author: PER CURIAM.

text:
    Michele SULLIVAN v. STATE of Alabama.
    CR-04-1578.
    Court of Criminal Appeals of Alabama.
    March 24, 2006.

      William N. Clark, Birmingham, for appellant.
    Troy King, atty. gen., and Kristi L. Dea-son Hagood, asst. atty. gen., for appellee.
   PER CURIAM.

On April 20, 2005, the Jefferson District Court found Michele Sullivan in both direct and constructive criminal contempt of court for “wilfully and intentionally order[ing] the victim of a felony offense to leave the court.” (C. 2.) Sullivan was sentenced to five days in the county jail.

The record reflects the following. Sullivan, an attorney who had been practicing law for approximately one year, was appointed to represent Lakeeshia Westry against a robbery charge (“the Westry case”). A preliminary hearing was scheduled in the Westry case for the morning of April 20, 2005. The following facts were undisputed: that the victim of the alleged robbery, Robert Bradley, was asked to appear at the preliminary hearing; that Bradley had never met Sullivan or the deputy district attorney prosecuting the Westry case, Michael Streety, before that day; and that, shortly before the preliminary hearing was scheduled to begin, Bradley and Sullivan had a conversation in the hallway outside the courtroom, after which Bradley left the courthouse. It was this conversation that led to the district court’s convening a contempt hearing and ultimately finding Sullivan in contempt of court.

The contempt hearing was held within a very short time of the conversation between Sullivan and Bradley, and there is no indication in the record that Sullivan or her appointed defense counsel were given notice of the exact charge against her or of the purpose of the hearing until the hearing actually began. At the beginning of the contempt hearing, the district court stated that it had been informed that Bradley had come to the courthouse that morning and had been “advised that he should leave now or he would be in trouble” and had been given several of Sullivan’s business cards, and that it had appointed counsel to represent Sullivan in “a contempt of court case.” (R. 3.) Defense counsel then moved for a continuance of the hearing, stating that he had had only “approximately 10 minutes or so to discuss this situation” with Sullivan, and that he needed a continuance for “further preparation.” (R. 4.) The State did not dispute that Sullivan and her defense counsel had had only 10 minutes to prepare for the hearing; nevertheless, the district court denied the motion for a continuance on the grounds that the issue was not complex and that defense counsel was a “seasoned trial attorney.” (R. 5.) Deputy district attorney Michael Streety then called Bradley to testify. Defense counsel objected to Streety’s acting as the prosecutor in the case on the ground that Streety might be called as a witness. The court sustained the objection and instructed another deputy district attorney who was present in the courtroom to prosecute the case. At that point, defense counsel asked “for clarification of a point,” specifically, counsel asked “Are we here on a contempt proceeding?” (R. 7.) The district court answered in the affirmative, and defense counsel then asked “Are we talking a direct contempt or an indirect contempt?” (R. 7.) The district court answered “both.” (R. 7.)

Bradley testified that he was told to be in court on the morning of April 20, 2005, and that he arrived at the courthouse at approximately 9:45 a.m. Bradley said that he was about to ask someone at the clerk’s counter in what courtroom he was supposed to be when he saw Sullivan and approached her instead. Bradley said that he showed Sullivan a letter he had received from the district attorney’s office telling him to report to court and that Sullivan told him that she was the attorney “handling [the] case” and that he was not “supposed to be here.” (R. 17.) Bradley testified that Sullivan said, “Be best you leave or you’ll be in trouble. Leave right now and you won’t be in trouble.” (R. 11.) According to Bradley, Sullivan wrote Bradley’s name and address on a piece of paper, and gave him four of her business cards. Bradley testified that he then left the courthouse and went directly to his employer and told his employer about his conversation with Sullivan; that his employer then “called and talked to the judge” (R. 11); that the judge then told him to come back to the courthouse; and that he then returned to the courthouse.

On cross-examination, Sullivan’s counsel attempted to question Bradley regarding the robbery complaint he had lodged against Westry and the fact that only two months earlier Bradley had lodged a similar robbery complaint against Westry’s husband. Counsel argued that the line of questioning might be relevant to Bradley’s possible motive for not wanting to testify at the preliminary hearing. However, the district court sustained the State’s objection to that line of questioning and would not allow Sullivan’s counsel to pursue it.

On redirect examination, the prosecutor elicited the following facts from Bradley: that he had only a ninth-grade education; that he had been in a motorcycle accident in 1975 that caused hearing damage; and that he was receiving disability benefits as a result of the accident. On recross-examination, Sullivan’s counsel then questioned Bradley about his hearing loss as follows:

“[Sullivan’s counsel]: Not to get too personal, sir, but do you have any type of speech problem? Is that part of your disability or anything where you’re hard to understand sometimes?
“[Bradley]: That’s because my hearing is off.
“[Sullivan’s counsel]: Your hearing is off?
“[Bradley]: Yes, sir.
“[Sullivan’s counsel]: How bad is your hearing?
“[Bradley]: Well, you’ve got to be right up on me to hear you.
“[Sullivan’s counsel]: Right up on you to hear me?
“[Bradley]: Yes, sir.
“[Sullivan’s counsel]: Have you ever been given a percentage where your hearing is like 80, 90 percent?
“[Bradley]: Yeah.
“[Sullivan’s counsel]: Are you deaf?
“[Bradley]: If I’m far away — no, I’m not deaf. If I get far away I can barely hear you.
“[Sullivan’s counsel]: Right.
“[Bradley]: I can hear the sound if you’re talking right at me. Hear you clearly.”

(R. 26.)

Deputy district attorney Streety testified that a preliminary hearing was scheduled in the Westry case for April 20, 2005; that he had mailed a letter to Bradley telling him to be in court that day; and that he had followed up the letter with a telephone call and had spoken to Bradley’s sister and had asked her to tell Bradley to be in court the morning of April 20, 2005. Streety testified that he did not see Bradley that morning, but that Sullivan arrived in the courthouse between 9:50 and 9:55 a.m. Streety said that he did not discuss the case with Sullivan, other than to provide her with a written offer and a copy of the offense report; that Sullivan did not mention to him that she had spoken with Bradley; and that Sullivan did not request a dismissal of the charge against her client on the ground that Bradley was not present to testify at the preliminary hearing. Streety testified that he was in the courtroom for the preliminary hearing when he received a telephone call in the courtroom from Bradley’s employer and learned that Bradley had left the courthouse; he told Bradley that he needed to come back to the courthouse, and Bradley returned to the courthouse. It appears from the record that the preliminary hearing in the Westry case was not conducted, but that the contempt hearing was convened instead. Streety said that he had worked professionally with Sullivan for about a year and that they had had one disagreement, but that he had formed no opinion of her.

Following Streety’s testimony, Sullivan indicated that she wanted to testify on her own behalf; her counsel then requested a moment to speak with Sullivan. After a short pause in the proceedings, the following exchange occurred:

“THE COURT: You’re recommending your client not to testify and you’ve conveyed that to her; is that correct, [defense counsel]?
“[Sullivan’s counsel]: In the short period of time that I have had to discuss this.
“THE COURT: And you do this as the respected attorney that you are?
“[Sullivan’s counsel]: Right.
“THE COURT: Ms. Sullivan, is it your desire to testify?
“[Sullivan]: Your Honor, I’m going to follow my lawyer’s advice.
“THE COURT: All right. That is fine. Anything else for the defense?
“[Sullivan’s counsel]: Other than an argument. Let me talk to her just a minute.
“(Short pause.)
“THE COURT: Ms. Sullivan, it’s your desire to testify. Come around.”

(R. 33-34.) Sullivan then took the stand and testified on her own behalf.

Sullivan testified that she came to the courthouse the morning of April 20, 2005, for a preliminary hearing in the Westry case; that she received discovery in the case from the deputy district attorney; and that as she was about to walk into the courtroom from the hallway, Bradley approached her and grabbed her arm. Sullivan said that Bradley did not grab her arm violently, but that it appeared that he was nervous and that “there was something wrong with him” because she could not understand him very well. (R. 40.) Sullivan testified that she did not know who Bradley was until he showed her a letter from the district attorney’s office. Sullivan denied telling Bradley to leave the courthouse; denied telling Bradley that he would get in trouble if he stayed; and denied threatening Bradley. Rather, Sullivan said, she identified herself as the defense attorney in the case and told Bradley that he needed to speak with Michael Streety, the deputy district attorney handling the case. Sullivan testified that Bradley asked her who Michael Streety was and that she pointed through the glass door to the courtroom and identified Streety for Bradley. Sullivan said that Bradley told her the person she had pointed to was “the judge” and that she reiterated to Bradley that the person was the district attorney. (R. 42.) Sullivan stated that she told Bradley that he was “supposed to be here” for a preliminary hearing and that she told Bradley which courtroom he was supposed to be in. (R. 38.) Sullivan also stated that when she realized that Bradley was the alleged victim in her case, she asked Bradley if she could write down his address so that she could subpoena him; that Bradley asked her if “he need[ed] to talk to” her; that she told Bradley that “right now I don’t need to talk to you”; and that she then gave Bradley her business cards and told him that he could telephone her and talk to her about the case if he wanted to. (R. 43.) Sullivan said that she was in a hurry when she was talking to Bradley because she had a meeting with another attorney and wanted to waive the preliminary hearing in the Wes-try case as quickly as possible and that she just grabbed her business cards and gave them to him. Sullivan testified that after her conversation with Bradley, she walked into the courtroom, where her client was waiting for her; that she thought that Bradley was following her into the courtroom; and that that was “the last [she] saw” of Bradley. (R. 40.) Sullivan described Bradley as “very confused” during their conversation (R. 42), and when asked whether Bradley was lying regarding his version of their conversation, Sullivan said:

<cWell, I noticed something was wrong with the guy. I’m not going to sit here and call the man a liar. I mean, he’s mistaken on what happened, occurred in our conversation in the two minutes that we stood out there and talked to each other.”

(R. 41.)

