SC04-97 – Amendments To The Florida Rules Of Juvenile Procedure

SUPREME COURT CASES

Laws-info.com » Cases » Florida » Supreme Court » 2005 » SC04-97 – Amendments To The Florida Rules Of Juvenile Procedure – Corrected Opinion

SC04-97 – Amendments To The Florida Rules Of Juvenile Procedure – Corrected Opinion

State: Florida

Court: Supreme Court

Docket No: sc04-97

Case Date: 02/03/2005

Plaintiff: SC04-97 – Amendments

Defendant: The Florida Rules Of Juvenile Procedure – Corrected Opinion

Preview:Supreme Court of Florida
No. SC04-97
AMENDMENTS TO THE FLORIDA RULES
OF JUVENILE PROCEDURE.
[January 27, 2005]
CORRECTED OPINION
PARIENTE, C. J.
We have for consideration the biennial report of proposed rule changes filed
by The Florida Bar's Juvenile Court Rules Committee (Rules Committee), in
accordance with Florida Rule of Judicial Administration 2.130(c)(4).  We have
jurisdiction.  See art. V, § 2(a), Fla. Const.
BACKGROUND
The Rules Committee proposes amendments to Florida Rules of Juvenile
Procedure 8.165, Providing Counsel to Parties; 8.203, Application of Uniform
Child Custody Jurisdiction Act; 8.240, Computation and Enlargement of Time;
8.245, Discovery; 8.255, General Provisions for Hearings; 8.290, Dependency
Mediation; 8.300, Taking Into Custody; 8.305, Shelter Petition, Hearing, and

Order; 8.315, Arraignments and Prehearing Conferences; 8.325, Answers and
Pleadings; 8.400, Case Plans; 8.410, Approval of Case Plans; 8.415, Judicial
Review of Dependency Cases; 8.500, Petition; 8.505, Process and Service; 8.510,
Advisory Hearing and Pretrial Status Conferences; 8.515, Providing Counsel to
Parties; 8.525, Adjudicatory Hearings; 8.535, Post-Disposition Hearings; and
8.603, Application of Uniform Child Custody Jurisdiction Act.  Further, the Rules
Committee proposes amendments to forms 8.908, Summons; 8.911, Uniform Child
Custody Jurisdiction Act Affidavit; 8.959, Summons for Dependency
Arraignment; 8.960, Shelter Petition; and 8.979, Summons for Advisory Hearing.
Finally, the Rules Committee proposes new rule 8.257, General Magistrates,
governing the use of general magistrates in dependency proceedings.1  In
accordance with Florida Rule of Judicial Administration 2.130(c)(2), the Rules
Committee submitted its proposals to the Board of Governors of The Florida Bar
and published the proposals for comment.  The Board of Governors unanimously
1.   The Rules Committee initially proposed new rule 8.257, General Masters.
However, the 2004 Legislature passed chapter 2004-11, Laws of Florida, which
redesignates "masters" and "general or special masters" as "general or special
magistrates."  This act took effect on October 1, 2004.  See ch. 2004-11, § 104,
Laws of Fla.  Because the amendments proposed by the Rules Committee will
become effective after this date, the Rules Committee sought to amend its petition
to substitute "magistrate" for "master" in proposed rule 8.257.  On April 29, 2004,
the Court granted the Rules Committee's motion to amend its petition.
-2-

approved the proposed changes.  After the proposals were filed with the Court, we
published the proposals for comment. The Court received one comment in support
of the Rules Committee's proposal to amend rule 8.315, Arraignments and
Prehearing Conferences.
ANALYSIS
After considering the proposed amendments and hearing oral argument, we
adopt almost all of the Rules Committee's amendments as proposed.  However, as
explained more fully below, we decline to adopt certain proposed amendments to
rule 8.165, Providing Counsel to Parties, at this time.  Rather than describe each
amendment, we focus on the more significant amendments and the amendments
that we believe warrant explanation.
I.  RULE 8.165--PROVIDING COUNSEL TO PARTIES
Rule 8.165, Providing Counsel to Parties, is the procedural rule that
effectuates the constitutional right that each juvenile has to counsel.  The rule
differs in certain material ways from the companion procedural rule governing
counsel for adults.2
2.   Florida of Rule of Criminal Procedure 3.111(d)(3) provides that
"[r]egardless of the defendant's legal skills or the complexity of the case, the court
shall not deny a defendant's unequivocal request to represent himself or herself, if
the court makes a determination of record that the defendant has made a knowing
and intelligent waiver of the right to counsel."  In contrast, Florida Rule of Juvenile
-3-

The Rules Committee proposes to amend rule 8.165 in three ways.  First, it
proposes that the rule require that a child be given a meaningful opportunity to
confer with an attorney before waiving counsel in a delinquency proceeding.
Second, it proposes that the rule require that the waiver always be in writing, as
opposed to the current language of the rule that requires a juvenile's waiver to be in
writing only if the waiver is made at the time of a guilty or no contest plea or at the
adjudicatory hearing.  Third, the Rules Committee proposes a new rule
subdivision, (b)(3), to require that when a child is entering a plea or being tried for
a delinquent act, a written waiver of counsel be submitted to the court in the
presence of a parent, a legal custodian, a responsible adult relative, or an attorney
who has conferred with the child pursuant to subdivision (a) of the rule.  Under this
new subdivision, the aforementioned individual must also verify that he or she has
discussed the decision to waive counsel with the child and that the child's decision
to waive counsel appears to be knowing and voluntary.
The proposed amendments to rule 8.165 are based upon the unanimous
recommendation of The Florida Bar Commission on the Legal Needs of Children
Procedure 8.165(b)(3) precludes the acceptance of a waiver of counsel "where it
appears that the party is unable to make an intelligent and understanding choice
because of mental condition, age, education, experience, the nature or complexity
of the case, or other factors."
-4-

