IN RE: AMENDMENTS TO the FLORIDA RULES OF JUVENILE PROCEDURE - 2018 REGULAR-CYCLE REPORT. (2018)

We have for consideration The Florida Bar's Juvenile Court Rules Committee's (JCR Committee) regular-cycle report of proposed amendments to the Florida Rules of Juvenile Procedure. See Fla. R. Jud. Admin. 2.140(b)(4).¹ We adopt the majority of the unopposed proposals and either modify or decline to adopt, at this time, the two opposed proposals as well as several of the other proposed amendments.

BACKGROUND

The JCR Committee proposes amendments to Florida Rules of Juvenile Procedure 8.005 (Ordering Children into Custody); 8.045 (Notice to Appear); 8.060 (Discovery); 8.080 (Acceptance of Guilty or Nolo Contendere Plea); 8.085 (Prehearing Motions and Service); 8.090 (Speedy Trial); 8.100 (General Provisions for Hearings); 8.110 (Adjudicatory Hearings); 8.255 (General Provisions for Hearings); 8.257 (General Magistrates); 8.320 (Providing Counsel to Parties); 8.425 (Permanency Hearings); and 8.435 (Reinstatement of Jurisdiction for Young Adult); and forms 8.947 (Disposition Order—Delinquency); 8.964 (Dependency Petition); 8.965 (Arraignment Order); and 8.991 (Final Order Dismissing Petition for Judicial Waiver of Parental Notice of Termination of Pregnancy). The Committee also proposes adding new form 8.953 (Waiver of Rights), and deleting form 8.974 (Petition to Extend or Reinstate Court's Jurisdiction). Consistent with rule 2.140(b)(2), the JCR Committee published its proposals for comment prior to filing them with the Court. The JCR Committee received one comment addressing a proposal not included in the Committee's report. The Board of Governors of The Florida Bar unanimously approved all the proposals.

The Court published the proposals for comment after they were filed. The Civil Procedure Rules Committee (CivPR Committee) filed a comment with the Court raising concerns about proposed new rule 8.255(e) (Taking Testimony), which addresses the use of communication equipment, suggesting that the JCR Committee should coordinate its proposal with amendments to Florida Rule of Judicial Administration 2.530 (Communication Equipment) and the civil rules currently being developed by the CivPR Committee and the Rules of Judicial Administration Committee (RJA Committee). The JCR Committee filed a response declining to follow that suggestion.

After the comment period ended, the JCR Committee filed a notice of filing providing the Court with a comment by Robert Blaise Trettis, the Public Defender for the Eighteenth Judicial Circuit, addressing the proposed amendments to juvenile rule 8.080 (Acceptance of Guilty or Nolo Contendere Plea) that would title subdivision (c)(10) of that rule “Immigration Consequences” and require the court, when accepting a plea to a delinquency charge, to ensure that the child understands the potential immigration consequences of entering the plea. Mr. Trettis pointed out that the Court had previously rejected substantially the same amendments to Florida Criminal Rule of Procedure 3.172 (Acceptance of Guilty or Nolo Contendere Plea) in In re Amendments to the Florida Rules of Criminal Procedure, 188 So.3d 764, 766 (Fla. 2015). He therefore urged the JCR Committee to withdraw its proposed amendments to the juvenile rule. The JCR Committee declined to withdraw the proposed amendments.

In light of the issues raised in the comments concerning the proposed amendments to rule 8.080(c)(10) and proposed new rule 8.255(e), as well as the Court's unrelated concerns about the proposed amendments to rule 8.090(m)(3) (Remedy for Failure to Try Respondent Within the Specified Time), the Court held oral argument on those three proposals.

AMENDMENTS

After considering the proposed amendments, the comments submitted to the JCR Committee and filed with the Court, and the JCR Committee's responses, and having heard oral argument, we adopt the majority of the unopposed amendments as proposed. However, as explained below, we modify the proposed amendments to rule 8.080(c)(10) and proposed new form 8.953 to address only the “deportation consequences” of a juvenile entering a plea to a delinquency charge. We also decline to adopt, at this time, the proposed amendments to rule 8.090(m)(3) that would establish a single 15-day speedy trial recapture window, proposed new rule 8.255(e) addressing the use of communication equipment, and the related amendment to rule 8.257(d)(3).² Instead, we direct the JCR Committee to coordinate its efforts as to those rule amendments with other Florida Bar rules committees, as explained below.

Modified and Rejected Proposals

First, we decline to amend juvenile rule 8.080(c)(10) as proposed. That rule currently addresses the deportation consequences of a child entering a plea of guilty or nolo contendere to a delinquency change. The JCR Committee urges the Court to amend the rule to address potential “immigration consequences” of a juvenile entering a plea. Instead, we modify the proposed amendments to the juvenile rule to address only “deportation consequences,” consistent with the Court's limitation of a similar proposal by the Criminal Procedure Rules Committee (CrimPR Committee) to amend Florida Rule of Criminal Procedure 3.172(c)(8). See In re Amends. to Fla. Rules of Crim. Pro., 188 So.3d at 766.