Immediately following Sullivan’s testimony, the district court removed Sullivan as the attorney of record in the Westry case and found Sullivan in contempt of court, stating, in pertinent part:

“I further find that the victim was ordered to this Court and told to come through several communications and did appear here.
“Ms. Sullivan, it is my feeling that you wilfully and intentionally advised this victim of a felony to leave this courtroom. It does not make any sense for somebody who is not a participant in here to say these things. I’m going to tell you this: I have been here 30 years. We’re in Birmingham, Alabama. For a physically semi-retired [sic] black man to come up and grab a white woman’s arm in the courthouse, I’ve never seen it or heard it. It’s not a fantasy. It’s an untruth. I think you have wilfully played games with this Court.
“And the first moment I had the information is when Mr. Streety said, Judge, I have an emergency. I thought maybe it was his family. And he told me. And I said to tell the people to come in. This can’t happen. Attorneys are going to have to fight each other in the courtroom within the parameters. You’re not bad. You’ve beaten a couple of the [district attorneys] at their own game. In the courtroom. But there seems to be a cloud. . Now the cloud is before me. You’re not just a run-of-the-mill citizen. You’re a practitioner in here. You’re held to a little higher degree, a lot higher degree when it comes to that. I don’t mind an attorney trying to get ahold of witnesses and if the witnesses won’t talk to them, telling the Judge and putting the witness on the stand and taping it. But I tend to believe this guy. We can’t have that.
“I’m going to find you in contempt of my Court for what you did today. It’s not like you’ve mouthed off to me and you’re a civilian. You know better. I’m giving you five days to serve in the Jefferson county jail.. I’m ordering a copy of this being made. And if the district attorney decides, to send’ it to the [state] bar association. This has got to be sending a message to you and to anybody else because it’s really not heard of. When it is, it becomes a cancer on the whole system. So, you’re in the custody of my bailiff to serve five days.”

(R. 44-47.)

Following this contempt finding, Sullivan’s counsel asked whether the district court was finding Sullivan in direct or constructive contempt, and the court responded that it was finding Sullivan in both direct and constructive contempt. When the court then remanded Sullivan to the custody of the sheriff, Sullivan’s counsel moved to stay the imposition of the sentence on the ground that Sullivan was the sole custodian of her five-year-old child and that she needed time to make arrangements for the care of her child. Counsel stated that Sullivan would surrender at a later date after she had had time to make arrangements for her child. Counsel also gave oral notice of appeal and moved for an appeal bond. The district court denied both motions and stated that it was not sure whether a contempt proceeding was a bondable proceeding. Sullivan’s counsel argued that a constructive-contempt proceeding is bondable and then argued that there was insufficient evidence to warrant a finding of direct contempt because “[n]o actions occurred in this courtroom.” (R. 48-49.) Counsel also attempted to argue that there was no evidence that- any court order had been issued for Bradley’s appearance at the preliminary hearing and, thus, that the court’s statement that Bradley had been ordered to appear was incorrect; however, the district court interrupted Sullivan’s counsel, stating that “[tjhere was a subpoena issued” and that “[a] higher court will have to tell me that I’m wrong.” (R. 49.) Sullivan was immediately taken into custody following the contempt hearing, but the district court released Sullivan from custody later that same day, upon a joint motion of the parties, finding that Sullivan had “purged” herself of the contempt by agreeing to seek counseling. (C. 3.)

Sullivan makes three arguments on appeal. Two of those arguments require that we reverse the district court’s finding of both direct and constructive contempt. Therefore, we address only those two arguments.

I.

Sullivan contends, and the State concedes, that the evidence was insufficient to support the district court’s finding of direct criminal contempt. Direct contempt is defined as

“disorderly or insolent behavior or other misconduct committed in open court, in the presence of the judge, that disturbs the court’s business, where all of the essential elements of the misconduct occur in the presence of the court and are actually observed by the court, and where immediate action is essential to prevent diminution of the court’s dignity and authority before the public.”

Rule 33.1(b)(1), Ala.R.Crim.P. (emphasis added). It is undisputed that none of the conduct giving rise to the contempt finding occurred in the presence of the district court judge who found Sullivan in contempt. Therefore, there was insufficient evidence of direct contempt, and the district court’s finding’ in that regard was error and must be reversed.

II.

Sullivan also contends that she was denied her due-process right to a reasonable time to prepare her defense and that the district court erred in denying her motion for a continuance of the hearing.

Initially, we note that the State argues on appeal that Sullivan’s due-process argument was not properly preserved for review because, it says, although Sullivan moved for a continuance, she did not specifically argue to the district court that she was denied due process. As noted above, Sullivan’s counsel moved for a continuance of the contempt proceeding on the ground that he had had only “approximately 10 minutes or so to discuss this situation” with Sullivan and needed additional time for “further preparation.” (R. 4.) It is well settled that one of the due-process protections afforded contemnors in constructive-contempt proceedings is the right to a reasonable time to prepare for the contempt hearing. See Rule 33.3, Ala. R.Crim.P. See also Cooke v. United States, 267 U.S. 517, 45 S.Ct. 390, 69 L.Ed. 767 (1925), and Hunter v. State, 251 Ala. 11, 37 So.2d 276 (1948). It is equally well settled that trial judges are presumed to know the law. See, e.g., Maples v. State, 758 So.2d 1, 50 (Ala.Crim.App.) (“[T]rial judges are presumed to know the law and to follow it.”), aff'd, 758 So.2d 81 (Ala.1999). Sullivan’s motion was sufficient to put the district court on notice that due process was at issue, despite the fact that Sullivan’s counsel did not specifically use the words “due process.” Therefore, this issue was properly preserved for review.

Rule 33.3, Ala.R.Crim.P., governs the procedure for constructive-contempt proceedings, and sets out the due-process protections afforded to contemnors. Rule 33.3(d), Ala.R.Crim.P., specifically provides:

“(d) Hearing. The hearing shall be set so as to allow a reasonable time for the preparation of the defense. The con-temnor shall be afforded the opportunity to present exculpatory evidence and evidence of mitigating and extenuating circumstances, shall be entitled to subpoena witnesses on his or her behalf, and shall be entitled to be represented by counsel as provided in Rule 6.”

“It is well settled that the disposition of a motion for a continuance is vested in the sound discretion of the trial court and that its ruling will not be disturbed on appeal, except upon a clear showing of abuse of discretion.” Ex parte H.P.W., 628 So.2d 514, 517 (Ala.1993). “Generally, the granting or denying of a motion for continuance on the ground that counsel had insufficient time to prepare for trial rests within the sound discretion of the trial judge, and his discretion will not be reviewed except in cases of gross abuse of discretion.” Brown v. State, 395 So.2d 121, 122 (Ala.Crim.App.1980). As this Court explained in Loggins v. State, 771 So.2d 1070 (Ala.Crim.App.1999), aff'd, 771 So.2d 1093 (Ala.2000):

“The trial court has broad discretion in granting a continuance when the basis for the motion is that counsel has not had sufficient time to prepare or to develop his defense. Godfrey v. State, 383 So.2d 575, 577 (Ala.Cr.App.), cert. denied, 383 So.2d 579 (Ala.), cert. denied, 449 U.S. 903, 101 S.Ct. 276, 66 L.Ed.2d 134 (1980), citing Smith v. State, 282 Ala. 268, 210 So.2d 826 (1968). ‘A motion for a continuance due to a lack of time for adequate preparation is a matter entirely and exclusively within the sound discretion of the trial court and its ruling will not be reversed on appeal absent a ... showing of abuse.’ Reynolds v. State, 539 So.2d 428, 429 (Ala.Cr.App.1988), cert. denied, 539 So.2d 428 ([Ala.] 1988). Moreover, ‘[t]he reversal of a conviction because of the refusal of the trial judge to grant a continuance requires “a positive demonstration of abuse of judicial discretion.” Clayton v. State, 45 Ala.App. 127, 129, 226 So.2d 671, 672 (1969).’ Beauregard v. State, 372 So.2d 37, 43 (Ala.Cr.App.), writ denied, 372 So.2d 44 (Ala.1979) (emphasis added [in Loggins ]).”

771 So.2d at 1084. “As a general rule, continuances are not favored,” In re R.F., 656 So.2d 1237, 1238 (Ala.Civ.App.1995), and “[o]nly rarely will [an] appellate court find an abuse of discretion” in the denial of a motion for a continuance. Latimer v. Enterprise Hosp., 505 So.2d 375, 376 (Ala.1987).

However, a trial court’s discretion in granting or denying a motion for a continuance is not unbridled. See Ex parte Jacobs, 636 So.2d 410, 411 (Ala.1994) (“Although whether to grant or deny a continuance is within the discretion of the trial court, that discretion is not without limitations.”). There are circumstances in which the denial of a motion for a continuance may constitute an abuse of discretion. See Ex parte Jacobs, supra (denial of continuance in divorce action where wife was unable to afford airfare from Germany to attend hearing was an abuse of discretion); Latimer, supra (denial of continuance in medical-malpractice action to allow discovery of medical records before summary judgment was entered was an abuse of discretion); Knox v. State, 834 So.2d 126 (Ala.Crim.App.2002) (denial of continuance of robbery trial to allow for court-ordered mental evaluation when appointment for evaluation had been missed as a result of the sheriffs department was an abuse of discretion); Glass v. State, 557 So.2d 845 (Ala.Crim.App.1990) (denial of continuance of attempted-possession-of-controlled-substances trial to secure defense witnesses who had only been discovered the day of trial as a result of one witness’s change of testimony was an abuse of discretion); Payne v. State Department of Human Resources, 532 So.2d 1263 (Ala.Civ.App.1988) (denial of continuance of hearing on child-in-need-of-supervision petition where guardian ad litem was appointed only three days before hearing and had only 45 minutes to review documents State introduced at the hearing was an abuse of discretion); Brown, supra (denial of continuance of possession-of-marijuana trial to allow counsel, who had been appointed the day of trial, time to prepare was an abuse of discretion); and Marler v. State, 382 So.2d 644 (Ala.Crim.App.1980) (denial of continuance of assault-with-intent-to-murder trial to allow counsel, who had been appointed after jury selection, time to prepare was an abuse of discretion). In Ungar v. Sarafite, 376 U.S. 575, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964), the United States Supreme Court stated:

“The matter of continuance is traditionally within the discretion of the trial judge, and it is not every denial of a request for more time that violates due process even if the party fails to offer evidence or is compelled to defend without counsel. Avery v. Alabama, 308 U.S. 444 [(1940)]. Contrariwise, a myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend with counsel an empty formality. Chandler v. Fretag, 348 U.S. 3 [(1954)]. There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied. Nilva v. United States, 352 U.S. 385 [(1957)]; Torres v. United States, 270 F.2d 252 (C.A. 9th Cir.); cf. United States v. Arlen, 252 F.2d 491 (C.A.2d Cir.).”

