In re Amendments to the Florida Rules of Juvenile Procedure (725 So. 2d 296, 1998)

Citations

725 So. 2d 296

Full opinion text

PER CURIAM.

We have before us an emergency petition of The Florida Bar Juvenile Court Rules Committee (“the Committee”) to amend the Florida Rules of Juvenile Procedure to conform to statutory changes that become effective October 1, 1998. Chapter 98-403, Laws of Florida, substantially reorganizes and amends Chapter 39, Florida Statutes (“Proceedings Relating to Children”), especially in regard to dependency and termination of parental rights proceedings. For example, Chapter 98-403, section 23, Laws of Florida, amends section 39.40, Florida Statutes (1997), renumbering it as section 39.013, to provide that at each stage of Chapter 39 proceedings, the court shall advise specified persons of the right to counsel, and addresses the appointment of counsel in cases of indigency. The 1998 statutory changes also require that any order placing a child in shelter care must contain certain written findings, such as a finding that the court notified the parents or legal custodians of the subsequent dependency proceedings, including scheduled hearings, and of the importance of the active participation of the parents or legal custodians in those subsequent proceedings and hearings. See ch. 98^103, § 58, Laws of Fla. (amending section 39.402(7)(b), Florida Statutes (1997), to appear as section 39.402(8)©).

We find that the majority of the Committee’s proposed amendments are necessary to conform with the 1998 statutory changes, as reflected in the amended versions of rule 8.201(a); rule 8.210(a); rule 8.215(c); rule 8.225(a)(1), (b)(3), (c)(1), (c)(2), and (c)(4)(D); rule 8.245(a)(1); rule 8.250(b); rule 8.290(a)(1); rule 8.305(a), (a)(2), (a)(3), (a)(6), (b)(1), (b)(4), (b)(6)(D), (b)(7)-(9), (c)(3), and (c)(6)-(7); rule 8.310(a)(2) and (a)(4)-(5); rule 8.315(d); rule 8.320(a)(l)-(2); rule 8.325(a)-(c); rule 8.340(a) and (c)(5)-(6); rule 8.345(b); rule 8.400(a), (a)(2), (a)(3)(B), and (c); rule 8.410(a), (b)(3)-(4), (c), and (e); rule 8.415(a)-©; rule 8.505(a)(2), (a)(7), and (b); rule 8.510(a)(3) and (b); rule 8.515(a)(2) and (a)(4)-(5); rule 8.520(d); rule 8.525(i)(A); and rule 8.535(c). We accordingly adopt the Committee’s proposed amendments to these rules (with minor modifications to more closely track the language in the 1998 statutory changes) as set forth in the appendix to this opinion.

We further note that the Committee has also taken this opportunity to clarify and correct certain rules in ways not necessitated by the 1998 statutory changes. For example, the Committee proposes deleting all references to the Department of Health and Rehabilitative Services (“HRS”), which was abolished several years ago. See, for example, the amended versions of rules 8.255(a) and 8.305(d). Similarly, the Committee proposes striking outdated language regarding treatment plans, disposition hearings, and the representation of HRS by the state attorney’s office in dependency matters. See the existing versions of rules 8.340(c), 8.530, and 8.310(a)(5), respectively.

The Committee further proposes combining several of the rules concerning participation (or lack thereof) in the preparation of case plans, thus allowing for the complete deletion of existing rule 8.405. Also, although not mandated by any specific portion of the 1998 statutory changes, the Committee proposes deleting existing rule 8.245(a)(3), regarding reciprocal discovery entitlements of petitioners, to foster the goal of promoting liberal discovery early in the proceeding in order to facilitate meaningful mediation and case negotiations.

We adopt, without comment, the majority of the Committee’s proposed clarifying and corrective amendments, as reflected in the amended versions of rule 8.000; rule 8.225(a)(3), (a)(3)(C), and (a)(4)(A)(iv); rule 8.240(b); rule 8.245(b)(2), (e)(2)(D), and (c)(3)(B); rule 8.255(a) and (c); rule 8.305(d); rule 8.310(a)(5); rule 8.330(a), (c), and (g); rule 8.340(c); and rule 8.500(a)(2), (b)(3), and (g)(2). We find, however, that the following proposed rule amendments are neither mandated by the 1998 statutory changes nor merely clarifying or corrective, and therefore decline to adopt them on an emergency basis at this time.

First, the Committee proposes striking from existing rule 8.205(b) the clause “when a stipulation under rule 8.325(d) has been accepted.” The proposed striking of this language is not mandated by the 1998 statutory changes, is otherwise unexplained by the Committee, and may be substantive in nature.

Second, the Committee proposes inserting into existing rule 8.210(b) the clause “providers under contract with the department for foster care and related services.” Again, the proposed addition of this language is not specifically mandated by the 1998 statutory changes. Additionally, this clause appears superfluous, as it presumably falls within the subsequent “catch all” language in the rule allowing the participation of “any other person whose participation may be in the best interest of the child.” We therefore decline to adopt this proposed amendment. However, we adopt the remaining proposed amendment to rule 8.210(b) that adds the words “or caregivers,” finding such amendment to be mandated by the 1998 statutory changes.

Third, the Committee proposes striking the clause in existing rule 8.345(a), “the parent, guardian, or any interested person,” and replacing it with the words “any party.” Again, this change is not mandated by the 1998 statutory changes and the Committee offers no explanation for it. Furthermore, the proposed replacement language is more restrictive than the existing language (i.e., the words “any party” do not necessarily include “any interested person”). We therefore decline to adopt this proposed amendment. However, we adopt the remaining proposed amendment to rule 8.345(a), which deletes a reference to HRS.

