DCFS v. Natural Parents of JB, No. 98-2255.

• Court: Court of Appeal of Florida (US)
• Writing for the Court: FARMER, J.
• Citation: 736 So.2d 111
• Decision Date: 23 June 1999
• Docket Number: No. 98-2255.
• Parties: DEPARTMENT OF CHILDREN AND FAMILY SERVICES, STATE OF FLORIDA, Petitioner, v. The NATURAL PARENTS OF J.B., Respondents.

736 So.2d 111

DEPARTMENT OF CHILDREN AND FAMILY SERVICES, STATE OF FLORIDA, Petitioner,
v.
The NATURAL PARENTS OF J.B., Respondents

No. 98-2255.

District Court of Appeal of Florida, Fourth District.

June 23, 1999.

736 So.2d 112

Robert A. Butterworth, Attorney General, Tallahassee, and Charles M. Fahlbusch, Assistant Attorney General, Fort Lauderdale, for petitioner

Bruce Rogow and Beverly A. Pohl of Bruce S. Rogow, P.A., and Thomas M. Ryan, Chandler, AZ, for respondents.

FARMER, J.

The issue in this termination of parental rights (TPR) proceeding is whether a Florida statute closing all hearings throughout the case to the public and media, requiring instead that the case be adjudicated behind closed courthouse doors, is unconstitutional. We uphold the statute and conclude that the state has the power to close such hearings, grant certiorari and quash the order of the circuit court.

The underlying facts of the case and the issues they have spawned are of only marginal import to today's question, but we shall set the scene. Currently pending are criminal cases against the parents for child abuse and also the present case to end their parental rights. The basis of the state's cases is not the more familiar kind of child abuse in which parents negligently fail to provide ordinary care, food, health care and housing. Instead, the state has alleged that these parents intentionally caused their 11-year old daughter to become ill enough to be repeatedly hospitalized. We are not called upon at this time to pass upon the merits of the case. Our only concern today is whether the entire TPR proceeding can validly be closed.

DCFS initially brought this civil action against the natural parents to have their child declared dependent and in need of care. The parents in turn moved to close the dependency proceedings and to enjoin all concerned from releasing information about the proceeding to anyone. They argued that it was against the child's interests to be exposed to the press and media and that it was in the best interests of the child that the proceedings be closed. At that point, DCFS took no stance on the closure issue, while the child's guardian supported it. A psychologist who had treated the child also opined that it was "imperative" that the dependency proceedings be closed and that the case be discussed only in the courtroom. In later hearings, a pediatric expert thought that a videotape deposition of the child would be very damaging. Also later the parents filed a second motion to impose a "gag" order to prohibit the release of any information, especially referring to leaks and gossip. In time, the trial court denied the motion to close court proceedings but without prejudice to the parents to move to close any later proceeding in the case if ongoing media coverage required the court to reconsider its ruling at a later date. The court also denied the motion for the gag order without prejudice.

Sometime thereafter, DCFS decided to change the character of the proceeding from a dependency case and filed motions to terminate the parental rights of respondents. With the case thus amended to a TPR proceeding, the requirements of section 39.467 came into effect.¹ That statute provides in part that "[a]ll hearings involving termination of parental rights are confidential and closed to the public." The parents response was, in part, to change their previous stance on closing the proceedings; they filed a motion to declare

736 So.2d 113

the statute invalid on the grounds that it violates the Sixth and Fourteenth Amendments to the United States Constitution. The effect of declaring the closing statute unconstitutional would be, of course, to open up the TPR hearings to the public and media

At the hearing on the motion, the parents likened TPR cases to criminal prosecutions and contended that, like criminal prosecutions,² TPR cases are subject to the imperative of being open to the public and media. They argued that the state should be required to show a compelling governmental interest in closing an entire TPR proceeding. DCFS responded by comparing these cases to some dependency and all adoption cases, for which Florida courts have found legislative closure valid.³ The agency argued that unlike criminal prosecutions, where there is a specific constitutional right to open hearings, the primary concern of TPR cases is the best interests of children, interests which usually require closed hearings.

