Summary
explaining the history behind the adoption of rule 8.226 in May 2013 and establishing the effective date of the rule as July 1, 2013
Summary of this case from J.R–P. v. Dep't of Children & Families (In re Interest of Y.R–P.)Opinion
No. SC12–188.
2013-05-23
In re AMENDMENTS TO the FLORIDA RULES OF JUVENILE PROCEDURE.
Original Proceedings—Florida Rules of Juvenile Procedure.
Honorable Daniel Paul Dawson, Chair, Juvenile Court Rules Committee, Orlando, FL, and Joel M. Silvershein, Past Chair, Juvenile Court Rules Committee, Fort Lauderdale, FL; Robert W. Mason, Jacksonville, FL; Deborah Schroth, Orange Park FL, Co–Counsel, Juvenile Court Rules Committee; John F. Harkness, Jr., Executive Director, and Ellen H. Sloyer, Staff Liaison, The Florida Bar, Tallahassee, FL, for Petitioner.
PER CURIAM.
The Juvenile Court Rules Committee (Committee) has filed its regular-cycle report of proposed rules and forms amendments in accordance with Florida Rule of Judicial Administration 2.140(b). We have jurisdiction. Seeart. V, § 2(a), Fla. Const.
BACKGROUND
The Committee proposes amendments to rules 8.035 (Petitions for Delinquency), 8.070 (Arraignments), 8.075 (Pleas), 8.080 (Acceptance of Guilty or Nolo Contendere Plea), 8.115 (Disposition Hearing), 8.201 (Commencement of Proceedings), 8.225 (Process, Diligent Searches, and Service of Pleadings and Papers), 8.260 (Orders), 8.285 (Contempt), 8.340 (Disposition Hearings), 8.345 (Post–Disposition Relief), 8.350 (Placement of Child Into Residential Treatment Center After Adjudication of Dependency), and proposes new rules 8.286 (Civil Contempt), 8.347 (Motion to Supplement Order of Adjudication, Disposition Order, and Case Plan), and 8.517 (Withdrawal and Appointment of Counsel). The Committee also proposes amendments to a number of juvenile forms and proposes new form 8.952 (Findings for Juvenile Sexual Offender Registration). Consistent with rule 2.140(b)(2), the Committee published its proposals for comment prior to filing them with the Court. One comment was received. The Board of Governors of The Florida Bar unanimously approved the proposals. After the report was filed, the proposals were again published for comment. No comments were filed. Oral argument was heard on the proposals on June 6, 2012. After oral argument, the Court directed the Committee to file supplemental information pertaining to the proposed amendments to rules 8.080 (Acceptance of Guilty or Nolo Contendere Plea) and 8.225 (Process, Diligent Searches, and Service of Pleadings and Papers).
AMENDMENTS
After considering the Committee's report, its presentation at oral argument, and the supplemental information provided, we adopt a number of amendments to the Florida Rules of Juvenile Procedure, as described below.
In addition to the amendments specifically described, other minor and editorial amendments are also made to several of the rules and forms.
Rules 8.035 (Petitions for Delinquency), 8.070 (Arraignments), 8.075 (Pleas), and 8.115 (Disposition Hearing) are amended to conform the language of those rules more closely with their adult criminal rule counterparts.
Rule 8.080 (Acceptance of Guilty or Nolo Contendere Plea) is amended to: (1) add new subdivision (b) requiring that pleas be taken in open court, similar to Florida Rule of Criminal Procedure 3.172(b), but providing that “the hearing may be closed as provided by law;” (2) add new subdivision (c)(8) requiring that before entering a plea, the child must be advised that the plea may require the child to register as a sexual offender; (3) add new subdivision (c)(10) requiring that before entering a plea, the child must be advised that the plea may have deportation and immigration consequences, similar to criminal rule 3.172(c)(8); and (4) amend current subdivision (e) (now redesignated as (f)) to state that the parties must advise the court of any plea agreement and may advise the court of the reasons for it, and to state that the court must advise the parties whether it accepts or rejects the plea agreement and may state its reasons, similar to criminal rule 3.171.
We note, however, that this new requirement in the rule does not relieve defense counsel of his or her separate obligations to the client.
Subdivisions (a) and (b) of rule 8.201 (Commencement of Proceedings) are amended to add two new items constituting “commencement” of a dependency proceeding: (1) filing of a petition or affidavit or an order to take a child into custody; and (2) filing of any other petition authorized by Chapter 39, Florida Statutes, and to provide that upon commencement of any proceeding, the clerk shall open a file and assign a case number.
The Committee proposed adding a third item constituting “commencement” of a proceeding. That item, a petition for an injunction to prevent child abuse, was recently added to rule 8.201(a) in another case. See In re Amend. to Fla. R. Juv. P., 101 So.3d 368, 369 (Fla.2012).
Rule 8.260 (Orders) is amended to clarify that all orders must be signed by the judge, seesection 39.0132(5), Florida Statutes (2012), and to list the types of orders over which a dependency order takes precedence, seesection 39.013(4), Florida Statutes (2012).
The title of rule 8.285 (Contempt) is amended to reflect that the rule addresses only criminal contempt proceedings, and new rule 8.286 (Civil Contempt) is adopted to govern civil contempt proceedings in dependency and termination of parental rights matters.