Fourth, the Committee proposes striking language at ‘ the end of existing rule 8.400(a)(1) that reads “which shall include but not be limited to the attorney representing the department, the department counsel- or, the parent(s), counsel for the parent, if represented, the guardian ad litem, and, when appropriate, the child.” Again, the proposed striking of this language is not mandated by the 1998 statutory changes, no explanation is contained for its deletion, and we are reluctant to strike it. We therefore decline to adopt this proposed amendment. However, we adopt the remaining proposed amendments to 8.400(a)(1) regarding the filing of a current ease plan prepared in conference by certain specified persons, finding such rule amendments to track the 1998 statutory changes.

Finally, the Committee proposes adding to the end of existing rule 8.520(d) the clause “unless excused by the court for good cause shown.” Again, the proposed addition of this language is not contained within the 1998 statutory changes and is not otherwise explained by the Committee. In declining to adopt this clause, we express no opinion as to whether or not the courts otherwise possess the authority to excuse a nonappearance for good cause shown. We adopt the remaining proposed amendments to rule 8.520(d) regarding personal appearance, finding that such amendments track the language of the 1998 statutory changes. See ch. 98-403, § 83, Laws of Fla. (amending section 39.462(l)(d), Florida Statutes (1997), and renumbering it as section 39.801(3)(d)).

In closing, we note that due to the necessity of adopting these rules to coincide with the October 1,1998, effective date of the 1998 statutory changes, there was insufficient time for our normal procedure of publishing the proposed rule amendments in The Florida Bar News for comments. We therefore adopt on an emergency basis the proposed amendments to the rules and accompanying forms as set forth in the attached appendix, effective October 1, 1998. By our adoption of the amendments and forms, we express no opinion on the substance of the rules or statutes, nor on the merits of any matter contained in the 1998 statutory changes. Except where indicated in this opinion, the rules and forms are as proposed by the Committee and approved by the Board of Governors of The Florida Bar. New language is indicated by underscoring; deletions are indicated by strike-through type. Interested persons may file comments to the amended rules and forms by November 1,1998.

It is so ordered.

HARDING, C.J., and OVERTON, SHAW, KOGAN, WELLS, ANSTEAD and PARIENTE, JJ., concur.

APPENDIX

Rule 8.000. SCOPE AND PURPOSE

These rules shall govern the procedures in the juvenile division of the circuit court in the exercise of its jurisdiction under the Florida Juvenile Justice Actlaw.

Part I of these rules governs the procedures for delinquency cases in the juvenile court. Part III governs the procedures for families and children in need of services cases in the juvenile court. The Department of Juvenile Justice shall be referred to as the “department” in these parts.

Part II of these rules governs the procedures for dependency cases in the juvenile court. The Department of Children and Family Services shall be referred to as the “department” in that part.

Theyse rules are intended to provide a just, speedy, and efficient determination of the procedures covered by them and shall be construed to secure simplicity in procedure and fairness in administration.

They shall be known as the Florida Rules of Juvenile Procedure and may be cited as Fla.R.Juv.P.

When appropriate the use of singular nouns and pronouns shall be construed to include the plural and the use of plural nouns and pronouns shall be construed to include the singular.

Committee Notes

1991 Amendment. All rules have been edited for style and to remove gender bias. The rules have been reorganized and renumbered to correspond to the types and stages of juvenile proceedings. Cross-references have been changed accordingly.

1992 Amendment. Scope and Purpose, previously found in rules 8.000, 8.200, 8.600, and 8.700, has been consolidated into one rule. Designations of subparts within the delinquency part of the rules have been changed accordingly. Reference to the civil rules, previously found in rule 8.200, has been removed because the rules governing dependency and termination of parental rights proceedings are self-contained and no longer need to reference the Florida Rules of Civil Procedure.

PART II. DEPENDENCY AND TERMINATION OF PARENTAL RIGHTS PROCEEDINGS

A. GENERAL PROVISIONS

Rule 8.201. COMMENCEMENT OF PROCEEDINGS

(a) Dependency.-All dependency proceedings shall be initiated by the filing of: Commencement of Proceedings. Proceedings are commenced when:

(1) a request to take info-cusfod-yan initial shelter petition is filed;

(2) a detention-petition; ora child is taken into custody by an authorized agent of the department or a law enforcement agency;

(3) a petition alleging dependency? is filed; or

(b) Termination- of Parental-Rights. A termination of'parental rights-proceeding shall-be-initiated by(4) the i'iiiug-of a petition for termination of parental rights is filed.

(e)(b) File to Be Opened. Upon commencement of any dependency or termination of parental rights proceeding, the clerk shall open a file and assign a case number.

Rule 8.205. TRANSFER OF CASES

(a) Transfer of Cases Within Circuit Court. If it should appear at any time in a proceeding initiated in a division other than the juvenile division of the circuit court that facts are alleged that essentially constitute a dependency or the termination of parental rights, the court may upon consultation with the administrative judge assigned to juvenile cases order the transfer of action and the transmittal of all relevant papers to the juvenile division. The juvenile division shall then assume jurisdiction only over matters pertaining to dependency, custody, visitation, and child support.

(b) Transfer of Cases Within the State of Florida. The court may transfer any case after adjudication, when adjudication is withheld, when a stipulation under rule 8.325(d) has been accepted, or before adjudication where witnesses are available in another jurisdiction, to the circuit court for the county in which is located the domicile or usual residence of the child or such other circuit as the court may determine to be for the best interest of the child and to promote the efficient administration of justice. The transferring court shall enter an order transferring its jurisdiction and certifying the case to the proper court, furnishing all parties, the clerk, and the state attorney of the receiving court a copy of the order of transfer within 5 days. The clerk shall also transmit a certified copy of the file to the receiving court within 5 days.

(c) Transfer of Cases Among States. If it should appear at any time that an action is pending in another state, the court may transfer jurisdiction over the action to a more convenient forum state, may stay the proceedings, or may dismiss the action.

Committee Notes

1992 Amendment. Plans under rule 8.327 were deleted in the 1991 revision to the rules, but are being reinstated as “stipulations” in the 1992 revisions. This change corrects the cross-reference.

