author: BROWNING, C.J.

text:
    A.W., Mother, In the Interest of B.W., a minor child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 1D07-1724.
    District Court of Appeal of Florida, First District.
    Nov. 20, 2007.

      Shalene Grover, Altha, for Appellant.
    George J. Little, Marianna, for Appellee, Department of Children & Families; Hillary S. Kambour, Miami, for Appellee Guardian ad Litem Program.
   BROWNING, C.J.

A.W. (Appellant) appeals a final order terminating her parental rights to B.W., her five-year-old daughter, in which the trial court found clear and convincing evidence that satisfied the requirements for termination under section 39.806(1), Florida Statutes (2006). We have jurisdiction to review this ruling pursuant to section 39.815, Florida Statutes (2006). We affirm the termination order in all respects, but we write to explain that Appellant’s purported substantial compliance with her case plan was merely technical, at most, and in no way demonstrated her ability to comprehend and implement the basic parenting skills and practices necessary to assure her child’s health, safety, and well-being. See § 39.01(71), Fla. Stat. (2006) (defining “substantial compliance” to mean “that the circumstances which caused the creation of the case plan have been significantly remedied to the extent that the well-being and safety of the child will not be endangered upon the child’s remaining with or being returned to the child’s parent”).

Appellant is developmentally disabled. Her personal history is unfortunate. As a child, she was adjudicated dependent and remained in the custody of her mother, D.W. Before Appellant turned 18, she was sexually abused, resulting in the conception of the child, B.W. The child’s father, who was convicted of the sexual offense and was incarcerated accordingly, is not a party in this appeal. The child was adjudicated dependent as to Appellant in December 2003 and as to the child’s father in August 2004. See § 39.01(14), Fla. Stat. (2006) (defining “child who is found to be dependent”).

The order adjudicating dependency states that the home in which Appellant and the child resided posed a serious health and safety hazard, that the child had sustained physical injuries consistent with abuse, and that Appellant’s low I.Q. and mild mental retardation rendered her “incapable of learning the basic parenting skills necessary to parent children.” The child has been in state custody and care since January 2003. Following the adjudication of B.W.’s dependency, Appellant received a detailed case plan that required her, inter alia, to maintain a safe, clean, sanitary, and stable home; to demonstrate a commitment to the child by regularly providing financial support and other items necessary to support the child; to attend all parenting classes and cooperate with the counselor on issues of parenting, appropriate child supervision, and safe home conditions; and to use this information during her visitations with the child by applying and demonstrating proper parenting skills. See generally § 39.6011-39.6013 & 39.603, Fla. Stat. (2006) (setting out procedures for case plan development, tasks, services, amendments, and court approval).

To assist her in fulfilling the case plan tasks, the appropriate referrals were made by appellee Florida Department of Children and Family Services (Department) and services were provided. Although Appellant attended the programs to which she was referred, the Department determined that Appellant had failed to eliminate the filthy and hazardous conditions in her home, and that she had failed to demonstrate sufficient parenting skills to protect B.W. from serious harm.

Pursuant to section 39.802, Florida Statutes (2006), the Department initiated proceedings to terminate Appellant’s parental rights based on her failure to complete the case plan and the continuing risk of serious harm to B.W. irrespective of the provision of services to Appellant. See also § 39.8055(l)(a), Fla. Stat. (2006) (allowing 12 months for parents of a dependent child to complete their ease plan sufficiently to have their child returned to parental custody and care, and mandating initiation of termination proceedings absent timely compliance by parents) & 39.806(l)(e)l., Fla. Stat. (2006), infra. As grounds for terminating Appellant’s parental rights, the Department cited sections 39.806(l)(b), (c), or (e), Florida Statutes (2006). Specifically, the Department alleged that Appellant had abandoned and neglected the child, as the terms “abandoned” and “neglect,” respectively, are defined in section 39.01(1) & (43), Florida Statutes (2006). In its termination petition, the Department expressly cited the following statutory language or presented allegations substantially related to these specific provisions:

(1) Grounds for the termination of parental rights may be established under any of the following circumstances:
(b) Abandonment as defined in s. 39.01(1)....
(c) When the parent or parents engaged in conduct toward the child or toward other children that demonstrates that the continuing involvement of the parent or parents in the parent-child relationship threatens the life, safety, well-being, or physical, mental, or emotional health of the child irrespective of the provision of services....
(e) When a child has been adjudicated dependent, a case plan has been filed with the court, and:
1. The child continues to be abused, neglected, or abandoned by the parents. In this case, the failure of the parents to substantially comply for a period of 12 months after an adjudication of the child as a dependent child or the child’s placement into shelter care, whichever came first, constitutes evidence of continuing abuse, neglect, or abandonment unless the failure to substantially comply with the case plan was due either to the lack of financial resources of the parents or to the failure of the department to make reasonable efforts to reunify the parent and child. The 12-month period begins to run only after the child’s placement into shelter care or the entry of a disposition order placing the custody of the child with the department or a person other than the parent and the approval by the court of a case plan with a goal of reunification with the parent, whichever came first; ...
(3)- When a petition for termination of parental rights is filed under subsection (1), a separate petition for dependency need not be filed and the department need not offer the parents a case plan with a goal of reunification, but may instead file with the court a case plan with a goal of termination of parental rights to allow continuation of services until the termination is granted or until further orders of the court are issued.

§ 39.806(1)(b), (c), (e)1. & (3), Fla. Stat. (2006). As defined in pertinent part in section 39.01(1), Florida Statutes (2006):

“Abandoned” means a situation in which the parent or legal custodian of a ehild[,j ... while being able, makes no provision for the child’s support and makes no effort to communicate with the child, which situation is sufficient to evince a willful rejection of parental obligations. If the efforts of the parent ... are, in the opinion of the court, only marginal efforts that do not evince a settled purpose to assume all parental duties, the court may declare the child to be abandoned.

According to the pertinent language in section 39.01(43), Florida Statutes (2006):

“Neglect” occurs when a child is deprived of, or is allowed to be deprived of, necessary food, clothing, shelter, or medical treatment or a child is permitted to live in an environment when such deprivation or environment causes the child’s physical, mental, or emotional health to be significantly impaired or to be in danger of being significantly impaired. The foregoing circumstances shall not be considered neglect if caused primarily by financial inability unless actual services for relief have been offered to and rejected by such person.... Neglect of a child includes acts or omissions.

To support its termination petition, the Department alleged 1) that Appellant had engaged in conduct toward B.W. demonstrating that Appellant’s continuing involvement in the parent-child relationship and in the child’s life threatened the child’s life, safety, emotional and developmental well-being, or physical, mental, or emotional health irrespective of the provision of services; 2) that although Appellant technically had substantially complied with the case plan, she remained unable to demonstrate her ability to parent the child in an appropriate manner; and 3) that Appellant had failed either to provide emotional or monetary support for the child, or in any way to evince a settled purpose to assume parental responsibility for her child. The Department asserted that such conduct on Appellant’s part had continued, despite the offer of services, and that the result was that B.W. had remained out of Appellant’s custody and care for more than twelve months.

Tracking all the relevant factors set forth in section 39.810(1)-(11), Florida Statutes (2006), the Department alleged that it is in the child’s manifest best interests that parental rights be terminated. No suitable permanent custody arrangements existed with other family members who might adopt the child. Both parents had failed to demonstrate the disposition to provide B.W. with food, clothing, medical care, and other significant needs of the child. Neither parent had paid child support during the pendency of the proceedings, nor had they maintained suitable housing or a stable income. The Department alleged that the child would continue to be at risk of harm if she were returned to the custody of the parents, given the parental history of abuse and neglect and the failure to comply substantially with the case plan in any meaningful, constructive manner.

As to the statutory factors relevant in determining what is in the child’s manifest best interests, the record demonstrates that B.W.’s mental and physical development are age-appropriate. Little bonding existed between Appellant and the child, and any bonding that had existed was significantly reduced due to the child’s removal from parental custody. Although Appellant visited B.W. regularly, the child had been in the Department’s custody longer than in parental custody. The child, then four years old, was deemed highly unlikely to remain in foster care on a long-term basis upon termination of parental rights due to any emotional or behavioral problems or special needs. The child had adjusted well to the current home, where she had lived since May 2003. The child had demonstrated the ability to bond with a parental substitute, as shown by her positive relationship with her current care-givers. The child was too young to be able to express her individual preference. A guardian ad litem (GAL) was appointed to the case pursuant to section 39.822, Florida Statutes (2006).

Given the very serious consequences of the termination of parental rights, the quantum of proof required to support the trial court’s ruling is “clear and convincing evidence.” § 39.809(1), Fla. Stat. (2006). The Florida Supreme Court has characterized such evidence as follows:

This intermediate level of proof entails both a qualitative and quantitative standard. The evidence must be credible; the memories of the witnesses must be clear and without confusion; and the sum total of the evidence must be of sufficient weight to convince the trier of fact without hesitancy.

Inquiry Concerning Davey, 645 So.2d 398, 404 (Fla.1994); In re Adoption of E.A.W., 658 So.2d 961, 967 (Fla.1995). “Our standard of review is highly deferential. A finding that evidence is clear and convincing enjoys a presumption of correctness and will not be overturned on appeal unless clearly erroneous or lacking in eviden-tiary support.” N.L. v. Dep’t of Children & Family Servs., 843 So.2d 996, 999 (Fla. 1st DCA 2003). Following a full adjudicatory hearing under section 39.809, Florida Statutes (2006), where Appellant was represented by an attorney, the trial court found clear and convincing evidence that B.W. had been abandoned, abused, or neglected by Appellant; that no parent or legal custodian was available and capable of providing adequate care; that the child was at substantial risk of imminent abuse, abandonment, or neglect by Appellant if termination did not occur; and that the termination of parental rights was in the child’s manifest best interests. The child was re-adjudicated dependent, Appellant’s parental rights were terminated, and the child was placed in the Department’s permanent care and custody for subsequent adoption.

In a separate disposition order pursuant to section 39.811, Florida Statutes (2006), the trial court determined that due to Appellant’s own psychological and cognitive limitations, she is simply unable to parent B.W. safely and appropriately. The court found that it would not be in the child’s manifest best interests to allow any post-termination visitation between Appellant and B.W. The court allowed Appellant to write the child every month for the first year post-termination, and once every six months thereafter. The foster parents were directed to screen incoming letters from Appellant to the child and were instructed to send a photo of the child to Appellant every six months. No telephone calls will be permitted between Appellant and the child. The Department and the GAL were authorized to seek modification of this visitation plan if the child were to demonstrate any significant signs of separation anxiety.