Subdivision (c) of rule 8.340 (Disposition Hearings) is amended to more closely mirror the requirements for disposition orders, as set forth in section 39.521(1)(d), Florida Statutes (2012).
Subdivision (b) of rule 8.345 (Post–Disposition Relief) is amended to provide that jurisdiction does not terminate at age eighteen if the court has extended jurisdiction over the child, as provided under certain circumstances in section 39.013(2), Florida Statutes (2012).
New rule 8.347 (Motion to Supplement Order of Adjudication, Disposition Order, and Case Plan) is adopted in order to provide a uniform process for a party to move the court to supplement a dependency adjudication order with findings that a parent or legal guardian contributed to the dependent status of the child. The rule addresses the requirements for the content of the motion, service of the motion, and procedures for a hearing on the motion.
Rule 8.350 (Placement of Child Into Residential Treatment Center After Adjudication of Dependency) is amended to delete the requirement in subdivision (a)(11)(A)(iii) that the court consider “a case review committee recommendation, if there has been one,” as such is not required under section 39.407(6), Florida Statutes (2012).
New rule 8.517 (Withdrawal and Appointment of Counsel) is adopted to address withdrawal of counsel of record for a parent or custodian in a dependency or termination of parental rights proceeding and appointment of appellate counsel in such proceedings. The new rule provides that after an order of adjudication of dependency, an order of disposition, or an order terminating parental rights has been entered, counsel of record shall not be permitted to withdraw until counsel certifies that he or she has discussed appellate remedies with the parent or custodian and certifies that the parent or custodian does not wish to appeal or, if the parent or custodian wishes to appeal, certain appellate documents have been filed and appellate counsel has been appointed. If counsel is unable to contact the parent or custodian, counsel must certify the efforts made to contact the parent or custodian. Finally, the rule requires the court to serve a copy of the order appointing appellate counsel on the appointed counsel and the clerk of the appellate court.
Forms 8.908, 8.929, 8.959, 8.960, 8.961, 8.963, 8.964, 8.965, 8.966, 8.967, 8.970, 8.973, 8.975, 8.979, and 8.982 are amended to conform the ADA notice language in those forms to the requirements of Florida Rule of Judicial Administration 2.540(c)(1). Appropriate ADA notice language is added to forms 8.929 and 8.961.
.Florida Rule of Judicial Administration 2.540(c)(1) states:
(1) All notices of court proceedings to be held in a public facility, and all process compelling appearance at such proceedings, shall include the following statement in bold face, 14–point Times New Roman or Courier font:
“If you are a person with a disability who needs any accommodation in order to participate in this proceeding, you are entitled, at no cost to you, to the provision of certain assistance. Please contact [identify applicable court personnel by name, address, and telephone number] at least 7 days before your scheduled court appearance, or immediately upon receiving this notification if the time before the scheduled appearance is less than 7 days; if you are hearing or voice impaired, call 711.”
Form 8.947 (Disposition Order—Delinquency) is amended to include the specific statutory authority for costs and fees imposed on the child by the court and to correct the reference to the statutory basis for collection of a DNA sample at disposition.
As adopted, the amendments to this form differ slightly from those proposed by the Committee. In its proposed amendments, the Committee referred to the “Victim's Crime Compensation Trust Fund,” but under section 938.03, Florida Statutes (2012), the trust fund is called the “Crimes Compensation Trust Fund.” Additionally, the proposed amendments referred to “chapter 800 (lewd or lascivious),” but the title of chapter 800 is “Lewdness; Indecent Exposure.”
New form 8.952 (Findings for Juvenile Sexual Offender Registration) is adopted and provides the court with the necessary factual findings required under section 943.0435(1)(a) 1.d., Florida Statutes (2012), in determining whether a juvenile is required to register as a sexual offender.
Finally, the Committee proposed fairly major amendments to rule 8.225 (Process, Diligent Searches, and Service of Pleadings and Papers) in order to address two areas it identified as primary reasons for delays in permanency for children: (1) lack of legally sufficient and effective diligent search to locate the parent for service of a dependency petition or petition to terminate parental rights, and (2) lack of effective procedures for the identification and establishment of paternity in dependency and termination of parental rights proceedings. The Committee proposed amending subdivision (b) of rule 8.225 in order to provide a process for the court, at the outset of a proceeding, to review the affidavit of diligent search to determine whether there are deficiencies in the search process and to add a requirement that the clerk not certify a notice of action for constructive service unless the court has entered an order finding that the petitioner has conducted a diligent search as required by law. The Committee proposed adding and amending subdivisions (c) through (f) to provide procedures for the identification and establishment of parenthood in dependency or termination of parental rights proceedings. The new and amended provisions address identification of parents or prospective parents, failure of the court to identify any parent or prospective parent, and determinations of parenthood. We adopt the amendments proposed by the Committee; however, we adopt proposed new subdivision (f) (Determination of Parenthood) as a separate new rule, rule 8.226.
Accordingly, the Florida Rules of Juvenile Procedure are hereby amended as set forth in the appendix to this opinion. New language is indicated by underscoring; deletions are indicated by struck-through type. These amendments shall become effective at 12:01 a.m., on July 1, 2013.