Rule 8.210. PARTIES

(a)Definitions. For the purpose of these rules the terms “party” and “parties” shall include the petitioner, the child, the parent(s) or legal custodian of the child, the department, and the guardian ad litem or the representative of the guardian ad litem program, when the program has been appointed.

(b) Additional Participants. “Participant” means any person who is not a party but who should receive notice of hearings involving the child. Participants include foster parents or caregivers, identified prospective parents, actual custodians of the child, grandparents entitled to priority for adoption consideration as provided by law, the state attorney, and any other person whose participation may be in the best interest of the child. The court may add additional participants. Participants may be granted leave by the court to be heard without the necessity of filing a motion to intervene.

Committee Notes

1991 Amendment, (b) This section provides a mechanism to allow the Department of Health and Rehabilitative Services or the state attorney to become parties on notice to all other parties and the court.

1992 Amendment. Subdivision (b) allows additional parties, which should fall within the definition of “parties.” Sections 39.405(4)(b) and 39.437(4)(b), Florida Statutes, require service of summons upon the “actual custodians.” The result of the present rule is that in many instances relatives become parties. In almost all termination of parental rights cases, the foster parents would become parties. If custodians should be parties in a particular case, rule 8.210(b) would allow them to be parties.

Rule 8.215. GUARDIAN AD LITEM

(a) Request. At any stage of the proceedings, any party may request or the court may appoint a guardian ad litem to represent any child alleged to be dependent.

(b) Appointment. The court shall appoint a guardian ad litem to represent the child in any proceeding as required by law and shall ascertain at each stage of the proceeding whether a guardian ad litem has been appointed.

(c) Duties and Responsibilities. The guardian ad litem shall be an attorney, or ether a responsible adult, or a certified guardian ad litem program, and shall have the following responsibilities:

(1) To investigate the allegations of the petition and any subsequent matters arising in the case and, unless excused by the court, to file a written report. This report shall include a statement of the wishes of the child and the recommendations of the guardian ad litem and shall be provided to all parties and the court at least 48 hours prior to the hearing for which the report is prepared.

(2) To be present at all court hearings unless excused by the court.

(3) To represent the interests of the child until the jurisdiction of the court over the child terminates, or until excused by the court.

(4) To perform such other duties and undertake such other responsibilities as the court may direct.

(d) Bond. A guardian ad litem shall not be required to post bond but shall file an acceptance of the office.

(e) Service. A guardian ad litem shall be entitled to receive service of pleadings and papers as provided by rule 8.225.

(f) Practice of Law by Lay Guardians. The duties of lay guardians shall not include the practice of law.

(g) Substitution or Discharge. The court, on its own motion or that of any party, including the child, muy substitute or discharge the guardian ad litem for reasonable cause.

Committee Notes

1991 Amendment, (c)(1) This section allows a report to be submitted before any hearing, not only the disposition hearing.

RULE 8.225. PROCESS, DILIGENT SEARCHES, AND SERVICE OF PLEADINGS AND PAPERS

(a) Summons and Subpoenas.

(1) Summons. Upon the filing of a dependency petition, the clerk shall issue a summons. The summons shall require the person on whom it is served to appear for a hearing at a time and place specified not less than 24 72 hours after service of the summons. A copy of the petition shall be attached to the summons.

(2) Subpoenas. Upon the application of a party or the petitioner, the clerk shall issue, and the court on its own motion may issue, subpoenas requiring attendance and testimony of witnesses and production of records, documents, and other tangible objects at any hearing. Subpoenas may be served within the state by any person over 18 years of age who is not a party to the proceeding. In dependency proceedings, subpoenas also may be served by authorized agents of the department.

(3) Service of Summons and Other Process to Persons Residing in the State. The summons and other process shall be served upon all parties other than the petitioner as required by law. The summons may be served by authorized agents of the department or the guardian ad litem.

(A) Service by publication shall not be required for dependency hearings.

(B) The failure to serve a party or give notice to a participant in a dependency hearing shall not affect the validity of an order of adjudication or disposition if the court finds that the petitioner has completed a diligent search.

(C) Personal appearance of any person in a dependency hearing before the court eliminates the requirement for serving process upon that person.

(4) Service of Summons and Other Process to Persons Residing Outside of the State in Dependency Proceedings.

(A) Service of the summons and other process on parents, parties, participants, petitioners, or persons outside this state shall be in a manner reasonably calculated to give actual notice, and may be made:

(i) by personal delivery outside this state in a manner prescribed for service of process within this state;

(ii) in a manner prescribed by the law of the place in which service is made for service of process in that place in an action in any of its courts of general jurisdiction;

(iii) by any form of mail addressed to the person to be served and requesting a receipt; or

(iv) as directed by the court, including by publication if other means of notification are ineffective. Service by publication shall not be required for dependency hearings.

(B) Notice under this rule shall be served, mailed, delivered, or published at least 20 days before any hearing in this state.

(C) Proof of service outside this state may be made by affidavit of the person who made the service or in the manner prescribed by the law of this state, the order pursuant to which the service is made, or the law of the place in which the service is made. If service is made by mail, proof may be in a receipt signed by the addressee or other evidence of delivery to the addressee.

(D) Personal appearance of any person in a hearing before the court eliminates the requirement for serving process upon that person.

(b) Diligent Search.

(1) Identity or Residence Unknown. If the identity or residence of a parent or legal custodian is unknown, the petitioner or the department shall undertake a diligent search as required by law.

(2) Affidavit of Diligent Search. If the identity or residence of a parent or legal custodian is unknown after the diligent search has been completed, the petitioner or department shall file with the court an affidavit of diligent search executed by the person who made the search and inquiry.

(3) Continuing Duty. After filing an affidavit of diligent search in a dependency proceeding, the petitioner, and, if the court requires, the department, are under a continuing duty to search for and attempt to serve the parent or legal custodian whose identity or residence is unknown. The petitioner or the department shall report on the results of the continuing search at each court hearing until the person is identified or located or until further search is excused by the court.

