text:
    AMENDMENTS TO FLORIDA SUPREME COURT APPROVED FAMILY LAW FORMS—SEXUAL VIOLENCE FORMS.
    No. SC04-1039.
    Supreme Court of Florida.
    July 8, 2004.
   PER CURIAM.

During the 2004 legislative session, the Legislature made several amendments to the Florida Statutes, which became effective on July 1, 2004, and which significantly affect the Florida Supreme Court Approved Family Law Forms. First, the Legislature amended section 784.047, Florida Statutes (2003), to make the violation of an injunction for protection against sexual violence a first-degree misdemeanor punishable as provided in sections 775.082 or 775.083, Florida Statutes (2003). See ch.2004-17, § 2, Laws of Fla. Second, the Legislature amended section 784.046, Florida Statutes (2003), to allow a petitioner for an injunction for protection against sexual violence to furnish an address to the court in a separate confidential filing pursuant to section 119.07(3)(s), Florida Statutes (2003), and to allow a petitioner to include a law enforcement agency incident report number in the petition as opposed to attaching the report to the petition. See ch.2004-17, § 1, Laws of Fla. Lastly, the Legislature amended section 784.046 to permit a law enforcement officer to make an arrest without a warrant when there is probable cause to believe that a person has committed a criminal act according to sections 741.31 or 784.047, Florida Statutes (2003), which violates an injunction for protection entered pursuant to sections 741.30 or 784.046, Florida Statutes (2003). See ch.2004-17, § 1, Laws of Fla.

Pursuant to the procedures approved in Amendments to the Florida Family Law Rules of Procedure & Family Law Forms, 810 So.2d 1, 14 (Fla.2000), this Court has internally reviewed the Florida Supreme Court Approved Family Law Forms and determined that amendments to existing domestic, repeat, dating, and sexual violence forms are necessary as a result of the legislation. Accordingly, we hereby adopt various amendments to the following Florida Supreme Court Approved Family Law Forms: 12.980(g), Supplemental Affidavit in Support of Petition for Injunction for Protection Against Domestic Violence, Repeat Violence, Dating Violence, or Sexual Violence; 12.980(h), Petitioner’s Request for Confidential Filing of Address; 12.980(i), Motion for Extension of Injunction for Protection Against Domestic Violence, Repeat Violence, Dating Violence, or Sexual Violence; 12.980(j) Motion for Modification of Injunction for Protection Against Domestic Violence, Repeat Violence, Dating Violence, or Sexual Violence; 12.980(q) Petition for Injunction for Protection Against Sexual Violence; 12.980(r), Temporary Injunction for Protection Against Sexual Violence; and 12.980(s), Final Judgment of Injunction for Protection Against Sexual Violence (After Notice).

The forms are adopted as set forth in the appendix to this opinion, fully engrossed, effective for immediate use. However, due to the number of amendments to existing forms, we direct that these forms be published in The Florida Bar News so that any interested person may file comments with this Court by September 15, 2004. By adoption of these forms, we express no opinion as to their correctness or applicability, or on the substance of the new legislation. This opinion and the forms discussed herein may be accessed and downloaded from this Court’s website at www.flcourts.org.

It is so ordered.

PARIENTE, C.J., with WELLS, ANSTEAD, LEWIS, QUINCE, CANTERO, and BELL, JJ., concur.

APPENDIX

INSTRUCTIONS FOR FLORIDA SUPREME COURT APPROVED FAMILY LAW FORM 12.980(g),

SUPPLEMENTAL AFFIDAVIT IN SUPPORT OF PETITION FOR INJUNCTION FOR PROTECTION AGAINST DOMESTIC VIOLENCE, REPEAT VIOLENCE, DATING VIOLENCE, OR SEXUAL VIOLENCE

When should this form be used?

You may use this form if your Petition for Injunction for Protection Against Domestic Violence, Florida Supreme Court Approved Family Law Form 12.980(a), or your Petition for Injunction for Protection Against Repeat Violence, ^ □ Florida Supreme Court Approved Family Law Form 12.980(f), or your Petition for Injunction for Protection Against Dating Violence, % □ Florida Supreme Court Approved Family Law Form 12.980(n), or your Petition for Injunction for Protection Against Sexual Violence, % □ Florida Supreme Court Approved Family Law Form 12.890(q), was denied by the judge. You should use this supplemental affidavit to add facts or clarify the facts you wrote in your original petition. For a domestic violence case, you should include FACTS that establish that you have been a victim of violence or are in imminent danger of becoming a victim of violence from the respondent. For a repeat violence case, you should include FACTS that establish that you or a member of your immediate family have or has been a victim of at least two prior incidents of violence, that one of those incidents occurred. within the last six months and that there is an immediate and present risk of danger to you or a member of your immediate family. For a dating violence case, you should include FACTS that establish that you have been a victim of violence or are in imminent danger of becoming a victim of violence from the respondent who is an individual with whom you have or have had a continuing and significant relationship of a romantic or intimate nature, to be determined by consideration of such facts as the dating relationship existed within the past six months, the nature of the relationship included an expectation of affection or sexual involvement and the frequency and type of interaction between you and the individual included involvement over time and on a continued basis. Dating violence does not include violence in a casual acquaintanceship or violence between individuals who only have engaged in ordinary fraternization in a business or social context. For a sexual violence case, you should include FACTS that establish that you are a victim of sexual violence or the parent of a minor child living at home who is a victim of sexual violence, that you have reported the sexual violence to law enforcement and are cooperating in the criminal proceeding if there is one. If the respondent was in state prison for sexual violence against you or the minor child and respondent is out of prison or is getting out within 90 days of the petition, include that information in your supplemental affidavit, along with a copy of the notice of inmate release.

This form should be typed or printed in black ink. After completing this form, you should sign the form before a notary public or the clerk of the circuit court. You should then file the original with the clerk in the county where the petition was filed and keep a copy for your records.

What should I do next?

After you complete this supplemental affidavit, the clerk will attach it to your original petition and all the documents will be submitted to the judge as your “Amended Petition.”

INSTRUCTIONS FOR FLORIDA SUPREME COURT APPROVED FAMILY LAW FORM 12.980(h),

PETITIONER’S REQUEST FOR CONFIDENTIAL FILING OF ADDRESS

When should this form be used?

If you are the petitioner seeking an injunction for protection against domestic violence or sexual violence and you fear that disclosing your address to the respondent would put you in danger, you should complete this form and file it with the clerk of the circuit court.

You cannot use this form in a petition for injunction for protection against repeat or dating violence action.

This form should be typed or printed in black ink. After completing this form, you should file the original with the clerk of the circuit court in the county where your petition was filed and keep a copy for your records.

INSTRUCTIONS FOR FLORIDA SUPREME COURT APPROVED FAMILY LAW FORM 12.980®,

MOTION FOR EXTENSION OF INJUNCTION FOR PROTECTION AGAINST DOMESTIC VIOLENCE, REPEAT VIOLENCE, DATING VIOLENCE, OR SEXUAL VIOLENCE

When should this form be used?

If you are the petitioner on a previously entered injunction for protection against domestic violence, repeat violence, dating violence, or sexual violence and that injunction will soon expire, you may use this form to request that the court extend the injunction. You must file a motion for extension BEFORE the previously entered order expires.

This form should be typed or printed in black ink. After completing this form, you should sign it before a notary public or the clerk of the circuit court. You should then file the original with the clerk in the county where the petition was filed and keep a copy for your records. If you have any questions or need assistance completing this form, the clerk or family law intake staff will help you.

What should I do next?

For your case to proceed, you will need to set a hearing on your motion. You must properly notify the other party of the motion and hearing. You should check with the clerk of court for information on the local procedure for scheduling a hearing. When you know the date and time of your hearing, you should file Notice of Hearing (General), Florida Supreme Court Approved Family Law Form 12.923, or other appropriate notice of hearing form. You will need to serve a copy of your motion and Notice of Hearing to the other party. Service of your motion must be in a manner that is reasonably calculated to apprise the other party of your motion and the hearing. *Please note that if notice is mailed, the court in certain circumstances may not consider mailing to be adequate notice. If you want to be sure, you should consider using certified mail, return receipt requested, or having the motion personally served. This is a technical area of the law; if you have any questions about it, you should consult a lawyer. For more information on personal service, see the instructions for Summons: Personal Service on an Individual, □ Florida Family Law Rules of Procedure Form 12.910(a).

You will need to appear at the hearing on your motion. After the hearing, if the judge grants your motion, he or she will prepare an Order Extending Injunction for Protection Against Domestic Violence, Repeat Violence, Dating Violence, or Sexual Violence, % □ Florida Supreme Court Approved Family Law Form 12.980(m). After the judge signs the order, the clerk will provide you with the necessary copies. Make sure that you keep a certified copy of the previously entered injunction AND a certified copy of the order extending that injunction with you at all times.

Where can I look for more information?

Before proceeding, you should read “General Information for Self-Represented Litigants” found at the beginning of these forms. The words that are in “bold underline” are defined in that section. The clerk of the circuit court or family law intake staff will help you complete any necessary domestic, repeat, dating, or sexual violence forms and will answer any question that you may have. Special notes ...

With this form you may also file the following:

• Petitioner’s Request for Confidential Filing of Address, %,□ Florida Supreme Court Approved Family Law Form 12.980(h), if your petition is for an injunction for protection against domestic violence or sexual violence and you wish to keep your address confidential. When completing this form, you should make sure that your reasons for requesting that the injunction be extended are stated clearly and that you include all relevant facts.

INSTRUCTIONS FOR FLORIDA SUPREME COURT APPROVED FAMILY LAW FORM 12.9800),

MOTION FOR MODIFICATION OF INJUNCTION FOR PROTECTION AGAINST DOMESTIC VIOLENCE, REPEAT VIOLENCE, DATING VIOLENCE, OR SEXUAL VIOLENCE

When should this form be used?