(the Commission).  The Commission, which was an interdisciplinary statewide
commission appointed by The Florida Bar, took testimony and considered how to
improve the legal needs of children.  The Commission's stated mission was to
recommend ways "to help children who appear in Florida's courtrooms in any
capacity, whether as victims, witnesses, defendants, or respondents."  Final Report
of The Florida Bar Commission on the Legal Needs of Children, 3 (2002).  In its
report, the Commission noted that a "disturbing number" of children waive their
right to counsel in delinquency proceedings.  See id. at 5.  The three amendments
to rule 8.165 were the only suggested rule amendments among the Commission's
many recommendations.
A substantial majority of the Rules Committee voted to adopt the
Commission's proposed amendments to rule 8.165.  In recommending that the
Court adopt the proposed amendments, the Rules Committee noted "that the
Commission was concerned with the large number of children who waive their
right to an attorney, thus making the 'right to an attorney' in delinquency
proceedings in Florida illusory."  The Rules Committee further stated that the
purpose of the amendments is to implement a juvenile's constitutional right to
counsel.  The Rules Committee expressed the belief that the proposal would reduce
the reversals on appeal that occur because a trial court has failed to ensure that a
-5-

juvenile's waiver of counsel is knowing and voluntary.
It is important to note that the Steering Committee on Families and Children
in the Court (the Steering Committee) voted to support the Rules Committee's
proposals as well.  As one of its many tasks, the Steering Committee is charged
with reviewing issues related to the availability of representation of children as
reported by The Florida Bar Commission on the Legal Needs of Children and the
Senate Interim Report on the Legal Needs of Children, and considering
recommendations within the province of this Court.  In addition to the Steering
Committee's support, the Florida Public Defender Association (FPDA) has also
endorsed the amendments to rule 8.165.  At oral argument, Ward Metzger,
speaking on behalf of the FPDA, stated that the public defenders have agreed to
consult with juveniles prior to any waiver of counsel.  After oral argument, in a
motion to provide additional information and comments, Metzger further stated
that the public defenders do not construe the proposed amendment to rule 8.165(a)
to require appointment within the meaning of chapter 27, Florida Statutes (2004).
Although the public defenders stated that they do not anticipate a direct fiscal
impact because in many circuits these procedures are already being followed,
supplemental comments filed by the FPDA indicate that at least two circuits, the
Sixth and the Twelfth, may experience a significant fiscal impact, including the
-6-

need for additional employees, should rule 8.165 be amended as proposed.3
In considering the proposed amendments to rule 8.165, the Court considered
the history of juvenile representation in delinquency proceedings in Florida.  Prior
to 1967, juvenile court was widely viewed as not requiring the procedural
formalities generally afforded defendants in criminal and civil proceedings.  See In
re Gault, 387 U.S. 1, 15 (1967) ("The apparent rigidities, technicalities, and
harshness which [earlier courts] observed in both substantive and procedural
criminal law were . . . discarded [in juvenile proceedings].").  However, in 1967,
recognizing the lack of procedural protections for children in these settings, the
United States Supreme Court held that juveniles in delinquency proceedings have a
right to counsel:
The juvenile needs the assistance of counsel to cope with problems of
law, to make skilled inquiry into the facts, to insist upon regularity of
the proceedings, and to ascertain whether he has a defense and to
prepare and submit it.  The child requires the guiding hand of counsel
at every step in the proceedings against him.
Id. at 36 (footnote omitted) (emphasis added).  In Florida, this right was
subsequently codified in section 985.203(1), Florida Statutes (2004), which states
that a child is entitled to representation by legal counsel at all stages of any
3.   This impact could be related to the fact that in the Sixth and the Twelfth
Circuits, the current percentages of unrepresented children are quite high—50%
and 75%, respectively.
-7-

delinquency proceeding.
Some of the procedural protections afforded juveniles during a delinquency
proceeding, including a juvenile's right to counsel, are largely premised on the
notion that juveniles have only a limited understanding of the justice system.  See
State v. T.G., 800 So. 2d 204, 211 (Fla. 2001) ("[I]t is extremely doubtful that any
child of limited experience can possibly comprehend the importance of counsel.").
In light of a juvenile's potentially limited understanding of trial procedure, this
Court has further noted that "the waiver of counsel inquiry is especially significant
in juvenile cases because children may not fully comprehend the importance of
counsel or the consequences of waiving the right to counsel."  Id. at 212.
Therefore, "courts should be even more careful when accepting a waiver of counsel
from juveniles."  Id. at 211.
Notwithstanding this Court's previously noted concerns regarding a
juvenile's potentially unknowing and involuntary waiver of counsel, there are
numerous recent examples of judges improperly accepting juveniles' waivers of
counsel, resulting in reversal on appeal.  See, e.g., State v. B.P., 810 So. 2d 918
(Fla. 2002) (approving district court's decision holding that even absent a motion to
withdraw a plea, failure to advise a juvenile of right to counsel in accordance with
rule 8.165 is reviewable and correctable on appeal and finding that the denial of
-8-

counsel constituted fundamental error); F.K.H. v. State, 841 So. 2d 645 (Fla. 2d
DCA 2003) (reversing and remanding a determination of delinquency and
placement of juvenile on probation where trial court failed to inquire into juvenile's
waiver of counsel at the plea hearing and failed to renew an offer of counsel at the
disposition hearing); E.C.M. v. State, 835 So. 2d 1280 (Fla. 2d DCA 2003)
(finding that trial court committed reversible error when it failed to advise juvenile
of right to counsel at restitution hearing even though the juvenile had previously
waived counsel at arraignment); D.A. v. State, 831 So. 2d 815 (Fla. 4th DCA 2002)
(finding that trial judge failed to conduct a thorough and proper inquiry to
determine juvenile's comprehension of the offer of appointed counsel prior to
accepting waiver of counsel); M.Q. v. State, 818 So. 2d 615 (Fla. 5th DCA 2002)
(finding that although judge made an offer of counsel at hearing, inquiry was
insufficient to satisfy the rule as to what juvenile's substantive rights were, as well
as whether juvenile knowingly waived them); S.A. v. State, 816 So. 2d 1201 (Fla.
4th DCA 2002) (reversing commitment and remanding for new plea hearing where
trial court failed to adequately inquire into juvenile's waiver of right to counsel as
required by Florida Rule of Juvenile Procedure 8.165(b)(2)); T.M. v. State, 811 So.
2d 837 (Fla. 4th DCA 2002) (finding that trial judge fundamentally erred in failing
to conduct a proper inquiry regarding juvenile's waiver of counsel prior to
-9-

accepting plea); J.M.B. v. State, 800 So. 2d 317, 319 (Fla. 2d DCA 2001)
(recognizing "that the juvenile court judge must contend with an unusually heavy
docket, and was dealing, in this case, with a juvenile who was no stranger to the
ways of the juvenile justice system," but finding that trial court erred in failing to
renew the offer of counsel at each stage of the proceedings); V.S.J. v. State, 793
So. 2d 104 (Fla. 2d DCA 2001) (finding that although court inquired about the
voluntariness of juvenile's plea, it did not conduct a thorough inquiry concerning
the intelligence of juvenile's waiver of counsel); G.E.F. v. State, 782 So. 2d 951
(Fla. 2d DCA 2001) (finding that although trial court made an abbreviated inquiry
regarding waiver of counsel, the inquiry failed to satisfy the requirements of rule
8.165).  Considering the apparently low appeal rate of juvenile adjudications and
dispositions, these examples may reveal only a small fraction of a potentially
significant trend in delinquency proceedings as documented by the Commission.4
Additionally, a recent assessment of Florida's juvenile delinquency courts has
produced evidence suggesting that juveniles may be unaware of both their various
4.   See, e.g., Mary Berkheiser, The Fiction of Juvenile Right to Counsel:
Waiver in the Juvenile Courts, 54 Fla. L. Rev. 577, 633 (2002) (discussing a 1996
study of the ABA Juvenile Justice Center finding that the practice of taking appeals
in juvenile proceedings was "lacking in most jurisdictions," as well as noting that
"[n]early one-half of juvenile public defenders and more than three quarters of
appointed lawyers authorized to file appeals reported that they had taken no
appeals in the preceding year").
-10-

