5D05-2804 Morcroft v. DCF

SUPREME COURT CASES

Laws-info.com » Cases » Florida » Florida Fifth District Court » 2006 » 5D05-2804 Morcroft v. DCF

State: Florida

Court: Florida Fifth District Court

Docket No: 5D05-2804

Case Date: 05/08/2006

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2006

HEATHER MORCROFT, GUARDIAN AD LITEM, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee. ________________________________/ Opinion filed May 12, 2006 Appeal from the Circuit Court for Orange County, Stan Strickland, Judge.
Heather Morcroft, Legal Aid Society of the Orange County Bar Association, Guardian ad Litem, Orlando, pro se. Charles D. Peters, Orlando, for Appellee Department of Children and Families. Ryan Thomas Truskoski of Ryan Thomas Truskoski, P.A., Orlando, for Legal Custodian, A. J. Timothy A. Straus, of Moyer, Straus & Patel, P.A., Altamonte Springs, for Mother, R.S.

Case No. 5D05-2804

FALVEY, C. A., Associate Judge. Heather Morcroft, guardian ad litem of the minor children, M.J. and C.J., appeals two orders entered on July 11, 2005 in a dependency action. The first order continued

the adjudication of dependency against the custodian of the children, A.J.1 The second order denied Morcroft's motion to set aside the case plan, join the petition and amend the petition.2 The second order also dismissed the shelter and dependency petition Morcroft filed against the mother of the children, R.S. We affirm. The facts of the case are not in material dispute. Sometime in 2003, the mother, a Haitian citizen, sent her children to live with the custodian in the United States.3 The father of the children died in 1998. In January 2005, the Department of Children and Family Services (DCF) took the children into custody and filed a shelter petition after receiving a report that M.J. had bruises on her arm. The mother did not receive formal notice of the petition, which noted her location in Haiti but listed her address as unknown. The trial court found probable cause to shelter the children and placed them in a foster home. In early February 2005, DCF filed a Petition for Adjudication of After an arraignment hearing, DCF and the The predecessor

Dependency against the custodian.

custodian entered into a case plan with a goal of reunification.4

guardian ad litem, Robert Dietz, agreed to the case plan. In April 2005, the trial court accepted the case plan and entered an order adjudicating M.J. and C.J. dependent.
1

Although the parties refer to the custodian by differing initials, the custodian will be referred to as "A.J." throughout this opinion. For purposes of appeal, Morcroft's motion is treated as a Florida Rule of Juvenile Procedure 8.270(b) motion to set aside the order of adjudication of dependency. Official-looking documents, written in French and executed in Haiti, purport to give custody of the children to A.J.
3 2

2

In May of 2005, Morcroft replaced Dietz as the guardian ad litem for the children. Subsequently, in June 2005, she filed a motion to set aside the case plan, join the petition and amend the petition arguing that the mother was not joined as a party to the original petition and attacking A.J.'s status as a legal custodian. Additionally, Morcroft filed a petition for dependency and a shelter petition against the mother. On July 11, 2005, the trial court denied Morcroft's motion and her petition for dependency and shelter 5 during a hearing at which the mother's attorney appeared and requested that the children be returned to the custodian. This appeal ensued. In the first issue on appeal, Morcroft essentially argues that the trial court lacked jurisdiction to enter an order of adjudication of dependency because the mother was not properly notified and joined as a party to the proceedings. Her argument is based upon the provisions of section 39.01 (49)-(51), Florida Statutes (2005), and Florida Rule of Juvenile Procedure 8.210, which define "parent," "participant," and "party," and the provisions of sections 39.501 and 39.502, Florida Statutes (2005). She also argues the record lacks sufficient proof of the custodian's legal status. Morcroft's jurisdictional challenge is misplaced. While based upon the record Morcroft is correct that the mother's parental rights remain intact, 6 the trial court had

The plan indicated the mother was contacted regarding the proceedings and that A.J. was the "legal custodian" of the children. 5 On appeal, Morcroft argues that the petition for dependency she requested should have been granted pursuant to section 39.5075, Florida Statutes (2005) and rule 65C-9.003, Florida Administrative Code, because the minor child, C.J., is an illegal alien. During oral argument, DCF's counsel incorrectly asserted that the mother's parental rights were no longer intact given the custody arrangement. However, this assertion is not supported by either the record or existing law. Casbar v. DiCanio, 666 3
6

4

jurisdiction to proceed in this matter. The power of Florida's circuit courts to exercise jurisdiction over dependent children is codified by statute. Simms v. State, Dep't of Health & Rehabilitative Servs., 641 So.2d 957, 961 (Fla. 3rd DCA), review denied, 641 So.2d 957 (Fla. 1994). Pursuant to section 39.013 (2), Florida Statutes (2005), circuit courts have "exclusive original jurisdiction" of dependency actions brought under Chapter 39. This section further provides that the court may assume jurisdiction

"regardless of whether the child was in the physical custody of both parents, was in the sole legal or physical custody of only one parent, caregiver, or some other person, or was in the physical or legal custody of no person when the event or condition occurred that brought the child to the attention of the court."

Download 5D05-2804 Morcroft v. DCF.pdf