author: FULMER, CAROLYN K, Senior Judge.

text:
    Victoria Lynn BISHOP, Appellant, v. Todd Cameron BISHOP, Appellee.
    No. 2D09-4155.
    District Court of Appeal of Florida, Second District.
    Sept. 29, 2010.
    Rehearing Denied Nov. 23, 2010.

      Jeanie E. Hanna of Ware Law Group, P.A., Tampa, for Appellant.
    Arnold D. Levine and Robert H. Mackenzie of Levine, Hirseh, Segall, Mackenzie & Friedsam, P.A., Tampa, for Ap-pellee.
   FULMER, CAROLYN K, Senior Judge.

In this appeal from a final judgment of dissolution, the Wife, Victoria Bishop, challenges the trial court’s verbatim adoption of the Husband’s proposed final judgment, the “rotating parenting visitation schedule” specified in the final judgment, and the equitable distribution of assets and liabilities. We affirm those parts of the final judgment that dissolve the parties’ marriage. We reverse the remainder of the final judgment and remand for further proceedings.

Verbatim Adoption of Final Judgment

The final hearing in this dissolution was held on June 22 and 26, 2009. At the conclusion of the hearing, the parties agreed to submit proposed final judgments by e-mail. The trial court made no oral rulings and provided no direction to the parties regarding the findings and conclusions to be included in the proposed judgments. Therefore, the proposed judgments were drafted in a manner that represented only the opposing views of each party. One month after the final hearing, and without the benefit of a transcript of the hearing, the trial court adopted, verbatim, the final judgment submitted by the Husband, which consisted of seventeen pages of findings and conclusions of law together with the Husband’s proposed equitable distribution schedule and child support worksheet.

We recognize that the law in Florida does not prohibit the verbatim adoption of a judgment that has been proposed by a party. See M.D. v. Dep’t of Children & Family Servs., 924 So.2d 827, 830 (Fla. 2d DCA 2005). However, the adopted judgment “cannot substitute for a thoughtful and independent analysis of the facts, issues, and law by the trial judge.” See Perlow v. Berg-Perlow, 875 So.2d 383, 390 (Fla.2004). In M.D., this court announced “that we will reverse any judgment entered under circumstances that create an appearance that the judgment does not reflect the judge’s independent decision-making. However, the fact that the judgment was adopted from a proposal submitted by a party does not, standing alone, raise that possibility.” M.D., 924 So.2d at 831.

The Wife argues that the final judgment contains errors and omissions which create the appearance that the trial court did not engage in independent decision-making. We agree. Although we note only a few, the Wife enumerates approximately twenty errors, omissions, and irregularities to support her argument. For example, the Husband’s proposed judgment included a reduction in his child support payments based on a change to rotating custody. By the time the trial court signed the Husband’s proposed judgment, the commencement date specified for the reduced payment had passed. Because the trial court failed to change the date, the final judgment erroneously orders a child support reduction retroactive to a date prior to the change to rotating custody. The final judgment also inexplicably orders child support to be paid directly to the Wife contrary to section 61.13(l)(d)(3), Florida Statutes, which requires payments to be made through the Central Governmental Depository absent a request by both parties and a finding by the court that it is in the best interest of the child. Further, in the calculation of child support, the final judgment uses the Husband’s predicted future lower income rather than his current income but fails to use the Wife’s lower current income. No findings are set forth to explain this inconsistency.

As examples of the trial court’s failure to exercise independent decision-making in the equitable distribution schedule, the Wife notes that the final judgment omits the parties’ marital liability for 2008 income taxes, omits the $1400 which the Husband stipulated should be assessed against him for his cashing of a refund check intended for the Wife, and fails to assign responsibility for preparation of Qualified Domestic Relations Orders should they be necessary for the division of certain distributed retirement accounts.

The Husband concedes some of the errors and omissions cited by the Wife but defends the final judgment by arguing that the Wife’s proposed final judgment contained some of the same deficiencies now being challenged and that, therefore, the Wife either invited or did not preserve the errors. We reject this argument. Regardless of the contents of the parties’ proposed final judgments, the trial court is obligated to make rulings on all issues raised based on its own thoughtful and independent analysis of the facts, the evidence presented, and the law that applies. Perlow, 875 So.2d at 390. Because the instant record does not establish this independent analysis, we are compelled to reverse.

Serving as further examples that cast doubt on the independence of the trial court’s decision-making are the legal errors in the final judgment regarding custody and equitable distribution. However, these errors also require reversal for reasons beyond those addressed in Perlow.

Rotating Custody

Regarding the custody issue, the Wife argues that it was error for the trial court to order a rotating parenting schedule because there is a long-standing presumption in Florida that rotating custody is not in the best interest of the child and the trial court failed to address factors required to overcome that presumption. The Husband argues first that the Wife failed to assert the presumption in the trial court and has, therefore, waived this issue. Alternatively, he argues that the 2008 amendments to section 61.13 apply in this case and that those amendments were intended to remove any adverse distinction for rotating custody. We need not address the parties’ dispute about which version of the statute applies because under any version the record is devoid of evidence that would support a change in the parenting schedule in effect at the time of the final hearing. Of particular note is the fact that during the proceedings the parties reached a mediation agreement which included a stipulation to allow the mental health therapist who was counseling the children to recommend the Husband’s visitation schedule. At trial, the therapist recommended against expanding the visitation schedule that was in effect at the time of the final hearing. In fact, all of the evidence presented by both parties supports maintaining the parenting schedule in effect at the time of the final hearing. Therefore, we reverse the trial court’s rotating custody schedule and remand with directions to restore the schedule in effect at the time of the final hearing.

Equitable Distribution

The Wife asserts three errors in the trial court’s equitable distribution of assets and liabilities: (1) assignment to the Wife of $32,618 in depleted marital assets which she used for family expenses, (2) erroneous valuation of the marital home, and (3) imposition of an equalizing payment of $73,432 to be paid by the Wife to the Husband.

Depleted Assets

During the pendency of the dissolution proceeding, the Wife withdrew funds from her 401(k) account which she used in support of herself and her children. She testified that she used the funds for car and household repairs, purchase of household items, legal fees for a matter unrelated to the dissolution, and medical bills. The final judgment states, without any findings of fact, that the Wife “has wrongfully depleted marital assets” and that the “wrongful depletion of her Ryder 401(k) to the extent of $32,617.96 has been accounted for in the attached Equitable Distribution Schedule Exhibit A.”

As a general proposition, it is error to include assets in an equitable distribution scheme that have been diminished or dissipated during the dissolution proceedings .... [A]n exception to this general proposition exists when misconduct during the dissolution proceedings results in the dissipation of a marital asset. In that case, the misconduct may serve as a basis for assigning the dissipated asset to the spending spouse when calculating equitable distribution.
... [However], to include a dissipated asset in the equitable distribution scheme, there must be evidence of the spending spouse’s intentional dissipation or destruction of the asset, and the trial court must make a specific finding that the dissipation resulted from intentional misconduct.

Roth v. Roth, 973 So.2d 580, 584-85 (Fla. 2d DCA 2008) (citations omitted). Here, there is uncontradicted testimony that the depleted funds were used for marital expenses. And the trial court made no finding of misconduct with respect to the Wife’s use of the funds. Furthermore, the record reflects no evidence of misconduct. Therefore, it was error to assign the value of the depleted assets to the Wife.

Marital Home Valuation

The final judgment states that the marital home “has been valued as of June 29, 2009 by the Court.” It further states that the Husband’s September 12, 2008, appraisal valued the home at $380,000, and the Husband testified to this value at trial; the Wife’s first appraisal, dated February 21, 2008, valued the home at $365,000; the Wife’s second appraisal, dated January 29, 2009, valued the home at $340,000. However, the final judgment fails to specify a value for the home. Instead, the home appears as an asset in the equitable distribution schedule appended to the final judgment. In that schedule the home is listed at a value of $380,000. From our review of the record, we are unable to discern any evidence or rationale that would support a valuation of $380,000. The June 2009 valuation date identified in the final judgment is consistent with both parties’ request for a current valuation date. However, the most current appraisal in relation to this valuation date was the Wife’s January 2009 appraisal of $340,000 which reflected a four percent decline since the February 2008 appraisal. The record reveals no impeachment of this appraisal. Furthermore, this is the only appraisal that was presented by live testimony through an expert real estate appraiser. He explained his use of nine recent sales as comparables, two of which were in the same gated community as the marital home. He also explained the adjustments he made to arrive at his values.

We recognize that the Husband testified that in his opinion as an owner, the home should be valued at $380,000, which is the same value contained in an appraisal he obtained in September 2008. However, the Wife’s expert noted that the Husband’s appraisal does not identify the appraiser’s professional qualifications or state that he is a member of the appraisal institute. Further, the sales utilized were not recent, and no adjustments were made for the decline in the real estate market which, the expert testified, was continuing to decline at the time of trial. This record contains neither findings of fact nor competent substantial evidence to support the trial court’s valuation of the marital home, both of which are required by section 61.075(3). Therefore we reverse and remand for the trial court to conduct a further hearing to determine the valuation of the home as of the time of trial.

