J.R. v. State

• Decision Date: 29 March 2006
• Docket Number: No. 1D05-0757.,No. 1D05-0759.,1D05-0757.,1D05-0759.
• Parties: J.R., a child, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

923 So.2d 1269

J.R., a child, Appellant, v. STATE of Florida, Appellee.

No. 1D05-0757.

No. 1D05-0759.

District Court of Appeal of Florida, First District.

March 29, 2006.

Nancy A. Daniels, Public Defender; David P. Gauldin, Assistant Public Defender, Tallahassee, for Appellant.

Charlie Crist, Attorney General; Tracy Lee Cooper, Assistant Attorney General, Tallahassee, for Appellee.

BENTON, J.

These consolidated cases ask the question whether a child who has been adjudicated delinquent may raise as error on direct appeal his mother's exclusion from his adjudicatory hearing and, if so, whether excluding his mother from the courtroom until she testified was in fact error. We answer both questions in the affirmative and reverse for a new adjudicatory hearing.

At an adjudicatory hearing on January 12, 2005, after defense counsel invoked the rule of sequestration, the following transpired:

MR. MASON [defense counsel]: . . . One additional matter before we start. Because I haven't been in front of this Court. The mother I have listed as a defense witness. Now, we have always argued that the mother's right to be present for the child's trial is —

THE COURT: I don't know any law like that, do you? That's nice, if that's the law, but I don't know.

MR. MASON: I don't know if there is law, but we have always made that argument that that would trump the rule of sequestration, and that has always been honored in the past by the previous judges.

THE COURT: Well good, if that's what they did. I'm not doing it. She can stay outside.

MR. MASON: Your Honor, based on that ruling, I understand the Court's ruling, I would object to this child going to trial without his mother being present in the courtroom.

THE COURT: Okay. Your objection is noted for the record.

(Emphasis supplied.) The State put on its case-in-chief against J.R. while his mother remained outside the courtroom, as ordered.¹

I.

For reasons stated below, we conclude that J.R.'s mother was herself a party and entitled to be present at the adjudicatory hearing on that account. But counsel did not object at the hearing on her behalf, and argues on appeal only that her exclusion violated J.R.'s rights. Preliminarily, therefore, we confront a standing question. Like most other courts that have considered the question, we conclude that it is appropriate for J.R. to assert this as error on appeal. See L.B. v. State, 675 N.E.2d 1104, 1107 (Ind.Ct.App.1996) ("Given that the right existed, it must be determined whether it may be asserted by L.B. and whether denial of the right implicates the child's due process concerns. Again focusing upon the tenor of the provisions relating to juveniles, the rights accorded parents and child are viewed as coextensive. . . . With the exception of petitions alleging the children to be in need of services. . ., the child's and parents' interests are the same."); see also Hopkins v. Youth Court of Issaquena County, 227 So.2d 282, 284 (Miss.1969) (holding mother's exclusion from hearing violated the child's due process rights); State ex rel. V.M., 363 N.J.Super. 529, 833 A.2d 692, 694 (2003) (holding mother's exclusion from adjudicatory hearing required reversal of child's adjudication of delinquency and remand for a new trial). But see People v. Akers, 17 Ill.App.3d 624, 307 N.E.2d 630, 630-31 (1974) (holding juvenile code provision granting parents "the right to be present, to be heard," bestowed a right on the parents, and because "the parents did not appeal nor did they join in the appeal nor are they made parties to the appeal," nobody could complain that their rights were violated).

II.

At issue is whether the rule of sequestration authorized the trial judge² to exclude J.R.'s mother from the courtroom because she was listed as a defense witness. Commonly called "the rule," section 90.616, Florida Statutes (2004), provides:

(1) At the request of a party the court shall order, or upon its own motion the court may order, witnesses excluded from a proceeding so that they cannot hear the testimony of other witnesses except as provided in subsection (2).

(2) A witness may not be excluded if the witness is:

(a) A party who is a natural person.

. . . .

(c) A person whose presence is shown by the party's attorney to be essential to the presentation of the party's cause.

(d) In a criminal case, the victim of the crime, the victim's next of kin, the parent or guardian of a minor child victim, or a lawful representative of such person, unless, upon motion, the court determines such person's presence to be prejudicial.

"If sequestration is invoked, section 90.616(2) provides that four categories of witnesses . . . [including parties] may remain in the courtroom and also testify during the trial or hearing." Charles W. Ehrhardt, Florida Evidence § 616.1, at 596 (2004 ed.).

