Petition for Writ of Certiorari — B. B., Petitioner v. Florida Department of Children and Families, et al.
Supreme Court briefAug 12, 2023
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Supreme CourTus'
filed
MG 12 2023
No. Sivisi^
££!ceoftheclerK
IN THE SUPREME COURT OF THE
UNITED STATES
In The Interest of T.B., A Child
Brittany Budlove., petitioner
v.
State of Florida, respondent.
On Petition for a Writ of Certiorari to the
Second District Court of Appeal
PETITION FOR A WRIT OF
CERTIORARI
Brittany Budlove
Pro Se
18443 Maple St.
Lansing, IL 60438
Tel: (708)677-5606
QUESTION PRESENTED
1. Whether Florida courts are refusing to consider that
their interpretation of Statute § 39.8155 is
unconstitutional as- applied when it contradicts the
Fourteenth Amendment Due Process Clause and is a
violation of the Supremacy Clause?
i
\
1
PARTIES TO THE PROCEEDING
The Petitioner is Brittany Budlove, Pro Se.
Respondent is the State of Florida.
Because this petition challenges the
constitutionality of a Florida Statute
affecting the public interest, the terms of
28 U.S.C. § 2403(b) may apply and this
petition therefore is being served on the
Attorney General of Florida as required by
Rule 29.4(c) of this Court.
ii
TABLE OF CONTENTS
Page
Table of Authorities
vm
Opinion below,
1
Jurisdiction
2
Constitutional and statutory provisions
4
Statement of the case
7
1. Statutory Background
8
2. Factual
Background
10
3. Court
of
Appeals Proceedings
Reasons for granting the petition...............
I. This Court should grant certiorari
because this case raises an
important issue of Federal
Constitutional Law if Florida
courts are violating the Due
Process Clause of the Fourteenth
Amendment which protects the
fundamental right of parents to
direct the care, upbringing, and
education of their children, as
iii
13
14
declared 18 U.S.C. § 241 as well in
direct conflict with the Supremacy
Clause
14
A.
The lower court's interpretation of
section 39.8155, Florida Statutes, to
require all conditions to be satisfied
would result in unreasonable and
absurd conclusions that are
inconsistent and cannot be harmonized
with
the
rest
of
chapter
39
16
1. Standard of Review
17
2. It is impossible for any petitioner to meet
all six criteria listed in section 39.815,
Florida Statute
17
3. Inferring a requirement that all six
criteria must be met would result in an
interpretation that is inconsistent with
the rest of Chapter 39 and expressed
legislative
intent
23
4. Florida Rule of Juvenile Procedure 8.540
which was created to conform with the
enactment of section 39.8155, Florida
Statutes, does not support the lower
court's statutory
interpretation
32
5. The lower court's interpretation violates
IV
the Supremacy Clause as it gives
preference to state laws over the federal
constitution
and
federal
law
35
Conclusion
45
v
INDEX TO APPENDICES
Appendix A-In re T.B., Order For Placement In
Shelter (Florida, Dec. 7,
A1
2019)
Appendix B- In re T.B., Motion for
Reinstatement of Parental Rights (Florida,
Nov. 29, 2022).................................................
A2
Appendix C- In re T.B., Order Dismissing
Motion to Reinstate Parental Rights (Florida,
Dec. 6, 2022)
A3
Appendix D- In re T.B., Motion for
Reconsideration (Florida, Dec., 11, 2022)
A4
Appendix E- In re T.B., Order Denying Motion
for Reconsideration (Florida, Florida, Dec., 15,
2022)
A5
Appendix F- In re T.B., Notice of Appeal
(Florida,
Dec.
23,
2022) ....
A6
Appendix G- In re T.B., 2D22-4176 (Florida,
Second District Court of Appeal, Apr. 12, 2023,
Affirmed)
A7
Appendix H- B.B. v. Dept, of Children and
Families et. al.,Motion for Certification and/or
Written Opinion and Rehearing,(Florida, May
6, 2023)
A8
vi
Appendix I- B.B. v. Dept, of Children and
Families et. al.,Order Denying Motion for
Certification, 2D22-4176 (Florida, May 15,
2023)...... .... .... ...................... ...... ...................... A9
Vll
TABLE OF AUTHORITIES
Cases
Bautista v. State, 863 So. 2d 1180, 1185 (Fla.
24
2003)........................................................................
Deen v. Wilson, 1 So. 3d 1179,1182 (Fla. 5th DCA
2009)
23
Dep't of Children & Families v. Manners, 328 So.
3d 1044,1047 (Fla. 5th DCA 2021)..................... 37
E.A.R. v. State, 4 So. 3d 614, 629 (Fla. 2009)
24
Fla. Dep't of State v. Martin, 916 So. 2d 763, 768
(Fla. 2005).................. .............................................
24
Guardian Ad Litem Program v. Dep't of Child. &
Fams., 207 So. 3d 1000,1005 (Fla. 5th DCA
2016)..................................... ..................................... 25
Haywood v. Drown, 556 U.S. 729 (2009)
22,36
Hobbie v. Unemployment Appeals Comm'n of
Florida, 480 U.S. 136.(1987)............................
3
Holly v. Auld, 450 So. 2d 217, 219 (Fla.
1984)...................................................................
vm
21
Howlett v. Rose, 496 U.S. 356 (1990)
22,36
In re Amends, to Fla. Rules ofjuv. Proc.-2021 FastTrack Rep., 345 So. 3d 729, 730 (Fla. 2022)
8,32,33,39
In re Smith. 77 Ohio App.3d 1, (1977)
45
J.B. v. Fla. Dep't of Child. & Fams., 170 So. 3d
780, 792 (Fla. 2015)............... ........................ ......