Equalizing Payment

The equitable distribution schedule appended to the final judgment contains a “cash equalizing payment” in the amount of $73,432 which is deducted from the Wife’s distribution and added to the Husband’s distribution. However, the final judgment contains no order or directive as to whether the payment is to be made in a lump sum or in installments. The Wife argues that the trial court abused its discretion in ordering an equalizing payment because she was awarded no liquid assets from which she could make the payment without substantially endangering her own economic status. We agree. A lump sum equalizing payment to accomplish equitable distribution “is properly awarded only when the evidence reflects a justification for such an award and the ability of the paying spouse to make the payment without substantially endangering his or her economic status.” Vigo v. Vigo, 15 So.3d 619, 622 (Fla. 3d DCA 2009) (internal quotation marks omitted). A review of the equitable distribution schedule reflects that the equalizing payment essentially resulted from the overvaluation of the marital home together with the assignment to the Wife of her depleted 401 (k) assets. Thus it appears that our reversal on the marital home valuation and the depleted assets assignment may eliminate the need for an equalizing payment. However, we note that even if these assets had been valued and assigned properly, neither would have provided the ability for the Wife to make the payment ordered.

Conclusion

We affirm those parts of the final judgment that dissolve the parties’ marriage. We reverse the remainder of the final judgment for the reasons set forth above and remand with directions that the trial court review the record and enter a final judgment consistent with this opinion, the evidence presented, and the applicable law. We stress that it is particularly important for the trial court to ensure that all statutory mandates are addressed and that all required findings of fact are made. Failure to do so precludes meaningful appellate review, thwarts proper enforcement of the final judgment by successor judges, and prolongs the time required for these parties to resolve their differences.

Reversed and remanded with directions.

ALTENBERND and WALLACE, JJ., Concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Samuel WELSH, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-4771.
    District Court of Appeal of Florida, Fourth District.
    Oct. 6, 2010.
    Rehearing Denied Dec. 6, 2010.
    Samuel Welsh, Crawfordville, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. The imposition of a lien under section 960.293(2)(b), Florida Statutes, is a civil matter, not a matter of criminal sentencing. See Goad v. Fla. Dep’t of Corr., 845 So.2d 880 (Fla.2003). Therefore, appellant is not entitled to seek correction of any deficiencies pursuant to Florida Rule of Criminal Procedure 3.800(a).

WARNER, POLEN and FARMER, JJ., concur.


text:
    John KOSZOLA, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-4225.
    District Court of Appeal of Florida, Fourth District.
    Oct. 13, 2010.
    Rehearing Denied Dec. 6, 2010.
    Carey Haughwout, Public Defender, and Dea Abramschmitt, Assistant Public Defender, West Palm Beach, and John Kosz-ola, Downers Grove, Illinois, appellant.
    Bill McCollum, Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Senior Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We affirm appellant’s judgment and sentence in this appeal, which was brought pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). However, we remand,for correction of the judgment of conviction to reflect that the battery conviction was pursuant to section 784.03(1), not section 784.08(1), Florida Statutes. The judgment and orders of probation should also be corrected to reflect that appellant was found guilty after a jury trial, not that he entered a plea of guilty.

Affirmed and remanded for correction of judgment and sentence.

WARNER, POLEN and LEVINE, JJ., concur.


author: COHEN, J.

text:
    JOHARY AVIATION, INC., Appellant, v. John TURAN and Mercedes Turan, Individually, Jordan Aero-Marine, Inc., and Jordan Klein, Sr., Individually, and as Trustee of the Jordan Klein Trust, Appellees.
    No. 5D09-2794.
    District Court of Appeal of Florida, Fifth District.
    Oct. 15, 2010.
    Rehearing Denied Nov. 18, 2010.
    Shannon McLin Carlyle and Christopher V. Carlyle of The Carlyle Appellate Law Firm, The Villages, for Appellant.
    R. Scott Cross of R. Scott Cross, P.A., Ocala, for Appellees, John Turan and Mercedes Turan.
    Brian W. Warwick and Janet R. Varnell of Varnell & Warwick, P.A., The Villages, for Appellees, Jordan Aero-Marine, Inc., and Jordan Klein, Sr., Individually, and as Trustee of The Jordan Klein Trust.
   COHEN, J.

Johary Aviation, Inc., appeals the denial of its motion to set aside default. We reverse. Initially, we reject the argument that Johary Aviation did not timely file its notice of appeal. See BMW Fin. Servs. NA, LLC v. Alger, 834 So.2d 408, 409 (Fla. 5th DCA 2003) (holding that denial of a motion to set aside default is not an ap-pealable non-final order); Shell v. Foulkes, 19 So.3d 438, 440 (Fla. 4th DCA 2009) (holding that “[a]n order merely entering a default without a consequent final judgment is not a final order.”); Trawick, Fla. Prac. & Proc., § 25:2 (2007 ed.) (default not a judgment). The notice of appeal was timely filed and this court has jurisdiction.

The trial court erred in denying the motion to set aside default because Johary Aviation filed a motion to dismiss and a motion for more definite statement before the default was entered. These motions precluded the entry of default. See Carder v. Pelican Cove West Homeowners Ass’n, Inc., 595 So.2d 174 (Fla. 5th DCA 1992); Abelson v. First Nationwide Bank, 545 So.2d 414 (Fla. 3d DCA 1989). Consequently, the order denying the motion to set aside default must be reversed and Johary Aviation given the chance to defend. See Dawkins, Inc. v. Huff, 836 So.2d 1062 (Fla. 5th DCA 2003) (recognizing that policy in this state is to liberally vacate defaults so disputes can be reached on their merits).

REVERSED AND REMANDED.

LAWSON and EVANDER, JJ., concur.

      . We also note that Johary Aviation appeared at the hearing on the motion for default through counsel and attempted to adopt a pleading filed by a co-defendant as its answer.


text:
    Paul L. HENDERSON, Petitioner, v. STATE of Florida, Respondent.
    No. 5D10-2689.
    District Court of Appeal of Florida, Fifth District.
    Oct. 15, 2010.
    Rehearing Denied Nov. 18, 2010.
    Paul L. Henderson, Lake City, pro se.
    No appearance for Respondent.
   PER CURIAM.

We elect to treat the petition for certio-rari as an appeal and affirm.

AFFIRMED.

PALMER, ORFINGER and JACOBUS, JJ., concur.


author: WARNER, J.

text:
    Elizabeth MARION, Appellant, v. CITY OF BOCA RATON, a Political Subdivision of the State of Florida, Appellee.
    No. 4D09-1710.
    District Court of Appeal of Florida, Fourth District.
    Oct. 20, 2010.

      James S. Usich of Law Offices of James S. Usich, P.A., Palmetto Bay, for appellant.
    Daniel L. Abbott and Laura K. Wendell of Weiss Serota Helfman Pastoriza Cole & Boniske, P.L., Coral Gables, for appellee.
   WARNER, J.

The trial court entered final summary judgment in favor of the City of Boca Raton in a negligent maintenance suit, finding no causation between the negligent maintenance of the City’s traffic light and the intersectional collision causing injury to the plaintiff. Because genuine issues of material fact remain, we reverse.

Appellant Elizabeth Marion was injured in a car accident while driving westbound on Glades Road in Boca Raton at its intersection with Renaissance Way. The intersection is a major one, Glades Road consisting of six lanes going west, two of which were turning lanes onto Renaissance Way. It is controlled by traffic lights. At the time of the accident, however, the traffic light was flashing yellow for traffic on Glades Road and flashing red for traffic on Renaissance Way. Marion started to slow down, hitting her brakes when she saw other cars to her left also braking. As she entered the intersection, she struck a vehicle driven by Catherine Wilson and owned by Lillian Petow, travelling north on Renaissance Way.

Marion sued Wilson, Petow, and the City of Boca Raton for negligence resulting in injuries to her. As to the City, she alleged that it had negligently maintained the traffic control device at the intersection in that the device had failed several times prior to the accident and the City had failed to make the necessary repairs. She further alleged that the failure to have a functioning traffic control device which stopped traffic on one street while the traffic on the other street proceeded was the proximate cause of the accident.

In deposition, the City Traffic Operation Engineer testified that when the traffic control devices at this intersection have a problem or fault, a conflict monitor defaults the traffic lights into flashing red for North/South traffic and flashing yellow for East/West traffic. The City had been called to the same intersection as a result of the traffic control devices going to flashing red and flashing yellow mode twice just prior to the accident. The first fault occurred the day before, and the second fault occurred earlier on the day of the accident. Each time, the City simply reset the light and did not change the monitor responsible for tripping the lights into flashing mode. No one determined why the fault occurred. After the accident, the City replaced the monitor.

The City filed a motion for summary judgment on issues of sovereign immunity, negligence and proximate cause. It contended: 1) the City’s planning decision to control intersections with traffic signals in safety mode was protected by sovereign immunity; 2) Marion could not establish that the City was negligent as the flashing traffic control was not defective; 3) Marion could not establish that the flashing light proximately caused the accident.

The trial court granted the motion for summary judgment on the third ground, ruling that the flashing traffic light was not a proximate cause of the accident. The court did not address the issue of sovereign immunity. Marion appeals from this order which completely resolved the complaint as to the City. Because the court granted summary judgment, our standard of review is de novo. See Husky Rose, Inc. v. Allstate Ins. Co., 19 So.3d 1085 (Fla. 4th DCA 2009). Although the court did not rule on sovereign immunity, the City makes an argument that its decision can be affirmed on this ground as well, to which Marion has responded. Therefore, we discuss all grounds raised for the entry of final summary judgment to explain why we reverse the trial court.