rights in the courts and the judge's role in informing a juvenile about his or her
right to counsel.5  The general presumption of a juvenile's limited understanding of
court proceedings has even led public defenders in some counties to adopt an
informal agreement with trial courts in their jurisdictions by which the public
defenders consult with juvenile defendants to ensure that each juvenile's waiver is
knowing and voluntary.6
Although we believe that consultation with an attorney prior to waiving
counsel is an important additional safeguard designed to protect a juvenile's
constitutional right to counsel, we are also mindful of the potential financial impact
of this requirement.  We note that one of the recommendations of the
5.   In April 2003, the Office of Court Improvement, which is part of the
Office of the State Courts Administrator, pursuant to a directive by the Chief
Justice of the Florida Supreme Court, studied and published an assessment on the
juvenile court process that discussed in part juveniles' ability to understand court
proceedings.  See Office of the State Courts Administrator, Florida's Juvenile
Delinquency Court Assessment (2003).  Part of the study utilized interviews with a
small sample of juveniles.  Id. at 37.  Many of the juveniles interviewed, including
those who stated they were aware of the reason why they were in court, exhibited
limited knowledge of the courtroom participants.  Id. at 38.  Moreover, none of the
juveniles interviewed expected the judge to discuss their various rights to counsel
and a trial.  Id.
6.   At oral argument, Ward Metzger, a practicing assistant public defender in
the Fourth Circuit, noted that the courts in his jurisdiction have adopted such an
informal arrangement.  Similarly, Circuit Court Judge Lynn Tepper, appearing at
oral argument on behalf of the Steering Committee, stated that she maintains such
a procedure in her courtroom.
-11-

representation subcommittee that was adopted by the full Commission on the Legal
Needs of Children was to encourage efforts seeking legislative changes that would
"create" a right to a prewaiver consultation and authorize the public defender to
provide the required consultation.  In fact, in its June 2002 Final Report, the
Commission specifically recommended:
5.    Florida law should specifically create a right for children to
consult counsel, short of outright appointment for the duration of the
case, in the following instances:
a.                                                                                    Regarding waiver of counsel or other right or legal
interest in a delinquency proceeding, prior to the
appointment of the Public Defender by a judge, or at any
time thereafter where waiver is sought;
6.   Florida law should specifically authorize the Public Defender to
provide the consultation services outlined in #5 above.  This
recommendation would necessitate the legislature appropriating
additional funds for the Public Defender to adequately provide
consultation services.
These two recommended changes in the law could be made by amending sections
985.203(1) and 27.51, Florida Statutes (2004).
Because of the potential financial impact of the amendment to rule 8.165(a)
regarding consultation with attorneys and our desire to work cooperatively with the
Legislature, we urge the Legislature to consider the Commission’s
recommendations.  We also strongly urge that the voluntary practice that exists in
-12-

many jurisdictions in which consultation with an attorney takes place be continued
and, where possible, expanded in the interim.
We thus decline to adopt at this time the portion of rule 8.165(a) regarding
consultation with an attorney prior to a waiver.  We emphasize that we are not
rejecting this proposed amendment to rule 8.165(a), but are merely deferring its
consideration.  We intend to readdress the adoption of the amendment to rule
8.165(a) at a future time following the conclusion of the legislative session.  We
further take this opportunity to reinforce that it is critical for delinquency judges to
ensure that any waiver of counsel by a child is knowingly and voluntarily given,
especially prior to accepting a plea of guilty or nolo contendere.
However, we unanimously adopt the amendment to rule 8.165(a) requiring a
written waiver, and new rule 8.165(b)(3), which requires that when a child is
entering a plea or being tried for a delinquent act, a written waiver of counsel be
submitted to the court in the presence of a parent, legal custodian, responsible adult
relative, or attorney assigned by the court to assist the child.  As noted earlier,
under this new subdivision, the aforementioned individual must also verify that the
child's decision to waive counsel has been discussed and appears to be knowing
and voluntary.
-13-

We hope, as does the Rules Committee and the Commission on the Legal
Needs of Children, that these additional procedural safeguards will enhance a
juvenile's ability to make a knowing and voluntary waiver of counsel, thereby
preserving and protecting that juvenile's constitutional rights.  We also hope that
the Legislature will consider our request on the issue of consultation with an
attorney before waiver in juvenile delinquency proceedings.
II.  RULE 8.257--GENERAL MAGISTRATES
New rule 8.257, General Magistrates, is created to govern the use of general
magistrates in juvenile dependency proceedings.  In the last regular-cycle
amendment proceedings, the role of general and special masters (now renamed
general and special magistrates) in juvenile proceedings was at issue.  See
Amendments to Florida Rules of Juvenile Procedure, 827 So. 2d 219, 220 (Fla.
2002) ("Amendments").  In Amendments, the Rules Committee proposed an
amendment to rule 8.255, General Provisions for Hearings, that would prohibit
general and special masters from conducting specific dependency
hearings—namely, shelter hearings, contested dependency adjudicatory hearings,
disposition hearings, and contested termination of parental rights adjudicatory
hearings.  The Court determined that in light of the Revision 7/Article V funding
-14-

issues that were being considered by the Court,7 it should not limit the role of
general masters, except to prohibit masters from hearing certain proceedings that
are required by law to be heard by a judge, until the Court could consider the
impact that those funding issues would have on the administration of juvenile
justice:
As we have stated, Florida's children are our greatest resource, and
adequate funding of juvenile judicial proceedings is of paramount
importance:
Florida's oft-repeated pledge that "our children come
first" cannot ring hollow in—of all places—our halls of
justice. Judges, prosecutors, public defenders and others
serving in the juvenile system cannot hope to make a
difference in the life of a single troubled child if they
must contend with staggering caseloads made worse by
the maldistribution of judicial resources.
7.   As explained by the Court in Amendments:
On November 3, 1998, the voters of the State of Florida passed
Revision 7 which amended article V of the Florida Constitution.
Revision 7 made significant changes in the way the Florida courts are
to be funded under article V, section 14 of the Florida Constitution.
The revision clarifies which portions of the judicial system will be the
funding responsibility of the State, and which will be the funding
responsibility of the counties. The Legislature intends for the
amendment to article V, section 14 to be effectuated on or before July
1, 2004. See § 29.003(5), Fla. Stat. (2001).
827 So. 2d at 221 n.1.
-15-