376 U.S. at 589-90, 84 S.Ct. 841.

Under the circumstances in this case, Sullivan did not have a reasonable time to prepare her defense. Sullivan had only 10 minutes to discuss the situation with her counsel before the hearing began, and there is no indication in the record that Sullivan had notice of the specific charge against her before the hearing began. Indeed, Sullivan’s counsel had to ask the court at the beginning of the hearing if the hearing was for a contempt charge, and if so, whether Sullivan was being charged with direct or constructive contempt. See, e.g., Charles Mfg. Co. v. United Furniture Workers, 361 So.2d 1033 (Ala.1978) (denial of continuance in constructive-contempt proceeding where contemnors did not know nature of the charges until the beginning of the hearing was an abuse of discretion).

The district court denied the request for a continuance because the issue was not complex, and appointed defense counsel was a seasoned trial attorney. We agree that the issue was not complex, and the record reflects that counsel did an admirable job under the circumstances. However, the entire case came down to credibility — the district court resolved the credibility choice adversely to Sullivan, which is entirely within its discretion, stating that it believed Bradley’s version of the events and that it believed that Bradley had no reason to lie — and it is clear that counsel did not have sufficient time to prepare a defense or to subpoena witnesses.

Counsel attempted to cross-examine Bradley about the robbery charge in an attempt to elicit a possible motive for Bradley’s not wanting to testify at the preliminary hearing in the Westry case. However, the district court sustained the State’s objection. Had counsel had adequate time to prepare, he may have been able to establish the relevancy of this line of questioning or, at most, uncover a possible motive on the part of Bradley. Counsel also questioned Bradley about his hearing loss. However, he did so only on recross-examination, after the prosecutor had elicited the information on redirect examination, thus indicating that counsel did not know about the hearing loss until the prosecutor brought it up. The issue of Bradley’s hearing loss appears to be particularly important given the similarities between Bradley’s version of the conversation and Sullivan’s version of the conversation, including the fact that Bradley testified that Sullivan had told him that he was not “supposed to be here” (R. 17), and Sullivan testified that she told Bradley that he was “supposed to be here.” (R. 38.) Had counsel had adequate time to prepare, further information regarding Bradley’s hearing loss may have been obtained.

In addition, counsel had no time to subpoena, or even speak with, possible witnesses. Bradley testified that after his conversation with Sullivan, he went directly to his employer and informed him about what had happened. Deputy district attorney Streety testified that he had received a telephone call from Bradley’s employer; however, he did not state the specifics of that conversation. Thus, the only testimony regarding what exactly Bradley told his employer came from Bradley himself. Had counsel had adequate time to prepare, counsel could have spoken with Bradley’s employer and perhaps uncovered inconsistencies between Bradley’s testimony and the statements he made to his employer that could have been used for impeachment purposes. Given that the entire case came down to credibility, had counsel had adequate time to prepare, counsel may have also been able to contact and subpoena character witnesses on Sullivan’s behalf. And we are unpersuaded by the State’s argument in its brief that Sullivan and Bradley were the “only witnesses to the contemptuous event.” (State’s brief at p. 11.) The record reflects that, although Sullivan and Bradley were the only participants in the conversation, the conversation occurred in the hallway of the courthouse, and may have occurred in close proximity to the clerk’s counter. There is no indication in the record that other people did not witness the conversation or possibly overhear parts of the conversation. Had counsel had adequate time to prepare, perhaps witnesses who overheard some or all of the conversation could have been interviewed and/or subpoenaed to testify.

Finally, at the conclusion of the State’s case, Sullivan indicated that she wanted to testify on her own behalf, but counsel indicated that he had advised Sullivan not to testify, and again pointed out the little time he had had to prepare for the hearing. After a short discussion with Sullivan, Sullivan indicated she did not want to testify. After another short discussion, Sullivan then took the stand. The confusion between Sullivan and her counsel regarding her testifying again shows the lack of any meaningful preparation time.

Even the most seasoned trial attorney cannot be expected to mount a defense to an unspecified charge in 10 minutes time. Although, as noted, trial courts have broad discretion in determining whether to grant or deny a continuance, under the particular circumstances in this case, where Sullivan had only 10 minutes to consult with counsel before the contempt hearing and was not given notice of the specific charge against her until the contempt hearing began, we conclude that Sullivan was denied her due-process right to a reasonable time to prepare a defense, to present extenuating and/or mitigating circumstances, and to subpoena witnesses pursuant to Rule 33.3(d). Therefore, the district court erred in denying Sullivan’s motion for a continuance; its judgment must be reversed and this cause remanded for a new contempt proceeding. On remand, the district court should be mindful of the requirements set out in Rule 33.3(a) and (b) for initiating a constructive-contempt proceeding.

Based on the foregoing, the judgment of the district court is reversed and this, cause remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

McMILLAN, P.J., and COBB, BASCHAB, and WISE, JJ., concur.

SHAW, J., recuses himself.

      . Although the district court did not specifically state on the record or in its written order whether it was finding Sullivan in criminal contempt or civil contempt, based on the nature of the charge and the purpose of the punishment, it is clear that its finding was one of criminal contempt. See Rule 33.1, Ala.R.Crim.P., and the committee comments thereto, explaining the distinction between criminal contempt and civil contempt.

      . The record reflects that a subpoena was issued for Bradley. However, the record is ambiguous as to whether Bradley was ever actually served with the subpoena, and the parties dispute that fact.

      . Counsel also objected to the court's statement regarding the facts of the case without counsel's having been given the opportunity to invoke “the rule" and have Bradley leave the courtroom. (R. 4.) The district court overruled the objection, stating that it had already “spoken to this witness in preparation for his testimony.” (R. 5.)

      . Sullivan’s counsel was correct. A constructive-contempt proceeding is bondable. See Rule 33.3(f), Ala.R.Crim.P.

      . Although neither party makes this argument on appeal, we note that because the contempt was criminal, the district court erred in allowing Sullivan to purge herself of the contempt by agreeing to seek counseling. See, e.g., Hill v. Hill, 637 So.2d 1368, 1370 (Ala.Civ.App.1994) ("In order to purge himself in a criminal contempt case, the contemnor must pay the fine imposed, serve the authorized time, or do both.”), and Kalupa v. Kalupa, 527 So.2d 1313, 1317 (Ala.Civ.App.1988) ("The only way a contemnor found guilty of criminal contempt can purge himself is to pay the statutory fine or serve the authorized time in the county jail or do both.”).


source: Caselaw Access Project

license: Public Domain

text:
    Ex parte Michael Harrison HOWARD. (In re State of Alabama v. Michael Harrison Howard).
    CR-05-0624.
    Court of Criminal Appeals of Alabama.
    March 24, 2006.

      Frank P. Ralph, Troy; and Charles N. Reese, Daleville, for petitioner.
    Troy King, atty. gen., and Beth Slate Poe, asst atty. gen., for respondent.
   PER CURIAM.

The petitioner, Michael Harrison Howard, filed this petition for a writ of prohibition directing Judge Jerry White, serving as a circuit judge for Pike County, to transfer his case to the juvenile court for disposition. In June 2005, Howard was indicted by a Pike County grand jury for two counts of criminally negligent homicide, a violation of § 13A-6-4(c), Ala.Code 1975. Howard was 17 years old at the time of the alleged offense. Howard filed a motion to transfer his case to the juvenile court because, he argued, criminally negligent homicide is a misdemeanor, over which the juvenile court would have jurisdiction, and the fact that the accident resulting in the girls’ death occurred while he was under the influence was pertinent only to the range of sentence; it did not elevate the offenses to felonies. Judge White denied the motion to transfer; this petition for the writ of prohibition followed.

The Alabama Supreme Court in Ex parte Maye, 799 So.2d 944, 947 (Ala.2001), stated the following concerning a petition for a writ of prohibition:

“ ‘ “A writ of prohibition is an extraordinary writ which is to be employed with extreme caution and used only in cases of extreme necessity. Ex parte State Dep’t of Mental Health & Mental Retardation, 536 So.2d 78 (Ala.Civ.App.1988); see also Ex parte Perry County Board of Education, 278 Ala. 646, 180 So.2d 246 (1965). Prohibition is not a favored writ and will not issue unless there is no other adequate remedy. Ex parte Strickland, 401 So.2d 33 (Ala.1981); Barber Pure Milk Co. of Montgomery, Inc. v. Alabama State Milk Control Board, 274 Ala. 563, 150 So.2d 693 (1963); Ex parte Burch, 236 Ala. 662, 184 So. 694 (1938). The petition for the writ ‘properly tests jurisdiction, and lies when a court acts in excess of its jurisdiction.’ Ex parte City of Tuskegee, 447 So.2d 713, 716 (Ala.1984). The writ is preventive rather than corrective and is utilized to prevent the usurpation of excessive jurisdiction by a judicial tribunal. Ball v. Jones, 272 Ala. 305, 132 So.2d 120 (1961); see also Mental Health, supra. Issuance of a writ of prohibition lies within the discretion of the court, and the writ is granted or withheld according to the nature and circumstances of the case, not as a matter of right. Barber, supra; Dear v. Peek, 261 Ala. 137, 73 So.2d 358 (1954). ‘Prohibition is the proper remedy to intercept and put an end to usurpation of jurisdiction.’ Ex parte State ex rel. Bragg, 240 Ala. 80, 85, 197 So. 32, 36 (1940).”’
“Ex parte Moody, 681 So.2d 276, 276-77 (Ala.Crim.App.1996), quoting Ex parte Shoemaker, 644 So.2d 958, 959 (Ala.Civ.App.1993), rev’d, 644 So.2d 961 (Ala.), on remand, 644 So.2d 966 (Ala.Civ.App.1994).”