The City contends that it is entitled to sovereign immunity because its decision to control the intersection with a flashing light is a policy decision, not an operational one. We disagree.

Our supreme court established the contours of the waiver of sovereign immunity contained in section 768.28, Florida Statutes, in Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla.1979). It held that planning level decisions by the government continue to be immune, despite the statutory waiver; otherwise, in determining liability questions the judicial branch would encroach on the other branches of government in violation of the separation of powers. The statute did, however, waive immunity for operational decisions. The court explained, “Planning level functions are generally interpreted to be those requiring basic policy decisions, while operational level functions are those that implement policy.” Id. at 1021.

Commercial Carrier consolidated two separate cases on petition for certiorari to the supreme court to determine the issue. In one, Cheney v. Dade County, 353 So.2d 623 (Fla. 3d DCA 1977), a defendant in an intersection collision case filed a third party complaint against Dade County alleging that Dade County had negligently maintained a traffic light at the intersection, which negligence was the cause of the accident. After establishing the planning level/operational level dichotomy for waiver of immunity, the court applied it to Cheney and held that “[m]aintenanee of a traffic signal light which is in place does not fall within that category of governmental activity which involves broad policy or planning decisions. This is operational level activity.” 371 So.2d at 1022 (emphasis supplied).

The court again explained that maintenance of traffic control devices is an operational activity in Department of Transportation v. Neilson, 419 So.2d 1071, 1075 (Fla.1982):

Commercial Carrier established that discretionary, judgmental, planning-level decisions were immune from suit, but that operational-level decisions were not so immune. In applying these principles to the facts in that case, we held that the failure to properly maintain an existing traffic control device was an operational decision and suit could be filed against the governmental entity,

(emphasis in original). The court in Neil-son reaffirmed its position in Commercial Carrier that the failure to properly maintain existing traffic control devices may be the basis for a suit against a governmental entity. See also Perez v. Dep’t of Transp., 435 So.2d 830 (Fla.1983).

On the same day it issued Neilson, the court also decided City of St. Petersburg v. Collom, 419 So.2d 1082, 1086 (Fla.1982). The court expanded the duty of governmental entities to warn when the government creates a known dangerous condition. Acknowledging its decision in Neilson that planning level decisions of government should be immune, the court decided that there were activities of government which could lead to judicial scrutiny:

On the other hand, without substantially interfering with the governing powers of the coordinate branches, courts can require (1) the necessary warning or correction of a known dangerous condition; (2) the necessary and proper maintenance of existing improvements, as explained and illustrated in Commercial Carrier [citation omitted]; and (3) the proper construction or installation and design of the improvement plan, as explained in Neilson [citation omitted].

Id. at 1086. The court held

that when a governmental entity creates a known dangerous condition, which is not readily apparent to persons who could be injured by the condition, a duty at the operational-level arises to warn the public of, or protect the public from, the known danger. The failure to fulfill this operational-level duty is, therefore, a basis for an action against the governmental entity.

Id. at 1083 (first emphasis in original, second emphasis supplied). Thus, the government has both a duty to warn of dangerous conditions created by it, as well as the duty to properly maintain existing traffic control devices.

The court reiterated these principles in Palm Beach County Board of Commissioners v. Salas, 511 So.2d 544 (Fla.1987). In that case, county workers on a road realignment project blocked off a left turn lane in a busy intersection and deactivated the left turn signal. Although they provided orange cones, they did not erect any signs prohibiting left turns from the remaining lanes. Salas attempted a left turn from the right lane and was struck by another vehicle. The court ruled that the decision to block the left turn lane and deactivate the signal was an operational-level decision.

Although the county’s initial decision of whether to utilize a left turn signal was a planning-level decision, once that decision was made, the county’s later decision to deactivate that signal and block off the left turn lane for road maintenance was an operational-level decision. During the time its survey crew worked at the intersection ..., Palm Beach County had the duty to carry out its maintenance responsibilities in a non-negligent manner and to warn the motoring public of any known hazards that the presence of the survey crew and the accompanying deactivation and blocking of the turn lane created.... Sovereign immunity principles will not shield the county from liability if it failed to perform that duty adequately.

Id. at 546-47 (citations omitted).

In this case, the City exercised a planning level decision in designing the intersection at Glades Road and Renaissance Way and its traffic signal. As previously noted, this was a large intersection involving multiple lanes of traffic on Glades Road as well as the lanes on Renaissance Way. Our supreme court has accepted the proposition that every intersection may be inherently dangerous. See Dep’t of Transp. v. Konney, 587 So.2d 1292, 1295 (Fla.1991). Such a large intersection as present in this case would qualify as being inherently dangerous. The City installed traffic control devices providing red, yellow, and green lights for each road, as well as turning signals to ameliorate that danger. While the City maintains that the default to “safe mode” when the designed traffic control device malfunctions is part of the planning level decision, we conclude that the inclusion of the “safe mode” is merely the City’s method of providing a warning of a known dangerous condition when the planned traffic control device malfunctions. See Collom; Salas. As such, it fulfills an operational duty to warn, not a planning level decision. Were it otherwise, then a city could never be liable for failing to maintain existing traffic control devices, because its liability could be excused simply by providing default flashing lights even in intersections where increased signalization is required and in fact used by the city.

Marion’s complaint alleges the City failed to maintain an existing traffic control device which proximately caused her injuries. Based upon Commercial Carrier, Neilson, and Collom, the City has an operational duty to maintain existing traffic control devices and to warn of known hazards. The City is not immune for the negligent performance of these operational duties.

The operational duty of governments to properly maintain the traffic control devices and to warn of known hazards is analogous to the duty of a landowner to a business invitee. The landowner owes an invitee the duty (1) to maintain the premises in a reasonably safe condition, and (2) to give warning of concealed perils. See Pittman v. Volusia County 380 So.2d 1192 (Fla. 5th DCA 1980). A landowner is not absolved of the obligation to maintain the premises in a safe condition merely by giving warning of a dangerous condition. In Pittman the plaintiff slipped upon a foreign substance on the steps of a public building owned by Volusia County. While the plaintiff had actual knowledge of the substance on the steps, the county had only constructive knowledge of it but evidence showed that it had remained on the steps for six hours. The county asserted that the plaintiffs actual knowledge necessarily discharged its duty to maintain the premises by clearing the substance from the steps. In other words, the county argued that so long as the invitee knows of the danger, the landowner has no duty to keep the premises in good condition. The court noted that extending this obvious danger doctrine to bar all recovery by the plaintiff would be contrary to Hoffman v. Jones, 280 So.2d 431 (Fla.1973), adopting comparative negligence.

The court cited to Prosser for the proposition that a landowner may be required to provide more than a warning:

[I]t is so frequently held that reasonable care requires nothing more than a warning of the danger. But this is certainly not a fixed rule, and all of the circumstances must be taken into account. In any case where the occupier, as a reasonable man, should anticipate an unreasonable risk of harm to the invitee notwithstanding his knowledge, warning, or the obvious nature of the condition, something more in the way of precautions may be required....
It is true also where the condition is one such as icy steps, which cannot be negotiated with reasonable safety even though the invitee is fully aware of it, and because the premises are held open to him for his use, it is to be expected that he will nevertheless proceed to encounter it. In all such cases the jury may be permitted to find that obviousness, warning or even knowledge is not enough.’

Pittman, 380 So.2d at 1194 (quoting W. Prosser, Law of Torts § 61, at 394-95 (4th ed. 1971)). Finding that the obviousness of the foreign condition on the steps did not preclude a jury from considering the county’s negligence along with that of the plaintiff under comparative negligence principles, the Pittman court reversed a judgment in favor of the county. See also Passaro v. City of Sunrise, 415 So.2d 162 (Fla. 4th DCA1982).

These same principles apply to the liability of the City for the malfunctioning traffic light. The City had a duty to maintain its traffic control devices. The record does not conclusively refute the allegations that the City was negligent in failing to repair the malfunctioning device. In a space of thirty-six hours prior to the accident, the traffic control device malfunctioned three times, defaulting to the flashing mode. While the City maintains that the flashing yellow light did not malfunction, that is not the issue. The issue is whether the existing traffic control devices were maintained and functioning as designed by the City so as to control this large intersection. The fact that the light defaulted to “safe mode” shows that the traffic control lights were not functioning as they were intended. Whether the City employees who inspected the light and failed to test the monitor deviated from common practice is not revealed. Because the allegations of negligence are not conclusively refuted on the record, we must accept them for purposes of the motion for summary judgment.

The City had an obligation to warn when the traffic light malfunctioned. The flashing light may have constituted a warning, but it does not absolve the City of its obligation to maintain the traffic control device. See Salas. That warning does not bar Marion from recovering for the City’s negligence in failing to maintain the traffic control device under comparative negligence principles. See Pittman; Passaro. A jury should be entitled to consider both the City’s negligence and Marion’s comparative negligence in determining whether the City’s negligent failure to repair the traffic signal was a proximate cause of the accident.

The trial court ruled that the flashing yellow light was not the cause of the accident. However, as noted above, it is not the flashing mode which Marion alleged was the cause of her accident but the failure of the traffic signals to function as intended by the City in normal operation. Certainly, the failure to have an operable traffic signal at that intersection created a zone of risk posing a threat of harm to motorists willing to brave traversing it. See McCain v. Fla. Power Corp., 593 So.2d 500 (Fla.1992).

