Third District Court of Appeal
State of Florida
Opinion filed August 17, 2022.
Not final until disposition of timely filed motion for rehearing.
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No. 3D22-1108
Lower Tribunal No. 19-15463
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M.S.,
Petitioner,
vs.
Department of Children and Families and Guardian ad Litem
Program,
Respondents.
On Petition for Writ of Certiorari from the Circuit Court for Miami-Dade
County, Denise Martinez-Scanziani, Judge.
Siverson Law Firm PLLC, and Scott E. Siverson (Winter Garden), for
petitioner.
Karla Perkins, for respondent, Department of Children and Families,
and Sara Elizabeth Goldfarb, and Desirée Erin Fernández (Tallahassee), for
respondent, Guardian ad Litem Program.
Before SCALES, MILLER, and GORDO, JJ.
MILLER, J.
Petitioner, M.S., seeks certiorari relief from a protective order
prohibiting a post-trial deposition of a recanting child witness in the
underlying termination of parental rights proceedings. Petitioner contends
the trial court violated his due process rights by divesting him of the ability to
examine the child witness outside of court prior to an evidentiary hearing
relating to the recantation. Finding petitioner has failed to demonstrate a
departure from the essential requirements of law resulting in irreparable
harm, we deny the petition.
BACKGROUND
The mother of the child witness began cohabitating with petitioner over
a decade ago, and the two now share a daughter in common. The child
witness lived with petitioner, along with her mother and half-sister, until 2019.
During that time, she maintained contact with her biological father.
In October of 2019, the child witness informed a mental health
coordinator at her school that petitioner had sexually abused her over a span
of several years. The child witness was brought before a trust counselor and
reiterated the allegations. She further asserted that her parents were aware
of the abuse. School officials contacted the Department of Children and
Families and law enforcement.
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The child witness was interviewed multiple times by various
individuals, including a forensic interviewer and a law enforcement officer.
During each of the interviews, she recapitulated the allegations and
maintained that her parents knew about the abuse.
The Department filed a consolidated petition seeking to terminate
petitioner’s parental rights to his daughter and both parents’ parental rights
to the child witness. A trial convened, and the child witness was summoned
to testify. She was examined for approximately eight hours over the course
of two days. During her testimony, she confirmed the allegations but claimed
she lied earlier when she told others her parents were aware of the abuse.
Following the trial, petitioner successfully moved to disqualify the
presiding judge. A successor judge granted a motion for new trial, at which
the child’s prior trial testimony was admitted into evidence. The parties were
then granted leave to recall the child, but all declined.
At the conclusion of the trial, the trial court terminated petitioner’s
parental rights to his daughter and both parents’ parental rights to the child
witness. Immediately after the judgment was rendered, the child emailed the
judge. In her email, she stated that she had fabricated the allegations
against petitioner at the urging of her paternal grandmother in a misguided
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effort to rekindle the relationship between her mother and her biological
father.
The trial court commenced proceedings to verify the authenticity of the
email and vacated the final judgment. The court then scheduled an
evidentiary hearing to determine whether there existed “new and material
evidence, which, if introduced at the hearing, would probably have changed
the court’s decision and could not with reasonable diligence have been
discovered before and produced at the hearing.” Fla. R. Juv. P. 8.265(a)(4).
Petitioner filed an emergency motion to depose the child in advance of
the hearing. Both the Department and the court-appointed guardian ad litem
separately sought protective orders. The court ultimately granted the
protective order and precluded petitioner and the mother from deposing the
child before the hearing. The instant petition ensued.
LEGAL ANALYSIS
“Certiorari relief is an extraordinary remedy that is granted in only
limited circumstances.” Hepco Data, LLC v. Hepco Med., LLC, 301 So. 3d
406, 409 (Fla. 2d DCA 2020). Such relief “is warranted when a nonfinal
order: (1) cannot be remedied on postjudgment appeal, (2) results in material
injury for the remainder of the case, and (3) departs from the essential
requirements of law.” A.H. v. Dep’t of Child. & Fams., 277 So. 3d 704, 707
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(Fla. 3d DCA 2019). A “departure from the essential requirements of law” is
more than mere legal error; it requires a showing of “a violation of a clearly
established principle of law resulting in a miscarriage of justice.” Combs v.
State, 436 So. 2d 93, 95–96 (Fla. 1983).
The denial of discovery seldom warrants certiorari relief because,
typically, any resulting harm is capable of remedy on plenary appeal. See
Palmer v. WDI Sys., Inc., 588 So. 2d 1087, 1088 (Fla. 5th DCA 1991). There
is a well-settled exception to this general rule. When the pretrial deposition
of a material witness is denied absent a finding of good cause, this court and
others have granted certiorari review. See Sabol v. Bennett, 672 So. 2d 93,
94 (Fla. 3d DCA 1996); Medero v. Fla. Power & Light Co., 658 So. 2d 566,
567–68 (Fla. 3d DCA 1995).
