Opinion
No. 97-4231.
Opinion filed September 22, 1999.
Appeal of a non-final order from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Arthur M. Birkin and George A. Brescher, Judges; L.T. No. 93-9706 CJDP.
A.G. and D.J., Sunrise, pro se.
Robert A. Butterworth, Attorney General, Tallahassee, and Jill Bennett, Assistant Attorney General, Fort Lauderdale, for appellee.
In A.G. v. Department of Children and Family Services, 707 So.2d 972 (Fla. 4th DCA 1998), we concluded that an order adjudicating children dependent was a final order which had to be appealed when it was entered. The Florida Supreme Court, after considering conflicting decisions, disagreed with us and held that an order adjudicating dependency can be appealed either at the time it is entered, or by appeal from a subsequent final disposition order. The question now before us is whether we have jurisdiction to review the order adjudicating dependency, where there was no timely appeal taken from that order.
This case reached us in its present posture because, in 1997, several years after entry of the November 21, 1994 order finding dependency, which was not appealed, the appellants appealed subsequent orders. They argued, among other things, that the trial court had erred in not holding a disposition hearing pursuant to section 39.41, Florida Statutes (1994). We dismissed the appeal insofar as it was an attempt to appeal the 1994 order because it was untimely, but redesignated the appeal as a petition for writ of mandamus in regard to appellant's claim that the trial court should be ordered to conduct a disposition hearing. We concluded that there had in fact been a disposition hearing on November 21, 1994, the same date the order adjudicating dependency was entered, and denied relief. Our opinion in that case, A.G. v. Department of Children and Family Services, 716 So.2d 792 (Fla. 4th DCA 1998),rev. denied, 729 So.2d 389 (Fla. 1999), reflects the procedural history pertinent to our discussion here.
The state now argues that in our opinion holding that there had been a disposition hearing we also held that the 1994 order adjudicating dependency was a disposition order, as well as an order determining dependency, and, no appeal having been timely taken from that order, this appeal should be dismissed. We agree with the state that we do not have jurisdiction to review the order entered on November 21, 1994; however, we disagree that the order was a dispositional order. We do so because the order is not at all clear in that respect, and our opinion reported at 716 So.2d 792 does not clearly state that it was such. We therefore dismiss the appeal without prejudice to appellants moving for entry of a dispositional order, which they can then appeal and challenge the 1994 order adjudicating dependency. Appeal dismissed.
Appellants argue that the November 21, 1994 order adjudicating dependency does not contain necessary findings of fact. D.S. v. Department of Health and Rehabilitative Servs., 642 So.2d 628 (Fla. 1st DCA 1994) (even where a parent consents to an adjudication of dependency the trial court must still set forth a brief statement of facts supporting the adjudication.). On remand the trial court is not precluded from considering that issue or others, because of the passage of time and the possibility that circumstances may have changed. Ash v. Department of Health and Rehabilitative Servs., 649 So.2d 305 (Fla. 5th DCA 1995).
WARNER, C.J., and POLEN, J., concur.