To the extent that the trial court may have believed that Wilson’s vehicle— which had the flashing red light — was a superseding intervening cause, that issue was one for the jury. See Goldberg v. Fla. Power & Light, 899 So.2d 1105 (Fla.2005). In Goldberg, FPL employees seeking to repair power lines inadvertently deactivated a traffic signal at an intersection. Two vehicles collided in the intersection, causing the death of one of the- passengers. While a jury found FPL liable, the Third District reversed, finding that the driver’s failure to treat the inoperable signal as a four way stop constituted an intervening superseding cause as a matter of law, relieving FPL of liability.

The supreme court disagreed, holding that FPL had created a zone of risk when its contractor inadvertently deactivated the traffic signal. Relying on Salas, the court concluded that the driver’s possible negligent entry into the intersection should have been a foreseeable consequence of having the traffic light out at the intersection. It did not relieve FPL of liability for its own negligence. Whether FPL was the proximate cause of the accident was a question of fact for the jury to determine. The negligence of the driver and the operator of the other vehicles involved in the collision could not be characterized as the sole intervening and superseding causes to relieve FPL, the original negligent actor, of all liability.

Applying Goldberg to the present case, the fact of the City’s negligence in failing to maintain the traffic control device in operational mode was not conclusively refuted on the record. That any driver entering such a large intersection, controlled by only flashing yellow in one direction and flashing red in the other direction, might proceed across the intersection and collide with another vehicle is surely foreseeable. The negligence of either or both drivers cannot be said to be intervening, superceding causes of the accident, relieving the City of any liability as a matter of law. The trial court erred in granting summary judgment.

In moving for summary judgment, the City strongly relied on Ferri v. City of Gainesville, 362 So.2d 345 (Fla. 1st DCA 1978). In that case, Mr. and Mrs. Ferri were killed at an intersection when a truck collided with the car in which they were riding. The traffic light at the intersection had become inoperable. The city, while attempting to repair it, had set the traffic light to flash a continuous red light in the direction Mr. Ferri was travelling, and a flashing yellow from the direction the truck was approaching. Mr. Ferri came to a complete stop, proceeded into the intersection in front of the truck, and both occupants were killed. Their estates sued the city, and the trial court dismissed the action for failure to state a cause of action. The First District affirmed, concluding that the traffic signal had provided a warning and that Mr. Ferri heeded the warning by coming to a complete stop prior to entering the intersection. The court concluded that, “A person does not have the right to require the city, county or the state to maintain any particular type of traffic light at a given time or place,” citing to Commercial Carrier.

Although at first blush the facts appear quite similar, we find Ferri both distinguishable on the facts and contrary to subsequent supreme court rulings. Ferri involves the duty to warn, not the duty to maintain the traffic control lights. The city was repairing the lights, and there is no indication that it was negligent in failing to maintain the lights, as there is in this case. Through the use of the flashing light, it fulfilled its duty to warn of the dangerous condition created by the disconnection of the traffic signal during repair. More importantly, Ferri preceded Neilson, Collom, and Salas. Its statement that the city did not have to “maintain” a particular type of traffic light at a given time and place is inconsistent with Neilson and Salas, as those cases place on the government an obligation to maintain existing traffic control devices. Once the government has established at the planning level the type of traffic control devices necessary for the roadway, it has a duty to carry out its maintenance of them in a non-negligent way.

For the foregoing reasons, we reverse the final summary judgment and remand for further proceedings.

Reversed and Remanded.

GROSS, C.J., and FISHMAN, JANE D., Associate Judge, concur.

      . Marion settled with Wilson and Petow.


text:
    Edwin Jose GARRIDO, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-4613.
    District Court of Appeal of Florida, Fourth District.
    Oct. 20, 2010.
    Rehearing Denied Dec. 7, 2010.
    Jeffrey H. Garland of Jeffrey H. Garland, P.A., Fort Pierce, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Farinas v. State, 569 So.2d 425, 429 n. 7 (Fla.1990) (“It is well-established law that where the trial judge has extended counsel an opportunity to cure any error, and counsel fails to take advantage of the opportunity, such error, if any, was invited and will not warrant reversal.”) (citation omitted).

GROSS, C.J., CIKLIN, J., and KEYSER, JANIS BRUSTARES, Associate Judge, concur.


author: EVANDER, J.

text:
    Edward K. SOWDEN, Jr. and Kathleen M. Sowden, etc., Appellant, v. Gregg Almirantes BREA, et al., Appellees.
    No. 5D09-1834.
    District Court of Appeal of Florida, Fifth District.
    Oct. 22, 2010.

      Hugh A. Davis, II, of Davis & Kirste, P.L., Leesburg, for Appellant.
    Shannon McLin Carlyle and Christopher Y. Carlyle, of The Carlyle Appellate Law Firm, The Villages, for Appellee.
   EVANDER, J.

Edward and Kathleen Sowden, the court-appointed guardians for Opal Simer Bailey, and their attorneys, David Yergey, Jr., and M. Meredith Kirste, appeal from orders striking Yergey’s and Kirste’s petitions to approve payment of their attorney’s fees and costs. Petitioners were seeking payments of these fees and costs from the trustee for the Opal Simer Bailey Irrevocable Trust, Gregg Almirantes Brea. The petitions were filed subsequent to Bailey’s death and the guardianship had insufficient funds to pay the requested fees and costs. Although the trial court had previously approved an agreement in which the trustee had agreed to pay certain attorney’s fees and costs incurred on behalf of the guardianship, the trial court concluded that it was not permitted to consider the petitions. Specifically, the court held that upon the ward’s death, the only proceedings authorized under section 744.527(1), Florida Statutes (2008), were the consideration of the guardians’ petition for discharge and any objections thereto. We reverse.

In November 2005, the Opal Simer Bailey Irrevocable Trust was established. On September 13, 2006, Bailey was adjudicated partially incapacitated and the Sowdens were appointed limited guardians of the person and plenary guardians of Bailey’s property.

After various disputes arose between the guardians, the trustee, and other interested persons, mediation was ordered. In November 2006, a mediation settlement agreement was reached, resolving then pending litigation matters and several other issues. Among other things, the trustee agreed to pay all the attorney’s fees and costs that had been incurred by the trust and the guardianship prior to the date of the agreement, as well as future attorney’s fees and costs incurred in the performance of certain specifically defined tasks. The trustee expressly consented to the guardians submitting the agreement to the guardianship court for its approval.

By order dated November 16, 2006, the trial court approved the mediation settlement agreement and ordered all parties to the agreement to comply with its terms and conditions. Approximately two years later, Bailey passed away. Yergey and Kirste subsequently filed their petitions to approve payment of attorney’s fees and costs. The guardians consented to payment, but the trustee objected. The trustee argued that the trial court lacked authority over the trustee and the trust assets. However, as discussed above, the basis of the trial court’s decision to strike the petitions was the belief that after the ward’s death, the court was limited to considering only the petition for discharge and any objections thereto. The trial court also concluded that the petitioners were not without remedy-they could bring an action to enforce the agreement “in any court of competent jurisdiction.”

A ward’s death does not prevent a trial court from enforcing orders previously entered in the guardianship case. Midland Nat’l Bank & Trust v. Comerica Trust Co. of Fla., N.A., 616 So.2d 1081 (Fla. 4th DCA 1993) (holding that viability of otherwise valid orders not dependent on whether ward is alive; sanctity of court orders deserves better than to be ipso facto rendered nullity by ward’s death). Here, the trial court had the authority to enforce its prior order requiring the parties to comply with the court-approved mediation settlement agreement.

We also reject the trustee’s contention that the trial court lacked jurisdiction over the trustee. Personal jurisdiction can be conferred by consent. Bush v. Schiavo, 871 So.2d 1012 (Fla. 2d DCA 2004). By entering into and benefitting from a mediation settlement agreement that (with the trustee’s concurrence) was court-approved in the guardianship proceeding, the trustee submitted to the jurisdiction of the court. Furthermore, in consideration of the benefits received by the trustee under the agreement, the trustee expressly agreed that trust assets could be utilized to pay certain attorney’s fees and costs incurred on behalf of the guardianship.

On remand, the trial court is to determine the amount of attorney’s fees and costs, if any, that the trustee is obligated to pay Yergey and Kirste pursuant to the terms of the mediation settlement agreement.

REVERSED and REMANDED.

LAWSON and COHEN, JJ., concur.

      . We have jurisdiction. See Fla. R.App. P. 9.110(a)(2).

      . Section 744.527(1) provides:
      When the court terminates the guardianship for any of the reasons set forth in s. 744.521, the guardian shall promptly file his or her final report. If the ward has died, the guardian must file a final report with the court no later than 45 days after he or she has been served with letters of administration or letters of curatorship. If no objections are filed and if it appears the guardian has made full and complete distribution to the person entitled and has otherwise faithfully discharged his or her duties, the court shall approve the final report. If objections are filed, the court shall conduct a hearing in the same manner as provided for a hearing on objections to annual guardianship reports.


author: BLACK, Judge.

text:
    In re FORFEITURE OF: 1992 PONTIAC FIREBIRD NO. 1G2FS23T3NL212004. Christopher E. Floyd, Appellant, v. State of Florida, on behalf of City of Haines City, for the use and benefit of the Haines City Police Department, Appellee.
    No. 2D09-3245.
    District Court of Appeal of Florida, Second District.
    Oct. 27, 2010.

