Opinion
No. SC13–1354.
2013-10-3
In re AMENDMENTS TO the FLORIDA RULES OF JUVENILE PROCEDURE.
Original Proceedings—Florida Rules of Juvenile Procedure.
Whitney M. Untiedt, Chair, Juvenile Court Rules Committee, Gainesville, FL; John F. Harkness, Jr., Executive Director, Ellen H. Sloyer and Heather Telfer, Staff Liaisons, The Florida Bar, Tallahassee, FL, for Petitioner.
PER CURIAM.
The Florida Bar's Juvenile Court Rules Committee (Committee) has filed a “fast-track” out-of-cycle report proposing amendments to the Florida Rules of Juvenile Procedure in order to implement recent legislation. SeeFla. R. Jud. Admin. 2.140(e). We have jurisdiction.
.Art. V, § 2(a), Fla. Const.
The Committee proposes amendments to rules 8.060 (Discovery); 8.095 (Procedure When Child Believed to be Incompetent or Insane); 8.135 (Correction of Disposition or Commitment Orders); 8.255 (General Provisions for Hearings); 8.345 (Post–Disposition Relief); 8.425 (Permanency Hearings); and Form 8.947 (Disposition Order—Delinquency). The majority of the proposals are in response to recent statutory amendments. See ch.2012–81, § 1, Laws of Fla. (amending § 39.802(4)); ch.2012–84, § 2, Laws of Fla. (amending § 20.19, Fla. Stat.); ch.2013–21, § 3, Laws of Fla. (creating § 39.522(3), Fla. Stat.); ch. 2013–107 (amending § 90.702, Fla. Stat.); ch.2013–112, §§ 3, 4, Laws of Fla. (amending §§ 985.032, 985.455(1), Fla. Stat.); ch. 2013–162 (amending various statutes); § 790.22(9), Fla. Stat. The Board of Governors of The Florida Bar unanimously approved the proposals.
After considering the proposed amendments and reviewing the relevant legislation, 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 take effect immediately upon the release of this opinion. Because the amendments were not published for comment prior to their adoption, interested persons shall have sixty days from the date of this opinion in which to file comments with the Court.
All comments must be filed with the Court on or before December 2, 2013, with a certificate of service verifying that a copy has been served on the Committee Chair, Whitney M. Untiedt, 35 North Main Street, Gainesville, Florida 32601–5323, untiedtw@ pdo 8. org, and on the Bar Staff Liaison to the Committee, Ellen Sloyer, 651 E. Jefferson Street, Tallahassee, Florida 32399–2300, esloyer@ flabar. org, as well as a separate request for oral argument if the person filing the comment wishes to participate in oral argument, which may be scheduled in this case. The Committee Chair has until December 23, 2013, to file a response to any comments filed with the Court. If filed by an attorney in good standing with The Florida Bar, the comment must be electronically filed via the Portal in accordance with In re Electronic Filing in the Supreme Court of Florida via the Florida Courts E–Filing Portal, Fla. Admin. Order No. AOSC13–7 (Feb. 18, 2013). If filed by a non-lawyer or a lawyer not licensed to practice in Florida, the comment must be electronically filed via e-mail in accordance with In re Mandatory Submission of Electronic Copies of Documents, Fla. Admin. Order No. AOSC04–84 (Sept. 13, 2004). Electronically filed documents must be submitted in Microsoft Word 97 or higher. Any person unable to submit a comment electronically must mail or hand-deliver the originally signed comment to the Florida Supreme Court, Office of the Clerk, 500 South Duval Street, Tallahassee, Florida 32399–1927; no additional copies are required or will be accepted.
It is so ordered. POLSTON, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, LABARGA, and PERRY, JJ., concur.
APPENDIX
RULE 8.060. DISCOVERY
(a) Notice of Discovery.