It is so ordered. POLSTON, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, LABARGA, and PERRY, JJ., concur.
APPENDIX
RULE 8.035. PETITIONS FOR DELINQUENCY
(a) Contents of Petition.
(1) Each petition shall be entitled a petition for delinquency and shall allege facts showing the child to have committed a delinquent act. The petition must be a plain, concise, and definite written statement of the essential facts constituting the offense charged.
(2)–(4) [No Change]
(5) Two or more children may be the subject of the same petition if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses. The children may be named in one or more counts together or separately and all of them need not be named in each count.1
(6) Allegations made in one count shall not be incorporated by reference in another count.
(b) [No Change]
(c) Child's Right to Copy of Petition. Upon application to the clerk, a child must be furnished a copy of the petition and the endorsements on it at least 24 hours before being required to plead to the petition.
( d ) Amendments. At any time prior to the adjudicatory hearing an amended petition may be filed or the petition may be amended on motion. Amendments shall be freely permitted in the interest of justice and the welfare of the child. A continuance may be granted upon motion and a showing that the amendment prejudices or materially affects any party. c
(e) Statement of Particulars. The court, on motion, must order the prosecuting attorney to furnish a statement of particulars when the petition on which the child is to be tried fails to inform the child of the particulars of the offense sufficiently to enable the child to prepare a defense. The statement of particulars must specify as definitely as possible the place, date, and all other material facts of the crime charged that are specifically requested and are known to the prosecuting attorney. Reasonable doubts concerning the construction of this rule shall be resolved in favor of the child.
( f ) Defects and Variances. No petition or any count thereof shall be dismissed, or any judgment vacated, on account of any defect in the form of the petition or of misjoinder of offenses or for any cause whatsoever. d If the court is of the opinion that the petition is so vague, indistinct, and indefinite as to mislead the child and prejudice the child in the preparation of a defense, the petitioner may be required to furnish a statement of particulars.
RULE 8.070. ARRAIGNMENTS
(a) [No Change]
(b) Plea. The reading or statement as to the charge or charges may be waived by the child. No child, whether represented by counsel or otherwise, shall be called on to plead unless and until he or she has had a reasonable time within which to deliberate thereon. If the child is represented by counsel, counsel may file a written plea of not guilty at or before arraignment and arraignment shall then be deemed waived. If a plea of guilty or nolo contendere is entered, the court shall proceed as set forth under rule 8.115, disposition hearings. If a plea of not guilty is entered, the court shall set an adjudicatory hearing within the period of time provided by law. The child is entitled to a reasonable time in which to prepare for trial.
Committee Notes
[No Change]
RULE 8.075. PLEAS
No written answer to the petition nor any other pleading need be filed. No child, whether represented by counsel or otherwise, shall be called upon to plead until he or she has had a reasonable time within which to deliberate thereon.
(a)–(b) [No Change]
(c) Written Answer. A written answer admitting or denying the allegations of the petition may be filed by the child joined by a parent, custodian, or the child's counsel. If the answer admits the allegations of the petition it must acknowledge that the child has been advised of the right to counsel, the right to remain silent, and the possible dispositions available to the court and shall include a consent to a predispositional study. Upon the filing of such an answer, a hearing for adjudication or adjudication and disposition shall be set at the earliest practicable time.
(d) [No Change]
(e) Withdrawal of Plea. The court may for good cause shown at any time prior to the beginning of a disposition hearing permit a plea of guilty or nolo contendere to be withdrawn, and if a finding that the child committed a delinquent act has been entered thereon, set aside such finding and allow another plea to be substituted for the plea of guilty or nolo contendere . In the subsequent adjudicatory hearing, the court shall not consider the plea which was withdrawn as an admission.
(f) [No Change]
RULE 8.080. ACCEPTANCE OF GUILTY OR NOLO CONTENDERE PLEA
(a) [No Change]
(b) Open Court. All pleas shall be taken in open court, except the hearing may be closed as provided by law.
( c ) Determination by Court. The court, when making this determination, should place the child under oath and shall address the child personally. The court shall determine that the child understands each of the following rights and consequences of entering a guilty or nolo contendere plea: b
(1) The nature of the charge to which the plea is offered and the possible dispositions available to the court.
(2) If the child is not represented by an attorney, that the child has the right to be represented by an attorney at every stage of the proceedings and, if necessary, one will be appointed. Counsel shall be appointed if the child qualifies for such appointment and does not waive counsel in writing subject to the requirements of rule 8.165.
(3) That the child has the right to plead not guilty, or to persist in that plea if it had already been made, and that the child has the right to an adjudicatory hearing and at that hearing has the right to the assistance of counsel, the right to compel the attendance of witnesses on his or her behalf, the right to confront and cross-examine witnesses against him or her, and the right not to be compelled to incriminate himself or herself.
(4) That, if the child pleads guilty or nolo contendere, without express reservation of the right to appeal, the right to appeal all matters relating to the judgment, including the issue of guilt or innocence, is relinquished, but the right to review by appropriate collateral attack is not impaired.
(5) That, if the child pleads guilty or nolo contendere, there will not be a further adjudicatory hearing of any kind, so that by pleading so the right to an adjudicatory hearing is waived.