Appellant appeals the adjudication and disposition rulings on three grounds. First, Appellant contends that the trial court erred in concluding that no reasonable basis exists to believe that any further services could remedy her inadequate parenting skills and the other deficient circumstances that threatened the child’s health, safety, and well-being. Second, Appellant argues that termination of her parental rights is not the least restrictive means available to protect her child from harm. Third, Appellant asserts that it was error for the court to terminate her visitation with the child. We address Appellant’s arguments separately.

I. Futility of Any Further Sewices to Remedy Unacceptable Conditions

Clear and convincing expert and lay evidence in the record supports the trial court’s findings that the Department offered the requisite referrals, services, and information, yet the conditions in the home where Appellant and the child resided continued to pose a serious health and safety hazard to a mobile child. Home intervention services tried to correct or mitigate the home maintenance problems but were met with strong resistance from Appellant’s mother; these services were discontinued for the safety of the service provider. Despite the Department’s repeated efforts to assist Appellant in identifying and remedying these serious deficiencies in the home, Appellant is simply unable to address and eliminate the wretched conditions in the home, other than on a temporary, short-term basis.

The record supports the finding that the physical injuries to the child (a bite mark on her arm and bruising about the face and head), which were alleged to have occurred in January 2003, are consistent with physical abuse. Appellant has not provided financially for herself and B.W. Appellant lacks stability in terms of education, skills, age, and personal lifestyle conduct, thereby posing a substantial risk of imminent neglect of the child. Significantly, clear and convincing evidence in the record demonstrated that even after the Department provided a full panoply of appropriate services (including counseling and skills training opportunities), over an extended period time, Appellant remained incapable of putting this instruction into practice.

For example, one of the Department’s care managers, Ms. Yon, testified that she was aware of the tasks set forth in Appellant’s case plan. Yon testified that it is normal and reasonable for such tasks to mean that the participant must demonstrate the ability to put the instruction into practice. Appellant was unable to implement the tasks that were the subject of her instruction under the case plan, including effective parenting skills and safe home maintenance. Yon testified that the Department had done everything feasible to facilitate a reunification of Appellant and her child. Further, Ms. Reister, who was Appellant’s mental-health counselor at the Life Management Center beginning in November 2002, testified that the goals of parenting classes include developing appropriate, effective parenting skills and learning effective anger management. She testified that although Appellant actively participated in the class, Appellant made minimal progress toward her treatment goals.

Ms. Miller, the GAL since late April 2005, expressed concerns for B.W.’s safety if the child were returned to the filthy, cluttered home. Miller noted a lengthy family history of abuse and neglect. The GAL found no extensive bonding between Appellant and B.W. The GAL did not think the child would remain in foster care for long. She recommended that the child be placed for adoption and not be returned to Appellant.

Dr. Koehnemann, a licensed psychologist who evaluated Appellant’s cognitive abilities, personality, and parenting skills, testified that Appellant is in the borderline range of intellectual functioning and has “some significant deficit” in parenting abilities, including severe problems with anger management and bonding/attachment. The evaluation disclosed that Appellant is unable to apply good insight to the ordinary problems confronting the parent of a young child. Appellant felt overwhelmed trying to keep up with and manage B.W., who was one year old at the time of the evaluation. Appellant did not understand the child’s developmental level and needs, and her parenting skills were “very poor.” Appellant exhibited difficulty interpreting and dealing with specific child behaviors. She did not understand that the sub-standard conditions in the home pose a significant health and safety problem. Whether Appellant could change depended on her ability to master the necessary parenting skills and to develop an emotional, maternal attachment to the child. This psychologist opined that at the time of the evaluation, B.W. was at risk in Appellant’s household and care due to Appellant’s anger management issues and low frustration tolerance.

The problem goes beyond the question of whether further services should be provided by the Department to Appellant. Dr. Koehnemann opined that it is possible Appellant might never be able to learn what she needs to know to parent B.W. safely and effectively. Given Appellant’s cognitive status, much more time would be needed to find someone whom Appellant could understand and to determine whether Appellant is capable of learning better parenting skills.

Dr. Oseroff, another psychologist who performed an evaluation of Appellant and the child, an in-home assessment, and a bonding assessment in August-September 2006, characterized Appellant as mildly mentally retarded. This witness testified that although Appellant was able technically to complete the counseling program, Appellant found it difficult to know and understand what the training was intended to impart. This psychologist opined that although Appellant is a wonderful person and a gentle spirit, the essential elements for creating a safe environment for the child are absent. Appellant’s “intellectual deficit” impaired her ability to prioritize daily tasks and concerns essential to safe, effective parenting. She had difficulty recognizing if, and when, she needed outside assistance. Dr. Oseroff testified she did not know of any further services that could rectify these problems on a long-term basis in Appellant’s case. See R.K. v. Dep’t of Children & Families, 898 So.2d 998, 1000 (Fla. 5th DCA 2005) (noting that conclusion that the Department’s further provision of services would be futile “generally requires proof that the parent suffers from a condition that makes probable the prospect of future abuse or neglect of a child and that the condition was one which was likely to continue”); L.B. v. Dep’t of Children & Families, 835 So.2d 1189, 1195 (Fla. 1st DCA 2002) (“If the parent is so afflicted that no reasonable basis exists for improvement, then the court may find prospective neglect or abuse.”).

Noting the child’s precociousness and strikingly higher intellectual level of functioning, Dr. Oseroff testified there was a tremendous risk that if B.W. lived with her mother and grandmother, the child would grow up to be the primary care-giver for everyone else in the home. The witness testified that the adults in the home were unable to do what the Department required them to do, to the detriment of the child’s best interests. This psychologist opined that B.W. very likely would not reach her full potential if she were to remain in Appellant’s home and care. The child had established a strong bond with her foster family, whereas her interaction with Appellant was more like a friendship between equals than a parent-child relationship. Dr. Oseroff opined it would be in the child’s best interests to remain with her foster parents and to be adopted.

The expert testimony supports the trial court’s conclusion that Appellant’s low I.Q. and mild mental retardation render her unable to learn the basic parenting skills necessary to rear her child, despite Appellant’s intermittent, incomplete efforts to do so. It is not unreasonable to conclude that Appellant remains basically dependent herself. Therefore, although she is a loving parent who technically performed all the superficial tasks set out in the case plan, Appellant failed to demonstrate her ability to comprehend what the case plan requires in terms of implementing the basic skills necessary to be an effective parent. In other words, the record demonstrated that Appellant could not achieve a level of comprehension and behavior necessary to ensure B.W.’s health, safety, and well-being irrespective of the Department’s provision of more services. Appellant’s acts and omissions simply did not square with the Florida Legislature’s definition of “substantial compliance.” See § 39.01(71), Fla. Stat. (2006).

Appellant misplaces her reliance on M.H. v. Department of Children & Families, 866 So.2d 220 (Fla. 1st DCA 2004) (on clarification), in which we explained the three sequential evidentiary requirements for terminating parental rights under section 39.806(1)(c), Florida Statutes (2001). Appellant suggests that the trial court ignored evidence that she had “completed” her case plan tasks and continued taking classes and receiving counseling. In M.H., we described the appropriate evidentiary-analysis as follows. “First, the trial court must find the child’s life, safety, or health would be threatened by continued interaction with the parent, regardless of the provision of services.” Id. at 222. “Second, if the court finds the child[ ] would be threatened with harm, despite the provision of services, [the Department] must then prove there is no reasonable basis to believe the parent will improve.” Id. at 222-23; see L.B., 835 So.2d at 1195. “Finally, [the Department] must show termination is the least restrictive means of protecting the child from serious harm.” M.H., 866 So.2d at 223; see L.B., 835 So.2d at 1195. In M.H., none of these requirements were met. See 866 So.2d at 223. In contrast, in Appellant’s case, the Department presented clear and convincing evidence, which the trial court accepted, satisfying all three sequential requirements of the statute.

II. Termination is the Least Restrictive Means Available to Protect the Child

“Natural parents have a fundamental liberty interest in the care, custody, and management of their children.” Interest of C.W.W., 788 So.2d 1020, 1023 (Fla. 2d DCA 2001) (citing Santosky v. Kramer, 455 U.S. 745, 754, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982)). Given this fact, the Department has the burden to prove the allegations supporting termination by clear and convincing evidence, and must demonstrate that termination of those rights is the least restrictive means of protecting the child from serious harm. See § 39.809(1), Fla. Stat. (2006); Padgett v. Dep’t of Health & Rehabilitative Servs., 577 So.2d 565, 571 (Fla.1991). “Least restrictive means” analysis embodies due-process concerns. Before depriving someone of a fundamental right, such as the right to parent, the State must demonstrate a compelling interest and further such an interest through the least intrusive and restrictive means. See N. Fla. Women’s Health & Counseling Servs., Inc. v. State, 866 So.2d 612, 625 n. 16 (Fla.2003); In re T.W., 551 So.2d 1186, 1193 (Fla. 1989). “This means that [the Department] ordinarily must show that it has made a good faith effort to rehabilitate the parent and reunite the family, such as through a current performance agreement or other such plan for the present child.” Padgett, 577 So.2d at 571.

B.W. was adjudicated dependent in December 2003; the adjudicatory hearing on the Department’s petition to terminate was held in January 2007. Appellant’s failure to substantially comply with the case plan in a meaningful manner, after being afforded far more time than the statutory timetable contemplates, constituted evidence of continuing abuse, neglect, or abandonment. See § 39.806(1)(e)1., Fla. Stat. (2006); J.R. v. Dep’t of Children & Family Servs., 754 So.2d 714, 716-17 (Fla. 4th DCA 1998). Because the Department made reasonable, good-faith efforts to rehabilitate Appellant for reunification with B.W. by providing more than three years of services, which ultimately proved futile, the trial court correctly determined that the termination of Appellant’s parental rights is the least restrictive means of protecting the child from serious harm and neglect. The Department notes that the child’s right to a permanent, stable, and safe home must trump Appellant’s right to have more time to understand and implement the essential parenting skills, especially where the expert evidence clearly demonstrated that the provision of yet more counseling and services to Appellant would be futile.