(1) [No Change]
(2) Within 5 days of service of the child's notice of discovery, the petitioner shall serve a written discovery exhibit which shall disclose to the child or the child's counsel and permit the child or the child's counsel to inspect, copy, test, and photograph the following information and material within the petitioner's possession or control:
(A) A list of the names and addresses of all persons known to the petitioner to have information which may be relevant to the allegations, to any defense with respect thereto, or to any similar fact evidence to be presented at trial under section 90.402(2), Florida Statutes. The names and addresses of persons listed shall be clearly designated in the following categories:
(i) Category A. These witnesses shall include
(a)–(f) [No Change]
(g) expert witnesses who have not provided a written report and a curriculum vitae or who are going to testify .to test results or give opinions that will have to meet the test set forth in Frye v. United States, 293 F. 1013 (D.C.Cir.1923)
(ii) [No Change]
(B)–(K) [No Change]
(3)–(5) [No Change]
(b)–(m) [No Change]
Court Commentary
[No Change]
RULE 8.095. PROCEDURE WHEN CHILD BELIEVED TO BE INCOMPETENT OR INSANE
(a) Incompetency At Time of Adjudicatory Hearing or Hearing on Petition Alleging Violation of Juvenile Probation in Delinquency Cases.
(1)–(3) [No Change]
(4) Child Found Incompetent to Proceed. If at the hearing provided for in subdivision (a)(2) the child is found to be incompetent to proceed, the child must be adjudicated incompetent to proceed and may be involuntarily committed as provided by law to the Department of Children and Famil ies for treatment upon a finding of clear and convincing evidence that:y Services
(A) The child is mentally ill or intellectually disabled and because of the mental illness or mentally retarded intellectual disability of the child:retardation
(i)–(ii) [No Change]
(B) [No Change]
(5) [No Change]
(6) Commitment. Each child who has been adjudicated incompetent to proceed and who meets the criteria for commitment in subdivision (a)(4) must be committed to the Department of Children and Famil ies . The department must train or treat the child in the least restrictive alternative consistent with public safety. Any commitment of a child to a secure residential program must be to a program separate from adult forensic programs. If the child attains competency, case management and supervision of the child will be transferred to the Department of Juvenile Justice to continue delinquency proceedings. The court retains authority, however, to order the Department of Children and Family Services ies to provide continued treatment to maintain competency.y Services
(A) A child adjudicated incompetent because of intellectual disablity may be ordered into a program designated by the Department of Children and Familmental retardation ies for y Services intellectually disabled children.retarded
(B) A child adjudicated incompetent because of mental illness may be ordered into a program designated by the Department of Children and Famil ies for mentally ill children.y Services
(7) [No Change]
(8) Treatment Alternatives to Commitment. If a child who is found to be incompetent does not meet the commitment criteria of subdivision (a)(4), the court shall order the Department of Children and Famil ies to provide appropriate treatment and training in the community. All court-ordered treatment must be in the least restrictive setting consistent with public safety. Any residential program must be separate from an adult forensic program. If a child is ordered to receive such services, the services shall be provided by the Department of Children and Family Services ies . The competency determination must be reviewed at least every 6 months, or at the end of any extended period of treatment or training, and any time the child appears to have attained competency or will never attain competency, by the service provider. A copy of a written report evaluating the child's competency must be filed by the provider with the court, the Department of Children and Family Services ies , the Department of Juvenile Justice, the state, and counsel for the child.y Services
(9) [No Change]
(b) [No Change]
(c) Appointment of Expert Witnesses; Detention of Child for Examination.
(1)–(3) [No Change]
(4) For competency evaluations related to intellectual disability , the court shall order the Developmental Services Program Office of the Department of Children and Familmental retardation ies to examine the child to determine if the child meets the definition of y Services intellectual disability in section 393.063, Florida Statutes, and, if so, whether the child is competent to proceed or amenable to treatment through the Department of Children and Familretardation ies' y Services intellectual disability services or programs.retardation
(d) Competence to Proceed; Scope of Examination and Report.
(1) [No Change]
(2) Treatment Recommendations. If the experts find that the child is incompetent to proceed, they shall report on any recommended treatment for the child to attain competence to proceed. A recommendation as to whether residential or nonresidential treatment or training is required must be included. In considering issues related to treatment, the experts shall report on the following:
(A) The mental illness, intellectual disability , or mental age causing incompetence.mental retardation
(B) The treatment or education appropriate for the mental illness or intellectual disability of the child and an explanation of each of the possible treatment or education alternatives, in order of recommendation.mental retardation
(C)–(E) [No Change]
(3)–(5) [No Change]
(e) Procedures After Judgment of Not Guilty by Reason of Insanity.
(1) [No Change]
(2) After finding the child not guilty by reason of insanity, the court shall conduct a hearing to determine if the child presently meets the statutory criteria for involuntary commitment to a residential psychiatric facility.
