Patty Long, by and through her Co-Guardians, Sarah Long and Dennis Long, and Matt Long, by and Through His Attorney-In-Fact Dennis Long v. Family Support Services of North Florida, Inc.

FIFTH DISTRICT COURT OF APPEAL

STATE OF FLORIDA

_____________________________

Case No. 5D2023-1217

LT Case No. 2020-CA-002431

_____________________________

PATTY LONG, by and through her

CO-GUARDIANS, SARAH LONG

and DENNIS LONG, and MATT

LONG, by and through his

ATTORNEY-IN-FACT DENNIS

LONG,

Appellants,

v.

FAMILY SUPPORT SERVICES of

NORTH FLORIDA, INC.,

Appellee.

_____________________________

On appeal from the Circuit Court for Duval County.

Katie L. Dearing, Judge.

Bryan S. Gowdy and Nicholas P. McNamara, of Creed & Gowdy,

P.A., Jacksonville, and Karen Gievers, Tallahassee, and Howard

M. Talenfeld and Lisa M. Elliott, of Justice for Kids, Kelley

Kronenberg, P.A., Fort Lauderdale, for Appellants.

Megan G. Colter and Dorothy Venable DiFiore, of Quintairos,

Prieto, Wood & Boyer, P.A, Tampa, for Appellee.

June 28, 2024

EDWARDS, C.J.

Appellants, Patty Long and Matt Long, 1 are biological sister

and brother who were in Florida’s foster care system for some time;

they are now adults. 2 While children, Brother repeatedly sexually

molested and physically abused Sister, and the two engaged in

child-on-child sexual activities/abuse with each other. Despite

knowing those disturbing facts, the agencies responsible for foster

child placement repeatedly placed Brother and Sister together in

foster home settings where the molestation, abuse, and

inappropriate sexual behaviors continued.

Appellants sued those agencies, Appellee, Family Support

Services of North Florida, Inc. (“FSS”) and its subcontracting

agency, Daniel Memorial, Inc., (“the Daniel agency”) alleging they

were negligent in their placements. At trial, Appellants asserted

that the agencies violated Florida Administrative Code Rule 65C-

28.004 (2006) and Florida Administrative Code Rule 65C-28.004

(2016) by making these inappropriate placements, which

negligence resulted in great emotional and psychological harm to

both Appellants. 3 The regulation was jointly admitted into

evidence during the jury trial. Following a defense verdict and

denial of their new trial motion, Appellants timely appealed.

Appellants argue that the trial court reversibly erred by refusing

to give their requested standard jury instruction that violation of

a regulation is evidence of negligence. We agree that refusal to

1 This opinion uses the same pseudonyms for the brother and

sister that were used in the briefs. For clarity and brevity, they

are sometimes referred to as Brother and Sister and elsewhere as

Appellants in the opinion.

2 Although both were adults when suit was filed, Sister sued

by and through her Co-Guardians, her adoptive parents, while

Brother sued by and through his Attorney-in-Fact, their adoptive

father.

3 It was unclear why the siblings’ cases were tried together,

other than perhaps for efficiency.

2

provide the requested instruction was an abuse of discretion and

reverse for a new trial on all issues. 4

Background Facts: Sexual and Physical Abuse

Appellants were deemed dependent and placed in the care of

Florida’s Department of Children and Families (“DCF”). Foster

care and related services for dependent children are provided by

DCF through private community-based “lead agencies” who have

entered into contracts with DCF. Appellee, FSS, “entered into a

written contract with [DCF] as the lead community-based care

agency responsible for coordinating, integrating, and managing a

local system of support and services for abused, abandoned and

neglected children and their families in Duval and Nassau

Counties,” where Brother and Sister were placed. FSS in turn

entered into a sub-contract with the Daniel agency whereby Daniel

would perform certain tasks related to foster care and child

placement.