26
Jenkins v. State, 385 So. 2d 1356 (Fla. 1980)
3
Johnson v. Presbyterian Homes of Synod of Fla.,
Inc., 239 So. 2d 256 (Fla. 1970)..........................
21
Kirk v. State, 303 So. 3d 604, 606 (Fla. 5th DCA
2020)
21,22
Levy v. Levy, 326 So. 3d 678, 681 (Fla. 2021)
17
Meyer v. Nebraska, 262 U.S. 390, 399 (1923)
14
Parham v.J. R, 442 U.S. 584, 602 (1979)
15
Quilloin v. Walcott, 434 U.S. 246, 255 (1978)
15
Santosky v. Kramer, 455 U.S. 745, 774 (1982)....15
Stanley v. Illinois, 405 U.S. 645, 651 (1972)
ix
15
Testa v. Katt, 330 U.S. 386, 391-94 (1947}
36
Troxel v. Granville, 530 U.S. 57, 91 (2000}
15
Washington v. Glucksberg, 521 U.S. 702 (1997}..36
Wisconsin v. Yoder, 406 U.S. 205, 232 (1972}
15
Statutes
28 U.S.C. § 1257(a)
3,5
28 U.S.C. § 2403(b)
4,5
18 U.S.C. § 241
4,14,19
18 U.S.C. § 242
5,14,19
§ 39.001, Fla. Stat. (2022)
26
§ 39.001(l)(h), Fla. Stat. (2022)
25
§ 39.4021(1), Fla. Stat. (2022)
8,26
§ 39.4021(2)(a)(l), Fla. Stat. (2022)
§ 39.0136, Fla. Stat. (2022)
x
8,16,17,26
9
l
§ 39.621, Fla. Stat. (2022)
9
§ 39.621(3)(a), Fla. Stat. (2022)
9
§ 39.8155, Fla. Stat. (2022)
15,34,43,44
§ 39.8155(1), Fla. Stat. (2022)
18,20
§ 39.806(l)(e), Fla. Stat. (2022)
18,19,29
§ 39.8155(l)(f), Fla. Stat. (2022)
16,17,26,27
§ 39.8155(l)(a) -(f) Fla. Stat. (2022) 17,18,20,21,32
§ 39.8155(l)(b), Fla. Stat. (2022)
19
§ 39.806(l(a), Fla. Stat. (2022)
20
§ 39.001(l)(h), Fla. Stat. (2022)
16,45
§ 39.402l(l)-(2)(a)l., Fla. Stat. (2022)
16,17
§ 39.641(3)(a), Fla. Stat. (2022)
27
§ 39.0146, Fla. Stat. (2022)
28
§ 39.621, Fla. Stat. (2022)
17
xi
§ 39.621(3)(a), Fla. Stat. [2022)
17,28
§ 39.806(l)(b), Fla. Stat. (2022)
18
§ 39.806(l)(d)l., Fla. Stat. (2022)
18
§ 39.806(f), Fla. Stat. (2022)
13,18
§ 39.806(i), Fla. Stat (2022)
18
Xll
Other Authorities
Antonin Scalia & Bryan A. Garner, Reading Law:
The Interpretation of Legal Texts, 2357,14
39(2012)
Florida Rule of Juvenile Procedure
31,32,35
8.540
Florida Rule of Juvenile Procedure
7,32
8.540(a)
Florida Rule of Juvenile Procedure
33
8.540(b)(3)
Florida Rule of Juvenile Procedure
33,3
8.540(d)
9
Florida Rule of Juvenile Procedure
32
8.540(b)(2)
Constitutional Provisions
Amendment XIV, U.S. Const
4,10,13
Article VI, Cl. 2, U.S. Const
5,8,10,13,22,24
xiii
IN THE SUPREME COURT OF THE UNITED
STATES
No.
Brittany Budlove., petitioner,
v.
State of Florida, respondent.
ON PETITION FOR A WRIT OF CERTIORARI TO
THE SECOND DISTRICT COURT OF APPEAL OF
FLORIDA
PETITION FOR A WRIT OF CERTIORARI
Brittany Budlove respectfully petitions for a
writ of certiorari to review the judgment of the
Second District Court of Appeal of Florida.
OPINION BELOW
B.B. v. Dept of Children and Families et. al.,
Order Denying Motion for Certification, 2D224176, and is reprinted in the appendix. A9.
1
JURISDICTION
The Second District Court of Appeal
affirmed the trial court's order denying Motion to
Reinstate Parental Rights on April 12, 2023. The
decision was "Per Curiam. Affirmed." This
decision was final, as the Florida Supreme Court
has no jurisdiction to review such decisions. See
Jenkins v. State, 385 So. 2d 1356 (Fla. 1980];
Hobbie v. Unemployment Appeals Comm'n of
Florida,
480
U.S.
136,
139
n.4
(1987)
(acknowledging that "[ujnder Florida law, a per
curiam affirmance issued without opinion cannot
be appealed to the State Supreme Court" and
therefore petitioner "sought review directly in this
Court."). This Court has jurisdiction under 28
U.S.C.§ 1257(a), having timely filed this petition for
a writ of certiorari within ninety days of the Second
District Court of Appeal judgment.
2
Because
this
petition
challenges
the
constitutionality of a Florida statute affecting the
public interest, the terms of 28 U.S.C. § 2403(b)
may apply and this petition therefore is being
served on the Attorney General of Florida as
required by Rule 29.4(c) of this Court.
CONSTITUTIONAL AND STATUTORY
PROVISIONS
I.
The Fourteenth Amendment to the United
States Constitution provides:
All persons born or naturalized in the
United States, and subject to the
jurisdiction thereof, are citizens of the
United States and of the State wherein
they reside. No State shall make or
enforce any law which shall abridge
the privileges or immunities of
citizens of the United States; nor shall
any State.