      Christopher E. Floyd, pro se.
    Robin H. Stevenson, Bartow, for Appel-lee.
   BLACK, Judge.

Christopher E. Floyd appeals a final judgment of forfeiture ordering his 1992 Pontiac Firebird surrendered to the Haines City Police Department. Mr. Floyd raises three issues on appeal. We find merit in Mr. Floyd’s third argument and are compelled to reverse the final judgment of forfeiture. Because we find the third issue dispositive, we need not address Mr. Floyd’s first and second arguments.

In July 2008, the Haines City Police Department (HCPD) filed its initial verified complaint for probable cause and for final order of forfeiture, pursuant to the Florida Contraband Forfeiture Act (the Act), §§ 932.701-.706, Fla. Stat. (2008). The Act makes it unlawful to use a vehicle as an instrumentality in the commission of a felony. In its complaint, the HCPD identified Mr. Floyd’s 1992 Pontiac Firebird as the subject property of the action and then described, in detail, Mr. Floyd’s May 27, 2008, robbery of a SunTrust Bank in Haines City, Florida. The complaint identified the bank by name and location, the bank teller by name, the manner in which Mr. Floyd demanded money, and the amount of money stolen. It also provided a specific description of Mr. Floyd’s vehicle — a “late model dark green in color Jeep Cherokee.”

After entering its order finding probable cause, the trial court set the final hearing of forfeiture for February 16, 2009. On January 22, 2009, the HCPD filed its motion to amend the verified complaint and attached the proposed amended verified complaint. The amended complaint alleged that Mr. Floyd’s 1992 Pontiac Fire-bird was the subject of the action and that on April 16, 2008, the vehicle was used in the robbery of a Citizens Bank in Haines City, Florida. The amended complaint not only identified a new robbery date and location but also identified a different bank teller, described a different manner in which Mr. Floyd demanded money, identified a different amount of money stolen, and identified the Firebird as the vehicle used to flee the scene.

The trial court granted the HCPD’s motion to amend, finding that the claims in the amended complaint related back to those in the original complaint. The court found that the confusion between the robberies and vehicles stemmed from the fact that Mr. Floyd had robbed three banks in Haines City within a short period of time, switching vehicles in that time frame.

On appeal, Mr. Floyd argues that the trial court erred in finding that the amended verified complaint, properly identifying the Firebird as having been used in a robbery of the Citizens Bank in April 2008, related back to the date of the initial complaint for filing deadline purposes.

Section 932.704, entitled “Forfeiture proceedings,” provides in part: “The seizing agency shall promptly proceed against the contraband article by filing a complaint in the circuit court within the jurisdiction where the seizure or the offense occurred.” § 932.704(4). “ ‘Promptly proceed’ means to file the complaint within 45 days after seizure.” § 932.701(2)(c). Furthermore, in DeGregorio v. Balkwill, 853 So.2d 371, 374 (Fla.2003), the Florida Supreme Court held:

Because the statute here provides for the deprivation of a property right, its procedural requirements cannot be regarded as immaterial or a matter of mere convenience. We hold that the requirement in section 932.704(4) to “promptly proceed” with a forfeiture action is mandatory, and that under section 932.701(2)(c), “promptly proceed” means what it says: “to file the complaint within 45 days after seizure.”

Florida Rule of Civil Procedure 1.190(a) provides, in pertinent part, that “[l]eave of court [to amend pleadings] shall be given freely when justice so requires.” Florida courts generally follow a liberal policy with regard to the amendment of pleadings, in accordance with the rule, so that claims may be determined on their merits. Rule 1.190(c) addresses when an amended pleading will relate back to an earlier pleading: “When the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment shall relate back to the date of the original pleading.” Under this rule, as long as the claims alleged in an amended pleading arise from the same “conduct, transaction, or occurrence” alleged in an initial, timely filed pleading, the expiration of the statute of limitations in the interim will not bar the claims asserted in the amended pleading. See Flores v. Riscomp Indus., Inc., 35 So.3d 146, 147 (Fla. 3d DCA 2010). Further, “an amendment which merely makes more specific what has already been alleged generally, or which changes the legal theory of the action, will relate back even though the statute of limitations has run in the interim.” Kiehl v. Brown, 546 So.2d 18, 19 (Fla. 3d DCA 1989) (citing Keel v. Brown, 162 So.2d 321, 323 (Fla. 2d DCA 1964)).

Although it is generally true that the relation back doctrine should be liberally applied, forfeitures are harsh ex-actions, and the forfeiture statutes are to be strictly construed. Gomez v. Village of Pinecrest, 41 So.3d 180, 185 (Fla.2010). “‘Due process mandates that the provisions of the forfeiture act be strictly interpreted in favor of the person being deprived of their property.’ ” In re Forfeiture of 2003 Chevrolet Corvette, Identification No. 1G1YY12S435100084 Tag VBA386, 932 So.2d 623, 625 (Fla. 2d DCA 2006) (emphasis omitted) (quoting Town of Oakland v. Mercer, 851 So.2d 266, 269 (Fla. 5th DCA 2003)).

As noted by the trial court, this is a case of simple, and understandable, confusion. Mr. Floyd robbed three banks in one city, fleeing in two different vehicles. Unfortunately, by the time the HCPD realized the error in its initial complaint, the forty-five-day filing deadline had passed. Instead of dismissing the complaint, the HCPD sought to amend it. Despite the trial court’s finding, it is clear the allegations in the amended complaint did not arise from the same conduct, transaction, or occurrence as those in the original complaint. Neither did the amended complaint “make[] more specific what ha[d] already been alleged generally.” Kiehl, 546 So.2d at 19. Instead, the amended complaint set forth entirely new facts and details.

Accordingly, we must reverse the final order of forfeiture. In doing so, we recognize that the HCPD is barred from bringing further forfeiture actions against Mr. Floyd arising from the various Haines City bank robberies. On remand, the trial court is instructed to order the return of Mr. Floyd’s 1992 Pontiac Firebird.

Reversed and remanded.

WALLACE and MORRIS, JJ., Concur.


text:
    A.B.E., the Mother and M.D., the Father, Appellants, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    Nos. 4D10-2140, 4D10-2141.
    District Court of Appeal of Florida, Fourth District.
    Oct. 27, 2010.
    Rehearing Denied Nov. 12, 2010.

      Philip J. Massa, Regional Counsel, and Andrea H. Dueñas, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach, for appellants.
    Jeffrey Dana Gillen, West Palm Beach, for appellee Department of Children and Families.
    Kelley Schaeffer, Tavares, for appellee Guardian Ad Litem Program.
   WARNER, J.

A mother and father appeal the trial court’s order terminating their parental rights to their child. The mother argues that the Department of Children and Families failed to prove any ground for termination and further failed to establish that the provision of additional services to the mother would be futile. The father complains that the court erred in finding that the termination of his rights was the least restrictive means to protect the child when a relative was available to care for her. We affirm the termination of rights of both parents, finding that the record supports termination on each ground of termination and that termination is the least restrictive means of protecting the child from harm.

The mother, A.B.E., gave birth to M.D. in 2005. Both mother and child tested positive for cocaine, and M.D. was sheltered and then placed with foster parents. A.B.E. was given a case plan by the Department of Children and Families with six tasks. While working on the tasks, the mother failed a drug test and then attempted suicide by shooting herself with a gun, resulting in her paralysis. Despite this, the mother completed most of the case plan tasks. Those tasks included, among others, receiving substance abuse treatment, having in-home parenting upon reunification with the child, and having a mental health evaluation. During this time, the child was also receiving therapy, as she had some developmental issues.

Mother and child were reunited in June of 2008. After reunification, the child’s therapist conducted three sessions with the mother to help her deal with the child’s behavioral issues. Another in-home parenting instructor also worked with the mother, meeting with her twice a week for four to six hours per week to assist the mother in learning how to parent.

At first the reunification seemed to go well. However, the child’s therapist noticed that the child seemed more withdrawn. By September, however, both the child’s therapist and the in-home instructor observed that the mother was not handling the child well at all. The therapist did not observe a bond or attachment between mother apd child. That same month the in-home instructor also observed that the mother was unnecessarily upset with the child’s behavior. The in-home instructor concluded that although the mother had completed the in-home parenting program, she didn’t comprehend what it meant to be a parent. Thus, the instructor would not give the mother a certificate of completion.

In September, the child’s Guardian Ad Litem visited the child at her day care and observed bruising on her lip. Several days later, day care workers noticed the child had bruising on her cheek consistent with a slap. The DCF case manager again removed the child from the mother’s home. After an examination of the child by the Child Protection Team, she was returned to the foster parents. The CPT documented four injuries in various stages of healing: a “busted lip,” a scratch above the ear, a red mark on her cheek, and two bumps on the forehead.

A detective interviewed the mother, who admitted striking the child on at least two occasions. She admitted that she punished the child for having potty accidents, for failing to eat, and for failing to clean up her room, even though the child was only three years old. The mother was criminally charged with child abuse, after which DCF filed the petition for termination. Later, the mother pled no contest to the charges, and was placed on 18 months of probation. A special condition of her probation was to have no contact with her child unless the dependency court did not terminate parental rights. Consistent with that condition, she did not contact the child at any time, although she sent one birthday gift. Additionally, she never made an inquiry to the DCF case manager as to the child’s welfare, nor did she ask about what other tasks she must accomplish in order to reunify with her daughter.