(6) That, if the child pleads guilty or nolo contendere, the court may ask the child questions about the offense to which the child has pleaded, and, if those questions are answered under oath, on the record, the answers may later be used against the child in a prosecution for perjury.
(7) The complete terms of any plea agreement including specifically all obligations the child will incur as a result.
(8) That, if the child pleads guilty or nolo contendere to certain sexual offenses, the child may be required to register as a sexual offender.
( 9 ) That, if the child pleads guilty or nolo contendere, and the offense to which the child is pleading is a sexually violent offense or a sexually motivated offense, or if the child has been previously adjudicated for such an offense, the plea may subject the child to involuntary civil commitment as a sexually violent predator on completion of his or her sentence. It shall not be necessary for the trial judge to determine whether the present or prior offenses were sexually motivated, as this admonition shall be given to all children in all cases.8
(10) That, if the child pleads guilty or nolo contendere, and the child is not a United States citizen, the facts underlying the plea may subject the child to deportation pursuant to the laws and regulations governing the United States Citizenship and Immigration Services. It shall not be necessary for the trial judge to inquire as to whether the child is a United States citizen, as this admonition shall be given to all children in all cases.
( d ) Acknowledgment by Child. Before the court accepts a guilty or nolo contendere plea, the court must determine that the child either: c
(1) acknowledges guilt; or
(2) acknowledges that the plea is in the child's best interest, while maintaining innocence.
( e ) Of Record. These proceedings shall be of record. d
( f ) When Binding. Prior to the court's acceptance of a plea, the parties must notify the court of any plea agreement and may notify the court of the reasons for the plea agreement. Thereafter, the court must advise the parties whether the court accepts or rejects the plea agreement and may state its reasons for a rejection of the plea agreement. No plea offer or negotiation is binding until it is accepted by the court after making all the inquiries, advisements, and determinations required by this rule. Until that time, it may be withdrawn by either party without any necessary justification. e
( g ) Withdrawal of Plea When Judge Does Not Concur. If the trial judge does not concur in a tendered plea of guilty or nolo contendere arising from negotiations, the plea may be withdrawn. f
( h ) Failure to Follow Procedures. Failure to follow any of the procedures in this rule shall not render a plea void, absent a showing of prejudice. g
RULE 8.115. DISPOSITION HEARING
(a) Information Available to Court. At the disposition hearing the court, after establishing compliance with the dispositional considerations, determinations, and discussions required by law, may receive any relevant and material evidence helpful in determining the proper disposition to be made. It shall include written reports required by law, and may include, but shall not be limited to, the child's need for substance abuse evaluation and/or treatment, and any psychiatric or psychological evaluations of the child that may be obtained and that are relevant and material. Such evidence may be received by the court and may be relied upon to the extent of its probative value, even though not competent in an adjudicatory hearing. In any case in which it is necessary or consented to by the parties that disposition be pronounced by a judge other than the judge who presided at the adjudicatory hearing or accepted a plea of guilty or nolo contendere, the sentencing judge shall not pronounce disposition until the judge becomes acquainted with what transpired at the adjudicatory hearing, or the facts concerning the plea and the offense, including any plea discussions if a plea of guilty or nolo contendere was entered.
(b)–(e) [No Change]
Committee Notes
[No Change]
RULE 8.201. COMMENCEMENT OF PROCEEDINGS
(a) Commencement of Proceedings. Proceedings are commenced when:
(1) an initial shelter petition is filed;
(2) a petition alleging dependency is filed;
(3) a petition for termination of parental rights is filed; or
(4) a petition for an injunction to prevent child abuse under chapter 39, Florida Statutes, is filed;
(5) a petition or affidavit for an order to take into custody is filed; or
(6) any other petition authorized by chapter 39, Florida Statutes, is filed.
(b) File to Be Opened. Upon commencement of any proceeding, the clerk shall open a file and assign a case number. dependency or termination of parental rights
RULE 8.225. PROCESS, DILIGENT SEARCHES, AND SERVICE OF PLEADINGS AND PAPERS
(a) Summons and Subpoenas.
(1)–(4) [No Change]
(b) Diligent Search. Paternity Inquiry and
(1) Identity Unknown. If the identity of a parent is unknown, and a petition for dependency, shelter care, or termination of parental rights is filed, the court shall conduct the inquiry required by law. The information required by law may be submitted to the court in the form of a sworn affidavit executed by a person having personal knowledge of the facts.
( 1 ) Location Unknown. If the location of a parent is unknown and that parent has not filed a permanent address designation with the court, the petitioner shall 2 complete a diligent search as required by law.undertake
( 2 ) Affidavit of Diligent Search. If the location of a parent is unknown after the diligent search has been completed, the petitioner shall file with the court an affidavit of diligent search executed by the person who made the search and inquiry.3
(3) Court Review of Affidavit. The court must review the affidavit of diligent search and enter an order determining whether the petitioner has completed a diligent search as required by law. In termination of parental rights proceedings, the clerk must not certify a notice of action until the court enters an order finding that the petitioner has conducted a diligent search as required by law. In a dependency proceeding, if the court finds that the petitioner has conducted a diligent search, the court may proceed to grant the requested relief of the petitioner as to the parent whose location is unknown without further notice.