II.
18 U.S. Code § 241
If two or more persons conspire to injure,
3
oppress, threaten, or intimidate any person
in any State, Territory, Commonwealth,
Possession, or District in the free exercise or
enjoyment of any right or privilege secured
to him by the Constitution or laws of the
United States, or because of his having so
exercised the same.
III.
28 U.S.C. § 2403(b) provides in relevant
part:
In any action, suit, or proceeding in a court
of the United States to which a State or any
agency, officer, or employee thereof is not a
party, wherein the constitutionality of any
statute of that State affecting the public
interest is drawn in question, the court shall
certify such fact to the attorney general of
the State, and shall permit the State to
intervene for presentation of evidence, if
evidence is otherwise admissible in the case,
and for argument on the question of
constitutionality. The State shall, subject to
the applicable provisions of law, have all the
rights of a party and be subject to all
liabilities of a party as to court costs to the
extent necessary for a proper presentation of
the facts and law relating to the question of
constitutionality.
IV.
28 U.S.C.§ 1257(a) provides in relevant part:
(a)Final judgments or decrees rendered by
the highest court of a State in which a decision
could be had, may be reviewed by
4
the Supreme Court by writ of certiorari
where the validity of a treaty or statute of
the United States is drawn in question or
where the validity of a statute of any State is
drawn in question on the ground of its being
repugnant to the Constitution, treaties, or
laws of the United States, or where any title,
right, privilege, or immunity is specially set
up or claimed under the Constitution or the
treaties or statutes of, or any commission
held or authority exercised under, the
United States.
V.
18 U.S.C. § 242 provides in relevant part:
Makes it a crime for a person acting under
color of any law to willfully deprive a person
of a right or privilege protected by the
Constitution or laws of the United States
VI.
Article VI, Clause 2, of the United States
Constitution provides:
This Constitution, and the Laws of
the United States which shall be
made in Pursuance thereof; and all
Treaties made, or which shall be
made, under the Authority of the
United States, shall be the supreme
Law of the Land; and the Judges in
every State shall be bound thereby,
any Thing in the Constitution or
Laws of any State to the Contrary
notwithstanding.
5
STATEMENT OF THE CASE
The Petitioner's parental rights to her minor
child were terminated at a hearing on
December 21, 2020, and a written final
judgment was entered by the lower court on
January 15, 2021. The final judgment was
amended on February 4, 2021. The Petitioner
appealed this decision in case 2D21-0357, which
was affirmed by the Second District Court of
Appeal. The Petitioner moved to reinstate her
parental rights on November 29, 2022,
pursuant to section 39.8155, Florida Statutes.
The lower court entered an order dismissing the
motion without hearing on December 5, 2022,
interpreting the statute as requiring every
element to be met prior to moving for relief. The
6
Petitioner timely filed for reconsideration,
alleging a misapplication of the statute, on
December 11, 2022. The lower court denied the
motion on December 15, 2022. The Petitioner
appealed this decision in case 2D22-4176, which
was affirmed by the Second District Court of
Appeal on April 12, 2023. The Petitioner timely
filed a motion for certification and written
opinion, alleging the misapplication of a per
curium affirmance on issues not well versed in
state law on May 6, 2023. The motion was
denied by the Second District Court of Appeal
on May 15, 2023.
1. Statutory
Background.
The
legislature
enacted section 39.8155, Florida Statutes, in
October 2021. The enactment of this statute
7
caused a new Rule of Juvenile Procedure to be
created to conform to it: Rule 8.540, Motion to
Reinstate Parental Rights. In re Amends, to
Fla. Rules ofjuv. Proc.- 2021 Fast-Track Rep.,
345 So. 3d 729, 730 (Fla. 2022]. There is
currently no case law interpreting this
statute. The lower court chose to interpret
this statute beyond the plain language and
determined that it requires a petitioner to
meet all the criteria. This interpretation is
repugnant to the purpose of the statute—to
reunite biological parents and their children
through reinstatement after termination—
and
would
result in
an
unreasonable
disposition. This interpretation is likewise
repugnant to the rest of Chapter 39, in which
the Florida legislature has made clear, inter
8
alia\
(1) The purpose of Chapter 39 is
permanency "as soon as possible." §
39.001(l)(h), Fla. Stat. (2022); §
39.4021(1), Fla. Stat. (2022).
(2) The nonoffending parent should be
considered first for placement. §
39.4021(2)(a)(1), Fla. Stat. (2022).
(3)
Time is of the essence for
establishing permanency and it should be
achieved within a year or as soon as
possible thereafter, with the court
checking in at least once every 12
months. § 39.0136, Fla. Stat. (2022); §
39.621, Fla. Stat. (2022).
(4)
Reunification with the biological
parent is the first preference of the
legislature. § 39.621(3) (a), Fla. Stat.
(2022).
Because the plain language of the statute
does not require all conditions to be met, and
because interpreting it in that manner would
result in an unreasonable conclusion that
cannot be read in harmony with the rest of
9
Chapter 39.
2. Factual
Background
and
Trial
Court
Proceedings. T.B. was born March 17, 2019.
The Department of Children and Families
(DCF) filed a shelter petition on December 7,
2019, regarding T.B., the biological child of
Petitioner. The lower court granted the State's
petition to shelter T.B. DCF filed an expedited
petition for termination of parental rights
against Petitioner as to T.B on December 23,
2019, due to allegations of abuse against a
foster child by a person other than
Petitioner.