Howard argues that Judge White usurped his jurisdiction when he denied the motion to transfer the ease to the juvenile court because Howard had been indicted for a misdemeanor, not a felony, and, according to § 12-15-34.1, Ala.Code 1975, he is subject to the jurisdiction of the juvenile court. He cites Crauswell v. State, 638 So.2d 11 (Ala.Crim.App.1993), for the proposition that this Court has held that subsection (c) of § 13A-6-4, Ala.Code 1975, is a sentence-enhancement provision and does not state a substantive offense.

Section 12-15-34.1, Ala.Code 1975, states, in pertinent part:

“(a) Notwithstanding any other provision of law, any person who has attained the age of 16 years at the time of the conduct charged and who is charged with the commission of any act or conduct, which if committed by an adult would constitute any of the following, shall not be subject to the jurisdiction of juvenile court but shall be charged, arrested, and tried as an adult:
“(4) A felony which has as an element thereof the causing of death or serious physical injury.”

Section 13A-6-4, Ala.Code 1975, defines the offense of criminally negligent homicide as follows:

“(a) A person commits the crime of criminally negligent homicide if he causes the death of another person by criminal negligence.
“(b) The jury may consider statutes and ordinances regulating the actor’s conduct in determination whether he is culpably negligent under subsection (a) of this section.
“(c) Criminally negligent homicide is a Class A misdemeanor, except in cases in which said criminally negligent homicide is caused by the driver of a motor vehicle who is driving in violation of the provisions of Section 32-5A-191 [driving under the influence]; in such cases criminally negligent homicide is a Class Cfelony.”

(Emphasis added.)

In Crauswell, this Court considered whether the trial court had erred in sentencing Crauswell as a Class C felon under § 13A-6-4(c), when the jury had made no specific finding that Crauswell was driving under the influence at the time of the accident, in which the driver of another vehicle was killed. After holding that the issue had not been preserved for appellate review, this Court, in dicta, stated:

“Furthermore, we hold that whether criminally negligent homicide is a Class A misdemeanor or a Class C felony under § 13A-6-4(c) is a matter of sentence enhancement, which does not involve a question for the jury. This conclusion is based upon Ex parte Guess, 507 So.2d 551, 552 (Ala.1987), affirming Guess v. State, 507 So.2d 546 (Ala.Cr.App.1986), wherein the Alabama Supreme Court declared that this Court correctly held that the firearm enhancement statute did not violate a defendant’s Sixth Amendment right to trial by jury, even though it permitted the judge rather than the jury to decide whether the defendant had used a firearm in the commission of a felony, because the statute did not create a separate offense but merely limited the sentencing court’s discretion by setting the minimum sentence in the event that a firearm is used in the commission of a felony.”

638 So.2d at 15-16.

Several months after we released Crauswell, we released Potter v. State, 661 So.2d 255 (Ala.Crim.App.1993), rev’d on other grounds, 661 So.2d 260 (Ala.1994). In Potter we considered whether § 13A-6-4(c) was a separate sentencing-enhancement provision that precluded Potter’s being sentenced under the Habitual Felony Offender Act (“HFOA”). We stated:

“The appellant cites Ex parte Chambers, 522 So.2d 313 (Ala.1987) as authority for his argument that § 13A-6-4, Code of Alabama 1975 contains its own sentence enhancement provision. In Ex parte Chambers, the Alabama Supreme Court held that the appellant, a repeat drug offender, who was sentenced pursuant to the Uniform Controlled Substances Act, § 20-2-1 et seq., was not subject to sentencing under the Habitual Felony Offender Act. The Court’s reasoning was that the Uniform Controlled Substances Act contained its own sentencing provisions which were outside the scope of the Criminal Code. Id. at 315-16. The Court stated, ‘Because the sentences applicable to drug offenses and repeat drug offenses are provided within the Controlled Substances Act, we hold that defendants convicted thereunder must be sentenced according to its provisions, not the sentencing provisions of Title 13A.’ Id. at 316 (footnote omitted).
“In this case, however, the appellant was convicted and sentenced under the Criminal Code. The appellant was found guilty of violating § 13A-6-4, rather than an offense outside the scope of Title 13A such as the defendant in Ex parte Chambers. Moreover, driving under the influence is an element of the class C felony offense of criminally negligent homicide. Section 13A-6-4 does not enhance the appellant’s punishment based upon his prior felony convictions. Therefore, the appellant’s argument fails and we uphold the trial court’s sentence under the Habitual Felony Offender Act.”

661 So.2d at 259 (second emphasis added). Our decision in Potter was reversed on other grounds by the Alabama Supreme Court. See Ex parte Potter, 661 So.2d 260 (Ala.1994).

More recently, in Johnson v. State, 922 So.2d 137 (Ala.Crim.App.2005), this Court held that it was a violation of the Double Jeopardy Clause to convict Johnson of both the offense of driving under the influence of alcohol and the offense of criminally negligent homicide. We concluded that based on the facts of.the case, driving under the influence was included in the offense of criminally negligent homicide. In reaching this conclusion, we stated:

“[I]n determining whether one offense is included in another, the trend of recent Alabama decisions is to focus on the statutory elements of the offenses and the factual allegations actually included in the indictment, rather than on the evidence or factual basis the State presents at trial or during the guilty-plea colloquy. See Ex parte Cole, 842 So.2d 605 (Ala.2002); Wright v. State, 902 So.2d 720 (Ala.Crim.App.), aff'd, 902 So.2d 738 (Ala.2004); Childers v. State, 899 So.2d 1023 (Ala.Crim.App.2003), writ quashed, 899 So.2d 1025 (Ala.2004); Bradley v. State, 925 So.2d 221 (Ala.Crim.App.2004); and Toliver v. State, 881 So.2d 1070 (Ala.Crim.App.2003).”

922 So.2d at 141.

The provision making criminally negligent homicide a Class C felony if the homicide is caused by a driver who is driving under the influence was added by an amendment in 1988. Act No. 88-916, Ala. Acts 1988. In describing the purpose of the amendment in the title of the Act, the legislature stated that the change was “[t]o amend section 13A-6-4, Code of Alabama 1975, to provide that criminally negligent homicide is a Class C felony.” The legislature intended to create an offense that was subject to a harsher penalty if the homicide was committed while the defendant was under the influence.

It appears that this Court’s dicta in Crauswell stating that whether criminally negligent homicide was a Class A misdemeanor or a Class C felony is a matter of sentence enhancement was an aberration. The wording of the 1988 amendment to § 13A-6-4(c), Ala.Code 1975, is clear. It provides:

“Criminally negligent homicide is a Class A misdemeanor, except in cases in which said criminally negligent homicide is caused by the driver of a motor vehicle who is driving in violation of provisions of Section 32-5A-191 [driving under , the influence]; in such cases criminally negligent homicide is a Class C felony.”

(Emphasis added.)

Section 13A-6-4(c), Ala.Code 1975, is not a sentencing-enhancement provision, but a provision that states a substantive offense that requires proof that the homicide occurred while the defendant was under the influence. Driving under the influence is an element of the offense that must be charged in the indictment, as it was in this case, and proven to the jury beyond a reasonable doubt.

Judge White did not err in denying Howard’s motion to transfer the case to the juvenile court. Howard was over the age of 16 at the time of the alleged offense and is charged with a felony, not, as he argues, a misdemeanor. Therefore, according to § 12-15-34.1, Ala.Code 1975, Howard must be charged, arrested, and' tried as an adult.

For the foregoing reasons, this petition is due to be, and is hereby, denied.

PETITION DENIED.

McMILLAN, P.J., and COBB, BASCHAB, SHAW, and WISE, JJ„ concur.

      . After the three circuit judges in Pike County recused themselves from hearing Howard’s case, the Chief Justice of the Alabama Supreme Court appointed retired Judge Jerry White, a circuit judge, to preside over the case.

      . Howard is charged with driving a motor vehicle while under the influence and causing the death of two young girls when the vehicle he was driving hit a utility pole.

      . We further question the continued validity of the dicta in Crauswell given the United States Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), which held that any fact that increases a sentence above the statutory range must be presented to a jury and proven beyond a reasonable doubt.


text:
    In re AMENDMENTS TO THE FLORIDA RULES OF JUVENILE PROCEDURE (THREE YEAR CYCLE).
    No. SC06-140.
    Supreme Court of Florida.
    Sept. 21, 2006.
    Mary Katherine Wimsett, Chair, Gaines-ville, Florida, Alan Abramowitz, Past-Chair, Orlando, Florida, Juvenile Court Rules Committee, John F. Harkness, Jr., Executive Director, The Florida Bar, Tallahassee, for Petitioner.
    Honorable Robert J. Jones, General Magistrate, Eleventh Judicial Circuit, Miami, Florida; Joyce Sibson Dove, Esquire, James V. Cook, Esquire, George Drumming, Esquire, Susan Barber, Esquire, Janet Schaffer, Esquire, Catherine Healey, Esquire, and Anne Marie Highsmith, Esquire, Members of the Parents Bar, Dependency Court, Second Judicial Circuit, Tallahassee, Florida; Honorable Scott M. Kenney, Circuit Judge, Nineteenth Judicial Circuit, Fort Pierce, Florida; Honorable George S. Reynolds, III, Circuit Judge, Second Judicial Circuit, Quincy, Florida, Honorable Nikki Ann Clark, Circuit Judge, Second Judicial Circuit, Honorable Thomas H. Bateman, Circuit Judge, Second Judicial Circuit, Honorable Jonathan Sjostrom, Circuit Judge, Second Judicial Circuit, Honorable Janet E. Ferris, Circuit Judge, Second Judicial Circuit, Honorable P. Kevin Davey, Circuit Judge, Second Judicial Circuit, Honorable Kathleen Dekker, Circuit Judge, Second Judicial Circuit, Honorable John E. Crusoe, Circuit Judge, Second Judicial Circuit, Honorable James C. Hankinson, Circuit Judge, Second Judicial Circuit, Honorable John C. Cooper, Circuit Judge, Second Judicial Circuit, Honorable Angela C. Dempsey, Circuit Judge, Second Judicial Circuit, and Honorable Terry P. Lewis, Circuit Judge, Second Judicial Circuit, Tallahassee, Florida; Honorable Thomas W. Lager, Magistrate, Second Judicial Circuit, Tallahassee, Florida; Beth Englander, Director, Office of Family Safety, Department of Children and Families; and Dennis Moore, General Counsel, Statewide Guardian ad Litem Office, Tallahassee, Opponents, responding with comments.
   PER CURIAM.