See Amendment to Florida Rule of Juvenile Procedure 8.100(a), 753
So.2d 541, 545 (Fla.1999). We hesitate to take actions that could have
a significant impact on the Florida judicial system's ability to provide
timely and efficient adjudication of juvenile dependency proceedings
without considering the "big picture" of how funding for our judicial
system will be allocated under the Revision 7 implementation.
Therefore, we decline to limit the role of masters in juvenile
proceedings by a rule of procedure until this Court has had time to
consider the impact—practically and financially—that Revision 7 will
have on the administration of juvenile justice.
Amendments, 827 So. 2d at 221.
In Amendments, the Court further noted that "there is no formal procedure in
place for obtaining the parties' consent to refer a dependency or termination of
parental rights matter to a master."  Id. at 222.  For this reason, the Court made the
following referral to the Juvenile Court Rules Committee:
[B]ecause we believe that a formal procedure for obtaining the parties'
consent to referral to a master in dependency and termination of
parental rights proceedings is necessary, and because other rules of
court currently have such a procedure in place, see, e.g., Fla. Fam.
L.R.P. 12.490(b), we refer this matter back to the Committee for
consideration of a rule of juvenile procedure for obtaining the parties'
consent.
Id. at 222.
The Rules Committee patterned new rule 8.257 after Florida Family Law
Rule of Procedure 12.490, General Magistrates.  Subdivision (a) addresses the
appointment of magistrates.  Subdivision (b) addresses consenting to a magistrate,
objecting to a magistrate, and the contents of the order of referral.  Subdivision (c)
-16-

addresses the general powers and duties of a general magistrate.  Subdivision (d)
addresses the proceeding of a hearing before a general magistrate, including
whether electronic reporting or a court reporter is being provided by the court.
Subdivision (e) addresses the content and service of the magistrate's report.
Subdivision (f) addresses the service of exceptions to the magistrate's report.
Finally, subdivision (g) addresses the provision of the record to the court for a
hearing on exceptions.
The Steering Committee expressed concern regarding new rule 8.257
because it felt that there were a number of outstanding issues related to the use of
general magistrates in family court generally that it is still studying.  One such
issue is how to resolve policy considerations involved in the referral of final
proceedings to general magistrates, such as adjudicatory hearings (which, as noted
earlier, was at issue in Amendments).
While we recognize that the Steering Committee may have ongoing
concerns with the use of general magistrates in certain proceedings, we feel that
these concerns should not preclude adoption of this rule because it sets forth
integral procedures of appointing a magistrate, consenting to a magistrate, and
conducting the hearing before a magistrate.  Accordingly, although the role of
-17-

magistrates in juvenile proceedings may need to be reviewed and possibly
amended in the future, we adopt rule 8.257 as proposed at this time.8
III.  CASE PLANS
Rule 8.400, Case Plans, is amended to add new subdivisions (b)(2) and
(b)(3) to clarify the procedure for amending case plans.  In M.W. v. Davis, 756 So.
2d 90, 107 (Fla. 2000), this Court noted the lack of guidance regarding the type of
evidence required to amend a case plan.  The amendment to rule 8.400 provides
that any amendments must be based on competent evidence, and if any party
objects to the amendment of a case plan, the court must conduct a hearing allowing
each party to present evidence and information as permitted by rule 8.340(a),
Disposition Hearings; Information Available to Court.
Subdivision (b)(4) of rule 8.410, Approval of Case Plans, is amended to
clarify what findings a court must make in approving a case plan with a goal of
reunification with the parents.  We further amend subdivision (c), Amendment of
Plan, to refer to "goals for permanency" as opposed to reunification of the child
with the parents.
IV.  RULE AMENDMENTS NECESSARY TO BRING THE RULES INTO
CONFORMANCE WITH THE FLORIDA STATUTES
8.   In light of our adoption of new rule 8.257, we delete rule 8.255(i),
Masters.
-18-

Rule 8.240, Computation and Enlargement of Time, is amended to add new
subdivision (d), Continuances and Extensions of Time, to create a procedure for
filing a motion for continuance, extension, or waiver of time in dependency and
termination of parental rights proceedings.  This amendment conforms the rule to
section 39.013(10), Florida Statutes (2004).
Rule 8.290, Dependency Mediation, is amended to delete the language
"unless waived by all parties and approved by the court," from subdivision (c),
Compliance with Statutory Time Requirements, which currently provides that
"Dependency mediation shall be conducted in compliance with the statutory time
requirements for dependency matters unless waived by all parties and approved by
the court."  This amendment requires dependency mediations to comply with
statutory time requirements.
Subdivision (f)(6) of rule 8.415, Judicial Review of Dependency Cases, is
amended to remove a provision that allows commitment of a child to a licensed
child-placing agency for adoption.  This amendment conforms the rule to section
39.812(1), Florida Statutes (2004).
We amend subdivision (a)(2) of rule 8.500, Petition, to delete "a licensed
child-placing agency" from the list of those who may file a petition to terminate
parental rights, thereby conforming the rule to section 39.802(1), Florida Statutes
-19-

(2004), which was amended in 2001 to remove "licensed child-placing agency"
from the list.  See ch. 2001-03, § 2, at 7, Laws of Fla.
Subdivision (a)(5) of rule 8.505, Process and Service, is amended to require
notice to grandparents of termination of parental rights pending adoption
proceedings as provided by law.  The amendment conforms the rule to section
63.0425(1), Florida Statutes (2004).  We further amend subdivision (c),
Constructive Service, of rule 8.505 to clarify that service is only required for
parties whose identities are known, in conformance with section 39.803(1) and (4),
Florida Statutes (2004).  We further amend subdivision (d), Waiver of Service, of
rule 8.505 to remove the reference to commitment of a child to a licensed child
placing agency.  This amendment conforms the rule to sections 39.811(2) and
39.812(1), Florida Statutes (2004).
We amend subdivision (a)(3) of rule 8.510, Advisory Hearing and Pretrial
Status Conferences, to specify that the court shall enter a consent to the termination
of parental rights petition for the parent who failed to personally appear at the
advisory hearing on the termination of parental rights petition.  The amendment
brings the rule into conformance with section 39.801(3)(a) and (3)(d), Florida
Statutes (2004).  We also amend subdivision (a)(4) of rule 8.510 to clarify the
procedure for entry of admissions or consents to termination of parental rights.
-20-