This form may be used if you are a party to a previously entered injunction for protection against domestic violence, repeat violence, dating violence, or sexual violence and you want the court to modify the terms of the injunction. If you use this form, you are called the moving party. This form should be typed or printed in black ink. After completing this form, you should sign the form before a notary public or the clerk of the circuit court. You should then file the original with the clerk in the county where the original petition was filed and keep a copy for your records. You must file a motion for modification before the previously entered order expires. If you have any questions or need assistance completing this form, the clerk or family law intake staff will help you.

What should I do next?

For your case to proceed, you will need to set a hearing on your motion. You must properly notify the other party of the motion and hearing. You should check with the clerk of court for information on the local procedure for scheduling a hearing. When you know the date and time of your hearing, you should file Notice of Hearing (General), Florida Supreme Court Approved Family Law Form 12.923, or other appropriate notice of hearing form. You will need to serve a copy of your motion and Notice of Hearing to the other party. Service of your motion must be in a manner that is reasonably calculated to apprise the other party of your motion and the hearing. *Please note that if notice is mailed, the court in certain circumstances may not consider mailing to be adequate notice. If you want to be sure, you should consider using certified mail, return receipt requested, or having the motion personally served. If you are not represented by an attorney in this action, you must file proof that the other party personally received notice of your motion. This is a technical area of the law; if you have any questions about it, you should consult a lawyer. For more information on personal service, see the instructions for Summons: Personal Service on an Individual, % □ Florida Family Law Rules of Procedure Form 12.910(a).

You will need to appear at a hearing on your motion for modification of injunction. After the hearing, if the judge grants your motion, he or she will prepare a new injunction for protection that contains the modifications. After the judge signs the new injunction, the clerk will provide you with the necessary copies. Make sure that you keep a certified copy of the new injunction with you at all times!

Where can I look for more information?

Before proceeding, you should read “General Information for Self-Represented Litigants” found at the beginning of these forms. The words that are in “bold underline ” are defined in that section. The clerk of the circuit court or family law intake staff will help you complete any necessary domestic, repeat, dating, or sexual violence forms and will answer any question that you may have.

Special notes ...

If the injunction you are seeking to modify is for domestic violence and you want the court to modify alimony, custody of a minor child(ren), or child support, you must establish that there has been a change in circumstance(s), as required by chapter 61, Florida Statutes, or chapter 741, Florida Statutes, as applicable, that requires this (these) modification(s). Be sure that you make these change(s) clear in your motion.

With this form you may also file the following:

• Petitioner’s Request for Confidential Filing of Address, □ Florida Supreme Court Approved Family Law Form 12.980(h), if your petition is for an injunction for protection against domestic violence or sexual violence and you wish to keep your address confidential.
• Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) Affidavit, □ Florida Supreme Court Approved Family Law Form 12.902(d), must be completed and attached if the modification(s) you are seeking involves temporary custody of any minor children).
• Family Law Financial Affidavit, % □ Florida Family Law Rules of Procedure Form 12.902(b) or (c), must be completed and attached if the modification(s) you are seeking involves temporary alimony or temporary child support.
• When completing this form, you should make sure that your reasons for requesting that the injunction be modified are stated clearly and that you include all relevant facts.

INSTRUCTIONS FOR FLORIDA SUPREME COURT APPROVED FAMILY LAW FORM 12.980(q),

PETITION FOR INJUNCTION FOR PROTECTION AGAINST SEXUAL VIOLENCE

When should this form be used?

If you are a victim of sexual violence or the parent or legal guardian of a minor child who is living at home and is a victim of sexual violence, you can use this form to ask the court for a protective order prohibiting sexual violence. Sexual violence means any one incident of:

• sexual battery, as defined in chapter 794, Florida Statutes;
• a lewd or lascivious act, as defined in chapter 800, Florida Statutes, committed upon or in the presence of a person younger than 16 years of age;
• luring or enticing a child, as described in chapter 787, Florida Statutes;
• sexual performance by a child, as described in chapter 827, Florida Statutes; or
• any other forcible felony wherein a sexual act is committed or attempted

In order to get an injunction you must have reported the sexual violence to a law enforcement agency and be cooperating in the criminal proceeding if there is one. It does not matter whether criminal charges based on the sexual violence have been filed, reduced, or dismissed by the state attorney’s office. You may also seek an injunction for protection against sexual violence if the respondent was sent to prison for committing one of the sexual violence crimes listed above against you or your minor child living at home and respondent is out of prison or is getting our of prison within 90 days of your petition. Attach the notice of inmate release to your petition.

Because you are making a request to the court, you are called the petitioner. The person whom you are asking the court to protect you from is called the respondent. If you are seeking an injunction for protection against sexual violence on behalf of a minor child who is living at home, the parent or legal guardian must have been an eyewitness to, or have direct physical evidence or affidavits from eyewitnesses of, the specific facts and circumstances that form the basis of the petition. If you are under the age of eighteen and have never been married or had the disabilities of nonage removed by a court, one of your parents or your legal guardian must sign this petition on your behalf.

If the respondent is your spouse, former spouse, related to you by blood or marriage, living with you now or has lived with you in the past (if you are or were living as a family), or is the other parent of your child(ren) whether or not you have ever been married or ever lived together, you should use Petition for Injunction for Protection Against Domestic Violence, Florida Supreme Court Approved Family Law Form 12.980(a), rather than this form.

This form should be typed or printed in black ink. You should complete this form (giving as much detail as possible) and sign it the presence of a notary or in front of the clerk of the circuit court in the county were you live. The clerk will take your completed petition to a judge. You should keep a copy for your records. If have any questions or need assistance completing this form, the clerk or family law intake staff will help you.

What should I do if the judge grants my petition?

If the facts contained in your petition convince the judge that an immediate and present danger of violence exists, the judge will sign a Temporary Injunction for Protection Against Sexual Violence, Florida Supreme Court Approved Family Law Form 12.980(r). A temporary injunction is issued without notice to the respondent. The clerk will give your petition, the temporary injunction, and any other papers filed with your petition to the sheriff or other law enforcement officer for personal service on the respondent. The temporary injunction will take effect immediately after the respondent is served with a copy of it. It lasts until a full hearing can be held or for a period of 15 days, whichever comes first, unless the respondent is incarcerated, and in such instance the temporary injunction is effective for 15 days following the date the respondent is released from incarceration. The court may extend the temporary injunction beyond 15 days for a good reason, which may include failure to obtain service on the respondent.

The temporary injunction is issued “ex parte.” This means that the judge has considered only the Information presented by one side — YOU. Section I of the temporary injunction gives a date that you should appear in court for a hearing. You will be expected to testify about the facts in your petition. The respondent will be given the opportunity to testify at this hearing, also. At the hearing, the judge will decide whether to issue a Final Judgment of Injunction for Protection Against Sexual Violence (After Notice), Florida Supreme Court Approved Family Law Form 12.980(s), which will remain in effect for a specific time period or until modified or dissolved by the court. If you and/or the respondent do not appear, the temporary injunction may be continued in force, extended, or dismissed, and/or additional orders may be granted, including the imposition of court costs.

If the judge signs a temporary or final injunction, the clerk will provide you with the necessary copies. Make sure that you keep one certified copy of the injunction with you at all times!

What can I do if the judge denies my petition?

If your petition is denied on the grounds that it appears to the court that no immediate and present danger of sexual violence exists, the court will set a full hearing on your petition. The respondent will be notified by personal service of your petition and the hearing. If your petition is denied, you may: amend your petition by filing a Supplemental Affidavit in Support of Petition for Injunction for Protection, %>□ Florida Supreme Court Approved Family Law Form 12.980(g); attend the hearing and present facts that support your petition; and/or dismiss your petition.

Where can I look for more information?

Before proceeding, you should read “General Information for Self-Represented Litigants” found at the beginning of these forms. The words that are in “bold underline” are defined in that section. The clerk of the circuit court or family law intake staff will provide you with necessary forms. For further information, see section 784.046, Florida Statutes.

Special Notes ...

If you fear that disclosing your address to the respondent would put you in danger, you should complete Petitioner’s Request for Confidential Filing of Address, ^ □ Florida Supreme Court Approved Family Law Form 12.980(h), and file it with the clerk of the circuit court and write “confidential” in the space provided for your address on the petition.

SECTION I. PETITIONER (This section is about you. It must be completed. However, if you fear that disclosing your address to the respondent would put you in danger, you should complete and file Petitioner’s Request for Confidential Filing of Address, Florida Supreme Court Approved Family Law Form 12.980(h), and write “confidential” in the space provided on this form for your address.) 1.Petitioner currently lives at: {address, city, state, zip code} - Date of Birth of Petitioner: - [/ if applies] _ Petitioner seeks an injunction for protection on behalf of a minor child. Petitioner is the parent or legal guardian of {full legal name} _ _, a minor child who is living at home. 2.Petitioner’s attorney’s name, address, and telephone number is: _ (If you do not have an attorney, write “none.”) SECTION II. RESPONDENT (This section is about the person you want to be protected from. It must be completed.) 1. Respondent currently lives at: {address, city, state, and zip code} _ Respondent’s Driver’s License number is: {if known} _ 2. Respondent’s last known place of employment: _ Employment address: _ Working hours: - 3. Physical description of Respondent: Race: _ Sex: Male_ Female_ Date of Birth: Height: _ Weight: _ Eye Color: _ Hair Color: Distinguishing marks and/or scars: _ Vehicle: (make/model) _Color: _Tag Number: _ 4. Other names Respondent goes by (aliases or nicknames): _ 5. Respondent’s attorney’s name, address, and telephone number is: - (If you do not know whether Respondent has an attorney, write “unknown.” If Respondent does not have an attorney, write “none.”) 6.If Respondent is a minor, the address of Respondent’s parent or legal guardian is: SECTION III. CASE HISTORY AND REASON FOR SEEKING PETITION (This section must be completed.) 1. Petitioner has suffered sexual violence as shown by the fact that the Respondent has: {describe the facts of violence} - □ Check here if you are attaching additional pages to continue these facts.

