ID. NO. FORMAL PROPOSAL TO AMEND FLORIDA RULE OF APPELLATE PROCEDURE COMES NOW, the undersigned attorney, RYAN THOMAS TRUSKOSKI,

Transcription

1 IN THE SUPREME COURT OF FLORIDA TALLAHASSEE ID. NO. IN RE: PROPOSAL TO AMEND RULE OF APPELLATE PROCEDURE 9.130, / FORMAL PROPOSAL TO AMEND FLORIDA RULE OF APPELLATE PROCEDURE COMES NOW, the undersigned attorney, RYAN THOMAS TRUSKOSKI, ESQ., pursuant to Florida Rule of Judicial Administration 2.130, and hereby requests that this Honorable Court forward this proposal to the Appellate Court Rules Committee. 1. I am a board certified appellate specialist and I have handled approximately 275 appeals, most of which are in juvenile dependency and termination of parental rights cases. I am proposing three changes to Fla.R.App.P as they concern juvenile dependency and termination of parental rights cases under Chapter 39. PROPOSED AMENDMENT 1

2 2. Rule 9.130(a)(3)(c)(iii) allows for non-final appeals from orders concerning child custody in family law matters. 3. The rule should be amended to include child custody in juvenile dependency and termination of parental rights matters. Currently, these orders are excluded from consideration under this rule and are treated as petitions for writs of certiorari by the district courts. See B.A.G. v. Department of Children & Families, 860 So.2d 498 (Fla. 1 st DCA 2003). 4. The seminal case on this issue is the Florida Supreme Court s decision in Department of Health & Rehabilitative Services v. Honeycutt, 609 So.2d 596 (Fla. 1992). The court held that Rule 9.130(a)(3)(c)(iii) does not allow non-final appeals concerning child custody in juvenile dependency matters. 5. The court focused on the literal dictionary definition of the word domestic relations, in holding that it was only meant to apply to traditional matters involving familial relationships such as divorce, and therefore did not apply to juvenile dependency matters There is no logical or constitutional reason to treat child custody in dependency cases differently. The effect on the parent and the child is 1 The current version of the rule names the term family law matters, not domestic relations.

3 the same, no matter what field of law is being dealt with. Child custody in dependency would include parent versus parent decisions of who to place the child with as well as parent versus DCF/foster care decisions. Orders erroneously placing children in foster care are particularly horrific. 7. In Honeycutt, the Florida Supreme Court myopically focused on a strict dictionary definition of the term domestic relations matters. Perhaps the rule was in fact worded poorly. This rule needs to be changed to reflect legislative intent. 8. A parent has an absolute right to appeal any order that affects him or her in juvenile dependency and termination of parental rights cases. See Fla. Stat (1) [juvenile dependency]; (1) [termination of parental rights]; Fla.R.App.P (b). 9. The legislature s intent in this regard could not have been more clear. The legislature used the broadest terms possible and there is no restriction of any kind. The rules of procedure need to reflect this intent. 10. The backbone of this legislative mandate is due to the fact that [a] juvenile dependency proceeding has within it the potential to alter substantially the fundamental right to parent and the right of association with one s offspring.

4 L.W. v. Department of Health & Rehabilitative Services, 695 So.2d 724, 726 (Fla. 1 st DCA 1996). 11. Parents enjoy a fundamental liberty interest in protecting the family unit. See Padgett v. Department of Health & Rehabilitative Services, 577 So.2d 565, 570 (Fla. 1991); In the Interest of R.W., 495 So.2d 133, 134 (Fla. 1986); Lewis v. Dept. of Health and Rehab. Servs., 670 So.2d 1191, 1194 (Fla. 5 th DCA 1996). 12. Additionally, Florida has established a strong public policy in favor of protecting the relationship between natural parents and their children. In the Interest of E.H., 609 So.2d 1289, 1290 (Fla. 1992), citing Burk v. Department of Health and Rehabilitative Services, 476 So.2d 1275 (Fla. 1985). 13. There is no fundamental liberty interest at issue in divorce cases. There is such an interest at issue in every dependency and termination of parental rights case. Dependency and TPR appeals should not be treated differently, especially since the rights at issue are more critical. 14. The current state of the law is having a very negative impact on the rights of parents in this state. Instead of filing a non-final appeal on child custody decisions in Chapter 39, parents are forced to file an extraordinary writ. This is unduly onerous and contrary to legislative intent. A parent has the right to file an actual appeal on all decisions that affect them.