Subdivision (a)(1) of rule 8.515, Providing Counsel to Parties, is amended to
delete the requirement to offer counsel if the parties have executed voluntary
surrenders to terminate their parental rights.  This amendment conforms the rule to
section 39.013(9), Florida Statutes (2004).
Subdivision (c), Continuing Jurisdiction, of rule 8.535, Post-Disposition
Hearings, is amended to add a sentence stating that the petition for adoption must
be filed in the court that entered the judgment terminating parental rights unless a
motion for a change of venue is granted.  The amendment conforms the rule to
section 39.812(5), Florida Statutes (2004).
V. MISCELLANEOUS RULE CHANGES RE:  JUVENILE DEPENDENCY
Subdivision (g)(2)(B) of rule 8.245, Discovery, is amended to allow the
clerk, court, or any attorney of record to issue subpoenas for taking depositions.
This amendment conforms the rule to Florida Rule of Juvenile Procedure
8.225(a)(2) and Florida Rule of Civil Procedure 1.410(a).
Subdivision (b)(9) of rule 8.305, Shelter Petition, Hearing, and Order,
is amended to clarify that if a shelter hearing is conducted by a judge other than
one assigned to hear dependency cases, a judge assigned to hear dependency cases
must review the child's status within two working days.  As currently written, the
rule refers to the "juvenile court judge," and this language could include a judge
-21-

that hears delinquency cases.  In addition, we amend subdivision (c), Shelter Order,
of rule 8.305 to clarify that findings need to be made only in an order granting
shelter care, pursuant to section 39.402(8)(h), Florida Statutes (2004).
In rule 8.315, Arraignments and Prehearing Conferences, the second
sentence of subdivision (a) is amended to read "If an admission or consent is
entered and no denial is entered by any other parent or legal custodian, the court
shall schedule a disposition hearing to be conducted within 15 days."  If any parent
or legal custodian denies the allegations of the dependency petition, it is a denial of
due process to move to disposition without an adjudicatory hearing.  See Monteiro
v. State, 477 So. 2d 45, 45-46 (Fla. 3d DCA 1985) (finding that where one of the
parents denied the allegations in the dependency petition, the trial court's action in
adjudicating the child dependent without an adjudicatory hearing violated the non-
consenting mother's due process rights under the United States and Florida
Constitutions).
We further amend subdivision (a) of rule 8.315 by striking the language
stating that the court may grant a continuance as provided by law when a denial of
the allegations of a dependency petition is entered at the arraignment.  In proposing
the aforementioned amendment, the committee clarified that this change is
intended to eliminate language regarding continuances throughout the rules in
-22-

favor of having all language regarding continuances contained in rule 8.240,
Computation and Enlargement of Time.
Rule 8.325, Answers and Pleadings, is amended to delete subdivision (d),
Stipulations, which addresses stipulations to the placement of a dependent child.
In amending this rule, it is not our intent to prohibit parties from entering into any
type of stipulation, just stipulations to the placement of a dependent child.
Finally, we amend forms 8.908, Summons, 8.959, Summons for
Dependency Arraignment, 8.960, Shelter Petition, and 8.979, Summons for
Advisory Hearing, to add language regarding the provision of assistance to persons
with disabilities.
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.  Committee notes are included for
explanation and guidance only and are not adopted as an official part of the rules.
The amendments shall become effective immediately.
It is so ordered.
WELLS, QUINCE, CANTERO, and BELL, JJ., concur.
ANSTEAD, J., concurs in part and dissents in part with an opinion.
LEWIS, J., concurs in part and dissents in part with an opinion, in which
ANSTEAD, J., concurs.
-23-

THE FILING OF A MOTION FOR REHEARING SHALL NOT ALTER THE
EFFECTIVE DATE OF THESE AMENDMENTS
ANSTEAD, J., concurring in part and dissenting in part.
While I agree with virtually all of the observations of Justice Lewis in his
separate opinion, I write to separately acknowledge the wisdom and constructive
effort of the majority in deferring consideration of the issue of entitlement to
counsel while seeking assistance from the Legislature in fully implementing and
funding this constitutional imperative.  In its discussion of this issue, the majority
has presented a compelling case for action by both this Court and the Legislature to
insure the integrity and reliability of the waiver process.  There is no question that
all three branches of government should be working together in seeing that
children whose lives may be dramatically and permanently altered by a decision to
waive counsel in juvenile proceedings are afforded access to counsel before
making that critically important decision.  I join the majority in urging the
Legislature to help make this access clear.
The juvenile system stands as our society's commitment to do everything in
its power to rescue and rehabilitate our children before they achieve majority, and
are subject to the severe and unforgiving sanctions of the adult penal system.
Explicit in this juvenile scheme for treating children differently is the recognition
-24-

of the immaturity of the child offender in assessing her culpability; as well as the
hope that with proper correction and guidance the child's future will be saved; and
society will gain as well by restoring the child on a path to becoming a productive
citizen.
The recognition of the immaturity of the child is at the core of this juvenile
scheme, and its importance cannot be discounted in our assessment of the child's
constitutional right to counsel and the child's informed waiver of that right.  As the
majority opinion makes clear, we have consistently recognized that there is a very
real and substantial difference between the capacity of a competent adult to waive
an entitlement to counsel and the capacity of an immature child to make such a
critical decision.  In fact, the majority opinion cites to numerous instances when
this difference has been overlooked, only to cause later and more costly problems
in the system.  Because of this difference in capacity based on the lack of maturity
implicit in the disability of non-age, it is absolutely essential that we broadly
construe the child's constitutional right to counsel to include consultation with
counsel at this critical stage of the proceedings where waiver of counsel is being
considered.  As our experience makes clear, the immaturity of the child may often
include an anxiety and immediate desire to waive any entitlements in order to
obtain the short term (and often short-sighted), goal of just having the matter
-25-

resolved.  In other words, to get it over with.  While that choice may still be made,
it should only be done with full awareness of its consequences, both short term and
long.  That is all that the Commission on the Legal Needs of Children and the
numerous other child advocates participating in these proceedings seek in asking
for assistance from this Court and the Legislature.
LEWIS, J., concurring in part and dissenting in part.
While I concur with a portion of the majority opinion, I write separately to
dissent with regard to the emasculation of the protection which would have been
afforded under rule 8.165 as proposed, which would have permitted a juvenile to
waive counsel only after the child had a meaningful opportunity to confer with an
attorney regarding his or her right to counsel.  In my view, the procedural step
would neither exceed the parameters of the public defender's grant of authority, nor
unduly overburden Florida's public defenders with unworkable responsibilities.
The majority now pays only "lip-service" to protecting children and the
exclamations of concern ring hollow when actions are analyzed.  In my view, the
concerns voiced by the majority do not withstand scrutiny upon examination of the
relevant statutory provisions and the enormous benefit to be gained from the
amendment.
-26-