[/ all that apply] _ a. Petitioner reported the sexual violence to law enforcement and is cooperating in any criminal proceeding. The incident report number by law enforcement is:_ {If there is a criminal case, include case number, if known}_ __ b. Respondent was sent to prison for committing sexual violence against Petitioner or Petitioner’s minor child living at home and Respondent is out of prison or is getting out of prison within 90 days. The notice of inmate release is attached. 2.Has Petitioner ever received or tried to get an injunction for protection against domestic violence, dating violence, repeat violence, or sexual violence against Respondent in this or any other court? ( ) Yes ( ) No If yes, what happened in that case? {include case number, if known} 3.Has Respondent ever received or tried to get an injunction for protection against domestic violence, dating violence, repeat violence, or sexual violence against Petitioner in this or any other court? ( )Yes( ) No If yes, what happened in that case? {include case number, if known} 4.Describe any other court case that is either going on now or that happened in the past between Petitioner and Respondent {include case number, if known}: _ 5.Additional Information [/ all that apply] _ a. Respondent owns, has, and/or is known to have guns or other weapons. Describe weapon(s): __ b. This or prior acts of violence have been previously reported to: {person or agency} SECTION IV. INJUNCTION (This section must be completed.) 1. Petitioner asks the Court to enter an injunction prohibiting Respondent from committing any acts of violence against Petitioner and: a. prohibiting Respondent from going to or within 500 feet of any place Petitioner lives; b. prohibiting Respondent from going to or within 500 feet of Petitioner’s place(s) of employment or the school that Petitioner attends; the address of Petitioner’s place(s) of employment and/or school is: _ c. prohibiting Respondent from contacting Petitioner by telephone, mail, by e-mail, in writing, through another person, or in any other manner; d. ordering Respondent not to use or possess any guns or firearms; [/ all that apply] _ e. prohibiting Respondent from going to or within 500 feet of the following place(s) Petitioner or Petitioner’s immediate family must go to often: _ _. f. prohibiting Respondent from knowingly and intentionally going to or within 100 feet of Petitioner’s motor vehicle; and any other terms the Court deems necessary for the safety of Petitioner and Petitioner’s immediate family.

FINAL JUDGMENT OF INJUNCTION FOR PROTECTION AGAINST SEXUAL VIOLENCE (AFTER NOTICE)

The Petition for Injunction for Protection Against Sexual Violence under section 784.046, Florida Statutes, and other papers filed in this Court have been reviewed. The Court has jurisdiction of the parties and the subject matter. The term “Petitioner” as used in this injunction includes the person on whose behalf this injunction is entered.

It is intended that this protection order meet the requirements of 18 U.S.C. § 2265 and therefore intended that it be accorded full faith and credit by the court of another state or Indian tribe and enforced as if it were the order of the enforcing state or of the Indian tribe.

SECTION I. HEARING

This cause came before the Court for a hearing to determine whether an Injunction for Protection Against Sexual Violence in this case should be ( ) issued ( ) modified ( ) extended.

The hearing was attended by ( ) Petitioner ( ) Respondent ( ) Petitioner’s Counsel ( ) Respondent’s Counsel

SECTION II. FINDINGS

On {date}_, a notice of this hearing was served on Respondent together with a copy of Petitioner’s petition to this Court and the temporary injunction, if issued. Service was within the time required by Florida law, and Respondent was afforded an opportunity to be heard.

After hearing the testimony of each party present and of any witnesses, or upon consent of Respondent, the Court finds, based on the specific facts of this case, that Petitioner is a victim of sexual violence by Respondent and meets the requirements for an injunction established by law.

SECTION III. INJUNCTION AND TERMS

This injunction shall be in full force and effect until ( ) further order of the Court ( ){date}_This injunction is valid and enforceable throughout all counties in the State of Florida. The terms of this injunction may not be changed by either party alone or by both parties together. Only the Court may modify the terms of this injunction. Either party may ask the Court to change or end this injunction.

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


source: Caselaw Access Project

author: PER CURIAM. PARIENTE, C.J., CANTERO, J., WELLS, J.,

license: Public Domain

text:
    FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES, et al., Appellants, v. F.L., the Mother, Appellee.
    No. SC03-1602.
    Supreme Court of Florida.
    July 8, 2004.

      Charles J. Crist, Jr., Attorney General, John J. Rimes, III, Senior Assistant Attorney General, Christopher M. Kise, Solicitor General, Lynn C. Hearn, Deputy Solicitor General, Tallahassee, FL; Dennis W. Moore, Guardian ad Litem Program, Kis-simmee, FL, for Appellant.
    Felicia Shaman, Fort Lauderdale, FL; Ryan Truskoski, Orlando, FL; and Beverly A. Pohl of Bruce S. Rogow, P.A., Fort Lauderdale, FL, for Appellee.
   PER CURIAM.

Section 39.806(l)(i), Florida Statutes (2001), authorizes the filing of a petition for termination of parental rights “when the parental rights of the parent to a sibling have been terminated involuntarily.” In F.L. v. Department of Children & Families, 849 So.2d 1114 (Fla. 4th DCA 2003), the Fourth District Court of Appeal declared this statutory section unconstitutional. For the reason discussed herein, we determine that section 39.806(l)(i) is constitutional and reverse the decision of the Fourth District.

FACTS

The trial court entered an order terminating the parental rights of F.L., the mother, to her seventh child, C.N., Jr. On appeal, the Fourth District Court of Appeal reversed the trial court’s order of termination. The Department of Children and Families (DCF), joined by the child’s guardian ad litem, appeals the Fourth District’s decision.

F.L., the mother, has a long history with DCF. F.L. grew up in an abusive home. By the time she was in her late teens, F.L. had three children and was in an abusive relationship with C.N., Sr., an admitted drug dealer. In 1997, DCF filed a petition for dependency as to F.L.’s three children, alleging that F.L. was intoxicated while caring for the children, that the children were dirty, that F.L. had a history of domestic violence with the father, and that the home had no electricity or hot water and had an inoperable toilet. The three children were adjudicated dependent, and the court approved a reunification case plan. The plan consisted of assessments, participation in a parenting course, completion of a substance abuse course, completion of a domestic violence program, and maintaining stable housing and income.

In early 1998, while this dependency action was pending, F.L. prematurely gave birth to a fourth child. DCF immediately took custody of this child and filed a petition for dependency based on the child’s low birth weight and F.L.’s lack of prenatal care, and based on the allegations made in the petition for dependency of F.L.’s other children. The trial court declared F.L.’s fourth child dependent and provided a case plan for reunification similar to F.L.’s previous plan. In October 1998, the trial court found that F.L. had completed none of the required tasks on her two case plans. The court ordered DCF to file a petition to terminate F.L.’s parental rights. DCF filed the petition in December 1998. In December 1999, F.L. signed voluntary surrenders of her parental rights to her first four children. The court entered a final judgment terminating her rights in January 2000.

During those proceedings, F.L. gave birth to a fifth child at the end of 1998. In February 1999, this child was sheltered by the trial court sua sponte. The child was adjudicated dependent, and the court gave F.L. a third reunification plan with the same conditions she had been given for reunification with her other four children. F.L.’s sixth child was born in March 2000. DCF took this child into custody based on F.L.’s medical neglect. The child weighed only three pounds at birth. F.L. failed to obtain necessary medical treatment or Medicaid services for this child. In June 2000, DCF filed a petition to terminate F.L.’s parental rights to her fifth and sixth children. In August 2000, F.L. signed a voluntary surrender of parental rights to her fifth child. At the same time, DCF gave F.L. a case plan for her sixth child.

In December 2000, the court entered a final order terminating F.L.’s rights to her sixth child. The order was based on the court’s finding under section 39.806(l)(c) Florida Statutes (2000), that F.L. failed to substantially comply with her case plans and that her continued involvement in the parent-child relationship would threaten the child’s welfare.

C.N., Jr., the child involved in this case, was born on January 3, 2002. Just before C.N., Jr.’s birth, in November 2001, the father C.N., Sr. was incarcerated for possession of cocaine; he was released on August 25, 2002. In early 2002, an investigator from the Broward County Sheriffs Office visited F.L.’s' home several times. The investigator said that F.L. was providing C.N., Jr. with appropriate care and saw no danger to C.N., Jr. Also during this time, an Early Services Intervention counselor assigned by DCF met with F.L. and said that F.L. had bonded with C.N., Jr. and was providing adequate care. Nonetheless, in April 2002, the Broward County Sheriffs Office learned that F.L.’s rights to her sixth child had been terminated involuntarily. For this reason, the Sheriffs Office filed a petition to remove C.N., Jr. from F.L.’s care. On April 24, 2002, the trial court denied the petition, finding that C.N., Jr. was receiving adequate care.

In mid-May 2002, DCF assigned a new case worker to the case. The case worker first-met with F.L. on May 16. Five days later, DCF removed C.N., Jr. from F.L. and filed a request for an emergency hearing. In June .2002, DCF filed a petition to terminate F.L.’s parental rights to C.N., Jr. This petition alleged two separate and distinct grounds for termination: (1) a substantial risk of imminent harm to C.N., Jr. based on F.L.’s history of domestic violence, neglect of her , children, and failure to comply with her case plans, justifying termination under section 39.806(l)(c); and (2) the prior involuntary termination of F.L.’s rights to her sixth child, a justification for termination under section 39.806(l)(i).

