To Motion or Not to Motion – Second DCA still requires motion for dismissal below

The Second DCA is still requiring parents to make a motion for dismissal at trial in order to preserve arguments for appeal. O.T. v. DCF, — So.3d —- (Fla. 2nd DCA) (July 24, 2013). And for some reason defense attorneys in the Second DCA are still not doing that.

The Second at least certifies conflict:

The Appellant did not preserve any issues for appeal of the order terminating his parental rights, because he did not move for a judgment of dismissal below, either at the close of the Department’s case or at the close of his own. See J.F.S. v. Dep’t of Children & Families, 100 So.3d 784 (Fla. 1st DCA 2012); J.M. v. Florida Dep’t of Children & Families, 38 So.3d 236 (Fla. 1st DCA 2010); K.J. v. Dep’t of Children & Families, 33 So.3d 88 (Fla. 1st DCA 2010); J.D. v. Dep’t of Children & Families, 825 So.2d 447 (Fla. 1st DCA 2002).
Because the Fourth and Fifth District Courts of Appeal disagree that a parent must preserve issues for appellate review via motion for judgment of dismissal, we certify conflict with R.P. v. Dep’t of Children & Families, 49 So.3d 339 (Fla. 5th DCA 2010); and H.D. v. Dep’t of Children & Families, 964 So.2d 818 (Fla. 4th DCA 2007)review dismissed, 985 So.2d 1059 (Fla.2008).


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