A
hearing was
held
the
on the
Petitioner's, Motion to Change Placement to
two relatives, T.B.'s maternal grandmother and
paternal uncle, on July 1, 2020. The court
denied the motion. The Petitioner filed an
10
amended motion to change placement to
another relative, maternal first cousin, Simone
Wilson. The hearing on the motion took place
on September 21 and 22, 2020. It was also
denied. A termination of parental rights trial
was held. The Department of Children and
Families falsely characterized the foster child
in the complaint as Petitioner's biological child
and
terminated
her parental
rights
on
December 21, 2020, relying on not having to
prove nexus. There were no hearings for the
foster child to refute the allegations against the
Petitioner, instead they used T.B'.'s trial in an
attempt to prove the unfounded allegations.
The Petitioner was never charged, convicted,
or alleged to have committed any wrongdoing.
Her rights
11
were terminated to T.B. because she "should
have known" an act of violence would occur,
though the act has never been proven in a court
of law. The State was allowed to terminate
parental rights of a child that had never been
abused, abandoned, or neglected while offering
no resources for remediation or proving
unfitness. Petitioner's rights to T.B., who was
only nine months old when removed, were
terminated while being a non-offending parent.
Petitioner
appealed
the
termination
on
January 27, 2021. The termination of parental
rights order was amended February 4, 2021. It
was affirmed by the Second District Court of
Appeal on August 11, 2021. Mandate affirming
(21.249] was issued
August
Petitioner filed a motion to
12
28,
2021.
disqualify the judge December 31, 2021. The
lower court failed to make a ruling on it. An
emergency petition for a writ of habeas corpus
was filed in the Florida Supreme Court on
September 20,2022 (SC22-1219). The petition
was sent to the Second District Court of Appeal
and was denied on September 21, 2022.
Petitioner filed a motion to Reinstate Parental
Rights on November 29, 2022. The lower court
denied the motion December 6,2022. A motion
for reconsideration was file December 11,
2022. The motion for reconsideration was
denied December 15, 2022.
3. Court of Appeals Proceedings. A timely
appeal was filed on February 16, 2023. The
Second District Court of Appeal affirmed on
13
April 12, 2023. The decision was made in less
than two weeks after the reply brief was filed
providing no written opinion to explain the
information to support the decision of a new
statute. A motion for certification and written
opinion was submitted on May 6, 2023. The
Second District Court of Appeal denied the
motion for certification on May 15, 2023.
14
REASONS FOR GRANTING THE PETITION
I.
This Court should grant certiorari
because this case raises an important
issue of Federal Constitutional Law
determining whether Florida courts
are violating the Due Process Clause of
the Fourteenth Amendment which
protects the fundamental right of
parents to direct the care, upbringing,
and education of their children, as
declared in 18 U.S.C. § 241, 18 U.S.C. §
242, as well in direct conflict with the
Supremacy Clause
This case presents an important
question of Federal constitutional law
concerning the State's handling of parentalrights termination cases. Nearly a century
ago, this Court held that the Due Process
Clause protects the right of parents to
"establish a home and bring up children."
Meyer v. Nebraska, 262 U.S. 390, 399 (1923].
Since then, this Court consistently has
recognized the primacy of the parent-child
15
relationship—and cast a skeptical eye on
government attempts to burden it. See, e.g.,
Stanley v. Illinois, 405 U.S. 645, 651 (1972);
Wisconsin v. Yoder, 406 U.S. 205, 232 (1972];
Quilloin v. Walcott, 434 U.S. 246, 255 (1978];
Parham v.J. R., 442 U.S. 584, 602 (1979].
Even in cases yielding divided opinions, this
Court's justices find common ground in their
agreement that "the interest of parents in
their relationship with their children is
sufficiently fundamental to come within the
finite class of liberty interests protected by
the Fourteenth Amendment." Santosky v.
Kramer, 455 U.S. 745, 774 (1982]
(Rehnquist, ]., dissenting]. And justices who
do not view parental rights as
constitutionally protected nevertheless
16
concede their place among the "unalienable
Rights" the Declaration of Independence
posits are bestowed on all Americans by
"their Creator." See Troxel v. Granville, 530
U.S. 57, 91 [2000] [Scalia, ]., dissenting).
The question this case presents is
whether the State's cumulative denial of
multiple procedural safeguards in parentalrights termination and reinstatement action
elevates the risk of erroneous deprivation too
high for the Due Process Clause to bear. This
raises the subsidiary issue of what role
preservation-of-error
rules
may
play—
consistent with the Due Process Clause—in
denying appellate review both sufficiency of
the
evidence
judgment
and
underlying a termination
the
17
constitutionality
of
procedures leading up to it regarding the
reinstatement of parental rights.
A. The Lower Court's Interpretation of Section
39.8155, Florida Statutes, to require all
conditions to be satisfied would result in
unreasonable and absurd conclusions that
are inconsistent and cannot be harmonized
with the rest of Chapter 39.
1. Standard of Review
This
issue
involves
statutory
interpretation that raises concern of great
national importance. The law should be given
its plain meaning wherever possible. Statutes
must be interpreted so as to be entirely
harmonious with all laws as a whole. An issue
that involves statutory interpretation is subject
to de novo review. Levy v. Levy, 326 So. 3d 678,
681 (Fla. 2021).
18
2.
It i s impossible for any
petitioner to meet all six
criteria listed in section
39.8155, Florida Statutes
The Petitioner should be eligible to
have her parental rights reinstated, but
under the lower court's interpretation, it
would be impossible for any petitioner to meet
the
criteria
for
reinstatement.
Section
39.8155(1) (a)-(f), Florida Statutes, states:
(1) After parental rights have been
terminated in accordance with this
part, the department, the parent
whose rights were terminated, or the
child may file a motion to reinstate the
parent's parental rights. The court
may consider a motion to reinstate
parental rights if:
(a) The grounds for termination of
parental rights were based on s.
39.806(1)(a) or (e)l.-3.
(b) The parent is not the verified
19
perpetrator of sexual or physical abuse
of the child.