(4) Court Inquiry. If the identity or location of a parent is unknown, and a petition for dependency or shelter care is filed, the court shall conduct an inquiry as required by law. The information required by law may be submitted to the court or to the department in the form of a sworn affidavit executed by a person having personal knowledge of the facts.

(5)Effect of Diligent Search.

(A) Failure to serve parents whose identity or residence is unknown shall not affect the validity of an order of adjudication or disposition if the court finds the petitioner has completed a diligent search.

(B) If the court inquiry, diligent search, or continuing search fails to identify any person as a parent or prospective parent, the court shall so find and may proceed without further notice.

(C) If the inquiry, diligent search, or subsequent search identifies any person as a parent or prospective parent, the court shall require notice of the hearing to be provided to that person. That person must then be given an opportunity to become a party to the proceedings by completing a sworn affidavit of parenthood and filing it with the court or the department.

(e) Notice and Service of Pleadings and Papers.

(1) Notice of Arraignment Hearings in Dependency Cases. Notice of the arraignment hearing must be served on all parties with the summons and petition. The document containing the notice to respond or appear in a dependency arraignment hearing must contain, in type at least as large as the balance of the document, the following or substantially similar language: “FAILURE TO RESPOND TO THIS NOTICE OR TO PERSONALLY APPEAR AT THÍSE ARRAIGNMENT HEARING CONSTITUTES CONSENT TO THE ADJUDICATION OF THEIS CHILD(REN> (OR CHILDREN) AS A DEPENDENT CHILD(EEN) (OR CHILDREN) AND MAY ULTIMATELY MAY RESULT IN LOSS OF CUSTODY OF THEIS CHILD(REN) (OR CHILDREN).”

(2) Notice of Hearings to Participants and Parties Whose Identity or Address are Known. All participants and parties whose identity and address are known must be notified of all proceedings and hearings subsequent to the initial hearing, unless the hearing is a proper ex parte hearing. Notice to parents in proceedings involving shelter hearings and hearings resulting from medical emergencies must be that which is most likely to result in actual notice, and, if the parents are outside the state, in the manner prescribed by this rule. It is the duty of the petitioner or moving party to notify all participants and parties known to the petitioner or moving party of all hearings subsequent to the initial hearing, except hearings which must be noticed by the court, unless Additional notice is not required if notice was provided to the parties in writing by the court or is contained in prior court orders and those orders were provided to the participant or party.

(3) Service of Pleadings, Orders, and Papers. Unless the court orders otherwise, every pleading, order, and paper filed in the action after the initial petition, shall be served on each party or the party’s attorney. Nothing herein shall be construed to require that a plea be in writing or that an application for witness subpoena be served.

(4) Method of Service. When service is required or permitted to be made upon a party or participant represented by an attorney, service shall be made upon the attorney unless service upon the party or participant is ordered by the court.

(A) Service is excused if the identity or residence of the party or participant is unknown and a diligent search for that person has been completed in accordance with law.

(B) Service upon the attorney shall be made by delivering a copy to the attorney or by mailing it to the attorney’s last known address.

(i) handing it to the attorney;

(ii) leaving it at the attorney’s office with the person in charge thereof; or

(iii) if there is no one in charge of the office, leaving it a conspicuous place therein.

(D) If the party or participant is not represented by an attorney, service of all pleadings or papers shall be upon the party or participant. DeliveryService may be made by mail to the party’s or participant’s permanent mailing address, if one has been provided to the court; to the last known address, if a permanent mailing address has not been provided to the court; or by leaving it at their usual place of abode with some person of their family above 15 years of age and informing such person of the contents.

(E) Service by mail shall be complete upon mailing.

(5) Filing. The filing of pleadings and other papers with the court as required by these rules shall be made by filing the original with the clerk of the court either before service or immediately thereafter. The court may permit the papers to be filed with it in which event the filing date shall be noted thereon and the papers shall be transmitted to the office of the clerk.

(6) Certificate of Service. When any authorized person shall in substance certify:

“I do certify that (copy) (copies) hereof have been furnished to (insert names or names) by (delivery) (mail) this.day of.,19.

Title”

this certificate shall be taken as prima facie proof of such service in compliance with all rules of court and law. The certificate must be signed by the attorney of record, clerk or deputy clerk, judicial assistant, or judge.

Rule 8.240. COMPUTATION AND ENLARGEMENT OF TIME

(a) Computation. In computing any period of time prescribed or allowed by these rules, except rules 8.300 and 8.305, by order of court, or by any applicable statute, the day of the act or event from which the designated period of time begins to run is not to be included. The last day of the period so computed shall be counted, unless it is Saturday, Sunday, or a legal holiday, in which event the period shall run until the end of the next day which is neither a Saturday, Sunday, nor a legal holiday. When the period of time prescribed or allowed shall be less than 7 days, intermediate Saturdays, Sundays, and legal holidays shall be excluded from the computation.

(b) Enlargement of Time. When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for good cause shown may, at any time, in its discretion (1) with or without notice, order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order, or (2) upon motion made and notice after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect; but it may not, except as provided by law or elsewhere in these rules, extend the time for making a motion for new trial, a motion for rehearing, vacation of judgment, or for taking an appeal. This rule shall not be construed to apply to detentionshelter hearings.

(1) Motions and Notice of Hearing. A copy of any written motion which may not be heard ex parte and a copy of the notice of the hearing thereof shall be served a reasonable time before the time specified for the hearing.

(2) Additional Time After Service by Mail. Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of notice or other paper upon him or her and the notice or paper is served by mail, 5 days shall be added to the prescribed period.

Rule 8.245. DISCOVERY

(a) Required Disclosure.

(1) At any time after the filing of a shelter petition, or petition alleging a child to be a dependent childi or a petition for termination of parental rights, on written demand of any party, the party to whom the demand is directed shall disclose and permit inspecting, copying, testing, or photographing matters material to the cause.