In reaching its decision on the constitutional question, the trial court accepted the proposition that TPR cases are to be treated like criminal prosecutions. Proceeding from that premise, the court stated that "any per se rule of closure for criminal proceedings is unconstitutional." Noting the supreme court's decision in In re Adoption of H.Y.T., 458 So.2d 1127 (Fla. 1984), the trial court contrasted TPR proceedings with adoptions, finding substantial differences:

"In adoption[s] ... prospective parents are not in danger of losing any existing rights. In contrast, parents in [TPR] proceedings are faced with a far greater risk of loss.... `[F]ew consequences of judicial action are so grave as the severance of natural family ties.'"

Because the parents in a TPR proceeding face such grave consequences, the trial court reasoned that they "should have a right" to have the court determine whether the hearings should be public.

The trial court further noted that the legislature has now permitted some dependency proceedings to be public, see section 39.408(2)(c), and that such proceedings often precede TPR cases and "involve disclosure of much of the same information." The court concluded that open hearings in TPR cases would promote "fairness and public confidence in the judicial system." The trial court also specifically took notice of the extensive media attention to which this case has already been subjected and concluded that the prior media scrutiny "severely undermines any privacy interests the state or the minor child might have." The trial court therefore declared section 39.467(4) facially overbroad and thus unconstitutional.

We begin our analysis of the trial court's rationale and conclusion with some well-worn principles of constitutional adjudication. Statutes are presumed to be valid and not unconstitutional. Gardner v. Johnson, 451 So.2d 477 (Fla.1984). Courts are required to concede every presumption in favor of the validity of a statute. Griffin v. State, 396 So.2d 152 (Fla.1981). One who challenges the constitutionality of a statute has the burden of demonstrating its invalidity. State v. Bussey, 463 So.2d 1141 (Fla.1985) (burden is on challenger to demonstrate that law does not bear reasonable relationship to proper state objective). Only a clear and demonstrated usurpation of power will authorize judicial interference with legislative action. Eastern Air Lines Inc. v. Department of Revenue, 455 So.2d 311 (Fla.), appeal dismissed, 474 U.S. 892, 106 S.Ct. 213, 88

736 So.2d 114

L.Ed.2d 214 (1985). It is therefore the duty of an appellate court to uphold the validity of a statute in all cases where that result can be lawfully reached. Horsemen's Benevolent and Protective Ass'n v. Division of Pari-Mutuel Wagering Department of Business Regulations, 397 So.2d 692 (Fla.1981)

We turn first to the trial court's major premise, that TPR cases are indistinguishable from criminal prosecutions. We have had previous occasion to consider this very same premise. In Ostrum v. Dep't of Health & Rehabilitative Services of the State of Florida, 663 So.2d 1359 (Fla. 4th DCA 1995), we addressed the contention that, because TPR cases are treated like criminal cases, counsel for a parent who concludes that no substantial appellate issue can be raised on appeal and who thus desires to withdraw must comply with the Anders procedure employed in criminal appeals.⁴ In rejecting that premise, we said:

"TPR cases are not criminal in nature. They are civil proceedings which happen to affect the substantial interests of the parents and children involved. Parents are entitled to appointed counsel at public expense in TPR proceedings. In the Interest of D.B., 385 So.2d 83, 90-1 (Fla. 1980) (due process clauses of U.S. and Florida constitutions require appointment of counsel for indigent parents when permanent termination of parental rights may result); see also § 39.465(1)(a), Fla. Stat. (1993) and Fla. R. Juv. P. 8.320. The right to counsel in Anders is based on the Sixth Amendment, but the right to counsel in TPR cases does not arise under the Sixth Amendment. D.B., 385 So.2d at 89 (`Right to counsel in dependency proceedings, on the other hand, is governed by due process considerations, rather than the sixth amendment.').

"When a final order terminating parental rights has been entered, as in any civil case, the right to appeal is tempered by the record in the trial court: i.e. whether it contains any good faith possibilities for arguing error. If no error appears in good faith to appointed counsel, there does not appear any reason why

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