In re Amendments to the Fla. Rules of Juvenile Procedure

• Decision Date: 21 January 2016
• Docket Number: No. SC15–150.,SC15–150.
• Citation: 191 So.3d 257 (Mem)
• Parties: In re AMENDMENTS TO the FLORIDA RULES OF JUVENILE PROCEDURE.
• Court: Florida Supreme Court

191 So.3d 257 (Mem)

In re AMENDMENTS TO the FLORIDA RULES OF JUVENILE PROCEDURE.

No. SC15–150.

Supreme Court of Florida.

Jan. 21, 2016.

Robert William Mason, Chair, Juvenile Court Rules Committee, Jacksonville, FL; Deborah Anne Schroth, Past Chair, Juvenile Court Rules Committee, Jacksonville, FL; John F. Harkness, Jr., Executive Director, and Gregory A. Zhelesnik, Bar Staff Liaison, The Florida Bar, Tallahassee, FL, for Petitioner.

Tim Stevens, President, Florida Association of Counsel for Children, West Palm Beach, FL; Tamara Ilene Gray, Chair, The Legal Needs of Children Committee, Miami, FL; Dennis Wayne Moore, General Counsel, Statewide Guardian ad Litem Office, Orlando, FL; and Robin L. Rosenberg, Deputy Director, Florida's Children First, Tampa, FL, Responding with Comments.

PER CURIAM.

In the February 19, 2015, opinion in this case,¹ the Court adopted out-of-cycle amendments to the Florida Rules of Juvenile Procedure (Rules). As is relevant here, the Court adopted new rule 8 .231 (Providing Counsel to Dependent Children with Special Needs), as well as amendments to existing rules 8.305 (Shelter Petition, Hearing, and Order); 8.310 (Dependency Petitions); 8.355 (Administration of Psychotropic Medication to a Child in Shelter Care or in Foster Care When Parental Consent Has Not Been Obtained); 8.415 (Judicial Review of Dependency Cases); and existing forms 8.960 (Shelter Petition); 8.961 (Shelter Order); 8.970 (Order on Judicial Review); 8.973A (Order on Judicial Review for Child Age 17 or Older); and 8.973B (Order on Judicial Review). See In re Amends. to Fla. Rules of Juv. Proc., 158 So.3d 523 (Fla.2015). The amendments were proposed by the Florida Bar's Juvenile Court Rules Committee (Committee) in a fast-track report to implement recent legislation. See ch.2014–166, § 1, Laws of Fla. (amending § 39.701, Fla. Stat.); ch.2014–224, §§ 12, 13, 17, Laws of Fla. (amending §§ 39.402; 39.501; 39.701, Fla. Stat.); ch.2014–227, § 1, Laws of Fla. (creating § 39.01305, Fla. Stat.). Because the amendments were not published before they were adopted, the opinion allowed interested persons sixty days to file comments. See In re Amends. to Fla. Rules of Juv. Proc., 158 So.3d at 525. The Court received comments from the Florida Association of Counsel for Children, the Legal Needs of Children Committee of The Florida Bar, and a joint comment from the Florida Guardian ad Litem Program and Florida's Children First. The Committee filed a response to the comments proposing additional rule amendments. The proposed amendments were unanimously approved by the Board of Governors of The Florida Bar.

Upon consideration of the comments and the Committee's response, we adopt most of the Committee's additional amendments as proposed, with some modifications discussed in this opinion. However, as discussed below, we decline to adopt the Committee's proposed amendment to the title of rule 8.355 (Administration of Psychotropic Medication to a Child in Shelter Care or in Foster Care When Parental Consent Has Not Been Obtained).

191 So.3d 258

First, in rule 8.231, based on the suggestion from the Florida Guardian ad Litem Program and Florida's Children First in their joint comment, and as proposed by the Committee, the title of the rule is amended to “Providing Counsel to Dependent Children with Special Needs Who Have a Statutory Right to Counsel.” Additionally, we add a new subdivision (a) (Applicability) to clarify that the rule applies to children for whom the court must appoint counsel under section 39.01305, Florida Statutes,² and does not affect the court's authority to appoint counsel for any other child. Existing subdivision (a) (Duty of Court) is re-lettered as subdivision (b) (Duty of Court). We also amend the new subdivision (b), and delete the entirety of former subdivision (b) (Determination of a Dependent Child of Special Needs), to remove language restating the specific requirements and procedures for appointing counsel provided in section 39.01305. Instead, new subdivision (b) now provides that the court shall appoint an attorney to represent any child who has special needs, as defined in section 39.01305.