At trial the case manager testified that the mother was not in compliance with the case plan for the simple fact that when mother and daughter were reunited the mother ended up abusing the child. The in-home parenting consultant also testified that she did not give the mother a certificate of completion because of the mother’s failure to comprehend parenting. In addition, the CPT nurse practitioner who examined the child when she showed signs of abuse testified that if the mother had had two parenting classes before reunification and continued to abuse the child, the child’s safety was very much at risk. The CPT clinical supervisor testified that from the short period of time that the child was in the primary care of the mother, after the mother had already received services, it appeared that the mother had not learned or benefitted from the services, because she was still abusing the child.

As to the father, the case manager testified that the father was incarcerated when the child was first in foster care. When he was released, DCF tried to start a new case plan for him. He had substance abuse referrals and never completed the case plan. He was very inconsistent in setting up visits with the child. Then in November 2008 he was again incarcerated, released, and then incarcerated again, where he remained through the date of the final hearing.

The father had requested that DCF find suitable placement with his nieces. One niece was not suitable, because she was in the military and due to be shipped out. A home study on the second niece initially found that the home was acceptable, but then she moved in with her brother. The home study on that residence was unacceptable. The niece and her brother were only 19 and 18, respectively, and the brother had an extensive criminal history. In addition, the case manager found liquor in the house, despite neither occupant being of age, and no food in the refrigerator. Although the niece claimed that the problems had been remedied, she never contacted the case manager for a third study.

Based upon the evidence presented, the trial court entered an extensive order terminating the parents’ rights. The court found that the parents had engaged in conduct towards the child that demonstrated that continuing involvement of the mother and father would threaten the child’s safety, irrespective of the provision of services, that they had failed to substantially comply with the case plan, and that they had abandoned the child. No love, affection or emotional tie between the mother, father, and child was apparent. It found no other suitable custody arrangements were available. The court found it to be in the child’s best interests to return to the foster parents, with whom she had lived since birth. The mother and father both appeal this ruling.

The mother argues three points on appeal. First, she claims that she was not provided with adequate services prior to the termination of her parental rights, because she was not given a psychiatric evaluation. Second, she claims that DCF could not prove that she failed to comply with her case plan where she completed all the tasks, and no new case plan was offered. Third, she argues that DCF failed to prove that she abandoned the child when the court prevented all contact between her and the child as a result of her conviction for child abuse. The father argues that the court erred in determining that termination was the least restrictive means to protect the child where a relative placement was available. We reject all claims.

Section 39.806(l)(c), Florida Statutes, provides grounds for termination of parental rights:

(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.

The mother argues that she was not provided adequate services, because she was not given a psychiatric evaluation. DCF knew she was bipolar, had attempted suicide before reunification, and had expressed a need for help in the areas of stress and anger management. Fifteen days prior to reunification, a program manager for Hibiscus Children’s center had noted that the mother might need a mental health referral. Rather than having her evaluated by a mental health provider, DCF instead reunified her with the child, providing only in-home parenting.

DCF must not only establish a ground for termination of parental rights but must also show a continuing risk to the child. See C.B. v. Dep’t of Children & Families, 874 So.2d 1246, 1253 (Fla. 4th DCA 2004) (quoting F.L. v. Dep’t of Children and Families, 849 So.2d 1114, 1122 (Fla. 4th DCA 2008), reversed on other grounds, 880 So.2d 602 (Fla.2004)). ‘This means that [DCF] 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.’ ” Id. (quoting F.L., 849 So.2d at 1121).

The mother cites V.M. v. Department of Children and Families, 922 So.2d 1085 (Fla. 4th DCA 2006), in support of her contention that DCF did not provide reasonable services, but that case is distinguishable. There, we held that a father’s rights could not be terminated without reasonable attempts being made to rehabilitate him. The father had been incarcerated, and DCF never prepared a formal case plan nor made contact with him during incarceration, even though after his release the father began regular visits to his child.

In contrast, in the present case the mother did receive a case plan and various treatments, including an evaluation by a mental health provider. A mental health counselor sent a letter stating that there was no need for a separate psychiatric evaluation because one had been done as part of her drug treatment. The mother admits that she completed the substance abuse treatment, including anger management, batterer’s intervention, and women’s support counseling sessions. The case manager testified that she was of the opinion that “no services can correct the mother’s behavior.” Although some evidence adduced by the mother indicated that she might have needed additional mental health counseling, other evidence indicated that she did not. The trial court was in the best position to determine the issue, and competent substantial evidence supports the finding that DCF made reasonable and good faith efforts to rehabilitate the mother.

The mother also complains that the court erred in terminating her parental rights on the ground that she had failed to substantially complete her case plan. Section 39.806(l)(e), Florida Statutes, allows for termination of parental rights where a case plan has been filed for a parent, and the child continues to be abused by the parent. Failure to substantially comply with the case plan constitutes evidence of continuing abuse. Id. The mother asserts that she complied with all of her case plan tasks prior to reunification. However, while she had completed most of her tasks prior to reunification, she still had to complete the in-home parenting course after reunification. During that time, the instructor observed that she did not understand parenting and could not apply the skills and information she had been taught. The instructor refused to provide her with a certificate of completion. Moreover, less than three months after reunification and prior to completion of the in-home parenting, she abused the child, thus showing that she had not successfully and substantially completed her tasks.

We disagree with the mother’s assertion that simply accepting the in-home instruction was sufficient to complete the case task, where the in-home instructor determined that she did not apply those teachings. Based upon the mother’s logic, she could have completed drug treatment by attending counseling sessions, yet still be on drugs, and the court would have to conclude that she had substantially complied with her plan. Here, while the in-home instructor came and tried to help the mother understand how to parent, the mother failed to understand or apply the lessons and physically abused her child. That can hardly constitute substantial completion of a case plan designed to reunite mother and child in a safe environment. Competent substantial evidence supports the trial court’s conclusion that the mother did not successfully and substantially complete her case plan.

The court also found that the mother had abandoned the child, but the mother argues that after the second removal, the disposition of her criminal charges prevented her from contacting the child. The trial court found abandonment, because the mother had not even inquired into the welfare of the child after the second removal. We agree.

Section 39.01(1), Florida Statutes (2009), defines “abandonment” as:

[A] situation in which the parent or legal custodian of a child ... while being able, makes no provision for the child’s support and has failed to establish or maintain a substantial and positive relationship with the child. For purposes of this subsection, “establish or maintain a substantial and positive relationship” includes, but is not limited to, frequent and regular contact with the child through frequent and- regular visitation or frequent and regular communication to or with the child, and the exercise of parental rights and responsibilities. Marginal efforts and incidental or token visits or communications are not sufficient to establish or maintain a substantial and positive relationship with a child.... The incarceration of a parent, legal custodian, or caregiver responsible for a child’s welfare may support a finding of abandonment.

In M.A. v. Department of Children and Families, 814 So.2d 1244 (Fla. 5th DCA 2002), the court found sufficient evidence of abandonment where a father had left his children in foster care and failed to visit or even inquire of the foster parents or DCF as to their welfare. Similarly, in this case the court found the mother’s lack of interest in her child and failure to even inquire as to her welfare constitutes abandonment under the statute. We agree. Particularly in the case of small children where time is “of the essence” in their development, a parent who fails to support or to maintain any relationship for extended periods of time can be said to have abandoned his or her child. The mother evinced no interest in her child once the child was removed for the second time.

In re T.B. (J.T. v. Dep’t of Children and Family Services), 819 So.2d 270 (Fla. 2d DCA 2002), upon which the mother relies, is distinguishable. There, an incarcerated father, who first learned he had a child while in prison, requested photos of the child from DCF and attempted to maintain contact with the child. However, DCF never told him how to contact T.B. and thwarted his attempts to have his relatives visit the child. DCF attempted to terminate his rights just prior to his release from prison, and the appellate court found that DCF had not proven abandonment of the child. Unlike this mother, the father in T.B. had made attempts to contact the child which were essentially prevented by DCF. In other words, the father had shown interest in his child and in being a parent. Here, after the second removal the mother did not show interest in her child or in being a parent.

Finally, the father in this case argues that DCF failed to prove that termination was the least restrictive means of protecting the child from harm where the father’s relatives were available to care for the child. To terminate parental rights, the Department of Children and Families must establish: 1) the existence of one of the statutory grounds in Chapter 39; 2) that termination is in the child’s best interest; and 3) that it is the least restrictive means of protecting the child from harm. J.J. v. Dep’t of Children and Families, 886 So.2d 1046, 1048-49 (Fla. 4th DCA 2004).

The mere fact that a relative is available for placement does not mean that DCF cannot prove that termination is the least restrictive means of protecting the child. See Guardian Ad Litem Program v. T.R., 987 So.2d 1269 (Fla. 1st DCA 2008) (explaining that under section 39.810(1), Florida Statutes, the availability of a nonadoptive placement with a relative could be considered, but could not be given greater weight than any other factor, as the focus should be on the best interests of the child); N.S. v. Dep’t of Children and Families, 36 So.3d 776, 779 (Fla. 3d DCA 2010) (“The existence of possible placement with a relative is irrelevant to the least restrictive means test, where DCF made reasonable efforts to rehabilitate the Mother....”).