After staying at a Salvation Army shelter and then with

relatives, Sister and Brother were placed in what the parties refer

to as the youth ranch. During their placement at the youth ranch,

FSS and the Daniel agency received reports that Brother had

repeatedly attempted to, and actually had, sexually molested and

physically abused Sister; that the two engaged in sexual activities

with each other; that Brother had repeatedly sexually molested his

younger male cousin; and that Brother had attempted to have sex

with his mother. A “safety plan” was created that prohibited

Brother and Sister from sharing a room and forbade them from

being left alone together. Brother received therapy while at the

youth ranch. Safety plans, such as just mentioned, were created

by appropriate staff at the Daniel agency. Members of FSS’s

placement unit would review and track each safety plan “to ensure

the safety and appropriateness of the placement in the home, to

4 Appellants assert that the trial court departed from its

neutral role and became an advocate for FSS, an issue we address

but find does not merit reversal. Appellants also argue about the

exclusion of a handwritten note written by Brother, an issue we

need not reach, given that the case will be retried.

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make sure we weren’t putting any child in a situation that might

lead to them being part of a sexual abuse incident.”

Evidence presented at trial revealed that when Sister’s

condition deteriorated after reporting the sexual conduct and

physical abuse, a licensed mental health counselor recommended

that Sister be placed into a higher level of care in a “therapeutic”

foster home. 5 The Daniel agency removed Sister from the youth

ranch and in 2015 placed her in a regular, not a therapeutic, foster

home where there was but a single parent, who worked. The same

mental health counselor testified at trial that she reported that

Brother was making some progress and recommended against

removing him from the youth ranch placement, lest his condition

deteriorate and he take out his frustrations and anger on Sister.

During the Christmas season of 2015, Brother had a

temporary stay at the single parent foster home with Sister. In

connection with that holiday stay, neither FSS nor the Daniel

agency advised that foster parent of the safety plan that had been

in place at the youth ranch, nor did they advise her of the sexual

misconduct or physical abuse issues. In furtherance of a

preference for keeping biological siblings together, in January

2016 the Daniel agency placed Brother in the same single parent,

regular foster home where Sister was residing. 6 Neither FSS nor

the Daniel agency asked the mental health counselor her opinion

about the proposed placements of Sister and Brother, although

FSS’s former placement manager testified that such

recommendations were always taken into consideration. Either

the night before or the day he was dropped off at this foster home,

the Daniel agency finally provided that single foster parent with

Brother’s “abuse history,” disclosing facts about him being sexually

aggressive, that he had molested Sister in the past, and so forth.

5 Sister was Baker-acted several times as a result of

displaying severe behavioral and emotional disturbances,

including attempting suicide.

6 See, e.g., § 39.4024, Fla. Stat. (2021), which discusses the

desirability of keeping siblings together when making out-of-home

placements when it is in the children’s best interest.

4

That foster parent was understandably upset by getting that kind

of information with no advance notice.

While with the single, working foster parent, the children

were enrolled in FSS’s mentoring program. Sarah Long mentored

Sister, while Dennis Long mentored Brother. 7 The Longs were a

married couple going through training and screening to become

foster parents. In May 2016, the children’s safety plan was

allegedly modified to permit the siblings to be left alone. This

single foster parent was never aware of any abuse occurring while

the children were with her. However, as a single, working foster

parent, she could not monitor their behavior when she was away

and there were no video cameras in her home. Sister testified at

trial that while at this foster home, Brother continued to physically

and sexually abuse her.

In September 2016, the Daniel agency removed Brother and

Sister from that single parent foster home and placed them with

Dennis and Sarah who had by then just become licensed foster

parents. The Longs ultimately adopted the siblings. According to

Sister’s trial testimony the abuse by Brother continued in this new

placement, even after they were adopted. Brother likewise

testified that the sexual and physical abuse of Sister continued in

Dennis and Sarah’s home. Approximately seven months following

their adoption, Sarah and Dennis Long discovered that Brother

and Sister had engaged in sexual activities with each other at their

home.