(2) The following information shall be disclosed by any party upon demand:

(A) The names and addresses of all persons known to have information relevant to the proof or defense of the petition’s allegations.

(B) The statement of any person furnished in compliance with the preceding paragraph. The term “statement” as used herein means a written statement made by said person and signed or otherwise adopted or approved by the person, or a stenographic, mechanical, electrical, or other recording, or a transcript thereof, or which is a substantially verbatim recital of an oral statement made by said person to an officer or agent of the state and recorded contemporaneously with the making of such oral statement. The court may prohibit any party from introducing in evidence the material not disclosed, so as to secure and maintain fairness in the just determination of the cause.

(C) Any written or recorded statement and the substance of any oral statement made by the demanding party or a person alleged to be involved in the same transaction.

(D) Tangible papers or objects belonging to the demanding party which are to be used at the adjudicatory hearing.

(E) Reports or statements of experts, including results of physical or mental examinations and of scientific tests, experiments, or comparisons.

(3)The petitioner--shall-be.entitled — to reciprocal discovery-but-shall not- be-entitled to initiate discovery under this rule,- and-the court may, for good cause shown, deny or partially restrict the disclosures provided for discovery sought by subdivisions (a)(1) and (2) of this rule.-

(43) The disclosures required by subdivision (a) of this rule shall be made within 5 days from the receipt of the demand therefor.

(b) Limitations on Disclosure.

(1) Upon application, the court may deny or partially restrict disclosure authorized by this rule if it finds there is a substantial risk to any person of physical harm, intimidation, bribery, economic reprisals, or unnecessary annoyance, or embarrassment resulting from such disclosure, which outweighs any usefulness of the disclosure to the party requesting it.

(2)Disclosure shall not be required of legal research or of records, correspondence, or memoranda, to the extent that they contain the opinion, theories, or conclusions of the prosecuting ■ or-defenseparties’ attorneys or members of their legal staff.

(1) Time and Place.

(A) At any time after the filing of the petition alleging a child to be dependent or a petition for termination of parental rights, any party may take the deposition upon oral examination of any person who may have information relevant to the allegations of the petition.

(B) The deposition shall be taken in a building where the adjudicatory hearing may be held, in such other place as agreed upon by the parties, or where the trial court may designate by special or general order. A resident of the state may be required to attend an examination only in the county wherein he or she resides, is employed, or regularly transacts business in person.

(2) Procedure.

(A) The party taking the deposition shall give written notice to each other party. The notice shall state the time and place the deposition is to be taken and the name of each person to be examined.

(B) Upon application the court or its clerk shall issue subpoenas for the persons whose depositions are to be taken.

(C) After notice to the parties the court, for good cause shown, may extend or shorten the time and may change the place of taking.

(D) Except as otherwise provided by this rule, the procedure for taking the deposition, including the scope of the examination and obtaining protective orders, shall be the same as that provided by the Florida Rules of Civil Procedure.

(3) Use of Deposition. Any deposition taken pursuant hereto may be used at any hearing covered by these rules by any party for the following purposes:

(A) For the pulióse of impeaching the testimony of the deponent as a witness.

(B) For testimonial evidence, when the deponent, whether or not a party, is unavailable to testify because of one or more of the following reasons:

(i) He or she is dead.

(ii) He or she is at a greater distance than 100 miles from the place of hearing or is out of the state unless it appears that the absence of the witness was procured by the party offering the deposition.

(iii) The party offering the deposition has been unable to procure the attendance of the witness by subpoena.

(iv) He or she is unable to attend or testify because of age, illness, infirmity, or imprisonment.

(v) It has been shown on application and notice that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used.

(vi) The witness is an expert or skilled witness.

(4) Use of Part of Deposition. If only part of a deposition is offered in evidence by a party, an adverse party may require the party to introduce any other part that in fairness ought to be considered with the part introduced, and any party may introduce any other parts.

(5) Refusal to Obey Subpoena. A person who refuses to obey a subpoena served upon the person for the taking of a deposition may be adjudged in contempt of the court from which the subpoena issued.

(6) Limitations on Use. Except as provided in subdivision (3), no deposition shall be used or read in evidence when the attendance of the witness can be procured. If it shall appear to the court that any person whose deposition has been taken has absented himself or herself by procurement, inducements, or threats by or on behalf of any party, the deposition shall not be read in evidence on behalf of that party.

(d) Perpetuating Testimony Before Action or Pending Appeal.

(1) Before Action.

(A) Petition. A person who desires to perpetuate the person’s own testimony or that of another person regarding any matter that may be cognizable in any court of this state may file a verified petition in the circuit court in the county of the residence of any expected adverse party. The petition shall be entitled in the name of the petitioner and shall show:

(i) that the petitioner expects to be a party to an action cognizable in a court of Florida, but is presently unable to bring it or cause it to be brought;

(ii) the subject matter of the expected action and the person’s interest therein;

(iii) the facts which the person desires to establish by the proposed testimony and the reasons for desiring to perpetuate it;

(iv) the names or a description of the persons expected to be adverse parties and their names and addresses so far as known; and

(v) the names and addresses of the persons to be examined and the substance of the testimony expected to be elicited from each and asking for an order authorizing the petitioner to take the deposition of the persons to be examined named in the petition for the purpose of perpetuating their testimony.

(B) Notice and Service. The petitioner shall thereafter serve a notice on each person named in the petition as an expected adverse party, together with a copy of the petition, stating that the petitioner will apply to the court at a time and place therein for an order described in the petition. At least 20 days before the date of the hearing, the notice shall be served either within or without the county in the manner provided by law for serving of summons but if such service cannot with due diligence be made on any expected adverse party named in the petition, the court may make an order for service by publication or otherwise and shall appoint an attorney for persons not served in the manner provided by law for service of summons who shall represent them and, if they are not otherwise represented, shall cross-examine the deponent.