(c) The parent has not been a
perpetrator involved in any verified
reports of abuse, neglect, or
abandonment since his or her parental
rights for the child were terminated.
(d) The parent has not had his or her
parental rights terminated for any
other child, under any grounds, in this
state or any other jurisdiction, since
his or her parental rights for the child
were terminated.
(e) The child is at least 13 years of age.
(f) The child has not achieved
permanency and is not in a
preadoptive placement, and at least 36
months have passed since the
termination of parental rights.
§ 39.8155(1), Fla. Stat. [2022].
All of the criteria listed above cannot
be met by a single petitioner. For example,
criteria (a) allow for reinstatement if a
parent's rights were terminated under
section 39.806(1)(e) 1.-3. That statute
20
concerns continual abuse of a child by the
parent. § 39.806(l)(e), Fla. Stat. (2022].
This is in conflict with the very next line
item of section 39.8155(1), criteria (b),
which states the parent cannot be the
verified perpetrator of the child abuse. If
read in the way the lower court suggested,
by assuming all criteria should be met in
order to petition for reinstatement, then the
non-offending parent is barred from ever
having their rights reinstated. In this case,
neither the child nor the Petitioner were
involved in any abuse; instead, the alleged
abuse concerned the father and a relative's
child who was a foster child placed in the
home, which the lower court determined fell
under the "sibling" criteria found in section
21
39.806(1) (f). That inaccuracy alone violates
18 U.S.C.§ 241 and 18 U.S.C.§ 242, as
Chapter 39 only applies to adults who have
legal rights to children or minors. Since the
minor relative child was a foster youth, the
State had legal custody and the child could
not be considered a legal sibling to anyone
in the placement. T.B. was therefore
removed under false pretenses leading to
the unlawful removal. In reading the statute
the way the lower court interpreted it, the
father, but not the Petitioner, could one day
petition for his rights to be reinstated. This
is an absurd result.
Likewise, criteria (a) and criteria (d) of
section 39.8155(1) cannot co-exist without
severely limiting reunification. Section
22
39.806(1](a), referred to in section
39.8155(1][a], is a ground for termination
when a parent voluntarily surrenders a
child. § 39.806(l](a], Fla. Stat. (2022]. In
that instance, it would be reasonable to
believe the legislature intended that a
parent who is later in a better position to
care for their child could hope to be
reunited. However, if that parent
voluntarily surrendered one or more
children and it did not happen
contemporaneously, then under the lower
court's interpretation of the statute, that
parent would be barred from ever hoping to
reinstate their rights because criteria (d] of
section 39.8155(1] could not be met.
It is apodictic that "a literal
23
interpretation of the language of a statute
need not be given when to do so would lead
to an unreasonable or ridiculous
conclusion."Holly v. Auld, 450 So. 2d 217,
219 (Fla. 1984) (citing Johnson v.
Presbyterian Homes of Synod of Fla., Inc.,
239 So. 2d 256 (Fla. 1970)). This is known
as the "absurdity doctrine." Kirk v. State,
303 So. 3d 604, 606 (Fla. 5th DCA 2020).
This doctrine provides that a "provision
may be either disregarded or judicially
corrected as an error (when the correction is
textually simple) if failing to do so would
result in a disposition that no reasonable
person could approve." Antonin Scalia &
Bryan A. Garner, Reading Law: The
Interpretation of Legal Texts, 235-39 (2012).
24
As the Fifth District Court of Appeal
pointed out in Kirk, this doctrine should be
exceptional and is not intended to allow
courts to substitute their own judgment for
that of the legislature. 303 So. 3d at 606.
Here, if the lower court believed the
legislature meant for all the criteria to be
required, certainly at that point it could
have, and should have, explained why it
went beyond the language contained in the
statute. But it did not. This was an error. It
is clear the legislature did not intend for all
conditions to be met—it would be
impossible for that to happen. As in Kirk, if
this Court believes the statute is
ambiguous, it should commend the issue to
25
the state legislature with the suggestion
that it consider amending the statute. Id.
However, because it can only be read in one
reasonable way.
3. Inferring a requirement that ail six
criteria must be met would result in an
interpretation that is inconsistent with the
rest of Chapter 39 and expressed
legislative intent.
The second rule of statutory
construction, in addition to the absurdity
doctrine discussed supra, is the doctrine of in
pari materia, which provides that courts
should view statutes in a manner that would
harmonize the applicable law.
Deen v. Wilson, 1 So. 3d 1179,1182 (Fla. 5th
DCA 2009]. The Florida Supreme Court
26
explained the doctrine as follows:
If a part of a statute appears to have a clear
meaning if considered alone but when given
that meaning is inconsistent with other
parts of the same statute or others in pah
materia, the Court will examine the entire
act and those in pari materia in order to
ascertain the overall legislative intent.
E.A.R. v. State, 4 So. 3d 614, 629 (Fla.
2009). The Florida Supreme Court has also
explained, "The doctrine of in pari materia is
a principle of statutory construction that
requires that statutes relating to the same
subject or object be construed together to
harmonize the statutes and to give effect to
the Legislature's intent." Fla. Dep't of State
v. Martin, 916 So. 2d 763, 768 (Fla. 2005).
An in pari materia inquiry requires a court
27
to address the legislation "as a whole,
including the evil to be corrected, the
language, title, and history of its enactment,
and the state of law already in existence."
Bautista v. State, 863 So. 2d 1180, 1185 (Fla.
2003).
Here, Chapter 39 is replete with
legislative intent and statutory schemes that
focus on (1) a primary goal of reunification
with biological parents, and (2) permanency
for children as quickly as possible. The
statutory scheme is clear, and section
39.8155 must be interpreted in harmony
with the rest of the chapter.