This suit, seeking money damages, was filed against both FSS

and the Daniel agency. Before the jury trial commenced, the

Daniel agency settled with Brother and Sister and was dismissed

from the case. An amended complaint was filed which simply

eliminated the Daniel agency as a defendant. The trial proceeded

only against the lead agency, FSS, and resulted in a defense

verdict. Appellants’ motion for a new trial was denied.

Agency Responsibility for Placement of Children

7 Once again, pseudonyms are being used.

5

Lead agencies, like FSS, are required by law to comply with

relevant statutory requirements and agency rules when they are

providing foster care and pre-adoption services for children

pursuant to a DCF contract. § 409.988(1)(j), Fla. Stat. (2014). The

subcontract between FSS and the Daniel agency listed as its first

major program goal that “[c]hildren will be protected from abuse

and neglect.” Under its contract with DCF, FSS was required to

“deliver Placement Services” to children. The subcontract with

Daniel did not eliminate FSS’s placement responsibility; rather, it

required Daniel to “work cooperatively with [FSS] and its

departments, including the Central Placement Unit”. FSS’s

subcontract with the Daniel agency provided that all placement

moves had to be authorized by FSS. The subcontract defined FSS’s

Central Placement Unit (“Kids Central”) as being “responsible for

securing placement of Dependent Children.”

The former placement manager for FSS described it as a

licensed child placing agency. Her responsibilities included

overseeing FSS’s placement specialists and the day-to-day

functions of placing children in foster care. When a placement was

made by the Daniel agency, FSS would be responsible for

reviewing the placement to ensure that it was appropriate and

complied with all the applicable rules and procedures. She further

testified that FSS’s placement unit served as “a centralized way to

ensure that children are safely placed in the most appropriate

home.” One of the child placement specialists testified that all

placement changes were required to go through FSS’s central

placement unit.

When a placement request was received by FSS, one of its

placement specialists would hold a team meeting to gather all

relevant information, following which the FSS placement

specialist “would begin looking for the best matched foster home or

group home.” A child placement specialist at FSS testified that it

was his responsibility to share information regarding the

children’s background, history, and needs with prospective

placements.

Rule 65C-28.004

6

To ensure proper care for children under its jurisdiction, DCF

is authorized to, and does, promulgate rules for provision of foster

care related services including specifically the placement of

children. One such rule, relevant to this case, is Rule 65C-28.004

(“Rule”), establishing “placement-matching requirements [that]

apply to both initial placements and to any subsequent placements

of [each] child.” Fla. Admin. Code R. 65C-28.004(15) (2006). Two

versions of this Rule are relevant. One version was adopted in May

2006, which covers the time frame when the siblings were initially

placed with the single foster parent. The second version was

adopted in May 2016, covering the time period when Brother and

Sister were placed in foster care with Sarah and Dennis Long. Both

versions were admitted into evidence as joint exhibits and were

available for the jury’s consideration.

Subsection 10 of the 2006 version of the Rule and subsection

9 of the 2016 version of the Rule provide guidelines for the

placement of a child who is a known or an identified victim of

sexual abuse, such as Sister.

Subsection 11 of the 2006 version of the Rule is titled

“Placement of Children Who Are Alleged Juvenile Sexual

Offenders, Exhibiting Sexually Inappropriate Behaviors or Who

Are Sexually Reactive.” It is undisputed that this subsection

applied directly to the placement of Brother and indirectly to Sister

in the single foster parent home. In addition to gathering

information about that child’s [Brother’s] abuse history, which is

to be provided to the foster parent, there is another requirement.