Further, achieving a safe and permanent home expeditiously for children is a primary purpose of Chapter 39. See §§ 39.001(1)(h), 39.013(5), 39.402(14)(e) & 39.621(1), Fla. Stat. (2006). “[A]s between the parent and the child the ultimate welfare of the child itself must be controlling.” State ex rel. Sparks v. Reeves, 97 So.2d 18, 20 (Fla.1957); Padgett, 577 So.2d at 570. “At all stages of the proceedings, courts are compelled to expedite proceedings to prevent children from languishing in the foster care system.” C.M. v. Dep’t of Children & Family Servs., 854 So.2d 777, 779 (Fla. 4th DCA 2003); B.Y. v. Dep’t of Children & Families, 887 So.2d 1253, 1256 (Fla.2004); see Fla. R.App. P. 9.146(g) (prioritizing appeals in termination of parental rights cases). The intended one-year period for reunification of Appellant and her child was already extended fourfold. Thus, due process required nothing more than what the Department provided to Appellant in this case, and no further extension of time was necessary, given the particular circumstances.

III. Termination of Physical Visitation and Limitation of Other Contact With Child

Appellant has not met her burden to show an abuse of discretion in the trial court’s ruling on post-termination communications between Appellant and B.W. The visitation specialists testified that although the visitations between Appellant and her child were generally very pleasant, their interaction did not indicate a parent-child relationship. Rather, their communications were more in the nature of child-to-child interplay, and Appellant required constant supervision to assure that the child was handled safely, was monitored while negotiating stairs and being around electrical outlets, and was properly removed from the high-chair. Appellant was easily distracted by other visitors or toys, sometimes leaving B.W. to play alone.

Section 39.811(7)(b), Florida Statutes (2006), gives the trial court discretion to allow continued parent-child contact or other communication, if appropriate and in the child’s best interests, after a termination of parental rights. See Dep’t of Children & Family Servs. v. A.D., 904 So.2d 480, 482 (Fla. 1st DCA 2005). The trial court relied on Dr. Oseroff s specific expert recommendations to devise an appropriate plan for maintaining limited written communications between Appellant and her child, without any physical visitation post-termination.

For all of these reasons, the order terminating Appellant’s parental rights is AFFIRMED in all respects.

ALLEN and VAN NORTWICK, JJ., concur.


source: Caselaw Access Project

author: ROBERTS, J.

license: Public Domain

text:
    E.B., the Father In the Interest of A.B., J.B., and J.W., Minor Children, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 1D07-1303.
    District Court of Appeal of Florida, First District.
    Nov. 20, 2007.

      Angela M. Ball, Perry, and Walter Flinn of Marsee & Flinn, P.P.L.C., Lake City, for Appellant.
    Lucy Goddard-Teel, Gainesville, and Heidi Kemph, Lake City, for Appellee.
    Wendie Michelle Cooper, Orlando, and Thomas Copeland, Live Oak, for the Guardian Ad Litem Program.
   ROBERTS, J.

E.B., the father, appeals from the trial court’s denial of his motion to modify placement of his children, A.B. and J.B., pursuant to section 39.521(3)(b), Florida Statutes (2006). He argues that there were not sufficient findings to support the denial and that the trial court applied the wrong legal standard. We agree and reverse.

Based upon the consent of N.B., the mother, the trial court entered an order of adjudication of dependency providing that the children remain in the custody of the Department of Children and Families (the Department) in foster care. The Department filed a motion for priority placement of the children with the father under the Interstate Compact on the Placement of Children. A home study of the father was prepared by the Ohio Department of Job and Family Services and filed with the trial court. The home study provided that the father was able to provide a stable and secure home to the children at that time and that he did not have a criminal record. Based upon the positive home study, the father filed a motion for modification of placement of the children with him.

In its written order, the trial court found that it was in the children’s best interest to remain in foster care and that there were questions concerning the out-of-state placement of the children with the father due to home study concerns arising out of the domestic violence incident between the father and the mother. Based upon those findings, the trial court ordered the children remain adjudicated dependent and in foster care until further order.

Section 39.521(3)(b), Florida Statutes (2006), provides that, following an adjudication of dependency,

[i]f there is a parent with whom the child was not residing at the time the events or conditions arose that brought the child within the jurisdiction of the court who desires to assume custody of the child, the court shall place the child with that parent upon completion of a home study, unless the court finds that such placement would endanger the safety, well-being, or physical, mental, or emotional health of the child. Any party with knowledge of the facts may present to the court evidence regarding whether the placement will endanger the safety, well-being, or physical, mental, or emotional health of the child.

As this Court explained in L.P. v. Department of Children & Families, 871 So.2d 306, 308 (Fla. 1st DCA 2004) (citations omitted):

The “best interest standard” does not apply under this section and in the absence of evidence of endangerment, the non-offending parent is entitled to custody. A natural parent cannot be denied custody of his child unless evidence demonstrates compelling reasons that the parent is unfit or otherwise unable to exercise custody, and that placing the child with the parent would endanger the child’s safety and well-being.

The trial court stated at the hearing that it found that placement with the father would be dangerous, but did not carry that finding over into its written order. In the written order, the trial court used the improper “best interest standard” and expressed concern over the home study finding of a domestic violence incident between the mother and the father. The home study, however, included no such finding. Since the home study approved the placement, the trial court was required to place the children with the father unless it made findings that such placement would endanger the children. See In the Interest of K.M., 946 So.2d 1214, 1219 (Fla. 2d DCA 2006).

Children have the right to be raised by their parents. If a child is adjudicated dependent as to one parent, the non-offending parent should be given custody unless the trial court finds that parent to be unfit or that the child would be endangered if placed in his or her custody. Because the oral and written findings were inconsistent and the incorrect “best interest” standard was used to determine whether the children could be placed with their father, the trial court abused its discretion in denying the motion.

REVERSED and REMANDED for proceedings consistent with this opinion.

DAVIS and LEWIS, JJ., concur.


author: PER CURIAM. BROWNING, C.J.,

text:
    Tyrone MADRY, Appellant, v. STATE of Florida, Appellee. State of Florida, Appellant, v. Tyrone Madry, Appellee.
    Nos. 1D06-6701, 1D06-6305.
    District Court of Appeal of Florida, First District.
    Nov. 20, 2007.

      James C. Banks, Special Assistant Public Defender, Tallahassee, for Tyrone Ma-dry.
    Bill McCollum, Attorney General, and Philip W. Edwards, Assistant Attorney General, Tallahassee, for the State of Florida.
   PER CURIAM.

Tyrone Madry appeals the revocation of his probation and ensuing prison sentence. He alleges that the State failed to meet its burden of proof at the revocation hearing because it relied on an out-of-court declaration by a witness who testified at the hearing that he never made any declaration out of court and did not “know any person by the name of Tyrone Madry.” Unable to distinguish Baugh v. State, 961 So.2d 198, 206 (Fla.2007), in principle, we reverse and remand with directions that appellant’s probation be reinstated, mooting the State’s (cross-) appeal.

At issue at the revocation hearing were various alleged new law violations: attempted armed robbery of one David Smith, aggravated assault with a firearm on the same David Smith, and possession of a firearm at the same time and place. David Smith testified at the revocation hearing that somebody with a gun tried to rob him on August 1, 2006. But he denied giving any written or oral statement to a deputy sheriff investigating the crime, specifically denied identifying Tyrone Madry as the perpetrator, and testified he did not know Tyrone Madry. Three alibi witnesses put Mr. Madry elsewhere at the time of the attempted robbery.

On the other hand, a deputy sheriff who investigated the attempted robbery testified that Mr. Smith had identified Mr. Madry as his assailant, both orally and in writing. Mr. Smith was shown a written statement (which he denied writing) that identifies “Tyrone Magice,” not “Tyrone Madry,” as the malefactor. (In different handwriting, the paper on which the written statement appears contains the notation “Madry” with an arrow pointing toward “Tyrone Magice,” but the deputy sheriff was not certain who had written “Madry,” and nobody testified that Mr. Smith had done so.)

At the hearing, trial counsel objected, “I think the State is attempting to convict my client only on hearsay testimony against direct evidence.” On appeal, too, appellant characterizes the deputy’s testimony as hearsay even when it recounts Mr. Smith’s purported identification of his assailant as Mr. Madry. As a technical matter, however, as the State correctly argues, a “statement is not hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement and the statement is: [o]ne of identification of a person made after perceiving the person.” § 90.801(2)(c), Fla. Stat. (2006). This definitional exception “applies regardless of whether the declarant identifies the individual in court.” Charles W. Ehrhardt, Florida Evidence § 801.9 (2006 ed.).

Hearsay is admissible, moreover, in revocation hearings, although revocation of probation cannot be based on hearsay alone. See Stewart v. State, 926 So.2d 413, 414-15 (Fla. 1st DCA 2006); Meade v. State, 799 So.2d 430, 433 (Fla. 1st DCA 2001); Knight v. State, 801 So.2d 160, 161 (Fla. 2d DCA 2001) (“Although hearsay is admissible in a probation revocation proceeding, hearsay cannot be the sole basis to establish a probation violation.” (citing Hines v. State, 789 So.2d 1085, 1086 (Fla. 2d DCA 2001))). The question is not whether the deputy sheriffs testimony was properly admitted, but whether it was a legally sufficient foundation for the critical finding of fact leading to revocation. The standard of review on appeal of revocation of probation is abuse of discretion. See, e.g., State v. Carter, 835 So.2d 259, 262 (Fla.2002).

Although we are not reviewing a criminal conviction here, Baugh is instructive. In Baugh, the defendant had been convicted of capital sexual battery on the basis of a “recanted out-of-court statement” and other, circumstantial evidence of guilt, 961 So.2d at 204, while here the sole evidence of Madry’s probation violation was the repudiated out-of-court statement. Although more than identity was at issue in Baugh, there, as here, a key witness disavowed an out-of-court declaration crucial to the case. See Baugh, 961 So.2d at 206 (Cantero, J., dissenting) (“[O]ut-of-court statements that have been recanted at trial cannot, standing alone, support a criminal conviction.”). We see no reason in principle why such statements, standing alone, should be allowed to support probation revocation, either.

Reversed.

BARFIELD and BENTON, JJ., concur; BROWNING, C.J., concurs with written opinion.

BROWNING, C.J.,

concurs.