( 4 ) Continuing Duty. After filing an affidavit of diligent search in a dependency or termination of parental rights proceeding, the petitioner, and, if the court requires, the department, are under a continuing duty to search for and attempt to serve the parent whose location is unknown until excused from further diligent search by the court. The department shall report on the results of the continuing search at each court hearing until the person is located or until further search is excused by the court.3
(5) Effect of Paternity Inquiry and Diligent Search.
(A) Failure to serve parents whose identity or residence is unknown shall not affect the validity of an order of adjudication or disposition if the court finds the petitioner has completed a diligent search.
(B) If the court inquiry fails to identify any person as a parent or prospective parent, the court shall so find and may proceed without further notice.
(C) If the inquiry, diligent search, or subsequent search identifies and locates any person who may be a parent or prospective parent, the court shall require notice of the hearing to be provided to that person. That person must then be given an opportunity to become a party to the proceedings by completing a sworn affidavit of parenthood and filing it with the court or the department.
(c) Identity of Parent Unknown.
(1) If the identity of a parent is unknown, and a petition for dependency, shelter care, or termination of parental rights is filed, the court shall conduct the inquiry required by law. The information required by law may be submitted to the court in the form of a sworn affidavit executed by a person having personal knowledge of the facts.
(2) If the court inquiry fails to identify any person as a parent or prospective parent, the court shall so find and may proceed to grant the requested relief of the petitioner as to the unknown parent without further notice.
(d) Identity and Location Determined. If an inquiry or diligent search identifies and locates any person who may be a parent or prospective parent, the court must require that notice of the hearing be provided to that person.
(e) Effect of Failure to Serve. Failure to serve parents whose identity or residence is unknown shall not affect the validity of an order of adjudication or disposition if the court finds the petitioner has completed a diligent search.
( f ) Notice and Service of Pleadings and Papers. c
(1)–(11) [No Change]
RULE 8.226. DETERMINATION OF PARENTHOOD
(a) In General. The court must determine the identity of all parents and prospective parents at the initial hearing in proceedings under chapter 39, Florida Statutes, as provided by law. Nothing in this rule prevents a parent or prospective parent from pursuing remedies under chapter 742, Florida Statutes. The court having jurisdiction over the dependency matter may conduct proceedings under chapter 742, Florida Statutes, either as part of the chapter 39, Florida Statutes, proceeding or in a separate action under chapter 742, Florida Statutes.
(b) Appearance of Prospective Parent.
(1) If a prospective parent appears in the chapter 39, Florida Statutes, proceeding, the court shall advise the prospective parent of the right to become a parent in the proceeding by completing a sworn affidavit of parenthood and filing the affidavit with the court or the department. This subdivision shall not apply if the court has identified both parents of the child as defined by law.
(2) If the prospective parent seeks to become a parent in the chapter 39, Florida Statutes, proceeding, the prospective parent shall complete a sworn affidavit of parenthood and file the affidavit with the court or the department. If a party objects to the entry of the finding that the prospective parent is a parent in the proceeding, or if the court on its own motion requires further proceedings to determine parenthood, the court shall not enter an order finding parenthood until proceedings under chapter 742, Florida Statutes, have been concluded. The prospective parent shall continue to receive notice of hearings as a participant pending the proceedings under chapter 742, Florida Statutes. If no other party objects and the court does not require further proceedings to determine parenthood, the court shall enter an order finding that the prospective parent is a parent in the proceeding.
(3) If the prospective parent is uncertain about parenthood and requests further proof of parenthood, or if there is more than one prospective parent for the same child, the juvenile court may conduct proceedings under chapter 742, Florida Statutes, to determine parenthood. At the conclusion of the chapter 742, Florida Statutes, proceedings, the court shall enter an order determining parenthood.
(4) Provided that paternity has not otherwise been established by operation of law or court order, at any time prior to the court entering a finding that the prospective parent is the parent in the proceeding, the prospective parent may complete and file with the court or the department a sworn affidavit of nonpaternity declaring that the prospective parent is not the parent of the child and waiving all potential rights to the child and rights to further notices of hearing and court filings in the proceeding.
(5) If the court has identified both parents of a child as defined by law, the court shall not recognize an alleged biological parent as a parent in the proceeding until a court enters an order pursuant to law establishing the alleged biological parent as a parent in the proceeding.
RULE 8.260. ORDERS
(a) General Requirements. All orders of the court must be reduced to writing as soon after they are entered as is consistent with orderly procedure, and shall must contain specific findings of fact and conclusions of law, and shall must be signed by the judge as provided by law. shall
(b) Transmittal to Parties. A copy of all orders must be transmitted by the court or under its direction to all parties at the time of entry of the order. shall
(c) [No Change]
(d) Precedence of Orders. Orders of the circuit court hearing dependency matters must be filed in any dissolution or other custody action or proceeding involving the same child. These orders shall must take precedence over other shall orders affecting the placement of, access to, parental time with, adoption of, or parental rights and responsibilities for the same minor child, unless jurisdiction has been terminated. custody and visitation These orders may be filed under seal and need not be open to inspection by the public. They
RULE 8.285. CRIMINAL CONTEMPT
(a)–(b) [No Change]
RULE 8.286. CIVIL CONTEMPT
(a) Applicability. This rule governs indirect civil contempt proceedings in matters related to juvenile dependency. The use of civil contempt sanctions under this rule must be limited to those used to compel compliance with a court order or to compensate a movant for losses sustained as a result of a contemnor's willful failure to comply with a court order. Contempt sanctions intended to punish an offender or to vindicate the authority of the court are criminal in nature and are governed by rule 8.285.