The proposed amendments to rule 8.165 rejected today were not only
entirely proper, but also necessary to effectuate a meaningful constitutional right to
counsel held by each of Florida's minors.  The majority proclaims the right but
amputates the procedural rule.  Moreover, I agree with Justice Anstead’s
assessment of the vulnerability of children in the state’s juvenile justice system,
and concomitant need to construe their constitutional right to counsel broadly to
include consultation prior to waiving that right.  I cannot, however, join Justice
Anstead in his praise for the majority’s decision and failure to act on this important
issue at this time.
The Rules Committee has clearly identified a troubling problem common in
juvenile delinquency proceedings.  We are told and the majority seems to agree
that far too often, juveniles navigate the procedural waters of Florida's juvenile
judicial system alone, and all too often waive the assistance of counsel prior to
entering pleas without first consulting with an attorney to ensure an appreciation of
the gravity of the charges against them, the scope of potential consequences, the
benefits of proceeding with the advice of counsel, and the potential for impact in
the future.  Indeed, the majority opinion even notes that the general presumption of
a juvenile's limited understanding of court proceedings has already generated
informal arrangements between trial courts and public defenders whereby the
-27-

public defenders as knowledgeable officers of the judicial system consult with
juvenile defendants to ensure that each child's waiver of counsel is knowing and
voluntary.  See Majority op. at 11-12.
Pursuant to the proposed amendments rejected by the Court today, a child
involved in a delinquency proceeding who wishes to waive counsel would have
done so "only after the child has had a meaningful opportunity to confer with
counsel regarding the child's right to counsel, the consequences of waiving
counsel, and any other factors that would assist the child in making the decision to
waive counsel."  Two-Year Cycle Report of the Juvenile Court Rules Committee at
21.   Further, such child would have been required to  submit a written waiver "in
the presence of a parent, legal custodian, responsible adult relative, or attorney who
has conferred with the child . . .                                                       . who shall verify . . . that the child's decision to
waive counsel has been discussed with the child and appears to be knowing and
voluntary."  Id. at 21-22.
Given that far too many children involved in delinquency proceedings
appear before the court unaccompanied by a parent or legal guardian, and even far
fewer with private counsel, the task of consulting with these children regarding the
waiver of counsel apparently, in many instances, would have fallen by default to
public defenders.  This may have also occurred in circumstances in which the
-28-

child's parents actually had the means to obtain private counsel.  Some have
expressed concern that mandating such consultation may contravene the Florida
statutory provision governing the parameters of authority of public defenders,
which specifically prohibits a court from appointing "the public defender to
represent, even on a temporary basis, any person who is not indigent."   § 27.51(2),
Fla. Stat. (2004) (emphasis supplied).  The lack of authority to engage in these
consultations engenders another problemnan asserted lack of funding.  For, if the
consultations would exceed the public defender's authority, the argument goes,
they cannot and should not be funded from state resources.
However, a brief review of the laws governing juvenile proceedings and the
assignment of public defenders reveals that public defenders have indeed had
authority to consult with accused minors as contemplated by the proposed
amended rule, and that a process is in place for assessing any costs and fees
associated with the consultation against the child's nonindigent parents or guardian.
To begin, Chapter 985 of the Florida Statutes governs juvenile delinquency
proceedings, and specifically provides:
(1)   A child is entitled to representation by legal counsel at all
stages of any proceedings under this part.  If the child and the parents
or other legal guardian are indigent and unable to employ counsel for
the child, the court shall appoint counsel pursuant to s. 27.52.
-29-

§ 985.203(1), Fla. Stat. (2004) (emphasis supplied).  Thus, Florida law currently
contemplates that indigent children of indigent parents are required to receive the
assistance of appointed counsel.
However, important for purposes of the instant analysis, Florida law also
provides that indigent children of nonindigent parents are also entitled to appointed
counsel to the extent the nonindigent parents fail to fulfill their statutory
responsibility to provide for their child's defense.  Section 985.203(2) also
provides:
If the parents or legal guardian of an indigent child are not
indigent but refuse to employ counsel, the court shall appoint counsel
pursuant to s. 27.52 to represent the child at the detention hearing and
until counsel is provided.  Costs of representation are hereby imposed
as provided by ss. 27.52 and 938.29. . .
§ 985.203(2), Fla. Stat. (2004).  Pursuant to section 27.52(6):
A nonindigent parent or legal guardian of an applicant who is a
minor . . . shall furnish the minor . . . with the necessary legal services
and costs incident to a delinquency proceeding . . .                                    .  The failure of a
parent or legal guardian to furnish legal services and costs under this
section does not bar the appointment of legal counsel pursuant to
s. 27.40 or s. 27.5303.  When the public defender, a special assistant
public defender appointed pursuant to s. 27.53(2), or a private
attorney is appointed to represent a minor . . . in any proceeding in
circuit court or in a criminal proceeding in any other court, the parents
or the legal guardian shall be liable for payment of the fees, charges,
and costs of the representation even if the person is a minor being
tried as an adult.  Liability for the fees, charges, and costs of the
representation shall be imposed in the form of a lien against the
property of the nonindigent parents or legal guardian of the
-30-

minor . . .                                                                              .  The lien shall be enforceable as provided in s. 27.561 or
s. 938.29.
§ 27.52(6), Fla. Stat. (2004) (emphasis added).
As a close examination of the relevant statutory provisions reveals, Florida
law provides the indigent child, even of nonindigent parents who have not fulfilled
their statutory responsibility of providing for their child's defense, assistance of
appointed counsel from the time of the detention hearing.  The detention hearing is
an appearance before a judge early in any proceeding, and marks an opportunity in
juvenile proceedings for the accused minor to waive counsel.9    Therefore, it is
perfectly proper under the statutory scheme governing juvenile proceedings and
the public defender's office that a public defender consult with the minor regarding
his or her right to counsel, as contemplated by the proposed amended rule.  Costs
for this consultation, as well as costs generated from continued representation of
the child should the nonindigent parent continue to default on his or her
responsibility, can be assessed against the defaulting parent in the form of a lien on
his or her property pursuant to existing law.  With this statutory basis in place, any
9.   Florida Rule of Juvenile Procedure 8.165 currently provides:  "If a waiver
is accepted at any stage of the proceedings, the offer of assistance of counsel shall
be renewed by the court at each subsequent stage of the proceedings at which the
party appears without counsel."  Fla. R. Juv. P. 8.165(b)(4).  The substance of this
subpart is unchanged by the amendments approved today.
-31-