New “child friendly” form 8.953 (Waiver of Rights) was proposed to ensure that juveniles understand the charges against them and the potential consequences of pleading nolo contendere or guilty. Consistent with our limiting juvenile rule 8.080(c)(10) to “deportation consequences,” we have changed item 6(b) “immigration issues” in the new form to “deportation issues.”

Next, we decline to adopt, at this time, the proposed amendments to rule 8.090(m)(3) that would establish the single 15-day speedy-trial recapture window suggested by Justice Pariente in her concurring opinion in State v. S.A., 133 So.3d 506, 509-10 (Fla. 2014) (Pariente J., concurring). Instead, we direct the JCR Committee to work with the CrimPR Committee to coordinate amendments to the juvenile and criminal speedy-trial rules, in order to ensure continued consistency in the time frames in those rules. Id. at 510 (recognizing that the Court “has interpreted the nearly identical language of the juvenile and adult [speedy-trial] rules consistently”).

We also decline to adopt, at this time, proposed new juvenile rule 8.255(e) (Taking Testimony), which would address the use of communication equipment in dependency proceedings. And we direct the JCR Committee to work with the RJA Committee to ensure that any proposed juvenile rule addressing the use of communication equipment is consistent with Florida Rule of Judicial Administration 2.530 (Communication Equipment) or any amendments to that rule, which, according to the CivPR Committee, are currently being developed. See In re Amends. to Fla. Rules of Jud. Admin., 73 So.3d 210, 211-12 (Fla. 2011) (explaining that judicial administration rule 2.530 is the rule of general application for the use of communication equipment in all types of cases). Because we decline to adopt new rule 8.255(e), we also decline to adopt the proposed amendment to rule 8.257(d)(3) that would replace the reference to “Florida Rule of Judicial Administration 2.530” with “these rules.”

More Significant Amendments

We discuss the more significant amendments that we adopt as proposed below.

Subdivision (b) is added to rule 8.005 (Ordering Children Into Custody) and a sentence is added to rule 8.045(g) (Failure to Appear) to prohibit the court from issuing a custody order based on a child's failing to appear unless there is evidence that the child willfully failed to appear.

New subdivision (a)(2)(A)(i)h. is added to rule 8.060 (Discovery) to include informant witnesses who will offer testimony concerning the statements of a child charged with a delinquent act as Category A witnesses. New subdivisions (a)(2)(L)(i)–(a)(2)(L)(vi) require the state to disclose to the child or the child's counsel and permit the inspection, copying, testing, and photographing of any material or information that has been provided by an informant witness. “Names and addresses of” all persons whom the child expects to call as witnesses is added to subdivision (b)(1)(A) to specify the information that the child must include in the witness information provided to the petitioner.

A number of amendments are made to rule 8.100 (General Provisions for Hearings) concerning the use of restraints on the child. The first sentence in subdivision (b) (Use of Restraints on the Child) is amended to replace “may” with “shall,” and add “cloth and leather restraints, or other similar items” to the list of examples of instruments of restraint that “shall not be used on a child during a court proceeding,” except as provided in the rule. That sentence is further amended to require a court order, prior to the child's appearance in the courtroom, before the child can be restrained during a court proceeding. A second sentence is created emphasizing that all instruments of restraint must be removed prior to the child's appearance unless “after an individualized assessment of the child,” the court makes the requisite findings. Several new subdivisions are added. New subdivision (b)(3) specifies the factors the court must consider when making a finding that the use of restraints is necessary. New subdivision (b)(4) requires the court to give the child's attorney an opportunity to be heard before ordering the use of restraints and that counsel be appointed for the hearing if the child qualifies for such appointment and does not waive counsel in writing. New subdivision (b)(5) requires that if the court orders restraints be used, the court must make specific and individualized findings of facts in support of the order and the least restrictive restraints must be used. And, if restraints are ordered, the child must be able to use his or her hands for limited movement that allows the child to read and handle documents necessary to the hearing. Finally, new subdivision (b)(6) prohibits a child from being restrained using restraints fixed to a wall, floor, or furniture.

Subdivision (a)(2) of rule 8.435 (Reinstatement of Jurisdiction for Young Adult) is amended to require a petition for reinstatement of jurisdiction for a young adult reentering extended foster care to indicate whether the young adult has a special need requiring appointment of counsel as required by section 39.01305, Florida Statutes. New subdivision (c)(3) requires that in the order on the petition for reinstatement of jurisdiction, the court appoint an attorney to represent a young adult with special needs who is not represented by an attorney. Rule 8.320 (Providing Counsel to Parties) is similarly amended to add new subdivision (a)(4) to require the court to “appoint an attorney to represent a child with special needs as defined in chapter 39, Florida Statutes, and who is not already represented by an attorney.”

CONCLUSION

Accordingly, we amend the Florida Rules of Juvenile Procedure as reflected in the appendix to this opinion. New language is indicated by underscoring; deletions are indicated by struck-through type. The amendments shall become effective January 1, 2019, at 12:01 a.m.

It is so ordered.

APPENDIX

FOOTNOTES

1.   We have jurisdiction. See art. V, § 2(a), Fla. Const.

2.   We also make a minor technical change to form 8.991 (Final Order Dismissing Petition for Judicial Waiver of Parental Notice of Termination of Pregnancy).

PER CURIAM.

CANADY, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA, and LAWSON, JJ., concur.