G.T. v. Department of Children and Family Services, No. 1D06-0280.

CourtCourt of Appeal of Florida (US)
Writing for the CourtBenton
Citation935 So.2d 1245
Docket NumberNo. 1D06-0280.
Decision Date15 August 2006
PartiesG.T., a child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Appellee.
935 So.2d 1245
G.T., a child, Appellant,
v.
DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Appellee.
No. 1D06-0280.
District Court of Appeal of Florida, First District.
August 15, 2006.

Page 1246

Mary Kathryn Brennan, Jacksonville Area Legal Aid, Inc., Jacksonville, for Appellant.

W. Dekle Day, Assistant General Counsel, Jacksonville, for Appellee.

Wendie Michelle Cooper, Appellate Counsel, Guardian Ad Litem Program, Orlando.

BENTON, J.


G.T., a teenager in the custody of the Department of Children and Family Services (DCFS), appeals the circuit court order involuntarily committing him to a residential mental health treatment facility. At an evidentiary hearing conducted in purported conformity with Florida Rule of Juvenile Procedure Rule 8.350, no competent evidence was adduced to show that G.T. had been "diagnosed with a mental, emotional, or behavioral disorder of sufficient duration to meet one of the diagnostic categories specified in the most recent edition of the Diagnostic and Statistical Manual of the American Psychiatric Association." § 394.492(5), Fla. Stat. (2005). Because DCFS offered nothing but hearsay to prove "an emotional disturbance as defined in s. 394.492(5) or a serious emotional disturbance as defined in s. 394.492(6)," § 39.407(6)(a)(3.), Fla. Stat. (2005), we reverse.

A year after DCFS took custody of G.T. and two months before DCFS filed a motion seeking to place him in an inpatient residential mental health treatment facility, DCFS terminated G.T.'s parents' parental rights. Before the motion to confine him in the mental health treatment facility was heard, a guardian ad litem and counsel were appointed for G.T. As required by statute,1 he was "assessed for

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suitability for residential treatment by a qualified evaluator who has conducted a personal examination and assessment of the child," before the motion seeking residential mental health treatment was filed. DCFS attached to its motion a report entitled "Initial Suitability Assessment For Residential Treatment," attributed to Richard Filippi, a licensed psychologist.2

Commitment proceedings under Rule 8.350 of the Florida Rules of Juvenile Procedure are designed to give a reliable answer to the question whether the dependent child proceeded against is suitable for residential mental health treatment:

(4) If the department seeks to place the child in a residential treatment center or hospital, the department shall immediately file a motion for placement of the child with the court. This motion shall include a statement as to why the child is suitable for this placement and why less restrictive alternatives are not appropriate and also shall include the written findings of the qualified evaluator.

....

(11) Hearing on Placement.

....

(B) All parties shall be permitted to present evidence and witnesses concerning the suitability of the placement.

(C) If the court determines that the child is not suitable for residential treatment, the court shall order the department to place the child in the least restrictive setting that is best suited to meet the child's needs.

Fla. R. Juv. P. 8.350(a)(4), (11) (2005) (emphasis supplied). "`Suitable for residential treatment' or `suitability'" is defined in section 39.407(6)(a)(3.), Florida Statutes (2005), as a

determination concerning a child or adolescent with an emotional disturbance as defined in s. 394.492(5) or a serious emotional disturbance as defined in s. 394.492(6) that each of the following criteria is met:

a. The child requires residential treatment.

b. The child is in need of a residential treatment program and is expected to benefit from mental health treatment.

c. An appropriate, less restrictive alternative to residential treatment is unavailable.

DCFS has the burden to prove that a dependent child has "an emotional disturbance

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as defined in s. 394.492(5)" or "a serious emotional disturbance as defined in s. 394.492(6)," and that the requirements of section 39.407(6)(a)(3.)(a.-c.) are met,3 by clear and convincing evidence, a burden DCFS acknowledges it bears.4

At G.T.'s hearing, DCFS called his case manager, a supervisor at the transitional group home in which G.T. had been residing, and G.T.'s family services counselor. These witnesses testified that G.T. was disrespectful, defiant and verbally aggressive with staff, had stolen "hygiene items" from a supply closet that were for all the children's use,5 returned "home" late,6 kept his room messy, and refused therapy offered in the transitional group home. The DCFS case manager also testified that these behaviors were similar to those G.T. exhibited in his prior placements.7 The guardian ad litem agreed that G.T. was in need of therapeutic services, and, although she believed G.T. would benefit more from a therapeutic group home than an inpatient program, endorsed the residential treatment recommendation.

Dr. Filippi, author of the suitability assessment report, did not appear at the hearing, but DCFS offered his report into evidence. G.T. objected to its admission on grounds that DCFS had laid no foundation for the report's admissibility or established who wrote the report or the author's qualifications, and that the report was hearsay and its admission would constitute a violation of G.T.'s confrontation rights under the state and federal constitutions. Over these objections, the trial court received the report, ruling that, while the report was hearsay, it was nevertheless admissible.