In this case, the father had failed to complete his own case plan. Although he requested placement with his niece, the father’s niece was not deemed to be a suitable placement for the child. While she had passed a home study, she then moved in with her brother, and that was not a suitable environment for the child. The niece stated that she had corrected the deficiencies but never contacted DCF to request an additional study. Considering the age of the niece, her inappropriate choice to move in with a brother with an extensive criminal history, and the presence of alcohol in the home, it is easy to see how the court could consider such a placement insufficient to protect the child from further harm. While the court is required to consider the least restrictive means, the least restrictive means test is not intended “to preserve a parental bond at the cost of a child’s future.” Dep’t of Children and Families v. B.B., 824 So.2d 1000, 1009 (Fla. 5th DCA 2002).

Moreover, the child had been living with the foster parents since the child was born, except for the 11-week period of time she was reunified with the mother. The foster parents had established a bond with the child and wanted to adopt her. Thus, the long-term placement with the father’s relative was not in the child’s best interest. Competent substantial evidence supports the trial court’s rulings.

For the foregoing reasons, we affirm the termination of parental rights of both the father and the mother.

POLEN and LEVINE, JJ., concur.


text:
    William BROWNING, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-5317.
    District Court of Appeal of Florida, First District.
    Nov. 1, 2010.
    William Browning, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

WOLF, DAVIS, and WETHERELL, JJ., concur.


author: MORRIS, Judge.

text:
    GEICO INDEMNITY COMPANY, Appellant, v. PHYSICIANS GROUP, LLC, a/a/o Paul Androski, Appellee.
    District Court of Appeal of Florida, Second District.
    Nov. 3, 2010.

      Charles W. Hall and Mark D. Tinker of Banker Lopez Gassier, P.A., St. Peters-burg, for Appellant.
    Thomas Andrew Player of Weiss Legal Group, P.A., Maitland; Anthony D. Barak of Barak & Ziutani, L.L.C., Sarasota; and David M. Caldevilla of de la Parte & Gilbert, P.A., Tampa, for Appellee.
    J. Kurt Kaple of The Kaple Law Firm, P.A., Aventura, for Amicus Curiae 21st Century Insurance Company.
    Douglas H. Stein of Seipp & Flick, Miami, for Amicus Curiae Progressive American Insurance Company.
    Jose Pagan of Allen, Kopet & Associates, PLLC, Tallahassee, and Aaron E. Leviten of Allen, Kopet & Associates, PLLC, Winter Park, for Amicus Curiae American Independent Insurance Company.
    Gary M. Farmer, Jr. of Farmer, Jaffe, Weissing, Edwards, Fistos & Lehrman, PL, Fort Lauderdale, and Edward H. Ze-bersky of Zebersky & Payne, LLP, Hollywood, for Amicus Curiae The Florida Medical Association.
   MORRIS, Judge.

GEICO Indemnity Company seeks this court’s discretionary review of an order of the county court entering final declaratory judgment in favor of Physicians Group, LLC, on Physicians Group’s complaint against GEICO for further payment of medical bills for care provided by Physicians Group to GEICO’s insured. GEI-CO claimed that the 2008 version of the personal injury protection (PIP) statute, section 627.736, Florida Statutes (2008), allowed GEICO to reduce payment to Physicians Group. The county court ruled that the 2008 version did not apply to the insurance policy in this case because the policy was issued prior to the effective date of the 2008 statute. Pursuant to Florida Rule of Appellate Procedure 9.030(b)(4)(A), the county court certified the following question to be of great public importance:

DOES THE LEGISLATURE’S JANUARY 1, 2008, REENACTMENT/REVISION TO THE FLORIDA NO-FAULT LAW APPLY TO ALL DATES OF TREATMENT OCCURING [SIC] ON OR AFTER JANUARY 1, 2008, OR DOES IT APPLY ONLY TO THOSE INSURANCE POLICIES WHICH WERE IN EFFECT ON OR AFTER JANUARY 1, 2008?

We rephrase the certified question to conform to the facts of this case:

DOES THE 2008 VERSION OF THE FLORIDA MOTOR VEHICLE NO-FAULT LAW, WHICH EXPRESSLY APPLIES TO PIP POLICIES “IN EFFECT ON OR AFTER JANUARY 1, 2008,” APPLY TO A PIP POLICY THAT WAS ISSUED AND WHICH EXPIRED PRIOR TO THE LAW’S EFFECTIVE DATE OF JANUARY 1, 2008?

In answering the rephrased certified question in the negative, we hold that the 2008 version of section 627.736 does not apply retroactively to the policy in this case. We accordingly affirm the judgment of the county court.

On September 5, 2006, Paul Andro-ski was injured in an automobile accident. At that time, he was insured by GEICO for PIP coverage pursuant to a policy in effect from August 28, 2006, to February 23, 2007. Androski received medical treatment for his accident injuries from Physicians Group beginning on January 24, 2007. On that date, he assigned his right and benefits under the policy to Physicians Group. The policy provided that GEICO “will pay, in accordance with the Florida Motor Vehicle No-Fault Law, as amended, ... 80% of medical expenses.” This was consistent with the 2006 version of the PIP statute, which required insurers to pay 80% “of all reasonable expenses for medically necessary medical ... services.” § 627.736(l)(a), Fla. Stat. (2006). Accordingly, GEICO paid Physicians Group 80% of the full amount billed for medical services provided to Androski for the year 2007.

On January 1, 2008, the new Florida Motor Vehicle No-Fault Law, including a new PIP statute, went into effect. See ch. 2007-324, § 13 at 15, § 20 at 34, Laws of Fla. The new PIP statute contains the same language as quoted above but also provides that for nonemergency, nonhospi-tal services (like those rendered in this case), a PIP insurer “may limit reimbursement to 80[%] of ... 200[%] of the allowable amount under the participating physicians schedule of Medicare Part B” or if the services are “not reimbursable under Medicare Part B, ... 80[%] of the maximum reimbursable allowance under worker’s compensation.” § 627.736(5)(a)(2)(f), Fla. Stat. (2008).

On January 7, 2008, Physicians Group performed an arthroscopic procedure on Androski for an accident-related injury. GEICO, applying the new 2008 statute, did not pay 80% of the billed amount for the 2008 surgery. Instead, GEICO reduced payment to 80% of 200% of the Medicare Part B fee schedule or $1122.86 of the $13,500 bill. Payment of 80% of the bill under the 2006 PIP statute would have been $10,800.

Physicians Group filed a complaint against GEICO in county court, seeking a declaratory judgment that GEICO is prohibited from retroactively applying the 2008 law to claims based on a policy that was issued prior to the enactment of the 2008 statute. Both parties filed motions for summary judgment. The county court granted Physicians Group’s motion and denied GEICO’s motion, ruling that the law in effect at the time the insurance policy was executed controls the rights and liabilities of the parties. The trial court also ruled that the 2008 version of the statute was substantive and not remedial and should not be applied retroactively. Upon motion by GEICO, the county court certified the above issue as one of great public importance in its final declaratory judgment.

“[I]t is generally accepted that the statute in effect at the time an insurance contract is executed governs substantive issues arising in connection with that contract.” Hassen v. State Farm Mut. Auto. Ins. Co., 674 So.2d 106, 108 (Fla.1996) (citing Lumbermens Mut. Cas. Co. v. Ceballos, 440 So.2d 612, 613 (Fla. 3d DCA 1983)); see Esancy v. Hodges, 727 So.2d 308, 309 (Fla. 2d DCA 1999). In Menendez v. Progressive Express Insurance Co., 35 So.3d 873 (Fla.2010), the supreme court outlined a two-part test to determine whether a statute that was enacted after the issuance of an insurance policy should have retroactive effect on claims arising out of that policy. First, a court must determine whether the legislature intended for the statute to apply retroactively. Second, if such an intent is clearly expressed, the court must determine whether the retroactive application would violate any constitutional principles. Id. at 877 (citing Metro. Dade Cnty. v. Chase Fed. Hous. Corp., 737 So.2d 494, 499 (Fla.1999)).

A statute will not be determined to be retroactive unless its terms clearly show that the legislature intended such. Arrow Air, Inc. v. Walsh, 645 So.2d 422, 424 (Fla.1994).

“Requiring clear intent assures that [the legislature] itself has affirmatively considered the potential unfairness of retroactive application and determined that it is an acceptable price to pay for the countervailing benefits. Such a requirement allocates to [the legislature] responsibility for fundamental policy judgments concerning the proper temporal reach of statutes.... ”

Id. at 425 (alterations in original) (quoting Landgraf v. USI Film Prods., 511 U.S. 244, 272-73, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994)).

A plain reading of the 2008 Florida Motor Vehicle No-Fault Law does not indicate a legislative intent that it applies retroactively to the policy in this case. In fact, section 627.7407(2), Florida Statutes (2008), adopted in 2007 and titled “Application of the Florida Motor Vehicle No-Fault Law,” specifically provides that “[a]ny personal injury protection policy in effect on or after January 1, 2008, shall be deemed to incorporate the provisions of the Florida Motor Vehicle No-Fault Law, as revived and amended by this act.” See ch. 2007-324, § 21 at 44, Laws of Fla. It is therefore clear that the legislature did not intend for the 2008 statute to apply to a policy that was issued in 2006 and that expired in 2007. Because the facts are not before us, we do not address whether the 2008 statute retroactively applies to a policy that was issued prior to but was “in effect on” January 1, 2008.

Because the legislature did not intend for the retroactive application of the 2008 statute under the facts of this case, it is unnecessary for this court to reach the second part of the two-part test on retroactive application.