In October 2002, the trial court terminated F.L.’s parental rights. The court found that DCF had given F.L. referrals for parenting counseling, substance abuse evaluation, and domestic violence counseling, but that F.L. had not substantially complied with any of these plans. Specifically, the court found clear and convincing evidence that F.L. had failed to complete a domestic violence program despite four referrals. The court found that F.L. was most recently involved in a domestic violence incident with C.N., Sr. on September 5, 2002, shortly after his release from jail on August 25, but that F.L. failed to file for a restraining order as the responding officer recommended. The court also found that F.L. underwent a substance abuse evaluation by Dr. Kathleen Rhodes, at F.L.’s attorney’s referral, but that F.L. failed to give Dr. Rhodes accurate information about her substance abuse history. F.L. also refused to provide a court-ordered hair follicle for testing. In addition, despite a case plan which required completion of a thirty-six-week parenting program, the only parenting program F.L. ever completed was a twelve-week in-home program. Finally, the court found that F.L. missed some scheduled supervised visits with C.N., Jr., never paid child support, and did not have a stable residence or employment for six months after C.N., Jr.’s birth.

In the trial court’s conclusions of law, the court said that the grounds for termination had been met as set forth in both sections 39.806(l)(c) and 39.806(l)(i). The court found that F.L. “made a minimal effort prior to the hearing to avoid termination of her parental rights, but even then she missed appointments, stopped going to sessions, failed to reschedule and follow through.” The court also found that F.L. “failed to come forward with evidence that the circumstances or pattern of conduct that led to the involuntary termination of her parental rights to the other child cannot serve as a predictor of her conduct with this child.” Ultimately, the court concluded that F.L. “demonstrated a continued unwillingness and inability ... to parent her child.” Based on the risk to C.N., Jr.’s safety and health, the court concluded that it was in the manifest best interest of the child to terminate F.L.’s parental rights.

The Fourth District reversed, holding that DCF had failed to prove the requirements to terminate F.L.’s parental rights under either section 39.806(1)(c) or section 39.806(1)(i). F.L. v. Dep’t of Children & Families, 849 So.2d 1114, 1120 (Fla. 4th DCA 2003). Further, the Fourth District declared section 39.806(1)(i) facially unconstitutional, reasoning that the statute impermissibly shifts the burden to the parent to show that her past conduct does not predict that the current child is at risk. 849 So.2d at 1123.

As the appellants, DCF and the guardian ad litem argue that section 39.806(1)(i) is constitutional both facially and as applied in this case. Further, they argue that substantial competent evidence supports the termination of F.L.’s parental rights under either section 39.806(1)(c) or section 39.806(1)(i).

CONSTITUTIONALITY OF SECTION 39.806(1)0)

Section 39.806(1)®, Florida Statutes (2002), provides:

(1) The department, the guardian ad litem, or any person who has knowledge of the facts alleged or who is informed of those facts and believes they are true may petition for the termination of parental rights under any of the following circumstances:
(i) When the parental rights of the parent to a sibling have been terminated involuntarily.

Standard of Review

We review de novo a district court decision declaring a statute unconstitutional. State v. Glatzmayer, 789 So.2d 297, 301 n. 7 (Fla.2001). When a statute impinges on a fundamental liberty interest, we analyze the statute’s constitutionality under a strict scrutiny standard. Beagle v. Beagle, 678 So.2d 1271, 1276 (Fla.1996). Parents have a fundamental liberty interest, protected by both the Florida and federal constitutions, in determining the care and upbringing of their children. See, e.g., Beagle, 678 So.2d at 1275; Padgett v. Dep’t of Health & Rehab. Servs., 577 So.2d 565, 570 (Fla.1991); see also Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) (holding that parents have a constitutionally protected liberty interest in the “care, custody and management” of their children). Because section 39.806(1)® impinges on fundamental parental rights, the strict scrutiny standard applies. To survive a constitutional challenge under this test, the statute must serve a compelling state interest through the least intrusive means possible. Beagle, 678 So.2d at 1276.

Whenever possible, however, a statute should be construed so as not to conflict with the constitution. Firestone v. News-Press Pub. Co., 538 So.2d 457, 459 (Fla.1989). To uphold a statute in the face of a constitutional challenge, a court may place a saving construction on the statute when this does not effectively rewrite the statute. See, e.g., id. At 460 (giving Florida’s polling place statute a narrowing construction); State v. Stalder, 630 So.2d 1072, 1076 (Fla.1994) (giving Florida’s hate crimes statute a narrowing construction).

Constitutional Requirements in the Termination of Parental Rights

Section 39.806(1)® authorizes the termination of parental rights when the parental rights of the parent to a sibling have been terminated involuntarily. We have previously addressed a similar statutory provision and have established the constitutional requirements for a termination of rights based on the parent’s conduct toward a different child. See Padgett v. Dep’t of Health & Rehab. Servs., 577 So.2d 565 (Fla.1991). In Padgett, a mother appealed the termination of her rights to her fifth child. Her rights to her previous four children had been terminated based on serious abuse and neglect. Id. at 566-68. The trial court terminated the mother’s rights to her fifth child based on a finding of “a substantial likelihood of future abuse and neglect of the child.” Id. at 568. The mother argued that the termination of her rights could not be based on prospective abuse. Id.

In Padgett, we rejected the mother’s argument. We recognized that parents have a fundamental liberty interest in the care and upbringing of their children. Id. at 570. Nonetheless, Padgett emphasized that parental rights may be superseded by the State’s compelling duty to protect children. Id. (stating that “the [parental] right is not absolute but is subject to the overriding principle that it is the ultimate welfare or best interest of the child which must prevail”) (quoting In re Camm, 294 So.2d 318, 320 (Fla.), cert. denied, 419 U.S. 866, 95 S.Ct. 121, 42 L.Ed.2d 103 (1974)).

To protect the rights of both parent and child, Padgett held that to terminate parental rights, “the state must show by clear and convincing evidence that reunification with the parent poses a substantial risk of significant harm to the child.” Id. at 571. We said that this ordinarily means that the state must show that the parent abused, neglected, or abandoned the child; however, a termination of rights to one child under circumstances of abuse or neglect can serve as grounds to terminate the parent’s rights to another child. Id. Nonetheless, Padgett held that in either case, the state must establish that the termination of rights “is the least restrictive means of protecting the child from serious harm.” Id. Implicit in our decision in Padgett is the recognition that in some cases, but not in all cases, a parent’s conduct toward another child may demonstrate a substantial risk of significant harm to the current child. In all cases, we emphasized that to pass constitutional muster, the termination of parental rights to the current child must be the least restrictive means of protecting that child from harm. Id. at 571. This determination can be made only after a judicious assessment of all relevant circumstances. As we explained in In re M.F., 770 So.2d 1189 (Fla.2000), our decision in Padgett was not based on any single fact; instead, it was based “on extensive and wide-ranging evidence of abuse and neglect.” 770 So.2d at 1193. Thus, Padgett requires that a termination decision be based on the totality of the circumstances. See also M.F., 770 So.2d at 1194 (holding that a trial court may not base a final ruling of dependency solely on the fact that the parent committed a sex act on a different child, but must focus on all of the circumstances surrounding the current petition).

Applications of Padgett to Section 39.806(l)(i)

While we have not previously considered the application of Padgett to section 39.806(1)(i), several district courts have struggled to interpret the statute in light of Padgett’s constitutional requirements. In A.B. v. Department of Children & Families, 816 So.2d 684 (Fla. 5th DCA 2002), a mother challenged the constitutionality of section 39.806(1)(i). The Fifth District upheld the statute, stating that:

[A] parent whose rights have been involuntarily terminated as to one child may avoid termination as to another child if he or she comes forward with evidence that the circumstances or pattern of conduct that led to termination of parental rights to the other child cannot serve as a predictor of his or her conduct with the child at issue.

Id. at 686. A.B.’s interpretation, that the statute creates a presumption sufficient for termination but subject to rebuttal by a parent, has been endorsed in other appellate cases. See, e.g., T.P. v. Dep’t of Children & Families, 860 So.2d 1084 (Fla. 5th DCA 2003); In re T.S., 855 So.2d 679 (Fla. 2d DCA 2003).

However, the constitutionality of such a rebuttable presumption in this context has been disputed. In C.W. v. Department of Children & Families, 814 So.2d 488 (Fla. 1st DCA 2002), Judge Ervin wrote separately to express the view that section 39.806(1)(i) should not be used to terminate parental rights based solely on the parent’s conduct with previous children. Id. at 495. Judge Ervin argued that to comport with Padgett, the state must also prove that the behavior of the parent is likely to continue, thereby placing the unharmed child at risk. Id. at 498.

The Fourth District in the present case agreed with Judge Ervin and disapproved the rebuttable presumption created by A.B. See F.L., 849 So.2d at 1123. F.L. stated that the rebuttable presumption of AB. impermissibly shifts to the parent the burden to show a lack of substantial risk of harm to the current child. 849 So.2d at 1123. This relieves the state of the burden of proof, violating Padgett’s requirement that to pass constitutional muster, the state must be required to prove that reunification with the current child would pose substantial risk to the child. F.L., 849 So.2d at 1123 (citing Padgett, 577 So.2d at 571).

Constitutional Construction of Section 39.806(l)(i)

We agree with the Fourth District that section 39.806(l)(i) may not constitutionally permit a termination of parental rights without proof of substantial risk to the child. The rebuttable presumption stated in A.B. would relieve the state of this burden of proof. This burden shifting would violate the constitutional requirements articulated in Padgett. We therefore disapprove the use of such a rebutta-ble presumption. However, we have an obligation to construe section 39.806(l)(i) in a way that preserves its constitutionality. See Doe v. Mortham, 708 So.2d 929, 934 n. 12 (Fla.1998).

