No. 74586.
March 1, 1990.
Original Proceeding — Florida Rules of Juvenile Procedure.
Jeanne D. Howard, Chairperson for the Juvenile Court Rules Committee, West Palm Beach, for petitioner.
PER CURIAM.
The Juvenile Rules Committee of The Florida Bar has submitted proposed amendments to the Florida Rules of Juvenile Procedure to implement our holding in The Florida Bar, In re Advisory Opinion HRS Nonlawyer Counselor, 547 So.2d 909 (Fla. 1989), wherein we ordered the Florida Department of Health and Rehabilitative Services to end its practice of law by lay counselors. The proposed amendments were unanimously endorsed by The Florida Bar Board of Governors. We approve the amendments. Appended is the text of the amended portions of the rules, which become effective upon the filing of this opinion. The committee notes (reasons for change) are included for explanation and guidance only and are not adopted as an official part of the rules.
It is so ordered.
EHRLICH, C.J., and OVERTON, McDONALD, SHAW, BARKETT, GRIMES and KOGAN, JJ., concur.
PER CURIAM.
OLD RULE NEW RULE REASON FOR CHANGE (a) Presence of Counsel. The Department of Health and Rehabilitative Services must be represented by an attorney at every stage of these proceedings. (a) (b) (b) (c) (c) (d) (d) (e) (e) (f) (f) (g) The certificate must be signed by the attorney of record, clerk or deputy clerk, judicial assistant, or judge. [People Who May Certify Service.] Service of pleadings and orders required to be served as provided by subdivision (2) may be certified by an attorney of record, clerk or deputy clerk, judge, or authorized agent of the Department of Health and Rehabilitative Services in the form provided in subdivision (5) DETENTION SHELTER Detention Shelter an authorized agent of the Department of Health and Rehabilitative Services or by the state attorney or assistant state attorney. the petitioner and, if represented by counsel, by his attorney. Detention Shelter Detention Shelter detention shelter detention shelter detention shelter one of the following shall occur: the department shall: The Department of and Health Rehabilitative Services shall file a performance agreement with the court; or file with the court a peformance agreement signed by the parties involved, which shall include but not be limited to the attorney representing the department, the department counselor the parent(s), counsel for the parent, if represented, and the guardian ad litem; or The Department of Health and Rehabilitative Service shall persons parties The department at all times, however, shall be represented by an attorney. On good cause shown, the court may grant an extension not to exceed 30 days; or Only The Department of Health and Rehabilitative Service The department, at all times, however shall be represented by an attorney. including the status of compliance with each provision of the performance agreement and including recommendations for continued foster care, return of the child to the parent, guardian, relative, or former custodian, or for the initiation of proceedings to to terminate parental rights. A copy of the written report shall be provided to all parties within the time period provided by law. Said report shall be signed by the attorney representing Department if Health and Rehabilitative Services.
APPENDIX RULE 8.610. GENERAL RULE 8.610. GENERAL PROVISIONS FOR HEARINGS PROVISIONS FOR HEARINGS (a) Presence of Child. The This rule change child shall be present creates an at the hearing unless additional excused by the court section entitled or the court finds that "Presence of the child's mental or Counsel" and physical condition or specifically age is such that a court mandates the appearance is not in the department be best interest of the represented by child. Any party may file an attorney at a motion to excuse the all stages of the presence of the child. proceedings. (b) In-camera Proceedings. Presence of The child may be [No change in examined by the text.] court outside the presence of other parties under circumstances as provided by law. The court shall assure that the proceedings are recorded unless otherwise stipulated by the parties. (c) Invoking the Rule. In-camera Prior to the Proceedings. [No examination of any change in text.] witness the court may, and on the request of any party shall, exclude all other witnessess. The court may cause witnesses to be kept separate and to be prevented from communicating with each other until all are examined. (d) Continuances. The court Invoking the Rule. grant a continuance [No change in text.] before or during a hearing for good cause shown by any party. (e) Record. A record of the Continuances. [No testimony in all in text.] hearings shall be made by an offical court reporter, a court approved stenographer, or by a recording device. The records of testimony shall be preserved as required by law. Official records of testimony shall be transcribed only on order of the court. (f) Notice. Where these Record. [No change rules do not require in text.] a specific notice, all parties will be given reasonable notice of any hearing. Notice. [No change in text.] RULE 8.630. PROCESS RULE 8.630. PROCESS (a) Summons and Sub (a) Summonds and Sub poenas. [No poenas. [No Only the above changes changes listed persons recommended.] recommended.] are authorized to sign a certificate of service. An agent of the department is deleted. (b) Service of Pleadings (b) Service of Pleadings and Papers. and Papers. (1) Service, When (1) Service, When Required. [No Required. [No changes changes recommended.] recommended.] (2) Service, How Made (2) Service, How Made. changes [No changes recommended.] recommended.] (3) Filing. [No changes (3) Filing. [No changes recommended.] recommended.] (4) Filing with Court (4) Filing with Court Defined. [No Defined. [No changes changes recommended.] recommended.] (5) Certificate of (5) Certificate of Service. When any When any authorized authorized person person shall in shall in substance substance certify: certify: "I do certify that copy "I do certify that copy (copies) hereof have been (copies) hereof have been furnished to (here insert furnished to (here insert name or names) by name or names) by (delivery) (delivery) (mail) this (mail) this ____ day of ____ day of ___________, ________________, 19__." 19__." _____________ ____________ Titler Title This certificate shall be This certificate shall be taken taken as prima facie proof as prima facie proof of such of such service in service in compliance with all compliance with all rules rules of court and law. of court and law. (6) [People Who May (6) Certify Service.] Service of pleadings and orders required to be served as provided by subdivision (2) may be certified by an attorney of record, clerk or deputy clerk, judge, or authorized agent of the Department of Health and Rehabilitative Services in the form provided in subdivision (5). RULE 8.710. DETENTION RULE 8.710. PETITION, HEARING AND PETITION, HEARING ORDER AND ORDER (a) Detention Petition. If (a) This revision a child is to be placed Petition. If a child changes the in a shelter after being is to be placed in a the reference taken into custody for a shelter after being from detention period longer than 24 taken into custody to shelter hours, the person for a period longer throughout the requesting placement shall than twenty-four rule and requires file a written petition hours, the person the shelter which shall: requesting placement petition to be shall file a written signed by the petition which shall: petitioner and, if represented, by the attorney. (1) specify the name, (1) specify the name, address, and sex of address, and sex of the child, or if the child, or if unknown, designate unknown, designate him by any name or him by any name or description by which description by which he can be identified he can be identified with reasonable with reasonable certainty. certainty. (2) specify that the child (2) specify that the child is of an age subject is of an age subject to the jurisdiction to the jurisdiction of the court. of the court. (3) state the reasons why (3) state the reasons why the child needs to be the child needs to be placed in a shelter placed in a shelter. (4) recommend where the (4) recommend where the child is to be placed child is to be placed or the agency to be or the agency to be responsible for responsible for placement. placement. (5) be signed by an (5) be signed by authorized agent of the Department of Health and Rehabilitative Services or by the state attorney or assistant state attorney. (b) Detention Hearing. [No (b) Hearing. changes in text [No changes in text recommended.] recommended.] (c) Detention Order. (c) Order. (1) The court shall not (1) The court shall not proceed with entry proceed with entry of a detention order of a in the absence of order in the absence of the parent or legal the parent or legal custodian except for custodian except for good cause shown. good cause shown. Absence of the parent Absence of the parent or legal custodian or legal custodian shall not invalidate shall not invalidate the proceedings or the proceedings or the order after the the order after the court has made such court has made such a a finding. finding. (2) [No changes (2) [No changes recommended.] recommmended.] (d) Release from Shelter (d) Release from Shelter Care. Care. No child shall No child shall be released be released from from shelter after a shelter after a order detention order has has been entered except been entered except on order of the court on order of the court unless the detention unless the order authorized order authorized release by the release by the Department of Health Department of Health and Rehabilitative and Rehabilitative Services. Services. RULE 8.800. POST-DISPOSITION RULE 8.800. POST-DISPOSITION RELIEF RELIEF (a) Motion for Modification (a) Motion for Modification These changes of Placement [No of Placement [No require the change recommended.] changes recommended.] performance agreement to be signed by the attorney for the department, as well as the counselor and other participants. It further mandates the department be represented at all times. (b) Motion for Termination (b) Motion for Termination This change man of Supervision or of Supervision or dates that the Jurisdiction, [No Jurisdiction. [No report issued for