G.T. called three witnesses, including the guidance counselor at his high school and his art teacher. They testified that G.T. was doing well in school at the time of the hearing (although he was in "grade recovery" for two classes from the prior grading period), had no disciplinary problems, no impulse control problems, no problems being disrespectful to teachers, and had made friends with students who were also good student citizens.8

Granting DCFS's motion, the trial court found that G.T. "is a danger to himself and to others and suffers from a severe emotional disturbance," and directed that G.T. be placed in residential treatment as soon as possible. In ruling that G.T. was emotionally

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disturbed,9 the trial court seemed to reject G.T.'s argument that the "emotional disturbance" criteria for involuntary commitment of dependent children require a diagnosis by a psychiatrist or psychologist. But the statute provides that the "qualified evaluator" must be "a psychiatrist or a psychologist licensed in Florida," § 39.407(6)(b), Fla. Stat. (2005), and contemplates expert opinion attesting to a diagnosis that comports with a disorder specified in the Diagnostic and Statistical Manual of Mental Disorders of the American Psychiatric Association. See § 394.492(5), (6), Fla. Stat. (2005).

DCFS offered no psychiatrist's or psychologist's expert opinion testimony that G.T. was "emotionally disturbed" or "seriously emotionally disturbed." DCFS had to prove one or the other in order to show that G.T. was "suitable" for a mental health treatment placement.10 Dr. Filippi's report was the only possible basis for any finding that G.T. was "diagnosed with a mental, emotional, or behavioral disorder

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of sufficient duration to meet one of the diagnostic categories specified in the most recent edition of the Diagnostic and Statistical Manual." Along with Dr. Filippi's own findings (themselves hearsay), the report also contained hearsay statements of others.

Acknowledging that the psychologist's report was hearsay, the trial court ruled: "Dependency proceedings in Florida and in most sister states commonly involve the court's consideration of reliable hearsay of this kind without the testimony of the declarant." The learned trial judge's analysis makes no distinction between, e.g., placing a dependent child with one set of foster parents rather than another, on the one hand, see Fla. R. Juv. P. 8.340(a) (2005),11 and, on the other, consigning a dependent child who may be doing satisfactorily in school to a mental health treatment facility under section 39.407(6), Florida Statutes (2005), and Florida Rule of Juvenile Procedure 8.350 (2005).

But an important distinction exists. Confinement on account of mental illness, like imprisonment for crime or preventive detention under the Jimmy Ryce Act, entails a serious deprivation of individual liberty. See Kephart v. Hadi, 932 So.2d 1086, 1090 (Fla. June 8, 2006) ("As we said in State v. Goode, 830 So.2d 817, 825-26 (Fla.2002), `[c]ivil commitment proceedings involve a serious deprivation of liberty and, thus, such proceedings must comply with the due process clauses of the Florida and United States Constitutions.' We have also recognized that confinement under the Act implicates an individual's liberty interest in being free from physical restraint. See Westerheide v. State, 831 So.2d 93, 104 (Fla.2002)."); Ibur v. State, 765 So.2d 275, 276 & n. 1 (Fla. 1st DCA 2000) ("Because involuntary commitment is a substantial deprivation of liberty at which fundamental due process protections must attach, the patient cannot be denied the right to be present, to be represented by counsel, and to be heard.") (citing In re Beverly, 342 So.2d 481, 489 (Fla.1977) ("The seriousness of the deprivation of liberty and the consequences which follow in adjudication of mental illness make imperative strict adherence to the rules of evidence generally applicable to other proceedings in which an individual's liberty is in jeopardy.")).

Concerns of this kind may account at least in part for our supreme court's statement in M.W. v. Davis, 756 So.2d 90, 109 (Fla.2000),12 that "we cannot eschew the

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necessity for a hearing before a dependent child is placed in residential treatment against his wishes." The M.W. court also noted:

Ironically,...

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1 practice notes
  • Shen v. Parkes, No. 4D11–4271.
    • United States
    • Court of Appeal of Florida (US)
    • October 31, 2012
    ...hearsay objection to the report should have been sustained as the rules of evidence applied); G.T. v. Dep't. of Children & Family Servs., 935 So.2d 1245, 1252 (Fla. 1st DCA 2006) (observing that requirement in rules of juvenile procedure that court consider written findings of an evaluator ......
1 cases
  • Shen v. Parkes, No. 4D11–4271.
    • United States
    • Court of Appeal of Florida (US)
    • October 31, 2012
    ...hearsay objection to the report should have been sustained as the rules of evidence applied); G.T. v. Dep't. of Children & Family Servs., 935 So.2d 1245, 1252 (Fla. 1st DCA 2006) (observing that requirement in rules of juvenile procedure that court consider written findings of an evaluator ......

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