assertion that the proposed amended rule exceeds the public defender's authority,
or imposes an unworkable mandate completely fails.  Assertions that the judicial
system can and should confront the problem of inappropriate waivers of counsel
without implementing the procedural rule to accomplish this goal are hollow words
without accompanying action.  We face a serious problem recognized by the
majority in its reference to the many disturbing cases involving waivers of counsel.
The majority apparently urges and advocates an informal practice of consultation
with counsel with regard to waivers but "side-steps" our responsibility to adopt a
meaningful procedural rule.  I have little confidence in a rule that as now adopted
requires a written waiver but without a provision for consultation.  It may well be a
step forward, but in my view, it truly falls short of protecting Florida's children.
ANSTEAD, J., concurs.
Original Proceeding - Florida Rules of Juvenile Procedure
Deborah A. Schroth, Chair and Jennifer Alani Parker, Former Chair, Juvenile
Court Rules Committee, Tallahassee, Florida, and Gerald F. Glynn of Florida's
Children First!, Inc., Orlando, Florida, on behalf of Juvenile Court Rules
Committee; and John F. Harkness, Jr., Executive Director, The Florida Bar,
Tallahassee, Florida
for Petitioner
-32-

Honorable Lynn Tepper, Circuit Judge, Sixth Judicial Circuit, Dade City, Florida
on behalf of The Steering Committee on Children and Families; Ward L. Metzger,
Appellate Coordinator, Office of the Public Defender, Fourth Judicial Circuit,
Jacksonville, Florida on behalf of Nancy A. Daniels, Public Defender, Second
Judicial Circuit and The Florida Public Defender Association;  Ryan Thomas
Truskoski, Pro se, Orlando, Florida; and Rosemary N. Palmer, Pro se, Tallahassee,
Florida,
Interested Parties with comments
-33-

APPENDIX
RULE 8.165.                                                                              PROVIDING COUNSEL TO PARTIES
(a)                                                                                      Duty of the Court.  The court shall advise the child of the child’s
                                                                                         right to counsel.  The court shall appoint counsel as provided by law unless waived
                                                                                         by the child at each stage of the proceeding.  This waiver shall be in writing if
                                                                                         made at the time of a plea of guilty or no contest or at the adjudicatory hearing.
(b)                                                                                      Waiver of Counsel.
(1)                                                                                      The failure of a child to request appointment of counsel at a
particular stage in the proceedings or the child’s announced intention to plead
guilty shall not, in itself, constitute a waiver of counsel at any subsequent stage of
the proceedings.
(2)                                                                                      A child shall not be deemed to have waived the assistance of
counsel until the entire process of offering counsel has been completed and a
thorough inquiry into the child’s comprehension of that offer and the capacity to
make that choice intelligently and understandingly has been made.
(3)                                                                                      If the child is entering a plea to or being tried on an allegation
of committing a delinquent act, the written waiver shall also be submitted to the
court in the presence of a parent, legal custodian, responsible adult relative, or
attorney assigned by the court to assist the child, who shall verify on the written
waiver that the child’s decision to waive counsel has been discussed with the child
and appears to be knowing and voluntary.
(34)   No waiver shall be accepted whereif it appears that the party is
unable to make an intelligent and understanding choice because of mental
condition, age, education, experience, the nature or complexity of the case, or other
factors.
(45)   If a waiver is accepted at any stage of the proceedings, the offer
of assistance of counsel shall be renewed by the court at each subsequent stage of
the proceedings at which the party appears without counsel.
-34-

RULE 8.203.                                                                          APPLICATION OF UNIFORM CHILD CUSTODY
JURISDICTION AND ENFORCEMENT ACT
Any pleading filed commencing proceedings as set forth in rule 8.201 shall
be accompanied by an affidavit, to the extent of affiant’s personal knowledge,
under the Uniform Child Custody Jurisdiction and Enforcement Act. Each party
has a continuing duty to inform the court of any custody proceeding in this or any
other state of which information is obtained during the proceeding.
-35-

RULE 8.240.                                                                              COMPUTATION, CONTINUANCE, EXTENSION, AND
ENLARGEMENT OF TIME
(a)                                                                                      Computation.  In computing any period of time prescribed or
allowed by these rules, except rules 8.300 and 8.305, by order of court, or by any
applicable statute, the day of the act or event from which the designated period of
time begins to run is not to be included. The last day of the period so computed
shall be counted, unless it is a Saturday, a Sunday, or a legal holiday, in which
event the period shall run until the end of the next day which is neither a Saturday,
a Sunday, nor a legal holiday. When the period of time prescribed or allowed shall
be less than 7 days, intermediate Saturdays, Sundays, and legal holidays shall be
excluded from the computation.
(b)                                                                                      Enlargement of Time.  When by these rules, or by a notice given
thereunder them, or by order of court an act is required or allowed to be done at or
within a specified time, the court for good cause shown, and within the limits
established by law, and subject to the provisions of subdivision (d) of this rule,
may, at any time, in its discretion (1) with or without notice, order the period
enlarged if a request therefor is made before the expiration of the period originally
prescribed or as extended by a previous order, or (2) upon motion made and notice
after the expiration of the specified period permit the act to be done wherewhen the
failure to act was the result of excusable neglect;. but itThe court may not, except
as provided by law or elsewhere in these rules, extend the time for making a
motion for new trial, a motion for rehearing, or vacation of judgment, or for taking
an appeal. This rule shall not be construed to apply to shelter hearings.
(c)                                                                                      Time for Service.
(1)                                                                                      Motions and Notice of Hearing.  A copy of any written
motion whichthat may not be heard ex parte and a copy of the notice of the hearing
thereof shall be served a reasonable time before the time specified for the hearing.
(2)                                                                                      Additional Time After Service by Mail.   Whenever a party
has the right or is required to do some act or take some proceedings within a
prescribed period after the service of notice or other paper is served by mail, 5 days
shall be added to the prescribed period.
(d)                                                                                      Continuances and Extensions of Time.
-36-

(1)                                                                                       A motion for continuance, extension, or waiver of the time
standards provided by law and found in this rule shall be in writing and signed by
the requesting party. On a showing of good cause, the court shall allow a motion
for continuance or extension to be made ore tenus at any time during the
proceedings.
(2)                                                                                       A motion for continuance, extension, or waiver of the time
standards provided by law shall not be made in advance of the particular
circumstance or need that would warrant delay of the proceedings.
(3)                                                                                       A motion for continuance, extension, or waiver of the time
standards provided by law shall state all of the facts that the movant contends
entitle the movant to a continuance, extension, or waiver of time including:
(A)   the task that must be completed by the movant to
preserve the rights of a party or the best interests of the child who is the subject of
the proceedings;
(B)   the minimum number of days absolutely necessary to
complete this task; and
(C)   the total number of days the proceedings have been
continued at the request of any party within any 12-month period.
(4)                                                                                       Proceedings may not be continued or extended for more than a
total of 60 days for all parties within any 12-month period.  A continuance or
extension of time standards beyond 60 days in any 12-month period may be
granted only on a finding by the court of extraordinary circumstances and that the
continuance or extension of time standards is necessary to preserve the
constitutional rights of a party or that there is substantial evidence demonstrating
that the child’s best interests will be affirmatively harmed without the granting of a
continuance or extension of time.
-37-