There are numerous examples in
Chapter 39 that indicate the lower court's
28
interpretation requiring all criteria to be met
cannot be correct. First, section 39.001(1) (h)
states the "purposes of chapter" are "[t]o
ensure that permanent placement with the
biological or adoptive family is achieved as
soon as possible for every child in foster care
and that no child remains in foster care
longer than 1 year." § 39.00l(l)(h), Fla. Stat.
[2022]; see also Guardian Ad Litem Program
v. Dep't of Child. & Fams., 207 So. 3d 1000,
1005 (Fla. 5th DCA 2016) (noting that the
statutory goal of achieving permanency as
soon as possible was one reason for
terminating the parent's rights in that case).
Indeed, a very important consideration must
be given to the child's interest in reaching
permanency, and there is a harm that
29
results when it is unduly delayed. J.B. v.
Fla. Dep't of Child. & Fams., 170 So. 3d 780,
792 [Fla. 2015).
Since this is true, a mandatory
waiting period of 36 months, as outlined in
section 39.8155(f), would seem to contradict
the legislative intent of achieving
permanency as soon as possible. It would be
more reasonable, and would align with
legislative intent, to view that criteria as one
of the options to move for reunification. In
other words, although that could be one of
the criteria, it should not be interpreted as a
requirement. Consider also section
39.4021(1)- (2)(a)l., which explicitly states
that the legislative intent for placement
requires that the child be placed in the most
30
family-like setting, that permanency must be
achieved in a timely manner, and that the
non-offending parent should be considered
first. § 39.402 l(l)-(2) (a) 1., Fla. Stat. (2022).
This leads to another issue: if the
Department has complied with Chapter 39
and made efforts to secure preadoptive
placement within the year—which can even
happen directly after a termination
hearing—and a parent is able to move for
reinstatement except for the fact that the
child's placement is labeled as such, the
parent would be precluded from reuniting
with their child under section 39.8155(f) if
the lower court's interpretation of requiring
all criteria was correct. This also contradicts
section 39.641 (3)(a), which states the
31
legislature's preference for permanency is
first reunification, then adoption. §
39.641 [3] (a), Fla. Stat. (2022). If following
the lower court's interpretation, the
preference would be reversed, causing a
preadoptive permanency option to supersede
a reunification permanency option—an
outcome at odds with the legislature's stated
intent.
If the lower court's interpretation is
correct that all the criteria must be met,
including a 36-month wait period and that
the child must be 13 years old, then the
statute would also contradict sections
39.0146 and 39.621. These statutes state
that time is of the essence for establishing
32
permanency, require permanency to be
achieved within a year "or as soon as
possible thereafter," and require the court to
check in every 12 months to ensure this goal
is being pursued. § 39.0146, Fla. Stat.
(2022); § 39.621, Fla. Stat. (2022). Perhaps
most importantly, section 39.621(3) (a)
states, "The permanency goals available
under this chapter, listed in order of
preference, are: (a) Reunification...." §
39.621(3)(a), Fla. Stat. (2022). This tenet of
Chapter 39 cannot co-exist with the lower
court's interpretation that a strict "all
criteria" reading should control.
Of course, the idea that a child must
wait to either turn 13 or to be in care for a
minimum of three years in order to be
33
reunited with a parent—especially a non
offending parent or one who surrenders their
child for whatever reason voluntarily—is
contrary to the legislative goals in Chapter
39. The idea that a child could be removed at
infancy, yet the parent would have to wait
until the child is 13 to have their rights
reinstated is illogical. Likewise, it is absurd
to interpret the statute in a way that the
only parents who could move for
reunification either [1] gave up their child
voluntarily under section 39.806(1)(a), or (2)
continued to abuse, neglect, or abandon a
child and did not comply with a case plan
under section 39.806(1) (e) 1.-3.. Limiting the
reading of the statute to require that all
criteria must be met, as the lower court did
34
here, necessarily means that the only
parents who can hope for reunification are
those whose rights were terminated under
those two grounds. This would mean that
the following parents would be barred from
moving for reunification, and their children
could never move for the court to reinstate
their parent-child relationship:
(1) A parent whose identity or location
could not be found within 60 days. §
39.806(l)(b), Fla. Stat. (2022).
(2) A parent who is expected to be
incarcerated for a significant portion
of the childhood. § 39.806(1) (d)l., Fla.
Stat. (2022).
(3) A parent who failed to prevent
another person's egregious conduct
toward a sibling. § 39.806(f), Fla. Stat.
(2022).
(4) A parent's rights to a sibling of the
child were involuntarily terminated. §
39.806(i), Fla. Stat. (2022).
Surely the legislature did not intend
35
for someone who the Department of Children
and Families was unable to find in two
months should lose all hope for rights to ever
be reinstated, or an incarcerated person who
expected to be gone for a significant period of
time but ends up not serving that sentence
to be unable to reunify with their child. It's
hard to comprehend that legislature would
intend for a mother who had a child removed
from her at birth simply because she had
child previously involuntarily taken
regardless of the time passed to never regain
custody of her child. Likewise, the
legislature could not have intended to
exclude a mother who, like this Petitioner,
was not present nor has knowledge of any
alleged egregious behavior toward another
36
child, but nonetheless expeditiously lost her
parental rights to her nursing baby with no
option for a case plan or reunification. Such a
result is incompatible with the legislative
intent of the statute.
4. Florida Rule of Juvenile Procedure 8.540
which was created to conform with the
enactment of section 39.8155 Florida
Statutes, does not support the lower court's
statutory interpretation.
When the legislature enacted section
39.8155, Florida Statutes, the Florida
Supreme Court adopted the new Florida
Rule of Juvenile Procedure 8.540, Motion to
Reinstate Parental Rights, to conform to the
statute. In re Amends, to Fla. Rules ofjuv.