F.L. argues on appeal that under a constitutional interpretation, section 39.806(l)(i) merely gets DCF through the courthouse door, i.e., the statute allows DCF to file a petition for termination of parental rights without the prerequisite case plan, based on a prior involuntary termination. But to be constitutional under Padgett, the statute must be interpreted as requiring DCF to also prove that reunification would be a substantial risk to the child and that termination is the least restrictive way to protect the child.

We agree with this interpretation. In enacting section 39.806(l)(i), the Legislature did not abrogate the constitutional requirements of Padgett. The Legislature is presumed to know the judicial constructions of a law when amending that law, and the Legislature is presumed to have adopted prior judicial constructions of a law unless a contrary intention is expressed. See City of Hollywood v. Lombardi, 770 So.2d 1196, 1202 (Fla.2000). In 1998, the Legislature added subsection (i) to the grounds enumerated in section 39.806(1) for terminating parental rights. See ch. 98-403, § 88, at 3205, Laws of Fla. Nothing expressed or implied in subsection (i) suggests that the Legislature intended to abolish the constitutional mandate of Padgett. Padgett, therefore, represents a binding judicial construction of the statute governing the termination of parental rights. Padgett’s requirements remain unchanged by the 1998 amendment adding subsection (i) to section 39.806(1).

We, therefore, hold that parental rights may be terminated under section 39.806(l)(i) only if the state proves both a prior involuntary termination of rights to a sibling and a substantial risk of significant harm to the current child. Further, the state must prove that the termination of parental rights is the least restrictive means of protecting the child from harm. For a trial court applying section 39.806(1)®, the circumstances leading to the prior involuntary termination will be highly relevant to the court’s determination of whether the current child is at risk and whether termination is the least restrictive way to protect the child. Specifically, if the parent’s conduct that led to the involuntary termination involved egregious abuse or neglect of another child, this will tend to indicate a greater risk of harm to the current child. The amount of time that has passed since the prior involuntary termination will also be relevant. A very recent involuntary termination will tend to indicate a greater current risk. Finally, evidence of any change in circumstances since the prior involuntary termination will obviously be significant to a determination of risk to a current child. While a parent’s past conduct necessarily has some predictive value as to that parent’s likely future conduct, positive life changes can overcome a negative history.

We must emphasize that a parent is not required to show evidence of changed circumstances to avoid a termination of rights under section 39.806(1)®. The trial court may consider evidence introduced by any party when considering whether a current child is at substantial risk of significant harm and whether termination of rights is the least restrictive means of protecting the child from harm. However, to support a termination order under section 39.806(1)®, DCF must prove by clear and convincing evidence that the parent’s rights to a prior child were terminated involuntarily, that the current child is at substantial risk of significant harm, and that termination of rights is the least restrictive means of protecting the child from harm. Interpreted in this light, section 39.806(1)® is constitutional.

Application to this Case

Having clarified the proof required for a termination of parental rights under section 39.806(1)®, we now address the trial court’s order of termination in this case. The trial court concluded that clear and convincing evidence supports the termination of F.L.’s parental rights under section 39.806(1)®. As we have explained above, to establish grounds for termination under section 39.806(1)®, DCF must prove both a prior involuntary termination and a substantial risk of significant harm to the current child. Further, DCF must prove that termination of rights is the least restrictive means of protecting the child from harm. In this case, the trial court applied the test from A.B. v. Department of Children & Families, 816 So.2d 684 (Fla. 5th DCA 2002), which requires a parent whose prior rights were terminated to rebut a presumption in favor of the termination of rights to a current child. The order indicates that the trial court placed the burden on F.L., stating that F.L. “failed to come forward with evidence that [her prior] conduct ... cannot serve as a predictor of her conduct with this child.” We have disapproved the A.B. re-buttable presumption because the burden must remain on DCF to prove the elements required for a termination of parental rights. We, therefore, reverse the decision of the district court and remand the case for the trial court to apply the constitutional interpretation of section 39.806(1)® to the facts.

CONCLUSION

We hold that parental rights may be terminated under section 39.806(1)® only if the state proves both a prior involuntary termination of rights to a sibling and a substantial risk of significant harm to the current child. Further, the state must prove that the termination of parental rights is the least restrictive means of protecting the current child from harm. The circumstances surrounding a prior involuntary termination are highly relevant to a court’s determination of whether a current child is at risk and whether termination is the least restrictive way to protect the child. However, our decision in Padgett v. Department of Health & Rehabilitative Services, 577 So.2d 565 (Fla.1991), requires that a termination decision be based not on any single act or omission with respect to a previous child, but rather on the totality of circumstances surrounding the current petition.

It is so ordered.

PARIENTE, C.J., and ANSTEAD, LEWIS, QUINCE, and BELL, JJ„ concur.

PARIENTE, C.J., concurs with an opinion, in which ANSTEAD, J., concurs.

CANTERO, J., concurs specially with an opinion, in which WELLS, J., concurs.

WELLS, J., concurs in part and dissents in part with an opinion.

PARIENTE, C.J.,

concurring.

I concur in the majority opinion in which the Court finds this statutory provision constitutional only with the dual provisos that the burden of proof may not be shifted to the parent and that there must be proof of substantial risk of significant harm to the current child. Further, as the majority explains, the State must prove that the termination of parental rights is the least restrictive means of protecting the child from harm. Because the trial court’s order does not comply with any of these requirements and because DCF did not offer F.L. a case plan with a goal of reunification, I would remand to the trial court for further proceedings as the Fourth District opinion directs.

In brief response to Justice Cantero’s specially concurring opinion, I agree that section 39.810 contains a detailed description of the factors that the trial court must consider in determining whether termination is in the manifest best interests of the child. However, a manifest best interests determination is not the equivalent of requiring the State to prove substantial risk of significant harm to the child under one of the statutory grounds for termination contained in section 39.806.

In response to Justice Wells’ concurring in part and dissenting in part opinion that would affirm the trial court’s order, I agree that the trial court’s order is indeed detailed. However, as the Fourth District observed, the trial court’s order clearly shifted the burden to the mother to show that her conduct that caused the termination of her parental rights to previous children would not serve as a predictor of her conduct with the present child. See F.L. v. Dep’t of Children & Families, 849 So.2d 1114, 1122 (Fla. 4th DCA 2003). As Judge Warner’s detailed opinion further explains regarding the evidence in this case,

DCF failed to prove that regardless of the provision of services, F.L.’s continued involvement as a parent to C.N., Jr. would threaten his well-being. The original allegations against F.L. consisted of her being intoxicated around her children sometime in 1997 and medical neglect of a congenital condition. F.L. was also accused of medical neglect of Y.L., F.N., and Cl.N. As to C.N., Jr., not only was there no allegation of medical neglect, but the undisputed evidence showed that F.L. had provided all appropriate medical care to C.N., Jr. Before DCF became involved, F.L. had taken the baby to the pediatrician, made sure he was properly immunized, and even noticed diaper rash on him when he was not in her custody. She also had adequate food, formula, and clothing for the baby. These were actions that F.L. never took with her other children. Therefore, DCF did not prove that C.N., Jr., would be medically neglected irrespective of the provision of services. As to the intoxication, there was no evidence presented that the mother abused illegal substances or alcohol. The only evidence DCF presented was the single incident where she was intoxicated around her other children. This was insufficient to show that her continuing involvement with C.N., Jr., would create harm to him. While she failed to attend programs on substance abuse required under the prior case plans, after an evaluation by a substance abuse therapist, the therapist concluded that she was not an abuser and that treatment was unnecessary. Although DCF suggested the therapist did not have all the correct information, there was still no evidence that F.L. abused substances or that she would be harmful to her child as a result. At the very least, no evidence supported the finding she would be a continued danger to her child irrespective of the provision of services.
Despite DCF’s refusal to offer her a case plan, the mother actively sought services to improve herself, something she had never done with the prior children. She attended several programs, and her counselors and therapists all believed that she was making a sincere and able effort to learn to parent correctly. Although the trial court considered this “too little too late,” in the past she had never even started any programs or services. This time she did them on her own without assistance from DCF. Because there was evidence that F.L. had in fact improved her parenting skills with the provision of services, DCF failed to prove by clear and convincing evidence that any efforts would be futile to terminate F.L.’s rights pursuant to section 39.806(l)(e).
The court also found that DCF proved the termination of F.L.’s rights under section 39.806(l)(i), which ... allows for termination when the parent’s rights to another child have been involuntarily terminated. Because her rights to Cl.N. were involuntarily terminated, the court shifted the burden to the mother to show her conduct that caused the termination of her parental rights as to Cl.N. would not serve as a predictor of her conduct with C.N., Jr. Finding that she had not satisfied that burden, the court terminated her rights.

Id. at 1121-22. Therefore, the Fourth District’s decision to remand this case to the trial court for further proceedings is entirely appropriate. DCF’s current policy, which is consistent with the case law and the statute, is to promote family preservation if reunification can be accomplished without substantial risk of harm to the child. See Curtis Krueger, DCF Policy Shift Aims to Keep Families Together, St. Petersburg Times, February 7, 2003, available at http://www. sptimes.com/2003/02/07/State/DCF_poli-cy_shift_aims. shtml (last visited June 23, 2004).

Despite the sad history that led to the termination of F.L.’s parental rights to her previous children, there is every indication that F.L. now realizes that she must do whatever is necessary so as not to lose this child. I hope that part of that effort is the recognition that substance abuse may very well have led to her past neglect of her older children. Finally, although ending the uncertainties of litigation and stabilizing the child’s life are always laudable goals, see concurring in part and dissenting in part opinion at 29, these goals alone are not sufficient reasons to uphold an order of termination that is based on an unconstitutional shifting of the burden of proof to the parent. This Court and the Fourth District have done everything possible to expedite these appeals so that this case can be expeditiously returned to the trial court for further proceedings. But if there is a chance that the parent and child could be reunited without harm to the child, that is clearly the preferable alternative.

