida Supreme Court has made clear, “the departure from the essential

requirements of the law necessary for the issuance of a writ of certiorari is

5something more than a simple legal error. A district court should exercise its

discretion to grant certiorari review only when there has been a violation of a

clearly established principle of law resulting in a miscarriage of justice.” Allstate

Ins. Co. v. Kaklamanos

, 843 So. 2d 885, 889 (Fla. 2003). The court’s order

granting permanent guardianship clearly delineates and substantively addresses

each of the statutory prerequisites for granting a permanent guardianship under

these circumstances, a fact which the parents do not challenge. Rather, they

contest the court’s findings regarding whether they provided adequate living

arrangements for C.N.C., whether they have substantially complied with their case

plans, and whether permanent guardianship was, in fact, in C.N.C.’s best interest.

Even if meritorious, these points fail to establish that the trial court departed from

the essential requirements of the law. Moreover, there was competent substantial

evidence in the record to support the trial court’s order granting permanent

guardianship; there is therefore no basis to reverse the order. Accordingly, we

deny both petitions.

Petitions denied.

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