Rule 65C-28.004(11)(a)(2) provides that

the person making the placement shall:

(2) Ensure that the [sexually aggressive/abusive] child

is the youngest child placed in the home unless the

placement is a treatment facility with adequate video

monitoring. When matching a child exhibiting

sexually abusive or reactive behaviors to a substitute

care placement, consideration shall also be given to

factors that increase the vulnerability of other

children living in the home, such as mental and/or

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emotional disability, physical disability, chronic

illness and physical size.

Fla. Admin. Code R. 65C-28.004(11)(a)(2) (2006).

The 2016 version of the Rule, applicable to the siblings foster

care placement with Sarah and Dennis Long, still required

safeguards for all children in the home along with provision of

detailed information of the child’s past history of causing harm,

but the newer version changed the verbiage found in subsection 11

of the 2006 version of the rule, so that in 2016 it read in pertinent

part:

(10) Placement of Children With Behaviors That May

Result in Harm.

(a) When it is necessary to place a child who is

known to have any behaviors that may result in

harm, the person making the placement shall

implement safeguards to ensure that the needs of

the child for supervision, treatment and

intervention are addressed and that the safety of

other children in the same setting is ensured.

Fla. Admin. Code R. 65C-28.004(10)(a) (2016).

Appellants claimed that FSS violated both subsection 11 of

the 2006 version and subsection 10 of the 2016 version by

continuing to place the older, sexually and physically abusive

Brother in the same home as the younger, repeatedly victimized

Sister.

Refusal to Give Requested Jury Instruction

Appellants requested a standard Florida jury instruction that

is often given in civil cases. 8 The requested instruction is number

401.9 and is titled “VIOLATION OF STATUTE, ORDINANCE, OR

8 Appellants initially requested this instruction prior to trial,

then during trial they withdrew their request for a period of time,

only to re-request the instruction during the charge conference.

8

REGULATION AS EVIDENCE OF NEGLIGENCE.” Fla. Std.

Jury Instr. (Civ). 401.9. Brother and Sister’s written request for

that jury instruction said that “Plaintiffs claim that FSS violated

the following statutes, Florida Administrative Code Rules, and

DCF Operating Procedures.’’ They further requested in their

written request that the trial court read to the jury, inter alia, both

the 2006 and the 2016 versions of the Rule.

Florida Standard Jury Instruction 401.9 further

provides that:

Violation of these statutes or regulations is evidence of

negligence. It is not, however, conclusive evidence of

negligence. If you find that FSS violated these

statutes or regulations, you may consider that fact,

together with the other facts and circumstances, in

deciding whether it was negligent.

The trial court determined that the Rule only applied literally

to “the person making the placement” and said that any question

of who made the placement was not an evidentiary matter. As a

matter of law, the trial court determined that the Daniel agency

was “the person making the placement” and by implication that it

was not FSS. Thus, the trial court denied Appellant’s request for

Florida Standard Jury Instruction 409.1 with regard to the Rule.

Neither the Rule nor the relevant statutes define who “the

person making the placement” is. In its answer to the operative

amended complaint, FSS specifically stated that it had a duty to

both Brother and Sister to place each in homes that could meet

their needs. The evidence presented at trial demonstrated that

FSS, through its Placement Unit, was indeed involved in each

placement, had to approve each placement, and took responsibility

for ensuring that children would be placed safely and not in a

foster home with another child who could or was likely to harm

that child physically or sexually. FSS’s former placement manager

testified specifically that Brother and Sister’s placement with the

Longs was required to go through FSS’s central placement unit.

In closing argument, FSS’s counsel discussed whether it could

be liable because “we [FSS] put” Brother and Sister together first

9

in the single parent foster home and “because we [FSS] placed”

Brother and Sister together in Daniel and Sarah’s home. FSS

asked the jury to consider, “[d]id Family Support Services make a

mistake by doing these two placements on these two dates?”

Counsel further stated, “that there’s just no evidence whatsoever

that [FSS] should have done anything different in the way that

they worked with placing these children.” Finally, counsel argued

to the jury that “[t]here’s no indication we [FSS] breached a duty

in the manner in which [FSS] performed its placement function.”