(C) Order and Examination. If the court is satisfied that the perpetuation of the testimony may prevent a failure or delay of justice, it shall make an order designating or describing the persons whose depositions may be taken and specifying the subject matter of the examination and whether the deposition shall be taken on oral examination or written interrogatories. The deposition may then be taken in accordance with these rules and the court may make orders in accordance with the requirements of these rules. For the purpose of applying these rules to depositions for perpetuating testimony, each reference therein to the court in which the action is pending shall be deemed to refer to the court in which the petition for such deposition was filed.

(D) Use of Deposition. If a deposition to perpetuate testimony is taken under these rules, it may be used in any action involving the same subject matter subsequently brought in any court of Florida in accordance with the provisions of subdivision (c)(3).

(2) Pending Appeal. If an appeal has been taken from a judgment of any court or before the taking of an appeal if the time therefor has not expired, the court in which the judgment was rendered may allow the taking of the depositions of witnesses to perpetuate their testimony for use in the event of further proceedings in the court. In such case the party who desires to perpetuate the testimony may make a motion for leave to take the deposition upon the same notice and service as if the action were pending in the court. The motion shall show the names and addresses of persons to be examined and the substance of the testimony expected to be elicited from each and the reasons for perpetuating the testimony. If the court finds that the perpetuation is proper to avoid a failure or delay in justice, it may make orders of the character provided for by this rule and thereupon the deposition may be taken and used in the same manner and under the same conditions as are prescribed in these rules for depositions taken in actions pending in the court.

(3) Perpetuation Action. This rule does not limit the power of a court to entertain an action to perpetuate testimony.

(e)Rules Governing Depositions of Children Under 16.

(1) The taking of a deposition of a child witness or victim under the age of 16 may be limited or precluded by the court for good cause shown.

(2) The court after proper notice to all parties and an evidentiary hearing, based on good cause shown, may set conditions for the deposition of a child under the age of 16 including:

(A) designating the place of the deposition;

(B) designating the length of time of the deposition;

(D) requiring the submission of questions before the examination;

(E) choosing a skilled interviewer to pose the questions;

(F) limiting the number or scope of the questions to be asked; or

(G) any other conditions the court feels are necessary for the protection of the child.

(3) Good cause is shown based on, but not limited to, one or more of the following considerations:

(A) The age of the child.

(B) The nature of the allegations.

(D) The child has undergone previous interviews for the purposes of criminal or civil proceedings that were recorded either by videotape or some other manner of recording and the requesting party has access to the recording.

(E) The examination would adversely affect the child.

(F) The manifest best interests of the child require the limitations or restrictions.

(4) The court, in its discretion, may order the consolidation of the taking of depositions of a child under the age of 16 when the child is the victim or witness in a pending proceeding arising from similar facts or circumstances.

(f) Supplemental Discovery. If, subsequent to compliance with these rules, a party discovers additional witnesses, evidence, or material which the party would have been under a duty to disclose or produce at the time of such previous compliance, the party shall promptly disclose or produce such witnesses, evidence, or material in the same manner as required under these rules for initial discovery.

(g) Sanctions.

(1) If at any time during the course of the proceedings, it is brought to the attention of the court that a party has failed to comply with an applicable discovery rule or with an order issued pursuant to an applicable discovery rule, the court may:

(A) order such party to comply with the discovery or inspection of materials not previously disclosed or produced;

(B) grant a continuance;

(D) prohibit the party from calling a witness not disclosed or introducing in evidence the material not disclosed; or

(E) enter such order as it deems just under the circumstances.

(2) Willful violation by counsel of an applicable discovery rule or an order issued pursuant thereto may subject counsel to appropriate sanction by the court.

Committee Notes

1991 Amendment, (a)(1) Termination of parental rights proceedings have been added to discovery procedures.

Rule 8.250. EXAMINATIONS, EVALUATION, AND TREATMENT

(a) Child. Mental or physical examination of a child may be obtained as provided by law.

(b) Parent, Guardian, or Other Person Requesting Custody. At any time after the filing of a shelter, dependency, or termination of parental rights petition, when the mental or physical condition, including the blood group, of a parent, guardiancaregiver, legal custodian, or other person requesting custody of a child is in controversy, any party may request the court to order the person to submit to a physical or mental examination by a qualified professional. The order may be made only on good cause shown and after notice to the person to be examined and to all parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made. The person whose examination is sought may, after receiving notice of the request for an examination, request a hearing seeking to quash the request. The court may, on its own motion, order a parent, guardian, or other person requesting custody to undergo such evaluation, treatment, or counseling activities as authorized by law.

Committee Notes

1991 Amendment. This rule allows any party to request an evaluation but provides a mechanism for a hearing to quash the request.

Rule 8.255. GENERAL PROVISIONS FOR HEARINGS

(a) Presence of Counsel. The Bdepartment of Health and Rehabilitative Services must be represented by an attorney at every stage of these proceedings.

(b) Presence of Child. The child has a right to be present at the hearing unless the court finds that the child’s mental or physical condition or age is such that a court appearance is not in the best interest of the child. Any party may file a motion to require or excuse the presence of the child.

(c) Separate Examinations. The child and the parents, caregivers, or legal custodians of the child may be examined separately and apart from each other.

(e)(d) Examination of Child; Special Protections.

(1) Testimony by Child. A child may be called to testify in open court by any party to the proceeding, or the court, and may be examined or cross-examined.

(2) In-Camera Examination.

(A) Upon motion and hearing, the child may be examined by the court outside the presence of other parties as provided by law. The court shall assure that proceedings are recorded, unless otherwise stipulated by the parties.

(B) The motion may be filed by any party or the trial court on its own motion.

(C) The court shall make specific written findings of fact, on the record, as to the basis for its ruling. These findings may include but are not limited to:

(i) the age of the child;

(ii) the nature of the allegation;

(iii) the relationship between the child and the alleged abuser;

(iv) the likelihood that the child would suffer emotional or mental harm if required to testify in open court;

(v) whether the child’s testimony is more likely to be truthful if given outside the presence of other parties;

(vi) whether cross-examination would adversely affect the child; and

(vii) the manifest best interest of the child.