(b) Motion and Notice. Civil contempt may be initiated by motion. The motion must recite the essential facts constituting the acts alleged to be contemptuous. No civil contempt may be imposed without notice to the alleged contemnor and without providing the alleged contemnor with an opportunity to be heard. The civil contempt motion and notice of hearing may be served by mail provided notice by mail is reasonably calculated to apprise the alleged contemnor of the pendency of the proceedings. The notice must specify the time and place of the hearing and must contain the following language: “FAILURE TO APPEAR AT THE HEARING MAY RESULT IN THE COURT ISSUING A WRIT OF BODILY ATTACHMENT FOR YOUR ARREST. IF YOU ARE ARRESTED, YOU MAY BE HELD IN JAIL UP TO 48 HOURS BEFORE A HEARING IS HELD.”
(c) Hearing. In any civil contempt hearing, after the court makes an express finding that the alleged contemnor had notice of the motion and hearing:
(1) The court shall determine whether the movant has established that a prior order was entered and that the alleged contemnor has failed to comply with all or part of the prior order.
(2) If the court finds the movant has established all of the requirements in subdivision (c)(1) of this rule, the court must,
(A) if the alleged contemnor is present, determine whether the alleged contemnor had the present ability to comply with the prior court order; or
(B) if the alleged contemnor fails to appear, set a reasonable purge based on the circumstances of the parties.
The court may issue a writ of bodily attachment and direct that, upon execution of the writ of bodily attachment, the alleged contemnor be brought before the court within 48 hours for a hearing on whether the alleged contemnor has the present ability to comply with the prior court order and, if so, whether the failure to comply is willful.
(d) Order and Sanctions. After hearing the testimony and evidence presented, the court must enter a written order granting or denying the motion for contempt.
(1) An order finding the alleged contemnor to be in contempt must contain a finding that a prior order was entered, that the alleged contemnor has failed to comply with the prior court order, that the alleged contemnor had the present ability to comply, and that the alleged contemnor willfully failed to comply with the prior court order. The order must contain a recital of the facts on which these findings are based.
(2) If the court grants the motion for contempt, the court may impose appropriate sanctions to obtain compliance with the order including incarceration, attorneys' fees and costs, compensatory or coercive fines, and any other coercive sanction or relief permitted by law provided the order includes a purge provision as set forth in subdivision (e) of this rule.
(e) Purge. If the court orders incarceration, a coercive fine, or any other coercive sanction for failure to comply with a prior order, the court must set conditions for purge of the contempt, based on the contemnor's present ability to comply. The court must include in its order a separate affirmative finding that the contemnor has the present ability to comply with the purge and the factual basis for that finding. The court may grant the contemnor a reasonable time to comply with the purge conditions. If the court orders incarceration but defers incarceration for more than 48 hours to allow the contemnor a reasonable time to comply with the purge conditions, and the contemnor fails to comply within the time provided, the movant must file an affidavit of noncompliance with the court. The court then may issue a writ of bodily attachment. Upon incarceration, the contemnor must be brought before the court within 48 hours for a determination of whether the contemnor continues to have the present ability to comply with the purge.
(f) Review after Incarceration. Notwithstanding the provisions of this rule, at any time after a contemnor is incarcerated, the court on its own motion or motion of any party may review the contemnor's present ability to comply with the purge and the duration of incarceration and modify any prior orders.
(g) Other Relief. When there is a failure to comply with a court order but the failure is not willful, nothing in this rule shall be construed as precluding the court from granting such relief as may be appropriate under the circumstances.
RULE 8.340. DISPOSITION HEARINGS
(a) Information Available to Court. At the disposition hearing, the court, after establishing compliance with the dispositional considerations, determinations, and discussions required by law, may receive any relevant and material evidence helpful in determining the proper disposition to be made. It must include written reports required by law, and may include, but shall is not be limited to, any psychiatric or psychological evaluations of the child or his or her parent, caregiver, or legal custodian that may be obtained and that are relevant and material. Such evidence may be received by the court and may be relied upon to the extent of its probative value, even though not competent in an adjudicatory hearing. shall
(b) Disclosure to Parties. All parties are entitled to disclosure of all information in all reports submitted to the court. shall be
(c) Orders of Disposition. The court shall in its written order of disposition include:
(1) the placement or custody of the child;
(2) special conditions of placement and visitation;
(3) evaluation, counseling, treatment activities, and other actions to be taken by the parties, if ordered;when
(4) persons or entities responsible for supervising or monitoring services to the child and parent agencies, and;
(5) continuation or discharge of the guardian ad litem, as appropriate;when
( 6 ) date, time, and location 5 of next scheduled review hearing, as required by law;for subsequent case review
( 7 ) child support payments, if the child is in an out-of-home placement;6
( 8 ) if the child is placed in foster care, the reasons why the child was not placed in the legal custody of an adult relative, legal custodian, or other adult approved by the court and a further determination as to whether diligent efforts were made by the department to locate an adult relative, legal custodian, or other adult willing to care for the child instead of placement with the department; 7
(8) approval of the case plan or direction to amend the case plan within 30 days; and
(9) such other requirements to protect the health, safety, and well-being of the child, to preserve the stability of the child's educational placement, and to promote family preservation or reunification whenever possible; and as are deemed necessary
(10) approval of the case plan as filed with the court. If the court does not approve the case plan at the disposition hearing, the court must set a hearing within 30 days after the disposition hearing to review and approve the case plan.