I concur. Here the state charges a new law violation as the sole reason for revocation of Appellant’s probation. Since the new law violation cannot result in a conviction as a matter of law, I conclude it cannot support a violation of Appellant’s probation. See Baugh, 961 So.2d at 205.


author: VAN NORTWICK, J.

text:
    Bonnie LAUGHLIN, Appellant/Cross-Appellee, v. HOUSEHOLD BANK, LTD. and Phillips and Cohen Associates, Ltd., Jane Doe, a/k/a Ms. Sheridan and Hiday and Ricke, P.A., Appellees/Cross-Appellants.
    No. 1D06-0005.
    District Court of Appeal of Florida, First District.
    Nov. 20, 2007.

      Bruce Committe, Pensacola, for Appellant/Cross-Appellee.
    Enrico Gonzales, Terrace; and R. Glenn Arnold of Arnold & Wilkins, Pensacola, for Appellees/Cross-Appellants.
   VAN NORTWICK, J.

Bonnie Laughlin appeals a final summary judgment entered against her in her Florida Consumer Collection Practices Act (FCCPA) action against Phillips and Cohen Associates, Ltd. and Jane Doe a/k/a Ms. Sheridan (collectively Phillips), appel-lees. Laughlin argues that the trial court erred in granting summary judgment when disputed issues of material fact remain and in fading to grant a continuance of the hearing relating to the motion for summary judgment. Phillips cross appeals the trial court’s denial of a motion for expenses and motion for sanctions, fees and costs. We agree that disputed issues of material fact remain. Accordingly, we reverse and remand the trial court’s grant of summary judgment. We affirm as to all other issues raised on appeal and cross-appeal.

Household Bank, N.A. sued Laughlin to collect on a credit card debt which had become delinquent. In response to Household’s complaint, Laughlin defended the claim and filed a counterclaim alleging multiple violations of FCCPA by Household. The trial court granted summary judgment on Household’s claim of money owed and granted Household’s motion to dismiss the FCCPA counterclaim. In a separate appeal, Laughlin has appealed these orders.

Laughlin also filed suit against two collection agencies retained by Household, Phillips and Hiday and Ricke, asserting a violation of FCCPA. Laughlin voluntarily dismissed Hiday and Ricke early in the litigation and summary judgment was granted in favor of Phillips. The issues before us in this appeal concern only Laughlin’s claim of a violation of FCCPA by Phillips.

Laughlin asserts that multiple violations of FCCPA were committed by Phillips. More particularly, Laughlin alleges that Phillips has violated subsections (4), (5), (7), and (10) of Section 559.72, by communicating with her employer about the debt owed to Household. In her complaint, she alleged that a representative of Phillips called Laughlin’s office and spoke with her supervisor, Susan Baker. In deposition, Baker testified regarding a message slip that she created in response to a phone call for Laughlin which she had answered. On the slip was written, the name of the caller, the phone number for Laughlin to call, a case number, and two agents for Laughlin to contact. Also, Baker had written at the bottom of the message “Phillips and Cohen”, “Household Bank” and “credit card fraud”. Baker testified that she does not remember the details of the call, but says that she would not have written the information down if it had not been so conveyed over the phone. Further, Phillips’ records show that on November 11, 2002, the date appearing on the message slip, a collection agent from Phillips spoke with Baker.

Laughlin also asserts that Phillips violated Section 559.72(18), which prohibits direct contact with the debtor once the creditor knows that the debtor has retained counsel. Laughlin provided an affidavit from her former counsel stating that on December 11, 2002, he sent a letter to Phillips, via fax, informing Phillips of his representation of Laughlin and instructed Phillips to cease and desist collection efforts. Laughlin testified that she was contacted by Phillips by telephone on December 13, 2002. Phillips responds that they did not receive notice that Laughlin was represented until December 16, 2002, at which time they assert that they made no further contact with Laughlin.

Laughlin also alleges that an employee of Phillips, Layn Offenberger (a/k/a Ms. Sheridan), violated Section 559.72(7) and (8), by willfully speaking to her in an abusive and threatening manner. Laughlin produced a handwritten summary of what she alleges Offenberger said to her on the telephone. Laughlin asserts that Offen-berger said, “Do you know who you’re dealing with here? Well, I’ll tell you who you’re dealing with. This is a multi-million dollar corporation ... They’re going to embarrass you Bonnie. They’re going to embarrass you real bad.” She also has notations throughout the summary of the conversation which state that Offenberger was loud, aggressive and abusive in the conversation. In deposition, Offenberger denied having said the alleged statements and denies having spoken to Laughlin in an abusive manner.

Laughlin also claims that she lost her job as a result of Phillips’ contact with her employer. Phillips produced the letter of termination, however, which states that Laughlin’s employment was terminated for poor performance and behavior unbecoming a state official. Further, Phillips provided testimony of Laughlin’s supervisors that Laughlin’s credit issues were not taken into consideration when deciding to terminate her employment. In response, Laughlin asserts that the embarrassment of the phone call to her employer affected her job performance, which subsequently led to her firing.

“The Consumer Collection Practices Act is a laudable legislative attempt to curb what the Legislature evidently found to be a series of abuses in the area of debtor-creditor relations.” Harris v. Beneficial Finance Company of Jacksonville, 338 So.2d 196, 200-201 (Fla.1976). The FCCPA is to be construed in a manner that is protective of the consumer. See Fla. Stat. § 559.552 (providing that in the event of inconsistencies with the federal Fair Debt Collection Practices Act, the provision that is more protective of the debtor prevails). The Florida Legislature, in enacting the FCCPA, has “further defined and protected an individual’s right of privacy in this state.” Collection Bureau of Orlando v. Continental Casualty Co., 342 So.2d 1019, 1020 (Fla. 4th DCA 1977); See also Terri Jayne Salt, Note, Fair Debt Collection Practices: Analysis of Florida and Federal Law, 30 U. Fla. L.Rev. 892, 905 (1978).

Collecting consumer debt, no person shall: (8) Use profane, obscene, vulgar, or willfully abusive language in communicating with the debtor or any member of her or his family;

“The party moving for summary judgment is required to conclusively demonstrate the nonexistence of a material fact, and the court must draw every possible inference in favor of the party against whom a summary judgment is sought.” Green v. CSX Transp., Inc., 626 So.2d 974, 975 (Fla. 1st DCA 1993) (citing Wills v. Sears, Roebuck & Co., 351 So.2d 29 (Fla. 1977)). Summary judgment should not be granted, and the trial court should not enter summary judgment unless the facts are so crystallized that nothing remains but questions of law. McCraney v. Barberi, 677 So.2d 355, 357 (Fla. 1st DCA 1996). If the evidence will permit different reasonable inferences, it should be submitted to a jury as a question of fact. Id.

Laughlin’s allegations, supported by facts in depositions and an affidavit, considered in the light most favorable to Laughlin, create issues of material fact. For example, record evidence gives rise to questions of fact as to whether an employee of Phillips spoke with Baker, Laughlin’s supervisor, with respect to the collection of the debt in violation of Section 559.72(4); and whether Laughlin’s former counsel provided notice of representation to Phillips, after which representatives of Phillips contracted Laughlin in violation of Section 559.72(18). Further, there is conflicting testimony from Laughlin and Offenberger concerning whether Offenberger made abusive statements to Laughlin. It is the role of the trier of fact to hear the testimony of the various witnesses concerning these matters, assess the credibility of the witnesses, and determine whether the facts give rise to a violation of FCCPA.

Phillips argues that, even if it violated FCCPA, Laughlin has not incurred any damages and, thus, Phillips is entitled to summary judgment. We cannot agree. Section 559.77, Florida Statutes (2002), provides the civil remedies available for violations of the FCCPA. As the Supreme Court determined in Harris, 338 So.2d at 200, by enacting section 559.77, the Legislature intended to authorize actual damages, common-law punitive damages, and minimum statutory damages of $500. The Harris court explained the purpose of the statutory damages:

[T]he minimum award reasonably can be construed as providing a penalty designed to dissuade consumer collection agencies from engaging in the conduct proscribed, even where the legal standard of malice is not met.
* ⅜ ⅜
[T]he minimum award afforded by the statute exhibits aspects of both liquidated and punitive damages. It clearly appears to have been the intent of the Legislature to provide a remedy for a class of injury where damages are difficult to prove and at the same time provide a penalty to dissuade parties ... from engaging in collection practices which may have been heretofore tolerated industry wide.

Accordingly, Laughlin is not required to prove actual damages, but only a violation of one of the prohibited practices in the FCCPA.

Phillips also asserts that Laughlin has not shown that the communications with Laughlin’s employer has affected her reputation and that, under Heard v. Mathis, 344 So.2d 651 (Fla. 1st DCA 1977), the section 559.72(5) claim cannot proceed. In Heard, this court determined that to bring a claim based on a violation of section 559.72(5), one must show: “(1) that there was a disclosure of information to a person other than a member of the debtor’s family, (2) that such person does not have a legitimate business need for the information, and (3) that such information has affected the debtor’s reputation.” Id. at 655. If the jury finds that Phillips contacted her supervisor and told her that Laugh-lin had committed credit card fraud, a reasonable juror could believe that Laugh-lin’s reputation has been affected. Whether or not this communication was the cause of the loss of her job does not dispose of the issue. Such a showing would only lead to a more concrete calculation of damages. As discussed above, by enacting section 559.77, the Legislature intended to provide statutory damages in an area where the amount of damages are difficult to calculate.

In sum, we find that issues of material fact exist. In light of these factual conflicts, we hold that summary judgment was erroneously entered in favor of Phillips and Offenberger.

AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings consistent with this opinion.

LEWIS, and ROBERTS, JJ., concur.

      . Section 559.72, Florida Statutes (2002), provides, in pertinent part:
      In collecting consumer debts, no person shall:

      (4) Communicate or threaten to communicate with a debtor’s employer prior to obtaining final judgment against the debtor, unless the debtor gives her or his permission in writing to contact her or his employer or acknowledges in writing the existence of the debt after the debt has been placed for collection, but this shall not prohibit a person from telling the debtor that her or his employer will be contacted if a final judgment is obtained;
      (5) Disclose to a person other than the debtor or her or his family information affecting the debtor's reputation, whether or not for credit worthiness, with knowledge or reason to know that the other person does not have a legitimate business need for the information or that the information is false;
      (7) Willfully communicate with the debtor or any member of her or his family with such frequency as can reasonably be expected to harass the debtor or her or his family, or willfully engage in other conduct which can reasonably be expected to abuse or harass the debtor or any member of her or his family;
      (10) Use a communication which simulates in any manner legal or judicial process or which gives the appearance of being authorized, issued or approved by a government, governmental agency, or attorney at law, when it is not;

      . Section 559.72(18), Florida Statutes (2002), provides:
      In collecting consumer debt, no person shall:
      (18) Communicate with a debtor if the person knows that the debtor is represented by an attorney with respect to such debt and has knowledge of, or can readily ascertain, such attorney's name and address, unless the debtor's attorney fails to respond within a reasonable period of time to a communication from the person, unless the debtor’s attorney consents to a direct communication with the debtor, or unless the debtor initiates the communication;

      . Section 559.72(8), provides:


author: BARFIELD, J.

text:
    Eric M. HOFFMAN, Appellant, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, Appellee.
    No. 1D06-2642.
    District Court of Appeal of Florida, First District.
    Nov. 20, 2007.