Proc.-2021 Fast-Track Rep., 345 So. 3d 729,
37
730 (Fla. 2022]. This procedural rule begins
in subsection (a] with the language that
proceedings can be initiated "[f]ollowing a
termination of parental rights," with no
mention as to a 36-month mandatory wait
time or a minimum age of 13 years old for
the minor child. Fla. R. Juv. P. 8.540(a). The
rule states in subsection (b)(2) that the
movant has the burden of presenting
relevant evidence. Fla. R. Juv. P. 8.540(b)(2).
As far as the lower court's role, it states it
must consider all relevant evidence,
"including the criteria provided in Chapter
39, Florida Statutes." Fla. R. Juv. P.
8.540(b)(3). It does not specify that all
criteria in section 39.8155 must be met, but
instead requires the trial court to consider
38
all relevant evidence as to the whole of
Chapter 39. Fla. R. Juv. P. 8.540(b)(3).
As Rule 8.540 was created specifically
in response to section 39.8155, the Florida
Supreme Court could have required the
lower courts to limit inquiry to just the
criteria in that statute for purposes of the
evidentiary hearing, and it could have
further required the lower courts to find all
the criteria in that statute to be met, but it
did not. In re Amends., 345 So. 3d at 730. It
could not, because doing so would run afoul
of legislative intent and would frustrate the
very purpose of reinstatement of parental
rights. The only criteria definitively listed is
in Rule 8.540(d), the final evidentiary
hearing, wherein it requires the court to find
39
that it is in the best interest of the child for
reinstatement, after visitations and trial
home visits with the natural parent for at
least three months have occurred. Fla. R.
Juv. P. 8.540(d]. Thus, the lower court’s
interpretation cannot be read in harmony
with Rule 8.540, which was created to
provide the Court with the procedural
mechanism for motions filed under section
39.8155.
The lower court's interpretation of
section 39.8155, Florida Statutes, falls under
both the absurdity doctrine and the doctrine
of in pari materia, and cannot be read in
harmony with Chapter 39 or the express
legislative purpose therein. Once parental
rights are terminated, the biological parent
40
has no standing to obtain any information
about their child. Therefore, it is unrealistic
for the lower court to assume the parent
would have access to information not
privileged to them. The lower court's
interpretation also creates a new set of
requirements that have nothing to do with
the reason parental rights were terminated.
This Court should allow the matter to
proceed on its merits consistent with
legislative intent and the procedural
requirements of Florida Rule of Juvenile
Procedure 8.540.
5. The lower court's interpretation violates
the Supremacy Clause as it gives
preference to state laws over the federal
constitution and federal law.
41
State courts generally have a duty under
the Supremacy Clause to hear federal claims. See
Haywood v. Drown, 556 U.S. 729, 732-35 (2009);
Howlett v. Rose, 496 U.S. 356, 367-68 (1990);
Testa v.Katt, 330 U.S. 386, 391-94 (1947).
In fact, the deferential standard of review in
parental rights cases is premised on the belief that
states will make "good-faith attempts to honor
constitutional rights." Washington v. Glucksberg,
521 U.S. 702 (1997).
The lower court's belief that the text "clearly
conveys" something does not make it so. The statute
does not convey whether all six of the criteria must be
met or not, and because interpreting it as such would
be absurd, the other interpretation—that all six of the
criteria
cannot be
interpretation
met—must be the
followed.
42
The
logical
supremacy-of-text
principle
asserts
that
a
statute
should
be
interpreted according to its plain meaning, therefor
by completely ignoring that fact there is no clear
language in their interpretation of the statute that
would render this doctrine appropriate.
A strict interpretation leaving natural parents
without any remedy upon which to ever see their
children again should be the lens through which this
statute is read. It would run afoul of its statutory goals
of reunification and promoting the bonds between
the
children
and
their
natural
parents.
The
supremacy-of-text principle, the fundamental basis
for statutory interpretation followed by Florida's
courts, requires an interpretation based on the
context of the words in the statute and what they
convey. Dep't of Children & Families v. Manners, 328
So. 3d 1044, 1047 (Fla.
43
5th DCA 2021].
When this Court interprets the statute, it can
look to (1] the supremacy-of-text principle, which
necessarily
includes
the
in
pari
materia
requirement of being read in harmony with the rest
of Chapter 39, and [2] the absurdity doctrine, which
shows that the statute cannot require all six or else
no one would be able to petition under it. Thus, here,
when the legislature is silent on whether all six
criteria should be met, and interpreting the statute
to require all six criteria would result in an absurd
outcome of no one being able to bring a petition
under the statute, it cannot be added.
This Court can look at Florida Rule of Juvenile
Procedure 8.540, Motion to Reinstate Parental
Rights, which was created in response to this
statute, for insight as to what the legal minds
44
in the Florida dependency realm believe the statute
to require. It does not state that a court must find
all the criteria be met, but instead it must include
all relevant evidence throughout the whole of
Chapter 39, not just the reinstatement statute. The
Florida Supreme Court did not limit the lower
courts' inquiries to just the criteria in the statute for
purposes of the evidentiary hearing, nor did it
require that all of the criteria must be met. In re
Amends, to Fla. Rules ofjuv. Proc.-2021 Fast-Track
Rep., 345 So. 3d 729, 730 (Fla. 2022). In fact, the
only criteria definitively listed is regarding the final
evidentiary hearing, wherein the Rule requires the
court to find that it is in the best interest of the child
for reinstatement, after visitations and trial home
visits for at least three months have occurred. Fla.
R. Juv. P. 8.540(d). The fact remains that no
45
conjunction exists at all, not even at the end of the list,
to show whether it should be read conjunctively or
disjunctively. Thus, because it cannot be read
conjunctively and exist in harmony with Chapter 39,
it must necessarily be read disjunctively. Applying
these basic tenets of statutory interpretation and
grammar, the statute requires a reading consistent
with the plain language identified above while
upholding the Supremacy Clause.