RULE 8.245.                                                                               DISCOVERY
(a)                                                                                       Scope of Discovery. Unless otherwise limited by the court in
accordance with these rules, the scope of discovery is as follows:
(1)                                                                                       In General. Parties may obtain discovery regarding any matter,
not privileged, that is relevant to the subject matter of the pending action, whether
it relates to the claim or defense of the party seeking discovery or the claim or
defense of any other party, including the existence, description, nature, custody,
condition, and location of any books, documents, or other tangible things and the
identity and location of persons having knowledge of any discoverable matter. It is
not ground for objection that the information sought will be inadmissible at the
hearing if the information sought appears reasonably calculated to lead to the
discovery of admissible evidence.
(2)                                                                                       Claims of Privilege or Protection of Trial Preparation
Materials. When a party withholds information otherwise discoverable under these
rules by claiming that it is privileged or subject to protection as trial preparation
material, the party shall make the claim expressly and describe the nature of the
document, communications, or things not produced or disclosed in a manner that,
without revealing information itself privileged or protected, will allow other parties
to assess the applicability of the privilege or protection.
(b)                                                                                       Required Disclosure.
(1)                                                                                       At any time after the filing of a shelter petition, ora petition
alleging a child to be a dependent child, or a petition for termination of parental
rights, on written demand of any party, the party to whom the demand is directed
shall disclose and permit inspecting, copying, testing, or photographing matters
material to the cause. If the child had no living parent with intact parental rights at
the time the dependency allegations arose, then the person who was serving as the
legal custodian of the child at that time is entitled to obtain discovery during the
pendency of a shelter or dependency petition.
(2)                                                                                       The following information shall be disclosed by any party upon
demand:
-38-

(A)   The names and addresses of all persons known to have
information relevant to the proof or defense of the petition’s allegations.
(B)   The statement of any person furnished in compliance
with the preceding paragraph. The term “statement” as used herein means a written
statement made by saidthis person and signed or otherwise adopted or approved by
the person, or a stenographic, mechanical, electricalelectronic, or other recording,
or a transcript thereofof it, or whichthat is a substantially verbatim recital of an oral
statement made by saidthis person to an officer or agent of the state and recorded
contemporaneously with the making of suchthe oral statement. The court may pro-
hibit any party from introducing in evidence the material not disclosed, so as to
secure and maintain fairness in the just determination of the cause.
(C)   Any written or recorded statement and the substance of
any oral statement made by the demanding party or a person alleged to be involved
in the same transaction. If the number of oral statements made to any person are so
numerous that, as a practical matter, it would be impossible to list the substance of
all the oral statements, then the party to whom the demand is directed will disclose
that person’s identity and the fact that this person has knowledge of numerous
statements. This disclosure will allow the demanding party to depose that person.
(D)   Tangible papers or objects belonging to the demanding
party whichthat are to be used at the adjudicatory hearing.
(E)    Reports or statements of experts, including results of
physical or mental examinations and of scientific tests, experiments, or
comparisons.
(3)                                                                                         The disclosures required by subdivision (a) of this rule shall be
                                                                                            made within 10 days from the receipt of the demand thereforfor them. Disclosure
                                                                                            may be made by allowing the requesting party to review the files of the party from
                                                                                            whom discovery is requested after redaction of nondiscoverable information.
(c)                                                                                         Limitations on Disclosure.
(1)                                                                                         UpoOn application, the court may deny or partially restrict
disclosure authorized by this rule if it finds there is a substantial risk to any person
of physical harm, intimidation, bribery, economic reprisals, or unnecessary
-39-

annoyance or embarrassment resulting from suchthe disclosure, whichthat out-
weighs any usefulness of the disclosure to the party requesting it.
(2)                                                                                       Disclosure shall not be required of legal research or of records,
correspondence, or memoranda, to the extent that they contain the opinion,
theories, or conclusions of the parties’ attorneys or members of their legal staff.
(d)                                                                                       Production of Documents and Things for Inspection and Other
Purposes.
(1)                                                                                       Request; Scope. Any party may request any other party
(A)   to produce and permit the party making the request, or
someone acting on the requesting party’s behalf, to inspect and copy any
designated documents, including writings, drawings, graphs, charts, photographs,
phono-records, and other data compilations from which information can be ob-
tained, translated, if necessary, by the party to whom the request is directed
through detection devices into reasonably usable form, that constitute or contain
matters within the scope of subdivision (a) and that are in the possession, custody,
or control of the party to whom the request is directed; and
(B)   to inspect and copy, test, or sample any tangible things
that constitute or contain matters within the scope of subdivision (a) and that are in
the possession, custody, or control of the party to whom the request is directed.
(2)                                                                                       Procedure. Without leave of court the request may be served
on the petitioner after commencement of proceedings and on any other party with
or after service of the summons and initial petition on that party. The request shall
set forth the items to be inspected, either by individual item or category, and
describe each item and category with reasonable particularity. The request shall
specify a reasonable time, place, and manner of making the inspection or
performing the related acts. The party to whom the request is directed shall serve a
written response within 15 days after service of the request, except that a
respondent may serve a response within 30 days after service of the process and
initial pleading on that respondent. The court may allow a shorter or longer time.
For each item or category the response shall state that inspection and related
activities will be permitted as requested unless the request is objected to, in which
event the reasons for the objection shall be stated. If an objection is made to part of
-40-

an item or category, the part shall be specified. When producing documents, the
producing party shall either produce them as they are kept in the usual course of
business or shall identify them to correspond with the categories in the request. The
party submitting the request may move for an order under subdivision (k)
concerning any objection, failure to respond to the request, or any part of it, or
failure to permit inspection as requested.
(3)                                                                                      Persons Not Parties. This rule does not preclude an
                                                                                         independent action against a person not a party for production of documents and
things.
(4)                                                                                      Filing of Documents. Unless required by the court, a party
                                                                                         shall not file any of the documents or things produced with the response. Docu-
                                                                                         ments or things may be filed when they should be considered by the court in
determining a matter pending before the court.
(e)                                                                                      Production of Documents and Th

Download sc04-97.pdf