DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                            FOURTH DISTRICT

                            A.C., the Mother,
                               Petitioner,

                                    v.

 STATE OF FLORIDA, DEPARTMENT OF CHILDREN AND FAMILIES,
                       Respondent.

                             No. 4D19-1112

                           [November 6, 2019]

   Petition for writ of certiorari to the Circuit Court for the Fifteenth
Judicial Circuit, Palm Beach County; Carolyn Bell, Judge; L.T. Case No.
50-2016-DP-000392 JK.

  Antony P. Ryan, Regional Counsel, and Richard G. Bartmon, Assistant
Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel,
West Palm Beach, for petitioner.

   Andrew Feigenbaum of Children’s Legal Service, West Palm Beach, for
respondent.

   Thomasina F. Moore, Statewide Director of Appeals, and Laura J. Lee,
Senior Attorney, Tallahassee, for Florida Statewide Guardian Ad Litem
Program.

MAY, J.

   A mother petitions for a writ of certiorari to quash a case plan order
that requires her to submit to a parental fitness evaluation (“PFE”). She
argues the trial court departed from the essential requirements of the law
because the evidence does not establish the mother’s mental health was
in controversy. We disagree and deny the petition.

   Florida Rule of Juvenile Procedure 8.250(b) provides:

      At any time after the filing of a shelter, dependency, or
      termination of parental rights petition, or after an
      adjudication of dependency or a finding of dependency when
      adjudication is withheld, when the mental or physical
      condition . . . of a parent, . . .who has custody or is requesting
      custody of a child is in controversy, any party may request the
      court to order the person to submit to a physical or mental
      examination or a substance abuse evaluation or assessment
      by a qualified professional. The order may be made only on
      good cause shown and after notice to the person to be
      examined and to all parties and shall specify the time, place,
      manner, conditions, and scope of the examination and the
      person or persons by whom it is to be made. The person
      whose examination is sought may, after receiving notice of the
      request for an examination, request a hearing seeking to
      quash the request. The court may, on its own motion, order
      a parent, legal custodian, or other person who has custody or
      is requesting custody to undergo such evaluation, treatment,
      or counseling activities as authorized by law.

The rule implements section 39.407(15), Florida Statutes (2018), which
authorizes a mental examination upon a showing of good cause when the
parent’s mental condition is in controversy.

    After hearing testimony and reviewing the record, the circuit court
found the mother’s mental condition was in controversy. It based its
conclusion in part on the 2016 dependency adjudication order. That order
reflected the mother had been referred to services to help her resolve “some
issues regarding depression,” and the mother had asked the Department
to take custody of her children “because she could not provide for them
physically or mentally.”

   The circuit court also relied on evidence which showed that two years
later, after the mother was reunited with her children, she lost her housing
and advised she could not keep her children together with her in shelter
due to one child’s behavioral problems. This resulted in the children being
returned and placed in foster care.

   The circuit court noted the mother had enrolled the children in school
and located a therapist without assistance, but found that when
overwhelmed, she returned the children to licensed care. The court
reasoned that:

      Without a parental fitness evaluation, any new case plan
      would have essentially the same tasks as the first
      reunification case plan. The [m]other completed those tasks,
      but they were not enough. It would be highly detrimental to


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       the children for the [m]other to engage in the same behavior
       for the third time after another reunification.

These circumstances called for a PFE, which would provide
recommendations on how to help the family and avoid a potential
recurrence. The court specifically found good cause for the evaluation.
This decision is in accordance with the law.

  The circuit court did not depart from the essential requirements of law.1
We therefore deny the petition.

    Petition denied.

WARNER, J., concurs.
CIKLIN, J., dissents with opinion.

CIKLIN, J., dissenting.

   I respectfully disagree with the majority and would reverse the order
requiring the mother to submit to a parental fitness evaluation. In my
view, the record did not demonstrate that the mother’s mental health was
in controversy or that there was good cause for ordering the evaluation.

   The circuit court based its finding that the mother suffered from
depression and that her mental condition was at issue at least in part on
an earlier dependency order. In particular, the court cited the dependency
order’s reference to the mother’s statement that she had been referred to
services years earlier in Tampa “to help her resolve some issues regarding
depression . . . .” The court said that this alone should be sufficient to
meet the “in controversy” standard for a PFE. If that alone were sufficient,
the mother could forever be subject to PFE orders based on a reference to
possible mental health issues she may have had years earlier, without any
evidence about her mental health at this time. Further, “[m]ental illness,
alone, is insufficient to demonstrate the good cause required to order a



1 The mother also argued that the order failed to comport with the requirements
of Rule 8.250(b) and section 39.407(15), by failing to specify the time, place,
manner, conditions, and scope of the examination. But, the order required the
Department to provide the mother with a provider’s contact information within
two weeks, and ordered her to call the provider and schedule the evaluation
within a week of receiving that information. In short, the order complied with the
requirements of the rule and statute.


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psychological evaluation.” J.B. v. M.M., 

, 890 (Fla. 4th DCA
2012).

    The circuit court also considered the fact that the mother turned her
children over to the authorities after facing a housing issue, in a manner
similar to that previously done. She chose placement of the children in
licensed care in Florida while she remained in Georgia, but this was due
at least in part to behavioral problems she said one of the children was
having. The circuit court departed from the essential requirements of law
in concluding that the mother’s “inability to handle the children, physically
or mentally” placed her own mental health “in controversy.”

    The circuit court noted that the mother had enrolled the children in
school and located a therapist by herself without Department assistance.
However, her “fallback when overwhelmed” by loss of housing and a
difficult child was to seek placement of the children in licensed care. That
a mother faced difficulties leading her to seek licensed care of her children,
even after previous shelter care, may call for guidance and resources for
her future parenting. It does not necessarily place her mental health at
issue justifying an order for PFE.

                            *         *         *

   Not final until disposition of timely filed motion for rehearing.




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