Committee Notes
[No Change]
RULE 8.345. POST–DISPOSITION RELIEF
(a) [No Change]
(b) Motion for Termination of Supervision or Jurisdiction. Any party requesting termination of agency supervision or the jurisdiction of the court or both shall do so by written motion or in a written report to the court. The court must hear all parties present and enter an order terminating supervision or terminating jurisdiction and supervision or continuing them as previously ordered. The court shall not terminate jurisdiction unless the child is returned to the parent and has been in the placement for at least 6 months, the child is adopted, or the child attains the age of 18 , unless the court has extended jurisdiction. shall
RULE 8.347. MOTION TO SUPPLEMENT ORDER OF ADJUDICATION, DISPOSITION ORDER, AND CASE PLAN
(a) Motion. After the court has entered an order of adjudication of dependency, any party may file a motion for the court to supplement the order of adjudication with findings that a parent or legal custodian contributed to the dependency status of the child pursuant to the statutory definition of a dependent child. The motion may also request that the court supplement the disposition order and the case plan.
(b) Contents.
(1) The motion must identify the age, sex, and name of the children whose parent or legal custodian is the subject of the motion.
(2) The motion must specifically identify the parent or legal custodian who is the subject of the motion.
(3) The motion must allege sufficient facts showing that a parent or legal custodian contributed to the dependency status of the child pursuant to the statutory definition of a dependent child.
(c) Verification. The motion must be signed under oath, stating that the signer is filing the motion in good faith.
(d) Amendments. At any time prior to the conclusion of an evidentiary hearing on the motion, an amended motion may be filed or the motion may be amended by oral motion. A continuance may be granted on motion and a showing that the amendment prejudices or materially affects any party.
(e) Notice.
(1) In General. Parents or legal custodians who have previously been properly served with the dependency petition or who have previously appeared in the dependency proceeding shall be served with a notice of hearing and copies of the motion and the initial order of adjudication of dependency in the same manner as the service of documents that are filed after the service of the initial dependency petition as provided in these rules.
(2) Summons.
(A) Parents or legal custodians who have not been properly served with the dependency petition or who have not previously appeared in the dependency proceeding must be properly served with a summons and copies of the motion and the initial order of adjudication of dependency. The summons must require the person on whom it is served to appear for a preliminary hearing on the motion at a time and place specified, not less than 72 hours after service of the summons.
(B) Upon the filing of the motion and upon request, the clerk shall issue a summons.
(C) The movant shall not be required to serve a summons on a parent or legal custodian who has previously been properly served with the dependency petition or who has appeared in the dependency proceeding.
(D) The summons shall be served in the same manner as service of a dependency petition as required by law.
(E) Service by publication of the motion shall not be required.
(F) If the location of the party to be served is unknown, the court may enter an order granting the motion only if the movant has properly served the person subject to the motion, the person subject to the motion has appeared in the proceeding, or the movant has conducted a diligent search and filed with the court an affidavit of diligent search.
(G) Personal appearance of any person in a hearing before the court on the motion eliminates the requirement for serving process upon that person.
(f) Preliminary Hearing on Motion.
(1) The court must conduct a preliminary hearing and determine whether the parent or legal custodian who is the subject of the motion:
(A) has been properly served with the summons or notice, and with copies of the motion and initial order of adjudication of dependency;
(B) is represented by counsel or is entitled to appointed counsel as provided by law; and
(C) wishes to challenge the motion or consent to the court granting the motion.
(2) If the parent or legal custodian who is the subject of the motion wishes to challenge the motion or if the parent or legal custodian was properly served and fails to appear at the preliminary hearing, the court must schedule an evidentiary hearing on the motion within 30 days.
(3) If the parent or legal custodian who is the subject of the motion wishes to consent to the motion without admitting or denying the allegations of the motion, the court shall enter an order supplementing the initial order of adjudication of dependency based on the sworn allegations of the motion.
(g) Evidentiary Hearing.
(1) Hearing Procedures. The hearing shall be conducted in the same manner and with the same procedures as the adjudicatory hearing on the dependency petition as provided in these rules.
(2) Motion for Judgment Denying Motion. In all proceedings, if at the close of the evidence for the movant, the court is of the opinion that the evidence is insufficient to warrant findings that a parent or legal custodian contributed to the dependency status of the child pursuant to the statutory definition of a dependent child, it may, and on the motion of any party must, enter an order denying the motion for insufficiency of the evidence.