      Eric M. Hoffman, pro se, Appellant.
    Bill McCollum, Attorney General, Sean T. Garner and Daniel R. Burke, Assistant Attorneys General, Counsel for Department of Corrections, Tallahassee, for Ap-pellee.
   BARFIELD, J.

This is an appeal of an order denying a motion for relief from judgment under Florida Rule of Civil Procedure 1.540 which was filed by a prison inmate, Eric Hoffman. In his Rule 1.540 motion, Hoffman sought reissuance of an order denying his petition for writ of mandamus regarding gain time issues, so as to allow him to belatedly challenge that order and an order imposing a lien on his inmate trust account for the court fees related to the mandamus proceeding. The appellee has filed a motion to dismiss Hoffman’s initial briefipetition for writ of certiorari in which he raised, in addition to arguments challenging the order denying the Rule 1.540 motion, arguments challenging the order imposing the lien, the order denying the petition for writ of mandamus, and an order denying a motion for disqualification of the trial judge. We GRANT the appel-lee’s motion to dismiss in part, finding that Hoffman has not properly invoked this court’s jurisdiction as to the three orders, but DENY the motion to dismiss with respect to the order denying the Rule 1.540 motion.

The order denying the Rule 1.540 motion is appealable. See Clearwater Fed. Sav. & Loan Ass’n v. Sampson, 836 So.2d 78 (Fla.1976). This court has jurisdiction under Florida Rule of Appellate Procedure 9.130(a)(4) to review the order. See Galvez v. Ramos, 941 So.2d 475 (Fla. 3d DCA 2006). And Hoffman has properly invoked this court’s jurisdiction by timely filing a notice of appeal of the order denying his Rule 1.540 motion.

Review of the order is governed by this court’s very recent opinion in Hampton v. McDonough, 967 So.2d 317 (Fla. 1st DCA 2007), which found, in circumstances similar to those in the case at issue, that the mandamus proceeding in the circuit court was governed by the Florida Rules of Appellate Procedure, not the Florida Rules of Civil Procedure, and that the Rule 1.540 motion was therefore unavailable to the inmate. Treating Hampton’s motion as having been filed pursuant to Florida Rule of Appellate Procedure 9.330, the court found that it was untimely filed, and that the circuit court had therefore correctly denied the motion.

Likewise, treating Hoffman’s Rule 1.540 motion as having been filed pursuant to Florida Rule of Appellate Procedure 9.330, we find that it was untimely filed, and that the circuit court therefore correctly denied the motion. AFFIRMED.

BROWNING, C.J., and BENTON, J., concur.


author: PER CURIAM.

text:
    CHATHAM MANUFACTURING, CORP. Appellant, v. Christopher U. CATES, Appellee.
    No. 1D06-6057.
    District Court of Appeal of Florida, First District.
    Nov. 20, 2007.

      Frederick L. Bateman, Jr. of Bateman Harden, and D. Lance Langston, Tallahassee, for Appellant.
    Jerome Wayne Hoffman and Stephen H. Grimes of Holland & Knight, Tallahassee, for Appellee.
   PER CURIAM.

Chatham Manufacturing Corp. seeks review of a final order dismissing with prejudice its complaint against Christopher U. Cates, appellee, by which Chatham sought to obtain information pursuant to section 608.4101, Florida Statutes (2005), concerning the business affairs of CCH Associates, LLC, a Florida limited liability company in which Chatham and Cates were allegedly members; and sought damages for Cates’ alleged breach of the duty of care to CCH and its members pursuant to section 608.4225, Florida Statutes (2005). Because it is apparent from the record that, in granting Cates’ motion to dismiss, the trial court relied upon matters raised in the motion, but not contained within the four corners of the complaint, we reverse. See Varnes v. Dawkins, 624 So.2d 349 (Fla. 1st DCA 1993)(“In determining the sufficiency of the complaint, the trial court may not look beyond the four corners of the complaint, consider any affirmative defenses raised by the defendant, nor consider any evidence likely to be produced by either side.”).

REVERSED and REMANDED for further proceedings consistent with this opinion.

ALLEN, WEBSTER, and VAN NORTWICK, JJ., concur.


author: GREEN, J.

text:
    Osinachi NWOSU, a minor, by and through her father and next friend, Musa IBRAHIM, Appellant, v. Moshe ADLER, M.D., Pediatric Associates, P.A., Kelson Physician Partners, Inc., Kelson Physician Partners of S.E. Florida, Inc., and Roseline Zephirin, Appellees.
    No. 4D07-686.
    District Court of Appeal of Florida, Fourth District.
    Nov. 21, 2007.

      Law Offices of William C. Ruggiero, Ft. Lauderdale; Law Offices of Jeffrey H. Wolfson, Ft. Lauderdale; Alters, Boldt, Brown, Rash & Culmo, P.A., and Kimberly L. Boldt, and Beth Vogelsang, Boca Raton, for appellant.
    Adams, Coogler, Watson, Merkel, Barry & Kellner, P.A., and Jodi G. Barrett, and Peter A. Cooke, West Palm Beach, for appellees.
    Before GREEN, CORTIÑAS, and SALTER, Associate Judges.
   GREEN, J.

Osinachi Nwosu appeals an order dismissing her medical malpractice complaint with prejudice. The trial court found that the National Childhood Vaccine Injury Compensation Act (‘Vaccine Act” or “Act”), 42 U.S.C. §§ 300aa-1 to -34 (2007), barred the action in state court. We reverse based upon our conclusion that this cause of action does not come within the purview of the Act.

According to well-pled allegations of the complaint, Nwosu, who was one-and-a-half years old at the time of the incident, visited her pediatrician for treatment. This treatment included the administration of certain immunizations. The doctor negligently injected the needle into her buttocks causing nerve damage to the sciatic nerve and leading to permanent injury to her leg.

Nwosu’s father filed a medical malpractice action against Nwosu’s treating physician and employer. The complaint alleged that the defendants had negligently administered the DT, DTP and DtaP 4 vaccines to the infant, causing damage to her leg. Defendants’ motion to dismiss the complaint, for failure to follow the administrative procedures in the Vaccine Act, was granted. An Amended Complaint was also dismissed on this basis.

Nwosu filed a Second Amended Complaint omitting any reference to the vaccination. Instead, the Second Amended Complaint alleged that the plaintiff sought medical care and treatment from the defendants, “which included injections,” and that defendants “failed to provide [Nwosu] with the appropriate medical care and treatment by injecting the plaintiff and hitting a nerve in her leg.” The defendants’ motion to dismiss this complaint on the same basis was granted and the complaint was dismissed with prejudice. Nwo-su filed the instant appeal.

The issue in this appeal is whether the Second Amended Complaint presents a “vaccine-related injury” as defined in the Vaccine Act, 42 U.S.C. § 300aa-33(5), which would bar the plaintiffs action in state court. We hold that it does not, and reverse the order dismissing the complaint.

Under the Vaccine Act, all persons having a vaccine-related injury or death associated with the administration of a vaccine are required to file a claim with the United States Court of Federal Claims. 42 U.S.C. §§ 300aa-11(a)(1), -11(a)(2)(A), - 12(a) (2007); Shalala v. Whitecotton, 514 U.S. 268, 115 S.Ct. 1477, 131 L.Ed.2d 374 (1995). The recovery scheme created by the Act is intended to work faster and with greater ease than the traditional civil tort system. Shalala, 514 U.S. 268, 115 S.Ct. 1477, 131 L.Ed.2d 374. Administrative remedies under the Act must be exhausted prior to bringing a civil action in state court. Aull v. Sec’y, Dep’t. of Health & Human Servs., 65 Fed.Cl. 400 (2005). These claims, however, are limited to “vaccine-related injuries.” The issue in our case turns on whether, as alleged in Nwo-su’s Second Amended Complaint, Nwosu suffered such an injury as contemplated under the Act. In deciding this issue, we are required to apply federal law. Shadie v. Aventis Pasteur Inc., 254 F.Supp.2d 509, 517 (M.D.Pa.2003) (citing Demos v. Aventis Pasteur, No. 01-04504-CIV, slip op. at 16 (S.D.Fla. Mar. 21, 2002)).

The Vaccine Act itself defines “vaccine related injury” as “an illness, injury, condition, or death associated with one or more of the vaccines set forth in the Vaccine Injury Tablet.]” 42 U.S.C. § 300aa-33(5) (2007). There is no doubt that the vaccine administered to Nwosu is listed in the Vaccine Injury Table. 42 U.S.C. § 300aa-14(a)I (2007). However, it is equally clear that she is not suing for a harm listed in that table. The question then becomes whether the type of harm she suffered, as alleged in her Second Amended Complaint, is the type of harm contemplated by the Act for which the Act requires Nwosu to file her claim in the Court of Federal Claims. A review of the federal caselaw addressing the issue demonstrates that she did not.

The defendants admit that Nwosu has suffered neurological injury, and admit that the Second Amended Complaint does not reference the type of inoculant contained in the vaccination Nwosu received. It is apparent that the gravamen of the cause of action is not the liquid contained in the vaccine, but rather the method by which the needle was inserted.

Federal courts have held that for a plaintiffs action to fall within the ambit of the Act, the vaccination must be a substantial factor causing the harm. Shyface v. Sec’y of Health & Human Servs., 165 F.3d 1344, 1352 (Fed.Cir.1999)(undisputed facts show DPT vaccination was a substantial factor contributing to death). The injury must flow from the administered inoculant contained in the injection.