ANSTEAD, J., concurs.

CANTERO, J.,

specially concurring.

I agree with the majority that section 39.806(0®; Florida Statutes, is constitutional, but I believe that section 39.810 greatly affects the constitutional analysis. I would adopt Judge Sawaya’s specially concurring opinion in T.P. v. Department of Children & Families, 860 So.2d 1084, 1090-95 (Fla. 5th DCA 2003), which recognizes the interplay between sections 39.806 and 39.810 and concludes that the statute does not shift the burden of proof and does not create a rebuttable presumption.

Chapter 39 establishes a two-part process for terminating parental rights. First, it allows interested parties, including the Department of Children and Families (DCF), to petition the court to terminate a parent’s rights in the child when specified circumstances exist. These include when the parent has voluntarily surrendered or abandoned the child, when the parent is incarcerated (and other conditions are met), and when a parent has failed to comply with a case plan. § 39.806(1)(a)-(i), Fla. Stat. (2002). One of these circumstances is “[w]hen the parental rights of the parent to a sibling have been terminated involuntarily.” § 39.806(i )(i), Fla. Stat. (2002). None of these circumstances, however, in itself authorizes the termination of a parent’s rights. Rather, as the majority notes, section 39.806(i)(i) — as with any other subsection — “merely gets DCF through the courthouse door.” Majority op. at 609. This is where section 39.810 comes in.

As Judge Sawaya explains, 860 So.2d at 1092, after this Court’s decision in Padgett v. Department of Health & Rehabilitative Services, 577 So.2d 565, 570 (Fla.1991), and in recognition of the overriding importance of protecting the welfare of children, the Florida Legislature in 1994 enacted section 39.4612, Florida Statutes, renumbered in 1998 as section 39.810. This statute is entitled “Manifest best interests of the child” and provides in pertinent part that “[i]n a hearing on a petition for termination of parental rights, the court shall consider the manifest best interests of the child” (emphasis added). The grounds for termination must be established by clear and convincing evidence. § 39.809(1), Fla. Stat. (2002); § 39.811(2), Fla. Stat. (2002).

Therefore, in every termination case— whether based on the termination of rights in a sibling or another ground — it is the burden of the petitioner, usually DCF, to establish by clear and convincing evidence that termination of parental rights is in the manifest best interests of the child. See L.O. v. Florida Dep’t of Children & Fam. Servs., 807 So.2d 810 (Fla. 4th DCA 2002); In re K.M., 788 So.2d 306 (Fla. 2d DCA 2001); In re K.C.C., 750 So.2d 38 (Fla. 2d DCA 1999); C.C. v. Dep’t of Children & Fam. Servs., 812 So.2d 520 (Fla. 1st DCA 2002). As one court has explained, “[w]e are obliged to affirm the termination of parental rights if [DCF] has met its burden to present clear and convincing evidence of a statutory ground for terminating parental rights, along with clear and convincing evidence that terminating parental rights is in the best interests of the child.” N.L. v. Dep’t of Children & Fam. Servs., 843 So.2d 996, 999 (Fla. 1st DCA 2003).

Section 39.810 specifically requires that the trial court, in determining whether termination is in the manifest best interests of the child, consider and evaluate all relevant factors, which “shall not include a comparison between the attributes of the parents and those of any persons providing a present or potential placement for the child” (emphasis added). That section then goes on to list eleven nonexclusive factors that the court must consider.

These are:

(1) Any suitable permanent custody arrangement with a relative of the child.
(2) The ability and disposition of the parent or parents to provide the child with food, clothing, medical care or other remedial care recognized and permitted under state law instead of medical care, and other material needs of the child.
(3) The capacity of the parent or parents to care for the child to the extent that the child’s safety, well-being, and physical, mental, and emotional health will not be endangered upon the child’s return home.
(4) The present mental and physical health needs of the child and such future needs of the child to the extent that such future needs can be ascertained based on the present condition of the child.
(5) The love, affection, and other emotional ties existing between the child and the child’s parent or parents, siblings, and other relatives, and the degree of harm to the child that would arise from the termination of parental rights and duties.
(6) The likelihood of an older child remaining in long-term foster care upon termination of parental rights, due to emotional or behavioral problems or any special needs of the child.
(7) The child’s ability to form a significant relationship with a parental substitute and the likelihood that the child will enter into a more stable and permanent family relationship as a result of permanent termination of parental rights and duties.
(8) The length of time that the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity.
(9) The depth of the relationship existing between the child and the present custodian.
(10) The reasonable preferences and wishes of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.
(11) The recommendations for the child provided by the child’s guardian ad litem or legal representative.

§ 39.810, Fla. Stat. (2002) (emphasis added). Thus, with the enactment of section 39.810, the State may no longer terminate the parental rights in one child solely because that parental rights in another have been terminated. DCF (or some other party) must still prove by clear and convincing evidence that termination of parental rights is in this child’s best interests. The statute creates no presumption, and, as the majority notes, we should impose none.

In Padgett, we held that to terminate the parental rights in one child based solely on the prior termination of rights in another child, “the state must show by clear and convincing evidence that reunification with the parent poses a substantial risk of significant harm to the child.” 577 So.2d at 571. The state must also establish that termination of parental rights “is the least restrictive means of protecting the child from serious harm.” Id. We decided Padgett before section 39.810 was enacted. Padgett essentially filled in a constitutional gap in the statute. Section 39.810 now provides the filler. It contains a host of factors the court must consider, along with all other relevant ones that would depend on the circumstances. I believe these factors grant the protection Padgett requires. Moreover, it is more encompassing than Padgett and accounts for the wide range of circumstances that may exist in termination, cases. For example, if the child is currently residing with the parent, the “reunification” standard of Padgett would not even apply because the parent and child have never been separated. Padgett’s “substantial risk of significant harm to the child” standard is subsumed in subsection (3) of section 39.810 (addressing “[t]he capacity of the parent or parents to care for the child to the extent that the child’s safety, well-being, and physical, mental, and emotional health will not be endangered upon the child’s return home”), as well as subsection (4) (addressing “[t]he present mental and physical health needs of the child and such future needs of the child to the extent that such future needs can be ascertained based on the present condition of the child”). To the extent it is not subsumed within those subsections, it is a catch-all factor.

As to Padgett’s “least restrictive means” standard, subsection (1) requires a court to consider “[a]ny suitable permanent custody arrangement with a relative of the child” — a less restrictive means than termination. Judge Sawaya has noted that a finding that termination is in the child’s manifest best interests necessarily implies that no less restrictive alternatives exist. Therefore, section 39.810 renders the less restrictive means test unnecessary. See T.P., 860 So.2d at 1094-95 (Sawaya, C.J., specially concurring).

Section 39.806 specifies the circumstances under which one may petition for the termination of parental rights. Under section 39.810, however, the burden remains on the petitioner to prove by clear and convincing evidence that the best interests of the child require it. Therefore, I would hold that on that basis the statute does not create a rebuttable presumption and does not shift the burden. Section 39.806(l)(i) is constitutional.

WELLS, J., concurs.

WELLS, J.,

concurring in part and dissenting in part.

I concur in reversing the district court’s decision and in finding the statute to be constitutional. I concur with Justice Cantero’s specially concurring opinion.

I dissent from remanding this case to the trial judge. From a reading of the trial judge’s detailed fifteen-page order, I find that he, in sum, applied the law correctly and that his factual determinations are supported by competent, substantial evidence. I would affirm the trial court’s order and end the uncertainties of litigation for this child. Stabilizing this child’s life is clearly in the child’s best interest.

      . We have jurisdiction pursuant to article V, section 3(b)(1) of the Florida Constitution.

      . The trial court also terminated the parental rights of the father, C.N., Sr., who did not appeal. We commend the trial court's diligence in conducting an extensive evidentiary hearing and providing a thorough and well-analyzed order.

      . Section 39.806(l)(c) authorizes the filing of a petition for the termination of parental rights
      [w]hen the parent or parents engaged in conduct toward the child or toward other children that demonstrates that the continuing involvement of the parent or parents in the parent-child relationship threatens the life, safety, well-being, or physical, mental, or emotional health of the child irrespective of the provision of services. Provision of services may be evidenced by proof that services were provided through a previous plan or offered as a case plan from a child welfare agency.
      § 39.806(l)(c), Fla. Stat. (2002).

      . Section 39.806(l)(i) authorizes the filing of a petition for the termination of parental rights "[w]hen the parental rights of the parent to a sibling have been terminated involuntarily.” § 39.806(l)(i), Fla. Stat. (2002).

      . To terminate parental rights, DCF must also prove by clear and convincing evidence that termination is in the manifest best interest of the child. See §§ 39.802(4)(c), 39.809(1), 39.810, Fla. Stat. (2002).

      . We note that the statutory determination of the manifest best interest of the child is unchanged by our opinion here. See §§ 39.802(4)(c), 39.809(1), 39.810, Fla. Stat. (2002).

      . We have defined "clear and convincing evidence” as
      an "intermediate level of proof [that] entails both a qualitative and quantitative standard. The evidence must be credible; the memories of the witnesses must be clear and without confusion; and the sum total of the evidence must be of sufficient weight to convince the trier of fact without hesitancy.” In re Davey, 645 So.2d 398, 404 (Fla. 1994). The trial judge is responsible for finding facts and for resolving any conflicts in the evidence. Florida Bar v. Hooper, 509 So.2d 289, 290-91 (Fla.1987). As we said in Davey, the evidence must be sufficient to convince the trier of fact without hesitancy. 645 So.2d at 404.

        In re Adoption of Baby E.A.W., 658 So.2d 961, 967 (Fla. 1995), cert. denied, 516 U.S. 1051, 116 S.Ct. 719, 133 L.Ed.2d 672 (1996).

