Opinion
No. 84-1545.
August 27, 1984.
Petition for review from the Circuit Court, Broward County, John A. Miller, J., and Arthur M. Birken, Acting J.
Jerrold A. Coff, Hollywood, for petitioners.
Lawrence F. Kranert, Jr., Coral Springs, for respondent.
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. Suspecting child abuse, the state filed a verified petition for detention. 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.
§ 415.504, Fla. Stat. (1983).
§ 39.404, Fla. Stat. (1983).
Although the parents' subsequent consent to the entry of a detention order precludes a challenge to the initial detention hearing and the resulting finding of probable cause, we note our concern with the overall laxity that permeated the proceeding. The state's verified petition was woefully inadequate. It did not provide sufficient facts to allow a neutral and detached magistrate to find probable cause. See, e.g., State v. I.B., Jr., 366 So.2d 186 (Fla. 1st DCA 1979). Of greater concern, however, is the fact that the magistrate did not seem to understand that his responsibility was to "perform his `neutral and detached' function and not serve merely as a rubber stamp for the police." Aguilar v. Texas, 378 U.S. 108, 111, 84 S.Ct. 1509, 1512, 12 L.Ed.2d 723 (1964). Although the magistrate ultimately signed an order finding probable cause, that term was never mentioned during the hearing nor does it appear to have been a focus of concern. Rather, the magistrate seemed to presume justification to detain the child and implied that the parents had the burden of rebutting that presumption. The following colloquy is illustrative:
THE COURT: My question today is — the only question before me today is, where does the child go between now and the time we get this matter settled?
FATHER: Well, it seems like it's guilt before proof.
THE COURT: Well, I realize that.
FATHER: I mean, so . . .
THE COURT: That was my problem with the last couple I was trying to explain it.
Rule 8.050, Fla.R.Juv.P., sets forth the procedures which must be employed in a detention hearing. It is critically important that the court scrupulously adhere to the dictates of this rule.
The matter was set for an adjudicatory dependency hearing on May 8, 1984. 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."
§ 39.408, Fla. Stat. (1983).
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. 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).
Appeals from orders rendered in juvenile proceedings are governed by section 39.413(1), Florida Statutes (1983), which provides:
Any child, and any parent or legal custodian of any child, affected by an order of the court may appeal to the appropriate district court of appeal within the time and in the manner prescribed by the Florida Appellate Rules.
Under the appellate rules, we have original jurisdiction over habeas corpus proceedings. See Fla.R.App.P. 9.030(b)(3). While we are aware that habeas corpus ordinarily may not be used as a substitute for an appeal or writ of certiorari, see Skipper v. Schumacher, 124 Fla. 384, 169 So. 58 (1936), cert. denied, 296 U.S. 578, 56 S.Ct. 88, 80 L.Ed. 408 (1935), appeal dismissed, 299 U.S. 507, 57 S.Ct. 39, 81 L.Ed. 376 (1936), and that petitioners in this case could have sought review by writ of certiorari but failed to avail themselves of that remedy within the time limitations imposed by Fla.R.App.P. 9.100(c), we nevertheless have determined to exercise our original jurisdiction under Rule 9.030(b)(3) in order to achieve substantial justice. See McDaniel v. State, 219 So.2d 421 (Fla. 1969). Thus, we respectfully disagree with the dissent's reliance on Potvin v. Keller, 313 So.2d 703 (Fla. 1975), as authority for the proposition that habeas corpus is not available as a means for reviewing any juvenile court order. Potvin and the cases cited therein merely restate the general principle that habeas corpus may not be used as a substitute for an appeal by one who failed to timely avail himself of the latter remedy.
On August 15, 1984, this court entered an order directing the trial court to conduct an adjudicatory hearing.
WRIT DENIED with instructions.
HURLEY and BARKETT, JJ., concur.
GLICKSTEIN, J., concurs in part and dissents in part with opinion.
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.
Former Chief Justice Grimes of the New Hampshire Supreme Court often lectures on the lack of necessity for footnotes. While he might say this case is illustrative of his point, nevertheless, I respectfully suggest that there are appropriate uses for such appendages. Hopefully, this procedural discourse may be illustrative. The reliance of the majority opinion upon McDaniel v. State, 219 So.2d 421, 424 (Fla. 1969), as authority for permitting the use of habeas corpus "as a vehicle for the securing of substantial justice" appears inappropriate in this case because in McDaniel there were circumstances foreclosing adequate consideration through appeal. There are no circumstances in this case which would have precluded appeal from a written order to be entered by the regularly assigned circuit judge as a result of the hearing of June 8, 1984.
Additionally, while Crane v. Hayes, 253 So.2d 435 (Fla. 1971), which the majority also cites as authority for use of habeas corpus, points out that petitions for habeas corpus may be informal and need not be subject to the niceties of technical pleading, the case also says that the important issue is whether the petitioner has demonstrated a right to relief. Unsworn allegations in the present petition supported only by transcribed unsworn dialogue at hearings and without any supporting affidavits or stipulations, together with the express language of the above statute, lead me to believe that habeas corpus is inappropriate.
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 system did not hold up its end by staying in gear.
Third, if our courts have to be characterized, I would much prefer that they be described as meaningfully responding to the needs of the district's children. It is no secret that the historical sensitivity of this nation to children is not shown in a flattering light when one learns that there was a Society for the Prevention of Cruelty to Animals before a similar Society for the Prevention of Cruelty to Children. The judiciary should be at the forefront as role models in matters involving those unable to protect or speak for themselves. All judges would do well, for example, to be familiar with the writings of Dr. C. Henry Kempe, who first diagnosed the battered child syndrome, and who represents the major wellspring of learning in the field of physical and sexual abuse of children. All of us trial and appellate judges should be aware of the work of child protection teams; informed of these team's caring, concerned efforts to protect children from alleged abusive adults; and prepared, not only to require the necessary proof of abuse, but also to conduct proceedings with efficiency, informed perception and concern together with the appearance of concern.