DEPARTMENT OF CHILDREN AND FAMILIES HOLDS A HEARING WITHOUT THE FATHER BEING GIVEN NOTICE OR BEING PRESENT. FLORIDA APPELLATE COURT CALLS IT 'SHOCKING'.

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT July Term 2010 DEPARTMENT OF CHILDREN AND FAMILIES, Appellant, v. D.B.D., the father, Appellee. No. 4D09-4862 [August 25, 2010] GROSS, C.J. The Florida Department of Children and Families (“DCF”) appeals an order dismissing an ex parte injunction entered against a father of minor children pursuant to section 39.504, Florida Statutes (2009). At a hearing required by due process, DCF failed to justify the continuation of the injunction, so we affirm the order of the circuit court. The mother and the father are both attorneys. The mother is an attorney for DCF in Dade County. The mother and the father had an ongoing, contentious divorce case in Broward County. In the divorce case, the family court judge ruled against the mother on some of the allegations she made against the father. For example, in March, 2009, the judge denied the mother an injunction she had sought on behalf of her children. On August 21, 2009, the mother filed a pro se emergency motion to suspend visitation. Attached to the motion was an affidavit from a psychologist. The mother never called this motion up for hearing before the family court judge. On September 18, 2009, DCF filed a petition for a section 39.504 injunction in Broward County. Subsection 39.504(1), Florida Statutes (2009), authorizes the department to seek an injunction to “prevent any act of child abuse” at “any time after a protective investigation has been initiated pursuant to part III” of Chapter 39. The statute contemplates that the injunction remedy will be used in conjunction with a dependency proceeding in order to protect children from acts of abuse. - 2 - See id. The DCF petition contained many of the same allegations that the mother had included in her August 21 emergency motion to suspend visitation; also, the petition refers to the same psychologist’s affidavit that the mother had used to support her August 21 motion. On the same day the petition was filed, a hearing was held before Judge Carlos Rebollo, who was not the family court judge familiar with the hostile dynamics of this family. The father was given two hours telephone notice of the hearing. Because he was in the Florida Keys, he asked for permission to appear by telephone. DCF informed the court of the father’s request. DCF objected to the father’s appearance by telephone, so Judge Rebollo did not allow it. He instructed his bailiff to “sound the halls” for the father, and, when no one responded, the judge proceeded with the hearing. In addition to the mother, two lawyers and three DCF representatives were present. None of these professionals advised Judge Rebollo of the pending proceedings in family court and he did not ask. The short hearing consisted primarily of the judge reading an affidavit and a brief proffer of facts by a DCF attorney.1 One DCF representative was concerned that the father had sent him a letter threatening to sue him. The DCF attorney convinced the judge to enter an injunction that remained in effect until further order of the court, without holding any further hearing. Section 39.504(2) provides that if a judge issues “an immediate injunction,” “the court must hold a hearing on the next day of judicial business to dissolve the injunction or to continue or modify it.” The DCF attorney called the court’s attention to this section, but suggested that it did not apply. The attorney provided the judge with a preprinted form injunction for his signature. 1Section 39.504 does not specify what type of evidence may be introduced in an ex parte hearing to obtain an “immediate injunction.” However, other provisions of Florida law preclude the use of anything but affidavits or a verified pleading at ex parte temporary injunction hearings, unless there has been at least reasonable notice to the adverse party. For example, Florida Rule of Civil Procedure 1.610(a)(2) provides that “[n]o evidence other than the affidavit or verified pleading shall be used to support the application for a temporary injunction unless the adverse party appears at the hearing or has received reasonable notice of the hearing.” At an ex parte hearing to obtain a domestic violence temporary injunction, “no evidence other than verified pleadings or affidavits shall be used as evidence, unless the respondent appears at the hearing or has received reasonable notice of the hearing.” § 741.30(5)(b), Fla. Stat. (2009). The father in this case did not receive reasonable notice.- 3 - At the end of the September 18 hearing, Judge Rebollo entered an injunction that took effect immediately, so the mother could leave court with it in hand. The injunction did not schedule a hearing “the next day of judicial business.” Among other things, the injunction ordered the father to have no direct or indirect contact with his children and prevented him from going within 500 feet of the children’s current residence and school. Even though Judge Rebollo had never seen or heard from the father, the injunction also ordered the father to undergo two evaluations—for substance abuse and by a psychologist. To anyone familiar with the concept of due process, the abbreviated September 18 “hearing,” consuming but eight pages of transcript, is shocking. Three attorneys were present—Ali Vazquez on behalf of DCF, Lee Seidlin for the Guardian Ad Litem program, and the mother. None of the attorneys made Judge Rebollo aware of the ongoing proceedings in family court. None of the attorneys mentioned the mother’s August 21 emergency motion. None of the attorneys brought up the mother’s previous attempt to secure an injunction on behalf of the children, which was denied. DCF’s pre-printed, standard form for a petition for a section 39.504 injunction provides an area to describe “any other paternity action, child support enforcement action, or dependency case that is either going on now or that happened in the past.” There is no fill-in-theblank for an ongoing family court proceeding. The only reference in the petition to the divorce proceeding is a statement on page 5 that “[t]he mother and father are divorced.” Even though Judge Rebollo imposed drastic conditions in the injunction—barring a father from his children and requiring that he submit to drug and psychological evaluations—no one at the hearing was concerned that the father have any input into the propriety of the injunction. A primary focus of DCF’s attorney at the hearing was how to avoid further scrutiny of the injunction at a time when the person enjoined could have a meaningful opportunity to be heard.2 2We note that Florida Rule of Professional Conduct 4-3.3(c) provides: (c) Ex Parte Proceedings. In an ex parte proceeding a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse. Had the lawyers involved advised Judge Rebollo of the ongoing proceedings in the family court, he might well have consulted with the family court judge before signing the injunction.