      . The emphasized factors are relevant considerations in this case.


author: PER CURIAM.

text:
    Mark D. MILLS, Petitioner, v. STATE of Florida, Respondent.
    No. SC01-1862.
    Supreme Court of Florida.
    July 8, 2004.
    Nancy A. Daniels, Public Defender, and Phil Patterson, Assistant Public Defender, Second Judicial Circuit, Tallahassee, FL, for Petitioner.
    Charles J. Crist, Jr., Attorney General, Robert R. Wheeler, Bureau Chief, and Karen M. Holland, Assistant Attorney General, Tallahassee, FL, for Respondent.
   PER CURIAM.

We have for review Mills v. State, 791 So.2d 591 (Fla. 1st DCA 2001), which expressly and directly conflicts with our decision in Harvey v. State, 848 So.2d 1060 (Fla.2003). We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. We accept jurisdiction in this case, quash the decision of the First District Court of Appeal, and remand for reconsideration in light of our decisions in Harvey and Brannon v. State, 850 So.2d 452 (Fla.2003).

It is so ordered.

PARIENTE, C.J., and WELLS, ANSTEAD, LEWIS, QUINCE, CANTERO, and BELL, JJ., concur.


text:
    Lawanda BYRD, Petitioner, v. STATE of Florida, Respondent.
    No. SC03-284.
    Supreme Court of Florida.
    July 8, 2004.

      Nancy A. Daniels, Public Defender, P. Douglas Brinkmeyer, Assistant Public Defender, and Edward L. Harvey, Assistant Public Defender, Second Judicial Circuit, Tallahassee, FL, for Petitioner.
    Charles J. Crist, Jr., Attorney General, Robert Wheeler, Bureau Chief and Giselle Lylen Rivera, Assistant Attorney General, Tallahassee, FL, for Respondent.
   PER CURIAM.

We originally accepted jurisdiction to review Byrd v. State, 834 So.2d 872 (Fla. 1st DCA 2002), pursuant to article V, section 3(b)(1) and 3(b)(3) of the Florida Constitution, on the ground that the district court’s decision declared invalid a state statute and construed a provision of the state constitution. What we did not recognize at the time, and what neither party brought to our attention, was that the opinion declaring the statute invalid was signed by only one judge on the district court’s three-judge panel; the other two judges concurred in the result (affirming the trial court’s denial of Byrd’s motion to dismiss) but did not join in the opinion. Thus, the opinion declaring the statute invalid was not the actual decision of the district court; it was the concurring opinion of one judge on the panel. Accordingly, we lack jurisdiction. See art. V, § 3(b)(1), Fla. Const, (providing this Court with mandatory jurisdiction to hear appeals from “decisions of district courts of appeal declaring invalid a state statute”); cf. Jenkins v. State, 385 So.2d 1356, 1359 (Fla.1980) (“[T]he language and expressions found in a dissenting or concurring opinion cannot support jurisdiction under section 3(b)(3) because they are not the decision of the district court of appeal.”). This case is hereby dismissed.

It is so ordered.

PARIENTE, C.J., and WELLS, ANSTEAD, LEWIS, QUINCE, CANTERO, and BELL, JJ., concur.


text:
    ADVISORY OPINION TO the ATTORNEY GENERAL RE PATIENTS’ RIGHT TO KNOW ABOUT ADVERSE MEDICAL INCIDENTS.
    No. SC04-777.
    Supreme Court of Florida.
    July 15, 2004.
    Charles J. Crist, Jr., Attorney General, and Louis Hubener, Assistant Attorney General, Tallahassee, FL, for Petitioner.
    Jon Mills and Timothy McLendon, Gainesville, FL, on behalf of Floridians for Patient Protection, Proponents.

      Graham H. Nichol, General Counsel and Don A. Dennis, Assistant General Counsel, Florida Dental Association; and Harold R. Mardenborough, Jr., of McFarlain & Cas-sedy, P.A., Tallahassee, FL, on behalf of Florida Dental Association, Opponents.
   PER CURIAM.

The Attorney General has requested that this Court review a proposed amendment to the Florida Constitution that would permit patients and prospective patients of health care providers to obtain information concerning adverse medical incidents. We have jurisdiction. See art. IV, § 10; art. V, § 3(b)(10), Fla. Const. For the reasons explained below, we approve the amendment and the ballot title and summary for placement on the ballot.

I. THE PROPOSED AMENDMENT AND BALLOT SUMMARY

The proposed amendment provides as follows:

1) Statement and Purpose:
The Legislature has enacted provisions relating to a patients’ bill of rights and responsibilities, including provisions relating to information about practitioners’ qualifications, treatment and financial aspects of patient care. The Legislature has, however, restricted public access to information concerning a particular health care provider’s or facility’s investigations, incidents or history of acts, neglects, or defaults that have injured patients or had the potential to injure patients. This information may be important to a patient. The purpose of this amendment is to create a constitutional right for a patient or potential patient to know and have access to records of a health care facility’s or provider’s adverse medical incidents, including medical malpractice and other acts which have caused or have the potential to cause injury or death. This right to know is to be balanced against an individual patient’s rights to privacy and dignity, so that the information available relates to the practitioner or facility as opposed to individuals who may have been or are patients.
2) Amendment of Florida Constitution:
Art. X, Fla. Const., is amended by inserting the following new section at the end thereof, to read:
Section 22. Patients’ Right to Know About Adverse Medical Incidents.
(a) In addition to any other similar rights provided herein or by general law, patients have a right to have access to any records made or received in the course of business by a health care facility or provider relating to any adverse medical incident.
(b) In providing such access, the identity of patients involved in the incidents shall not be disclosed, and any privacy restrictions imposed by federal law shall be maintained.
(c) For purposes of this section, the following terms have the following meanings:
(1) The phrases “health care facility” and “health care provider” have the meaning given in general law related to a patient’s rights and responsibilities.
(2) The term “patient” means an individual who has sought, is seeking, is undergoing, or has undergone care or treatment in a health care facility or by a health care provider.
(3) The phrase “adverse medical incident” means medical negligence, intentional misconduct, and any other act, neglect, or default of a health care facility or health care provider that caused or could have caused injury to or death of a patient, including, but not limited to, those incidents that are required by state or federal law to be reported to any governmental agency or body, and incidents that are reported to or reviewed by any health care facility peer review, risk management, quality assurance, credentials, or similar committee, or any representative of any such committees.
(4) The phrase “have access to any records” means, in addition to any other procedure for producing such records provided by general law, making the records available for inspection and copying upon formal or informal request by the patient or a representative of the patient, provided that current records which have been made publicly available by publication or on the Internet may be “provided” by reference to the location at which the records are publicly available.
3) Effective Date and Severability:
This amendment shall be effective on the date it is approved by the electorate. If any portion of this measure is held invalid for any reason, the remaining portion of this measure, to the fullest extent possible, shall be severed from the void portion and given the fullest possible force and application.

The ballot title for the proposed amendment is “Patients’ Right to Know About Adverse Medical Incidents.” The summary for the proposed amendment states:

Current Florida law restricts information available to patients related to investigations of adverse medical incidents, such as medical malpractice. This amendment would give patients the right to review, upon request, records of health care facilities’ or providers’ adverse medical incidents, including those which could cause injury or death. Provides that patients’ identitie [sic] should not be disclosed.

II. STANDARD AND SCOPE

OF REVIEW

In Advisory Opinion to the Att’y General re Amendment to Bar Government from Treating People Differently Based on Race in Public Education, 778 So.2d 888 (Fla.2000), this Court summarized its standard of review in initiative petition cases as follows:

The Court’s inquiry, when determining the validity of initiative petitions, is limited to two legal issues: whether the petition satisfies the single-subject requirement of article XI, section 3, Florida Constitution, and whether the ballot titles and summaries are printed in clear and unambiguous language pursuant to section 101.161, Florida Statutes (1999). See Advisory Opinion to the Attorney General re Right of Citizens to Choose Health Care Providers, 705 So.2d 563, 565 (Fla.1998); Advisory Opinion to the Attorney General re Prohibiting Public Funding of Political Candidates’ Campaigns, 693 So.2d 972, 974 (Fla.1997). In order for the Court to invalidate a proposed amendment, the record must show that the proposal is clearly and conclusively defective on either ground. See Askew v. Firestone, 421 So.2d 151, 154 (Fla.1982). In determining the propriety of the initiative petitions, the Court does not review the merits of the proposed amendments.

Id. at 890-91.

III. THE SINGLE-SUBJECT REQUIREMENT

A. APPLICABLE LAW

Article XI, section 3 of the Florida Constitution requires that an amendment proposed by initiative “shall embrace but one subject and matter directly connected therewith.” Importantly, the single-subject limitation protects the State’s fundamental document from “precipitous” and “spasmodic” changes. See Fine v. Firestone, 448 So.2d 984, 993 (Fla.1984). First, the single-subject requirement “allow[s] the citizens to vote on singular changes in our government that are identified in the proposal and to avoid voters having to accept part of a proposal which they oppose in order to obtain a change which they support.” Id. The limitation thereby prevents logrolling. “The second reason for the single-subject restriction is to prevent a single constitutional amendment from substantially altering or performing the functions of multiple aspects of government.” Advisory Op. to Att’y Gen. re Florida Transp. Initiative for Statewide High Speed Monorail, Fixed Guideway or Magnetic Levitation Sys., 769 So.2d 367, 369 (Fla.2000).

In determining compliance with the first purpose of the single-subject requirement, this Court examines the amendment to determine whether it “may be logically viewed as having a natural relation and connection as component parts or aspects of a single dominant plan or scheme. Unity of object and plan is the universal test-” Fine v. Firestone, 448 So.2d 984, 990 (Fla.1984) (quoting City of Coral Gables v. Gray, 154 Fla. 881, 19 So.2d 318, 320 (1944)).