The Juvenile Court Rules Committee (Committee) petitions this Court to consider amendments to the Florida Rules of Juvenile Procedure. We have jurisdiction. See art. V, § 2(a), Fla. Const.; Fla. R. Jud. Admin. 2.130(c)(4).

BACKGROUND

The Committee, in its regular-cycle report, proposes amendments to Florida Rules of Juvenile Procedure 8.045 (Notice to Appear); 8.090 (Speedy Trial); 8.135 (Correction of Disposition or Commitment Orders); 8.210 (Parties and Participants); 8.257 (General Magistrates); 8.350 (Placement of Child Into Residential Treatment Center After Adjudication of Dependency); 8.515 (Providing Counsel to Parties); and 8.535 (Postdisposition Hearings) and forms 8.911 (Uniform Child Custody Jurisdiction and Enforcement Act Affidavit); 8.930 (Juvenile Notice to Appear); 8.964 (Dependency Petition); 8.966 (Adjudication Order-Dependency); 8.980 (Petition for Termination of Parental Rights Based on Voluntary Relinquishment); 8.981 (Petition for Involuntary Termination of Parental Rights); 8.983 (Adjudication Order and Judgment of Involuntary Termination of Parental Rights); and the adoption of new form 8.975 (Dependency Order Withholding Adjudication).

Prior to filing its report with the Court, the Committee published the proposed amendments in The Florida Bar News. It received one comment. After the Committee filed its report with the Court, the proposed amendments were again published in The Florida Bar News. The Court received seven comments. One of the seven was by the same eommenter who responded to the first publication and raised the same issues as his comment to the Committee.

The Committee filed a response to the comments, reiterating its adherence to its original recommendations. According to the response, the Committee considered many of the issues raised by the comments during its deliberative process, but concluded the proposed amendments were needed.

After considering the comments and holding oral argument, we adopt most of the Committee’s proposed amendments without change, adopt a few with minor modifications, and adopt the new form as proposed, as discussed below.

DISCUSSION

The great majority of the amendments proposed by the Committee received no comment. We adopt without change the proposed amendments to rules 8.045, 8.135, 8.210, 8.257, 8.350, 8.515, and 8.535 and forms 8.911, 8.930, 8.964, 8.966, 8.980, 8.981, 8.983. We also adopt without change the proposed new form 8.975.

We adopt the proposed amendment to rule 8.090 (Speedy Trial) with minor modification. The Committee proposed amending subdivision (a)(2) of the rule to change the event that triggers the running of the speedy trial deadline. Currently, the time begins to run when the petition is filed. With the proposed amendment the time would begin to run on “[t]he date the summons issued on the filing of the petition was served.” This will conform the rule to section 985.219, Florida Statutes (2005).

We agree the amendment is needed to conform the rule, but believe the suggested wording is potentially confusing. We reword it to read: “The date of service of the summons that is issued when the petition is filed” and adopt it as rewritten.

Other than a comment by the Guardian Ad Litem Office in support of the proposed amendment to rule 8.350 (Placement of Child Into Residential Treatment Center After Adjudication of Dependency), all of the comments received were addressed to the proposed amendments to rule 8.257 (General Magistrates). Accordingly, we address most of our remarks to these proposed amendments.

We adopt the proposed amendment to subdivision (f) of rule 8.257. The Committee proposed changing the word “serve” to the word “file” in the first sentence of that subdivision. This change will make subdivision (f) mirror the language in subdivision (e) that refers to the filing of exceptions within ten days. We are cognizant that the current wording of subdivision (f) matches the current wording of several other rules giving the parties ten days to “serve” exceptions to a magistrate’s report. See Fla. Fam. L.R.P. 12.490(f), 12.492(g); Fla. R. Civ. P. 1.490(h); Fla. Prob. R. 5.697(f). We nevertheless find it more imperative for the rule to be internally consistent than for it to match other rules providing for the service of exceptions in other given cases.

Although we are sympathetic to the arguments raised by the commenters to the proposed amendment to subdivision (h) of rule 8.257, which would prohibit magistrates from conducting shelter hearings under section 39.402, Florida Statutes (2005), and adjudicatory hearings under sections 39.507 or 39.809, Florida Statutes (2005), we nevertheless conclude the proposed amendments are necessary and adopt them. There is currently no meaningful opportunity for the child to object to a magistrate conducting a hearing under these provisions. Consequently, there is also no opportunity for the child to waive an objection to the referral. Without provision for such an opportunity in the rules, we believe these hearings must be conducted by an article V judge.

CONCLUSION

We hereby adopt the amendments to the Florida Rules of Juvenile Procedure as set forth in the appendix to this opinion. New language is indicated by underscoring; deletions are indicated by struck-through type. The amendments will become effective on January 1, 2007, at 12:01 a.m.

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

APPENDIX

RULE 8.045. NOTICE TO APPEAR

(a)-(e) [No Change]

(f) Contents. A notice to appear shall contain the following information:

(1) The name and address of the child and the person to whom the child was released.

(2) The date of the offense(s).

(3) The offense(s) charged by statute and municipal ordinance, if applicable.

(4) The counts of each offense.

(5) The time and place where the child is to appear in court.

(6) The name and address of the trial court having jurisdiction to try the offense(s) charged.

(7) The name of the arresting officer or authorized agent of the department.

(8) The signatures of the child and the person to whom the child was released.

(g)-(h) [No Change]

Committee Notes

[No Change]

RULE 8.090. SPEEDY TRIAL

(a) Time. If a petition has been filed alleging a child to have committed a delinquent act, the child shall be brought to an adjudicatory hearing without demand within 90 days of the earlier of the following:

(1) The date the child was taken into custody.

(2) The date the petition was filedof service of the summons that is issued when the petition is filed.

(b)-(m) [No Change]

Committee Notes

[No Change]

RULE 8.135. CORRECTION OF DISPOSITION OR COMMITMENT ORDERS

(a) [No Change]

(b) Motion to Correct Disposition or Commitment Error. A motion to correct any disposition or commitment order error, including an illegal disposition or commitment, may be filed as allowed by this subdivision. The motion must identify the error with specificity and provide a proposed correction. A response to the motion may be filed within 15 days either admitting or contesting the alleged error. Motions may be filed by the state under this subdivision only if the correction of the error would benefit the child or to correct a scrivener’s error.

(1) Motion Before Appeal. During the time allowed for the filing of a notice of appeal, a child, the state, or the department may file a motion to correct a disposition or commitment order error.

(A) This motion stays rendition under Florida Rule of Appellate Procedure 9.020(h).

(B) Unless the trial court determines that the motion can be resolved as a matter of law without a hearing, it shall hold an initial hearing no later than 10 days from the filing of the motion, with notice to all parties, for the express purpose of either ruling on the motion or determining the need for an evidentiary hearing. If an evidentiary hearing is needed, it shall be set no more than 10 days from the date of the initial hearing. Within 30 days from the filing of the motion, the trial court shall file an order ruling on the motion. If no order is filed within 30 days, the motion shall be deemed denied.

(2) Motion Pending Appeal. If an appeal is pending, a child or the state may file in the trial court a motion to correct a disposition or commitment order error. The motion may be filed by appellate counsel and must be served before the party’s first brief is served. A notice of pending motion to correct disposition or commitment error shall be filed in the appellate court, which notice shall automatically extend the time for the filing of the brief, until 10 days after the clerk of the circuit court transmits the supplemental record under Florida Rule of Appellate Procedure 9.140(e)(f)(6).

(A) The motion shall be served on the trial court and on all trial and appellate counsel of record. Unless the motion expressly states that appellate counsel will represent the movant in the trial court, trial counsel will represent the movant on the motion under Florida Rule of Appellate Procedure 9.140(b)(5)(d). If the state is the movant, trial counsel will represent the child unless appellate counsel for the child notifies trial counsel and the trial court that appellate counsel will represent the child on the state’s motion.

(B) The trial court shall resolve this motion in accordance with subdivision (b)(1)(B) of this rule.

(C) Under Florida Rule of Appellate Procedure 9.140(e)(f)(6), the clerk of the circuit court shall supplement the appellate record with the motion, the order, any amended disposition, and, if designated, a transcript of any additional portion of the proceedings.

RULE 8.210. PARTIES AND PARTICIPANTS

(a) [No Change]

(b) Participants. “Participant” means any person who is not a party but who should receive notice of hearings involving the child. Participants include foster parents or the legal custodian of the child, identified prospective parents, actual custodians of the child, grandparents entitled to priority-for adoption considerationnotice of an adoption proceeding as provided by law, the state attorney, and any other person whose participation’may be in the best interest of the child. The court may add additional participants. Participants may be granted leave by the court to be heard without the’necessity of filing a motion to intervene and shall have no other rights of a party except as provided by law.

(c) [No Change]

Committee-Notes

4994 — Amendment.—(b) This — section provides- a-mee-ha-nism to allow the Depart-aenfof-PIealth and Rehabilitative Services or the state attorney to-become-par-ties-on notice-to-all-other parties and the court.

4992 — Amendment..SubdMsion-(b)--al-lows additional parties — -whieh-^houhL-Ml within the definition-of-^parties.” Sections 39.405(4)(b) and 39.437(4)(b)-F-lor-ida-§tat-utes, require service of summons, upon, the “actual custodians.” — The.result-.of.the present rule is that in many instances relatives become parties. — In almost-all-termi■nation-of-parental- rights cases, the foster parents would become parties. — If custodians •should-be-parties in a particular case, rule 8.210(b) would allow them to ■ be parties.

