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New Rules Expedite Dependency Appeals

Posted: November 18, 2009 Filed under: Case Law, Commentary, Law-Related News

Capping a rule-making odyssey that began in 2005, the Florida Supreme Court adopted rules on November 12, 2009, intended to expedite appellate review in dependency and parental termination cases.1 The Court’s opinion amends three bodies of rules: The Florida Rules of Judicial Administration, the Florida Rules of Juvenile Procedure, and the Florida Rules of Appellate Procedure. The new rules took effect immediately.2

Two of the most significant rules adopted are new Rule of Judicial Administration 2.535(i) and new Rule of Appellate Procedure 9.146(g)(2)(B). Rule 2.535(i) mandates that court reporters and transcriptionists give first priority to transcripts in dependency and parental termination cases “unless otherwise ordered by the court based upon a demonstrated exigency.” Rule 9.146(g)(2)(B) further requires that the transcripts be prepared and filed “[w]ithin 20 days of the date of service of the designation.”3 Prior to the proposal of these new rules, the Commission on District Court of Appeal Performance and Accountability cited delays in the preparation of transcripts as one of the leading causes for delay on appeal.

Under the new rules, a parent who has been declared indigent in the lower court may, unless the trial court revokes the declaration, be presumed indigent for purposes of appeal in order to expedite appointment of appellate counsel and release of the transcript.4 Another change designed to aid transcription appears in an amendment to Florida Rule of Juvenile Procedure 8.525(i)(1) and related forms. This amendment requires the trial court to include the dates of the adjudicatory hearing in orders terminating parental rights in order to eliminate situations in which less than the full record is designated.

New rules also directly impact the work and schedules of dependency court practitioners. For example, new Florida Rule of Appellate Procedure 9.146(g), among other things:

▫ Requires the appellant to file, simultaneously with the notice of appeal, (i) motions for the appointment of appellate counsel and for authorization of payment of transcription costs;5 (ii) directions to the clerk;6 and (iii) a designation to the court reporter, including the name(s) of the individual court reporter(s);7

▫ Requires the appellant to serve the designation on the court reporter the day it is filed and to advise the court reporter that the appeal is from a final order of termination of parental rights or of dependency, Fla. R. App. P. 9.146(g)(2)(B);

▫ Requires the clerk to transmit the record to the district court within five days of the date the court reporter files the transcript(s) or, if a designation to the court reporter has not been filed, within 5 days of the filing of the notice of appeal, Fla. R. App. P. 9.146(g)(2)(C);

▫ Requires the clerk to, simultaneously with transmittal of the record to the district court, serve copies of the record to the Department of Children and Family Services, the guardian ad litem, and the indigent parties or their appointed counsel, Fla. R. App. P. 9.146(g)(2)(C);8

▫ Restricts extensions of time to “extraordinary circumstances in which the extension is necessary to preserve the constitutional rights of a party, or in which substantial evidence exists to demonstrate that without the extension the child’s best interests will be harmed,” and imposes specific pleading requirements for requesting an extension, Fla. R. App. P. 9.146(g)(4)(C);9

▫ Requires service of the initial brief within 20 days of service of the record on appeal or the index to the record on appeal, service of the answer brief within 20 days of service of the initial brief, and service of any reply brief within 10 days of the service of the answer brief, Fla. R. App. P. 9.146(g)(3)(B);

▫ Requires requests for oral argument to be filed “not later than the time when the first brief of that party is due,” Fla. R. App. P. 9.146(g)(5);

▫ Precludes the filing of a response to a timely filed motion for rehearing, rehearing en banc, clarification, or certification, unless the court orders a response, Fla. R. App. P. 9.146(g)(6); and,

▫ Codifies the holding in N.S.H. v. Florida Department of Children and Family Services, 843 So. 2d 898 (Fla. 2003), by requiring appellate counsel who wish to withdraw from representation of an indigent parent to (i) certify that counsel has conscientiously reviewed the record and made a good faith determination that no meritorious grounds support an appeal and (ii) file and serve a motion containing that certification on the parent, Fla. R. App. P. 9.146(g)(4)(B).10

The Supreme Court declined to adopt amendments proposed by the Appellate Court Rules Committee that would have enumerated specifically appealable final and non-final orders. Instead, said the Court, “we conclude that at this point, preservation of the status quo is the preferable resolution.”11 The Court’s decision in that regard leaves unresolved the questions of whether a shelter order is final or non-final and whether, if non-final, a shelter order is reviewable by direct appeal or only by certiorari.12 Likewise, the Court left open the issue of whether any non-final dependency orders may be reviewed on direct appeal under Florida Rule of Appellate Procedure 9.130. As the result of the Fifth District’s recent decision in R.M. v. Department of Children & Families, __ So. 3d __, 34 Fla. L. Weekly D1909 (Fla. 5th DCA Sept. 15, 2009), that issue appears headed for resolution through a live controversy. R.M. directly conflicts with In re J.T. (Department of Children and Family Services v. Heart of Adoptions, Inc.), 947 So. 2d 1212 (Fla. 2d DCA 2007) in terms of what constitutes an “authorized motion” for purposes of direct appeal of a non-final order under Rule 9.130(a)(4).13