As to the second purpose for the single-subject restriction, this Court has stated that a proposal that affects several branches of government will not automatically fail; rather, it is when a proposal substantially alters or performs the functions of multiple branches that it violates the single-subject test. See In re Advisory Op. to Att’y Gen.—Save Our Everglades, 636 So.2d 1336, 1340 (Fla.1994); see also Advisory Op. to Att’y Gen.—Limited Political Terms in Certain Elective Offices, 592 So.2d 225, 227 (Fla.1991); Evans v. Firestone, 457 So.2d 1351, 1354 (Fla.1984).

B. APPLICATION OF LAW

The opponent to the amendment argues that the amendment violates the single-subject requirement in two ways: (1) it constitutes logrolling and (2) it would affect more than one branch of government.

1. Logrolling

Opponent argues that while the amendment is designed to provide access to records on “adverse medical incidents,” it does so by repealing several different statutes with different purposes, and by restricting a number of different rights available to physicians which are also available to all other Floridians. As stated above, in order to determine whether an amendment constitutes logrolling this Court must examine the amendment to determine whether it “may be logically viewed as having a natural relation and connection as component parts or aspects of a single dominant plan or scheme.” Fine, 448 So.2d at 990 (quoting City of Coral Gables v. Gray, 154 Fla. 881, 19 So.2d 318, 320 (1944). Although the amendment may affect several different statutes, the amendment has but one purpose — providing access to records on adverse medical incidents — and all provisions of the amendment appear to be logically related to that purpose.

2. Effect on more than one branch of government

Opponent argues that the amendment affects both the legislative and the judicial branches because it would affect statutes and procedural rules. Unquestionably, the amendment would affect sections 395.0193(8) and 766.101(5) of the Florida Statutes (2003), which currently exempt the records of investigations, proceedings, and records of the peer review panel from discovery in a civil or administrative action. Indeed, this is a primary purpose of the amendment. Opponent also argues that the amendment would affect Florida Rule of Civil Procedure 1.280(c), which restricts the discovery of work product, including incident reports generated by health care providers and facilities. Further, opponent argues that the amendment infringes on the statutes and rules delineating the attorney-client privilege, as there is no exception in the amendment for pertinent documents created by attorneys.

Contrary to the clear effect upon the above two statutes, the amendment does not expressly affect either rule 1.280(c) or the attorney-client privilege, and there is no evidence of any intent to do so. Any effect on the rule or the privilege is purely speculative; and, even if true, any such effect would not rise to the level of “substantially” altering or performing a function of the judiciary.

IV. REVIEW OF BALLOT TITLE AND SUMMARY

I. APPLICABLE LAW

Section 101.106(1), Florida Statutes (2003), requires that the ballot caption for a proposed amendment not exceed fifteen words, that the ballot summary not exceed seventy-five words, and that the two clearly and unambiguously provide an explanation of the “chief purpose” of the measure. See Askew v. Firestone, 421 So.2d 151, 154-55 (Fla.1982). “This requirement provides the voters with fair notice of the contents of the proposed initiative so that the voter will not be misled as to its purpose and can cast an intelligent and informed ballot.” Advisory Op. to Att’y Gen. re People’s Property Rights Amendments Providing Compensation for Restricting Real Property Use May Cover Multiple Subjects, 699 So.2d 1304, 1307 (Fla.1997); see Askew, 421 So.2d at 155 (“Simply put, the ballot must give the voter fair notice of the decision he must make.”). The title and summary must be accurate and informative. See Advisory Op. to Att’y Gen. re Term Limits Pledge, 718 So.2d 798, 803 (Fla.1998). The ballot title and summary, however, are not required “to explain every detail or ramification of the proposed amendment.” Advisory Op. to Att’y Gen. re Prohibiting Public Funding of Political Candidates’ Campaigns, 693 So.2d 972, 975 (Fla.1997).

II. APPLICATION OF LAW

Opponent argues that the ballot title and summary are defective for five reasons: (1) the summary fails to fully inform the voters of the practical impact of the amendment on the existing peer review scheme and thereby prevents the voters from making a knowledgeable decision about what they might be giving up in exchange for what is being offered in the amendment; (2) the summary fails to inform the public of the significant impact the amendment will have on the constitutional powers granted to the judiciary; (3) the title and summary contain improper political rhetoric; (4) the title and summary are misleading because they purport to be giving the public more than they actually do give, and they imply that there are no current methods for obtaining any information on adverse medical incidents; and (5) important language in the summary is inconsistent with the language in the amendment itself.

1. The practical impact of the amendment

Opponent argues that the summary fails to inform voters that the amendment will have an effect on the peer review statutes. It argues that the Legislature may do away with the peer review system if the amendment passes, and that voters should be advised of the possible impact on this system.

While it is possible that the peer review system will be affected by the amendment, the ballot title and summary are not required “to explain every detail or ramification of the proposed amendment.” Id. It cannot be said that the lack of a prediction as to the amendment’s effect on the peer review statutes misleads the public as to the chief purpose of the amendment.

2. Significant impact on the judiciary

Opponent asserts that the title and summary do not inform the voters that the amendment restricts the power of the judiciary to establish procedural rules and to regulate attorneys. The basis for this argument is the effect that the amendment would have on work product and the attorney-client privilege. We reject this argument. The amendment will affect this Court’s procedural rules only to the extent that certain records currently classified as work product may have to be disclosed to certain persons. As we stated earlier, any effect on the attorney-client privilege is speculative.

3.Improper political rhetoric in the title and summary

Opponent argues that the summary contains improper political rhetoric. The summary states:

Current Florida law restricts information available to patients related to investigations of adverse medical incidents, such as medical malpractice. This amendment would give patients the right to review, upon request, records of health care facilities’ or providers’ adverse medical incidents, including those which could cause injury or death. Provides that patients’ identitie [sic] should not be disclosed.

This Court stated in Evans v. Firestone, 457 So.2d 1351, 1355 (Fla.1984), “[T]he ballot summary is no place for subjective evaluation of special impact. The ballot summary should tell the voter the legal effect of the amendment, and no more. The political motivation behind a given change must be propounded outside the voting booth.” Id. Opponent argues that the “medical malpractice” and “including those which could cause injury or death” language is superfluous, as the comments are not necessary to describe the amendment. As support for its argument, opponent cites to Evans. In Evans, this Court held that the editorial comment, “thus avoiding unnecessary costs,” in a summary judgment reform proposal violated the rules governing the ballot summary. See Evans, 457 So.2d at 1355. The Court noted in Evans that the “unnecessary costs” statement was “hotly contested” and “no logical explanation was given of how a constitutional summary judgment rule would be more effective in avoiding costs than is the existing summary judgment rule.” Id. Although the “medical malpractice” and “injury or death” comments may not be necessary to the summary, they do accurately describe the proposed amendment.

k- Misleading title and summary

Opponent argues that the statement that “[cjurrent Florida law restricts information available to patients related to investigations of adverse medical incidents” is misleading. It argues that while there is no open-ended constitutional right to the information, there are existing methods to obtain this information. For example, patients in litigation can obtain redacted records of relevant adverse incidents, and patients can obtain trend information on adverse medical incidents in the state from the Agency for Health Care Administration.

Additionally, opponent argues that the title “Patients’ Right to Know About Adverse Medical Incidents” suggests that patients currently have no right to “know about adverse medical incidents.” It asserts that, to the contrary, patients can receive information relating to their own incident.

Opponent’s arguments are without merit. The summary of the amendment states that Florida law “restricts” information concerning adverse medical incidents. This language is consistent with opponent’s own assertion that patients are entitled to receive information in only certain circumstances. By opponent’s own admission, access to this information is “restricted.” The amendment creates a broader right to know about adverse medical incidents than currently exists.

5. Inconsistent language in the title and summary

Opponent argues that the title and summary are inconsistent with the language of the actual amendment. The amendment states that the “identity of patients ... shall not be disclosed,” while the summary states that the amendment “provides that patients’ identitie [sic] should not be disclosed.” Opponent argues that while the term “shall” is, to most people, a mandatory instruction, the term “should” is more vague. Thus, reasonable voters could assume that the use of the term “should” means that nondisclosure is the ideal, but that under some circumstances patients’ identities may be available. We conducted an in-depth analysis of a similar inconsistent language issue in Advisory Op. to Att’y Gen. re Amendment to Bar Government from Treating People Differently Based on Race in Public Education, 778 So.2d at 897. The question in such a case is whether the discrepancy between the terms is material and misleading. Given the context in which “should” is used in the ballot summary, we do not believe the language will be misleading to voters.

V. CONCLUSION

For the reasons stated, we hold that the initiative petition and proposed ballot title and summary meet the legal requirements of article XI, section 3 of the Florida Constitution, and section 101.161(1), Florida Statutes (2003). Accordingly, we approve the amendment for placement on the ballot. We note, however, that no other issue is addressed here, and this opinion should not be construed as expressing either favor for or opposition to the proposed amendment. No motion for rehearing will be permitted.

It is so ordered.

PARIENTE, C.J., and WELLS, ANSTEAD, LEWIS, QUINCE, CANTERO, and BELL, JJ., concur.

      . The only brief filed in opposition to the amendment was filed by the Florida Dental Association. The sponsor of the amendment, Floridians for Patient Protection, filed a brief in support of the amendment.

      . Compare Save Our Everglades, 636 So.2d at 1340 (finding a single-subject violation where the amendment would have performed functions of each branch of government and created a virtual fourth branch of government) with Evans, 457 So.2d at 1354 (holding that the proposed amendment affected the function of both the legislative and the judicial branches of government, i.e., two provisions of the amendment limited a defendant’s liability, thus performing an essentially legislative function, while a third provision would have written the summary judgment rule into the constitution, thus affecting a function of the judiciary).