changes recommended.] changes recommended.] foster care reviews be signed by an attorney for the department. (c) Performance Agreements. (c) Performance Agreements. Within 30 days after Within 30 days after placement of a child placement of a child in foster care one in foster care of the following shall occur: (1) The Department of (1) Health and Rehabilitative services shall file a performance agreement with the court; or (2) The Department of Health (2) and Rehabilitative Services shall submit submit a motion requesting an a motion requesting an extension of the time extension of the time for filing the for filing the performance agreement performance agreement for a period of not for a period of not more than 30 days; more than 30 days; however, this shall however, this shall not preclude a party not preclude a party or any other agency or any other agency or person participating or person participating in the preparation of in the preparation of the performance of the performance agreement from agreeement from filing the motion filing the motion. (i) Service. A copy of the (i) Service. A copy of the motion and notice of motion and notice of hearing shall be hearing shall be served on the parties served on the parties and participants in and participants involved preparation of the in the preparation of the performance agreement. performance agreement. (ii) Hearing. The court (ii) Hearing. The court shall hear all shall hear all present, in person, present, by counsel, or both. in person, by counsel, On good cause shown, or both. the court may grant an extension not to exceed 30 days; or one 30-day extension may be granted upon a showing of good cause; or (3) The Department of Health (3) and Rehabilitative Service shall submit a submit a motion motion for review of a for review of a plan for plan for permanent permanent placement, to placement to, which which a copy of the a copy of the proposed proposed plan shall be plan shall be attached. attached. In the event In the event that such that such a motion and a motion and plan are plan are submitted submitted because the because the parents will parents will not or not or cannot participate cannot participate in in the preparation of the the preparation of performance agreement, the the performance motion shall contain a full agreement, the motion explanation of the shall contain, a full circumstances preventing explanation of the the parents from circumstances preventing participating. In the the parents from event that the motion participating. In the and plan are being event that the motion submitted due to inability and plan are being of the parents submitted due to the and the department to inability of the parents concur in all or any and the deparments to portion of the performance concur in all or any agreement, the motion portion of the shall contain an performance shall explanation of the nature contain an explanation of the disagreement. of the nature of the disagreement. (i) Service. The motion, (i) Service. The motion, proposed plan, and proposed plan, and notice of hearing notice of hearing shall be served on shall be served on the parties and the parties and participants in and participants in the preparation of the preparation of the performance the performance agreement. agreement. (ii) Hearing. The court (ii) Hearing. The court shall hear all shall hear all parties present, parties present, in person, by in person, by counsel, or both. counsel, or both. After such hearing the court shall order the department to submit the plan After for permanent such hearing, the placement, but court shall order may, in its the department to discretion, issue to submit the plan a protective order for permanent modifying, deleting, placement, but may, or adding to the in its discretion requirements included issue a protective in the plan for order modifying, permanent placement. deleting, or adding to the requirements included in the plan for permanent placement. (d) Foster Care Review in (d) Foster Care Review in Dependency Cases. Dependency Cases. Children in foster Children in foster care shall have care shall have their status their status reviewed as provided reviewed as provided by law. by law. (1) Scheduling Hearings. (1) Scheduling Hearings. [No changes [No changes recommended.] recommended.] (2) Petition and Report. (2) Petition and Report. (i) Petition. [No (i) Petition. [No changes changes recommended.] recommended.] (ii) Report. The (ii) Report. The Department shall Department shall prepare a report prepare a report as required by as required by law including the law. status of compliance with each provision of the performance agreement and including recommendations for continued foster care, return of the child to the parent, guardian, relative, or former custodian, or for the initiation of proceedings to terminate parental rights. A copy of the written report shall be provided to all parties within the time period provided to all parties within the time period provided by law. (3) Service. [No changes (3) Service. [No changes recommended.] recommended.] (4) Court Action. [No (4) Court Action. [No changes recommended.] changes recommended.]