Statewide Guardian AD Litem Office v. T.V. (In re M.L.)

• Decision Date: 05 May 2023
• Docket Number: 2D22-3959
• Parties: In the Interest of M.L., a child. v. T.V.; and DEPARTMENT OF CHILDREN AND FAMILIES, Respondents. STATEWIDE GUARDIAN AD LITEM OFFICE, Petitioner,
• Court: Florida District Court of Appeals

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

STATEWIDE GUARDIAN AD LITEM OFFICE, Petitioner, v. T.V.; and DEPARTMENT OF CHILDREN AND FAMILIES, Respondents.

No. 2D22-3959

Florida Court of Appeals, Second District

May 5, 2023

Petition for Writ of Certiorari to the Circuit Court for Sarasota County; Andrea McHugh, Judge.

Sara Elizabeth Goldfarb, Statewide Director of Appeals, and Sara Todd Weitz, Senior Attorney, Statewide Guardian Ad Litem Office, Tallahassee, for Petitioner.

Debra M. Salisbury of Law Office of Debra M. Salisbury, P.A. Sarasota, for Respondent T.V.

Meredith K. Hall of Children's Legal Services, Bradenton for Respondent Department of Children and Families.

SILBERMAN, JUDGE.

The Statewide Guardian Ad Litem Office (the GAL) seeks certiorari and prohibition review of a nonfinal order in this termination of parental rights (TPR) case against T.V. (the Mother). The subject of this dispute is a records custodian affidavit requested from the GAL by the Mother's counsel that would enable the Mother to prove the authenticity of the GAL's records at a TPR trial. After denying any obligation to provide the requested affidavit or information to enable the Mother to serve a witness subpoena on the GAL's records custodian, the GAL eventually provided that affidavit. The GAL challenges the following sentence in the nonfinal order that addressed this dispute: "In the future, the Guardian Ad Litem Office's failure to provide a business records affidavit to opposing counsel for it's [sic] own records will be considered a waiver on the part of the Guardian Ad Litem Office to both authenticity and for the requirement of a records custodian." To the extent that the GAL seeks relief via certiorari, we dismiss the petition. To the extent that the GAL seeks relief via prohibition, we deny the petition.

I. BACKGROUND

A TPR trial concerning the child, M.L., was scheduled for October 25, and December 1, 2022. On October 24, 2022, the Mother requested a records custodian affidavit from the GAL or, in the alternative, the name and address of a records custodian who could be served with a subpoena for trial. At the docket sounding on October 25, 2022, the Mother's counsel informed the court that because the GAL refused to provide a records custodian affidavit, a subpoena would need to be served on the records custodian. The GAL's counsel indicated that she was not the person who makes a decision on the certification of business records but that it was "the state office." The GAL's counsel also stated that she would provide the Mother's counsel with the name, phone number, and address of the records custodian. The GAL subsequently provided the Mother's counsel with the records custodian's name and phone number but only a post office box address instead of an address where personal service could be accomplished.

On November 2, 2022, the Mother's counsel filed a motion for a status hearing. The motion asked the court to order the GAL "to cooperate with providing the physical address where the Custodian of Records will cooperate in being served by the Sheriff in order to protect the Mother's due process rights." The Mother sought sanctions against the GAL and its attorney for intentionally refusing to cooperate and failing to provide a physical address for service of a subpoena.

The trial court held a status hearing on November 3, 2022. On the morning of the hearing, the GAL provided an affidavit by the records custodian to the Mother's counsel. During the hearing, the trial court inquired what procedure the GAL would use in future cases for the authentication of its business records. During that discussion, the GAL's counsel stated that she did not believe that the trial court had the "ability" or the "power" to order the GAL to provide the affidavit. She stated, "We are agreeing to and we did."

In its order on the motion for a status hearing, the trial court acknowledged that the GAL provided a records custodian affidavit in this case and had not violated any pretrial orders. But the trial court stated that the GAL's position that its "own records must be authenticated and certified as business records is absurd." The court added that the GAL "could not articulate a good faith basis for objecting to the authenticity" of the GAL's own records or a basis for contending "that the records did not qualify as business records subject to the business records hearsay exception." The court stated, "In the future, the Guardian Ad Litem Office's failure to provide a business records affidavit to opposing counsel for it's [sic] own records will be considered a waiver on the part of the Guardian Ad Litem Office to both authenticity and for the requirement of a records custodian." The GAL filed a motion for reconsideration, and the trial court denied the motion. This timely petition follows.

