39.521(3)(b) and 39.522(3) AND PERMANENT PLACEMENT WITH NON-OFFENDING PARENT-trial court erred by applying wrong statutory provision resulting in permanent placement of child with non-offending father without proper findings.

K.C. v. Department of Children and Families, 227 So.3d 783 (2017)

Mother appealed the trial court’s order awarding permanent custody of her child to the
non-offending Father by erroneously applying section 39.521(3)(b), Florida Statutes
(2015), rather than section 39.522(3), although Mother had been diligently working on
case plan with a goal of reunification.

Section 39.521(3)(b) addresses the appropriate placement for a child at disposition
and allows the court to place a child with a non-offending parent under certain
circumstances and with various conditions. Section 39.522(3) addresses postdisposition
changes of custody in cases where the issue before the court is whether a
child who is placed in the custody of one parent should be reunited with the other parent
and requires, inter alia, a finding that the safety, well-being, and physical, mental, and
emotional health of the child would not be endangered by reunification and that
reunification would be in the best interest of the child.

Here, the trial court ordered Mother to comply with a case plan instituted in 2016 with
the goal of reunification. Throughout the pendency of the case plan, the trial court held
review hearings and found that Mother was working diligently toward the completion of
the plan. Despite Mother’s progress, the trial court subsequently gave Father
permanent custody and closed the case, without making a finding that reunification with
Mother would either endanger the child or not be in the child’s best interest pursuant to
section 39.522(3) of the Florida Statutes. Accordingly, the Fifth DCA reversed and
remand the matter for an evidentiary hearing.

Practice Tip: Under either provision, 39.521(3)(b) or 39.522(3), the trial court must
make a finding regarding the best interest of the child.

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