Opinion
No. 2D22-3959
05-05-2023
In the INTEREST OF M.L., a child. Statewide Guardian Ad Litem Office, Petitioner, v. T.V. ; and Department of Children and Families, Respondents.
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.
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 from the November 3 order. In fact, the GAL recognizes that any impact from the court's order is a future impact, arguing that "the November 3 order in this case could serve as the basis of an order enforcing its terms and deeming the GAL's objections waived, regardless of distinguishing facts and without any procedural due process." If in the future the GAL objects to providing a records custodian affidavit and the trial court enters an order waiving the GAL's objection to authentication, the GAL could then seek such relief as may be appropriate.
We note the Mother's argument that the issue is moot. The GAL replies that the circumstances are capable of repetition yet evading review.
The mootness doctrine is "a corollary to the limitation on the exercise of judicial power to the decision of justiciable controversies." Merkle v. Guardianship of Jacoby , 912 So. 2d 595, 600 (Fla. 2d DCA 2005). In general, an appellate court will dismiss a case if the issues raised have become moot. Godwin v. State , 593 So. 2d 211, 212 (Fla. 1992). We have defined an issue as "moot" "when the controversy has been so fully resolved that a judicial determination can have no actual effect." Id.
Casiano v. State , 310 So. 3d 910, 913 (Fla. 2021). A judicial tribunal's function is "to decide actual controversies by a judgment which can be carried into effect, and not to give opinions on moot questions, or to declare principles or rules of law which cannot affect the matter in issue." A.G. v. Dep't of Child. & Fam. Servs. , 932 So. 2d 311, 313 (Fla. 2d DCA 2006) (quoting Montgomery v. Dep't of Health & Rehab. Servs. , 468 So. 2d 1014, 1016-17 (Fla. 1st DCA 1985) ).
One exception to the mootness doctrine "applies to an issue that is ‘capable of repetition yet evading review.’ " K.B. v. Fla. Dep't of Child. & Fams. , 202 So. 3d 909, 912 (Fla. 3d DCA 2016) (quoting Kight v. Dugger , 574 So. 2d 1066, 1068 (Fla. 1990) ). In K.B. , the appellate court determined that the issue of the confinement of a foster child for a drug assessment without prior notice and a petition in violation of the Marchman Act was not moot when the child had been released after a six-day confinement. Id. at 912-13. The court pointed out that it was not the first time that the child had been faced with involuntary confinement without judicial compliance with the Marchman Act and that the issue was capable of evading timely review. Id.
Here, because the GAL had already provided the affidavit, the trial court did not impose a sanction affecting the case. The GAL is looking to a future possible injury that could give rise to an issue rather than the repetition of an issue that would evade review.
We conclude that the GAL has failed to show that irreparable harm has occurred in the present case; rather, it is a potential harm that might occur at some time in the future. Thus, this court does not have certiorari jurisdiction, see Williams , 62 So. 3d at 1132, and we dismiss the petition to the extent that it seeks certiorari relief.
III. PROHIBITION
The GAL contends that to the extent the challenged order reflects the trial court's intent to impose a penalty in future cases based on the actions in this case, a writ of prohibition is warranted. Arguing that the order exceeds the trial court's authority, the GAL asserts that the trial court does not have jurisdiction to enter an order that binds parties in another case on an evidentiary issue. We conclude that under the circumstances here, prohibition relief is not appropriate.
Prohibition is a preventive remedy rather than a corrective one, directing a lower tribunal to not do something that it "is about to do ." City of Sanibel v. Maxwell , 925 So. 2d 486, 487 n.1 (Fla. 2d DCA 2006) (emphasis added) (quoting English v. McCrary , 348 So. 2d 293, 297 (Fla. 1977) ). "Its purpose is to prevent the doing of something, not to compel the undoing of something already done. It cannot be used to revoke an order already entered." Id. (quoting English , 348 So. 2d at 297 ). Thus, issuing the writ to revoke the trial court's already-entered order, regarding a sanction to be imposed in some future case, is not appropriate.
Additionally, the extraordinary writ of prohibition is "extremely narrow in scope and operation" in that it "may prevent [an] inferior court or tribunal from exceeding jurisdiction or usurping jurisdiction over matters not within its jurisdiction." Venice HMA , 325 So. 3d at 340 (quoting English , 348 So. 2d at 296 ). This court explained, "In keeping with its narrow purpose (and its powerful repercussions) the extraordinary writ of prohibition has historically been invoked only when it could be said an ‘emergency’ has arisen." Id. (quoting English , 348 So. 2d at 297 ). Only in an emergency is prohibition used "to forestall an impending present injury" when the petitioner "has no other appropriate and adequate legal remedy." Id. (quoting English , 348 So. 2d at 297 ). Furthermore, when the "proceedings sought to be prohibited have been completed and matters therein disposed of, prohibition may not be used for the sole purpose of establishing principles to govern future cases." English , 348 So. 2d at 297 ; see also Rich v. State , 311 So. 3d 126, 130 (Fla. 2d DCA 2020) (recognizing that issuing "an advisory opinion" regarding a legal question does not serve "a proper function for the writ of prohibition").
Here, the challenged order provides that if the GAL fails to provide a business records affidavit for its own records to opposing counsel "[i]n the future," then it "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." While the trial court's statement as to how it will handle records custodian issues in future cases involving the GAL, regardless of the circumstances of the case, is concerning, this court declines to issue a writ of prohibition as an advisory opinion for future cases. See Rich , 311 So. 3d at 130. Moreover, the GAL has not shown an "emergency" regarding an "impending present injury." English , 348 So. 2d at 297.
This is in contrast to the case the GAL cites, Eubanks v. Agner , 636 So. 2d 596, 597 (Fla. 1st DCA 1994). There, the trial court had issued an order to show cause why Eubanks should not be held in contempt. Id. The appellate court granted the petition for writ of prohibition and stated that "prohibition will lie ‘when a party is about to be cited for contempt on the basis of acts which could not constitute contempt of court.’ " Id. (quoting State ex rel. Gillham v. Phillips , 193 So. 2d 26, 29 (Fla. 2d DCA 1966) ).
Nothing is "about to" happen in this case based on the trial court's stated policy for future cases. Therefore, we deny the petition to the extent that it seeks relief via prohibition.
Notably, after the trial court entered the challenged order, the Mother did not appear for trial on December 1, 2022. As a result of the Mother's failure to appear, the trial court entered a default against her and also found that it was in the manifest best interest of the child to terminate the Mother's parental rights. This further supports our conclusion that to resolve the issue that the GAL raises in this proceeding would amount to an advisory opinion regarding a potential harm that may or may not occur in future cases.
Dismissed as to certiorari relief and denied as to prohibition relief.
SMITH and LABRIT, JJ., Concur.