A.W.P. v. Department of Children & Family Services
A.W.P. v. Department of Children & Family Services
Opinion of the Court
A.W.P., Sr. (the father), appeals a nonfi-nal Order Approving Educational Plans that prohibits him from having any visitation with his teenage son, A.W.P., Jr.,
The father seeks review of a nonfinal order entered after a dependency adjudication. This proceeding does not fall within the appeal of nonfinal orders authorized in Florida Rule of Appellate Procedure 9.130(a). In particular, the challenged order does not deal with custody in a family law matter under rule 9.130(a)(3)(C)(iii). See Dep’t of Health & Rehabilitative Servs. v. Honeycutt, 609 So.2d 596, 597 (Fla. 1992) (holding that dependency proceedings do not fall within rule 9.130(a)(3)(C)(iii)). The challenged order also does not fall within rule 9.130(a)(4), which provides that “[ojther non-final orders entered after final order on authorized motions are reviewable by the method prescribed by this rule.” See Dep’t of Children & Family Servs. v. Heart of Adoptions, Inc., 947 So.2d 1212, 1217 (Fla. 2d DCA 2007) (determining that an order on a motion to relinquish jurisdiction to another division of the circuit court in a dependency proceeding was not an order on an authorized motion and was reviewable by certiorari); see also E.H. v. Dep’t of Children & Family Servs., 979 So.2d 363, 364 (Fla. 2d DCA 2008) (granting a petition for writ of certiorari regarding an order entered after a dependency adjudication that allowed a parent only supervised visitation). Thus, by prior order, we have converted the appeal to a certiorari proceeding. See Fla. R. App. P. 9.030(b)(2)(A), 9.040(c).
Certiorari review of a nonfinal order is limited to errors that constitute a departure from the essential requirements of law, causing irreparable injury, for which there is no adequate remedy on direct appeal. Belair v. Drew, 770 So.2d 1164, 1166 (Fla. 2000); Aiello v. Aiello, 869 So.2d 22, 23 (Fla. 2d DCA 2004). In Aiel-lo, this court granted certiorari relief when the trial court entered an order without notice and an opportunity to be heard that temporarily modified a parent’s visitation rights. 869 So.2d at 24. This court stated that the parent’s due process rights were violated, constituting a miscarriage of justice, and that no adequate remedy on direct appeal existed for the temporary interference with visitation. Id.
Here, the father argues and the Department concedes that the father was denied due process when the trial court entered the Order Approving Educational Plans without notice and a real opportunity to be heard. In addition, the father and the Department agree that the trial court did not address the father’s right to counsel as section 39.013(9)(a), Florida Statutes (2008), requires. It is undisputed that Dougherty served her Motion for Order Approving Educational Plans on the father, who lives in New Orleans, the day before the trial court heard the motion, and she never noticed her motion for hearing. During a hearing on a different motion that the Department filed, the trial court also considered Dougherty’s motion. In her amicus curiae brief, Dougherty asserts that the father’s due process rights were not violated because the challenged order did not change his visitation rights but merely restated them. We cannot agree.
Because the father was denied due process, we grant certiorari relief and quash the Order Approving Educational Plans.
Petition granted and order quashed.
. We also observe that this is not the first time during the course of these proceedings that the father has not been afforded due process regarding his visitation rights. See A.W.P., Sr. v. Dep’t of Children & Family Servs., 823 So.2d 323 (Fla. 2d DCA 2002).
Reference
- Full Case Name
- In the Interest of A.W.P., JR., a child. A.W.P., Sr. v. Department of Children and Family Services
- Cited By
- 18 cases
- Status
- Published