If the two placements of Sister and Brother were made by FSS and

violated the Rule, that would indeed be evidence of negligence. It

was clearly a question for the jury.

The standard of review for the denial of a jury instruction is

abuse of discretion. Barbour v. Brinker Fla., Inc.¸ 801 So. 2d 953,

959 (Fla. 5th DCA 2001). The party appealing the trial court’s

refusal to give a requested jury instruction must demonstrate that

the instruction accurately stated the applicable law, the facts

supported giving the instruction, and the instruction was

necessary in order to allow the jury to properly resolve all the

issues in the case. Vitrano v. Fla. Power & Light Co., 190 So. 3d

89, 91 (Fla. 4th DCA 2015). The first two requirements are

discussed above and have been satisfied.

As to the third requirement, necessity of the instruction, we

consider the fact that the jury was instructed, at FSS’s request,

that it was not liable for the negligent acts or omissions of the

Daniel agency. Appellants agree this was an accurate instruction

based upon section 409.993(2)(a), Florida Statutes (2016).

However, without also instructing the jury to consider whether the

Rule had been violated by FSS in the two 2016 placements of

Brother and Sister, the jury did not have all the legal guidance it

needed. Thus, the requested but not given instruction was

necessary to ensure that the jury would have the proper legal

framework against which to analyze the evidence. Under the

circumstances here, failure to give the requested instruction was

an abuse of the trial court’s discretion.

However, before considering whether a final judgment will be

reversed and a new trial will take place, we must determine

whether the error or abuse of discretion was harmless. Special v.

10

W. Boca Med. Ctr., 160 So. 3d 1251 (Fla. 2014). “[T]he beneficiary

of the error [FSS here] must prove that there is no reasonable

possibility that the error complained of contributed to the verdict.”

Id. at 1253. When the party successfully blocking the instruction

capitalizes on the absence of the instruction during closing, it is

not a harmless error. See Araj v. Renfro, 260 So. 3d 1121, 1122–

23 (Fla. 5th DCA 2018). As in Araj, FSS highlighted the error by

pointing out during closing arguments that there would be no legal

instruction from the judge about the Rule, and stating that “there’s

no rule, statute, anything that says particular kids have to be

placed at particular places.” FSS has not carried its burden of

proving that the trial court’s refusal to instruct the jury regarding

the Rule did not possibly contribute to the defense verdict.

Accordingly, we find the trial court’s refusal to give the requested

instruction is harmful and requires that we reverse the final

judgment and remand for a new trial on all issues.

Trial Court’s Neutrality

Appellants argue that the trial court departed from its role as

a neutral arbiter and became an advocate for FSS. During trial,

FSS’s counsel objected from time to time as trial lawyers do. Some

objections were sustained, while others were overruled. However,

there were multiple occasions where FSS’s counsel objected, stated

the grounds for her objection; following which, the trial court sua

sponte would interject and supply additional or completely

different grounds for FSS’s objection, and then sustain the court’s

additional or different objection. For example, FSS argued that no

predicate had been laid for a question; following which, the court

noted “[a]nd it calls for a legal conclusion for which she’s not

qualified to answer that. So the objection is sustained.” FSS next

objected to a question on the ground of relevancy, to which the

court added, “[a]nd leading. Sustained.” FSS objected to another

question on the sole ground of “lack of predicate.” The trial court

then stated, “[s]ustained as to leading.” On another occasion, FSS

stated, “[o]bjection. Relevance;” the trial court then said,

“[s]ustained as to speculation.”

Appellants also point out other instances during which the

trial court seemed to depart from its expected neutral role. When

no objection had been made by FSS, the trial court ordered a

11

sidebar conference and asked Appellants’ counsel why she was

asking a fact witness questions that should be directed only to an

expert witness. When Appellants attempted to introduce a note

written by Brother which was discovered after his adoption, FSS

objected but the trial transcript reveals that it was the trial court

who argued with Appellants’ counsel for page after page of the

record as to how it could be relevant. 9 The trial court’s argument

with Appellants fills nearly a dozen pages of the transcript before

FSS finally begins to participate in the discussion.

