M.S., In Interest of

• Decision Date: 27 August 1984
• Docket Number: No. 84-1545,84-1545
• Citation: 455 So.2d 557
• Parties: In the Interest of M.S., a child.
• Court: Florida District Court of Appeals

Page 557

455 So.2d 557

In the Interest of M.S., a child.

No. 84-1545.

District Court of Appeal of Florida,

Fourth District.

Aug. 27, 1984.

Jerrold A. Coff, Hollywood, for petitioners.

Lawrence F. Kranert, Jr., Coral Springs, for respondent.

PER CURIAM.

By petition for writ of habeas corpus we are asked to review the propriety of an order detaining an infant in the custody of the Florida Department of Health and Rehabilitative Services (HRS). We deny the writ, but order the trial court to conduct an adjudicatory hearing forthwith.

On April 11, 1984, M.S., a new-born infant, was taken to Broward General Hospital where he was diagnosed as having an unexplained subarachnoid hemorrhage (bleeding between the brain and the skull). The hospital reported this finding to HRS which, in turn, notified the state attorney. ¹ Suspecting child abuse, the state filed a verified petition for detention. ² The circuit judge to whom the case was assigned conducted a detention hearing pursuant to Rule 8.050, Fla.R.Juv.P., and entered an order finding probable cause to detain the child. ³

The matter was set for an adjudicatory dependency hearing on May 8, 1984. ⁴ Unfortunately, it was necessary to have a substitute judge preside at this hearing. (We do not mean to disparage the actions of the substitute judge for he acted with great concern for the rights of the parties. As will be seen, however, the substitution resulted in substantial confusion.) At first, it appeared that the hearing would be uncontested. But soon it became obvious that the parents did not agree with what was taking place. The father expressed his frustration by saying, "I only know right and wrong; and what's going on is wrong. Wrong." Indeed, at one point the substitute judge observed, "I don't think the problem's with the [parents]; I think the problem's with the Court. You know, I'm concerned that there'd be an adjudication here, based on nothing. I mean, it's really based on nothing that I can see." Later, the court said, "I will not sign an order adjudicating the child dependent; I will defer that decision. I will not make that decision today.... I will defer adjudication." Throughout this proceeding the parents expressed a desire to do what was best for their child. Finally, to move things along, they stipulated to the entry of an agreed order which (1) expressly indicated that "adjudication of dependency is withheld"; (2) allowed the child to remain in the temporary physical and legal custody of HRS; and (3) called for a review within thirty days "or as soon thereafter as the psychological examinations have been completed."

The case then reverted to the original trial judge. For reasons that we do not fully understand, the court took the position that the foregoing stipulated order resolved the issue of dependency. The court focused its attention on the phrase "adjudication of dependency is withheld," and reasoned that the substitute judge had found the child to be dependent, but had declined to "formalize" that finding. It appears that the court may have been thinking of section 39.409(2), Florida Statutes (1983), which permits a judge in a dependency hearing to withhold adjudication if the court finds that the child is dependent, but that no action other than home supervision is required, or perhaps the court was referring to Rule 3.670, Fla.R.Crim.P., which permits a judge in a criminal case to withhold adjudication of guilt when placing a defendant on probation. In any event, the trial judge in this case, declined to conduct an adjudicatory hearing to determine dependency. Thus, we have the instant petition.

Preliminarily, we note that habeas corpus is an acceptable vehicle for challenging wrongful detention of the child in this case. ⁵ See Crane v. Hayes, 253 So.2d 435 (Fla.1971). However, in light of the stipulated order in this case, we cannot say that the child's detention is wrongful. Yet it is equally clear that the parties have not been afforded an adjudicatory hearing as required by section 39.408, Florida Statutes (1983). The trial court's characterization of the substitute judge's order is simply not supported by the record. Therefore, in view of the passage of time and the critical nature of issue at hand, we deem it essential that the court convene and conduct an adjudicatory hearing in compliance with section 39.408, Florida Statutes (1983); see also A.Z. v. State, 383 So.2d 934 (Fla. 5th DCA 1980). ⁶

WRIT DENIED with instructions.

HURLEY and BARKETT, JJ., concur.

GLICKSTEIN, J., concurs in part and dissents in part with opinion.

GLICKSTEIN, Judge, concurring in part and dissenting in part.

In my view, the petition for habeas corpus should not have been considered as such. First, it did not comply with section 79.01, Florida Statutes (1983), as there was no showing of any unlawful detainment through affidavit or other evidence. The transcripts attached as an appendix are nothing more than unsworn dialogue of attorneys and others with two circuit judges. Second, the Supreme Court of Florida said by way of footnote in Potvin v. Keller, 313 So.2d 703, 705 n. 2 (Fla.1975), that habeas corpus is not a substitute for appeal of a juvenile court's order but would be available as a remedy if the trial court's adjudication of dependency was unconstitutional. ⁷

Moreover, the petition seeks other relief, assumingly certiorari, because of an alleged departure from the essential requirements of law, occasioning harm without adequate remedy by appeal, notwithstanding that section 39.413, Florida Statutes (1983), provides for appeal from any order entered pursuant to Chapter 39.

Finally, the petitioners have waited until July 17, 1984, to seek review of orders dated April 25, 1984, and May 8, 1984, notwithstanding the real issue seemingly arises out of a hearing that took place on June 8, 1984, from which no written order has apparently emanated. Section 39.411(5), Florida Statutes (1983), plainly requires that all orders be in writing.

Notwithstanding the foregoing, I would sua sponte direct the trial court, by way of mandamus, to conduct an evidentiary hearing to adjudicate the issue of dependency as it should have done weeks ago. The alternative would seem to be contrary to the interest of justice; namely, denying the petition without prejudice to seek appeal from any order which the trial judge should issue hereinafter as a result of the hearing of June 8, 1984. Neither the welfare of the child nor the interests of the parents may be consistent with further delay.

Having discussed my notion of appropriate disposition, I wish to visit other aspects of this case. First, I was initially concerned by the following remark made by the acting circuit judge who apparently was thrown into the breach because of the absence of the regularly assigned circuit judge.

You know, I'm concerned that there'd be an adjudication here, based on nothing. I mean it's really based on nothing that I can see.

In its report, the child protection team concluded the infant had been the recipient of probable inflicted injury that had resulted in a life threatening situation. The team recommended that the infant be adjudicated dependent and that the parents be evaluated psychologically. Assumingly, the judge's remark was based upon the absence of any evidence or affidavits, as the report contained no affidavits; and no one testified under oath. We have repeatedly called for evidence under oath, not unsworn conversation, in the making of a record at the trial level.

Second, I gather from the transcript that no witnesses were asked to appear because the parents, at that point not represented by counsel, had consented verbally to the team's recommendations on the day prior to the hearing. That consent apparently evaporated at the hearing, at which point it was the responsibility of the trial court, and all attorneys then or thereafter involved, to effect a timely evidentiary adjudicatory hearing. Such hearing never took place, leaving the child's status vis a vis the parents in limbo. The uncertainty and lack of judicial resolution in this case, I feel, not only have affected the rights of the infant and its parents but may also become a potential source of frustration often experienced by non-legal professionals who spend their careers seeking judicial protection of children. It appears that while the child protection team may have done alot of work in response to the report of the infant's condition, the judicial...