5 15. Parents are substantially prejudiced when district courts review their cases as petitions for writs of certiorari. This is due to the fact that parents must meet an extremely high burden to win such a petition. The parent must prove a departure from a clearly established principle of law resulting in a miscarriage of justice. 16. Additionally, a district court s decision to grant relief is discretionary. Even if a petition is meritorious a district court can decide not to grant relief. The undersigned has personally fell victim to this standard in the Fifth District Court of Appeal. This is not in accord with legislative intent. 17. The Honeycutt court also noted that allowing non-final appeals concerning child custody in dependency matters would place a burden on the workload of the district courts. However, workload concerns to do not trump the constitutionally protected liberty interest enjoyed by the parent and do not trump unambiguous legislative intent. 18. The committee should amend Rule 9.130(a)(3)(c)(iii) to state that there is a right to a non-final appeal concerning orders of: child custody in family law matters and juvenile dependency and termination of parental rights matters. 19. Currently, in the text of this subsection, is the right to appeal orders

6 concerning the right to immediate monetary relief. This should be given its own subsection because it bears no logical relationship to child custody matters. 20. Parents of this state have suffered and will continue to suffer if this rule is not amended. PROPOSED AMENDMENT 2(a) 21. Rule 9.130(a)(5) was implemented to permit non-final appeals from orders denying motions for relief of judgment. However, the rule does not explicitly say this. The rule simply says non-final appeals are permitted on motions filed under Florida Rule of Civil Procedure 1.540, Small Claims Rule 7.190, and Florida Family Law Rule of Procedure Each of these rules is labeled motion for relief from judgment. 22. However, Rule 9.130(a)(5) does not say that these are motions for relief from judgment. The rule forces the reader to physically look up each of the different citations instead of giving the reader notice of what type of rule is at issue. The reader should not have to connect the dots as if in a maze. 23. The rule should say something like, Motions for Relief from Judgment, as provided in.... [all of the different rule numbers] or simply say Motions for Relief from Judgment, so you do not have to list all of the various rules.

7 24. This is far less cryptic and may avoid jurisdiction problems the attorney may have down the road because the rule did not sufficiently alert the attorney. PROPOSED AMENDMENT 2(b) 25. As an extension to proposed amendment (2)(a), the rule fails to list that motions for relief from judgment in juvenile dependency and termination of parental rights cases (Fla.R.Juv.P ) may be appealed under this rule. 26. As discussed above, a parent has an absolute right to appeal any order that affects him or her in such cases. See Fla. Stat (1); (1); Fla.R.App.P (b). 27. Considering that the legislature s language could not be broader, its intent is clear. As such, the failure to list Rule in the text of the rule was not intentional, but rather an oversight. Rule should be explicitly listed under Rule 9.130(a)(5) so there is no confusion of any kind. A district court could hold that the rule only applies to the three fields that are explicitly listed in the text. 28. In a similar vein, I would also propose that the committee add Fla.R.Juv.P to the text of the rule, which provides for motions for

8 extraordinary relief (motions for relief from judgment) in juvenile delinquency cases. 29. Alternatively, as discussed in proposed amendment 2(a), a simple sub-heading entitled motions for relief from judgment may eliminate the need to list each and every one of these rules. 30. In sum, I thank the Rules Committee for taking the time to review this proposal. The parents of the State of Florida desperately need this Committee s help. CERTIFICATE OF SERVICE This proposal was respectfully submitted by the undersigned attorney to the Clerk of the Supreme Court of Florida on the day of July RYAN THOMAS TRUSKOSKI, ESQ. RYAN THOMAS TRUSKOSKI, P.A.

9 Board Certified Appellate Specialist P.O. Box Orlando, FL (407) Florida Bar No