In Amendola v. Sec’y, Dep’t. of Health & Human Servs., 989 F.2d 1180, 1186-87 (Fed.Cir.1993), the court examined the meaning of “vaccine-related” injury and determined that “a situation in which the direct cause of the injury was a contaminated needle, or the doctor’s negligent dropping of an infant patient, or other negligence facially unrelated to the vaccine’s effects,” did not present a vaccine-related injury that would compel the claimant to proceed under the Act. Amendola explained that “if the negligent action of the doctor which caused the injury was not vaccine-related, then there would be no eligibility for compensation under the Act as a result of that injury.” Id. at 1187 n. 8.

Examining the Amendola court’s warning that unrelated vaccine injuries do not fall under the Act, the court in Aull v. Sec’y of Health & Human Servs., 65 Fed. Cl. 400 (2005), determined that such a conclusion fostered the purpose of the Act. Permitting a civil action against a physician for improper placement of a vaccination “in no way jeopardizes the continued supply of the vaccine or the willingness of doctors to administer a vaccine. Even a suit for negligence directly associated with administration of the vaccine, e.g., using a contaminated needle, could nevertheless proceed without offense to the Act because the negligence is ‘facially unrelated to the vaccine’s effects.’ ” Aull, 65 Fed.Cl. at 405 (citing Amendola, 989 F.2d at 1186-87).

We conclude that based upon the reasoning in Amendola and Aull, the claims raised in Nwosu’s Second Amended Complaint are not associated with the physical effects of the vaccine, as that noun is used in the Act. It is true that had the child not been vaccinated, she would not have been injured. However, her injury as alleged, does not flow from the inoculant injected into her body — it is not the type of injury covered under the Act. Amendola, 989 F.2d 1180; Aull, 65 Fed.Cl. 400. Hence, the Act does not bar her action in state court, and the order dismissing, the Second Amended Complaint must be reversed.

Based on the foregoing, we reverse the order dismissing Nwosu’s complaint with prejudice and remand with instructions to reinstate same.

Reversed and remanded.

      . In reviewing an order granting a motion to dismiss a complaint, we are constrained by consideration only of the facts within the "four corners of the complaint.” Chodorow v. Porto Vita, Ltd., 954 So.2d 1240, 1242 (Fla. 3d DCA 2007).

      . The Act contemplates several exceptions for adulterants or contaminants added to the vaccine, 42 U.S.C. § 300aa-33(5) (2007), but this is not an issue in this case.

      .In fact, vaccine, a noun, is defined as a preparation of killed microorganisms that is administered to produce or artificially increase immunity to a particular disease. Webster’s Third New International Dictionary 2527 (1986). The definition does not address the method by which the inoculant is administered.


text:
    TANDEM HEALTHCARE, INC., a foreign Corporation d/b/a Tandem Healthcare of West Palm Beach, Inc., a Florida Corporation, Petitioner, v. Jodi BENJAMIN as Personal Representative of the Estate of Marlene Gagnon, Deceased, Respondent.
    No. 4D07-949.
    District Court of Appeal of Florida, Fourth District.
    Nov. 21, 2007.

      John A. Brekka, Jr., of Quintamos, Prie-to, Wood & Boyer, P.A., Fort Lauderdale, for petitioner.
    Jane Kreusler-Walsh and Rebecca Merrier Vargas of Kreusler-Walsh, Compiani & Vargas, P.A., West Palm Beach, and Jeffrey M. Fenster and Stacie L. Cohen of Fenster & Faerber, P.A., Plantation, for respondent.
    Jonathan S. Grout and Karen L. Goldsmith of Goldsmith, Grout & Lewis, P.A., Winter Park, for Amicus Curiae Florida Health Care Association.
    Philip M. Burlington of Burlington & Rockenbach, P.A., West Palm Beach, for Amicus Curiae Florida Justice Association.
   PER CURIAM.

Tandem Healthcare, Inc., a nursing home, seeks certiorari review of an order compelling the production of materials. It is undisputed that the materials would be privileged but for the trial court’s conclusion that discovery from nursing homes is included under the terms of Article X, section 25 of the Florida Constitution, (Amendment 7) We conclude that Amendment 7 does not cover production of privileged documents from a nursing home and grant the petition.

Jodi Benjamin, as personal representative of the estate of Marlene Gagnon, sued Tandem for negligence resulting in the death of Gagnon, a patient at the home. Gagnon suffered cardiac failure and brain damage when food became lodged in her airway. Benjamin requested that Tandem produce “all reports or records of any ‘Adverse Medical Incident’ ” involving Gagnon, as provided by Article X, section 25, of the Florida Constitution. She also requested peer review documents and quality assurance records.

Amendment 7 gives “patients” the right to access records of adverse “medical incidents” in the hands of “health care providers” and “health care facilities.” Unless Amendment 7 applies, the documents in question are protected from discovery by section 400.119, Florida Statutes (2006) (providing for confidentiality of incident reports) and section 400.147 (pertaining to internal risk management and quality assurance programs, including provisions making adverse incident reports confidential and not admissible or discoverable). See 1620 Health Partners, L.C. v. Fluitt, 830 So.2d 935 (Fla. 4th DCA 2002).

Amendment 7 was directed toward claims for medical malpractice. Nursing home claims under chapter 400, Florida Statutes, however, do not constitute claims of medical malpractice. § 400.023(7), Fla. Stat. (“An action under this part for a violation of rights or negligence recognized herein is not a claim for medical malpractice, and the provisions of section 768.21(8) do not apply to a claim alleging death of the resident.”); Integrated Health Care Servs., Inc. v. Lang-Redway, 840 So.2d 974 (Fla.2002); Weinstock v. Groth, 629 So.2d 835 (Fla.1993).

Amendment 7 does not'expressly define “health care facility” or “health care provider.” We conclude that nursing homes are not health care facilities or health care providers for the purpose of applying this amendment. The amendment applies to “patients,” but nursing home occupants are referred to in chapter 400 as “residents,” not as patients. See Avante Villa at Jacksonville Beach, Inc. v. Breidert, 958 So.2d 1031 (Fla. 1st DCA 2007).

The petitioner in Avante Villa was a nursing home, and the order on review, as in this case, compelled discovery of documents which the nursing home claimed were privileged. The district court concluded that the nursing home was not subject to the amendment. Id. at 1032.

The district court focused on the following language of Article X, section 25: “The phrases ‘health care facility’ and ‘health care provider’ have the meaning given in general law related to a patient’s rights and responsibilities.” Art. X, § 25(c)(1), Fla. Const, (emphasis added). It noted that while there are provisions of general law that include nursing homes within the meaning of “health care facility” or “health care provider,” only one statute deals with “a- patient’s rights and responsibilities,” and that statute was section 381.026, enacted in 1991. That was the only statute using that language at the time Amendment 7 was adopted. The court, therefore, concluded that “the specific language in Amendment 7 requiring that the definition be ‘related to a patient’s rights and responsibilities’ can be reasonably interpreted as adopting the definitions used in the Florida Patient’s Bill of Rights and Responsibilities.” Id. at 1033.

The First District found further support for this conclusion by referring to the definitions of health care facility and health care provider found in section 381.028(3), enacted in 2005 to codify Amendment 7.-The First District concluded Qiat the trial court should have applied the statutory definitions to find nursing homes were not included in the meaning of the provision. However, it also certified to the supreme court, as a question of great public importance, the following question:

WHETHER “NURSING HOMES” OR “SKILLED NURSING FACILITIES” FALL WITHIN THE DEFINITION OF “HEALTH CARE'FACILITY” OR “HEALTH CARE PROVIDER” AS CONTEMPLATED BY AMENDMENT 7 TO THE FLORIDA CONSTITUTION?

Id. at 1034.

We recognize that nurses are health care providers for purposes of the Medical Malpractice Act. §§ 766.1115(3)(d)8, 766.1116(1), & 766.202(4), Fla. Stat. (2004). A number of other general laws define health care facilities as including nursing homes; for example, those pertaining to the Health Facility and Services Development Act, sections 408.031-.045, Florida Statutes: section 408.032(8) (“ ‘Health care facility’ means a ... skilled nursing facility .... ”); and section 408.033(2)(a) (providing for funding for local health councils). Obviously, nursing homes are health care facilities for some purposes. Nevertheless, we reject the argument that nursing homes are health care facilities for purposes of applying Amendment 7.

A plain reading of the amendment reflects its reference to section 381.026 by its name, “The Florida Patient’s Bill of Rights and Responsibilities,” when it defined the terms “health care provider” and “health care facility” by “the general law related to a patient’s rights and responsibilities” (emphasis added). We note that both of those terms are specifically defined in that statute.

It may well be that there is substantial social benefit in recognizing freedom of information over a nursing home’s privilege with respect to health care matters generally, and that the purpose of the voters adopting the amendment would be well served by applying the amendment to privileged incident reports in any health-related context, including those prepared in a nursing home. However, although there are many definitions of the terms “health care provider” and “health care facility” scattered throughout the Florida Statutes, only one was incorporated into the amendment by reference. We conclude that Avante Villa was correctly decided and certify to the supreme court the same question certified by the First District in that case.

We grant the petition and quash the trial court order.

STONE, WARNER and MAY, JJ„ concur.

      . Article X, section 25 was placed on the ballot as Amendment 7 and, thus, is commonly referred to as Amendment 7. It is also referred to as the "Patients’ Right To Know Amendment."

      . A search of the supreme court's online docket finds no case pending there originating from Avante Villa, and a search of the First District’s online docket does not show anything indicating that further review was being sought in the supreme court.


author: GROSS, J.

text:
    Kandice K. FRANCAVILLA, Appellant, v. John FRANCAVILLA, Appellee.
    No. 4D06-2128.
    District Court of Appeal of Florida, Fourth District.
    Nov. 21, 2007.
    Rehearing Denied Dec. 26, 2007.

      Roslyn L. Stevenson of Roslyn L. Stevenson, P.A., Hollywood, for appellant.
    Nancy A. Hass of Nancy A. Hass, P.A., Hallandale Beach, for appellee.
   GROSS, J.

In a divorce case which the trial court characterized as being “about getting money and keeping money,” we address the wife’s attacks on a prenuptial agreement and on a ruling that certain real property was not gifted to the wife. We affirm the trial court’s judgment enforcing the prenuptial agreement and making equitable distribution according to its terms.

There was much conflicting testimony at trial. The circuit court resolved most conflicts in the husband’s favor. The “ ‘findings of the trial court come to this court clothed with a presumption of correctness and will not be disturbed absent a showing that there was no competent evidence to sustain them.’ ” Waton v. Waton, 887 So.2d 419, 422 (Fla. 4th DCA 2004) (quoting Baker v. Baker, 394 So.2d 465, 468 (Fla. 4th DCA 1981)). We therefore “take the facts most favorably in support of the trial court’s decision.” Waton, 887 So.2d at 422.

