B.M. v. Dobuler

• Decision Date: 19 March 2008
• Docket Number: No. 3D07-2734.,3D07-2734.
• Citation: 979 So.2d 308
• Parties: B.M., a juvenile, Petitioner, v. Dale DOBULER, Super. Miami-Dade, etc., et al., Respondents.
• Court: Florida District Court of Appeals

979 So.2d 308

B.M., a juvenile, Petitioner, v. Dale DOBULER, Super. Miami-Dade, etc., et al., Respondents.

No. 3D07-2734.

District Court of Appeal of Florida, Third District.

March 19, 2008.

Bennett H. Brummer, Public Defender, and Billie Jan Goldstein, Assistant Public Defender, for petitioner.

Bill McCollum, Attorney General, and Lane Hodes, Assistant Attorney General, for respondents.

Before GREEN, SHEPHERD and ROTHENBERG, JJ.

PER CURIAM.

B.M., a child, petitioned this Court for a writ of habeas corpus on the ground that she was being held illegally in secure detention pending disposition of a violation by her of the conditions of her probation. Although her petition, along with several others involving the same issue recently filed with this Court, has become moot, we address the issue because of its frequent continued recurrence before this Court. A.K. v. Dobuler, 951 So.2d 989, 990 (Fla. 3d DCA 2007) (noting that although time sensitivity required an earlier grant of habeas corpus, a later opinion was necessary to "give some guidance to the juvenile bench and bar"); R.G. v. State, 817 So.2d 1019, 1020 (Fla. 3d DCA 2002) ("We would think that the message to this trial court judge should be clear that he too must follow the law.").

The detention of juveniles in Florida is governed by chapter 985, Florida Statutes. See ch. 985, pt. V, Fla. Stat. (2007). Part III of chapter 985 expressly states that the sole means by which a juvenile judge may take a child into custody is "[p]ursuant to an order of the circuit court issued under this chapter." § 985.101, Fla. Stat. (2007); see also A.K., 951 So.2d at 991 ("In Florida, the detention of juveniles is governed completely by statute."); accord R.G., 817 So.2d at 1020. Section 985.24 of the Florida Statutes, entitled "Use of detention; prohibitions," clearly and unambiguously sets forth the grounds on which a child may be detained. See § 985.24(1)(a)-(e), Fla. Stat. (2007). Absent a statutory exception, see § 985.255(2), Fla. Stat. (2007), an order placing a child in detention must be based "primarily" upon at least one of those grounds and supported by a proper "risk assessment of the child." § 985.245(1), Fla. Stat. (2007); R.W. v. Soud, 639 So.2d 25, 26-27 (Fla.1994) ("[A]bsent the findings required by subsection (1) [of section 985.24] and the risk assessment required by [section 985.245(1)], detention of a juvenile is not permitted either before or after adjudication.").¹

The only other authority to be found in chapter 985 authorizing a juvenile court judge to hold a child in custody or "secure detention" prior to adjudication or disposition appears in section 985.037 of the Florida Statutes, where the legislature afforded the juvenile court "limit[ed]" powers to "punish [a] child for contempt for interfering with the court or with court administration, or for violating any provision of this chapter or order of the court relative thereto." § 985.037(1), Fla. Stat. (2007) (emphasis added); see also R.G., 817 So.2d at 1019 (holding that "[s]ection 985.213(2)(a) [now renumbered as section 985.245(1)] is clear in its requirement that all determinations and court orders regarding detention be based on a risk assessment of the child[,]" but noting that the trial court also may base an order of detention on the contempt statute).

This case involves an unmanageable fourteen-year-old child. In August 2006, the child, B.M., was charged with misdemeanor battery for kicking her mother in the leg during an argument. At the end of September, she accepted a plea in which she agreed to attend a state-sponsored Juvenile Alternative Sanctions System (JASS) diversion program in lieu of trial. When, on November 6, 2006, the court was advised that B.M. had failed to complete the program, it set her case for disposition on January 22, 2007. In the next thirty days, three "pick-up orders" were issued for B.M. for various infractions, resulting in the disposition hearing being rescheduled for December 19, 2006. B.M. voluntarily appeared in court on that date and pled guilty to the misdemeanor charge. The trial court sentenced her to probation, the conditions of which included that she "stay at her mother's home" and "abide by all the other rules and regulations [of] her probation officer and her mother."