The absurdity of interpreting a statute in a
way
that
would
render
its
satisfaction
an
impossibility extends to the absurd assertion that
this
Court
should
essentially
ignore
that
impossibility. The lower court's interpretation
takes a stance that it should be difficult to reunite
natural parents with their children. Aside from
46
being a concerning position for a government entity that
is statutorily tasked with preserving natural
families and promoting reunification, it is also an
absurd position to take legally. The outcome of
requiring all six criteria would be a gatekeeping
statute that would prevent any natural parent from
ever hoping to reunify with their children, would
prolong children in the foster system just to meet an
arbitrary three-year criterion, and other similarly
absurd outcomes. It would expend judicial economy
because, during this suddenly required three-year
waiting period— or even longer, if the child is not
yet 13—the court retains jurisdiction and must hold
certain hearings, the Guardian ad Litem is still
assigned to the case and must expend resources on
managing the case, and the child waits in flux and
uncertainty. This cannot possibly be what the
47
legislature intended when it crafted this statute,
aptly named in conjunction with the legislative
intent: Reinstatement of Parental Rights. § 39.8155,
Fla. Stat. (2022). The lower court's interpretation is
not merely an unintended result, but an absurd one,
which literally contradicts the name of the statute.
For the lower court to blithely dismiss entire
categories of natural parents by treating such result
as consequentialism contradicts the Supremacy
Clause.
The
concept
of "consequentialism"
is
inappropriate here, as it applies when there are
unintended results from a legislative act. Here, the
result is not merely unintended, but an absurd one. In
fact, multiple absurd results would exist under the
lower court's statutory interpretation. The lower
court's interpretation argue the concept of limiting
the reinstatement of parental rights to certain
48
categories of former parents is not absurd, but they
overlook the primary issue, that the parents
specifically mentioned as ones that should be able to
bring a claim under the statute could not, if all six
criteria must be met. For example, if a parent had
to voluntarily relinquish their child, and the child was
a baby or toddler, they would have to wait a decade or
so to ever hope to be reunited again, regardless of the
reasoning, or how long it took them to get back on
their feet and in a position to care for the child. It is,
quite simply, illogical to assume that would be the
intent of the Florida legislature.
The lower court's position implies that if
natural parents were reunited with their children,
then they would be at risk despite nothing to support
the
concept of pre-crime.
The
lower court's
interpretation of a statute could potentially harm
49
whole classifications of natural parents. Trying to
gatekeep because some natural parents who
possibly should not have their rights reinstated
could potentially petition under the statute is not a
good reason to eliminate scores of natural parents
who should have their rights reinstated. That is,
quite simply, absurd and again violates the federal
laws protecting the preservation of families.
Chapter 39 should not be compartmentalized,
and the lower court should not be allowed to pick and
choose which portions of the chapter should be read
in harmony. Further, attempting to use the definition
of "parent" as not including anyone whose rights have
been terminated would then render the statute at
issue inherently faulty. Section 39.8155, Florida
Statutes, states: "After parental rights have been
terminated...a parent whose rights were
50
terminated...may file a motion to reinstate the
parent's parental rights." § 39.8155, Fla. Stat.
(2022) (emphasis added). The statute continues
with three of the six criteria all beginning with "The
parent." Then, the suggested "significant change in
circumstance. The lower court interprets the statute
in a way that would adversely affect hundreds of
thousands of Florida parents, especially those that
have not been perpetrators. The incorrect legal
construction of the statute cannot be used as it
creates barrier to prevent countless other natural
parents
to
pursue
reinstatement with their
children.
The Florida foster care system, part of which is
funded by Florida taxpayers, while the federal
government funds the balance. The numbers as
current as 2018 (the most recent available) show the
51
federal government providing funds equaling some
61% [$776,840,104 of the $1,295,069,665 total], with
state and local funding for the balance. Under state
and federal law, the purpose of the foster care system
is to provide for the care, safety, and wellbeing of
minor children in Florida, with their families to be
engaged in constructive, supportive, and nonadversarial relationships, with as little intrusion into
the life of the family as possible. See,
e.g. Fla Stat. §39.001 [2018, unless otherwise
specified). It is disheartening that the lower court
prefer to interpret the law in such a way that
prevents reunification with the natural parents
when possible. The Petitioner's case is extremely
unique and would benefit from further review
because termination of parental rights is termed the
"civil death penalty." In re Smith 11 Ohio App.3d 1,
52
(1977] (Permanent termination of parental rights
has been described as “the family law equivalent of
the death penalty in a criminal case.)
CONCLUSION
The petition for a writ of certiorari should be
granted.
Respectfully submitted,
BRITTANY BUDLOVE
Pro Se
18443 Maple St.
Lansing, IL 60438
AUGUST 12, 2023
53
A1
APPENDIX A
FILED
CIRCUIT COURT
SIXTH JUDICIAL CICUIT
DEC. 7, 2019
NIKKI ALVAREZ-SOWLES, CLERK AND
COMPTROLLER PASCO COUNTY FLORIDA
IN THE CIRCUIT COURT OF
THE SIXTH JUDICIAL CICUIT
CASE NO. 2019DP000262DPAXWS
In the Interest of T.B, A Child
Order for Placement in Shelter
THIS CAUSE came on to be heard under
chapter 39, Florida Statutes, on the sworn
AFFIDAVIT AND PETITION FOR PLACEMENT
IN SHELTER CARE filed by Beth Mason, CPI, on
12/7/19.
DONE AND ORDERED in Pasco County,
Florida, this 7th day of December 2019.
s/Debra Roberts
Circuit Judge
54
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.