J.V., In re
| Decision Date | 30 August 1989 |
| Docket Number | No. 89-0941,89-0941 |
| Parties | 14 Fla. L. Weekly 2018 In re J.V., a child. |
| Court | Florida District Court of Appeals |
The opinion and mandate of this court issued on April 14, 1989, are hereby withdrawn.
Subsequent to the issuance of our prior opinion affirming the trial court's order denying appellant's petition for waiver of consent, the judges of this court voted to en banc this case. The trial court was directed to inform this court whether any extension of the period set out in Florida Rule of Civil Procedure 1.612(d) had been requested by the minor because the record was silent as to whether any such request had been made.
As a result of the trial court's response indicating that no extension of time was requested, the original panel elected to reverse its previous position. When the original panel indicated its intention to reverse the trial court, this court voted to dis-en banc the case. Therefore, the following opinion is substituted for the earlier opinion.
Section 390.001(4)(a)2, Florida Statutes (Supp.1988) and rule 1.612 of the Florida Rules of Civil Procedure govern the procedure to be followed in this case. Rule 1.612(d) provides:
Judgment. The court shall enter a judgment within 48 hours after the petition is filed unless the time is extended at the request of the minor. The judgment shall recite findings in support of the ruling. If no judgment is entered within the time period, the petition shall be deemed granted and the clerk shall place a certificate to this effect in the file. (Emphasis added).
In the instant case, the trial court's response coupled with the record clearly demonstrate that no order or judgment was entered within the time frame provided by rule 1.612(d) and that no request for extension was made by the appellant. Accordingly, we remand this case to the trial court with directions to vacate its previous order and to direct the clerk to issue a certificate that the petition is deemed granted pursuant to rule 1.612(d).
We call attention to the fact that the minor was not represented by counsel and there was no transcript of the hearing conducted by the trial court. In our view, provisions should be made in the trial court to be certain that a record of the hearing is available if appellate review is sought. Otherwise any right of appeal will be illusory and meaningless.
REVERSED AND REMANDED.
I dissent for a number of reasons, a few of which I feel warrant discussion.
First, with regard to the time limitation placed on this court's jurisdiction by Florida Rule of Appellate Procedure 9.110(l ), 1 I deem the ten days allotted by this rule as a grant of jurisdiction limited strictly to that specific ten day period initiated on the filing of a notice of appeal, in much the same way the majority has deemed the forty-eight hour time limitation over trial court action to be absolute. See Fla.R.Civ.P. 1.612(d). These time limitations operate to extinguish the court's authority to rule by declaring a petition granted, by operation of law, in the event either court fails to rule within the time allotted.
The minor petitioner invoked this court's jurisdiction by filing her notice of appeal on April 7, 1989, in the trial court thereby confining this court's jurisdiction to the ten day period ending April 17, 1989. The initial opinion issued on April 14, 1989, 2 within the ten day jurisdictional time period. The mandate also issued on April 14, 1989. Eighteen days later, on May 2, 1989, this court issued an order to the trial court to advise it as to whether or not an extension of the forty-eight hour limitation was granted to the trial court by the petitioner. 3 Subsequently, on May 5, 1989, twenty one days after the original opinion issued and eighteen days after this court's jurisdiction lapsed, this majority opted to recall the mandate and reverse its opinion. 4
Because of the exacting language of the rule and the absence of any provision for rehearing, I believe that rule 9.110(l ) operates to absolutely extinguish this court's jurisdiction from any form of reconsideration, either upon petition or sua sponte, after the ten day period, from the filing of the notice of appeal, has run. In my opinion, the orders rendered by this court on May 2, 1989, and on May 5, 1989, and the majority opinion, herewith, are null and void. The majority denotes that a reversal grounded on the time limitation of Florida Rule of Civil Procedure 1.612(d) leaves no room for discretion or maneuver on the part of the trial court but determines that the ten day time limitation of Florida Rule of Appellate Procedure 9.110(l ) can be expanded to allow this court to sua sponte reverse itself eighteen days after its jurisdiction has lapsed. Such discretionary treatment of rule 9.110(l ) jurisdiction certainly suggests that there is room for maneuverability in application of the rule 1.612(d) time limitations governing the trial court.