(3) Denial of Motion. If the court, at the conclusion of the evidence, finds that the allegations in the motion have not been sustained, the court shall enter an order denying the motion.
(4) Granting of the Motion. If the court finds that the movant has proven the allegations of the motion, the court shall enter an order granting the motion as provided in these rules.
(h) Supplemental Order of Adjudication.
(1) If the parent or legal custodian consents to the motion and its allegations or if the court finds that the movant has proven the allegations of the motion at an evidentiary hearing, the court shall enter a written order granting the motion and specifying facts that support findings that a parent or legal custodian contributed to the dependency status of the child pursuant to the statutory definition of a dependent child and stating whether the court made the finding by a preponderance of the evidence or by clear and convincing evidence.
(2) If necessary, the court shall schedule a supplemental disposition hearing within 15 days.
(3) The court shall advise the parent who is the subject of the motion that if the parent fails to substantially comply with the case plan, parental rights may be terminated.
(4) If the child is in out-of-home placement, the court shall inquire of the parents whether the parents have relatives who might be considered as placement for the child. The parents shall provide to the court and to all parties the identity and location of the relatives.
(i) Supplemental Disposition Hearing.
(1) Hearing. If necessary, the court shall conduct a supplemental disposition hearing pursuant to the same procedures for a disposition hearing and case plan review hearing as provided by law.
(2) Supplemental Predisposition Study and Case Plan.
(A) A written case plan and a predisposition study prepared by an authorized agent of the department must be filed with the court, served upon the parents of the child, provided to the representative of the guardian ad litem program, if the program has been appointed, and provided to all other parties not less than 72 hours before the supplemental disposition hearing.
(B) The court may grant an exception to the requirement for a predisposition study by separate order or within the judge's order of disposition upon a finding that all the family and child information required by law is available in other documents filed with the court.
(3) Supplemental Order of Disposition. The court shall in its written supplemental order of disposition include:
(A) the placement or custody of the child;
(B) special conditions of placement and visitation;
(C) evaluation, counseling, treatment activities, and other actions to be taken by the parties, when ordered;
(D) the names of the supervising or monitoring agencies, and the continuation or discharge of the guardian ad litem, when appropriate;
(E) the date, time, and location for the next case review as required by law;
(F) child support payments, if the child is in an out-of-home placement;
(G) if the child is placed in foster care, the reasons why the child was not placed in the legal custody of an adult relative, legal custodian, or other adult approved by the court;
(H) approval of the case plan or direction to amend the case plan within 30 days; and
(I) such other requirements as are deemed necessary to protect the health, safety, and well-being of the child.
RULE 8.350. PLACEMENT OF CHILD INTO RESIDENTIAL TREATMENT CENTER AFTER ADJUDICATION OF DEPENDENCY
(a) Placement.
(1)–(10) [No Change]
(11) Hearing on Placement.
(A) At the hearing, the court shall consider, at a minimum, all of the following:
(i) based on an independent assessment of the child, the recommendation of a department representative or authorized agent that the residential treatment or hospitalization is in the child's best interest and a showing that the placement is the least restrictive available alternative;
(ii) the recommendation of the guardian ad litem;
(iii) a case review committee recommendation, if there has been one;
( iii ) the written findings of the evaluation and suitability assessment prepared by a qualified evaluator; andiv
( iv ) the views regarding placement in residential treatment that the child expresses to the court.v
(B) All parties shall be permitted to present evidence and witnesses concerning the suitability of the placement.
(C) If the court determines that the child is not suitable for residential treatment, the court shall order the department to place the child in the least restrictive setting that is best suited to meet the child's needs.
(b)–(d) [No Change]
RULE 8.517. WITHDRAWAL AND APPOINTMENT OF COUNSEL
(a) Order Adjudicating Child Dependent or Terminating Parental Rights. After an order of adjudication of dependency, an order of disposition, or an order terminating parental rights has been entered, the counsel of record for a parent or legal custodian in a dependency proceeding or a parent in a termination of parental rights proceeding shall not be permitted to withdraw as counsel of record until the following have occurred:
(1) The attorney certifies that the attorney has discussed appellate remedies with the parent or legal custodian.
(A) The attorney certifies that after discussing appellate remedies with the parent or legal custodian, the parent or legal custodian does not want to appeal the order; or
(B) The attorney certifies that after discussing appellate remedies with the parent or legal custodian, the parent or legal custodian wants to appeal the order, and
(i) a notice of appeal containing the signatures of counsel and the parent or legal custodian has been filed;
(ii) directions to clerk, if necessary, have been filed;
(iii) a motion to transcribe the requisite proceedings has been filed;
(iv) a designation to the court reporter specifying the proceedings that must be transcribed in order to obtain review of the issues on appeal and designating the parties to receive a copy of the transcripts has been filed; and
(v) an order appointing appellate counsel, if any, has been entered.
Conformed copies of each of these documents shall be attached to the motion to withdraw.
(2) If the attorney has been unable to contact the parent or legal custodian regarding appellate remedies, the attorney certifies the efforts made to contact the parent or legal custodian.
(b) Service of Order Appointing Counsel. Following rendition of an order appointing appellate counsel, the court shall serve a copy of the order on the appointed appellate counsel and the clerk of the appellate court.