(D) The child may be called to testify by means of closed-circuit television or by videotaping as provided by law.

(d)(e) Invoking the Rule. Prior to the examination of any witness the court may, and on the request of any party shall, exclude all other witnesses. The court may cause witnesses to be kept separate and to be prevented from communicating with each other until all are examined.

(e)(f) Continuances. The court may grant a continuance before or during a hearing for good cause shown by any party.

$Xg) Record. A record of the testimony in all hearings shall be made by an official court reporter, a court approved stenographer, or a recording device. The records of testimony shall be preserved as required by law. Official records of testimony shall be transcribed only on order of the court.

(g)(h) Notice. Where these rules do not require a specific notice, all parties will be given reasonable notice of any hearing.

(h)(i) Masters. Pursuant to Florida Rule of Civil Procedure 1.490, both general and special masters may be appointed to hear issues involved in proceedings under this part.

Committee Notes

1991 Amendment, (b) This change allows a child to be present instead of mandating the child’s presence when the child’s presence would not be in his or her best interest. The court is given the discretion to determine the need for the child to be present.

1992 Amendment. This change was made to reflect a moderated standard for in camera examination of a child less rigid than the criminal law standard adopted by the committee in the 1991 rule revisions.

Rule 8.290. DEPENDENCY MEDIATION

(a) Definitions. The following definitions apply to this rule:

(1) “Dependency matters” means proceedings arising under Part III (Dependency Cases), Part -V- (Children in Foster — Care), and — Part—WE—(Termination—of—Parental Rights),-of-Chapter 39, Florida Statutes.

(2) “Dependency mediation” means mediation of dependency matters.

(3) “Mediation” means a process whereby a neutral third person called a mediator acts to encourage and facilitate the resolution of a dispute between two or more parties. It is an informal and nonadversarial process with the objective of helping the disputing parties reach a mutually acceptable and voluntary agreement. In mediation, decision-making authority rests with the parties. The role of the mediator includes, but is not limited to, assisting the parties in identifying issues, fostering joint problem-solving, and exploring settlement alternatives.

(b) Applicability. This rule applies only to mediation of dependency matters.

(c) Compliance with Statutory Time. Requirements. Dependency mediation shall be conducted in compliance with the statutory time requirements for dependency matters unless waived by all parties and approved by the court.

(d) Referral. Except as provided by this rule, all matters and issues described in subsection (a)(1) may be referred to mediation. All referrals to mediation shall be in written form, shall advise the parties of their right to counsel, and shall set a date for hearing before the court to review the progress of the mediation. The mediator or mediation program shall be appointed by the court or stipulated to by the parties. In the event the court refers the matter to mediation, the mediation order shall address all applicable provisions of this rule. The mediation order shall be served on all parties and on counsel pursuant to the provisions of the Florida Rules of Juvenile Procedure.

(e) Appointment of the Mediator.

(1) Court Appointment. The court, in the order of referral to mediation, shall appoint a certified mediator selected by rotation or by such other procedures as may be adopted by administrative order of the chief judge in the circuit in which the action is pending.

(2) Party Stipulation. Within ten days of the filing of the order of referral to mediation, the parties may agree upon a stipulation with the court designating:

(A) another certified mediator of dependency matters to replace the one selected by the judge; or

(B) a mediator who does not meet the certification requirements of these rules but who, in the opinion of the parties and upon review by the presiding judge, is otherwise qualified by training or experience to mediate all or some of the issues in the particular ease.

(f) Fees. Dependency mediation referrals may be made to a mediator or mediation program which charges a fee. Any order of referral to a mediator or mediation program charging a fee shall advise the parties that they may timely object to mediation on grounds of financial hardship. Upon the objection of a party or the court’s own motion, the court may, after considering the objecting party’s ability to pay and any other pertinent information, reduce or eliminate the fee.

(g) Objection to Mediation. Within 10 days of the filing of the order of referral to mediation, any party or participant ordered to mediation may make a written objection to the court about the order of referral if good cause for such objection exists. If a party objects, mediation shall not be conducted until the court rules on the objection.

(h) Scheduling. The mediation conference may be held at any stage of the proceedings. Unless otherwise scheduled by the court, the mediator or the mediation program shall schedule the mediation conference.

(i) Disqualification of the Mediator. Any party may move to enter an order disqualifying a mediator for good cause. If the court rules that a mediator is disqualified from mediating a case, an order shall be entered setting forth the name of a qualified replacement. Nothing in this provision shall preclude mediators from disqualifying themselves or refusing any assignment.

(j) Substitute Mediator. If a mediator agreed upon by the parties or appointed by a court cannot serve, a substitute mediator can be agreed upon or appointed in the same manner as the original mediator. A mediator shall not mediate a case assigned to another mediator without the agreement of the parties or approval of the court. A substitute mediator shall have the same qualifications as the original mediator.

(k) Discovery. Unless stipulated by the parties or ordered by the court, the mediation process shall not suspend discovery.

(,l) Appearances.

(1) Order Naming or Prohibiting Attendance of Parties. The court shall enter an order naming the parties and the participants who must appear at the mediation and any parties or participants who are prohibited from attending the mediation. Additional participants may be included by court order or by mutual agreement of all parties.

(2) Physical Presence of Adult Parties and Participants. Unless otherwise agreed to by the parties or ordered by the court, any party or participant ordered to mediation shall be physically present at the mediation conference. Persons representing an agency, department, or program must have full authority to enter into an agreement which shall be binding on that agency, department, or program. In the discretion of the mediator, and with the agreement of the attending parties, dependency mediation may proceed in the absence of any party or participant ordered to mediation.

(3) Appearance of Counsel. In the discretion of the mediator, and with the agreement of the attending parties, dependency mediation may proceed in the absence of counsel unless otherwise ordered by the court.