III.

If J.R.'s mother was a "party who is a natural person," § 90.616(2)(a), Fla. Stat. (2004), the rule of sequestration afforded no basis on which to exclude her from J.R.'s adjudicatory hearing. A careful examination of applicable statutes and rules leaves no doubt that she was such a party, and that she enjoyed party status in the delinquency proceeding, as J.R.'s mother, even aside from the State's efforts to make her legally responsible for restitution.³

Contemplating service on parents at the commencement of delinquency proceedings, the Florida Rules of Juvenile Procedure provide, in cases where children are in the custody of their parents:

(a) Summons.

(1) Upon the filing of a petition upon a child who is not detained by order of the court, 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.

. . . .

(b) Service.

(1) Generally. The summons and other process shall be served upon such persons and in such manner as required by law.

Fla. R. Juv. P. 8.040(a)(1), (b)(1) (2004). Section 985.219, Florida Statutes (2004), entitled "Process and service," provides in relevant part:

(2) Upon the filing of a petition containing allegations of facts which, if true, would establish that the child committed a delinquent act or violation of law . . . the clerk or deputy clerk shall issue a summons.

. . . .

(5) The summons shall be directed to, and shall be served upon,⁴ the following persons:

(a) The child, in the same manner as an adult;

(b) The parents of the child; and

(c) Any legal custodians, actual custodians, guardians, and guardians ad litem of the child.

. . . .

(8) The jurisdiction of the court shall attach to the child and the case when the summons is served upon the child and a parent or legal or actual custodian. . . of the child . . . and thereafter the court may control the child and the case in accordance with this part.

Florida thus requires that the parents of the child be summoned along with the child, provides that jurisdiction does not attach until (when possible) parents and children are both served,⁵ and allows parents to be held in contempt for failing to appear as required by a summons.⁶

Florida Rule of Juvenile Procedure 8.010(a) contemplates parents' participation⁷ as parties at detention hearings unless they "cannot be located":

No detention order . . . shall be entered without a hearing at which all parties shall have an opportunity to be heard on the necessity for the child's being held in detention, unless the court finds that the parent or custodian cannot be located or that the child's mental or physical condition is such that a court appearance is not in the child's best interest.

Fla. R. Juv. P. 8.010(a) (2004) (emphasis supplied). Detention hearings are closely analogous to shelter hearings where parents are also parties, under the rules.⁸

By explicitly naming parents as parties at the final disposition hearing, section 985.23, Florida Statutes (2004), refutes any notion that a parent loses party status after the initial detention hearing:

When a child has been found to have committed a delinquent act, the following procedures shall be applicable to the disposition of the case:

(1) Before the court determines and announces the disposition to be imposed, it shall:

. . . .

(d) Give all parties present at the hearing an opportunity to comment on the issue of disposition and any proposed rehabilitative plan. Parties to the case shall include the parents, legal custodians, or guardians of the child . . . .

. . . .

(7) The court shall . . . notify and summon or subpoena, if necessary, the parents, legal custodians, or guardians of the child to attend the disposition hearing if they reside in the state.

§ 985.23(1)(d), (7), Fla. Stat. (2004) (emphasis supplied). A reading of the rules and statutes to grant parents party status only at intermittent stages of delinquency proceedings has little to recommend itself.⁹

IV.

Courts in Mississippi, New Jersey, Indiana, and Georgia have decided that parents are "parties" to juvenile delinquency proceedings.¹⁰ See D.C.A. v. State, 135 Ga.App. 234, 217 S.E.2d 470, 472 (1975) ("[T]he exclusion of the child or the child's parents from a hearing or any part thereof when the issue being heard is whether, because of the purported acts of the child, such child is in need of correction is manifestly an abuse of discretion, for who would, under any circumstances, have a more direct interest in the case?") (quoting Land v. State, 101 Ga.App. 448, 114 S.E.2d 165, 166 (1960)). A fair reading of Florida's juvenile rules and the pertinent Florida statutes requires the same conclusion in Florida.

The substance of the orders under review also supports the conclusion that J.R.'s mother was a party to the proceeding below, subject to the court's jurisdiction. The orders "required [her] to reasonably assist the child in complying with the orders of this court, including providing timely transportation, setting up and keeping appointments, returning telephone calls, complying with referrals...