R.W. v. Department of Children & Families

Third District Court of Appeal
State of Florida

Opinion filed March 30, 2016.
Not final until disposition of timely filed motion for rehearing.

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No. 3D15-2838
Lower Tribunal No. 01-15409
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R.W., the Mother,
Appellant,

vs.

The Department of Children & Families, et al.,
Appellees.

An Appeal from the Circuit Court for Miami-Dade County, Jeri B. Cohen,
Judge.

Albert W. Guffanti, for appellant.

Karla Perkins, Appellate Counsel, for appellee Department of Children and
Families; Laura J. Lee (Sanford), Appellate Counsel, for appellee Guardian ad
Litem Program.

Before SUAREZ, C.J., and EMAS and FERNANDEZ, JJ.

EMAS, J.
 R.W. appeals the trial court’s order terminating her parental rights, raising

three claims on appeal. We find no merit in the first two issues raised.1 The third

claim is that the trial court’s participation in the questioning of witnesses at the

adjudicatory hearing constituted an abandonment of the trial court’s role of

neutrality and impartiality. At the final hearing, however, R.W. failed to object to

virtually all of the questions it now relies upon for this claim.2 R.W. asserts that

the trial court’s conduct and participation constituted fundamental error and

deprived R.W. of due process.

Upon the record presented, we find no fundamental error or deprivation of

due process, but we caution the trial court of the importance of maintaining

impartiality and the appearance of impartiality. A trial court may properly

question witnesses “when required by the interests of justice.” § 90.615(2), Fla.

Stat. (2015). Such questioning may be appropriate, in the court’s discretion, to

1 The first claim is that the absence of R.W.’s signature on the previously-entered
case plan compels reversal of the order terminating her parental rights. It is true
that a case plan “must be signed by all parties.” § 39.6011(3), Fla. Stat. (2015);
Fla. R. Juv. P. 8.400 (e). And a parent’s signature on the case plan is evidence that
the parent received the case plan and understood its terms. However, this does not
mean that the failure to obtain a parent’s signature renders the case plan void or
invalidates this petition for termination. In the case at bar there was competent
substantial evidence (including R.W.’s own testimony) that R.W. was offered and
received a case plan, and that she understood the nature, terms and conditions of
that case plan. We find the second claim is without merit and warrants no further
discussion.
2 As to the two occasions in which contemporaneous objections were made, we

find that any error was harmless.

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seek clarification of an issue and in an effort to ascertain the truth. R.O. v. State,

46 So. 3d 124 (Fla. 3d DCA 2010). However, a trial judge must ensure that he or

she does not become an active participant or an advocate in the proceedings and

should not by words or actions make it “appear that his neutrality is departing from

the center.” Riddle v. State, 755 So. 2d 771, 773 (Fla. 4th DCA 2000).

Appellees posit that the concerns over neutrality and impartiality may be

somewhat lessened because this was a nonjury proceeding. This argument misses

the point. One might reasonably argue that there is an additional dimension of

concern for neutrality and impartiality in the context of a jury trial, where a trial

judge’s questioning, comments or conduct may impermissibly influence the jury as

factfinder. Nevertheless, the need to maintain impartiality, and the appearance of

impartiality, is just as vital in a nonjury proceeding, as all parties are “entitled to

nothing less than the cold neutrality of an impartial judge.” State ex rel. Davis v.

Parks, 194 So. 613, 615 (Fla. 1939). See also Sears v. State, 889 So. 2d 956 (Fla.

5th DCA 2004) (applying Parks in the context of a nonjury proceeding). In Parks,

194 So. 2d at 615, the Florida Supreme Court expounded on this principle:

This Court is committed to the doctrine that every litigant is entitled to
nothing less than the cold neutrality of an impartial judge. It is the
duty of Courts to scrupulously guard this right and to refrain from
attempting to exercise jurisdiction in any matter where his
qualification to do so is seriously brought in question.
The exercise of any other policy tends to discredit the
judiciary and shadow the administration of justice.

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It is not enough for a judge to assert that he is free from prejudice. His
mien and the reflex from his court room speak louder than he can
declaim on this point. If he fails through these avenues to reflect
justice and square dealing, his usefulness is destroyed. The attitude of
the judge and the atmosphere of the court room should indeed be such
that no matter what charge is lodged against a litigant or what cause
he is called on to litigate, he can approach the bar with every
assurance that he is in a forum where the judicial ermine is everything
that it typifies, purity and justice. The guaranty of a fair and impartial
trial can mean nothing less than this.

Affirmed.

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