II. CERTIORARI

The GAL contends that the requirements for certiorari relief are satisfied because the "the trial court exceeded its authority in this case by deeming waived any future objections by the GAL based on authenticity and records custodian requirements in future cases if the GAL fails to provide a business records affidavit to opposing counsel upon request." Although we are mindful of the GAL's concerns regarding the trial court's statement as to how it will treat these issues in the future, under the circumstances we conclude that the GAL failed to establish that the necessary irreparable harm occurred in this case.

For business records to be admissible in evidence, the proponent has the burden to establish that the records meet the hearsay exception in section 90.803(6)(a), Florida Statutes (2022). See Deutsche Bank Nat'l Tr. Co. v. Sheward, 245 So.3d 890, 892 (Fla. 2d DCA 2018). The proponent may prove the hearsay exception in one of three ways: (1) by "the traditional route, which requires that a records custodian take the stand and testify under oath to the predicate requirements"; (2) by the parties' "stipulat[ion] to the admissibility of a document as a business record"; or (3) by "a certification or declaration that complies with sections 90.803(6)(c) and 90.902(11)." Yisrael v. State, 993 So.2d 952, 956-57 (Fla. 2008); see also Eveland v. State, 189 So.3d 990, 992 (Fla. 2d DCA 2016) ("Because the State failed to lay a predicate for the records, either through the testimony of a custodian, stipulation, certification, or declaration, the monitoring records were hearsay.").

The following elements are required to obtain certiorari relief: "(1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case (3) that cannot be corrected on postjudgment appeal." Sarasota Cnty. Pub. Hosp. Dist. v. Venice HMA, LLC, 325 So.3d 334, 346 (Fla. 2d DCA 2021) (quoting Reeves v. Fleetwood Homes of Fla., 889 So.2d 812, 822 (Fla. 2004)). Elements two and three are jurisdictional. Williams v. Oken, 62 So.3d 1129, 1132 (Fla. 2011). Further, the petitioner has a heavy burden to demonstrate an entitlement to relief. See Royal Marble, Inc. v. Innovative Flooring &Stonecrafters of SWF, Inc., 932 So.2d 221, 222 (Fla. 2d DCA 2005). The remedy of certiorari is available "only if the petitioner meets the heavy burden of showing that a clear departure from the essential requirements of law has resulted in otherwise irreparable harm." Id. (quoting Reeves, 889 So.2d at 822).

The GAL argues that certiorari is available when a trial court has acted in excess of its jurisdiction, citing Hudson v. Hofmann, 471 So.2d 117, 118 (Fla. 2d DCA 1985). However, in Hudson, after a final declaratory judgment was appealed, the trial court entered an order that awarded "a definite utilities assessment recoverable from petitioners." Id. Because the appeal was pending, the trial "court was divested of jurisdiction to proceed with matters related to the final judgment." Id. Subsequent to the Hudson decision, this court clarified that the proper test to determine loss of jurisdiction is not whether the trial court is proceeding with matters related to the final judgment; instead, "the proper test is whether the trial court is proceeding in a matter which affects the subject matter on appeal." Bernstein v. Berrin, 516 So.2d 1042, 1043 (Fla. 2d DCA 1987) (en banc); see also Arnold v. Arnold, 327 So.3d 910, 913 n.2 (Fla. 5th DCA 2021) (noting agreement with Bernstein).

We understand the trial court's frustration and concern regarding "a pointless waste of resources." But the Mother cites no statute, rule, or case law that would allow the trial court to establish a blanket policy applicable to all future cases involving the GAL-that the GAL's failure to provide records custodian affidavits to the opposing party will be deemed to be a waiver by the GAL of any objections as to the authenticity of the GAL's records or the requirement of testimony by a records custodian to allow the opposing party to introduce the records into evidence at trial. And it is clear that the law allows the proponent of the evidence to use any one of the three alternatives to meet the business records exception. See Yisrael, 993 So.2d at 956-57. However, this goes to whether the trial court departed from the essential requirements of law. We must first determine whether we have certiorari jurisdiction. See Williams, 62 So.3d at 1132.

Here the court declined to enter sanctions against the GAL because the GAL provided the records custodian affidavit before the November 3 hearing. Instead, the trial court announced a policy to sanction the GAL should the GAL fail to provide records custodian affidavits in the future. Based on the particular circumstances of this case, certiorari relief is not available to the GAL. The GAL has yet to suffer any harm...