Accordingly, we answer the certified question by holding that the 2008 version of section 627.736(5)(a)(2)(f) does not retroactively apply to an insurance policy that was no longer in effect on the statute’s effective date of January 1, 2008. The judgment of the county court is affirmed.

WALLACE and KHOUZAM, JJ., Concur.

      . Androski’s policy with GEICO was renewed after February 23, 2007; however, that fact is irrelevant because it is well settled that "upon each renewal of an insurance policyf,] an entirely new and independent contract of insurance is created.” Marchesano v. Nationwide Prop. & Cas. Ins. Co., 506 So.2d 410, 413 (Fla.1987). The policy in question in this case is the one that was in effect at the time of the accident.


author: POLEN, J.

text:
    R.I., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 4D10-1540.
    District Court of Appeal of Florida, Fourth District.
    Nov. 3, 2010.
    Rehearing Denied Dec. 8, 2010.

      William W. Booth and Michelle Hankey of Legal Aid Society of Palm Beach County, Inc., West Palm Beach, for appellant.
    Colleen Farnsworth, Assistant Regional Legal Counsel, Florida Department of Children & Families, West Palm Beach, for appellee.
    Pamela S. Wynn, Lake Worth, for Ami-cus Curiae Child & Family Connections, Inc.
   POLEN, J.

R.I. appeals the trial court’s “Order Denying Motion to Order Department of Children and Families to Pay Fees Associated with the Administration of the Trust.”

R.I. is developmentally disabled. He resided in foster care until his eighteenth birthday in April 2010. He remains under the extended jurisdiction of the juvenile court until his 19th birthday. See § 39.013(2), Fla. Stat. (2010). While in foster care, R.I. received Social Security benefits due to his disability, which were held in the department’s master trust, for which the department is trustee. R.I. now lives in an APD (Agency for Persons with Disabilities) home, and receives a stipend from the department through the Road to Independence (RTI) program.

Section 402.17(7)(c), Floi'ida Statutes (2010), applicable to R.I., provides as follows:

When a client under the age of 18 who has been in the legal custody, care, or control of the department and for whom the department is holding money or property as a trustee attains the age of 18 and has a physical or mental disability, or is otherwise incapacitated or incompetent to handle that client’s own financial affairs, the department shall apply for a court order from a court of competent jurisdiction to establish a trust on behalf of that client. Where there is no willing relative of the client acceptable to the court available to serve as trustee of such proposed trust, the court may enter an order authorizing the department to serve as trustee of a separate trust under such terms and conditions as the court determines appropriate to the circumstances, [emphasis added]

Because R.I. was not competent to handle his own financial affairs, and had no responsible relative to act as trustee, he requested that the court order the department to establish a trust on his behalf, separate from the master trust, and that the department serve as trustee. The trial court granted, in part, R.I.’s motion to establish a trust and appoint trustee, and reserved ruling on the issue of fees that would be imposed for the establishment and administration of the trust.

An entity was located that was willing to serve as trustee, the Center for Special Needs Trust Administration. This Florida, not-for-profit corporation has established a pooled trust pursuant to 42 U.S.C. § 1396p(d)(4)(C), to protect public assistance benefits, and utilize trust assets to meet special needs that are not provided by basic public assistance, on behalf of its beneficiaries. A one-time fee of $500 for trusts with less than $7,500, is assessed at the time of establishment of a trust by that agency.

The parties agreed to having R.I.’s conserved funds in the department’s master trust transferred to a trust administered by the Center for Special Needs Trust Administration, rather than having the department create an entirely new trust for R.I. R.I. did not, however, consent to the payment of the one-time $500 fee for the establishment of the trust, and moved for an order requiring the department to pay the fee. At the hearing, R.I. argued that, when the department is required to “establish” a trust pursuant to subsection (c) of the statute, it must pay any fees associated with the establishment of the trust. The trial court disagreed, and denied R.I.’s motion to require the department to pay the fee. In its written order, the trial court stated:

This is a case of first impression. This Court gives the plain meaning to words in § 402.17(7)(c). Here, the statute is silent as to the payment of fees. The Court will not read this requirement into the statute as it is presumed the Legislature knew how to state a requirement that [the department] pay trust fees.

We agree with the trial court. The statute directs only that “the department shall apply for a court order from a court of competent jurisdiction to establish a trust on behalf of that client,” and that “the court may enter an order authorizing the department to serve as trustee of a separate trust under such terms and conditions as the court determines appropriate to the circumstances.” § 402.17(7)(c) (emphasis added). The latter course of action is, of course, discretionary.

“Legislative intent guides statutory analysis, and to discern that intent we must look first to the language of the statute and its plain meaning.” Fla. Dep’t of Children & Family Servs. v. P.E., 14 So.3d 228, 234 (Fla.2009). As the supreme court recently reiterated:

[A] “statute must be given its plain and obvious meaning.” ... In interpreting [a statute], however, we cannot read [a] subsection in isolation, but must read it within the context of the entire section in order to ascertain legislative intent for the provision.... A “statute should be interpreted to give effect to every clause in it, and to accord meaning and harmony to all of its parts” and is not to be read in isolation, but in the context of the entire section....

Fla. Dep’t of Envtl. Protection v. ContractPoint Fla. Parks, LLC, 986 So.2d 1260, 1265-66 (Fla.2008) (citations omitted); see also P.E., 14 So.3d at 234 (“[i]t is axiomatic that all parts of a statute must be read together in order to achieve a consistent whole”) (quoting Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So.2d 452, 455 (Fla.1992)).

The department’s obligations in administering a child’s master trust account are detailed in section 402.17. The Legislature’s first charge in the statute requires the department to “protect the financial interest of the state with respect to claims that the state may have for the care and maintenance of clients of the department or agency.” The statute further instructs that the department

shall, as trustee, hold in trust and administer money ... designated for the personal benefit of clients .... [and] act as trustee of clients’ money ... in accordance with the usual fiduciary standards applicable generally to trustees, and shall act to protect both the short-term and long-term interests of the clients for whose benefit it is holding such money....

§ 402.17, Fla. Stat. The department contends that the administrative fee to join the special needs pooled trust is an appropriate expenditure of client funds under the statute, because the expenditure is intended to benefit, and will benefit, R.I. The department notes that R.I. agreed to the use of this trust in order to meet his needs.

Subsection (2)(c) of the statute provides: The department ... shall perform the following acts: ...
Withdraw the money and use it to meet current needs of clients. For purposes of this paragraph, ‘current needs’ includes payment of fees assessed under s. 402.33. The amount of money withdrawn shall take into account the need of the department ... as the trustee of a client’s money and property, to provide for the long-term needs of a client, including, but not limited to, ensuring that a client under the age of 18 will have sufficient financial resources available to be able to function as an adult upon reaching the age of 18, meeting the special needs of a client who has a disability and whose special needs cannot otherwise be met by any form of public assistance or family resources, or maintaining the client’s eligibility for public assistance, including medical assistance, under state or federal law.

§ 402.17(2)(c) (emphasis added).

R.I.’s entry into the trust will allow him to conserve his assets, and thus, will protect both his short-term and long-term interests. See § 402.17. As the department explains in its answer brief:

The special needs pooled trust is established and administered pursuant to 42 U.S.C. § 1396p(d)(4)(C), to ensure that assets contained in the trust are exempt from being counted towards the [$2,000] SSI resource cap. In other words, the primary purpose of the special needs pooled trust is to ensure that [R.I.] can conserve some level of personal assets while continuing to be eligible for SSI benefits. [R.I.] may also deposit his Road to Independence stipend into this trust.

Accordingly, the special needs pooled trust is an established and lawful vehicle for holding and administering funds of an SSI beneficiary, without those funds being counted against the $2,000 SSI resource cap. 42 U.S.C. § 1396p(d)(4)(C); POMS SI 01120.203.

We further agree with the department that the expenditure of R.I.’s assets to cover the administrative fee is consistent with “the usual fiduciary standards applicable generally to trustees,” as required by section 402.17. Section 786.0816, Florida Statutes, allows a trustee to, among other things, “[p]ay taxes, assessments, ... and other expenses incurred in the administration of the trust.” § 736.0816(15), Fla. Stat. (2010). We disagree with R.I. that using his funds to pay the administrative fee constitutes compensation to the department.

R.I. speculates that the use of his master trust funds to pay the pooled trust fee “could” violate sections of the master trust that prohibit expenditure of trust assets in payment of a client’s “debt.” Citing no legal authority, R.I. implies that expenditure of master trust assets for anything other than a “basic living expense” constitutes satisfaction of a debt. Here, however, R.I.’s master trust assets are not being used to pay a debt, but an expense necessary to shield his assets and protect his eligibility for federal welfare benefits.

In summary, the trial court correctly concluded there is no statutory requirement mandating the department to pay any administrative fees or costs for the establishment of a special needs pooled trust for a client who attains the age of eighteen. To the contrary, the applicable statutes authorize the department, as trustee, to expend the client’s trust assets for his benefit. R.I.’s joining the special needs pooled trust allows him to conserve his assets and ensure continued eligibility for public assistance, making the $500 administrative fee to join the special needs pooled trust an appropriate expenditure.

Affirmed.

HAZOURI and GERBER, JJ., concur.

      . The res of this trust will be composed of R.I.’s SSI benefits currently held in the department’s master trust, future payments of SSI benefits, and his RTI monthly stipend.