The rationale for this exception is simple. Ordinarily, the harm
associated with the denial of an essential deposition cannot be corrected on
appeal since “there would be no practical way to determine after judgment
what the testimony would be or how it would affect the result.” Medero, 658
So. 2d at 567 (quoting Travelers Indem. Co. v. Hill, 388 So. 2d 648, 650 (Fla.
5th DCA 1980)).
Here, the child’s original allegations formed the basis of the termination
petition, and her recantation has the potential to cast doubt on the veracity
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of the testimony received during the trial. Hence, she is indubitably a
material witness.
The posture of this case, however, substantially differs from those
cases in which the denial of a deposition warranted relief in certiorari. First,
the challenged order precluded a post-trial, rather than a pretrial, deposition,
and petitioner has cited no authority that would support the proposition such
a deposition is a matter of right. Second, in each case where the denial of a
deposition was deemed worthy of certiorari review, the petitioning party was
deprived of formal access to the witness. In this case, the trial court has
ordered the child witness to appear in court for further examination by the
parties. Third, unlike in other cases, here, the trial court found good cause
for denying the deposition request. We therefore turn our analysis to
whether that finding is supported.
Section 39.801(1), Florida Statutes (2022), provides that “[a]ll
procedures . . . in termination of parental rights proceedings shall be
according to the Florida Rules of Juvenile Procedure unless otherwise
provided by law.” Florida Rule of Juvenile Procedure 8.245(g)(1)(A), in turn,
permits a party to a termination proceeding to take the deposition of “any
person who may have information relevant to the allegations of the petition.”
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Petitioner argues that these rules demand he be afforded an unfettered
right to examine the child outside the presence of the court. Depositions of
children in juvenile proceedings implicate unique considerations. “The rules
and statutes . . . permit the court to regulate the number of times a child
testifies by limiting depositions and permitting the perpetuation of testimony.”
Troy M. Farquhar, Adjudicatory Hearing in Dependency Cases, in Fla. Juv.
L. & Prac. § 14.4 (16th ed. 2020).
To that end, section 92.55(4), Florida Statutes (2022), applicable to
victims or witnesses under the age of eighteen and sexual offense victims
and witnesses, among others, provides, in relevant part: “In addition to such
other relief provided by law, the court may enter orders limiting the number
of times that a child, a person who has an intellectual disability, or a sexual
offense victim or witness may be interviewed, [or] prohibiting depositions of
the victim or witness . . . .” Similarly, Florida Rule of Juvenile Procedure
8.245(i)(1) authorizes the trial court to preclude or limit the taking of a
deposition of any witness or victim under the age of sixteen “for good cause
shown.” Factors to be considered by the court in determining whether good
cause exists are further codified within the rule and include the age of the
child, the nature of the allegations, the relationship between the child and the
alleged perpetrator, anticipated adverse effects on the child, the manifest
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best interests of the child, and previous examinations involving the child. Fla.
R. Juv. P. 8.245(i)(3).
In the instant case, the child witness is under the age of eighteen and
a purported victim of sexual abuse. Further, the judge duly considered
additional rule-based factors before ultimately concluding good cause
justified granting the protective order. The challenged order contained
express findings that the child is fourteen years of age, the allegations
concern sexual abuse, the alleged perpetrator is in a familial relationship with
the child, the child has been interviewed on multiple occasions, and the child
will potentially suffer adverse effects if interviewed outside of court. These
findings comport with the applicable legislative considerations.
Petitioner contends, however, that no expert has directly opined the
deposition should not proceed due to anticipated prospective harm to the
child. While this is technically correct, expert testimony of record established
the child suffers from post-traumatic stress disorder, depression, and an
adjustment disorder. Thus, the adverse effect finding is not untethered to
any evidence.
Petitioner further asserts that, because the newly discovered
statement is a recantation, the trial court improperly relied upon previous
interviews in determining good cause. By the time the child testified at the
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first trial, she had retracted several of her prior statements and admitted to
lying. The successor judge extended an unclaimed opportunity to petitioner
and all other parties to recall the child as a witness. In view of this
chronology, the existence of the prior interviews cannot be deemed wholly
irrelevant.
Further, the relevant analytical framework does not lend itself to any
bright-line rule. Instead, as is consistent with the “active participation of the
judge” envisioned in termination proceedings, the trial court is endowed with
broad discretion to consider any relevant factors in limiting the number of
times a child is interviewed and imposing any other such limitations as may
be appropriate. S.B. v. Dep’t of Child. & Fams., 851 So. 2d 689, 693 (Fla.
2003); see § 92.55(4), Fla. Stat. Here, the trial court considered all statutory
factors and, rather than denying access to the child, merely required that the
threshold examination concerning the recantation occur in open court. The
effect of this ruling is that the parties remain free to explore the timing and
details of the disclosure.
Under these circumstances, we conclude that petitioner has failed to
establish a departure from the essential requirements of law resulting in
irreparable harm. Accordingly, we deny the petition.
Petition denied.
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