(A) If the court determines that the required criteria have been met, the child shall be committed by the juvenile court to the Department of Children and Famil ies for immediate placement in a residential psychiatric facility.y Services
(B)–(G) [No Change]
RULE 8.135. CORRECTION OF DISPOSITION OR COMMITMENT ORDERS
(a) [No Change]
(b) Motion to Correct Disposition or Commitment Error. A motion to correct any disposition or commitment order error, including an illegal disposition or commitment, may be filed as allowed by this subdivision. The motion must identify the error with specificity and provide a proposed correction. A response to the motion may be filed within 15 days either admitting or contesting the alleged error. Motions may be filed by the state under this subdivision only if the correction of the error would benefit the child or to correct a scrivener's error.
(1) Motion Before Appeal. During the time allowed for the filing of a notice of appeal, a child, the state, or the department may file a motion to correct a disposition or commitment order error.
(A) This motion stays rendition under Florida Rule of Appellate Procedure 9.020 (i) .(h)
(B) [No Change]
(2) [No Change]
RULE 8.255. GENERAL PROVISIONS FOR HEARINGS
(a)–(h) [No Change]
(i) Advising Parents. At any hearing when it has been determined that reunification is not a viable alternative, and prior to the filing of the petition for termination of parental rights, the court shall advise the parent of the availability of private placement of the child with an adoption entity as defined in Chapter 63, Florida Statutes.
Committee Notes
[No Change]
RULE 8.345. POST–DISPOSITION RELIEF
(a) Motion for Modification of Placement. A child who has been placed in his or her own home, in the home of a relative, or in some other place, under the supervision or legal custody of the department, may be brought before the court by the department or any interested person on a motion for modification of placement. If neither the parents, the legal custodian, nor any appointed guardian ad litem or attorney ad litem object to the change, then the court may enter an order making the change in placement without a hearing. If the parents, the legal custodian, or any appointed guardian ad litem or attorney ad litem object to the change of placement, the court shall conduct a hearing and thereafter enter an order changing the placement, modifying the conditions of placement, continuing placement as previously ordered, or placing the child with the department or a licensed child-caring agency.
(1) In cases in which the issue before the court is whether a child should be reunited with a parent, and the child is currently placed with someone other than a parent, the court must determine whether the parent has substantially complied with the terms of the case plan to the extent that the safety, well-being, and physical, mental, and emotional health of the child is not endangered by the return of the child to the home.
(2) In cases in which the issue before the court is whether a child who is placed in the custody of a parent should be reunited with the other parent upon a finding of substantial compliance with the terms of the case plan, the court must determine that the safety, well-being, and physical, mental, and emotional health of the child would not be endangered by reunification and that reunification would be in the best interest of the child.
(b) [No Change]
RULE 8.425. PERMANENCY HEARINGS
(a) [No Change]
(b) Determinations at Hearing.
(1)–(3) [No Change]
(4) If the court approves a permanency goal of adoption, the court shall advise the parents of the availability of private placement of the child with an adoption entity, as defined in chapter 63, Florida Statutes.
(c) [No Change]
(d) Permanency Order.
(1)–(2) [No Change]
(3) If the court approves a permanency goal of adoption, the order approving this goal shall include a provision stating that the court advised the parents of the availability of private placement of the child with an adoption entity as defined in chapter 63, Florida Statutes, during the permanency hearing.
( 4 ) If the court approves a permanency goal of permanent guardianship of a dependent child, placement with a fit and willing relative, or another planned permanent living arrangement, the court shall make findings as to why this permanent placement is established without adoption of the child to follow. The department and the guardian ad litem must provide the court with a recommended list and description of services needed by the child, such as independent living services and medical, dental, educational, or psychological referrals, and a recommended list and description of services needed by his or her caregiver.3
( 5 ) If the court establishes a permanent guardianship for the child, the court's written order shall4
(A)–(E) [No Change]
( 6 ) The court shall retain jurisdiction over the case and the child shall remain in the custody of the permanent guardian unless the order creating the permanent guardianship is modified by the court. The court shall discontinue regular review hearings and relieve the department of the responsibility for supervising the placement of the child. Notwithstanding the retention of jurisdiction, the placement shall be considered permanency for the child.5
( 7 ) If the court permanently places a child with a fit and willing relative, the court's written order shall6
(A)–(D) [No Change]
( 8 ) If the court establishes another planned permanent living arrangement as the child's permanency option:7
(A)–(D) [No Change]
(e)–(f) [No Change]