Also in response to the comments and as proposed by the Committee, we amend several of the Juvenile Rules in an effort to better facilitate the appointment of counsel to children with special needs. Rule 8.305(a)(1) (Shelter Petition, Hearing, and Order; Shelter Petition) is amended to require that the Shelter Petition indicate whether the child has a special need requiring appointment of counsel as defined in section 39.01305, Florida Statutes. Rule 8.310(a) (Dependency Petitions; Contents) is amended to add a new subdivision (a)(6), requiring the dependency petition to identify each child who has a special need requiring the appointment of counsel, as defined in section 39.01305, Florida Statutes. In rule 8.415 (Judicial Review of Dependency Cases), subdivision (c) (Report) is amended to add a new subdivision (c)(4), which provides that the Florida Department of Children and Families' required report may indicate whether the dependent child has a special need as defined in section 39.01305, Florida Statutes, requiring the appointment of an attorney. Additionally, in subdivision (f) (Court Action) of rule 8.415, we add a new subdivision (f)(5), which requires the court to appoint an attorney to represent a child with special needs as required by rule 8.231; the subsequent subdivision is renumbered accordingly. We also amend Juvenile Forms 8.960 and 8.961 to add new sections to the forms to indicate whether a child has special needs, and whether an attorney has been appointed for the child.

The Committee has proposed amendments to rule 8.355 (Administration of Psychotropic Medication to a Child in Shelter Care or in Foster Care When Parental Consent Has Not Been Obtained) to change the title of this rule to “Administration of Psychotropic Medication to a Child in Chapter 39 Proceedings.” Because the Committee's proposed change would have the effect of broadening the scope of the rule from proceedings where a child's parents do not consent to the administration of psychotropic medications, to all proceedings under Chapter 39, Florida Statutes, we do not adopt this amendment. However, we do amend rule 8.355, subdivision (a) (Motion for Court Authorization for Administration of Psychotropic Medications), as proposed by the Committee, to simplify the language in the rule.

Finally, based on comments from the Florida Guardian ad Litem Program, Florida's Children First, and The Legal Needs of Children Committee of The Florida Bar,

191 So.3d 259

we amend rule 8.305(b)(7)(B), and forms 8.961, 8.970, 8.973A, and 8.973B to replace the term “attorney ad litem” with the term “attorney for the child.”

Accordingly, we amend the Florida Rules of Juvenile Procedure as reflected in the appendix to this opinion. New language is indicated by underscoring; deletions are indicated by struck-through type. The amendments shall become effective immediately upon release of this opinion.

It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, POLSTON, and PERRY, JJ., concur.

APPENDIX

RULE 8.231. PROVIDING COUNSEL TO DEPENDENT CHILDREN WITH SPECIAL NEEDS WHO HAVE A STATUTORY RIGHT TO COUNSEL

(a) Applicability. This rule applies to children for whom the court must appoint counsel under section 39.01305, Florida Statutes. This rule does not affect the court's authority to appoint counsel for any other child.

(b) Duty of Court.

(1) The court shall appoint an attorney to represent any child who is determined to be a child ofhas special needs as defined in section 39.01305, Florida Statutes, and who is subject to any proceeding under Chapter 39, Florida Statutes.

(A) The court must first request a recommendation from the Statewide Guardian Ad Litem Office for an attorney who is willing to represent a child without additional compensation. If such an attorney is available within 15 days after the court's request, the court must appoint that attorney.

(B) If no attorney is available to represent a child without compensation, the court must appoint a compensated attorney. A compensated attorney may be appointed within the 15 day period if the Statewide Guardian Ad Litem Office informs the court it will not be able to recommend an attorney within that time period.

(C) The appointment continues until the attorney is allowed to withdraw, is discharged by the court, or until the case is dismissed.

(D) The court order appointing an attorney must be in writing .

(b) Determination of a Dependent Child of Special Needs.

(1) A dependent child of special needs is a child who:

(A) resides in a skilled nursing facility or is being considered for placement in a skilled nursing home;

(B) is prescribed psychotropic medication but declines assent to the psychotropic medication;

(C) has a diagnosis of a developmental...