The parties had a choppy relationship. They married twice. The first marriage occurred within weeks of their first meeting in 1982. They moved to Georgia for the husband to attend chiropractic school. The wife left the husband in 1984 “because of the financial burdens of student life.” The first marriage ended in divorce.

Three years after the divorce, the couple resumed living together. The wife left the husband again to move in with another man in the same apartment complex.

At the end of 1992, the wife learned from her father where the husband was practicing. She scheduled an appointment with him, complaining of a pinched nerve. They quickly began dating. The wife became pregnant within a month. The couple then contemplated remarriage.

Because of their rocky history, the husband insisted, from the outset of the marriage discussions, that the wife enter into a prenuptial agreement as a “precondition to his marrying her.” He told her, “Kandiee, you broke my heart twice but you’re not going to take my money.” The parties negotiated the terms of the agreement for three or four months. The wife retained a lawyer recommended by her close friend. Two months before the marriage, the husband’s tax attorney provided the wife with a financial statement and tax returns for the preceding two years; he told the wife to take the documents to her lawyer for his review, but she “took no steps to have the disclosure or the tax returns reviewed by counsel or an accountant.” The wife knew that the husband was worth between $1.6 and $2.5 million. The trial judge found that the disclosures “adequately apprised” the wife of the husband’s “financial condition at the time of the parties’ marriage.”

Between themselves, the parties negotiated the amount of alimony and the term over which it would be paid. The wife’s attorney prepared the prenuptial agreement ultimately signed by the parties. The wife met with her attorney at least twice to go over the terms of the agreement. Three or four days before the wedding, the wife and the husband negotiated two changes to the agreement, including a cost of living increase as to alimony. Less than an hour after signing the prenuptial agreement, the parties married.

Concerning alimony, regardless of the length of the marriage, the agreement provided that the wife was entitled to

$1,250 per month on the first of each and every month for a period of five (5) years after the youngest child reaches the age of eighteen (18). For example, if a Final Judgment of Dissolution of Marriage was entered one day after the youngest child was born, Wife would be entitled to alimony for twenty-three (28) years at the rate of $1,250 per month payable on the first of each and every month, with an annual cost of living increase until wife remarries. (Handwritten portion of agreement in italics).

As to equitable distribution, the agreement provided that after ten years of marriage the wife would be entitled to 10% of the husband’s “total net worth,” including both marital and non-marital assets. For each year of marriage beyond ten years, the wife would be entitled to receive an additional 1% of the husband’s “total net worth.”

The wife first contends that the prenuptial agreement should be set aside because it was the product of duress. A spouse may set aside a prenuptial agreement by “establishing that it was reached under fraud, deceit, duress, coercion, misrepresentation, or overreaching.” Casto v. Casto, 508 So.2d 330, 333 (Fla.1987). As the wife points out, duress “is a condition of mind produced by an improper external pressure or influence that practically destroys the free agency of a party and causes him to do an act or make a contract not of his own volition.” Williams v. Williams, 939 So.2d 1154, 1157 (Fla. 2d DCA 2006) (quoting Herald v. Hardin, 95 Fla. 889, 116 So. 863, 864 (1928)). Two factors must be proven to establish duress: “(a) that the act sought to be set aside was effected involuntarily and thus not as an exercise of free choice or will and (b) that this condition of mind was caused by some improper and coercive conduct of the opposite side.” City of Miami v. Kory, 394 So.2d 494, 497 (Fla. 3d DCA 1981). Duress involves a “dual concept of external pressure and internal surrender or loss of volition in response to outside compulsion.” Id. (citing 17 C.J.S. Contracts, s. 168 at 943 (1963)).

The wife finds duress in the following facts: she was seven months pregnant at the time the agreement was signed, her pregnancy forced her to leave her job as a flight attendant, and the agreement was not signed until an hour before the wedding ceremony.

Focusing on the entire prenuptial negotiations, and not just on the endgame, leads to the conclusion that competent, substantial evidence supports the trial court’s decision finding that there was no duress.

The prenuptial negotiations stretched over some months. See Waton, 887 So.2d at 421. The husband properly disclosed the extent of his assets. The husband and wife went back and forth over the terms. The wife used the services of an attorney who drafted the agreement. After the agreement was drafted, the wife negotiated a favorable cost of living increase reflected in the handwritten changes. See Herrera v. Herrera, 895 So.2d 1171, 1175 (Fla. 3d DCA 2005). Other facts softened the coercive effect of the pregnancy on the wife, but we see no reason to air them in a public document. The husband’s ultimatum that he would not marry the wife without a prenuptial agreement does not constitute duress because there is nothing improper about taking such a position. See Doig v. Doig, 787 So.2d 100, 102 (Fla. 2d DCA 2001); Eager v. Eager, 696 So.2d 1235, 1236 (Fla. 3d DCA 1997)(where the court wrote that “[i]t is not a threat or duress for the proponent of the agreement to make it clear that there will be no marriage in the absence of the agreement.”).

This case lacks the time pressure aspects of cases finding duress like Hjortaas v. McCabe, 656 So.2d 168, 170 (Fla. 2d DCA 1995), where the wife was first presented with a prenuptial agreement two days before the wedding, with no financial disclosure, and she faced the choice of signing the agreement or cancelling the wedding. Here, the parties negotiated the prenuptial agreement for months with attorneys, counterproposals, and fair financial disclosure by the husband. The wife did not first confront a prenuptial agreement with a planned wedding ceremony and reception looming; the couple married at the courthouse, an event that could have been postponed with limited stress if further negotiations were needed. This case presents a less egregious fact pattern for duress than Waton, where we rejected a claim that duress invalidated a prenuptial agreement; Waton pointed out that the wife received the agreement two weeks before the wedding, the husband told the wife about the terms of the agreement before its preparation, and the husband made a list of his assets and showed the list to the wife before contacting a lawyer to draft the agreement. 887 So.2d at 422.

The wife next argues that the prenuptial agreement should be set aside under the second ground in Casto. To prevail on this ground, “the challenging spouse must establish that the [prenuptial] agreement makes an unfair or unreasonable provision for that spouse, given the circumstances of the parties.” Casto, 508 So.2d at 333. As the supreme court explained the procedure,

[o]nce the claiming spouse establishes that the agreement is unreasonable, a presumption arises that there was either concealment by the defending spouse or a presumed lack of knowledge by the challenging spouse of the defending spouse’s finances at the time the agreement was reached. The burden then shifts to the defending spouse, who may rebut these presumptions by showing that there was either (a) a full, frank disclosure to the challenging spouse by the defending spouse before the signing of the agreement relative to the value of all the marital property[] and the income of the parties, or (b) a general and approximate knowledge by the challenging spouse of the character and extent of the marital property sufficient to obtain a value by reasonable means, as well as a general knowledge of the income of the parties. The test in this regard is the adequacy of the .challenging spouse’s knowledge at the time of the agreement and whether the challenging spouse is prejudiced by the lack of information.

Id.

The evidence supports the trial court’s ruling that the wife failed to make both showings under the second Casto ground.

First, at the time the prenuptial agreement was made, it did not make an “unfair or unreasonable provision” for the wife, “given the circumstances of the parties.” Casto, 508 So.2d at 333. When the agreement was signed in 1993, the wife was 33 and the husband was 31. From the husband’s standpoint, this was a high risk marriage; the wife had left him twice before. Nonetheless, the agreement provided for alimony even if the marriage was short. For example, if the marriage dissolved the day after the first child was born, the wife was entitled to 23 years of alimony at $1,250 per month with annual cost of living increases; $1,250 was one half of her monthly salary as a flight attendant. In addition, the wife was entitled to a $25,000 cash payment after the filing of a petition for dissolution of marriage but before she vacated the marital home. The agreement did not address child support, which would be based on the respective incomes of the parties.

In a short term marriage, the agreement favored the wife. Although alimony is usually reserved for longer marriages, the wife was entitled to receive up to 23 years of payments in addition to a cash payment that equaled ten months of her salary, regardless of the length of the marriage. In a short term marriage, it is unlikely that the wife’s share of marital assets would have exceeded what she received under the agreement. With the benefit of hindsight, the wife may have realized an equitable distribution that exceeded the payout called for in the prenuptial agreement, because the husband’s net worth increased to $5 million from $2.5 million over the ten-year marriage. However, had the husband not prospered, 10 percent of his total assets might have exceeded 50 percent of the couple’s marital assets. When measured by the 1993 circumstances of the parties, the prenuptial agreement took into account various risks and made reasonable provisions for the wife.

As to the second Casto showing, the evidence described above supported the finding that the husband fully and frankly disclosed his assets and income prior to the marriage.

The wife next challenges the trial court’s determination that the husband did not intend to make a gift to the wife of certain jointly titled real property. The testimony on this issue conflicted. The husband adamantly maintained that no gifts were intended, that he never discussed gifting any real property to the wife, and that he believed that the prenuptial agreement rendered the titling of the property irrelevant to equitable distribution in a divorce proceeding. The husband distinguished the real property from other purchases made during the marriage which he conceded to be gifts. The trial court chose to believe the husband. We cannot overturn this finding based on this record. See Marsh v. Marsh, 419 So.2d 629, 630 (Fla. 1982) (holding that where evidence conflicted as to whether wife intended to make gift of home to husband, “it is the responsibility of the trial court to evaluate the weight and credibility of that testimony and to arrive at a determination”); Cameron v. Cameron, 591 So.2d 275, 276 (Fla. 5th DCA 1991).

Finally, we reject the wife’s reading of the agreement that the annual cost of living alimony increase is to be measured from the date of the prenuptial agreement. The agreement describes the filing of a petition for dissolution as the trigger for the entitlement to alimony. The agreement contemplates that the first alimony payment will be $1,250, not $1,250 plus all annual cost of living increases since 1993.

Affirmed.

GUNTHER and WARNER, JJ., concur.

      . In this opinion, the portions of the facts in quotes are from the trial court’s findings of fact contained in a partial final judgment issued on February 16, 2005.

      . Although Casto involved a postnuptial agreement, the case is also "controlling as to pre-nuptial agreements." Waton v. Waton, 887 So.2d 419, 423 n. 1 (Fla. 4th DCA 2004).