Not surprisingly, B.M. had no interest in staying home. Between January and July of 2007, the juvenile court issued four more "pick-up orders" at the behest of her parents or her juvenile probation officer. Just as before, B.M. refused to report to home or school. During this time, she also was tested once for drugs, and the report came back negative. Eventually, B.M.'s irresponsibility drew an affidavit of violation of probation from her juvenile probation officer. In July, B.M.—again appearing voluntarily before the court—pled guilty, and was sentenced to attend Dade Marine Institute, a nonresidential commitment program, abide a 7:00 p.m. curfew at her mother's house, attend counseling, and comply with other conditions. Thirteen days later, B.M. left home again, and between her disposition in July and the month of September, she drew another two "pick-up orders" and a second affidavit of violation of probation.

A hearing on this violation was set for October 22, 2007. B.M. again appeared voluntarily and again admitted to violating her probation. Disposition was set for November 9, 2007. As the hearing concluded, the judge summarily ordered her from the courtroom to secure detention pending disposition. When her counsel objected, the court responded that it would issue an order to show cause why B.M. should not be held in contempt of court for her unruly behavior. Two days later, the rule issued. But before a hearing was held on the show cause order, the court issued an Order of Detention. After chronicling B.M.'s conduct, the court stated:

This unfortunate history of this child running away, staying away from home for days at a time with people the Mother is unaware of is dangerous and risky behavior. The child has shown a willful, wanton disregard for all prior orders of the Court notwithstanding the Court, and DJJ's efforts to modify the Respondent's behavior. Both the Court and the Mother are afraid that this child will continue to run and eventually disappear and not return home, thereby subjecting her to the possibility of being killed or injured while she is out on the street. Further, there is a great possibility that the child will commit new law violations in order to support herself on the street or at the request of others who may be supporting her. This is an untenable and unacceptable risk both to the child and to the community.

Based on this child's extensive record of absconding from home and her [u]tter disregard of the Court process, the Court has determined that it is in the best interest of the child to be detained until the date of her next hearing, which is the disposition on her second admission to a violation of probation scheduled for November 9th at 9:00 a.m.

There is no evidence that the court was favored with a statutory risk assessment instrument sufficient to justify upgrading B.M.'s status to secure detention before its summary dispatch of B.M. to a secure facility. The only risk assessment instrument provided to us—prepared December 8, 2006 in connection with a "pick-up order"—gives B.M. a score of one point for the shin kick she gave her mother.² A period of eighteen days would have passed between B.M.'s initial placement in secure detention on October 22, 2007, and her disposition on November 9, 2007.

On October 26, 2007, B.M. filed an emergency petition for writ of habeas corpus seeking release. On October 31, 2007, we granted the writ and ordered her immediate release from secure detention.

DISCUSSION

Florida's juvenile justice system is—for better or worse—a creature of statute. See §§ 985.01-.807, Fla. Stat. (2007). This arrangement imposes a unique set of limitations on the ability of the circuit judges in this state to control juvenile delinquents. While the circuit judges of this state have a panoply of inherent powers to impose restraints on recalcitrant adult criminal defendants, the power of those same judges to detain a child respondent in a juvenile proceeding conducted pursuant to chapter 985 of the Florida Statutes is strictly limited by law. R.G., 817 So.2d at 1020; see also § 985.02(4)(a), Fla. Stat. (2007) ("The Legislature finds that detention should be used only when less restrictive interim placement alternatives prior to adjudication and disposition are not appropriate.").

In this case, B.M. argued to us that, under the circumstances, a juvenile court judge only had the power to detain her pursuant to a properly conducted contempt proceeding initiated pursuant to section 985.037(4)(b), Florida Statutes (2007). In that section, the legislature established the following procedure for juvenile contempt proceedings:

(b) If a child is charged with indirect contempt of court, the court must hold a hearing within 24 hours to determine whether the child committed indirect contempt of a valid court order. At the hearing, the following due process rights must be provided the child:

1. Right to a copy of the order to show cause alleging facts supporting the contempt charge.

2. Right to an explanation of the nature and the consequences of the proceedings.

3. Right to legal counsel and the right to have legal counsel appointed by the court if the juvenile is indigent under s. 985.033.

4. Right to confront witnesses.

5. Right to present witnesses.

6. Right to have a transcript or record of the proceeding.

7. Right to appeal to an appropriate court.

§ 985.037(4)(b), Fla. Stat. (2007). Although the judge issued an order to show cause in this case, a hearing was never held on the rule issued. No statutory safeguards were afforded.³

In its response, the State conceded that the summary detention of B.M. could...