The issue of whether the trial court violated a party’s due

process rights by exceeding the role of a neutral arbiter is reviewed

de novo. E.T. v. Dep’t of Child. & Fams., 261 3d 593 (Fla. 4th DCA

2019); A.M. v. Dep’t of Child. & Fams., 223 So. 3d 312, 315 (Fla.

4th DCA 2017). However, this issue was not properly preserved

for appellate review as to any specific instance discussed above

because Appellants failed to make contemporaneous objections

regarding the trial judge’s alleged misconduct. See Charles v.

State, 258 So. 3d 549 (Fla. 3d DCA 2018). 10 In their motion for new

trial, Appellants did argue that when the foregoing instances were

taken as a whole, they demonstrated that the trial court had

departed from its neutral role.

9 Brother’s handwritten note was a disturbing sexually

deviant checklist relating to with whom he would have sex or rape

or be raped by. During the lengthy argument with the court,

Appellants proffered that one of their expert’s testimony about the

note showed its relevance to Brother’s claimed permanent

emotional and psychological damages. As the case will be retried,

we do not reach the issue of whether Appellants laid a proper

predicate or whether they can do so in the future in a manner that

establishes the note’s relevance and admissibility.

10 We understand that it is uncomfortable and awkward to be

forced to object to the court’s conduct, but it serves the important,

necessary functions of contemporaneous objections: alerting the

judge “that error may have been committed” and providing “an

opportunity to correct it at an early stage of the proceedings.”

Castor v. State, 365 So. 2d 701, 703 (Fla. 1978).

12

A trial judge is prohibited “from stepping away from the

appearance of neutrality to become an advocate for either party.”

Dep’t. of Child. & Fams. v. J.J., 368 So. 3d 1017 (Fla. 5th DCA

2023) (quoting Evans v. State, 831 So. 2d 808, 811 (Fla. 4th DCA

2002)). “[I]t is permissible for a trial judge to ask questions deemed

necessary to clear up uncertainties as to issues in cases that

appear to require it.” J.F. v. State, 718 So. 2d 251, 252 (Fla. 4th

DCA 1998); see also Chastine v. Broome, 629 So. 2d 293, 295 (Fla.

4th DCA 1993) (“[T]he trial judge serves as the neutral arbiter in

the proceedings and must not enter the fray by giving ‘tips’ to

either side.”).

Counsel for Brother and Sister had their own way of trying

this case, of questioning witnesses, offering exhibits, and making

legal arguments; the same was true for FSS’s counsel. Other

lawyers may have gone about things differently. The trial court

was obviously concerned with having a clean trial with only

appropriate testimony being received by the jury and likewise,

keeping the trial moving towards a conclusion. We do not reverse

based on any finding that the trial court departed from the

required standard of neutrality. However, as the case will be

retried, we remind all concerned that it is the role of the attorneys

to state objections and the grounds for the objections, while the

trial court is to rule on the objections based on the grounds offered

by counsel with no supplementation by the court. 11

Conclusion

We reverse the final judgment entered in FSS’s favor, reverse

the order denying Appellants’ motion for new trial, and remand for

a new trial on all issues consistent with this opinion.

11 We find no fault with the trial court avoiding a potential

mistrial by sua sponte halting Appellants’ invitation made during

closing for the jury to “send a message” when punitive damages

had not been sought. We trust that Appellants’ counsel will avoid

making that clearly inappropriate argument during the retrial.

13

REVERSED and REMANDED.

BOATWRIGHT and MACIVER, JJ., concur.

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Not final until disposition of any timely and

authorized motion under Fla. R. App. P. 9.330 or

9.331.

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