      . As we have pointed out in Footnote 2, Casto applies to prenuptial agreements, where the disclosure required is of premarital property.


text:
    FLORIDA DEPARTMENT OF FINANCIAL SERVICES, Appellant, v. CAPITAL COLLATERAL REGIONAL COUNSEL-MIDDLE REGION and John W. Jennings, Appellee.
    No. 1D07-0253.
    District Court of Appeal of Florida, First District.
    Nov. 26, 2007.

      Richard T. Donelan, Jr., Chief Counsel, Department of Financial Services, Tallahassee, for Appellant.
    Peter J. Cannon, Tampa, for Appellee.
   PER CURIAM.

The Department of Financial Services (hereinafter “Department”) challenges an order of the ALJ finding that the Department applied an agency rule without first initiating the proper rulemaking procedures. Because the ALJ erred in finding that the Department had a “rule” placing the offices of the Capital Collateral Regional Counsel in the executive branch, the order finding an invalid, unpromulgated rule is reversed.

I. Background

This case arose as the direct result of an investigation conducted by the Office of Fiscal Integrity (“OFI”) of the Division of Accounting and Auditing of the Appellant State of Florida Department of Financial Services. In late 2004 and early 2005, the Department received several “whistleblower” complaints which included allegations of improper spending practices on the part of Neal Dupree, the occupant of the State of Florida’s Office of Capital Collateral Regional Counsel-South. The Office of Capital Collateral Regional Counsel-South (“CCRC-S”), is one of the State’s two regional offices of capital collateral counsel authorized by Chapter 27, Part IV, Florida Statutes; the other is the Appellee Office of Capital Collateral Regional Counsel-Middle (“CCRC-M”), headed by Appellee John W. “Bill” Jennings, the Capital Collateral Regional Counsel for the Middle Region. The CCRCs provide collateral lé-gal representation for persons sentenced to death. See § 27.702(1), Fla. Stat. (2006).

In March of 2005, OFI initiated an investigation of certain allegations presented in the complaints that identified possibly questionable spending by Dupree. Ultimately, on August 29, 2006, a document entitled “Report of Investigation: Neal Dupree, Capital Collateral Regional Counsel, South Office, Case Number IV-20050400001” was issued by the Department’s Division of Accounting and Auditing, Office of Fiscal Integrity (“the Horn Report”). The Horn Report’s primary focus was CCRC-S Dupree. The investigation confirmed allegations that Mr. Dupree hired outside lobbyists with state funds to represent his office. In the course of their investigation of state spending by Dupree on lobbyists, OFI investigators happened to discover that Mr. Dupree and Mr. Jennings acted in concert to pay the same lobbyist to represent the'CCRCs before the Florida Legislature. The Horn Re-' port recommended that the' Department of Financial Services legal staff initiate action against Dupree and Jennings to recover State of Florida funds that were inappropriately paid by them to lobbyists in violation of section 11.062, Florida Statutes. OFI’s recommendation was never acted upon by the Chief Financial Officer. No action to subtract funds from the salary of either Mr. Jennings or Mr. Dupree was ever commenced by the Department.

On September 19, 2007, a petition styled “Rule Challenge Petition Pursuant to 120.56(4)” was filed with the Division of Administrative Hearings. Identified as petitioners were the “Capital Collateral Regional Counsel-Middle Region” and “John W. ‘Bill’ Jennings, Capital Collateral Regional Counsel.” The petition alleged that the Florida Department of Financial Services had applied an unadopted and unwritten rule, as defined by section 120.52(15), Florida Statutes, declaring that CCRC-M and CCRC-S are executive branch agencies. The petition claimed that the office was a “legislative agency,” rather than an executive agency, and therefore section 11.062 did not apply to CCRC-M.

On January 11, 2007, after a hearing, the order on review was issued by the ALJ. The ALJ found that the Horn Report “expressed” what the order characterized as “the challenged construction of Section 11.062.” According to the order, the Department “construes Section 11.062 to mean that CCRC-MR is an executive agency” prohibited from “using public funds to lobby the legislative or executive branches of government.” The “challenged construction” was determined to be a rule because “[t]he agency statement of general applicability interprets and implements Section 11.062.” On January 12, 2007, the Department filed its Notice of Appeal.

II. Analysis

Assuming, without deciding, that appel-lees had standing to bring the unadopted rule challenge, we hold that the ALJ erred when it found the Department had a “rule” that CCRC-M is an executive agency.

A party who is substantially affected by an agency statement not adopted as a rule may file a petition asserting that the policy is invalid in violation of the rulemaking requirement of- 120.54(1)(a). “An unpromulgated rule constitutes an invalid exercise of delegated legislative authority and, therefore, is unenforceable.” Dep’t of Revenue of State of Fla. v. Vanjaria Enter., Inc., 675 So.2d 252, 255 (Fla. 5th DCA 1996). However, in order for appellees’ rule challenge to succeed, the evidence must show that the challenged agency statement constitutes a “rule.”' A rule is defined as follows:

‘Rule’ means each agency statement of general applicability that implements, interprets, or prescribes law or policy or describes the procedure or practice requirements of an agency and includes any form which imposes any requirement or solicits any information not specifically required by statute or by an existing rule.

§ 120.52(15), Fla. Stat. (2006). “An agency statement that either requires compliance, creates certain rights while adversely affecting others, or otherwise has the direct and consistent effect of law is a rule.” Vanjaria, 675 So.2d at 255. When deciding whether a challenged action constitutes a rule, a court analyzes the action’s general applicability, requirement of compliance, or direct and consistent effect of law. Volusia County Sch. Bd. v. Volusia Homes Builders Ass’n, Inc., 946 So.2d 1084, 1089 (Fla. 5th DCA 2006).

The Horn Report appears to be the focus of appellees’ contention below that the Department had an unpromulgated rule that CCRC-M was an executive branch agency. The statements contained in the Horn report do not amount to a rule. The statements were never self-executing or capable of granting or taking away rights of any person by its own terms. See Fla. State Univ. v. Dann, 400 So.2d 1304, 1305 (Fla. 1st DCA 1981). The Horn report merely represents a recommendation by OFI staff that legal action be instituted to collect funds spent in violation of section 11.062.

A recommendation which, standing alone, does not “require compliance, create certain rights while adversely affecting others, or otherwise have the direct and consistent effect of law,” does not constitute a rule. See Volusia Homes Builders, 946 So.2d at 1090. Neither the opinion of OFI that CCRC-M is an executive branch agency, nor the recommendation that action be taken against Mr. Jennings to recover funds used in violation of the anti-lobbying statute, affected any substantive rights of either CCRC-M or Mr. Jennings. As noted, no action was taken against either CCRC-M or Mr. Jennings based on the Department’s alleged “rule” that CCRC-M constituted an executive agency. The Department has not issued an Administrative Complaint or a Notice of Intended Agency Action seeking reimbursement for funds expended for the lobbyist. Cf. Reiff v. N.E. Fla. State Hosp., 710 So.2d 1030 (Fla. 1st DCA 1998) (enforcement of clinical privileges in hospital by-laws is an invalid rule); Vanjaria Enters. Inc., 675 So.2d at 255 (holding that enforcement of tax assessment procedure in training manual was an invalid rule). Some agencies routinely engage in investigations to determine whether someone has violated the law, for example, to evaluate the licensure of professionals. See, e.g., Spuza v. Dep’t of Health, 838 So.2d 676 (Fla. 2d DCA 2003) (involving AHCA investigation of doctor to determine if he was convicted of crime that “directly relates to the practice of medicine or to the ability to practice medicine”); Borrego v. Agency for Health Care Admin., 675 So.2d 666 (Fla. 1st DCA 1996) (same). However, merely conducting and reporting on an investigation does not amount to promulgating a rule which can be preemptively challenged prior to any attempt by an agency at enforcement. If the Department had tried to enforce the Horn Report’s recommendation, clearly the Department would have to allow a point of entry for Mr. Jennings, because at that point he would be personally affected. See, e.g., Capeletti Bros., Inc. v. Dep’t of Transp., 362 So.2d 346 (Fla. 1st DCA 1978) (“[A]n agency must grant affected parties a clear point of entry, within a specified time after some recognizable event in investigatory or other free-form proceedings, to formal or informal proceedings under Section 120.57”). An investigator’s recommendation that has not been acted upon is not a rule as that term is defined in the APA.

The ALJ also cited an “inter-agency communication” as evidence of the Department’s rule that the CCRC-M is an executive branch agency. The inter-agency communication was a legal memorandum prepared by Department legal counsel. The memo addressed whether CCRCs are executive branch agencies, to which section 11.062 would apply. The conclusion of the legal memorandum was that CCRC’s are executive branch agencies subject to the provisions of section 11.062. However, a legal memorandum prepared by an agency is specifically excluded from the definition of a rule. Section 120.52(15)(b) states that the term rule does not include: “Legal memoranda or opinions issued to an agency by the Attorney General or agency legal opinions pri- or to their use in connection with an agency action.” Id. (emphasis added). The memorandum was never “used in connection with an agency action,” as the Department never acted in any way on the memorandum, other than to cite it in the Horn Report, which itself was never acted upon. Therefore, the legal memorandum is specifically excluded from the definition of a rule. Furthermore, like the Horn Report, the legal memorandum does not “require compliance, create certain rights while adversely affecting others, or otherwise have the direct and consistent effect of law,” and thus does not constitute a rule. See Volusia Homes Builders, 946 So.2d at 1090.

The ALJ also found other evidence of the Department’s rule, including an “agency addressed memo” reminding state agencies not to use state funds for lobbying purposes, a letter from the Department to Mr. Jennings explaining that his payroll account had been “flagged” due to the investigation, and testimony from members of the Department as to their longstanding understanding of section 11.062. For the same reasons the Horn Report and the legal memorandum do not demonstrate the existence of a rule, we find that the other items do not demonstrate the existence of an unpromulgated, Department rule.

Conclusion

Because the ALJ erred in finding that the Department had a “rule” placing the CCRCs in the executive branch, the order finding an invalid, unpromulgated rule is REVERSED.

WOLF, KAHN, and POLSTON, JJ., concur.

      . Section 11.062 prohibits employees of executive, judicial, or quasi-judicial agencies from using state funds to lobby the legislature. It provides that any employee of such an agency who violates the section may have deducted from his or her salary the amount Of state moneys spent improperly.

      . Whether CCRC-M is an executive or legislative agency is not an issue on appeal and we express no opinion on the matter.