Regardless of the questions that remain, the Florida Supreme Court delivered the unmistakable message that counsel and courts alike must endeavor to ensure that cases involving children are decided in “child time.” 14, 15

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1 In re Amendments to the Florida Rules of Judicial Administration, the Florida Rules of Juvenile Procedure, and the Florida Rules of Appellate Procedure – Implementation of the Commission on District Court Of Appeal Performance and Accountability Recommendations, No. SC08-1724, __ So. 3d __, 2009 WL 3763128 (Fla. Nov. 12, 2009).

2 In re Amendments, No. SC08-1724, slip op. at 10.

3 Extensions are available for “extraordinary reasons,” but reporters requesting such extensions must specify the extraordinary reasons and the number of additional days requested. Fla. R. App. P. 9.146(g)(2)(B).

4 Fla. R. App. P. 9.430(d).

5 Fla. R. App. P. 9.146(g)(4)(A).This requirement applies only if indigent parents are involved. The rule also requires that copies of the motions be served on the presiding trial court judge, who is required to promptly rule on the motions.

6 Fla. R. App. P. 9.146(g)(2)(C).

7 Fla. R. App. P. 9.146(g)(2)(B).

8 Non-indigent parents will not automatically receive a copy of the record. Rather, the new rule obligates the clerk to “simultaneously serve copies of the index to all non-indigent parties, and, upon their request, copies of the record or portions thereof at the cost prescribed by law.” Fla. R. App. P. 9.146(g)(2)(C).

9 “The motion shall state that the appeal is from a final order of termination of parental rights or of dependency, and shall set out the extraordinary circumstances that necessitate an extension, the amount of time requested, and the effect an extension will have on the progress of the case.” Fla. R. App. P. 9.146(g)(4)(C). “The extension will be limited to the number of days necessary to preserve the rights of the party or the best interests of the child.” Id.

10 The rule allows the parents 20 days in which to file a pro se brief after an order granting the motion to withdraw is issued. Fla. R. App. P. 9.146(g)(4)(B).

11 In re Amendments, No. SC08-1724, slip op. at 9.

12 The Fourth and Fifth District Courts of Appeal have reviewed shelter orders by direct appeal. See L.M.C. v. Dep’t of Children & Fams., 935 So. 2d 47 (Fla. 5th DCA 2006); M.L. v. Dep’t of Children & Fams., 942 So. 2d 977 (Fla. 4th DCA 2006). Because a shelter order is the first order rendered in a dependency case, it is not preceded by a final order. Therefore, if a shelter order is deemed non-final, it must be reviewed by certiorari because only “non-final orders entered after final order on authorized motions” are reviewable by direct appeal under Florida Rule of Appellate Procedure 9.130(a)(4).

13 Compare In re J.T., 947 So. 2d at 1217 (defining an “authorized motion” under rule 9.130(a)(4) as a motion “directed to some aspect of true finality in the original order or judgment”) with R.M., 34 Fla. L. Weekly D1909 (Fla. 5th DCA Sept. 15, 2009) (holding that an order resulting from a motion authorized by the Rules of Juvenile Procedure may be reviewed by direct appeal under rule 9.130(a)(4)). In addition to this inter-district conflict, the district courts have individually alternated over the years between reviewing non-final dependency orders by direct appeal and applying the harsher standard of review under certiorari jurisdiction. In recent years, at least until the Fifth District’s R.M. decision, the trend has been toward certiorari, but the courts have not overruled earlier decisions invoking jurisdiction under rule 9.130(a)(4). See S.P. v. Dep’t of Children & Fams., 17 So. 3d 878 (Fla. 1st DCA 2009) (identifying many of the inconsistent decisions).

14 “Children are affected by delay in court proceedings far more than are businesses or adults, because their sense of time is different than adults and the need for attachment to promote healthy children is great.” In re Amendments, No. SC08-1724, slip op. at 11 (Pariente, J., concurring) (quoting Report of the District Court of Appeal Performance & Accountability Commission on Delay in Child Dependency/Termination of Parental Rights Appeals at 1).

15 See also Fla. R. Jud. Admin. 2.250(a)(2) (prescribing a standard for deciding cases within 60 days of oral argument or submission of the case for decision without argument); Fla. R. App. P. 9.146(g)(7) (allowing the clerk to issue the mandate “as soon as practicable” when directed by the court).

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