RULE 8.257. GENERAL MAGISTRATES

(a)-(e) [No Change]

(f)Exceptions. The parties may serve file exeeptions~to-thea?eport within 10 days from the time it is served on them. Any party may file cross-exceptions within 5 days from the service of the exceptions. However, the filing of cross-exceptions shall not delay the hearing on the exceptions unless good cause is shown. If no exceptions are filed within that period, the court shall take appropriate action on the report. If exceptions are filed, they shall be heard on reasonable notice by either party or the court.

(g) [No Change]

(h) Prohibition on Magistrate Presiding over Certain Hearings. Notwithstanding the provisions of this rule, a general magistrate shall not preside over a shelter hearing under section 39.402, Florida Statutes, an adjudicatory hearing under section 39.507, Florida Statutes, or an adjudicatory hearing under section 39.809, Florida Statutes.

RULE 8.350. PLACEMENT OF CHILD INTO RESIDENTIAL TREATMENT CENTER AFTER ADJUDICATION OF DEPENDENCY

(a)-(c) [No Change]

(d)Standard of Proof. At the hearing, the court shall determine whether the evidence supporting involuntary commitment of a dependent child to a residential mental health treatment facility is clear and convincing.

RULE 8.545. PROVIDING COUNSEL TO PARTIES

(a) Duty of the Court.

(1) At each hearing, the court shall advise unrepresented parents of their right to have counsel present, unless the parents have voluntarily executed a written surrender of the child and consent to the entry of a court order terminating parental rights.

(2) The court shall appoint counsel for indigent parents as provided by law. The court may appoint counsel for other parties as provided by law.

(3) The court shall ascertain whether the right to counsel is understood. If the right to counsel is waived by any parent the court shall ascertain if the right to counsel is knowingly and intelligently waived.

(4) The court shall enter its findings with respect to the appointment or waiver of counsel of indigent parents or the waiver of the right to have counsel present.

(5) Once counsel has been retained or appointed to represent a parent, the attorney shall continue to represent the parent throughout the proceedings or until the court has approved discontinuing the attorney-client relationship, if the attorney-client relationship is discontinued, the court shall advise the parent of the right to have new counsel retained or appointed for the remainder of the proceedings.

(b) [No Change]

RULE 8.535. POSTDISPOSITION HEARINGS

(a)-(c) [No Change]

(d) Withholding Consent to Adopt.

(1) When a petition for adoption and a favorable home study under section 39.812(5), Florida Statutes, have been filed and the department’s consent has not been filed, the court shall conduct a hearing to determine if the department has unreasonably withheld consent.

(2) In reviewing whether the department unreasonably withheld its consent to adopt, the court shall determine whether the department abused its discretion by withholding consent to the adoption by the petitioner. In making this determination, the court shall consider all relevant information, including information obtained or otherwise used by the, department in selecting the adoptive family, pursuant to Florida Administrative Code Chapter 65C.

(3) If the court determines that the department unreasonably withheld consent to adopt, and the petitioner has filed with the court a favorable home study as required by law, the court shall incorporate its findings into a written order with specific findings of fact as to how the department abused its discretion in withholding its consent to adopt, and the consent of the department shall be waived.

FORM 8.911. UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT AFFIDAVIT

UNIFORM CU-I-LD-GUSTQDY JURISDICTION AND ENFORCEMENT ACT-AFFIDAVIT

—L—In the past-five-years the child resided-a^the-following-addresses with the following persons:

—2;- Affiant .has/has-not--■■■■■-. participated as-a^arty-er — witness-in other-litigation concerning the custody of the-child in this or any other state. — Speci-fic-al-lyy-the-name of the other case(s-) -and affiant’s involvement -were -.

—3,—Affiant.,-.does/does ■ not-have any information of any custody proceeding coneer-ning the child pending in this or any other state. — Specifically,-the-name-of-any-other custody case amd-the location of its count are.

—4—Affiant .. .-■--■does/does not.know of any person(s) who .. . is/is not.a party 4o-thls-proceeding- and who has physical custody of the child on-claims to-have-custody-or visitation rights-with respect to the child.

See Fla. Sup.Ct.App. Fam. L. Form 12.902(d).

FORM 8.930. JUVENILE NOTICE TO APPEAR

JUVENILE NOTICE TO APPEAR

DATE.AGENCY.

CASE NO.

PARENT, ADULT RELATIVE, LEGAL GUARDIAN.(name).

I am the .(relationship to child). of .(child’s name). and promise to ensure that the child appears on .(date). at .(time). at .(location). to-appear in court. I also promise immediately to notify the office of the state attorney at.(telephone number).and the clerk of the court at.(telephone number).of any change in the child’s address.

Signature of Parent/Adult Relative/Legal Guardian

.(address).

.(telephone number).

.(date).

.(address and telephone number of child, if different).

I,.(child’s name)., understand that I have been charged with a law violation,.(offense(s))., and that I am being released at this time to the custody of .(parent, adult relative, or legal guardian’s name).

I promise to appear on.(date). at .(time) at (location).-to-appear in court, and to appear as required for any additional conferences or appearances scheduled by DJJ or the court. I understand that my failure to appear shall result in a custody order being issued and that I will be picked up and taken to detention.

Child’s Signature

Date.

Arresting Officer.

Releasing officer or DJJ counselor authorizing release

DJJ Intake Telephone Number

ATTACH TO ARREST AFFIDAVIT

FORM 8.964. DEPENDENCY PETITION

PETITION FOR DEPENDENCY COMES NOW, Petitioner, .(name)., by and through undersigned counsel, and petitions this court to adjudicate the above-named minor child(ren) to be dependent within the meaning and intent of chapter 39, Florida Statutes. As grounds, petitioner alleges the following:

1. This court has jurisdiction over the minor child(ren), .(name(s))., a .(gender).child, whose date(s) of birth is/are ., and who, at the time the dependency arose, was/were in the custody of.(name(s)).

2. The natural mother of the minor child(ren) is.(name)., a resident of .(state)., whose address is by ........

3. The father of the minor children), .(name(s)). is.(name)., whose address is.The father .is .is not married to the mother, and.is.is not listed on the child(ren)’s birth certificate(s). The mother filed a Sworn Statement About Identity or Location of Father with this court on .(date)., which named .as the father.

4. The -UCGJAUCCJEA Affidavit .is attached.was filed with the Court on.(date).and is incorporated by reference.

5. The children) is/are dependent within the meaning and intent of chapter 39, Florida Statutes, in that the mother/father/parents/legal custodian/earegiver(s) abused, abandoned, or neglected the minor child(ren) on or about .(date)., by: .......

and that these activities and environments cause the child(ren)’s physical, mental, or emotional health to be in danger of being significantly impaired.

OR

5. The above named child(ren) is/are presently under substantial risk or imminent threat of harm or abuse or neglect, within the meaning and intent of chapter 39, Florida Statutes, which is likely to cause the child(ren)’s physical health to be significantly impaired because .......

6. The department is unable to ensure the protection of the minor child(ren) without judicial intervention.

7. The mother/father/parents has/have received the following services:........

8.A shelter hearing was held on .(date)., and the ehild(ren) was/ were placed in the custody of ..........

9. An arraignment hearing .... needs to be scheduled.

.... is scheduled for .(date and time)....

10. A guardian ad litem ..... needs to be appointed.

..... was appointed at the shelter hearing to represent the children).

11. Under chapter 39, Florida Statutes, the clerk of the court is required to issue a summons to the following parents or custodians:

The natural mother, .(name)., whose address is.

The natural father, .(name)...... whose address is......

....(Additional fathers and their addresses) ....

WHEREFORE, the petitioner asks that process may issue in due course to bring the above-named parties before the court to be dealt with according to the law, to adjudicate the named minor child(ren) named to be dependent.

....(Petitioner’s name).....

.(Attorney’s name)...

.(address and telephone number) .

.Florida Bar number.

Verification

Certificate of service

NOTICE OF RIGHTS

PLEASE READ THIS PETITION BEFORE ENTERING THE COURTROOM.

YOU HAVE A RIGHT TO HAVE COUNSEL PRESENT AT THIS HEARING.

BY COPY OF THIS PETITION, THE PARENTS, CAREGIVERS, AND/OR LEGAL CUSTODIANS ARE NOTIFIED OF THEIR RIGHT TO HAVE LEGAL COUNSEL PRESENT FOR ANY PROCEEDING RESULTING FROM THIS PETITION OR TO REQUEST THE COURT TO HAVE COUNSEL APPOINTED, IF INDIGENT.

Further, these persons are informed of the following:

An arraignment is set on this matter for.(date)., at.a.m./p.m., at.(location).

The purpose of the arraignment is to advise as to the allegations contained in the Petition For Dependency. When your case is called, the Judge will ask you to enter a plea to this petition. The plea entered may be one of the following:

1. Admit: This means you admit that the petition states the truth and you do not want a trial.

2. Consent: This means you neither admit nor deny the petition, but do not want a trial.

(If you enter either of the above two pleas, the court will set a disposition date for the matter. At disposition, the court will decide where the child will stay and under what conditions).

8. Deny: This means you deny the allegations of the petition and wish the state to attempt to prove them at a trial.

4. Continue: This means you wish time to confer with an attorney, before entering a plea. If you enter this plea, the court will schedule another hearing in approximately 2 weeks. At that time, another arraignment hearing will be held, and you (or your attorney) must enter one of the above three pleas.

In accordance with the Americans With Disabilities Act persons needing a special accommodation to participate in this proceeding should contact the office of the Court Administrator as soon as possible, but no later than 7 days before the proceeding at .(phone number) .