Secondly, by reconsidering the case, en banc, this court sought to resolve the question of whether or not, in fact, the petitioner granted an extension of time for ruling to the trial court. To that end, on May 2, 1989 this court issued the order (set out in the margin at footnote 4) to the trial court requesting that it advise this court whether an extension of time beyond forty-eight hours for the trial court to rule, had been granted by the petitioner.
Through phone calls between the clerk's office and the trial judge's secretary, this court was provided with information that left the record unchanged, with regard to whether or not the petitioner had granted an extension of time to the trial court during the hearing between the petitioner and the trial judge. No written request or grant of time was filed in the trial court and there is still no transcript of that hearing which would resolve the question. Whether the subject of extending the forty-eight hour limitation for ruling by the trial court was addressed at the hearing remains a mystery and the reasoning underlying the initial affirmance of the trial court's order remains intact: no error was demonstrated by the minor petitioner.
The original opinion issued April 14, 1989, treated the trial court's order as presumptively correct, in the absence of any showing of error. The minor petitioner did not establish in this court that she had not granted an extension to the trial court during the unrecorded hearing. It was not apparent from the record whether the hearing even took place within forty-eight hours after the petition was filed, thereby leaving the merits of whether the forty-eight hour rule should apply at all, in question. What was apparent from the record was that the petitioner did not take any further action in the trial court, when forty-eight hours had lapsed without a ruling from the court, toward obtaining a certificate from the clerk of court. The minor petitioner did not even file an appeal for five days after the trial court rendered its denial of her petition, thus the initial forty-eight hours in the life of the petition appears relatively insignificant to her cause. 5
Regardless of this, the majority has seen fit to read into the record, by way of presumption, what does not readily appear from its face, i.e., that the minor petitioner did not grant an extension of time to the trial court. The majority, no doubt in an effort to accord the minor petitioner the most liberal treatment, has consequently presumed error in the trial court's order on the supposed fact that the order denying the petition was improperly rendered outside the forty-eight hour period.
The opinion states that it was undisputed that there was no extension granted but fails to acknowledge that this was a nonadversarial proceeding. This brings up a second point, regarding the constitutionality of section 390.001, Florida Statutes (Supp.1988).
The Fifth District has declared this section unconstitutional and I concur that it is constitutionally unsound on the grounds outlined in In re: T.W., 543 So.2d 837 (Fla. 5th DCA May 12, 1989). 6 In that case, the trial court raised the issue of constitutionality. The lack of adversariness is yet another anomaly which further tests the constitutional soundness of this statutory proceeding.
I would further commend the trial judge in this case for his attempt to give effect to the law and administrative court rules and finally point out that, although the trial court conducted a hearing with the petitioner and found her insufficiently mature to make a decision to consent to an abortion, findings which should be accorded due deference, 7 and her petition was denied, on this basis, this court deems it of utmost importance to look only to the technical letter of the law in reversing the lower court. By doing so, this court has exceeded its own time limitation under Florida Rule of Appellate Procedure 9.110(l ), and thereby its jurisdiction, and to what end? To authorize consent in the face of an irrefutable finding that the minor is insufficiently mature to make such a decision. Section 390.001, Florida Statutes (Supp.1988) was designed to protect against such an improvident decision by an insufficiently mature minor, but this court has determined, as a matter of law, that consent should be granted because of a supposed procedural error by the trial court.
Regardless of how promptly the trial judge rendered his order, the fact that J.V. was too immature to proceed with this decision on her own remains glaringly apparent. That finding is the essence of judicial consent proceedings, i.e., providing guidance, in the context of the best interests of the minor, in the event a minor cannot discern her own best interests due to her natural immaturity. 8 The...
To continue reading
Request your trial
-
T.W., In re
...a trial judge's reasons for denying a petition for waiver of parental consent, appellate review is meaningless. See In re: J.V., a child, 548 So.2d 749 (Fla. 4th DCA 1989) (without record hearing, appellate review is "illusory and meaningless"); In re: E.B.L., a minor, 544 So.2d 333 (Fla. 2......