(4) Appearance of Child. The court may prohibit the child from appearing at mediation upon determining that such appearance is not in the best interest of the child. No minor child shall be required to appear at mediation unless the court has previously determined by written order that it is in the child’s best interest to be physically present. The court shall specify in the written order of referral to mediation any special protections necessary for the child’s appearance.

(5) Sanctions for Failure to Appear. If a party or participant ordered to mediation fails to appear at a duly-noticed mediation conference without good cause, the court, upon motion of any party or on its own motion, may impose sanctions. Sanctions against the party or participant failing to appear may include one or more of the following: contempt of court, an award of mediator fees, an award of attorney fees, an award of costs, or other remedies as deemed appropriate by the court.

(m) Caucus with Parties and Participants. During the mediation session, the mediator may meet and consult privately with any party, participant, or counsel.

(n) Continuances. The mediator may end the mediation session at any time and may set new times for reconvening the mediation. No further notification shall be required for parties or participants present at the mediation session.

(o) Report on Mediation.

(1) If agreement is reached as to all or part of any matter or issue, including legal or factual issues to be determined by the court, such agreement shall be immediately reduced to writing, signed by the attending parties, and promptly submitted to the court by the mediator with copies to all parties and counsel.

(2)If the parties do not reach an agreement as to any matter as a result of mediation, the mediator shall report the lack of an agreement to the court without comment or recommendation.

(p) Court Hearing and Order upon Mediated Agreement. Upon receipt of a full or partial mediation agreement, the court shall hold a hearing and enter an order accepting or rejecting the agreement consistent with the best interest of the child. The court may modify the terms of the agreement with the consent of all parties to the agreement.

(q) Imposition of Sanctions upon Breach of Agreement. In the event of any breach or failure to perform under the court-approved agreement, the court, upon a motion of any party or upon its own motion, may impose sanctions. The sanctions may include contempt of court, vacating the agreement, imposition of costs and attorney fees, or any other remedy as deemed appropriate by the court.

Committee Notes

1997 Adoption. In considering the provision regarding the appearance of the child found in subsection ©(4), the Committee considered issues concerning the child’s right to participate and be heard in mediation and the need to protect the child from participating in proceedings when such participation would not be in the best interest of the child. The Committee has addressed only the issue of mandating participation of the child in mediation. In circumstances where the court has not mandated that the child appear in mediation, the Committee believes that, in the absence of an order prohibiting the child from mediation, the participation of the child in mediation will be determined by the parties.

Whenever the court, pursuant to subdivision (p) determines whether to accept, reject, or modify the mediation agreement, the Committee believes that the court shall act in accordance with the confidentiality requirements of chapter 44, Florida Statutes.

B. DEPENDENCY-PRQGEEDINGS-TAKING-GHÍLDREN-INTO CUSTODY AND SHELTER HEARINGS

Rule 8.305. SHELTER PETITION, HEARING, AND ORDER

(a) Shelter Petition. If a child has been or is to be placed in a shelter after being taken into-custody removed from the home and maintained in an out-of-home placement for a period longer than 24 hours, the person requesting placement shall file a written petition which shall:

(1) specify the name, address, and sex of the child or, if unknown, designate the child by any name or description by which he or she can be identified with reasonable certainty;

(2) specify the name and address, if known, of the child’s parents or legal custodian and how each was notified of the shelter hearing;

(3) if the child has been removed from the home, the date and time of the removal;

(2)(4) specify that the child is of an age subject to the jurisdiction of the court;

(3X5) state the reasons why the child needs to be placed in a shelter;

(6) the reasonable efforts, if any, that were made by the department to prevent or eliminate the need for the removal or continued removal of the child from the home. If no such efforts were made, a description of the emergency which existed that prevented these efforts;

(4)(7) recommend where the child is to be placed or the agency to be responsible for placement; and

(5)(8) be signed by the petitioner and, if represented by counsel, by the petitioner’s attorney.

(b) Shelter Hearing.

(1) The parents or legal custodians of the child shall be given actual notice of the date, time, and location of the emergency shelter hearing. If the parents are outside the jurisdiction of the court, are not known, cannot be located, or refuse or evade service, they shall be given such notice as best ensures their actual knowledge of the date, time, and location of the emergency shelter hearing. If the parents or legal custodians are not present at the hearing, the person providing, or attempting to provide, notice to the parents or legal custodians shall advise the court in person or by sworn affidavit of the attempts made to provide notice and the results of those attempts.

(2) The court shall conduct an informal hearing on the petition within the time limits as provided by law. The court shall determine at the hearing the existence of probable cause to believe the child is dependent and whether the other criteria provided by law for placement in a shelter have been met.

(3) The issue of probable cause shall be determined in a nonadversary manner, applying the standard of proof necessary for an arrest warrant.

(4) At the hearing all interested persons present shall have an opportunity to be heard and present evidence on the criteria for placement as provided by law.

(5) The court may base its determination on sworn complaint, testimony, or affidavit and may hear all relevant and material evidence, including oral and written reports, to the extent of its probative value even though it would not be competent at an adjudicatory hearing.

(6) The court shall advise the parent or custodian of:

(A) the right to be represented by counsel as provided by law;

(B) the reason for the child being in custody and why continued placement is requested; and

(D) the time, date, and location of the next hearing and of the importance of the parents’ or legal custodians’ active participation in subsequent proceedings and hearings.

(7) The court shall appoint:

(A) a guardian ad litem to represent the child unless the court finds such representation is unnecessary; and

(B) an attorney for indigent parents or legal custodians unless waived by the parent or legal custodian.

(8) The court shall determine visitation rights absent a clear and convincing showing that visitation is not in the best interest of the child.

(9) If the shelter hearing is conducted by a judge other than the juvenile court judge, the juvenile court judge shall hold a shelter review on the status - of the child within two working days after the shelter hearing.