FORM 8.966. ADJUDICATION ORDER-DEPENDENCY

ORDER OF ADJUDICATION

THIS CAUSE came before this court on .(date)., under chapter 39, Florida Statutes, for adjudication of the Petition for Dependency filed by .(petitioner’s name). Present before the court were

.(Name)., Petitioner

.(Name)., Attorney for the petitioner

.(Name)., Attorney for the department

.(N ame)., Department caseworker

.(Name)., Mother

.(Name)., Attorney for mother

.(Name)., Father of .(child).

.(Name).. Attorney for father

.(Name)., Guardian ad li-tem

.(Name)., Attorney for guardian ad litem

.(Name)., Legal custodian

.(Name)., Attorney for legal custodian

.(Name(s))., Minor children)

.(Name)., Attorney ad li-tem for minor children)

.(Name)., Other ......

The court having heard testimony and argument and being otherwise fully advised in the premises finds:

1. That the minor children) who is/are the subject matter of these proceedings, is/are dependent within the meaning and intent of chapter 39, Florida Statutes, and is/are (a) resident(s) of the State of Florida.

2. The mother,.(name).:

.was.was not noticed of this hearing;
.did not appear, and the court:
.entered a Consent by defaultfor failure to appear after proper notice.
.did not enter a Consent by-de-fauitfor failure to appear after proper notice.
.appeared with counsel;
.appeared without counsel and:
.was .was not advised of her right to legal counsel,
. knowingly, intelligently, and voluntarily . waived . did not waive her right to legal counsel and
.was.was not determined to qualify as indigent and
.... was.was not appointed an attorney.

3.The father,.(name).:

.was.was not noticed of this hearing;

.did not appear, and the court:

.entered a Consent by defaultfor failure to appear after proper notice. .did not enter a Consent by-de-faaltfor failure to appear after proper notice.

.appeared with counsel;

.appeared without counsel and:

.was .was not advised of his right to legal counsel,
. knowingly, intelligently, and voluntarily waived.did not waive his right to legal counsel and
.was.was not determined to qualify as indigent and
.was.was not appointed an attorney.

.4. That the children) is/are dependent within the meaning and intent of chapter 39, Florida Statutes, in that the mother, .... (name)., abused, neglected, or abandoned the minor children) by .These facts were proven by . preponderance of the evidence .clear and convincing evidence.

.5. That the child(ren) is/are dependent within the meaning and intent of chapter 39, Florida Statutes, in that the father,.(name)., abused, neglected, or abandoned the minor children) by .These facts were proven by . preponderance of the evidence .clear and convincing evidence.

COMMENT: Use 6, 7, and 8 only if the child is in out-of-home placement.

6. That the Court finds that it is in the best interest of the child(ren) to remain in out-of-home care.

7. That every reasonable effort was made to eliminate the need for placement of the child(ren) in out-of-home care but the present circumstances of the child(ren) and the . mother . father are such that out-of-home care is the only way to ensure the health, safety, and well being of the child(ren), in that.

8. That the ehild(ren)’s placement in .(type of placement).is in a setting which is as family like and as close to the home as possible, consistent with the child(ren)’s best interests and special needs.

9. That returning the minor child(ren) to the custody of .(person who had previous legal custody).would be contrary to the best interest and welfare of the minor child(ren).

THEREFORE, based upon the foregoing findings, it is ORDERED AND ADJUDGED that:

1. The minor child(ren), .(name(s))., is/are adjudicated dependent.

2. The child(ren) shall remain in the care and custody of

.the department in shelter care
.other.(name).
pending disposition.

3. This court shall retain jurisdiction over this cause to enter any such further orders that may be deemed necessary for the best interest and welfare of the minor child(ren).

4. All prior orders not inconsistent with the present order shall remain in full force and effect.

5.Disposition is scheduled for ... (date)., at.a.m./p.m.

DONE AND ORDERED on .. .date.

Circuit Judge

NOTICE OF HEARING

The Juvenile Court hereby gives notice of hearing in the above styled cause on .(date). at . a.m./p.m., before .(judge)., at .(location)., or as soon thereafter as counsel can be heard.

In accordance with the Americans With Disabilities Act, persons needing a special accommodation to participate in this proceeding should contact the Office of the Court Administrator no later than 7 days before the proceeding at .(telephone number).

PLEASE BE GOVERNED ACCORDINGLY.

Copies furnished to:

FORM 8.975. DEPENDENCY ORDER WITHHOLDING ADJUDICATION

ORDER OF ADJUDICATION

THIS CAUSE came before this court on .(date)., under chapter 39, Florida Statutes, for adjudication of the Petition for Dependency filed by .(petitioner’s name). Present before the court were

.(Name)., Petitioner

.(Name)., Attorney for the petitioner

.(Name)., Attorney for the department

.(Name)., Department caseworker

.(Name)., Mother

.(Name)., Attorney for mother

.(Name)., Father of .(child).

.(Name)., Attorney for father

.(Name)., Guardian ad li-tem

.(N ame)., Attorney for guardian ad litem

.(Name)., Legal custodian

.(Name)., Attornéy for legal custodian

.....(Name).,Other

The court having heard testimony and argument and being otherwise fully advised in the premises finds:

1. That the minor child(ren) who is/are the subject matter of these proceedings, is/are dependent within the meaning and intent of chapter 39, Florida Statutes, and is/are (a) resident(s) of the State of Florida.

2. The mother,.(name).:

.was.was not noticed of this hearing;
.did not appear, and the court:
.entered a Consent for failure to appear after proper notice.
. did not enter a Consent for failure to appear after proper notice.
.appeared with counsel;
.appeared without counsel and:
.was .was not advised of her right to legal counsel,
. knowingly, intelligently, and voluntarily waived.did not waive her right to legal counsel and
.was .was not determined to qualify as indigent and
.... was.was not appointed an attorney.

3.The father,.(name).:

.was.was not noticed of this hearing;

.did not appear, and the court:
.entered a Consent for failure to appear after proper notice.
. did not enter a Consent for failure to appear after proper notice.

.appeared with counsel;

.appeared without counsel and:

.was .was not advised of his right to legal counsel,
. knowingly, intelligently, and voluntarily waived.did not waive his right to legal counsel and
.was.was not determined to qualify as indigent and .was.was not appointed an attorney.

.4. That the child(ren) is/are dependent within the meaning and intent of chapter 39, Florida Statutes, in that the mother, .... (name)., abused, neglected or abandoned the minor child(ren) by .These facts were proven by . preponderance of the evidence .clear and convincing evidence.

.5. That the child(ren) is/are dependent within the meaning and intent of chapter 39, Florida Statutes, in that the father,.(name)., abused, neglected or abandoned the minor child(ren) by .These facts were proven by . preponderance of the evidence .clear and convincing evidence.

. 6. That the parties have filed a mediation agreement in which the par-entis) consent(s) to the adjudication of dependency of the child(ren) in conjunction with a withhold of adjudication, which the court accepts.

7. Under section 39.507(5), Florida Statutes, the Court finds that the child(ren) named in the petition are dependent, but finds that no action other than supervision in the child(ren)’s home is required.

THEREFORE, based upon the foregoing findings, it is ORDERED AND ADJUDGED that:

1. Under section 39.507(5), Florida Statutes, the Court hereby withholds adjudication of dependency of the minor child(ren). The child(ren) shall be .returned/continued..in (child(ren)’s home) under the supervision of the department. If this court later finds that the parents have not complied with the conditions of supervision imposed, the court may, after a hearing to establish the noncompliance, but without further evidence of the state of dependency, enter an order of adjudication.

2. This court shall retain jurisdiction over this cause to enter any such further orders that may be deemed necessary for the best interest and welfare of the minor child(ren).

3. All prior orders not inconsistent with the present order shall remain in full force and effect.

4. Disposition is scheduled for .(date)., at.a.m./p.m.

DONE AND ORDERED on .date.

Circuit Judge

NOTICE OF HEARING

The Juvenile Court hereby gives notice of hearing in the above styled cause on .(date). at .a.m./p.m., before .(judge)., at .(loca-

tion)., or as soon thereafter as counsel can be heard.

In accordance with the Americans With Disabilities Act, persons needing a special accommodation to participate in this proceeding should contact the Office of the Court Administrator no later than 7 days before the proceeding at .(telephone number).

PLEASE BE GOVERNED ACCORDINGLY.

Copies furnished to:

FORM 8.980. PETITION FOR TERMINATION OF PARENTAL RIGHTS BASED ON VOLUNTARY RELINQUISHMENT

PETITION FOR TERMINATION OF PARENTAL RIGHTS

, Petitioner, .(name)., respectfully petitions this Court for termination of parental rights and permanent commitment of the minor child(ren), .(name(s))., to .(agency name).for the purpose of subsequent adoption, and as grounds states the following:

A. PARTIES

1. The child, .(name)., is a male/female child born on .(date)., at .(city, county, state). At the time of the filing of this petition, the child is.(age). A copy of the child’s birth certificate is attached to this Petition and incorporated as Petitioner’s Exhibit.

COMMENT: ’ Repeat above for each child on petition.

2. The children) is/are presently in the care and custody of .(name)., and is/are residing in. County, Florida.

3. An affidavit under the Uniform Child Custody Jurisdiction and Enforcement Act is attached to this as Petitioner’s Exhibit.

4. The natural mother of the child(ren) is .(name)., who resides at .........

5.The natural/alleged/putative father of the ehild(ren) .(name(s)). is .(name)., who resides at ........

COMMENT: Repeat # 5 as necessary.

6.A guardian ad litem.has. has not been appointed to represent the interests of the children) in this cause.

B. GROUNDS FOR TERMINATION

1. The parent(s) have been advised of their right to legal counsel at all hearings that they attended.

2. The mother, .(name)., freely, knowingly, voluntarily, and . with.without advice of legal counsel executed an Affidavit and Acknowledgment of Surrender, Consent, and Waiver of Notice on.(date)., for termination of her parental rights to the minor child, __ (name)., under section 39.806(l)(a), Florida Statutes.

COMMENT: Repeat above as necessary.

3. The father,.(name)., freely, knowingly, and voluntarily, and . with.without advice of legal counsel executed an Affidavit and Acknowledgment of Surrender, Consent, and Waiver of Notice on (date)., for termination of his parental rights to the minor child, .(name)., under section 39.806(l)(a), Florida Statutes.

COMMENT: Repeat above as necessary.

4. Under the provisions of chapter 39, Florida Statutes, it is in the manifest best interest of the ehild(ren) for parental

rights to be terminated for the following reasons:

.allegations which correspond to sections 39.810(1)&:(11)> Florida Statutes.

5.A copy of this petition shall be served on the natural mother, .(name).; the father(s), .(name(s)).; the custodian, .(name).; and the guardian' ad litem,.(name)...

6.This petition is filed in good faith and under oath.

WHEREFORE, the petitioner respectfully requests that this court grant this petition; find that the parents have voluntarily surrendered their parental rights to the minor children); find that termination of parental rights is in the manifest best interests of this/these children); and that this court enter an order permanently committing ' this/these children) to the .(name). for subsequent adoption.

.(petitioner’s name and identifying information).

Verification

.(attorney’s name)...

.(address and telephone number) .

.Florida Bar number.

Certificate of Service

FORM 8.981. PETITION FOR INVOLUNTARY TERMINATION OF PARENTAL RIGHTS

PETITION FOR TERMINATION OF PARENTAL RIGHTS

Petitioner, (petitioner’s name)., respectfully petitions this court for termination of parental rights and permanent commitment of the minor children), .(name(s))., to .(agency name).for the purpose of subsequent adoption, and as grounds states the following:

A. PARTIES

1. The child, .(name)., is a male/female child born on .(date)., at .(city, county, state). At the time of the filing of this petition, the child is.(age). A copy of the child’s birth certificate is attached to this Petition and incorporated as Petitioner’s Exhibit.

COMMENT: Repeat above for each child on petition.

2. The children) is/are presently in the care and custody of .(name)., and is/are residing in . County, Florida.

3. An affidavit under the Uniform Child Custody Jurisdiction and Enforcement Act is attached to this as Petitioner’s Exhibit.

4. The natural mother of the child(ren) is .(name)., who resides at ......

5.The natural/alleged/putative father of the children) .(name(s)). is .(name)., who resides at .......

COMMENT: Repeat # 5 as necessary.

6.A guardian ad litem.has. has not been appointed to represent the interests of the ehild(ren) in this cause.

B. GROUNDS FOR TERMINATION

1. The parents have been advised of their right to legal counsel at all hearings that they attended.

2. On or about.(date(s))., the following occurred: .(acts which were basis for dependency or TPR, if filed directly) .

3. The mother has .(grounds for TPR).the minor child(ren) within the meaning and intent of section 39.806, Florida Statutes, in that: .(allegations which form the statutory basis for grounds).

4. The father has .(grounds for TPR).the minor children) within the meaning and intent of section 39.806, Florida Statutes, in that: .(allegations which form the statutory basis for grounds).

5. Under the provisions of sections 39.806(1)B(11)39.810(1)-(11), Florida Statutes, it is in the manifest best interests of the children) for parental rights of .(name(s)). to be terminated for the following reasons: .(allegations for each statutory factor in the manifest best interest test).

6. A copy of this petition shall be served on the natural mother, .(name)., father(s), .(name(s))., the custodian, .(name).; and the guardian ad litem,.(name).

7. This petition is filed by the petitioner in good faith and under oath.

WHEREFORE, the petitioner respectfully requests that this court grant this petition; find that the parents have abused, neglected, or abandoned the minor child(ren); find that termination of parental rights is in the manifest best interests of this/these children); and that this court enter an order permanently committing this/these child(ren) to.(agency). for subsequent adoption.

.(petitioner’s name and identifying information).

Verification

.....(attorney’s name).

....(address and telephone number).

....(Florida Bar number).

Certificate of Service

FORM 8.983. ADJUDICATION ORDER AND JUDGMENT OF INVOLUNTARY TERMINATION OF PARENTAL RIGHTS

ORDER OF ADJUDICATION AND JUDGMENT OF INVOLUNTARY TERMINATION OF PARENTAL RIGHTS

THIS CAUSE came before this court on .(date).for an adjudicatory hearing on the Petition for Termination of Parental Rights filed by.(name). Present before the court were: (persons present). ...

.(Name).Petitioner

.(Name).. Attorney for the petitioner

. (Name)., Attorney for the department

. (Name)., Department caseworker

.(Name)., Child

.(Name).Attorney for Child

.(Name)., Mother

.(Name)., Attorney for mother

. (Name)., Father of . (child).

.(Name)., Attorney for father

.(Name)., Guardian ad litem

.(Name)., Attorney for guardian ad litem

.(Name)., Legal custodian

. (Name)., Attorney for legal custodian

..(Name).,_Other ......

The court has carefully considered and weighed the testimony of all witnesses. The court has received and reviewed all exhibits.

COMMENT: Add the following only if necessary.

The petitioner has sought termination of the parental rights of.(parent(s)) who is/are subject of petition.

The court finds that the parent(s), .(name(s))., has/have .(list grounds proved)., under chapter 39, Florida Statutes. The grounds were proved by clear and convincing evidence. Further, the court finds that termination of parental rights of the parent(s), .name(s)., is clearly in the manifest best interests of the child(ren). The findings of fact and conclusions of law supporting this decision are as follows:

1. At all stages of these proceedings the parent(s) was/were advised of their right to legal counsel, or was/were in fact represented by counsel.

2. On or about.(date(s))., the following occurred; .(acts which were basis for dependency or TPR, if filed directly) .

3. The mother has .(grounds for TPR).the minor child(ren) within the meaning and intent of section 39.806, Florida Statutes, in that: .(findings that form the statutory basis for grounds).

4. The father has .(grounds for TPR).the minor children) within the meaning and intent of section 39.806, Florida Statutes, in that: .(findings that form the statutory basis for grounds).

5. The minor children) to whom .(parent’s(s’) name(s)). parental rights are being terminated are at substantial risk of significant harm. Termination of parental rights is the least restrictive means to protect the child(ren) from harm.

6.Under the provisions of sections 39t§0639.810(1)-(11), Florida Statutes, it is in the manifest best interests of the children) for parental rights of .(name(s)).to be terminated for the following reasons below.(findings for. each-statutory factor in the-manifest best interest test). The court has considered all relevant factors and finds as follows:

(a) Regarding any suitable permanent custody arrangement with a relative of the child, the court finds.

(b) Regarding 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, the court finds.

(c) Regarding 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, the court finds ......

(d) Regarding 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, the court finds.....

(e) Regarding 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, the court finds ......

(f)Regarding 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, the court finds .......

(g) Regarding 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, the court finds .

(h) Regarding the length of time that the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity, the court finds .......

(i)Regarding the depth of the relationship existing between the child and present custodian, the court finds ........

(j)Regarding 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, the court finds ......

(k) Regarding the recommendations for the child provided by the child’s guardian ad litem or the legal representative, the court finds......

(l) Regarding other relevant factors including ., the court finds ......

COMMENT: Add items 7, 8, and 9 as applicable.

7. Under section 39.811(6)(.), Florida Statutes, the court terminates the parental rights of only.(parent whose rights are being terminated). as to the minor children), .(child(ren)’s name(s)).Specifically, the court finds that.(specific findings of fact under section 39.811(6), Florida Statutes).......

8. Under sections 39.509(5) and 39.811(7)(a), Florida Statutes, the court finds that continued grandparental visitation is not in the best interests of the children) or that such visitation would interfere with the permanency goals for the children) for the following reasons .....

9. Under section 39.811(7)(b), Florida Statutes, the court finds that although parental rights are being terminated, the best interests of.(names of child(ren) to which this provision applies).support continued communication or contact by .(names of parents, siblings, or relatives of the parent whose rights are terminated and to which this provision applies) .except as provided above. The nature and frequency of the communication or contact shall be as follows . It may be reviewed on motion of any party or an identified prospective adoptive parent.

THEREFORE, after weighing credibility of witnesses, weighing all statutory factors, and based on the findings of fact and conclusions of law above, the court hereby ORDERS AND ADJUDGES THAT:

1. The petition filed by .(name) is granted as to the parents), .(name(s)).

2. The parental rights of the father, .(name)., and of the mother, .(name)., to the child, .(name)., are hereby terminated under section 39.806(.), Florida Statutes.

COMMENT: Repeat the above for each child and parent, as necessary.

3.Under sections 39,811(2) and (5), Florida Statutes, Tthe children), .(name(s))., are placed in the custody of. (agency) . for the purpose of subsequent adoption.

4. The 30-day permanency plan required by section 39.811(8), Florida Statutes, shall be filed and heard at .(time). on .(date). in .(location).

DONE AND ORDERED on .(date)., in.(city and county) ., Florida

Circuit Judge

NOTICE

Under section 39.815, Florida Statutes, any child, any parent, guardian ad litem, or legal custodian of any child, any other party to the proceeding who is affected by an order of the court, or the department may appeal to the appropriate District Court of Appeal within the time and in the manner prescribed by the Florida Rules of Appellate Procedure, which is 30 days from the date this order is rendered (filed).

Copies to:_

      . We correct a typographical error in the proposed form 8.981 by deleting "39.806(1)B(11)” and adding "39.810(1)-(11).”

      . Section 39.402 sets forth the factual circumstances which must exist and the procedures which the Department of Children and Family Services (Department) must follow in order to legally place a child into a protective shelter. A shelter hearing refers to the hearing which must take place, in all but very strict circumstances, before a child can be placed into a shelter.
      Section 39.507 governs adjudicatory hearings conducted after the Department has filed a petition for dependency. The purpose of a hearing under this section is to determine whether the child or children in question have been abused, abandoned, or neglected, and are, therefore, in need of intervention by the Department. Subsection (l)(b) provides, in pertinent part: "Adjudicatory hearings shall be conducted by the judge without a jury ..." There are other references to "judge” and "the court” throughout the statutory section.
      Section 39.809 governs adjudicatory hearings conducted to determine whether a parent's parental rights should be terminated. Subsection (3) provides, in pertinent part: "The adjudicatory hearing must be conducted by the judge without a jury ...”

      . Art. V, Fla. Const.